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Thursday,

April 27, 2006

Part II

Department of
Commerce
Bureau of Industry and Security

15 CFR Parts 711, 712 et al.


Chemical Weapons Convention
Regulations; Final Rule
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24918 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

DEPARTMENT OF COMMERCE Room 2705, Washington, DC 20230, enacted on October 21, 1998, authorizes
ATTN: RIN 0694–AB06. the United States to require the U.S.
Bureau of Industry and Security FOR FURTHER INFORMATION CONTACT: For chemical industry and other private
questions of a general or regulatory entities to submit declarations,
15 CFR Parts 710, 711, 712, 713, 714, nature, contact the Regulatory Policy notifications and other reports and also
715, 716, 717, 718, 719, 720, 721, and Division, telephone: (202) 482–2440. to provide access for on-site inspections
722 For program information on conducted by inspectors sent by the
[Docket No. 990611158–5327–06] declarations, reports, advance Organization for the Prohibition of
notifications, chemical determinations, Chemical Weapons. Executive Order
RIN 0694–AB06 recordkeeping, inspections and facility (E.O.) 13128 delegates authority to the
agreements, contact the Treaty Department of Commerce to promulgate
Chemical Weapons Convention Compliance Division, Office of regulations, obtain and execute
Regulations Nonproliferation and Treaty warrants, provide assistance to certain
AGENCY: Bureau of Industry and Compliance, telephone: (703) 605–4400; facilities, and carry out appropriate
Security, Commerce. for legal questions, contact Rochelle functions to implement the CWC,
ACTION: Final rule. Woodard, Office of the Chief Counsel consistent with the Act. The Department
for Industry and Security, telephone: of Commerce implements CWC import
SUMMARY: On April 25, 1997, the United (202) 482–5301. restrictions under the authority of the
States ratified the Convention on the SUPPLEMENTARY INFORMATION: International Emergency Economic
Prohibition of the Development, Powers Act, the National Emergencies
Production, Stockpiling and Use of Background Act, and E.O. 12938, as amended by
Chemical Weapons and on Their I. Summary of CWCR Changes E.O. 13128. The Departments of State
Destruction, also known as the Contained in This Final Rule and Commerce have implemented the
Chemical Weapons Convention (CWC or On April 25, 1997, the United States CWC export restrictions under their
Convention). The Bureau of Industry ratified the Convention on the respective export control authorities.
and Security (BIS) published an interim Development, Production, Stockpiling E.O. 13128 designates the Department of
rule, on December 30, 1999, that and Use of Chemical Weapons and on State as the United States National
established the Chemical Weapons Their Destruction, also known as the Authority (USNA) for purposes of the
Convention Regulations (CWCR) to Chemical Weapons Convention (CWC or CWC and the Act.
implement the provisions of the CWC Convention). The CWC, which entered On December 30, 1999, the Bureau of
affecting U.S. industry and other U.S. into force on April 29, 1997, is an arms Industry and Security (BIS), U.S.
persons. The CWCR include control treaty with significant Department of Commerce, published an
requirements to report certain activities, nonproliferation aspects. As such, the interim rule that established the
involving scheduled chemicals and CWC bans the development, production, Chemical Weapons Convention
unscheduled discrete organic chemicals, stockpiling or use of chemical weapons Regulations (CWCR) (15 CFR Parts 710–
and to provide access for on-site and prohibits States Parties to the CWC 722). The CWCR implemented the
verification by international inspectors from assisting or encouraging anyone to provisions of the CWC, affecting U.S.
of certain facilities and locations in the engage in a prohibited activity. The industry and U.S. persons, in
United States. This final rule updates CWC provides for declaration and accordance with the provisions of the
the CWCR to remove outdated inspection of all States Parties’ chemical Act. This final rule revises the CWCR by
provisions and include additional weapons and chemical weapon updating them to remove outdated
requirements identified in the production facilities, and oversees the provisions (e.g., the initial declaration
implementation of the CWC and by destruction of such weapons and requirements in parts 713, 714, and 715)
clarifying other CWC requirements. facilities. To fulfill its arms control and and include additional requirements
DATES: This rule is effective April 27, nonproliferation objectives, the CWC identified as necessary for the
2006. Although there is no formal also establishes a comprehensive implementation of the CWC provisions
comment period, public comments on verification scheme and requires the and by clarifying other CWC
this regulation are welcome on a declaration and inspection of facilities requirements. The changes made by this
continuing basis. that produce, process or consume rule were addressed in a proposed rule
ADDRESSES: You may submit comments, certain ‘‘scheduled’’ chemicals and and request for public comments that
identified by RIN 0694–AB06, by any of unscheduled discrete organic chemicals, BIS published on December 7, 2004.
the following methods: many of which have significant Specifically, this final rule makes the
• Federal eRulemaking Portal: http:// commercial applications. The CWC also following revisions to the CWCR:
www.regulations.gov. Follow the requires States Parties to report exports A. Revisions to Section 710.1 of the
instructions for submitting comments. and imports and to impose export and CWCR (Definitions of Terms Used in the
• E-mail: import restrictions on certain chemicals. CWCR)
public.comments@bis.doc.gov. Include These requirements apply to all entities
‘‘RIN 0694–AB06’’ in the subject line of under the jurisdiction and control of This rule revises § 710.1 of the CWCR
the message. States Parties, including commercial by amending the definition of ‘‘domestic
• Fax: (202) 482–3355. Please alert entities and individuals. States Parties transfer’’ to clarify that the term, as
the Regulatory Policy Division, by to the CWC, including the United States, applied to the declaration requirements
calling (202) 482–2440, if you are faxing have agreed to this verification scheme for Schedule 2 or Schedule 3 chemicals
comments. in order to provide transparency and to under the CWCR, means the movement
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• Mail or Hand Delivery/Courier: ensure that no State Party to the CWC of a Schedule 2 or Schedule 3 chemical,
Willard Fisher, U.S. Department of is engaging in prohibited activities. in quantities and concentrations greater
Commerce, Bureau of Industry and The Chemical Weapons Convention than the specified thresholds under the
Security, Regulatory Policy Division, Implementation Act of 1998 (the Act or convention, outside the geographical
14th St. & Pennsylvania Avenue, NW., CWCIA) (22 U.S.C. 6701 et seq.), boundary of a facility in the United

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Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations 24919

States to another destination in the that the ‘‘production’’ of a Schedule 2 or C. Amendments to Section 710.6 of the
United States, for any purpose. Schedule 3 chemical ‘‘means all steps in CWCR (Relationship Between the CWCR
This rule adds a definition for the the production of a chemical in any and the Export Administration
term ‘‘intermediate’’ to § 710.1 of the units within the same plant through Regulations)
CWCR in order to clarify the use of that chemical reaction, including any This rule amends § 710.6 of the CWCR
term in § 712.5(d) and Supplement No. associated processes (e.g., purification, to include a reference to Export Control
2 to part 715 of the CWCR. Section separation, extraction, distillation, or Classification Number (ECCN) 1C395 on
710.1 of the CWCR is amended to define refining) in which the chemical is not the Commerce Control List (CCL), which
‘‘intermediate’’ as ‘‘a chemical formed converted into another chemical. The
through chemical reaction that is is in Supplement No. 1 to part 774 of
exact nature of any associated process the EAR. ECCN 1C395 controls the
subsequently reacted to form another (e.g., purification, etc.) is not required to
chemical.’’ The definition of following items: (i) mixtures that
be declared.’’ contain more than 10 percent, but less
‘‘intermediate’’ also clarifies its use in
This rule adds a definition of the term than 30 percent, by weight of any single
§§ 712.5(d), 713.2(a)(2)(ii) and
‘‘production by synthesis’’ in § 710.1 of CWC Schedule 2 chemical identified in
714.1(a)(2)(ii), whereby Schedule 1,
the CWCR to clarify the use of the term ECCN 1C350.b and (ii) certain medical,
Schedule 2 and Schedule 3 chemicals
in § 715.1 of the CWCR (i.e., declaration analytical, diagnostic and food testing
that are intermediates, but not transient
intermediates, must be considered when of production by synthesis of UDOCs for kits that contain CWC Schedule 2 or
determining if a chemical is subject to purposes not prohibited by the CWC) Schedule 3 chemicals controlled by
declaration. Lastly, Supplement No. 2 to and Supplement No. 2 to part 715 of the ECCN 1C350.b or .c, respectively, in an
part 715 of the CWCR, which provides CWCR (i.e., examples of activities that amount not exceeding 300 grams per
examples of unscheduled discrete are not considered to be production by chemical.
organic chemicals (UDOCs) and UDOC synthesis under part 715 of the CWCR).
Section 710.1 of the CWCR defines D. Amendments to Supplement No. 1 to
production, indicates that intermediate Part 710 of the CWCR (List of States
UDOCs used in a single or multi-step ‘‘production by synthesis’’ to mean
‘‘production of a chemical from its Parties to the CWC)
process to produce another declared
UDOC are not subject to declaration reactants.’’ This definition replaces the This rule amends Supplement No. 1
requirements under the CWCR. definition of the term ‘‘synthesis’’ in to part 710 of the CWCR (States Parties
In addition, this rule adds a definition § 710.1 of the CWCR. In addition, a new to the Convention on The Prohibition of
of the term ‘‘advance notification’’ to Supplement No. 2 is added to Part 710 The Development, Production,
§ 710.1 of the CWCR to clarify the use of the CWCR to define the types of Stockpiling, and Use of Chemical
of that term in part 712 of the CWCR. production covered under the CWCR. Weapons and on Their Destruction) by
Section 710.1 of the CWCR defines This rule also amends § 710.1 of the updating the list of States Parties to
‘‘advance notification’’ to mean ‘‘a CWCR to add a definition of the term include the following recent additions:
notice informing BIS of a company’s ‘‘protective purposes,’’ as it relates to Afghanistan, Andorra, Antigua and
intention to export to or import from a Schedule 1 chemicals, stating that Barbuda, Azerbaijan, Belize, Bhutan,
State Party a Schedule 1 chemical.’’ protective purposes means any purpose Cambodia, Cape Verde, Chad, Colombia,
Advance notifications must be directly related to protection against Democratic Republic of the Congo,
submitted to BIS at least 45 days prior toxic chemicals and to protection Djibouti, Dominica, Eritrea, Gabon,
to the proposed export or import, except against chemical weapons. Grenada, Guatemala, Haiti, Honduras,
for exports or imports of 5 milligrams or Jamaica, Kazakhstan, Kiribati,
Finally, this rule amends § 710.1 of Kyrgyzstan, Liberia, Libya, Madagascar,
less of saxitoxin for medical/diagnostic
the CWCR by adding a definition of the Malaysia, Marshall Islands, Micronesia
purposes which may be submitted to
term ‘‘transient intermediate’’ in order (Federated States of), Mozambique,
BIS at least 3 days prior to export or
to clarify the scope of the declaration Nauru, Niue, Palau, Rwanda, Saint Kitts
import. The definition contained in this
requirements that apply to the and Nevis, Saint Vincent and the
rule also indicates that this notification
requirement is in addition to any export production of certain scheduled Grenadines, Samoa, San Marino, Sao
license requirement under the Export chemicals. Section 710.1 of the CWCR Tome and Principe, Serbia and
Administration Regulations (EAR) (15 defines the term ‘‘transient Montenegro, Sierra Leone, Solomon
CFR Parts 730–799) or the International intermediate’’ to mean ‘‘any chemical Islands, Thailand, Timor Leste, Tonga,
Traffic in Arms Regulations (ITAR) (22 that is produced in a chemical process, Tuvalu, Uganda, United Arab Emirates,
CFR Parts 120–130), or import license but that only exists for a very short Vanuatu, Yemen, and Zambia. As of
requirement under the Alcohol, period of time and cannot be isolated, March 25, 2006, 178 countries had
Tobacco, Firearms and Explosives even by modifying or dismantling the become States Parties to the CWC.
Regulations (27 CFR part 447). plant, altering the chemical production
The definition of the term process operating conditions, or E. Amendments to Part 711 of the
‘‘production’’ in § 710.1 of the CWCR is stopping the chemical production CWCR (General Information Regarding
revised by adding certain notes that process altogether.’’ Declaration, Reporting and Advance
incorporate decisions by the Notification Requirements)
B. Amendments to Section 710.2 of the
Organization for the Prohibition of CWCR (Scope of the CWCR) This rule adds a new § 711.3 that
Chemical Weapons’ Conference of the establishes BIS’s authority to contact
States Parties (OPCW/CSP) regarding This rule amends § 710.2(a) of the any company to determine whether it is
the production of Schedule 1, 2, and 3 CWCR by removing the phrase ‘‘The in compliance with the CWCR.
chemicals. The first note clarifies that CWCR declaration, reporting, and Information requested may relate to the
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the production of Schedule 1 chemicals inspection requirements apply * * *’’ production, processing, consumption,
includes ‘‘formation through chemical from that paragraph. Removal of this export, import, or other activities
synthesis as well as processing to phrase clarifies which persons and involving scheduled chemicals and
extract and isolate Schedule 1 facilities are generally subject to the UDOCs described in Parts 712 through
chemicals.’’ The second note clarifies provisions of the CWCR. 715 of the CWCR. Any person or facility

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24920 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

subject to the CWCR and receiving such declared facility, you must submit an reports. Section 712.7 of the CWCR is
a request for information will be amended declaration to BIS at least 200 amended by clarifying and specifying
required to provide a response to BIS calendar days prior to making any such deadlines for: (1) The types of changes
within the time-frame specified in the change to your facility. to information on Schedule 1 chemicals
request. However, this requirement does This rule revises § 712.3 of the CWCR and activities in the Annual Declaration
not, in itself, impose a requirement to by moving the annual declaration of Past Activities that would require
create new records or maintain existing requirements for Schedule 1 facilities to submission of an amended declaration
records. new § 712.5. to BIS; (2) the types of changes to export
This rule amends § 711.3 of the CWCR This rule amends § 712.4 of the CWCR or import information in the Annual
by moving it to § 711.4 and specifying to clarify the declaration requirements Reports on Exports and Imports from
a time period within which BIS will that apply to the establishment of new undeclared facilities, trading companies
respond to chemical determination Schedule 1 chemical production and U.S. persons that would require
requests. BIS will respond, in writing, to facilities. If a Schedule 1 chemical submission of an amended report to BIS;
a chemical determination request within production facility has never been and (3) the types of changes to Schedule
10 working days of receipt of the declared in a previous calendar year or 1 chemical facility information (e.g.,
request. its initial declaration has been change in company name, address,
This rule removes the declaration and withdrawn in accordance with the declaration point of contact, ownership)
reporting requirements in § 711.4 of the requirements of amended § 712.5(g) of that would require submission of an
CWCR concerning activities that this rule, you must submit an initial amended declaration or report to BIS. In
occurred prior to December 30, 1999, declaration (including a current detailed addition, this rule adds a new § 712.7(d)
since these requirements should already technical description of the facility) to to the CWCR that provides guidance
have been satisfied. A new § 711.7 is BIS at least 200 calendar days prior to concerning the submission of
added to provide information on where commencing production of Schedule 1 inspection-related amendments.
to submit declarations, advance chemicals at the facility in quantities Amended declarations, based on the
notifications, and reports. greater than 100 grams aggregate per final inspection report, must be
This rule also adds a new § 711.8 that year. Such facilities are considered to be submitted to BIS within 45 calendar
contains instructions for applying for ‘‘new Schedule 1 chemical production days of the date of BIS’s post-inspection
authorization to submit electronic facilities’’ and are subject to an initial letter.
declarations and reports through the inspection within 200 calendar days of This rule adds a new § 712.8 to the
Web-Data Entry System for Industry the submission of the initial declaration CWCR that provides guidance
(WebDESI). This electronic submission to BIS. concerning certain Schedule 1
procedure fulfills the requirements of This rule revises the remainder of part declarations and reports that are
the Government Paperwork Elimination 712 of the CWCR, as follows: (1) returned without action. In these cases,
Act (44 U.S.C. 3504). Advance notification and annual report BIS would return without action (RWA)
requirements for Schedule 1 chemical any Schedule 1 declarations or reports
F. Amendments to Part 712 of the
exports and imports are moved from that are determined to be not required
CWCR (Activities Involving Schedule 1
§ 712.5 of the CWCR to § 712.6; (2) by the CWCR. The returned declaration
Chemicals)
provisions for Table 1 to § 712.6 of the or report would be accompanied by a
This rule adds a new § 712.2(a) that CWCR are moved to new Supplement cover letter explaining why the
prohibits the production of Schedule 1 No. 2 to part 712 of the CWCR; (3) declaration or report is being returned
chemicals for protective purposes, as procedures concerning declarations and without action. BIS would retain a copy
defined in § 710.1 of the CWCR. This reports returned without action by BIS of the RWA letter, but would not
change is consistent with the provisions are described in new § 712.8 of the maintain copies of any declarations or
in Part VI of the CWC Annex on CWCR; and (4) the due date for Annual reports that were returned without
Implementation and Verification (the Declarations for Anticipated Activities action.
‘‘Verification Annex’’) that describe is changed from August 3 to September Finally, the provisions previously
production activities not prohibited 3, thereby giving Schedule 1 facilities an contained in § 712.6 and Table 1 to
under the CWC. These provisions additional 30 days in which to complete § 712.6 of the CWCR, which provided
restrict production of Schedule 1 and submit their declarations. information on the deadlines for
chemicals for protective purposes to a This rule amends the CWCR submitting Schedule 1 declarations,
single small-scale facility approved by provisions that require advance reports, advance notifications and
the State Party and one facility outside notification of exports and imports of amendments to BIS, are updated and
of a single small-scale facility, which Schedule 1 chemicals by establishing an moved to new § 712.9 and new
also must be approved by the State exception to the requirement that BIS Supplement No. 2 to part 712 of the
Party. The only two facilities in the must be notified at least 45 calendar CWCR, respectively.
United States authorized to produce days prior to the export or import of a
Schedule 1 chemicals for protective Schedule 1 chemical to or from another G. Amendments to Part 713 of the
purposes are owned and operated by the State Party. Advance notification of the CWCR (Activities Involving Schedule 2
U.S. Department of Defense—these export or import of 5 milligrams or less Chemicals)
facilities are not subject to the CWCR, of Saxitoxin—B(7), which is listed in This rule adds a prohibition against
pursuant to § 710.2(a)(1)(i). Therefore, Supplement No. 1 to part 712 of the exports of Schedule 2 chemicals to
all facilities subject to the CWCR are CWCR, for medical or diagnostic States not Party to the CWC in
prohibited from producing Schedule 1 purposes only, must be submitted to BIS § 713.1(a). Prior to the publication of
chemicals for protective purposes. at least 3 calendar days (rather than 45 this rule, the CWCR prohibited imports
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This rule also clarifies that initial calendar days) prior to the date of of Schedule 2 chemicals from States not
declarations submitted in February 2000 export or import. Party to the CWC, but did not prohibit
remain valid until they are either This rule amends the CWCR exports of Schedule 2 chemicals to such
amended or rescinded. If you plan to provisions concerning requirements for countries. Section 742.18 of the EAR
alter the technical layout of your amending Schedule 1 declarations and requires a license to export Schedule 2

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Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations 24921

chemicals to States not Party to the transient intermediates are exempted. submitting Schedule 2 declarations,
CWC and BIS applies a general policy This clarification will ensure that the reports, and amendments to BIS, are
of denial to license applications for such CWCR requirements apply to Schedule updated and moved to § 713.7 and
exports. A license is also required to 2 chemical production where Schedule Supplement No. 2 to part 713 of the
export Schedule 2 chemicals that are 2 chemicals are below the applicable CWCR, respectively.
controlled under the ITAR. concentration threshold when reacted,
This rule revises § 713.1(b), which H. Amendments to Part 714 of the
but subsequently are concentrated above
exempts certain mixtures containing CWCR (Activities Involving Schedule 3
the threshold during in-line processing.
Schedule 2 chemicals from the export The provisions previously included in Chemicals)
and import prohibitions contained in § 713.6 and Table 1 to § 713.6 of the This rule amends § 714.1 of the CWCR
§ 713.1(a) of the CWCR, as amended by CWCR, which contained information on by removing the provisions that
this rule. Prior to the publication of this the deadlines for submitting addressed the past production of
rule, Section 713.1(b) of the CWCR declarations, reports, advance Schedule 3 chemicals. This section now
exempted mixtures containing 10 notifications, and amendments to BIS, contains the annual declaration
percent or less, by weight, of any single are moved to § 713.7 and new requirements for Schedule 3 chemicals
Schedule 2 chemical. This rule revises Supplement No. 2 to part 713 of the that were previously described in
§ 713.1(b) of the CWCR to exempt the CWCR, respectively. In addition, the § 714.2 of the CWCR. This section
following mixtures: (i) Mixtures CWCR provisions on amended clarifies the scope of Schedule 3
containing 1 percent or less, by weight, declarations and reports for Schedule 2 production activities, as defined by the
of any single Schedule 2A or 2A* chemicals are moved from § 713.7 of the CWCR, to include any associated
chemical; (ii) mixtures containing 10 CWCR to § 713.5 and amended by processing steps of a Schedule 3
percent or less, by weight, of any single clarifying and specifying deadlines for: chemical and intermediates. Only
Schedule 2B chemical; and (iii) (i) The types of changes to information transient intermediates are exempted.
products identified as consumer goods on Schedule 2 chemicals and activities This ensures that the CWCR
packaged for retail sale for personal use in the Annual Declaration of Past requirements apply to Schedule 3
or packaged for individual use. Activities or the combined declaration chemical production where Schedule 3
However, note that the consumer goods and report that would require chemicals are below the applicable
exemption for mixtures that contain submission of an amended declaration concentration threshold when reacted,
Schedule 2 chemicals identified under to BIS; (ii) the types of changes to export but subsequently are concentrated above
ECCN 1C350 on the CCL (Supplement or import information in the Annual the threshold during processing.
No. 1 to part 774 of the EAR) applies Reports on Exports and Imports from Section 714.1 of the CWCR is also
only to products identified as consumer undeclared facilities, trading companies amended to clarify the procedures that
goods packaged for retail sale for and U.S. persons that would require must be followed when determining the
personal use and not to products submission of an amended report to BIS; range of Schedule 3 chemical
packaged for individual use (the latter and (iii) the types of changes to production for your plant site during the
are exempt only by the CWCR and not Schedule 2 chemical facility previous calendar year. Specifically,
by the Australia Group controls under information (e.g., change in company this rule includes a statement in
the EAR). name, address, declaration point of § 714.1(c)(1) of the CWCR to indicate
In addition, this rule: (i) Removes the contact, ownership) that would require that you should not aggregate amounts
provisions concerning declarations on submission of an amended declaration of production from plants on your plant
past production of Schedule 2 or report to BIS. This rule also moves site that did not individually produce a
chemicals for chemical weapons § 713.6(d) of the CWCR to § 713.5(d) and Schedule 3 chemical in an amount
purposes (previously found in § 713.2 of revises it to provide guidance exceeding the applicable declaration
the CWCR); (ii) removes the provisions concerning the submission of threshold (i.e., greater than 30 metric
concerning Schedule 2 initial inspection-related amendments. tons). In short, only the production
declarations and initial reports on Amended declarations, based on the amounts from those plants on your
exports and imports (previously found final inspection report, must be plant site that individually produced
in §§ 713.3(a)(1)(i) and 713.4(c)(1) and submitted to BIS within 45 calendar greater than 30 metric tons of a
(c)(2) of the CWCR); (iii) amends the days of the date of BIS’s post-inspection Schedule 3 chemical should be
provisions providing guidance letter. aggregated for the purpose of calculating
concerning amendments to declarations This rule amends § 713.6 of the CWCR the total amount of a Schedule 3
and reports (previously found in § 713.7 to provide information concerning the chemical produced at your plant site
of the CWCR); (iv) moves the provisions return of certain Schedule 2 during the previous calendar year.
concerning the frequency and timing of declarations and reports without action. This rule also amends § 714.2 of the
declarations and reports (previously BIS will RWA (Return Without Action) CWCR by removing outdated Schedule
found in § 713.6 of the CWCR) to any Schedule 2 declarations or reports 3 initial declaration and reporting
§ 713.7; and (v) provides a description that are determined not to be required requirements and by including the
of the procedures that BIS will follow by the CWCR. The returned declaration annual reporting requirements for
concerning declarations and reports or report will be accompanied by a exports and imports of Schedule 3
RWA’d in § 713.6 of the CWCR. cover letter explaining why the chemicals that were previously
This rule moves the Schedule 2 declaration or report is being returned described in Section 714.3 of the CWCR.
chemical annual declaration without action. BIS will retain a copy of Section 714.3 of the CWCR is amended
requirements previously described in the RWA letter, but will not maintain to include the advance declaration
§ 713.3 of the CWCR to § 713.2 and copies of any declarations or reports requirements for additionally planned
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amends this section to clarify that the that are returned without action. production of Schedule 3 chemicals that
scope of Schedule 2 production Finally, the provisions previously were previously described in § 714.4 of
activities includes any associated contained in § 713.6 and Table 1 to the CWCR.
processing steps of the Schedule 2 § 713.6 of the CWCR, which provided In addition, this rule amends Section
chemical and intermediates. Only information on the deadlines for 714.4 of the CWCR to include the

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24922 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

requirements for amending Schedule 3 PSF chemicals at your plant site during return of certain UDOC declarations
declarations and reports that were the previous calendar year. Specifically, without action. BIS will RWA any
previously described in § 714.6 of the this rule indicates that, when UDOC declarations that are determined
CWCR. This section is also amended to determining the quantity of each PSF not to be required by the CWCR. The
clarify and specify the deadlines for: (i) chemical produced by a PSF plant on returned declaration will be
The types of changes to information on your plant site, you should only accompanied by a cover letter
Schedule 3 chemicals and activities in aggregate the PSF chemical production explaining why the declaration is being
the Annual Declaration of Past quantities from plants that individually returned without action. BIS will retain
Activities or the combined declaration produced a PSF chemical in an amount a copy of the RWA letter, but will not
and report that would require exceeding 30 metric tons. However, note maintain copies of any declarations that
submission of an amended declaration that § 715.1(a)(1)(i) indicates that, when are returned without action.
to BIS; (ii) the types of changes to export determining UDOC production by Finally, this rule amends part 715 of
or import information in the Annual synthesis on your plant site, you should the CWCR by adding a new § 715.4 and
Reports on Exports and Imports from aggregate all quantities of UDOCs and a new Supplement No. 3 to part 715 to
undeclared facilities, trading companies PSF chemicals produced, regardless of provide updated information on the
and U.S. persons that would require the amount of PSF chemicals produced deadlines for submitting UDOC
submission of an amended report to BIS; (i.e., aggregate any PSF chemicals declarations and amendments to BIS.
and (iii) the types of changes to produced). Information on the deadlines for
Schedule 3 chemical facility This rule also revises § 715.1(b)(1) of submitting UDOC declarations was
information (e.g., change in company the CWCR by removing the initial previously provided in § 715.2 and
name, address, declaration point of declaration requirement and replacing it Table 1 to § 715.2 of the CWCR.
contact, ownership) that would require with the annual declaration requirement
J. Amendments to Part 716 of the CWCR
submission of an amended declaration and adding a new subsection that
(Initial and Routine Inspections of
or report to BIS. In addition, this rule provides for a new form called the ‘‘No
Declared Facilities)
amends the CWCR to provide guidance Changes Authorization’’ form. This form
in § 714.4(d) concerning the submission may be submitted to BIS if there are no As part of their obligation under the
of inspection-related amendments. updates or changes to any information Convention, each State Party to the
Amended declarations, based on the (other than the certifying official and CWC is subject to inspection of its
final inspection report, must be dates signed and submitted) contained chemical facilities engaged in certain
submitted to BIS within 45 calendar in the annual declaration on past activities involving scheduled
days of the date of BIS’s post-inspection activities previously submitted by your chemicals. Part 716 of the CWCR
letter. plant site. Section § 715.1(b)(2) of the provides general information about the
This rule amends § 714.5 of the CWCR CWCR also indicates that, when you conduct of initial and routine
to provide information concerning the submit a ‘‘No Changes Authorization’’ inspections of declared facilities subject
return of certain Schedule 3 form to BIS, your plant site’s UDOC to inspection under CWC Verification
declarations and reports without action. activities will continue to be declared to Annex Part VI (E), Part VII (B), Part
BIS will RWA (Return Without Action) the OPCW and your plant site will VIII(B), and Part IX(B).
any Schedule 3 declarations or reports remain subject to inspection (if This rule amends § 716.2(a)(2)(i) of
that are determined not to be required applicable) based upon the data the CWCR to clarify that a facility
by the CWCR. The returned declaration reported in your previous (i.e., most agreement will be concluded by the U.S.
or report will be accompanied by a recent) annual declaration on past National Authority (in coordination
cover letter explaining why the activities. with BIS) with the OPCW before a new
declaration or report is being returned This rule amends § 715.2 of the CWCR Schedule 1 facility, declared pursuant to
without action. BIS will retain a copy of to include requirements for amending § 712.4 of the CWCR, can produce above
the RWA letter, but will not maintain UDOC declarations—these requirements threshold.
copies of any declarations or reports were previously described in § 715.3 of This rule amends § 716.4(b)(1) of the
that are returned without action. the CWCR. This section is also amended CWCR to clarify the scope of
Finally, this rule amends § 714.6 of by clarifying or specifying the deadlines inspections by specifying that
the CWCR and adds a new Supplement for: (i) The types of changes to inspections under part 716 of the CWCR
No. 2 to part 714 of the CWCR to information on UDOCs and activities in may include visual inspection of parts
provide updated information on the the Annual Declaration of Past or areas of the plant site, in addition to
deadlines for submitting Schedule 3 Activities that would require the facilities or plants producing
declarations, reports, and amendments submission of an amended declaration scheduled chemicals, in order to
to BIS. Information on the deadlines for to BIS and (ii) the types of changes to address any ambiguity that might arise
submitting Schedule 3 declarations and UDOC plant information (e.g., change in during the inspection. In addition,
reports was previously provided in company name, address, declaration photographs may be taken and formal
§ 714.5 and Table 1 to § 714.5 of the point of contact, ownership) that would interviews of facility personnel may be
CWCR. require submission of an amended conducted. The Host Team Leader is
declaration to BIS. In addition, this rule responsible, as described in Section
I. Amendments to Part 715 of the CWCR amends the CWCR to provide guidance 716.4(b)(2) of the CWCR, for
(Activities Involving Unscheduled in § 715.2(c) concerning the submission determining whether the Inspection
Discrete Organic Chemicals (UDOCs)) of inspection-related amendments. Team’s request to inspect any area,
This rule amends § 715.1(a)(1)(ii) Amended declarations, based on the building, item or record is reasonable—
(which describes the annual declaration final inspection report, must be such determinations are made on the
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requirements for the production of submitted to BIS within 45 calendar basis of treaty requirements. Verification
UDOCs containing the elements days of the receipt of BIS’s post- activities under the CWCR are carried
phosphorus, sulfur or fluorine, referred inspection letter. out at declared plant sites—access to
to as ‘‘PSF chemicals’’) to clarify how to This rule amends § 715.3 of the CWCR other parts of a plant site will be
calculate the production by synthesis of to provide information concerning the provided in a manner sufficient to

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clarify for the Inspection Team any on the final inspection report to BIS, Section 717.3 of the CWCR, which
ambiguities that arise during an and BIS will consider those comments, describes requirements concerning the
inspection and in accordance with the to the extent possible, when provision of samples by declared
facility agreement. commenting on the final report. BIS will facilities, is revised to restrict analysis
Section 716.4(b)(3) of the CWCR is also send facilities a post-inspection of samples to verifying the presence or
amended to indicate that: (i) Technology letter with instructions based on absence of scheduled chemicals or
subject to the ITAR shall not be decisions made during the inspection. appropriate degradation products,
divulged to the Inspection Team Finally, this rule removes and unless agreed otherwise.
without U.S. Government authorization reserves Supplement Nos. 2 and 3 of Finally, this rule adds a new § 717.5
and (ii) each facility that is inspected is Part 716 of the CWCR, which included to clarify that, upon receipt of the final
responsible for identifying ITAR- the model facility agreement for inspection report from the OPCW, BIS
controlled technology to the BIS Host Schedule 1 chemicals and Schedule 2 will forward a copy to the facility, for
Team, if known. The extent to which chemicals, respectively. comment, and will give consideration to
ITAR controls the transfer of technology the facility’s comments prior to
K. Amendments to Part 717 of the
to foreign nationals is not affected by responding to the OPCW via the U.S.
CWCR (CWC Clarification Procedures:
the CWCR—all inspection-related National Authority. In addition, Section
Consultations and Challenge
activities conducted under the CWCR 717.5 provides that, upon receipt of the
Inspections)
must comply with any applicable ITAR final inspection report, BIS will send
requirements. Article IX of the CWC contains the facility a post-inspection letter
This rule also clarifies the pre- procedures for States Parties to clarify detailing the issues that require follow-
inspection briefing requirements issues concerning compliance with the up action.
described in § 716.4(c) of the CWCR and CWC. A State Party may request the
the requirements in § 716.4(e) of the OPCW to conduct an on-site challenge L. Amendments to Part 719 of the
CWCR concerning the availability of inspection of any facility or location in CWCR (Enforcement)
records. The U.S. facility must provide the territory or in any other place under This rule amends part 719 of the
the Inspection Team and the U.S. the jurisdiction or control of any other CWCR to clarify that the scope of
Government Host Team with State Party. A challenge inspection may violations under the Chemical Weapons
appropriate accommodations in which be conducted solely for the purpose of Convention Implementation Act (the
to review relevant documents and must clarifying and resolving any questions Act) includes willfully failing or
ensure that all relevant information will concerning possible non-compliance refusing to permit access to or copying
be available to the teams. In addition, with the CWC. of ‘‘any record’’ required to be
this rule provides that, whenever the This rule amends § 717.1(b) of the established or maintained by the Act or
current owner of a declared facility does CWCR to clarify that BIS will attempt to the CWCR—not just those records
not have access to records for activities contact a person or facility that is exempt from disclosure under the Act or
that took place under a previous owner subject to the Article IX clarification the CWCR, as previously stated in
of the facility, because such records procedures as early as practicable, prior section 719.2(a)(2)(iii) of the CWCR. In
were not transferred to the current to issuing an official written request for addition, this rule amends the civil and
owner of the facility by the previous clarification, and that such person or criminal penalty provisions in sections
owner (e.g., as part of the contract facility must provide the information 719.2(b)(2) and 719.2(c), respectively, to
involving the sale of the facility), the required by BIS, pursuant to an Article make the same clarification, with
previous owner must make such records IX clarification request, within five respect to the penalties that may be
available to the Host Team (for working days of the receipt of BIS’s assessed for violations of the
provision to the Inspection Team). written request for clarification. recordkeeping requirements in the Act
However, the current owner of a facility, In addition, this rule amends § 717.2 or the CWCR.
upon receiving notification of an (Challenge Inspections) by adding a new
provision in § 717.2(b)(2)(ii) explaining M. Amendments to Part 721 of the
inspection, is responsible for informing
that, if consent is not granted within CWCR (Inspection of Records and
BIS if the previous owner did not
four hours of a facility’s receipt of BIS’s Recordkeeping)
transfer records for activities that took
place under the previous ownership— inspection notification, BIS will assist This rule amends part 721 of the
this will allow BIS to contact the the Department of Justice in seeking a CWCR to clarify the circumstances
previous owner of the facility, to arrange criminal warrant. Another new under which the previous owner of a
for access to such records, if BIS deems provision, i.e., § 717.2(d)(5), is added to declared facility must retain supporting
them relevant to the inspection describe the requirements concerning materials and documentation in
activities. pre-inspection briefings for challenge accordance with the requirements of
Section 716.7 of the CWCR, which inspections. Section 717.2(d)(5) requires section 721.2. Specifically, section
described requirements concerning the that, prior to the commencement of the 721.2(a) is amended to clarify that, if a
provisions of samples by declared challenge inspection, facility declared facility is sold, the previous
facilities, is revised to restrict the representatives must provide the owner of the facility must retain all
analysis of such samples of the Inspection Team and Host Team with a supporting materials and
verification of the absence of undeclared pre-inspection briefing on the facility documentation that were not transferred
scheduled chemicals, unless otherwise that will include the following: (i) The to the current owner of the facility (e.g.,
agreed after consultation with the types of activities being conducted at as part of the contract involving the sale
facility representative. the facility (e.g., business and of the facility); otherwise, the current
In addition, this rule adds a new manufacturing operations); (ii) safety owner of the facility is responsible for
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§ 716.10 to clarify that, upon receipt of procedures that must be followed retaining such supporting materials and
the final inspection report from the during the inspection; and (iii) documentation. Whenever the previous
OPCW, BIS will send a copy of the final administrative and logistical owner of a declared facility retains such
inspection report to the facility for its arrangements necessary to facilitate the supporting materials and
review. Facilities may submit comments inspection. documentation, the owner must inform

