Make PPE in America Act

II Calendar No. 668 117TH CONGRESS 2D SESSION S. 1306 [Report No. 117–269] To provide for domestic sourcing of personal protective equipment, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 22, 2021 Mr. PORTMAN (for himself, Mr. PETERS, and Mrs. GILLIBRAND) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs DECEMBER 19, 2022 Reported by Mr. PETERS, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To provide for domestic sourcing of personal protective equipment, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Make PPE in America 4 Act’’. 5 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1306 RS SEC. 2. FINDINGS. 1 Congress makes the following findings: 2 (1) The COVID–19 pandemic has exposed the 3 vulnerability of the United States supply chains for, 4 and lack of domestic production of, personal protec- 5 tive equipment (PPE). 6 (2) The United States requires a robust, secure, 7 and wholly domestic PPE supply chain to safeguard 8 public health and national security. 9 (3) Issuing a strategy that provides the govern- 10 ment’s anticipated needs over the next three years 11 will enable suppliers to assess what changes, if any, 12 are needed in their manufacturing capacity to meet 13 expected demands. 14 (4) In order to foster a domestic PPE supply 15 chain, United States industry needs a strong and 16 consistent demand signal from the Federal Govern- 17 ment providing the necessary certainty to expand 18 production capacity investment in the United States. 19 (5) In order to effectively incentivize investment 20 in the United States and the re-shoring of manufac- 21 turing, long-term contracts must be no shorter than 22 three years in duration. 23 (6) The United States needs a long-term invest- 24 ment strategy for the domestic production of PPE 25 items critical to the United States national response 26 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1306 RS to a public health crisis, including the COVID–19 1 pandemic. 2 SEC. 3. REQUIREMENT OF LONG-TERM CONTRACTS FOR 3 DOMESTICALLY MANUFACTURED PERSONAL 4 PROTECTIVE EQUIPMENT. 5 (a) DEFINITIONS.—In this section: 6 (1) APPROPRIATE CONGRESSIONAL COMMIT- 7 TEES.—The term ‘‘appropriate congressional com- 8 mittees’’ means— 9 (A) the Committee on Health, Education, 10 Labor, and Pensions, the Committee on Fi- 11 nance, the Committee on Homeland Security 12 and Governmental Affairs, the Committee on 13 Veterans’ Affairs, and the Committee on Armed 14 Services of the Senate; and 15 (B) the Committee on Energy and Com- 16 merce, the Committee on Ways and Means, the 17 Committee on Homeland Security, the Com- 18 mittee on Veterans’ Affairs, and the Committee 19 on Armed Services of the House of Representa- 20 tives. 21 (2) COVERED SECRETARY.—The term ‘‘covered 22 Secretary’’ means the Secretary of Homeland Secu- 23 rity, the Secretary of Health and Human Services, 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1306 RS the Secretary of Defense, the Secretary of Edu- 1 cation, and the Secretary of Veterans Affairs. 2 (3) PERSONAL PROTECTIVE EQUIPMENT.—The 3 term ‘‘personal protective equipment’’ means sur- 4 gical masks, respirator masks and powered air puri- 5 fying respirators and required filters, face shields 6 and protective eyewear, gloves, disposable and reus- 7 able surgical and isolation gowns, and head and foot 8 coverings, or other gear or clothing used to protect 9 an individual from the transmission of disease. 10 (4) UNITED STATES.—The term ‘‘United 11 States’’ means the 50 States, the District of Colum- 12 bia, and the possessions of the United States. 13 (b) CONTRACT REQUIREMENTS.—Beginning 90 days 14 after the date of the enactment of this Act, in order to 15 ensure the sustainment and expansion of personal protec- 16 tive equipment manufacturing in the United States and 17 meet the needs of the current pandemic response, any con- 18 tract for the procurement of personal protective equipment 19 entered into by a covered Secretary, or a covered Sec- 20 retary’s designee, shall— 21 (1) be issued for a duration of at least 3 years, 22 including a base period and all option periods, to 23 incentivize investment in the production of personal 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1306 RS protective equipment and the materials and compo- 1 nents thereof in the United States; and 2 (2) be for personal protective equipment that— 3 (A) is grown, reprocessed, reused, or pro- 4 duced in the United States; and 5 (B) when assembled outside the United 6 States, contains only materials and components 7 that are grown, reprocessed, reused, or pro- 8 duced in the United States. 