Dual-Use Biological Equipment: Difficulties in Domestic Regulation

Dual-Use Biological Equipment: Difficulties in Domestic Regulation

Order Code RS21422
Updated January 22, 2004
CRS Report for Congress
Received through the CRS Web
Dual-Use Biological Equipment: Difficulties in
Domestic Regulation
Dana A. Shea
Analyst in Science and Technology Policy
Resources, Science, and Industry Division
Summary
Dual-use technologies, technologies with both civilian and military use, are often
cited as lowering technical barriers to terrorist development of chemical and biological
weapons. Export of these technologies is regulated through both domestic law and
international agreement, but domestic sales are not. Dual-use biological equipment,
whose military use includes the production of biological weapons, is employed in many
different civilian and commercial applications, including academic research and the
pharmaceutical, medical, and manufacturing industries. Consequently, regulating such
equipment might have a marked economic impact and prove to be infeasible. Possible
approaches to controlling this equipment include voluntary self-regulation and use of
industry best practices by suppliers, licensing of equipment purchasers, registration of
equipment, and application of civil penalties to suppliers for inappropriate end-use of
equipment. This report will not be updated.
Introduction
A question in the current debate over chemical and biological terrorism is: how well
do current United States policies limit opportunities to terrorist groups for acquisition of
such weapons? The domestic purchase and use of “dual-use” biological equipment,1 such
as fermenters, centrifuges, and other equipment, is one area suggested as potentially
providing opportunities for terrorist, biological weapons development. Dual-use
equipment has both legitimate civilian and military use. Regulating international sale of
dual-use equipment is used as a nonproliferation policy tool. Similar regulation of
domestic sales has not been employed. This report will discuss the difficulties of applying
domestic controls on dual-use biological equipment and the potential advantages and
disadvantages of doing so.
1 The phrase dual-use biological equipment, for the purposes of this report, describes dual-use
equipment which could be employed to develop biological weapon agents.
Congressional Research Service ˜ The Library of Congress

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The anthrax mailings of September and October 2001 challenged the belief that a
nation-state-level weapons program was a prerequisite for the production of high quality
biological weapons. Modern advances in dual-use biological equipment may have
significantly lowered technological barriers previously thought to impede individuals or
small groups wishing to obtain biological weapons.2 Advanced dual-use biological
equipment may allow biological weapons manufacture in smaller facilities, which may
be more difficult to detect.3 Many experts had thought that the requirements of technical
skills and education, specialized equipment, and a pathogen source would provide
significant barriers to terrorist groups.4 Although experts are divided, some believe that
an individual or a small, autonomous terrorist group may have been able to manufacture
and disseminate the anthrax spores used in the 2001 attacks.5 They suggest anthrax spores
might have been developed through the use of dual-use biological equipment by creating
a private laboratory to grow biological weapons.6
The USA PATRIOT Act (P.L. 107-56) limited individual access to biological agents,
and required researchers working with restricted biological agents, and facilities which
possess, transfer, or use such agents, to register with the federal government and develop
appropriate safeguards to prevent illegal access to said agents. Restricted persons,
including persons from any of the terrorism-sponsoring nations, are forbidden access.
This act did not impose similar controls on dual-use biological technologies.
What Is Dual-Use Biological Equipment?
Dual-use items range from the sophisticated, such as equipment designed to
chemically alter uranium compounds, to the mundane, such as high-voltage capacitors.
Dual-use biological equipment includes fermenters, centrifuges, sterilizers, and biological
safety equipment. This equipment is found in civilian settings, such as academic and
industrial research laboratories, teaching facilities, and hospitals, and in such activities as
brewing.
While some dual-use technologies have narrow applicability, others are ubiquitous.
In general, dual-use biological equipment is fairly widespread and there is a large
commercial trade in such equipment. Many laboratory or production sites contain
2 For an overview of the impact of technological advances on acquisition of biological weapons,
see Richard A. Falkenrath, Robert D. Newman, and Bradley A. Thayer, America’s Achilles Heel,
(Cambridge MA: MIT Press) 1998.
3 For example, it has been reported that Iraq miniaturized biological weapon production to such
an extent that a small laboratory could be contained within a cargo truck. See Paul Richter and
Greg Miller, “Inspectors to Scour Iraq for Mobile Weapons Labs; Western Analysts Believe a
Nondescript Fleet of Trucks Could Be Evasive – and Lethal If Bombed,” Los Angeles Times,
November 17, 2002.
4 See Amy E. Smithson and Leslie-Anne Levy, Ataxia: The Chemical and Biological Terrorism
Threat and the U.S. Response, (Washington DC: The Henry L. Stimson Center) October, 2000.
5 Other theories have also been put forth regarding the 2001 anthrax mailings. For the current
status of the FBI Amerithrax investigation, see [http://www.fbi.gov/anthrax/amerithraxlinks.htm].
6 Matt Crenson, “Experts Offer Competing Theories for Source of Anthrax: Was It New Jersey
Basement or Iraq?” The Associated Press, November 9, 2001.

