[Federal Register Volume 64, Number 139 (Wednesday, July 21, 1999)]
[Proposed Rules]
[Pages 39194-39244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18230]
[[Page 39193]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
Bureau of Export Administration
_______________________________________________________________________
Department of State
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Bureau of Arms Control
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15 CFR Parts 710 Through 721 and 22 CFR Part 103
Regulations Implementing Provisions of the Chemical Weapons Convention
and the Chemical Weapons Convention Implementation Act of 1998 on the
Taking of Samples and on Enforcement of Requirements Concerning Record
Keeping and Inspections; Proposed Rules
Federal Register / Vol. 64, No. 139 / Wednesday, July 21, 1999 /
Proposed Rules
[[Page 39194]]
DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 710 Through 721
[Docket No. 990611158-9158-01]
RIN 0694-AB06
Chemical Weapons Convention Regulations
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: On April 25, 1997, the United States ratified the Convention
on the Prohibition of the Development, Production, Stockpiling and Use
of Chemical Weapons and on Their Destruction, also known as the
Chemical Weapons Convention (CWC or Convention). The Bureau of Export
Administration is proposing to establish the Chemical Weapons
Convention Regulations (CWCR) to implement provisions of the Convention
affecting U.S. industry and other U.S. persons. The proposed 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: Comments must be received by August 20, 1999.
ADDRESSES: Written comments should be sent to Nancy Crowe, 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 Nancy Crowe , Regulatory Policy Division,
telephone: (202) 482-2440 or e-mail: [email protected] For program
information, contact Charles Guernieri, Director, Treaty Compliance
Division, Office of Chemical and Biological Controls and Treaty
Compliance, telephone: (202) 501-7876; for legal questions, contact
Cecil Hunt, Deputy Chief Counsel, Office of the Chief Counsel for
Export Administration, telephone (202) 482-5301.
SUPPLEMENTARY INFORMATION:
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 listed or ``Scheduled'' chemicals, many of
which have significant commercial applications. The Convention also
requires States Parties to report imports and exports and to impose
import and export 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 in 2001, unless the
Conference of States Parties decides otherwise. 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 data on
imports and exports 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'') (Pub. L. 105-277, Division I), 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 No. 13128, among other things, delegates authority to the
Department of Commerce to promulgate regulations, obtain and execute
warrants, provide assistance to certain facilities, and carry out
appropriate functions to implement the 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 Executive Order 12938, as revised by
E.O. No. 13128.
[[Page 39195]]
The Departments of State and Commerce are implementing CWC export
restrictions under their respective export control authorities.
Other State and Commerce Department Regulations Implementing
Requirements of the Chemical Weapons Convention
In addition to these proposed Chemical Weapons Convention
Regulations, the Department of State is publishing a separate proposed
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 (22 CFR 120-130).
Further, on May 18, 1999, BXA published an interim rule (64 FR
27138) that implemented the following export control 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 Commerce
Department jurisdiction to non-States Parties;
--Prohibition on all reexports of Schedule 1 chemicals subject to
Commerce Department jurisdiction;
--Prohibition on exports of Schedule 2 chemicals subject to Commerce
Department 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
Commerce Department jurisdiction to all destinations, including Canada.
Note that all existing export license requirements that apply to CWC
Scheduled chemicals and UDOCs subject to Commerce Department
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 Commerce
Department or State Department export licensing jurisdiction.
The Chemical Weapons Convention Regulations (CWCR)
This proposed rule implements reporting and inspection requirements
and import restrictions. The CWCR:
--Apply to all U.S. persons and facilities in the United States, except
for Department of Defense and Department of Energy facilities and other
U.S. Government agencies that notify the United States National
Authority 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 proposed 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 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, 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. Declared Schedule 1, 2 and 3 facilities
will provide import and export data on declared chemicals as part of
their annual declarations. 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. Import and export data contained in
declarations will also be compiled and added to import and export
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 will be due to BXA within 90 days after the date of
publication of the CWCR as a final rule. Facilities that produced more
than 100 grams aggregate of Schedule 1 chemicals in calendar year 1997
must provide a technical description of their facilities. Facilities
that produced, processed or consumed more than specified quantities of
a Schedule 2 chemical in any of calendar years 1994, 1995 or 1996 must
provide data on activities involving this 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 data 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 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
[[Page 39196]]
and 1998 will be due to the Department of Commerce within 90 days of
the publication of the CWCR as a final rule.
Annual declarations on anticipated 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. The due date for annual
declarations on anticipated activities will be determined when the CWCR
is published as a final rule.
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 within 90 days after publication of the CWCR
as a final rule.
Amended declarations. The CWCR also provide for submission of
``amended declarations'' to correct errors and to declare additionally
planned activities after the submission of the annual declarations of
anticipated activities.
Notification Requirements. Facilities that intend to import or
export Schedule 1 chemicals to States Parties or to begin production of
Schedule 1 chemicals in excess of 100 grams aggregate per year 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 imported
or exported a Scheduled chemical but have not produced, processed, or
consumed declarable quantities of that chemical may nevertheless have
an import or export reporting requirement. The United States National
Authority will NOT forward facility-specific information contained in
these reports to the OPCW. BXA will include the import and export data
in the compilation of the U.S. national aggregate declaration on
imports and exports of relevant chemicals.
Initial reports on imports and exports. Initial reports for imports
and exports are required for imports and exports of Schedule 2 and
Schedule 3 chemicals above certain threshold quantities during calendar
year 1996.
Annual reports on imports and exports. Annual reports for imports
and exports are required for all imports and exports of Schedule 1
chemicals during the previous calendar year, and for imports and
exports of Schedule 2 and 3 chemicals above certain threshold
quantities during the previous calendar year, beginning with 1997.
The first declaration and report package due to the Department of
Commerce will include the initial declaration plus the annual
declarations for calendar years 1997 and 1998 activities, and may also
include the annual declaration on activities anticipated for calendar
year 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. 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 handbook (including instructions and forms), the CWCR
prevail.
On-Site Inspection Requirements
This proposed 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 U.S. 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 or
challenge 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 preliminary notice to facilities to
be inspected. The Department of Commerce will also obtain an
administrative warrant, as provided for by section 305 of the Act and
in Executive Order No. 13128, if the owner or person in charge of the
facility does not consent to the inspection.
Part-by-Part Analysis
The Chemical Weapons Convention Regulations will include 21 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 and inspection provisions
of the Convention.
Part 711--General Information Regarding Reporting 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. A supplement to
this part includes information on protection of confidential business
information.
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), imports, exports,
[[Page 39197]]
domestic transfers and storage of any quantity of Schedule 1 chemicals.
This part provides that facilities that produce more than 100 grams 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 changes in
production of Schedule 1 chemicals. 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 requires prior notification of all
exports of Schedule 1 chemicals and annual reports of exports of such
chemicals. Upon publication of the CWCR as a final rule, the EAR will
be amended to remove the duplicate advance notification and other
reporting provisions for exports of Schedule 1 chemicals. The export
license requirements pertaining to Schedule 1 chemicals, and other
scheduled chemicals, will continue to be set forth in the EAR. 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 country that is not a party to the Convention.
(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 Schedule 2 chemicals in excess of
specified quantities; and imports and exports 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 any changes to the declarations on anticipated
activities that results in an increase of anticipated production,
processing or consumption by 20% or more. Declaration 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 purposes only if the
concentration of the Schedule 2 chemical in the mixture is:
--10% or more by volume or by weight, whichever yields the lesser
percent, for activities involving either production or consumption of a
mixture containing a Schedule 2 chemical; or
--30% or more by volume or by weight, whichever yields the lesser
percent, for activities involving the processing of a mixture
containing a Schedule 2 chemical.
If the mixture contains more than the stated percentage concentration
for the activity (i.e., more than 10% for production or consumption
activities or more than 30% for processing activities), 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 Schedule 3 chemical in
excess of specified quantities; and imports and exports 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 any
changes to the declaration of anticipated activities that result in an
increase of anticipated production by 20% or more. Declaration
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 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. 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 chemicals and chemical mixtures
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; hydrocarbons; or explosives.
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 USNA will provide written notification to the owner
and operator, occupant or agent in charge of the premises to be
inspected. The Department of Commerce will provide preliminary notice
to the 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. 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
[[Page 39198]]
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 preliminary notification to the
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--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.
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 the penalties and enforcement procedures that
apply to violations of 18 U.S.C. 229.
Part 721--Recordkeeping Requirements
This part includes the recordkeeping requirements of the CWCR,
including retention and reproduction requirements.
Comments on this proposed rule must be submitted to BXA by August
20, 1999. To aid in discussions between interested persons and the U.S.
Government on the requirements of this proposed rule, BXA will conduct
a seminar in Washington, D.C. prior to the expiration of the comment
period. Interested persons should contact the Office of Chemical and
Biological Controls and Treaty Compliance on (202) 501-7876 for
information concerning the seminar.
Rulemaking Requirements
1. This proposed rule has been determined to be significant for
purposes of E.O. 12866. BXA invites the public to comment on the extent
to which this rule complies with the principle stated in section
(1)(b)(12) of E.O. 12866 that agencies draft regulations that are
simple and easy to understand, with the goal of minimizing the
potential for uncertainty and litigation arising from such uncertainty.
Comments should be submitted to BXA by August 20, 1999, and sent to
Nancy Crowe, Regulatory Policy Division, Office of Exporter Services,
Bureau of Export Administration, Room 2705, 14th Street and
Pennsylvania Avenue, N.W., Washington, D.C. 20230.
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 we have submitted
for approval to the Office of Management and Budget. The public
reporting burdens for the new collections of information are estimated
to average 9 hours for Schedule 1 Chemicals, 7.2 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.
These estimates include the time required to complete the required
forms.
Comments are invited on (a) whether the collection of information
is necessary for the functions of the agency, including whether the
information shall have practical utility; (b) the accuracy of the
agency's estimate of the burden of the proposed collection of
information; (c) ways to enhance the quality, utility, and clarify of
the information to be collected; and (d) ways to minimize the burden of
the collection of information on respondents, including through the use
of automated collection techniques or other forms of information
technology. Send comments regarding these or any other aspects of the
collection of information to: Nancy Crowe, Regulatory Policy Division,
Bureau of Export Administration , U.S. Department of Commerce Room
2705, 14th Street and Pennsylvania Ave., NW, Washington, DC 20230.
3. This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under
Executive Order 12612.
4. BXA has 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 this proposed rule. A summary of
this IRFA follows. Copies of the CBA and the complete IRFA may be
obtained from Henry Gaston, 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. BXA invites the public to comment on the
CBA and the IRFA. Send comments to Nancy Crowe, Regulatory Policy
Division, Office of Exporter Services, Bureau of Export Administration,
Room 2705, 14th Street and Pennsylvania Avenue, N.W., Washington, D.C.
20230.
The IRFA 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 IRFA states that BXA
does not have information on which SIC code categories will include
companies that will be subject to the reporting, declaration or
inspection requirements of this proposed rule, and therefore, BXA is
unable to estimate with certainty the number of small businesses that
will be affected by the proposed 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''. However, BXA invites and encourages affected companies
commenting on this proposed rule to inform BXA of their size and their
SIC codes.
The IRFA reports BXA's estimate that compliance with the
requirements of this proposed rule will total approximately $377,654 to
gather and maintain relevant data and to fill out declarations, and
approximately $2,166,880 for inspections. The average cost of an
inspection, based on the assumption that 40 facilities will undergo
inpsections each year, is $54,150. The IRFA describes the expected
benefits to the United States of implementing the requirements of the
Convention, including increased national and economic security.
The IRFA explains that BXA's discretion in drafting the declaration
forms and formulating the reporting requirements is limited by the
Convention requirements. The OPCW has issued forms for States Parties
to use in submitting declarations. In drafting the declaration forms
for U.S. persons to use in drafting the CWCR, BXA has consistently made
the reporting requirements as narrow as possible to ensure that only
information required to
[[Page 39199]]
be ``declared'' to the OPCW set forth in the Convention is to be
reported 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
information must be forwarded to the OPCW. In addition, there are
certain declaration requirements of the Convention that are subject to
interpretation. 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
such reporting requirements currently subject to ``national
discretion'', BXA has adopted the minimum requirements consistent with
a reasonable reading of the Convention, keeping in mind its purposes
and objectives.
5. Comments will be considered on provisions included in the
regulations as well as provisions or guidance which commenters believe
should be included in the regulations. The Department encourages
interested persons who wish to comment to do so at the earliest
possible time.
The period for submission of comments will close August 20, 1999.
The Department will consider all comments received before the close of
the comment period in developing final regulations. Comments received
after the end of the comment period will be considered, if possible,
but their consideration cannot be assured. The Department will not
accept public comments accompanied by a request that a part or all of
the material be treated confidentially because of its business
proprietary nature or for any other reason. The Department will return
such comments and materials to the person submitting the comments and
will not consider them in the development of final regulations. All
public comments on these regulations will be a matter of public record
and will be available for public inspection and copying. In the
interest of accuracy and completeness, the Department requires comments
in written form.
Oral comments must be followed by written memoranda, which will
also be a matter of public record and will be available for public
review and copying. Communications from agencies of the United States
Government or foreign governments will not be made available for public
inspection.
The public record concerning these regulations will be maintained
in the Bureau of Export Administration Freedom of Information Records
Inspection Facility, Room 6883, Department of Commerce, 14th Street and
Pennsylvania Avenue, N.W., Washington, DC 20230. Records in this
facility, including written public comments and memoranda summarizing
the substance of oral communications, may be inspected and copied in
accordance with regulations published in Part 4 of Title 15 of the Code
of Federal Regulations. Information about the inspection and copying of
records at the facility may be obtained from Henry Gaston, Bureau of
Export Administration Freedom of Information Officer, at the above
address or by calling (202) 482-0500.
List of Subjects
Part 710
Chemicals, Exports, Foreign Trade, Imports, Treaties.
Part 711
Chemicals, Confidential business information, Reporting and
recordkeeping requirements.
Part 712
Chemicals, Exports, Foreign Trade, Imports, Reporting and
recordkeeping requirements.
Part 713
Chemicals, Exports, Foreign Trade, Imports, Reporting and
recordkeeping requirements.
Part 714
Chemicals, Exports, Foreign Trade, Imports, Reporting and
recordkeeping requirements.
Part 715
Chemicals, Exports, Foreign Trade, Imports, Reporting and
recordkeeping requirements.
Part 716
Chemicals, Confidential business information, Reporting and
recordkeeping requirements, Search warrant, Treaties.
Part 717
Chemicals, Confidential business information, Reporting and
recordkeeping requirements, Search warrant, Treaties.
Part 719
Administrative proceedings, Exports, Imports, Penalties,
Violations.
Part 720
Penalties, violations.
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 721 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: Pub. L. 105-277, 112 Stat. 2681; 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 721 of this subchapter):
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.
