28 April 2006
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[Federal Register: April 27, 2006 (Volume 71, Number 81)]
[Rules and Regulations]
[Page 24917-24970]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap06-9]
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Part II
Department of Commerce
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Bureau of Industry and Security
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15 CFR Parts 711, 712 et al.
Chemical Weapons Convention Regulations; Final Rule
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720,
721, and 722
[Docket No. 990611158-5327-06]
RIN 0694-AB06
Chemical Weapons Convention Regulations
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: On April 25, 1997, the United States ratified the Convention
on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on Their Destruction, also known as the
Chemical Weapons Convention (CWC or Convention). The Bureau of Industry
and Security (BIS) published an interim rule, on December 30, 1999,
that established the Chemical Weapons Convention Regulations (CWCR) to
implement the provisions of the CWC affecting U.S. industry and other
U.S. persons. The CWCR include requirements to report certain
activities, involving scheduled chemicals and unscheduled discrete
organic chemicals, and to provide access for on-site verification by
international inspectors of certain facilities and locations in the
United States. This final rule updates the CWCR to remove outdated
provisions and include additional requirements identified in the
implementation of the CWC and by clarifying other CWC requirements.
DATES: This rule is effective April 27, 2006. Although there is no
formal comment period, public comments on this regulation are welcome
on a continuing basis.
ADDRESSES: You may submit comments, identified by RIN 0694-AB06, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: public.comments@bis.doc.gov. Include ``RIN 0694-
AB06'' in the subject line of the message.
Fax: (202) 482-3355. Please alert the Regulatory Policy
Division, by calling (202) 482-2440, if you are faxing comments.
Mail or Hand Delivery/Courier: Willard Fisher, U.S.
Department of Commerce, Bureau of Industry and Security, Regulatory
Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705,
Washington, DC 20230, ATTN: RIN 0694-AB06.
FOR FURTHER INFORMATION CONTACT: For questions of a general or
regulatory nature, contact the Regulatory Policy Division, telephone:
(202) 482-2440. For program information on declarations, reports,
advance notifications, chemical determinations, recordkeeping,
inspections and facility agreements, contact the Treaty Compliance
Division, Office of Nonproliferation and Treaty Compliance, telephone:
(703) 605-4400; for legal questions, contact Rochelle Woodard, Office
of the Chief Counsel for Industry and Security, telephone: (202) 482-
5301.
SUPPLEMENTARY INFORMATION:
Background
I. Summary of CWCR Changes Contained in This Final Rule
On April 25, 1997, the United States ratified the Convention on the
Development, Production, Stockpiling and Use of Chemical Weapons and on
Their Destruction, also known as the Chemical Weapons Convention (CWC
or Convention). The CWC, which entered into force on April 29, 1997, is
an arms control treaty with significant nonproliferation aspects. As
such, the CWC bans the development, production, stockpiling or use of
chemical weapons and prohibits States Parties to the CWC from assisting
or encouraging anyone to engage in a prohibited activity. The CWC
provides for declaration and inspection of all States Parties' chemical
weapons and chemical weapon production facilities, and oversees the
destruction of such weapons and facilities. To fulfill its arms control
and nonproliferation objectives, the CWC also establishes a
comprehensive verification scheme and requires the declaration and
inspection of facilities that produce, process or consume certain
``scheduled'' chemicals and unscheduled discrete organic chemicals,
many of which have significant commercial applications. The CWC also
requires States Parties to report exports and imports and to impose
export and import restrictions on certain chemicals. These requirements
apply to all entities under the jurisdiction and control of States
Parties, including commercial entities and individuals. States Parties
to the CWC, including the United States, have agreed to this
verification scheme in order to provide transparency and to ensure that
no State Party to the CWC is engaging in prohibited activities.
The Chemical Weapons Convention Implementation Act of 1998 (the Act
or CWCIA) (22 U.S.C. 6701 et seq.), enacted on October 21, 1998,
authorizes the United States to require the U.S. chemical industry and
other private entities to submit declarations, notifications and other
reports and also to provide access for on-site inspections conducted by
inspectors sent by the Organization for the Prohibition of Chemical
Weapons. Executive Order (E.O.) 13128 delegates authority to the
Department of Commerce to promulgate regulations, obtain and execute
warrants, provide assistance to certain facilities, and carry out
appropriate functions to implement the CWC, consistent with the Act.
The Department of Commerce implements CWC import restrictions under the
authority of the International Emergency Economic Powers Act, the
National Emergencies Act, and E.O. 12938, as amended by E.O. 13128. The
Departments of State and Commerce have implemented the CWC export
restrictions under their respective export control authorities. E.O.
13128 designates the Department of State as the United States National
Authority (USNA) for purposes of the CWC and the Act.
On December 30, 1999, the Bureau of Industry and Security (BIS),
U.S. Department of Commerce, published an interim rule that established
the Chemical Weapons Convention Regulations (CWCR) (15 CFR Parts 710-
722). The CWCR implemented the provisions of the CWC, affecting U.S.
industry and U.S. persons, in accordance with the provisions of the
Act. This final rule revises the CWCR by updating them to remove
outdated provisions (e.g., the initial declaration requirements in
parts 713, 714, and 715) and include additional requirements identified
as necessary for the implementation of the CWC provisions and by
clarifying other CWC requirements. The changes made by this rule were
addressed in a proposed rule and request for public comments that BIS
published on December 7, 2004.
Specifically, this final rule makes the following revisions to the
CWCR:
A. Revisions to Section 710.1 of the CWCR (Definitions of Terms Used in
the CWCR)
This rule revises Sec. 710.1 of the CWCR by amending the
definition of ``domestic transfer'' to clarify that the term, as
applied to the declaration requirements for Schedule 2 or Schedule 3
chemicals under the CWCR, means the movement of a Schedule 2 or
Schedule 3 chemical, in quantities and concentrations greater than the
specified thresholds under the convention, outside the geographical
boundary of a facility in the United
[[Page 24919]]
States to another destination in the United States, for any purpose.
This rule adds a definition for the term ``intermediate'' to Sec.
710.1 of the CWCR in order to clarify the use of that term in Sec.
712.5(d) and Supplement No. 2 to part 715 of the CWCR. Section 710.1 of
the CWCR is amended to define ``intermediate'' as ``a chemical formed
through chemical reaction that is subsequently reacted to form another
chemical.'' The definition of ``intermediate'' also clarifies its use
in Sec. Sec. 712.5(d), 713.2(a)(2)(ii) and 714.1(a)(2)(ii), whereby
Schedule 1, Schedule 2 and Schedule 3 chemicals that are intermediates,
but not transient intermediates, must be considered when determining if
a chemical is subject to declaration. Lastly, Supplement No. 2 to part
715 of the CWCR, which provides examples of unscheduled discrete
organic chemicals (UDOCs) and UDOC production, indicates that
intermediate UDOCs used in a single or multi-step process to produce
another declared UDOC are not subject to declaration requirements under
the CWCR.
In addition, this rule adds a definition of the term ``advance
notification'' to Sec. 710.1 of the CWCR to clarify the use of that
term in part 712 of the CWCR. Section 710.1 of the CWCR defines
``advance notification'' to mean ``a notice informing BIS of a
company's intention to export to or import from a State Party a
Schedule 1 chemical.'' Advance notifications must be submitted to BIS
at least 45 days prior to the proposed export or import, except for
exports or imports of 5 milligrams or less of saxitoxin for medical/
diagnostic purposes which may be submitted to BIS at least 3 days prior
to export or import. The definition contained in this rule also
indicates that this notification requirement is in addition to any
export license requirement under the Export Administration Regulations
(EAR) (15 CFR Parts 730-799) or the International Traffic in Arms
Regulations (ITAR) (22 CFR Parts 120-130), or import license
requirement under the Alcohol, Tobacco, Firearms and Explosives
Regulations (27 CFR part 447).
The definition of the term ``production'' in Sec. 710.1 of the
CWCR is revised by adding certain notes that incorporate decisions by
the Organization for the Prohibition of Chemical Weapons' Conference of
the States Parties (OPCW/CSP) regarding the production of Schedule 1,
2, and 3 chemicals. The first note clarifies that the production of
Schedule 1 chemicals includes ``formation through chemical synthesis as
well as processing to extract and isolate Schedule 1 chemicals.'' The
second note clarifies that the ``production'' of a Schedule 2 or
Schedule 3 chemical ``means all steps in the production of a chemical
in any units within the same plant through chemical reaction, including
any associated processes (e.g., purification, separation, extraction,
distillation, or refining) in which the chemical is not converted into
another chemical. The exact nature of any associated process (e.g.,
purification, etc.) is not required to be declared.''
This rule adds a definition of the term ``production by synthesis''
in Sec. 710.1 of the CWCR to clarify the use of the term in Sec.
715.1 of the CWCR (i.e., declaration of production by synthesis of
UDOCs for purposes not prohibited by the CWC) and Supplement No. 2 to
part 715 of the CWCR (i.e., examples of activities that are not
considered to be production by synthesis under part 715 of the CWCR).
Section 710.1 of the CWCR defines ``production by synthesis'' to mean
``production of a chemical from its reactants.'' This definition
replaces the definition of the term ``synthesis'' in Sec. 710.1 of the
CWCR. In addition, a new Supplement No. 2 is added to Part 710 of the
CWCR to define the types of production covered under the CWCR.
This rule also amends Sec. 710.1 of the CWCR to add a definition
of the term ``protective purposes,'' as it relates to Schedule 1
chemicals, stating that protective purposes means any purpose directly
related to protection against toxic chemicals and to protection against
chemical weapons.
Finally, this rule amends Sec. 710.1 of the CWCR by adding a
definition of the term ``transient intermediate'' in order to clarify
the scope of the declaration requirements that apply to the production
of certain scheduled chemicals. Section 710.1 of the CWCR defines the
term ``transient intermediate'' to mean ``any chemical that is produced
in a chemical process, but that only exists for a very short period of
time and cannot be isolated, even by modifying or dismantling the
plant, altering the chemical production process operating conditions,
or stopping the chemical production process altogether.''
B. Amendments to Section 710.2 of the CWCR (Scope of the CWCR)
This rule amends Sec. 710.2(a) of the CWCR by removing the phrase
``The CWCR declaration, reporting, and inspection requirements apply *
* *'' from that paragraph. Removal of this phrase clarifies which
persons and facilities are generally subject to the provisions of the
CWCR.
C. Amendments to Section 710.6 of the CWCR (Relationship Between the
CWCR and the Export Administration Regulations)
This rule amends Sec. 710.6 of the CWCR to include a reference to
Export Control Classification Number (ECCN) 1C395 on the Commerce
Control List (CCL), which is in Supplement No. 1 to part 774 of the
EAR. ECCN 1C395 controls the following items: (i) mixtures that contain
more than 10 percent, but less than 30 percent, by weight of any single
CWC Schedule 2 chemical identified in ECCN 1C350.b and (ii) certain
medical, analytical, diagnostic and food testing kits that contain CWC
Schedule 2 or Schedule 3 chemicals controlled by ECCN 1C350.b or .c,
respectively, in an amount not exceeding 300 grams per chemical.
D. Amendments to Supplement No. 1 to Part 710 of the CWCR (List of
States Parties to the CWC)
This rule amends Supplement No. 1 to part 710 of the CWCR (States
Parties to the Convention on The Prohibition of The Development,
Production, Stockpiling, and Use of Chemical Weapons and on Their
Destruction) by updating the list of States Parties to include the
following recent additions: Afghanistan, Andorra, Antigua and Barbuda,
Azerbaijan, Belize, Bhutan, Cambodia, Cape Verde, Chad, Colombia,
Democratic Republic of the Congo, Djibouti, Dominica, Eritrea, Gabon,
Grenada, Guatemala, Haiti, Honduras, Jamaica, Kazakhstan, Kiribati,
Kyrgyzstan, Liberia, Libya, Madagascar, Malaysia, Marshall Islands,
Micronesia (Federated States of), Mozambique, Nauru, Niue, Palau,
Rwanda, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa,
San Marino, Sao Tome and Principe, Serbia and Montenegro, Sierra Leone,
Solomon Islands, Thailand, Timor Leste, Tonga, Tuvalu, Uganda, United
Arab Emirates, Vanuatu, Yemen, and Zambia. As of March 25, 2006, 178
countries had become States Parties to the CWC.
E. Amendments to Part 711 of the CWCR (General Information Regarding
Declaration, Reporting and Advance Notification Requirements)
This rule adds a new Sec. 711.3 that establishes BIS's authority
to contact any company to determine whether it is in compliance with
the CWCR. Information requested may relate to the production,
processing, consumption, export, import, or other activities involving
scheduled chemicals and UDOCs described in Parts 712 through 715 of the
CWCR. Any person or facility
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subject to the CWCR and receiving such a request for information will
be required to provide a response to BIS within the time-frame
specified in the request. However, this requirement does not, in
itself, impose a requirement to create new records or maintain existing
records.
This rule amends Sec. 711.3 of the CWCR by moving it to Sec.
711.4 and specifying a time period within which BIS will respond to
chemical determination requests. BIS will respond, in writing, to a
chemical determination request within 10 working days of receipt of the
request.
This rule removes the declaration and reporting requirements in
Sec. 711.4 of the CWCR concerning activities that occurred prior to
December 30, 1999, since these requirements should already have been
satisfied. A new Sec. 711.7 is added to provide information on where
to submit declarations, advance notifications, and reports.
This rule also adds a new Sec. 711.8 that contains instructions
for applying for authorization to submit electronic declarations and
reports through the Web-Data Entry System for Industry (WebDESI). This
electronic submission procedure fulfills the requirements of the
Government Paperwork Elimination Act (44 U.S.C. 3504).
F. Amendments to Part 712 of the CWCR (Activities Involving Schedule 1
Chemicals)
This rule adds a new Sec. 712.2(a) that prohibits the production
of Schedule 1 chemicals for protective purposes, as defined in Sec.
710.1 of the CWCR. This change is consistent with the provisions in
Part VI of the CWC Annex on Implementation and Verification (the
``Verification Annex'') that describe production activities not
prohibited under the CWC. These provisions restrict production of
Schedule 1 chemicals for protective purposes to a single small-scale
facility approved by the State Party and one facility outside of a
single small-scale facility, which also must be approved by the State
Party. The only two facilities in the United States authorized to
produce Schedule 1 chemicals for protective purposes are owned and
operated by the U.S. Department of Defense--these facilities are not
subject to the CWCR, pursuant to Sec. 710.2(a)(1)(i). Therefore, all
facilities subject to the CWCR are prohibited from producing Schedule 1
chemicals for protective purposes.
This rule also clarifies that initial declarations submitted in
February 2000 remain valid until they are either amended or rescinded.
If you plan to alter the technical layout of your declared facility,
you must submit an amended declaration to BIS at least 200 calendar
days prior to making any such change to your facility.
This rule revises Sec. 712.3 of the CWCR by moving the annual
declaration requirements for Schedule 1 facilities to new Sec. 712.5.
This rule amends Sec. 712.4 of the CWCR to clarify the declaration
requirements that apply to the establishment of new Schedule 1 chemical
production facilities. If a Schedule 1 chemical production facility has
never been declared in a previous calendar year or its initial
declaration has been withdrawn in accordance with the requirements of
amended Sec. 712.5(g) of this rule, you must submit an initial
declaration (including a current detailed technical description of the
facility) to BIS at least 200 calendar days prior to commencing
production of Schedule 1 chemicals at the facility in quantities
greater than 100 grams aggregate per year. Such facilities are
considered to be ``new Schedule 1 chemical production facilities'' and
are subject to an initial inspection within 200 calendar days of the
submission of the initial declaration to BIS.
This rule revises the remainder of part 712 of the CWCR, as
follows: (1) Advance notification and annual report requirements for
Schedule 1 chemical exports and imports are moved from Sec. 712.5 of
the CWCR to Sec. 712.6; (2) provisions for Table 1 to Sec. 712.6 of
the CWCR are moved to new Supplement No. 2 to part 712 of the CWCR; (3)
procedures concerning declarations and reports returned without action
by BIS are described in new Sec. 712.8 of the CWCR; and (4) the due
date for Annual Declarations for Anticipated Activities is changed from
August 3 to September 3, thereby giving Schedule 1 facilities an
additional 30 days in which to complete and submit their declarations.
This rule amends the CWCR provisions that require advance
notification of exports and imports of Schedule 1 chemicals by
establishing an exception to the requirement that BIS must be notified
at least 45 calendar days prior to the export or import of a Schedule 1
chemical to or from another State Party. Advance notification of the
export or import of 5 milligrams or less of Saxitoxin--B(7), which is
listed in Supplement No. 1 to part 712 of the CWCR, for medical or
diagnostic purposes only, must be submitted to BIS at least 3 calendar
days (rather than 45 calendar days) prior to the date of export or
import.
This rule amends the CWCR provisions concerning requirements for
amending Schedule 1 declarations and reports. Section 712.7 of the CWCR
is amended by clarifying and specifying deadlines for: (1) The types of
changes to information on Schedule 1 chemicals and activities in the
Annual Declaration of Past Activities that would require submission of
an amended declaration to BIS; (2) the types of changes to export or
import information in the Annual Reports on Exports and Imports from
undeclared facilities, trading companies and U.S. persons that would
require submission of an amended report to BIS; and (3) the types of
changes to Schedule 1 chemical facility information (e.g., change in
company name, address, declaration point of contact, ownership) that
would require submission of an amended declaration or report to BIS. In
addition, this rule adds a new Sec. 712.7(d) to the CWCR that provides
guidance concerning the submission of inspection-related amendments.
Amended declarations, based on the final inspection report, must be
submitted to BIS within 45 calendar days of the date of BIS's post-
inspection letter.
This rule adds a new Sec. 712.8 to the CWCR that provides guidance
concerning certain Schedule 1 declarations and reports that are
returned without action. In these cases, BIS would return without
action (RWA) any Schedule 1 declarations or reports that are determined
to be not required by the CWCR. The returned declaration or report
would be accompanied by a cover letter explaining why the declaration
or report is being returned without action. BIS would retain a copy of
the RWA letter, but would not maintain copies of any declarations or
reports that were returned without action.
Finally, the provisions previously contained in Sec. 712.6 and
Table 1 to Sec. 712.6 of the CWCR, which provided information on the
deadlines for submitting Schedule 1 declarations, reports, advance
notifications and amendments to BIS, are updated and moved to new Sec.
712.9 and new Supplement No. 2 to part 712 of the CWCR, respectively.
G. Amendments to Part 713 of the CWCR (Activities Involving Schedule 2
Chemicals)
This rule adds a prohibition against exports of Schedule 2
chemicals to States not Party to the CWC in Sec. 713.1(a). Prior to
the publication of this rule, the CWCR prohibited imports of Schedule 2
chemicals from States not Party to the CWC, but did not prohibit
exports of Schedule 2 chemicals to such countries. Section 742.18 of
the EAR requires a license to export Schedule 2
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chemicals to States not Party to the CWC and BIS applies a general
policy of denial to license applications for such exports. A license is
also required to export Schedule 2 chemicals that are controlled under
the ITAR.
This rule revises Sec. 713.1(b), which exempts certain mixtures
containing Schedule 2 chemicals from the export and import prohibitions
contained in Sec. 713.1(a) of the CWCR, as amended by this rule. Prior
to the publication of this rule, Section 713.1(b) of the CWCR exempted
mixtures containing 10 percent or less, by weight, of any single
Schedule 2 chemical. This rule revises Sec. 713.1(b) of the CWCR to
exempt the following mixtures: (i) Mixtures containing 1 percent or
less, by weight, of any single Schedule 2A or 2A* chemical; (ii)
mixtures containing 10 percent or less, by weight, of any single
Schedule 2B chemical; and (iii) products identified as consumer goods
packaged for retail sale for personal use or packaged for individual
use. However, note that the consumer goods exemption for mixtures that
contain Schedule 2 chemicals identified under ECCN 1C350 on the CCL
(Supplement No. 1 to part 774 of the EAR) applies only to products
identified as consumer goods packaged for retail sale for personal use
and not to products packaged for individual use (the latter are exempt
only by the CWCR and not by the Australia Group controls under the
EAR).
In addition, this rule: (i) Removes the provisions concerning
declarations on past production of Schedule 2 chemicals for chemical
weapons purposes (previously found in Sec. 713.2 of the CWCR); (ii)
removes the provisions concerning Schedule 2 initial declarations and
initial reports on exports and imports (previously found in Sec. Sec.
713.3(a)(1)(i) and 713.4(c)(1) and (c)(2) of the CWCR); (iii) amends
the provisions providing guidance concerning amendments to declarations
and reports (previously found in Sec. 713.7 of the CWCR); (iv) moves
the provisions concerning the frequency and timing of declarations and
reports (previously found in Sec. 713.6 of the CWCR) to Sec. 713.7;
and (v) provides a description of the procedures that BIS will follow
concerning declarations and reports RWA'd in Sec. 713.6 of the CWCR.
This rule moves the Schedule 2 chemical annual declaration
requirements previously described in Sec. 713.3 of the CWCR to Sec.
713.2 and amends this section to clarify that the scope of Schedule 2
production activities includes any associated processing steps of the
Schedule 2 chemical and intermediates. Only transient intermediates are
exempted. This clarification will ensure that the CWCR requirements
apply to Schedule 2 chemical production where Schedule 2 chemicals are
below the applicable concentration threshold when reacted, but
subsequently are concentrated above the threshold during in-line
processing.
The provisions previously included in Sec. 713.6 and Table 1 to
Sec. 713.6 of the CWCR, which contained information on the deadlines
for submitting declarations, reports, advance notifications, and
amendments to BIS, are moved to Sec. 713.7 and new Supplement No. 2 to
part 713 of the CWCR, respectively. In addition, the CWCR provisions on
amended declarations and reports for Schedule 2 chemicals are moved
from Sec. 713.7 of the CWCR to Sec. 713.5 and amended by clarifying
and specifying deadlines for: (i) The types of changes to information
on Schedule 2 chemicals and activities in the Annual Declaration of
Past Activities or the combined declaration and report that would
require submission of an amended declaration to BIS; (ii) the types of
changes to export or import information in the Annual Reports on
Exports and Imports from undeclared facilities, trading companies and
U.S. persons that would require submission of an amended report to BIS;
and (iii) the types of changes to Schedule 2 chemical facility
information (e.g., change in company name, address, declaration point
of contact, ownership) that would require submission of an amended
declaration or report to BIS. This rule also moves Sec. 713.6(d) of
the CWCR to Sec. 713.5(d) and revises it to provide guidance
concerning the submission of inspection-related amendments. Amended
declarations, based on the final inspection report, must be submitted
to BIS within 45 calendar days of the date of BIS's post-inspection
letter.
This rule amends Sec. 713.6 of the CWCR to provide information
concerning the return of certain Schedule 2 declarations and reports
without action. BIS will RWA (Return Without Action) any Schedule 2
declarations or reports that are determined not to be required by the
CWCR. The returned declaration or report will be accompanied by a cover
letter explaining why the declaration or report is being returned
without action. BIS will retain a copy of the RWA letter, but will not
maintain copies of any declarations or reports that are returned
without action.
Finally, the provisions previously contained in Sec. 713.6 and
Table 1 to Sec. 713.6 of the CWCR, which provided information on the
deadlines for submitting Schedule 2 declarations, reports, and
amendments to BIS, are updated and moved to Sec. 713.7 and Supplement
No. 2 to part 713 of the CWCR, respectively.
H. Amendments to Part 714 of the CWCR (Activities Involving Schedule 3
Chemicals)
This rule amends Sec. 714.1 of the CWCR by removing the provisions
that addressed the past production of Schedule 3 chemicals. This
section now contains the annual declaration requirements for Schedule 3
chemicals that were previously described in Sec. 714.2 of the CWCR.
This section clarifies the scope of Schedule 3 production activities,
as defined by the CWCR, to include any associated processing steps of a
Schedule 3 chemical and intermediates. Only transient intermediates are
exempted. This ensures that the CWCR requirements apply to Schedule 3
chemical production where Schedule 3 chemicals are below the applicable
concentration threshold when reacted, but subsequently are concentrated
above the threshold during processing.
Section 714.1 of the CWCR is also amended to clarify the procedures
that must be followed when determining the range of Schedule 3 chemical
production for your plant site during the previous calendar year.
Specifically, this rule includes a statement in Sec. 714.1(c)(1) of
the CWCR to indicate that you should not aggregate amounts of
production from plants on your plant site that did not individually
produce a Schedule 3 chemical in an amount exceeding the applicable
declaration threshold (i.e., greater than 30 metric tons). In short,
only the production amounts from those plants on your plant site that
individually produced greater than 30 metric tons of a Schedule 3
chemical should be aggregated for the purpose of calculating the total
amount of a Schedule 3 chemical produced at your plant site during the
previous calendar year.
This rule also amends Sec. 714.2 of the CWCR by removing outdated
Schedule 3 initial declaration and reporting requirements and by
including the annual reporting requirements for exports and imports of
Schedule 3 chemicals that were previously described in Section 714.3 of
the CWCR. Section 714.3 of the CWCR is amended to include the advance
declaration requirements for additionally planned production of
Schedule 3 chemicals that were previously described in Sec. 714.4 of
the CWCR.
In addition, this rule amends Section 714.4 of the CWCR to include
the
[[Page 24922]]
requirements for amending Schedule 3 declarations and reports that were
previously described in Sec. 714.6 of the CWCR. This section is also
amended to clarify and specify the deadlines for: (i) The types of
changes to information on Schedule 3 chemicals and activities in the
Annual Declaration of Past Activities or the combined declaration and
report that would require submission of an amended declaration to BIS;
(ii) the types of changes to export or import information in the Annual
Reports on Exports and Imports from undeclared facilities, trading
companies and U.S. persons that would require submission of an amended
report to BIS; and (iii) the types of changes to Schedule 3 chemical
facility information (e.g., change in company name, address,
declaration point of contact, ownership) that would require submission
of an amended declaration or report to BIS. In addition, this rule
amends the CWCR to provide guidance in Sec. 714.4(d) concerning the
submission of inspection-related amendments. Amended declarations,
based on the final inspection report, must be submitted to BIS within
45 calendar days of the date of BIS's post-inspection letter.
This rule amends Sec. 714.5 of the CWCR to provide information
concerning the return of certain Schedule 3 declarations and reports
without action. BIS will RWA (Return Without Action) any Schedule 3
declarations or reports that are determined not to be required by the
CWCR. The returned declaration or report will be accompanied by a cover
letter explaining why the declaration or report is being returned
without action. BIS will retain a copy of the RWA letter, but will not
maintain copies of any declarations or reports that are returned
without action.
Finally, this rule amends Sec. 714.6 of the CWCR and adds a new
Supplement No. 2 to part 714 of the CWCR to provide updated information
on the deadlines for submitting Schedule 3 declarations, reports, and
amendments to BIS. Information on the deadlines for submitting Schedule
3 declarations and reports was previously provided in Sec. 714.5 and
Table 1 to Sec. 714.5 of the CWCR.
I. Amendments to Part 715 of the CWCR (Activities Involving Unscheduled
Discrete Organic Chemicals (UDOCs))
This rule amends Sec. 715.1(a)(1)(ii) (which describes the annual
declaration requirements for the production of UDOCs containing the
elements phosphorus, sulfur or fluorine, referred to as ``PSF
chemicals'') to clarify how to calculate the production by synthesis of
PSF chemicals at your plant site during the previous calendar year.
Specifically, this rule indicates that, when determining the quantity
of each PSF chemical produced by a PSF plant on your plant site, you
should only aggregate the PSF chemical production quantities from
plants that individually produced a PSF chemical in an amount exceeding
30 metric tons. However, note that Sec. 715.1(a)(1)(i) indicates that,
when determining UDOC production by synthesis on your plant site, you
should aggregate all quantities of UDOCs and PSF chemicals produced,
regardless of the amount of PSF chemicals produced (i.e., aggregate any
PSF chemicals produced).
This rule also revises Sec. 715.1(b)(1) of the CWCR by removing
the initial declaration requirement and replacing it with the annual
declaration requirement and adding a new subsection that provides for a
new form called the ``No Changes Authorization'' form. This form may be
submitted to BIS if there are no updates or changes to any information
(other than the certifying official and dates signed and submitted)
contained in the annual declaration on past activities previously
submitted by your plant site. Section Sec. 715.1(b)(2) of the CWCR
also indicates that, when you submit a ``No Changes Authorization''
form to BIS, your plant site's UDOC activities will continue to be
declared to the OPCW and your plant site will remain subject to
inspection (if applicable) based upon the data reported in your
previous (i.e., most recent) annual declaration on past activities.
This rule amends Sec. 715.2 of the CWCR to include requirements
for amending UDOC declarations--these requirements were previously
described in Sec. 715.3 of the CWCR. This section is also amended by
clarifying or specifying the deadlines for: (i) The types of changes to
information on UDOCs and activities in the Annual Declaration of Past
Activities that would require submission of an amended declaration to
BIS and (ii) the types of changes to UDOC plant information (e.g.,
change in company name, address, declaration point of contact,
ownership) that would require submission of an amended declaration to
BIS. In addition, this rule amends the CWCR to provide guidance in
Sec. 715.2(c) concerning the submission of inspection-related
amendments. Amended declarations, based on the final inspection report,
must be submitted to BIS within 45 calendar days of the receipt of
BIS's post-inspection letter.
This rule amends Sec. 715.3 of the CWCR to provide information
concerning the return of certain UDOC declarations without action. BIS
will RWA any UDOC declarations that are determined not to be required
by the CWCR. The returned declaration will be accompanied by a cover
letter explaining why the declaration is being returned without action.
BIS will retain a copy of the RWA letter, but will not maintain copies
of any declarations that are returned without action.
Finally, this rule amends part 715 of the CWCR by adding a new
Sec. 715.4 and a new Supplement No. 3 to part 715 to provide updated
information on the deadlines for submitting UDOC declarations and
amendments to BIS. Information on the deadlines for submitting UDOC
declarations was previously provided in Sec. 715.2 and Table 1 to
Sec. 715.2 of the CWCR.
J. Amendments to Part 716 of the CWCR (Initial and Routine Inspections
of Declared Facilities)
As part of their obligation under the Convention, each State Party
to the CWC is subject to inspection of its chemical facilities engaged
in certain activities involving scheduled chemicals. Part 716 of the
CWCR provides general information about the conduct of initial and
routine inspections of declared facilities subject to inspection under
CWC Verification Annex Part VI (E), Part VII (B), Part VIII(B), and
Part IX(B).
This rule amends Sec. 716.2(a)(2)(i) of the CWCR to clarify that a
facility agreement will be concluded by the U.S. National Authority (in
coordination with BIS) with the OPCW before a new Schedule 1 facility,
declared pursuant to Sec. 712.4 of the CWCR, can produce above
threshold.
This rule amends Sec. 716.4(b)(1) of the CWCR to clarify the scope
of inspections by specifying that inspections under part 716 of the
CWCR may include visual inspection of parts or areas of the plant site,
in addition to the facilities or plants producing scheduled chemicals,
in order to address any ambiguity that might arise during the
inspection. In addition, photographs may be taken and formal interviews
of facility personnel may be conducted. The Host Team Leader is
responsible, as described in Section 716.4(b)(2) of the CWCR, for
determining whether the Inspection Team's request to inspect any area,
building, item or record is reasonable--such determinations are made on
the basis of treaty requirements. Verification activities under the
CWCR are carried out at declared plant sites--access to other parts of
a plant site will be provided in a manner sufficient to
[[Page 24923]]
clarify for the Inspection Team any ambiguities that arise during an
inspection and in accordance with the facility agreement.
Section 716.4(b)(3) of the CWCR is amended to indicate that: (i)
Technology subject to the ITAR shall not be divulged to the Inspection
Team without U.S. Government authorization and (ii) each facility that
is inspected is responsible for identifying ITAR-controlled technology
to the BIS Host Team, if known. The extent to which ITAR controls the
transfer of technology to foreign nationals is not affected by the
CWCR--all inspection-related activities conducted under the CWCR must
comply with any applicable ITAR requirements.
This rule also clarifies the pre-inspection briefing requirements
described in Sec. 716.4(c) of the CWCR and the requirements in Sec.
716.4(e) of the CWCR concerning the availability of records. The U.S.
facility must provide the Inspection Team and the U.S. Government Host
Team with appropriate accommodations in which to review relevant
documents and must ensure that all relevant information will be
available to the teams. In addition, this rule provides that, whenever
the current owner of a declared facility does not have access to
records for activities that took place under a previous owner of the
facility, because such records were not transferred to the current
owner of the facility by the previous owner (e.g., as part of the
contract involving the sale of the facility), the previous owner must
make such records available to the Host Team (for provision to the
Inspection Team). However, the current owner of a facility, upon
receiving notification of an inspection, is responsible for informing
BIS if the previous owner did not transfer records for activities that
took place under the previous ownership--this will allow BIS to contact
the previous owner of the facility, to arrange for access to such
records, if BIS deems them relevant to the inspection activities.
Section 716.7 of the CWCR, which described requirements concerning
the provisions of samples by declared facilities, is revised to
restrict the analysis of such samples of the verification of the
absence of undeclared scheduled chemicals, unless otherwise agreed
after consultation with the facility representative.
In addition, this rule adds a new Sec. 716.10 to clarify that,
upon receipt of the final inspection report from the OPCW, BIS will
send a copy of the final inspection report to the facility for its
review. Facilities may submit comments on the final inspection report
to BIS, and BIS will consider those comments, to the extent possible,
when commenting on the final report. BIS will also send facilities a
post-inspection letter with instructions based on decisions made during
the inspection.
Finally, this rule removes and reserves Supplement Nos. 2 and 3 of
Part 716 of the CWCR, which included the model facility agreement for
Schedule 1 chemicals and Schedule 2 chemicals, respectively.
K. Amendments to Part 717 of the CWCR (CWC Clarification Procedures:
Consultations and Challenge Inspections)
Article IX of the CWC contains procedures for States Parties to
clarify issues concerning compliance with the CWC. A State Party may
request the OPCW to conduct an on-site challenge inspection of any
facility or location in the territory or in any other place under the
jurisdiction or control of any other State Party. A challenge
inspection may be conducted solely for the purpose of clarifying and
resolving any questions concerning possible non-compliance with the
CWC.
This rule amends Sec. 717.1(b) of the CWCR to clarify that BIS
will attempt to contact a person or facility that is subject to the
Article IX clarification procedures as early as practicable, prior to
issuing an official written request for clarification, and that such
person or facility must provide the information required by BIS,
pursuant to an Article IX clarification request, within five working
days of the receipt of BIS's written request for clarification.
In addition, this rule amends Sec. 717.2 (Challenge Inspections)
by adding a new provision in Sec. 717.2(b)(2)(ii) explaining that, if
consent is not granted within four hours of a facility's receipt of
BIS's inspection notification, BIS will assist the Department of
Justice in seeking a criminal warrant. Another new provision, i.e.,
Sec. 717.2(d)(5), is added to describe the requirements concerning
pre-inspection briefings for challenge inspections. Section 717.2(d)(5)
requires that, prior to the commencement of the challenge inspection,
facility representatives must provide the Inspection Team and Host Team
with a pre-inspection briefing on the facility that will include the
following: (i) The types of activities being conducted at the facility
(e.g., business and manufacturing operations); (ii) safety procedures
that must be followed during the inspection; and (iii) administrative
and logistical arrangements necessary to facilitate the inspection.
Section 717.3 of the CWCR, which describes requirements concerning
the provision of samples by declared facilities, is revised to restrict
analysis of samples to verifying the presence or absence of scheduled
chemicals or appropriate degradation products, unless agreed otherwise.
Finally, this rule adds a new Sec. 717.5 to clarify that, upon
receipt of the final inspection report from the OPCW, BIS will forward
a copy to the facility, for comment, and will give consideration to the
facility's comments prior to responding to the OPCW via the U.S.
National Authority. In addition, Section 717.5 provides that, upon
receipt of the final inspection report, BIS will send the facility a
post-inspection letter detailing the issues that require follow-up
action.
L. Amendments to Part 719 of the CWCR (Enforcement)
This rule amends part 719 of the CWCR to clarify that the scope of
violations under the Chemical Weapons Convention Implementation Act
(the Act) includes willfully failing or refusing to permit access to or
copying of ``any record'' required to be established or maintained by
the Act or the CWCR--not just those records exempt from disclosure
under the Act or the CWCR, as previously stated in section
719.2(a)(2)(iii) of the CWCR. In addition, this rule amends the civil
and criminal penalty provisions in sections 719.2(b)(2) and 719.2(c),
respectively, to make the same clarification, with respect to the
penalties that may be assessed for violations of the recordkeeping
requirements in the Act or the CWCR.
M. Amendments to Part 721 of the CWCR (Inspection of Records and
Recordkeeping)
This rule amends part 721 of the CWCR to clarify the circumstances
under which the previous owner of a declared facility must retain
supporting materials and documentation in accordance with the
requirements of section 721.2. Specifically, section 721.2(a) is
amended to clarify that, if a declared facility is sold, the previous
owner of the facility must retain all supporting materials and
documentation that were not transferred to the current owner of the
facility (e.g., as part of the contract involving the sale of the
facility); otherwise, the current owner of the facility is responsible
for retaining such supporting materials and documentation. Whenever the
previous owner of a declared facility retains such supporting materials
and documentation, the owner must inform
[[Page 24924]]
BIS of any subsequent change in address or other contact information,
so that BIS will be able to contact the previous owner of the facility,
to arrange for access to such records, if BIS deems them relevant to
inspection activities involving the facility.