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multiple pieces of dual-use biological equipment. Additionally, dual-use biological
equipment exists on many different production scales. Using fermenters as an example,
large, temperature and atmosphere controlled fermenters are used in industrial settings.
Home brewers use fermenters of varying size and complexity, from stainless steel,
temperature controlled brew pots to 5-gallon closed plastic buckets. Diagnostic and
research facilities use plastic petri dishes to culture and grow bacteria.
Dual-use biological equipment may be used for different purposes in each field.
Fermenters, again as an example, may be used in developing biological pesticides (the
bacterium used as “Bt” pesticide, Bacillus thuringiensis, is commonly grown through a
fermentation process), production of medicines (insulin is commercially extracted from
genetically modified microbes), vaccine development (anthrax vaccine is generated using
fermenters), and industrial enzymatic processes (such as those generating ethanol from
biomass). Biodefense research uses dual-use biological equipment to develop new
detectors, vaccines, and treatments against pathogens.
What Control Mechanisms Currently Are in Place?
While export controls do not apply to purchase of dual-use biological equipment
when the equipment is bought domestically from a domestic supplier, they may be
considered as a framework for domestic regulation of such equipment. Treaties and
multinational agreements are used to control dual-use biological equipment at the
international level. The goal of multinational programs is to inhibit proliferation by
increasing the technical barrier to weapon production. Examples of such multilateral
controls include the Wassenaar Arrangement and the Australia Group.7 Dual-use
biological technologies are included within U.S. export regulations, which block export
of some equipment without a license. These export control programs have thresholds
below which such controls do not apply. Equipment with capacity below these thresholds
may be sufficient to develop a limited biological weapons capability and would not trigger
such regulations. Export controls include Export Administration Regulations and
International Traffic in Arms Regulations.8
Other mechanisms, including voluntary governmental programs, increased contacts
between suppliers and purchasers, and industrial best practices, are used to monitor the
use of domestic dual-use biological equipment. The Department of Homeland Security
has continued a program named “Project Shield America,” which has agents visit U.S.
firms which manufacture or distribute technologies which may interest terrorist groups.
These agents provide firms with information about U.S. export controls and request that
vendors notify the federal government if they are approached by customers looking to
7 Information on the Australia Group is found online at [http://www.australiagroup.net]. For
more information about the Wassenaar Arrangement, see CRS Report RS20517, Military
Technology and Conventional Weapons Export Controls: The Wassenaar Arrangement, by
Richard F. Grimmett.
8 Export Administration Regulations can be found at 15 CFR Parts 730-774. International Traffic
in Arms Regulations can be found at 22 CFR Parts 120-130.

