Skip to Content

Rule

Chemical Weapons Convention Regulations

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Start Preamble Start Printed Page 24918

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

On April 25, 1997, the United States ratified the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the Chemical Weapons Convention (CWC or Convention). The Bureau of Industry and Security (BIS) published an interim rule, on December 30, 1999, that established the Chemical Weapons Convention Regulations (CWCR) to implement the provisions of the CWC affecting U.S. industry and other U.S. persons. The CWCR include requirements to report certain activities, involving scheduled chemicals and unscheduled discrete organic chemicals, and to provide access for on-site verification by international inspectors of certain facilities and locations in the United States. This final rule updates the CWCR to remove outdated provisions and include additional requirements identified in the implementation of the CWC and by clarifying other CWC requirements.

DATES:

This rule is effective April 27, 2006. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.

ADDRESSES:

You may submit comments, identified by RIN 0694-AB06, by any of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
  • E-mail: public.comments@bis.doc.gov. Include “RIN 0694-AB06” in the subject line of the message.
  • Fax: (202) 482-3355. Please alert the Regulatory Policy Division, by calling (202) 482-2440, if you are faxing comments.
  • Mail or Hand Delivery/Courier: Willard Fisher, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, ATTN: RIN 0694-AB06.
Start Further Info

FOR FURTHER INFORMATION CONTACT:

For questions of a general or regulatory nature, contact the Regulatory Policy Division, telephone: (202) 482-2440. For program information on declarations, reports, advance notifications, chemical determinations, recordkeeping, inspections and facility agreements, contact the Treaty Compliance Division, Office of Nonproliferation and Treaty Compliance, telephone: (703) 605-4400; for legal questions, contact Rochelle Woodard, Office of the Chief Counsel for Industry and Security, telephone: (202) 482-5301.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

I. Summary of CWCR Changes Contained in This Final Rule

On April 25, 1997, the United States ratified the Convention on the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the Chemical Weapons Convention (CWC or Convention). The CWC, which entered into force on April 29, 1997, is an arms control treaty with significant nonproliferation aspects. As such, the CWC bans the development, production, stockpiling or use of chemical weapons and prohibits States Parties to the CWC from assisting or encouraging anyone to engage in a prohibited activity. The CWC provides for declaration and inspection of all States Parties' chemical weapons and chemical weapon production facilities, and oversees the destruction of such weapons and facilities. To fulfill its arms control and nonproliferation objectives, the CWC also establishes a comprehensive verification scheme and requires the declaration and inspection of facilities that produce, process or consume certain “scheduled” chemicals and unscheduled discrete organic chemicals, many of which have significant commercial applications. The CWC also requires States Parties to report exports and imports and to impose export and import restrictions on certain chemicals. These requirements apply to all entities under the jurisdiction and control of States Parties, including commercial entities and individuals. States Parties to the CWC, including the United States, have agreed to this verification scheme in order to provide transparency and to ensure that no State Party to the CWC is engaging in prohibited activities.

The Chemical Weapons Convention Implementation Act of 1998 (the Act or CWCIA) (22 U.S.C. 6701 et seq.), enacted on October 21, 1998, authorizes the United States to require the U.S. chemical industry and other private entities to submit declarations, notifications and other reports and also to provide access for on-site inspections conducted by inspectors sent by the Organization for the Prohibition of Chemical Weapons. Executive Order (E.O.) 13128 delegates authority to the Department of Commerce to promulgate regulations, obtain and execute warrants, provide assistance to certain facilities, and carry out appropriate functions to implement the CWC, consistent with the Act. The Department of Commerce implements CWC import restrictions under the authority of the International Emergency Economic Powers Act, the National Emergencies Act, and E.O. 12938, as amended by E.O. 13128. The Departments of State and Commerce have implemented the CWC export restrictions under their respective export control authorities. E.O. 13128 designates the Department of State as the United States National Authority (USNA) for purposes of the CWC and the Act.

On December 30, 1999, the Bureau of Industry and Security (BIS), U.S. Department of Commerce, published an interim rule that established the Chemical Weapons Convention Regulations (CWCR) (15 CFR Parts 710-722). The CWCR implemented the provisions of the CWC, affecting U.S. industry and U.S. persons, in accordance with the provisions of the Act. This final rule revises the CWCR by updating them to remove outdated provisions (e.g., the initial declaration requirements in parts 713, 714, and 715) and include additional requirements identified as necessary for the implementation of the CWC provisions and by clarifying other CWC requirements. The changes made by this rule were addressed in a proposed rule and request for public comments that BIS published on December 7, 2004.

Specifically, this final rule makes the following revisions to the CWCR:

A. Revisions to Section 710.1 of the CWCR (Definitions of Terms Used in the CWCR)

This rule revises § 710.1 of the CWCR by amending the definition of “domestic transfer” to clarify that the term, as applied to the declaration requirements for Schedule 2 or Schedule 3 chemicals under the CWCR, means the movement of a Schedule 2 or Schedule 3 chemical, in quantities and concentrations greater than the specified thresholds under the convention, outside the geographical boundary of a facility in the United Start Printed Page 24919States to another destination in the United States, for any purpose.

This rule adds a definition for the term “intermediate” to § 710.1 of the CWCR in order to clarify the use of that term in § 712.5(d) and Supplement No. 2 to part 715 of the CWCR. Section 710.1 of the CWCR is amended to define “intermediate” as “a chemical formed through chemical reaction that is subsequently reacted to form another chemical.” The definition of “intermediate” also clarifies its use in §§ 712.5(d), 713.2(a)(2)(ii) and 714.1(a)(2)(ii), whereby Schedule 1, Schedule 2 and Schedule 3 chemicals that are intermediates, but not transient intermediates, must be considered when determining if a chemical is subject to declaration. Lastly, Supplement No. 2 to part 715 of the CWCR, which provides examples of unscheduled discrete organic chemicals (UDOCs) and UDOC production, indicates that intermediate UDOCs used in a single or multi-step process to produce another declared UDOC are not subject to declaration requirements under the CWCR.

In addition, this rule adds a definition of the term “advance notification” to § 710.1 of the CWCR to clarify the use of that term in part 712 of the CWCR. Section 710.1 of the CWCR defines “advance notification” to mean “a notice informing BIS of a company's intention to export to or import from a State Party a Schedule 1 chemical.” Advance notifications must be submitted to BIS at least 45 days prior to the proposed export or import, except for exports or imports of 5 milligrams or less of saxitoxin for medical/diagnostic purposes which may be submitted to BIS at least 3 days prior to export or import. The definition contained in this rule also indicates that this notification requirement is in addition to any export license requirement under the Export Administration Regulations (EAR) (15 CFR Parts 730-799) or the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), or import license requirement under the Alcohol, Tobacco, Firearms and Explosives Regulations (27 CFR part 447).

The definition of the term “production” in § 710.1 of the CWCR is revised by adding certain notes that incorporate decisions by the Organization for the Prohibition of Chemical Weapons' Conference of the States Parties (OPCW/CSP) regarding the production of Schedule 1, 2, and 3 chemicals. The first note clarifies that the production of Schedule 1 chemicals includes “formation through chemical synthesis as well as processing to extract and isolate Schedule 1 chemicals.” The second note clarifies that the “production” of a Schedule 2 or Schedule 3 chemical “means all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.”

This rule adds a definition of the term “production by synthesis” in § 710.1 of the CWCR to clarify the use of the term in § 715.1 of the CWCR (i.e., declaration of production by synthesis of UDOCs for purposes not prohibited by the CWC) and Supplement No. 2 to part 715 of the CWCR (i.e., examples of activities that are not considered to be production by synthesis under part 715 of the CWCR). Section 710.1 of the CWCR defines “production by synthesis” to mean “production of a chemical from its reactants.” This definition replaces the definition of the term “synthesis” in § 710.1 of the CWCR. In addition, a new Supplement No. 2 is added to Part 710 of the CWCR to define the types of production covered under the CWCR.

This rule also amends § 710.1 of the CWCR to add a definition of the term “protective purposes,” as it relates to Schedule 1 chemicals, stating that protective purposes means any purpose directly related to protection against toxic chemicals and to protection against chemical weapons.

Finally, this rule amends § 710.1 of the CWCR by adding a definition of the term “transient intermediate” in order to clarify the scope of the declaration requirements that apply to the production of certain scheduled chemicals. Section 710.1 of the CWCR defines the term “transient intermediate” to mean “any chemical that is produced in a chemical process, but that only exists for a very short period of time and cannot be isolated, even by modifying or dismantling the plant, altering the chemical production process operating conditions, or stopping the chemical production process altogether.”

B. Amendments to Section 710.2 of the CWCR (Scope of the CWCR)

This rule amends § 710.2(a) of the CWCR by removing the phrase “The CWCR declaration, reporting, and inspection requirements apply * * *” from that paragraph. Removal of this phrase clarifies which persons and facilities are generally subject to the provisions of the CWCR.

C. Amendments to Section 710.6 of the CWCR (Relationship Between the CWCR and the Export Administration Regulations)

This rule amends § 710.6 of the CWCR to include a reference to Export Control Classification Number (ECCN) 1C395 on the Commerce Control List (CCL), which is in Supplement No. 1 to part 774 of the EAR. ECCN 1C395 controls the following items: (i) mixtures that contain more than 10 percent, but less than 30 percent, by weight of any single CWC Schedule 2 chemical identified in ECCN 1C350.b and (ii) certain medical, analytical, diagnostic and food testing kits that contain CWC Schedule 2 or Schedule 3 chemicals controlled by ECCN 1C350.b or .c, respectively, in an amount not exceeding 300 grams per chemical.

D. Amendments to Supplement No. 1 to Part 710 of the CWCR (List of States Parties to the CWC)

This rule amends Supplement No. 1 to part 710 of the CWCR (States Parties to the Convention on The Prohibition of The Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction) by updating the list of States Parties to include the following recent additions: Afghanistan, Andorra, Antigua and Barbuda, Azerbaijan, Belize, Bhutan, Cambodia, Cape Verde, Chad, Colombia, Democratic Republic of the Congo, Djibouti, Dominica, Eritrea, Gabon, Grenada, Guatemala, Haiti, Honduras, Jamaica, Kazakhstan, Kiribati, Kyrgyzstan, Liberia, Libya, Madagascar, Malaysia, Marshall Islands, Micronesia (Federated States of), Mozambique, Nauru, Niue, Palau, Rwanda, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa, San Marino, Sao Tome and Principe, Serbia and Montenegro, Sierra Leone, Solomon Islands, Thailand, Timor Leste, Tonga, Tuvalu, Uganda, United Arab Emirates, Vanuatu, Yemen, and Zambia. As of March 25, 2006, 178 countries had become States Parties to the CWC.

E. Amendments to Part 711 of the CWCR (General Information Regarding Declaration, Reporting and Advance Notification Requirements)

This rule adds a new § 711.3 that establishes BIS's authority to contact any company to determine whether it is in compliance with the CWCR. Information requested may relate to the production, processing, consumption, export, import, or other activities involving scheduled chemicals and UDOCs described in Parts 712 through 715 of the CWCR. Any person or facility Start Printed Page 24920subject to the CWCR and receiving such a request for information will be required to provide a response to BIS within the time-frame specified in the request. However, this requirement does not, in itself, impose a requirement to create new records or maintain existing records.

This rule amends § 711.3 of the CWCR by moving it to § 711.4 and specifying a time period within which BIS will respond to chemical determination requests. BIS will respond, in writing, to a chemical determination request within 10 working days of receipt of the request.

This rule removes the declaration and reporting requirements in § 711.4 of the CWCR concerning activities that occurred prior to December 30, 1999, since these requirements should already have been satisfied. A new § 711.7 is added to provide information on where to submit declarations, advance notifications, and reports.

This rule also adds a new § 711.8 that contains instructions for applying for authorization to submit electronic declarations and reports through the Web-Data Entry System for Industry (WebDESI). This electronic submission procedure fulfills the requirements of the Government Paperwork Elimination Act (44 U.S.C. 3504).

F. Amendments to Part 712 of the CWCR (Activities Involving Schedule 1 Chemicals)

This rule adds a new § 712.2(a) that prohibits the production of Schedule 1 chemicals for protective purposes, as defined in § 710.1 of the CWCR. This change is consistent with the provisions in Part VI of the CWC Annex on Implementation and Verification (the “Verification Annex”) that describe production activities not prohibited under the CWC. These provisions restrict production of Schedule 1 chemicals for protective purposes to a single small-scale facility approved by the State Party and one facility outside of a single small-scale facility, which also must be approved by the State Party. The only two facilities in the United States authorized to produce Schedule 1 chemicals for protective purposes are owned and operated by the U.S. Department of Defense—these facilities are not subject to the CWCR, pursuant to § 710.2(a)(1)(i). Therefore, all facilities subject to the CWCR are prohibited from producing Schedule 1 chemicals for protective purposes.

This rule also clarifies that initial declarations submitted in February 2000 remain valid until they are either amended or rescinded. If you plan to alter the technical layout of your declared facility, you must submit an amended declaration to BIS at least 200 calendar days prior to making any such change to your facility.

This rule revises § 712.3 of the CWCR by moving the annual declaration requirements for Schedule 1 facilities to new § 712.5.

This rule amends § 712.4 of the CWCR to clarify the declaration requirements that apply to the establishment of new Schedule 1 chemical production facilities. If a Schedule 1 chemical production facility has never been declared in a previous calendar year or its initial declaration has been withdrawn in accordance with the requirements of amended § 712.5(g) of this rule, you must submit an initial declaration (including a current detailed technical description of the facility) to BIS at least 200 calendar days prior to commencing production of Schedule 1 chemicals at the facility in quantities greater than 100 grams aggregate per year. Such facilities are considered to be “new Schedule 1 chemical production facilities” and are subject to an initial inspection within 200 calendar days of the submission of the initial declaration to BIS.

This rule revises the remainder of part 712 of the CWCR, as follows: (1) Advance notification and annual report requirements for Schedule 1 chemical exports and imports are moved from § 712.5 of the CWCR to § 712.6; (2) provisions for Table 1 to § 712.6 of the CWCR are moved to new Supplement No. 2 to part 712 of the CWCR; (3) procedures concerning declarations and reports returned without action by BIS are described in new § 712.8 of the CWCR; and (4) the due date for Annual Declarations for Anticipated Activities is changed from August 3 to September 3, thereby giving Schedule 1 facilities an additional 30 days in which to complete and submit their declarations.

This rule amends the CWCR provisions that require advance notification of exports and imports of Schedule 1 chemicals by establishing an exception to the requirement that BIS must be notified at least 45 calendar days prior to the export or import of a Schedule 1 chemical to or from another State Party. Advance notification of the export or import of 5 milligrams or less of Saxitoxin—B(7), which is listed in Supplement No. 1 to part 712 of the CWCR, for medical or diagnostic purposes only, must be submitted to BIS at least 3 calendar days (rather than 45 calendar days) prior to the date of export or import.

This rule amends the CWCR provisions concerning requirements for amending Schedule 1 declarations and reports. Section 712.7 of the CWCR is amended by clarifying and specifying deadlines for: (1) The types of changes to information on Schedule 1 chemicals and activities in the Annual Declaration of Past Activities that would require submission of an amended declaration to BIS; (2) the types of changes to export or import information in the Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons that would require submission of an amended report to BIS; and (3) the types of changes to Schedule 1 chemical facility information (e.g., change in company name, address, declaration point of contact, ownership) that would require submission of an amended declaration or report to BIS. In addition, this rule adds a new § 712.7(d) to the CWCR that provides guidance concerning the submission of inspection-related amendments. Amended declarations, based on the final inspection report, must be submitted to BIS within 45 calendar days of the date of BIS's post-inspection letter.

This rule adds a new § 712.8 to the CWCR that provides guidance concerning certain Schedule 1 declarations and reports that are returned without action. In these cases, BIS would return without action (RWA) any Schedule 1 declarations or reports that are determined to be not required by the CWCR. The returned declaration or report would be accompanied by a cover letter explaining why the declaration or report is being returned without action. BIS would retain a copy of the RWA letter, but would not maintain copies of any declarations or reports that were returned without action.

Finally, the provisions previously contained in § 712.6 and Table 1 to § 712.6 of the CWCR, which provided information on the deadlines for submitting Schedule 1 declarations, reports, advance notifications and amendments to BIS, are updated and moved to new § 712.9 and new Supplement No. 2 to part 712 of the CWCR, respectively.

G. Amendments to Part 713 of the CWCR (Activities Involving Schedule 2 Chemicals)

This rule adds a prohibition against exports of Schedule 2 chemicals to States not Party to the CWC in § 713.1(a). Prior to the publication of this rule, the CWCR prohibited imports of Schedule 2 chemicals from States not Party to the CWC, but did not prohibit exports of Schedule 2 chemicals to such countries. Section 742.18 of the EAR requires a license to export Schedule 2 Start Printed Page 24921chemicals to States not Party to the CWC and BIS applies a general policy of denial to license applications for such exports. A license is also required to export Schedule 2 chemicals that are controlled under the ITAR.

This rule revises § 713.1(b), which exempts certain mixtures containing Schedule 2 chemicals from the export and import prohibitions contained in § 713.1(a) of the CWCR, as amended by this rule. Prior to the publication of this rule, Section 713.1(b) of the CWCR exempted mixtures containing 10 percent or less, by weight, of any single Schedule 2 chemical. This rule revises § 713.1(b) of the CWCR to exempt the following mixtures: (i) Mixtures containing 1 percent or less, by weight, of any single Schedule 2A or 2A* chemical; (ii) mixtures containing 10 percent or less, by weight, of any single Schedule 2B chemical; and (iii) products identified as consumer goods packaged for retail sale for personal use or packaged for individual use. However, note that the consumer goods exemption for mixtures that contain Schedule 2 chemicals identified under ECCN 1C350 on the CCL (Supplement No. 1 to part 774 of the EAR) applies only to products identified as consumer goods packaged for retail sale for personal use and not to products packaged for individual use (the latter are exempt only by the CWCR and not by the Australia Group controls under the EAR).

In addition, this rule: (i) Removes the provisions concerning declarations on past production of Schedule 2 chemicals for chemical weapons purposes (previously found in § 713.2 of the CWCR); (ii) removes the provisions concerning Schedule 2 initial declarations and initial reports on exports and imports (previously found in §§ 713.3(a)(1)(i) and 713.4(c)(1) and (c)(2) of the CWCR); (iii) amends the provisions providing guidance concerning amendments to declarations and reports (previously found in § 713.7 of the CWCR); (iv) moves the provisions concerning the frequency and timing of declarations and reports (previously found in § 713.6 of the CWCR) to § 713.7; and (v) provides a description of the procedures that BIS will follow concerning declarations and reports RWA'd in § 713.6 of the CWCR.

This rule moves the Schedule 2 chemical annual declaration requirements previously described in § 713.3 of the CWCR to § 713.2 and amends this section to clarify that the scope of Schedule 2 production activities includes any associated processing steps of the Schedule 2 chemical and intermediates. Only transient intermediates are exempted. This clarification will ensure that the CWCR requirements apply to Schedule 2 chemical production where Schedule 2 chemicals are below the applicable concentration threshold when reacted, but subsequently are concentrated above the threshold during in-line processing.

The provisions previously included in § 713.6 and Table 1 to § 713.6 of the CWCR, which contained information on the deadlines for submitting declarations, reports, advance notifications, and amendments to BIS, are moved to § 713.7 and new Supplement No. 2 to part 713 of the CWCR, respectively. In addition, the CWCR provisions on amended declarations and reports for Schedule 2 chemicals are moved from § 713.7 of the CWCR to § 713.5 and amended by clarifying and specifying deadlines for: (i) The types of changes to information on Schedule 2 chemicals and activities in the Annual Declaration of Past Activities or the combined declaration and report that would require submission of an amended declaration to BIS; (ii) the types of changes to export or import information in the Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons that would require submission of an amended report to BIS; and (iii) the types of changes to Schedule 2 chemical facility information (e.g., change in company name, address, declaration point of contact, ownership) that would require submission of an amended declaration or report to BIS. This rule also moves § 713.6(d) of the CWCR to § 713.5(d) and revises it to provide guidance concerning the submission of inspection-related amendments. Amended declarations, based on the final inspection report, must be submitted to BIS within 45 calendar days of the date of BIS's post-inspection letter.

This rule amends § 713.6 of the CWCR to provide information concerning the return of certain Schedule 2 declarations and reports without action. BIS will RWA (Return Without Action) any Schedule 2 declarations or reports that are determined not to be required by the CWCR. The returned declaration or report will be accompanied by a cover letter explaining why the declaration or report is being returned without action. BIS will retain a copy of the RWA letter, but will not maintain copies of any declarations or reports that are returned without action.

Finally, the provisions previously contained in § 713.6 and Table 1 to § 713.6 of the CWCR, which provided information on the deadlines for submitting Schedule 2 declarations, reports, and amendments to BIS, are updated and moved to § 713.7 and Supplement No. 2 to part 713 of the CWCR, respectively.

H. Amendments to Part 714 of the CWCR (Activities Involving Schedule 3 Chemicals)

This rule amends § 714.1 of the CWCR by removing the provisions that addressed the past production of Schedule 3 chemicals. This section now contains the annual declaration requirements for Schedule 3 chemicals that were previously described in § 714.2 of the CWCR. This section clarifies the scope of Schedule 3 production activities, as defined by the CWCR, to include any associated processing steps of a Schedule 3 chemical and intermediates. Only transient intermediates are exempted. This ensures that the CWCR requirements apply to Schedule 3 chemical production where Schedule 3 chemicals are below the applicable concentration threshold when reacted, but subsequently are concentrated above the threshold during processing.

Section 714.1 of the CWCR is also amended to clarify the procedures that must be followed when determining the range of Schedule 3 chemical production for your plant site during the previous calendar year. Specifically, this rule includes a statement in § 714.1(c)(1) of the CWCR to indicate that you should not aggregate amounts of production from plants on your plant site that did not individually produce a Schedule 3 chemical in an amount exceeding the applicable declaration threshold (i.e., greater than 30 metric tons). In short, only the production amounts from those plants on your plant site that individually produced greater than 30 metric tons of a Schedule 3 chemical should be aggregated for the purpose of calculating the total amount of a Schedule 3 chemical produced at your plant site during the previous calendar year.

This rule also amends § 714.2 of the CWCR by removing outdated Schedule 3 initial declaration and reporting requirements and by including the annual reporting requirements for exports and imports of Schedule 3 chemicals that were previously described in Section 714.3 of the CWCR. Section 714.3 of the CWCR is amended to include the advance declaration requirements for additionally planned production of Schedule 3 chemicals that were previously described in § 714.4 of the CWCR.

In addition, this rule amends Section 714.4 of the CWCR to include the Start Printed Page 24922requirements for amending Schedule 3 declarations and reports that were previously described in § 714.6 of the CWCR. This section is also amended to clarify and specify the deadlines for: (i) The types of changes to information on Schedule 3 chemicals and activities in the Annual Declaration of Past Activities or the combined declaration and report that would require submission of an amended declaration to BIS; (ii) the types of changes to export or import information in the Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons that would require submission of an amended report to BIS; and (iii) the types of changes to Schedule 3 chemical facility information (e.g., change in company name, address, declaration point of contact, ownership) that would require submission of an amended declaration or report to BIS. In addition, this rule amends the CWCR to provide guidance in § 714.4(d) concerning the submission of inspection-related amendments. Amended declarations, based on the final inspection report, must be submitted to BIS within 45 calendar days of the date of BIS's post-inspection letter.

This rule amends § 714.5 of the CWCR to provide information concerning the return of certain Schedule 3 declarations and reports without action. BIS will RWA (Return Without Action) any Schedule 3 declarations or reports that are determined not to be required by the CWCR. The returned declaration or report will be accompanied by a cover letter explaining why the declaration or report is being returned without action. BIS will retain a copy of the RWA letter, but will not maintain copies of any declarations or reports that are returned without action.

Finally, this rule amends § 714.6 of the CWCR and adds a new Supplement No. 2 to part 714 of the CWCR to provide updated information on the deadlines for submitting Schedule 3 declarations, reports, and amendments to BIS. Information on the deadlines for submitting Schedule 3 declarations and reports was previously provided in § 714.5 and Table 1 to § 714.5 of the CWCR.

I. Amendments to Part 715 of the CWCR (Activities Involving Unscheduled Discrete Organic Chemicals (UDOCs))

This rule amends § 715.1(a)(1)(ii) (which describes the annual declaration requirements for the production of UDOCs containing the elements phosphorus, sulfur or fluorine, referred to as “PSF chemicals”) to clarify how to calculate the production by synthesis of PSF chemicals at your plant site during the previous calendar year. Specifically, this rule indicates that, when determining the quantity of each PSF chemical produced by a PSF plant on your plant site, you should only aggregate the PSF chemical production quantities from plants that individually produced a PSF chemical in an amount exceeding 30 metric tons. However, note that § 715.1(a)(1)(i) indicates that, when determining UDOC production by synthesis on your plant site, you should aggregate all quantities of UDOCs and PSF chemicals produced, regardless of the amount of PSF chemicals produced (i.e., aggregate any PSF chemicals produced).

This rule also revises § 715.1(b)(1) of the CWCR by removing the initial declaration requirement and replacing it with the annual declaration requirement and adding a new subsection that provides for a new form called the “No Changes Authorization” form. This form may be submitted to BIS if there are no updates or changes to any information (other than the certifying official and dates signed and submitted) contained in the annual declaration on past activities previously submitted by your plant site. Section § 715.1(b)(2) of the CWCR also indicates that, when you submit a “No Changes Authorization” form to BIS, your plant site's UDOC activities will continue to be declared to the OPCW and your plant site will remain subject to inspection (if applicable) based upon the data reported in your previous (i.e., most recent) annual declaration on past activities.

This rule amends § 715.2 of the CWCR to include requirements for amending UDOC declarations—these requirements were previously described in § 715.3 of the CWCR. This section is also amended by clarifying or specifying the deadlines for: (i) The types of changes to information on UDOCs and activities in the Annual Declaration of Past Activities that would require submission of an amended declaration to BIS and (ii) the types of changes to UDOC plant information (e.g., change in company name, address, declaration point of contact, ownership) that would require submission of an amended declaration to BIS. In addition, this rule amends the CWCR to provide guidance in § 715.2(c) concerning the submission of inspection-related amendments. Amended declarations, based on the final inspection report, must be submitted to BIS within 45 calendar days of the receipt of BIS's post-inspection letter.

This rule amends § 715.3 of the CWCR to provide information concerning the return of certain UDOC declarations without action. BIS will RWA any UDOC declarations that are determined not to be required by the CWCR. The returned declaration will be accompanied by a cover letter explaining why the declaration is being returned without action. BIS will retain a copy of the RWA letter, but will not maintain copies of any declarations that are returned without action.

Finally, this rule amends part 715 of the CWCR by adding a new § 715.4 and a new Supplement No. 3 to part 715 to provide updated information on the deadlines for submitting UDOC declarations and amendments to BIS. Information on the deadlines for submitting UDOC declarations was previously provided in § 715.2 and Table 1 to § 715.2 of the CWCR.

J. Amendments to Part 716 of the CWCR (Initial and Routine Inspections of Declared Facilities)

As part of their obligation under the Convention, each State Party to the CWC is subject to inspection of its chemical facilities engaged in certain activities involving scheduled chemicals. Part 716 of the CWCR provides general information about the conduct of initial and routine inspections of declared facilities subject to inspection under CWC Verification Annex Part VI (E), Part VII (B), Part VIII(B), and Part IX(B).

This rule amends § 716.2(a)(2)(i) of the CWCR to clarify that a facility agreement will be concluded by the U.S. National Authority (in coordination with BIS) with the OPCW before a new Schedule 1 facility, declared pursuant to § 712.4 of the CWCR, can produce above threshold.

This rule amends § 716.4(b)(1) of the CWCR to clarify the scope of inspections by specifying that inspections under part 716 of the CWCR may include visual inspection of parts or areas of the plant site, in addition to the facilities or plants producing scheduled chemicals, in order to address any ambiguity that might arise during the inspection. In addition, photographs may be taken and formal interviews of facility personnel may be conducted. The Host Team Leader is responsible, as described in Section 716.4(b)(2) of the CWCR, for determining whether the Inspection Team's request to inspect any area, building, item or record is reasonable—such determinations are made on the basis of treaty requirements. Verification activities under the CWCR are carried out at declared plant sites—access to other parts of a plant site will be provided in a manner sufficient to Start Printed Page 24923clarify for the Inspection Team any ambiguities that arise during an inspection and in accordance with the facility agreement.

Section 716.4(b)(3) of the CWCR is amended to indicate that: (i) Technology subject to the ITAR shall not be divulged to the Inspection Team without U.S. Government authorization and (ii) each facility that is inspected is responsible for identifying ITAR-controlled technology to the BIS Host Team, if known. The extent to which ITAR controls the transfer of technology to foreign nationals is not affected by the CWCR—all inspection-related activities conducted under the CWCR must comply with any applicable ITAR requirements.

This rule also clarifies the pre-inspection briefing requirements described in § 716.4(c) of the CWCR and the requirements in § 716.4(e) of the CWCR concerning the availability of records. The U.S. facility must provide the Inspection Team and the U.S. Government Host Team with appropriate accommodations in which to review relevant documents and must ensure that all relevant information will be available to the teams. In addition, this rule provides that, whenever the current owner of a declared facility does not have access to records for activities that took place under a previous owner of the facility, because such records were not transferred to the current owner of the facility by the previous owner (e.g., as part of the contract involving the sale of the facility), the previous owner must make such records available to the Host Team (for provision to the Inspection Team). However, the current owner of a facility, upon receiving notification of an inspection, is responsible for informing BIS if the previous owner did not transfer records for activities that took place under the previous ownership—this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities.

Section 716.7 of the CWCR, which described requirements concerning the provisions of samples by declared facilities, is revised to restrict the analysis of such samples of the verification of the absence of undeclared scheduled chemicals, unless otherwise agreed after consultation with the facility representative.

In addition, this rule adds a new § 716.10 to clarify that, upon receipt of the final inspection report from the OPCW, BIS will send a copy of the final inspection report to the facility for its review. Facilities may submit comments on the final inspection report to BIS, and BIS will consider those comments, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter with instructions based on decisions made during the inspection.

Finally, this rule removes and reserves Supplement Nos. 2 and 3 of Part 716 of the CWCR, which included the model facility agreement for Schedule 1 chemicals and Schedule 2 chemicals, respectively.

K. Amendments to Part 717 of the CWCR (CWC Clarification Procedures: Consultations and Challenge Inspections)

Article IX of the CWC contains procedures for States Parties to clarify issues concerning compliance with the CWC. A State Party may request the OPCW to conduct an on-site challenge inspection of any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party. A challenge inspection may be conducted solely for the purpose of clarifying and resolving any questions concerning possible non-compliance with the CWC.

This rule amends § 717.1(b) of the CWCR to clarify that BIS will attempt to contact a person or facility that is subject to the Article IX clarification procedures as early as practicable, prior to issuing an official written request for clarification, and that such person or facility must provide the information required by BIS, pursuant to an Article IX clarification request, within five working days of the receipt of BIS's written request for clarification.

In addition, this rule amends § 717.2 (Challenge Inspections) by adding a new provision in § 717.2(b)(2)(ii) explaining that, if consent is not granted within four hours of a facility's receipt of BIS's inspection notification, BIS will assist the Department of Justice in seeking a criminal warrant. Another new provision, i.e., § 717.2(d)(5), is added to describe the requirements concerning pre-inspection briefings for challenge inspections. Section 717.2(d)(5) requires that, prior to the commencement of the challenge inspection, facility representatives must provide the Inspection Team and Host Team with a pre-inspection briefing on the facility that will include the following: (i) The types of activities being conducted at the facility (e.g., business and manufacturing operations); (ii) safety procedures that must be followed during the inspection; and (iii) administrative and logistical arrangements necessary to facilitate the inspection.

Section 717.3 of the CWCR, which describes requirements concerning the provision of samples by declared facilities, is revised to restrict analysis of samples to verifying the presence or absence of scheduled chemicals or appropriate degradation products, unless agreed otherwise.

Finally, this rule adds a new § 717.5 to clarify that, upon receipt of the final inspection report from the OPCW, BIS will forward a copy to the facility, for comment, and will give consideration to the facility's comments prior to responding to the OPCW via the U.S. National Authority. In addition, Section 717.5 provides that, upon receipt of the final inspection report, BIS will send the facility a post-inspection letter detailing the issues that require follow-up action.

