[Federal Register Volume 69, Number 234 (Tuesday, December 7, 2004)]
[Proposed Rules]
[Pages 70754-70809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26517]



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Part II





Department of Commerce





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Bureau of Industry and Security



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15 CFR Parts 710, 711, et al.



Chemical Weapons Convention Regulations; Proposed Rule

Federal Register / Vol. 69, No. 234 / Tuesday, December 7, 2004 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 
721, 722, 723, 724, 725, 726, 727, 728 and 729

[Docket No. 990611158-4077-03]
RIN 0694-AB06


Chemical Weapons Convention Regulations

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Proposed rule and request for comments.

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SUMMARY: On April 25, 1997, the United States ratified the Convention 
on the Prohibition of the Development, Production, Stockpiling and Use 
of Chemical Weapons and on Their Destruction, also known as the 
Chemical Weapons Convention (CWC or Convention). The Bureau of Industry 
and Security (BIS) published an interim rule, on December 30, 1999, 
that established the Chemical Weapons Convention Regulations (CWCR) to 
implement the provisions of the CWC affecting U.S. industry and other 
U.S. persons. The CWCR include requirements to report certain 
activities, involving scheduled chemicals and unscheduled discrete 
organic chemicals, and to provide access for on-site verification by 
international inspectors of certain facilities and locations in the 
United States. This proposed rule revises the CWCR by updating them to 
include additional requirements identified in the implementation of the 
CWC and to clarify other CWC requirements.

DATES: Comments on this rule must be received January 6, 2005.

ADDRESSES: You may submit comments, identified by RIN 0694-AB06, by any 
of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#493e2f203a212c3b092b203a672d262a672e263f"><span class="__cf_email__" data-cfemail="4e3928273d262b3c0e2c273d602a212d60292138">[email protected]</span></a>. Include ``RIN 0694-AB06'' in 
the subject line of the message.
    <bullet> Fax: (202) 482-3355. Please alert the Regulatory Policy 
Division, by calling (202) 482-2440, if you are faxing comments.
    <bullet> Mail or Hand Delivery/Courier: Willard Fisher, U.S. 
Department of Commerce, Bureau of Industry and Security, Regulatory 
Policy Division, 14th Street & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230, ATTN: RIN 0694-AB06.

FOR FURTHER INFORMATION CONTACT: For questions of a general or 
regulatory nature, contact the Regulatory Policy Division, telephone: 
(202) 482-2440. For program information on declarations, reports, 
advance notifications, chemical determinations, recordkeeping, 
inspections and facility agreements, contact the Treaty Compliance 
Division, Office of Nonproliferation and Treaty Compliance, telephone: 
(703) 605-4400; for legal questions, contact Rochelle Woodard, Office 
of the Chief Counsel for Industry and Security, telephone: (202) 482-
5301.

SUPPLEMENTARY INFORMATION:

Background

I. Summary of CWCR Changes Contained in This Proposed Rule

    On April 25, 1997, the United States ratified the Convention on the 
Development, Production, Stockpiling and Use of Chemical Weapons and on 
Their Destruction, also known as the Chemical Weapons Convention (CWC 
or Convention). The CWC, which entered into force on April 29, 1997, is 
an arms control treaty with significant non-proliferation aspects. As 
such, the CWC bans the development, production, stockpiling or use of 
chemical weapons and prohibits States Parties to the CWC from assisting 
or encouraging anyone to engage in a prohibited activity. The CWC 
provides for declaration and inspection of all States Parties' chemical 
weapons and chemical weapon production facilities, and oversees the 
destruction of such weapons and facilities. To fulfill its arms control 
and non-proliferation objectives, the CWC also establishes a 
comprehensive verification scheme and requires the declaration and 
inspection of facilities that produce, process or consume certain 
``scheduled'' chemicals and unscheduled discrete organic chemicals, 
many of which have significant commercial applications. The CWC also 
requires States Parties to report exports and imports and to impose 
export and import restrictions on certain chemicals. These requirements 
apply to all entities under the jurisdiction and control of States 
Parties, including commercial entities and individuals. States Parties 
to the CWC, including the United States, have agreed to this 
verification scheme in order to provide transparency and to ensure that 
no State Party to the CWC is engaging in prohibited activities.
    The Chemical Weapons Convention Implementation Act of 1998 (the Act 
or CWCIA) (22 U.S.C. 6701 et seq.), enacted on October 21, 1998, 
authorizes the United States to require the U.S. chemical industry and 
other private entities to submit declarations, notifications and other 
reports and also to provide access for on-site inspections conducted by 
inspectors sent by the Organization for the Prohibition of Chemical 
Weapons. Executive Order (E.O.) 13128 delegates authority to the 
Department of Commerce to promulgate regulations, obtain and execute 
warrants, provide assistance to certain facilities, and carry out 
appropriate functions to implement the CWC, consistent with the Act. 
The Department of Commerce implements CWC import restrictions under the 
authority of the International Emergency Economic Powers Act, the 
National Emergencies Act, and E.O. 12938, as amended by E.O. 13128. The 
Departments of State and Commerce have implemented the CWC export 
restrictions under their respective export control authorities. E.O. 
13128 designates the Department of State as the United States National 
Authority (USNA) for purposes of the CWC and the Act.
    On December 30, 1999, the Bureau of Industry and Security (BIS), 
U.S. Department of Commerce, published an interim rule that established 
the Chemical Weapons Convention Regulations (CWCR) (15 CFR Parts 710-
722). The CWCR implemented the provisions of the CWC, affecting U.S. 
industry and U.S. persons, in accordance with the provisions of the 
Act. This proposed rule revises the CWCR by updating them to include 
additional requirements identified necessary for the implementation of 
the CWC provisions and to clarify other CWC requirements.
    Specifically, this rule proposes to make the following revisions to 
the CWCR:

A. Proposed Revisions to Section 710.1 of the CWCR (Definitions of 
Terms Used in the CWCR)

    This proposed rule revises Sec.  710.1 of the CWCR by amending the 
definition of ``domestic transfer'' to clarify that the term, as 
applied to the declaration requirements for Schedule 2 or Schedule 3 
chemicals under the CWCR, means the movement of a Schedule 2 or 
Schedule 3 chemical, in quantities and concentrations greater than the 
specified thresholds in the convention, outside the geographical 
boundary of a facility in the United States to another destination in 
the United States, for any purpose.
    This proposed rule adds a definition for the term ``intermediate'' 
to Sec.  710.1 of the CWCR in order to clarify the use of that term in 
Sec.  712.5(c) and Supplement No. 2 to part 715 of the CWCR. Section

[[Page 70755]]

710.1 of the CWCR would define ``intermediate'' as ``a chemical formed 
through chemical reaction that is subsequently reacted to form another 
chemical.'' The term ``intermediate'' also clarifies its use in 
Sec. Sec.  712.5(d), 713.2(a)(2)(ii) and 714.1(a)(2)(ii), whereby 
Schedule 1, Schedule 2 and Schedule 3 chemicals that are intermediates, 
but not transient intermediates, must be considered when determining if 
a chemical is subject to declaration. Lastly, Supplement No. 2 to part 
715 of the CWCR, which provides examples of unscheduled discrete 
organic chemicals (UDOCs) and UDOC production, indicates that 
intermediate UDOCs used in a single or multi-step process to produce 
another declared UDOC are not subject to declaration requirements under 
the CWCR.
    In addition, this proposed rule adds a definition of the term 
``advance notification'' to Sec.  710.1 of the CWCR to clarify the use 
of that term in part 712 of the CWCR. Section 710.1 of the CWCR would 
define ``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 Sec.  710.1 of the 
CWCR is revised by adding certain notes that incorporate decisions by 
the Organization for the Prohibition of Chemical Weapons' Conference of 
the States Parties (OPCW/CSP) regarding the production of Schedule 1, 
2, and 3 chemicals. The first note 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 adds a definition of the term ``production by 
synthesis'' in Sec.  710.1 of the CWCR to clarify the use of the term 
in Sec.  715.1 of the CWCR (i.e., declaration of production by 
synthesis of UDOCs for purposes not prohibited by the CWC) and 
Supplement No. 2 to part 715 of the CWCR (i.e., examples of activities 
that are not considered to be production by synthesis under part 715 of 
the CWCR). Section 710.1 of the CWCR would define ``production by 
synthesis'' to mean ``production of a chemical that is isolated for use 
or sale.''
    Finally, this proposed rule amends Sec.  710.1 of the CWCR by 
adding a definition of the term ``transient intermediate'' in order to 
clarify the scope of the declaration requirements that apply to the 
production of certain scheduled chemicals. Section 710.1 of the CWCR 
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.''

B. Proposed Amendments to Section 710.2 of the CWCR (Scope of the CWCR)

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

C. Proposed Amendments to Section 710.6 of the CWCR (Relationship 
Between the CWCR and the Export Administration Regulations)

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

D. Proposed Amendments to Supplement No. 1 to Part 710 of the CWCR 
(List of States Parties to the CWC)

    This proposed rule amends Supplement No. 1 to part 710 of the CWCR 
(States Parties to the Convention on The Prohibition of The 
Development, Production, Stockpiling, and Use of Chemical Weapons and 
on Their Destruction) by updating the list of States Parties to include 
the following recent additions: Afghanistan, Andorra, 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.

E. Proposed Amendments to Part 711 of the CWCR (General Information 
Regarding Declaration, Reporting and Advance Notification Requirements)

    This proposed rule adds a new Sec.  711.3 that establishes BIS's 
authority to contact any company to determine whether it is in 
compliance with the CWCR. Information requested may relate to the 
production, processing, consumption, export, import, or other 
activities involving scheduled chemicals and UDOCs described in Parts 
712 through 715 of this subchapter. Any person or facility subject to 
the CWCR and receiving such a request for information will be required 
to provide a response to BIS within the time-frame specified in the 
request. However, this requirement does not, in itself, impose a 
requirement to create new records or maintain existing records.
    This proposed rule amends Sec.  711.3 of the CWCR by moving it to 
Sec.  711.4 and specifying a time period within which the BIS will 
respond to chemical determination requests. BIS will respond, in 
writing, to a chemical determination request within 10 working days of 
receipt of the request.
    This proposed rule removes the declaration and reporting 
requirements in Sec.  711.4 of the CWCR concerning activities that 
occurred prior to December 30, 1999, since these requirements should 
already have been satisfied. A new Sec.  711.7 is proposed to provide 
information on where to submit

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declarations, advance notifications, and reports.
    New Sec.  711.8 is added with instructions for applying for 
authorization to submit electronic declarations and reports in order to 
fulfill requirements under the Government Paperwork Elimination Act (44 
U.S.C. 3504).

F. Proposed Amendments to Part 712 of the CWCR (Activities Involving 
Schedule 1 Chemicals)

    This proposed rule adds a new Sec.  712.2(a) that prohibits 
production of Schedule 1 chemicals for protective purposes.
    This proposed rule clarifies that initial declarations submitted in 
February 2000 remain valid until they are either amended or rescinded. 
If you plan to alter the technical layout of your declared facility, 
you must submit an amended declaration to BIS at least 200 calendar 
days prior to making any such change to your facility.
    This proposed rule revises Sec.  712.3 of the CWCR by moving the 
annual declaration requirements for Schedule 1 facilities to new Sec.  
712.5.
    This proposed rule amends Sec.  712.4 of the CWCR to clarify the 
declaration requirements that apply to the establishment of new 
Schedule 1 chemical production facilities. If a Schedule 1 chemical 
production facility has never been declared in a previous calendar year 
or its initial declaration has been withdrawn in accordance with the 
requirements of amended Sec.  712.5(f) of this proposed rule, you must 
submit an initial declaration (including a current detailed technical 
description of the facility) to BIS at least 200 calendar days prior to 
commencing production of Schedule 1 chemicals at the facility in 
quantities greater than 100 grams aggregate per year. Such facilities 
are considered to be ``new Schedule 1 chemical production facilities'' 
and are subject to an initial inspection within 200 calendar days of 
the submission of the initial declaration to BIS.
    This proposed rule revises the remainder of part 712 of the CWCR, 
as follows: (1) Advance notification and annual report requirements for 
Schedule 1 chemical exports and imports are proposed to be moved from 
Sec.  712.5 of the CWCR to Sec.  712.6; (2) provisions for Table 1 to 
Sec.  712.6 of the CWCR are proposed to be moved to new Supplement No. 
2 to part 712 of the CWCR; (3) procedures concerning declarations and 
reports returned without action by BIS are proposed to be described in 
new Sec.  712.8 of the CWCR; and (4) the due date for Annual 
Declarations for Anticipated Activities is changed from August 3 to 
September 3 thereby giving Schedule 1 facilities an additional 30 days 
in which to complete and submit their declarations.
    This proposed rule amends the CWCR provisions that require advance 
notification of exports and imports of Schedule 1 chemicals by 
establishing an exception to the requirement that BIS must be notified 
at least 45 calendar days prior to the export or import of a Schedule 1 
chemical to or from another State Party. Advance notification of the 
export or import of 5 milligrams or less of Saxitoxin-B (7), which is 
listed in Supplement No. 1 to part 712 of the CWCR, for medical or 
diagnostic purposes only, would have to be submitted to BIS at least 3 
calendar days (rather than 45 calendar days) prior to the date of 
export or import.
    This proposed rule amends the CWCR provisions concerning 
requirements for amending Schedule 1 declarations and reports. Section 
712.7 of the CWCR is proposed to be amended by clarifying and 
specifying deadlines for: (i) The types of changes to information on 
Schedule 1 chemicals and activities in the Annual Declaration of Past 
Activities that would require submission of an amended declaration to 
BIS; (ii) the types of changes to export or import information in the 
Annual Reports on Exports and Imports from undeclared facilities, 
trading companies and U.S. persons that would require submission of an 
amended report to BIS; and (iii) the types of changes to Schedule 1 
chemical facility information (e.g., change in company name, address, 
declaration point of contact, ownership) that would require submission 
of an amended declaration or report to BIS. In addition, this proposed 
rule adds a new Sec.  712.7(d) to the CWCR that will provide guidance 
concerning the submission of inspection-related amendments. Amended 
declarations, based on the final inspection report, would have to be 
submitted to BIS within 45 calendar days of the date of BIS's post 
inspection letter.
    This proposed rule adds a new Sec.  712.8 to the CWCR that provides 
guidance concerning certain Schedule 1 declarations and reports that 
are returned without action. In these cases, BIS would return without 
action (RWA) any Schedule 1 declarations or reports that are determined 
to be not required by the CWCR. The returned declaration or report 
would be accompanied by a cover letter explaining why the declaration 
or report is being returned without action. BIS would retain a copy of 
the RWA letter, but would not maintain copies of any declarations or 
reports that were returned without action.
    Finally, the provisions in Sec.  712.6 and Table 1 to Sec.  712.6 
of the CWCR, which contain information on the deadlines for submitting 
Schedule 1 declarations, reports, advance notifications and amendments 
to BIS, are updated and moved to Sec.  712.9 and Supplement No. 2 to 
part 712 of the CWCR, respectively.

G. Proposed Amendments to Part 713 of the CWCR (Activities Involving 
Schedule 2 Chemicals)

    This proposed rule adds a prohibition against exports of Schedule 2 
chemicals to States not Party to the CWC in Sec.  713.1(a). Currently, 
the CWCR prohibit imports of Schedule 2 chemicals from States not Party 
to the CWC, but do not prohibit Schedule 2 chemical exports to such 
countries. However, note that Sec.  742.18 of the EAR currently 
requires a license for exports of Schedule 2 chemicals to States not 
Party to the CWC and BIS applies a general policy of denial to license 
applications for such exports. A license is also required for export of 
Schedule 2 chemicals controlled under the ITAR.
    This proposed rule revises Sec.  713.1(b), which exempts certain 
mixtures containing Schedule 2 chemicals from the export and import 
prohibitions contained in Sec.  713.1(a) of the CWCR, as proposed by 
this rule. Currently, Sec.  713.1(b) of the CWCR exempts mixtures 
containing 10 percent or less, by weight, of any single Schedule 2 
chemical. This rule revises Sec.  713.1(b) of the CWCR to exempt the 
following mixtures: (i) Mixtures containing 1 percent or less, by 
weight, of any single Schedule 2A or 2A* chemical; (ii) mixtures 
containing 10 percent or less, by weight, of any single Schedule 2B 
chemical; and (iii) products identified as consumer goods packaged for 
retail sale for personal use or packaged for individual use. However, 
note that the consumer goods exemption for mixtures that contain 
Schedule 2 chemicals identified under ECCN 1C350 on the CCL (Supplement 
No. 1 to part 774 of the EAR) applies only to products identified as 
consumer goods not packaged for retail sale for personal use and not to 
products packaged for individual use (the latter are exempt only by the 
CWCR and not by the Australia Group controls under the EAR).
    In addition, this proposed rule: (i) Removes the provisions 
concerning declarations on past production of Schedule 2 chemicals for 
chemical weapons purposes (currently found in Sec.  713.2 of the CWCR); 
(ii) removes the provisions currently found in

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Sec. Sec.  713.3(a)(1)(i) and 713.4(c)(1) and (2) on Schedule 2 initial 
declarations and initial reports on exports and imports; (iii) amends 
the provisions providing guidance concerning amendments to declarations 
and reports (currently found in Sec.  713.7 of the CWCR); (iv) moves 
the provisions concerning the frequency and timing of declarations and 
reports (currently found in Sec.  713.6 of the CWCR) to Sec.  713.7; 
and (v) provides a description of the procedures that BIS will follow 
concerning declarations and reports RWA'd in Sec.  713.6 of the CWCR.
    This proposed rule moves and revises Sec.  713.3 of the CWCR to 
Sec.  713.2 to clarify the scope of Schedule 2 production activities to 
include any associated processing steps of the Schedule 2 chemical and 
intermediates. Only transient intermediates are exempted. This will 
ensure that the CWCR requirements will apply to Schedule 2 chemical 
production where Schedule 2 chemicals are below the applicable 
concentration threshold when reacted, but subsequently are concentrated 
above the threshold during in-line processing.
    The provisions in Sec.  713.6 and Table 1 to Sec.  713.6 of the 
CWCR, which contain information on the deadlines for submitting 
declarations, reports, advance notifications, and amendments to BIS, 
are proposed to be moved to Sec.  713.7 and Supplement No. 2 to part 
713 of the CWCR, respectively. In addition, the CWCR provisions on 
amended declarations and reports for Schedule 2 chemicals are proposed 
to be moved from Sec.  713.7 of the CWCR to Sec.  713.5 and amended by 
clarifying and specifying deadlines for: (i) The types of changes to 
information on Schedule 2 chemicals and activities in the Annual 
Declaration of Past Activities or the combined declaration and report 
that would require submission of an amended declaration to BIS; (ii) 
the types of changes to export or import information in the Annual 
Reports on Exports and Imports from undeclared facilities, trading 
companies and U.S. persons that would require submission of an amended 
report to BIS; and (iii) the types of changes to Schedule 2 chemical 
facility information (e.g., change in company name, address, 
declaration point of contact, ownership) that would require submission 
of an amended declaration or report to BIS. In addition, this proposed 
rule moves and revises Sec.  713.6(d) of the CWCR to Sec.  713.5(d) to 
provide guidance concerning the submission of inspection-related 
amendments. Amended declarations, based on the final inspection report, 
would have to be submitted to BIS within 45 calendar days of the date 
of BIS's post inspection letter.
    This proposed rule adds Sec.  713.6 of the CWCR to provide guidance 
concerning the return of certain Schedule 2 declarations and reports 
without action. BIS would RWA any Schedule 2 declarations or reports 
that are determined not required by the CWCR. The returned declaration 
or report would be accompanied by a cover letter explaining why the 
declaration or report is being returned without action. BIS would 
retain a copy of the RWA letter, but would not maintain copies of any 
declarations or reports that were returned without action.
    Finally, the provisions in Sec.  713.6 and Table 1 to Sec.  713.6 
of the CWCR, which contain information on the deadlines for submitting 
Schedule 2 declarations, reports, and amendments to BIS, are updated 
and moved to Sec.  713.7 and Supplement No. 2 to part 713 of the CWCR, 
respectively.

H. Proposed Amendments to Part 714 of the CWCR (Activities Involving 
Schedule 3 Chemicals)

    This proposed rule amends part 714 of the CWCR by removing certain 
provisions concerning the past production of Schedule 3 chemicals in 
Sec.  714.1. The requirements concerning when and how to amend 
declarations and reports for Schedule 3 chemicals, currently in Sec.  
714.6 of the CWCR, are proposed to be revised by this rule and moved to 
Sec.  714.4. This rule also proposes to revise Sec.  714.5 of the CWCR, 
which currently addresses the frequency and timing of Schedule 3 
declarations, to describe the BIS procedures for returning declarations 
and reports without action. Section 714.5 is proposed to be moved to 
new Sec.  714.6 and revised to address deadlines for submitting 
Schedule 3 declarations, reports, and amendments.
    Section 714.2 of the CWCR, as proposed to be moved to new Sec.  
714.1 by this rule, will clarify the scope of Schedule 3 production 
activities, as defined by the CWCR, to include any associated 
processing steps of a Schedule 3 chemical and intermediates. Only 
transient intermediates are exempted. This will ensure that the CWCR 
requirements will apply to Schedule 3 chemical production where 
Schedule 3 chemicals are below the applicable concentration threshold 
when reacted, but subsequently are concentrated above the threshold 
during processing.
    In addition, this proposed rule moves and revises Sec.  714.2 of 
the CWCR to Sec.  714.1 to clarify the procedures that must be followed 
when determining the range of Schedule 3 chemical production for your 
plant site during the previous calendar year. Specifically, this rule 
proposes to include a statement in Sec.  714.1(c)(1) of the CWCR to 
indicate that you should not aggregate amounts of production from 
plants on your plant site that did not individually produce a Schedule 
3 chemical in an amount exceeding the applicable declaration threshold 
(i.e., greater than 30 metric tons). In short, only the production 
amounts from those plants on your plant site that individually produced 
greater than 30 metric tons of a Schedule 3 chemical should be 
aggregated for the purpose of calculating the total amount of a 
Schedule 3 chemical produced at your plant site during the previous 
calendar year.
    The CWCR provisions on amended declarations and reports for 
Schedule 3 chemicals are proposed to be moved from Sec.  714.6 of the 
CWCR to Sec.  714.4 and amended by clarifying and specifying deadlines 
for: (i) The types of changes to information on Schedule 3 chemicals 
and activities in the Annual Declaration of Past Activities or the 
combined declaration and report that would require submission of an 
amended declaration to BIS; (ii) the types of changes to export or 
import information in the Annual Reports on Exports and Imports from 
undeclared facilities, trading companies and U.S. persons that would 
require submission of an amended report to BIS; and (iii) the types of 
changes to Schedule 3 chemical facility information (e.g., change in 
company name, address, declaration point of contact, ownership) that 
would require submission of an amended declaration or report to BIS. In 
addition, this proposed rule amends the CWCR to provide guidance in 
Sec.  714.4(d) concerning the submission of inspection-related 
amendments. Amended declarations, based on the final inspection report, 
would have to be submitted to BIS within 45 calendar days of the date 
of BIS's post inspection letter.
    This proposed rule revises adds Sec.  714.5 of the CWCR to provide 
guidance concerning the return of certain Schedule 3 declarations and 
reports without action. BIS would RWA any Schedule 3 declarations or 
reports that are determined not required by the CWCR. The returned 
declaration or report would be accompanied by a cover letter explaining 
why the declaration or report is being returned without action. BIS 
would retain a copy of the RWA letter, but would not maintain copies of 
any declarations or reports that were returned without action.

[[Page 70758]]

    Finally, the provisions in Sec.  714.5 and Table 1 to Sec.  714.5 
of the CWCR, which contain information on the deadlines for submitting 
Schedule 3 declarations, reports, and amendments to BIS, are proposed 
to be updated and moved to Sec.  714.6 and Supplement No. 2 to part 714 
of the CWCR, respectively.

I. Proposed Amendments to Part 715 of the CWCR (Activities Involving 
Unscheduled Discrete Organic Chemicals (UDOCs))

    This proposed rule amends Sec.  715.1(a)(1)(ii) (which describes 
the annual declaration requirements for the production of UDOCs 
containing the elements phosphorus, sulfur or fluorine, referred to as 
``PSF-chemicals'') to clarify how to calculate the production by 
synthesis of PSF chemicals at your plant site during the previous 
calendar year. Specifically, this proposed rule indicates that when 
determining the quantity of each PSF-chemical produced by a PSF plant 
on your plant site, you should only aggregate the PSF chemical 
production quantities from plants that individually produced a PSF 
chemical in an amount exceeding 30 metric tons. However, note that 
Sec.  715.1(a)(1)(i) indicates that when determining UDOC production by 
synthesis on your plant site, you should aggregate all quantities of 
UDOCs and PSF-chemicals produced regardless of the amount of PSF 
chemicals produced (i.e., aggregate any PSF chemicals produced).
    This proposed rule also revises Sec.  715.1(b)(1) of the CWCR by 
removing the initial declaration requirement and replacing it with the 
annual declaration requirement, and adding a new subsection that 
creates a new form called the ``No Changes Authorization'' form that 
may be submitted to BIS if there are no updates or changes to any 
information (other than the certifying official and dates signed and 
submitted) contained in the annual declaration on past activities 
previously submitted by your plant site. In addition, Sec.  
715.1(b)(1)(ii) of the CWCR, as proposed by this rule, would include a 
statement indicating that your plant site's UDOC activities would 
continue to be declared to the OPCW and that your plant site would 
remain subject to inspection (if applicable) based upon the data 
reported in your previous (i.e., most recent) annual declaration on 
past activities.
    The CWCR provisions on amended declarations for UDOCs are moved 
from Sec.  715.3 of the CWCR to Sec.  715.2 and revised by clarifying 
and specifying deadlines for: (i) The types of changes to information 
on UDOCs and activities in the Annual Declaration of Past Activities 
that would require submission of an amended declaration to BIS; and 
(ii) the types of changes to UDOC plant information (e.g., change in 
company name, address, declaration point of contact, ownership) that 
would require submission of an amended declaration to BIS. In addition, 
this proposed rule amends the CWCR to provide guidance in Sec.  
715.2(c) concerning the submission of inspection-related amendments. 
Amended declarations, based on the final inspection report, would have 
to be submitted to BIS within 45 calendar days of the receipt of BIS's 
post inspection letter.
    This proposed rule adds Sec.  715.3 of the CWCR to provide guidance 
concerning the return of certain UDOC declarations without action. BIS 
would RWA any UDOC declarations that are determined not required by the 
CWCR. The returned declaration would be accompanied by a cover letter 
explaining why the declaration is being returned without action. BIS 
would retain a copy of the RWA letter, but would not maintain copies of 
any declarations that were returned without action.
    Finally, the provisions in the CWCR that currently contain 
information on the deadlines for submitting UDOC declarations and 
amendments to BIS (Sec.  715.2 and Table 1 to Sec.  715.2), are 
proposed to be updated and moved to Sec.  715.4 and Supplement No. 3 to 
part 715 of the CWCR, respectively.

J. Proposed Amendments to Part 716 of the CWCR (Initial and Routine 
Inspections of Declared Facilities)

    As part of their obligation under the Convention, each State Party 
to the CWC is subject to inspection of its chemical facilities engaged 
in certain activities involving scheduled chemicals. Part 716 of the 
CWCR provides general information about the conduct of initial and 
routine inspections of declared facilities subject to inspection under 
CWC Verification Annex Part VI(E), Part VII(B), Part VIII(B), and Part 
IX(B).
    This proposed rule amends Sec.  716.2(a)(2)(i) of the CWCR to 
clarify that a facility agreement will be concluded by the U.S. 
National Authority (in coordination with BIS) with the OPCW before a 
new Schedule 1 facility, declared pursuant to Sec.  712.4 of the CWCR, 
can produce above threshold.
    This proposed rule amends Sec.  716.4(b)(1) of the CWCR to clarify 
the scope of inspections by specifying that inspections under part 716 
of the CWCR may include visual inspection of parts or areas of the 
plant site, in addition to the facilities or plants producing scheduled 
chemicals, in order to address any ambiguity that might arise during 
the inspection. In addition, photographs may be taken and formal 
interviews of facility personnel may be conducted.
    Section 716.4(b)(3) of the CWCR is amended to indicate that: (i) 
Technology subject to the ITAR shall not be divulged to the Inspection 
Team without U.S. Government authorization; and (ii) each facility that 
is inspected is responsible for identifying ITAR-controlled technology 
to the BIS Host Team, if known.
    This proposed rule also clarifies the pre-inspection briefing 
requirements described in Sec.  716.4(c) of the CWCR and the 
requirements in Sec.  716.4(e) of the CWCR concerning the availability 
of records. The U.S. facility must provide the Inspection Team and the 
U.S. Government Host Team with appropriate accommodations in which to 
review relevant documents and must ensure that all relevant information 
will be available to the teams. In addition, this rule provides that, 
whenever a facility does not have access to records for activities that 
took place under a previous ownership, the previous owner must make 
such records available to the Host Team (for provision to the 
Inspection Team).
    Section 716.7 of the CWCR, which describes requirements concerning 
the provision of samples by declared facilities, is revised to restrict 
the analysis of such samples to the verification of the absence of 
undeclared scheduled chemicals, unless otherwise agreed after 
consultation with the facility representative.
    Finally, this proposed rule adds a new Sec.  716.10 to clarify 
that, upon receipt of the final inspection report from the OPCW, BIS 
will send a copy of the final inspection report to the facility for its 
review. Facilities may submit comments on the final inspection report 
to BIS, and BIS will consider those comments, to the extent possible, 
when commenting on the final report. BIS will also send facilities a 
post-inspection letter with instructions based on decisions made during 
the inspection.

K. Proposed Amendments to Part 717 of the CWCR (Clarification of 
Possible Non-Compliance With the Convention; Challenge Inspection 
Procedures)

    Article IX of the CWC contains procedures for States Parties to 
clarify issues concerning compliance with the CWC. A State Party may 
request the OPCW to conduct an on-site challenge inspection of any 
facility or location in the territory or in any other place under

[[Page 70759]]

the jurisdiction or control of any other State Party. A challenge 
inspection may be conducted solely for the purpose of clarifying and 
resolving any questions concerning possible non-compliance with the 
CWC.
    This proposed rule amends Sec.  717.1(b) of the CWCR to clarify 
that BIS will attempt to contact a person or facility that is subject 
to the Article IX clarification procedures as early as practical prior 
to the issuance of an official written request for clarification and 
that such person or facility must provide the information required by 
BIS, pursuant to an Article IX clarification request, within five 
working days of the receipt of BIS's written request for clarification.
    In addition, this proposed rule amends Sec.  717.2 (Challenge 
Inspections) by adding a new provision in Sec.  717.2(b)(2)(ii) 
explaining that if consent is not granted within four hours of a 
facility's receipt of BIS's inspection notification, BIS will assist 
the Department of Justice in seeking a criminal warrant. A new 
provision, Sec.  717.2(d)(5), also has been added that describes the 
requirements concerning pre-inspection briefings for challenge 
inspections. Section 717.2(d)(5) will require that, prior to the 
commencement of the challenge inspection, facility representatives must 
provide the Inspection Team and Host Team with a pre-inspection 
briefing on the facility that will include the following: (i) The types 
of activities being conducted at the facility (e.g., business and 
manufacturing operations); (ii) safety procedures that must be followed 
during the inspection; and (iii) administrative and logistical 
arrangements necessary to facilitate the inspection.
    Section 717.3 of the CWCR, which describes requirements concerning 
the provision of samples by declared facilities, is revised to restrict 
analysis of samples to verifying the presence or absence of scheduled 
chemicals or appropriate degradation products, unless agreed otherwise.
    Finally, this proposed rule adds a new Sec.  717.5 to clarify that, 
upon receipt of the final inspection report from the OPCW, BIS will 
forward a copy to the facility, for comment, and will give 
consideration to the facility's comments prior to responding to the 
OPCW via the U.S. National Authority. In addition, proposed Sec.  717.5 
will provide that, upon receipt of the final inspection report, BIS 
will send the facility a post inspection letter detailing the issues 
that require follow-up action.

II. Summary of Public Comments on the December 30, 1999, Interim CWCR 
Rule

    On December 30, 1999, the Bureau of Industry and Security (BIS) 
published an interim rule in the Federal Register (64 FR 73744), with a 
request for comments, establishing the Chemical Weapons Convention 
Regulations (CWCR) to implement provisions of the Chemical Weapons 
Convention (CWC) and the Chemical Weapons Convention Implementation Act 
of 1998 (the Act or CWCIA) (22 U.S.C. 6701 et seq.), which was enacted 
on October 21, 1998. BIS received comments from five respondents. 
Following is a summary of those comments, along with BIS's responses.

A. Preamble to the December 30, 1999, Interim CWCR Rule

    Comment: One respondent is concerned about the statement in 64 FR 
73754, Part II (Public Comments on the Proposed Rule) of the preamble 
stating that ``the United States cannot withhold conclusion of a 
facility agreement with the OPCW because of facility concerns.'' The 
respondent suggests: (1) Because facility agreements are not required 
for Schedule 3 or unscheduled discrete organic chemical (UDOC) 
facilities, the United States could withhold conclusion of a facility 
agreement for such a facility because of facility concerns; (2) in the 
case of Schedule 1 or 2 facilities, the facility's legitimate concerns 
would become the U.S. Government's concerns; and (3) that these issues 
be addressed in the preamble.
    Response: The CWC does not provide for facility approval of the 
facility agreement for any facility agreement concluded between the 
United States and Organization for the Prohibition of Chemical Weapons 
(OPCW). This includes facility agreements for Schedule 3 and UDOC 
facilities. Although Schedule 3 and UDOC facility agreements will only 
be pursued at the facility's request, the same negotiating procedures 
will apply as with Schedule 1 and 2 facility agreements.
    The U.S. Government will provide facilities the opportunity to 
express concerns at several stages throughout the facility agreement 
process. However, as the facility agreement and inspection process is a 
U.S. government-led enterprise, it will ultimately be the decision of 
the U.S. Government whether to include reference to facility concerns 
and comments in the facility agreement.

B. Supplement No. 1 to Part 710--States Parties to the Convention

    Comment: One respondent is concerned that, unlike Hong Kong, which 
was identified as part of China, Taiwan's status has not been resolved. 
Due to the volume of legitimate trade (imports/exports) that occurs 
with Taiwan, the respondent believes Taiwan's status should be resolved 
and communicated. The respondent commented on this issue on the 
proposed rule, but BIS had not previously responded to this comment.
    Response: BIS responded to this respondent's concern in the 
interim-final rule dated December 30, 1999, under Section III Public 
Comments on Declarations and Reporting Forms and Handbooks. Supplement 
3 to the Declaration and Report Handbook was changed to add a new 
Destination Code ``TAI'' for Taiwan for declaring or reporting exports 
to or imports from Taiwan of Schedule 2 or Schedule 3 chemicals. 
Schedule 2 chemicals may no longer be exported to or imported from 
Taiwan, which is not a State Party. Schedule 3 chemicals require an 
End-Use Certificate for exports to Taiwan or a license is required. 
Additionally, Supplement 3 to the Declaration and Report Handbook 
indicates that transfers to Taiwan do not imply recognition of the 
Taiwan authorities or an official relationship with Taiwan.

C. Part 711--General Information Regarding Declaration, Reporting and 
Advance Notification Requirements

    Comment: Two respondents suggest that a new section (Sec.  711.7) 
be added to the final rule to specify the department and address for 
submittal of completed declarations and reports. Additionally, each 
declaration and report handbook should provide the same information in 
the ``Introduction'' section, and each declaration and report form 
should contain the information on where such form should be submitted.
    Response: BIS created a new Sec.  711.7 which provides the mailing 
address to which declarations and reports must be submitted. BIS also 
updated the Declaration and Report Handbook to include the applicable 
mailing address.

D. Sections 712.6, 713.7 and 714.6--Amended Declarations

    Comment: Three respondents request that BIS eliminate the 
requirement for an amended declaration for minor changes, such as a 
change in company name. The respondents assert that a change in company 
name is not substantive and has no impact on CWC verification 
activities, the object and

[[Page 70760]]

purpose of the CWC and/or plant site identification code, and results 
in a paperwork burden.
    Response: See BIS's response to the following comment.
    Comment: One respondent requests that deadlines be provided for 
submission of amended declarations. Currently the regulations only 
require that companies submit amended declarations. Given that accurate 
declarations are important for on-site verification, the respondent 
contends that amendments should be submitted within 90 days of the 
event that triggered a requirement for an amended declaration, the same 
amount of time given for annual declarations following the close of a 
calendar year.
    Response: Based upon the experience gained in implementing the CWC, 
BIS has determined that certain amended information is necessary to 
assist in the timely processing of inspection notifications and in 
effective communication with company personnel subject to inspection. 
As currently written, the CWCR do not adequately explain the amendment 
procedures required of companies, or the reasons why BIS requires that 
information. Accordingly, BIS has clarified the requirements and 
timelines for submitting amended declarations. BIS has established 
different timelines for submitting an amendment based upon the type of 
change that is being made to a declaration and the time it will take 
for BIS to receive and process data in order to submit relevant changes 
to the OPCW. Any company changes to declaration or report information 
dealing with the chemicals, quantities, activities, end-use purposes, 
additions, deletions, or similar changes that are submitted, via the 
U.S. National Authority, to the OPCW must be received by BIS within 15 
days of the change in information. Changes to internal company 
information that is not submitted to the OPCW, such as a declaration or 
inspection point of contact, telephone numbers, or changes in company 
ownership, must be received by BIS within 30 days of the change to the 
information. Additionally, amendments required based upon an inspection 
finding must be submitted to BIS within 45 days after the company is 
notified of the required amendments. Finally, in lieu of submitting an 
amended declaration or report form, you may submit your amended 
information to BIS in a letter on company letterhead.

E. Section 713.3--Annual Declaration Requirements for Schedule 2 Plant 
Sites

    Comment: Two respondents state that the interim rule is unclear on 
the requirements for annual declarations on past activities involving 
Schedule 2 chemicals. Specifically, the note to Sec.  713.3(a)(1)(ii) 
creates confusion by basing the annual declaration requirement on three 
years of activity and conflicts with the CWC's and the CWCIA's time 
frame for annual declarations. Moreover, the CWCIA and CWC require 
annual declarations for a single year and not a series of years as 
presented in the note to Sec.  713.3(a)(1)(ii). Since Section 401 of 
the CWCIA commits the U.S. government to require only the minimal 
information necessary to satisfy the requirements of the CWC and the 
CWCIA, these respondents oppose a three-year time frame for purposes of 
reporting on annual activities.
    Response: BIS is upholding the CWCIA's commitment to require only 
minimum information necessary to satisfy the requirements of the 
treaty. The CWCR only require an annual Schedule 2 declaration on past 
activities for the previous calendar year. This declaration requirement 
is based upon the activities that occurred at the plant site during 
``any of the previous three calendar years'' as provided in the note to 
Sec.  713.2(a)(1)(i)(B). BIS refers to this CWC requirement as the 
``three-year lookback.''

F. Section 713.5--Advance Declaration Requirements for Additionally 
Planned Production, Processing, or Consumption of Schedule 2 Chemicals

    Comment: One respondent notes that this section states that 
facilities are allowed, but not required, to submit an amended 
declaration if they are merely listing additional countries for export. 
However, then the section goes on to state ``not to exceed 10 
countries.'' The respondent proposes that these provisions be 
clarified, perhaps in the preamble, to state whether this means a limit 
of ten additional countries or ten total countries, and how this 
amendment should be done.
    Response: New Sec.  713.4 (previously Sec.  713.5) requires 
submission of a Declaration on Additionally Planned Activities if any 
additional activity is planned after submission of the Annual 
Declaration on Anticipated Activities. This requirement is not an 
amendment, but rather is a specific type of declaration that must be 
submitted to the OPCW. Section 713.4 has been changed in this proposed 
rule to eliminate the limit on the total number of destinations that 
may be declared in both the Annual Declaration on Anticipated 
Activities and the Declaration on Additionally Planned Activities, as 
well as for question 2-3.7, on Form 2-3, on actual past exports. The 
forms required for submitting a Declaration on Additionally Planned 
Activities are identified in the new Supplement 2 to part 713 of the 
CWCR.

