Chemical Weapons Convention Regulations

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 Export

Administration is proposing to establish the Chemical Weapons

Convention Regulations (CWCR) to implement provisions of the Convention

affecting U.S. industry and other U.S. persons. The proposed 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.

DATES: Comments must be received by August 20, 1999.

ADDRESSES: Written comments should be sent to Nancy Crowe, Regulatory

Policy Division, Office of Exporter Services, Bureau of Export

Administration, Room 2705, 14th Street and Pennsylvania Avenue, N.W.,

Washington, D.C. 20230.

FOR FURTHER INFORMATION CONTACT: For questions of a general or

regulatory nature, contact Nancy Crowe , Regulatory Policy Division,

telephone: (202) 482-2440 or e-mail: [email protected] For program

information, contact Charles Guernieri, Director, Treaty Compliance

Division, Office of Chemical and Biological Controls and Treaty

Compliance, telephone: (202) 501-7876; for legal questions, contact

Cecil Hunt, Deputy Chief Counsel, Office of the Chief Counsel for

Export Administration, telephone (202) 482-5301.

SUPPLEMENTARY INFORMATION:

Background

Chemical Weapons Convention

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 Convention, which entered

into force on April 29, 1997, is an arms control treaty with

significant non-proliferation aspects. As such, the Convention bans the

development, production, stockpiling or use of chemical weapons and

prohibits States Parties from assisting or encouraging anyone to engage

in a prohibited activity. The Convention 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 non-proliferation objectives, the

Convention also establishes a comprehensive verification scheme and

requires the declaration and inspection of facilities that produce,

process or consume certain listed or ``Scheduled'' chemicals, many of

which have significant commercial applications. The Convention also

requires States Parties to report imports and exports and to impose

import and export 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 Convention, including the United States, have agreed to this

verification scheme to provide transparency and to ensure that no State

Party to the Convention is engaging in prohibited activities.

Specifically, the Convention requires States Parties to declare all

facilities that produce Schedule 1 or Schedule 3 chemicals in

quantities exceeding specified declaration thresholds, or that produce,

process or consume Schedule 2 chemicals in quantities exceeding

specified declaration thresholds. Schedule 1, 2 and 3 chemicals are set

forth in the Convention's Schedules of Chemicals and have been selected

for these Schedules based on degree of toxicity, history of use in

chemical warfare and commercial utility. The Convention also requires

States Parties to declare facilities that produce ``Unscheduled

Discrete Organic Chemicals'' (``UDOCs'') in quantities exceeding

specified thresholds. The requirement to declare UDOC facilities is

intended to identify facilities capable of producing chemical warfare

agents or precursors.

Certain ``declared'' facilities will also be subject to routine on-

site inspections by international inspectors from the Convention's

implementing body, the Organization for the Prohibition of Chemical

Weapons (OPCW). All declared Schedule 1 facilities are subject to

routine inspection. Declared Schedule 2 facilities are subject to

inspection if they produce, process or consume Schedule 2 chemicals in

quantities exceeding specified inspection thresholds. Declared Schedule

3 facilities are subject to inspection if they produce Schedule 3

chemicals in quantities exceeding a specified inspection threshold.

Facilities producing UDOCs in quantities exceeding a specified

threshold will be subject to inspection, beginning in 2001, unless the

Conference of States Parties decides otherwise. With a few exceptions,

inspection thresholds are higher than declaration thresholds.

The Convention also provides for challenge inspections of any

facility or location under the jurisdiction of any State Party.

Challenge inspections are intended to resolve questions of possible

non-compliance with the Convention.

Finally, the Convention requires States Parties to provide data on

imports and exports of Scheduled chemicals. States Parties must also,

among other things, prohibit exports of Schedule 1 chemicals to non-

States Parties, require advance notification of imports and exports of

Schedule 1 chemicals, require End-Use Certificates for exports of

Schedule 2 and 3 chemicals to non-States Parties, and ban the import

from or export to non-States Parties of Schedule 2 chemicals after

April 28, 2000.

Application of CWC Requirements to U.S. Commercial Entities and

Individuals

The Chemical Weapons Convention Implementation Act of 1998

(``Act'') (Pub. L. 105-277, Division I), 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. Executive

Order No. 13128, among other things, 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 Convention, consistent with the

Act. The Department of Commerce will carry out CWC import restrictions

under the authority of the International Emergency Economic Powers Act,

the National Emergencies Act and Executive Order 12938, as revised by

E.O. No. 13128.

[[Page 39195]]

The Departments of State and Commerce are implementing CWC export

restrictions under their respective export control authorities.

Other State and Commerce Department Regulations Implementing

Requirements of the Chemical Weapons Convention

In addition to these proposed Chemical Weapons Convention

Regulations, the Department of State is publishing a separate proposed

rule on the taking of samples during on-site inspections in the United

States and the enforcement provisions for violations of the reporting

and inspection requirements set forth in the Act, and also maintains

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

Further, on May 18, 1999, BXA published an interim rule (64 FR

27138) that implemented the following export control provisions of the

CWC:

--Annual reporting of all exports of Schedule 1 chemicals;

--Advance notification of all exports of Schedule 1 chemicals;

--Prohibition on exports of Schedule 1 chemicals subject to Commerce

Department jurisdiction to non-States Parties;

--Prohibition on all reexports of Schedule 1 chemicals subject to

Commerce Department jurisdiction;

--Prohibition on exports of Schedule 2 chemicals subject to Commerce

Department jurisdiction to non-States Parties after April 28, 2000;

--Requirement that exporters obtain an End-Use Certificate prior to

exporting any Schedule 2 or 3 chemicals to a non-State Party; and

--License requirements for the export of Schedule 1 chemicals under

Commerce Department jurisdiction to all destinations, including Canada.

Note that all existing export license requirements that apply to CWC

Scheduled chemicals and UDOCs subject to Commerce Department

jurisdiction continue in effect. Further, the new CWC reporting

requirements, such as the End-Use Certificate and prior notification

requirements, are in addition to existing export license and supporting

documentation requirements for exports of chemicals subject to Commerce

Department or State Department export licensing jurisdiction.

The Chemical Weapons Convention Regulations (CWCR)

This proposed rule implements reporting and inspection requirements

and import restrictions. The CWCR:

--Apply to all U.S. persons and facilities in the United States, except

for Department of Defense and Department of Energy facilities and other

U.S. Government agencies that notify the United States National

Authority of their decision to be excluded from the CWCR (Such entities

are referred to as ``persons and facilities subject to the CWCR'').

United States Government facilities are those owned by or leased to the

U.S. Government, including facilities that are contractor-operated.

--Set forth the declaration and other reporting requirements that

affect persons and facilities subject to the CWCR. The reporting

requirements of this proposed rule are consistent with the procedural

provisions of section 401(a) of the Act. Section 401(a) of the Act

requires submission to the Director of the USNA such reports as the

USNA may reasonably require to provide to the OPCW, pursuant to

subparagraph 1(a) of the Convention's Annex on Confidentiality.

Subparagraph 1(a) of the Confidentiality Annex provides that the OPCW

shall require only the minimum amount of information and data necessary

for the timely and efficient conduct by the OPCW of its

responsibilities under the Convention. As required by Section 401(a) of

the Act, the USNA, in coordination with the CWC interagency group, has

determined that the reports required by the CWCR are those reasonably

required to be provided to the OPCW. Declarations, notifications and

other reports required under the CWCR will be due to the Department of

Commerce at specified dates or within specified time frames for

verification, aggregation and submission to the Director of the USNA.

The USNA will transmit United States declarations, reports and

notifications to the OPCW located in the Hague, Netherlands.

--Require access for on-site inspections.

--Prohibit imports of Schedule 2 chemicals from non-States Parties

after April 28, 2000.

--Contain recordkeeping requirements and administrative procedures and

penalties related to violations of reporting and inspection

requirements and importation restrictions.

--Implement section 211 of the Act, which authorizes revocation of the

export privileges of any person determined to have violated the

chemical weapons provisions of 18 U.S.C. Sec. 229.

Reporting Requirements

Declaration Requirements

Facilities required to submit ``declarations'' are those that

produce, process or consume certain chemicals in quantities that exceed

specified thresholds. Four types of declarations are due to BXA when

required by parts 712 through 715 of the CWCR: initial declarations,

annual declarations on past activities, annual declarations on

anticipated activities, and a one-time declaration of facilities that

produced Schedule 2 or 3 chemicals for chemical weapons purposes at any

time since January 1, 1946. Declared Schedule 1, 2 and 3 facilities

will provide import and export data on declared chemicals as part of

their annual declarations. The United States will transmit data on

declared facilities to the OPCW. Such data will also be compiled to

establish the U.S. national aggregate on production, processing and

consumption of relevant chemicals. Import and export data contained in

declarations will also be compiled and added to import and export

information obtained from other reports to establish the U.S. national

aggregate declaration on imports and exports of certain chemicals.

Initial declarations. Initial declarations are one-time

declarations that will be due to BXA within 90 days after the date of

publication of the CWCR as a final rule. Facilities that produced more

than 100 grams aggregate of Schedule 1 chemicals in calendar year 1997

must provide a technical description of their facilities. Facilities

that produced, processed or consumed more than specified quantities of

a Schedule 2 chemical in any of calendar years 1994, 1995 or 1996 must

provide data on activities involving this Schedule 2 chemical that

occurred in each of calendar years 1994, 1995, and 1996. Facilities

that produced more than 30 metric tons of a Schedule 3 chemical in

calendar year 1996 must provide data on activities involving this

Schedule 3 chemical that occurred in 1996. Facilities that produced

more than specified quantities of UDOCs in calendar year 1996 must

provide ranges of production for 1996.

Annual declarations on past activities. Facilities that produced

more than 100 grams aggregate of Schedule 1 chemicals, more than 30

metric tons of a Schedule 3 chemical, or more than specified quantities

of UDOCs in the previous calendar year, must submit an annual

declaration on past activities. Facilities that produced, processed or

consumed more than specified quantities of a Schedule 2 chemical in any

of the three previous calendar years must submit an annual declaration

on past activities for activities during the previous year. Annual

declarations on past activities for calendar years 1997

[[Page 39196]]

and 1998 will be due to the Department of Commerce within 90 days of

the publication of the CWCR as a final rule.

Annual declarations on anticipated activities. Facilities that

anticipate engaging in production of Schedule 1 or Schedule 3 chemicals

or production, processing or consumption of Schedule 2 chemicals above

specified thresholds during the next calendar year must submit an

annual declaration on anticipated activities. The due date for annual

declarations on anticipated activities will be determined when the CWCR

is published as a final rule.

One time declaration of past production for chemical weapons

purposes. Facilities that have produced Schedule 2 or Schedule 3

chemicals anytime since January 1, 1946, for chemical weapons purposes

must submit a declaration within 90 days after publication of the CWCR

as a final rule.

Amended declarations. The CWCR also provide for submission of

``amended declarations'' to correct errors and to declare additionally

planned activities after the submission of the annual declarations of

anticipated activities.

Notification Requirements. Facilities that intend to import or

export Schedule 1 chemicals to States Parties or to begin production of

Schedule 1 chemicals in excess of 100 grams aggregate per year must

submit prior notifications of these activities. These notifications

will be forwarded to the OPCW.

Other Reporting Requirements

U.S. persons and facilities subject to the CWCR that have imported

or exported a Scheduled chemical but have not produced, processed, or

consumed declarable quantities of that chemical may nevertheless have

an import or export reporting requirement. The United States National

Authority will NOT forward facility-specific information contained in

these reports to the OPCW. BXA will include the import and export data

in the compilation of the U.S. national aggregate declaration on

imports and exports of relevant chemicals.

Initial reports on imports and exports. Initial reports for imports

and exports are required for imports and exports of Schedule 2 and

Schedule 3 chemicals above certain threshold quantities during calendar

year 1996.

Annual reports on imports and exports. Annual reports for imports

and exports are required for all imports and exports of Schedule 1

chemicals during the previous calendar year, and for imports and

exports of Schedule 2 and 3 chemicals above certain threshold

quantities during the previous calendar year, beginning with 1997.

The first declaration and report package due to the Department of

Commerce will include the initial declaration plus the annual

declarations for calendar years 1997 and 1998 activities, and may also

include the annual declaration on activities anticipated for calendar

year 2000. Certain facilities may also need to submit the one-time

declaration on past production of Schedule 2 or Schedule 3 chemicals

for chemical weapons purposes. Handbooks containing necessary

multipurpose forms for declarations and reports will be available by

mail and through the Internet. If there are discrepancies between the

CWCR and the handbook (including instructions and forms), the CWCR

prevail.

On-Site Inspection Requirements

This proposed rule also sets forth the requirements and procedures

for on-site inspections of U.S. facilities subject to the CWCR,

consistent with sections 301 to 309 of the Act. On-site inspections

will be conducted by inspectors from the OPCW's Technical Secretariat.

The Department of Commerce will lead the U.S. host team accompanying

and escorting the inspectors during inspections.