L. Amendments to Part 719 of the CWCR (Enforcement)

This rule amends part 719 of the CWCR to clarify that the scope of violations under the Chemical Weapons Convention Implementation Act (the Act) includes willfully failing or refusing to permit access to or copying of “any record” required to be established or maintained by the Act or the CWCR—not just those records exempt from disclosure under the Act or the CWCR, as previously stated in section 719.2(a)(2)(iii) of the CWCR. In addition, this rule amends the civil and criminal penalty provisions in sections 719.2(b)(2) and 719.2(c), respectively, to make the same clarification, with respect to the penalties that may be assessed for violations of the recordkeeping requirements in the Act or the CWCR.

M. Amendments to Part 721 of the CWCR (Inspection of Records and Recordkeeping)

This rule amends part 721 of the CWCR to clarify the circumstances under which the previous owner of a declared facility must retain supporting materials and documentation in accordance with the requirements of section 721.2. Specifically, section 721.2(a) is amended to clarify that, if a declared facility is sold, the previous owner of the facility must retain all supporting materials and documentation that were not transferred to the current owner of the facility (e.g., as part of the contract involving the sale of the facility); otherwise, the current owner of the facility is responsible for retaining such supporting materials and documentation. Whenever the previous owner of a declared facility retains such supporting materials and documentation, the owner must inform Start Printed Page 24924BIS of any subsequent change in address or other contact information, so that BIS will be able to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to inspection activities involving the facility.

II. Summary of Public Comments on the December 7, 2004, Proposed CWCR Rule

On December 7, 2004, BIS published a rule in the Federal Register (69 FR 70754), with a request for comments, that proposed amendments to the CWCR to update the CWCR (by adding new requirements identified since the implementation of the CWC) and clarify certain other CWC requirements. BIS received comments from five respondents. Following is a summary of those comments, along with BIS's responses. The comments are organized by regulatory section, with similar comments grouped under the same section heading.

A. Section 710.1 “Definitions of Terms Used in the Chemical Weapons Convention Regulations (CWCR)”

Comments: One respondent questioned the definition of “production by synthesis” set forth in the regulation. The respondent stated that, “Production by synthesis means production of a chemical that is isolated for use or sale.” The respondent further stated that, “'synthesis” chemically means production of a chemical from its reactants. (See Wikipedia, “Chemical Synthesis,” http://en.wikipedia.org/​wiki/​Chemical_​synthesis). It is distinguished by production of a saleable product by another means, such as processing or biological mediation.” The respondent suggested that, perhaps, BIS omitted a definition or inappropriately transposed the order of the definitions of “production” and “production by synthesis.” The respondent stated that the definition of synthesis, in any case, has a “very specific connotation under the CWC; e.g., UDOCs have to be ‘produced by synthesis’ (Verification Annex, Part IX, A.1.(b))” and that this “connotation” is not reflected in the revised regulation.

Response: The definition of “production by synthesis” has been revised in this final rule to mean “production of a chemical from its reactants.” This definition is consistent with language used in the interim CWCR, which has been applied since the CWC entered into force in the United States and has been deemed consistent with CWC requirements through application and practice. Note that Section 715.1(a)(2) of the CWCR establishes criteria for UDOCs produced by synthesis that have been isolated for use or sale as a specific end product.

B. Section 711.3 “Compliance Review”

Comments: Two respondents noted that they believe BIS already had the authority to conduct compliance reviews under the CWCR. They acknowledged the need for the compliance review element, but suggested that BIS provide companies 30 days to respond to requests for information under new Section 711.3 of the CWCR.

Response: BIS's objective has been, and will continue to be, to minimize the burden of companies to comply with the CWCR, while at the same time ensuring that individual companies and the United States comply with the terms of the CWC and the CWC Implementation Act. In response to comments received, BIS has revised the regulation to state that, if BIS makes a request pursuant to new Section 711.3 of the CWCR, BIS will provide companies 30 days to respond to such request.

Comments: One respondent stated that those companies, which have some sites that are subject to declaration requirements under the CWCR and other sites that are not, should not be required to keep records that substantiate activities at an undeclared site for purposes of compliance.

Response: Section 711.3 of the CWCR does not require companies to maintain records other than those they would normally maintain, pursuant to regular business practices or pursuant to applicable CWCR requirements.

C. Section 714.4(a) “Changes to Information That Directly Affects a Declared [Schedule 3] Plant Site's Annual Declaration of Past Activities or Combined Annual Declaration or Report Which Was Previously Submitted to BIS”

Comments: One respondent requested that BIS clarify the circumstances under which the proposed requirement in Section 714.4(a) would apply to changes in the “purpose” of Schedule 3 chemical production. Section 714.4(a) of the proposed rule stated that an amended declaration or report must be submitted to BIS within 15 days of a change in the “types” of Schedule 3 chemicals produced, the “production range” for these chemicals (as specified in the CWCR), the “purpose” of such production, and the addition of “new plants” for Schedule 3 chemical production. The respondent stated that information on the “purpose” of production appeared to be ancillary to and only needed under the remote circumstance that a plant site becomes aware of: (1) “additional plants” on the plant site producing a Schedule 3 chemical or (2) the production of an “additional chemical” at a plant already reporting under the plant site. The respondent requested that BIS provide clarification, by way of examples, of the circumstances under which changes to the “purpose” of Schedule 3 production would require submission of an amended declaration to BIS.

Response: Section 714.4(a) of the proposed rule required that an amendment be submitted to BIS within 15 days of any change in: (1) The types of Schedule 3 chemicals produced, (2) the production range of Schedule 3 chemicals (as specified in the CWCR), (3) the purpose of Schedule 3 chemical production, and (4) the addition of new plant(s) for producing Schedule 3 chemicals. To eliminate any uncertainty concerning whether or not a change in a single type of information identified in Section 714.4(a) (e.g., the “purpose” of Schedule 3 chemical production) would require submission of an amendment, BIS clarified the language in Section 714.4(a) of the proposed rule by revising the phrase, “You must submit an amended declaration or report to BIS within 15 days of any change in the following information * * *,” in the introductory text of paragraph (a), to read, “You must submit an amended declaration or report to BIS within 15 days of determining that there has been a change in any of the following information that you have previously declared or reported * * *”. BIS also clarified that section by replacing the word “and,” at the end of paragraph (a)(3), with the word “or.” These changes to Section 714.4(a) clearly indicate that a change in any one of the four types of information listed therein would require the submission of an amendment to BIS within 15 days from the date that a company determines such a change has occurred. For example, if a plant site declares consumption (“In-line consumption as produced (captive use)”) of a Schedule 3 chemical as the only “purpose” of production in its declaration on past activities, but later learns that the chemical was also sold to another company in the United States, the plant site must submit an amendment to its declaration, declaring the additional end-use (i.e., transfer to another company or industry), within 15 days of having determined that the chemical was transferred, as well as consumed.

Note:

In contrast to the amendment requirements in Section 714.4(a) of the CWCR, Section 714.3(a)(2) states that a “Declaration on Additionally Planned Activities” is not required to change Start Printed Page 24925anticipated end-use(s) of a chemical (i.e., purposes of production), unless there are other anticipated changes that must be declared, as specified in Section 714.3(a)(1)(i) through (a)(1)(iv) of the CWCR (e.g., the addition of a previously undeclared plant or chemical).

D. Sections 713.5(b)(5) and 714.4(b) “Changes to Export or Import Information Submitted in Annual Reports on Exports and Imports From Undeclared Plant Sites, Trading Companies and U.S. Persons”

Comments: Two respondents commented on the proposed end-use information requirements in Sections 713.5(b)(5) and 714.4(b)(5) of the CWCR, as they apply to changes to Schedule 2 and Schedule 3 annual reports previously submitted to BIS. One respondent noted that the CWCR do not require that information on end-use be included in an Annual Report of Exports or Imports. Both respondents asked BIS to indicate whether the end-use information requirements in Sections 713.5(b)(5) and 714.4(b)(5) of the CWCR were added to these sections in error or, if they were added intentionally, to clarify the purpose of the requirements.

Response: BIS has determined that the requirement to submit end-use information was inadvertently included in sections 714.4 and 713.5 of the CWCR and has removed the requirement from both of these sections.

E. Section 716.3(a) “Consent to Inspections; Warrants for Inspections”

Comments: One respondent stated that the regulations should provide companies with the option of giving “advance consent” to routine and challenge inspections, as set forth in sections 716 and 717 of the CWCR, respectively. The respondent stated that such advance consent would become effective upon issuance by the U.S. National Authority (USNA) of a written notification of inspection, as specified in Section 716.5(a)(2) of the CWCR. The respondent suggested that this option should allow the owner to choose whether to have the advance consent expire at the end of a specified period of time or to have no expiration date. To implement this option, the respondent suggested that BIS could include an “advance consent” provision in the annual declaration form that would allow the individual completing the form to check the appropriate boxes to indicate whether or not “advance consent” is given and, if so, whether that consent will expire at a specified time or have no expiration date. Alternatively, the respondent suggests that “advance consent” could be indicated by submission of a letter from the owner to BIS that would provide “advance consent.” The respondent stated that this mode of consent would not diminish any rights under the rule to withdraw consent at any time.

Response: Section 305(a) of the Chemical Weapons Convention Implementation Act (CWCIA) requires the United States Government to “seek the consent of the owner or the owner, operator, occupant, or agent in charge of the premises to be inspected prior to any inspection * * *” (See 22 U.S.C. 6701, 6725, Pub. L. 105-277, Section 305(a)). BIS has made a conservative interpretation of this requirement and therefore seeks actual consent from the authorized owner, operator or agent in charge, after notification, prior to every inspection. We have adopted this interpretation to ensure that the rights bestowed on the public by the CWCIA are fully addressed. Accordingly, BIS will not adopt a method for the submission of advance consent to inspections.

F. Section 716.4(b)(1) “Description of Inspections”

Comments: One respondent stated that the use of the word “may,” in the context of the areas that can be included in a visual inspection, creates uncertainty with regard to those areas of a facility that are subject to inspection and those that are not. The respondent stated that visual inspection of areas outside the declared plant site should be required only if there are no other means of clarifying an ambiguity. The respondent asserted that BIS should provide clarification in Section 716 of the CWCR, or at least in the preamble to the final rule, concerning which areas of the declared plant and plant site will be subject to visual inspection and which areas may be subject to visual inspection. The respondent also suggested that BIS should provide a more detailed explanation in Section 716 about managed access and other protections that may apply to inspections.

Response: BIS cannot provide a list of areas that will be or may be subject to visual inspection because each inspection is conducted differently within the limits of the CWC and the Act. As the representative of the United States (Inspected State Party), the Host Team Leader is responsible, as described in section 716.4(b)(2), for determining whether the Inspection Team's request to inspect any area, building, item or record is reasonable. Such determinations are made by the Host Team Leader on the basis of treaty requirements. Verification activities are carried out at declared “plant sites.” The CWC states that the focus of inspections shall be the declared plant (see CWC Part VII paragraph 25, Part VIII paragraph 20, and Part IX paragraph 17 for Schedule 2, Schedule 3 and UDOC inspections, respectively). These activities are further described in the CWCR. Access to other parts of a plant site are provided in a manner sufficient to clarify, to the satisfaction of the Inspection Team, any ambiguities that arise during an inspection. Managed access is a means through which access to other parts of a plant site is controlled, and it cannot be narrowly defined.

G. Section 716.4(b)(2) “Scope of Consent”

Comments: One respondent stated that there is no mention of the facility's role in determining whether or not an Inspection Team's request for access is reasonable. The respondent stated that input from the inspected facility is crucial to any determination made by the Host Team with regard to access and other inspection activities. The respondent, therefore, suggested that Section 716.4(b)(2) should be revised to read as follows:

“The Host Team Leader will make the determination of whether the Inspection Team's request to inspect any area, building, item or record is reasonable after consultation with the owner, operator, occupant or agent in charge of a facility.”

Response: The Host Team Leader, as the representative of the United States during an inspection, has the sole responsibility for determining whether a request made by the Inspection Team is reasonable and necessary. The inspection being conducted at the facility is a U.S. Government-led inspection and therefore any interaction with the Inspection Team or decisions made regarding the conduct of the inspection are wholly within the province and authority of the U.S. Government. As a courtesy, BIS has made it a practice to consult with the facility prior to making these decisions. However, there is no obligation on the part of the U.S. Government to follow the instruction of, or await comment from, the facility when considering an Inspection Team request. Therefore, BIS will not revise section 716.4 to reflect the respondent's requested language.

H. Section 716.4(b)(3) “ITAR Controlled Technology”

Comments: One respondent stated that, in order to maximize the protection of technology controlled for export under the International Traffic in Arms Start Printed Page 24926Regulations (ITAR) (22 CFR 120-130), the first sentence of this section should be revised to read as follows:

“ITAR-controlled technology cannot be divulged to the Inspection Team without U.S. Government (USG) authorization regardless of the nationalities of the Inspection Team members.”

Response: A key role for BIS, during CWC inspections of facilities, is to ensure that these inspections are conducted in a manner that does not adversely impact facility compliance with the requirements of the International Traffic in Arms Regulations (ITAR), which are administered by the U.S. Department of State. The terms under which members of the Inspection Team may have access to ITAR-controlled technology and information are subject to the provisions of those regulations and the instructions given to the Department of Commerce by the Department of State. The language proposed by the respondent would materially affect the implementation of those ITAR provisions and, therefore, will not be incorporated into the CWCR.

Comments: Another respondent stated that the procedures through which the U.S. Government authorizes the release of ITAR technology during CWC inspections are unclear. The respondent requested that BIS clarify the procedures (if any) for authorizing the release of such technology.

Response: The CWCR do not alter the ITAR provisions or procedures (22 CFR 120-130) as they apply to the transfer of technology to foreign nationals. Procedurally, if there is no approval from the U.S. Department of State or its duly designated U.S. Government representative for disclosure of ITAR technology during an inspection, such technology cannot be disclosed.

I. Section 716.4(e) “Records Review”

Comments: Two respondents commented on the requirement in Section 716.4(e) of the CWCR that, whenever the current owner of a declared facility does not have access to records for activities that took place under a previous owner of the facility, the previous owner must make such records available to the Host Team, for provision to the Inspection Team. One of the respondents said that, if contractually, records were transferred to the new owners of a facility subject to the CWCR, the previous owners should not be obligated to maintain duplicates of those records. Both respondents stated that this section of the CWCR appeared to impose an indefinite recordkeeping obligation upon former owners of declared facilities who were no longer subject to the CWCR and suggested that BIS should amend this section of the CWCR to clarify that, under any circumstances where the previous owner is obligated to maintain records, the five-year retention period described in Section 721.2(b) of the CWCR would apply.

Response: Section 716.4(e) of the CWCR does not obligate the previous owner of a declared facility to maintain duplicates of records that were contractually transferred to the new owner of the facility. The company that legally owns the records after the sale is responsible for retaining the records and making them available for inspection. Accordingly, there is no duplication of recordkeeping. Section 721.2(b) establishes a five year retention period for all supporting materials and documentation related to compliance with the CWCR, so there are no open-ended record keeping obligations under the CWCR. However, in order to clarify the recordkeeping requirements that apply to previous owners of declared facilities, BIS is amending Section 716.4(e) to expressly indicate that, “if a facility does not have access to records for activities that took place under previous ownership, because such records were not transferred to the current owner of the facility by the previous owner (e.g., as part of the contract involving the sale of the facility), the previous owner must make such records available to the Host Team for provision to the Inspection Team * * *.” The current owner of a facility, upon receiving notification of an inspection, would be responsible for informing BIS if the previous owner did not transfer records for activities that took place under the previous ownership—this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities. BIS is also amending Section 721.2(a) of the CWCR, consistent with the clarifications to Section 716.4, to specify that “in the event that a declared facility is sold, the previous owner of the facility must retain all * * * supporting materials and documentation that were not transferred to the current owner of the facility (e.g., as part of the contract involving the sale of the facility)—otherwise, the current owner of the facility is responsible for retaining such supporting materials and documentation.” In addition, if the previous owner of a declared facility decides to retain such supporting materials and documentation, the owner must inform BIS of any subsequent change in address or other contact information, so that BIS will be able to contact the previous owner, to arrange for access to the records, in the event that BIS deems them relevant to inspection activities involving the facility.

J. Section 716.10 “Post-Inspection Activities”

Comments: Two respondents stated that the CWCR do not provide a time frame for the submission of a facility's comments on a final inspection report from the OPCW. The respondents suggested that BIS establish a time frame that coincides with the deadline for the submission of inspection-related amendments (45 calendar days).

Response: The respondents were correct in noting that the CWCR do not establish a specific deadline for an inspected facility to submit comments on a final inspection report. The CWC requires that State Parties submit comments on a final inspection report, to the Director-General of the Technical Secretariat of the OPCW, not later than 30 days following the completion of an inspection. As a courtesy, BIS has provided companies with the opportunity to review and comment on the inspection report, but is under no obligation to await or incorporate such comments in the final submission to the OPCW. However, BIS notes the utility of a deadline for the submission of comments by facilities on the final inspection report. Therefore, BIS has amended the CWCR to allow inspected facilities a minimum of 7 working days, from the time they receive a copy of the final inspection report, to submit their comments on the report.

K. Part 717 “Challenge inspections”

Comments: The same respondent, who commented on adding a provision that would allow companies to supply advance consent for routine inspections (see comments on Section 716.3(a), above), suggested that BIS should also provide for advance consent to challenge inspections.

Response: For the reasons stated in its response to the respondent's comments on Section 716.3(a) of the CWCR, BIS will not amend the CWCR to provide for the submission of advance consent to challenge inspections. (For further discussion of the basis for this decision, see the BIS response to the comments received for Section 716.3(a), above.) Start Printed Page 24927

L. Section 717.2(a) and (b) “Warrants” and “Notification of Challenge Inspection”

Comments: One respondent stated that the challenge inspection procedures in Part 717 of the proposed CWCR do not contain provisions analogous to the initial/routine inspection procedures in either Section 716.3(a), which states that the owner, operator, or agent in charge of a facility may consent to an inspection, or Section 716.5(a)(1)(ii), which provides that BIS's inspection notification will include a request that the facility indicate whether it will consent to an inspection. The respondent noted that, while obtaining the consent of the owner, operator, or agent in charge of a facility to an inspection is not expressly stated in Part 717, it is implied because Section 717.2(a) of the proposed rule indicates that failure to provide consent will result in the issuance of a criminal warrant. The respondent felt that part 717 of the proposed rule creates ambiguity and uncertainty, because it does not expressly indicate whether or how BIS would request a facility's consent to an inspection, and suggested that the following sentences be added to Sections 717.2(a) and 717.2(b)(2)(ii):

Section 717.2(a)—“The owner, operator, occupant or agent in charge of a facility may consent to a challenge inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility.”

Section 717.2(b)(2)(ii)—“In addition to appropriate information provided by the OPCW in its notification to the USNA, BIS's inspection notification to the facility will request that the facility indicate whether it will consent to an inspection and will state whether an advance team is available to assist the site in preparation for the inspection.”

Response: BIS has amended Sections 717.2(a) and 717.2(b)(2)(ii) of the CWCR to expressly indicate that BIS will request the owner, operator, or agent in charge of a facility to provide consent prior to a challenge inspection of the facility.

M. Typographical Errors

Comment: One respondent indicated that there were two typographical errors in the Supplementary Information part of the CWCR proposed rule, under Part I (“Summary of CWCR Changes Contained in This Proposed Rule”), section (G), titled “Proposed Amendments to Part 713 of the CWCR (Activities Involving Schedule 2 Chemicals).” The respondent stated that BIS should add an “s” to the word “prohibit,” in the second sentence of the first paragraph under section (G), and delete the word “not” from the phrase “not packaged for retail sale for personal use,” in the last sentence of the second paragraph under section (G).

Response: The word “prohibit,” in the second sentence of the first paragraph in section (G), is intended to modify “Chemical Weapons Convention Regulations.” Because the word “regulations” is plural, the use of the word “prohibit” is appropriate in this sentence. BIS has amended the last sentence of the second paragraph in section (G) by removing the word “not” from the phrase “not packaged for retail sale for personal use.”

Rulemaking Requirements

1. This final rule has been determined to be significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule revises an existing collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0091 (Chemical Weapons Convention—Declaration and Report Forms), which carries burden hour estimates of 10.6 hours for Schedule 1 Chemicals, 11.9 hours for Schedule 2 chemicals, 2.5 hours for Schedule 3 chemicals, 5.3/5.1 for unscheduled discrete organic chemicals, and 0.17 hours for Schedule 1 notifications. This rule adds a new Section 711.3 to the Chemical Weapons Convention Regulations (CWCR) that authorizes BIS to contact any facility to request information concerning production, processing, consumption, export, import, or other activities involving scheduled chemicals and UDOCs, described in Parts 712 through 715 of the CWCR, in order to determine whether or not the facility is in compliance with the CWCR. This new requirement applies to all persons and facilities that are subject to the reporting or declaration provisions of the CWCR, as set forth in Part 721. The total estimated annual burden hours for the compliance reviews authorized under new Section 711.3 would be 85 hours and the total estimated annual cost would be $3,236.46. This rule also adds a new requirement for the submission of amendments (to previously submitted declarations and reports) resulting from inspection findings. The total estimated annual burden hours for this new amendment requirement would be 112 hours and the total estimated annual cost would be $4,267. Note that the estimated burden hours and cost for inspection related amendments are already included in the information collection authorization from OMB. Therefore, to avoid double counting the information, it does not appear as a separate line item under the revision to the information collection for this final rule. Finally, this rule adds a new reporting form, entitled “No Changes Authorization Form,” for UDOC facilities to use, if appropriate, for certifying that there are no changes to the information declared in a UDOC facility's prior year's annual declaration on past activities. This new form will reduce industry's estimated annual burden by 15 hours and $571.50. Note that, like the information related to inspection-related amendments, the estimated burden hours and cost for implementing the “No Changes Authorization Form” are included in a prior information collection authorization from OMB. In conclusion, the total estimated annual burden hours for declarations, reports, amendments, and requests for compliance-related information under this final rule will increase from 4401 burden hours to 4471 burden hours.

The changes made by this rule are addressed under two separate information collection submissions.

Comments are invited on: (i) Whether the collection of information is necessary for the functions of the agency, including whether the information shall have practical utility; (ii) the accuracy of the agency's estimate of the information collection burden; (iii) ways to enhance the quality, utility, and clarity of the information to be collected; and (iv) ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology.

Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to David_Rostker@omb.eop.gov, or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132. Start Printed Page 24928

4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant economic impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis. Pursuant to section 605(b), the Chief Counsel for Regulations, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration, that the promulgation of this final rule will not have a significant economic impact on a substantial number of small entities for the reasons explained below. Consequently, BIS has not prepared a regulatory flexibility analysis.

Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business according to RFA default definitions for small business (based on SBA size standards), (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000, and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. BIS has determined that this final rule would affect only the first category of small entities (i.e., small businesses). The President reported to the Congress, in December 2003, as required under section 309 of the CWC Implementation Act, that 297 U.S. companies representing 691 facilities, plant sites, and trading companies were subject to the declaration and reporting requirements under the Chemical Weapons Convention Regulations (CWCR). Although BIS estimates that the majority of these 297 companies are substantially sized businesses, having more than 500 employees, BIS does not have sufficient information on these companies to definitively characterize them as large entities. The Small Business Administration (SBA) has established standards for what constitutes a small business, with respect to each of the Standard Industrial Classification (SIC) code categories for “Chemicals and Allied Products.” However, BIS is not able to determine which of these SIC code categories apply to the companies that are subject to the declaration, reporting, advance notification, recordkeeping or inspection requirements of this rule. Therefore, for the purpose of assessing the impact of this final rule, BIS assumes that the 297 companies are small entities.

Although this final rule will affect a substantial number of small entities (i.e., 297 companies), the additional recordkeeping and reporting requirements imposed by this rule will not have a significant economic impact on these entities.

First, this rule adds a new section 711.3 that authorizes BIS to contact any facility to determine whether or not it is in compliance with the CWCR. The information that BIS is authorized to request concerns production, processing, consumption, export, import, or other activities involving scheduled chemicals and UDOCs described in parts 712 through 715 of the CWCR. This new requirement applies to all persons and facilities subject to the reporting or declaration provisions of the CWCR, as set forth in part 721. The total estimated annual burden hours for the compliance reviews authorized under new section 711.3 would be 85 hours and the total estimated annual cost would be $3,236.46.

Second, this rule adds a new requirement for the submission of amendments (to previously submitted declarations and reports) resulting from inspection findings. The total estimated annual burden hours for the new amendment requirement would be 112 hours and the total estimated annual cost would be $4,267.

Finally, this rule adds a new reporting form, entitled “No Changes Authorization Form,” for UDOC facilities to use, if appropriate, for certifying that there are no changes to the information declared in a UDOC facility's prior year's annual declaration on past activities. This new form will reduce industry's estimated annual burden by 15 hours and $571.50.

The total estimated increase in annual burden hours to implement the additional recordkeeping and reporting requirements described above would be 197 burden hours and the total estimated annual cost would be $7,503.46. The total cost of these recordkeeping and reporting requirements would represent only a small percentage of the revenues generated by the affected companies. Although this final rule will affect a substantial number of small entities (i.e., 297 companies), the total economic impact on the affected entities (i.e., $7,503.46) will not be significant. Since the revisions that this rule makes to the CWCR will not impose a significant economic impact on a substantial number of small entities, BIS did not prepare a regulatory flexibility analysis for this rule.

Finally, the changes made by this rule should be viewed in light of the fact that BIS's discretion in formulating the declaration, reporting and advance notification, and recordkeeping requirements of the CWCR is limited by the Chemical Weapons Convention (the Convention). The Organization for the Prohibition of Chemical Weapons (OPCW) has issued forms for States Parties to use for declarations. In drafting the CWCR requirements and the forms for U.S. persons to use, BIS has consistently interpreted the Convention's requirements as narrowly as possible to ensure that only information that the United States National Authority must declare to the OPCW is to be submitted to BIS. Other States Parties, such as Canada, have imposed much broader reporting requirements on their industries, with the government taking on the responsibility of determining which of the information collected must be declared to the OPCW. In addition, certain declaration requirements of the Convention are subject to interpretation by States Parties. Until the Conference of States Parties establishes clear rules for these requirements, States Parties may use their “national discretion” to implement them. “National discretion” generally means a reasonable interpretation of the requirement. For requirements currently subject to “national discretion,” BIS has adopted in this rule the minimum requirements consistent with a reasonable reading of the Convention, keeping in mind its purposes and objectives.

Start List of Subjects

List of Subjects

End List of Subjects Start Amendment Part

Accordingly, the Chemical Weapons Convention Regulations, 15 CFR, chapter VII, subchapter B, parts 710 through 722, are revised to read as follows:

End Amendment Part Start Part

PART 710—GENERAL INFORMATION AND OVERVIEW OF THE CHEMICAL WEAPONS CONVENTION REGULATIONS (CWCR)

710.1
Definitions of terms used in the Chemical Weapons Convention Regulations (CWCR).
710.2
Scope of the CWCR.
710.3
Purposes of the Convention and CWCR.
710.4
Overview of scheduled chemicals and examples of affected industries.
710.5
Authority.
710.6
Relationship between the Chemical Weapons Convention Regulations and the Export Administration Regulations, the International Traffic in Arms Regulations, and the Alcohol, Tobacco, Firearms, and Explosives Regulations.

Supplement No. 1 to Part 710—States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction

Supplement No. 2 to Part 710—Definitions of Production

Start Authority

Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Definitions of terms used in the Chemical Weapons Convention Regulations (CWCR).

The following are definitions of terms used in the CWCR (parts 710 through 729 of this subchapter, unless otherwise noted):

Act (The). Means the Chemical Weapons Convention Implementation Act of 1998 (22 U.S.C. 6701 et seq.).

Advance Notification. Means a notice informing BIS of a company's intention to export to or import from a State Party a Schedule 1 chemical. This advance notification must be submitted to BIS at least 45 days prior to the date of export or import (except for transfers of 5 milligrams or less of saxitoxin for medical/diagnostic purposes, which must be submitted to BIS at least 3 days prior to export or import). BIS will inform the company in writing of the earliest date the shipment may occur under the advance notification procedure. This advance notification requirement is imposed in addition to any export license requirements under the Department of Commerce's Export Administration Regulations (15 CFR parts 730 through 799) or the Department of State's International Traffic in Arms Regulations (22 CFR parts 120 through 130) or any import license requirements under the Department of Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives Regulations (27 CFR part 447).

Bureau of Industry and Security (BIS). Means the Bureau of Industry and Security of the United States Department of Commerce, including Export Administration and Export Enforcement.

By-product. Means any chemical substance or mixture produced without a separate commercial intent during the manufacture, processing, use or disposal of another chemical substance or mixture.

Chemical Weapon. Means the following, together or separately:

(1) Toxic chemicals and their precursors, except where intended for purposes not prohibited under the Chemical Weapons Convention (CWC), provided that the type and quantity are consistent with such purposes;

(2) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in paragraph (1) of this definition, which would be released as a result of the employment of such munitions and devices;

(3) Any equipment specifically designed for use directly in connection with the employment of munitions or devices specified in paragraph (2) of this definition.

Chemical Weapons Convention (CWC or Convention). Means the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, and its annexes opened for signature on January 13, 1993.

Chemical Weapons Convention Regulations (CWCR). Means the regulations contained in 15 CFR parts 710 through 729.

Consumption. Consumption of a chemical means its conversion into another chemical via a chemical reaction. Unreacted material must be accounted for as either waste or as recycled starting material.

Declaration or report form. Means a multi-purpose form to be submitted to BIS regarding activities involving Schedule 1, Schedule 2, Schedule 3, or unscheduled discrete organic chemicals. Declaration forms will be used by facilities that have data declaration obligations under the CWCR and are “declared” facilities whose facility-specific information will be transmitted to the OPCW. Report forms will be used by entities that are “undeclared” facilities or trading companies that have limited reporting requirements for only export and import activities under the CWCR and whose facility-specific information will not be transmitted to the OPCW. Information from declared facilities, undeclared facilities and trading companies will also be used to compile U.S. national aggregate figures on the production, processing, consumption, export and import of specific chemicals. See also related definitions of declared facility, undeclared facility and report.

Declared facility or plant site. Means a facility or plant site that submits declarations of activities involving Schedule 1, Schedule 2, Schedule 3, or unscheduled discrete organic chemicals above specified threshold quantities.

Discrete organic chemical. Means any chemical belonging to the class of chemical compounds consisting of all compounds of carbon, except for its Start Printed Page 24930oxides, sulfides, and metal carbonates, identifiable by chemical name, by structural formula, if known, and by Chemical Abstract Service registry number, if assigned. (Also see the definition for unscheduled discrete organic chemical.)

Domestic transfer. Means, with regard to declaration requirements for Schedule 1 chemicals under the CWCR, any movement of any amount of a Schedule 1 chemical outside the geographical boundary of a facility in the United States to another destination in the United States, for any purpose. Also means, with regard to declaration requirements for Schedule 2 and Schedule 3 chemicals under the CWCR, movement of a Schedule 2 or Schedule 3 chemical in quantities and concentrations greater than specified thresholds, outside the geographical boundary of a facility in the United States, to another destination in the United States, for any purpose. Domestic transfer includes movement between two divisions of one company or a sale from one company to another. Note that any movement to or from a facility outside the United States is considered an export or import for reporting purposes, not a domestic transfer. (Also see definition of United States.)

EAR. Means the Export Administration Regulations (15 CFR parts 730-799).

Explosive. Means a chemical (or a mixture of chemicals) that is included in Class 1 of the United Nations Organization hazard classification system.

Facility. Means any plant site, plant or unit.

Facility Agreement. Means a written agreement or arrangement between a State Party and the Organization relating to a specific facility subject to on-site verification pursuant to Articles IV, V, and VI of the Convention.

Host Team. Means the U.S. Government team that accompanies the inspection team from the Organization for the Prohibition of Chemical Weapons during a CWC inspection for which the regulations in the CWCR apply.

Host Team Leader. Means the representative from the Department of Commerce who heads the U.S. Government team that accompanies the Inspection Team during a CWC inspection for which the regulations in the CWCR apply.

Hydrocarbon. Means any organic compound that contains only carbon and hydrogen.

Impurity. Means a chemical substance unintentionally present with another chemical substance or mixture.

Inspection Notification. Means a written announcement to a plant site by the United States National Authority (USNA) or the BIS Host Team of an impending inspection under the Convention.

Inspection Site. Means any facility or area at which an inspection is carried out and which is specifically defined in the respective facility agreement or inspection request or mandate or inspection request as expanded by the alternative or final perimeter.

