Pandemic Production Act

I 116TH CONGRESS 2D SESSION H. R. 6793 To authorize the Secretary of Health and Human Services to create, maintain, protect, expand, or restore domestic industrial base capabilities essential for pandemic preparedness, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 8, 2020 Mrs. TRAHAN (for herself, Mr. PAPPAS, and Mr. MALINOWSKI) introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To authorize the Secretary of Health and Human Services to create, maintain, protect, expand, or restore domestic industrial base capabilities essential for pandemic pre- paredness, 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 ‘‘Pandemic Production 4 Act’’. 5 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 6793 IH SEC. 2. EXPANSION OF PRODUCTIVE CAPACITY AND SUP- 1 PLY RELATED TO PANDEMIC PREPARED- 2 NESS. 3 (a) SECRETARIAL AUTHORIZATION FOR PANDEMIC 4 PREPAREDNESS.— 5 (1) IN GENERAL.—To create, maintain, protect, 6 expand, or restore domestic industrial base capabili- 7 ties essential for pandemic preparedness, the Sec- 8 retary shall make provision— 9 (A) for purchases of or commitments to 10 purchase essential medical technology, including 11 vaccines, and related materials, including per- 12 sonal protective equipment; 13 (B) for the encouragement of production of 14 essential medical technology and related mate- 15 rials; 16 (C) for the development and maintenance 17 of production capabilities; and 18 (D) for the increased use of emerging tech- 19 nologies in biological, chemical, and radiological 20 security program applications and the rapid 21 transition of emerging technologies— 22 (i) from Government-sponsored re- 23 search and development to commercial ap- 24 plications; and 25 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 6793 IH (ii) from commercial research and de- 1 velopment to pandemic preparedness appli- 2 cations. 3 (2) SECRETARIAL DETERMINATIONS.—Except 4 as provided in paragraph (4), the Secretary may not 5 execute a contract under this subsection unless the 6 Secretary determines, with appropriate explanatory 7 material and in writing to the Committee on Bank- 8 ing, Housing, and Urban Affairs of the Senate and 9 the Committee on Financial Services of the House of 10 Representatives, that— 11 (A) the essential medical technology or re- 12 lated materials is essential to the pandemic re- 13 sponse strategy of the United States; 14 (B) without Secretarial action under this 15 section, the United States industry cannot rea- 16 sonably be expected to provide consistently the 17 capability for the needed essential medical tech- 18 nology or related materials in a timely manner; 19 and 20 (C) purchases, purchase commitments, or 21 other action pursuant to this section are the 22 most cost effective, expedient, and practical al- 23 ternative method for meeting the need. 24 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 6793 IH (3) NOTIFICATION TO CONGRESS OF SHORT- 1 FALL.— 2 (A) IN GENERAL.—Except as provided in 3 paragraph (4), the Secretary shall provide writ- 4 ten notice to the Committee on Banking, Hous- 5 ing, and Urban Affairs of the Senate and the 6 Committee on Financial Services of the House 7 of Representatives of a domestic industrial base 8 shortfall prior to taking action under this sub- 9 section to remedy the shortfall. The notice shall 10 include the determinations made by the Sec- 11 retary under paragraph (2). 12 (B) AGGREGATE AMOUNTS.—If the taking 13 of any action under this subsection to correct a 14 domestic industrial base shortfall would cause 15 the aggregate outstanding amount of all such 16 actions for such shortfall to exceed $5,000,000 17 within a five year period, the action or actions 18 may be taken only after the 30-day period fol- 19 lowing the date on which the Committee on 20 Banking, Housing, and Urban Affairs of the 21 Senate and the Committee on Financial Serv- 22 ices of the House of Representatives have been 23 notified in writing of the proposed action. 24 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 6793 IH (4) WAIVER AUTHORIZED.—The Secretary may 1 waive the requirements of paragraphs (1) through 2 (3) during a period of national emergency declared 3 by an Act of Congress or the President. 4 (b) SECRETARIAL FINDINGS.— 5 (1) IN GENERAL.