Tuesday, May 5, 2020

COVID-19 Legal Update: Understanding Executive Order 13917 (Delegating Defense Production Act Authority to USDA Re: Food Supply Chain Resources)

By Brook Duer, Staff Attorney

On April 28, 2020, President Donald Trump issued Executive Order 13917, titled “Delegating Authority Under the DPA with Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19.”  It was published in the Federal Register on May 1, 2020, at 85 FR 26313.

  • Media accounts in the days leading up to and since its issuance have characterized its contents in many inaccurate ways, even going so far as to say the President ordered meat packing plants to re-open if closed due to COVID-19 diagnoses in plant workers.  That is not what the Executive Order says. 

Agricultural producers, processors, and food manufacturers in all sectors, not just proteins, need to understand what this EO says and does not say. 

  • The United States is heading into a phase of the COVID-19 pandemic that will include on-going responsibilities to monitor and manage an agricultural workforce through a full planting, growing, and harvest season.  Efforts will be required to achieve/maintain levels of production and delivery ensuring continued farm viability.
  • In the case of food processors and manufacturers, the continued objective remains to achieve “normal” production and delivery while coping with disruptions caused by supply chain alterations as well as employee illness and absence, all to be achieved without worsening the disease’s spread.

The Executive Order is the first foray into what likely will be a public set of “lessons learned” about accomplishing these objectives.

What Executive Order 13917 says:

  • It is important that processors of beef, pork, and poultry (“meat and poultry”) continue operating and closures of such facilities threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the national emergency.  Meat and poultry in the food supply chain are a scarce and critical material to the national defense and meet the criteria specified in the Defense Production Act (DPA) at 50 U.S.C. 4511(b)
  • The President’s powers to require performance of contracts or orders (other than contracts of employment) and to allocate materials, services, and facilities under the DPA are delegated to the USDA Secretary.  The delegated powers are limited to food supply chain resources, including meat and poultry, during the national emergency” caused by COVID-19.
  • The USDA Secretary shall use the delegated authority to determine priorities and allocations of materials, services, and facilities to ensure the continued supply of meat and poultry consistent with CDC and OSHA guidance for meat and poultry processing plants issued on April 26, 2020. 
  • The USDA Secretary has authority to issue Orders and adopt and revise Regulations to implement the Executive Order.  

As a result, the USDA Secretary must act first, by way of an Order authorized by the Defense Production Act or a Regulation (emergency or in accordance with the routine legally-authorized promulgation process), before any action is required to be taken by a meat or poultry processor.  The specific action(s) that may be required to be taken by a meat or poultry processor are within the discretion of the USDA Secretary.  

Simply by the issuance of the Executive Order itself, no particular actions are required to be taken by the USDA Secretary, nor are particular actions required to be taken by meat or poultry processors.  As such, it will be important as the days and weeks pass to pay attention to the communication coming from the USDA Secretary on meat and poultry plant operations.  Through the delegation of authority in the Executive Order, President Trump has directed that the USDA Secretary, rather than the President himself, will make any necessary decisions on use of the DPA.    

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.


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