Chemical Weapon. Means the following, together or separately:
(a) 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;
(b) A munition or device, specifically designed to cause death or
other harm through the toxic properties of those toxic chemicals
specified in paragraph (a) of this definition, which would be released
as a result of the employment of such munition or device; or (c) Any
equipment specifically designed for use directly in connection with the
employment of munitions or devices specified in paragraph (b) 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
[[Page 39200]]
Destruction, and its annexes opened for signature on January 13, 1993,
and entered into force on April 29, 1997.
Chemical Weapons Convention Regulations (CWCR). Means the
regulations contained in 15 CFR parts 710 through 721.
Consumption. Consumption of a chemical means its conversion into
another chemical via a chemical reaction.
Declaration 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. Certain declaration forms will also be used by
entities that are not ``declared'' facilities, but that have limited
reporting requirements under the CWCR. Information from such facilities
will be used to compile U.S. national aggregate figures on the
production, processing, consumption, import and export of specific
chemicals. See also definition of ``declared facility.''
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, metal carbonates and metal carbides
identifiable by chemical name, by structural formula, if known, and by
Chemical Abstract Service registry number, if assigned.
Domestic transfer (of Schedule 1 chemicals). Means, with regard to
reporting requirements for Schedule 1 chemicals under the CWCR, any
movement of any amount of Schedule 1 chemical outside the geographical
boundary of a facility in the U.S. to another destination in the U.S.
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 import or export for reporting purposes, not a domestic
transfer.
EAR. Means the Export Administration Regulations (15 CFR parts 730
through 799).
Facility. Means any plant site, plant or unit.
Facility agreement. Means an agreement or arrangement between a
State Party and the Organization relating to a specific facility
subject to on-site verification pursuant to Article IV, V, and VI of
the Convention.
Host Team. The United States 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.
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, 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:
(a) Small administrative area;
(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; and
(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.
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.
Processing. Means a physical process such as formulation,
extraction and purification in which a chemical is not converted into
another chemical.
Purposes not prohibited by the CWC. Means the following:
(a) Any peaceful purpose related to an industrial, agricultural,
research, medical or pharmaceutical activity or other activity;
(b) Any purpose directly related to protection against toxic
chemicals and to protection against chemical weapons;
(c) 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
(d) Any law enforcement purpose, including any domestic riot
control purpose and including imposition of capital punishment.
Report. Means information due to BXA on imports and exports of
Schedule 1, Schedule 2 or Schedule 3 chemicals. Such information is
included in the national aggregate prior to transmittal to the OPCW.
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, 713 and 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,
import, export, 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.
Trading company. Means any entity involved in the export or import
of
[[Page 39201]]
chemicals in amounts greater that specified thresholds, but not in the
production, processing or consumption of chemicals in amounts greater
than threshold amounts requiring declaration. Such companies are not
subject to routine inspections.
Transfer. See domestic transfer.
Undeclared facility. Means a facility 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 may have a reporting requirement for imports or exports of
such chemicals.
Unit. Means the combination of those items of equipment, including
vessels and vessel set up, necessary for the production, processing or
consumption of a chemical.
United States. Means the several States of the United States, the
District of Columbia, and the commonwealths, territories, and
possessions of the United States, and includes all places under the
jurisdiction or control of the United States, including any of the
places within the provisions of paragraph (41) of section 40102 of
Title 49 of the United States Code, any civil aircraft of the United
States or public aircraft, as such terms are defined in paragraphs (1)
and (37), respectively, of section 40102 of Title 49 of the United
States Code, and any vessel of the United States, as such term is
defined in section 3(b) of the Maritime Drug Enforcement Act, as
amended (section 1903(b) of Title 46 App. of the United States Code).
United States National Authority (USNA). Means the State Department
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 Supplement No. 1 to parts
712, 713 and 714 of this subchapter).
Unsheduled Discrete Organic Chemical (UDOC). Means any chemical:
(a) Belonging to the class of chemical compounds consisting of all
compounds of carbon except for its oxides, sulfides, metal carbonates
and metal carbides identifiable by chemical name, by structural
formula, if known, and by Chemical Abstract Service registry number, is
assigned, and
(b) That is not contained in the Schedules of Chemicals (see
Supplements No. 1 to parts 712, 713 and 714 of this subchapter).
Unscheduled discrete organic chemicals subject to declaration under
this subchapter are those produced by synthesis that were 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 721
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. The CWCR reporting
and inspection requirements apply to all facilities in the United
States, except for Department of Defense and Department of Energy
facilities and other United States Government agencies that notify the
USNA of their decision to be excluded from the CWCR. The CWCR also
apply to all U.S. persons and facilities, wherever located, for imports
of Scheduled chemicals and activities involving Schedule 1 chemicals,
except for Department of Defense and Department of Energy facilities
and other United States Government facilities that notify the USNA of
their decision to be excluded from the CWCR. United States Government
facilities are those owned by or leased to the U.S. Government,
including facilities that are contractor-operated.
(b) Activities subject to the CWCR. The CWCR compel data
declarations and reports from facilities subject to the CWCR (parts 710
through 721 of this subchapter) on activities including production,
processing, consumption, imports and exports, involving organic
chemicals further described in parts 712 through 715 of this
subchapter. Those regulations do not apply to activities involving
inorganic chemicals other than those listed in the Schedule of
Chemicals or to other specifically exempted organic chemicals. In
addition, those 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 that could be
requested at any facility or location in the United States. Finally,
the CWCR restrict imports of Schedule 1 and 2 chemicals, limit
production of Schedule 1 chemicals to specified annual amounts and
prohibit other activities involving 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 Government (USG), as a State Party, certain declaration,
inspection, and other obligations. In addition, the USG and each other
State Party 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 State Parties that
lawful activities of the 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 721 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 other United States Government agencies that
notify the USNA of their decision to be excluded from the CWCR on
activities,
[[Page 39202]]
including imports and exports, involving Scheduled chemicals and
unscheduled Discrete Organic Chemicals as described in parts 712
through 715 of this subchapter. United States 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 721 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 in the
pharmaceutical or medical industries.
(b) Schedule 2 chemicals are listed in Supplement No. 1 to part 713
of this subchapter. Although Schedule 2 chemicals may be useful in the
production of chemical weapons, they also have legitimate uses in areas
such as:
(1) Flame retardant additives and research;
(2) Dye and photographic industries (e.g., printing ink, ball point
pen fluids, copy mediums, paints, etc.);
(3) Medical and pharmaceutical preparation (e.g., anticholinergics,
arsenicals, tranquillizer 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 721 of this subchapter) implement
certain provisions of the Chemical Weapons Convention under the
authority of the Chemical Weapons Convention Implementation Act of 1998
(CWCIA), the National Emergencies Act, the International Emergency
Economic Powers Act of 1997 (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
CWCIA, and consistent with the CWCIA, to carry out appropriate
functions not otherwise assigned in the CWCIA but necessary to
implement certain reporting, monitoring and inspection requirements of
the Convention and the CWCIA.
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, including the transfer of technology during an on-site
inspection. 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 Secs. 740.11 and 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 [EFFECTIVE DATE OF THE FINAL RULE].
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 *
---------------------------------------------------------------------------
\*\ For CWC States Parties purposes, China includes Hong Kong.
---------------------------------------------------------------------------
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
Lithuania
Luxembourg
Macedonia
Malawi
Maldives
Mali
Malta
Mauritius
Mauritania
Mexico
[[Page 39203]]
Moldova (Republic of)
Monaco
Mongolia
Morocco
Namibia
Nepal
Netherlands
New Zealand
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
Switzerland
Tajikistan
Tanzania, United
Republic of Togo
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan
Ukraine
United Kingdom
United States
Uruguay
Uzbekistan
Venezuela
Vietnam
Zimbabwe
PART 711--GENERAL INFORMATION REGARDING DECLARATION REQUIREMENTS
Sec.
711.1 Overview of declaration, notification and reporting
requirements.
711.2 Confidential business information.
711.3 Who submits declarations, notifications and reports.
711.4 Assistance in determining your obligations and
classifications.
711.5 Where to obtain forms.
Supplement No. 1 to Part 711--Confidential Business Information To Be
Declared or Reported
Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR
36703.
Sec. 711.1 Overview of declaration, notification and reporting
requirements.
Parts 712 through 715 of the CWCR (parts 710 through 721 of this
subchapter) describe the declaration, notification and reporting
requirements for Schedule 1, 2 and 3 chemicals and for unscheduled
discrete organic chemicals (UDOCs). For each type of chemical, the
Convention requires 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. 711.4).
Sec. 711.2 Confidential business information.
(a) Provisions of the Act relating to confidential business
information. (1) The Act provides a statutory exemption from disclosure
in response to a Freedom of Information Act request for information
submitted to the U.S. National Authority by private entities in
declarations and reports for:
(i) Information included in categories specifically enumerated in
sections 103(g)(1) and 304(e)(2) of the Act:
(A) Financial data;
(B) Sales and marketing data (other than shipment data);
(C) Pricing data;
(D) Personnel data;
(E) Research data;
(F) Patent data;
(G) Data maintained for compliance with environmental or
occupational health and safety regulations;
(H) Data on personnel and vehicles entering and personnel 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; or
(L) Any commercial sale, shipment or use of a chemical, or
(ii) 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.
Note to paragraph (a)(1): See Secs. 716.(4)(e) and 717.2(e)(5)
of this subchapter for related provisions dealing with information
obtained through the conduct of inspections in the United States
under the Convention.
(2) The Act provides for disclosure of confidential business
information to the OPCW, to federal law enforcement agencies, and, upon
written request, to Congressional committees of appropriate
jurisdiction.
(3) The United States Government must also disclose confidential
business information when such disclosure is deemed to be in the
national interest. The USNA, in coordination with the CWC interagency
group shall determine if disclosure of such confidential business
information is in the national interest. The Act provides for
notification to the affected person of intent to disclose confidential
business information, 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 determines that such notification of intent to disclose
is not contrary to national security or law enforcement needs, the USNA
will notify the person that submitted the information or the person to
whom the information pertains of the intent to disclose the
information.
(b) Provisions of the Convention relating to confidential business
information. The Convention provides that States Parties may designate
information submitted to the Organization for the Prohibition of
Chemical Weapons (OPCW) 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 allow access to information which it receives
from the OPCW in accordance with the level of confidentiality
established for that information.
Sec. 711.3 Who submits declarations, notifications and reports.
The operator of a facility required to submit declarations,
notifications or reports under the CWCR (parts 710 through 721 of this
subchapter) is responsible for the submission of all required documents
in accordance with all applicable provisions of the CWCR.
Sec. 711.4 Assistance in determining your obligations and
classifications.
(a) If you need assistance in determining your obligations under
the CWCR (parts 710 through 721 of this subchapter), including whether
a chemical is classified as a Schedule 1, Schedule 2, or Schedule 3
chemical, or
[[Page 39204]]
is an unscheduled discrete organic chemical, submit your request to the
Bureau of Export Administration. BXA will only review properly
submitted requests, which must include the following information:
(1) Date of request;
(2) Company name and complete street address;
(3) Point of contact;
(4) Phone and fax number of contact;
(5) Chemical name;
(6) Structural formula;
(7) Chemical abstract registry number, if assigned.
(b) Requests for chemical determinations may be faxed to (703) 235-
1481 or mailed to the following address: Information Technology Team,
Bureau of Export Administration,U.S. Department of Commerce, 1555
Wilson Boulevard, Suite 710, Arlington, Virginia 22209-2405.
(c) BXA will respond to properly submitted requests within 10
calendar days of receipt.
Sec. 711.5 Where to obtain forms.
U.S. Department of Commerce, Information Technology Team, 1555
Wilson Blvd., Suite 710 Arlington, VA 22209-2405, Telephone: (703) 235-
1335.
Supplement No. 1 To Part 711.--Confidential Business Information To Be
Declared or Reported 1
------------------------------------------------------------------------
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.
Schedule 2 Forms:
Certification........................... None.
Form 2-1................................ None.
Form 2-2................................ Question 2-2.9.
Form 2-3................................ All fields.
Form 2-3A............................... All fields.
Form 2-3B............................... All fields.
Form 2-3C............................... All fields.
Form 2-4................................ All fields.
Schedule 3 Forms:
Certification Form...................... None.
Form 3-1................................ None.
Form 3-2................................ None.
Form 3-3................................ All fields.
Form 3-4................................ All fields.
Unscheduled Discrete Organic Chemicals
Forms:
Certification Form...................... None.
Form UDOC............................... None.
------------------------------------------------------------------------
Note: Information contained in Form A attachments will be evaluated on a
case-by-case basis, except that Schedule 1 facility technical
descriptions submitted with initial declarations are confidential
business information.
1 This table lists those data fields on the Declaration and Report forms
that request ``confidential business information'' (CBI) as defined by
the CWCIA (sections 103(g) and 304(e)(2)). As provided by section
404(a) of the CWCIA, 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 CWCIA, that such disclosure is in
the national interest. Other FOIA exemptions to disclosure may also
apply. CBI may be disclosed to the Technical Secretariat of the OPCW,
and certain CBI may be disclosed to other States Parties to the
Convention.
PART 712--ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS
Sec.
712.1 Prohibitions involving imports of Schedule 1 chemicals.
712.2 Initial and annual declaration requirements for facilities
engaged in the production of Schedule 1 chemicals.
712.3 New Schedule 1 production facility.
712.4 Advance notification and annual report of all exports and
imports of Schedule 1 chemicals to, or from, other States Parties.
712.5 Frequency and timing of declarations, reports and
notifications.
712.6 Amended declaration or report.
Supplement No. 1 To Part 712--Schedule 1 Chemicals
Authority: Pub. L. 105-277, 112 Stat. 2681; 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 Prohibitions involving imports of Schedule 1 chemicals.
See Sec. 711.5 of this subchapter for information on obtaining the
forms you will need to declare and report activities involving Schedule
1 chemicals. See Sec. 711.2 and Supplement No. 1 to part 711 of this
subchapter for information pertaining to the protection of confidential
business information.
(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 the Department of Commerce 45 calendar days
prior to the import pursuant to Sec. 712.4.
(b) The provisions of paragraph (a) of this section do not apply
to:
(1) 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 means:
(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. 712.1: 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 of 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. 712.2 Initial and annual declaration requirements for facilities
engaged in the production of Schedule 1 chemicals.
(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 calendar year 1997, 1998 or 1999.
(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 l chemicals
in the previous calendar year, beginning with calendar year 1997. Note
that as part of this declaration, 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
[[Page 39205]]
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), and wait 200
calendar days before commencing operations or increasing production
that 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. 712.5, 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 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 or reported. 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 for each Schedule 1
chemical produced the quantity consumed and stored, and the quantity of
any Schedule 1, Schedule 2 or Schedule 3 chemical precursor used to
produce the declared Schedule 1 chemicals, rounded to the nearest gram.
(d) ``Declared'' Schedule 1 facilities and routine inspections.