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24924 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

BIS of any subsequent change in address by synthesis that have been isolated for aware of: (1) ‘‘additional plants’’ on the
or other contact information, so that BIS use or sale as a specific end product. plant site producing a Schedule 3
will be able to contact the previous chemical or (2) the production of an
B. Section 711.3 ‘‘Compliance Review’’
owner of the facility, to arrange for ‘‘additional chemical’’ at a plant already
access to such records, if BIS deems Comments: Two respondents noted reporting under the plant site. The
them relevant to inspection activities that they believe BIS already had the respondent requested that BIS provide
involving the facility. authority to conduct compliance clarification, by way of examples, of the
reviews under the CWCR. They circumstances under which changes to
II. Summary of Public Comments on the acknowledged the need for the the ‘‘purpose’’ of Schedule 3 production
December 7, 2004, Proposed CWCR Rule compliance review element, but would require submission of an
On December 7, 2004, BIS published suggested that BIS provide companies amended declaration to BIS.
a rule in the Federal Register (69 FR 30 days to respond to requests for Response: Section 714.4(a) of the
70754), with a request for comments, information under new Section 711.3 of proposed rule required that an
that proposed amendments to the CWCR the CWCR. amendment be submitted to BIS within
to update the CWCR (by adding new Response: BIS’s objective has been, 15 days of any change in: (1) The types
requirements identified since the and will continue to be, to minimize the of Schedule 3 chemicals produced, (2)
implementation of the CWC) and clarify burden of companies to comply with the the production range of Schedule 3
certain other CWC requirements. BIS CWCR, while at the same time ensuring chemicals (as specified in the CWCR),
received comments from five that individual companies and the (3) the purpose of Schedule 3 chemical
respondents. Following is a summary of United States comply with the terms of production, and (4) the addition of new
those comments, along with BIS’s the CWC and the CWC Implementation plant(s) for producing Schedule 3
responses. The comments are organized Act. In response to comments received, chemicals. To eliminate any uncertainty
by regulatory section, with similar BIS has revised the regulation to state concerning whether or not a change in
comments grouped under the same that, if BIS makes a request pursuant to a single type of information identified in
section heading. new Section 711.3 of the CWCR, BIS Section 714.4(a) (e.g., the ‘‘purpose’’ of
will provide companies 30 days to Schedule 3 chemical production) would
A. Section 710.1 ‘‘Definitions of Terms
respond to such request. require submission of an amendment,
Used in the Chemical Weapons Comments: One respondent stated
Convention Regulations (CWCR)’’ BIS clarified the language in Section
that those companies, which have some 714.4(a) of the proposed rule by revising
Comments: One respondent sites that are subject to declaration the phrase, ‘‘You must submit an
questioned the definition of requirements under the CWCR and amended declaration or report to BIS
‘‘production by synthesis’’ set forth in other sites that are not, should not be within 15 days of any change in the
the regulation. The respondent stated required to keep records that following information * * *,’’ in the
that, ‘‘Production by synthesis means substantiate activities at an undeclared introductory text of paragraph (a), to
production of a chemical that is isolated site for purposes of compliance. read, ‘‘You must submit an amended
for use or sale.’’ The respondent further Response: Section 711.3 of the CWCR declaration or report to BIS within 15
stated that, ‘‘’synthesis’’ chemically does not require companies to maintain days of determining that there has been
means production of a chemical from its records other than those they would a change in any of the following
reactants. (See Wikipedia, ‘‘Chemical normally maintain, pursuant to regular information that you have previously
Synthesis,’’ http://en.wikipedia.org/ business practices or pursuant to declared or reported * * *’’. BIS also
wiki/Chemical_synthesis). It is applicable CWCR requirements. clarified that section by replacing the
distinguished by production of a word ‘‘and,’’ at the end of paragraph
saleable product by another means, such C. Section 714.4(a) ‘‘Changes to
Information That Directly Affects a (a)(3), with the word ‘‘or.’’ These
as processing or biological mediation.’’ changes to Section 714.4(a) clearly
The respondent suggested that, perhaps, Declared [Schedule 3] Plant Site’s
Annual Declaration of Past Activities or indicate that a change in any one of the
BIS omitted a definition or four types of information listed therein
inappropriately transposed the order of Combined Annual Declaration or Report
Which Was Previously Submitted to would require the submission of an
the definitions of ‘‘production’’ and amendment to BIS within 15 days from
‘‘production by synthesis.’’ The BIS’’
the date that a company determines
respondent stated that the definition of Comments: One respondent requested such a change has occurred. For
synthesis, in any case, has a ‘‘very that BIS clarify the circumstances under example, if a plant site declares
specific connotation under the CWC; which the proposed requirement in consumption (‘‘In-line consumption as
e.g., UDOCs have to be ‘produced by Section 714.4(a) would apply to changes produced (captive use)’’) of a Schedule
synthesis’ (Verification Annex, Part IX, in the ‘‘purpose’’ of Schedule 3 3 chemical as the only ‘‘purpose’’ of
A.1.(b))’’ and that this ‘‘connotation’’ is chemical production. Section 714.4(a) of production in its declaration on past
not reflected in the revised regulation. the proposed rule stated that an activities, but later learns that the
Response: The definition of amended declaration or report must be chemical was also sold to another
‘‘production by synthesis’’ has been submitted to BIS within 15 days of a company in the United States, the plant
revised in this final rule to mean change in the ‘‘types’’ of Schedule 3 site must submit an amendment to its
‘‘production of a chemical from its chemicals produced, the ‘‘production declaration, declaring the additional
reactants.’’ This definition is consistent range’’ for these chemicals (as specified end-use (i.e., transfer to another
with language used in the interim in the CWCR), the ‘‘purpose’’ of such company or industry), within 15 days of
CWCR, which has been applied since production, and the addition of ‘‘new having determined that the chemical
the CWC entered into force in the plants’’ for Schedule 3 chemical was transferred, as well as consumed.
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United States and has been deemed production. The respondent stated that
Note: In contrast to the amendment
consistent with CWC requirements information on the ‘‘purpose’’ of requirements in Section 714.4(a) of the
through application and practice. Note production appeared to be ancillary to CWCR, Section 714.3(a)(2) states that a
that Section 715.1(a)(2) of the CWCR and only needed under the remote ‘‘Declaration on Additionally Planned
establishes criteria for UDOCs produced circumstance that a plant site becomes Activities’’ is not required to change

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anticipated end-use(s) of a chemical (i.e., that ‘‘advance consent’’ could be requirements. Verification activities are
purposes of production), unless there are indicated by submission of a letter from carried out at declared ‘‘plant sites.’’
other anticipated changes that must be the owner to BIS that would provide The CWC states that the focus of
declared, as specified in Section 714.3(a)(1)(i) ‘‘advance consent.’’ The respondent inspections shall be the declared plant
through (a)(1)(iv) of the CWCR (e.g., the
addition of a previously undeclared plant or stated that this mode of consent would (see CWC Part VII paragraph 25, Part
chemical). not diminish any rights under the rule VIII paragraph 20, and Part IX paragraph
to withdraw consent at any time. 17 for Schedule 2, Schedule 3 and
D. Sections 713.5(b)(5) and 714.4(b) Response: Section 305(a) of the UDOC inspections, respectively). These
‘‘Changes to Export or Import Chemical Weapons Convention activities are further described in the
Information Submitted in Annual Implementation Act (CWCIA) requires CWCR. Access to other parts of a plant
Reports on Exports and Imports From the United States Government to ‘‘seek site are provided in a manner sufficient
Undeclared Plant Sites, Trading the consent of the owner or the owner, to clarify, to the satisfaction of the
Companies and U.S. Persons’’ operator, occupant, or agent in charge of Inspection Team, any ambiguities that
the premises to be inspected prior to arise during an inspection. Managed
Comments: Two respondents any inspection * * *’’ (See 22 U.S.C. access is a means through which access
commented on the proposed end-use 6701, 6725, Pub. L. 105–277, Section to other parts of a plant site is
information requirements in Sections 305(a)). BIS has made a conservative controlled, and it cannot be narrowly
713.5(b)(5) and 714.4(b)(5) of the CWCR, interpretation of this requirement and defined.
as they apply to changes to Schedule 2 therefore seeks actual consent from the
and Schedule 3 annual reports authorized owner, operator or agent in G. Section 716.4(b)(2) ‘‘Scope of
previously submitted to BIS. One charge, after notification, prior to every Consent’’
respondent noted that the CWCR do not inspection. We have adopted this Comments: One respondent stated
require that information on end-use be interpretation to ensure that the rights that there is no mention of the facility’s
included in an Annual Report of bestowed on the public by the CWCIA role in determining whether or not an
Exports or Imports. Both respondents are fully addressed. Accordingly, BIS Inspection Team’s request for access is
asked BIS to indicate whether the end- will not adopt a method for the reasonable. The respondent stated that
use information requirements in submission of advance consent to input from the inspected facility is
Sections 713.5(b)(5) and 714.4(b)(5) of inspections. crucial to any determination made by
the CWCR were added to these sections the Host Team with regard to access and
in error or, if they were added F. Section 716.4(b)(1) ‘‘Description of other inspection activities. The
intentionally, to clarify the purpose of Inspections’’ respondent, therefore, suggested that
the requirements. Comments: One respondent stated Section 716.4(b)(2) should be revised to
Response: BIS has determined that the that the use of the word ‘‘may,’’ in the read as follows:
requirement to submit end-use context of the areas that can be included ‘‘The Host Team Leader will make the
information was inadvertently included in a visual inspection, creates determination of whether the Inspection
in sections 714.4 and 713.5 of the CWCR uncertainty with regard to those areas of Team’s request to inspect any area, building,
and has removed the requirement from a facility that are subject to inspection item or record is reasonable after
both of these sections. and those that are not. The respondent consultation with the owner, operator,
stated that visual inspection of areas occupant or agent in charge of a facility.’’
E. Section 716.3(a) ‘‘Consent to
outside the declared plant site should be Response: The Host Team Leader, as
Inspections; Warrants for Inspections’’
required only if there are no other the representative of the United States
Comments: One respondent stated means of clarifying an ambiguity. The during an inspection, has the sole
that the regulations should provide respondent asserted that BIS should responsibility for determining whether a
companies with the option of giving provide clarification in Section 716 of request made by the Inspection Team is
‘‘advance consent’’ to routine and the CWCR, or at least in the preamble reasonable and necessary. The
challenge inspections, as set forth in to the final rule, concerning which areas inspection being conducted at the
sections 716 and 717 of the CWCR, of the declared plant and plant site will facility is a U.S. Government-led
respectively. The respondent stated that be subject to visual inspection and inspection and therefore any interaction
such advance consent would become which areas may be subject to visual with the Inspection Team or decisions
effective upon issuance by the U.S. inspection. The respondent also made regarding the conduct of the
National Authority (USNA) of a written suggested that BIS should provide a inspection are wholly within the
notification of inspection, as specified more detailed explanation in Section province and authority of the U.S.
in Section 716.5(a)(2) of the CWCR. The 716 about managed access and other Government. As a courtesy, BIS has
respondent suggested that this option protections that may apply to made it a practice to consult with the
should allow the owner to choose inspections. facility prior to making these decisions.
whether to have the advance consent Response: BIS cannot provide a list of However, there is no obligation on the
expire at the end of a specified period areas that will be or may be subject to part of the U.S. Government to follow
of time or to have no expiration date. To visual inspection because each the instruction of, or await comment
implement this option, the respondent inspection is conducted differently from, the facility when considering an
suggested that BIS could include an within the limits of the CWC and the Inspection Team request. Therefore, BIS
‘‘advance consent’’ provision in the Act. As the representative of the United will not revise section 716.4 to reflect
annual declaration form that would States (Inspected State Party), the Host the respondent’s requested language.
allow the individual completing the Team Leader is responsible, as
form to check the appropriate boxes to described in section 716.4(b)(2), for H. Section 716.4(b)(3) ‘‘ITAR Controlled
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indicate whether or not ‘‘advance determining whether the Inspection Technology’’


consent’’ is given and, if so, whether Team’s request to inspect any area, Comments: One respondent stated
that consent will expire at a specified building, item or record is reasonable. that, in order to maximize the protection
time or have no expiration date. Such determinations are made by the of technology controlled for export
Alternatively, the respondent suggests Host Team Leader on the basis of treaty under the International Traffic in Arms

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24926 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

Regulations (ITAR) (22 CFR 120–130), upon former owners of declared must inform BIS of any subsequent
the first sentence of this section should facilities who were no longer subject to change in address or other contact
be revised to read as follows: the CWCR and suggested that BIS information, so that BIS will be able to
‘‘ITAR-controlled technology cannot be should amend this section of the CWCR contact the previous owner, to arrange
divulged to the Inspection Team without U.S. to clarify that, under any circumstances for access to the records, in the event
Government (USG) authorization regardless where the previous owner is obligated that BIS deems them relevant to
of the nationalities of the Inspection Team to maintain records, the five-year inspection activities involving the
members.’’ retention period described in Section facility.
Response: A key role for BIS, during 721.2(b) of the CWCR would apply.
CWC inspections of facilities, is to Response: Section 716.4(e) of the J. Section 716.10 ‘‘Post-Inspection
ensure that these inspections are CWCR does not obligate the previous Activities’’
conducted in a manner that does not owner of a declared facility to maintain Comments: Two respondents stated
adversely impact facility compliance duplicates of records that were
that the CWCR do not provide a time
with the requirements of the contractually transferred to the new
frame for the submission of a facility’s
International Traffic in Arms owner of the facility. The company that
comments on a final inspection report
Regulations (ITAR), which are legally owns the records after the sale is
responsible for retaining the records and from the OPCW. The respondents
administered by the U.S. Department of
making them available for inspection. suggested that BIS establish a time
State. The terms under which members
of the Inspection Team may have access Accordingly, there is no duplication of frame that coincides with the deadline
to ITAR-controlled technology and recordkeeping. Section 721.2(b) for the submission of inspection-related
information are subject to the provisions establishes a five year retention period amendments (45 calendar days).
of those regulations and the instructions for all supporting materials and Response: The respondents were
given to the Department of Commerce documentation related to compliance correct in noting that the CWCR do not
by the Department of State. The with the CWCR, so there are no open- establish a specific deadline for an
language proposed by the respondent ended record keeping obligations under inspected facility to submit comments
would materially affect the the CWCR. However, in order to clarify on a final inspection report. The CWC
implementation of those ITAR the recordkeeping requirements that requires that State Parties submit
provisions and, therefore, will not be apply to previous owners of declared comments on a final inspection report,
incorporated into the CWCR. facilities, BIS is amending Section to the Director-General of the Technical
Comments: Another respondent stated 716.4(e) to expressly indicate that, ‘‘if a Secretariat of the OPCW, not later than
that the procedures through which the facility does not have access to records 30 days following the completion of an
U.S. Government authorizes the release for activities that took place under
inspection. As a courtesy, BIS has
of ITAR technology during CWC previous ownership, because such
provided companies with the
inspections are unclear. The respondent records were not transferred to the
opportunity to review and comment on
requested that BIS clarify the current owner of the facility by the
previous owner (e.g., as part of the the inspection report, but is under no
procedures (if any) for authorizing the
contract involving the sale of the obligation to await or incorporate such
release of such technology.
Response: The CWCR do not alter the facility), the previous owner must make comments in the final submission to the
ITAR provisions or procedures (22 CFR such records available to the Host Team OPCW. However, BIS notes the utility of
120–130) as they apply to the transfer of for provision to the Inspection Team a deadline for the submission of
technology to foreign nationals. * * *.’’ The current owner of a facility, comments by facilities on the final
Procedurally, if there is no approval upon receiving notification of an inspection report. Therefore, BIS has
from the U.S. Department of State or its inspection, would be responsible for amended the CWCR to allow inspected
duly designated U.S. Government informing BIS if the previous owner did facilities a minimum of 7 working days,
representative for disclosure of ITAR not transfer records for activities that from the time they receive a copy of the
technology during an inspection, such took place under the previous final inspection report, to submit their
technology cannot be disclosed. ownership—this will allow BIS to comments on the report.
contact the previous owner of the
I. Section 716.4(e) ‘‘Records Review’’ facility, to arrange for access to such K. Part 717 ‘‘Challenge inspections’’
Comments: Two respondents records, if BIS deems them relevant to Comments: The same respondent,
commented on the requirement in the inspection activities. BIS is also who commented on adding a provision
Section 716.4(e) of the CWCR that, amending Section 721.2(a) of the CWCR, that would allow companies to supply
whenever the current owner of a consistent with the clarifications to advance consent for routine inspections
declared facility does not have access to Section 716.4, to specify that ‘‘in the
(see comments on Section 716.3(a),
records for activities that took place event that a declared facility is sold, the
above), suggested that BIS should also
under a previous owner of the facility, previous owner of the facility must
the previous owner must make such retain all * * * supporting materials provide for advance consent to
records available to the Host Team, for and documentation that were not challenge inspections.
provision to the Inspection Team. One transferred to the current owner of the Response: For the reasons stated in its
of the respondents said that, if facility (e.g., as part of the contract response to the respondent’s comments
contractually, records were transferred involving the sale of the facility)— on Section 716.3(a) of the CWCR, BIS
to the new owners of a facility subject otherwise, the current owner of the will not amend the CWCR to provide for
to the CWCR, the previous owners facility is responsible for retaining such the submission of advance consent to
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should not be obligated to maintain supporting materials and challenge inspections. (For further
duplicates of those records. Both documentation.’’ In addition, if the discussion of the basis for this decision,
respondents stated that this section of previous owner of a declared facility see the BIS response to the comments
the CWCR appeared to impose an decides to retain such supporting received for Section 716.3(a), above.)
indefinite recordkeeping obligation materials and documentation, the owner

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L. Section 717.2(a) and (b) ‘‘Warrants’’ the first paragraph under section (G), inspection findings. The total estimated
and ‘‘Notification of Challenge and delete the word ‘‘not’’ from the annual burden hours for this new
Inspection’’ phrase ‘‘not packaged for retail sale for amendment requirement would be 112
Comments: One respondent stated personal use,’’ in the last sentence of the hours and the total estimated annual
that the challenge inspection procedures second paragraph under section (G). cost would be $4,267. Note that the
in Part 717 of the proposed CWCR do Response: The word ‘‘prohibit,’’ in the estimated burden hours and cost for
second sentence of the first paragraph in inspection related amendments are
not contain provisions analogous to the
section (G), is intended to modify already included in the information
initial/routine inspection procedures in
‘‘Chemical Weapons Convention collection authorization from OMB.
either Section 716.3(a), which states that
Regulations.’’ Because the word Therefore, to avoid double counting the
the owner, operator, or agent in charge
‘‘regulations’’ is plural, the use of the information, it does not appear as a
of a facility may consent to an
word ‘‘prohibit’’ is appropriate in this separate line item under the revision to
inspection, or Section 716.5(a)(1)(ii),
sentence. BIS has amended the last the information collection for this final
which provides that BIS’s inspection
sentence of the second paragraph in rule. Finally, this rule adds a new
notification will include a request that
section (G) by removing the word ‘‘not’’ reporting form, entitled ‘‘No Changes
the facility indicate whether it will
from the phrase ‘‘not packaged for retail Authorization Form,’’ for UDOC
consent to an inspection. The
sale for personal use.’’ facilities to use, if appropriate, for
respondent noted that, while obtaining
the consent of the owner, operator, or Rulemaking Requirements certifying that there are no changes to
agent in charge of a facility to an the information declared in a UDOC
1. This final rule has been determined facility’s prior year’s annual declaration
inspection is not expressly stated in Part to be significant for purposes of E.O.
717, it is implied because Section on past activities. This new form will
12866. reduce industry’s estimated annual
717.2(a) of the proposed rule indicates 2. Notwithstanding any other
that failure to provide consent will burden by 15 hours and $571.50. Note
provision of law, no person is required
result in the issuance of a criminal that, like the information related to
to respond to, nor shall any person be
warrant. The respondent felt that part subject to a penalty for failure to comply inspection-related amendments, the
717 of the proposed rule creates with, a collection of information subject estimated burden hours and cost for
ambiguity and uncertainty, because it to the Paperwork Reduction Act of 1995 implementing the ‘‘No Changes
does not expressly indicate whether or (44 U.S.C. 3501 et seq.) (PRA), unless Authorization Form’’ are included in a
how BIS would request a facility’s that collection of information displays a prior information collection
consent to an inspection, and suggested currently valid Office of Management authorization from OMB. In conclusion,
that the following sentences be added to and Budget (OMB) Control Number. the total estimated annual burden hours
Sections 717.2(a) and 717.2(b)(2)(ii): This rule revises an existing collection for declarations, reports, amendments,
of information subject to the and requests for compliance-related
Section 717.2(a)—‘‘The owner, operator, information under this final rule will
occupant or agent in charge of a facility may requirements of the PRA. This
consent to a challenge inspection. The collection has been approved by OMB increase from 4401 burden hours to
individual giving consent on behalf of the under Control Number 0694–0091 4471 burden hours.
facility represents that he or she has the (Chemical Weapons Convention— The changes made by this rule are
authority to make this decision for the Declaration and Report Forms), which addressed under two separate
facility.’’ carries burden hour estimates of 10.6 information collection submissions.
Section 717.2(b)(2)(ii)—‘‘In addition to Comments are invited on: (i) Whether
hours for Schedule 1 Chemicals, 11.9
appropriate information provided by the the collection of information is
OPCW in its notification to the USNA, BIS’s hours for Schedule 2 chemicals, 2.5
hours for Schedule 3 chemicals, 5.3/5.1 necessary for the functions of the
inspection notification to the facility will
request that the facility indicate whether it for unscheduled discrete organic agency, including whether the
will consent to an inspection and will state chemicals, and 0.17 hours for Schedule information shall have practical utility;
whether an advance team is available to 1 notifications. This rule adds a new (ii) the accuracy of the agency’s estimate
assist the site in preparation for the Section 711.3 to the Chemical Weapons of the information collection burden;
inspection.’’ Convention Regulations (CWCR) that (iii) ways to enhance the quality, utility,
Response: BIS has amended Sections authorizes BIS to contact any facility to and clarity of the information to be
717.2(a) and 717.2(b)(2)(ii) of the CWCR request information concerning collected; and (iv) ways to minimize the
to expressly indicate that BIS will production, processing, consumption, burden of the collection on respondents,
request the owner, operator, or agent in export, import, or other activities including through the use of automated
charge of a facility to provide consent involving scheduled chemicals and collection techniques or other forms of
prior to a challenge inspection of the UDOCs, described in Parts 712 through information technology.
facility. 715 of the CWCR, in order to determine Send comments regarding this burden
whether or not the facility is in estimate or any other aspect of this
M. Typographical Errors compliance with the CWCR. This new collection of information, including
Comment: One respondent indicated requirement applies to all persons and suggestions for reducing the burden, to
that there were two typographical errors facilities that are subject to the reporting David Rostker, Office of Management
in the Supplementary Information part or declaration provisions of the CWCR, and Budget (OMB), by e-mail to
of the CWCR proposed rule, under Part as set forth in Part 721. The total David_Rostker@omb.eop.gov, or by fax
I (‘‘Summary of CWCR Changes estimated annual burden hours for the to (202) 395–7285; and to the Regulatory
Contained in This Proposed Rule’’), compliance reviews authorized under Policy Division, Bureau of Industry and
section (G), titled ‘‘Proposed new Section 711.3 would be 85 hours Security, Department of Commerce, P.O.
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Amendments to Part 713 of the CWCR and the total estimated annual cost Box 273, Washington, DC 20044.
(Activities Involving Schedule 2 would be $3,236.46. This rule also adds 3. This rule does not contain policies
Chemicals).’’ The respondent stated that a new requirement for the submission of with Federalism implications as that
BIS should add an ‘‘s’’ to the word amendments (to previously submitted term is defined in Executive Order
‘‘prohibit,’’ in the second sentence of declarations and reports) resulting from 13132.

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24928 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

4. The Regulatory Flexibility Act established standards for what requirements would represent only a
(RFA), as amended by the Small constitutes a small business, with small percentage of the revenues
Business Regulatory Enforcement respect to each of the Standard generated by the affected companies.
Fairness Act of 1996 (SBREFA), 5 U.S.C. Industrial Classification (SIC) code Although this final rule will affect a
601 et seq., generally requires an agency categories for ‘‘Chemicals and Allied substantial number of small entities
to prepare a regulatory flexibility Products.’’ However, BIS is not able to (i.e., 297 companies), the total economic
analysis of any rule subject to the notice determine which of these SIC code impact on the affected entities (i.e.,
and comment rulemaking requirements categories apply to the companies that $7,503.46) will not be significant. Since
under the Administrative Procedure Act are subject to the declaration, reporting, the revisions that this rule makes to the
(5 U.S.C. 553) or any other statute, advance notification, recordkeeping or CWCR will not impose a significant
unless the agency certifies that the rule inspection requirements of this rule. economic impact on a substantial
will not have a significant economic Therefore, for the purpose of assessing
number of small entities, BIS did not
impact on a substantial number of small the impact of this final rule, BIS
prepare a regulatory flexibility analysis
entities. Under section 605(b) of the assumes that the 297 companies are
for this rule.
RFA, however, if the head of an agency small entities.
certifies that a rule will not have a Although this final rule will affect a Finally, the changes made by this rule
significant economic impact on a substantial number of small entities should be viewed in light of the fact that
substantial number of small entities, the (i.e., 297 companies), the additional BIS’s discretion in formulating the
statute does not require the agency to recordkeeping and reporting declaration, reporting and advance
prepare a regulatory flexibility analysis. requirements imposed by this rule will notification, and recordkeeping
Pursuant to section 605(b), the Chief not have a significant economic impact requirements of the CWCR is limited by
Counsel for Regulations, Department of on these entities. the Chemical Weapons Convention (the
Commerce, certified to the Chief First, this rule adds a new section Convention). The Organization for the
Counsel for Advocacy, Small Business 711.3 that authorizes BIS to contact any Prohibition of Chemical Weapons
Administration, that the promulgation facility to determine whether or not it is (OPCW) has issued forms for States
of this final rule will not have a in compliance with the CWCR. The Parties to use for declarations. In
significant economic impact on a information that BIS is authorized to
drafting the CWCR requirements and the
substantial number of small entities for request concerns production,
forms for U.S. persons to use, BIS has
the reasons explained below. processing, consumption, export,
consistently interpreted the
Consequently, BIS has not prepared a import, or other activities involving
scheduled chemicals and UDOCs Convention’s requirements as narrowly
regulatory flexibility analysis. as possible to ensure that only
described in parts 712 through 715 of
Small entities include small the CWCR. This new requirement information that the United States
businesses, small organizations and applies to all persons and facilities National Authority must declare to the
small governmental jurisdictions. For subject to the reporting or declaration OPCW is to be submitted to BIS. Other
purposes of assessing the impacts of this provisions of the CWCR, as set forth in States Parties, such as Canada, have
final rule on small entities, small entity part 721. The total estimated annual imposed much broader reporting
is defined as: (1) A small business burden hours for the compliance requirements on their industries, with
according to RFA default definitions for reviews authorized under new section the government taking on the
small business (based on SBA size 711.3 would be 85 hours and the total responsibility of determining which of
standards), (2) a small governmental estimated annual cost would be the information collected must be
jurisdiction that is a government of a $3,236.46. declared to the OPCW. In addition,
city, county, town, school district or Second, this rule adds a new certain declaration requirements of the
special district with a population of less requirement for the submission of Convention are subject to interpretation
than 50,000, and (3) a small amendments (to previously submitted by States Parties. Until the Conference
organization that is any not-for-profit declarations and reports) resulting from of States Parties establishes clear rules
enterprise which is independently inspection findings. The total estimated for these requirements, States Parties
owned and operated and is not annual burden hours for the new may use their ‘‘national discretion’’ to
dominant in its field. BIS has amendment requirement would be 112 implement them. ‘‘National discretion’’
determined that this final rule would hours and the total estimated annual generally means a reasonable
affect only the first category of small cost would be $4,267. interpretation of the requirement. For
entities (i.e., small businesses). The Finally, this rule adds a new reporting
President reported to the Congress, in requirements currently subject to
form, entitled ‘‘No Changes
December 2003, as required under ‘‘national discretion,’’ BIS has adopted
Authorization Form,’’ for UDOC
section 309 of the CWC Implementation facilities to use, if appropriate, for in this rule the minimum requirements
Act, that 297 U.S. companies certifying that there are no changes to consistent with a reasonable reading of
representing 691 facilities, plant sites, the information declared in a UDOC the Convention, keeping in mind its
and trading companies were subject to facility’s prior year’s annual declaration purposes and objectives.
the declaration and reporting on past activities. This new form will List of Subjects
requirements under the Chemical reduce industry’s estimated annual
Weapons Convention Regulations burden by 15 hours and $571.50. 15 CFR Part 710
(CWCR). Although BIS estimates that The total estimated increase in annual
the majority of these 297 companies are burden hours to implement the Chemicals, Exports, Foreign Trade,
substantially sized businesses, having additional recordkeeping and reporting Imports, Treaties.
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more than 500 employees, BIS does not requirements described above would be 15 CFR Part 711
have sufficient information on these 197 burden hours and the total
companies to definitively characterize estimated annual cost would be Chemicals, Confidential business
them as large entities. The Small $7,503.46. The total cost of these information, Reporting and
Business Administration (SBA) has recordkeeping and reporting recordkeeping requirements.

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Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations 24929

15 CFR Part 712 the Export Administration Regulations, Chemical Weapons Convention (CWC),
the International Traffic in Arms provided that the type and quantity are
Chemicals, Exports, Foreign Trade, Regulations, and the Alcohol, Tobacco,
Imports, Reporting and recordkeeping consistent with such purposes;
Firearms, and Explosives Regulations. (2) Munitions and devices,
requirements. Supplement No. 1 to Part 710—States Parties specifically designed to cause death or
to the Convention on the Prohibition of
15 CFR Part 713 the Development, Production,
other harm through the toxic properties
Chemicals, Exports, Foreign Trade, Stockpiling and Use of Chemical of those toxic chemicals specified in
Imports, Reporting and recordkeeping Weapons and on Their Destruction paragraph (1) of this definition, which
Supplement No. 2 to Part 710—Definitions of would be released as a result of the
requirements.
Production employment of such munitions and
15 CFR Part 714 Authority: 22 U.S.C. 6701 et seq.; E.O. devices;
13128, 64 FR 36703, 3 CFR 1999 Comp., p. (3) Any equipment specifically
Chemicals, Exports, Foreign Trade,
199. designed for use directly in connection
Imports, Reporting and recordkeeping
with the employment of munitions or
requirements. § 710.1 Definitions of terms used in the devices specified in paragraph (2) of this
15 CFR Part 715 Chemical Weapons Convention Regulations definition.
(CWCR). Chemical Weapons Convention (CWC
Chemicals, Exports, Foreign Trade, The following are definitions of terms or Convention). Means the Convention
Imports, Reporting and recordkeeping used in the CWCR (parts 710 through on the Prohibition of the Development,
requirements. 729 of this subchapter, unless otherwise Production, Stockpiling and Use of
15 CFR Part 716 noted): Chemical Weapons and on Their
Act (The). Means the Chemical Destruction, and its annexes opened for
Chemicals, Confidential business
Weapons Convention Implementation signature on January 13, 1993.
information, Reporting and
Act of 1998 (22 U.S.C. 6701 et seq.). Chemical Weapons Convention
recordkeeping requirements, Search Advance Notification. Means a notice Regulations (CWCR). Means the
warrant, Treaties. informing BIS of a company’s intention regulations contained in 15 CFR parts
15 CFR Part 717 to export to or import from a State Party 710 through 729.
a Schedule 1 chemical. This advance Consumption. Consumption of a
Chemicals, Confidential business
notification must be submitted to BIS at chemical means its conversion into
information, Reporting and
least 45 days prior to the date of export another chemical via a chemical
recordkeeping requirements, Search
or import (except for transfers of 5 reaction. Unreacted material must be
warrant, Treaties.
milligrams or less of saxitoxin for accounted for as either waste or as
15 CFR Part 718 medical/diagnostic purposes, which recycled starting material.
Confidential business information, must be submitted to BIS at least 3 days Declaration or report form. Means a
Reporting and recordkeeping prior to export or import). BIS will multi-purpose form to be submitted to
requirements. inform the company in writing of the BIS regarding activities involving
earliest date the shipment may occur Schedule 1, Schedule 2, Schedule 3, or
15 CFR Part 719 under the advance notification unscheduled discrete organic chemicals.
Administrative proceedings, Exports, procedure. This advance notification Declaration forms will be used by
Imports, Penalties, Violations. requirement is imposed in addition to facilities that have data declaration
any export license requirements under obligations under the CWCR and are
15 CFR Part 720 the Department of Commerce’s Export ‘‘declared’’ facilities whose facility-
Penalties, violations. Administration Regulations (15 CFR specific information will be transmitted
parts 730 through 799) or the to the OPCW. Report forms will be used
15 CFR Part 721 Department of State’s International by entities that are ‘‘undeclared’’
Reporting and recordkeeping Traffic in Arms Regulations (22 CFR facilities or trading companies that have
requirements. parts 120 through 130) or any import limited reporting requirements for only
license requirements under the export and import activities under the
■ Accordingly, the Chemical Weapons
Department of Justice’s Bureau of CWCR and whose facility-specific
Convention Regulations, 15 CFR,
Alcohol, Tobacco, Firearms and information will not be transmitted to
chapter VII, subchapter B, parts 710
Explosives Regulations (27 CFR part the OPCW. Information from declared
through 722, are revised to read as
447). facilities, undeclared facilities and
follows:
Bureau of Industry and Security (BIS). trading companies will also be used to
PART 710—GENERAL INFORMATION Means the Bureau of Industry and compile U.S. national aggregate figures
AND OVERVIEW OF THE CHEMICAL Security of the United States on the production, processing,
WEAPONS CONVENTION Department of Commerce, including consumption, export and import of
REGULATIONS (CWCR) Export Administration and Export specific chemicals. See also related
Enforcement. definitions of declared facility,
Sec. By-product. Means any chemical undeclared facility and report.
710.1 Definitions of terms used in the substance or mixture produced without Declared facility or plant site. Means
Chemical Weapons Convention a separate commercial intent during the a facility or plant site that submits
Regulations (CWCR). manufacture, processing, use or disposal declarations of activities involving
710.2 Scope of the CWCR. of another chemical substance or Schedule 1, Schedule 2, Schedule 3, or
710.3 Purposes of the Convention and
mixture. unscheduled discrete organic chemicals
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CWCR.
710.4 Overview of scheduled chemicals and Chemical Weapon. Means the above specified threshold quantities.
examples of affected industries. following, together or separately: Discrete organic chemical. Means any
710.5 Authority. (1) Toxic chemicals and their chemical belonging to the class of
710.6 Relationship between the Chemical precursors, except where intended for chemical compounds consisting of all
Weapons Convention Regulations and purposes not prohibited under the compounds of carbon, except for its