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acquire and export their products illegally.9 Some industries, such as parts of the
chemical and pharmaceutical industries, are developing best practices programs to limit
potential misuse of dual-use equipment. These practices include higher physical security
of laboratory and production facilities.10
Congressional Action
107th Congress. No legislation was passed in the 107th Congress controlling
domestic sale or use of dual-use biological equipment. However, on November 6, 2001,
the Senate Committee on the Judiciary, Subcommittee on Equipment, Terrorism, and
Government Information held a hearing addressing bioterrorism. During this hearing, the
prospect of employing licensing or regulation of dual-use biological equipment was
considered. Dr. Ronald Atlas, President of the American Society for Microbiology,
expressed his opinion that licensing and regulation would not be a successful mechanism
for controlling domestic development of biological weapons.
As worrisome as it may be, small flasks, canisters, home brewing bottles, and other
similarly mundane equipment provide all that is needed to grow the bacteria that cause
anthrax, plague, and other select agents. ... To cover the size relevant for bioterrorism
one would have to capture everything of 5 liters and above and that would still not
eliminate the possibility of growing the organisms in simpler vessels.11
108th Congress. Export control legislation was introduced by Rep. Dreier (H.R.
55) and referred to the House Committee on International Relations. No further action
was taken. For more information on the export control debate, see CRS Report RL31832,
The Export Administration Act: Evolution, Provisions, and Debate, by Ian F. Fergusson.
The House Committee on Government Reform, Subcommittee on National Security,
Emerging Threats, and International Relations held a hearing on October 7, 2003
investigating Department of Defense control of surplus chemical and biological
equipment. The General Accounting Office (GAO) testified that surplus dual-use
biological equipment was purchasable from the Department of Defense at discounted
cost.12 Equipment purchased by GAO included both manufacturing and safety related
equipment.
9 For more information on the Department of Homeland Security’s Project Shield America, see
[http://www.cbp.gov/xp/cgov/enforcement/ice/investigative_priorities/ecee/].
10 Members of the American Chemistry Council have adopted a Responsible Care Security Code
to limit the effects of terrorist attacks or infiltration at their facilities. See Protecting a Nation:
Homeland Defense and the Business of Chemistry, American Chemistry Council, 2002. Other
industry groups have developed similar plans.
11 Dr. Ronald Atlas, President, American Society for Microbiology, Testimony before the Senate
Committee on the Judiciary, Subcommittee on Equipment, Terrorism, and Government
Information, November 6, 2001.
12 Testimony by Gregory D. Kutz, General Accounting Office, before the House Committee on
Government Reform, Subcommittee on National Security, Emerging Threats, and International
Relations, October 7, 2003.

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Policy Options
Maintaining the Status Quo. The export controls currently employed to limit
proliferation of dual-use biological equipment were developed with the perceived threat
being from nations, rather than terrorist groups. Some have claimed that export control
mechanisms are not well-suited to blocking terrorist acquisition of biological weapons.
Since nations generally are interested in producing bulk amounts of weapons, purchases
generally are on a large scale, and failure to interdict a single purchase may not be greatly
detrimental to a nonproliferation program. In the case of a lone terrorist, purchase of
equipment with small, limited capacity may allow biological weapon development
sufficient for use in terrorist acts. For example, the sale of fermenters with more than
100-liter capacity is controlled under export regulation.13 Consequently, a 10- or 50-liter
fermenter, which has been suggested as sufficing for limited development of biological
weapons,14 could be purchased without triggering licensing requirements. It has been
reported, though not confirmed by the government, that a research project called Project
BACUS, funded by the Defense Threat Reduction Agency, demonstrated the feasibility
of assembling the equipment needed to establish a biological weapons laboratory through
purchase of dual-use biological equipment.15
Some contend that export controls economically injure domestic manufacturers of
such equipment and that the United States is not a sole supplier of many export-controlled
technologies. They suggest that export control does not significantly increase barriers to
proliferation of widely manufactured technologies, and that controls should be lowered
on these items. Advocates of maintaining strict export control regulations maintain that
the barriers created by export control are valuable and should be continued or expanded.
See CRS Report RL31832, The Export Administration Act: Evolution, Provisions, and
Debate, by Ian F. Fergusson for a discussion of these positions.
Current domestic oversight of dual-use biological equipment through Project Shield
America has also been questioned. Three concerns have been raised: the degree to which
industry members may take on the job of federal officers; the mechanism of identifying
manufacturers and technologies; and the manner by which manufacturers are to determine
suspicious behavior.16 Also, while best manufacturing practices may limit access to dual-
use equipment in industrial settings, such efforts do not address purchase and illicit use
of dual-use equipment outside of those settings.
Licensing or Registering Domestic Sales. Another option might be to license
companies and individuals for purchase of dual-use biological equipment or registering
the sale of such equipment. This approach might mirror that now used for purchase of
pathogens. Mechanisms involved in registering sale and possession of equipment exist
13 U.S. Department of Commerce, Commerce Control List, Part 774, Category 2, found online
at [http://w3.access.gpo.gov/bis/ear/ear_data.html].
14 Kathleen C. Bailey, Why the United States Rejected the Protocol to the Biological and Toxin
Weapons Convention, National Institute for Public Policy, October 2002.
15 Judith Miller, Stephan Engelberg, and William Broad, Germs: Biological Weapons and
America’s Secret War, (New York: Simon and Schuster) 2001.
16 Brock N. Meeks, “Terrorism ‘Shopping List’ Targeted,” MSNBC, December 10, 2001.

