H. R. 2863—138
SEC. 5023. The statement of the managers correction referenced 
under the second paragraph of the heading ‘‘Community develop-
ment fund’’ in title III of Public Law 109–115 (as in effect pursuant 
to H. Con. Res. 308, 109th Congress) is deemed to be amended—
(1) with respect to item number 65 by striking ‘‘$125,000 
to Esperanza Mercado Project, California for the Esperanza 
Community Maple-Mae Project;’’ and inserting ‘‘$125,000 to 
the Esperanza Community Housing Corporation, Los Angeles, 
California for the Mercado La Paloma project;’’; 
(2) with respect to item number 840 by striking ‘‘$100,000 
to Gwen’s Girls, Inc. in Pittsburgh, Pennsylvania for construc-
tion of a residential facility;’’ and inserting ‘‘$100,000 to the 
Bloomfield-Garfield Association in Pittsburgh, Pennsylvania for 
acquisition and demolition;’’; 
(3) with respect to item number 411 by striking ‘‘$200,000 
to the City of Holyoke, Massachusetts for renovations of facility 
for 
Solutions 
Development 
Corporation;’’ 
and 
inserting 
‘‘$200,000 to Solutions Development Inc. of Holyoke, Massachu-
setts for facility renovations;’’; 
(4) with respect to item number 314 by striking ‘‘$225,000 
to the City of Harvey, Illinois for demolition and redevelopment 
of property to aid the community;’’ and inserting ‘‘$225,000 
to the Village of Riverdale, Illinois for planning, design, acquisi-
tion, and demolition;’’; 
(5) with respect to item number 715 by striking ‘‘39th’’ 
and inserting ‘‘59th’’; 
(6) with respect to item number 26 by striking ‘‘Center’’ 
and inserting ‘‘College’’; 
(7) with respect to item number 372 by striking ‘‘Fairview, 
Kansas’’ and inserting ‘‘Fairway, Kansas’’; 
(8) with respect to item number 584 by striking ‘‘City 
of Asheville, North Carolina for the renovation of the Asheville 
Veterans Memorial Stadium’’ and inserting ‘‘UNC Asheville 
Science and Multimedia Center, City of Asheville, North Caro-
lina for the construction of a new science and multi-media 
building’’; and 
(9) with respect to item number 341 by striking ‘‘Village 
of Northfield, IL’’ and inserting ‘‘Northfield Park District of 
Illinois’’. 
SEC. 5024. The referenced statement of the managers under 
the heading ‘‘Community development fund’’ in title II of division 
I of Public Law 108–447 is deemed to be amended with respect 
to item 571 by striking ‘‘$575,000 to the Metropolitan Development 
Association in Syracuse, New York for the Essential New York 
Initiative’’ and inserting ‘‘$200,000 to the Monroe County Industrial 
Development Agency for streetscape and infrastructure improve-
ments to the Medley Center in the Town of Irondequoit, New 
York; $90,000 to the City of Syracuse, New York for facilities 
and equipment improvements for the Syracuse Food Bank; $200,000 
to the City of Syracuse, New York for renovations and infrastructure 
improvements to the Lofts on Willow Urban Village project; and, 
$85,000 to Cayuga County, New York for the CIVIC Heritage 
Historical Society for the construction of a history center;’’. 
SEC. 5025. Effective upon the enactment of this Act, none 
of the funds appropriated or otherwise made available by the 2001 
Emergency Supplemental Appropriations Act for Recovery from and 
Response to Terrorist Attacks on the United States (Public Law
H. R. 2863—139
107–38) shall be transferred to or from the Emergency Response 
Fund. 
This division may be cited as the ‘‘Emergency Supplemental 
Appropriations Act to Address Hurricanes in the Gulf of Mexico 
and Pandemic Influenza, 2006’’. 
DIVISION C—PUBLIC READINESS AND 
EMERGENCY PREPAREDNESS ACT 
SEC. 1. SHORT TITLE. 
This division may be cited as the ‘‘Public Readiness and Emer-
gency Preparedness Act’’. 
SEC. 2. TARGETED LIABILITY PROTECTIONS FOR PANDEMIC AND EPI-
DEMIC PRODUCTS AND SECURITY COUNTERMEASURES. 
Part B of title III of the Public Health Service Act (42 U.S.C. 