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24930 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

oxides, sulfides, and metal carbonates, Impurity. Means a chemical substance (2) Repair and maintenance shops;
identifiable by chemical name, by unintentionally present with another (3) Medical center;
structural formula, if known, and by chemical substance or mixture. (4) Utilities;
Chemical Abstract Service registry Inspection Notification. Means a (5) Central analytical laboratory;
number, if assigned. (Also see the written announcement to a plant site by (6) Research and development
definition for unscheduled discrete the United States National Authority laboratories;
organic chemical.) (USNA) or the BIS Host Team of an (7) Central effluent and waste
Domestic transfer. Means, with regard impending inspection under the treatment area; and
Convention. (8) Warehouse storage.
to declaration requirements for
Inspection Site. Means any facility or Precursor. Means any chemical
Schedule 1 chemicals under the CWCR,
area at which an inspection is carried reactant which takes part, at any stage
any movement of any amount of a
out and which is specifically defined in in the production, by whatever method,
Schedule 1 chemical outside the
the respective facility agreement or of a toxic chemical. The term includes
geographical boundary of a facility in
inspection request or mandate or any key component of a binary or
the United States to another destination
inspection request as expanded by the multicomponent chemical system.
in the United States, for any purpose. Processing. Means a physical process
Also means, with regard to declaration alternative or final perimeter.
Inspection Team. Means the group of such as formulation, extraction and
requirements for Schedule 2 and purification in which a chemical is not
Schedule 3 chemicals under the CWCR, inspectors and inspection assistants
assigned by the Director-General of the converted into another chemical.
movement of a Schedule 2 or Schedule Production. Means the formation of a
3 chemical in quantities and Technical Secretariat to conduct a
particular inspection. chemical through chemical reaction,
concentrations greater than specified including biochemical or biologically
thresholds, outside the geographical Intermediate. Means a chemical
formed through chemical reaction that mediated reaction (see Supplement No.
boundary of a facility in the United 2 to this part).
States, to another destination in the is subsequently reacted to form another
chemical. (1) Production of Schedule 1
United States, for any purpose. chemicals means formation through
Domestic transfer includes movement ITAR. Means the International Traffic
in Arms Regulations (22 CFR parts 120– chemical synthesis as well as processing
between two divisions of one company to extract and isolate Schedule 1
or a sale from one company to another. 130).
Organization for the Prohibition of chemicals.
Note that any movement to or from a (2) Production of a Schedule 2 or
Chemical Weapons (OPCW). Means the
facility outside the United States is Schedule 3 chemical means all steps in
international organization, located in
considered an export or import for the production of a chemical in any
The Hague, the Netherlands, that
reporting purposes, not a domestic units within the same plant through
administers the CWC.
transfer. (Also see definition of United chemical reaction, including any
Person. Means any individual,
States.) associated processes (e.g., purification,
corporation, partnership, firm,
EAR. Means the Export association, trust, estate, public or separation, extraction, distillation, or
Administration Regulations (15 CFR private institution, any State or any refining) in which the chemical is not
parts 730–799). political subdivision thereof, or any converted into another chemical. The
Explosive. Means a chemical (or a political entity within a State, any exact nature of any associated process
mixture of chemicals) that is included foreign government or nation or any (e.g., purification, etc.) is not required to
in Class 1 of the United Nations agency, instrumentality or political be declared.
Organization hazard classification subdivision of any such government or Production by synthesis. Means
system. nation, or other entity located in the production of a chemical from its
Facility. Means any plant site, plant or United States. reactants.
unit. Plant. Means a relatively self- Protective purposes in relation to
Facility Agreement. Means a written contained area, structure or building Schedule 1 chemicals. Means any
agreement or arrangement between a containing one or more units with purpose directly related to protection
State Party and the Organization relating auxiliary and associated infrastructure, against toxic chemicals and to
to a specific facility subject to on-site such as: protection against chemical weapons.
verification pursuant to Articles IV, V, (1) Small administrative area; Further means the Schedule 1 chemical
and VI of the Convention. (2) Storage/handling areas for is used for determining the adequacy of
feedstock and products; defense equipment and measures.
Host Team. Means the U.S.
(3) Effluent/waste handling/treatment Purposes not prohibited by the CWC.
Government team that accompanies the
area; Means the following:
inspection team from the Organization (1) Any peaceful purpose related to an
(4) Control/analytical laboratory;
for the Prohibition of Chemical (5) First aid service/related medical industrial, agricultural, research,
Weapons during a CWC inspection for section; and medical or pharmaceutical activity or
which the regulations in the CWCR (6) Records associated with the other activity;
apply. movement into, around, and from the (2) Any purpose directly related to
Host Team Leader. Means the site, of declared chemicals and their protection against toxic chemicals and
representative from the Department of feedstock or product chemicals formed to protection against chemical weapons;
Commerce who heads the U.S. from them, as appropriate. (3) Any military purpose of the
Government team that accompanies the Plant site. Means the local integration United States that is not connected with
Inspection Team during a CWC of one or more plants, with any the use of a chemical weapon and that
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inspection for which the regulations in intermediate administrative levels, is not dependent on the use of the toxic
the CWCR apply. which are under one operational or poisonous properties of the chemical
Hydrocarbon. Means any organic control, and includes common weapon to cause death or other harm; or
compound that contains only carbon infrastructure, such as: (4) Any law enforcement purpose,
and hydrogen. (1) Administration and other offices; including any domestic riot control

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purpose and including imposition of chemical process but, because it is in a Unscheduled Discrete Organic
capital punishment. transition state in terms of Chemical (UDOC). Means any ‘‘discrete
Report. Means information due to BIS thermodynamics and kinetics, exists organic chemical’’ that is not contained
on exports and imports of Schedule 1, only for a very short period of time, and in the Schedules of Chemicals (see
Schedule 2 or Schedule 3 chemicals cannot be isolated, even by modifying or Supplements No. 1 to parts 712 through
above applicable thresholds. Such dismantling the plant, or altering 714 of the CWCR) and subject to the
information is included in the national process operating conditions, or by declaration requirements of part 715 of
aggregate declaration transmitted to the stopping the process altogether. the CWCR. Unscheduled discrete
OPCW. Facility-specific information is Undeclared facility or plant site. organic chemicals subject to declaration
not included in the national aggregate Means a facility or plant site that is not under the CWCR are those produced by
declaration. Note: This definition does subject to declaration requirements synthesis that are isolated for use or sale
not apply to parts 719 and 720 of the because of past or anticipated as a specific end-product.
CWCR (see the definition of ‘‘report’’ in production, processing or consumption You. The term ‘‘you’’ or ‘‘your’’ means
§ 719.1(b) of the CWCR). involving scheduled or unscheduled any person (see also definition of
Schedules of Chemicals. Means discrete organic chemicals above ‘‘person’’). With regard to the
specific lists of toxic chemicals, groups specified threshold quantities. However, declaration and reporting requirements
of chemicals, and precursors contained such facilities and plant sites may have of the CWCR, ‘‘you’’ refers to persons
in the CWC. See Supplements No. 1 to a reporting requirement for exports or that have an obligation to report certain
parts 712 through 714 of the CWCR. imports of such chemicals. activities under the provisions of the
State Party. Means a country for Unit. Means the combination of those CWCR.
which the CWC is in force. See items of equipment, including vessels
Supplement No. 1 to this part. § 710.2 Scope of the CWCR.
and vessel set up, necessary for the
Storage. For purposes of Schedule 1 The Chemical Weapons Convention
production, processing or consumption
chemical reporting, means any quantity Regulations (parts 710 through 729 of
of a chemical.
that is not accounted for under the this subchapter), or CWCR, implement
United States. Means the several
categories of production, export, import, certain obligations of the United States
States of the United States, the District
consumption or domestic transfer. under the Convention on the
Technical Secretariat. Means the of Columbia, and the commonwealths,
Prohibition of the Development,
organ of the OPCW charged with territories, and possessions of the
Production, Stockpiling and Use of
carrying out administrative and United States, and includes all places
Chemical Weapons and on Their
technical support functions for the under the jurisdiction or control of the
Destruction, known as the CWC or
OPCW, including carrying out the United States, including any of the
Convention.
verification measures delineated in the places within the provisions of (a) Persons and facilities subject to the
CWC. paragraph (41) of section 40102 of Title CWCR. (1) The CWCR apply to all
Toxic Chemical. Means any chemical 49 of the United States Code, any civil persons and facilities located in the
which, through its chemical action on aircraft of the United States or public United States, except the following U.S.
life processes, can cause death, aircraft, as such terms are defined in Government facilities:
temporary incapacitation, or permanent paragraphs (1) and (37), respectively, of (i) Department of Defense facilities;
harm to humans or animals. The term section 40102 of Title 49 of the United (ii) Department of Energy facilities;
includes all such chemicals, regardless States Code, and any vessel of the and
of their origin or of their method of United States, as such term is defined in (iii) Facilities of other U.S.
production, and regardless of whether section 3(b) of the Maritime Drug Government agencies that notify the
they are produced in facilities, in Enforcement Act, as amended (section USNA of their decision to be excluded
munitions, or elsewhere. Toxic 1903(b) of Title 46 App. of the United from the CWCR.
chemicals that have been identified for States Code). (2) For purposes of the CWCR,
the application of verification measures United States National Authority ‘‘United States Government facilities’’
are in schedules contained in (USNA). Means the Department of State are those facilities owned and operated
Supplements No. 1 to parts 712 through serving as the national focal point for by a U.S. Government agency (including
714 of the CWCR. the effective liaison with the those operated by contractors to the
Trading company. Means any person Organization for the Prohibition of agency), and those facilities leased to
involved in the export and/or import of Chemical Weapons and other States and operated by a U.S. Government
scheduled chemicals in amounts greater Parties to the Convention and agency (including those operated by
than specified thresholds, but not in the implementing the provisions of the contractors to the agency). ‘‘United
production, processing or consumption Chemical Weapons Convention States Government facilities’’ do not
of such chemicals in amounts greater Implementation Act of 1998 in include facilities owned by a U.S.
than threshold amounts requiring coordination with an interagency group Government agency and leased to a
declaration. If such persons exclusively designated by the President consisting private company or other entity such
export or import scheduled chemicals in of the Secretary of Commerce, Secretary that the private company or entity may
amounts greater than specified of Defense, Secretary of Energy, the independently decide for what purposes
thresholds, they are subject to reporting Attorney General, and the heads of other to use the facilities.
requirements but are not subject to agencies considered necessary or (b) Activities subject to the CWCR.
routine inspections. Such persons must advisable by the President, or their The activities subject to the CWCR
be the principal party in interest of the designees. The Secretary of State is the (parts 710 through 729 of this
exports or imports and may not delegate Director of the USNA. subchapter) are activities, including
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CWC reporting responsibilities to a Unscheduled chemical. Means a production, processing, consumption,


forwarding or other agent. chemical that is not contained in exports and imports, involving
Transfer. See domestic transfer. Schedule 1, Schedule 2, or Schedule 3 chemicals further described in parts 712
Transient intermediate. Means any (see Supplements No. 1 to parts 712 through 715 of the CWCR. These do not
chemical which is produced in a through 714 of the CWCR). include activities involving inorganic

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24932 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

chemicals other than those listed in the § 710.4 Overview of scheduled chemicals National Emergencies Act, the
Schedules of Chemicals, or other and examples of affected industries. International Emergency Economic
specifically exempted unscheduled The following provides examples of Powers Act (IEEPA), as amended, and
discrete organic chemicals. the types of industries that may be the Export Administration Act of 1979,
affected by the CWCR (parts 710 as amended, by extending verification
§ 710.3 Purposes of the Convention and through 729 of this subchapter). These and trade restriction requirements under
CWCR. examples are not exhaustive, and you Article VI and related parts of the
(a) Purposes of the Convention. (1) should refer to parts 712 through 715 of Verification Annex of the Convention to
The Convention imposes upon the the CWCR to determine your U.S. persons. In Executive Order 13128
United States, as a State Party, certain obligations. of June 25, 1999, the President delegated
declaration, inspection, and other (a) Schedule 1 chemicals are listed in authority to the Department of
obligations. In addition, the United Supplement No. 1 to part 712 of the Commerce to promulgate regulations to
States and other States Parties to the CWCR. Schedule 1 chemicals have little implement the Act, and consistent with
Convention undertake never under any or no use in industrial and agricultural the Act, to carry out appropriate
circumstances to: industries, but may have limited use for functions not otherwise assigned in the
research, pharmaceutical, medical, Act but necessary to implement certain
(i) Develop, produce, otherwise public health, or protective purposes. reporting, monitoring and inspection
acquire, stockpile, or retain chemical (b) Schedule 2 chemicals are listed in requirements of the Convention and the
weapons, or transfer, directly or Supplement No. 1 to part 713 of the Act.
indirectly, chemical weapons to anyone; CWCR. Although Schedule 2 chemicals
§ 710.6 Relationship between the Chemical
(ii) Use chemical weapons; may be useful in the production of
Weapons Convention Regulations and the
(iii) Engage in any military chemical weapons, they also have Export Administration Regulations, the
preparations to use chemical weapons; legitimate uses in areas such as: International Traffic in Arms Regulations,
or (1) Flame retardant additives and and the Alcohol, Tobacco, Firearms and
research; Explosives Regulations.
(iv) Assist, encourage or induce, in (2) Dye and photographic industries Certain obligations of the U.S.
any way, anyone to engage in any (e.g., printing ink, ball point pen fluids, Government under the CWC pertain to
activity prohibited by the Convention. copy mediums, paints, etc.); exports and imports. The obligations on
(2) One objective of the Convention is (3) Medical and pharmaceutical exports are implemented in the Export
to assure States Parties that lawful preparation (e.g., anticholinergics, Administration Regulations (EAR) (15
activities of chemical producers and arsenicals, tranquilizer preparations); CFR parts 730 through 799) and the
users are not converted to unlawful (4) Metal plating preparations; International Traffic in Arms
activities related to chemical weapons. (5) Epoxy resins; and Regulations (ITAR) (22 CFR parts 120
To achieve this objective and to give (6) Insecticides, herbicides, through 130). See in particular §§ 742.2
States Parties a mechanism to verify fungicides, defoliants, and rodenticides. and 742.18 and part 745 of the EAR, and
compliance, the Convention requires the (c) Schedule 3 chemicals are listed in Export Control Classification Numbers
United States and all other States Parties Supplement No. 1 to part 714 of the 1C350, 1C351, 1C355 and 1C395 of the
to submit declarations concerning CWCR. Although Schedule 3 chemicals Commerce Control List (Supplement
chemical production, consumption, may be useful in the production of No. 1 to part 774 of the EAR). The
processing and other activities, and to chemical weapons, they also have obligations on imports are implemented
permit international inspections within legitimate uses in areas such as: in the Chemical Weapons Convention
their borders. (1) The production of: Regulations (§§ 712.2 and 713.1) and the
(i) Resins; Alcohol, Tobacco, Firearms and
(b) Purposes of the Chemical Weapons (ii) Plastics;
Convention Regulations. To fulfill the Explosives Regulations in 27 CFR part
(iii) Pharmaceuticals;
United States’ obligations under the 447.
(iv) Pesticides;
Convention, the CWCR (parts 710 (v) Batteries; Supplement No. 1 to Part 710—States
through 729 of this subchapter) prohibit (vi) Cyanic acid; Parties to the Convention on the
certain activities, and compel the (vii) Toiletries, including perfumes Prohibition of the Development,
submission of information from all and scents; Production, Stockpiling, and Use of
facilities in the United States, except for (viii) Organic phosphate esters (e.g., Chemical Weapons and on Their
Department of Defense and Department hydraulic fluids, flame retardants, Destruction
of Energy facilities and facilities of other surfactants, and sequestering agents);
U.S. Government agencies that notify List of States Parties as of March 25, 2006
and
the USNA of their decision to be (2) Leather tannery and finishing Afghanistan
excluded from the CWCR on activities, Albania
supplies. Algeria
including exports and imports of (d) Unscheduled discrete organic Andorra
scheduled chemicals and certain chemicals are used in a wide variety of Antigua and Barbuda
information regarding unscheduled commercial industries, and include Argentina
discrete organic chemicals as described acetone, benzoyl peroxide and Armenia
in parts 712 through 715 of the CWCR. propylene glycol. Australia
U.S. Government facilities are those Austria
owned by or leased to the U.S. § 710.5 Authority. Azerbaijan
Government, including facilities that are The CWCR (parts 710 through 729 of Bahrain
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contractor-operated. The CWCR also this subchapter) implement certain Bangladesh


Belarus
require access for on-site inspections provisions of the Chemical Weapons Belgium
and monitoring by the OPCW, as Convention under the authority of the Belize
described in parts 716 and 717 of the Chemical Weapons Convention Benin
CWCR. Implementation Act of 1998 (Act), the Bhutan

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Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations 24933

Bolivia Korea (Republic of) Seychelles


Bosnia-Herzegovina Kuwait Sierra Leone
Botswana Kyrgyzstan Singapore
Brazil Laos (P.D.R.)* Slovak Republic*
Brunei Darussalam* Latvia Slovenia
Bulgaria Lesotho Solomon Islands
Burkina Faso Liberia South Africa
Burundi Libya Spain
Cambodia Liechtenstein
Sri Lanka
Cameroon Lithuania
Sudan
Canada Luxembourg
Cape Verde Macedonia (The Former Yugoslav Republic Suriname
Chad of) Swaziland
Chile Madagascar Sweden
China*** Malawi Switzerland
Colombia Malaysia Tajikistan
Congo (Democratic Republic of the) Maldives Tanzania, United Republic of
Cook Islands** Mali Thailand
Costa Rica Malta Timor Leste (East Timor)
Cote d’Ivoire (Ivory Coast) Marshall Islands Togo
Croatia Mauritania Tonga
Cuba Mauritius Trinidad and Tobago
Cyprus Mexico Tunisia
Czech Republic Micronesia (Federated States of) Turkey
Denmark Moldova (Republic of)* Turkmenistan
Djibouti Monaco Tuvalu
Dominica Mongolia Uganda
Ecuador Morocco Ukraine
El Salvador Mozambique
United Arab Emirates
Equatorial Guinea Namibia
United Kingdom
Eritrea Nauru
Estonia Nepal United States
Ethiopia Netherlands*** Uruguay
Fiji New Zealand Uzbekistan
Finland Nicaragua Vanuatu
France Niger Venezuela
Gabon Nigeria Vietnam
Gambia Niue** Yemen
Georgia Norway Zambia
Germany Oman Zimbabwe
Ghana Pakistan * For export control purposes, these
Greece Palau destinations are identified using a different
Grenada Panama nomenclature under the Commerce Country
Guatemala Papua New Guinea Chart in Supplement No. 1 to part 738 of the
Guinea Paraguay Export Administration Regulations (EAR) (15
Guyana Peru CFR parts 730–799).
Haiti Philippines
** For export control purposes, Cook
Holy See* Poland
Islands and Niue are not identified on the
Honduras Portugal
Hungary Qatar Commerce Country Chart in Supplement No.
Iceland Romania 1 to part 738 of the EAR and are treated the
India Russian Federation same as New Zealand, in accordance with
Indonesia Rwanda § 738.3(b) of the EAR.
Iran (Islamic Republic of) Saint Kitts and Nevis *** For CWC States Parties purposes, a
Ireland Saint Lucia territory, possession, or department of any
Italy Saint Vincent and the Grenadines country that is listed in this Supplement as
Jamaica Samoa a State Party to the CWC, is treated the same
Japan San Marino as the country of which it is a territory,
Jordan Sao Tome and Principe possession, or department (e.g., China
Kazakhstan Saudi Arabia includes Hong Kong and Macau; the
Kenya Senegal Netherlands includes Aruba and the
Kiribati Serbia and Montenegro Netherlands Antilles).

SUPPLEMENT NO. 2 TO PART 710.—DEFINITIONS OF PRODUCTION


Unscheduled discrete organic chemicals
Schedule 1 chemicals Schedule 2 and Schedule 3 chemicals (UDOCs)

Produced by a biochemical or biologically mediated reaction Produced by synthesis*

Formation through chemical synthesis. All production steps in any units within the
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Processing to extract and isolate Schedule 1 same plant which includes associated proc-
chemicals. esses—purification, separation, extraction
distillation or refining.**
* Intermediates used in a single or multi-step process to produce another declared UDOC are not declarable.

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** Intermediates are subject to declaration, except ‘‘transient intermediates,’’ which are those chemicals in a transition state in terms of thermo-
dynamics 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 al-
tering process operating conditions, or by stopping the process altogether are not subject to declaration.

PART 711—GENERAL INFORMATION production, processing, consumption, (ii) Company name and complete
REGARDING DECLARATION, export, import, or other activities street address;
REPORTING, AND ADVANCE involving scheduled chemicals and (iii) Point of contact;
NOTIFICATION REQUIREMENTS, AND unscheduled discrete organic chemicals (iv) Phone and facsimile number of
THE ELECTRONIC FILING OF described in parts 712 through 715 of contact;
DECLARATIONS AND REPORTS the CWCR. Any person or facility (v) E-mail address of contact, if you
subject to the CWCR and receiving such want an acknowledgment of receipt sent
Sec. a request for information will be via e-mail;
711.1 Overviews of declaration, reporting,
required to provide a response to BIS (vi) Chemical Name;
and advance notification requirements. (vii) Structural formula of the
711.2 Who submits declarations, reports, within 30 working days of receipt of the
chemical, if the chemical is not
and advance notifications? request. This requirement does not, in
specifically identified by name and
711.3 Compliance review. itself, impose a requirement to create
chemical abstract service registry
711.4 Assistance in determining your new records or maintain existing
obligations.
number in Supplements No. 1 to parts
records in a manner other than that
711.5 Numerical precision of submitted 712 through 714 of the CWCR; and
directed by the recordkeeping (viii) Chemical Abstract Service
data. provisions set forth in part 721 of the
711.6 Where to obtain forms. registry number, if assigned.
CWCR. (b) Other inquiries. If you need
711.7 Where to submit declarations,
reports, and advance notifications. § 711.4 Assistance in determining your assistance in interpreting the provisions
711.8 How to request authorization from obligations. of the CWCR or need assistance with
BIS to make electronic submissions of declaration, forms, reporting, advance
declarations or reports. (a) Determining if your chemical is
notification, inspection or facility
subject to declaration, reporting or
Authority: 22 U.S.C. 6701 et seq.; E.O. agreement issues, contact BIS’s Treaty
advance notification requirements. (1) If
13128, 64 FR 36703, 3 CFR 1999 Comp., p. Compliance Division by phone at (703)
199. you need assistance in determining if
605–4400. If you require a response
your chemical is classified as a
from BIS in writing, submit a detailed
§ 711.1 Overviews of declaration, Schedule 1, Schedule 2, or Schedule 3 request to BIS that explains your
reporting, and advance notification chemical, or is an unscheduled discrete
requirements. question, issue, or request. Send the
organic chemical, submit your written request to the address or facsimile
Parts 712 through 715 of the CWCR request for a chemical determination to
(parts 710 through 729 of this included in paragraph (a) of this section,
BIS. Such requests may be sent via or e-mail the request to cwcqa@cwc.gov.
subchapter) describe the declaration, facsimile to (703) 605–4425, e-mailed to Your request must be marked, ‘‘ATTN:
advance notification and reporting cdr@cwc.gov, or mailed to the Treaty CWCR Assistance.’’
requirements for Schedule 1, 2 and 3 Compliance Division, Bureau of
chemicals and for unscheduled discrete Industry and Security, U.S. Department § 711.5 Numerical precision of submitted
organic chemicals (UDOCs). For each of Commerce, 1555 Wilson Boulevard, data.
type of chemical, the Convention Suite 700, Arlington, Virginia 22209– Numerical information submitted in
requires annual declarations. If, after 2405, and must be marked, ‘‘ATTN: declarations and reports is to be
reviewing parts 712 through 715 of the Chemical Determination.’’ Your request provided per applicable rounding rules
CWCR, you determine that you have should include the information noted in in each part (i.e., parts 712 through 715
declaration, advance notification or paragraph (a)(2) of this section to ensure of the CWCR) with a precision equal to
reporting requirements, you may obtain an accurate determination. Also include that which can be reasonably provided
the appropriate forms by contacting the any additional information that you feel using existing documentation,
Bureau of Industry and Security (BIS) is relevant to the chemical or process equipment, and measurement
(see § 711.6 of the CWCR). involved (see part 718 of the CWCR for techniques.
provisions regarding treatment of
§ 711.2 Who submits declarations, reports, § 711.6 Where to obtain forms.
and advance notifications. confidential business information). If
you are unable to provide all of the (a) Forms to complete declarations
The owner, operator, or senior and reports required by the CWCR may
information required in paragraph (a)(2)
management official of a facility subject be obtained by contacting: Treaty
of this section, you should include an
to declaration, reporting, or advance Compliance Division, Bureau of
explanation identifying the reasons or
notification requirements under the Industry and Security, U.S. Department
deficiencies that preclude you from
CWCR (parts 710 through 729 of this of Commerce, 1555 Wilson Blvd., Suite
supplying the information. If BIS cannot
subchapter) is responsible for the 700, Arlington, VA 22209–2405,
make a determination based upon the
submission of all required documents in Telephone: (703) 605–4400. Forms and
information submitted, BIS will return
accordance with all applicable forms software may also be downloaded
the request to you and identify the
provisions of the CWCR. from the Internet at www.cwc.gov.
additional information that is necessary
to complete a chemical determination. (b) If the amount of information you
§ 711.3 Compliance review.
BIS will provide a written response to are required to submit is greater than the
Periodically, BIS will request given form will allow, multiple copies
information from persons and facilities your chemical determination request
of forms may be submitted.
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subject to the CWCR to determine within 10 working days of receipt of the


compliance with the reporting, request. § 711.7 Where to submit declarations,
declaration and notification (2) Include the following information reports and advanced notifications.
requirements set forth herein. in each chemical determination request: Declarations, reports and advance
Information requested may relate to the (i) Date of request; notifications required by the CWCR

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must be sent to: Treaty Compliance management official responsible for (C) Authorize another person to use
Division, Bureau of Industry and certifying that each person listed in the your user name or password; or
Security, U.S. Department of Commerce, request is authorized to view, edit, and/ (D) Use your user name or password
1555 Wilson Blvd., Suite 700, Arlington, or submit declarations and reports on following termination, either by BIS or
VA 22209–2405, Telephone: (703) 605– behalf of you or your company (i.e., the by your company, of your authorization
4400. Advanced notifications may also certifying official). Additional or approval for Web-DESI use.
be sent by facsimile to (703) 235–1481. information required for submitting (iv) To prevent misuse of the Web-
Specific types of declarations and electronic declarations and reports may DESI account:
reports and due dates are outlined in be found on BIS’s Web site at (A) If Web-DESI user account
Supplement No. 2 to parts 712 through www.cwc.gov. Once you have completed information (i.e., user name and
715 of the CWCR. and submitted the necessary password) is lost, stolen or otherwise
certifications, BIS will review your compromised, the company and the
§ 711.8 How to request authorization from
BIS to make electronic submissions of request for authorization to view, edit, user must report the loss, theft or
declarations or reports. and/or submit declarations and reports compromise of the user account
(a) Scope. This section provides an electronically. BIS will notify you if information, immediately, by calling
optional method of submitting additional information is required and/ BIS at (703) 235–1335. Within two
declarations or reports. Specifically, this or upon completion of its review. business days of making the report, the
section applies to the electronic Note to § 711.8(b)(1): You must submit a
company and the user must submit
submission of declarations and reports separate request for each facility, plant site or written confirmation to BIS at the
required under the CWCR. If you choose trading company owned by your company address provided in § 711.6 of the
to submit declarations and reports by (e.g., each site that is assigned a unique U.S. CWCR.
electronic means, all such electronic Code Number). (B) Your company is responsible for
submissions must be made through the immediately notifying BIS whenever a
(2) Assignment and use of passwords Web-DESI user leaves the employ of the
Web-Data Entry System for Industry for facilities, plant sites and trading
(Web-DESI), which can be accessed on company or otherwise ceases to be
companies (USC password) and Web- authorized by the company to submit
the CWC web site at www.cwc.gov. DESI user accounts (user name and
(b) Authorization. If you or your declarations and reports electronically
password). (i) Each person, facility, on its behalf.
company has a facility, plant site, or plant site or trading company
trading company that has been assigned (v) No person may use, copy,
authorized to submit declarations and appropriate or otherwise compromise a
a U.S. Code Number (USC Number), you reports electronically will be assigned a
may submit declarations and reports Web-DESI account user name or
password (USC password) that must be password assigned to another person.
electronically, once you have received used in conjunction with the U.S.C.
authorization from BIS to do so. An No person, except a person authorized
Number. Each person authorized by BIS access by the company, may use or copy
authorization to submit declarations and to view, edit, and/or submit declarations
reports electronically may be limited or the facility, plant site or trading
and reports electronically for a facility, company password (USC password), nor
withdrawn by BIS at any time. There are plant site or trading company will be
no prerequisites for obtaining may any person steal or otherwise
assigned a Web-DESI user account (user compromise this password.
permission to submit electronically, nor name and password) telephonically by
are there any limitations with regard to (c) Electronic submission of
BIS. A Web-DESI user account will be
the types of declarations or reports that declarations and reports—(1) General
assigned to you only if your company
are eligible for electronic submission. instructions. Upon submission of the
has certified to BIS that you are
However, BIS may direct, for any required certifications and approval of
authorized to act for it in viewing,
reason, that any electronic declaration the company’s request to use electronic
editing, and/or submitting electronic
or report be resubmitted in writing, submission, BIS will provide
declarations and reports under the
either in whole or in part. instructions on both the method for
CWCR.
(1) Requesting approval to submit transmitting declarations and reports
declarations and reports electronically. Note to § 711.8(b)(2)(i): When persons must electronically and the process for
To submit declarations and reports have access to multiple Web-DESI accounts, submitting required supporting
electronically, you or your company their companies must identify such persons documents, if any. These instructions
must submit a written request to BIS at on the approval request for each of these may be modified by BIS from time to
the address identified in § 711.6 of the Web-DESI accounts. BIS will coordinate with time.
such persons to ensure that the assigned user
CWCR. Both the envelope and letter name and password is the same for each
(2) Declarations and reports. The
must be marked, ‘‘ATTN: Electronic account. electronic submission of a declaration or
Declaration or Report Request.’’ Your report will constitute an official
request should be on company (ii) Your company may reveal the document as required under parts 712
letterhead and must contain your name facility, plant site or trading company through 715 of the CWCR. Such
or the company’s name, your mailing password (USC password) only to Web- submissions must provide the same
address at the company, the name of the DESI users with valid passwords, their information as written declarations and
facility, plant site or trading company supervisors, and employees or agents of reports and are subject to the
and its U.S. Code Number, the address the company with a commercial recordkeeping provisions of part 720 of
of the facility, plant site or trading justification for knowing the password. the CWCR. The company and Web-DESI
company (this address may be different (iii) If you are an authorized Web- user submitting the declaration or report
from the mailing address), the list of DESI account user, you may not: will be deemed to have made all
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persons who are authorized to view, (A) Disclose your user name or representations and certifications as if
edit, and/or submit declarations and password to anyone; the submission were made in writing by
reports on behalf of your company, and (B) Record your user name or the company and signed by the
the telephone number and name and password, either in writing or certifying official. Electronic submission
title of the owner, operator, or senior electronically; of a declaration or report will be

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considered complete upon transmittal to to the regulatory requirements of other amended initial declaration to BIS 200
BIS. federal agencies. calendar days prior to implementing the
(d) Updating. A company approved change (see § 712.5(b)(1)(ii) of the
§ 712.2 Restrictions on activities involving
for electronic submission of declarations CWCR).
Schedule 1 chemicals.
or reports under Web-DESI must
(a) You may not produce Schedule 1 § 712.4 New Schedule 1 production
promptly notify BIS of any change in its facility.
chemicals for protective purposes.
name, ownership or address. If your (b) You may not import any Schedule
company wishes to have a person added (a) Establishment of a new Schedule
1 chemical unless: 1 production facility. (1) If your facility
as a Web-DESI user, your company must (1) The import is from a State Party;
inform BIS and follow the instructions has never before been declared under
(2) The import is for research, § 712.5 of the CWCR, or the initial
provided by BIS. Your company should medical, pharmaceutical, or protective
conduct periodic reviews to ensure that declaration for your facility has been
purposes; withdrawn pursuant to § 712.5(g) of the
the company’s designated certifying (3) The import is in types and
official and Web-DESI users are persons CWCR, and you intend to begin
quantities strictly limited to those that production of Schedule 1 chemicals at
whose current responsibilities make it can be justified for such purposes; and
necessary and appropriate that they act your facility in quantities greater than
(4) You have notified BIS at least 45
for the company in either capacity. 100 grams aggregate per year for
calendar days prior to the import,
research, medical, or pharmaceutical
pursuant to § 712.6 of the CWCR.
PART 712—ACTIVITIES INVOLVING purposes, you must provide an initial
Note 1 to § 712.2(b): Pursuant to § 712.6, declaration (with a current detailed
SCHEDULE 1 CHEMICALS
advance notifications of import of saxitoxin technical description of your facility) to
Sec. of 5 milligrams or less for medical/diagnostic BIS in no less than 200 calendar days in
712.1 Round to zero rule that applies to purposes must be submitted to BIS at least
3 days prior to import.
advance of commencing such
activities involving Schedule 1 production. Such facilities are
chemicals.
Note 2 to § 712.2(b): For specific provisions considered to be ‘‘new Schedule 1
712.2 Restrictions on activities involving
Schedule 1 chemicals. relating to the prior advance notification of production facilities’’ and are subject to
712.3 Initial declaration requirements for exports of all Schedule 1 chemicals, see an initial inspection within 200
declared facilities which are engaged in § 745.1 of the Export Administration calendar days of submitting an initial
the production of Schedule 1 chemicals Regulations (EAR) (15 CFR parts 730 through declaration.
for purposes not prohibited by the CWC. 799). For specific provisions relating to (2) New Schedule 1 production
712.4 New Schedule 1 production facility. license requirements for exports of Schedule
1 chemicals, see § 742.2 and § 742.18 of the
facilities that submit an initial
712.5 Annual declaration requirements for declaration pursuant to paragraph (a)(1)
facilities engaged in the production of EAR for Schedule 1 chemicals subject to the
jurisdiction of the Department of Commerce of this section are considered approved
Schedule 1 chemicals for purposes not
and see the International Traffic in Arms Schedule 1 production facilities for
prohibited by the CWC.
712.6 Advance notification and annual Regulations (22 CFR parts 120 through 130) purposes of the CWC, unless otherwise
report of all exports and imports of for Schedule 1 chemicals subject to the notified by BIS within 30 days of receipt
Schedule 1 chemicals to, or from, other jurisdiction of the Department of State. by BIS of that initial declaration.
States Parties. (c)(1) The provisions of paragraphs (a) (b) Types of declaration forms
712.7 Amended declaration or report. and (b) of this section do not apply to required. If your new Schedule 1
712.8 Declarations and reports returned production facility will produce in
without action by BIS.
the retention, ownership, possession,
transfer, or receipt of a Schedule 1 excess of 100 grams aggregate of
712.9 Deadlines for submission of Schedule Schedule 1 chemicals, you must
1 declarations, reports, advance chemical by a department, agency, or
other entity of the United States, or by complete the Certification Form, Form
notifications, and amendments.
Supplement No. 1 to Part 712—Schedule 1 a person described in paragraph (c)(2) of 1–1 and Form A. You must also provide
Chemicals this section, pending destruction of the a detailed technical description of the
Supplement No. 2 to Part 712—Deadlines for Schedule 1 chemical; new facility or its relevant parts, and a
Submission of Schedule 1 Declarations, (2) A person referred to in paragraph detailed diagram of the declared areas in
Reports, Advance Notifications, Reports, (c)(1) of this section is: the facility.
and Amendments (i) Any person, including a member of (c) Two hundred days after a new
Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. the Armed Forces of the United States, Schedule 1 production facility submits
1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. who is authorized by law or by an its initial declaration, it is subject to the
12938, 59 FR 59099, 3 CFR, 1994 Comp., p. appropriate officer of the United States declaration requirements in § 712.5(a)(1)
950, as amended by E.O. 13094, 63 FR 40803, to retain, own, possess transfer, or and (a)(2) and § 712.5(b)(1)(ii) of the
3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 CWCR.
receive the Schedule 1 chemical; or
FR 36703, 3 CFR 1999 Comp., p. 199.
(ii) In an emergency situation, any
§ 712.5 Annual declaration requirements
§ 712.1 Round to zero rule that applies to otherwise non-culpable person if the for facilities engaged in the production of
activities involving Schedule 1 chemicals. person is attempting to seize or destroy Schedule 1 chemicals for purposes not
Facilities that produce, export or the Schedule 1 chemical. prohibited by the CWC.
import mixtures containing less than § 712.3 Initial declaration requirements for (a) Declaration requirements—(1)
0.5% aggregate quantities of Schedule 1 declared facilities which are engaged in the Annual declaration on past activities.
chemicals (see Supplement No. 1 to this production of Schedule 1 chemicals for You must complete the forms specified
part) as unavoidable by-products or purposes not prohibited by the CWC. in paragraph (b)(2) of this section if you
impurities may round to zero and are Initial declarations submitted in produced at your facility in excess of
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not subject to the provisions of this part February 2000 remain valid until 100 grams aggregate of Schedule 1
712. Schedule 1 content may be amended or rescinded. If you plan to chemicals in the previous calendar year.
calculated by volume or weight, change/amend the technical description As a declared Schedule 1 facility, in
whichever yields the lesser percent. of your facility submitted with your addition to declaring the production of
Note that such mixtures may be subject initial declaration, you must submit an each Schedule 1 chemical that