Types of inspections. There are two major kinds of inspections: (1)

initial and subsequent (``routine,'' under the Act) inspections of

declared facilities whose level of production, processing or

consumption of specified chemicals makes them subject to such

verification as a routine matter; and (2) ``challenge'' inspections of

any facility or location in the United States based on a request made

by another State Party to clarify and resolve any questions concerning

possible non-compliance with the Convention.

Notification and consent procedures. Pursuant to section 304 of the

Act, before an inspection may take place, the USNA must authorize each

inspection of a facility or location in the United States and provide

actual written notification of each inspection to the owner and

operator or other person in charge of the facility. For routine or

challenge inspections of declared facilities, the USNA will provide

such written notification within 6 hours of receiving notification from

the OPCW Technical Secretariat or as soon as possible thereafter. The

Department of Commerce will provide preliminary notice to facilities to

be inspected. The Department of Commerce will also obtain an

administrative warrant, as provided for by section 305 of the Act and

in Executive Order No. 13128, if the owner or person in charge of the

facility does not consent to the inspection.

Part-by-Part Analysis

The Chemical Weapons Convention Regulations will include 21 parts,

as follows:

Part 710--General Information and Overview of the CWCR

This part includes general information about the Convention,

definitions of terms used in the CWCR, an overview of Scheduled

chemicals and examples of affected industries. States Parties to the

Convention are listed in Supplement No. 1 to part 710 of the CWCR. This

part also briefly describes the declaration and inspection provisions

of the Convention.

Part 711--General Information Regarding Reporting Requirements

This part provides an overview of declaration and other reporting

requirements, who is responsible for declarations and reports, and

where to get assistance, forms and handbooks. The Convention requires

an initial declaration and report and subsequent annual declarations

and reports for activities involving specified amounts of certain

chemicals. If, after reviewing parts 712 through 715, you determine

that you have declaration and/or reporting requirements, you may obtain

the appropriate forms by contacting the Bureau of Export Administration

(BXA). Note that in instances where a declaration or report is

required, the operator of a facility required to declare or report

under the CWCR is responsible for the submission of all required forms

in accordance with all applicable provisions of the CWCR. Also note

that the Act defines and provides for the protection of confidential

business information obtained pursuant to the CWCR. A supplement to

this part includes information on protection of confidential business

information.

Part 712--Activities Involving Schedule 1 Chemicals

This part prohibits imports of Schedule 1 chemicals from non-States

Parties and imports from States Parties for purposes other than

research, medical, pharmaceutical, or protective purposes. (Part 712

also cross-references similar export restrictions on Schedule 1

chemicals set forth in the Export Administration Regulations.) This

part also describes declaration and other reporting requirements for

activities involving Schedule 1 chemicals, including production, use

(consumption), imports, exports,

[[Page 39197]]

domestic transfers and storage of any quantity of Schedule 1 chemicals.

This part provides that facilities that produce more than 100 grams of

Schedule 1 chemicals in a calendar year are considered Schedule 1

``declared'' facilities. Facility-specific information on ``declared

facilities'' will be forwarded to the Organization for the Prohibition

of Chemical Weapons (OPCW) and all Schedule 1 ``declared'' facilities

will be subject to routine on-site inspection by the OPCW. Finally,

this part requires advance notification of all exports and imports of

Schedule 1 chemicals to or from other States Parties and changes in

production of Schedule 1 chemicals. Note that BXA published an interim

rule in the Federal Register on May 18, 1999 (64 FR 27138), amending

the Export Administration Regulations (EAR) to implement the export

control provisions of the CWC that are subject to Department of

Commerce jurisdiction. The EAR also requires prior notification of all

exports of Schedule 1 chemicals and annual reports of exports of such

chemicals. Upon publication of the CWCR as a final rule, the EAR will

be amended to remove the duplicate advance notification and other

reporting provisions for exports of Schedule 1 chemicals. The export

license requirements pertaining to Schedule 1 chemicals, and other

scheduled chemicals, will continue to be set forth in the EAR. Schedule

1 chemicals are included in Supplement No. 1 to this part.

Part 713--Activities Involving Schedule 2 Chemicals

This part prohibits imports of any Schedule 2 chemical on or after

April 29, 2000, from any country that is not a party to the Convention.

(Part 713 cross-references similar export restrictions on Schedule 2

chemicals in the EAR.) This part also describes declaration and other

reporting requirements for activities involving Schedule 2 chemicals,

including production of any amount of a Schedule 2 chemical at any time

since January 1, 1946, for chemical weapons purposes; production,

processing, or consumption of Schedule 2 chemicals in excess of

specified quantities; and imports and exports of a Schedule 2 chemical

in excess of specified quantities. Further, this part requires

declarations on anticipated production, processing, or consumption in

the next calendar year of a Schedule 2 chemical in excess of specified

quantities as well as any changes to the declarations on anticipated

activities that results in an increase of anticipated production,

processing or consumption by 20% or more. Declaration requirements

apply also to Schedule 2 chemicals contained in mixtures. Note,

however, that the quantity of a Schedule 2 chemical contained in a

mixture must be counted for declaration purposes only if the

concentration of the Schedule 2 chemical in the mixture is:

--10% or more by volume or by weight, whichever yields the lesser

percent, for activities involving either production or consumption of a

mixture containing a Schedule 2 chemical; or

--30% or more by volume or by weight, whichever yields the lesser

percent, for activities involving the processing of a mixture

containing a Schedule 2 chemical.

If the mixture contains more than the stated percentage concentration

for the activity (i.e., more than 10% for production or consumption

activities or more than 30% for processing activities), you must count

only the amount (weight) of the Schedule 2 chemical in the mixture, not

the total weight of the mixture. Schedule 2 chemicals are included in

Supplement No. 1 to this part.

Part 714--Activities Involving Schedule 3 Chemicals

This part describes declaration and other reporting requirements

for activities involving Schedule 3 chemicals, including production of

any amount of a Schedule 3 chemical at any time since January 1, 1946,

for chemical weapons purposes; production of Schedule 3 chemical in

excess of specified quantities; and imports and exports of a Schedule 3

chemical in excess of specified quantities. Further, this part requires

declaration of anticipated production in the next calendar year of a

Schedule 3 chemical in excess of specified quantities as well as any

changes to the declaration of anticipated activities that result in an

increase of anticipated production by 20% or more. Declaration

requirements apply also to Schedule 3 chemicals contained in mixtures.

Note, however, that the quantity of a Schedule 3 chemical contained in

a mixture must be counted for declaration purposes 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. Schedule 3

chemicals are included in Supplement No. 1 to this part.

Part 715--Activities Involving Unscheduled Discrete Organic Chemicals

(UDOCs)

This part describes declaration requirements for the production of

UDOCs in excess of specified quantities. However, note that

declarations are not required for chemicals and chemical mixtures

produced through a biological or bio-mediated process; polymers and

oligomers; certain synthetic mixtures of organic chemicals; unscheduled

discrete organic chemicals produced coincidentally as byproducts of a

manufacturing or production process that are not isolated or captured

for use or sale during the process and are routed to, or escape from,

the waste stream of a stack, incinerator, or wastewater treatment

system or any other waste stream; hydrocarbons; or explosives.

Part 716--Inspections

This part implements the inspection provisions of the Convention,

consistent with the Act. It describes notification procedures, the

responsibilities of the Department of Commerce as host and escort for

inspections, types of inspections, and scope and conduct of

inspections. The USNA will provide written notification to the owner

and operator, occupant or agent in charge of the premises to be

inspected. The Department of Commerce will provide preliminary notice

to the point of contact identified in declaration forms submitted by

the facility. This part also describes the duration and frequency of

inspections, and the role of a facility agreement. A facility agreement

is a site-specific agreement between the U.S. Government and the

Organization for the Prohibition of Chemical Weapons. The purpose for a

facility agreement is to define the inspection scope and procedures for

a given facility under the Convention and to facilitate future

inspections of the facility by enhancing efficiency and predictability

and reducing preparation costs for the facility. The U.S. Government

and the OPCW will begin negotiating such facility agreements during the

initial inspections of facilities that require facility agreements

pursuant to the Convention. Supplement Nos. 2 and 3 include model

facility agreements for Schedule 1 and Schedule 2 facilities,

respectively.

Part 717--Clarification and Challenge Inspection Procedures

This part describes clarification procedures under the Convention

and the scope and purpose of on-site challenge inspections. On-site

challenge

[[Page 39198]]

inspections may be conducted at any facility or location in the United

States for the sole purpose of clarifying and resolving any questions

concerning possible non-compliance with the provisions of the CWC. The

USNA will provide written notification of a challenge inspection to the

owner and operator, occupant or agent in charge of the premises. The

Department of Commerce will provide preliminary notification to the

point of contact of a declared facility, or to the owner or occupant of

an facility that has not been declared under the declaration

requirements of the Convention.

Part 718--Interpretations

This part is reserved for future use. It will provide explanations

and examples for declaration requirements and other interpretations to

guide industry and other U.S. persons in determining obligations under

the CWCR.

Part 719--Enforcement

This part sets forth the civil and criminal penalties and

enforcement procedures that apply to violations of the reporting and

inspections requirements and provisions relating to the importation of

Schedule 1 and 2 chemicals.

Part 720--Denial of Export Privileges

This part sets forth the penalties and enforcement procedures that

apply to violations of 18 U.S.C. 229.

Part 721--Recordkeeping Requirements

This part includes the recordkeeping requirements of the CWCR,

including retention and reproduction requirements.

Comments on this proposed rule must be submitted to BXA by August

20, 1999. To aid in discussions between interested persons and the U.S.

Government on the requirements of this proposed rule, BXA will conduct

a seminar in Washington, D.C. prior to the expiration of the comment

period. Interested persons should contact the Office of Chemical and

Biological Controls and Treaty Compliance on (202) 501-7876 for

information concerning the seminar.

Rulemaking Requirements

1. This proposed rule has been determined to be significant for

purposes of E.O. 12866. BXA invites the public to comment on the extent

to which this rule complies with the principle stated in section

(1)(b)(12) of E.O. 12866 that agencies draft regulations that are

simple and easy to understand, with the goal of minimizing the

potential for uncertainty and litigation arising from such uncertainty.

Comments should be submitted to BXA by August 20, 1999, and sent to

Nancy Crowe, Regulatory Policy Division, Office of Exporter Services,

Bureau of Export Administration, Room 2705, 14th Street and

Pennsylvania Avenue, N.W., Washington, D.C. 20230.

2. Notwithstanding any other provision of law, no person is

required 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 (PRA), unless that collection of information displays a

currently valid OMB Control Number. This rule revises an existing

collection of information requirement subject to the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501 et seq.), which we have submitted

for approval to the Office of Management and Budget. The public

reporting burdens for the new collections of information are estimated

to average 9 hours for Schedule 1 Chemicals, 7.2 hours for Schedule 2

chemicals, 2.5 hours for Schedule 3 chemicals, 5.3 for Unscheduled

Discrete Organic Chemicals, and .17 hours for Schedule 1 notifications.

These estimates include the time required to complete the required

forms.

Comments are invited on (a) whether the collection of information

is necessary for the functions of the agency, including whether the

information shall have practical utility; (b) the accuracy of the

agency's estimate of the burden of the proposed collection of

information; (c) ways to enhance the quality, utility, and clarify of

the information to be collected; and (d) ways to minimize the burden of

the collection of information on respondents, including through the use

of automated collection techniques or other forms of information

technology. Send comments regarding these or any other aspects of the

collection of information to: Nancy Crowe, Regulatory Policy Division,

Bureau of Export Administration , U.S. Department of Commerce Room

2705, 14th Street and Pennsylvania Ave., NW, Washington, DC 20230.

3. This rule does not contain policies with Federalism implications

sufficient to warrant preparation of a Federalism assessment under

Executive Order 12612.

4. BXA has completed a Cost Benefit Analysis (CBA) pursuant to

Executive Order 12866 and an Initial Regulatory Flexibility Analysis

(IRFA) pursuant to 5 U.S.C. 603 for this proposed rule. A summary of

this IRFA follows. Copies of the CBA and the complete IRFA may be

obtained from Henry Gaston, Bureau of Export Administration Freedom of

Information Officer, Bureau of Export Administration Freedom of

Information Records Inspection Facility, Room 6883, Department of

Commerce, 14th Street and Pennsylvania Avenue, NW, Washington, DC 20230

or by calling (202) 482-0500. BXA invites the public to comment on the

CBA and the IRFA. Send comments to Nancy Crowe, Regulatory Policy

Division, Office of Exporter Services, Bureau of Export Administration,

Room 2705, 14th Street and Pennsylvania Avenue, N.W., Washington, D.C.

20230.

