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Federal Document Clearing House
Congressional Testimony
October 10, 2002 Thursday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 3085 words
COMMITTEE:
HOUSE SCIENCE
HEADLINE: OPENNESS VS
SECURITY IN SCIENCE RESEARCH
TESTIMONY-BY: JOHN H.
MARBURGER, DIRECTOR
AFFILIATION: OFFICE OF SCIENCE AND
TECHNOLOGY POLICY
BODY: Statement of The Honorable
John H. Marburger Director, Office of Science and Technology Policy
Before the Committee on House Science U.S. House of Representatives
October 10, 2002
Good morning Chairman Boehlert, Ranking Member
Hall and other Members of the Committee. I greatly appreciate the opportunity to
discuss with you the goal of the Administration and Congress to ensure an open
scientific environment in the U.S. and to maintain the security of our homeland.
In the National Science and Technology Policy, Organization, and
Priorities Act of 1976, OSTP is specifically charged with building strong
partnerships among Federal, State and local governments, other countries, and
with the scientific community. We take this responsibility very seriously. We
also are very serious about the need, post-September 11, 2001, to weigh elements
of an open scientific environment against adverse consequences to homeland
security. Given our responsibility to "advise the President of scientific and
technological considerations involved in areas of national concern," OSTP is the
primary voice within the White House on how particular actions will impact the
S&T enterprise. We have been involved in several issues that are at the
nexus of science and security. Today I'd like to discuss 3 of these issues:
1) Select Agent Registration and Laboratory Biosecurity;
2)
International Students; and 3) Sensitive Homeland Security Information
Select Agent Rule and Laboratory Biosecurity
On June 12, 2002,
the President signed Public Law 107-188, the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002. The Act specifies that the
Secretary of HHS shall establish and maintain a list of biological agents and
toxins that have the potential to pose a severe threat to public health and
safety ("select agents") and requires that all facilities and individuals in
possession of the select agents register with the Department. The Act created an
analogous program at USDA, which is being directed through the Animal and Plant
Health Inspection Service (APHIS).
HHS has maintained a list of select
agents since April 1997 (see 42 CFR part 72, Appendix A), under the management
of CDC. This rule covered the transfer of select agents, including the
registration of facilities engaging in transfers and exemptions from such
registration.
P.L. 107-188 extends oversight beyond transferring to
facilities possessing and using select agents and specifically aims to maintain
"appropriate availability of biological agents and toxins for research,
education, and other legitimate purposes." Under this Act, new regulations are
necessary in order to enforce proper use, containment, and transfer of select
agents. However, the Administration is sensitive to the need to avoid erecting
barriers to legitimate scientific research. While this represents a new form of
research oversight, other accepted measures are already in place to regulate the
use of radioisotopes and human research subjects.
CDC convened an
interagency working group, including USDA, to review the current list of
biological agents and toxins from October 1997, and revise the list as
necessary. The working group has (1) proposed a revised list of bacteria,
viruses, fungi and toxins, (2) identified minimum quantities of toxins requiring
registration, and (3) defined genetic elements requiring regulation.
On
August 6, CDC published a Federal Register notice requiring notification by
September 10 of all facilities in possession of select agents. A form was sent
to over 200,000 institutions for this purpose, requesting a response, even if
the facilities did not possess such agents. CDC has processed over 100,000
responses so far, only a small proportion of which declare possession of select
agents. Responses are still coming in.
On the same date, CDC and USDA
published a list of "overlap agents" or those that appear on both agencies'
lists because they infect both animals and humans (67FR51060). Responses to
USDA's request for notification are due October 10.
The law also
requires "establishment of safeguard and security measures to prevent access for
such agents and toxins for use in domestic or international
terrorism or for any other criminal purpose." Therefore, the
CDC-led working group has also been working on lab biosecurity measures, to
maintain secure environments in laboratories possessing select agents. A
revision to Appendix F of the Biosafety in Microbiological and Biomedical
Laboratories Manual is underway, to address security issues in light of
heightened awareness of potential bioterrorism.
A key element of these
provisions will be a requirement that individuals deemed to have a legitimate
need for access to select agents will undergo a background check administered by
the Department of Justice, in accordance with P.L. 107-188. This will consist of
a check against databases including criminal, immigration, national security and
other electronic databases available to the Federal government.
Provisions necessary to enhance laboratory biosecurity will vary with
each institution depending on its location and principal function, the nature of
the agents in use, the conditions for their maintenance (for example, plant or
animal pathogens often require facilities different from human pathogens), and
vulnerabilities or types of threats most likely to be encountered.
