To amend the Antiterrorism and Effective Death Penalty Act of 1996 with respect to the responsibilities of the Secretary of Health and Human Services regarding biological agents and toxins, and to amend title 18, United States Code, with respect to such agents and toxins, to clarify the application of cable television system privacy requirements to new cable services, to strenghen security at certain nuclear facilities, and for other purposes.

October 3, 2001

Mr. TAUZIN (for himself and Mr. DINGELL) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To amend the Antiterrorism and Effective Death Penalty Act of 1996 with respect to the responsibilities of the Secretary of Health and Human Services regarding biological agents and toxins, and to amend title 18, United States Code, with respect to such agents and toxins, to clarify the application of cable television system privacy requirements to new cable services, to strenghen security at certain nuclear facilities, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

TITLE I--BIOTERRORISM PREVENTION

SEC. 101. EXPANSION OF BIOLOGICAL WEAPONS STATUTE.

(a) SELECT AGENTS-

(1) IN GENERAL- Section 175 of title 18, United States Code, is amended--

(A) by redesignating subsection (b) as subsection (c); and

(B) by inserting after subsection (a) the following subsection:

`(b) SELECT AGENTS-

`(1) UNSAFE HANDLING-

`(A) IN GENERAL- Whoever possesses, uses, or exercises control over a select agent in a manner constituting reckless disregard for the public health and safety, knowing the select agent to be a biological agent or toxin, shall be fined under this title, imprisoned for not more than one year, or both.

`(B) AGGRAVATED OFFENSE- Whoever, in the course of a violation of subparagraph (A), causes bodily injury to another shall be fined under this title, or imprisoned for not more than 10 years, or both; except that if death results from such violation, the person committing the violation shall be fined under this title, or imprisoned for any term of years or for life, or both.

`(2) UNREGISTERED FOR POSSESSION- Whoever knowingly possesses a biological agent or toxin where such agent or toxin is a select agent for which such person has not obtained a registration under section 511(f) of the Antiterrorism and Effective Death Penalty Act of 1996 shall be fined under this title, or imprisoned for not more than 5 years, or both.

`(3) TRANSFER TO UNREGISTERED PERSON- Whoever knowingly transfers a select agent to a person who has not obtained a registration under section 511(e) of the Antiterrorism and Effective Death Penalty Act of 1996 shall be fined under this title, or imprisoned for not more than 5 years, or both.

`(4) RESTRICTED PERSONS- Whoever is a restricted person and knowingly ships or transports a select agent in interstate or foreign commerce, or knowingly receives a select agent so shipped or transported, or knowingly possesses a select agent in or affecting interstate or foreign commerce, shall be fined under this title, or imprisoned for not more than 5 years, or both. The preceding sentence does not apply with respect to any duly authorized governmental activity under title V of the National Security Act of 1947.'.

(2) DEFINITIONS- Section 175 of title 18, United States Code, as amended by paragraph (1) of this subsection, is amended by amending subsection (c) to read as follows:

`(c) DEFINITIONS- As used in this section:

`(1) The terms `biological agent' and `toxin' have the meanings given such terms in section 178, except that, for purposes of subsection (b), such terms do not encompass any biological agent or toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, cultured, collected, or otherwise extracted from its natural source.

`(2) The term `bodily injury' has the meaning given such term in section 1365.

`(3) The term `for use as a weapon' includes the development, production, transfer, acquisition, retention, or possession of any biological agent, toxin, or delivery system, other than for prophylactic, protective, or other peaceful purposes.

`(4)(A) The term `restricted person' means a person--

`(i) who is described in section 922(g), as such section was in effect on the day before the effective date of this paragraph; or

`(ii) who is an alien, other than an alien lawfully admitted for permanent residence or an alien who under subparagraph (B) is considered not to be a restricted person.

`(B) For purposes of subparagraph (A)(ii):

`(i) An alien is considered not to be a restricted person if the alien is within a category designated under clause (ii) of this subparagraph.