G. Sections 714.2 and 715.1--Annual Declaration Requirements

    Comment: One respondent suggests that in some portions of the 
regulations it is not clear whether facilities are expected to 
aggregate quantities of chemicals among all the plants at the same 
plant site or whether each plant should be considered individually. 
This respondent proposes revisions to Sec. Sec.  714.2(a)(l)(i) and 
(ii), 714.2(b)(l), (2), and (3), and 715.1(a)(l)(ii) that use the model 
in Sec.  713.3(c)(1)(i) (``Do not aggregate amounts of production, 
processing or consumption among plants on the plant site that did not 
individually produce, process or consume a Schedule 2 chemical in 
amounts greater than the applicable threshold'').
    Response: The model paragraph identified by the respondent, new 
Sec.  713.2(c)(1)(i) (previously Sec.  713.3(c)(1)(i)), provides the 
specific requirements for ``quantities to be declared'' in a Schedule 2 
declaration by determining if a Schedule 2 plant's activities must be 
aggregated with the quantities of other plants' activities that may 
have exceeded the specific declaration threshold. Similarly, Sec.  
714.1(c)(1) (previously Sec.  714.2(c)(1)) provides the same 
requirements for ``quantities to be declared'' for a Schedule 3 plant 
thereby requiring that ``* * * you must aggregate the production 
quantities of all plants on the plant site that produced the Schedule 3 
chemical in amounts greater than 30 metric tons.'' For purposes of 
clarity, however, BIS has added the following sentence to Sec.  
714.1(c)(1), which states: ``Do not aggregate amounts of production 
from plants on the plant site that did not individually produce a 
Schedule 3 chemical in amounts greater than 30 metric tons.'' BIS also 
has clarified the requirements for unscheduled discrete organic 
chemicals in a note to Sec.  715.1(a)(1)(ii) to state: ``In calculating 
the aggregate production quantity of each individual PSF chemical 
produced by a PSF plant, do not include production of a PSF chemical 
that was produced in quantities less than 30 metric tons. Include only 
production quantities from those PSF plants that produced more than 30 
metric tons of an individual PSF chemical.''

[[Page 70761]]

H. Section 715.1--Annual Declaration Requirements for Unscheduled 
Discrete Organic Chemicals (UDOCs)

    Comment: Two respondents interpret the exemption of UDOCs produced 
by synthesis that are ingredients or byproducts in foods and are 
designed for consumption by humans and/or animals to include dietary 
supplements, as defined under Section 201 of the Federal Food, Drug and 
Cosmetic Act (FFDCA), 21 U.S.C. Section 321. One respondent encouraged 
BIS to reference the FFDCA in interpreting Sec.  715.1(a)(2)(ii)(E). 
Additionally, in response to BIS's request for public comment on the 
impact of the CWCR on facilities that produce UDOCs solely as consumer 
goods packaged for retail sale, two respondents recommend that BIS 
exempt facilities that process edible oils and edible oil byproducts 
solely for use in packaged consumer goods other than those intended for 
consumption by humans or animals, such as soaps, shampoos, detergents 
and consumer personal care products. Respondents argue that the 
concentration, distribution and reaction of these constituents vary 
from lot to lot, resulting in an unnecessary and costly analysis of 
mixtures made in-house expressly for incorporation into consumer 
products. Respondents argue that reporting of basic processing of 
edible oils operations is not consistent with the intent and purposes 
of the CWC. Edible oils are not discrete chemical entities and trying 
to ``force-fit'' them into the CWC's definition of UDOCs creates 
additional workplace burdens on facility personnel and forces changes 
in plant equipment and operations. Given the noticeable absence of any 
direct threat to the object and purpose of the Convention, these 
respondents recommend that BIS adopt an exemption for facilities 
involved exclusively in the processing of indiscrete edible oils for 
use in packaged consumer products. They argue in favor of a similar 
exemption for facilities which conduct acid-base reactions as a normal 
consumer product formulation. This type of reaction is pervasive in 
product formulation, is formulation specific, and is not currently 
quantified by most manufacturers. Therefore, according to respondents, 
quantifying this type of reaction would be technically difficult, 
costly and provide little information pertinent to the scope and 
objectives of the CWC.
    Response: BIS will review, on a case-by-case basis, requests for 
chemical determinations of dietary supplements, edible oil products, 
and consumer products other than those intended for consumption by 
humans and animals. BIS has determined that only undifferentiated 
edible oils that are not discrete organic chemicals are exempt from the 
requirements of part 715 of the CWCR. Discrete organic chemicals are 
defined in part 710 of the CWCR.
    Comment: One respondent suggests that the language for the 
exemption for polymers and oligomers in Sec.  715.1(a)(2)(ii)(A) is 
confusing and that it need only say, ``Polymers and oligomers 
consisting of two or more repeating units.''
    Response: BIS agrees with the recommendation and has changed 
715.1(a)(2)(ii)(A) accordingly. BIS notes, however, that this change 
does not have any impact on those polymers and oligomers that are 
exempted.

I. Section 716.1--General Information on the Conduct of Initial and 
Routine Inspections

    Comment: One respondent suggests that the list of responsibilities 
of BIS during inspections include: Assisting in the protection of 
confidential business information; consultation with facility 
representatives regarding facility concerns; serving as intermediary 
between the facility and the Inspection Team; and representing the 
interests of the facility, where appropriate.
    Response: Part 716.1 is purposefully broad to allow for 
accommodation of the needs of the U.S. Government, the Inspection Team, 
and the facility during inspections.

J. Section 716.3--Consent to Inspections; Warrants for Inspections

    Comment: One respondent states that the interim rule fails to 
expressly incorporate the following language from the CWCIA: ``The 
owner or the operator, occupant, or agent in charge of the premises to 
be inspected may withhold consent for any reason or no reason.'' In 
comments to the interim rule, as captured in the preamble (64 FR 
73755), it was suggested that this be incorporated in Sec.  716.3.
    Response: The facility's right to withhold consent is included in 
the general reference to the CWCIA in 716.3(b).
    Comment: Further, this respondent states that the interim rule 
should be amended to state that the owner, occupant, or agent in charge 
of the premises to be inspected may withdraw consent at any time and 
that withdrawal of consent will not be a violation under Sec.  
719.2(a)(1) of the CWCR (as stated in the 64 FR 73755).
    Response: The CWCIA explicitly states that consent may be withheld 
and therefore no further regulation amendment is required. BIS does not 
see any need to further define who may withhold consent.
    Comment: One respondent acknowledges that, if time passes without a 
facility expressing consent to an inspection, eventually BIS will need 
to make preparations for a warrant. However, there may be times when 
the facility voices its consent after BIS has initiated those 
preparations. BIS should clarify that it will not continue to seek (or 
serve) a warrant if the facility has consented to inspection and has 
not withdrawn its consent. The respondent suggests that this 
clarification does not require any change to the wording of the 
regulations, but it would be sufficient to provide a response to the 
public comment in the preamble of the final regulations.
    Response: Whether BIS follows through with a warrant exercise is 
dependent upon at which stage a facility consents after not having 
consented to an inspection. If, for example, a facility has not 
consented and BIS initiates the warrant process, and is before a 
magistrate to obtain the warrant when a facility consents, it is highly 
likely that at that stage, BIS will obtain the warrant and the 
inspection will be continued under its terms. In certain instances, it 
may be more efficient for BIS to follow through with obtaining a 
warrant, and therefore, such circumstances will be reviewed on a case 
by case basis.
    Comment: One respondent states that the requirement that the person 
who gives consent to an inspection ``represents that he or she has 
authority to make this decision for the facility'' serves no purpose 
and proposes that the applicable Declaration and/or Reporting forms 
have a place to designate (by name or job title) persons who are 
authorized to consent to inspections.
    Response: As with a declaration made to BIS pursuant to the CWCR, 
an agreement to consent must be an official decision from the facility. 
Sections 304(b) and 305(a) of the CWCIA require that the owner, 
operator, occupant, or agent in charge of a facility be sent the notice 
of an inspection, and advise the U.S. Government of whether the 
facility consents to the inspection. It is for that reason that BIS 
requires that consent be made by a person with authority to speak on 
behalf of the company. In practice, BIS sends a written notice of 
inspection, including a request for consent via facsimile to the 
inspection point of contact (I-POC) listed on the declaration. If for 
some reason, the I-POC does not have authority to grant consent on 
behalf of the company, he or she would escalate the request to the

[[Page 70762]]

appropriate official. Because this procedure is in place, there is no 
need to change the existing CWCR.

K. Section 716.4--Scope and Conduct of Inspections

    Comment: One respondent states that when an owner, occupant or 
agent in charge of the premises consents to an initial or routine 
inspection, he or she is not consenting to provide access to, and has 
the right to deny access to: (1) Research and development laboratories; 
(2) pilot plants; and (3) non-relevant production units, including, but 
not limited to, plants and production units that are exempted from UDOC 
declaration requirements and plants and production units producing 
chemicals by fermentation, extraction, purification, distillation, and/
or filtration. The respondent references a presentation made by the 
U.S. Arms Control and Disarmament Agency to industry in 1993, during 
which these assurances were made under discussions on ``industry 
rights'' and ``declared plants.''
    Response: An inspected facility at any point may withhold consent 
during the inspection. Such a withholding of consent would require the 
U.S. Government to obtain a warrant to continue the inspection. 
However, when consent is granted to conduct the inspection, the 
boundary of that consent is understood to be the declared facility or 
plant site, which, in some cases, includes common infrastructure that 
support both the declared plant and other activities located within the 
definition of the plant site. BIS will consult with plant sites to 
determine the access appropriate to comply with the mandate of the 
inspection while protecting confidential business information to the 
extent practicable. However, the BIS Host Team Leader has the 
responsibility under the CWCR (Sec.  716.4(b)(2)) to determine the 
appropriate access.
    Comment: One respondent suggests that Sec.  716.4(b)(2) should 
either: (1) Be deleted because the paragraph serves no purpose when 
consent is not given or is withdrawn; or (2) revised to state that 
inspection activities apply only to areas of a facility subject to 
inspection and that consent does not constitute a waiver of rights 
provided by the Act or other law.
    Response: Section 716.4(b)(2) is appropriately included to define 
the scope of consent and to clarify that the areas of the facility 
subject to inspection pursuant to consent will be consistent with those 
subject to inspection pursuant to Section 305 of the CWCIA. No further 
waiver of rights provided by the CWCIA or law is implied by the consent 
provisions. Existing language to that effect is unnecessary and has 
therefore not been included.
    Comment: One respondent suggests that Sec.  716.4(c) (pre-
inspection briefing (PIB)) should be revised to make the following 
items mandatory topics: (1) Plant, or plant site, health and safety and 
alarms; (2) protection of confidential business information; and (3) 
proposed inspection plan. The respondent also suggests that the term 
``process flow'' be a ``simplified block flow diagram of the process,'' 
and that Sec.  716.4(c)(1)(vii) should say ``Units or plants specific 
to declared operations.'' This respondent also suggests that BIS make a 
template for the PIB available on the Internet to let facilities do 
advance preparation.
    Response: The regulations for PIB requirements have been amended to 
include plant site health and safety issues and requirements, and 
associated alarm systems in existing subparagraph 716.4(c)(1)(i). The 
CWCR already include as an optional topic discussion of confidential 
business information during pre-inspection briefings in 
716.4(c)(2)(iii). Inclusion of this topic is at the discretion of the 
plant site and some plant sites may not wish to identify confidential 
business information. Therefore, it is not necessary to make this topic 
mandatory. As suggested by the respondent, the requirements of 
716.4(c)(1)(vi) have been amended to require presentation of a block 
flow diagram or simplified process flow diagram as opposed to process 
flow in order to accurately reflect the intended detail of such 
presentations. Also, as suggested by the respondent, the requirements 
of 716.4(c)(1)(vii) have been amended to require presentation of units 
and plants specific to declared operations to more accurately reflect 
the intended scope of such presentation. The discussion of a proposed 
inspection plan remains optional in Sec.  716.4(c)(2)(vi) (previously 
Sec.  716.4(c)(2)(vii)) because it is not required by the CWC. BIS has 
developed a PIB template for downloading from its Web site at 
www.cwc.gov.
    Comment: One respondent suggests that Sec.  716.4(e) (Records 
review) is unnecessary because part 721 already deals with 
recordkeeping and should be deleted or substantially edited. If edited, 
the areas of concern are: (1) The idea that records must be provided 
``on the inspection site'' as ``paper copies or via electronic remote 
access by computer'' is inconsistent with part 721 in several 
respects--``paper copies'' implies duplicates, providing only two 
options (paper or electronic) disqualifies other media such as 
microfilm or microfiche, ``electronic remote access'' seems to forbid 
local access by computer, and records must be provided ``on the 
inspection site'' which may distinguish it from the plant site; and (2) 
the wording says the Inspection Team and the Host Team leader may agree 
on other formats for records, not providing for consultation with the 
site.
    Response: Section 716.4(e) is addressing an issue separate from the 
recordkeeping provisions of part 721. Specifically, Sec.  716.4(e) is 
referring to the records to be made available during an inspection of a 
facility, and the ease with which such records may be made available. 
The recordkeeping requirements of part 721 of the CWCR separately 
address the obligation on how records should be maintained.

L. Section 716.5--Notification, Duration and Frequency of Inspections

    Comment: One respondent suggests that, in order to ensure that 
facilities can express consent within four hours, inspection 
notification via telephone is also necessary to cover possible 
contingencies. To implement this, revisions to Sec.  716.5(a)(l)(i) and 
the accompanying table are proposed.
    Response: BIS generally provides inspection notification to 
facility inspection points of contact via telephone. However, we send 
written notification of inspection with the request for consent that is 
required by the CWCIA via facsimile. Because BIS has these notification 
procedures in place, there is no need to change the existing CWCR.
    Comment: One respondent stated that, although Sec. Sec.  
716.5(a)(1)(i)(D) and 717.2(b)(2)(i)(D) state that a written inspection 
notice will tell the ``names and titles'' of each member of the 
Inspection Team, it would be useful to also know the nationality of 
each inspector. The respondent notes that this will perhaps become less 
important if the State Department revises the ITAR requirements. 
Facilities face the dilemma of possibly having to deny certain access 
in order to comply with ITAR requirements, although the CWC and the Act 
require sites to allow the Inspection Team into their facilities. Sites 
will need that information to make informed decisions.
    Response: BIS forwards facilities the official OPCW inspection 
notification as part of its Host Team Notification requesting consent. 
The OPCW notification only contains inspector names and titles, which 
fulfills the relevant requirement under Sec.  304(b)(3)(A)(iv) of the 
CWCIA. BIS provides facilities with the nationality

[[Page 70763]]

of inspectors during Advance Team activities upon request.
    If technical data subject to the ITAR is present on an inspection 
site, its disclosure to any foreign person, regardless of nationality, 
would require a license from the Department of State. Since the 
Department of State has not instituted an ITAR license exception for 
purposes of CWC inspections, the policy of BIS is to deny access to any 
item or technology subject to ITAR to any inspector absent U.S. 
Government authorization (see Sec.  716.4(b)(3). Therefore, no change 
has been made to the existing CWCR.

M. Sections 716.7 and 717.3--Samples

    Comment: One respondent states that the regulations are worded in a 
manner that could result in unfair ``double penalties'' for a single 
violation. For example, a failure to comply with the State Department's 
regulations on samples would also constitute a violation of BIS's 
regulations which require compliance with the State Department's 
regulations. The respondent recommends that these provisions simply 
mention that the State Department's regulations address the topic of 
samples, without the requirement of compliance.
    Response: Sections 716.7 and 717.3 serve as cross-references to the 
applicable sampling provisions in the State Department regulations. 
They are properly included in the CWCR to identify the existence of 
obligations under the State Department regulations. Since they 
reference the State Department regulations, only the State Department 
penalties would apply--there is no risk of duplicative violations.

N. Sections 716.9 and 717.4--Report of Inspection-Related Costs

    Comment: One respondent proposed that these sections be modified to 
allow facilities to report the cost of preparing the report on 
inspection-related costs, in addition to the other required information 
for the submission. This respondent contends that BIS could have met 
Congress' needs in a manner that would have imposed fewer additional 
costs to facilities in compiling the information for the repot. The 
respondent insists that BIS should have provided a mechanism through 
which facilities could supply Congress information related to the costs 
incurred in preparing the reference report.
    Response: The provisions of the CWCIA require the Department of 
Commerce to submit a report to Congress on the costs incurred by U.S. 
industry as a result of CWC inspections. In order to compile this 
report, BIS has required companies to submit information related to the 
costs incurred from the conduct of a CWC inspection. In the interest of 
reducing the burden of reporting on companies, the CWCR requests that 
only the minimum amount of information necessary to show these costs be 
submitted to BIS, which ordinarily is only an accounting of the total 
cost incurred by the facility as a result of the inspection. Companies 
can interpret this requirement in many ways, and they may include in 
this calculation all costs they feel are relevant to the inspection, 
which conceivably could include the costs associated with preparing the 
report. While BIS encourages facilities to provide additional detail as 
necessary, information beyond that relating to the costs of the 
inspection is not required by the CWCIA, and therefore, BIS is not 
obligated to include that information in its submission to Congress. 
However, BIS will consider all information submitted by companies when 
it prepares the cost report for submission.
    Comment: One respondent suggested that BIS provide a written 
reminder a week or two after an inspection so that the facility would 
not forget to prepare the required cost report.
    Response: Under the current regulations, BIS sends the Inspection 
Point of Contact a post-inspection letter (see new Sec. Sec.  716.10 
and 717.5). This letter is sent upon receipt of the Final Inspection 
Report from the Organization for the Prohibition of Chemical Weapons. 
The letter reminds the company of any declaration changes suggested and 
that its report of inspection-related costs is required. As a matter of 
policy, the companies are also contacted again if the report on 
inspection-related costs is not received within 90 days. Companies may 
also prepare the report during the inspection and provide it to the BIS 
Host Team Leader prior to BIS's departure from the site.

O. Section 717.1--Clarification Procedures; Challenge Inspection 
Requests Pursuant to Article IX of the Convention

    Comment: One respondent stated that a domestic company should have 
more than five working days to respond to an information request. 
Because the Convention requires the U.S. government to respond to the 
requesting State Party within ten days, the respondent proposes that 
there be advance communication to the extent practicable, so that the 
formal information request does not come as a surprise and 
documentation collection can begin in advance.
    Response: BIS will contact any domestic company as early as 
practical in the clarification process (see amended Sec.  717.1(b)). 
Section 717.1 applies to official requests made by BIS. All official 
requests require a compliance deadline. Companies have five days to 
respond to a request for information. This gives the U.S. Government 
time to review and possibly clarify with the facility any additional 
information that may need to be provided.

P. Section 717.2--Challenge Inspections

    Comment: One respondent states that BIS should clarify that, if 
consent is granted after the government has begun seeking, or has 
obtained, a criminal warrant, the warrant will not be served while the 
consent remains in effect.
    Response: As stated above, whether BIS follows through with a 
warrant exercise is dependent upon at which stage a facility consents 
after having not consented to an inspection. In certain instances, it 
may be more efficient for BIS to follow through with obtaining a 
warrant, and the circumstances of each case will be reviewed on a case 
by case basis.
    Comment: One respondent states that notification of a challenge 
inspection should be given in every case, not simply ``if such 
notification is deemed appropriate.''
    Response: Section 304(b)(2) of the CWCIA provides the circumstances 
under which notice is provided for a challenge inspection. 
Specifically, it states that ``[n]otice for a challenge inspection 
shall be provided at any appropriate time determined by the United 
States National Authority.'' Therefore, it is true that a notice is 
required for routine inspections, but provision of notice of a 
challenge inspection is done at the decision of the USNA. Therefore, 
provision of notice in the instance of a challenge inspection is 
dependent upon a decision of the USNA. However, BIS recognizes that the 
CWCR is unclear on the timeline for notice in a challenge inspection, 
and therefore, Section 717.2(b) has been amended to include the phrase: 
``if possible, and when such notification is deemed appropriate.''
    Comment: One respondent questioned the language of Sec.  
717.2(b)(2)(ii), indicating that the U.S. Government may make an 
``advance team'' available to assist with preparation for a challenge 
inspection. The concern is that the Act provides that (in the absence 
of consent) challenge inspections will be conducted under a criminal 
warrant. Under this situation, it is not clear how the Advance Team 
should be treated. The

[[Page 70764]]

respondent requests that BIS clarify whether the U.S. Government will 
provide any immunity or other protection to enable sites to work freely 
with an Advance Team in conjunction with a challenge inspection.
    Response: No change to the CWCR is required. Although BIS may 
provide an Advance Team for those inspections, it is not obliged to do 
so. Given the broad range of possible circumstances covered by the 
challenge provisions of the CWC, it may not always be appropriate for 
BIS to provide Advance Team services. Immunity or other comparable 
protection is not appropriate in the inspection contest and has 
therefore not been included.
    Comment: One respondent notes that BIS added provisions in a number 
of locations saying the Host Team will consult with the site before 
making certain decisions about inspections. However, it appears that 
Sec.  717.2(c) does not provide for consultation with the site before 
agreeing to extend a challenge inspection. This respondent feels this 
section should be revised to provide for consultation.
    Response: The respondent is correct that in certain sections of the 
CWCR, there is explicit provision for BIS to consult with facility 
representatives, when appropriate, but that in the challenge inspection 
context, there are no similar provisions. Since this is a U.S. 
Government-led inspection, BIS has the decision-making authority to 
extend a challenge inspection and is under no obligation to consult 
with the facility before extending the timeline for a challenge 
inspection. BIS is acting on behalf of the U.S. Government in 
fulfilling its obligations under the CWC for the conduct of a challenge 
inspection. It is therefore the responsibility of BIS to take whatever 
measures are necessary, and reasonable, to ensure that the inspection 
is completed and the Inspection Team meets the goals of their mandate. 
BIS will make every effort to consult with facility representatives and 
to take facility concerns under consideration when making decisions 
during inspections.

Q. Section 718.1--Definitions

    Comment: Two respondents state that the definition of Confidential 
Business Information (CBI) in Sec.  718.1 of the interim rule must be 
revised to conform to the much broader definition of CBI set forth in 
Section 103(g) of the CWCIA (i.e., that no inspection shall extend to 
financial data, sales and marketing data, pricing data, personnel data, 
research data, patent data, data maintained for compliance with 
environmental or occupational health and safety regulations, or 
personnel and vehicles entering and personnel and personal passenger 
vehicles exiting the facility).
    Response: CBI, as defined in Sec.  718.1, follows the definition in 
the CWCIA, and therefore that paragraph requires no revision. Not only 
are the relevant sections of the Act referenced in Sec.  718.1, but the 
definition of CBI is also included in that paragraph.
    Comment: In Sec.  718.1(h), one respondent notes a reference to 
``personnel passenger vehicles'' (64 FR 73803). The term used in the 
CWC Verification Annex is ``personal passenger vehicles.'' The CWCR 
should be changed to reflect the terminology used in the CWC.
    Response: BIS notes the difference in terms and agrees with the 
respondent. Accordingly, Sec.  718.1(h) has been amended to follow the 
CWC, which reads, in Part X, paragraph 30 of the Verification Annex, 
``* * * personnel and personal passenger vehicles * * *.''

R. Section 718.2--Identification of Confidential Business Information

    Comment: One respondent suggests that there is a gap in this 
section because some confidential business information (CBI) may be 
disclosed directly to an international Inspection Team, rather than 
through the Host Team (e.g., visual access or employee interview). The 
respondent suggests that a new paragraph be added as follows: ``(e) In 
any situation not addressed by paragraphs (b) through (d) of this 
section, where confidential business information is disclosed to the 
Inspection Team, the facility shall identify to the Host Team that the 
information is confidential. The Host Team shall then take appropriate 
steps to inform the Inspection Team of its obligation to safeguard the 
information from further disclosure.''
    Response: Because the Host Team is the U.S. Government 
representative at the U.S. Government-led inspection, it will act as 
the intermediary between the facility and the Inspection Team. As such, 
any discussion, or any transfer of information, orally or in writing, 
should be reviewed and effectively cleared by the Host Team before 
being relayed to the Inspection Team. CBI relevant to inspection aims 
that is known to the facility must be identified to the Host Team, at 
best, before the inspection begins, or at the least, before disclosure 
to Inspection Teams. It is imperative that facilities and facility 
representatives be fully versed in the location of physical CBI on the 
facility and the presence of CBI in records or other documentation that 
could be reviewed by the Inspection Team. BIS does not anticipate, or 
wish to promote, the possibility of disclosure of CBI to the Inspection 
Team without the Host Team's knowledge, and therefore has not codified 
procedures in the CWCR whereby a facility would have opportunity to 
unilaterally release information to the Inspection Team. Nonetheless, 
in the unlikely event of CBI disclosure directly to the Inspection Team 
without prior disclosure to, or discussion with, the Host Team, 
facility representatives must immediately inform the Host Team so that 
appropriate measures contemplated by Sec.  718.2(d) may be taken.
    Comment: One respondent notes that the proposed rule indicates that 
companies could not shroud irrelevant confidential information unless 
the Host Team agreed to allow it, but that, in response to comments, 
BIS changed the language of Sec.  718.2(d)(1) to say irrelevant 
confidential information may be shrouded ``as determined by'' the Host 
Team. The respondent argues that this change makes no real difference 
as it does not provide a role for the facility to express its 
legitimate concerns. Although the right to shroud irrelevant 
confidential information is a right granted to the State Party, the 
loss of confidential information is a harm to the facility. In order to 
be consistent with changes made elsewhere in the regulations, the 
respondent suggests that BIS provide for consultation with the facility 
before the Host Team makes its determination.
    Response: BIS Host Teams are cognizant of facility concerns about 
protection of CBI and will work with facilities to protect the release 
of CBI that is unrelated to the inspection as much as possible. 
However, there are instances where release of CBI to the Inspection 
Team is unavoidable, and under those circumstances, the Inspection Team 
will be advised that the information is CBI and that it should be 
protected under the CWC's confidentiality provisions. Shrouding is one 
of many means through which CBI is protected, but it is not always the 
most reasonable means of protection, particularly considering the 
obvious nature of the shroud. Frequently, there are other alternatives 
employed to protect release of CBI to the Inspection Team, such as 
revising their inspection route through the facility, or taping over 
the words or symbols on tanks or drums. The BIS Host Team will work 
with the company in deciding the most appropriate method for protecting 
unrelated CBI, but ultimately, since this is a U.S. Government-led 
inspection, the Host Team will be the final decision-

[[Page 70765]]

making authority on which protective method will be employed. Since 
prior consultation with the company, as appropriate, will generally be 
pursued, the recommended change to the regulatory text has not been 
made.

S. Section 718.3--Disclosure of Confidential Business Information

    Comment: One respondent states that, although Sec.  718.3(c)(4)(ii) 
provides for notice of disclosure to the owner of the confidential 
business information with certain exceptions, notice is of limited 
value unless the owner has an opportunity to be heard. Section 
404(c)(2)(B) of the Act expressly provides a right to a hearing to 
object to disclosure and requires the United States National Authority 
(USNA) to provide its decision no later than 10 days before the 
scheduled or rescheduled date for the disclosure. However, the CWCR do 
not discuss this. Respondents suggest revising Sec.  718.3(c)(4) to 
specify the right to a hearing, how and when to request a hearing, what 
the hearing generally will consist of, how and when the decision will 
be communicated, and what avenue of redress is available to the owner 
of the information if the USNA decides to disclose the information.
    Response: The respondent has referenced the hearing requirements 
that relate to the domestic release of company CBI that is in the 
possession and control of BIS. Under the referenced circumstances 
(e.g., pending investigation, request of Congress, national interest, 
etc.) where CBI may be released, the company has a right to a hearing 
on the record prior to the release of such information. This hearing 
exercise is separate and distinct from the release of CBI during 
facility inspections. There is no right to a hearing during the 
inspection process, which is why all CBI must be identified to the Host 
Team prior to the start of the inspection in order for BIS to take 
measures to control access to CBI or prevent its release.
    Comment: One respondent notes that because Sec. Sec.  718.2(c) and 
718.3(b) state that certain information is not subject to the CBI 
provisions of the Act, that this reference will therefore be 
misunderstood to mean that the information cannot be protected as 
confidential business information. Other provisions in the CWCR (such 
as Sec. Sec.  718.3(b)(1) and (2)) indicate that this was not BIS's 
intent and that other laws will protect the information and provide the 
procedures to be followed. The respondent suggests that BIS clarify 
Sec. Sec.  718.2(c) and 718.3(b) to say that the information, although 
not subject to the CBI provisions of the Act, may be protected under 
other laws.
    Response: The reference to protection by other laws is already 
included in the text of the CWCR in Sec.  718.3(a). That section 
specifically states that confidentiality of all information will be 
maintained consistent with the Act and the other listed statutes and 
regulations. There is no need to repeat this reference elsewhere in 
part 718.

T. Section 719.3--Violations of the IEEPA Subject to Judicial 
Enforcement Proceedings

    Comment: One respondent noted that the 45 calendar day reference in 
Sec.  719.3(a)(l)(iv) could be taken literally to allow for advance 
notification on only a single day. The respondent proposes that the 
wording of Sec.  719.3 be revised to provide that the notice is 
required ``not less than 45 calendar days'' before the import.
    Response: As suggested by the respondent, Sec.  719.3(a)(1)(iv) has 
been amended to provide that notice is required ``not less than'' 45 
calendar days before the import.

U. Section 719.6--Request for Hearing and Answer

    Comment: One respondent is concerned that this section allows only 
fifteen days from ``the date of the Notice of Violation and Assessment 
(NOVA)'' to request a hearing. If the regulations do not provide 
sufficient time, the site's attorney will have to file a request for 
hearing automatically, as a precautionary measure, even though 
ultimately the company may decide that no hearing was necessary. As the 
fifteen-day period is specified by statute, the respondent suggests one 
of the following: (a) Interpret the word ``days'' to mean ``working 
days'' to address weekends and holidays; (b) interpret the term ``date 
of the NOVA'' to mean the date of receipt of the NOVA to address any 
delays in the mail; or (c) commit to provide a telephone call to let 
the company know that a NOVA is coming, with a follow-up facsimile if 
requested.
    Response: BIS agrees with the respondent regarding the 15-day time 
period and the ``date'' of the NOVA. Accordingly, BIS has amended Sec.  
719.6(a) to state ``15 business days'' and has inserted the words 
``from the postmarked date of the NOVA'' in the relevant sections of 
the CWCR. As to the respondent's suggestion in (c), BIS cannot 
guarantee a phone-call in these circumstances, but will note that the 
recipients should contact BIS in the event an extension is required for 
response time to these provisions.

V. Section 719.8--Filing and Service of Papers Other Than the NOVA

    Comment: One respondent suggests that the idea that all papers must 
be served ``simultaneously'' with their filing is not achievable and 
that the word ``simultaneously'' be changed to ``contemporaneously.''
    Response: Simultaneously and contemporaneously are interpreted by 
BIS as synonyms. BIS expects all motions and supporting documentation 
be served at the same time, and therefore, BIS requires simultaneous 
filing. This represents normal legal procedure.

W. Section 719.20--Record for Decision

    Comment: One respondent notes that this section allows the 
Administrative Law Judge (ALJ), after an enforcement case, to transfer 
documents from the closed portion to the open portion of the record if 
the information becomes unrestricted through the passage of time 
without expressly providing notice or an opportunity for the owner of 
the information to be heard. In the preamble to the interim rule, BIS 
defended this by saying that the ALJ would necessarily make some sort 
of inquiry before transferring the records. The respondent is concerned 
that the ALJ may not have all the necessary information without 
allowing for notice and an opportunity to be heard.
    Response: BIS cannot impose additional requirements upon the ALJ 
other than those authorized by the Act. It is unnecessary to include 
additional direction for the ALJ in the CWCR, unless such direction is 
uniquely related to the CWC implementation process. The issue raised by 
the respondent is not CWC-specific, and therefore does not meet that 
test.

X. Section 719.21--Payment of Final Assessment

    Comment: One respondent suggests that, in order to prevent an ALJ 
from requiring payment within an unreasonably short time, that Sec.  
719.21(a) be revised to say ``or within a longer time specified in the 
order.'' This respondent commented on this provision in the proposal, 
but BIS has not addressed the comment.
    Response: As suggested by the respondent, Sec.  719.21(a) has been 
amended to provide that payment shall be made within 30 days of the 
effective date of the order or within such longer period of time as may 
be specified in the order.

Y. Section 721.1--Inspection of Records

    Comment: One respondent suggests that this section begin, ``Upon 
formal

[[Page 70766]]

request * * *'' to avoid confusion over whether a request has been made 
and to assist in determining compliance.
    Response: Requests made by the Department of Commerce may be made 
formally or informally, by telephone, in person, or through written 
correspondence. It is not necessary to distinguish between the types of 
requests that could be made. Therefore, no change has been made to the 
existing CWCR language.

Z. Section 721.2--Recordkeeping

    Comment: Two respondents propose that the recordkeeping 
requirements recognize industry's records management programs in the 
interest of additional costs to and interruption of ordinary business 
and as recognized under other statutes. Respondents request that they 
be able to use whatever type of records normally used in the ordinary 
course of business (originals or duplicates), be allowed to use any 
duplication system normally used in the ordinary course of business, be 
able to store records in logical locations that do not unduly impair 
inspections (on or off the declared plant site), and be allowed but not 
required to provide personnel and equipment to assist with records.
    Response: The existing regulatory language is designed to allow for 
accessibility of records within the time limitations imposed by the 
CWC. That language is further designed to require retention only of 
those records (or copies thereof) necessary to verify compliance with 
the CWCR. Unfortunately, based on the implementation of the CWCR to 
date, certain required records may not be kept in the ordinary course 
of business and certain document retention and duplication policies 
that are used in the ordinary course of business may likewise not 
adequately protect necessary documentation. As a result, the existing 
regulatory language has been largely retained.

AA. Section 721.3--Destruction or Disposal of Records

    Comment: Two respondents state that the requirements of this 
section undermine records management programs. Respondents argue that 
the CWCR do not require that the governmental agency must justify 
requesting the record, that once a record has been provided to the 
government it should be of no concern whether the company retains its 
copy thereafter, that there is no ending date specified, that these 
requirements exceed BIS's authority, and that the regulations do not 
impose any standards on the agency's decision to grant or deny 
permission to dispose of the records. For these reasons, Sec.  721.3 
should either be deleted or revised to allow disposal of records after 
they are provided to the government.
    Response: Section 404 of the Act provides for the release of 
certain CWC-related records in the national interest to Congress, 
enforcement agencies, or other federal agencies, as necessary. The Act 
provides guidelines for requesting records, the protection of the 
information contained in the records, and hearings related to their 
release. As the Act specifically addresses the handling of records, and 
since the Act is applicable to all government agencies, there is no 
need for BIS to further delineate those requirements in its 
regulations.

BB. Miscellaneous Comments

    Comment: It is one respondent's understanding that the OPCW 
recently amended the requirements relating to transfers of saxitoxin 
and recommended that these changes be incorporated into all parts of 
the regulations that relate to the reporting of saxitoxin transfers. In 
addition, the Handbook for Schedule 1 Declarations and Reports should 
be amended to reflect these changes. Furthermore, the respondent 
contends that such OPCW amendments should initiate notice and comment 
rulemaking to change the CWCR where it does not conflict with the 
CWCIA.
    Response: Based upon an OPCW Decision on transfers of the Schedule 
1 chemical saxitoxin, BIS has changed the advance notification period 
for transfers of 5 milligrams or less of saxitoxin, only when the 
chemical will be used for medical/diagnostic purposes. The advance 
notification for these transfers must be submitted to BIS at least 3 
calendar days prior to export or import.

CC. CWC Declaration Forms

    Comment: Two respondents encourage BIS to allow another possible 
means of determining the latitude and longitude of a declarable plant 
site, namely Land View III Mapping Software. Respondents understand 
that various industries already rely on this software for such 
determinations and suggest BIS allow the use of this and similar 
software in the course of CWC inspections as a means to further 
minimize the CWC's compliance costs to industry.
    Response: BIS has updated Supplement 1 to the Declaration and 
Report Handbook to clarify that the tools listed in the Handbook were 
only suggested options for industry to use in determining their 
facility's latitude and longitude coordinates. BIS did not intend to 
limit industry's activities to only these listed tools. There are a 
wide variety of commercial products available that may be used. Upon 
request, BIS will also assist companies in identifying their 
geographical coordinates.
    Comment: One respondent notes that ``rounding rules'' have been 
provided for Schedule 1, Schedule 2, and Schedule 3 substances in 
mixtures and that these rounding rules are necessary for UDOCs for the 
very same reasons, i.e.: Low concentrations do not pose a risk to the 
aims of the Convention; low concentrations are not readily amenable to 
diversion; the producer may not even know that a substance is present, 
if the concentration is very low; low concentrations may reflect 
inadvertent production of an impurity; and, minor fluctuations in very 
low concentrations may make it difficult to provide an accurate 
estimate of the annual quantity. In addition, UDOCs are farther removed 
from possible ``chemical weapons'' use than any of the scheduled 
chemicals and may be present in large numbers in a product stream in 
different concentrations that fluctuate. In the absence of any 
``rounding rule,'' additional Declarations and Reports will increase 
the cost of compliance without providing a corresponding benefit. The 
respondent proposes that any constituent less than 5% in a mixture be 
excluded; if not, perhaps the same ``0.5% round down to zero'' that 
applies to Schedule 1 substances could apply.
    Response: BIS will review on a case-by-case basis requests for 
determinations of mixtures containing low concentrations of UDOCS.
    Comment: According to Sec.  718.2(b)(2) and a footnote to 
Supplement No. 1 to part 718, companies must submit an up-front, 
written rationale to claim certain information is confidential. One 
respondent suggests that this requirement be deleted to reduce the 
regulatory burden and require written substantiation only in cases 
where a challenge is raised to the confidentiality of the information. 
The respondent contends this was consistent with the reporting 
requirements of many different federal, state and local agencies.
    Response: Due to the explicit definitional requirements provided in 
the Act pertaining to ``confidential business information,'' BIS has 
included in the CWCR the requirement that companies provide 
justification for why certain information should be considered CBI. BIS 
requests this ``rationale'' in writing in order to clearly ascertain 
that all elements of the Act's definition of CBI are met by the

[[Page 70767]]

company information. Additionally, this written justification assists 
BIS in keeping track of confidential business information identified by 
the company during the inspection process. As such, this requirement is 
an important tool that assists BIS in complying with the Act and 
meeting the needs of the companies.
    Comment: One respondent suggests that BIS adopt a generic policy 
that no more than two significant digits are required. This will 
greatly reduce the rounding burdens, without harming the regulatory 
program in any way.
    Response: This issue is currently under discussion at OPCW. 
Accordingly, BIS will not implement a policy until a final decision on 
this matter has been agreed upon by all States Parties.
    Comment: One respondent contends that the choices for ``purpose of 
production'' leave a gap in reporting transfers to another company 
within the same industry. The respondent proposed revising the Schedule 
3 import/export forms to say, ``Transfer to other company or 
industry.''
    Response: BIS has changed the ``purpose(s) of production'' question 
on Schedule 3 Form 3-3 as suggested by the respondent.

