16 October 2000 Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html ----------------------------------------------------------------------- [Congressional Record: October 12, 2000 (Senate)] [Page S10412-S10424] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr12oc00-200] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. BIDEN: S. 3202. A bill to amend title 18, United States Code, with respect to biological weapons; to the Committee on the Judiciary. Dangerous Biological Agent and Toxin Control Act of 2000 Mr. BIDEN. Mr. President, today I am introducing the Dangerous Biological Agent and Toxin Control Act of 2000. Similar legislation was originally submitted by the Administration in 1999 as part of a larger anti-crime proposal. Today a terrorist attack in the United States using chemical or biological weapons is one of the most significant terrorist threats we face. In recent years, through the ratification of the Chemical Weapons Convention and the enactment of the related implementing legislation, we have provided several statutory safeguards designed to prevent and deter against an attack using chemical weapons. But gaps remain in our laws regulating biological pathogens. It is essential not only that America be fully prepared to respond to such an attack, but also that we take steps to prevent them from happening in the first place. Currently, federal law bans only the development and possession of biological agents for use as a weapon. But there are sensible things that we can do in the near term to give federal law enforcement the tools that they need to protect our country from these threats--before they materialize into unspeakable scenarios. Earlier this year, the National Commission on Terrorism reported to Congress. Among its conclusions was that the federal laws regarding the possession of dangerous pathogens are currently insufficient. The Commission specifically recommended, among other things, that Congress make it illegal for anyone not properly certified to possess certain critical pathogens. And they were right. The bill I introduce today fill several gaps in the law. First, the bill will make it unlawful for anyone to possess biological agent, toxin or delivery system of a type or in a quantity that under the circumstances is not reasonably justified by a prophylactic, protective or other peaceful purpose. Second, the bill makes it unlawful to handle a biological agent with conscious disregard of an unreasonable risk to public health and safety. Third, the legislation makes it unlawful to knowingly communicate false, but believable information, concerning an activity which would constitute a violation of this statute. Finally, the bill requires people to report to the federal government their possession of listed biological agents, prohibits the transfer of a listed biological agent to a person who is not registered and makes possession by certain restricted persons--such as convicted felons--unlawful. Closing these gaps in the law would be a modest but important step to prevent and deter a terrorist act involving biological agents. This should not be a partisan issue. This is an issue of governance, not politics. From Wilmington to Washington State, our constituents need protection and expect and deserve nothing less. Mr. President, I recognize that the Congressional session is about to end, and therefore it is too late for the bill to be considered this year. But I wanted to introduce the bill now so that it would be available for review by my colleagues and other interested parties inside and outside of government. In particular, I invite comment by interested parties in the scientific community, the business community, and the civil liberties community. I regard the bill I introduce today as an initial draft that is a work in progress, and I welcome constructive comments and suggestions for improvement. I look forward to working with my colleagues on the Committee on the Judiciary early in the next session of Congress. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 3202 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Dangerous Biological Agent and Toxin Control Act of 2000''. SEC. 2. EXPANSION OF THE BIOLOGICAL WEAPONS STATUTE. (a) Findings and Purposes.-- (1) Findings.--Congress finds that-- (A) certain biological agents and toxins have the potential to pose a severe threat to the Nation's public health and safety, and thereby affect interstate and foreign commerce; (B) the Secretary of Health and Human Services has published a list of biological agents and toxins that pose a severe threat to the Nation's public health and safety as an appendix to part 72 of title 42, Code of Federal Regulations; [[Page S10422]] (C) biological agents and toxins can be used as weapons by individuals or organizations for the purpose of domestic or international terrorism or for other criminal purposes; (D) terrorists and other criminals can also harm national security, drain the limited resources of all levels of government devoted to thwarting biological weapons, and damage interstate and foreign commerce by threatening to use, and by falsely reporting efforts to use, biological agents and toxins as weapons; (E) the Biological Weapons Convention obligates the United States to take necessary measures within the United States