Inspection Team. Means the group of inspectors and inspection assistants assigned by the Director-General of the Technical Secretariat to conduct a particular inspection.

Intermediate. Means a chemical formed through chemical reaction that is subsequently reacted to form another chemical.

ITAR. Means the International Traffic in Arms Regulations (22 CFR parts 120-130).

Organization for the Prohibition of Chemical Weapons (OPCW). Means the international organization, located in The Hague, the Netherlands, that administers the CWC.

Person. Means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any agency, instrumentality or political subdivision of any such government or nation, or other entity located in the United States.

Plant. Means a relatively self-contained area, structure or building containing one or more units with auxiliary and associated infrastructure, such as:

(1) Small administrative area;

(2) Storage/handling areas for feedstock and products;

(3) Effluent/waste handling/treatment area;

(4) Control/analytical laboratory;

(5) First aid service/related medical section; and

(6) Records associated with the movement into, around, and from the site, of declared chemicals and their feedstock or product chemicals formed from them, as appropriate.

Plant site. Means the local integration of one or more plants, with any intermediate administrative levels, which are under one operational control, and includes common infrastructure, such as:

(1) Administration and other offices;

(2) Repair and maintenance shops;

(3) Medical center;

(4) Utilities;

(5) Central analytical laboratory;

(6) Research and development laboratories;

(7) Central effluent and waste treatment area; and

(8) Warehouse storage.

Precursor. Means any chemical reactant which takes part, at any stage in the production, by whatever method, of a toxic chemical. The term includes any key component of a binary or multicomponent chemical system.

Processing. Means a physical process such as formulation, extraction and purification in which a chemical is not converted into another chemical.

Production. Means the formation of a chemical through chemical reaction, including biochemical or biologically mediated reaction (see Supplement No. 2 to this part).

(1) Production of Schedule 1 chemicals means formation through chemical synthesis as well as processing to extract and isolate Schedule 1 chemicals.

(2) Production of a Schedule 2 or Schedule 3 chemical means all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.

Production by synthesis. Means production of a chemical from its reactants.

Protective purposes in relation to Schedule 1 chemicals. Means any purpose directly related to protection against toxic chemicals and to protection against chemical weapons. Further means the Schedule 1 chemical is used for determining the adequacy of defense equipment and measures.

Purposes not prohibited by the CWC. Means the following:

(1) Any peaceful purpose related to an industrial, agricultural, research, medical or pharmaceutical activity or other activity;

(2) Any purpose directly related to protection against toxic chemicals and to protection against chemical weapons;

(3) Any military purpose of the United States that is not connected with the use of a chemical weapon and that is not dependent on the use of the toxic or poisonous properties of the chemical weapon to cause death or other harm; or

(4) Any law enforcement purpose, including any domestic riot control Start Printed Page 24931purpose and including imposition of capital punishment.

Report. Means information due to BIS on exports and imports of Schedule 1, Schedule 2 or Schedule 3 chemicals above applicable thresholds. Such information is included in the national aggregate declaration transmitted to the OPCW. Facility-specific information is not included in the national aggregate declaration. Note: This definition does not apply to parts 719 and 720 of the CWCR (see the definition of “report” in § 719.1(b) of the CWCR).

Schedules of Chemicals. Means specific lists of toxic chemicals, groups of chemicals, and precursors contained in the CWC. See Supplements No. 1 to parts 712 through 714 of the CWCR.

State Party. Means a country for which the CWC is in force. See Supplement No. 1 to this part.

Storage. For purposes of Schedule 1 chemical reporting, means any quantity that is not accounted for under the categories of production, export, import, consumption or domestic transfer.

Technical Secretariat. Means the organ of the OPCW charged with carrying out administrative and technical support functions for the OPCW, including carrying out the verification measures delineated in the CWC.

Toxic Chemical. Means any chemical which, through its chemical action on life processes, can cause death, temporary incapacitation, or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions, or elsewhere. Toxic chemicals that have been identified for the application of verification measures are in schedules contained in Supplements No. 1 to parts 712 through 714 of the CWCR.

Trading company. Means any person involved in the export and/or import of scheduled chemicals in amounts greater than specified thresholds, but not in the production, processing or consumption of such chemicals in amounts greater than threshold amounts requiring declaration. If such persons exclusively export or import scheduled chemicals in amounts greater than specified thresholds, they are subject to reporting requirements but are not subject to routine inspections. Such persons must be the principal party in interest of the exports or imports and may not delegate CWC reporting responsibilities to a forwarding or other agent.

Transfer. See domestic transfer.

Transient intermediate. Means any chemical which is produced in a chemical process but, because it is in a transition state in terms of thermodynamics and kinetics, exists only for a very short period of time, and cannot be isolated, even by modifying or dismantling the plant, or altering process operating conditions, or by stopping the process altogether.

Undeclared facility or plant site. Means a facility or plant site that is not subject to declaration requirements because of past or anticipated production, processing or consumption involving scheduled or unscheduled discrete organic chemicals above specified threshold quantities. However, such facilities and plant sites may have a reporting requirement for exports or imports of such chemicals.

Unit. Means the combination of those items of equipment, including vessels and vessel set up, necessary for the production, processing or consumption of a chemical.

United States. Means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States, and includes all places under the jurisdiction or control of the United States, including any of the places within the provisions of paragraph (41) of section 40102 of Title 49 of the United States Code, any civil aircraft of the United States or public aircraft, as such terms are defined in paragraphs (1) and (37), respectively, of section 40102 of Title 49 of the United States Code, and any vessel of the United States, as such term is defined in section 3(b) of the Maritime Drug Enforcement Act, as amended (section 1903(b) of Title 46 App. of the United States Code).

United States National Authority (USNA). Means the Department of State serving as the national focal point for the effective liaison with the Organization for the Prohibition of Chemical Weapons and other States Parties to the Convention and implementing the provisions of the Chemical Weapons Convention Implementation Act of 1998 in coordination with an interagency group designated by the President consisting of the Secretary of Commerce, Secretary of Defense, Secretary of Energy, the Attorney General, and the heads of other agencies considered necessary or advisable by the President, or their designees. The Secretary of State is the Director of the USNA.

Unscheduled chemical. Means a chemical that is not contained in Schedule 1, Schedule 2, or Schedule 3 (see Supplements No. 1 to parts 712 through 714 of the CWCR).

Unscheduled Discrete Organic Chemical (UDOC). Means any “discrete organic chemical” that is not contained in the Schedules of Chemicals (see Supplements No. 1 to parts 712 through 714 of the CWCR) and subject to the declaration requirements of part 715 of the CWCR. Unscheduled discrete organic chemicals subject to declaration under the CWCR are those produced by synthesis that are isolated for use or sale as a specific end-product.

You. The term “you” or “your” means any person (see also definition of “person”). With regard to the declaration and reporting requirements of the CWCR, “you” refers to persons that have an obligation to report certain activities under the provisions of the CWCR.

Scope of the CWCR.

The Chemical Weapons Convention Regulations (parts 710 through 729 of this subchapter), or CWCR, implement certain obligations of the United States under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, known as the CWC or Convention.

(a) Persons and facilities subject to the CWCR. (1) The CWCR apply to all persons and facilities located in the United States, except the following U.S. Government facilities:

(i) Department of Defense facilities;

(ii) Department of Energy facilities; and

(iii) Facilities of other U.S. Government agencies that notify the USNA of their decision to be excluded from the CWCR.

(2) For purposes of the CWCR, “United States Government facilities” are those facilities owned and operated by a U.S. Government agency (including those operated by contractors to the agency), and those facilities leased to and operated by a U.S. Government agency (including those operated by contractors to the agency). “United States Government facilities” do not include facilities owned by a U.S. Government agency and leased to a private company or other entity such that the private company or entity may independently decide for what purposes to use the facilities.

(b) Activities subject to the CWCR. The activities subject to the CWCR (parts 710 through 729 of this subchapter) are activities, including production, processing, consumption, exports and imports, involving chemicals further described in parts 712 through 715 of the CWCR. These do not include activities involving inorganic Start Printed Page 24932chemicals other than those listed in the Schedules of Chemicals, or other specifically exempted unscheduled discrete organic chemicals.

Purposes of the Convention and CWCR.

(a) Purposes of the Convention. (1) The Convention imposes upon the United States, as a State Party, certain declaration, inspection, and other obligations. In addition, the United States and other States Parties to the Convention undertake never under any circumstances to:

(i) Develop, produce, otherwise acquire, stockpile, or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(ii) Use chemical weapons;

(iii) Engage in any military preparations to use chemical weapons; or

(iv) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited by the Convention.

(2) One objective of the Convention is to assure States Parties that lawful activities of chemical producers and users are not converted to unlawful activities related to chemical weapons. To achieve this objective and to give States Parties a mechanism to verify compliance, the Convention requires the United States and all other States Parties to submit declarations concerning chemical production, consumption, processing and other activities, and to permit international inspections within their borders.

(b) Purposes of the Chemical Weapons Convention Regulations. To fulfill the United States' obligations under the Convention, the CWCR (parts 710 through 729 of this subchapter) prohibit certain activities, and compel the submission of information from all facilities in the United States, except for Department of Defense and Department of Energy facilities and facilities of other U.S. Government agencies that notify the USNA of their decision to be excluded from the CWCR on activities, including exports and imports of scheduled chemicals and certain information regarding unscheduled discrete organic chemicals as described in parts 712 through 715 of the CWCR. U.S. Government facilities are those owned by or leased to the U.S. Government, including facilities that are contractor-operated. The CWCR also require access for on-site inspections and monitoring by the OPCW, as described in parts 716 and 717 of the CWCR.

Overview of scheduled chemicals and examples of affected industries.

The following provides examples of the types of industries that may be affected by the CWCR (parts 710 through 729 of this subchapter). These examples are not exhaustive, and you should refer to parts 712 through 715 of the CWCR to determine your obligations.

(a) Schedule 1 chemicals are listed in Supplement No. 1 to part 712 of the CWCR. Schedule 1 chemicals have little or no use in industrial and agricultural industries, but may have limited use for research, pharmaceutical, medical, public health, or protective purposes.

(b) Schedule 2 chemicals are listed in Supplement No. 1 to part 713 of the CWCR. Although Schedule 2 chemicals may be useful in the production of chemical weapons, they also have legitimate uses in areas such as:

(1) Flame retardant additives and research;

(2) Dye and photographic industries (e.g., printing ink, ball point pen fluids, copy mediums, paints, etc.);

(3) Medical and pharmaceutical preparation (e.g., anticholinergics, arsenicals, tranquilizer preparations);

(4) Metal plating preparations;

(5) Epoxy resins; and

(6) Insecticides, herbicides, fungicides, defoliants, and rodenticides.

(c) Schedule 3 chemicals are listed in Supplement No. 1 to part 714 of the CWCR. Although Schedule 3 chemicals may be useful in the production of chemical weapons, they also have legitimate uses in areas such as:

(1) The production of:

(i) Resins;

(ii) Plastics;

(iii) Pharmaceuticals;

(iv) Pesticides;

(v) Batteries;

(vi) Cyanic acid;

(vii) Toiletries, including perfumes and scents;

(viii) Organic phosphate esters (e.g., hydraulic fluids, flame retardants, surfactants, and sequestering agents); and

(2) Leather tannery and finishing supplies.

(d) Unscheduled discrete organic chemicals are used in a wide variety of commercial industries, and include acetone, benzoyl peroxide and propylene glycol.

Authority.

The CWCR (parts 710 through 729 of this subchapter) implement certain provisions of the Chemical Weapons Convention under the authority of the Chemical Weapons Convention Implementation Act of 1998 (Act), the National Emergencies Act, the International Emergency Economic Powers Act (IEEPA), as amended, and the Export Administration Act of 1979, as amended, by extending verification and trade restriction requirements under Article VI and related parts of the Verification Annex of the Convention to U.S. persons. In Executive Order 13128 of June 25, 1999, the President delegated authority to the Department of Commerce to promulgate regulations to implement the Act, and consistent with the Act, to carry out appropriate functions not otherwise assigned in the Act but necessary to implement certain reporting, monitoring and inspection requirements of the Convention and the Act.

Relationship between the Chemical Weapons Convention Regulations and the Export Administration Regulations, the International Traffic in Arms Regulations, and the Alcohol, Tobacco, Firearms and Explosives Regulations.

Certain obligations of the U.S. Government under the CWC pertain to exports and imports. The obligations on exports are implemented in the Export Administration Regulations (EAR) (15 CFR parts 730 through 799) and the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130). See in particular §§ 742.2 and 742.18 and part 745 of the EAR, and Export Control Classification Numbers 1C350, 1C351, 1C355 and 1C395 of the Commerce Control List (Supplement No. 1 to part 774 of the EAR). The obligations on imports are implemented in the Chemical Weapons Convention Regulations (§§ 712.2 and 713.1) and the Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 447.

Supplement No. 1 to Part 710—States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction

List of States Parties as of March 25, 2006

Afghanistan

Albania

Algeria

Andorra

Antigua and Barbuda

Argentina

Armenia

Australia

Austria

Azerbaijan

Bahrain

Bangladesh

Belarus

Belgium

Belize

Benin

Bhutan Start Printed Page 24933

Bolivia

Bosnia-Herzegovina

Botswana

Brazil

Brunei Darussalam*

Bulgaria

Burkina Faso

Burundi

Cambodia

Cameroon

Canada

Cape Verde

Chad

Chile

China***

Colombia

Congo (Democratic Republic of the)

Cook Islands**

Costa Rica

Cote d'Ivoire (Ivory Coast)

Croatia

Cuba

Cyprus

Czech Republic

Denmark

Djibouti

Dominica

Ecuador

El Salvador

Equatorial Guinea

Eritrea

Estonia

Ethiopia

Fiji

Finland

France

Gabon

Gambia

Georgia

Germany

Ghana

Greece

Grenada

Guatemala

Guinea

Guyana

Haiti

Holy See*

Honduras

Hungary

Iceland

India

Indonesia

Iran (Islamic Republic of)

Ireland

Italy

Jamaica

Japan

Jordan

Kazakhstan

Kenya

Kiribati

Korea (Republic of)

Kuwait

Kyrgyzstan

Laos (P.D.R.)*

Latvia

Lesotho

Liberia

Libya

Liechtenstein

Lithuania

Luxembourg

Macedonia (The Former Yugoslav Republic of)

Madagascar

Malawi

Malaysia

Maldives

Mali

Malta

Marshall Islands

Mauritania

Mauritius

Mexico

Micronesia (Federated States of)

Moldova (Republic of)*

Monaco

Mongolia

Morocco

Mozambique

Namibia

Nauru

Nepal

Netherlands***

New Zealand

Nicaragua

Niger

Nigeria

Niue**

Norway

Oman

Pakistan

Palau

Panama

Papua New Guinea

Paraguay

Peru

Philippines

Poland

Portugal

Qatar

Romania

Russian Federation

Rwanda

Saint Kitts and Nevis

Saint Lucia

Saint Vincent and the Grenadines

Samoa

San Marino

Sao Tome and Principe

Saudi Arabia

Senegal

Serbia and Montenegro

Seychelles

Sierra Leone

Singapore

Slovak Republic*

Slovenia

Solomon Islands

South Africa

Spain

Sri Lanka

Sudan

Suriname

Swaziland

Sweden

Switzerland

Tajikistan

Tanzania, United Republic of

Thailand

Timor Leste (East Timor)

Togo

Tonga

Trinidad and Tobago

Tunisia

Turkey

Turkmenistan

Tuvalu

Uganda

Ukraine

United Arab Emirates

United Kingdom

United States

Uruguay

Uzbekistan

Vanuatu

Venezuela

Vietnam

Yemen

Zambia

Zimbabwe

* For export control purposes, these destinations are identified using a different nomenclature under the Commerce Country Chart in Supplement No. 1 to part 738 of the Export Administration Regulations (EAR) (15 CFR parts 730-799).

** For export control purposes, Cook Islands and Niue are not identified on the Commerce Country Chart in Supplement No. 1 to part 738 of the EAR and are treated the same as New Zealand, in accordance with § 738.3(b) of the EAR.

*** For CWC States Parties purposes, a territory, possession, or department of any country that is listed in this Supplement as a State Party to the CWC, is treated the same as the country of which it is a territory, possession, or department (e.g., China includes Hong Kong and Macau; the Netherlands includes Aruba and the Netherlands Antilles).

Supplement No. 2 to Part 710.—Definitions of Production

Schedule 1 chemicalsSchedule 2 and Schedule 3 chemicalsUnscheduled discrete organic chemicals (UDOCs)
Produced by a biochemical or biologically mediated reactionProduced by synthesis*
Formation through chemical synthesis. Processing to extract and isolate Schedule 1 chemicals.All production steps in any units within the same plant which includes associated processes—purification, separation, extraction distillation or refining.**
* Intermediates used in a single or multi-step process to produce another declared UDOC are not declarable. Start Printed Page 24934
** Intermediates are subject to declaration, except “transient intermediates,” which are those chemicals in a transition state in terms of thermodynamics and kinetics, that exist only for a very short period of time, and cannot be isolated, even by modifying or dismantling the plant, or by altering process operating conditions, or by stopping the process altogether are not subject to declaration.
End Part Start Part

PART 711—GENERAL INFORMATION REGARDING DECLARATION, REPORTING, AND ADVANCE NOTIFICATION REQUIREMENTS, AND THE ELECTRONIC FILING OF DECLARATIONS AND REPORTS

711.1
Overviews of declaration, reporting, and advance notification requirements.
711.2
Who submits declarations, reports, and advance notifications?
711.3
Compliance review.
711.4
Assistance in determining your obligations.
711.5
Numerical precision of submitted data.
711.6
Where to obtain forms.
711.7
Where to submit declarations, reports, and advance notifications.
711.8
How to request authorization from BIS to make electronic submissions of declarations or reports.
Start Authority

Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Overviews of declaration, reporting, and advance notification requirements.

Parts 712 through 715 of the CWCR (parts 710 through 729 of this subchapter) describe the declaration, advance notification and reporting requirements for Schedule 1, 2 and 3 chemicals and for unscheduled discrete organic chemicals (UDOCs). For each type of chemical, the Convention requires annual declarations. If, after reviewing parts 712 through 715 of the CWCR, you determine that you have declaration, advance notification or reporting requirements, you may obtain the appropriate forms by contacting the Bureau of Industry and Security (BIS) (see § 711.6 of the CWCR).

Who submits declarations, reports, and advance notifications.

The owner, operator, or senior management official of a facility subject to declaration, reporting, or advance notification requirements under the CWCR (parts 710 through 729 of this subchapter) is responsible for the submission of all required documents in accordance with all applicable provisions of the CWCR.

Compliance review.

Periodically, BIS will request information from persons and facilities subject to the CWCR to determine compliance with the reporting, declaration and notification requirements set forth herein. Information requested may relate to the production, processing, consumption, export, import, or other activities involving scheduled chemicals and unscheduled discrete organic chemicals described in parts 712 through 715 of the CWCR. Any person or facility subject to the CWCR and receiving such a request for information will be required to provide a response to BIS within 30 working days of receipt of the request. This requirement does not, in itself, impose a requirement to create new records or maintain existing records in a manner other than that directed by the recordkeeping provisions set forth in part 721 of the CWCR.

Assistance in determining your obligations.

(a) Determining if your chemical is subject to declaration, reporting or advance notification requirements. (1) If you need assistance in determining if your chemical is classified as a Schedule 1, Schedule 2, or Schedule 3 chemical, or is an unscheduled discrete organic chemical, submit your written request for a chemical determination to BIS. Such requests may be sent via facsimile to (703) 605-4425, e-mailed to cdr@cwc.gov, or mailed to the Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, Virginia 22209-2405, and must be marked, “ATTN: Chemical Determination.” Your request should include the information noted in paragraph (a)(2) of this section to ensure an accurate determination. Also include any additional information that you feel is relevant to the chemical or process involved (see part 718 of the CWCR for provisions regarding treatment of confidential business information). If you are unable to provide all of the information required in paragraph (a)(2) of this section, you should include an explanation identifying the reasons or deficiencies that preclude you from supplying the information. If BIS cannot make a determination based upon the information submitted, BIS will return the request to you and identify the additional information that is necessary to complete a chemical determination. BIS will provide a written response to your chemical determination request within 10 working days of receipt of the request.

(2) Include the following information in each chemical determination request:

(i) Date of request;

(ii) Company name and complete street address;

(iii) Point of contact;

(iv) Phone and facsimile number of contact;

(v) E-mail address of contact, if you want an acknowledgment of receipt sent via e-mail;

(vi) Chemical Name;

(vii) Structural formula of the chemical, if the chemical is not specifically identified by name and chemical abstract service registry number in Supplements No. 1 to parts 712 through 714 of the CWCR; and

(viii) Chemical Abstract Service registry number, if assigned.

(b) Other inquiries. If you need assistance in interpreting the provisions of the CWCR or need assistance with declaration, forms, reporting, advance notification, inspection or facility agreement issues, contact BIS's Treaty Compliance Division by phone at (703) 605-4400. If you require a response from BIS in writing, submit a detailed request to BIS that explains your question, issue, or request. Send the request to the address or facsimile included in paragraph (a) of this section, or e-mail the request to cwcqa@cwc.gov. Your request must be marked, “ATTN: CWCR Assistance.”

Numerical precision of submitted data.

Numerical information submitted in declarations and reports is to be provided per applicable rounding rules in each part (i.e., parts 712 through 715 of the CWCR) with a precision equal to that which can be reasonably provided using existing documentation, equipment, and measurement techniques.

Where to obtain forms.

(a) Forms to complete declarations and reports required by the CWCR may be obtained by contacting: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Blvd., Suite 700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Forms and forms software may also be downloaded from the Internet at www.cwc.gov.

(b) If the amount of information you are required to submit is greater than the given form will allow, multiple copies of forms may be submitted.

Where to submit declarations, reports and advanced notifications.

Declarations, reports and advance notifications required by the CWCR Start Printed Page 24935must be sent to: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Blvd., Suite 700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Advanced notifications may also be sent by facsimile to (703) 235-1481. Specific types of declarations and reports and due dates are outlined in Supplement No. 2 to parts 712 through 715 of the CWCR.

How to request authorization from BIS to make electronic submissions of declarations or reports.

(a) Scope. This section provides an optional method of submitting declarations or reports. Specifically, this section applies to the electronic submission of declarations and reports required under the CWCR. If you choose to submit declarations and reports by electronic means, all such electronic submissions must be made through the Web-Data Entry System for Industry (Web-DESI), which can be accessed on the CWC web site at www.cwc.gov.

(b) Authorization. If you or your company has a facility, plant site, or trading company that has been assigned a U.S. Code Number (USC Number), you may submit declarations and reports electronically, once you have received authorization from BIS to do so. An authorization to submit declarations and reports electronically may be limited or withdrawn by BIS at any time. There are no prerequisites for obtaining permission to submit electronically, nor are there any limitations with regard to the types of declarations or reports that are eligible for electronic submission. However, BIS may direct, for any reason, that any electronic declaration or report be resubmitted in writing, either in whole or in part.

(1) Requesting approval to submit declarations and reports electronically. To submit declarations and reports electronically, you or your company must submit a written request to BIS at the address identified in § 711.6 of the CWCR. Both the envelope and letter must be marked, “ATTN: Electronic Declaration or Report Request.” Your request should be on company letterhead and must contain your name or the company's name, your mailing address at the company, the name of the facility, plant site or trading company and its U.S. Code Number, the address of the facility, plant site or trading company (this address may be different from the mailing address), the list of persons who are authorized to view, edit, and/or submit declarations and reports on behalf of your company, and the telephone number and name and title of the owner, operator, or senior management official responsible for certifying that each person listed in the request is authorized to view, edit, and/or submit declarations and reports on behalf of you or your company (i.e., the certifying official). Additional information required for submitting electronic declarations and reports may be found on BIS's Web site at www.cwc.gov. Once you have completed and submitted the necessary certifications, BIS will review your request for authorization to view, edit, and/or submit declarations and reports electronically. BIS will notify you if additional information is required and/or upon completion of its review.

Note to § 711.8(b)(1):

You must submit a separate request for each facility, plant site or trading company owned by your company (e.g., each site that is assigned a unique U.S. Code Number).

(2) Assignment and use of passwords for facilities, plant sites and trading companies (USC password) and Web-DESI user accounts (user name and password). (i) Each person, facility, plant site or trading company authorized to submit declarations and reports electronically will be assigned a password (USC password) that must be used in conjunction with the U.S.C. Number. Each person authorized by BIS to view, edit, and/or submit declarations and reports electronically for a facility, plant site or trading company will be assigned a Web-DESI user account (user name and password) telephonically by BIS. A Web-DESI user account will be assigned to you only if your company has certified to BIS that you are authorized to act for it in viewing, editing, and/or submitting electronic declarations and reports under the CWCR.

Note to § 711.8(b)(2)(i):

When persons must have access to multiple Web-DESI accounts, their companies must identify such persons on the approval request for each of these Web-DESI accounts. BIS will coordinate with such persons to ensure that the assigned user name and password is the same for each account.

(ii) Your company may reveal the facility, plant site or trading company password (USC password) only to Web-DESI users with valid passwords, their supervisors, and employees or agents of the company with a commercial justification for knowing the password.

(iii) If you are an authorized Web-DESI account user, you may not:

(A) Disclose your user name or password to anyone;

(B) Record your user name or password, either in writing or electronically;

(C) Authorize another person to use your user name or password; or

(D) Use your user name or password following termination, either by BIS or by your company, of your authorization or approval for Web-DESI use.

(iv) To prevent misuse of the Web-DESI account:

(A) If Web-DESI user account information (i.e., user name and password) is lost, stolen or otherwise compromised, the company and the user must report the loss, theft or compromise of the user account information, immediately, by calling BIS at (703) 235-1335. Within two business days of making the report, the company and the user must submit written confirmation to BIS at the address provided in § 711.6 of the CWCR.

(B) Your company is responsible for immediately notifying BIS whenever a Web-DESI user leaves the employ of the company or otherwise ceases to be authorized by the company to submit declarations and reports electronically on its behalf.

(v) No person may use, copy, appropriate or otherwise compromise a Web-DESI account user name or password assigned to another person. No person, except a person authorized access by the company, may use or copy the facility, plant site or trading company password (USC password), nor may any person steal or otherwise compromise this password.

(c) Electronic submission of declarations and reports—(1) General instructions. Upon submission of the required certifications and approval of the company's request to use electronic submission, BIS will provide instructions on both the method for transmitting declarations and reports electronically and the process for submitting required supporting documents, if any. These instructions may be modified by BIS from time to time.

(2) Declarations and reports. The electronic submission of a declaration or report will constitute an official document as required under parts 712 through 715 of the CWCR. Such submissions must provide the same information as written declarations and reports and are subject to the recordkeeping provisions of part 720 of the CWCR. The company and Web-DESI user submitting the declaration or report will be deemed to have made all representations and certifications as if the submission were made in writing by the company and signed by the certifying official. Electronic submission of a declaration or report will be Start Printed Page 24936considered complete upon transmittal to BIS.

(d) Updating. A company approved for electronic submission of declarations or reports under Web-DESI must promptly notify BIS of any change in its name, ownership or address. If your company wishes to have a person added as a Web-DESI user, your company must inform BIS and follow the instructions provided by BIS. Your company should conduct periodic reviews to ensure that the company's designated certifying official and Web-DESI users are persons whose current responsibilities make it necessary and appropriate that they act for the company in either capacity.

End Part Start Part

PART 712—ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS

712.1
Round to zero rule that applies to activities involving Schedule 1 chemicals.
712.2
Restrictions on activities involving Schedule 1 chemicals.
712.3
Initial declaration requirements for declared facilities which are engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC.
712.4
New Schedule 1 production facility.
712.5
Annual declaration requirements for facilities engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC.
712.6
Advance notification and annual report of all exports and imports of Schedule 1 chemicals to, or from, other States Parties.
712.7
Amended declaration or report.
712.8
Declarations and reports returned without action by BIS.
712.9
Deadlines for submission of Schedule 1 declarations, reports, advance notifications, and amendments.

Supplement No. 1 to Part 712—Schedule 1 Chemicals

Supplement No. 2 to Part 712—Deadlines for Submission of Schedule 1 Declarations, Reports, Advance Notifications, Reports, and Amendments

Start Authority

Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Round to zero rule that applies to activities involving Schedule 1 chemicals.

Facilities that produce, export or import mixtures containing less than 0.5% aggregate quantities of Schedule 1 chemicals (see Supplement No. 1 to this part) as unavoidable by-products or impurities may round to zero and are not subject to the provisions of this part 712. Schedule 1 content may be calculated by volume or weight, whichever yields the lesser percent. Note that such mixtures may be subject to the regulatory requirements of other federal agencies.

Restrictions on activities involving Schedule 1 chemicals.

(a) You may not produce Schedule 1 chemicals for protective purposes.

(b) You may not import any Schedule 1 chemical unless:

(1) The import is from a State Party;

(2) The import is for research, medical, pharmaceutical, or protective purposes;

(3) The import is in types and quantities strictly limited to those that can be justified for such purposes; and

(4) You have notified BIS at least 45 calendar days prior to the import, pursuant to § 712.6 of the CWCR.

Note 1 to § 712.2(b):

Pursuant to § 712.6, advance notifications of import of saxitoxin of 5 milligrams or less for medical/diagnostic purposes must be submitted to BIS at least 3 days prior to import.

Note 2 to § 712.2(b):

For specific provisions relating to the prior advance notification of exports of all Schedule 1 chemicals, see § 745.1 of the Export Administration Regulations (EAR) (15 CFR parts 730 through 799). For specific provisions relating to license requirements for exports of Schedule 1 chemicals, see § 742.2 and § 742.18 of the EAR for Schedule 1 chemicals subject to the jurisdiction of the Department of Commerce and see the International Traffic in Arms Regulations (22 CFR parts 120 through 130) for Schedule 1 chemicals subject to the jurisdiction of the Department of State.

(c)(1) The provisions of paragraphs (a) and (b) of this section do not apply to the retention, ownership, possession, transfer, or receipt of a Schedule 1 chemical by a department, agency, or other entity of the United States, or by a person described in paragraph (c)(2) of this section, pending destruction of the Schedule 1 chemical;

(2) A person referred to in paragraph (c)(1) of this section is:

(i) Any person, including a member of the Armed Forces of the United States, who is authorized by law or by an appropriate officer of the United States to retain, own, possess transfer, or receive the Schedule 1 chemical; or

(ii) In an emergency situation, any otherwise non-culpable person if the person is attempting to seize or destroy the Schedule 1 chemical.

Initial declaration requirements for declared facilities which are engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC.

Initial declarations submitted in February 2000 remain valid until amended or rescinded. If you plan to change/amend the technical description of your facility submitted with your initial declaration, you must submit an amended initial declaration to BIS 200 calendar days prior to implementing the change (see § 712.5(b)(1)(ii) of the CWCR).

New Schedule 1 production facility.

(a) Establishment of a new Schedule 1 production facility. (1) If your facility has never before been declared under § 712.5 of the CWCR, or the initial declaration for your facility has been withdrawn pursuant to § 712.5(g) of the CWCR, and you intend to begin production of Schedule 1 chemicals at your facility in quantities greater than 100 grams aggregate per year for research, medical, or pharmaceutical purposes, you must provide an initial declaration (with a current detailed technical description of your facility) to BIS in no less than 200 calendar days in advance of commencing such production. Such facilities are considered to be “new Schedule 1 production facilities” and are subject to an initial inspection within 200 calendar days of submitting an initial declaration.

(2) New Schedule 1 production facilities that submit an initial declaration pursuant to paragraph (a)(1) of this section are considered approved Schedule 1 production facilities for purposes of the CWC, unless otherwise notified by BIS within 30 days of receipt by BIS of that initial declaration.

(b) Types of declaration forms required. If your new Schedule 1 production facility will produce in excess of 100 grams aggregate of Schedule 1 chemicals, you must complete the Certification Form, Form 1-1 and Form A. You must also provide a detailed technical description of the new facility or its relevant parts, and a detailed diagram of the declared areas in the facility.

(c) Two hundred days after a new Schedule 1 production facility submits its initial declaration, it is subject to the declaration requirements in § 712.5(a)(1) and (a)(2) and § 712.5(b)(1)(ii) of the CWCR.

Annual declaration requirements for facilities engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC.

