[House Report 116-141]
[From the U.S. Government Publishing Office]


116th Congress   }                                    {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                    {       116-141

======================================================================



 
EFFECTIVE PROSECUTION OF POSSESSION OF BIOLOGICAL TOXINS AND AGENTS ACT 
                                OF 2019

                                _______
                                

  July 9, 2019.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Nadler, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1986]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1986) to amend section 175b of title 18, United 
States Code, to correct a scrivener's error, having considered 
the same, report favorably thereon without amendment and 
recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     5
Duplication of Federal Programs..................................     6
Performance Goals and Objectives.................................     6
Advisory on Earmarks.............................................     6
Section-by-Section Analysis......................................     6
Changes in Existing Law Made by the Bill, as Reported............     6

                          Purpose and Summary

    H.R. 1986, the ``Effective Prosecution of Biological Toxins 
and Agents Act of 2019,'' is designed to correct a 
``scrivener's error'' in section 175b of title 18 of the United 
States Code to ensure that the statute prohibits the shipment, 
transportation, possession or receipt of the complete list of 
biological toxins and agents that Congress intended to 
prohibit. The legislation also reorganizes the physical 
structure of section 175b by adding certain titles and 
subtitles and adjusting margins to make clear precisely what 
conduct and which toxins and agents are covered by the statute, 
as well as the penalty associated with contravening the 
statute.

                Background and Need for the Legislation


                               BACKGROUND

    Section 175 of title 18 of the United States Code codified 
the ``Biological Weapons Anti-Terrorism Act of 1989.''\1\ That 
Act was enacted to attach criminal penalties to the 
development, production, stockpiling, transfer, acquisition, 
retention or possession of any biological agents, toxins, or 
delivery systems for use as a weapon. Section 175b, which H.R. 
1986 would amend, was added to the Code in the aftermath of the 
September 11, 2001 terrorist attacks as part of the ``Uniting 
and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act of 2001'' (USA 
PATRIOT Act).\2\ In general, section 175b makes it a crime, 
with penalties of up to ten years of imprisonment, for certain 
``restricted persons'' or ``unregistered persons'' to possess 
any biological agent or toxin listed as a ``select agent'' by 
the Secretary of Health and Human Services (``HHS'').\3\ As 
originally enacted, section 175b specified that the select 
agents targeted by the legislation were set forth ``in 
subsection (j) or section 72.6 of title 42, Code of Federal 
Regulations [(``CFR'')].''\4\
---------------------------------------------------------------------------
    \1\Pub. L. No. 101-298, 104 Stat. 201 (1990).
    \2\Pub. L. No. 107-56, 115 Stat. 272 (2001).
    \3\18 U.S.C. Sec. 175b.
    \4\Pub. L. No. 107-56, Sec. 817, 115 Stat. 385-86 (2001); see also 
42 C.F.R. Sec. 72.6(j).
---------------------------------------------------------------------------
    In 2002, Congress amended section 175b to include 
subsection (c)(1), which criminalized the unregistered 
possession of select agents by any person.\5\ Congress also 
revised the list of agents and toxins prohibited by statute by 
shifting its reference from 42 C.F.R. Sec. 72.6(j) to 
``Appendix A of part 72 of Title 42'' of the CFR,\6\ which 
consisted of a list of select agents HHS identified pursuant to 
new requirements under the Public Health Service Act (42 U.S.C. 
Sec. 262a).\7\
---------------------------------------------------------------------------
    \5\Pub. L. No. 107-188, Sec. 231, 116 Stat. 660 (2002).
    \6\Id. at 661.
    \7\See July 1, 1944, c. 373, Title III, Sec. 351A, as added Pub. L. 
No. 107-188, tit. II, Sec. 201(a), 116 Stat. 637 (2002); amended Pub. 
L. No. 107-296, tit. XVII, Sec. 1709(a), 116 Stat. 2318 (2002).
---------------------------------------------------------------------------
    In 2004, as part of the ``Intelligence Reform and Terrorism 
Prevention Act,'' Congress changed the reference from 
``Appendix A of part 72'' to ``Part 73,'' a new section of 
HHS's regulations governing select agents and toxins.\8\ This 
amendment changed the statute to prohibit possession of ``a 
non-overlap or overlap select biological agent or toxin in 
sections 73.4 and 73.5 of Title 42'' of the CFR.\9\ Three 
months later, however, HHS re-formatted its regulations, which 
resulted in its list of select agents and toxins being moved to 
a section of the CFR (section 73.3) that is not referenced in 
18 U.S.C. 175b.\10\
---------------------------------------------------------------------------
    \8\See Pub. L. No. 108-458, Sec. 6802(d), 188 Stat. 3638 (2002).
    \9\See id.
    \10\See Possession, Use, and Transfer of Select Agents and Toxins, 
70 Fed. Reg. 13294-01 (Mar. 18, 2005).
---------------------------------------------------------------------------
    The HHS re-formatting had the unintended consequence of 
leaving some biological agents and toxins off the prohibited 
list. Among these, is ricin, which is a poison found in castor 
beans.\11\ Ricin is inexpensive, easy to make, and very toxic--
it can kill by just by inhalation.\12\ This result is clearly 
not what Congress intended.
---------------------------------------------------------------------------
    \11\Facts About Ricin, Ctr. for Disease Control & Prevention, 
Emergency Preparedness and Response, available at https://
emergency.cdc.gov/agent/ricin/facts.asp.
    \12\See Matt Vasilogambros and Nat'l J., Why Ricin Is the Domestic 
Terrorist's Toxin of Choice, The Atlantic, available at https://
www.theatlantic.com/politics/archive/2013/05/why-ricin-is-the-domestic-
terroritss-toxins-of-choice/438180/.
---------------------------------------------------------------------------

