Advocate Summary

Issue:  Student Visas & Laboratory Security
Advocate:  American Society for Microbiology – Janet Shoemaker
Date of Interview: 7/2/02

Basic Background
Well the administration proposed legislation following Sept. 11 and the terrorism events of Sept 11, and then bio-crime legislation was introduced to regulate dangerous biological agents and toxins to require that they be registered if a researcher or institutions have them. The regulations up to that point had only been for transfers of an agent. In addition to that because of the involvement of foreign nationals in the terrorism event, there where requirements in the patriot act to restrict the possession of dangerous biological agents from foreign nationals.

Prior Activity on the Issue 
Actually this whole issues, registration for possession, had been around since 1997 under the Clinton administration and it wasn’t exactly a new issue, it’s just that, I think the proposals we had seen didn’t have as much momentum behind them because there wasn’t a crisis, and then a crisis developed and then the legislation just took off because that’s the way it works usually, if there is an event or a crisis, then Congress will pick up a piece of legislation to adapt to it, which is what happened. Obviously there was a legislative record, ASM had testified in ’99 that we supported registration for possession, so we were really able to frame our arguments on a historical record of what was proposed in the past. I think that the issue of foreign nationals was one that was much more controversial and I think that in the proposals that we had seen prior to Sept. 2001 that in those proposals foreign nationals were considered to be very problematic, after Sept. 11 it was clear that there was going to have to be some kind of compromise on that. It probably got as narrow to limit it to bar people from the seven countries, and people would argue with that but on the other hand we could not find any foreign nationals from those countries working with select agents, that was part of the argument to Congress, and that of course made perfect sense to them, to bar people from countries that support terrorism.

Advocacy Activities Undertaken
There were originally proposals in Congress to ban possession or work with select agents by all foreign nationals and the ASM worked to narrow that restriction in the patriot act, so when it finally passed in October, Congress had narrowed the restriction to only foreign nationals who are one, illegally in the country or two, from countries that are known supporters of terrorism, there are seven countries. So that is now part of the biological weapons statue, Title 18 and it’s been amended to restrict possession, use and transfer of select agents by a list of individuals who aren’t nationals from those countries but other individuals who are felons or fugitives of justice, there is a list of about ten categories of individuals, which is drawn from the firearms statue. And that is now part of the biological weapons statue, a new prohibition. And a second amendment to the biological weapons statue was to establish a prohibition on what they call “unlawful possession” which is possession which is not for a legitimate purpose such as research or a human purpose such as diagnostic testing. Any other possession, and this goes beyond select agents, unlawful possession of any biological agent or toxin, that is not for legitimate purposes is now considered unlawful and the individuals can be prosecuted for that type of possession if they can’t prove that they are using this biological agent for a legitimate purpose, which means that you can’t possess a vile or any kind of pathogen or agent that could cause harm to anybody as long as you can’t prove it’s for a legitimate purpose. So those are the only two changes which were in the Patriot Act which was signed into law on October 26. In addition to that ASM worked on legislation that expanded the 1997 regulation for controls on biological agents that are select agents. In 1996 Congress passed the Anti-terrorism Effective Death Penalty Act, which mandated regulation for the sending and receiving of select agents, there are six select agents, and these are the most dangerous biological agents and toxins and they all have some history of being weaponized. Those agents were regulated in the regulations that came out in 1997. And congress amended that law, there were proposals that came out in October and November 2001, in the House and Senate there were different bill, about five or six different bills and Feinstein and Kennedy’s staff drafted a provision on select agents for this registration and possession which the ASM found satisfactory and then we started working with Senator Kennedy’s staff, and then that was put into a bill S 1755 which was introduced in the Senate. Then various things happened, Senator Feinstein attached it to the DoD appropriations bill, it came off that bill, it was put back into a bio-terrorism package which created new authorizations for funding for bioterrorism prevention, and it became Title II in that bill and then over in the House a separate bill, HR3458, was introduced in December which was also a bioterrorism package and it became a provision of that bill and then finally the conference took place between January and May 2002 and the bill was finally completed in May, there was many re-draftings. ASM also testified on the provisions of that bill in November 2001 over in the Senate Judiciary subcommittee. So we had considerable consultation with Congress about that and then it was finally signed into law 2/12. And we are now working with the administration the Interagency Work Group to write the regulation and we’ve made two presentations before the work group and we are starting to write the regulation and continue to work with them. We are drafting a points-to-consider document which we are going to submit to them and the way that we would recommend the regulation to be written. So as to not to obviously overly restrict research, to achieve some reasonable level of protection which is very hard to do with biological agents. So we are providing scientific input into which agents should be on the list that are to be regulated, we are also providing advice on biosecurity levels being commensurate with the risk of the agent, and not just have one level of security for all of the agents because all of the agents are not the same in terms of their risk, some agents like Ebola are more difficult to work with and have different bio-safety levels and so also the biosecurity levels should be tailored to the level of risk of the agent.  We are currently involved in the proposal to create a new department of Homeland Security which has a provision that the administration has proposed to transfer parts of the Department of Health and Human Services into the Department of Homeland Security, their bill is HR 5005. We were asked to testify on that bill, we testified on Tuesday before the House Energy and Commerce subcommittee on Oversight and Investigations. We testified that we see a role for the Department of Home land security with respect to weapons of mass destruction we don’t think that it is a good idea however to transfer programs from research agencies and public health agencies to the Department of Homeland Security. And we don’t think it is a good idea to give the department control over the research agenda entirely for our research efforts that have to take into account the whole body of knowledge that exists for infectious diseases on these agents which have already been established for years, Ebola for example and smallpox, that research has been done by the NIH and the CDC. We see that bio-defense research would build on that but the Department of Health and Homeland Security, which is not a public health agency, should not be setting, exclusively, the research priorities or the scientific direction about research, and they don’t really know how to do that or to capitalize on the infrastructure and scientific talent that exists out there when the NIH and the CDC can accomplish that. So we see major problems with the administration’s proposal and we wanted to get that on the record. And I think it was well received by the subcommittee and I think in fact that Congress shares our concerns. I don’t know what the outcome will be, on the Senate side there has not been the same opportunity to testify there, the committee that has jurisdiction – the government reform committee, which is not a committee that deals with NIH, that committee is chaired by Senator Lieberman, Senator Lieberman has an interest in science and technology and his proposal is somewhat different than the administration in that he would create an under secretary that would be broadly focused, and he would create a office in the White House that would be charged with strategic planning, which would involve strategic planning for research on any weapon of mass destruction. And perhaps his approach is a more preferable one, in that it starts out with more consultation, more incremental with respect to the role of the Department of Homeland Security and it’s role with priority spending, the ASM does not envision that the department won’t have any role to play in priority setting, it certainly will, because they need information about threat assessment in setting research priorities of course but it has to be a synergistic priority setting role with the Department of Health and Human Services. So we are going to continue to work on that of course , that legislation is proceeding rather quickly because Congress has set a goal of Sept. 11th for the imposition of this bill – a symbolic date, and we don’t see how that will happen, but we’re not really sure that Congress won’t really try to make that happen, I’m sure it will but there are a lot of complex issues to discuss. But that’s the time table so we’re working as much as we can to provide expert advise to Congress about the administration’s proposal and what shouldn’t be in the legislation and what the role of Homeland Security should be with respect to bio-defense research. 

