Biological and Chemical Weapons: Criminal Sanctions and Federal Regulations

CRS Report for Congress
Biological and Chemical Weapons:
Criminal Sanctions and
Federal Regulations
February 5, 2004
Michael John Garcia
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Biological and Chemical Weapons: Criminal Sanctions
and Federal Regulations
Summary
The Biological Weapons Convention and the Chemical Weapons Convention,
both of which have been signed and ratified by the United States, obligate signatory
parties to enact legislation or otherwise restrict the development, use, and acquisition
of biological and chemical weapons within their territorial jurisdiction. In
accordance with these obligations, the United States has enacted various federal
requirements and criminal sanctions applying to biological and chemical weapons.
Recent anti-terrorism legislation, such as the USA PATRIOT Act, amended many of
these provisions, broadening the scope of criminal sanctions relating to the use of
biological and chemical weapons and materials. Further, a number of miscellaneous
statutory provisions dealing with terrorism and weapons of mass destruction also
covers chemical and biological materials in the context of restrictions on specific
types of actions. Additionally, the United States has adopted strict regulations and
licensing procedures concerning the acquisition, handling, and transfer of biological
agents.

Contents
In troduction ..................................................1
International Law..............................................1
Domestic Law................................................2
A. Biological Weapons, 18 U.S.C. §§ 175 - 178.................2
B. Chemical Weapons: 18 U.S.C. §§ 229 et seq..................3
C. Miscellaneous Statutory Provisions.........................4
D. Biological Agents and Federal Regulations...................9

Biological and Chemical Weapons: Criminal
Sanctions and Federal Regulations
Introduction
This report reviews criminal sanctions attaching to the development, production,
possession, and use of biological and chemical weapons. It also addresses certain
federal regulations attaching to the development, production, and transportation of
biological agents. It does not cover rules and restrictions specifically focusing on
aviation or military facilities.
International Law
The United States has signed and ratified the Biological Weapons Convention
(“BWC”) and the Chemical Weapons Convention (“CWC”). Both the BWC and the
CWC oblige signatory states to implement domestic legislation. Article VII of the
BWC requires each signatory state to enact legislation or otherwise prohibit
violations of the Convention committed within its territorial jurisdiction or in areas¹
within its control. Prohibited acts include the development, production, stockpiling,
acquisition, and retention of biological weapons. Article VII of the CWC requires
state parties to enact penal legislation proscribing activities prohibited by the
Convention.²

¹ See Convention on the Prohibition of the Development, Production, and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972,
26 U.S.T. 583, 1015 U.N.T.S. 163. See generally CRS Report RL31059, Biological
Weapons: A Primer.
² See Convention on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on Their Destruction, Jan. 13, 1993, reprinted in 32 I.L.M. 800
(1993) (ratified by the United States on April 25, 1997). The Convention requires signatory
states to “prohibit natural and legal persons” within their jurisdiction from “undertaking any
activity prohibited to a State Party under this Convention,” and requires signatories to enact
penal legislation with respect to such activity. Id. at Art. VII, P1(a). Moreover, a state
obligates itself to “extend its penal legislation enacted under subparagraph (a) to any activity
prohibited to a State Party under this Convention undertaken anywhere by natural persons,
possessing its nationality, in conformity with international law.” Id. at Art. VII, P 1(c). It
has been noted that this subparagraph requires that penal legislation conform to international
law, but does not require it to a signatory state’s constitution. Ronald Rotunda, The
Chemical Weapons Convention: Political and Constitutional Issues, 15 C^ONST.
C^OM^M^E^NTARY 131, 159 n. 6 (2001). One observer has concluded that “it is not a defense,
under this subparagraph, that the United States refuses to enact penal legislation on the
grounds that it violates our Constitution.” Id.