(a) Declaration requirements—(1) Annual declaration on past activities. You must complete the forms specified in paragraph (b)(2) of this section if you produced at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year. As a declared Schedule 1 facility, in addition to declaring the production of each Schedule 1 chemical that Start Printed Page 24937comprises your aggregate production of Schedule 1 chemicals, you must also declare any Schedule 1, Schedule 2, or Schedule 3 precursor used to produce the declared Schedule 1 chemical. You must further declare each Schedule 1 chemical used (consumed) and stored at your facility, and domestically transferred from your facility during the previous calendar year, whether or not you produced that Schedule 1 chemical at your facility.

(2) Annual declaration on anticipated activities. You must complete the forms specified in paragraph (b)(3) of this section if you anticipate that you will produce at your facility more than 100 grams aggregate of Schedule 1 chemicals in the next calendar year. If you are not already a declared facility, you must complete an initial declaration (see § 712.4 of the CWCR) 200 calendar days before commencing operations or increasing production which will result in production of more than 100 grams aggregate of Schedule 1 chemicals.

(b) Declaration forms to be used—(1) Initial declaration. (i) You must have completed the Certification Form, Form 1-1 and Form A if you produced at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in calendar years 1997, 1998, or 1999. You must have provided a detailed current technical description of your facility or its relevant parts including a narrative statement, and a detailed diagram of the declared areas in the facility.

(ii) If you plan to change the technical description of your facility from your initial declaration completed and submitted pursuant to § 712.3 or § 712.4 of the CWCR, you must submit an amended initial declaration to BIS 200 calendar days prior to the change. Such amendments to your initial declaration must be made by completing a Certification Form, Form 1-1 and Form A, including the new description of the facility. See § 712.7 of the CWCR for additional instructions on amending Schedule 1 declarations.

(2) Annual declaration on past activities. If you are subject to the declaration requirement of paragraph (a)(1) of this section, you must complete the Certification Form and Forms 1-1, 1-2, 1-2A, 1-2B, and Form A if your facility was involved in the production of Schedule 1 chemicals in the previous calendar year. Form B is optional.

(3) Annual declaration on anticipated activities. If you anticipate that you will produce at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in the next calendar year you must complete the Certification Form and Forms 1-1, 1-4, and Form A. Form B is optional.

(c) Quantities to be declared. If you produced in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year, you must declare the entire quantity of such production, rounded to the nearest gram. You must also declare the quantity of any Schedule 1, Schedule 2 or Schedule 3 precursor used to produce the declared Schedule 1 chemical, rounded to the nearest gram. You must further declare the quantity of each Schedule 1 chemical consumed or stored by, or domestically transferred from, your facility, whether or not the Schedule 1 chemical was produced by your facility, rounded to the nearest gram. In calculating the amount of Schedule 1 chemical you produced, consumed or stored, count only the amount of the Schedule 1 chemical(s) in a mixture, not the total weight of the mixture (i.e., do not count the weight of the solution, solvent, or container).

(d) For the purpose of determining if a Schedule 1 chemical is subject to declaration, you must declare a Schedule 1 chemical that is an intermediate, but not a transient intermediate.

(e) “Declared” Schedule 1 facilities and routine inspections. Only facilities that submitted a declaration pursuant to paragraph (a)(1) or (a)(2) of this section or § 712.4 of the CWCR are considered “declared” Schedule 1 facilities. A “declared” Schedule 1 facility is subject to initial and routine inspection by the OPCW (see part 716 of the CWCR).

(f) Approval of declared Schedule 1 production facilities. Facilities that submit declarations pursuant to this section are considered approved Schedule 1 production facilities for purposes of the CWC, unless otherwise notified by BIS within 30 days of receipt by BIS of an annual declaration on past activities or annual declaration on anticipated activities (see paragraphs (a)(1) and (a)(2) of this section). If your facility does not produce more than 100 grams aggregate of Schedule 1 chemicals, no approval by BIS is required.

(g) Withdrawal of Schedule 1 initial declarations. A facility subject to §§ 712.3, 712.4 and 712.5 of the CWCR may withdraw its initial declaration at any time by notifying BIS in writing. A notification requesting the withdrawal of the initial declaration should be sent on company letterhead to the address in § 711.6 of the CWCR. BIS will acknowledge receipt of the withdrawal of the initial declaration. Facilities withdrawing their initial declaration may not produce subsequently in excess of 100 grams aggregate of Schedule 1 chemicals within a calendar year unless pursuant to § 712.4.

Advance notification and annual report of all exports and imports of Schedule 1 chemicals to, or from, other States Parties.

Pursuant to the Convention, the United States is required to notify the OPCW not less than 30 days in advance of every export or import of a Schedule 1 chemical, in any quantity, to or from another State Party. In addition, the United States is required to provide a report of all exports and imports of Schedule 1 chemicals to or from other States Parties during each calendar year. If you plan to export or import any quantity of a Schedule 1 chemical from or to your declared facility, undeclared facility or trading company, you must notify BIS in advance of the export or import and complete an annual report of exports and imports that actually occurred during the previous calendar year. The United States will transmit to the OPCW the advance notifications and a detailed annual declaration of each actual export or import of a Schedule 1 chemical from/to the United States. Note that the advance notification and annual report requirements of this section do not relieve you of any requirement to obtain a license for export of Schedule 1 chemicals subject to the EAR or ITAR or a license for import of Schedule 1 chemicals from the Department of Justice under the Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 447. Only “declared” facilities, as defined in § 712.5(e) of the CWCR, are subject to initial and routine inspections pursuant to part 716 of the CWCR.

(a) Advance notification of exports and imports. You must notify BIS at least 45 calendar days prior to exporting or importing any quantity of a Schedule 1 chemical, except for exports or imports of 5 milligrams or less of Saxitoxin—B (7)—for medical/diagnostic purposes, listed in Supplement No. 1 to this part to or from another State Party. Advance notification of export or import of 5 milligrams or less of Saxitoxin for medical/diagnostic purposes only, must be submitted to BIS at least 3 calendar days prior to export or import. Note that advance notifications for exports may be sent to BIS prior to or after submission of a license application to BIS for Schedule 1 chemicals subject to the EAR and controlled under ECCN 1C351 or to the Department of State for Schedule 1 chemicals controlled under the ITAR. Such advance notifications must be submitted separately from license applications. Start Printed Page 24938

(1) Advance notifications should be on company letterhead or must clearly identify the reporting entity by name of company, complete address, name of contact person and telephone and facsimile numbers, along with the following information:

(i) Chemical name;

(ii) Structural formula of the chemical;

(iii) Chemical Abstract Service (CAS) Registry Number;

(iv) Quantity involved in grams;

(v) Planned date of export or import;

(vi) Purpose (end-use) of export or import (i.e., research, medical, pharmaceutical, or protective purposes);

(vii) Name(s) of exporter and importer;

(viii) Complete street address(es) of exporter and importer;

(ix) U.S. export license or control number, if known; and

(x) Company identification number, once assigned by BIS.

(2) Send the advance notification by facsimile to (703) 235-1481 or to the following address for mail and courier deliveries: Treaty Compliance Division, Bureau of Industry and Security, Department of Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, VA 22209-2405, Attn: “Advance Notification of Schedule 1 Chemical [Export] [Import].”

(3) Upon receipt of the advance notification, BIS will inform the exporter or importer of the earliest date after which the shipment may occur under the advance notification procedure. To export a Schedule 1 chemical subject to an export license requirement either under the EAR or the ITAR, the exporter must have applied for and been granted a license (see § 742.2 and § 742.18 of the EAR, or the ITAR at 22 CFR parts 120 through 130).

(b) Annual report requirements for exports and imports of Schedule 1 chemicals. Any person subject to the CWCR that exported or imported any quantity of Schedule 1 chemical to or from another State Party during the previous calendar year has a reporting requirement under this section.

(1) Annual report on exports and imports. Declared and undeclared facilities, trading companies, and any other person subject to the CWCR that exported or imported any quantity of a Schedule 1 chemical to or from another State Party in a previous calendar year must submit an annual report on exports and imports.

(2) Report forms to submit.—(i) Declared Schedule 1 facilities. (A) If your facility declared production of a Schedule 1 chemical and you also exported or imported any amount of that same Schedule 1 chemical, you must report the export or import by submitting either:

(1) Combined declaration and report. Submit, along with your declaration, Form 1-3 for that same Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional; or

(2) Report. Submit, separately from your declaration, a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional.

(B) If your facility declared production of a Schedule 1 chemical and exported or imported any amount of a different Schedule 1 chemical, you must report the export or import by submitting either:

(1) Combined declaration and report. Submit, along with your declaration, a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional; or

(2) Report. Submit, separately from your declaration, a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional.

(ii) If you are an undeclared facility, trading company, or any other person subject to the CWCR, and you exported or imported any amount of a Schedule 1 chemical, you must report the export or import by submitting a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional.

(c) Paragraph (a) of this section does not apply to the activities and persons set forth in § 712.2(b) of the CWCR.

Amended declaration or report.

In order for BIS to maintain accurate information on previously submitted facility declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or report requirements, amended declarations or reports will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities and annual reports on exports and imports submitted for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report.

(a) Changes to information that directly affect inspection of a declared facility's Annual Declaration of Past Activities (ADPA) or Annual Declaration on Anticipated Activities (ADAA). You must submit an amended declaration or report to BIS within 15 days of any change in the following information:

(1) Types of Schedule 1 chemicals produced (e.g., additional Schedule 1 chemicals);

(2) Quantities of Schedule 1 chemicals produced;

(3) Activities involving Schedule 1 chemicals; and

(4) End-use of Schedule 1 chemicals (e.g., additional end-use(s)).

(b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report for changes to export or import information within 15 days of any change in the following export or import information:

(1) Types of Schedule 1 chemicals exported or imported (e.g., additional Schedule 1 chemicals);

(2) Quantities of Schedule 1 chemicals exported or imported;

(3) Destination(s) of Schedule 1 chemicals exported;

(4) Source(s) of Schedule 1 chemicals imported;

(5) Activities involving exports and imports of Schedule 1 chemicals; and

(6) End-use(s) of Schedule 1 chemicals exported or imported (e.g., additional end-use(s)).

(c) Changes to company and facility information previously submitted to BIS in the ADPA, the ADAA, and the Annual Report on Exports and Imports.—(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information:

(i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;

(ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number(s), and facsimile number(s);

(iii) Company name (see § 712.7(c)(2) of the CWCR for other company changes);

(iv) Company mailing address;

(v) Facility name;

(vi) Facility owner, including telephone number, and facsimile number; and

(vii) Facility operator, including telephone number, and facsimile number.

(2) Change in ownership of company or facility. If you sold or purchased a declared facility or trading company, you must submit an amended declaration or report to BIS, either before the effective date of the change or Start Printed Page 24939within 30 days after the effective date of the change. The amended declaration or report must include the following information:

(i) Information that must be submitted to BIS by the company selling a declared facility:

(A) Name of seller (i.e., name of the company selling a declared facility);

(B) Name of the declared facility and U.S. Code Number for that facility;

(C) Name of purchaser (i.e., name of the new company purchasing a declared facility) and identity of contact person for the purchaser, if known;

(D) Date of ownership transfer or change;

(E) Additional details on sale of the declared facility relevant to ownership or operational control over any portion of that facility (e.g., whether the entire facility or only a portion of the declared facility has been sold to a new owner); and

(F) Details regarding whether the new owner will submit the next declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the facility or trading company.

(1) If the new owner is responsible for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the facility.

(2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the facility (“part-year declarations”), and if, at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in §§ 712.4 and 712.5 of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.

(3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in §§ 712.4 and 712.5 of the CWCR, BIS will return the declarations without action as set forth in § 712.8 of the CWCR.

(4) If part-year reports are submitted by the previous owner and the new owner as required in § 712.5 of the CWCR, BIS will submit both reports in the OPCW.

(ii) Information that must be submitted to BIS by the company purchasing a declared facility:

(A) Name of purchaser (i.e., name of company purchasing a declared facility;

(B) Mailing address of purchaser;

(C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;

(D) Name of inspection points of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s) and e-mail address(es);

(E) Name of the declared facility and U.S. Code Number for that facility;

(F) Location of the declared facility;

(G) Owner and operator of the declared facility, including telephone number, and facsimile number; and

(H) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the facility or trading company.

(1) If the new owner is taking responsibility for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the facility.

(2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the facility, and, at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in §§ 712.4 and 712.5 of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.

(3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in §§ 712.4 and 712.5 of the CWCR, BIS will return the declarations without action as set forth in § 712.8 of the CWCR.

(4) If part-year reports are submitted by the previous owner and the new owner as required in § 712.5 of the CWCR, BIS will submit both reports to the OPCW.

Note 1 to § 712.7(c):

You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.

Note 2 to § 712.7(c):

You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared facility or trading company.

Note 3 to § 712.7(c):

For ownership changes, the declared facility or trading company will maintain its original U.S. Code Number, unless the facility or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers for the new facilities.

(d) Inspection-related amendments. If, following completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to §§ 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of the BIS post-inspection letter.

(e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non-substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report.

(f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either:

(1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or

(2) Both of the following:

(i) A new Certification Form (i.e., Form 1-1); and

(ii) The specific forms (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the provisions of this part 712, to amend your declaration or report.

Declarations and reports returned without action by BIS.

If you submit a declaration or report and BIS determines that the information contained therein is not required by the Start Printed Page 24940CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action (RWA). However, BIS will maintain a copy of the RWA letter.

Deadlines for submission of Schedule 1 declarations, reports, advance notifications, and amendments.

Declarations, reports, advance notifications, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 712. Required declarations, reports, advance notifications, and amendments include:

(a) Annual declaration on past activities (Schedule 1 chemical production during the previous calendar year);

(b) Annual report on exports and imports of Schedule 1 chemicals from facilities, trading companies, and other persons (during the previous calendar year);

(c) Combined declaration and report (production of Schedule 1 chemicals, as well as exports or imports of the same or different Schedule 1 chemicals, by a declared facility during the previous calendar year);

(d) Annual declaration on anticipated activities (anticipated production of Schedule 1 chemicals in the next calendar year);

(e) Advance notification of any export to or import from another State Party;

(f) Initial declaration of a new Schedule 1 chemical production facility; and

(g) Amended declaration or report, including combined declaration and report.

Supplement No. 1 to Part 712.—Schedule 1 Chemicals

(CAS registry number)
A. Toxic chemicals:
(1) O-Alkyl (≤C10, incl. cycloalkyl) alkyl (Me, Et, n-Pr or i-Pr)-phosphonofluoridates
e.g. Sarin: O-Isopropyl methylphosphonofluoridate(107-44-8)
Soman: O-Pinacolyl methylphosphonofluoridate(96-64-0)
(2) O-Alkyl (≤C10, incl. cycloalkyl) N,N-dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidocyanidates e.g. Tabun: O-Ethyl N,N-dimethyl phosphoramidocyanidate(77-81-6)
(3) O-Alkyl (H or ≤C10, incl. cycloalkyl) S-2-dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl (Me, Et, n-Pr or i-Pr) phosphonothiolates and corresponding alkylated or protonated salts e.g. VX: O-Ethyl S-2-diisopropylaminoethyl methyl phosphonothiolate(50782-69-9)
(4) Sulfur mustards:
2-Chloroethylchloromethylsulfide(2625-76-5)
Mustard gas: Bis(2-chloroethyl)sulfide(505-60-2)
Bis(2-chloroethylthio)methane(63869-13-6)
Sesquimustard: 1,2-Bis(2-chloroethylthio)ethane(3563-36-8)
1,3-Bis(2-chloroethylthio)-n-propane(63905-10-2)
1,4-Bis(2-chloroethylthio)-n-butane(142868-93-7)
1,5-Bis(2-chloroethylthio)-n-pentane(142868-94-8)
Bis(2-chloroethylthiomethyl)ether(63918-90-1)
O-Mustard: Bis(2-chloroethylthioethyl)ether(63918-89-8)
(5) Lewisites:
Lewisite 1: 2-Chlorovinyldichloroarsine(541-25-3)
Lewisite 2: Bis(2-chlorovinyl)chloroarsine(40334-69-8)
Lewisite 3: Tris(2-chlorovinyl)arsine(40334-70-1)
(6) Nitrogen mustards:
HN1: Bis(2-chloroethyl)ethylamine(538-07-8)
HN2: Bis(2-chloroethyl)methylamine(51-75-2)
HN3: Tris(2-chloroethyl)amine(555-77-1)
(7) Saxitoxin(35523-89-8)
(8) Ricin(9009-86-3)
B. Precursors:
(9) Alkyl (Me, Et, n-Pr or i-Pr) phosphonyldifluorides e.g. DF: Methylphosphonyldifluoride(676-99-3)
(10) O-Alkyl (H or ≤C10, incl. cycloalkyl) O-2-dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl (Me, Et, N-Pr or i-Pr) phosphonites and corresponding alkylated or protonated salts e.g. QL: O-Ethyl O-2-diisopropylaminoethyl methylphosphonite(57856-11-8)
(11) Chlorosarin: O-Isopropyl methylphosphonochloridate(1445-76-7)
(12) Chlorosoman: O-Pinacolyl methylphosphonochloridate(7040-57-5)
Notes to Supplement No. 1
Note 1: Note that the following Schedule 1 chemicals are controlled for export purposes under the Export Administration Regulations (see part 774 of the EAR, the Commerce Control List): Saxitoxin (35523-89-8) and Ricin (9009-86-3).
Note 2: All Schedule 1 chemicals not listed in Note 1 to this Supplement are controlled for export purposes by the Directorate of Defense Trade Controls of the Department of State under the International Traffic in Arms Regulations (22 CFR parts 120 through 130).

Supplement No. 2 to Part 712.—Deadlines for Submission of Schedule 1 Declarations, Advance Notifications, Reports, and Amendments

Declarations, advance notifications and reportsApplicable formsDue dates
Annual Declaration on Past Activities (previous calendar year)—Declared facility (past production)Certification, 1-1, 1-2,1-2A,1-2B, A (as appropriate), B (optional)February 28th of the year following any calendar year in which more than 100 grams aggregate of Schedule 1 chemicals were produced,
Start Printed Page 24941
Annual report on exports and imports (previous calendar year) (facility, trading company, other persons)Certification, 1-1,1-3, A (as appropriate), B (optional)February 28th of the year following any calendar year in which Schedule 1 chemicals were exported or imported.
Combined Declaration and ReportCertification, 1-1, 1-2, 1-2A, 1-2B, 1-3, A (as appropriate), B (optional)February 28th of the year following any calendar year in which Schedule 1 chemicals were produced, exported, or imported.
Annual Declaration of Anticipated Activities (next calendar year)Certification, 1-1, 1-4, A (as appropriate), B (optional)September 3rd of the year prior to any calendar year in which Schedule 1 activities are anticipated to occur.
Advance Notification of any export to or import from another State PartyNotify on letterhead. See § 712.6 of the CWCR45 calendar days prior to any export or import of Schedule 1 chemicals, except 3 days prior to export or import of 5 milligrams or less of saxitoxin for medical/diagnositc purposes.
Initial Declaration of a new Schedule 1 facility (technical description)Certification, 1-1, A (as appropriate), B (optional)200 calendar days prior to producing in excess of 100 grams aggregate of Schedule 1 chemicals.
Amended DeclarationCertification, 1-1, 1-2, 1-2A
—Chemicals/Activities: § 712.7(a)—15 calendar days after change in information.
—Company information: § 712.7(c)—30 calendar days after change in information.
—Post-inspection letter: § 712.7(d)—45 calendar days after receipt of letter.
Amended Report § 712.7(b)Certification, 1-1, 1-3, A (as appropriate), B (optional)—15 calendar days after change in information.
Amended Combined Declaration & ReportCertification, 1-1, 1-2, 1-2A, 1-3, A (as appropriate), B (optional)—15 calendar days after change in information.
End Part Start Part

PART 713—ACTIVITIES INVOLVING SCHEDULE 2 CHEMICALS

713.1
Prohibition on exports and imports of Schedule 2 chemicals to and from States not Party to the CWC.
713.2
Annual declaration requirements for plant sites that produce, process or consume Schedule 2 chemicals in excess of specified thresholds.
713.3
Annual declaration and reporting requirements for exports and imports of Schedule 2 chemicals.
713.4
Advance declaration requirements for additionally planned production, processing or consumption of Schedule 2 chemicals.
713.5
Amended declaration or report.
713.6
Declarations and reports returned without action by BIS.
713.7
Deadlines for submission of Schedule 2 declarations, reports, and amendments.

Supplement No. 1 to Part 713—Schedule 2 Chemicals

Supplement No. 2 to Part 713—Deadlines for Submission of Schedule 2 Declarations, Reports, and Amendments

Start Authority

Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq; E.O. 12938 59 FR 59099, 3 CFR, 1994 Comp., p. 950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Prohibition on exports and imports of Schedule 2 chemicals to and from States not Party to the CWC.

(a) You may not export any Schedule 2 chemical (see Supplement No. 1 to this part) to any destination or import any Schedule 2 chemical from any destination other than a State Party to the Convention. See Supplement No. 1 to part 710 of the CWCR for a list of States that are party to the Convention.

Note to § 713.1(a):

See § 742.18 of the Export Administration Regulations (EAR) (15 CFR part 742) for prohibitions that apply to exports of Schedule 2 chemicals to States not Party to the CWC.

(b) Paragraph (a) of this section does not apply to:

(1) The export or import of a Schedule 2 chemical to or from a State not Party to the CWC by a department, agency, or other entity of the United States, or by any person, including a member of the Armed Forces of the United States, who is authorized by law, or by an appropriate officer of the United States to transfer or receive the Schedule 2 chemical;

(2) Mixtures containing Schedule 2A chemicals, if the concentration of each Schedule 2A chemical in the mixture is 1% or less by weight (note, however, that such mixtures may be subject to the regulatory requirements of other federal agencies);

(3) Mixtures containing Schedule 2B chemicals if the concentration of each Schedule 2B chemical in the mixture is 10% or less by weight (note, however, that such mixtures may be subject to the regulatory requirements of other federal agencies); or

(4) Products identified as consumer goods packaged for retail sale for personal use or packaged for individual use.

Annual declaration requirements for plant sites that produce, process or consume Schedule 2 chemicals in excess of specified thresholds.

(a) Declaration of production, processing or consumption of Schedule 2 chemicals for purposes not prohibited by the CWC—(1) Quantities of production, processing or consumption that trigger declaration requirements. You must complete the forms specified in paragraph (b) of this section if you have been or will be involved in the following activities:

(i) Annual declaration on past activities. (A) You produced, processed or consumed at one or more plants on your plant site during any of the previous three calendar years, a Schedule 2 chemical in excess of any of the following declaration threshold quantities:

(1) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule 2, paragraph A.3 in Supplement No. 1 to this part);

(2) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene or 100 kilograms of chemical Amiton: 0,0-Diethyl S-[2-(diethylamino) Start Printed Page 24942ethyl] phosphorothiolate and corresponding alkylated or protonated salts (see Schedule 2, paragraphs A.1 and A.2 in Supplement No. 1 to this part); or

(3) 1 metric ton of any chemical listed in Schedule 2, Part B (see Supplement No. 1 to this part).

(B) In order to trigger a declaration requirement for a past activity (i.e., production, processing or consumption) involving a Schedule 2 chemical, a plant on your plant site must have exceeded the applicable declaration threshold for that particular activity during one or more of the previous three calendar years. For example, if a plant on your plant site produced 800 kilograms of thiodiglycol and consumed 300 kilograms of the same Schedule 2 chemical, during the previous calendar year, you would not have a declaration requirement based on these activities, because neither activity at your plant would have exceeded the declaration threshold of 1 metric ton for that Schedule 2 chemical. However, a declaration requirement would apply if an activity involving a Schedule 2 chemical at the plant exceeded the declaration threshold in an earlier year (i.e., during the course of any other calendar year within the past three calendar years), as indicated in the example provided in the note to this paragraph.

Note to § 713.2(a)(1)(i)(B):

To determine whether or not you have an annual declaration on past activities requirement for Schedule 2 chemicals, you must determine whether you produced, processed or consumed a Schedule 2 chemical above the applicable threshold at one or more plants on your plant site in any one of the three previous calendar years. For example, for the 2004 annual declaration on past activities period, if you determine that one plant on your plant site produced greater than 1 kilogram of the chemical BZ in calendar year 2002, and no plants on your plant site produced, processed or consumed any Schedule 2 chemical above the applicable threshold in calendar years 2003 or 2004, you still have a declaration requirement under this paragraph for the previous calendar year (2004). However, you must only declare on Form 2-3 (question 2-3.1), production data for calendar year 2004. You would declare “0” production because you did not produce BZ above the applicable threshold in calendar year 2004. Since the plant site did not engage in any other declarable activity (i.e., consumption, processing) in the 2002-2004 declaration period, you would leave blank questions 2-3.2 and 2-3.3 on Form 2-3. Note that declaring a “0” production quantity for 2004, as opposed to leaving the question blank, permits BIS to distinguish the activity that triggered the declaration requirement from activities that were not declarable during that period.

(ii) Annual declaration on anticipated activities. You anticipate that you will produce, process or consume at one or more plants on your plant site during the next calendar year, a Schedule 2 chemical in excess of the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section.

Note to § 713.2(a)(1)(ii):

A null “0” declaration is not required if you do not plan to produce, process or consume a Schedule 2 chemical in the next calendar year.

(2) Schedule 2 chemical production. (i) For the purpose of determining Schedule 2 production, you must include all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.

(ii) For the purpose of determining if a Schedule 2 chemical is subject to declaration, you must declare an intermediate Schedule 2 chemical, but not a transient intermediate Schedule 2 chemical.

(3) Mixtures containing a Schedule 2 chemical. (i) Mixtures that must be counted. You must count the quantity of each Schedule 2 chemical in a mixture, when determining the total quantity of a Schedule 2 chemical produced, processed, or consumed at a plant on your plant site, if the concentration of each Schedule 2 chemical in the mixture is 30% or more by volume or by weight, whichever yields the lesser percent. Do not count a Schedule 2 chemical in the mixture that represents less than 30% by volume or by weight.

(ii) How to count the quantity of each Schedule 2 chemical in a mixture. If your mixture contains 30% or more concentration of a Schedule 2 chemical, you must count the quantity (weight) of each Schedule 2 chemical in the mixture, not the total weight of the mixture. You must separately declare each Schedule 2 chemical with a concentration in the mixture that is 30% or more and exceeds the quantity threshold detailed in paragraphs (a)(1)(i)(A)(1) through (3) of this section.

(iii) Determining declaration requirements for production, processing and consumption. If the total quantity of a Schedule 2 chemical produced, processed or consumed at a plant on your plant site, including mixtures that contain 30% or more concentration of a Schedule 2 chemical, exceeds the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section, you have a declaration requirement. For example, if during calendar year 2001, a plant on your plant site produced a mixture containing 300 kilograms of thiodiglycol in a concentration of 32% and also produced 800 kilograms of thiodiglycol, the total amount of thiodiglycol produced at that plant for CWCR purposes would be 1100 kilograms, which exceeds the declaration threshold of 1 metric ton for that Schedule 2 chemical. You must declare past production of thiodiglycol at that plant site for calendar year 2001. If, on the other hand, a plant on your plant site processed a mixture containing 300 kilograms of thiodiglycol in a concentration of 25% and also processed 800 kilograms of thiodiglycol in other than mixture form, the total amount of thiodiglycol processed at that plant for CWCR purposes would be 800 kilograms and would not trigger a declaration requirement. This is because the concentration of thiodiglycol in the mixture is less than 30% and therefore did not have to be “counted” and added to the other 800 kilograms of processed thiodiglycol at that plant.

(b) Types of declaration forms to be used—(1) Annual declaration on past activities. You must complete the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A, and Form A if one or more plants on your plant site produced, processed or consumed more than the applicable threshold quantity of a Schedule 2 chemical described in paragraphs (a)(1)(i)(A)(1) through (3) of this section in any of the three previous calendar years. Form B is optional. If you are subject to annual declaration requirements, you must include data for the previous calendar year only.

(2) Annual declaration on anticipated activities. You must complete the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A, 2-3C, and Form A if you plan to produce, process, or consume at any plant on your plant site a Schedule 2 chemical above the applicable threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section during the following calendar year. Form B is optional.

(c) Quantities to be declared—(1) Production, processing and consumption of a Schedule 2 chemical above the declaration threshold—(i) Annual declaration on past activities. If you are required to complete forms pursuant to paragraph (a)(1)(i) of this section, you must declare the aggregate quantity resulting from each type of activity (production, processing or consumption) from each plant on your plant site that exceeds the applicable Start Printed Page 24943threshold for that Schedule 2 chemical. Do not include in these aggregate production, processing, and consumption quantities any data from plants on the plant site that did not individually produce, process or consume a Schedule 2 chemical in amounts greater than the applicable threshold. For example, if a plant on your plant site produced a Schedule 2 chemical in an amount greater than the applicable declaration threshold during the previous calendar year, you would have to declare only the production quantity from that plant, provided that the total amount of the Schedule 2 chemical processed or consumed at the plant did not exceed the applicable declaration threshold during any one of the previous three calendar years. If in the previous calendar year your production, processing and consumption activities all were below the applicable declaration threshold, but your declaration requirement is triggered because of production activities occurring in an earlier year, you would declare “0” only for the declared production activities.

(ii) Annual declaration on anticipated activities. If you are required to complete forms pursuant to paragraph (a)(1)(ii) of this section, you must declare the aggregate quantity of any Schedule 2 chemical that you plan to produce, process or consume at any plant(s) on your plant site above the applicable thresholds set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section during the next calendar year. Do not include in these anticipated aggregate production, processing, and consumption quantities any data from plants on the plant site that you do not anticipate will individually produce, process or consume a Schedule 2 chemical in amounts greater than the applicable thresholds.

(2) Rounding. For the chemical BZ, report quantities to the nearest hundredth of a kilogram (10 grams). For PFIB and the Amiton family, report quantities to the nearest 1 kilogram. For all other Schedule 2 chemicals, report quantities to the nearest 10 kilograms.

(d) “Declared” Schedule 2 plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a “declared” plant site.

(e) Declared Schedule 2 plant sites subject to initial and routine inspections. A “declared” Schedule 2 plant site is subject to initial and routine inspection by the Organization for the Prohibition of Chemical Weapons if it produced, processed or consumed in any of the three previous calendar years, or is anticipated to produce, process or consume in the next calendar year, in excess of ten times the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section (see part 716 of the CWCR). A “declared” Schedule 2 plant site that has received an initial inspection is subject to routine inspection.

Annual declaration and reporting requirements for exports and imports of Schedule 2 chemicals.

(a) Declarations and reports of exports and imports of Schedule 2 chemicals—(1) Declarations. A Schedule 2 plant site that is declared because it produced, processed or consumed a Schedule 2 chemical at one or more plants above the applicable threshold set forth in paragraph (b) of this section, and also exported from or imported to the plant site that same Schedule 2 chemical above the applicable threshold, must submit export and import information as part of its declaration.

(2) Reports. The following persons must submit a report if they individually exported or imported a Schedule 2 chemical above the applicable threshold indicated in paragraph (b) of this section:

(i) A declared plant site that exported or imported a Schedule 2 chemical that was different than the Schedule 2 chemical produced, processed or consumed at one or more plants at the plant site above the applicable declaration threshold;

(ii) An undeclared plant site;

(iii) A trading company; or

(iv) Any other person subject to the CWCR.

Note to § 713.3(a)(1) and (a)(2)(i):

A declared Schedule 2 plant site may need to declare exports or imports of Schedule 2 chemicals that it produced, processed or consumed above the applicable threshold and also report exports or imports of different Schedule 2 chemicals that it did not produce, process or consume above the applicable threshold quantities. The report may be submitted to BIS either with or separately from the annual declaration on past activities (see § 713.3(d) of the CWCR).

Note to § 713.3(a)(2):

The U.S. Government will not submit to the OPCW company-specific information relating to the export or import of Schedule 2 chemicals contained in reports . The U.S. Government will add all export and import information contained in reports to export and import information contained in declarations to establish the U.S. national aggregate declaration on exports and imports.

Note to § 713.3(a)(1) and (2):

Declared and undeclared plant sites must count, for declaration or reporting purposes, all exports from and imports to the entire plant site, not only from or to individual plants on the plant site.

(b) Quantities of exports or imports that trigger a declaration or reporting requirement. (1) You have a declaration or reporting requirement and must complete the forms specified in paragraph (d) of this section if you exported or imported a Schedule 2 chemical in excess of the following threshold quantities:

(i) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (See Schedule 2, paragraph A.3 included in Supplement No. 1 to this part);

(ii) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene or 100 kilograms of Amiton: O,O Diethyl S-[2(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (see Schedule 2, paragraphs A.1 and A.2 included in Supplement No.1 to this part); or

(iii) 1 metric ton of any chemical listed in Schedule 2, Part B (see Supplement No.1 to this part).

