ACTS OF THE 2001-2002 VERMONT LEGISLATURE

NO. 137. AN ACT RELATING TO CRIMES AND PROCEDURES INVOLVING TERRORISM.

(S.298)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. SHORT TITLE

This act shall be known as, and may be cited as, the Vermont Public Safety Act of 2002.

Sec. 2. STATEMENT OF PURPOSE

(a) The events of September 11, 2001 require the State of Vermont to have the legal means to respond to acts of terrorism against its citizens. Although such attacks remain unlikely, Vermont should have the ability to protect the public health and safety of its citizens in state courts under state law in the event that terrorist acts occur here. Vermont will be best able to work with other states and the federal government to efficiently and effectively prosecute these crimes if a statutory scheme is in place criminalizing certain acts of terrorism. A Vermont law will achieve this goal by providing a necessary complement to state and federal laws in the fight against terrorism, and by better protecting all citizens from terrorist acts.

(b) It is not the intent of the General Assembly, however, that this bill in any way infringe on our constitutionally-guaranteed rights, such as the freedoms of speech, religion, assembly and association. Sacrificing these hard-won rights in the name of fighting terrorism would play into the hands of terrorists by compromising the very values we seek to defend.

(c) The Vermont Public Safety Act of 2002 is, therefore, intended to provide the state with tools to protect it and its citizens against terrorism, to allow Vermont to cooperate with other states and the federal government to prevent acts of terrorism, and to achieve these goals without infringing upon the constitutional and civil rights which make both our nation and our state so worth defending.

Sec. 3.  13 V.S.A. chapter 76 is added to read:

CHAPTER 76.  WEAPONS OF MASS DESTRUCTION

§ 3501. DEFINITIONS

(a) As used in this chapter:

(1)  “Chemical warfare agents” means:

(A)  Any weaponized toxic or poisonous chemical, including the following agents or any analog of the following agents:

(i)  Nerve agents, including Tabun (GA), Sarin (GB), Soman (GD), GF, and VX.

(ii)  Choking agents, including Phosgene (CG) and Diphosgene (DP).

(iii)  Blood agents, including Hydrogen Cyanide (AC), Cyanogen Chloride (CK), and Arsine (SA).

(iv)  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.

(B)  A dangerous chemical or hazardous material generally utilized in an industrial or commercial process when a person knowingly and intentionally utilizes the material with the intent to cause harm, and the use places persons at risk of serious bodily injury or death, or endangers the environment.

(2)  “Health care provider” means a person, partnership, corporation, facility or institution, licensed, certified or authorized, by law, to provide professional health care service in this state to an individual during that individual’s medical care, treatment or confinement.

(3)  “Hoax weapon” means any substance, compound, or other item intended to convey the physical appearance or chemical properties of a weapon of mass destruction or asserted to contain a weapon of mass destruction, which is not a weapon of mass destruction or does not contain a weapon of mass destruction.

(4)  “Law enforcement agency” means:

(A)  A federal law enforcement agency, including the Bureau of Alcohol, Tobacco and Firearms, the Federal Bureau of Investigation, Military Police or Military Criminal Investigative Division, United States Marshals Service, Secret Service, Federal Emergency Management Agency, or the Department of Defense Threat Reduction Agency.

(B)  One of the following Vermont law enforcement agencies:

(i)  The department of public safety.

(ii)  A municipal police department.

(iii)  A sheriff’s department.

(iv)  The attorney general’s office.

(v)  A state’s attorney’s office.

(vi)  The capitol police department.

(5)  “Nuclear or radiological agents” means 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 container designed to release radiological material as a weapon without an explosion.

(6)  “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.

(7)  “Weapon of mass destruction” means a chemical warfare agent, weaponized biological or biologic warfare agent, nuclear agent, or radiological agent.

(8)  “Weaponization” means the deliberate processing, preparation, packaging, or synthesis of any substance or agent for use as a weapon or munition.  “Weaponized agents” means those agents or substances that have been prepared for dissemination through any explosive, thermal, pneumatic, mechanical or other means.

(9)  “Weaponized biological or biologic warfare agents” means:

(A)  weaponized pathogens, including bacteria, viruses, rickettsia, yeasts, or fungi;

(B)  genetically-engineered pathogens;

(C)  weaponized toxins;

(D)  weaponized vectors; and

(E)  weaponized endogenous biological regulators (EBRs).

(b)  The lawful use of chemicals for legitimate mineral extraction, industrial, agricultural, or commercial purposes is not proscribed by this chapter.

§ 3502.  Possession and Use of Weapons of Mass

              Destruction

(a)  A person who knowingly and without lawful authority possesses, develops, manufactures, produces, transfers, acquires, or stockpiles any weapon of mass destruction shall be imprisoned not more than 20 years or fined not more than $100,000.00, or both.

(b)  A person who uses or directly employs against other persons a weapon of mass destruction in a form that may cause disabling illness or injury in human beings shall be imprisoned not less than 20 years nor more than life and fined not more than $250,000.00.

(c)  A person who uses a weapon of mass destruction in a form that may cause widespread damage to or disruption of water or food supplies shall be imprisoned not less than five years nor more than 30 years and fined not more than $250,000.00.

(d)  A person who uses a weapon of mass destruction against livestock or crops with the intent to cause widespread and substantial damage to livestock or crops shall be imprisoned not more than 30 years and fined not more than $250,000.00.

(e)  A person who uses a weapon of mass destruction in a form that may cause widespread and significant damage to public or private property shall be imprisoned not more than 30 years and fined not more than $250,000.00.

