December 11, 2001

Today we are considering bipartisan legislation on a matter of national importance – our preparedness against bioterrorism. We all know why legislation is needed, and why it is needed now. That urgency has led Chairman Tauzin, me, and many members of our Committee to work together over the past several weeks to develop balanced legislation that could be enacted quickly. This is not the final word on these matters, but it is an excellent beginning.

The Act authorizes funds for planning, preparation, and response activity across the board, with special emphasis on the state and local level. The resources provided in this bill will go directly and quickly to those in the front lines who need them, including our frayed public health network and our first responders. In particular, I want to commend our Subcommittee Ranking Member Sherrod Brown for his efforts in rebuilding our Nation’s public health system. Also, thanks to the work of Representative Harman and many others, the Centers for Disease Control and Prevention (CDC) receives crucial support for its facilities and its capacity to respond to public health emergencies.

The bill also has important new protections for the Nation’s food supply, an area of particular and longstanding concern to me and the gentleman from Ohio [Mr. Brown]. We provide new inspection resources for imported food, but these are only a down payment on what will ultimately be necessary. New authorities, including registration and detention, will help the Secretary manage imports more efficiently and effectively. I look forward to working with the Chairman next year to assess ongoing food safety vulnerabilities and the sufficiency of this legislation.

There are many other excellent provisions, including improvement of drinking water supply safety and tighter controls on dangerous biological agents. These are all important steps, and they are steps that should be taken now.

This bill has been developed in the finest bipartisan tradition of the Committee on Energy and Commerce, although under more severe time constraints than any of us would have preferred. I thank Chairman Tauzin, and I also thank all the members of the Committee for their hard work and their cooperation as this process has gone forward. This is a result that we can all be proud of, and I urge all members to support the bill.

Mr. Speaker, I would like to provide a further explanation of various provisions of the bill.

Title III, Subtitle A -- Protection of Food Supply, addresses existing deficiencies in the Nation’s food safety infrastructure and takes appropriate steps to protect the Nation’s food supply from new threats of terrorism. In particular, it authorizes new powers and $100 million to the Food and Drug Administration (FDA) so it can increase and improve inspections of imported food at the 307 different U.S. ports of entry. With the additional funds and authorities in this bill, FDA should be equipped to inspect about 2% of all imported food shipments. While this remains significantly less than FDA’s recommendation to inspect 10% of all imported food shipments, this legislation is an important downpayment.

The subtitle also provides for permissive debarment of scofflaw food importers, requires prior notice of shipments, provides administrative detention authority, requires registration and recordkeeping, and bars port shopping. Vigorous and targeted use of these new authorities should enable the Secretary to mitigate problems caused by too few inspectors.

For example, under this subtitle the Secretary must possess credible evidence or information indicating that a specific shipment or article of food presents a serious health threat to exercise his full detention authority. However, the bill establishes a broader, less-stringent standard for the Secretary to exercise a more limited temporary hold authority. Under the temporary hold provision, the Secretary need only have credible evidence or information indicating that an article of food, not a specific article of food, presents a serious health threat. If, for example, the FDA is in possession of credible evidence or information indicating that a category of food or food from a certain geographical region presents such a threat, the Secretary may use this authority to temporarily hold shipments or articles of food (up to 24 hours) based on that information. This will enable the Secretary to appropriately dispatch FDA resources to gather credible evidence or information (based upon FDA inspection, examination or investigation) about specific shipments or articles of food. Once FDA has such evidence or information, the Secretary may then detain any such shipments or articles of food under the detention authority (up to 30 days). The temporary hold authority is intended to function as an investigative tool that enables FDA to use its detention authority, and its resources, more effectively. Accordingly, the circumstances under which temporary hold authority can be invoked are broader than those under which detention authority can be invoked.

Title III, Subtitle B -- Protection of Drug Supply, includes Section 312, which requires additional information regarding import components intended for use in export products. This section does not change any definitions of regulated articles or the scope of regulation of those articles as set forth in the Federal Food, Drug, and Cosmetic Act (FFDCA) and its implementing regulations. Further, it is not the intent of this section for the Secretary of Treasury to engage in a new rulemaking to determine the requirement for bonds for goods imported under section 801(d) (3) of the FFDCA. Existing requirements for the bonding of goods imported for further processing and export should be applied. Finally, certificates of analysis are not required if the only chemical or biological component of the good imported under 801(d)(3) is de minimus, incidental, and poses no danger to human or animal health.

Title IV -- Drinking Water Security and Safety, adds a new section 1433 to the Safe Drinking Water Act that requires community water systems to conduct assessments of the vulnerability of its system to a terrorist attack. Sandia National Laboratories, under a contract with the Environmental Protection Agency (EPA), has developed a new methodology for assessing and improving the security of drinking water systems. Under Section 1433 vulnerability assessments should include comprehensive site characterizations, a determination of the consequences of intentional acts or terrorist attacks, and an analysis of the use, storage, or handling of various chemicals to see whether a substitution to less dangerous chemicals will enhance the safety and health of the public in the case of an attack. For example, many drinking water systems are switching away from liquid chlorine to other chemicals that minimize the risk of an airborne toxic plume in case of a tank explosion. Further, the term "physical barriers" should be interpreted to include "buffer zones" to a physical attack.

Section 1433 also requires that emergency response plans be prepared or revised by community water systems after the vulnerability assessments. In FY 2002, the bill authorizes $120 million to assist water systems in conducting vulnerability assessments and preparing emergency response plans. This funding is available to also provide financial assistance to water systems for basic security enhancements and to address significant threats to public health. Basic security enhancements of critical importance include management systems, operating procedures, re-keying locks, buffer zones, cameras, fencing, hardening of storage tanks, equipment for back flow monitoring, security screening of contractor support services, and intrusion alert systems.

The bill charges the EPA, working with other agencies such as CDC and the FBI, to provide water systems with a consistent definition of the range of threats facing a system. This will help ensure that quality vulnerability assessments are conducted.

Title IV also contains amendments to Section 1432 of the Safe Drinking Water Act to increase the criminal penalties for tampering or threatening to tamper with a public drinking water system.

Finally, the bill amends Section 1431 of the Safe Drinking Water Act to provide new authority to the Administrator to take actions to assure the safety of the public and protect supplies of drinking water in circumstances of a threatened or potential terrorist attack at a community water system which may present an imminent and substantial endangerment to the health of persons.

The term "potential terrorist attack" should be interpreted in the context of the President’s announcements that the United States is engaged in a war against terrorism and faces "continuing and immediate threats of further attacks." Senior government officials have repeatedly warned that critical infrastructure facilities should remain on a high state of alert due to the possibility of a terrorist attack. Critical infrastructure protection is an issue of importance to economic and national security. Presidential Decision Directive 63 released in May 1998 identified water supply as one of the 12 areas critical to the functioning of the country.

The Government has a responsibility to protect our citizens, and that responsibility begins with homeland security. Where the Administrator receives information that critical community water system infrastructures, such as a utility pumping system or chemical storage tanks, are vulnerable to potential terrorist attack that may present an imminent and substantial endangerment he or she may use the authority provided by Section 1431 to protect the health and safety of the public or prevent the disruption of drinking water supplies.