(2) Mixtures containing a Schedule 2 chemical. The quantity of each Schedule 2 chemical contained in a mixture must be counted for the declaration or reporting of an export or import only if the concentration of each Schedule 2 chemical in the mixture is 30% or more by volume or by weight, whichever yields the lesser percent. You must declare separately each Schedule 2 chemical whose concentration in the mixture is 30% or more.

Note 1 to § 713.3(b)(2):

See § 713.2(a)(2)(ii) of the CWCR for information on counting amounts of Schedule 2 chemicals contained in mixtures and determining declaration and reporting requirements.

Note 2 to § 713.3(b)(2):

The “30% and above” mixtures rule applies only for declaration and reporting purposes. This rule does not apply for purposes of determining whether the export of your mixture to a non-State Party requires an End-Use Certificate or for determining whether you need an export license from BIS (see § 742.2, § 742.18 and § 745.2 of the Export Administration Regulations) or from the Department of State (see the International Traffic in Arms Regulations (22 CFR parts 120 through130)).

(c) Declaration and reporting requirements—(1) Annual declaration on past activities. A plant site described in paragraph (a)(1) of this section that has an annual declaration requirement for the production, processing, or consumption of a Schedule 2 chemical for the previous calendar year also must declare the export and/or import of that same Schedule 2 chemical if the amount exceeded the applicable threshold set forth in paragraph (b) of this section. The plant site must declare such export or import information as part of its annual declaration of past activities. Start Printed Page 24944

(2) Annual report on exports and imports. Declared plant sites described in paragraph (a)(2)(i) of this section, and undeclared plant sites, trading companies or any other person (described in paragraphs (a)(2)(ii) through (iv) of this section) subject to the CWCR that exported or imported a Schedule 2 chemical in a previous calendar year in excess of the applicable thresholds set forth in paragraph (b) of this section must submit an annual report on such exports or imports.

(d) Types of declaration and reporting forms to be used—(1) Annual declaration on past activities. If you are a declared Schedule 2 plant site, as described in paragraph (a)(1) of this section, you must complete Form 2-3B, in addition to the forms required by § 713.2(b)(1) of the CWCR, for each declared Schedule 2 chemical exported or imported above the applicable threshold in the previous calendar year.

(2) Annual report on exports and imports. (i) If you are a declared plant site, as described in paragraph (a)(2)(i) of this section, you may fulfill your annual reporting requirements by:

(A) Submitting, with your annual declaration on past activities, a Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional; or

(B) Submitting, separately from your annual declaration on past activities, a Certification Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional.

(ii) If you are an undeclared plant site, trading company or any other person subject to the CWCR, you must complete the Certification Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional.

(e) Quantities to be declared—(1) Calculations. If you exported from or imported to your plant site, trading company, or other location more than the applicable threshold of a Schedule 2 chemical in the previous calendar year, you must declare or report all exports and imports of that chemical by country of destination or country of origin, respectively, and indicate the total amount exported to or imported from each country.

(2) Rounding. For purposes of declaring or reporting exports and imports of a Schedule 2 chemical, you must total all exports and imports per calendar year per recipient or source and then round as follows: For the chemical BZ, the total quantity for each country of destination or country of origin (source) should be reported to the nearest hundredth of a kilogram (10 grams); for PFIB and Amiton and corresponding alkylated or protonated salts, the quantity for each destination or source should be reported to the nearest 1 kilogram; and for all other Schedule 2 chemicals, the total quantity for each destination or source should be reported to the nearest 10 kilograms.

Advance declaration requirements for additionally planned production, processing, or consumption of Schedule 2 chemicals.

(a) Declaration requirements for additionally planned activities. (1) You must declare additionally planned production, processing, or consumption of Schedule 2 chemicals after the annual declaration on anticipated activities for the next calendar year has been delivered to BIS if:

(i) You plan that a previously undeclared plant on your plant site under § 713.2(a)(1)(ii) of the CWCR will produce, process, or consume a Schedule 2 chemical above the applicable declaration threshold;

(ii) You plan to produce, process, or consume at a plant declared under § 713.2(a)(1)(ii) of the CWCR an additional Schedule 2 chemical above the applicable declaration threshold;

(iii) You plan an additional activity (production, processing, or consumption) at your declared plant above the applicable declaration threshold for a chemical declared under § 713.2(a)(1)(ii) of the CWCR;

(iv) You plan to increase the production, processing, or consumption of a Schedule 2 chemical by a plant declared under § 713.2(a)(1)(ii) of the CWCR from the amount exceeding the applicable declaration threshold to an amount exceeding the applicable inspection threshold (see § 716.1(b)(2) of the CWCR);

(v) You plan to change the starting or ending date of anticipated production, processing, or consumption declared under § 713.2(a)(1)(ii) of the CWCR by more than three months; or

(vi) You plan to increase your production, processing, or consumption of a Schedule 2 chemical by a declared plant site by 20 percent or more above that declared under § 713.2(a)(1)(ii) of the CWCR.

(2) If you must submit a declaration on additionally planned activities because you plan to engage in any of the activities listed in paragraphs (a)(1)(i) through (vi) of this section, you also should declare changes to your declaration relating to the following activities. You do not have to submit an additionally planned declaration if you are only changing the following non-quantitative activities:

(i) Changes to the plant's production capacity;

(ii) Changes or additions to the product group codes for the plant site or the plant(s);

(iii) Changes to the plant's activity status (i.e., dedicated, multipurpose, or other status);

(iv) Changes to the plant's multipurpose activities;

(v) Changes to the plant site's status relating to domestic transfer of the chemical;

(vi) Changes to the plant site's purposes for which the chemical will be produced, processed or consumed; or

(vii) Changes to the plant site's status relating to exports of the chemical or the addition of new countries for export.

(b) Declaration forms to be used. If you are required to declare additionally planned activities pursuant to paragraph (a) of this section, you must complete the Certification Form and Forms 2-1, 2-2, 2-3, and 2-3C as appropriate. Such forms are due to BIS at least 15 days prior to beginning the additional activity.

Amended declaration or report.

In order for BIS to maintain accurate information on previously submitted plant site declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or reporting requirements, amended declarations or reports will be required under the circumstances described in this section. This section applies only to annual declarations on past activities submitted for the three previous calendar years, annual reports on exports and imports for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report.

(a) Changes to information that directly affect inspection of a declared plant site's Annual Declaration of Past Activities (ADPA) or Combined Annual Declaration and Report. You must submit an amended declaration or report to BIS within 15 days of any change in the following information:

(1) Types of Schedule 2 chemicals produced, processed, or consumed;

(2) Quantities of Schedule 2 chemicals produced, processed, or consumed;

(3) Activities involving Schedule 2 chemicals (production, processing, consumption);

(4) End-use of Schedule 2 chemicals (e.g., additional end-use(s)); Start Printed Page 24945

(5) Product group codes for Schedule 2 chemicals produced, processed, or consumed;

(6) Production capacity for manufacturing a specific Schedule 2 chemical at particular plant site;

(7) Exports or imports (e.g., changes in the types of Schedule 2 chemicals exported or imported or in the quantity, recipients, or sources of such chemicals);

(8) Domestic transfers (e.g., changes in the types of Schedule 2 chemicals, types of destinations, or product group codes); and

(9) Addition of new plant(s) for the production, processing, or consumption of Schedule 2 chemicals.

(b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared plant sites, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report to BIS within 15 days of any change in the following export or import information:

(1) Types of Schedule 2 chemicals exported or imported (additional Schedule 2 chemicals);

(2) Quantities of Schedule 2 chemicals exported or imported;

(3) Destination(s) of Schedule 2 chemicals exported; and

(4) Source(s) of Schedule 2 chemicals imported.

(c) Changes to company and plant site information that must be maintained by BIS for the ADPA, Annual Declaration on Anticipated Activities (ADAA), and the Annual Report on Exports and Imports—(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information:

(i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;

(ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number(s), facsimile number(s) and e-mail address(es);

(iii) Company name (see paragraph (c)(2) of this section for other company changes);

(iv) Company mailing address;

(v) Plant site name;

(vi) Plant site owner, including telephone number, and facsimile number;

(vii) Plant site operator, including telephone number, and facsimile number;

(viii) Plant name;

(ix) Plant owner, including telephone number, and facsimile number; and

(x) Plant operator, including telephone number and facsimile number.

(2) Change in ownership of company, plant site, or plant. If you sold or purchased a declared plant site, plant, or trading company you must submit an amended declaration or report to BIS, either before the effective date of the change or within 30 days after the effective date of the change. The amended declaration or report must include the following information:

(i) Information that must be submitted to BIS by the company selling a declared plant site:

(A) Name of seller (i.e., name of the company selling a declared plant site);

(B) Name of the declared plant site and U.S. Code Number for that plant site;

(C) Name of purchaser (i.e., name of the new company/owner purchasing a declared plant site) and identity of contact person for the purchaser, if known;

(D) Date of ownership transfer or change;

(E) Additional (e.g., unique) details on the sale of the declared plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and

(F) Details regarding whether the new owner will submit the next declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.

(1) If the new owner is responsible for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site.

(2) If the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site, and, if at the time of transfer of ownership, the previous owner's activities are not above the declaration or reporting thresholds set forth in § 713.2(a)(1)(i)(A)(1) through (3) and § 713.3(b)(1)(i) through (iii) of the CWCR, respectively, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.

(3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration thresholds set forth in § 713.2(a)(1)(i)(A)(1) through (3) of the CWCR, BIS will return the declarations without action as set forth in § 713.6 of the CWCR.

(4) If part-year reports submitted by the previous owner and the new owner are not, when combined, above the thresholds in §§ 713.3(b)(1)(i) through (iii) of the CWCR, BIS will return the reports without action as set forth in § 713.6 of the CWCR.

(ii) Information that must be submitted to BIS by the company purchasing a declared plant site:

(A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);

(B) Mailing address of purchaser;

(C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;

(D) Name of inspection point(s) of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s) and e-mail address(es);

(E) Name of the declared plant site and U.S. Code Number for that plant site;

(F) Location of the declared plant site;

(G) Owner of the declared plant site, including telephone number, and facsimile number;

(H) Operator of the declared plant site, including telephone number, and facsimile number;

(I) Name of plant(s) where Schedule 2 activities exceed the applicable declaration threshold;

(J) Owner and operator of plant(s) where Schedule 2 activities exceed the applicable declaration threshold, including telephone numbers, and facsimile numbers;

(K) Location of the plant where Schedule 2 activities exceed the applicable declaration threshold; and

(L) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.

Note 1 to § 713.5(c):

You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is Start Printed Page 24946on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.

Note 2 to § 713.5(c):

You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared plant site or trading company.

Note 3 to § 713.5(c):

For ownership changes, the declared facility or trading company will maintain its original U.S. Code Number, unless the plant site or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.

(d) Inspection-related amendments. If, following the completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to §§ 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of BIS's post-inspection letter.

(e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non-substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report.

(f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either:

(1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or

(2) Both of the following:

(i) A new Certification Form; and

(ii) The specific forms required for the declaration or report type being amended (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the requirements of this section, to amend your declaration or report.

Declarations and reports returned without action by BIS.

If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action (RWA). However, BIS will maintain a copy of the RWA letter.

Deadlines for submission of Schedule 2 declarations, reports, and amendments.

Declarations, reports, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 713. Required declarations, reports, and amendments include:

(a) Annual declaration on past activities (production, processing, or consumption of Schedule 2 chemicals during the previous calendar year);

(b) Annual report on exports and imports of Schedule 2 chemicals by plant sites, trading companies, and other persons subject to the CWCR (during the previous calendar year);

(c) Combined declaration and report (production, processing, or consumption of Schedule 2 chemicals, as well as exports or imports of the same or different Schedule 2 chemicals, by a declared plant site during the previous calendar year);

(d) Annual declaration on anticipated activities (production, processing or consumption) involving Schedule 2 chemicals during the next calendar year;

(e) Declaration on Additionally Planned Activities (production, processing or consumption) involving Schedule 2 chemicals; and

(f) Amended declaration and report, including combined declaration and report.

Supplement No. 1 to Part 713.—Schedule 2 Chemicals

(CAS registry number)
A. Toxic chemicals:
(1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts(78-53-5)
(2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene(382-21-8)
(3) BZ: 3-Quinuclidinyl benzilate(6581-06-2)
B. Precursors:
(4) Chemicals, except for those listed in Schedule 1, containing a phosphorus atom to which is bonded one methyl, ethyl or propyl (normal or iso) group but not further carbon atoms, e.g. Methylphosphonyl dichloride(676-97-1)
Dimethyl methylphosphonate(756-79-6)
Exemption: Fonofos: O-Ethyl S-phenyl ethylphosphono-thiolothionate(944-22-9)
(5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides
(6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr or i-Pr)-phosphoramidates
(7) Arsenic trichloride(7784-34-1)
(8) 2,2-Diphenyl-2-hydroxyacetic acid(76-93-7)
(9) Quinuclidine-3-ol(1619-34-7)
(10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and corresponding protonated salts
(11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and corresponding protonated salts
Exemptions: N,N-Dimethylaminoethanol and corresponding protonated salts(108-01-0)
N,N-Diethylaminoethanol and corresponding protonated salts(100-37-8)
(12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and corresponding protonated salts
(13) Thiodiglycol: Bis(2-hydroxyethyl)sulfide(111-48-8)
(14) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol(464-07-3)
Notes to Supplement No. 1
Note 1: Note that the following Schedule 2 chemicals are controlled for export purposes by the Directorate of Defense Trade Controls of the Department of State under the International Traffic in Arms Regulations (22 CFR parts 120 through 130): Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (78-53-5); BZ: 3-Quinuclidinyl benzilate 6581-06-2); and Methylphosphonyl dichloride (676-97-1). Start Printed Page 24947
Note 2: All Schedule 2 chemicals not listed in Note 1 to this Supplement are controlled for export purposes under the Export Administration Regulations (see part 774 of the EAR, the Commerce Control List).

Supplement No. 2 to Part 713.—Deadlines for Submission of Schedule 2 Declarations, Reports, and Amendments

Declarations and reportsApplicable formsDue dates
Annual Declaration on Past Activities (previous calendar year)—Declared plant site (production, processing, or consumption)Certification, 2-1, 2-2, 2-3, 2-3A, 2-3B (if also exported or imported), A (as appropriate), B (optional)February 28 of the year following any calendar year in which the production, processing, or consumption of a Schedule 2 chemical exceeded the applicable declaration thresholds in § 713.2(a)(1)(i) of the CWCR.
Annual Report on Exports and Imports (previous calendar year)—Plant site, trading company, other personsCertification, 2-1, 2-3B, A (as appropriate), B (optional)February 28 of the year following any calendar year in which exports or imports of a Schedule 2 chemical by a plant site, trading company, or other person subject to the CWCR (as described in § 713.3(a)(2) of the CWCR) exceeded the applicable thresholds in § 713.3(b)(1) of the CWCR.
Combined Declaration & Report—Declared plant site (production, processing, or consumption; exports and imports)Certification, 2-1, 2-2, 2-3, 2-3A, 2-3B, A (as appropriate), B (optional)February 28 of the year following any calendar year in which the production, processing, or consumption of a Schedule 2 chemical and the export or import of the same or a different Schedule 2 chemical by a declared plant site exceeded the applicable thresholds in §§ 713.2(a)(1)(i) and 713.3(b)(1), respectively, of the CWCR.
Annual Declaration on Anticipated Activities (next calendar year)Certification, 2-1, 2-2, 2-3, 2-3A, 2-3C, A (as appropriate), B (optional)September 3 of the year prior to any calendar year in which Schedule 2 activities are anticipated to occur.
Declaration on Additionally Planned Activities (production, processing and consumption)Certification, 2-1, 2-2, 2-3, 2-3A, 2-3C, A (as appropriate), B (optional)15 calendar days before the additionally planned activity begins.
Amended DeclarationCertification, 2-1, 2-2, 2-3 2-3A, 2-3B (if also exported or imported), A (as appropriate), B (optional)
—Declaration information—15 calendar days after change in information.
—Company information—30 calendar days after change in information.
—Post-inspection letter—45 calendar days after receipt of letter.
Amended ReportCertification, 2-1, 2-3B, A (as appropriate), B (optional)—15 calendar days after change in information.
Amended Combined Declaration & ReportCertification, 2-1, 2-2, 2-3, 2-3A, 2-3B, A (as appropriate), B (optional)—15 calendar days after change in information.
End Part Start Part

PART 714—ACTIVITIES INVOLVING SCHEDULE 3 CHEMICALS

714.1
Annual declaration requirements for plant sites that produce a Schedule 3 chemical in excess of 30 metric tons.
714.2
Annual reporting requirements for exports and imports in excess of 30 metric tons of Schedule 3 chemicals.
714.3
Advance declaration requirements for additionally planned production of Schedule 3 chemicals.
714.4
Amended declaration or report.
714.5
Declarations and reports returned without action by BIS.
714.6
Deadlines for submission of Schedule 3 declarations, reports, and amendments.

Supplement No. 1 to Part 714—Schedule 3 Chemicals

Supplement No. 2 to Part 714—Deadlines for Submission of Schedule 3 Declarations, Reports, and Amendments

Start Authority

Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Annual declaration requirements for plant sites that produce a Schedule 3 chemical in excess of 30 metric tons.

(a) Declaration of production of Schedule 3 chemicals for purposes not prohibited by the CWC.—(1) Production quantities that trigger the declaration requirement. You must complete the appropriate forms specified in paragraph (b) of this section if you have produced or anticipate producing a Schedule 3 chemical (see Supplement No. 1 to this part) as follows:

(i) Annual declaration on past activities. You produced at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year.

(ii) Annual declaration on anticipated activities. You anticipate that you will produce at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical in the next calendar year.

(2) Schedule 3 chemical production. (i) For the purpose of determining Schedule 3 production, you must include all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.

(ii) For the purpose of determining if a Schedule 3 chemical is subject to declaration, you must declare an intermediate Schedule 3 chemical, but not a transient intermediate Schedule 3 chemical.

(3) Mixtures containing a Schedule 3 chemical. (i) When you must count the quantity of a Schedule 3 chemical in a Start Printed Page 24948mixture for declaration purposes. The quantity of each Schedule 3 chemical contained in a mixture must be counted for declaration purposes only if the concentration of each Schedule 3 chemical in the mixture is 80% or more by volume or by weight, whichever yields the lesser percent.

(ii) How to count the amount of a Schedule 3 chemical in a mixture. If your mixture contains 80% or more concentration of a Schedule 3 chemical, you must count only the amount (weight) of the Schedule 3 chemical in the mixture, not the total weight of the mixture.

(b) Types of declaration forms to be used.—(1) Annual declaration on past activities. You must complete the Certification Form and Forms 3-1, 3-2, 3-3, and Form A if one or more plants on your plant site produced in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year. Form B is optional.

(2) Annual declaration on anticipated activities. You must complete the Certification Form, and Forms 3-1 and 3-3 if you anticipate that you will produce at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical in the next calendar year.

(c) Quantities to be declared. (1) Production of a Schedule 3 chemical in excess of 30 metric tons. If your plant site is subject to the declaration requirements of paragraph (a) of this section, you must declare the range within which the production at your plant site falls (30 to 200 metric tons, 200 to 1,000 metric tons, etc.) as specified on Form 3-3. When specifying the range of production for your plant site, you must aggregate the production quantities of all plants on the plant site that produced the Schedule 3 chemical in amounts greater than 30 metric tons. Do not aggregate amounts of production from plants on the plant site that did not individually produce a Schedule 3 chemical in amounts greater than 30 metric tons. You must complete a separate Form 3-3 for each Schedule 3 chemical for which production at your plant site exceeds 30 metric tons.

(2) Rounding. To determine the production range into which your plant site falls, add all the production of the declared Schedule 3 chemical during the calendar year from all plants on your plant site that produced the Schedule 3 chemical in amounts exceeding 30 metric tons, and round to the nearest ten metric tons.

(d) “Declared” Schedule 3 plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a “declared” Schedule 3 plant site.

(e) Routine inspections of declared Schedule 3 plant sites. A “declared” Schedule 3 plant site is subject to routine inspection by the Organization for the Prohibition of Chemical Weapons (see part 716 of the CWCR) if:

(1) The declared plants on your plant site produced in excess of 200 metric tons aggregate of any Schedule 3 chemical during the previous calendar year; or

(2) You anticipate that the declared plants on your plant site will produce in excess of 200 metric tons aggregate of any Schedule 3 chemical during the next calendar year.

Annual reporting requirements for exports and imports in excess of 30 metric tons of Schedule 3 chemicals.

(a) Any person subject to the CWCR that exported from or imported into the United States in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year has a reporting requirement under this section.

(1) Annual report on exports and imports. Declared plant sites, undeclared plant sites, trading companies, or any other person subject to the CWCR that exported from or imported into the United States in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year must submit an annual report on exports and imports.

Note 1 to § 714.2(a)(1):

Declared and undeclared plant sites must count, for reporting purposes, all exports from and imports to the entire plant site, not only from or to individual plants on the plant site.

Note 2 to § 714.2(a)(1):

The U.S. Government will not submit to the OPCW company-specific information relating to the export or import of Schedule 3 chemicals contained in reports. The U.S. Government will add all export and import information contained in reports to establish the U.S. national aggregate declaration on exports and imports.

(2) Mixtures containing a Schedule 3 chemical. The quantity of a Schedule 3 chemical contained in a mixture must be counted for reporting an export or import only if the concentration of the Schedule 3 chemical in the mixture is 80% or more by volume or by weight, whichever yields the lesser percent. For reporting purposes, only count the weight of the Schedule 3 chemical in the mixture, not the entire weight of the mixture.

Note to § 714.2(a)(2):

The “80% and above” mixtures rule applies only for reporting purposes. This rule does not apply for purposes of determining whether the export of your mixture to a non-State Party requires an End-Use Certificate or for determining whether you need an export license from BIS (see 15 CFR 742.2, 742.18 and 745.2 of the Export Administration Regulations) or from the Department of State (see the International Traffic in Arms Regulations (22 CFR parts 120 through 130)).

(b) Types of forms to be used.—(1) Declared Schedule 3 plant sites. (i) If your plant site is declared for production of a Schedule 3 chemical (and has completed questions 3-3.1 and 3-3.2 on Form 3-3) and you also exported from or imported to your plant site in excess of 30 metric tons of that same Schedule 3 chemical, you must report the export or import by either:

(A) Completing question 3-3.3 on Form 3-3 on your declaration for that same Schedule 3 chemical; or

(B) Submitting, separately from your declaration, a Certification Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional.

(ii) If your plant site is declared for production of a Schedule 3 chemical and you exported or imported in excess of 30 metric tons of a different Schedule 3 chemical, you must report the export or import by either:

(A) Submitting, along with your declaration, a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional; or

(B) Submitting, separately from your declaration, a Certification Form, Form 3-1 and a Form 3.3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional.

(2) If you are an undeclared plant site, a trading company, or any other person subject to the CWCR, you must submit a Certification Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional.

(c) Quantities to be reported—(1) Calculations. If you exported from or imported to your plant site or trading company more than 30 metric tons of a Schedule 3 chemical in the previous calendar year, you must report all exports and imports of that chemical by country of destination or country of origin, respectively, and indicate the total amount exported to or imported from each country.

(2) Rounding. For purposes of reporting exports and imports of a Schedule 3 chemical, you must total all exports and imports per calendar year Start Printed Page 24949per recipient or source and then round to the nearest 0.1 metric tons.

Note to § 714.2(c):

Under the Convention, the United States is obligated to provide the OPCW a national aggregate annual declaration of the quantities of each Schedule 3 chemical exported and imported, with a quantitative breakdown for each country or destination involved. The U.S. Government will not submit your company-specific information relating to the export or import of a Schedule 3 chemical reported under this § 714.2. The U.S. Government will add all export and import information submitted by various facilities under this section to produce a national aggregate annual declaration of destination-by-destination trade for each Schedule 3 chemical.

Advance declaration requirements for additionally planned production of Schedule 3 chemicals.

(a) Declaration requirements. (1) You must declare additionally planned production of Schedule 3 chemicals after the annual declaration on anticipated activities for the next calendar year has been delivered to BIS if:

(i) You plan that a previously undeclared plant on your plant site under § 714.1(a)(1)(ii) of the CWCR will produce a Schedule 3 chemical above the declaration threshold;

(ii) You plan to produce at a plant declared under § 714.1(a)(1)(ii) of the CWCR an additional Schedule 3 chemical above the declaration threshold;

(iii) You plan to increase the production of a Schedule 3 chemical by declared plants on your plant site from the amount exceeding the applicable declaration threshold to an amount exceeding the applicable inspection threshold (see § 716.1(b)(3) of the CWCR); or

(iv) You plan to increase the aggregate production of a Schedule 3 chemical at a declared plant site to an amount above the upper limit of the range previously declared under § 714.1(a)(1)(ii) of the CWCR.

(2) If you must submit a declaration on additionally planned activities because you plan to engage in any of the activities listed in paragraphs (a)(1)(i) through (iv) of this section, you also should declare any changes to the anticipated purposes of production or product group codes. You do not have to submit a declaration on additionally planned activities if you are only changing your purposes of production or product group codes.

(b) Declaration forms to be used. If you are required to declare additionally planned activities pursuant to paragraph (a) of this section, you must complete the Certification Form and Forms 3-1, 3-2, and 3-3 as appropriate. Such forms are due to BIS at least 15 days in advance of the beginning of the additional or new activity.

Amended declaration or report.

In order for BIS to maintain accurate information on previously submitted plant site declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or reporting requirements, amended declarations or reports will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities and annual reports on exports and imports submitted for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report.

(a) Changes to information that directly affects a declared plant site's Annual Declaration of Past Activities (ADPA) or Combined Annual Declaration or Report which was previously submitted to BIS. You must submit an amended declaration or report to BIS within 15 days of determining that there has been a change in any of the following information that you have previously declared or reported:

(1) Types of Schedule 3 chemicals produced (e.g., production of additional Schedule 3 chemicals);

(2) Production range (e.g., from 30 to 200 metric tons to above 200 to 1000 metric tons) of Schedule 3 chemicals;

(3) Purpose of Schedule 3 chemical production (e.g., additional end-uses); or

(4) Addition of new plant(s) for production of Schedule 3 chemicals.

(b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared plant sites, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report to BIS within 15 days of any change in the following export or import information:

(1) Types of Schedule 3 chemicals exported or imported (additional Schedule 3 chemicals);

(2) Quantities of Schedule 3 chemicals exported or imported;

(3) Destination(s) of Schedule 3 chemicals exported; and

(4) Source(s) of Schedule 3 chemicals imported.

(c) Changes to company and plant site information submitted in the ADPA, the Annual Declaration of Anticipated Activities, and the Annual Report on Exports and Imports—(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information:

(i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;

(ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number, and facsimile number, and e-mail address(es);

(iii) Company name (see 714.4(c)(2) for other company changes);

(iv) Company mailing address;

(v) Plant site name;

(vi) Plant site owner, including telephone number and facsimile number;

(vii) Plant site operator, including telephone number and facsimile number;

(viii) Plant name;

(xi) Plant owner, including telephone number and facsimile number; and

(x) Plant operator, including telephone number and facsimile number.

(2) Change in ownership of company, plant site, or plant. If you sold or purchased a declared company, plant site or plant, you must submit an amended declaration or report to BIS, either before the effective date of the change or within 30 days after the effective date of the change. The amended declaration or report must include the following information.

(i) Information that must be submitted to BIS by a company selling a declared plant site:

(A) Name of seller (i.e., name of the company selling a declared plant site);

(B) Name of declared plant site and U.S. Code Number for that plant site;

(C) Name of purchaser (i.e., name of company purchasing a declared plant site) and identity of the new owner and contact person for the purchaser, if known;

(D) Date of ownership transfer;

(E) Additional (e.g., unique) details on the sale of the plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and

(F) Details regarding whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and the new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.

(1) If the new owner is responsible for submitting the declaration or report for Start Printed Page 24950the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site or trading company.

(2) If the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company, and, at the time of transfer of ownership, the previous owner's activities are not above the declaration or reporting thresholds set forth in § 714.1(a)(1) and § 714.2(a)(1) of the CWCR, respectively, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.

(3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in § 714.1(a)(1) of the CWCR, BIS will return the declarations without action as set forth in § 714.5 of the CWCR.

(4) If part-year reports are not, when combined, above the reporting threshold set forth in § 714.2(a)(1) of the CWCR, BIS will return the reports without action as set forth in § 714.5 of the CWCR.

(ii) Information that must be submitted to BIS by the company purchasing a declared plant site:

(A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);

(B) Mailing address of purchaser;

(C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;

(D) Name(s) of inspection point(s)s of contact (I-POC) for the purchaser, including telephone number, facsimile number, and e-mail address(es);

(E) Name of the declared plant site and U.S. Code Number for that plant site;

(F) Location of the declared plant site;

(G) Operator of the declared plant site, including telephone number, and facsimile number;

(H) Name of plant where Schedule 3 production exceeds the declaration threshold;

(I) Owner of plant where Schedule 3 production exceeds the declaration threshold;

(J) Operator of plant where Schedule 3 production exceeds the declaration threshold; and

(K) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.

Note 1 to § 714.4(c):

You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.

Note 2 to § 714.4(c):

You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared plant site or trading company.

Note 3 to § 714.4(c):

For ownership changes, the declared plant site or trading company will maintain its original U.S. Code Number, unless the plant site or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.

(d) Inspection-related amendments. If, following the completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information to be amended pursuant to §§ 716.10 and 717.5(b) of the CWCR. Amended declarations must be submitted to BIS no later than 45 days following your receipt of BIS's post-inspection letter.

(e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non-substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report.

(f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either:

(1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or

(2) Both of the following:

(i) A new Certification Form; and

(ii) The specific forms required for the declaration or report type being amended (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the requirements of this section, to amend your declaration or report.

Declarations and reports returned without action by BIS.

If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action. However, BIS will maintain a copy of the RWA letter.

Deadlines for submission of Schedule 3 declarations, reports, and amendments.

Declarations, reports, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 714 of the CWCR. Required declarations, reports, and amendments include:

(a) Annual declaration on past activities (production of Schedule 3 chemicals during the previous calendar year);

(b) Annual report on exports and imports of Schedule 3 chemicals from plant sites, trading companies, and other persons subject to the CWCR (during the previous calendar year);

(c) Combined declaration and report (production of Schedule 3 chemicals, as well as exports or imports of the same or different Schedule 3 chemicals, by a declared plant site during the previous calendar year);

(d) Annual declaration on anticipated activities (anticipated production of Schedule 3 chemicals during the next calendar year);

(e) Declaration on Additionally Planned Activities (additionally planned production of Schedule 3 chemicals); and

(f) Amended declaration and report, including combined declaration and report.Start Printed Page 24951

Supplement No. 1 to Part 714.—Schedule 3 Chemicals

(CAS registry number)
A. Toxic chemicals:
(1) Phosgene: Carbonyl dichloride(75-44-5)
(2) Cyanogen chloride(506-77-4)
(3) Hydrogen cyanide(74-90-8)
(4) Chloropicrin: Trichloronitromethane(76-06-2)
B. Precursors:
(5) Phosphorus oxychloride(10025-87-3)
(6) Phosphorus trichloride(7719-12-2)
(7) Phosphorus pentachloride(10026-13-8)
(8) Trimethyl phosphite(121-45-9)
(9) Triethyl phosphite(122-52-1)
(10) Dimethyl phosphite(868-85-9)
(11) Diethyl phosphite(762-04-9)
(12) Sulfur monochloride(10025-67-9)
(13) Sulfur dichloride(10545-99-0)
(14) Thionyl chloride(7719-09-7)
(15) Ethyldiethanolamine(139-87-7)
(16) Methyldiethanolamine(105-59-9)
(17) Triethanolamine(102-71-6)
Note to Supplement No. 1: Refer to Supplement No. 1 to part 774 of the Export Administration Regulations (the Commerce Control List), ECCNs 1C350 and 1C355, for export controls related to Schedule 3 chemicals.

