118 STAT. 846 PUBLIC LAW 108–276—JULY 21, 2004 ‘‘(B) REQUIREMENTS.—In making a determination under subparagraph (A) with respect to a security counter measure, the Secretary shall determine and consider the following: ‘‘(i) The quantities of the product that will be needed to meet the needs of the stockpile. ‘‘(ii) The feasibility of production and delivery within eight years of sufficient quantities of the product. ‘‘(iii) Whether there is a lack of a significant commercial market for the product at the time of procurement, other than as a security countermeasure. ‘‘(6) RECOMMENDATION FOR PRESIDENT’S APPROVAL.— ‘‘(A) RECOMMENDATION FOR PROCUREMENT.—In the case of a security countermeasure that the Secretary has, in accordance with paragraphs (3) and (5), determined to be appropriate for procurement under this subsection, the Homeland Security Secretary and the Secretary shall jointly submit to the President, in coordination with the Director of the Office of Management and Budget, a rec ommendation that the special reserve fund under para graph (10) be made available for the procurement of such countermeasure. ‘‘(B) PRESIDENTIAL APPROVAL.—The special reserve fund under paragraph (10) is available for a procurement of a security countermeasure only if the President has approved a recommendation under subparagraph (A) regarding the countermeasure. ‘‘(C) NOTICE TO DESIGNATED CONGRESSIONAL COMMIT TEES.—The Secretary and the Homeland Security Secretary shall notify the designated congressional committees of each decision of the President to approve a recommendation under subparagraph (A). Such notice shall include an expla nation of the decision to make available the special reserve fund under paragraph (10) for procurement of such a countermeasure, including, where available, the number of, nature of, and other information concerning potential suppliers of such countermeasure, and whether other poten tial suppliers of the same or similar countermeasures were considered and rejected for procurement under this section and the reasons therefor. ‘‘(D) SUBSEQUENT SPECIFIC COUNTERMEASURES.— Procurement under this subsection of a security counter measure for a particular purpose does not preclude the subsequent procurement under this subsection of any other security countermeasure for such purpose if the Secretary has determined under paragraph (5)(A) that such counter measure is appropriate for inclusion in the stockpile and if, as determined by the Secretary, such countermeasure provides improved safety or effectiveness, or for other rea sons enhances preparedness to respond to threats of use of a biological, chemical, radiological, or nuclear agent. Such a determination by the Secretary is committed to agency discretion. ‘‘(E) RULE OF CONSTRUCTION.—Recommendations and approvals under this paragraph apply solely to determina tions that the special reserve fund under paragraph (10) Applicability.
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