BILL NUMBER: SB 1287 CHAPTERED 09/17/02 CHAPTER 611 FILED WITH SECRETARY OF STATE SEPTEMBER 17, 2002 APPROVED BY GOVERNOR SEPTEMBER 16, 2002 PASSED THE SENATE AUGUST 29, 2002 PASSED THE ASSEMBLY AUGUST 27, 2002 AMENDED IN ASSEMBLY AUGUST 23, 2002 AMENDED IN ASSEMBLY JUNE 30, 2002 AMENDED IN SENATE MAY 7, 2002 AMENDED IN SENATE APRIL 25, 2002 INTRODUCED BY Senator Alarcon (Principal coauthor: Assembly Member Robert Pacheco) JANUARY 16, 2002 An act to amend Sections 11417, 11418.5, and 11419 of the Penal Code, relating to weapons of mass destruction, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST SB 1287, Alarcon. Weapons of mass destruction. Existing law defines "weapon of mass destruction." Existing law also provides that, absent lawful authority, the possession, development, manufacture, production, transfer, acquisition, or retention of any weapon of mass destruction is a felony. This bill would expand that definition to include restricted biological agents, and an aircraft, vessel, or vehicle that is used as a destructive weapon. This bill would also define "used as a destructive weapon" for purposes of those provisions. By expanding the scope of an existing crime, this bill would impose a state-mandated local program. Existing law provides that a threat, as specified, to use a weapon of mass destruction, that results in "sustained fear," as defined, is a crime. This bill would, in addition, expand the definition of evidence showing "sustained fear" to include any isolation, quarantine, or decontamination effort while deleting language specifying that any action taken in direct response to a threat to use a weapon of mass destruction is evidence of sustained fear. By expanding the scope of an existing crime, this bill would impose a state-mandated local program. Existing law provides that possession of a restricted biological agent, as defined, is punishable by imprisonment in the state prison for 4, 8, or 12 years, or a fine not exceeding $250,000, or by both that imprisonment and fine. This bill would revise the penalties to provide that the offense would be punishable only by the prison term and the fine in conjunction. The bill would also expand the list of restricted biological agents to include bioengineered products, as specified. By expanding the scope of an existing crime, this bill would impose a state-mandated local program. The bill would make related changes. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. The bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 11417 of the Penal Code is amended to read: 11417. (a) For the purposes of this article, the following terms have the following meanings: (1) "Weapon of mass destruction" includes chemical warfare agents, weaponized biological or biologic warfare agents, restricted biological agents, nuclear agents, radiological agents, or the intentional release of industrial agents as a weapon, or an aircraft, vessel, or vehicle, as described in Section 34500 of the Vehicle Code, which is used as a destructive weapon. (2) "Chemical Warfare Agents" includes, but is not limited to, the following weaponized agents, or any analog of these agents: (A) Nerve agents, including Tabun (GA), Sarin (GB), Soman (GD), GF, and VX. (B) Choking agents, including Phosgene (CG) and Diphosgene (DP). (C) Blood agents, including Hydrogen Cyanide (AC), Cyanogen Chloride (CK), and Arsine (SA). (D) Blister agents, including mustards (H, HD (sulfur mustard), HN-1, HN-2, HN-3 (nitrogen mustard)), arsenicals, such as Lewisite (L), urticants, such as CX; and incapacitating agents, such as BZ. (3) "Weaponized biological or biologic warfare agents" include weaponized pathogens, such as bacteria, viruses, rickettsia, yeasts, fungi, or genetically engineered pathogens, toxins, vectors, and endogenous biological regulators (EBRs). (4) "Nuclear or radiological agents" includes any improvised nuclear device (IND) which is any explosive device designed to cause a nuclear yield; any radiological dispersal device (RDD) which is any explosive device utilized to spread radioactive material; or a simple radiological dispersal device (SRDD) which is any act or container designed to release radiological material as a weapon without an explosion. (5) "Vector" means a living organism or a molecule, including a recombinant molecule, or a biological product that may be engineered as a result of biotechnology, that is capable of carrying a biological agent or toxin to a host. (6) "Weaponization" is the deliberate processing, preparation, packaging, or synthesis of any substance for use as a weapon or munition. "Weaponized agents" are those agents or substances prepared for dissemination through any explosive, thermal, pneumatic, or mechanical means. (7) For purposes of this section, "used as a destructive weapon" means to use with the intent of causing widespread great bodily injury or death by causing a fire or explosion or the release of a chemical, biological, or radioactive agent. (b) The intentional release of a dangerous chemical or hazardous material generally utilized in an industrial or commercial process shall be considered use of a weapon of mass destruction when a person knowingly utilizes those agents with the intent to cause harm and the use places persons or animals at risk of serious injury, illness, or death, or endangers the environment. (c) The lawful use of chemicals for