Supplement No. 2 to Part 714.—Deadlines for Submission of Schedule 3 Declarations, Reports, and Amendments

DeclarationsApplicable formsDue dates
Annual Declaration on Past Activities (previous calendar year)—Declared plant site (production)Certification, 3-1, 3-2, 3-3 (if also exported or imported), A (as appropriate), B (optional)February 28 of the year following any calendar year in which the production of a Schedule 3 chemical exceeded the declaration threshold in § 714.1(a)(1)(i) of the CWCR.
Annual Report on Exports and Imports (previous calendar year)—Plant site, trading company, other personsCertification, 3-1, 3-3.3 and 3-3.4, A (as appropriate), B (optional)February 28 of the year following any calendar year in which exports or imports of a Schedule 3 chemical by a plant site, trading company, or other person subject to the CWCR (as described in § 714.2(a) of the CWCR) exceeded the threshold in § 714.2(a) of the CWCR.
Combined Declaration & ReportCertification, 3-1, 3-2, and 3-3, A (as appropriate), B (optional)February 28 of the year following any calendar year in which the production of a Schedule 3 chemical and the export or import of the same or a different Schedule 3 chemical by a declared plant site exceeded the applicable thresholds in §§ 714.1(a)(1)(i) and 714.2(a), respectively, of the CWCR.
Annual Declaration on Anticipated Activities (Production) (next calendar year)Certification, 3-1, 3-2, 3-3.2, A (as appropriate), B (optional)September 3 of the year prior to any calendar year in which Schedule 3 production is anticipated to occur.
Declaration on Additionally Planned ActivitiesCertification, 3-1, 3-3.1 and 3-3.2, A (as appropriate), B (optional)15 calendar days before the additionally planned activity begins.
Amended DeclarationCertification, 3-1, 3-2, 3-3
—Declaration information—15 calendar days after change in information.
—Company information—30 calendar days after change in information.
—Post-inspection letter—45 calendar days after receipt of letter.
Amended ReportCertification, 3-1, 3-2, 3-3, A (as appropriate), B (optional)—15 calendar days after change in information.
Amended Combined Declaration & ReportCertification, 3-1, 3-2, 3-3, A (as appropriate), B (optional)—15 calendar days after change in information.
End Part Start Part

PART 715—ACTIVITIES INVOLVING UNSCHEDULED DISCRETE ORGANIC CHEMICALS (UDOCs)

715.1
Annual declaration requirements for production by synthesis of unscheduled discrete organic chemicals (UDOCs).
715.2
Amended declaration.
715.3
Declarations returned without action by BIS.
715.4
Deadlines for submitting UDOC declarations, no changes authorization forms, and amendments.

Supplement No. 1 to Part 715—Definition of an Unscheduled Discrete Organic Chemical Start Printed Page 24952

Supplement No. 2 to Part 715—Examples of Unscheduled Discrete Organic Chemicals (UDOCS) and UDOC Production

Supplement No. 3 to Part 715—Deadlines for Submission of Declarations, No Changes Authorization Forms, and Amendments for Unscheduled Discrete Organic Chemical (UDOC) Facilities

Start Authority

Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Annual declaration requirements for production by synthesis of unscheduled discrete organic chemicals (UDOCs).

(a) Declaration of production by synthesis of UDOCs for purposes not prohibited by the CWC.—(1) Production quantities that trigger the declaration requirement. See § 711.6 of the CWCR for information on obtaining the forms you will need to declare production of unscheduled discrete organic chemicals. You must complete the forms specified in paragraph (b) of this section if your plant site produced by synthesis:

(i) In excess of 200 metric tons aggregate of all UDOCs (including all UDOCs containing the elements phosphorus, sulfur or fluorine, referred to as “PSF chemicals”) during the previous calendar year; or

(ii) In excess of 30 metric tons of an individual PSF chemical at one or more plants at your plant site during the previous calendar year.

Note to § 715.1(a)(1)(ii):

In calculating the aggregate production quantity of each individual PSF chemical produced by a PSF plant, do not include production of a PSF chemical that was produced in quantities less than 30 metric tons. Include only production quantities from those PSF plants that produced more than 30 metric tons of an individual PSF chemical.

(2) UDOCs subject to declaration requirements under this part. (i) UDOCs subject to declaration requirements under this part are those produced by synthesis that have been isolated for:

(A) Use; or

(B) Sale as a specific end product.

(ii) Exemptions. (A) Polymers and oligomers consisting of two or more repeating units;

(B) Chemicals and chemical mixtures produced through a biological or biomediated process;

(C) Products from the refining of crude oil, including sulfur-containing crude oil;

(D) Metal carbides (i.e., chemicals consisting only of metal and carbon); and

(E) UDOCs produced by synthesis that are ingredients or by-products in foods designed for consumption by humans and/or animals.

Note to § 715.1(a)(2):

See Supplement No. 2 to this part 715 for examples of UDOCs subject to the declaration requirements of this part, and for examples of activities that are not considered production by synthesis.

(3) Exemptions for UDOC plant sites. UDOC plant sites that exclusively produced hydrocarbons or explosives are exempt from UDOC declaration requirements. For the purposes of this part, the following definitions apply for hydrocarbons and explosives:

(i) Hydrocarbon means any organic compound that contains only carbon and hydrogen; and

(ii) Explosive means a chemical (or a mixture of chemicals) that is included in Class 1 of the United Nations Organization hazard classification system.

(b) Types of declaration forms to be used.—(1) Annual declaration on past activities. You must complete the Certification Form and Form UDOC (consisting of two pages), unless there are no changes from the previous year's declaration and you submit a No Changes Authorization Form pursuant to paragraph (b)(2) of this section. Attach Form A as appropriate; Form B is optional.

(2) No Changes Authorization Form. You may complete the No Changes Authorization Form if there are no updates or changes to any information (except the certifying official and dates signed and submitted) in your plant site's previously submitted annual declaration on past activities. Your plant site's activities will be declared to the OPCW and subject to inspection, if applicable, based upon the data reported in the most recent UDOC Declaration that you submitted to BIS.

Note to § 715.1(b)(2):

If, after submitting the No Changes Authorization Form, you have changes to information, you must submit a complete amendment to the annual declaration on past activities. See § 715.2 of the CWCR.

(c) “Declared” UDOC plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a “declared” UDOC plant site.

(d) Routine inspections of declared UDOC plant sites. A “declared” UDOC plant site is subject to routine inspection by the Organization for the Prohibition of Chemical Weapons (see part 716 of the CWCR) if it produced by synthesis more than 200 metric tons aggregate of UDOCs during the previous calendar year.

Amended declaration.

In order for BIS to maintain accurate information on previously submitted plant site declarations, including current information necessary to facilitate inspection notifications and activities or to communicate declaration requirements, amended declarations will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities submitted for the previous calendar year, unless specified otherwise in a final inspection report.

(a) Changes to information that directly affects a declared plant site's Annual Declaration of Past Activities (ADPA) which was previously submitted to BIS. You must submit an amended declaration to BIS within 15 days of any change in the following information:

(1) Product group codes for UDOCs produced in quantities exceeding the applicable declaration threshold specified in § 715.1(a)(1) of the CWCR;

(2) Approximate number of plants at the declared plant site that produced any amount of UDOCs (including all PSF chemicals);

(3) Aggregate amount of production (by production range) of UDOCs produced by all plants at the declared plant site;

(4) Exact number of plants at the declared plant site that individually produced more than 30 metric tons of a single PSF chemical; and

(5) Production range of each plant at the declared plant site that individually produced more than 30 metric tons of a single PSF chemical.

(b) Changes to company and plant site information submitted in the ADPA that must be maintained by BIS.—(1) Internal company changes. You must submit an amended declaration to BIS within 30 days of any change in the following information:

(i) Name of declaration point of contact (D-POC), including telephone number, facsimile number, and e-mail address;

(ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number, facsimile number(s) and e-mail address(es);

(iii) Company name (see 715.2(b)(2) for other company changes);

(iv) Company mailing address;

(v) Plant site name;

(vi) Plant site owner, including telephone number and facsimile number; and

(vii) Plant site operator, including telephone number and facsimile number.

(2) Change in ownership of company or plant site. If you sold or purchased a declared plant site, you must submit an amended declaration to BIS, either before the effective date of the change or within 30 days after the effective date of Start Printed Page 24953the change. The amended declaration must include the following information.

(i) Information that must be submitted to BIS by the company selling a declared plant site:

(A) Name of seller (i.e., name of company selling a declared plant site);

(B) Name of declared plant site name and U.S. Code Number for that plant site;

(C) Name of purchaser (i.e., name of new company purchasing a declared plant site) and identity of contact person for the purchaser, if known;

(D) Date of ownership transfer or change;

(E) Additional details on the sale of the declared plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and

(F) Details regarding whether the new owner will submit the declaration for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the plant site.

(1) If the new owner is responsible for submitting the declaration for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site.

(2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the plant site, and, if at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in § 715.1(a)(1) of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.

(3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in § 715.1(a)(1) of the CWCR, BIS will return the declarations without action as set forth in § 715.3 of the CWCR.

(ii) Information that must be submitted to BIS by the company purchasing a declared plant site:

(A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);

(B) Mailing address of purchaser;

(C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;

(D) Name(s) of inspection point(s) of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s), and e-mail address(es);

(E) Name of the declared plant site and U.S. Code Number for that plant site;

(F) Location of the declared plant site;

(G) Name of plant site where the production of UDOCs exceeds the applicable declaration threshold;

(H) Owner of plant site where the production of UDOCs exceeds the applicable declaration threshold, including telephone number and facsimile number;

(I) Operator of plant site where the production of UDOCs exceeds the applicable declaration threshold, including telephone number and facsimile number; and

(J) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or report for the periods of the calendar year during which each owned the plant site.

Note 1 to § 715.2(b):

You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.

Note 2 to § 715.2(b):

You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration, use Form B to address details regarding the sale of the declared plant site.

Note 3 to § 715.2(b):

For ownership changes, the declared plant site will maintain its original U.S. Code Number, unless the plant site is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.

(c) Inspection-related amendments. If, following completion of an inspection (see part 716 or 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to §§ 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of BIS's post-inspection letter.

(d) Non-substantive changes. If, subsequent to the submission of your declaration to BIS, you discover one or more non-substantive typographical errors in your declaration, you are not required to submit an amended declaration to BIS. Instead, you may correct these errors in a subsequent declaration.

(e) Documentation required for amended declarations. If you are required to submit an amended declaration to BIS pursuant to paragraph (a), (b), or (c) of this section, you must submit either:

(1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration; or

(2) Both of the following:

(i) A new Certification Form; and

(ii) The specific form required for the declaration containing the corrected information required, in accordance with the requirements of this section, to amend your declaration.

Declarations returned without action by BIS.

If you submit a declaration and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration that is returned without action. However, BIS will maintain a copy of the RWA letter.

Deadlines for submitting UDOC declarations, no changes authorization forms, and amendments.

Declarations, no changes authorization forms, and amendments required under this part must be postmarked by the appropriate dates identified in Supplement No. 3 to this part 715 of the CWCR. Required documents under this part include:

(a) Annual Declaration on Past Activities (UDOC production during the previous calendar year);

(b) No Changes Authorization Form (may be completed and submitted to BIS when there are no changes to any information in your plant site's previously submitted annual declaration on past activities, except the certifying official and the dates signed and submitted); and

(c) Amended declaration. Start Printed Page 24954

Supplement No. 1 to Part 715—Definition of an Unscheduled Discrete Organic Chemical

Unscheduled discrete organic chemical means any chemical: (1) Belonging to the class of chemical compounds consisting of all compounds of carbon except for its oxides, sulfides and metal carbonates identifiable by chemical name, by structural formula, if known, and by Chemical Abstract Service registry number, if assigned; and (2) that is not contained in the Schedules of Chemicals (see Supplements No. 1 to parts 712 through 714 of the CWCR). Unscheduled discrete organic chemicals subject to declaration under this part are those produced by synthesis that are isolated for use or sale as a specific end-product.

Note:

Carbon oxides consist of chemical compounds that contain only the elements carbon and oxygen and have the chemical formula Cx Oy, where x and y denote integers. The two most common carbon oxides are carbon monoxide (CO) and carbon dioxide (CO2). Carbon sulfides consist of chemical compounds that contain only the elements carbon and sulfur, and have the chemical formula Ca Sb, where a and b denote integers. The most common carbon sulfide is carbon disulfide (CS2). Metal carbonates consist of chemical compounds that contain a metal (i.e., the Group I Alkalis, Groups II Alkaline Earths, the Transition Metals, or the elements aluminum, gallium, indium, thallium, tin, lead, bismuth or polonium), and the elements carbon and oxygen. Metal carbonates have the chemical formula Md (CO3)e, where d and e denote integers and M represents a metal. Common metal carbonates are sodium carbonate (Na2 CO3) and calcium carbonate (Ca CO3). In addition, metal carbides or other compounds consisting of only a metal, as described in this Note, and carbon (e.g., calcium carbide (Ca C2)), are exempt from declaration requirements (see § 715.1(a)(2)(ii)(D) of the CWCR).

Supplement No. 2 to Part 715—Examples of Unscheduled Discrete Organic Chemicals (UDOCs) and UDOC Production

(1) Examples of UDOCs not subject to declaration include:

(i) UDOCs produced coincidentally as by-products that are not isolated for use or sale as a specific end product, and are routed to, or escape from, the waste stream of a stack, incinerator, or waste treatment system or any other waste stream;

(ii) UDOCs, contained in mixtures, which are produced coincidentally and not isolated for use or sale as a specific end-product;

(iii) UDOCs produced by recycling (i.e., involving one of the processes listed in paragraph (3) of this supplement) of previously declared UDOCs;

(iv) UDOCs produced by the mixing (i.e., the process of combining or blending into one mass) of previously declared UDOCs; and

(v) UDOCs that are intermediates and that are used in a single or multi-step process to produce another declared UDOC.

(2) Examples of UDOCs that you must declare under part 715 of the CWCR include, but are not limited to, the following, unless they are not isolated for use or sale as a specific end product:

(i) Acetophenone (CAS #98-86-2);

(ii) 6-Chloro-2-methyl aniline (CAS #87-63-8);

(iii) 2-Amino-3-hydroxybenzoic acid (CAS #548-93-6); and

(iv) Acetone (CAS #67-64-1).

(3) Examples of activities that are not considered “production by synthesis” under part 715 of the CWCR, which means the end products resulting from such activities would not be declared under part 715, are as follows:

(i) Fermentation;

(ii) Extraction;

(iii) Purification;

(iv) Distillation; and

(v) Filtration.

Supplement No. 3 to Part 715.—Deadlines for Submission of Declarations, No Changes Authorization Forms, and Amendments for Unscheduled Discrete Organic Chemical (UDOC) Facilities

DeclarationsApplicable formsDue dates
Annual Declaration on Past Activities (previous calendar year)—Declared plant siteCertification, UDOC, A (as appropriate), B (optional)February 28 of the year following any calendar year in which the production of UDOCs exceeded the applicable declaration threshold in § 715.1(a)(1) of the CWCR.
No Changes Authorization Form (declaration required, but no changes to data contained in previously submitted annual declaration on past activities (previous calendar year)—Declared plant siteNo Changes Authorization FormFebruary 28 of the year following any calendar year in which the production of UDOCs exceeded the applicable declaration threshold in § 715.1(a)(1) of the CWCR.
Amended DeclarationCertification, UDOC, A (as appropriate), B (optional)
—Declaration information—15 calendar days after change in information.
—Company information—30 calendar days after change in information.
—Post-inspection letter—45 calendar days after receipt of letter.
End Part Start Part

PART 716—INITIAL AND ROUTINE INSPECTIONS OF DECLARED FACILITIES

716.1
General information on the conduct of initial and routine inspections.
716.2
Purposes and types of inspections of declared facilities.
716.3
Consent to inspections; warrants for inspections.
716.4
Scope and conduct of inspections.
716.5
Notification, duration and frequency of inspections.
716.6
Facility agreements.
716.7
Samples.
716.8
On-site monitoring of Schedule 1 facilities.
716.9
Report of inspection-related costs.
716.10
Post-inspection activities.

Supplement No. 1 to Part 716—Notification, Duration, and Frequency of Inspections

Supplement No. 2 to Part 716—[Reserved]

Supplement No. 3 to Part 716—[Reserved]

Start Authority

Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
General information on the conduct of initial and routine inspections.

This part provides general information about the conduct of initial and routine inspections of declared facilities subject to inspection under CWC Verification Annex Part VI(E), Part VII(B), Part VIII(B) and Part IX(B). See part 717 of the CWCR for provisions concerning challenge inspections.

(a) Overview. Each State Party to the CWC, including the United States, has agreed to allow certain inspections of declared facilities by inspection teams employed by the Organization for the Prohibition of Chemical Weapons (OPCW) to ensure that activities are consistent with obligations under the Convention. BIS is responsible for leading, hosting and escorting inspections of all facilities subject to the provisions of the CWCR (see § 710.2 of the CWCR). Start Printed Page 24955

(b) Declared facilities subject to initial and routine inspections—(1) Schedule 1 facilities. (i) Your declared facility is subject to inspection if it produced in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year or anticipates producing in excess of 100 grams aggregate of Schedule 1 chemicals during the next calendar year.

(ii) If you are a new Schedule 1 production facility pursuant to § 712.4 of the CWCR, your facility is subject to an initial inspection within 200 days of submitting an initial declaration.

Note to § 716.1(b)(1):

All Schedule 1 facilities submitting a declaration are subject to inspection.

(2) Schedule 2 plant sites—(i) Inspection thresholds for Schedule 2 plant sites. Your declared plant site is subject to inspection if at least one plant on your plant site produced, processed or consumed, in any of the three previous calendar years, or you anticipate that at least one plant on your plant site will produce, process or consume in the next calendar year, any Schedule 2 chemical in excess of the following:

(A) 10 kg of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule 2, Part A, paragraph 3 in Supplement No. 1 to part 713 of the CWCR);

(B) 1 metric ton of chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene or any chemical belonging to the Amiton family (see Schedule 2, Part A, paragraphs 1 and 2 in Supplement No. 1 to part 713 of the CWCR); or

(C) 10 metric tons of any chemical listed in Schedule 2, Part B (see Supplement No. 1 to part 713 of the CWCR).

(ii) Initial inspection for new Schedule 2 plant sites. Your declared plant site is subject to an initial inspection within the first year after submitting a declaration, if at least one plant on your plant site produced, processed or consumed in any of the three previous years, or you anticipate that at least one plant on your plant site will produce, process or consume in the next calendar year, any Schedule 2 chemical in excess of the threshold quantities set forth in paragraphs (b)(2)(i)(A) through (C) of this section.

Note to § 716.1(b)(2):

The applicable inspection threshold for Schedule 2 plant sites is ten times higher than the applicable declaration threshold. Only declared plant sites, comprising at least one declared plant that exceeds the applicable inspection threshold, are subject to inspection.

(3) Schedule 3 plant sites. Your declared plant site is subject to inspection if the declared plants on your plant site produced during the previous calendar year, or you anticipate they will produce in the next calendar year, in excess of 200 metric tons aggregate of any Schedule 3 chemical.

Note to § 716.1(b)(3):

The methodology for determining a declarable and inspectable plant site is different. A Schedule 3 plant site that submits a declaration is subject to inspection only if the aggregate production of a Schedule 3 chemical at all declared plants on the plant site exceeds 200 metric tons.

(4) Unscheduled discrete organic chemical plant sites. Your declared plant site is subject to inspection if it produced by synthesis more than 200 metric tons aggregate of unscheduled discrete organic chemicals (UDOC) during the previous calendar year.

Note 1 to § 716.1(b)(4):

You must include amounts of unscheduled discrete organic chemicals containing phosphorus, sulfur or fluorine in the calculation of your plant site's aggregate production of unscheduled discrete organic chemicals.

Note 2 to § 716.1(b)(4):

All UDOC plant sites that submit a declaration based on § 715.1(a)(1)(i) of the CWCR are subject to a routine inspection.

(c) Responsibilities of the Department of Commerce. As the host and escort for the international Inspection Team for all inspections of facilities subject to the provisions of the CWCR under this part, BIS will:

(1) Lead on-site inspections;

(2) Provide Host Team notification to the facility of an impending inspection;

(3) Take appropriate action to obtain an administrative warrant in the event the facility does not consent to the inspection;

(4) Dispatch an advance team to the vicinity of the site to provide administrative and logistical support for the impending inspection and, upon request, to assist the facility with inspection preparation;

(5) Escort the Inspection Team on-site throughout the inspection process;

(6) Assist the Inspection Team with verification activities;

(7) Negotiate the development of a site-specific facility agreement, if appropriate (see § 716.6); and

(8) Ensure that an inspection adheres to the Convention, the Act and any warrant issued thereunder, and a site-specific facility agreement, if concluded.

Purposes and types of inspections of declared facilities.

(a) Schedule 1 facilities—(1) Purposes of inspections. The aim of inspections of Schedule 1 facilities is to verify that:

(i) The facility is not used to produce any Schedule 1 chemical, except for the declared Schedule 1 chemicals;

(ii) The quantities of Schedule 1 chemicals produced, processed or consumed are correctly declared and consistent with needs for the declared purpose; and

(iii) The Schedule 1 chemical is not diverted or used for purposes other than those declared.

(2) Types of inspections—(i) Initial inspections. (A) During initial inspections of declared Schedule 1 facilities, in addition to the verification activities listed in paragraph (a)(1) of this section, the Host Team and the Inspection Team will draft site-specific facility agreements (see § 716.6 of the CWCR) for the conduct of routine inspections.

(B) For new Schedule 1 production facilities declared pursuant to § 712.4 of the CWCR, the U.S. National Authority, in coordination with BIS, will conclude a facility agreement with the OPCW before the facility begins producing above 100 grams aggregate of Schedule 1 chemicals.

(ii) Routine inspections. During routine inspections of declared Schedule 1 facilities, the verification activities listed in paragraph (a)(1) of this section will be carried out pursuant to site-specific facility agreements (see § 716.6 of the CWCR) developed during the initial inspections and concluded between the U.S. Government and the OPCW pursuant to the Convention.

(b) Schedule 2 plant sites—(1) Purposes of inspections. (i) The general aim of inspections of declared Schedule 2 plant sites is to verify that activities are in accordance with obligations under the Convention and consistent with the information provided in declarations. Particular aims of inspections of declared Schedule 2 plant sites are to verify:

(A) The absence of any Schedule 1 chemical, especially its production, except in accordance with the provisions of the Convention;

(B) Consistency with declarations of production, processing or consumption of Schedule 2 chemicals; and

(C) Non-diversion of Schedule 2 chemicals for activities prohibited under the Convention.

(ii) During initial inspections, Inspection Teams shall collect information to determine the frequency and intensity of subsequent inspections by assessing the risk to the object and purpose of the Convention posed by the relevant chemicals, the characteristics of the plant site and the nature of the activities carried out there. The Start Printed Page 24956Inspection Team will take the following criteria into account, inter alia:

(A) The toxicity of the scheduled chemicals and of the end-products produced with them, if any;

(B) The quantity of the scheduled chemicals typically stored at the inspected site;

(C) The quantity of feedstock chemicals for the scheduled chemicals typically stored at the inspected site;

(D) The production capacity of the Schedule 2 plants; and

(E) The capability and convertibility for initiating production, storage and filling of toxic chemicals at the inspected site.

(2) Types of inspections—(i) Initial inspections. During initial inspections of declared Schedule 2 plant sites, in addition to the verification activities listed in paragraph (b)(1) of this section, the Host Team and the Inspection Team will generally draft site-specific facility agreements for the conduct of routine inspections (see § 716.6 of the CWCR).

(ii) Routine inspections. During routine inspections of declared Schedule 2 plant sites, the verification activities listed in paragraph (b)(1) of this section will be carried out pursuant to any appropriate site-specific facility agreements developed during the initial inspections (see § 716.6 of the CWCR), and concluded between the U.S. Government and the OPCW pursuant to the Convention and the Act.

(c) Schedule 3 plant sites—(1) Purposes of inspections. The general aim of inspections of declared Schedule 3 plant sites is to verify that activities are consistent with the information provided in declarations. The particular aim of inspections is to verify the absence of any Schedule 1 chemical, especially its production, except in accordance with the Convention.

(2) Routine inspections. During routine inspections of declared Schedule 3 plant sites, in addition to the verification activities listed in paragraph (c)(1) of this section, the Host Team and the Inspection Team may draft site-specific facility agreements for the conduct of subsequent routine inspections (see § 716.6 of the CWCR). Although the Convention does not require facility agreements for declared Schedule 3 plant sites, the owner, operator, occupant or agent in charge of a plant site may request one. The Host Team will not seek a facility agreement if the owner, operator, occupant or agent in charge of the plant site does not request one. Subsequent routine inspections will be carried out pursuant to site-specific facility agreements, if applicable.

(d) Unscheduled discrete organic chemical plant sites—(1) Purposes of inspections. The general aim of inspections of declared UDOC plant sites is to verify that activities are consistent with the information provided in declarations. The particular aim of inspections is to verify the absence of any Schedule 1 chemical, especially its production, except in accordance with the Convention.

(2) Routine inspections. During routine inspections of declared UDOC plant sites, in addition to the verification activities listed in paragraph (d)(1) of this section, the Host Team and the Inspection Team may develop draft site-specific facility agreements for the conduct of subsequent routine inspections (see § 716.6 of the CWCR). Although the Convention does not require facility agreements for declared UDOC plant sites, the owner, operator, occupant or agent in charge of a plant site may request one. The Host Team will not seek a facility agreement if the owner, operator, occupant or agent in charge of the plant site does not request one. Subsequent routine inspections will be carried out pursuant to site-specific facility agreements, if applicable.

Consent to inspections; warrants for inspections.

(a) The owner, operator, occupant or agent in charge of a facility may consent to an initial or routine inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility.

(b) In instances where consent is not provided by the owner, operator, occupant or agent in charge for an initial or routine inspection, BIS will seek administrative warrants as provided by the Act.

Scope and conduct of inspections.

(a) General. Each inspection shall be limited to the purposes described in § 716.2 of the CWCR and shall be conducted in the least intrusive manner, consistent with the effective and timely accomplishment of its purpose as provided in the Convention.

(b) Scope.—(1) Description of inspections. During inspections, the Inspection Team:

(i) Will receive a pre-inspection briefing from facility representatives;

(ii) Will visually inspect the facilities or plants producing scheduled chemicals or UDOCs, which may include storage areas, feed lines, reaction vessels and ancillary equipment, control equipment, associated laboratories, first aid or medical sections, and waste and effluent handling areas, as necessary to accomplish their inspection;

(iii) May visually inspect other parts or areas of the plant site to clarify an ambiguity that has arisen during the inspection;

(iv) May take photographs or conduct formal interviews of facility personnel;

(v) May examine relevant records; and

(vi) May take samples as provided by the Convention, the Act and consistent with the requirements set forth by the Director of the United States National Authority, at 22 CFR part 103, and the facility agreement, if applicable.

(2) Scope of consent. When an owner, operator, occupant, or agent in charge of a facility consents to an initial or routine inspection, he or she is consenting to provide access to the Inspection Team and Host Team to any area of the facility, any item located on the facility, interviews with facility personnel, and any records necessary for the Inspection Team to complete its mission pursuant to paragraph (a) of this section, except for information subject to export control under ITAR (22 CFR parts 120 through 130) (see paragraph (b)(3) of this section). When consent is granted for an inspection, the owner, operator, occupant, or agent in charge agrees to provide the same degree of access provided for under section 305 of the Act. The determination of whether the Inspection Team's request to inspect any area, building, item or record is reasonable is the responsibility of the Host Team Leader.

(3) ITAR-controlled technology. ITAR-controlled technology shall not be divulged to the Inspection Team without U.S. Government authorization (such technology includes, but is not limited to technical data related to Schedule 1 chemicals or Schedule 2 chemicals identified in Note 2 to Supplement No. 1 to Part 712 or Note 1 to Supplement No. 1 to Part 713, respectively, of the CWCR; also see 22 CFR Section 121.1, i.e., the United States Munitions List). Facilities being inspected are responsible for the identification of ITAR-controlled technology to the BIS Host Team, if known.

(c) Pre-inspection briefing. Upon arrival of the Inspection Team and Host Team at the inspection site and before commencement of the inspection, facility representatives will provide the Inspection Team and Host Team with a pre-inspection briefing on the facility, the activities carried out there, safety measures, and administrative and logistical arrangements necessary for the inspection, which may be aided with the use of maps and other Start Printed Page 24957documentation as deemed appropriate by the facility. The time spent for the briefing will be limited to the minimum necessary and may not exceed three hours.

(1) The pre-inspection briefing will address:

(i) Facility health and safety issues and requirements, and associated alarm systems;

(ii) Declared facility activities, business and manufacturing operations;

(iii) Physical layout;

(iv) Delimitation of declared facility;

(v) Scheduled chemicals on the facility (declared and undeclared);

(vi) Block flow diagram or simplified process flow diagram;

(vii) Plants and units specific to declared operations;

(viii) Administrative and logistic information; and

(ix) Data declaration updates/revisions.

(2) The pre-inspection briefing may also address, inter alia:

(i) Introduction of key facility personnel;

(ii) Management, organization and history;

(iii) Confidential business information concerns;

(iv) Types and location of records/documents;

(v) Draft facility agreement, if applicable; and

(vi) Proposed inspection plan.

(d) Visual plant inspection. The Inspection Team may visually inspect the declared plant or facility and other areas or parts of the plant site as agreed by the Host Team Leader after consulting with the facility representative.

(e) Records review. The facility must provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to comply with the CWCR (see §§ 721.1 and 721.2 of the CWCR) and with appropriate accommodations in which the Inspection Team can review these supporting materials and documentation. Such access will be provided in appropriate formats (e.g., paper copies, electronic remote access by computer, microfilm, or microfiche) through the U.S. Government Host Team to Inspection Teams during the inspection period or as otherwise agreed upon by the Inspection Team and Host Team Leader. If a facility does not have access to records for activities that took place under previous ownership, because such records were not transferred to the current owner of the facility by the previous owner (e.g., as part of the contract involving the sale of the facility), the previous owner must make such records available to the Host Team for provision to the Inspection Team in accordance with section 305 of the Act. However, the current owner of a facility, upon receiving notification of an inspection (see § 716.5 of the CWCR), is responsible for informing BIS if the previous owner did not transfer records for activities that took place under the previous ownership—this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities.

(f) Effect of facility agreements. Routine inspections at facilities for which the United States has concluded a facility agreement with the OPCW will be conducted in accordance with the facility agreement. The existence of a facility agreement does not in any way limit the right of the owner, operator, occupant, or agent in charge of the facility to withhold consent to an inspection request.

(g) Hours of inspections. Consistent with the provisions of the Convention, the Host Team will ensure, to the extent possible, that each inspection is commenced, conducted, and concluded during ordinary working hours, but no inspection shall be prohibited or otherwise disrupted from commencing, continuing or concluding during other hours.

(h) Health and safety regulations and requirements. In carrying out their activities, the Inspection Team and Host Team shall observe federal, state, and local health and safety regulations and health and safety requirements established at the inspection site, including those for the protection of controlled environments within a facility and for personal safety. Such health and safety regulations and requirements will be set forth in, but will not necessarily be limited to, the facility agreement, if applicable.

(i) Preliminary findings. Upon completion of an inspection, the Inspection Team will meet with the Host Team and facility personnel to review the written preliminary findings of the Inspection Team and to clarify ambiguities. The Host Team will discuss the preliminary findings with the facility, and the Host Team Leader will take into consideration the facility's input when providing official comments on the preliminary findings to the Inspection Team. This meeting will be completed not later than 24 hours after the completion of the inspection.

Notification, duration and frequency of inspections.

(a) Inspection notification.—(1)(i) Content of notice. Inspections of facilities may be made only upon issuance of written notice by the United States National Authority (USNA) to the owner and to the operator, occupant or agent in charge of the premises to be inspected. BIS will also provide a separate inspection notification to the inspection point of contact identified in declarations submitted by the facility. If the United States is unable to provide actual written notice to the owner and to the operator, occupant or agent in charge, BIS (or the Federal Bureau of Investigation, if BIS is unable) may post notice prominently at the facility to be inspected. The notice shall include all appropriate information provided by the OPCW to the USNA concerning:

(A) The type of inspection;

(B) The basis for the selection of the facility or location for the type of inspection sought;

(C) The time and date that the inspection will begin and the period covered by the inspection; and

(D) The names and titles of the Inspection Team members.

(ii) Consent to inspection. In addition to appropriate information provided by the OPCW in its notification to the USNA, BIS's inspection notification will request that the facility indicate whether it will consent to an inspection, and will state whether an advance team is available to assist the site in preparation for the inspection. If an advance team is available, facilities that request advance team assistance are not required to reimburse the U.S. Government for costs associated with these activities. If a facility does not agree to provide consent to an inspection within four hours of receipt of the inspection notification, BIS will seek an administrative warrant. The current owner of a facility, upon receiving notification of an inspection, is also responsible for informing BIS if the previous owner did not transfer (to the current owner) records for activities that took place under the previous ownership (see § 716.4(e) of the CWCR)—this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities.

