COVID–19 Emergency Medical Supplies Enhancement Act of 2021

IIB 117TH CONGRESS 1ST SESSION H. R. 3125 IN THE SENATE OF THE UNITED STATES MAY 19, 2021 Received; read twice and referred to the Committee on Banking, Housing, and Urban Affairs AN ACT To enhance authorities under the Defense Production Act of 1950 to respond to the COVID–19 emergency, to provide additional oversight of such authorities, 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 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 2 HR 3125 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘COVID–19 Emergency 2 Medical Supplies Enhancement Act of 2021’’. 3 SEC. 2. DETERMINATION ON EMERGENCY SUPPLIES AND 4 OTHER PUBLIC HEALTH EMERGENCIES. 5 (a) COVID–19 PANDEMIC RESPONSE.—For the pur- 6 poses of section 101 of the Defense Production Act of 7 1950 (50 U.S.C. 4511), the following materials may be 8 deemed by the President, during the COVID–19 emer- 9 gency period, to be scarce and critical materials essential 10 to the national defense and otherwise meet the require- 11 ments of section 101(b) of such Act, and funds available 12 to implement such Act may be used for the purchase, pro- 13 duction (including the construction, repair, and retro- 14 fitting of government-owned facilities as necessary), or 15 distribution of such materials: 16 (1) In vitro diagnostic products (as defined in 17 section 809.3(a) of title 21, Code of Federal Regula- 18 tions) for the detection of SARS–CoV–2 or the diag- 19 nosis of the virus that causes COVID–19, and the 20 reagents and other materials necessary for pro- 21 ducing, conducting, or administering such products, 22 and the machinery, equipment, laboratory capacity, 23 or other technology necessary to produce such prod- 24 ucts. 25 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 3 HR 3125 RFS (2) Face masks and personal protective equip- 1 ment, including non-surgical isolation gowns, face 2 shields, nitrile gloves, N–95 filtering facepiece res- 3 pirators, and any other masks or equipment (includ- 4 ing durable medical equipment) determined by the 5 Secretary of Health and Human Services to be need- 6 ed to respond to the COVID–19 pandemic, and the 7 materials, machinery, additional manufacturing lines 8 or facilities, or other technology necessary to 9 produce such equipment. 10 (3) Drugs and devices (as those terms are de- 11 fined in the Federal Food, Drug, and Cosmetic Act 12 (21 U.S.C. 301 et seq.)) and biological products (as 13 that term is defined by section 351 of the Public 14 Health Service Act (42 U.S.C. 262)) that are ap- 15 proved, cleared, licensed, or authorized under either 16 of such Acts for use in treating or preventing 17 COVID–19 and symptoms related to COVID–19, 18 and any materials, manufacturing machinery, addi- 19 tional manufacturing or fill-finish lines or facilities, 20 technology, or equipment (including durable medical 21 equipment) necessary to produce or use such drugs, 22 biological products, or devices (including syringes, 23 vials, or other supplies or equipment related to deliv- 24 ery, distribution, or administration). 25 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 4 HR 3125 RFS (4) Any other medical equipment or supplies 1 determined by the Secretary of Health and Human 2 Services or the Secretary of Homeland Security to 3 be scarce and critical materials essential to the na- 4 tional defense for purposes of section 101 of the De- 5 fense Production Act of 1950 (50 U.S.C. 4511). 6 (b) FUTURE PREPAREDNESS FOR HEALTH EMER- 7 GENCIES.—Section 702(14) of the Defense Production 8 Act of 1950 is amended by striking ‘‘and critical infra- 9 structure protection and restoration’’ and inserting ‘‘, crit- 10 ical infrastructure protection and restoration, and public 11 health emergency preparedness and response activities’’. 12 SEC. 3. EXERCISE OF TITLE I AUTHORITIES IN RELATION 13 TO CONTRACTS BY STATE, LOCAL, OR TRIBAL 14 GOVERNMENTS. 15 (a) IN GENERAL.