[Federal Register Volume 64, Number 250 (Thursday, December 30, 1999)]
[Rules and Regulations]
[Pages 73744-73811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33149]
[[Page 73743]]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
Bureau of Export Administration
_______________________________________________________________________
15 CFR Part 710 et al.
Chemical Weapons Convention Regulations; Final Rule
_______________________________________________________________________
Department of State
_______________________________________________________________________
22 CFR Part 103
Chemical Weapons Convention and the Chemical Weapons Convention
Implementation Act of 1998; Taking of Samples; Recordkeeping and
Inspections; Final Rule
Federal Register / Vol. 64, No. 250 / Thursday, December 30, 1999 /
Rules and Regulations
[[Page 73744]]
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DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 710 through 722
[Docket No. 990611158-9311-02]
RIN 0694-AB06
Chemical Weapons Convention Regulations
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Interim 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). This interim rule
establishes the Chemical Weapons Convention Regulations (CWCR) to
implement provisions of the Convention 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.
DATES: Effective Date: December 30, 1999.
Comments: Written comments must be submitted no later than January
31, 2000.
ADDRESSES: Written comments should be sent to the Regulatory Policy
Division, Office of Exporter Services, Bureau of Export Administration,
Room 2705, 14th Street and Pennsylvania Avenue, N.W., Washington, D.C.
20230.
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,
notifications, and chemical determinations, contact the Information
Technology Team of the Treaty Compliance Division, Office of Chemical &
Biological Controls and Treaty Compliance, telephone: (703) 235-1335;
for program information on inspections and facility agreements, contact
the Inspection Management Team of the Treaty Compliance Division,
Office of Chemical & Biological Controls and Treaty Compliance,
telephone: (202) 482-6114; for legal questions, contact Cecil Hunt,
Acting Chief Counsel, Office of the Chief Counsel for Export
Administration, telephone (202) 482-5301.
SUPPLEMENTARY INFORMATION:
I. Background
Chemical Weapons Convention
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 Convention, which entered
into force on April 29, 1997, is an arms control treaty with
significant non-proliferation aspects. As such, the Convention bans the
development, production, stockpiling or use of chemical weapons and
prohibits States Parties from assisting or encouraging anyone to engage
in a prohibited activity. The Convention 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
Convention 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 Convention 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 Convention, including
the United States, have agreed to this verification scheme to provide
transparency and to ensure that no State Party to the Convention is
engaging in prohibited activities.
Specifically, the Convention requires States Parties to declare all
facilities that produce Schedule 1 or Schedule 3 chemicals in
quantities exceeding specified declaration thresholds, or that produce,
process or consume Schedule 2 chemicals in quantities exceeding
specified declaration thresholds. Schedule 1, 2 and 3 chemicals are set
forth in the Convention's Schedules of Chemicals and have been selected
for these Schedules based on degree of toxicity, history of use in
chemical warfare and commercial utility. The Convention also requires
States Parties to declare facilities that produce ``Unscheduled
Discrete Organic Chemicals'' (``UDOCs'') in quantities exceeding
specified thresholds. The requirement to declare UDOC facilities is
intended to identify facilities capable of producing chemical warfare
agents or precursors.
Certain ``declared'' facilities will also be subject to routine on-
site inspections by international inspectors from the Convention's
implementing body, the Organization for the Prohibition of Chemical
Weapons (OPCW). All declared Schedule 1 facilities are subject to
routine inspection. Declared Schedule 2 facilities are subject to
inspection if they produce, process or consume Schedule 2 chemicals in
quantities exceeding specified inspection thresholds. Declared Schedule
3 facilities are subject to inspection if they produce Schedule 3
chemicals in quantities exceeding a specified inspection threshold.
Facilities producing UDOCs in quantities exceeding a specified
threshold will be subject to inspection beginning April 29, 2000. With
a few exceptions, inspection thresholds are higher than declaration
thresholds.
The Convention also provides for challenge inspections of any
facility or location under the jurisdiction of any State Party.
Challenge inspections are intended to resolve questions of possible
non-compliance with the Convention.
Finally, the Convention requires States Parties to provide
information on exports and imports of Scheduled chemicals. States
Parties must also, among other things, prohibit exports of Schedule 1
chemicals to non-States Parties, require advance notification of
imports and exports of Schedule 1 chemicals, require End-Use
Certificates for exports of Schedule 2 and 3 chemicals to non-States
Parties, and ban the import from or export to non-States Parties of
Schedule 2 chemicals after April 28, 2000.
Application of CWC Requirements to U.S. Commercial Entities and
Individuals
The Chemical Weapons Convention Implementation Act of 1998
(``Act'') (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. 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
[[Page 73745]]
functions to implement the Convention, consistent with the Act. The
Department of Commerce will carry out CWC import restrictions under the
authority of the International Emergency Economic Powers Act, the
National Emergencies Act and E.O. 12938, as revised by E.O. 13128. The
Departments of State and Commerce are implementing 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 Convention and the Act.
Other Department of State and Commerce Regulations Implementing
Requirements of the Chemical Weapons Convention
In addition to this interim rule, the Department of State is
publishing a separate rule on the taking of samples during on-site
inspections in the United States and the enforcement provisions for
violations of the reporting and inspection requirements set forth in
the Act, and also maintains the International Traffic in Arms
Regulations (ITAR) (22 CFR 120-130).
Further, on May 18, 1999, the Bureau of Export Administration (BXA)
of the Department of Commerce published an interim rule (64 FR 27138)
amending the Export Administration Regulations (15 CFR 730-799) to
implement the following trade restriction provisions of the CWC:
--Annual reporting of all exports of Schedule 1 chemicals;
--Advance notification of all exports of Schedule 1 chemicals;
--Prohibition on exports of Schedule 1 chemicals subject to
Department of Commerce jurisdiction to non-States Parties;
--Prohibition on all reexports of Schedule 1 chemicals subject to
Department of Commerce jurisdiction;
--Prohibition on exports of Schedule 2 chemicals subject to
Department of Commerce jurisdiction to non-States Parties after
April 28, 2000;
--Requirement that exporters obtain an End-Use Certificate prior to
exporting any Schedule 2 or 3 chemicals to a non-State Party; and
--License requirements for the export of Schedule 1 chemicals under
Department of Commerce jurisdiction to all destinations, including
Canada.
Note that all existing export license requirements that apply to
CWC Scheduled chemicals and UDOCs subject to Department of Commerce
jurisdiction continue in effect. Further, the new CWC reporting
requirements, such as the End-Use Certificate and prior notification
requirements, are in addition to existing export license and supporting
documentation requirements for exports of chemicals subject to
Department of Commerce or Department of State export licensing
jurisdiction.
The Chemical Weapons Convention Regulations (CWCR)
This rule implements reporting and inspection requirements and
import restrictions. The CWCR:
--Apply to all U.S. persons and to facilities in the United States,
except for facilities of the Departments of Defense and Energy and
other U.S. Government agencies that notify the United States
National Authority (USNA) of their decision to be excluded from the
CWCR (such entities are referred to as ``persons and facilities
subject to the CWCR''). United States Government facilities are
those owned by or leased to the U.S. government, including
facilities that are contractor-operated.
--Set forth the declaration and other reporting requirements that
affect persons and facilities subject to the CWCR. The reporting
requirements of this rule are consistent with the procedural
provisions of section 401(a) of the Act. Section 401(a) of the Act
requires submission to the Director of the USNA of such reports as
the USNA may reasonably require to provide to the OPCW, pursuant to
subparagraph 1(a) of the Convention's Annex on Confidentiality.
Subparagraph 1(a) of the Confidentiality Annex provides that the
OPCW shall require only the minimum amount of information and data
necessary for the timely and efficient conduct by the OPCW of its
responsibilities under the Convention. As required by Section 401(a)
of the Act, the USNA, in coordination with the CWC interagency
group, has determined that the reports required by the CWCR are
those reasonably required to be provided to the OPCW. Declarations,
notifications and other reports required under the CWCR will be due
to the Department of Commerce at specified dates or within specified
time frames for verification, aggregation and submission to the
Director of the USNA. The USNA will transmit United States
declarations, reports and notifications to the OPCW located in the
Hague, the Netherlands.
--Require access for on-site inspections.
--Prohibit imports of Schedule 2 chemicals from non-States Parties
after April 28, 2000.
--Contain recordkeeping requirements and administrative procedures
and penalties related to violations of reporting and inspection
requirements and importation restrictions.
--Implement section 211 of the Act, which authorizes revocation of
the export privileges of any person determined to have violated the
chemical weapons provisions of 18 U.S.C. Sec. 229.
Reporting Requirements
Declaration Requirements. Facilities required to submit
``declarations'' are those that produce, process or consume certain
chemicals in quantities that exceed specified thresholds. Four types of
declarations are due to BXA when required by parts 712 through 715 of
the CWCR: initial declarations, annual declarations on past activities,
annual declarations on anticipated activities, and a one-time
declaration of facilities that produced Schedule 2 or 3 chemicals for
chemical weapons purposes at any time since January 1, 1946. The United
States will transmit data on declared facilities to the OPCW. Such data
will also be compiled to establish the U.S. national aggregate on
production, processing and consumption of relevant chemicals. Export
and import data contained in declarations will also be compiled and
added to export and import information obtained from other reports to
establish the U.S. national aggregate declaration on imports and
exports of certain chemicals.
Initial declarations. Initial declarations are one-time
declarations that are due to BXA BY March 30, 2000, except for the
establishment of new Schedule 1 facilities, which requires submission
of a technical description of the facility prior to producing above 100
grams aggregate. Any Schedule 2 or 3, or UDOC plant site that was not
required to submit an initial declaration but that exceeded the
applicable declaration or reporting thresholds for covered activities
in a subsequent year, must submit only an annual declaration on past
activities or an annual report on exports and imports. Facilities that
produced more than 100 grams aggregate of Schedule 1 chemicals in
calendar year 1997, 1998, or 1999 must submit an initial declaration (a
technical description of the facilities). Note that the Schedule 1
Certification Form asks you to identify each year in which you produced
in excess of 100 grams aggregate. Facilities that produced, processed
or consumed more than specified quantities of a Schedule 2 chemical in
any of the calendar years 1994, 1995, or 1996 must provide information
on activities involving that Schedule 2 chemical that occurred in each
of calendar years 1994, 1995, and 1996. Facilities that produced more
than 30 metric tons of a Schedule 3 chemical in calendar year 1996 must
provide information on activities involving this Schedule 3 chemical
that occurred in 1996. Facilities that produced more than specified
quantities of UDOCs in calendar year 1996 must provide ranges of
production for 1996.
Annual declarations on past activities. Facilities that produced
more than 100 grams aggregate of Schedule 1 chemicals, more than 30
metric tons of a Schedule 3 chemical, or more than
[[Page 73746]]
specified quantities of UDOCs in the previous calendar year, must
submit an annual declaration on past activities. Facilities that
produced, processed or consumed more than specified quantities of a
Schedule 2 chemical in any of the three previous calendar years must
submit an annual declaration on past activities for activities during
the previous year. Annual declarations on past activities for calendar
years 1997, 1998, and 1999 will be due to BXA March 30, 2000.
Annual declarations on anticipated activities and declarations on
additionally planned activities. Facilities that anticipate engaging in
production of Schedule 1 or Schedule 3 chemicals or production,
processing or consumption of Schedule 2 chemicals above specified
thresholds during the next calendar year must submit an annual
declaration on anticipated activities. Facilities that have certain
types of changes or additions to their annual declaration on
anticipated activities must submit a declaration on additionally
planned activities.
One time declaration of past production for chemical weapons
purposes. Facilities that have produced Schedule 2 or Schedule 3
chemicals anytime since January 1, 1946, for chemical weapons purposes
must submit a declaration by March 30, 2000.
Amended declarations and reports. The CWCR also provide for
submission of ``amended declarations'' and ``amended reports'' to
change, replace, or add information to previously submitted
declarations or reports.
Notification Requirements. Facilities that intend to export or
import Schedule 1 chemicals to or from States Parties must submit prior
notifications of these activities. These notifications will be
forwarded to the OPCW.
Other Reporting Requirements. U.S. persons and facilities subject
to the CWCR that have exported or imported a scheduled chemical, but
have not produced, processed, or consumed declarable quantities of that
chemical, may nevertheless have an export or import reporting
requirement. The USNA will NOT forward facility-specific information
contained in these reports to the OPCW. BXA will include the export and
import data in the compilation of the U.S. national aggregate
declaration on exports and imports of relevant chemicals.
Initial reports on exports and imports. Initial reports for exports
and imports are required for exports and imports of Schedule 2 and
Schedule 3 chemicals above certain threshold quantities during calendar
year 1996.
Annual reports on exports and imports. Annual reports for exports
and imports are required for all exports and imports of Schedule 1
chemicals during the previous calendar year, and for exports and
imports of Schedule 2 and 3 chemicals above certain threshold
quantities. Annual reports on exports and imports for calendar years
1997, 1998, and 1999 will be due to BXA March 30, 2000.
Timing of submission of initial and annual declarations and
reports. The first declaration and report package due to the Department
of Commerce will include the initial declaration plus the annual
declarations and reports for activities in calendar years 1997, 1998,
and 1999. The first Schedule 1 annual declaration on anticipated
activities for calendar year 2001 will be due to BXA on August 3, 2000.
The first Schedule 2 and Schedule 3 annual declarations on anticipated
activities for calendar year 2001 will be due on September 3, 2000.
Certain facilities may also need to submit the one-time declaration on
past production of Schedule 2 or Schedule 3 chemicals for chemical
weapons purposes. CWC Declaration and Report Handbooks containing
necessary multipurpose forms for declarations and reports will be
available by mail and through the Internet. If there are discrepancies
between the CWCR and the Handbooks (including instructions and form
requirements), the CWCR prevail.
On-Site Inspection Requirements
This rule also sets forth the requirements and procedures for on-
site inspections of U.S. facilities subject to the CWCR, consistent
with sections 301 to 309 of the Act. On-site inspections will be
conducted by inspectors from the OPCW's Technical Secretariat. The
Department of Commerce will lead the Host Team accompanying and
escorting the inspectors during inspections.
Types of inspections. There are two major kinds of inspections: (1)
Initial and subsequent (``routine,'' under the Act) inspections of
declared facilities whose level of production, processing or
consumption of specified chemicals makes them subject to such
verification as a routine matter; and (2) ``challenge'' inspections of
any facility or location in the United States based on a request made
by another State Party to clarify and resolve any questions concerning
possible non-compliance with the Convention.
Notification and consent procedures. Pursuant to section 304 of the
Act, before an inspection may take place, the USNA must authorize each
inspection of a facility or location in the United States and provide
actual written notification of each inspection to the owner and
operator or other person in charge of the facility. For routine
inspections of declared facilities, the USNA will provide such written
notification within 6 hours of receiving notification from the OPCW
Technical Secretariat or as soon as possible thereafter. The Department
of Commerce will provide Host Team notice to facilities to be
inspected. The Department of Commerce intends to seek an administrative
warrant, as provided for by section 305 of the Act and in E.O. 13128,
if the owner or person in charge of the facility does not consent to
the inspection.
II. Public Comments on Proposed Rule
On July 21, 1999, the Bureau of Export Administration published in
the Federal Register (64 FR 39104) a proposed rule, with request for
comment, to establish the Chemical Weapons Convention Regulations
(CWCR) to implement provisions of the Convention and the Act affecting
U.S. industry and other U.S. persons. BXA received comments from 18
respondents. Following is a summary of those comments, along with BXA's
responses.
Scope of the CWCR
One respondent questioned whether the definition of ``Chemical
Weapons Convention'' includes any annexes that have not yet entered
into force under the Convention, and stated that annexes approved after
January 13, 1993, should not automatically be implemented by the CWCR.
This rule implements those relevant articles and annexes of the
Convention that entered into force on April 29, 1997, as reflected in
parts 710 through 722 of the CWCR.
To clarify what U.S. government facilities are excluded from the
CWCR, one respondent sought guidance on whether the term ``U.S.
facilities that are contractor-operated'' includes facilities owned by
the U.S. Government, but leased to private companies. The CWCR
reporting, declaration, and inspection requirements do apply to
facilities owned by a U.S. Government agency and leased to a private
company or other entity, such that the private company or other entity
may independently decide for what purposes to use the facilities. BXA
has revised Sec. 710.2 of this rule to clarify the scope of the CWCR.
Chemicals Subject to the CWCR
One respondent requested that all Schedule 1, Schedule 2 and
Schedule 3 chemicals subject to the CWCR be
[[Page 73747]]
identified by the Chemical Abstract Service registry number (CAS
number) to clarify declaration and reporting requirements. Supplement
No. 1 to Part 712 (Schedule 1), Supplement No. 1 to Part 713 (Schedule
2), and Supplement No. 1 to Part 714 (Schedule 3) of the CWCR list
certain chemicals by name or family that are subject to the CWCR. These
Supplements also identify certain of these chemicals by CAS number.
These Supplements mirror the Schedules of Chemicals found in the
Convention. BXA agrees that it is desirable to provide CAS registry
numbers for all chemicals subject to the CWCR. However, because there
are, by conservative estimates, 25,000 or more chemicals subject to the
CWCR, listing each chemical by name and CAS number is not practical. In
addition, new chemicals are being developed and/or assigned CAS numbers
daily. Therefore, any list published by BXA would be neither exhaustive
nor current. BXA believes that Supplement No. 1 to Parts 712, 713 and
714 of the CWCR provide sufficient information for a qualified chemist
to determine whether a chemical is subject to the CWCR. In addition,
BXA will, upon request, provide a binding determination of whether or
not a specific chemical is subject to the CWCR. (See Sec. 711.3 of the
CWCR.)
Confidential Business Information
Four respondents submitted comments on confidential business
information (CBI) issues, which fall into four broad categories: the
amount of information BXA should collect; location and consolidation of
CBI provisions in the CWCR; protection of information made available to
the OPCW; and protection of CBI within the United States in both
Freedom of Information Act (FOIA) and non-FOIA contexts.
Amount of information BXA should collect: Two respondents requested
BXA to collect only the minimum amount of information necessary to
comply with the Convention and the Act. Consistent with section 401 of
the Act, the U.S. Government is requiring only the minimal information
necessary to satisfy the requirements of the Convention and Act. This
is reflected in the provisions of the CWCR.
One respondent suggested that BXA not make lists of companies
subject to CWC verification, for fear that such lists could be
exploited by persons seeking to stigmatize the lawful production of
chemicals. The respondent suggested if BXA did establish such lists,
that BXA implement procedures for removing facilities from those lists
when such facilities are no longer subject to declaration requirements.
From time to time, BXA will need to create such lists, for example, to
comply with certain U.S. national declaration requirements. However,
BXA will create the minimum number of lists necessary, and will update
the lists as appropriate, to ensure effective U.S. implementation of
the Convention.
One respondent was concerned that language in the proposed rule on
the conduct of inspections would not allow the site representative to
shroud or remove from the site items that the site representative
determined were irrelevant to the inspection, unless ``agreed by the
U.S. Government Team.'' The respondent suggested deletion of the cited
phrase. BXA has clarified this provision by changing it to read ``as
determined by the Host Team,'' since the right to take protective
measures, such as shrouding equipment not related to the purpose of an
inspection, is a right granted to the State Party under the Convention.
Consolidation and location of CBI provisions in the CWCR: One
respondent suggested consolidating the CBI provisions in Part 716
(routine inspections) and Part 717 (challenge inspections). Three
respondents requested BXA to consolidate all provisions in the CWCR
relating to CBI and place these consolidated provisions in part 710 to
highlight their importance. BXA agrees that to avoid any ambiguity that
may arise because of slight differences in wording, the CBI provisions
should be consolidated. To highlight the importance of CBI, BXA is
placing these provisions in a dedicated CBI part. Because part 710
serves as an introduction to the CWCR and does not have regulatory
force, BXA is placing the CBI provisions in Part 718, entitled
``Confidential Business Information.'' BXA is creating new part 722,
entitled ``Interpretations,'' to replace Part 718, originally reserved
for interpretations.
Status of information made available to the OPCW: Three respondents
suggested that all CBI made available to the OPCW during inspections be
designated ``highly protected.'' 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
their declarations as ``restricted,'' ``protected,'' or ``highly
protected.'' The U.S. Government is directing the OPCW to accord
``protected'' status to all information contained in declarations,
reports and advance notifications of exports and imports of Schedule 1
chemicals. The ``protected'' level of confidentiality is consistent
with the level of protection designated by many other States Parties
for their industrial declarations.
It is also the policy of the U.S. Government to designate CBI that
it discloses to OPCW Inspection Teams as ``protected'' or ``highly
protected,'' depending on the sensitivity of the information. However,
the U.S. Government will not request ``protected'' status for
information made available to OPCW Inspection Teams that is publicly
available, such as company sales or marketing literature or information
from the company's Internet web site. The ``protected'' or ``highly
protected'' status will apply to CBI disclosed to Inspection Teams,
irrespective of the form or medium in which it is made available to the
OPCW, whether in oral, written or visual form.
Definition and identification of CBI: Three respondents requested
clarification about the ``scope of coverage'' of CBI in the CWCR.
Section 103(g) of the Act defines U.S. confidential business
information as any trade secrets or commercial or financial information
that is privileged and confidential. BXA has determined that CBI
contained in information submitted to, or obtained by, the U.S.
Government for CWC purposes will fall into one of two categories:
(1) information that falls under the types of information listed
in Section 103(g)(1) of the Act, called ``section 103(g)(1)
information''; and
(2) information that does not meet (1) but that meets all the
criteria of section 103(g)(2) of the Act because it is a ``trade
secret'' as described in 5 U.S.C. 552(b)(4) and is obtained from a
U.S. person or through the U.S. Government or the conduct of an
inspection in the United States, called ``section 103(g)(2)
information.''
Information that satisfies the criteria of both sections 103(g)(1)
and 103(g)(2) will be treated as section 103(g)(1) information.
BXA has determined that certain fields in the declaration and
report forms meet the definition of section 103(g)(1) and has
identified these fields in Supplement 1 to Part 718 of the CWCR. BXA
will continue to determine whether additional types of information meet
the requirements of section 103(g)(1) and will add to Part 718 any such
types of information that can apply generally to entities subject to
the CWCR. Section 103(g)(2) information
[[Page 73748]]
will likely involve specific circumstances, require case-by-case
determination, and not lend itself to general use. Therefore, BXA
cannot at this time provide additional clarification about the scope of
coverage of section 103(g)(2).
Except for the section 103(g)(1) information BXA has identified in
the declaration and report forms, the U.S. Government will not be able
to distinguish CBI from non-CBI, as defined in the Act, and will
require the assistance of industry in identifying such CBI, most
notably in connection with inspections.
Two respondents objected to the implicit limitation of the scope of
CBI in Supplement No. 1 to Part 711 of the proposed rule. BXA intends
this chart to serve as general guidance by indicating the fields of
information on declaration and report forms that BXA has identified as
section 103(g)(1) information. BXA is revising the supplement (to new
part 718) to add a note indicating that information in other fields on
the forms may also be considered CBI when such information has been
specifically identified by submitters and a rationale has been provided
for the CBI status of such information.
In a related matter, two respondents urged BXA to indicate that CBI
need not be ``marked,'' but one respondent recommended that items not
specifically identified in 103(g)(1) be marked. This rule requires
companies to identify information they consider to be CBI that BXA has
not specifically identified in Supplement No. 1 to Part 718 as section
103(g)(1) information. In addition, entities hosting on-site
inspections will need to specifically identify to the Host Team any CBI
contained in information made available to the U.S. Government to
ensure proper handling and treatment of such CBI.
One respondent requested BXA to provide a box on the declaration/
reporting forms so a company could check the box to indicate the form
contained CBI. Checking a box would not serve to specifically identify
the information on the completed form that meets the definition of CBI.
BXA must reject this suggestion and require the system of
identification set out in this preamble and in this rule.
One respondent asked BXA to state that all information provided to
the U.S. Government for whatever purpose is confidential when it meets
the CBI definition of the Act. The Act defines CBI, not for all
purposes, but for specific purposes. BXA is unable to comply with this
request. Certain data defined as CBI in a CWC compliance context might
not qualify as a ``trade secret'' or otherwise be deemed confidential
when obtained by the U.S. Government in non-CWC compliance contexts
(e.g., publicly available research, patent, or sales data).
One respondent urged BXA to acknowledge that CBI would arise in a
variety of contexts. BXA agrees that CBI will exist in tangible and
intangible forms. BXA believes that Part 718 adequately covers CBI.
Protection of CBI by the U.S. Government in non-FOIA contexts: All
four respondents expressed concern about U.S. Government protection of
CBI in situations other than requests for information under the Freedom
of Information Act (FOIA), such as Department of State and Commerce
enforcement proceedings or litigation in which the U.S. Government is
not a party. Three respondents requested BXA to draft CBI provisions in
this regulation as a broad, blanket non-disclosure requirement, except
where expressly permitted by section 404 of the Act (i.e., to the OPCW,
U.S. law enforcement agencies, and appropriate congressional
committees).
Section 404 of the Act provides exemptions from the disclosure
requirements of FOIA. BXA cannot guarantee non-disclosure of
information in all circumstances, such as in instances of judge-issued
subpoenas. Information and documents related to CWC administrative
enforcement cases will be handled and protected according to procedures
set forth in part 719 of the CWCR.
In a related issue, three respondents requested BXA to specify that
the Act is a ``confidentiality statute'' for purposes of regulations
administered by the Office of the Secretary of Commerce in 15 CFR Part
15 (Legal Proceedings). Part 15 sets forth procedures governing the
production of Department of Commerce records or testimony by Department
of Commerce employees in legal proceedings in which the United States
is not a party. Federal agencies may establish such procedures under
section 301 of Title 5, United States Code, to provide for the custody,
use and preservation of its records. BXA has determined that it is
unnecessary to specify whether the provisions of the Act fall under the
meaning of ``confidentiality statute,'' as used in 15 CFR section 15.17
because this, in and of itself, does not provide any protection other
than that already available under the Act and other statutes. The
Departmental regulations do not enhance existing statutory protections,
but merely provide a mechanism whereby the Department can determine
whether any evidentiary privileges or statutory requirements of privacy
or confidentiality apply, or if there is any other legal basis for
withholding information.
One respondent stated that the U.S. Government should request the
United States magistrate judge to seal all records of warrants
proceedings in order to guard against public disclosure of any CBI
contained in the warrant or in material submitted in support of the
issuance of the warrant. BXA intends to request that warrant
proceedings be sealed if the warrant or related material includes CBI.
Protection of CBI requested under the Freedom of Information Act:
Section 404 of the Act does not provide a statutory exemption from FOIA
disclosure requirements for all information that is reported to, or
otherwise obtained by, the U.S. Government, but only for ``certain
Convention information'' (i.e., that which is defined as ``confidential
business information'' in section 103(g) of the Act). BXA will withhold
from disclosure pursuant to a FOIA request only CBI, as defined in
section 103(g), that has either been identified by BXA or by the person
from whom the information is obtained.
National Interest Determination: Two respondents requested BXA to
narrowly define the term ``national interest,'' or to provide factors
that the U.S. Government would consider in determining disclosure under
the national interest disclosure provision. BXA cannot provide a
definitive list of factors, since these would depend on specific
circumstances, could change over time, and would need the concurrence
of other agencies.
Two respondents suggested specific language for the consolidated
CBI provisions, building upon language in the proposed rule. BXA is
adopting some, but not all, the provisions in the suggested text. Under
the suggested text, the notification and hearing procedures that apply
to CBI disclosed in the ``national interest'' would also apply to
disclosures to appropriate committees of Congress and law enforcement
agencies. BXA rejects this suggestion. The Act does not require such
notice and hearing procedures in the latter cases and provides no
discretion regarding disclosure to such entities. Application of these
procedures would only serve to delay authorized disclosures, without
affecting the outcome. Moreover, delay in disclosure to other law
enforcement agencies could hamper the actions of such law enforcement
agencies, thereby thwarting the intention of the statute. BXA notes,
however, that section 404 of the Act contains provisions limiting
[[Page 73749]]
further disclosure by such Congressional committees and law enforcement
agencies of CBI released to them.
Recordkeeping
One respondent requested clarification on whether the declaration
responsibilities for the production of Schedule 2 and 3 chemicals for
chemical weapons purposes at any time since January 1, 1946 reside with
the company that originally may have produced the chemicals. Four
respondents addressed the proposed rule's requirement that the facility
prepare declarations for activities dating back to 1994. The
respondents state that the records and information necessary to prepare
declarations may not be available because: (1) necessary information
was not collected at the time of the activity, since no regulatory
requirement to do so was in effect; (2) if collected at the time of the
activity, the information has been discarded following normal business
practices; or (3) due to changes in ownership or control of a facility,
the current custodian of the information may no longer be affiliated
with a facility subject to the CWCR. One respondent referenced a
Supreme Court ruling which states that legislative rules, such as the
CWCR, may not have a retroactive effect unless explicitly provided for
by statute. The respondents request that BXA acknowledge that
information necessary to prepare declarations or reports for previous
years may not be available and that failure to prepare and submit
declarations or reports for this reason should not constitute a
violation under the CWCR.
BXA agrees that if records necessary to prepare a declaration and
report are not available because one or more of the three factors cited
in the preceding paragraph took place prior to the effective date of
this rule, failure to prepare and submit the declaration or report
should not constitute a violation under the CWCR. However, BXA has the
authority under the Act to require the preparation and submission of a
declaration or report for activities that occurred before the
regulatory requirement becomes effective and, to the extent that
information necessary to prepare the declarations and reports is
available, the U.S. Government has the authority to impose an
administrative sanction for willful failure or refusal to do so. Such a
requirement is not ``retroactive'' under the Administrative Procedure
Act, because it does not alter the past legal status of a past action
(i.e., disposal of records or failure to create records). In addition,
the Technical Secretariat of the OPCW recently has confirmed that
declarations and reports for activities occurring as early as 1994 may
be useful to it in carrying out its verification and monitoring
responsibilities. This rule includes new language in Sec. 711.4 which
addresses these issues.
One respondent requested that the 5-year record retention period be
limited to 3 years. This rule maintains the 5-year requirement to
correspond with the statute of limitations applicable to enforcement
actions (28 U.S.C. 2462). Four respondents stated that part 721 was too
vague and broad, and might be interpreted as requiring documents to be
retained that are not necessary to enforcement or other administration
of the CWCR. BXA has revised part 721 to clarify the types of
documentation required to be retained, the location of documents, and
the use of copies of documents to meet the record retention
requirements. Finally, one respondent questioned the meaning of
``formal or informal'' requests for documents that would preclude their
disposal or destruction. By ``formal,'' the CWCR means a subpoena. By
``informal,'' the CWCR means a verbal or written request by the
investigating agency for a particular document or documents.
Declarations and Reports
One respondent requested an explanation of how the term ``report''
is used in the CWCR and a clearer description of the types of
information that will be submitted to the OPCW. The term ``report'' is
used to describe several different types of activities under the CWCR
and the Act. The Act refers to reports to describe all types of
requirements under the Convention, including declarations on
production, processing and consumption, as well as reports on exports
and imports. For reports required by the Act, this rule uses the
following terms: (1) declarations; (2) reports on export and import
activities; (3) notifications; (4) end-use certificates; (5) reports on
inspection-related costs; and (6) post-inspection reports. BXA submits
individual declarations for each declared facility to the USNA for
transmission to the OPCW. These declarations contain facility-specific
information, including facility name and address, and information on
production, processing, consumption, and, in certain instances, export
and import of specific chemicals. In addition, BXA submits to the USNA
a national aggregate declaration on exports and imports, which combines
information from facility declarations as well as information from
reports submitted by other facilities and trading companies. The
national aggregate declaration does not include facility-specific
information, but only aggregate information by chemical or by country.
This rule provides that Schedule 1 and Schedule 3 facilities may
include their export and import information with their declarations on
past activities, or may submit the information separately as reports.
Whether submitted as part of a declaration or as a report, Schedule 1
and Schedule 3 export and import information is included only in the
national aggregate declaration; BXA does not submit facility-specific
Schedule 1 or Schedule 3 export and import information from
declarations or reports to the USNA for transmittal to the OPCW. (It
should be noted, however, that notifications of Schedule 1 exports and
imports are submitted to the USNA for transmittal to the OPCW.) For
certain declared Schedule 2 plant sites, BXA does submit facility-
specific production, processing, consumption, export and import
information to the USNA for transmittal to the OPCW as part of the
annual declaration on past activities. The Schedule 2 national
aggregate declaration only includes information on exports and imports
by chemical and by country. These different requirements are due to
differences among the declaration provisions of the Verification Annex
of the Convention for Schedule 1, 2 and 3 chemicals.
Initial Declarations
One respondent requested clarification of the initial declaration
requirement for Schedule 1 facilities. For Schedule 1 facilities,
unlike Schedule 2 and 3 facilities, the initial declaration does not
include any production or other Schedule 1 chemical activity
information; it only provides a technical description of the facility.
Production and other activity information is provided in the annual
declarations. For the annual declarations on past activities for
calendar years 1997, 1998, and 1999, facilities are required to submit
declarations only for those years during which they produced more than
100 grams aggregate of Schedule 1 chemicals.
One respondent requested clarification that for the Schedule 2
initial declaration, plant sites are not required to submit a
declaration for all three years (1994, 1995, and 1996), but are only
required to submit a declaration for the year(s) in which one or more
plants on the plant site produced, processed, or consumed a
[[Page 73750]]
Schedule 2 chemical above the applicable threshold. BXA recognizes that
the Schedule 2 initial declaration requirement, as well as the annual
declaration on past activities, is burdensome on facilities and may
appear unnecessary. However, Part VII of the Convention's Verification
Annex requires initial declarations to be submitted for all three years
(1994, 1995, and 1996) by plant sites comprised of one or more plants
that produced, processed or consumed a Schedule 2 chemical above the
applicable threshold in any one of those three previous calendar years.
This initial declaration requirement will establish a profile on the
plant site that will be used by the OPCW to monitor activities. The
profile may be updated based on the plant site's subsequent submission
of annual declarations on past activities. In order to maintain an
accurate profile, a plant site must comply with the initial declaration
requirement as described in the note to Sec. 713.3(a)(1)(i). A plant
site must declare each chemical that it produced processed or consumed
over the applicable threshold quantity in any one of the calendar years
1994, 1995, or 1996, and must submit three Forms 2-3--one for each of
the calendar years 1994, 1995, and 1996--for each chemical. For each
year or years that a plant site did not produce, process or consume the
declared chemical over threshold, it must declare ``0'' quantity only
for those activities that triggered the declaration requirement. It
should leave blank on Form 2-3 those questions relating to activities
that did not exceed the applicable threshold quantity in any one of the
three previous years. Plant sites that submit an initial declaration
are subject to on-site verification if their activities exceed the
applicable inspection threshold quantities set forth in part 716.
Declaration and Approval Requirements for Schedule 1 Facilities
One respondent requested clarification of whether a Schedule 1
facility would be subject to declaration requirements if all of its
Schedule 1 production occurred prior to April 29, 1997, when the
Convention entered into force. If a facility produced more than 100
grams aggregate of Schedule 1 chemicals in calendar year 1997, it must
submit an initial declaration and an annual declaration on past
activities for 1997.
A respondent requested that BXA clarify that Schedule 1 facilities
must declare consumption and storage of Schedule 1 chemicals only if
they produced more than 100 grams aggregate of Schedule 1 chemicals.
This is correct, but BXA does not agree that the rule requires
clarification.
One respondent also requested BXA to state the grounds for
disapproval of a Schedule 1 facility. The Convention requires States
Parties to approve all Schedule 1 facilities. However, the Act does not
authorize the U.S. Government to require a facility to stop or limit
its production of Schedule 1 chemicals. Therefore, BXA cannot
disapprove a Schedule 1 facility.