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comprises your aggregate production of (c) Quantities to be declared. If you chemicals within a calendar year unless
Schedule 1 chemicals, you must also produced in excess of 100 grams pursuant to § 712.4.
declare any Schedule 1, Schedule 2, or aggregate of Schedule 1 chemicals in the
§ 712.6 Advance notification and annual
Schedule 3 precursor used to produce previous calendar year, you must
report of all exports and imports of
the declared Schedule 1 chemical. You declare the entire quantity of such Schedule 1 chemicals to, or from, other
must further declare each Schedule 1 production, rounded to the nearest States Parties.
chemical used (consumed) and stored at gram. You must also declare the Pursuant to the Convention, the
your facility, and domestically quantity of any Schedule 1, Schedule 2 United States is required to notify the
transferred from your facility during the or Schedule 3 precursor used to produce OPCW not less than 30 days in advance
previous calendar year, whether or not the declared Schedule 1 chemical, of every export or import of a Schedule
you produced that Schedule 1 chemical rounded to the nearest gram. You must 1 chemical, in any quantity, to or from
at your facility. further declare the quantity of each another State Party. In addition, the
(2) Annual declaration on anticipated Schedule 1 chemical consumed or United States is required to provide a
activities. You must complete the forms stored by, or domestically transferred report of all exports and imports of
specified in paragraph (b)(3) of this from, your facility, whether or not the Schedule 1 chemicals to or from other
section if you anticipate that you will Schedule 1 chemical was produced by States Parties during each calendar year.
produce at your facility more than 100 your facility, rounded to the nearest If you plan to export or import any
grams aggregate of Schedule 1 chemicals gram. In calculating the amount of quantity of a Schedule 1 chemical from
in the next calendar year. If you are not Schedule 1 chemical you produced, or to your declared facility, undeclared
already a declared facility, you must consumed or stored, count only the facility or trading company, you must
complete an initial declaration (see amount of the Schedule 1 chemical(s) in
§ 712.4 of the CWCR) 200 calendar days notify BIS in advance of the export or
a mixture, not the total weight of the import and complete an annual report of
before commencing operations or mixture (i.e., do not count the weight of
increasing production which will result exports and imports that actually
the solution, solvent, or container). occurred during the previous calendar
in production of more than 100 grams (d) For the purpose of determining if
aggregate of Schedule 1 chemicals. year. The United States will transmit to
a Schedule 1 chemical is subject to the OPCW the advance notifications and
(b) Declaration forms to be used—(1) declaration, you must declare a
Initial declaration. (i) You must have a detailed annual declaration of each
Schedule 1 chemical that is an actual export or import of a Schedule 1
completed the Certification Form, Form
intermediate, but not a transient chemical from/to the United States.
1–1 and Form A if you produced at your
intermediate. Note that the advance notification and
facility in excess of 100 grams aggregate
(e) ‘‘Declared’’ Schedule 1 facilities annual report requirements of this
of Schedule 1 chemicals in calendar
years 1997, 1998, or 1999. You must and routine inspections. Only facilities section do not relieve you of any
have provided a detailed current that submitted a declaration pursuant to requirement to obtain a license for
technical description of your facility or paragraph (a)(1) or (a)(2) of this section export of Schedule 1 chemicals subject
its relevant parts including a narrative or § 712.4 of the CWCR are considered to the EAR or ITAR or a license for
statement, and a detailed diagram of the ‘‘declared’’ Schedule 1 facilities. A import of Schedule 1 chemicals from
declared areas in the facility. ‘‘declared’’ Schedule 1 facility is subject the Department of Justice under the
(ii) If you plan to change the technical to initial and routine inspection by the Alcohol, Tobacco, Firearms and
description of your facility from your OPCW (see part 716 of the CWCR). Explosives Regulations in 27 CFR part
initial declaration completed and (f) Approval of declared Schedule 1 447. Only ‘‘declared’’ facilities, as
submitted pursuant to § 712.3 or § 712.4 production facilities. Facilities that defined in § 712.5(e) of the CWCR, are
of the CWCR, you must submit an submit declarations pursuant to this subject to initial and routine inspections
amended initial declaration to BIS 200 section are considered approved pursuant to part 716 of the CWCR.
calendar days prior to the change. Such Schedule 1 production facilities for (a) Advance notification of exports
amendments to your initial declaration purposes of the CWC, unless otherwise and imports. You must notify BIS at
must be made by completing a notified by BIS within 30 days of receipt least 45 calendar days prior to exporting
Certification Form, Form 1–1 and Form by BIS of an annual declaration on past or importing any quantity of a Schedule
A, including the new description of the activities or annual declaration on 1 chemical, except for exports or
facility. See § 712.7 of the CWCR for anticipated activities (see paragraphs imports of 5 milligrams or less of
additional instructions on amending (a)(1) and (a)(2) of this section). If your Saxitoxin—B (7)—for medical/
Schedule 1 declarations. facility does not produce more than 100 diagnostic purposes, listed in
(2) Annual declaration on past grams aggregate of Schedule 1 Supplement No. 1 to this part to or from
activities. If you are subject to the chemicals, no approval by BIS is another State Party. Advance
declaration requirement of paragraph required. notification of export or import of 5
(a)(1) of this section, you must complete (g) Withdrawal of Schedule 1 initial milligrams or less of Saxitoxin for
the Certification Form and Forms 1–1, declarations. A facility subject to medical/diagnostic purposes only, must
1–2, 1–2A, 1–2B, and Form A if your §§ 712.3, 712.4 and 712.5 of the CWCR be submitted to BIS at least 3 calendar
facility was involved in the production may withdraw its initial declaration at days prior to export or import. Note that
of Schedule 1 chemicals in the previous any time by notifying BIS in writing. A advance notifications for exports may be
calendar year. Form B is optional. notification requesting the withdrawal sent to BIS prior to or after submission
(3) Annual declaration on anticipated of the initial declaration should be sent of a license application to BIS for
activities. If you anticipate that you will on company letterhead to the address in Schedule 1 chemicals subject to the
produce at your facility in excess of 100 § 711.6 of the CWCR. BIS will EAR and controlled under ECCN 1C351
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grams aggregate of Schedule 1 chemicals acknowledge receipt of the withdrawal or to the Department of State for
in the next calendar year you must of the initial declaration. Facilities Schedule 1 chemicals controlled under
complete the Certification Form and withdrawing their initial declaration the ITAR. Such advance notifications
Forms 1–1, 1–4, and Form A. Form B is may not produce subsequently in excess must be submitted separately from
optional. of 100 grams aggregate of Schedule 1 license applications.

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(1) Advance notifications should be that same Schedule 1 chemical, you declaration or report to BIS within 15
on company letterhead or must clearly must report the export or import by days of any change in the following
identify the reporting entity by name of submitting either: information:
company, complete address, name of (1) Combined declaration and report. (1) Types of Schedule 1 chemicals
contact person and telephone and Submit, along with your declaration, produced (e.g., additional Schedule 1
facsimile numbers, along with the Form 1–3 for that same Schedule 1 chemicals);
following information: chemical to be reported. Attach Form A, (2) Quantities of Schedule 1
(i) Chemical name; as appropriate; Form B is optional; or chemicals produced;
(ii) Structural formula of the (2) Report. Submit, separately from (3) Activities involving Schedule 1
chemical; your declaration, a Certification Form, chemicals; and
(iii) Chemical Abstract Service (CAS) Form 1–1, and a Form 1–3 for each (4) End-use of Schedule 1 chemicals
Registry Number; Schedule 1 chemical to be reported. (e.g., additional end-use(s)).
(iv) Quantity involved in grams; Attach Form A, as appropriate; Form B (b) Changes to export or import
(v) Planned date of export or import; is optional. information submitted in Annual
(vi) Purpose (end-use) of export or (B) If your facility declared Reports on Exports and Imports from
import (i.e., research, medical, production of a Schedule 1 chemical undeclared facilities, trading companies
pharmaceutical, or protective purposes); and exported or imported any amount of and U.S. persons. You must submit an
(vii) Name(s) of exporter and a different Schedule 1 chemical, you amended report or amended combined
importer; must report the export or import by declaration and report for changes to
(viii) Complete street address(es) of submitting either: export or import information within 15
exporter and importer; (1) Combined declaration and report. days of any change in the following
(ix) U.S. export license or control Submit, along with your declaration, a export or import information:
number, if known; and Form 1–3 for each Schedule 1 chemical (1) Types of Schedule 1 chemicals
(x) Company identification number, to be reported. Attach Form A, as exported or imported (e.g., additional
once assigned by BIS. appropriate; Form B is optional; or Schedule 1 chemicals);
(2) Send the advance notification by (2) Report. Submit, separately from (2) Quantities of Schedule 1
facsimile to (703) 235–1481 or to the your declaration, a Certification Form, chemicals exported or imported;
following address for mail and courier Form 1–1, and a Form 1–3 for each (3) Destination(s) of Schedule 1
deliveries: Treaty Compliance Division, Schedule 1 chemical to be reported. chemicals exported;
Bureau of Industry and Security, Attach Form A, as appropriate; Form B (4) Source(s) of Schedule 1 chemicals
Department of Commerce, 1555 Wilson is optional. imported;
Boulevard, Suite 700, Arlington, VA (ii) If you are an undeclared facility, (5) Activities involving exports and
22209–2405, Attn: ‘‘Advance trading company, or any other person imports of Schedule 1 chemicals; and
Notification of Schedule 1 Chemical subject to the CWCR, and you exported (6) End-use(s) of Schedule 1
[Export] [Import].’’ or imported any amount of a Schedule chemicals exported or imported (e.g.,
(3) Upon receipt of the advance 1 chemical, you must report the export additional end-use(s)).
notification, BIS will inform the or import by submitting a Certification (c) Changes to company and facility
exporter or importer of the earliest date Form, Form 1–1, and a Form 1–3 for information previously submitted to BIS
after which the shipment may occur each Schedule 1 chemical to be in the ADPA, the ADAA, and the
under the advance notification reported. Attach Form A, as appropriate; Annual Report on Exports and
procedure. To export a Schedule 1 Form B is optional. Imports.—(1) Internal company
chemical subject to an export license (c) Paragraph (a) of this section does changes. You must submit an amended
requirement either under the EAR or the not apply to the activities and persons declaration or report to BIS within 30
ITAR, the exporter must have applied set forth in § 712.2(b) of the CWCR. days of any change in the following
for and been granted a license (see information:
§ 742.2 and § 742.18 of the EAR, or the § 712.7 Amended declaration or report. (i) Name of declaration/report point of
ITAR at 22 CFR parts 120 through 130). In order for BIS to maintain accurate contact (D–POC), including telephone
(b) Annual report requirements for information on previously submitted number, facsimile number, and e-mail
exports and imports of Schedule 1 facility declarations, including address;
chemicals. Any person subject to the information necessary to facilitate (ii) Name(s) of inspection point(s) of
CWCR that exported or imported any inspection notifications and activities or contact (I–POC), including telephone
quantity of Schedule 1 chemical to or to communicate declaration or report number(s), and facsimile number(s);
from another State Party during the requirements, amended declarations or (iii) Company name (see § 712.7(c)(2)
previous calendar year has a reporting reports will be required under the of the CWCR for other company
requirement under this section. following circumstances described in changes);
(1) Annual report on exports and this section. This section applies only to (iv) Company mailing address;
imports. Declared and undeclared annual declarations on past activities (v) Facility name;
facilities, trading companies, and any and annual reports on exports and (vi) Facility owner, including
other person subject to the CWCR that imports submitted for the previous telephone number, and facsimile
exported or imported any quantity of a calendar year or annual declarations on number; and
Schedule 1 chemical to or from another anticipated activities covering the (vii) Facility operator, including
State Party in a previous calendar year current calendar year, unless specified telephone number, and facsimile
must submit an annual report on otherwise in a final inspection report. number.
exports and imports. (a) Changes to information that (2) Change in ownership of company
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(2) Report forms to submit.—(i) directly affect inspection of a declared or facility. If you sold or purchased a
Declared Schedule 1 facilities. (A) If facility’s Annual Declaration of Past declared facility or trading company,
your facility declared production of a Activities (ADPA) or Annual you must submit an amended
Schedule 1 chemical and you also Declaration on Anticipated Activities declaration or report to BIS, either
exported or imported any amount of (ADAA). You must submit an amended before the effective date of the change or

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within 30 days after the effective date of (A) Name of purchaser (i.e., name of amendment to ensure current information is
the change. The amended declaration or company purchasing a declared facility; on file regarding the facility or trading
report must include the following (B) Mailing address of purchaser; company (e.g., for inspection notifications
information: (C) Name of declaration point of and correspondence) and will also forward
the amended declaration to the OPCW to
(i) Information that must be submitted contact (D–POC) for the purchaser,
ensure that they also have current
to BIS by the company selling a including telephone number, facsimile information on file regarding your facility or
declared facility: number, and e-mail address; trading company.
(A) Name of seller (i.e., name of the (D) Name of inspection points of
company selling a declared facility); contact (I–POC) for the purchaser, Note 2 to § 712.7(c): You may notify BIS of
(B) Name of the declared facility and including telephone number(s), change in ownership via a letter to the
U.S. Code Number for that facility; facsimile number(s) and e-mail address given in § 711.6 of the CWCR. If you
(C) Name of purchaser (i.e., name of address(es); are submitting an amended declaration or
the new company purchasing a declared (E) Name of the declared facility and report, use Form B to address details
facility) and identity of contact person regarding the sale of the declared facility or
U.S. Code Number for that facility;
trading company.
for the purchaser, if known; (F) Location of the declared facility;
(D) Date of ownership transfer or (G) Owner and operator of the Note 3 to § 712.7(c): For ownership
change; declared facility, including telephone changes, the declared facility or trading
(E) Additional details on sale of the number, and facsimile number; and company will maintain its original U.S. Code
declared facility relevant to ownership (H) Details on the next declaration or Number, unless the facility or trading
or operational control over any portion report submission on whether the new company is sold to multiple owners, at
of that facility (e.g., whether the entire owner will submit the declaration or which time BIS will assign new U.S. Code
facility or only a portion of the declared report for the entire calendar year Numbers for the new facilities.
facility has been sold to a new owner); during which the ownership change (d) Inspection-related amendments. If,
and occurred, or whether the previous following completion of an inspection
(F) Details regarding whether the new owner and new owner will submit (see parts 716 and 717 of the CWCR),
owner will submit the next declaration separate declarations or reports for the you are required to submit an amended
or report for the entire calendar year periods of the calendar year during declaration based on the final
during which the ownership change which each owned the facility or trading inspection report, BIS will notify you in
occurred, or whether the previous company. writing of the information that will be
owner and new owner will submit (1) If the new owner is taking required pursuant to §§ 716.10 and
separate declarations or reports for the responsibility for submitting the 717.5 of the CWCR. You must submit an
periods of the calendar year during declaration or report for the entire amended declaration to BIS no later
which each owned the facility or trading current year, it must have in its than 45 days following your receipt of
company. possession the records for the period of the BIS post-inspection letter.
(1) If the new owner is responsible for the year during which the previous (e) Non-substantive changes. If,
submitting the declaration or report for owner owned the facility. subsequent to the submission of your
the entire current year, it must have in (2) If the previous owner and new declaration or report to BIS, you
its possession the records for the period owner will submit separate declarations discover one or more non-substantive
of the year during which the previous for the periods of the calendar year typographical errors in your declaration
owner owned the facility. during which each owned the facility, or report, you are not required to submit
(2) If the previous owner and new and, at the time of transfer of an amended declaration or report to BIS.
owner will submit separate declarations ownership, the previous owner’s Instead, you may correct these errors in
for the periods of the calendar year activities are not above the declaration a subsequent declaration or report.
during which each owned the facility thresholds set forth in §§ 712.4 and (f) Documentation required for
(‘‘part-year declarations’’), and if, at the 712.5 of the CWCR, the previous owner amended declarations or reports. If you
time of transfer of ownership, the and the new owner must still submit are required to submit an amended
previous owner’s activities are not declarations to BIS with the below declaration or report to BIS pursuant to
above the declaration thresholds set threshold quantities indicated. paragraph (a), (b), (c), or (d) of this
forth in §§ 712.4 and 712.5 of the (3) If the part-year declarations section, you must submit either:
CWCR, the previous owner and the new submitted by the previous owner and (1) A letter containing all of the
owner must still submit declarations to the new owner are not, when combined, corrected information required, in
BIS with the below threshold quantities above the declaration threshold set forth accordance with the provisions of this
indicated. in §§ 712.4 and 712.5 of the CWCR, BIS section, to amend your declaration or
(3) If the part-year declarations will return the declarations without report; or
submitted by the previous owner and action as set forth in § 712.8 of the (2) Both of the following:
the new owner are not, when combined, CWCR. (i) A new Certification Form (i.e.,
above the declaration threshold set forth (4) If part-year reports are submitted Form 1–1); and
in §§ 712.4 and 712.5 of the CWCR, BIS by the previous owner and the new (ii) The specific forms (e.g., annual
will return the declarations without owner as required in § 712.5 of the declaration on past activities)
action as set forth in § 712.8 of the CWCR, BIS will submit both reports to containing the corrected information
CWCR. the OPCW. required, in accordance with the
(4) If part-year reports are submitted provisions of this part 712, to amend
by the previous owner and the new Note 1 to § 712.7(c): You must submit an
amendment to your most recently submitted your declaration or report.
owner as required in § 712.5 of the
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declaration or report for declaring changes to


CWCR, BIS will submit both reports in § 712.8 Declarations and reports returned
internal company information (e.g., company
the OPCW. without action by BIS.
name change) or changes in ownership of a
(ii) Information that must be facility or trading company that have If you submit a declaration or report
submitted to BIS by the company occurred since the submission of this and BIS determines that the information
purchasing a declared facility: declaration or report. BIS will process the contained therein is not required by the

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24940 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

CWCR, BIS will return the original under this part must be postmarked by well as exports or imports of the same
declaration or report to you, without the appropriate date identified in or different Schedule 1 chemicals, by a
action, accompanied by a letter Supplement No. 2 to this part 712. declared facility during the previous
explaining BIS’s decision. In order to Required declarations, reports, advance calendar year);
protect your confidential business notifications, and amendments include: (d) Annual declaration on anticipated
information, BIS will not maintain a (a) Annual declaration on past activities (anticipated production of
copy of any declaration or report that is activities (Schedule 1 chemical Schedule 1 chemicals in the next
returned without action (RWA). production during the previous calendar calendar year);
However, BIS will maintain a copy of year); (e) Advance notification of any export
the RWA letter. (b) Annual report on exports and to or import from another State Party;
imports of Schedule 1 chemicals from (f) Initial declaration of a new
§ 712.9 Deadlines for submission of facilities, trading companies, and other Schedule 1 chemical production
Schedule 1 declarations, reports, advance
persons (during the previous calendar facility; and
notifications, and amendments.
year); (g) Amended declaration or report,
Declarations, reports, advance (c) Combined declaration and report including combined declaration and
notifications, and amendments required (production of Schedule 1 chemicals, as report.

SUPPLEMENT NO. 1 TO PART 712.—SCHEDULE 1 CHEMICALS


(CAS registry
number)

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

SUPPLEMENT NO. 2 TO PART 712.—DEADLINES FOR SUBMISSION OF SCHEDULE 1 DECLARATIONS, ADVANCE


NOTIFICATIONS, REPORTS, AND AMENDMENTS
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Declarations, advance notifications and reports Applicable forms Due dates

Annual Declaration on Past Activities (previous Certification, 1–1, 1–2,1–2A,1–2B, A (as ap- February 28th of the year following any cal-
calendar year)—Declared facility (past pro- propriate), B (optional). endar year in which more than 100 grams
duction). aggregate of Schedule 1 chemicals were
produced,

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SUPPLEMENT NO. 2 TO PART 712.—DEADLINES FOR SUBMISSION OF SCHEDULE 1 DECLARATIONS, ADVANCE


NOTIFICATIONS, REPORTS, AND AMENDMENTS—Continued
Declarations, advance notifications and reports Applicable forms Due dates

Annual report on exports and imports (previous Certification, 1–1,1–3, A (as appropriate), B February 28th of the year following any cal-
calendar year) (facility, trading company, (optional). endar year in which Schedule 1 chemicals
other persons). were exported or imported.
Combined Declaration and Report ..................... Certification, 1–1, 1–2, 1–2A, 1–2B, 1–3, A February 28th of the year following any cal-
(as appropriate), B (optional). endar year in which Schedule 1 chemicals
were produced, exported, or imported.
Annual Declaration of Anticipated Activities Certification, 1–1, 1–4, A (as appropriate), B September 3rd of the year prior to any cal-
(next calendar year). (optional). endar year in which Schedule 1 activities
are anticipated to occur.
Advance Notification of any export to or import Notify on letterhead. See § 712.6 of the 45 calendar days prior to any export or import
from another State Party. CWCR. of Schedule 1 chemicals, except 3 days
prior to export or import of 5 milligrams or
less of saxitoxin for medical/diagnositc pur-
poses.
Initial Declaration of a new Schedule 1 facility Certification, 1–1, A (as appropriate), B (op- 200 calendar days prior to producing in ex-
(technical description). tional). cess of 100 grams aggregate of Schedule 1
chemicals.
Amended Declaration ......................................... Certification, 1–1, 1–2, 1–2A.
—Chemicals/Activities: § 712.7(a) ............... .......................................................................... —15 calendar days after change in informa-
tion.
—Company information: § 712.7(c) ............. .......................................................................... —30 calendar days after change in informa-
tion.
—Post-inspection letter: § 712.7(d) ............. .......................................................................... —45 calendar days after receipt of letter.
Amended Report § 712.7(b) ............................... Certification, 1–1, 1–3, A (as appropriate), B —15 calendar days after change in informa-
(optional). tion.
Amended Combined Declaration & Report ........ Certification, 1–1, 1–2, 1–2A, 1–3, A (as ap- —15 calendar days after change in informa-
propriate), B (optional). tion.

PART 713—ACTIVITIES INVOLVING this part) to any destination or import regulatory requirements of other federal
SCHEDULE 2 CHEMICALS any Schedule 2 chemical from any agencies); or
destination other than a State Party to (4) Products identified as consumer
Sec. the Convention. See Supplement No. 1 goods packaged for retail sale for
713.1 Prohibition on exports and imports of to part 710 of the CWCR for a list of personal use or packaged for individual
Schedule 2 chemicals to and from States
not Party to the CWC.
States that are party to the Convention. use.
713.2 Annual declaration requirements for Note to § 713.1(a): See § 742.18 of the § 713.2 Annual declaration requirements
plant sites that produce, process or Export Administration Regulations (EAR) (15 for plant sites that produce, process or
consume Schedule 2 chemicals in excess CFR part 742) for prohibitions that apply to consume Schedule 2 chemicals in excess
of specified thresholds. exports of Schedule 2 chemicals to States not of specified thresholds.
713.3 Annual declaration and reporting Party to the CWC.
requirements for exports and imports of (a) Declaration of production,
Schedule 2 chemicals. (b) Paragraph (a) of this section does processing or consumption of Schedule
713.4 Advance declaration requirements for not apply to: 2 chemicals for purposes not prohibited
additionally planned production, by the CWC—(1) Quantities of
processing or consumption of Schedule (1) The export or import of a Schedule
production, processing or consumption
2 chemicals. 2 chemical to or from a State not Party
that trigger declaration requirements.
713.5 Amended declaration or report. to the CWC by a department, agency, or
You must complete the forms specified
713.6 Declarations and reports returned other entity of the United States, or by
without action by BIS.
in paragraph (b) of this section if you
any person, including a member of the
713.7 Deadlines for submission of Schedule have been or will be involved in the
Armed Forces of the United States, who
2 declarations, reports, and amendments. following activities:
is authorized by law, or by an
Supplement No. 1 to Part 713—Schedule 2 (i) Annual declaration on past
appropriate officer of the United States
Chemicals activities. (A) You produced, processed
Supplement No. 2 to Part 713—Deadlines for
to transfer or receive the Schedule 2
or consumed at one or more plants on
Submission of Schedule 2 Declarations, chemical;
your plant site during any of the
Reports, and Amendments (2) Mixtures containing Schedule 2A previous three calendar years, a
Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. chemicals, if the concentration of each Schedule 2 chemical in excess of any of
1601 et seq.; 50 U.S.C. 1701 et seq; E.O. Schedule 2A chemical in the mixture is the following declaration threshold
12938 59 FR 59099, 3 CFR, 1994 Comp., p. 1% or less by weight (note, however, quantities:
950, as amended by E.O. 13094, 63 FR 40803, that such mixtures may be subject to the (1) 1 kilogram of chemical BZ: 3-
3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 regulatory requirements of other federal Quinuclidinyl benzilate (see Schedule
FR 36703, 3 CFR 1999 Comp., p. 199. agencies); 2, paragraph A.3 in Supplement No. 1
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§ 713.1 Prohibition on exports and imports (3) Mixtures containing Schedule 2B to this part);
of Schedule 2 chemicals to and from States chemicals if the concentration of each (2) 100 kilograms of chemical PFIB:
not Party to the CWC. Schedule 2B chemical in the mixture is 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-
(a) You may not export any Schedule 10% or less by weight (note, however, 1-propene or 100 kilograms of chemical
2 chemical (see Supplement No. 1 to that such mixtures may be subject to the Amiton: 0,0-Diethyl S-[2-(diethylamino)

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24942 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

ethyl] phosphorothiolate and (ii) Annual declaration on anticipated forth in paragraphs (a)(1)(i)(A)(1)
corresponding alkylated or protonated activities. You anticipate that you will through (3) of this section, you have a
salts (see Schedule 2, paragraphs A.1 produce, process or consume at one or declaration requirement. For example, if
and A.2 in Supplement No. 1 to this more plants on your plant site during during calendar year 2001, a plant on
part); or the next calendar year, a Schedule 2 your plant site produced a mixture
(3) 1 metric ton of any chemical listed chemical in excess of the applicable containing 300 kilograms of thiodiglycol
in Schedule 2, Part B (see Supplement declaration threshold set forth in in a concentration of 32% and also
No. 1 to this part). paragraphs (a)(1)(i)(A)(1) through (3) of produced 800 kilograms of thiodiglycol,
(B) In order to trigger a declaration this section. the total amount of thiodiglycol
requirement for a past activity (i.e., produced at that plant for CWCR
Note to § 713.2(a)(1)(ii): A null ‘‘0’’
production, processing or consumption) declaration is not required if you do not plan purposes would be 1100 kilograms,
involving a Schedule 2 chemical, a to produce, process or consume a Schedule which exceeds the declaration threshold
plant on your plant site must have 2 chemical in the next calendar year. of 1 metric ton for that Schedule 2
exceeded the applicable declaration chemical. You must declare past
(2) Schedule 2 chemical production. production of thiodiglycol at that plant
threshold for that particular activity
(i) For the purpose of determining site for calendar year 2001. If, on the
during one or more of the previous three Schedule 2 production, you must
calendar years. For example, if a plant other hand, a plant on your plant site
include all steps in the production of a processed a mixture containing 300
on your plant site produced 800 chemical in any units within the same
kilograms of thiodiglycol and consumed kilograms of thiodiglycol in a
plant through chemical reaction, concentration of 25% and also
300 kilograms of the same Schedule 2 including any associated processes (e.g.,
chemical, during the previous calendar processed 800 kilograms of thiodiglycol
purification, separation, extraction, in other than mixture form, the total
year, you would not have a declaration distillation, or refining) in which the
requirement based on these activities, amount of thiodiglycol processed at that
chemical is not converted into another plant for CWCR purposes would be 800
because neither activity at your plant chemical. The exact nature of any
would have exceeded the declaration kilograms and would not trigger a
associated process (e.g., purification, declaration requirement. This is because
threshold of 1 metric ton for that etc.) is not required to be declared.
Schedule 2 chemical. However, a the concentration of thiodiglycol in the
(ii) For the purpose of determining if mixture is less than 30% and therefore
declaration requirement would apply if a Schedule 2 chemical is subject to
an activity involving a Schedule 2 did not have to be ‘‘counted’’ and added
declaration, you must declare an to the other 800 kilograms of processed
chemical at the plant exceeded the intermediate Schedule 2 chemical, but
declaration threshold in an earlier year thiodiglycol at that plant.
not a transient intermediate Schedule 2 (b) Types of declaration forms to be
(i.e., during the course of any other chemical. used—(1) Annual declaration on past
calendar year within the past three (3) Mixtures containing a Schedule 2 activities. You must complete the
calendar years), as indicated in the chemical. (i) Mixtures that must be Certification Form and Forms 2–1, 2–2,
example provided in the note to this counted. You must count the quantity of 2–3, 2–3A, and Form A if one or more
paragraph. each Schedule 2 chemical in a mixture, plants on your plant site produced,
Note to § 713.2(a)(1)(i)(B): To determine when determining the total quantity of processed or consumed more than the
whether or not you have an annual a Schedule 2 chemical produced, applicable threshold quantity of a
declaration on past activities requirement for processed, or consumed at a plant on Schedule 2 chemical described in
Schedule 2 chemicals, you must determine your plant site, if the concentration of paragraphs (a)(1)(i)(A)(1) through (3) of
whether you produced, processed or each Schedule 2 chemical in the this section in any of the three previous
consumed a Schedule 2 chemical above the mixture is 30% or more by volume or calendar years. Form B is optional. If
applicable threshold at one or more plants on by weight, whichever yields the lesser
your plant site in any one of the three
you are subject to annual declaration
previous calendar years. For example, for the
percent. Do not count a Schedule 2 requirements, you must include data for
2004 annual declaration on past activities chemical in the mixture that represents the previous calendar year only.
period, if you determine that one plant on less than 30% by volume or by weight. (2) Annual declaration on anticipated
your plant site produced greater than 1 (ii) How to count the quantity of each activities. You must complete the
kilogram of the chemical BZ in calendar year Schedule 2 chemical in a mixture. If Certification Form and Forms 2–1, 2–2,
2002, and no plants on your plant site your mixture contains 30% or more 2–3, 2–3A, 2–3C, and Form A if you
produced, processed or consumed any concentration of a Schedule 2 chemical, plan to produce, process, or consume at
Schedule 2 chemical above the applicable you must count the quantity (weight) of any plant on your plant site a Schedule
threshold in calendar years 2003 or 2004, you each Schedule 2 chemical in the 2 chemical above the applicable
still have a declaration requirement under mixture, not the total weight of the threshold set forth in paragraphs
this paragraph for the previous calendar year
(2004). However, you must only declare on
mixture. You must separately declare (a)(1)(i)(A)(1) through (3) of this section
Form 2–3 (question 2–3.1), production data each Schedule 2 chemical with a during the following calendar year.
for calendar year 2004. You would declare concentration in the mixture that is 30% Form B is optional.
‘‘0’’ production because you did not produce or more and exceeds the quantity (c) Quantities to be declared—(1)
BZ above the applicable threshold in threshold detailed in paragraphs Production, processing and
calendar year 2004. Since the plant site did (a)(1)(i)(A)(1) through (3) of this section. consumption of a Schedule 2 chemical
not engage in any other declarable activity (iii) Determining declaration above the declaration threshold—(i)
(i.e., consumption, processing) in the 2002– requirements for production, processing Annual declaration on past activities. If
2004 declaration period, you would leave and consumption. If the total quantity of you are required to complete forms
blank questions 2–3.2 and 2–3.3 on Form 2– a Schedule 2 chemical produced, pursuant to paragraph (a)(1)(i) of this
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3. Note that declaring a ‘‘0’’ production


quantity for 2004, as opposed to leaving the
processed or consumed at a plant on section, you must declare the aggregate
question blank, permits BIS to distinguish your plant site, including mixtures that quantity resulting from each type of
the activity that triggered the declaration contain 30% or more concentration of a activity (production, processing or
requirement from activities that were not Schedule 2 chemical, exceeds the consumption) from each plant on your
declarable during that period. applicable declaration threshold set plant site that exceeds the applicable

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Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations 24943

threshold for that Schedule 2 chemical. excess of ten times the applicable (b) Quantities of exports or imports
Do not include in these aggregate declaration threshold set forth in that trigger a declaration or reporting
production, processing, and paragraphs (a)(1)(i)(A)(1) through (3) of requirement. (1) You have a declaration
consumption quantities any data from this section (see part 716 of the CWCR). or reporting requirement and must
plants on the plant site that did not A ‘‘declared’’ Schedule 2 plant site that complete the forms specified in
individually produce, process or has received an initial inspection is paragraph (d) of this section if you
consume a Schedule 2 chemical in subject to routine inspection. exported or imported a Schedule 2
amounts greater than the applicable chemical in excess of the following
threshold. For example, if a plant on § 713.3 Annual declaration and reporting threshold quantities:
requirements for exports and imports of (i) 1 kilogram of chemical BZ: 3-
your plant site produced a Schedule 2
Schedule 2 chemicals.
chemical in an amount greater than the Quinuclidinyl benzilate (See Schedule
applicable declaration threshold during (a) Declarations and reports of exports 2, paragraph A.3 included in
the previous calendar year, you would and imports of Schedule 2 chemicals— Supplement No. 1 to this part);
have to declare only the production (1) Declarations. A Schedule 2 plant site (ii) 100 kilograms of chemical PFIB:
quantity from that plant, provided that that is declared because it produced, 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-
the total amount of the Schedule 2 processed or consumed a Schedule 2 1-propene or 100 kilograms of Amiton:
chemical processed or consumed at the chemical at one or more plants above O,O Diethyl S-[2(diethylamino)ethyl]
plant did not exceed the applicable the applicable threshold set forth in phosphorothiolate and corresponding
declaration threshold during any one of paragraph (b) of this section, and also alkylated or protonated salts (see
the previous three calendar years. If in exported from or imported to the plant Schedule 2, paragraphs A.1 and A.2
the previous calendar year your site that same Schedule 2 chemical included in Supplement No.1 to this
production, processing and above the applicable threshold, must part); or
consumption activities all were below submit export and import information (iii) 1 metric ton of any chemical
the applicable declaration threshold, but as part of its declaration. listed in Schedule 2, Part B (see
your declaration requirement is (2) Reports. The following persons Supplement No.1 to this part).
triggered because of production must submit a report if they (2) Mixtures containing a Schedule 2
activities occurring in an earlier year, individually exported or imported a chemical. The quantity of each
you would declare ‘‘0’’ only for the Schedule 2 chemical above the Schedule 2 chemical contained in a
declared production activities. applicable threshold indicated in mixture must be counted for the
(ii) Annual declaration on anticipated paragraph (b) of this section: declaration or reporting of an export or
activities. If you are required to (i) A declared plant site that exported import only if the concentration of each
complete forms pursuant to paragraph or imported a Schedule 2 chemical that Schedule 2 chemical in the mixture is
(a)(1)(ii) of this section, you must was different than the Schedule 2 30% or more by volume or by weight,
declare the aggregate quantity of any chemical produced, processed or whichever yields the lesser percent. You
Schedule 2 chemical that you plan to consumed at one or more plants at the must declare separately each Schedule 2
produce, process or consume at any plant site above the applicable chemical whose concentration in the
plant(s) on your plant site above the declaration threshold; mixture is 30% or more.
applicable thresholds set forth in (ii) An undeclared plant site; Note 1 to § 713.3(b)(2): See § 713.2(a)(2)(ii)
paragraphs (a)(1)(i)(A)(1) through (3) of (iii) A trading company; or of the CWCR for information on counting
this section during the next calendar (iv) Any other person subject to the amounts of Schedule 2 chemicals contained
year. Do not include in these anticipated CWCR. in mixtures and determining declaration and
aggregate production, processing, and reporting requirements.
consumption quantities any data from Note to § 713.3(a)(1) and (a)(2)(i): A
declared Schedule 2 plant site may need to Note 2 to § 713.3(b)(2): The ‘‘30% and
plants on the plant site that you do not above’’ mixtures rule applies only for
anticipate will individually produce, declare exports or imports of Schedule 2
chemicals that it produced, processed or declaration and reporting purposes. This rule
process or consume a Schedule 2 consumed above the applicable threshold does not apply for purposes of determining
chemical in amounts greater than the and also report exports or imports of different whether the export of your mixture to a non-
applicable thresholds. Schedule 2 chemicals that it did not produce, State Party requires an End-Use Certificate or
(2) Rounding. For the chemical BZ, process or consume above the applicable for determining whether you need an export
report quantities to the nearest threshold quantities. The report may be license from BIS (see § 742.2, § 742.18 and
hundredth of a kilogram (10 grams). For submitted to BIS either with or separately § 745.2 of the Export Administration
PFIB and the Amiton family, report from the annual declaration on past activities Regulations) or from the Department of State
(see § 713.3(d) of the CWCR). (see the International Traffic in Arms
quantities to the nearest 1 kilogram. For Regulations (22 CFR parts 120 through130)).
all other Schedule 2 chemicals, report
Note to § 713.3(a)(2): The U.S. Government (c) Declaration and reporting
quantities to the nearest 10 kilograms. will not submit to the OPCW company-
(d) ‘‘Declared’’ Schedule 2 plant site. requirements—(1) Annual declaration
specific information relating to the export or
A plant site that submitted a declaration import of Schedule 2 chemicals contained in on past activities. A plant site described
pursuant to paragraph (a)(1) of this reports . The U.S. Government will add all in paragraph (a)(1) of this section that
section is a ‘‘declared’’ plant site. export and import information contained in has an annual declaration requirement
(e) Declared Schedule 2 plant sites reports to export and import information for the production, processing, or
subject to initial and routine contained in declarations to establish the consumption of a Schedule 2 chemical
inspections. A ‘‘declared’’ Schedule 2 U.S. national aggregate declaration on for the previous calendar year also must
plant site is subject to initial and routine exports and imports. declare the export and/or import of that
inspection by the Organization for the same Schedule 2 chemical if the amount
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Note to § 713.3(a)(1) and (2): Declared and


Prohibition of Chemical Weapons if it undeclared plant sites must count, for
exceeded the applicable threshold set
produced, processed or consumed in declaration or reporting purposes, all exports forth in paragraph (b) of this section.
any of the three previous calendar years, from and imports to the entire plant site, not The plant site must declare such export
or is anticipated to produce, process or only from or to individual plants on the plant or import information as part of its
consume in the next calendar year, in site. annual declaration of past activities.

