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CWC Regulations
[Federal Register: December 30, 1999 (Volume 64, Number 250)]
[Rules and Regulations]
[Page 73743-73811]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de99-15]
DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 710 through 722
[Docket No. 990611158-9311-02]
RIN 0694-AB06
Chemical Weapons Convention Regulations
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Interim rule and request for comments.
PART 712--ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS
Sec.
712.1 Round to zero rule that applies to activities involving
Schedule 1 chemicals.
712.2 Prohibitions involving imports of Schedule 1 chemicals.
712.3 Initial and annual declaration requirements for facilities
engaged in the production of Schedule 1 chemicals for purposes not
prohibited by the CWC.
712.4 New Schedule 1 production facility.
712.5 Advance notification and annual report of all exports and
imports of Schedule 1 chemicals to, or from, other States' Parties.
712.6 Frequency and timing of declarations, reports and
notifications.
712.7 Amended declaration or report.
Supplement No. 1 to Part 712--Schedule 1 Chemicals
Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938 (59 FR 59099; 3 CFR, 1994 Comp., p.
950), as amended by E.O. 13094 (63 FR 40803; 3 CFR, 1998 Comp., p.
200); E.O. 13128, 64 FR 36703.
Sec. 712.1 Round to zero rule that applies to activities involving
Schedule 1 chemicals.
(a) See Sec. 711.6 of this subchapter for information on obtaining
the forms you will need to declare and report activities involving
Schedule 1 chemicals.
(b) Facilities that produce, export or import mixtures containing
less than 0.5% aggregate quantities of Schedule 1 chemicals as
unavoidable by-products or impurities may round to zero and are not
subject to the provisions of this part 712. Schedule 1 content may be
calculated by volume or weight, whichever yields the lesser percent.
Note that such mixtures may be subject to regulatory requirements of
other federal agencies.
Sec. 712.2 Prohibitions involving imports of Schedule 1 chemicals.
(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 BXA 45 calendar days prior to the import
pursuant to Sec. 712.5.
(b)(1) The provisions of paragraph (a) of this section do not apply
to the retention, ownership, possession, transfer, or receipt of a
Schedule 1 chemical by a department, agency, or other entity of the
United States, or by a person described in paragraph (b)(2) of this
section, pending destruction of the Schedule 1 chemical;
(2) A person referred to in paragraph (b)(1) of this section is:
(i) Any person, including a member of the Armed Forces of the
United States, who is authorized by law or by an appropriate officer of
the United States to retain, own, possess transfer, or receive the
Schedule 1 chemical; or
(ii) In an emergency situation, any otherwise non-culpable person
if the person is attempting to seize or destroy the Schedule 1
chemical.
Note to Sec. 712.2: 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 see the International
Traffic in Arms Regulations (22 CFR parts 120 through 130) for
Schedule 1 chemicals subject to the jurisdiction of the Department
of State.
Sec. 712.3 Initial and annual declaration requirements for facilities
engaged in the production of Schedule 1 chemicals for purposes not
prohibited by the CWC.
(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 any one of the calendar years 1997,
1998, or 1999. Note: Do not include production data in your initial
declaration. Such information should be included in your annual
declaration on past activities. See paragraph (a)(2) of this section.
(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 1 chemicals
in the previous calendar year, beginning with calendar year 1997. As a
declared Schedule 1 facility, 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 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) 200 calendar days
before commencing operations or increasing production which 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. 712.6, 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
[[Page 73770]]
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. If you produced in excess of 100
grams aggregate of Schedule 1 chemicals in the previous calendar year,
you must declare the entire quantity of such production, rounded to the
nearest gram. You must also declare the quantity of any Schedule 1,
Schedule 2 or Schedule 3 precursor chemical used to produce the
declared Schedule 1 chemical, rounded to the nearest gram. You must
further declare the quantity of each Schedule 1 chemical consumed or
stored by, or domestically transferred from, your facility, whether or
not the Schedule 1 chemical was produced by your facility, rounded to
the nearest gram. In calculating the amount of Schedule 1 chemical you
produced, consumed or stored, count only the amount of the Schedule 1
chemical(s) in a mixture, not the total weight of the mixture (i.e., do
not count the weight of the solution, solvent, or container).
Note to Sec. 712.3(c): Schedule 1 reaction intermediates which
exist or might exist during the course of synthesis to produce non-
scheduled chemicals and which cannot be isolated using available
technology should not be declared if the reaction is allowed to go
to completion, completely consuming the real or hypothetical
intermediates.
(d) ``Declared'' Schedule 1 facilities and routine inspections.
