Public Health Emergency Production Act of 2020

II 116TH CONGRESS 2D SESSION S. 4050 To require the Secretary of Health and Human Services to use authorities under the Defense Production Act of 1950 to prioritize contracts nec- essary to promote pandemic preparedness and response, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 23, 2020 Ms. DUCKWORTH (for herself, Mr. VAN HOLLEN, and Mr. KING) introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs A BILL To require the Secretary of Health and Human Services to use authorities under the Defense Production Act of 1950 to prioritize contracts necessary to promote pan- demic preparedness and response, and for other pur- poses. 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 ‘‘Public Health Emer- 4 gency Production Act of 2020’’. 5 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4050 IS SEC. 2. PRIORITIZATION OF CONTRACTS NECESSARY TO 1 PROMOTE PANDEMIC PREPAREDNESS AND 2 RESPONSE. 3 (a) IN GENERAL.—Title I of the Defense Production 4 Act of 1950 (50 U.S.C. 4511 et seq.) is amended by in- 5 serting after section 101 the following: 6 ‘‘SEC. 101A. PRIORITIZATION OF CONTRACTS NECESSARY 7 TO PROMOTE PANDEMIC PREPAREDNESS 8 AND RESPONSE. 9 ‘‘(a) IN GENERAL.—The Secretary of Health and 10 Human Services shall— 11 ‘‘(1) require that performance under contracts 12 or orders (other than contracts of employment) that 13 the Secretary deems necessary or appropriate to pro- 14 mote preparedness for and response to a pandemic 15 shall take priority over performance under any other 16 contract or order; 17 ‘‘(2) for the purpose of assuring such priority, 18 require acceptance and performance of such con- 19 tracts or orders in preference to other contracts or 20 orders by persons the Secretary finds to be capable 21 of their performance; and 22 ‘‘(3) allocate materials, services, and facilities in 23 such manner, upon such conditions, and to such ex- 24 tent as the Secretary shall deem necessary or appro- 25 priate to promote the public health. 26 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4050 IS ‘‘(b) USE OF AUTHORITY.—The powers granted by 1 this section shall be used to control the general distribu- 2 tion of a material in the civilian market if the Secretary 3 finds that— 4 ‘‘(1) such material is a scarce and critical mate- 5 rial essential to public health; and 6 ‘‘(2) the requirements of public health for such 7 material cannot otherwise be met without creating a 8 significant dislocation of the normal distribution of 9 such material in the civilian market to such a degree 10 as to create appreciable hardship.’’. 11 (b) CONFORMING AMENDMENTS.—The Defense Pro- 12 duction Act of 1950 (50 U.S.C. 4501 et seq.) is amend- 13 ed— 14 (1) in section 102 (50 U.S.C. 4512), in the last 15 sentence, by inserting ‘‘, 101A,’’ after ‘‘sections 16 101’’; and 17 (2) in section 701(e) (50 U.S.C. 4551(e)), by 18 inserting ‘‘or the Secretary of Health and Human 19 Services makes a determination to exercise any au- 20 thority to allocate any material pursuant to section 21 101A,’’ after ‘‘section 101,’’. 22 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4050 IS SEC. 3. REPORTING OF ACTIONS TAKEN UNDER TITLE I OF 1 DEFENSE PRODUCTION ACT OF 1950 IN FED- 2 ERAL PROCUREMENT DATA SYSTEM. 3 Title I of the Defense Production Act of 1950 (50 4 U.S.C. 4511 et seq.) is amended by adding at the end 5 the following: 6 ‘‘SEC. 109. REPORTING OF ACTIONS IN FEDERAL PROCURE- 7 MENT DATA SYSTEM. 8 ‘‘Any action taken under section 101 or 101A shall 9 be reported in the Federal Procurement Data System.’’. 10 SEC. 4. USE OF DEFENSE PRODUCTION ACT FUND FOR 11 PANDEMIC PREPAREDNESS AND RESPONSE. 12 Section 304 of the Defense Production Act of 1950 13 (50 U.S.C. 4534) is amended— 14 (1) by striking subsection (c) and inserting the 15 following: 16 ‘‘(c) USE OF FUND.— 17 ‘‘(1) IN GENERAL.—The Fund shall be avail- 18 able to carry out the provisions and purposes of this 19 title, subject to the limitations set forth in this Act 20 and in appropriations Acts. 21 ‘‘(2) DISTRIBUTION.