To reform Department of Defense transfers of personal property to law enforcement agencies.

SA 2252. Mr. SCHATZ (for himself, Ms. Murkowski, Ms. Harris, and Mr.
Paul) submitted an amendment intended to be proposed by him to the bill
S. 4049, to authorize appropriations for fiscal year 2021 for military
activities of the Department of Defense, for military construction, and
for defense activities of the Department of Energy, to prescribe
military personnel strengths for such fiscal year, and for other
purposes; which was ordered to lie on the table; as follows:

At the appropriate place, insert the following:

SEC. __. REFORM AND OVERSIGHT OF DEPARTMENT OF DEFENSE
TRANSFER OF PERSONAL PROPERTY TO LAW
ENFORCEMENT AGENCIES.

(a) In General.--Section 2576a of title 10, United States
Code, is amended--
(1) in subsection (a)(1), in the matter preceding
subparagraph (A), by striking ``subsection (b)'' and
inserting ``the provisions of this section'';
(2) in subsection (b)--
(A) in paragraph (5), by striking ``and'' at the end;
(B) in paragraph (6), by striking the period and inserting
a semicolon; and
(C) by adding at the end the following new paragraphs:
``(7) the recipient, on an annual basis, certifies that if
the recipient determines that the property is surplus to the
needs of the recipient, the recipient will return the
property to the Department of Defense;
``(8) the recipient submits to the Department of Defense a
description of how the recipient expects to use the property;
``(9) with respect to a recipient that is not a Federal
agency, the recipient certifies to the Department of Defense
that the recipient notified the local community of the
request for property under this section by--
``(A) publishing a notice of such request on a publicly
accessible internet website;
``(B) posting such notice at several prominent locations in
the jurisdiction of the recipient; and
``(C) ensuring that such notices were available to the
local community for a period of not less than 30 days;
``(10) with respect to a recipient that is not a Federal
agency, the recipient submits to the Department of Defense a
description of the training courses or certifications
required for use of transferred property;
``(11) with respect to a recipient that is a local law
enforcement agency, the recipient has received the approval
of the city council or other local governing body to acquire
the property sought under this section; and
``(12) with respect to a recipient that is a State law
enforcement agency, the recipient has received the approval
of the appropriate state governing body to acquire the
property sought under this section.'';
(3) by striking subsections (e) and (f); and
(4) by adding at the end the following new subsections:
``(e) Annual Certification Accounting for Transferred
Property.--(1) For each fiscal year, the Secretary shall
submit to Congress certification in writing that each Federal
or State agency to which the Secretary has transferred
personal property under this section--
``(A) has provided to the Secretary documentation
accounting for all controlled property, including arms and
ammunition, that the Secretary has transferred to the agency,
including any item described in subsection (f)(1) so
transferred before the date of the enactment of the National
Defense Authorization Act for Fiscal Year 2021; and
``(B) with respect to a non-Federal agency, carried out
each of paragraphs (5) through (9) of subsection (b).
``(2) If the Secretary cannot provide a certification under
paragraph (1) for a Federal or State agency, the Secretary
may not transfer additional property to that agency under
this section.
``(f) Annual Report on Excess Property.--The Secretary
shall submit to Congress each year, before making any
personal property available for transfer under this section
in that year, report setting forth a description of the
property to be transferred, together with a certification
that the transfer of the property would not violate this
section or any other provision of law.
``(g) Limitations on Transfers.--(1) The Secretary may not
transfer to a Federal, Tribal, State, or local law
enforcement agency under this section the following:
``(A) Bayonets, grenade launchers, grenades (excluding stun
and flash-bang), explosives, and firearms of .50 caliber or
higher and ammunition of 0.5 caliber or higher.
``(B) Tracked combat vehicles.
``(C) Weaponized drones.
``(D) Asphyxiating gases, including those comprised of
lachrymatory agents, and analogous liquids, materials or
devices.
``(E) Items in the Federal Supply Class of banned items.
``(2) The limitations under this subsection shall also
apply with respect to the transfer of previously transferred
property of the Department of Defense from one Federal or
State agency to another such agency.
``(3) The Secretary shall require that equipment
transferred under this section shall be returned upon a
finding that the equipment has been used to conduct actions
against citizens of the United States that infringe upon the
rights of the citizens under the First Amendment to the
Constitution of the United States to assemble peaceably or to
petition the Government for redress of grievances.
``(4) The Secretary shall prohibit the transfer of
equipment to a Federal or State agency for a period of 5
years upon a finding that equipment transferred under this
section to the Federal or State agency has been used to
conduct actions against United States citizens that infringe
upon the rights of the citizens under the First Amendment to
the Constitution of the United States to assemble peaceably
or to petition the Government for redress of grievances.
``(5) The Secretary shall require, as a condition of any
transfer of property under this section, that--
``(A) if the Department of Justice opens an investigation
into a Federal or State agency for violation of civil
liberties, the Secretary shall pause all pending or future
transfers to such agency; and

[[Page S3705]]