II. Summary of Public Comments on the December 7, 2004, Proposed CWCR
Rule
On December 7, 2004, BIS published a rule in the Federal Register
(69 FR 70754), with a request for comments, that proposed amendments to
the CWCR to update the CWCR (by adding new requirements identified
since the implementation of the CWC) and clarify certain other CWC
requirements. BIS received comments from five respondents. Following is
a summary of those comments, along with BIS's responses. The comments
are organized by regulatory section, with similar comments grouped
under the same section heading.
A. Section 710.1 ``Definitions of Terms Used in the Chemical Weapons
Convention Regulations (CWCR)''
Comments: One respondent questioned the definition of ``production
by synthesis'' set forth in the regulation. The respondent stated that,
``Production by synthesis means production of a chemical that is
isolated for use or sale.'' The respondent further stated that,
``'synthesis'' chemically means production of a chemical from its
reactants. (See Wikipedia, ``Chemical Synthesis,'' http://en.wikipedia.org/wiki/Chemical_synthesis
). It is distinguished by
production of a saleable product by another means, such as processing
or biological mediation.'' The respondent suggested that, perhaps, BIS
omitted a definition or inappropriately transposed the order of the
definitions of ``production'' and ``production by synthesis.'' The
respondent stated that the definition of synthesis, in any case, has a
``very specific connotation under the CWC; e.g., UDOCs have to be
`produced by synthesis' (Verification Annex, Part IX, A.1.(b))'' and
that this ``connotation'' is not reflected in the revised regulation.
Response: The definition of ``production by synthesis'' has been
revised in this final rule to mean ``production of a chemical from its
reactants.'' This definition is consistent with language used in the
interim CWCR, which has been applied since the CWC entered into force
in the United States and has been deemed consistent with CWC
requirements through application and practice. Note that Section
715.1(a)(2) of the CWCR establishes criteria for UDOCs produced by
synthesis that have been isolated for use or sale as a specific end
product.
B. Section 711.3 ``Compliance Review''
Comments: Two respondents noted that they believe BIS already had
the authority to conduct compliance reviews under the CWCR. They
acknowledged the need for the compliance review element, but suggested
that BIS provide companies 30 days to respond to requests for
information under new Section 711.3 of the CWCR.
Response: BIS's objective has been, and will continue to be, to
minimize the burden of companies to comply with the CWCR, while at the
same time ensuring that individual companies and the United States
comply with the terms of the CWC and the CWC Implementation Act. In
response to comments received, BIS has revised the regulation to state
that, if BIS makes a request pursuant to new Section 711.3 of the CWCR,
BIS will provide companies 30 days to respond to such request.
Comments: One respondent stated that those companies, which have
some sites that are subject to declaration requirements under the CWCR
and other sites that are not, should not be required to keep records
that substantiate activities at an undeclared site for purposes of
compliance.
Response: Section 711.3 of the CWCR does not require companies to
maintain records other than those they would normally maintain,
pursuant to regular business practices or pursuant to applicable CWCR
requirements.
C. Section 714.4(a) ``Changes to Information That Directly Affects a
Declared [Schedule 3] Plant Site's Annual Declaration of Past
Activities or Combined Annual Declaration or Report Which Was
Previously Submitted to BIS''
Comments: One respondent requested that BIS clarify the
circumstances under which the proposed requirement in Section 714.4(a)
would apply to changes in the ``purpose'' of Schedule 3 chemical
production. Section 714.4(a) of the proposed rule stated that an
amended declaration or report must be submitted to BIS within 15 days
of a change in the ``types'' of Schedule 3 chemicals produced, the
``production range'' for these chemicals (as specified in the CWCR),
the ``purpose'' of such production, and the addition of ``new plants''
for Schedule 3 chemical production. The respondent stated that
information on the ``purpose'' of production appeared to be ancillary
to and only needed under the remote circumstance that a plant site
becomes aware of: (1) ``additional plants'' on the plant site producing
a Schedule 3 chemical or (2) the production of an ``additional
chemical'' at a plant already reporting under the plant site. The
respondent requested that BIS provide clarification, by way of
examples, of the circumstances under which changes to the ``purpose''
of Schedule 3 production would require submission of an amended
declaration to BIS.
Response: Section 714.4(a) of the proposed rule required that an
amendment be submitted to BIS within 15 days of any change in: (1) The
types of Schedule 3 chemicals produced, (2) the production range of
Schedule 3 chemicals (as specified in the CWCR), (3) the purpose of
Schedule 3 chemical production, and (4) the addition of new plant(s)
for producing Schedule 3 chemicals. To eliminate any uncertainty
concerning whether or not a change in a single type of information
identified in Section 714.4(a) (e.g., the ``purpose'' of Schedule 3
chemical production) would require submission of an amendment, BIS
clarified the language in Section 714.4(a) of the proposed rule by
revising the phrase, ``You must submit an amended declaration or report
to BIS within 15 days of any change in the following information * *
*,'' in the introductory text of paragraph (a), to read, ``You must
submit an amended declaration or report to BIS within 15 days of
determining that there has been a change in any of the following
information that you have previously declared or reported * * *''. BIS
also clarified that section by replacing the word ``and,'' at the end
of paragraph (a)(3), with the word ``or.'' These changes to Section
714.4(a) clearly indicate that a change in any one of the four types of
information listed therein would require the submission of an amendment
to BIS within 15 days from the date that a company determines such a
change has occurred. For example, if a plant site declares consumption
(``In-line consumption as produced (captive use)'') of a Schedule 3
chemical as the only ``purpose'' of production in its declaration on
past activities, but later learns that the chemical was also sold to
another company in the United States, the plant site must submit an
amendment to its declaration, declaring the additional end-use (i.e.,
transfer to another company or industry), within 15 days of having
determined that the chemical was transferred, as well as consumed.
Note: In contrast to the amendment requirements in Section
714.4(a) of the CWCR, Section 714.3(a)(2) states that a
``Declaration on Additionally Planned Activities'' is not required
to change
[[Page 24925]]
anticipated end-use(s) of a chemical (i.e., purposes of production),
unless there are other anticipated changes that must be declared, as
specified in Section 714.3(a)(1)(i) through (a)(1)(iv) of the CWCR
(e.g., the addition of a previously undeclared plant or chemical).
D. Sections 713.5(b)(5) and 714.4(b) ``Changes to Export or Import
Information Submitted in Annual Reports on Exports and Imports From
Undeclared Plant Sites, Trading Companies and U.S. Persons''
Comments: Two respondents commented on the proposed end-use
information requirements in Sections 713.5(b)(5) and 714.4(b)(5) of the
CWCR, as they apply to changes to Schedule 2 and Schedule 3 annual
reports previously submitted to BIS. One respondent noted that the CWCR
do not require that information on end-use be included in an Annual
Report of Exports or Imports. Both respondents asked BIS to indicate
whether the end-use information requirements in Sections 713.5(b)(5)
and 714.4(b)(5) of the CWCR were added to these sections in error or,
if they were added intentionally, to clarify the purpose of the
requirements.
Response: BIS has determined that the requirement to submit end-use
information was inadvertently included in sections 714.4 and 713.5 of
the CWCR and has removed the requirement from both of these sections.
E. Section 716.3(a) ``Consent to Inspections; Warrants for
Inspections''
Comments: One respondent stated that the regulations should provide
companies with the option of giving ``advance consent'' to routine and
challenge inspections, as set forth in sections 716 and 717 of the
CWCR, respectively. The respondent stated that such advance consent
would become effective upon issuance by the U.S. National Authority
(USNA) of a written notification of inspection, as specified in Section
716.5(a)(2) of the CWCR. The respondent suggested that this option
should allow the owner to choose whether to have the advance consent
expire at the end of a specified period of time or to have no
expiration date. To implement this option, the respondent suggested
that BIS could include an ``advance consent'' provision in the annual
declaration form that would allow the individual completing the form to
check the appropriate boxes to indicate whether or not ``advance
consent'' is given and, if so, whether that consent will expire at a
specified time or have no expiration date. Alternatively, the
respondent suggests that ``advance consent'' could be indicated by
submission of a letter from the owner to BIS that would provide
``advance consent.'' The respondent stated that this mode of consent
would not diminish any rights under the rule to withdraw consent at any
time.
Response: Section 305(a) of the Chemical Weapons Convention
Implementation Act (CWCIA) requires the United States Government to
``seek the consent of the owner or the owner, operator, occupant, or
agent in charge of the premises to be inspected prior to any inspection
* * *'' (See 22 U.S.C. 6701, 6725, Pub. L. 105-277, Section 305(a)).
BIS has made a conservative interpretation of this requirement and
therefore seeks actual consent from the authorized owner, operator or
agent in charge, after notification, prior to every inspection. We have
adopted this interpretation to ensure that the rights bestowed on the
public by the CWCIA are fully addressed. Accordingly, BIS will not
adopt a method for the submission of advance consent to inspections.
F. Section 716.4(b)(1) ``Description of Inspections''
Comments: One respondent stated that the use of the word ``may,''
in the context of the areas that can be included in a visual
inspection, creates uncertainty with regard to those areas of a
facility that are subject to inspection and those that are not. The
respondent stated that visual inspection of areas outside the declared
plant site should be required only if there are no other means of
clarifying an ambiguity. The respondent asserted that BIS should
provide clarification in Section 716 of the CWCR, or at least in the
preamble to the final rule, concerning which areas of the declared
plant and plant site will be subject to visual inspection and which
areas may be subject to visual inspection. The respondent also
suggested that BIS should provide a more detailed explanation in
Section 716 about managed access and other protections that may apply
to inspections.
Response: BIS cannot provide a list of areas that will be or may be
subject to visual inspection because each inspection is conducted
differently within the limits of the CWC and the Act. As the
representative of the United States (Inspected State Party), the Host
Team Leader is responsible, as described in section 716.4(b)(2), for
determining whether the Inspection Team's request to inspect any area,
building, item or record is reasonable. Such determinations are made by
the Host Team Leader on the basis of treaty requirements. Verification
activities are carried out at declared ``plant sites.'' The CWC states
that the focus of inspections shall be the declared plant (see CWC Part
VII paragraph 25, Part VIII paragraph 20, and Part IX paragraph 17 for
Schedule 2, Schedule 3 and UDOC inspections, respectively). These
activities are further described in the CWCR. Access to other parts of
a plant site are provided in a manner sufficient to clarify, to the
satisfaction of the Inspection Team, any ambiguities that arise during
an inspection. Managed access is a means through which access to other
parts of a plant site is controlled, and it cannot be narrowly defined.
G. Section 716.4(b)(2) ``Scope of Consent''
Comments: One respondent stated that there is no mention of the
facility's role in determining whether or not an Inspection Team's
request for access is reasonable. The respondent stated that input from
the inspected facility is crucial to any determination made by the Host
Team with regard to access and other inspection activities. The
respondent, therefore, suggested that Section 716.4(b)(2) should be
revised to read as follows:
``The Host Team Leader will make the determination of whether
the Inspection Team's request to inspect any area, building, item or
record is reasonable after consultation with the owner, operator,
occupant or agent in charge of a facility.''
Response: The Host Team Leader, as the representative of the United
States during an inspection, has the sole responsibility for
determining whether a request made by the Inspection Team is reasonable
and necessary. The inspection being conducted at the facility is a U.S.
Government-led inspection and therefore any interaction with the
Inspection Team or decisions made regarding the conduct of the
inspection are wholly within the province and authority of the U.S.
Government. As a courtesy, BIS has made it a practice to consult with
the facility prior to making these decisions. However, there is no
obligation on the part of the U.S. Government to follow the instruction
of, or await comment from, the facility when considering an Inspection
Team request. Therefore, BIS will not revise section 716.4 to reflect
the respondent's requested language.
H. Section 716.4(b)(3) ``ITAR Controlled Technology''
Comments: One respondent stated that, in order to maximize the
protection of technology controlled for export under the International
Traffic in Arms
[[Page 24926]]
Regulations (ITAR) (22 CFR 120-130), the first sentence of this section
should be revised to read as follows:
``ITAR-controlled technology cannot be divulged to the
Inspection Team without U.S. Government (USG) authorization
regardless of the nationalities of the Inspection Team members.''
Response: A key role for BIS, during CWC inspections of facilities,
is to ensure that these inspections are conducted in a manner that does
not adversely impact facility compliance with the requirements of the
International Traffic in Arms Regulations (ITAR), which are
administered by the U.S. Department of State. The terms under which
members of the Inspection Team may have access to ITAR-controlled
technology and information are subject to the provisions of those
regulations and the instructions given to the Department of Commerce by
the Department of State. The language proposed by the respondent would
materially affect the implementation of those ITAR provisions and,
therefore, will not be incorporated into the CWCR.
Comments: Another respondent stated that the procedures through
which the U.S. Government authorizes the release of ITAR technology
during CWC inspections are unclear. The respondent requested that BIS
clarify the procedures (if any) for authorizing the release of such
technology.
Response: The CWCR do not alter the ITAR provisions or procedures
(22 CFR 120-130) as they apply to the transfer of technology to foreign
nationals. Procedurally, if there is no approval from the U.S.
Department of State or its duly designated U.S. Government
representative for disclosure of ITAR technology during an inspection,
such technology cannot be disclosed.
I. Section 716.4(e) ``Records Review''
Comments: Two respondents commented on the requirement in Section
716.4(e) of the CWCR that, whenever the current owner of a declared
facility does not have access to records for activities that took place
under a previous owner of the facility, the previous owner must make
such records available to the Host Team, for provision to the
Inspection Team. One of the respondents said that, if contractually,
records were transferred to the new owners of a facility subject to the
CWCR, the previous owners should not be obligated to maintain
duplicates of those records. Both respondents stated that this section
of the CWCR appeared to impose an indefinite recordkeeping obligation
upon former owners of declared facilities who were no longer subject to
the CWCR and suggested that BIS should amend this section of the CWCR
to clarify that, under any circumstances where the previous owner is
obligated to maintain records, the five-year retention period described
in Section 721.2(b) of the CWCR would apply.
Response: Section 716.4(e) of the CWCR does not obligate the
previous owner of a declared facility to maintain duplicates of records
that were contractually transferred to the new owner of the facility.
The company that legally owns the records after the sale is responsible
for retaining the records and making them available for inspection.
Accordingly, there is no duplication of recordkeeping. Section 721.2(b)
establishes a five year retention period for all supporting materials
and documentation related to compliance with the CWCR, so there are no
open-ended record keeping obligations under the CWCR. However, in order
to clarify the recordkeeping requirements that apply to previous owners
of declared facilities, BIS is amending Section 716.4(e) to expressly
indicate that, ``if a facility does not have access to records for
activities that took place under previous ownership, because such
records were not transferred to the current owner of the facility by
the previous owner (e.g., as part of the contract involving the sale of
the facility), the previous owner must make such records available to
the Host Team for provision to the Inspection Team * * *.'' The current
owner of a facility, upon receiving notification of an inspection,
would be responsible for informing BIS if the previous owner did not
transfer records for activities that took place under the previous
ownership--this will allow BIS to contact the previous owner of the
facility, to arrange for access to such records, if BIS deems them
relevant to the inspection activities. BIS is also amending Section
721.2(a) of the CWCR, consistent with the clarifications to Section
716.4, to specify that ``in the event that a declared facility is sold,
the previous owner of the facility must retain all * * * supporting
materials and documentation that were not transferred to the current
owner of the facility (e.g., as part of the contract involving the sale
of the facility)--otherwise, the current owner of the facility is
responsible for retaining such supporting materials and
documentation.'' In addition, if the previous owner of a declared
facility decides to retain such supporting materials and documentation,
the owner must inform BIS of any subsequent change in address or other
contact information, so that BIS will be able to contact the previous
owner, to arrange for access to the records, in the event that BIS
deems them relevant to inspection activities involving the facility.
J. Section 716.10 ``Post-Inspection Activities''
Comments: Two respondents stated that the CWCR do not provide a
time frame for the submission of a facility's comments on a final
inspection report from the OPCW. The respondents suggested that BIS
establish a time frame that coincides with the deadline for the
submission of inspection-related amendments (45 calendar days).
Response: The respondents were correct in noting that the CWCR do
not establish a specific deadline for an inspected facility to submit
comments on a final inspection report. The CWC requires that State
Parties submit comments on a final inspection report, to the Director-
General of the Technical Secretariat of the OPCW, not later than 30
days following the completion of an inspection. As a courtesy, BIS has
provided companies with the opportunity to review and comment on the
inspection report, but is under no obligation to await or incorporate
such comments in the final submission to the OPCW. However, BIS notes
the utility of a deadline for the submission of comments by facilities
on the final inspection report. Therefore, BIS has amended the CWCR to
allow inspected facilities a minimum of 7 working days, from the time
they receive a copy of the final inspection report, to submit their
comments on the report.
K. Part 717 ``Challenge inspections''
Comments: The same respondent, who commented on adding a provision
that would allow companies to supply advance consent for routine
inspections (see comments on Section 716.3(a), above), suggested that
BIS should also provide for advance consent to challenge inspections.
Response: For the reasons stated in its response to the
respondent's comments on Section 716.3(a) of the CWCR, BIS will not
amend the CWCR to provide for the submission of advance consent to
challenge inspections. (For further discussion of the basis for this
decision, see the BIS response to the comments received for Section
716.3(a), above.)
[[Page 24927]]
L. Section 717.2(a) and (b) ``Warrants'' and ``Notification of
Challenge Inspection''
Comments: One respondent stated that the challenge inspection
procedures in Part 717 of the proposed CWCR do not contain provisions
analogous to the initial/routine inspection procedures in either
Section 716.3(a), which states that the owner, operator, or agent in
charge of a facility may consent to an inspection, or Section
716.5(a)(1)(ii), which provides that BIS's inspection notification will
include a request that the facility indicate whether it will consent to
an inspection. The respondent noted that, while obtaining the consent
of the owner, operator, or agent in charge of a facility to an
inspection is not expressly stated in Part 717, it is implied because
Section 717.2(a) of the proposed rule indicates that failure to provide
consent will result in the issuance of a criminal warrant. The
respondent felt that part 717 of the proposed rule creates ambiguity
and uncertainty, because it does not expressly indicate whether or how
BIS would request a facility's consent to an inspection, and suggested
that the following sentences be added to Sections 717.2(a) and
717.2(b)(2)(ii):
Section 717.2(a)--``The owner, operator, occupant or agent in
charge of a facility may consent to a challenge inspection. The
individual giving consent on behalf of the facility represents that
he or she has the authority to make this decision for the
facility.''
Section 717.2(b)(2)(ii)--``In addition to appropriate
information provided by the OPCW in its notification to the USNA,
BIS's inspection notification to the facility will request that the
facility indicate whether it will consent to an inspection and will
state whether an advance team is available to assist the site in
preparation for the inspection.''
Response: BIS has amended Sections 717.2(a) and 717.2(b)(2)(ii) of
the CWCR to expressly indicate that BIS will request the owner,
operator, or agent in charge of a facility to provide consent prior to
a challenge inspection of the facility.
M. Typographical Errors
Comment: One respondent indicated that there were two typographical
errors in the Supplementary Information part of the CWCR proposed rule,
under Part I (``Summary of CWCR Changes Contained in This Proposed
Rule''), section (G), titled ``Proposed Amendments to Part 713 of the
CWCR (Activities Involving Schedule 2 Chemicals).'' The respondent
stated that BIS should add an ``s'' to the word ``prohibit,'' in the
second sentence of the first paragraph under section (G), and delete
the word ``not'' from the phrase ``not packaged for retail sale for
personal use,'' in the last sentence of the second paragraph under
section (G).
Response: The word ``prohibit,'' in the second sentence of the
first paragraph in section (G), is intended to modify ``Chemical
Weapons Convention Regulations.'' Because the word ``regulations'' is
plural, the use of the word ``prohibit'' is appropriate in this
sentence. BIS has amended the last sentence of the second paragraph in
section (G) by removing the word ``not'' from the phrase ``not packaged
for retail sale for personal use.''
Rulemaking Requirements
1. This final rule has been determined to be significant for
purposes of E.O. 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless
that collection of information displays a currently valid Office of
Management and Budget (OMB) Control Number. This rule revises an
existing collection of information subject to the requirements of the
PRA. This collection has been approved by OMB under Control Number
0694-0091 (Chemical Weapons Convention--Declaration and Report Forms),
which carries burden hour estimates of 10.6 hours for Schedule 1
Chemicals, 11.9 hours for Schedule 2 chemicals, 2.5 hours for Schedule
3 chemicals, 5.3/5.1 for unscheduled discrete organic chemicals, and
0.17 hours for Schedule 1 notifications. This rule adds a new Section
711.3 to the Chemical Weapons Convention Regulations (CWCR) that
authorizes BIS to contact any facility to request information
concerning production, processing, consumption, export, import, or
other activities involving scheduled chemicals and UDOCs, described in
Parts 712 through 715 of the CWCR, in order to determine whether or not
the facility is in compliance with the CWCR. This new requirement
applies to all persons and facilities that are subject to the reporting
or declaration provisions of the CWCR, as set forth in Part 721. The
total estimated annual burden hours for the compliance reviews
authorized under new Section 711.3 would be 85 hours and the total
estimated annual cost would be $3,236.46. This rule also adds a new
requirement for the submission of amendments (to previously submitted
declarations and reports) resulting from inspection findings. The total
estimated annual burden hours for this new amendment requirement would
be 112 hours and the total estimated annual cost would be $4,267. Note
that the estimated burden hours and cost for inspection related
amendments are already included in the information collection
authorization from OMB. Therefore, to avoid double counting the
information, it does not appear as a separate line item under the
revision to the information collection for this final rule. Finally,
this rule adds a new reporting form, entitled ``No Changes
Authorization Form,'' for UDOC facilities to use, if appropriate, for
certifying that there are no changes to the information declared in a
UDOC facility's prior year's annual declaration on past activities.
This new form will reduce industry's estimated annual burden by 15
hours and $571.50. Note that, like the information related to
inspection-related amendments, the estimated burden hours and cost for
implementing the ``No Changes Authorization Form'' are included in a
prior information collection authorization from OMB. In conclusion, the
total estimated annual burden hours for declarations, reports,
amendments, and requests for compliance-related information under this
final rule will increase from 4401 burden hours to 4471 burden hours.
The changes made by this rule are addressed under two separate
information collection submissions.
Comments are invited on: (i) Whether the collection of information
is necessary for the functions of the agency, including whether the
information shall have practical utility; (ii) the accuracy of the
agency's estimate of the information collection burden; (iii) ways to
enhance the quality, utility, and clarity of the information to be
collected; and (iv) ways to minimize the burden of the collection on
respondents, including through the use of automated collection
techniques or other forms of information technology.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing the
burden, to David Rostker, Office of Management and Budget (OMB), by e-
mail to David_Rostker@omb.eop.gov, or by fax to (202) 395-7285; and to
the Regulatory Policy Division, Bureau of Industry and Security,
Department of Commerce, P.O. Box 273, Washington, DC 20044.
3. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
[[Page 24928]]
4. The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to the notice and comment
rulemaking requirements under the Administrative Procedure Act (5
U.S.C. 553) or any other statute, unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Under section 605(b) of the RFA, however, if
the head of an agency certifies that a rule will not have a significant
economic impact on a substantial number of small entities, the statute
does not require the agency to prepare a regulatory flexibility
analysis. Pursuant to section 605(b), the Chief Counsel for
Regulations, Department of Commerce, certified to the Chief Counsel for
Advocacy, Small Business Administration, that the promulgation of this
final rule will not have a significant economic impact on a substantial
number of small entities for the reasons explained below. Consequently,
BIS has not prepared a regulatory flexibility analysis.
Small entities include small businesses, small organizations and
small governmental jurisdictions. For purposes of assessing the impacts
of this final rule on small entities, small entity is defined as: (1) A
small business according to RFA default definitions for small business
(based on SBA size standards), (2) a small governmental jurisdiction
that is a government of a city, county, town, school district or
special district with a population of less than 50,000, and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field. BIS
has determined that this final rule would affect only the first
category of small entities (i.e., small businesses). The President
reported to the Congress, in December 2003, as required under section
309 of the CWC Implementation Act, that 297 U.S. companies representing
691 facilities, plant sites, and trading companies were subject to the
declaration and reporting requirements under the Chemical Weapons
Convention Regulations (CWCR). Although BIS estimates that the majority
of these 297 companies are substantially sized businesses, having more
than 500 employees, BIS does not have sufficient information on these
companies to definitively characterize them as large entities. The
Small Business Administration (SBA) has established standards for what
constitutes a small business, with respect to each of the Standard
Industrial Classification (SIC) code categories for ``Chemicals and
Allied Products.'' However, BIS is not able to determine which of these
SIC code categories apply to the companies that are subject to the
declaration, reporting, advance notification, recordkeeping or
inspection requirements of this rule. Therefore, for the purpose of
assessing the impact of this final rule, BIS assumes that the 297
companies are small entities.
Although this final rule will affect a substantial number of small
entities (i.e., 297 companies), the additional recordkeeping and
reporting requirements imposed by this rule will not have a significant
economic impact on these entities.
First, this rule adds a new section 711.3 that authorizes BIS to
contact any facility to determine whether or not it is in compliance
with the CWCR. The information that BIS is authorized to request
concerns production, processing, consumption, export, import, or other
activities involving scheduled chemicals and UDOCs described in parts
712 through 715 of the CWCR. This new requirement applies to all
persons and facilities subject to the reporting or declaration
provisions of the CWCR, as set forth in part 721. The total estimated
annual burden hours for the compliance reviews authorized under new
section 711.3 would be 85 hours and the total estimated annual cost
would be $3,236.46.
Second, this rule adds a new requirement for the submission of
amendments (to previously submitted declarations and reports) resulting
from inspection findings. The total estimated annual burden hours for
the new amendment requirement would be 112 hours and the total
estimated annual cost would be $4,267.
Finally, this rule adds a new reporting form, entitled ``No Changes
Authorization Form,'' for UDOC facilities to use, if appropriate, for
certifying that there are no changes to the information declared in a
UDOC facility's prior year's annual declaration on past activities.
This new form will reduce industry's estimated annual burden by 15
hours and $571.50.
The total estimated increase in annual burden hours to implement
the additional recordkeeping and reporting requirements described above
would be 197 burden hours and the total estimated annual cost would be
$7,503.46. The total cost of these recordkeeping and reporting
requirements would represent only a small percentage of the revenues
generated by the affected companies. Although this final rule will
affect a substantial number of small entities (i.e., 297 companies),
the total economic impact on the affected entities (i.e., $7,503.46)
will not be significant. Since the revisions that this rule makes to
the CWCR will not impose a significant economic impact on a substantial
number of small entities, BIS did not prepare a regulatory flexibility
analysis for this rule.
Finally, the changes made by this rule should be viewed in light of
the fact that BIS's discretion in formulating the declaration,
reporting and advance notification, and recordkeeping requirements of
the CWCR is limited by the Chemical Weapons Convention (the
Convention). The Organization for the Prohibition of Chemical Weapons
(OPCW) has issued forms for States Parties to use for declarations. In
drafting the CWCR requirements and the forms for U.S. persons to use,
BIS has consistently interpreted the Convention's requirements as
narrowly as possible to ensure that only information that the United
States National Authority must declare to the OPCW is to be submitted
to BIS. Other States Parties, such as Canada, have imposed much broader
reporting requirements on their industries, with the government taking
on the responsibility of determining which of the information collected
must be declared to the OPCW. In addition, certain declaration
requirements of the Convention are subject to interpretation by States
Parties. Until the Conference of States Parties establishes clear rules
for these requirements, States Parties may use their ``national
discretion'' to implement them. ``National discretion'' generally means
a reasonable interpretation of the requirement. For requirements
currently subject to ``national discretion,'' BIS has adopted in this
rule the minimum requirements consistent with a reasonable reading of
the Convention, keeping in mind its purposes and objectives.
List of Subjects
15 CFR Part 710
Chemicals, Exports, Foreign Trade, Imports, Treaties.
15 CFR Part 711
Chemicals, Confidential business information, Reporting and
recordkeeping requirements.
[[Page 24929]]
15 CFR Part 712
Chemicals, Exports, Foreign Trade, Imports, Reporting and
recordkeeping requirements.
15 CFR Part 713
Chemicals, Exports, Foreign Trade, Imports, Reporting and
recordkeeping requirements.
15 CFR Part 714
Chemicals, Exports, Foreign Trade, Imports, Reporting and
recordkeeping requirements.
15 CFR Part 715
Chemicals, Exports, Foreign Trade, Imports, Reporting and
recordkeeping requirements.
15 CFR Part 716
Chemicals, Confidential business information, Reporting and
recordkeeping requirements, Search warrant, Treaties.
15 CFR Part 717
Chemicals, Confidential business information, Reporting and
recordkeeping requirements, Search warrant, Treaties.
15 CFR Part 718
Confidential business information, Reporting and recordkeeping
requirements.
15 CFR Part 719
Administrative proceedings, Exports, Imports, Penalties,
Violations.
15 CFR Part 720
Penalties, violations.
15 CFR Part 721
Reporting and recordkeeping requirements.
0
Accordingly, the Chemical Weapons Convention Regulations, 15 CFR,
chapter VII, subchapter B, parts 710 through 722, are revised 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, the
International Traffic in Arms Regulations, and the Alcohol, Tobacco,
Firearms, and Explosives Regulations.
Supplement No. 1 to Part 710--States Parties to the Convention on
the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on Their Destruction
Supplement No. 2 to Part 710--Definitions of Production
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
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 729 of this subchapter, unless otherwise noted):
Act (The). Means the Chemical Weapons Convention Implementation Act
of 1998 (22 U.S.C. 6701 et seq.).
Advance Notification. Means a notice informing BIS of a company's
intention to export to or import from a State Party a Schedule 1
chemical. This advance notification must be submitted to BIS at least
45 days prior to the date of export or import (except for transfers of
5 milligrams or less of saxitoxin for medical/diagnostic purposes,
which must be submitted to BIS at least 3 days prior to export or
import). BIS will inform the company in writing of the earliest date
the shipment may occur under the advance notification procedure. This
advance notification requirement is imposed in addition to any export
license requirements under the Department of Commerce's Export
Administration Regulations (15 CFR parts 730 through 799) or the
Department of State's International Traffic in Arms Regulations (22 CFR
parts 120 through 130) or any import license requirements under the
Department of Justice's Bureau of Alcohol, Tobacco, Firearms and
Explosives Regulations (27 CFR part 447).
Bureau of Industry and Security (BIS). Means the Bureau of Industry
and Security of the United States Department of Commerce, including
Export Administration and Export Enforcement.
By-product. Means any chemical substance or mixture produced
without a separate commercial intent during the manufacture,
processing, use or disposal of another chemical substance or mixture.
Chemical Weapon. Means the following, together or separately:
(1) Toxic chemicals and their precursors, except where intended for
purposes not prohibited under the Chemical Weapons Convention (CWC),
provided that the type and quantity are consistent with such purposes;
(2) Munitions and devices, specifically designed to cause death or
other harm through the toxic properties of those toxic chemicals
specified in paragraph (1) of this definition, which would be released
as a result of the employment of such munitions and devices;
(3) Any equipment specifically designed for use directly in
connection with the employment of munitions or devices specified in
paragraph (2) of this definition.
Chemical Weapons Convention (CWC or Convention). Means the
Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their Destruction, and
its annexes opened for signature on January 13, 1993.
Chemical Weapons Convention Regulations (CWCR). Means the
regulations contained in 15 CFR parts 710 through 729.
Consumption. Consumption of a chemical means its conversion into
another chemical via a chemical reaction. Unreacted material must be
accounted for as either waste or as recycled starting material.
Declaration or report form. Means a multi-purpose form to be
submitted to BIS regarding activities involving Schedule 1, Schedule 2,
Schedule 3, or unscheduled discrete organic chemicals. Declaration
forms will be used by facilities that have data declaration obligations
under the CWCR and are ``declared'' facilities whose facility-specific
information will be transmitted to the OPCW. Report forms will be used
by entities that are ``undeclared'' facilities or trading companies
that have limited reporting requirements for only export and import
activities under the CWCR and whose facility-specific information will
not be transmitted to the OPCW. Information from declared facilities,
undeclared facilities and trading companies will also be used to
compile U.S. national aggregate figures on the production, processing,
consumption, export and import of specific chemicals. See also related
definitions of declared facility, undeclared facility and report.
Declared facility or plant site. Means a facility or plant site
that submits declarations of activities involving Schedule 1, Schedule
2, Schedule 3, or unscheduled discrete organic chemicals above
specified threshold quantities.
Discrete organic chemical. Means any chemical belonging to the
class of chemical compounds consisting of all compounds of carbon,
except for its
[[Page 24930]]
oxides, sulfides, and metal carbonates, identifiable by chemical name,
by structural formula, if known, and by Chemical Abstract Service
registry number, if assigned. (Also see the definition for unscheduled
discrete organic chemical.)
Domestic transfer. Means, with regard to declaration requirements
for Schedule 1 chemicals under the CWCR, any movement of any amount of
a Schedule 1 chemical outside the geographical boundary of a facility
in the United States to another destination in the United States, for
any purpose. Also means, with regard to declaration requirements for
Schedule 2 and Schedule 3 chemicals under the CWCR, movement of a
Schedule 2 or Schedule 3 chemical in quantities and concentrations
greater than specified thresholds, outside the geographical boundary of
a facility in the United States, to another destination in the United
States, for any purpose. Domestic transfer includes movement between
two divisions of one company or a sale from one company to another.
Note that any movement to or from a facility outside the United States
is considered an export or import for reporting purposes, not a
domestic transfer. (Also see definition of United States.)
EAR. Means the Export Administration Regulations (15 CFR parts 730-
799).
Explosive. Means a chemical (or a mixture of chemicals) that is
included in Class 1 of the United Nations Organization hazard
classification system.
Facility. Means any plant site, plant or unit.
Facility Agreement. Means a written agreement or arrangement
between a State Party and the Organization relating to a specific
facility subject to on-site verification pursuant to Articles IV, V,
and VI of the Convention.
Host Team. Means the U.S. Government team that accompanies the
inspection team from the Organization for the Prohibition of Chemical
Weapons during a CWC inspection for which the regulations in the CWCR
apply.
Host Team Leader. Means the representative from the Department of
Commerce who heads the U.S. Government team that accompanies the
Inspection Team during a CWC inspection for which the regulations in
the CWCR apply.
Hydrocarbon. Means any organic compound that contains only carbon
and hydrogen.
Impurity. Means a chemical substance unintentionally present with
another chemical substance or mixture.
Inspection Notification. Means a written announcement to a plant
site by the United States National Authority (USNA) or the BIS Host
Team of an impending inspection under the Convention.
Inspection Site. Means any facility or area at which an inspection
is carried out and which is specifically defined in the respective
facility agreement or inspection request or mandate or inspection
request as expanded by the alternative or final perimeter.
Inspection Team. Means the group of inspectors and inspection
assistants assigned by the Director-General of the Technical
Secretariat to conduct a particular inspection.
Intermediate. Means a chemical formed through chemical reaction
that is subsequently reacted to form another chemical.
ITAR. Means the International Traffic in Arms Regulations (22 CFR
parts 120-130).
Organization for the Prohibition of Chemical Weapons (OPCW). Means
the international organization, located in The Hague, the Netherlands,
that administers the CWC.
Person. Means any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, any State or
any political subdivision thereof, or any political entity within a
State, any foreign government or nation or any agency, instrumentality
or political subdivision of any such government or nation, or other
entity located in the United States.
Plant. Means a relatively self-contained area, structure or
building containing one or more units with auxiliary and associated
infrastructure, such as:
(1) Small administrative area;
(2) Storage/handling areas for feedstock and products;
(3) Effluent/waste handling/treatment area;
(4) Control/analytical laboratory;
(5) First aid service/related medical section; and
(6) Records associated with the movement into, around, and from the
site, of declared chemicals and their feedstock or product chemicals
formed from them, as appropriate.
Plant site. Means the local integration of one or more plants, with
any intermediate administrative levels, which are under one operational
control, and includes common infrastructure, such as:
(1) Administration and other offices;
(2) Repair and maintenance shops;
(3) Medical center;
(4) Utilities;
(5) Central analytical laboratory;
(6) Research and development laboratories;
(7) Central effluent and waste treatment area; and
(8) Warehouse storage.
Precursor. Means any chemical reactant which takes part, at any
stage in the production, by whatever method, of a toxic chemical. The
term includes any key component of a binary or multicomponent chemical
system.
Processing. Means a physical process such as formulation,
extraction and purification in which a chemical is not converted into
another chemical.
Production. Means the formation of a chemical through chemical
reaction, including biochemical or biologically mediated reaction (see
Supplement No. 2 to this part).
