felonious behavior that they had better not cross or even nibble around the edges of when it comes to self-styled "peaceful" or "defensive" research into biological weapons and biological warfare capabilities. Finally, such implementing legislation would certainly help assuage some of the serious concerns held by other state parties to the Convention about the purpose of the proposed aerosol test facility at the Dugway Proving Grounds and thus prevent the development of a de facto biological weapons race under the guise of "defensive" research. For all of these reasons then, I believe it would be extremely important for the United States Congress to adopt such strict implementing legislation immediately. Thank you very much for your kind consideration. It has been most appreciated. FAB/ba Yours very truly, Frum A. Bayle Francis A. Boyle and Program in Arms Control, Disarmament and International Security Counsel, Committee for Responsible Genetics FILE:ANTI-TER University of Illinois College of Law 209 Law Building 504 East Pennsylvania Avenue 217 333-0931 SUPPLEMENT TO THE TESTIMONY OF FRANCIS A. BOYLE July 26, 1989 EXCERPTED FROM THE NEED FOR UNITED STATES IMPLEMENTING LEGISLATION April 1, 1987 Francis A. Boyle Professor of International Law and Program in Arms Control, Disarmament and International Security The University of Illinois at Urbana-Champaign Counsel, The Committee for Responsible Genetics A.B. (Chicago: 1971), J.D. Magna Cum Laude (Harvard: 1976), A.M. and Ph.D. in Political Science (Harvard: 1978 and 1983) The Arms Export Control Act, 22 U.S.C.A. §§2751-2794, authorizes the President to control the export and import of "defense articles" and "defense services." 22 U.S.C.A. §2778. The designation of the various "defense articles" is provided in the United States Munitions List. 22 C.F.R. §121.1. "Biological agents" are designated on that List, along with "chemical agents." 22 C.F.R. §121.1 (category XIV). The term "defense articles" includes "models, mockups, and other such items which reveal technical data directly relating to the items designated." 22 C.F.R. §120.7. The term "defense service" incorporates the "furnishing of assistance, including training, to foreign persons in the design, engineering, development, production, processing, manufacture, use, [and] . . . operation . of defense articles, whether in the U.S. or abroad." 22 C.F.R. §120.8. These two terms are thus appropriately broad in coverage. In addition, the List encompasses equipment "for dissemination, detection, and identification of and defense against" biological agents, as well as "components, parts, accessories, attachments, and associated equipment specifically designed or modified" for such equipment. Unfortunately, the term "biological agent" is itself left completely unclarified. It is of little assistance to know that the restrictions of the Act govern the "furnishing of assistance" to "foreign persons" in the "design" of a biological agent, when the Act provides no clarification whatsoever as to what is meant by a "biological agent." The Munition List's lack of clarity as to "biological agents" is to be contrasted with the Munition List's relatively greater clarity regarding "chemical agents." The Munitions List does define a chemical agent as "a substance having military application which by its ordinary and direct chemical action produces a powerful physiological effect." 22 C.F.R. 121.7. In addition, numerous "chemical agents" are then specifically listed, according to their types of physiological effects and their chemical composition, although the listing is not exclusive. In contrast, "biological agents" are not defined, and examples are not specified, so that the scope of the Act's coverage is quite unknown. Even where particular items are deemed to be "biological agents," the Act often does not provide for governmental scrutiny and regulation of the research and/or manufacture of such agents. The regulations require registration with the Office of Munitions Control by all persons in the United States who export or manufacture defense articles and services. 22 C.F.R. §122.1. However, this registration requirement is riddled with exceptions. First, registration is not required for officers and employees of the United States government. Second, registration is not required for persons "whose activity is confined to the production of unclassified data only." Third, registration is not required for persons "who engage only in the fabrication of articles for experimental or scientific purposes, including research and development." 22 C.F.R. §122.1. In summary, the Arms Export Control Act does not satisfy the requirement in article IV of the Biological Weapons Convention that each state take the necessary measures to prohibit and prevent the development, production, and stockpiling of biological weapons and equipment. The United States Munitions List does refer to "biological agents," but that term is not clarified in any manner whatsoever. In addition, the registration requirement is so riddled with exceptions that all government officers and employees, as well as many private "research" firms, are exempt from even registering with the Office of Munitions Control under this Act. 3. The Export Administration Act of 1979 While the Arms Export Control Act governs the export of items designated on the United States Munitions List, the export of other items may be restricted under the Export Administration Act of 1979, 50 App. U.S.C.A. §§2401-2420. Pursuant to the latter authority, the Office of Export Administration (0.E.A.) maintains its own Commodity Control List. Exports may be prohibited or controlled for national security reasons, 50 App. U.S.C.A. §2404, or for foreign policy reasons, 50 App. U.S.C.A. §2405. The Commodity Control List includes those commodities subject to Department of Commerce export controls. 