—The Secretary may take the 6 actions described in paragraph (2), if the Secretary 7 finds— 8 (A) under generally fair and equitable ceil- 9 ing prices, for any raw or nonprocessed mate- 10 rial, there will result a decrease in supplies 11 from high-cost sources of such material, and 12 that the continuation of such supplies is nec- 13 essary to carry out the objectives of this sec- 14 tion; or 15 (B) an increase in cost of transportation is 16 temporary in character and threatens to impair 17 maximum production or supply in any area at 18 stable prices of any materials. 19 (2) SUBSIDY PAYMENTS AUTHORIZED.—Upon a 20 finding under paragraph (1), the Secretary may 21 make provision for subsidy payments on any such 22 domestically produced material in such amounts and 23 in such manner (including purchases of such mate- 24 rial and its resale at a loss), and on such terms and 25 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 6793 IH conditions, as the Secretary determines to be nec- 1 essary to ensure that supplies from such high-cost 2 sources are continued, or that maximum production 3 or supply in such area at stable prices of such mate- 4 rials is maintained, as the case may be. 5 (c) INCIDENTAL AUTHORITY.—The procurement 6 power granted to the Secretary by this section shall in- 7 clude the power to transport and store and have processed 8 and refined any materials procured under this section. 9 (d) INSTALLATION OF EQUIPMENT IN INDUSTRIAL 10 FACILITIES.—If the Secretary determines that such action 11 will aid the pandemic response strategy of the United 12 States, the Secretary is authorized— 13 (1) to procure and install additional equipment, 14 facilities, processes, or improvements to plants, fac- 15 tories, and other industrial facilities owned by the 16 Federal Government; 17 (2) to procure and install equipment owned by 18 the Federal Government in plants, factories, and 19 other industrial facilities owned by private persons; 20 (3) to provide for the modification or expansion 21 of privately owned facilities, including the modifica- 22 tion or improvement of production processes; and 23 (4) to sell or otherwise transfer equipment 24 owned by the Federal Government and installed 25 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 6793 IH under this subsection to the owners of such plants, 1 factories, or other industrial facilities. 2 (e) EXCESS ESSENTIAL MEDICAL TECHNOLOGY, IN- 3 CLUDING VACCINES, AND RELATED MATERIALS, INCLUD- 4 ING PERSONAL PROTECTIVE EQUIPMENT.—Notwith- 5 standing any other provision of law to the contrary, essen- 6 tial medical technology, including vaccines, and related 7 materials, including personal protective equipment ac- 8 quired pursuant to this section which, in the judgment of 9 the Secretary, are excess to the needs of programs under 10 this section, shall be transferred to the Strategic National 11 Stockpile, when the Secretary deems such action to be in 12 the public interest. 13 (f) SUBSTITUTES.—When, in the judgement of the 14 Secretary, it will aid pandemic preparedness, the Sec- 15 retary may make provision for the development of sub- 16 stitutes for strategic and critical materials, critical compo- 17 nents, critical technology items, and other industrial re- 18 sources. 19 (g) PANDEMIC PRODUCTION ACT FUND.— 20 (1) ESTABLISHMENT OF FUND.—There is es- 21 tablished in the Treasury of the United States a sep- 22 arate fund to be known as the ‘‘Pandemic Produc- 23 tion Act Fund’’ (in this subsection referred to as the 24 ‘‘Fund’’). 25 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 6793 IH (2) MONEYS IN FUND.—There shall be credited 1 to the Fund— 2 (A) all moneys appropriated for the Fund, 3 as authorized by subsection (i); and 4 (B) all moneys received by the Fund on 5 transactions entered into pursuant to this sec- 6 tion. 7 (3) USE OF FUND.—The Fund shall be avail- 8 able to carry out the provisions and purposes of this 9 section subject to the limitations set forth in this 10 section and in appropriations Acts. 11 (4) DURATION OF FUND.—Moneys in the Fund 12 shall remain available until expended. 13 (5) FUND MANAGER.—The Secretary shall des- 14 ignate a Fund manager. The duties of the Fund 15 manager shall include— 16 (A) determining the liability of the Fund 17 in accordance with paragraph (6); 18 (B) ensuring the visibility and account- 19 ability of transactions engaged in through the 20 Fund; and 21 (C) reporting to the Congress regarding 22 activities of the Fund— 23 (i) quarterly, with respect to the pre- 24 vious quarter; or 25 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 6793 IH (ii) weekly, during a period of national 1 emergency declared by an Act of Congress 2 or the President, with respect to the pre- 3 vious week. 4 (6) LIABILITIES AGAINST FUND.