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PPE Supply Chain Transparency Act of 2020

Summary

This is Senate Report 116-319 of the 116th Congress, 2d Session, Calendar No. 622, titled PPE Supply Chain Transparency Act of 2020, from the Committee on Homeland Security and Governmental Affairs, ordered to be printed December 14, 2020. Mr. Johnson reports on S. 4158, which the Committee reports favorably with amendments and an amendment to the title and recommends that the bill, as amended, do pass. The report states that the purpose of S. 4158 is to require the Administrator of the Federal Emergency Management Agency (FEMA) to produce a report assessing the supply chain for personal protective equipment (PPE) during the COVID–19 pandemic, to be made available within 90 days after enactment. The background section describes PPE shortages and the March 30, 2020 establishment of FEMA's Supply Chain Stabilization Task Force.

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Crpt Crpt 116Srpt319 Crpt 116Srpt319
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“PPE Supply Chain Transparency Act of 2020.” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crpt-crpt-116srpt319-crpt-116srpt319/, SHA-256 6955c2233d4e58ecaa0d674d7f4b9f31fa7765fa87ca73f5d9648133cd06d348.

Full text

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                                                                                                      Calendar No. 622
                                       116TH CONGRESS                                                                      REPORT
                                                      "                            SENATE                         !
                                          2d Session                                                                       116–319




                                                    PPE SUPPLY CHAIN TRANSPARENCY
                                                              ACT OF 2020


                                                                               R E P O R T
                                                                                    OF THE


                                           COMMITTEE ON HOMELAND SECURITY AND
                                                  GOVERNMENTAL AFFAIRS
                                                  UNITED STATES SENATE
                                                                                TO ACCOMPANY


                                                                                  S. 4158
                                             TO EXAMINE THE EXTENT OF THE RELIANCE OF THE UNITED
                                             STATES ON FOREIGN PRODUCERS FOR PERSONAL PROTECTIVE
                                             EQUIPMENT DURING THE COVID-19 PANDEMIC AND PRODUCE
                                                RECOMMENDATIONS TO SECURE THE SUPPLY CHAIN OF
                                                        PERSONAL PROTECTIVE EQUIPMENT




                                                              DECEMBER 14, 2020.—Ordered to be printed


                                                                   U.S. GOVERNMENT PUBLISHING OFFICE
                                           19–010                              WASHINGTON : 2020




                                                                                                                                     congress.#13
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                                           COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                                                            RON JOHNSON, Wisconsin, Chairman
                                      ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
                                      RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
                                      JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
                                      MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
                                      RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
                                      MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada
                                      JOSH HAWLEY, Missouri

                                                                GABRIELLE D’ADAMO SINGER, Staff Director
                                                                    JOSEPH C. FOLIO III, Chief Counsel
                                                              BARRETT F. PERCIVAL, Professional Staff Member
                                                                DAVID M. WEINBERG, Minority Staff Director
                                                                ZACHARY I. SCHRAM, Minority Chief Counsel
                                                   CHRISTOPHER J. MULKINS, Minority Deputy Director of Homeland Security
                                                                     LAURA W. KILBRIDE, Chief Clerk




                                                                                           (II)




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                                                                                                                 Calendar No. 622
                                      116TH CONGRESS                                                                                       REPORT
                                                     "                                      SENATE                                 !
                                         2d Session                                                                                        116–319




                                              PPE SUPPLY CHAIN TRANSPARENCY ACT OF 2020



                                                                   DECEMBER 14, 2020.—Ordered to be printed



                                           Mr. JOHNSON, from the Committee on Homeland Security and
                                                  Governmental Affairs, submitted the following


                                                                                    R E P O R T
                                                                                  [To accompany S. 4158]