Rulemaking Requirements

    1. This proposed rule has been determined to be significant for 
purposes of E.O. 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless 
that collection of information displays a currently valid Office of 
Management and Budget (OMB) Control Number. This rule proposes to 
revise an existing collection of information subject to the 
requirements of the PRA. This collection has been approved by OMB under 
Control Number 0694-0091 (Chemical Weapons Convention--Declaration and 
Report Forms), which carries burden hour estimates of 10.6 hours for 
Schedule 1 Chemicals, 11.9 hours for Schedule 2 chemicals, 2.5 hours 
for Schedule 3 chemicals, 5.3/5.1 for unscheduled discrete organic 
chemicals, and 0.17 hours for Schedule 1 notifications. This rule 
proposes to add a new Section 711.3 to the Chemical Weapons Convention 
Regulations (CWCR) that would authorize BIS to contact any facility to 
request information concerning production, processing, consumption, 
export, import, or other activities involving scheduled chemicals and 
UDOCs, described in Parts 712 through 715 of the CWCR, in order to 
determine whether or not the facility is in compliance with the CWCR. 
This new requirement would apply to all persons and facilities that are 
subject to the reporting or declaration provisions of the CWCR, as set 
forth in Part 721. The total estimated annual burden hours for the 
compliance reviews authorized under new Section 711.3 would be 85 hours 
and the total estimated annual cost would be $3,236.46. This rule also 
proposes to add a new requirement for the submission of amendments (to 
previously submitted declarations and reports) resulting from 
inspection findings. The total estimated annual burden hours for this 
new amendment requirement would be 112 hours and the total estimated 
annual cost would be $4,267. Note that the estimated burden hours and 
cost for inspection related amendments are already included in the 
information collection authorization from OMB. Therefore, to avoid 
double counting the information, it does not appear as a separate line 
item under the revision to the information collection for this proposed 
rule. Finally, this rule proposes to add a new reporting form, entitled 
``No Changes'' Certification Form, for UDOC facilities to use, if 
appropriate, for certifying that there are no changes to the 
information declared in the facilities prior year's annual declaration 
on past activities. This new form will reduce industry's estimated 
annual burden by 15 hours and $571.50. Note that, like the information 
related to inspection-related amendments, the estimated burden hours 
and cost for implementing the ``No Changes'' Certification Form are 
included in a prior information collection authorization from OMB. In 
conclusion, the total estimated annual burden hours for declarations, 
reports, amendments, and requests for compliance-related information 
under this proposed rule will increase from 4401 burden hours to 4471 
burden hours. The changes proposed by this rule are addressed under two 
separate information collection submissions.
    Comments are invited on: (i) Whether the collection of information 
is necessary for the functions of the agency, including whether the 
information shall have practical utility; (ii) the accuracy of the 
agency's estimate of the burden of the proposed collection of 
information; (iii) ways to enhance the quality, utility, and clarity of 
the information to be collected; and (iv) ways to minimize the burden 
of the collection on respondents, including through the use of 
automated collection techniques or other forms of information 
technology.
    Send comments regarding this burden estimate or any other aspect of 
this collection of information, including suggestions for reducing the 
burden, to David Rostker, Office of Management and Budget (OMB), by e-
mail to <a href="/cdn-cgi/l/email-protection#0c486d7a6568535e637f7867697e4c63616e2269637c226b637a"><span class="__cf_email__" data-cfemail="490d283f202d161b263a3d222c3b0926242b672c2639672e263f">[email protected]</span></a>, or by fax to (202) 395-7285; and to 
the Regulatory Policy Division, Bureau of Industry and Security, 
Department of Commerce, P.O. Box 273, Washington, DC 20044.
    3. This rule does not contain policies with Federalism implications 
as that term is defined in Executive Order 13132.
    4. The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice and comment 
rulemaking requirements under the Administrative Procedure Act (5 
U.S.C. 553) or any other statute, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Under section 605(b) of the RFA, however, if 
the head of an agency certifies that a rule will not have a significant 
economic impact on a substantial number of small entities, the statute 
does not require the agency to prepare a regulatory flexibility 
analysis. Pursuant to section 605(b), the Chief Counsel for 
Regulations, Department of Commerce, certified to the Chief Counsel for 
Advocacy, Small Business Administration, that this proposed rule, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities for the reasons explained below. 
Consequently, BIS has not prepared a regulatory flexibility analysis.
    Small entities include small businesses, small organizations and 
small governmental jurisdictions. For purposes of assessing the impacts 
of this proposed rule on small entities, small entity is defined as: 
(1) A small business according to RFA default definitions for small 
business (based on SBA size standards), (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000, and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. BIS 
has determined that this proposed rule would affect only the first 
category of small entities (i.e., small businesses).

[[Page 70768]]

The President reported to the Congress, in December 2003, as required 
under Section 309 of the CWC Implementation Act, that 297 U.S. 
companies representing 691 facilities, plant sites, and trading 
companies were subject to the declaration and reporting requirements 
under the Chemical Weapons Convention Regulations (CWCR). Although BIS 
estimates that the majority of these 297 companies are substantially 
sized businesses, having more than 500 employees, BIS does not have 
sufficient information on these companies to definitively characterize 
them as large entities. The Small Business Administration (SBA) has 
established standards for what constitutes a small business, with 
respect to each of the Standard Industrial Classification (SIC) code 
categories for ``Chemicals and Allied Products.'' However, BIS is not 
able to determine which of these SIC code categories apply to the 
companies that are subject to the declaration, reporting, advance 
notification, recordkeeping or inspection requirements of this rule. 
Therefore, for the purpose of assessing the impact of this proposed 
rule, BIS will assume that the 297 companies are small entities.
    Although this proposed rule would affect a substantial number of 
small entities (i.e., 297 companies), if adopted, the additional 
recordkeeping and reporting requirements that would be imposed by this 
rule would not have a significant economic impact on these entities.
    First, this rule proposes to add a new Section 711.3 that would 
authorize BIS to contact any facility to determine whether or not it is 
in compliance with the CWCR. The information that BIS would be 
authorized to request would concern production, processing, 
consumption, export, import, or other activities involving scheduled 
chemicals and UDOCs described in Parts 712 through 715 of the CWCR. 
This new requirement would apply to all persons and facilities subject 
to the reporting or declaration provisions of the CWCR, as set forth in 
Part 721. The total estimated annual burden hours for the compliance 
reviews authorized under new Section 711.3 would be 85 hours and the 
total estimated annual cost would be $3,236.46.
    Second, this rule proposes to add a new requirement for the 
submission of amendments (to previously submitted declarations and 
reports) resulting from inspection findings. The total estimated annual 
burden hours for the new amendment requirement would be 112 hours and 
the total estimated annual cost would be $4,267.
    Finally, this rule proposes to add a new reporting form, entitled 
``No Changes'' Certification Form, for UDOC facilities to use, if 
appropriate, for certifying that there are no changes to the 
information declared in the facilities prior year's annual declaration 
on past activities. This new form will reduce industry's estimated 
annual burden by 15 hours and $571.50.
    The total estimated increase in annual burden hours to implement 
the additional recordkeeping and reporting requirements described above 
would be 197 burden hours and the total estimated annual cost would be 
$7,503.46. The total cost of these recordkeeping and reporting 
requirements would represent only a small percentage of the revenues 
generated by the affected companies. Although the proposed rule would 
affect a substantial number of small entities (i.e., 297 companies), 
the total economic impact on the affected entities (i.e., $7,503.46) 
would not be significant. Since the proposed revisions to the CWCR 
would not impose a significant economic impact on a substantial number 
of small entities, BIS did not prepare a regulatory flexibility 
analysis for this rule.
    Finally, the changes proposed by this rule should be viewed in 
light of the fact that BIS's discretion in formulating the declaration, 
reporting and advance notification, and recordkeeping requirements of 
the CWCR is limited by the Chemical Weapons Convention (the 
Convention). The Organization for the Prohibition of Chemical Weapons 
(OPCW) has issued forms for States Parties to use for declarations. In 
drafting the CWCR requirements and the forms for U.S. persons to use, 
BIS has consistently interpreted the Convention's requirements as 
narrowly as possible to ensure that only information that the United 
States National Authority must declare to the OPCW is to be submitted 
to BIS. Other States Parties, such as Canada, have imposed much broader 
reporting requirements on their industries, with the government taking 
on the responsibility of determining which of the information collected 
must be declared to the OPCW. In addition, certain declaration 
requirements of the Convention are subject to interpretation by States 
Parties. Until the Conference of States Parties establishes clear rules 
for these requirements, States Parties may use their ``national 
discretion'' to implement them. ``National discretion'' generally means 
a reasonable interpretation of the requirement. For requirements 
currently subject to ``national discretion,'' BIS has adopted in this 
rule the minimum requirements consistent with a reasonable reading of 
the Convention, keeping in mind its purposes and objectives.

List of Subjects

15 CFR Part 710

    Chemicals, Exports, Foreign Trade, Imports, Treaties.

15 CFR Part 711

    Chemicals, Confidential business information, Reporting and 
recordkeeping requirements.

15 CFR Part 712

    Chemicals, Exports, Foreign Trade, Imports, Reporting and 
recordkeeping requirements.

15 CFR Part 713

    Chemicals, Exports, Foreign Trade, Imports, Reporting and 
recordkeeping requirements.

15 CFR Part 714

    Chemicals, Exports, Foreign Trade, Imports, Reporting and 
recordkeeping requirements.

15 CFR Part 715

    Chemicals, Exports, Foreign Trade, Imports, Reporting and 
recordkeeping requirements.

15 CFR Part 716

    Chemicals, Confidential business information, Reporting and 
recordkeeping requirements, Search warrant, Treaties.

15 CFR Part 717

    Chemicals, Confidential business information, Reporting and 
recordkeeping requirements, Search warrant, Treaties.

15 CFR Part 718

    Confidential business information, Reporting and recordkeeping 
requirements.

15 CFR Part 719

    Administrative proceedings, Exports, Imports, Penalties, 
Violations.

15 CFR Part 720

    Penalties, violations.

15 CFR Part 721

    Reporting and recordkeeping requirements.

    Accordingly, the Chemical Weapons Convention Regulations (15 CFR, 
Chapter VII, Subchapter B, Parts 710-729) are proposed to be revised to 
read as follows:

[[Page 70769]]

PART 710--GENERAL INFORMATION AND OVERVIEW OF THE CHEMICAL WEAPONS 
CONVENTION REGULATIONS (CWCR)

Sec.
710.1 Definitions of terms used in the Chemical Weapons Convention 
Regulations (CWCR).
710.2 Scope of the CWCR.
710.3 Purposes of the Convention and CWCR.
710.4 Overview of scheduled chemicals and examples of affected 
industries.
710.5 Authority.
710.6 Relationship between the Chemical Weapons Convention 
Regulations and the Export Administration Regulations, the 
International Traffic in Arms Regulations, and the Alcohol, Tobacco, 
Firearms and Explosives Regulations.
Supplement No. 1 to Part 710--States Parties to the Convention on 
the Prohibition of the Development, Production, Stockpiling and Use 
of Chemical Weapons and on Their Destruction
Supplement No. 2 to Part 710--Definitions of Production

    Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 
CFR, 1999 Comp., p. 199.


Sec.  710.1  Definitions of terms used in the Chemical Weapons 
Convention Regulations (CWCR).

    The following are definitions of terms used in the CWCR (parts 710 
through 729 of this subchapter, unless otherwise noted):
    Act (The). Means the Chemical Weapons Convention Implementation Act 
of 1998 (22 U.S.C. 6701 et seq.).
    Advance Notification. Means a notice informing BIS of a company's 
intention to export to or import from a State Party a Schedule 1 
chemical. This advance notification must be submitted to BIS at least 
45 days prior to the date of export or import (except for transfers of 
5 milligrams or less of saxitoxin for medical/diagnostic purposes, 
which must be submitted to BIS at least 3 days prior to export or 
import). BIS will inform the company in writing of the earliest date 
the shipment may occur under the advance notification procedure. 
Additionally, this advance notification requirement is imposed in 
addition to any export license requirements under the Department of 
Commerce's Export Administration Regulations (15 CFR Parts 730 through 
799) or the Department of State's International Traffic in Arms 
Regulations (22 CFR Parts 120 through 130) or any import license 
requirements under the Department of Justice's Bureau of Alcohol, 
Tobacco, Firearms and Explosives Regulations (27 CFR part 447).
    Bureau of Industry and Security (BIS). Means the Bureau of Industry 
and Security of the United States Department of Commerce, including 
Export Administration and Export Enforcement.
    By-product. Means any chemical substance or mixture produced 
without a separate commercial intent during the manufacture, 
processing, use or disposal of another chemical substance or mixture.
    Chemical Weapon. Means the following, together or separately:
    (1) Toxic chemicals and their precursors, except where intended for 
purposes not prohibited under the Chemical Weapons Convention (CWC), 
provided that the type and quantity are consistent with such purposes;
    (2) Munitions and devices, specifically designed to cause death or 
other harm through the toxic properties of those toxic chemicals 
specified in paragraph (1) of this definition, which would be released 
as a result of the employment of such munitions and devices;
    (3) Any equipment specifically designed for use directly in 
connection with the employment of munitions or devices specified in 
paragraph (2) of this definition.
    Chemical Weapons Convention (CWC or Convention). Means the 
Convention on the Prohibition of the Development, Production, 
Stockpiling and Use of Chemical Weapons and on Their Destruction, and 
its annexes opened for signature on January 13, 1993.
    Chemical Weapons Convention Regulations (CWCR). Means the 
regulations contained in 15 CFR parts 710 through 729.
    Consumption. Consumption of a chemical means its conversion into 
another chemical via a chemical reaction. Unreacted material must be 
accounted for as either waste or as recycled starting material.
    Declaration or report form. Means a multi-purpose form to be 
submitted to BIS regarding activities involving Schedule 1, Schedule 2, 
Schedule 3, or unscheduled discrete organic chemicals. Declaration 
forms will be used by facilities that have data declaration obligations 
under the CWCR and are ``declared'' facilities whose facility-specific 
information will be transmitted to the OPCW. Report forms will be used 
by entities that are ``undeclared'' facilities or trading companies 
that have limited reporting requirements for only export and import 
activities under the CWCR and whose facility-specific information will 
not be transmitted to the OPCW. Information from declared facilities, 
undeclared facilities and trading companies will also be used to 
compile U.S. national aggregate figures on the production, processing, 
consumption, export and import of specific chemicals. See also related 
definitions of declared facility, undeclared facility and report.
    Declared facility or plant site. Means a facility or plant site 
that submits declarations of activities involving Schedule 1, Schedule 
2, Schedule 3, or unscheduled discrete organic chemicals above 
specified threshold quantities.
    Discrete organic chemical. Means any chemical belonging to the 
class of chemical compounds consisting of all compounds of carbon, 
except for its oxides, sulfides, and metal carbonates, identifiable by 
chemical name, by structural formula, if known, and by Chemical 
Abstract Service registry number, if assigned. (Also see the definition 
for unscheduled discrete organic chemical.)
    Domestic transfer. Means, with regard to declaration requirements 
for Schedule 1 chemicals under the CWCR, any movement of any amount of 
a Schedule 1 chemical outside the geographical boundary of a facility 
in the United States to another destination in the United States, for 
any purpose. Also means, with regard to declaration requirements for 
Schedule 2 and Schedule 3 chemicals under the CWCR, movement of a 
Schedule 2 or Schedule 3 chemical in quantities and concentrations 
greater than specified thresholds, outside the geographical boundary of 
a facility in the United States, to another destination in the United 
States, for any purpose. Domestic transfer includes movement between 
two divisions of one company or a sale from one company to another. 
Note that any movement to or from a facility outside the United States 
is considered an export or import for reporting purposes, not a 
domestic transfer. (Also see definition of United States.)
    EAR. Means the Export Administration Regulations (15 CFR parts 730 
through 799).
    Explosive. Means a chemical (or a mixture of chemicals) that is 
included in Class 1 of the United Nations Organization hazard 
classification system.
    Facility. Means any plant site, plant or unit.
    Facility Agreement. Means a written agreement or arrangement 
between a State Party and the Organization relating to a specific 
facility subject to on-site verification pursuant to Articles IV, V, 
and VI of the Convention.
    Host Team. Means the U.S. Government team that accompanies the 
inspection team from the Organization for the Prohibition of Chemical

[[Page 70770]]

Weapons during a CWC inspection for which the regulations in this 
subchapter apply.
    Host Team Leader. Means the representative from the Department of 
Commerce who heads the U.S. Government team that accompanies the 
Inspection Team during a CWC inspection for which the regulations in 
this subchapter apply.
    Hydrocarbon. Means any organic compound that contains only carbon 
and hydrogen.
    Impurity. Means a chemical substance unintentionally present with 
another chemical substance or mixture.
    Inspection Notification. Means a written announcement to a plant 
site by the United States National Authority (USNA) or the BIS Host 
Team of an impending inspection under the Convention.
    Inspection Site.--Means any facility or area at which an inspection 
is carried out and which is specifically defined in the respective 
facility agreement or inspection request or mandate or inspection 
request as expanded by the alternative or final perimeter.
    Inspection Team. Means the group of inspectors and inspection 
assistants assigned by the Director-General of the Technical 
Secretariat to conduct a particular inspection.
    Intermediate. Means a chemical formed through chemical reaction 
that is subsequently reacted to form another chemical.
    ITAR. Means the International Traffic in Arms Regulations (22 CFR 
parts 120 through 130).
    Organization for the Prohibition of Chemical Weapons (OPCW). Means 
the international organization, located in The Hague, the Netherlands, 
that administers the CWC.
    Person. Means any individual, corporation, partnership, firm, 
association, trust, estate, public or private institution, any State or 
any political subdivision thereof, or any political entity within a 
State, any foreign government or nation or any agency, instrumentality 
or political subdivision of any such government or nation, or other 
entity located in the United States.
    Plant. Means a relatively self-contained area, structure or 
building containing one or more units with auxiliary and associated 
infrastructure, such as:
    (1) Small administrative area;
    (2) Storage/handling areas for feedstock and products;
    (3) Effluent/waste handling/treatment area;
    (4) Control/analytical laboratory;
    (5) First aid service/related medical section; and
    (6) Records associated with the movement into, around, and from the 
site, of declared chemicals and their feedstock or product chemicals 
formed from them, as appropriate.
    Plant site. Means the local integration of one or more plants, with 
any intermediate administrative levels, which are under one operational 
control, and includes common infrastructure, such as:
    (1) Administration and other offices;
    (2) Repair and maintenance shops;
    (3) Medical center;
    (4) Utilities;
    (5) Central analytical laboratory;
    (6) Research and development laboratories;
    (7) Central effluent and waste treatment area; and
    (8) Warehouse storage.
    Precursor. Means any chemical reactant which takes part, at any 
stage in the production, by whatever method, of a toxic chemical. The 
term includes any key component of a binary or multicomponent chemical 
system.
    Processing. Means a physical process such as formulation, 
extraction and purification in which a chemical is not converted into 
another chemical.
    Production. Means the formation of a chemical through chemical 
reaction, including biochemical or biologically mediated reaction (see 
Supplement No. 2 to this part).


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


    Production by synthesis. Means production of a chemical that is 
isolated for use or sale.
    Protective purposes in relation to Schedule 1 chemicals. Means any 
purpose directly related to protection against toxic chemicals and to 
protection against chemicals weapons. Further means the Schedule 1 
chemical is used for determining the adequacy of defense equipment and 
measures.
    Purposes not prohibited by the CWC. Means the following:
    (1) Any peaceful purpose related to an industrial, agricultural, 
research, medical or pharmaceutical activity or other activity;
    (2) Any purpose directly related to protection against toxic 
chemicals and to protection against chemical weapons;
    (3) Any military purpose of the United States that is not connected 
with the use of a chemical weapon and that is not dependent on the use 
of the toxic or poisonous properties of the chemical weapon to cause 
death or other harm; or
    (4) Any law enforcement purpose, including any domestic riot 
control purpose and including imposition of capital punishment.
    Report. Means information due to BIS on exports and imports of 
Schedule 1, Schedule 2 or Schedule 3 chemicals above applicable 
thresholds. Such information is included in the national aggregate 
declaration transmitted to the OPCW. Facility-specific information is 
not included in the national aggregate declaration. Note: This 
definition does not apply to parts 719 and 720 (see Sec.  719.1) of 
this subchapter.
    Schedules of Chemicals. Means specific lists of toxic chemicals, 
groups of chemicals, and precursors contained in the CWC. See 
Supplements No. 1 to parts 712 through 714 of this subchapter.
    State Party. Means a country for which the CWC is in force. See 
Supplement No. 1 to this part.
    Storage. For purposes of Schedule 1 chemical reporting, means any 
quantity that is not accounted for under the categories of production, 
export, import, consumption or domestic transfer.
    Technical Secretariat. Means the organ of the OPCW charged with 
carrying out administrative and technical support functions for the 
OPCW, including carrying out the verification measures delineated in 
the CWC.
    Toxic Chemical. Means any chemical which, through its chemical 
action on life processes, can cause death, temporary incapacitation, or 
permanent harm to humans or animals. The term includes all such 
chemicals, regardless of their origin or of their method of production, 
and regardless of whether they are produced in facilities, in 
munitions, or elsewhere. Toxic chemicals that have been identified for 
the application of verification measures are in schedules contained in 
Supplements No. 1 to parts 712 through 714 of this subchapter.
    Trading company. Means any person involved in the export and/or 
import of scheduled chemicals in amounts greater than specified 
thresholds, but not in the production, processing or consumption of 
such chemicals in amounts greater than threshold amounts requiring 
declaration. If such persons exclusively export or import scheduled 
chemicals in

[[Page 70771]]

amounts greater than specified thresholds, they are subject to 
reporting requirements but are not subject to routine inspections. Such 
persons must be the principal party in interest of the exports or 
imports and may not delegate CWC reporting responsibilities to a 
forwarding or other agent.
    Transfer. See domestic transfer.
    Transient intermediate. Means any chemical which is produced in a 
chemical process but, because they are in a transition state in terms 
of thermodynamics and kinetics, exist only for a very short period of 
time, and cannot be isolated, even by modifying or dismantling the 
plant, or altering process operating conditions, or by stopping the 
process altogether.
    Undeclared facility or plant site. Means a facility or plant site 
that is not subject to declaration requirements because of past or 
anticipated production, processing or consumption involving scheduled 
or unscheduled discrete organic chemicals above specified threshold 
quantities. However, such facilities and plant sites may have a 
reporting requirement for exports or imports of such chemicals.
    Unit. Means the combination of those items of equipment, including 
vessels and vessel set up, necessary for the production, processing or 
consumption of a chemical.
    United States. Means the several States of the United States, the 
District of Columbia, and the commonwealths, territories, and 
possessions of the United States, and includes all places under the 
jurisdiction or control of the United States, including any of the 
places within the provisions of paragraph (41) of section 40102 of 
Title 49 of the United States Code, any civil aircraft of the United 
States or public aircraft, as such terms are defined in paragraphs (1) 
and (37), respectively, of section 40102 of Title 49 of the United 
States Code, and any vessel of the United States, as such term is 
defined in section 3(b) of the Maritime Drug Enforcement Act, as 
amended (section 1903(b) of Title 46 App. of the United States Code).
    United States National Authority (USNA). Means the Department of 
State serving as the national focal point for the effective liaison 
with the Organization for the Prohibition of Chemical Weapons and other 
States Parties to the Convention and implementing the provisions of the 
Chemical Weapons Convention Implementation Act of 1998 in coordination 
with an interagency group designated by the President consisting of the 
Secretary of Commerce, Secretary of Defense, Secretary of Energy, the 
Attorney General, and the heads of other agencies considered necessary 
or advisable by the President, or their designees. The Secretary of 
State is the Director of the USNA.
    Unscheduled chemical. Means a chemical that is not contained in 
Schedule 1, Schedule 2, or Schedule 3 (see Supplements No. 1 to parts 
712 through 714 of this subchapter).
    Unscheduled Discrete Organic Chemical (UDOC). Means any ``discrete 
organic chemical'' that is not contained in the Schedules of Chemicals 
(see Supplements No. 1 to parts 712 through 714 of this subchapter) and 
subject to the declaration requirements of part 715 of this subchapter. 
Unscheduled discrete organic chemicals subject to declaration under 
this subchapter are those produced by synthesis that are isolated for 
use or sale as a specific end-product.
    You. The term ``you'' or ``your'' means any person (see also 
definition of ``person''). With regard to the declaration and reporting 
requirements of the CWCR, ``you'' refers to persons that have an 
obligation to report certain activities under the provisions of the 
CWCR.


Sec.  710.2  Scope of the CWCR.

    The Chemical Weapons Convention Regulations (parts 710 through 729 
of this subchapter), or CWCR, implement certain obligations of the 
United States under the Convention on the Prohibition of the 
Development, Production, Stockpiling and Use of Chemical Weapons and on 
Their Destruction, known as the CWC or Convention.
    (a) Persons and facilities subject to the CWCR. (1) The CWCR apply 
to all persons and facilities located in the United States, except the 
following U.S. Government facilities:
    (i) Department of Defense facilities;
    (ii) Department of Energy facilities; and
    (iii) Facilities of other U.S. Government agencies that notify the 
USNA of their decision to be excluded from the CWCR.
    (2) For purposes of this subchapter, ``United States Government 
facilities'' are those facilities owned and operated by a U.S. 
Government agency (including those operated by contractors to the 
agency), and those facilities leased to and operated by a U.S. 
Government agency (including those operated by contractors to the 
agency). ``United States Government facilities'' do not include 
facilities owned by a U.S. Government agency and leased to a private 
company or other entity such that the private company or entity may 
independently decide for what purposes to use the facilities.
    (b) Activities subject to the CWCR. The activities subject to the 
CWCR (parts 710 through 729 of this subchapter) are activities, 
including production, processing, consumption, exports and imports, 
involving chemicals further described in parts 712 through 715 of this 
subchapter. These do not include activities involving inorganic 
chemicals other than those listed in the Schedules of Chemicals, or 
other specifically exempted unscheduled discrete organic chemicals.


Sec.  710.3  Purposes of the Convention and CWCR.

    (a) Purposes of the Convention. (1) The Convention imposes upon the 
United States, as a State Party, certain declaration, inspection, and 
other obligations. In addition, the United States and other States 
Parties to the Convention undertake never under any circumstances to:
    (i) Develop, produce, otherwise acquire, stockpile, or retain 
chemical weapons, or transfer, directly or indirectly, chemical weapons 
to anyone;
    (ii) Use chemical weapons;
    (iii) Engage in any military preparations to use chemical weapons; 
or
    (iv) Assist, encourage or induce, in any way, anyone to engage in 
any activity prohibited by the Convention.
    (2) One objective of the Convention is to assure States Parties 
that lawful activities of chemical producers and users are not 
converted to unlawful activities related to chemical weapons. To 
achieve this objective and to give States Parties a mechanism to verify 
compliance, the Convention requires the United States and all other 
States Parties to submit declarations concerning chemical production, 
consumption, processing and other activities, and to permit 
international inspections within their borders.
    (b) Purposes of the Chemical Weapons Convention Regulations. To 
fulfill the United States' obligations under the Convention, the CWCR 
(parts 710 through 729 of this subchapter) prohibit certain activities, 
and compel the submission of information from all facilities in the 
United States, except for Department of Defense and Department of 
Energy facilities and facilities of other U.S. Government agencies that 
notify the USNA of their decision to be excluded from the CWCR on 
activities, including exports and imports of scheduled chemicals and 
certain information regarding unscheduled discrete organic chemicals as 
described in parts 712 through 715 of this

[[Page 70772]]

subchapter. U.S. Government facilities are those owned by or leased to 
the U.S. Government, including facilities that are contractor-operated. 
The CWCR also require access for on-site inspections and monitoring by 
the OPCW, as described in parts 716 and 717 of this subchapter.


Sec.  710.4  Overview of scheduled chemicals and examples of affected 
industries.

    The following provides examples of the types of industries that may 
be affected by the CWCR (parts 710 through 729 of this subchapter). 
These examples are not exhaustive, and you should refer to parts 712 
through 715 of this subchapter to determine your obligations.
    (a) Schedule 1 chemicals are listed in Supplement No. 1 to part 712 
of this subchapter. Schedule 1 chemicals have little or no use in 
industrial and agricultural industries, but may have limited use for 
research, pharmaceutical, medical, public health, or protective 
purposes.
    (b) Schedule 2 chemicals are listed in Supplement No. 1 to part 713 
of this subchapter. Although Schedule 2 chemicals may be useful in the 
production of chemical weapons, they also have legitimate uses in areas 
such as:
    (1) Flame retardant additives and research;
    (2) Dye and photographic industries (e.g., printing ink, ball point 
pen fluids, copy mediums, paints, etc.);
    (3) Medical and pharmaceutical preparation (e.g., anticholinergics, 
arsenicals, tranquilizer preparations);
    (4) Metal plating preparations;
    (5) Epoxy resins; and
    (6) Insecticides, herbicides, fungicides, defoliants, and 
rodenticides.
    (c) Schedule 3 chemicals are listed in Supplement No. 1 to part 714 
of this subchapter. Although Schedule 3 chemicals may be useful in the 
production of chemical weapons, they also have legitimate uses in areas 
such as:
    (1) The production of:
    (i) Resins;
    (ii) Plastics;
    (iii) Pharmaceuticals;
    (iv) Pesticides;
    (v) Batteries;
    (vi) Cyanic acid;
    (vii) Toiletries, including perfumes and scents;
    (viii) Organic phosphate esters (e.g., hydraulic fluids, flame 
retardants, surfactants, and sequestering agents); and
    (2) Leather tannery and finishing supplies.
    (d) Unscheduled discrete organic chemicals are used in a wide 
variety of commercial industries, and include acetone, benzoyl peroxide 
and propylene glycol.


Sec.  710.5  Authority.

    The CWCR (parts 710 through 729 of this subchapter) implement 
certain provisions of the Chemical Weapons Convention under the 
authority of the Chemical Weapons Convention Implementation Act of 1998 
(Act), the National Emergencies Act, the International Emergency 
Economic Powers Act (IEEPA), as amended, and the Export Administration 
Act of 1979, as amended, by extending verification and trade 
restriction requirements under Article VI and related parts of the 
Verification Annex of the Convention to U.S. persons. In Executive 
Order 13128 of June 25, 1999, the President delegated authority to the 
Department of Commerce to promulgate regulations to implement the Act, 
and consistent with the Act, to carry out appropriate functions not 
otherwise assigned in the Act but necessary to implement certain 
reporting, monitoring and inspection requirements of the Convention and 
the Act.


Sec.  710.6  Relationship between the Chemical Weapons Convention 
Regulations and the Export Administration Regulations, the 
International Traffic in Arms Regulations, and the Alcohol, Tobacco, 
Firearms and Explosives Regulations.

    Certain obligations of the U.S. Government under the CWC pertain to 
exports and imports. The obligations on exports are implemented in the 
Export Administration Regulations (EAR) (15 CFR parts 730 through 799) 
and the International Traffic in Arms Regulations (ITAR) (22 CFR parts 
120 through 130). See in particular Sec. Sec.  742.2 and 742.18 and 
part 745 of the EAR, and Export Control Classification Numbers 1C350, 
1C351, 1C355 and 1C395 of the Commerce Control List (Supplement No. 1 
to part 774 of the EAR). The obligations on imports are implemented in 
the Chemical Weapons Convention Regulations (Sec. Sec.  712.2 and 
713.1) and the Alcohol, Tobacco, Firearms and Explosives Regulations in 
27 CFR part 447.

Supplement No. 1 to Part 710--States Parties to the Convention on the 
Prohibition of the Development, Production, Stockpiling, and Use of 
Chemical Weapons and on Their Destruction

List of States Parties as of November 24, 2004

Afghanistan, Albania, Algeria, Andorra, Argentina, Armenia, 
Australia, Austria, Azerbaijan
Bahrain, Bangladesh, Belarus, Belgium, Belize, Benin, Bolivia, 
Bosnia-Herzegovina, Botswana, Brazil, Brunei Darussalam*, Bulgaria, 
Burkina Faso, Burundi
Cameroon, Canada, Cape Verde, Chad, Chile, China**, Colombia, Cook 
Islands*, Costa Rica, Cote d'Ivoire (Ivory Coast), Croatia, Cuba, 
Cyprus, Czech Republic
Denmark, Dominica
Ecuador, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia
Fiji, Finland, France
Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, 
Guyana
Holy See*, Hungary
Iceland, India, Indonesia, Iran (Islamic Republic of), Ireland, 
Italy
Jamaica, Japan, Jordan
Kazakhstan, Kenya, Kiribati, Korea (Republic of), Kyrgyzstan, Kuwait
Laos (P.D.R.)*, Latvia, Lesotho, Libya, Liechtenstein, Lithuania, 
Luxembourg
Macedonia (The Former Yugoslav Republic of), Madagascar, Malawi 
Malaysia, Maldives, Mali, Malta, Marshall Islands, Mauritania, 
Mauritius, Mexico, Micronesia (Federated States of) Moldova 
(Republic of)*, Monaco, Mongolia, Morocco, Mozambique
Namibia, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Niger, 
Nigeria, Norway
Oman
Pakistan, Palau, Panama, Papua New Guinea, Paraguay, Peru, 
Philippines, Poland, Portugal
Qatar
Romania, Russian Federation, Rwanda
Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the 
Grenadines, Samoa, San Marino, Sao Tome and Principe, Saudi Arabia, 
Senegal, Serbia and Montenegro*, Seychelles, Sierra Leone, 
Singapore, Slovak Republic*, Slovenia, Solomon Islands, South 
Africa, Spain, Sri Lanka, Sudan, Suriname*, Swaziland, Sweden, 
Switzerland
Tajikistan, Tanzania (United Republic of), Thailand, Timor Leste 
(East Timor), Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, 
Turkmenistan, Tuvalu
Uganda, Ukraine, United Arab Emirates, United Kingdom, United 
States, Uruguay, Uzbekistan
Venezuela, Vietnam
Yemen
Zambia, Zimbabwe

    * For export control purposes, these destinations are identified 
using a different nomenclature under the Commerce Country Chart in 
Supplement No. 1 to part 738 of the Export Administration 
Regulations (15 CFR Parts 730 through 799).
    ** For CWC States Parties purposes, China includes Hong Kong and 
Macau.

[[Page 70773]]



                             Supplement No. 2 to Part 710--Definitions of Production
----------------------------------------------------------------------------------------------------------------
                                                                                 Unscheduled discrete  organic
         Schedule 1 chemicals           Schedule 2 and Schedule 3 chemicals           chemicals  (UDOCs)
----------------------------------------------------------------------------------------------------------------
        Produced by a biochemical or biologically mediated reaction.          Produced by synthesis.*
-----------------------------------------------------------------------------
Formation through chemical synthesis.  All production steps in any units
Processing to extract and isolate       within the same plant which includes
 Schedule 1 chemicals.                  associated processes--purification,
                                        separation, extraction distillation
                                        or refining.**
----------------------------------------------------------------------------------------------------------------
*Intermediates used in a single or multi-step process to produce another declared UDOC are not declarable.
**Intermediates are subject to declaration, except ``transient intermediates,'' which are those chemicals in a
  transition state in terms of thermodynamics and kinetics, that exist only for a very short period of time, and
  cannot be isolated, even by modifying or dismantling the plant, or by altering process operating conditions,
  or by stopping the process altogether are not subject to declaration.

PART 711--GENERAL INFORMATION REGARDING REQUIREMENTS FOR 
DECLARATION, REPORT, ADVANCE NOTIFICATION, AND ELECTRONIC FILING OF 
DECLARATIONS AND REPORTS

Sec.
711.1 Overviews of declaration, reporting, and advance notification 
requirements.
711.2 Who submits declarations, reports, and advance notifications?
711.3 Compliance review.
711.4 Assistance in determining your obligations.
711.5 Numerical precision of submitted data.
711.6 Where to obtain forms.
711.7 Where to submit declarations, reports, and advance 
notifications.
711.8 How to request authorization from BIS to make electronic 
submissions of declarations or reports.

    Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 
CFR, 1999 Comp., p. 199.


Sec.  711.1  Overviews of declaration, reporting, and advance 
notification requirements.

    Parts 712 through 715 of the CWCR (parts 710 through 729 of this 
subchapter) describe the declaration, advance notification and 
reporting requirements for Schedule 1, 2 and 3 chemicals and for 
unscheduled discrete organic chemicals (UDOCs). For each type of 
chemical, the Convention requires annual declarations. If, after 
reviewing parts 712 through 715 of this subchapter, you determine that 
you have declaration, advance notification or reporting requirements, 
you may obtain the appropriate forms by contacting the Bureau of 
Industry and Security (BIS) (see Sec.  711.6).


Sec.  711.2  Who submits declarations, reports, and advance 
notifications?

    The owner, operator, or senior management official of a facility 
subject to declaration, report, or advance notification requirements 
under the CWCR (parts 710 through 729 of this subchapter) is 
responsible for the submission of all required documents in accordance 
with all applicable provisions of the CWCR.


Sec.  711.3  Compliance review.

    Periodically, BIS will request information from persons and 
facilities subject to the CWCR to determine compliance with the 
reporting, declaration and notification requirements set forth herein. 
Information requested may relate to the production, processing, 
consumption, export, import, or other activities involving scheduled 
chemicals and unscheduled discrete organic chemicals described in parts 
712 through 715 of this subchapter. Any person or facility subject to 
the CWCR and receiving such a request for information will be required 
to provide a response to BIS within the time-frame specified in the 
request. This requirement does not, in itself, impose a requirement to 
create new records or maintain existing records. The recordkeeping 
requirements that apply to persons and facilities that are subject to 
the reporting or declaration provisions of the CWCR are set forth in 
part 721.


Sec.  711.4  Assistance in determining your obligations.

    (a) Determining if your chemical is subject to declaration, 
reporting or advance notification requirements. (1) If you need 
assistance in determining if your chemical is classified as a Schedule 
1, Schedule 2, or Schedule 3 chemical, or is an unscheduled discrete 
organic chemical, submit your written request for a chemical 
determination to BIS. Such requests may be sent via facsimile to (703) 
605-4425, e-mailed to <a href="/cdn-cgi/l/email-protection#dcbfb8ae9cbfabbff2bbb3aa"><span class="__cf_email__" data-cfemail="bbd8dfc9fbd8ccd895dcd4cd">[email protected]</span></a>, or mailed to the Treaty Compliance 
Division, Bureau of Industry and Security, U.S. Department of Commerce, 
1555 Wilson Boulevard, Suite 700, Arlington, Virginia 22209-2405. Your 
request should include the information noted in paragraph (a)(2) of 
this section to ensure an accurate determination. Also include any 
additional information that you feel is relevant to the chemical or 
process involved (see part 718 of this subchapter for provisions 
regarding treatment of confidential business information). If you are 
unable to provide all of the information required in paragraph (a)(2) 
of this section, you should include an explanation identifying the 
reasons or deficiencies that preclude you from supplying the 
information. If BIS cannot make a determination based upon the 
information submitted, BIS will return the request to you and identify 
the additional information that is necessary to complete a chemical 
determination. BIS will provide a written response to your chemical 
determination request within 10 working days of receipt of the request.
    (2) Include the following information in each chemical 
determination request:
    (i) Date of request;
    (ii) Company name and complete street address;
    (iii) Point of contact;
    (iv) Phone and facsimile number of contact;
    (v) E-mail address of contact, if you want an acknowledgment of 
receipt sent via e-mail;
    (vi) Chemical Name;
    (vii) Structural formula of the chemical, if the chemical is not 
specifically identified by name and chemical abstract service registry 
number in Supplements No. 1 to parts 712 through 714 of the CWCR; and
    (viii) Chemical Abstract Service registry number, if assigned.
    (b) Other inquiries. If you need assistance in interpreting the 
provisions of this subchapter or need assistance with declaration, 
forms, reporting, advance notification, inspection or facility 
agreement issues, contact BIS's Treaty Compliance Division by phone at 
(703) 605-4400. If you require a response from BIS in writing, submit a 
detailed request to BIS that explains your question, issue, or request. 
Send the request to the address or facsimile

[[Page 70774]]

included in paragraph (a) of this section, or e-mail the request to 
<a href="/cdn-cgi/l/email-protection#4724302436260724302469202831"><span class="__cf_email__" data-cfemail="9ffce8fceefedffce8fcb1f8f0e9">[email protected]</span></a>.


Sec.  711.5  Numerical precision of submitted data.

    Numerical information submitted in declarations and reports is to 
be provided per applicable rounding rules in each part (i.e., parts 712 
through 715 of this subchapter) with a precision equal to that which 
can be reasonably provided using existing documentation, equipment, and 
measurement techniques.


Sec.  711.6  Where to obtain forms.

    (a) Forms to complete declarations and reports required by the CWCR 
may be obtained by contacting: Treaty Compliance Division, Bureau of 
Industry and Security, U.S. Department of Commerce, 1555 Wilson Blvd., 
Suite 700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Forms 
and forms software may also be downloaded from the Internet at http://www.cwc.gov.
    (b) If the amount of information you are required to submit is 
greater than the given form will allow, multiple copies of forms may be 
submitted.


Sec.  711.7  Where to submit declarations, reports and advanced 
notifications.

    Declarations, reports and advance notifications required by the 
CWCR must be sent to: Treaty Compliance Division, Bureau of Industry 
and Security, U.S. Department of Commerce, 1555 Wilson Blvd., Suite 
700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Advanced 
notifications may also be facsimiled to (703) 235-1481. Specific types 
of declarations and reports and due dates are outlined in Supplement 
No. 2 to parts 712 through 715 of the CWCR.


Sec.  711.8  How to request authorization from BIS to make electronic 
submissions of declarations or reports.