Only facilities that produced in excess of 100 grams aggregate of
Schedule 1 chemicals 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 Schedule 1
``declared'' facilities. A ``declared'' Schedule 1 facility is subject
to 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 (see paragraph (a)(2)
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. 712.3 New Schedule 1 production facility.
(a) Establishment of a new Schedule 1 production facility. If your
facility was not declared under Sec. 712.2 in the previous calendar
year, but 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 notify BXA
at least 200 calendar days in advance of commencing such production.
Such facilities are considered ``new Schedule 1 production facilities''
and cannot begin operation or be used until the United States and the
OPCW have concluded a facility agreement for the new facility.
(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 area.
Sec. 712.4 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 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 company-specific
information relating to export and import transactions, including the
names and addresses of all declared facilities, undeclared facilities
and trading companies, is submitted to the OPCW as part of the U.S.
annual declaration on exports and imports. Also 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
[[Page 39206]]
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 on 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 recipient and exporter;
(H) Complete street address(es) of recipient and exporter;
(I) 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, 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 declaration or report on exports and imports. (1)
Declaration or report requirements. You must complete the forms
specified in paragraph (b)(2) of this section if you exported to or
imported from another State Party any quantity of a Schedule 1 chemical
during the previous calendar year.
(2) Forms to be used. (i) Facilities declared pursuant to
Sec. 712.2(d). If you are a Schedule 1 declared facility because you
produced in excess of 100 grams aggregate of Schedule 1 chemicals in
the previous calendar year, you must complete Form 1-3 as part of the
annual declaration on past activities. (See Sec. 712.2(b)(2)).
(ii) Undeclared facilities and trading companies. If your facility
is not a ``declared'' facility because it did not produce over 100
grams aggregate of Schedule 1 chemicals, and you exported or imported
any quantity of a Schedule 1 chemical to or from another State Party,
you must complete the Certification Form, Form 1-1, and Form 1-3. Form
B is optional.
(c) Paragraph (a) of this section does not apply to the activities
and persons set forth in paragraph 712.1(c).
Sec. 712.5 Frequency and timing of declarations, reports and
notifications.
Declarations, reports and notifications required under this part
are due to BXA according to the dates identified in Table 1 of this
section. Required declarations, reports and notifications include:
(a) Initial declarations;
(b) Annual declarations or reports on activities, including exports
and imports, during the previous calendar year, beginning with
activities in calendar year 1997;
(c) Annual declarations on anticipated production in the next
calendar year, beginning in calendar year 1999 for production
anticipated for calendar year 2000;
(d) Advance notification of any export to or import from another
State Party; and
(e) Advance notification of new Schedule 1 production facility.
Table 1 to Sec. 712.5.--Deadlines for Submission of Schedule 1
Declarations
------------------------------------------------------------------------
Declarations and
notifications Applicable forms Due dates
------------------------------------------------------------------------
Initial Declaration:
Declared facility Certification, 1-1, See Note to Table 1.
(technical description). A.
Annual Declaration on Past
Activities (previous
calendar year):
Declared facility (past Certification, 1-1, See Note to Table 1.
production, exports and 1-2, 1-2A, 1-2B, 1-
imports). 3 (if also exported
or imported), A,
and B (optional).
Annual report of exports and Certification, 1-1, See Note to Table 1.
imports (undeclared 1-3, B (optional).
facility, trading company).
Annual Declaration on Certification, 1-1, August 3 of each
Anticipated Production for 1-4, A, B year prior to the
a Facility (next calendar (optional). calendar year in
year). which anticipated
activities will
take place.
Advance Notification of any Notify on 45 calendar days
export to or import from letterhead. See prior to the import
another State Party. Sec. 712.4 of this or export.
subchapter.
Advance Notification of new Certification, 1-1, 200 calendar days
Schedule 1 production A. before commencing
facility. such production.
------------------------------------------------------------------------
Note to Table 1: Initial declarations and annual reports of past
production, exports and imports pursuant to the provisions of this
part are due [90 days after the publication of a final rule]. Declared
facilities must provide annual declarations on past production of
Schedule 1 chemicals in aggregate quantities exceeding 100 grams for
both calendar years 1997 and 1998. Thereafter, annual declarations and
reports of past Schedule 1 activities will be due to the Department of
Commerce by February 13th of each year.
Sec. 712.6 Amended declaration or report.
If, after submitting the original declaration or report, you
discover that the previously submitted information is not accurate
(e.g., change of quantity, addition of a new chemical, relocation of
facility, etc.), you must complete a new Certification Form and the
specific form 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 that changed.
[[Page 39207]]
Supplement No. 1 to Part 712--Schedule 1 Chemicals
------------------------------------------------------------------------
(CAS registry
No.)
------------------------------------------------------------------------
A. Toxic chemicals:
(1) O-Alkyl (C10, incl. cycloalkyl)
alkyl (Me, Et, n-Pr or i-Pr)-phosphonofluoridates
e.g. Sarin: O-Isopropyl (107-44-8)
methylphosphonofluoridate....................
Soman: O-Pinacolyl methylphosphonofluoridate.. (96-64-0)
(2) O-Alkyl (C10, incl. cycloalkyl) N,N-
dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidocyanidates
e.g. Tabun: O-Ethyl N,N-dimethyl (77-81-6)
phosphoramidocyanidate.......................
(3) O-Alkyl (H or C10, incl.
cycloalkyl) S-2-dialkyl (Me, Et, n-Pr or i-Pr)-
aminoethyl alkyl (Me, Et, n-Pr or i-Pr)
phosphonothiolates and corresponding alkylated or
protonated salts
e.g. VX: O-Ethyl S-2-diisopropylaminoethyl (50782-69-9)
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)
phosphonyldifluorides............................
e.g. DF: Methylphosphonyldifluoride........... (676-99-3)
(10) O-Alkyl (H or C10, incl.
cycloalkyl) O-2-dialkyl (Me, Et, n-Pr or i-Pr)-
aminoethyl alkyl (Me, Et, N-Pr or i-Pr)
phosphonites and corresponding alkylated or
protonated salts
e.g. QL: O-Ethyl O-2-diisopropylaminoethyl (57856-11-8)
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 of past production of Schedule 2 chemicals for
chemical weapons purposes.
713.3 Initial and annual declaration and reporting 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 a Schedule 2 chemical.
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: Pub. L. 105-277, 112 Stat. 2681; 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.
See Sec. 711.4 of this subchapter for information on obtaining the
forms you will need to declare and report activities involving Schedule
2 chemicals.
(a) You may not import any Schedule 2 chemical (see Supplement No.
1 to this part) on or after April 29, 2000, from any country 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 EAR 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 the activities
and persons set forth in paragraph 712.1(c) of this subchapter.
Sec. 713.2 Declaration of 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 and Form B (which is optional), 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. You must declare the total
quantity of such a chemical produced, rounded to the nearest
[[Page 39208]]
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 and reporting requirements
for plant sites that produce, process or consume Schedule 2 chemicals
in excess of specified thresholds.
See Supplement No. 1 to part 711 of this subchapter for information
pertaining to the protection of confidential business information.
(a) 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 (c) 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 any chemical belonging to Amiton and
corresponding alkylated or protonated salts (see Schedule 2, paragraph
A.1 and A.2 A.3 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 at one or more plants on
your plant site in calendar years 1994, 1995 or 1996. For example,
if you are preparing your initial declaration, and you determine
that one plant on your plant site produced greater than 1 kilogram
of the chemical BZ: 3-Quinuclidinyl benzilate in calendar year 1995,
and no plants on your plant site produced, processed or consumed any
Schedule 2 chemical above the declaration threshold in calendar
years 1994 or 1996, you still have a declaration requirement under
this paragraph, and you must declare on the required forms
production, processing and consumption data for calendar years 1994,
1995 and 1996.
(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; or
Note to paragraph (a)(1)(ii). To determine whether you have an
annual declaration requirement of Schedule 2 activities, you must
determine whether you produced, processed or consumed a Schedule 2
chemical above the applicable threshold at one or more plants on
your plant site in any one of the previous three calendar years. For
example, if you are preparing your annual declaration on past
activities for 1997, and you determine that one plant on your plant
site produced greater than 1 kilogram of the chemical BZ: 3-
Quinuclidinyl benzilate in calendar year 1995, and no plants on your
plant site produced, processed or consumed any Schedule 2 chemical
above the declaration threshold in calendar years 1996 or 1997, you
still have a declaration requirement under this paragraph. However,
you must only declare on the required forms production, processing
and consumption data for calendar year 1997.
(iii) Annual declaration on anticipated activities. You anticipate
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 2000, 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 Schedule 2 chemicals. (i) The quantity of a
Schedule 2 chemical contained in a mixture must be counted for
declaration purposes only if the concentration of the Schedule 2
chemical in the mixture is;
(A) 10% or more by volume or by weight, whichever yields the lesser
percent, for activities involving either production or consumption of a
mixture containing a Schedule 2 chemical; or
(B) 30% or more by volume or by weight, whichever yields the lesser
percent, for activities involving the processing of a mixture
containing a Schedule 2 chemical.
(ii) Counting the amount of the Schedule 2 chemical in a mixture.
If your mixture contains more than the stated percentage concentration
of a Schedule 2 chemical for the activity (i.e., more than 10% for
production or consumption activities or more than 30% for processing
activities), you must count only the amount (weight) of the Schedule 2
chemical in the mixture, not the total weight of the mixture. Only
count amounts for activities for which you meet the applicable
percentage threshold. For example, if a plant at your plant site
produces and/or consumes a Schedule 2 chemical at a concentration over
10% but does not process that chemical at a concentration over 30%,
only count the amount of the Schedule 2 chemical involved in the
production and/or consumption activity or activities. Likewise, if a
plant on your plant site processes a Schedule 2 chemical at a
concentration in excess of 30% but does not produce or consume that
chemical at a concentration in excess of 10%, only count the amount of
that Schedule 2 chemical involved in the processing activity.
(iii) Determining declaration requirements for production,
processing and consumption. You must include the amount (weight) of a
Schedule 2 chemical in a produced, processed or consumed 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 (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 12% 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 CWC purposes would be 800 kilograms and would not
trigger a declaration requirement. This is because the concentration of
thiodiglycol in the mixture did not exceed 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 included data
[[Page 39209]]
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 2000. 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
Schedule 2 chemicals in amounts greater than the applicable threshold
levels.
(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 Schedule 2 chemicals in amounts greater
than the applicable threshold levels.
(2) Rounding. For the chemical BZ, report quantities to the nearest
hundredth of a kilogram. For PFIB and the Amiton family, report
quantities to the nearest 1 kg. For all other Schedule 2 chemicals,
report quantities to the nearest 10 kg.
(d) ``Declared'' Schedule 2 plant sites. A plant site that
comprises one or more plants 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.''
(e) Declared Schedule 2 plant sites subject to routine inspections.
A ``declared'' Schedule 2 plant site is subject to routine inspection
by the OPCW 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).
Sec. 713.4 Initial and annual declaration and reporting requirements
for exports and imports of Schedule 2 chemicals.
(a) Quantities of exports and imports that must be declared or
reported. You must complete the forms specified in paragraph (c) of
this section if you have been or will be involved in any of the
following activities.
(1) Initial declaration or report. (i) Initial declaration from a
declared plant site. Your plant site is declared pursuant to Sec. 713.3
and you exported from and/or imported to your plant site during any of
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);
(B) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-
2(trifluoromethyl)-1-propene or any chemical belonging to Amiton and
corresponding alkylated or protonated salts (see Schedule 2, paragraph
A.1 and A.2);
(C) 1 metric ton of any chemical listed in Schedule 2, Part B.
(ii) Initial report on exports and imports from undeclared plant
site or trading company. You exported from and/or imported to your
undeclared plant site or trading company during calendar year 1996 a
Schedule 2 chemical in excess of the threshold quantity specified in
paragraphs (a)(1)(i)(A) through (C) of this section.
(2) Annual declaration or report on past activities. (i) Declared
plant site. You exported from and/or imported to your plant site during
the previous calendar year a Schedule 2 chemical in excess of the
applicable declaration threshold quantity specified in paragraphs
(a)(1)(i)(A) through (C) of this section; or
(ii) Annual report of exports and imports from undeclared plant
site or trading company. You exported from and/or imported to your
undeclared plant site trading company during the previous calendar year
a Schedule 2 chemical in excess of the threshold quantity specified in
paragraphs (a)(1)(i)(A) through (C) of this section. (See part 710 of
this subchapter for a definition of trading company.)
Notes to paragraph (a): Note 1: You must obtain an End-Use
Certificate to export any Schedule 2 chemical to a non-State Party
prior to April 29, 2000. (See Secs. 742.18, 745.2 and 748.8 of the
EAR.) Exports of Schedule 2 chemicals to non-States Parties are
prohibited beginning April 29, 2000.
Note 2: You may need a license to export a Schedule 2 chemical.
(See Secs. 742.2 and 742.18 of the EAR for chemicals under the
jurisdiction of the Department of Commerce and the ITAR (22 CFR
parts 120 through 130) for chemicals under the jurisdiction of the
Department of State.)
(b) Mixtures. Note that the quantity of a Schedule 2 chemical
contained in a mixture must be counted for declaration purposes only if
the concentration of the Schedule 2 chemical in the mixture is:
(1) 10% or more by volume or by weight, whichever yields the lesser
percent, for activities involving either production or consumption of a
mixture containing a Schedule 2 chemical, or
(2) 30% or more by volume or by weight, whichever yields the lesser
percent, for activities involving the processing of a mixture
containing a Schedule 2 chemical.
Note to paragraph (b): See Sec. 713.3(a)(2) for information on
counting amounts of Schedule 2 chemicals contained in mixtures and
determining declaration requirements.
(c) Types of declarations and declaration forms to be used. (1)
Initial declaration. (i) Declared plant sites. If your plant site is
subject to the declaration requirements of Sec. 713.3 for a specific
Schedule 2 chemical, and if your plant site also exported or imported
that Schedule 2 chemical in excess of the applicable threshold quantity
set forth in paragraph (a) of this section in calendar years 1994, 1995
or 1996, you must also complete Form 2-3B in addition to the forms
required by Sec. 713.3(b)(1). You must declare exports from or imports
to your plant site of that Schedule 2 chemical for each of
[[Page 39210]]
calendar years 1994, 1995, and 1996 during which the imports or exports
exceeded the applicable threshold quantity.
(ii) Undeclared plant sites and trading companies. If your plant
site is not subject to the declaration requirements of Sec. 713.2 for a
specific Schedule 2 chemical and if your plant site exported or
imported more than the applicable threshold quantity of that Schedule 2
chemical during calendar year 1996, or if your trading company as that
term in defined in part 710 of this subchapter exported or imported
more than the applicable threshold quantity of a Schedule 2 chemical
during calendar year 1996, you must complete the Certification Form,
Forms 2-1 and 2-3B, and Form A. Form B is optional.