Domestic Law
A. Biological Weapons, 18 U.S.C. §§ 175 - 178. 18 U.S.C. sections 175
- 178 are the primary legal framework restricting the use and development of
biological agents, toxins, and delivery systems.³ Section 178(1) broadly defines
biological “agents” as including any “microorganism (including, but not limited to,
bacteria, viruses, fungi, rickettsiae or protozoa), or infectious substance,” or any
naturally occurring or engineered part of any such microorganism or infectious
substance that is capable of causing (1) biological malfunction, like death or disease,
in a living organism; (2) deterioration of food, water, equipment, supplies, or
material of any kind; or (3) deleterious alteration of the environment.
For purposes of 18 U.S.C. §§ 175 - 178, “toxin” is defined under section 178(2)
as “toxic material of plants, animals, microorganisms (including, but not limited to,
bacteria, viruses, fungi, rickettsiae or protozoa), or infectious substances, or a
recombinant or synthesized molecule, whatever their origin or method of
production....” This definition includes “any poisonous substance or biological
product that may be engineered as a result of biotechnology produced by a living
organism” or “any poisonous isomer or biological product, homolog, or derivative⁴
of such a substance.”
Section 178(3)’s definition of “delivery system” includes “any apparatus,
equipment, device, or means of delivery specifically designed to deliver or⁵
disseminate a biological agent, toxin, or vector; or any vector.”
General Offenses. Section 175(a) prohibits the knowing development,
production, stockpiling, transfer, acquisition, retention, or possession of any
biological agent, toxin, or delivery system for use as a weapon. Attempts, threats,
and conspiracies to commit a proscribed act are also punishable.⁶ The statute also
prohibits persons from knowingly assisting, or attempting, threatening, or conspiring
to assist, a foreign state or organization in committing an offense listed under section⁷
175. Pursuant to section 175(c), the use of biological agents, toxins, or delivery
systems for “prophylactic, protective, bona fide research, or other peaceful purposes”
is exempted from the requirements generally imposed by section 175.
Section 175 provides that the federal government enjoys extraterritorial
jurisdiction to enforce the section’s provisions in relation to an offense committed by

³ See also 42 C.F.R. §§ 72.1-72.7 (regulating the transportation of biological products,
biological materials, and etiologic agents, and subjecting violators to fines up to $500,000
and imprisonment for up to five years.)
⁴ 18 U.S.C. § 178(2).
⁵ Section 178(4) defines “vector” as a living organism, or molecule, including a recombinant
or synthesized molecule, capable of carrying a biological agent or toxin to a host.
⁶ 18 U.S.C. § 175(a).
⁷ Id.

or against a U.S. national.⁸ Persons found to have violated section 175(a) are subject
to a fine and/or imprisonment for any term of years or life.⁹
Possession Offenses. Section175(b), as amended by the USA PATRIOT
Act, imposes a broader prohibition on the use and development of biological agents
and related materials than section 175(a). Specifically, section 175(b) prohibits persons
from knowingly possessing “any biological agent, toxin, or delivery system of a type
or in a quantity that, under the circumstances, is not reasonably justified by a¹⁰
prophylactic, protective, bona fide research, or other peaceful purpose.” Violators of
this provision are subject to a fine and/or imprisonment for up to 10 years. For
purposes of section 175(b), the terms “biological agent” and “toxin” do not
“encompass any biological agent or toxin that is in its naturally occurring environment,
if the biological agent or toxin has not been cultivated, collected, or otherwise extracted
from its natural source.”
An additional possession offense for biological agents provided under section
175b, which prohibits restricted classes of persons from possessing, shipping, or
transporting certain, listed biological agents.¹¹ Persons found to have violated this¹²
section are subject to a fine and/or imprisonment for up to 10 years.
B. Chemical Weapons: 18 U.S.C. §§ 229 et seq. 18 U.S.C. sections 229-
229F restricts the use and development of chemical weapons. Section 229F provides
three, integrated definitions of “chemical weapon”: (1) “A toxic chemical and its
precursors,” unless it is intended for a purpose otherwise permitted under section 229;
(2) “A munition or device, specifically designed to cause death or other harm” through
the release of “toxic properties of those toxic chemicals” defined in definition (1); and
(3) “Any equipment specifically designed for use directly in connection with the
employment of munitions or devices” specified in definition (2).¹³
Pursuant to section 229(a), it is unlawful for a person to knowingly “develop,
produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain,
own, possess, or use, or threaten to use any chemical weapon.” Additionally, it is
unlawful for any person to assist or induce any person to commit of violation of section