                                        The Committee on Homeland Security and Governmental Affairs,
                                      to which was referred the bill (S. 4158) to examine the extent of
                                      the reliance of the United States on foreign producers for personal
                                      protective equipment during the COVID–19 pandemic and produce
                                      recommendations to secure the supply chain of personal protective
                                      equipment, having considered the same, reports favorably thereon
                                      with amendments and an amendment to the title, and recommends
                                      that the bill, as amended, do pass.
                                                                                          CONTENTS
                                                                                                                                                            Page
                                          I. Purpose and Summary ..................................................................................           1
                                         II. Background and the Need for Legislation ...................................................                      2
                                       III. Legislative History .........................................................................................     3
                                        IV. Section-by-Section Analysis ..........................................................................            4
                                         V. Evaluation of Regulatory Impact ..................................................................                4
                                        VI. Congressional Budget Office Cost Estimate ................................................                        4
                                       VII. Changes in Existing Law Made by the Bill, as Reported ...........................                                 4

                                                                            I. PURPOSE AND SUMMARY

                                        The purpose of S. 4158, PPE Supply Chain Transparency Act, is
                                      to require the Administrator of the Federal Emergency Manage-
                                      ment Agency (FEMA) to produce a report that assesses the supply
                                      chain for personal protective equipment (PPE) during the COVID–
                                      19 pandemic. Following enactment of this bill, the report must be
                                      made available within 90 days to the appropriate congressional
                                      committees and the public. The contents of the report must include
                                      the amount and variation of PPE procured by FEMA from foreign
                                      manufacturers, U.S. manufacturers, and manufacturers from the
                                      People’s Republic of China. In addition, the report must also in-




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                                      clude legislative recommendations to improve the domestic supply
                                      chain of PPE.
                                                        II. BACKGROUND AND THE NEED FOR LEGISLATION

                                         Amid one of the most devastating public health emergencies in
                                      our nation’s history, first responders and health care officials
                                      throughout the United States experienced severe shortages of
                                      PPE.1 The scarcity of PPE emerged as COVID–19 spread swiftly
                                      across the globe, leading some foreign governments, including the
                                      United States, to implement restrictions on the export of certain
                                      PPE.2
                                         In China, which prior to the COVID–19 pandemic produced 50
                                      percent of the world’s PPE, export controls were reportedly exer-
                                      cised as efforts were focused on addressing COVID–19 domesti-
                                      cally.3 According to the Peterson Institute for International Eco-
                                      nomics, ‘‘[a]s the coronavirus took hold in China in January and
                                      February 2020, there was a considerable increase in Chinese de-
                                      mand for PPE.’’ 4 Consequently, this led to ‘‘diminishing supplies
                                      available to the rest of the world.’’ 5 However, in cases where PPE
                                      supplies from China were delivered, reports indicated that products
                                      were at times defective, rendering them useless in the response.6
                                         In the United States, our reliance on the import of PPE became
                                      evident as health officials quickly sounded an alarm warning of the
                                      impending deficiency of PPE inventory.7 On March 30, 2020,
                                      FEMA established the Supply Chain Stabilization Task Force,
                                      charged with ‘‘[e]xecuting a whole-of-America approach to address
                                      limited supply of critical protective and life-saving equipment.’’ 8 As
                                      part of this effort, the Trump administration initiated Project
                                      Airbridge, a public-private partnership that transported PPE and
                                      other supplies from China, cutting down the delivery time from ap-
                                      proximately 30 days to 48 hours, however, shortages of PPE per-
                                      sisted.9 This Committee has examined the contributing causes of
                                      the PPE shortage during the 2020 coronavirus pandemic through
                                      hearings, and other oversight.10
                                         To strengthen the United States’ PPE supply chain, S. 4158
                                      would require a thorough assessment, through a FEMA report, of
                                        1 Andrew Jacobs, et al., ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is
                                      Dire, N.Y. Times (March 19, 2020), available at https://www.nytimes.com/2020/03/19/health/
                                      coronavirus-masks-shortage.html.
                                        2 Kay C. Georgi, et al., Reference Guide: Worldwide Export Controls on Face Masks and Other
                                      Medical Personal Protective Equipment, Arent Fox (June 3, 2020), available at https://
                                      www.arentfox.com/perspectives/alerts/reference-guide-worldwide-export-controls-face-masks-and-
                                      other-medical-personal.
                                        3 Chad Brown, China should export more medical gear to battle COVID–19, Peterson Institute
                                      for International Economics (May 5, 2020) available at https://www.piie.com/blogs/trade-and-in-
                                      vestment-policy-watch/china-should-export-more-medical-gear-battle-covid-19.
                                        4 Id.
                                        5 Id.
                                        6 Alice Su, Faulty masks. Flawed tests. China’s quality control problem in leading global
                                      COVID–19 fight, Los Angeles Times (Apr. 10, 2020) available at https://www.latimes.com/world-
                                      nation/story/2020-04-10/china-beijing-supply-world-coronavirus-fight-quality-control.
                                        7 Id. at 1.
                                        8 News Release, Federal Emergency Management Agency, FEMA COVID–19 Supply Chain
                                      Task Force: Supply Chain Stabilization (Apr. 8, 2020), available at https://www.fema.gov/news-
                                      release/2020/04/08/fema-covid-19-supply-chain-task-force-supply-chain-stabilization.
                                        9 Id.
                                        10 See Evaluating the Federal Government’s Procurement and Distribution Strategies in Re-
                                      sponse to the COVID–19 Pandemic: Hearing Before the S. Comm. on Homeland Sec. & Govern-
                                      mental Affairs, 116th Cong. (2020) (question by Sen. Josh Hawley); The Role of the Strategic
                                      National Stockpile in Pandemic Response: Hearing Before the S. Comm. on Homeland Sec. &
                                      Governmental Affairs, 116th Cong. (2020) (question by Sen. Josh Hawley).