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24944 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

(2) Annual report on exports and chemical BZ, the total quantity for each activities. You do not have to submit an
imports. Declared plant sites described country of destination or country of additionally planned declaration if you
in paragraph (a)(2)(i) of this section, and origin (source) should be reported to the are only changing the following non-
undeclared plant sites, trading nearest hundredth of a kilogram (10 quantitative activities:
companies or any other person grams); for PFIB and Amiton and (i) Changes to the plant’s production
(described in paragraphs (a)(2)(ii) corresponding alkylated or protonated capacity;
through (iv) of this section) subject to salts, the quantity for each destination (ii) Changes or additions to the
the CWCR that exported or imported a or source should be reported to the product group codes for the plant site or
Schedule 2 chemical in a previous nearest 1 kilogram; and for all other the plant(s);
calendar year in excess of the applicable Schedule 2 chemicals, the total quantity (iii) Changes to the plant’s activity
thresholds set forth in paragraph (b) of for each destination or source should be status (i.e., dedicated, multipurpose, or
this section must submit an annual reported to the nearest 10 kilograms. other status);
report on such exports or imports. (iv) Changes to the plant’s
(d) Types of declaration and reporting § 713.4 Advance declaration requirements multipurpose activities;
forms to be used—(1) Annual for additionally planned production, (v) Changes to the plant site’s status
declaration on past activities. If you are processing, or consumption of Schedule 2 relating to domestic transfer of the
chemicals. chemical;
a declared Schedule 2 plant site, as
described in paragraph (a)(1) of this (a) Declaration requirements for (vi) Changes to the plant site’s
section, you must complete Form 2–3B, additionally planned activities. (1) You purposes for which the chemical will be
in addition to the forms required by must declare additionally planned produced, processed or consumed; or
§ 713.2(b)(1) of the CWCR, for each production, processing, or consumption (vii) Changes to the plant site’s status
declared Schedule 2 chemical exported of Schedule 2 chemicals after the annual relating to exports of the chemical or the
or imported above the applicable declaration on anticipated activities for addition of new countries for export.
the next calendar year has been (b) Declaration forms to be used. If
threshold in the previous calendar year.
(2) Annual report on exports and delivered to BIS if: you are required to declare additionally
imports. (i) If you are a declared plant (i) You plan that a previously planned activities pursuant to paragraph
site, as described in paragraph (a)(2)(i) undeclared plant on your plant site (a) of this section, you must complete
of this section, you may fulfill your under § 713.2(a)(1)(ii) of the CWCR will the Certification Form and Forms 2–1,
annual reporting requirements by: produce, process, or consume a 2–2, 2–3, and 2–3C as appropriate. Such
(A) Submitting, with your annual Schedule 2 chemical above the forms are due to BIS at least 15 days
declaration on past activities, a Form 2– applicable declaration threshold; prior to beginning the additional
3B for each Schedule 2 chemical you (ii) You plan to produce, process, or activity.
exported or imported above the consume at a plant declared under § 713.5 Amended declaration or report.
applicable threshold. Attach Form A, as § 713.2(a)(1)(ii) of the CWCR an
In order for BIS to maintain accurate
appropriate; Form B is optional; or additional Schedule 2 chemical above information on previously submitted
(B) Submitting, separately from your the applicable declaration threshold; plant site declarations, including
annual declaration on past activities, a (iii) You plan an additional activity
information necessary to facilitate
Certification Form, Form 2–1, and Form (production, processing, or
inspection notifications and activities or
2–3B for each Schedule 2 chemical you consumption) at your declared plant to communicate declaration or reporting
exported or imported above the above the applicable declaration requirements, amended declarations or
applicable threshold. Attach Form A, as threshold for a chemical declared under reports will be required under the
appropriate; Form B is optional. § 713.2(a)(1)(ii) of the CWCR; circumstances described in this section.
(ii) If you are an undeclared plant site, (iv) You plan to increase the This section applies only to annual
trading company or any other person production, processing, or consumption declarations on past activities submitted
subject to the CWCR, you must of a Schedule 2 chemical by a plant for the three previous calendar years,
complete the Certification Form, Form declared under § 713.2(a)(1)(ii) of the annual reports on exports and imports
2–1, and Form 2–3B for each Schedule CWCR from the amount exceeding the for the previous calendar year or annual
2 chemical you exported or imported applicable declaration threshold to an declarations on anticipated activities
above the applicable threshold. Attach amount exceeding the applicable covering the current calendar year,
Form A, as appropriate; Form B is inspection threshold (see § 716.1(b)(2) of unless specified otherwise in a final
optional. the CWCR); inspection report.
(e) Quantities to be declared—(1) (v) You plan to change the starting or (a) Changes to information that
Calculations. If you exported from or ending date of anticipated production, directly affect inspection of a declared
imported to your plant site, trading processing, or consumption declared plant site’s Annual Declaration of Past
company, or other location more than under § 713.2(a)(1)(ii) of the CWCR by Activities (ADPA) or Combined Annual
the applicable threshold of a Schedule more than three months; or Declaration and Report. You must
2 chemical in the previous calendar (vi) You plan to increase your submit an amended declaration or
year, you must declare or report all production, processing, or consumption report to BIS within 15 days of any
exports and imports of that chemical by of a Schedule 2 chemical by a declared change in the following information:
country of destination or country of plant site by 20 percent or more above (1) Types of Schedule 2 chemicals
origin, respectively, and indicate the that declared under § 713.2(a)(1)(ii) of produced, processed, or consumed;
total amount exported to or imported the CWCR. (2) Quantities of Schedule 2
from each country. (2) If you must submit a declaration chemicals produced, processed, or
(2) Rounding. For purposes of on additionally planned activities consumed;
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declaring or reporting exports and because you plan to engage in any of the (3) Activities involving Schedule 2
imports of a Schedule 2 chemical, you activities listed in paragraphs (a)(1)(i) chemicals (production, processing,
must total all exports and imports per through (vi) of this section, you also consumption);
calendar year per recipient or source should declare changes to your (4) End-use of Schedule 2 chemicals
and then round as follows: For the declaration relating to the following (e.g., additional end-use(s));

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(5) Product group codes for Schedule (x) Plant operator, including above the declaration thresholds set
2 chemicals produced, processed, or telephone number and facsimile forth in § 713.2(a)(1)(i)(A)(1) through (3)
consumed; number. of the CWCR, BIS will return the
(6) Production capacity for (2) Change in ownership of company, declarations without action as set forth
manufacturing a specific Schedule 2 plant site, or plant. If you sold or in § 713.6 of the CWCR.
chemical at particular plant site; purchased a declared plant site, plant, (4) If part-year reports submitted by
(7) Exports or imports (e.g., changes in or trading company you must submit an the previous owner and the new owner
the types of Schedule 2 chemicals amended declaration or report to BIS, are not, when combined, above the
exported or imported or in the quantity, either before the effective date of the thresholds in §§ 713.3(b)(1)(i) through
recipients, or sources of such change or within 30 days after the (iii) of the CWCR, BIS will return the
chemicals); effective date of the change. The reports without action as set forth in
(8) Domestic transfers (e.g., changes in amended declaration or report must § 713.6 of the CWCR.
the types of Schedule 2 chemicals, types include the following information: (ii) Information that must be
of destinations, or product group codes); (i) Information that must be submitted submitted to BIS by the company
and to BIS by the company selling a purchasing a declared plant site:
(9) Addition of new plant(s) for the declared plant site: (A) Name of purchaser (i.e., name of
production, processing, or consumption (A) Name of seller (i.e., name of the individual or company purchasing a
of Schedule 2 chemicals. company selling a declared plant site); declared plant site);
(b) Changes to export or import (B) Name of the declared plant site (B) Mailing address of purchaser;
information submitted in Annual and U.S. Code Number for that plant (C) Name of declaration point of
Reports on Exports and Imports from site; contact (D–POC) for the purchaser,
undeclared plant sites, trading (C) Name of purchaser (i.e., name of including telephone number, facsimile
companies and U.S. persons. You must the new company/owner purchasing a number, and e-mail address;
submit an amended report or amended declared plant site) and identity of (D) Name of inspection point(s) of
combined declaration and report to BIS contact person for the purchaser, if contact (I–POC) for the purchaser,
within 15 days of any change in the known; including telephone number(s),
(D) Date of ownership transfer or facsimile number(s) and e-mail
following export or import information:
change; address(es);
(1) Types of Schedule 2 chemicals (E) Additional (e.g., unique) details on
exported or imported (additional (E) Name of the declared plant site
the sale of the declared plant site and U.S. Code Number for that plant
Schedule 2 chemicals); relevant to ownership or operational
(2) Quantities of Schedule 2 site;
control over any portion of the declared (F) Location of the declared plant site;
chemicals exported or imported; plant site (e.g., whether the entire plant
(3) Destination(s) of Schedule 2 (G) Owner of the declared plant site,
site or only a portion of the declared including telephone number, and
chemicals exported; and plant site has been sold to a new facsimile number;
(4) Source(s) of Schedule 2 chemicals owner); and (H) Operator of the declared plant
imported. (F) Details regarding whether the new site, including telephone number, and
(c) Changes to company and plant site owner will submit the next declaration facsimile number;
information that must be maintained by or report for the entire calendar year (I) Name of plant(s) where Schedule 2
BIS for the ADPA, Annual Declaration during which the ownership change activities exceed the applicable
on Anticipated Activities (ADAA), and occurred, or whether the previous declaration threshold;
the Annual Report on Exports and owner and new owner will submit (J) Owner and operator of plant(s)
Imports—(1) Internal company changes. separate declarations or reports for the where Schedule 2 activities exceed the
You must submit an amended periods of the calendar year during applicable declaration threshold,
declaration or report to BIS within 30 which each owned the plant site or including telephone numbers, and
days of any change in the following trading company. facsimile numbers;
information: (1) If the new owner is responsible for (K) Location of the plant where
(i) Name of declaration/report point of submitting the declaration or report for Schedule 2 activities exceed the
contact (D–POC), including telephone the entire current year, it must have in applicable declaration threshold; and
number, facsimile number, and e-mail its possession the records for the period (L) Details on the next declaration or
address; of the year during which the previous report submission on whether the new
(ii) Name(s) of inspection point(s) of owner owned the plant site. owner will submit the declaration or
contact (I–POC), including telephone (2) If the previous owner and new report for the entire calendar year
number(s), facsimile number(s) and e- owner will submit separate declarations during which the ownership change
mail address(es); or reports for the periods of the calendar occurred, or whether the previous
(iii) Company name (see paragraph year during which each owned the plant owner and new owner will submit
(c)(2) of this section for other company site, and, if at the time of transfer of separate declarations or reports for the
changes); ownership, the previous owner’s periods of the calendar year during
(iv) Company mailing address; activities are not above the declaration which each owned the plant site or
(v) Plant site name; or reporting thresholds set forth in trading company.
(vi) Plant site owner, including § 713.2(a)(1)(i)(A)(1) through (3) and
telephone number, and facsimile § 713.3(b)(1)(i) through (iii) of the Note 1 to § 713.5(c): You must submit an
number; CWCR, respectively, the previous owner amendment to your most recently submitted
(vii) Plant site operator, including declaration or report for declaring changes to
and the new owner must still submit
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internal company information (e.g., company


telephone number, and facsimile declarations to BIS with the below name change) or changes in ownership of a
number; threshold quantities indicated. facility or trading company that have
(viii) Plant name; (3) If the part-year declarations occurred since the submission of this
(ix) Plant owner, including telephone submitted by the previous owner and declaration or report. BIS will process the
number, and facsimile number; and the new owner are not, when combined, amendment to ensure current information is

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24946 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

on file regarding the facility or trading an amended declaration or report to BIS. § 713.7 Deadlines for submission of
company (e.g., for inspection notifications Instead, you may correct these errors in Schedule 2 declarations, reports, and
and correspondence) and will also forward a subsequent declaration or report. amendments.
the amended declaration to the OPCW to
(f) Documentation required for Declarations, reports, and
ensure that they also have current
information on file regarding your facility or amended declarations or reports. If you amendments required under this part
trading company. are required to submit an amended must be postmarked by the appropriate
declaration or report to BIS pursuant to date identified in Supplement No. 2 to
Note 2 to § 713.5(c): You may notify BIS of paragraph (a), (b), (c), or (d) of this
change in ownership via a letter to the
this part 713. Required declarations,
section, you must submit either: reports, and amendments include:
address given in § 711.6 of the CWCR. If you (1) A letter containing all of the
are submitting an amended declaration or (a) Annual declaration on past
corrected information required, in
report, use Form B to address details activities (production, processing, or
regarding the sale of the declared plant site accordance with the provisions of this
section, to amend your declaration or consumption of Schedule 2 chemicals
or trading company.
report; or during the previous calendar year);
Note 3 to § 713.5(c): For ownership (2) Both of the following: (b) Annual report on exports and
changes, the declared facility or trading (i) A new Certification Form; and imports of Schedule 2 chemicals by
company will maintain its original U.S. Code (ii) The specific forms required for the
Number, unless the plant site or trading
plant sites, trading companies, and
declaration or report type being other persons subject to the CWCR
company is sold to multiple owners, at
which time BIS will assign new U.S. Code
amended (e.g., annual declaration on (during the previous calendar year);
Numbers. past activities) containing the corrected
information required, in accordance (c) Combined declaration and report
(d) Inspection-related amendments. If, with the requirements of this section, to (production, processing, or
following the completion of an amend your declaration or report. consumption of Schedule 2 chemicals,
inspection (see parts 716 and 717 of the as well as exports or imports of the same
CWCR), you are required to submit an § 713.6 Declarations and reports returned or different Schedule 2 chemicals, by a
amended declaration based on the final without action by BIS. declared plant site during the previous
inspection report, BIS will notify you in If you submit a declaration or report calendar year);
writing of the information that will be and BIS determines that the information (d) Annual declaration on anticipated
required pursuant to §§ 716.10 and contained therein is not required by the activities (production, processing or
717.5 of the CWCR. You must submit an CWCR, BIS will return the original consumption) involving Schedule 2
amended declaration to BIS no later declaration or report to you, without chemicals during the next calendar year;
than 45 days following your receipt of action, accompanied by a letter
explaining BIS’s decision. In order to (e) Declaration on Additionally
BIS’s post-inspection letter.
(e) Non-substantive changes. If, protect your confidential business Planned Activities (production,
subsequent to the submission of your information, BIS will not maintain a processing or consumption) involving
declaration or report to BIS, you copy of any declaration or report that is Schedule 2 chemicals; and
discover one or more non-substantive returned without action (RWA). (f) Amended declaration and report,
typographical errors in your declaration However, BIS will maintain a copy of including combined declaration and
or report, you are not required to submit the RWA letter. report.

SUPPLEMENT NO. 1 TO PART 713.—SCHEDULE 2 CHEMICALS


(CAS registry
number)

A. Toxic chemicals:
(1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts .......... (78–53–5)
(2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene ................................................................................................... (382–21–8)
(3) BZ: 3-Quinuclidinyl benzilate ................................................................................................................................................ (6581–06–2)
B. Precursors:
(4) Chemicals, except for those listed in Schedule 1, containing a phosphorus atom to which is bonded one methyl, ethyl
or propyl (normal or iso) group but not further carbon atoms, e.g. Methylphosphonyl dichloride ......................................... (676–97–1)
Dimethyl methylphosphonate .............................................................................................................................................. (756–79–6)
Exemption: Fonofos: O-Ethyl S-phenyl ethylphosphono-thiolothionate .............................................................................. (944–22–9)
(5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides
(6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr or i-Pr)-phosphoramidates
(7) Arsenic trichloride ................................................................................................................................................................. (7784–34–1)
(8) 2,2-Diphenyl-2-hydroxyacetic acid ........................................................................................................................................ (76–93–7)
(9) Quinuclidine-3-ol ................................................................................................................................................................... (1619–34–7)
(10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and corresponding protonated salts
(11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and corresponding protonated salts
Exemptions: N,N-Dimethylaminoethanol and corresponding protonated salts .................................................................. (108–01–0)
N,N-Diethylaminoethanol and corresponding protonated salts .......................................................................................... (100–37–8)
(12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and corresponding protonated salts
(13) Thiodiglycol: Bis(2-hydroxyethyl)sulfide .............................................................................................................................. (111–48–8)
(14) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol ......................................................................................................................... (464–07–3)
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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).

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Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations 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 Activities (previous Certification, 2–1, 2–2, 2–3, 2–3A, 2–3B (if February 28 of the year following any cal-
calendar year)—Declared plant site (produc- also exported or imported), A (as appro- endar year in which the production, proc-
tion, processing, or consumption). priate), B (optional). essing, or consumption of a Schedule 2
chemical exceeded the applicable declara-
tion thresholds in § 713.2(a)(1)(i) of the
CWCR.
Annual Report on Exports and Imports (pre- Certification, 2–1, 2–3B, A (as appropriate), B February 28 of the year following any cal-
vious calendar year)—Plant site, trading com- (optional). endar year in which exports or imports of a
pany, other persons. Schedule 2 chemical by a plant site, trading
company, or other person subject to the
CWCR (as described in § 713.3(a)(2) of the
CWCR) exceeded the applicable thresholds
in § 713.3(b)(1) of the CWCR.
Combined Declaration & Report—Declared Certification, 2–1, 2–2, 2–3, 2–3A, 2–3B, A February 28 of the year following any cal-
plant site (production, processing, or con- (as appropriate), B (optional). endar year in which the production, proc-
sumption; exports and imports). essing, 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 applica-
ble thresholds in §§ 713.2(a)(1)(i) and
713.3(b)(1), respectively, of the CWCR.
Annual Declaration on Anticipated Activities Certification, 2–1, 2–2, 2–3, 2–3A, 2–3C, A September 3 of the year prior to any calendar
(next calendar year). (as appropriate), B (optional). year in which Schedule 2 activities are an-
ticipated to occur.
Declaration on Additionally Planned Activities Certification, 2–1, 2–2, 2–3, 2–3A, 2–3C, A 15 calendar days before the additionally
(production, processing and consumption). (as appropriate), B (optional). planned activity begins.
Amended Declaration ......................................... Certification, 2–1, 2–2, 2–3 2–3A, 2–3B (if
also exported or imported), A (as appro-
priate), B (optional).
—Declaration information ............................ .......................................................................... —15 calendar days after change in informa-
tion.
—Company information ............................... .......................................................................... —30 calendar days after change in informa-
tion.
—Post-inspection letter ............................... .......................................................................... —45 calendar days after receipt of letter.
Amended Report ................................................ Certification, 2–1, 2–3B, A (as appropriate), B —15 calendar days after change in informa-
(optional). tion.
Amended Combined Declaration & Report ........ Certification, 2–1, 2–2, 2–3, 2–3A, 2–3B, A —15 calendar days after change in informa-
(as appropriate), B (optional). tion.

PART 714—ACTIVITIES INVOLVING § 714.1 Annual declaration requirements any single Schedule 3 chemical in the
SCHEDULE 3 CHEMICALS for plant sites that produce a Schedule 3 next calendar year.
chemical in excess of 30 metric tons. (2) Schedule 3 chemical production.
Sec. (i) For the purpose of determining
714.1 Annual declaration requirements for (a) Declaration of production of
Schedule 3 chemicals for purposes not Schedule 3 production, you must
plant sites that produce a Schedule 3
chemical in excess of 30 metric tons. prohibited by the CWC.—(1) Production include all steps in the production of a
714.2 Annual reporting requirements for quantities that trigger the declaration chemical in any units within the same
exports and imports in excess of 30 requirement. You must complete the plant through chemical reaction,
metric tons of Schedule 3 chemicals. appropriate forms specified in including any associated processes (e.g.,
714.3 Advance declaration requirements for paragraph (b) of this section if you have purification, separation, extraction,
additionally planned production of produced or anticipate producing a distillation, or refining) in which the
Schedule 3 chemicals. chemical is not converted into another
714.4 Amended declaration or report.
Schedule 3 chemical (see Supplement
No. 1 to this part) as follows: chemical. The exact nature of any
714.5 Declarations and reports returned associated process (e.g., purification,
without action by BIS. (i) Annual declaration on past etc.) is not required to be declared.
714.6 Deadlines for submission of Schedule activities. You produced at one or more
3 declarations, reports, and amendments. (ii) For the purpose of determining if
plants on your plant site in excess of 30 a Schedule 3 chemical is subject to
Supplement No. 1 to Part 714—Schedule 3 metric tons of any single Schedule 3
Chemicals declaration, you must declare an
Supplement No. 2 to Part 714—Deadlines for
chemical during the previous calendar intermediate Schedule 3 chemical, but
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Submission of Schedule 3 Declarations, year. not a transient intermediate Schedule 3


Reports, and Amendments (ii) Annual declaration on anticipated chemical.
Authority: 22 U.S.C. 6701 et seq.; E.O. activities. You anticipate that you will (3) Mixtures containing a Schedule 3
13128, 64 FR 36703, 3 CFR 1999 Comp., p. produce at one or more plants on your chemical. (i) When you must count the
199. plant site in excess of 30 metric tons of quantity of a Schedule 3 chemical in a

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mixture for declaration purposes. The section is a ‘‘declared’’ Schedule 3 plant for purposes of determining whether the
quantity of each Schedule 3 chemical site. export of your mixture to a non-State Party
contained in a mixture must be counted (e) Routine inspections of declared requires an End-Use Certificate or for
for declaration purposes only if the Schedule 3 plant sites. A ‘‘declared’’ determining whether you need an export
license from BIS (see 15 CFR 742.2, 742.18
concentration of each Schedule 3 Schedule 3 plant site is subject to
and 745.2 of the Export Administration
chemical in the mixture is 80% or more routine inspection by the Organization Regulations) or from the Department of State
by volume or by weight, whichever for the Prohibition of Chemical (see the International Traffic in Arms
yields the lesser percent. Weapons (see part 716 of the CWCR) if: Regulations (22 CFR parts 120 through 130)).
(ii) How to count the amount of a (1) The declared plants on your plant
Schedule 3 chemical in a mixture. If site produced in excess of 200 metric (b) Types of forms to be used.—(1)
your mixture contains 80% or more tons aggregate of any Schedule 3 Declared Schedule 3 plant sites. (i) If
concentration of a Schedule 3 chemical, chemical during the previous calendar your plant site is declared for
you must count only the amount year; or production of a Schedule 3 chemical
(weight) of the Schedule 3 chemical in (2) You anticipate that the declared (and has completed questions 3–3.1 and
the mixture, not the total weight of the plants on your plant site will produce 3–3.2 on Form 3–3) and you also
mixture. in excess of 200 metric tons aggregate of exported from or imported to your plant
(b) Types of declaration forms to be any Schedule 3 chemical during the site in excess of 30 metric tons of that
used.—(1) Annual declaration on past next calendar year. same Schedule 3 chemical, you must
activities. You must complete the report the export or import by either:
§ 714.2 Annual reporting requirements for (A) Completing question 3–3.3 on
Certification Form and Forms 3–1, 3–2, exports and imports in excess of 30 metric Form 3–3 on your declaration for that
3–3, and Form A if one or more plants tons of Schedule 3 chemicals. same Schedule 3 chemical; or
on your plant site produced in excess of (a) Any person subject to the CWCR (B) Submitting, separately from your
30 metric tons of any single Schedule 3 that exported from or imported into the declaration, a Certification Form, Form
chemical during the previous calendar United States in excess of 30 metric tons 3–1, and a Form 3–3 for each Schedule
year. Form B is optional. of any single Schedule 3 chemical 3 chemical to be reported, completing
(2) Annual declaration on anticipated during the previous calendar year has a only question 3–3.3. Attach Form A, as
activities. You must complete the reporting requirement under this appropriate; Form B is optional.
Certification Form, and Forms 3–1 and section. (ii) If your plant site is declared for
3–3 if you anticipate that you will (1) Annual report on exports and production of a Schedule 3 chemical
produce at one or more plants on your imports. Declared plant sites, and you exported or imported in excess
plant site in excess of 30 metric tons of undeclared plant sites, trading of 30 metric tons of a different Schedule
any single Schedule 3 chemical in the companies, or any other person subject 3 chemical, you must report the export
next calendar year. to the CWCR that exported from or or import by either:
(c) Quantities to be declared. (1) imported into the United States in (A) Submitting, along with your
Production of a Schedule 3 chemical in excess of 30 metric tons of any single declaration, a Form 3–3 for each
excess of 30 metric tons. If your plant Schedule 3 chemical during the Schedule 3 chemical to be reported,
site is subject to the declaration previous calendar year must submit an completing only question 3–3.3. Attach
requirements of paragraph (a) of this annual report on exports and imports. Form A, as appropriate; Form B is
section, you must declare the range optional; or
within which the production at your Note 1 to § 714.2(a)(1): Declared and
undeclared plant sites must count, for
(B) Submitting, separately from your
plant site falls (30 to 200 metric tons, declaration, a Certification Form, Form
reporting purposes, all exports from and
200 to 1,000 metric tons, etc.) as imports to the entire plant site, not only from 3–1 and a Form 3.3 for each Schedule
specified on Form 3–3. When specifying or to individual plants on the plant site. 3 chemical to be reported, completing
the range of production for your plant only question 3–3.3. Attach Form A, as
site, you must aggregate the production Note 2 to § 714.2(a)(1): The U.S. appropriate; Form B is optional.
quantities of all plants on the plant site Government will not submit to the OPCW (2) If you are an undeclared plant site,
that produced the Schedule 3 chemical company-specific information relating to the a trading company, or any other person
in amounts greater than 30 metric tons. export or import of Schedule 3 chemicals
subject to the CWCR, you must submit
Do not aggregate amounts of production contained in reports. The U.S. Government
will add all export and import information a Certification Form, Form 3–1, and a
from plants on the plant site that did not contained in reports to establish the U.S. Form 3–3 for each Schedule 3 chemical
individually produce a Schedule 3 national aggregate declaration on exports and to be reported, completing only question
chemical in amounts greater than 30 imports. 3–3.3. Attach Form A, as appropriate;
metric tons. You must complete a Form B is optional.
separate Form 3–3 for each Schedule 3 (2) Mixtures containing a Schedule 3 (c) Quantities to be reported—(1)
chemical for which production at your chemical. The quantity of a Schedule 3 Calculations. If you exported from or
plant site exceeds 30 metric tons. chemical contained in a mixture must imported to your plant site or trading
(2) Rounding. To determine the be counted for reporting an export or company more than 30 metric tons of a
production range into which your plant import only if the concentration of the Schedule 3 chemical in the previous
site falls, add all the production of the Schedule 3 chemical in the mixture is calendar year, you must report all
declared Schedule 3 chemical during 80% or more by volume or by weight, exports and imports of that chemical by
the calendar year from all plants on whichever yields the lesser percent. For country of destination or country of
your plant site that produced the reporting purposes, only count the origin, respectively, and indicate the
Schedule 3 chemical in amounts weight of the Schedule 3 chemical in total amount exported to or imported
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exceeding 30 metric tons, and round to the mixture, not the entire weight of the from each country.
the nearest ten metric tons. mixture. (2) Rounding. For purposes of
(d) ‘‘Declared’’ Schedule 3 plant site. Note to § 714.2(a)(2): The ‘‘80% and reporting exports and imports of a
A plant site that submitted a declaration above’’ mixtures rule applies only for Schedule 3 chemical, you must total all
pursuant to paragraph (a)(1) of this reporting purposes. This rule does not apply exports and imports per calendar year

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per recipient or source and then round 3–2, and 3–3 as appropriate. Such forms company changes. You must submit an
to the nearest 0.1 metric tons. are due to BIS at least 15 days in amended declaration or report to BIS
advance of the beginning of the within 30 days of any change in the
Note to § 714.2(c): Under the Convention,
the United States is obligated to provide the additional or new activity. following information:
OPCW a national aggregate annual (i) Name of declaration/report point of
§ 714.4 Amended declaration or report. contact (D–POC), including telephone
declaration of the quantities of each Schedule
3 chemical exported and imported, with a In order for BIS to maintain accurate number, facsimile number, and e-mail
quantitative breakdown for each country or information on previously submitted address;
destination involved. The U.S. Government plant site declarations, including (ii) Name(s) of inspection point(s) of
will not submit your company-specific information necessary to facilitate contact (I–POC), including telephone
information relating to the export or import inspection notifications and activities or number, and facsimile number, and e-
of a Schedule 3 chemical reported under this to communicate declaration or reporting mail address(es);
§ 714.2. The U.S. Government will add all (iii) Company name (see 714.4(c)(2)
requirements, amended declarations or
export and import information submitted by
various facilities under this section to reports will be required under the for other company changes);
produce a national aggregate annual following circumstances described in (iv) Company mailing address;
declaration of destination-by-destination this section. This section applies only to (v) Plant site name;
trade for each Schedule 3 chemical. annual declarations on past activities (vi) Plant site owner, including
and annual reports on exports and telephone number and facsimile
§ 714.3 Advance declaration requirements imports submitted for the previous number;
for additionally planned production of calendar year or annual declarations on (vii) Plant site operator, including
Schedule 3 chemicals. anticipated activities covering the telephone number and facsimile
(a) Declaration requirements. (1) You number;
current calendar year, unless specified
(viii) Plant name;
must declare additionally planned otherwise in a final inspection report. (xi) Plant owner, including telephone
production of Schedule 3 chemicals (a) Changes to information that number and facsimile number; and
after the annual declaration on directly affects a declared plant site’s (x) Plant operator, including
anticipated activities for the next Annual Declaration of Past Activities telephone number and facsimile
calendar year has been delivered to BIS (ADPA) or Combined Annual number.
if: Declaration or Report which was (2) Change in ownership of company,
(i) You plan that a previously previously submitted to BIS. You must plant site, or plant. If you sold or
undeclared plant on your plant site submit an amended declaration or purchased a declared company, plant
under § 714.1(a)(1)(ii) of the CWCR will report to BIS within 15 days of site or plant, you must submit an
produce a Schedule 3 chemical above determining that there has been a amended declaration or report to BIS,
the declaration threshold; change in any of the following either before the effective date of the
(ii) You plan to produce at a plant information that you have previously change or within 30 days after the
declared under § 714.1(a)(1)(ii) of the declared or reported: effective date of the change. The
CWCR an additional Schedule 3 (1) Types of Schedule 3 chemicals amended declaration or report must
chemical above the declaration produced (e.g., production of additional include the following information.
threshold; Schedule 3 chemicals); (i) Information that must be submitted
(iii) You plan to increase the (2) Production range (e.g., from 30 to to BIS by a company selling a declared
production of a Schedule 3 chemical by 200 metric tons to above 200 to 1000 plant site:
declared plants on your plant site from metric tons) of Schedule 3 chemicals; (A) Name of seller (i.e., name of the
the amount exceeding the applicable (3) Purpose of Schedule 3 chemical company selling a declared plant site);
declaration threshold to an amount production (e.g., additional end-uses); (B) Name of declared plant site and
exceeding the applicable inspection or U.S. Code Number for that plant site;
threshold (see § 716.1(b)(3) of the (4) Addition of new plant(s) for (C) Name of purchaser (i.e., name of
CWCR); or production of Schedule 3 chemicals. company purchasing a declared plant
(iv) You plan to increase the aggregate (b) Changes to export or import site) and identity of the new owner and
production of a Schedule 3 chemical at information submitted in Annual contact person for the purchaser, if
a declared plant site to an amount above Reports on Exports and Imports from known;
the upper limit of the range previously undeclared plant sites, trading (D) Date of ownership transfer;
declared under § 714.1(a)(1)(ii) of the companies and U.S. persons. You must (E) Additional (e.g., unique) details on
CWCR. submit an amended report or amended the sale of the plant site relevant to
(2) If you must submit a declaration combined declaration and report to BIS ownership or operational control over
on additionally planned activities within 15 days of any change in the any portion of the declared plant site
because you plan to engage in any of the following export or import information: (e.g., whether the entire plant site or
activities listed in paragraphs (a)(1)(i) (1) Types of Schedule 3 chemicals only a portion of the declared plant site
through (iv) of this section, you also exported or imported (additional has been sold to a new owner); and
should declare any changes to the Schedule 3 chemicals); (F) Details regarding whether the new
anticipated purposes of production or (2) Quantities of Schedule 3 owner will submit the declaration or
product group codes. You do not have chemicals exported or imported; report for the entire calendar year
to submit a declaration on additionally (3) Destination(s) of Schedule 3 during which the ownership change
planned activities if you are only chemicals exported; and occurred, or whether the previous
changing your purposes of production (4) Source(s) of Schedule 3 chemicals owner and the new owner will submit
or product group codes. imported. separate declarations or reports for the
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(b) Declaration forms to be used. If (c) Changes to company and plant site periods of the calendar year during
you are required to declare additionally information submitted in the ADPA, the which each owned the plant site or
planned activities pursuant to paragraph Annual Declaration of Anticipated trading company.
(a) of this section, you must complete Activities, and the Annual Report on (1) If the new owner is responsible for
the Certification Form and Forms 3–1, Exports and Imports—(1) Internal submitting the declaration or report for

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24950 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

the entire current year, it must have in during which the ownership change accordance with the provisions of this
its possession the records for the period occurred, or whether the previous section, to amend your declaration or
of the year during which the previous owner and new owner will submit report; or
owner owned the plant site or trading separate declarations or reports for the (2) Both of the following:
company. periods of the calendar year during (i) A new Certification Form; and
(2) If the previous owner and new which each owned the plant site or
(ii) The specific forms required for the
owner will submit separate declarations trading company.
declaration or report type being
or reports for the periods of the calendar
Note 1 to § 714.4(c): You must submit an amended (e.g., annual declaration on
year during which each owned the plant amendment to your most recently submitted past activities) containing the corrected
site or trading company, and, at the time declaration or report for declaring changes to information required, in accordance
of transfer of ownership, the previous internal company information (e.g., company with the requirements of this section, to
owner’s activities are not above the name change) or changes in ownership of a
amend your declaration or report.
declaration or reporting thresholds set facility or trading company that have
forth in § 714.1(a)(1) and § 714.2(a)(1) of occurred since the submission of this § 714.5 Declarations and reports returned
the CWCR, respectively, the previous declaration or report. BIS will process the without action by BIS.
amendment to ensure current information is
owner and the new owner must still If you submit a declaration or report
on file regarding the facility or trading
submit declarations to BIS with the company (e.g., for inspection notifications and BIS determines that the information
below threshold quantities indicated. and correspondence) and will also forward contained therein is not required by the
(3) If the part-year declarations the amended declaration to the OPCW to CWCR, BIS will return the original
submitted by the previous owner and ensure that they also have current
declaration or report to you, without
the new owner are not, when combined, information on file regarding your facility or
trading company. action, accompanied by a letter
above the declaration threshold set forth
explaining BIS’s decision. In order to
in § 714.1(a)(1) of the CWCR, BIS will
Note 2 to § 714.4(c): You may notify BIS of protect your confidential business
return the declarations without action as change in ownership via a letter to the information, BIS will not maintain a
set forth in § 714.5 of the CWCR. address given in § 711.6 of the CWCR. If you
(4) If part-year reports are not, when copy of any declaration or report that is
are submitting an amended declaration or returned without action. However, BIS
combined, above the reporting threshold report, use Form B to address details
set forth in § 714.2(a)(1) of the CWCR, will maintain a copy of the RWA letter.
regarding the sale of the declared plant site
BIS will return the reports without or trading company. § 714.6 Deadlines for submission of
action as set forth in § 714.5 of the Schedule 3 declarations, reports, and
CWCR. Note 3 to § 714.4(c): For ownership amendments.
changes, the declared plant site or trading
(ii) Information that must be Declarations, reports, and
company will maintain its original U.S. Code
submitted to BIS by the company Number, unless the plant site or trading amendments required under this part
purchasing a declared plant site: company is sold to multiple owners, at must be postmarked by the appropriate
(A) Name of purchaser (i.e., name of which time BIS will assign new U.S. Code date identified in Supplement No. 2 to
individual or company purchasing a Numbers. this part 714 of the CWCR. Required
declared plant site);
(d) Inspection-related amendments. If, declarations, reports, and amendments
(B) Mailing address of purchaser;
(C) Name of declaration point of following the completion of an include:
contact (D–POC) for the purchaser, inspection (see parts 716 and 717 of the (a) Annual declaration on past
including telephone number, facsimile CWCR), you are required to submit an activities (production of Schedule 3
number, and e-mail address; amended declaration based on the final chemicals during the previous calendar
(D) Name(s) of inspection point(s)s of inspection report, BIS will notify you in year);
contact (I–POC) for the purchaser, writing of the information to be (b) Annual report on exports and
including telephone number, facsimile amended pursuant to §§ 716.10 and imports of Schedule 3 chemicals from
number, and e-mail address(es); 717.5(b) of the CWCR. Amended plant sites, trading companies, and
(E) Name of the declared plant site declarations must be submitted to BIS other persons subject to the CWCR
and U.S. Code Number for that plant no later than 45 days following your (during the previous calendar year);
site; receipt of BIS’s post-inspection letter. (c) Combined declaration and report
(F) Location of the declared plant site; (e) Non-substantive changes. If, (production of Schedule 3 chemicals, as
(G) Operator of the declared plant site, subsequent to the submission of your well as exports or imports of the same
including telephone number, and declaration or report to BIS, you or different Schedule 3 chemicals, by a
facsimile number; discover one or more non-substantive declared plant site during the previous
(H) Name of plant where Schedule 3 typographical errors in your declaration calendar year);
production exceeds the declaration or report, you are not required to submit
(d) Annual declaration on anticipated
threshold; an amended declaration or report to BIS.
(I) Owner of plant where Schedule 3 activities (anticipated production of
Instead, you may correct these errors in
production exceeds the declaration Schedule 3 chemicals during the next
a subsequent declaration or report.
threshold; (f) Documentation required for calendar year);
(J) Operator of plant where Schedule amended declarations or reports. If you (e) Declaration on Additionally
3 production exceeds the declaration are required to submit an amended Planned Activities (additionally
threshold; and declaration or report to BIS pursuant to planned production of Schedule 3
(K) Details on the next declaration or paragraph (a), (b), (c), or (d) of this chemicals); and
report submission on whether the new section, you must submit either: (f) Amended declaration and report,
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owner will submit the declaration or (1) A letter containing all of the including combined declaration and
report for the entire calendar year corrected information required, in report.