⁸ 18 U.S.C. § 175(a).
⁹ Id.
¹⁰ 18 U.S.C. § 175(b) (emphasis added).
¹¹ 18 U.S.C. § 175b(a)(1). For purposes of section 175b, the term “restricted person”
includes, inter alia, an individual who (1) is under indictment for or has been convicted of
a crime punishable by a term exceeding a year, (2) is a fugitive, (3) is an unlawful user of
a controlled substance, (4) is an alien unlawfully in the United States, (5) has been
committed to any mental institution, or (6) has been dishonorably discharged from the armed
services. 18 U.S.C.§ 175b(d)(2)
¹² 18 U.S.C. § 175b(a)(2).
¹³ 18 U.S.C. § 229F(1).

229, or to conspire or attempt to do the same.¹⁴ A person who acts in violation of
section 229 is subject to a fine and/or imprisonment for any term of years, except in
cases where the violation results in the death of another person, in which case the
offender is subject to life imprisonment or death.¹⁵ Criminal liability extends
extraterritorially when an offense under section 229 is committed by or against a U.S.
national or is committed against property owned, leased, or used by the United States.¹⁶
A person who commits an offense under section 229 may also be subject to a civil
penalty not exceeding $100,000 for each violation.¹⁷
Governmental agencies and departments and those authorized by law, such as a
member of the armed services authorized to receive chemical weapons, are exempted
from the above-mentioned provisions, as are those who, in an emergency situation,
attempt to destroy or seize a chemical weapon.¹⁸
C. Miscellaneous Statutory Provisions. While sections 175-178 and
sections 229-229F deal broadly with the use and delivery of biological and chemical
weapons and agents, a number of other statutory provisions covers these materials in
the context of restrictions on specific types of actions. This subsection will detail
certain provisions of particular relevance to domestic, non-aviation, security.
Mailing Injurious Articles, 18 U.S.C. § 1716. Section 1716 defines
categories of nonmailable items and outlines conditions for prosecuting those who send
prohibited items through the mails. Notable “nonmailable” items subject to restriction
under section 1716 include, inter alia, (1) “all kinds of poisons,” (2) “all articles and
compositions containing poison,” (3) “chemical devices . . . which may ignite or
explode,” (4) “all disease germs,” and (5) “all other natural or artificial articles,
compositions, or material which may kill or injure another, or injure the mails or other
property.”¹⁹ Except in specified circumstances, the Postal Service may waive these
prohibitions for mailings that comply with relevant rules and regulations.²⁰
In general, a person who knowingly mails a prohibited item is subject to a fine
and/or imprisonment for up to a year.²¹ However, a person who knowingly mails a
prohibited item with an intent to kill or injure a person, or with an intent to injure the
mails or other property, is subject to a fine and/or imprisonment for up to twenty
years.²² Further, if death results from the knowing mailing of a prohibited substance,

¹⁴ 18 U.S.C. § 229(a)(2).
¹⁵ 18 U.S.C. § 229A(a).
¹⁶ 18 U.S.C. § 229(c).
¹⁷ 18 U.S.C. § 229A.
¹⁸ See 18 U.S.C. § 229(b).
¹⁹ 18 U.S.C. § 1716(a).
²⁰ See 18 U.S.C. § 1716(b)-(h).
²¹ 18 U.S.C. § 1716(j)(1).
²² 18 U.S.C. § 1716(j)(2).

