text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``Bioterror and Pandemic Preparedness 
  Protection Act''.
  
  SEC. 2. LIABILITY PROTECTIONS FOR PANDEMICS, EPIDEMICS, AND 
                COUNTERMEASURES.
  
      Part B of title III of the Public Health Service Act is amended by 
  inserting after section 319F-2 (42 U.S.C. 247d-6b) the following:
  
  ``SEC. 319A-3. LIABILITY PROTECTIONS FOR PANDEMICS, EPIDEMICS, AND 
                SECURITY COUNTERMEASURES.
  
      ``(a) Authority.--The Secretary shall be solely and exclusively 
  responsible for the administration of this section. This section shall 
  apply with respect to the design, development, clinical testing and 
  investigation, manufacture, labeling, distribution, sale, purchase, 
  donation, dispensing, administration, or use of a security 
  countermeasure or a qualified pandemic or epidemic product.
      ``(b) Litigation Management.--
              ``(1) Federal cause of action.--
                      ``(A) In general.--There shall exist an exclusive 
                  Federal cause of action for all claims arising out of, 
                  relating to, or resulting from the design, development, 
                  clinical testing and investigation, manufacture, 
                  labeling, distribution, sale, purchase, donation, 
                  dispensing, administration, and use of a qualified 
                  pandemic or epidemic product or a security 
                  countermeasure as provided for in clauses (i) and (ii) 
                  of paragraph (2)(B).
                      ``(B) Action.--With respect to the Federal cause of 
                  action provided in subparagraph (A)--
                              ``(i) an action may be commenced solely and 
                          exclusively against the United States for 
                          claims identified in subparagraph (A) that are 
                          against a manufacturer, distributor, or health 
                          care provider;
                              ``(ii) no cause of action shall be 
                          maintained against a manufacturer, distributor, 
                          or health care provider for claims identified 
                          in subparagraph (A); and
                              ``(iii) for products subject to designation 
                          by the Secretary as provided for in clause (ii) 
                          of paragraph (2)(B), the protections set forth 
                          in clauses (i) and (ii) shall apply to all 
                          claims identified in subparagraph (A) that 
                          involve products sold, purchased, donated, 
                          dispensed, or administered during the effective 
                          period set forth in the designation provided 
                          for in paragraph (2)(F), regardless of the date 
                          of alleged injury.
                      ``(C) Jurisdiction.--The United States District 
                  Court for the District of Columbia shall have sole and 
                  exclusive jurisdiction over any claim for loss of 
                  property, personal injury, or death arising out of, 
                  relating to, or resulting from the design, development, 
                  clinical testing and investigation, manufacture, 
                  labeling, distribution, sale, purchase, donation, 
                  dispensing, administration, or use of a qualified 
                  pandemic or epidemic product or security countermeasure 
                  as provided for in clauses (i) and (ii) of paragraph 
                  (2)(B).
              ``(2) Affirmative defense.--
                      ``(A) In general.--There shall be a rebuttable 
                  presumption that the Federal Government is immune from 
                  liability in an action described in subparagraph (B).
                      ``(B) Action described.--An action described in 
                  this subparagraph is an action that is commenced 
                  against the United States for claims arising out of, 
                  relating to, or resulting from the design, development, 
                  clinical testing and investigation, manufacture, 
                  labeling, distribution, sale, purchase, donation, 
                  dispensing, administration, or use of--
                              ``(i) a security countermeasure that has 
                          been procured for the National Strategic 
                          Stockpile under section 319F-2 or a qualified 
                          pandemic or epidemic product that has been 
                          procured by the Secretary; or
                              ``(ii) a security countermeasure or 
                          qualified pandemic or epidemic product in 
                          anticipation of and preparation for, in defense 
                          against, or in response or recovery to an 
                          actual or potential public health emergency, 
                          that is a security countermeasure or is 
                          designated as a qualified pandemic or epidemic 
                          product by the Secretary after the Secretary 
                          declared a public health emergency as described 
                          in paragraph (1) or (2) of section 319(a).
                      ``(C) Rebuttability.--
                              ``(i) In general.--The presumption 
                          described in subparagraph (A) shall be overcome 
                          by a determination by the Secretary as provided 
                          for in subparagraph (D).
                              ``(ii) Investigation by secretary.--A party 
                          seeking a determination under subparagraph (D) 
                          may petition the Secretary to investigate 
                          claims against a manufacturer, distributor, 
                          dispenser, or health care provider arising out 
                          of, relating to, or resulting from the design, 
                          development, clinical testing and 
                          investigation, manufacture, labeling, 
                          distribution, sale, purchase, donation, 
                          dispensing, administration, or use of products 
                          as provided for in clauses (i) and (ii) of 
                          subparagraph (B). The decision to undertake 
                          such investigation shall be within the 
                          Secretary's discretion and shall not be subject 
                          to judicial review.
                      ``(D) Determination by secretary.--
                              ``(i) In general.--In making a 
                          determination under this subparagraph, the 
                          Secretary must find clear and convincing 
                          evidence that the manufacturer, distributor, or 
                          health care provider intentionally or with 
                          willful disregard violated a provision of the 
                          Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
                          301 et seq.) or this Act and such violation--
                                      ``(I) caused the product to present 
                                  a significant risk to health; and
                                      ``(II) proximately caused the 
                                  injury alleged by the petitioner.
                              ``(ii) Notice and hearing.--Prior to the 
                          Secretary's making a determination under clause 
                          (i), the manufacturer, distributor, dispenser, 
                          or health care provider shall have notice and a 
                          right to a formal hearing in accordance with 
                          section 556 of title 5, United States Code.
                              ``(iii) Judicial review.--At any time prior 
                          to the 90th day following a determination by 
                          the Secretary under clause (i) of this 
                          subparagraph, any manufacturer, distributor, or 
                          health care provider who will be adversely 
                          affected by such determination may file a 
                          petition with the United States Court of 
                          Appeals for the circuit wherein such person 
                          resides or has his principal place of business, 