—In exercising authorities under 16 title I of the Defense Production Act of 1950 (50 U.S.C. 17 4511 et seq.) during the COVID–19 emergency period, the 18 President (and any officer or employee of the United 19 States to which authorities under such title I have been 20 delegated)— 21 (1) may exercise the prioritization or allocation 22 authority provided in such title I to exclude any ma- 23 terials described in section 2 ordered by a State, 24 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 5 HR 3125 RFS local, or Tribal government that are scheduled to be 1 delivered within 15 days of the time at which— 2 (A) the purchase order or contract by the 3 Federal Government for such materials is 4 made; or 5 (B) the materials are otherwise allocated 6 by the Federal Government under the authori- 7 ties contained in such Act; and 8 (2) shall, within 24 hours of any exercise of the 9 prioritization or allocation authority provided in such 10 title I— 11 (A) to the extent practicable notify any 12 State, local, or Tribal government if the Presi- 13 dent determines that the exercise of such au- 14 thorities would delay the receipt of such mate- 15 rials ordered by such government; and 16 (B) take such steps as may be necessary, 17 and as authorized by law, to ensure that such 18 materials ordered by such government are deliv- 19 ered in the shortest possible period, consistent 20 with the purposes of the Defense Production 21 Act of 1950. 22 (b) UPDATE TO FEDERAL REGULATIONS.— 23 (1) DPAS.—Not later than 30 days after the 24 date of enactment of this Act, the Defense Property 25 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 6 HR 3125 RFS Accountability System regulations (15 C.F.R. part 1 700) shall be revised to reflect the requirements of 2 subsection (a). 3 (2) FAR.—Not later than 30 days after the re- 4 visions required by paragraph (1) are made, the 5 Federal Acquisition Regulation shall be revised to 6 reflect the requirements of subsection (a), consistent 7 with the revisions made pursuant to paragraph (1). 8 SEC. 4. ENGAGEMENT WITH THE PRIVATE SECTOR. 9 (a) OUTREACH REPRESENTATIVE.—Consistent with 10 the authorities in title VII of the Defense Production Act 11 of 1950 (50 U.S.C. 4551 et seq.), the Administrator of 12 the Federal Emergency Management Agency, in consulta- 13 tion with the Secretary of Health and Human Services, 14 may designate or appoint, pursuant to section 703 of such 15 Act (50 U.S.C. 4553), an individual to be known as the 16 ‘‘Outreach Representative’’ for the COVID–19 emergency 17 period. Such individual shall— 18 (1) be appointed from among individuals with 19 substantial experience in the production or distribu- 20 tion of medical supplies or equipment; and 21 (2) act as the Government-wide single point of 22 contact during the COVID–19 emergency for out- 23 reach to manufacturing companies and their sup- 24 pliers who may be interested in producing medical 25 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 7 HR 3125 RFS supplies or equipment, including the materials de- 1 scribed under section 2. 2 (b) ENCOURAGING PARTNERSHIPS.—During the 3 COVID–19 emergency period, the Outreach Representa- 4 tive shall seek to develop partnerships between companies, 5 in coordination with any overall coordinator appointed by 6 the President to oversee the response to the COVID–19 7 emergency, including through the exercise of the authori- 8 ties delegated by the President under section 708 of the 9 Defense Production Act of 1950 (50 U.S.C. 4558). 10 SEC. 5. ENHANCEMENT OF SUPPLY CHAIN PRODUCTION. 11 In exercising authority under title III of the Defense 12 Production Act of 1950 (50 U.S.C. 4531 et seq.) with re- 13 spect to materials described in section 2, the President 14 shall seek to ensure that support is provided to companies 15 that comprise the supply chains for reagents, components, 16 raw materials, and other materials and items necessary 17 to produce or use the materials described in section 2 to 18 the extent necessary for the national defense during the 19 COVID–19 emergency period. 20 SEC. 6. ENHANCED REPORTING DURING COVID–19 EMER- 21 GENCY. 22 (a) REPORT ON EXERCISING AUTHORITIES UNDER 23 THE DEFENSE PRODUCTION ACT OF 1950.— 24 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 8 HR 3125 RFS (1) IN GENERAL.—Not later than 90 days after 1 the date of the enactment of this Act, the President, 2 in consultation with the Administrator of the Fed- 3 eral Emergency Management Agency, the Secretary 4 of Defense, and the Secretary of Health and Human 5 Services, shall submit to the appropriate congres- 6 sional committees a report on the exercise of au- 7 thorities under titles I, III, and VII of the Defense 8 Production Act of 1950 (50 U.S.C. 4501 et seq.) 9 prior to the date of such report for the purposes of 10 the COVID–19 response. 11 (2) CONTENTS.—The report required under 12 subsection (a) and the update required under para- 13 graph (3) shall include the following: 14 (A) IN GENERAL.