The IRFA identifies the Small Business Administration's (SBA) small

business size standards, in terms of number of employees, for

``Chemicals and Allied Products'' by four-digit Standard Industrial

Classification (SIC) codes. These SBA standards indicate that a ``small

business'' in the chemical industry can cover a range of sizes, from up

to 500 employees to up to 1,000 employees. The IRFA states that BXA

does not have information on which SIC code categories will include

companies that will be subject to the reporting, declaration or

inspection requirements of this proposed rule, and therefore, BXA is

unable to estimate with certainty the number of small businesses that

will be affected by the proposed rule. BXA anticipates some 2,000 firms

will be affected by the CWCR, and many of them may have no more than

500 employees, thus falling under the SBA generic definition of ``small

business''. However, BXA invites and encourages affected companies

commenting on this proposed rule to inform BXA of their size and their

SIC codes.

The IRFA reports BXA's estimate that compliance with the

requirements of this proposed rule will total approximately $377,654 to

gather and maintain relevant data and to fill out declarations, and

approximately $2,166,880 for inspections. The average cost of an

inspection, based on the assumption that 40 facilities will undergo

inpsections each year, is $54,150. The IRFA describes the expected

benefits to the United States of implementing the requirements of the

Convention, including increased national and economic security.

The IRFA explains that BXA's discretion in drafting the declaration

forms and formulating the reporting requirements is limited by the

Convention requirements. The OPCW has issued forms for States Parties

to use in submitting declarations. In drafting the declaration forms

for U.S. persons to use in drafting the CWCR, BXA has consistently made

the reporting requirements as narrow as possible to ensure that only

information required to

[[Page 39199]]

be ``declared'' to the OPCW set forth in the Convention is to be

reported to BXA. 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

information must be forwarded to the OPCW. In addition, there are

certain declaration requirements of the Convention that are subject to

interpretation. 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

such reporting requirements currently subject to ``national

discretion'', BXA has adopted the minimum requirements consistent with

a reasonable reading of the Convention, keeping in mind its purposes

and objectives.

5. Comments will be considered on provisions included in the

regulations as well as provisions or guidance which commenters believe

should be included in the regulations. The Department encourages

interested persons who wish to comment to do so at the earliest

possible time.

The period for submission of comments will close August 20, 1999.

The Department will consider all comments received before the close of

the comment period in developing final regulations. Comments received

after the end of the comment period will be considered, if possible,

but their consideration cannot be assured. The Department will not

accept public comments accompanied by a request that a part or all of

the material be treated confidentially because of its business

proprietary nature or for any other reason. The Department will return

such comments and materials to the person submitting the comments and

will not consider them in the development of final regulations. All

public comments on these regulations will be a matter of public record

and will be available for public inspection and copying. In the

interest of accuracy and completeness, the Department requires comments

in written form.

Oral comments must be followed by written memoranda, which will

also be a matter of public record and will be available for public

review and copying. Communications from agencies of the United States

Government or foreign governments will not be made available for public

inspection.

The public record concerning these regulations will be maintained

in the Bureau of Export Administration Freedom of Information Records

Inspection Facility, Room 6883, Department of Commerce, 14th Street and

Pennsylvania Avenue, N.W., Washington, DC 20230. Records in this

facility, including written public comments and memoranda summarizing

the substance of oral communications, may be inspected and copied in

accordance with regulations published in Part 4 of Title 15 of the Code

of Federal Regulations. Information about the inspection and copying of

records at the facility may be obtained from Henry Gaston, Bureau of

Export Administration Freedom of Information Officer, at the above

address or by calling (202) 482-0500.

List of Subjects

Part 710

Chemicals, Exports, Foreign Trade, Imports, Treaties.

Part 711

Chemicals, Confidential business information, Reporting and

recordkeeping requirements.

Part 712

Chemicals, Exports, Foreign Trade, Imports, Reporting and

recordkeeping requirements.

Part 713

Chemicals, Exports, Foreign Trade, Imports, Reporting and

recordkeeping requirements.

Part 714

Chemicals, Exports, Foreign Trade, Imports, Reporting and

recordkeeping requirements.

Part 715

Chemicals, Exports, Foreign Trade, Imports, Reporting and

recordkeeping requirements.

Part 716

Chemicals, Confidential business information, Reporting and

recordkeeping requirements, Search warrant, Treaties.

Part 717

Chemicals, Confidential business information, Reporting and

recordkeeping requirements, Search warrant, Treaties.

Part 719

Administrative proceedings, Exports, Imports, Penalties,

Violations.

Part 720

Penalties, violations.

Part 721

Reporting and recordkeeping requirements.

1. In 15 CFR, Chapter VII, Subchapter B is designated as Chemical

Weapons Convention Regulations.

2. In 15 CFR, Subchapter B, Parts 710 through 721 are added to read

as follows:

PART 710--GENERAL INFORMATION AND OVERVIEW OF THE CHEMICAL WEAPONS

CONVENTION REGULATIONS (CWCR)

Sec.

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.

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

Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR

36703.

Sec. 710.1 Definitions of terms used in the Chemical Weapons

Convention Regulations (CWCR).

The following are definitions of terms used in the CWCR (parts 710

through 721 of this subchapter):

Bureau of Export Administration (BXA). Means the Bureau of Export

Administration of the United States Department of Commerce, including

the Office of Export Administration and the Office of Export

Enforcement.

Chemical Weapon. Means the following, together or separately:

(a) A toxic chemical and its 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;

(b) A munition or device, specifically designed to cause death or

other harm through the toxic properties of those toxic chemicals

specified in paragraph (a) of this definition, which would be released

as a result of the employment of such munition or device; or (c) Any

equipment specifically designed for use directly in connection with the

employment of munitions or devices specified in paragraph (b) 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

[[Page 39200]]

Destruction, and its annexes opened for signature on January 13, 1993,

and entered into force on April 29, 1997.

Chemical Weapons Convention Regulations (CWCR). Means the

regulations contained in 15 CFR parts 710 through 721.

Consumption. Consumption of a chemical means its conversion into

another chemical via a chemical reaction.

Declaration form. Means a multi-purpose form due to BXA 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. Certain declaration forms will also be used by

entities that are not ``declared'' facilities, but that have limited

reporting requirements under the CWCR. Information from such facilities

will be used to compile U.S. national aggregate figures on the

production, processing, consumption, import and export of specific

chemicals. See also definition of ``declared facility.''

Declared facility or plant site. Means a facility or plant site

required to complete data declarations of activities involving Schedule

1, Schedule 2, Schedule 3, or unscheduled discrete organic chemicals

above specified threshold quantities. Only certain declared facilities

and plant sites are subject to routine inspections under the CWCR.

Plant sites that produced either Schedule 2 or Schedule 3 chemicals for

CW purposes at any time since January 1, 1946, are also ``declared''

plant sites. However, such plant sites are not subject to routine

inspection if they are not subject to declaration requirements because

of past production, processing or consumption of Scheduled 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 oxides, sulfides, metal carbonates and metal carbides

identifiable by chemical name, by structural formula, if known, and by

Chemical Abstract Service registry number, if assigned.

Domestic transfer (of Schedule 1 chemicals). Means, with regard to

reporting requirements for Schedule 1 chemicals under the CWCR, any

movement of any amount of Schedule 1 chemical outside the geographical

boundary of a facility in the U.S. to another destination in the U.S.

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 import or export for reporting purposes, not a domestic

transfer.

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

through 799).

Facility. Means any plant site, plant or unit.

Facility agreement. Means an agreement or arrangement between a

State Party and the Organization relating to a specific facility

subject to on-site verification pursuant to Article IV, V, and VI of

the Convention.

Host Team. The United States 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 this

subchapter 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

this subchapter apply.

ITAR. Means the International Traffic in Arms Regulations (22 CFR

parts 120 through 130).

Organization for the Prohibition of Chemical Weapons (OPCW). Means

the international organization, located in The Hague, 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:

(a) Small administrative area;

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

(c) Effluent/waste handling/treatment area;

(d) Control/analytical laboratory;

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

(f) 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:

(a) Administration and other offices;

(b) Repair and maintenance shops;

(c) Medical center;

(d) Utilities;

(e) Central analytical laboratory;

(f) Research and development laboratories;

(g) Central effluent and waste treatment area; and

(h) Warehouse storage.

Processing. Means a physical process such as formulation,

extraction and purification in which a chemical is not converted into

another chemical.

Purposes not prohibited by the CWC. Means the following:

(a) Any peaceful purpose related to an industrial, agricultural,

research, medical or pharmaceutical activity or other activity;

(b) Any purpose directly related to protection against toxic

chemicals and to protection against chemical weapons;

(c) 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

(d) Any law enforcement purpose, including any domestic riot

control purpose and including imposition of capital punishment.

Report. Means information due to BXA on imports and exports of

Schedule 1, Schedule 2 or Schedule 3 chemicals. Such information is

included in the national aggregate prior to transmittal to the OPCW.

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, 713 and 714 of this subchapter.

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,

import, export, consumption or domestic transfer.

Synthesis. Means production of a chemical from its reactants.

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.

Trading company. Means any entity involved in the export or import

of

[[Page 39201]]

chemicals in amounts greater that specified thresholds, but not in the

production, processing or consumption of chemicals in amounts greater

than threshold amounts requiring declaration. Such companies are not

subject to routine inspections.

Transfer. See domestic transfer.

Undeclared facility. Means a facility 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 may have a reporting requirement for imports or exports 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 State Department

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 Supplement No. 1 to parts

712, 713 and 714 of this subchapter).

Unsheduled Discrete Organic Chemical (UDOC). Means any chemical:

(a) Belonging to the class of chemical compounds consisting of all

compounds of carbon except for its oxides, sulfides, metal carbonates

and metal carbides identifiable by chemical name, by structural

formula, if known, and by Chemical Abstract Service registry number, is

assigned, and

(b) That is not contained in the Schedules of Chemicals (see

Supplements No. 1 to parts 712, 713 and 714 of this subchapter).

Unscheduled discrete organic chemicals subject to declaration under

this subchapter are those produced by synthesis that were 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.

Sec. 710.2 Scope of the CWCR.

The Chemical Weapons Convention Regulations (parts 710 through 721

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. The CWCR reporting

and inspection requirements apply to all facilities in the United

States, except for Department of Defense and Department of Energy

facilities and other United States Government agencies that notify the

USNA of their decision to be excluded from the CWCR. The CWCR also

apply to all U.S. persons and facilities, wherever located, for imports

of Scheduled chemicals and activities involving Schedule 1 chemicals,

except for Department of Defense and Department of Energy facilities

and other United States Government facilities that notify the USNA of

their decision to be excluded from the CWCR. United States Government

facilities are those owned by or leased to the U.S. Government,

including facilities that are contractor-operated.

(b) Activities subject to the CWCR. The CWCR compel data

declarations and reports from facilities subject to the CWCR (parts 710

through 721 of this subchapter) on activities including production,

processing, consumption, imports and exports, involving organic

chemicals further described in parts 712 through 715 of this

subchapter. Those regulations do not apply to activities involving

inorganic chemicals other than those listed in the Schedule of

Chemicals or to other specifically exempted organic chemicals. In

addition, those regulations set forth procedures for routine

inspections of ``declared'' facilities by teams of international

inspectors in part 716 of this subchapter, and set forth clarification

procedures and procedures for challenge inspections that could be

requested at any facility or location in the United States. Finally,

the CWCR restrict imports of Schedule 1 and 2 chemicals, limit

production of Schedule 1 chemicals to specified annual amounts and

prohibit other activities involving Schedule 1 chemicals except for

research, medical, pharmaceutical or protective purposes.

Sec. 710.3 Purposes of the Convention and CWCR.

(a) Purposes of the Convention. (1) The Convention imposes upon the

United States Government (USG), as a State Party, certain declaration,

inspection, and other obligations. In addition, the USG and each other

State Party 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 State Parties that

lawful activities of the 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 721 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 other United States Government agencies that

notify the USNA of their decision to be excluded from the CWCR on

activities,

[[Page 39202]]

including imports and exports, involving Scheduled chemicals and

unscheduled Discrete Organic Chemicals as described in parts 712

through 715 of this subchapter. United States 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 this subchapter.

Sec. 710.4 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 721 of this subchapter).

These examples are not exhaustive, and you should refer to parts 712

through 715 of this subchapter to determine your obligations.

(a) Schedule 1 chemicals are listed in Supplement No. 1 to part 712

of this subchapter. Schedule 1 chemicals have little or no use in

industrial and agricultural industries, but may have limited use in the

pharmaceutical or medical industries.

(b) Schedule 2 chemicals are listed in Supplement No. 1 to part 713

of this subchapter. 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, tranquillizer 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 this subchapter. 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.

Sec. 710.5 Authority.

The CWCR (parts 710 through 721 of this subchapter) implement

certain provisions of the Chemical Weapons Convention under the

authority of the Chemical Weapons Convention Implementation Act of 1998

(CWCIA), the National Emergencies Act, the International Emergency

Economic Powers Act of 1997 (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

CWCIA, and consistent with the CWCIA, to carry out appropriate

functions not otherwise assigned in the CWCIA but necessary to

implement certain reporting, monitoring and inspection requirements of

the Convention and the CWCIA.

Sec. 710.6 Relationship between the Chemical Weapons Convention

Regulations and the Export Administration Regulations.