Mixtures and other exemptions to declaration and reporting requirements
Four respondents requested that BXA include a low-concentration
threshold for mixtures containing Schedule 1 chemicals to reduce the
burden on all companies of identifying, quantifying and accounting for
trace amounts of Schedule 1 chemicals contained in complex product
mixtures and waste streams at very low concentrations. One respondent
expressed concerns about BXA not approving facilities that produce
Schedule 1 chemicals as unwanted byproducts in the manufacture of
another chemical, since the aggregate of such production could exceed
the Convention's 10 kg limit for Schedule 1 chemicals. BXA believes
that the production, export, and import of trace amounts of Schedule 1
chemicals as unavoidable by-products or impurities do not pose a threat
to the object and purpose of the Convention, would capture industries
totally unrelated to those involved in the intentional production of
Schedule 1 chemicals, and would result in the inspection of facilities
under a verification regime established for facilities that
intentionally produce Schedule 1 chemicals. Therefore, this rule
includes in part 712 a 0.5 percent ``round to zero'' rule for Schedule
1 chemicals produced as unavoidable by-products or impurities.
One respondent requested that BXA establish a uniform 30 percent
low concentration exemption for Schedule 2 activities because the
current two-tiered reporting system included in the proposed rule (10
percent for production, consumption, imports, exports; 30 percent for
processing) would create legal and compliance problems for industry.
Moreover, it puts U.S. companies at a competitive disadvantage with
other major chemical producers and traders which have adopted a uniform
30 percent mixtures rule. BXA agrees that the two-tiered mixtures rule
is unnecessarily complicated, creates an uneven playing field with our
major industrial competitors, and will capture downstream consumers
that pose no risk to the object and purpose of the Convention. BXA also
believes that adopting a 30 percent low concentration exemption for
declarations and reports on Schedule 2 transfers is consistent with the
U.S. Government's non-proliferation objectives. Therefore, this rule
establishes in part 713 of the CWCR a 30 percent mixtures exemption for
production, processing, consumption, export and import of Schedule 2
chemicals. However, should conditions change, BXA will review the 30
percent low concentration exemption for Schedule 2 exports and imports
to ensure that our non-proliferation interests are not being
undermined.
One respondent requested BXA to clarify whether the mixtures rules
contained in Secs. 713.3(a)(2) (i) and (ii) are applicable to
Sec. 713.1 of the CWCR. The respondent was concerned that a complete
prohibition on the importation of all Schedule 2 chemicals could create
a situation where importers unknowingly violate the CWCR and become
subject to penalties for importing of Schedule 2 chemicals. BXA agrees
with the respondent. This rule adopts a 10 percent low concentration
exemption for imports of Schedule 2 chemicals from non-States Parties
after April 28, 2000. This exemption mirrors the mixtures rule
contained in the Export Administration Regulations for exports of
Schedule 2 chemicals to non-States Parties after April 28, 2000.
Four respondents requested an exemption for UDOC mixtures similar
to that already existing for Schedule 3 chemicals. They noted the
inconsistency between having an 80% threshold for Schedule 3 chemicals
while maintaining a 0% threshold for UDOCs, which pose a much less
threat to the object and purpose of the Convention. The respondents
also wanted to use the mixtures rule to clarify what the term
``discrete'' means. Furthermore, the respondents stated that
identifying, quantifying, and accounting for low concentrations of
UDOCs contained in complex mixtures is excessively burdensome and
provides no benefits to the object and purpose of the Convention. BXA
does not accept these comments and this rule does not contain a UDOC
mixtures exemption. The Convention does not specifically permit a
mixtures rule similar to that for Schedule 2 or 3. Further, Sec. 710.1
of the CWCR contains the Convention's definition of a discrete organic
chemical. This rule does not provide specific exemptions for individual
UDOCs. If companies have specific questions about whether their
products
[[Page 73751]]
are covered by the CWCR, they should request a chemical determination
from BXA. However, BXA believes that a specific exemption for UDOCs
produced by synthesis as normal ingredients, by-products, or impurities
in the manufacture of foods designed for consumption by humans and/or
animals is warranted since such plant sites pose no threat to the
object and purpose of the Convention. This rule does not include an
exemption for facilities that produce UDOCs solely as consumer goods
packaged for retail sale and requests that the public comment on the
impact of the CWCR on such producers.
One respondent requested four additional exemptions to the
declaration requirements for Schedule 3 chemicals: materials that are
not produced by synthesis; materials that are not isolated for use or
sale as a specific end product; process intermediates that are
transformed at the same plant site; and components of waste streams (or
substances formed in waste streams). At this time, BXA believes it is
unnecessary to add additional exemptions for Schedule 3 chemicals
beyond the 80% threshold that currently exists. If the OPCW acts to set
a universal Schedule 3 threshold which is lower than 80% and if
Congress amends the Act, BXA will consider additional exemptions. For
purposes of the CWCR, the term ``production'' should be understood to
include a scheduled chemical (i.e., a Schedule 1, Schedule 2, or
Schedule 3 chemical) produced by a biochemical or biologically mediated
reaction. Further, Schedule 3 chemicals not isolated above 80% purity,
whether used or sold as specific end products or as intermediates or
disposed of as waste, are currently excluded by the Act and this rule.
Finally, excluding Schedule 3 process intermediates, with
concentrations greater than the applicable threshold (80% in the United
States), would be inconsistent with the object and purpose of the
Convention.
Another respondent suggested that in order to avoid double counting
of UDOCs, a UDOC produced in salt form and pure form should only be
counted once for declaration purposes, and that the substance to be
declared would be the final ``species'' isolated for use or sale
outside the facility. The CWCR require declaration of only the final
UDOC produced in whatever form for use or sale. If a facility is
producing UDOC(s) for use within the facility, that UDOC must be
declared if produced in quantities greater than the threshold specified
in part 715 of the CWCR.
Amended Declarations and Reports
One respondent requested clarification on whether or not the
submission of amended declarations and reports will, in itself, trigger
an enforcement action. An amended declaration or report will be used by
BXA to replace the information on a declaration, or the aggregate
national declaration that was previously submitted to the OPCW.
Submission of an amended declaration or report is considered a change,
a replacement, or an addition to previously submitted information.
Amended declarations and reports will not automatically trigger an
enforcement action.
One respondent requested clarification on the types of changes to a
previously submitted declaration on the production of UDOCs that would
require submission of an amended declaration or report. This rule
clarifies in Sec. 715.2 of the CWCR that for declarations involving
UDOCs, only changes of production quantity into a higher range, the
addition of a new PSF-chemical (phosphorus, sulfur, and fluorine)
produced above 30 metric tons at a PSF plant not previously declared,
changes to previously reported activities and end-use purposes, or the
addition of new activities or end-use purposes require an amended
declaration or report under part 715 of the CWCR.
One respondent requested clarification on the types of changes to
declarations or reports that will not require submission of an amended
declaration or report because they are considered minor or
insignificant information. This rule makes such clarification in
Secs. 712.6, 713.7, and 714.6 of the CWCR. Changes to previously
submitted information on chemicals, activities and end-use purposes, or
the addition of new chemicals, activities and end-use purposes require
submission of an amended declaration or report. For Schedule 1, 2, or 3
facilities subject to inspection, changes that may affect verification
activities, such as changes of the owner or operator, company name,
address, or inspection point of contact, require submission of an
amended declaration. For Schedule 1, 2, or 3 facilities not subject to
inspection and UDOC plant sites, changes that do not directly affect
the purpose of the Convention, such as changes to a company name,
address, points of contact, non-substantive typographical errors, etc.,
do not require submission of an amended declaration or report and may
be corrected in subsequent declarations or reports that are submitted
to BXA.
Timing of Submission of Declarations and Reports
One respondent suggested that the deadline for initial declarations
and reports, and annual declarations and reports on past activities for
calendar years 1997, 1998, and 1999, should be extended from 90 days to
150 days after the date of publication of the interim rule. The
respondent notes that it will be difficult to coordinate preparation of
declarations for its many facilities within the United States. Although
BXA understands the respondent's concern that it will be difficult to
coordinate declarations and reports from many different facilities in
the United States, the U.S. Government has committed to the OPCW that
it will meet its international obligations and submit data declarations
as soon as possible. In the early phases of the regulatory planning
process, BXA contemplated requiring industry to submit declarations
within 30 days after publication of the interim rule. However, industry
representatives advised BXA that industry would need 90 days to meet
its obligations, and BXA therefore extended the deadline for submission
of initial and annual declarations on past activities. This respondent
also requested that the submission deadline for declarations and
reports should be the ``postmarked'' date. This rule requires that
declarations and reports due to BXA be postmarked by certain dates.
One respondent requested that additionally planned activities be
declared to BXA 10 days in advance of the beginning of the additional
or new production, processing or consumption of Schedule 2 chemicals or
the additional or new production of Schedule 3 chemicals, rather than
21 days in advance as specified in the proposed rule. Because this rule
requires that declarations and reports be postmarked by specified
dates, BXA does not believe that 10 days is enough time for the U.S.
Government to declare such activities to the OPCW. Therefore, this rule
requires additionally planned activities be declared 15 days in advance
of the beginning of the activities.
Several respondents requested an extension of the due dates for
submission of annual declarations on past activities from February 13
to February 28, or later. The respondents believe that industry has a
more burdensome and time-consuming task in preparing declarations than
the U.S. Government. They noted that the U.S. Government has an
electronic means to process, compile and aggregate the data
[[Page 73752]]
and does not need 45 days to accomplish this task. The respondents
further stated that in early February, many companies may not have
compiled all of the necessary data available to complete declarations
because of ordinary business cycles, inventory control systems, or
other reasons, and to comply with the February 13th due date, many
companies will have to institute new changes to corporate policies and
procedures that may affect many aspects of their business. BXA agrees
with the respondents' arguments regarding the distribution of time
under the Convention's 90-day time frame. This rule reflects in Table 1
to parts 712 through 715 of the CWCR the new due date of February 28
for annual declarations and reports on past activities. Note that
annual declarations and reports for past activities for calendar years
1997, 1998, and 1999 are due to BXA by March 30, 2000.
Two respondents stated that declarations and reporting requirements
should be based on the effective date of publication of the CWCR in
calendar year 2000. They further state that the initial and first
annual declaration of past activities should be combined into a single
declaration for Schedule 2, Schedule 3, and UDOCs to prevent undue
burdens on industry. BXA supports the respondents' concerns about the
burden declarations and reports are on U.S. industry, and has already
taken steps to minimize the burden. For example, this rule includes a
recordkeeping provision that requires U.S. industry to provide
information for years up to the effective date of the rule for which
they do have records and states that BXA will accept whatever degree of
precision is found in existing records. The final section of the Cost
Benefit Analysis of the costs and benefits of alternatives, as well as
Section 2.5.2 of the final Regulatory Flexibility Analysis, provides
examples of how BXA has interpreted the CWC requirements as narrowly as
possible so that all companies will be declaring on the same basis for
calculating Schedule 2 activities to minimize declaration requirements
for Schedule 2 sites. Further, the instructions for Form 2-3 (for
Schedule 2 declarations), instruct plants sites producing below
threshold quantities in the reporting year to declare ``0'' because
they have a declaration requirement based upon activities in previous
years thus reducing burden and confidential business information
disclosure. Finally, this rule includes an exemption for UDOCs produced
by synthesis that are ingredients, by-products, or impurities in the
manufacture of foods designed for consumption by humans or animals.
One respondent requested that for rounding of information included
on declarations and reports, no more than two significant digits be
required, and that no greater precision be required than can reasonably
be provided using existing documentation, equipment, and measurement
techniques. This rule includes additional guidance in a new Sec. 711.5
and in the reporting and declaration requirement sections of Parts 712
through 715 of the CWCR.
Additionally Planned Activities
One respondent was concerned that the Schedule 2 and Schedule 3
requirement for a declaration on additionally planned activities due to
BXA 21 days before additionally planned activities can begin implies
that the facility may not commence its activities until BXA gives
permission to do so. The respondent believes that the declaration on
additionally planned activities is a ``notice'' to BXA, and the
facility should be free to commence additional production after the
requisite time has passed without receipt of any type of permission
from BXA. The respondent further notes that the CWCR indicate that the
timing for the declaration on additionally planned activities runs from
when the notice is ``delivered to'' BXA, stating that a facility will
not know when the declaration ``is delivered'' to BXA, but rather when
it is ``sent to'' BXA. BXA agrees that the additionally planned
activities declaration requirement is a ``notice'' to BXA declaring
newly planned activities. Facilities are responsible for submitting
declarations to BXA within the required time frame prior to the
commencement of the new activities. Facilities are not required to wait
for permission from BXA to commence such activities. If a facility
begins these activities prior to the required notification time frame,
the facility may be in violation of the declaration requirement and may
be subject to civil penalties. BXA agrees with the respondent's
recommendation to make the timing for submission of a declaration on
additionally planned activities the ``sent to'' date (e.g., the
postmarked date), as reflected in Secs. 713.5(b) and 714.4 of the CWCR.
Two respondents asked about the requirements for declaring
additionally planned Schedule 2 and Schedule 3 activities provided in
Secs. 713.5 and 714.4, respectively, of the proposed CWCR. This rule
expands the requirements for additionally planned activities consistent
with an OPCW decision dated May 16, 1997 (C-I/DEC.38). Declarations on
additionally planned activities by plant sites declared under
Sec. 713.3(a)(1)(iii) or Sec. 714.2(a)(1)(iii) are required for: (1) An
additional plant not declared under Secs. 713.3(a)(1)(iii) or
714.2(a)(1)(iii) that plans to produce, process, or consume a Schedule
2 chemical or produce a Schedule 3 chemical above the applicable
declaration threshold; (2) an additional Schedule 2 chemical that will
be produced, processed, or consumed above the applicable declaration
threshold at a plant declared under Sec. 713.3(a)(1)(iii) or an
additional Schedule 3 chemical which will be produced above the
declaration threshold at a plant declared under Sec. 714.2(a)(1)(iii);
(3) an additional planned activity (production, processing, or
consumption) above the applicable threshold for a chemical declared
under Sec. 713.3(a)(1)(iii); (4) a planned increase in the production,
processing, or consumption of a Schedule 2 chemical by a plant declared
under Sec. 713.3(a)(1)(iii) or a planned increased in the production of
a Schedule 3 chemical by a plant declared under Sec. 714.2(a)(1)(iii)
to an amount which exceeds the applicable inspection threshold (see
Secs. 716.1(b)(2) and 716.1(b)(3) for the respective Schedule 2 and 3
thresholds); (5) a planned increase in the production of a Schedule 3
chemical by declared plants at a plant site to an amount above the
upper limit declared under Sec. 714.2(a)(1)(iii); (6) a change in the
anticipated starting or ending date of production, processing, or
consumption declared under Sec. 713.3(a)(1)(iii) by more than three
months; and (7) a planned increase in the production, processing, or
consumption of a Schedule 2 chemical by a declared plant by 20 percent
or more above that declared under Sec. 713.3(a)(1)(iii).
While BXA recognizes that some of the new requirements in this rule
increase the declaration burden on industry, they are required in order
to meet U.S. Government obligations under C-I/DEC.38 and are consistent
in scope with the original requirements contained in Secs. 713.5 and
714.4 of the proposed CWCR. BXA anticipates an additional 20
declarations on additionally planned activities based upon the above
new requirements, but requests that concerned parties submit comments
regarding this estimate and the overall burden of requirements mandated
under C-I/DEC.38. BXA will reevaluate these additionally planned
[[Page 73753]]
activities requirements based upon this input.
Definitions
One respondent remarked that the definition of ``declaration form''
states that all declared facilities will have facility-specific
information transmitted to the OPCW, but pointed out that information
included with UDOC declarations and Schedule 3 export and import
information is only aggregated and facility-specific information is not
submitted to the OPCW. The respondent suggested revisions to the
definition of ``declaration forms'' to clarify this point. Facility-
specific information contained in UDOC declarations is submitted to the
OPCW by the USNA. However, to clarify what information is submitted to
the OPCW, this rule revises the definitions of ``declaration or report
form'' and ``reports.''
One respondent requested a revision to the definition of
``consumption,'' noting that most chemical reactions are not 100%
complete. Accounting for the majority of the material as consumed and
the remainder as either waste or as recycled starting material is
reasonable. Therefore, this rule defines ``consumption'' of a chemical
as its conversion into another chemical via a chemical reaction. Un-
reacted material must be accounted for as either waste or as recycled
starting material.
One respondent requested clarification of ``toxic chemical'' as
used in Sec. 716.2(b)(1)(ii)(E) of the CWCR. BXA agrees that
clarification is warranted. Therefore, this rule adds a new definition
of ``toxic chemical'' to Sec. 710.1 of the CWCR. The definition is
based on the definition found in the Act.
One respondent commented that the definition of the term ``trading
company'' appears to cover the requirements for submitting a report by
an undeclared plant site, stating that the terms ``entity'' and
``companies'' in the definition are confusing. The respondent further
states that the phrase ``entities involved in the export or import of
chemicals'' could be interpreted to mean that an entity engaged in both
exports and imports is not a trading company, and only scheduled
chemicals are subject to reporting by trading companies. BXA agrees
that the definition of ``trading company'' requires clarification.
Therefore, this rule revises the definition of ``trading company'' by
replacing the word ``entity'' with ``person,'' which is also defined in
Sec. 710.1, and by clarifying that trading companies that export or
import scheduled chemicals in amounts greater than specified thresholds
are subject to reporting requirements, but not routine inspections.
Several respondents requested that a definition of production be
added to Sec. 710.1 of the CWCR to help clarify declaration
requirements. This rule adds the Convention's definition of
``production'' as the formation of a chemical through a chemical
reaction.
One respondent requested that the definition of ``host team'' be
modified to include facility representatives to recognize that the
employees of the inspected facility must contribute to the host team
because of their expertise. Section 303(b)(2) of the Act states that
``[t]he United States National Authority shall coordinate the
designation of employees of the Federal Government to accompany members
of an inspection team of the Technical Secretariat.'' The term ``Host
Team'' in Sec. 710.1 of the CWCR is meant to assign a functional name
to these designated federal government employees, who will be drawn
from different agencies, by describing their role during inspections
(i.e., to host inspectors at U.S. facilities). While BXA fully expects
that facility representatives will act as ``de facto'' Host Team
members during inspection activities, the Act imposes certain
requirements on federal employees that legally cannot be performed by
facility representatives (e.g., obtaining administrative warrants,
negotiating facility agreements, and representing the United States'
interests as a State Party). Therefore, the term ``Host Team'' in the
CWCR refers to the U.S. Government team that accompanies inspectors
from the OPCW at facilities subject to inspection, and does not include
civilian site representatives.
Finally, one respondent requested clarification of the definition
of ``storage'' as it applies to Schedule 2 and 3 chemicals and UDOCs.
BXA does not agree that a clarification is necessary, because no
quantitative reporting of storage for Schedule 2 or 3 chemicals or
UDOCs is required by the CWCR.
Electronic Submission of Information
One respondent requested that BXA permit industry to electronically
request assistance in determining its obligations under the CWCR,
including chemical determinations. The respondent further requests that
BXA respond to an incomplete request for assistance if the omitted
information is not required for responding to the request. BXA supports
electronic submissions of information to the extent possible.
Therefore, this rule includes more detailed information in Sec. 711.3
on how to contact BXA electronically. BXA will respond to requests for
chemical determinations within 10 working days of receipt. BXA will
respond to other inquiries about industry obligations under the CWCR in
a timely manner.
Facility Agreements
One respondent, while supporting the U.S. Government's approach on
managed access, requested that the concept of managed access be
introduced for UDOC inspections to strengthen the ability of Host Teams
to protect confidential business information. The Convention contains
strict rules for inspection team access to UDOC facilities based on the
area of the plant site to be inspected. The CWCR are not intended to
provide this level of detail since the actual access provided to
inspection teams will vary from facility to facility. Part IX of the
Convention's Verification Annex provides that inspected States Parties
have the right to manage inspection team access to declared plants on a
plant site. However, access to other areas of the plant site will be
agreed upon, which is more controlled than managed access. Therefore,
this rule does not specify managed access for UDOC facilities because
it could result in expanded access to inspection teams beyond the
Convention, which BXA does not support. BXA will ensure that inspection
team access does not exceed the terms of the Convention.
One respondent requested that BXA make a reasonable effort to
complete facility agreement negotiations with the OPCW on the
establishment of a new Schedule 1 facility within 200 days, stating
that without this language, any new Schedule 1 production by a new
facility could be delayed indefinitely. The Act does not give BXA the
authority to implement the Convention's restrictions on Schedule 1
production at a new facility where a facility agreement has not been
concluded. New Schedule 1 facilities must notify BXA 200 days prior to
commencing production of Schedule 1 chemicals above 100 grams
aggregate. BXA will work with the USNA to conclude a facility agreement
for new Schedule 1 facilities with the OPCW prior to the commencement
of production of Schedule 1 chemicals above 100 grams aggregate.
Two respondents requested that the facility be consulted and be
authorized to approve any facility agreement prior to conclusion by the
U.S. Government and the OPCW. The respondents further requested that
the U.S. Government consult with the facility prior to final
interpretations of the provisions of the facility agreement. BXA
recognizes that facility input is critical to the successful
negotiation of facility agreements. The
[[Page 73754]]
proposed rule inadvertently omitted language from the Act that provides
facilities with the right to participate in the preparation of facility
agreements. This rule includes such language in Sec. 716.6(b) of the
CWCR, and BXA will consult with facilities to the maximum extent
possible during negotiations with the OPCW. The United States cannot
withhold conclusion of a facility agreement with the OPCW because of
facility concerns. The Convention does not provide for facility
approval of the facility agreement. Industry should note that BXA will
inform the affected facility of the status of negotiations at the OPCW,
permit facility representatives to observe negotiations with the
Technical Secretariat to the maximum extent practicable, and prior to
conclusion of a facility agreement with the Executive Council, will
provide facilities with an opportunity to comment. During final
negotiations with the OPCW, BXA will give consideration to the
facility's comments. Finally, BXA will consult with facility
representatives prior to interpreting the facility agreement, once
completed. If a disagreement over the provisions of a facility
agreement occurs between the OPCW and BXA during an inspection that
cannot be resolved on-site, the issue will be included in the
preliminary factual finding report. After consulting with the U.S.
interagency group established by the Act and E.O. 13128, the USNA and
BXA will meet with the OPCW to resolve the issue. BXA will keep the
facility informed of discussions with the OPCW.
BXA received several comments on the Schedule 2 Model Facility
Agreement (MFA) found in Supplement No. 3 to part 716 of the CWCR.
First, concerns were expressed about a provision found under Section
2--Health and Safety, that states that if the inspected State Party so
requests on the basis of confirmed contamination or hazardous waste
requirements or regulations, any piece of equipment involved in the
inspection activities will be left at the plant site at the end of the
inspection. The respondent states that the facility may not be legally
authorized to store or dispose of contaminated items. BXA will discuss
issues related to disposal of contaminated items and hazardous waste
with facilities as necessary, and facility agreements will be drafted
accordingly.
Another concern raised by the respondents regarded sampling.
Section 7.4, paragraph 2 of the Schedule 2 MFA states in part that
``[s]ampling and analysis, for inspection purposes, may be carried out
to check for the absence of undeclared scheduled chemicals. Each sample
will be split into a minimum of four parts at the request of the
inspection team in accordance with Part C of Attachment 10.'' The
respondent states that the facility should retain the right to request
a sample split and analyze it. BXA does not believe that the sampling
language needs revision. The language does not preclude the inspected
facility from requesting split samples. Facilities should further note
that attachments to the MFA are intended to be site-specific and
completed with facility input.
One respondent correctly notes that Section 7.4, paragraph 12 of
the Schedule 2 MFA erroneously states that the inspection must stop at
the direction of the plant site representative. BXA agrees that the
plant site representative should not be authorized to stop analysis
activities in the event that these activities are not in accordance
with the facility agreement or agreed analysis procedures, or otherwise
pose a threat to safety or environmental regulations or laws.
Therefore, this rule revises the language in Section 7.4, paragraph 12
to state that the inspected State Party, in consultation with the plant
site representative, may cease such activities.
BXA received several other comments regarding concerns that the
Schedule 2 MFA does not allow for enough consultation with the facility
representative. Other comments focused on suggestions to add clarifying
language in the MFA that is site specific. Industry should note that
the MFAs found in Supplements No. 2 and 3 to part 716 are models that
include general language that could apply to all inspected facilities.
Attachments to the MFAs will make the facility agreement site-specific.
Other comments made by the public regarding the Schedule 1 and 2
MFAs have been incorporated in Supplements No. 2 and 3 to part 716.
Where applicable, corresponding changes were made to both MFAs.
BXA also received a request to develop and include in the CWCR a
Schedule 3 MFA. BXA is assessing the needs and requirements of a
Schedule 3 MFA. The OPCW's Technical Secretariat has developed a draft
MFA but there has been no movement by States Parties to complete it. To
date, no State Party that has undergone a Schedule 3 inspection has
requested a facility agreement. Moreover, the OPCW has suggested that
if a State Party requests a facility agreement for a Schedule 3 plant
site, the length of an initial inspection will be extended by 2 days.
Since the Convention limits the number of Schedule 3 and UDOC
inspections to a total of 20 inspections per year, it is unlikely that
a re-inspection will occur at a Schedule 3 facility within 5 to 10
years. Nevertheless, the Act gives Schedule 3 facilities the right to
request a facility agreement and BXA will take the respondent's
suggestion into consideration. BXA would prefer that States Parties
reach consensus on a general framework for a model before drafting a
national model, but will consider doing so if States Parties are unable
or unwilling to complete a model before Schedule 3 inspections commence
in the United States.
Finally, one respondent requested that language be added to the
CWCR to require OPCW inspection teams to follow the requirements of
relevant model facility agreements during an initial inspection. During
initial inspections, verification activities are subject to the
Convention's ``General Rules of Verification'' (Part II of the
Verification Annex) and the applicable annex for the type of facility
being inspected (Parts VI, VII, VIII, or IX). Although BXA does not
believe it is appropriate to include the respondent's suggested
language in the CWCR, BXA suggests that facilities subject to initial
inspection develop a preliminary draft facility agreement based on the
CWCR's model facility agreement. This preliminary draft will be
provided to the inspection team upon arrival at the facility. Although
the OPCW is not bound by this preliminary draft, BXA will urge that
inspection teams use it as a guide during initial inspections.
Regardless, inspection teams are always under the obligation to
discharge their functions with the least possible inconvenience and
disturbance to the facility, and to avoid hampering or delaying the
operation of a facility or affecting its safety.
Initial and Routine Inspections
Section 716.5 of the CWCR provides that the Department of Commerce
provide written Host Team notification of an inspection. Such notice
will usually be via fax or phone. If notification by fax or phone
fails, a written notification of the inspection will immediately be
posted at the plant site. A respondent questioned whether there will be
an additional notification that includes the contents of the OPCW
inspection mandate after it has been provided to the Host Team at the
point of entry. This respondent also asked how much time the facility
will have to respond to the notification, and whether the facility will
be asked to respond to the notification regarding warrants. The
[[Page 73755]]
Host Team notice from the Department of Commerce serves to notify the
facility of an inspection, advise the facility of the availability of
U.S. Government assistance, and to determine if an administrative
warrant is required. BXA asks the facility to reply to the request for
consent within 4 hours. If, after 4 hours, the request for consent is
not granted, BXA will seek an administrative warrant. The notification
also advises the facility of the availability of an Advance Team. The
company may wish to respond as soon as possible to maximize the time
available for preparation of an inspection. The Convention requires
transport of the OPCW Inspection Team to the inspected site within 12
hours of presenting the mandate. Due to this time constraint, BXA may
not be able to provide the mandate to the facility prior to the arrival
of the Inspection Team at the facility. However, the Commerce-led Host
Team currently plans to pass the mandate, if possible, to the Advance
Team at the site as soon as possible.
One respondent requested BXA to share a copy of its preliminary
(renamed ``Host Team'') notice with industry for comment. The
respondent wanted to ensure that it contains certain ``critical''
information such as the inspection mandate and establishes a dialogue
between the U.S. Government and facility on health and safety
information that could impact a facility during verification
activities. Once the CWCR are published and the interagency formally
clears the Host Team notification, BXA will make the notice available
to the public upon request. The Host Team notification is meant to
alert the facility of an impending inspection, determine whether the
facility consents to the inspection, and ascertain whether the facility
requests Advance Team support. The Host Team notification will also
contain a copy of the OPCW's notification to the USNA, which includes
health and safety information regarding special needs of inspectors and
inspection equipment. However, such information will change from
inspection to inspection, and BXA cannot anticipate Inspection Team
needs in advance. If there are special facility-specific issues (e.g.,
health and safety) that the Host Team or OPCW needs to be aware of
prior to the commencement of an inspection, they should be communicated
to the Advance Team during pre-inspection preparation activities. The
Advance Team will then inform the Host Team Leader, who will brief the
Inspection Team upon arrival at the U.S. point of entry (POE)
(Washington Dulles International Airport). The inspection mandate is
not part of the Host Team notification because the Host Team Leader
will not receive the mandate until the Inspection Team arrives at the
POE.
One respondent requested that inspections start in normal business
hours, therefore reinforcing the Convention's commitment to not impact
the regular operation of a facility. BXA does not agree that all
inspections will be conducted during normal business working hours.
Verification activities include, inter alia, physical plant
inspections, records review, the preparation of preliminary factual
findings and draft facility agreements, if applicable. Many of these
activities can be done in an administrative work space outside of
operations areas, but all must be completed prior to the conclusion of
an inspection. Limiting inspection activities to normal working hours
will increase the amount of time (i.e., number of days) Inspection
Teams remain on-site. Inspectors are obligated to discharge their
functions with the least possible inconvenience and disturbance to the
facility, and to avoid hampering or delaying the operation of a
facility or affecting its safety. BXA will take all of these factors
into consideration when determining whether an inspection should
commence, continue, or conclude during other hours. The respondent also
requested that the facility be consulted for any extension in the
duration of an inspection prior to agreement by the Host Team Leader
and the Inspection Team. BXA supports this request. Therefore, this
rule adds to Sec. 716.5(b)(2) and (b)(3) that the Host Team Leader will
consult with the inspected facility on any extension of the inspection
prior to making an agreement with the Inspection Team.
BXA has also determined that part 716 of the proposed CWCR was
deficient regarding two inspection requirements of the Convention: pre-
inspection briefing and debriefing on the preliminary factual findings.
The Convention requires that prior to the commencement of an
inspection, facility personnel brief the Inspection Team on the
facility, the activities carried out there, safety measures, and
administrative and logistic arrangements necessary for the inspection.
The pre-inspection briefing is limited to three hours. New
Sec. 716.4(c) of the CWCR contains the requirement for facilities to
provide a pre-inspection briefing and lists topics to be addressed. The
Convention also requires that the Inspection Team meet with the
inspected State Party and facility upon completion of the inspection to
review its preliminary factual findings report and to clarify any
ambiguities. The debriefing must be completed no later than 24 hours
after the completion of the inspection. New Sec. 716.4(i) contains the
requirement for a debriefing. Facilities should note that the time
required for a pre-inspection briefing and debriefing on the
preliminary factual findings is in addition to the specified period of
inspection for Schedule 2, Schedule 3, and UDOC plant sites. This rule
also includes new Secs. 716.4(b), (d) and (e) to provide a clearer
description of the inspection process and to set forth the scope of
consent to an inspection. BXA invites the public to comment on the
changes to part 716, particularly the new sections.
Three respondents stated that additional information should be
included in Sec. 716.3 to clarify, for facilities subject to routine
inspection, that withholding consent to an inspection or withdrawing
consent following the commencement of an inspection are not violations
of the regulations. BXA notes that the Act provides that consent may be
withheld for any reason or no reason. BXA also agrees that in most
circumstances, withdrawal of consent would not be a violation under
Sec. 719.2(a)(1) of the CWCR.
One respondent recommended that, in order to reduce the likelihood
of a misunderstanding by the OPCW inspectors, and to avoid possible
``international incidents,'' Sec. 716.3 should also specify the
procedures to be followed if consent is withdrawn during an inspection.
BXA does not accept this recommendation because procedures may differ
from inspection to inspection, depending on the circumstances and the
timing of a withdrawal of consent, and on whether the OPCW inspectors
decide to wait for BXA to obtain an administrative warrant and then to
continue the inspection or to terminate the inspection.
One respondent raised Constitutional concerns about the
installation of on-site monitoring equipment at Schedule 1 facilities.
Although paragraph 29 of Part VI of the Convention's Verification
Annex, pertaining to verification of declared Schedule 1 facilities,
gives the OPCW the right to install such instruments, the U.S.
Government does not anticipate that the OPCW will request to do so for
facilities subject to the CWCR. This rule moves the provision for on-
site monitoring of Schedule 1 facilities from Sec. 716.2 to a new
Sec. 716.8.
[[Page 73756]]
A respondent requested that BXA reduce the post-inspection
reporting burden on industry by allowing reports on inspection-related
costs to be voluntary, summarized, estimated by BXA or the facility, or
reported in ranges, and that the time frame for submitting such reports
be extended to 180 days after an inspection. BXA is sympathetic to the
respondent's concerns, however, the Act specifically requires that the
President report the total costs borne by United States business firms
in the course of inspections to the Congress. This requires BXA to
compel industry to submit reports on the total costs related to
inspection. BXA gives facilities the discretion to determine the
methodology for computing total costs. Because the annual report on
inspections must be submitted annually to Congress, BXA must be able to
provide as current figures as possible without excessively burdening
industry. BXA believes that the 90 day time frame is reasonable and
meets the requirements of the Act.
Clarification Procedures; Challenge Inspection Requests
Two respondents questioned whether the Department of Commerce has
the authority, under the Act, to require facilities subject to the CWCR
to provide information in response to a clarification request from
another State Party, and suggested deletion of Sec. 717.1(b) of the
CWCR. Section 101(e) of the Act and Section 3 of Executive Order No.
13128 give the Department of Commerce adequate authority to require
such information. In addition, as one respondent highlighted, the
clarification procedures in Article IX of the Convention provide a
means of clarifying and resolving ambiguities without the need for
challenge inspections. Three respondents stated that the requirement
for facilities to provide information to the Department of Commerce
pursuant to a clarification request from another State Party or the
OPCW should be clarified to establish substantive limits on the scope
of the request and a time frame for response. Substantive limits are
already provided in Sec. 717.1(b). The information must pertain to
``reporting, declaration, notification, or inspection requirements set
forth in parts 712 through 716.'' BXA agrees that a time frame for
response should be provided. Therefore, this rule requires in
Sec. 717.1(b) that information be provided to the Department of
Commerce pursuant to a clarification request within five working days.
This time frame will allow the U.S. Government to respond to another
State Party or to the OPCW within 10 days, as required by Article IX of
the Convention.
One respondent recommended that this part establish procedures for
resolving differences, including meetings with the OPCW, to avoid the
need for challenge inspections. BXA does not believe it is necessary or
appropriate for the CWCR to set forth procedures that the U.S.
Government will follow in communicating with other States Parties or
the OPCW.
Finally, one respondent suggested that a request for information
under the clarification procedure amounts to a criminal investigation,
and another respondent suggested that a facility should be able to
require BXA to obtain an administrative warrant before providing the
requested information. A request for information does not rise to the
level of a criminal investigation. An administrative warrant is not
appropriate in this context, because no physical inspection of a
facility is involved and the information requested falls within the
scope of the CWCR. Willful failure or refusal to provide information in
response to a BXA request under part 717 of the CWCR would constitute a
violation under Sec. 719.2 of the CWCR.
Facilities That Cease Involvement With Declarable Activities
Respondents were concerned about whether a facility will be
absolved from further requirements under the CWCR when the facility
eliminates its declarable activities. The respondents recommended that
BXA provide a mechanism by which the facility can commit to elimination
of declared activities, and therefore not be subject to initial
declaration and reporting. BXA does not agree that a facility should be
able to avoid submission of a declaration based on the facility's
intent to terminate the declarable activity. This would be inconsistent
with the requirements of the Convention.