to prohibit and prevent the development, production, stockpiling, acquisition, or retention of biological agents and toxins of types and in quantities that have no justification for prophylactic, protective, or other peaceful purposes; (F) the mere possession of biological agents and toxins is a potential danger that affects the obligations of the United States under the Biological Weapons Convention and affects interstate and foreign commerce; and (G) persons in possession of harmful biological agents and toxins should handle them in a safe manner and, in the case of agents and toxins listed by the Department of Health and Human Services as posing a severe threat to the Nation's public health and safety, report their possession and the purpose for their possession to the appropriate Federal agency in order to ensure that such possession is for peaceful scientific research or development. (2) Purposes.--The purposes of this section are to-- (A) strengthen the implementation by the United States of the Biological Weapons Convention and to ensure that biological agents and toxins are possessed for only prophylactic, protective, or other peaceful purposes; (B) establish penalties for the false reporting of violations of chapter 10 of title 18, United States Code (relating to biological weapons); and (C) improve the statutory definitions relating to biological weapons. (b) Additional Measures.-- (1) In general.--Section 175 of title 18, United States Code, is amended by adding at the end the following: ``(c) Additional Prohibitions Relating to Biological Agents, Toxins, and Delivery Systems.-- ``(1) Unlawful possession.--Whoever knowingly possesses any biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic, protective, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10 years, or both. Knowledge of whether the type or quantity of any biological agent, toxin, or delivery system is reasonably justified by a prophylactic, protective, or other peaceful purpose is not an element of the offense. For purposes of this paragraph, the terms `biological agent' and `toxin' do not encompass any biological agent or toxin that is in its naturally occurring environment, if such agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source. ``(2) Unsafe handling.-- ``(A) In general.--Whoever, with conscious disregard of an unreasonable risk to public health and safety, handles an item knowing it to be a biological agent, toxin, or delivery system in a manner that grossly deviates from accepted norms, shall be fined under this title, imprisoned not more than 1 year, or both. ``(B) Aggravated offense.--Whoever in the course of a violation of subparagraph (A) causes bodily injury (as defined in section 1365(g)(4) of this title) to any individual (other than the perpetrator)-- ``(i) shall be fined under this title, imprisoned not more than 10 years, or both; and ``(ii) if death results from the offense, shall be fined under this title, imprisoned for any term of years or for life, or both fined and imprisoned. ``(d) False Information.-- ``(1) Criminal violation.--Whoever communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, concerning the existence of activity that would constitute a violation of subsection (a) or (c) shall be fined under this title, imprisoned not more than 5 years, or both. ``(2) Civil penalty.--Whoever communicates information, knowing the information to be false, concerning the existence of activity that would constitute a violation of subsection (a) or (c) is liable to the United States or any State for a civil penalty of the greater of $10,000 or the amount of money expended by the United States or the State in responding to the false information. ``(e) Reporting, Transfer, and Possession of Select Agents.-- ``(1) Obligation to report.--Any person who possesses a select agent shall report such possession to the designated agency, in the manner prescribed by the designated agency, within 72 hours of the effective date of the regulation issued by that agency pursuant to this paragraph or within 72 hours of subsequently obtaining possession of the agent or toxin, except that, if such person is a registered entity, the reporting, if any, shall be in the manner as otherwise directed by regulation by the designated agency. If a person complies with this paragraph, there is no obligation for any employee of such person to file a separate report concerning the employee's possession of a select agent in the workplace of such person. ``(2) Criminal penalty for willful failure to report.--Any person who willfully fails to make the report required by paragraph (1) within the prescribed period shall be fined under this title, imprisoned not more than 3 years, or both. In this paragraph, the term `willfully' means an intentional violation of a known duty to report. ``(3) Civil penalty for failure to report.--Any person who fails to make the report required by paragraph (1) within the prescribed period is liable to the United States for a civil penalty of $5,000. ``(4) Penalty for possession of unreported select agents.-- Any person who knowingly possesses a biological agent or toxin that is a select agent for which a report required by paragraph (1) has not been made shall be fined under this title, imprisoned not more than 1 year, or both. ``(5) Unauthorized transfer of select agents.