[Congressional Record Volume 167, Number 194 (Thursday, November 4, 2021)]
[Senate]
[Pages S7975-S7977]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 4466. Mr. SCHATZ submitted an amendment intended to be proposed to 
amendment SA 3867 submitted by Mr. Reed and intended to be proposed to 
the bill H.R. 4350, to authorize appropriations for fiscal year 2022 
for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes; which was ordered to lie on the table; as follows:

        At the appropriate place, insert the following:

     SEC. __. REFORM AND OVERSIGHT OF DEPARTMENT OF DEFENSE 
                   TRANSFER OF PERSONAL PROPERTY TO LAW 
                   ENFORCEMENT AGENCIES AND OTHER ENTITIES.

       (a) In General.--Section 2576a of title 10, United States 
     Code, is amended--
       (1) in subsection (a)--
       (A) in paragraph (1), in the matter preceding subparagraph 
     (A), by striking ``subsection (b)'' and inserting ``the 
     provisions of this section''; and
       (B) by adding at the end the following:
       ``(3) The Secretary may transfer non-controlled property to 
     nonprofit organizations involved in humanitarian response or 
     first responder activities.'';
       (2) in subsection (b)--
       (A) in paragraph (5), by striking ``and'' at the end;
       (B) in paragraph (6), by striking the period and inserting 
     a semicolon; and
       (C) by adding at the end the following new paragraphs:
       ``(7) the recipient, on an annual basis, certifies that if 
     the recipient determines that the property is surplus to the 
     needs of the recipient, the recipient will return the 
     property to the Department of Defense;
       ``(8) the recipient submits to the Department of Defense a 
     description of how the recipient expects to use the property;
       ``(9) with respect to a recipient that is not a Federal 
     agency, the recipient certifies to the Department of Defense 
     that the recipient notified the local community of the 
     request for property under this section by--
       ``(A) publishing a notice of such request on a publicly 
     accessible internet website;
       ``(B) posting such notice at several prominent locations in 
     the jurisdiction of the recipient; and
       ``(C) ensuring that such notices were available to the 
     local community for a period of not less than 30 days;
       ``(10) with respect to a recipient that is not a Federal 
     agency, the recipient submits to the Department of Defense a 
     description of the training courses or certifications 
     required for use of transferred property;
       ``(11) with respect to a recipient that is a local law 
     enforcement agency, the recipient has received the approval 
     of the city council or other local governing body to acquire 
     the property sought under this section; and
       ``(12) with respect to a recipient that is a State law 
     enforcement agency, the recipient has received the approval 
     of the appropriate state governing body to acquire the 
     property sought under this section.'';
       (3) in subsection (e), by adding at the end the following:
       ``(5) Grenades launchers.
       ``(6) Explosives.
       ``(7) Firearms of .50 caliber or higher and ammunition of 
     0.5 caliber or higher.
       ``(8) Asphyxiating gases, including those comprised of 
     lachrymatory agents, and analogous liquids, materials or 
     devices.
       ``(9) Items in the Federal Supply Class of banned items.'';
       (4) by striking subsections (f) and (g) and inserting the 
     following:
       ``(f) Limitations on Transfers.--(1) The transfers 
     prohibited under subsection (e) shall also apply with respect 
     to the transfer of previously transferred property of the 
     Department of Defense from a Federal or State agency to 
     another such agency.
       ``(2) The Secretary shall require that equipment 
     transferred under this section shall be returned upon a 
     finding that the equipment has been used to conduct actions 
     against residents of the United States that infringe upon the 
     rights of the residents under the First Amendment to the 
     Constitution of the United States to assemble peaceably or to 
     petition the Government for redress of grievances.
       ``(3) The Secretary shall prohibit the transfer of 
     equipment to a Federal or State agency for a period of 5 
     years upon a finding that equipment transferred under this 
     section to the Federal or State agency has been used to 
     conduct actions against United States residents that infringe 
     upon the rights of the residents under the First Amendment to 
     the Constitution of the United States to assemble peaceably 
     or to petition the Government for redress of grievances.
       ``(g) Annual Certification Accounting for Transferred 
     Property.--(1) For each fiscal year, the Secretary shall 
     submit to Congress certification in writing that each Federal 
     or State agency to which the Secretary has transferred 
     personal property under this section--
