18 U.S.C. § 175b — Possession by restricted persons

Page 47 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 175b 1 See References in Text note below. tains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or know- ingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both. There is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the United States. (b) ADDITIONAL OFFENSE.—Whoever knowingly possesses any biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10 years, or both. In this subsection, the terms ‘‘biological agent’’ and ‘‘toxin’’ do not encompass any bio- logical agent or toxin that is in its naturally oc- curring environment, if the biological agent or toxin has not been cultivated, collected, or oth- erwise extracted from its natural source. (c) DEFINITION.—For purposes of this section, the term ‘‘for use as a weapon’’ includes the de- velopment, production, transfer, acquisition, re- tention, or possession of any biological agent, toxin, or delivery system for other than prophy- lactic, protective, bona fide research, or other peaceful purposes. (Added Pub. L. 101–298, § 3(a), May 22, 1990, 104 Stat. 201; amended Pub. L. 104–132, title V, § 511(b)(1), Apr. 24, 1996, 110 Stat. 1284; Pub. L. 107–56, title VIII, § 817(1), Oct. 26, 2001, 115 Stat. 385; Pub. L. 107–188, title II, § 231(c)(1), June 12, 2002, 116 Stat. 661.) Editorial Notes AMENDMENTS 2002—Subsec. (c). Pub. L. 107–188 substituted ‘‘protec- tive, bona fide research, or other peaceful purposes’’ for ‘‘protective bona fide research, or other peaceful pur- poses’’. 2001—Subsec. (b). Pub. L. 107–56, § 817(1)(C), added sub- sec. (b). Former subsec. (b) redesignated (c). Pub. L. 107–56, § 817(1)(A), substituted ‘‘includes’’ for ‘‘does not include’’ and inserted ‘‘other than’’ after ‘‘de- livery system for’’ and ‘‘bona fide research’’ after ‘‘pro- tective’’. Subsec. (c). Pub. L. 107–56, § 817(1)(B), redesignated subsec. (b) as (c). 1996—Subsec. (a). Pub. L. 104–132 inserted ‘‘or at- tempts, threatens, or conspires to do the same,’’ before ‘‘shall be fined under this title’’. Statutory Notes and Related Subsidiaries SHORT TITLE Pub. L. 101–298, § 1, May 22, 1990, 104 Stat. 201, provided that: ‘‘This Act [enacting this chapter and amending section 2516 of this title] may be cited as the ‘Biological Weapons Anti-Terrorism Act of 1989’.’’ PURPOSE AND INTENT Pub. L. 101–298, § 2, May 22, 1990, 104 Stat. 201, provided that: ‘‘(a) PURPOSE.—The purpose of this Act [see Short Title note above] is to— ‘‘(1) implement the Biological Weapons Convention, an international agreement unanimously ratified by the United States Senate in 1974 and signed by more than 100 other nations, including the Soviet Union; and ‘‘(2) protect the United States against the threat of biological terrorism. ‘‘(b) INTENT OF ACT.—Nothing in this Act is intended to restrain or restrict peaceful scientific research or development.’’ § 175a. Requests for military assistance to en- force prohibition in certain emergencies The Attorney General may request the Sec- retary of Defense to provide assistance under section 382 of title 10 1 in support of Department of Justice activities relating to the enforcement of section 175 of this title in an emergency situa- tion involving a biological weapon of mass de- struction. The authority to make such a request may be exercised by another official of the De- partment of Justice in accordance with section 382(f)(2) of title 10.1 (Added Pub. L. 104–201, div. A, title XIV, § 1416(c)(1)(A), Sept. 23, 1996, 110 Stat. 2723.) Editorial Notes REFERENCES IN TEXT Section 382 of title 10, referred to in text, was renum- bered section 282 of title 10, Armed Forces, by Pub. L. 114–328, div. A, title XII, § 1241(a)(2), Dec. 23, 2016, 130 Stat. 2497. § 175b. Possession by restricted persons (a) OFFENSE.— (1) IN GENERAL.—It shall be unlawful for a re- stricted person to— (A) ship, transport, or possess in or affect- ing interstate or foreign commerce any bio- logical 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 for- eign commerce. (2) AGENTS AND TOXINS COVERED.—A biologi- cal agent or toxin described in this paragraph is a biological agent or toxin that— (A) is listed as a non-overlap or overlap se- lect biological agent or toxin under part 73 of title 42, Code of Federal Regulations, pur- suant 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. (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 sec- tion shall not apply with respect to any duly authorized United States governmental activ- ity. (b) TRANSFER TO UNREGISTERED PERSON.— (1) SELECT AGENTS.—Whoever transfers a se- lect 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 Page 48 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 175b 1 See References in Text note below. 