                        NEED FOR THE LEGISLATION

    The ``scrivener's error'' that is corrected by H.R. 1986 
has had real-life negative consequences as exemplified by its 
impeding the prosecution of at least one person, William 
Christopher Gibbs, who possessed and may have manufactured 
ricin. This legislation corrects the error to ensure the 
effective prosecution of individuals who carry out these kinds 
of activities.
    On January 17, 2017, Gibbs was stopped for running a stop 
sign in Fannin County, Georgia and, pursuant to a consensual 
search, law enforcement located ``some seeds'' in a bag in the 
glove compartment of his vehicle.\13\ Gibbs was given a verbal 
warning and the seeds were returned to him.\14\ On February 2, 
2017, the Fannin County Sheriff's Office ``responded to a call 
at the Fannin Regional Hospital concerning a suspect who had 
tried to make ricin, gotten it on himself, and drove to the 
hospital.''\15\ Gibbs was questioned at the hospital and law 
enforcement obtained consent to search his vehicle,\16\ wherein 
they located a substance that tested positive for ricin, in a 
bottle on the floorboard of the driver's side.\17\
---------------------------------------------------------------------------
    \13\United States v. Gibbs, Order and Report and Recommendation, CR 
17-00005 (N.D. Ga. Mar. 14, 2017) (Doc. 44), at 6.
    \14\Id.
    \15\Id. at 18.
    \16\Id. at 22.
    \17\Id. at 24.
---------------------------------------------------------------------------
    On February 22, 2017, Gibbs was charged with knowingly 
possessing ricin in violation of 18 U.S.C. Sec. 175b(c).\18\ 
According to the indictment in the case, ricin ``is a select 
agent for which the defendant had not obtained a registration 
required by regulations under section 351A(c) of the Public 
Health Service Act.''\19\ After Gibbs's arrest, the Southern 
Poverty Law Center identified him as claiming membership in a 
white supremacist group, the ``Georgia Church of Creativity,'' 
which professes race as a religion and that ``the white race is 
nature's finest.''\20\
---------------------------------------------------------------------------
    \18\United States v. Gibbs, Indictment, CR 17-00005 (N.D. Ga. Feb. 
22, 2017) (Doc. 1), at 1-2.
    \19\Id.
    \20\Jim White, In Dismissing Ricin Charge Against White 
Supremacist, Judge Throws Enforcement of Bioterrorism Law Into Chaos, 
Empty Wheel, Oct. 4, 2018, https://www.emptywheel.net/2018/10/04/in-
dismissing-ricin-charge-against-white-supremacist-judge-throws-
enforcement-of-bioterrorism-law-into-chaos/?print=print.
---------------------------------------------------------------------------
    Gibbs moved to dismiss the indictment on the theory that 
the unregistered possession of ricin is not a crime under 
section 175b(c). Under 18 U.S.C. Sec. 175b(c), it is a federal 
crime to ``knowingly possess[] a biological agent or toxin 
where such agent or toxin is a select agent for which such 
person has not obtained a registration required by regulations 
under section 351A(c) of the Public Health Service Act. . . 
.''\21\ A ``select agent'' is one ``to which subsection (a) 
applies.''\22\ Subsection (a)--which criminalizes shipping, 
transporting, and possessing certain biological agents and 
toxins--applies ``if the biological agent or toxin is listed . 
. . in section 73.4 and 73.5 of title 42'' of the CFR.\23\
---------------------------------------------------------------------------
    \21\18 U.S.C. Sec. 175b(c)(1) (2019).
    \22\Id. at Sec. 175b(d)(1).
    \23\Id. at Sec. 175b(a)(1).
---------------------------------------------------------------------------
    Section 73.4 of Title 42 of the CFR includes a list of 
overlap select agents and toxins that HHS has determined pose 
potential threats to public health and safety. Section 73.5 
contains exemptions. As the court found in Gibbs, however, 
neither section 73.4 nor section 73.5 mentions ricin.\24\ Upon 
analyzing the plain language of the statute, the court held 
that the term ``select agent'' under 18 U.S.C. Sec. 175b does 
not include ricin\25\ and, accordingly, dismissed the 
indictment against Gibbs.\26\ Under current law, the government 
cannot bring cases against individuals who possess or 
distribute biological toxins or agents that should be, but are 
not, included in the HHS list of prohibited substances. As the 
court in Gibbs admonished, because ``Sec. 175b cannot be read 
to criminalize the unregistered possession of ricin''\27\ it 
now ``falls to Congress to . . . amend [the law] if [it] yields 
unfair or unwanted results.''\28\
---------------------------------------------------------------------------
    \24\United States v. Gibbs, Order, CR 17-00005 (N.D. Ga. Sep. 21, 
2018) (Doc. 71), at 6.
    \25\Id.
    \26\Id. at 10.
    \27\Id. at 8.
    \28\Id. at 9.
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                                Hearings

