[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[Senate]
[Pages S5917-S5919]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 6395. Mr. SCHATZ submitted an amendment intended to be proposed to 
amendment SA 5499 submitted by Mr. Reed (for himself and Mr. Inhofe) 
and intended to be proposed to the bill H.R. 7900, to authorize 
appropriations for fiscal year 2023 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 at the end and 
     inserting ``, and provides a description of the training 
     courses;''; and
       (C) by adding at the end the following:
       ``(7) the recipient, on an annual basis, certifies that if 
     the recipient determines that any controlled property 
     received is surplus to the needs of the recipient, the 
     recipient will return the property to the Department of 
     Defense;
       ``(8) the recipient, when requisitioning property, submits 
     to the Department of Defense a justification for why the 
     recipient needs the property and a description of the 
     expected uses of the property;
       ``(9) with respect to a recipient that is not a Federal 
     agency, the recipient certifies annually to the Department of 
     Defense that the recipient has notified the local community 
     of its participation in the program under this section by--
       ``(A) publishing a notice of such participation on a 
     publicly accessible internet website, including information 
     on how members of the local community can track property 
     requested or received by the recipient on the website of the 
     Department of Defense;
       ``(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 a local law 
     enforcement agency, the recipient publishes a notice on a 
     publicly accessible internet website and at several prominent 
     locations in the jurisdiction of the recipient of the 
     approval of the city council or other local governing body to 
     acquire the property sought under this section; and
       ``(11) with respect to a recipient that is a State law 
     enforcement agency, the recipient publishes a notice on a 
     publicly accessible internet website and at several prominent 
     locations in the jurisdiction of the recipient of 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) Grenade launchers.
       ``(6) Explosives (unless used for explosive detection 
     canine training).
       ``(7) Firearms of .50 caliber or higher.
       ``(8) Ammunition of 0.5 caliber or higher.
       ``(9) Asphyxiating gases, including those comprised of 
     lachrymatory agents, and analogous liquids, materials, or 
     devices.
       ``(10) Silencers.
       ``(11) Long-range acoustic devices.''; and
       (4) by striking subsections (f) and (g) and inserting the 
     following:
       ``(f) Limitations on Transfers.--(1) The prohibitions 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) Each year, the Attorney General shall--
       ``(A) review all recipients of transferred equipment under 
     this section; and
       ``(B) make recommendations to the Secretary on recipients 
     that should be restricted, suspended, or terminated from the 
     program under this section based on the findings of the 
     Attorney General, including a finding that a recipient used 
     equipment to conduct actions against individuals that 
     infringe upon their rights under the First Amendment to the 
     Constitution of the United States.
       ``(3) In the case of a recipient that is under 
     investigation for a violation of, or is subject to a consent 
     decree authorized by, section 210401 of the Violent Crime 
     Control and Law Enforcement Act of 1994 (34 U.S.C. 12601), 
     the Attorney General shall provide a recommendation to the 
     Secretary with respect to the continued participation of the 
     recipient in the program under this section.
       ``(g) Annual Certification Accounting for Transferred 
     Property.--(1) For each fiscal year, the Secretary shall 
     submit to Congress certification in writing that each State 
     or local 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, that 
     the Secretary has transferred to the agency, including any 
     item described in subsection (e) so transferred before the 
     date of enactment of the William M. (Mac) Thornberry National 
     Defense Authorization Act for Fiscal Year 2021 (Public Law 
     116-283; 134 Stat. 3388); and
       ``(B) has carried out each of paragraphs (5) through (9) of 
     subsection (b).
       ``(2) If the Secretary cannot provide a certification under 
     paragraph (1) for a State or local agency, the Secretary may 
     not transfer additional property to that agency under this 
     section.
       ``(h) 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 non-Federal 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
       ``(B) been suspended or terminated from the program 
     pursuant to paragraph (3);
       ``(2) the State Coordinator responsible for each non-
     Federal agency that has received property under this section 
     has verified that--
       ``(A) the State Coordinator or an agent of the State 
     Coordinator has conducted an inventory of the property 
     transferred to the agency; and
       ``(B)(i) all property transferred to the agency was 
     accounted for during the inventory described in subparagraph 
     (A); or

[[Page S5918]]

       ``(ii) the agency has been suspended or terminated from the 
     program pursuant to paragraph (3);
       ``(3) with respect to any non-Federal 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), the eligibility of the agency to receive 
     property transferred under this section has been suspended or 
     terminated; and
       ``(4) 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.
       ``(i) 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 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.
       ``(j) 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 items under this section classified 
     under Supply Condition Code A, including specific information 
     about the type of property, the recipient of the property, 
     the original acquisition value of each item of the property, 
     and the total original acquisition of all such property 
     transferred during the fiscal year.
       ``(k) Publicly Accessible Website on Transferred Controlled 
     Property.--(1) The Secretary shall create, maintain, and 
     update on a quarterly basis a publicly available internet 
     website that provides information, in a searchable format, 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.
       ``(l) 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 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 (h)(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) Interagency Law Enforcement Equipment Working Group.--
       (1) In general.--Not later than 60 days after the date of 
     enactment of this Act, the Attorney General, in coordination 
     with the Secretary of Defense and the Secretary of Homeland 
     Security, 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 a 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 Attorney General, the Secretary of Defense, 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 Federal 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 (B)(ii) may designate a senior-level 
     official from the agency or office 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 Attorney General 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.
       (c) 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;

[[Page S5919]]

       (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.
       (3) Contents.--The report required under paragraph (2) 
     shall contain--
       (A) a review of the efficacy of the surplus equipment 
     transfer program under section 1033 of title 10, United 
     States Code; and
       (B) a determination of whether to recommend continuing or 
     ending the program described in subparagraph (A) in the 
     future.
                                 ______