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 reg- istered as required by regulations under sub- section (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 pos- sesses a biological agent or toxin where such agent or toxin is a select agent for which such person has not obtained a registration re- quired 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 bio- logical agent or toxin where such agent or toxin is a biological agent or toxin listed pur- suant to section 212(a)(1) of the Agricultural Bioterrorism Protection Act of 2002 for which such person has not obtained a registration re- quired by regulations under section 212(c) of such Act shall be fined under this title, or im- prisoned for not more than 5 years, or both. (d) DEFINITIONS.—In this section: (1) The term ‘‘select agent’’ means a biologi- cal agent or toxin to which subsection (a) ap- plies. Such term (including for purposes of subsection (a)) does not include any such bio- logical 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 punish- able 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 defec- tive or has been committed to any mental institution; (G)(i) is an alien (other than an alien law- fully admitted for permanent residence) who is a national of a country as to which the Secretary of State, pursuant to section 6(j) 1 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 chap- ter 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 direc- tion 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 dishon- orable conditions; or (I) is a member of, acts for or on behalf of, or operates subject to the direction or con- trol 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 perma- nent residence’’ has the same meaning as in section 101(a)(20) of the Immigration and Na- tionality Act (8 U.S.C. 1101(a)(20)). (Added Pub. L. 107–56, title VIII, § 817(2), Oct. 26, 2001, 115 Stat. 385; amended Pub. L. 107–188, title II, § 231(a), (b)(1), (c)(2), June 12, 2002, 116 Stat. 660, 661; Pub. L. 107–273, div. B, title IV, § 4005(g), Nov. 2, 2002, 116 Stat. 1813; Pub. L. 108–458, title VI, § 6802(c), (d)(1), Dec. 17, 2004, 118 Stat. 3767; Pub. L. 116–31, § 2, July 25, 2019, 133 Stat. 1034.) Editorial Notes REFERENCES IN TEXT Section 351A of the Public Health Service Act, re- ferred to in subsecs. (b)(1) and (c)(1), is classified to sec- tion 262a of Title 42, The Public Health and Welfare. Section 212 of the Agricultural Bioterrorism Protec- tion Act of 2002, referred to in subsecs. (b)(2) and (c)(2), is classified to section 8401 of Title 7, Agriculture. Section 6(j) of the Export Administration Act of 1979, referred to in subsec. (d)(2)(G)(i), was classified to sec- tion 2405(j) of the former Appendix to Title 50, War and National Defense, prior to editorial reclassification and renumbering as section 4605(j) of Title 50, and was re- pealed by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232. For provisions similar to those of former section 4605(j) of Title 50, see section 4813(c) of Title 50, as enacted by Pub. L. 115–232. AMENDMENTS 2019—Subsec. (a). Pub. L. 116–31, § 2(1), inserted sub- sec. heading; added pars. (1) and (2); redesignated former par. (2) as (3), inserted par. heading and re- aligned margin; and struck out former par. (1) which prohibited the shipment, transportation, or possession of certain biological agents or toxins. Subsec. (d). Pub. L. 116–31, § 2(2), inserted heading. 2004—Subsec. (a)(1). Pub. L. 108–458, § 6802(d)(1), sub- stituted ‘‘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’’ for ‘‘as a select agent in Appendix A of part 72 of title 42, Code of Fed- eral Regulations, pursuant to section 351A of the Public Health Service Act, and is not exempted under sub- section (h) of section 72.6, or Appendix A of part 72, of title 42, Code of Federal Regulations’’. Subsec. (d)(2)(G). Pub. L. 108–458, § 6802(c)(1), des- ignated existing provisions as cl. (i), added cl. (ii), and struck out ‘‘or’’ at end. Subsec. (d)(2)(H). Pub. L. 108–458, § 6802(c)(2), sub- stituted ‘‘; or’’ for period at end. Subsec. (d)(2)(I). Pub. L. 108–458, § 6802(c)(3), added subpar. (I). 2002—Pub. L. 107–273 substituted ‘‘Possession by re- stricted persons’’ for ‘‘Select agents; certain other agents’’ in section catchline. Page 49 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 175c Pub. L. 107–188, § 231(b)(1)(B), substituted ‘‘Select agents; certain other agents’’ for ‘‘Possession by re- stricted persons’’ in section catchline. Subsec. (a)(1). Pub. L. 107–188, § 231(a)(1), (c)(2)(A), des- ignated existing provisions of subsec. (a) as par. (1) and substituted ‘‘shall ship or transport in or affecting interstate or foreign commerce, or possess in or affect- ing 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 select agent in Appendix A of part 72 of title 42, Code of Federal Regulations, pursuant to section 351A of the Public Health Service Act, and is not ex- empted under subsection (h) of section 72.6, or Appendix A of part 72, of title 42, Code of Federal Regulations’’ for ‘‘described in subsection (b) shall ship or transport interstate or foreign commerce, or possess in or affect- ing 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 select agent in subsection (j) of section 72.6 of title 42, Code of Federal Regulations, pursuant to section 511(d)(l) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104–132), and is