Violations and Penalties
BXA received several comments on part 719--Enforcement, many of
which were adopted. The most significant changes that were made to part
719 concern its structure and the application of the administrative
process. Part 719 of this rule is intended to more accurately reflect
the three categories of Chemical Weapons Convention violations:
``violations of the Act subject to administrative and criminal
enforcement proceedings'' (Sec. 719.2); ``violations of IEEPA subject
to judicial enforcement proceedings'' (Sec. 719.3); and ``violations
and sanctions under the Act not subject to proceedings under the CWCR''
(Sec. 719.4). Section 719.2 of the CWCR sets forth violations of the
Act. The Department of Commerce and Department of State jointly apply
the administrative process that applies to these violations. The
administrative procedures are found in 15 CFR Secs. 719.5-719.22 and in
22 CFR part 103, subpart C. Section 719.3 sets forth the violations of
the International Emergency Economic Powers Act (IEEPA). Part 719
provides no administrative process for these IEEPA violations. They are
referred to the Department of Justice for judicial enforcement. The
violations contained in Sec. 719.4 have as their basis the Act, but
they are not subject to the CWCR and are provided for informational
purposes only.
In addition to the concerns expressed about structure and
organization, there were also several comments expressing general
displeasure with the precise wording of various violations and
penalties. While BXA is sympathetic to some of these comments, the
violations and penalties in the CWCR merely recite the violations and
penalties as they appear in the relevant statutes. Thus, BXA made no
substantive changes to the violation and penalty language.
Although no substantive changes were made to the language of the
violations and penalties, BXA does believe it is necessary to clarify
what the violation of ``willfully impeding an inspection'' might mean.
One respondent expressed concern that this violation could be construed
so that the exercise of the right to withhold consent (which makes it
necessary for the government to obtain an administrative warrant), or
that efforts to protect the safety of the inspectors, would constitute
willfully delaying or impeding an inspection. Since Sec. 305(a) of the
Act provides that the owner or the operator, occupant, or agent in
charge of the premises may withhold consent for any reason or no
reason, BXA does not believe those concerns are well founded.
Finally with respect to the violations and penalties, some
respondents were confused by use of the terms ``knowingly'' and
``willfully.'' The basis for this confusion was the mistaken assumption
that the Act was the statutory basis for the import violations, which
caused confusion because the criminal penalty provision says
``willfully'' rather than ``knowingly'' as required by the Act. he
reason for use of the word ``willfully'' rather than (or in addition
to) ``knowingly'' is that the statutory basis for the import violations
is the International Emergency
[[Page 73757]]
Economic Powers Act. Therefore, the criminal penalty for import
violations mirrors the IEEPA penalty provision. Several respondents
also asked BXA to clarify the meaning of the word ``knowingly'' as used
to describe the criminal penalties for refusal violations. However, the
penalty language and standards are statutory (see Sec. 501(b) of the
Act), and are therefore more appropriately interpreted by the courts.
Administrative Procedures
One respondent objected to Sec. 719.6(c), which states that
defenses that the respondent does not set forth in the Answer to a
Notice of Violation and Assessment (NOVA) are waived, except for good
cause shown. However, it is especially important that this standard
administrative law provision be included in the CWCR because the
statutory time limit for administrative proceedings is very short (30
days). Interested parties should keep in mind that the provision is not
an absolute waiver of defenses--it does permit a respondent to present
additional defenses if the Administrative Law Judge (ALJ) determines
there is a good reason for doing so.
Several respondents expressed concern about Sec. 719.20. As
proposed, it permitted documents filed with the ALJ to be made
available immediately upon filing. In response to these comments, this
rule revises Sec. 719.20(c)(2) to state that the record for decision,
including the NOVA and other documents that are filed in an
administrative proceeding, will be available to the public only after
the final administrative resolution of a case. Prior to that final
resolution, any party may request that the ALJ restrict access to any
portion of the record, and the ALJ may so direct. Thus, the revised
Part 719 ensures that parties have the opportunity to petition for
restricted access to documents or portions of documents, and to have
the ALJ rule on such petitions, before the record for decision becomes
public.
In addition, respondents expressed concern, pursuant to
Sec. 719.20(b) of the CWCR, that the ALJ may transfer previously
restricted material to the unrestricted portion of the record once it
becomes declassified or unrestricted due to the passage of time. The
respondent suggested implementing a new process whereby the ALJ would
provide notice and opportunity for objection before making such a move.
BXA has not made such a change as the material is already protected.
Since material may not be transferred until it becomes declassified or
derestricted, the ALJ would have to make inquiries if there were any
doubt about the status of the material.
Other respondents requested that Sec. 719.14, regarding hearings,
be clarified. BXA changed this section to provide that hearings are
closed to the public, except upon good cause shown, and clarified that
evidence of settlement discussions is not admissible in any
administrative proceeding, and that witnesses may be cross-examined.
However, the ALJ continues to have discretion over what evidence is
admissible; the federal rules of evidence do not apply.
One respondent asked why Sec. 719.18 sets forth factors to be
considered in assessing penalties for reporting- and inspection-related
violations but not for import violations. As the revised CWCR provides
no administrative process for import violations, the question is moot.
However, the answer was that the statutory basis for the two types of
violations is different: the Act is the basis for reporting- and
inspection-related violations and the IEEPA is the basis for import
violations. Only the Act requires specific factors for consideration.
Various other comments requested clarification regarding for whom
the Department of Commerce provides legal representation
(Sec. 719.1(a)(2)), service via facsimile (Sec. 719.8(b)), issuance of
subpoenas (719.11(b)), and payment for copies of the hearing transcript
(Sec. 719.14(c)(1)). All these clarifications have been made. BXA also
agreed to use the word ``request'' rather than the word ``demand'' in
connection with requests for a hearing (Sec. 719.6). Other comments did
not result in any changes. BXA did not extend the time permitted to
request a hearing from 15 days to 30 days for refusal violations as the
15-day time period is statutory, and BXA did not delete the requirement
for a notice of appearance.
Denial of Export Privileges
Like part 719, part 720 of the CWCR was reorganized and clarified,
though not significantly changed. This reorganization was accomplished
in lieu of deleting part 720 and organizing denial cases as a third
category of cases in part 719 as one respondent suggested. That
suggestion was not adopted because a denial of export privileges can
only occur after a conviction of crimes outside the scope of the CWCR.
The Act requires that respondents have notice and an opportunity for
hearing before a denial of export privileges is imposed, and this part
sets forth that process. Several respondents noted discrepancies in
part 720 of the CWCR regarding the standards for ALJ review and the
standards for Under Secretary review. BXA has changed this part to make
it clear that anyone may request a hearing before an ALJ, but that
there are specific grounds for appeal from the ALJ decision to the
Under Secretary. The grounds for appeal include: omission of a
necessary finding of fact, a necessary legal conclusion is contrary to
law, a prejudicial error occurred, or the decision was arbitrary,
capricious, or an abuse of discretion.
Additional Public Comments
There were several public comments that were not addressed in this
Supplementary Information section, but those comments were reviewed and
incorporated, as appropriate, in the CWCR itself. Additionally,
typographical errors and minor clarifications were corrected in this
rule.
III. Public Comments on Declaration and Reporting Forms and
Handbooks
This section outlines comments received from four respondents
regarding the Department of Commerce's Federal Register notice (Volume
64, Number 141) of July 21, 1999, announcing an Office of Management
and Budget review and request for comments on BXA's proposal for
collection of information under the provisions of the Paperwork
Reduction Act (44 U.S.C. Chapter 35) for the Chemical Weapons
Convention Declaration Forms (OMB Approval Number 0694-0091). Two
respondents requested that BXA establish an official record of the
public comments received on the forms by including those comments in
the supplementary information section of this rule. BXA agrees with
this request and provides those comments herein. All typographical
errors and minor clarifications noted by the respondents were
corrected, and are not addressed here.
Declaration and Report Handbooks for Schedule 1, 2 and 3 Chemicals and
Unscheduled Discrete Organic Chemicals
Section 3 ``Guide to Submission of Forms'' of the Declaration and
Report Handbooks for Schedules 1, 2 and 3 and Unscheduled Discrete
Organic Chemicals. One respondent stated that the ``Guide to Submission
of Forms'' complicates industry's ability to decipher its specific
obligations. The respondent requested clarification and that BXA ensure
the consistency of the final reporting requirements and establish an
immediate routine for fulfilling these requirements. Additionally, two
respondents stated
[[Page 73758]]
that the Guides indicate Form A is ``required, as appropriate'' whereas
they believe Form A is optional and should be referred to as
``attached, as appropriate.''
BXA clarified each of the Handbooks'' ``Guide to Submission of
Forms'' by including the routine date for submission of annual
declarations on past activities and annual reports on export and import
activities. However, because initial declarations and reports as well
as declarations and reports on past activities from multiple years must
be submitted to BXA within 90 days after publication of this rule, BXA
is maintaining the specific declaration and report submission
requirements as a note to the Guide. In the first revision to the
Handbook, BXA will remove these notes from the Guide and the routine
filing requirements will be clearly defined.
BXA also revised each of the Handbooks' ``Guide to Submission of
Forms'' to reflect that Form A is an attachment and should be submitted
as appropriate. Form A should be used to submit any attachment to a
declaration or report including, but not limited to, a plant site
diagram, a technical description of a Schedule 1 facility or a
structural formula drawing of a chemical.
The following clarifies the specific types of declarations and/or
reports that must be submitted to BXA within 90 days of the publication
of the Chemical Weapons Convention Regulations (CWCR) as well as the
calendar years for which this information must be provided:
Schedule 1
--Initial Declaration: Submit a technical description of your facility
if you produced in excess of 100 grams aggregate of Schedule 1 chemical
in calendar years 1997, 1998, or 1999 (do not submit any production
data)
--Annual Declaration on Past Activities: 1997, 1998, and 1999
--Annual Report on Exports and Imports: 1997, 1998, and 1999
Schedule 2
--Initial Declaration: 1994, 1995, and 1996 (For each chemical, you
must submit three Forms 2-3--one for each of the calendar years 1994,
1995, and 1996.)
--Initial Report on Exports and Imports: 1996
--Declaration on Chemical Production at any time since January 1, 1946
for Chemical Weapons (CW) Purposes: one-time declaration
--Annual Declaration on Past Activities (production, processing
consumption, export and import): 1997, 1998, and 1999
--Annual Report on Exports and Imports: 1997, 1998, and 1999
Schedule 3
--Initial Declaration: 1996
--Initial Report on Exports and Imports: 1996
--Declaration on Chemical Production at any time since January 1, 1946
for Chemical Weapons (CW) Purposes: one-time declaration
--Annual Declaration on Past Activities (production): 1997, 1998, and
1999
--Annual Report on Exports and Imports: 1997, 1998, and 1999
Unscheduled Discrete Organic Chemicals (UDOCs)
--Initial Declaration: 1996
--Annual Declaration on Past Activities (production): 1997, 1998, and
1999
Supplement 1 to the Declaration and Report Handbooks--Latitude and
Longitude of the Facility. Three respondents recommended that the plant
site should be able to choose and identify a reasonable or prominent
location within the declared plant site for declaring the geographical
coordinates. All three respondents noted that the center of the plant
site may be an inaccessible location. One respondent recommended that
if the plant site chooses the location for the geographical
coordinates, then it must also describe or identify the point for which
the coordinates were provided, such as a control room, an
administration building or the front gate. Two respondents recommended
that BXA specifically authorize the use of Global Positioning System
(GPS) technology as the preferred method of calculating the center
point of the facility. Lastly, one respondent that recommended BXA
remove Supplement 1 (How to Determine Latitude and Longitude from
Topographical Maps) and put this information on the BXA web site.
BXA recognizes that most companies will use a GPS to determine its
latitude and longitude and that the OPCW generally uses this method to
confirm declared geographical coordinates. BXA notes, however, that a
GPS reading is not the only method available for identifying the
geographical coordinates of the plant site and therefore will not
designate GPS as the preferable method for providing latitude and
longitude. Geographical coordinates provided from a GPS reading are
acceptable. In addition, upon request BXA will informally assist
companies to identify its geographical coordinates. BXA has made minor
clarifications to Supplement 1 in response to the comments.
Supplement 3 to the Declaration and Report Handbooks. One
respondent noted that Macedonia was missing from the list of country
codes which are used for reporting exports and imports. Another
respondent noted that Supplement 3 does not include a code for Taiwan.
The respondent noted ongoing trade in CWC chemicals between the United
States and Taiwan and suggested that BXA adopt a country code.
Supplement 3 to the Declaration and Report Handbooks did include
Macedonia as The Former Yugoslavia Republic of Macedonia (code: MKD).
Consequently, BXA has not made any changes. BXA renamed Supplement No.
3 from ``Country Codes'' to ``Destination Codes.'' BXA also created a
new code for Taiwan (TAI) on Supplement Number 3, following the code
for Zimbabwe. This new code should be used to declare or report
transfers of Schedule 2 and 3 chemicals to or from Taiwan. Transfers to
Taiwan of Schedule 2 and 3 chemicals require an End-Use Certificate and
may also require an export license under the Export Administration
Regulations (EAR) (15 CFR 730-799) or the International Traffic and in
Arms Regulations (ITAR) (22 CFR 100-130). Note that effective April 29,
2000, transfers of Schedule 2 chemicals to or from Taiwan are
prohibited under the EAR and the CWCR.
Glossary of Terms. Two respondents recommended that BXA create a
glossary of common terms for use in completing declaration and report
forms. The respondents noted that without a glossary, industry would
constantly have to cross-reference the CWCR which is a time-consuming
process. BXA created a Glossary of Terms which will be designated as
Supplement 1 to each of the four Handbooks. Accordingly, Supplement 2
instructs industry how to determine the latitude and longitude of your
plant site, Supplement 3 is the Product Group Codes, and Supplement 4
is the Destination Codes.
Point of contact for declarations, reports and inspections. Two
respondents recommended that BXA change the term ``point of contact''
because it may create confusion when referring to individuals with
responsibilities for declaration and report questions or inspection
notifications. Both respondents recommended use of the terms
``declaration point of contact'' and ``inspection point of contact.''
One respondent also recommended that BXA give the option of listing up
to two
[[Page 73759]]
additional inspection contacts because one person may not be available
24 hours per day at the phone numbers provided. BXA changed the
appropriate forms to differentiate between the two types of point of
contacts: declaration and report point of contact and inspection point
of contact. BXA also changed the appropriate forms to allow an optional
inspection contact to be provided. Due to space constraints on the
forms, BXA was unable to allocate space for a third inspection contact
as requested by the respondent.
Product Group Codes. One respondent noted that industry may
possibly be confused with the requirements for Product Group Codes
because these codes combine classification of main activities by
feature and function. The respondent recommended that BXA clarify the
basis for selecting between the activities and suggested that industry
should select the single best descriptor of any activity, whether a
literal or functional descriptor, based on the company's representation
of the activity. BXA has changed Form 2-2 (question 2-2.5), Form 3-2
(question 3-2.5) and the UDOC Form (question UDOC.6) to alleviate any
possible confusion over what product group codes should be declared to
describe the activities at the plant or plant site. Product group codes
describe the type of ultimate or final products that are produced,
processed or consumed at the plant or plant site. The forms have been
changed to require that you provide one or more Standard International
Trade Classification (SITC) Code that describes the type of ultimate
products that are manufactured at the plant or plant site. If a plant
site chooses to provide only one product group code, it will be
accepted by BXA.
Plant Site and/or Plant names. One respondent noted that the forms
for Schedules 1, 2 and 3 as well as for UDOCs state that BXA will
assign a ``unique name'' to a declared plant site and/or plant. The
respondent recommended that BXA clarify that a plant site and/or plant
will have the same ``unique name'' across the different Schedules of
Chemicals as well as for UDOCs, so there is no confusion and multiple
``unique names'' are not assigned. BXA believes the respondent has
misinterpreted the instructions for assigning a ``unique name'' for the
plant site and/or plant. Each company assigns the ``unique name'' to
its plant site and plants, not BXA. Industry should be careful to
assign the same ``unique name'' to its plant site and plants regardless
of the Schedule of Chemicals under which the declaration or report is
being submitted. Upon receipt of a declaration or report, BXA will
assign a ``unique code'' to each plant site and all plants associated
with the plant site. These codes are referred to as the ``U.S. Code,''
which for plant sites, consists of the letters ``USC'' followed by five
digits (e.g., USC00123), and plants will have a three-digit extension
to the plant site code (e.g., USC00123-002). Industry should be careful
to provide the same location and description of the plant site and
plants to ensure that BXA will not mistakenly assign multiple codes.
BXA will inform industry in writing of its relevant U.S. Codes so that
it will be easier to identify the plant sites and plants during
discussions as well as for submission of subsequent declarations or
reports and recordkeeping purposes.
Confidential Business Information (CBI). One respondent noted that
none of the forms contains a question or a check box for companies to
indicate if Confidential Business Information (CBI) is included in the
declaration or report. The respondent noted that companies should have
the ability to inform BXA of which information it considers to be CBI
and recommended that BXA change the forms to allow for the designation
of CBI. CBI is governed by the provisions of part 718 of the CWCR.
Supplement No. 1 to part 718 identifies those fields on each form which
contain CBI as defined by the Act. If a company seeks additional CBI
protection for information in fields which are not listed in part 718
of the CWCR, it should provide a detailed explanation describing why
release of the information contained in those fields is a trade secret
and should not be released to the public. This explanation should be
attached to Form A.
Create a form to report undeclared status. One respondent
recommended that BXA create a form for industry to report that it has
ceased its declarable activities and is in an ``undeclared status''
capacity. It would be an additional burden on industry to submit a form
to BXA to report its ``undeclared status.'' If BXA does not receive a
declaration or report from a company that was previously declared, BXA
will conclude that the company has changed its status.
Add gray shading to forms. One respondent recommended that BXA add
gray shading on the top of all relevant forms where the plant site and
plant information is to be identified. The respondent noted that the
gray shading features help it to identify what information must be
completed. BXA has added the gray shading to all relevant forms.
Schedule 2 Forms
Schedule 2 Form 2-2--Activities of the Plant. Two respondents
requested that question 2-2.7 on Form 2-2 be changed to add a separate
selection for the activity type ``other'' and to also include the
question ``Is this plant dedicated to Schedule 2 activities? Yes/No.''
BXA deleted the word ``exclusively'' from question 2-2.7 and added a
separate selection for activity type ``other.'' BXA did not include the
question recommended by the respondent because it is not necessary.
Schedule 2 Form 2-2--Definition of Nameplate and Design Capacities.
Two respondents recommended that the definitions for ``nameplate
capacity'' and ``design capacity'' be clarified. One respondent noted
that industry's interpretation of these two definitions is synonymous
and the other respondent noted that nameplate capacity has many
different industrial meanings. One respondent also noted that the
production capacity was requested for all Schedule 2 chemicals at the
plant that were produced, processed, and/or consumed above the
applicable threshold but that the instructions were unclear if the
capacity should only be provided for chemicals that were produced. BXA
acknowledges that industry may have different definitions for
``nameplate capacity.'' However, for purposes of Schedule 2
declarations, the nameplate capacity definition remains unchanged and
the design capacity definition is clarified by stating that it is the
corresponding theoretically calculated product output, without test
data or other supportive plant specific information. BXA also clarified
the instruction to question 2-2.8 to state that you identify all
Schedule 2 chemicals produced, processed or consumed above the
applicable threshold, but that you only provide the production capacity
and calculation method for those chemicals which you produced.
Schedule 2 Annual Declarations on Anticipated Activities and
Declarations on Additionally Planned Activities. One respondent noted
that it may not be possible to be certain about the starting and ending
dates for production, processing or consumption of a Schedule 2
chemical as required in the Annual Declaration on Anticipated
Activities and, therefore, requested that BXA clarify the requirement
for approximate, not actual, start and end dates for submission of a
Declaration on Additionally Planned Activities. The respondent further
requested that BXA clarify that there is not a requirement for
submitting a second Declaration on
[[Page 73760]]
Anticipated Activities. Lastly, the respondent noted the long lead-time
for processing Schedule 2 and Schedule 3 Declarations on Anticipated
Activities and recommended BXA to shorten the time frame for submission
of the declaration from 21 days to 10 days.
For the Annual Declaration on Anticipated Activities, the time
periods when declared activities are anticipated to occur should be as
precise as possible, but should in any case be accurate to within a
three-month period. The declaration requirement in relation to these
periods does not necessarily mean that individual planned production,
processing, or consumption campaigns need to be declared, rather this
three-month period provides a flexible framework for declarations and
will reduce the number and frequency of Declarations on Additionally
Planned Activities. Since the requirement for declaring the anticipated
time periods for production, processing or consumption is already an
``approximate'' projection coupled with the three-month period for
completion of an activity, BXA does not believe it is necessary or
appropriate to state that additionally planned time periods are
``approximate.'' BXA did not add a clarification to Form 2-3C to state
that only one Declaration on Anticipated Activities is required to be
submitted. There may be situations in which a company submitted a
Declaration on Additionally Planned Activities to declare new or
changed anticipated production periods and it has further changes to
those production periods which are not covered by the three-month
period. BXA believes this will rarely occur, if ever. BXA has changed
Form 2-3C to include the types of changes that will require a
Declaration on Additionally Planned Activities. As previously noted,
BXA has changed the time-frame for submission of the Declaration on
Additionally Planned Activities from 21 days to 15 days.
Schedule 3 Forms
General changes to Schedule 3 Forms. One respondent recommended
that Form 3-3 be revised to require identification of the year being
reported. Two respondents recommended that an instruction be added
before question 3-3.1 to clarify the type of declaration or report to
which the question refers. Both respondents also recommended that new
types of ``purposes of production'' be added to Questions 3-3.1b and 3-
3.2b on Form 3-3, including inter-company transfers, as well as
transfers to the agricultural, manufacturing, construction,
pharmaceutical, and service or other industries. BXA has made the
instructional clarifications to Form 3-3. However, we did not change
Form 3-3 to require that the reporting years be identified because this
information is indicated on the Certification Form and only one Form 3-
3 per chemical, per year is included in the declaration package.
Conversely, for the Schedule 2 Initial Declaration, three Forms 2-3
must be submitted for each chemical for calendar years 1994, 1995, and
1996. Therefore, there is a clear need for the Schedule 2-3 Form to
identify the year of the data being reported. Separate Schedule 3
declarations must be submitted for the Initial Declaration (1996) and
the Annual Declarations on Past Activities for calendar years 1997,
1998, and 1999. The Certification Form for each of these declarations
will identify the year of the data declared. You cannot combine data
from several years into one declaration. This procedure is the same for
Initial Reports on Exports and Imports and Annual Reports on Exports
and Imports. BXA changed the purpose of production from ``transfer to
other company'' to ``transfer to other industry.'' BXA believes this
change broadens the scope of the purposes to cover all transfers.
Section 3 to the Schedule 3 Handbook. One respondent recommended
that Section 3 of the Schedule 3 Handbook outline the mixtures'
thresholds to assist industry in complying with its obligations. BXA
has added the mixture thresholds to Section 3 of the Schedule 3
Handbook as well as to the relevant sections of the Schedule 1 and 2
Handbooks. BXA also included the exemptions for UDOCs in the UDOC
Handbook.
Delete Structural Formula from Form 3-3. One respondent noted that
Form 3-3 unnecessarily includes a check box to indicate that a
structural formula is attached to the declaration or report. The
respondent noted that the list of Schedule 3 chemicals is well known
and identifiable and a structural formula would, therefore, not be
required. BXA has changed Form 3-3 to make the requirement optional for
submission of a Schedule 3 structural formula.
Exports and Imports of Schedule 2 and Schedule 3 Chemicals. One
respondent requested that Forms 2-3B and 3-3 address the applicable
threshold mixture for the export and import of Schedule 2 and Schedule
3 mixtures. The respondent also requested that Figure A on Forms 2-3B
and 3-3 distinguish between the applicable threshold for declaring and
reporting the chemical, including the mixture exemption, versus
exporting or importing the chemical. The respondent further recommended
that Forms 2-3B and 3-3 address the licensing or End-Use Certificate
requirements for exports to non-States Parties.
BXA did not reference the End-Use Certificate or license
requirements on the forms for the export of Schedule 2 or Schedule 3
chemicals to non-States Parties because these requirements are not
applicable to declarations or reports. Such requirements are contained
in Sec. 745.2 of the EAR, which states in part that U.S. exporters must
obtain an End-Use Certificate prior to the export of a Schedule 2 or 3
chemical to a non-State Party and to submit the Certificate to BXA.
This is in addition to, but separate from, any license requirement
under the EAR for such exports. BXA also did not change Figure A on
Forms 2-3B and 3-3 because of space constraints. However, BXA created
new tables in Section 3 of the Schedule 2 and Schedule 3 Report and
Declaration Handbooks that will assist industry in determining the
different thresholds that apply for declaration and reporting
requirements for Schedule 2 and Schedule 3 chemicals.
Unscheduled Discrete Organic Chemicals Forms
General changes to the declaration form for Unscheduled Discrete
Organic Chemicals (UDOCs). Two respondents requested that BXA clarify
question UDOC.7 of the UDOC Form or change it to ask for an
``estimate'' or the ``approximate'' number of plants on the plant site
producing UDOCs, including all PSF chemicals, instead of asking for the
actual number of plants. One respondent requested a clarification to
question UDOC.9 to request the ``approximate'' number of PSF plants at
the plant site that produced an individual PSF chemical over 30 metric
tons. This respondent also requested a clarification to question
UDOC.10.1-10.4 to indicate that the ``approximate'' number of PSF
plants whose aggregate production of all PSF chemicals falls within
each of the PSF-chemical production ranges.
BXA changed UDOC Form questions UDOC.7 and UDOC.10.1-10.4 to
require the ``approximate'' number of UDOC plants (including PSF
plants) and the ``approximate'' aggregate production of all PSF
chemicals, respectively. BXA did not change question UDOC.9 to require
the ``approximate'' number of PSF plants that produced an
``individual'' PSF chemical over 30 metric tons. Rather BXA changed
this question to require the ``exact'' number of PSF plants at the
plant site that produced an individual PSF chemical over 30 metric tons
because Part IX , paragraph 6, of the Convention's
[[Page 73761]]
Verification Annex states ``* * * specify the number of PSF-plants
within the plant site and include information on the approximate
aggregate amount of production for PSF-chemicals produced by each PSF-
plant in the previous calendar year expressed in ranges * * *'' BXA
believes that for PSF plants you must identify the exact number of
plants on your plant site, but you can provide the approximate amount
of PSF-chemicals produced by these plants.
Section 3--Exemptions--Unscheduled Discrete Organic Chemicals
Handbook. Two respondents noted that the Unscheduled Discrete Organic
Chemicals (UDOCs) Handbook did not appropriately list the exemptions
from declaration requirements and requested that BXA include all of the
exemptions that are listed in the CWCR. To assist industry in
determining its obligations for UDOC declarations, BXA is listing all
of the UDOC exemptions in Section 3 of the UDOC Handbook that are
listed in part 715 the CWCR. BXA reminds industry that where there are
any discrepancies between the requirements of the Handbooks and the
CWCR, the CWCR prevails.
Miscellaneous issues
Assistance on questions and chemical determinations. Two
respondents that requested BXA accept electronic requests for
assistance or chemical determinations via e-mail in addition to
telephone and fax requests. Both respondents noted that an electronic
mechanism for processing requests will enhance BXA's flexibility and
responsiveness to assist industry. One respondent requested BXA to
provide a chemical determination even if all of the required
information was not submitted. Lastly, one respondent requested BXA to
establish a provision or a clarification to Sec. 711.4 of the CWCR in
which any assistance given to a company by BXA that turns out to be
incorrect will not result in an enforcement action against the company
and should be considered release from any penalty. BXA agrees with the
respondents' request for an electronic means through which to seek
assistance and to submit chemical determinations, and has revised
Sec. 711.4 appropriately. BXA also revised Sec. 711.4 to identify the
type of information that should be submitted for a chemical
determination and established a provision for allowing facilities to
explain why there are ambiguities or deficiencies that preclude them
from supplying this information. BXA will make every effort to make a
determination based upon the submitted information, and only if this is
not possible will BXA return the request and identify what additional
information must be provided in order to complete the chemical
determination. For enforcement purposes, only a written response from
BXA is binding. Written advice applies only to the person or persons to
whom it is addressed.
Identification of the Owner and Operator of the facility. The
Department of State requested BXA to provide information on the owner
and operator, occupant or agent in charge of a facility or plant site
so that it can inform the owner and operator, occupant or agent in
charge in writing of an impending inspection as required by section 304
of the Act. Section 304 of the Act requires that the USNA notify, in
writing, the owner and the operator, occupant, or agent in charge of
the facility. In order to fulfill this legal requirement, BXA has
changed the appropriate forms and forms instructions to obtain the
telephone and facsimile numbers for both the owner and the operator,
occupant, or agent in charge of a facility.
Chemicals Produced for Chemical Weapons Purposes. One respondent
recommended that Question 2-4.2 on Form 2-4 and Question 3-4.2 on Form
3-4 should be revised to require the identification of the final
chemical weapon (CW) product, if known, or the Scheduled Chemical name,
if known. The respondent cited difficulties industry may have in
identifying the final CW product because of the confidential and
proprietary nature of commercial production records, availability of
records, and terms of mergers, acquisition or internal restructuring.
Forms 2-4 and 3-4 (questions and instructions) already instruct
industry to provide the final product or chemical, if this information
is known. Therefore, no changes were made to these forms.
IV. Part-by-Part Analysis
The Chemical Weapons Convention Regulations (CWCR) will include 13
parts, as follows:
Part 710--General Information and Overview of the CWCR. This part
includes general information about the Convention, definitions of terms
used in the CWCR, an overview of Scheduled chemicals and examples of
affected industries. States Parties to the Convention are listed in
Supplement No. 1 to part 710 of the CWCR. This part also briefly
describes the declaration, reporting, and inspection provisions of the
Convention.
Part 711--General Information Regarding Declaration, Reporting, and
Notification Requirements. This part provides an overview of
declaration and other reporting requirements, who is responsible for
declarations and reports, and where to get assistance, forms and
handbooks. The Convention requires an initial declaration and report
and subsequent annual declarations and reports for activities involving
specified amounts of certain chemicals. If, after reviewing parts 712
through 715, you determine that you have declaration and/or reporting
requirements, you may obtain the appropriate forms by contacting the
Bureau of Export Administration (BXA). Note that in instances where a
declaration or report is required, the operator of a facility required
to declare or report under the CWCR is responsible for the submission
of all required forms in accordance with all applicable provisions of
the CWCR. Also note that the Act defines and provides for the
protection of confidential business information obtained pursuant to
the CWCR.
Part 712--Activities involving Schedule 1 Chemicals. This part
prohibits imports of Schedule 1 chemicals from non-States Parties and
imports from States Parties for purposes other than research, medical,
pharmaceutical, or protective purposes. (Part 712 also cross-references
similar export restrictions on Schedule 1 chemicals set forth in the
Export Administration Regulations.) This part also describes
declaration and other reporting requirements for activities involving
Schedule 1 chemicals, including production, use (consumption), exports,
imports, domestic transfers and storage of any quantity of Schedule 1
chemicals. This part provides that facilities that produce more than
100 grams aggregate of Schedule 1 chemicals in a calendar year are
considered Schedule 1 ``declared'' facilities. Facility-specific
information on ``declared facilities'' will be forwarded to the
Organization for the Prohibition of Chemical Weapons (OPCW) and all
Schedule 1 ``declared'' facilities will be subject to routine on-site
inspection by the OPCW. Finally, this part requires advance
notification of all exports and imports of Schedule 1 chemicals to or
from other States Parties, and planned changes related to the initial
declaration. Note that BXA published an interim rule in the Federal
Register on May 18, 1999 (64 FR 27138), amending the Export
Administration Regulations (EAR) to implement the export control
provisions of the CWC that are subject to Department of Commerce
jurisdiction. The EAR also require prior notification of all exports
[[Page 73762]]
of Schedule 1 chemicals and annual reports of exports of such
chemicals. Schedule 1 chemicals are included in Supplement No. 1 to
this part.
Part 713--Activities involving Schedule 2 Chemicals. This part
prohibits imports of any Schedule 2 chemical on or after April 29,
2000, from any destination that is not a party to the Convention,
except for mixtures containing 10 percent or less of a Schedule 2
chemical. (Part 713 cross-references similar export restrictions on
Schedule 2 chemicals in the EAR.) This part also describes declaration
and other reporting requirements for activities involving Schedule 2
chemicals, including production of any amount of a Schedule 2 chemical
at any time since January 1, 1946, for chemical weapons purposes;
production, processing, or consumption of a Schedule 2 chemical in
excess of specified quantities; and exports and imports of a Schedule 2
chemical in excess of specified quantities. Further, this part requires
declarations on anticipated production, processing, or consumption in
the next calendar year of a Schedule 2 chemical in excess of specified
quantities as well as certain additionally planned production,
processing or consumption activities. Declaration and reporting
requirements apply also to Schedule 2 chemicals contained in mixtures.
Note, however, that the quantity of a Schedule 2 chemical contained in
a mixture must be counted for declaration and report purposes only if
the concentration of the Schedule 2 chemical in the mixture is 30% or
more by volume or by weight, whichever yields the lesser percent.
If the Schedule 2 chemical in a mixture equals or exceeds the
stated percentage concentration, you must count only the amount
(weight) of the Schedule 2 chemical in the mixture, not the total
weight of the mixture. Schedule 2 chemicals are included in Supplement
No. 1 to this part.
Part 714--Activities involving Schedule 3 Chemicals. This part
describes declaration and other reporting requirements for activities
involving Schedule 3 chemicals, including production of any amount of a
Schedule 3 chemical at any time since January 1, 1946, for chemical
weapons purposes; production of a Schedule 3 chemical in excess of
specified quantities; and exports and imports of a Schedule 3 chemical
in excess of specified quantities. Further, this part requires
declaration of anticipated production in the next calendar year of a
Schedule 3 chemical in excess of specified quantities as well as
certain additionally planned production activities. Declaration and
reporting requirements apply also to Schedule 3 chemicals contained in
mixtures. Note, however, that the quantity of a Schedule 3 chemical
contained in a mixture must be counted for declaration and reporting
purposes 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. If the mixture contains 80 percent or more of the
Schedule 3 chemical, you must count only the amount (weight) of the
Schedule 3 chemical contained in the mixture, not the total weight of
the mixture. Schedule 3 chemicals are included in Supplement No. 1 to
this part.
Part 715--Activities involving Unscheduled Discrete Organic
Chemicals (UDOCs). This part describes declaration requirements for the
production of UDOCs in excess of specified quantities. However, note
that declarations are not required for certain chemicals and chemical
mixtures, including those produced through a biological or bio-mediated
process; polymers and oligomers; certain synthetic mixtures of organic
chemicals; unscheduled discrete organic chemicals produced
coincidentally as byproducts of a manufacturing or production process
that are not isolated or captured for use or sale during the process
and are routed to, or escape from, the waste stream of a stack,
incinerator, or wastewater treatment system or any other waste stream;
or products from the refining of crude oil, including sulfur-containing
crude oil.
Part 716--Inspections. This part implements the inspection
provisions of the Convention, consistent with the Act. It describes
notification procedures, the responsibilities of the Department of
Commerce as host and escort for inspections, types of inspections, and
scope and conduct of inspections. The United States National Authority
(USNA) will provide written notification to the owner and operator,
occupant or agent in charge of the premises to be inspected. BXA will
provide Host Team notice to the inspection point of contact identified
in declaration forms submitted by the facility. This part also
describes the duration and frequency of inspections, and the role of a
facility agreement. A facility agreement is a site-specific agreement
between the U.S. Government and the Organization for the Prohibition of
Chemical Weapons. The purpose for a facility agreement is to define the
inspection scope and procedures for a given facility under the
Convention and to facilitate future inspections of the facility by
enhancing efficiency and predictability and reducing preparation costs
for the facility. The U.S. Government and the OPCW will begin
negotiating such facility agreements during the initial inspections of
facilities that require facility agreements pursuant to the Convention
and Act, and for additional declared facilities that request a facility
agreement pursuant to the Act. Supplement Nos. 2 and 3 include model
facility agreements for Schedule 1 and Schedule 2 facilities,
respectively.