    No legislative hearings were held on H.R. 1986.

                        Committee Consideration

    On June 12, 2019, the Committee met in open session and 
ordered the bill, H.R. 1986, favorably reported, without 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that no 
rollcall votes occurred during the Committee's consideration of 
H.R. 1986.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1986, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 26, 2019.
Hon. Jerrold Nadler,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1986, the 
Effective Prosecution of Possession of Biological Toxins and 
Agents Act of 2019.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                             Mark P. Hadley
                                 (For Phillip L. Swagel, Director).
Enclosure.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 1986 would broaden the coverage of current laws 
against misuse of certain toxins. People who violate the bill's 
provisions could be subject to criminal fines, so the federal 
government might collect additional fines under the 
legislation. Criminal fines are recorded in the budget as 
revenues, deposited in the Crime Victims Fund, and later spent 
without further appropriation action. CBO expects that any 
additional revenues and associated direct spending would not be 
significant because relatively few additional cases would 
probably be affected.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 1986 establishes or reauthorizes a 
program of the Federal government known to be duplicative of 
another federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1986 would ensure the effective prosecution of unauthorized or 
unregistered persons who possess or distribute the biological 
toxins and agents, the possession or distribution of which 
Congress intended to prohibit.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1986 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Section 1. Short Title. Section 1 sets forth the short 
title of the legislation as the ``Effective Prosecution of 
Possession of Biological Toxins and Agents Act of 2019''.
    Section 2. Prohibition on the Possession of Biological 
Toxins and Agents. Section 2 amends section 175b of title 18 to 
make clear that the agents and toxins covered by the statute 
are those listed as ``non-overlap or overlap select biological 
agent[s] or toxin[s] under Part 73 of Title 42 of the Code of 
Federal Regulations.'' The bill also reorganizes the visual 
structure of section 175b by changing certain margins and 
adding certain titles and subtitles to make clear: (1) that it 
shall be unlawful for a restricted person to ship, transport, 
possess or receive in or affecting interstate or foreign 
commerce any covered biological agent or toxin; (2) where in 
the Code of Federal Regulations the complete list of covered 
agents and toxins can be found; (3) the penalty associated with 
violating the statute; and (4) its relevant definitions.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, H.R. 1986, as reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no changes are proposed is shown in roman):