We actually never made any visits to the Hill on the Patriot’s Act because that was moving so rapidly, and at that point Congress had been put out of its offices back in October because of the Anthrax. And so our contacts with Capitol Hill were mostly by email and telephone call and fax which created an entirely different way of communicating with Congress, but in some respects it was better because strangely enough, one was able to email in real time, proposals and information back and forth. I don’t think the Congressional staff had really worked that way in the past, so that was interests. So what would happen was the staff would call us and ask what our issues were and ask for feedback on different proposals and so it was a give and take kind of work environment on the different proposals; what was our reaction to the administration’s proposal, what was our reaction to the House proposal, the Senate proposal and in the end when they reached a compromise, what was our reaction to the final compromise. 

I should say I was approached, I didn’t have to do a lot of outreach, they were asking us at that time for our input, they were reaching out to an expert for advice. 

We pursued testifying, with legislative testimony and we presented expert opinion and advice and most of this was on request from the staff. We have a task force on biological weapons control and we have a board on public affairs, so we have in place experts that deal with these issues and are able to respond, we also have an attorney that works with me on legal issues. 

The task force has been in existence for a long time, biological weapons control issues are a major issue for the ASM because we work with biological organisms and we have been involved in providing the expertise on the Biological Weapons Convention Implementation Protocol, which has been worked on for about 5 years, and because the state department asked for advice on different technical issues involved in writing the protocol we decided to get together a taskforce so that we would be able to net the different protocols with experts that represent different areas, biology, the public sector, the private sector and the government. 

Future Advocacy Activities Planned
They will continue to work on the legislation to create a Department of Homeland Security, they will testify on the subject in the near future.

Key Congressional Contact(s)/Champions
Oh we worked with many staff, the Kennedy staff, the Feinstein staff, Senator Gregg’s staff, Senator Frist’s staff, Senator Leahy’s staff, Senator Biden’s staff, there are a lot, many people we worked with. 

Targets of Direct Lobbying
None mentioned. 

Targets of Grassroots Lobbying
None mentioned. 

Coalition Partners: Names/Participants
We working mostly with the Association of Universities which has the administrative responsibility for the research taking place at universities. We represent scientists working both at universities and the private sector. 

Other Participants in the Issue Debate
In the administration we’ve worked with the president’s office , OSTP – the Office of Science and Technology Policy, the National Security Council and their staff, the Non-Proliferation staff.
 