(1) Production of Schedule 1 chemicals means formation through
chemical synthesis as well as processing to extract and isolate
Schedule 1 chemicals.
(2) Production of a Schedule 2 or Schedule 3 chemical means all
steps in the production of a chemical in any units within the same
plant through chemical reaction, including any associated processes
(e.g., purification, separation, extraction, distillation, or refining)
in which the chemical is not converted into another chemical. The exact
nature of any associated process (e.g., purification, etc.) is not
required to be declared.
Production by synthesis. Means production of a chemical from its
reactants.
Protective purposes in relation to Schedule 1 chemicals. Means any
purpose directly related to protection against toxic chemicals and to
protection against chemical weapons. Further means the Schedule 1
chemical is used for determining the adequacy of defense equipment and
measures.
Purposes not prohibited by the CWC. Means the following:
(1) Any peaceful purpose related to an industrial, agricultural,
research, medical or pharmaceutical activity or other activity;
(2) Any purpose directly related to protection against toxic
chemicals and to protection against chemical weapons;
(3) Any military purpose of the United States that is not connected
with the use of a chemical weapon and that is not dependent on the use
of the toxic or poisonous properties of the chemical weapon to cause
death or other harm; or
(4) Any law enforcement purpose, including any domestic riot
control
[[Page 24931]]
purpose and including imposition of capital punishment.
Report. Means information due to BIS on exports and imports of
Schedule 1, Schedule 2 or Schedule 3 chemicals above applicable
thresholds. Such information is included in the national aggregate
declaration transmitted to the OPCW. Facility-specific information is
not included in the national aggregate declaration. Note: This
definition does not apply to parts 719 and 720 of the CWCR (see the
definition of ``report'' in Sec. 719.1(b) of the CWCR).
Schedules of Chemicals. Means specific lists of toxic chemicals,
groups of chemicals, and precursors contained in the CWC. See
Supplements No. 1 to parts 712 through 714 of the CWCR.
State Party. Means a country for which the CWC is in force. See
Supplement No. 1 to this part.
Storage. For purposes of Schedule 1 chemical reporting, means any
quantity that is not accounted for under the categories of production,
export, import, consumption or domestic transfer.
Technical Secretariat. Means the organ of the OPCW charged with
carrying out administrative and technical support functions for the
OPCW, including carrying out the verification measures delineated in
the CWC.
Toxic Chemical. Means any chemical which, through its chemical
action on life processes, can cause death, temporary incapacitation, or
permanent harm to humans or animals. The term includes all such
chemicals, regardless of their origin or of their method of production,
and regardless of whether they are produced in facilities, in
munitions, or elsewhere. Toxic chemicals that have been identified for
the application of verification measures are in schedules contained in
Supplements No. 1 to parts 712 through 714 of the CWCR.
Trading company. Means any person involved in the export and/or
import of scheduled chemicals in amounts greater than specified
thresholds, but not in the production, processing or consumption of
such chemicals in amounts greater than threshold amounts requiring
declaration. If such persons exclusively export or import scheduled
chemicals in amounts greater than specified thresholds, they are
subject to reporting requirements but are not subject to routine
inspections. Such persons must be the principal party in interest of
the exports or imports and may not delegate CWC reporting
responsibilities to a forwarding or other agent.
Transfer. See domestic transfer.
Transient intermediate. Means any chemical which is produced in a
chemical process but, because it is in a transition state in terms of
thermodynamics and kinetics, exists only for a very short period of
time, and cannot be isolated, even by modifying or dismantling the
plant, or altering process operating conditions, or by stopping the
process altogether.
Undeclared facility or plant site. Means a facility or plant site
that is not subject to declaration requirements because of past or
anticipated production, processing or consumption involving scheduled
or unscheduled discrete organic chemicals above specified threshold
quantities. However, such facilities and plant sites may have a
reporting requirement for exports or imports of such chemicals.
Unit. Means the combination of those items of equipment, including
vessels and vessel set up, necessary for the production, processing or
consumption of a chemical.
United States. Means the several States of the United States, the
District of Columbia, and the commonwealths, territories, and
possessions of the United States, and includes all places under the
jurisdiction or control of the United States, including any of the
places within the provisions of paragraph (41) of section 40102 of
Title 49 of the United States Code, any civil aircraft of the United
States or public aircraft, as such terms are defined in paragraphs (1)
and (37), respectively, of section 40102 of Title 49 of the United
States Code, and any vessel of the United States, as such term is
defined in section 3(b) of the Maritime Drug Enforcement Act, as
amended (section 1903(b) of Title 46 App. of the United States Code).
United States National Authority (USNA). Means the Department of
State serving as the national focal point for the effective liaison
with the Organization for the Prohibition of Chemical Weapons and other
States Parties to the Convention and implementing the provisions of the
Chemical Weapons Convention Implementation Act of 1998 in coordination
with an interagency group designated by the President consisting of the
Secretary of Commerce, Secretary of Defense, Secretary of Energy, the
Attorney General, and the heads of other agencies considered necessary
or advisable by the President, or their designees. The Secretary of
State is the Director of the USNA.
Unscheduled chemical. Means a chemical that is not contained in
Schedule 1, Schedule 2, or Schedule 3 (see Supplements No. 1 to parts
712 through 714 of the CWCR).
Unscheduled Discrete Organic Chemical (UDOC). Means any ``discrete
organic chemical'' that is not contained in the Schedules of Chemicals
(see Supplements No. 1 to parts 712 through 714 of the CWCR) and
subject to the declaration requirements of part 715 of the CWCR.
Unscheduled discrete organic chemicals subject to declaration under the
CWCR are those produced by synthesis that are isolated for use or sale
as a specific end-product.
You. The term ``you'' or ``your'' means any person (see also
definition of ``person''). With regard to the declaration and reporting
requirements of the CWCR, ``you'' refers to persons that have an
obligation to report certain activities under the provisions of the
CWCR.
Sec. 710.2 Scope of the CWCR.
The Chemical Weapons Convention Regulations (parts 710 through 729
of this subchapter), or CWCR, implement certain obligations of the
United States under the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on
Their Destruction, known as the CWC or Convention.
(a) Persons and facilities subject to the CWCR. (1) The CWCR apply
to all persons and facilities located in the United States, except the
following U.S. Government facilities:
(i) Department of Defense facilities;
(ii) Department of Energy facilities; and
(iii) Facilities of other U.S. Government agencies that notify the
USNA of their decision to be excluded from the CWCR.
(2) For purposes of the CWCR, ``United States Government
facilities'' are those facilities owned and operated by a U.S.
Government agency (including those operated by contractors to the
agency), and those facilities leased to and operated by a U.S.
Government agency (including those operated by contractors to the
agency). ``United States Government facilities'' do not include
facilities owned by a U.S. Government agency and leased to a private
company or other entity such that the private company or entity may
independently decide for what purposes to use the facilities.
(b) Activities subject to the CWCR. The activities subject to the
CWCR (parts 710 through 729 of this subchapter) are activities,
including production, processing, consumption, exports and imports,
involving chemicals further described in parts 712 through 715 of the
CWCR. These do not include activities involving inorganic
[[Page 24932]]
chemicals other than those listed in the Schedules of Chemicals, or
other specifically exempted unscheduled discrete organic chemicals.
Sec. 710.3 Purposes of the Convention and CWCR.
(a) Purposes of the Convention. (1) The Convention imposes upon the
United States, as a State Party, certain declaration, inspection, and
other obligations. In addition, the United States and other States
Parties to the Convention undertake never under any circumstances to:
(i) Develop, produce, otherwise acquire, stockpile, or retain
chemical weapons, or transfer, directly or indirectly, chemical weapons
to anyone;
(ii) Use chemical weapons;
(iii) Engage in any military preparations to use chemical weapons;
or
(iv) Assist, encourage or induce, in any way, anyone to engage in
any activity prohibited by the Convention.
(2) One objective of the Convention is to assure States Parties
that lawful activities of chemical producers and users are not
converted to unlawful activities related to chemical weapons. To
achieve this objective and to give States Parties a mechanism to verify
compliance, the Convention requires the United States and all other
States Parties to submit declarations concerning chemical production,
consumption, processing and other activities, and to permit
international inspections within their borders.
(b) Purposes of the Chemical Weapons Convention Regulations. To
fulfill the United States' obligations under the Convention, the CWCR
(parts 710 through 729 of this subchapter) prohibit certain activities,
and compel the submission of information from all facilities in the
United States, except for Department of Defense and Department of
Energy facilities and facilities of other U.S. Government agencies that
notify the USNA of their decision to be excluded from the CWCR on
activities, including exports and imports of scheduled chemicals and
certain information regarding unscheduled discrete organic chemicals as
described in parts 712 through 715 of the CWCR. U.S. Government
facilities are those owned by or leased to the U.S. Government,
including facilities that are contractor-operated. The CWCR also
require access for on-site inspections and monitoring by the OPCW, as
described in parts 716 and 717 of the CWCR.
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 729 of this subchapter).
These examples are not exhaustive, and you should refer to parts 712
through 715 of the CWCR to determine your obligations.
(a) Schedule 1 chemicals are listed in Supplement No. 1 to part 712
of the CWCR. Schedule 1 chemicals have little or no use in industrial
and agricultural industries, but may have limited use for research,
pharmaceutical, medical, public health, or protective purposes.
(b) Schedule 2 chemicals are listed in Supplement No. 1 to part 713
of the CWCR. Although Schedule 2 chemicals may be useful in the
production of chemical weapons, they also have legitimate uses in areas
such as:
(1) Flame retardant additives and research;
(2) Dye and photographic industries (e.g., printing ink, ball point
pen fluids, copy mediums, paints, etc.);
(3) Medical and pharmaceutical preparation (e.g., anticholinergics,
arsenicals, tranquilizer preparations);
(4) Metal plating preparations;
(5) Epoxy resins; and
(6) Insecticides, herbicides, fungicides, defoliants, and
rodenticides.
(c) Schedule 3 chemicals are listed in Supplement No. 1 to part 714
of the CWCR. Although Schedule 3 chemicals may be useful in the
production of chemical weapons, they also have legitimate uses in areas
such as:
(1) The production of:
(i) Resins;
(ii) Plastics;
(iii) Pharmaceuticals;
(iv) Pesticides;
(v) Batteries;
(vi) Cyanic acid;
(vii) Toiletries, including perfumes and scents;
(viii) Organic phosphate esters (e.g., hydraulic fluids, flame
retardants, surfactants, and sequestering agents); and
(2) Leather tannery and finishing supplies.
(d) Unscheduled discrete organic chemicals are used in a wide
variety of commercial industries, and include acetone, benzoyl peroxide
and propylene glycol.
Sec. 710.5 Authority.
The CWCR (parts 710 through 729 of this subchapter) implement
certain provisions of the Chemical Weapons Convention under the
authority of the Chemical Weapons Convention Implementation Act of 1998
(Act), the National Emergencies Act, the International Emergency
Economic Powers Act (IEEPA), as amended, and the Export Administration
Act of 1979, as amended, by extending verification and trade
restriction requirements under Article VI and related parts of the
Verification Annex of the Convention to U.S. persons. In Executive
Order 13128 of June 25, 1999, the President delegated authority to the
Department of Commerce to promulgate regulations to implement the Act,
and consistent with the Act, to carry out appropriate functions not
otherwise assigned in the Act but necessary to implement certain
reporting, monitoring and inspection requirements of the Convention and
the Act.
Sec. 710.6 Relationship between the Chemical Weapons Convention
Regulations and the Export Administration Regulations, the
International Traffic in Arms Regulations, and the Alcohol, Tobacco,
Firearms and Explosives Regulations.
Certain obligations of the U.S. Government under the CWC pertain to
exports and imports. The obligations on exports are implemented in the
Export Administration Regulations (EAR) (15 CFR parts 730 through 799)
and the International Traffic in Arms Regulations (ITAR) (22 CFR parts
120 through 130). See in particular Sec. Sec. 742.2 and 742.18 and
part 745 of the EAR, and Export Control Classification Numbers 1C350,
1C351, 1C355 and 1C395 of the Commerce Control List (Supplement No. 1
to part 774 of the EAR). The obligations on imports are implemented in
the Chemical Weapons Convention Regulations (Sec. Sec. 712.2 and
713.1) and the Alcohol, Tobacco, Firearms and Explosives Regulations in
27 CFR part 447.
Supplement No. 1 to Part 710--States Parties to the Convention on the
Prohibition of the Development, Production, Stockpiling, and Use of
Chemical Weapons and on Their Destruction
List of States Parties as of March 25, 2006
Afghanistan
Albania
Algeria
Andorra
Antigua and Barbuda
Argentina
Armenia
Australia
Austria
Azerbaijan
Bahrain
Bangladesh
Belarus
Belgium
Belize
Benin
Bhutan
[[Page 24933]]
Bolivia
Bosnia-Herzegovina
Botswana
Brazil
Brunei Darussalam*
Bulgaria
Burkina Faso
Burundi
Cambodia
Cameroon
Canada
Cape Verde
Chad
Chile
China***
Colombia
Congo (Democratic Republic of the)
Cook Islands**
Costa Rica
Cote d'Ivoire (Ivory Coast)
Croatia
Cuba
Cyprus
Czech Republic
Denmark
Djibouti
Dominica
Ecuador
El Salvador
Equatorial Guinea
Eritrea
Estonia
Ethiopia
Fiji
Finland
France
Gabon
Gambia
Georgia
Germany
Ghana
Greece
Grenada
Guatemala
Guinea
Guyana
Haiti
Holy See*
Honduras
Hungary
Iceland
India
Indonesia
Iran (Islamic Republic of)
Ireland
Italy
Jamaica
Japan
Jordan
Kazakhstan
Kenya
Kiribati
Korea (Republic of)
Kuwait
Kyrgyzstan
Laos (P.D.R.)*
Latvia
Lesotho
Liberia
Libya
Liechtenstein
Lithuania
Luxembourg
Macedonia (The Former Yugoslav Republic of)
Madagascar
Malawi
Malaysia
Maldives
Mali
Malta
Marshall Islands
Mauritania
Mauritius
Mexico
Micronesia (Federated States of)
Moldova (Republic of)*
Monaco
Mongolia
Morocco
Mozambique
Namibia
Nauru
Nepal
Netherlands***
New Zealand
Nicaragua
Niger
Nigeria
Niue**
Norway
Oman
Pakistan
Palau
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Poland
Portugal
Qatar
Romania
Russian Federation
Rwanda
Saint Kitts and Nevis
Saint Lucia
Saint Vincent and the Grenadines
Samoa
San Marino
Sao Tome and Principe
Saudi Arabia
Senegal
Serbia and Montenegro
Seychelles
Sierra Leone
Singapore
Slovak Republic*
Slovenia
Solomon Islands
South Africa
Spain
Sri Lanka
Sudan
Suriname
Swaziland
Sweden
Switzerland
Tajikistan
Tanzania, United Republic of
Thailand
Timor Leste (East Timor)
Togo
Tonga
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan
Tuvalu
Uganda
Ukraine
United Arab Emirates
United Kingdom
United States
Uruguay
Uzbekistan
Vanuatu
Venezuela
Vietnam
Yemen
Zambia
Zimbabwe
* For export control purposes, these destinations are identified
using a different nomenclature under the Commerce Country Chart in
Supplement No. 1 to part 738 of the Export Administration
Regulations (EAR) (15 CFR parts 730-799).
** For export control purposes, Cook Islands and Niue are not
identified on the Commerce Country Chart in Supplement No. 1 to part
738 of the EAR and are treated the same as New Zealand, in
accordance with Sec. 738.3(b) of the EAR.
*** For CWC States Parties purposes, a territory, possession, or
department of any country that is listed in this Supplement as a
State Party to the CWC, is treated the same as the country of which
it is a territory, possession, or department (e.g., China includes
Hong Kong and Macau; the Netherlands includes Aruba and the
Netherlands Antilles).
Supplement No. 2 to Part 710.--Definitions of Production
----------------------------------------------------------------------------------------------------------------
Unscheduled discrete organic
Schedule 1 chemicals Schedule 2 and Schedule 3 chemicals chemicals (UDOCs)
----------------------------------------------------------------------------------------------------------------
Produced by a biochemical or biologically mediated reaction Produced by synthesis*
----------------------------------------------------------------------------------------------------------------
Formation through chemical All production steps in any units
synthesis. within the same plant which
Processing to extract and isolate includes associated processes--
Schedule 1 chemicals. purification, separation,
extraction distillation or
refining.**
----------------------------------------------------------------------------------------------------------------
* Intermediates used in a single or multi-step process to produce another declared UDOC are not declarable.
[[Page 24934]]
** Intermediates are subject to declaration, except ``transient intermediates,'' which are those chemicals in a
transition state in terms of thermodynamics and kinetics, that exist only for a very short period of time, and
cannot be isolated, even by modifying or dismantling the plant, or by altering process operating conditions,
or by stopping the process altogether are not subject to declaration.
PART 711--GENERAL INFORMATION REGARDING DECLARATION, REPORTING, AND
ADVANCE NOTIFICATION REQUIREMENTS, AND THE ELECTRONIC FILING OF
DECLARATIONS AND REPORTS
Sec.
711.1 Overviews of declaration, reporting, and advance notification
requirements.
711.2 Who submits declarations, reports, and advance notifications?
711.3 Compliance review.
711.4 Assistance in determining your obligations.
711.5 Numerical precision of submitted data.
711.6 Where to obtain forms.
711.7 Where to submit declarations, reports, and advance
notifications.
711.8 How to request authorization from BIS to make electronic
submissions of declarations or reports.
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
Sec. 711.1 Overviews of declaration, reporting, and advance
notification requirements.
Parts 712 through 715 of the CWCR (parts 710 through 729 of this
subchapter) describe the declaration, advance notification and
reporting requirements for Schedule 1, 2 and 3 chemicals and for
unscheduled discrete organic chemicals (UDOCs). For each type of
chemical, the Convention requires annual declarations. If, after
reviewing parts 712 through 715 of the CWCR, you determine that you
have declaration, advance notification or reporting requirements, you
may obtain the appropriate forms by contacting the Bureau of Industry
and Security (BIS) (see Sec. 711.6 of the CWCR).
Sec. 711.2 Who submits declarations, reports, and advance
notifications.
The owner, operator, or senior management official of a facility
subject to declaration, reporting, or advance notification requirements
under the CWCR (parts 710 through 729 of this subchapter) is
responsible for the submission of all required documents in accordance
with all applicable provisions of the CWCR.
Sec. 711.3 Compliance review.
Periodically, BIS will request information from persons and
facilities subject to the CWCR to determine compliance with the
reporting, declaration and notification requirements set forth herein.
Information requested may relate to the production, processing,
consumption, export, import, or other activities involving scheduled
chemicals and unscheduled discrete organic chemicals described in parts
712 through 715 of the CWCR. Any person or facility subject to the CWCR
and receiving such a request for information will be required to
provide a response to BIS within 30 working days of receipt of the
request. This requirement does not, in itself, impose a requirement to
create new records or maintain existing records in a manner other than
that directed by the recordkeeping provisions set forth in part 721 of
the CWCR.
Sec. 711.4 Assistance in determining your obligations.
(a) Determining if your chemical is subject to declaration,
reporting or advance notification requirements. (1) If you need
assistance in determining if your chemical is classified as a Schedule
1, Schedule 2, or Schedule 3 chemical, or is an unscheduled discrete
organic chemical, submit your written request for a chemical
determination to BIS. Such requests may be sent via facsimile to (703)
605-4425, e-mailed to cdr@cwc.gov, or mailed to the Treaty Compliance
Division, Bureau of Industry and Security, U.S. Department of Commerce,
1555 Wilson Boulevard, Suite 700, Arlington, Virginia 22209-2405, and
must be marked, ``ATTN: Chemical Determination.'' Your request should
include the information noted in paragraph (a)(2) of this section to
ensure an accurate determination. Also include any additional
information that you feel is relevant to the chemical or process
involved (see part 718 of the CWCR for provisions regarding treatment
of confidential business information). If you are unable to provide all
of the information required in paragraph (a)(2) of this section, you
should include an explanation identifying the reasons or deficiencies
that preclude you from supplying the information. If BIS cannot make a
determination based upon the information submitted, BIS will return the
request to you and identify the additional information that is
necessary to complete a chemical determination. BIS will provide a
written response to your chemical determination request within 10
working days of receipt of the request.
(2) Include the following information in each chemical
determination request:
(i) Date of request;
(ii) Company name and complete street address;
(iii) Point of contact;
(iv) Phone and facsimile number of contact;
(v) E-mail address of contact, if you want an acknowledgment of
receipt sent via e-mail;
(vi) Chemical Name;
(vii) Structural formula of the chemical, if the chemical is not
specifically identified by name and chemical abstract service registry
number in Supplements No. 1 to parts 712 through 714 of the CWCR; and
(viii) Chemical Abstract Service registry number, if assigned.
(b) Other inquiries. If you need assistance in interpreting the
provisions of the CWCR or need assistance with declaration, forms,
reporting, advance notification, inspection or facility agreement
issues, contact BIS's Treaty Compliance Division by phone at (703) 605-
4400. If you require a response from BIS in writing, submit a detailed
request to BIS that explains your question, issue, or request. Send the
request to the address or facsimile included in paragraph (a) of this
section, or e-mail the request to cwcqa@cwc.gov. Your request must be
marked, ``ATTN: CWCR Assistance.''
Sec. 711.5 Numerical precision of submitted data.
Numerical information submitted in declarations and reports is to
be provided per applicable rounding rules in each part (i.e., parts 712
through 715 of the CWCR) with a precision equal to that which can be
reasonably provided using existing documentation, equipment, and
measurement techniques.
Sec. 711.6 Where to obtain forms.
(a) Forms to complete declarations and reports required by the CWCR
may be obtained by contacting: Treaty Compliance Division, Bureau of
Industry and Security, U.S. Department of Commerce, 1555 Wilson Blvd.,
Suite 700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Forms
and forms software may also be downloaded from the Internet at
http://www.cwc.gov.
(b) If the amount of information you are required to submit is
greater than the given form will allow, multiple copies of forms may be
submitted.
Sec. 711.7 Where to submit declarations, reports and advanced
notifications.
Declarations, reports and advance notifications required by the
CWCR
[[Page 24935]]
must be sent to: Treaty Compliance Division, Bureau of Industry and
Security, U.S. Department of Commerce, 1555 Wilson Blvd., Suite 700,
Arlington, VA 22209-2405, Telephone: (703) 605-4400. Advanced
notifications may also be sent by facsimile to (703) 235-1481. Specific
types of declarations and reports and due dates are outlined in
Supplement No. 2 to parts 712 through 715 of the CWCR.
Sec. 711.8 How to request authorization from BIS to make electronic
submissions of declarations or reports.
(a) Scope. This section provides an optional method of submitting
declarations or reports. Specifically, this section applies to the
electronic submission of declarations and reports required under the
CWCR. If you choose to submit declarations and reports by electronic
means, all such electronic submissions must be made through the Web-
Data Entry System for Industry (Web-DESI), which can be accessed on the
CWC web site at http://www.cwc.gov.
(b) Authorization. If you or your company has a facility, plant
site, or trading company that has been assigned a U.S. Code Number (USC
Number), you may submit declarations and reports electronically, once
you have received authorization from BIS to do so. An authorization to
submit declarations and reports electronically may be limited or
withdrawn by BIS at any time. There are no prerequisites for obtaining
permission to submit electronically, nor are there any limitations with
regard to the types of declarations or reports that are eligible for
electronic submission. However, BIS may direct, for any reason, that
any electronic declaration or report be resubmitted in writing, either
in whole or in part.
(1) Requesting approval to submit declarations and reports
electronically. To submit declarations and reports electronically, you
or your company must submit a written request to BIS at the address
identified in Sec. 711.6 of the CWCR. Both the envelope and letter
must be marked, ``ATTN: Electronic Declaration or Report Request.''
Your request should be on company letterhead and must contain your name
or the company's name, your mailing address at the company, the name of
the facility, plant site or trading company and its U.S. Code Number,
the address of the facility, plant site or trading company (this
address may be different from the mailing address), the list of persons
who are authorized to view, edit, and/or submit declarations and
reports on behalf of your company, and the telephone number and name
and title of the owner, operator, or senior management official
responsible for certifying that each person listed in the request is
authorized to view, edit, and/or submit declarations and reports on
behalf of you or your company (i.e., the certifying official).
Additional information required for submitting electronic declarations
and reports may be found on BIS's Web site at http://www.cwc.gov. Once you
have completed and submitted the necessary certifications, BIS will
review your request for authorization to view, edit, and/or submit
declarations and reports electronically. BIS will notify you if
additional information is required and/or upon completion of its
review.
Note to Sec. 711.8(b)(1): You must submit a separate request
for each facility, plant site or trading company owned by your
company (e.g., each site that is assigned a unique U.S. Code
Number).
(2) Assignment and use of passwords for facilities, plant sites and
trading companies (USC password) and Web-DESI user accounts (user name
and password). (i) Each person, facility, plant site or trading company
authorized to submit declarations and reports electronically will be
assigned a password (USC password) that must be used in conjunction
with the U.S.C. Number. Each person authorized by BIS to view, edit,
and/or submit declarations and reports electronically for a facility,
plant site or trading company will be assigned a Web-DESI user account
(user name and password) telephonically by BIS. A Web-DESI user account
will be assigned to you only if your company has certified to BIS that
you are authorized to act for it in viewing, editing, and/or submitting
electronic declarations and reports under the CWCR.
Note to Sec. 711.8(b)(2)(i): When persons must have access to
multiple Web-DESI accounts, their companies must identify such
persons on the approval request for each of these Web-DESI accounts.
BIS will coordinate with such persons to ensure that the assigned
user name and password is the same for each account.
(ii) Your company may reveal the facility, plant site or trading
company password (USC password) only to Web-DESI users with valid
passwords, their supervisors, and employees or agents of the company
with a commercial justification for knowing the password.
(iii) If you are an authorized Web-DESI account user, you may not:
(A) Disclose your user name or password to anyone;
(B) Record your user name or password, either in writing or
electronically;
(C) Authorize another person to use your user name or password; or
(D) Use your user name or password following termination, either by
BIS or by your company, of your authorization or approval for Web-DESI
use.
(iv) To prevent misuse of the Web-DESI account:
(A) If Web-DESI user account information (i.e., user name and
password) is lost, stolen or otherwise compromised, the company and the
user must report the loss, theft or compromise of the user account
information, immediately, by calling BIS at (703) 235-1335. Within two
business days of making the report, the company and the user must
submit written confirmation to BIS at the address provided in Sec.
711.6 of the CWCR.
(B) Your company is responsible for immediately notifying BIS
whenever a Web-DESI user leaves the employ of the company or otherwise
ceases to be authorized by the company to submit declarations and
reports electronically on its behalf.
(v) No person may use, copy, appropriate or otherwise compromise a
Web-DESI account user name or password assigned to another person. No
person, except a person authorized access by the company, may use or
copy the facility, plant site or trading company password (USC
password), nor may any person steal or otherwise compromise this
password.
(c) Electronic submission of declarations and reports--(1) General
instructions. Upon submission of the required certifications and
approval of the company's request to use electronic submission, BIS
will provide instructions on both the method for transmitting
declarations and reports electronically and the process for submitting
required supporting documents, if any. These instructions may be
modified by BIS from time to time.
(2) Declarations and reports. The electronic submission of a
declaration or report will constitute an official document as required
under parts 712 through 715 of the CWCR. Such submissions must provide
the same information as written declarations and reports and are
subject to the recordkeeping provisions of part 720 of the CWCR. The
company and Web-DESI user submitting the declaration or report will be
deemed to have made all representations and certifications as if the
submission were made in writing by the company and signed by the
certifying official. Electronic submission of a declaration or report
will be
[[Page 24936]]
considered complete upon transmittal to BIS.
(d) Updating. A company approved for electronic submission of
declarations or reports under Web-DESI must promptly notify BIS of any
change in its name, ownership or address. If your company wishes to
have a person added as a Web-DESI user, your company must inform BIS
and follow the instructions provided by BIS. Your company should
conduct periodic reviews to ensure that the company's designated
certifying official and Web-DESI users are persons whose current
responsibilities make it necessary and appropriate that they act for
the company in either capacity.
PART 712--ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS
Sec.
712.1 Round to zero rule that applies to activities involving
Schedule 1 chemicals.
712.2 Restrictions on activities involving Schedule 1 chemicals.
712.3 Initial declaration requirements for declared facilities which
are engaged in the production of Schedule 1 chemicals for purposes
not prohibited by the CWC.
712.4 New Schedule 1 production facility.
712.5 Annual declaration requirements for facilities engaged in the
production of Schedule 1 chemicals for purposes not prohibited by
the CWC.
712.6 Advance notification and annual report of all exports and
imports of Schedule 1 chemicals to, or from, other States Parties.
712.7 Amended declaration or report.
712.8 Declarations and reports returned without action by BIS.
712.9 Deadlines for submission of Schedule 1 declarations, reports,
advance notifications, and amendments.
Supplement No. 1 to Part 712--Schedule 1 Chemicals
Supplement No. 2 to Part 712--Deadlines for Submission of Schedule 1
Declarations, Reports, Advance Notifications, Reports, and
Amendments
Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p.
200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.
Sec. 712.1 Round to zero rule that applies to activities involving
Schedule 1 chemicals.
Facilities that produce, export or import mixtures containing less
than 0.5% aggregate quantities of Schedule 1 chemicals (see Supplement
No. 1 to this part) as unavoidable by-products or impurities may round
to zero and are not subject to the provisions of this part 712.
Schedule 1 content may be calculated by volume or weight, whichever
yields the lesser percent. Note that such mixtures may be subject to
the regulatory requirements of other federal agencies.
Sec. 712.2 Restrictions on activities involving Schedule 1 chemicals.
(a) You may not produce Schedule 1 chemicals for protective
purposes.
(b) You may not import any Schedule 1 chemical unless:
(1) The import is from a State Party;
(2) The import is for research, medical, pharmaceutical, or
protective purposes;
(3) The import is in types and quantities strictly limited to those
that can be justified for such purposes; and
(4) You have notified BIS at least 45 calendar days prior to the
import, pursuant to Sec. 712.6 of the CWCR.
Note 1 to Sec. 712.2(b): Pursuant to Sec. 712.6, advance
notifications of import of saxitoxin of 5 milligrams or less for
medical/diagnostic purposes must be submitted to BIS at least 3 days
prior to import.
Note 2 to Sec. 712.2(b): For specific provisions relating to
the prior advance notification of exports of all Schedule 1
chemicals, see Sec. 745.1 of the Export Administration Regulations
(EAR) (15 CFR parts 730 through 799). For specific provisions
relating to license requirements for exports of Schedule 1
chemicals, see Sec. 742.2 and Sec. 742.18 of the EAR for Schedule
1 chemicals subject to the jurisdiction of the Department of
Commerce and see the International Traffic in Arms Regulations (22
CFR parts 120 through 130) for Schedule 1 chemicals subject to the
jurisdiction of the Department of State.
(c)(1) The provisions of paragraphs (a) and (b) of this section do
not apply to the retention, ownership, possession, transfer, or receipt
of a Schedule 1 chemical by a department, agency, or other entity of
the United States, or by a person described in paragraph (c)(2) of this
section, pending destruction of the Schedule 1 chemical;
(2) A person referred to in paragraph (c)(1) of this section is:
(i) Any person, including a member of the Armed Forces of the
United States, who is authorized by law or by an appropriate officer of
the United States to retain, own, possess transfer, or receive the
Schedule 1 chemical; or
(ii) In an emergency situation, any otherwise non-culpable person
if the person is attempting to seize or destroy the Schedule 1
chemical.
Sec. 712.3 Initial declaration requirements for declared facilities
which are engaged in the production of Schedule 1 chemicals for
purposes not prohibited by the CWC.
Initial declarations submitted in February 2000 remain valid until
amended or rescinded. If you plan to change/amend the technical
description of your facility submitted with your initial declaration,
you must submit an amended initial declaration to BIS 200 calendar days
prior to implementing the change (see Sec. 712.5(b)(1)(ii) of the
CWCR).
Sec. 712.4 New Schedule 1 production facility.
(a) Establishment of a new Schedule 1 production facility. (1) If
your facility has never before been declared under Sec. 712.5 of the
CWCR, or the initial declaration for your facility has been withdrawn
pursuant to Sec. 712.5(g) of the CWCR, and you intend to begin
production of Schedule 1 chemicals at your facility in quantities
greater than 100 grams aggregate per year for research, medical, or
pharmaceutical purposes, you must provide an initial declaration (with
a current detailed technical description of your facility) to BIS in no
less than 200 calendar days in advance of commencing such production.
Such facilities are considered to be ``new Schedule 1 production
facilities'' and are subject to an initial inspection within 200
calendar days of submitting an initial declaration.
(2) New Schedule 1 production facilities that submit an initial
declaration pursuant to paragraph (a)(1) of this section are considered
approved Schedule 1 production facilities for purposes of the CWC,
unless otherwise notified by BIS within 30 days of receipt by BIS of
that initial declaration.
(b) Types of declaration forms required. If your new Schedule 1
production facility will produce in excess of 100 grams aggregate of
Schedule 1 chemicals, you must complete the Certification Form, Form 1-
1 and Form A. You must also provide a detailed technical description of
the new facility or its relevant parts, and a detailed diagram of the
declared areas in the facility.
(c) Two hundred days after a new Schedule 1 production facility
submits its initial declaration, it is subject to the declaration
requirements in Sec. 712.5(a)(1) and (a)(2) and Sec. 712.5(b)(1)(ii)
of the CWCR.
Sec. 712.5 Annual declaration requirements for facilities engaged in
the production of Schedule 1 chemicals for purposes not prohibited by
the CWC.
(a) Declaration requirements--(1) Annual declaration on past
activities. You must complete the forms specified in paragraph (b)(2)
of this section if you produced at your facility in excess of 100 grams
aggregate of Schedule 1 chemicals in the previous calendar year. As a
declared Schedule 1 facility, in addition to declaring the production
of each Schedule 1 chemical that
[[Page 24937]]
comprises your aggregate production of Schedule 1 chemicals, you must
also declare any Schedule 1, Schedule 2, or Schedule 3 precursor used
to produce the declared Schedule 1 chemical. You must further declare
each Schedule 1 chemical used (consumed) and stored at your facility,
and domestically transferred from your facility during the previous
calendar year, whether or not you produced that Schedule 1 chemical at
your facility.
(2) Annual declaration on anticipated activities. You must complete
the forms specified in paragraph (b)(3) of this section if you
anticipate that you will produce at your facility more than 100 grams
aggregate of Schedule 1 chemicals in the next calendar year. If you are
not already a declared facility, you must complete an initial
declaration (see Sec. 712.4 of the CWCR) 200 calendar days before
commencing operations or increasing production which will result in
production of more than 100 grams aggregate of Schedule 1 chemicals.
(b) Declaration forms to be used--(1) Initial declaration. (i) You
must have completed the Certification Form, Form 1-1 and Form A if you
produced at your facility in excess of 100 grams aggregate of Schedule
1 chemicals in calendar years 1997, 1998, or 1999. You must have
provided a detailed current technical description of your facility or
its relevant parts including a narrative statement, and a detailed
diagram of the declared areas in the facility.
(ii) If you plan to change the technical description of your
facility from your initial declaration completed and submitted pursuant
to Sec. 712.3 or Sec. 712.4 of the CWCR, you must submit an amended
initial declaration to BIS 200 calendar days prior to the change. Such
amendments to your initial declaration must be made by completing a
Certification Form, Form 1-1 and Form A, including the new description
of the facility. See Sec. 712.7 of the CWCR for additional
instructions on amending Schedule 1 declarations.
(2) Annual declaration on past activities. If you are subject to
the declaration requirement of paragraph (a)(1) of this section, you
must complete the Certification Form and Forms 1-1, 1-2, 1-2A, 1-2B,
and Form A if your facility was involved in the production of Schedule
1 chemicals in the previous calendar year. Form B is optional.
(3) Annual declaration on anticipated activities. If you anticipate
that you will produce at your facility in excess of 100 grams aggregate
of Schedule 1 chemicals in the next calendar year you must complete the
Certification Form and Forms 1-1, 1-4, and Form A. Form B is optional.
(c) Quantities to be declared. If you produced in excess of 100
grams aggregate of Schedule 1 chemicals in the previous calendar year,
you must declare the entire quantity of such production, rounded to the
nearest gram. You must also declare the quantity of any Schedule 1,
Schedule 2 or Schedule 3 precursor used to produce the declared
Schedule 1 chemical, rounded to the nearest gram. You must further
declare the quantity of each Schedule 1 chemical consumed or stored by,
or domestically transferred from, your facility, whether or not the
Schedule 1 chemical was produced by your facility, rounded to the
nearest gram. In calculating the amount of Schedule 1 chemical you
produced, consumed or stored, count only the amount of the Schedule 1
chemical(s) in a mixture, not the total weight of the mixture (i.e., do
not count the weight of the solution, solvent, or container).
(d) For the purpose of determining if a Schedule 1 chemical is
subject to declaration, you must declare a Schedule 1 chemical that is
an intermediate, but not a transient intermediate.
