#  1100

December 6, 2007

Department of Homeland Security (DHS)

Bureau of Customs and Border Protection

Border Security Regulations Branch

1300 Pennsylvania Avenue NW (Mint Annex)

Washington, D.C. 20229

Attn: Mr. Michael Olszak

> RE: Proposed Rule - Issuance of a Visa and Authorization for Temporary
> Admission Into the United States for Certain Nonimmigrant Aliens
> Infected With HIV (HIV Waiver Application Proposal) -- Docket no.
> USCBP-2007-0084, RIN 1651-AA71, dated November 6, 2007 [^1]

To the DHS, Bureau of Border and Customs Protection:

Please accept these comments requesting DHS to withdraw the impractical
and unfair HIV Waiver Application Proposal cited above. These comments
ask DHS to prepare alternative rules, grounded in supportable and
compassionate public health policy, in keeping with internationally
accepted principles of reciprocity among the nations working together to
prevent and treat persons affected by HIV. In the longer term, DHS
should use its expertise and opportunity to inform Congressional leaders
to repeal the outmoded and insupportable statutory provisions of the
Immigration and Nationality Act [^2] that serve to bar immigration and
restrict travel on the basis of HIV status.

These comments are submitted as an individual whose advocacy and care
for human life has provide me with an opportunity to work full-time in
HIV education and services for over twenty years.

Other organizations, such Gay Men's Health Crisis (GMHC) and
ImmigrationEquality.org, [^3] will submit or have submitted
comprehensive comments detailing problems with the DHS proposal. These
remarks endorse those submittals.

However, I want to document the serious adverse consequences the HIV
Waiver Application Proposal would have on the scientific research the
United States conducts through government, private entity, academic and
philanthropic organizations to prevent and treat HIV. These adverse
consequences result when investigators, representatives of affected
international communities and others are unreasonably restricted and
effectively barred from entering the U.S. -- as this proposal would do
-- to attend conferences, participate in research or work with an
extended group of colleagues.

The United States HIV study effort far exceeds the scope of research
conducted elsewhere in terms of budget, person power, range and
commitment. By way of example, the U.S. funded \~85% of all global
public investment in HIV vaccine research and virtually all of such
research from philanthropic domestic sources. Similar percentages of
funding apply to all other HIV prevention research measures and to
HIV/AIDS treatment.[^4] NIH allocates approximately \~\$2.9 billion to
HIV/AIDS, an effort that all U.S. researchers have organized into a
global, partnership enterprise. The HIV Waiver Application Proposal
would reduce the cost-effectiveness of these investments by hampering
the interactions between the extended research community and its
partners in study populations.

NIH articulated the need to facilitate the face-to-face interactions
that come with permissive movement across borders for these humanitarian
and scientific purposes in its recent declaration on World AIDS Day this
past weekend. The NIH stated:

> Dr. Jack Whitescarver, NIH Associate Director for AIDS Research and
> director of the Office of AIDS Research (OAR), states, "On World AIDS
> Day, we confirm our commitment to the global fight against HIV/AIDS.
> This pandemic continues to wreak devastating consequences in every
> sector of society, affecting the stability of families and entire
> communities with profound economic and national security
> consequences."
>
> This year, the U.S. Department of Health and Human Services has
> adopted the World AIDS Day theme of "The Power of Partnerships" to
> remind us all---scientists, clinicians, policymakers, activists,
> communities, families, clinical study volunteers and individuals
> living with HIV---that only by working together can we bring an end to
> HIV/AIDS. NIH has established research partnerships with research
> institutions, non-governmental organizations, governments, industry,
> foundations, and representatives of affected communities in the United
> States and around the world.[^5]

Barriers to entry must be removed to accomplish this Health and Human
Services goal of international partnership.