Certain obligations of the U.S. Government under the CWC pertain to

exports, including the transfer of technology during an on-site

inspection. These obligations 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 Secs. 740.11 and 742.18 and part 745 of

the EAR, and Export Control Classification Numbers 1C350, 1C351 and

1C355 of the Commerce Control List (Supplement No. 1 to part 774 of the

EAR).

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 [EFFECTIVE DATE OF THE FINAL RULE].

Albania

Algeria

Argentina

Armenia

Australia

Austria

Bahrain

Bangladesh

Belarus

Belgium

Benin

Bolivia

Bosnia-Herzegovina

Botswana

Brazil

Brunei Darussalam

Bulgaria

Burkina Faso

Burundi

Cameroon

Canada

Chile

China *

---------------------------------------------------------------------------

\*\ For CWC States Parties purposes, China includes Hong Kong.

---------------------------------------------------------------------------

Cook Islands

Costa Rica

Cote d'Ivoire (Ivory Coast)

Croatia

Cuba

Cyprus

Czech Republic

Denmark

Ecuador

El Salvador

Equatorial Guinea

Ethiopia

Estonia

Fiji

Finland

France

Gambia

Georgia

Germany

Ghana

Greece

Guinea

Guyana

Holy See

Hungary

Iceland

India

Indonesia

Iran

Ireland

Italy

Japan

Jordan

Kenya

Korea (Republic of)

Kuwait

Laos (P.D.R.)

Latvia

Lesotho

Lithuania

Luxembourg

Macedonia

Malawi

Maldives

Mali

Malta

Mauritius

Mauritania

Mexico

[[Page 39203]]

Moldova (Republic of)

Monaco

Mongolia

Morocco

Namibia

Nepal

Netherlands

New Zealand

Niger

Nigeria

Norway

Oman

Pakistan

Panama

Papua New Guinea

Paraguay

Peru

Philippines

Poland

Portugal

Qatar

Romania

Russian Federation

Saint Lucia

Saudi Arabia

Senegal

Seychelles

Singapore

Slovak Republic

Slovenia

South Africa

Spain

Sri Lanka

Sudan

Suriname

Swaziland

Sweden

Switzerland

Tajikistan

Tanzania, United

Republic of Togo

Trinidad and Tobago

Tunisia

Turkey

Turkmenistan

Ukraine

United Kingdom

United States

Uruguay

Uzbekistan

Venezuela

Vietnam

Zimbabwe

PART 711--GENERAL INFORMATION REGARDING DECLARATION REQUIREMENTS

Sec.

711.1 Overview of declaration, notification and reporting

requirements.

711.2 Confidential business information.

711.3 Who submits declarations, notifications and reports.

711.4 Assistance in determining your obligations and

classifications.

711.5 Where to obtain forms.

Supplement No. 1 to Part 711--Confidential Business Information To Be

Declared or Reported

Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR

36703.

Sec. 711.1 Overview of declaration, notification and reporting

requirements.

Parts 712 through 715 of the CWCR (parts 710 through 721 of this

subchapter) describe the declaration, 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 an initial declaration and subsequent annual

declarations. If, after reviewing parts 712 through 715 of this

subchapter, you determine that you have declaration, notification or

reporting requirements, you may obtain the appropriate forms by

contacting the Bureau of Export Administration (see Sec. 711.4).

Sec. 711.2 Confidential business information.

(a) Provisions of the Act relating to confidential business

information. (1) The Act provides a statutory exemption from disclosure

in response to a Freedom of Information Act request for information

submitted to the U.S. National Authority by private entities in

declarations and reports for:

(i) Information included in categories specifically enumerated in

sections 103(g)(1) and 304(e)(2) of the Act:

(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 passenger

vehicles exiting the facility;

(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; or

(L) Any commercial sale, shipment or use of a chemical, or

(ii) 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.

Note to paragraph (a)(1): See Secs. 716.(4)(e) and 717.2(e)(5)

of this subchapter for related provisions dealing with information

obtained through the conduct of inspections in the United States

under the Convention.

(2) The Act provides for disclosure of confidential business

information to the OPCW, to federal law enforcement agencies, and, upon

written request, to Congressional committees of appropriate

jurisdiction.

(3) The United States Government must also disclose confidential

business information when such disclosure is deemed to be in the

national interest. The USNA, in coordination with the CWC interagency

group shall determine if disclosure of such confidential business

information is in the national interest. The Act provides for

notification to the affected person of intent to disclose confidential

business information, 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 determines that such notification of intent to disclose

is not contrary to national security or law enforcement needs, the USNA

will notify the person that submitted the information or the person to

whom the information pertains of the intent to disclose the

information.

(b) Provisions of the Convention relating to confidential business

information. The Convention provides that States Parties may designate

information submitted to the Organization for the Prohibition of

Chemical Weapons (OPCW) 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 allow access to information which it receives

from the OPCW in accordance with the level of confidentiality

established for that information.

Sec. 711.3 Who submits declarations, notifications and reports.

The operator of a facility required to submit declarations,

notifications or reports under the CWCR (parts 710 through 721 of this

subchapter) is responsible for the submission of all required documents

in accordance with all applicable provisions of the CWCR.

Sec. 711.4 Assistance in determining your obligations and

classifications.

(a) If you need assistance in determining your obligations under

the CWCR (parts 710 through 721 of this subchapter), including whether

a chemical is classified as a Schedule 1, Schedule 2, or Schedule 3

chemical, or

[[Page 39204]]

is an unscheduled discrete organic chemical, submit your request to the

Bureau of Export Administration. BXA will only review properly

submitted requests, which must include the following information:

(1) Date of request;

(2) Company name and complete street address;

(3) Point of contact;

(4) Phone and fax number of contact;

(5) Chemical name;

(6) Structural formula;

(7) Chemical abstract registry number, if assigned.

(b) Requests for chemical determinations may be faxed to (703) 235-

1481 or mailed to the following address: Information Technology Team,

Bureau of Export Administration,U.S. Department of Commerce, 1555

Wilson Boulevard, Suite 710, Arlington, Virginia 22209-2405.

(c) BXA will respond to properly submitted requests within 10

calendar days of receipt.

Sec. 711.5 Where to obtain forms.

U.S. Department of Commerce, Information Technology Team, 1555

Wilson Blvd., Suite 710 Arlington, VA 22209-2405, Telephone: (703) 235-

1335.

Supplement No. 1 To Part 711.--Confidential Business Information To Be

Declared or Reported 1

------------------------------------------------------------------------

Fields containing

confidential business

information

------------------------------------------------------------------------

Schedule 1 Forms:

Certification Form...................... None.

Form 1-1................................ None.

Form 1-2................................ All fields.

Form 1-2A............................... All fields.

Form 1-2B............................... All fields.

Form 1-3................................ All fields.

Schedule 2 Forms:

Certification........................... None.

Form 2-1................................ None.

Form 2-2................................ Question 2-2.9.

Form 2-3................................ All fields.

Form 2-3A............................... All fields.

Form 2-3B............................... All fields.

Form 2-3C............................... All fields.

Form 2-4................................ All fields.

Schedule 3 Forms:

Certification Form...................... None.

Form 3-1................................ None.

Form 3-2................................ None.

Form 3-3................................ All fields.

Form 3-4................................ All fields.

Unscheduled Discrete Organic Chemicals

Forms:

Certification Form...................... None.

Form UDOC............................... None.

------------------------------------------------------------------------

Note: Information contained in Form A attachments will be evaluated on a

case-by-case basis, except that Schedule 1 facility technical

descriptions submitted with initial declarations are confidential

business information.

1 This table lists those data fields on the Declaration and Report forms

that request ``confidential business information'' (CBI) as defined by

the CWCIA (sections 103(g) and 304(e)(2)). As provided by section

404(a) of the CWCIA, 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 CWCIA, that such disclosure is in

the national interest. Other FOIA exemptions to disclosure may also

apply. CBI may be disclosed to the Technical Secretariat of the OPCW,

and certain CBI may be disclosed to other States Parties to the

Convention.

PART 712--ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS

Sec.

712.1 Prohibitions involving imports of Schedule 1 chemicals.

712.2 Initial and annual declaration requirements for facilities

engaged in the production of Schedule 1 chemicals.

712.3 New Schedule 1 production facility.

712.4 Advance notification and annual report of all exports and

imports of Schedule 1 chemicals to, or from, other States Parties.

712.5 Frequency and timing of declarations, reports and

notifications.

712.6 Amended declaration or report.

Supplement No. 1 To Part 712--Schedule 1 Chemicals

Authority: Pub. L. 105-277, 112 Stat. 2681; 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.

Sec. 712.1 Prohibitions involving imports of Schedule 1 chemicals.

See Sec. 711.5 of this subchapter for information on obtaining the

forms you will need to declare and report activities involving Schedule

1 chemicals. See Sec. 711.2 and Supplement No. 1 to part 711 of this

subchapter for information pertaining to the protection of confidential

business information.

(a) 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 the Department of Commerce 45 calendar days

prior to the import pursuant to Sec. 712.4.

(b) The provisions of paragraph (a) of this section do not apply

to:

(1) 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 (b)(2) of this

section, pending destruction of the Schedule 1 chemical;

(2) A person referred to in paragraph (b)(1) of this section means:

(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.

Note to Sec. 712.1: For specific provisions relating to the

prior notification of exports of all Schedule 1 chemicals, see

Sec. 742.18 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 Secs. 742.2

and 742.18 of the EAR for Schedule 1 chemicals subject to the

jurisdiction of the Department of Commerce and of 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.

Sec. 712.2 Initial and annual declaration requirements for facilities

engaged in the production of Schedule 1 chemicals.

(a) Declaration requirements. (1) Initial declaration. You must

complete the forms specified in paragraph (b)(1) of this section,

providing a current technical description of your facility or its

relevant parts, if you produced Schedule 1 chemicals at your facility

in excess of 100 grams aggregate in calendar year 1997, 1998 or 1999.

(2) 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 l chemicals

in the previous calendar year, beginning with calendar year 1997. Note

that as part of this declaration, in addition to declaring the

production of each Schedule 1 chemical that comprises your aggregate

production of Schedule 1 chemicals, you must also declare the total

amount

[[Page 39205]]

of 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.

(3) 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 paragraph (a)(1) of this section), and wait 200

calendar days before commencing operations or increasing production

that will result in production of more than 100 grams aggregate of

Schedule 1 chemicals (see Sec. 712.4).

(b) Declaration forms to be used. (1) Initial declaration. (i) You

must complete 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 year 1997, 1998 or 1999. You must provide a

detailed current technical description of your facility or its relevant

parts including a narrative statement, a detailed diagram of the

declared areas in the facility, and an inventory of equipment in the

declared area.

(ii) If you plan to change the technical description of your

facility from your initial declaration completed and submitted pursuant

to paragraph (a)(1) of this section and Sec. 712.5, you must notify BXA

200 calendar days prior to the change. Such notifications must be made

through an amended declaration by completing a Certification Form, Form

1-1 and Form A, including the new description of the facility. See

Sec. 712.7 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)(2) 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, beginning with calendar year

1997. 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 or reported. 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 for each Schedule 1

chemical produced the quantity consumed and stored, and the quantity of

any Schedule 1, Schedule 2 or Schedule 3 chemical precursor used to

produce the declared Schedule 1 chemicals, rounded to the nearest gram.

(d) ``Declared'' Schedule 1 facilities and routine inspections.

Only facilities that produced in excess of 100 grams aggregate of

Schedule 1 chemicals during the previous calendar year, or that

anticipate producing in excess of 100 grams aggregate of Schedule 1

chemicals during the next calendar year are considered Schedule 1

``declared'' facilities. A ``declared'' Schedule 1 facility is subject

to routine inspection by the OPCW (see part 716 of this subchapter).

(e) 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 BXA within 30 days of receipt by

BXA of an annual declaration on past activities (see paragraph (a)(2)

of this section). If your facility does not produce more than 100 grams

aggregate of Schedule 1 chemicals, no approval by BXA is required.

Sec. 712.3 New Schedule 1 production facility.

(a) Establishment of a new Schedule 1 production facility. If your

facility was not declared under Sec. 712.2 in the previous calendar

year, but 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 notify BXA

at least 200 calendar days in advance of commencing such production.

Such facilities are considered ``new Schedule 1 production facilities''

and cannot begin operation or be used until the United States and the

OPCW have concluded a facility agreement for the new facility.

(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, including a detailed diagram of

the declared areas in the facility, and an inventory of equipment in

the declared area.

Sec. 712.4 Advance notification and annual report of all exports

1 and imports of Schedule 1 chemicals to, or from, other

States Parties.

---------------------------------------------------------------------------

\1\ Effective May 18, 1999, these advance notification and

annual report requirements for exports are set forth in parts 742

and 745 of the Export Administration Regulations (EAR) (15 CFR parts

742 and 745).