(e) ``Declared'' Schedule 1 facilities and routine inspections.
Only facilities that submitted a declaration pursuant to paragraph
(a)(1) or (a)(2) of this section or Sec. 712.4 of the CWCR are
considered ``declared'' Schedule 1 facilities. A ``declared'' Schedule
1 facility is subject to initial and routine inspection by the OPCW
(see part 716 of the CWCR).
(f) Approval of declared Schedule 1 production facilities.
Facilities that submit declarations pursuant to this section are
considered approved Schedule 1 production facilities for purposes of
the CWC, unless otherwise notified by BIS within 30 days of receipt by
BIS of an annual declaration on past activities or annual declaration
on anticipated activities (see paragraphs (a)(1) and (a)(2) of this
section). If your facility does not produce more than 100 grams
aggregate of Schedule 1 chemicals, no approval by BIS is required.
(g) Withdrawal of Schedule 1 initial declarations. A facility
subject to Sec. Sec. 712.3, 712.4 and 712.5 of the CWCR may withdraw
its initial declaration at any time by notifying BIS in writing. A
notification requesting the withdrawal of the initial declaration
should be sent on company letterhead to the address in Sec. 711.6 of
the CWCR. BIS will acknowledge receipt of the withdrawal of the initial
declaration. Facilities withdrawing their initial declaration may not
produce subsequently in excess of 100 grams aggregate of Schedule 1
chemicals within a calendar year unless pursuant to Sec. 712.4.
Sec. 712.6 Advance notification and annual report of all exports and
imports of Schedule 1 chemicals to, or from, other States Parties.
Pursuant to the Convention, the United States is required to notify
the OPCW not less than 30 days in advance of every export or import of
a Schedule 1 chemical, in any quantity, to or from another State Party.
In addition, the United States is required to provide a report of all
exports and imports of Schedule 1 chemicals to or from other States
Parties during each calendar year. If you plan to export or import any
quantity of a Schedule 1 chemical from or to your declared facility,
undeclared facility or trading company, you must notify BIS in advance
of the export or import and complete an annual report of exports and
imports that actually occurred during the previous calendar year. The
United States will transmit to the OPCW the advance notifications and a
detailed annual declaration of each actual export or import of a
Schedule 1 chemical from/to the United States. Note that the advance
notification and annual report requirements of this section do not
relieve you of any requirement to obtain a license for export of
Schedule 1 chemicals subject to the EAR or ITAR or a license for import
of Schedule 1 chemicals from the Department of Justice under the
Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part
447. Only ``declared'' facilities, as defined in Sec. 712.5(e) of the
CWCR, are subject to initial and routine inspections pursuant to part
716 of the CWCR.
(a) Advance notification of exports and imports. You must notify
BIS at least 45 calendar days prior to exporting or importing any
quantity of a Schedule 1 chemical, except for exports or imports of 5
milligrams or less of Saxitoxin--B (7)--for medical/diagnostic
purposes, listed in Supplement No. 1 to this part to or from another
State Party. Advance notification of export or import of 5 milligrams
or less of Saxitoxin for medical/diagnostic purposes only, must be
submitted to BIS at least 3 calendar days prior to export or import.
Note that advance notifications for exports may be sent to BIS prior to
or after submission of a license application to BIS for Schedule 1
chemicals subject to the EAR and controlled under ECCN 1C351 or to the
Department of State for Schedule 1 chemicals controlled under the ITAR.
Such advance notifications must be submitted separately from license
applications.
[[Page 24938]]
(1) Advance notifications should be on company letterhead or must
clearly identify the reporting entity by name of company, complete
address, name of contact person and telephone and facsimile numbers,
along with the following information:
(i) Chemical name;
(ii) Structural formula of the chemical;
(iii) Chemical Abstract Service (CAS) Registry Number;
(iv) Quantity involved in grams;
(v) Planned date of export or import;
(vi) Purpose (end-use) of export or import (i.e., research,
medical, pharmaceutical, or protective purposes);
(vii) Name(s) of exporter and importer;
(viii) Complete street address(es) of exporter and importer;
(ix) U.S. export license or control number, if known; and
(x) Company identification number, once assigned by BIS.
(2) Send the advance notification by facsimile to (703) 235-1481 or
to the following address for mail and courier deliveries: Treaty
Compliance Division, Bureau of Industry and Security, Department of
Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, VA 22209-2405,
Attn: ``Advance Notification of Schedule 1 Chemical [Export]
[Import].''
(3) Upon receipt of the advance notification, BIS will inform the
exporter or importer of the earliest date after which the shipment may
occur under the advance notification procedure. To export a Schedule 1
chemical subject to an export license requirement either under the EAR
or the ITAR, the exporter must have applied for and been granted a
license (see Sec. 742.2 and Sec. 742.18 of the EAR, or the ITAR at 22
CFR parts 120 through 130).
(b) Annual report requirements for exports and imports of Schedule
1 chemicals. Any person subject to the CWCR that exported or imported
any quantity of Schedule 1 chemical to or from another State Party
during the previous calendar year has a reporting requirement under
this section.
(1) Annual report on exports and imports. Declared and undeclared
facilities, trading companies, and any other person subject to the CWCR
that exported or imported any quantity of a Schedule 1 chemical to or
from another State Party in a previous calendar year must submit an
annual report on exports and imports.
(2) Report forms to submit.--(i) Declared Schedule 1 facilities.
(A) If your facility declared production of a Schedule 1 chemical and
you also exported or imported any amount of that same Schedule 1
chemical, you must report the export or import by submitting either:
(1) Combined declaration and report. Submit, along with your
declaration, Form 1-3 for that same Schedule 1 chemical to be reported.
Attach Form A, as appropriate; Form B is optional; or
(2) Report. Submit, separately from your declaration, a
Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1
chemical to be reported. Attach Form A, as appropriate; Form B is
optional.
(B) If your facility declared production of a Schedule 1 chemical
and exported or imported any amount of a different Schedule 1 chemical,
you must report the export or import by submitting either:
(1) Combined declaration and report. Submit, along with your
declaration, a Form 1-3 for each Schedule 1 chemical to be reported.
Attach Form A, as appropriate; Form B is optional; or
(2) Report. Submit, separately from your declaration, a
Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1
chemical to be reported. Attach Form A, as appropriate; Form B is
optional.
(ii) If you are an undeclared facility, trading company, or any
other person subject to the CWCR, and you exported or imported any
amount of a Schedule 1 chemical, you must report the export or import
by submitting a Certification Form, Form 1-1, and a Form 1-3 for each
Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form
B is optional.
(c) Paragraph (a) of this section does not apply to the activities
and persons set forth in Sec. 712.2(b) of the CWCR.
Sec. 712.7 Amended declaration or report.
In order for BIS to maintain accurate information on previously
submitted facility declarations, including information necessary to
facilitate inspection notifications and activities or to communicate
declaration or report requirements, amended declarations or reports
will be required under the following circumstances described in this
section. This section applies only to annual declarations on past
activities and annual reports on exports and imports submitted for the
previous calendar year or annual declarations on anticipated activities
covering the current calendar year, unless specified otherwise in a
final inspection report.
(a) Changes to information that directly affect inspection of a
declared facility's Annual Declaration of Past Activities (ADPA) or
Annual Declaration on Anticipated Activities (ADAA). You must submit an
amended declaration or report to BIS within 15 days of any change in
the following information:
(1) Types of Schedule 1 chemicals produced (e.g., additional
Schedule 1 chemicals);
(2) Quantities of Schedule 1 chemicals produced;
(3) Activities involving Schedule 1 chemicals; and
(4) End-use of Schedule 1 chemicals (e.g., additional end-use(s)).
(b) Changes to export or import information submitted in Annual
Reports on Exports and Imports from undeclared facilities, trading
companies and U.S. persons. You must submit an amended report or
amended combined declaration and report for changes to export or import
information within 15 days of any change in the following export or
import information:
(1) Types of Schedule 1 chemicals exported or imported (e.g.,
additional Schedule 1 chemicals);
(2) Quantities of Schedule 1 chemicals exported or imported;
(3) Destination(s) of Schedule 1 chemicals exported;
(4) Source(s) of Schedule 1 chemicals imported;
(5) Activities involving exports and imports of Schedule 1
chemicals; and
(6) End-use(s) of Schedule 1 chemicals exported or imported (e.g.,
additional end-use(s)).
(c) Changes to company and facility information previously
submitted to BIS in the ADPA, the ADAA, and the Annual Report on
Exports and Imports.--(1) Internal company changes. You must submit an
amended declaration or report to BIS within 30 days of any change in
the following information:
(i) Name of declaration/report point of contact (D-POC), including
telephone number, facsimile number, and e-mail address;
(ii) Name(s) of inspection point(s) of contact (I-POC), including
telephone number(s), and facsimile number(s);
(iii) Company name (see Sec. 712.7(c)(2) of the CWCR for other
company changes);
(iv) Company mailing address;
(v) Facility name;
(vi) Facility owner, including telephone number, and facsimile
number; and
(vii) Facility operator, including telephone number, and facsimile
number.
(2) Change in ownership of company or facility. If you sold or
purchased a declared facility or trading company, you must submit an
amended declaration or report to BIS, either before the effective date
of the change or
[[Page 24939]]
within 30 days after the effective date of the change. The amended
declaration or report must include the following information:
(i) Information that must be submitted to BIS by the company
selling a declared facility:
(A) Name of seller (i.e., name of the company selling a declared
facility);
(B) Name of the declared facility and U.S. Code Number for that
facility;
(C) Name of purchaser (i.e., name of the new company purchasing a
declared facility) and identity of contact person for the purchaser, if
known;
(D) Date of ownership transfer or change;
(E) Additional details on sale of the declared facility relevant to
ownership or operational control over any portion of that facility
(e.g., whether the entire facility or only a portion of the declared
facility has been sold to a new owner); and
(F) Details regarding whether the new owner will submit the next
declaration or report for the entire calendar year during which the
ownership change occurred, or whether the previous owner and new owner
will submit separate declarations or reports for the periods of the
calendar year during which each owned the facility or trading company.
(1) If the new owner is responsible for submitting the declaration
or report for the entire current year, it must have in its possession
the records for the period of the year during which the previous owner
owned the facility.
(2) If the previous owner and new owner will submit separate
declarations for the periods of the calendar year during which each
owned the facility (``part-year declarations''), and if, at the time of
transfer of ownership, the previous owner's activities are not above
the declaration thresholds set forth in Sec. Sec. 712.4 and 712.5 of
the CWCR, the previous owner and the new owner must still submit
declarations to BIS with the below threshold quantities indicated.
(3) If the part-year declarations submitted by the previous owner
and the new owner are not, when combined, above the declaration
threshold set forth in Sec. Sec. 712.4 and 712.5 of the CWCR, BIS will
return the declarations without action as set forth in Sec. 712.8 of
the CWCR.
(4) If part-year reports are submitted by the previous owner and
the new owner as required in Sec. 712.5 of the CWCR, BIS will submit
both reports in the OPCW.
(ii) Information that must be submitted to BIS by the company
purchasing a declared facility:
(A) Name of purchaser (i.e., name of company purchasing a declared
facility;
(B) Mailing address of purchaser;
(C) Name of declaration point of contact (D-POC) for the purchaser,
including telephone number, facsimile number, and e-mail address;
(D) Name of inspection points of contact (I-POC) for the purchaser,
including telephone number(s), facsimile number(s) and e-mail
address(es);
(E) Name of the declared facility and U.S. Code Number for that
facility;
(F) Location of the declared facility;
(G) Owner and operator of the declared facility, including
telephone number, and facsimile number; and
(H) Details on the next declaration or report submission on whether
the new owner will submit the declaration or report for the entire
calendar year during which the ownership change occurred, or whether
the previous owner and new owner will submit separate declarations or
reports for the periods of the calendar year during which each owned
the facility or trading company.
(1) If the new owner is taking responsibility for submitting the
declaration or report for the entire current year, it must have in its
possession the records for the period of the year during which the
previous owner owned the facility.
(2) If the previous owner and new owner will submit separate
declarations for the periods of the calendar year during which each
owned the facility, and, at the time of transfer of ownership, the
previous owner's activities are not above the declaration thresholds
set forth in Sec. Sec. 712.4 and 712.5 of the CWCR, the previous owner
and the new owner must still submit declarations to BIS with the below
threshold quantities indicated.
(3) If the part-year declarations submitted by the previous owner
and the new owner are not, when combined, above the declaration
threshold set forth in Sec. Sec. 712.4 and 712.5 of the CWCR, BIS will
return the declarations without action as set forth in Sec. 712.8 of
the CWCR.
(4) If part-year reports are submitted by the previous owner and
the new owner as required in Sec. 712.5 of the CWCR, BIS will submit
both reports to the OPCW.
Note 1 to Sec. 712.7(c): You must submit an amendment to your
most recently submitted declaration or report for declaring changes
to internal company information (e.g., company name change) or
changes in ownership of a facility or trading company that have
occurred since the submission of this declaration or report. BIS
will process the amendment to ensure current information is on file
regarding the facility or trading company (e.g., for inspection
notifications and correspondence) and will also forward the amended
declaration to the OPCW to ensure that they also have current
information on file regarding your facility or trading company.
Note 2 to Sec. 712.7(c): You may notify BIS of change in
ownership via a letter to the address given in Sec. 711.6 of the
CWCR. If you are submitting an amended declaration or report, use
Form B to address details regarding the sale of the declared
facility or trading company.
Note 3 to Sec. 712.7(c): For ownership changes, the declared
facility or trading company will maintain its original U.S. Code
Number, unless the facility or trading company is sold to multiple
owners, at which time BIS will assign new U.S. Code Numbers for the
new facilities.
(d) Inspection-related amendments. If, following completion of an
inspection (see parts 716 and 717 of the CWCR), you are required to
submit an amended declaration based on the final inspection report, BIS
will notify you in writing of the information that will be required
pursuant to Sec. Sec. 716.10 and 717.5 of the CWCR. You must submit an
amended declaration to BIS no later than 45 days following your receipt
of the BIS post-inspection letter.
(e) Non-substantive changes. If, subsequent to the submission of
your declaration or report to BIS, you discover one or more non-
substantive typographical errors in your declaration or report, you are
not required to submit an amended declaration or report to BIS.
Instead, you may correct these errors in a subsequent declaration or
report.
(f) Documentation required for amended declarations or reports. If
you are required to submit an amended declaration or report to BIS
pursuant to paragraph (a), (b), (c), or (d) of this section, you must
submit either:
(1) A letter containing all of the corrected information required,
in accordance with the provisions of this section, to amend your
declaration or report; or
(2) Both of the following:
(i) A new Certification Form (i.e., Form 1-1); and
(ii) The specific forms (e.g., annual declaration on past
activities) containing the corrected information required, in
accordance with the provisions of this part 712, to amend your
declaration or report.
Sec. 712.8 Declarations and reports returned without action by BIS.
If you submit a declaration or report and BIS determines that the
information contained therein is not required by the
[[Page 24940]]
CWCR, BIS will return the original declaration or report to you,
without action, accompanied by a letter explaining BIS's decision. In
order to protect your confidential business information, BIS will not
maintain a copy of any declaration or report that is returned without
action (RWA). However, BIS will maintain a copy of the RWA letter.
Sec. 712.9 Deadlines for submission of Schedule 1 declarations,
reports, advance notifications, and amendments.
Declarations, reports, advance notifications, and amendments
required under this part must be postmarked by the appropriate date
identified in Supplement No. 2 to this part 712. Required declarations,
reports, advance notifications, and amendments include:
(a) Annual declaration on past activities (Schedule 1 chemical
production during the previous calendar year);
(b) Annual report on exports and imports of Schedule 1 chemicals
from facilities, trading companies, and other persons (during the
previous calendar year);
(c) Combined declaration and report (production of Schedule 1
chemicals, as well as exports or imports of the same or different
Schedule 1 chemicals, by a declared facility during the previous
calendar year);
(d) Annual declaration on anticipated activities (anticipated
production of Schedule 1 chemicals in the next calendar year);
(e) Advance notification of any export to or import from another
State Party;
(f) Initial declaration of a new Schedule 1 chemical production
facility; and
(g) Amended declaration or report, including combined declaration
and report.
Supplement No. 1 to Part 712.--Schedule 1 Chemicals
------------------------------------------------------------------------
(CAS registry
number)
------------------------------------------------------------------------
A. Toxic chemicals:
(1) O-Alkyl (< =C10, incl. cycloalkyl) alkyl (Me,
Et, n-Pr or i-Pr)-phosphonofluoridates
e.g. Sarin: O-Isopropyl (107-44-8)
methylphosphonofluoridate.....................
Soman: O-Pinacolyl methylphosphonofluoridate... (96-64-0)
(2) O-Alkyl (< =C10, incl. cycloalkyl) N,N-dialkyl (77-81-6)
(Me, Et, n-Pr or i-Pr) phosphoramidocyanidates
e.g. Tabun: O-Ethyl N,N-dimethyl
phosphoramidocyanidate............................
(3) O-Alkyl (H or < =C10, incl. cycloalkyl) S-2- (50782-69-9)
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-chloroethylthio)ethane (3563-36-8)
1,3-Bis(2-chloroethylthio)-n-propane........... (63905-10-2)
1,4-Bis(2-chloroethylthio)-n-butane............ (142868-93-7)
1,5-Bis(2-chloroethylthio)-n-pentane........... (142868-94-8)
Bis(2-chloroethylthiomethyl)ether.............. (63918-90-1)
O-Mustard: Bis(2-chloroethylthioethyl)ether.... (63918-89-8)
(5) Lewisites:
Lewisite 1: 2-Chlorovinyldichloroarsine........ (541-25-3)
Lewisite 2: Bis(2-chlorovinyl)chloroarsine..... (40334-69-8)
Lewisite 3: Tris(2-chlorovinyl)arsine.......... (40334-70-1)
(6) Nitrogen mustards:
HN1: Bis(2-chloroethyl)ethylamine.............. (538-07-8)
HN2: Bis(2-chloroethyl)methylamine............. (51-75-2)
HN3: Tris(2-chloroethyl)amine.................. (555-77-1)
(7) Saxitoxin...................................... (35523-89-8)
(8) Ricin.......................................... (9009-86-3)
B. Precursors:
(9) Alkyl (Me, Et, n-Pr or i-Pr) (676-99-3)
phosphonyldifluorides e.g. DF:
Methylphosphonyldifluoride........................
(10) O-Alkyl (H or < =C10, incl. cycloalkyl) O-2- (57856-11-8)
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): Saxitoxin (35523-89-8) and
Ricin (9009-86-3).
Note 2: All Schedule 1 chemicals not listed in Note 1 to this Supplement
are controlled for export purposes by the Directorate of Defense Trade
Controls of the Department of State under the International Traffic in
Arms Regulations (22 CFR parts 120 through 130).
Supplement No. 2 to Part 712.--Deadlines for Submission of Schedule 1
Declarations, Advance Notifications, Reports, and Amendments
------------------------------------------------------------------------
Declarations, advance
notifications and reports Applicable forms Due dates
------------------------------------------------------------------------
Annual Declaration on Past Certification, 1-1, February 28th of the
Activities (previous 1-2,1-2A,1-2B, A year following any
calendar year)--Declared (as appropriate), B calendar year in
facility (past production). (optional). which more than 100
grams aggregate of
Schedule 1
chemicals were
produced,
[[Page 24941]]
Annual report on exports and Certification, 1-1,1- February 28th of the
imports (previous calendar 3, A (as year following any
year) (facility, trading appropriate), B calendar year in
company, other persons). (optional). which Schedule 1
chemicals were
exported or
imported.
Combined Declaration and Certification, 1-1, February 28th of the
Report. 1-2, 1-2A, 1-2B, 1- year following any
3, A (as calendar year in
appropriate), B which Schedule 1
(optional). chemicals were
produced, exported,
or imported.
Annual Declaration of Certification, 1-1, September 3rd of the
Anticipated Activities 1-4, A (as year prior to any
(next calendar year). appropriate), B calendar year in
(optional). which Schedule 1
activities are
anticipated to
occur.
Advance Notification of any Notify on 45 calendar days
export to or import from letterhead. See prior to any export
another State Party. Sec. 712.6 of the or import of
CWCR. Schedule 1
chemicals, except 3
days prior to
export or import of
5 milligrams or
less of saxitoxin
for medical/
diagnositc
purposes.
Initial Declaration of a new Certification, 1-1, 200 calendar days
Schedule 1 facility A (as appropriate), prior to producing
(technical description). B (optional). in excess of 100
grams aggregate of
Schedule 1
chemicals.
Amended Declaration......... Certification, 1-1,
1-2, 1-2A.
--Chemicals/Activities: .................... --15 calendar days
Sec. 712.7(a). after change in
information.
--Company information: .................... --30 calendar days
Sec. 712.7(c). after change in
information.
--Post-inspection .................... --45 calendar days
letter: Sec. 712.7(d). after receipt of
letter.
Amended Report Sec. Certification, 1-1, --15 calendar days
712.7(b). 1-3, A (as after change in
appropriate), B information.
(optional).
Amended Combined Declaration Certification, 1-1, --15 calendar days
& Report. 1-2, 1-2A, 1-3, A after change in
(as appropriate), B information.
(optional).
------------------------------------------------------------------------
PART 713--ACTIVITIES INVOLVING SCHEDULE 2 CHEMICALS
Sec.
713.1 Prohibition on exports and imports of Schedule 2 chemicals to
and from States not Party to the CWC.
713.2 Annual declaration requirements for plant sites that produce,
process or consume Schedule 2 chemicals in excess of specified
thresholds.
713.3 Annual declaration and reporting requirements for exports and
imports of Schedule 2 chemicals.
713.4 Advance declaration requirements for additionally planned
production, processing or consumption of Schedule 2 chemicals.
713.5 Amended declaration or report.
713.6 Declarations and reports returned without action by BIS.
713.7 Deadlines for submission of Schedule 2 declarations, reports,
and amendments.
Supplement No. 1 to Part 713--Schedule 2 Chemicals
Supplement No. 2 to Part 713--Deadlines for Submission of Schedule 2
Declarations, Reports, and Amendments
Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50
U.S.C. 1701 et seq; E.O. 12938 59 FR 59099, 3 CFR, 1994 Comp., p.
950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p.
200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.
Sec. 713.1 Prohibition on exports and imports of Schedule 2 chemicals
to and from States not Party to the CWC.
(a) You may not export any Schedule 2 chemical (see Supplement No.
1 to this part) to any destination or import any Schedule 2 chemical
from any destination other than a State Party to the Convention. See
Supplement No. 1 to part 710 of the CWCR for a list of States that are
party to the Convention.
Note to Sec. 713.1(a): See Sec. 742.18 of the Export
Administration Regulations (EAR) (15 CFR part 742) for prohibitions
that apply to exports of Schedule 2 chemicals to States not Party to
the CWC.
(b) Paragraph (a) of this section does not apply to:
(1) The export or import of a Schedule 2 chemical to or from a
State not Party to the CWC by a department, agency, or other entity of
the United States, or by any person, including a member of the Armed
Forces of the United States, who is authorized by law, or by an
appropriate officer of the United States to transfer or receive the
Schedule 2 chemical;
(2) Mixtures containing Schedule 2A chemicals, if the concentration
of each Schedule 2A chemical in the mixture is 1% or less by weight
(note, however, that such mixtures may be subject to the regulatory
requirements of other federal agencies);
(3) Mixtures containing Schedule 2B chemicals if the concentration
of each Schedule 2B chemical in the mixture is 10% or less by weight
(note, however, that such mixtures may be subject to the regulatory
requirements of other federal agencies); or
(4) Products identified as consumer goods packaged for retail sale
for personal use or packaged for individual use.
Sec. 713.2 Annual declaration requirements for plant sites that
produce, process or consume Schedule 2 chemicals in excess of specified
thresholds.
(a) Declaration of production, processing or consumption of
Schedule 2 chemicals for purposes not prohibited by the CWC--(1)
Quantities of production, processing or consumption that trigger
declaration requirements. You must complete the forms specified in
paragraph (b) of this section if you have been or will be involved in
the following activities:
(i) Annual declaration on past activities. (A) You produced,
processed or consumed at one or more plants on your plant site during
any of the previous three calendar years, a Schedule 2 chemical in
excess of any of the following declaration threshold quantities:
(1) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (see
Schedule 2, paragraph A.3 in Supplement No. 1 to this part);
(2) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-
2(trifluoromethyl)-1-propene or 100 kilograms of chemical Amiton: 0,0-
Diethyl S-[2-(diethylamino)
[[Page 24942]]
ethyl] phosphorothiolate and corresponding alkylated or protonated
salts (see Schedule 2, paragraphs A.1 and A.2 in Supplement No. 1 to
this part); or
(3) 1 metric ton of any chemical listed in Schedule 2, Part B (see
Supplement No. 1 to this part).
(B) In order to trigger a declaration requirement for a past
activity (i.e., production, processing or consumption) involving a
Schedule 2 chemical, a plant on your plant site must have exceeded the
applicable declaration threshold for that particular activity during
one or more of the previous three calendar years. For example, if a
plant on your plant site produced 800 kilograms of thiodiglycol and
consumed 300 kilograms of the same Schedule 2 chemical, during the
previous calendar year, you would not have a declaration requirement
based on these activities, because neither activity at your plant would
have exceeded the declaration threshold of 1 metric ton for that
Schedule 2 chemical. However, a declaration requirement would apply if
an activity involving a Schedule 2 chemical at the plant exceeded the
declaration threshold in an earlier year (i.e., during the course of
any other calendar year within the past three calendar years), as
indicated in the example provided in the note to this paragraph.
Note to Sec. 713.2(a)(1)(i)(B): To determine whether or not you
have an annual declaration on past activities requirement for
Schedule 2 chemicals, you must determine whether you produced,
processed or consumed a Schedule 2 chemical above the applicable
threshold at one or more plants on your plant site in any one of the
three previous calendar years. For example, for the 2004 annual
declaration on past activities period, if you determine that one
plant on your plant site produced greater than 1 kilogram of the
chemical BZ in calendar year 2002, and no plants on your plant site
produced, processed or consumed any Schedule 2 chemical above the
applicable threshold in calendar years 2003 or 2004, you still have
a declaration requirement under this paragraph for the previous
calendar year (2004). However, you must only declare on Form 2-3
(question 2-3.1), production data for calendar year 2004. You would
declare ``0'' production because you did not produce BZ above the
applicable threshold in calendar year 2004. Since the plant site did
not engage in any other declarable activity (i.e., consumption,
processing) in the 2002-2004 declaration period, you would leave
blank questions 2-3.2 and 2-3.3 on Form 2-3. Note that declaring a
``0'' production quantity for 2004, as opposed to leaving the
question blank, permits BIS to distinguish the activity that
triggered the declaration requirement from activities that were not
declarable during that period.
(ii) Annual declaration on anticipated activities. You anticipate
that you will produce, process or consume at one or more plants on your
plant site during the next calendar year, a Schedule 2 chemical in
excess of the applicable declaration threshold set forth in paragraphs
(a)(1)(i)(A)(1) through (3) of this section.
Note to Sec. 713.2(a)(1)(ii): A null ``0'' declaration is not
required if you do not plan to produce, process or consume a
Schedule 2 chemical in the next calendar year.
(2) Schedule 2 chemical production. (i) For the purpose of
determining Schedule 2 production, you must include all steps in the
production of a chemical in any units within the same plant through
chemical reaction, including any associated processes (e.g.,
purification, separation, extraction, distillation, or refining) in
which the chemical is not converted into another chemical. The exact
nature of any associated process (e.g., purification, etc.) is not
required to be declared.
(ii) For the purpose of determining if a Schedule 2 chemical is
subject to declaration, you must declare an intermediate Schedule 2
chemical, but not a transient intermediate Schedule 2 chemical.
(3) Mixtures containing a Schedule 2 chemical. (i) Mixtures that
must be counted. You must count the quantity of each Schedule 2
chemical in a mixture, when determining the total quantity of a
Schedule 2 chemical produced, processed, or consumed at a plant on your
plant site, if the concentration of each Schedule 2 chemical in the
mixture is 30% or more by volume or by weight, whichever yields the
lesser percent. Do not count a Schedule 2 chemical in the mixture that
represents less than 30% by volume or by weight.
(ii) How to count the quantity of each Schedule 2 chemical in a
mixture. If your mixture contains 30% or more concentration of a
Schedule 2 chemical, you must count the quantity (weight) of each
Schedule 2 chemical in the mixture, not the total weight of the
mixture. You must separately declare each Schedule 2 chemical with a
concentration in the mixture that is 30% or more and exceeds the
quantity threshold detailed in paragraphs (a)(1)(i)(A)(1) through (3)
of this section.
(iii) Determining declaration requirements for production,
processing and consumption. If the total quantity of a Schedule 2
chemical produced, processed or consumed at a plant on your plant site,
including mixtures that contain 30% or more concentration of a Schedule
2 chemical, exceeds the applicable declaration threshold set forth in
paragraphs (a)(1)(i)(A)(1) through (3) of this section, you have a
declaration requirement. For example, if during calendar year 2001, a
plant on your plant site produced a mixture containing 300 kilograms of
thiodiglycol in a concentration of 32% and also produced 800 kilograms
of thiodiglycol, the total amount of thiodiglycol produced at that
plant for CWCR purposes would be 1100 kilograms, which exceeds the
declaration threshold of 1 metric ton for that Schedule 2 chemical. You
must declare past production of thiodiglycol at that plant site for
calendar year 2001. If, on the other hand, a plant on your plant site
processed a mixture containing 300 kilograms of thiodiglycol in a
concentration of 25% and also processed 800 kilograms of thiodiglycol
in other than mixture form, the total amount of thiodiglycol processed
at that plant for CWCR purposes would be 800 kilograms and would not
trigger a declaration requirement. This is because the concentration of
thiodiglycol in the mixture is less than 30% and therefore did not have
to be ``counted'' and added to the other 800 kilograms of processed
thiodiglycol at that plant.
(b) Types of declaration forms to be used--(1) Annual declaration
on past activities. You must complete the Certification Form and Forms
2-1, 2-2, 2-3, 2-3A, and Form A if one or more plants on your plant
site produced, processed or consumed more than the applicable threshold
quantity of a Schedule 2 chemical described in paragraphs
(a)(1)(i)(A)(1) through (3) of this section in any of the three
previous calendar years. Form B is optional. If you are subject to
annual declaration requirements, you must include data for the previous
calendar year only.
(2) Annual declaration on anticipated activities. You must complete
the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A, 2-3C, and Form A
if you plan to produce, process, or consume at any plant on your plant
site a Schedule 2 chemical above the applicable threshold set forth in
paragraphs (a)(1)(i)(A)(1) through (3) of this section during the
following calendar year. Form B is optional.
(c) Quantities to be declared--(1) Production, processing and
consumption of a Schedule 2 chemical above the declaration threshold--
(i) Annual declaration on past activities. If you are required to
complete forms pursuant to paragraph (a)(1)(i) of this section, you
must declare the aggregate quantity resulting from each type of
activity (production, processing or consumption) from each plant on
your plant site that exceeds the applicable
[[Page 24943]]
threshold for that Schedule 2 chemical. Do not include in these
aggregate production, processing, and consumption quantities any data
from plants on the plant site that did not individually produce,
process or consume a Schedule 2 chemical in amounts greater than the
applicable threshold. For example, if a plant on your plant site
produced a Schedule 2 chemical in an amount greater than the applicable
declaration threshold during the previous calendar year, you would have
to declare only the production quantity from that plant, provided that
the total amount of the Schedule 2 chemical processed or consumed at
the plant did not exceed the applicable declaration threshold during
any one of the previous three calendar years. If in the previous
calendar year your production, processing and consumption activities
all were below the applicable declaration threshold, but your
declaration requirement is triggered because of production activities
occurring in an earlier year, you would declare ``0'' only for the
declared production activities.
(ii) Annual declaration on anticipated activities. If you are
required to complete forms pursuant to paragraph (a)(1)(ii) of this
section, you must declare the aggregate quantity of any Schedule 2
chemical that you plan to produce, process or consume at any plant(s)
on your plant site above the applicable thresholds set forth in
paragraphs (a)(1)(i)(A)(1) through (3) of this section during the next
calendar year. Do not include in these anticipated aggregate
production, processing, and consumption quantities any data from plants
on the plant site that you do not anticipate will individually produce,
process or consume a Schedule 2 chemical in amounts greater than the
applicable thresholds.
(2) Rounding. For the chemical BZ, report quantities to the nearest
hundredth of a kilogram (10 grams). For PFIB and the Amiton family,
report quantities to the nearest 1 kilogram. For all other Schedule 2
chemicals, report quantities to the nearest 10 kilograms.
(d) ``Declared'' Schedule 2 plant site. A plant site that submitted
a declaration pursuant to paragraph (a)(1) of this section is a
``declared'' plant site.
(e) Declared Schedule 2 plant sites subject to initial and routine
inspections. A ``declared'' Schedule 2 plant site is subject to initial
and routine inspection by the Organization for the Prohibition of
Chemical Weapons if it produced, processed or consumed in any of the
three previous calendar years, or is anticipated to produce, process or
consume in the next calendar year, in excess of ten times the
applicable declaration threshold set forth in paragraphs
(a)(1)(i)(A)(1) through (3) of this section (see part 716 of the CWCR).
A ``declared'' Schedule 2 plant site that has received an initial
inspection is subject to routine inspection.
Sec. 713.3 Annual declaration and reporting requirements for exports
and imports of Schedule 2 chemicals.
(a) Declarations and reports of exports and imports of Schedule 2
chemicals--(1) Declarations. A Schedule 2 plant site that is declared
because it produced, processed or consumed a Schedule 2 chemical at one
or more plants above the applicable threshold set forth in paragraph
(b) of this section, and also exported from or imported to the plant
site that same Schedule 2 chemical above the applicable threshold, must
submit export and import information as part of its declaration.
(2) Reports. The following persons must submit a report if they
individually exported or imported a Schedule 2 chemical above the
applicable threshold indicated in paragraph (b) of this section:
(i) A declared plant site that exported or imported a Schedule 2
chemical that was different than the Schedule 2 chemical produced,
processed or consumed at one or more plants at the plant site above the
applicable declaration threshold;
(ii) An undeclared plant site;
(iii) A trading company; or
(iv) Any other person subject to the CWCR.
Note to Sec. 713.3(a)(1) and (a)(2)(i): A declared Schedule 2
plant site may need to declare exports or imports of Schedule 2
chemicals that it produced, processed or consumed above the
applicable threshold and also report exports or imports of different
Schedule 2 chemicals that it did not produce, process or consume
above the applicable threshold quantities. The report may be
submitted to BIS either with or separately from the annual
declaration on past activities (see Sec. 713.3(d) of the CWCR).
Note to Sec. 713.3(a)(2): The U.S. Government will not submit
to the OPCW company-specific information relating to the export or
import of Schedule 2 chemicals contained in reports . The U.S.
Government will add all export and import information contained in
reports to export and import information contained in declarations
to establish the U.S. national aggregate declaration on exports and
imports.
Note to Sec. 713.3(a)(1) and (2): Declared and undeclared plant
sites must count, for declaration or reporting purposes, all exports
from and imports to the entire plant site, not only from or to
individual plants on the plant site.
(b) Quantities of exports or imports that trigger a declaration or
reporting requirement. (1) You have a declaration or reporting
requirement and must complete the forms specified in paragraph (d) of
this section if you exported or imported a Schedule 2 chemical in
excess of the following threshold quantities:
(i) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (See
Schedule 2, paragraph A.3 included in Supplement No. 1 to this part);
(ii) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-
2(trifluoromethyl)-1-propene or 100 kilograms of Amiton: O,O Diethyl S-
[2(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or
protonated salts (see Schedule 2, paragraphs A.1 and A.2 included in
Supplement No.1 to this part); or
(iii) 1 metric ton of any chemical listed in Schedule 2, Part B
(see Supplement No.1 to this part).
(2) Mixtures containing a Schedule 2 chemical. The quantity of each
Schedule 2 chemical contained in a mixture must be counted for the
declaration or reporting of an export or import only if the
concentration of each Schedule 2 chemical in the mixture is 30% or more
by volume or by weight, whichever yields the lesser percent. You must
declare separately each Schedule 2 chemical whose concentration in the
mixture is 30% or more.
Note 1 to Sec. 713.3(b)(2): See Sec. 713.2(a)(2)(ii) of the
CWCR for information on counting amounts of Schedule 2 chemicals
contained in mixtures and determining declaration and reporting
requirements.
Note 2 to Sec. 713.3(b)(2): The ``30% and above'' mixtures rule
applies only for declaration and reporting purposes. This rule does
not apply for purposes of determining whether the export of your
mixture to a non-State Party requires an End-Use Certificate or for
determining whether you need an export license from BIS (see Sec.
742.2, Sec. 742.18 and Sec. 745.2 of the Export Administration
Regulations) or from the Department of State (see the International
Traffic in Arms Regulations (22 CFR parts 120 through130)).