9 (c) AVAILABILITY EXCEPTION.—Paragraph (2) of 10 subsection (b) shall not apply to an item of personal pro- 11 tective equipment, or component or material thereof— 12 (1) that is, or that includes, a material listed in 13 section 25.104 of the Federal Acquisition Regulation 14 as one for which a non-availability determination has 15 been made; 16 (2) as to which the covered Secretary deter- 17 mines that a sufficient quantity of a satisfactory 18 quality that is grown, reprocessed, reused, or pro- 19 duced in the United States cannot be procured as, 20 and when, needed at United States market prices; or 21 (3) if, after maximizing to the extent feasible 22 sources consistent with subsection (b), the covered 23 Secretary certifies every 120 days that it is nec- 24 essary to procure personal protective equipment 25 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1306 RS under alternate procedures to respond to the imme- 1 diate needs of a public health emergency. 2 (d) REPORT.— 3 (1) IN GENERAL.—Not later than 90 days after 4 the date of the enactment of this Act, the Director 5 of the Office of Management and Budget, in con- 6 sultation with the covered Secretaries, shall submit 7 to the chairs and ranking members of the appro- 8 priate congressional committees a report on the pro- 9 curement of personal protective equipment. 10 (2) ELEMENTS.—The report required under 11 paragraph (1) shall include the following elements: 12 (A) The United States long-term domestic 13 procurement strategy for PPE produced in the 14 United States, including strategies to 15 incentivize investment in and maintain United 16 States supply chains for all PPE sufficient to 17 meet the needs of the United States during a 18 public health emergency. 19 (B) An estimate of long-term demand 20 quantities for all PPE items procured by the 21 United States. 22 (C) Recommendations for congressional ac- 23 tion required to implement the United States 24 Government’s procurement strategy. 25 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1306 RS (D) A determination whether all notifica- 1 tions, amendments, and other necessary actions 2 have been completed to bring the United States 3 existing international obligations into con- 4 formity with the statutory requirements of this 5 Act. 6 (e) AUTHORIZATION OF TRANSFER OF EQUIP- 7 MENT.—A covered Secretary may transfer to the Strategic 8 National Stockpile established under section 319F–2 of 9 the Public Health Service Act (42 U.S.C. 247d–6b) any 10 excess personal protective equipment acquired under a 11 contract executed pursuant to subsection (b). 12 (f) COMPLIANCE WITH INTERNATIONAL AGREE- 13 MENTS.—This Act shall be applied in a manner consistent 14 with United States obligations under international agree- 15 ments. 16 SECTION 1. SHORT TITLE. 17 This Act may be cited as the ‘‘Make PPE in America 18 Act’’. 19 SEC. 2. FINDINGS. 20 Congress makes the following findings: 21 (1) The COVID–19 pandemic has exposed the 22 vulnerability of the United States supply chains for, 23 and lack of domestic production of, personal protec- 24 tive equipment (PPE). 25 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1306 RS (2) The United States requires a robust, secure, 1 and wholly domestic PPE supply chain to safeguard 2 public health and national security. 3 (3) Issuing a strategy that provides the govern- 4 ment’s anticipated needs over the next three years will 5 enable suppliers to assess what changes, if any, are 6 needed in their manufacturing capacity to meet ex- 7 pected demands. 8 (4) In order to foster a domestic PPE supply 9 chain, United States industry needs a strong and 10 consistent demand signal from the Federal Govern- 11 ment providing the necessary certainty to expand 12 production capacity investment in the United States. 13 (5) In order to effectively incentivize investment 14 in the United States and the re-shoring of manufac- 15 turing, long-term contracts must be no shorter than 16 three years in duration. 17 (6) To accomplish this aim, the United States 18 should seek to ensure compliance with its inter- 19 national obligations, such as its commitments under 20 the World Trade Organization’s Agreement on Gov- 21 ernment Procurement and its free trade agreements, 22 including by invoking any relevant exceptions to 23 those agreements, especially those related to national 24 security and public health. 