Note to paragraph (c)(1)(ii): Under the Convention, the United
States is obligated to provide the OPCW an aggregate annual report
of the quantities of each Schedule 2 chemical exported and imported.
The U.S. Government will not submit your company-specific
information relating to the export or import of a Schedule 2
chemical reported under this paragraph (c)(1)(ii). The U.S.
Government will add all export and import information submitted by
various undeclared plant sites and trading companies under this
paragraph (c)(1)(ii) to export and import information submitted by
declared plant sites under paragraph (c)(1)(i) of this section to
produce a national aggregate initial declaration of country-by-
country trade for each Schedule 2 chemical.
(2) Annual declaration or report on past activities exports and
imports. (i) Declared plant sites. If your plant site is subject to the
declaration requirements of Sec. 713.3 for a specific Schedule 2
chemical and your plant site also exported or imported more than the
applicable threshold quantity of that Schedule 2 chemical in the
previous calendar year, you must also complete Form 2-3B in addition to
the forms required by Sec. 713.3(b)(2).
(ii) Undeclared plant sites and trading companies. If your plant
site is not subject to the declaration requirements of Sec. 713.3 for a
specific Schedule 2 chemical and your plant site exported or imported
more than the applicable threshold quantity of that chemical in the
previous calendar year, or if you are a trading company as that term is
defined in part 710 of this subchapter and your trading company
imported or exported more than the applicable threshold quantity of a
Schedule 2 chemical in the previous calendar year, you must complete
the Certification Form, Forms 2-1 and 2-3B. Form B is optional.
Note to (c)(2)(ii): Under the Convention, the United States is
obligated to provide the OPCW an aggregate annual report of the
quantities of each Schedule 2 chemical exported and imported. The
U.S. Government will not submit your company-specific information
relating to the export or import of a Schedule 2 chemical reported
under this paragraph (c)(2)(ii). The U.S. Government will add all
export and import information submitted by various undeclared plant
sites and trading companies under this paragraph (c)(2)(ii) to
export and import information submitted by declared plant sites
under paragraph (c)(2)(i) of this section to produce a national
aggregate annual declaration of country-by-country trade for each
Schedule 2 chemical.
(d) Quantities to be declared. (1) Country-by-country reporting. If
you exported from or imported to your plant site or trading company
more than the applicable threshold quantity of a Schedule 2 chemical,
you must report all exports and imports by country, and indicate the
total amount exported to or imported from each country. Only indicate
the total annual quantity exported to or imported from a specific
country if the total annual quantity to or from that country is more
than 1% of the applicable threshold (i.e., more than 10 grams of BZ, 1
kilogram of PFIB and 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 declaration or reporting requirements, 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 2 chemical, you must total all exports and imports per
calendar year per recipient or source country and then round as
follows: for the chemical BZ, the total quantity for each country
should be reported to the nearest hundreth of a kilogram (10 grams);
for PFIB and Amiton and corresponding alkylated or protonated salts,
the total quantity for each country should be reported to the nearest 1
kg; for all other Schedule 2 chemicals, the total quantity for each
country should be reported to the nearest 10 kg.
Sec. 713.5 Advance declaration requirements for additionally planned
production, processing or consumption of a Schedule 2 chemical.
(a) Declaration requirements. You must declare additionally planned
production, processing or consumption of a Schedule 2 chemical after
the annual declaration on anticipated activities has been delivered to
BXA if:
(1) You plan to increase production, processing or consumption of a
previously declared Schedule 2 chemical at any plant on your plant site
by 20% or more of the originally declared amount; or
(2) You plan to begin new production, processing or consumption of
an additional Schedule 2 chemical in amounts greater than the
applicable threshold quantities set forth in Sec. 713.3(a)(1)(i)(A)
through (C).
(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 Form 2-1 and 2-
3C. Such forms are due to BXA at least 21 days in advance of the
beginning of the additional or new production, processing or
consumption.
Sec. 713.6 Frequency and timing of declarations and reports.
Declarations and reports required under this part are due to BXA
according to the dates identified in Table 1 of this section. Required
declarations and reports include:
(a) Declaration on past production of Schedule 2 chemicals for CW
purposes since January 1, 1946;
(b) Initial declaration on past production, processing,
consumption, import or export of Schedule 2 chemicals (activities in
calendar years 1994, 1995 and 1996);
(c) Annual declaration on past production, processing, consumption,
export or import of Schedule 2 chemicals (activities during the
previous calendar year);
(d) Annual declaration on anticipated activities (production,
processing or consumption) beginning in calendar year 1999 for
activities anticipated for calendar year 2000; and
(e) Annual reports on exports and imports from trading companies
and plant sites that do not have declaration requirements for a
specific Schedule 2 chemical (exports and imports during the previous
calendar year).
Table 1 to Sec. 713.6.--Deadlines for Submission of Schedule 2
Declarations
------------------------------------------------------------------------
Declarations Applicable forms Due dates
------------------------------------------------------------------------
Initial Declaration:
[[Page 39211]]
Declared Plant Site Certification, 2-1, See note to Table 1.
(1994, 1995 and 1996 2-2, 2-3, 2-3A, 2-
for production, 3B (if also
processing and exported or
consumption; and imported), A, B
exports and imports for (optional).
1996).
Initial Report on Exports
and Imports:
Undeclared Plant Site Certification, 2-1, See note to Table 1.
and Trading Company 2-3B, B (optional).
(previous year exports
and imports).
Annual Declaration on Past
Activities:
Declared Plant Site Certification , 2-1, See note to Table 1.
production, processing, 2-2, 2-3 2-3A, 2-3B
consumption, exports (if also exported
and imports (previous or imported), A, B
calendar year only). (optional).
Annual Report of Exports and
Imports:
Undeclared Plant Site Certification, 2-1, See note to Table 1.
and Trading Company 2-3B, B (optional).
(exports and imports).
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, B (optional). calendar year in
which anticipated
activities will
take place.
Declaration of additionally Certification, 2-1, 21 calendar days
planned production, 2-3C. before the
processing and consumption. additionally
planned activity
begins.
Declaration on Past Certification, 2-1, See note to Table 1.
Production of Schedule 2 2-2, 2-4 A, B
Chemicals for CW Purposes. (optional).
------------------------------------------------------------------------
Note to Table 1: The declaration of past production for CW purposes,
initial declaration of production, processing and consumption, export
and imports and annual declarations for calendar years 1997 and 1998
of past production, processing, consumption, exports and imports
pursuant to the provisions of this part will be due [90 days after the
effective date of the final rule]. Thereafter, annual declarations of
past Schedule 2 activities will be due to BXA by February 13th of each
year.
Sec. 713.7 Amended declaration or report.
If, after submitting the original declaration or report, you
discover that the previously submitted information is not accurate
(e.g., change of quantity, addition of a new chemical, relocation of
facility, etc.), you must complete a new Certification Form and the
specific form 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 that changed.
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
1, containing a phosphorus atom to which is
bonded one methyl, ethyl or propyl (normal or
iso) group but not further carbon atoms,
e.g. Methylphosphonyl dichloride.............. (676-97-1)
Dimethyl methylphosphonate.................... (756-79-6)
Exemption: Fonofos: O-Ethyl S-phenyl (944-22-9)
ethylphosphono-thiolothionate................
(5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidic dihalides
(6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl
(Me, Et, n-Pr or i-Pr)-phosphoramidates
(7) Arsenic trichloride........................... (7784-34-1)
(8) 2,2-Diphenyl-2-hydroxyacetic acid............. (76-93-7)
(9) Quinuclidine-3-ol............................. (1619-34-7)
(10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-
2-chlorides and corresponding protonated salts
(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 of past production of Schedule 3 chemicals for
chemical weapons purposes.
714.2 Initial and annual declaration requirements for production of
Schedule 3 chemicals.
714.3 Initial and annual declaration and 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: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR
36703.
Sec. 714.1 Declaration of past production of Schedule 3 chemicals for
chemical weapons purposes.
See Sec. 711.5 of this subchapter for information on obtaining the
forms you will need to declare and report activities
[[Page 39212]]
involving Schedule 3 chemicals. You must complete the Certification
Form, Forms 3-1, 3-2, 3-4, Form A and Form B (which is optional) 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. You must declare the total quantity of such chemical
produced, rounded to the nearest tenth of a metric ton (or 100 kg).
Note that 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 production
of Schedule 3 chemicals.
(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 (c) of this section if you have been or
anticipate being involved in the following activities:
(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; or
(ii) Annual declaration on past activities. You produced at your
plant site in excess of 30 metric tons of any single Schedule 3
chemical during the previous calendar year, beginning with figures for
calendar year 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. 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.
(b) Types of declarations and 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
and round to the nearest ten metric tons.
(3) Mixtures. The quantity of a Schedule 3 chemical contained in a
mixture must be counted when determining the total quantity of a
Schedule 3 chemical produced at your plant site 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.
(d) ``Declared'' Schedule 3 plant sites. A plant site that
comprises one or more plants that produced in excess of 30 metric tons
of a single Schedule 3 chemical during the previous calendar year, or
that you anticipate will produce more than 30 metric tons of a single
Schedule 3 chemical in the next calendar year, is a Schedule 3
``declared'' plant site.
(e) Routine inspections of declared Schedule 3 plant sites. A
``declared'' Schedule 3 plant site is subject to routine inspection by
the OPCW (see part 716 of this subchapter) if it produced during the
previous calendar year or you anticipate it will produce during the
next calendar year in excess of 200 metric tons aggregate of any
Schedule 3 chemical.
Sec. 714.3 Initial and annual declaration and reporting requirements
for exports and imports of Schedule 3 chemicals.
(a) Quantities of exports and imports that must be declared or
reported. You must complete the forms specified in paragraph (c) of
this section if you have been or will be involved in any of the
following activities:
(1) You exported from or imported to your declared plant site,
during calendar year 1996 (for the initial declaration) or the previous
calendar year (for all annual declarations starting with calendar year
1997) a Schedule 3 chemical in excess of 30 metric tons; or
(2) You exported from or imported to your undeclared plant site or
trading company (see part 710 of this subchapter for a definition of a
trading company) a Schedule 3 chemical in excess of 30 metric tons.
Notes to paragraph (a): Note 1: You must obtain an End-Use
Certificate before exporting a Schedule 3 chemical to a non-State
Party. See Secs. 742.18, 745.2 and 748.8 of the EAR.
Note 2: You may need a license to export a Schedule 2 chemical.
See Secs. 742.2 and 742.18 of the EAR for Schedule 3 chemicals under
the jurisdiction of the Department of Commerce and the ITAR (22 CFR
parts 120 through 130) for chemicals under the jurisdiction of the
Department of State.
(b) Mixtures. Note that 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. This
requirement applies to each Schedule 3 chemical imported or exported in
a previous calendar year.
(c) Types of declarations and declaration forms to be used.
(1) Initial declaration. (i) Declared plant sites. If you are
subject to the declaration requirements of Sec. 714.2 because one or
more plants at your plant site produced more than 30 metric tons of a
specific Schedule 3 chemical, and you also exported from or imported to
your plant site that Schedule 3 chemical in excess of 30 metric tons in
1996, you must also report the total quantity of exports or imports of
that Schedule 3 chemical, specifying the quantity associated with each
country, by completing additional parts of Form 3-3.
(ii) Undeclared plant sites and trading companies. If your plant
site is not subject to the declaration requirements of Sec. 714.2 for a
specific Schedule 3 chemical, and if you exported from or imported to
your plant site more than 30 metric tons of that Schedule 3 chemical
during calendar year 1996, or if you are a trading company and you
exported or imported more than 30 metric tons of a Schedule 3 chemical
during calendar year 1996, you must complete the
[[Page 39213]]
Certification Form, Forms 3-1, 3-3.3 and/or 3-3.4.
(2) Annual declaration for a specific chemical. (i) Declared plant
sites. If you are subject to the declaration requirements of Sec. 714.2
because one or more plants at your plant site produced more than 30
metric tons of a specific Schedule 3 chemical, and you also exported
from or imported to any plant on your plant site that Schedule 3
chemical in excess of 30 metric tons in the previous calendar year
beginning with exports and imports during calendar year 1997, you must
also declare the total quantity of such exports or imports, specifying
the quantity associated with each country, by completing additional
parts of Form 3-3.
(ii) Undeclared plant sites and trading companies. If your plant
site is not subject to the declaration requirements of Sec. 714.2 for a
specific Schedule 3 chemical and if you exported from or imported to
your plant site more than 30 metric tons of that Schedule 3 chemical
during the previous calendar year starting with calendar year 1997, or
if you are a trading company and you exported or imported more than 30
metric tons of a Schedule 3 chemical during the previous calendar year
starting with exports and imports during calendar year 1997, you must
complete the Certification Form, Form 3-1 and relevant parts of Form 3-
3.
(d) Quantities to be declared or reported.
(1) Country-by-country reporting. If you exported or imported more
than 30 metric tons of any one Schedule 3 chemical in the previous
calendar year, you must report all exports and imports of that Schedule
3 chemical by country, and indicate the total amount exported to or
imported from that country. Only indicate the total annual quantity
exported to or imported from a specific country if the total annual
quantity to or from that country is more than 1% of the applicable
threshold (i.e., more than 0.3 metric tons) of all other Schedule 3
chemicals). However, in determining whether your total exports and
imports worldwide for the year in question trigger declaration or
reporting requirements, 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 or imports per calendar
year per recipient country or source country, and round to the nearest
10 metric tons.
Note to Sec. 714.3: Under the Convention, the United States is
obligated to provide the OPCW an aggregate annual report of the
quantities of each Schedule 3 chemical imported and exported. The
U.S. Government will not submit your company-specific information
relating to the export or import of a Schedule 3 chemical declared
under this Sec. 714.3. The U.S. Government will add all import and
export information submitted by various facilities under this
section to produce a national aggregate annual report of country-by-
country trade for each Schedule 3 chemical.
Sec. 714.4 Advance declaration requirements for additionally planned
production of a Schedule 3 chemical.
You must notify BXA of any additional Schedule 3 production planned
after the annual declaration on anticipated activities has been
delivered to BXA. Only anticipated increases in production that will
increase production by an amount that changes the production range
originally declared in Block 3-3.1 on Form 3-3 must be declared. For
example, if you submitted a declaration on planned production that
indicated you anticipate producing between 200 and 1,000 metric tons of
a Schedule 3 chemical, and you now plan to produce between 1,000 and
10,000 metric tons of that same Schedule 3 chemical, you must notify
BXA of the additional planned production. You must notify BXA by
completing the Certification Form and Forms 3-1 and 3-3, and submitting
them to BXA no later than 21 days before the additional activity
begins.
Sec. 714.5 Frequency and timing of declarations.