(c) Declaration and reporting requirements--(1) Annual declaration
on past activities. A plant site described in paragraph (a)(1) of this
section that has an annual declaration requirement for the production,
processing, or consumption of a Schedule 2 chemical for the previous
calendar year also must declare the export and/or import of that same
Schedule 2 chemical if the amount exceeded the applicable threshold set
forth in paragraph (b) of this section. The plant site must declare
such export or import information as part of its annual declaration of
past activities.
[[Page 24944]]
(2) Annual report on exports and imports. Declared plant sites
described in paragraph (a)(2)(i) of this section, and undeclared plant
sites, trading companies or any other person (described in paragraphs
(a)(2)(ii) through (iv) of this section) subject to the CWCR that
exported or imported a Schedule 2 chemical in a previous calendar year
in excess of the applicable thresholds set forth in paragraph (b) of
this section must submit an annual report on such exports or imports.
(d) Types of declaration and reporting forms to be used--(1) Annual
declaration on past activities. If you are a declared Schedule 2 plant
site, as described in paragraph (a)(1) of this section, you must
complete Form 2-3B, in addition to the forms required by Sec.
713.2(b)(1) of the CWCR, for each declared Schedule 2 chemical exported
or imported above the applicable threshold in the previous calendar
year.
(2) Annual report on exports and imports. (i) If you are a declared
plant site, as described in paragraph (a)(2)(i) of this section, you
may fulfill your annual reporting requirements by:
(A) Submitting, with your annual declaration on past activities, a
Form 2-3B for each Schedule 2 chemical you exported or imported above
the applicable threshold. Attach Form A, as appropriate; Form B is
optional; or
(B) Submitting, separately from your annual declaration on past
activities, a Certification Form, Form 2-1, and Form 2-3B for each
Schedule 2 chemical you exported or imported above the applicable
threshold. Attach Form A, as appropriate; Form B is optional.
(ii) If you are an undeclared plant site, trading company or any
other person subject to the CWCR, you must complete the Certification
Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported
or imported above the applicable threshold. Attach Form A, as
appropriate; Form B is optional.
(e) Quantities to be declared--(1) Calculations. If you exported
from or imported to your plant site, trading company, or other location
more than the applicable threshold of a Schedule 2 chemical in the
previous calendar year, you must declare or report all exports and
imports of that chemical by country of destination or country of
origin, respectively, and indicate the total amount exported to or
imported from each country.
(2) Rounding. For purposes of declaring or reporting exports and
imports of a Schedule 2 chemical, you must total all exports and
imports per calendar year per recipient or source and then round as
follows: For the chemical BZ, the total quantity for each country of
destination or country of origin (source) should be reported to the
nearest hundredth of a kilogram (10 grams); for PFIB and Amiton and
corresponding alkylated or protonated salts, the quantity for each
destination or source should be reported to the nearest 1 kilogram; and
for all other Schedule 2 chemicals, the total quantity for each
destination or source should be reported to the nearest 10 kilograms.
Sec. 713.4 Advance declaration requirements for additionally planned
production, processing, or consumption of Schedule 2 chemicals.
(a) Declaration requirements for additionally planned activities.
(1) You must declare additionally planned production, processing, or
consumption of Schedule 2 chemicals after the annual declaration on
anticipated activities for the next calendar year has been delivered to
BIS if:
(i) You plan that a previously undeclared plant on your plant site
under Sec. 713.2(a)(1)(ii) of the CWCR will produce, process, or
consume a Schedule 2 chemical above the applicable declaration
threshold;
(ii) You plan to produce, process, or consume at a plant declared
under Sec. 713.2(a)(1)(ii) of the CWCR an additional Schedule 2
chemical above the applicable declaration threshold;
(iii) You plan an additional activity (production, processing, or
consumption) at your declared plant above the applicable declaration
threshold for a chemical declared under Sec. 713.2(a)(1)(ii) of the
CWCR;
(iv) You plan to increase the production, processing, or
consumption of a Schedule 2 chemical by a plant declared under Sec.
713.2(a)(1)(ii) of the CWCR from the amount exceeding the applicable
declaration threshold to an amount exceeding the applicable inspection
threshold (see Sec. 716.1(b)(2) of the CWCR);
(v) You plan to change the starting or ending date of anticipated
production, processing, or consumption declared under Sec.
713.2(a)(1)(ii) of the CWCR by more than three months; or
(vi) You plan to increase your production, processing, or
consumption of a Schedule 2 chemical by a declared plant site by 20
percent or more above that declared under Sec. 713.2(a)(1)(ii) of the
CWCR.
(2) If you must submit a declaration on additionally planned
activities because you plan to engage in any of the activities listed
in paragraphs (a)(1)(i) through (vi) of this section, you also should
declare changes to your declaration relating to the following
activities. You do not have to submit an additionally planned
declaration if you are only changing the following non-quantitative
activities:
(i) Changes to the plant's production capacity;
(ii) Changes or additions to the product group codes for the plant
site or the plant(s);
(iii) Changes to the plant's activity status (i.e., dedicated,
multipurpose, or other status);
(iv) Changes to the plant's multipurpose activities;
(v) Changes to the plant site's status relating to domestic
transfer of the chemical;
(vi) Changes to the plant site's purposes for which the chemical
will be produced, processed or consumed; or
(vii) Changes to the plant site's status relating to exports of the
chemical or the addition of new countries for export.
(b) Declaration forms to be used. If you are required to declare
additionally planned activities pursuant to paragraph (a) of this
section, you must complete the Certification Form and Forms 2-1, 2-2,
2-3, and 2-3C as appropriate. Such forms are due to BIS at least 15
days prior to beginning the additional activity.
Sec. 713.5 Amended declaration or report.
In order for BIS to maintain accurate information on previously
submitted plant site declarations, including information necessary to
facilitate inspection notifications and activities or to communicate
declaration or reporting requirements, amended declarations or reports
will be required under the circumstances described in this section.
This section applies only to annual declarations on past activities
submitted for the three previous calendar years, annual reports on
exports and imports for the previous calendar year or annual
declarations on anticipated activities covering the current calendar
year, unless specified otherwise in a final inspection report.
(a) Changes to information that directly affect inspection of a
declared plant site's Annual Declaration of Past Activities (ADPA) or
Combined Annual Declaration and Report. You must submit an amended
declaration or report to BIS within 15 days of any change in the
following information:
(1) Types of Schedule 2 chemicals produced, processed, or consumed;
(2) Quantities of Schedule 2 chemicals produced, processed, or
consumed;
(3) Activities involving Schedule 2 chemicals (production,
processing, consumption);
(4) End-use of Schedule 2 chemicals (e.g., additional end-use(s));
[[Page 24945]]
(5) Product group codes for Schedule 2 chemicals produced,
processed, or consumed;
(6) Production capacity for manufacturing a specific Schedule 2
chemical at particular plant site;
(7) Exports or imports (e.g., changes in the types of Schedule 2
chemicals exported or imported or in the quantity, recipients, or
sources of such chemicals);
(8) Domestic transfers (e.g., changes in the types of Schedule 2
chemicals, types of destinations, or product group codes); and
(9) Addition of new plant(s) for the production, processing, or
consumption of Schedule 2 chemicals.
(b) Changes to export or import information submitted in Annual
Reports on Exports and Imports from undeclared plant sites, trading
companies and U.S. persons. You must submit an amended report or
amended combined declaration and report to BIS within 15 days of any
change in the following export or import information:
(1) Types of Schedule 2 chemicals exported or imported (additional
Schedule 2 chemicals);
(2) Quantities of Schedule 2 chemicals exported or imported;
(3) Destination(s) of Schedule 2 chemicals exported; and
(4) Source(s) of Schedule 2 chemicals imported.
(c) Changes to company and plant site information that must be
maintained by BIS for the ADPA, Annual Declaration on Anticipated
Activities (ADAA), and the Annual Report on Exports and Imports--(1)
Internal company changes. You must submit an amended declaration or
report to BIS within 30 days of any change in the following
information:
(i) Name of declaration/report point of contact (D-POC), including
telephone number, facsimile number, and e-mail address;
(ii) Name(s) of inspection point(s) of contact (I-POC), including
telephone number(s), facsimile number(s) and e-mail address(es);
(iii) Company name (see paragraph (c)(2) of this section for other
company changes);
(iv) Company mailing address;
(v) Plant site name;
(vi) Plant site owner, including telephone number, and facsimile
number;
(vii) Plant site operator, including telephone number, and
facsimile number;
(viii) Plant name;
(ix) Plant owner, including telephone number, and facsimile number;
and
(x) Plant operator, including telephone number and facsimile
number.
(2) Change in ownership of company, plant site, or plant. If you
sold or purchased a declared plant site, plant, or trading company you
must submit an amended declaration or report to BIS, either before the
effective date of the change or within 30 days after the effective date
of the change. The amended declaration or report must include the
following information:
(i) Information that must be submitted to BIS by the company
selling a declared plant site:
(A) Name of seller (i.e., name of the company selling a declared
plant site);
(B) Name of the declared plant site and U.S. Code Number for that
plant site;
(C) Name of purchaser (i.e., name of the new company/owner
purchasing a declared plant site) and identity of contact person for
the purchaser, if known;
(D) Date of ownership transfer or change;
(E) Additional (e.g., unique) details on the sale of the declared
plant site relevant to ownership or operational control over any
portion of the declared plant site (e.g., whether the entire plant site
or only a portion of the declared plant site has been sold to a new
owner); and
(F) Details regarding whether the new owner will submit the next
declaration or report for the entire calendar year during which the
ownership change occurred, or whether the previous owner and new owner
will submit separate declarations or reports for the periods of the
calendar year during which each owned the plant site or trading
company.
(1) If the new owner is responsible for submitting the declaration
or report for the entire current year, it must have in its possession
the records for the period of the year during which the previous owner
owned the plant site.
(2) If the previous owner and new owner will submit separate
declarations or reports for the periods of the calendar year during
which each owned the plant site, and, if at the time of transfer of
ownership, the previous owner's activities are not above the
declaration or reporting thresholds set forth in Sec.
713.2(a)(1)(i)(A)(1) through (3) and Sec. 713.3(b)(1)(i) through (iii)
of the CWCR, respectively, the previous owner and the new owner must
still submit declarations to BIS with the below threshold quantities
indicated.
(3) If the part-year declarations submitted by the previous owner
and the new owner are not, when combined, above the declaration
thresholds set forth in Sec. 713.2(a)(1)(i)(A)(1) through (3) of the
CWCR, BIS will return the declarations without action as set forth in
Sec. 713.6 of the CWCR.
(4) If part-year reports submitted by the previous owner and the
new owner are not, when combined, above the thresholds in Sec. Sec.
713.3(b)(1)(i) through (iii) of the CWCR, BIS will return the reports
without action as set forth in Sec. 713.6 of the CWCR.
(ii) Information that must be submitted to BIS by the company
purchasing a declared plant site:
(A) Name of purchaser (i.e., name of individual or company
purchasing a declared plant site);
(B) Mailing address of purchaser;
(C) Name of declaration point of contact (D-POC) for the purchaser,
including telephone number, facsimile number, and e-mail address;
(D) Name of inspection point(s) of contact (I-POC) for the
purchaser, including telephone number(s), facsimile number(s) and e-
mail address(es);
(E) Name of the declared plant site and U.S. Code Number for that
plant site;
(F) Location of the declared plant site;
(G) Owner of the declared plant site, including telephone number,
and facsimile number;
(H) Operator of the declared plant site, including telephone
number, and facsimile number;
(I) Name of plant(s) where Schedule 2 activities exceed the
applicable declaration threshold;
(J) Owner and operator of plant(s) where Schedule 2 activities
exceed the applicable declaration threshold, including telephone
numbers, and facsimile numbers;
(K) Location of the plant where Schedule 2 activities exceed the
applicable declaration threshold; and
(L) Details on the next declaration or report submission on whether
the new owner will submit the declaration or report for the entire
calendar year during which the ownership change occurred, or whether
the previous owner and new owner will submit separate declarations or
reports for the periods of the calendar year during which each owned
the plant site or trading company.
Note 1 to Sec. 713.5(c): You must submit an amendment to your
most recently submitted declaration or report for declaring changes
to internal company information (e.g., company name change) or
changes in ownership of a facility or trading company that have
occurred since the submission of this declaration or report. BIS
will process the amendment to ensure current information is
[[Page 24946]]
on file regarding the facility or trading company (e.g., for
inspection notifications and correspondence) and will also forward
the amended declaration to the OPCW to ensure that they also have
current information on file regarding your facility or trading
company.
Note 2 to Sec. 713.5(c): You may notify BIS of change in
ownership via a letter to the address given in Sec. 711.6 of the
CWCR. If you are submitting an amended declaration or report, use
Form B to address details regarding the sale of the declared plant
site or trading company.
Note 3 to Sec. 713.5(c): For ownership changes, the declared
facility or trading company will maintain its original U.S. Code
Number, unless the plant site or trading company is sold to multiple
owners, at which time BIS will assign new U.S. Code Numbers.
(d) Inspection-related amendments. If, following the completion of
an inspection (see parts 716 and 717 of the CWCR), you are required to
submit an amended declaration based on the final inspection report, BIS
will notify you in writing of the information that will be required
pursuant to Sec. Sec. 716.10 and 717.5 of the CWCR. You must submit an
amended declaration to BIS no later than 45 days following your receipt
of BIS's post-inspection letter.
(e) Non-substantive changes. If, subsequent to the submission of
your declaration or report to BIS, you discover one or more non-
substantive typographical errors in your declaration or report, you are
not required to submit an amended declaration or report to BIS.
Instead, you may correct these errors in a subsequent declaration or
report.
(f) Documentation required for amended declarations or reports. If
you are required to submit an amended declaration or report to BIS
pursuant to paragraph (a), (b), (c), or (d) of this section, you must
submit either:
(1) A letter containing all of the corrected information required,
in accordance with the provisions of this section, to amend your
declaration or report; or
(2) Both of the following:
(i) A new Certification Form; and
(ii) The specific forms required for the declaration or report type
being amended (e.g., annual declaration on past activities) containing
the corrected information required, in accordance with the requirements
of this section, to amend your declaration or report.
Sec. 713.6 Declarations and reports returned without action by BIS.
If you submit a declaration or report and BIS determines that the
information contained therein is not required by the CWCR, BIS will
return the original declaration or report to you, without action,
accompanied by a letter explaining BIS's decision. In order to protect
your confidential business information, BIS will not maintain a copy of
any declaration or report that is returned without action (RWA).
However, BIS will maintain a copy of the RWA letter.
Sec. 713.7 Deadlines for submission of Schedule 2 declarations,
reports, and amendments.
Declarations, reports, and amendments required under this part must
be postmarked by the appropriate date identified in Supplement No. 2 to
this part 713. Required declarations, reports, and amendments include:
(a) Annual declaration on past activities (production, processing,
or consumption of Schedule 2 chemicals during the previous calendar
year);
(b) Annual report on exports and imports of Schedule 2 chemicals by
plant sites, trading companies, and other persons subject to the CWCR
(during the previous calendar year);
(c) Combined declaration and report (production, processing, or
consumption of Schedule 2 chemicals, as well as exports or imports of
the same or different Schedule 2 chemicals, by a declared plant site
during the previous calendar year);
(d) Annual declaration on anticipated activities (production,
processing or consumption) involving Schedule 2 chemicals during the
next calendar year;
(e) Declaration on Additionally Planned Activities (production,
processing or consumption) involving Schedule 2 chemicals; and
(f) Amended declaration and report, including combined declaration
and report.
Supplement No. 1 to Part 713.--Schedule 2 Chemicals
------------------------------------------------------------------------
(CAS registry
number)
------------------------------------------------------------------------
A. Toxic chemicals:
(1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] (78-53-5)
phosphorothiolate and corresponding alkylated or
protonated salts..................................
(2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)- (382-21-8)
1-propene.........................................
(3) BZ: 3-Quinuclidinyl benzilate.................. (6581-06-2)
B. Precursors:
(4) Chemicals, except for those listed in Schedule (676-97-1)
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.......................
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)
------------------------------------------------------------------------
Notes to Supplement No. 1
Note 1: Note that the following Schedule 2 chemicals are controlled for
export purposes by the Directorate of Defense Trade Controls of the
Department of State under the International Traffic in Arms
Regulations (22 CFR parts 120 through 130): Amiton: O,O-Diethyl S-[2-
(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or
protonated salts (78-53-5); BZ: 3-Quinuclidinyl benzilate 6581-06-2);
and Methylphosphonyl dichloride (676-97-1).
[[Page 24947]]
Note 2: All Schedule 2 chemicals not listed in Note 1 to this Supplement
are controlled for export purposes under the Export Administration
Regulations (see part 774 of the EAR, the Commerce Control List).
Supplement No. 2 to Part 713.--Deadlines for Submission of Schedule 2
Declarations, Reports, and Amendments
------------------------------------------------------------------------
Declarations and reports Applicable forms Due dates
------------------------------------------------------------------------
Annual Declaration on Past Certification, 2-1, February 28 of the
Activities (previous 2-2, 2-3, 2-3A, 2- year following any
calendar year)--Declared 3B (if also calendar year in
plant site (production, exported or which the
processing, or consumption). imported), A (as production,
appropriate), B processing, or
(optional). consumption of a
Schedule 2 chemical
exceeded the
applicable
declaration
thresholds in Sec.
713.2(a)(1)(i) of
the CWCR.
Annual Report on Exports and Certification, 2-1, February 28 of the
Imports (previous calendar 2-3B, A (as year following any
year)--Plant site, trading appropriate), B calendar year in
company, other persons. (optional). which exports or
imports of a
Schedule 2 chemical
by a plant site,
trading company, or
other person
subject to the CWCR
(as described in
Sec. 713.3(a)(2)
of the CWCR)
exceeded the
applicable
thresholds in Sec.
713.3(b)(1) of the
CWCR.
Combined Declaration & Certification, 2-1, February 28 of the
Report--Declared plant site 2-2, 2-3, 2-3A, 2- year following any
(production, processing, or 3B, A (as calendar year in
consumption; exports and appropriate), B which the
imports). (optional). production,
processing, or
consumption of a
Schedule 2 chemical
and the export or
import of the same
or a different
Schedule 2 chemical
by a declared plant
site exceeded the
applicable
thresholds in Sec.
Sec.
713.2(a)(1)(i) and
713.3(b)(1),
respectively, of
the CWCR.
Annual Declaration on Certification, 2-1, September 3 of the
Anticipated Activities 2-2, 2-3, 2-3A, 2- year prior to any
(next calendar year). 3C, A (as calendar year in
appropriate), B which Schedule 2
(optional). activities are
anticipated to
occur.
Declaration on Additionally Certification, 2-1, 15 calendar days
Planned Activities 2-2, 2-3, 2-3A, 2- before the
(production, processing and 3C, A (as additionally
consumption). appropriate), B planned activity
(optional). begins.
Amended Declaration......... Certification, 2-1,
2-2, 2-3 2-3A, 2-3B
(if also exported
or imported), A (as
appropriate), B
(optional).
--Declaration .................... --15 calendar days
information. after change in
information.
--Company information... .................... --30 calendar days
after change in
information.
--Post-inspection letter .................... --45 calendar days
after receipt of
letter.
Amended Report.............. Certification, 2-1, --15 calendar days
2-3B, A (as after change in
appropriate), B information.
(optional).
Amended Combined Declaration Certification, 2-1, --15 calendar days
& Report. 2-2, 2-3, 2-3A, 2- after change in
3B, A (as information.
appropriate), B
(optional).
------------------------------------------------------------------------
PART 714--ACTIVITIES INVOLVING SCHEDULE 3 CHEMICALS
Sec.
714.1 Annual declaration requirements for plant sites that produce a
Schedule 3 chemical in excess of 30 metric tons.
714.2 Annual reporting requirements for exports and imports in
excess of 30 metric tons of Schedule 3 chemicals.
714.3 Advance declaration requirements for additionally planned
production of Schedule 3 chemicals.
714.4 Amended declaration or report.
714.5 Declarations and reports returned without action by BIS.
714.6 Deadlines for submission of Schedule 3 declarations, reports,
and amendments.
Supplement No. 1 to Part 714--Schedule 3 Chemicals
Supplement No. 2 to Part 714--Deadlines for Submission of Schedule 3
Declarations, Reports, and Amendments
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
Sec. 714.1 Annual declaration requirements for plant sites that
produce a Schedule 3 chemical in excess of 30 metric tons.
(a) Declaration of production of Schedule 3 chemicals for purposes
not prohibited by the CWC.--(1) Production quantities that trigger the
declaration requirement. You must complete the appropriate forms
specified in paragraph (b) of this section if you have produced or
anticipate producing a Schedule 3 chemical (see Supplement No. 1 to
this part) as follows:
(i) Annual declaration on past activities. You produced at one or
more plants on your plant site in excess of 30 metric tons of any
single Schedule 3 chemical during the previous calendar year.
(ii) Annual declaration on anticipated activities. You anticipate
that you will produce at one or more plants on your plant site in
excess of 30 metric tons of any single Schedule 3 chemical in the next
calendar year.
(2) Schedule 3 chemical production. (i) For the purpose of
determining Schedule 3 production, you must include all steps in the
production of a chemical in any units within the same plant through
chemical reaction, including any associated processes (e.g.,
purification, separation, extraction, distillation, or refining) in
which the chemical is not converted into another chemical. The exact
nature of any associated process (e.g., purification, etc.) is not
required to be declared.
(ii) For the purpose of determining if a Schedule 3 chemical is
subject to declaration, you must declare an intermediate Schedule 3
chemical, but not a transient intermediate Schedule 3 chemical.
(3) Mixtures containing a Schedule 3 chemical. (i) When you must
count the quantity of a Schedule 3 chemical in a
[[Page 24948]]
mixture for declaration purposes. The quantity of each Schedule 3
chemical contained in a mixture must be counted for declaration
purposes only if the concentration of each Schedule 3 chemical in the
mixture is 80% or more by volume or by weight, whichever yields the
lesser percent.
(ii) How to count the amount of a Schedule 3 chemical in a mixture.
If your mixture contains 80% or more concentration of a Schedule 3
chemical, you must count only the amount (weight) of the Schedule 3
chemical in the mixture, not the total weight of the mixture.
(b) Types of declaration forms to be used.--(1) Annual declaration
on past activities. You must complete the Certification Form and Forms
3-1, 3-2, 3-3, and Form A if one or more plants on your plant site
produced in excess of 30 metric tons of any single Schedule 3 chemical
during the previous calendar year. Form B is optional.
(2) Annual declaration on anticipated activities. You must complete
the Certification Form, and Forms 3-1 and 3-3 if you anticipate that
you will produce at one or more plants on your plant site in excess of
30 metric tons of any single Schedule 3 chemical in the next calendar
year.
(c) Quantities to be declared. (1) Production of a Schedule 3
chemical in excess of 30 metric tons. If your plant site is subject to
the declaration requirements of paragraph (a) of this section, you must
declare the range within which the production at your plant site falls
(30 to 200 metric tons, 200 to 1,000 metric tons, etc.) as specified on
Form 3-3. When specifying the range of production for your plant site,
you must aggregate the production quantities of all plants on the plant
site that produced the Schedule 3 chemical in amounts greater than 30
metric tons. Do not aggregate amounts of production from plants on the
plant site that did not individually produce a Schedule 3 chemical in
amounts greater than 30 metric tons. You must complete a separate Form
3-3 for each Schedule 3 chemical for which production at your plant
site exceeds 30 metric tons.
(2) Rounding. To determine the production range into which your
plant site falls, add all the production of the declared Schedule 3
chemical during the calendar year from all plants on your plant site
that produced the Schedule 3 chemical in amounts exceeding 30 metric
tons, and round to the nearest ten metric tons.
(d) ``Declared'' Schedule 3 plant site. A plant site that submitted
a declaration pursuant to paragraph (a)(1) of this section is a
``declared'' Schedule 3 plant site.
(e) Routine inspections of declared Schedule 3 plant sites. A
``declared'' Schedule 3 plant site is subject to routine inspection by
the Organization for the Prohibition of Chemical Weapons (see part 716
of the CWCR) if:
(1) The declared plants on your plant site produced in excess of
200 metric tons aggregate of any Schedule 3 chemical during the
previous calendar year; or
(2) You anticipate that the declared plants on your plant site will
produce in excess of 200 metric tons aggregate of any Schedule 3
chemical during the next calendar year.
Sec. 714.2 Annual reporting requirements for exports and imports in
excess of 30 metric tons of Schedule 3 chemicals.
(a) Any person subject to the CWCR that exported from or imported
into the United States in excess of 30 metric tons of any single
Schedule 3 chemical during the previous calendar year has a reporting
requirement under this section.
(1) Annual report on exports and imports. Declared plant sites,
undeclared plant sites, trading companies, or any other person subject
to the CWCR that exported from or imported into the United States in
excess of 30 metric tons of any single Schedule 3 chemical during the
previous calendar year must submit an annual report on exports and
imports.
Note 1 to Sec. 714.2(a)(1): Declared and undeclared plant sites
must count, for reporting purposes, all exports from and imports to
the entire plant site, not only from or to individual plants on the
plant site.
Note 2 to Sec. 714.2(a)(1): The U.S. Government will not submit
to the OPCW company-specific information relating to the export or
import of Schedule 3 chemicals contained in reports. The U.S.
Government will add all export and import information contained in
reports to establish the U.S. national aggregate declaration on
exports and imports.
(2) Mixtures containing a Schedule 3 chemical. The quantity of a
Schedule 3 chemical contained in a mixture must be counted for
reporting an export or import only if the concentration of the Schedule
3 chemical in the mixture is 80% or more by volume or by weight,
whichever yields the lesser percent. For reporting purposes, only count
the weight of the Schedule 3 chemical in the mixture, not the entire
weight of the mixture.
Note to Sec. 714.2(a)(2): The ``80% and above'' mixtures rule
applies only for reporting purposes. This rule does not apply for
purposes of determining whether the export of your mixture to a non-
State Party requires an End-Use Certificate or for determining
whether you need an export license from BIS (see 15 CFR 742.2,
742.18 and 745.2 of the Export Administration Regulations) or from
the Department of State (see the International Traffic in Arms
Regulations (22 CFR parts 120 through 130)).
(b) Types of forms to be used.--(1) Declared Schedule 3 plant
sites. (i) If your plant site is declared for production of a Schedule
3 chemical (and has completed questions 3-3.1 and 3-3.2 on Form 3-3)
and you also exported from or imported to your plant site in excess of
30 metric tons of that same Schedule 3 chemical, you must report the
export or import by either:
(A) Completing question 3-3.3 on Form 3-3 on your declaration for
that same Schedule 3 chemical; or
(B) Submitting, separately from your declaration, a Certification
Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be
reported, completing only question 3-3.3. Attach Form A, as
appropriate; Form B is optional.
(ii) If your plant site is declared for production of a Schedule 3
chemical and you exported or imported in excess of 30 metric tons of a
different Schedule 3 chemical, you must report the export or import by
either:
(A) Submitting, along with your declaration, a Form 3-3 for each
Schedule 3 chemical to be reported, completing only question 3-3.3.
Attach Form A, as appropriate; Form B is optional; or
(B) Submitting, separately from your declaration, a Certification
Form, Form 3-1 and a Form 3.3 for each Schedule 3 chemical to be
reported, completing only question 3-3.3. Attach Form A, as
appropriate; Form B is optional.
(2) If you are an undeclared plant site, a trading company, or any
other person subject to the CWCR, you must submit a Certification Form,
Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported,
completing only question 3-3.3. Attach Form A, as appropriate; Form B
is optional.
(c) Quantities to be reported--(1) Calculations. If you exported
from or imported to your plant site or trading company more than 30
metric tons of a Schedule 3 chemical in the previous calendar year, you
must report all exports and imports of that chemical by country of
destination or country of origin, respectively, and indicate the total
amount exported to or imported from each country.
(2) Rounding. For purposes of reporting exports and imports of a
Schedule 3 chemical, you must total all exports and imports per
calendar year
[[Page 24949]]
per recipient or source and then round to the nearest 0.1 metric tons.
Note to Sec. 714.2(c): Under the Convention, the United States
is obligated to provide the OPCW a national aggregate annual
declaration of the quantities of each Schedule 3 chemical exported
and imported, with a quantitative breakdown for each country or
destination involved. The U.S. Government will not submit your
company-specific information relating to the export or import of a
Schedule 3 chemical reported under this Sec. 714.2. The U.S.
Government will add all export and import information submitted by
various facilities under this section to produce a national
aggregate annual declaration of destination-by-destination trade for
each Schedule 3 chemical.
Sec. 714.3 Advance declaration requirements for additionally planned
production of Schedule 3 chemicals.
(a) Declaration requirements. (1) You must declare additionally
planned production of Schedule 3 chemicals after the annual declaration
on anticipated activities for the next calendar year has been delivered
to BIS if:
(i) You plan that a previously undeclared plant on your plant site
under Sec. 714.1(a)(1)(ii) of the CWCR will produce a Schedule 3
chemical above the declaration threshold;
(ii) You plan to produce at a plant declared under Sec.
714.1(a)(1)(ii) of the CWCR an additional Schedule 3 chemical above the
declaration threshold;
(iii) You plan to increase the production of a Schedule 3 chemical
by declared plants on your plant site from the amount exceeding the
applicable declaration threshold to an amount exceeding the applicable
inspection threshold (see Sec. 716.1(b)(3) of the CWCR); or
(iv) You plan to increase the aggregate production of a Schedule 3
chemical at a declared plant site to an amount above the upper limit of
the range previously declared under Sec. 714.1(a)(1)(ii) of the CWCR.
(2) If you must submit a declaration on additionally planned
activities because you plan to engage in any of the activities listed
in paragraphs (a)(1)(i) through (iv) of this section, you also should
declare any changes to the anticipated purposes of production or
product group codes. You do not have to submit a declaration on
additionally planned activities if you are only changing your purposes
of production or product group codes.
(b) Declaration forms to be used. If you are required to declare
additionally planned activities pursuant to paragraph (a) of this
section, you must complete the Certification Form and Forms 3-1, 3-2,
and 3-3 as appropriate. Such forms are due to BIS at least 15 days in
advance of the beginning of the additional or new activity.
Sec. 714.4 Amended declaration or report.
In order for BIS to maintain accurate information on previously
submitted plant site declarations, including information necessary to
facilitate inspection notifications and activities or to communicate
declaration or reporting requirements, amended declarations or reports
will be required under the following circumstances described in this
section. This section applies only to annual declarations on past
activities and annual reports on exports and imports submitted for the
previous calendar year or annual declarations on anticipated activities
covering the current calendar year, unless specified otherwise in a
final inspection report.
(a) Changes to information that directly affects a declared plant
site's Annual Declaration of Past Activities (ADPA) or Combined Annual
Declaration or Report which was previously submitted to BIS. You must
submit an amended declaration or report to BIS within 15 days of
determining that there has been a change in any of the following
information that you have previously declared or reported:
(1) Types of Schedule 3 chemicals produced (e.g., production of
additional Schedule 3 chemicals);
(2) Production range (e.g., from 30 to 200 metric tons to above 200
to 1000 metric tons) of Schedule 3 chemicals;
(3) Purpose of Schedule 3 chemical production (e.g., additional
end-uses); or
(4) Addition of new plant(s) for production of Schedule 3
chemicals.
(b) Changes to export or import information submitted in Annual
Reports on Exports and Imports from undeclared plant sites, trading
companies and U.S. persons. You must submit an amended report or
amended combined declaration and report to BIS within 15 days of any
change in the following export or import information:
(1) Types of Schedule 3 chemicals exported or imported (additional
Schedule 3 chemicals);
(2) Quantities of Schedule 3 chemicals exported or imported;
(3) Destination(s) of Schedule 3 chemicals exported; and
(4) Source(s) of Schedule 3 chemicals imported.
(c) Changes to company and plant site information submitted in the
ADPA, the Annual Declaration of Anticipated Activities, and the Annual
Report on Exports and Imports--(1) Internal company changes. You must
submit an amended declaration or report to BIS within 30 days of any
change in the following information:
(i) Name of declaration/report point of contact (D-POC), including
telephone number, facsimile number, and e-mail address;
(ii) Name(s) of inspection point(s) of contact (I-POC), including
telephone number, and facsimile number, and e-mail address(es);
(iii) Company name (see 714.4(c)(2) for other company changes);
(iv) Company mailing address;
(v) Plant site name;
(vi) Plant site owner, including telephone number and facsimile
number;
(vii) Plant site operator, including telephone number and facsimile
number;
(viii) Plant name;
(xi) Plant owner, including telephone number and facsimile number;
and
(x) Plant operator, including telephone number and facsimile
number.
(2) Change in ownership of company, plant site, or plant. If you
sold or purchased a declared company, plant site or plant, you must
submit an amended declaration or report to BIS, either before the
effective date of the change or within 30 days after the effective date
of the change. The amended declaration or report must include the
following information.
(i) Information that must be submitted to BIS by a company selling
a declared plant site:
(A) Name of seller (i.e., name of the company selling a declared
plant site);
(B) Name of declared plant site and U.S. Code Number for that plant
site;
(C) Name of purchaser (i.e., name of company purchasing a declared
plant site) and identity of the new owner and contact person for the
purchaser, if known;
(D) Date of ownership transfer;
(E) Additional (e.g., unique) details on the sale of the plant site
relevant to ownership or operational control over any portion of the
declared plant site (e.g., whether the entire plant site or only a
portion of the declared plant site has been sold to a new owner); and
(F) Details regarding whether the new owner will submit the
declaration or report for the entire calendar year during which the
ownership change occurred, or whether the previous owner and the new
owner will submit separate declarations or reports for the periods of
the calendar year during which each owned the plant site or trading
company.
(1) If the new owner is responsible for submitting the declaration
or report for
[[Page 24950]]
the entire current year, it must have in its possession the records for
the period of the year during which the previous owner owned the plant
site or trading company.
(2) If the previous owner and new owner will submit separate
declarations or reports for the periods of the calendar year during
which each owned the plant site or trading company, and, at the time of
transfer of ownership, the previous owner's activities are not above
the declaration or reporting thresholds set forth in Sec. 714.1(a)(1)
and Sec. 714.2(a)(1) of the CWCR, respectively, the previous owner and
the new owner must still submit declarations to BIS with the below
threshold quantities indicated.
(3) If the part-year declarations submitted by the previous owner
and the new owner are not, when combined, above the declaration
threshold set forth in Sec. 714.1(a)(1) of the CWCR, BIS will return
the declarations without action as set forth in Sec. 714.5 of the
CWCR.
(4) If part-year reports are not, when combined, above the
reporting threshold set forth in Sec. 714.2(a)(1) of the CWCR, BIS
will return the reports without action as set forth in Sec. 714.5 of
the CWCR.
(ii) Information that must be submitted to BIS by the company
purchasing a declared plant site:
(A) Name of purchaser (i.e., name of individual or company
purchasing a declared plant site);
(B) Mailing address of purchaser;
(C) Name of declaration point of contact (D-POC) for the purchaser,
including telephone number, facsimile number, and e-mail address;
(D) Name(s) of inspection point(s)s of contact (I-POC) for the
purchaser, including telephone number, facsimile number, and e-mail
address(es);
(E) Name of the declared plant site and U.S. Code Number for that
plant site;
(F) Location of the declared plant site;
(G) Operator of the declared plant site, including telephone
number, and facsimile number;
(H) Name of plant where Schedule 3 production exceeds the
declaration threshold;
(I) Owner of plant where Schedule 3 production exceeds the
declaration threshold;
(J) Operator of plant where Schedule 3 production exceeds the
declaration threshold; and
(K) Details on the next declaration or report submission on whether
the new owner will submit the declaration or report for the entire
calendar year during which the ownership change occurred, or whether
the previous owner and new owner will submit separate declarations or
reports for the periods of the calendar year during which each owned
the plant site or trading company.
Note 1 to Sec. 714.4(c): You must submit an amendment to your
most recently submitted declaration or report for declaring changes
to internal company information (e.g., company name change) or
changes in ownership of a facility or trading company that have
occurred since the submission of this declaration or report. BIS
will process the amendment to ensure current information is on file
regarding the facility or trading company (e.g., for inspection
notifications and correspondence) and will also forward the amended
declaration to the OPCW to ensure that they also have current
information on file regarding your facility or trading company.
Note 2 to Sec. 714.4(c): You may notify BIS of change in
ownership via a letter to the address given in Sec. 711.6 of the
CWCR. If you are submitting an amended declaration or report, use
Form B to address details regarding the sale of the declared plant
site or trading company.
Note 3 to Sec. 714.4(c): For ownership changes, the declared
plant site or trading company will maintain its original U.S. Code
Number, unless the plant site or trading company is sold to multiple
owners, at which time BIS will assign new U.S. Code Numbers.
(d) Inspection-related amendments. If, following the completion of
an inspection (see parts 716 and 717 of the CWCR), you are required to
submit an amended declaration based on the final inspection report, BIS
will notify you in writing of the information to be amended pursuant to
Sec. Sec. 716.10 and 717.5(b) of the CWCR. Amended declarations must
be submitted to BIS no later than 45 days following your receipt of
BIS's post-inspection letter.