243 et seq.) is amended by inserting after section 319F–2 the 
following section: 
‘‘SEC. 319F–3. TARGETED LIABILITY PROTECTIONS FOR PANDEMIC AND 
EPIDEMIC 
PRODUCTS 
AND 
SECURITY 
COUNTER-
MEASURES. 
‘‘(a) LIABILITY PROTECTIONS.—
‘‘(1) IN GENERAL.—Subject to the other provisions of this 
section, a covered person shall be immune from suit and 
liability under Federal and State law with respect to all claims 
for loss caused by, arising out of, relating to, or resulting 
from the administration to or the use by an individual of 
a covered countermeasure if a declaration under subsection 
(b) has been issued with respect to such countermeasure. 
‘‘(2) SCOPE OF CLAIMS FOR LOSS.—
‘‘(A) LOSS.—For purposes of this section, the term ‘loss’ 
means any type of loss, including—
‘‘(i) death; 
‘‘(ii) physical, mental, or emotional injury, illness, 
disability, or condition; 
‘‘(iii) fear of physical, mental, or emotional injury, 
illness, disability, or condition, including any need for 
medical monitoring; and 
‘‘(iv) loss of or damage to property, including busi-
ness interruption loss. 
Each of clauses (i) through (iv) applies without regard 
to the date of the occurrence, presentation, or discovery 
of the loss described in the clause. 
‘‘(B) SCOPE.—The immunity under paragraph (1) 
applies to any claim for loss that has a causal relationship 
with the administration to or use by an individual of a 
covered countermeasure, including a causal relationship 
with the design, development, clinical testing or investiga-
tion, manufacture, labeling, distribution, formulation, pack-
aging, marketing, promotion, sale, purchase, donation, dis-
pensing, prescribing, administration, licensing, or use of 
such countermeasure. 
‘‘(3) CERTAIN CONDITIONS.—Subject to the other provisions 
of this section, immunity under paragraph (1) with respect 
to a covered countermeasure applies only if—
H. R. 2863—140
‘‘(A) the countermeasure was administered or used 
during the effective period of the declaration that was 
issued under subsection (b) with respect to the counter-
measure; 
‘‘(B) the countermeasure was administered or used for 
the category or categories of diseases, health conditions, 
or threats to health specified in the declaration; and 
‘‘(C) in addition, in the case of a covered person who 
is a program planner or qualified person with respect to 
the administration or use of the countermeasure, the 
countermeasure was administered to or used by an indi-
vidual who—
‘‘(i) was in a population specified by the declara-
tion; and 
‘‘(ii) was at the time of administration physically 
present in a geographic area specified by the declara-
tion or had a connection to such area specified in 
the declaration. 
‘‘(4) APPLICABILITY OF CERTAIN CONDITIONS.—With respect 
to immunity under paragraph (1) and subject to the other 
provisions of this section: 
‘‘(A) In the case of a covered person who is a manufac-
turer or distributor of the covered countermeasure involved, 
the immunity applies without regard to whether such 
countermeasure was administered to or used by an indi-
vidual in accordance with the conditions described in para-
graph (3)(C). 
‘‘(B) In the case of a covered person who is a program 
planner or qualified person with respect to the administra-
tion or use of the covered countermeasure, the scope of 
immunity includes circumstances in which the counter-
measure was administered to or used by an individual 
in circumstances in which the covered person reasonably 
could have believed that the countermeasure was adminis-
tered or used in accordance with the conditions described 
in paragraph (3)(C). 
‘‘(5) EFFECT OF DISTRIBUTION METHOD.—The provisions of 
this section apply to a covered countermeasure regardless of 
whether such countermeasure is obtained by donation, commer-
cial sale, or any other means of distribution, except to the 
extent that, under paragraph (2)(E) of subsection (b), the dec-
laration under such subsection provides that subsection (a) 
applies only to covered countermeasures obtained through a 
particular means of distribution. 
‘‘(6) REBUTTABLE
PRESUMPTION.—For purposes of para-
graph (1), there shall be a rebuttable presumption that any 
administration or use, during the effective period of the emer-
gency declaration by the Secretary under subsection (b), of 
a covered countermeasure shall have been for the category 
or categories of diseases, health conditions, or threats to health 
with respect to which such declaration was issued. 