—The Fund manager des- 22 ignated under subsection (e) shall ensure that 23 amounts in the Fund are fairly distributed to the of- 24 fice established under section 305 and all other Fed- 25 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4050 IS eral agencies with responsibility for carrying out the 1 provisions and purposes of this title.’’; 2 (2) by striking subsection (e); 3 (3) by redesignating subsections (f) and (g) as 4 subsections (e) and (f), respectively; 5 (4) in subsection (e), as redesignated by para- 6 graph (3)— 7 (A) in paragraph (2), by striking ‘‘; and’’ 8 and inserting a semicolon; 9 (B) in paragraph (3), by striking the pe- 10 riod at the end and inserting ‘‘; and’’; and 11 (C) by adding at the end the following: 12 ‘‘(4) coordinating with other Federal agencies 13 to ensure that amounts in the Fund are made avail- 14 able to agencies other than the agency of the Fund 15 manager, especially for public health programs.’’; 16 and 17 (5) by adding at the end the following: 18 ‘‘(g) INTERAGENCY ROTATION PROGRAM.— 19 ‘‘(1) IN GENERAL.—The Secretary of Health 20 and Human Services and the Secretary of Defense 21 shall establish an interagency rotation program that 22 provides for personnel of the components of the De- 23 partment of Health and Human Services specified in 24 paragraph (2) to take rotational assignments within 25 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4050 IS the Office of the Deputy Assistant Secretary of De- 1 fense for Industrial Policy, and for personnel of that 2 Office to take rotational assignments within such 3 components, for the purposes of— 4 ‘‘(A) strengthening working relationships 5 between agencies; 6 ‘‘(B) promoting interagency experience; 7 and 8 ‘‘(C) ensuring the amounts in the Fund 9 enable the use of highly tailored economic in- 10 centives to boost the manufacturing of critical 11 public health resources that are vital to effective 12 pandemic preparedness and response in the 13 United States. 14 ‘‘(2) COMPONENTS SPECIFIED.—The compo- 15 nents of the Department of Health and Human 16 Services specified in this paragraph are the fol- 17 lowing: 18 ‘‘(A) The Office of the Assistant Secretary 19 for Preparedness and Response. 20 ‘‘(B) The Centers for Disease Control and 21 Prevention. 22 ‘‘(C) The National Institutes of Health.’’. 23 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 7 •S 4050 IS SEC. 5. ESTABLISHMENT OF OFFICE IN DEPARTMENT OF 1 HEALTH AND HUMAN SERVICES TO ADMIN- 2 ISTER TITLE III OF DEFENSE PRODUCTION 3 ACT OF 1950. 4 (a) IN GENERAL.—Title III of the Defense Produc- 5 tion Act of 1950 (50 U.S.C. 4531 et seq.) is amended by 6 adding at the end the following: 7 ‘‘SEC. 305. ESTABLISHMENT OF OFFICE IN DEPARTMENT OF 8 HEALTH AND HUMAN SERVICES. 9 ‘‘(a) IN GENERAL.—There is established in the Office 10 of the Assistant Secretary for Preparedness and Response 11 of the Department of Health and Human Services an of- 12 fice (in this section referred to as the ‘office’) to be respon- 13 sible for planning for the use of, reporting on, and imple- 14 mentation of authorities of the Department under this 15 title and other provisions of this Act. 16 ‘‘(b) PANDEMIC PREPAREDNESS AND RESPONSE.— 17 In planning for the use of and implementing authorities 18 under subsection (a), the office shall use highly targeted 19 economic incentives authorized under this Act to boost the 20 manufacturing of critical public health resources that are 21 vital to effective pandemic preparedness and response. 22 ‘‘(c) HEAD OF OFFICE.— 23 ‘‘(1) APPOINTMENT.—The Secretary of Health 24 and Human Services shall appoint an official of the 25 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 8 •S 4050 IS Department, at the level of Deputy Assistant Sec- 1 retary or the equivalent, to be the head of the office. 2 ‘‘(2) DEFENSE PRODUCTION ACT COMMITTEE 3 REPRESENTATIVE.—The head of the office ap- 4 pointed under paragraph (1) shall serve as the rep- 5 resentative of the Department of Health and Human 6 Services on the Defense Production Act Committee 7 under section 722. 8 ‘‘(d) WAIVER OF CERTAIN REQUIREMENTS.