Ubiquitous Argument(s) and Evidence
We were providing policy advice, it’s hard to separate policy advice from scientific advice. With respect to the issue of foreign nationals that inherently we need to have foreign nationals in the labs, in the United States they make up about 30 percent of the work force, so they make up a large part of the expertise and the personnel in the labs and if you are going to bar them from work in this country it is going to have a significant implication, and effect on the universities. So you need to approach that carefully and in a reasonable way. And of course the climate at the time, the political climate as you can imagine, took the opposite approach, there was great fear and apprehension about foreign nationals. That has now subsided and Congress, and this is probably the way it always works, is that the initial proposals are much more restrictive and then they receive input for why these proposals are not a good idea from the scientific societies or from other experts, providing them with what the effects would be on research because Congress does want to fund bio-terrorism research and see that research flourish in this country so that it can protect the country but you can’t over-restrict the research in order to get it done. At the same time you have to have reasonable restrictions in place to make sure that it is done in a secure way. So our approach was to try to balance those issues and try to work that out. 

They asked us to testify on the transfer of the research and public health programs into the department of Homeland Security and basically what we do is outline for them what the issues are and what we see the issues is what affect it would have and then what our recommendations are. And that’s what they want to hear, I mean they don’t really want to hear an advocacy position, so much as they want to hear credible advice why this is or is not a good idea. Of course they will take that into consideration and they will weigh the merits of the administration’s proposal.

Secondary Argument(s) and Evidence
None mentioned. 

Targeted Arguments, Targets, and Evidence
None mentioned. 

Nature of the Opposition
There were some individuals that were calling for strict proposals, but I don’t know if they took a formal position, I really don’t know of any.  I’m sure there would be people for very strict controls but the bill was moving very fast and I think very few people new about it. 

[Impediments]
I think the apprehension and the fact that Congress wanted to pass legislation very rapidly did not lend itself to a deliberative process that would have been best. Though it wound up going in fits and starts and didn’t go as rapidly as we had expected, but the time element was certainly an impediment to the deliberative process that you’d like to see although we did have an opportunity to testify in the Senate and we had testified also in the House, it’s in the legislative record, we had testified in 1999 on the issue. So there was a legislative record in the House. 

Ubiquitous Argument(s) and Evidence Articulated by the Opposition 
None mentioned. 

Secondary Argument(s) and Evidence Articulated by the Opposition
None mentioned. 

Targeted Argument(s) and Evidence Articulated by the Opposition (and Targets)
None mentioned. 

Described as a Partisan Issue
No.

Venue(s) of Activity
Senate Judiciary
House Energy and Commerce – Subcommittee on Oversight and Investigations

Action Pending or Taken by Relevant Decision Makers
Legislation for the creation of the Department of Homeland Security is still under consideration in the House and Senate. 

Policy Objective(s) and Support for/Opposition to the Status Quo
[Working to balance the need for increased laboratory security with the need to not overly restrict labs which need the expertise of foreign nationals and the flexibly to accomplish their work.]

Advocate’s Experience: Tenure in Current Job/Previous Experience
I’ve been hear for twenty-five years and I have a degree in liberal arts in history and a graduate degree in public policy and journalism. 

Reliance on Research: In-House/External (Code for Organizational Advocates Only)
We don’t outsource, we develop our own positions, we have a board of scientific affairs, we have committees that deal with specific scientific areas and different issues. And we develop our positions with our scientists and if we need legal advise we have an attorney who’s been our attorney for 25 years, he’s our counsel, he’s familiar with many of the issues, if the issue is legal. We sometimes use a science write help us to do some white papers or occasional first drafts, sometimes we use them, sometimes we use a little of them, but we never accept them they’re just a starting point, sometimes we don’t use any of it, if it’s not what we wanted or if we don’t like it, but we certainly never accept anything that anybody does as what we use. 

Number of Individuals Involved in Advocacy (Code for Organizational Advocates Only)
Three  [note below she’s says they don’t really engage in lobbying per se]

Units in Organization Involved in Public Affairs/Policy (Code for Organizational Advocates Only)
I’m the director and we have three staff people, three managers. We don’t actually do lobbying, when it comes right down to it, most of what we do is at the request of Congress, all of the input that we’ve had on the Patriot act, on the select agent legislation and even on the Homeland Security has all been at the request of Congress. Congressional staff knows ASM, they know ASM is an expert on these issues so they ask us to testify and they ask us for information and so in that respect, under the lobbying registration law, it’s not considered lobbying, one has to initiate a contact with attempt to influence legislation, but if you are requested it doesn’t qualify as lobbying. But we are registered under the lobbying law of 1995 because we feel in good faith we should be, there is a point in which, not particularly on this issue, but on other issues, there is a point where you do wish to influence, divert someone from a position because they might be very adverse to science, so there may come a time when we might want to ask our members to write, even though that doesn’t qualify, grassroots doesn’t quite qualify as lobbying under the lobbying law either. Once you understand the lobbying law I think it is pretty clear to non-profits what you can do and what you can’t do. Actually I file the lobbying reports, and I must say that very little of what we do actually counts as lobbying, because even when you respond to a federal register notice or you’re asked to testify you get a letter from the subcommittee asking, inviting you to testify. 

Advocate’s Outstanding Skills/Assets (Code for Organizational Advocates Only)
None mentioned.

Type of Membership: None, Institutions, Individuals, Both (Code for Organizational Advocates Only)
Individuals 

Membership Size (Code for Organizational Advocates Only)

Organizational Age (Code for Organizational Advocates Only)

Miscellaneous