‘‘(b) DECLARATION BY SECRETARY.—
‘‘(1) AUTHORITY TO ISSUE DECLARATION.—Subject to para-
graph (2), if the Secretary makes a determination that a disease 
or other health condition or other threat to health constitutes 
a public health emergency, or that there is a credible risk
H. R. 2863—141
that the disease, condition, or threat may in the future con-
stitute such an emergency, the Secretary may make a declara-
tion, through publication in the Federal Register, recom-
mending, under conditions as the Secretary may specify, the 
manufacture, testing, development, distribution, administra-
tion, or use of one or more covered countermeasures, and stating 
that subsection (a) is in effect with respect to the activities 
so recommended. 
‘‘(2) CONTENTS.—In issuing a declaration under paragraph 
(1), the Secretary shall identify, for each covered counter-
measure specified in the declaration—
‘‘(A) the category or categories of diseases, health condi-
tions, or threats to health for which the Secretary rec-
ommends the administration or use of the countermeasure; 
‘‘(B) the period or periods during which, including as 
modified by paragraph (3), subsection (a) is in effect, which 
period or periods may be designated by dates, or by mile-
stones or other description of events, including factors 
specified in paragraph (6); 
‘‘(C) the population or populations of individuals for 
which subsection (a) is in effect with respect to the adminis-
tration or use of the countermeasure (which may be a 
specification 
that 
such 
subsection 
applies 
without 
geographic limitation to all individuals); 
‘‘(D) the geographic area or areas for which subsection 
(a) is in effect with respect to the administration or use 
of the countermeasure (which may be a specification that 
such subsection applies without geographic limitation), 
including, with respect to individuals in the populations 
identified under subparagraph (C), a specification, as deter-
mined appropriate by the Secretary, of whether the declara-
tion applies only to individuals physically present in such 
areas or whether in addition the declaration applies to 
individuals who have a connection to such areas, which 
connection is described in the declaration; and 
‘‘(E) whether subsection (a) is effective only to a par-
ticular means of distribution as provided in subsection 
(a)(5) for obtaining the countermeasure, and if so, the par-
ticular means to which such subsection is effective. 
‘‘(3) EFFECTIVE PERIOD OF DECLARATION.—
‘‘(A) FLEXIBILITY OF PERIOD.—The Secretary may, in 
describing periods under paragraph (2)(B), have different 
periods for different covered persons to address different 
logistical, practical or other differences in responsibilities. 
‘‘(B) ADDITIONAL TIME TO BE SPECIFIED.—In each dec-
laration under paragraph (1), the Secretary, after con-
sulting, to the extent the Secretary deems appropriate, 
with the manufacturer of the covered countermeasure, shall 
also specify a date that is after the ending date specified 
under paragraph (2)(B) and that allows what the Secretary 
determines is—
‘‘(i) a reasonable period for the manufacturer to 
arrange for disposition of the covered countermeasure, 
including the return of such product to the manufac-
turer; and
H. R. 2863—142
‘‘(ii) a reasonable period for covered persons to 
take such other actions as may be appropriate to limit 
administration or use of the covered countermeasure. 
‘‘(C) ADDITIONAL
PERIOD
FOR
CERTAIN
STRATEGIC 
NATIONAL STOCKPILE COUNTERMEASURES.—With respect to 
a covered countermeasure that is in the stockpile under 
section 319F-2, if such countermeasure was the subject 
of a declaration under paragraph (1) at the time that 
it was obtained for the stockpile, the effective period of 
such declaration shall include a period when the counter-
measure is administered or used pursuant to a distribution 
or release from the stockpile. 
‘‘(4) AMENDMENTS TO DECLARATION.—The Secretary may 
through publication in the Federal Register amend any portion 
of a declaration under paragraph (1). Such an amendment 
shall not retroactively limit the applicability of subsection (a) 
with respect to the administration or use of the covered counter-
measure involved. 
‘‘(5) CERTAIN
DISCLOSURES.—In publishing a declaration 
under paragraph (1) in the Federal Register, the Secretary 
is not required to disclose any matter described in section 
552(b) of title 5, United States Code. 
‘‘(6) FACTORS TO BE CONSIDERED.—In deciding whether and 
under what circumstances or conditions to issue a declaration 
under paragraph (1) with respect to a covered countermeasure, 
the Secretary shall consider the desirability of encouraging 
the design, development, clinical testing or investigation, manu-
facture, labeling, distribution, formulation, packaging, mar-
keting, promotion, sale, purchase, donation, dispensing, pre-
scribing, administration, licensing, and use of such counter-
measure. 