25 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1306 RS (7) The United States needs a long-term invest- 1 ment strategy for the domestic production of PPE 2 items critical to the United States national response 3 to a public health crisis, including the COVID–19 4 pandemic. 5 SEC. 3. REQUIREMENT OF LONG-TERM CONTRACTS FOR DO- 6 MESTICALLY MANUFACTURED PERSONAL 7 PROTECTIVE EQUIPMENT. 8 (a) DEFINITIONS.—In this section: 9 (1) APPROPRIATE CONGRESSIONAL COMMIT- 10 TEES.—The term ‘‘appropriate congressional commit- 11 tees’’ means— 12 (A) the Committee on Homeland Security 13 and Governmental Affairs, the Committee on 14 Health, Education, Labor, and Pensions, the 15 Committee on Finance, the Committee on Vet- 16 erans’ Affairs, and the Committee on Armed 17 Services of the Senate; and 18 (B) the Committee on Homeland Security, 19 the Committee on Oversight, the Committee on 20 Energy and Commerce, the Committee on Ways 21 and Means, the Committee on Veterans’ Affairs, 22 and the Committee on Armed Services of the 23 House of Representatives. 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1306 RS (2) COVERED SECRETARY.—The term ‘‘covered 1 Secretary’’ means the Secretary of Homeland Secu- 2 rity, the Secretary of Health and Human Services, 3 the Secretary of Defense, and the Secretary of Vet- 4 erans Affairs. 5 (3) PERSONAL PROTECTIVE EQUIPMENT.—The 6 term ‘‘personal protective equipment’’ means surgical 7 masks, respirator masks and powered air purifying 8 respirators and required filters, face shields and pro- 9 tective eyewear, gloves, disposable and reusable sur- 10 gical and isolation gowns, head and foot coverings, 11 and other gear or clothing used to protect an indi- 12 vidual from the transmission of disease. 13 (4) UNITED STATES.—The term ‘‘United States’’ 14 means the 50 States, the District of Columbia, and 15 the possessions of the United States. 16 (b) CONTRACT REQUIREMENTS FOR DOMESTIC PRO- 17 DUCTION.—Beginning 90 days after the date of the enact- 18 ment of this Act, in order to ensure the sustainment and 19 expansion of personal protective equipment manufacturing 20 in the United States and meet the needs of the current pan- 21 demic response, any contract for the procurement of per- 22 sonal protective equipment entered into by a covered Sec- 23 retary, or a covered Secretary’s designee, shall— 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1306 RS (1) be issued for a duration of at least 2 years, 1 plus all option periods necessary, to incentivize in- 2 vestment in the production of personal protective 3 equipment and the materials and components thereof 4 in the United States; and 5 (2) be for personal protective equipment, includ- 6 ing the materials and components thereof, that is 7 grown, reprocessed, reused, or produced in the United 8 States. 9 (c) ALTERNATIVES TO DOMESTIC PRODUCTION.—The 10 requirement under subsection (b) shall not apply to an item 11 of personal protective equipment, or component or material 12 thereof if, after maximizing to the extent feasible sources 13 consistent with subsection (b), the covered Secretary— 14 (1) maximizes sources for personal protective 15 equipment that is assembled outside the United States 16 containing only materials and components that are 17 grown, reprocessed, reused, or produced in the United 18 States; and 19 (2) certifies every 120 days that it is necessary 20 to procure personal protective equipment under alter- 21 native procedures to respond to the immediate needs 22 of a public health emergency. 23 (d) AVAILABILITY EXCEPTION.— 24 VerDate Sep 11 2014 05:50 Dec 20, 2022 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\S1306.RS S1306 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1306 RS (1) IN GENERAL.—Subsections (b) and (c) shall 1 not apply to an item of personal protective equip- 2 ment, or component or material thereof— 3 (A) that is, or that includes, a material list- 4 ed in section 25.104 of the Federal Acquisition 5 Regulation as one for which a non-availability 6 determination has been made; or 7 (B) as to which the covered Secretary deter- 8 mines that a sufficient quantity of a satisfactory 9 quality that is grown, reprocessed, reused, or 10 produced in the United States cannot be pro- 11 cured as, and when, needed at United States 12 market prices. 13 (2) CERTIFICATION REQUIREMENT [Text truncated for display. Full text available on Congress.gov.]