Part 717--Clarification and challenge inspection procedures. This
part describes clarification procedures under the Convention and the
scope and purpose of on-site challenge inspections. On-site challenge
inspections may be conducted at any facility or location in the United
States for the sole purpose of clarifying and resolving any questions
concerning possible non-compliance with the provisions of the CWC. The
USNA will provide written notification of a challenge inspection to the
owner and operator, occupant or agent in charge of the premises. The
Department of Commerce will provide Host Team notification to the
inspection point of contact of a declared facility, or to the owner or
occupant of an facility that has not been declared under the
declaration requirements of the Convention.
Part 718--Confidential business information (CBI). This part sets
forth the identification and treatment of CBI as defined in the Act.
Part 719--Enforcement. This part sets forth the civil and criminal
penalties and enforcement procedures that apply to violations of the
reporting and inspections requirements and provisions relating to the
importation of Schedule 1 and 2 chemicals.
Part 720--Denial of export privileges. This part sets forth a
penalty, denial of export privileges, that applies to persons convicted
under 18 U.S.C. 229.
Part 721--Inspection of records and recordkeeping. This part
includes the recordkeeping requirements of the CWCR, including
retention and reproduction requirements.
Part 722--Interpretations. This part is reserved for future use. It
will provide explanations and examples for declaration requirements and
other interpretations to guide industry and other U.S. persons in
determining obligations under the CWCR.
Comments on this interim rule must be submitted to BXA by January
31, 2000. Send comments to: the Regulatory Policy Division, Bureau of
Export Administration, Room 2705, 14th Street and Pennsylvania Ave.,
N.W., Washington, D.C. 20230.
[[Page 73763]]
Rulemaking Requirements
1. This interim 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, nor shall any person be subject to a penalty for failure
to comply with a collection of information, subject to the Paperwork
Reduction Act (PRA), unless that collection of information displays a
currently valid OMB Control Number. This rule revises an existing
collection of information requirement subject to the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), which the Office of
Management and Budget has approved and reinstated under OMB Collection
No. 0694-0091 (December 1999). The public reporting burdens for the new
collections of information are estimated to average 10.6 hours for
Schedule 1 Chemicals, 11.9 hours for Schedule 2 chemicals, 2.5 hours
for Schedule 3 chemicals, 5.3 for Unscheduled Discrete Organic
Chemicals, and .17 hours for Schedule 1 notifications. It is estimated
to take approximately 1.18 hours to complete each of the nine Schedule
1 forms, 1.19 hours for each of the ten Schedule 2 forms, .36 hours for
each of the seven Schedule 3 forms, and 1.33 hours for each of the four
Unscheduled Discrete Organic Chemicals forms. The burden hours
associated with completing a particular type of declaration or report
package (e.g., Schedule 1 initial declaration, Schedule 2 annual
declaration on past activities) will change depending on the number of
forms required to comply with the specific declaration or report
requirement. Table 1 to Parts 712, 713, 714, and 715 of the CWCR
identifies the specific forms which must be included in each type
declaration or report package. The Declaration and Report Handbooks
include a ``Guide to Submission of Forms'' which also identifies the
specific forms that must be included in a declaration or report
package. To calculate the number of hours it takes to complete a
specific type of declaration or report, multiply the number of forms
required for a specific declaration or report type by the number of
hours estimated to complete each form.
BXA will use the information contained in declarations and reports
submitted by U.S. persons to compile the U.S. National Industrial
Declaration in order to meet our obligations under the Chemicals
Weapons Convention. BXA will submit the U.S. National Industrial
Declaration to the United States National Authority who will forward
the Declaration to the Organization on the Prohibition of Chemical
Weapons as required by the Convention.
3. This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under
Executive Order 13132.
4. BXA completed a Cost Benefit Analysis (CBA) pursuant to
Executive Order 12866 and an Initial Regulatory Flexibility Analysis
(IRFA) pursuant to 5 U.S.C. 603 for the proposed rule, and requested
comments from the public. BXA received no comments from the public on
either the CBA or the IRFA. Therefore, BXA is using the analysis of the
IRFA and the CBA, with certain edits to make it consistent with this
interim rule, for the Final Regulatory Flexibility Analysis (FRFA)
required by 5 U.S.C. 604. A summary of the FRFA and CBA follows. The
CBA and the FRFA are available on BXA's website at www.cwc.gov. Copies
of the CBA and the complete FRFA may be obtained from the Bureau of
Export Administration Freedom of Information Officer, Bureau of Export
Administration Freedom of Information Records Inspection Facility, Room
6883, Department of Commerce, 14th Street and Pennsylvania Avenue, NW,
Washington, DC 20230 or by calling (202) 482-0500.
The FRFA identifies the Small Business Administration's (SBA) small
business size standards, in terms of number of employees, for
``Chemicals and Allied Products'' by four-digit Standard Industrial
Classification (SIC) codes. These SBA standards indicate that a ``small
business'' in the chemical industry can cover a range of sizes, from up
to 500 employees to up to 1,000 employees. The FRFA states that BXA
does not have information on which SIC code categories will include
companies that are subject to the declaration, reporting, notification
or inspection requirements of this rule, and therefore, BXA is unable
to estimate with certainty the number of small businesses that will be
affected by this rule. BXA anticipates some 2,000 firms will be
affected by the CWCR, and many of them may have no more than 500
employees, thus falling under the SBA generic definition of ``small
business.''
The FRFA and the CBA report BXA's estimate that compliance with the
requirements of this rule will total approximately $377,654 to gather
and maintain relevant data and to fill out declarations, reports and
notifications, and approximately $2,166,880 for inspections. The
average cost of an inspection, based on the assumption that 40
facilities will undergo inspections each year, is $54,150. The FRFA and
CBA describe the expected benefits to the United States of implementing
the requirements of the Convention, including increased national and
economic security.
The FRFA explains that BXA's discretion in formulating the
declaration, reporting and notification requirements of this rule is
limited by the Convention. The 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, BXA 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 BXA. 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,'' BXA 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.
[[Page 73764]]
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 warrants, Treaties.
15 CFR Part 717
Chemicals, Confidential business information, Reporting and
recordkeeping requirements, Search warrants, 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.
1. In 15 CFR, Chapter VII, Subchapter B is designated as Chemical
Weapons Convention Regulations.
2. In 15 CFR, Subchapter B, Parts 710 through 722 are added to read
as follows:
PART 710--GENERAL INFORMATION AND OVERVIEW OF THE CHEMICAL WEAPONS
CONVENTION REGULATIONS (CWCR)
Sec.
710.1 Definitions of terms used in the Chemical Weapons Convention
Regulations (CWCR).
710.2 Scope of the CWCR.
710.3 Purposes of the Convention and CWCR.
710.4 Overview of scheduled chemicals and examples of affected
industries.
710.5 Authority.
710.6 Relationship between the Chemical Weapons Convention
Regulations and the Export Administration Regulations.
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
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703.
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 722 of this subchapter, unless otherwise noted):
Act (The): Means the Chemical Weapons Convention Implementation Act
of 1998 (22 U.S.C. 6701 et seq.).
Bureau of Export Administration (BXA). Means the Bureau of Export
Administration of the United States Department of Commerce, including
the Office of Export Administration and the Office of 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) A toxic chemical and its 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) A munition or device, 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 munition or device; or
(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 722.
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 due to BXA
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
required to complete data declarations of activities involving Schedule
1, Schedule 2, Schedule 3, or unscheduled discrete organic chemicals
above specified threshold quantities. Only certain declared facilities
and plant sites are subject to routine inspections under the CWCR.
Plant sites that produced either Schedule 2 or Schedule 3 chemicals for
CW purposes at any time since January 1, 1946, are also ``declared''
plant sites. However, such plant sites are not subject to routine
inspection if they are not subject to declaration requirements because
of past production, processing or consumption of Scheduled 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.
Domestic transfer. Means, with regard to declaration requirements
for Schedule 1 and chemicals under the CWCR, any movement of any amount
of Schedule 1 chemical 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.
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
[[Page 73765]]
to a specific facility subject to on-site verification pursuant to
Articles IV, V, and VI of the Convention.
Host Team. Means the U.S. Government team that accompanies the
inspection team from the Organization for the Prohibition of Chemical
Weapons during a CWC inspection for which the regulations in 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 Team. Means the group of inspectors and inspection
assistants assigned by the Director-General of the Technical
Secretariat to conduct a particular inspection.
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.
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 BXA 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.
Synthesis. Means production of a chemical from its reactants.
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 amounts greater than specified thresholds, they are
subject to reporting requirements but are not subject to routine
inspections.
Transfer. See domestic transfer.
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
[[Page 73766]]
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 722
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
declaration, reporting, and inspection requirements apply to all
persons and facilities located in the United States, except U.S.
Government facilities as follows:
(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'' does 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 CWCR compel data
declarations and reports from facilities subject to the CWCR (parts 710
through 722 of this subchapter) on activities, including production,
processing, consumption, exports and imports, involving chemicals
further described in parts 712 through 715 of this subchapter. These
regulations do not apply to activities involving inorganic chemicals
other than those listed in the Schedules of Chemicals or to other
specifically exempted unscheduled discrete organic chemicals. In
addition, these regulations set forth procedures for routine
inspections of ``declared'' facilities by teams of international
inspectors in part 716 of this subchapter, and set forth clarification
procedures and procedures for challenge inspections (see part 717) that
could be requested at any facility or location in the United States
subject to the CWCR. Finally, the CWCR restrict certain imports of
Schedule 1 and 2 chemicals into the United States from non-States
Parties and prohibit imports of Schedule 1 chemicals except for
research, medical, pharmaceutical, or protective purposes.
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 722 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 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 722 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
[[Page 73767]]
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 722 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.
Certain obligations of the U.S. government under the CWC pertain to
exports. These obligations 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. 742.18 and part 745 of the EAR, and Export Control
Classification Numbers 1C350, 1C351 and 1C355 of the Commerce Control
List (Supplement No. 1 to part 774 of the EAR).
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 December 30, 1999
Albania
Algeria
Argentina
Armenia
Australia
Austria
Bahrain
Bangladesh
Belarus
Belgium
Benin
Bolivia
Bosnia-Herzegovina
Botswana
Brazil
Brunei Darussalam
Bulgaria
Burkina Faso
Burundi
Cameroon
Canada
Chile
China*
Cook Islands
Costa Rica
Cote d'Ivoire (Ivory Coast)
Croatia
Cuba
Cyprus
Czech Republic
Denmark
Ecuador
El Salvador
Equatorial Guinea
Ethiopia
Estonia
Fiji
Finland
France
Gambia
Georgia
Germany
Ghana
Greece
Guinea
Guyana
Holy See
Hungary
Iceland
India
Indonesia
Iran
Ireland
Italy
Japan
Jordan
Kenya
Korea (Republic of)
Kuwait
Laos (P.D.R.)
Latvia
Lesotho
Liechtenstein
Lithuania
Luxembourg
Macedonia
Malawi
Maldives
Mali
Malta
Mauritius
Mauritania
Mexico
Moldova (Republic of)
Monaco
Mongolia
Morocco
Namibia
Nepal
Netherlands
New Zealand
Nicaragua
Niger
Nigeria
Norway
Oman
Pakistan
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Poland
Portugal
Qatar
Romania
Russian Federation
Saint Lucia
Saudi Arabia
Senegal
Seychelles
Singapore
Slovak Republic
Slovenia
South Africa
Spain
Sri Lanka
Sudan
Suriname
Swaziland
Sweden
[[Page 73768]]
Switzerland
Tajikistan
Tanzania, United Republic of
Togo
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan
Ukraine
United Kingdom
United States
Uruguay
Uzbekistan
Venezuela
Vietnam
Zimbabwe
*For CWC States Parties purposes, China includes Hong Kong and Macau.
PART 711--GENERAL INFORMATION REGARDING DECLARATION, REPORTING AND
NOTIFICATION REQUIREMENTS
Sec.
711.1 Overview of declaration, reporting, and notification
requirements.
711.2 Who submits declarations, reports, and notifications.
711.3 Assistance in determining your obligations.
711.4 Declaration and reporting of activities occurring prior to
December 30, 1999.
711.5 Numerical precision of submitted data.
711.6 Where to obtain forms.
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703.
Sec. 711.1 Overview of declaration, reporting, and notification
requirements.
Parts 712 through 715 of the CWCR (parts 710 through 722 of this
subchapter) describe the declaration, notification and reporting
requirements for Schedules 1, 2 and 3 chemicals and for unscheduled
discrete organic chemicals (UDOCs). For each type of chemical, the
Convention requires an initial declaration and subsequent annual
declarations. If, after reviewing parts 712 through 715 of this
subchapter, you determine that you have declaration, notification or
reporting requirements, you may obtain the appropriate forms by
contacting the Bureau of Export Administration (see Sec. 711.6).
Sec. 711.2 Who submits declarations, reports, and notifications.
The owner, operator, or senior management official of a facility
subject to declaration, report, or notification requirements under the
CWCR (parts 710 through 722 of this subchapter) is responsible for the
submission of all required documents in accordance with all applicable
provisions of the CWCR.
Sec. 711.3 Assistance in determining your obligations.
(a) Determining if your chemical is subject to declaration,
reporting or 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 BXA. Such requests may be faxed to
(703) 235-1481, e-mailed to cdr@cwc.gov, or mailed to Information
Technology Team, Bureau of Export Administration, U.S. Department of
Commerce, 1555 Wilson Boulevard, Suite 710, 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 BXA cannot make a determination based
upon the information submitted, BXA will return the request to you and
identify the additional information that is necessary to complete a
chemical determination.
(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 fax 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 other CWC-related
issues, and you require a response from BXA in writing, submit a
detailed request to BXA that explains your question, issue, or request.
Send the request to the address or fax included in paragraph (a) of
this section, or e-mail the request to cwcqa@cwc.gov.
(c) BXA response to your request. BXA will respond in writing to
your chemical determination request submitted under paragraph (a) of
this section within 10 working days of receipt of the request. BXA will
respond to other inquiries about industry obligations under the CWCR in
a timely manner.
(d) Other BXA contact information. (1) Declaration and report
requirements. For questions on declaration or report requirements, or
help in completing forms, you may also contact BXA's Information
Technology Team (ITT) by phone at (703) 235-1335.
(2) Inquiries regarding inspections and facility agreements. For
questions regarding inspections and facility agreements, contact BXA's
Inspection Management Team (IMT) by phone at (202) 482-6114 or fax
(202) 482-4744.
Sec. 711.4 Declaration and reporting of activities occurring prior to
December 30, 1999.
(a) Facilities subject to the CWCR are required to prepare and
submit declarations and reports, to the extent that the necessary
information and records are available, on activities occurring prior to
December 30, 1999. Willful failure or refusal to submit such
declarations and reports constitutes a violation under part 719 of this
subchapter. Declarations and reports are not required if records and
information necessary to prepare them are not available for one or more
of the following reasons:
(1) The necessary information was not collected, or the necessary
records were not kept, because no regulatory requirement to do so was
in effect prior to December 30, 1999 and at the time of the activity;
(2) The information, though collected at the time of the activity,
was discarded prior to December 30, 1999 in accordance with normal
business practices; or
(3) The current custodian of the records or information is no
longer affiliated with a facility subject to the CWCR due to changes in
ownership or control of that facility which took place prior to
December 30, 1999.
(b) If partial information is available, facilities are required to
provide whatever information is available, on the appropriate forms,
with a notation on Form A indicating that complete information is not
available.
(c) This Sec. 711.4 applies only to initial declarations and
reports, and to annual declarations and reports for calendar years
1997, 1998, and 1999.
[[Page 73769]]
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.
Forms to complete declarations and reports required by the CWCR may
be obtained by contacting: Information Technology Team, Bureau of
Export Administration, U.S. Department of Commerce, 1555 Wilson Blvd.,
Suite 710, Arlington, VA 22209-2405, Telephone: (703) 235-1335. Forms
may also be downloaded from the Internet at www.cwc.gov.
PART 712--ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS
Sec.
712.1 Round to zero rule that applies to activities involving
Schedule 1 chemicals.
712.2 Prohibitions involving imports of Schedule 1 chemicals.
712.3 Initial and annual declaration requirements for facilities
engaged in the production of Schedule 1 chemicals for purposes not
prohibited by the CWC.
712.4 New Schedule 1 production facility.
712.5 Advance notification and annual report of all exports and
imports of Schedule 1 chemicals to, or from, other States' Parties.
712.6 Frequency and timing of declarations, reports and
notifications.
712.7 Amended declaration or report.
Supplement No. 1 to Part 712--Schedule 1 Chemicals
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.
Sec. 712.1 Round to zero rule that applies to activities involving
Schedule 1 chemicals.
(a) See Sec. 711.6 of this subchapter for information on obtaining
the forms you will need to declare and report activities involving
Schedule 1 chemicals.
(b) Facilities that produce, export or import mixtures containing
less than 0.5% aggregate quantities of Schedule 1 chemicals as
unavoidable by-products or impurities may round to zero and are not
subject to the provisions of this part 712. Schedule 1 content may be
calculated by volume or weight, whichever yields the lesser percent.
Note that such mixtures may be subject to regulatory requirements of
other federal agencies.
Sec. 712.2 Prohibitions involving imports of Schedule 1 chemicals.
(a) 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 BXA 45 calendar days prior to the import
pursuant to Sec. 712.5.
(b)(1) The provisions of paragraph (a) 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 (b)(2) of this
section, pending destruction of the Schedule 1 chemical;
(2) A person referred to in paragraph (b)(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.
Note to Sec. 712.2: For specific provisions relating to the
prior notification of exports of all Schedule 1 chemicals, see
Sec. 742.18 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 Secs. 742.2
and 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.
Sec. 712.3 Initial and annual declaration requirements for facilities
engaged in the production of Schedule 1 chemicals for purposes not
prohibited by the CWC.
(a) Declaration requirements. (1) Initial declaration. You must
complete the forms specified in paragraph (b)(1) of this section,
providing a current technical description of your facility or its
relevant parts, if you produced Schedule 1 chemicals at your facility
in excess of 100 grams aggregate in any one of the calendar years 1997,
1998, or 1999. Note: Do not include production data in your initial
declaration. Such information should be included in your annual
declaration on past activities. See paragraph (a)(2) of this section.
(2) Annual declaration on past activities. You must complete the
forms specified in paragraph (b)(2) of this section if you produced at
your facility in excess of 100 grams aggregate of Schedule 1 chemicals
in the previous calendar year, beginning with calendar year 1997. 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 the total amount of 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.
(3) 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 paragraph (a)(1) of this section) 200 calendar days
before commencing operations or increasing production which will result
in production of more than 100 grams aggregate of Schedule 1 chemicals
(see Sec. 712.4).
(b) Declaration forms to be used. (1) Initial declaration. (i) You
must complete 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 year 1997, 1998, or 1999. You must provide a
detailed current technical description of your facility or its relevant
parts including a narrative statement, a detailed diagram of the
declared areas in the facility, and an inventory of equipment in the
declared area.
(ii) If you plan to change the technical description of your
facility from your initial declaration completed and submitted pursuant
to paragraph (a)(1) of this section and Sec. 712.6, you must notify BXA
200 calendar days prior to the change. Such notifications must be made
through an amended declaration 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)(2) 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
[[Page 73770]]
calendar year, beginning with calendar year 1997. 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 chemical 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).
Note to Sec. 712.3(c): Schedule 1 reaction intermediates which
exist or might exist during the course of synthesis to produce non-
scheduled chemicals and which cannot be isolated using available
technology should not be declared if the reaction is allowed to go
to completion, completely consuming the real or hypothetical
intermediates.
(d) ``Declared'' Schedule 1 facilities and routine inspections.
Only facilities that produced in excess of 100 grams aggregate of
Schedule 1 chemicals in calendar year 1997 or 1998, or during the
previous calendar year, or that anticipate producing in excess of 100
grams aggregate of Schedule 1 chemicals during the next calendar year
are considered ``declared'' Schedule 1 facilities for the years
declared. A ``declared'' Schedule 1 facility is subject to initial and
routine inspection by the OPCW (see part 716 of this subchapter).
(e) 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 BXA within 30 days of receipt by
BXA of an annual declaration on past activities or annual declaration
on anticipated activities (see paragraphs (a)(2) and (a)(3) of this
section). If your facility does not produce more than 100 grams
aggregate of Schedule 1 chemicals, no approval by BXA is required.
Sec. 712.4 New Schedule 1 production facility.
(a) Establishment of a new Schedule 1 production facility. (1) If
your facility was not declared under Sec. 712.3 in a previous calendar
year, 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 (a current detailed technical description of your
facility) to BXA at least 200 calendar days in advance of commencing
such production. Such facilities are considered ``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 BXA within 30 days of receipt by BXA of
that initial declaration.
(b) Types of declaration forms required. If your new Schedule 1
production facility will produce in excess of 100 grams aggregate of
Schedule 1 chemicals, you must complete the Certification Form, Form 1-
1 and Form A. You must also provide a detailed technical description of
the new facility or its relevant parts, including a detailed diagram of
the declared areas in the facility, and an inventory of equipment in
the declared areas.
(c) Two hundred days after a new Schedule 1 production facility
submits its initial declaration, it is subject to the annual
declaration requirements of Sec. 712.3(a)(2) and (a)(3).
Sec. 712.5 Advance notification and annual report of all exports
1 and imports of Schedule 1 chemicals to, or from, other
States Parties.
---------------------------------------------------------------------------
\1\ Effective May 18, 1999, these advance notification and
annual report requirements for exports are set forth in parts 742
and 745 of the Export Administration Regulations (EAR) (15 CFR parts
742 and 745).
---------------------------------------------------------------------------
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 BXA 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
notification and annual report requirements of this section do not
relieve you of any requirement to obtain a license from the Department
of Commerce for the export of Schedule 1 chemicals subject to the
Export Administration Regulations (15 CFR parts 730 through 799) or
from the Department of State for the export of Schedule 1 chemicals
subject to the International Traffic in Arms Regulations (22 CFR parts
120 through 130). Only facilities that produce in excess of 100 grams
aggregate of Schedule 1 chemicals annually are ``declared'' facilities
and are subject to routine inspections pursuant to part 716 of this
subchapter.
(a) Advance notification of exports and imports. (1) You must
notify BXA at least 45 calendar days prior to exporting or importing
any quantity of a Schedule 1 chemical listed in Supplement No. 1 to
this part to or from another State Party. Note that notifications for
exports may be sent to BXA prior to or after submission of a license
application to BXA for Schedule 1 chemicals subject to the EAR and
controlled under ECCNs 1C350 or 1C351 or to the Department of State for
Schedule 1 chemicals controlled under the ITAR. Such notices must be
submitted separately from license applications.
(i) 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 fax numbers, along with the
following information:
(A) Chemical name;
(B) Structural formula of the chemical;
(C) Chemical Abstract Service (CAS) Registry Number;
(D) Quantity involved in grams;
(E) Planned date of export or import;
(F) Purpose (end-use) of export or import (i.e., research, medical,
pharmaceutical, or protective purpose);
(G) Name(s) of exporter and importer;
(H) Complete street address(es) of exporter and importer;
[[Page 73771]]
(I) U.S. export license or control number, if known; and
(J) Company identification number, once assigned by BXA.
(ii) Send the notification by fax to (703) 235-1481 or to the
following address for mail and courier deliveries:
Information Technology Team, Bureau of Export Administration,
Department of Commerce, 1555 Wilson Boulevard, Suite 710, Arlington, VA
22209-2405, Attn: ``Advance Notification of Schedule 1 Chemical
[Export] [Import].''
(iii) Upon receipt of the notification, BXA will inform the
exporter of the earliest date the shipment may occur under the
notification procedure. To export the 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
Secs. 742.2 and 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, beginning with calendar year 1997,
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, beginning with
calendar year 1997, must submit an annual report on exports and
imports.
Note to paragraph (b)(1): The U.S. Government will not submit to
the OPCW company-specific information relating to the export or import
of Schedule 1 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) 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 may report the export or import by:
(1) Submitting, 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) Submitting, separately from your declaration, a Certification,
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 may report the export or import by:
(1) Submitting, 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) Submitting, 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 submit 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. 712.6 Frequency and timing of declarations, reports and
notifications.
Declarations, reports and notifications required under this part
must be postmarked by the appropriate date identified in Table 1 of
this section. Required declarations, reports and notifications include:
(a) Initial declaration (technical description);
(b) Annual declaration on past activities (production during the
previous calendar year, beginning with 1997);
(c) Annual report on exports and imports from trading companies,
facilities and other persons (during the previous calendar year,
beginning with 1997);
(d) Annual declaration on anticipated activities (production in the
next calendar year, beginning in calendar year 2000 for production
anticipated for calendar year 2001);
(e) Advance notification of any export to or import from another
State Party; and
(f) Initial declaration of a new Schedule 1 production facility.
Table 1 to Sec. 712.6.--Deadlines for Submission of Schedule 1
Declarations
------------------------------------------------------------------------
Declarations and
notifications Applicable forms Due dates
------------------------------------------------------------------------
Initial Declaration-- Certification, 1-1, March 30, 2000.
Declared facility A, B (optional).
(technical description).
Annual Declaration on Past Certification, 1-1, For 1997, 1998, and
Activities (previous 1-2, 1-2A, 1-2B, 1- 1999 March 30,
calendar year, starting 3 (if also exported 2000. Thereafter,
with 1997)--Declared or imported), A (as February 28.
facility (past production). appropriate), B
(optional).
Annual report on exports and Certification, 1-1, For 1997, 1998, and
imports (previous calendar 1-3, A (as 1999 March 30,
year, starting with 1997) appropriate), B 2000. Thereafter,
(facility, trading company, (optional). February 28.
other persons).
Annual Declaration on Certification, 1-1, August 3 of each
Anticipated Activities 1-4, A (as year prior to the
(next calendar year). appropriate), B calendar year in
(optional). which anticipated
activities will
take place,
beginning in
calendar year 2000.
Advance Notification of any Notify on 45 calendar days
export to or import from letterhead. See prior to the export
another State Party. Sec. 712.5 of this or import.
subchapter.
Initial Declaration of a new Certification, 1-1, 200 calendar days
Schedule 1 facility. A (as appropriate), before commencing
B (optional). such production.
------------------------------------------------------------------------
Sec. 712.7 Amended declaration or report.
(a) You must submit an amended declaration or report for changes to
previously submitted information on chemicals, activities and end-use
purposes or the addition of new chemicals, activities and end-use
purposes.
(b) For declared Schedule 1 facilities, changes that may affect
verification activities, such as changes of owner or operator, company
name, address, or
[[Page 73772]]
inspection point of contact, require an amended declaration. Non-
substantive typographical errors and changes to the declaration point
of contact do not require submission of an amended declaration or
report and may be corrected in subsequent declarations or reports.
(c) For undeclared Schedule 1 facilities, trading companies and
other persons, changes that do not directly affect the purpose of the
Convention, such as changes to a company name, address, point of
contact, or non-substantive typographical errors, do not require
submission of an amended report and may be corrected in subsequent
reports.
(d) If you are required to submit an amended declaration or report
pursuant to paragraph (a) or (b) of this section, you must complete and
submit a new Certification Form and the specific form(s) being amended
(e.g., annual declaration on past activities, annual declaration on
anticipated activities). Only complete that portion of each form that
corrects the previously submitted information.
Supplement No. 1 to Part 712--Schedule 1 Chemicals
------------------------------------------------------------------------
(CAS registry
number)
------------------------------------------------------------------------
A. Toxic chemicals:
(1) O-Alkyl (C10, incl. cycloalkyl)
alkyl (Me, Et, n-Pr or i-Pr)-phosphonofluoridates
e.g. Sarin: O-Isopropyl (107-44-8)
methylphosphonofluoridate....................
Soman: O-Pinacolyl methylphosphonofluoridate.. (96-64-0)
(2) O-Alkyl (C10, incl. cycloalkyl) N,N- (77-81-6)
dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidocyanidates e.g. Tabun: O-Ethyl N,N-
dimethyl phosphoramidocyanidate..................
(3) O-Alkyl (H or C10, incl. (50782-69-9)
cycloalkyl) S-2-dialkyl (Me, Et, n-Pr or i-Pr)-
aminoethyl alkyl (Me, Et, n-Pr or i-Pr)
phosphonothiolates and corresponding alkylated or
protonated salts e.g. VX: O-Ethyl S-2-
diisopropylaminoethyl methyl phosphonothiolate...
(4) Sulfur mustards:
2-Chloroethylchloromethylsulfide.............. (2625-76-5)
Mustard gas: Bis(2-chloroethyl)sulfide........ (505-60-2)
Bis(2-chloroethylthio)methane................. (63869-13-6)
Sesquimustard: 1,2-Bis(2- (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-chloroethylthioethyl)ether... (63918-89-8)
(5) Lewisites:
Lewisite 1: 2-Chlorovinyldichloroarsine....... (541-25-3)
Lewisite 2: Bis(2-chlorovinyl)chloroarsine.... (40334-69-8)
Lewisite 3: Tris(2-chlorovinyl)arsine......... (40334-70-1)
(6) Nitrogen mustards:
HN1: Bis(2-chloroethyl)ethylamine............. (538-07-8)
HN2: Bis(2-chloroethyl)methylamine............ (51-75-2)
HN3: Tris(2-chloroethyl)amine................. (555-77-1)
(7) Saxitoxin..................................... (35523-89-8)
(8) Ricin......................................... (9009-86-3)
B. Precursors:
(9) Alkyl (Me, Et, n-Pr or i-Pr) (676-99-3)
phosphonyldifluorides e.g. DF:
Methylphosphonyldifluoride.......................
(10) O-Alkyl (H or C10, incl. (57856-11-8)
cycloalkyl) O-2-dialkyl (Me, Et, n-Pr or i-Pr)-
aminoethyl alkyl (Me, Et, N-Pr or i-Pr)
phosphonites and corresponding alkylated or
protonated salts e.g. QL: O-Ethyl O-2-
diisopropylaminoethyl methylphosphonite..........
(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): 0-Ethyl-2-
diisopropylaminoethyl methylphosphonite (QL) (C.A.S. #57856-11-8),
Ethylphosphonyl difluoride (C.A.S. #753-98-0), Methylphosphonyl
difluoride (C.A.S. #676-99-3), Saxitoxin (35523-89-8), 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).
PART 713--ACTIVITIES INVOLVING SCHEDULE 2 CHEMICALS
Sec.
713.1 Prohibition on imports of Schedule 2 chemicals from non-
States Parties.
713.2 Declaration on past production of Schedule 2 chemicals for
chemical weapons purposes.
713.3 Initial and annual declaration requirements for plant sites
that produce, process or consume Schedule 2 chemicals in excess of
specified thresholds.
713.4 Initial and annual declaration and reporting requirements for
exports and imports of Schedule 2 chemicals.
713.5 Advance declaration requirements for additionally planned
production, processing or consumption of Schedule 2 chemicals.
713.6 Frequency and timing of declarations and reports.
713.7 Amended declaration or report.
Supplement No. 1 to Part 713--Schedule 2 Chemicals
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.
Sec. 713.1 Prohibition on imports of Schedule 2 chemicals from non-
States Parties.
(a) See Sec. 711.6 of this subchapter for information on obtaining
the forms you will need to declare and report activities involving
Schedule 2 chemicals. You may not import any Schedule 2 chemical (see
Supplement No. 1 to this part) on or after April 29, 2000, from
[[Page 73773]]
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 on or after April 29, 2000
to non-States Parties and for End-Use Certificate requirements for
exports of Schedule 2 chemicals prior to April 29, 2000 to such
destinations.
(b) Paragraph (a) of this section does not apply to:
(1) The transfer or receipt of a Schedule 2 chemical from a non-
State Party 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; or
(2) Mixtures containing Schedule 2 chemicals, if the concentration
of each Schedule 2 chemical in the mixture is 10% or less by weight.
Note, however, that such mixtures may be subject to regulatory
requirements of other federal agencies.
Sec. 713.2 Declaration on past production of Schedule 2 chemicals for
chemical weapons purposes.
You must complete the Certification Form and Forms 2-1, 2-2, 2-4,
Form A, if you produced at your plant site any quantity of a Schedule 2
chemical at any time since January 1, 1946, for chemical weapons
purposes. Form B is optional. You must declare the total quantity of
such a chemical produced, rounded to the nearest kilogram. Note that
you are not subject to routine inspection unless you are a declared
facility pursuant to Sec. 713.3.
Sec. 713.3 Initial and 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) Initial declaration. You produced, processed or consumed at one
or more plants on your plant site during any of the calendar years
1994, 1995, or 1996, a Schedule 2 chemical in excess of the following
declaration threshold quantities:
(A) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (see
Schedule 2, paragraph A.3 included in Supplement No. 1 to this part);
(B) 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
included in Supplement No. 1 to this part); or
(C) 1 metric ton of any chemical listed in Schedule 2, Part B (see
Supplement No. 1 to this part).
Note to paragraph (a)(1)(i). To determine whether you have an
initial declaration requirement for Schedule 2 activities, you must
determine whether you produced, processed or consumed a Schedule 2
chemical above the applicable threshold quantity at one or more
plants on your plant site in calendar years 1994, 1995, or 1996. For
example, if you determine that one plant on your plant site produced
greater than 1 kilogram of the chemical BZ in calendar year 1995,
and no plants on your plant site produced, processed or consumed any
Schedule 2 chemical above the applicable threshold quantity in
calendar years 1994 or 1996, you have an initial declaration
requirement under this paragraph. You must submit three Forms 2-3--
one for each of the calendar years 1994, 1995, and 1996--and
complete question 2-3.1 on each of the forms to declare production
data on BZ for calendar years 1994, 1995 and 1996. For calendar year
1995, you would declare the quantity of BZ actually produced. For
calendar years 1994 and 1996, you would declare ``0'' production
quantity. Since the plant site did not engage in any other
declarable activity (i.e., consumption, processing), you would leave
blank questions 2-3.2 and 2-3.3 on Form 2-3 for calendar years 1994,
1995, and 1996. Note that declaring a ``0'' quantity for production
in 1994 and 1996, as opposed to leaving the question blank, permits
BXA to distinguish the activity that triggered the initial
declaration requirement for each year from activities that were not
declarable during that period.
(ii) Annual declaration on past activities. You produced, processed
or consumed at one or more plants on your plant site during any of the
previous three calendar years, a Schedule 2 chemical in excess of the
applicable declaration threshold quantity specified in paragraphs
(a)(1)(i)(A) through (C) of this section.
Note to paragraph (a)(1)(ii). To determine whether 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
quantity at one or more plants on your plant site in any one of the
three previous calendar years. For example, for the 1997 declaration
period, if you determine that one plant on your plant site produced
greater than 1 kilogram of the chemical BZ in calendar year 1995,
and no plants on your plant site produced, processed or consumed any
Schedule 2 chemical above the applicable threshold quantity in
calendar years 1996 or 1997, you still have a declaration
requirement under this paragraph for the previous calendar year
(1997). However, you must only declare on Form 2-3 (question 2-3.1),
production data for calendar year 1997. You would declare ``0''
production quantity because you did not produce BZ above the
applicable threshold quantity in calendar year 1997. Since the plant
site did not engage in any other declarable activity (i.e.,
consumption, processing) in the 1995-1997 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 1997, as opposed to
leaving the question blank, permits BXA to distinguish the activity
that triggered the declaration requirement from activities that were
not declarable during that period.
(iii) 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, starting with activities
anticipated for calendar year 2001, a Schedule 2 chemical in excess of
the applicable declaration threshold quantity set forth in paragraphs
(a)(1)(i)(A) through (C) of this section.
(2) Mixtures containing a Schedule 2 chemical. (i)The quantity of a
Schedule 2 chemical contained in a mixture must be counted when
determining the total quantity of a Schedule 2 chemical produced,
processed, or consumed at your plant only if the concentration of the
Schedule 2 chemical in the mixture is 30% or more by volume or by
weight, whichever yields the lesser percent.
(ii) Counting the amount of the Schedule 2 chemical in a mixture.
If your mixture contains 30% or more concentration of a Schedule 2
chemical, you must count only the amount (weight) of the Schedule 2
chemical in the mixture, not the total weight of the mixture.