Declarations and reports required under this part are due to BXA
according to the dates identified in Table 1 of this section. Required
declarations and reports include:
(a) Initial declarations on past production of any amount of
Schedule 3 chemicals for CW purposes since January 1, 1946;
(b) Initial declarations and reports on past production, imports
and exports during calendar year 1996;
(c) Annual declarations and reports on production, imports and
exports during the previous calendar year, beginning with declarations
for calendar year 1997; and
(d) Annual declarations on anticipated production during the next
calendar year beginning in calendar year 1999 for activities
anticipated for calendar year 2000.
Table 1 to Sec. 714.5.--Deadlines for Submission of Schedule 3
Declarations
------------------------------------------------------------------------
Declarations Applicable forms Due dates
------------------------------------------------------------------------
Initial Declaration (for
calendar year 1996):
Declared Plant Site Certification, 3-1, See note to this
(production). 3-2, 3-3 (if also table.
exported or
imported), A, B
(optional).
Initial Report on Exports
and Imports:
Undeclared Plant Site, Certification, 3-1, See note to this
Trading Company. 3-3.3 and 3-3.4. table.
Annual Declaration on Past
Activities (previous
calendar year, starting
with 1997):
Declared plant site Certification, 3-1, See note to this
(production). 3-2, 3-3 (if also table.
exported or
imported), A, B
(optional).
Annual Report on Exports and
Imports:
Undeclared Plant Site Certification, 3-1, See note to this
and Trading Company. 3-3.3 and 3-3.4. table.
Annual Declaration on Certification, 3-1, September 3 of each
Anticipated Production 3-3.1 and 3-3.2. year prior to the
(next calendar year). calendar year in
which anticipated
activities will
take place.
Declaration of Additionally Certification, 3-1, 21 calendar days
Planned Activities. 3-3.1 and 3-3.2. before the
additionally
planned activity
begins.
[[Page 39214]]
Initial Declaration on Past Certification, 3-1, See note to this
Production of Schedule 3 3-2, 3-4, A, B table.
Chemicals for CW Purposes. (optional).
------------------------------------------------------------------------
Note to Table 1: The declaration of past production for CW purposes, the
initial declaration of past production, exports and imports during
calendar year 1996 and annual declarations and reports for production,
exports and imports during calendar years 1997 and 1998 pursuant to
the provisions of this part will be due [90 days after the effective
date of the final rule]. Thereafter, annual declarations and reports
of past Schedule 3 activities will be due to BXA by February 13th of
each year.
Sec. 714.6 Amended declaration or report.
If, after submitting the original declaration or report, you
discover that the previously submitted information is not accurate
(e.g., change of quantity, addition of a new chemical, relocation of
facility, etc.), you must complete a new Certification Form and the
specific form 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 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..................................... (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
Sec.
715.1 Declaration requirements for the production of unscheduled
discrete organic chemicals (i.e. discrete organic chemicals not
declared under parts 712 through 714 of this subchapter).
715.2 Amended declaration.
715.3 Frequency and timing of declarations.
Supplement No. 1 to Part 715--Examples of Unscheduled Discrete Organic
Chemicals and Production Processes
Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR
36703.
Sec. 715.1 Declaration requirements for the production of unscheduled
discrete organic chemicals (i.e., discrete organic chemicals not
declared under parts 712 through 714 of this subchapter).
See Sec. 711.6 of this subchapter for information on obtaining the
forms you will need to declare production of unscheduled discrete
organic chemicals. See Supplement No. 1 to part 711 of this subchapter
for information pertaining to the protection of certain confidential
business information.
(a) Unscheduled discrete organic chemicals (UDOCs) subject to
declaration requirements under this part. Unscheduled discrete organic
chemicals (UDOCs) subject to declaration requirements under this part
are all chemicals containing carbon, except for the following:
(1) Those listed in Schedule 1, Schedule 2 or Schedule 3
(Supplement No. 1 to part 712, Supplement No. 1 to part 713 or
Supplement No. 1 to part 714 of this subchapter);
(2) Inorganic chemicals (e.g., carbon oxides, carbon sulfides,
metal carbonates, metal carbides or compounds of only a metal and
carbon);
Note to paragraph (a): 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 (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). Metal carbides or other compounds
consisting of only a metal as described above, and carbon, (e.g.,
calcium carbide (CaC2)).
(3) Chemicals and chemical mixtures produced through a biological
or bio-mediated process;
(4) Polymer substances and oligomers consisting of two or more
repeating units, and formed by the chemical reaction of monomeric or
polymeric substances;
(b) Declaration of production of unscheduled discrete organic
chemicals. (1)(i) Production quantities that trigger declaration
requirements. You must complete the Certification
[[Page 39215]]
Form, Form UDOC (consisting of 2 pages), and Form A if:
(A) One or more plants at your plant site produced by synthesis in
calendar year 1996 (for the initial declaration) or in the previous
calendar year (for an annual declaration) in excess of 30 metric tons
of an individual unscheduled discrete organic chemical containing
phosphorus, sulfur or fluorine (``PSF-chemicals'') that was, isolated
for:
(1) Use; or
(2) sale as a specific end product; or
(B) Your plant site produced by synthesis in calendar year 1996
(for the initial declaration) or the previous calendar year (for an
annual declaration) in excess of 200 metric tons aggregate of all
unscheduled discrete organic chemicals (including PSF-chemicals) that
were, isolated or captured for:
(1) Use; or
(2) Sale as a specific end product.
(ii) Completion of Form B is optional.
(2) Exception. You are not required to complete declarations under
this paragraph if your plant site exclusively produced hydrocarbons or
explosives.
(3) Examples. See Supplement No. 1 to this part for examples of
UDOCs subject to the declaration requirements of this part, examples of
chemicals not produced by synthesis and therefore not subject to
declaration requirements of this part, and for examples of processes
that are not considered production by synthesis.
(c) If you are exempt from declaration requirements under the
provisions of paragraph (a)(1) through (a)(4) of this section, you need
not complete and submit forms. If you need assistance on chemical
determinations or other CWC-related matters, contact the Office of
Chemical & Biological Controls and Treaty Compliance, Treaty Compliance
Division at (703) 235-1335.
Sec. 715.2 Amended declaration.
If, after submitting the original declaration, you discover that
the previously submitted information is not accurate (e.g., change of
quantity, addition of a new chemical, relocation of facility, etc.),
you must complete a new Certification Form and the specific form being
amended. Only complete that portion of each form that corrects the
previously submitted information.
Sec. 715.3 Frequency and timing of declarations.
Declarations required under this part are due to BXA according to
the dates identified in Table 1 of this section. Required declarations
include:
(a) Initial declarations for production of unscheduled discrete
organic chemicals during calendar year 1996.
(b) Annual declarations on past production of unscheduled discrete
organic chemicals beginning with production figures for calendar year
1997.
Table 1 to Sec. 715.3.--Deadlines for Submission of Declarations for
Unscheduled Discrete Organic Chemicals Facilities
------------------------------------------------------------------------
Declarations Applicable forms Due dates
------------------------------------------------------------------------
Initial Declaration
(calendar year 1996):
Plant Site.............. Certification, UDOC, See note to this
A, B (optional). table.
Annual Declaration on Past
Activities (previous
calendar year, starting
with 1997):
Plant Site.............. Certification, UDOC, See note to this
A, B (optional). table.
February 13 of each
year following past
activities
requiring
declaration.
------------------------------------------------------------------------
Note to Table 1: The initial declaration and annual declaration of past
production for calendar years 1997 and 1998 pursuant to the provisions
of this part will be due [90 days after the effective date of the
final rule]. Thereafter, annual reports of past unscheduled discrete
organic chemical activities will be due to BXA by February 13th of
each year.
Supplement No. 1 to Part 715--Examples of Unscheduled Discrete Organic
Chemicals (UDOCs) and Production Processes
(1) Examples of UDOCs that you must report under the provisions
of this part include, but are not limited to, the following, unless
they are involved in processes other than ``production'' (i.e.
chemical synthesis), or were not isolated for:
(i) Use; or
(ii) Sale as a specific end product:
(A) Acetophenone (CAS #98-86-2);
(B) 6-Chloro-2-Methyl Aniline (CAS #87-63-8);
(C) 2-Amino-3-Hydroxy benzoic Acid (CAS #548-93-6); and
(D) Acetone (CAS #67-64-1).
(2) The following examples illustrate those chemicals not
produced by synthesis and therefore not subject to declaration
requirements:
(i) UDOCs produced coincidentally as byproducts of a
manufacturing, production or waste treatment process that are not
isolated or captured for:
(A) Use; or
(B) Sale as a specific end product during the process and are
routed to, or escape from, the waste stream of a stack, incinerator,
or waste treatment system or any other waste stream;
(ii) Mixtures of UDOCs produced coincidentally and not isolated
for:
(A) Use; or
(B) 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
reported unscheduled DOCs.;
(iv) UDOCs produced by the mixing (i.e. the process of combining
or blending into one mass) of previously reported UDOCs; and
(v) Intermediate UDOCs in transient form completely converted to
another reportable UDOC in the same process, whether batch or
continuous, and not isolated for:
(A) Use; or
(B) Sale as a specific end product.
(3) Following are examples of processes that involve chemicals
or mixtures of chemicals that are not considered production by
synthesis, and, thus, the end products would not be reported under
the provisions of this part:
(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 Warrants for inspections.
716.4 Scope and conduct of inspections.
716.5 Notification, duration and frequency of inspections.
716.6 Facility agreements.
716.7 Requirements for provisions of samples.
716.8 Report of inspection-related costs.
[[Page 39216]]
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: Pub. L. 105-277, 112 Stat. 2681; 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).
(a) Overview. Each State Party to the CWC, including the United
States Government, 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 CWC. The Department of Commerce
is responsible for leading, hosting and escorting inspections of all
facilities in the United States, except Department of Defense and
Department of Energy facilities and other United States Government
facilities that notify the USNA of their decision to be excluded from
the CWCR. United States Government facilities are those owned by or
leased to the U.S. Government, including facilities that are
contractor-operated.
(b) Declared facilities subject to initial and routine inspections.
(1) Schedule 1 facilities. 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.
(2) Schedule 2 facilities. Your declared plant site is subject to
inspection if one or more plants on your plant site produced, processed
or consumed, in any of the three previous calendar years, or you
anticipate it will produce, process or consume in the next calendar
year, any Schedule 2 chemical in excess of the following:
(i) 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);
(ii) 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
(iii) 10 metric tons of any chemical listed in Schedule 2, Part B
in Supplement No. 1 to part 713 of this subchapter.
(3) Schedule 3 facilities. Your declared plant site is subject to
inspection if one or more plants on your plant site produced during the
previous calendar year, or you anticipate it 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).
(4) Unscheduled discrete organic chemical facilities. Your declared
plant site is subject to inspection if your plant site produced by
synthesis during the previous calendar year:
(i) More than 200 metric tons of unscheduled discrete organic
chemicals; or
(ii) More than 200 tons of an unscheduled discrete organic chemical
containing the elements phosphorus, sulfur or fluorine.
(c) Responsibilities of the Department of Commerce. As the host and
escort for the international inspector team for all industry
inspections, the Department of Commerce will lead on-site inspections,
provide preliminary notification to the operator of the industry site
of an impending inspection, dispatch an advance team to the site to
assist with inspection preparation, secure an appropriate warrant in
the event the facility does not consent to the inspection, escort the
inspection team on-site throughout the inspection process, assist the
inspection team with verification activities, during the initial
inspection, negotiate the development of a site-specific facility
agreement, if appropriate (see Sec. 716.6), and ensure that a routine
inspection adheres to the Convention, the Act, and any site-specific
facility agreement.
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
U. S. Government team, led by the Department of Commerce, and the OPCW
Technical Secretariat inspection team will develop draft site-specific
facility agreements (see Sec. 716.6) for the conduct of subsequent,
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 United States Government and the
OPCW pursuant to the Convention.
(3) On-site monitoring. Declared Schedule 1 facilities are subject
to monitoring by on-site instruments.
(b) Schedule 2 facilities. (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
facilities 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 data 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, taking into account, inter
alia, the following criteria:
(A) The toxicity of the scheduled chemicals and of the end-products
produced with it, 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 facilities, in addition to the
verification activities listed in paragraph (b)(1) of this section, the
U.S. Government team, led by the
[[Page 39217]]
Department of Commerce, and the OPCW Technical Secretariat inspection
team will develop draft site-specific facility agreements for the
conduct of subsequent, routine inspections (see Sec. 716.6).
(ii) Routine inspections. During routine inspections of declared
Schedule 2 facilities, the verification activities listed in paragraph
(b)(1) of this section will be carried out pursuant to site-specific
facility agreements developed during the initial inspections (see
Sec. 716.6), and concluded between the United States Government and the
OPCW pursuant to the Convention and the Act.
(c) Schedule 3 facilities. (1) Purposes of inspections. The general
aim of inspections of declared Schedule 3 facilities 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) Types of inspections. (i) Initial inspections. During initial
inspections of declared Schedule 3 facilities, in addition to the
verification activities listed in paragraph (c)(1) of this section, the
U.S. Government team, led by the Department of Commerce, and the OPCW
Technical Secretariat 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 Schedule 3 facilities, the owner, operator,
occupant or agent in charge of a facility or plant site may request
one.
(ii) Routine inspections. During routine inspections of declared
Schedule 3 facilities, the verification activities listed in paragraph
(c)(1) of this section will be carried out pursuant to site-specific
facility agreements developed during the initial inspections, if
applicable (see Sec. 716.6) and concluded between the United States
Government and the OPCW pursuant to the Convention and the Act.
(d) Unscheduled Discrete Organic Chemicals Facilities. Unscheduled
discrete organic chemical (UDOC) facilities will be subject to
inspection beginning April 29, 2000, (i.e., the fourth year after entry
into force of the Convention), unless the OPCW decides otherwise.
(1) Purposes of inspections. The general aim of inspections of
declared UDOC facilities 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) Types of inspections. (i) Initial inspections. During initial
inspections of declared UDOC facilities, in addition to the
verification activities listed in paragraph (d)(1) of this section, the
U.S. Government team, led by the Department of Commerce, and the OPCW
Technical Secretariat 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 facilities, the owner, operator, occupant
or agent in charge of a facility or plant site may request one.
(ii) Routine inspections. During routine inspections of declared
UDOC facilities, the verification activities listed in paragraph (d)(1)
of this section will be carried out pursuant to site-specific facility
agreements developed during the initial inspections, if applicable (see
Sec. 716.6), and concluded between the United States Government and the
OPCW pursuant to the Convention and the Act.
Sec. 716.3 Warrants for inspections.
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 will obtain 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 conducted in the least intrusive manner,
consistent with the effective and timely accomplishment of its purpose
as provided in the Convention. During inspections, inspectors will:
tour the plants producing scheduled chemicals, including storage areas,
feed lines, reaction vessels and ancillary equipment, control
equipment, and waste and effluent handling areas; will examine relevant
records; and may take samples as provided by the Convention and the
Act, and the facility agreement, if applicable.