    (a) Scope. This section provides an optional method of submitting 
declarations or reports. Specifically, this section applies to the 
electronic submission of declarations and reports required under the 
CWCR. If you choose to submit declarations and reports by electronic 
means, all such electronic submissions must be made through the Web-
Data Entry System for Industry (Web-DESI), which can be accessed on the 
CWC Web site at http://www.cwc.gov.
    (b) Authorization. If you or your company has a facility, plant 
site, or trading company that has been assigned a U.S. Code Number (USC 
Number), you may submit declarations and reports electronically, once 
you have received authorization from BIS to do so. An authorization to 
submit declarations and reports electronically may be limited or 
withdrawn by BIS at any time. There are no prerequisites for obtaining 
permission to submit electronically, nor are there any limitations with 
regard to the types of declarations or reports that are eligible for 
electronic submission. However, BIS may direct, for any reason, that 
any electronic declaration or report be resubmitted in writing, either 
in whole or in part.
    (1) Requesting approval to submit declarations and reports 
electronically. To submit declarations and reports electronically, you 
or your company must submit a written request to BIS at the address 
identified in Sec.  711.6 of the CWCR. Both the envelope and letter 
must be marked ``Attn: Electronic Declaration or Report Request.'' Your 
request should be on company letterhead and must contain your name or 
the company's name, your mailing address at the company, the name of 
the facility, plant site or trading company and its U.S. Code Number, 
the address of the facility, plant site or trading company (this 
address may be different from the mailing address), the list of 
individuals who are authorized to view, edit, or edit and submit 
declarations and reports on behalf of your company, and the telephone 
number and name and title of the official responsible for certifying 
that each individual listed in the request is authorized to view, edit, 
or edit and submit declarations and reports on behalf of you or your 
company. Additional information required for submitting electronic 
declarations and reports may be found on BIS's Web site at http://www.cwc.gov. Once you have completed and submitted the necessary 
certifications, you may be authorized by BIS to view, edit, or edit and 
submit declarations and reports electronically.

    Note to Sec.  711.8(b)(1): You must submit a separate request 
for each facility, plant site or trading company owned by your 
company (e.g., each site that is assigned a unique U.S. Code 
Number).

    (2) Assignment and use of passwords for facilities, plant sites and 
trading companies (USC password) and Web-DESI user accounts (user name 
and password). (i) Each person, facility, plant site or trading company 
authorized to submit declarations and reports electronically will be 
assigned a password (USC password) that must be used in conjunction 
with the U.S.C. Number. Each individual authorized by BIS to view, 
edit, or edit and submit declarations and reports electronically for a 
facility, plant site or trading company will be assigned a Web-DESI 
user account (user name and password) telephonically by BIS. A Web-DESI 
user account will be assigned to you only if your company has certified 
to BIS that you are authorized to act for it in viewing, editing, or 
editing and submitting electronic declarations and reports under the 
CWCR.


    Note to Sec.  711.8(b)(2)(i): When individuals must have access 
to multiple Web-DESI accounts, their companies must identify such 
individuals on the approval request for each of these Web-DESI 
accounts. BIS will coordinate with such individuals to ensure that 
the assigned user name and password is the same for each account.


    (ii) Your company may reveal the facility, plant site or trading 
company password (USC password) only to Web-DESI users with valid 
passwords, their supervisors, and employees or agents of the company 
with a commercial justification for knowing the password.
    (iii) If you are an authorized Web-DESI account user, you may not:
    (A) Disclose your user name or password to anyone;
    (B) Record your user name or password, either in writing or 
electronically;
    (C) Authorize another person to use your user name or password; or
    (D) Use your user name or password following termination, either by 
BIS or by your company, of your authorization or approval for Web-DESI 
use.
    (iv) To prevent misuse of the Web-DESI account:
    (A) If Web-DESI user account information (i.e., user name and 
password) is lost, stolen or otherwise compromised, the company and the 
user must report the loss, theft or compromise of the user account 
information, immediately, by calling BIS at (703) 235-1335. Within two 
business days of making the report, the company and the user must 
submit written confirmation to BIS at the address provided in Sec.  
711.6 of the CWCR.
    (B) Your company is responsible for immediately notifying BIS 
whenever a Web-DESI user leaves the employ of the company or otherwise 
ceases to be authorized by the company to submit declarations and 
reports electronically on its behalf.
    (v) No person may use, copy, appropriate or otherwise compromise a 
Web-DESI account user name or password assigned to another person. No 
person, except a person authorized access by the company, may use or 
copy the facility, plant site or trading company password (USC 
password), nor may any person steal or otherwise compromise this 
password.

[[Page 70775]]

    (c) Electronic submission of declarations and reports.
    (1) General instructions. Upon submission of the required 
certifications and approval of the company's request to use electronic 
submission, BIS will provide instructions on both the method for 
transmitting declarations and reports electronically and the process 
for submitting required supporting documents, if any. These 
instructions may be modified by BIS from time to time.
    (2) Declarations and reports. The electronic submission of a 
declaration or report will constitute an official document as required 
under parts 712 through 715 of the CWCR. Such submissions must provide 
the same information as written declarations and reports and are 
subject to the recordkeeping provisions of part 720 of the CWCR. The 
company and Web-DESI user submitting the declaration or report will be 
deemed to have made all representations and certifications as if the 
submission were made in writing by the company and signed by the 
certifying official. Electronic submission of a declaration or report 
will be considered complete upon transmittal to BIS.
    (d) Updating. A company approved for electronic submission of 
declarations or reports under Web-DESI must promptly notify BIS of any 
change in its name, ownership or address. If your company wishes to 
have an individual added as a Web-DESI user, your company must inform 
BIS and follow the instructions provided by BIS. Your company should 
conduct periodic reviews to ensure that the company's designated 
certifying official and Web-DESI users are individuals whose current 
responsibilities make it necessary and appropriate that they act for 
the company in either capacity.

PART 712--ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS

Sec.
712.1 Round to zero rule that applies to activities involving 
Schedule 1 chemicals.
712.2 Restrictions on the activities involving Schedule 1 chemicals.
712.3 Initial declaration requirements for declared facilities which 
are engaged in the production of Schedule 1 chemicals for purposes 
not prohibited by the CWC.
712.4 New Schedule 1 production facility.
712.5 Annual declaration requirements for facilities engaged in the 
production of Schedule 1 chemicals for purposes not prohibited by 
the CWC.
712.6 Advance notification and annual report of all exports and 
imports of Schedule 1 chemicals to, or from, other States Parties.
712.7 Amended declaration or report.
712.8 Declarations and reports returned without action by BIS.
712.9 Deadlines for submission of Schedule 1 declarations, reports, 
advance notifications, and amendments.
Supplement No. 1 to Part 712--Schedule 1 Chemicals
Supplement No. 2 to Part 712--Deadlines for Submission of Schedule 1 
Declarations, Advance Notifications, Reports, and Amendments

    Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 
950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 
200; E.O. 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. 199.


Sec.  712.1  Round to zero rule that applies to activities involving 
Schedule 1 chemicals.

    Facilities that produce, export or import mixtures containing less 
than 0.5% aggregate quantities of Schedule 1 chemicals (see Supplement 
No. 1 to this part) as unavoidable by-products or impurities may round 
to zero and are not subject to the provision of this part 712. Schedule 
1 content may be calculated by volume or weight, whichever yields the 
lesser percent. Note that such mixtures may be subject to the 
regulatory requirements of other federal agencies.


Sec.  712.2  Restrictions on the activities involving Schedule 1 
chemicals.

    (a) You may not produce Schedule 1 chemicals for protective 
purposes.
    (b) You may not import any Schedule 1 chemical unless:
    (1) The import is from a State Party;
    (2) The import is for research, medical, pharmaceutical, or 
protective purposes;
    (3) The import is in types and quantities strictly limited to those 
that can be justified for such purposes; and
    (4) You have notified BIS at least 45 calendar days prior to the 
import, pursuant to Sec.  712.6 of the CWCR.


    Note 1 to Sec.  712.2: Pursuant to Sec.  712.6, advance 
notifications of import of saxitoxin of 5 milligrams or less for 
medical/diagnostic purposes must be submitted to BIS at least 3 days 
prior to import.


    Note 2 to Sec.  712.2: For specific provisions relating to the 
prior advance notification of exports of all Schedule 1 chemicals, 
see Sec.  745.1 of the Export Administration Regulations (EAR) (15 
CFR parts 730 through 799). For specific provisions relating to 
license requirements for exports of Schedule 1 chemicals, see Sec.  
742.2 and Sec.  742.18 of the EAR for Schedule 1 chemicals subject 
to the jurisdiction of the Department of Commerce and see the 
International Traffic in Arms Regulations (22 CFR parts 120 through 
130) for Schedule 1 chemicals subject to the jurisdiction of the 
Department of State.


    (c)(1) The provisions of paragraphs (a) and (b) of this section do 
not apply to the retention, ownership, possession, transfer, or receipt 
of a Schedule 1 chemical by a department, agency, or other entity of 
the United States, or by a person described in paragraph (c)(2) of this 
section, pending destruction of the Schedule 1 chemical;
    (2) A person referred to in paragraph (c)(1) of this section is:
    (i) Any person, including a member of the Armed Forces of the 
United States, who is authorized by law or by an appropriate officer of 
the United States to retain, own, possess transfer, or receive the 
Schedule 1 chemical; or
    (ii) In an emergency situation, any otherwise non-culpable person 
if the person is attempting to seize or destroy the Schedule 1 
chemical.


Sec.  712.3  Initial declaration requirements for declared facilities 
which are engaged in the production of Schedule 1 chemicals for 
purposes not prohibited by the CWC.

    Initial declarations submitted in February 2000 remain valid until 
amended or rescinded. If you plan to change/amend the technical 
description of your facility submitted with your initial declaration, 
you must submit an amended initial declaration to BIS 200 calendar days 
prior to implementing the change (see 712.5(b)(1)(ii)).


Sec.  712.4  New Schedule 1 production facility.

    (a) Establishment of a new Schedule 1 production facility. (1) If 
your facility has never before been declared under Sec.  712.5 of the 
CWCR, or the initial declaration for your facility has been withdrawn 
pursuant to Sec.  712.5(f) of the CWCR, and you intend to begin 
production of Schedule 1 chemicals at your facility in quantities 
greater than 100 grams aggregate per year for research, medical, or 
pharmaceutical purposes, you must provide an initial declaration (with 
a current detailed technical description of your facility) to BIS in no 
less than 200 calendar days in advance of commencing such production. 
Such facilities are considered to be ``new Schedule 1 production 
facilities'' and are subject to an initial inspection within 200 
calendar days of submitting an initial declaration.
    (2) New Schedule 1 production facilities that submit an initial 
declaration pursuant to paragraph (a)(1) of this section are considered 
approved Schedule 1 production facilities for purposes of the CWC, 
unless otherwise notified by BIS within 30 days of receipt by BIS of 
that initial declaration.
    (b) Types of declaration forms required. If your new Schedule 1

[[Page 70776]]

production facility will produce in excess of 100 grams aggregate of 
Schedule 1 chemicals, you must complete the Certification Form, Form 1-
1 and Form A. You must also provide a detailed technical description of 
the new facility or its relevant parts, and a detailed diagram of the 
declared areas in the facility.
    (c) Two hundred days after a new Schedule 1 production facility 
submits its initial declaration, it is subject to the declaration 
requirements of Sec.  712.5(a)(1) and (a)(2), and Sec.  
712.5(b)(1)(ii).


Sec.  712.5  Annual declaration requirements for facilities engaged in 
the production of Schedule 1 chemicals for purposes not prohibited by 
the CWC.

    (a) Declaration requirements. (1) Annual declaration on past 
activities. You must complete the forms specified in paragraph (b)(2) 
of this section if you produced at your facility in excess of 100 grams 
aggregate of Schedule l chemicals in the previous calendar year. As a 
declared Schedule 1 facility, in addition to declaring the production 
of each Schedule 1 chemical that comprises your aggregate production of 
Schedule 1 chemicals, you must also declare any Schedule 1, Schedule 2, 
or Schedule 3 precursor used to produce the declared Schedule 1 
chemical. You must further declare each Schedule 1 chemical used 
(consumed) and stored at your facility, and domestically transferred 
from your facility during the previous calendar year, whether or not 
you produced that Schedule 1 chemical at your facility.
    (2) Annual declaration on anticipated activities. You must complete 
the forms specified in paragraph (b)(3) of this section if you 
anticipate that you will produce at your facility more than 100 grams 
aggregate of Schedule 1 chemicals in the next calendar year. If you are 
not already a declared facility, you must complete an initial 
declaration (see Sec.  712.4) 200 calendar days before commencing 
operations or increasing production which will result in production of 
more than 100 grams aggregate of Schedule 1 chemicals.
    (b) Declaration forms to be used. (1) Initial declaration. (i) You 
must have completed the Certification Form, Form 1-1 and Form A if you 
produced at your facility in excess of 100 grams aggregate of Schedule 
1 chemicals in calendar years 1997, 1998, or 1999. You must have 
provided a detailed current technical description of your facility or 
its relevant parts including a narrative statement, and a detailed 
diagram of the declared areas in the facility.
    (ii) If you plan to change the technical description of your 
facility from your initial declaration completed and submitted pursuant 
to Sec.  712.3 or Sec.  712.4, you must submit an amended initial 
declaration to BIS 200 calendar days prior to the change. Such 
amendments to your initial declaration must be made by completing a 
Certification Form, Form 1-1 and Form A, including the new description 
of the facility. See Sec.  712.7 for additional instructions on 
amending Schedule 1 declarations.
    (2) Annual declaration on past activities. If you are subject to 
the declaration requirement of paragraph (a)(1) of this section, you 
must complete the Certification Form and Forms 1-1, 1-2, 1-2A, 1-2B, 
and Form A if your facility was involved in the production of Schedule 
1 chemicals in the previous calendar year. Form B is optional.
    (3) Annual declaration on anticipated activities. If you anticipate 
that you will produce at your facility in excess of 100 grams aggregate 
of Schedule 1 chemicals in the next calendar year you must complete the 
Certification Form and Forms 1-1, 1-4, and Form A. Form B is optional.
    (c) Quantities to be declared. If you produced in excess of 100 
grams aggregate of Schedule 1 chemicals in the previous calendar year, 
you must declare the entire quantity of such production, rounded to the 
nearest gram. You must also declare the quantity of any Schedule 1, 
Schedule 2 or Schedule 3 precursor used to produce the declared 
Schedule 1 chemical, rounded to the nearest gram. You must further 
declare the quantity of each Schedule 1 chemical consumed or stored by, 
or domestically transferred from, your facility, whether or not the 
Schedule 1 chemical was produced by your facility, rounded to the 
nearest gram. In calculating the amount of Schedule 1 chemical you 
produced, consumed or stored, count only the amount of the Schedule 1 
chemical(s) in a mixture, not the total weight of the mixture (i.e., do 
not count the weight of the solution, solvent, or container).
    (d) For the purpose of determining if a Schedule 1 chemical is 
subject to declaration, you must declare a Schedule 1 chemical that is 
an intermediate, but not a transient intermediate.
    (e) ``Declared'' Schedule 1 facilities and routine inspections. 
Only facilities that submitted a declaration pursuant to paragraph 
(a)(1) or (a)(2) of this section or Sec.  712.4 are considered 
``declared'' Schedule 1 facilities. A ``declared'' Schedule 1 facility 
is subject to initial and routine inspection by the OPCW (see part 716 
of this subchapter).
    (f) Approval of declared Schedule 1 production facilities. 
Facilities that submit declarations pursuant to this section are 
considered approved Schedule 1 production facilities for purposes of 
the CWC, unless otherwise notified by BIS within 30 days of receipt by 
BIS of an annual declaration on past activities or annual declaration 
on anticipated activities (see paragraphs (a)(1) and (a)(2) of this 
section). If your facility does not produce more than 100 grams 
aggregate of Schedule 1 chemicals, no approval by BIS is required.
    (g) Withdrawal of Schedule 1 initial declarations. A facility 
subject to Sec. Sec.  712.3, 712.4 and 712.5 of the CWCR may withdraw 
its initial declaration at any time by notifying BIS in writing. A 
notification requesting the withdrawal of the initial declaration 
should be sent on company letterhead to the address in Sec.  711.6 of 
the CWCR. BIS will acknowledge receipt of the withdrawal of the initial 
declaration. Facilities withdrawing their initial declaration may not 
produce subsequently in excess of 100 grams aggregate of Schedule 1 
chemicals within a calendar year unless pursuant to Sec.  712.4.


Sec.  712.6  Advance notification and annual report of all exports and 
imports of Schedule 1 chemicals to, or from, other States Parties.

    Pursuant to the Convention, the United States is required to notify 
the OPCW not less than 30 days in advance of every export or import of 
a Schedule 1 chemical, in any quantity, to or from another State Party. 
In addition, the United States is required to provide a report of all 
exports and imports of Schedule 1 chemicals to or from other States 
Parties during each calendar year. If you plan to export or import any 
quantity of a Schedule 1 chemical from or to your declared facility, 
undeclared facility or trading company, you must notify BIS in advance 
of the export or import and complete an annual report of exports and 
imports that actually occurred during the previous calendar year. The 
United States will transmit to the OPCW the advance notifications and a 
detailed annual declaration of each actual export or import of a 
Schedule 1 chemical from/to the United States. Note that the advance 
notification and annual report requirements of this section do not 
relieve you of any requirement to obtain a license for export of 
Schedule 1 chemicals subject to the EAR or ITAR or a license for import 
of Schedule 1 chemicals from the Department of Justice under the 
Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 
447. Only ``declared'' facilities as defined in Sec.  712.5(d) are 
subject to

[[Page 70777]]

initial and routine inspections pursuant to part 716 of this 
subchapter.
    (a) Advance notification of exports and imports. You must notify 
BIS at least 45 calendar days prior to exporting or importing any 
quantity of a Schedule 1 chemical, except for exports or imports of 5 
milligrams or less of Saxitoxin--B (7)--for medical/diagnostic 
purposes, listed in Supplement No. 1 to this part to or from another 
State Party. Advance notification of export or import of 5 milligrams 
or less of Saxitoxin for medical/diagnostic purposes only, must be 
submitted to BIS at least 3 calendar days prior to export or import. 
Note that advance notifications for exports may be sent to BIS prior to 
or after submission of a license application to BIS for Schedule 1 
chemicals subject to the EAR and controlled under ECCN 1C351 or to the 
Department of State for Schedule 1 chemicals controlled under the ITAR. 
Such advance notifications must be submitted separately from license 
applications.
    (1) Advance notifications should be on company letterhead or must 
clearly identify the reporting entity by name of company, complete 
address, name of contact person and telephone and facsimile numbers, 
along with the following information:
    (i) Chemical name;
    (ii) Structural formula of the chemical;
    (iii) Chemical Abstract Service (CAS) Registry Number;
    (iv) Quantity involved in grams;
    (v) Planned date of export or import;
    (vi) Purpose (end-use) of export or import (i.e., research, 
medical, pharmaceutical, or protective purposes);
    (vii) Name(s) of exporter and importer;
    (viii) Complete street address(es) of exporter and importer;
    (ix) U.S. export license or control number, if known; and
    (x) Company identification number, once assigned by BIS.
    (2) Send the advance notification by facsimile to (703) 235-1481 or 
to the following address for mail and courier deliveries: Treaty 
Compliance Division, Bureau of Industry and Security, Department of 
Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, VA 22209-2405, 
Attn: ``Advance Notification of Schedule 1 Chemical [Export][Import].''
    (3) Upon receipt of the advance notification, BIS will inform the 
exporter or importer of the earliest date after which the shipment may 
occur under the advance notification procedure. To export a Schedule 1 
chemical subject to an export license requirement either under the EAR 
or the ITAR, the exporter must have applied for and been granted a 
license (see Sec.  742.2 and Sec.  742.18 of the EAR, or the ITAR at 22 
CFR parts 120 through 130).
    (b) Annual report requirements for exports and imports of Schedule 
1 chemicals. Any person subject to the CWCR that exported or imported 
any quantity of Schedule 1 chemical to or from another State Party 
during the previous calendar year has a reporting requirement under 
this section.
    (1) Annual report on exports and imports. Declared and undeclared 
facilities, trading companies, and any other person subject to the CWCR 
that exported or imported any quantity of a Schedule 1 chemical to or 
from another State Party in a previous calendar year must submit an 
annual report on exports and imports.
    (2) Report forms to submit. (i) Declared Schedule 1 facilities. (A) 
If your facility declared production of a Schedule 1 chemical and you 
also exported or imported any amount of that same Schedule 1 chemical, 
you must report the export or import by submitting either:
    (1) Combined declaration and report. Submit, along with your 
declaration, Form 1-3 for that same Schedule 1 chemical to be reported. 
Attach Form A, as appropriate; Form B is optional; or
    (2) Report. Submit, separately from your declaration, a 
Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 
chemical to be reported. Attach Form A, as appropriate; Form B is 
optional.
    (B) If your facility declared production of a Schedule 1 chemical 
and exported or imported any amount of a different Schedule 1 chemical, 
you must report the export or import by submitting either:
    (1) Combined declaration and report. Submit, along with your 
declaration, a Form 1-3 for each Schedule 1 chemical to be reported. 
Attach Form A, as appropriate; Form B is optional; or
    (2) Report. Submit, separately from your declaration, a 
Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 
chemical to be reported. Attach Form A, as appropriate; Form B is 
optional.
    (ii) If you are an undeclared facility, trading company, or any 
other person subject to the CWCR, and you exported or imported any 
amount of a Schedule 1 chemical, you must report the export or import 
by submitting a Certification Form, Form 1-1, and a Form 1-3 for each 
Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form 
B is optional.
    (c) Paragraph (a) of this section does not apply to the activities 
and persons set forth in Sec.  712.2(b).


Sec.  712.7  Amended declaration or report.

    In order for BIS to maintain accurate information on previously 
submitted facility declarations, including information necessary to 
facilitate inspection notifications and activities or to communicate 
declaration or report requirements, amended declarations or reports 
will be required under the following circumstances described in this 
section. This section applies only to annual declarations on past 
activities and annual reports on exports and imports submitted for the 
previous calendar year or annual declarations on anticipated activities 
covering the current calendar year, unless specified otherwise in a 
final inspection report.
    (a) Changes to information that directly affect inspection of a 
declared facility's Annual Declaration of Past Activities (ADPA) or 
Annual Declaration on Anticipated Activities (ADAA). You must submit an 
amended declaration or report to BIS within 15 days of any change in 
the following information:
    (1) Types of Schedule 1 chemicals produced (e.g., additional 
Schedule 1 chemicals);
    (2) Quantities of Schedule 1 chemicals produced;
    (3) Activities involving Schedule 1 chemicals; and
    (4) End-use of Schedule 1 chemicals (e.g., additional end-use(s)).
    (b) Changes to export or import information submitted in Annual 
Reports on Exports and Imports from undeclared facilities, trading 
companies and U.S. persons. You must submit an amended report or 
amended combined declaration and report for changes to export or import 
information within 15 days of any change in the following export or 
import information:
    (1) Types of Schedule 1 chemicals exported or imported (e.g., 
additional Schedule 1 chemicals);
    (2) Quantities of Schedule 1 chemicals exported or imported;
    (3) Destination(s) of Schedule 1 chemicals exported;
    (4) Source(s) of Schedule 1 chemicals imported;
    (5) Activities involving exports and imports of Schedule 1 
chemicals; and
    (6) End-use(s) of Schedule 1 chemicals exported or imported (e.g., 
additional end-use(s)).
    (c) Changes to company and facility information previously 
submitted to BIS in the ADPA, the ADAA, and the Annual Report on 
Exports and Imports. (1) Internal company changes. You must

[[Page 70778]]

submit an amended declaration or report to BIS within 30 days of any 
change in the following information:
    (i) Name of declaration/report point of contact (D-POC), including 
telephone number, facsimile number, and e-mail address;
    (ii) Name(s) of inspection point(s) of contact (I-POC), including 
telephone number(s), and facsimile number(s);
    (iii) Company name (see Sec.  712.7(c)(2) of the CWCR for other 
company changes);
    (iv) Company mailing address;
    (v) Facility name;
    (vi) Facility owner, including telephone number, and facsimile 
number; and
    (vii) Facility operator, including telephone number, and facsimile 
number.
    (2) Change in ownership of company or facility. If you sold or 
purchased a declared facility or trading company, you must submit an 
amended declaration or report to BIS, either before the effective date 
of the change or within 30 days after the effective date of the change. 
The amended declaration or report must include the following 
information:
    (i) Information that must be submitted to BIS by the company 
selling a declared facility:
    (A) Name of seller (i.e., name of the company selling a declared 
facility);
    (B) Name of the declared facility and U.S. Code Number for that 
facility;
    (C) Name of purchaser (i.e., name of the new company purchasing a 
declared facility) and identity of contact person for the purchaser, if 
known;
    (D) Date of ownership transfer or change;
    (E) Additional details on sale of the declared facility relevant to 
ownership or operational control over any portion of that facility 
(e.g., whether the entire facility or only a portion of the declared 
facility has been sold to a new owner); and
    (F) Details regarding whether the new owner will submit the next 
declaration or report for the entire calendar year during which the 
ownership change occurred, or whether the previous owner and new owner 
will submit separate declarations or reports for the periods of the 
calendar year during which each owned the facility or trading company.
    (1) If the new owner is responsible for submitting the declaration 
or report for the entire current year, it must have in its possession 
the records for the period of the year during which the previous owner 
owned the facility.
    (2) If the previous owner and new owner will submit separate 
declarations for the periods of the calendar year during which each 
owned the facility (``part-year declarations''), and if, at the time of 
transfer of ownership, the previous owner's activities are not above 
the declaration thresholds set forth in Sec. Sec.  712.4 and 712.5 of 
the CWCR, the previous owner and the new owner must still submit 
declarations to BIS with the below threshold quantities indicated.
    (3) If the part-year declarations submitted by the previous owner 
and the new owner are not, when combined, above the declaration 
threshold set forth in Sec. Sec.  712.4 and 712.5 of the CWCR, BIS will 
return the declarations without action as set forth in Sec.  712.8 of 
the CWCR.
    (4) If part-year reports are submitted by the previous owner and 
the new owner as required in Sec.  712.5 of the CWCR, BIS will submit 
both reports in the OPCW.
    (ii) Information that must be submitted to BIS by the company 
purchasing a declared facility:
    (A) Name of purchaser (i.e., name of company purchasing a declared 
facility;
    (B) Mailing address of purchaser;
    (C) Name of declaration point of contact (D-POC) for the purchaser, 
including telephone number, facsimile number, and e-mail address;
    (D) Name of inspection points of contact (I-POC) for the purchaser, 
including telephone number(s), facsimile number(s) and e-mail 
address(es);
    (E) Name of the declared facility and U.S. Code Number for that 
facility;
    (F) Location of the declared facility;
    (G) Owner and operator of the declared facility, including 
telephone number, and facsimile number; and
    (H) Details on the next declaration or report submission on whether 
the new owner will submit the declaration or report for the entire 
calendar year during which the ownership change occurred, or whether 
the previous owner and new owner will submit separate declarations or 
reports for the periods of the calendar year during which each owned 
the facility or trading company.
    (1) If the new owner is taking responsibility for submitting the 
declaration or report for the entire current year, it must have in its 
possession the records for the period of the year during which the 
previous owner owned the facility.
    (2) If the previous owner and new owner will submit separate 
declarations for the periods of the calendar year during which each 
owned the facility, and, at the time of transfer of ownership, the 
previous owner's activities are not above the declaration thresholds 
set forth in Sec. Sec.  712.4 and 712.5 of the CWCR, the previous owner 
and the new owner must still submit declarations to BIS with the below 
threshold quantities indicated.
    (3) If the part-year declarations submitted by the previous owner 
and the new owner are not, when combined, above the declaration 
threshold set forth in Sec. Sec.  712.4 and 712.5 of the CWCR, BIS will 
return the declarations without action as set forth in Sec.  712.8 of 
the CWCR.
    (4) If part-year reports are submitted by the previous owner and 
the new owner as required in Sec.  712.5 of the CWCR, BIS will submit 
both reports to the OPCW.

    Note 1 to Sec.  712.7(c): You must submit an amendment to your 
most recently submitted declaration or report for declaring changes 
to internal company information (e.g., company name change) or 
changes in ownership of a facility or trading company that have 
occurred since the submission of this declaration or report. BIS 
will process the amendment to ensure current information is on file 
regarding the facility or trading company (e.g., for inspection 
notifications and correspondence) and will also forward the amended 
declaration to the OPCW to ensure that they also have current 
information on file regarding your facility or trading company.


    Note 2 to Sec.  712.7(c): You may notify BIS of change in 
ownership via a letter to the address given in Sec.  711.6 of the 
CWCR. If you are submitting an amended declaration or report, use 
Form B to address details regarding the sale of the declared 
facility or trading company.


    Note 3 to Sec.  712.7(c): For ownership changes, the declared 
facility or trading company will maintain its original U.S. Code 
Number, unless the facility or trading company is sold to multiple 
owners, at which time BIS will assign new U.S. Code Numbers for the 
new facilities.

    (d) Inspection-related amendments. If, following completion of an 
inspection (see parts 716 and 717 of the CWCR), you are required to 
submit an amended declaration based on the final inspection report, BIS 
will notify you in writing of the information that will be required 
pursuant to Sec. Sec.  716.10 and 717.5 of the CWCR. You must submit an 
amended declaration to BIS no later than 45 days following your receipt 
of the BIS post inspection letter.
    (e) Non-substantive changes. If, subsequent to the submission of 
your declaration or report to BIS, you discover one or more non-
substantive typographical errors in your declaration or report, you are 
not required to submit an amended declaration or report to BIS. 
Instead, you may correct these errors in a subsequent declaration or 
report.

[[Page 70779]]

    (f) Documentation required for amended declarations or reports. If 
you are required to submit an amended declaration or report to BIS 
pursuant to paragraph (a), (b), (c), or (d) of this section, you must 
submit either:
    (1) A letter containing all of the corrected information required, 
in accordance with the provisions of this section, to amend your 
declaration or report; or
    (2) Both of the following:
    (i) A new Certification Form (i.e., Form 1-1); and
    (ii) The specific forms (e.g., annual declaration on past 
activities) containing the corrected information required, in 
accordance with the provisions of this part, to amend your declaration 
or report.


Sec.  712.8  Declarations and reports returned without action by BIS.

    If you submit a declaration or report and BIS determines that the 
information contained therein is not required by the CWCR, BIS will 
return the original declaration or report to you, without action, 
accompanied by a letter explaining BIS's decision. In order to protect 
your confidential business information, BIS will not maintain a copy of 
any declaration or report that is returned without action (RWA). 
However, BIS will maintain a copy of the RWA letter.


Sec.  712.9  Deadlines for submission of Schedule 1 declarations, 
reports, advance notifications, and amendments.

    Declarations, reports, advance notifications, and amendments 
required under this part must be postmarked by the appropriate date 
identified in Supplement No. 2 to this part 712. Required declarations, 
reports, advance notifications, and amendments include:
    (a) Annual declaration on past activities (Schedule 1 chemical 
production during the previous calendar year);
    (b) Annual report on exports and imports of Schedule 1 chemicals 
from facilities, trading companies, and other persons (during the 
previous calendar year);
    (c) Combined declaration and report (production of Schedule 1 
chemicals, as well as exports or imports of the same or different 
Schedule 1 chemicals, by a declared facility during the previous 
calendar year);
    (d) Annual declaration on anticipated activities (anticipated 
production of Schedule 1 chemicals in the next calendar year);
    (e) Advance notification of any export to or import from another 
State Party;
    (f) Initial declaration of a new Schedule 1 chemical production 
facility; and
    (g) Amended declaration or report, including combined declaration 
and report.

           Supplement No. 1 To Part 712--Schedule 1 Chemicals
------------------------------------------------------------------------
                                               (CAS registry number)
------------------------------------------------------------------------
            A. Toxic Chemicals
(1) O-Alkyl (<=C10, incl. cycloalkyl)
 alkyl (Me, Et, n-Pr or i-Pr)-
 phosphonofluoridates:
    e.g. Sarin: O-Isopropyl                (107-44-8)
     methylphosphonofluoridate.
    Soman: O-Pinacolyl                     (96-64-0)
     methylphosphonofluoridate.
(2) O-Alkyl (<=C10, incl. cycloalkyl) N,N-
 dialkyl (Me, Et, n-Pr or i-Pr)
 phosphoramidocyanidates:
    e.g. Tabun: O-Ethyl N,N-dimethyl       (77-81-6)
     phosphoramidocyanidate.
(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-                  (50782-69-9)
     diisopropylaminoethyl methyl
     phosphonothiolate.
(4) Sulfur mustards:
    2-Chloroethylchloromethylsulfide.....  (2625-76-5)
    Mustard gas: Bis(2-                    (505-60-2)
     chloroethyl)sulfide.
    Bis(2-chloroethylthio)methane........  (63869-13-6)
    Sesquimustard: 1,2-Bis(2-              (3563-36-8)
     chloroethylthio)ethane.
    1,3-Bis(2-chloroethylthio)-n-propane.  (63905-10-2)
    1,4-Bis(2-chloroethylthio)-n-butane..  (142868-93-7)
    1,5-Bis(2-chloroethylthio)-n-pentane.  (142868-94-8)
    Bis(2-chloroethylthiomethyl)ether....  (63918-90-1)
    O-Mustard: Bis(2-                      (63918-89-8)
     chloroethylthioethyl)ether.
(5) Lewisites:
    Lewisite 1: 2-                         (541-25-3)
     Chlorovinyldichloroarsine.
    Lewisite 2: Bis(2-                     (40334-69-8)
     chlorovinyl)chloroarsine.
    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-                  (57856-11-8)
     diisopropylaminoethyl
     methylphosphonite.
(11) Chlorosarin: O-Isopropyl              (1445-76-7)
 methylphosphonochloridate.
(12) Chlorosoman: O-Pinacolyl              (7040-57-5)
 methylphosphonochloridate.
------------------------------------------------------------------------
Notes to Supplement No. 1:
Note 1: Note that the following Schedule 1 chemicals are controlled for
  export purposes under the Export Administration Regulations (see part
  774 of the EAR, the Commerce Control List): Saxitoxin (35523-89-8) and
  Ricin (9009-86-3).
Note 2: All Schedule 1 chemicals not listed in Note 1 to this Supplement
  are controlled for export purposes by the Office of Defense Trade
  Control of the Department of State under the International Traffic in
  Arms Regulations (22 CFR parts 120 through 130).


[[Page 70780]]


  Supplement No. 2 to Part 712--Deadlines for Submission of Schedule 1
      Declarations, Advance Notifications, Reports, and Amendments
------------------------------------------------------------------------
    Declarations, advance
  notifications and reports     Applicable forms          Due dates
------------------------------------------------------------------------
Annual Declaration on Past    Certification, 1-1,   February 28th of the
 Activities (previous          1-2, 1-2A, 1-2B, A    year following any
 calendar year)--Declared      (as appropriate), B.  calendar year in
 facility (past production)                          which more than 100
 (optional).                                         grams aggregate of
                                                     Schedule 1
                                                     chemicals were
                                                     produced.
Annual report on exports and  Certification, 1-1,   February 28th of the
 imports (previous calendar    1-3, A (as            year following any
 year) (facility, trading      appropriate), B       calendar year in
 company, other persons).      (optional).           which Schedule 1
                                                     chemicals were
                                                     exported or
                                                     imported.
Combined Declaration and      Certification, 1-1,   February 28th of the
 Report.                       1-2, 1-2A, 1-2B, 1-   year following any
                               3, A (as              calendar year in
                               appropriate), B       which Schedule 1
                               (optional).           chemicals were
                                                     produced, exported,
                                                     or imported.
Annual Declaration on         Certification, 1-1,   September 3rd of the
 Anticipated Activities        1-4, A (as            year prior to any
 (next calendar year).         appropriate), B       calendar year in
                               (optional).           which Schedule 1
                                                     activities are
                                                     anticipated to
                                                     occur.
Advance Notification of any   Notify on             45 calendar days
 export to or import from      letterhead. See       prior to any export
 another State Party.          Sec.   712.6 of the   or import of
                               CWCR.                 Schedule 1
                                                     chemicals, except 3
                                                     days prior to
                                                     export or import of
                                                     5 milligrams or
                                                     less of saxitoxin
                                                     for medical/
                                                     diagnostic
                                                     purposes.
Initial Declaration of a new  Certification, 1-1,   200 calendar days
 Schedule 1 facility           A (as appropriate),   prior to producing
 (technical description).      B (optional).         in excess of 100
                                                     grams aggregate of
                                                     Schedule 1
                                                     chemicals.
Amended Declaration.........   Certification, 1-1,  --15 calendar days
--Chemicals/activities: Sec.   1-2, 1-2A.            after change in
   712.7(a).                                         information
--Company information: Sec.                         --30 calendar days
  712.7(c).                                          after change in
--Post-inspection letter:                            information
 Sec.   712.7(d).                                   --45 calendar days
                                                     after receipt of
                                                     letter
Amended Report Sec.           Certification, 1-1,   --15 calendar days
 712.7(b).                     1-3, A (as            after change in
                               appropriate), B       information
                               (optional.
Combined Declaration &        Certification, 1-1,   --15 calendar days
 Report.                       1-2, 1-2A 1-3, (as    after change in
                               appropriate), B       information
                               (optional).
------------------------------------------------------------------------

PART 713--ACTIVITIES INVOLVING SCHEDULE 2 CHEMICALS

Sec.
713.1 Prohibition on exports and imports of Schedule 2 chemicals to 
and from States not Party to the CWC.
713.2 Annual declaration requirements for plant sites that produce, 
process or consume Schedule 2 chemicals in excess of specified 
thresholds.
713.3 Annual declaration and reporting requirements for exports and 
imports of Schedule 2 chemicals.
713.4 Advance declaration requirements for additionally planned 
production, processing or consumption of Schedule 2 chemicals.
713.5 Amended declaration or report.
713.6 Declarations and reports returned without action by BIS.
713.7 Deadlines for submission of Schedule 2 declarations, reports, 
and amendments.
Supplement No. 1 To Part 713--Scgedyke 2 Chemicals
Supplement No. 2 To Part 713--Deadlines For Submission of Schedule 2 
Declarations, Reports, And Amendments

    Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 
U.S.C. 1701 et seq; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 
950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 
200; E.O. 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. 199.


Sec.  713.1  Prohibition on exports and imports of Schedule 2 chemicals 
to and from States not Party to the CWC.

    (a) You may not export any Schedule 2 chemical (see Supplement No. 
1 to this part) to any destination or import any Schedule 2 chemical 
from any destination other than a State Party to the Convention. See 
Supplement No. 1 to part 710 of this subchapter for a list of States 
that are party to the Convention.

    Note to paragraph (a): See Sec.  742.18 of the Export 
Administration Regulations (15 CFR part 742) for prohibitions that 
apply to exports of Schedule 2 chemicals to States not Party to the 
CWC.

    (b) Paragraph (a) of this section does not apply to:
    (1) The export or import of a Schedule 2 chemical to or from a 
State not Party to the CWC by a department, agency, or other entity of 
the United States, or by any person, including a member of the Armed 
Forces of the United States, who is authorized by law, or by an 
appropriate officer of the United States to transfer or receive the 
Schedule 2 chemical;
    (2) Mixtures containing Schedule 2A chemicals, if the concentration 
of each Schedule 2A chemical in the mixture is 1% or less by weight 
(note, however, that such mixtures may be subject to the regulatory 
requirements of other federal agencies);
    (3) Mixtures containing Schedule 2B chemicals if the concentration 
of each Schedule 2B chemical in the mixture is 10% or less by weight 
(note, however, that such mixtures may be subject to the regulatory 
requirements of other federal agencies); or
    (4) Products identified as consumer goods packaged for retail sale 
for personal use or packaged for individual use.


Sec.  713.2  Annual declaration requirements for plant sites that 
produce, process or consume Schedule 2 chemicals in excess of specified 
thresholds.

    (a) Declaration of production, processing or consumption of 
Schedule 2 chemicals for purposes not prohibited by the CWC.
    (1) Quantities of production, processing or consumption that 
trigger declaration requirements. You must complete the forms specified 
in paragraph (b) of this section if you have been or will be involved 
in the following activities:
    (i) Annual declaration on past activities. (A) You produced, 
processed or consumed at one or more plants on your plant site during 
any of the

[[Page 70781]]

previous three calendar years, a Schedule 2 chemical in excess of any 
of the following declaration threshold quantities:
    (1) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (see 
Schedule 2, paragraph A.3 in Supplement No. 1 to this part);
    (2) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-
2(trifluoromethyl)-1-propene or 100 kilograms of chemical Amiton: 0,0-
Diethyl S-[2-(diethylamino) ethyl] phosphorothiolate and corresponding 
alkylated or protonated salts (see Schedule 2, paragraphs A.1 and A.2 
in Supplement No. 1 to this part); or
    (3) 1 metric ton of any chemical listed in Schedule 2, Part B (see 
Supplement No. 1 to this part).
    (B) In order to trigger a declaration requirement for a past 
activity (i.e., production, processing or consumption) involving a 
Schedule 2 chemical, a plant on your plant site must have exceeded the 
applicable declaration threshold for that particular activity during 
one or more of the previous three calendar years. For example, if a 
plant on your plant site produced 800 kilograms of thiodiglycol and 
consumed 300 kilograms of the same Schedule 2 chemical, during the 
previous calendar year, you would not have a declaration requirement 
based on these activities, because neither activity at your plant would 
have exceeded the declaration threshold of 1 metric ton for that 
Schedule 2 chemical. However, a declaration requirement would apply if 
an activity involving a Schedule 2 chemical at the plant exceeded the 
declaration threshold in an earlier year (i.e., during the course of 
any other calendar year within the past three calendar years), as 
indicated in the example provided in the note to this paragraph.