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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 Activities (previous Certification, 3–1, 3–2, 3–3 (if also exported February 28 of the year following any cal-
calendar year)—Declared plant site (produc- or imported), A (as appropriate), B (op- endar year in which the production of a
tion). tional). Schedule 3 chemical exceeded the declara-
tion threshold in § 714.1(a)(1)(i) of the
CWCR.
Annual Report on Exports and Imports (pre- Certification, 3–1, 3–3.3 and 3–3.4, A (as ap- February 28 of the year following any cal-
vious calendar year)—Plant site, trading com- propriate), B (optional). endar year in which exports or imports of a
pany, other persons. Schedule 3 chemical by a plant site, trading
company, or other person subject to the
CWCR (as described in § 714.2(a) of the
CWCR) exceeded the threshold in
§ 714.2(a) of the CWCR.
Combined Declaration & Report ........................ Certification, 3–1, 3–2, and 3–3, A (as appro- February 28 of the year following any cal-
priate), B (optional). endar year in which the production of a
Schedule 3 chemical and the export or im-
port of the same or a different Schedule 3
chemical by a declared plant site exceeded
the applicable thresholds in §§ 714.1(a)(1)(i)
and 714.2(a), respectively, of the CWCR.
Annual Declaration on Anticipated Activities Certification, 3–1, 3–2, 3–3.2, A (as appro- September 3 of the year prior to any calendar
(Production) (next calendar year). priate), B (optional). year in which Schedule 3 production is an-
ticipated to occur.
Declaration on Additionally Planned Activities ... Certification, 3–1, 3–3.1 and 3–3.2, A (as ap- 15 calendar days before the additionally
propriate), B (optional). planned activity begins.
Amended Declaration ......................................... Certification, 3–1, 3–2, 3–3.
—Declaration information ............................ .......................................................................... —15 calendar days after change in informa-
tion.
—Company information ............................... .......................................................................... —30 calendar days after change in informa-
tion.
—Post-inspection letter ............................... .......................................................................... —45 calendar days after receipt of letter.
Amended Report ................................................ Certification, 3–1, 3–2, 3–3, A (as appro- —15 calendar days after change in informa-
priate), B (optional). tion.
Amended Combined Declaration & Report ........ Certification, 3–1, 3–2, 3–3, A (as appro- —15 calendar days after change in informa-
priate), B (optional). tion.
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PART 715—ACTIVITIES INVOLVING 715.1 Annual declaration requirements for 715.4 Deadlines for submitting UDOC
UNSCHEDULED DISCRETE ORGANIC production by synthesis of unscheduled declarations, no changes authorization
discrete organic chemicals (UDOCs). forms, and amendments.
CHEMICALS (UDOCs) 715.2 Amended declaration. Supplement No. 1 to Part 715—Definition of
Sec. 715.3 Declarations returned without action an Unscheduled Discrete Organic
by BIS. Chemical

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Supplement No. 2 to Part 715—Examples of Note to § 715.1(a)(2): See Supplement No. current information necessary to
Unscheduled Discrete Organic 2 to this part 715 for examples of UDOCs facilitate inspection notifications and
Chemicals (UDOCS) and UDOC subject to the declaration requirements of activities or to communicate declaration
Production this part, and for examples of activities that requirements, amended declarations
Supplement No. 3 to Part 715—Deadlines for are not considered production by synthesis.
Submission of Declarations, No Changes
will be required under the following
Authorization Forms, and Amendments (3) Exemptions for UDOC plant sites. circumstances described in this section.
for Unscheduled Discrete Organic UDOC plant sites that exclusively This section applies only to annual
Chemical (UDOC) Facilities produced hydrocarbons or explosives declarations on past activities submitted
Authority: 22 U.S.C. 6701 et seq.; E.O. are exempt from UDOC declaration for the previous calendar year, unless
13128, 64 FR 36703, 3 CFR 1999 Comp., p. requirements. For the purposes of this specified otherwise in a final inspection
199. part, the following definitions apply for report.
hydrocarbons and explosives: (a) Changes to information that
§ 715.1 Annual declaration requirements (i) Hydrocarbon means any organic directly affects a declared plant site’s
for production by synthesis of unscheduled compound that contains only carbon Annual Declaration of Past Activities
discrete organic chemicals (UDOCs). (ADPA) which was previously submitted
and hydrogen; and
(a) Declaration of production by (ii) Explosive means a chemical (or a to BIS. You must submit an amended
synthesis of UDOCs for purposes not mixture of chemicals) that is included declaration to BIS within 15 days of any
prohibited by the CWC.—(1) Production in Class 1 of the United Nations change in the following information:
quantities that trigger the declaration Organization hazard classification (1) Product group codes for UDOCs
requirement. See § 711.6 of the CWCR system. produced in quantities exceeding the
for information on obtaining the forms (b) Types of declaration forms to be applicable declaration threshold
you will need to declare production of used.—(1) Annual declaration on past specified in § 715.1(a)(1) of the CWCR;
unscheduled discrete organic chemicals. activities. You must complete the (2) Approximate number of plants at
You must complete the forms specified Certification Form and Form UDOC the declared plant site that produced
in paragraph (b) of this section if your (consisting of two pages), unless there any amount of UDOCs (including all
plant site produced by synthesis: are no changes from the previous year’s PSF chemicals);
(i) In excess of 200 metric tons declaration and you submit a No (3) Aggregate amount of production
aggregate of all UDOCs (including all Changes Authorization Form pursuant (by production range) of UDOCs
UDOCs containing the elements to paragraph (b)(2) of this section. produced by all plants at the declared
phosphorus, sulfur or fluorine, referred Attach Form A as appropriate; Form B plant site;
to as ‘‘PSF chemicals’’) during the is optional. (4) Exact number of plants at the
previous calendar year; or (2) No Changes Authorization Form. declared plant site that individually
(ii) In excess of 30 metric tons of an You may complete the No Changes produced more than 30 metric tons of a
individual PSF chemical at one or more Authorization Form if there are no single PSF chemical; and
plants at your plant site during the updates or changes to any information (5) Production range of each plant at
previous calendar year. (except the certifying official and dates the declared plant site that individually
signed and submitted) in your plant produced more than 30 metric tons of a
Note to § 715.1(a)(1)(ii): In calculating the single PSF chemical.
aggregate production quantity of each site’s previously submitted annual
declaration on past activities. Your (b) Changes to company and plant
individual PSF chemical produced by a PSF
plant site’s activities will be declared to site information submitted in the ADPA
plant, do not include production of a PSF
chemical that was produced in quantities less the OPCW and subject to inspection, if that must be maintained by BIS.—(1)
than 30 metric tons. Include only production applicable, based upon the data Internal company changes. You must
quantities from those PSF plants that reported in the most recent UDOC submit an amended declaration to BIS
produced more than 30 metric tons of an Declaration that you submitted to BIS. within 30 days of any change in the
individual PSF chemical. following information:
Note to § 715.1(b)(2): If, after submitting (i) Name of declaration point of
(2) UDOCs subject to declaration the No Changes Authorization Form, you contact (D–POC), including telephone
requirements under this part. (i) UDOCs have changes to information, you must number, facsimile number, and e-mail
subject to declaration requirements submit a complete amendment to the annual
address;
under this part are those produced by declaration on past activities. See § 715.2 of
the CWCR.
(ii) Name(s) of inspection point(s) of
synthesis that have been isolated for:
contact (I–POC), including telephone
(A) Use; or (c) ‘‘Declared’’ UDOC plant site. A number, facsimile number(s) and e-mail
(B) Sale as a specific end product. plant site that submitted a declaration address(es);
(ii) Exemptions. (A) Polymers and pursuant to paragraph (a)(1) of this (iii) Company name (see 715.2(b)(2)
oligomers consisting of two or more section is a ‘‘declared’’ UDOC plant site. for other company changes);
repeating units; (d) Routine inspections of declared (iv) Company mailing address;
(B) Chemicals and chemical mixtures UDOC plant sites. A ‘‘declared’’ UDOC (v) Plant site name;
produced through a biological or plant site is subject to routine (vi) Plant site owner, including
biomediated process; inspection by the Organization for the telephone number and facsimile
(C) Products from the refining of Prohibition of Chemical Weapons (see number; and
crude oil, including sulfur-containing part 716 of the CWCR) if it produced by (vii) Plant site operator, including
crude oil; synthesis more than 200 metric tons telephone number and facsimile
(D) Metal carbides (i.e., chemicals aggregate of UDOCs during the previous number.
consisting only of metal and carbon); calendar year. (2) Change in ownership of company
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and or plant site. If you sold or purchased


(E) UDOCs produced by synthesis that § 715.2 Amended declaration. a declared plant site, you must submit
are ingredients or by-products in foods In order for BIS to maintain accurate an amended declaration to BIS, either
designed for consumption by humans information on previously submitted before the effective date of the change or
and/or animals. plant site declarations, including within 30 days after the effective date of

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the change. The amended declaration including telephone number(s), than 45 days following your receipt of
must include the following information. facsimile number(s), and e-mail BIS’s post-inspection letter.
(i) Information that must be submitted address(es); (d) Non-substantive changes. If,
to BIS by the company selling a (E) Name of the declared plant site subsequent to the submission of your
declared plant site: and U.S. Code Number for that plant declaration to BIS, you discover one or
(A) Name of seller (i.e., name of site; more non-substantive typographical
company selling a declared plant site); (F) Location of the declared plant site; errors in your declaration, you are not
(B) Name of declared plant site name (G) Name of plant site where the required to submit an amended
and U.S. Code Number for that plant production of UDOCs exceeds the declaration to BIS. Instead, you may
site; applicable declaration threshold; correct these errors in a subsequent
(C) Name of purchaser (i.e., name of (H) Owner of plant site where the declaration.
new company purchasing a declared production of UDOCs exceeds the
plant site) and identity of contact person (e) Documentation required for
applicable declaration threshold, amended declarations. If you are
for the purchaser, if known; including telephone number and
(D) Date of ownership transfer or required to submit an amended
facsimile number; declaration to BIS pursuant to paragraph
change; (I) Operator of plant site where the
(E) Additional details on the sale of (a), (b), or (c) of this section, you must
production of UDOCs exceeds the submit either:
the declared plant site relevant to
applicable declaration threshold,
ownership or operational control over (1) A letter containing all of the
including telephone number and
any portion of the declared plant site corrected information required, in
facsimile number; and
(e.g., whether the entire plant site or accordance with the provisions of this
(J) Details on the next declaration or
only a portion of the declared plant site section, to amend your declaration; or
report submission on whether the new
has been sold to a new owner); and (2) Both of the following:
(F) Details regarding whether the new owner will submit the declaration or
owner will submit the declaration for report for the entire calendar year (i) A new Certification Form; and
the entire calendar year during which during which the ownership change (ii) The specific form required for the
the ownership change occurred, or occurred, or whether the previous declaration containing the corrected
whether the previous owner and new owner and new owner will submit information required, in accordance
owner will submit separate declarations separate declarations or report for the with the requirements of this section, to
for the periods of the calendar year periods of the calendar year during amend your declaration.
during which each owned the plant site. which each owned the plant site.
(1) If the new owner is responsible for § 715.3 Declarations returned without
Note 1 to § 715.2(b): You must submit an
action by BIS.
submitting the declaration for the entire amendment to your most recently submitted
current year, it must have in its declaration or report for declaring changes to If you submit a declaration and BIS
possession the records for the period of internal company information (e.g., company determines that the information
the year during which the previous name change) or changes in ownership of a contained therein is not required by the
owner owned the plant site. facility or trading company that have CWCR, BIS will return the original
occurred since the submission of this
(2) If the previous owner and new declaration to you, without action,
declaration or report. BIS will process the
owner will submit separate declarations amendment to ensure current information is accompanied by a letter explaining
for the periods of the calendar year on file regarding the facility or trading BIS’s decision. In order to protect your
during which each owned the plant site, company (e.g., for inspection notifications confidential business information, BIS
and, if at the time of transfer of and correspondence) and will also forward will not maintain a copy of any
ownership, the previous owner’s the amended declaration to the OPCW to declaration that is returned without
activities are not above the declaration ensure that they also have current action. However, BIS will maintain a
thresholds set forth in § 715.1(a)(1) of information on file regarding your facility or copy of the RWA letter.
the CWCR, the previous owner and the trading company.
new owner must still submit § 715.4 Deadlines for submitting UDOC
Note 2 to § 715.2(b): You may notify BIS of declarations, no changes authorization
declarations to BIS with the below change in ownership via a letter to the forms, and amendments.
threshold quantities indicated. address given in § 711.6 of the CWCR. If you
(3) If the part-year declarations are submitting an amended declaration, use Declarations, no changes
submitted by the previous owner and Form B to address details regarding the sale authorization forms, and amendments
the new owner are not, when combined, of the declared plant site. required under this part must be
above the declaration threshold set forth postmarked by the appropriate dates
in § 715.1(a)(1) of the CWCR, BIS will Note 3 to § 715.2(b): For ownership identified in Supplement No. 3 to this
changes, the declared plant site will maintain
return the declarations without action as part 715 of the CWCR. Required
its original U.S. Code Number, unless the
set forth in § 715.3 of the CWCR. plant site is sold to multiple owners, at documents under this part include:
(ii) Information that must be which time BIS will assign new U.S. Code (a) Annual Declaration on Past
submitted to BIS by the company Numbers. Activities (UDOC production during the
purchasing a declared plant site: previous calendar year);
(A) Name of purchaser (i.e., name of (c) Inspection-related amendments. If,
individual or company purchasing a following completion of an inspection (b) No Changes Authorization Form
declared plant site); (see part 716 or 717 of the CWCR), you (may be completed and submitted to BIS
(B) Mailing address of purchaser; are required to submit an amended when there are no changes to any
(C) Name of declaration point of declaration based on the final information in your plant site’s
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contact (D–POC) for the purchaser, inspection report, BIS will notify you in previously submitted annual declaration
including telephone number, facsimile writing of the information that will be on past activities, except the certifying
number, and e-mail address; required pursuant to §§ 716.10 and official and the dates signed and
(D) Name(s) of inspection point(s) of 717.5 of the CWCR. You must submit an submitted); and
contact (I–POC) for the purchaser, amended declaration to BIS no later (c) Amended declaration.

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Supplement No. 1 to Part 715— Earths, the Transition Metals, or the elements paragraph (3) of this supplement) of
Definition of an Unscheduled Discrete aluminum, gallium, indium, thallium, tin, previously declared UDOCs;
Organic Chemical lead, bismuth or polonium), and the elements (iv) UDOCs produced by the mixing (i.e.,
carbon and oxygen. Metal carbonates have the process of combining or blending into
Unscheduled discrete organic chemical the chemical formula Md(CO3)e, where d and one mass) of previously declared UDOCs;
means any chemical: (1) Belonging to the e denote integers and M represents a metal. and
class of chemical compounds consisting of Common metal carbonates are sodium
all compounds of carbon except for its (v) UDOCs that are intermediates and that
carbonate (Na2CO3) and calcium carbonate
oxides, sulfides and metal carbonates are used in a single or multi-step process to
(CaCO3). In addition, metal carbides or other
identifiable by chemical name, by structural compounds consisting of only a metal, as produce another declared UDOC.
formula, if known, and by Chemical Abstract described in this Note, and carbon (e.g., (2) Examples of UDOCs that you must
Service registry number, if assigned; and (2) calcium carbide (CaC2)), are exempt from declare under part 715 of the CWCR include,
that is not contained in the Schedules of declaration requirements (see but are not limited to, the following, unless
Chemicals (see Supplements No. 1 to parts § 715.1(a)(2)(ii)(D) of the CWCR). they are not isolated for use or sale as a
712 through 714 of the CWCR). Unscheduled specific end product:
discrete organic chemicals subject to Supplement No. 2 to Part 715— (i) Acetophenone (CAS #98–86–2);
declaration under this part are those (ii) 6-Chloro-2-methyl aniline (CAS #87–
Examples of Unscheduled Discrete
produced by synthesis that are isolated for 63–8);
use or sale as a specific end-product. Organic Chemicals (UDOCs) and UDOC
Production (iii) 2-Amino-3-hydroxybenzoic acid (CAS
Note: Carbon oxides consist of chemical #548–93–6); and
compounds that contain only the elements (1) Examples of UDOCs not subject to (iv) Acetone (CAS #67–64–1).
carbon and oxygen and have the chemical declaration include: (3) Examples of activities that are not
formula CxOy, where x and y denote integers. (i) UDOCs produced coincidentally as by- considered ‘‘production by synthesis’’ under
The two most common carbon oxides are products that are not isolated for use or sale
part 715 of the CWCR, which means the end
carbon monoxide (CO) and carbon dioxide as a specific end product, and are routed to,
products resulting from such activities would
(CO2). Carbon sulfides consist of chemical or escape from, the waste stream of a stack,
incinerator, or waste treatment system or any not be declared under part 715, are as
compounds that contain only the elements
carbon and sulfur, and have the chemical other waste stream; follows:
formula CaSb, where a and b denote integers. (ii) UDOCs, contained in mixtures, which (i) Fermentation;
The most common carbon sulfide is carbon are produced coincidentally and not isolated (ii) Extraction;
disulfide (CS2). Metal carbonates consist of for use or sale as a specific end-product; (iii) Purification;
chemical compounds that contain a metal (iii) UDOCs produced by recycling (i.e., (iv) Distillation; and
(i.e., the Group I Alkalis, Groups II Alkaline involving one of the processes listed in (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 Activities (previous Certification, UDOC, A (as appropriate), B February 28 of the year following any cal-
calendar year)—Declared plant site. (optional). endar year in which the production of
UDOCs exceeded the applicable declara-
tion threshold in § 715.1(a)(1) of the CWCR.
No Changes Authorization Form (declaration No Changes Authorization Form ..................... February 28 of the year following any cal-
required, but no changes to data contained in endar year in which the production of
previously submitted annual declaration on UDOCs exceeded the applicable declara-
past activities (previous calendar year)—De- tion threshold in § 715.1(a)(1) of the CWCR.
clared plant site.
Amended Declaration ......................................... Certification, UDOC, A (as appropriate), B
(optional).
—Declaration information ............................ .......................................................................... —15 calendar days after change in informa-
tion.
—Company information ............................... .......................................................................... —30 calendar days after change in informa-
tion.
—Post-inspection letter ............................... .......................................................................... —45 calendar days after receipt of letter.

PART 716—INITIAL AND ROUTINE 716.9 Report of inspection-related costs. VII(B), Part VIII(B) and Part IX(B). See
INSPECTIONS OF DECLARED 716.10 Post-inspection activities. part 717 of the CWCR for provisions
FACILITIES Supplement No. 1 to Part 716—Notification, concerning challenge inspections.
Duration, and Frequency of Inspections
Sec. Supplement No. 2 to Part 716—[Reserved] (a) Overview. Each State Party to the
716.1 General information on the conduct Supplement No. 3 to Part 716—[Reserved] CWC, including the United States, has
of initial and routine inspections. Authority: 22 U.S.C. 6701 et seq.; E.O. agreed to allow certain inspections of
716.2 Purposes and types of inspections of 13128, 64 FR 36703, 3 CFR 1999 Comp., p. declared facilities by inspection teams
declared facilities. 199. employed by the Organization for the
716.3 Consent to inspections; warrants for Prohibition of Chemical Weapons
inspections. § 716.1 General information on the (OPCW) to ensure that activities are
716.4 Scope and conduct of inspections. conduct of initial and routine inspections.
consistent with obligations under the
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716.5 Notification, duration and frequency


of inspections. This part provides general Convention. BIS is responsible for
716.6 Facility agreements. information about the conduct of initial leading, hosting and escorting
716.7 Samples. and routine inspections of declared inspections of all facilities subject to the
716.8 On-site monitoring of Schedule 1 facilities subject to inspection under provisions of the CWCR (see § 710.2 of
facilities. CWC Verification Annex Part VI(E), Part the CWCR).

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(b) Declared facilities subject to initial inspection if the declared plants on your (i) The facility is not used to produce
and routine inspections—(1) Schedule 1 plant site produced during the previous any Schedule 1 chemical, except for the
facilities. (i) Your declared facility is calendar year, or you anticipate they declared Schedule 1 chemicals;
subject to inspection if it produced in will produce in the next calendar year, (ii) The quantities of Schedule 1
excess of 100 grams aggregate of in excess of 200 metric tons aggregate of chemicals produced, processed or
Schedule 1 chemicals in the previous any Schedule 3 chemical. consumed are correctly declared and
calendar year or anticipates producing consistent with needs for the declared
Note to § 716.1(b)(3): The methodology for
in excess of 100 grams aggregate of determining a declarable and inspectable purpose; and
Schedule 1 chemicals during the next plant site is different. A Schedule 3 plant site (iii) The Schedule 1 chemical is not
calendar year. that submits a declaration is subject to diverted or used for purposes other than
(ii) If you are a new Schedule 1 inspection only if the aggregate production of those declared.
production facility pursuant to § 712.4 a Schedule 3 chemical at all declared plants (2) Types of inspections—(i) Initial
of the CWCR, your facility is subject to on the plant site exceeds 200 metric tons. inspections. (A) During initial
an initial inspection within 200 days of inspections of declared Schedule 1
submitting an initial declaration. (4) Unscheduled discrete organic
facilities, in addition to the verification
chemical plant sites. Your declared
Note to § 716.1(b)(1): All Schedule 1
activities listed in paragraph (a)(1) of
plant site is subject to inspection if it
facilities submitting a declaration are subject this section, the Host Team and the
produced by synthesis more than 200
to inspection. Inspection Team will draft site-specific
metric tons aggregate of unscheduled
facility agreements (see § 716.6 of the
(2) Schedule 2 plant sites—(i) discrete organic chemicals (UDOC)
CWCR) for the conduct of routine
Inspection thresholds for Schedule 2 during the previous calendar year.
inspections.
plant sites. Your declared plant site is Note 1 to § 716.1(b)(4): You must include (B) For new Schedule 1 production
subject to inspection if at least one plant amounts of unscheduled discrete organic facilities declared pursuant to § 712.4 of
on your plant site produced, processed chemicals containing phosphorus, sulfur or the CWCR, the U.S. National Authority,
or consumed, in any of the three fluorine in the calculation of your plant site’s in coordination with BIS, will conclude
previous calendar years, or you aggregate production of unscheduled discrete a facility agreement with the OPCW
anticipate that at least one plant on your organic chemicals.
before the facility begins producing
plant site will produce, process or above 100 grams aggregate of Schedule
Note 2 to § 716.1(b)(4): All UDOC plant
consume in the next calendar year, any sites that submit a declaration based on 1 chemicals.
Schedule 2 chemical in excess of the § 715.1(a)(1)(i) of the CWCR are subject to a (ii) Routine inspections. During
following: routine inspection. routine inspections of declared
(A) 10 kg of chemical BZ: 3- Schedule 1 facilities, the verification
Quinuclidinyl benzilate (see Schedule (c) Responsibilities of the Department activities listed in paragraph (a)(1) of
2, Part A, paragraph 3 in Supplement of Commerce. As the host and escort for this section will be carried out pursuant
No. 1 to part 713 of the CWCR); the international Inspection Team for all to site-specific facility agreements (see
(B) 1 metric ton of chemical PFIB: inspections of facilities subject to the § 716.6 of the CWCR) developed during
1,1,3,3,3-Pentafluoro-2(trifluoromethyl)- provisions of the CWCR under this part, the initial inspections and concluded
1-propene or any chemical belonging to BIS will: between the U.S. Government and the
the Amiton family (see Schedule 2, Part (1) Lead on-site inspections; OPCW pursuant to the Convention.
A, paragraphs 1 and 2 in Supplement (2) Provide Host Team notification to (b) Schedule 2 plant sites—(1)
No. 1 to part 713 of the CWCR); or the facility of an impending inspection; Purposes of inspections. (i) The general
(C) 10 metric tons of any chemical (3) Take appropriate action to obtain aim of inspections of declared Schedule
listed in Schedule 2, Part B (see an administrative warrant in the event 2 plant sites is to verify that activities
Supplement No. 1 to part 713 of the the facility does not consent to the are in accordance with obligations
CWCR). inspection; under the Convention and consistent
(ii) Initial inspection for new (4) Dispatch an advance team to the with the information provided in
Schedule 2 plant sites. Your declared vicinity of the site to provide declarations. Particular aims of
plant site is subject to an initial administrative and logistical support for inspections of declared Schedule 2
inspection within the first year after the impending inspection and, upon plant sites are to verify:
submitting a declaration, if at least one request, to assist the facility with (A) The absence of any Schedule 1
plant on your plant site produced, inspection preparation; chemical, especially its production,
processed or consumed in any of the (5) Escort the Inspection Team on-site except in accordance with the
three previous years, or you anticipate throughout the inspection process; provisions of the Convention;
that at least one plant on your plant site (B) Consistency with declarations of
(6) Assist the Inspection Team with
will produce, process or consume in the production, processing or consumption
verification activities;
next calendar year, any Schedule 2 of Schedule 2 chemicals; and
chemical in excess of the threshold (7) Negotiate the development of a
site-specific facility agreement, if (C) Non-diversion of Schedule 2
quantities set forth in paragraphs
appropriate (see § 716.6); and chemicals for activities prohibited
(b)(2)(i)(A) through (C) of this section.
(8) Ensure that an inspection adheres under the Convention.
Note to § 716.1(b)(2): The applicable to the Convention, the Act and any (ii) During initial inspections,
inspection threshold for Schedule 2 plant warrant issued thereunder, and a site- Inspection Teams shall collect
sites is ten times higher than the applicable specific facility agreement, if concluded. information to determine the frequency
declaration threshold. Only declared plant and intensity of subsequent inspections
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sites, comprising at least one declared plant § 716.2 Purposes and types of inspections by assessing the risk to the object and
that exceeds the applicable inspection of declared facilities.
threshold, are subject to inspection.
purpose of the Convention posed by the
(a) Schedule 1 facilities—(1) Purposes relevant chemicals, the characteristics of
(3) Schedule 3 plant sites. Your of inspections. The aim of inspections of the plant site and the nature of the
declared plant site is subject to Schedule 1 facilities is to verify that: activities carried out there. The

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Inspection Team will take the following (d) Unscheduled discrete organic medical sections, and waste and effluent
criteria into account, inter alia: chemical plant sites—(1) Purposes of handling areas, as necessary to
(A) The toxicity of the scheduled inspections. The general aim of accomplish their inspection;
chemicals and of the end-products inspections of declared UDOC plant (iii) May visually inspect other parts
produced with them, if any; sites is to verify that activities are or areas of the plant site to clarify an
(B) The quantity of the scheduled consistent with the information ambiguity that has arisen during the
chemicals typically stored at the provided in declarations. The particular inspection;
inspected site; aim of inspections is to verify the (iv) May take photographs or conduct
(C) The quantity of feedstock absence of any Schedule 1 chemical, formal interviews of facility personnel;
chemicals for the scheduled chemicals especially its production, except in (v) May examine relevant records; and
accordance with the Convention. (vi) May take samples as provided by
typically stored at the inspected site;
(2) Routine inspections. During the Convention, the Act and consistent
(D) The production capacity of the
routine inspections of declared UDOC with the requirements set forth by the
Schedule 2 plants; and
plant sites, in addition to the Director of the United States National
(E) The capability and convertibility
verification activities listed in paragraph Authority, at 22 CFR part 103, and the
for initiating production, storage and
(d)(1) of this section, the Host Team and facility agreement, if applicable.
filling of toxic chemicals at the (2) Scope of consent. When an owner,
inspected site. the Inspection Team may develop draft
operator, occupant, or agent in charge of
(2) Types of inspections—(i) Initial site-specific facility agreements for the
a facility consents to an initial or
inspections. During initial inspections conduct of subsequent routine
routine inspection, he or she is
of declared Schedule 2 plant sites, in inspections (see § 716.6 of the CWCR).
consenting to provide access to the
addition to the verification activities Although the Convention does not
Inspection Team and Host Team to any
listed in paragraph (b)(1) of this section, require facility agreements for declared
area of the facility, any item located on
the Host Team and the Inspection Team UDOC plant sites, the owner, operator,
the facility, interviews with facility
will generally draft site-specific facility occupant or agent in charge of a plant
personnel, and any records necessary
agreements for the conduct of routine site may request one. The Host Team
for the Inspection Team to complete its
inspections (see § 716.6 of the CWCR). will not seek a facility agreement if the mission pursuant to paragraph (a) of this
(ii) Routine inspections. During owner, operator, occupant or agent in section, except for information subject
routine inspections of declared charge of the plant site does not request to export control under ITAR (22 CFR
Schedule 2 plant sites, the verification one. Subsequent routine inspections parts 120 through 130) (see paragraph
activities listed in paragraph (b)(1) of will be carried out pursuant to site- (b)(3) of this section). When consent is
this section will be carried out pursuant specific facility agreements, if granted for an inspection, the owner,
to any appropriate site-specific facility applicable. operator, occupant, or agent in charge
agreements developed during the initial § 716.3 Consent to inspections; warrants agrees to provide the same degree of
inspections (see § 716.6 of the CWCR), for inspections. access provided for under section 305 of
and concluded between the U.S. (a) The owner, operator, occupant or the Act. The determination of whether
Government and the OPCW pursuant to agent in charge of a facility may consent the Inspection Team’s request to inspect
the Convention and the Act. to an initial or routine inspection. The any area, building, item or record is
(c) Schedule 3 plant sites—(1) individual giving consent on behalf of reasonable is the responsibility of the
Purposes of inspections. The general the facility represents that he or she has Host Team Leader.
aim of inspections of declared Schedule the authority to make this decision for (3) ITAR-controlled technology. ITAR-
3 plant sites is to verify that activities the facility. controlled technology shall not be
are consistent with the information (b) In instances where consent is not divulged to the Inspection Team
provided in declarations. The particular provided by the owner, operator, without U.S. Government authorization
aim of inspections is to verify the occupant or agent in charge for an initial (such technology includes, but is not
absence of any Schedule 1 chemical, or routine inspection, BIS will seek limited to technical data related to
especially its production, except in administrative warrants as provided by Schedule 1 chemicals or Schedule 2
accordance with the Convention. the Act. chemicals identified in Note 2 to
(2) Routine inspections. During Supplement No. 1 to Part 712 or Note
routine inspections of declared § 716.4 Scope and conduct of inspections. 1 to Supplement No. 1 to Part 713,
Schedule 3 plant sites, in addition to the (a) General. Each inspection shall be respectively, of the CWCR; also see 22
verification activities listed in paragraph limited to the purposes described in CFR Section 121.1, i.e., the United
(c)(1) of this section, the Host Team and § 716.2 of the CWCR and shall be States Munitions List). Facilities being
the Inspection Team may draft site- conducted in the least intrusive manner, inspected are responsible for the
specific facility agreements for the consistent with the effective and timely identification of ITAR-controlled
conduct of subsequent routine accomplishment of its purpose as technology to the BIS Host Team, if
inspections (see § 716.6 of the CWCR). provided in the Convention. known.
Although the Convention does not (b) Scope.—(1) Description of (c) Pre-inspection briefing. Upon
require facility agreements for declared inspections. During inspections, the arrival of the Inspection Team and Host
Schedule 3 plant sites, the owner, Inspection Team: Team at the inspection site and before
operator, occupant or agent in charge of (i) Will receive a pre-inspection commencement of the inspection,
a plant site may request one. The Host briefing from facility representatives; facility representatives will provide the
Team will not seek a facility agreement (ii) Will visually inspect the facilities Inspection Team and Host Team with a
if the owner, operator, occupant or agent or plants producing scheduled pre-inspection briefing on the facility,
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in charge of the plant site does not chemicals or UDOCs, which may the activities carried out there, safety
request one. Subsequent routine include storage areas, feed lines, measures, and administrative and
inspections will be carried out pursuant reaction vessels and ancillary logistical arrangements necessary for the
to site-specific facility agreements, if equipment, control equipment, inspection, which may be aided with
applicable. associated laboratories, first aid or the use of maps and other

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documentation as deemed appropriate transferred to the current owner of the completed not later than 24 hours after
by the facility. The time spent for the facility by the previous owner (e.g., as the completion of the inspection.
briefing will be limited to the minimum part of the contract involving the sale of
necessary and may not exceed three the facility), the previous owner must § 716.5 Notification, duration and
frequency of inspections.
hours. make such records available to the Host
(1) The pre-inspection briefing will Team for provision to the Inspection (a) Inspection notification.—(1)(i)
address: Team in accordance with section 305 of Content of notice. Inspections of
(i) Facility health and safety issues the Act. However, the current owner of facilities may be made only upon
and requirements, and associated alarm a facility, upon receiving notification of issuance of written notice by the United
systems; an inspection (see § 716.5 of the CWCR), States National Authority (USNA) to the
(ii) Declared facility activities, is responsible for informing BIS if the owner and to the operator, occupant or
business and manufacturing operations; previous owner did not transfer records agent in charge of the premises to be
(iii) Physical layout; for activities that took place under the inspected. BIS will also provide a
(iv) Delimitation of declared facility; previous ownership—this will allow separate inspection notification to the
(v) Scheduled chemicals on the BIS to contact the previous owner of the inspection point of contact identified in
facility (declared and undeclared); facility, to arrange for access to such declarations submitted by the facility. If
(vi) Block flow diagram or simplified records, if BIS deems them relevant to the United States is unable to provide
process flow diagram; the inspection activities. actual written notice to the owner and
(vii) Plants and units specific to (f) Effect of facility agreements. to the operator, occupant or agent in
declared operations; Routine inspections at facilities for charge, BIS (or the Federal Bureau of
(viii) Administrative and logistic which the United States has concluded Investigation, if BIS is unable) may post
information; and a facility agreement with the OPCW will notice prominently at the facility to be
(ix) Data declaration updates/ be conducted in accordance with the inspected. The notice shall include all
revisions. facility agreement. The existence of a appropriate information provided by the
(2) The pre-inspection briefing may facility agreement does not in any way OPCW to the USNA concerning:
also address, inter alia: limit the right of the owner, operator, (A) The type of inspection;
(i) Introduction of key facility occupant, or agent in charge of the (B) The basis for the selection of the
personnel; facility to withhold consent to an facility or location for the type of
(ii) Management, organization and inspection request. inspection sought;
history; (g) Hours of inspections. Consistent (C) The time and date that the
(iii) Confidential business information with the provisions of the Convention, inspection will begin and the period
concerns; the Host Team will ensure, to the extent covered by the inspection; and
(iv) Types and location of records/ possible, that each inspection is (D) The names and titles of the
documents; commenced, conducted, and concluded Inspection Team members.
(v) Draft facility agreement, if during ordinary working hours, but no (ii) Consent to inspection. In addition
applicable; and inspection shall be prohibited or to appropriate information provided by
(vi) Proposed inspection plan. otherwise disrupted from commencing, the OPCW in its notification to the
(d) Visual plant inspection. The continuing or concluding during other USNA, BIS’s inspection notification will
Inspection Team may visually inspect hours. request that the facility indicate whether
the declared plant or facility and other (h) Health and safety regulations and it will consent to an inspection, and will
areas or parts of the plant site as agreed requirements. In carrying out their state whether an advance team is
by the Host Team Leader after activities, the Inspection Team and Host available to assist the site in preparation
consulting with the facility Team shall observe federal, state, and for the inspection. If an advance team is
representative. local health and safety regulations and available, facilities that request advance
(e) Records review. The facility must health and safety requirements team assistance are not required to
provide the Inspection Team with established at the inspection site, reimburse the U.S. Government for costs
access to all supporting materials and including those for the protection of associated with these activities. If a
documentation used by the facility to controlled environments within a facility does not agree to provide
prepare declarations and to comply with facility and for personal safety. Such consent to an inspection within four
the CWCR (see §§ 721.1 and 721.2 of the health and safety regulations and hours of receipt of the inspection
CWCR) and with appropriate requirements will be set forth in, but notification, BIS will seek an
accommodations in which the will not necessarily be limited to, the administrative warrant. The current
Inspection Team can review these facility agreement, if applicable. owner of a facility, upon receiving
supporting materials and (i) Preliminary findings. Upon notification of an inspection, is also
documentation. Such access will be completion of an inspection, the responsible for informing BIS if the
provided in appropriate formats (e.g., Inspection Team will meet with the previous owner did not transfer (to the
paper copies, electronic remote access Host Team and facility personnel to current owner) records for activities that
by computer, microfilm, or microfiche) review the written preliminary findings took place under the previous
through the U.S. Government Host of the Inspection Team and to clarify ownership (see § 716.4(e) of the
Team to Inspection Teams during the ambiguities. The Host Team will discuss CWCR)—this will allow BIS to contact
inspection period or as otherwise agreed the preliminary findings with the the previous owner of the facility, to
upon by the Inspection Team and Host facility, and the Host Team Leader will arrange for access to such records, if BIS
Team Leader. If a facility does not have take into consideration the facility’s deems them relevant to the inspection
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access to records for activities that took input when providing official comments activities.
place under previous ownership, on the preliminary findings to the (iii) The following table sets forth the
because such records were not Inspection Team. This meeting will be notification procedures for inspection:

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TABLE TO § 716.5(A)(1)
Activity Agency action Facility action

(A) OPCW notification inspection ....................... (1) U.S. National Authority transmits actual Acknowledges receipt of facsimile.
written notice and inspection authorization
to the owner and operator, occupant, or
agent in charge via facsimile within 6 hours.
(2) Upon notification from the U.S. National (A) Indicated whether it grants consent.
Authority, BIS immediately transmits inspec- (B) May request advance team support. No
tion notification via facsimile to the inspec- requirement for reimbursement of U.S. Gov-
tion point of contract to ascertain whether ernment’s services.
the facility (i) grants consent and (ii) re-
quests assistance in preparing for the in-
spection. In absence of consent within four
hours of facility receipt, BIS intends to seek
an administrative warrant.
(B) Preparation for inspection ............................ (1) BIS advance team generally arrives in the If advance team support is provided, facility
vicinity of the facility to be inspected 1–2 works with the advance team on inspection-
days after OPCW notification for logistical related issues.
and administrative preparations.
(2) If records for activities that took place The current owner of the facility must inform
under the previous ownership of the facility BIS if the previous owner of the facility did
are deemed relevant to the inspection, BIS not transfer (to the current owner) records
will contact the previous owner of the facil- for activities that took place under the pre-
ity to arrange for access to any such vious ownership.
records required under the CWCR that
have not been transferred to the current
owner.