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                                                                                           3

                                      its resilience and current state. This legislation seeks to contribute
                                      to multiple efforts to expand domestic capacity capability of domes-
                                      tic manufacturers to produce PPE and reduce our dependence on
                                      Chinese PPE imports. As healthcare workers, first responders, and
                                      other personnel continue to address COVID–19, it is imperative
                                      that they are adequately equipped with quality PPE.
                                                                        III. LEGISLATIVE HISTORY

                                        Senator Josh Hawley (R–MO) introduced S. 4158 on July 2, 2020.
                                      The bill was referred to the Committee on Homeland Security and
                                      Governmental Affairs. Senators Margaret Wood Hassan and Rick
                                      Scott later joined as cosponsors.
                                        The Committee considered S. 4158 at a business meeting on July
                                      22, 2020. During the business meeting, Senator Hawley offered an
                                      amendment that modifies the definition of personal protective
                                      equipment to align with the definition in the CARES Act.11 The
                                      amendment was adopted by voice vote with Senators Johnson,
                                      Portman, Paul, Lankford, Romney, Scott, Enzi, Hawley, Peters,
                                      Carper, Hassan, Harris, and Rosen present.
                                        Ranking Member Gary Peters offered an amendment that would
                                      expand the bill’s reporting requirements to include a requirement
                                      that the Administrator of FEMA collect all requests from states
                                      and Indian Tribes for PPE and medical supplies and make rec-
                                      ommendations to the President on utilizing the full authorities
                                      available under the Defense Production Act, including incentivizing
                                      domestic production of PPE. Among other things, it would also di-
                                      rect the President to issue rated priority purchase orders to procure
                                      equipment and supplies, including PPE, to address current gaps in
                                      medical supplies at a fair and reasonable price.
                                        Senator Jacky Rosen and Josh Hawley offered a second degree
                                      amendment to the Peters amendment to strike the Peters language
                                      and replace it with a requirement that FEMA ‘‘evaluate and sum-
                                      marize’’ how the Defense Production Act has been used during the
                                      COVID–19 response efforts and summarize recommendations for
                                      future use to increase production of PPE. Senators Rosen and
                                      Hawley modified the amendment to strike the word ‘‘evaluate’’ and
                                      require just the summary of previous efforts and potential future
                                      recommendations. The second degree amendment as modified was
                                      adopted by voice vote, as was the underlying Peters amendment as
                                      amended by it, both with Senators Johnson, Portman, Paul,
                                      Lankford, Romney, Scott, Enzi, Hawley, Peters, Carper, Hassan,
                                      Harris, and Rosen present.
                                        The Committee ordered the bill, as amended by the Hawley
                                      amendment and the Peters amendment as amended by the Rosen-
                                      Hawley second degree amendment as modified, reported favorably,
                                      by voice vote. Senators present were: Johnson, Portman, Paul,
                                      Lankford, Romney, Scott, Enzi, Hawley, Peters, Carper, Hassan,
                                      Harris, and Rosen.