(iii) Determining declaration requirements for production,
processing and consumption. You must include the amount (weight) of a
Schedule 2 chemical in a mixture when determining the total production,
total processing, or total consumption of that Schedule 2 chemical at a
plant on your plant site. If the total amount of the produced,
processed or consumed Schedule 2 chemical exceeds the applicable
declaration threshold set forth in paragraphs (a)(1)(i)(A) through
[[Page 73774]]
(C) of this section, you have a declaration requirement. For example,
if during calendar year 1997, 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, that plant
produced 1100 kilograms and exceeded 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 1997.
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) Initial declaration.
You must complete the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A,
and Form A if you produced, processed or consumed at one or more plants
on your plant site a Schedule 2 chemical in excess of the applicable
declaration threshold quantity specified in paragraphs (a)(1)(i)(A)
through (C) of this section during any of the three calendar years
1994, 1995, or 1996. Form B is optional. If you are subject to initial
declaration requirements, you must include data for each of the
calendar years 1994, 1995, and 1996.
(2) 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) through (C) 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.
(3) 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 quantity set
forth in paragraphs (a)(1)(i)(A) through (C) of this section during the
following calendar year, beginning with activities planned for calendar
year 2001. Form B is optional.
(c) Quantities to be declared. (1) Production, processing and
consumption of a Schedule 2 chemical above the declaration threshold.--
(i) Initial declaration. 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 quantity for that Schedule 2 chemical for each of
the calendar years 1994, 1995, and 1996. Do not aggregate amounts of
production, processing or consumption 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 levels. For
those years in which you produced, processed or consumed the declared
chemical below the declaration threshold, you declare ``0'' only for
the declared activities.
(ii) Annual declaration on past activities. If you are required to
complete forms pursuant to paragraph (a)(1)(ii) 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 quantity for that
Schedule 2 chemical. Do not aggregate amounts of production, processing
or consumption 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 levels. If in the previous calendar year
you produced, processed or consumed below the declaration threshold,
but your declaration requirement is triggered because of activities
occurring in an earlier year, you declare ``0'' only for the declared
activities.
(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 sites. A plant site that
comprises at least one plant that produced, processed or consumed a
Schedule 2 chemical above the applicable threshold quantity set forth
in paragraphs (a)(1)(i)(A) through (C) of this section during any of
the previous three calendar years or is anticipated to produce, process
or consume a Schedule 2 chemical above the applicable threshold
quantity in the next calendar year is a ``declared'' plant site. A
plant site that submitted an initial declaration for activities that
occurred in 1994, 1995, or 1996 is a ``declared'' Schedule 2 plant site
for those years.
(e) Declared Schedule 2 plant sites subject to 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 quantity set forth in paragraphs (a)(1)(i)(A) through (C) of
this section (see part 716 of this subchapter). A plant site that
submitted an initial declaration for calendar years 1994, 1995, and
1996, and exceeded the applicable inspection threshold is also subject
to an initial inspection.
Sec. 713.4 Initial and 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 above the
applicable threshold quantity, and also exported from or imported to
the plant site that same Schedule 2 chemical above the applicable
threshold quantity, must submit export and import information as part
of its declaration.
Note to paragraph (a)(1): 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
quantity and also report exports or imports of different Schedule 2
chemicals that it did not produce, process or consume above the
applicable threshold quantities.
(2) Reports. A declared plant site that does not meet the
description of paragraph (a)(1) of this section, and an undeclared
plant site or a trading company or any other person subject to the CWCR
must submit a report if it exported or imported a Schedule 2 chemical
above the applicable threshold quantity.
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
[[Page 73775]]
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);
(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 a
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 the Schedule 2 chemical in the mixture is 30% or more
by volume or by weight, whichever yields the lesser percent.
Note 1 to paragraph (b)(2). See Sec. 713.3(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 the Department
of Commerce (see Secs. 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).
(c) Declaration and report requirements. (1) Initial declaration. A
plant site described in paragrpah (a)(1) of this section that has an
initial declaration requirement for production, processing, or
consumption of a Schedule 2 chemical must also declare the export or
import of that same Schedule 2 chemical if the amount exported or
imported in 1994, 1995 or 1996 exceeded the applicable threshold
quantity set forth in paragraph (b)(1)(i) through (iii) of this
section. For the initial declaration, the plant site must only declare
the export or import information for any of the calendar years (1994,
1995 and/or 1996) in which the export or import exceeded the applicable
threshold quantity.
(2) Initial report on exports and imports. Declared plant sites
described in paragraph (a)(2) of this section, undeclared plant sites,
trading companies or any other person subject to the CWCR that exported
or imported a Schedule 2 chemical in 1996 in excess of the applicable
threshold quantity set forth in paragraph (b) of this section, must
submit an initial report on exports or imports for calendar year 1996.
(3) 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, beginning in 1997, must also declare the export
and/or import of that same Schedule 2 chemical if the amount exceeded
the applicable threshold quantity set forth in paragraph (b). The plant
site must declare the export or import information for that same
Schedule 2 chemical as part of its annual declaration of past
activities.
(4) Annual report on exports and imports. Declared plant sites
described in paragraph (a)(2), and undeclared plant sites, trading
companies or any other person subject to the CWCR that exported or
imported a Schedule 2 chemical in a previous calendar year, beginning
in 1997, in excess of the applicable threshold quantity set forth in
paragraphs (b)(1) (i) through (iii) must submit an annual report on
exports or imports.
(d) Types of declaration and report forms to be used. (1) Initial
declaration. If you are a declared Schedule 2 plant site as described
in paragraph (a)(1), you must complete Form 2-3B in addition to the
forms required by Sec. 713.3(b)(1). You must complete the forms for
each declared Schedule 2 chemical and for each of the calendar years
1994, 1995, and 1996, in which the export or import exceeded the
applicable threshold quantity.
(2) Initial report on exports and imports. (i) If you are a
declared plant site as described in paragraph (a)(2), you may fulfill
your reporting requirements by:
(A) Submitting, along with your initial declaration, a Form 2-3B
for each Schedule 2 chemical you exported or imported above the
applicable threshold quantity. Attach Form A, as appropriate; Form B is
optional.
(B) Submitting, separately from your initial declaration, a
Certification Form, Form 2-1, and Form 2-3B for each Schedule 2
chemical you exported or imported above the applicable threshold
quantity. Attach Form A, as appropriate; Form B is optional.
(ii) If you are an undeclared plant site or trading company, 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 quantity. Attach Form A, as appropriate; Form B is optional.
(3) Annual declaration on past activities. If you are a declared
Schedule 2 plant site as described in paragraph (a)(1), you must
complete Form 2-3B, in addition to the forms required by
Sec. 713.3(b)(2), for each declared Schedule 2 chemical exported or
imported above the applicable threshold quantity in the previous
calendar year.
(4) Annual report on exports and imports. (i) If you are a declared
plant site as described in paragraph (a)(2), you may fulfill your
annual reporting requirements by:
(A) Submitting, along with your annual declaration on past
activities, a Form 2-3B for each Schedule 2 chemical you exported or
imported above the applicable threshold quantity. Attach Form A, as
appropriate; Form B is optional.
(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 quantity. 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 quantity. 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 quantity of a Schedule 2 chemical,
you must declare or report all exports and imports by destination, and
indicate the total amount exported to or imported from each
destination. Only indicate the total annual quantity exported to or
imported from a specific destination if the total annual quantity to or
from that destination is more than 1% of the applicable threshold
(i.e., more than 10 grams of BZ, 1 kilogram of PFIB and
[[Page 73776]]
Amiton and corresponding alkylated or protonated salts, or 10 kilograms
of all other Schedule 2 chemicals). However, in determining whether
your total exports and imports worldwide for the year in question
trigger a declaration or report requirement, you must include all
exports and imports, including exports and imports falling within the
1% exemption in your calculation.
(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 destination and then
round as follows: for the chemical BZ, the total quantity for each
destination 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 should be reported
to the nearest 1 kilogram; and for all other Schedule 2 chemicals, the
total quantity for each destination should be reported to the nearest
10 kilograms.
Sec. 713.5. 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
BXA if:
(i) You plan that a previously undeclared plant on your plant site
under Sec. 713.3(a)(1)(iii) 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. 713.3(a)(1)(iii) 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. 713.3(a)(1)(iii);
(iv) You plan to increase the production, processing, or
consumption of a Schedule 2 chemical by a plant declared under
Sec. 713.3(a)(1)(iii) from the amount exceeding the applicable
declaration threshold to an amount exceeding the applicable inspection
threshold (see Sec. 716.1(b)(2));
(v) You plan to change the starting or ending date of anticipated
production, processing, or consumption declared under
Sec. 713.3(a)(1)(iii) 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. 713.3(a)(1)(iii).
(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 should also
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 plant site's status relating to exports of the
chemical or the addition of new countries for export (not to exceed 10
countries).
(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 BXA at least 15 days prior
to beginning the additional activity.
Sec. 713.6 Frequency and timing of declarations and reports.
Declarations and reports required under this part must be
postmarked by the appropriate date identified in Table 1 of this
section. Required declarations and reports include:
(a) Declaration on past production of Schedule 2 chemicals for
chemical weapons (CW) purposes since January 1, 1946;
(b) Initial declaration (production, processing, consumption,
export, or import of Schedule 2 chemicals during calendar years 1994,
1995, and 1996);
(c) Initial report on exports and imports from trading companies,
plant sites and other persons (during calendar year 1996);
(d) Annual declaration on past activities (production, processing,
consumption, export or import of Schedule 2 chemicals during the
previous calendar year, beginning with 1997);
(e) Annual report on exports and imports from trading companies,
plant sites and other persons (during the previous calendar year,
beginning with 1997); and
(f) Annual declaration on anticipated activities (production,
processing or consumption during the next calendar year, beginning in
calendar year 2000 for activities anticipated for calendar year 2001).
Table 1 to Sec. 713.6.--Deadlines for Submission of Schedule 2
Declarations
------------------------------------------------------------------------
Declarations Applicable forms Due dates
------------------------------------------------------------------------
Initial Declaration (for Certification, 2-1, March 30, 2000.
calendar years 1994, 1995, 2-2, 2-3, 2-3A, 2-
and 1996)--Declared plant 3B (if also
site (production, exported or
processing, consumption, imported), A (as
exports and imports). appropriate), B
(optional).
Initial Report on Exports Certification, 2-1, March 30, 2000.
and Imports (for calendar 2-3B, A (as
year 1996)--Plant site, appropriate), B
trading company, other (optional).
persons.
Annual Declaration on Past Certification , 2-1, For 1997, 1998, and
Activities (previous 2-2, 2-3 2-3A, 2-3B 1999. Thereafter,
calendar year, starting (if also exported February 28, March
with 1997)--Declared plant or imported), A (as 30, 2000.
site (production, appropriate), B
processing, consumption, (optional).
exports and imports).
Annual Report on Exports and Certification, 2-1, For 1997, 1998, and
Imports (previous calendar 2-3B, A (as 1999. Thereafter,
year, starting with 1997)-- appropriate), B February 28, March
Plant site, trading (optional). 30, 2000.
company, other persons.
[[Page 73777]]
Annual Declaration on Certification, 2-1, September 3 of each
Anticipated Activities 2-2, 2-3, 2-3A, 2- year prior to the
(next calendar year). 3C, A (as calendar year in
appropriate), B which anticipated
(optional). activities will
take place,
beginning in
calendar year 2000.
Declaration on Additionally Certification, 2-1, 15 calendar days
Planned Activities-- 2-3C, A (as before the
(production, processing and appropriate), B additionally
consumption). (optional). planned activity
begins.
Declaration on Past Certification, 2-1, March 30, 2000.
Production of Schedule 2 2-2, 2-4 A (as
Chemicals for CW Purposes. appropriate), B
(optional).
------------------------------------------------------------------------
Sec. 713.7 Amended declaration or report.
(a) You must submit an amended declaration or report for changes to
previously submitted information on chemicals, activities and end-use
purposes or the addition of new chemicals, activities and end-use
purposes.
(b) For declared plant sites subject to inspection, changes that
may affect verification activities, such as changes of owner or
operator, company name, address, or inspection point of contact require
an amended declaration.
(c) For declared plant sites not subject to inspection, undeclared
plant sites, trading companies, and other persons, changes that do not
directly affect the purpose of the Convention, such as changes to a
company name, address, declaration point of contact, or non-substantive
typographical errors, do not require submission of an amended
declaration or report and may be corrected in subsequent declarations
or reports.
(d) If you are required to submit an amended declaration or report
pursuant to paragraph (a) or (b) of this section, you must complete and
submit a new Certification Form and the specific form(s) being amended
(e.g., annual declaration on past activities). Only complete that
portion of each form that corrects the previously submitted
information.
Supplement No. 1 to Part 713.--Schedule 2 Chemicals
------------------------------------------------------------------------
------------------------------------------------------------------------
A. Toxic chemicals:
(1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] (78-53-5)
phosphorothiolate and corresponding alkylated or
protonated salts.................................
(2) PFIB: 1,1,3,3,3-Pentafluoro-2- (382-21-8)
(trifluoromethyl)-1-propene......................
(3) BZ: 3-Quinuclidinyl benzilate................. (6581-06-2)
B. Precursors:
(4) Chemicals, except for those listed in Schedule (676-97-1)
1, containing a phosphorus atom to which is
bonded one methyl, ethyl or propyl (normal or
iso) group but not further carbon atoms, e.g.
Methylphosphonyl dichloride......................
Dimethyl methylphosphonate........................ (756-79-6)
Exemption: Fonofos: O-Ethyl S-phenyl (944-22-9)
ethylphosphono-thiolothionate....................
(5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidic dihalides
(6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl
(Me, Et, n-Pr or i-Pr)-phosphoramidates
(7) Arsenic trichloride........................... (7784-34-1)
(8) 2,2-Diphenyl-2-hydroxyacetic acid............. (76-93-7)
(9) Quinuclidine-3-ol............................. (1619-34-7)
(10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-
2-chlorides and corresponding protonated salts
(11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
aminoethane-2-ols and corresponding protonated
salts
Exemptions: N,N-Dimethylaminoethanol and (108-01-0)
corresponding protonated salts...................
N,N-Diethylaminoethanol and corresponding (100-37-8)
protonated salts.................................
(12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
aminoethane-2-thiols and corresponding protonated
salts
(13) Thiodiglycol: Bis(2-hydroxyethyl) sulfide.... (111-48-8)
(14) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol... (464-07-3)
------------------------------------------------------------------------
PART 714--ACTIVITIES INVOLVING SCHEDULE 3 CHEMICALS
Sec.
714.1 Declaration on past production of Schedule 3 chemicals for
chemical weapons purposes.
714.2 Initial and annual declaration requirements for plant sites
that produce a Schedule 3 chemical in excess of 30 metric tons.
714.3 Initial and annual reporting requirements for exports and
imports of Schedule 3 chemicals.
714.4 Advance declaration requirements for additionally planned
production of a Schedule 3 chemical.
714.5 Frequency and timing of declarations.
714.6 Amended declaration or report.
Supplement No. 1 to Part 714--Schedule 3 Chemicals
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703.
Sec. 714.1 Declaration on past production of Schedule 3 chemicals for
chemical weapons purposes.
(a) See Sec. 711.6 of this subchapter for information on obtaining
the forms you will need to declare and report activities involving
Schedule 3 chemicals.
(b) You must complete the Certification Form, Forms 3-1, 3-2, 3-4,
Form A if you produced at one or more plants on your plant site any
quantity of a Schedule 3 chemical at any time since January 1, 1946,
for chemical weapons purposes. Form B is optional. You must declare the
total quantity of such chemical produced, rounded to the nearest tenth
of a metric ton (or 100 kilograms). You are not subject to routine
inspection unless you are a declared facility pursuant to Sec. 714.2.
Sec. 714.2 Initial and annual declaration requirements for plant sites
that produce a Schedule 3 chemical in excess of 30 metric tons.
(a) Declaration of production of Schedule 3 chemicals for purposes
not prohibited by the CWC. (1) Production quantities that trigger the
declaration requirement. You must complete the appropriate forms
specified in paragraph (b) of this section if you have
[[Page 73778]]
produced or anticipate producing a Schedule 3 chemical as follows:
(i) Initial declaration. You produced at one or more plants on your
plant site in excess of 30 metric tons of any single Schedule 3
chemical during calendar year 1996.
(ii) 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, beginning
with 1997.
(iii) 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) Mixtures containing a Schedule 3 chemical. (i) The quantity of
a Schedule 3 chemical contained in a mixture must be counted for
declaration purposes 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.
(ii) Counting the amount of the 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) Initial declaration.
You must complete the Certification Form and Forms 3-1, 3-2, 3-3, and
Form A if you produced at one or more plants on your plant site in
excess of 30 metric tons of any single Schedule 3 chemical during
calendar year 1996. Form B is optional.
(2) 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, beginning
with production during calendar year 1997. Form B is optional.
(3) 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. 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 sites. A plant site that
comprises at least one plant that produced in excess of 30 metric tons
of a Schedule 3 chemical during the previous calendar year, or that you
anticipate will produce more than 30 metric tons of a Schedule 3
chemical in the next calendar year, is a ``declared'' Schedule 3 plant
site. A plant site that submitted an initial declaration for 1996 and/
or annual declaration on past activities for 1997 or 1998 is a
``declared'' Schedule 3 plant site for the years declared.
(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 this subchapter) if the declared plants on your plant site produced
during the previous calendar year or you anticipate they will produce
during the next calendar year in excess of 200 metric tons aggregate of
any Schedule 3 chemical. A plant site that submitted an initial
declaration for 1996 and/or an annual declaration on past activities
for 1997 or 1998, and exceeded the inspection threshold, is also
subject to a routine inspection.
Sec. 714.3 Initial and annual report requirements for exports and
imports of Schedule 3 chemicals.
(a) Any person subject to the CWCR that exported from or imported
to the United States a Schedule 3 chemical in excess of 30 metric tons
in any calendar year, beginning with calendar year 1996, has a
reporting requirement under this section.
(1) Initial report on exports and imports. Declared plant sites,
undeclared plant sites, trading companies, and any other person subject
to the CWCR that exported from or imported to the United States in
excess of 30 metric tons of a Schedule 3 chemical in calendar year 1996
must submit an initial report on exports and imports.
(2) Annual report on exports and imports. Declared plant sites,
undeclared plant sites, trading companies, and any other person subject
to the CWCR that exported from or imported to the United States in
excess of 30 metric tons of a Schedule 3 chemical in a previous
calendar year, beginning with calendar year 1997, must submit an annual
report on exports and imports.
Note 1 to paragraphs (a)(1) and (a)(2). 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 paragraphs (a)(1) and (a)(2): 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.
(3) 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)(3). 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 the Department of Commerce
(see Secs. 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 C.F.R. 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 or imported that same Schedule 3 chemical in excess
of 30 metric tons, you may report the export or import by:
(A) Completing question 3-3.3 on Form 3-3 on your declaration for
that same Schedule 3 chemical to be reported; or
(B) Submitting, separately from your declaration, a Certification
Form, Form 3-1, and a Form 3-3 for each Schedule
[[Page 73779]]
3 chemical to be reported, completing only question 3-3.3. Attach Form
A, as appropriate; Form B is optional.
(ii) If your plant site declared production of a Schedule 3
chemical and exported or imported a different Schedule 3 chemical in
excess of 30 metric tons, you may report the export or import by:
(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 or 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 destination,
and indicate the total amount exported to or imported from each
destination. Only indicate the total annual quantity exported to or
imported from a specific destination if the total annual quantity to or
from that destination is more than 1% of the applicable threshold
(i.e., more than 0.3 metric tons). However, in determining whether your
total exports and imports worldwide for the year in question trigger a
report requirement, you must include all exports and imports, including
exports and imports falling within the 1% exemption in your
calculation.
(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 destination and then round to the
nearest 0.1 metric tons.
Note to Sec. 714.3: 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. 714.3. 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. 714.4 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 BXA if:
(i) You plan that a previously undeclared plant on your plant site
under Sec. 714.2(a)(1)(iii) will produce a Schedule 3 chemical above
the declaration threshold;
(ii) You plan to produce at a plant declared under
Sec. 714.2(a)(1)(iii) 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)); 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. 714.2(a)(1)(iii).
(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 should also
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 BXA at least 15 days in
advance of the beginning of the additional or new activity.
Sec. 714.5 Frequency and timing of declarations.
Declarations and reports required under this part must be
postmarked by the appropriate date identified in Table 1 of this
section. Required declarations and reports include:
(a) Declaration on past production of any amount of Schedule 3
chemicals for chemical weapons (CW) purposes since January 1, 1946;
(b) Initial declaration (production of Schedule 3 chemicals during
calendar year 1996);
(c) Initial report on exports and imports from trading companies,
plant sites and other persons (during calendar year 1996);
(d) Annual declaration on past activities (production of Schedule 3
chemicals during the previous calendar year, beginning with 1997);
(e) Annual report on exports and imports from trading companies,
plant sites and other persons (during the previous calendar year,
beginning with 1997); and
(f) Annual declaration on anticipated activities (production during
the next calendar year, beginning in calendar year 2000 for activities
anticipated for calendar year 2001).
Table 1 to Sec. 714.5--Deadlines for Submission of Schedule 3 Declarations
----------------------------------------------------------------------------------------------------------------
Declarations Applicable forms Due dates
----------------------------------------------------------------------------------------------------------------
Initial Declaration (for calendar year 1996)-- Certification, 3-1, 3-2, 3-3 March 30, 2000.
Declared plant site (production). (if also exported or
imported), A (as
appropriate), B (optional).
Initial Report on Exports and Imports (for Certification, 3-1, 3-3.3 and March 30, 2000.
calendar year 1996)--Plant site, trading company, 3-3.4, A (as appropriate), B
other persons. (optional).
Annual Declaration on Past Activities (previous Certification, 3-1, 3-2, 3-3 For 1997, 1998, and 1999,
calendar year, starting with 1997)--Declared (if also exported or March 30, 2000. Thereafter,
plant site (production). imported), A (as February 28.
appropriate), B (optional).
[[Page 73780]]
Annual Report on Exports and Imports (previous Certification, 3-1, 3-3.3 and For 1997, 1998, and 1999,
calendar year, starting with 1997)--Plant site, 3-3.4, A (as appropriate), B March 30, 2000. Thereafter,
trading company, other persons. (optional). February 28.
Annual Declaration on Anticipated Activities Certification, 3-1, 3-3.1 and September 3 of each year
(Production) (next calendar year). 3-3.2, A (as appropriate), B prior to the calendar year
(optional). in which anticipated
activities will take place,
beginning in calendar year
2000.
Declaration on Additionally Planned Activities.... Certification, 3-1, 3-3.1 and 15 calendar days before the
3-3.2, A (as appropriate), B additionally planned
(optional). activity begins.
Declaration on Past Production of Schedule 3 Certification, 3-1, 3-2, 3-4, March 30, 2000.
Chemicals for CW Purposes. A (as appropriate), B
(optional).
----------------------------------------------------------------------------------------------------------------
Sec. 714.6 Amended declaration or report.
(a) You must submit an amended declaration or report for changes to
previously submitted information on chemicals, activities and end-use
purposes or the addition of new chemicals, activities and end-use
purposes.
(b) For declared plant sites subject to inspection, changes that
may affect verification activities, such as changes of owner or
operator, company name, address, or inspection point of contact,
require an amended declaration.
(c) For declared plant sites not subject to inspection, undeclared
plant sites, trading companies, and other persons, changes that do not
directly affect the purpose of the Convention, such as changes to a
company name, address, declaration point of contact, or non-substantive
typographical errors, do not require submission of an amended
declaration or report and may be corrected in subsequent declarations
or reports.
(d) If you are required to submit an amended declaration or report
pursuant to paragraph (a) or (b) of this section, you must complete and
submit a new Certification Form and the specific form(s) being amended
(e.g., annual declaration on past activities). Only complete that
portion of each form that corrects the previously submitted
information.
Supplement No. 1 to Part 714--Schedule 3 Chemicals
------------------------------------------------------------------------
------------------------------------------------------------------------
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), ECCN
1C355, Related Controls for chemicals controlled under the
International Traffic in Arms Regulations (22 CFR parts 120 through
130).
PART 715--ACTIVITIES INVOLVING UNSCHEDULED DISCRETE ORGANIC
CHEMICALS (UDOCs)
Sec.
715.1 Initial and annual declaration requirements for production by
synthesis of unscheduled discrete organic chemicals (UDOCs).
715.2 Frequency and timing of declarations.
715.3 Amended declaration.
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
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703.
Sec. 715.1 Initial and annual declaration requirements for production
by synthesis of unscheduled discrete organic chemicals (UDOCs).
(a) See Sec. 711.6 of this subchapter for information on obtaining
the forms you will need to declare production of unscheduled discrete
organic chemicals. Declaration of production by synthesis of UDOCs for
purposes not prohibited by the CWC. (1) Production quantities that
trigger the declaration requirement. 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'') in calendar year
[[Page 73781]]
1996 (for the initial declaration) or the previous calendar year
beginning with 1997 (for an annual declaration); or
(ii) In excess of 30 metric tons of an individual PSF-chemical at
one or more plants in calendar year 1996 (for the initial declaration)
or in the previous calendar year beginning with 1997 (for an annual
declaration).
(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 which are formed by the chemical reaction of
monomeric or polymeric substances;
(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) Initial declaration.
You must complete the Certification Form and Form UDOC (consisting of
two pages). Attach Form A as appropriate; Form B is optional.
(2) Annual declaration on past activities. You must complete the
Certification Form and Form UDOC (consisting of two pages). Attach Form
A as appropriate; Form B is optional.
(c) ``Declared'' UDOC plant sites. A plant site that produced by
synthesis in excess of 200 metric tons aggregate of all UDOCs
(including all PSF-chemicals), or that comprises at least one plant
that produced by synthesis in excess of 30 metric tons of an individual
PSF-chemical during the previous year, is a ``declared'' UDOC plant
site. A plant site that submitted an initial declaration for 1996 and/
or annual declaration on past activities for 1997 or 1998 is a
``declared'' UDOC plant site for the years declared.
(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
this subchapter) if it produced by synthesis during the previous
calendar year more than 200 metric tons aggregate of UDOCs. A plant
site that submitted an initial declaration for 1996 and/or annual
declaration on past activities for 1997 or 1998, and exceeded the
inspection threshold, is also subject to a routine inspection.
Sec. 715.2 Frequency and timing of declarations.
Declarations required under this part must be postmarked by the
appropriate dates identified in Table 1 of this section. Required
declarations include:
(a) Initial declaration (production during calendar year 1996).
(b) Annual declaration on past activities (production during the
previous calendar year, beginning with 1997).
Table 1 to Sec. 715.2--Deadlines for Submission of Declarations for Unscheduled Discrete Organic Chemical
(UDOC) Facilities
----------------------------------------------------------------------------------------------------------------
Declarations Applicable forms Due dates
----------------------------------------------------------------------------------------------------------------
Initial Declaration (calendar year 1996)--Declared Certification, UDOC, A (as March 30, 2000.
plant site. appropriate), B (optional).
Annual Declaration on Past Activities (previous Certification, UDOC, A (as For 1997, 1998, and 1999
calendar year, starting with 1997)--Declared appropriate), B (optional). March 30, 2000. Thereafter,
plant site. February 28.
----------------------------------------------------------------------------------------------------------------
Sec. 715.3 Amended declaration.
(a) Amended declarations are required to correct certain
inaccuracies in a previously submitted declaration. These amended
declarations are necessary to change a production range above the
amount originally declared, or the production of a PSF-chemical above
30 metric tons by a plant not previously counted as a PSF-plant.
(b) Changes that do not directly affect the purpose of the
Convention, such as changes to a company name, address, point of
contact, or non-substantive typographical errors, do not require
submission of an amended declaration and may be corrected in subsequent
declarations.
(c) If you are required to submit an amended declaration pursuant
to paragraph (a) of this section, you must complete and submit a new
Certification Form and the specific form(s) being amended (e.g., annual
declaration on past activities). Only complete that portion of each
form that amends the previously submitted information.
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
CxOy, where x and y denote integers. The two
most common carbon oxides are carbon monoxide (CO) and carbon
dioxide (CO2). Carbon sulfides consist of chemical
compounds that contain only the elements carbon and sulfur, and have
the chemical formula CaSb, where a and b
denote integers. The most common carbon sulfide is carbon disulfide
(CS2). Metal carbonates consist of chemical compounds
that contain a metal
[[Page 73782]]
(i.e., the Group I Alkalis, Groups II Alkaline Earths, the
Transition Metals, or the elements aluminum, gallium, indium,
thallium, tin, lead, bismuth or polonium), and the elements carbon
and oxygen. Metal carbonates have the chemical formula
Md(CO3)e, where d and e denote
integers and M represents a metal. Common metal carbonates are
sodium carbonate (Na2CO3) and calcium
carbonate (CaCO3). In addition, metal carbides or other
compounds consisting of only a metal, as described above, and carbon
(e.g., calcium carbide (CaC2)), are exempt from
declaration requirements (see Sec. 715.1(a)(2)(ii)(D) of this part).
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) Intermediate UDOCs 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 # 98-86-2);
(ii) 6-Chloro-2-methyl aniline (CAS # 87-63-8);
(iii) 2-Amino-3-hydroxybenzoic acid (CAS # 548-93-6); and
(iv) Acetone (CAS # 67-64-1).
(3) Examples of activities that are not considered production by
synthesis under part 715 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.
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.
Supplement No. 1 to Part 716--Notification, Duration, and Frequency of
Inspections
Supplement No. 2 to Part 716--Schedule 1 Model Facility Agreement
Supplement No. 3 to Part 716--Schedule 2 Model Facility Agreement
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703.
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 inspectors employed by the Organization for the Prohibition of
Chemical Weapons (OPCW) to ensure that activities are consistent with
obligations under the Convention. The Department of Commerce 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 this subchapter, your facility is subject to an initial
inspection within 200 days of submitting an initial declaration.
(iii) If your declared facility submitted an annual declaration on
past activities for calendar year 1997 or 1998, you are subject to an
initial inspection.
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) If your declared plant site submitted an initial declaration
for calendar years 1994, 1995 and 1996, and at least one plant on your
plant site produced a Schedule 2 chemical during any one of those three
years in excess of the applicable inspection threshold quantity set
forth in paragraphs (b)(2)(i)(A) through (C) of this section, you are
subject to an initial inspection.
Note to paragraph (b)(2): The applicable inspection threshold
quantity for Schedule 2 plant sites is ten times higher than the
applicable declaration threshold quantity. Only declared plant
sites, comprising at least one declared plant that exceeds the
applicable inspection threshold quantity, are subject to inspection.
(3) Schedule 3 plant sites. (i) 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 will produce in the next
calendar year, in excess of 200 metric tons aggregate of any Schedule 3
chemical (see Supplement No. 1 to part 714 of this subchapter).
(ii) If your declared plant site submitted an initial declaration
for calendar year 1996 and/or annual declaration on past activities for
calendar year 1997 or 1998, and exceeded the inspection threshold set
forth in paragraph (b)(3)(i) of this
[[Page 73783]]
section, you are subject to a routine inspection.
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. (i) Your
declared plant site is subject to inspection if it produced by
synthesis more than 200 metric tons aggregate of unscheduled discrete
organic chemicals during the previous calendar year.
(ii) If your declared plant site submitted an initial declaration
for calendar year 1996 and/or annual declaration on past activities for
calendar year 1997 or 1998, and exceeded the inspection threshold set
forth in paragraph (b)(4)(i) of this section, you are subject to a
routine inspection.
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)(i) of this subchapter 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 this subchapter under this
part, the Department of Commerce will: lead on-site inspections;
provide Host Team notification to the facility of an impending
inspection; take appropriate action to obtain an administrative warrant
in the event the facility does not consent to the inspection; 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; escort the
Inspection Team on-site throughout the inspection process; assist the
Inspection Team with verification activities; negotiate the development
of a site-specific facility agreement, if appropriate, during an
initial inspection of a facility (see Sec. 716.6); and 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. 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.
(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, except if in accordance with the provisions of the
Convention;
(B) Consistency with declarations of levels of production,
processing or consumption of Schedule 2 chemicals; and
(C) That Schedule 2 chemicals are not diverted to activities
prohibited under the Convention.
(ii) During initial inspections, inspectors 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
inspectors 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 Chemicals plant sites. Declared
unscheduled discrete organic chemical (UDOC) plant sites will be
subject to inspection beginning April 29, 2000.
(1) Purposes of inspections. The general aim of inspections of
declared UDOC plant sites is to verify that activities are consistent
with the
[[Page 73784]]
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, the Department of Commerce intends to 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,
inspectors will receive a pre-inspection briefing from facility
representatives; 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;
examine relevant records; and 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 (USNA) 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. 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.
(c) Pre-inspection briefing. Upon arrival at the inspection site
and before commencement of the inspection, facility representatives
will provide to the Inspection Team and Host Team a pre-inspection
briefing on the facility, the activities carried out there, safety
measures, and administrative and logistical arrangements necessary for
the inspection, which may be aided with the use of maps and other
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) Plant site safety and alarms;
(ii) Activities, business and manufacturing operations;
(iii) Physical layout;
(iv) Delimitation of declared facility;
(v) Scheduled chemicals/chemistries (declared and undeclared);
(vi) Process flow;
(vii) Units specific to declared operations; and
(viii) Administrative and logistic information.
(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) Data declaration updates/revisions;
(vi) Draft facility agreement, if applicable; and
(vii) Proposed inspection plan.
(d) Visual plant inspection. The Inspection Team may visually
inspect the declared plant or facility and other areas of the plant
site or facility as agreed by the Host Team Leader after consulting
with the facility representative.
(e) Records review. The facility must have available for the
Inspection Team to review, on the inspection site, access to all
supporting materials and documentation used by the facility to prepare
declarations and to comply with the CWCR (see Secs. 721.1 and 721.2 of
this subchapter). Such access may be to paper copies or via electronic
remote access by computer during the inspection period or as otherwise
agreed upon by the Inspection Team and Host Team Leader.
(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 factual 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 comment on
the preliminary findings to the Inspection Team. This meeting will be
completed not later than 24 hours after the completion of the
inspection.
[[Page 73785]]
Sec. 716.5 Notification, duration and frequency of inspections.
(a) 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.
The Department of Commerce will also provide a separate Host Team
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, the Department of Commerce, or if the Department of Commerce is
unable, the Federal Bureau of Investigation, 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 inspectors.
(ii) In addition to appropriate information provided by the OPCW in
its notification to the USNA, the Department of Commerce's Host Team
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
Host Team notification, BXA intends to 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 (i)Acknowledge
inspection. Authority transmits receipt of fax.
actual written notice
and inspection
authorization to the
owner and operator,
occupant, or agent in
charge via facsimile
within 6 hours.
(2) Upon notification (i) Indicates
from the U.S. whether it
National Authority, grants consent.
BXA immediately (ii) May request
transmits Host Team advance team
notification via support. No
facsimile to the requirement for
inspection point of reimbursement
contact to ascertain of U.S.
whether the facility Government's
(1) grants consent services.
and (2) requests
assistance in
preparing for the
inspection. In
absence of consent
within four hours of
transmission, BXA
intends to seek an
administrative
warrant.
(B) Preparation for inspection (1) BXA advance team (i) If advance
arrives in the team support is
vicinity of the provided,
facility to be facility works
inspected 1-2 days with the
after OPCW advance team on
notification for inspection-
logistical and related issues.
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. The Department
of Commerce 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. The Department
of Commerce 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 unscheduled discrete organic chemical plant
sites. For declared Schedule 3 and unscheduled discrete organic
chemical plant sites, the Technical Secretariat will notify the USNA of
an initial or 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. The Department of Commerce 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. 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 discrete organic chemical plant sites. For
declared
[[Page 73786]]
Schedule 3 or unscheduled discrete organic chemical plant sites, the
maximum duration of initial and 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 inspectors' 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 unscheduled discrete organic chemical plant sites in the United
States may not exceed 20 per calendar year.
(4) Unscheduled Discrete Organic Chemical 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 unscheduled discrete organic chemical
plant sites in the United States may not exceed 20 per calendar year.