--Whoever knowingly transfers a select agent to any person who is not a registered entity shall be fined under this title, imprisoned not more than 5 years, or both. For purposes of this paragraph, the term `transfers' does not encompass the transfer of a select agent within the workplace between employees of the same registered entity, or between employees of any person who has filed the report required by paragraph (1), if the transfer is authorized by such entity or person. ``(6) Possession of select agents by restricted individuals.-- ``(A) Prohibition on possession.--Except as otherwise provided in this section or in section 2(b)(3)(G) of the Dangerous Biological Agent and Toxin Control Act of 2000, no restricted individual shall knowingly possess or attempt to possess any biological agent or toxin if that biological agent or toxin is a select agent. ``(B) Penalty.--Any individual who violates subparagraph (A) shall be fined under this title, imprisoned not more than 5 years, or both. ``(C) Employers of individuals who possess select agents.-- Employers of individuals who will possess select agents in the course of their employment shall require such individuals, prior to being given access to select agents, to complete a form in which the individual affirms or denies the existence of each of the restrictions set forth in section 178(8) of this title. In the case of individuals already employed as of the date of enactment of this subsection who possess select agents in the course of their employment, employers shall, not later than 90 days after the date of enactment of this subsection, require those individuals to complete such a form. Such form shall be retained by the employer for not less than 5 years after the individual terminates his employment with that employer. ``(D) Employees.-- ``(i) Whoever willfully and knowingly falsifies or conceals a material fact or makes any materially false, fictitious, or fraudulent statement or representation in completing the form required under subparagraph (C) shall be fined under this title, imprisoned not more than 5 years, or both. ``(ii) The prohibition of subparagraph (A) does not apply to possession by a restricted individual of a select agent in the workplace of his employer if the basis for the prohibition relates solely to subparagraph (A) or (B)(i) of section 178(8) of this title and a determination is made to waive the prohibition in accordance with the rules and procedures established pursuant to subsection (f). ``(iii) The prohibition of subparagraph (A) does not apply to possession by a restricted individual of a select agent in the workplace of his employer if the basis for the prohibition relates solely to subparagraph (B)(ii) or (G) of section 178(8) of this title and is more than 5 years old (not counting time served while in custody), and a determination is made to waive the prohibition in accordance with the rules and procedures established pursuant to subsection (f). ``(iv) For the purposes of this subparagraph, the term `employer' means any person who is a registered entity or has filed the report required by section 175(e)(1) of this title and employs a restricted individual. ``(E) Certain nonpermanent resident aliens.--The prohibition of subparagraph (A) does not apply to possession by a restricted individual of a select agent if the basis for the prohibition relates solely to subparagraph (F) of section 178(8) of this title, and the restricted individual has received a waiver from the agency designated to carry out the functions of this subparagraph. The designated agency may issue a waiver if it determines, in consultation with the Attorney General, that a waiver is in the public interest. ``(f) Waivers of Restrictions on Possession of Select Agents in Course of Employment.--The agency designated to carry out this subsection, after consultation with appropriate agencies, with representatives of the scientific and medical community, and with other appropriate public and private entities and organizations (including consultation concerning employment practices in working with select agents), shall establish the rules and procedures governing waivers of the provisions of subsection (e)(6)(A) with [[Page S10423]] respect to possession of select agents by restricted individuals in the course of employment. Such rules and procedures shall address, among other matters as found appropriate by the designated agency, whether (or the circumstances under or the extent to which) the determination to grant a waiver shall be reserved to the Government, or may be made by the employer (either with or without consultation with the Government). ``(g) Reimbursement of Costs.-- ``(1) Convicted defendant.-- ``(A) Subsection (a), (c), or (e).--The court shall order any person convicted of an offense under subsection (a), (c), or (e) to reimburse the United States or any State for any expenses incurred by the United States or the State incident to the seizure, storage, handling, transportation, and destruction or other disposal of any property that was seized in connection with an investigation of the commission of such offense by that person. ``(B) Subsection (d)(1).