Only facilities that produced in excess of 100 grams aggregate of
Schedule 1 chemicals in calendar year 1997 or 1998, or 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 ``declared'' Schedule 1 facilities for the years
declared. A ``declared'' Schedule 1 facility is subject to initial and
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 or annual declaration
on anticipated activities (see paragraphs (a)(2) and (a)(3) 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. 712.4 New Schedule 1 production facility.
(a) Establishment of a new Schedule 1 production facility. (1) If
your facility was not declared under Sec. 712.3 in a previous calendar
year, and you intend to begin production of Schedule 1 chemicals at
your facility in quantities greater than 100 grams aggregate per year
for research, medical, or pharmaceutical purposes, you must provide an
initial declaration (a current detailed technical description of your
facility) to BXA at least 200 calendar days in advance of commencing
such production. Such facilities are considered ``new Schedule 1
production facilities'' and are subject to an initial inspection within
200 calendar days of submitting an initial declaration.
(2) New Schedule 1 production facilities that submit an initial
declaration pursuant to paragraph (a)(1) of this section are considered
approved Schedule 1 production facilities for purposes of the CWC,
unless otherwise notified by BXA within 30 days of receipt by BXA of
that initial declaration.
(b) Types of declaration forms required. If your new Schedule 1
production facility will produce in excess of 100 grams aggregate of
Schedule 1 chemicals, you must complete the Certification Form, Form 1-
1 and Form A. You must also provide a detailed technical description of
the new facility or its relevant parts, including a detailed diagram of
the declared areas in the facility, and an inventory of equipment in
the declared areas.
(c) Two hundred days after a new Schedule 1 production facility
submits its initial declaration, it is subject to the annual
declaration requirements of Sec. 712.3(a)(2) and (a)(3).
Sec. 712.5 Advance notification and annual report of all exports
<SUP>1</SUP> 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 to the OPCW the advance notifications and a
detailed annual declaration of each actual export or import of a
Schedule 1 chemical from/to the United States. Note that the
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 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 under 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 exporter and importer;
(H) Complete street address(es) of exporter and importer;
[[Page 73771]]
(I) U.S. export license or control number, if known; and
(J) Company identification number, once assigned by BXA.
(ii) Send the notification by fax to (202) 482-1731 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 subject to an
export license requirement either under the EAR or the ITAR, the
exporter must have applied for and been granted a license (see
Secs. 742.2 and 742.18 of the EAR, or the ITAR at 22 CFR parts 120
through 130).
(b) Annual report requirements for exports and imports of Schedule
1 chemicals. Any person subject to the CWCR that exported or imported
any quantity of Schedule 1 chemical to or from another State Party
during the previous calendar year, beginning with calendar year 1997,
has a reporting requirement under this section.
(1) Annual report on exports and imports. Declared and undeclared
facilities, trading companies, and any other person subject to the CWCR
that exported or imported any quantity of a Schedule 1 chemical to or
from another State Party in a previous calendar year, beginning with
calendar year 1997, must submit an annual report on exports and
imports.
Note to paragraph (b)(1): The U.S. Government will not submit to
the OPCW company-specific information relating to the export or import
of Schedule 1 chemicals contained in reports. The U.S. Government will
add all export and import information contained in reports to establish
the U.S. national aggregate declaration on exports and imports.
(2) Report forms to submit. (i) Declared Schedule 1 facilities. (A)
If your facility declared production of a Schedule 1 chemical and you
also exported or imported any amount of that same Schedule 1 chemical,
you may report the export or import by:
(1) Submitting, along with your declaration, Form 1-3 for that same
Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form
B is optional; or
(2) Submitting, separately from your declaration, a Certification,
Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported.
Attach Form A, as appropriate; Form B is optional.
(B) If your facility declared production of a Schedule 1 chemical
and exported or imported any amount of a different Schedule 1 chemical,
you may report the export or import by:
(1) Submitting, along with your declaration, a Form 1-3 for each
Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form
B is optional; or
(2) Submitting, separately from your declaration, a Certification
Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be
reported. Attach Form A, as appropriate; Form B is optional.
(ii) If you are an undeclared facility, trading company, or any
other person subject to the CWCR, and you exported or imported any
amount of a Schedule 1 chemical, you must submit a Certification Form,
Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported.
Attach Form A, as appropriate; Form B is optional.
(c) Paragraph (a) of this section does not apply to the activities
and persons set forth in Sec. 712.2(b).
Sec. 712.6 Frequency and timing of declarations, reports and
notifications.