---------------------------------------------------------------------------

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 BXA 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 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 company-specific

information relating to export and import transactions, including the

names and addresses of all declared facilities, undeclared facilities

and trading companies, is submitted to the OPCW as part of the U.S.

annual declaration on exports and imports. Also note that the

notification and annual report requirements of this section do not

relieve you of any requirement to obtain a license from the Department

of Commerce for the export of Schedule 1 chemicals subject to the

Export Administration Regulations (15 CFR parts 730 through 799) or

from the Department of State for the export of Schedule 1 chemicals

subject to the International Traffic in Arms Regulations (22 CFR parts

120 through 130). Only facilities that produce in excess of 100 grams

aggregate of Schedule 1 chemicals annually are ``declared'' facilities

and are subject to routine inspections pursuant to part 716 of this

subchapter.

(a) Advance notification of exports and imports. (1) You must

notify BXA at least 45 calendar days prior to exporting or importing

any quantity of a Schedule 1 chemical listed in Supplement No. 1 to

this part to or from another State Party. Note that notifications for

exports may be sent to BXA prior to or after submission of a

[[Page 39206]]

license application to BXA for Schedule 1 chemicals subject to the EAR

and controlled under ECCNs 1C350 or 1C351 or to the Department of State

for Schedule 1 chemicals controlled on the ITAR. Such notices must be

submitted separately from license applications.

(i) 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 fax numbers, along with the

following information:

(A) Chemical name;

(B) Structural formula of the chemical;

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

(D) Quantity involved in grams;

(E) Planned date of export or import;

(F) Purpose (end-use) of export or import (i.e., research, medical,

pharmaceutical, or protective purpose)

(G) Name(s) of recipient and exporter;

(H) Complete street address(es) of recipient and exporter;

(I) Export license or control number, if known; and

(J) Company identification number, once assigned by BXA.

(ii) Send the notification by fax to (703) 235-1481 or to the

following address:

For mail and courier deliveries: Information Technology Team,

Bureau of Export Administration, Department of Commerce, 1555 Wilson

Boulevard, Suite 710, Arlington, VA 22209-2405, Attn: ``Advance

Notification of Schedule 1 Chemical [Export][Import]''.

(iii) Upon receipt of the notification, BXA will inform the

exporter of the earliest date the shipment may occur under the

notification procedure. To export the Schedule 1 chemical, the exporter

must have applied for and been granted a license (see Secs. 742.2 and

742.18 of the EAR, or the ITAR at 22 CFR parts 120 through 130).

(b) Annual declaration or report on exports and imports. (1)

Declaration or report requirements. You must complete the forms

specified in paragraph (b)(2) of this section if you exported to or

imported from another State Party any quantity of a Schedule 1 chemical

during the previous calendar year.

(2) Forms to be used. (i) Facilities declared pursuant to

Sec. 712.2(d). If you are a Schedule 1 declared facility because you

produced in excess of 100 grams aggregate of Schedule 1 chemicals in

the previous calendar year, you must complete Form 1-3 as part of the

annual declaration on past activities. (See Sec. 712.2(b)(2)).

(ii) Undeclared facilities and trading companies. If your facility

is not a ``declared'' facility because it did not produce over 100

grams aggregate of Schedule 1 chemicals, and you exported or imported

any quantity of a Schedule 1 chemical to or from another State Party,

you must complete the Certification Form, Form 1-1, and Form 1-3. Form

B is optional.

(c) Paragraph (a) of this section does not apply to the activities

and persons set forth in paragraph 712.1(c).

Sec. 712.5 Frequency and timing of declarations, reports and

notifications.

Declarations, reports and notifications required under this part

are due to BXA according to the dates identified in Table 1 of this

section. Required declarations, reports and notifications include:

(a) Initial declarations;

(b) Annual declarations or reports on activities, including exports

and imports, during the previous calendar year, beginning with

activities in calendar year 1997;

(c) Annual declarations on anticipated production in the next

calendar year, beginning in calendar year 1999 for production

anticipated for calendar year 2000;

(d) Advance notification of any export to or import from another

State Party; and

(e) Advance notification of new Schedule 1 production facility.

Table 1 to Sec. 712.5.--Deadlines for Submission of Schedule 1

Declarations

------------------------------------------------------------------------

Declarations and

notifications Applicable forms Due dates

------------------------------------------------------------------------

Initial Declaration:

Declared facility Certification, 1-1, See Note to Table 1.

(technical description). A.

Annual Declaration on Past

Activities (previous

calendar year):

Declared facility (past Certification, 1-1, See Note to Table 1.

production, exports and 1-2, 1-2A, 1-2B, 1-

imports). 3 (if also exported

or imported), A,

and B (optional).

Annual report of exports and Certification, 1-1, See Note to Table 1.

imports (undeclared 1-3, B (optional).

facility, trading company).

Annual Declaration on Certification, 1-1, August 3 of each

Anticipated Production for 1-4, A, B year prior to the

a Facility (next calendar (optional). calendar year in

year). which anticipated

activities will

take place.

Advance Notification of any Notify on 45 calendar days

export to or import from letterhead. See prior to the import

another State Party. Sec. 712.4 of this or export.

subchapter.

Advance Notification of new Certification, 1-1, 200 calendar days

Schedule 1 production A. before commencing

facility. such production.

------------------------------------------------------------------------

Note to Table 1: Initial declarations and annual reports of past

production, exports and imports pursuant to the provisions of this

part are due [90 days after the publication of a final rule]. Declared

facilities must provide annual declarations on past production of

Schedule 1 chemicals in aggregate quantities exceeding 100 grams for

both calendar years 1997 and 1998. Thereafter, annual declarations and

reports of past Schedule 1 activities will be due to the Department of

Commerce by February 13th of each year.

Sec. 712.6 Amended declaration or report.

If, after submitting the original declaration or report, you

discover that the previously submitted information is not accurate

(e.g., change of quantity, addition of a new chemical, relocation of

facility, etc.), you must complete a new Certification Form and the

specific form being amended (e.g. annual declaration on past

activities, annual declaration on anticipated activities). Only

complete that portion of each form that corrects the previously

submitted information that changed.

[[Page 39207]]

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

------------------------------------------------------------------------

(CAS registry

No.)

------------------------------------------------------------------------

A. Toxic chemicals:

(1) O-Alkyl (C10, incl. cycloalkyl)

alkyl (Me, Et, n-Pr or i-Pr)-phosphonofluoridates

e.g. Sarin: O-Isopropyl (107-44-8)

methylphosphonofluoridate....................

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 (77-81-6)

phosphoramidocyanidate.......................

(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 (50782-69-9)

methyl phosphonothiolate.....................

(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- (3563-36-8)

chloroethylthio)ethane.......................

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 (57856-11-8)

methylphosphonite............................

(11) Chlorosarin: O-Isopropyl (1445-76-7)

methylphosphonochloridate........................

(12) Chlorosoman: O-Pinacolyl (7040-57-5)

methylphosphonochloridate........................

------------------------------------------------------------------------

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): 0-Ethyl-2-

diisopropylaminoethyl methylphosphonite (QL) (C.A.S. #57856-11-8),

Ethylphosphonyl difluoride (C.A.S. #753-98-0), Methylphosphonyl

difluoride (C.A.S. #676-99-3), Saxitoxin (35523-89-8), 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 Office of Defense Trade

Control of the Department of State under the International Traffic in

Arms Regulations (22 CFR parts 120 through 130).

PART 713--ACTIVITIES INVOLVING SCHEDULE 2 CHEMICALS

Sec.

713.1 Prohibition on imports of Schedule 2 chemicals from non-

States Parties.

713.2 Declaration of past production of Schedule 2 chemicals for

chemical weapons purposes.

713.3 Initial and annual declaration and reporting requirements for

plant sites that produce, process or consume Schedule 2 chemicals in

excess of specified thresholds.

713.4 Initial and annual declaration and reporting requirements for

exports and imports of Schedule 2 chemicals.

713.5 Advance declaration requirements for additionally planned

production, processing or consumption of a Schedule 2 chemical.

713.6 Frequency and timing of declarations and reports.

713.7 Amended declaration or report.

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

Authority: Pub. L. 105-277, 112 Stat. 2681; 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.

Sec. 713.1 Prohibition on imports of Schedule 2 chemicals from non-

States Parties.

See Sec. 711.4 of this subchapter for information on obtaining the

forms you will need to declare and report activities involving Schedule

2 chemicals.

(a) You may not import any Schedule 2 chemical (see Supplement No.

1 to this part) on or after April 29, 2000, from any country other than

a State Party to the Convention. See Supplement No. 1 to part 710 of

this subchapter for a list of States that are party to the Convention.

Note to paragraph (a). See Sec. 742.18 of the EAR for

prohibitions that apply to exports of Schedule 2 chemicals on or

after April 29, 2000 to non-States Parties and for End-Use

Certificate requirements for exports of Schedule 2 chemicals prior

to April 29, 2000 to such destinations.

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

and persons set forth in paragraph 712.1(c) of this subchapter.

Sec. 713.2 Declaration of past production of Schedule 2 chemicals for

chemical weapons purposes.

You must complete the Certification Form and Forms 2-1, 2-2, 2-4,

Form A and Form B (which is optional), if you produced at your plant

site any quantity of a Schedule 2 chemical at any time since January 1,

1946, for chemical weapons purposes. You must declare the total

quantity of such a chemical produced, rounded to the nearest

[[Page 39208]]

kilogram. Note that you are not subject to routine inspection unless

you are a declared facility pursuant to Sec. 713.3.

Sec. 713.3 Initial and annual declaration and reporting requirements

for plant sites that produce, process or consume Schedule 2 chemicals

in excess of specified thresholds.

See Supplement No. 1 to part 711 of this subchapter for information

pertaining to the protection of confidential business information.

(a) 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 (c) of this section if you have been or will be involved

in the following activities:

(i) Initial declaration. You produced, processed or consumed at one

or more plants on your plant site during any of the calendar years

1994, 1995 or 1996, a Schedule 2 chemical in excess of the following

declaration threshold quantities:

(A) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (see

Schedule 2, paragraph A.3 included in Supplement No. 1 to this part);

(B) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-

2(trifluoromethyl)-1-propene or any chemical belonging to Amiton and

corresponding alkylated or protonated salts (see Schedule 2, paragraph

A.1 and A.2 A.3 included in Supplement No. 1 to this part); or

(C) 1 metric ton of any chemical listed in Schedule 2, Part B (see

Supplement No. 1 to this part).

Note to paragraph (a)(1)(i). To determine whether you have an

initial declaration requirement for Schedule 2 activities, 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 calendar years 1994, 1995 or 1996. For example,

if you are preparing your initial declaration, and you determine

that one plant on your plant site produced greater than 1 kilogram

of the chemical BZ: 3-Quinuclidinyl benzilate in calendar year 1995,

and no plants on your plant site produced, processed or consumed any

Schedule 2 chemical above the declaration threshold in calendar

years 1994 or 1996, you still have a declaration requirement under

this paragraph, and you must declare on the required forms

production, processing and consumption data for calendar years 1994,

1995 and 1996.

(ii) Annual declaration on past activities. 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 the

applicable declaration threshold quantity specified in paragraphs

(a)(1)(i)(A) through (C) of this section; or

Note to paragraph (a)(1)(ii). To determine whether you have an

annual declaration requirement of Schedule 2 activities, 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 previous three calendar years. For

example, if you are preparing your annual declaration on past

activities for 1997, and you determine that one plant on your plant

site produced greater than 1 kilogram of the chemical BZ: 3-

Quinuclidinyl benzilate in calendar year 1995, and no plants on your

plant site produced, processed or consumed any Schedule 2 chemical

above the declaration threshold in calendar years 1996 or 1997, you

still have a declaration requirement under this paragraph. However,

you must only declare on the required forms production, processing

and consumption data for calendar year 1997.

(iii) Annual declaration on anticipated activities. You anticipate

you will produce, process or consume at one or more plants on your

plant site during the next calendar year, starting with activities

anticipated for calendar year 2000, a Schedule 2 chemical in excess of

the applicable declaration threshold quantity set forth in paragraphs

(a)(1)(i)(A) through (C) of this section.

(2) Mixtures containing Schedule 2 chemicals. (i) The quantity of a

Schedule 2 chemical contained in a mixture must be counted for

declaration purposes only if the concentration of the Schedule 2

chemical in the mixture is;

(A) 10% or more by volume or by weight, whichever yields the lesser

percent, for activities involving either production or consumption of a

mixture containing a Schedule 2 chemical; or

(B) 30% or more by volume or by weight, whichever yields the lesser

percent, for activities involving the processing of a mixture

containing a Schedule 2 chemical.

(ii) Counting the amount of the Schedule 2 chemical in a mixture.

If your mixture contains more than the stated percentage concentration

of a Schedule 2 chemical for the activity (i.e., more than 10% for

production or consumption activities or more than 30% for processing

activities), you must count only the amount (weight) of the Schedule 2

chemical in the mixture, not the total weight of the mixture. Only

count amounts for activities for which you meet the applicable

percentage threshold. For example, if a plant at your plant site

produces and/or consumes a Schedule 2 chemical at a concentration over

10% but does not process that chemical at a concentration over 30%,

only count the amount of the Schedule 2 chemical involved in the

production and/or consumption activity or activities. Likewise, if a

plant on your plant site processes a Schedule 2 chemical at a

concentration in excess of 30% but does not produce or consume that

chemical at a concentration in excess of 10%, only count the amount of

that Schedule 2 chemical involved in the processing activity.