legitimate mineral extraction, industrial, agricultural, or commercial purposes is not proscribed by this article. (d) No university, research institution, private company, individual, or hospital engaged in scientific or public health research and, as required, registered with the Centers for Disease Control and Prevention (CDC) pursuant to Part 113 (commencing with Section 113.1) of Subchapter E of Chapter 1 of Title 9 or pursuant to Part 72 (commencing with Section 72.1) of Subchapter E of Chapter 1 of Title 42 of the Code of Federal Regulations, or any successor provisions, shall be subject to this article. SEC. 2. Section 11418.5 of the Penal Code is amended to read: 11418.5. (a) Any person who knowingly threatens to use a weapon of mass destruction, with the specific intent that the statement as defined in Section 225 of the Evidence Code or a statement made by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety, or for his or her immediate family's safety shall be punished by imprisonment in a county jail for up to one year or in the state prison for 3, 4, or 6 years, and by a fine of not more than two hundred fifty thousand dollars ($250,000). (b) For the purposes of this section, "sustained fear" can be established by, but is not limited to, conduct such as evacuation of any building by any occupant, evacuation of any school by any employee or student, evacuation of any home by any resident or occupant, any isolation, quarantine, or decontamination effort. (c) The fact that the person who allegedly violated this section did not actually possess a biological agent, toxin, or chemical weapon does not constitute a defense to the crime specified in this section. (d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment. SEC. 3. Section 11419 of the Penal Code is amended to read: 11419. (a) Any person or entity possessing any of the restricted biological agents enumerated in subdivision (b) shall be punished by imprisonment in the state prison for 4, 8, or 12 years, and by a fine of not more than two hundred fifty thousand dollars ($250,000). (b) For the purposes of this section, "restricted biological agents" means the following: (1) Viruses: Crimean-Congo hemorrhagic fever virus, eastern equine encephalitis virus, ebola viruses, equine morbilli virus, lassa fever virus, marburg virus, Rift Valley fever virus, South African hemorrhagic fever viruses (Junin, Machupo, Sabia, Flexal, Guanarito), tick-borne encephalitis complex viruses, variola major virus (smallpox virus), Venezuelan equine encephalitis virus, viruses causing hantavirus pulmonary syndrome, yellow fever virus. (2) Bacteria: bacillus anthracis (commonly known as anthrax), brucella abortus, brucella melitensis, brucella suis, burkholderia (pseudomonas) mallei, burkholderia (pseudomonas) pseudomallei, clostridium botulinum, francisella tularensis, yersinia pestis (commonly known as plague). (3) Rickettsiae: coxiella burnetii, rickettsia prowazekii, rickettsia rickettsii. (4) Fungi: coccidioides immitis. (5) Toxins: abrin, aflatoxins, botulinum toxins, clostridium perfringens epsilon toxin, conotoxins, diacetoxyscirpenol, ricin, saxitoxin, shigatoxin, staphylococcal enterotoxins, tabtoxin, tetrodotoxin, T-2 toxin. (6) Any other microorganism, virus, infectious substance, or biological product that has the same characteristics as, or is substantially similar to, the substances prohibited in this section. (c) (1) This section shall not apply to any physician, veterinarian, pharmacist, or licensed medical practitioner authorized to dispense a prescription under Section 11026 of the Health and Safety Code, or universities, research institutions, or pharmaceutical corporations, or any person possessing the agents pursuant to a lawful prescription issued by a person defined in Section 11026 of the Health and Safety Code, if the person possesses vaccine strains of the viral agents Junin virus strain #1, Rift Valley fever virus strain MP-12, Venezuelan equine encephalitis virus strain TC-83 and yellow fever virus strain 17-D; any vaccine strain described in Section 78.1 of Subpart A of Part 78 of Subchapter C of Chapter 1 of Title 9 of the Code of Federal Regulations, or any successor provisions, and any toxin for medical use, inactivated for use as vaccines, or toxin preparation for biomedical research use at a median lethal dose for vertebrates of more than 100 ng/kg, as well as any national standard toxin required for biologic potency testing as described in Part 113 (commencing with Section 113.1) of Subchapter E of Chapter 1 of Title 9 of the Code of Federal Regulations, or any successor provisions. (2) For the purposes of this section, no person shall be deemed to be in possession of an agent if the person is naturally exposed to, or innocently infected or contaminated with, the agent. (d) Any peace officer who encounters any of the restricted agents mentioned above shall immediately notify and consult with a local public health officer to ensure proper consideration of any public health risk. (e) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment. SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. SEC. 5. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to provide for immediate authority to effectively address the use or threatened use of weapons of mass destruction in California, it is necessary that this act take effect immediately.