FEMA: Defense Production Act no longer needed to secure thousands of test kits

FEMA: Defense Production Act no longer needed to secure thousands of test kits


The Federal Emergency Management Agency said it ultimately did not have to use the Defense Production Act to secure medical equipment needed to fight the coronavirus pandemic, reversing an announcement by the head of the agency on Tuesday morning.

FEMA Administrator Peter Gaynor had said earlier in the day that the Trump administration would formally implement the emergency measure to stock up on vital medical supplies.

“So, just a little while ago, my team came in, and we’re actually going to use the DPA for first time today,” Gaynor told CNN.

He said triggering the act would help access “about 60,000 test kits,” and added that the administration would insert “DPA language” into the mass contracts for the federal government’s order of 500 million personal protective masks.

Gaynor later stressed on Fox News’ “Fox & Friends” that the law would be used narrowly as “leverage.”

But late Tuesday night, FEMA press secretary Lizzie Litzow changed coursed, writing: “At the last minute we were able to procure the test kits from the private market without evoking the DPA.”

Federal delays in rolling out widespread testing have sparked criticism from state officials, who have said they are woefully underprepared to handle the unfurling outbreak. One testing kit serves roughly 300 to 400 patients.

President Donald Trump last week invoked the DPA as the administration broadened its response to the public health crisis, but he has resisted actually activating the statute — insisting that governors bear more responsibility for obtaining potentially life-saving supplies and arguing that the private sector would pitch in to supply needed equipment voluntarily.

Meanwhile, state authorities and health experts have called for more forceful federal intervention as they struggle to get their hands on ventilators, hospital beds and other necessities before health care systems are overwhelmed by the rapidly spreading outbreak.

“Even the most conservative political theories recognize that governments do sometimes have to take directive actions and markets alone cannot solve these problems,” said Mildred Solomon, president of the bioethics-focused Hastings Center. Nearly 1,400 bioethicists and health leaders have signed a letter organized by Hastings demanding that Trump use the DPA and other federal powers to secure supplies and cover COVID-19 treatments.

“It should be a war mentality, and the government should be the leader,” Solomon told POLITICO.

When the federal government invokes the DPA, private manufacturers are required to fill federal orders for medical equipment before any other. But implementing the law does not do anything to increase production of these items, which increasingly are in short supply.

Even amid a push to expand the nation’s testing capacity, for instance, there are looming shortages of key materials needed to run tests.

Trump has alternately said state officials have been given everything they need, particularly for testing, and that they need to provide some essential supplies — like protective masks — themselves. State leaders, including New York Governor Andrew Cuomo, have railed against the approach, urging the president to “do more.”

Cuomo said on Sunday that his administration had overpaid to secure desperately needed masks. Trump referenced possible price gouging on necessary equipment in a Monday press conference, telling reporters, “We will not allow anyone to exploit Americans for profit.”

Gaynor appeared to take a softer approach to invoking the act in his appearance on Fox News. “We ask every governor — if you can find it, buy it. We are ready to use the Defense Production Act,” he said. “If we need as it leverage, we have it as leverage now.”

The FEMA chief told CNN that the administration “wanted to be thoughtful about not upsetting, you know, the balance,” and ensure that “we can get it out to the market and the federal government not consume it all.”

Some American manufacturers have privately expressed concerns that it is more difficult to ramp up production of medical equipment without clear guidance from the federal government outlining what materials are needed — and where.

But other manufacturers are moving forward with plans to begin churning out medical equipment even without federal orders.

Bill Ford, the head of Ford Motor Company, said on Tuesday that his company is “going as fast as we can” to furnish medical supplies through four projects: working with GE to make ventilators; working with 3M to make air purifying respirators; and working in-house to 3-D print face shields and N95 masks.

“We’re doing it on our own,” Ford told NBC News’ “Today” show. “Obviously, the White House has put a call out for companies to help, but frankly, we were doing this, getting all this in motion before that.”

Though the president had pushed off invoking the DPA, Health and Human Services Secretary Alex Azar said in late February that his department could use the measure to procure a range of necessary personal protective equipment.

“We’ve spoken of procuring at least 300 million N95 masks,” he told reporters last month, adding, “We need additional gowns — the Tyvek gowns, as well as gloves.”

The president’s executive order directed Azar to work with Commerce Secretary Wilbur Ross and other officials to determine top priorities and allocate resources. The Food and Drug Administration and HHS referred questions about the process to FEMA.

The coronavirus crisis is not the first time the White House has struggled with the DPA. In 2018, then-Energy Secretary Rick Perry, backed by the coal industry, presented a plan to Trump that would have used the act and other emergency laws to force utilities to buy coal from struggling U.S. miners.

But the plan ran aground at the White House due to opposition from members of the National Security Council and National Economic Council, who questioned the move’s legality and impacts on electricity bills.

Gavin Bade, Matthew Choi and David Lim contributed to this report.

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