But barriers persist. As is well-known by now, the International AIDS
Society (IAS), the leading global organization dedicated to the study of
HIV prevention and treatment efforts, has adopted an official policy
keeping the U.S. off limits as a meeting site for scientific conferences
due to the inequitable and discriminatory restrictions on travel imposed
on persons with HIV.[^6] IAS does not mince words in calling this DHS
proposal "deplorable."[^7] To the discredit of U.S. efforts to otherwise
be a world leader in addressing HIV, this country is singled out by IAS
as one of the most restrictive in its policies that act to add stigma to
persons with HIV and inhibit scientific inquiry that could mitigate
public health consequences. The HIV Waiver Application Proposal will
make matters worse if it is adopted.[^8] The full IAS policy paper cited
in the footnotes is submitted to be made part of the administrative
record in this rulemaking.

There is no supportable rationale to justify the DHS imposing the
unworkable restrictions of the waiver application when authoritative
leaders of the domestic science effort at NIH, CDC, other agencies and
at close to 200 domestic and international health organizations directly
contradict the alleged severity in public health on which the DHS bases
its proposal.[^9] The DHS perceived threat to health from communicable
disease or to resources simply does not exist. Consequently, the
crafting of a waiver of restrictions should track real and not assumed,
error driven public health assessments.

The HIV Waiver Application Proposal is at odds with notions of
international reciprocity and parity. The U.S. global programs to
prevent and treat HIV rely on workable travel permissions for U.S.
citizens involved in health care and with HIV to travel abroad
conveniently with minimal burden. The same respect must be offered for
those seeking to enter this country for scientific and research
purposes. Those purposes include not only formally organized meetings
but also other interactions with staffs, private and philanthropic
organizations, and planners that are part of the research process.
Research is quite literally, a "two way street."

For the reasons described here, please withdraw the proposed rulemaking.
DHS can beneficially meet with knowledgeable members of the HIV affected
community, persons living with HIV, the IAS, public health investigators
at NIH, CDC and elsewhere to develop a humane, practical and ethical
policy that removes restrictions. Those efforts will be even more
productive if DHS acts simultaneously to amend the underlying
legislation which makes a waiver procedure necessary and to lift the
statutory ban.

Please contact me if you have any additional questions.

Sincerely,

Steven F. Wakefield

1808 Bellevue Ave Apt 703

Seattle WA 98122

[^1]: <http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-21841.pdf>

[^2]: 8 U.S.C. §1182(a)(1). These statutory provisions lacked a public
    health rationale when they were enacted in 1993 since HIV is not
    casually transmitted. That lack is even more apparent today over 14
    years later when profound advances in HIV treatment and
    understanding of epidemiology, demographics and transmission have
    altered the public health situation significantly.

[^3]: <http://gmhc.org/> and <http://www.immigrationequality.org/> .

[^4]: *HIV Vaccines and Microbicides Resource Tracking Working Group.
    Building A Comprehensive Response. Funding for HIV Vaccines,
    Microbicides and Other New Prevention Options: 2000-2006.* HIV
    Vaccines and Microbicides Resource Tracking Working Group.
    <http://hivresourcetracking.org/content/RT_Report_Nov2007.pdf>

[^5]: <http://www3.niaid.nih.gov/about/directors/news/WAD07.htm>.

[^6]: IAS Policy Paper. Banning Entry of People Living with HIV/AIDS,
    dated November 16, 2007.
    [http://www.iasociety.org/Web/WebContent/File/ias_policy%20paper_08.pdf](http://www.iasociety.org/Web/WebContent/File/ias_policy paper_08.pdf)

[^7]: In comments to this rulemaking docket at document ID \#
    USCBP-200700084-0331, IAS also stated that the proposal "only serves
    to reinforce a bad policy that is clearly discriminatory and has no
    public health basis."

[^8]: Problems with the proposal are described in a preliminary GMHC
    analysis at <http://gmhc.org/policy/federal/travel_rule_p1.html> In
    the DHS rulemaking docket for this proposal, see comments submitted
    by Immigration Equality at document ID \# USCBP-2007-0084-0101.1

[^9]: In that regard, one of the leading international HIV medical
    experts, a past IAS President, and among the first in the nation to
    set standards of care for persons with HIV/AIDS, Dr. Paul
    Volberding, submitted comments in this rulemaking docket at document
    ID \# USCBP-2007-0084-0171. He stated: "For the US, which has
    assumed a laudable leadership in HIV science and global treatment,
    to have such an uninformed, misguided and unnecessary policy on our
    visitors is more than unfortunate."