Senate Bill No. 208

(By Senator Snyder, Unger and Rowe)

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[Introduced January 15, 2002; referred to the Committee

on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article three-d, relating to reducing the threat of bioterrorism; establishing certification for research facilities or other entities that possess certain biological agents and toxins; providing for the secretary of health and human resources to limit possession and transfer of certain biological agents and toxins to certified entities; and establishing criminal and civil penalties for violations.

Be it enacted by the Legislature of West Virginia:

That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article three-d, to
read as follows:
ARTICLE 3D. WEST VIRGINIA BIOTERRORISM THREAT REDUCTION ACT.

§16-3D-1. Bioterrorism Threat Reduction Act.

This act may be cited as the "West Virginia Bioterrorism Threat Reduction Act."

§16-3D-2. Definitions.

When used in this article:

(a) "Biological agent" means any micro-organism, virus, infectious substance, or biological product designed or engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any microorganism, virus, infectious substance, or biological product, capable of causing:

(1) Death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism;

(2) Deterioration of food, water, equipment, supplies, or material of any kind; or

(3) Deleterious alteration of the environment.

(b) "Toxin" means the toxic material of plants, animals, microorganisms, viruses, fungi, or infectious substances, or a recombinant molecule, whatever its origin or method of production, including any poisonous substance or biological product engineered as a result of biotechnology produced by a
living organism; or any poisonous isomer or biological product, homology, or derivative of a poisonous substance or biological product.
§16-3D-3. List of selected biological agents and toxins to be published in the state register.

(a) The secretary of the department of health and human resources, in consultation with the secretary of military affairs and public safety, the attorney general and other state or federal officials, shall create and review annually a list of selected biological agents and toxins, the possession, control and transfer of which shall be regulated by provisions of this article. The secretary shall send notice of the new or updated list to the office of the secretary of state to be published in the state register annually.
(b) In determining whether to include a biological agent or toxin on the list established under subsection (a) of this section, the secretary shall consult with appropriate scientific experts, and shall consider:
(1) The effect on human health of exposure to each biological agent or toxin;
(2) The degree of contagiousness of each biological agent or toxin and the methods by which each biological agent or toxin is transferred to humans;
(3) The availability and effectiveness of vaccines and therapies to treat or prevent any illness resulting from infection by or exposure to each biological agent or toxin;
(4) The potential use of each biological agent or toxin in a bioterrorist attack on the civilian population; and
(5) Any other criteria that the secretary considers appropriate.
§16-3D-4. Secretary to establish and enforce standards and procedures governing possession, use and transfer of biological agents and toxins; certification process.

(a) The secretary shall establish and enforce standards and procedures governing the possession, use and transfer of selected biological agents and toxins as identified pursuant to section three of this article to protect the health and safety of the public, including safeguards to prevent access to those biological agents and toxins for use in domestic or international terrorism or for any other criminal purpose.
(b) The secretary shall establish a certification process for the possession, use and transfer of selected biological agents and toxins as identified pursuant to section three of this article, and is authorized to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code and to promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to effect the provisions of this article. The rules may provide for suspension and revocation of certification and other administrative remedies as considered necessary to protect the public health. The certification process shall be designed to prohibit any individual from knowingly possessing selected biological agents and toxins except as authorized by these rules.
§16-3D-5. Prohibited possession, use or transfer of biological agents or toxins; civil and criminal penalties.

(a) It is unlawful for a person or entity to knowingly possess, use or transfer to another person or entity a selected biological agent or toxin except as provided in this article and in accordance with legislative rules approved or emergency rules properly promulgated under this article. Any individual or entity who violates any provision of this article or legislative rules approved or emergency rules properly promulgated pursuant to this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than ten years or fined not less than one hundred dollars nor more than one thousand dollars, or both.
(b) Any person or entity who violates any provision of this article or the provisions of legislative rules approved or emergency rules properly promulgated under this article is subject to a civil penalty not to exceed five thousand dollars for each day of the violation to be recovered in a civil action either in the circuit court of the county in which the violation occurs or in the circuit court of Kanawha County. The secretary may also seek injunctive or other appropriate relief.
(c) Upon the request of the secretary, the attorney general or the prosecuting attorney in the county in which the violation occurs shall assist the secretary in any civil or criminal action or action for injunctive or other appropriate relief under this section.
(d) In any civil action brought pursuant to this section, the state or any agency of the state which prevails may be awarded costs, reasonable attorney fees and reasonable and necessary expenses of the state required to abate any threat to the public health resulting from the violation.
NOTE: The purpose of this bill is to reduce the threat of bioterrorism by authorizing the secretary of health and human resources to establish a certification process for research facilities or other entities that have a legitimate need to possess potentially dangerous biological agents and toxins, by limiting lawful possession and transfer of these agents and toxins to certified entities, and by establishing criminal and civil penalties for violations.

This article is new; therefore, strike-throughs and underscoring have been omitted.