--The court shall order any person convicted of an offense under subsection (d)(1) to reimburse the United States for any expenses incurred by the United States incident to the investigation of the commission by that person of such offense, including the cost of any response made by any Federal military or civilian agency to protect public health or safety. ``(2) Owner liability.--The owner or possessor of any property seized and forfeited under this chapter shall be liable to the United States for any expenses incurred incident to the seizure and forfeiture, including any expenses relating to the handling, storage, transportation, and destruction or other disposition of the seized and forfeited property. ``(3) Jointly and severally liable.--A person ordered to reimburse the United States for expenses under this chapter shall be jointly and severally liable for such expenses with each other person, if any, who is ordered under this subsection to reimburse the United States for the same expenses.''. (2) Technical clarifications.-- (A) Section 175.--Section 175(a) of title 18, United States Code, is amended by striking ``section'' and inserting ``subsection''. (B) Section 176.--Section 176(a)(1)(A) of title 18, United States Code, is amended by striking ``exists by reason of'' and inserting ``pertains to''. (3) Designation of responsible agencies.-- (A) In general.--Not later than 60 days after the date of enactment of this Act, the President shall designate-- (i) the agency responsible for prescribing the regulation required by section 175(e)(1) of title 18, United States Code; (ii) the agency responsible for granting the waivers under section 175(e)(6)(E) of title 18, United States Code; and (iii) the agency responsible for implementing the waiver provisions of section 175(f) of title 18, United States Code. (B) Regulations.--The agencies designated pursuant to subparagraph (A)-- (i) shall issue proposed rules not later than 90 days after the date of the President's designation; and (ii) shall issue final rules not later than 270 days after the date of enactment of this Act. (C) Inspections.--The agency designated pursuant to subparagraph (A)(i) may inspect the facilities of any person who files a report required by section 175(e)(1) of title 18, United States Code, to determine whether the person is handling the select agent in a safe manner, whether he is holding such agent for a prophylactic, protective, or other peaceful purpose, and whether the type and quantity being held are reasonable for that purpose. Any agency designated pursuant to subparagraph (A) may inspect any form required by section 175(e)(6)(C) of title 18, United States Code, and any documentation relating to a determination made pursuant to section 175(e)(6)(D) of that title. The designated agency shall endeavor to not interfere with the normal business operations of any such facility. (D) Freedom of information act exemption.--Any information provided to the Secretary of Health and Human Services pursuant to regulations issued under section 511(f) of the Antiterrorism and Effective Death Penalty Act of 1996 (42 C.F.R. 72.6) or to the designated agency under section 175(e)(1) of title 18, United States Code, shall not be disclosed under section 552 of title 5, United States Code. The Secretary or the designated agency may use and disclose such information to protect the public health, and shall also disclose any such relevant information to the Attorney General for use in any investigation or other proceeding to enforce any law relating to select agents or any other law. Any such information shall be made available to any committee or subcommittee of Congress with appropriate jurisdiction upon the written request of the Chairman or Ranking Member of such committee or subcommittee, except that no such committee or subcommittee, and no member and no staff member of such committee or subcommittee, shall disclose such information except as otherwise required or authorized by law. (E) Clarification of the scope of the select agent rule.-- Section 511 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1284) is amended-- (i) in each of subsections (a), (d), and (e)-- (I) by inserting ``and toxins'' after ``agents'' each place it appears; and (II) by inserting ``or toxin'' after ``agent'' each place it appears; and (ii) in subsection (g)(1), by striking ``the term `biological agent' has'' and inserting ``the terms `biological agent' and `toxin' have''. (F) Effective dates.-- (i) Subparagraph (D) shall take effect on the effective date for the final rule issued pursuant to section 511(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1284). (ii) The amendments made by subparagraph (E) shall take effect as if included in the enactment of section 511 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1284). (G) Transitional exemptions.-- (i) The prohibition created by section 175(e)(6)(A) of title 18, United States Code, shall not apply to the possession of a select agent in the workplace of an employer (as defined in section 175(e)(6)(D)(iv) of title 18, United States Code) by a restricted individual (as defined in subparagraph (A), (B), or (G) of section 178(8) of title 18, United States Code), until the effective date of the regulations issued to implement section 175(f) of title 18, United States Code, or 270 days after the date of enactment of this Act, whichever occurs earlier. (ii) The prohibition created by section 175(e)(6)(A) of title 18, United States Code, shall not apply to the possession of a select agent by a restricted individual (as defined in section 178(8)(F) of title 18, United States Code), until the effective date of the regulations issued to implement section 175(e)(6)(E) of title 18, United States Code, or 270 days after the enactment of this Act, whichever occurs earlier. (c) Definitional Amendments.