The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“COMBATING MILITARY COUNTERFEITS” mentioning the U.S. Dept. of Commerce was published in the Senate section on pages S4173-S4174 on June 29, 2011.
The publication is reproduced in full below:
COMBATING MILITARY COUNTERFEITS
Mr. WHITEHOUSE. Madam President, our Nation asks a lot of our troops. In return, we must give them the best possible equipment to fulfill their vital missions and come home safely. We have a powerful obligation to them to ensure the proper performance of weapons systems, body armor, aircraft parts, and countless other mission-critical products.
Today, however, America's military faces a significant and growing threat from counterfeit products entering the military supply chain.
I rise to speak about a bill I have introduced with Senator McCain, Senator Graham, and Senator Coons: the Combating Military Counterfeits Act of 2011. This bill will enhance the ability of prosecutors to keep counterfeit goods out of the military supply chain. In so doing it will help protect America's Armed Forces from the risk of defective equipment.
These counterfeit products do not meet military standards. As a result, they put troops' lives at risk, compromise military readiness, and cost the country enormous sums in replacement costs.
In the case of microelectronics, counterfeit parts also provide an avenue for cybersecurity threats to infiltrate military systems, possibly enabling hackers to track or even disable crucial national security applications.
With troops from Rhode Island and all over the United States serving overseas in Iraq and Afghanistan, we cannot accept criminals selling fake versions of products used by our troops. Unfortunately, however, this unacceptable threat to troop safety and national security is growing.
A report by the Government Accountability Office provides examples that demand stiff criminal punishment. It explains that the Defense Department found out in testing that what it thought was Kevlar body armor was in fact nothing of the sort and could not protect our troops the way proper Kevlar can. Our troops going out on patrol in fake body armor is simply unacceptable.
In another example, a supplier sold the Defense Department a part that it falsely claimed was a $7,000 circuit that met the specifications of a missile guidance system. Military grade chips are called that for a reason: they are required to withstand extreme temperature, force, and vibration. Chips that don't meet those specifications are prone to fail; for example, when a jet is at high altitude, when a missile is launching, or when a GPS unit is out in the rugged field. The possible consequences of such equipment failing are dire.
A January 2010 study by the Commerce Department quoted a Defense Department official as estimating that counterfeit aircraft parts were
``leading to a 5 to 15 percent annual decrease in weapons system reliability.''
The Commerce Department study, which surveyed military manufacturers, contractors, and distributors, reported approximately 2\1/2\ times as many incidents of counterfeit electronics in 2008 as in 2005. The high price of military grade products is going to attract more and more counterfeiters.
On a related matter, one source of the problem has been the often illegal dumping of U.S. electronic waste in countries such as China. Business Week reported in 2010 that used computer chips from old personal computers are fraudulently remarked in China as ``military grade'' chips and sold to U.S. military suppliers. A bill I introduced last week, the Responsible Electronics Recycling Act, would help address that issue by cracking down on the profligate dumping of electronic waste.
We should also evaluate this combating military counterfeits bill in the context of the relentless cyber attacks America weathers every day. The chip might not only be counterfeit, it might be the carrier for dangerous viruses and malware that may create windows our enemies can enter to sabotage our military equipment or to steal our military secrets.
I applaud those of my colleagues who have worked with the Department of Defense to ensure that it can keep counterfeits out of the supply chain.
I particularly appreciate the leadership of Chairman Carl Levin and Ranking Member John McCain of the Armed Services Committee. I am also pleased that the administration, and particularly its intellectual property enforcement coordinator, Victoria Espinel, is working hard to protect our military from counterfeits. I am also pleased that the National Intellectual Property Rights Coordination Center recently began Operation Chain Reaction, a new initiative targeting counterfeit items entering the military supply chain.
I strongly believe that strengthened criminal provisions should be part of our strategy going forward. As a former U.S. attorney I know the significant deterrent effect criminal sanctions can provide.
The Department of Justice has a vital role to play in using criminal investigations and prosecutions to identify and deter trafficking in counterfeit military goods.
To that end, the administration has endorsed increasing penalties for trafficking in counterfeit military goods as part of recent recommendations to Congress for better protecting American intellectual property. I am glad the administration has recognized the need for legislation, and I look forward to working with them to see the necessary changes made.
Our laws currently do not impose any special punishment for trafficking in counterfeit military goods. 18 U.S.C, section 2320, the counterfeit trafficking statute, provides heightened penalties for trafficking and counterfeits that result in bodily injury or death. But out on the battlefield it is not clear that the part will ever be recovered, and it is impossible sometimes to tell them the counterfeit caused the bodily injury or death.
As a result, traffickers in military counterfeits are less likely to face penalties that reflect the unacceptable risk their counterfeits impose on our soldiers, our military readiness, our cybersecurity, and our national security.
The legislation I am introducing today with Senators McCain, Graham, and Coons addresses this inadequacy in our laws. I urge my colleagues to join me in seeing it passed into law soon. Traffickers should pay a heavy price if they knowingly sell the military a piece of counterfeit body armor that could fail in combat, a counterfeit missile control system that could short-circuit at launch, or a counterfeit GPS that could fail on the battlefield. Our troops deserve Kevlar that is Kevlar, and military grade chips that are military grade.
By creating an enhanced offense for an individual who traffics in counterfeits and knows that the counterfeit product either is intended for military use or is identified as meeting military standards, this bill will help. It doubles the statutory maximum penalty for such offenses, and it directs the sentencing commission to update the sentencing guidelines as appropriate to reflect Congress's intent that trafficking in counterfeit military items be punished sufficiently to deter this wrongful endangerment of our servicemembers.
The bill targets only particularly malicious offenders--those who already are guilty of trafficking in counterfeit goods and know they are selling military counterfeits.
This approach means the bill will not affect legitimate military contractors who might be unaware that a counterfeit chip has been entered into one of their products. It will not apply to makers of products that unintentionally fall short of military specifications. This bill is intended to help military suppliers by deterring the criminals who sell counterfeits to them or to their subcontractors. Manufacturers, such as the many high-tech innovators in Rhode Island, will actually benefit from the protection of their intellectual property.
I am grateful to have the support of the Chamber of Commerce, the Semiconductor Industry Association, the International Anti-
Counterfeiting Coalition, and others. I look forward to working with them and other interested stakeholders to make this legislation as effective as possible at deterring this particularly reprehensible form of criminal activity.
Let me close by thanking Senator Graham, Senator McCain, and Senator Coons for joining me in introducing this bill today. As my colleagues know, Senator McCain and Senator Graham both have long stood out as champions for our troops. Senator Coons has already become a staunch defender of our national security and our Nation's intellectual property.
I very much look forward to working with them and other colleagues on this important bill.
All of us in the Senate have the privilege of visiting with and supporting our troops. We all know the sacrifices they make for our country. We all want to do everything we can to ensure that their equipment functions properly and that counterfeits do not compromise our Nation's military readiness or security. Passing the Combating Military Counterfeits Act of 2011 will be a valuable step toward these important goals.
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