BIS Proposes Rule to Update and Clarify the Chemical Weapons Convention Regulations

The Bureau of Industry and Security (BIS) has issued a proposed rule that would revise the Chemical Weapons Convention Regulations (CWCR, 15 CFR Parts 710-722) by updating them to include additional requirements identified in the implementation of the Chemical Weapons Convention (CWC) and to clarify other CWC requirements.

(On April 25, 1997, the U.S. ratified the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the CWC. On December 30, 1999, BIS published an interim rule that established the CWCR.

The CWCR include requirements to report certain activities, involving scheduled chemicals and unscheduled discrete organic chemicals, and to provide access for on-site verification by international inspectors of certain facilities and locations in the U.S.)

BIS' proposed rule also summarizes the public comments it received in response to its December 30, 1999 interim CWCR rule. (See ITT's Online Archives or 12/30/99 news, 99122942, for BP summary of BIS' interim CWCR rule.)

This is Part I of a multi-part series of summaries on this proposed rule and highlights proposed revisions to various sections of 15 CFR Section 710, as follows:

15 CFR 710.1 (Definitions of Terms Used in the CWCR)

This proposed rule would revise 15 CFR 710.1 by amending the definition of "domestic transfer" to clarify that the term, as applied to the declaration requirements for Schedule 2 or Schedule 3 chemicals under the CWCR, means the movement of a Schedule 2 or Schedule 3 chemical, in quantities and concentrations greater than the specified thresholds in the CWC, outside the geographical boundary of a facility in the U.S. to another destination in the U.S., for any purpose.

This proposed rule would add a definition for the term "intermediate" to 15 CFR 710.1 defining it as "a chemical formed through chemical reaction that is subsequently reacted to form another chemical."

(The term "intermediate" also clarifies its use in 15 CFR 712.5(d), 713.2(a)(2)(ii) and 714.1(a)(2)(ii), whereby Schedule 1, Schedule 2 and Schedule 3 chemicals that are intermediates, but not transient intermediates, must be considered when determining if a chemical is subject to declaration. Lastly, Supplement No. 2 to 15 CFR part 715, which provides examples of unscheduled discrete organic chemicals (UDOCs) and UDOC production, indicates that intermediate UDOCs used in a single or multi-step process to produce another declared UDOC are not subject to declaration requirements under the CWCR.)

In addition, this proposed rule would add to 15 CFR 710.1 a definition of the term "advance notification" to mean "a notice informing BIS of a company's intention to export to or import from a State Party a Schedule 1 chemical." Advance notifications must be submitted to BIS at least 45 days prior to the proposed export or import, except for exports or imports of saxitoxin for medical/diagnostic purposes which may be submitted to BIS at least 3 days prior to export or import. The definition proposed by this rule also indicates that this notification requirement is in addition to any export license requirement under the Export Administration Regulations (EAR) (15 CFR Parts 730-799) or the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), or import license requirement under the Alcohol, Tobacco, Firearms and Explosives Regulations (27 CFR part 447).

The definition of the term "production" in 15 CFR 710.1 would be revised by adding certain notes that incorporate decisions by the Organization for the Prohibition of Chemical Weapons' Conference of the States Parties (OPCW/CSP) regarding the production of Schedule 1, 2, and 3 chemicals. The first note would clarify that the production of Schedule 1 chemicals includes formation through chemical synthesis as

well as processing to extract and isolate Schedule 1 chemicals.'' The second note would clarify that the "production'" of a Schedule 2 or Schedule 3 chemical "means all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared."

This proposed rule would add a definition of the term "production by synthesis" in 15 CFR 710.1 to clarify the use of the term in 15 CFR 715.1 (i.e., declaration of production by synthesis of UDOCs for purposes not prohibited by the CWC) and Supplement No. 2 to 15 CFR part 715 (i.e., examples of activities that are not considered to be production by synthesis under 15 CFR part 715). 15 CFR 710.1 would define "production by synthesis" to mean "production of a chemical that is isolated for use or sale."

Finally, this proposed rule would amend 15 CFR 710.1 by adding a definition of the term "transient intermediate'" in order to clarify the scope of the declaration requirements that apply to the production of certain scheduled chemicals. 15 CFR 710.1 would define the term "transient intermediate" to mean "any chemical that is produced in a chemical process, but that only exists for a very short period of time and cannot be isolated, even by modifying or dismantling the plant, altering the chemical production process operating conditions, or stopping the chemical production process altogether."

15 CFR 710.2 (Scope of the CWCR)

This proposed rule would amend 15 CFR 710.2(a) by removing the phrase "The CWCR declaration, reporting, and inspection requirements apply . . " from that paragraph. Removal of this phrase will clarify which persons and facilities are generally subject to the provisions of the CWCR.

15 CFR 710.6 of the CWCR (Relationship Between the CWCR and the Export Administration Regulations)

This proposed rule would amend 15 CFR 710.6 to include a reference to Export Control Classification Number (ECCN) 1C395 on the Commerce Control List (CCL), which is in Supplement No. 1 to 15 CFR part 774. ECCN 1C395 controls the following items: (i) Mixtures that contain more than 10 percent, but less than 30 percent, by weight of any single CWC Schedule 2 chemical identified in ECCN 1C350.b; and (ii) certain medical, analytical, diagnostic and food testing kits that contain CWC Schedule 2 or Schedule 3 chemicals controlled by ECCN 1C350.b or .c, respectively, in an amount not exceeding 300 grams per chemical.

Supplement No. 1 to 15 CFR Part 710 (List of States Parties to the CWC)

This proposed rule would amend Supplement No. 1 to part 710 of the CWCR (States Parties to the CWC) by updating the list of States Parties to include the following recent additions: Afghanistan, Andorra, Azerbaijan, Cape Verde, Chad, Colombia, Dominica, Eritrea, Gabon, Guatemala, Jamaica, Kazakhstan, Kiribati, Kyrgyzstan, Malaysia, Marshall Islands, Micronesia (Federated States of), Mozambique, Nauru, Palau, Rwanda, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa, San Marino, Sao Tome and Principe, Thailand, Timor Leste, Tonga, Uganda, United Arab Emirates, Yemen, and Zambia.

As of June 20, 2004, 164 countries had become States Parties to the CWC.

- written comments due by 01/06/05

BIS proposed rule (FR Pub 12/07/04, D/N 990611158-4077-03) available at

http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-26517.pdf.