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE


PART I--CRIMES

           *       *       *       *       *       *       *


CHAPTER 10--BIOLOGICAL WEAPONS

           *       *       *       *       *       *       *



Sec. 175b. Possession by restricted persons

  [(a)][(1) No restricted person shall ship or transport in or 
affecting interstate or foreign commerce, or possess in or 
affecting interstate or foreign commerce, any biological agent 
or toxin, or receive any biological agent or toxin that has 
been shipped or transported in interstate or foreign commerce, 
if the biological agent or toxin is listed as a non-overlap or 
overlap select biological agent or toxin in sections 73.4 and 
73.5 of title 42, Code of Federal Regulations, pursuant to 
section 351A of the Public Health Service Act, and is not 
excluded under sections 73.4 and 73.5 or exempted under section 
73.6 of title 42, Code of Federal Regulations.]
  (a) Offense.--
          (1) In general.--It shall be unlawful for a 
        restricted person to--
                  (A) ship, transport, or possess in or 
                affecting interstate or foreign commerce any 
                biological agent or toxin described in 
                paragraph (2); or
                  (B) receive any biological agent or toxin 
                described in paragraph (2) that has been 
                shipped or transported in interstate or foreign 
                commerce.
          (2) Agents and toxins covered.--A biological agent or 
        toxin described in this paragraph is a biological agent 
        or toxin that--
                  (A) is listed as a non-overlap or overlap 
                select biological agent or toxin under part 73 
                of title 42, Code of Federal Regulations, 
                pursuant to section 351A of the Public Health 
                Service Act (42 U.S.C. 262a); and
                  (B) is not excluded or exempted under part 73 
                of title 42, Code of Federal Regulations.
          [(2) Whoever] (3) Penalty._Whoever  knowingly 
        violates this section shall be fined as provided in 
        this title, imprisoned not more than 10 years, or both, 
        but the prohibition contained in this section shall not 
        apply with respect to any duly authorized United States 
        governmental activity.
  (b) Transfer to Unregistered Person.--
          (1) Select agents.--Whoever transfers a select agent 
        to a person who the transferor knows or has reasonable 
        cause to believe is not registered as required by 
        regulations under subsection (b) or (c) of section 351A 
        of the Public Health Service Act shall be fined under 
        this title, or imprisoned for not more than 5 years, or 
        both.
          (2) Certain other biological agents and toxins.--
        Whoever transfers a biological agent or toxin listed 
        pursuant to section 212(a)(1) of the Agricultural 
        Bioterrorism Protection Act of 2002 to a person who the 
        transferor knows or has reasonable cause to believe is 
        not registered as required by regulations under 
        subsection (b) or (c) of section 212 of such Act shall 
        be fined under this title, or imprisoned for not more 
        than 5 years, or both.
  (c) Unregistered for Possession.--
          (1) Select agents.--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 required by regulations under section 
        351A(c) of the Public Health Service Act shall be fined 
        under this title, or imprisoned for not more than 5 
        years, or both.
          (2) Certain other biological agents and toxins.--
        Whoever knowingly possesses a biological agent or toxin 
        where such agent or toxin is a biological agent or 
        toxin listed pursuant to section 212(a)(1) of the 
        Agricultural Bioterrorism Protection Act of 2002 for 
        which such person has not obtained a registration 
        required by regulations under section 212(c) of such 
        Act shall be fined under this title, or imprisoned for 
        not more than 5 years, or both.
  (d) Definitions._ In this section:
          (1) The term ``select agent'' means a biological 
        agent or toxin to which subsection (a) applies. Such 
        term (including for purposes of subsection (a)) 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.
          (2) The term ``restricted person'' 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 punishable by imprisonment for a term 
                exceeding 1 year;
                  (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) has been adjudicated as a mental 
                defective or has been committed to any mental 
                institution;
                  (G)(i) 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)), section 620A of chapter 1 
                of part M of the Foreign Assistance Act of 1961 
                (22 U.S.C. 2371), or section 40(d) of chapter 3 
                of the Arms Export Control Act (22 U.S.C. 
                2780(d)), has made a determination (that 
                remains in effect) that such country has 
                repeatedly provided support for acts of 
                international terrorism, or (ii) acts for or on 
                behalf of, or operates subject to the direction 
                or control of, a government or official of a 
                country described in this subparagraph;
                  (H) has been discharged from the Armed 
                Services of the United States under 
                dishonorable conditions; or
                  (I) is a member of, acts for or on behalf of, 
                or operates subject to the direction or control 
                of, a terrorist organization as defined in 
                section 212(a)(3)(B)(vi) of the Immigration and 
                Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)).
          (3) 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)).
          (4) 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)).

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