[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]]

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Part II





Department of Commerce





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Bureau of Export Administration



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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.
---------------------------------------------------------------------------

    \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
---------------------------------------------------------------------------

    \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.

---------------------------------------------------------------------------

[[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.
---------------------------------------------------------------------------

    \3\ The authorized facility representative is the owner or the 
operator, occupant or agent in charge of the premises being 
inspected.
---------------------------------------------------------------------------

    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:
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REQUEST FOR AND CERTIFICATION OF AMENITIES TO BE PROVIDED OR ARRANGED

    Date: ______
    Facility: ______
    Inspection number: ______
    Category of amenities requested:
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    Description of amenities requested:
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    Approval of the request by the inspected State Party:
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    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:
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ATTACHMENT 11

Agreed Procedures for Conducting Interviews

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ATTACHMENT 12

Agreed Procedures for Photography

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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.
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    \1\  Each State Party shall, in accordance with its 
constitutional processes, adopt the necessary measures to implement 
its obligations under this Convention.
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    3. The Parties have agreed to apply for planning purposes the 
general factors contained in Attachment 1.
    4. The frequency and intensity of inspections at the 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.
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    4. Requests from the inspection team for the inspected State 
Party during the inspection to provide equipment mentioned in 
paragraph 3 above shall be made in writing by an authorized member 
of the inspection team using the form contained in Attachment 5. The 
same procedure will also apply to other requests of the inspection 
team in accordance with paragraph 30 of Part II of the Verification 
Annex.
    5. Agreed procedures for the decontamination of any equipment 
are contained in Part C of Attachment 5.

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.
---------------------------------------------------------------------------

    \5\ The name of the authorized member(s) of the inspection team 
should be communicated to the inspected State Party no later than at 
the Point of Entry.
---------------------------------------------------------------------------

    3. The inspection team has the right to refuse extra amenities 
that in its view are not needed for the conduct of the inspection.

Section 10. Liabilities

    1. Any claim by the inspected State Party against the 
Organization or by the Organization against the inspected State 
Party in respect of any alleged damage or injury resulting from 
inspections at the plant site in accordance with this Agreement, 
without prejudice to paragraph 22 of the Confidentiality Annex, 
shall be settled in accordance with international law and, as 
appropriate, with the provisions of Article XIV of the Convention.

Section 11. Status of Attachments

    1. The Attachments form an integral part of this Agreement. Any 
reference to the Agreement includes the Attachments. However, in 
case of any inconsistency between this Agreement and any Attachment, 
the sections of the Agreement shall prevail.

Section 12. Amendments, Modifications and Updates

    1. Amendments to the sections of this Agreement may be proposed 
by either Party and shall be agreed to and enter into force under 
the same conditions as provided for under paragraph 1 of Section 14.
    2. Modifications to the Attachments of this Agreement, other 
than Attachment 1 and Part B of Attachment 5, may be agreed upon at 
any time between the representative of the Organization and the 
representative of the inspected State Party, each being specifically 
authorized to do so. The Director-General shall inform the Executive 
Council about any such modifications. Each Party to this Agreement 
may revoke its consent to a modification not later than four weeks 
after it had been agreed upon. After this time period the 
modification shall take effect.
    3. The inspected State Party will update Part A of Attachment 1 
and Part B of Attachment 5, and Attachment 6 as necessary for the 
effective conduct of inspections. The Organization will update Part 
B of Attachment 1 and Annex 5, subject to paragraph 2 of Section 8, 
as necessary for the effective conduct of inspections.

Section 13. Settlement of Disputes

    1. Any dispute between the Parties that may arise out of the 
application or interpretation of this Agreement shall be settled in 
accordance with Article XIV of the Convention.

Section 14. Entry into Force

    1. This Agreement shall enter into force after approval by the 
Executive Council and signature by the two Parties. If the inspected 
State Party has additional internal requirements, it shall so notify 
the Organization in writing by the date of signature. In such cases, 
this Agreement shall enter into force on the date that the inspected 
State Party gives the Organization written notification that its 
internal requirements for entry into force have been met.