`(ii) The Secretary of Health and Human Services, in consultation with the Attorney General, may designate categories of individuals who have--

`(I) nonimmigrant visas as defined in section 101(a)(26) of the Immigration and Nationality Act; and

`(II) expertise valuable to the United States regarding select agents.

`(5) The term `select agent' means a biological agent or toxin, as defined in paragraph (1), that--

`(A) is on the list that is in effect pursuant to section 511(d)(1) of the Antiterrorism

and Effective Death Penalty Act of 1996 (Public Law 104-132); and

`(B) has not been exempted from the applicability of regulations under section 511(e) of such Act.'.

(3) EFFECTIVE DATE REGARDING RESTRICTED PERSONS; REGULATIONS-

(A) EFFECTIVE DATE- Section 175(b)(4) of title 18, United States Code, as added by subsection (a)(1)(B) of this section, takes effect upon the expiration of the 90-day period beginning on the date of the enactment of this Act.

(B) REGULATIONS- Not later than 30 days after the date of the enactment of this Act, the Secretary of Health and Human Services shall determine whether the Secretary will designate any categories or individuals for purposes of section 175(c)(4)(B) of title 18, United States Code, as added by subsection (a)(1)(B) of this section. If the Secretary determines that one or more such categories will be designated, the Secretary shall promulgate an interim final rule for purposes of such section not later than 60 days after such date of enactment.

(4) CONFORMING AMENDMENT- Section 175(a) of title 18, United States Code, is amended in the second sentence by striking `under this section' and inserting `under this subsection'.

(b) AMENDMENTS TO ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996-

(1) POSSESSION AND USE-

(A) IN GENERAL- Section 511 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) is amended--

(i) by striking subsection (f);

(ii) by redesignating subsection (g) as subsection (i); and

(iii) by inserting after subsection (e) the following subsection:

`(f) POSSESSION AND USE OF LISTED BIOLOGICAL AGENTS AND TOXINS-

`(1) IN GENERAL- The Secretary shall by regulation provide for the establishment and enforcement of standards and procedures governing the possession and use of biological agents and toxins listed pursuant to subsection (d)(1) in order to protect the public health and safety, including safeguards to prevent access to such agents and toxins for use in domestic or international terrorism or for any other criminal purpose.

`(2) REGISTRATION- Regulations under paragraph (1) shall provide for registration requirements regarding the possession and use of biological agents and toxins listed pursuant to subsection (d)(1).'.

(B) REGULATIONS-

(i) DATE CERTAIN FOR PROMULGATION; EFFECTIVE DATE REGARDING CRIMINAL AND CIVIL PENALTIES- Not later than 30 days after the date of the enactment of this Act, the Secretary of Health and Human Services shall promulgate an interim final rule for carrying out section 511(f) of the Antiterrorism and Effective Death Penalty Act of 1996, as added by subparagraph (A) of this paragraph. Such interim final rule takes effect 60 days after the date on which such rule is promulgated, including for purposes of--

(I) section 175(b)(2) of title 18, United States Code (relating to criminal penalties), as added by subsection (a)(1)(B) of this section; and

(II) section 511(h) of the Antiterrorism and Effective Death Penalty Act of 1996 (relating to civil penalties), as added by paragraph (3) of this subsection.

(ii) SUBMISSION OF REGISTRATION APPLICATIONS- In the case of a person who, as of the date of the enactment of this Act, is in possession of a biological agent or toxin that is listed pursuant to section 511(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996, such person shall, in accordance with the interim final rule promulgated under clause (i), submit an application for a registration to possess such agent or toxin not later than 30 days after the date on which such rule is promulgated.

(2) DISCLOSURES OF INFORMATION-

(A) IN GENERAL- Section 511 of the Antiterrorism and Effective Death Penalty Act of 1996, as amended by paragraph (1) of this subsection, is amended by inserting after subsection (f) the following subsection:

`(g) DISCLOSURE OF INFORMATION-

`(1) IN GENERAL- Any information in the possession of any Federal agency that identifies a person, or the geographic location of a person, who is registered pursuant to regulations under this section (including regulations promulgated before the effective date of this subsection), and any site-specific information relating to the type, quantity, or identity of a biological agent or toxin listed pursuant to subsection (d)(1) or the site-specific security mechanisms in place to protect such agents and toxins, shall not be disclosed under section 552(a) of title 5, United States Code.

