(b) Regulation of transfers of listed agents and toxinsThe Secretary shall by regulation provide for—(1) the establishment and enforcement of safety procedures for the transfer of listed agents and toxins, including measures to ensure—(A) proper training, including with respect to notification requirements under this section, of—(i) individuals who are involved in the handling and use of such agents and toxins, including appropriate skills to handle such agents and toxins;
(ii) individuals whose responsibilities routinely place them in close proximity to laboratory facilities in which such agents and toxins are being transferred, possessed, or used; and
(iii) individuals who perform administrative or oversight functions of the facility related to the transfer, possession, or use of such agents and toxins on behalf of registered persons;
(B) proper laboratory facilities to contain and dispose of such agents and toxins;
(2) the establishment and enforcement of safeguard and security measures to prevent access to such agents and toxins for use in domestic or international terrorism or for any other criminal purpose;
(3) the establishment of procedures to protect the public safety in the event of a transfer or potential transfer of such an agent or toxin in violation of the safety procedures established under paragraph (1) or the safeguard and security measures established under paragraph (2); and
(4) appropriate availability of biological agents and toxins for research, education, and other legitimate purposes.
(e) Safeguard and security requirements for registered persons(1) In generalRegulations under subsections (b) and (c) shall include appropriate safeguard and security requirements for persons possessing, using, or transferring a listed agent or toxin commensurate with the risk such agent or toxin poses to public health and safety (including risks posed by the release, theft, or loss of such agent or toxin, or use in domestic or international terrorism). The Secretary shall establish such requirements in collaboration with the Secretary of Homeland Security and the Attorney General, and shall ensure compliance with such requirements as part of the registration system under such regulations.
(2) Limiting access to listed agents and toxinsRequirements under paragraph (1) shall include provisions to ensure that registered persons—(A) provide access to listed agents and toxins to only those individuals whom the registered person involved determines have a legitimate need to handle or use such agents and toxins;
(B) submit the names and other identifying information for such individuals to the Secretary and the Attorney General, promptly after first determining that the individuals need access under subparagraph (A), and periodically thereafter while the individuals have such access, not less frequently than once every five years;
(C)
(D) limit or deny access to such agents and toxins by individuals whom the Attorney General has identified as within any category under paragraph (3)(B)(ii), if limiting or denying such access by the individuals involved is determined appropriate by the Secretary, in consultation with the Attorney General.
(3) Submitted names; use of databases by attorney general(A) In generalUpon the receipt of names and other identifying information under paragraph (2)(B), the Attorney General shall, for the sole purpose of identifying whether the individuals involved are within any of the categories specified in subparagraph (B), promptly use criminal, immigration, national security, and other electronic databases that are available to the Federal Government and are appropriate for such purpose.
(B) Certain individualsFor purposes of subparagraph (A), the categories specified in this subparagraph regarding an individual are that—(i) the individual is a restricted person; or
(ii) the individual is reasonably suspected by any Federal law enforcement or intelligence agency of—(I) committing a crime set forth in section 2332b(g)(5) of title 18;(II) knowing involvement with an organization that engages in domestic or international terrorism (as defined in section 2331 of such title 18) or with any other organization that engages in intentional crimes of violence; or(III) being an agent of a foreign power (as defined in section 1801 of title 50).
(C) Notification by Attorney General regarding submitted namesAfter the receipt of a name and other identifying information under paragraph (2)(B), the Attorney General shall promptly notify the Secretary whether the individual is within any of the categories specified in subparagraph (B).
(4) Notifications by SecretaryThe Secretary, after receiving notice under paragraph (3) regarding an individual, shall promptly notify the registered person involved of whether the individual is granted or denied access under paragraph (2). If the individual is denied such access, the Secretary shall promptly notify the individual of the denial.
(5) Expedited reviewRegulations under subsections (b) and (c) shall provide for a procedure through which, upon request to the Secretary by a registered person who submits names and other identifying information under paragraph (2)(B) and who demonstrates good cause, the Secretary may, as determined appropriate by the Secretary—(A) request the Attorney General to expedite the process of identification under paragraph (3)(A) and notification of the Secretary under paragraph (3)(C); and
(B) expedite the notification of the registered person by the Secretary under paragraph (4).
(6) Process regarding persons seeking to register(A) IndividualsRegulations under subsections (b) and (c) shall provide that an individual who seeks to register under either of such subsections is subject to the same processes described in paragraphs (2) through (4) as apply to names and other identifying information submitted to the Attorney General under paragraph (2)(B). Paragraph (5) does not apply for purposes of this subparagraph.