(b) Effect of Facility Agreements. Routine inspections at
facilities or plant sites 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 operator of the facility to withhold
consent to an inspection request.
(c) Hours of inspections. Consistent with the provisions of the
Convention, the Department of Commerce 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.
(d) Health and safety regulations. In carrying out their
activities, inspectors and U.S. Government representatives accompanying
the inspectors shall observe health and safety regulations 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 will be set forth in the facility
agreement for Schedule 1 and Schedule 2 facilities, and for Schedule 3
and UDOC facilities, if applicable.
(e) Confidential business information. (1) Provisions of the Act
relating to confidential business information. The Act provides a
statutory exemption from disclosure in response to a Freedom of
Information Act request for certain information related to initial and
routine inspections reported to, or otherwise acquired by, the U. S.
Government as follows:
(i) Information included in categories specifically enumerated in
sections 103(g)(1) and 304(e)(2) of the Act:
(A) Financial data;
(B) Sales and marketing data (other than shipment data);
(C) Pricing data;
(D) Personnel data;
(E) Research data;
(F) Patent data;
(G) Data maintained for compliance with environmental or
occupational health and safety regulations;
(H) Data on personnel and vehicles entering and personnel 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
(ii) Information that qualifies as a trade secret under 5 U.S.C.
552(b)(4) (Freedom of Information Act) that is obtained:
(A) From a U.S. person; or
(B) Through the U.S. Government or the conduct of an inspection on
U.S. territory under the Convention.
(2) Exceptions to the Freedom of Information Act exemption. The Act
[[Page 39218]]
provides that the United States Government may disclose confidential
business information to the OPCW, to federal law enforcement agencies,
and, upon written request, to Congressional committees of appropriate
jurisdiction.
(3) Provisions of the Convention relating to confidential business
information. The Convention provides that States Parties may designate
information submitted to the Organization for the Prohibition of
Chemical Weapons (OPCW) as confidential, and requires the OPCW to limit
access to and to prevent disclosure of information so designated,
including specific information on inspections. 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.
(4) Disclosure of confidential business information during
inspections. During inspections, certain confidential business
information, as defined by the Act, may be disclosed to OPCW inspectors
and U.S. Government representatives hosting and escorting the
inspectors. Facilities being inspected are responsible for identifying
confidential business information to the U.S. Government before it is
disclosed to inspectors, so that appropriate marking and handling can
be arranged, in accordance with the provisions of the Convention, to
prevent further, unauthorized disclosure. Confidential business
information not related to the purpose of an inspection or not
necessary to the accomplishment of an inspection, as agreed by the U.S.
Government, may be removed from sight, shrouded, or otherwise not
disclosed.
(5) Disclosure of confidential business information following
inspections.
(i) Inspection-related confidential business information, as
defined by the Act, contained in inspection reports or otherwise in the
possession of the U.S. Government, is exempt from disclosure in
response to a Freedom of Information Act request.
(ii) The U.S. Government must disclose confidential business
information when such disclosure is deemed to be in the national
interest. The USNA, in coordination with the CWC interagency group,
will determine if disclosure of the confidential business information
is in the national interest. The Act provides for notification to the
affected person of intent to disclose confidential business
information, unless such notification of intent to disclose is contrary
to national security or law enforcement needs. If, after coordination
with the agencies that comprise the CWC interagency group, the USNA
determines that such disclosure is not contrary to national security or
law enforcement needs, the USNA will notify the person that submitted
the information or the person to whom the information pertains of the
intent to disclose the information.
(iii) 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 any
confidential information coming to their knowledge in the performance
of their official duties, even after termination of their employment.
Sec. 716.5 Notification, duration and frequency of inspections.
(a) Notification. (1)(i) Content of notice. Inspections of
facilities or plant sites may be made only upon issuance of written
notice by the U.S. National Authority to the owner and to the operator,
occupant or agent in charge of the premises to be inspected. The
Department of Commerce will provide preliminary notification to the
point of contact identified in declarations submitted by the facility.
If the United States is unable to provide actual written notice to the
inspection point of contact, the Department of Commerce, or if the
Department of Commerce is unable, the Federal Bureau of Investigation
may post notice prominently at the plant, plant site or other facility
or location to be inspected. The notice shall include all appropriate
information provided by the OPCW to the United States National
Authority concerning:
(i) The type of inspection;
(ii) the basis for the selection of the facility or locations for
the type of inspection sought;
(iii) the time and date that the inspection will begin and the
period covered by the inspection; and
(iv) the names and titles of the inspectors.
(ii) In addition to appropriate information provided by the OPCW in
its notification to the United States National Authority, the
Department of Commerce's preliminary notification will state whether an
advance team is available to assist the site in preparation for the
inspection.
(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 U.S. National
Authority of a subsequent (``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
preliminary notice to the inspection point of contact of the facility
as soon as possible after the OPCW notifies the United States of the
inspection.
(ii) Schedule 2 facilities. For declared Schedule 2 facilities, 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 and the
Department of Commerce will provide preliminary notice to the
inspection point of contact of the facility as soon as possible after
the OPCW notifies the United States of the inspection.
(iii) Schedule 3 and unscheduled discrete organic chemical
facilities. For declared Schedule 3 and discrete organic chemical
facilities, 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 preliminary notice
to the inspection point of contact of the facility as soon as possible
after the OPCW notifies the United States of the inspection.
(b) Duration 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 maximum duration of routine
inspections will be as stated in the facility agreement, unless
extended by agreement between the inspection team and the Department of
Commerce.
(2) Schedule 2 facilities. For declared Schedule 2 facilities, the
maximum duration of initial and routine inspections shall be 96 hours,
unless extended by agreement between the
[[Page 39219]]
inspection team and the Department of Commerce.
(3) Schedule 3 and discrete organic chemical facilities. For
declared Schedule 3 or discrete organic chemical facilities, the
maximum duration of initial and routine inspections shall be 24 hours,
unless extended by agreement between the inspection team and the
Department of Commerce.
(c) Frequency of inspections. The frequency of initial and routine
inspections are as follows:
(1) Schedule 1 facilities. As provided by the Convention, the
frequency of routine 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 facilities. As provided by the Convention and the
Act, the maximum number of routine inspections at 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.
(3) Schedule 3 facilities. As provided by the Convention, no 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 facilities in the United State may not exceed 20 per
calendar year. If a facility agreement is developed for a declared
Schedule 3 plant site, the frequency of inspections will be stated in
any facility agreement.
(4) Unscheduled Discrete Organic Chemicals. As provided by the
Convention, no 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 facilities in the United State
may not exceed 20 per calendar year. If a facility agreement is
developed for a declared unscheduled discrete organic chemical plant
site, the frequency of inspections will be stated in any facility
agreement.
Sec. 716.6 Facility agreements.
(a) Description and requirements. A facility agreement is a site-
specific agreement between the U.S. Government and the OPCW. Its
purpose is to define procedures for inspections of a specific declared
facility that is subject to inspection because of the type or amount of
chemicals it produces, processes or consumes.
(1) Schedule 1 facilities. The Convention requires that facility
agreements be concluded between the United States and the OPCW for all
declared Schedule 1 facilities. For Schedule 1 facilities required to
complete an initial declaration pursuant to part 713 of this
subchapter, the USNA will ensure that facility agreements between the
United States and the OPCW will be concluded within 180 days after
submission of data declarations to the OPCW. However, for any new
Schedule 1 facility, a facility agreement must be concluded before the
new Schedule 1 facility begins operations.
(2) Schedule 2 facilities. The Convention requires that a facility
agreement be concluded by the United States and the OPCW not later than
90 days after completion of the initial inspection of a Schedule 2
facility that is subject to on-site inspection. The USNA will ensure
that such facility agreements are concluded with the OPCW unless the
owner, operator, occupant or agent in charge of the facility and the
OPCW Technical Secretariat agree that such a facility agreement is not
necessary.
(3) Schedule 3 and unscheduled discrete organic chemical
facilities. If the owner, operator, occupant or agent in charge of a
Schedule 3 or unscheduled discrete organic chemical facility that is
subject to inspection requests a facility agreement prior to the first
routine inspection, the USNA will ensure that a facility agreement for
such a facility 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,
inspectors from the OPCW Technical Secretariat and the United States
Government team, led by the Department of Commerce accompanying such
inspectors, will negotiate a draft facility agreement. The Department
of Commerce will participate in the negotiation of, and approve, all
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 plant
sites are concluded 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 plant site, 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 agreement as to
documents and records to be provided, specific areas of a facility to
be inspected, site diagrams, sampling, photography, and 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: U.S. Department of Commerce, Bureau
of Export Administration, Treaty Compliance Division, 14th Street and
Pennsylvania Avenue, N.W., Room 2705, Washington, D.C. 20230-0001,
Telephone: (202) 501-7876.
Sec. 716.7 Requirements for provisions of 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, if the leader from the U.S. Department of
Commerce of the U.S. host team accompanying the OPCW Inspection Team
notifies the owner, operator, occupant or agent of charge of the
inspected facility that a sample is required. The owner, operator,
occupant or agent in charge of the premises shall
[[Page 39220]]
determine whether the sample shall be taken by representatives of the
premises or the inspection team or other individuals present during the
inspection.
Sec. 716.8 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. This information should be
reported to BXA on company letterhead at the address given in
Sec. 716.6(c), with the following notation: ``ATTN: Report of
Inspection-related Costs.''
Supplement No. 1 to Part 716.--Notification, Duration and Frequency of Inspections
----------------------------------------------------------------------------------------------------------------
Other (Unscheduled
Agents Schedule 1 Schedule 2 Schedule 3 discrete organic
chemicals)
----------------------------------------------------------------------------------------------------------------
Notice of routine inspection to 24 hours prior to 48 hours prior to 120 hours prior to 120 hours prior to
USG. arrival at the arrival at the arrival at the arrival at the
point of entry. plant site. plant site. plant site.
Duration of routine inspection.. As specified in 96 hours.......... 24 hours.......... 24 hours.
facility
agreement.
Maximum number of routine Determined by OPCW 2 per year per 2 per calendar 2 per calendar
inspections. based on plant site. year per plant year per plant
characteristics 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 USG*.
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.
---------------------------------------------------------------------------
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.
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
[[Page 39221]]
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 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
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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[[Page 39222]]
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.
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 held for 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, 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
[[Page 39223]]
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, all analysis activities will
immediately cease at the direction of the facility representative.
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, and the
inspected State Party representative.
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.
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 unless otherwise agreed by the inspected
State Party.
2. Pursuant to the Confidentiality Annex, the inspected State
Party 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 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.
[[Page 39224]]
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 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 panning
purposes): ______
(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 facility:
[[Page 39225]]
(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 D. 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 E. Procedures for the Removal Off-Site of Any Written Information,
Data, and Other Material 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 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 39226]]
----------------------------------------------------------------------------------------------------------------
Agreed procedures for use
------------------------------------------------------------------------------------------
Nature of Alternative for
Item of approved restriction(s) Indication of meeting inspection
inspection equipment (location, time, reason(s) (safety, Special handling or requirement(s), if
periods, etc.), if confidentiality, storage requirements so required by the
any etc.) inspection team
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Part B. Equipment which the inspected State Party Has Volunteered to
Provide
------------------------------------------------------------------------
Support to be Conditions
Item of equipment Procedures for provided, if (timing, costs,
use required 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:
[[Page 39227]]
----------------------------------------------------------------------
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 inspection team on inspected state
Paragraphs 1-8 in part A by the organization behalf of the party and To be paid by the
above after the organization during subsequently inspected state
inspection the in-country reimbursed by the party
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.
[[Page 39228]]
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 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 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
[[Page 39229]]
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.
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\
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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.
---------------------------------------------------------------------------
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\
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\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.
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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.
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 for the absence of undeclared scheduled
chemicals. 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 held for 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.
[[Page 39230]]
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 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
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.
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\4\ The authorized plant site representative is the owner or the
operator, occupant or agent in charge of the premises being
inspected.
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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, all analysis activities will
immediately cease at the direction of the plant site representative.
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, and the
inspected State Party representative.
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.
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 unless otherwise agreed by the inspected
State Party.
2. Pursuant to the Confidentiality Annex, the inspected State
Party 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
[[Page 39231]]
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. 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.
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\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.
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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 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
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\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.
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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)
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\7\ All references to time use a 24 hour clock.
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(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:------------------------------
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[[Page 39232]]
3. Inspection activities which could/could not 8 be
supported during non-working hours with notation of times and
activities:
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\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 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:
----------------------------------------------------------------------
----------------------------------------------------------------------
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
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\9\ Any figure indicated is without prejudice to paragraph 29 of
Part VII of the Verification Annex.
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(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:
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2. Health and safety regulations applicable at the plant site:
(a) federal regulations:
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(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/remark
S
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
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
[[Page 39233]]
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
----------------------------------------------------------------------------------------------------------------
Agreed procedures for use
------------------------------------------------------------------------------------------
Nature of Alternative for
Item of approved restrictions(s) Indication of meeting inspection
inspection equipment (location, time, reason(s) (safety, Special handling or requirement(s), if
periods, etc.), if confidentiality, storage requirements so required by the
any etc.) inspection team
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Part B. Equipment which the inspected State Party Has Volunteered to
Provide
------------------------------------------------------------------------
Support to be Conditions
Item of equipment Procedures for provided, if (timing, costs,
use required 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 may provide a site tour at the request
of the inspection team. Such tour shall take no more than 2 hours.
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:
(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.
\11\ Areas to be inspected may include:
(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.
---------------------------------------------------------------------------
[[Page 39234]]
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)
----------------------------------------------------------------------
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 inspection team on inspected state
Paragraphs 1-8 in Part A by the organization behalf of the party and To be paid by the
above after the organization during subsequently inspected State
inspection the in-country reimbursed by the Party
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
----------------------------------------------------------------------
[[Page 39235]]
----------------------------------------------------------------------
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 Requirements for provisions of samples.
717.4 Report of inspection-related costs.
Authority: Pub. L. 105-277, 112 Stat. 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, through consultation
between themselves or through the OPCW, to resolve such issues, 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
721 of this subchapter) must provide information required by the
Commerce Department 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.
Sec. 717.2 Challenge inspections.
(a) Facilities subject to challenge inspection. Any person or
facility in the United States is subject to a challenge inspection by
the OPCW concerning possible non-compliance with the requirements of
the Convention. Any person or facility subject to the CWCR (parts 710
through 721 of this subchapter) (i.e., not owned by the Department of
Defense, Department of Energy or other United States government agency
that notifies the USNA of their decision to be excluded from the CWCR),
whether a declared facility or not, may be subject to a challenge
inspection by the OPCW concerning possible non-compliance with the
requirements set forth in parts 712 through 716 of this subchapter. The
Department of Commerce will host and escort the international inspector
team for all challenge inspections of persons or facilities subject to
CWCR, will assist the inspection team in fulfilling its mandate, and
will ensure that a challenge inspection adheres to the Convention, the
Act, and any site-specific facility agreement.