the person or persons responsible for the knowing mailing are also subject to the death
penalty or life imprisonment.²³
Weapons of Mass Destruction and Terrorism, 18 U.S.C. § 2332a. An
offense under section 2332a is committed when a person, “without lawful authority,
uses, threatens, or attempts or conspires to use, a weapon of mass destruction” other²⁴
than a chemical weapon as that term is defined by 18 U.S.C. § 229F. Section 2332a
defines the term “weapon of mass destruction” as including any weapon:
(1) designed or intended to cause death or serious bodily injury
through the release, dissemination, or impact of toxic or poisonous
chemicals, or their precursors;
(2) involving a biological agent, toxin, or vector as those terms
are defined under 18 U.S.C. § 178;
(3) designed to release radiation or radioactivity at a level
dangerous to human life; or ²⁵
(4) that is a “destructive device” under 18 U.S.C. § 921.
A violation of section 2332a is generally punishable by imprisonment for any term
of years or for life when it is directed against (1) a United States national abroad; (2)
any person in the United States, when the action affects or would have affected
interstate commerce; or (3) the domestic or foreign property of the United States²⁶
government. However, if death results from the offense, the offender may also be
subject to the death penalty.²⁷
Criminal liability under section 2332a attaches extraterritorially to any United
States national outside the territorial jurisdiction of the United States who uses,
threatens to use, or attempts or conspires to use, a weapon of mass destruction other²⁸
than a chemical weapon.
Acts of Terrorism Transcending National Boundaries. 18 U.S.C. section
2332b(a) prohibits persons from attempting, threatening, conspiring to commit, or
engaging in actions that may cause serious bodily injury or property damage, when
such conduct transcends national borders and an additional circumstance listed under
section 2332b(b) is satisfied. These additional circumstances include, inter alia:

²³ 18 U.S.C. § 1716(j)(3).
²⁴ It is unclear whether a “hoax” constitutes a “threat” under this section. See, e.g., Barry
Kellman, Biological Terrorism: Legal Measures for Preventing a Catastrophe, 24 H^ARV.
J.L.&P^UB.P^OL’^Y 417, 467 (2001).
²⁵ 18 U.S.C. § 2332a(c). Section 921 defines the term “destructive device” as including,
inter alia, any “explosive, incendiary, or poison gas” bomb, grenade, rocket, missile, mine,
or other similar device. 18 U.S.C. § 921(a)(4)(A).
²⁶ 18 U.S.C. § 2332a(a).
²⁷ Id.
²⁸ 18 U.S.C. § 2332a(b).

(1) the mail or any facility of interstate or foreign commerce
being used in furtherance of the offense;
(2) the offense affecting interstate or foreign commerce had the
offense been consummated;
(3) the victim or intended victim being the United States
Government, a member of the armed forces, or an official,
employee, officer, agent, department, or agency of the United
States; or
(4) the property that is affected or would have been affected by
the offense being, in whole or in part, owned, possessed, or leased
to the United States.²⁹
A person found to have violated section 2332b is subject to imprisonment for a
term that is dependant on the nature of the offense committed,³⁰ with violations
resulting in death being punishable by death or imprisonment for life or for any term
of years.³¹ Jurisdiction over offenses covered by section 2332b applies
extraterritorially.³² Further, jurisdiction exists over all co-conspirators and accessories
after the fact for any offense under section 2332b, so long as the circumstances
described in section 2332b(b) apply to at least one offender.³³
Terrorist Bombings of Places of Public Use and Government
Facilities. Section 2332f prohibits the unlawful delivery, discharge, or detonation of
“an explosive or other lethal device in, into, or against a place of public use, a state or
government facility, a public transportation system, or an infrastructure facility” with
the intent to cause death, serious bodily injury, or extensive property damage.³⁴ Lethal
devices covered under section 2332f include those devices designed or having “the
capability to cause death, serious bodily injury, or substantial property damage through
the release, dissemination, or impact of toxic chemicals, biological agents, or toxins ...
or radioactive material.” Persons who attempt or conspire to commit offenses under
section 2332f are also subject to criminal penalties under the statute.³⁵ Persons found
to have violated section 2332f are subject to the penalties provided under section

2332a(a), including imprisonment and death.³⁶

²⁹ 18 U.S.C. § 2332b(b).
³⁰ For example, a person who maimed another in violation of section 2332b is subject to
imprisonment for not more than 35 years, while a person who threatened to commit a
violation of section 2332b is subject to imprisonment for not more than 10 years. 18 U.S.C.
§ 2332b(c).
³¹ Id.
³² 18 U.S.C. § 2332b(e).
³³ 18 U.S.C. § 2332b(b)(2).
³⁴ 18 U.S.C. § 2332f(a).
³⁵ 18 U.S.C. § 2332f(a)(2).
³⁶ See supra p. 5.