Declarations, reports and notifications required under this part
must be postmarked by the appropriate date identified in Table 1 of
this section. Required declarations, reports and notifications include:
(a) Initial declaration (technical description);
(b) Annual declaration on past activities (production during the
previous calendar year, beginning with 1997);
(c) Annual report on exports and imports from trading companies,
facilities and other persons (during the previous calendar year,
beginning with 1997);
(d) Annual declaration on anticipated activities (production in the
next calendar year, beginning in calendar year 2000 for production
anticipated for calendar year 2001);
(e) Advance notification of any export to or import from another
State Party; and
(f) Initial declaration of a new Schedule 1 production facility.
Table 1 to Sec. 712.6.--Deadlines for Submission of Schedule 1
Declarations
------------------------------------------------------------------------
Declarations and
notifications Applicable forms Due dates
------------------------------------------------------------------------
Initial Declaration-- Certification, 1-1, March 30, 2000.
Declared facility A, B (optional).
(technical description).
Annual Declaration on Past Certification, 1-1, For 1997, 1998, and
Activities (previous 1-2, 1-2A, 1-2B, 1- 1999 March 30,
calendar year, starting 3 (if also exported 2000. Thereafter,
with 1997)--Declared or imported), A (as February 28.
facility (past production). appropriate), B
(optional).
Annual report on exports and Certification, 1-1, For 1997, 1998, and
imports (previous calendar 1-3, A (as 1999 March 30,
year, starting with 1997) appropriate), B 2000. Thereafter,
(facility, trading company, (optional). February 28.
other persons).
Annual Declaration on Certification, 1-1, August 3 of each
Anticipated Activities 1-4, A (as year prior to the
(next calendar year). appropriate), B calendar year in
(optional). which anticipated
activities will
take place,
beginning in
calendar year 2000.
Advance Notification of any Notify on 45 calendar days
export to or import from letterhead. See prior to the export
another State Party. Sec. 712.5 of this or import.
subchapter.
Initial Declaration of a new Certification, 1-1, 200 calendar days
Schedule 1 facility. A (as appropriate), before commencing
B (optional). such production.
------------------------------------------------------------------------
Sec. 712.7 Amended declaration or report.
(a) You must submit an amended declaration or report for changes to
previously submitted information on chemicals, activities and end-use
purposes or the addition of new chemicals, activities and end-use
purposes.
(b) For declared Schedule 1 facilities, changes that may affect
verification activities, such as changes of owner or operator, company
name, address, or
[[Page 73772]]
inspection point of contact, require an amended declaration. Non-
substantive typographical errors and changes to the declaration point
of contact do not require submission of an amended declaration or
report and may be corrected in subsequent declarations or reports.
(c) For undeclared Schedule 1 facilities, trading companies and
other persons, changes that do not directly affect the purpose of the
Convention, such as changes to a company name, address, point of
contact, or non-substantive typographical errors, do not require
submission of an amended report and may be corrected in subsequent
reports.
(d) If you are required to submit an amended declaration or report
pursuant to paragraph (a) or (b) of this section, you must complete and
submit a new Certification Form and the specific form(s) 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 712--Schedule 1 Chemicals
------------------------------------------------------------------------
(CAS registry
number)
------------------------------------------------------------------------
A. Toxic chemicals:
(1) O-Alkyl (<C10, incl. cycloalkyl)
alkyl (Me, Et, n-Pr or i-Pr)-phosphonofluoridates
e.g. Sarin: O-Isopropyl (107-44-8)
methylphosphonofluoridate....................
Soman: O-Pinacolyl methylphosphonofluoridate.. (96-64-0)
(2) O-Alkyl (<C10, incl. cycloalkyl) N,N- (77-81-6)
dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidocyanidates e.g. Tabun: O-Ethyl N,N-
dimethyl phosphoramidocyanidate..................
(3) O-Alkyl (H or <C10, incl. (50782-69-9)
cycloalkyl) S-2-dialkyl (Me, Et, n-Pr or i-Pr)-
aminoethyl alkyl (Me, Et, n-Pr or i-Pr)
phosphonothiolates and corresponding alkylated or
protonated salts e.g. VX: O-Ethyl S-2-
diisopropylaminoethyl methyl phosphonothiolate...
(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) (676-99-3)
phosphonyldifluorides e.g. DF:
Methylphosphonyldifluoride.......................
(10) O-Alkyl (H or <C10, incl. (57856-11-8)
cycloalkyl) O-2-dialkyl (Me, Et, n-Pr or i-Pr)-
aminoethyl alkyl (Me, Et, N-Pr or i-Pr)
phosphonites and corresponding alkylated or
protonated salts e.g. QL: O-Ethyl O-2-
diisopropylaminoethyl methylphosphonite..........
(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).
Dated: December 16, 1999.
R. Roger Majak,
Assistant Secretary for Export Administration.
[FR Doc. 99-33149 Filed 12-30-99; 8:45 am]
Billing Code: 3510-33-P
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