       ``(A) has provided to the Secretary documentation 
     accounting for all controlled property, including arms and 
     ammunition, that the Secretary has transferred to the agency, 
     including any item described in subsection (e) so transferred 
     before the date of the enactment of the National Defense 
     Authorization Act for Fiscal Year 2022; and
       ``(B) with respect to a non-Federal agency, carried out 
     each of paragraphs (5) through (9) of subsection (b).
       ``(2) If the Secretary cannot provide a certification under 
     paragraph (1) for a Federal or State agency, the Secretary 
     may not transfer additional property to that agency under 
     this section.
       ``(h) Annual Report on Excess Property.--The Secretary 
     shall submit to Congress each year, before making any 
     personal property available for transfer under this section 
     in that year, report setting forth a description of the 
     property to be transferred, together with a certification 
     that the transfer of the property would not violate this 
     section or any other provision of law.
       ``(i) Conditions for Extension of Program.--Notwithstanding 
     any other provision of law, amounts authorized to be 
     appropriated or otherwise made available for any fiscal year 
     may not be obligated or expended to carry out this section 
     unless the Secretary submits to the appropriate committees of 
     Congress a certification, for the preceding fiscal year, 
     that--
       ``(1) each recipient agency that has received personal 
     property under this section has--
       ``(A) demonstrated full and complete accountability for all 
     such property, in accordance with paragraph (2) or (3), as 
     applicable; or
       ``(B) been suspended or terminated from the program 
     pursuant to paragraph (4);
       ``(2) with respect to each non-Federal agency that has 
     received property under this section, the State Coordinator 
     responsible for each such agency has verified that the State 
     Coordinator or an agent of the State Coordinator has 
     conducted an in-person inventory of the property transferred 
     to the agency and that all such property was accounted for 
     during the inventory or that the agency has been suspended or 
     terminated from the program pursuant to paragraph (4);
       ``(3) with respect to each Federal agency that has received 
     property under this section, the Secretary or an agent of the 
     Secretary has conducted an in-person inventory of the 
     property transferred to the agency and that all such property 
     was accounted for during the inventory or that the agency has 
     been suspended or terminated from the program pursuant to 
     paragraph (4);
       ``(4) the eligibility of any agency that has received 
     property under this section for which all of such property 
     was not accounted for during an inventory described in 
     paragraph (2) or (3), as applicable, to receive property 
     transferred under this section has been suspended or 
     terminated;
       ``(5) each State Coordinator has certified, for each non-
     Federal agency located in the State for which the State 
     Coordinator is responsible that--
       ``(A) the agency has complied with all requirements under 
     this section; or
       ``(B) the eligibility of the agency to receive property 
     transferred under this section has been suspended or 
     terminated; and
       ``(6) the Secretary has certified, for each Federal agency 
     that has received property under this section that--
       ``(A) the agency has complied with all requirements under 
     this section; or
       ``(B) the eligibility of the agency to receive property 
     transferred under this section has been suspended or 
     terminated.
       ``(j) Approval by Law Required for Transfer of Property Not 
     Previously Transferrable.--(1) In the event the Secretary 
     proposes to make available for transfer under this section 
     any personal property of the Department of Defense not 
     previously made available for transfer under this section, 
     the Secretary shall submit to the appropriate committees of 
     Congress a report setting forth the following:
       ``(A) A description of the property proposed to be made 
     available for transfer.
       ``(B) A description of the conditions, if any, to be 
     imposed on use of the property after transfer.
       ``(C) A certification that transfer of the property would 
     not violate a provision of this section or any other 
     provision of law.
       ``(2) The Secretary may not transfer any property covered 
     by a report under this subsection unless authorized by a law 
     enacted by Congress after the date of the receipt of the 
     report by Congress.
       ``(k) Annual Certification Accounting for Transferred 
     Property.--(1) The Secretary shall submit to the appropriate 
     committees of Congress each year a certification in writing 
     that each recipient to which the Secretary has transferred 
     personal property