(e) Non-substantive changes. If, subsequent to the submission of
your declaration or report to BIS, you discover one or more non-
substantive typographical errors in your declaration or report, you are
not required to submit an amended declaration or report to BIS.
Instead, you may correct these errors in a subsequent declaration or
report.
(f) Documentation required for amended declarations or reports. If
you are required to submit an amended declaration or report to BIS
pursuant to paragraph (a), (b), (c), or (d) of this section, you must
submit either:
(1) A letter containing all of the corrected information required,
in accordance with the provisions of this section, to amend your
declaration or report; or
(2) Both of the following:
(i) A new Certification Form; and
(ii) The specific forms required for the declaration or report type
being amended (e.g., annual declaration on past activities) containing
the corrected information required, in accordance with the requirements
of this section, to amend your declaration or report.
Sec. 714.5 Declarations and reports returned without action by BIS.
If you submit a declaration or report and BIS determines that the
information contained therein is not required by the CWCR, BIS will
return the original declaration or report to you, without action,
accompanied by a letter explaining BIS's decision. In order to protect
your confidential business information, BIS will not maintain a copy of
any declaration or report that is returned without action. However, BIS
will maintain a copy of the RWA letter.
Sec. 714.6 Deadlines for submission of Schedule 3 declarations,
reports, and amendments.
Declarations, reports, and amendments required under this part must
be postmarked by the appropriate date identified in Supplement No. 2 to
this part 714 of the CWCR. Required declarations, reports, and
amendments include:
(a) Annual declaration on past activities (production of Schedule 3
chemicals during the previous calendar year);
(b) Annual report on exports and imports of Schedule 3 chemicals
from plant sites, trading companies, and other persons subject to the
CWCR (during the previous calendar year);
(c) Combined declaration and report (production of Schedule 3
chemicals, as well as exports or imports of the same or different
Schedule 3 chemicals, by a declared plant site during the previous
calendar year);
(d) Annual declaration on anticipated activities (anticipated
production of Schedule 3 chemicals during the next calendar year);
(e) Declaration on Additionally Planned Activities (additionally
planned production of Schedule 3 chemicals); and
(f) Amended declaration and report, including combined declaration
and report.
[[Page 24951]]
Supplement No. 1 to Part 714.--Schedule 3 Chemicals
------------------------------------------------------------------------
(CAS registry
number)
------------------------------------------------------------------------
A. Toxic chemicals:
(1) Phosgene: Carbonyl dichloride.................. (75-44-5)
(2) Cyanogen chloride.............................. (506-77-4)
(3) Hydrogen cyanide............................... (74-90-8)
(4) Chloropicrin: Trichloronitromethane............ (76-06-2)
B. Precursors:
(5) Phosphorus oxychloride......................... (10025-87-3)
(6) Phosphorus trichloride......................... (7719-12-2)
(7) Phosphorus pentachloride....................... (10026-13-8)
(8) Trimethyl phosphite............................ (121-45-9)
(9) Triethyl phosphite............................. (122-52-1)
(10) Dimethyl phosphite............................ (868-85-9)
(11) Diethyl phosphite............................. (762-04-9)
(12) Sulfur monochloride........................... (10025-67-9)
(13) Sulfur dichloride............................. (10545-99-0)
(14) Thionyl chloride.............................. (7719-09-7)
(15) Ethyldiethanolamine........................... (139-87-7)
(16) Methyldiethanolamine.......................... (105-59-9)
(17) Triethanolamine............................... (102-71-6)
------------------------------------------------------------------------
Note to Supplement No. 1: Refer to Supplement No. 1 to part 774 of the
Export Administration Regulations (the Commerce Control List), ECCNs
1C350 and 1C355, for export controls related to Schedule 3 chemicals.
Supplement No. 2 to Part 714.--Deadlines for Submission of Schedule 3
Declarations, Reports, and Amendments
------------------------------------------------------------------------
Declarations Applicable forms Due dates
------------------------------------------------------------------------
Annual Declaration on Past Certification, 3-1, February 28 of the
Activities (previous 3-2, 3-3 (if also year following any
calendar year)--Declared exported or calendar year in
plant site (production). imported), A (as which the
appropriate), B production of a
(optional). Schedule 3 chemical
exceeded the
declaration
threshold in Sec.
714.1(a)(1)(i) of
the CWCR.
Annual Report on Exports and Certification, 3-1, February 28 of the
Imports (previous calendar 3-3.3 and 3-3.4, A year following any
year)--Plant site, trading (as appropriate), B calendar year in
company, other persons. (optional). which exports or
imports of a
Schedule 3 chemical
by a plant site,
trading company, or
other person
subject to the CWCR
(as described in
Sec. 714.2(a) of
the CWCR) exceeded
the threshold in
Sec. 714.2(a) of
the CWCR.
Combined Declaration & Certification, 3-1, February 28 of the
Report. 3-2, and 3-3, A (as year following any
appropriate), B calendar year in
(optional). which the
production of a
Schedule 3 chemical
and the export or
import of the same
or a different
Schedule 3 chemical
by a declared plant
site exceeded the
applicable
thresholds in Sec.
Sec.
714.1(a)(1)(i) and
714.2(a),
respectively, of
the CWCR.
Annual Declaration on Certification, 3-1, September 3 of the
Anticipated Activities 3-2, 3-3.2, A (as year prior to any
(Production) (next calendar appropriate), B calendar year in
year). (optional). which Schedule 3
production is
anticipated to
occur.
Declaration on Additionally Certification, 3-1, 15 calendar days
Planned Activities. 3-3.1 and 3-3.2, A before the
(as appropriate), B additionally
(optional). planned activity
begins.
Amended Declaration......... Certification, 3-1,
3-2, 3-3.
--Declaration .................... --15 calendar days
information. after change in
information.
--Company information... .................... --30 calendar days
after change in
information.
--Post-inspection letter .................... --45 calendar days
after receipt of
letter.
Amended Report.............. Certification, 3-1, --15 calendar days
3-2, 3-3, A (as after change in
appropriate), B information.
(optional).
Amended Combined Declaration Certification, 3-1, --15 calendar days
& Report. 3-2, 3-3, A (as after change in
appropriate), B information.
(optional).
------------------------------------------------------------------------
PART 715--ACTIVITIES INVOLVING UNSCHEDULED DISCRETE ORGANIC
CHEMICALS (UDOCs)
Sec.
715.1 Annual declaration requirements for production by synthesis of
unscheduled discrete organic chemicals (UDOCs).
715.2 Amended declaration.
715.3 Declarations returned without action by BIS.
715.4 Deadlines for submitting UDOC declarations, no changes
authorization forms, and amendments.
Supplement No. 1 to Part 715--Definition of an Unscheduled Discrete
Organic Chemical
[[Page 24952]]
Supplement No. 2 to Part 715--Examples of Unscheduled Discrete
Organic Chemicals (UDOCS) and UDOC Production
Supplement No. 3 to Part 715--Deadlines for Submission of
Declarations, No Changes Authorization Forms, and Amendments for
Unscheduled Discrete Organic Chemical (UDOC) Facilities
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
Sec. 715.1 Annual declaration requirements for production by
synthesis of unscheduled discrete organic chemicals (UDOCs).
(a) Declaration of production by synthesis of UDOCs for purposes
not prohibited by the CWC.--(1) Production quantities that trigger the
declaration requirement. See Sec. 711.6 of the CWCR for information on
obtaining the forms you will need to declare production of unscheduled
discrete organic chemicals. You must complete the forms specified in
paragraph (b) of this section if your plant site produced by synthesis:
(i) In excess of 200 metric tons aggregate of all UDOCs (including
all UDOCs containing the elements phosphorus, sulfur or fluorine,
referred to as ``PSF chemicals'') during the previous calendar year; or
(ii) In excess of 30 metric tons of an individual PSF chemical at
one or more plants at your plant site during the previous calendar
year.
Note to Sec. 715.1(a)(1)(ii): In calculating the aggregate
production quantity of each individual PSF chemical produced by a
PSF plant, do not include production of a PSF chemical that was
produced in quantities less than 30 metric tons. Include only
production quantities from those PSF plants that produced more than
30 metric tons of an individual PSF chemical.
(2) UDOCs subject to declaration requirements under this part. (i)
UDOCs subject to declaration requirements under this part are those
produced by synthesis that have been isolated for:
(A) Use; or
(B) Sale as a specific end product.
(ii) Exemptions. (A) Polymers and oligomers consisting of two or
more repeating units;
(B) Chemicals and chemical mixtures produced through a biological
or biomediated process;
(C) Products from the refining of crude oil, including sulfur-
containing crude oil;
(D) Metal carbides (i.e., chemicals consisting only of metal and
carbon); and
(E) UDOCs produced by synthesis that are ingredients or by-products
in foods designed for consumption by humans and/or animals.
Note to Sec. 715.1(a)(2): See Supplement No. 2 to this part 715
for examples of UDOCs subject to the declaration requirements of
this part, and for examples of activities that are not considered
production by synthesis.
(3) Exemptions for UDOC plant sites. UDOC plant sites that
exclusively produced hydrocarbons or explosives are exempt from UDOC
declaration requirements. For the purposes of this part, the following
definitions apply for hydrocarbons and explosives:
(i) Hydrocarbon means any organic compound that contains only
carbon and hydrogen; and
(ii) Explosive means a chemical (or a mixture of chemicals) that is
included in Class 1 of the United Nations Organization hazard
classification system.
(b) Types of declaration forms to be used.--(1) Annual declaration
on past activities. You must complete the Certification Form and Form
UDOC (consisting of two pages), unless there are no changes from the
previous year's declaration and you submit a No Changes Authorization
Form pursuant to paragraph (b)(2) of this section. Attach Form A as
appropriate; Form B is optional.
(2) No Changes Authorization Form. You may complete the No Changes
Authorization Form if there are no updates or changes to any
information (except the certifying official and dates signed and
submitted) in your plant site's previously submitted annual declaration
on past activities. Your plant site's activities will be declared to
the OPCW and subject to inspection, if applicable, based upon the data
reported in the most recent UDOC Declaration that you submitted to BIS.
Note to Sec. 715.1(b)(2): If, after submitting the No Changes
Authorization Form, you have changes to information, you must submit
a complete amendment to the annual declaration on past activities.
See Sec. 715.2 of the CWCR.
(c) ``Declared'' UDOC plant site. A plant site that submitted a
declaration pursuant to paragraph (a)(1) of this section is a
``declared'' UDOC plant site.
(d) Routine inspections of declared UDOC plant sites. A
``declared'' UDOC plant site is subject to routine inspection by the
Organization for the Prohibition of Chemical Weapons (see part 716 of
the CWCR) if it produced by synthesis more than 200 metric tons
aggregate of UDOCs during the previous calendar year.
Sec. 715.2 Amended declaration.
In order for BIS to maintain accurate information on previously
submitted plant site declarations, including current information
necessary to facilitate inspection notifications and activities or to
communicate declaration requirements, amended declarations will be
required under the following circumstances described in this section.
This section applies only to annual declarations on past activities
submitted for the previous calendar year, unless specified otherwise in
a final inspection report.
(a) Changes to information that directly affects a declared plant
site's Annual Declaration of Past Activities (ADPA) which was
previously submitted to BIS. You must submit an amended declaration to
BIS within 15 days of any change in the following information:
(1) Product group codes for UDOCs produced in quantities exceeding
the applicable declaration threshold specified in Sec. 715.1(a)(1) of
the CWCR;
(2) Approximate number of plants at the declared plant site that
produced any amount of UDOCs (including all PSF chemicals);
(3) Aggregate amount of production (by production range) of UDOCs
produced by all plants at the declared plant site;
(4) Exact number of plants at the declared plant site that
individually produced more than 30 metric tons of a single PSF
chemical; and
(5) Production range of each plant at the declared plant site that
individually produced more than 30 metric tons of a single PSF
chemical.
(b) Changes to company and plant site information submitted in the
ADPA that must be maintained by BIS.--(1) Internal company changes. You
must submit an amended declaration to BIS within 30 days of any change
in the following information:
(i) Name of declaration point of contact (D-POC), including
telephone number, facsimile number, and e-mail address;
(ii) Name(s) of inspection point(s) of contact (I-POC), including
telephone number, facsimile number(s) and e-mail address(es);
(iii) Company name (see 715.2(b)(2) for other company changes);
(iv) Company mailing address;
(v) Plant site name;
(vi) Plant site owner, including telephone number and facsimile
number; and
(vii) Plant site operator, including telephone number and facsimile
number.
(2) Change in ownership of company or plant site. If you sold or
purchased a declared plant site, you must submit an amended declaration
to BIS, either before the effective date of the change or within 30
days after the effective date of
[[Page 24953]]
the change. The amended declaration must include the following
information.
(i) Information that must be submitted to BIS by the company
selling a declared plant site:
(A) Name of seller (i.e., name of company selling a declared plant
site);
(B) Name of declared plant site name and U.S. Code Number for that
plant site;
(C) Name of purchaser (i.e., name of new company purchasing a
declared plant site) and identity of contact person for the purchaser,
if known;
(D) Date of ownership transfer or change;
(E) Additional details on the sale of the declared plant site
relevant to ownership or operational control over any portion of the
declared plant site (e.g., whether the entire plant site or only a
portion of the declared plant site has been sold to a new owner); and
(F) Details regarding whether the new owner will submit the
declaration for the entire calendar year during which the ownership
change occurred, or whether the previous owner and new owner will
submit separate declarations for the periods of the calendar year
during which each owned the plant site.
(1) If the new owner is responsible for submitting the declaration
for the entire current year, it must have in its possession the records
for the period of the year during which the previous owner owned the
plant site.
(2) If the previous owner and new owner will submit separate
declarations for the periods of the calendar year during which each
owned the plant site, and, if at the time of transfer of ownership, the
previous owner's activities are not above the declaration thresholds
set forth in Sec. 715.1(a)(1) of the CWCR, the previous owner and the
new owner must still submit declarations to BIS with the below
threshold quantities indicated.
(3) If the part-year declarations submitted by the previous owner
and the new owner are not, when combined, above the declaration
threshold set forth in Sec. 715.1(a)(1) of the CWCR, BIS will return
the declarations without action as set forth in Sec. 715.3 of the
CWCR.
(ii) Information that must be submitted to BIS by the company
purchasing a declared plant site:
(A) Name of purchaser (i.e., name of individual or company
purchasing a declared plant site);
(B) Mailing address of purchaser;
(C) Name of declaration point of contact (D-POC) for the purchaser,
including telephone number, facsimile number, and e-mail address;
(D) Name(s) of inspection point(s) of contact (I-POC) for the
purchaser, including telephone number(s), facsimile number(s), and e-
mail address(es);
(E) Name of the declared plant site and U.S. Code Number for that
plant site;
(F) Location of the declared plant site;
(G) Name of plant site where the production of UDOCs exceeds the
applicable declaration threshold;
(H) Owner of plant site where the production of UDOCs exceeds the
applicable declaration threshold, including telephone number and
facsimile number;
(I) Operator of plant site where the production of UDOCs exceeds
the applicable declaration threshold, including telephone number and
facsimile number; and
(J) Details on the next declaration or report submission on whether
the new owner will submit the declaration or report for the entire
calendar year during which the ownership change occurred, or whether
the previous owner and new owner will submit separate declarations or
report for the periods of the calendar year during which each owned the
plant site.
Note 1 to Sec. 715.2(b): You must submit an amendment to your
most recently submitted declaration or report for declaring changes
to internal company information (e.g., company name change) or
changes in ownership of a facility or trading company that have
occurred since the submission of this declaration or report. BIS
will process the amendment to ensure current information is on file
regarding the facility or trading company (e.g., for inspection
notifications and correspondence) and will also forward the amended
declaration to the OPCW to ensure that they also have current
information on file regarding your facility or trading company.
Note 2 to Sec. 715.2(b): You may notify BIS of change in
ownership via a letter to the address given in Sec. 711.6 of the
CWCR. If you are submitting an amended declaration, use Form B to
address details regarding the sale of the declared plant site.
Note 3 to Sec. 715.2(b): For ownership changes, the declared
plant site will maintain its original U.S. Code Number, unless the
plant site is sold to multiple owners, at which time BIS will assign
new U.S. Code Numbers.
(c) Inspection-related amendments. If, following completion of an
inspection (see part 716 or 717 of the CWCR), you are required to
submit an amended declaration based on the final inspection report, BIS
will notify you in writing of the information that will be required
pursuant to Sec. Sec. 716.10 and 717.5 of the CWCR. You must submit an
amended declaration to BIS no later than 45 days following your receipt
of BIS's post-inspection letter.
(d) Non-substantive changes. If, subsequent to the submission of
your declaration to BIS, you discover one or more non-substantive
typographical errors in your declaration, you are not required to
submit an amended declaration to BIS. Instead, you may correct these
errors in a subsequent declaration.
(e) Documentation required for amended declarations. If you are
required to submit an amended declaration to BIS pursuant to paragraph
(a), (b), or (c) of this section, you must submit either:
(1) A letter containing all of the corrected information required,
in accordance with the provisions of this section, to amend your
declaration; or
(2) Both of the following:
(i) A new Certification Form; and
(ii) The specific form required for the declaration containing the
corrected information required, in accordance with the requirements of
this section, to amend your declaration.
Sec. 715.3 Declarations returned without action by BIS.
If you submit a declaration and BIS determines that the information
contained therein is not required by the CWCR, BIS will return the
original declaration to you, without action, accompanied by a letter
explaining BIS's decision. In order to protect your confidential
business information, BIS will not maintain a copy of any declaration
that is returned without action. However, BIS will maintain a copy of
the RWA letter.
Sec. 715.4 Deadlines for submitting UDOC declarations, no changes
authorization forms, and amendments.
Declarations, no changes authorization forms, and amendments
required under this part must be postmarked by the appropriate dates
identified in Supplement No. 3 to this part 715 of the CWCR. Required
documents under this part include:
(a) Annual Declaration on Past Activities (UDOC production during
the previous calendar year);
(b) No Changes Authorization Form (may be completed and submitted
to BIS when there are no changes to any information in your plant
site's previously submitted annual declaration on past activities,
except the certifying official and the dates signed and submitted); and
(c) Amended declaration.
[[Page 24954]]
Supplement No. 1 to Part 715--Definition of an Unscheduled Discrete
Organic Chemical
Unscheduled discrete organic chemical means any chemical: (1)
Belonging to the class of chemical compounds consisting of all
compounds of carbon except for its oxides, sulfides and metal
carbonates identifiable by chemical name, by structural formula, if
known, and by Chemical Abstract Service registry number, if
assigned; and (2) that is not contained in the Schedules of
Chemicals (see Supplements No. 1 to parts 712 through 714 of the
CWCR). Unscheduled discrete organic chemicals subject to declaration
under this part are those produced by synthesis that are isolated
for use or sale as a specific end-product.
Note: Carbon oxides consist of chemical compounds that contain
only the elements carbon and oxygen and have the chemical formula
Cx Oy , where x and y denote integers. The two
most common carbon oxides are carbon monoxide (CO) and carbon
dioxide (CO2 ). Carbon sulfides consist of chemical
compounds that contain only the elements carbon and sulfur, and have
the chemical formula Ca Sb , where a and b
denote integers. The most common carbon sulfide is carbon disulfide
(CS2 ). Metal carbonates consist of chemical compounds
that contain a metal (i.e., the Group I Alkalis, Groups II Alkaline
Earths, the Transition Metals, or the elements aluminum, gallium,
indium, thallium, tin, lead, bismuth or polonium), and the elements
carbon and oxygen. Metal carbonates have the chemical formula
Md (CO3 )e , where d and e denote
integers and M represents a metal. Common metal carbonates are
sodium carbonate (Na2 CO3 ) and calcium
carbonate (Ca CO3 ). In addition, metal carbides
or other compounds consisting of only a metal, as described in this
Note, and carbon (e.g., calcium carbide
(Ca C2 )), are exempt from declaration
requirements (see Sec. 715.1(a)(2)(ii)(D) of the CWCR).
Supplement No. 2 to Part 715--Examples of Unscheduled Discrete Organic
Chemicals (UDOCs) and UDOC Production
(1) Examples of UDOCs not subject to declaration include:
(i) UDOCs produced coincidentally as by-products that are not
isolated for use or sale as a specific end product, and are routed
to, or escape from, the waste stream of a stack, incinerator, or
waste treatment system or any other waste stream;
(ii) UDOCs, contained in mixtures, which are produced
coincidentally and not isolated for use or sale as a specific end-
product;
(iii) UDOCs produced by recycling (i.e., involving one of the
processes listed in paragraph (3) of this supplement) of previously
declared UDOCs;
(iv) UDOCs produced by the mixing (i.e., the process of
combining or blending into one mass) of previously declared UDOCs;
and
(v) UDOCs that are intermediates and that are used in a single
or multi-step process to produce another declared UDOC.
(2) Examples of UDOCs that you must declare under part 715 of
the CWCR include, but are not limited to, the following, unless they
are not isolated for use or sale as a specific end product:
(i) Acetophenone (CAS 98-86-2);
(ii) 6-Chloro-2-methyl aniline (CAS 87-63-8);
(iii) 2-Amino-3-hydroxybenzoic acid (CAS 548-93-6); and
(iv) Acetone (CAS 67-64-1).
(3) Examples of activities that are not considered ``production
by synthesis'' under part 715 of the CWCR, which means the end
products resulting from such activities would not be declared under
part 715, are as follows:
(i) Fermentation;
(ii) Extraction;
(iii) Purification;
(iv) Distillation; and
(v) Filtration.
Supplement No. 3 to Part 715.--Deadlines for Submission of Declarations,
No Changes Authorization Forms, and Amendments for Unscheduled Discrete
Organic Chemical (UDOC) Facilities
------------------------------------------------------------------------
Declarations Applicable forms Due dates
------------------------------------------------------------------------
Annual Declaration on Past Certification, UDOC, February 28 of the
Activities (previous A (as appropriate), year following any
calendar year)--Declared B (optional). calendar year in
plant site. which the
production of UDOCs
exceeded the
applicable
declaration
threshold in Sec.
715.1(a)(1) of the
CWCR.
No Changes Authorization No Changes February 28 of the
Form (declaration required, Authorization Form. year following any
but no changes to data calendar year in
contained in previously which the
submitted annual production of UDOCs
declaration on past exceeded the
activities (previous applicable
calendar year)--Declared declaration
plant site. threshold in Sec.
715.1(a)(1) of the
CWCR.
Amended Declaration......... Certification, UDOC, ....................
A (as appropriate),
B (optional).
--Declaration .................... --15 calendar days
information. after change in
information.
--Company information... .................... --30 calendar days
after change in
information.
--Post-inspection letter .................... --45 calendar days
after receipt of
letter.
------------------------------------------------------------------------
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 Consent to inspections; warrants for inspections.
716.4 Scope and conduct of inspections.
716.5 Notification, duration and frequency of inspections.
716.6 Facility agreements.
716.7 Samples.
716.8 On-site monitoring of Schedule 1 facilities.
716.9 Report of inspection-related costs.
716.10 Post-inspection activities.
Supplement No. 1 to Part 716--Notification, Duration, and Frequency
of Inspections
Supplement No. 2 to Part 716--[Reserved]
Supplement No. 3 to Part 716--[Reserved]
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
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). See part 717 of the CWCR for provisions concerning
challenge inspections.
(a) Overview. Each State Party to the CWC, including the United
States, has agreed to allow certain inspections of declared facilities
by inspection teams employed by the Organization for the Prohibition of
Chemical Weapons (OPCW) to ensure that activities are consistent with
obligations under the Convention. BIS is responsible for leading,
hosting and escorting inspections of all facilities subject to the
provisions of the CWCR (see Sec. 710.2 of the CWCR).
[[Page 24955]]
(b) Declared facilities subject to initial and routine
inspections--(1) Schedule 1 facilities. (i) Your declared facility is
subject to inspection if it produced in excess of 100 grams aggregate
of Schedule 1 chemicals in the previous calendar year or anticipates
producing in excess of 100 grams aggregate of Schedule 1 chemicals
during the next calendar year.
(ii) If you are a new Schedule 1 production facility pursuant to
Sec. 712.4 of the CWCR, your facility is subject to an initial
inspection within 200 days of submitting an initial declaration.
Note to Sec. 716.1(b)(1): All Schedule 1 facilities submitting
a declaration are subject to inspection.
(2) Schedule 2 plant sites--(i) Inspection thresholds for Schedule
2 plant sites. Your declared plant site is subject to inspection if at
least one plant on your plant site produced, processed or consumed, in
any of the three previous calendar years, or you anticipate that at
least one plant on your plant site will produce, process or consume in
the next calendar year, any Schedule 2 chemical in excess of the
following:
(A) 10 kg of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule
2, Part A, paragraph 3 in Supplement No. 1 to part 713 of the CWCR);
(B) 1 metric ton of chemical PFIB: 1,1,3,3,3-Pentafluoro-
2(trifluoromethyl)-1-propene or any chemical belonging to the Amiton
family (see Schedule 2, Part A, paragraphs 1 and 2 in Supplement No. 1
to part 713 of the CWCR); or
(C) 10 metric tons of any chemical listed in Schedule 2, Part B
(see Supplement No. 1 to part 713 of the CWCR).
(ii) Initial inspection for new Schedule 2 plant sites. Your
declared plant site is subject to an initial inspection within the
first year after submitting a declaration, if at least one plant on
your plant site produced, processed or consumed in any of the three
previous years, or you anticipate that at least one plant on your plant
site will produce, process or consume in the next calendar year, any
Schedule 2 chemical in excess of the threshold quantities set forth in
paragraphs (b)(2)(i)(A) through (C) of this section.
Note to Sec. 716.1(b)(2): The applicable inspection threshold
for Schedule 2 plant sites is ten times higher than the applicable
declaration threshold. Only declared plant sites, comprising at
least one declared plant that exceeds the applicable inspection
threshold, are subject to inspection.
(3) Schedule 3 plant sites. Your declared plant site is subject to
inspection if the declared plants on your plant site produced during
the previous calendar year, or you anticipate they will produce in the
next calendar year, in excess of 200 metric tons aggregate of any
Schedule 3 chemical.
Note to Sec. 716.1(b)(3): The methodology for determining a
declarable and inspectable plant site is different. A Schedule 3
plant site that submits a declaration is subject to inspection only
if the aggregate production of a Schedule 3 chemical at all declared
plants on the plant site exceeds 200 metric tons.
(4) Unscheduled discrete organic chemical plant sites. Your
declared plant site is subject to inspection if it produced by
synthesis more than 200 metric tons aggregate of unscheduled discrete
organic chemicals (UDOC) during the previous calendar year.
Note 1 to Sec. 716.1(b)(4): You must include amounts of
unscheduled discrete organic chemicals containing phosphorus, sulfur
or fluorine in the calculation of your plant site's aggregate
production of unscheduled discrete organic chemicals.
Note 2 to Sec. 716.1(b)(4): All UDOC plant sites that submit a
declaration based on Sec. 715.1(a)(1)(i) of the CWCR are subject to
a routine inspection.
(c) Responsibilities of the Department of Commerce. As the host and
escort for the international Inspection Team for all inspections of
facilities subject to the provisions of the CWCR under this part, BIS
will:
(1) Lead on-site inspections;
(2) Provide Host Team notification to the facility of an impending
inspection;
(3) Take appropriate action to obtain an administrative warrant in
the event the facility does not consent to the inspection;
(4) Dispatch an advance team to the vicinity of the site to provide
administrative and logistical support for the impending inspection and,
upon request, to assist the facility with inspection preparation;
(5) Escort the Inspection Team on-site throughout the inspection
process;
(6) Assist the Inspection Team with verification activities;
(7) Negotiate the development of a site-specific facility
agreement, if appropriate (see Sec. 716.6); and
(8) Ensure that an inspection adheres to the Convention, the Act
and any warrant issued thereunder, and a site-specific facility
agreement, if concluded.
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. (A) During
initial inspections of declared Schedule 1 facilities, in addition to
the verification activities listed in paragraph (a)(1) of this section,
the Host Team and the Inspection Team will draft site-specific facility
agreements (see Sec. 716.6 of the CWCR) for the conduct of routine
inspections.
(B) For new Schedule 1 production facilities declared pursuant to
Sec. 712.4 of the CWCR, the U.S. National Authority, in coordination
with BIS, will conclude a facility agreement with the OPCW before the
facility begins producing above 100 grams aggregate of Schedule 1
chemicals.
(ii) Routine inspections. During routine inspections of declared
Schedule 1 facilities, the verification activities listed in paragraph
(a)(1) of this section will be carried out pursuant to site-specific
facility agreements (see Sec. 716.6 of the CWCR) developed during the
initial inspections and concluded between the U.S. Government and the
OPCW pursuant to the Convention.
(b) Schedule 2 plant sites--(1) Purposes of inspections. (i) The
general aim of inspections of declared Schedule 2 plant sites is to
verify that activities are in accordance with obligations under the
Convention and consistent with the information provided in
declarations. Particular aims of inspections of declared Schedule 2
plant sites are to verify:
(A) The absence of any Schedule 1 chemical, especially its
production, except in accordance with the provisions of the Convention;
(B) Consistency with declarations of production, processing or
consumption of Schedule 2 chemicals; and
(C) Non-diversion of Schedule 2 chemicals for activities prohibited
under the Convention.
(ii) During initial inspections, Inspection Teams shall collect
information to determine the frequency and intensity of subsequent
inspections by assessing the risk to the object and purpose of the
Convention posed by the relevant chemicals, the characteristics of the
plant site and the nature of the activities carried out there. The
[[Page 24956]]
Inspection Team will take the following criteria into account, inter
alia:
(A) The toxicity of the scheduled chemicals and of the end-products
produced with them, if any;
(B) The quantity of the scheduled chemicals typically stored at the
inspected site;
(C) The quantity of feedstock chemicals for the scheduled chemicals
typically stored at the inspected site;
(D) The production capacity of the Schedule 2 plants; and
(E) The capability and convertibility for initiating production,
storage and filling of toxic chemicals at the inspected site.
(2) Types of inspections--(i) Initial inspections. During initial
inspections of declared Schedule 2 plant sites, in addition to the
verification activities listed in paragraph (b)(1) of this section, the
Host Team and the Inspection Team will generally draft site-specific
facility agreements for the conduct of routine inspections (see Sec.
716.6 of the CWCR).
(ii) Routine inspections. During routine inspections of declared
Schedule 2 plant sites, the verification activities listed in paragraph
(b)(1) of this section will be carried out pursuant to any appropriate
site-specific facility agreements developed during the initial
inspections (see Sec. 716.6 of the CWCR), and concluded between the
U.S. Government and the OPCW pursuant to the Convention and the Act.
(c) Schedule 3 plant sites--(1) Purposes of inspections. The
general aim of inspections of declared Schedule 3 plant sites is to
verify that activities are consistent with the information provided in
declarations. The particular aim of inspections is to verify the
absence of any Schedule 1 chemical, especially its production, except
in accordance with the Convention.
(2) Routine inspections. During routine inspections of declared
Schedule 3 plant sites, in addition to the verification activities
listed in paragraph (c)(1) of this section, the Host Team and the
Inspection Team may draft site-specific facility agreements for the
conduct of subsequent routine inspections (see Sec. 716.6 of the
CWCR). Although the Convention does not require facility agreements for
declared Schedule 3 plant sites, the owner, operator, occupant or agent
in charge of a plant site may request one. The Host Team will not seek
a facility agreement if the owner, operator, occupant or agent in
charge of the plant site does not request one. Subsequent routine
inspections will be carried out pursuant to site-specific facility
agreements, if applicable.
(d) Unscheduled discrete organic chemical plant sites--(1) Purposes
of inspections. The general aim of inspections of declared UDOC plant
sites is to verify that activities are consistent with the information
provided in declarations. The particular aim of inspections is to
verify the absence of any Schedule 1 chemical, especially its
production, except in accordance with the Convention.
(2) Routine inspections. During routine inspections of declared
UDOC plant sites, in addition to the verification activities listed in
paragraph (d)(1) of this section, the Host Team and the Inspection Team
may develop draft site-specific facility agreements for the conduct of
subsequent routine inspections (see Sec. 716.6 of the CWCR). Although
the Convention does not require facility agreements for declared UDOC
plant sites, the owner, operator, occupant or agent in charge of a
plant site may request one. The Host Team will not seek a facility
agreement if the owner, operator, occupant or agent in charge of the
plant site does not request one. Subsequent routine inspections will be
carried out pursuant to site-specific facility agreements, if
applicable.
Sec. 716.3 Consent to inspections; warrants for inspections.
(a) The owner, operator, occupant or agent in charge of a facility
may consent to an initial or routine inspection. The individual giving
consent on behalf of the facility represents that he or she has the
authority to make this decision for the facility.
(b) In instances where consent is not provided by the owner,
operator, occupant or agent in charge for an initial or routine
inspection, BIS will seek administrative warrants as provided by the
Act.
Sec. 716.4 Scope and conduct of inspections.
(a) General. Each inspection shall be limited to the purposes
described in Sec. 716.2 of the CWCR and shall be conducted in the
least intrusive manner, consistent with the effective and timely
accomplishment of its purpose as provided in the Convention.
(b) Scope.--(1) Description of inspections. During inspections, the
Inspection Team:
(i) Will receive a pre-inspection briefing from facility
representatives;
(ii) Will visually inspect the facilities or plants producing
scheduled chemicals or UDOCs, which may include storage areas, feed
lines, reaction vessels and ancillary equipment, control equipment,
associated laboratories, first aid or medical sections, and waste and
effluent handling areas, as necessary to accomplish their inspection;
(iii) May visually inspect other parts or areas of the plant site
to clarify an ambiguity that has arisen during the inspection;
(iv) May take photographs or conduct formal interviews of facility
personnel;
(v) May examine relevant records; and
(vi) May take samples as provided by the Convention, the Act and
consistent with the requirements set forth by the Director of the
United States National Authority, at 22 CFR part 103, and the facility
agreement, if applicable.
(2) Scope of consent. When an owner, operator, occupant, or agent
in charge of a facility consents to an initial or routine inspection,
he or she is consenting to provide access to the Inspection Team and
Host Team to any area of the facility, any item located on the
facility, interviews with facility personnel, and any records necessary
for the Inspection Team to complete its mission pursuant to paragraph
(a) of this section, except for information subject to export control
under ITAR (22 CFR parts 120 through 130) (see paragraph (b)(3) of this
section). When consent is granted for an inspection, the owner,
operator, occupant, or agent in charge agrees to provide the same
degree of access provided for under section 305 of the Act. The
determination of whether the Inspection Team's request to inspect any
area, building, item or record is reasonable is the responsibility of
the Host Team Leader.
(3) ITAR-controlled technology. ITAR-controlled technology shall
not be divulged to the Inspection Team without U.S. Government
authorization (such technology includes, but is not limited to
technical data related to Schedule 1 chemicals or Schedule 2 chemicals
identified in Note 2 to Supplement No. 1 to Part 712 or Note 1 to
Supplement No. 1 to Part 713, respectively, of the CWCR; also see 22
CFR Section 121.1, i.e., the United States Munitions List). Facilities
being inspected are responsible for the identification of ITAR-
controlled technology to the BIS Host Team, if known.
(c) Pre-inspection briefing. Upon arrival of the Inspection Team
and Host Team at the inspection site and before commencement of the
inspection, facility representatives will provide the Inspection Team
and Host Team with a pre-inspection briefing on the facility, the
activities carried out there, safety measures, and administrative and
logistical arrangements necessary for the inspection, which may be
aided with the use of maps and other
[[Page 24957]]
documentation as deemed appropriate by the facility. The time spent for
the briefing will be limited to the minimum necessary and may not
exceed three hours.
(1) The pre-inspection briefing will address:
(i) Facility health and safety issues and requirements, and
associated alarm systems;
(ii) Declared facility activities, business and manufacturing
operations;
(iii) Physical layout;
(iv) Delimitation of declared facility;
(v) Scheduled chemicals on the facility (declared and undeclared);
(vi) Block flow diagram or simplified process flow diagram;
(vii) Plants and units specific to declared operations;
(viii) Administrative and logistic information; and
(ix) Data declaration updates/revisions.
(2) The pre-inspection briefing may also address, inter alia:
(i) Introduction of key facility personnel;
(ii) Management, organization and history;
(iii) Confidential business information concerns;
(iv) Types and location of records/documents;
(v) Draft facility agreement, if applicable; and
(vi) Proposed inspection plan.
(d) Visual plant inspection. The Inspection Team may visually
inspect the declared plant or facility and other areas or parts of the
plant site as agreed by the Host Team Leader after consulting with the
facility representative.
(e) Records review. The facility must provide the Inspection Team
with access to all supporting materials and documentation used by the
facility to prepare declarations and to comply with the CWCR (see
Sec. Sec. 721.1 and 721.2 of the CWCR) and with appropriate
accommodations in which the Inspection Team can review these supporting
materials and documentation. Such access will be provided in
appropriate formats (e.g., paper copies, electronic remote access by
computer, microfilm, or microfiche) through the U.S. Government Host
Team to Inspection Teams during the inspection period or as otherwise
agreed upon by the Inspection Team and Host Team Leader. If a facility
does not have access to records for activities that took place under
previous ownership, because such records were not transferred to the
current owner of the facility by the previous owner (e.g., as part of
the contract involving the sale of the facility), the previous owner
must make such records available to the Host Team for provision to the
Inspection Team in accordance with section 305 of the Act. However, the
current owner of a facility, upon receiving notification of an
inspection (see Sec. 716.5 of the CWCR), is responsible for informing
BIS if the previous owner did not transfer records for activities that
took place under the previous ownership--this will allow BIS to contact
the previous owner of the facility, to arrange for access to such
records, if BIS deems them relevant to the inspection activities.