                          for a judicial review of such determination. A 
                          copy of the petition shall be forthwith 
                          transmitted by the clerk of the court to the 
                          Secretary or other officer designated by the 
                          Secretary for that purpose. The Secretary 
                          thereupon shall file in the court the record of 
                          the findings on which the Secretary based his 
                          or her determination. The filing of a petition 
                          under this clause shall automatically stay the 
                          Secretary's determination for the duration of 
                          the judicial proceeding. The sole parties to 
                          the judicial proceeding shall be the Secretary 
                          and the petitioner. Intervention by third 
                          parties in the judicial proceeding shall not be 
                          permitted. No subpoenas shall be issued nor 
                          shall other compulsory process apply. The 
                          court's review of a determination by the 
                          Secretary under this clause shall conform to 
                          the procedures for judicial review of 
                          administrative orders set forth in paragraphs 
                          (2) through (6) of section 371(f) of title 21, 
                          United States Code, to the extent consistent 
                          with this section.
                      ``(E) Scope.--The presumption under subparagraph 
                  (A) shall apply regardless of whether the claim against 
                  the United States arises from the design, development, 
                  clinical testing and investigation, manufacture, 
                  labeling, distribution, sale, purchase, donation, 
                  dispensing, administration, or use by the Federal 
                  Government or by non-Federal Government customers.
                      ``(F) Designation.--In any declaration of a public 
                  health emergency under section 319, the Secretary shall 
                  identify the pandemic, epidemic, or biological, 
                  chemical, nuclear agent, or toxin that presents, or may 
                  present, a public health emergency and shall designate 
                  the security countermeasure(s) or qualified pandemic or 
                  epidemic product(s) to be sold by, purchased from, or 
                  donated by a manufacturer or drawn from the National 
                  Strategic Stockpile and shall specify in such 
                  designation the beginning and ending dates of such 
                  sale, purchase, donation, or use from the stockpile. 
                  The period so defined shall be the effective period of 
                  such qualification for any products specified in the 
                  designation. The declaration shall subsequently be 
                  amended to reflect any additional sale, purchase, or 
                  donation of products specified in the designation.
      ``(c) Definitions.--In this section:
              ``(1) Health care provider.--The term `health care 
          provider' means a person, including a volunteer, who lawfully 
          prescribes, administers, dispenses, or provides a facility to 
          administer a security countermeasure or a qualified pandemic or 
          epidemic product, including persons who prescribe, administer, 
          or provide a facility to administer in accordance with a 
          designation under subsection (b)(2)(F).
              ``(2) Loss.--The term `loss' means death, bodily injury, or 
          loss of or damage to property, including business interruption 
          loss.
              ``(3) Non-federal government customers.--The term `non-
          Federal Government customers' means any customer of a 
          manufacturer that is not an agency or instrumentality for the 
          United States Government with authority under Public Law 85-804 
          to provide for indemnification under certain circumstances for 
          third-party claims against its contractors, including a State, 
          a local authority, a private entity, a health care provider, or 
          an individual.
              ``(4) Qualified pandemic or epidemic product.--The term 
          `qualified pandemic or epidemic product' means a drug (as such 
          term is defined in section 201(g)(1) of the Federal Food, Drug, 
          and Cosmetic Act (21 U.S.C. 321(g)(1))), biological product (as 
          such term is defined by section 351(i) of this Act) or device 
          (as such term is defined by section 201(h) of the Federal food, 
          Drug and Cosmetic Act (21 U.S.C. 321(h))) designed, developed, 
          modified, or procured to diagnose, mitigate, prevent, treat, or 
          cure a pandemic or epidemic or limit the harm such pandemic or 
          epidemic might otherwise cause or a serious or life-threatening 
          disease or condition caused by such a product, that--
                      ``(A) is approved or cleared under chapter V of the 
                  Federal Food, Drug, and Cosmetic Act or licensed under 
                  section 351 of this Act;
                      ``(B) is a product for which the Secretary 
                  determines that sufficient and satisfactory clinical 
                  experience or research data (including data, if 
                  available, from pre-clinical and clinical trials) 
                  support a reasonable conclusion that the countermeasure 
                  will qualify for approval or licensing within 8 years 
                  after the date the Secretary declares a public health 
                  emergency as described in paragraph (1) or (2) of 
                  section 319(a); or
                      ``(C) is authorized by the Secretary under this 
                  section, except that the Secretary may authorize under 
                  this section the emergency use of a product only if, 
                  after consultation with the Director of the National 
                  Institutes of Health and the Director of the Centers 
                  for Disease Control and Prevention (to the extent 
                  feasible and appropriate given the circumstances of the 
                  emergency involved), the Secretary concludes--
                              ``(i) that an agent or toxin identified in 
                          a declaration described under subsection (b) 
                          can cause a serious or life-threatening disease 
                          or condition;
                              ``(ii) that, based on the totality of the 
                          scientific evidence available to the Secretary, 
                          including data from adequate and well-
                          controlled clinical trials, if available, it is 
                          reasonable to believe that--
                                      ``(I) the product may be effective 
                                  in diagnosing, mitigating, preventing, 
                                  treating or curing--
                                              ``(aa) a pandemic or 
                                          epidemic; or
                                              ``(bb) a serious or life-
                                          threatening disease or 
                                          condition caused by a product; 
                                          and
                                      ``(II) the known and potential 
                                  benefits of the product, when used to 
                                  diagnose, mitigate, prevent, treat or 
                                  cure such disease or condition, 
                                  outweigh the known and potential risks 
                                  of the product;
                              ``(iii) that there is no adequate, 
                          approved, and available alternative to the 
                          product for diagnosing, mitigating, preventing, 
                          treating or curing such disease or condition; 
                          and
                              ``(iv) that such other criteria as the 
                          Secretary may by regulation prescribe are 
                          satisfied.
              ``(5) Security countermeasure.--The term `security 
          countermeasure' has the meaning given such term in section 
          319F-2(c)(1)(B).''.
  