(2) Timing of notice.—(i) Schedule 1 will notify the USNA of a routine (2) Schedule 2 plant sites. For
facilities. For declared Schedule 1 inspection not less than 120 hours prior declared Schedule 2 plant sites, the
facilities, the Technical Secretariat will to arrival of the Inspection Team at the maximum duration of initial and
notify the USNA of an initial inspection plant site to be inspected. The USNA routine inspections shall be 96 hours,
not less than 72 hours prior to arrival of will provide written notice to the owner unless extended by agreement between
the Inspection Team in the United and to the operator, occupant or agent the Inspection Team and the Host Team
States, and will notify the USNA of a in charge of the premises within six Leader. The Host Team Leader will
routine inspection not less than 24 hours of receiving notification from the consult with the inspected plant site on
hours prior to arrival of the Inspection OPCW Technical Secretariat or as soon any request for extension of an
Team in the United States. The USNA as possible thereafter. BIS will provide inspection prior to making an agreement
will provide written notice to the owner Host Team notice to the inspection with the Inspection Team. Activities
and to the operator, occupant or agent point of contact of the plant site as soon involving the pre-inspection briefing
in charge of the premises within six as possible after the OPCW notifies the and preliminary findings are in addition
hours of receiving notification from the USNA of the inspection. to inspection activities. See § 716.4(c)
OPCW Technical Secretariat or as soon and (i) of the CWCR for a description of
as possible thereafter. BIS will provide (b) Period of inspections.—(1) these activities.
Host Team notice to the inspection Schedule 1 facilities. For a declared (3) Schedule 3 and UDOC plant sites.
point of contact of the facility as soon Schedule 1 facility, the Convention does For declared Schedule 3 or UDOC plant
as possible after the OPCW notifies the not specify a maximum duration for an sites, the maximum duration of routine
USNA of the inspection. initial inspection. The estimated period inspections shall be 24 hours, unless
(ii) Schedule 2 plant sites. For of routine inspections will be as stated extended by agreement between the
declared Schedule 2 plant sites, the in the facility agreement, unless Inspection Team and the Host Team
Technical Secretariat will notify the extended by agreement between the Leader. The Host Team Leader will
USNA of an initial or routine inspection Inspection Team and the Host Team consult with the inspected plant site on
not less than 48 hours prior to arrival of Leader, and will be based on the risk to any request for extension of an
the Inspection Team at the plant site to the object and purpose of the inspection prior to making an agreement
be inspected. The USNA will provide Convention posed by the quantities of with the Inspection Team. Activities
written notice to the owner and to the chemicals produced, the characteristics involving the pre-inspection briefing
operator, occupant or agent in charge of of the facility and the nature of the and preliminary findings are in addition
the premises within six hours of activities carried out there. The Host to inspection activities. See § 716.4(c)
receiving notification from the OPCW Team Leader will consult with the and (i) of the CWCR for a description of
Technical Secretariat or as soon as inspected facility on any request for these activities.
possible thereafter. BIS will provide extension of an inspection prior to (c) Frequency of inspections. The
Host Team notice to the inspection making an agreement with the frequency of inspections is as follows:
point of contact at the plant site as soon Inspection Team. Activities involving (1) Schedule 1 facilities. As provided
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as possible after the OPCW notifies the the pre-inspection briefing and by the Convention, the frequency of
USNA of the inspection. preliminary findings are in addition to inspections at declared Schedule 1
(iii) Schedule 3 and UDOC plant sites. inspection activities. See § 716.4(c) and facilities is determined by the OPCW
For declared Schedule 3 and UDOC (i) of the CWCR for a description of based on the risk to the object and
plant sites, the Technical Secretariat these activities. purpose of the Convention posed by the

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quantities of chemicals produced, the (3) Schedule 3 and UDOC plant sites. Convention and the Act and consistent
characteristics of the facility and the If the owner, operator, occupant or agent with requirements set forth by the
nature of the activities carried out at the in charge of a declared Schedule 3 or Director of the United States National
facility. The frequency of inspections UDOC plant site requests a facility Authority in 22 CFR part 103. Analysis
will be stated in the facility agreement. agreement, the USNA will ensure that a will be restricted to verifying the
(2) Schedule 2 plant sites. As facility agreement for such a plant site absence of undeclared scheduled
provided by the Convention and the is concluded with the OPCW. chemicals, unless otherwise agreed after
Act, the maximum number of (b) Notification; negotiation of draft consultation with the facility
inspections at declared Schedule 2 plant and final facility agreements; and representative.
sites is two per calendar year per plant conclusion of facility agreements. Prior
site. The OPCW will determine the to the development of a facility § 716.8 On-site monitoring of Schedule 1
frequency of routine inspections for agreement, BIS shall notify the owner, facilities.
each declared Schedule 2 plant site operator, occupant, or agent in charge of
based on the Inspection Team’s Declared Schedule 1 facilities are
the facility, and if the owner, operator, subject to verification by monitoring
assessment of the risk to the object and occupant or agent in charge so requests,
purpose of the Convention posed by the with on-site instruments as provided by
the notified person may participate in
relevant chemicals, the characteristics of the Convention. For facilities subject to
preparations with BIS representatives
the plant site, and the nature of the the CWCR, however, such monitoring is
for the negotiation of such an
activities carried out there. The not anticipated. The U.S. Government
agreement. During the initial or routine
frequency of inspections will be stated will ensure that any monitoring that
inspection of a declared facility, the
in the facility agreement, if applicable. may be requested by the OPCW is
Inspection Team and the Host Team
(3) Schedule 3 plant sites. As carried out pursuant to the Convention
will negotiate a draft facility agreement
provided by the Convention, no or amendment to a facility agreement. and U.S. law.
declared Schedule 3 plant site may To the maximum extent practicable
receive more than two inspections per § 716.9 Report of inspection-related costs.
consistent with the Convention, the
calendar year and the combined number owner and the operator, occupant or Pursuant to section 309(b)(5) of the
of inspections of Schedule 3 and UDOC agent in charge of the facility may Act, any facility that has undergone any
plant sites in the United States may not observe facility agreement negotiations inspections pursuant to the CWCR
exceed 20 per calendar year. between the U.S. Government and during a given calendar year must report
(4) UDOC plant sites. As provided by to BIS within 90 days of an inspection
OPCW. As a general rule, BIS will
the Convention, no declared UDOC on its total costs related to that
consult with the affected facility on the
plant site may receive more than two inspection. Although not required, such
contents of the agreements and take the
inspections per calendar year and the reports should identify categories of
facility’s views into consideration
combined number of inspections of costs separately if possible, such as
during negotiations. BIS will participate
Schedule 3 and UDOC plant sites in the
in the negotiation of, and approve, all personnel costs (production-line,
United States may not exceed 20 per
final facility agreements with the administrative, legal), costs of
calendar year.
OPCW. Facilities will be notified of and producing records, and costs associated
§ 716.6 Facility agreements. have the right to observe final facility with shutting down chemical
(a) Description and requirements. A agreement negotiations between the production or processing during
facility agreement is a site-specific United States and the OPCW to the inspections, if applicable. This
agreement between the U.S. maximum extent practicable, consistent information should be reported to BIS
Government and the OPCW. Its purpose with the Convention. Prior to the on company letterhead at the address
is to define procedures for inspections conclusion of a final facility agreement, given in § 716.6(d) of the CWCR, with
of a specific declared facility that is the affected facility will have an the following notation: ‘‘Attn: Report of
subject to inspection because of the type opportunity to comment on the facility inspection-related costs.’’
or amount of chemicals it produces, agreement. BIS will give consideration
processes or consumes. to such comments prior to approving § 716.10 Post-inspection activities.
(1) Schedule 1 facilities. The final facility agreements with the BIS will forward a copy of the final
Convention requires that facility OPCW. The USNA shall ensure that inspection report to the inspected
agreements be concluded between the facility agreements for Schedule 1, facility for their review upon receipt
United States and the OPCW for all Schedule 2, Schedule 3 and UDOC from the OPCW. Facilities may submit
declared Schedule 1 facilities. For new facilities are concluded, as appropriate, comments on the final inspection report
Schedule 1 production facilities with the OPCW in coordination with
to BIS, within the time-frame specified
declared pursuant to § 712.4 of the BIS.
by BIS (i.e., at least 7 working days from
CWCR, the USNA, in coordination with (c) [Reserved]
the Department of Commerce, will receipt of the report), and BIS will
(d) Further information. For further
conclude a facility agreement with the information about facility agreements, consider them, to the extent possible,
OPCW before the facility begins please write or call: Treaty Compliance when commenting on the final report.
producing above 100 grams aggregate of Division, Bureau of Industry and BIS will also send facilities a post-
Schedule 1 chemicals. Security, U.S. Department of Commerce, inspection letter detailing the issues that
(2) Schedule 2 plant sites. The USNA 1555 Wilson Boulevard, Suite 700, require follow-up action, e.g., amended
will ensure that such facility agreements Arlington, VA 22209, Telephone: (703) declaration requirement (see
are concluded with the OPCW unless 605–4400. §§ 712.7(d), 713.5(d), 714.4(d), and
715.2(c) of the CWCR), information on
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the owner, operator, occupant or agent


in charge of the plant site and the § 716.7 Samples. the status of the draft facility agreement,
OPCW Technical Secretariat agree that The owner, operator, occupant or if applicable, and the date on which the
such a facility agreement is not agent in charge of a facility must report on inspection-related costs (see
necessary. provide a sample as provided for in the § 716.9 of the CWCR) is due to BIS.

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SUPPLEMENT NO. 1 TO PART 716.—NOTIFICATION, DURATION AND FREQUENCY OF INSPECTIONS


Unscheduled discrete or-
Schedule 1 Schedule 2 Schedule 3 ganic chemicals

Notice of initial or routine 72 hours prior to arrival of 48 hours prior to arrival of 120 hours prior to arrival 120 hours prior to arrival
inspection to USNA. Inspection Team at the Inspection Team at the of Inspection Team at of Inspection Team at
point of entry (initial); 24 plant site. the plant site. the plant site.
hours prior to arrival of
Inspection Team at the
point of entry (routine).
Duration of inspection ....... As specified in facility 96 hours ............................ 24 hours ............................ 24 hours.
agreement.
Maximum number of in- Determined by OPCW 2 per calendar year per 2 per calendar year per 2 per calendar year per
spections. based on characteristics plant site. plant site. plant site.
of facility and the nature
of the activities carried
out at the facility.

Notification of challenge in- 12 hours prior to arrival of inspection team at the point of entry.
spection to USNA*.
Duration of Challenge 84 hours.
inspection*.
* See part 717 of the CWCR.

Supplement Nos. 2–3 to Part 716 CWCR (parts 710 through 729 of this a facility does not consent to a challenge
[Reserved] subchapter) that receives an official inspection, BIS will assist the
written request from BIS for clarification Department of Justice in seeking a
PART 717—CWC CLARIFICATION must, within five working days from criminal warrant as provided by the Act.
PROCEDURES (CONSULTATIONS receipt of such request, provide BIS The existence of a facility agreement
AND CHALLENGE INSPECTIONS) with any relevant information required does not in any way limit the right of
Sec.
to respond to the OPCW or the State the operator of the facility to withhold
717.1 Clarification procedures; challenge Party(ies) who requested clarification consent to a challenge inspection
inspection requests pursuant to Article under Article IX. BIS will contact the request.
IX of the Convention. person or facility subject to the Article (b) Notice of challenge inspection.
717.2 Challenge inspections. IX clarification, as early as practicable, Challenge inspections may be made
717.3 Samples. prior to issuing an official written only upon issuance of written notice by
717.4 Report of inspection-related costs. request for clarification to the person or the United States National Authority
717.5 Post-inspection activities. facility. (USNA) to the owner and to the
Authority: 22 U.S.C. 6701 et seq., 2681; operator, occupant or agent in charge of
§ 717.2 Challenge inspections.
E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., the premises. BIS will provide notice of
p. 199. Persons or facilities, other than U.S.
inspection to the inspection point of
Government facilities as defined in
§ 717.1 Clarification procedures; challenge contact at such time that a person or
§ 710.2(a) of the CWCR, may be subject
inspection requests pursuant to Article IX facility has been clearly established, if
to a challenge inspection by the OPCW
of the Convention. possible, and when notification is
concerning possible non-compliance
(a) Article IX of the Convention sets with the requirements of the deemed appropriate. If the United States
forth procedures for clarification, Convention, irrespective of whether or is unable to provide actual written
between States Parties, of issues about not they are required to submit notice to the owner and to the operator,
compliance with the Convention. States declarations or reports under the CWCR. occupant or agent in charge, BIS (or
Parties may attempt to resolve such BIS will host and escort the another appropriate agency, if BIS is
issues through consultation between international Inspection Team for unable) may post notice prominently at
themselves or through the Organization challenge inspections in the United the plant, plant site or other facility or
for the Prohibition of Chemical States of such persons or facilities. location to be inspected.
Weapons (OPCW). A State Party may (a) Consent to challenge inspections; (1) Timing. The OPCW will notify the
also request the OPCW to conduct an warrants for challenge inspections. (1) USNA of a challenge inspection not less
on-site challenge inspection of any The owner, operator, occupant or agent than 12 hours before the planned arrival
facility or location in the territory or in in charge of a facility may consent to a of the Inspection Team at the U.S. point
any other place under the jurisdiction or challenge inspection. The individual of entry. Written notice will be provided
control of any other State Party. Such an giving consent on behalf of the facility to the owner and to the operator,
on-site challenge inspection request represents that he or she has the occupant, or agent in charge of the
shall be for the sole purpose of authority to make this decision for the premises at any appropriate time
clarifying and resolving any questions facility. The facility must respond to the determined by the USNA after receipt of
concerning possible non-compliance notice of inspection, which includes notification from the OPCW Technical
with the Convention. within it a request for consent to the Secretariat.
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(b) In the event that BIS receives a inspection, within four hours of the (2)(i) Content of notice. The notice of
request for clarification, pursuant to facility’s receipt of the notice of inspection shall include all appropriate
Article IX of the Convention, concerning inspection from BIS. information provided by the OPCW to
possible non-compliance with the CWC, (2) In instances where the owner, the United States National Authority
any person or facility subject to the operator, occupant or agent in charge of concerning:

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(A) The type of inspection; activities, the Inspection Team and Host § 717.5 Post-inspection activities.
(B) The basis for the selection of the Team shall observe federal, state, and BIS will forward a copy of the final
facility or locations for the type of local health and safety regulations and inspection report to the inspected
inspection sought; health and safety requirements facility for their review upon receipt
(C) The time and date that the established at the inspection site, from the OPCW. Facilities may submit
inspection will begin and the period including those for the protection of comments on the final inspection report
covered by the inspection; controlled environments within a to BIS, and BIS will consider them, to
(D) The names and titles of the facility and for personal safety. the extent possible, when commenting
Inspection Team members; and on the final report. BIS will also send
(E) All appropriate evidence or (5) Pre-inspection briefing. Upon
facilities a post-inspection letter
reasons provided by the requesting State arrival of the Inspection Team and the
detailing the issues that require follow-
Party for seeking the inspection. Host Team in the vicinity of the up action and the date on which the
(ii) In addition to appropriate inspection site and before report on inspection-related costs (see
information provided by the OPCW in commencement of the inspection, § 717.4 of the CWCR) is due to BIS.
its notification to the USNA, the notice facility representatives will provide the
of inspection that BIS delivers to the Inspection Team and the Host Team PART 718—CONFIDENTIAL BUSINESS
facility will request the facility to with a pre-inspection briefing INFORMATION
indicate whether it will consent to an concerning the facility, the activities
inspection and will state whether an carried out there, safety measures, and Sec.
advance team is available to assist the 718.1 Definition.
administrative and logistical 718.2 Identification of confidential business
site in preparation for the inspection. If arrangements necessary for the information.
an advance team is available, facilities inspection, which may be aided with 718.3 Disclosure of confidential business
that request advance team assistance are the use of maps and other information.
not required to reimburse the U.S. documentation as deemed appropriate Supplement No. 1 to Part 718—Confidential
Government for costs associated with by the facility. The time spent for the Business Information Declared or
these activities. If a facility does not briefing may not exceed three hours. Reported
agree to provide consent to an Authority: 22 U.S.C. 6701 et seq.; E.O.
inspection within four hours of receipt § 717.3 Samples. 13128, 64 FR 36703, 3 CFR 1999 Comp., p.
of the inspection notification, BIS will 199.
assist the Department of Justice in If requested by the Inspection Team,
seeking a criminal warrant. the owner, operator, occupant or agent § 718.1 Definition.
(c) Period of inspection. Challenge in charge of a facility must provide a The Chemical Weapons Convention
inspections will not exceed 84 hours, sample, as provided for in the Implementation Act of 1998 (‘‘the Act’’)
unless extended by agreement between Convention and the Act and consistent defines confidential business
the Inspection Team and the Host Team with requirements set forth by the information as information included in
Leader. Director of the United States National categories specifically identified in
(d) Scope and conduct of Authority in 22 CFR part 103. This may sections 103(g)(1) and 304(e)(2) of the
inspections—(1) General. Each be done by providing a sample, taken in Act and other trade secrets as follows:
inspection shall be limited to the the presence of the Inspection Team, to (a) Financial data;
purposes described in this section and the U.S. Host Team leader, who will (b) Sales and marketing data (other
conducted in the least intrusive manner, then release it to the Inspection Team than shipment data);
consistent with the effective and timely for analysis. Analysis of the sample may (c) Pricing data;
accomplishment of its purpose as be restricted to verifying the presence or (d) Personnel data;
provided in the Convention. (e) Research data;
absence of Schedule 1, 2, or 3
(2) Scope of inspections. If an owner, (f) Patent data;
chemicals, or appropriate degradation (g) Data maintained for compliance
operator, occupant, or agent in charge of products, unless agreed otherwise.
a facility consents to a challenge with environmental or occupational
inspection, the inspection will be § 717.4 Report of inspection-related costs. health and safety regulations;
(h) Data on personnel and vehicles
conducted under the authority of the
Pursuant to section 309(b)(5) of the entering and personnel and personal
Act and in accordance with the
Act, any facility that has undergone any passenger vehicles exiting the site;
provisions of Article IX and applicable
inspections pursuant to the CWCR (i) Any chemical structure;
provisions of the Verification Annex of (j) Any plant design, process,
during a given calendar year must report
the Convention. If consent is not technology or operating method;
to BIS within 90 days of an inspection
granted, the inspection will be (k) Any operating requirement, input,
conducted pursuant to the terms of a on its total costs related to that
inspection. Although not required, such or result that identifies any type or
criminal warrant issued under the quantity of chemicals used, processed or
authority of the Act. reports should identify categories of
costs separately if possible, such as produced;
(3) Hours of inspections. Consistent (l) Any commercial sale, shipment or
with the provisions of the Convention, personnel costs (production-line,
administrative, legal), costs of use of a chemical; or
the Host Team will ensure, to the extent (m) Information that qualifies as a
possible, that each inspection is producing records, and costs associated
trade secret under 5 U.S.C. 552(b)(4)
commenced, conducted, and concluded with shutting down chemical
(Freedom of Information Act), provided
during ordinary working hours, but no production or processing during
such trade secret is obtained from a U.S.
inspection shall be prohibited or inspections, if applicable. This
person or through the U.S. Government.
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otherwise disrupted from commencing, information should be reported to BIS


continuing or concluding during other on company letterhead at the address 718.2 Identification of confidential
hours. given in § 716.6(d) of the CWCR, with business information.
(4) Health and safety regulations and the following notation: ‘‘AATTN: Report (a) General. Certain confidential
requirements. In carrying out their of Inspection-related Costs.’’ business information submitted to BIS

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24962 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

in declarations and reports does not with the provisions of the Convention Weapons (OPCW). (i) As provided by
need to be specifically identified and (see § 718.3(c)(1)(ii) of the CWCR). Section 404(b)(1) of the Act, the U.S.
marked by the submitter, as described in Confidential business information not Government will disclose or otherwise
paragraph (b) of this section. Other related to the purpose of an inspection provide confidential business
confidential business information or not necessary for the accomplishment information to the Technical Secretariat
submitted to BIS in declarations and of an inspection, as determined by the of the OPCW or to other States Parties
reports and confidential business Host Team, may be removed from sight, to the Convention, in accordance with
information provided to the Host Team shrouded, or otherwise not disclosed. provisions of the Convention,
during inspections must be identified by (2) Before or after inspections, particularly with the provisions of the
the inspected facility so that the Host confidential business information Annex on the Protection of Confidential
Team can arrange appropriate marking related to an inspection that is Information (Confidentiality Annex).
and handling. contained in any documents or that is (ii) Convention provisions. (A) The
(b) Confidential business information reported to, or otherwise acquired by, Convention provides that States Parties
contained in declarations and reports. the U.S. Government, such as facility may designate information submitted to
(1) BIS has identified those data fields information for pre-inspection briefings, the Technical Secretariat as
on the declaration and report forms that facility agreements, and inspection confidential, and requires the OPCW to
request ‘‘confidential business reports, must be identified by the limit access to, and prevent disclosure
information’’ as defined by the Act. facility so that it may be appropriately of, information so designated, except
These data fields are identified in the marked and handled. If the U.S. that the OPCW may disclose certain
table provided in Supplement No. 1 to Government creates derivative confidential information submitted in
this part. documents from such documents or declarations to other States Parties if
(2) You must specifically identify in reported information, they will also be requested. The OPCW has developed a
a cover letter submitted with your marked and handled as confidential classification system whereby States
declaration or report any additional business information. Parties may designate the information
information on a declaration or report they submit in their declarations as
form (i.e., information not provided in § 718.3 Disclosure of confidential ‘‘restricted,’’ ‘‘protected,’’ or ‘‘highly
one of the data fields listed in the table business information. protected,’’ depending on the sensitivity
included in Supplement No. 1 to this (a) General. Confidentiality of of the information. Other States Parties
part), including information provided in information will be maintained by BIS are obligated, under the Convention, to
attachments to Form A or Form B, that consistent with the non-disclosure store and restrict access to information
you believe is confidential business provisions of the Act, the Export which they receive from the OPCW in
information, as defined by the Act, and Administration Regulations (15 CFR accordance with the level of
must describe how disclosure would parts 730 through 799), the International confidentiality established for that
likely result in competitive harm. Traffic in Arms Regulations (22 CFR information.
parts 120 through 130), and applicable (B) The OPCW Inspection Team
Note to § 718.2(b): BIS has also determined exemptions under the Freedom of members are prohibited, under the
that descriptions of Schedule 1 facilities Information Act, as appropriate. terms of their employment contracts and
submitted with Initial Declarations as
attachments to Form A contain confidential
(b) Disclosure of confidential business pursuant to the Confidentiality Annex
business information, as defined by the Act. information contained in advance of the Convention, from disclosing to
notifications. Information contained in any unauthorized persons, during their
(c) Confidential business information advance notifications of exports and employment and for five years after
contained in advance notifications. imports of Schedule 1 chemicals is not termination of their employment, any
Information contained in advance subject to the confidential business confidential information coming to their
notifications of exports and imports of information provisions of the Act. knowledge or into their possession in
Schedule 1 chemicals is not subject to Disclosure of such information will be the performance of their official duties.
the confidential business information in accordance with the provisions of the (iii) U.S. Government designation of
provisions of the Act. You must identify relevant statutory and regulatory information to the Technical
information in your advance authorities as follows: Secretariat. It is the policy of the U.S.
notifications of Schedule 1 imports that (1) Exports of Schedule 1 chemicals. Government to designate all facility
you consider to be privileged and Confidentiality of all information information it provides to the Technical
confidential, and describe how contained in these advance notifications Secretariat in declarations, reports and
disclosure would likely result in will be maintained consistent with the Schedule 1 advance notifications as
competitive harm. See § 718.3(b) of the non-disclosure provisions of the Export ‘‘protected.’’ It is the policy of the U.S.
CWCR for provisions on disclosure to Administration Regulations (15 CFR Government to designate confidential
the public of such information by the parts 730 through 799), the International business information that it discloses to
U.S. Government. Traffic in Arms Regulations (22 CFR Inspection Teams during inspections as
(d) Confidential business information parts 120 through 130), and applicable ‘‘protected’’ or ‘‘highly protected,’’
related to inspections disclosed to, exemptions under the Freedom of depending on the sensitivity of the
reported to, or otherwise acquired by, Information Act, as appropriate; and information. The Technical Secretariat
the U.S. Government. (1) During (2) Imports of Schedule 1 chemicals. is responsible for storing and limiting
inspections, certain confidential Confidentiality of information contained access to any confidential business
business information, as defined by the in these advance notifications will be information contained in a document
Act, may be disclosed to the Host Team. maintained pursuant to applicable according to its established procedures.
Facilities being inspected are exemptions under the Freedom of (2) Disclosure to Congress. Section
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responsible for identifying confidential Information Act. 404(b)(2) of the Act provides that the
business information to the Host Team, (c) Disclosure of confidential business U.S. Government must disclose
so that if it is disclosed to the Inspection information pursuant to § 404(b) of the confidential business information to any
Team, appropriate marking and Act—(1) Disclosure to the Organization committee or subcommittee of Congress
handling can be arranged, in accordance for the Prohibition of Chemical with appropriate jurisdiction upon the

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written request of the chairman or information pertains of the intent to 719.4 Violations and sanctions under the
ranking minority member of such disclose the information. Act not subject to proceedings under the
committee or subcommittee. No such CWCR.
719.5 Initiation of administrative
committee or subcommittee, and no SUPPLEMENT NO. 1 TO PART 718.— proceedings.
member and no staff member of such CONFIDENTIAL BUSINESS INFORMA- 719.6 Request for hearing and answer.
committee or subcommittee, may TION DECLARED OR REPORTED * 719.7 Representation.
disclose such information or material 719.8 Filing and service of papers other
except as otherwise required or Fields containing than the NOVA.
authorized by law. confidential business 719.9 Summary decision.
(3) Disclosure to other Federal information 719.10 Discovery.
agencies for law enforcement actions 719.11 Subpoenas.
and disclosure in enforcement Schedule 1 Forms: 719.12 Matters protected against disclosure.
Certification Form .. NONE. 719.13 Prehearing conference.
proceedings under the Act. Section
Form 1–1 ............... NONE. 719.14 Hearings.
404(b)(3) of the Act provides that the Form 1–2 ............... All fields.
U.S. Government must disclose 719.15 Procedural stipulations.
Form 1–2A ............. All fields. 719.16 Extension of time.
confidential business information to Form 1–2B ............. All fields. 719.17 Post-hearing submissions.
other Federal agencies for enforcement Form 1–3 ............... All fields. 719.18 Decisions.
of the Act or any other law, and must Form 1–4 ............... All fields. 719.19 Settlement.
disclose such information when Schedule 2 Forms: 719.20 Record for decision.
relevant in any proceeding under the Certification Form .. NONE. 719.21 Payment of final assessment.
Act. Disclosure will be made in such Form 2–1 ............... NONE. 719.22 Reporting a violation.
manner as to preserve confidentiality to Form 2–2 ............... Question 2–2.9
Form 2–3 ............... All fields. Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C.
the extent practicable without impairing 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
Form 2–3A ............. All fields.
the proceeding. Section 719.14(b) of the 12938, 59 FR 59099, 3 CFR 1994, Comp., p.
Form 2–3B ............. All fields.
CWCR provides that all hearings will be Form 2–3C ............ All fields. 950; E.O. 13128, 64 FR 36703, 3 CFR 1999
closed, unless the Administrative Law Form 2–4 ............... All fields. Comp., p. 199.
Judge for good cause shown determines Schedule 3 Forms: § 719.1 Scope and definitions.
otherwise. Section 719.20 of the CWCR Certification Form .. NONE.
provides that parties may request that Form 3–1 ............... NONE. (a) Scope. This part 719 describes the
the administrative law judge segregate Form 3–2 ............... NONE. various sanctions that apply to
and restrict access to confidential Form 3–3 ............... All fields. violations of the Act and the CWCR. It
business information contained in Form 3–4 ............... All fields. also establishes detailed administrative
material in the record of an enforcement Unscheduled Discrete procedures for certain violations of the
Organic Chemicals Act. The three categories of violations
proceeding.
Forms: are as follows:
(4) Disclosure to the public; national
Certification Form .. NONE. (1) Violations of the Act subject to
interest determination. Section 404(c) of Form UDOC .......... NONE.
the Act provides that confidential administrative and criminal
FORMS A and B and Case-by-case; must
business information, as defined by the attachments (all be identified by enforcement proceedings. Section 719.2
Act, that is in the possession of the U.S. Schedules and submitter. of the CWCR sets forth violations for
Government, is exempt from public UDOCs). which the statutory basis is the Act. BIS
disclosure in response to a Freedom of investigates these violations and, for
* This table lists those data fields on the administrative proceedings, prepares
Information Act request, except when Declaration and Report Forms that request
such disclosure is determined to be in ‘‘confidential business information’’ (CBI) as charges, provides legal representation to
the national interest. defined by the Act (sections 103(g) and the U.S. Government, negotiates
(i) National interest determination. 304(e)(2)). As provided by section 404(a) of settlements, and makes
The United States National Authority the Act, CBI is exempt from disclosure in re- recommendations to officials of the
sponse to a Freedom of Information Act
(USNA), in coordination with the CWC (FOIA) request under sections 552(b)(3) and Department of State with respect to the
interagency group, shall determine on a 552(b)(4) (5 U.S.C.A. 552(b)(3)–(4)), unless a initiation and resolution of proceedings.
case-by-case basis if disclosure of determination is made, pursuant to section The administrative procedures
confidential business information in 404(c) of the Act, that such disclosure is in the applicable to these violations are found
national interest. Other FOIA exemptions to
response to a Freedom of Information disclosure may also apply. You must identify in §§ 719.5 through 719.22 of the CWCR.
Act request is in the national interest. CBI provided in Form A and/or Form B attach- The Department of State gives notice of
(ii) Notification of intent to disclose ments, and provide the reasons supporting initiation of administrative proceedings
pursuant to a national interest your claim of confidentiality, except that and issues orders imposing penalties
Schedule 1 facility technical descriptions sub-
determination. The Act provides for mitted with initial declarations are always con- pursuant to 22 CFR part 103, subpart C.
notification to the affected person of sidered to include CBI. If you believe that in- (2) Violations of the International
intent to disclose confidential business formation you are submitting in a data field Emergency Economic Powers Act
information based on the national marked ‘‘none’’ in the Table is CBI, as defined (IEEPA) subject to judicial enforcement
by the Act, you must identify the specific infor-
interest, unless such notification of mation and provide the reasons supporting proceedings. Section 719.3 of the CWCR
intent to disclose is contrary to national your claim of confidentiality in a cover letter. sets forth violations of the Chemical
security or law enforcement needs. If, Weapons Convention for which the
after coordination with the agencies that PART 719—ENFORCEMENT statutory basis is the IEEPA. BIS refers
constitute the CWC interagency group, these violations to the Department of
Sec.
the USNA does not determine that such Justice for civil or criminal judicial
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719.1 Scope and definitions.


notification of intent to disclose is 719.2 Violations of the Act subject to enforcement.
contrary to national security or law administrative and criminal enforcement (3) Violations and sanctions under the
enforcement needs, the USNA will proceedings. Act not subject to proceedings under the
notify the person that submitted the 719.3 Violations of the IEEPA subject to CWCR. Section 719.4 of the CWCR sets
information and the person to whom the judicial enforcement proceedings. forth violations and sanctions under the

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24964 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

Act that are not violations of the CWCR (2) Failure to establish or maintain convicted under Title 18, section 229 of
and that are not subject to proceedings records. No person may willfully fail or the United States Code.
under the CWCR. This section is refuse:
§ 719.3 Violations of the IEEPA subject to
included solely for informational (i) To establish or maintain any record judicial enforcement proceedings.
purposes. BIS may assist in required by the Act or the CWCR; or
investigations of these violations, but (a) Violations.—(1) Import restrictions
(ii) To submit any report, notice, or
has no authority to initiate any involving Schedule 1 chemicals. Except
other information to the United States
enforcement action under the CWCR. as otherwise provided in § 712.2 of the
Government in accordance with the Act
CWCR, no person may import any
or the CWCR; or
Note to § 719.1(a): This part 719 does not Schedule 1 chemical (See Supplement
apply to violations of the export (iii) To permit access to or copying of No. 1 to part 712 of the CWCR) unless:
requirements imposed pursuant to the any record required to be established or (i) The import is from a State Party;
Chemical Weapons Convention and set forth maintained by the Act or the CWCR, (ii) The import is for research,
in the Export Administration Regulations including any record that is exempt medical, pharmaceutical, or protective
(EAR) (15 CFR parts 730 through 799) and in from disclosure under the Act or the purposes;
the International Traffic in Arms Regulations CWCR. (iii) The import is in types and
(ITAR) (22 CFR parts 120 through 130). (b) Civil penalties.—(1) Civil penalty quantities strictly limited to those that
(b) Definitions. The following are for refusal to permit entry or inspection. can be justified for such purposes; and
definitions of terms as used only in Any person that is determined to have (iv) The importing person has notified
parts 719 and 720 of the CWCR. For willfully failed or refused to permit BIS not less than 45 calendar days
definitions of terms applicable to parts entry or inspection, or to have before the import pursuant to § 712.6 of
710 through 718 and parts 721 and 722 disrupted, delayed or otherwise the CWCR.
of the CWCR, see part 710 of the CWCR. impeded an authorized inspection, as (2) Import restrictions involving
set forth in paragraph (a)(1) of this Schedule 2 chemicals. Except as
Act (The). The Chemical Weapons otherwise provided in § 713.1 of the
section, shall pay a civil penalty in an
Convention Implementation Act of 1998 CWCR, no person may, on or after April
amount not to exceed $25,000 for each
(22 U.S.C. 6701–6777). 29, 2000, import any Schedule 2
violation. Each day the violation
Assistant Secretary for Export continues constitutes a separate chemical (see Supplement No. 1 to part
Enforcement. The Assistant Secretary violation. 713 of the CWCR) from any destination
for Export Enforcement, Bureau of (2) Civil penalty for failure to other than a State Party.
Industry and Security, United States establish or maintain records. Any (b) Civil penalty. A civil penalty not
Department of Commerce. person that is determined to have to exceed $11,000 may be imposed in
Final decision. A decision or order willfully failed or refused to establish or accordance with this part on any person
assessing a civil penalty, or otherwise maintain any record or submit any for each violation of this section.1
disposing of or dismissing a case, which report, notice, or other information (c) Criminal penalty. Whoever
is not subject to further administrative required by the Act or the CWCR, or to willfully violates paragraph (a)(1) or (2)
review, but which may be subject to have willfully failed or refused to of this section shall, upon conviction, be
collection proceedings or judicial permit access to or copying of any fined not more than $50,000, or, if a
review in an appropriate Federal court record, including any record exempt natural person, imprisoned for not more
as authorized by law. from disclosure under the Act or the than ten years, or both; and any officer,
IEEPA. The International Emergency CWCR as set forth in paragraph (a)(2) of director, or agent of any corporation
Economic Powers Act, as amended (50 this section, shall pay a civil penalty in who knowingly participates in such
U.S.C. 1701–1706). an amount not to exceed $5,000 for each violation may be punished by like fine,
Office of Chief Counsel. The Office of violation. imprisonment, or both.2
Chief Counsel for Industry and Security, (c) Criminal penalty. Any person that § 719.4 Violations and sanctions under the
United States Department of Commerce. knowingly violates the Act by willfully Act not subject to proceedings under the
Report. For purposes of parts 719 and failing or refusing to permit entry or CWCR.
720 of the CWCR, the term ‘‘report’’ inspection authorized by the Act; or by (a) Criminal penalties for
means any declaration, report, or willfully disrupting, delaying or development or use of a chemical
advance notification required under otherwise impeding an inspection weapon. Any person who violates 18
parts 712 through 715 of the CWCR. authorized by the Act; or by willfully U.S.C. 229 shall be fined, or imprisoned
Respondent. Any person named as the failing or refusing to establish or for any term of years, or both. Any
subject of a letter of intent to charge, or maintain any required record, or to person who violates 18 U.S.C. 229 and
a Notice of Violation and Assessment submit any required report, notice, or by whose action the death of another
(NOVA) and proposed order. other information; or by willfully failing person is the result shall be punished by
Under Secretary, Bureau of Industry or refusing to permit access to or death or imprisoned for life.
and Security. The Under Secretary, copying of any record, including records (b) Civil penalty for development or
Bureau of Industry and Security, United exempt from disclosure under the Act or use of a chemical weapon. The Attorney
States Department of Commerce. the CWCR, shall, in addition to or in
lieu of any civil penalty that may be 1 The maximum civil penalty allowed under the

§ 719.2 Violations of the Act subject to imposed, be fined under Title 18 of the International Emergency Economic Powers Act is
administrative and criminal enforcement United States Code, be imprisoned for $11,000 for any violation committed on or after
proceedings. October 23, 1996 (15 CFR 6.4(a)(3)).
not more than one year, or both. 2 Alternatively, sanctions may be imposed under
(a) Violations.—(1) Refusal to permit (d) Denial of export privileges. Any 18 U.S.C. 3571, a criminal code provision that
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entry or inspection. No person may person in the United States or any U.S. establishes a maximum criminal fine for a felony
willfully fail or refuse to permit entry or national may be subject to a denial of that is the greatest of: (1) The amount provided by
the statute that was violated; (2) an amount not
inspection, or disrupt, delay or export privileges after notice and more than $250,000 for an individual, or not more
otherwise impede an inspection, opportunity for hearing pursuant to part than $500,000 for an organization; or (3) an amount
authorized by the Act. 720 of the CWCR if that person has been based on gain or loss from the offense.