Sec. 716.6 Facility agreements.
(a) Description and requirements. A facility agreement is a site-
specific agreement between the U.S. Government and the OPCW. Its
purpose is to define procedures for inspections of a specific declared
facility that is subject to inspection because of the type or amount of
chemicals it produces, processes or consumes.
(1) Schedule 1 facilities. The Convention requires that facility
agreements be concluded between the United States and the OPCW for all
declared Schedule 1 facilities.
(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 unscheduled discrete organic chemical plant
sites. If the owner, operator, occupant or agent in charge of a
declared Schedule 3 or unscheduled discrete organic chemical 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, the Department of Commerce 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
Department of Commerce representatives for the negotiation of such an
agreement. During the initial inspection of a declared facility, the
Inspection Team and the Host Team will negotiate a draft 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, BXA will consult with the
affected facility on the contents of the agreements and take facility
comments into consideration during negotiations. The Department of
Commerce 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. BXA 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 unscheduled
discrete organic chemical facilities are concluded, as appropriate,
with the OPCW in coordination with the Department of Commerce.
(c) Format and content. Schedule 1 and Schedule 2 model facility
agreements are included in Supplement No. 2 and Supplement No. 3 to
this part. These model facility agreements implement the general
provisions of the Convention pertaining to inspections, including
health and safety procedures, confidentiality of information, media and
public relations, information about the facility, inspection equipment,
pre-inspection activities, conduct of the inspection (including access
to and inspection of areas, buildings and structures, access to and
inspection of records and documentation, arrangements for interviews of
facility personnel, photographs, sampling, and measurements), and
logistical arrangements for the inspectors, such as communications and
lodging. Attachments to the facility agreements will provide site-
specific information such as working hours, special safety and health
procedures, as well as site-specific agreements as to documents and
records to be provided, specific areas of a facility to be inspected,
site diagrams, sampling, photography, interview procedures, use of
inspection equipment, procedures for protection of confidential
business information, and administrative arrangements.
(d) Further information. For further information about facility
agreements, please write or call: Inspection Management Team, Bureau of
Export Administration, U.S. Department of Commerce, 14th Street and
Pennsylvania Avenue, N.W., Room 6087B, Washington, D.C. 20230-0001,
Telephone: (202) 482-6114.
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.
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
[[Page 73787]]
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 this subchapter during a given
calendar year must report to BXA 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 BXA on company letterhead at the
address given in Sec. 716.6(d), with the following notation: ``Attn:
Report of inspection-related costs.''
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 24 hours prior to 48 hours prior to 120 hours prior to 120 hours prior to
inspection to USNA. arrival at the arrival at the arrival at the arrival at the
point of entry. plant site. plant site. plant site.
Duration of inspection.......... As specified in 96 hours.......... 24 hours.......... 24 hours.
facility
agreement.
Maximum number of inspections... Determined by OPCW 2 per calendar 2 per calendar 2 per calendar
based on year per plant year per plant year per plant
characteristics site. site. site.
of facility and
the nature of the
activities
carried out at
the facility.
-------------------------------------------------------------------------------
Notification of challenge 12 hours prior to arrival of inspection team at the point of entry.
inspection to USNA*.
-------------------------------------------------------------------------------
Duration of Challenge 84 hours.
inspection*.
----------------------------------------------------------------------------------------------------------------
*See part 717 of this subchapter.
Supplement No. 2 to Part 716--Schedule 1 Model Facility Agreement
Draft Model Agreement specifying the general form and content
for facility agreements to be concluded pursuant to Verification
Annex, Part VI, paragraph 31 (other facilities).
Facility Agreement between the Organization for the Prohibition
of Chemical Weapons and the Government of the United States of
America Regarding On-site Inspections at the ______ Facility Located
at the __________.
The Organization for the Prohibition of Chemical Weapons,
hereinafter referred to as ``Organization'', and the Government of
the United States of America, hereinafter referred to as ``inspected
State Party'', both constituting the Parties to this Agreement, have
agreed on the following arrangements in relation to the conduct of
inspections pursuant to paragraph 3 of Article VI of the Convention
on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on Their Destruction, hereinafter
referred to as ``Convention'', at ______ (insert name of the
facility, its precise location, including the address), declared
under paragraphs 7 and 8 of Article VI, hereinafter referred to as
``facility''.
Section 1. General Provisions
1. The purpose of this Agreement is to facilitate the
implementation of the provisions of the Convention in relation to
inspections conducted at the facility pursuant to paragraph 3 of
Article VI of the Convention and in accordance with the obligations
of the inspected State Party and the Organization under the
Convention.
2. Nothing in this Agreement shall be applied or interpreted in
a way that is contradictory to the provisions of the Convention,
including paragraph 1 of Article VII.1 In case of
inconsistency between this Agreement and the Convention, the
Convention shall prevail.
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\1\ Each State Party shall, in accordance with its
constitutional processes, adopt the necessary measures to implement
its obligations under this Convention.
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3. The Parties have agreed to apply for planning purposes the
general factors contained in Attachment 1.
4. The frequency and intensity of inspections at the facility
are given in Part B of Attachment 1 and reflect the risk assessment
of the Organization conducted pursuant to paragraphs 23 or 30 of
Part VI of the Verification Annex, whichever applies.
5. The inspection team shall consist of no more than ____
persons.
6. The language for communication between the inspection team
and the inspected State Party during inspections shall be English.
7. In case of any development due to circumstances brought about
by unforeseen events or acts of nature, which could affect
inspection activities at the facility, the inspected State Party
shall notify the Organization and the inspection team as soon as
practically possible.
8. In case of need for the urgent departure, emergency
evacuation or urgent travel of inspector(s) from the territory of
the inspected State Party, the inspection team leader shall inform
the inspected State Party of such a need. The inspected State Party
shall arrange without undue delay such departure, evacuation or
travel. In all cases, the inspected State Party shall determine the
means of transportation and routes to be taken. The costs of such
departure, evacuation or travel of inspectors shall be borne by the
Organization.
9. Inspectors shall wear identification badges at all times when
on the premises of the facility.
Section 2. Health and Safety
1. Health and safety matters during inspections are governed by
the Convention, the Organization's Health and Safety Policy and
Regulations, and applicable national, local and facility safety and
environmental regulations. The specific arrangements for
implementing the relevant provisions of the Convention and the
Organization's Health and Safety Policy in relation to inspections
at the facility are contained in Attachment 2.
2. Pursuant to paragraph 1 of this section, all applicable
health and safety regulations relevant to the conduct of the
inspection at the facility are listed in Attachment 2 and shall be
made available for use by the inspection team at the facility.
3. In case of the need to modify any health-and safety-related
arrangements at the facility contained in Attachment 2 to this
Agreement bearing on the conduct of inspections, the inspected State
Party shall notify the Organization. Any such modification shall
apply provisionally until the inspected State Party and the
Organization have reached agreement on this issue. In case no
agreement has been reached by the time of the completion of the
inspection, the relevant information may be included in the
preliminary factual findings. Any agreed modification shall be
recorded in Attachment 2 to this Agreement in accordance with
paragraph 2 of Section 13 of this Agreement.
[[Page 73788]]
4. In the course of the pre-inspection briefing the inspection
team shall be briefed by the representatives of the facility on all
health and safety matters which, in the view of those
representatives, are relevant to the conduct of the inspection at
the facility, including:
(a) The health and safety measures at the Schedule 1 facilities
to be inspected and the likely risks that may be encountered during
the inspection;
(b) Any additional health and safety measures or regulations
that need to be observed at the facility;
(c) Procedures to be followed in case of an accident or in case
of other emergencies, including a briefing on emergency signals,
routes and exits, and the location of emergency meeting points and
medical facilities; and
(d) Specific inspection activities which must be limited within
particular areas at the facility, and in particular within those
Schedule 1 facilities to be inspected under the inspection mandate,
for reasons of health and safety.
Upon request, the inspection team shall certify receipt of any
such information if it is provided in written form.
5. During the course of an inspection, the inspection team shall
refrain from any action which by its nature could endanger the
safety of the team, the facility, or its personnel or could cause
harm to the environment. Should the inspected State Party refuse
certain inspection activities, it may explain the circumstances and
safety considerations involved, and shall provide alternative means
for accomplishing the inspection activities.
6. In the case of emergency situations or accidents involving
inspection team members while at the facility, the inspection team
shall comply with the facility's emergency procedures and the
inspected State Party shall to the extent possible provide medical
and other assistance in a timely and effective manner with due
regard to the rules of medical ethics if medical assistance is
requested. Information on medical services and facilities to be used
for this purpose is contained in Part D of Attachment 2. If the
Organization undertakes other measures for medical support in regard
to inspection team members involved in emergency situations or
accidents, the inspected State Party will render assistance to such
measures to the extent possible. The Organization will be
responsible for the consequences of such measures.
7. The inspected State party shall, to the extent possible,
assist the Organization in carrying out any inquiry into an accident
or incident involving a member of the inspection team.
8. If, for health and safety reasons given by the inspected
State Party, health and safety equipment of the inspected State
Party is required to be used by the inspection team, the cost so
incurred shall be borne by the inspected State Party.
9. The inspection team may use its own approved health and
safety equipment. If the inspected State Party determines it to be
necessary, the inspected State Party shall conduct a fit test on
masks brought with the inspection team. If the inspected State Party
so requests on the basis of confirmed contamination or hazardous
waste requirements or regulations, any such piece of equipment
involved in the inspection activities will be left at the facility
at the end of the inspection. The inspection team reserves the right
to destroy equipment left at the facility or witness its destruction
by agreed procedures. The inspected State Party will reimburse the
Organization for the loss of the inspection team's equipment.
10. In accordance with the Organization's Health and Safety
Policy, the inspected State Party may provide available data based
on detection and monitoring, to the agreed extent necessary to
satisfy concerns that may exist regarding the health and safety of
the inspection team.
Section 3. Confidentiality
1. Matters related to confidentiality are governed by the
Convention, including its Confidentiality Annex and paragraph 1 of
Article VII, and the Organization's Policy on Confidentiality. The
specific arrangements for implementing the provisions of the
Convention and the Organization's Policy on Confidentiality in
relation to the protection of confidential information at the
facility are contained in Attachment 3.
2. Upon request, the inspected State Party will procure a
container to be placed under joint seal to maintain documents that
the inspection team, inspected State Party, or the facility
representative decides to keep as reference for future inspections.
The inspected State Party shall be reimbursed by the Organization
for the purchase of such container.
3. All documents, including photographs, provided to the
inspection team will be controlled as follows:
(a) Information to be taken off-site. Information relevant to
the finalization of the preliminary factual findings that the
inspected State Party permits the inspection team to take off-site
will be marked and numbered by the inspected State Party. In
accordance with the inspected State Party's Procedures for
Information Control, markings on the information will clearly state
that the inspection team may take it off-site and will contain a
classification pursuant to the Organization's Policy on
Confidentiality at a level requested by the inspected State Party.
The representative of the facility will acknowledge the release of
such information in writing prior to disclosure to the inspection
team.
(b) Information restricted for use on-site. Information that the
inspected State Party permits the inspection team to use on-site
during inspections but not take off-site will be marked and numbered
by the inspected State Party. In accordance with the inspected State
Party's Procedures for Information Control, markings on the
information will clearly restrict its use on-site and will contain a
classification pursuant to the Organization's Policy on
Confidentiality at a level requested by the inspected State Party.
The representative of the facility will acknowledge the release of
such information in writing prior to disclosure to the inspection
team. Upon conclusion of the inspection, the inspection team shall
return the information to the inspected State Party, and the
facility representative shall acknowledge receipt in writing. If so
requested by the inspection team, the information can be placed in
the joint sealed container for future reference.
(c) Information restricted for use on-site and requiring direct
supervision. Information that the inspected State Party permits the
inspection team to use on-site only under direct supervision of the
inspected State Party or the representative of the inspected
facility will be marked and numbered by the inspected State Party.
In accordance with the inspected State Party's Procedures for
Information Control, markings on the information will clearly
restrict its use on-site under direct supervision and will contain a
classification pursuant to the Organization's Policy on
Confidentiality at a level requested by the inspected State Party.
The representative of the facility will acknowledge the release of
such information in writing prior to disclosure to the inspection
team. The inspection team shall return the information to the
inspected State Party immediately upon completion of review and the
facility representative shall acknowledge receipt in writing. If so
requested by the inspection team, the information can be placed in
the joint sealed container for future reference.
Section 4. Media and Public Relations
1. Inspection team media and public relations are governed by
the Organization's Media and Public Relations Policy. The specific
arrangements for the inspection team's contacts with the media or
the public, if any, in relation to inspections of the facility are
contained in Attachment 4.
Section 5. Inspection Equipment
1. As agreed between the inspected State Party and the
Organization, the approved equipment listed in Part A of Attachment
5 and with which the inspected State Party has been given the
opportunity to familiarize itself will, at the discretion of the
Organization and on a routine basis, be used specifically for the
Schedule 1 inspection. The equipment will be used in accordance with
the Convention, the relevant decisions taken by the Conference of
States Parties, and any agreed procedures contained in Attachment 5.
2. The provisions of paragraph 1 above are without prejudice to
paragraphs 27 to 29 of Part II of the Verification Annex.
3. The items of equipment available on-site, not belonging to
the Organization, which the inspected State Party has volunteered to
provide to the inspection team upon its request for use on-site
during the conduct of inspections, together with any procedures for
the use of such equipment, if required, any requested support which
can be provided, and conditions for the provision of equipment are
listed in Part B of Attachment 5. Prior to any use of such
equipment, the inspection team may confirm that the performance
characteristics of such equipment are consistent with those for
similar Organization-approved equipment, or, with respect to items
of equipment which are not on the list of Organization-approved
[[Page 73789]]
equipment, are consistent with the intended purpose for using such
equipment.2
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\2\ i.e. The inspection team may confirm that the performance
characteristics of such equipment meet the technical requirements
necessary to support the inspection task intended to be
accomplished.
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4. Requests from the inspection team for the inspected State
Party during the inspection to provide equipment mentioned in
paragraph 3 above shall be made in writing by an authorized member
of the inspection team using the form contained in Attachment 5. The
same procedure will also apply to other requests of the inspection
team in accordance with paragraph 30 of Part II of the Verification
Annex.
5. Agreed procedures for the decontamination of any equipment
are contained in Part C of Attachment 5.
6. For the purpose of verification, the list of agreed on-site
monitoring instruments, if any, as well as agreed conditions,
procedures for use, maintenance, repair, modification, replacement
and provisions for the inspected State Party's support, if required,
installation points, and security measures to prevent tampering with
such on-site monitoring instruments are contained in Part D of
Attachment 5.
Section 6. Pre-Inspection Activities
1. The inspection team shall be given a pre-inspection briefing
by the representatives of the facility in accordance with paragraph
37 of Part II of the Verification Annex. The pre-inspection briefing
shall include:
(a) Information on the facility as described in Attachment 6;
(b) Health and safety specifications described in Section 2
above and detailed in Attachment 2;
(c) Any changes to the above-mentioned information since the
last inspection; and
(d) Information on administrative and logistical arrangements
additional to those contained in Attachment 10, if any, that shall
apply during the inspection, as contained in Section 10.
2. Any information about the facility that the inspected State
Party has volunteered to provide to the inspection team during the
pre-inspection briefing with indications as to which information may
be transferred off-site is referenced in Part B of Attachment 6.
Section 7. Conduct of the Inspection
7.1 Standing Arrangements
1. The inspection period shall begin immediately upon completion
of the pre-inspection briefing unless agreed otherwise. Upon
completion of the pre-inspection briefing, the inspected State Party
may, on a voluntary basis, provide a site tour at the request of the
inspection team. Arrangements for the conduct of a site tour, if
any, are contained in Attachment 7.
2. Upon conclusion of the pre-inspection briefing, the
inspection team leader shall provide to the designated
representative of the inspected State Party a preliminary inspection
plan to facilitate the conduct of the inspection.
3. Before commencement of inspection activities, the inspection
team leader shall inform the representative of the inspected State
Party about the initial steps to be taken in implementing the
inspection plan. The plan will be adjusted by the inspection team as
circumstances warrant throughout the inspection process in
consultation with the inspected State Party as to its
implementability in regard to paragraph 40 of Part II of the
Verification Annex.
4. The activities of the inspection team shall be so arranged as
to ensure the timely and effective discharge of its functions and
the least possible inconvenience to the inspected State Party and
disturbance to the facility inspected. The inspection team shall
avoid unnecessarily hampering or delaying the operation of a
facility and avoid affecting safety. In particular, the inspection
team shall not operate the facility. If the inspection team
considers that, to fulfil the mandate, particular operations should
be carried out in the facility, it shall request the designated
representative of the facility to have them performed.
5. At the beginning of the inspection, the inspection team shall
have the right to confirm the precise location of the facility
utilizing visual and map reconnaissance, a site diagram, or other
suitable techniques.
6. The inspection team shall, upon request of the inspected
State Party, communicate with the personnel of the facility only in
the presence of or through a representative of the inspected State
Party.
7. The inspected State Party shall, upon request, provide a
securable work space for the inspection team, including adequate
space for the storage of equipment. The inspection team shall have
the right to seal its work space. For ease of inspection, the
inspected State Party will work with the facility representative to
provide work space at the facility, if possible.
7.2 Access to the Declared Facility
1. The object of the inspection shall be the declared Schedule 1
facility as referenced in Attachment 6.
2. Pursuant to paragraph 45 of Part II of the Verification
Annex, the inspection team shall have unimpeded access to the
declared facility in accordance with the relevant Articles and
Annexes of the Convention and Attachments 6, 8, and 9.
7.3 Access to and Inspection of Documentation and Records
1. The agreed list of the documentation and records to be
routinely made available for inspection purposes to the inspection
team by the inspected State Party during an inspection, as well as
arrangements with regard to access to such records for the purpose
of protecting confidential information, are contained in Attachment
8. Such documentation and records will be provided to the inspection
team upon request.
2. Only those records placed in the custody of the inspection
team that are attached to the preliminary factual findings in
accordance with Section 3 may leave the premises. Those records
placed in the custody of the inspection team that are not attached
to the preliminary factual findings must be retained in the
inspection team's on-site container or returned to the inspected
State Party.
7.4 Sampling and Analysis
1. Without prejudice to paragraphs 52 to 58 of Part II of the
Verification Annex, procedures for sampling and analysis for
verification purposes are contained in Attachment 9.
2. Sampling and analysis, for inspection purposes, may be
carried out to fulfill the inspection mandate. Each such sample will
be split into a minimum of four parts at the request of the
inspection team in accordance with Part C of Attachment 9. One part
shall be analyzed in a timely manner on-site. The second part of the
split sample may be controlled by the inspection team for future
reference and, if necessary, analysis off-site at laboratories
designated by the Organization. That part of the sample may be
destroyed at any time in the future upon the decision of the
inspection team but in any case no later than 60 days after it was
taken. The third part may be retained by the inspected State Party.
The fourth part may be retained by the facility.
3. Pursuant to paragraph 52 of the Part II of the Verification
Annex, representatives of the inspected State Party or facility
shall take samples at the request of the inspection team in the
presence of inspectors. The inspected State Party will inform the
inspection team of the authorized facility representative's
3 determination of whether the sample shall be taken by
representatives of the facility or the inspection team or other
individuals present. If inspectors are granted the right to take
samples themselves in accordance with paragraph 52 of Part II of the
Verification Annex, the relevant advance agreement between the
inspection team and the inspected State Party shall be in writing.
The representatives of the inspected State Party or of the inspected
facility shall have the right to be present during sampling. Agreed
conditions and procedures for such sample collection are contained
in Part B of Attachment 9 to this Agreement.
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\3\ The authorized facility representative is the owner or the
operator, occupant or agent in charge of the premises being
inspected.
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4. Facility sampling equipment shall as a rule be used for
taking samples required for the purposes of the inspection. This is
without prejudice to the right of the inspection team pursuant to
paragraph 27 of Part II of the Verification Annex to use its own
approved sampling equipment in accordance with paragraph 1 of
Section 5 and Parts A and B of Attachment 5 to this Agreement.
5. Should the inspection team request that a sample be taken and
the inspected State Party be unable to accede or agree to the
request, the inspected State Party will make every reasonable effort
to satisfy the inspection team's concerns by other means to enable
the inspection team to fulfil its mandate. The inspected State Party
will provide a written explanation for its inability to accede or
agree to the request. Any such response shall be supported by
relevant document(s). The explanation of the inspected State Party
shall be included in the preliminary factual findings.
6. In accordance with paragraph 53 of Part II of the
Verification Annex, where possible,
[[Page 73790]]
the analysis of samples shall be performed on-site and the
inspection team shall have the right to perform on-site analysis of
samples using approved equipment brought by it for the splitting,
preparation, handling, analysis, integrity and transport of samples.
The assistance that will be provided by the inspected State Party
and the analysis procedures to be followed are contained in Part D
of Attachment 9 to this Agreement.
7. The inspection team may request the inspected State Party to
perform the analysis in the inspection team's presence. The
inspection team shall have the right to be present during any
sampling and analysis conducted by the inspected State Party.
8. The results of such analysis shall be reported in writing as
soon as possible after the sample is taken.
9. The inspection team shall have the right to request repeat
analysis or clarification in connection with ambiguities.
10. If at any time, and for any reason, on-site analysis is not
possible, the inspection team has the right to have sample(s)
analyzed off-site at Organization-designated laboratories. In
selecting such designated laboratories for the off-site analysis,
the Organization will give due regard to requirements of the
inspected State Party.
11. Transportation of samples will be in accordance with the
procedures outlined in Part E of Attachment 9.
12. If at any time, the inspected State Party or facility
representative determines that inspection team on-site analysis
activities are not in accordance with the facility agreement or
agreed analysis procedures, or otherwise pose a threat to safety or
environmental regulations or laws, the inspected State Party, in
consultation with the facility representative, will cease these on-
site activities pending resolution. If both parties cannot agree to
proceed with the analysis, the inspection team will document this in
its preliminary factual findings.
13. Conditions and procedures for the disposal of hazardous
materials generated during sampling and on-site analysis during the
inspection are contained in Part F of Attachment 9 to this
Agreement.
7.5 Arrangements for Interviews
1. The inspection team shall have the right, subject to
applicable United States legal protections for individuals, to
interview any facility personnel in the presence of representatives
of the inspected State Party with the purpose of establishing
relevant facts in accordance with paragraph 46 of Part II of the
Verification Annex and inspected State Party's policy and
procedures. Agreed procedures for conducting interviews are
contained in Attachment 11.
2. The inspection team will submit to the inspected State Party
names and/or positions of those desired for interviews. The
requested individual(s) will be made available to the inspection
team no later than 24 hours after submission of the formal request,
unless agreed otherwise. The inspection team may also be requested
to submit questions in writing prior to conducting interviews. The
specific timing and location of interviews will be determined with
the facility in coordination with the inspected State Party and
consistent with adequate notification of the interviewees, and
minimizing the operation impacts on the facility and individuals to
be interviewed.
3. The inspected State Party may recommend to the inspection
team that interviews be conducted in either ``panel'' or individual
formats. At a minimum, interviews will be conducted with a member of
the facility staff and an inspected State Party representative.
Legal counsel may also be required to be present by the inspected
State Party. The interview may be interrupted for consultation
between the interviewee, the facility representative, the inspected
State Party representative, and legal counsel.
4. The inspected State Party will have the right to restrict the
content of interviews to information directly related to the mandate
or purpose of the inspection.
5. Outside the interview process and in discharging their
functions, inspectors shall communicate with personnel of the
facility only through the representative(s) of the inspected State
Party.
7.6 Communications
1. In accordance with paragraph 44 of Part II of the
Verification Annex, the inspection team shall have the right to
communicate with the headquarters of the Technical Secretariat. For
this purpose they may use their own, duly certified approved
equipment, in accordance with paragraph 1 of Section 5. The
representative of the inspected facility retains the right to
control the use of communications equipment in specific areas,
buildings, or structures if such use would be incompatible with
applicable safety or fire regulations.
2. In case the inspection team and the inspected State Party
agree to use any of the inspected State Party's communications
equipment, the list of such equipment and the provisions for its use
are contained in Part B of Attachment 5 to this Agreement.
3. The agreed means of communication between inspection team
sub-teams in accordance with paragraph 44 of Part II of the
Verification Annex are contained in Part E of Attachment 5.
7.7 Photographs
1. In accordance with the provisions of paragraph 48 of Part II
of the Verification Annex, the Confidentiality Annex and inspected
State Party's policy and procedures, the inspection team shall have
the right to have photographs taken at their request by the
representatives of the inspected State Party or the inspected
facility. One camera of the instant development type furnished by
the inspection team or the inspected State Party shall be used for
taking identical photographs in sequence. Cameras furnished by the
inspection team will remain either in their work space or equipment
storage area except when carried by inspection team members for a
specific inspection activity. Cameras will only be used for
specified inspection purposes. Personal cameras are not allowed to
be taken to the facility.
2. Pursuant to the Confidentiality Annex, the inspected State
Party, in consultation with the facility representative, shall have
the right to determine that contents of the photographs conform to
the stated purpose of the photographs. The inspection team shall
determine whether photographs conform to those requested and, if
not, repeat photographs shall be taken. Photographs that do not meet
the satisfaction of both sides will be destroyed by the inspected
State Party in the presence of the inspection team. The inspection
team, the inspected State Party and the facility, if so requested,
shall each retain one copy of every photograph. The copies shall be
signed, dated, and classified, in accordance with Section 3, and
note the location and subject of the photograph and carry the same
identification number. Agreed procedures for photography are
contained in Attachment 12.
3. The representative of the inspected facility has the right to
object to the use of photographic equipment in specific areas,
buildings or structures if such use would be incompatible with
safety or fire regulations given the characteristics of the
chemicals stored in the area in question. Restrictions for use are
contained in Parts A and/or B of Attachment 5 to this Agreement. If
the objection is raised due to safety concerns, the inspected State
Party will, if possible, furnish photographic equipment that meets
the regulations. If the use of photographic equipment is not
permissible at all in specific areas, buildings or structures for
the reasons stated above, the inspected State Party shall provide a
written explanation of its objection to the inspection team leader.
The explanation, along with the inspection team leader's comments
will be included in the inspection team's preliminary factual
findings.
Section 8. Visits
1. This section applies to visits conducted pursuant to
paragraphs 15 and 16 of Part III of the Verification Annex.
2. The size of a team on such a visit shall be kept to the
minimum number of personnel necessary to perform the specific tasks
for which the visit is being conducted and shall in any case not
exceed the size of inspection team referenced in paragraph 5 of
Section 1.
3. The duration of the visit pursuant to this Section shall be
limited to the minimum time required to perform the specific tasks
relating to monitoring systems for which the visit is being
conducted and in any case shall not exceed the estimated period of
inspection referenced in Part B of Attachment 1 of this Agreement.
4. Access provided to the monitoring systems during the visit
shall be limited to that required to perform the specific tasks for
which the visit is being conducted, unless otherwise agreed to with
the inspected State Party.
5. General arrangements and notifications for a visit shall be
the same as for the conduct of an inspection.
Section 9. Debriefing and Preliminary Findings
1. In accordance with paragraph 60 of Part II of the
Verification Annex, upon completion of an inspection the inspection
team shall meet with representatives of the inspected State Party
and the personnel responsible for the inspection site to review the
preliminary findings of the inspection team and to clarify any
ambiguities. The
[[Page 73791]]
inspection team shall provide to the representatives of the
inspected State Party its preliminary findings in written form
according to a standardized format, together with a list of any
samples and copies of written information and data gathered and
other material to be taken off-site. The document shall be signed by
the head of the inspection team. In order to indicate that he has
taken notice of the contents of the document, the representative of
the inspected State Party shall countersign the document. The
meeting shall be completed not later than 24 hours after the
completion of the inspection.
2. The document on preliminary findings shall also include,
inter alia, the list of results of analysis, if conducted on-site,
records of seals, results of inventories, copies of photographs to
be retained by the inspection team, and results of specified
measurements. It will be prepared in accordance with the preliminary
findings format referenced in Annex 5. Any substantive changes to
this format will be made only after consultation with the inspected
State Party.
3. Before the conclusion of the debriefing, the inspected State
Party may provide comments and clarifications to the inspection team
on any issue related to the conduct of the inspection. The
inspection team shall provide to the representative of the inspected
State Party its preliminary findings in written form sufficiently
prior to the conclusion of the debriefing to permit the inspected
State Party to prepare any comments and clarifications. The
inspected State Party's written comments and clarifications shall be
attached to the document on preliminary findings.
4. The inspection team shall depart from the site upon the
conclusion of the meeting on preliminary findings.
Section 10. Administrative Arrangements
1. The inspected State Party shall provide or arrange for the
provision of the amenities listed in detail in Attachment 10 to the
inspection team throughout the duration of the inspection. The
inspected State Party shall be reimbursed by the Organization for
such costs incurred by the inspection team, unless agreed otherwise.
2. Requests from the inspection team for the inspected State
Party to provide or arrange amenities shall be made in writing by an
authorized member of the inspection team 4 using the form
contained in Attachment 10. Requests shall be made as soon as the
need for amenities has been identified. The provision of such
requested amenities shall be certified in writing by the authorized
member of the inspection team. Copies of all such certified requests
shall be kept by both parties.
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\4\ The name of the authorized member(s) of the inspection team
should be communicated to the inspected State Party no later than at
the Point of Entry.
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3. The inspection team has the right to refuse extra amenities
that in its view are not needed for the conduct of the inspection.
Section 11. Liabilities
1. Any claim by the inspected State Party against the
Organization or by the Organization against the inspected State
Party in respect of any alleged damage or injury resulting from
inspections at the facility in accordance with this Agreement,
without prejudice to paragraph 22 of the Confidentiality Annex,
shall be settled in accordance with international law and, as
appropriate, with the provisions of Article XIV of the Convention.
Section 12. Status of Attachments
1. The Attachments form an integral part of this Agreement. Any
reference to the Agreement includes the Attachments. However, in
case of any inconsistency between this Agreement and any Attachment,
the sections of the Agreement shall prevail.
Section 13. Amendments, Modifications and Updates
1. Amendments to the sections of this Agreement may be proposed
by either Party and shall be agreed to and enter into force under
the same conditions as provided for under paragraph 1 of Section 15.
2. Modifications to the Attachments of this Agreement, other
than Attachment 1 and Part B of Attachment 5, may be agreed upon at
any time between the representative of the Organization and the
representative of the inspected State Party, each being specifically
authorized to do so. The Director-General shall inform the Executive
Council about any such modifications. Each Party to this Agreement
may revoke its consent to a modification not later than four weeks
after it had been agreed upon. After this time period the
modification shall take effect.
3. The inspected State Party will update Part A of Attachment 1
and Part B of Attachment 5 and Attachment 6 as necessary for the
effective conduct of inspections. The Organization will update Part
B of Attachment 1 and Annex 5, subject to paragraph 2 of Section 9,
as necessary for the effective conduct of inspections.
Section 14. Settlement of Disputes
1. Any dispute between the Parties that may arise out of the
application or interpretation of this Agreement shall be settled in
accordance with Article XIV of the Convention.
Section 15. Entry Into Force
1. This Agreement shall enter into force after approval by the
Executive Council and signature by the two Parties. If the inspected
State Party has additional internal requirements, it shall so notify
the Organization in writing by the date of signature. In such cases,
this Agreement shall enter into force on the date that the inspected
State Party gives the Organization written notification that its
internal requirements for entry into force have been met.
Section 16. Duration and Termination
1. This Agreement shall cease to be in force when, as determined
by the Executive Council, the provisions of paragraphs 3 and 8 of
Article VI and Part VI of the Verification Annex no longer apply to
this facility.
Done at ____ in ____ copies, in English, each being equally
authentic.5
---------------------------------------------------------------------------
\5\ The language(s) to be chosen by the inspected State Party
from the languages of the Convention shall be the same as the
language(s) referred to in paragraph 6 of Section 1 of this
Agreement.
---------------------------------------------------------------------------
Attachments
The following attachments shall be completed where applicable.
Attachment 1: General Factors for the Conduct of Inspections
Attachment 2: Health and Safety Requirements and Procedures
Attachment 3: Specific Arrangements in Relation to the Protection of
Confidential Information at the Facility
Attachment 4: Arrangements for the Inspection Team's Contacts with
the Media or the Public
Attachment 5: Inspection Equipment
Attachment 6: Information on the Facility Provided in Accordance
with Section 6
Attachment 7: Arrangements for Site Tour
Attachment 8: Records Routinely Made Available to the Inspection
Team at the Facility
Attachment 9: Sampling and Analysis for Verification Purposes
Attachment 10: Administrative Arrangements
Attachment 11: Agreed Procedures for Conducting Interviews
Attachment 12: Agreed Procedures for Photography
Attachment 1.--General Factors for the Conduct of Inspections
Part A. To Be Provided and Updated by the inspected State Party:
1. Schedule 1 facility(s) working hours, if applicable:
6____hrs to ____hrs (local time) (days)
---------------------------------------------------------------------------
\6\ All references to time use a 24 hour clock.
---------------------------------------------------------------------------
2. Working days: ____________________
3. Holidays or other non-working days:
----------------------------------------------------------------------
----------------------------------------------------------------------
4. Inspection activities which could/could not 7 be
supported during non-working hours with notation of times and
activities:
---------------------------------------------------------------------------
\7\ Choose one option.
---------------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
5. Any other factors that could adversely affect the effective
conduct of inspections:
(a) inspection requests:
Should the facility withhold consent to an inspection, the
inspected State Party shall take all appropriate action under its
law to obtain a search warrant from a United States magistrate
judge. Upon receipt of a warrant, the inspected State Party will
accede to the Organization's request to conduct an inspection. Such
inspection will be carried out in accordance with the terms and
conditions of the warrant.
(b) other:
----------------------------------------------------------------------
6. Other: notification procedures are contained in Annex 6.
Part B. To Be Provided and Updated by the Organization:
1. Inspection frequency: ________________
2. Inspection intensity:
(a) maximum estimated period of inspection (for planning
purposes): ________
(b) approximate inspection team size: ____
(c) estimated volume and weight of equipment to be brought on-
site: ________
[[Page 73792]]
Attachment 2
Health and Safety Requirements and Procedures
Part A. Basic Principles:
1. Applicable health and safety regulations of the Organization,
with agreed variations from strict implementation, if any:
----------------------------------------------------------------------
----------------------------------------------------------------------
2. Health and safety regulations applicable at the facility:
(a) federal regulations:
----------------------------------------------------------------------
----------------------------------------------------------------------
(b) state regulations:
----------------------------------------------------------------------
----------------------------------------------------------------------
(c) local regulations:
----------------------------------------------------------------------
----------------------------------------------------------------------
(d) facility regulations:
----------------------------------------------------------------------
----------------------------------------------------------------------
3. Health and safety requirements and regulations agreed between
the inspected State Party and the Organization:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part B. Detection and Monitoring:
1. Applicable specific safety standards for workplace chemical
exposure limits and/or concentrations which should be observed
during the inspection, if any:
----------------------------------------------------------------------
----------------------------------------------------------------------
2. Procedures for detection and monitoring in accordance with
the Organization's Health and Safety Policy, including data to be
collected by, or provided to, the inspection team:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part C. Protection:
1. Protective equipment to be provided by the Organization and
agreed procedures for equipment certification and use, if required:
----------------------------------------------------------------------
----------------------------------------------------------------------
2. Protective equipment to be provided by the inspected State
Party, and agreed procedures, personnel training, and personnel
qualification tests and certification required; and agreed
procedures for use of the equipment:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part D. Medical Requirements:
1. Applicable medical standards of the inspected State Party
and, in particular, the inspected facility:
----------------------------------------------------------------------
----------------------------------------------------------------------
2. Medical screening procedures for members of the inspection
team:
----------------------------------------------------------------------
----------------------------------------------------------------------
3. Agreed medical assistance to be provided by the inspected
State Party:
----------------------------------------------------------------------
----------------------------------------------------------------------
4. Emergency medical evacuation procedures:
----------------------------------------------------------------------
----------------------------------------------------------------------
5. Agreed additional medical measures to be taken by the
inspection team:
----------------------------------------------------------------------
----------------------------------------------------------------------
6. Procedures for emergency response to chemical casualties of
the inspection team:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part E. Modification of Inspection Activities:
1. Modification of inspection activities due to health and
safety reasons, and agreed alternatives to accomplish the inspection
goals:
----------------------------------------------------------------------
----------------------------------------------------------------------
Attachment 3.--Specific Arrangements in Relation to the Protection of
Confidential Information at the Facility
Part A. Inspected State Party's Procedures for Designating and
Classifying Documents Provided to the Inspection Team: See Annex 3
for the Organization's Policy on Confidentiality and Annex 7 for the
inspected State Party's Procedures for Information Control.