(f) Effect of facility agreements. Routine inspections at
facilities for which the United States has concluded a facility
agreement with the OPCW will be conducted in accordance with the
facility agreement. The existence of a facility agreement does not in
any way limit the right of the owner, operator, occupant, or agent in
charge of the facility to withhold consent to an inspection request.
(g) Hours of inspections. Consistent with the provisions of the
Convention, the Host Team will ensure, to the extent possible, that
each inspection is commenced, conducted, and concluded during ordinary
working hours, but no inspection shall be prohibited or otherwise
disrupted from commencing, continuing or concluding during other hours.
(h) Health and safety regulations and requirements. In carrying out
their activities, the Inspection Team and Host Team shall observe
federal, state, and local health and safety regulations and health and
safety requirements established at the inspection site, including those
for the protection of controlled environments within a facility and for
personal safety. Such health and safety regulations and requirements
will be set forth in, but will not necessarily be limited to, the
facility agreement, if applicable.
(i) Preliminary findings. Upon completion of an inspection, the
Inspection Team will meet with the Host Team and facility personnel to
review the written preliminary findings of the Inspection Team and to
clarify ambiguities. The Host Team will discuss the preliminary
findings with the facility, and the Host Team Leader will take into
consideration the facility's input when providing official comments on
the preliminary findings to the Inspection Team. This meeting will be
completed not later than 24 hours after the completion of the
inspection.
Sec. 716.5 Notification, duration and frequency of inspections.
(a) Inspection notification.--(1)(i) Content of notice. Inspections
of facilities may be made only upon issuance of written notice by the
United States National Authority (USNA) to the owner and to the
operator, occupant or agent in charge of the premises to be inspected.
BIS will also provide a separate inspection notification to the
inspection point of contact identified in declarations submitted by the
facility. If the United States is unable to provide actual written
notice to the owner and to the operator, occupant or agent in charge,
BIS (or the Federal Bureau of Investigation, if BIS is unable) may post
notice prominently at the facility to be inspected. The notice shall
include all appropriate information provided by the OPCW to the USNA
concerning:
(A) The type of inspection;
(B) The basis for the selection of the facility or location for the
type of inspection sought;
(C) The time and date that the inspection will begin and the period
covered by the inspection; and
(D) The names and titles of the Inspection Team members.
(ii) Consent to inspection. In addition to appropriate information
provided by the OPCW in its notification to the USNA, BIS's inspection
notification will request that the facility indicate whether it will
consent to an inspection, and will state whether an advance team is
available to assist the site in preparation for the inspection. If an
advance team is available, facilities that request advance team
assistance are not required to reimburse the U.S. Government for costs
associated with these activities. If a facility does not agree to
provide consent to an inspection within four hours of receipt of the
inspection notification, BIS will seek an administrative warrant. The
current owner of a facility, upon receiving notification of an
inspection, is also responsible for informing BIS if the previous owner
did not transfer (to the current owner) records for activities that
took place under the previous ownership (see Sec. 716.4(e) of the
CWCR)--this will allow BIS to contact the previous owner of the
facility, to arrange for access to such records, if BIS deems them
relevant to the inspection activities.
(iii) The following table sets forth the notification procedures
for inspection:
[[Page 24958]]
Table to Sec. 716.5(a)(1)
------------------------------------------------------------------------
Activity Agency action Facility action
------------------------------------------------------------------------
(A) OPCW notification (1) U.S. National Acknowledges receipt
inspection. Authority transmits of facsimile.
actual written
notice and
inspection
authorization to
the owner and
operator, occupant,
or agent in charge
via facsimile
within 6 hours.
(2) Upon (A) Indicated
notification from whether it grants
the U.S. National consent.
Authority, BIS (B) May request
immediately advance team
transmits support. No
inspection requirement for
notification via reimbursement of
facsimile to the U.S. Government's
inspection point of services.
contract to
ascertain whether
the facility (i)
grants consent and
(ii) requests
assistance in
preparing for the
inspection. In
absence of consent
within four hours
of facility
receipt, BIS
intends to seek an
administrative
warrant.
(B) Preparation for (1) BIS advance team If advance team
inspection. generally arrives support is
in the vicinity of provided, facility
the facility to be works with the
inspected 1-2 days advance team on
after OPCW inspection-related
notification for issues.
logistical and
administrative
preparations.
(2) If records for The current owner of
activities that the facility must
took place under inform BIS if the
the previous previous owner of
ownership of the the facility did
facility are deemed not transfer (to
relevant to the the current owner)
inspection, BIS records for
will contact the activities that
previous owner of took place under
the facility to the previous
arrange for access ownership.
to any such records
required under the
CWCR that have not
been transferred to
the current owner.
------------------------------------------------------------------------
(2) Timing of notice.--(i) Schedule 1 facilities. For declared
Schedule 1 facilities, the Technical Secretariat will notify the USNA
of an initial inspection not less than 72 hours prior to arrival of the
Inspection Team in the United States, and will notify the USNA of a
routine inspection not less than 24 hours prior to arrival of the
Inspection Team in the United States. The USNA will provide written
notice to the owner and to the operator, occupant or agent in charge of
the premises within six hours of receiving notification from the OPCW
Technical Secretariat or as soon as possible thereafter. BIS will
provide Host Team notice to the inspection point of contact of the
facility as soon as possible after the OPCW notifies the USNA of the
inspection.
(ii) Schedule 2 plant sites. For declared Schedule 2 plant sites,
the Technical Secretariat will notify the USNA of an initial or routine
inspection not less than 48 hours prior to arrival of the Inspection
Team at the plant site to be inspected. The USNA will provide written
notice to the owner and to the operator, occupant or agent in charge of
the premises within six hours of receiving notification from the OPCW
Technical Secretariat or as soon as possible thereafter. BIS will
provide Host Team notice to the inspection point of contact at the
plant site as soon as possible after the OPCW notifies the USNA of the
inspection.
(iii) Schedule 3 and UDOC plant sites. For declared Schedule 3 and
UDOC plant sites, the Technical Secretariat will notify the USNA of a
routine inspection not less than 120 hours prior to arrival of the
Inspection Team at the plant site to be inspected. The USNA will
provide written notice to the owner and to the operator, occupant or
agent in charge of the premises within six hours of receiving
notification from the OPCW Technical Secretariat or as soon as possible
thereafter. BIS will provide Host Team notice to the inspection point
of contact of the plant site as soon as possible after the OPCW
notifies the USNA of the inspection.
(b) Period of inspections.--(1) Schedule 1 facilities. For a
declared Schedule 1 facility, the Convention does not specify a maximum
duration for an initial inspection. The estimated period of routine
inspections will be as stated in the facility agreement, unless
extended by agreement between the Inspection Team and the Host Team
Leader, and will be based on the risk to the object and purpose of the
Convention posed by the quantities of chemicals produced, the
characteristics of the facility and the nature of the activities
carried out there. The Host Team Leader will consult with the inspected
facility on any request for extension of an inspection prior to making
an agreement with the Inspection Team. Activities involving the pre-
inspection briefing and preliminary findings are in addition to
inspection activities. See Sec. 716.4(c) and (i) of the CWCR for a
description of these activities.
(2) Schedule 2 plant sites. For declared Schedule 2 plant sites,
the maximum duration of initial and routine inspections shall be 96
hours, unless extended by agreement between the Inspection Team and the
Host Team Leader. The Host Team Leader will consult with the inspected
plant site on any request for extension of an inspection prior to
making an agreement with the Inspection Team. Activities involving the
pre-inspection briefing and preliminary findings are in addition to
inspection activities. See Sec. 716.4(c) and (i) of the CWCR for a
description of these activities.
(3) Schedule 3 and UDOC plant sites. For declared Schedule 3 or
UDOC plant sites, the maximum duration of routine inspections shall be
24 hours, unless extended by agreement between the Inspection Team and
the Host Team Leader. The Host Team Leader will consult with the
inspected plant site on any request for extension of an inspection
prior to making an agreement with the Inspection Team. Activities
involving the pre-inspection briefing and preliminary findings are in
addition to inspection activities. See Sec. 716.4(c) and (i) of the
CWCR for a description of these activities.
(c) Frequency of inspections. The frequency of inspections is as
follows:
(1) Schedule 1 facilities. As provided by the Convention, the
frequency of inspections at declared Schedule 1 facilities is
determined by the OPCW based on the risk to the object and purpose of
the Convention posed by the
[[Page 24959]]
quantities of chemicals produced, the characteristics of the facility
and the nature of the activities carried out at the facility. The
frequency of inspections will be stated in the facility agreement.
(2) Schedule 2 plant sites. As provided by the Convention and the
Act, the maximum number of inspections at declared Schedule 2 plant
sites is two per calendar year per plant site. The OPCW will determine
the frequency of routine inspections for each declared Schedule 2 plant
site based on the Inspection Team's assessment of the risk to the
object and purpose of the Convention posed by the relevant chemicals,
the characteristics of the plant site, and the nature of the activities
carried out there. The frequency of inspections will be stated in the
facility agreement, if applicable.
(3) Schedule 3 plant sites. As provided by the Convention, no
declared Schedule 3 plant site may receive more than two inspections
per calendar year and the combined number of inspections of Schedule 3
and UDOC plant sites in the United States may not exceed 20 per
calendar year.
(4) UDOC plant sites. As provided by the Convention, no declared
UDOC plant site may receive more than two inspections per calendar year
and the combined number of inspections of Schedule 3 and UDOC plant
sites in the United States may not exceed 20 per calendar year.
Sec. 716.6 Facility agreements.
(a) Description and requirements. A facility agreement is a site-
specific agreement between the U.S. Government and the OPCW. Its
purpose is to define procedures for inspections of a specific declared
facility that is subject to inspection because of the type or amount of
chemicals it produces, processes or consumes.
(1) Schedule 1 facilities. The Convention requires that facility
agreements be concluded between the United States and the OPCW for all
declared Schedule 1 facilities. For new Schedule 1 production
facilities declared pursuant to Sec. 712.4 of the CWCR, the USNA, in
coordination with the Department of Commerce, will conclude a facility
agreement with the OPCW before the facility begins producing above 100
grams aggregate of Schedule 1 chemicals.
(2) Schedule 2 plant sites. The USNA will ensure that such facility
agreements are concluded with the OPCW unless the owner, operator,
occupant or agent in charge of the plant site and the OPCW Technical
Secretariat agree that such a facility agreement is not necessary.
(3) Schedule 3 and UDOC plant sites. If the owner, operator,
occupant or agent in charge of a declared Schedule 3 or UDOC plant site
requests a facility agreement, the USNA will ensure that a facility
agreement for such a plant site is concluded with the OPCW.
(b) Notification; negotiation of draft and final facility
agreements; and conclusion of facility agreements. Prior to the
development of a facility agreement, BIS shall notify the owner,
operator, occupant, or agent in charge of the facility, and if the
owner, operator, occupant or agent in charge so requests, the notified
person may participate in preparations with BIS representatives for the
negotiation of such an agreement. During the initial or routine
inspection of a declared facility, the Inspection Team and the Host
Team will negotiate a draft facility agreement or amendment to a
facility agreement. To the maximum extent practicable consistent with
the Convention, the owner and the operator, occupant or agent in charge
of the facility may observe facility agreement negotiations between the
U.S. Government and OPCW. As a general rule, BIS will consult with the
affected facility on the contents of the agreements and take the
facility's views into consideration during negotiations. BIS will
participate in the negotiation of, and approve, all final facility
agreements with the OPCW. Facilities will be notified of and have the
right to observe final facility agreement negotiations between the
United States and the OPCW to the maximum extent practicable,
consistent with the Convention. Prior to the conclusion of a final
facility agreement, the affected facility will have an opportunity to
comment on the facility agreement. BIS will give consideration to such
comments prior to approving final facility agreements with the OPCW.
The USNA shall ensure that facility agreements for Schedule 1, Schedule
2, Schedule 3 and UDOC facilities are concluded, as appropriate, with
the OPCW in coordination with BIS.
(c) [Reserved]
(d) Further information. For further information about facility
agreements, please write or call: Treaty Compliance Division, Bureau of
Industry and Security, U.S. Department of Commerce, 1555 Wilson
Boulevard, Suite 700, Arlington, VA 22209, Telephone: (703) 605-4400.
Sec. 716.7 Samples.
The owner, operator, occupant or agent in charge of a facility must
provide a sample as provided for in the Convention and the Act and
consistent with requirements set forth by the Director of the United
States National Authority in 22 CFR part 103. Analysis will be
restricted to verifying the absence of undeclared scheduled chemicals,
unless otherwise agreed after consultation with the facility
representative.
Sec. 716.8 On-site monitoring of Schedule 1 facilities.
Declared Schedule 1 facilities are subject to verification by
monitoring with on-site instruments as provided by the Convention. For
facilities subject to the CWCR, however, such monitoring is not
anticipated. The U.S. Government will ensure that any monitoring that
may be requested by the OPCW is carried out pursuant to the Convention
and U.S. law.
Sec. 716.9 Report of inspection-related costs.
Pursuant to section 309(b)(5) of the Act, any facility that has
undergone any inspections pursuant to the CWCR during a given calendar
year must report to BIS within 90 days of an inspection on its total
costs related to that inspection. Although not required, such reports
should identify categories of costs separately if possible, such as
personnel costs (production-line, administrative, legal), costs of
producing records, and costs associated with shutting down chemical
production or processing during inspections, if applicable. This
information should be reported to BIS on company letterhead at the
address given in Sec. 716.6(d) of the CWCR, with the following
notation: ``Attn: Report of inspection-related costs.''
Sec. 716.10 Post-inspection activities.
BIS will forward a copy of the final inspection report to the
inspected facility for their review upon receipt from the OPCW.
Facilities may submit comments on the final inspection report to BIS,
within the time-frame specified by BIS (i.e., at least 7 working days
from receipt of the report), and BIS will consider them, to the extent
possible, when commenting on the final report. BIS will also send
facilities a post-inspection letter detailing the issues that require
follow-up action, e.g., amended declaration requirement (see Sec. Sec.
712.7(d), 713.5(d), 714.4(d), and 715.2(c) of the CWCR), information on
the status of the draft facility agreement, if applicable, and the date
on which the report on inspection-related costs (see Sec. 716.9 of the
CWCR) is due to BIS. ?>
[[Page 24960]]
Supplement No. 1 to Part 716.--Notification, Duration and Frequency of Inspections
----------------------------------------------------------------------------------------------------------------
Unscheduled
Schedule 1 Schedule 2 Schedule 3 discrete organic
chemicals
----------------------------------------------------------------------------------------------------------------
Notice of initial or routine 72 hours prior to 48 hours prior to 120 hours prior to 120 hours prior to
inspection to USNA. arrival of arrival of arrival of arrival of
Inspection Team Inspection Team Inspection Team Inspection Team
at the point of at the plant site. at the plant site. at the plant
entry (initial); site.
24 hours prior to
arrival of
Inspection Team
at the point of
entry (routine).
Duration of inspection.......... As specified in 96 hours.......... 24 hours.......... 24 hours.
facility
agreement.
Maximum number of inspections... Determined by OPCW 2 per calendar 2 per calendar 2 per calendar
based on year per plant year per plant year per plant
characteristics site. site. site.
of facility and
the nature of the
activities
carried out at
the facility.
-------------------------------------------------------------------------------
Notification of challenge 12 hours prior to arrival of inspection team at the point of entry.
inspection to USNA*.
Duration of Challenge 84 hours.
inspection*.
----------------------------------------------------------------------------------------------------------------
* See part 717 of the CWCR.
Supplement Nos. 2-3 to Part 716 [Reserved]
PART 717--CWC CLARIFICATION PROCEDURES (CONSULTATIONS AND CHALLENGE
INSPECTIONS)
Sec.
717.1 Clarification procedures; challenge inspection requests
pursuant to Article IX of the Convention.
717.2 Challenge inspections.
717.3 Samples.
717.4 Report of inspection-related costs.
717.5 Post-inspection activities.
Authority: 22 U.S.C. 6701 et seq., 2681; E.O. 13128, 64 FR
36703, 3 CFR 1999 Comp., p. 199.
Sec. 717.1 Clarification procedures; challenge inspection requests
pursuant to Article IX of the Convention.
(a) Article IX of the Convention sets forth procedures for
clarification, between States Parties, of issues about compliance with
the Convention. States Parties may attempt to resolve such issues
through consultation between themselves or through the Organization for
the Prohibition of Chemical Weapons (OPCW). A State Party may also
request the OPCW to conduct an on-site challenge inspection of any
facility or location in the territory or in any other place under the
jurisdiction or control of any other State Party. Such an on-site
challenge inspection request shall be for the sole purpose of
clarifying and resolving any questions concerning possible non-
compliance with the Convention.
(b) In the event that BIS receives a request for clarification,
pursuant to Article IX of the Convention, concerning possible non-
compliance with the CWC, any person or facility subject to the CWCR
(parts 710 through 729 of this subchapter) that receives an official
written request from BIS for clarification must, within five working
days from receipt of such request, provide BIS with any relevant
information required to respond to the OPCW or the State Party(ies) who
requested clarification under Article IX. BIS will contact the person
or facility subject to the Article IX clarification, as early as
practicable, prior to issuing an official written request for
clarification to the person or facility.
Sec. 717.2 Challenge inspections.
Persons or facilities, other than U.S. Government facilities as
defined in Sec. 710.2(a) of the CWCR, may be subject to a challenge
inspection by the OPCW concerning possible non-compliance with the
requirements of the Convention, irrespective of whether or not they are
required to submit declarations or reports under the CWCR. BIS will
host and escort the international Inspection Team for challenge
inspections in the United States of such persons or facilities.
(a) Consent to challenge inspections; warrants for challenge
inspections. (1) The owner, operator, occupant or agent in charge of a
facility may consent to a challenge inspection. The individual giving
consent on behalf of the facility represents that he or she has the
authority to make this decision for the facility. The facility must
respond to the notice of inspection, which includes within it a request
for consent to the inspection, within four hours of the facility's
receipt of the notice of inspection from BIS.
(2) In instances where the owner, operator, occupant or agent in
charge of a facility does not consent to a challenge inspection, BIS
will assist the Department of Justice in seeking a criminal warrant as
provided by the Act. The existence of a facility agreement does not in
any way limit the right of the operator of the facility to withhold
consent to a challenge inspection request.
(b) Notice of challenge inspection. Challenge inspections may be
made only upon issuance of written notice by the United States National
Authority (USNA) to the owner and to the operator, occupant or agent in
charge of the premises. BIS will provide notice of inspection to the
inspection point of contact at such time that a person or facility has
been clearly established, if possible, and when notification is deemed
appropriate. If the United States is unable to provide actual written
notice to the owner and to the operator, occupant or agent in charge,
BIS (or another appropriate agency, if BIS is unable) may post notice
prominently at the plant, plant site or other facility or location to
be inspected.
(1) Timing. The OPCW will notify the USNA of a challenge inspection
not less than 12 hours before the planned arrival of the Inspection
Team at the U.S. point of entry. Written notice will be provided to the
owner and to the operator, occupant, or agent in charge of the premises
at any appropriate time determined by the USNA after receipt of
notification from the OPCW Technical Secretariat.
(2)(i) Content of notice. The notice of inspection shall include
all appropriate information provided by the OPCW to the United States
National Authority concerning:
[[Page 24961]]
(A) The type of inspection;
(B) The basis for the selection of the facility or locations for
the type of inspection sought;
(C) The time and date that the inspection will begin and the period
covered by the inspection;
(D) The names and titles of the Inspection Team members; and
(E) All appropriate evidence or reasons provided by the requesting
State Party for seeking the inspection.
(ii) In addition to appropriate information provided by the OPCW in
its notification to the USNA, the notice of inspection that BIS
delivers to the facility will request the facility to indicate whether
it will consent to an inspection and will state whether an advance team
is available to assist the site in preparation for the inspection. If
an advance team is available, facilities that request advance team
assistance are not required to reimburse the U.S. Government for costs
associated with these activities. If a facility does not agree to
provide consent to an inspection within four hours of receipt of the
inspection notification, BIS will assist the Department of Justice in
seeking a criminal warrant.
(c) Period of inspection. Challenge inspections will not exceed 84
hours, unless extended by agreement between the Inspection Team and the
Host Team Leader.
(d) Scope and conduct of inspections--(1) General. Each inspection
shall be limited to the purposes described in this section and
conducted in the least intrusive manner, consistent with the effective
and timely accomplishment of its purpose as provided in the Convention.
(2) Scope of inspections. If an owner, operator, occupant, or agent
in charge of a facility consents to a challenge inspection, the
inspection will be conducted under the authority of the Act and in
accordance with the provisions of Article IX and applicable provisions
of the Verification Annex of the Convention. If consent is not granted,
the inspection will be conducted pursuant to the terms of a criminal
warrant issued under the authority of the Act.
(3) Hours of inspections. Consistent with the provisions of the
Convention, the Host Team will ensure, to the extent possible, that
each inspection is commenced, conducted, and concluded during ordinary
working hours, but no inspection shall be prohibited or otherwise
disrupted from commencing, continuing or concluding during other hours.
(4) Health and safety regulations and requirements. In carrying out
their activities, the Inspection Team and Host Team shall observe
federal, state, and local health and safety regulations and health and
safety requirements established at the inspection site, including those
for the protection of controlled environments within a facility and for
personal safety.
(5) Pre-inspection briefing. Upon arrival of the Inspection Team
and the Host Team in the vicinity of the inspection site and before
commencement of the inspection, facility representatives will provide
the Inspection Team and the Host Team with a pre-inspection briefing
concerning the facility, the activities carried out there, safety
measures, and administrative and logistical arrangements necessary for
the inspection, which may be aided with the use of maps and other
documentation as deemed appropriate by the facility. The time spent for
the briefing may not exceed three hours.
Sec. 717.3 Samples.
If requested by the Inspection Team, the owner, operator, occupant
or agent in charge of a facility must provide a sample, as provided for
in the Convention and the Act and consistent with requirements set
forth by the Director of the United States National Authority in 22 CFR
part 103. This may be done by providing a sample, taken in the presence
of the Inspection Team, to the U.S. Host Team leader, who will then
release it to the Inspection Team for analysis. Analysis of the sample
may be restricted to verifying the presence or absence of Schedule 1,
2, or 3 chemicals, or appropriate degradation products, unless agreed
otherwise.
Sec. 717.4 Report of inspection-related costs.
Pursuant to section 309(b)(5) of the Act, any facility that has
undergone any inspections pursuant to the CWCR during a given calendar
year must report to BIS within 90 days of an inspection on its total
costs related to that inspection. Although not required, such reports
should identify categories of costs separately if possible, such as
personnel costs (production-line, administrative, legal), costs of
producing records, and costs associated with shutting down chemical
production or processing during inspections, if applicable. This
information should be reported to BIS on company letterhead at the
address given in Sec. 716.6(d) of the CWCR, with the following
notation: ``AATTN: Report of Inspection-related Costs.''
Sec. 717.5 Post-inspection activities.
BIS will forward a copy of the final inspection report to the
inspected facility for their review upon receipt from the OPCW.
Facilities may submit comments on the final inspection report to BIS,
and BIS will consider them, to the extent possible, when commenting on
the final report. BIS will also send facilities a post-inspection
letter detailing the issues that require follow-up action and the date
on which the report on inspection-related costs (see Sec. 717.4 of the
CWCR) is due to BIS.
PART 718--CONFIDENTIAL BUSINESS INFORMATION
Sec.
718.1 Definition.
718.2 Identification of confidential business information.
718.3 Disclosure of confidential business information.
Supplement No. 1 to Part 718--Confidential Business Information
Declared or Reported
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
Sec. 718.1 Definition.
The Chemical Weapons Convention Implementation Act of 1998 (``the
Act'') defines confidential business information as information
included in categories specifically identified in sections 103(g)(1)
and 304(e)(2) of the Act and other trade secrets as follows:
(a) Financial data;
(b) Sales and marketing data (other than shipment data);
(c) Pricing data;
(d) Personnel data;
(e) Research data;
(f) Patent data;
(g) Data maintained for compliance with environmental or
occupational health and safety regulations;
(h) Data on personnel and vehicles entering and personnel and
personal passenger vehicles exiting the site;
(i) Any chemical structure;
(j) Any plant design, process, technology or operating method;
(k) Any operating requirement, input, or result that identifies any
type or quantity of chemicals used, processed or produced;
(l) Any commercial sale, shipment or use of a chemical; or
(m) Information that qualifies as a trade secret under 5 U.S.C.
552(b)(4) (Freedom of Information Act), provided such trade secret is
obtained from a U.S. person or through the U.S. Government.
718.2 Identification of confidential business information.
(a) General. Certain confidential business information submitted to
BIS
[[Page 24962]]
in declarations and reports does not need to be specifically identified
and marked by the submitter, as described in paragraph (b) of this
section. Other confidential business information submitted to BIS in
declarations and reports and confidential business information provided
to the Host Team during inspections must be identified by the inspected
facility so that the Host Team can arrange appropriate marking and
handling.
(b) Confidential business information contained in declarations and
reports. (1) BIS has identified those data fields on the declaration
and report forms that request ``confidential business information'' as
defined by the Act. These data fields are identified in the table
provided in Supplement No. 1 to this part.
(2) You must specifically identify in a cover letter submitted with
your declaration or report any additional information on a declaration
or report form (i.e., information not provided in one of the data
fields listed in the table included in Supplement No. 1 to this part),
including information provided in attachments to Form A or Form B, that
you believe is confidential business information, as defined by the
Act, and must describe how disclosure would likely result in
competitive harm.
Note to Sec. 718.2(b): BIS has also determined that
descriptions of Schedule 1 facilities submitted with Initial
Declarations as attachments to Form A contain confidential business
information, as defined by the Act.
(c) Confidential business information contained in advance
notifications. Information contained in advance notifications of
exports and imports of Schedule 1 chemicals is not subject to the
confidential business information provisions of the Act. You must
identify information in your advance notifications of Schedule 1
imports that you consider to be privileged and confidential, and
describe how disclosure would likely result in competitive harm. See
Sec. 718.3(b) of the CWCR for provisions on disclosure to the public
of such information by the U.S. Government.
(d) Confidential business information related to inspections
disclosed to, reported to, or otherwise acquired by, the U.S.
Government. (1) During inspections, certain confidential business
information, as defined by the Act, may be disclosed to the Host Team.
Facilities being inspected are responsible for identifying confidential
business information to the Host Team, so that if it is disclosed to
the Inspection Team, appropriate marking and handling can be arranged,
in accordance with the provisions of the Convention (see Sec.
718.3(c)(1)(ii) of the CWCR). Confidential business information not
related to the purpose of an inspection or not necessary for the
accomplishment of an inspection, as determined by the Host Team, may be
removed from sight, shrouded, or otherwise not disclosed.
(2) Before or after inspections, confidential business information
related to an inspection that is contained in any documents or that is
reported to, or otherwise acquired by, the U.S. Government, such as
facility information for pre-inspection briefings, facility agreements,
and inspection reports, must be identified by the facility so that it
may be appropriately marked and handled. If the U.S. Government creates
derivative documents from such documents or reported information, they
will also be marked and handled as confidential business information.
Sec. 718.3 Disclosure of confidential business information.
(a) General. Confidentiality of information will be maintained by
BIS consistent with the non-disclosure provisions of the Act, the
Export Administration Regulations (15 CFR parts 730 through 799), the
International Traffic in Arms Regulations (22 CFR parts 120 through
130), and applicable exemptions under the Freedom of Information Act,
as appropriate.
(b) Disclosure of confidential business information contained in
advance notifications. Information contained in advance notifications
of exports and imports of Schedule 1 chemicals is not subject to the
confidential business information provisions of the Act. Disclosure of
such information will be in accordance with the provisions of the
relevant statutory and regulatory authorities as follows:
(1) Exports of Schedule 1 chemicals. Confidentiality of all
information contained in these advance notifications will be maintained
consistent with the non-disclosure provisions of the Export
Administration Regulations (15 CFR parts 730 through 799), the
International Traffic in Arms Regulations (22 CFR parts 120 through
130), and applicable exemptions under the Freedom of Information Act,
as appropriate; and
(2) Imports of Schedule 1 chemicals. Confidentiality of information
contained in these advance notifications will be maintained pursuant to
applicable exemptions under the Freedom of Information Act.
(c) Disclosure of confidential business information pursuant to
Sec. 404(b) of the Act--(1) Disclosure to the Organization for the
Prohibition of Chemical Weapons (OPCW). (i) As provided by Section
404(b)(1) of the Act, the U.S. Government will disclose or otherwise
provide confidential business information to the Technical Secretariat
of the OPCW or to other States Parties to the Convention, in accordance
with provisions of the Convention, particularly with the provisions of
the Annex on the Protection of Confidential Information
(Confidentiality Annex).
(ii) Convention provisions. (A) The Convention provides that States
Parties may designate information submitted to the Technical
Secretariat as confidential, and requires the OPCW to limit access to,
and prevent disclosure of, information so designated, except that the
OPCW may disclose certain confidential information submitted in
declarations to other States Parties if requested. The OPCW has
developed a classification system whereby States Parties may designate
the information they submit in their declarations as ``restricted,''
``protected,'' or ``highly protected,'' depending on the sensitivity of
the information. Other States Parties are obligated, under the
Convention, to store and restrict access to information which they
receive from the OPCW in accordance with the level of confidentiality
established for that information.
(B) The OPCW Inspection Team members are prohibited, under the
terms of their employment contracts and pursuant to the Confidentiality
Annex of the Convention, from disclosing to any unauthorized persons,
during their employment and for five years after termination of their
employment, any confidential information coming to their knowledge or
into their possession in the performance of their official duties.
(iii) U.S. Government designation of information to the Technical
Secretariat. It is the policy of the U.S. Government to designate all
facility information it provides to the Technical Secretariat in
declarations, reports and Schedule 1 advance notifications as
``protected.'' It is the policy of the U.S. Government to designate
confidential business information that it discloses to Inspection Teams
during inspections as ``protected'' or ``highly protected,'' depending
on the sensitivity of the information. The Technical Secretariat is
responsible for storing and limiting access to any confidential
business information contained in a document according to its
established procedures.
(2) Disclosure to Congress. Section 404(b)(2) of the Act provides
that the U.S. Government must disclose confidential business
information to any committee or subcommittee of Congress with
appropriate jurisdiction upon the
[[Page 24963]]
written request of the chairman or ranking minority member of such
committee or subcommittee. No such committee or subcommittee, and no
member and no staff member of such committee or subcommittee, may
disclose such information or material except as otherwise required or
authorized by law.
(3) Disclosure to other Federal agencies for law enforcement
actions and disclosure in enforcement proceedings under the Act.
Section 404(b)(3) of the Act provides that the U.S. Government must
disclose confidential business information to other Federal agencies
for enforcement of the Act or any other law, and must disclose such
information when relevant in any proceeding under the Act. Disclosure
will be made in such manner as to preserve confidentiality to the
extent practicable without impairing the proceeding. Section 719.14(b)
of the CWCR provides that all hearings will be closed, unless the
Administrative Law Judge for good cause shown determines otherwise.
Section 719.20 of the CWCR provides that parties may request that the
administrative law judge segregate and restrict access to confidential
business information contained in material in the record of an
enforcement proceeding.
(4) Disclosure to the public; national interest determination.
Section 404(c) of the Act provides that confidential business
information, as defined by the Act, that is in the possession of the
U.S. Government, is exempt from public disclosure in response to a
Freedom of Information Act request, except when such disclosure is
determined to be in the national interest.
(i) National interest determination. The United States National
Authority (USNA), in coordination with the CWC interagency group, shall
determine on a case-by-case basis if disclosure of confidential
business information in response to a Freedom of Information Act
request is in the national interest.
(ii) Notification of intent to disclose pursuant to a national
interest determination. The Act provides for notification to the
affected person of intent to disclose confidential business information
based on the national interest, unless such notification of intent to
disclose is contrary to national security or law enforcement needs. If,
after coordination with the agencies that constitute the CWC
interagency group, the USNA does not determine that such notification
of intent to disclose is contrary to national security or law
enforcement needs, the USNA will notify the person that submitted the
information and the person to whom the information pertains of the
intent to disclose the information.
Supplement No. 1 to Part 718.--Confidential Business Information
Declared or Reported *
------------------------------------------------------------------------
Fields containing
confidential business
information
------------------------------------------------------------------------
Schedule 1 Forms:
Certification 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.
Form 1-4................................ All fields.
Schedule 2 Forms:
Certification Form...................... 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.
FORMS A and B and attachments (all Case-by-case; must be
Schedules and UDOCs). identified by submitter.
------------------------------------------------------------------------
* This table lists those data fields on the Declaration and Report Forms
that request ``confidential business information'' (CBI) as defined by
the Act (sections 103(g) and 304(e)(2)). As provided by section 404(a)
of the Act, CBI is exempt from disclosure in response to a Freedom of
Information Act (FOIA) request under sections 552(b)(3) and 552(b)(4)
(5 U.S.C.A. 552(b)(3)-(4)), unless a determination is made, pursuant
to section 404(c) of the Act, that such disclosure is in the national
interest. Other FOIA exemptions to disclosure may also apply. You must
identify CBI provided in Form A and/or Form B attachments, and provide
the reasons supporting your claim of confidentiality, except that
Schedule 1 facility technical descriptions submitted with initial
declarations are always considered to include CBI. If you believe that
information you are submitting in a data field marked ``none'' in the
Table is CBI, as defined by the Act, you must identify the specific
information and provide the reasons supporting your claim of
confidentiality in a cover letter.
PART 719--ENFORCEMENT
Sec.
719.1 Scope and definitions.
719.2 Violations of the Act subject to administrative and criminal
enforcement proceedings.
719.3 Violations of the IEEPA subject to judicial enforcement
proceedings.
719.4 Violations and sanctions under the Act not subject to
proceedings under the CWCR.
719.5 Initiation of administrative proceedings.
719.6 Request for hearing and answer.
719.7 Representation.
719.8 Filing and service of papers other than the NOVA.
719.9 Summary decision.
719.10 Discovery.
719.11 Subpoenas.
719.12 Matters protected against disclosure.
719.13 Prehearing conference.
719.14 Hearings.
719.15 Procedural stipulations.
719.16 Extension of time.
719.17 Post-hearing submissions.
719.18 Decisions.
719.19 Settlement.
719.20 Record for decision.
719.21 Payment of final assessment.
719.22 Reporting a violation.
Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR 1994, Comp., p.
950; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.
Sec. 719.1 Scope and definitions.
(a) Scope. This part 719 describes the various sanctions that apply
to violations of the Act and the CWCR. It also establishes detailed
administrative procedures for certain violations of the Act. The three
categories of violations are as follows:
(1) Violations of the Act subject to administrative and criminal
enforcement proceedings. Section 719.2 of the CWCR sets forth
violations for which the statutory basis is the Act. BIS investigates
these violations and, for administrative proceedings, prepares charges,
provides legal representation to the U.S. Government, negotiates
settlements, and makes recommendations to officials of the Department
of State with respect to the initiation and resolution of proceedings.
The administrative procedures applicable to these violations are found
in Sec. Sec. 719.5 through 719.22 of the CWCR. The Department of State
gives notice of initiation of administrative proceedings and issues
orders imposing penalties pursuant to 22 CFR part 103, subpart C.
(2) Violations of the International Emergency Economic Powers Act
(IEEPA) subject to judicial enforcement proceedings. Section 719.3 of
the CWCR sets forth violations of the Chemical Weapons Convention for
which the statutory basis is the IEEPA. BIS refers these violations to
the Department of Justice for civil or criminal judicial enforcement.
(3) Violations and sanctions under the Act not subject to
proceedings under the CWCR. Section 719.4 of the CWCR sets forth
violations and sanctions under the
[[Page 24964]]
Act that are not violations of the CWCR and that are not subject to
proceedings under the CWCR. This section is included solely for
informational purposes. BIS may assist in investigations of these
violations, but has no authority to initiate any enforcement action
under the CWCR.
Note to Sec. 719.1(a): This part 719 does not apply to
violations of the export requirements imposed pursuant to the
Chemical Weapons Convention and set forth in the Export
Administration Regulations (EAR) (15 CFR parts 730 through 799) and
in the International Traffic in Arms Regulations (ITAR) (22 CFR
parts 120 through 130).
(b) Definitions. The following are definitions of terms as used
only in parts 719 and 720 of the CWCR. For definitions of terms
applicable to parts 710 through 718 and parts 721 and 722 of the CWCR,
see part 710 of the CWCR.
Act (The). The Chemical Weapons Convention Implementation Act of
1998 (22 U.S.C. 6701-6777).