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General may bring a civil action in the not contact BIS within the specified of the request for hearing. The request
appropriate United States district court time, or if the respondent requests it, for hearing and answer must be filed
against any person who violates 18 BIS will make its request for initiation with the Administrative Law Judge
U.S.C. 229 and, upon proof of such of an administrative enforcement (ALJ), along with a copy of the NOVA
violation by a preponderance of the proceeding to the Secretary of State in and proposed order, and served on the
evidence, such person shall be subject accordance with paragraph (b) of this Office of Chief Counsel, and any other
to pay a civil penalty in an amount not section. address(es) specified in the NOVA, in
to exceed $100,000 for each such (b) Request for Notice of Violation accordance with § 719.8 of the CWCR.
violation. and Assessment (NOVA). The Director
of the Office of Export Enforcement, (b) Content of answer. The
(c) Criminal forfeiture. (1) Any person
Bureau of Industry and Security, may respondent’s answer must be responsive
convicted under section 229A(a) of Title
request that the Secretary of State to the NOVA and proposed order, and
18 of the United States Code shall forfeit
to the United States irrespective of any initiate an administrative enforcement must fully set forth the nature of the
provision of State law: proceeding under this § 719.5 and 22 respondent’s defense(s). The answer
(i) Any property, real or personal, CFR 103.7. If the request is in must specifically admit or deny each
owned, possessed, or used by a person accordance with applicable law, the separate allegation in the NOVA; if the
involved in the offense; Secretary of State will initiate an respondent is without knowledge, the
(ii) Any property constituting, or administrative enforcement proceeding answer will so state and will operate as
derived from, and proceeds the person by issuing a NOVA. The Office of Chief a denial. Failure to deny or controvert
obtained, directly or indirectly, as the Counsel shall serve the NOVA as a particular allegation will be deemed
result of such violation; and directed by the Secretary of State. an admission of that allegation. The
(iii) Any of the property used in any (c) Content of NOVA. The NOVA answer must also set forth any
manner or part, to commit, or to shall constitute a formal complaint, and additional or new matter the respondent
facilitate the commission of, such will set forth the basis for the issuance contends supports a defense or claim of
violation. of the proposed order. It will set forth mitigation. Any defense or partial
(2) In lieu of a fine otherwise the alleged violation(s) and the essential defense not specifically set forth in the
authorized by section 229A(a) of Title facts with respect to the alleged answer shall be deemed waived, and
18 of the United States Code, a violation(s), reference the relevant evidence thereon may be refused, except
defendant who derived profits or other statutory, regulatory or other provisions, for good cause shown.
proceeds from an offense may be fined and state the amount of the civil penalty
(c) English required. The request for
not more than twice the gross profits or to be assessed. The NOVA will inform
hearing, answer, and all other papers
other proceeds. the respondent of the right to request a
and documentary evidence must be
(d) Injunction. (1) The United States hearing pursuant to § 719.6 of the
CWCR, inform the respondent that submitted in English.
may, in a civil action, obtain an
injunction against: failure to request such a hearing shall (d) Waiver. The failure of the
(i) The conduct prohibited under result in the proposed order becoming respondent to file a request for a hearing
section 229 or 229C of Title 18 of the final and unappealable on signature of and an answer within the times
United States Code; or the Secretary of State, and provide provided constitutes a waiver of the
(ii) The preparation or solicitation to payment instructions. A copy of the respondent’s right to appear and contest
engage in conduct prohibited under regulations that govern the the allegations set forth in the NOVA
section 229 or 229D of Title 18 of the administrative proceedings will and proposed order. If no hearing is
United States Code. accompany the NOVA. requested and no answer is provided,
(2) In addition, the United States may, (d) Proposed order. A proposed order the proposed order will be signed and
in a civil action, restrain any violation shall accompany every NOVA, letter of become final and unappealable.
of section 306 or 405 of the Act, or intent to charge, and draft NOVA. It will
compel the taking of any action required briefly set forth the substance of the § 719.7 Representation.
by or under the Act or the Convention. alleged violation(s) and the statutory, A respondent individual may appear
regulatory or other provisions violated. and participate in person, a corporation
§ 719.5 Initiation of administrative
It will state the amount of the civil by a duly authorized officer or
proceedings.
penalty to be assessed. employee, and a partnership by a
(a) Letter of intent to charge. The (e) Notice. Notice of the intent to
Director of the Office of Export partner. If a respondent is represented
charge or of the initiation of formal
Enforcement, Bureau of Industry and by counsel, counsel shall be a member
proceedings shall be given to the
Security, may notify a respondent by in good standing of the bar of any State,
respondent (or respondent’s agent for
letter of the intent to charge. This letter service of process, or attorney) by Commonwealth or Territory of the
of intent to charge will advise a sending relevant documents, via first United States, or of the District of
respondent that BIS has conducted an class mail, facsimile, or by personal Columbia, or be licensed to practice law
investigation and intends to recommend delivery. in the country in which counsel resides,
that the Secretary of State issue a Notice if not the United States. The U.S.
of Violation and Assessment (NOVA). § 719.6 Request for hearing and answer. Government will be represented by the
The letter of intent to charge will be (a) Time to answer. If the respondent Office of Chief Counsel. A respondent
accompanied by a draft NOVA and wishes to contest the NOVA and personally, or through counsel or other
proposed order, and will give the proposed order issued by the Secretary representative who has the power of
respondent a specified period of time to of State, the respondent must request a attorney to represent the respondent,
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contact BIS to discuss settlement of the hearing in writing within 15 business shall file a notice of appearance with the
allegations set forth in the draft NOVA. days from the postmarked date of the ALJ, or, in cases where settlement
An administrative enforcement NOVA. If the respondent requests a negotiations occur before any filing with
proceeding is not initiated by a letter of hearing, the respondent must answer the ALJ, with the Office of Chief
intent to charge. If the respondent does the NOVA within 30 days from the date Counsel.

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§ 719.8 Filing and service of papers other Saturday, a Sunday, nor a legal holiday. in detail the reasons why the party to
than the NOVA. Intermediate Saturdays, Sundays, and whom the request is directed cannot
(a) Filing. All papers to be filed with legal holidays are excluded from the truthfully either admit or deny such
the ALJ shall be addressed to ‘‘CWC computation when the period of time matters.
Administrative Enforcement prescribed or allowed is 7 days or less. (c) Depositions. Upon application of a
Proceedings’’ at the address set forth in party and for good cause shown, the ALJ
the NOVA, or such other place as the § 719.9 Summary decision. may order the taking of the testimony of
ALJ may designate. Filing by United The ALJ may render a summary any person by deposition and the
States mail (first class postage prepaid), decision disposing of all or part of a production of specified documents or
by express or equivalent parcel delivery proceeding on the motion of any party materials by the person at the
service, via facsimile, or by hand to the proceeding, provided that there is deposition. The application shall state
delivery, is acceptable. Filing from a no genuine issue as to any material fact the purpose of the deposition and set
foreign country shall be by airmail or and the party is entitled to summary forth the facts sought to be established
via facsimile. A copy of each paper filed decision as a matter of law. through the deposition.
shall be simultaneously served on all (d) Enforcement. The ALJ may order
§ 719.10 Discovery.
parties. a party to answer designated questions,
(b) Service. Service shall be made by (a) General. The parties are to produce specified documents or
United States mail (first class postage encouraged to engage in voluntary things or to take any other action in
prepaid), by express or equivalent discovery regarding any matter, not response to a proper discovery request.
parcel delivery service, via facsimile, or privileged, which is relevant to the If a party does not comply with such an
by hand delivery of one copy of each subject matter of the pending order, the ALJ may make a
paper to each party in the proceeding. proceeding. The provisions of the determination or enter any order in the
The Department of State is a party to Federal Rules of Civil Procedure relating proceeding as the ALJ deems reasonable
cases under the CWCR, but will be to discovery apply to the extent and appropriate. The ALJ may strike
represented by the Office of Chief consistent with this part and except as related charges or defenses in whole or
Counsel. Therefore, service on the otherwise provided by the ALJ or by in part or may take particular facts
government party in all proceedings waiver or agreement of the parties. The relating to the discovery request to
shall be addressed to Office of Chief ALJ may make any order which justice which the party failed or refused to
Counsel for Industry and Security, U.S. requires to protect a party or person respond as being established for
Department of Commerce, 14th Street from annoyance, embarrassment, purposes of the proceeding in
and Constitution Avenue, NW., Room oppression, or undue burden or accordance with the contentions of the
H–3839, Washington, DC 20230, or sent expense. These orders may include party seeking discovery. In addition,
via facsimile to (202) 482–0085. Service limitations on the scope, method, time enforcement by any district court of the
on a respondent shall be to the address and place of discovery, and provisions United States in which venue is proper
to which the NOVA and proposed order for protecting the confidentiality of may be sought as appropriate.
was sent, or to such other address as the classified or otherwise sensitive
respondent may provide. When a party information, including Confidential § 719.11 Subpoenas.
has appeared by counsel or other Business Information (CBI) as defined (a) Issuance. Upon the application of
representative, service on counsel or by the Act. any party, supported by a satisfactory
other representative shall constitute (b) Interrogatories and requests for showing that there is substantial reason
service on that party. admission or production of documents. to believe that the evidence would not
(c) Date. The date of filing or service A party may serve on any party otherwise be available, the ALJ may
is the day when the papers are interrogatories, requests for admission, issue subpoenas to any person requiring
deposited in the mail or are delivered in or requests for production of documents the attendance and testimony of
person, by delivery service, or by for inspection and copying, and a party witnesses and the production of such
facsimile. Refusal by the person to be concerned may apply to the ALJ for books, records or other documentary or
served, or by the person’s agent or such enforcement or protective order as physical evidence for the purpose of the
attorney, of service of a document or that party deems warranted with respect hearing, as the ALJ deems relevant and
other paper will be considered effective to such discovery. The service of a material to the proceedings, and
service of the document or other paper discovery request shall be made at least reasonable in scope. Witnesses shall be
as of the date of such refusal. 20 days before the scheduled date of the paid the same fees and mileage that are
(d) Certificate of service. A certificate hearing unless the ALJ specifies a paid to witnesses in the courts of the
of service signed by the party making shorter time period. Copies of United States. In case of contempt,
service, stating the date and manner of interrogatories, requests for admission challenge or refusal to obey a subpoena
service, shall accompany every paper, and requests for production of served upon any person pursuant to this
other than the NOVA and proposed documents and responses thereto shall paragraph, any district court of the
order, filed and served on the parties. be served on all parties and a copy of United States, in which venue is proper,
(e) Computation of time. In computing the certificate of service shall be filed has jurisdiction to issue an order
any period of time prescribed or with the ALJ. Matters of fact or law of requiring any such person to comply
allowed by this part, the day of the act, which admission is requested shall be with such subpoena. Any failure to obey
event, or default from which the deemed admitted unless, within a such order of the court is punishable by
designated period of time begins to run period designated in the request (at least the court as a contempt thereof.
is not to be included. The last day of the 10 days after service, or within such (b) Service. Subpoenas issued by the
period so computed is to be included additional time as the ALJ may allow), ALJ may be served by any of the
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unless it is a Saturday, a Sunday, or a the party to whom the request is methods set forth in § 719.8(b) of the
legal holiday (as defined in Rule 6(a) of directed serves upon the requesting CWCR.
the Federal Rules of Civil Procedure), in party a sworn statement either denying (c) Timing. Applications for
which case the period runs until the end specifically the matters of which subpoenas must be submitted at least 10
of the next day which is neither a admission is requested or setting forth days before the scheduled hearing or

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deposition, unless the ALJ determines, parties to correspond with the ALJ to stipulation agreed to by all parties and
for good cause shown, that achieve the purposes of such a filed with the ALJ will modify the
extraordinary circumstances warrant a conference. procedures established by this part.
shorter time. (d) The ALJ will prepare a summary
of any actions agreed on or taken § 719.16 Extension of time.
§ 719.12 Matters protected against pursuant to this section. The summary The parties may extend any
disclosure. applicable time limitation by stipulation
will include any written stipulations or
(a) Protective measures. The ALJ may agreements made by the parties. filed with the ALJ before the time
limit discovery or introduction of limitation expires, or the ALJ may, on
evidence or issue such protective or § 719.14 Hearings. the ALJ’s own initiative or upon
other orders as in the ALJ’s judgment (a) Scheduling. Upon receipt of a application by any party, either before
may be needed to prevent undue written and dated request for a hearing, or after the expiration of any applicable
disclosure of classified or sensitive the ALJ shall, by agreement with all the time limitation, extend the time , except
documents or information, including parties or upon notice to all parties of that the requirement that a hearing be
Confidential Business Information as at least 30 days, schedule a hearing. All demanded within 15 days, and the
defined by the Act. Where the ALJ hearings will be held in Washington, requirement that a final agency decision
determines that documents containing DC, unless the ALJ determines, for good be made within 30 days, may not be
classified or sensitive matter must be cause shown, that another location modified.
made available to a party in order to would better serve the interest of justice.
avoid prejudice, the ALJ may direct the (b) Hearing procedure. Hearings will § 719.17 Post-hearing submissions.
other party to prepare an unclassified be conducted in a fair and impartial All parties shall have the opportunity
and nonsensitive summary or extract of manner by the ALJ. All hearings will be to file post-hearing submissions that
the documents. The ALJ may compare closed, unless the ALJ for good cause may include findings of fact and
the extract or summary with the original shown determines otherwise. The rules conclusions of law, supporting evidence
to ensure that it is supported by the of evidence prevailing in courts of law and legal arguments, exceptions to the
source document and that it omits only do not apply, and all evidentiary ALJ’s rulings or to the admissibility of
so much as must remain undisclosed. material deemed by the ALJ to be evidence, and proposed orders and
The summary or extract may be relevant and material to the proceeding settlements.
admitted as evidence in the record. and not unduly repetitious will be
§ 719.18 Decisions.
(b) Arrangements for access. If the ALJ received and given appropriate weight,
determines that the summary procedure except that any evidence of settlement (a) Initial decision. After considering
outlined in paragraph (a) of this section which would be excluded under Rule the entire record in the case, the ALJ
is unsatisfactory, and that classified or 408 of the Federal Rules of Evidence is will issue an initial decision based on
otherwise sensitive matter must form not admissible. Witnesses will testify a preponderance of the evidence. The
part of the record in order to avoid under oath or affirmation, and shall be decision will include findings of fact,
prejudice to a party, the ALJ may subject to cross-examination. conclusions of law, and a decision
provide the parties opportunity to make (c) Testimony and record. (1) A based thereon as to whether the
arrangements that permit a party or a verbatim record of the hearing and of respondent has violated the Act. If the
representative to have access to such any other oral proceedings will be taken ALJ finds that the evidence of record is
matter without compromising sensitive by reporter or by electronic recording, insufficient to sustain a finding that a
information. Such arrangements may and filed with the ALJ. If any party violation has occurred with respect to
include obtaining security clearances or wishes to obtain a written copy of the one or more allegations, the ALJ shall
giving counsel for a party access to transcript, that party shall pay the costs order dismissal of the allegation(s) in
sensitive information and documents of transcription. The parties may share whole or in part, as appropriate. If the
subject to assurances against further the costs if both wish a transcript. ALJ finds that one or more violations
disclosure, including a protective order, (2) Upon such terms as the ALJ deems have been committed, the ALJ shall
if necessary. just, the ALJ may direct that the issue an order imposing administrative
testimony of any person be taken by sanctions.
§ 719.13 Prehearing conference. deposition and may admit an affidavit (b) Factors considered in assessing
(a) On the ALJ’s own motion, or on or declaration as evidence, provided penalties. In determining the amount of
request of a party, the ALJ may direct that any affidavits or declarations have a civil penalty, the ALJ shall take into
the parties to participate in a prehearing been filed and served on the parties account the nature, circumstances,
conference, either in person or by sufficiently in advance of the hearing to extent and gravity of the violation(s),
telephone, to consider: permit a party to file and serve an and, with respect to the respondent, the
(1) Simplification of issues; objection thereto on the grounds that it respondent’s ability to pay the penalty,
(2) The necessity or desirability of is necessary that the affiant or declarant the effect of a civil penalty on the
amendments to pleadings; testify at the hearing and be subject to respondent’s ability to continue to do
(3) Obtaining stipulations of fact and cross-examination. business, the respondent’s history of
of documents to avoid unnecessary (d) Failure to appear. If a party fails prior violations, the respondent’s degree
proof; or to appear in person or by counsel at a of culpability, the existence of an
(4) Such other matters as may scheduled hearing, the hearing may internal compliance program, and such
expedite the disposition of the nevertheless proceed. The party’s failure other matters as justice may require.
proceedings. to appear will not affect the validity of (c) Certification of initial decision.
(b) The ALJ may order the conference the hearing or any proceeding or action The ALJ shall immediately certify the
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proceedings to be recorded taken thereafter. initial decision and order to the


electronically or taken by a reporter, Executive Director of the Office of Legal
transcribed and filed with the ALJ. § 719.15 Procedural stipulations. Adviser, U.S. Department of State, 2201
(c) If a prehearing conference is Unless otherwise ordered and subject C Street, NW., Room 5519, Washington,
impracticable, the ALJ may direct the to § 719.16 of the CWCR, a written DC 20520, to the Office of Chief Counsel

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at the address in § 719.8, and to the decision. When a case is settled, the deducted from any sum(s) owed by the
respondent, by personal delivery or record will consist of any and all of the United States to a respondent.
overnight mail. foregoing, as well as the NOVA or draft
(d) Review of initial decision. The NOVA, settlement agreement, and order. § 719.22 Reporting a violation.
initial decision shall become the final (b) Restricted access. On the ALJ’s If a person learns that a violation of
agency decision and order unless, own motion, or on the motion of any the Convention, the Act, or the CWCR
within 30 days, the Secretary of State party, the ALJ may direct that there be has occurred or may occur, that person
modifies or vacates it, with or without a restricted access portion of the record may notify: Office of Export
conditions, in accordance with 22 CFR for any material in the record to which Enforcement, Bureau of Industry and
103.8. public access is restricted by law or by Security, U.S. Department of Commerce,
the terms of a protective order entered 14th Street and Constitution Avenue,
§ 719.19 Settlement. in the proceedings. A party seeking to NW., Room H–4520, Washington, DC
(a) Settlements before issuance of a restrict access to any portion of the 20230; Tel: (202) 482–1208; Facsimile:
NOVA. When the parties have agreed to record is responsible, prior to the close (202) 482–0964.
a settlement of the case, the Director of of the proceeding, for submitting a
the Office of Export Enforcement will version of the document(s) proposed for PART 720—DENIAL OF EXPORT
recommend the settlement to the public availability that reflects the PRIVILEGES
Secretary of State, forwarding a requested deletion. The restricted access Sec.
proposed settlement agreement and portion of the record will be placed in 720.1 Denial of export privileges for
order, which, in accordance with 22 a separate file and the file will be clearly convictions under 18 U.S.C. 229.
CFR 103.9(a), the Secretary of State will marked to avoid improper disclosure 720.2 Initiation of administrative action
approve and sign if the recommended and to identify it as a portion of the denying export privileges.
settlement is in accordance with official record in the proceedings. The 720.3 Final decision on administrative
applicable law. ALJ may act at any time to permit action denying export privileges.
(b) Settlements following issuance of material that becomes declassified or 720.4 Effect of denial.
a NOVA. The parties may enter into unrestricted through passage of time to Authority: 22 U.S.C. 6701 et seq.; E.O.
settlement negotiations at any time be transferred to the unrestricted access 13128, 64 FR 36703, 3 CFR 1999 Comp.,
during the time a case is pending before portion of the record. p. 199.
the ALJ. If necessary, the parties may (c) Availability of documents.—(1)
extend applicable time limitations or § 720.1 Denial of export privileges for
Scope. All NOVAs and draft NOVAs, convictions under 18 U.S.C. 229.
otherwise request that the ALJ stay the answers, settlement agreements,
proceedings while settlement decisions and orders disposing of a case Any person in the United States or
negotiations continue. When the parties will be displayed on the BIS Freedom of any U.S. national may be denied export
have agreed to a settlement of the case, Information Act (FOIA) Web site, at privileges after notice and opportunity
the Office of Chief Counsel will http://www.bis.doc.gov/foia, which is for hearing if that person has been
recommend the settlement to the maintained by the Office of convicted under Title 18, Section 229 of
Secretary of State, forwarding a Administration, Bureau of Industry and the United States Code of knowingly:
proposed settlement agreement and Security, U.S. Department of Commerce. (a) Developing, producing, otherwise
order, which, in accordance with 22 This office does not maintain a separate acquiring, transferring directly or
CFR 103.9(b), the Secretary will approve inspection facility. The complete record indirectly, receiving, stockpiling,
and sign if the recommended settlement for decision, as defined in paragraphs retaining, owning, possessing, or using,
is in accordance with applicable law. (a) and (b) of this section will be made or threatening to use, a chemical
(c) Settlement scope. Any respondent available on request. weapon; or
who agrees to an order imposing any (2) Timing. The record for decision (b) Assisting or inducing, in any way,
administrative sanction does so solely will be available only after the final any person to violate paragraph (a) of
for the purpose of resolving the claims administrative disposition of a case. this section, or attempting or conspiring
in the administrative enforcement Parties may seek to restrict access to any to violate paragraph (a) of this section.
proceeding brought under this part. This portion of the record under paragraph § 720.2 Initiation of administrative action
reflects the fact that the government (b) of this section. denying export privileges.
officials involved have neither the
authority nor the responsibility for § 719.21 Payment of final assessment. (a) Notice. BIS will notify any person
initiating, conducting, settling, or (a) Time for payment. Full payment of convicted under Section 229, Title 18,
otherwise disposing of criminal the civil penalty must be made within United States Code, of BIS’s intent to
proceedings. That authority and 30 days of the effective date of the order deny that person’s export privileges.
responsibility are vested in the Attorney or within such longer period of time as The notification letter shall reference
General and the Department of Justice. may be specified in the order. Payment the person’s conviction, specify the
(d) Finality. Cases that are settled may shall be made in the manner specified number of years for which BIS intends
not be reopened or appealed. in the NOVA. to deny export privileges, set forth the
(b) Enforcement of order. The statutory and regulatory authority for
§ 719.20 Record for decision. government party may, through the the action, state whether the denial
(a) The record. The transcript of Attorney General, file suit in an order will be standard or non-standard
hearings, exhibits, rulings, orders, all appropriate district court if necessary to pursuant to Supplement No. 1 to part
papers and requests filed in the enforce compliance with a final order 764 of the Export Administration
proceedings, and, for purposes of any issued under the CWCR. This suit will Regulations (15 CFR parts 730 through
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appeal under § 719.18 or under 22 CFR include a claim for interest at current 799), and provide that the person may
103.8, the decision of the ALJ and such prevailing rates from the date payment request a hearing before the
submissions as are provided for under was due or ordered. Administrative Law Judge within 30
§ 719.18 or 22 CFR 103.8 will constitute (c) Offsets. The amount of any civil days from the date of the notification
the record and the exclusive basis for penalty imposed by a final order may be letter.

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(b) Waiver. The failure of the notified (iv) That the decision or the extent of knowledgeable personnel for locating,
person to file a request for a hearing sanctions is arbitrary, capricious or an reading, and reproducing any record.
within the time provided constitutes a abuse of discretion.
(2) The appeal must specify the § 721.2 Recordkeeping.
waiver of the person’s right to contest
the denial of export privileges that BIS grounds on which the appeal is based (a) Requirements. Each person,
intends to impose. and the provisions of the order from facility, plant site or trading company
(c) Order of Assistant Secretary. If no which the appeal was taken. required to submit a declaration, report,
hearing is requested, the Assistant (d) Appeal procedure. The Under or advance notification under parts 712
Secretary for Export Enforcement will Secretary, Bureau of Industry and through 715 of the CWCR must retain all
order that export privileges be denied as Security, normally will not hold supporting materials and
indicated in the notification letter. hearings or entertain oral arguments on documentation used by a unit, plant,
appeals. A full written statement in facility, plant site or trading company to
§ 720.3 Final decision on administrative support of the appeal must be filed with prepare such declaration, report, or
action denying export privileges. advance notification to determine
the appeal and be simultaneously
(a) Hearing. Any hearing that is served on all parties, who shall have 30 production processing, consumption,
granted by the ALJ shall be conducted days from service to file a reply. At his/ export or import of chemicals. In the
in accordance with the procedures set her discretion, the Under Secretary may event that a declared facility is sold, the
forth in § 719.14 of the CWCR. accept new submissions, but will not previous owner of the facility must
(b) Initial decision and order. After ordinarily accept those submissions retain all such supporting materials and
considering the entire record in the filed more than 30 days after the filing documentation that were not transferred
proceeding, the ALJ will issue an initial of the reply to the appellant’s first to the current owner of the facility (e.g.,
decision and order, based on a submission. as part of the contract involving the sale
preponderance of the evidence. The ALJ (e) Decisions. The Under Secretary’s of the facility)—otherwise, the current
may consider factors such as the decision will be in writing and will be owner of the facility is responsible for
seriousness of the criminal offense that accompanied by an order signed by the retaining such supporting materials and
is the basis for conviction, the nature Under Secretary, Bureau of Industry and documentation. Whenever the previous
and duration of the criminal sanctions Security, giving effect to the decision. owner of a declared facility retains such
imposed, and whether the person has The order may either dispose of the case supporting materials and
undertaken any corrective measures. by affirming, modifying or reversing the documentation, the owner must inform
The ALJ may dismiss the proceeding if order of the ALJ, or may refer the case BIS of any subsequent change in address
the evidence is insufficient to sustain a back to the ALJ for further proceedings. or other contact information, so that BIS
denial of export privileges, or may issue Any order that imposes a denial of will be able to contact the previous
an order imposing a denial of export export privileges will be published in owner of the facility, to arrange for
privileges for the length of time the ALJ the Federal Register. access to such records, if BIS deems
deems appropriate. An order denying them relevant to inspection activities
export privileges may be standard or § 720.4 Effect of denial. involving the facility (see § 716.4 of the
non-standard, as provided in Any person denied export privileges CWCR).
Supplement No. 1 to part 764 of the pursuant to this part shall be considered (b) Five year retention period. All
Export Administration Regulations (15 a ‘‘person denied export privileges’’ for supporting materials and
CFR parts 730 through 799). The initial purposes of the Export Administration documentation required to be kept
decision and order will be served on Regulations (EAR) (15 CFR parts 730 under paragraph (a) of this section must
each party, and will be published in the through 799). Orders denying export be retained for five years from the due
Federal Register as the final decision of privileges pursuant to Parts 764 and 766 date of the applicable declaration,
BIS 30 days after service, unless an of the EAR are published in the Federal report, or advance notification, or for
appeal is filed in accordance with Register when they are issued and are five years from the date of submission
paragraph (c) of this section. legally controlling documents in of the applicable declaration, report or
(c) Grounds for appeal. (1) A party accordance with their terms. BIS advance notification, whichever is later.
may, within 30 days of the ALJ’s initial maintains unofficial compilations of Due dates for declarations, reports and
decision and order, petition the Under persons denied export privileges on its advance notifications are provided in
Secretary, Bureau of Industry and Web site. parts 712 through 715 of the CWCR.
Security, for review of the initial (c) Location of records. If a facility is
decision and order. A petition for PART 721—INSPECTION OF subject to inspection under part 716 of
review must be filed with the Office of RECORDS AND RECORDKEEPING the CWCR, records retained under this
Under Secretary, Bureau of Industry and section must be maintained at the
Sec.
Security, Department of Commerce, 721.1 Inspection of records.
facility or must be accessible
14th Street and Constitution Avenue, 721.2 Recordkeeping. electronically at the facility for purposes
NW., Washington, DC 20230, and shall 721.3 Destruction or disposal of records. of inspection of the facility by
be served on the Office of Chief Counsel Inspection Teams. If a facility is not
Authority: 22 U.S.C. 6701 et seq.; E.O.
for Industry and Security or on the 13128, 64 FR 36703, 3 CFR 1999 Comp., subject to inspection under part 716 of
respondent. Petitions for review may be p. 199. the CWCR, records retained under this
filed only on one or more of the section may be maintained either at the
following grounds: § 721.1 Inspection of records. facility subject to a declaration, report,
(i) That a necessary finding of fact is Upon request by BIS or any other or advance notification requirement, or
omitted, erroneous or unsupported by agency of competent jurisdiction, you at a remote location, but all records
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substantial evidence of record; must permit access to and copying of must be accessible to any authorized
(ii) That a necessary legal conclusion any record relating to compliance with agent, official or employee of the U.S.
or finding is contrary to law; the requirements of the CWCR. This Government under § 721.1 of the CWCR.
(iii) That prejudicial procedural error requires that you make available the (d) Reproduction of original records.
occurred; or equipment and, if necessary, (1) You may maintain reproductions

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24970 Federal Register / Vol. 71, No. 81 / Thursday, April 27, 2006 / Rules and Regulations

instead of the original records provided recognized as complete words or photographic processes, the records
all of the requirements of paragraph (b) numbers. must be maintained according to an
of this section are met. (iv) The system must preserve the index of all records in the system
(2) If you must maintain records initial image (including both obverse following the same criteria that would
under this part, you may use any and reverse sides, unless blank, of paper have been used to organize the records
photostatic, miniature photographic, documents) and record all changes, who had they been maintained in original
micrographic, automated archival made them and when they were made. form.
storage, or other process that This information must be stored in such
completely, accurately, legibly and a manner that none of it may be altered § 721.3 Destruction or disposal of records.
durably reproduces the original records once it is initially recorded. If BIS or other authorized U.S.
(whether on paper, microfilm, or (v) You must establish written government agency makes a formal or
through electronic digital storage procedures to identify the individuals informal request for a certain record or
techniques). The process must meet all who are responsible for the operation, records, such record or records may not
of the following requirements, which use and maintenance of the system. be destroyed or disposed of without the
are applicable to all systems: (vi) You must keep a record of where, written authorization of the requesting
(i) The system must be capable of when, by whom, and on what entity.
reproducing all records on paper. equipment the records and other
(ii) The system must record and be information were entered into the PART 722—INTERPRETATIONS
able to reproduce all marks, system. [RESERVED]
information, and other characteristics of (3) Requirements applicable to a
the original record, including both system based on digital images. For Note: This part is reserved for
obverse and reverse sides (unless blank) systems based on the storage of digital interpretations of parts 710 through 721 and
of paper documents in legible form. images, the system must provide also for applicability of decisions by the
(iii) When displayed on a viewer, Organization for the Prohibition of Chemical
accessibility to any digital image in the
Weapons (OPCW).
monitor, or reproduced on paper, the system. The system must be able to
records must exhibit a high degree of locate and reproduce all records
legibility and readability. For purposes according to the same criteria that PARTS 723–729 [RESERVED]
of this section, legible and legibility would have been used to organize the
mean the quality of a letter or numeral records had they been maintained in Dated: April 12, 2006.
that enable the observer to identify it original form. Matthew S. Borman,
positively and quickly to the exclusion (4) Requirements applicable to a Deputy Assistant Secretary for Export
of all other letters or numerals. Readable system based on photographic Administration.
and readability mean the quality of a processes. For systems based on [FR Doc. 06–3747 Filed 4–26–06; 8:45 am]
group of letters or numerals being photographic, photostatic, or miniature BILLING CODE 3510–33–P
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