[[Page S7976]]

     under this section during the preceding fiscal year--
       ``(A) has provided to the Secretary documentation 
     accounting for all property the Secretary has previously 
     transferred to such recipient under this section; and
       ``(B) has complied with paragraphs (5) and (6) of 
     subsection (b) with respect to the property so transferred 
     during such fiscal year.
       ``(2) If the Secretary cannot provide a certification under 
     paragraph (1) for a recipient, the Secretary may not transfer 
     additional property to such recipient under this section, 
     effective as of the date on which the Secretary would 
     otherwise make the certification under this subsection, and 
     such recipient shall be suspended or terminated from further 
     receipt of property under this section.
       ``(l) Quarterly Reports on Use of Controlled Equipment.--
     Not later than 30 days after the last day of a fiscal 
     quarter, the Secretary shall submit to Congress a report on 
     any uses of controlled property transferred under this 
     section during that fiscal quarter.
       ``(m) Reports to Congress.--Not later than 30 days after 
     the last day of a fiscal year, the Secretary shall submit to 
     Congress a report on the following for the preceding fiscal 
     year:
       ``(1) The percentage of equipment lost by recipients of 
     property transferred under this section, including specific 
     information about the type of property lost, the monetary 
     value of such property, and the recipient that lost the 
     property.
       ``(2) The transfer of any new (condition code A) property 
     transferred under this section, including specific 
     information about the type of property, the recipient of the 
     property, the monetary value of each item of the property, 
     and the total monetary value of all such property transferred 
     during the fiscal year.
       ``(n) Publicly Accessible Website on Transferred Controlled 
     Property.--(1) The Secretary shall create and maintain a 
     publicly available internet website that provides information 
     on the controlled property transferred under this section and 
     the recipients of such property.
       ``(2) The contents of the internet website required under 
     paragraph (1) shall include all publicly accessible 
     unclassified information pertaining to the request, transfer, 
     denial, and repossession of controlled property under this 
     section, including--
       ``(A) a current inventory of all controlled property 
     transferred to Federal and State agencies under this section, 
     listed by--
       ``(i) the name of the Federal agency, or the State, county, 
     and recipient agency;
       ``(ii) the item name, item type, and item model;
       ``(iii) the date on which such property was transferred; 
     and
       ``(iv) the current status of such item;
       ``(B) all pending requests for transfers of controlled 
     property under this section, including the information 
     submitted by the Federal and State agencies requesting such 
     transfers;
       ``(C) a list of each agency suspended or terminated from 
     further receipt of property under this section, including any 
     State, county, or local agency, and the reason for and 
     duration of such suspension or termination; and
       ``(D) all reports required to be submitted to the Secretary 
     under this section by Federal and State agencies that receive 
     controlled property under this section.
       ``(3) The Secretary shall update on a quarterly basis the 
     contents of the internet website required under paragraph 
     (1), on which the contents of the Internet website described 
     in paragraph (2) shall be made publicly available in a 
     searchable format.
       ``(o) Definitions.--In this section:
       ``(1) The term `appropriate committees of Congress' means--
       ``(A) the Committee on Armed Services and the Committee on 
     Homeland Security and Governmental Affairs of the Senate; and
       ``(B) the Committee on Armed Services and the Committee on 
     Oversight and Government Reform of the House of 
     Representatives.
       ``(2) The term `agent of a State Coordinator' means any 
     individual to whom a State Coordinator formally delegates 
     responsibilities for the duties of the State Coordinator to 
     conduct inventories described in subsection (i)(2).
       ``(3) The term `controlled property' means any item 
     assigned a demilitarization code of B, C, D, E, G, or Q under 
     Department of Defense Manual 4160.21-M, `Defense Materiel 
     Disposition Manual', or any successor document.
       ``(4) The term `State Coordinator', with respect to a 
     State, means the individual appointed by the governor of the 
     State to maintain property accountability records and oversee 
     property use by the State.''.
       (b) Effective Date.--The amendments made by this subsection 
     shall take effect on the date of the enactment of this Act.
       (c) Interagency Law Enforcement Equipment Working Group.--
       (1) In general.--Not later than 60 days after the date of 
     enactment of this Act, the Secretary of Defense shall 
     establish an interagency Law Enforcement Equipment Working 
     Group (referred to in this subsection as the ``Working 
     Group'') to support oversight and policy development 
     functions for controlled equipment programs.
       (2) Purpose.--The Working Group shall--
       (A) examine and evaluate the Controlled and Prohibited 
     Equipment Lists for possible additions or deletions;
       (B) track law enforcement agency controlled equipment 
     inventory;
       (C) ensure Government-wide criteria to evaluate requests 
     for controlled equipment;
       (D) ensure uniform standards for compliance reviews;
       (E) harmonize Federal programs to ensure the programs have 
     consistent and transparent policies with respect to the 
     acquisition of controlled equipment by law enforcement 
     agencies;
       (F) require after-action analysis reports for significant 
     incidents involving Federally provided or Federally funded 
     controlled equipment;
       (G) develop policies to ensure that law enforcement 
     agencies abide by any limitations or affirmative obligations 
     imposed on the acquisition of controlled equipment or receipt 
     of funds to purchase controlled equipment from the Federal 
     Government and the obligations resulting from receipt of 
     Federal financial assistance;
       (H) require State and local governing body to review and 
     authorize a law enforcement agency's request for or 
     acquisition of controlled equipment;
       (I) require that law enforcement agencies participating in 
     Federal controlled equipment programs receive necessary 
     training regarding appropriate use of controlled equipment 
     and the implementation of obligations resulting from receipt 
     of Federal financial assistance, including training on the 
     protection of civil rights and civil liberties;
       (J) provide uniform standards for suspending law 
     enforcement agencies from Federal controlled equipment 
     programs for specified violations of law, including civil 
     rights laws, and ensuring those standards are implemented 
     consistently across agencies; and
       (K) create a process to monitor the sale or transfer of 
     controlled equipment from the Federal Government or 
     controlled equipment purchased with funds from the Federal 
     Government by law enforcement agencies to third parties.
       (3) Composition.--
       (A) In general.--The Working Group shall be co-chaired by 
     the Secretary of Defense, the Attorney General, and the 
     Secretary of Homeland Security.
       (B) Membership.--The Working Group shall be comprised of--
       (i) representatives of interested parties, who are not 
     Federal employees, including appropriate State, local, and 
     Tribal officials, law enforcement organizations, civil rights 
     and civil liberties organizations, and academics; and
       (ii) the heads of such other agencies and offices as the 
     Co-Chairs may, from time to time, designate.
       (C) Designation.--A member of the Working Group described 
     in subparagraph (A) or in subparagraph (B)(ii) may designate 
     a senior-level official from the agency represented by the 
     member to perform the day-to-day Working Group functions of 
     the member, if the designated official is a full-time officer 
     or employee of the Federal Government.
       (D) Subgroups.--At the direction of the Co-Chairs, the 
     Working Group may establish subgroups consisting exclusively 
     of Working Group members or their designees under this 
     subsection, as appropriate.
       (E) Executive director.--
       (i) In general.--There shall be an Executive Director of 
     the Working Group, to be appointed by the Attorney General.
       (ii) Responsibilities.--The Executive Director appointed 
     under clause (i) shall determine the agenda of the Working 
     Group, convene regular meetings, and supervise the work of 
     the Working Group under the direction of the Co-Chairs.
       (iii) Funding.--