``(B) property shall be returned upon a finding of
responsibility as a result of an investigation described in
subparagraph (A) or otherwise for a finding of responsibility
for widespread abuses of civil liberties.
``(h) Conditions for Extension of Program.--Notwithstanding
any other provision of law, amounts authorized to be
appropriated or otherwise made available for any fiscal year
may not be obligated or expended to carry out this section
unless the Secretary submits to the appropriate committees of
Congress a certification, for the preceding fiscal year,
that--
``(1) each recipient agency that has received personal
property under this section has--
``(A) demonstrated full and complete accountability for all
such property, in accordance with paragraph (2) or (3), as
applicable; or
``(B) been suspended or terminated from the program
pursuant to paragraph (4);
``(2) with respect to each non-Federal agency that has
received property under this section, the State Coordinator
responsible for each such agency has verified that the State
Coordinator or an agent of the State Coordinator has
conducted an in-person inventory of the property transferred
to the agency and that all such property was accounted for
during the inventory or that the agency has been suspended or
terminated from the program pursuant to paragraph (4);
``(3) with respect to each Federal agency that has received
property under this section, the Secretary or an agent of the
Secretary has conducted an in-person inventory of the
property transferred to the agency and that all such property
was accounted for during the inventory or that the agency has
been suspended or terminated from the program pursuant to
paragraph (4);
``(4) the eligibility of any agency that has received
property under this section for which all of such property
was not accounted for during an inventory described in
paragraph (2) or (3), as applicable, to receive property
transferred under this section has been suspended or
terminated;
``(5) each State Coordinator has certified, for each non-
Federal agency located in the State for which the State
Coordinator is responsible that--
``(A) the agency has complied with all requirements under
this section; or
``(B) the eligibility of the agency to receive property
transferred under this section has been suspended or
terminated; and
``(6) the Secretary has certified, for each Federal agency
that has received property under this section that--
``(A) the agency has complied with all requirements under
this section; or
``(B) the eligibility of the agency to receive property
transferred under this section has been suspended or
terminated.
``(i) Approval by Law Required for Transfer of Property Not
Previously Transferrable.--(1) In the event the Secretary
proposes to make available for transfer under this section
any personal property of the Department of Defense not
previously made available for transfer under this section,
the Secretary shall submit to the appropriate committees of
Congress a report setting forth the following:
``(A) A description of the property proposed to be made
available for transfer.
``(B) A description of the conditions, if any, to be
imposed on use of the property after transfer.
``(C) A certification that transfer of the property would
not violate a provision of this section or any other
provision of law.
``(2) The Secretary may not transfer any property covered
by a report under this subsection unless authorized by a law
enacted by Congress after the date of the receipt of the
report by Congress.
``(j) Annual Certification Accounting for Transferred
Property.--(1) The Secretary shall submit to the appropriate
committees of Congress each year a certification in writing
that each recipient to which the Secretary has transferred
personal property under this section during the preceding
fiscal year--
``(A) has provided to the Secretary documentation
accounting for all property the Secretary has previously
transferred to such recipient under this section; and
``(B) has complied with paragraphs (5) and (6) of
subsection (b) with respect to the property so transferred
during such fiscal year.
``(2) If the Secretary cannot provide a certification under
paragraph (1) for a recipient, the Secretary may not transfer
additional property to such recipient under this section,
effective as of the date on which the Secretary would
otherwise make the certification under this subsection, and
such recipient shall be suspended or terminated from further
receipt of property under this section.
``(k) Quarterly Reports on Use of Controlled Equipment.--
Not later than 30 days after the last day of a fiscal
quarter, the Secretary shall submit to Congress a report on
any uses of controlled property transferred under this
section during that fiscal quarter.
``(l) Reports to Congress.--Not later than 30 days after
the last day of a fiscal year, the Secretary shall submit to
Congress a report on the following for the preceding fiscal
year:
``(1) The percentage of equipment lost by recipients of
property transferred under this section, including specific
information about the type of property lost, the monetary
value of such property, and the recipient that lost the
property.
``(2) The transfer of any new (condition code A) property
transferred under this section, including specific
information about the type of property, the recipient of the
property, the monetary value of each item of the property,
and the total monetary value of all such property transferred
during the fiscal year.
``(m) Publicly Accessible Website on Transferred Controlled
Property.--(1) The Secretary shall create and maintain a
publicly available internet website that provides information
on the controlled property transferred under this section and
the recipients of such property.
``(2) The contents of the internet website required under
paragraph (1) shall include all publicly accessible
unclassified information pertaining to the request, transfer,
denial, and repossession of controlled property under this
section, including--
``(A) a current inventory of all controlled property
transferred to Federal and State agencies under this section,
listed by--
``(i) the name of the Federal agency, or the State, county,
and recipient agency;
``(ii) the item name, item type, and item model;
``(iii) the date on which such property was transferred;
and
``(iv) the current status of such item;
``(B) all pending requests for transfers of controlled
property under this section, including the information
submitted by the Federal and State agencies requesting such
transfers;
``(C) a list of each agency suspended or terminated from
further receipt of property under this section, including any
State, county, or local agency, and the reason for and
duration of such suspension or termination; and
``(D) all reports required to be submitted to the Secretary
under this section by Federal and State agencies that receive
controlled property under this section.
``(3) The Secretary shall update on a quarterly basis the
contents of the internet website required under paragraph
(1), on which the contents of the Internet website described
in paragraph (2) shall be made publicly available in a
searchable format
``(n) Definitions.--In this section:
``(1) The term `appropriate committees of Congress' means--
``(A) the Committee on Armed Services and the Committee on
Homeland Security and Governmental Affairs of the Senate; and
``(B) the Committee on Armed Services and the Committee on
Oversight and Government Reform of the House of
Representatives.
``(2) The term `agent of a State Coordinator' means any
individual to whom a State Coordinator formally delegates
responsibilities for the duties of the State Coordinator to
conduct inventories described in subsection (g)(2).
``(3) The term `controlled property' means any item
assigned a demilitarization code of B, C, D, E, G, or Q under
Department of Defense Manual 4160.21-M, `Defense Materiel
Disposition Manual', or any successor document.
``(4) The term `State Coordinator', with respect to a
State, means the individual appointed by the governor of the
State to maintain property accountability records and oversee
property use by the State.''.
(b) Effective Date.--The amendments made by this subsection
shall take effect on the date of the enactment of this Act.
(c) Interagency Law Enforcement Equipment Working Group.--
(1) In general.--Not later than 60 days after the date of
enactment of this Act, the Secretary of Defense shall
establish an interagency Law Enforcement Equipment Working
Group (referred to in this subsection as the ``Working
Group'') to support oversight and policy development
functions for controlled equipment programs.
(2) Purpose.--The Working Group shall--
(A) examine and evaluate the Controlled and Prohibited
Equipment Lists for possible additions or deletions;
(B) track law enforcement agency controlled equipment
inventory;
(C) ensure Government-wide criteria to evaluate requests
for controlled equipment;
(D) ensure uniform standards for compliance reviews;
(E) harmonize Federal programs to ensure the programs have
consistent and transparent policies with respect to the
acquisition of controlled equipment by law enforcement
agencies;
(F) require after-action analysis reports for significant
incidents involving Federally provided or Federally funded
controlled equipment;
(G) develop policies to ensure that law enforcement
agencies abide by any limitations or affirmative obligations
imposed on the acquisition of controlled equipment or receipt
of funds to purchase controlled equipment from the Federal
Government and the obligations resulting from receipt of
Federal financial assistance;
(H) require State and local governing body to review and
authorize a law enforcement agency's request for or
acquisition of controlled equipment;
(I) require that law enforcement agencies participating in
Federal controlled equipment programs receive necessary
training regarding appropriate use of controlled equipment
and the implementation of obligations resulting from receipt
of Federal financial assistance, including training on the
protection of civil rights and civil liberties;