(B) Other personsRegulations under subsections (b) and (c) shall provide that, in determining whether to deny or revoke registration by a person other than an individual, the Secretary shall submit the name of such person to the Attorney General, who shall use criminal, immigration, national security, and other electronic databases available to the Federal Government, as appropriate for the purpose of promptly notifying the Secretary whether the person, or, where relevant, the individual who owns or controls such person, is a restricted person or is reasonably suspected by any Federal law enforcement or intelligence agency of being within any category specified in paragraph (3)(B)(ii) (as applied to persons, including individuals). Such regulations shall provide that a person who seeks to register under either of such subsections is subject to the same processes described in paragraphs (2) and (4) as apply to names and other identifying information submitted to the Attorney General under paragraph (2)(B). Paragraph (5) does not apply for purposes of this subparagraph. The Secretary may exempt Federal, State, or local governmental agencies from the requirements of this subparagraph.
(7) Review(A) Administrative review(i) In generalRegulations under subsections (b) and (c) shall provide for an opportunity for a review by the Secretary—(I) when requested by the individual involved, of a determination under paragraph (2) to deny the individual access to listed agents and toxins; and(II) when requested by the person involved, of a determination under paragraph (6) to deny or revoke registration for such person.
(ii) Ex parte reviewDuring a review under clause (i), the Secretary may consider information relevant to the review ex parte to the extent that disclosure of the information could compromise national security or an investigation by any law enforcement agency.
(iii) Final agency actionThe decision of the Secretary in a review under clause (i) constitutes final agency action for purposes of section 702 of title 5.
(B) Certain procedures(i) Submission of ex parte materials in judicial proceedingsWhen reviewing a decision of the Secretary under subparagraph (A), and upon request made ex parte and in writing by the United States, a court, upon a sufficient showing, may review and consider ex parte documents containing information the disclosure of which could compromise national security or an investigation by any law enforcement agency. If the court determines that portions of the documents considered ex parte should be disclosed to the person involved to allow a response, the court shall authorize the United States to delete from such documents specified items of information the disclosure of which could compromise national security or an investigation by any law enforcement agency, or to substitute a summary of the information to which the person may respond. Any order by the court authorizing the disclosure of information that the United States believes could compromise national security or an investigation by any law enforcement agency shall be subject to the processes set forth in subparagraphs (A) and (B)(i) of section 2339B(f)(5) of title 18 (relating to interlocutory appeal and expedited consideration).
(ii) Disclosure of informationIn a review under subparagraph (A), and in any judical 1
1 So in original. Probably should be “judicial”.
proceeding conducted pursuant to such review, neither the Secretary nor the Attorney General may be required to disclose to the public any information that under subsection (h) shall not be disclosed under section 552 of title 5. (8) Notifications regarding theft or loss of agentsRequirements under paragraph (1) shall include the prompt notification of the Secretary, and appropriate Federal, State, and local law enforcement agencies, of the theft or loss of listed agents and toxins.
(9) Technical assistance for registered personsThe Secretary, in consultation with the Attorney General, may provide technical assistance to registered persons to improve security of the facilities of such persons.
(g) Exemptions(1) Clinical or diagnostic laboratoriesRegulations under subsections (b) and (c) shall exempt clinical or diagnostic laboratories and other persons who possess, use, or transfer listed agents or toxins that are contained in specimens presented for diagnosis, verification, or proficiency testing, provided that—(A) the identification of such agents or toxins is reported to the Secretary, and when required under Federal, State, or local law, to other appropriate authorities; and
(B) such agents or toxins are transferred or destroyed in a manner set forth by the Secretary by regulation.
(2) Products(A) In generalRegulations under subsections (b) and (c) shall exempt products that are, bear, or contain listed agents or toxins and are cleared, approved, licensed, or registered under any of the Acts specified in subparagraph (B), unless the Secretary by order determines that applying additional regulation under subsection (b) or (c) to a specific product is necessary to protect public health and safety.
(B) Relevant lawsFor purposes of subparagraph (A), the Acts specified in this subparagraph are the following:(i) The Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.]. (ii)Section 262 of this title.
(iii) The Act commonly known as the Virus-Serum-Toxin Act (the eighth paragraph under the span “Bureau of Animal Industry” in the Act of March 4, 1913; 21 U.S.C. 151–159). (iv) The Federal Insecticide, Fungicide, and Rodenticide Act [7 U.S.C. 136 et seq.]. (C) Investigational use(i) In generalThe Secretary may exempt an investigational product that is, bears, or contains a listed agent or toxin from the applicability of provisions of regulations under subsection (b) or (c) when such product is being used in an investigation authorized under any Federal Act and the Secretary determines that applying additional regulation under subsection (b) or (c) to such product is not necessary to protect public health and safety.