(iii) The following table sets forth the notification procedures for inspection: Start Printed Page 24958

Table to § 716.5(a)(1)

ActivityAgency actionFacility action
(A) OPCW notification inspection(1) U.S. National Authority transmits actual written notice and inspection authorization to the owner and operator, occupant, or agent in charge via facsimile within 6 hoursAcknowledges receipt of facsimile.
(2) Upon notification from the U.S. National Authority, BIS immediately transmits inspection notification via facsimile to the inspection point of contract to ascertain whether the facility (i) grants consent and (ii) requests assistance in preparing for the inspection. In absence of consent within four hours of facility receipt, BIS intends to seek an administrative warrant(A) Indicated whether it grants consent. (B) May request advance team support. No requirement for reimbursement of U.S. Government's services.
(B) Preparation for inspection(1) BIS advance team generally arrives in the vicinity of the facility to be inspected 1-2 days after OPCW notification for logistical and administrative preparationsIf advance team support is provided, facility works with the advance team on inspection-related issues.
(2) If records for activities that took place under the previous ownership of the facility are deemed relevant to the inspection, BIS will contact the previous owner of the facility to arrange for access to any such records required under the CWCR that have not been transferred to the current ownerThe current owner of the facility must inform BIS if the previous owner of the facility did not transfer (to the current owner) records for activities that took place under the previous ownership.

(2) Timing of notice.—(i) Schedule 1 facilities. For declared Schedule 1 facilities, the Technical Secretariat will notify the USNA of an initial inspection not less than 72 hours prior to arrival of the Inspection Team in the United States, and will notify the USNA of a routine inspection not less than 24 hours prior to arrival of the Inspection Team in the United States. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact of the facility as soon as possible after the OPCW notifies the USNA of the inspection.

(ii) Schedule 2 plant sites. For declared Schedule 2 plant sites, the Technical Secretariat will notify the USNA of an initial or routine inspection not less than 48 hours prior to arrival of the Inspection Team at the plant site to be inspected. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact at the plant site as soon as possible after the OPCW notifies the USNA of the inspection.

(iii) Schedule 3 and UDOC plant sites. For declared Schedule 3 and UDOC plant sites, the Technical Secretariat will notify the USNA of a routine inspection not less than 120 hours prior to arrival of the Inspection Team at the plant site to be inspected. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact of the plant site as soon as possible after the OPCW notifies the USNA of the inspection.

(b) Period of inspections.—(1) Schedule 1 facilities. For a declared Schedule 1 facility, the Convention does not specify a maximum duration for an initial inspection. The estimated period of routine inspections will be as stated in the facility agreement, unless extended by agreement between the Inspection Team and the Host Team Leader, and will be based on the risk to the object and purpose of the Convention posed by the quantities of chemicals produced, the characteristics of the facility and the nature of the activities carried out there. The Host Team Leader will consult with the inspected facility on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre-inspection briefing and preliminary findings are in addition to inspection activities. See § 716.4(c) and (i) of the CWCR for a description of these activities.

(2) Schedule 2 plant sites. For declared Schedule 2 plant sites, the maximum duration of initial and routine inspections shall be 96 hours, unless extended by agreement between the Inspection Team and the Host Team Leader. The Host Team Leader will consult with the inspected plant site on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre-inspection briefing and preliminary findings are in addition to inspection activities. See § 716.4(c) and (i) of the CWCR for a description of these activities.

(3) Schedule 3 and UDOC plant sites. For declared Schedule 3 or UDOC plant sites, the maximum duration of routine inspections shall be 24 hours, unless extended by agreement between the Inspection Team and the Host Team Leader. The Host Team Leader will consult with the inspected plant site on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre-inspection briefing and preliminary findings are in addition to inspection activities. See § 716.4(c) and (i) of the CWCR for a description of these activities.

(c) Frequency of inspections. The frequency of inspections is as follows:

(1) Schedule 1 facilities. As provided by the Convention, the frequency of inspections at declared Schedule 1 facilities is determined by the OPCW based on the risk to the object and purpose of the Convention posed by the Start Printed Page 24959quantities of chemicals produced, the characteristics of the facility and the nature of the activities carried out at the facility. The frequency of inspections will be stated in the facility agreement.

(2) Schedule 2 plant sites. As provided by the Convention and the Act, the maximum number of inspections at declared Schedule 2 plant sites is two per calendar year per plant site. The OPCW will determine the frequency of routine inspections for each declared Schedule 2 plant site based on the Inspection Team's assessment of the risk to the object and purpose of the Convention posed by the relevant chemicals, the characteristics of the plant site, and the nature of the activities carried out there. The frequency of inspections will be stated in the facility agreement, if applicable.

(3) Schedule 3 plant sites. As provided by the Convention, no declared Schedule 3 plant site may receive more than two inspections per calendar year and the combined number of inspections of Schedule 3 and UDOC plant sites in the United States may not exceed 20 per calendar year.

(4) UDOC plant sites. As provided by the Convention, no declared UDOC plant site may receive more than two inspections per calendar year and the combined number of inspections of Schedule 3 and UDOC plant sites in the United States may not exceed 20 per calendar year.

Facility agreements.

(a) Description and requirements. A facility agreement is a site-specific agreement between the U.S. Government and the OPCW. Its purpose is to define procedures for inspections of a specific declared facility that is subject to inspection because of the type or amount of chemicals it produces, processes or consumes.

(1) Schedule 1 facilities. The Convention requires that facility agreements be concluded between the United States and the OPCW for all declared Schedule 1 facilities. For new Schedule 1 production facilities declared pursuant to § 712.4 of the CWCR, the USNA, in coordination with the Department of Commerce, will conclude a facility agreement with the OPCW before the facility begins producing above 100 grams aggregate of Schedule 1 chemicals.

(2) Schedule 2 plant sites. The USNA will ensure that such facility agreements are concluded with the OPCW unless the owner, operator, occupant or agent in charge of the plant site and the OPCW Technical Secretariat agree that such a facility agreement is not necessary.

(3) Schedule 3 and UDOC plant sites. If the owner, operator, occupant or agent in charge of a declared Schedule 3 or UDOC plant site requests a facility agreement, the USNA will ensure that a facility agreement for such a plant site is concluded with the OPCW.

(b) Notification; negotiation of draft and final facility agreements; and conclusion of facility agreements. Prior to the development of a facility agreement, BIS shall notify the owner, operator, occupant, or agent in charge of the facility, and if the owner, operator, occupant or agent in charge so requests, the notified person may participate in preparations with BIS representatives for the negotiation of such an agreement. During the initial or routine inspection of a declared facility, the Inspection Team and the Host Team will negotiate a draft facility agreement or amendment to a facility agreement. To the maximum extent practicable consistent with the Convention, the owner and the operator, occupant or agent in charge of the facility may observe facility agreement negotiations between the U.S. Government and OPCW. As a general rule, BIS will consult with the affected facility on the contents of the agreements and take the facility's views into consideration during negotiations. BIS will participate in the negotiation of, and approve, all final facility agreements with the OPCW. Facilities will be notified of and have the right to observe final facility agreement negotiations between the United States and the OPCW to the maximum extent practicable, consistent with the Convention. Prior to the conclusion of a final facility agreement, the affected facility will have an opportunity to comment on the facility agreement. BIS will give consideration to such comments prior to approving final facility agreements with the OPCW. The USNA shall ensure that facility agreements for Schedule 1, Schedule 2, Schedule 3 and UDOC facilities are concluded, as appropriate, with the OPCW in coordination with BIS.

(c) [Reserved]

(d) Further information. For further information about facility agreements, please write or call: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, VA 22209, Telephone: (703) 605-4400.

Samples.

The owner, operator, occupant or agent in charge of a facility must provide a sample as provided for in the Convention and the Act and consistent with requirements set forth by the Director of the United States National Authority in 22 CFR part 103. Analysis will be restricted to verifying the absence of undeclared scheduled chemicals, unless otherwise agreed after consultation with the facility representative.

On-site monitoring of Schedule 1 facilities.

Declared Schedule 1 facilities are subject to verification by monitoring with on-site instruments as provided by the Convention. For facilities subject to the CWCR, however, such monitoring is not anticipated. The U.S. Government will ensure that any monitoring that may be requested by the OPCW is carried out pursuant to the Convention and U.S. law.

Report of inspection-related costs.

Pursuant to section 309(b)(5) of the Act, any facility that has undergone any inspections pursuant to the CWCR during a given calendar year must report to BIS within 90 days of an inspection on its total costs related to that inspection. Although not required, such reports should identify categories of costs separately if possible, such as personnel costs (production-line, administrative, legal), costs of producing records, and costs associated with shutting down chemical production or processing during inspections, if applicable. This information should be reported to BIS on company letterhead at the address given in § 716.6(d) of the CWCR, with the following notation: “Attn: Report of inspection-related costs.”

Post-inspection activities.

BIS will forward a copy of the final inspection report to the inspected facility for their review upon receipt from the OPCW. Facilities may submit comments on the final inspection report to BIS, within the time-frame specified by BIS (i.e., at least 7 working days from receipt of the report), and BIS will consider them, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter detailing the issues that require follow-up action, e.g., amended declaration requirement (see §§ 712.7(d), 713.5(d), 714.4(d), and 715.2(c) of the CWCR), information on the status of the draft facility agreement, if applicable, and the date on which the report on inspection-related costs (see § 716.9 of the CWCR) is due to BIS. Start Printed Page 24960

Supplement No. 1 to Part 716.—Notification, Duration and Frequency of Inspections

Schedule 1Schedule 2Schedule 3Unscheduled discrete organic chemicals
Notice of initial or routine inspection to USNA72 hours prior to arrival of Inspection Team at the point of entry (initial); 24 hours prior to arrival of Inspection Team at the point of entry (routine)48 hours prior to arrival of Inspection Team at the plant site120 hours prior to arrival of Inspection Team at the plant site120 hours prior to arrival of Inspection Team at the plant site.
Duration of inspectionAs specified in facility agreement96 hours24 hours24 hours.
Maximum number of inspectionsDetermined by OPCW based on characteristics of facility and the nature of the activities carried out at the facility2 per calendar year per plant site2 per calendar year per plant site2 per calendar year per plant site.
Notification of challenge inspection to USNA*12 hours prior to arrival of inspection team at the point of entry.
Duration of Challenge inspection*84 hours.
* See part 717 of the CWCR.

Supplement Nos. 2-3 to Part 716 [Reserved]

End Part Start Part

PART 717—CWC CLARIFICATION PROCEDURES (CONSULTATIONS AND CHALLENGE INSPECTIONS)

717.1
Clarification procedures; challenge inspection requests pursuant to Article IX of the Convention.
717.2
Challenge inspections.
717.3
Samples.
717.4
Report of inspection-related costs.
717.5
Post-inspection activities.
Start Authority

Authority: 22 U.S.C. 6701 et seq., 2681; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Clarification procedures; challenge inspection requests pursuant to Article IX of the Convention.

(a) Article IX of the Convention sets forth procedures for clarification, between States Parties, of issues about compliance with the Convention. States Parties may attempt to resolve such issues through consultation between themselves or through the Organization for the Prohibition of Chemical Weapons (OPCW). A State Party may also request the OPCW to conduct an on-site challenge inspection of any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party. Such an on-site challenge inspection request shall be for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the Convention.

(b) In the event that BIS receives a request for clarification, pursuant to Article IX of the Convention, concerning possible non-compliance with the CWC, any person or facility subject to the CWCR (parts 710 through 729 of this subchapter) that receives an official written request from BIS for clarification must, within five working days from receipt of such request, provide BIS with any relevant information required to respond to the OPCW or the State Party(ies) who requested clarification under Article IX. BIS will contact the person or facility subject to the Article IX clarification, as early as practicable, prior to issuing an official written request for clarification to the person or facility.

Challenge inspections.

Persons or facilities, other than U.S. Government facilities as defined in § 710.2(a) of the CWCR, may be subject to a challenge inspection by the OPCW concerning possible non-compliance with the requirements of the Convention, irrespective of whether or not they are required to submit declarations or reports under the CWCR. BIS will host and escort the international Inspection Team for challenge inspections in the United States of such persons or facilities.

(a) Consent to challenge inspections; warrants for challenge inspections. (1) The owner, operator, occupant or agent in charge of a facility may consent to a challenge inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility. The facility must respond to the notice of inspection, which includes within it a request for consent to the inspection, within four hours of the facility's receipt of the notice of inspection from BIS.

(2) In instances where the owner, operator, occupant or agent in charge of a facility does not consent to a challenge inspection, BIS will assist the Department of Justice in seeking a criminal warrant as provided by the Act. The existence of a facility agreement does not in any way limit the right of the operator of the facility to withhold consent to a challenge inspection request.

(b) Notice of challenge inspection. Challenge inspections may be made only upon issuance of written notice by the United States National Authority (USNA) to the owner and to the operator, occupant or agent in charge of the premises. BIS will provide notice of inspection to the inspection point of contact at such time that a person or facility has been clearly established, if possible, and when notification is deemed appropriate. If the United States is unable to provide actual written notice to the owner and to the operator, occupant or agent in charge, BIS (or another appropriate agency, if BIS is unable) may post notice prominently at the plant, plant site or other facility or location to be inspected.

(1) Timing. The OPCW will notify the USNA of a challenge inspection not less than 12 hours before the planned arrival of the Inspection Team at the U.S. point of entry. Written notice will be provided to the owner and to the operator, occupant, or agent in charge of the premises at any appropriate time determined by the USNA after receipt of notification from the OPCW Technical Secretariat.

(2)(i) Content of notice. The notice of inspection shall include all appropriate information provided by the OPCW to the United States National Authority concerning:Start Printed Page 24961

(A) The type of inspection;

(B) The basis for the selection of the facility or locations for the type of inspection sought;

(C) The time and date that the inspection will begin and the period covered by the inspection;

(D) The names and titles of the Inspection Team members; and

(E) All appropriate evidence or reasons provided by the requesting State Party for seeking the inspection.

(ii) In addition to appropriate information provided by the OPCW in its notification to the USNA, the notice of inspection that BIS delivers to the facility will request the facility to indicate whether it will consent to an inspection and will state whether an advance team is available to assist the site in preparation for the inspection. If an advance team is available, facilities that request advance team assistance are not required to reimburse the U.S. Government for costs associated with these activities. If a facility does not agree to provide consent to an inspection within four hours of receipt of the inspection notification, BIS will assist the Department of Justice in seeking a criminal warrant.

(c) Period of inspection. Challenge inspections will not exceed 84 hours, unless extended by agreement between the Inspection Team and the Host Team Leader.

(d) Scope and conduct of inspections— (1) General. Each inspection shall be limited to the purposes described in this section and conducted in the least intrusive manner, consistent with the effective and timely accomplishment of its purpose as provided in the Convention.

(2) Scope of inspections. If an owner, operator, occupant, or agent in charge of a facility consents to a challenge inspection, the inspection will be conducted under the authority of the Act and in accordance with the provisions of Article IX and applicable provisions of the Verification Annex of the Convention. If consent is not granted, the inspection will be conducted pursuant to the terms of a criminal warrant issued under the authority of the Act.

(3) Hours of inspections. Consistent with the provisions of the Convention, the Host Team will ensure, to the extent possible, that each inspection is commenced, conducted, and concluded during ordinary working hours, but no inspection shall be prohibited or otherwise disrupted from commencing, continuing or concluding during other hours.

(4) Health and safety regulations and requirements. In carrying out their activities, the Inspection Team and Host Team shall observe federal, state, and local health and safety regulations and health and safety requirements established at the inspection site, including those for the protection of controlled environments within a facility and for personal safety.

(5) Pre-inspection briefing. Upon arrival of the Inspection Team and the Host Team in the vicinity of the inspection site and before commencement of the inspection, facility representatives will provide the Inspection Team and the Host Team with a pre-inspection briefing concerning the facility, the activities carried out there, safety measures, and administrative and logistical arrangements necessary for the inspection, which may be aided with the use of maps and other documentation as deemed appropriate by the facility. The time spent for the briefing may not exceed three hours.

Samples.

If requested by the Inspection Team, the owner, operator, occupant or agent in charge of a facility must provide a sample, as provided for in the Convention and the Act and consistent with requirements set forth by the Director of the United States National Authority in 22 CFR part 103. This may be done by providing a sample, taken in the presence of the Inspection Team, to the U.S. Host Team leader, who will then release it to the Inspection Team for analysis. Analysis of the sample may be restricted to verifying the presence or absence of Schedule 1, 2, or 3 chemicals, or appropriate degradation products, unless agreed otherwise.

Report of inspection-related costs.

Pursuant to section 309(b)(5) of the Act, any facility that has undergone any inspections pursuant to the CWCR during a given calendar year must report to BIS within 90 days of an inspection on its total costs related to that inspection. Although not required, such reports should identify categories of costs separately if possible, such as personnel costs (production-line, administrative, legal), costs of producing records, and costs associated with shutting down chemical production or processing during inspections, if applicable. This information should be reported to BIS on company letterhead at the address given in § 716.6(d) of the CWCR, with the following notation: “AATTN: Report of Inspection-related Costs.”

Post-inspection activities.

BIS will forward a copy of the final inspection report to the inspected facility for their review upon receipt from the OPCW. Facilities may submit comments on the final inspection report to BIS, and BIS will consider them, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter detailing the issues that require follow-up action and the date on which the report on inspection-related costs (see § 717.4 of the CWCR) is due to BIS.

End Part Start Part

PART 718—CONFIDENTIAL BUSINESS INFORMATION

718.1
Definition.
718.2
Identification of confidential business information.
718.3
Disclosure of confidential business information.

Supplement No. 1 to Part 718—Confidential Business Information Declared or Reported

Start Authority

Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Definition.

The Chemical Weapons Convention Implementation Act of 1998 (“the Act”) defines confidential business information as information included in categories specifically identified in sections 103(g)(1) and 304(e)(2) of the Act and other trade secrets as follows:

(a) Financial data;

(b) Sales and marketing data (other than shipment data);

(c) Pricing data;

(d) Personnel data;

(e) Research data;

(f) Patent data;

(g) Data maintained for compliance with environmental or occupational health and safety regulations;

(h) Data on personnel and vehicles entering and personnel and personal passenger vehicles exiting the site;

(i) Any chemical structure;

(j) Any plant design, process, technology or operating method;

(k) Any operating requirement, input, or result that identifies any type or quantity of chemicals used, processed or produced;

(l) Any commercial sale, shipment or use of a chemical; or

(m) Information that qualifies as a trade secret under 5 U.S.C. 552(b)(4) (Freedom of Information Act), provided such trade secret is obtained from a U.S. person or through the U.S. Government.

Identification of confidential business information.

(a) General. Certain confidential business information submitted to BIS Start Printed Page 24962in declarations and reports does not need to be specifically identified and marked by the submitter, as described in paragraph (b) of this section. Other confidential business information submitted to BIS in declarations and reports and confidential business information provided to the Host Team during inspections must be identified by the inspected facility so that the Host Team can arrange appropriate marking and handling.

(b) Confidential business information contained in declarations and reports. (1) BIS has identified those data fields on the declaration and report forms that request “confidential business information” as defined by the Act. These data fields are identified in the table provided in Supplement No. 1 to this part.

(2) You must specifically identify in a cover letter submitted with your declaration or report any additional information on a declaration or report form (i.e., information not provided in one of the data fields listed in the table included in Supplement No. 1 to this part), including information provided in attachments to Form A or Form B, that you believe is confidential business information, as defined by the Act, and must describe how disclosure would likely result in competitive harm.

Note to § 718.2(b):

BIS has also determined that descriptions of Schedule 1 facilities submitted with Initial Declarations as attachments to Form A contain confidential business information, as defined by the Act.

(c) Confidential business information contained in advance notifications. Information contained in advance notifications of exports and imports of Schedule 1 chemicals is not subject to the confidential business information provisions of the Act. You must identify information in your advance notifications of Schedule 1 imports that you consider to be privileged and confidential, and describe how disclosure would likely result in competitive harm. See § 718.3(b) of the CWCR for provisions on disclosure to the public of such information by the U.S. Government.

(d) Confidential business information related to inspections disclosed to, reported to, or otherwise acquired by, the U.S. Government. (1) During inspections, certain confidential business information, as defined by the Act, may be disclosed to the Host Team. Facilities being inspected are responsible for identifying confidential business information to the Host Team, so that if it is disclosed to the Inspection Team, appropriate marking and handling can be arranged, in accordance with the provisions of the Convention (see § 718.3(c)(1)(ii) of the CWCR). Confidential business information not related to the purpose of an inspection or not necessary for the accomplishment of an inspection, as determined by the Host Team, may be removed from sight, shrouded, or otherwise not disclosed.

(2) Before or after inspections, confidential business information related to an inspection that is contained in any documents or that is reported to, or otherwise acquired by, the U.S. Government, such as facility information for pre-inspection briefings, facility agreements, and inspection reports, must be identified by the facility so that it may be appropriately marked and handled. If the U.S. Government creates derivative documents from such documents or reported information, they will also be marked and handled as confidential business information.

Disclosure of confidential business information.

(a) General. Confidentiality of information will be maintained by BIS consistent with the non-disclosure provisions of the Act, the Export Administration Regulations (15 CFR parts 730 through 799), the International Traffic in Arms Regulations (22 CFR parts 120 through 130), and applicable exemptions under the Freedom of Information Act, as appropriate.

(b) Disclosure of confidential business information contained in advance notifications. Information contained in advance notifications of exports and imports of Schedule 1 chemicals is not subject to the confidential business information provisions of the Act. Disclosure of such information will be in accordance with the provisions of the relevant statutory and regulatory authorities as follows:

(1) Exports of Schedule 1 chemicals. Confidentiality of all information contained in these advance notifications will be maintained consistent with the non-disclosure provisions of the Export Administration Regulations (15 CFR parts 730 through 799), the International Traffic in Arms Regulations (22 CFR parts 120 through 130), and applicable exemptions under the Freedom of Information Act, as appropriate; and

(2) Imports of Schedule 1 chemicals. Confidentiality of information contained in these advance notifications will be maintained pursuant to applicable exemptions under the Freedom of Information Act.

(c) Disclosure of confidential business information pursuant to § 404(b) of the Act—(1) Disclosure to the Organization for the Prohibition of Chemical Weapons (OPCW). (i) As provided by Section 404(b)(1) of the Act, the U.S. Government will disclose or otherwise provide confidential business information to the Technical Secretariat of the OPCW or to other States Parties to the Convention, in accordance with provisions of the Convention, particularly with the provisions of the Annex on the Protection of Confidential Information (Confidentiality Annex).

(ii) Convention provisions. (A) The Convention provides that States Parties may designate information submitted to the Technical Secretariat as confidential, and requires the OPCW to limit access to, and prevent disclosure of, information so designated, except that the OPCW may disclose certain confidential information submitted in declarations to other States Parties if requested. The OPCW has developed a classification system whereby States Parties may designate the information they submit in their declarations as “restricted,” “protected,” or “highly protected,” depending on the sensitivity of the information. Other States Parties are obligated, under the Convention, to store and restrict access to information which they receive from the OPCW in accordance with the level of confidentiality established for that information.

(B) The OPCW Inspection Team members are prohibited, under the terms of their employment contracts and pursuant to the Confidentiality Annex of the Convention, from disclosing to any unauthorized persons, during their employment and for five years after termination of their employment, any confidential information coming to their knowledge or into their possession in the performance of their official duties.

(iii) U.S. Government designation of information to the Technical Secretariat. It is the policy of the U.S. Government to designate all facility information it provides to the Technical Secretariat in declarations, reports and Schedule 1 advance notifications as “protected.” It is the policy of the U.S. Government to designate confidential business information that it discloses to Inspection Teams during inspections as “protected” or “highly protected,” depending on the sensitivity of the information. The Technical Secretariat is responsible for storing and limiting access to any confidential business information contained in a document according to its established procedures.

(2) Disclosure to Congress. Section 404(b)(2) of the Act provides that the U.S. Government must disclose confidential business information to any committee or subcommittee of Congress with appropriate jurisdiction upon the Start Printed Page 24963written request of the chairman or ranking minority member of such committee or subcommittee. No such committee or subcommittee, and no member and no staff member of such committee or subcommittee, may disclose such information or material except as otherwise required or authorized by law.

(3) Disclosure to other Federal agencies for law enforcement actions and disclosure in enforcement proceedings under the Act. Section 404(b)(3) of the Act provides that the U.S. Government must disclose confidential business information to other Federal agencies for enforcement of the Act or any other law, and must disclose such information when relevant in any proceeding under the Act. Disclosure will be made in such manner as to preserve confidentiality to the extent practicable without impairing the proceeding. Section 719.14(b) of the CWCR provides that all hearings will be closed, unless the Administrative Law Judge for good cause shown determines otherwise. Section 719.20 of the CWCR provides that parties may request that the administrative law judge segregate and restrict access to confidential business information contained in material in the record of an enforcement proceeding.

(4) Disclosure to the public; national interest determination. Section 404(c) of the Act provides that confidential business information, as defined by the Act, that is in the possession of the U.S. Government, is exempt from public disclosure in response to a Freedom of Information Act request, except when such disclosure is determined to be in the national interest.

(i) National interest determination. The United States National Authority (USNA), in coordination with the CWC interagency group, shall determine on a case-by-case basis if disclosure of confidential business information in response to a Freedom of Information Act request is in the national interest.

(ii) Notification of intent to disclose pursuant to a national interest determination. The Act provides for notification to the affected person of intent to disclose confidential business information based on the national interest, unless such notification of intent to disclose is contrary to national security or law enforcement needs. If, after coordination with the agencies that constitute the CWC interagency group, the USNA does not determine that such notification of intent to disclose is contrary to national security or law enforcement needs, the USNA will notify the person that submitted the information and the person to whom the information pertains of the intent to disclose the information.

Supplement No. 1 to Part 718.—Confidential Business Information Declared or Reported *

Fields containing confidential business information
Schedule 1 Forms:
Certification FormNONE.
Form 1-1NONE.
Form 1-2All fields.
Form 1-2AAll fields.
Form 1-2BAll fields.
Form 1-3All fields.
Form 1-4All fields.
Schedule 2 Forms:
Certification FormNONE.
Form 2-1NONE.
Form 2-2Question 2-2.9
Form 2-3All fields.
Form 2-3AAll fields.
Form 2-3BAll fields.
Form 2-3CAll fields.
Form 2-4All fields.
Schedule 3 Forms:
Certification FormNONE.
Form 3-1NONE.
Form 3-2NONE.
Form 3-3All fields.
Form 3-4All fields.
Unscheduled Discrete Organic Chemicals Forms:
Certification FormNONE.
Form UDOCNONE.
FORMS A and B and attachments (all Schedules and UDOCs)Case-by-case; must be identified by submitter.
* This table lists those data fields on the Declaration and Report Forms that request “confidential business information” (CBI) as defined by the Act (sections 103(g) and 304(e)(2)). As provided by section 404(a) of the Act, CBI is exempt from disclosure in response to a Freedom of Information Act (FOIA) request under sections 552(b)(3) and 552(b)(4) (5 U.S.C.A. 552(b)(3)-(4)), unless a determination is made, pursuant to section 404(c) of the Act, that such disclosure is in the national interest. Other FOIA exemptions to disclosure may also apply. You must identify CBI provided in Form A and/or Form B attachments, and provide the reasons supporting your claim of confidentiality, except that Schedule 1 facility technical descriptions submitted with initial declarations are always considered to include CBI. If you believe that information you are submitting in a data field marked “none” in the Table is CBI, as defined by the Act, you must identify the specific information and provide the reasons supporting your claim of confidentiality in a cover letter.
End Part Start Part

PART 719—ENFORCEMENT

719.1
Scope and definitions.
719.2
Violations of the Act subject to administrative and criminal enforcement proceedings.
719.3
Violations of the IEEPA subject to judicial enforcement proceedings.
719.4
Violations and sanctions under the Act not subject to proceedings under the CWCR.
719.5
Initiation of administrative proceedings.
719.6
Request for hearing and answer.
719.7
Representation.
719.8
Filing and service of papers other than the NOVA.
719.9
Summary decision.
719.10
Discovery.
719.11
Subpoenas.
719.12
Matters protected against disclosure.
719.13
Prehearing conference.
719.14
Hearings.
719.15
Procedural stipulations.
719.16
Extension of time.
719.17
Post-hearing submissions.
719.18
Decisions.
719.19
Settlement.
719.20
Record for decision.
719.21
Payment of final assessment.
719.22
Reporting a violation.
Start Authority

Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR 1994, Comp., p. 950; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Scope and definitions.

(a) Scope. This part 719 describes the various sanctions that apply to violations of the Act and the CWCR. It also establishes detailed administrative procedures for certain violations of the Act. The three categories of violations are as follows:

(1) Violations of the Act subject to administrative and criminal enforcement proceedings. Section 719.2 of the CWCR sets forth violations for which the statutory basis is the Act. BIS investigates these violations and, for administrative proceedings, prepares charges, provides legal representation to the U.S. Government, negotiates settlements, and makes recommendations to officials of the Department of State with respect to the initiation and resolution of proceedings. The administrative procedures applicable to these violations are found in §§ 719.5 through 719.22 of the CWCR. The Department of State gives notice of initiation of administrative proceedings and issues orders imposing penalties pursuant to 22 CFR part 103, subpart C.

(2) Violations of the International Emergency Economic Powers Act (IEEPA) subject to judicial enforcement proceedings. Section 719.3 of the CWCR sets forth violations of the Chemical Weapons Convention for which the statutory basis is the IEEPA. BIS refers these violations to the Department of Justice for civil or criminal judicial enforcement.

(3) Violations and sanctions under the Act not subject to proceedings under the CWCR. Section 719.4 of the CWCR sets forth violations and sanctions under the Start Printed Page 24964Act that are not violations of the CWCR and that are not subject to proceedings under the CWCR. This section is included solely for informational purposes. BIS may assist in investigations of these violations, but has no authority to initiate any enforcement action under the CWCR.

Note to § 719.1(a):

This part 719 does not apply to violations of the export requirements imposed pursuant to the Chemical Weapons Convention and set forth in the Export Administration Regulations (EAR) (15 CFR parts 730 through 799) and in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130).

(b) Definitions. The following are definitions of terms as used only in parts 719 and 720 of the CWCR. For definitions of terms applicable to parts 710 through 718 and parts 721 and 722 of the CWCR, see part 710 of the CWCR.

Act (The). The Chemical Weapons Convention Implementation Act of 1998 (22 U.S.C. 6701-6777).

Assistant Secretary for Export Enforcement. The Assistant Secretary for Export Enforcement, Bureau of Industry and Security, United States Department of Commerce.

Final decision. A decision or order assessing a civil penalty, or otherwise disposing of or dismissing a case, which is not subject to further administrative review, but which may be subject to collection proceedings or judicial review in an appropriate Federal court as authorized by law.

IEEPA. The International Emergency Economic Powers Act, as amended (50 U.S.C. 1701-1706).

Office of Chief Counsel. The Office of Chief Counsel for Industry and Security, United States Department of Commerce.

Report. For purposes of parts 719 and 720 of the CWCR, the term “report” means any declaration, report, or advance notification required under parts 712 through 715 of the CWCR.

Respondent. Any person named as the subject of a letter of intent to charge, or a Notice of Violation and Assessment (NOVA) and proposed order.

Under Secretary, Bureau of Industry and Security. The Under Secretary, Bureau of Industry and Security, United States Department of Commerce.

Violations of the Act subject to administrative and criminal enforcement proceedings.

(a) Violations.—(1) Refusal to permit entry or inspection. No person may willfully fail or refuse to permit entry or inspection, or disrupt, delay or otherwise impede an inspection, authorized by the Act.

(2) Failure to establish or maintain records. No person may willfully fail or refuse:

(i) To establish or maintain any record required by the Act or the CWCR; or

(ii) To submit any report, notice, or other information to the United States Government in accordance with the Act or the CWCR; or

(iii) To permit access to or copying of any record required to be established or maintained by the Act or the CWCR, including any record that is exempt from disclosure under the Act or the CWCR.

(b) Civil penalties.—(1) Civil penalty for refusal to permit entry or inspection. Any person that is determined to have willfully failed or refused to permit entry or inspection, or to have disrupted, delayed or otherwise impeded an authorized inspection, as set forth in paragraph (a)(1) of this section, shall pay a civil penalty in an amount not to exceed $25,000 for each violation. Each day the violation continues constitutes a separate violation.