Institutions will be required under the new regulations to prepare a
comprehensive security plan based on threat analyses and risk assessments. The
decision to purchase "guns, gates and guards" should be thought through
carefully and any security enhancements should be based on a thorough,
professional risk assessment. I am concerned that universities are already
taking steps that incur great expense without ensuring a commensurate increase
in security.
CDC also published a notice (Fed. Reg. August 23, 2002)
including the revised list of select agents and associated genetic elements,
recombinant nucleic acid and recombinant organisms that will require
registration. Similarly, on August 12, USDA published for comment its initial
list of biological agents and toxins (67FR52383). The interim final rule will be
published in December and will contain the regulations on select agents, the
registration process for individuals and facilities (including background check
procedures), and exemptions for clinical and diagnostic laboratories and
approved investigational products. The interim final rule goes into effect in
February.
International students
There is evidence that some
terrorists have exploited the
student visa program. One of the
19 hijackers entered the U.S. on a
student visa but never
showed up at school. Two other hijackers entered the country on tourist visas
but applied for
student visas after they arrived.
We
must also consider the possibility that we are training future terrorists in
sensitive and uniquely available knowledge. Of course the vast majority of
international students are here for legitimate purposes, and we fully appreciate
the important contribution they make to the nation's S&T enterprise.
The Administration and the Congress want to know who is in the country
and if they are doing what they claimed they were going to do.
Student
visa overstays are not tolerated, but until now it has been very
difficult to enforce student no-shows or students who don't leave when their
study is completed.
A new tracking mechanism has been put in place named
SEVIS: Student and Exchange Visitor Information System. This automated,
web-based computer system replaces the existing paper-based system of reporting.
Instead of sending reports and updates to the INS by mail, school officials have
immediate access to a database where they can update their files real time. The
SEVIS system notifies a school that a student is expected; if the student fails
to turn up after 30 days, the system alerts officials to take appropriate
action. The SEVIS system records address changes, changes in program status, and
date of graduation. A student must then leave the country or switch to a
different visa category, such as an H-1B visa, if they are hired by a U.S.
research lab or firm.
Currently student and research scholar visa
applicants with studies related to the 16 sensitive technologies that constitute
the current U.S. Technology Alert List are forwarded to the State Department
Consular Affairs Office in Washington, D.C. from foreign consulate offices for
additional vetting. Most visa denials are due to the Consular Officer's
judgement that the applicant is unlikely to return to his/her home country.
Other visa denials are due to existing intelligence community information that
may warrant exclusion on the grounds of national security concerns. Currently a
name check is conducted by the State Department's Consular Lookout Automated
Support System (CLASS), which includes name check information from overseas and
domestic State Department offices, INS, Customs, FBI and CIA.
To prevent
potential terrorists or those tied to terrorist organizations from receiving
sensitive, uniquely available, training and knowledge, the President directed,
through Homeland Security Presidential Directive-2, (HSPD-2) in October 2001,
that, "It is the policy of the United States to work aggressively to prevent
aliens who engage in or support terrorist activity from entering the United
States and to detain, prosecute, or deport any such aliens who are within the
United States." HSPD-2 goes on to direct that, "The Government shall implement
measures to end the abuse of
student visas and prohibit certain
international students from receiving education and training in sensitive areas,
including areas of study with direct application to the development and use of
weapons of mass destruction."
But the Directive also cautioned that
these measures should be implemented with great care because, "The United States
benefits greatly from international students who study in our country. The
United States Government shall continue to foster and support international
students."
To fulfill the requirements of Homeland Security Presidential
Directive (HSPD-2), OHS and OSTP established an interagency working group that
included members from the Departments of State, Justice (headed by the
Immigration and Naturalization Service (INS)), Agriculture, Commerce, Defense,
Education, Energy, the National Science Foundation, the National Institutes of
Health, and representatives from the intelligence, counterintelligence, and law
enforcement agencies. This working group labored over several months to find the
right balance between scientific openness and national security in implementing
the requirements of HSPD-2. The Administration adopted the Working Group's
recommendations, and agencies are now developing the processes and regulations
needed to implement the Administration's policy.
The Administration has
chosen to implement an enhanced mechanism to review the visa applications of
advanced students and visiting scholars on a case-by-case basis. This review
process will focus on international students who wish to participate in
sensitive science and technology areas that are uniquely available in the United
States and who may use the knowledge gained to threaten the security of the
United States.
The Administration concluded that given the wide array of
coursework and information freely available through academic institutions and
other open sources, it becomes impossible to create a list of sensitive courses
or even majors that would meaningfully enhance homeland security against
terrorist threats from international students. Because of the focus on uniquely
available, sensitive, scientific training or knowledge, it is logical to assume
that graduate and postdoctoral researchers would be more likely to be reviewed
than undergraduate students whose educational content tends to be more widely
available.