(b) 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 seek criminal warrants as
provided by the Act.
(c) Notification of challenge inspection. Challenge inspections may
be made only upon issuance of written notice by the U.S. National
Authority to the owner and to the operator, occupant or agent in charge
of the premises. The Department of Commerce will provide preliminary
notification to the owner and the operator, occupant or agent in charge
of the premises selected for a challenge inspection. If the United
States is unable to provide actual written notice to the inspection
point of contact, the Department of Commerce, or if the Department of
Commerce is unable, the Federal Bureau of Investigation 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. 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.
(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) The evidence or reasons provided by the requesting State Party
to the Convention for seeking the inspection.
(ii) In addition to appropriate information provided by the OPCW in
its notification to the United States National Authority, the
Department of Commerce's preliminary notification at the facility or
plant site will state whether an advance team is available to assist
the site in preparation for the inspection.
(d) Duration of challenge inspections. Challenge inspections will
not exceed 84 hours, unless extended by agreement between the
inspection team and the Department of Commerce.
(e) Scope and conduct of inspections. (1) General. Each inspection
shall be limited to the purposes described in Sec. 717.2 and conducted
in the least intrusive manner, consistent with the effective and timely
accomplishment of its purpose as provided in the Convention.
(2) Hours of inspections. Consistent with the provisions of the
Convention, the Department of Commerce 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.
(3) Effect of facility agreements. For facilities with facility
agreements, access and activities within the final perimeter shall be
unimpeded within the boundaries established by the agreements.
Challenge inspections will be conducted in accordance with facility
agreements concluded between the U.S. Government and the OPCW, as
applicable. 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. For facilities without facility
agreements or in areas outside the boundaries established by facility
agreements, challenge inspections will be conducted on a managed access
basis.
(4) Health and safety regulations. In carrying out their
activities, inspectors and U.S. Government representatives accompanying
the inspectors shall
[[Page 39236]]
observe health and safety regulations established at the inspection
site, including those for the protection of controlled environments
within a facility and for personal safety.
(5) Confidential business information. (i) Provisions of the Act
relating to confidential business information. The Act provides a
statutory exemption from disclosure in response to a Freedom of
Information Act request for certain information related to initial and
routine inspections reported to, or otherwise acquired by, the U. S.
Government as follows:
(A) Information included in categories specifically enumerated in
sections 103(g)(1) and 304(e)(2) of the Act:
(1) Financial data;
(2) Sales and marketing data (other than shipment data);
(3) Pricing data;
(4) Personnel data;
(5) Research data;
(6) Patent data;
(7) Data maintained for compliance with environmental or
occupational health and safety regulations;
(8) Data on personnel and vehicles entering and personnel passenger
vehicles exiting the facility;
(9) Any chemical structure;
(10) Any plant design, process, technology or operating method;
(11) Any operating requirement, input, or result that identifies
any type or quantity of chemicals used, processed or produced;
(12) Any commercial sale, shipment or use of a chemical; or
(B) Information that qualifies as a trade secret under 5 U.S.C.
552(b)(4) (Freedom of Information Act) that is obtained:
(1) From a U.S. person; or
(2) Through the U.S. Government or the conduct of an inspection on
U.S. territory under the Convention.
(ii) Exception to Freedom of Information Act exemption. The Act
provides that the United States Government may disclose confidential
business information to the OPCW, to federal law enforcement agencies,
and, upon written request, to Congressional committees of appropriate
jurisdiction.
(iii) Provisions of the Convention relating to confidential
business information. The Convention provides that States Parties may
designate information submitted to the Organization for the Prohibition
of Chemical Weapons (OPCW) as confidential, and requires the OPCW to
limit access to and to prevent disclosure of information so designated,
including specific information on inspections. 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.
(iv) Disclosure of confidential business information during
inspections. During inspections, certain confidential business
information, as defined by the Act, may be disclosed to OPCW inspectors
and U.S. Government representatives hosting and escorting the
inspectors. Facilities being inspected are responsible for identifying
confidential business information to the U.S. Government before it is
disclosed to inspectors, so that appropriate marking and handling can
be arranged, in accordance with the provisions of the Convention, to
prevent further, unauthorized disclosure. Confidential business
information not related to the purpose of an inspection or not
necessary to the accomplishment of an inspection, as agreed by the
United States Government team accompanying the OPCW Inspection Team,
may be removed from sight, shrouded, or otherwise not disclosed.
(v) Disclosure of confidential business information following
inspections. (A) Inspection-related confidential business information,
as defined by the Act, contained in inspection reports or otherwise in
the possession of the U.S. Government, is exempt from disclosure in
response to a Freedom of Information Act request.
(B) The United States Government must disclose confidential
business information when such disclosure is deemed to be in the
national interest. The USNA, in coordination with the CWC interagency
group, shall determine whether disclosure of the confidential business
information is in the national interest and not contrary to national
security or law enforcement needs. The Act provides for notification to
the affected person of intent to disclose confidential business
information, 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
determines that such disclosure is not contrary to national security or
law enforcement needs, the USNA will notify the person that submitted
the information or the person to whom the information pertains of the
intent to disclose the information.
(C) 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 any
confidential information coming to their knowledge in the performance
of their official duties, even after termination of their employment.
Sec. 717.3 Requirements for provisions of 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, if the leader from the U.S. Department of
Commerce of the U.S. host team accompanying the OPCW Inspection Team
notifies the owner, operator, occupant or agent in charge of the
inspected facility that a sample is required. The owner, operator,
occupant or agent in charge of the premises shall determine whether the
sample shall be taken by representatives of the premises or the
inspection team or other individuals present during the inspection.
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. This information should be
reported to BXA on company letterhead at the address given in
Sec. 716.6(c) of this subchapter, with the following notation: ``ATTN:
Report of Inspection-related Costs.''
PART 718--INTERPRETATIONS
[RESERVED]
Note: This part is reserved for interpretations of the CWCR
(parts 710 through 721 of this subchapter) and also for
applicability of OPCW decisions.
PART 719--ENFORCEMENT
Sec.
719.1 Scope and definitions.
719.2 Violations and civil penalties.
719.3 Denial of export privileges.
719.4 Additional sanctions and other remedial action available.
719.5 Initiation of administrative proceedings.
719.6 Demand for hearing and answer.
719.7 Representation.
719.8 Filing and service of papers other than the NOVA.
719.9 Summary decision.
[[Page 39237]]
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: Pub. L. 105-277, 112 Stat. 2681; 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. 719.1 Scope and definitions.
(a) Scope. This part 719 covers administrative enforcement
proceedings for two categories of violations:
(1) Violations of the CWCR (parts 710 through 721 of this
subchapter) that are subject to the imposition of civil penalties by
BXA (``Sec. 719.1(a)(1) cases''). BXA will investigate possible
violations, prepare charges, initiate administrative proceedings,
negotiate settlements, and issue orders that resolve the cases. BXA
will be represented in these proceedings by the Office of Chief
Counsel; and
(2) Violations of Section 306 or 405 of the CWCIA, which are
subject to the imposition of civil penalties by the Department of State
pursuant to section 501(a) of the CWCIA and 22 CFR Part 103
(``Sec. 719.1(a)(2) cases''). The Department of Commerce will
investigate possible violations, prepare charges, provide legal
representation, negotiate settlements, and make requests and
recommendations to State Department officials with respect to the
initiation and resolution of administrative proceedings. Notice will be
given and orders will be issued by State Department officials under 22
CFR part 103, but, in all other respects, this part 719 shall apply.
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 in
this part 719 only. For definitions of terms applicable to the whole
CWCR, see part 710 of this subchapter.
Administrative law judge (ALJ). The person authorized to conduct
hearings in administrative enforcement proceedings.
Assistant Secretary for Export Enforcement. The Assistant Secretary
for Export Enforcement, Bureau of Export Administration, United States
Department of Commerce,.
CWCIA. The Chemical Weapons Convention Implementation Act of 1998
(Pub. L. 105-277, Division I).
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.
Office of Chief Counsel. The Office of Chief Counsel for Export
Administration, United States Department of Commerce.
Party. For purposes of a Sec. 719.1(a)(1) case, BXA and any person
named as a respondent under this part are parties. For purposes of a
Sec. 719.1(a)(2) case, the Department of State and any person named as
a respondent under this part are parties.
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 and civil penalties.
(a) Violations subject to civil penalties under the CWCR (parts 710
through 721 of this subchapter). (1) Violations. (i) 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:
(A) The import is from a State Party;
(B) The import is for research, medical, pharmaceutical, or
protective purposes;
(C) The import is in types and quantities strictly limited to those
that can be justified for such purposes; and
(D) The importing person has notified the Department of Commerce 45
calendar days prior to the import pursuant to Sec. 712.4 of this
subchapter.
(ii) 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 713) from any country other than a State Party.
(2) Civil penalty. A civil penalty not to exceed $11,000 may be
imposed by the Assistant Secretary for Export Enforcement in accordance
with this part on any person for each violation of paragraph (a)(1)(i)
or (ii) 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)).
---------------------------------------------------------------------------
(b) Violations subject to civil penalties under section 501(a) of
the CWCIA. (1) Violations. (i) Refusal to permit entry or inspection.
No person may willfully fail or refuse to permit entry or inspection,
or to disrupt, delay or otherwise impede an inspection, authorized by
the CWCIA.
(ii) Failure to establish or maintain records. No person may
willfully fail or refuse:
(A) To establish or maintain any record required by the CWCIA or
the CWCR; or
(B) To submit any report, notice, or other information to the
United States Government in accordance with the CWCIA or the CWCR; or
(C) To permit access to or copying of any record required by the
CWCIA or regulations issued thereunder, including information that is
exempt from disclosure under the Freedom of Information Act pursuant to
section 103(g) of the CWCIA or Sec. 711.2 or Supplement No. 1 to part
711 of this subchapter.
(2) Civil penalties. (i) 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 (b)(1)(i) 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.
(ii) Civil penalty for failure to establish or maintain records.
Any person that is determined to have willfully failed or refused to
establish or maintain records or submit reports, notices or other
information required by the CWCIA or CWCR, or to permit access to or
copying of records exempt from disclosure under the CWCIA or CWCR, as
set forth in paragraph (b)(1)(ii) of this section, shall pay a civil
penalty in an amount not to exceed $5,000 for each violation.
Sec. 719.3 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, of
knowingly:
[[Page 39238]]
(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 in, or attempting
or conspiring to develop, produce, otherwise acquire, transfer directly
or indirectly, receive, stockpile, retain, own, possess, or use, or
threaten to use, a chemical weapon. See part 720 of this subchapter for
administrative provisions relating to violations of 18 U.S.C. 229.
Sec. 719.4 Additional sanctions and other remedial action available.
(a) Criminal penalties for Sec. 719.1(a)(1) cases. Whoever
willfully violates Sec. 719.2(a)(1)(i) or (ii) 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.
(b) Criminal penalties for Sec. 719.1(a)(2) cases. Any person that
knowingly violates the CWCIA by willfully failing or refusing to permit
entry or inspection; or by willfully disrupting, delaying or otherwise
impeding an inspection authorized by the CWCIA; 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 CWCIA or CWCR (parts 710 through 721 of this
subchapter), 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.
(c) Criminal penalties for development or use of a chemical weapon.
Any person that violates the CWCIA by knowingly:
(1) Developing, producing, otherwise acquiring, transferring
directly or indirectly, receiving, stockpiling, retaining, owning,
possessing, or using, or threatening to use, any chemical weapon; or
(2) Assisting or inducing, in any way, any person to violate the
activities specified in paragraph (c)(1) of this section, or attempting
or conspiring to violate the activities specified in paragraph (c)(1)
of this section, shall be fined or imprisoned for a term of years, or
both, or, if the death of another person results, shall be punished by
death or imprisoned for life, in accordance with Section 229A of Title
18 of the United States Code.
(d) Civil penalty for development or use of a chemical weapon. Any
person that violates the CWCIA as set forth in paragraph (c) of this
section, may also, upon proof of such violation by preponderance of the
evidence, be subject to a civil penalty in an amount not to exceed
$100,000 for each violation.
(e) Criminal forfeiture. 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:
(1) Any property, real or personal, owned, possessed, or used by a
person involved in the offense;
(2) Any property constituting, or derived from, and proceeds the
person obtained, directly or indirectly, as the result of such
violation; and
(3) Any of the property used in any manner or part, to commit, or
to facilitate the commission of, such violation. 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.
(f) 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
(i) 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 CWCIA, or compel the taking
of any action required by or under the CWCIA or the Convention.
Sec. 719.5 Initiation of administrative proceedings.
(a) Initiation of a Sec. 719.1(a)(1) case. (1) Notice of Violation
and Assessment (NOVA). The Director of the Office of Export
Enforcement, Bureau of Export Administration, may initiate an
administrative enforcement proceeding in a Sec. 719.1(a)(1) case by
issuing a NOVA and a proposed order.
(2) 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, attaching a draft NOVA
and proposed order, and giving the respondent a specified period of
time in which to contact BXA to discuss settlement of the proposed
allegations. 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
initiate an administrative enforcement proceeding as set forth in
paragraphs (a)(1) and (c) of this section.
(b) Initiation of Sec. 719.1(a)(2) case. (1) Request for Notice of
Violations 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 in
a Sec. 719.1(a)(2) case under this Sec. 719.5(b)(1) and 22 CFR 103.4.
If the request is in accordance with applicable law, the Assistant
Secretary for Arms Control will provide notice of the initiation of
proceedings through issuance of a NOVA. The Office of Chief Counsel
shall serve the NOVA as directed by the Secretary of State.
(2) 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 (b)(1) of this
part.
(c) Provisions applicable to all proceedings. (1) 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, in a Sec. 719.2(a)(1) case, unappealable on signature of the
Assistant Secretary for
[[Page 39239]]
Export Enforcement, or, in a Sec. 719.2(a)(2) case, 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.
(2) 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.
(3) Notice. Notice of the intent to charge or of the initiation of
formal proceedings, shall be given to the respondent by sending, via
first class mail, facsimile, or by personal delivery, the relevant
documents to the respondent (or respondent's agent for service of
process or attorney).
Sec. 719.6 Demand for hearing and answer.
(a) Section 719.1(a)(1) case. (1) Time to answer. If the respondent
wishes to contest the NOVA and proposed order, the respondent must
answer the NOVA within 30 days from the date of service of the NOVA.
The answer must be filed with the ALJ and served on the Office of Chief
Counsel, and any other address(es) specified in the NOVA, in accordance
with Sec. 719.8.
(2) Demand for hearing. If the respondent wishes to have a hearing,
a written demand for hearing must be submitted with the respondent's
answer. If BXA wishes to have a hearing, it must file a written demand
for hearing with the ALJ within 30 days after service of the
respondent's answer. The failure of BXA or the respondent to make a
timely written demand for hearing shall be deemed a waiver of the
party's right to a hearing, except for good cause shown.