    Note to paragraph (a)(1)(i)(B): To determine whether or not you 
have an annual declaration on past activities requirement for 
Schedule 2 chemicals, you must determine whether you produced, 
processed or consumed a Schedule 2 chemical above the applicable 
threshold at one or more plants on your plant site in any one of the 
three previous calendar years. For example, for the 2004 annual 
declaration on past activities period, if you determine that one 
plant on your plant site produced greater than 1 kilogram of the 
chemical BZ in calendar year 2002, and no plants on your plant site 
produced, processed or consumed any Schedule 2 chemical above the 
applicable threshold in calendar years 2003 or 2004, you still have 
a declaration requirement under this paragraph for the previous 
calendar year (2004). However, you must only declare on Form 2-3 
(question 2-3.1), production data for calendar year 2004. You would 
declare ``0'' production because you did not produce BZ above the 
applicable threshold in calendar year 2004. Since the plant site did 
not engage in any other declarable activity (i.e., consumption, 
processing) in the 2002-2004 declaration period, you would leave 
blank questions 2-3.2 and 2-3.3 on Form 2-3. Note that declaring a 
``0'' production quantity for 2004, as opposed to leaving the 
question blank, permits BIS to distinguish the activity that 
triggered the declaration requirement from activities that were not 
declarable during that period.

    (ii) Annual declaration on anticipated activities. You anticipate 
that you will produce, process or consume at one or more plants on your 
plant site during the next calendar year, a Schedule 2 chemical in 
excess of the applicable declaration threshold set forth in paragraphs 
(a)(1)(i)(A)(1) through (3) of this section.


    Note to paragraph (a)(1)(ii): A null ``0'' declaration is not 
required if you do not plan to produce, process or consume a 
Schedule 2 chemical in the next calendar year.


    (2) Schedule 2 chemical production. (i) For the purpose of 
determining Schedule 2 production, you must include all steps in the 
production of a chemical in any units within the same plant through 
chemical reaction, including any associated processes (e.g., 
purification, separation, extraction, distillation, or refining) in 
which the chemical is not converted into another chemical. The exact 
nature of any associated process (e.g., purification, etc.) is not 
required to be declared.
    (ii) For the purpose of determining if a Schedule 2 chemical is 
subject to declaration, you must declare an intermediate Schedule 2 
chemical, but not a transient intermediate Schedule 2 chemical.
    (3) Mixtures containing a Schedule 2 chemical. (i) Mixtures that 
must be counted. You must count the quantity of each Schedule 2 
chemical in a mixture, when determining the total quantity of a 
Schedule 2 chemical produced, processed, or consumed at a plant on your 
plant site, if the concentration of each Schedule 2 chemical in the 
mixture is 30% or more by volume or by weight, whichever yields the 
lesser percent. Do not count a Schedule 2 chemical in the mixture that 
represents less than 30% by volume or by weight.
    (ii) How to count the quantity of each Schedule 2 chemical in a 
mixture. If your mixture contains 30% or more concentration of a 
Schedule 2 chemical, you must count the quantity (weight) of each 
Schedule 2 chemical in the mixture, not the total weight of the 
mixture. You must separately declare each Schedule 2 chemical with a 
concentration in the mixture that is 30% or more and exceeds the 
quantity threshold detailed in paragraphs (a)(1)(i)(A)(1) through (3) 
of this section.
    (iii) Determining declaration requirements for production, 
processing and consumption. If the total quantity of a Schedule 2 
chemical produced, processed or consumed at a plant on your plant site, 
including mixtures that contain 30% or more concentration of a Schedule 
2 chemical, exceeds the applicable declaration threshold set forth in 
paragraphs (a)(1)(i)(A)(1) through (3) of this section, you have a 
declaration requirement. For example, if during calendar year 2001, a 
plant on your plant site produced a mixture containing 300 kilograms of 
thiodiglycol in a concentration of 32% and also produced 800 kilograms 
of thiodiglycol, the total amount of thiodiglycol produced at that 
plant for CWCR purposes would be 1100 kilograms, which exceeds the 
declaration threshold of 1 metric ton for that Schedule 2 chemical. You 
must declare past production of thiodiglycol at that plant site for 
calendar year 2001. If, on the other hand, a plant on your plant site 
processed a mixture containing 300 kilograms of thiodiglycol in a 
concentration of 25% and also processed 800 kilograms of thiodiglycol 
in other than mixture form, the total amount of thiodiglycol processed 
at that plant for CWCR purposes would be 800 kilograms and would not 
trigger a declaration requirement. This is because the concentration of 
thiodiglycol in the mixture is less than 30% and therefore did not have 
to be ``counted'' and added to the other 800 kilograms of processed 
thiodiglycol at that plant.
    (b) Types of declaration forms to be used. (1) Annual declaration 
on past activities. You must complete the Certification Form and Forms 
2-1, 2-2, 2-3, 2-3A, and Form A if one or more plants on your plant 
site produced, processed or consumed more than the applicable threshold 
quantity of a Schedule 2 chemical described in paragraphs 
(a)(1)(i)(A)(1) through (3) of this section in any of the three 
previous calendar years. Form B is optional. If you are subject to 
annual declaration requirements, you must include data for the previous 
calendar year only.
    (2) Annual declaration on anticipated activities. You must complete 
the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A, 2-3C, and Form A 
if you plan to produce, process, or consume at any plant on your plant 
site a Schedule 2 chemical above the applicable threshold set forth in 
paragraphs (a)(1)(i)(A)(1) through (3) of this section during the 
following calendar year. Form B is optional.

[[Page 70782]]

    (c) Quantities to be declared. (1) Production, processing and 
consumption of a Schedule 2 chemical above the declaration threshold.
    (i) Annual declaration on past activities. If you are required to 
complete forms pursuant to paragraph (a)(1)(i) of this section, you 
must declare the aggregate quantity resulting from each type of 
activity (production, processing or consumption) from each plant on 
your plant site that exceeds the applicable threshold for that Schedule 
2 chemical. Do not include in these aggregate production, processing, 
and consumption quantities any data from plants on the plant site that 
did not individually produce, process or consume a Schedule 2 chemical 
in amounts greater than the applicable threshold. For example, if a 
plant on your plant site produced a Schedule 2 chemical in an amount 
greater than the applicable declaration threshold during the previous 
calendar year, you would have to declare only the production quantity 
from that plant, provided that the total amount of the Schedule 2 
chemical processed or consumed at the plant did not exceed the 
applicable declaration threshold during any one of the previous three 
calendar years. If in the previous calendar year your production, 
processing and consumption activities all were below the applicable 
declaration threshold, but your declaration requirement is triggered 
because of production activities occurring in an earlier year, you 
would declare ``0'' only for the declared production activities.
    (ii) Annual declaration on anticipated activities. If you are 
required to complete forms pursuant to paragraph (a)(1)(ii) of this 
section, you must declare the aggregate quantity of any Schedule 2 
chemical that you plan to produce, process or consume at any plant(s) 
on your plant site above the applicable thresholds set forth in 
paragraphs (a)(1)(i)(A)(1) through (3) of this section during the next 
calendar year. Do not include in these anticipated aggregate 
production, processing, and consumption quantities any data from plants 
on the plant site that you do not anticipate will individually produce, 
process or consume a Schedule 2 chemical in amounts greater than the 
applicable thresholds.
    (2) Rounding. For the chemical BZ, report quantities to the nearest 
hundredth of a kilogram (10 grams). For PFIB and the Amiton family, 
report quantities to the nearest 1 kilogram. For all other Schedule 2 
chemicals, report quantities to the nearest 10 kilograms.
    (d) ``Declared'' Schedule 2 plant site. A plant site that submitted 
a declaration pursuant to paragraph (a)(1) of this section is a 
``declared'' plant site.
    (e) Declared Schedule 2 plant sites subject to initial and routine 
inspections. A ``declared'' Schedule 2 plant site is subject to initial 
and routine inspection by the Organization for the Prohibition of 
Chemical Weapons if it produced, processed or consumed in any of the 
three previous calendar years, or is anticipated to produce, process or 
consume in the next calendar year, in excess of ten times the 
applicable declaration threshold set forth in paragraphs 
(a)(1)(i)(A)(1) through (3) of this section (see part 716 of this 
subchapter). A ``declared'' Schedule 2 plant site that has received an 
initial inspection is subject to routine inspection.


Sec.  713.3  Annual declaration and reporting requirements for exports 
and imports of Schedule 2 chemicals.

    (a) Declarations and reports of exports and imports of Schedule 2 
chemicals. (1) Declarations. A Schedule 2 plant site that is declared 
because it produced, processed or consumed a Schedule 2 chemical at one 
or more plants above the applicable threshold set forth in paragraph 
(b) of this section, and also exported from or imported to the plant 
site that same Schedule 2 chemical above the applicable threshold, must 
submit export and import information as part of its declaration.
    (2) Reports. The following persons must submit a report if they 
individually exported or imported a Schedule 2 chemical above the 
applicable threshold indicated in paragraph (b) of this section:
    (i) A declared plant site that exported or imported a Schedule 2 
chemical that was different than the Schedule 2 chemical produced, 
processed or consumed at one or more plants at the plant site above the 
applicable declaration threshold ;
    (ii) An undeclared plant site;
    (iii) A trading company; or
    (iv) Any other person subject to the CWCR.


    Note to paragraphs (a)(1) and (a)(2)(i): A declared Schedule 2 
plant site may need to declare exports or imports of Schedule 2 
chemicals that it produced, processed or consumed above the 
applicable threshold and also report exports or imports of different 
Schedule 2 chemicals that it did not produce, process or consume 
above the applicable threshold quantities. The report may be 
submitted to BIS either with or separately from the annual 
declaration on past activities (see Sec.  713.3(d) of the CWCR).



    Note to paragraph (a)(2): The U.S. Government will not submit to 
the OPCW company-specific information relating to the export or 
import of Schedule 2 chemicals contained in reports. The U.S. 
Government will add all export and import information contained in 
reports to export and import information contained in declarations 
to establish the U.S. national aggregate declaration on exports and 
imports.



    Note to paragraphs (a)(1) and (2): Declared and undeclared plant 
sites must count, for declaration or report purposes, all exports 
from and imports to the entire plant site, not only from or to 
individual plants on the plant site.


    (b) Quantities of exports or imports that trigger a declaration or 
report requirement. (1) You have a declaration or report requirement 
and must complete the forms specified in paragraph (d) of this section 
if you exported or imported a Schedule 2 chemical in excess of the 
following threshold quantities:
    (i) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (See 
Schedule 2, paragraph A.3 included in Supplement No. 1 to this part);
    (ii) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-
2(trifluoromethyl)-1-propene or 100 kilograms of Amiton : O,O Diethyl 
S-[2(diethylamino)ethyl] phosphorothiolate and corresponding alkylated 
or protonated salts (see Schedule 2, paragraphs A.1 and A.2 included in 
Supplement No.1 to this part); or
    (iii) 1 metric ton of any chemical listed in Schedule 2, Part B 
(see Supplement No.1 to this part).
    (2) Mixtures containing a Schedule 2 chemical. The quantity of each 
Schedule 2 chemical contained in a mixture must be counted for the 
declaration or reporting of an export or import only if the 
concentration of each Schedule 2 chemical in the mixture is 30% or more 
by volume or by weight, whichever yields the lesser percent. You must 
declare separately each Schedule 2 chemical whose concentration in the 
mixture is 30% or more.


    Note 1 to paragraph (b)(2): See Sec.  713.2(a)(2)(ii) for 
information on counting amounts of Schedule 2 chemicals contained in 
mixtures and determining declaration and report requirements.


    Note 2 to paragraph (b)(2): The ``30% and above'' mixtures rule 
applies only for declaration and report purposes. This rule does not 
apply for purposes of determining whether the export of your mixture 
to a non-State Party requires an End-Use Certificate or for 
determining whether you need an export license from BIS (see Sec.  
742.2, Sec.  742.18 and Sec.  745.2 of the Export Administration 
Regulations) or from the Department of State (see the International 
Traffic in Arms Regulations (22 CFR parts 120 through130)).



[[Page 70783]]


    (c) Declaration and report requirements. (1) Annual declaration on 
past activities. A plant site described in paragraph (a)(1) that has an 
annual declaration requirement for production, processing, or 
consumption of a Schedule 2 chemical for the previous calendar year 
also must declare the export and/or import of that same Schedule 2 
chemical if the amount exceeded the applicable threshold set forth in 
paragraph (b) of this section. The plant site must declare such export 
or import information as part of its annual declaration of past 
activities.
    (2) Annual report on exports and imports. Declared plant sites 
described in paragraph (a)(2)(i) of this section, and undeclared plant 
sites, trading companies or any other person (described in paragraphs 
(a)(2)(ii) through (iv) of this section) subject to the CWCR that 
exported or imported a Schedule 2 chemical in a previous calendar year 
in excess of the applicable thresholds set forth in paragraph (b) of 
this section must submit an annual report on such exports or imports.
    (d) Types of declaration and report forms to be used. (1) Annual 
declaration on past activities. If you are a declared Schedule 2 plant 
site, as described in paragraph (a)(1) of this section, you must 
complete Form 2-3B, in addition to the forms required by Sec.  
713.2(b)(1) of the CWCR, for each declared Schedule 2 chemical exported 
or imported above the applicable threshold in the previous calendar 
year.
    (2) Annual report on exports and imports. (i) If you are a declared 
plant site, as described in paragraph (a)(2)(i) of this section, you 
may fulfill your annual reporting requirements by:
    (A) Submitting, with your annual declaration on past activities, a 
Form 2-3B for each Schedule 2 chemical you exported or imported above 
the applicable threshold. Attach Form A, as appropriate; Form B is 
optional; or
    (B) Submitting, separately from your annual declaration on past 
activities, a Certification Form, Form 2-1, and Form 2-3B for each 
Schedule 2 chemical you exported or imported above the applicable 
threshold. Attach Form A, as appropriate; Form B is optional.
    (ii) If you are an undeclared plant site, trading company or any 
other person subject to the CWCR, you must complete the Certification 
Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported 
or imported above the applicable threshold. Attach Form A, as 
appropriate; Form B is optional.
    (e) Quantities to be declared. (1) Calculations. If you exported 
from or imported to your plant site, trading company, or other location 
more than the applicable threshold of a Schedule 2 chemical in the 
previous calendar year, you must declare or report all exports and 
imports of that chemical by country of destination or country of 
origin, respectively, and indicate the total amount exported to or 
imported from each country.
    (2) Rounding. For purposes of declaring or reporting exports and 
imports of a Schedule 2 chemical, you must total all exports and 
imports per calendar year per recipient or source and then round as 
follows: for the chemical BZ, the total quantity for each country of 
destination or country of origin (source) should be reported to the 
nearest hundredth of a kilogram (10 grams); for PFIB and Amiton and 
corresponding alkylated or protonated salts, the quantity for each 
destination or source should be reported to the nearest 1 kilogram; and 
for all other Schedule 2 chemicals, the total quantity for each 
destination or source should be reported to the nearest 10 kilograms.


Sec.  713.4  Advance declaration requirements for additionally planned 
production, processing, or consumption of Schedule 2 chemicals.

    (a) Declaration requirements for additionally planned activities. 
(1) You must declare additionally planned production, processing, or 
consumption of Schedule 2 chemicals after the annual declaration on 
anticipated activities for the next calendar year has been delivered to 
BIS if:
    (i) You plan that a previously undeclared plant on your plant site 
under Sec.  713.2(a)(1)(ii) will produce, process, or consume a 
Schedule 2 chemical above the applicable declaration threshold;
    (ii) You plan to produce, process, or consume at a plant declared 
under Sec.  713.2(a)(1)(ii) an additional Schedule 2 chemical above the 
applicable declaration threshold;
    (iii) You plan an additional activity (production, processing, or 
consumption) at your declared plant above the applicable declaration 
threshold for a chemical declared under Sec.  713.2(a)(1)(ii);
    (iv) You plan to increase the production, processing, or 
consumption of a Schedule 2 chemical by a plant declared under Sec.  
713.2(a)(1)(ii) from the amount exceeding the applicable declaration 
threshold to an amount exceeding the applicable inspection threshold 
(see Sec.  716.1(b)(2) of the CWCR);
    (v) You plan to change the starting or ending date of anticipated 
production, processing, or consumption declared under Sec.  
713.2(a)(1)(ii) by more than three months; or
    (vi) You plan to increase your production, processing, or 
consumption of a Schedule 2 chemical by a declared plant site by 20 
percent or more above that declared under Sec.  713.2(a)(1)(ii).
    (2) If you must submit a declaration on additionally planned 
activities because you plan to engage in any of the activities listed 
in paragraphs (a)(1)(i) through (vi) of this section, you also should 
declare changes to your declaration relating to the following 
activities. You do not have to submit an additionally planned 
declaration if you are only changing the following non-quantitative 
activities:
    (i) Changes to the plant's production capacity;
    (ii) Changes or additions to the product group codes for the plant 
site or the plant(s);
    (iii) Changes to the plant's activity status (i.e., dedicated, 
multipurpose, or other status);
    (iv) Changes to the plant's multipurpose activities;
    (v) Changes to the plant site's status relating to domestic 
transfer of the chemical;
    (vi) Changes to the plant site's purposes for which the chemical 
will be produced, processed or consumed; or
    (vii) Changes to the plant site's status relating to exports of the 
chemical or the addition of new countries for export.
    (b) Declaration forms to be used. If you are required to declare 
additionally planned activities pursuant to paragraph (a) of this part, 
you must complete the Certification Form and Forms 2-1, 2-2, 2-3, and 
2-3C as appropriate. Such forms are due to BIS at least 15 days prior 
to beginning the additional activity.


Sec.  713.5  Amended declaration or report.

    In order for BIS to maintain accurate information on previously 
submitted plant site declarations, including information necessary to 
facilitate inspection notifications and activities or to communicate 
declaration or report requirements, amended declarations or reports 
will be required under the circumstances described in this section. 
This section applies only to annual declarations on past activities 
submitted for the three previous calendar years, annual reports on 
exports and imports for the previous calendar year or annual 
declarations on anticipated activities covering the current calendar 
year, unless specified otherwise in a final inspection report.
    (a) Changes to information that directly affect inspection of a 
declared plant site's Annual Declaration of Past

[[Page 70784]]

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

[[Page 70785]]

occurred, or whether the previous owner and new owner will submit 
separate declarations or reports for the periods of the calendar year 
during which each owned the plant site or trading company.


    Note 1 to Sec.  713.5(c): You must submit an amendment to your 
most recently submitted declaration or report for declaring changes 
to internal company information (e.g., company name change) or 
changes in ownership of a facility or trading company that have 
occurred since the submission of this declaration or report. BIS 
will process the amendment to ensure current information is on file 
regarding the facility or trading company (e.g., for inspection 
notifications and correspondence) and will also forward the amended 
declaration to the OPCW to ensure that they also have current 
information on file regarding your facility or trading company.


    Note 2 to Sec.  713.5(c): You may notify BIS of change in 
ownership via a letter to the address given in Sec.  711.6 of the 
CWCR. If you are submitting an amended declaration or report, use 
Form B to address details regarding the sale of the declared plant 
site or trading company.


    Note 3 to Sec.  713.5(c): For ownership changes, the declared 
facility or trading company will maintain its original U.S. Code 
Number, unless the plant site or trading company is sold to multiple 
owners, at which time BIS will assign new U.S. Code Numbers.


    (d) Inspection-related amendments. If, following the completion of 
an inspection (see parts 716 and 717 of the CWCR), you are required to 
submit an amended declaration based on the final inspection report, BIS 
will notify you in writing of the information that will be required 
pursuant to Sec. Sec.  716.10 and 717.5 of the CWCR. You must submit an 
amended declaration to BIS no later than 45 days following your receipt 
of BIS's post inspection letter.
    (e) Non-substantive changes. If, subsequent to the submission of 
your declaration or report to BIS, you discover one or more non-
substantive typographical errors in your declaration or report, you are 
not required to submit an amended declaration or report to BIS. 
Instead, you may correct these errors in a subsequent declaration or 
report.
    (f) Documentation required for amended declarations or reports. If 
you are required to submit an amended declaration or report to BIS 
pursuant to paragraph (a), (b), (c), or (d) of this section, you must 
submit either:
    (1) A letter containing all of the corrected information required, 
in accordance with the provisions of this section, to amend your 
declaration or report; or
    (2) Both of the following:
    (i) A new Certification Form; and
    (ii) The specific forms required for the declaration or report type 
being amended (e.g., annual declaration on past activities) containing 
the corrected information required, in accordance with the requirements 
of this section, to amend your declaration or report.


Sec.  713.6  Declarations and reports returned without action by BIS.

    If you submit a declaration or report and BIS determines that the 
information contained therein is not required by the CWCR, BIS will 
return the original declaration or report to you, without action, 
accompanied by a letter explaining BIS's decision. In order to protect 
your confidential business information, BIS will not maintain a copy of 
any declaration or report that is returned without action (RWA). 
However, BIS will maintain a copy of the RWA letter.


Sec.  713.7  Deadlines for submission of Schedule 2 declarations, 
reports, and amendments.

    Declarations, reports, and amendments required under this part must 
be postmarked by the appropriate date identified in Supplement No. 2 to 
this part 713. Required declarations, reports, and amendments include:
    (a) Annual declaration on past activities (production, processing, 
or consumption) of Schedule 2 chemicals during the previous calendar 
year);
    (b) Annual report on exports and imports of Schedule 2 chemicals by 
plant sites, trading companies, and other persons subject to the CWCR 
(during the previous calendar year);
    (c) Combined declaration and report (production, processing, or 
consumption of Schedule 2 chemicals, as well as exports or imports of 
the same or different Schedule 2 chemicals, by a declared plant site 
during the previous calendar year);
    (d) Annual declaration on anticipated activities (production, 
processing or consumption) involving Schedule 2 chemicals during the 
next calendar year;
    (e) Declaration on Additionally Planned Activities (production, 
processing or consumption) involving Schedule 2 chemicals; and
    (f) Amended declaration and report, including combined declaration 
and report.

           Supplement No. 1 to Part 713--Schedule 2 Chemicals
------------------------------------------------------------------------
                                               (CAS registry number)
------------------------------------------------------------------------
            A. Toxic Chemicals
 
(1) Amiton: O,O-Diethyl S-[2-              (78-53-5) and corresponding
 (diethylamino)ethyl] phosphorothiolate.    alkylated or protonated
                                            salts
(2) PFIB: 1,1,3,3,3-Pentafluoro-2-         (382-21-8)
 (trifluoromethyl)-1-propene.
(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       (944-22-9)
 ethylphosphono-thiolothionate.
(5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
 phosphoramidic dihalides.
(6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-
 dialkyl (Me, Et, n-Pr or i-Pr)-
 phosphoramidates.
(7) Arsenic trichloride..................  (7784-34-1)
(8) 2,2-Diphenyl-2-hydroxyacetic acid....  (76-93-7)
(9) Quinuclidine-3-ol....................  (1619-34-7)
(10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
 aminoethyl-2-chlorides and corresponding
 protonated salts.

[[Page 70786]]

 
(11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
 aminoethane-2-ols and corresponding
 protonated salts.
    Exemptions: N,N-Dimethylaminoethanol   (108-01-0)
     and corresponding protonated salts.
    N,N-Diethylaminoethanol and            (100-37-8)
     corresponding protonated salts.
(12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
 aminoethane-2-thiols and corresponding
 protonated salts.
(13) Thiodiglycol: Bis(2-                  (111-48-8)
 hydroxyethyl)sulfide.
(14) Pinacolyl alcohol: 3,3-               (464-07-3)
 Dimethylbutane-2-ol.
------------------------------------------------------------------------
Notes to Supplement No. 1
Note 1: Note that the following Schedule 2 chemicals are controlled for
  export purposes by the Office of Defense Trade Control of the
  Department of State under the International Traffic in Arms
  Regulations (22 CFR parts 120 through 130): 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).
Note 2: All Schedule 2 chemicals not listed in Note 1 to this Supplement
  are controlled for export purposes under the Export Administration
  Regulations (see part 774 of the EAR, the Commerce Control List).


  Supplement No. 2 to Part 713--Deadlines for Submission of Schedule 2
                  Declarations, Reports, and Amendments
------------------------------------------------------------------------
  Declarations and reports      Applicable forms          Due dates
------------------------------------------------------------------------
Annual Declaration on Past    Certification, 2-1,   February 28 of the
 Activities (previous          2-2, 2-3, 2-3A, 2-    year following any
 calendar year).               3B (if also           calendar year in
Declared plant site            exported or           which the
 (production, processing, or   imported), A (as      production,
 consumption)..                appropriate), B       processing, or
                               (optional).           consumption of a
                                                     Schedule 2 chemical
                                                     exceeded the
                                                     applicable
                                                     declaration
                                                     thresholds in Sec.
                                                      713.2(a)(1)(i) of
                                                     the CWCR.
Annual Report on Exports and  Certification, 2-1,   February 28 of the
 Imports (previous calendar    2-3B, A (as           year following any
 year).                        appropriate), B       calendar year in
Plant site, trading company,   (optional).           which exports or
 other persons..                                     imports of a
                                                     Schedule 2 chemical
                                                     by a plant site,
                                                     trading company, or
                                                     other person
                                                     subject to the CWCR
                                                     (as described in
                                                     Sec.   713.3(a)(2)
                                                     of the CWCR)
                                                     exceeded the
                                                     applicable
                                                     thresholds in Sec.
                                                      713.3(b)(1) of the
                                                     CWCR.
Combined Declaration &        Certification, 2-1,   February 28 of the
 Report.                       2-2, 2-3, 2-3A, 2-    year following any
Declared plant site            3B, A (as             calendar year in
 (production, processing, or   appropriate), B       which the
 consumption; exports and      (optional).           production,
 imports)..                                          processing, or
                                                     consumption of a
                                                     Schedule 2 chemical
                                                     and the export or
                                                     import of the same
                                                     or a different
                                                     Schedule 2 chemical
                                                     by a declared plant
                                                     site exceeded the
                                                     applicable
                                                     thresholds in Sec.
                                                     Sec.
                                                     713.2(a)(1)(i) and
                                                     713.3(b)(1),
                                                     respectively, of
                                                     the CWCR.
Annual Declaration on         Certification, 2-1,   September 3 of the
 Anticipated Activities        2-2, 2-3, 2-3A, 2-    year prior to any
 (next calendar year).         3C, A (as             calendar year in
                               appropriate), B       which Schedule 2
                               (optional).           activities are
                                                     anticipated to
                                                     occur.
Declaration on Additionally   Certification, 2-1,   15 calendar days
 Planned Activities            2-2, 2-3, 2-3A, 2-    before the
 (production, processing and   3C, A (as             additionally
 consumption).                 appropriate), B       planned activity
                               (optional).           begins.
Amended Declaration:
    --Declaration             Certification, 2-1,   --15 calendar days
     information.              2-2, 2-3, 2-3A, 2-    after change in
    --Company information...   3B (if also           information
    --Post-inspection letter   exported or          --30 calendar days
                               imported), A (as      after change in
                               appropriate), B       information
                               (optional).          --45 calendar days
                                                     after receipt of
                                                     letter
Amended Report..............  Certification, 2-1,   --15 calendar days
                               2-3B, A (as           after change in
                               appropriate), B       information
                               (optional).
Amended Combined Declaration  Certification, 2-1,   --15 calendar days
 & Report.                     2-2, 2-3, 2-3A, 2-    after change in
                               3B, A (as             information
                               appropriate), B
                               (optional).
------------------------------------------------------------------------

PART 714--ACTIVITIES INVOLVING SCHEDULE 3 CHEMICALS

Sec.
714.1 Annual declaration requirements for plant sites that produce a 
Schedule 3 chemical in excess of 30 metric tons.
714.2 Annual reporting requirements for exports and imports in 
excess of 30 metric tons of Schedule 3 chemicals.
714.3 Advance declaration requirements for additionally planned 
production of Schedule 3 chemicals.
714.4 Amended declaration or report.
714.5 Declarations and reports returned without action by BIS.
714.6 Deadlines for submission of Schedule 3 declarations, reports, 
and amendments.
Supplement No. 1 to Part 714--Schedule 3 Chemicals
Supplement No. 2 to Part 714--Deadlines for Submission of Schedule 3 
Declarations, Reports, and Amendments

    Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 
CFR, 1999 Comp., p. 199.


Sec.  714.1  Annual declaration requirements for plant sites that 
produce a Schedule 3 chemical in excess of 30 metric tons.

    (a) Declaration of production of Schedule 3 chemicals for purposes 
not

[[Page 70787]]

prohibited by the CWC. (1) Production quantities that trigger the 
declaration requirement. You must complete the appropriate forms 
specified in paragraph (b) of this section if you have produced or 
anticipate producing a Schedule 3 chemical (see Supplement No. 1 to 
this part) as follows:
    (i) Annual declaration on past activities. You produced at one or 
more plants on your plant site in excess of 30 metric tons of any 
single Schedule 3 chemical during the previous calendar year.
    (ii) Annual declaration on anticipated activities. You anticipate 
that you will produce at one or more plants on your plant site in 
excess of 30 metric tons of any single Schedule 3 chemical in the next 
calendar year.
    (2) Schedule 3 chemical production. (i) For the purpose of 
determining Schedule 3 production, you must include all steps in the 
production of a chemical in any units within the same plant through 
chemical reaction, including any associated processes (e.g., 
purification, separation, extraction, distillation, or refining) in 
which the chemical is not converted into another chemical. The exact 
nature of any associated process (e.g., purification, etc.) is not 
required to be declared.
    (ii) For the purpose of determining if a Schedule 3 chemical is 
subject to declaration, you must declare an intermediate Schedule 3 
chemical, but not a transient intermediate Schedule 3 chemical.
    (3) Mixtures containing a Schedule 3 chemical. (i) When you must 
count the quantity of a Schedule 3 chemical in a mixture for 
declaration purposes. The quantity of each Schedule 3 chemical 
contained in a mixture must be counted for declaration purposes only if 
the concentration of each Schedule 3 chemical in the mixture is 80% or 
more by volume or by weight, whichever yields the lesser percent.
    (ii) How to count the amount of a Schedule 3 chemical in a mixture. 
If your mixture contains 80% or more concentration of a Schedule 3 
chemical, you must count only the amount (weight) of the Schedule 3 
chemical in the mixture, not the total weight of the mixture.
    (b) Types of declaration forms to be used. (1) Annual declaration 
on past activities. You must complete the Certification Form and Forms 
3-1, 3-2, 3-3, and Form A if one or more plants on your plant site 
produced in excess of 30 metric tons of any single Schedule 3 chemical 
during the previous calendar year. Form B is optional.
    (2) Annual declaration on anticipated activities. You must complete 
the Certification Form, and Forms 3-1 and 3-3 if you anticipate that 
you will produce at one or more plants on your plant site in excess of 
30 metric tons of any single Schedule 3 chemical in the next calendar 
year.
    (c) Quantities to be declared. (1) Production of a Schedule 3 
chemical in excess of 30 metric tons. If your plant site is subject to 
the declaration requirements of paragraph (a) of this section, you must 
declare the range within which the production at your plant site falls 
(30 to 200 metric tons, 200 to 1,000 metric tons, etc.) as specified on 
Form 3-3. When specifying the range of production for your plant site, 
you must aggregate the production quantities of all plants on the plant 
site that produced the Schedule 3 chemical in amounts greater than 30 
metric tons. Do not aggregate amounts of production from plants on the 
plant site that did not individually produce a Schedule 3 chemical in 
amounts greater than 30 metric tons. You must complete a separate Form 
3-3 for each Schedule 3 chemical for which production at your plant 
site exceeds 30 metric tons.
    (2) Rounding. To determine the production range into which your 
plant site falls, add all the production of the declared Schedule 3 
chemical during the calendar year from all plants on your plant site 
that produced the Schedule 3 chemical in amounts exceeding 30 metric 
tons, and round to the nearest ten metric tons.
    (d) ``Declared'' Schedule 3 plant site. A plant site that submitted 
a declaration pursuant to paragraph (a)(1) of this section is a 
``declared'' Schedule 3 plant site.
    (e) Routine inspections of declared Schedule 3 plant sites. A 
``declared'' Schedule 3 plant site is subject to routine inspection by 
the Organization for the Prohibition of Chemical Weapons (see part 716 
of the CWCR) if:
    (1) The declared plants on your plant site produced in excess of 
200 metric tons aggregate of any Schedule 3 chemical during the 
previous calendar year; or
    (2) You anticipate that the declared plants on your plant site will 
produce in excess of 200 metric tons aggregate of any Schedule 3 
chemical during the next calendar year.


Sec.  714.2  Annual reporting requirements for exports and imports in 
excess of 30 metric tons of Schedule 3 chemicals.

    (a) Any person subject to the CWCR that exported from or imported 
into the United States in excess of 30 metric tons of any single 
Schedule 3 chemical during the previous calendar year has a reporting 
requirement under this section.
    (1) Annual report on exports and imports. Declared plant sites, 
undeclared plant sites, trading companies, or any other person subject 
to the CWCR that exported from or imported into the United States in 
excess of 30 metric tons of any single Schedule 3 chemical during the 
previous calendar year must submit an annual report on exports and 
imports.


    Note 1 to paragraph (a)(1): Declared and undeclared plant sites 
must count, for report purposes, all exports from and imports to the 
entire plant site, not only from or to individual plants on the 
plant site.


    Note 2 to paragraph (a)(1): The U.S. Government will not submit 
to the OPCW company-specific information relating to the export or 
import of Schedule 3 chemicals contained in reports. The U.S. 
Government will add all export and import information contained in 
reports to establish the U.S. national aggregate declaration on 
exports and imports.


    (2) Mixtures containing a Schedule 3 chemical. The quantity of a 
Schedule 3 chemical contained in a mixture must be counted for 
reporting an export or import only if the concentration of the Schedule 
3 chemical in the mixture is 80% or more by volume or by weight, 
whichever yields the lesser percent. For reporting purposes, only count 
the weight of the Schedule 3 chemical in the mixture, not the entire 
weight of the mixture.


    Note to paragraph (a)(2): The ``80% and above'' mixtures rule 
applies only for report purposes. This rule does not apply for 
purposes of determining whether the export of your mixture to a non-
State Party requires an End-Use Certificate or for determining 
whether you need an export license from BIS (see 15 CFR 742.2, 
742.18 and 745.2 of the Export Administration Regulations) or from 
the Department of State (see the International Traffic in Arms 
Regulations (22 CFR parts 120 through 130)).


    (b) Types of forms to be used. (1) Declared Schedule 3 plant sites. 
(i) If your plant site is declared for production of a Schedule 3 
chemical (and has completed questions 3-3.1 and 3-3.2 on Form 3-3) and 
you also exported from or imported to your plant site in excess of 30 
metric tons of that same Schedule 3 chemical, you must report the 
export or import by either:
    (A) Completing question 3-3.3 on Form 3-3 on your declaration for 
that same Schedule 3 chemical; or
    (B) Submitting, separately from your declaration, a Certification 
Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be 
reported, completing

[[Page 70788]]

only question 3-3.3. Attach Form A, as appropriate; Form B is optional.
    (ii) If your plant site is declared for production of a Schedule 3 
chemical and you exported or imported in excess of 30 metric tons of a 
different Schedule 3 chemical, you must report the export or import by 
either:
    (A) Submitting, along with your declaration, a Form 3-3 for each 
Schedule 3 chemical to be reported, completing only question 3-3.3. 
Attach Form A, as appropriate; Form B is optional; or
    (B) Submitting, separately from your declaration, a Certification 
Form, Form 3-1 and a Form 3.3 for each Schedule 3 chemical to be 
reported, completing only question 3-3.3. Attach Form A, as 
appropriate; Form B is optional.
    (2) If you are an undeclared plant site, a trading company, or any 
other person subject to the CWCR, you must submit a Certification Form, 
Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, 
completing only question 3-3.3. Attach Form A, as appropriate; Form B 
is optional.
    (c) Quantities to be reported. (1) Calculations. If you exported 
from or imported to your plant site or trading company more than 30 
metric tons of a Schedule 3 chemical in the previous calendar year, you 
must report all exports and imports of that chemical by country of 
destination or country of origin, respectively, and indicate the total 
amount exported to or imported from each country.
    (2) Rounding. For purposes of reporting exports and imports of a 
Schedule 3 chemical, you must total all exports and imports per 
calendar year per recipient or source and then round to the nearest 0.1 
metric tons.


    Note to Sec.  714.2(c): Under the Convention, the United States 
is obligated to provide the OPCW a national aggregate annual 
declaration of the quantities of each Schedule 3 chemical exported 
and imported. The U.S. Government will not submit your company-
specific information relating to the export or import of a Schedule 
3 chemical reported under this Sec.  714.2. The U.S. Government will 
add all export and import information submitted by various 
facilities under this section to produce a national aggregate annual 
declaration of destination-by-destination trade for each Schedule 3 
chemical.

Sec.  714.3  Advance declaration requirements for additionally planned 
production of Schedule 3 chemicals.

    (a) Declaration requirements. (1) You must declare additionally 
planned production of Schedule 3 chemicals after the annual declaration 
on anticipated activities for the next calendar year has been delivered 
to BIS if:
    (i) You plan that a previously undeclared plant on your plant site 
under Sec.  714.1(a)(1)(ii) will produce a Schedule 3 chemical above 
the declaration threshold;
    (ii) You plan to produce at a plant declared under Sec.  
714.1(a)(1)(ii) an additional Schedule 3 chemical above the declaration 
threshold;
    (iii) You plan to increase the production of a Schedule 3 chemical 
by declared plants on your plant site from the amount exceeding the 
applicable declaration threshold to an amount exceeding the applicable 
inspection threshold (see Sec.  716.1(b)(3) of the CWCR); or
    (iv) You plan to increase the aggregate production of a Schedule 3 
chemical at a declared plant site to an amount above the upper limit of 
the range previously declared under Sec.  714.1(a)(1)(ii).
    (2) If you must submit a declaration on additionally planned 
activities because you plan to engage in any of the activities listed 
in paragraphs (a)(1)(i) through (iv) of this section, you also should 
declare any changes to the anticipated purposes of production or 
product group codes. You do not have to submit a declaration on 
additionally planned activities if you are only changing your purposes 
of production or product group codes.
    (b) Declaration forms to be used. If you are required to declare 
additionally planned activities pursuant to paragraph (a) of this 
section, you must complete the Certification Form and Forms 3-1, 3-2, 
and 3-3 as appropriate. Such forms are due to BIS at least 15 days in 
advance of the beginning of the additional or new activity.


Sec.  714.4  Amended declaration or report.

    In order for BIS to maintain accurate information on previously 
submitted plant site declarations, including information necessary to 
facilitate inspection notifications and activities or to communicate 
declaration or report requirements, amended declarations or reports 
will be required under the following circumstances described in this 
section. This section applies only to annual declarations on past 
activities and annual reports on exports and imports submitted for the 
previous calendar year or annual declarations on anticipated activities 
covering the current calendar year, unless specified otherwise in a 
final inspection report.
    (a) Changes to information that directly affects a declared plant 
site's Annual Declaration of Past Activities (ADPA) or Combined Annual 
Declaration or Report which was previously submitted to BIS. You must 
submit an amended declaration or report to BIS within 15 days of any 
change in the following information:
    (1) Types of Schedule 3 chemicals produced (e.g., production of 
additional Schedule 3 chemicals);
    (2) Production range (e.g., from 30 to 200 metric tons to above 200 
to 1000 metric tons) of Schedule 3 chemicals;
    (3) Purpose of Schedule 3 chemical production (e.g., additional 
end-uses); and
    (4) Addition of new plant(s) for production of Schedule 3 
chemicals.
    (b) Changes to export or import information submitted in Annual 
Reports on Exports and Imports from undeclared plant sites, trading 
companies and U.S. persons. You must submit an amended report or 
amended combined declaration and report to BIS within 15 days of any 
change in the following export or import information:
    (1) Types of Schedule 3 chemicals exported or imported (additional 
Schedule 3 chemicals);
    (2) Quantities of Schedule 3 chemicals exported or imported;
    (3) Destination(s) of Schedule 3 chemicals exported;
    (4) Source(s) of Schedule 3 chemicals imported; and
    (5) End-use(s) of Schedule 3 chemicals exported or imported (e.g., 
addition of new end-use(s)).
    (c) Changes to company and plant site information submitted in the 
ADPA, the Annual Declaration of Anticipated Activities, and the Annual 
Report on Exports and Imports. (1) Internal company changes. You must 
submit an amended declaration or report to BIS within 30 days of any 
change in the following information:
    (i) Name of declaration/report point of contact (D-POC), including 
telephone number, facsimile number, and e-mail address;
    (ii) Name(s) of inspection point(s) of contact (I-POC), including 
telephone number, and facsimile number, and e-mail address(es);
    (iii) Company name (see 714.4(c)(2) for other company changes);
    (iv) Company mailing address;
    (v) Plant site name;
    (vi) Plant site owner, including telephone number and facsimile 
number;
    (vii) Plant site operator, including telephone number and facsimile 
number;
    (viii) Plant name;
    (xi) Plant owner, including telephone number and facsimile number; 
and
    (x) Plant operator, including telephone number and facsimile 
number.

