[Federal Register Volume 67, Number 164 (Friday, August 23, 2002)]
[Proposed Rules]
[Pages 54605-54607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21512]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

42 CFR Part 72, Appendix A

RIN 0920-AA08


Interstate Shipment of Etiologic Agents; Select Agents

AGENCY: Centers for Disease Control and Prevention, Department of 
Health and Human Services.

ACTION: Notice of intent to issue regulations.

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SUMMARY: On June 12, 2002, President George W. Bush signed Public Law 
107-188, Public Health Safety and Bioterrorism Preparedness and 
Response Act of 2002. The Act specifies that the Secretary of the 
Department of Health and Human Services establish and maintain a list 
of biological agents and toxins that have the potential to pose a 
severe threat to public health and safety. The Secretary directed the 
Centers for Disease Control and Prevention (CDC) to convene an inter-
agency work group to review the current list of biological agents and 
toxins found in 42 CFR part 72, Appendix A, and revise the list as 
necessary.
    Prior to issuing the Interim Final Rule, as required by Public Law 
107-

[[Page 54606]]

188, the CDC is interested in obtaining public comments on the 
revisions to 42 CFR part 72, Appendix A, that are under consideration. 
In addition to these revisions, the CDC is particularly interested in 
obtaining comments on whether there are biological agents and toxins 
that should be added to the list or removed from the list.

DATES: Submit comments on or before September 17, 2002.

ADDRESSES: Comments on the revisions to the list of select agents and 
toxins that are under consideration should be marked ``Comments on 
Select Agents'' and mailed to: Centers for Disease Control and 
Prevention, National Center for Infectious Diseases, Select Agent 
Transfer Program, 1600 Clifton Road NE., Mailstop E-79, Atlanta, 
Georgia 30333. Due to staff and equipment limitations, CDC cannot 
accept comments by facsimile or electronic mail.

FOR FURTHER INFORMATION CONTACT: For information concerning the 
revisions to the list of select agents and toxins that are under 
consideration should contact: Ms. Jennifer Brooks, National Center for 
Infectious Diseases, Office of the Director, 1600 Clifton Road NE., 
Mailstop C-12, Atlanta, Georgia 30333. Telephone: (404) 639-2763.

SUPPLEMENTARY INFORMATION:

Background

    President George W. Bush signed the Public Health Safety and 
Bioterrorism Preparedness and Response Act of 2002 (Public Law 107-188) 
on June 12, 2002. The Act specifies that the Secretary of the 
Department of Health and Human Services establish and maintain a list 
of biological agents and toxins that have the potential to pose a 
severe threat to public health and safety. The current list of select 
agents and toxins was published in the Federal Register on October 24, 
1996, and appears as Appendix A to 42 CFR part 72. This notice of 
intent is part of the rule-making process that will culminate in the 
publication of an Interim Final Rule. CDC anticipates publishing this 
rule in coordination with the U.S. Department of Agriculture on or 
before December 9, 2002.
    The Secretary directed the Centers for Disease Control and 
Prevention (CDC) to convene an inter-agency work group to review the 
current list of biological agents and toxins and revise the list as 
necessary. Members of the work group included representatives from the 
Department of Health and Human Services/Office of the Secretary (DHHS/
OS), the Centers for Disease Control and Prevention (CDC), the National 
Institutes of Health (NIH), the Food and Drug Administration (FDA), the 
Department of the Army (DoD/Army), the Department of the Navy (DoD/
Navy), the Department of the Air Force (DoD/AF), the U.S. Department of 
Agriculture (USDA), the Environmental Protection Agency (EPA), the 
Agency for Toxic Substances and Disease Registry (ATSDR), the 
Department of Labor/Occupational Safety and Health Administration 
(OSHA), the National Institute of Occupational Safety and Health (CDC/
NIOSH), the Department of Transportation (DoT), the Department of 
Commerce (DoC), Department of Energy (DoE), the Department of Justice 
(DoJ), the Federal Bureau of Investigation (FBI), the Central 
Intelligence Agency (CIA), the Defense Intelligence Agency (DoD/DIA), 
and the U.S. Postal Service (USPS).

