FEMA Temporary Ruling on Allocation of Personal Protective Equipment (PPE)
A Federal Emergency Management Agency FEMA ruling on medical resources will be effective until August 10, 2020. This action has been taken in response to the immediate need for Personal Protective Equipment (PPE) caused by the COVID-19 epidemic. Recent studies have shown that COVID-19 is possibly transmitted through contact with respiratory droplets or contact with surfaces that have the virus on them. Because the virus may be spread by people not showing symptoms the need for PPE is urgently required to protect health workers and people with underlying health conditions.
Action Taken in Response to Executive Orders
FEMA’s ruling is part of a response to a series of executive orders given by President Donald Trump. These orders include:
- The Defense Production Act of 1950, as amended (“DPA” or “the Act”), and specifically sections 101 and 704 of the Act, 50 U.S.C. 4511, 4554;
- Executive Order 13909, 85 FR 16227 (Mar. 23, 2020);
- Executive Order 13910, 85 FR 17001 (Mar. 26, 2020);
- Executive Order 13911, 85 FR 18403 (Apr. 1, 2020);
- DHS Delegation Number 09052 Rev. 00.1, “Delegation of Defense Production Act Authority to the Administrator of the Federal Emergency Management Agency” (Apr. 1, 2020); and
- The Presidential Memorandum on Allocating Certain Scarce or Threatened Health and Medical Resources to Domestic Use (April 3, 2020).
Provisions of FEMA Ruling on Medical Resources
Banning of Exports
The ruling allocates that scarce or threatened materials shall not be exported without explicit approval of FEMA. Because of this, any items covered under this ruling will be held by the U.S. Customs and Border Patrol (CBP) until FEMA determines to allow export or return for domestic usage. In making these determinations FEMA will: consider:
- Domestic requirements for the item,
- Overall effect on the supply chain,
- Any hoarding or price gouging circumstances,
- Quantity and quality of items,
- Humanitarian considerations,
- International considerations.
Exception for Continuous Export Agreements
FEMA will not purchase these items from shipments made by or on behalf of U.S. manufacturers with continuous export agreements with foreign customers. This would pertain to orders in effect since at least January 1, 2020, so long as at least 80 percent of such manufacturer’s domestic production of covered materials, on a per item basis, was distributed in the United States in the preceding 12 months.
Investigations and Requests for Information
FEMA has been empowered to undertake investigations and issue requests for information to enforce these rulings. Failure to comply fully with these ruling may result in a fine of not more than $10,000 or imprisonment for not more than one year, or both.
Documentation of Changes
Due to the nature of the ongoing situation FEMA may also determine that additional items will fall under these rules. This may occur if the item is crucial to national defense requirements and will not cause significant disruption to the domestic markets. As required by the Administrative Procedure Act (APA), FEMA must publish notice of any changes in requirements on the Federal Register. Therefore persons or parties with interest in these changes will then be able to submit data, views or arguments prior to final execution.
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