`(2) DISCLOSURES FOR PUBLIC HEALTH AND SAFETY; CONGRESS- Nothing in this section may be construed as preventing the head of any Federal agency--

`(A) from making disclosures of information described in paragraph (1) for purposes of protecting the public health and safety; or

`(B) from making disclosures of such information to any committee or subcommittee of the Congress with appropriate jurisdiction, upon request.'.

(B) EFFECTIVE DATE- The effective date for the amendment made by subparagraph (A)

shall be the same as 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).

(3) CIVIL PENALTIES- Section 511 of the Antiterrorism and Effective Death Penalty Act of 1996, as amended by paragraphs (1) and (2) of this subsection, is amended by inserting after subsection (g) the following subsection:

`(h) CIVIL PENALTY- Any person who violates a regulation under subsection (e) or (f) shall be subject to the United States for a civil penalty in an amount not exceeding $250,000 in the case of an individual and $500,000 in the case of any other person.'.

(4) CLARIFICATION OF SCOPE OF SELECT AGENT RULE; TERRORISM; RESPONSIBILITIES OF SECRETARY OF HEALTH AND HUMAN SERVICES-

(A) IN GENERAL- Section 511 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) is amended--

(i) in each of subsections (d) and (e)--

(I) by inserting `and toxins' after `agents' each place such term appears; and

(II) by inserting `or toxin' after `agent' each place such term appears; and

(ii) in subsection (i) (as redesignated by paragraph (1) of this subsection), in paragraph (1), by striking `the term `biological agent' has' and inserting `the terms `biological agent' and `toxin' have'.

(B) EFFECTIVE DATE- The effective date for the amendments made by subparagraph (A) shall be as if the amendments had been included in the enactment of section 511 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132).

(5) CONFORMING AMENDMENTS- Section 511 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) is amended--

(A) in subsection (d)(1)(A), by striking `shall, through regulations under subsection (f),' and inserting `shall by regulation';

(B) in subsection (e), in the matter preceding paragraph (1), by striking `shall, through regulations under subsection (f),' and inserting `shall by regulation';

(C) in subsection (d)--

(i) in the heading for the subsection, by striking `AGENTS' and inserting `AGENTS AND TOXINS'; and

(ii) in paragraph (1), in the heading for the paragraph, by striking `AGENTS' and inserting `AGENTS AND TOXINS'; and

(D) in subsection (e), in the heading for the subsection, by striking `AGENTS' and inserting `AGENTS AND TOXINS'.

(c) REPORT TO CONGRESS- Not later than one year after the date of the enactment of this Act, the Secretary of Health and Human Services, after consultation with other appropriate Federal agencies, shall submit to the Congress a report that--

(1) describes the extent to which there has been compliance by governmental and private entities with applicable regulations under section 511 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132), including the extent of compliance before the date of the enactment of this Act, and including the extent of compliance with regulations promulgated after such date of enactment;

(2) describes the future plans of the Secretary for determining compliance with regulations under such section 511 and for taking appropriate enforcement actions; and

(3) provides any recommendations of the Secretary for administrative or legislative initiatives regarding such section 511.

TITLE II--CABLE TELEVISION PRIVACY PROVISIONS

SEC. 201. SCOPE OF COMMUNICATIONS ACT PROVISION.

Section 631 of the Communications Act of 1934 (47 U.S.C. 551) is amended--

(1) in subsection (a)(1)(E), by striking `and (h)' and inserting `and (h)(2)';

(2) in subsection (a)(2), by striking `, other than subsection (h)';

(3) in subsection (c)(1), by inserting `and subsection (h)' after `paragraph (2)'; and

(4) by striking subsection (h) and inserting the following:

`(h)(1) Except as provided in paragraph (2), nothing in this section restricts, impairs, conditions, or otherwise affects the authority of a government entity to obtain personally identifiable information concerning a subscriber from a multichannel video programming distributor or other person pursuant to chapters 119, 121, and 206 of title 18, United States Code.