The Current List of Select Agents and Toxins

    The current list of select agents and toxins was previously 
published in the Federal Register on October 24, 1996 and appears as 
Appendix A to 42 CFR part 72. In June 2002, CDC convened an interagency 
working group to review the current list of select agents and toxins 
and develop recommendations regarding possible changes to the list. CDC 
has reviewed those recommendations and this notice of intent seeks to 
solicit comments from the public on potential changes to the current 
list of select agents and toxins. Of the 36 select agents and toxins on 
CDC's current list, 18 of these appear on the USDA list of agents and 
toxins required under Section 212(a) and located in 9 CFR 121.2(a). 
These 18 agents and toxins appear on both the CDC and USDA lists since 
they pose a risk to both human and animal health. Because the process 
of changing the list of select agents and toxins was in the initial 
stages when USDA published its interim rule on August 8, 2002 and when 
this CDC notice of intent is being published, the list of agents and 
toxins found in both 42 CFR part 72, Appendix A, and 9 CFR 121.2(a) 
reflects the select agent list promulgated by CDC in October 1996. The 
notification requirement for persons in possession of any select agent 
as published by CDC on July 12, 2002 and USDA on August 8, 2002, 
applies to the current list of agents and toxins and is unaffected by 
the information solicited by this notice.

Summary of Changes to Appendix A, 42 CFR Part 72, That Are Under 
Consideration

    The following changes are being considered to the list of Viruses:
    1. Rename ``Equine Morbillivirus'' to ``Nipah and Hendra Complex 
viruses''.
    2. Change ``Tick-borne encephalitis complex viruses'' to ``Tick-
borne encephalitis complex (flavi) viruses (Central European Tick-borne 
encephalitis, Far Eastern Tick-borne encephalitis (Russian Spring and 
Summer encephalitis, Kyasanur Forest disease, Omsk Hemorrhagic 
Fever))''.
    3. Delete: ``Viruses causing hantavirus pulmonary syndrome'' and 
``Yellow fever virus''.
    4. Add: ``Monkeypox virus'' and ``Herpes B virus''.
    5. Remove: exemptions list since exemptions will be covered in the 
Interim Final Rule.
    The following changes are being considered to the list of Bacteria:
    1. Remove ``(Pseudomonas)'' from the name of ``Burkholderia 
(Pseudomonas) mallei'' and ``Burkholderia (Pseudomonas) pseudomallei''.
    2. Change ``Clostridium botulinum'' to ``Botulinum neurotoxin 
producing strains of Clostridium''.
    3. Remove the header: Rickettsiae and combine these agents with the 
agents in the bacteria list.
    4. Remove: exemptions list since this will be covered in the 
Interim Final Rule.
    The following change is being considered to the list of Fungi:
    1. Change Coccidioides immitis to Coccidioides immitis, C. 
posadasii.
    The following changes are being considered to the list of Toxins:
    1. Remove: ``Aflatoxins''.
    2. Change ``Botulinum toxins'' to ``Botulinum neurotoxins''.
    3. Change ``Shigatoxin'' to ``Shigatoxin and Shiga-like toxins''.
    The following change is being considered for Exemptions:
    1. Change ``Exemptions: Toxins for medical use, inactivated for use 
as vaccines, or toxin preparations for biomedical research use at an 
LD 50 for vertebrates of more than 100 nanograms per 
kilogram body weight are exempt. National standard toxins required for 
biologic potency testing as described in 9 CFR part 113 are exempt.'' 
to ``Exemptions: Toxin preparations containing [le] 1 mg of Botulinum 
neurotoxins; [le] 10 mg of Staphylococcal enterotoxins; or [le] 100 mg 
of Abrin, Clostridium perfringens epsilon toxin, Conotoxins, 
Diacetoxyscirpenol, Ricin, Saxitoxin, Shigatoxin and Shiga-like toxins, 
Tetrodotoxin, or T-2 toxin, are exempt. Toxin preparation stored in 
more than one location within a facility must be aggregated in 
determining if the exemption applies. The medical use of toxins for 
patient treatment are exempt.''

[[Page 54607]]

    The following changes are being considered to Recombinant 
Organisms/Molecules:
    1. Change title ``Recombinant Organisms/Molecules'' to ``Genetic 
Elements, Recombinant Nucleic Acids, and Recombinant Organisms''.
    2. Change ``1. Genetically modified microorganisms or genetic 
elements from organisms on Appendix A, shown to produce or encode for a 
factor associated with a disease. 2. Genetically modified 
microorganisms or genetic elements that contain nucleic acid sequences 
coding for any of the toxins listed in this Appendix, or their toxic 
subunits.'' to:
    ``1. Full length nucleic acids (synthetic or naturally derived) of 
any of the viruses listed in Appendix A.
    2. Nucleic acids (synthetic or naturally derived) of 100 
nucleotides or more in length of Variola major virus (smallpox virus).
    3. Nucleic acids (synthetic or naturally derived) of bacteria, 
fungi, or viruses listed in Appendix A that encode for either a 
functional toxin or virulence factor sufficient to cause disease if the 
nucleic acid is: (1) Expressed in vivo or in vitro; (2) in an 
expression vector or host chromosome; or (3) in a carrier plasmid.
    4. Nucleic acids (synthetic or naturally derived) that encode for 
functional form of any of the toxins listed in Appendix A if: (1) 
Expressed in vivo or in vitro; (2) in an expression vector or host 
chromosome; or (3) in a carrier plasmid.
    5. Microorganisms in Appendix A that have been genetically 
modified.''
    Finally, CDC is considering the following change to Additional 
Exemptions:
    1. Remove the following text since exemptions will be addressed in 
the Interim Final Rule:
    ``1. Products subject to regulation under the Federal Insecticide 
Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.) and the Toxic 
Substances Control Act (15 U.S.C. 2601 et seq.) are exempt.
    2. Additional exemptions for otherwise covered strains will be 
considered when CDC reviews and updates the list of select agents and 
toxins in this Appendix. Individuals seeking an exemption should submit 
a request to CDC that specifies the agent or strain to be exempted and 
explains why such an exemption should be granted. Future exemptions 
will be published in the Federal Register for review and comment prior 
to inclusion in this Appendix.''