—The re- 9 quirements of sections 301(d)(1)(A), 302(d)(1), and sub- 10 paragraphs (B) and (C) of section 303(a)(6) are waived 11 for purposes of the use of authorities under this Act by 12 the office. 13 ‘‘(e) REPORT REQUIRED.—Not less frequently than 14 annually, the head of the office shall submit to Congress, 15 and make available on a publicly accessible internet 16 website of the office, a report that includes— 17 ‘‘(1) a summary of the work and plans of the 18 office to expand productive capacity and supply re- 19 sponsibilities under this Act during the year pre- 20 ceding submission of the report; 21 ‘‘(2) an assessment of the elements of the in- 22 dustrial base and technology base in the United 23 States; 24 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 9 •S 4050 IS ‘‘(3) recommendations for appropriate remedial 1 actions under this Act or regulations prescribed to 2 carry out this Act to supply the emerging tech- 3 nologies needed to achieve robust pandemic pre- 4 paredness and response; 5 ‘‘(4) recommendations for legislation, regula- 6 tions, executive orders, or other action by the Fed- 7 eral Government necessary to improve the use of the 8 authorities provided by this Act; 9 ‘‘(5) a summary of the findings and rec- 10 ommendations for improving information sharing be- 11 tween departments, agencies, and independent estab- 12 lishments of the Federal Government relating to all 13 aspects of this Act; and 14 ‘‘(6) any additional findings or recommenda- 15 tions the office considers appropriate. 16 ‘‘(f) AUTHORIZATION OF APPROPRIATIONS.—There 17 are authorized to be appropriated such sums as may be 18 necessary for the establishment of the office.’’. 19 (b) CONFORMING AMENDMENT.—Section 20 722(b)(1)(A) of the Defense Production Act of 1950 (50 21 U.S.C. 4567(b)(1)(A)) is amended by inserting ‘‘except as 22 specified in section 305(c)(2),’’ before ‘‘the head of’’. 23 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 10 •S 4050 IS SEC. 6. REPORT ON USE OF DEFENSE PRODUCTION ACT OF 1 1950 AUTHORITIES TO RESPOND TO COVID–19 2 PANDEMIC. 3 (a) IN GENERAL.—Not less frequently than once a 4 month during the period described in subsection (b), the 5 Defense Production Act Committee established under sec- 6 tion 722 of the Defense Production Act of 1950 (50 7 U.S.C. 4567) shall submit to the appropriate congres- 8 sional committees and make available on a publicly acces- 9 sible internet website a report— 10 (1) describing activities carried out under titles 11 I and III of that Act related to efforts to respond 12 to the coronavirus disease 2019 (commonly referred 13 to as ‘‘COVID–19’’) pandemic; and 14 (2) assessing the effectiveness of interagency 15 coordination and the use of resources to respond to 16 the pandemic. 17 (b) PERIOD DESCRIBED.—The period described in 18 this subsection is the period— 19 (1) beginning on the date of the enactment of 20 this Act; and 21 (2) ending on the date on which the national 22 emergency declared under the National Emergencies 23 Act (50 U.S.C. 1601 et seq.) with respect to 24 COVID–19 terminates. 25 VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS 11 •S 4050 IS (c) APPROPRIATE CONGRESSIONAL COMMITTEES DE- 1 FINED.—In this section, the term ‘‘appropriate congres- 2 sional committees’’ means the Committee on Banking, 3 Housing, and Urban Affairs of the Senate and the Com- 4 mittee on Financial Services of the House of Representa- 5 tives 6 SEC. 7. REPORT ON USE OF DEFENSE PRODUCTION ACT OF 7 1950 AUTHORITIES IN RELATION TO MEAT 8 PRODUCTION DURING COVID–19 PANDEMIC. 9 Not later than 60 days after the date of the enact- 10 ment of this Act, the Inspector General of the Department 11 of Agriculture shall submit to Congress a report on the 12 use of authorities under the Defense Production Act of 13 1950 (50 U.S.C. 4501 et seq.) by the Secretary of Agri- 14 culture to reopen, and ensure the continued operation of, 15 meat processing facilities during the COVID–19 pan- 16 demic, in a manner that superseded more stringent stand- 17 ards issued by State governments. 18 Æ VerDate Sep 11 2014 07:30 Jul 07, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S4050.IS S4050 kjohnson on DSK79L0C42PROD with BILLS