For either territorial or extraterritorial jurisdiction to be triggered under section
2332f, certain additional criteria must be satisfied. If the offense takes place in the
United States, there is jurisdiction if:
(1) the offense is committed against another state or one of its
facilities, including an embassy or consular premise;
(2) the offense is committed in an attempt to compel the United
States or another state to do or abstain from doing any act;
(3) the offense is committed aboard a foreign vessel or aircraft;
(4) a perpetrator of the offense is found outside the United States;
(5) a perpetrator of the offense is a national of another state or a
stateless person; or
(6) a victim of the offense is a national of another state or a
stateless person.³⁷
If an offense under section 2332f takes place outside the United States, the United
States jurisdiction attaches when:
(1) a perpetrator is a national of the United States or is a stateless
person who habitually resides in the United States;
(2) a victim of the offense is a national of the United States;
(3) a perpetrator of the offense is found in the United States;
(4) the offense is committed in an attempt to compel the United
States to do or abstain from committing an act;
(5) the offense is committed against a facility of the United States,
including an embassy or consular premise;
(6) the offense is committed aboard either a vessel flying the flag
of the United States or an aircraft registered under the laws of the
United States; or
(7) the offense is committed aboard an aircraft operated by the
United States.³⁸
Military activities are excluded from jurisdiction under section 2332f, as are
offenses committed by persons who are U.S. citizens against victims that are also U.S.
citizens.³⁹ Jurisdiction is also excluded under section 2332f when its basis is
predicated solely on the nationality of a victim or offender, and the offense has no
substantial effect on foreign or interstate commerce.⁴⁰
Terrorist Attacks and Other Acts of Violence against Mass
Transportation Systems. 18 U.S.C. section 1993 prohibits certain listed acts that
could wreck, derail, or disable mass transportation systems. Specifically, the statute
prohibits a person from willfully placing “any biological agent or toxin for use as a
weapon, destructive substance, or destructive device” in or near a mass transportation

³⁷ 18 U.S.C. § 2332f(b)(1).
³⁸ 18 U.S.C. § 2332f(b)(2).
³⁹ See 18 U.S.C. § 2332f(d).
⁴⁰ 18 U.S.C. § 2332f(d)(3).

system when the person knows or has reason to know that such activity would likely
wreck, derail, or disable a mass transportation vehicle.⁴¹ Persons who attempt or
conspire to commit an act prohibited under section 1993, or knowingly convey or cause
to be conveyed false information concerning an attempt or alleged attempt to commit
an offense listed under section 1993, are also subject to liability under the statute.⁴²
In general, a person who violates the provisions of section 1993 is subject to a fine
and/or imprisonment for up to 20 years, if (1) the offense concerns an act or threat to
act against a mass transportation provider engaged in or affecting interstate commerce
or (2) in the course of committing the act, the offender travels, communicates, or
transports relevant materials across a state line.⁴³ However, if an offense under section
1993 concerns a mass transportation vehicle or ferry that was carrying a passenger or
the offense resulted in the death of any person, the offender is subject to a fine and/or
imprisonment for a term of years or for life.⁴⁴
Instruction of the Use or Application of Explosives or Incendiary
Devices. 18 U.S.C. section 231(a)(1) forbids persons from teaching or demonstrating
the use, application, or making of any “explosive or incendiary device, or technique
capable of causing injury or death to persons, knowing, or having reason to know, or
intending that the same will be unlawfully employed for use in, or in furtherance of, a
civil disorder.” Violation of this section is punishable by fine or imprisonment for up
to five years.⁴⁵
Harboring or Concealing Terrorists. 18 U.S.C. section 2339 makes it
illegal for a person to harbor or conceal “any person who he knows, or has reasonable
grounds to believe, has committed, or is about to commit, an offense under . . .section