15 C.F.R. §399.1. Exports of commodities on that list may require "validated licenses" issued upon individual application to the 0.E.A., 15 C.F.R. §372, if those commodities are being exported to specified countries. Unfortunately, the 0.E.A.'s restrictions are also insufficient for the purpose of satisfying the United States' obligation under article IV of the Biological Weapons Convention, both because the Commodity Control List does not adequately describe those biological toxins, agents, equipment, etc. which are addressed by the Biological Weapons Convention, and because the restrictions generally apply only to exports to some countries. The Commodity Control List includes restrictions for exports of "viruses or viroids for human, veterinary, plant, or laboratory use, except hog cholera and attenuated or inactivated systems." 15 C.F.R. §399.1, Supp. 1, Group 9. In addition, the List includes "bacteria, fungi, and protozoa," as subject to specified exceptions in the List. Id. Apparently any other items addressed by the Biological Weapons Convention would not be subject to even the limited O.E.A. restrictions on exports of such Commodity Control List items. 4. Hazardous Material Transportation Act The Hazardous Material Transportation Act, 49 U.S.C.A. §§1800 et. seq., was enacted to "improve the regulatory and enforcement authority of the Secretary of Transportation to protect the nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." 49 U.S.C.A. §1801. This legislation will not "prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention" as required by article IV. While the Act does regulate transportation of "hazardous materials," the designation of a "hazardous material" is completely within the discretion of the Secretary of Transportation. 49 U.S.C.A. §1803. The materials so designated "may include . etiologic agents" which, under 49 C.F.R. §173.386 (1986), means "viable microorganisms, or their toxins, which may cause human disease," and is limited to the agents listed in 42 C.F.R. 72.3. Again, the Act prescribes a discretionary designation of hazardous materials by the Secretary of Transportation, while the Convention covers all biological agents that have no justification for prophylactic, protective, or other peaceful purposes. The Act does not therefore properly implement the Convention's definition of a prohibited biological agent. But more importantly, the Act merely regulates the transportation of hazardous materials. See 49 U.S.C.A. §1804 (authority for promulgation of regulations relating to transportation). See also 49 U.S.C.A. §1805 (criteria for registration and handling of hazardous materials). See, e.g., 49 C.F.R. Part 174 (carriage by rail); 49 C.F.R. Part 175 (carriage by aircraft); 49 C.F.R. Part 176 (carriage by vessel); 49 C.F.R. Part 177 (carriage by public highway). The Act does not prohibit the "development, production, stockpiling, acquisition or retention" of the agents it regulates. Thus, the Hazardous Material Transportation Act does not implement the Biological Weapons Convention for two reasons. First, the Act's definition of a "hazardous material" is materially different from the definitions of prohibited substances in articles I(1) and I (2) of the Convention. Second, the Act only authorizes regulations for the safe transportation of substances designated by the Secretary; it does not prohibit and prevent "their development, production and stockpiling" as required by the Convention. The inconsistency between the Act and Convention is highlighted by the Convention's articles II and III. Article II mandates the destruction of all material within the Convention's scope and article III prohibits "any transfer" of such materials. The Act, on the other hand, regulates the lawful transfer of all materials within its scope. In summary, the intent of the Hazardous Materials Transportation Act is to regulate the transportation of hazardous materials and the Act therefore does not implement the Biological Weapons Convention goal of eradicating all agents or toxins that have no peaceful purpose. 5. Toxic Substances Control Act The Toxic Substances Control Act's purpose is also unrelated to the Convention's goals. The Act, codified at 15 U.S.C.A. §2601 et. seq., implements three policies: (1) the collection of data with respect to the effect of chemical substances on health and the environment; (2) the regulation of chemical substances which present an "unreasonable risk of injury" to health or environment; and (3) the control of regulations on chemical substances so that economic and technological development is not impeded. 15 U.S.C.A. §2601. Under the Act, if the Administrator of the E.P.A. finds that the manufacture, distribution, processing, use, or disposal of a chemical substance (defined in §2602) may present an unreasonable risk of injury to the health or environment (or is entering the environment in significant quantities) and if insufficient data exist upon which the effect to health and environment may be |