(iii) Determining declaration requirements for production,

processing and consumption. You must include the amount (weight) of a

Schedule 2 chemical in a produced, processed or consumed mixture when

determining the total production, total processing, or total

consumption of that Schedule 2 chemical at a plant on your plant site.

If the total amount of the produced, processed or consumed Schedule 2

chemical exceeds the applicable declaration threshold set forth in

paragraphs (a)(1)(i)(A) through (C) of this section, you have a

declaration requirement. For example, if during calendar year 1997, a

plant on your plant site produced a mixture containing 300 kilograms of

thiodiglycol in a concentration of 12% and also produced 800 kilograms

of thiodiglycol, that plant produced 1100 kilograms and, exceeded 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 1997. 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 CWC purposes would be 800 kilograms and would not

trigger a declaration requirement. This is because the concentration of

thiodiglycol in the mixture did not exceed 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) Initial declaration.

You must complete the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A,

and Form A if you produced, processed or consumed at one or more plants

on your plant site a Schedule 2 chemical in excess of the applicable

declaration threshold quantity specified in paragraphs (a)(1)(i)(A)

through (C) of this section during any of the three calendar years

1994, 1995 or 1996. Form B is optional. If you are subject to initial

declaration requirements, you must included data

[[Page 39209]]

for each of the calendar years 1994, 1995 and 1996.

(2) 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) through (C) 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.

(3) 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 quantity set

forth in paragraphs (a)(1)(i)(A) through (C) of this section during the

following calendar year, beginning with activities planned for calendar

year 2000. Form B is optional.

(c) Quantities to be declared.

(1) Production, processing and consumption of a Schedule 2 chemical

above the declaration threshold.

(i) Initial declaration. 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 threshold quantity for that Schedule 2 chemical

for each of the calendar years 1994, 1995 and 1996. Do not aggregate

amounts of production, processing or consumption from plants on the

plant site that did not individually produce, process or consume

Schedule 2 chemicals in amounts greater than the applicable threshold

levels.

(ii) Annual declaration on past activities. If you are required to

complete forms pursuant to paragraph (a)(1)(ii) 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 threshold quantity for that

Schedule 2 chemical. Do not aggregate amounts of production, processing

or consumption from plants on the plant site that did not individually

produce, process or consume Schedule 2 chemicals in amounts greater

than the applicable threshold levels.

(2) Rounding. For the chemical BZ, report quantities to the nearest

hundredth of a kilogram. For PFIB and the Amiton family, report

quantities to the nearest 1 kg. For all other Schedule 2 chemicals,

report quantities to the nearest 10 kg.

(d) ``Declared'' Schedule 2 plant sites. A plant site that

comprises one or more plants that produced, processed or consumed a

Schedule 2 chemical above the applicable threshold quantity set forth

in paragraphs (a)(1)(i)(A) through (C) of this section during any of

the previous three calendar years or is anticipated to produce, process

or consume a Schedule 2 chemical above the applicable threshold

quantity in the next calendar year is a ``declared plant site.''

(e) Declared Schedule 2 plant sites subject to routine inspections.

A ``declared'' Schedule 2 plant site is subject to routine inspection

by the OPCW 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 quantity set forth in paragraphs (a)(1)(i)(A)

through (C) of this section (see part 716 of this subchapter).

Sec. 713.4 Initial and annual declaration and reporting requirements

for exports and imports of Schedule 2 chemicals.

(a) Quantities of exports and imports that must be declared or

reported. You must complete the forms specified in paragraph (c) of

this section if you have been or will be involved in any of the

following activities.

(1) Initial declaration or report. (i) Initial declaration from a

declared plant site. Your plant site is declared pursuant to Sec. 713.3

and you exported from and/or imported to your plant site during any of

calendar years 1994, 1995 or 1996, a Schedule 2 chemical in excess of

the following declaration threshold quantities:

(A) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (see

Schedule 2, paragraph A.3);

(B) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-

2(trifluoromethyl)-1-propene or any chemical belonging to Amiton and

corresponding alkylated or protonated salts (see Schedule 2, paragraph

A.1 and A.2);

(C) 1 metric ton of any chemical listed in Schedule 2, Part B.

(ii) Initial report on exports and imports from undeclared plant

site or trading company. You exported from and/or imported to your

undeclared plant site or trading company during calendar year 1996 a

Schedule 2 chemical in excess of the threshold quantity specified in

paragraphs (a)(1)(i)(A) through (C) of this section.

(2) Annual declaration or report on past activities. (i) Declared

plant site. You exported from and/or imported to your plant site during

the previous calendar year a Schedule 2 chemical in excess of the

applicable declaration threshold quantity specified in paragraphs

(a)(1)(i)(A) through (C) of this section; or

(ii) Annual report of exports and imports from undeclared plant

site or trading company. You exported from and/or imported to your

undeclared plant site trading company during the previous calendar year

a Schedule 2 chemical in excess of the threshold quantity specified in

paragraphs (a)(1)(i)(A) through (C) of this section. (See part 710 of

this subchapter for a definition of trading company.)

Notes to paragraph (a): Note 1: You must obtain an End-Use

Certificate to export any Schedule 2 chemical to a non-State Party

prior to April 29, 2000. (See Secs. 742.18, 745.2 and 748.8 of the

EAR.) Exports of Schedule 2 chemicals to non-States Parties are

prohibited beginning April 29, 2000.

Note 2: You may need a license to export a Schedule 2 chemical.

(See Secs. 742.2 and 742.18 of the EAR for chemicals under the

jurisdiction of the Department of Commerce and the ITAR (22 CFR

parts 120 through 130) for chemicals under the jurisdiction of the

Department of State.)

(b) Mixtures. Note that the quantity of a Schedule 2 chemical

contained in a mixture must be counted for declaration purposes only if

the concentration of the Schedule 2 chemical in the mixture is:

(1) 10% or more by volume or by weight, whichever yields the lesser

percent, for activities involving either production or consumption of a

mixture containing a Schedule 2 chemical, or

(2) 30% or more by volume or by weight, whichever yields the lesser

percent, for activities involving the processing of a mixture

containing a Schedule 2 chemical.

Note to paragraph (b): See Sec. 713.3(a)(2) for information on

counting amounts of Schedule 2 chemicals contained in mixtures and

determining declaration requirements.

(c) Types of declarations and declaration forms to be used. (1)

Initial declaration. (i) Declared plant sites. If your plant site is

subject to the declaration requirements of Sec. 713.3 for a specific

Schedule 2 chemical, and if your plant site also exported or imported

that Schedule 2 chemical in excess of the applicable threshold quantity

set forth in paragraph (a) of this section in calendar years 1994, 1995

or 1996, you must also complete Form 2-3B in addition to the forms

required by Sec. 713.3(b)(1). You must declare exports from or imports

to your plant site of that Schedule 2 chemical for each of

[[Page 39210]]

calendar years 1994, 1995, and 1996 during which the imports or exports

exceeded the applicable threshold quantity.

(ii) Undeclared plant sites and trading companies. If your plant

site is not subject to the declaration requirements of Sec. 713.2 for a

specific Schedule 2 chemical and if your plant site exported or

imported more than the applicable threshold quantity of that Schedule 2

chemical during calendar year 1996, or if your trading company as that

term in defined in part 710 of this subchapter exported or imported

more than the applicable threshold quantity of a Schedule 2 chemical

during calendar year 1996, you must complete the Certification Form,

Forms 2-1 and 2-3B, and Form A. Form B is optional.

Note to paragraph (c)(1)(ii): Under the Convention, the United

States is obligated to provide the OPCW an aggregate annual report

of the quantities of each Schedule 2 chemical exported and imported.

The U.S. Government will not submit your company-specific

information relating to the export or import of a Schedule 2

chemical reported under this paragraph (c)(1)(ii). The U.S.

Government will add all export and import information submitted by

various undeclared plant sites and trading companies under this

paragraph (c)(1)(ii) to export and import information submitted by

declared plant sites under paragraph (c)(1)(i) of this section to

produce a national aggregate initial declaration of country-by-

country trade for each Schedule 2 chemical.

(2) Annual declaration or report on past activities exports and

imports. (i) Declared plant sites. If your plant site is subject to the

declaration requirements of Sec. 713.3 for a specific Schedule 2

chemical and your plant site also exported or imported more than the

applicable threshold quantity of that Schedule 2 chemical in the

previous calendar year, you must also complete Form 2-3B in addition to

the forms required by Sec. 713.3(b)(2).

(ii) Undeclared plant sites and trading companies. If your plant

site is not subject to the declaration requirements of Sec. 713.3 for a

specific Schedule 2 chemical and your plant site exported or imported

more than the applicable threshold quantity of that chemical in the

previous calendar year, or if you are a trading company as that term is

defined in part 710 of this subchapter and your trading company

imported or exported more than the applicable threshold quantity of a

Schedule 2 chemical in the previous calendar year, you must complete

the Certification Form, Forms 2-1 and 2-3B. Form B is optional.

Note to (c)(2)(ii): Under the Convention, the United States is

obligated to provide the OPCW an aggregate annual report of the

quantities of each Schedule 2 chemical exported and imported. The

U.S. Government will not submit your company-specific information

relating to the export or import of a Schedule 2 chemical reported

under this paragraph (c)(2)(ii). The U.S. Government will add all

export and import information submitted by various undeclared plant

sites and trading companies under this paragraph (c)(2)(ii) to

export and import information submitted by declared plant sites

under paragraph (c)(2)(i) of this section to produce a national

aggregate annual declaration of country-by-country trade for each

Schedule 2 chemical.

(d) Quantities to be declared. (1) Country-by-country reporting. If

you exported from or imported to your plant site or trading company

more than the applicable threshold quantity of a Schedule 2 chemical,

you must report all exports and imports by country, and indicate the

total amount exported to or imported from each country. Only indicate

the total annual quantity exported to or imported from a specific

country if the total annual quantity to or from that country is more

than 1% of the applicable threshold (i.e., more than 10 grams of BZ, 1

kilogram of PFIB and Amiton and corresponding alkylated or protonated

salts, or 10 kilograms of all other Schedule 2 chemicals). However, in

determining whether your total exports and imports worldwide for the

year in question trigger declaration or reporting requirements, you

must include all exports and imports, including exports and imports

falling within the 1% exemption in your calculation.

(2) Rounding. For purposes of reporting exports and imports of a

Schedule 2 chemical, you must total all exports and imports per

calendar year per recipient or source country and then round as

follows: for the chemical BZ, the total quantity for each country

should be reported to the nearest hundreth of a kilogram (10 grams);

for PFIB and Amiton and corresponding alkylated or protonated salts,

the total quantity for each country should be reported to the nearest 1

kg; for all other Schedule 2 chemicals, the total quantity for each

country should be reported to the nearest 10 kg.

Sec. 713.5 Advance declaration requirements for additionally planned

production, processing or consumption of a Schedule 2 chemical.

(a) Declaration requirements. You must declare additionally planned

production, processing or consumption of a Schedule 2 chemical after

the annual declaration on anticipated activities has been delivered to

BXA if:

(1) You plan to increase production, processing or consumption of a

previously declared Schedule 2 chemical at any plant on your plant site

by 20% or more of the originally declared amount; or

(2) You plan to begin new production, processing or consumption of

an additional Schedule 2 chemical in amounts greater than the

applicable threshold quantities set forth in Sec. 713.3(a)(1)(i)(A)

through (C).

(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 Form 2-1 and 2-

3C. Such forms are due to BXA at least 21 days in advance of the

beginning of the additional or new production, processing or

consumption.

Sec. 713.6 Frequency and timing of declarations and reports.

Declarations and reports required under this part are due to BXA

according to the dates identified in Table 1 of this section. Required

declarations and reports include:

(a) Declaration on past production of Schedule 2 chemicals for CW

purposes since January 1, 1946;

(b) Initial declaration on past production, processing,

consumption, import or export of Schedule 2 chemicals (activities in

calendar years 1994, 1995 and 1996);

(c) Annual declaration on past production, processing, consumption,

export or import of Schedule 2 chemicals (activities during the

previous calendar year);

(d) Annual declaration on anticipated activities (production,

processing or consumption) beginning in calendar year 1999 for

activities anticipated for calendar year 2000; and

(e) Annual reports on exports and imports from trading companies

and plant sites that do not have declaration requirements for a

specific Schedule 2 chemical (exports and imports during the previous

calendar year).

Table 1 to Sec. 713.6.--Deadlines for Submission of Schedule 2

Declarations

------------------------------------------------------------------------

Declarations Applicable forms Due dates

------------------------------------------------------------------------

Initial Declaration:

[[Page 39211]]

Declared Plant Site Certification, 2-1, See note to Table 1.

(1994, 1995 and 1996 2-2, 2-3, 2-3A, 2-

for production, 3B (if also

processing and exported or

consumption; and imported), A, B

exports and imports for (optional).