`(2) A government entity may obtain information collected and maintained by a multichannel video programming distributor or other person concerning the selection of video programming by a subscriber of any multichannel video programming distributor pursuant to a court order only if, in the court proceeding relevant to such court order--

`(A) such entity offers clear and convincing evidence that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case; and

`(B) the subject of the information is afforded the opportunity to appear and contest such entity's claim.'.

TITLE III--NUCLEAR FACILITY SECURITY

SEC. 301. CARRYING OF FIREARMS BY LICENSEE EMPLOYEES.

Section 161k. of the Atomic Energy Act of 1954 (42 U.S.C. 2201(k)) is amended to read as follows:

`k. authorize such of its members, officers, and employees as it deems necessary in the interest of the common defense and security to carry firearms while in the discharge of their official duties. The Commission may also authorize--

`(1) such of those employees of its contractors and subcontractors (at any tier) engaged in the protection of property under the jurisdiction of the United States located at facilities owned by or contracted to the United States or being transported to or from such facilities as it deems necessary in the interests of the common defense and security; and

`(2) such of those employees of persons licensed or certified by the Commission (including employees of contractors of licensees or certificate holders) engaged in the protection of property of (A) facilities owned or operated by a Commission licensee or certificate holder that are designated by the Commission, or (B) property of significance to the common defense and security located at facilities owned or operated by a Commission licensee or certificate holder or being transported to or from such facilities;

to carry firearms while in the discharge of their official duties. A person authorized to carry firearms under this subsection may, while in the performance of, and in connection with, official duties, make arrests without warrant for any offense against the United States committed in that person's presence or for any felony cognizable under the laws of the United States if that person has reasonable grounds to believe that the individual to be arrested has committed or is committing such felony. An employee of a contractor or subcontractor or of a Commission licensee or certificate holder (or a contractor of a licensee or certificate holder) authorized to carry firearms under this subsection may make such arrests only when the individual to be arrested is within, or in direct flight from, the area of such offense. A person granted authority to make arrests by this subsection may exercise that authority only in the enforcement of laws regarding the property of the United States in the custody of the Department of Energy, the Nuclear Regulatory Commission, or a contractor of the Department of Energy or Nuclear Regulatory Commission or of a licensee or certificate holder of the Commission, laws applicable to facilities owned or operated by a Commission licensee or certificate holder that are designated by the Commission pursuant to this subsection and property of significance to the common defense and security that is in the custody of a licensee or certificate holder or a contractor of a licensee or certificate holder of the Commission, or any provision of this Act that may subject an offender to a fine, imprisonment, or both. The arrest authority conferred by this subsection is in addition to any arrest authority under other laws. The Secretary and the Commission, with the approval of the Attorney General, shall issue guidelines to implement this subsection;'.

SEC. 302. UNAUTHORIZED INTRODUCTION OF DANGEROUS WEAPONS.

Section 229a. of the Atomic Energy Act of 1954 (42 U.S.C. 2278a(a)) is amended by adding after `custody of the Commission' the following: `or subject to its licensing authority or to certification by the Commission under this Act or any other Act'.

SEC. 303. SABOTAGE OF NUCLEAR FACILITIES OR FUEL.

Section 236a. of the Atomic Energy Act of 1954 (42 U.S.C. 2284(a)) is amended to read as follows:

`a. Any person who intentionally and willfully destroys or causes physical damage to, or who intentionally and willfully attempts to destroy or cause physical damage to--

`(1) any production facility or utilization facility licensed under this Act;

`(2) any nuclear waste storage, treatment, or disposal facility licensed under this Act;

`(3) any nuclear fuel for a utilization facility licensed under this Act or any spent nuclear fuel from such a facility;

`(4) any uranium enrichment or nuclear fuel fabrication facility licensed or certified by the Nuclear Regulatory Commission; or

`(5) any production, utilization, waste storage, waste treatment, waste disposal, uranium enrichment, or nuclear fuel fabrication facility subject to licensing or certification under this Act during its construction where the destruction or damage caused or attempted to be caused could affect public health and safety during the operation of the facility,

shall be fined not more than $1,000,000 or imprisoned for up to life in prison without parole, or both.'.