       (I) In general.--To the extent permitted by law and using 
     amounts already appropriated, the Secretary shall fund, and 
     provide administrative support for, the Working Group
       (II) Requirement.--Each agency shall bear its own expenses 
     for participating in the Working Group.

       (F) Coordination with the department of homeland 
     security.--In general, the Working Group shall coordinate 
     with the Homeland Security Advisory Council of the Department 
     of Homeland Security to identify areas of overlap or 
     potential national preparedness implications of further 
     changes to Federal controlled equipment programs.
       (4) Rule of construction.--Nothing in this subsection shall 
     be construed as creating any right or benefit, substantive or 
     procedural, enforceable at law or in equity by any party 
     against the United States, its departments, agencies, or 
     entities, its officers, employees, or agents, or any other 
     person.
       (d) Report on Department of Defense Transfer of Personal 
     Property to Law Enforcement Agencies and Other Entities.--
       (1) Appropriate recipients defined.--In this subsection, 
     the term ``appropriate recipients'' means--
       (A) the Committee on Armed Services of the Senate;
       (B) the Committee on Armed Services of the House of 
     Representatives;
       (C) the Committee on Appropriations of the Senate; and
       (D) the Committee on Appropriations of the House of 
     Representatives.
       (2) Report.--Not later than 2 years after the date of 
     enactment of this Act, the Secretary of Defense, in 
     consultation with the Attorney General and the Secretary of 
     Homeland Security, shall submit a report to the appropriate 
     recipients.

[[Page S7977]]

       (3) Contents.--The report required under paragraph (2) 
     shall contain--
       (A) a review of the efficacy of the surplus equipment 
     transfer program; and
       (B) a determination of whether to recommend continuing or 
     ending the program in the future.
                                 ______