‘‘(7) JUDICIAL REVIEW.—No court of the United States, or 
of any State, shall have subject matter jurisdiction to review, 
whether by mandamus or otherwise, any action by the Sec-
retary under this subsection. 
‘‘(8) PREEMPTION
OF
STATE
LAW.—During the effective 
period of a declaration under subsection (b), or at any time 
with respect to conduct undertaken in accordance with such 
declaration, no State or political subdivision of a State may 
establish, enforce, or continue in effect with respect to a covered 
countermeasure any provision of law or legal requirement 
that—
‘‘(A) is different from, or is in conflict with, any require-
ment applicable under this section; and 
‘‘(B) relates to the design, development, clinical testing 
or investigation, formulation, manufacture, distribution, 
sale, donation, purchase, marketing, promotion, packaging, 
labeling, licensing, use, any other aspect of safety or effi-
cacy, or the prescribing, dispensing, or administration by 
qualified persons of the covered countermeasure, or to any 
matter included in a requirement applicable to the covered 
countermeasure under this section or any other provision 
of this Act, or under the Federal Food, Drug, and Cosmetic 
Act. 
‘‘(9) REPORT TO CONGRESS.—Within 30 days after making 
a declaration under paragraph (1), the Secretary shall submit 
to the appropriate committees of the Congress a report that
H. R. 2863—143
provides an explanation of the reasons for issuing the declara-
tion and the reasons underlying the determinations of the 
Secretary with respect to paragraph (2). Within 30 days after 
making an amendment under paragraph (4), the Secretary 
shall submit to such committees a report that provides the 
reasons underlying the determination of the Secretary to make 
the amendment. 
‘‘(c) DEFINITION OF WILLFUL MISCONDUCT.—
‘‘(1) DEFINITION.—
‘‘(A) IN GENERAL.—Except as the meaning of such term 
is further restricted pursuant to paragraph (2), the term 
‘willful misconduct’ shall, for purposes of subsection (d), 
denote an act or omission that is taken—
‘‘(i) intentionally to achieve a wrongful purpose; 
‘‘(ii) knowingly without legal or factual justifica-
tion; and 
‘‘(iii) in disregard of a known or obvious risk that 
is so great as to make it highly probable that the 
harm will outweigh the benefit. 
‘‘(B) RULE OF CONSTRUCTION.—The criterion stated in 
subparagraph (A) shall be construed as establishing a 
standard for liability that is more stringent than a standard 
of negligence in any form or recklessness. 
‘‘(2) AUTHORITY TO PROMULGATE REGULATORY DEFINITION.—
‘‘(A) IN GENERAL.—The Secretary, in consultation with 
the Attorney General, shall promulgate regulations, which 
may be promulgated through interim final rules, that fur-
ther restrict the scope of actions or omissions by a covered 
person that may qualify as ‘willful misconduct’ for purposes 
of subsection (d). 
‘‘(B) FACTORS TO BE CONSIDERED.—In promulgating the 
regulations under this paragraph, the Secretary, in con-
sultation with the Attorney General, shall consider the 
need to define the scope of permissible civil actions under 
subsection (d) in a way that will not adversely affect the 
public health. 
‘‘(C) TEMPORAL SCOPE OF REGULATIONS.—The regula-
tions under this paragraph may specify the temporal effect 
that they shall be given for purposes of subsection (d). 
‘‘(D) INITIAL RULEMAKING.—Within 180 days after the 
enactment of the Public Readiness and Emergency 
Preparedness Act, the Secretary, in consultation with the 
Attorney General, shall commence and complete an initial 
rulemaking process under this paragraph. 
‘‘(3) PROOF OF WILLFUL MISCONDUCT.—In an action under 
subsection (d), the plaintiff shall have the burden of proving 
by clear and convincing evidence willful misconduct by each 
covered person sued and that such willful misconduct caused 
death or serious physical injury. 