(ii) Certain processesRegulations under subsections (b) and (c) shall set forth the procedures for applying for an exemption under clause (i). In the case of investigational products authorized under any of the Acts specified in subparagraph (B), the Secretary shall make a determination regarding a request for an exemption not later than 14 days after the first date on which both of the following conditions have been met by the person requesting the exemption:(I) The person has submitted to the Secretary an application for the exemption meeting the requirements established by the Secretary.(II) The person has notified the Secretary that the investigation has been authorized under such an Act.
(3) Public health emergenciesThe Secretary may temporarily exempt a person from the applicability of the requirements of this section, in whole or in part, if the Secretary determines that such exemption is necessary to provide for the timely participation of the person in a response to a domestic or foreign public health emergency (whether determined under section 247d(a) of this title or otherwise) that involves a listed agent or toxin. With respect to the emergency involved, such exemption for a person may not exceed 30 days, except that the Secretary, after review of whether such exemption remains necessary, may provide one extension of an additional 30 days.
(4) Agricultural emergenciesUpon request of the Secretary of Agriculture, after the granting by such Secretary of an exemption under section 8401(g)(1)(D) of title 7 pursuant to a finding that there is an agricultural emergency, the Secretary of Health and Human Services may temporarily exempt a person from the applicability of the requirements of this section, in whole or in part, to provide for the timely participation of the person in a response to the agricultural emergency. With respect to the emergency involved, the exemption under this paragraph for a person may not exceed 30 days, except that upon request of the Secretary of Agriculture, the Secretary of Health and Human Services may, after review of whether such exemption remains necessary, provide one extension of an additional 30 days.
(h) Disclosure of information(1) Nondisclosure of certain informationNo Federal agency specified in paragraph (2) shall disclose under section 552 of title 5 any of the following:(A) Any registration or transfer documentation submitted under subsections (b) and (c) for the possession, use, or transfer of a listed agent or toxin; or information derived therefrom to the extent that it identifies the listed agent or toxin possessed, used, or transferred by a specific registered person or discloses the identity or location of a specific registered person.
(B) The national database developed pursuant to subsection (d), or any other compilation of the registration or transfer information submitted under subsections (b) and (c) to the extent that such compilation discloses site-specific registration or transfer information.
(C) Any portion of a record that discloses the site-specific or transfer-specific safeguard and security measures used by a registered person to prevent unauthorized access to listed agents and toxins.
(D) Any notification of a release of a listed agent or toxin submitted under subsections (b) and (c), or any notification of theft or loss submitted under such subsections.
(E) Any portion of an evaluation or report of an inspection of a specific registered person conducted under subsection (f) that identifies the listed agent or toxin possessed by a specific registered person or that discloses the identity or location of a specific registered person if the agency determines that public disclosure of the information would endanger public health or safety.
(2) Covered agenciesFor purposes of paragraph (1) only, the Federal agencies specified in this paragraph are the following:(A) The Department of Health and Human Services, the Department of Justice, the Department of Agriculture, and the Department of Transportation.
(B) Any Federal agency to which information specified in paragraph (1) is transferred by any agency specified in subparagraph (A) of this paragraph.
(C) Any Federal agency that is a registered person, or has a sub-agency component that is a registered person.
(D) Any Federal agency that awards grants or enters into contracts or cooperative agreements involving listed agents and toxins to or with a registered person, and to which information specified in paragraph (1) is transferred by any such registered person.
(3) Other exemptionsThis subsection may not be construed as altering the application of any exemptions to public disclosure under section 552 of title 5, except as to subsection 2
2 So in original. Probably should be “section”.
552(b)(3) of such title, to any of the information specified in paragraph (1). (4) Rule of constructionExcept as specifically provided in paragraph (1), this subsection may not be construed as altering the authority of any Federal agency to withhold under section 552 of title 5, or the obligation of any Federal agency to disclose under section 552 of title 5, any information, including information relating to—(A) listed agents and toxins, or individuals seeking access to such agents and toxins;
(B) registered persons, or persons seeking to register their possession, use, or transfer of such agents and toxins;
(C) general safeguard and security policies and requirements under regulations under subsections (b) and (c); or
(D) summary or statistical information concerning registrations, registrants, denials or revocations of registrations, listed agents and toxins, inspection evaluations and reports, or individuals seeking access to such agents and toxins.