(f)  A person who uses recombinant technology or any other biological advance to create new pathogens or more virulent forms of existing pathogens for the purpose of creating a weapon of mass destruction shall be imprisoned not more than 20 years or fined not more than $250,000.00, or both.

(g)  A person who knowingly and intentionally places a hoax weapon in any public place, building, house, residence, facility of public transport, vehicular conveyance, train, ship, boat, aircraft, dam or reservoir for storing water, shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(h)  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 section.

(i)  Nothing in this section shall be construed to limit or restrict prosecution under any other applicable laws.

§ 3503.  THREATS

(a)  No person shall communicate a threat to use a weapon of mass destruction, knowing that the threat is likely to cause:

(1)  evacuation of a building, place of assembly, or facility of public transport; or

(2)  a person to fear serious bodily injury.

(b)  A person who violates this section shall:

(1)  For a first offense, be imprisoned for not more than two years or fined not more than $5,000.00, or both.

(2)  For a second or subsequent offense, be imprisoned for not more than five years or fined not more than $10,000.00, or both.

(c) It shall not be a defense to a prosecution under this section that the defendant did not have the capability or means of committing the specified offense or that the threat was not made to a person who was a subject thereof. The foregoing shall not impair a defendant’s right to assert a defense based upon insanity or diminished capacity.

(d)  Nothing in this section shall be construed to limit or restrict prosecution under any other applicable laws.

§ 3504. Reporting ILLNESSES, DISEASES, INJURIES AND DEATHS ASSOCIATED WITH WEAPONS OF MASS DESTRUCTION

(a)(1) Illness, disease, injury or death. A health care provider shall report all cases of persons who exhibit any illness, disease, injury or death identified by the department of health as likely to be caused by a weapon of mass destruction, which may include illnesses, diseases, injuries or deaths which:

(A) can result from bioterrorism, epidemic or pandemic disease, or novel and highly fatal infectious agents or biological toxins, and might pose a risk of a significant number of human fatalities or incidents of permanent or long-term disability; or

(B) may be caused by the biological agents listed in 42 C.F.R. Part 72, Appendix A.

(2) This section does not authorize, nor shall it be interpreted to authorize, unreasonable searches and seizures by public health care employees; nor does this section authorize performance of diagnostic tests or procedures for the specific purpose of incriminating patients, unless the patient consents to such specific tests or procedures after notice of his or her constitutional rights and knowing waiver of them.

(3) Health care providers who make good faith reports to the department of health under this section shall be immune from prosecution, suit, administrative or regulatory sanctions for defamation, breach of confidentiality or privacy, or any other cause of action based on such reports or errors contained in such reports.

(b) Pharmacists. A pharmacist shall report any unusual or increased prescription requests, unusual types of prescriptions, or unusual trends in pharmacy visits that may result from bioterrorist acts, epidemic or pandemic disease, or novel and highly fatal infectious agents or biological toxins, and might pose a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability. Prescription-related events that require a report include, but are not limited to:

(1) an unusual increase in the number of prescriptions to treat fever, respiratory or gastrointestinal complaints;

(2) an unusual increase in the number of prescriptions for antibiotics;

(3) an unusual increase in the number of requests for information on over-the-counter pharmaceuticals to treat fever, respiratory or gastrointestinal complaints; and

(4) any prescription that treats a disease that is relatively uncommon and may be the result of bioterrorism.

(c)(1) Manner of reporting. A report made pursuant to subsection (a) or (b) of this section shall be made in writing within 24 hours to the commissioner of health, or designee.

(2) The report shall include as much of the following information as is available:

(A) The patient’s name, date of birth, sex, race and current address (including city and county).

(B) The name and address of the health care provider, and of the reporting individual, if different.

(3) The department of health shall establish a form, which may be filed electronically, for use in filing the reports required by this subsection.

(d)(1) Animal diseases. Every veterinarian, livestock owner, veterinary diagnostic laboratory director or other person having the care of animals, shall report animals having or suspected of having any disease that can result from bioterrorism, epidemic or pandemic disease, or novel and highly fatal infectious agents or biological toxins, and might pose a risk of a significant number of human and animal fatalities or incidents of permanent or long-term disability.

(2) A report made pursuant to this subsection shall be made, in writing, within 24 hours to the commissioner of health or designee, and shall include as much of the following information as is available: the location or suspected location of the animal, the name and address of any known owner, and the name and address of the reporting individual.

(e) Laboratories. For purposes of this section only, the term “health care provider” shall also include out-of-state medical laboratories that have agreed to the reporting requirements of this state. Results must be reported by the laboratory that performs the test, but an in-state laboratory that sends specimens to an out‑of‑state laboratory is also responsible for reporting results.

(f) Enforcement. The department of health may enforce the provisions of this section in accordance with chapters 3 and 11 of Title 18.

(g) Disclosure. Information collected pursuant to this section and in support of investigations and studies undertaken by the commissioner in response to reports made pursuant to this section shall be privileged and confidential. This subsection shall not apply to the disclosure of information to a law enforcement agency for a legitimate law enforcement purpose.

(h) Rulemaking. The commissioner of health shall, after consultation with the commissioner of public safety, adopt rules to implement this section. The rules adopted pursuant to this subsection shall include methods to ensure timely communication from the department of health to the department of public safety.

Sec. 4. REPORT

The administration shall, after studying the issue collaboratively with the attorney general, the department of state’s attorneys, the defender general, the department of health, health care professionals and the American Civil Liberties Union of Vermont, report to the senate and house committees on judiciary on or before December 1, 2002 on whether there is a need for additional legislation in Vermont to address threats to public safety posed by terrorism.

Approved: June 12, 2002