List of Select Agents and Toxins

    The following is the list of select agents and toxins that is being 
considered for adoption:

Viruses

1. Crimean-Congo haemorrhagic fever virus
2. Eastern Equine Encephalitis virus
3. Ebola viruses
4. Herpes B virus
5. Lassa fever virus
6. Marburg virus
7. Monkeypox virus
8. Nipah and Hendra Complex viruses
9. Rift Valley fever virus
10. South American Haemorrhagic fever viruses (Junin, Machupo, Sabia, 
Flexal, Guanarito)
11. Tick-borne encephalitis complex (flavi) viruses (Central European 
Tick-borne encephalitis, Far Eastern Tick-borne encephalitis (Russian 
Spring and Summer encephalitis, Kyasanur Forest disease, Omsk 
Hemorrhagic Fever))
12. Variola major virus (Smallpox virus)
13. Venezuelan Equine Encephalitis virus

Bacteria

1. Bacillus anthracis
2. Brucella abortus
3. Brucella melitensis
4. Brucella suis
5. Burkholderia mallei
6. Burkholderia pseudomallei
7. Botulinum neurotoxin producing strains of Clostridium
8. Coxiella burnetii
9. Francisella tularensis
10. Rickettsia prowazekii
11. Rickettsia rickettsii
12. Yersinia pestis

Fungi

1. Coccidioides immitis
2. Coccidioides posadasii

Toxins

1. Abrin
2. Botulinum neurotoxins
3. Clostridium perfringens epsilon toxin
4. Conotoxins
5. Diacetoxyscirpenol
6. Ricin
7. Saxitoxin
8. Shigatoxin and Shiga-like toxins
9. Staphylococcal enterotoxins
10. Tetrodotoxin
11. T-2 toxin

    Exemptions: Toxin preparations containing [le]1 mg of Botulinum 
neurotoxins; [le]10 mg of Staphylococcal enterotoxins; or [le]100 mg of 
Abrin, Clostridium perfringens epsilon toxin, Conotoxins, 
Diacetoxyscirpenol, Ricin, Saxitoxin, Shigatoxin and Shiga-like toxins, 
Tetrodotoxin, or T-2 toxin, are exempt. Toxin preparation stored in 
more than one location within a facility must be aggregated in 
determining if the exemption applies. The medical use of toxins for 
patient treatment are exempt.

Genetic Elements, Recombinant Nucleic Acids, and Recombinant Organisms

    1. Full length nucleic acids (synthetic or naturally derived) of 
any of the viruses listed in Appendix A.
    2. Nucleic acids (synthetic or naturally derived) of 100 
nucleotides or more in length of Variola major virus (smallpox virus).
    3. Nucleic acids (synthetic or naturally derived) of bacteria, 
fungi, or viruses listed in Appendix A that encode for either a 
functional toxin or virulence factor sufficient to cause disease if the 
nucleic acid is: (1) Expressed in vivo or in vitro; (2) in an 
expression vector or host chromosome; or (3) in a carrier plasmid.
    4. Nucleic acids (synthetic or naturally derived) that encode for 
functional form of any of the toxins listed in Appendix A if: (1) 
Expressed in vivo or in vitro; (2) in an expression vector or host 
chromosome; or (3) in a carrier plasmid.
    5. Microorganisms in Appendix A that have been genetically 
modified.

Other Restrictions

    The deliberate transfer of a drug resistance trait to 
microorganisms listed in this Appendix that are not known to acquire 
the trait naturally is currently prohibited if such acquisition could 
compromise the use of the drug to control these disease agents in 
humans or veterinary medicine.

    Dated: August 9, 2002.
Julie Louise Gerberding,
Director, Centers for Disease Control and Prevention.
[FR Doc. 02-21512 Filed 8-20-02; 4:01 pm]
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