(b) Section 719.1(a)(2) case. If the respondent wishes to contest
the NOVA and proposed order issued by the Secretary of State, the
respondent must demand a hearing in writing within 15 days from the
date of the NOVA. If the respondent demands a hearing, the respondent
must answer the NOVA within 30 days from the date of the demand for
hearing. The request for hearing and answer must be filed with the
Administrative Law Judge, 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.
(c) Provisions applicable to all proceedings. (1) 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.
(2) English required. The request for hearing, answer, and all
other papers and documentary evidence must be submitted in English.
(3) 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 United States 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
Administrative Law Judge, or, in cases where settlement negotiations
occur before any filing with the Administrative Law Judge, 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 Administrative Law
Judge (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 personal delivery, by
facsimile, or by mailing (first class mail or express mail, postage
prepaid) one copy of each paper to each party in the proceeding. The
Department of State is a party to Sec. 719.1(a)(2) 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 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
[[Page 39240]]
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 as defined by the CWCIA.
(b) Interrogatories and requests for admission or production of
documents. A party may serve on any party interrogatories, requests for
admission, or requests for production of documents for inspection and
copying, and a party concerned may apply to the ALJ for such
enforcement or protective order as that party deems warranted with
respect to such discovery. The service of a discovery request shall be
made at least 20 days before the scheduled date of the hearing unless
the ALJ specifies a shorter time period. Copies of interrogatories,
requests for admission and requests for production of documents and
responses thereto shall be served on all parties and a copy of the
certificate of service shall be filed with the ALJ. Matters of fact or
law of which admission is requested shall be deemed admitted unless,
within a period designated in the request (at least 10 days after
service, or within such additional time as the ALJ may allow), the
party to whom the request is directed serves upon the requesting party
a sworn statement either denying specifically the matters of which
admission is requested or setting forth in detail the reasons why the
party to whom the request is directed cannot truthfully either admit or
deny such matters.
(c) Depositions. Upon application of a party and for good cause
shown, the ALJ may order the taking of the testimony of any person by
deposition and the production of specified documents or materials by
the person at the deposition. The application shall state the purpose
of the deposition and set forth the facts sought to be established
through the deposition.
(d) Enforcement. The ALJ may order a party to answer designated
questions, to produce specified documents or things or to take any
other action in response to a proper discovery request. If a party does
not comply with such an order, the ALJ may make a determination or
enter any order in the proceeding as the ALJ deems reasonable and
appropriate. The ALJ may strike related charges or defenses in whole or
in part or may take particular facts relating to the discovery request
to which the party failed or refused to respond as being established
for purposes of the proceeding in accordance with the contentions of
the party seeking discovery. In addition, enforcement by any district
court of the United States in which venue is proper may be sought as
appropriate.
Sec. 719.11 Subpoenas.
(a) Issuance. Upon the application of any party, supported by a
satisfactory showing that there is substantial reason to believe that
the evidence would not otherwise be available, the ALJ may issue
subpoenas 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 shall be to the address to
which the NOVA was sent or to such other address as 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) 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 CWCIA. Where the
ALJ determines that documents containing classified or sensitive matter
must be made available to a respondent in order to avoid prejudice, the
ALJ may direct the government 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.
[[Page 39241]]
(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
interests of justice.
(b) Hearing procedure. Hearings will be conducted in a fair and
impartial manner by the ALJ. The ALJ may limit attendance at any
hearing or portion thereof to the parties, their representatives and
witnesses if the ALJ deems this necessary or advisable in order to
protect sensitive matters from improper disclosure. 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.
(c) Testimony and record. (1) Witnesses will testify under oath or
affirmation. A verbatim record of the hearing and of any other oral
proceedings will be taken by reporter or by electronic recording,
transcribed and filed with the ALJ. A respondent may examine the
transcript and may obtain a copy by paying any applicable costs.
(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 within which to file and serve an answer to
a NOVA and proposed order, except that for Sec. 719.1(a)(2) cases, 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) Decisions in Sec. 719.1(a)(1) cases. (1) Initial decision.
After considering the entire record in a Sec. 719.1(a)(1) case, the ALJ
will issue an initial decision based on a preponderance of the
evidence. The decision will include findings of fact, conclusions of
law, and a decision based thereon as to whether the respondent has
violated the CWCR (parts 710 through 721 of this subchapter). 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 allegations 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, as provided in this part. The decision and
order shall be served on each party, and shall become effective as the
final decision of the Department 30 days after service, unless an
appeal is filed in accordance with paragraph (a)(2) of this section.
(2) Grounds for appeal. (i) A party may, within 30 days of the
ALJ's initial decision, 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 Chief
Counsel for Export Administration and all other parties. Petitions for
review may be filed only on one or more of the following grounds:
(A) That a necessary finding of fact is omitted, erroneous or
unsupported by substantial evidence of record;
(B) That a necessary legal conclusion or finding is contrary to
law;
(C) That prejudicial procedural error occurred; or
(D) That the decision or the extent of sanctions is arbitrary,
capricious or an abuse of discretion.
(ii) The appeal must specify the grounds on which the appeal is
based and the provisions of the order from which the appeal was taken.
(3) Effect of appeal. The filing of an appeal shall not stay the
operation of any order, unless the order by its express terms so
provides or unless the Under Secretary for Export Administration, upon
application by a party and with opportunity for response, grants a
stay.
(4) 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.
(5) Decisions. The 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.
(b) Decisions in Sec. 719.1(a)(2) cases. (1) Initial decision.
After considering the entire record in Sec. 719.1(a)(2) cases, the ALJ
will issue an initial decision based on a preponderance of the
evidence. The decision will include findings of fact, conclusions of
law, and a decision based thereon as to whether the respondent has
violated the CWCIA or 22 CFR part 103. 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 allegations 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.
(2) Factors considered in assessing penalties. In determining the
amount of
[[Page 39242]]
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 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.
(3) Certification of initial decision. The ALJ shall immediately
certify the initial decision and order to the Executive Director of the
Office of Legal Adviser, U.S. Department of State, 2201 C Street, NW,
Room 5519, Washington, DC 20520, and to the Office of Chief Counsel at
the address in Sec. 719.8, by personal delivery or overnight mail.
(4) Review of initial decision. The initial decision shall become
the final agency decision and order unless, within 30 days, the
Director of the USNA and International Security modifies or vacates it,
with or without conditions, in accordance with 22 CFR 103.8.
Sec. 719.19 Settlement.
(a) Section 719.1(a)(1) cases. (1) Settlements based on letter of
intent to charge. In Sec. 719.1(a)(1) cases in which settlement is
reached on the basis of a letter of intent to charge, the draft NOVA,
proposed order, and a recommended settlement agreement will be
submitted to the Assistant Secretary for Export Enforcement for
approval and signature. If the Assistant Secretary for Export
Enforcement refuses to approve the settlement, the Assistant Secretary
for Export Enforcement will notify the parties and the case will
proceed as though no settlement proposal had been made. If the
Assistant Secretary for Export Enforcement does approve the settlement,
the Assistant Secretary for Export Enforcement will issue an
appropriate order, and no action will be required of the ALJ.
(2) Settlements following demand for hearing. 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. If settlement is reached, a
draft NOVA, proposed order, and recommended settlement agreement will
be submitted to the Assistant Secretary for Export Enforcement for
approval and signature. If the Assistant Secretary for Export
Enforcement approves the proposal, he/she will issue an appropriate
order, and notify the ALJ that the case is withdrawn from adjudication.
If the Assistant Secretary for Export Enforcement does not approve the
proposal, then he/she will notify the parties of the disapproval, and
settlement negotiations will resume or the case will proceed to
adjudication by the ALJ as though no settlement proposal had been made.
(b) Section 719.1(a)(2) cases. (1) Settlements before demand for
hearing. 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.
(2) Settlements following demand for hearing. 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) Provisions applicable to all proceedings. (1) 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.
(2) 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 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. Documents filed with the ALJ are available immediately
upon filing, except for any portion of the record for which a request
for segregation is made. Parties that seek to restrict access to any
portion of the record under paragraph (b) of this section must make
such a request, together with the reasons supporting the claim of
confidentiality, simultaneously with the submission of material for the
record.
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 (parts 710 through 721 of this subchapter). This
[[Page 39243]]
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 CWCIA,
or the CWCR (parts 710 through 721 of 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,
Telephone: (202) 482-1208, Facsimile: (202) 482-0964.
PART 720--DENIAL OF EXPORT PRIVILEGES
Sec.
720.1 Penalties for violations of 18 U.S.C. 229.
720.2 Administration action denying export privileges.
Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR
36703.
Sec. 720.1 Penalties for violations of 18 U.S.C. 229.
(a) Denial of export privileges for violations of 18 U.S.C. 229.
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 Sec. 719.21 of this subchapter if that person has been
convicted under Title 18, Section 229 of the United States Code of
knowingly:
(1) Developing, producing, otherwise acquiring, transferring
directly or indirectly, receiving, stockpiling, retaining, owning,
possessing, or using, or threatening to use, a chemical weapon; or
(2) Assisting or inducing, in any way, any person to violate
paragraph (a)(1) of this section, or attempting or conspiring to
violate paragraph (a)(1).
(b) [Reserved]
Sec. 720.2 Administrative action denying export privileges.
(a) Denial of export privileges. The Assistant Secretary for Export
Enforcement may deny the export privileges, including permission to
apply for or use any export license or license exception, of any person
who has been convicted of violating Section 229 of Title 18, United
States Code.
(b) Notice. The Office of Chief Counsel for Export Administration
shall notify any person convicted of Section 229, Title 18, United
States Code, of any intent by BXA to deny that person's export
privileges pursuant to paragraph (a) of this section. 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, and provide that the
person may request a hearing before the Administrative Law Judge within
30 days on the issue of the proposed length of the denial of export
privileges.
(c) Waiver. The failure of the convicted person to file a request
for a hearing within the time provided constitutes a waiver of the
person's right to appear and contest the denial of export privileges
that BXA intends to impose. If no hearing is requested, the Assistant
Secretary for Export Enforcement will order that export privileges be
denied as provided in the notification letter.
(d) Hearing. Any hearing that is granted by the ALJ shall be
conducted in accordance with the procedures set forth in part 719 of
this subchapter. The only issue that is a proper subject of a hearing
is the length of the denial of export privileges.
(e) Initial decision and order. After considering the entire record
in the proceeding, the ALJ will issue a initial decision, based on a
preponderance of the evidence, as to whether or for what length of time
the convicted person will be denied export privileges. 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 the denial. The ALJ shall immediately certify any
initial decision and order to the Under Secretary for Export
Administration, and shall also immediately serve the initial decision
and order on all parties by personal delivery or overnight mail.
(f) Appeal from initial decision or order. The initial decision of
the ALJ, imposed after a requested hearing, may be appealed to the
Under Secretary in accordance with the procedures set forth in
Sec. 719.16(b) of this subchapter. The order of the Assistant
Secretary, imposed when no hearing was requested, may be appealed to
the ALJ through a motion to show cause why the order should be set
aside and a hearing granted. The ALJ has discretion to set aside the
Assistant Secretary's order and schedule a hearing on the issue of the
length of denial of export privileges.
(g) Final decision. Unless the Under Secretary, within 30 days of
the date of the initial decision, modifies or vacates the initial
decision and order, the ALJ's decision and order shall become effective
as the final decision of the Department of Commerce. If the Under
Secretary does modify or vacate the initial decision and order, the
order of the Under Secretary becomes the final order of the Department
of Commerce and the United States. The final decision and order shall
be served on the parties and will be publicly available.
(h) 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 Act. 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--RECORDKEEPING
Sec.
721.1 Records to be retained.
721.2 Original records required.
721.3 Reproduction of original records.
721.4 Retention of records.
721.5 Inspection of records.
Authority: Pub. L. 105-277, 112 Stat. 2681; E.O. 13128, 64 FR
36703.
Sec. 721.1 Records to be retained.
(a) You must maintain records relating to your activities that are
regulated by the CWCR (parts 710 through 721 of this subchapter),
including the following:
(1) Forms, reports, chemical determinations (classifications) and
notifications submitted to BXA pursuant to parts 712 through 715 of
this subchapter; and
(2) Notes, memoranda, correspondence or other records pertaining to
documentation listed in paragraph (a)(1) of this section, including
records pertaining to production, processing, consumption, export or
import of chemicals subject to declaration under parts 712 through 715
of this subchapter, including records of your acquisition or
disposition of any products or chemicals that are subject to the
provisions of the CWCR.
(b) [Reserved]
Sec. 721.2 Original records required.
You must maintain the original records in the form in which you
receive or create them unless you meet all of the conditions of
Sec. 721.3 relating to reproduction of records. If the original record
does not meet the
[[Page 39244]]
standards of legibility and readability described in Sec. 721.3 and you
intend to rely on that record to meet the recordkeeping requirements of
the EAR, you must retain the original record.
Sec. 721.3 Reproduction of original records.
(a) You may maintain reproductions instead of the original records
provided all of the requirements of paragraph (b) of this section are
met.
(b) 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:
(1) The system must be capable of reproducing all records on paper.
(2) 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 of paper documents in legible
form.
(3) 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.)
(4) The system must preserve the initial image (including both
obverse and reverse sides 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.
(5) You must establish written procedures to identify the
individuals who are responsible for the operation, use and maintenance
of the system.
(6) You must establish written procedures for inspection and
quality assurance of records in the system and document the
implementation of those procedures.
(7) The system must be complete and contain all records required to
be kept by this part or the regulated person must provide a method for
correlating, identifying and locating records relating to the same
transaction(s) that are kept in other record keeping systems.
(8) You must keep a record of where, when, by whom, and on what
equipment the records and other information were entered into the
system.
(c) 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 relating to a
particular transaction based on any one of the following criteria:
(1) The name(s) of the parties to the transaction;
(2) Any country(ies) connected with the transaction;
(3) Chemical Abstract Service Registry number; or
(4) A document reference number that was on any original document.
(d) Requirements applicable to a system based on photographic
processes. For systems based on photographic, photostatic, or miniature
photographic processes, the regulated person must maintain a detailed
index of all records in the system that is arranged in such a manner as
to allow immediate location of any particular record in the system.
Sec. 721.4 Retention of records.
(a) Five year retention period. All records required to be kept by
this part must be retained for five years from the due date of forms,
notifications, chemical determinations (classifications) or reports
required by parts 712 through 715, 716 and 717 of this subchapter.
(b) 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.
Sec. 721.5 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 in accordance with section 405(3) of the Act. This requires that
you make available the equipment and, if necessary, knowledgeable
personnel for locating, reading, and reproducing any record in the
system.
Dated: July 7, 1999.
R. Roger Majak,
Assistant Secretary for Export Administration.
[FR Doc. 99-18230 Filed 7-20-99; 8:45 am]
BILLING CODE 3510-33-P