-- (1) Section 178.--Section 178 of title 18, United States Code, is amended-- (A) in paragraph (1), by striking ``means any microorganism, virus, or infectious substance, or biological product that may be engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any such microorganism, virus, infectious substance, or biological product'' and inserting the following: ``means any microorganism (including, but not limited to, bacteria, viruses, fungi, rickettsiae, or protozoa), or infectious substance, or any naturally occurring, bioengineered or synthesized component of any such microorganism or infectious substance''; (B) in paragraph (2), by striking ``means the toxic material of plants, animals, microorganisms, viruses, fungi, or infectious substances, or a recombinant molecule, whatever its origin or method of production, including'' and inserting the following: ``means the toxic material or product of plants, animals, microorganisms (including, but not limited to, bacteria, viruses, fungi, rickettsiae, or protozoa), or infectious substances, or a recombinant or synthesized molecule, whatever their origin and method of production, and includes''; (C) in paragraph (4)-- (i) by striking ``recombinant molecule, or biological product that may be engineered as a result of biotechnology'' and inserting ``recombinant or synthesized molecule''; and (ii) by striking ``and'' at the end; (D) in paragraph (5), by striking the period at the end and inserting a semicolon; and (E) by adding at the end the following: ``(6) the term `select agent' means a biological agent or toxin that is on the list established by the Secretary of Health and Human Services pursuant to section 511(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1284) that is not exempted under part 72.6(h) of title 42, Code of Federal Regulations or appendix A to such part (or any successor to either such provision), except that the term does not include any such biological agent or toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source; ``(7) the term `registered entity' means a registered facility, or a certified laboratory exempted from registration, pursuant to the regulations promulgated by the Secretary of Health and Human Services under section 511(f) of the Antiterrorism and Effective Death Penalty Act of 1996 (42 C.F.R. 72.6(a), 72.6(h)); ``(8) the term `restricted individual' means an individual who-- ``(A) is under indictment for a crime punishable by imprisonment for a term exceeding 1 year; ``(B) has been convicted in any court of a crime-- ``(i) punishable by imprisonment for a term exceeding 1 year but not more than 5 years; or ``(ii) punishable by imprisonment for a term exceeding 5 years; ``(C) is a fugitive from justice; ``(D) is an unlawful user of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); ``(E) is an alien illegally or unlawfully in the United States; ``(F) is an alien (other than an alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State, pursuant to section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) (or its successor law), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or section 40(d) of the [[Page S10424]] Arms Export Control Act (22 U.S.C. 2780(d)), has made a determination, which remains in effect, that such country has repeatedly provided support for acts of international terrorism; or ``(G) has been discharged from the Armed Forces of the United States under dishonorable conditions; ``(9) the term `alien' has the same meaning as in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3)); ``(10) the term `lawfully admitted for permanent residence' has the same meaning as in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)); ``(11) the term `designated agency' means-- ``(A) except as provided in subparagraphs (B) and (C) of this paragraph, the agency designated by the President under section 2(b)(3)(A)(i) of the Dangerous Biological Agent and Toxin Control Act of 2000''; ``(B) for purposes of section 175(e)(6)(E) of this title, the agency designated by the President under section 2(b)(3)(A)(ii) of the Dangerous Biological Agent and Toxin Control Act of 2000; and ``(C) for purposes of section 175(f) of this title, the agency designated by the President under section 2(b)(3)(A)(iii) of the Dangerous Biological Agent and Toxin Control Act of 2000; and ``(12) the term `State' includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States, including any political subdivision thereof.''. (2) Section 2332a.--Section 2332a of title 18, United States Code, is amended-- (A) in subsection (a), by striking ``, including any biological agent, toxin, or vector (as those terms are defined in section 178)''; and (B) in subsection (c)(2)(C), by striking ``a disease organism'' and inserting ``any biological agent, toxin, or vector (as those terms are defined in section 178 of this title)''. ____________________