United States of America Implementation of Transfers Regime under Article VI of the Chemical Weapons Convention (CWC)

Topics of Discussion

• CWC transfer requirements
• U.S. legislative and regulatory authorities for implementation of CWC transfer regime
• Scope of U.S. transfers regime
• U.S. export and import regulations for implementation of CWC transfer regime
• U.S. Compliance Activities

CWC Transfer Requirements

• Prohibition on transfers of Scheduled chemicals
• Transfer of any toxic
• chemical or precursor for prohibited purposes
• Exports to and imports from Non-States Parties (NSPs) of Schedule 1 and 2 chemicals
• Retransfers of Schedule 1 chemicals

CWC Transfer Requirements

• Transfer monitoring of Scheduled chemicals

• Advanced notifications of Schedule 1 transfers generally 30 days prior to export or import
• Ensure exports to States Parties of Schedule 1 chemicals are used only for research, medical, pharmaceutical or protective purposes
• Ensure imports of Schedule 1 chemicals result in a State Party having an aggregate amount of chemicals equal to or less than 1 Metric Ton
• Aggregate National Data declaration on exports and imports of Schedule 1, 2 and 3 chemicals
• End-Use Certificate requirement for exports of Schedule 3 chemicals to NSPs

CWC Transfer Requirements

• CWC transfer requirements do not include:
• Licensing of exports or imports of:
• Schedule 1, 2 and 3 chemicals
• Manufacturing or processing equipment or software
• Transfers of technical data
• However, States Parties should establish a mechanism to enforce CWC prohibitions
• U.S. implemented prohibitions by establishing licensing requirements

CWC Transfer Requirements

• UN Security Resolution 1540
• Maintain effective national export and transshipment controls . . .
• Complements Article VI and VII requirement to establish administrative measures to implement and reinforce CWC transfer restrictions

U.S. Legal and Regulatory Authorities for Transfer Controls

• Legislative measures
• Arms Export Control Act
• Export Administration Act
• CWC Implementation Act
• Administrative measures
• Export Provisions
• Export Administration Regulations
• International Traffic in Arms Regulations
• CWC Regulations
• Import Provisions
• Alcohol, Tobacco, Firearms, and Explosives Regulations
• CWC Regulations

Scope of U.S. Transfer Regime

• CWC transfer requirements apply to:
• U.S. persons
• Declared and undeclared plant sites/facilities
• Trading companies

U.S. Export Regulations

International Traffic in Arms Regulations

• U.S. Munitions List
• Scheduled chemicals considered defense articles and are generally not commercially traded
• All Schedule 1 chemicals, except Ricin and Saxitoxin
• Certain Schedule 2 chemicals, i.e.,
• Amiton, BZ, and certain Schedule 2B.(4) chemicals
• License required for exports to all destinations
• No low concentration exemptions

U.S. Export Regulations

Export Administration Regulations (EAR)

• Primary regulation for controlling dual-use exports
• Commerce Control List (CCL)
  • Controls CWC Scheduled chemicals not subject to the ITAR
  • Establishes low concentration exemptions
• Establishes Schedule 1 notification and reporting requirement

CWC Regulations (CWCR)

• Establishes export reporting requirement for incorporation into Aggregate National Data declaration
• Establishes low concentration exemptions
• Establishes duplicate Schedule 1 notification requirement

U.S. Export Regulations

EAR establishes a license requirement to:

• Control all toxic chemicals and precursors, regardless whether subject to data monitoring under the CWC, e.g., inorganic chemicals
• Exception to license requirement for certain Scheduled chemicals to certain countries
• License required for all exports to embargoed and designated terrorist supporting destinations

U.S. Export Regulations

Implement the prohibition on exports of Schedule 1 and 2 chemicals to NSPs

• License applications are subject to a policy of denial

Implement prohibition on retransfer of Schedule 1 chemicals

Implement requirements to ensure Schedule 1 chemicals exported to States Parties are used only for research, medical, pharmaceutical or protective purposes

Implement End-Use Certificate for exports of Schedule 3 chemicals to NSPs

Absent receipt of EUC, a license is required which is subject to a policy of denial

Exempt low concentrations of Schedule 2 and 3 chemicals

Exempt consumer goods packaged for retail sale for personal use for Schedule 2 and 3 chemicals

U.S. Export Regulations

Export Administration Regulations (EAR)

• Schedule 3 End-Use Certificate requirements:
• All exports to Non-States Parties require an End-Use Certificate, including sample shipments, except mixtures of 30 percent or less
• Certificate must be issued by NSP agency responsible for foreign affairs or any other agency designated agency
• Certificate may cover aggregate quantities against which multiple shipments may be made to a single consignee
• Licenses approved for other reasons are conditioned with requirement for End-Use Certificate or license is invalid

U.S. Export Regulations

• Unilateral Controls:
• Controls on production technology for certain Schedule 2 and Schedule 3 chemicals for exports and reexports to NSPs, except Israel and Taiwan
• PFIB
• Phosgene
• Cyanogen Chloride
• Hydrogen Cyanide

U.S. Export Regulations

• Alcohol, Tobacco, Firearms, and Explosives (ATFE) Regulations
• U.S. Munitions Import List
• Permit is required for imports of certain Schedule 1, 2 and 3 chemicals
• Permit is required for import from all countries, except Canada, including all NSPs
• CWC Regulations
  • Establishes prohibition on imports of Schedule 1 and 2 chemicals from NSPs
  • Establishes import reporting requirement for incorporation into AND declaration
  • Establishes mixture exemptions

U.S. Export Regulations

• End-Use Certificates
• 200+ End-Use Certificates
• Verify quantity exported against each Certificate
• Review licenses issued for other reasons
• Review Sample Shipment Reports
• Review CWC Annual Reports on Exports and Imports
• Referred 10 companies to enforcement authorities for administrative action or civil penalties
• Sample Shipment Reports
  • Determine compliance with CWC Annual Report on Export requirement

U.S. Export Regulations

• Schedule 1 exports and imports
• Verify if each proposed transfer occurred
• Notify Technical Secretariat if proposed transfer did not occur
• Schedule 1, 2, and 3 chemicals
• Verify licenses and other information (e.g., Customs documents) to determine if export/import occurred and whether a Report was submitted

U.S. Export Regulations

• Steps for establishing an export/import AND regime:
• Establish clear requirements for controlling exports and imports
• List of chemicals
• Quantity thresholds
• Exemptions
• Mechanism for declaring or reporting
• Establish compliance program

"Thank you for your attention"