[[Page 70789]]

    (2) Change in ownership of company, plant site, or plant. If you 
sold or purchased a declared company, plant site or plant, you must 
submit an amended declaration or report to BIS, either before the 
effective date of the change or within 30 days after the effective date 
of the change. The amended declaration or report must include the 
following information.
    (i) Information that must be submitted to BIS by a company selling 
a declared plant site:
    (A) Name of seller (i.e., name of the company selling a declared 
plant site);
    (B) Name of declared plant site and U.S. Code Number for that plant 
site;
    (C) Name of purchaser (i.e., name of company purchasing a declared 
plant site) and identity of the new owner and contact person for the 
purchaser, if known;
    (D) Date of ownership transfer;
    (E) Additional (e.g., unique) details on the sale of the plant site 
relevant to ownership or operational control over any portion of the 
declared plant site (e.g., whether the entire plant site or only a 
portion of the declared plant site has been sold to a new owner); and
    (F) Details regarding whether the new owner will submit the 
declaration or report for the entire calendar year during which the 
ownership changed occurred, or whether the previous owner and the new 
owner will submit separate declarations or reports for the periods of 
the calendar year during which each owned the plant site or trading 
company.
    (1) If the new owner is responsible for submitting the declaration 
or report for the entire current year, it must have in its possession 
the records for the period of the year during which the previous owner 
owned the plant site or trading company.
    (2) If the previous owner and new owner will submit separate 
declarations or reports for the periods of the calendar year during 
which each owned the plant site or trading company, and, at the time of 
transfer of ownership, the previous owner's activities are not above 
the declaration or report thresholds set forth in Sec.  714.1(a)(1) and 
Sec.  714.2(a)(1) of the CWCR, respectively, the previous owner and the 
new owner must still submit declarations to BIS with the below 
threshold quantities indicated.
    (3) If the part-year declarations submitted by the previous owner 
and the new owner are not, when combined, above the declaration 
threshold set forth in Sec.  714.1(a)(1) of the CWCR, BIS will return 
the declarations without action as set forth in Sec.  714.5 of the 
CWCR.
    (4) If part-year reports are not, when combined, above the report 
threshold set forth in Sec.  714.2(a)(1) of the CWCR, BIS will return 
the reports without action as set forth in Sec.  714.5 of the CWCR.
    (ii) Information that must be submitted to BIS by the company 
purchasing a declared plant site:
    (A) Name of purchaser (i.e., name of individual or company 
purchasing a declared plant site);
    (B) Mailing address of purchaser;
    (C) Name of declaration point of contact (D-POC) for the purchaser, 
including telephone number, facsimile number, and e-mail address;
    (D) Name(s) of inspection point(s)s of contact (I-POC) for the 
purchaser, including telephone number, facsimile number, and e-mail 
address(es);
    (E) Name of the declared plant site and U.S. Code Number for that 
plant site;
    (F) Location of the declared plant site;
    (G) Operator of the declared plant site, including telephone 
number, and facsimile number;
    (H) Name of plant where Schedule 3 production exceeds the 
declaration threshold;
    (I) Owner of plant where Schedule 3 production exceeds the 
declaration threshold;
    (J) Operator of plant where Schedule 3 production exceeds the 
declaration threshold; and
    (K) Details on the next declaration or report submission on whether 
the new owner will submit the declaration or report for the entire 
calendar year during which the ownership change occurred, or whether 
the previous owner and new owner will submit separate declarations or 
reports for the periods of the calendar year during which each owned 
the plant site or trading company.


    Note 1 to Sec.  714.4(c): You must submit an amendment to your 
most recently submitted declaration or report for declaring changes 
to internal company information (e.g., company name change) or 
changes in ownership of a facility or trading company that have 
occurred since the submission of this declaration or report. BIS 
will process the amendment to ensure current information is on file 
regarding the facility or trading company (e.g., for inspection 
notifications and correspondence) and will also forward the amended 
declaration to the OPCW to ensure that they also have current 
information on file regarding your facility or trading company.


    Note 2 to Sec.  714.4(c): You may notify BIS of change in 
ownership via a letter to the address given in Sec.  711.6 of the 
CWCR. If you are submitting an amended declaration or report, use 
Form B to address details regarding the sale of the declared plant 
site or trading company.


    Note 3 to Sec.  714.4(c): For ownership changes, the declared 
plant site or trading company will maintain its original U.S. Code 
Number, unless the plant site or trading company is sold to multiple 
owners, at which time BIS will assign new U.S. Code Numbers.


    (d) Inspection-related amendments. If, following the completion of 
an inspection (see parts 716 and 717 of the CWCR), you are required to 
submit an amended declaration based on the final inspection report, BIS 
will notify you in writing of the information to be amended pursuant to 
Sec. Sec.  716.10 and 717.5(b) of the CWCR. Amended declarations must 
be submitted to BIS no later than 45 days following your receipt of 
BIS's post inspection letter.
    (e) Non-substantive changes. If, subsequent to the submission of 
your declaration or report to BIS, you discover one or more non-
substantiative typographical errors in your declaration or report, you 
are not required to submit an amended declaration or report to BIS. 
Instead, you may correct these errors in a subsequent declaration or 
report.
    (f) Documentation required for amended declarations or reports. If 
you are required to submit an amended declaration or report to BIS 
pursuant to paragraph (a), (b), (c), or (d) of this section, you must 
submit either:
    (1) A letter containing all of the corrected information required, 
in accordance with the provisions of this section, to amend your 
declaration or report; or
    (2) Both of the following:
    (i) A new Certification Form; and
    (ii) The specific forms required for the declaration or report type 
being amended (e.g., annual declaration on past activities) containing 
the corrected information required, in accordance with the requirements 
of this section, to amend your declaration or report.


Sec.  714.5  Declarations and reports returned without action by BIS.

    If you submit a declaration or report and BIS determines that the 
information contained therein is not required by the CWCR, BIS will 
return the original declaration or report to you, without action, 
accompanied by a letter explaining BIS's decision. In order to protect 
your confidential business information, BIS will not maintain a copy of 
the any declaration or report that is returned without action. However, 
BIS will maintain a copy of the RWA letter.


Sec.  714.6  Deadlines for submission of Schedule 3 declarations, 
reports, and amendments.

    Declarations, reports, and amendments required under this part

[[Page 70790]]

must be postmarked by the appropriate date identified in Supplement No. 
2 to this part 714 of the CWCR. Required declarations, reports, and 
amendments include:
    (a) Annual declaration on past activities (production of Schedule 3 
chemicals during the previous calendar year);
    (b) Annual report on exports and imports of Schedule 3 chemicals 
from plant sites, trading companies, and other persons subject to the 
CWCR (during the previous calendar year);
    (c) Combined declaration and report (production of Schedule 3 
chemicals, as well as exports or imports of the same or different 
Schedule 3 chemicals, by a declared plant site during the previous 
calendar year);
    (d) Annual declaration on anticipated activities (anticipated 
production of Schedule 3 chemicals during the next calendar year);
    (e) Declaration on Additionally Planned Activities (additionally 
planned production of Schedule 3 chemicals); and
    (f) Amended declaration and report, including combined declaration 
and report.

           Supplement No. 1 to Part 714--Schedule 3 Chemicals
------------------------------------------------------------------------
                                               (CAS registry number)
------------------------------------------------------------------------
            A. Toxic chemicals
(1) Phosgene: Carbonyl dichloride........  (75-44-5)
(2) Cyanogen chloride....................  (506-77-4)
(3) Hydrogen cyanide.....................  (74-90-8)
(4) Chloropicrin: Trichloronitromethane..  (76-06-2)
              B. Precursors
(5) Phosphorus oxychloride...............  (10025-87-3)
(6) Phosphorus trichloride...............  (7719-12-2)
(7) Phosphorus pentachloride.............  (10026-13-8)
(8) Trimethyl phosphite..................  (121-45-9)
(9) Triethyl phosphite...................  (122-52-1)
(10) Dimethyl phosphite..................  (868-85-9)
(11) Diethyl phosphite...................  (762-04-9)
(12) Sulfur monochloride.................  (10025-67-9)
(13) Sulfur dichloride...................  (10545-99-0)
(14) Thionyl chloride....................  (7719-09-7)
(15) Ethyldiethanolamine.................  (139-87-7)
(16) Methyldiethanolamine................  (105-59-9)
(17) Triethanolamine.....................  (102-71-6)
------------------------------------------------------------------------
Note to Supplement No. 1: Refer to Supplement No. 1 to part 774 of the
  Export Administration Regulations (the Commerce Control List), ECCNs
  1C350 and 1C355, for export controls related to Schedule 3 chemicals.


  Supplement No. 2 to Part 714--Deadlines for Submission of Schedule 3
                  Declarations, Reports, and Amendments
------------------------------------------------------------------------
        Declarations            Applicable forms          Due dates
------------------------------------------------------------------------
Annual Declaration on Past    Certification, 3-1,   February 28 of the
 Activities (previous          3-2, 3-3 (if also     year following any
 calendar year).               exported or           calendar year in
Declared plant site            imported), A (as      which the
 (production).                 appropriate), B       production of a
                               (optional).           Schedule 3 chemical
                                                     exceeded the
                                                     declaration
                                                     threshold in Sec.
                                                     714.1(a)(1)(i) of
                                                     the CWCR.
Annual Report on Exports and  Certification, 3-1,   February 28 of the
 Imports (previous calendar    3-3.3 and 3-3.4, A    year following any
 year);                        (as appropriate), B   calendar year in
Plant site, trading company,   (optional).           which exports or
 other persons.                                      imports of a
                                                     Schedule 3 chemical
                                                     by a plant site,
                                                     trading company, or
                                                     other person
                                                     subject to the CWCR
                                                     (as described in
                                                     Sec.   714.2(a) of
                                                     the CWCR) exceeded
                                                     the threshold in
                                                     Sec.   714.2(a) of
                                                     the CWCR.
Combined Declaration &        Certification, 3-1,   February 28 of the
 Report.                       3-2, and 3-3, A (as   year following any
                               appropriate), B       calendar year in
                               (optional).           which the
                                                     production of a
                                                     Schedule 3 chemical
                                                     and the export or
                                                     import of the same
                                                     or a different
                                                     Schedule 3 chemical
                                                     by a declared plant
                                                     site exceeded the
                                                     applicable
                                                     thresholds in Sec.
                                                     Sec.
                                                     714.1(a)(1)(i) and
                                                     714.2(a),
                                                     respectively, of
                                                     the CWCR.
Annual Declaration on         Certification, 3-1,   September 3 of the
 Anticipated Activities        3-2, 3-3.2, A (as     year prior to any
 (Production); (next           appropriate), B       calendar year in
 calendar year).               (optional).           which Schedule 3
                                                     production is
                                                     anticipated to
                                                     occur.
Declaration on Additionally   Certification, 3-1,   15 calendar days
 Planned Activities.           3-3.1 and 3-3.2, A    before the
                               (as appropriate), B   additionally
                               (optional).           planned activity
                                                     begins.
Amended Declaration:
    --Declaration             Certification, 3-1,   --15 calendar days
     information.              3-2, 3-3.             after change in
    --Company information...                         information
    --Post-inspection                               --30 calendar days
     letter..                                        after change in
                                                     information
                                                    --45 calendar days
                                                     after receipt of
                                                     letter
Amended Report..............  Certification, 3-1,   --15 calendar days
                               3-2, 3-3, A (as       after change in
                               appropriate), B       information
                               (optional.

[[Page 70791]]

 
Combined Declaration &        Certification, 3-1,3- --15 calendar days
 Report.                       2, 3-3, A (as         after change in
                               appropriate), B       information
                               (optional).
------------------------------------------------------------------------

PART 715--ACTIVITIES INVOLVING UNSCHEDULED DISCRETE ORGANIC 
CHEMICALS (UDOCs)

Sec.
715.1 Annual declaration requirements for production by synthesis of 
unscheduled discrete organic chemicals (UDOCs).
715.2 Amended declaration.
715.3 Declarations returned without action by BIS.
715.4 Deadlines for submitting UDOC declarations, no changes 
authorization forms, and amendments.
Supplement No. 1 to part 715--Definition of an Unscheduled Discrete 
Organic Chemical.
Supplement No. 2 to Part 715--Examples of Unscheduled Discrete 
Organic Chemicals (UDOCs) and UDOC Production.
Supplement No. 3 to Part 715--Deadlines for Submission of 
Declarations, No Changes Authorization Forms, and Amendments for 
Unscheduled Discrete Organic Chemical (UDOC) Facilities.

    Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 
CFR, 1999 Comp., p. 199.


Sec.  715.1  Annual declaration requirements for production by 
synthesis of unscheduled discrete organic chemicals (UDOCs).

    (a) Declaration of production by synthesis of UDOCs for purposes 
not prohibited by the CWC. (1) Production quantities that trigger the 
declaration requirement. See Sec.  711.6 of the CWCR for information on 
obtaining the forms you will need to declare production of unscheduled 
discrete organic chemicals. You must complete the forms specified in 
paragraph (b) of this section if your plant site produced by synthesis:
    (i) In excess of 200 metric tons aggregate of all UDOCs (including 
all UDOCs containing the elements phosphorus, sulfur or fluorine, 
referred to as ``PSF-chemicals'') during the previous calendar year; or
    (ii) In excess of 30 metric tons of an individual PSF-chemical at 
one or more plants at your plant site during the previous calendar 
year.

    Note to Sec.  715.1(a)(1)(ii): In calculating the aggregate 
production quantity of each individual PSF chemical produced by a 
PSF plant, do not include production of a PSF chemical that was 
produced in quantities less than 30 metric tons. Include only 
production quantities from those PSF plants that produced more than 
30 metric tons of an individual PSF chemical.


    (2) UDOCs subject to declaration requirements under this part. (i) 
UDOCs subject to declaration requirements under this part are those 
produced by synthesis that have been isolated for:
    (A) Use; or
    (B) Sale as a specific end product.
    (ii) Exemptions.
    (A) Polymers and oligomers consisting of two or more repeating 
units;
    (B) Chemicals and chemical mixtures produced through a biological 
or biomediated process;
    (C) Products from the refining of crude oil, including sulfur-
containing crude oil;
    (D) Metal carbides (i.e., chemicals consisting only of metal and 
carbon); and
    (E) UDOCs produced by synthesis that are ingredients or by-products 
in foods designed for consumption by humans and/or animals.


    Note to paragraph (a)(2): See Supplement No. 2 to this part for 
examples of UDOCs subject to the declaration requirements of this 
part, and for examples of activities that are not considered 
production by synthesis.


    (3) Exemptions for UDOC plant sites. UDOC plant sites that 
exclusively produced hydrocarbons or explosives are exempt from UDOC 
declaration requirements. For the purposes of this part, the following 
definitions apply for hydrocarbons and explosives:
    (i) Hydrocarbon means any organic compound that contains only 
carbon and hydrogen; and
    (ii) Explosive means a chemical (or a mixture of chemicals) that is 
included in Class 1 of the United Nations Organization hazard 
classification system.
    (b) Types of declaration forms to be used. (1) Annual declaration 
on past activities. (i) You must complete the Certification Form and 
Form UDOC (consisting of two pages), unless there are no changes from 
the previous year's declaration and you submit a No Changes 
Authorization Form pursuant to paragraph (b)(1)(ii) of this section. 
Attach Form A as appropriate; Form B is optional.
    (ii) You may complete the No Changes Authorization Form if there 
are no updates or changes to any information (except the certifying 
official and dates signed and submitted) in your plant site's 
previously submitted annual declaration on past activities. Your plant 
site's activities will be declared to the OPCW and subject to 
inspection, if applicable, based upon the data reported in the most 
recent UDOC Declaration that you submitted to BIS.


    Note to Sec.  715.1(b)(1)(ii): If, after submitting the No 
Changes Authorization Form, you have changes to information, you 
must submit a complete amendment to the annual declaration on past 
activities. See Sec.  715.2.


    (c) ``Declared'' UDOC plant site. A plant site that submitted a 
declaration pursuant to paragraph (a)(1) of this section is a 
``declared'' UDOC plant site.
    (d) Routine inspections of declared UDOC plant sites. A 
``declared'' UDOC plant site is subject to routine inspection by the 
Organization for the Prohibition of Chemical Weapons (see part 716 of 
the CWCR) if it produced by synthesis more than 200 metric tons 
aggregate of UDOCs during the previous calendar year.


Sec.  715.2  Amended declaration.

    In order for BIS to maintain accurate information on previously 
submitted plant site declarations, including current information 
necessary to facilitate inspection notifications and activities or to 
communicate declaration requirements, amended declarations will be 
required under the following circumstances described in this section. 
This section applies only to annual declarations on past activities 
submitted for the previous calendar year, unless specified otherwise in 
a final inspection report.
    (a) Changes to information that directly affects a declared plant 
site's Annual Declaration of Past Activities (ADPA) which was 
previously submitted to BIS. You must submit an amended declaration to 
BIS within15 days of any change in the following information:
    (1) Product group codes for UDOCs produced in quantities exceeding 
the applicable declaration threshold specified in Sec.  715.1(a)(1);
    (2) Approximate number of plants at the declared plant site that 
produced any amount of UDOCs (including all PSF chemicals);
    (3) Aggregate amount of production (by production range) of UDOCs 
produced by all plants at the declared plant site;
    (4) Exact number of plants at the declared plant site that 
individually produced more than 30 metric tons of a single PSF 
chemical; and
    (5) Production range of each plant at the declared plant site that 
individually

[[Page 70792]]

produced more than 30 metric tons of a single PSF chemical.
    (b) Changes to company and plant site information submitted in the 
ADPA that must be maintained by BIS. (1) Internal company changes. You 
must submit an amended declaration to BIS within 30 days of any change 
in the following information:
    (i) Name of declaration point of contact (D-POC), including 
telephone number, facsimile number, and e-mail address;
    (ii) Name(s) of inspection point(s) of contact (I-POC), including 
telephone number, facsimile number(s) and e-mail address(es);
    (iii) Company name (see 715.2(b)(2) for other company changes);
    (iv) Company mailing address;
    (v) Plant site name;
    (vi) Plant site owner, including telephone number and facsimile 
number; and
    (vii) Plant site operator, including telephone number and facsimile 
number.
    (2) Change in ownership of company or plant site. If you sold or 
purchased a declared plant site, you must submit an amended declaration 
to BIS, either before the effective date of the change or within 30 
days after the effective date of the change. The amended declaration 
must include the following information.
    (i) Information that must be submitted to BIS by the company 
selling a declared plant site:
    (A) Name of seller (i.e., name of company selling a declared plant 
site);
    (B) Name of declared plant site name and U.S. Code Number for that 
plant site;
    (C) Name of purchaser (i.e., name of new company purchasing a 
declared plant site) and identity of contact person for the purchaser, 
if known;
    (D) Date of ownership transfer or change;
    (E) Additional details on the sale of the declared plant site 
relevant to ownership or operational control over any portion of the 
declared plant site (e.g., whether the entire plant site or only a 
portion of the declared plant site has been sold to a new owner); and
    (F) Details regarding whether the new owner will submit the 
declaration for the entire calendar year during which the ownership 
change occurred, or whether the previous owner and new owner will 
submit separate declarations for the periods of the calendar year 
during which each owned the plant site.
    (1) If the new owner is responsible for submitting the declaration 
for the entire current year, it must have in its possession the records 
for the period of the year during which the previous owner owned the 
plant site.
    (2) If the previous owner and new owner will submit separate 
declarations for the periods of the calendar year during which each 
owned the plant site, and, if at the time of transfer of ownership, the 
previous owner's activities are not above the declaration thresholds 
set forth in Sec.  715.1(a)(1) of the CWCR, the previous owner and the 
new owner must still submit declarations to BIS with the below 
threshold quantities indicated.
    (3) If the part-year declarations submitted by the previous owner 
and the new owner are not, when combined, above the declaration 
threshold set forth in Sec.  715.1(a)(1) of the CWCR, BIS will return 
the declarations without action as set forth in Sec.  715.3 of the 
CWCR.
    (ii) Information that must be submitted to BIS by the company 
purchasing a declared plant site:
    (A) Name of purchaser (i.e., name of individual or company 
purchasing a declared plant site);
    (B) Mailing address of purchaser;
    (C) Name of declaration point of contact (D-POC) for the purchaser, 
including telephone number, facsimile number, and e-mail address;
    (D) Name(s) of inspection point(s) of contact (I-POC) for the 
purchaser, including telephone number(s), facsimile number(s), and e-
mail address(es);
    (E) Name of the declared plant site and U.S. Code Number for that 
plant site;
    (F) Location of the declared plant site;
    (G) Name of plant site where the production of UDOCs exceeds the 
applicable declaration threshold;
    (H) Owner of plant site where the production of UDOCs exceeds the 
applicable declaration threshold, including telephone number and 
facsimile number;
    (I) Operator of plant site where the production of UDOCs exceeds 
the applicable declaration threshold, including telephone number and 
facsimile number; and
    (J) Details on the next declaration or report submission on whether 
the new owner will submit the declaration or report for the entire 
calendar year during which the ownership change occurred, or whether 
the previous owner and new owner will submit separate declarations or 
report for the periods of the calendar year during which each owned the 
plant site.

    Note 1 to Sec.  715.2(b): You must submit an amendment to your 
most recently submitted declaration or report for declaring changes 
to internal company information (e.g., company name change) or 
changes in ownership of a facility or trading company that have 
occurred since the submission of this declaration or report. BIS 
will process the amendment to ensure current information is on file 
regarding the facility or trading company (e.g., for inspection 
notifications and correspondence) and will also forward the amended 
declaration to the OPCW to ensure that they also have current 
information on file regarding your facility or trading company.



    Note 2 to Sec.  715.2(b): You may notify BIS of change in 
ownership via a letter to the address given in Sec.  711.6 of the 
CWCR. If you are submitting an amended declaration, use Form B to 
address details regarding the sale of the declared plant site.


    Note 3 to Sec.  715.2(b): For ownership changes, the declared 
plant site will maintain its original U.S. Code Number, unless the 
plant site is sold to multiple owners, at which time BIS will assign 
new U.S. Code Numbers.


    (c) Inspection-related amendments. If, following completion of an 
inspection (see parts 716 or 717 of the CWCR), you are required to 
submit an amended declaration based on the final inspection report, BIS 
will notify you in writing of the information that will be required 
pursuant to Sec. Sec.  716.10 and 717.5 of the CWCR. You must submit an 
amended declaration to BIS no later than 45 days following your receipt 
of BIS's post inspection letter.
    (d) Non-substantive changes. If, subsequent to the submission of 
your declaration to BIS, you discover one or more non-substantive 
typographical errors in your declaration, you are not required to 
submit an amended declaration to BIS. Instead, you may correct these 
errors in a subsequent declaration.
    (e) Documentation required for amended declarations. If you are 
required to submit an amended declaration to BIS pursuant to paragraph 
(a), (b), or (c) of this section, you must submit either:
    (1) A letter containing all of the corrected information required, 
in accordance with the provisions of this section, to amend your 
declaration; or
    (2) Both of the following:
    (i) A new Certification Form; and
    (ii) The specific form required for the declaration containing the 
corrected information required, in accordance with the requirements of 
this section, to amend your declaration.


Sec.  715.3  Declarations returned without action by BIS.

    If you submit a declaration and BIS determines that the information 
contained therein is not required by the CWCR, BIS will return the 
original declaration to you, without action, accompanied by a letter 
explaining BIS's decision. In order to protect your

[[Page 70793]]

confidential business information, BIS will not maintain a copy of any 
declaration that is returned without action. However, BIS will maintain 
a copy of the RWA letter.


Sec.  715.4  Deadlines for submitting UDOC declarations, no changes 
authorization forms, and amendments.

    Declarations, no changes authorization forms, and amendments 
required under this part must be postmarked by the appropriate dates 
identified in Supplement No. 3 to this part 715 of the CWCR. Required 
declarations include:
    (a) Annual declaration on past activities (UDOC production during 
the previous calendar year);
    (b) No changes authorization form (may be completed and submitted 
to BIS when there are no changes to any information in your plant 
site's previously submitted annual declaration on past activities, 
except the certifying official and the dates signed and submitted); and
    (c) Amended declaration.

Supplement No. 1 to Part 715--Definition of an Unscheduled Discrete 
Organic Chemical

    Unscheduled discrete organic chemical means any chemical: (1) 
Belonging to the class of chemical compounds consisting of all 
compounds of carbon except for its oxides, sulfides and metal 
carbonates identifiable by chemical name, by structural formula, if 
known, and by Chemical Abstract Service registry number, if 
assigned; and (2) that is not contained in the Schedules of 
Chemicals (see Supplements No. 1 to parts 712 through 714 of this 
subchapter). Unscheduled discrete organic chemicals subject to 
declaration under this part are those produced by synthesis that are 
isolated for use or sale as a specific end-product.

    Note: Carbon oxides consist of chemical compounds that contain 
only the elements carbon and oxygen and have the chemical formula 
C<INF>x</INF>O<INF>y</INF>, where x and y denote integers. The two 
most common carbon oxides are carbon monoxide (CO) and carbon 
dioxide (CO<INF>2</INF>). Carbon sulfides consist of chemical 
compounds that contain only the elements carbon and sulfur, and have 
the chemical formula C<INF>a</INF>S<INF>b</INF>, where a and b 
denote integers. The most common carbon sulfide is carbon disulfide 
(CS<INF>2</INF>). Metal carbonates consist of chemical compounds 
that contain a metal (i.e., the Group I Alkalis, Groups II Alkaline 
Earths, the Transition Metals, or the elements aluminum, gallium, 
indium, thallium, tin, lead, bismuth or polonium), and the elements 
carbon and oxygen. Metal carbonates have the chemical formula 
M<INF>d</INF>(CO<INF>3</INF>)<INF>e</INF>, where d and e denote 
integers and M represents a metal. Common metal carbonates are 
sodium carbonate (Na<INF>2</INF>CO<INF>3</INF>) and calcium 
carbonate (CaCO<INF>3</INF>). In addition, metal carbides or other 
compounds consisting of only a metal, as described in this Note, and 
carbon (e.g., calcium carbide (CaC<INF>2</INF>)), are exempt from 
declaration requirements (see Sec.  715.1(a)(2)(ii)(D)).

Supplement No. 2 to Part 715--Examples of Unscheduled Discrete Organic 
Chemicals (UDOCs) and UDOC Production

    (1) Examples of UDOCs not subject to declaration include:
    (i) UDOCs produced coincidentally as by-products that are not 
isolated for use or sale as a specific end product, and are routed 
to, or escape from, the waste stream of a stack, incinerator, or 
waste treatment system or any other waste stream;
    (ii) UDOCs, contained in mixtures, which are produced 
coincidentally and not isolated for use or sale as a specific end-
product;
    (iii) UDOCs produced by recycling (i.e., involving one of the 
processes listed in paragraph (3) of this supplement) of previously 
declared UDOCs;
    (iv) UDOCs produced by the mixing (i.e., the process of 
combining or blending into one mass) of previously declared UDOCs; 
and
    (v) UDOCs that are intermediates and that are used in a single 
or multi-step process to produce another declared UDOC.
    (2) Examples of UDOCs that you must declare under part 715 
include, but are not limited to, the following, unless they are not 
isolated for use or sale as a specific end product:
    (i) Acetophenone (CAS <greek-i> 98-86-2);
    (ii) 6-Chloro-2-methyl aniline (CAS <greek-i> 87-63-8);
    (iii) 2-Amino-3-hydroxybenzoic acid (CAS <greek-i> 548-93-6); 
and
    (iv) Acetone (CAS <greek-i> 67-64-1).
    (3) Examples of activities that are not considered production by 
synthesis under part 715 and, thus, the end products resulting from 
such activities would not be declared under part 715, are as 
follows:
    (i) Fermentation;
    (ii) Extraction;
    (iii) Purification;
    (iv) Distillation; and
    (v) Filtration.

 Supplement No. 3 to Part 715--Deadlines for Submission of Declarations,
 No Changes Authorization Forms, and Amendments for Unscheduled Discrete
                   Organic Chemical (UDOC) Facilities
------------------------------------------------------------------------
        Declarations            Applicable forms          Due dates
------------------------------------------------------------------------
Annual Declaration on Past    Certification, UDOC,  February 28 of the
 Activities (previous          A (as appropriate),   year following any
 calendar year).               B (optional).         calendar year in
Declared plant site.........                         which the
                                                     production of UDOCs
                                                     exceeded the
                                                     applicable
                                                     declaration
                                                     threshold in Sec.
                                                     715.1(a)(1) of the
                                                     CWCR.
No Changes Authorization      No Changes            February 28 of the
 Form (declaration required,   Authorization Form.   year following any
 but no changes to data                              calendar year in
 contained in previously                             which the
 submitted annual                                    production of UDOCs
 declaration on past                                 exceeded the
 activities (previous                                applicable
 calendar year).                                     declaration
Declared plant site.........                         threshold in Sec.
                                                     715.1(a)(1) of the
                                                     CWCR.
Amended Declaration
    --Declaration             Certification, UDOC,  --15 calendar days
     information.              A (as appropriate),   after change in
    --Company information...   B (optional).         information.
    --Post-inspection letter                        --30 calendar days
                                                     after change in
                                                     information.
                                                    --45 calendar days
                                                     after receipt of
                                                     letter.
------------------------------------------------------------------------

PART 716--INITIAL AND ROUTINE INSPECTIONS OF DECLARED FACILITIES

Sec.
716.1 General information on the conduct of initial and routine 
inspections.
716.2 Purposes and types of inspections of declared facilities.
716.3 Consent to inspections; warrants for inspections.
716.4 Scope and conduct of inspections.
716.5 Notification, duration and frequency of inspections.
716.6 Facility agreements.
716.7 Samples.
716.8 On-site monitoring of Schedule 1 facilities.
716.9 Report of inspection-related costs.
716.10 Post inspection activities.
Supplement No. 1 to Part 716--Notification, Duration, and Frequency 
of Inspections.
Supplement No. 2 to Part 716--[Reserved].
Supplement No. 3 to Part 716--[Reserved].

    Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 
CFR, 1999 Comp., p. 199.

[[Page 70794]]

Sec.  716.1  General information on the conduct of initial and routine 
inspections.

    This part provides general information about the conduct of initial 
and routine inspections of declared facilities subject to inspection 
under CWC Verification Annex Part VI (E), Part VII(B), Part VIII(B) and 
Part IX(B). See part 717 of this subchapter for provisions concerning 
challenge inspections.
    (a) Overview. Each State Party to the CWC, including the United 
States, has agreed to allow certain inspections of declared facilities 
by inspection teams employed by the Organization for the Prohibition of 
Chemical Weapons (OPCW) to ensure that activities are consistent with 
obligations under the Convention. BIS is responsible for leading, 
hosting and escorting inspections of all facilities subject to the 
provisions of this subchapter (see Sec.  710.2 of this subchapter).
    (b) Declared facilities subject to initial and routine inspections. 
(1) Schedule 1 facilities. (i) Your declared facility is subject to 
inspection if it produced in excess of 100 grams aggregate of Schedule 
1 chemicals in the previous calendar year or anticipates producing in 
excess of 100 grams aggregate of Schedule 1 chemicals during the next 
calendar year.
    (ii) If you are a new Schedule 1 production facility pursuant to 
Sec.  712.4 of the CWCR, your facility is subject to an initial 
inspection within 200 days of submitting an initial declaration.


    Note to paragraph (b)(1): All Schedule 1 facilities submitting a 
declaration are subject to inspection.


    (2) Schedule 2 plant sites. (i) Your declared plant site is subject 
to inspection if at least one plant on your plant site produced, 
processed or consumed, in any of the three previous calendar years, or 
you anticipate that at least one plant on your plant site will produce, 
process or consume in the next calendar year, any Schedule 2 chemical 
in excess of the following:
    (A) 10 kg of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule 
2, Part A, paragraph 3 in Supplement No. 1 to part 713 of this 
subchapter);
    (B) 1 metric ton of chemical PFIB: 1,1,3,3,3-Pentafluoro-2 
(trifluoromethyl)-1-propene or any chemical belonging to the Amiton 
family (see Schedule 2, Part A, paragraphs 1 and 2 in Supplement No. 1 
to part 713 of this subchapter); or
    (C) 10 metric tons of any chemical listed in Schedule 2, Part B 
(see Supplement No. 1 to part 713 of this subchapter).
    (ii) Initial inspection for new Schedule 2 plant sites. Your 
declared plant site is subject to an initial inspection within the 
first year after submitting a declaration, if at least one plant on 
your plant site produced, processed or consumed in any of the three 
previous years, or you anticipate that at least one plant on your plant 
site will produce, process or consume in the next calendar year, any 
Schedule 2 chemical in excess of the threshold quantities set forth in 
paragraphs (b)(2)(i)(A) through (C) of this section.


    Note to paragraph (b)(2): The applicable inspection threshold 
for Schedule 2 plant sites is ten times higher than the applicable 
declaration threshold. Only declared plant sites, comprising at 
least one declared plant that exceeds the applicable inspection 
threshold, are subject to inspection.


    (3) Schedule 3 plant sites. Your declared plant site is subject to 
inspection if the declared plants on your plant site produced during 
the previous calendar year, or you anticipate they will produce in the 
next calendar year, in excess of 200 metric tons aggregate of any 
Schedule 3 chemical.


    Note to paragraph (b)(3): The methodology for determining a 
declarable and inspectable plant site is different. A Schedule 3 
plant site that submits a declaration is subject to inspection only 
if the aggregate production of a Schedule 3 chemical at all declared 
plants on the plant site exceeds 200 metric tons.


    (4) Unscheduled discrete organic chemical plant sites. Your 
declared plant site is subject to inspection if it produced by 
synthesis more than 200 metric tons aggregate of unscheduled discrete 
organic chemicals (UDOC) during the previous calendar year.


    Note 1 to paragraph (b)(4): You must include amounts of 
unscheduled discrete organic chemicals containing phosphorus, sulfur 
or fluorine in the calculation of your plant site's aggregate 
production of unscheduled discrete organic chemicals.


    Note 2 to paragraph (b)(4): All UDOC plant sites that submit a 
declaration based on Sec.  715.1(a)(1)(i) of the CWCR are subject to 
a routine inspection.


    (c) Responsibilities of the Department of Commerce. As the host and 
escort for the international Inspection Team for all inspections of 
facilities subject to the provisions of the CWCR under this part, BIS 
will:
    (1) Lead on-site inspections;
    (2) Provide Host Team notification to the facility of an impending 
inspection;
    (3) Take appropriate action to obtain an administrative warrant in 
the event the facility does not consent to the inspection;
    (4) Dispatch an advance team to the vicinity of the site to provide 
administrative and logistical support for the impending inspection and, 
upon request, to assist the facility with inspection preparation;
    (5) Escort the Inspection Team on-site throughout the inspection 
process;
    (6) Assist the Inspection Team with verification activities;
    (7) Negotiate the development of a site-specific facility 
agreement, if appropriate (see Sec.  716.6); and
    (8) Ensure that an inspection adheres to the Convention, the Act 
and any warrant issued thereunder, and a site-specific facility 
agreement, if concluded.


Sec.  716.2  Purposes and types of inspections of declared facilities.

    (a) Schedule 1 facilities. (1) Purposes of inspections. The aim of 
inspections of Schedule 1 facilities is to verify that:
    (i) The facility is not used to produce any Schedule 1 chemical, 
except for the declared Schedule 1 chemicals;
    (ii) The quantities of Schedule 1 chemicals produced, processed or 
consumed are correctly declared and consistent with needs for the 
declared purpose; and
    (iii) The Schedule 1 chemical is not diverted or used for purposes 
other than those declared.
    (2) Types of inspections. (i) Initial inspections. (A) During 
initial inspections of declared Schedule 1 facilities, in addition to 
the verification activities listed in paragraph (a)(1) of this section, 
the Host Team and the Inspection Team will draft site-specific facility 
agreements (see Sec.  716.6) for the conduct of routine inspections.
    (B) For new Schedule 1 production facilities declared pursuant to 
Sec.  712.4 of the CWCR, the U.S. National Authority, in coordination 
with BIS, will conclude a facility agreement with the OPCW before the 
facility begins producing above 100 grams aggregate of Schedule 1 
chemicals.
    (ii) Routine inspections. During routine inspections of declared 
Schedule 1 facilities, the verification activities listed in paragraph 
(a)(1) of this section will be carried out pursuant to site-specific 
facility agreements (Sec.  716.6) developed during the initial 
inspections and concluded between the U.S. Government and the OPCW 
pursuant to the Convention.
    (b) Schedule 2 plant sites. (1) Purposes of inspections. (i) The 
general aim of inspections of declared Schedule 2 plant sites is to 
verify that activities are in accordance with obligations under the 
Convention and consistent with the information provided in 
declarations. Particular aims of inspections of declared Schedule 2 
plant sites are to verify:
    (A) The absence of any Schedule 1 chemical, especially its 
production,

[[Page 70795]]

except in accordance with the provisions of the Convention;
    (B) Consistency with declarations of production, processing or 
consumption of Schedule 2 chemicals; and
    (C) Non-diversion of Schedule 2 chemicals for activities prohibited 
under the Convention.
    (ii) During initial inspections, Inspection Teams shall collect 
information to determine the frequency and intensity of subsequent 
inspections by assessing the risk to the object and purpose of the 
Convention posed by the relevant chemicals, the characteristics of the 
plant site and the nature of the activities carried out there. The 
Inspection Team will take the following criteria into account, inter 
alia:
    (A) The toxicity of the scheduled chemicals and of the end-products 
produced with them, if any;
    (B) The quantity of the scheduled chemicals typically stored at the 
inspected site;
    (C) The quantity of feedstock chemicals for the scheduled chemicals 
typically stored at the inspected site;
    (D) The production capacity of the Schedule 2 plants; and
    (E) The capability and convertibility for initiating production, 
storage and filling of toxic chemicals at the inspected site.
    (2) Types of inspections. (i) Initial inspections. During initial 
inspections of declared Schedule 2 plant sites, in addition to the 
verification activities listed in paragraph (b)(1) of this section, the 
Host Team and the Inspection Team will generally draft site-specific 
facility agreements for the conduct of routine inspections (see Sec.  
716.6).
    (ii) Routine inspections. During routine inspections of declared 
Schedule 2 plant sites, the verification activities listed in paragraph 
(b)(1) of this section will be carried out pursuant to any appropriate 
site-specific facility agreements developed during the initial 
inspections (see Sec.  716.6), and concluded between the U.S. 
Government and the OPCW pursuant to the Convention and the Act.
    (c) Schedule 3 plant sites. (1) Purposes of inspections. The 
general aim of inspections of declared Schedule 3 plant sites is to 
verify that activities are consistent with the information provided in 
declarations. The particular aim of inspections is to verify the 
absence of any Schedule 1 chemical, especially its production, except 
in accordance with the Convention.
    (2) Routine inspections. During routine inspections of declared 
Schedule 3 plant sites, in addition to the verification activities 
listed in paragraph (c)(1) of this section, the Host Team and the 
Inspection Team may draft site-specific facility agreements for the 
conduct of subsequent routine inspections (see Sec.  716.6). Although 
the Convention does not require facility agreements for declared 
Schedule 3 plant sites, the owner, operator, occupant or agent in 
charge of a plant site may request one. The Host Team will not seek a 
facility agreement if the owner, operator, occupant or agent in charge 
of the plant site does not request one. Subsequent routine inspections 
will be carried out pursuant to site-specific facility agreements, if 
applicable.
    (d) Unscheduled discrete organic chemical plant sites. (1) Purposes 
of inspections. The general aim of inspections of declared UDOC plant 
sites is to verify that activities are consistent with the information 
provided in declarations. The particular aim of inspections is to 
verify the absence of any Schedule 1 chemical, especially its 
production, except in accordance with the Convention.
    (2) Routine inspections. During routine inspections of declared 
UDOC plant sites, in addition to the verification activities listed in 
paragraph (d)(1) of this section, the Host Team and the Inspection Team 
may develop draft site-specific facility agreements for the conduct of 
subsequent routine inspections (see Sec.  716.6). Although the 
Convention does not require facility agreements for declared UDOC plant 
sites, the owner, operator, occupant or agent in charge of a plant site 
may request one. The Host Team will not seek a facility agreement if 
the owner, operator, occupant or agent in charge of the plant site does 
not request one. Subsequent routine inspections will be carried out 
pursuant to site-specific facility agreements, if applicable.