‘‘(4) DEFENSE FOR ACTS OR OMISSIONS TAKEN PURSUANT 
TO
SECRETARY’S
DECLARATION.—Notwithstanding any other 
provision of law, a program planner or qualified person shall 
not have engaged in ‘willful misconduct’ as a matter of law 
where such program planner or qualified person acted con-
sistent with applicable directions, guidelines, or recommenda-
tions by the Secretary regarding the administration or use 
of a covered countermeasure that is specified in the declaration
H. R. 2863—144
under subsection (b), provided either the Secretary, or a State 
or local health authority, was provided with notice of informa-
tion regarding serious physical injury or death from the 
administration or use of a covered countermeasure that is mate-
rial to the plaintiff’s alleged loss within 7 days of the actual 
discovery of such information by such program planner or quali-
fied person. 
‘‘(5) EXCLUSION
FOR
REGULATED
ACTIVITY
OF
MANUFAC-
TURER OR DISTRIBUTOR.—
‘‘(A) IN GENERAL.—If an act or omission by a manufac-
turer or distributor with respect to a covered counter-
measure, which act or omission is alleged under subsection 
(e)(3)(A) to constitute willful misconduct, is subject to regu-
lation by this Act or by the Federal Food, Drug, and Cos-
metic Act, such act or omission shall not constitute ‘willful 
misconduct’ for purposes of subsection (d) if—
‘‘(i) neither the Secretary nor the Attorney General 
has initiated an enforcement action with respect to 
such act or omission; or 
‘‘(ii) such an enforcement action has been initiated 
and the action has been terminated or finally resolved 
without a covered remedy. 
Any action or proceeding under subsection (d) shall be 
stayed during the pendency of such an enforcement action. 
‘‘(B) DEFINITIONS.—For purposes of this paragraph, the 
following terms have the following meanings: 
‘‘(i) ENFORCEMENT ACTION.—The term ‘enforcement 
action’ means a criminal prosecution, an action seeking 
an injunction, a seizure action, a civil monetary pro-
ceeding based on willful misconduct, a mandatory 
recall of a product because voluntary recall was 
refused, a proceeding to compel repair or replacement 
of a product, a termination of an exemption under 
section 505(i) or 520(g) of the Federal Food, Drug, 
and Cosmetic Act, a debarment proceeding, an investi-
gator disqualification proceeding where an investigator 
is an employee or agent of the manufacturer, a revoca-
tion, based on willful misconduct, of an authorization 
under section 564 of such Act, or a suspension or 
withdrawal, based on willful misconduct, of an 
approval or clearance under chapter V of such Act 
or of a licensure under section 351 of this Act. 
‘‘(ii) COVERED REMEDY.—The term ‘covered remedy’ 
means an outcome—
‘‘(I) that is a criminal conviction, an injunction, 
or a condemnation, a civil monetary payment, a 
product recall, a repair or replacement of a 
product, a termination of an exemption under sec-
tion 505(i) or 520(g) of the Federal Food, Drug, 
and Cosmetic Act, a debarment, an investigator 
disqualification, a revocation of an authorization 
under section 564 of such Act, or a suspension 
or withdrawal of an approval or clearance under 
chapter 5 of such Act or of a licensure under 
section 351 of this Act; and 
‘‘(II) that results from a final determination 
by a court or from a final agency action.
H. R. 2863—145
‘‘(iii) FINAL.—The terms ‘final’ and ‘finally’—
‘‘(I) with respect to a court determination, or 
to a final resolution of an enforcement action that 
is a court determination, mean a judgment from 
which an appeal of right cannot be taken or a 
voluntary or stipulated dismissal; and 
‘‘(II) with respect to an agency action, or to 
a final resolution of an enforcement action that 
is an agency action, mean an order that is not 
subject to further review within the agency and 
that has not been reversed, vacated, enjoined, or 
otherwise nullified by a final court determination 
or a voluntary or stipulated dismissal. 
‘‘(C) RULES OF CONSTRUCTION.—
‘‘(i) IN GENERAL.—Nothing in this paragraph shall 
be construed—
‘‘(I) to affect the interpretation of any provision 
of the Federal Food, Drug, and Cosmetic Act, of 
this Act, or of any other applicable statute or regu-
lation; or 
‘‘(II) to impair, delay, alter, or affect the 
authority, including the enforcement discretion, of 
the United States, of the Secretary, of the Attorney 
General, or of any other official with respect to 
any administrative or court proceeding under this 
Act, under the Federal Food, Drug, and Cosmetic 
Act, under title 18 of the United States Code, 
or under any other applicable statute or regulation. 