Assistant Secretary for Export Enforcement. The Assistant Secretary
for Export Enforcement, Bureau of Industry and Security, United States
Department of Commerce.
Final decision. A decision or order assessing a civil penalty, or
otherwise disposing of or dismissing a case, which is not subject to
further administrative review, but which may be subject to collection
proceedings or judicial review in an appropriate Federal court as
authorized by law.
IEEPA. The International Emergency Economic Powers Act, as amended
(50 U.S.C. 1701-1706).
Office of Chief Counsel. The Office of Chief Counsel for Industry
and Security, United States Department of Commerce.
Report. For purposes of parts 719 and 720 of the CWCR, the term
``report'' means any declaration, report, or advance notification
required under parts 712 through 715 of the CWCR.
Respondent. Any person named as the subject of a letter of intent
to charge, or a Notice of Violation and Assessment (NOVA) and proposed
order.
Under Secretary, Bureau of Industry and Security. The Under
Secretary, Bureau of Industry and Security, United States Department of
Commerce.
Sec. 719.2 Violations of the Act subject to administrative and
criminal enforcement proceedings.
(a) Violations.--(1) Refusal to permit entry or inspection. No
person may willfully fail or refuse to permit entry or inspection, or
disrupt, delay or otherwise impede an inspection, authorized by the
Act.
(2) Failure to establish or maintain records. No person may
willfully fail or refuse:
(i) To establish or maintain any record required by the Act or the
CWCR; or
(ii) To submit any report, notice, or other information to the
United States Government in accordance with the Act or the CWCR; or
(iii) To permit access to or copying of any record required to be
established or maintained by the Act or the CWCR, including any record
that is exempt from disclosure under the Act or the CWCR.
(b) Civil penalties.--(1) Civil penalty for refusal to permit entry
or inspection. Any person that is determined to have willfully failed
or refused to permit entry or inspection, or to have disrupted, delayed
or otherwise impeded an authorized inspection, as set forth in
paragraph (a)(1) of this section, shall pay a civil penalty in an
amount not to exceed $25,000 for each violation. Each day the violation
continues constitutes a separate violation.
(2) Civil penalty for failure to establish or maintain records. Any
person that is determined to have willfully failed or refused to
establish or maintain any record or submit any report, notice, or other
information required by the Act or the CWCR, or to have willfully
failed or refused to permit access to or copying of any record,
including any record exempt from disclosure under the Act or the CWCR
as set forth in paragraph (a)(2) of this section, shall pay a civil
penalty in an amount not to exceed $5,000 for each violation.
(c) Criminal penalty. Any person that knowingly violates the Act by
willfully failing or refusing to permit entry or inspection authorized
by the Act; or by willfully disrupting, delaying or otherwise impeding
an inspection authorized by the Act; or by willfully failing or
refusing to establish or maintain any required record, or to submit any
required report, notice, or other information; or by willfully failing
or refusing to permit access to or copying of any record, including
records exempt from disclosure under the Act or the CWCR, shall, in
addition to or in lieu of any civil penalty that may be imposed, be
fined under Title 18 of the United States Code, be imprisoned for not
more than one year, or both.
(d) Denial of export privileges. Any person in the United States or
any U.S. national may be subject to a denial of export privileges after
notice and opportunity for hearing pursuant to part 720 of the CWCR if
that person has been convicted under Title 18, section 229 of the
United States Code.
Sec. 719.3 Violations of the IEEPA subject to judicial enforcement
proceedings.
(a) Violations.--(1) Import restrictions involving Schedule 1
chemicals. Except as otherwise provided in Sec. 712.2 of the CWCR, no
person may import any Schedule 1 chemical (See Supplement No. 1 to part
712 of the CWCR) unless:
(i) The import is from a State Party;
(ii) The import is for research, medical, pharmaceutical, or
protective purposes;
(iii) The import is in types and quantities strictly limited to
those that can be justified for such purposes; and
(iv) The importing person has notified BIS not less than 45
calendar days before the import pursuant to Sec. 712.6 of the CWCR.
(2) Import restrictions involving Schedule 2 chemicals. Except as
otherwise provided in Sec. 713.1 of the CWCR, no person may, on or
after April 29, 2000, import any Schedule 2 chemical (see Supplement
No. 1 to part 713 of the CWCR) from any destination other than a State
Party.
(b) Civil penalty. A civil penalty not to exceed $11,000 may be
imposed in accordance with this part on any person for each violation
of this section.\1\
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\1\ The maximum civil penalty allowed under the International
Emergency Economic Powers Act is $11,000 for any violation committed
on or after October 23, 1996 (15 CFR 6.4(a)(3)).
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(c) Criminal penalty. Whoever willfully violates paragraph (a)(1)
or (2) of this section shall, upon conviction, be fined not more than
$50,000, or, if a natural person, imprisoned for not more than ten
years, or both; and any officer, director, or agent of any corporation
who knowingly participates in such violation may be punished by like
fine, imprisonment, or both.\2\
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\2\ Alternatively, sanctions may be imposed under 18 U.S.C.
3571, a criminal code provision that establishes a maximum criminal
fine for a felony that is the greatest of: (1) The amount provided
by the statute that was violated; (2) an amount not more than
$250,000 for an individual, or not more than $500,000 for an
organization; or (3) an amount based on gain or loss from the
offense.
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Sec. 719.4 Violations and sanctions under the Act not subject to
proceedings under the CWCR.
(a) Criminal penalties for development or use of a chemical weapon.
Any person who violates 18 U.S.C. 229 shall be fined, or imprisoned for
any term of years, or both. Any person who violates 18 U.S.C. 229 and
by whose action the death of another person is the result shall be
punished by death or imprisoned for life.
(b) Civil penalty for development or use of a chemical weapon. The
Attorney
[[Page 24965]]
General may bring a civil action in the appropriate United States
district court against any person who violates 18 U.S.C. 229 and, upon
proof of such violation by a preponderance of the evidence, such person
shall be subject to pay a civil penalty in an amount not to exceed
$100,000 for each such violation.
(c) Criminal forfeiture. (1) Any person convicted under section
229A(a) of Title 18 of the United States Code shall forfeit to the
United States irrespective of any provision of State law:
(i) Any property, real or personal, owned, possessed, or used by a
person involved in the offense;
(ii) Any property constituting, or derived from, and proceeds the
person obtained, directly or indirectly, as the result of such
violation; and
(iii) Any of the property used in any manner or part, to commit, or
to facilitate the commission of, such violation.
(2) In lieu of a fine otherwise authorized by section 229A(a) of
Title 18 of the United States Code, a defendant who derived profits or
other proceeds from an offense may be fined not more than twice the
gross profits or other proceeds.
(d) Injunction. (1) The United States may, in a civil action,
obtain an injunction against:
(i) The conduct prohibited under section 229 or 229C of Title 18 of
the United States Code; or
(ii) The preparation or solicitation to engage in conduct
prohibited under section 229 or 229D of Title 18 of the United States
Code.
(2) In addition, the United States may, in a civil action, restrain
any violation of section 306 or 405 of the Act, or compel the taking of
any action required by or under the Act or the Convention.
Sec. 719.5 Initiation of administrative proceedings.
(a) Letter of intent to charge. The Director of the Office of
Export Enforcement, Bureau of Industry and Security, may notify a
respondent by letter of the intent to charge. This letter of intent to
charge will advise a respondent that BIS has conducted an investigation
and intends to recommend that the Secretary of State issue a Notice of
Violation and Assessment (NOVA). The letter of intent to charge will be
accompanied by a draft NOVA and proposed order, and will give the
respondent a specified period of time to contact BIS to discuss
settlement of the allegations set forth in the draft NOVA. An
administrative enforcement proceeding is not initiated by a letter of
intent to charge. If the respondent does not contact BIS within the
specified time, or if the respondent requests it, BIS will make its
request for initiation of an administrative enforcement proceeding to
the Secretary of State in accordance with paragraph (b) of this
section.
(b) Request for Notice of Violation and Assessment (NOVA). The
Director of the Office of Export Enforcement, Bureau of Industry and
Security, may request that the Secretary of State initiate an
administrative enforcement proceeding under this Sec. 719.5 and 22 CFR
103.7. If the request is in accordance with applicable law, the
Secretary of State will initiate an administrative enforcement
proceeding by issuing a NOVA. The Office of Chief Counsel shall serve
the NOVA as directed by the Secretary of State.
(c) Content of NOVA. The NOVA shall constitute a formal complaint,
and will set forth the basis for the issuance of the proposed order. It
will set forth the alleged violation(s) and the essential facts with
respect to the alleged violation(s), reference the relevant statutory,
regulatory or other provisions, and state the amount of the civil
penalty to be assessed. The NOVA will inform the respondent of the
right to request a hearing pursuant to Sec. 719.6 of the CWCR, inform
the respondent that failure to request such a hearing shall result in
the proposed order becoming final and unappealable on signature of the
Secretary of State, and provide payment instructions. A copy of the
regulations that govern the administrative proceedings will accompany
the NOVA.
(d) Proposed order. A proposed order shall accompany every NOVA,
letter of intent to charge, and draft NOVA. It will briefly set forth
the substance of the alleged violation(s) and the statutory, regulatory
or other provisions violated. It will state the amount of the civil
penalty to be assessed.
(e) Notice. Notice of the intent to charge or of the initiation of
formal proceedings shall be given to the respondent (or respondent's
agent for service of process, or attorney) by sending relevant
documents, via first class mail, facsimile, or by personal delivery.
Sec. 719.6 Request for hearing and answer.
(a) Time to answer. If the respondent wishes to contest the NOVA
and proposed order issued by the Secretary of State, the respondent
must request a hearing in writing within 15 business days from the
postmarked date of the NOVA. If the respondent requests a hearing, the
respondent must answer the NOVA within 30 days from the date of the
request for hearing. The request for hearing and answer must be filed
with the Administrative Law Judge (ALJ), along with a copy of the NOVA
and proposed order, and served on the Office of Chief Counsel, and any
other address(es) specified in the NOVA, in accordance with Sec. 719.8
of the CWCR.
(b) Content of answer. The respondent's answer must be responsive
to the NOVA and proposed order, and must fully set forth the nature of
the respondent's defense(s). The answer must specifically admit or deny
each separate allegation in the NOVA; if the respondent is without
knowledge, the answer will so state and will operate as a denial.
Failure to deny or controvert a particular allegation will be deemed an
admission of that allegation. The answer must also set forth any
additional or new matter the respondent contends supports a defense or
claim of mitigation. Any defense or partial defense not specifically
set forth in the answer shall be deemed waived, and evidence thereon
may be refused, except for good cause shown.
(c) English required. The request for hearing, answer, and all
other papers and documentary evidence must be submitted in English.
(d) Waiver. The failure of the respondent to file a request for a
hearing and an answer within the times provided constitutes a waiver of
the respondent's right to appear and contest the allegations set forth
in the NOVA and proposed order. If no hearing is requested and no
answer is provided, the proposed order will be signed and become final
and unappealable.
Sec. 719.7 Representation.
A respondent individual may appear and participate in person, a
corporation by a duly authorized officer or employee, and a partnership
by a partner. If a respondent is represented by counsel, counsel shall
be a member in good standing of the bar of any State, Commonwealth or
Territory of the United States, or of the District of Columbia, or be
licensed to practice law in the country in which counsel resides, if
not the United States. The U.S. Government will be represented by the
Office of Chief Counsel. A respondent personally, or through counsel or
other representative who has the power of attorney to represent the
respondent, shall file a notice of appearance with the ALJ, or, in
cases where settlement negotiations occur before any filing with the
ALJ, with the Office of Chief Counsel.
[[Page 24966]]
Sec. 719.8 Filing and service of papers other than the NOVA.
(a) Filing. All papers to be filed with the ALJ shall be addressed
to ``CWC Administrative Enforcement Proceedings'' at the address set
forth in the NOVA, or such other place as the ALJ may designate. Filing
by United States mail (first class postage prepaid), by express or
equivalent parcel delivery service, via facsimile, or by hand delivery,
is acceptable. Filing from a foreign country shall be by airmail or via
facsimile. A copy of each paper filed shall be simultaneously served on
all parties.
(b) Service. Service shall be made by United States mail (first
class postage prepaid), by express or equivalent parcel delivery
service, via facsimile, or by hand delivery of one copy of each paper
to each party in the proceeding. The Department of State is a party to
cases under the CWCR, but will be represented by the Office of Chief
Counsel. Therefore, service on the government party in all proceedings
shall be addressed to Office of Chief Counsel for Industry and
Security, U.S. Department of Commerce, 14th Street and Constitution
Avenue, NW., Room H-3839, Washington, DC 20230, or sent via facsimile
to (202) 482-0085. Service on a respondent shall be to the address to
which the NOVA and proposed order was sent, or to such other address as
the respondent may provide. When a party has appeared by counsel or
other representative, service on counsel or other representative shall
constitute service on that party.
(c) Date. The date of filing or service is the day when the papers
are deposited in the mail or are delivered in person, by delivery
service, or by facsimile. Refusal by the person to be served, or by the
person's agent or attorney, of service of a document or other paper
will be considered effective service of the document or other paper as
of the date of such refusal.
(d) Certificate of service. A certificate of service signed by the
party making service, stating the date and manner of service, shall
accompany every paper, other than the NOVA and proposed order, filed
and served on the parties.
(e) Computation of time. In computing any period of time prescribed
or allowed by this part, the day of the act, event, or default from
which the designated period of time begins to run is not to be
included. The last day of the period so computed is to be included
unless it is a Saturday, a Sunday, or a legal holiday (as defined in
Rule 6(a) of the Federal Rules of Civil Procedure), in which case the
period runs until the end of the next day which is neither a Saturday,
a Sunday, nor a legal holiday. Intermediate Saturdays, Sundays, and
legal holidays are excluded from the computation when the period of
time prescribed or allowed is 7 days or less.
Sec. 719.9 Summary decision.
The ALJ may render a summary decision disposing of all or part of a
proceeding on the motion of any party to the proceeding, provided that
there is no genuine issue as to any material fact and the party is
entitled to summary decision as a matter of law.
Sec. 719.10 Discovery.
(a) General. The parties are encouraged to engage in voluntary
discovery regarding any matter, not privileged, which is relevant to
the subject matter of the pending proceeding. The provisions of the
Federal Rules of Civil Procedure relating to discovery apply to the
extent consistent with this part and except as otherwise provided by
the ALJ or by waiver or agreement of the parties. The ALJ may make any
order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense. These
orders may include limitations on the scope, method, time and place of
discovery, and provisions for protecting the confidentiality of
classified or otherwise sensitive information, including Confidential
Business Information (CBI) as defined by the Act.
(b) Interrogatories and requests for admission or production of
documents. A party may serve on any party interrogatories, requests for
admission, or requests for production of documents for inspection and
copying, and a party concerned may apply to the ALJ for such
enforcement or protective order as that party deems warranted with
respect to such discovery. The service of a discovery request shall be
made at least 20 days before the scheduled date of the hearing unless
the ALJ specifies a shorter time period. Copies of interrogatories,
requests for admission and requests for production of documents and
responses thereto shall be served on all parties and a copy of the
certificate of service shall be filed with the ALJ. Matters of fact or
law of which admission is requested shall be deemed admitted unless,
within a period designated in the request (at least 10 days after
service, or within such additional time as the ALJ may allow), the
party to whom the request is directed serves upon the requesting party
a sworn statement either denying specifically the matters of which
admission is requested or setting forth in detail the reasons why the
party to whom the request is directed cannot truthfully either admit or
deny such matters.
(c) Depositions. Upon application of a party and for good cause
shown, the ALJ may order the taking of the testimony of any person by
deposition and the production of specified documents or materials by
the person at the deposition. The application shall state the purpose
of the deposition and set forth the facts sought to be established
through the deposition.
(d) Enforcement. The ALJ may order a party to answer designated
questions, to produce specified documents or things or to take any
other action in response to a proper discovery request. If a party does
not comply with such an order, the ALJ may make a determination or
enter any order in the proceeding as the ALJ deems reasonable and
appropriate. The ALJ may strike related charges or defenses in whole or
in part or may take particular facts relating to the discovery request
to which the party failed or refused to respond as being established
for purposes of the proceeding in accordance with the contentions of
the party seeking discovery. In addition, enforcement by any district
court of the United States in which venue is proper may be sought as
appropriate.
Sec. 719.11 Subpoenas.
(a) Issuance. Upon the application of any party, supported by a
satisfactory showing that there is substantial reason to believe that
the evidence would not otherwise be available, the ALJ may issue
subpoenas to any person requiring the attendance and testimony of
witnesses and the production of such books, records or other
documentary or physical evidence for the purpose of the hearing, as the
ALJ deems relevant and material to the proceedings, and reasonable in
scope. Witnesses shall be paid the same fees and mileage that are paid
to witnesses in the courts of the United States. In case of contempt,
challenge or refusal to obey a subpoena served upon any person pursuant
to this paragraph, any district court of the United States, in which
venue is proper, has jurisdiction to issue an order requiring any such
person to comply with such subpoena. Any failure to obey such order of
the court is punishable by the court as a contempt thereof.
(b) Service. Subpoenas issued by the ALJ may be served by any of
the methods set forth in Sec. 719.8(b) of the CWCR.
(c) Timing. Applications for subpoenas must be submitted at least
10 days before the scheduled hearing or
[[Page 24967]]
deposition, unless the ALJ determines, for good cause shown, that
extraordinary circumstances warrant a shorter time.
Sec. 719.12 Matters protected against disclosure.
(a) Protective measures. The ALJ may limit discovery or
introduction of evidence or issue such protective or other orders as in
the ALJ's judgment may be needed to prevent undue disclosure of
classified or sensitive documents or information, including
Confidential Business Information as defined by the Act. Where the ALJ
determines that documents containing classified or sensitive matter
must be made available to a party in order to avoid prejudice, the ALJ
may direct the other party to prepare an unclassified and nonsensitive
summary or extract of the documents. The ALJ may compare the extract or
summary with the original to ensure that it is supported by the source
document and that it omits only so much as must remain undisclosed. The
summary or extract may be admitted as evidence in the record.
(b) Arrangements for access. If the ALJ determines that the summary
procedure outlined in paragraph (a) of this section is unsatisfactory,
and that classified or otherwise sensitive matter must form part of the
record in order to avoid prejudice to a party, the ALJ may provide the
parties opportunity to make arrangements that permit a party or a
representative to have access to such matter without compromising
sensitive information. Such arrangements may include obtaining security
clearances or giving counsel for a party access to sensitive
information and documents subject to assurances against further
disclosure, including a protective order, if necessary.
Sec. 719.13 Prehearing conference.
(a) On the ALJ's own motion, or on request of a party, the ALJ may
direct the parties to participate in a prehearing conference, either in
person or by telephone, to consider:
(1) Simplification of issues;
(2) The necessity or desirability of amendments to pleadings;
(3) Obtaining stipulations of fact and of documents to avoid
unnecessary proof; or
(4) Such other matters as may expedite the disposition of the
proceedings.
(b) The ALJ may order the conference proceedings to be recorded
electronically or taken by a reporter, transcribed and filed with the
ALJ.
(c) If a prehearing conference is impracticable, the ALJ may direct
the parties to correspond with the ALJ to achieve the purposes of such
a conference.
(d) The ALJ will prepare a summary of any actions agreed on or
taken pursuant to this section. The summary will include any written
stipulations or agreements made by the parties.
Sec. 719.14 Hearings.
(a) Scheduling. Upon receipt of a written and dated request for a
hearing, the ALJ shall, by agreement with all the parties or upon
notice to all parties of at least 30 days, schedule a hearing. All
hearings will be held in Washington, DC, unless the ALJ determines, for
good cause shown, that another location would better serve the interest
of justice.
(b) Hearing procedure. Hearings will be conducted in a fair and
impartial manner by the ALJ. All hearings will be closed, unless the
ALJ for good cause shown determines otherwise. The rules of evidence
prevailing in courts of law do not apply, and all evidentiary material
deemed by the ALJ to be relevant and material to the proceeding and not
unduly repetitious will be received and given appropriate weight,
except that any evidence of settlement which would be excluded under
Rule 408 of the Federal Rules of Evidence is not admissible. Witnesses
will testify under oath or affirmation, and shall be subject to cross-
examination.
(c) Testimony and record. (1) A verbatim record of the hearing and
of any other oral proceedings will be taken by reporter or by
electronic recording, and filed with the ALJ. If any party wishes to
obtain a written copy of the transcript, that party shall pay the costs
of transcription. The parties may share the costs if both wish a
transcript.
(2) Upon such terms as the ALJ deems just, the ALJ may direct that
the testimony of any person be taken by deposition and may admit an
affidavit or declaration as evidence, provided that any affidavits or
declarations have been filed and served on the parties sufficiently in
advance of the hearing to permit a party to file and serve an objection
thereto on the grounds that it is necessary that the affiant or
declarant testify at the hearing and be subject to cross-examination.
(d) Failure to appear. If a party fails to appear in person or by
counsel at a scheduled hearing, the hearing may nevertheless proceed.
The party's failure to appear will not affect the validity of the
hearing or any proceeding or action taken thereafter.
Sec. 719.15 Procedural stipulations.
Unless otherwise ordered and subject to Sec. 719.16 of the CWCR, a
written stipulation agreed to by all parties and filed with the ALJ
will modify the procedures established by this part.
Sec. 719.16 Extension of time.
The parties may extend any applicable time limitation by
stipulation filed with the ALJ before the time limitation expires, or
the ALJ may, on the ALJ's own initiative or upon application by any
party, either before or after the expiration of any applicable time
limitation, extend the time , except that the requirement that a
hearing be demanded within 15 days, and the requirement that a final
agency decision be made within 30 days, may not be modified.
Sec. 719.17 Post-hearing submissions.
All parties shall have the opportunity to file post-hearing
submissions that may include findings of fact and conclusions of law,
supporting evidence and legal arguments, exceptions to the ALJ's
rulings or to the admissibility of evidence, and proposed orders and
settlements.
Sec. 719.18 Decisions.
(a) Initial decision. After considering the entire record in the
case, the ALJ will issue an initial decision based on a preponderance
of the evidence. The decision will include findings of fact,
conclusions of law, and a decision based thereon as to whether the
respondent has violated the Act. If the ALJ finds that the evidence of
record is insufficient to sustain a finding that a violation has
occurred with respect to one or more allegations, the ALJ shall order
dismissal of the allegation(s) in whole or in part, as appropriate. If
the ALJ finds that one or more violations have been committed, the ALJ
shall issue an order imposing administrative sanctions.
(b) Factors considered in assessing penalties. In determining the
amount of a civil penalty, the ALJ shall take into account the nature,
circumstances, extent and gravity of the violation(s), and, with
respect to the respondent, the respondent's ability to pay the penalty,
the effect of a civil penalty on the respondent's ability to continue
to do business, the respondent's history of prior violations, the
respondent's degree of culpability, the existence of an internal
compliance program, and such other matters as justice may require.
(c) Certification of initial decision. The ALJ shall immediately
certify the initial decision and order to the Executive Director of the
Office of Legal Adviser, U.S. Department of State, 2201 C Street, NW.,
Room 5519, Washington, DC 20520, to the Office of Chief Counsel
[[Page 24968]]
at the address in Sec. 719.8, and to the respondent, by personal
delivery or overnight mail.
(d) Review of initial decision. The initial decision shall become
the final agency decision and order unless, within 30 days, the
Secretary of State modifies or vacates it, with or without conditions,
in accordance with 22 CFR 103.8.
Sec. 719.19 Settlement.
(a) Settlements before issuance of a NOVA. When the parties have
agreed to a settlement of the case, the Director of the Office of
Export Enforcement will recommend the settlement to the Secretary of
State, forwarding a proposed settlement agreement and order, which, in
accordance with 22 CFR 103.9(a), the Secretary of State will approve
and sign if the recommended settlement is in accordance with applicable
law.
(b) Settlements following issuance of a NOVA. The parties may enter
into settlement negotiations at any time during the time a case is
pending before the ALJ. If necessary, the parties may extend applicable
time limitations or otherwise request that the ALJ stay the proceedings
while settlement negotiations continue. When the parties have agreed to
a settlement of the case, the Office of Chief Counsel will recommend
the settlement to the Secretary of State, forwarding a proposed
settlement agreement and order, which, in accordance with 22 CFR
103.9(b), the Secretary will approve and sign if the recommended
settlement is in accordance with applicable law.
(c) Settlement scope. Any respondent who agrees to an order
imposing any administrative sanction does so solely for the purpose of
resolving the claims in the administrative enforcement proceeding
brought under this part. This reflects the fact that the government
officials involved have neither the authority nor the responsibility
for initiating, conducting, settling, or otherwise disposing of
criminal proceedings. That authority and responsibility are vested in
the Attorney General and the Department of Justice.
(d) Finality. Cases that are settled may not be reopened or
appealed.
Sec. 719.20 Record for decision.
(a) The record. The transcript of hearings, exhibits, rulings,
orders, all papers and requests filed in the proceedings, and, for
purposes of any appeal under Sec. 719.18 or under 22 CFR 103.8, the
decision of the ALJ and such submissions as are provided for under
Sec. 719.18 or 22 CFR 103.8 will constitute the record and the
exclusive basis for decision. When a case is settled, the record will
consist of any and all of the foregoing, as well as the NOVA or draft
NOVA, settlement agreement, and order.
(b) Restricted access. On the ALJ's own motion, or on the motion of
any party, the ALJ may direct that there be a restricted access portion
of the record for any material in the record to which public access is
restricted by law or by the terms of a protective order entered in the
proceedings. A party seeking to restrict access to any portion of the
record is responsible, prior to the close of the proceeding, for
submitting a version of the document(s) proposed for public
availability that reflects the requested deletion. The restricted
access portion of the record will be placed in a separate file and the
file will be clearly marked to avoid improper disclosure and to
identify it as a portion of the official record in the proceedings. The
ALJ may act at any time to permit material that becomes declassified or
unrestricted through passage of time to be transferred to the
unrestricted access portion of the record.
(c) Availability of documents.--(1) Scope. All NOVAs and draft
NOVAs, answers, settlement agreements, decisions and orders disposing
of a case will be displayed on the BIS Freedom of Information Act
(FOIA) Web site, at http://www.bis.doc.gov/foia, which is maintained by
the Office of Administration, Bureau of Industry and Security, U.S.
Department of Commerce. This office does not maintain a separate
inspection facility. The complete record for decision, as defined in
paragraphs (a) and (b) of this section will be made available on
request.
(2) Timing. The record for decision will be available only after
the final administrative disposition of a case. Parties may seek to
restrict access to any portion of the record under paragraph (b) of
this section.
Sec. 719.21 Payment of final assessment.
(a) Time for payment. Full payment of the civil penalty must be
made within 30 days of the effective date of the order or within such
longer period of time as may be specified in the order. Payment shall
be made in the manner specified in the NOVA.
(b) Enforcement of order. The government party may, through the
Attorney General, file suit in an appropriate district court if
necessary to enforce compliance with a final order issued under the
CWCR. This suit will include a claim for interest at current prevailing
rates from the date payment was due or ordered.
(c) Offsets. The amount of any civil penalty imposed by a final
order may be deducted from any sum(s) owed by the United States to a
respondent.
Sec. 719.22 Reporting a violation.
If a person learns that a violation of the Convention, the Act, or
the CWCR has occurred or may occur, that person may notify: Office of
Export Enforcement, Bureau of Industry and Security, U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW., Room H-4520,
Washington, DC 20230; Tel: (202) 482-1208; Facsimile: (202) 482-0964.
PART 720--DENIAL OF EXPORT PRIVILEGES
Sec.
720.1 Denial of export privileges for convictions under 18 U.S.C.
229.
720.2 Initiation of administrative action denying export privileges.
720.3 Final decision on administrative action denying export
privileges.
720.4 Effect of denial.
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
Sec. 720.1 Denial of export privileges for convictions under 18
U.S.C. 229.
Any person in the United States or any U.S. national may be denied
export privileges after notice and opportunity for hearing if that
person has been convicted under Title 18, Section 229 of the United
States Code of knowingly:
(a) Developing, producing, otherwise acquiring, transferring
directly or indirectly, receiving, stockpiling, retaining, owning,
possessing, or using, or threatening to use, a chemical weapon; or
(b) Assisting or inducing, in any way, any person to violate
paragraph (a) of this section, or attempting or conspiring to violate
paragraph (a) of this section.
Sec. 720.2 Initiation of administrative action denying export
privileges.
(a) Notice. BIS will notify any person convicted under Section 229,
Title 18, United States Code, of BIS's intent to deny that person's
export privileges. The notification letter shall reference the person's
conviction, specify the number of years for which BIS intends to deny
export privileges, set forth the statutory and regulatory authority for
the action, state whether the denial order will be standard or non-
standard pursuant to Supplement No. 1 to part 764 of the Export
Administration Regulations (15 CFR parts 730 through 799), and provide
that the person may request a hearing before the Administrative Law
Judge within 30 days from the date of the notification letter.
[[Page 24969]]
(b) Waiver. The failure of the notified person to file a request
for a hearing within the time provided constitutes a waiver of the
person's right to contest the denial of export privileges that BIS
intends to impose.
(c) Order of Assistant Secretary. If no hearing is requested, the
Assistant Secretary for Export Enforcement will order that export
privileges be denied as indicated in the notification letter.
Sec. 720.3 Final decision on administrative action denying export
privileges.
(a) Hearing. Any hearing that is granted by the ALJ shall be
conducted in accordance with the procedures set forth in Sec. 719.14
of the CWCR.
(b) Initial decision and order. After considering the entire record
in the proceeding, the ALJ will issue an initial decision and order,
based on a preponderance of the evidence. The ALJ may consider factors
such as the seriousness of the criminal offense that is the basis for
conviction, the nature and duration of the criminal sanctions imposed,
and whether the person has undertaken any corrective measures. The ALJ
may dismiss the proceeding if the evidence is insufficient to sustain a
denial of export privileges, or may issue an order imposing a denial of
export privileges for the length of time the ALJ deems appropriate. An
order denying export privileges may be standard or non-standard, as
provided in Supplement No. 1 to part 764 of the Export Administration
Regulations (15 CFR parts 730 through 799). The initial decision and
order will be served on each party, and will be published in the
Federal Register as the final decision of BIS 30 days after service,
unless an appeal is filed in accordance with paragraph (c) of this
section.
(c) Grounds for appeal. (1) A party may, within 30 days of the
ALJ's initial decision and order, petition the Under Secretary, Bureau
of Industry and Security, for review of the initial decision and order.
A petition for review must be filed with the Office of Under Secretary,
Bureau of Industry and Security, Department of Commerce, 14th Street
and Constitution Avenue, NW., Washington, DC 20230, and shall be served
on the Office of Chief Counsel for Industry and Security or on the
respondent. Petitions for review may be filed only on one or more of
the following grounds:
(i) That a necessary finding of fact is omitted, erroneous or
unsupported by substantial evidence of record;
(ii) That a necessary legal conclusion or finding is contrary to
law;
(iii) That prejudicial procedural error occurred; or
(iv) That the decision or the extent of sanctions is arbitrary,
capricious or an abuse of discretion.
(2) The appeal must specify the grounds on which the appeal is
based and the provisions of the order from which the appeal was taken.
(d) Appeal procedure. The Under Secretary, Bureau of Industry and
Security, normally will not hold hearings or entertain oral arguments
on appeals. A full written statement in support of the appeal must be
filed with the appeal and be simultaneously served on all parties, who
shall have 30 days from service to file a reply. At his/her discretion,
the Under Secretary may accept new submissions, but will not ordinarily
accept those submissions filed more than 30 days after the filing of
the reply to the appellant's first submission.
(e) Decisions. The Under Secretary's decision will be in writing
and will be accompanied by an order signed by the Under Secretary,
Bureau of Industry and Security, giving effect to the decision. The
order may either dispose of the case by affirming, modifying or
reversing the order of the ALJ, or may refer the case back to the ALJ
for further proceedings. Any order that imposes a denial of export
privileges will be published in the Federal Register.
Sec. 720.4 Effect of denial.
Any person denied export privileges pursuant to this part shall be
considered a ``person denied export privileges'' for purposes of the
Export Administration Regulations (EAR) (15 CFR parts 730 through 799).
Orders denying export privileges pursuant to Parts 764 and 766 of the
EAR are published in the Federal Register when they are issued and are
legally controlling documents in accordance with their terms. BIS
maintains unofficial compilations of persons denied export privileges
on its Web site.
PART 721--INSPECTION OF RECORDS AND RECORDKEEPING
Sec.
721.1 Inspection of records.
721.2 Recordkeeping.
721.3 Destruction or disposal of records.
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
Sec. 721.1 Inspection of records.
Upon request by BIS or any other agency of competent jurisdiction,
you must permit access to and copying of any record relating to
compliance with the requirements of the CWCR. This requires that you
make available the equipment and, if necessary, knowledgeable personnel
for locating, reading, and reproducing any record.
Sec. 721.2 Recordkeeping.
(a) Requirements. Each person, facility, plant site or trading
company required to submit a declaration, report, or advance
notification under parts 712 through 715 of the CWCR must retain all
supporting materials and documentation used by a unit, plant, facility,
plant site or trading company to prepare such declaration, report, or
advance notification to determine production processing, consumption,
export or import of chemicals. In the event that a declared facility is
sold, the previous owner of the facility must retain all such
supporting materials and documentation that were not transferred to the
current owner of the facility (e.g., as part of the contract involving
the sale of the facility)--otherwise, the current owner of the facility
is responsible for retaining such supporting materials and
documentation. Whenever the previous owner of a declared facility
retains such supporting materials and documentation, the owner must
inform BIS of any subsequent change in address or other contact
information, so that BIS will be able to contact the previous owner of
the facility, to arrange for access to such records, if BIS deems them
relevant to inspection activities involving the facility (see Sec.
716.4 of the CWCR).
(b) Five year retention period. All supporting materials and
documentation required to be kept under paragraph (a) of this section
must be retained for five years from the due date of the applicable
declaration, report, or advance notification, or for five years from
the date of submission of the applicable declaration, report or advance
notification, whichever is later. Due dates for declarations, reports
and advance notifications are provided in parts 712 through 715 of the
CWCR.
(c) Location of records. If a facility is subject to inspection
under part 716 of the CWCR, records retained under this section must be
maintained at the facility or must be accessible electronically at the
facility for purposes of inspection of the facility by Inspection
Teams. If a facility is not subject to inspection under part 716 of the
CWCR, records retained under this section may be maintained either at
the facility subject to a declaration, report, or advance notification
requirement, or at a remote location, but all records must be
accessible to any authorized agent, official or employee of the U.S.
Government under Sec. 721.1 of the CWCR.
(d) Reproduction of original records. (1) You may maintain
reproductions
[[Page 24970]]
instead of the original records provided all of the requirements of
paragraph (b) of this section are met.
(2) If you must maintain records under this part, you may use any
photostatic, miniature photographic, micrographic, automated archival
storage, or other process that completely, accurately, legibly and
durably reproduces the original records (whether on paper, microfilm,
or through electronic digital storage techniques). The process must
meet all of the following requirements, which are applicable to all
systems:
(i) The system must be capable of reproducing all records on paper.
(ii) The system must record and be able to reproduce all marks,
information, and other characteristics of the original record,
including both obverse and reverse sides (unless blank) of paper
documents in legible form.
(iii) When displayed on a viewer, monitor, or reproduced on paper,
the records must exhibit a high degree of legibility and readability.
For purposes of this section, legible and legibility mean the quality
of a letter or numeral that enable the observer to identify it
positively and quickly to the exclusion of all other letters or
numerals. Readable and readability mean the quality of a group of
letters or numerals being recognized as complete words or numbers.
(iv) The system must preserve the initial image (including both
obverse and reverse sides, unless blank, of paper documents) and record
all changes, who made them and when they were made. This information
must be stored in such a manner that none of it may be altered once it
is initially recorded.
(v) You must establish written procedures to identify the
individuals who are responsible for the operation, use and maintenance
of the system.
(vi) You must keep a record of where, when, by whom, and on what
equipment the records and other information were entered into the
system.
(3) Requirements applicable to a system based on digital images.
For systems based on the storage of digital images, the system must
provide accessibility to any digital image in the system. The system
must be able to locate and reproduce all records according to the same
criteria that would have been used to organize the records had they
been maintained in original form.
(4) Requirements applicable to a system based on photographic
processes. For systems based on photographic, photostatic, or miniature
photographic processes, the records must be maintained according to an
index of all records in the system following the same criteria that
would have been used to organize the records had they been maintained
in original form.
Sec. 721.3 Destruction or disposal of records.
If BIS or other authorized U.S. government agency makes a formal or
informal request for a certain record or records, such record or
records may not be destroyed or disposed of without the written
authorization of the requesting entity.
PART 722--INTERPRETATIONS [RESERVED]
Note: This part is reserved for interpretations of parts 710
through 721 and also for applicability of decisions by the
Organization for the Prohibition of Chemical Weapons (OPCW).
PARTS 723-729 [RESERVED]
Dated: April 12, 2006.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 06-3747 Filed 4-26-06; 8:45 am]
BILLING CODE 3510-33-P