not exempted under sub- section (h) of such section 72.6, or appendix A of part 72 of the Code of Regulations’’. Subsec. (a)(2). Pub. L. 107–188, § 231(a)(2), (3), redesig- nated and transferred subsec. (c) as par. (2) of subsec. (a). Subsec. (b). Pub. L. 107–188, § 231(a)(5), added subsec. (b). Former subsec. (b) redesignated (d). Subsec. (c). Pub. L. 107–188, § 231(a)(5), added subsec. (c). Former subsec. (c) redesignated (a)(2). Subsec. (d). Pub. L. 107–188, § 231(a)(4), redesignated subsec. (b) as (d). Subsec. (d)(1). Pub. L. 107–188, § 231(b)(1)(A), sub- stituted ‘‘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’’ for ‘‘The term ‘select agent’ does not include’’. Subsec. (d)(3). Pub. L. 107–188, § 231(c)(2)(B), sub- stituted ‘‘section 101(a)(3)’’ for ‘‘section 1010(a)(3)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Pub. L. 108–458, title VI, § 6802(d)(2), Dec. 17, 2004, 118 Stat. 3767, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall take effect at the same time that sections 73.4, 73.5, and 73.6 of title 42, Code of Federal Regulations, become effective [probably means the effective date of the final rule re- vising sections 73.4, 73.5, and 73.6 of title 42, C.F.R., which was Apr. 18, 2005, see 70 F.R. 13294].’’ § 175c. Variola virus (a) UNLAWFUL CONDUCT.— (1) IN GENERAL.—Except as provided in para- graph (2), it shall be unlawful for any person to knowingly produce, engineer, synthesize, acquire, transfer directly or indirectly, re- ceive, possess, import, export, or use, or pos- sess and threaten to use, variola virus. (2) EXCEPTION.—This subsection does not apply to conduct by, or under the authority of, the Secretary of Health and Human Services. (b) JURISDICTION.—Conduct prohibited by sub- section (a) is within the jurisdiction of the United States if— (1) the offense occurs in or affects interstate or foreign commerce; (2) the offense occurs outside of the United States and is committed by a national of the United States; (3) the offense is committed against a na- tional of the United States while the national is outside the United States; (4) the offense is committed against any property that is owned, leased, or used by the United States or by any department or agency of the United States, whether the property is within or outside the United States; or (5) an offender aids or abets any person over whom jurisdiction exists under this subsection in committing an offense under this section or conspires with any person over whom jurisdic- tion exists under this subsection to commit an offense under this section. (c) CRIMINAL PENALTIES.— (1) IN GENERAL.—Any person who violates, or attempts or conspires to violate, subsection (a) shall be fined not more than $2,000,000 and shall be sentenced to a term of imprisonment not less than 25 years or to imprisonment for life. (2) OTHER CIRCUMSTANCES.—Any person who, in the course of a violation of subsection (a), uses, attempts or conspires to use, or possesses and threatens to use, any item or items de- scribed in subsection (a), shall be fined not more than $2,000,000 and imprisoned for not less than 30 years or imprisoned for life. (3) SPECIAL CIRCUMSTANCES.—If the death of another results from a person’s violation of subsection (a), the person shall be fined not more than $2,000,000 and punished by imprison- ment for life. (d) DEFINITION.—As used in this section, the term ‘‘variola virus’’ means a virus that can cause human smallpox or any derivative of the variola major virus that contains more than 85 percent of the gene sequence of the variola major virus or the variola minor virus. (Added Pub. L. 108–458, title VI, § 6906, Dec. 17, 2004, 118 Stat. 3773.) Statutory Notes and Related Subsidiaries FINDINGS AND PURPOSE Pub. L. 108–458, title VI, § 6902, Dec. 17, 2004, 118 Stat. 3769, provided that: ‘‘(a) FINDINGS.—Congress makes the following find- ings: ‘‘(1) The criminal use of man-portable air defense systems (referred to in this section as ‘MANPADS’) presents a serious threat to civil aviation worldwide, especially in the hands of terrorists or foreign states that harbor them. ‘‘(2) Atomic weapons or weapons designed to release radiation (commonly known as ‘dirty bombs’) could be used by terrorists to inflict enormous loss of life and damage to property and the environment. ‘‘(3) Variola virus is the causative agent of small- pox, an extremely serious, contagious, and sometimes fatal disease. Variola virus is classified as a Category A agent by the Centers for Disease Control and Pre- vention, meaning that it is believed to pose the great- est potential threat for adverse public health impact and has a moderate to high potential for large-scale dissemination. The last case of smallpox in the United States was in 1949. The last naturally occur- ring case in the world was in Somalia in 1977. Al- though smallpox has been officially eradicated after a successful worldwide vaccination program, there re- main two official repositories of the variola virus for research purposes. Because it is so dangerous, the variola virus may appeal to terrorists.