175 (relating to biological weapons), section 229 (relating to chemical weapons) . . .

section 2332a (relating to weapons of mass destruction), [or] section 2332b (relating⁴⁶
to acts of terrorism transcending national boundaries)....” Violation of this provision
is punishable by fine and/or imprisonment for up to 10 years.⁴⁷
Providing Material Support to Terrorists. 18 U.S.C. § 2339A makes it
illegal for persons to knowingly or intentionally provide material support or resources
for listed terrorist activities, including, inter alia, violations of statutes previously⁴⁸
discussed in this report. Section 2339A further makes it illegal for a person to
knowingly or intentionally conceal or disguise the nature, location, source, or
ownership of material support or resources that are to be used in preparation for or in

⁴¹ 18 U.S.C. § 1993(a)(3).
⁴² 18 U.S.C. § 1993(a)(7), (a)(8).
⁴³ 18 U.S.C. § 1993(a).
⁴⁴ 18 U.S.C. § 1993(b).
⁴⁵ 18 U.S.C. § 231(a).
⁴⁶ 18 U.S.C. § 2339(a).
⁴⁷ Id.
⁴⁸ 18 U.S.C. § 2339A(a).

the carrying out of listed terrorist activities.⁴⁹ A person violating section 2339A is
generally subject to a fine and imprisonment for up to 15 years.⁵⁰ If the violation
results in the death of any person, however, the person violating section 2339A is
subject to imprisonment for any term of years or life.⁵¹
D. Biological Agents and Federal Regulations.
Scope. In 1996, the Centers for Disease Control tightened existing regulations
pertaining to the “acquisition, transfer, packaging, labeling, or handling of biological
agents,”⁵² confining the possession of pathogens to highly regulated and controlled
research and commercial facilities. Further, biological products introduced into the
stream of commerce must meet Food and Drug Administration licensing⁵³⁵⁴
requirements, as do producers of those products. Manufacturers, distributors, and
other market participants face record keeping, reporting, inspection, and testing⁵⁵
requirements. The transfer and shipping of biological agents is also highly
scrutinized.⁵⁶ Federal regulations also attach to the importation of pathogens.⁵⁷
Penalties. Violations of these regulations trigger varied penalties. For instance,
individuals who violate regulations pertaining to the interstate shipment of certain
biological agents face fines of up to $250,000 and/or imprisonment of up to one year.⁵⁸⁵⁹
Organizations doing the same face fines of up to $500,000 per event. Other penalties
involve the revocation or suspension of an organizations or individual’s license.⁶⁰

⁴⁹ Id.
⁵⁰ Id.
⁵¹ Id.
⁵² Kellman, 24 H^ARV.J.L.&P^UB.P^OL’^Y at 450.
⁵³ See 21 C.F.R. §§ 601.4, 601.20 (addressing biological licensing terms and conditions).
⁵⁴ See 42 U.S.C. § 262(a).
⁵⁵ See, e.g., 9 C.F.R. § 116 (outlining an extensive record keeping and reporting requirement
for producers of biological products); 21 C.F.R. § 601.20 (outlining a testing procedure to
ensure the products are safe, pure, and potent); 21 C.F.R. § 600.81 (outlining record keeping
and reporting requirements concerning product distribution); 21 C.F.R §§ 600.20-22
(inspection protocols).
⁵⁶ See, e.g., 42 C.F.R. § 72.6.
⁵⁷ See, e.g., 42 C.F.R. §§ 71.54(a), 72.3, 72.6(g).
⁵⁸ See 42 C.F.R. § 72.7.
⁵⁹ Id.
⁶⁰ See, e.g., 21 C.F.R. §§ 601.5, 601.6.