‘‘(ii) MANDATORY
RECALLS.—A mandatory recall 
called for in the declaration is not a Food and Drug 
Administration enforcement action. 
‘‘(d) EXCEPTION TO IMMUNITY OF COVERED PERSONS.—
‘‘(1) IN GENERAL.—Subject to subsection (f), the sole excep-
tion to the immunity from suit and liability of covered persons 
set forth in subsection (a) shall be for an exclusive Federal 
cause of action against a covered person for death or serious 
physical injury proximately caused by willful misconduct, as 
defined pursuant to subsection (c), by such covered person. 
For purposes of section 2679(b)(2)(B) of title 28, United States 
Code, such a cause of action is not an action brought for 
violation of a statute of the United States under which an 
action against an individual is otherwise authorized. 
‘‘(2) PERSONS WHO CAN SUE.—An action under this sub-
section may be brought for wrongful death or serious physical 
injury by any person who suffers such injury or by any rep-
resentative of such a person. 
‘‘(e) PROCEDURES FOR SUIT.—
‘‘(1) EXCLUSIVE FEDERAL JURISDICTION.—Any action under 
subsection (d) shall be filed and maintained only in the United 
States District Court for the District of Columbia. 
‘‘(2) GOVERNING
LAW.—The substantive law for decision 
in an action under subsection (d) shall be derived from the 
law, including choice of law principles, of the State in which 
the alleged willful misconduct occurred, unless such law is 
inconsistent with or preempted by Federal law, including provi-
sions of this section.
H. R. 2863—146
‘‘(3) PLEADING WITH PARTICULARITY.—In an action under 
subsection (d), the complaint shall plead with particularity 
each element of the plaintiff’s claim, including—
‘‘(A) each act or omission, by each covered person sued, 
that is alleged to constitute willful misconduct relating 
to the covered countermeasure administered to or used 
by the person on whose behalf the complaint was filed; 
‘‘(B) facts supporting the allegation that such alleged 
willful misconduct proximately caused the injury claimed; 
and 
‘‘(C) facts supporting the allegation that the person 
on whose behalf the complaint was filed suffered death 
or serious physical injury. 
‘‘(4) 
VERIFICATION, 
CERTIFICATION, 
AND
MEDICAL 
RECORDS.—
‘‘(A) IN GENERAL.—In an action under subsection (d), 
the plaintiff shall verify the complaint in the manner stated 
in subparagraph (B) and shall file with the complaint the 
materials described in subparagraph (C). A complaint that 
does not substantially comply with subparagraphs (B) and 
(C) shall not be accepted for filing and shall not stop 
the running of the statute of limitations. 
‘‘(B) VERIFICATION REQUIREMENT.—
‘‘(i) IN GENERAL.—The complaint shall include a 
verification, made by affidavit of the plaintiff under 
oath, stating that the pleading is true to the knowledge 
of the deponent, except as to matters specifically identi-
fied as being alleged on information and belief, and 
that as to those matters the plaintiff believes it to 
be true. 
‘‘(ii) IDENTIFICATION OF MATTERS ALLEGED UPON 
INFORMATION
AND
BELIEF.—Any matter that is not 
specifically identified as being alleged upon the 
information and belief of the plaintiff, shall be regarded 
for all purposes, including a criminal prosecution, as 
having been made upon the knowledge of the plaintiff. 
‘‘(C) MATERIALS REQUIRED.—In an action under sub-
section (d), the plaintiff shall file with the complaint—
‘‘(i) an affidavit, by a physician who did not treat 
the person on whose behalf the complaint was filed, 
certifying, and explaining the basis for such physician’s 
belief, that such person suffered the serious physical 
injury or death alleged in the complaint and that such 
injury or death was proximately caused by the adminis-
tration or use of a covered countermeasure; and 
‘‘(ii) certified medical records documenting such 
injury or death and such proximate causal connection. 
‘‘(5) THREE-JUDGE COURT.—Any action under subsection (d) 
shall be assigned initially to a panel of three judges. Such 
panel shall have jurisdiction over such action for purposes 
of considering motions to dismiss, motions for summary judg-
ment, and matters related thereto. If such panel has denied 
such motions, or if the time for filing such motions has expired, 
such panel shall refer the action to the chief judge for assign-
ment for further proceedings, including any trial. Section 1253 
of title 28, United States Code, and paragraph (3) of subsection