Sec.  716.3  Consent to inspections; warrants for inspections.

    (a) The owner, operator, occupant or agent in charge of a facility 
may consent to an initial or routine inspection. The individual giving 
consent on behalf of the facility represents that he or she has the 
authority to make this decision for the facility.
    (b) In instances where consent is not provided by the owner, 
operator, occupant or agent in charge for an initial or routine 
inspection, BIS will seek administrative warrants as provided by the 
Act.


Sec.  716.4  Scope and conduct of inspections.

    (a) General. Each inspection shall be limited to the purposes 
described in Sec.  716.2 and shall be conducted in the least intrusive 
manner, consistent with the effective and timely accomplishment of its 
purpose as provided in the Convention.
    (b) Scope. (1) Description of inspections. During inspections, the 
Inspection Team:
    (i) Will receive a pre-inspection briefing from facility 
representatives;
    (ii) Will visually inspect the facilities or plants producing 
scheduled chemicals or UDOCs, which may include storage areas, feed 
lines, reaction vessels and ancillary equipment, control equipment, 
associated laboratories, first aid or medical sections, and waste and 
effluent handling areas, as necessary to accomplish their inspection;
    (iii) May visually inspect other parts or areas of the plant site 
to clarify an ambiguity that has arisen during the inspection;
    (iv) May take photographs or conduct formal interviews of facility 
personnel;
    (v) May examine relevant records; and
    (vi) May take samples as provided by the Convention, the Act and 
consistent with the requirements set forth by the Director of the 
United States National Authority, at 22 CFR part 103, and the facility 
agreement, if applicable.
    (2) Scope of consent. When an owner, operator, occupant, or agent 
in charge of a facility consents to an initial or routine inspection, 
he or she is consenting to provide access to the Inspection Team and 
Host Team to any area of the facility, any item located on the 
facility, interviews with facility personnel, and any records necessary 
for the Inspection Team to complete its mission pursuant to paragraph 
(a) of this section, except for information subject to export control 
under ITAR (22 CFR parts 120 through 130) (see paragraph (b)(3) of this 
section). When consent is granted for an inspection, the owner, 
operator, occupant, or agent in charge agrees to provide the same 
degree of access provided for under section 305 of the Act. The 
determination of whether the Inspection Team's request to inspect any 
area, building, item or record is reasonable is the responsibility of 
the Host Team Leader.
    (3) ITAR-controlled technology. ITAR-controlled technology shall 
not be divulged to the Inspection Team without U.S. Government 
authorization. Facilities being inspected are responsible for the 
identification of ITAR-controlled technology to the BIS Host Team, if 
known.
    (c) Pre-inspection briefing. Upon arrival of the Inspection Team 
and Host Team at the inspection site and before commencement of the 
inspection, facility representatives will provide the Inspection Team 
and Host Team with a

[[Page 70796]]

pre-inspection briefing on the facility, the activities carried out 
there, safety measures, and administrative and logistical arrangements 
necessary for the inspection, which may be aided with the use of maps 
and other documentation as deemed appropriate by the facility. The time 
spent for the briefing will be limited to the minimum necessary and may 
not exceed three hours.
    (1) The pre-inspection briefing will address:
    (i) Facility health and safety issues and requirements, and 
associated alarm systems;
    (ii) Declared facility activities, business and manufacturing 
operations;
    (iii) Physical layout;
    (iv) Delimitation of declared facility;
    (v) Scheduled chemicals on the facility (declared and undeclared);
    (vi) Block flow diagram or simplified process flow diagram;
    (vii) Plants and units specific to declared operations;
    (viii) Administrative and logistic information; and
    (ix) Data declaration updates/revisions.
    (2) The pre-inspection briefing may also address, inter alia:
    (i) Introduction of key facility personnel;
    (ii) Management, organization and history;
    (iii) Confidential business information concerns;
    (iv) Types and location of records/documents;
    (v) Draft facility agreement, if applicable; and
    (vi) Proposed inspection plan.
    (d) Visual plant inspection. The Inspection Team may visually 
inspect the declared plant or facility and other areas or parts of the 
plant site as agreed by the Host Team Leader after consulting with the 
facility representative.
    (e) Records review. The facility must provide the Inspection Team 
with access to all supporting materials and documentation used by the 
facility to prepare declarations and to comply with the CWCR (see 
Sec. Sec.  721.1 and 721.2 of the CWCR) and with appropriate 
accommodations in which the Inspection Team can review these supporting 
materials and documentation. Such access will be provided in 
appropriate formats (e.g., paper copies, electronic remote access by 
computer, microfilm, or microfiche) through the U.S. Government Host 
Team to Inspection Teams during the inspection period or as otherwise 
agreed upon by the Inspection Team and Host Team Leader. If a facility 
does not have access to records for activities that took place under 
previous ownership, the previous owner must make such records available 
to the Host Team for provision to the Inspection Team in accordance 
with section 305 of the Act.
    (f) Effect of facility agreements. Routine inspections at 
facilities for which the United States has concluded a facility 
agreement with the OPCW will be conducted in accordance with the 
facility agreement. The existence of a facility agreement does not in 
any way limit the right of the owner, operator, occupant, or agent in 
charge of the facility to withhold consent to an inspection request.
    (g) Hours of inspections. Consistent with the provisions of the 
Convention, the Host Team will ensure, to the extent possible, that 
each inspection is commenced, conducted, and concluded during ordinary 
working hours, but no inspection shall be prohibited or otherwise 
disrupted from commencing, continuing or concluding during other hours.
    (h) Health and safety regulations and requirements. In carrying out 
their activities, the Inspection Team and Host Team shall observe 
federal, state, and local health and safety regulations and health and 
safety requirements established at the inspection site, including those 
for the protection of controlled environments within a facility and for 
personal safety. Such health and safety regulations and requirements 
will be set forth in, but will not necessarily be limited to, the 
facility agreement, if applicable.
    (i) Preliminary findings. Upon completion of an inspection, the 
Inspection Team will meet with the Host Team and facility personnel to 
review the written preliminary findings of the Inspection Team and to 
clarify ambiguities. The Host Team will discuss the preliminary 
findings with the facility, and the Host Team Leader will take into 
consideration the facility's input when providing official comments on 
the preliminary findings to the Inspection Team. This meeting will be 
completed not later than 24 hours after the completion of the 
inspection.


Sec.  716.5  Notification, duration and frequency of inspections.

    (a) Inspection notification. (1)(i) Content of notice. Inspections 
of facilities may be made only upon issuance of written notice by the 
United States National Authority (USNA) to the owner and to the 
operator, occupant or agent in charge of the premises to be inspected. 
BIS will also provide a separate inspection notification to the 
inspection point of contact identified in declarations submitted by the 
facility. If the United States is unable to provide actual written 
notice to the owner, operator, or agent in charge, BIS (or the Federal 
Bureau of Investigation, if BIS is unable) may post notice prominently 
at the facility to be inspected. The notice shall include all 
appropriate information provided by the OPCW to the USNA concerning:
    (A) The type of inspection;
    (B) The basis for the selection of the facility or location for the 
type of inspection sought;
    (C) The time and date that the inspection will begin and the period 
covered by the inspection; and
    (D) The names and titles of the Inspection Team members.
    (ii) Consent to inspection. In addition to appropriate information 
provided by the OPCW in its notification to the USNA, BIS's inspection 
notification will request that the facility indicate whether it will 
consent to an inspection, and will state whether an advance team is 
available to assist the site in preparation for the inspection. If an 
advance team is available, facilities that request advance team 
assistance are not required to reimburse the U.S. Government for costs 
associated with these activities. If a facility does not agree to 
provide consent to an inspection within four hours of receipt of the 
inspection notification, BIS will seek an administrative warrant.
    (iii) The following table sets forth the notification procedures 
for inspection:

                       Table to Sec.   716.5(a)(1)
------------------------------------------------------------------------
          Activity                Agency Action        Facility action
------------------------------------------------------------------------
(A) OPCW notification of      (1) U.S. National     Acknowledges receipt
 inspection.                   Authority transmits   of facsimile.
                               actual written
                               notice and
                               inspection
                               authorization to
                               the owner and
                               operator, occupant,
                               or agent in charge
                               via facsimile
                               within 6 hours.

[[Page 70797]]

 
                              (2) Upon              (A) Indicates
                               notification from     whether it grants
                               the U.S. National     consent.
                               Authority, BIS       (B) May request
                               immediately           advance team
                               transmits             support. No
                               inspection            requirement for
                               notification via      reimbursement of
                               facsimile to the      U.S. Government
                               inspection point of   services.
                               contact to
                               ascertain whether
                               the facility (i)
                               grants consent and
                               (ii) requests
                               assistance in
                               preparing for the
                               inspection. In
                               absence of consent
                               within four hours
                               of facility
                               receipt, BIS
                               intends to seek an
                               administrative
                               warrant.
(B) Preparation for           BIS advance team      If advance team
 inspection.                   generally arrives     support is
                               in the vicinity of    provided, facility
                               the facility to be    works with the
                               inspected 1-2 days    advance team
                               after OPCW            oninspection-
                               notification for      related issues.
                               logistical and
                               administrative
                               preparations.
------------------------------------------------------------------------

    (2) Timing of notice. (i) Schedule 1 facilities. For declared 
Schedule 1 facilities, the Technical Secretariat will notify the USNA 
of an initial inspection not less than 72 hours prior to arrival of the 
Inspection Team in the United States, and will notify the USNA of a 
routine inspection not less than 24 hours prior to arrival of the 
Inspection Team in the United States. The USNA will provide written 
notice to the owner and to the operator, occupant or agent in charge of 
the premises within six hours of receiving notification from the OPCW 
Technical Secretariat or as soon as possible thereafter. BIS will 
provide Host Team notice to the inspection point of contact of the 
facility as soon as possible after the OPCW notifies the USNA of the 
inspection.
    (ii) Schedule 2 plant sites. For declared Schedule 2 plant sites, 
the Technical Secretariat will notify the USNA of an initial or routine 
inspection not less than 48 hours prior to arrival of the Inspection 
Team at the plant site to be inspected. The USNA will provide written 
notice to the owner and to the operator, occupant or agent in charge of 
the premises within six hours of receiving notification from the OPCW 
Technical Secretariat or as soon as possible thereafter. BIS will 
provide Host Team notice to the inspection point of contact at the 
plant site as soon as possible after the OPCW notifies the USNA of the 
inspection.
    (iii) Schedule 3 and UDOC plant sites. For declared Schedule 3 and 
UDOC plant sites, the Technical Secretariat will notify the USNA of a 
routine inspection not less than 120 hours prior to arrival of the 
Inspection Team at the plant site to be inspected. The USNA will 
provide written notice to the owner and to the operator, occupant or 
agent in charge of the premises within six hours of receiving 
notification from the OPCW Technical Secretariat or as soon as possible 
thereafter. BIS will provide Host Team notice to the inspection point 
of contact of the plant site as soon as possible after the OPCW 
notifies the USNA of the inspection.
    (b) Period of inspections. (1) Schedule 1 facilities. For a 
declared Schedule 1 facility, the Convention does not specify a maximum 
duration for an initial inspection. The estimated period of routine 
inspections will be as stated in the facility agreement, unless 
extended by agreement between the Inspection Team and the Host Team 
Leader, and will be based on the risk to the object and purpose of the 
Convention posed by the quantities of chemicals produced, the 
characteristics of the facility and the nature of the activities 
carried out there. The Host Team Leader will consult with the inspected 
facility on any request for extension of an inspection prior to making 
an agreement with the Inspection Team. Activities involving the pre-
inspection briefing and preliminary findings are in addition to 
inspection activities. See Sec.  716.4(c) and (i) for a description of 
these activities.
    (2) Schedule 2 plant sites. For declared Schedule 2 plant sites, 
the maximum duration of initial and routine inspections shall be 96 
hours, unless extended by agreement between the Inspection Team and the 
Host Team Leader. The Host Team Leader will consult with the inspected 
plant site on any request for extension of an inspection prior to 
making an agreement with the Inspection Team. Activities involving the 
pre-inspection briefing and preliminary findings are in addition to 
inspection activities. See Sec.  716.4(c) and (i) for a description of 
these activities.
    (3) Schedule 3 and UDOC plant sites. For declared Schedule 3 or 
UDOC plant sites, the maximum duration of routine inspections shall be 
24 hours, unless extended by agreement between the Inspection Team and 
the Host Team Leader. The Host Team Leader will consult with the 
inspected plant site on any request for extension of an inspection 
prior to making an agreement with the Inspection Team. Activities 
involving the pre-inspection briefing and preliminary findings are in 
addition to inspection activities. See Sec.  716.4(c) and (i) for a 
description of these activities.
    (c) Frequency of inspections. The frequency of inspections is as 
follows:
    (1) Schedule 1 facilities. As provided by the Convention, the 
frequency of inspections at declared Schedule 1 facilities is 
determined by the OPCW based on the risk to the object and purpose of 
the Convention posed by the quantities of chemicals produced, the 
characteristics of the facility and the nature of the activities 
carried out at the facility. The frequency of inspections will be 
stated in the facility agreement.
    (2) Schedule 2 plant sites. As provided by the Convention and the 
Act, the maximum number of inspections at declared Schedule 2 plant 
sites is 2 per calendar year per plant site. The OPCW will determine 
the frequency of routine inspections for each declared Schedule 2 plant 
site based on the Inspection Team's assessment of the risk to the 
object and purpose of the Convention posed by the relevant chemicals, 
the characteristics of the plant site, and the nature of the activities 
carried out there. The frequency of inspections will be stated in the 
facility agreement, if applicable.
    (3) Schedule 3 plant sites. As provided by the Convention, no 
declared Schedule 3 plant site may receive more than two inspections 
per calendar year and the combined number of inspections of Schedule 3 
and UDOC plant sites in the United State may not exceed 20 per calendar 
year.
    (4) UDOC plant sites. As provided by the Convention, no declared 
UDOC plant site may receive more than two inspections per calendar year 
and the combined number of inspections of Schedule 3 and UDOC plant 
sites in the United States may not exceed 20 per calendar year.


Sec.  716.6  Facility agreements.

    (a) Description and requirements. A facility agreement is a site-
specific agreement between the U.S.

[[Page 70798]]

Government and the OPCW. Its purpose is to define procedures for 
inspections of a specific declared facility that is subject to 
inspection because of the type or amount of chemicals it produces, 
processes or consumes.
    (1) Schedule 1 facilities. The Convention requires that facility 
agreements be concluded between the United States and the OPCW for all 
declared Schedule 1 facilities. For new Schedule 1 production 
facilities declared pursuant to Sec.  712.4 of the CWCR, the U.S. 
National Authority, in coordination with Department of Commerce, will 
conclude a facility agreement with the OPCW before the facility begins 
producing above 100 grams aggregate of Schedule 1 chemicals.
    (2) Schedule 2 plant sites. The USNA will ensure that such facility 
agreements are concluded with the OPCW unless the owner, operator, 
occupant or agent in charge of the plant site and the OPCW Technical 
Secretariat agree that such a facility agreement is not necessary.
    (3) Schedule 3 and UDOC plant sites. If the owner, operator, 
occupant or agent in charge of a declared Schedule 3 or UDOC plant site 
requests a facility agreement, the USNA will ensure that a facility 
agreement for such a plant site is concluded with the OPCW.
    (b) Notification; negotiation of draft and final facility 
agreements; and conclusion of facility agreements. Prior to the 
development of a facility agreement, BIS shall notify the owner, 
operator, occupant, or agent in charge of the facility, and if the 
owner, operator, occupant or agent in charge so requests, the notified 
person may participate in preparations with BIS representatives for the 
negotiation of such an agreement. During the initial or routine 
inspection of a declared facility, the Inspection Team and the Host 
Team will negotiate a draft facility agreement or amendment to a 
facility agreement. To the maximum extent practicable consistent with 
the Convention, the owner and the operator, occupant or agent in charge 
of the facility may observe facility agreement negotiations between the 
U.S. Government and OPCW. As a general rule, BIS will consult with the 
affected facility on the contents of the agreements and take facility's 
into consideration during negotiations. BIS will participate in the 
negotiation of, and approve, all final facility agreements with the 
OPCW. Facilities will be notified of and have the right to observe 
final facility agreement negotiations between the United States and 
OPCW to the maximum extent practicable, consistent with the Convention. 
Prior to the conclusion of a final facility agreement, the affected 
facility will have an opportunity to comment on the facility agreement. 
BIS will give consideration to such comments prior to approving final 
facility agreements with the OPCW. The United States National Authority 
shall ensure that facility agreements for Schedule 1, Schedule 2, 
Schedule 3 and UDOC facilities are concluded, as appropriate, with the 
OPCW in coordination with BIS.
    (c) [Reserved]
    (d) Further information. For further information about facility 
agreements, please write or call: Treaty Compliance Division, Bureau of 
Industry and Security, U.S. Department of Commerce, 1555 Wilson 
Boulevard, Suite 700, Arlington, VA 22209, Telephone: (703) 605-4400.


Sec.  716.7  Samples.

    The owner, operator, occupant or agent in charge of a facility must 
provide a sample as provided for in the Convention and consistent with 
requirements set forth by the Director of the United States National 
Authority in 22 CFR part 103. Analysis will be restricted to verifying 
the absence of undeclared scheduled chemicals, unless otherwise agreed 
after consultation with the facility representative.


Sec.  716.8  On-site monitoring of Schedule 1 facilities.

    Declared Schedule 1 facilities are subject to verification by 
monitoring with on-site instruments as provided by the Convention. For 
facilities subject to the CWCR, however, such monitoring is not 
anticipated. The U.S. Government will ensure that any monitoring that 
may be requested by the OPCW is carried out pursuant to the Convention 
and U.S. law.


Sec.  716.9  Report of inspection-related costs.

    Pursuant to section 309(b)(5) of the Act, any facility that has 
undergone any inspections pursuant to the CWCR during a given calendar 
year must report to BIS within 90 days of an inspection on its total 
costs related to that inspection. Although not required, such reports 
should identify categories of costs separately if possible, such as 
personnel costs (production-line, administrative, legal), costs of 
producing records, and costs associated with shutting down chemical 
production or processing during inspections, if applicable. This 
information should be reported to BIS on company letterhead at the 
address given in Sec.  716.6(d), with the following notation: ``Attn: 
Report of inspection-related costs.''


Sec.  716.10  Post inspection activities.

    BIS will forward a copy of the final inspection report to the 
inspected facility for their review upon receipt from the OPCW. 
Facilities may submit comments on the final inspection report to BIS, 
and BIS will consider them, to the extent possible, when commenting on 
the final report. BIS will also send facilities a post-inspection 
letter detailing the issues that require follow-up action, e.g., 
amended declaration requirement (see Sec. Sec.  712.7(d), 713.5(d), 
714.4(d), and 715.2(c) of the CWCR), information on the status of the 
draft facility agreement, if applicable, and the date on which the 
report on inspection-related costs (see Sec.  716.9 of the CWCR) is due 
to BIS.

                Supplement No. 1 to Part 716 Notification, Duration and Frequency of Inspections
----------------------------------------------------------------------------------------------------------------
                                                                                                  Unscheduled
                                      Schedule 1          Schedule 2          Schedule 3       discrete organic
                                                                                                   chemicals
----------------------------------------------------------------------------------------------------------------
Notice of initial or routine      72 hours prior to   48 hours prior to   120 hours prior to  120 hours prior to
 inspection to USNA.               arrival of          arrival of          arrival of          arrival of
                                   Inspection Team     Inspection Team     Inspection Team     Inspection Team
                                   at the point of     at the plant site.  at the plant site.  at the plant
                                   entry (initial;                                             site.
                                   24 hours prior to
                                   arrival of
                                   Inspection Team
                                   at the point of
                                   entry (routine).
Duration of inspection..........  As specified in     96 hours..........  24 hours..........  24 hours.
                                   facility
                                   agreement.

[[Page 70799]]

 
Maximum number of inspections...  Determined by OPCW  2 per calendar      2 per calendar      2 per calendar
                                   based on            year per plant      year per plant      year per plant
                                   characteristics     site.               site.               site.
                                   of facility and
                                   the nature of the
                                   activities
                                   carried out at
                                   the facility.
                                 ---------------------
Notification of challenge               12 hours prior to arrival of inspection team at the point of entry
 inspection to USNA*.
                                 ---------------------
Duration of Challenge                                                84 hours
 inspection*.
----------------------------------------------------------------------------------------------------------------
* See part 717 of this subchapter

Supplement No. 2 To Part 716--[RESERVED]

Supplement No. 3 To Part 716--[RESERVED]

PART 717--CLARIFICATION OF POSSIBLE NON-COMPLIANCE WITH THE 
CONVENTION; CHALLENGE INSPECTION PROCEDURES

Sec.
717. 1 Clarification procedures; challenge inspection requests 
pursuant to Article IX of the Convention.
717.2 Challenge inspections.
717.3 Samples.
717.4 Report of inspection-related costs.
717.5 Post inspection activities.

    Authority: 22 U.S.C. 6701 et seq., 2681; E.O. 13128, 64 FR 
36703, 3 CFR, 1999 Comp., p. 199.


Sec.  717.1  Clarification procedures; challenge inspection requests 
pursuant to Article IX of the Convention.

    (a) Article IX of the Convention sets forth procedures for 
clarification, between States Parties, of issues about compliance with 
the Convention. States Parties may attempt to resolve such issues 
through consultation between themselves or through the Organization for 
the Prohibition of Chemical Weapons (OPCW) or a State Party may request 
the OPCW to conduct an on-site challenge inspection of any facility or 
location in the territory or in any other place under the jurisdiction 
or control of any other State Party. Such an on-site challenge 
inspection request shall be for the sole purpose of clarifying and 
resolving any questions concerning possible non-compliance with the 
Convention.
    (b) Any person or facility subject to the CWCR (15 CFR parts 710 
through 729) must, within five working days from receipt of an official 
written BIS request for clarification, provide information required by 
BIS pursuant to an Article IX clarification request from another State 
Party, or the OPCW, concerning possible non-compliance with the CWC. 
BIS will contact the person or facility subject to the Article IX 
clarification as early as practical prior to the issuance of an 
official written request for clarification.


Sec.  717.2  Challenge inspections.

    Persons or facilities, whether or not they are required to submit 
declarations or reports, may be subject to a challenge inspection by 
the OPCW concerning possible non-compliance with the requirements of 
the Convention, other than U.S. Government facilities as defined in 
Sec.  710.2(a). BIS will host and escort the international Inspection 
Team for challenge inspections in the United States of such persons or 
facilities.
    (a) Warrants. In instances where consent is not provided by the 
owner, operator, occupant or agent in charge of the facility or 
location, BIS will assist the Department of Justice in seeking a 
criminal warrant as provided by the Act. The existence of a facility 
agreement does not in any way limit the right of the operator of the 
facility to withhold consent to a challenge inspection request.
    (b) Notification of challenge inspection. Challenge inspections may 
be made only upon issuance of written notice by the United States 
National Authority (USNA) to the owner and to the operator, occupant or 
agent in charge of the premises. BIS will provide inspection 
notification to the inspection point of contact at such time that a 
person or facility has been clearly established, if possible, and when 
such notification is deemed appropriate. If the United States is unable 
to provide actual written notice to the owner, operator, or agent in 
charge, BIS (or another appropriate agency, if BIS is unable) may post 
notice prominently at the plant, plant site or other facility or 
location to be inspected.
    (1) Timing. The OPCW will notify the USNA of a challenge inspection 
not less than 12 hours before the planned arrival of the Inspection 
Team at the U.S. point of entry. Written notice will be provided to the 
owner and to the operator, occupant, or agent in charge of the premises 
at any appropriate time determined by the USNA after receipt of 
notification from the OPCW Technical Secretariat.
    (2)(i) Content of notice. The notice shall include all appropriate 
information provided by the OPCW to the United States National 
Authority concerning:
    (A) The type of inspection;
    (B) The basis for the selection of the facility or locations for 
the type of inspection sought;
    (C) The time and date that the inspection will begin and the period 
covered by the inspection;
    (D) The names and titles of the Inspection Team members; and
    (E) All appropriate evidence or reasons provided by the requesting 
State Party for seeking the inspection.
    (ii) In addition to appropriate information provided by the OPCW in 
its notification to the USNA, BIS's inspection notification to the 
facility will state whether an advance team is available to assist the 
site in preparation for the inspection. If an advance team is 
available, facilities that request advance team assistance are not 
required to reimburse the U.S. Government for costs associated with 
these activities. If a facility does not agree to provide consent to an 
inspection within four hours of receipt of the inspection notification, 
BIS will assist the Department of Justice in seeking a criminal 
warrant.
    (c) Period of inspection. Challenge inspections will not exceed 84 
hours, unless extended by agreement between the Inspection Team and the 
Host Team Leader.
    (d) Scope and conduct of inspections. (1) General. Each inspection 
shall be limited to the purposes described in this section and 
conducted in the least intrusive manner, consistent with the

[[Page 70800]]

effective and timely accomplishment of its purpose as provided in the 
Convention.
    (2) Scope of inspections. If an owner, operator, occupant, or agent 
in charge of a facility or location consents to a challenge inspection, 
the inspection will be conducted in accordance with the provisions of 
Article IX and applicable provisions of the Verification Annex of the 
Convention. If consent is not granted, the inspection will be conducted 
in accordance with a criminal warrant, as provided by the Act, and in 
accordance with the provisions of Article IX and applicable provisions 
of the Verification Annex of the Convention.
    (3) Hours of inspections. Consistent with the provisions of the 
Convention, the Host Team will ensure, to the extent possible, that 
each inspection is commenced, conducted, and concluded during ordinary 
working hours, but no inspection shall be prohibited or otherwise 
disrupted from commencing, continuing or concluding during other hours.
    (4) Health and safety regulations and requirements. In carrying out 
their activities, the Inspection Team and Host Team shall observe 
federal, state, and local health and safety regulations and health and 
safety requirements established at the inspection site, including those 
for the protection of controlled environments within a facility and for 
personal safety.
    (5) Pre-inspection briefing. Upon arrival of the Inspection Team 
and the Host Team in the vicinity of the inspection site and before 
commencement of the inspection, facility representatives will provide 
the Inspection Team and the Host Team with a pre-inspection briefing 
concerning the facility, the activities carried out there, safety 
measures, and administrative and logistical arrangements necessary for 
the inspection, which may be aided with the use of maps and other 
documentation as deemed appropriate by the facility. The time spent for 
the briefing will be limited to the minimum necessary and may not 
exceed three hours.


Sec.  717.3  Samples.

    The owner, operator, occupant or agent in charge of a facility or 
location must provide a sample, as provided for in the Convention and 
consistent with requirements set forth by the Director of the United 
States National Authority in 22 CFR part 103. Analysis may be 
restricted to verifying the presence or absence of Schedule 1, 2, or 3 
chemicals, or appropriate degradation products, unless agreed 
otherwise.


Sec.  717.4  Report of inspection-related costs.

    Pursuant to section 309(b)(5) of the Act, any facility that has 
undergone any inspections pursuant to this subchapter during a given 
calendar year must report to BIS within 90 days of an inspection on its 
total costs related to that inspection. Although not required, such 
reports should identify categories of costs separately if possible, 
such as personnel costs (production-line, administrative, legal), costs 
of producing records, and costs associated with shutting down chemical 
production or processing during inspections, if applicable. This 
information should be reported to BIS on company letterhead at the 
address given in Sec.  716.6(d) of this subchapter, with the following 
notation: ``ATTN: Report of Inspection-related Costs.''


Sec.  717.5  Post inspection activities.

    BIS will forward a copy of the final inspection report to the 
inspected facility for their review upon receipt from the OPCW. 
Facilities may submit comments on the final inspection report to BIS, 
and BIS will consider them, to the extent possible, when commenting on 
the final report. BIS will also send facilities a post-inspection 
letter detailing the issues that require follow-up action and the date 
on which the report on inspection-related costs (see Sec.  717.4 of the 
CWCR) is due to BIS.

PART 718--CONFIDENTIAL BUSINESS INFORMATION

Sec.
718.1 Definition.
718.2 Identification of confidential business information.
718.3 Disclosure of confidential business information.
Supplement No. 1 to Part 718--Confidential Business Information 
Declared or Reported

    Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 
CFR, 1999 Comp., p. 199.


Sec.  718.1  Definition.

    The Chemical Weapons Convention Implementation Act of 1998 (``the 
Act'') defines confidential business information as information 
included in categories specifically identified in sections 103(g)(1) 
and 304(e)(2) of the Act and other trade secrets as follows:
    (a) Financial data;
    (b) Sales and marketing data (other than shipment data);
    (c) Pricing data;
    (d) Personnel data;
    (e) Research data;
    (f) Patent data;
    (g) Data maintained for compliance with environmental or 
occupational health and safety regulations;
    (h) Data on personnel and vehicles entering and personnel and 
personal passenger vehicles exiting the site;
    (i) Any chemical structure;
    (j) Any plant design, process, technology or operating method;
    (k) Any operating requirement, input, or result that identifies any 
type or quantity of chemicals used, processed or produced;
    (l) Any commercial sale, shipment or use of a chemical; or
    (m) Information that qualifies as a trade secret under 5 U.S.C. 
552(b)(4) (Freedom of Information Act), provided such trade secret is 
obtained from a U.S. person or through the U.S. Government.


Sec.  718.2  Identification of confidential business information.

    (a) General. Certain confidential business information submitted to 
BIS in declarations and reports does not need to be specifically 
identified and marked by the submitter, as described in paragraph (b) 
of this section. Other confidential business information submitted to 
BIS in declarations and reports and confidential business information 
provided to the Host Team during inspections must be identified by the 
inspected facility so that the Host Team can arrange appropriate 
marking and handling.
    (b) Confidential business information contained in declarations and 
reports. (1) BIS has identified those data fields on the declaration 
and report forms that request ``confidential business information'' as 
defined by the Act. These data fields are identified in the table 
provided in Supplement No. 1 to this part.
    (2) You must specifically identify in a cover letter submitted with 
your declaration or report any additional information on a declaration 
or report form (i.e., information not provided in one of the data 
fields listed in the table included in Supplement No. 1 to this part), 
including information provided in attachments to Form A or Form B, that 
you believe is confidential business information, as defined by the 
Act, and must describe how disclosure would likely result in 
competitive harm.


    Note to paragraph (b): BIS has also determined that descriptions 
of Schedule 1 facilities submitted with Initial Declarations as 
attachments to Form A contain confidential business information, as 
defined by the Act.

    (c) Confidential business information contained in advance 
notifications. Information contained in advance notifications of 
exports and imports of

[[Page 70801]]

Schedule 1 chemicals is not subject to the confidential business 
information provisions of the Act. You must identify information in 
your advance notifications of Schedule 1 imports that you consider to 
be privileged and confidential, and describe how disclosure would 
likely result in competitive harm. See Sec.  718.3(b) for provisions on 
disclosure to the public of such information by the U.S. Government.
    (d) Confidential business information related to inspections 
disclosed to, reported to, or otherwise acquired by, the U.S. 
Government. (1) During inspections, certain confidential business 
information, as defined by the Act, may be disclosed to the Host Team. 
Facilities being inspected are responsible for identifying confidential 
business information to the Host Team, so that if it is disclosed to 
the Inspection Team, appropriate marking and handling can be arranged, 
in accordance with the provisions of the Convention (see Sec.  
718.3(c)(1)(ii)). Confidential business information not related to the 
purpose of an inspection or not necessary for the accomplishment of an 
inspection, as determined by the Host Team, may be removed from sight, 
shrouded, or otherwise not disclosed.
    (2) Before or after inspections, confidential business information 
related to an inspection that is contained in any documents or that is 
reported to, or otherwise acquired by, the U.S. Government, such as 
facility information for pre-inspection briefings, facility agreements, 
and inspection reports, must be identified by the facility so that it 
may be appropriately marked and handled. If the U.S. Government creates 
derivative documents from such documents or reported information, they 
will also be marked and handled as confidential business information.


Sec.  718.3  Disclosure of confidential business information.

    (a) General. Confidentiality of information will be maintained by 
BIS consistent with the non-disclosure provisions of the Act, the 
Export Administration Regulations (15 CFR parts 730 through 799), the 
International Traffic in Arms Regulations (22 CFR parts 120 through 
130), and applicable exemptions under the Freedom of Information Act, 
as appropriate.
    (b) Disclosure of confidential business information contained in 
advance notifications. Information contained in advance notifications 
of exports and imports of Schedule 1 chemicals is not subject to the 
confidential business information provisions of the Act. Disclosure of 
such information will be in accordance with the provisions of the 
relevant statutory and regulatory authorities as follows:
    (1) Exports of Schedule 1 chemicals. Confidentiality of all 
information contained in these advance notifications will be maintained 
consistent with the non-disclosure provisions of the Export 
Administration Regulations (15 CFR parts 730 through 799), the 
International Traffic in Arms Regulations (22 CFR parts 120 through 
130), and applicable exemptions under the Freedom of Information Act, 
as appropriate; and
    (2) Imports of Schedule 1 chemicals. Confidentiality of information 
contained in these advance notifications will be maintained pursuant to 
applicable exemptions under the Freedom of Information Act.
    (c) Disclosure of confidential business information pursuant to 
Sec.  404(b) of the Act. (1) Disclosure to the Organization for the 
Prohibition of Chemical Weapons (OPCW).
    (i) As provided by Section 404(b)(1) of the Act, the U.S. 
Government will disclose or otherwise provide confidential business 
information to the Technical Secretariat of the OPCW or to other States 
Parties to the Convention, in accordance with provisions of the 
Convention, particularly with the provisions of the Annex on the 
Protection of Confidential Information (Confidentiality Annex).
    (ii) Convention provisions. (A) The Convention provides that States 
Parties may designate information submitted to the Technical 
Secretariat as confidential, and requires the OPCW to limit access to, 
and prevent disclosure of, information so designated, except that the 
OPCW may disclose certain confidential information submitted in 
declarations to other States Parties if requested. The OPCW has 
developed a classification system whereby States Parties may designate 
the information they submit in their declarations as ``restricted,'' 
``protected,'' or ``highly protected,'' depending on the sensitivity of 
the information. Other States Parties are obligated, under the 
Convention, to store and restrict access to information which they 
receive from the OPCW in accordance with the level of confidentiality 
established for that information.
    (B) OPCW Inspection Team members are prohibited, under the terms of 
their employment contracts and pursuant to the Confidentiality Annex of 
the Convention, from disclosing to any unauthorized persons, for five 
years after termination of their employment, any confidential 
information coming to their knowledge or into their possession in the 
performance of their official duties.
    (iii) U.S. Government designation of information to the Technical 
Secretariat. It is the policy of the U.S. Government to designate all 
facility information it provides to the Technical Secretariat in 
declarations, reports and Schedule 1 advance notifications as 
``protected.'' It is the policy of the U.S. Government to designate 
confidential business information that it discloses to Inspection Teams 
during inspections as ``protected'' or ``highly protected,'' depending 
on the sensitivity of the information. The Technical Secretariat is 
responsible for storing and limiting access to any confidential 
business information contained in a document according to its 
established procedures.
    (2) Disclosure to Congress. Section 404(b)(2) of the Act provides 
that the U.S. Government must disclose confidential business 
information to any committee or subcommittee of Congress with 
appropriate jurisdiction upon the written request of the chairman or 
ranking minority member of such committee or subcommittee. No such 
committee or subcommittee, and no member and no staff member of such 
committee or subcommittee, may disclose such information or material 
except as otherwise required or authorized by law.
    (3) Disclosure to other Federal agencies for law enforcement 
actions and disclosure in enforcement proceedings under the Act. 
Section 404(b)(3) of the Act provides that the U.S. Government must 
disclose confidential business information to other Federal agencies 
for enforcement of the Act or any other law, and must disclose such 
information when relevant in any proceeding under the Act. Disclosure 
will be made in such manner as to preserve confidentiality to the 
extent practicable without impairing the proceeding. Section 719.14(b) 
of the CWCR provides that all hearings will be closed, unless the 
Administrative Law Judge for good cause shown determines otherwise. 
Section 719.20 of the CWCR provides that parties may request that the 
administrative law judge segregate and restrict access to confidential 
business information contained in material in the record of an 
enforcement proceeding.
    (4) Disclosure to the public; national interest determination. 
Section 404(c) of the Act provides that confidential business 
information, as defined by the Act, that is in the possession of the 
U.S. Government, is exempt from public disclosure in response to a 
Freedom of Information Act request, except when

[[Page 70802]]

such disclosure is determined to be in the national interest.
    (i) National interest determination. The United States National 
Authority (USNA), in coordination with the CWC interagency group, shall 
determine on a case-by-case basis if disclosure of confidential 
business information in response to a Freedom of Information Act 
request is in the national interest.
    (ii) Notification of intent to disclose pursuant to a national 
interest determination. The Act provides for notification to the 
affected person of intent to disclose confidential business information 
based on the national interest, unless such notification of intent to 
disclose is contrary to national security or law enforcement needs. If, 
after coordination with the agencies that constitute the CWC 
interagency group, the USNA does not determine that such notification 
of intent to disclose is contrary to national security or law 
enforcement needs, the USNA will notify the person that submitted the 
information and the person to whom the information pertains of the 
intent to disclose the information.

Supplement No. 1 to Part 718--Confidential Business Information Declared
                              or Reported*
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Schedule 1 forms:                       Fields containing confidential
                                         business information
  Certification Form..................  NONE
  Form 1-1............................  NONE
  Form 1-2............................  All fields
  Form 1-2A...........................  All fields
  Form 1-2B...........................  All fields
  Form 1-3............................  All fields
  Form 1-4............................  All fields
Schedule 2 Forms:
  Certification Form..................  NONE
  Form 2-1............................  NONE
  Form 2-2............................  Question 2-2.8
  Form 2-3............................  All fields
  Form 2-3A...........................  All fields
  Form 2-3B...........................  All fields
  Form 2-3C...........................  All fields
  Form 2-4............................  All fields
Schedule 3 Forms:
  Certification Form..................  NONE
  Form 3-1............................  NONE
  Form 3-2 NONE.......................
  Form 3-3 All fields.................
  Form 3-4 All fields.................
Unscheduled Discrete Organic Chemicals
 Forms
  Certification Form..................  NONE
  Form UDOC...........................  NONE
FORMS A and B and attachments (all      Case-by-case; must be identified
 Schedules and UDOCs).                   by submitter.
------------------------------------------------------------------------
* This table lists those data fields on the Declaration and Report Forms
  that request ``confidential business information'' (CBI) as defined by
  the Act (sections 103(g) and 304(e)(2)). As provided by section 404(a)
  of the Act, CBI is exempt from disclosure in response to a Freedom of
  Information Act (FOIA) request under sections 552(b)(3) and 552(b)(4)
  (5 U.S.C.A. 552(b)(3)-(4)), unless a determination is made, pursuant
  to section 404(c) of the Act, that such disclosure is in the national
  interest. Other FOIA exemptions to disclosure may also apply. You must
  identify CBI provided in Form A and/or Form B attachments, and provide
  the reasons supporting your claim of confidentiality, except that
  Schedule 1 facility technical descriptions submitted with initial
  declarations are always considered to include CBI. If you believe that
  information you are submitting in a data field marked ``none'' in the
  Table is CBI, as defined by the Act, you must identify the specific
  information and provide the reasons supporting your claim of
  confidentiality in a cover letter.

PART 719--ENFORCEMENT

Sec.
719.1 Scope and definitions.
719.2 Violations of the Act subject to administrative and criminal 
enforcement proceedings.
719.3 Violations of the IEEPA subject to judicial enforcement 
proceedings.
719.4 Violations and sanctions under the Act not subject to 
proceedings under the CWCR.
719.5 Initiation of administrative proceedings.
719.6 Request for hearing and answer.
719.7 Representation.
719.8 Filing and service of papers other than the NOVA.
719.9 Summary decision.
719.10 Discovery.
719.11 Subpoenas.
719.12 Matters protected against disclosure.
719.13 Prehearing conference.
719.14 Hearings.
719.15 Procedural stipulations.
719.16 Extension of time.
719.17 Post-hearing submissions.
719.18 Decisions.
719.19 Settlement.
719.20 Record for decision.
719.21 Payment of final assessment.
719.22 Reporting a violation.

    Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 
950, E.O. 13128, 64 FR 36703, 3 CFR, 1999 Comp., p. 199.


Sec.  719.1  Scope and definitions.

    (a) Scope. This part 719 describes the various sanctions that apply 
to violations of the Act and the CWCR. It also establishes detailed 
administrative procedures for certain violations of the Act. The three 
categories of violations are as follows:
    (1) Violations of the Act subject to administrative and criminal 
enforcement proceedings. This CWCR sets forth in Sec.  719.2 violations 
for which the statutory basis is the Act. BIS investigates these 
violations and, for administrative proceedings, prepares charges, 
provides legal representation to the U.S. Government, negotiates 
settlements, and makes recommendations to officials of the Department 
of State with respect to the initiation and resolution of proceedings. 
The administrative procedures applicable to these violations are found 
in Sec. Sec.  719.5 through 719.22 of this part. The Department of 
State gives notice of initiation of administrative proceedings and 
issues orders imposing penalties pursuant to 22 CFR part 103, subpart 
C.
    (2) Violations of the International Emergency Economic Powers Act 
(IEEPA) subject to judicial enforcement proceedings. Section 719.3 sets 
forth violations of the Chemical Weapons Convention for which the 
statutory basis is the IEEPA. BIS refers these violations to the 
Department of Justice for civil or criminal judicial enforcement.
    (3) Violations and sanctions under the Act not subject to 
proceedings under the CWCR. Section 719.4 sets forth violations and 
sanctions under the Act that are not violations of the CWCR and that 
are not subject to proceedings under the CWCR. This section is included 
solely for informational purposes. BIS may assist in investigations of 
these violations, but has no authority to initiate any enforcement 
action under the CWCR.


    Note to paragraph (a): This part 719 does not apply to 
violations of the export requirements imposed pursuant to the 
Chemical Weapons Convention and set forth in the Export 
Administration Regulations (EAR) (15 CFR parts 730 through 799) and 
in the International Traffic in Arms Regulations (ITAR) (22 CFR 
parts 120 through 130).


    (b) Definitions. The following are definitions of terms as used 
only in parts 719 and 720. For definitions of terms applicable to parts 
710 through 722 of this subchapter, see part 710 of this subchapter.
    The Act. The Chemical Weapons Convention Implementation Act of 1998 
(22 U.S.C. 6701-6777).
    Assistant Secretary for Export Enforcement. The Assistant Secretary 
for Export Enforcement, Bureau of Industry and Security, United States 
Department of Commerce.
    Final decision. A decision or order assessing a civil penalty, or 
otherwise

[[Page 70803]]

disposing of or dismissing a case, which is not subject to further 
administrative review, but which may be subject to collection 
proceedings or judicial review in an appropriate Federal court as 
authorized by law.
    IEEPA. The International Emergency Economic Powers Act, as amended 
(50 U.S.C. 1701-1706).
    Office of Chief Counsel. The Office of Chief Counsel for Industry 
and Security, United States Department of Commerce.
    Report. For purposes of parts 719 and 720 of the CWCR, the term 
``report'' means any declaration, report, or advance notification 
required under parts 712 through 715 of the CWCR.
    Respondent. Any person named as the subject of a letter of intent 
to charge, or a Notice of Violation and Assessment (NOVA) and proposed 
order.
    Under Secretary, Bureau of Industry and Security. The Under 
Secretary, Bureau of Industry and Security, United States Department of 
Commerce.


Sec.  719.2  Violations of the Act subject to administrative and 
criminal enforcement proceedings.

    (a) Violations. (1) Refusal to permit entry or inspection. No 
person may willfully fail or refuse to permit entry or inspection, or 
disrupt, delay or otherwise impede an inspection, authorized by the 
Act.
    (2) Failure to establish or maintain records. No person may 
willfully fail or refuse:
    (i) To establish or maintain any record required by the Act or this 
subchapter; or
    (ii) To submit any report, notice, or other information to the 
United States Government in accordance with the Act or the CWCR; or
    (iii) To permit access to or copying of any record that is exempt 
from disclosure under the Act or the CWCR.
    (b) Civil penalties. (1) Civil penalty for refusal to permit entry 
or inspection. Any person that is determined to have willfully failed 
or refused to permit entry or inspection, or to have disrupted, delayed 
or otherwise impeded an authorized inspection, as set forth in 
paragraph (a)(1) of this section, shall pay a civil penalty in an 
amount not to exceed $25,000 for each violation. Each day the violation 
continues constitutes a separate violation.
    (2) Civil penalty for failure to establish or maintain records. Any 
person that is determined to have willfully failed or refused to 
establish or maintain any record or submit any report, notice, or other 
information required by the Act or the CWCR, or to permit access to or 
copying of any record exempt from disclosure under the Act or this 
subchapter as set forth in paragraph (a)(2) of this section, shall pay 
a civil penalty in an amount not to exceed $5,000 for each violation.
    (c) Criminal penalty. Any person that knowingly violates the Act by 
willfully failing or refusing to permit entry or inspection authorized 
by the Act; or by willfully disrupting, delaying or otherwise impeding 
an inspection authorized by the Act; or by willfully failing or 
refusing to establish or maintain any required record, or to submit any 
required report, notice, or other information; or by willfully failing 
or refusing to permit access to or copying of any record exempt from 
disclosure under the Act or the CWCR, shall, in addition to or in lieu 
of any civil penalty that may be imposed, be fined under Title 18 of 
the United States Code, be imprisoned for not more than one year, or 
both.
    (d) Denial of export privileges. Any person in the United States or 
any U.S. national may be subject to a denial of export privileges after 
notice and opportunity for hearing pursuant to part 720 of the CWCR if 
that person has been convicted under Title 18, section 229 of the 
United States Code.


Sec.  719.3  Violations of the IEEPA subject to judicial enforcement 
proceedings.

    (a) Violations. (1) Import restrictions involving Schedule 1 
chemicals. Except as otherwise provided in Sec.  712.2 of the CWCR, no 
person may import any Schedule 1 chemical (See Supplement No. 1 to part 
712 of the CWCR) unless:
    (i) The import is from a State Party;
    (ii) The import is for research, medical, pharmaceutical, or 
protective purposes;
    (iii) The import is in types and quantities strictly limited to 
those that can be justified for such purposes; and
    (iv) The importing person has notified BIS not less than 45 
calendar days before the import pursuant to Sec.  712.6 of the CWCR.
    (2) Import restrictions involving Schedule 2 chemicals. Except as 
otherwise provided in Sec.  713.1 of the CWCR, no person may, on or 
after April 29, 2000, import any Schedule 2 chemical (see Supplement 
No. 1 to part 713 of the CWCR) from any destination other than a State 
Party.
    (b) Civil penalty. A civil penalty not to exceed $11,000 may be 
imposed in accordance with this part on any person for each violation 
of this section.\1\
---------------------------------------------------------------------------

    \1\ The maximum civil penalty allowed under the International 
Emergency Economic Powers Act is $11,000 for any violation committed 
on or after October 23, 1996 (15 CFR 6.4(a)(3)).
---------------------------------------------------------------------------

    (c) Criminal penalty. Whoever willfully violates paragraph (a)(1) 
or (2) of this section shall, upon conviction, be fined not more than 
$50,000, or, if a natural person, imprisoned for not more than ten 
years, or both; and any officer, director, or agent of any corporation 
who knowingly participates in such violation may be punished by like 
fine, imprisonment, or both.\2\
---------------------------------------------------------------------------

    \2\ Alternatively, sanctions may be imposed under 18 U.S.C. 
3571, a criminal code provision that establishes a maximum criminal 
fine for a felony that is the greatest of: (1) The amount provided 
by the statute that was violated; (2) an amount not more than 
$250,000 for an individual, or not more than $500,000 for an 
organization; or (3) an amount based on gain or loss from the 
offense.
---------------------------------------------------------------------------


Sec.  719.4  Violations and sanctions under the Act not subject to 
proceedings under the CWCR.

    (a) Criminal penalties for development or use of a chemical weapon. 
Any person who violates 18 U.S.C. 229 shall be fined, or imprisoned for 
any term of years, or both. Any person who violates 18 U.S.C. 299 and 
by whose action the death of another person is the result shall be 
punished by death or imprisoned for life.
    (b) Civil penalty for development or use of a chemical weapon. The 
Attorney General may bring a civil action in the appropriate United 
States district court against any person who violates 18 U.S.C. 229 
and, upon proof of such violation by a preponderance of the evidence, 
such person shall be subject to pay a civil penalty in an amount not to 
exceed $100,000 for each such violation.
    (c) Criminal forfeiture. (1) Any person convicted under section 
229A(a) of Title 18 of the United States Code shall forfeit to the 
United States irrespective of any provision of State law:
    (i) Any property, real or personal, owned, possessed, or used by a 
person involved in the offense;
    (ii) Any property constituting, or derived from, and proceeds the 
person obtained, directly or indirectly, as the result of such 
violation; and
    (iii) Any of the property used in any manner or part, to commit, or 
to facilitate the commission of, such violation.
    (2) In lieu of a fine otherwise authorized by section 229A(a) of 
Title 18 of the United States Code, a defendant who derived profits or 
other proceeds from an offense may be fined not more than twice the 
gross profits or other proceeds.
    (d) Injunction. (1) The United States may, in a civil action, 
obtain an injunction against:

[[Page 70804]]

    (i) The conduct prohibited under section 229 or 229C of Title 18 of 
the United States Code; or
    (ii) The preparation or solicitation to engage in conduct 
prohibited under section 229 or 229D of Title 18 of the United States 
Code.
    (2) In addition, the United States may, in a civil action, restrain 
any violation of section 306 or 405 of the Act, or compel the taking of 
any action required by or under the Act or the Convention.


Sec.  719.5  Initiation of administrative proceedings.

    (a) Request for Notice of Violation and Assessment (NOVA). The 
Director of the Office of Export Enforcement, Bureau of Industry and 
Security, may request that the Secretary of State initiate an 
administrative enforcement proceeding under this Sec.  719.5 and 22 CFR 
103.7. If the request is in accordance with applicable law, the 
Secretary of State will initiate an administrative enforcement 
proceeding by issuing a NOVA. The Office of Chief Counsel shall serve 
the NOVA as directed by the Secretary of State.
    (b) Letter of intent to charge. The Director of the Office of 
Export Enforcement, Bureau of Industry and Security, may notify a 
respondent by letter of the intent to charge. This letter of intent to 
charge will advise a respondent that BIS has conducted an investigation 
and intends to recommend that the Secretary of State issue a NOVA. The 
letter of intent to charge will be accompanied by a draft NOVA and 
proposed order, and will give the respondent a specified period of time 
to contact BIS to discuss settlement of the allegations set forth in 
the draft NOVA. An administrative enforcement proceeding is not 
initiated by a letter of intent to charge. If the respondent does not 
contact BIS within the specified time, or if the respondent requests 
it, BIS will make its request for initiation of an administrative 
enforcement proceeding to the Secretary of State in accordance with 
paragraph (a) of this section.
    (c) Content of NOVA. The NOVA shall constitute a formal complaint, 
and will set forth the basis for the issuance of the proposed order. It 
will set forth the alleged violation(s) and the essential facts with 
respect to the alleged violation(s), reference the relevant statutory, 
regulatory or other provisions, and state the amount of the civil 
penalty to be assessed. The NOVA will inform the respondent of the 
right to request a hearing pursuant to Sec.  719.6, inform the 
respondent that failure to request such a hearing shall result in the 
proposed order becoming final and unappealable on signature of the 
Secretary of State, and provide payment instructions. A copy of the 
regulations that govern the administrative proceedings will accompany 
the NOVA.
    (d) Proposed order. A proposed order shall accompany every NOVA, 
letter of intent to charge, and draft NOVA. It will briefly set forth 
the substance of the alleged violation(s) and the statutory, regulatory 
or other provisions violated. It will state the amount of the civil 
penalty to be assessed.
    (e) Notice. Notice of the intent to charge or of the initiation of 
formal proceedings shall be given to the respondent (or respondent's 
agent for service of process, or attorney) by sending relevant 
documents, via first class mail, facsimile, or by personal delivery.


Sec.  719.6  Request for hearing and answer.

    (a) Time to answer. If the respondent wishes to contest the NOVA 
and proposed order issued by the Secretary of State, the respondent 
must request a hearing in writing within 15 business days from the 
postmarked date of the NOVA. If the respondent requests a hearing, the 
respondent must answer the NOVA within 30 days from the date of the 
request for hearing. The request for hearing and answer must be filed 
with the Administrative Law Judge (ALJ), along with a copy of the NOVA 
and proposed order, and served on the Office of Chief Counsel, and any 
other address(es) specified in the NOVA, in accordance with Sec.  
719.8.
    (b) Content of answer. The respondent's answer must be responsive 
to the NOVA and proposed order, and must fully set forth the nature of 
the respondent's defense(s). The answer must specifically admit or deny 
each separate allegation in the NOVA; if the respondent is without 
knowledge, the answer will so state and will operate as a denial. 
Failure to deny or controvert a particular allegation will be deemed an 
admission of that allegation. The answer must also set forth any 
additional or new matter the respondent contends supports a defense or 
claim of mitigation. Any defense or partial defense not specifically 
set forth in the answer shall be deemed waived, and evidence thereon 
may be refused, except for good cause shown.
    (c) English required. The request for hearing, answer, and all 
other papers and documentary evidence must be submitted in English.
    (d) Waiver. The failure of the respondent to file a request for a 
hearing and an answer within the times provided constitutes a waiver of 
the respondent's right to appear and contest the allegations set forth 
in the NOVA and proposed order. If no hearing is requested and no 
answer is provided, the proposed order will be signed and become final 
and unappealable.


Sec.  719.7  Representation.

    A respondent individual may appear and participate in person, a 
corporation by a duly authorized officer or employee, and a partnership 
by a partner. If a respondent is represented by counsel, counsel shall 
be a member in good standing of the bar of any State, Commonwealth or 
Territory of the United States, or of the District of Columbia, or be 
licensed to practice law in the country in which counsel resides, if 
not the United States. The U.S. Government will be represented by the 
Office of Chief Counsel. A respondent personally, or through counsel or 
other representative who has the power of attorney to represent the 
respondent, shall file a notice of appearance with the ALJ, or, in 
cases where settlement negotiations occur before any filing with the 
ALJ, with the Office of Chief Counsel.


Sec.  719.8  Filing and service of papers other than the NOVA.

    (a) Filing. All papers to be filed with the ALJ shall be addressed 
to ``CWC Administrative Enforcement Proceedings'' at the address set 
forth in the NOVA, or such other place as the ALJ may designate. Filing 
by United States mail (first class postage prepaid), by express or 
equivalent parcel delivery service, via facsimile, or by hand delivery, 
is acceptable. Filing from a foreign country shall be by airmail or via 
facsimile. A copy of each paper filed shall be simultaneously served on 
all parties.
    (b) Service. Service shall be made by United States mail (first 
class postage prepaid), by express or equivalent parcel delivery 
service, via facsimile, or by hand delivery of one copy of each paper 
to each party in the proceeding. The Department of State is a party to 
cases under the CWCR, but will be represented by the Office of Chief 
Counsel. Therefore, service on the government party in all proceedings 
shall be addressed to Office of Chief Counsel for Industry and 
Security, U.S. Department of Commerce, 14th Street and Constitution 
Avenue, NW., Room H-3839, Washington, DC 20230, or sent via facsimile 
to (202) 482-0085. Service on a respondent shall be to the address to 
which the NOVA and proposed order was sent, or to such other address as 
the respondent may provide. When a party has appeared by counsel or 
other representative, service on counsel or

[[Page 70805]]

other representative shall constitute service on that party.
    (c) Date. The date of filing or service is the day when the papers 
are deposited in the mail or are delivered in person, by delivery 
service, or by facsimile. Refusal by the person to be served, or by the 
person's agent or attorney, of service of a document or other paper 
will be considered effective service of the document or other paper as 
of the date of such refusal.
    (d) Certificate of service. A certificate of service signed by the 
party making service, stating the date and manner of service, shall 
accompany every paper, other than the NOVA and proposed order, filed 
and served on the parties.
    (e) Computation of time. In computing any period of time prescribed 
or allowed by this part, the day of the act, event, or default from 
which the designated period of time begins to run is not to be 
included. The last day of the period so computed is to be included 
unless it is a Saturday, a Sunday, or a legal holiday (as defined in 
Rule 6(a) of the Federal Rules of Civil Procedure), in which case the 
period runs until the end of the next day which is neither a Saturday, 
a Sunday, nor a legal holiday. Intermediate Saturdays, Sundays, and 
legal holidays are excluded from the computation when the period of 
time prescribed or allowed is 7 days or less.


Sec.  719.9  Summary decision.

    The ALJ may render a summary decision disposing of all or part of a 
proceeding on the motion of any party to the proceeding, provided that 
there is no genuine issue as to any material fact and the party is 
entitled to summary decision as a matter of law.


Sec.  719.10  Discovery.

    (a) General. The parties are encouraged to engage in voluntary 
discovery regarding any matter, not privileged, which is relevant to 
the subject matter of the pending proceeding. The provisions of the 
Federal Rules of Civil Procedure relating to discovery apply to the 
extent consistent with this part and except as otherwise provided by 
the ALJ or by waiver or agreement of the parties. The ALJ may make any 
order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense. These 
orders may include limitations on the scope, method, time and place of 
discovery, and provisions for protecting the confidentiality of 
classified or otherwise sensitive information, including Confidential 
Business Information (CBI) as defined by the Act.
    (b) Interrogatories and requests for admission or production of 
documents. A party may serve on any party interrogatories, requests for 
admission, or requests for production of documents for inspection and 
copying, and a party concerned may apply to the ALJ for such 
enforcement or protective order as that party deems warranted with 
respect to such discovery. The service of a discovery request shall be 
made at least 20 days before the scheduled date of the hearing unless 
the ALJ specifies a shorter time period. Copies of interrogatories, 
requests for admission and requests for production of documents and 
responses thereto shall be served on all parties and a copy of the 
certificate of service shall be filed with the ALJ. Matters of fact or 
law of which admission is requested shall be deemed admitted unless, 
within a period designated in the request (at least 10 days after 
service, or within such additional time as the ALJ may allow), the 
party to whom the request is directed serves upon the requesting party 
a sworn statement either denying specifically the matters of which 
admission is requested or setting forth in detail the reasons why the 
party to whom the request is directed cannot truthfully either admit or 
deny such matters.
    (c) Depositions. Upon application of a party and for good cause 
shown, the ALJ may order the taking of the testimony of any person by 
deposition and the production of specified documents or materials by 
the person at the deposition. The application shall state the purpose 
of the deposition and set forth the facts sought to be established 
through the deposition.
    (d) Enforcement. The ALJ may order a party to answer designated 
questions, to produce specified documents or things or to take any 
other action in response to a proper discovery request. If a party does 
not comply with such an order, the ALJ may make a determination or 
enter any order in the proceeding as the ALJ deems reasonable and 
appropriate. The ALJ may strike related charges or defenses in whole or 
in part or may take particular facts relating to the discovery request 
to which the party failed or refused to respond as being established 
for purposes of the proceeding in accordance with the contentions of 
the party seeking discovery. In addition, enforcement by any district 
court of the United States in which venue is proper may be sought as 
appropriate.


Sec.  719.11  Subpoenas.

    (a) Issuance. Upon the application of any party, supported by a 
satisfactory showing that there is substantial reason to believe that 
the evidence would not otherwise be available, the ALJ may issue 
subpoenas to any person requiring the attendance and testimony of 
witnesses and the production of such books, records or other 
documentary or physical evidence for the purpose of the hearing, as the 
ALJ deems relevant and material to the proceedings, and reasonable in 
scope. Witnesses shall be paid the same fees and mileage that are paid 
to witnesses in the courts of the United States. In case of contempt, 
challenge or refusal to obey a subpoena served upon any person pursuant 
to this paragraph, any district court of the United States, in which 
venue is proper, has jurisdiction to issue an order requiring any such 
person to comply with such subpoena. Any failure to obey such order of 
the court is punishable by the court as a contempt thereof.
    (b) Service. Subpoenas issued by the ALJ may be served by any of 
the methods set forth in Sec.  719.8(b).
    (c) Timing. Applications for subpoenas must be submitted at least 
10 days before the scheduled hearing or deposition, unless the ALJ 
determines, for good cause shown, that extraordinary circumstances 
warrant a shorter time.


Sec.  719.12  Matters protected against disclosure.

    (a) Protective measures. The ALJ may limit discovery or 
introduction of evidence or issue such protective or other orders as in 
the ALJ's judgment may be needed to prevent undue disclosure of 
classified or sensitive documents or information, including 
Confidential Business Information as defined by the Act. Where the ALJ 
determines that documents containing classified or sensitive matter 
must be made available to a party in order to avoid prejudice, the ALJ 
may direct the other party to prepare an unclassified and nonsensitive 
summary or extract of the documents. The ALJ may compare the extract or 
summary with the original to ensure that it is supported by the source 
document and that it omits only so much as must remain undisclosed. The 
summary or extract may be admitted as evidence in the record.
    (b) Arrangements for access. If the ALJ determines that the summary 
procedure outlined in paragraph (a) of this section is unsatisfactory, 
and that classified or otherwise sensitive matter must form part of the 
record in order to avoid prejudice to a party, the ALJ may provide the 
parties opportunity to make arrangements that permit a party or a 
representative to have access to such matter without compromising 
sensitive

[[Page 70806]]

information. Such arrangements may include obtaining security 
clearances or giving counsel for a party access to sensitive 
information and documents subject to assurances against further 
disclosure, including a protective order, if necessary.


Sec.  719.13  Prehearing conference.

    (a) On the ALJ's own motion, or on request of a party, the ALJ may 
direct the parties to participate in a prehearing conference, either in 
person or by telephone, to consider:
    (1) Simplification of issues;
    (2) The necessity or desirability of amendments to pleadings;
    (3) Obtaining stipulations of fact and of documents to avoid 
unnecessary proof; or
    (4) Such other matters as may expedite the disposition of the 
proceedings.
    (b) The ALJ may order the conference proceedings to be recorded 
electronically or taken by a reporter, transcribed and filed with the 
ALJ.
    (c) If a prehearing conference is impracticable, the ALJ may direct 
the parties to correspond with the ALJ to achieve the purposes of such 
a conference.
    (d) The ALJ will prepare a summary of any actions agreed on or 
taken pursuant to this section. The summary will include any written 
stipulations or agreements made by the parties.


Sec.  719.14  Hearings.

    (a) Scheduling. Upon receipt of a written and dated request for a 
hearing, the ALJ shall, by agreement with all the parties or upon 
notice to all parties of at least 30 days, schedule a hearing. All 
hearings will be held in Washington, D.C., unless the ALJ determines, 
for good cause shown, that another location would better serve the 
interest of justice.
    (b) Hearing procedure. Hearings will be conducted in a fair and 
impartial manner by the ALJ. All hearings will be closed, unless the 
ALJ for good cause shown determines otherwise. The rules of evidence 
prevailing in courts of law do not apply, and all evidentiary material 
deemed by the ALJ to be relevant and material to the proceeding and not 
unduly repetitious will be received and given appropriate weight, 
except that any evidence of settlement which would be excluded under 
Rule 408 of the Federal Rules of Evidence is not admissible. Witnesses 
will testify under oath or affirmation, and shall be subject to cross-
examination.
    (c) Testimony and record. (1) A verbatim record of the hearing and 
of any other oral proceedings will be taken by reporter or by 
electronic recording, and filed with the ALJ. If any party wishes to 
obtain a written copy of the transcript, that party shall pay the costs 
of transcription. The parties may share the costs if both wish a 
transcript.
    (2) Upon such terms as the ALJ deems just, the ALJ may direct that 
the testimony of any person be taken by deposition and may admit an 
affidavit or declaration as evidence, provided that any affidavits or 
declarations have been filed and served on the parties sufficiently in 
advance of the hearing to permit a party to file and serve an objection 
thereto on the grounds that it is necessary that the affiant or 
declarant testify at the hearing and be subject to cross-examination.
    (d) Failure to appear. If a party fails to appear in person or by 
counsel at a scheduled hearing, the hearing may nevertheless proceed. 
The party's failure to appear will not affect the validity of the 
hearing or any proceeding or action taken thereafter.


Sec.  719.15  Procedural stipulations.

    Unless otherwise ordered and subject to Sec.  719.16, a written 
stipulation agreed to by all parties and filed with the ALJ will modify 
the procedures established by this part.


Sec.  719.16  Extension of time.

    The parties may extend any applicable time limitation by 
stipulation filed with the ALJ before the time limitation expires, or 
the ALJ may, on the ALJ's own initiative or upon application by any 
party, either before or after the expiration of any applicable time 
limitation, extend the time, except that the requirement that a hearing 
be demanded within 15 days, and the requirement that a final agency 
decision be made within 30 days, may not be modified.


Sec.  719.17  Post-hearing submissions.

    All parties shall have the opportunity to file post-hearing 
submissions that may include findings of fact and conclusions of law, 
supporting evidence and legal arguments, exceptions to the ALJ's 
rulings or to the admissibility of evidence, and proposed orders and 
settlements.


Sec.  719.18  Decisions.

    (a) Initial decision. After considering the entire record in the 
case, the ALJ will issue an initial decision based on a preponderance 
of the evidence. The decision will include findings of fact, 
conclusions of law, and a decision based thereon as to whether the 
respondent has violated the Act. If the ALJ finds that the evidence of 
record is insufficient to sustain a finding that a violation has 
occurred with respect to one or more allegations, the ALJ shall order 
dismissal of the allegation(s) in whole or in part, as appropriate. If 
the ALJ finds that one or more violations have been committed, the ALJ 
shall issue an order imposing administrative sanctions.
    (b) Factors considered in assessing penalties. In determining the 
amount of a civil penalty, the ALJ shall take into account the nature, 
circumstances, extent and gravity of the violation(s), and, with 
respect to the respondent, the respondent's ability to pay the penalty, 
the effect of a civil penalty on the respondent's ability to continue 
to do business, the respondent's history of prior violations, the 
respondent's degree of culpability, the existence of an internal 
compliance program, and such other matters as justice may require.
    (c) Certification of initial decision. The ALJ shall immediately 
certify the initial decision and order to the Executive Director of the 
Office of Legal Adviser, U.S. Department of State, 2201 C Street, NW., 
Room 5519, Washington, DC 20520, to the Office of Chief Counsel at the 
address in Sec.  719.8, and to the respondent, by personal delivery or 
overnight mail.
    (d) Review of initial decision. The initial decision shall become 
the final agency decision and order unless, within 30 days, the 
Secretary of State modifies or vacates it, with or without conditions, 
in accordance with 22 CFR 103.8.


Sec.  719.19  Settlement.

    (a) Settlements before issuance of a NOVA. When the parties have 
agreed to a settlement of the case, the Director of the Office of 
Export Enforcement will recommend the settlement to the Secretary of 
State, forwarding a proposed settlement agreement and order, which, in 
accordance with 22 CFR 103.9(a), the Secretary of State will approve 
and sign if the recommended settlement is in accordance with applicable 
law.
    (b) Settlements following issuance of a NOVA. The parties may enter 
into settlement negotiations at any time during the time a case is 
pending before the ALJ. If necessary, the parties may extend applicable 
time limitations or otherwise request that the ALJ stay the proceedings 
while settlement negotiations continue. When the parties have agreed to 
a settlement of the case, the Office of Chief Counsel will recommend 
the settlement to the Secretary of State, forwarding a proposed 
settlement agreement and order, which, in accordance with 22 CFR 
103.9(b), the Secretary will approve

[[Page 70807]]

and sign if the recommended settlement is in accordance with applicable 
law.
    (c) Settlement scope. Any respondent who agrees to an order 
imposing any administrative sanction does so solely for the purpose of 
resolving the claims in the administrative enforcement proceeding 
brought under this part. This reflects the fact that the government 
officials involved have neither the authority nor the responsibility 
for initiating, conducting, settling, or otherwise disposing of 
criminal proceedings. That authority and responsibility are vested in 
the Attorney General and the Department of Justice.
    (d) Finality. Cases that are settled may not be reopened or 
appealed.


Sec.  719.20  Record for decision.

    (a) The record. The transcript of hearings, exhibits, rulings, 
orders, all papers and requests filed in the proceedings, and, for 
purposes of any appeal under Sec.  719.18 or under 22 CFR 103.8, the 
decision of the ALJ and such submissions as are provided for under 
Sec.  719.18 or 22 CFR 103.8 will constitute the record and the 
exclusive basis for decision. When a case is settled, the record will 
consist of any and all of the foregoing, as well as the NOVA or draft 
NOVA, settlement agreement, and order.
    (b) Restricted access. On the ALJ's own motion, or on the motion of 
any party, the ALJ may direct that there be a restricted access portion 
of the record for any material in the record to which public access is 
restricted by law or by the terms of a protective order entered in the 
proceedings. A party seeking to restrict access to any portion of the 
record is responsible, prior to the close of the proceeding, for 
submitting a version of the document(s) proposed for public 
availability that reflects the requested deletion. The restricted 
access portion of the record will be placed in a separate file and the 
file will be clearly marked to avoid improper disclosure and to 
identify it as a portion of the official record in the proceedings. The 
ALJ may act at any time to permit material that becomes declassified or 
unrestricted through passage of time to be transferred to the 
unrestricted access portion of the record.
    (c) Availability of documents. (1) Scope. All NOVAs and draft 
NOVAs, answers, settlement agreements, decisions and orders disposing 
of a case will be displayed on the BIS Freedom of Information Act 
(FOIA) Web site, at http://www.bis.doc.gov/foia, which is maintained by 
the Office of Administration, Bureau of Industry and Security, U.S. 
Department of Commerce. This office does not maintain a separate 
inspection facility. The complete record for decision, as defined in 
paragraphs (a) and (b) of this section will be made available on 
request.
    (2) Timing. The record for decision will be available only after 
the final administrative disposition of a case. Parties may seek to 
restrict access to any portion of the record under paragraph (b) of 
this section.


Sec.  719.21  Payment of final assessment.

    (a) Time for payment. Full payment of the civil penalty must be 
made within 30 days of the effective date of the order or within such 
longer period of time as may be specified in the order. Payment shall 
be made in the manner specified in the NOVA.
    (b) Enforcement of order. The government party may, through the 
Attorney General, file suit in an appropriate district court if 
necessary to enforce compliance with a final order issued under the 
CWCR. This suit will include a claim for interest at current prevailing 
rates from the date payment was due or ordered.
    (c) Offsets. The amount of any civil penalty imposed by a final 
order may be deducted from any sum(s) owed by the United States to a 
respondent.


Sec.  719.22  Reporting a violation.

    If a person learns that a violation of the Convention, the Act, or 
the CWCR has occurred or may occur, that person may notify: Office of 
Export Enforcement, Bureau of Industry and Security, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Room H-4520, 
Washington, DC 20230; Tel: (202) 482-1208; Facsimile: (202) 482-0964.

PART 720--DENIAL OF EXPORT PRIVILEGES

Sec.
720.1 Denial of export privileges for convictions under 18 U.S.C. 
229.
720.2 Initiation of administrative action denying export privileges.
720.3 Final decision on administrative action denying export 
privileges.
720.4 Effect of denial.

    Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 
CFR, 1999 Comp., p. 199.


Sec.  720.1  Denial of export privileges for convictions under 18 
U.S.C. 229.

    Any person in the United States or any U.S. national may be denied 
export privileges after notice and opportunity for hearing if that 
person has been convicted under Title 18, Section 229 of the United 
States Code of knowingly:
    (a) Developing, producing, otherwise acquiring, transferring 
directly or indirectly, receiving, stockpiling, retaining, owning, 
possessing, or using, or threatening to use, a chemical weapon; or
    (b) Assisting or inducing, in any way, any person to violate 
paragraph (a) of this section, or attempting or conspiring to violate 
paragraph (a) of this section.


Sec.  720.2  Initiation of administrative action denying export 
privileges.

    (a) Notice. BIS will notify any person convicted of Section 229, 
Title 18, United States Code, of BIS's intent to deny that person's 
export privileges. The notification letter shall reference the person's 
conviction, specify the number of years for which BIS intends to deny 
export privileges, set forth the statutory and regulatory authority for 
the action, state whether the denial order will be standard or non-
standard pursuant to Supplement No. 1 to part 764 of the Export 
Administration Regulations (15 CFR parts 730 through 799), and provide 
that the person may request a hearing before the Administrative Law 
Judge within 30 days from the date of the notification letter.
    (b) Waiver. The failure of the notified person to file a request 
for a hearing within the time provided constitutes a waiver of the 
person's right to contest the denial of export privileges that BIS 
intends to impose.
    (c) Order of Assistant Secretary. If no hearing is requested, the 
Assistant Secretary for Export Enforcement will order that export 
privileges be denied as indicated in the notification letter.


Sec.  720.3  Final decision on administrative action denying export 
privileges.

    (a) Hearing. Any hearing that is granted by the ALJ shall be 
conducted in accordance with the procedures set forth in Sec.  719.14 
of the CWCR.
    (b) Initial decision and order. After considering the entire record 
in the proceeding, the ALJ will issue an initial decision and order, 
based on a preponderance of the evidence. The ALJ may consider factors 
such as the seriousness of the criminal offense that is the basis for 
conviction, the nature and duration of the criminal sanctions imposed, 
and whether the person has undertaken any corrective measures. The ALJ 
may dismiss the proceeding if the evidence is insufficient to sustain a 
denial of export privileges, or may issue an order imposing a denial of 
export privileges for the length of time the ALJ deems appropriate. An 
order denying export privileges may be standard or non-standard, as 
provided in Supplement No. 1 to part 764 of the Export Administration 
Regulations (15 CFR parts 730 through 799). The initial decision and 
order will be served on

[[Page 70808]]

each party, and will be published in the Federal Register as the final 
decision of BIS 30 days after service, unless an appeal is filed in 
accordance with paragraph (c) of this section.
    (c) Grounds for appeal. (1) A party may, within 30 days of the 
ALJ's initial decision and order, petition the Under Secretary, Bureau 
of Industry and Security, for review of the initial decision and order. 
A petition for review must be filed with the Office of Under Secretary, 
Bureau of Industry and Security, Department of Commerce, 14th Street 
and Constitution Avenue, NW., Washington, DC 20230, and shall be served 
on the Office of Chief Counsel for Industry and Security or on the 
respondent. Petitions for review may be filed only on one or more of 
the following grounds:
    (i) That a necessary finding of fact is omitted, erroneous or 
unsupported by substantial evidence of record;
    (ii) That a necessary legal conclusion or finding is contrary to 
law;
    (iii) That prejudicial procedural error occurred; or
    (iv) That the decision or the extent of sanctions is arbitrary, 
capricious or an abuse of discretion.
    (2) The appeal must specify the grounds on which the appeal is 
based and the provisions of the order from which the appeal was taken.
    (d) Appeal procedure. The Under Secretary, Bureau of Industry and 
Security, normally will not hold hearings or entertain oral arguments 
on appeals. A full written statement in support of the appeal must be 
filed with the appeal and be simultaneously served on all parties, who 
shall have 30 days from service to file a reply. At his/her discretion, 
the Under Secretary may accept new submissions, but will not ordinarily 
accept those submissions filed more than 30 days after the filing of 
the reply to the appellant's first submission.
    (e) Decisions. The Under Secretary's decision will be in writing 
and will be accompanied by an order signed by the Under Secretary, 
Bureau of Industry and Security, giving effect to the decision. The 
order may either dispose of the case by affirming, modifying or 
reversing the order of the ALJ, or may refer the case back to the ALJ 
for further proceedings. Any order that imposes a denial of export 
privileges will be published in the Federal Register.


Sec.  720.4  Effect of denial.

    Any person denied export privileges pursuant to this part shall be 
considered a ``person denied export privileges'' for purposes of the 
Export Administration Regulations (15 CFR parts 730 through 799). The 
name and address of the denied person will be published on the Denied 
Persons List found in Supplement 2 to part 764 of the Export 
Administration Regulations (15 CFR parts 730 through 799).

PART 721--INSPECTION OF RECORDS AND RECORDKEEPING

Sec.
721.1 Inspection of records.
721.2 Recordkeeping.
721.3 Destruction or disposal of records.

    Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 
CFR, 1999 Comp., p. 199.


Sec.  721.1  Inspection of records.

    Upon request by BIS or any other agency of competent jurisdiction, 
you must permit access to and copying of any record relating to 
compliance with the requirements of the CWCR. This requires that you 
make available the equipment and, if necessary, knowledgeable personnel 
for locating, reading, and reproducing any record.


Sec.  721.2  Recordkeeping.

    (a) Requirements. Each person, facility, plant site or trading 
company required to submit a declaration, report, or advance 
notification under parts 712 through 715 of the CWCR must retain all 
supporting materials and documentation used by a unit, plant, facility, 
plant site or trading company to prepare such declaration, report, or 
advance notification to determine production processing, consumption, 
export or import of chemicals.
    (b) Five year retention period. All supporting materials and 
documentation required to be kept under paragraph (a) of this section 
must be retained for five years from the due date of the applicable 
declaration, report, or advance notification, or for five years from 
the date of submission of the applicable declaration, report or advance 
notification, whichever is later. Due dates for declarations, reports 
and advance notifications are provided in parts 712 through 715 of the 
CWCR.
    (c) Location of records. If a facility is subject to inspection 
under part 716 of the CWCR, records retained under this section must be 
maintained at the facility or must be accessible electronically at the 
facility for purposes of inspection of the facility by Inspection 
Teams. If a facility is not subject to inspection under part 716 of the 
CWCR, records retained under this section may be maintained either at 
the facility subject to a declaration, report, or advance notification 
requirement, or at a remote location, but all records must be 
accessible to any authorized agent, official or employee of the U.S. 
Government under Sec.  721.1.
    (d) Reproduction of original records. (1) You may maintain 
reproductions instead of the original records provided all of the 
requirements of paragraph (b) of this section are met.
    (2) If you must maintain records under this part, you may use any 
photostatic, miniature photographic, micrographic, automated archival 
storage, or other process that completely, accurately, legibly and 
durably reproduces the original records (whether on paper, microfilm, 
or through electronic digital storage techniques). The process must 
meet all of the following requirements, which are applicable to all 
systems:
    (i) The system must be capable of reproducing all records on paper.
    (ii) The system must record and be able to reproduce all marks, 
information, and other characteristics of the original record, 
including both obverse and reverse sides (unless blank) of paper 
documents in legible form.
    (iii) When displayed on a viewer, monitor, or reproduced on paper, 
the records must exhibit a high degree of legibility and readability. 
For purposes of this section, legible and legibility mean the quality 
of a letter or numeral that enable the observer to identify it 
positively and quickly to the exclusion of all other letters or 
numerals. Readable and readability mean the quality of a group of 
letters or numerals being recognized as complete words or numbers.
    (iv) The system must preserve the initial image (including both 
obverse and reverse sides, unless blank, of paper documents) and record 
all changes, who made them and when they were made. This information 
must be stored in such a manner that none of it may be altered once it 
is initially recorded.
    (v) You must establish written procedures to identify the 
individuals who are responsible for the operation, use and maintenance 
of the system.
    (vi) You must keep a record of where, when, by whom, and on what 
equipment the records and other information were entered into the 
system.
    (3) Requirements applicable to a system based on digital images. 
For systems based on the storage of digital images, the system must 
provide accessibility to any digital image in the system. The system 
must be able to locate and reproduce all records according to the same 
criteria that would have been used to organize the records had they 
been maintained in original form.

[[Page 70809]]

    (4) Requirements applicable to a system based on photographic 
processes. For systems based on photographic, photostatic, or miniature 
photographic processes, the records must be maintained according to an 
index of all records in the system following the same criteria that 
would have been used to organize the records had they been maintained 
in original form.


Sec.  721.3  Destruction or disposal of records.

    If BIS or other authorized U.S. government agency makes a formal or 
informal request for a certain record or records, such record or 
records may not be destroyed or disposed of without the written 
authorization of the requesting entity.

PART 722--INTERPRETATIONS [RESERVED]


    Note: This part is reserved for interpretations of parts 710 
through 721 and also for applicability of decisions by the 
Organization for the Prohibition of Chemical Weapons (OPCW).

PARTS 723-729--[RESERVED]

    Dated: November 26, 2004.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 04-26517 Filed 12-6-04; 8:45 am]
BILLING CODE 3510-33-P


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