—When any 5 agreement entered into pursuant to this section im- 6 poses any contingent liability upon the United 7 States, such liability shall be considered an obliga- 8 tion against the Fund. 9 (h) DELEGATION OF AUTHORITY.—The Secretary 10 may only delegate authority under this section to the As- 11 sistant Secretary for Preparedness and Response and such 12 Assistant Secretary may not further delegate such author- 13 ity. 14 (i) AUTHORIZATION OF APPROPRIATIONS.—There is 15 authorized to be appropriated such sums as may be nec- 16 essary for fiscal year 2020 and each fiscal year thereafter 17 for the carrying out of the provisions and purposes of this 18 section. 19 (j) DEFINITIONS.—For purposes of this section, the 20 following definitions shall apply: 21 (1) CRITICAL COMPONENT.—The term ‘‘critical 22 component’’ includes such components, subsystems, 23 systems, and related special tooling and test equip- 24 ment essential to the production, repair, mainte- 25 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 6793 IH nance, or operation of biological, chemical, and radi- 1 ological security program applications or other items 2 of equipment identified by the Secretary as being es- 3 sential to the execution of a pandemic response 4 strategy of the United States. 5 (2) CRITICAL TECHNOLOGY.—The term ‘‘crit- 6 ical technology’’ includes any technology designated 7 by the Secretary to be essential to the execution of 8 a pandemic response strategy of the United States. 9 (3) CRITICAL TECHNOLOGY ITEM.—The term 10 ‘‘critical technology item’’ means materials directly 11 employing, derived from, or utilizing a critical tech- 12 nology. 13 (4) DOMESTIC INDUSTRIAL BASE.—The term 14 ‘‘domestic industrial base’’ means domestic sources 15 which are providing, or which would be reasonably 16 expected to provide, materials or services to meet 17 national pandemic response requirements during 18 peacetime or national emergency. 19 (5) DOMESTIC SOURCE.—The term ‘‘domestic 20 source’’ means a business concern— 21 (A) that performs in the United States 22 substantially all of the research and develop- 23 ment, engineering, manufacturing, and produc- 24 tion activities required of such business concern 25 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 6793 IH under a contract with the United States relat- 1 ing to a critical component or a critical tech- 2 nology item; and 3 (B) that procures from business concerns 4 described in subparagraph (A) substantially all 5 of any components and assemblies required 6 under a contract with the United States relat- 7 ing to a critical component or critical tech- 8 nology item. 9 (6) FACILITIES.—The term ‘‘facilities’’ includes 10 all types of buildings, structures, or other improve- 11 ments to real property (but excluding farms, church- 12 es or other places of worship, and private dwelling 13 houses), and services relating to the use of any such 14 building, structure, or other improvement. 15 (7) INDUSTRIAL RESOURCES.—The term ‘‘in- 16 dustrial resources’’ means materials, services, proc- 17 esses, or manufacturing equipment (including the 18 processes, technologies, and ancillary services for the 19 use of such equipment) needed to establish or main- 20 tain an efficient and modern national pandemic re- 21 sponse industrial base. 22 (8) MATERIALS.—The term ‘‘materials’’ in- 23 cludes— 24 VerDate Sep 11 2014 18:47 May 21, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H6793.IH H6793 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 6793 IH (A) any raw materials (including minerals, 1 metals, and advanced processed materials), 2 commodities, articles, components (including 3 critical components), products, and items of 4 supply; and 5 (B) any technical information or services 6 ancillary to the use of any such materials, com- 7 modities, articles, components, products, or 8 items. 9 (9) PANDEMIC RESPONSE STRATEGY OF THE 10 UNITED STATES.—The Secretary shall defined the 11 term ‘‘pandemic response strategy of the United 12 States’’. 13 (10) PERSON.—The term ‘‘person’’ includes an 14 individual, corporation, partnership, association, or 15 any other organized group of persons, or legal suc- 16 cessor or representative thereof, or any State or 17 local government or agency thereof. 18 (11) SECRETARY.—The term ‘‘Secretary’’ 19 means the Secretary of Health and Human Services. 20 (12) SERVICES.—The term ‘‘ser [Text truncated for display. 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