[[Page S3706]]

(J) provide uniform standards for suspending law
enforcement agencies from Federal controlled equipment
programs for specified violations of law, including civil
rights laws, and ensuring those standards are implemented
consistently across agencies; and
(K) create a process to monitor the sale or transfer of
controlled equipment from the Federal Government or
controlled equipment purchased with funds from the Federal
Government by law enforcement agencies to third parties.
(3) Composition.--
(A) In general.--The Working Group shall be co-chaired by
the Secretary of Defense, the Attorney General, and the
Secretary of Homeland Security.
(B) Membership.--The Working Group shall be comprised of--
(i) representatives of interested parties, who are not
Federal employees, including appropriate State, local, and
Tribal officials, law enforcement organizations, civil rights
and civil liberties organizations, and academics; and
(ii) the heads of such other agencies and offices as the
Co-Chairs may, from time to time, designate.
(C) Designation.--A member of the Working Group described
in subparagraph (A) or in subparagraph (B)(ii) may designate
a senior-level official from the agency represented by the
member to perform the day-to-day Working Group functions of
the member, if the designated official is a full-time officer
or employee of the Federal Government.
(D) Subgroups.--At the direction of the Co-Chairs, the
Working Group may establish subgroups consisting exclusively
of Working Group members or their designees under this
subsection, as appropriate.
(E) Executive director.--
(i) In general.--There shall be an Executive Director of
the Working Group, to be appointed by the Attorney General.
(ii) Responsibilities.--The Executive Director appointed
under clause (i) shall determine the agenda of the Working
Group, convene regular meetings, and supervise the work of
the Working Group under the direction of the Co-Chairs.
(iii) Funding.--

(I) In general.--To the extent permitted by law and using
amounts already appropriated, the Secretary shall fund, and
provide administrative support for, the Working Group
(II) Requirement.--Each agency shall bear its own expenses
for participating in the Working Group.

(F) Coordination with the department of homeland
security.--In general, the Working Group shall coordinate
with the Homeland Security Advisory Council of the Department
of Homeland Security to identify areas of overlap or
potential national preparedness implications of further
changes to Federal controlled equipment programs.
(4) Rule of construction.--Nothing in this subsection shall
be construed as creating any right or benefit, substantive or
procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other
person.
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