Part B. Specific Procedures for Access by the Inspection Team to
Confidential Areas or Materials:
----------------------------------------------------------------------
----------------------------------------------------------------------
Procedures in Relation to the Certification by the Inspection
Team of the Receipt of Any Documents Provided by the Inspected
Facility:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part C. Storage of Confidential Documents at the Inspected
Facility:
1. Procedures in relation to the storage of confidential
documents or use of a dual control container on-site, if applicable:
Information under restrictions provided for in the Confidentiality
Annex and as such to be kept in the dual control container under
joint seal shall be available to the inspection team leader and/or
an inspector designated by him from the beginning of the pre-
inspection briefing until the end of the debriefing upon completion
of the inspection. If copies of information under dual control are
permitted to be attached to the preliminary factual findings by the
inspected State Party, they shall be made by the inspected State
Party and retained under dual control until the debriefing. Should
the medium on which such information is recorded become unusable, it
shall be replaced without delay by the representative of the
inspected State Party.
----------------------------------------------------------------------
----------------------------------------------------------------------
2. The dual control container will be placed
----------------------------------------------------------------------
3. Information meeting the strict requirements for restriction
pursuant to the Confidentiality Annex, and to be maintained in the
dual control container located at the inspected facility between
inspections is listed below:
----------------------------------------------------------------------------------------------------------------
Reasons for
Reference Type of data Recorded media Volume restrictions/
remarks
----------------------------------------------------------------------------------------------------------------
................... .................. .................. ..................
................... .................. .................. ..................
................... .................. .................. ..................
----------------------------------------------------------------------------------------------------------------
Part D. Procedures for the Removal Off-Site of Any Written
Information, Data, and Other Material Gathered by the Inspection
Team:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part E. Procedures for Providing the Representatives of the
inspected State Party with Copies of Written Information,
Inspector's Notebooks, Data and Other Material Gathered by the
Inspection Team:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part F. Other Arrangements, If Any:
1. Unless specified otherwise, all facility information shall be
returned to the inspected State Party at the completion of the
inspection. No copies of facility information shall be made in any
manner by the inspection team or the Organization.
2. Facility information shall not be released to the public,
other States Parties, or the media without the specific permission
of the inspected State Party, after consultation with the facility.
3. Facility information shall not be transmitted, copied or
retained electronically without the specific permission of the
inspected State Party after consultation with the facility. All
transmissions of information off-site shall be done in the presence
of the inspected State Party.
4. Information not relevant to the purpose of the inspection
will be purged from documents, photographs, etc. prior to release to
the inspection team.
Attachment 4.--Arrangements for the Inspection Team's Contacts with the
Media or the Public
----------------------------------------------------------------------
----------------------------------------------------------------------
Attachment 5.--Inspection Equipment
Part A: List of Equipment:
[[Page 73793]]
----------------------------------------------------------------------------------------------------------------
Agreed procedures for use
--------------------------------------------------------------------------------
Nature of Alternative for
Item of approved inspection restrictions(s) Indication of Special handling meeting inspection
equipment (location, time, reason(s) (safety, or storage requirement(s), if
periods, etc.), if confidentiality, requirements so required by the
any etc.) inspection team
----------------------------------------------------------------------------------------------------------------
................... .................. ..................
................... .................. ..................
----------------------------------------------------------------------------------------------------------------
Part B. Equipment which the inspected State Party Has
Volunteered to Provide:
----------------------------------------------------------------------------------------------------------------
Support to be provided, Conditions (timing,
Item of equipment Procedures for use if required costs, if any)
----------------------------------------------------------------------------------------------------------------
........................ ....................... .......................
----------------------------------------------------------------------------------------------------------------
Part C. Procedures for the Decontamination of Equipment:
------------------------------------------------------------------------
Item of equipment Procedures for use
------------------------------------------------------------------------
.............................
.............................
------------------------------------------------------------------------
Part D. Agreed On-Site Monitoring Instruments:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part E. Means of Communication between Inspection Team Sub-
Teams:
----------------------------------------------------------------------
----------------------------------------------------------------------
Request for and Certification of Equipment Available on Site To Be
Provided in Accordance With Paragraph 3 of Section 5
Date:------------------------------------------------------------------
Facility:--------------------------------------------------------------
Inspection number:-----------------------------------------------------
Name of the authorized member of the inspection team:
----------------------------------------------------------------------
Type and number of item(s) of equipment requested:
----------------------------------------------------------------------
----------------------------------------------------------------------
Approval of the request by inspected State Party:
----------------------------------------------------------------------
Comments on the request by the inspected State Party:
----------------------------------------------------------------------
----------------------------------------------------------------------
Indication of the costs, if any, for the use of the equipment
requested/volunteered:
----------------------------------------------------------------------
----------------------------------------------------------------------
Certification of the authorized member of the inspection team that
the requested item(s) of equipment have been provided:
----------------------------------------------------------------------
Comments, if any, by the authorized member of the inspection team in
regard to the equipment provided:
----------------------------------------------------------------------
----------------------------------------------------------------------
Name and signature of the authorized member of the inspection team:
----------------------------------------------------------------------
Name and signature of the representative of the inspected State
Party:
----------------------------------------------------------------------
Attachment 6.--Information on the Facility Provided in Accordance With
Section 6
Part A. Topics of Information for the Pre-Inspection Briefing:
----------------------------------------------------------------------
----------------------------------------------------------------------
1. Specification of the elements constituting the declared
facility, including their physical location(s) (i.e., detail the
areas, equipment, and computers), with indications as to which
information may be transferred off-site:
----------------------------------------------------------------------
----------------------------------------------------------------------
2. Procedures for unimpeded access within the declared facility:
8
---------------------------------------------------------------------------
\8\ List the areas, equipment, and computers, if any, that are
not relevant to the inspection mandate or that contain confidential
business information that does not need to be divulged in order to
comply with the inspection mandate.
---------------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
3. Other:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part B. Any Information about the Facility that the inspected
State Party Volunteers to Provide to the Inspection Team during the
Pre-Inspection Briefing with Indications as to which May Be
Transferred Off-Site:
----------------------------------------------------------------------
----------------------------------------------------------------------
Attachment 7.--Arrangements for Site Tour
The inspected State Party may provide a site tour at the request
of the inspection team. The inspected State Party may provide
explanations to the inspection team during the site tour.
----------------------------------------------------------------------
----------------------------------------------------------------------
Attachment 8.--Records Routinely Made Available to the Inspection Team
at the Facility (i.e., Identify Records and Data)
----------------------------------------------------------------------
----------------------------------------------------------------------
Attachment 9.--Sampling and Analysis for Verification Purposes
Part A. Agreed Sampling Points Chosen with Due Consideration to
Existing Sampling Points Used by the Facility(s) Operator(s):
----------------------------------------------------------------------
Part B. Procedures for Taking Samples:
----------------------------------------------------------------------
Part C. Procedures for Sample Handling and Sample Splitting:
----------------------------------------------------------------------
Part D. Procedures for On-Site Sample Analysis, If Any:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part E. Procedures for Off-Site Analysis, If Any:
----------------------------------------------------------------------
Part F. Procedures for Transporting Samples:
----------------------------------------------------------------------
Part G. Arrangements in Regard to the Payment of Costs
Associated with the Disposal or Removal by the inspected State Party
of Hazardous Waste Generated during Sampling and On-Site Analysis
during the Inspection:
----------------------------------------------------------------------
Attachment 10.--Administrative Arrangements
Part A. The Amenities Detailed Below Shall Be Provided to the
Inspection Team by the inspected State Party, Subject to Payment as
Indicated in Part B Below:
1. International and local official communication (telephone,
fax), including calls/faxes between site and headquarters:
----------------------------------------------------------------------
2. Vehicles:---------------------------------------------------------
3. Working room, including adequate space for the storage of
equipment:
----------------------------------------------------------------------
4. Lodging:----------------------------------------------------------
5. Meals:------------------------------------------------------------
6. Medical care:-----------------------------------------------------
7. Interpretation Services:
(a) number of interpreters:------------------------------------------
(b) estimated interpretation time:-----------------------------------
(c) languages:-------------------------------------------------------
8. Other:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part B. Distribution of Costs for Provision of Amenities by the
inspected State Party (check one option for each amenity provided as
appropriate):
[[Page 73794]]
----------------------------------------------------------------------------------------------------------------
To be paid by the To be paid by the
To be paid directly by inspection team on inspected State Party
Paragraphs 1-8 in the Organization after behalf of the and subsequently To be paid by the
Part A above the inspection Organization during reimbursed by the inspected State Party
the in-country period Organization
----------------------------------------------------------------------------------------------------------------
1 ...................... ...................... ..................... .....................
2 ...................... ...................... ..................... .....................
3 ...................... ...................... ..................... .....................
4 ...................... ...................... ..................... .....................
5 ...................... ...................... ..................... .....................
6 ...................... ...................... ..................... .....................
7 ...................... ...................... ..................... .....................
8 ...................... ...................... ..................... .....................
----------------------------------------------------------------------------------------------------------------
Part C. Other Arrangements. 1. Number of sub-teams (consisting
of no less than two inspectors per sub-team) to be accommodated:
______
Request for and Certification of Amenities To Be Provided or Arranged
Date:------------------------------------------------------------------
Facility:--------------------------------------------------------------
Inspection number:-----------------------------------------------------
Category of amenities requested:---------------------------------------
----------------------------------------------------------------------
Description of amenities requested:------------------------------------
----------------------------------------------------------------------
Approval of the request by the inspected State Party:
----------------------------------------------------------------------
Comments on the request by the inspected State Party:
----------------------------------------------------------------------
----------------------------------------------------------------------
Indication of the costs for the amenities requested:
----------------------------------------------------------------------
----------------------------------------------------------------------
Certification of the authorized member of the inspection team that
the requested amenities have been provided:
----------------------------------------------------------------------
Comments by the authorized member of the inspection team in regard
to the quality of the amenities provided:
----------------------------------------------------------------------
----------------------------------------------------------------------
Name and signature of the authorized member of the inspection team:
----------------------------------------------------------------------
Name and signature of the representative of the inspected State
Party:
----------------------------------------------------------------------
Attachment 11.--Agreed Procedures for Conducting Interviews
----------------------------------------------------------------------
----------------------------------------------------------------------
Attachment 12.--Agreed Procedures for Photography
----------------------------------------------------------------------
----------------------------------------------------------------------
Annexes
Note: These annexes, inter alia, can be attached if requested by
the inspected State Party
Annex 1: Organization's Media and Public Relations Policy
Annex 2: Organization's Health and Safety Policy and Regulations
Annex 3: Organization's Policy on Confidentiality
Annex 4: Facility Declaration
Annex 5: Preliminary and Final Inspection Report Formats
Annex 6: Inspected State Party's Procedures for Inspection
Notification
Annex 7: Inspected State Party's Procedures for Information Control
Supplement No. 3 to Part 716--Schedule 2 Model Facility Agreement
Draft Facility Agreement between the Organization for the Prohibition
of Chemical Weapons and the Government of the United States of America
Regarding On-Site Inspections at the ______ Schedule 2 Plant Site
Located at ____________
The Organization for the Prohibition of Chemical Weapons,
hereinafter referred to as ``Organization,'' and the Government of
the United States of America, hereinafter referred to as ``inspected
State Party,'' both constituting the Parties to this Agreement, have
agreed on the following arrangements in relation to the conduct of
inspections pursuant to paragraph 4 of Article VI of the Convention
on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on their Destruction, hereinafter
referred to as ``the Convention,'' at (insert name of the plant
site, its precise location, including the address), declared under
paragraphs 7 and 8 of Article VI, hereinafter referred to as ``plant
site'':
Section 1. General Provisions
1. The purpose of this Agreement is to facilitate the
implementation of the provisions of the Convention in relation to
inspections conducted at the plant site pursuant to paragraph 4 of
Article VI of the Convention, and in accordance with the obligations
of the inspected State Party and the Organization under the
Convention.
2. Nothing in this Agreement shall be applied or interpreted in
a way that is contradictory to the provisions of the Convention,
including paragraph 1 of Article VII.1 In case of
inconsistency between this Agreement and the Convention, the
Convention shall prevail.
---------------------------------------------------------------------------
\1\ Each State Party shall, in accordance with its
constitutional processes, adopt the necessary measures to implement
its obligations under this Convention.
---------------------------------------------------------------------------
3. The Parties have agreed to apply for planning purposes the
general factors contained in Attachment 1.
4. The frequency and intensity of inspections at the plant site
are given in Part B of Attachment 1 and reflect the risk assessment
of the Organization conducted pursuant to paragraphs 18, 20 and 24
of Part VII of the Verification Annex.
5. The inspection team shall consist of no more than ____
persons.
6. The language for communication between the inspection team
and the inspected State Party during inspections shall be English.
7. The period of inspection shall not last more than ninety-six
(96) hours, unless an extension has been agreed to by the inspected
State Party and the inspection team.
8. In case of any development due to circumstances brought about
by unforeseen events or acts of nature, which could affect
inspection activities at the plant site, the inspected State Party
shall notify the Organization and the inspection team as soon as
practically possible.
9. In case of need for the urgent departure, emergency
evacuation or urgent travel of inspector(s) from the territory of
the inspected State Party, the inspection team leader shall inform
the inspected State Party of such a need. The inspected State Party
shall arrange without undue delay such departure, evacuation or
travel. In all cases, the inspected State Party shall determine the
means of transportation and routes to be taken. The costs of such
departure, evacuation or travel of inspectors shall be borne by the
Organization.
10. Inspectors shall wear identification badges at all times
when on the premises of the plant site.
Section 2. Health and Safety
1. Health and safety matters during inspections are governed by
the Convention, the Organization's Health and Safety Policy and
Regulations, and applicable national, local and plant site safety
and environmental regulations. The specific arrangements for
implementing the relevant provisions of the Convention and the
Organization's Health and Safety Policy in relation to inspections
at the plant site are contained in Attachment 2.
2. Pursuant to paragraph 1 of this section, all applicable
health and safety regulations relevant to the conduct of the
inspection at the plant site are listed in Attachment 2 and
[[Page 73795]]
shall be made available for use by the inspection team at the plant
site.
3. In case of the need to modify any health-and safety-related
arrangements at the plant site contained in Attachment 2 to this
Agreement bearing on the conduct of inspections, the inspected State
Party shall notify the Organization. Any such modification shall
apply provisionally until the inspected State Party and the
Organization have reached agreement on this issue. In case no
agreement has been reached by the time of the completion of the
inspection, the relevant information may be included in the
preliminary factual findings. Any agreed modification shall be
recorded in Attachment 2 to this Agreement in accordance with
paragraph 2 of Section 12 of this Agreement.
4. In the course of the pre-inspection briefing the inspection
team shall be briefed by the representatives of the plant site on
all health and safety matters which, in the view of those
representatives, are relevant to the conduct of the inspection at
the plant site, including:
(a) the health and safety measures at the Schedule 2 plant(s) to
be inspected and the likely risks that may be encountered during the
inspection;
(b) any additional health and safety or regulations that need to
be observed at the plant site;
(c) procedures to be followed in case of an accident or in case
of other emergencies, including a briefing on emergency signals,
routes and exits, and the location of emergency meeting points and
medical facilities; and
(d) specific inspection activities which must be limited within
particular areas at the plant site, and in particular within those
Schedule 2 plant(s) to be inspected under the inspection mandate,
for reasons of health and safety.
Upon request, the inspection team shall certify receipt of any
such information if it is provided in written form.
5. During the course of an inspection, the inspection team shall
refrain from any action which by its nature could endanger the
safety of the team, the plant site, or its personnel or could cause
harm to the environment. Should the inspected State Party refuse
certain inspection activities, it may explain the circumstances and
safety considerations involved, and shall provide alternative means
for accomplishing the inspection activities.
6. In the case of emergency situations or accidents involving
inspection team members while at the plant site, the inspection team
shall comply with the plant site's emergency procedures and the
inspected State Party shall to the extent possible provide medical
and other assistance in a timely and effective manner with due
regard to the rules of medical ethics if medical assistance is
requested. Information on medical services and facilities to be used
for this purpose is contained in Part D of Attachment 2. If the
Organization undertakes other measures for medical support in regard
to inspection team members involved in emergency situations or
accidents, the inspected State Party will render assistance to such
measures to the extent possible. The Organization will be
responsible for the consequences of such measures.
7. The inspected State party shall, to the extent possible,
assist the Organization in carrying out any inquiry into an accident
or incident involving a member of the inspection team.
8. If, for health and safety reasons given by the inspected
State Party, health and safety equipment of the inspected State
Party is required to be used by the inspection team, the cost so
incurred shall be borne by the inspected State Party.
9. The inspection team may use its own approved health and
safety equipment. If the inspected State Party determines it to be
necessary, the inspected State Party shall conduct a fit test on
masks brought with the inspection team. If the inspected State Party
so requests on the basis of confirmed contamination or hazardous
waste requirements or regulations, any such piece of equipment
involved in the inspection activities will be left at the plant site
at the end of the inspection. The inspection team reserves the right
to destroy equipment left at the plant site or witness its
destruction by agreed procedures. The inspected State Party will
reimburse the Organization for the loss of the inspection team's
equipment.
10. In accordance with the Organization's Health and Safety
Policy, the inspected State Party may provide available data based
on detection and monitoring, to the agreed extent necessary to
satisfy concerns that may exist regarding the health and safety of
the inspection team.
Section 3. Confidentiality
1. Matters related to confidentiality are governed by the
Convention, including its Confidentiality Annex and paragraph 1 of
Article VII, and the Organization's Policy on Confidentiality. The
specific arrangements for implementing the provisions of the
Convention and the Organization's Policy on Confidentiality in
relation to the protection of confidential information at the plant
site are contained in Attachment 3.
2. Upon request, the inspected State Party will procure a
container to be placed under joint seal to maintain documents that
the inspection team, inspected State Party, or the plant site
representative decides to keep as reference for future inspections.
The inspected State Party shall be reimbursed by the Organization
for the purchase of such container.
3. All documents, including photographs, provided to the
inspection team will be controlled as follows:
(a) Information to be taken off-site. Information relevant to
the finalization of the preliminary factual findings that the
inspected State Party permits the inspection team to take off-site
will be marked and numbered by the inspected State Party. In
accordance with the inspected State Party's Procedures for
Information Control, markings on the information will clearly state
that the inspection team may take it off-site and will contain a
classification pursuant to the Organization's Policy on
Confidentiality at a level requested by the inspected State Party.
The representative of the plant site will acknowledge the release of
such information in writing prior to disclosure to the inspection
team.
(b) Information restricted for use on-site. Information that the
inspected State Party permits the inspection team to use on-site
during inspections but not take off-site will be marked and numbered
by the inspected State Party. In accordance with the inspected State
Party's Procedures for Information Control, markings on the
information will clearly restrict its use on-site and will contain a
classification pursuant to the Organization's Policy on
Confidentiality at a level requested by the inspected State Party.
The representative of the plant site will acknowledge the release of
such information in writing prior to disclosure to the inspection
team. Upon conclusion of the inspection, the inspection team shall
return the information to the inspected State Party, and the plant
site representative shall acknowledge receipt in writing. If so
requested by the inspection team, the information can be placed in
the joint sealed container for future reference.
(c) Information restricted for use on-site and requiring direct
supervision. Information that the inspected State Party permits the
inspection team to use on-site only under direct supervision of the
inspected State Party or the representative of the inspected plant
site will be marked and numbered by the inspected State Party. In
accordance with the inspected State Party's Procedures for
Information Control, markings on the information will clearly
restrict its use on-site under direct supervision and will contain a
classification pursuant to the Organization's Policy on
Confidentiality at a level requested by the inspected State Party.
The representative of the plant site will acknowledge the release of
such information in writing prior to disclosure to the inspection
team. The inspection team shall return the information to the
inspected State Party immediately upon completion of review and the
plant site representative shall acknowledge receipt in writing. If
so requested by the inspection team, the information can be placed
in the joint sealed container for future reference.
Section 4. Media and Public Relations
1. Inspection team media and public relations are governed by
the Organization's Media and Public Relations Policy. The specific
arrangements for the inspection team's contacts with the media or
the public, if any, in relation to inspections of the plant site are
contained in Attachment 4.
Section 5. Inspection Equipment
1. As agreed between the inspected State Party and the
Organization, the approved equipment listed in Part A of Attachment
5 and with which the inspected State Party has been given the
opportunity to familiarize itself will, at the discretion of the
Organization and on a routine basis, be used specifically for the
Schedule 2 inspection. The equipment will be used in accordance with
the Convention, the relevant decisions taken by the Conference of
States Parties, and any agreed procedures contained in Attachment 5.
[[Page 73796]]
2. The provisions of paragraph 1 above are without prejudice to
paragraphs 27 to 29 of Part II of the Verification Annex.
3. The items of equipment available on-site and not belonging to
the Organization which the inspected State Party has volunteered to
provide to the inspection team upon its request for use on-site
during the conduct of inspections, together with any procedures for
the use of such equipment, if required, any requested support which
can be provided, and conditions for the provision of equipment are
listed in Part B of Attachment 5. Prior to any use of such
equipment, the inspection team may confirm that the performance
characteristics of such equipment are consistent with those for
similar Organization-approved equipment, or--with respect to items
of equipment which are not on the list of Organization-approved
equipment--are consistent with the intended purpose for using such
equipment.\2\
---------------------------------------------------------------------------
\2\ I.e., the inspection team may confirm that the performance
characteristics of such equipment meet the technical requirements
necessary to support the inspection task intended to be
accomplished.
---------------------------------------------------------------------------
4. Requests from the inspection team for the inspected State
Party during the inspection to provide equipment mentioned in
paragraph 3 above shall be made in writing by an authorized member
of the inspection team using the form contained in Attachment 5. The
same procedure will also apply to other requests of the inspection
team in accordance with paragraph 30 of Part II of the Verification
Annex.
5. Agreed procedures for the decontamination of any equipment
are contained in Part C of Attachment 5.
Section 6. Pre-Inspection Activities
1. The inspection team shall be given a pre-inspection briefing
by the representatives of the plant site in accordance with
paragraph 37 of Part II of the Verification Annex. The pre-
inspection briefing shall include:
(a) information on the plant site as described in Attachment 6;
(b) health and safety specifications described in Section 2
above and detailed in Attachment 2;
(c) any changes to the above-mentioned information since the
last inspection; and
(d) information on administrative and logistical arrangements
additional to those contained in Attachment 11, if any, that shall
apply during the inspection, as contained in Section 9.
2. Any information about the plant site that the inspected State
Party has volunteered to provide to the inspection team during the
pre-inspection briefing with indications as to which information may
be transferred off-site is referenced in Part B of Attachment 6.
Section 7. Conduct of the Inspection
7.1 Standing Arrangements
1. The inspection period shall begin immediately upon completion
of the pre-inspection briefing unless agreed otherwise.
2. Upon conclusion of the pre-inspection briefing, the
inspection team leader shall provide to the designated
representative of the inspected State Party a preliminary inspection
plan to facilitate the conduct of the inspection.
3. Arrangements for the conduct of a site tour, if any, are
contained in Attachment 7 to this Agreement.
4. Before commencement of inspection activities, the inspection
team leader shall inform the representative of the inspected State
Party about the initial steps to be taken in implementing the
inspection plan. The plan will be adjusted by the inspection team as
circumstances warrant throughout the inspection process in
consultation with the inspected State Party as to its
implementability in regard to paragraph 40 of Part II of the
Verification Annex.\3\
---------------------------------------------------------------------------
\3\ The activities of the inspection team shall be so arranged
as to ensure the timely and effective discharge of its functions and
the least possible inconvenience to the inspected State Party and
disturbance to the plant site inspected. The inspection team shall
avoid unnecessarily hampering or delaying the operation of the plant
site and avoid affecting its safety. In particular, the inspection
team shall not operate the plant site. If the inspection team
considers that, to fulfil the mandate, particular operations should
be carried out at the plant site, it shall request the designated
representative of the plant site to have them performed.
---------------------------------------------------------------------------
5. The inspection team leader shall inform the representative of
the inspected State Party during the inspection in a timely manner
about each subsequent step to be taken by the inspection team in
implementing the inspection plan. Without prejudice to paragraph 40
of Part II of the Verification Annex, this shall be done in time to
allow the inspected State Party to arrange for the necessary
measures to be taken to provide access and support to the inspection
team as appropriate without causing unnecessary delay in the conduct
of inspection activities.
6. At the beginning of the inspection, the inspection team shall
have the right to confirm the precise location of the plant site
utilizing visual and map reconnaissance, a site diagram, or other
suitable techniques.
7. The inspection team shall, upon request of the inspected
State Party, communicate with the personnel of the plant site only
in the presence of or through a representative of the inspected
State Party.
8. The inspected State Party shall, upon request, provide a
securable work space for the inspection team, including adequate
space for the storage of equipment. The inspection team shall have
the right to seal its work space. For ease of inspection, the
inspected State Party will work with the plant site representative
to provide work space at the plant site, if possible.
7.2 Access to and Inspection of Areas, Buildings and Structures
1. The focus of the inspection shall be the declared Schedule 2
plant(s) within the declared plant site as referenced in Attachment
8. If the inspection team requests access to other parts of the
plant site, access to these areas shall be granted in accordance
with the obligation to provide clarification pursuant to paragraph
51 of Part II and paragraph 25 of Part VII of the Verification
Annex, and in accordance with Attachment 8.
2. Pursuant to paragraph 45 of Part II of the Verification
Annex, the inspection team shall have unimpeded access to the
declared Schedule 2 plant(s) in accordance with the relevant
Articles and Annexes of the Convention and Attachments 8, 9, and 10.
Areas of the declared plant(s) likely to be inspected are mentioned
in paragraph 28 of Part VII of the Verification Annex. Pursuant to
Section C of Part X of the Verification Annex, the inspection team
shall have managed access to the other areas of the plant site.
Procedures for access to these areas are contained in Attachment 8.
7.3 Access to and Inspection of Documentation and Records
1. The agreed list of the documentation and records to be
routinely made available for inspection purposes, mentioned in
paragraph 26 of Part VII of the Verification Annex, to the
inspection team by the inspected State Party during an inspection,
as well as arrangements with regard to access to such records for
the purpose of protecting confidential information, are contained in
Attachment 9. Such documentation and records will be provided upon
request.
2. Only those records placed in the custody of the inspection
team that are attached to the preliminary factual findings in
accordance with Section 3 may leave the premises. Those records
placed in the custody of the inspection team that are not attached
to the preliminary factual findings must be retained in the on-site
container or returned to the inspected State Party.
7.4 Sampling and Analysis
1. Without prejudice to paragraphs 52 to 58 of Part II of the
Verification Annex, procedures for sampling and analysis for
verification purposes as mentioned in paragraph 27 of Part VII of
the Verification Annex are contained in Attachment 10 of this
Agreement.
2. Sampling and analysis, for inspection purposes, may be
carried out to check whether undeclared scheduled chemicals are
detected. Each such sample will be split into a minimum of four
parts at the request of the inspection team in accordance with Part
C of Attachment 10. One part shall be analyzed in a timely manner
on-site. The second part of the split sample may be controlled by
the inspection team for future reference and, if necessary, analysis
off-site at laboratories designated by the Organization. That part
of the sample may be destroyed at any time in the future upon the
decision of the inspection team but in any case no later than 60
days after it was taken. The third part may be retained by the
inspected State Party. The fourth part may be retained by the plant
site.
3. Pursuant to paragraph 52 of the Part II of the Verification
Annex, representatives of the inspected State Party or plant site
shall take samples at the request of the inspection team in the
presence of inspectors. The inspected State Party will inform the
inspection team of the authorized plant site representative's \4\
determination of whether the sample shall be taken by
representatives of the plant site or the inspection team or other
individuals present. If inspectors are
[[Page 73797]]
granted the right to take samples themselves in accordance with
paragraph 52 of Part II of the Verification Annex, the relevant
advance agreement between the inspection team and the inspected
State Party shall be in writing. The representatives of the
inspected State Party and the inspected plant site shall have the
right to be present during sampling. Agreed conditions and
procedures for such sample collection are contained in Part B of
Attachment 10 to this Agreement.
---------------------------------------------------------------------------
\4\ The authorized plant site representative is the owner or the
operator, occupant or agent in charge of the premises being
inspected.
---------------------------------------------------------------------------
4. Plant site sampling equipment shall as a rule be used for
taking samples required for the purposes of the inspection. This is
without prejudice to the right of the inspection team pursuant to
paragraph 27 of Part II of the Verification Annex to use its own
approved sampling equipment in accordance with paragraph 1 of
Section 5 and Parts A and B of Attachment 5 to this Agreement.
5. Should the inspection team request that a sample be taken and
the inspected State Party be unable to accede or agree to the
request, the inspected State Party will make every reasonable effort
to satisfy the inspection team's concerns by other means to enable
the inspection team to fulfil its mandate. The inspected State Party
will provide a written explanation for its inability to accede or
agree to the request. Any such response shall be supported by
relevant document(s). The explanation of the inspected State Party
shall be included in the preliminary factual findings.
6. In accordance with paragraph 53 of Part II of the
Verification Annex, where possible, the analysis of samples shall be
performed on-site and the inspection team shall have the right to
perform on-site analysis of samples using approved equipment brought
by it for the splitting, preparation, handling, analysis, integrity
and transport of samples. The assistance that will be provided by
the inspected State Party and the analysis procedures to be followed
are contained in Part D of Attachment 10 to this Agreement.
7. The inspection team may request the inspected State Party to
perform the analysis in the inspection team's presence. The
inspection team shall have the right to be present during any
sampling and analysis conducted by the inspected State Party.
8. The results of such analysis shall be reported in writing as
soon as possible after the sample is taken.
9. The inspection team shall have the right to request repeat
analysis or clarification in connection with ambiguities.
10. If at any time, and for any reason, on-site analysis is not
possible, the inspection team has the right to have sample(s)
analyzed off-site at Organization-designated laboratories. In
selecting such designated laboratories for the off-site analysis,
the Organization will give due regard to requirements of the
inspected State Party.
11. Transportation of samples will be in accordance with the
procedures outlined in Part E of Attachment 10.
12. If at any time, the inspected State Party or plant site
representative determines that inspection team on-site analysis
activities are not in accordance with the facility agreement or
agreed analysis procedures, or otherwise pose a threat to safety or
environmental regulations or laws, the inspected State Party, in
consultation with the plant site representative, will cease these
on-site analysis activities pending resolution . If both parties
cannot agree to proceed with the analysis, the inspection team will
document this in its preliminary factual findings.
13. Conditions and procedures for the disposal of hazardous
materials generated during sampling and on-site analysis during the
inspection are contained in Part F of Attachment 10 to this
Agreement.
7.5 Arrangements for Interviews
1. The inspection team shall have the right, subject to
applicable United States legal protections for individuals, to
interview any plant site personnel in the presence of
representatives of the inspected State Party with the purpose of
establishing relevant facts in accordance with paragraph 46 of Part
II of the Verification Annex and inspected State Party's policy and
procedures. Agreed procedures for conducting interviews are
contained in Attachment 12.
2. The inspection team will submit to the inspected State Party
names and/or positions of those desired for interviews. The
requested individual(s) will be made available to the inspection
team no later than 24 hours after submission of the formal request,
unless agreed otherwise. The inspection team may also be requested
to submit questions in writing prior to conducting interviews. The
specific timing and location of interviews will be determined with
the plant site in coordination with the inspected State Party and
consistent with adequate notification of the interviewees, and
minimizing the operation impacts on the plant site and individuals
to be interviewed.
3. The inspected State Party may recommend to the inspection
team that interviews be conducted in either ``panel'' or individual
formats. At a minimum, interviews will be conducted with a member of
the plant site staff and an inspected State Party representative.
Legal counsel may also be required to be present by the inspected
State Party. The interview may be interrupted for consultation
between the interviewee, the plant site representative, the
inspected State Party representative, and legal counsel.
4. The inspected State Party will have the right to restrict the
content of interviews to information directly related to the mandate
or purpose of the inspection.
5. Outside the interview process and in discharging their
functions, inspectors shall communicate with personnel of the plant
site only through the representative(s) of the inspected State
Party.
7.6 Communications
1. In accordance with paragraph 44 of Part II of the
Verification Annex, the inspection team shall have the right to
communicate with the headquarters of the Technical Secretariat. For
this purpose they may use their own, duly certified approved
equipment, in accordance with paragraph 1 of Section 5. The
representative of the inspected plant site retains the right to
control the use of communications equipment in specific areas,
building or structures if such use would be incompatible with
applicable safety or fire regulations.
2. In case the inspection team and the inspected State Party
agree to use any of the inspected State Party's communications
equipment, the list of such equipment and the provisions for its use
are contained in Part B of Attachment 5 to this Agreement.
3. The agreed means of communication between inspection team
sub-teams in accordance with paragraph 44 of Part II of the
Verification Annex are contained in Part D of Attachment 5.
7.7 Photographs
1. In accordance with the provisions of paragraph 48 of Part II
of the Verification Annex, the Confidentiality Annex and inspected
State Party's policy and procedures, the inspection team shall have
the right to have photographs taken at their request by the
representatives of the inspected State Party or the inspected plant
site. One camera of the instant development type furnished by the
inspection team or the inspected State Party shall be used for
taking identical photographs in sequence. Cameras furnished by the
inspection team will remain either in their work space or equipment
storage area except when carried by inspection team members for a
specific inspection activity. Cameras will only be used for
specified inspection purposes. Personal cameras are not allowed to
be taken to the plant site.
2. Pursuant to the Confidentiality Annex, the inspected State
Party, in consultation with the plant site representative, shall
have the right to determine that contents of the photographs conform
to the stated purpose of the photographs. The inspection team shall
determine whether photographs conform to those requested and, if
not, repeat photographs shall be taken. Photographs that do not meet
the satisfaction of both sides will be destroyed by the inspected
State Party in the presence of the inspection team. The inspection
team, the inspected State Party and the plant site, if so requested,
shall each retain one copy of every photograph. The copies shall be
signed, dated, and classified, in accordance with Section 3, and
note the location and subject of the photograph and carry the same
identification number. Agreed procedures for photography are
contained in Attachment 13.
3. The representative of the inspected plant site has the right
to object to the use of photographic equipment in specific areas,
buildings or structures if such use would be incompatible with
safety or fire regulations given the characteristics of the
chemicals stored in the area in question. Restrictions for use are
contained in Parts A and/or B of Attachment 5 to this Agreement. If
the objection is raised due to safety concerns, the inspected State
Party will, if possible, furnish photographic equipment that meets
the regulations. If the use of photographic equipment is not
permissible at all in specific areas, buildings or structures for
the reasons stated above, the inspected State Party shall provide a
written explanation of its objection to the inspection team leader.
The explanation, along with the inspection team leader's comments
will be included in the inspection team's preliminary factual
findings.
[[Page 73798]]
Section 8. Debriefing and Preliminary Findings
1. In accordance with paragraph 60 of Part II of the
Verification Annex, upon completion of an inspection the inspection
team shall meet with representatives of the inspected State Party
and the personnel responsible for the inspection site to review the
preliminary findings of the inspection team and to clarify any
ambiguities. The inspection team shall provide to the
representatives of the inspected State Party its preliminary
findings in written form according to a standardized format,
together with a list of any samples and copies of written
information and data gathered and other material to be taken off-
site. The document shall be signed by the head of the inspection
team. In order to indicate that he has taken notice of the content
of this document, the representative of the inspected State Party
shall countersign the document. The meeting shall be completed not
later than 24 hours after the completion of the inspection.