(2) Civil penalty for failure to establish or maintain records. Any person that is determined to have willfully failed or refused to establish or maintain any record or submit any report, notice, or other information required by the Act or the CWCR, or to have willfully failed or refused to permit access to or copying of any record, including any record exempt from disclosure under the Act or the CWCR as set forth in paragraph (a)(2) of this section, shall pay a civil penalty in an amount not to exceed $5,000 for each violation.

(c) Criminal penalty. Any person that knowingly violates the Act by willfully failing or refusing to permit entry or inspection authorized by the Act; or by willfully disrupting, delaying or otherwise impeding an inspection authorized by the Act; or by willfully failing or refusing to establish or maintain any required record, or to submit any required report, notice, or other information; or by willfully failing or refusing to permit access to or copying of any record, including records exempt from disclosure under the Act or the CWCR, shall, in addition to or in lieu of any civil penalty that may be imposed, be fined under Title 18 of the United States Code, be imprisoned for not more than one year, or both.

(d) Denial of export privileges. Any person in the United States or any U.S. national may be subject to a denial of export privileges after notice and opportunity for hearing pursuant to part 720 of the CWCR if that person has been convicted under Title 18, section 229 of the United States Code.

Violations of the IEEPA subject to judicial enforcement proceedings.

(a) Violations.—(1) Import restrictions involving Schedule 1 chemicals. Except as otherwise provided in § 712.2 of the CWCR, no person may import any Schedule 1 chemical (See Supplement No. 1 to part 712 of the CWCR) unless:

(i) The import is from a State Party;

(ii) The import is for research, medical, pharmaceutical, or protective purposes;

(iii) The import is in types and quantities strictly limited to those that can be justified for such purposes; and

(iv) The importing person has notified BIS not less than 45 calendar days before the import pursuant to § 712.6 of the CWCR.

(2) Import restrictions involving Schedule 2 chemicals. Except as otherwise provided in § 713.1 of the CWCR, no person may, on or after April 29, 2000, import any Schedule 2 chemical (see Supplement No. 1 to part 713 of the CWCR) from any destination other than a State Party.

(b) Civil penalty. A civil penalty not to exceed $11,000 may be imposed in accordance with this part on any person for each violation of this section.[1]

(c) Criminal penalty. Whoever willfully violates paragraph (a)(1) or (2) of this section shall, upon conviction, be fined not more than $50,000, or, if a natural person, imprisoned for not more than ten years, or both; and any officer, director, or agent of any corporation who knowingly participates in such violation may be punished by like fine, imprisonment, or both.[2]

Violations and sanctions under the Act not subject to proceedings under the CWCR.

(a) Criminal penalties for development or use of a chemical weapon. Any person who violates 18 U.S.C. 229 shall be fined, or imprisoned for any term of years, or both. Any person who violates 18 U.S.C. 229 and by whose action the death of another person is the result shall be punished by death or imprisoned for life.

(b) Civil penalty for development or use of a chemical weapon. The Attorney Start Printed Page 24965General may bring a civil action in the appropriate United States district court against any person who violates 18 U.S.C. 229 and, upon proof of such violation by a preponderance of the evidence, such person shall be subject to pay a civil penalty in an amount not to exceed $100,000 for each such violation.

(c) Criminal forfeiture. (1) Any person convicted under section 229A(a) of Title 18 of the United States Code shall forfeit to the United States irrespective of any provision of State law:

(i) Any property, real or personal, owned, possessed, or used by a person involved in the offense;

(ii) Any property constituting, or derived from, and proceeds the person obtained, directly or indirectly, as the result of such violation; and

(iii) Any of the property used in any manner or part, to commit, or to facilitate the commission of, such violation.

(2) In lieu of a fine otherwise authorized by section 229A(a) of Title 18 of the United States Code, a defendant who derived profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds.

(d) Injunction. (1) The United States may, in a civil action, obtain an injunction against:

(i) The conduct prohibited under section 229 or 229C of Title 18 of the United States Code; or

(ii) The preparation or solicitation to engage in conduct prohibited under section 229 or 229D of Title 18 of the United States Code.

(2) In addition, the United States may, in a civil action, restrain any violation of section 306 or 405 of the Act, or compel the taking of any action required by or under the Act or the Convention.

Initiation of administrative proceedings.

(a) Letter of intent to charge. The Director of the Office of Export Enforcement, Bureau of Industry and Security, may notify a respondent by letter of the intent to charge. This letter of intent to charge will advise a respondent that BIS has conducted an investigation and intends to recommend that the Secretary of State issue a Notice of Violation and Assessment (NOVA). The letter of intent to charge will be accompanied by a draft NOVA and proposed order, and will give the respondent a specified period of time to contact BIS to discuss settlement of the allegations set forth in the draft NOVA. An administrative enforcement proceeding is not initiated by a letter of intent to charge. If the respondent does not contact BIS within the specified time, or if the respondent requests it, BIS will make its request for initiation of an administrative enforcement proceeding to the Secretary of State in accordance with paragraph (b) of this section.

(b) Request for Notice of Violation and Assessment (NOVA). The Director of the Office of Export Enforcement, Bureau of Industry and Security, may request that the Secretary of State initiate an administrative enforcement proceeding under this § 719.5 and 22 CFR 103.7. If the request is in accordance with applicable law, the Secretary of State will initiate an administrative enforcement proceeding by issuing a NOVA. The Office of Chief Counsel shall serve the NOVA as directed by the Secretary of State.

(c) Content of NOVA. The NOVA shall constitute a formal complaint, and will set forth the basis for the issuance of the proposed order. It will set forth the alleged violation(s) and the essential facts with respect to the alleged violation(s), reference the relevant statutory, regulatory or other provisions, and state the amount of the civil penalty to be assessed. The NOVA will inform the respondent of the right to request a hearing pursuant to § 719.6 of the CWCR, inform the respondent that failure to request such a hearing shall result in the proposed order becoming final and unappealable on signature of the Secretary of State, and provide payment instructions. A copy of the regulations that govern the administrative proceedings will accompany the NOVA.

(d) Proposed order. A proposed order shall accompany every NOVA, letter of intent to charge, and draft NOVA. It will briefly set forth the substance of the alleged violation(s) and the statutory, regulatory or other provisions violated. It will state the amount of the civil penalty to be assessed.

(e) Notice. Notice of the intent to charge or of the initiation of formal proceedings shall be given to the respondent (or respondent's agent for service of process, or attorney) by sending relevant documents, via first class mail, facsimile, or by personal delivery.

Request for hearing and answer.

(a) Time to answer. If the respondent wishes to contest the NOVA and proposed order issued by the Secretary of State, the respondent must request a hearing in writing within 15 business days from the postmarked date of the NOVA. If the respondent requests a hearing, the respondent must answer the NOVA within 30 days from the date of the request for hearing. The request for hearing and answer must be filed with the Administrative Law Judge (ALJ), along with a copy of the NOVA and proposed order, and served on the Office of Chief Counsel, and any other address(es) specified in the NOVA, in accordance with § 719.8 of the CWCR.

(b) Content of answer. The respondent's answer must be responsive to the NOVA and proposed order, and must fully set forth the nature of the respondent's defense(s). The answer must specifically admit or deny each separate allegation in the NOVA; if the respondent is without knowledge, the answer will so state and will operate as a denial. Failure to deny or controvert a particular allegation will be deemed an admission of that allegation. The answer must also set forth any additional or new matter the respondent contends supports a defense or claim of mitigation. Any defense or partial defense not specifically set forth in the answer shall be deemed waived, and evidence thereon may be refused, except for good cause shown.

(c) English required. The request for hearing, answer, and all other papers and documentary evidence must be submitted in English.

(d) Waiver. The failure of the respondent to file a request for a hearing and an answer within the times provided constitutes a waiver of the respondent's right to appear and contest the allegations set forth in the NOVA and proposed order. If no hearing is requested and no answer is provided, the proposed order will be signed and become final and unappealable.

Representation.

A respondent individual may appear and participate in person, a corporation by a duly authorized officer or employee, and a partnership by a partner. If a respondent is represented by counsel, counsel shall be a member in good standing of the bar of any State, Commonwealth or Territory of the United States, or of the District of Columbia, or be licensed to practice law in the country in which counsel resides, if not the United States. The U.S. Government will be represented by the Office of Chief Counsel. A respondent personally, or through counsel or other representative who has the power of attorney to represent the respondent, shall file a notice of appearance with the ALJ, or, in cases where settlement negotiations occur before any filing with the ALJ, with the Office of Chief Counsel.

Start Printed Page 24966
Filing and service of papers other than the NOVA.

(a) Filing. All papers to be filed with the ALJ shall be addressed to “CWC Administrative Enforcement Proceedings” at the address set forth in the NOVA, or such other place as the ALJ may designate. Filing by United States mail (first class postage prepaid), by express or equivalent parcel delivery service, via facsimile, or by hand delivery, is acceptable. Filing from a foreign country shall be by airmail or via facsimile. A copy of each paper filed shall be simultaneously served on all parties.

(b) Service. Service shall be made by United States mail (first class postage prepaid), by express or equivalent parcel delivery service, via facsimile, or by hand delivery of one copy of each paper to each party in the proceeding. The Department of State is a party to cases under the CWCR, but will be represented by the Office of Chief Counsel. Therefore, service on the government party in all proceedings shall be addressed to Office of Chief Counsel for Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-3839, Washington, DC 20230, or sent via facsimile to (202) 482-0085. Service on a respondent shall be to the address to which the NOVA and proposed order was sent, or to such other address as the respondent may provide. When a party has appeared by counsel or other representative, service on counsel or other representative shall constitute service on that party.

(c) Date. The date of filing or service is the day when the papers are deposited in the mail or are delivered in person, by delivery service, or by facsimile. Refusal by the person to be served, or by the person's agent or attorney, of service of a document or other paper will be considered effective service of the document or other paper as of the date of such refusal.

(d) Certificate of service. A certificate of service signed by the party making service, stating the date and manner of service, shall accompany every paper, other than the NOVA and proposed order, filed and served on the parties.

(e) Computation of time. In computing any period of time prescribed or allowed by this part, the day of the act, event, or default from which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, a Sunday, or a legal holiday (as defined in Rule 6(a) of the Federal Rules of Civil Procedure), in which case the period runs until the end of the next day which is neither a Saturday, a Sunday, nor a legal holiday. Intermediate Saturdays, Sundays, and legal holidays are excluded from the computation when the period of time prescribed or allowed is 7 days or less.

Summary decision.

The ALJ may render a summary decision disposing of all or part of a proceeding on the motion of any party to the proceeding, provided that there is no genuine issue as to any material fact and the party is entitled to summary decision as a matter of law.

Discovery.

(a) General. The parties are encouraged to engage in voluntary discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending proceeding. The provisions of the Federal Rules of Civil Procedure relating to discovery apply to the extent consistent with this part and except as otherwise provided by the ALJ or by waiver or agreement of the parties. The ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. These orders may include limitations on the scope, method, time and place of discovery, and provisions for protecting the confidentiality of classified or otherwise sensitive information, including Confidential Business Information (CBI) as defined by the Act.

(b) Interrogatories and requests for admission or production of documents. A party may serve on any party interrogatories, requests for admission, or requests for production of documents for inspection and copying, and a party concerned may apply to the ALJ for such enforcement or protective order as that party deems warranted with respect to such discovery. The service of a discovery request shall be made at least 20 days before the scheduled date of the hearing unless the ALJ specifies a shorter time period. Copies of interrogatories, requests for admission and requests for production of documents and responses thereto shall be served on all parties and a copy of the certificate of service shall be filed with the ALJ. Matters of fact or law of which admission is requested shall be deemed admitted unless, within a period designated in the request (at least 10 days after service, or within such additional time as the ALJ may allow), the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which admission is requested or setting forth in detail the reasons why the party to whom the request is directed cannot truthfully either admit or deny such matters.

(c) Depositions. Upon application of a party and for good cause shown, the ALJ may order the taking of the testimony of any person by deposition and the production of specified documents or materials by the person at the deposition. The application shall state the purpose of the deposition and set forth the facts sought to be established through the deposition.

(d) Enforcement. The ALJ may order a party to answer designated questions, to produce specified documents or things or to take any other action in response to a proper discovery request. If a party does not comply with such an order, the ALJ may make a determination or enter any order in the proceeding as the ALJ deems reasonable and appropriate. The ALJ may strike related charges or defenses in whole or in part or may take particular facts relating to the discovery request to which the party failed or refused to respond as being established for purposes of the proceeding in accordance with the contentions of the party seeking discovery. In addition, enforcement by any district court of the United States in which venue is proper may be sought as appropriate.

Subpoenas.

(a) Issuance. Upon the application of any party, supported by a satisfactory showing that there is substantial reason to believe that the evidence would not otherwise be available, the ALJ may issue subpoenas to any person requiring the attendance and testimony of witnesses and the production of such books, records or other documentary or physical evidence for the purpose of the hearing, as the ALJ deems relevant and material to the proceedings, and reasonable in scope. Witnesses shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contempt, challenge or refusal to obey a subpoena served upon any person pursuant to this paragraph, any district court of the United States, in which venue is proper, has jurisdiction to issue an order requiring any such person to comply with such subpoena. Any failure to obey such order of the court is punishable by the court as a contempt thereof.

(b) Service. Subpoenas issued by the ALJ may be served by any of the methods set forth in § 719.8(b) of the CWCR.

(c) Timing. Applications for subpoenas must be submitted at least 10 days before the scheduled hearing or Start Printed Page 24967deposition, unless the ALJ determines, for good cause shown, that extraordinary circumstances warrant a shorter time.

Matters protected against disclosure.

(a) Protective measures. The ALJ may limit discovery or introduction of evidence or issue such protective or other orders as in the ALJ's judgment may be needed to prevent undue disclosure of classified or sensitive documents or information, including Confidential Business Information as defined by the Act. Where the ALJ determines that documents containing classified or sensitive matter must be made available to a party in order to avoid prejudice, the ALJ may direct the other party to prepare an unclassified and nonsensitive summary or extract of the documents. The ALJ may compare the extract or summary with the original to ensure that it is supported by the source document and that it omits only so much as must remain undisclosed. The summary or extract may be admitted as evidence in the record.

(b) Arrangements for access. If the ALJ determines that the summary procedure outlined in paragraph (a) of this section is unsatisfactory, and that classified or otherwise sensitive matter must form part of the record in order to avoid prejudice to a party, the ALJ may provide the parties opportunity to make arrangements that permit a party or a representative to have access to such matter without compromising sensitive information. Such arrangements may include obtaining security clearances or giving counsel for a party access to sensitive information and documents subject to assurances against further disclosure, including a protective order, if necessary.

Prehearing conference.

(a) On the ALJ's own motion, or on request of a party, the ALJ may direct the parties to participate in a prehearing conference, either in person or by telephone, to consider:

(1) Simplification of issues;

(2) The necessity or desirability of amendments to pleadings;

(3) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or

(4) Such other matters as may expedite the disposition of the proceedings.

(b) The ALJ may order the conference proceedings to be recorded electronically or taken by a reporter, transcribed and filed with the ALJ.

(c) If a prehearing conference is impracticable, the ALJ may direct the parties to correspond with the ALJ to achieve the purposes of such a conference.

(d) The ALJ will prepare a summary of any actions agreed on or taken pursuant to this section. The summary will include any written stipulations or agreements made by the parties.

Hearings.

(a) Scheduling. Upon receipt of a written and dated request for a hearing, the ALJ shall, by agreement with all the parties or upon notice to all parties of at least 30 days, schedule a hearing. All hearings will be held in Washington, DC, unless the ALJ determines, for good cause shown, that another location would better serve the interest of justice.

(b) Hearing procedure. Hearings will be conducted in a fair and impartial manner by the ALJ. All hearings will be closed, unless the ALJ for good cause shown determines otherwise. The rules of evidence prevailing in courts of law do not apply, and all evidentiary material deemed by the ALJ to be relevant and material to the proceeding and not unduly repetitious will be received and given appropriate weight, except that any evidence of settlement which would be excluded under Rule 408 of the Federal Rules of Evidence is not admissible. Witnesses will testify under oath or affirmation, and shall be subject to cross-examination.

(c) Testimony and record. (1) A verbatim record of the hearing and of any other oral proceedings will be taken by reporter or by electronic recording, and filed with the ALJ. If any party wishes to obtain a written copy of the transcript, that party shall pay the costs of transcription. The parties may share the costs if both wish a transcript.

(2) Upon such terms as the ALJ deems just, the ALJ may direct that the testimony of any person be taken by deposition and may admit an affidavit or declaration as evidence, provided that any affidavits or declarations have been filed and served on the parties sufficiently in advance of the hearing to permit a party to file and serve an objection thereto on the grounds that it is necessary that the affiant or declarant testify at the hearing and be subject to cross-examination.

(d) Failure to appear. If a party fails to appear in person or by counsel at a scheduled hearing, the hearing may nevertheless proceed. The party's failure to appear will not affect the validity of the hearing or any proceeding or action taken thereafter.

Procedural stipulations.

Unless otherwise ordered and subject to § 719.16 of the CWCR, a written stipulation agreed to by all parties and filed with the ALJ will modify the procedures established by this part.

Extension of time.

The parties may extend any applicable time limitation by stipulation filed with the ALJ before the time limitation expires, or the ALJ may, on the ALJ's own initiative or upon application by any party, either before or after the expiration of any applicable time limitation, extend the time , except that the requirement that a hearing be demanded within 15 days, and the requirement that a final agency decision be made within 30 days, may not be modified.

Post-hearing submissions.

All parties shall have the opportunity to file post-hearing submissions that may include findings of fact and conclusions of law, supporting evidence and legal arguments, exceptions to the ALJ's rulings or to the admissibility of evidence, and proposed orders and settlements.

Decisions.

(a) Initial decision. After considering the entire record in the case, the ALJ will issue an initial decision based on a preponderance of the evidence. The decision will include findings of fact, conclusions of law, and a decision based thereon as to whether the respondent has violated the Act. If the ALJ finds that the evidence of record is insufficient to sustain a finding that a violation has occurred with respect to one or more allegations, the ALJ shall order dismissal of the allegation(s) in whole or in part, as appropriate. If the ALJ finds that one or more violations have been committed, the ALJ shall issue an order imposing administrative sanctions.

(b) Factors considered in assessing penalties. In determining the amount of a civil penalty, the ALJ shall take into account the nature, circumstances, extent and gravity of the violation(s), and, with respect to the respondent, the respondent's ability to pay the penalty, the effect of a civil penalty on the respondent's ability to continue to do business, the respondent's history of prior violations, the respondent's degree of culpability, the existence of an internal compliance program, and such other matters as justice may require.

(c) Certification of initial decision. The ALJ shall immediately certify the initial decision and order to the Executive Director of the Office of Legal Adviser, U.S. Department of State, 2201 C Street, NW., Room 5519, Washington, DC 20520, to the Office of Chief Counsel Start Printed Page 24968at the address in § 719.8, and to the respondent, by personal delivery or overnight mail.

(d) Review of initial decision. The initial decision shall become the final agency decision and order unless, within 30 days, the Secretary of State modifies or vacates it, with or without conditions, in accordance with 22 CFR 103.8.

Settlement.

(a) Settlements before issuance of a NOVA. When the parties have agreed to a settlement of the case, the Director of the Office of Export Enforcement will recommend the settlement to the Secretary of State, forwarding a proposed settlement agreement and order, which, in accordance with 22 CFR 103.9(a), the Secretary of State will approve and sign if the recommended settlement is in accordance with applicable law.

(b) Settlements following issuance of a NOVA. The parties may enter into settlement negotiations at any time during the time a case is pending before the ALJ. If necessary, the parties may extend applicable time limitations or otherwise request that the ALJ stay the proceedings while settlement negotiations continue. When the parties have agreed to a settlement of the case, the Office of Chief Counsel will recommend the settlement to the Secretary of State, forwarding a proposed settlement agreement and order, which, in accordance with 22 CFR 103.9(b), the Secretary will approve and sign if the recommended settlement is in accordance with applicable law.

(c) Settlement scope. Any respondent who agrees to an order imposing any administrative sanction does so solely for the purpose of resolving the claims in the administrative enforcement proceeding brought under this part. This reflects the fact that the government officials involved have neither the authority nor the responsibility for initiating, conducting, settling, or otherwise disposing of criminal proceedings. That authority and responsibility are vested in the Attorney General and the Department of Justice.

(d) Finality. Cases that are settled may not be reopened or appealed.

Record for decision.

(a) The record. The transcript of hearings, exhibits, rulings, orders, all papers and requests filed in the proceedings, and, for purposes of any appeal under § 719.18 or under 22 CFR 103.8, the decision of the ALJ and such submissions as are provided for under § 719.18 or 22 CFR 103.8 will constitute the record and the exclusive basis for decision. When a case is settled, the record will consist of any and all of the foregoing, as well as the NOVA or draft NOVA, settlement agreement, and order.

(b) Restricted access. On the ALJ's own motion, or on the motion of any party, the ALJ may direct that there be a restricted access portion of the record for any material in the record to which public access is restricted by law or by the terms of a protective order entered in the proceedings. A party seeking to restrict access to any portion of the record is responsible, prior to the close of the proceeding, for submitting a version of the document(s) proposed for public availability that reflects the requested deletion. The restricted access portion of the record will be placed in a separate file and the file will be clearly marked to avoid improper disclosure and to identify it as a portion of the official record in the proceedings. The ALJ may act at any time to permit material that becomes declassified or unrestricted through passage of time to be transferred to the unrestricted access portion of the record.

(c) Availability of documents.(1) Scope. All NOVAs and draft NOVAs, answers, settlement agreements, decisions and orders disposing of a case will be displayed on the BIS Freedom of Information Act (FOIA) Web site, at http://www.bis.doc.gov/​foia, which is maintained by the Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce. This office does not maintain a separate inspection facility. The complete record for decision, as defined in paragraphs (a) and (b) of this section will be made available on request.

(2) Timing. The record for decision will be available only after the final administrative disposition of a case. Parties may seek to restrict access to any portion of the record under paragraph (b) of this section.

Payment of final assessment.

(a) Time for payment. Full payment of the civil penalty must be made within 30 days of the effective date of the order or within such longer period of time as may be specified in the order. Payment shall be made in the manner specified in the NOVA.

(b) Enforcement of order. The government party may, through the Attorney General, file suit in an appropriate district court if necessary to enforce compliance with a final order issued under the CWCR. This suit will include a claim for interest at current prevailing rates from the date payment was due or ordered.

(c) Offsets. The amount of any civil penalty imposed by a final order may be deducted from any sum(s) owed by the United States to a respondent.

Reporting a violation.

If a person learns that a violation of the Convention, the Act, or the CWCR has occurred or may occur, that person may notify: Office of Export Enforcement, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-4520, Washington, DC 20230; Tel: (202) 482-1208; Facsimile: (202) 482-0964.

End Part Start Part

PART 720—DENIAL OF EXPORT PRIVILEGES

720.1
Denial of export privileges for convictions under 18 U.S.C. 229.
720.2
Initiation of administrative action denying export privileges.
720.3
Final decision on administrative action denying export privileges.
720.4
Effect of denial.
Start Authority

Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Denial of export privileges for convictions under 18 U.S.C. 229.

Any person in the United States or any U.S. national may be denied export privileges after notice and opportunity for hearing if that person has been convicted under Title 18, Section 229 of the United States Code of knowingly:

(a) Developing, producing, otherwise acquiring, transferring directly or indirectly, receiving, stockpiling, retaining, owning, possessing, or using, or threatening to use, a chemical weapon; or

(b) Assisting or inducing, in any way, any person to violate paragraph (a) of this section, or attempting or conspiring to violate paragraph (a) of this section.

Initiation of administrative action denying export privileges.

(a) Notice. BIS will notify any person convicted under Section 229, Title 18, United States Code, of BIS's intent to deny that person's export privileges. The notification letter shall reference the person's conviction, specify the number of years for which BIS intends to deny export privileges, set forth the statutory and regulatory authority for the action, state whether the denial order will be standard or non-standard pursuant to Supplement No. 1 to part 764 of the Export Administration Regulations (15 CFR parts 730 through 799), and provide that the person may request a hearing before the Administrative Law Judge within 30 days from the date of the notification letter. Start Printed Page 24969

(b) Waiver. The failure of the notified person to file a request for a hearing within the time provided constitutes a waiver of the person's right to contest the denial of export privileges that BIS intends to impose.

(c) Order of Assistant Secretary. If no hearing is requested, the Assistant Secretary for Export Enforcement will order that export privileges be denied as indicated in the notification letter.

Final decision on administrative action denying export privileges.

(a) Hearing. Any hearing that is granted by the ALJ shall be conducted in accordance with the procedures set forth in § 719.14 of the CWCR.

(b) Initial decision and order. After considering the entire record in the proceeding, the ALJ will issue an initial decision and order, based on a preponderance of the evidence. The ALJ may consider factors such as the seriousness of the criminal offense that is the basis for conviction, the nature and duration of the criminal sanctions imposed, and whether the person has undertaken any corrective measures. The ALJ may dismiss the proceeding if the evidence is insufficient to sustain a denial of export privileges, or may issue an order imposing a denial of export privileges for the length of time the ALJ deems appropriate. An order denying export privileges may be standard or non-standard, as provided in Supplement No. 1 to part 764 of the Export Administration Regulations (15 CFR parts 730 through 799). The initial decision and order will be served on each party, and will be published in the Federal Register as the final decision of BIS 30 days after service, unless an appeal is filed in accordance with paragraph (c) of this section.

(c) Grounds for appeal. (1) A party may, within 30 days of the ALJ's initial decision and order, petition the Under Secretary, Bureau of Industry and Security, for review of the initial decision and order. A petition for review must be filed with the Office of Under Secretary, Bureau of Industry and Security, Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, and shall be served on the Office of Chief Counsel for Industry and Security or on the respondent. Petitions for review may be filed only on one or more of the following grounds:

(i) That a necessary finding of fact is omitted, erroneous or unsupported by substantial evidence of record;

(ii) That a necessary legal conclusion or finding is contrary to law;

(iii) That prejudicial procedural error occurred; or

(iv) That the decision or the extent of sanctions is arbitrary, capricious or an abuse of discretion.

(2) The appeal must specify the grounds on which the appeal is based and the provisions of the order from which the appeal was taken.

(d) Appeal procedure. The Under Secretary, Bureau of Industry and Security, normally will not hold hearings or entertain oral arguments on appeals. A full written statement in support of the appeal must be filed with the appeal and be simultaneously served on all parties, who shall have 30 days from service to file a reply. At his/her discretion, the Under Secretary may accept new submissions, but will not ordinarily accept those submissions filed more than 30 days after the filing of the reply to the appellant's first submission.

(e) Decisions. The Under Secretary's decision will be in writing and will be accompanied by an order signed by the Under Secretary, Bureau of Industry and Security, giving effect to the decision. The order may either dispose of the case by affirming, modifying or reversing the order of the ALJ, or may refer the case back to the ALJ for further proceedings. Any order that imposes a denial of export privileges will be published in the Federal Register.

Effect of denial.

Any person denied export privileges pursuant to this part shall be considered a “person denied export privileges” for purposes of the Export Administration Regulations (EAR) (15 CFR parts 730 through 799). Orders denying export privileges pursuant to Parts 764 and 766 of the EAR are published in the Federal Register when they are issued and are legally controlling documents in accordance with their terms. BIS maintains unofficial compilations of persons denied export privileges on its Web site.

End Part Start Part

PART 721—INSPECTION OF RECORDS AND RECORDKEEPING

721.1
Inspection of records.
721.2
Recordkeeping.
721.3
Destruction or disposal of records.
Start Authority

Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

End Authority
Inspection of records.

Upon request by BIS or any other agency of competent jurisdiction, you must permit access to and copying of any record relating to compliance with the requirements of the CWCR. This requires that you make available the equipment and, if necessary, knowledgeable personnel for locating, reading, and reproducing any record.

Recordkeeping.

(a) Requirements. Each person, facility, plant site or trading company required to submit a declaration, report, or advance notification under parts 712 through 715 of the CWCR must retain all supporting materials and documentation used by a unit, plant, facility, plant site or trading company to prepare such declaration, report, or advance notification to determine production processing, consumption, export or import of chemicals. In the event that a declared facility is sold, the previous owner of the facility must retain all such supporting materials and documentation that were not transferred to the current owner of the facility (e.g., as part of the contract involving the sale of the facility)—otherwise, the current owner of the facility is responsible for retaining such supporting materials and documentation. Whenever the previous owner of a declared facility retains such supporting materials and documentation, the owner must inform BIS of any subsequent change in address or other contact information, so that BIS will be able to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to inspection activities involving the facility (see § 716.4 of the CWCR).

(b) Five year retention period. All supporting materials and documentation required to be kept under paragraph (a) of this section must be retained for five years from the due date of the applicable declaration, report, or advance notification, or for five years from the date of submission of the applicable declaration, report or advance notification, whichever is later. Due dates for declarations, reports and advance notifications are provided in parts 712 through 715 of the CWCR.

(c) Location of records. If a facility is subject to inspection under part 716 of the CWCR, records retained under this section must be maintained at the facility or must be accessible electronically at the facility for purposes of inspection of the facility by Inspection Teams. If a facility is not subject to inspection under part 716 of the CWCR, records retained under this section may be maintained either at the facility subject to a declaration, report, or advance notification requirement, or at a remote location, but all records must be accessible to any authorized agent, official or employee of the U.S. Government under § 721.1 of the CWCR.

(d) Reproduction of original records. (1) You may maintain reproductions Start Printed Page 24970instead of the original records provided all of the requirements of paragraph (b) of this section are met.

(2) If you must maintain records under this part, you may use any photostatic, miniature photographic, micrographic, automated archival storage, or other process that completely, accurately, legibly and durably reproduces the original records (whether on paper, microfilm, or through electronic digital storage techniques). The process must meet all of the following requirements, which are applicable to all systems:

(i) The system must be capable of reproducing all records on paper.

(ii) The system must record and be able to reproduce all marks, information, and other characteristics of the original record, including both obverse and reverse sides (unless blank) of paper documents in legible form.

(iii) When displayed on a viewer, monitor, or reproduced on paper, the records must exhibit a high degree of legibility and readability. For purposes of this section, legible and legibility mean the quality of a letter or numeral that enable the observer to identify it positively and quickly to the exclusion of all other letters or numerals. Readable and readability mean the quality of a group of letters or numerals being recognized as complete words or numbers.

(iv) The system must preserve the initial image (including both obverse and reverse sides, unless blank, of paper documents) and record all changes, who made them and when they were made. This information must be stored in such a manner that none of it may be altered once it is initially recorded.

(v) You must establish written procedures to identify the individuals who are responsible for the operation, use and maintenance of the system.

(vi) You must keep a record of where, when, by whom, and on what equipment the records and other information were entered into the system.

(3) Requirements applicable to a system based on digital images. For systems based on the storage of digital images, the system must provide accessibility to any digital image in the system. The system must be able to locate and reproduce all records according to the same criteria that would have been used to organize the records had they been maintained in original form.

(4) Requirements applicable to a system based on photographic processes. For systems based on photographic, photostatic, or miniature photographic processes, the records must be maintained according to an index of all records in the system following the same criteria that would have been used to organize the records had they been maintained in original form.

Destruction or disposal of records.

If BIS or other authorized U.S. government agency makes a formal or informal request for a certain record or records, such record or records may not be destroyed or disposed of without the written authorization of the requesting entity.

End Part Start Part

PART 722—INTERPRETATIONS [RESERVED]

Note:

This part is reserved for interpretations of parts 710 through 721 and also for applicability of decisions by the Organization for the Prohibition of Chemical Weapons (OPCW).

End Part Start Part

PARTS 723-729 [RESERVED]

End Part Start Signature

Dated: April 12, 2006.

Matthew S. Borman,

Deputy Assistant Secretary for Export Administration.

End Signature End Supplemental Information

Footnotes

1.  The maximum civil penalty allowed under the International Emergency Economic Powers Act is $11,000 for any violation committed on or after October 23, 1996 (15 CFR 6.4(a)(3)).

Back to Citation

2.  Alternatively, sanctions may be imposed under 18 U.S.C. 3571, a criminal code provision that establishes a maximum criminal fine for a felony that is the greatest of: (1) The amount provided by the statute that was violated; (2) an amount not more than $250,000 for an individual, or not more than $500,000 for an organization; or (3) an amount based on gain or loss from the offense.

Back to Citation

[FR Doc. 06-3747 Filed 4-26-06; 8:45 am]

BILLING CODE 3510-33-P