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(e.g., automobile purchase is registered), and could be implemented. Also, a mechanism
for the retirement and removal of equipment no longer in service may be required if a
registry format is used for dual-use biological equipment.
Some difficulties inherent in such a plan have been identified. A significant concern
is the scale on which such licensing and registration would be effective. Registration of
the purchase of common items, such as disposable, plastic petri dishes, might impose an
unacceptable burden with respect to tracking, paperwork, and verification. Alternately,
a registration program that was too limited might prove to provide no barrier to
acquisition. Another concern lies in determining what criteria would be used to develop
a licensing protocol, as a wide range of individuals, ranging from home brewers to
research scientists, utilize this equipment. A final concern surrounds the effectiveness of
such a program in prohibiting secondary sales, transfer, or use by unlicenced individuals.
Others have advocated as solutions to secondary transfers, installing electronic tracking
devices or indelible registration methods as alternatives or additions to a formal registry
tracking.17
Encouraging Information Tracking of Dual-use Equipment. As a method
to police the application of dual-use equipment, some have advocated increasing
collection and coordination of information on dual-use equipment. Integration of vendor
and other information might increase the ability of the U.S. government to detect small-
scale, domestic, clandestine weapons programs. Others are concerned that such a
program might raise civil liberty issues.18
Another approach that has been suggested is to request that entities selling such dual-
use equipment show greater diligence in determining the end use for their products.
Federal agencies selling surplus equipment might be required to verify or validate the end
receiver or use of dual-use equipment. Companies that sell dual-use equipment might be
advised to scrutinize sales to ensure that their products are not diverted to production of
weapons. Some have suggested the development of civil liability for companies who fail
to perform due diligence before selling equipment that is later misused.19 Critics of this
proposal doubt the practicability and political viability of such a position both in terms
of industry incentive20 and in the ability of vendors to control equipment end-use.21
17 Robert Wright, “A Real War on Terrorism: Policing Weapons of Mass Destruction,” Salon,
September 12, 2002.
18 Michael Powell, “Domestic Spying Pressed. Big-City Police Seek to Ease Limits Imposed
After Abuses Decades Ago,” Washington Post, November 29, 2002; Page A01
19 Richard A. Falkenrath, op. cit. and Jonathan B. Tucker, “Chemical/Biological Terrorism:
Coping with a New Threat,” Politics and the Life Sciences, Vol. 15, September 1996, pp. 167-83.
20 Graham S. Pearson, “Chemical/Biological Terrorism: How Serious a Risk?” Politics and the
Life Sciences, Vol. 15, September 1996, pp. 210-12.
21 Kathleen C. Bailey, “Policy Options for Combatting Chemical/Biological Terrorism,” Politics
and the Life Sciences, Vol. 15, September 1996, pp. 185-7.