—With respect to each 15 exercise of such authority— 16 (i) an explanation of the purpose of 17 the applicable contract, purchase order, or 18 other exercise of authority (including an 19 allocation of materials, services, and facili- 20 ties under section 101(a)(2) of the Defense 21 Production Act of 1950 (50 U.S.C. 22 4511(a)(2)); 23 (ii) the cost of such exercise of au- 24 thority; and 25 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 9 HR 3125 RFS (iii) if applicable— 1 (I) the amount of goods that 2 were purchased or allocated; 3 (II) an identification of the entity 4 awarded a contract or purchase order 5 or that was the subject of the exercise 6 of authority; and 7 (III) an identification of any en- 8 tity that had shipments delayed by the 9 exercise of any authority under the 10 Defense Production Act of 1950 (50 11 U.S.C. 4501 et seq.). 12 (B) CONSULTATIONS.—A description of 13 any consultations conducted with relevant 14 stakeholders on the needs addressed by the ex- 15 ercise of the authorities described in paragraph 16 (1). 17 (3) UPDATE.—The President shall provide an 18 additional briefing to the appropriate congressional 19 committees on the matters described under para- 20 graph (2) no later than four months after the sub- 21 mission of the report. 22 (b) EXERCISE OF LOAN AUTHORITIES.— 23 (1) IN GENERAL.—Any loan made pursuant to 24 section 302 or 303 of the Defense Production Act of 25 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 10 HR 3125 RFS 1950, carried out by the United States International 1 Development Finance Corporation pursuant to the 2 authorities delegated by Executive Order No. 13922, 3 shall be subject to the notification requirements con- 4 tained in section 1446 of the BUILD Act of 2018 5 (22 U.S.C. 9656). 6 (2) APPROPRIATE CONGRESSIONAL COMMIT- 7 TEES.—For purposes of the notifications required by 8 paragraph (1) the term ‘‘appropriate congressional 9 committees’’, as used section 1446 of the BUILD 10 Act of 2018, shall be deemed to include the Com- 11 mittee on Financial Services of the House of Rep- 12 resentatives and the Committee on Banking, Hous- 13 ing and Urban Development of the Senate. 14 (c) SUNSET.—The requirements of this section shall 15 terminate on the later of— 16 (1) December 31, 2021; or 17 (2) the end of the COVID–19 emergency pe- 18 riod. 19 SEC. 7. REPORT ON ACTIVITIES INVOLVING SMALL BUSI- 20 NESS. 21 The report required by section 304(f)(3) of the De- 22 fense Production Act of 1950 (50 U.S.C. 4534(f)(3)) for 23 fiscal years 2022 and 2023 shall include the percentage 24 of contracts awarded using funds to carry out the Defense 25 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 11 HR 3125 RFS Production Act of 1950 for each of the fiscal years 2022 1 and 2023, respectively, to small business concerns (as de- 2 fined under section 702 of such Act). 3 SEC. 8. DEFINITIONS. 4 In this Act: 5 (1) APPROPRIATE CONGRESSIONAL COMMIT- 6 TEES.—The term ‘‘appropriate congressional com- 7 mittees’’ means the Committees on Appropriations, 8 Armed Services, Energy and Commerce, Financial 9 Services, and Homeland Security of the House of 10 Representatives and the Committees on Appropria- 11 tions, Armed Services, Banking, Housing, and 12 Urban Affairs, Health, Education, Labor, and Pen- 13 sions, Homeland Security and Governmental Affairs, 14 and Veterans’ Affairs of the Senate. 15 (2) COVID–19 EMERGENCY PERIOD.—The 16 term ‘‘COVID–19 emergency period’’ means the pe- 17 riod beginning on the date of enactment of this Act 18 and ending on the earlier of— 19 (A) the end of the incident period for the 20 emergency declared on March 13, 2020, by the 21 President under section 501 of the Robert T. 22 Stafford Disaster Relief and Emergency Assist- 23 ance Act (42 U.S.C. 4121 et seq.) relating to 24 VerDate Sep 11 2014 03:15 May 20, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3125.RFS H3125 kjohnson on DSK79L0C42PROD with BILLS 12 HR 3125 RFS the Coronavirus Disease 2019 (COVID–19) 1 pandemic; or 2 (B) September 30, 2025. 3 (3) RELEVANT STAKEHOLDER.—The term ‘‘rel- 4 evant stakeholder’’ means— 5 (A) representative private sector entities; 6 (B) representatives of the nonprofit sector; 7 (C) representatives of primary and sec- 8 ondary school systems; and 9 (D) representatives of organizations rep- 10 resenting workers, including health workers, 11 manufacturers, teachers, other public sector 12 employees, and service sector workers. 13 (4) STATE.—The term ‘‘State’’ means each of 14 the several States, the District of Columbia, the 15 Commonwealth of Puerto Rico, and any territory or 16 possession of the United States. 17 Passed the House of Representatives May 18, 2021. Attest: CHERYL [Text truncated for display. Full text available on Congress.gov.]