  SEC. 3. TECHNICAL AMENDMENT.
  
      Section 319(a)(1) of the Public Health Service Act (42 U.S.C. 247d 
  (a)(1)) is amended by inserting ``, or may present,'' after 
  ``present''.
target: Bioterror and Pandemic Preparedness Protection Act - Amends the Public Health Service Act to establish an exclusive federal cause of action for all claims relating to a qualified pandemic or epidemic product or a security countermeasure.
  
  Restricts all causes of action for such claims against a manufacturer, distributor, or health care provider and instead provides for sole and exclusive action against the United States. Gives jurisdiction over such an action to the U.S. District Court for the District of Columbia.
  
  Establishes a rebuttable presumption of immunity for the federal government in any such action concerning: (1) a security countermeasure that has been procured for the National Strategic Stockpile; (2) a qualified pandemic or epidemic product that has been procured by the Secretary of Health and Human Services; or (3) a security countermeasure or designated qualified pandemic or epidemic product relating to an actual or potential public health emergency.
  
  Allows a party to petition the Secretary to investigate claims against a manufacturer, distributor, dispenser, or heath care provider. Disallows judicial review of the Secretary's decision as to whether to undertake such an investigation.
  
  Declares that the immunity presumption shall be overcome by a determination by the Secretary, by finding clear and convincing evidence, that the manufacturer, distributor, or health care provider intentionally or with willful disregard violated the Federal Food, Drug, and Cosmetic Act or this Act and that such violation: (1) caused the product to present a significant health risk; and (2) proximately caused the injury alleged by the petitioner.
feat_title: A bill to amend the Public Health Service Act to provide protections for first responders.