(5) Disclosures to Congress; other disclosuresThis subsection may not be construed as providing any authority—(A) to withhold information from the Congress or any committee or subcommittee thereof; or
(B) to withhold information from any person under any other Federal law or treaty.
(j) Notification in event of releaseRegulations under subsections (b) and (c) shall require the prompt notification of the Secretary by a registered person whenever a release, meeting criteria established by the Secretary, of a listed agent or toxin has occurred outside of the biocontainment area of a facility of the registered person. Upon receipt of such notification and a finding by the Secretary that the release poses a threat to public health or safety, the Secretary shall take appropriate action to notify relevant State and local public health authorities, other relevant Federal authorities, and, if necessary, other appropriate persons (including the public). If the released listed agent or toxin is an overlap agent or toxin (as defined in subsection (l)), the Secretary shall promptly notify the Secretary of Agriculture upon notification by the registered person.
(k) Reports(1) Notification with respect to Federal facilitiesIn the event of the release, loss, or theft of an agent or toxin listed by the Secretary pursuant to subsection (a)(1), or by the Secretary of Agriculture pursuant to section 8401(a)(1) of title 7, from or within a laboratory facility owned or operated by the Department of Health and Human Services, or other Federal laboratory facility subject to the requirements of this section, the Secretary, in a manner that does not compromise national security, shall—(A) not later than 72 hours after such event is reported to the Secretary, notify the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives of such event, including—(i) the Federal laboratory facility in which such release, loss, or theft occurred; and
(ii) the circumstances of such release, loss, or theft; and
(B) not later than 14 days after such notification, update such Committees on—(i) any actions taken or planned by the Secretary to mitigate any potential threat such release, loss, or theft may pose to public health and safety; and
(ii) any actions taken or planned by the Secretary to review the circumstances of such release, loss, or theft, and prevent similar events.
(2) Annual reportThe Secretary shall submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives on an annual basis a report—(A) summarizing the number and nature of notifications received under subsection (e)(8) (relating to theft or loss) and subsection (j) (relating to releases), during the preceding fiscal year;
(B) describing actions taken by the Secretary to address such incidents, such as any corrective action plans required and steps taken to promote adherence to, and compliance with, safety and security best practices, standards, and regulations; and
(C) describing any gaps, challenges, or limitations with respect to ensuring that such safety and security practices are consistently applied and adhered to, and actions taken to address such gaps, challenges, or limitations.
(3) Implementation of recommendations of the Federal Experts Security Advisory Panel and the fast track action committee on select agent regulations(A) In generalNot later than 1 year after June 24, 2019, the Secretary shall report to the congressional committees of jurisdiction on the implementation of recommendations of the Federal Experts Security Advisory Panel concerning the select agent program.
(B) Continued updatesThe Secretary shall report to the congressional committees of jurisdiction annually following the submission of the report under subparagraph (A) until the recommendations described in such subparagraph are fully implemented, or a justification is provided for the delay in, or lack of, implementation.
(l) DefinitionsFor purposes of this section:(1) The terms “biological agent” and “toxin” have the meanings given such terms in section 178 of title 18.
(2) The term “listed agents and toxins” means biological agents and toxins listed pursuant to subsection (a)(1).
(3) The term “listed agents or toxins” means biological agents or toxins listed pursuant to subsection (a)(1).
(4) The term “overlap agents and toxins” means biological agents and toxins that—(A) are listed pursuant to subsection (a)(1); and
(B) are listed pursuant to section 8401(a)(1) of title 7.
(5) The term “overlap agent or toxin” means a biological agent or toxin that—(A) is listed pursuant to subsection (a)(1); and
(B) is listed pursuant to section 8401(a)(1) of title 7.
(6) The term “person” includes Federal, State, and local governmental entities.
(7) The term “registered person” means a person registered under regulations under subsection (b) or (c).
(8) The term “restricted person” has the meaning given such term in section 175b of title 18.
(July 1, 1944, ch. 373, title III, § 351A, as added Pub. L. 107–188, title II, § 201(a), June 12, 2002, 116 Stat. 637; amended Pub. L. 107–296, title XVII, § 1709(a), Nov. 25, 2002, 116 Stat. 2318; Pub. L. 116–22, title IV, § 405, June 24, 2019, 133 Stat. 949; Pub. L. 117–286, § 4(b)(75), Dec. 27, 2022, 136 Stat. 4351; Pub. L. 117–328, div. FF, title II, § 2311, Dec. 29, 2022, 136 Stat. 5759.)