2. The document on preliminary findings shall also include,
inter alia, the list of results of analysis, if conducted on-site,
records of seals, and copies of photographs to be retained by the
inspection team. It will be prepared in accordance with the
preliminary findings format referenced in Annex 5. Any substantive
changes to this format will be made only after consultation with the
inspected State Party.
3. Before the conclusion of the debriefing, the inspected State
Party may provide comments and clarifications to the inspection team
on any issue related to the conduct of the inspection. The
inspection team shall provide to the representative of the inspected
State Party its preliminary findings in written form sufficiently
prior to the conclusion of the debriefing to permit the inspected
State Party to prepare any comments and clarifications. The
inspected State Party's written comments and clarifications shall be
attached to the document on preliminary findings.
4. The inspection team shall depart from the site upon the
conclusion of the meeting on preliminary findings.
Section 9. Administrative Arrangements
1. The inspected State Party shall provide or arrange for the
provision of the amenities listed in detail in Attachment 11 to the
inspection team in a timely manner throughout the duration of the
inspection. The inspected State Party shall be reimbursed by the
Organization for such costs incurred by the inspection team, unless
agreed otherwise.
2. Requests from the inspection team for the inspected State
Party to provide or arrange amenities shall be made in writing by an
authorized member of the inspection team \5\ using the form
contained in Attachment 11. Requests shall be made as soon as the
need for amenities has been identified. The provision of such
requested amenities shall be certified in writing by the authorized
member of the inspection team. Copies of all such certified requests
shall be kept by both parties.
---------------------------------------------------------------------------
\5\ The name of the authorized member(s) of the inspection team
should be communicated to the inspected State Party no later than at
the Point of Entry.
---------------------------------------------------------------------------
3. The inspection team has the right to refuse extra amenities
that in its view are not needed for the conduct of the inspection.
Section 10. Liabilities
1. Any claim by the inspected State Party against the
Organization or by the Organization against the inspected State
Party in respect of any alleged damage or injury resulting from
inspections at the plant site in accordance with this Agreement,
without prejudice to paragraph 22 of the Confidentiality Annex,
shall be settled in accordance with international law and, as
appropriate, with the provisions of Article XIV of the Convention.
Section 11. Status of Attachments
1. The Attachments form an integral part of this Agreement. Any
reference to the Agreement includes the Attachments. However, in
case of any inconsistency between this Agreement and any Attachment,
the sections of the Agreement shall prevail.
Section 12. Amendments, Modifications and Updates
1. Amendments to the sections of this Agreement may be proposed
by either Party and shall be agreed to and enter into force under
the same conditions as provided for under paragraph 1 of Section 14.
2. Modifications to the Attachments of this Agreement, other
than Attachment 1 and Part B of Attachment 5, may be agreed upon at
any time between the representative of the Organization and the
representative of the inspected State Party, each being specifically
authorized to do so. The Director-General shall inform the Executive
Council about any such modifications. Each Party to this Agreement
may revoke its consent to a modification not later than four weeks
after it had been agreed upon. After this time period the
modification shall take effect.
3. The inspected State Party will update Part A of Attachment 1
and Part B of Attachment 5, and Attachment 6 as necessary for the
effective conduct of inspections. The Organization will update Part
B of Attachment 1 and Annex 5, subject to paragraph 2 of Section 8,
as necessary for the effective conduct of inspections.
Section 13. Settlement of Disputes
1. Any dispute between the Parties that may arise out of the
application or interpretation of this Agreement shall be settled in
accordance with Article XIV of the Convention.
Section 14. Entry into Force
1. This Agreement shall enter into force after approval by the
Executive Council and signature by the two Parties. If the inspected
State Party has additional internal requirements, it shall so notify
the Organization in writing by the date of signature. In such cases,
this Agreement shall enter into force on the date that the inspected
State Party gives the Organization written notification that its
internal requirements for entry into force have been met.
Section 15. Duration and Termination.
1. This Agreement shall cease to be in force when the provisions
of paragraph 12 of Part VII of the Verification Annex no longer
apply to this plant site, except if the continuation of the
Agreement is agreed by mutual consent of the Parties.
Done at ______ in ______ copies, in English, each being equally
authentic.\6\
---------------------------------------------------------------------------
\6\ The language(s) to be chosen by the inspected State Party
from the languages of the Convention shall be the same as the
language(s) referred to in paragraph 6 of Section 1 of this
Agreement.
---------------------------------------------------------------------------
Attachments
The following attachments shall be completed where applicable.
Attachment 1: General Factors for the Conduct of Inspections
Attachment 2: Health and Safety Requirements and Procedures
Attachment 3: Specific Arrangements in Relation to the Protection of
Confidential Information at the Plant Site
Attachment 4: Arrangements for the Inspection Team's Contacts with
the Media or the Public
Attachment 5: Inspection Equipment
Attachment 6: Information on the Plant Site Provided in Accordance
with Section 6
Attachment 7: Arrangements for Site Tour
Attachment 8: Access to the Plant Site in Accordance with Section
7.2.
Attachment 9: Records Routinely Made Available to the Inspection
Team at the Plant Site
Attachment 10: Sampling and Analysis for Verification Purposes
Attachment 11: Administrative Arrangements
Attachment 12: Agreed Procedures for Conducting Interviews
Attachment 13: Agreed Procedures for Photography
Attachment 1.--General Factors for the Conduct of Inspections
Part A. To Be Provided and Updated by the inspected State Party:
1. Plant site: ________
(a) working hours: 7 ________ hrs to ________ hrs
(local time) (days)
---------------------------------------------------------------------------
\7\ All references to time use a 24 hour clock.
---------------------------------------------------------------------------
(b) working days:------------------------------------------------------
(c) holidays or other non-working days:--------------------------------
----------------------------------------------------------------------
2. Schedule 2 plant(s):
(a) working hours, if applicable: ________ hrs to ________ hrs
(days)
(b) working days:------------------------------------------------------
(c) holidays or other non-working days:--------------------------------
----------------------------------------------------------------------
3. Inspection activities which could/could not 8 be
supported during non-working hours with notation of times and
activities:
---------------------------------------------------------------------------
\8\ Choose one option.
---------------------------------------------------------------------------
----------------------------------------------------------------------
4. Any other factors that could adversely affect the effective
conduct of inspections:
(a) inspection requests:
Should the plant site withhold consent to an inspection, the
inspected State Party shall take all appropriate action under its
law to obtain a search warrant from a United States magistrate
judge. Upon receipt of a warrant, the inspected State Party will
accede to the
[[Page 73799]]
Organization's request to conduct an inspection. Such inspection
will be carried out in accordance with the terms and conditions of
the warrant.
(b) other:
----------------------------------------------------------------------
----------------------------------------------------------------------
5. Other: Notification procedures are contained in Annex 6.
Part B. To Be Provided and Updated by the Organization:
1. Inspection frequency:-----------------------------------------------
2. Inspection intensity:
(a) maximum estimated period of inspection (for planning purposes):
9-----------------------------------------------------------
---------------------------------------------------------------------------
\9\ Any figure indicated is without prejudice to paragraph 29 of
Part VII of the Verification Annex.
---------------------------------------------------------------------------
(b) approximate inspection team size:----------------------------------
(c) estimated volume and weight of equipment to be brought on-site:----
Attachment 2.--Health and Safety Requirements and Procedures
Part A. Basic Principles:
1. Applicable health and safety regulations of the Organization,
with agreed variations from strict implementation, if any:
----------------------------------------------------------------------
2. Health and safety regulations applicable at the plant site:
(a) federal regulations:
----------------------------------------------------------------------
(b) state regulations:
----------------------------------------------------------------------
(c) local regulations:
----------------------------------------------------------------------
(d) plant site regulations:
----------------------------------------------------------------------
3. Health and safety requirements and regulations agreed between
the inspected State Party and the Organization:
----------------------------------------------------------------------
Part B. Detection and Monitoring:
1. Applicable specific safety standards for workplace chemical
exposure limits and/or concentrations which should be observed
during the inspection, if any:
----------------------------------------------------------------------
2. Procedures, if any, for detection and monitoring in
accordance with the Organization's Health and Safety Policy,
including data to be collected by, or provided to, the inspection
team:
----------------------------------------------------------------------
Part C. Protection:
1. Protective equipment to be provided by the Organization and
agreed procedures for equipment certification and use, if required:
----------------------------------------------------------------------
2. Protective equipment to be provided by the inspected State
Party, and agreed procedures, personnel training, and personnel
qualification tests and certification required; and agreed
procedures for use of the equipment:
----------------------------------------------------------------------
Part D. Medical Requirements:
1. Applicable medical standards of the inspected State Party
and, in particular, the inspected plant site:
----------------------------------------------------------------------
2. Medical screening procedures for members of the inspection
team:
----------------------------------------------------------------------
3. Agreed medical assistance to be provided by the inspected
State Party:
----------------------------------------------------------------------
4. Emergency medical evacuation procedures:
----------------------------------------------------------------------
5. Agreed additional medical measures to be taken by the
inspection team:
----------------------------------------------------------------------
6. Procedures for emergency response to chemical casualties of
the inspection team:
----------------------------------------------------------------------
Part E. Modification of Inspection Activities:
1. Modification of inspection activities due to health and
safety reasons, and agreed alternatives to accomplish the inspection
goals:
----------------------------------------------------------------------
Attachment 3.--Specific Arrangements in Relation to the Protection of
Confidential Information at the Plant Site
Part A. Inspected State Party's Procedures for Designating and
Classifying Documents Provided to the Inspection Team:
See Annex 3 for the Organization's Policy on Confidentiality and
Annex 7 for the inspected State Party's Procedures for Information
Control.
Part B. Specific Procedures for Access by the Inspection Team to
Confidential Areas or Materials:
----------------------------------------------------------------------
Part C. Procedures in Relation to the Certification by the
Inspection Team of the Receipt of Any Documents Provided by the
Inspected Plant Site:
----------------------------------------------------------------------
----------------------------------------------------------------------
Part D. Storage of Confidential Documents at the Inspected Plant
Site:
1. Procedures in relation to the storage of confidential
documents or use of a dual control container on-site, if applicable:
Information under restrictions provided for in the
Confidentiality Annex and as such to be kept in the dual control
container under joint seal shall be available to the inspection team
leader and/or an inspector designated by him from the beginning of
the pre-inspection briefing until the end of the debriefing upon
completion of the inspection in accordance with Section 3. If copies
of information under dual control are permitted to be attached to
the preliminary factual findings by the inspected State Party, they
shall be made by the inspected State Party and retained under dual
control until the debriefing. Should the medium on which such
information is recorded become unusable, it shall be replaced
without delay by the representative of the inspected State Party.
2. The dual control container will be placed-------------------------
----------------------------------------------------------------------
3. Information meeting the strict requirements for restriction
pursuant to the Confidentiality Annex, and to be maintained in the
dual control container located at the inspected plant site between
inspections is listed below:
----------------------------------------------------------------------------------------------------------------
Reasons for
Reference Type of data Recorded media Volume restrictions/
remarks
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Part E. Procedures for the Removal Off-Site of Any Written
Information, Data, and Other Materials Gathered by the Inspection
Team:
----------------------------------------------------------------------
Part F. Procedures for Providing the Representatives of the
inspected State Party with Copies of Written Information,
Inspector's Notebooks, Data and Other Material Gathered by the
Inspection Team:
----------------------------------------------------------------------
Part G. Other Arrangements, If Any:
1. Unless specified otherwise, all plant site information shall
be returned to the inspected State Party at the completion of the
inspection. No copies of plant site information shall be made in any
manner by the inspection team or the Organization.
2. Plant site information shall not be released to the public,
other States Parties, or the media without the specific permission
of the inspected State Party, after consultation with the plant
site.
3. Plant site information shall not be transmitted, copied or
retained electronically without the specific permission of the
inspected State Party after consultation with the plant site. All
transmissions of information off-site shall be done in the presence
of the inspected State Party.
4. Information not relevant to the purpose of the inspection
will be purged from documents, photographs, etc. prior to release to
the inspection team.
Attachment 4.--Arrangements for the Inspection Team's Contacts with the
Media or the Public
Attachment 5.--Inspection Equipment
Part A: List of Equipment:
[[Page 73800]]
----------------------------------------------------------------------------------------------------------------
Agreed procedures
for use
-------------------- Indication of Alternative for
Item of approved inspection Nature of reason(s) (safety, Special handling meeting inspection
equipment restrictions(s) confidentiality, or storage requirement(s), if
(location, time, etc.) requirements so required by the
periods, etc.), if inspection team
any
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Part B. Equipment which the inspected State Party Has
Volunteered to Provide:
----------------------------------------------------------------------------------------------------------------
Support to be provided, Conditions (timing,
Item of equipment Procedures for use if required costs, if any)
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Part C. Procedures for the Decontamination of Equipment:
------------------------------------------------------------------------
Item of equipment Procedures for use
------------------------------------------------------------------------
------------------------------------------------------------------------
Part D. Means of Communication between Inspection Team Sub-
Teams:
----------------------------------------------------------------------
Request for and Certification of Equipment Available on Site To Be
Provided in Accordance With Paragraph 3 of Section 5
Date:------------------------------------------------------------------
Plant Site:------------------------------------------------------------
Inspection number:-----------------------------------------------------
Name of the authorized member of the inspection team:------------------
Type and number of item(s) of equipment requested:---------------------
Approval of the request by inspected State Party:----------------------
Comments on the request by the inspected State Party:------------------
Indication of the costs, if any, for the use of the equipment
requested/volunteered:
----------------------------------------------------------------------
Certification of the authorized member of the inspection team that
the requested item(s) of equipment have been provided:
----------------------------------------------------------------------
Comments, if any, by the authorized member of the inspection team in
regard to the equipment provided:
----------------------------------------------------------------------
Name and signature of the authorized member of the inspection team:----
----------------------------------------------------------------------
Name and signature of the representative of the inspected State Party:-
----------------------------------------------------------------------
Attachment 6.--Information on the Plant Site Provided in Accordance
With Section 6
Part A. Topics of Information for the Pre-Inspection Briefing:
----------------------------------------------------------------------
Part B. Any Information about the Plant Site that the inspected
State Party Volunteers to Provide to the Inspection Team during the
Pre-Inspection Briefing and which May Be Transferred Off-Site:
----------------------------------------------------------------------
Attachment 7.--Arrangements for Site Tour
The inspected State Party, in consultation with the plant site,
may provide a site tour at the request of the inspection team. Such
tour shall take no more than 2 hours. If a site tour is conducted,
the inspected State Party may provide explanations to the inspection
team during the site tour.
Attachment 8.--Access to the Plant Site in Accordance With Section 7.2
Part A. Areas of the Declared Plant Site to which Inspectors Are
Granted Access (i.e., detail the areas, equipment, and computers):
1. Declared Plant:10,11
---------------------------------------------------------------------------
\10\ Plant means a relatively self-contained area, structure or
building containing one or more units with auxiliary and associated
infrastructure, such as:
\11\ Areas to be inspected may include:
(a) small administrative section;
(b) storage/handling areas for feedstock and products;
(c) effluent/waste handling/treatment area;
(d) control/analytical laboratory;
(e) first aid service/related medical section;
(f) 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.
(a) areas where feed chemicals (reactants) are delivered or
stored;
(b) areas where manipulative processes are performed upon the
reactants prior to addition to the reaction vessels;
(c) feed lines as appropriate from the areas referred to in
subparagraph (a) or subparagraph (b) to the reaction vessels
together with any associated valves, flow meters, etc.;
(d) the external aspect of the reaction vessels and ancillary
equipment;
(e) lines from the reaction vessels leading to long-or short-
term storage or to equipment further processing the declared
Schedule 2 chemicals;
(f) control equipment associated with any of the items under
subparagraphs (a) to (e);
(g) equipment and areas for waste and effluent handling;
(h) equipment and areas for disposition of chemicals not up to
specification.
---------------------------------------------------------------------------
2. Declared Plant Site: 12
---------------------------------------------------------------------------
\12\ 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:
(a) administration and other offices;
(b) repair and maintenance shops;
(c) medical center;
(d) utilities;
(e) central analytical laboratory;
(f) research and development laboratories;
(g) central effluent and waste treatment area; and
(h) warehouse storage.
---------------------------------------------------------------------------
Part B. Arrangements with Regard to the Scope of the Inspection
Effort in Agreed Areas Referenced in Part A: 13
---------------------------------------------------------------------------
\13\ List the areas, equipment, and computers, if any, that are
not relevant to the inspection mandate or that contain confidential
business information that does not need to be divulged in order to
comply with the inspection mandate.
---------------------------------------------------------------------------
----------------------------------------------------------------------
Attachment 9.--Records Routinely Made Available to the Inspection Team
at the Plant Site: 14
---------------------------------------------------------------------------
\14\ Some illustrative examples of records and data to be
detailed are given below. The actual list will be dependent on the
specifics of the inspection site. Information about the format and
language in which records are kept at the plant site should be
mentioned. It is understood that confidential information not
related to the implementation of the Convention, such as prices,
will be excluded by the State Party from scrutiny.
(a) inventory and accountancy records in relation to the
production, processing or consumption of the declared Schedule 2
chemicals and their storage or transportation on to or off the site;
(b) operational records for the unit(s) producing, processing or
consuming Schedule 2 chemicals (units) (batch cards, log books);
(c) Schedule 2 plant(s) dispatch records within the plant site
and off-site dispatches;
(d) Schedule 2 plant(s) maintenance schedule records;
(e) Schedule 2 plant(s) waste disposal records;
(f) Schedule 2 plant(s) (unit) calibration records;
(g) Schedule 2 plant(s) sales reports, as appropriate;
(h) sales or transfers, whether to another industry, trader, or
other destination, and if possible, of final product types;
(i) data on direct exports/imports and to/from which States;
(j) other shipments, including specification of these other
purposes; and (k) other.
---------------------------------------------------------------------------
Attachment 10.--Sampling and Analysis for Verification Purposes
Part A. Agreed Sampling Points Chosen with Due Consideration to
Existing Sampling Points Used by the Plant(s) Operator(s):
[[Page 73801]]
----------------------------------------------------------------------
Part B. Procedures for Taking Samples:
----------------------------------------------------------------------
Part C. Procedures for Sample Handling and Sample Splitting:
----------------------------------------------------------------------
Part D. Procedures for Sample Analysis:
----------------------------------------------------------------------
Part E. Procedures for Transporting Samples:
----------------------------------------------------------------------
Part F. Arrangements in Regard to the Payment of Costs
Associated with the Disposal or Removal by the inspected State Party
of Hazardous Waste Generated during Sampling and On-Site Analysis
during the Inspection:
----------------------------------------------------------------------
Attachment 11.--Administrative Arrangements
Part A. The Amenities Detailed Below Shall Be Provided to the
Inspection Team by the inspected State Party, Subject to Payment as
Indicated in Part B Below:
1. International and local official communication (telephone, fax),
including calls/faxes between site and headquarters:
----------------------------------------------------------------------
2. Vehicles:-----------------------------------------------------------
3. Working room, including adequate space for the storage of
equipment:
----------------------------------------------------------------------
4. Lodging:------------------------------------------------------------
5. Meals:--------------------------------------------------------------
6. Medical care:-------------------------------------------------------
7. Interpretation Services:
(a) number of interpreters:--------------------------------------------
(b) estimated interpretation time:-------------------------------------
(c) languages:---------------------------------------------------------
8. Other:
----------------------------------------------------------------------
Part B. Distribution of Costs for Provision of Amenities by the
inspected State Party (check one option for each amenity provided as
appropriate):
----------------------------------------------------------------------------------------------------------------
To be paid by the To be paid by the
To be paid directly by inspection team on inspected State Party
Paragraphs 1-8 the Organization after behalf of the and subsequently To be paid by the
in Part A above the inspection Organization during reimbursed by the inspected State Party
the in-country period Organization
----------------------------------------------------------------------------------------------------------------
1
2
3
4
5
6
7
8
----------------------------------------------------------------------------------------------------------------
Part C. Other Arrangements.
1. Number of sub-teams (consisting of no less than two
inspectors per sub-team) to be accommodated: ____________
Request for and Certification of Amenities to be Provided or Arranged
Date:------------------------------------------------------------------
Plant site:------------------------------------------------------------
Inspection number:-----------------------------------------------------
Category of amenities requested:---------------------------------------
Description of amenities requested:------------------------------------
Approval of the request by the inspected State Party:------------------
Comments on the request by the inspected State Party:
----------------------------------------------------------------------
Indication of the costs for the amenities requested:-------------------
Certification of the authorized member of the inspection team that
the requested amenities have been provided:
----------------------------------------------------------------------
Comments by the authorized member of the inspection team in regard
to the quality of the amenities provided:
----------------------------------------------------------------------
Name and signature of the authorized member of the inspection team:
----------------------------------------------------------------------
Name and signature of the representative of the inspected State
Party:
----------------------------------------------------------------------
Attachment 12.--Agreed Procedures for Conducting Interviews
----------------------------------------------------------------------
----------------------------------------------------------------------
Attachment 13.--Agreed Procedures for Photography
Annexes
Note: These annexes, inter alia, can be attached if requested by the
inspected State Party
Annex 1: Organization's Media and Public Relations Policy
Annex 2: Organization's Health and Safety Policy and Regulations
Annex 3: Organization's Policy on Confidentiality
Annex 4: Plant Site Declaration
Annex 5: Preliminary and Final Inspection Report Formats
Annex 6: Inspected State Party's Procedures for Inspection
Notification
Annex 7: Inspected State Party's Procedures for Information Control
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.
Authority: 22 U.S.C. 6701 et seq., 2681; E.O. 13128, 64 FR
36703.
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. If States Parties are unable to resolve such issues
through consultation between themselves or through the Organization for
the Prohibition of Chemical Weapons (OPCW), 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 (parts 710 through
722 of this subchapter) must, within five working days, provide
information required by the Department of Commerce pursuant to an
Article IX clarification request from another State Party, or the OPCW,
concerning possible non-compliance with the reporting, declaration,
notification, or inspection requirements set forth in parts 712 through
716 of this subchapter.
[[Page 73802]]
Sec. 717.2 Challenge inspections.
Any person or facility subject to the CWCR (see Sec. 710.2 of this
subchapter), whether or not 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. The
Department of Commerce will host and escort the international
Inspection Team for all challenge inspections of persons or facilities
subject to the CWCR concerning possible non-compliance with the
requirements set forth in parts 712 through 716 of this subchapter.
(a) Warrants. In instances where consent is not provided by the
owner, operator, occupant or agent in charge of the facility or
location, the Department of Commerce 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. The Department of Commerce will
provide Host Team notification to the inspection point of contact if
such notification is deemed appropriate. If the United States is unable
to provide actual written notice to the owner, operator, or agent in
charge, the Department of Commerce, or if the Department of Commerce is
unable, another appropriate agency, 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 inspectors; and
(E) All appropriate evidence or reasons provided by the requesting
State Party for seeking the inspection.
(ii) In addition to appropriate information provided by the OPCW in
its notification to the USNA, the Department of Commerce's Host Team
notification to the facility or plant site 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.
(c) Period of inspection. Challenge inspections will not exceed 84
hours, unless extended by agreement between the Inspection Team and the
Host Team Leader.
(d) Scope and conduct of inspections. (1) General. Each inspection
shall be limited to the purposes described in this section and
conducted in the least intrusive manner, consistent with the effective
and timely accomplishment of its purpose as provided in the Convention.
(2) Scope of inspections. If an owner, operator, occupant, or agent
in charge of a facility 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. A challenge inspection
will also be conducted in accordance with a facility agreement, if a
facility agreement has been concluded for the subject facility, to the
extent the terms of the facility agreement are relevant to the
challenge inspection request.
(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.
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.
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 BXA 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 BXA 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.''
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.
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;
[[Page 73803]]
(h) Data on personnel and vehicles entering and personnel passenger
vehicles exiting the facility;
(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
BXA 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
BXA 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) BXA 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): BXA 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 notifications.
Information contained in advance notifications of exports and imports
of Schedule 1 chemicals is not subject to the confidential business
information provisions of the Act. You must identify information in
your 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
BXA 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
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 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 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 inspectors 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
[[Page 73804]]
information it provides to the Technical Secretariat in declarations,
reports and Schedule 1 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 this subchapter provides that all hearings will be closed, unless
the Administrative Law Judge for good cause shown determines otherwise.
Section 719.20 of this subchapter provides that parties may request
that the administrative law judge segregate and restrict access to
confidential business information contained in material in the record
of an enforcement proceeding.
(4) Disclosure to the public; national interest determination.
Section 404(c) of the Act provides that confidential business
information, as defined by the Act, that is in the possession of the
U.S. Government, is exempt from public disclosure in response to a
Freedom of Information Act request, except when such disclosure is
determined to be in the national interest.
(i) National interest determination. The United States National
Authority (USNA), in coordination with the CWC interagency group, shall
determine on a case-by-case basis if disclosure of confidential
business information in response to a Freedom of Information Act
request is in the national interest.
(ii) Notification of intent to disclose pursuant to a national
interest determination. The Act provides for notification to the
affected person of intent to disclose confidential business information
based on the national interest, unless such notification of intent to
disclose is contrary to national security or law enforcement needs. If,
after coordination with the agencies that constitute the CWC
interagency group, the USNA does not determine that such notification
of intent to disclose is contrary to national security or law
enforcement needs, the USNA will notify the person that submitted the
information and the person to whom the information pertains of the
intent to disclose the information.
Supplement No. 1 to Part 718.--Confidential Business Information
Declared or Reported *
------------------------------------------------------------------------
Fields containing
confidential business
information
------------------------------------------------------------------------
Schedule 1 Forms:
Certification Form.................... None.
Form 1-1.............................. None.
Form 1-2.............................. All fields.
Form 1-2A............................. All fields.
Form 1-2B............................. All fields.
Form 1-3.............................. All fields.
Form 1-4.............................. All fields.
Schedule 2 Forms:
Certification Form.................... None.
Form 2-1.............................. None.
Form 2-2.............................. Questions 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
Schedules and UDOCs). identified by submitter.
------------------------------------------------------------------------
* This table lists those data fields on the Declaration and Report Forms
that request ``confidential business information'' (CBI) as defined by
the Act (sections 103(g) and 304(e)(2)). As provided by section 404(a)
of the Act, CBI is exempt from disclosure in response to a Freedom of
Information Act (FOIA) request under sections 552(b)(3) and 552(b)(4)
(5 U.S.C.A. 552(b)(3)-(4)), unless a determination is made, pursuant
to section 404(c) of the Act, that such disclosure is in the national
interest. Other FOIA exemptions to disclosure may also apply. You must
identify CBI provided in Form A and/or Form B attachments, and provide
the reasons supporting your claim of confidentiality, except that
Schedule 1 facility technical descriptions submitted with initial
declarations are always considered to include CBI. If you believe that
information you are submitting in a data field marked ``none'' in the
Table is CBI, as defined by the Act, you must identify the specific
information and provide the reasons supporting your claim of
confidentiality in a cover letter.
PART 719--ENFORCEMENT
Sec.
719.1 Scope and definitions.
719.2 Violations of the Act subject to administrative and criminal
enforcement proceedings.
719.3 Violations of the IEEPA subject to judicial enforcement
proceedings.
719.4 Violations and sanctions under the Act not subject to
proceedings under this subchapter.
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.
[[Page 73805]]
Sec. 719.1 Scope and definitions.
(a) Scope. This part 719 describes the various sanctions that apply
to violations of the Act and this subchapter. 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. The Department of Commerce
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 Secs. 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. The Department of Commerce 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 this subchapter. Section 719.4 sets forth violations
and sanctions under the Act that are not violations of this subchapter
and that are not subject to proceedings under this subchapter. This
section is included solely for informational purposes. The Department
of Commerce may assist in investigations of these violations, but has
no authority to initiate any enforcement action under this subchapter.
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 Export Administration, United States
Department of Commerce.
Final decision. A decision or order assessing a civil penalty, or
otherwise disposing of or dismissing a case, which is not subject to
further administrative review, but which may be subject to collection
proceedings or judicial review in an appropriate Federal court as
authorized by law.
IEEPA. The International Emergency Economic Powers Act, as amended
(50 U.S.C. 1701-1706).
Office of Chief Counsel. The Office of Chief Counsel for Export
Administration, United States Department of Commerce.
Report. For purposes of parts 719 and 720 of this subchapter, the
term ``report'' means any declaration, report, or notification required
under parts 712 through 715 of this subchapter.
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 for Export Administration. The Under Secretary for
Export Administration, Bureau of Export Administration, 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 this subchapter;
or
(iii) To permit access to or copying of any record that is exempt
from disclosure under the Act or this subchapter.
(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 this subchapter, 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 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 this
subchapter 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. 712.1 of this
subchapter, no person may import any Schedule 1 chemical (See
Supplement No. 1 to part 712 of this subchapter) 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 the Department of Commerce
45 calendar days prior to the import pursuant to Sec. 712.4 of this
subchapter.
(2) Import restrictions involving Schedule 2 chemicals. Except as
otherwise provided in Sec. 713.1 of this subchapter, no person may, on
or after April 29, 2000, import any Schedule 2 chemical (see Supplement
No. 1 to part
[[Page 73806]]
713 of this subchapter) 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.
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Sec. 719.4 Violations and sanctions under the Act not subject to
proceedings under this subchapter.
(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:
(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 Export
Administration, 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 Export Administration, may notify a
respondent by letter of the intent to charge. This letter of intent to
charge will advise a respondent that the Department of Commerce 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 BXA 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 BXA within the
specified time, or if the respondent requests it, BXA 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 days from the 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 believes 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.
[[Page 73807]]
(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 this subchapter, 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 Export
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Room H-3839, Washington, D.C. 20230, or
faxed to (202) 482-0085. Service on a respondent shall be to the
address to which the NOVA and proposed order was sent, or to such other
address as the respondent may provide. When a party has appeared by
counsel or other representative, service on counsel or other
representative shall constitute service on that party.
(c) Date. The date of filing or service is the day when the papers
are deposited in the mail or are delivered in person, by delivery
service, or by facsimile. Refusal by the person to be served, or by the
person's agent or attorney, of service of a document or other paper
will be considered effective service of the document or other paper as
of the date of such refusal.
(d) Certificate of service. A certificate of service signed by the
party making service, stating the date and manner of service, shall
accompany every paper, other than the NOVA and proposed order, filed
and served on the parties.
(e) Computation of time. In computing any period of time prescribed
or allowed by this part, the day of the act, event, or default from
which the designated period of time begins to run is not to be
included. The last day of the period so computed is to be included
unless it is a Saturday, a Sunday, or a legal holiday (as defined in
Rule 6(a) of the Federal Rules of Civil Procedure), in which case the
period runs until the end of the next day which is neither a Saturday,
a Sunday, nor a legal holiday. Intermediate Saturdays, Sundays, and
legal holidays are excluded from the computation when the period of
time prescribed or allowed is 7 days or less.
Sec. 719.9 Summary decision.
The ALJ may render a summary decision disposing of all or part of a
proceeding on the motion of any party to the proceeding, provided that
there is no genuine issue as to any material fact and the party is
entitled to summary decision as a matter of law.
Sec. 719.10 Discovery.
(a) General. The parties are encouraged to engage in voluntary
discovery regarding any matter, not privileged, which is relevant to
the subject matter of the pending proceeding. The provisions of the
Federal Rules of Civil Procedure relating to discovery apply to the
extent consistent with this part and except as otherwise provided by
the ALJ or by waiver or agreement of the parties. The ALJ may make any
order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense. These
orders may include limitations on the scope, method, time and place of
discovery, and provisions for protecting the confidentiality of
classified or otherwise sensitive information, including Confidential
Business Information (CBI) as defined by the Act.
(b) Interrogatories and requests for admission or production of
documents. A party may serve on any party interrogatories, requests for
admission, or requests for production of documents for inspection and
copying, and a party concerned may apply to the ALJ for such
enforcement or protective order as that party deems warranted with
respect to such discovery. The service of a discovery request shall be
made at least 20 days before the scheduled date of the hearing unless
the ALJ specifies a shorter time period. Copies of interrogatories,
requests for admission and requests for production of documents and
responses thereto shall be served on all parties and a copy of the
certificate of service shall be filed with the ALJ. Matters of fact or
law of which admission is requested shall be deemed admitted unless,
within a period designated in the request (at least 10 days after
service, or within such additional time as the ALJ may allow), the
party to whom the request is directed serves upon the requesting party
a sworn statement either denying specifically the matters of which
admission is requested or setting forth in detail the reasons why the
party to whom the request is directed cannot truthfully either admit or
deny such matters.
(c) Depositions. Upon application of a party and for good cause
shown, the ALJ may order the taking of the testimony of any person by
deposition and the production of specified documents or materials by
the person at the deposition. The application shall state the purpose
of the deposition and set forth the facts sought to be established
through the deposition.
(d) Enforcement. The ALJ may order a party to answer designated
questions, to produce specified documents or things or to take any
other action in response to a proper discovery request. If a party does
not comply with such an order, the ALJ may make a determination or
enter any order in the proceeding as the ALJ deems reasonable and
appropriate. The ALJ may strike related charges or defenses in whole or
in part or may take particular facts relating to the discovery request
to which the party failed or refused to respond as being established
for purposes of the proceeding in
[[Page 73808]]
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 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
[[Page 73809]]
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, N.W.,
Room 5519, Washington, D.C. 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 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 Assistant Secretary will 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 made available for public inspection in the BXA
Freedom of Information Records Inspection Facility, U.S. Department of
Commerce, Room H-6624, 14th Street and Pennsylvania Avenue, N.W.,
Washington, D.C. 20230. 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 date upon which the final order becomes
effective, or within the time 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 these
CWCR (this subchapter). 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
this subchapter has occurred or may occur, that person may notify:
Office of Export Enforcement, Bureau of Export Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W., Room
H-4520, Washington, D.C. 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.
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
[[Page 73810]]
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. BXA will notify any person convicted of Section 229,
Title 18, United States Code, of BXA'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 BXA 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 BXA
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
this subchapter.
(b) Initial decision and order. After considering the entire record
in the proceeding, the ALJ will issue an initial decision and order,
based on a preponderance of the evidence. The ALJ may consider factors
such as the seriousness of the criminal offense that is the basis for
conviction, the nature and duration of the criminal sanctions imposed,
and whether the person has undertaken any corrective measures. The ALJ
may dismiss the proceeding if the evidence is insufficient to sustain a
denial of export privileges, or may issue an order imposing a denial of
export privileges for the length of time the ALJ deems appropriate. An
order denying export privileges may be standard or non-standard, as
provided in Supplement No. 1 to part 764 of the Export Administration
Regulations (15 CFR parts 730 through 799). The initial decision and
order will be served on each party, and will be published in the
Federal Register as the final decision of the Department of Commerce 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 for
Export Administration for review of the initial decision and order. A
petition for review must be filed with the Office of Under Secretary
for Export Administration, Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 20230, and shall be served
on the Office of Chief Counsel for Export Administration 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 for Export Administration
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 for
Export Administration 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.
Sec. 721.1 Inspection of records.
Upon request by the Department of Commerce or any other agency of
competent jurisdiction, you must permit access to and copying of any
record relating to compliance with the requirements of this subchapter.
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) General. Each facility required to submit a declaration, report
or notification under parts 712 through 715 of this subchapter must
retain all supporting materials and documentation used by a unit,
plant, facility and plant site to prepare such declaration, report or
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 notification, or for five years from the date
of submission of the applicable declaration, report or notification,
whichever is later. Due dates for declarations, reports and
notifications are provided in parts 712 through 715 of this subchapter.
(c) Location of records. If a facility is subject to inspection
under part 716 of this subchapter, 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 this subchapter, records retained under
[[Page 73811]]
this section may be maintained either at the facility subject to a
declaration, report, or 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.
(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 the Department of Commerce 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).
Dated: December 16, 1999.
R. Roger Majak,
Assistant Secretary for Export Administration.
[FR Doc. 99-33149 Filed 12-30-99; 8:45 am]
BILLING CODE 3510-33-P