                                           11 Pub. L. No. 116–136, 116th Cong. (2020).




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                                                                                          4

                                             IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

                                      Section 1. Short title
                                        This section provides the bill’s short title as the ‘‘PPE Supply
                                      Chain Transparency Act.’’
                                      Section 2. Report
                                        This section defines PPE and requires the FEMA Administrator
                                      to consult with the Secretary of Health and Human Services to
                                      produce a report detailing the resilience of the PPE supply chain
                                      during the 2020 COVID–19 pandemic. The report shall be provided
                                      to the Committee on Homeland Security and Governmental Affairs
                                      of the Senate and the Committee on Homeland Security of the
                                      House of Representatives, and made publicly available.
                                        In accordance with this section, the report shall include an as-
                                      sessment of the volume and percentage of each type of PPE distrib-
                                      uted by or at the direction of FEMA that was procured from foreign
                                      and domestic manufacturers. Additionally, the report is required to
                                      include an examination of the volume and percentage of PPE (in-
                                      cluding defective PPE) from manufacturers in China. The report
                                      must also include any challenges encountered related to procuring
                                      PPE from foreign manufacturers, the forecasted demand for PPE
                                      on a monthly basis for the next year as well as an analysis of
                                      whether domestic production is sufficient to meet that demand, and
                                      recommendations to secure the supply chain of PPE. Finally, the
                                      report must include a summary of the use of authorities provided
                                      under the Defense Production Act in COVID–19 response efforts
                                      and additional options to use such authorities to increase PPE pro-
                                      duction in the future.
                                        Lastly, the bill includes a direction to amend the title of the bill
                                      to be: ‘‘A bill to examine the extent of the reliance of the United
                                      States on foreign producers for personal protective equipment dur-
                                      ing the COVID–19 pandemic and produce recommendations to se-
                                      cure the supply chain of personal protective equipment and to ex-
                                      pand domestic production of personal protective equipment.
                                                            V. EVALUATION OF REGULATORY IMPACT

                                        Pursuant to the requirements of paragraph 11(b) of rule XXVI of
                                      the Standing Rules of the Senate, the Committee has considered
                                      the regulatory impact of this bill and determined that the bill will
                                      have no regulatory impact within the meaning of the rules. The
                                      Committee agrees with the Congressional Budget Office’s state-
                                      ment that the bill contains no intergovernmental or private-sector
                                      mandates as defined in the Unfunded Mandates Reform Act
                                      (UMRA) and would impose no costs on state, local, or tribal govern-
                                      ments.
                                                    VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                        CBO failed to provide the Committee with a cost estimate in
                                      time for the final reporting deadline of the 116th Congress.
                                           VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

                                        Because this legislation would not repeal or amend any provision
                                      of current law, it would not make changes in existing law within




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                                      the meaning of clauses (a) and (b) of paragraph 12 of rule XXVI
                                      of the Standing Rules of the Senate.

                                                                                          Æ




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