SEC. 304. ASSESSMENT OF VULNERABILITIES.

The Nuclear Regulatory Commission shall conduct a study to assess the vulnerability of nuclear facilities certified by the Nuclear Regulatory Commission to potential terrorist attacks. The study shall include--

(1) an assessment of the design basis threat;

(2) an assessment of potential vulnerability of various classes of such facilities;

(3) an identification of important protection measures for both the near term and long term;

(4) an assessment of physical, cyber, biochemical, and other terrorist threats; and

(5) recommendations for additional studies, research and development, testing, and protections required to address the threats identified.

An initial report identifying immediate concerns and protection measures shall be transmitted to the Congress not later than 90 days after the date of the enactment of this Act. A final report on the study shall be transmitted to the Congress not later than 270 days after the date of the enactment of this Act.

SEC. 305. DESIGN BASIS THREAT.

(a) AMENDMENT- Chapter 14 of the Atomic Energy Act of 1954 (42 U.S.C. 2201-2210b) is amended by adding at the end the following new section:

`SEC. 170C. DESIGN BASIS THREAT-

`a. The Nuclear Regulatory Commission, not later than 60 days after the date of the enactment of this section, after consultation with the Secretary of Defense, the Director of Central Intelligence, the Director of the Federal Bureau of Investigation, the National Security Advisor, the Director of Homeland Security (or any successor official), and any other appropriate Federal, State, or nongovernmental entities, shall commence a rulemaking to consider changes to the design basis threat for facilities licensed by the Commission under this Act. Within 1 year after the date of the enactment of this section, the Commission shall issue a final rule revising the design basis threat and associated regulations.

`b. Regulations issued under this section shall take into account--

`(1) the events of September 11, 2001;

`(2) the potential for attack on facilities by multiple coordinated teams totaling in the aggregate at least 20 individuals;

`(3) the potential for assistance in an attack from several persons employed at the facility;

`(4) the potential for suicide attacks;

`(5) water-based and air-based threats;

`(6) the potential use of explosive devices of considerable size and other modern weaponry;

`(7) the potential for attacks by persons with a sophisticated knowledge of facility operations;

`(8) the threat of fires, especially fires of long duration; and

`(9) protection of spent fuel storage pools and dry cask storage, including after reactor closure.

`c. Regulations issued under this section shall establish requirements for licensees relating to construction, operation, security procedures, and emergency response, and shall require conforming amendments to existing licenses.

`d. Regulations issued under this section shall require armed escorts for all spent fuel shipments, capable of repelling attacks by a large number of attackers working as several coordinated teams and using sophisticated techniques and equipment.

`e. (1) Regulations issued under this section shall include the establishment of an Operational Safeguards Response Evaluation program, whose Director shall report directly to the Nuclear Regulatory Commission, which shall ensure that the operational safeguards response of each facility described in paragraph (2) is tested at least once every 2 years to determine whether the design basis threat factors identified in regulations issued under this section have been adequately addressed.

`(2) Facilities subject to testing under paragraph (1) include commercial nuclear powerplants, research reactors, spent fuel storage facilities and associated support facilities and equipment, and any other licensed facility the Nuclear Regulatory Commission considers appropriate.

`f. Regulations issued under this section shall be reviewed and revised as appropriate at least once every 5 years.'.

(b) TABLE OF SECTIONS AMENDMENT- The table of sections for chapter 14 of the Atomic Energy Act of 1954 is amended by adding at the end the following new item:

`Sec. 170C. Design basis threat.'.

END