1996).

Initial Report on Exports

and Imports:

Undeclared Plant Site Certification, 2-1, See note to Table 1.

and Trading Company 2-3B, B (optional).

(previous year exports

and imports).

Annual Declaration on Past

Activities:

Declared Plant Site Certification , 2-1, See note to Table 1.

production, processing, 2-2, 2-3 2-3A, 2-3B

consumption, exports (if also exported

and imports (previous or imported), A, B

calendar year only). (optional).

Annual Report of Exports and

Imports:

Undeclared Plant Site Certification, 2-1, See note to Table 1.

and Trading Company 2-3B, B (optional).

(exports and imports).

Annual Declaration on Certification, 2-1, September 3 of each

Anticipated Activities 2-2, 2-3, 2-3A, 2- year prior to the

(next calendar year). 3C, A, B (optional). calendar year in

which anticipated

activities will

take place.

Declaration of additionally Certification, 2-1, 21 calendar days

planned production, 2-3C. before the

processing and consumption. additionally

planned activity

begins.

Declaration on Past Certification, 2-1, See note to Table 1.

Production of Schedule 2 2-2, 2-4 A, B

Chemicals for CW Purposes. (optional).

------------------------------------------------------------------------

Note to Table 1: The declaration of past production for CW purposes,

initial declaration of production, processing and consumption, export

and imports and annual declarations for calendar years 1997 and 1998

of past production, processing, consumption, exports and imports

pursuant to the provisions of this part will be due [90 days after the

effective date of the final rule]. Thereafter, annual declarations of

past Schedule 2 activities will be due to BXA by February 13th of each

year.

Sec. 713.7 Amended declaration or report.

If, after submitting the original declaration or report, you

discover that the previously submitted information is not accurate

(e.g., change of quantity, addition of a new chemical, relocation of

facility, etc.), you must complete a new Certification Form and the

specific form being amended (e.g. annual declaration on past

activities, annual declaration on anticipated activities). Only

complete that portion of each form that corrects the previously

submitted information that changed.

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

------------------------------------------------------------------------

------------------------------------------------------------------------

A. Toxic chemicals:

(1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] (78-53-5)

phosphorothiolate and corresponding alkylated or

protonated salts.................................

(2) PFIB: 1,1,3,3,3-Pentafluoro-2- (382-21-8)

(trifluoromethyl)-1-propene......................

(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 (944-22-9)

ethylphosphono-thiolothionate................

(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 (108-01-0)

corresponding protonated salts...............

N,N-Diethylaminoethanol and corresponding (100-37-8)

protonated salts.............................

(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)

------------------------------------------------------------------------

PART 714--ACTIVITIES INVOLVING SCHEDULE 3 CHEMICALS

Sec.

714.1 Declaration of past production of Schedule 3 chemicals for

chemical weapons purposes.

714.2 Initial and annual declaration requirements for production of

Schedule 3 chemicals.

714.3 Initial and annual declaration and reporting requirements for

exports and imports of Schedule 3 chemicals.

714.4 Advance declaration requirements for additionally planned

production of a Schedule 3 chemical.

714.5 Frequency and timing of declarations.

714.6 Amended declaration or report.

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

Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR

36703.

Sec. 714.1 Declaration of past production of Schedule 3 chemicals for

chemical weapons purposes.

See Sec. 711.5 of this subchapter for information on obtaining the

forms you will need to declare and report activities

[[Page 39212]]

involving Schedule 3 chemicals. You must complete the Certification

Form, Forms 3-1, 3-2, 3-4, Form A and Form B (which is optional) if you

produced at one or more plants on your plant site any quantity of a

Schedule 3 chemical at any time since January 1, 1946, for chemical

weapons purposes. You must declare the total quantity of such chemical

produced, rounded to the nearest tenth of a metric ton (or 100 kg).

Note that you are not subject to routine inspection unless you are a

declared facility pursuant to Sec. 714.2.

Sec. 714.2 Initial and annual declaration requirements for production

of Schedule 3 chemicals.

(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 (c) of this section if you have been or

anticipate being involved in the following activities:

(i) Initial declaration. You produced at one or more plants on your

plant site in excess of 30 metric tons of any single Schedule 3

chemical during calendar year 1996; or

(ii) Annual declaration on past activities. You produced at your

plant site in excess of 30 metric tons of any single Schedule 3

chemical during the previous calendar year, beginning with figures for

calendar year 1997.

(iii) 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) Mixtures. The quantity of a Schedule 3 chemical contained in a

mixture must be counted for declaration purposes 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.

(b) Types of declarations and declaration forms to be used. (1)

Initial declaration. You must complete the Certification Form and Forms

3-1, 3-2, 3-3, and Form A if you produced at one or more plants on your

plant site in excess of 30 metric tons of any single Schedule 3

chemical during calendar year 1996. Form B is optional.

(2) 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, beginning

with production during calendar year 1997. Form B is optional.

(3) 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. 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

and round to the nearest ten metric tons.

(3) Mixtures. The quantity of a Schedule 3 chemical contained in a

mixture must be counted when determining the total quantity of a

Schedule 3 chemical produced at your plant site 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.

(d) ``Declared'' Schedule 3 plant sites. A plant site that

comprises one or more plants that produced in excess of 30 metric tons

of a single Schedule 3 chemical during the previous calendar year, or

that you anticipate will produce more than 30 metric tons of a single

Schedule 3 chemical in the next calendar year, is a Schedule 3

``declared'' plant site.

(e) Routine inspections of declared Schedule 3 plant sites. A

``declared'' Schedule 3 plant site is subject to routine inspection by

the OPCW (see part 716 of this subchapter) if it produced during the

previous calendar year or you anticipate it will produce during the

next calendar year in excess of 200 metric tons aggregate of any

Schedule 3 chemical.

Sec. 714.3 Initial and annual declaration and reporting requirements

for exports and imports of Schedule 3 chemicals.

(a) Quantities of exports and imports that must be declared or

reported. You must complete the forms specified in paragraph (c) of

this section if you have been or will be involved in any of the

following activities:

(1) You exported from or imported to your declared plant site,

during calendar year 1996 (for the initial declaration) or the previous

calendar year (for all annual declarations starting with calendar year

1997) a Schedule 3 chemical in excess of 30 metric tons; or

(2) You exported from or imported to your undeclared plant site or

trading company (see part 710 of this subchapter for a definition of a

trading company) a Schedule 3 chemical in excess of 30 metric tons.

Notes to paragraph (a): Note 1: You must obtain an End-Use

Certificate before exporting a Schedule 3 chemical to a non-State

Party. See Secs. 742.18, 745.2 and 748.8 of the EAR.

Note 2: You may need a license to export a Schedule 2 chemical.

See Secs. 742.2 and 742.18 of the EAR for Schedule 3 chemicals under

the jurisdiction of the Department of Commerce and the ITAR (22 CFR

parts 120 through 130) for chemicals under the jurisdiction of the

Department of State.

(b) Mixtures. Note that the quantity of a Schedule 3 chemical

contained in a mixture must be counted for declaration purposes 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. This

requirement applies to each Schedule 3 chemical imported or exported in

a previous calendar year.

(c) Types of declarations and declaration forms to be used.

(1) Initial declaration. (i) Declared plant sites. If you are

subject to the declaration requirements of Sec. 714.2 because one or

more plants at your plant site produced more than 30 metric tons of a

specific Schedule 3 chemical, and you also exported from or imported to

your plant site that Schedule 3 chemical in excess of 30 metric tons in

1996, you must also report the total quantity of exports or imports of

that Schedule 3 chemical, specifying the quantity associated with each

country, by completing additional parts of Form 3-3.

(ii) Undeclared plant sites and trading companies. If your plant

site is not subject to the declaration requirements of Sec. 714.2 for a

specific Schedule 3 chemical, and if you exported from or imported to

your plant site more than 30 metric tons of that Schedule 3 chemical

during calendar year 1996, or if you are a trading company and you

exported or imported more than 30 metric tons of a Schedule 3 chemical

during calendar year 1996, you must complete the

[[Page 39213]]

Certification Form, Forms 3-1, 3-3.3 and/or 3-3.4.

(2) Annual declaration for a specific chemical. (i) Declared plant

sites. If you are subject to the declaration requirements of Sec. 714.2

because one or more plants at your plant site produced more than 30

metric tons of a specific Schedule 3 chemical, and you also exported

from or imported to any plant on your plant site that Schedule 3

chemical in excess of 30 metric tons in the previous calendar year

beginning with exports and imports during calendar year 1997, you must

also declare the total quantity of such exports or imports, specifying

the quantity associated with each country, by completing additional

parts of Form 3-3.

(ii) Undeclared plant sites and trading companies. If your plant

site is not subject to the declaration requirements of Sec. 714.2 for a

specific Schedule 3 chemical and if you exported from or imported to

your plant site more than 30 metric tons of that Schedule 3 chemical

during the previous calendar year starting with calendar year 1997, or

if you are a trading company and you exported or imported more than 30

metric tons of a Schedule 3 chemical during the previous calendar year

starting with exports and imports during calendar year 1997, you must

complete the Certification Form, Form 3-1 and relevant parts of Form 3-

3.

(d) Quantities to be declared or reported.

(1) Country-by-country reporting. If you exported or imported more

than 30 metric tons of any one Schedule 3 chemical in the previous

calendar year, you must report all exports and imports of that Schedule

3 chemical by country, and indicate the total amount exported to or

imported from that country. Only indicate the total annual quantity

exported to or imported from a specific country if the total annual

quantity to or from that country is more than 1% of the applicable

threshold (i.e., more than 0.3 metric tons) of all other Schedule 3

chemicals). However, in determining whether your total exports and

imports worldwide for the year in question trigger declaration or

reporting requirements, you must include all exports and imports,

including exports and imports falling within the 1% exemption in your

calculation.

(2) Rounding. For purposes of reporting exports and imports of a

Schedule 3 chemical, you must total all exports or imports per calendar

year per recipient country or source country, and round to the nearest

10 metric tons.

Note to Sec. 714.3: Under the Convention, the United States is

obligated to provide the OPCW an aggregate annual report of the

quantities of each Schedule 3 chemical imported and exported. The

U.S. Government will not submit your company-specific information

relating to the export or import of a Schedule 3 chemical declared

under this Sec. 714.3. The U.S. Government will add all import and

export information submitted by various facilities under this

section to produce a national aggregate annual report of country-by-

country trade for each Schedule 3 chemical.

Sec. 714.4 Advance declaration requirements for additionally planned

production of a Schedule 3 chemical.

You must notify BXA of any additional Schedule 3 production planned

after the annual declaration on anticipated activities has been

delivered to BXA. Only anticipated increases in production that will

increase production by an amount that changes the production range

originally declared in Block 3-3.1 on Form 3-3 must be declared. For

example, if you submitted a declaration on planned production that

indicated you anticipate producing between 200 and 1,000 metric tons of

a Schedule 3 chemical, and you now plan to produce between 1,000 and

10,000 metric tons of that same Schedule 3 chemical, you must notify

BXA of the additional planned production. You must notify BXA by

completing the Certification Form and Forms 3-1 and 3-3, and submitting

them to BXA no later than 21 days before the additional activity

begins.

Sec. 714.5 Frequency and timing of declarations.

Declarations and reports required under this part are due to BXA

according to the dates identified in Table 1 of this section. Required

declarations and reports include:

(a) Initial declarations on past production of any amount of

Schedule 3 chemicals for CW purposes since January 1, 1946;

(b) Initial declarations and reports on past production, imports

and exports during calendar year 1996;

(c) Annual declarations and reports on production, imports and

exports during the previous calendar year, beginning with declarations

for calendar year 1997; and

(d) Annual declarations on anticipated production during the next

calendar year beginning in calendar year 1999 for activities

anticipated for calendar year 2000.

Table 1 to Sec. 714.5.--Deadlines for Submission of Schedule 3

Declarations

------------------------------------------------------------------------

Declarations Applicable forms Due dates

------------------------------------------------------------------------

Initial Declaration (for

calendar year 1996):

Declared Plant Site Certification, 3-1, See note to this

(production). 3-2, 3-3 (if also table.

exported or

imported), A, B

(optional).

Initial Report on Exports

and Imports:

Undeclared Plant Site, Certification, 3-1, See note to this

Trading Company. 3-3.3 and 3-3.4. table.

Annual Declaration on Past

Activities (previous

calendar year, starting

with 1997):

Declared plant site Certification, 3-1, See note to this

(production). 3-2, 3-3 (if also table.

exported or

imported), A, B

(optional).

Annual Report on Exports and

Imports:

Undeclared Plant Site Certification, 3-1, See note to this

and Trading Company. 3-3.3 and 3-3.4. table.

Annual Declaration on Certification, 3-1, September 3 of each

Anticipated Production 3-3.1 and 3-3.2. year prior to the

(next calendar year). calendar year in

which anticipated

activities will

take place.

Declaration of Additionally Certification, 3-1, 21 calendar days

Planned Activities. 3-3.1 and 3-3.2. before the

additionally

planned activity

begins.