The Administration will create an Interagency Panel on
Advanced Science and Security (IPASS) to perform the enhanced review process.
The IPASS co-chairs would be appointed by the Secretary of State and the
Attorney General, and the members would be drawn from the State Department, the
INS, federal science and technology agencies, and the intelligence,
counterintelligence, and law enforcement agencies.
The State Department
will refer select student and visiting scholar visa applicants for advanced
science programs to the IPASS for review as part of the normal process of
screening
student visa applications. The INS will also refer
select F, M or J visa holders (and applicants for change of status to F, M or J
visas) for review when they seek involvement in uniquely available, sensitive
training or knowledge areas.
IPASS will evaluate a number of variables,
including the individual's background and previous education and training, their
country of origin or affiliation, their scientific area of study, training, or
research and the nature of the work currently conducted at the U.S. educational
institution, and will provide the referring agency with an advisory opinion
regarding the proposed visa applicant. Both the State Department and INS will
retain their statutory authority to make the final determination in each case,
although some changes to the visa process may be likely when the Department
Homeland Security is created.
In addition, the IPASS will assess what
uniquely available sensitive scientific knowledge is emerging, where it is
available, and which terrorist groups or organizations might be trying to gain
access to it. IPASS will work closely with U.S. educational institutions and
scientific societies in this effort.
The Attorney General and the
Secretary of State, along with OHS and OSTP, will routinely monitor the work of
the IPASS to ensure that the Federal government has struck the right balance
between scientific openness and homeland security. We are aware that there are
great scientific institutions around the world, which provide an attractive
alternative to studying or conducting research in the United States. We don't
wish to turn away scientists unnecessarily.
Sensitive Homeland Security
Information
On the subject of sensitive information, OHS has asked OMB
to develop guidance for Federal agencies to ensure consistency of treatment of
"sensitive homeland security information" across the Federal government and by
the recipients of such information. Recipients might include first responders,
State and local law enforcement personnel, public health officials and those
responsible for developing and maintaining infrastructure.
The guidance
is intended to promote consistent handling of sensitive homeland security
information across Federal agencies. Consistent handling includes safeguarding
for the proper duration, sharing via the appropriate means, and disclosing at
the appropriate time. Many agencies have individual designations, such as law
enforcement sensitive, but different methods for handling such information.
The designation Sensitive Homeland Security Information (SHSI) does not
refer to some new category of information; rather it is the type of information
that the government holds today which is not routinely released to the general
public, such as law enforcement data and critical computer security threats or
vulnerabilities. The vast majority of government information is and will remain
publicly accessible.
Open access to fundamental research data is
critical to continued scientific advancement and validation of such results.
Indeed, it is valid to argue that homeland and national security rely heavily on
our ability to conduct research exploring the underpinnings of disease processes
or the biology of human, animal and plant pathogens in order to strengthen our
defense against such agents, or to develop better sensors for radiological,
chemical and biological weapons.
Sensitive Homeland Security Information
is not classified information and does not require the practices and
infrastructure necessary for handling classified information. The designation
would be implemented under existing law and policy, and complements and does not
supercede existing mechanisms for classification and declassification of
government information.
It is important to note that this process is in
the formative stage. The Administration has been engaged in "listening sessions"
with various groups of stakeholders, including scientific societies, university
organizations, private industry, public interest groups, state and local
government representatives, and other interested parties, to listen to advice on
best defining SHSI across different sectors, as well as questions and concerns
about the potential impact of policy options. These meetings have been very
helpful in to us in understanding how to shape a guidance document for public
comment. We will also engage in an interagency process and the publication of
the guidance in the Federal Register for comment. Therefore, I am happy to take
back any concerns you express today to the group working this issue but I may
not be able to answer all of your questions.
In the future, we will
consult with these groups to determine if there is a need for clarification in
the final guidance. Once OMB has issued guidance to the agencies, it becomes
their responsibility to prepare rules, directives or otherwise ensure consistent
handling of Sensitive Homeland Security Information.
Conclusion
In closing, I'd like to repeat a statement that I've made many times
over the past year and which remains true today. This administration is
determined not to let
terrorism deflect America from its
trajectory of world leadership in science. Our research enterprise has produced
the means for great strides in science, and in accompanying technologies for
improved health care, economic competitiveness, and quality of life. To impede
this progress would be to fulfill the ambitions of terrorists to disrupt the
American way of life. Having said this, we must also take measures to safeguard
our research enterprise, particularly given that terrorists have already shown a
willingness to use our technology against us on our own soil. The question is
one of balance, and it is one that my office will continue to work to achieve as
we move forward. I thank you for holding this hearing on this important subject.
LOAD-DATE: October 11, 2002