[[Page 39214]]

Initial Declaration on Past Certification, 3-1, See note to this

Production of Schedule 3 3-2, 3-4, A, B table.

Chemicals for CW Purposes. (optional).

------------------------------------------------------------------------

Note to Table 1: The declaration of past production for CW purposes, the

initial declaration of past production, exports and imports during

calendar year 1996 and annual declarations and reports for production,

exports and imports during calendar years 1997 and 1998 pursuant to

the provisions of this part will be due [90 days after the effective

date of the final rule]. Thereafter, annual declarations and reports

of past Schedule 3 activities will be due to BXA by February 13th of

each year.

Sec. 714.6 Amended declaration or report.

If, after submitting the original declaration or report, you

discover that the previously submitted information is not accurate

(e.g., change of quantity, addition of a new chemical, relocation of

facility, etc.), you must complete a new Certification Form and the

specific form being amended (e.g., annual declaration on past

activities, annual declaration on anticipated activities). Only

complete that portion of each form that corrects the previously

submitted information.

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

------------------------------------------------------------------------

------------------------------------------------------------------------

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..................................... (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), ECCN

1C355, Related Controls for chemicals controlled under the

International Traffic in Arms Regulations (22 CFR parts 120 through

130).

PART 715--ACTIVITIES INVOLVING UNSCHEDULED DISCRETE ORGANIC

CHEMICALS

Sec.

715.1 Declaration requirements for the production of unscheduled

discrete organic chemicals (i.e. discrete organic chemicals not

declared under parts 712 through 714 of this subchapter).

715.2 Amended declaration.

715.3 Frequency and timing of declarations.

Supplement No. 1 to Part 715--Examples of Unscheduled Discrete Organic

Chemicals and Production Processes

Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR

36703.

Sec. 715.1 Declaration requirements for the production of unscheduled

discrete organic chemicals (i.e., discrete organic chemicals not

declared under parts 712 through 714 of this subchapter).

See Sec. 711.6 of this subchapter for information on obtaining the

forms you will need to declare production of unscheduled discrete

organic chemicals. See Supplement No. 1 to part 711 of this subchapter

for information pertaining to the protection of certain confidential

business information.

(a) Unscheduled discrete organic chemicals (UDOCs) subject to

declaration requirements under this part. Unscheduled discrete organic

chemicals (UDOCs) subject to declaration requirements under this part

are all chemicals containing carbon, except for the following:

(1) Those listed in Schedule 1, Schedule 2 or Schedule 3

(Supplement No. 1 to part 712, Supplement No. 1 to part 713 or

Supplement No. 1 to part 714 of this subchapter);

(2) Inorganic chemicals (e.g., carbon oxides, carbon sulfides,

metal carbonates, metal carbides or compounds of only a metal and

carbon);

Note to paragraph (a): Carbon oxides consist of chemical

compounds that contain only the elements carbon and oxygen and have

the chemical formula CxOy, 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

CaSb, 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 (Na2CO3) and calcium

carbonate (CaCO3). Metal carbides or other compounds

consisting of only a metal as described above, and carbon, (e.g.,

calcium carbide (CaC2)).

(3) Chemicals and chemical mixtures produced through a biological

or bio-mediated process;

(4) Polymer substances and oligomers consisting of two or more

repeating units, and formed by the chemical reaction of monomeric or

polymeric substances;

(b) Declaration of production of unscheduled discrete organic

chemicals. (1)(i) Production quantities that trigger declaration

requirements. You must complete the Certification

[[Page 39215]]

Form, Form UDOC (consisting of 2 pages), and Form A if:

(A) One or more plants at your plant site produced by synthesis in

calendar year 1996 (for the initial declaration) or in the previous

calendar year (for an annual declaration) in excess of 30 metric tons

of an individual unscheduled discrete organic chemical containing

phosphorus, sulfur or fluorine (``PSF-chemicals'') that was, isolated

for:

(1) Use; or

(2) sale as a specific end product; or

(B) Your plant site produced by synthesis in calendar year 1996

(for the initial declaration) or the previous calendar year (for an

annual declaration) in excess of 200 metric tons aggregate of all

unscheduled discrete organic chemicals (including PSF-chemicals) that

were, isolated or captured for:

(1) Use; or

(2) Sale as a specific end product.

(ii) Completion of Form B is optional.

(2) Exception. You are not required to complete declarations under

this paragraph if your plant site exclusively produced hydrocarbons or

explosives.

(3) Examples. See Supplement No. 1 to this part for examples of

UDOCs subject to the declaration requirements of this part, examples of

chemicals not produced by synthesis and therefore not subject to

declaration requirements of this part, and for examples of processes

that are not considered production by synthesis.

(c) If you are exempt from declaration requirements under the

provisions of paragraph (a)(1) through (a)(4) of this section, you need

not complete and submit forms. If you need assistance on chemical

determinations or other CWC-related matters, contact the Office of

Chemical & Biological Controls and Treaty Compliance, Treaty Compliance

Division at (703) 235-1335.

Sec. 715.2 Amended declaration.

If, after submitting the original declaration, you discover that

the previously submitted information is not accurate (e.g., change of

quantity, addition of a new chemical, relocation of facility, etc.),

you must complete a new Certification Form and the specific form being

amended. Only complete that portion of each form that corrects the

previously submitted information.

Sec. 715.3 Frequency and timing of declarations.

Declarations required under this part are due to BXA according to

the dates identified in Table 1 of this section. Required declarations

include:

(a) Initial declarations for production of unscheduled discrete

organic chemicals during calendar year 1996.

(b) Annual declarations on past production of unscheduled discrete

organic chemicals beginning with production figures for calendar year

1997.

Table 1 to Sec. 715.3.--Deadlines for Submission of Declarations for

Unscheduled Discrete Organic Chemicals Facilities

------------------------------------------------------------------------

Declarations Applicable forms Due dates

------------------------------------------------------------------------

Initial Declaration

(calendar year 1996):

Plant Site.............. Certification, UDOC, See note to this

A, B (optional). table.

Annual Declaration on Past

Activities (previous

calendar year, starting

with 1997):

Plant Site.............. Certification, UDOC, See note to this

A, B (optional). table.

February 13 of each

year following past

activities

requiring

declaration.

------------------------------------------------------------------------

Note to Table 1: The initial declaration and annual declaration of past

production for calendar years 1997 and 1998 pursuant to the provisions

of this part will be due [90 days after the effective date of the

final rule]. Thereafter, annual reports of past unscheduled discrete

organic chemical activities will be due to BXA by February 13th of

each year.

Supplement No. 1 to Part 715--Examples of Unscheduled Discrete Organic

Chemicals (UDOCs) and Production Processes

(1) Examples of UDOCs that you must report under the provisions

of this part include, but are not limited to, the following, unless

they are involved in processes other than ``production'' (i.e.

chemical synthesis), or were not isolated for:

(i) Use; or

(ii) Sale as a specific end product:

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

(B) 6-Chloro-2-Methyl Aniline (CAS #87-63-8);

(C) 2-Amino-3-Hydroxy benzoic Acid (CAS #548-93-6); and

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

(2) The following examples illustrate those chemicals not

produced by synthesis and therefore not subject to declaration

requirements:

(i) UDOCs produced coincidentally as byproducts of a

manufacturing, production or waste treatment process that are not

isolated or captured for:

(A) Use; or

(B) Sale as a specific end product during the process and are

routed to, or escape from, the waste stream of a stack, incinerator,

or waste treatment system or any other waste stream;

(ii) Mixtures of UDOCs produced coincidentally and not isolated

for:

(A) Use; or

(B) 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

reported unscheduled DOCs.;

(iv) UDOCs produced by the mixing (i.e. the process of combining

or blending into one mass) of previously reported UDOCs; and

(v) Intermediate UDOCs in transient form completely converted to

another reportable UDOC in the same process, whether batch or

continuous, and not isolated for:

(A) Use; or

(B) Sale as a specific end product.

(3) Following are examples of processes that involve chemicals

or mixtures of chemicals that are not considered production by

synthesis, and, thus, the end products would not be reported under

the provisions of this part:

(i) Fermentation;

(ii) Extraction;

(iii) Purification;

(iv) Distillation; and

(v) Filtration.

PART 716--INITIAL AND ROUTINE INSPECTIONS OF DECLARED FACILITIES

Sec.

716.1 General information on the conduct of initial and routine

inspections.

716.2 Purposes and types of inspections of declared facilities.

716.3 Warrants for inspections.

716.4 Scope and conduct of inspections.

716.5 Notification, duration and frequency of inspections.

716.6 Facility agreements.

716.7 Requirements for provisions of samples.

716.8 Report of inspection-related costs.

[[Page 39216]]

Supplement No. 1 To Part 716--Notification, Duration, and Frequency of

Inspections

Supplement No. 2 To Part 716--Schedule 1 Model Facility Agreement

Supplement No. 3 To Part 716--Schedule 2 Model Facility Agreement

Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR

36703.

Sec. 716.1 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).

(a) Overview. Each State Party to the CWC, including the United

States Government, has agreed to allow certain inspections of declared

facilities by inspectors employed by the Organization for the

Prohibition of Chemical Weapons (OPCW) to ensure that activities are

consistent with obligations under the CWC. The Department of Commerce

is responsible for leading, hosting and escorting inspections of all

facilities in the United States, except Department of Defense and

Department of Energy facilities and other United States Government

facilities that notify the USNA of their decision to be excluded from

the CWCR. United States Government facilities are those owned by or

leased to the U.S. Government, including facilities that are

contractor-operated.

(b) Declared facilities subject to initial and routine inspections.

(1) Schedule 1 facilities. 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.

(2) Schedule 2 facilities. Your declared plant site is subject to

inspection if one or more plants on your plant site produced, processed

or consumed, in any of the three previous calendar years, or you

anticipate it will produce, process or consume in the next calendar

year, any Schedule 2 chemical in excess of the following:

(i) 10 kg of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule

2, Part A, paragraph 3 in Supplement No. 1 to part 713 of this

subchapter);

(ii) 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 this subchapter); or

(iii) 10 metric tons of any chemical listed in Schedule 2, Part B

in Supplement No. 1 to part 713 of this subchapter.

(3) Schedule 3 facilities. Your declared plant site is subject to

inspection if one or more plants on your plant site produced during the

previous calendar year, or you anticipate it will produce in the next

calendar year, in excess of 200 metric tons aggregate of any Schedule 3

chemical (see Supplement No. 1 to part 714 of this subchapter).

(4) Unscheduled discrete organic chemical facilities. Your declared

plant site is subject to inspection if your plant site produced by

synthesis during the previous calendar year:

(i) More than 200 metric tons of unscheduled discrete organic

chemicals; or

(ii) More than 200 tons of an unscheduled discrete organic chemical

containing the elements phosphorus, sulfur or fluorine.

(c) Responsibilities of the Department of Commerce. As the host and

escort for the international inspector team for all industry

inspections, the Department of Commerce will lead on-site inspections,

provide preliminary notification to the operator of the industry site

of an impending inspection, dispatch an advance team to the site to

assist with inspection preparation, secure an appropriate warrant in

the event the facility does not consent to the inspection, escort the

inspection team on-site throughout the inspection process, assist the

inspection team with verification activities, during the initial

inspection, negotiate the development of a site-specific facility

agreement, if appropriate (see Sec. 716.6), and ensure that a routine

inspection adheres to the Convention, the Act, and any site-specific

facility agreement.

Sec. 716.2 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. During initial

inspections of declared Schedule 1 facilities, in addition to the

verification activities listed in paragraph (a)(1) of this section, the

U. S. Government team, led by the Department of Commerce, and the OPCW

Technical Secretariat inspection team will develop draft site-specific

facility agreements (see Sec. 716.6) for the conduct of subsequent,

routine inspections.

(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 (Sec. 716.6) developed during the initial

inspections and concluded between the United States Government and the

OPCW pursuant to the Convention.

(3) On-site monitoring. Declared Schedule 1 facilities are subject

to monitoring by on-site instruments.

(b) Schedule 2 facilities. (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

facilities are to verify:

(A) The absence of any Schedule 1 chemical, especially its

production, except if in accordance with the provisions of the

Convention;

(B) Consistency with declarations of levels of production,

processing or consumption of Schedule 2 chemicals; and

(C) That Schedule 2 chemicals are not diverted to activities

prohibited under the Convention.

(ii) During initial inspections, inspectors shall collect data 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, taking into account, inter

alia, the following criteria:

(A) The toxicity of the scheduled chemicals and of the end-products

produced with it, 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 facilities, in addition to the

verification activities listed in paragraph (b)(1) of this section, the

U.S. Government team, led by the

[[Page 39217]]

Department of Commerce, and the OPCW Technical Secretariat inspection

team will develop draft site-specific facility agreements for the

conduct of subsequent, routine inspections (see Sec. 716.6).

(ii) Routine inspections. During routine inspections of declared

Schedule 2 facilities, the verification activities listed in paragraph

(b)(1) of this section will be carried out pursuant to site-specific

facility agreements developed during the initial inspections (see

Se

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