Section 15. Duration and Termination

    1. This Agreement shall cease to be in force when the provisions 
of paragraph 12 of Part VII of the Verification Annex no longer 
apply to this plant site, except if the continuation of the 
Agreement is agreed by mutual consent of the Parties.
    Done at ______ in ______ copies, in English, each being equally 
authentic.6
---------------------------------------------------------------------------

    \6\ The language(s) to be chosen by the inspected State Party 
from the languages of the Convention shall be the same as the 
language(s) referred to in paragraph 6 of Section 1 of this 
Agreement.
---------------------------------------------------------------------------

ATTACHMENTS

    The following attachments shall be completed where applicable.

Attachment 1: General Factors for the Conduct of Inspections
Attachment 2: Health and Safety Requirements and Procedures
Attachment 3: Specific Arrangements in Relation to the Protection of 
Confidential Information at the Plant Site
Attachment 4: Arrangements for the Inspection Team's Contacts with 
the Media or the Public
Attachment 5: Inspection Equipment
Attachment 6: Information on the Plant Site Provided in Accordance 
with Section 6
Attachment 7: Arrangements for Site Tour
Attachment 8: Access to the Plant Site in Accordance with Section 
7.2

Attachment 9: Records Routinely Made Available to the Inspection 
Team at the Plant Site
Attachment 10: Sampling and Analysis for Verification Purposes
Attachment 11: Administrative Arrangements
Attachment 12: Agreed Procedures for Conducting Interviews
Attachment 13: Agreed Procedures for Photography

ATTACHMENT 1

General Factors for the Conduct of Inspections

Part A. To Be Provided and Updated by the inspected State Party

    1. Plant site:
    (a) working hours: 7 ____ hrs to ____ hrs (local 
time) (days)
---------------------------------------------------------------------------

    \7\ All references to time use a 24 hour clock.
---------------------------------------------------------------------------

  (b) working days:----------------------------------------------------
  (c) holidays or other non-working days:------------------------------
----------------------------------------------------------------------
    2. Schedule 2 plant(s):
    (a) working hours, if applicable: ____ hrs to ____ hrs (days)
  (b) working days:----------------------------------------------------
  (c) holidays or other non-working days:------------------------------
----------------------------------------------------------------------

[[Page 39232]]

    3. Inspection activities which could/could not 8 be 
supported during non-working hours with notation of times and 
activities:
---------------------------------------------------------------------------

    \8\ Choose one option.
---------------------------------------------------------------------------

    4. Any other factors that could adversely affect the effective 
conduct of inspections:
    (a) inspection requests:
    Should the plant site withhold consent to an inspection, the 
inspected State Party shall 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
---------------------------------------------------------------------------

    \9\ Any figure indicated is without prejudice to paragraph 29 of 
Part VII of the Verification Annex.
---------------------------------------------------------------------------

    (b) approximate inspection team size: ______
    (c) estimated volume and weight of equipment to be brought on-
site: ______

ATTACHMENT 2

Health and Safety Requirements and Procedures

Part A. Basic Principles

    1. Applicable health and safety regulations of the Organization, 
with agreed variations from strict implementation, if any:
----------------------------------------------------------------------
    2. Health and safety regulations applicable at the plant site:
    (a) federal regulations:
----------------------------------------------------------------------
    (b) state regulations:
----------------------------------------------------------------------
    (c) local regulations:
----------------------------------------------------------------------
    (d) plant site regulations:
----------------------------------------------------------------------
    3. Health and safety requirements and regulations agreed between 
the inspected State Party and the Organization:
----------------------------------------------------------------------

Part B. Detection and Monitoring

    1. Applicable specific safety standards for workplace chemical 
exposure limits and/or concentrations which should be observed 
during the inspection, if any:
----------------------------------------------------------------------
    2. Procedures, if any, for detection and monitoring in 
accordance with the Organization's Health and Safety Policy, 
including data to be collected by, or provided to, the inspection 
team:
----------------------------------------------------------------------

Part C. Protection

    1. Protective equipment to be provided by the Organization and 
agreed procedures for equipment certification and use, if required:
----------------------------------------------------------------------
    2. Protective equipment to be provided by the inspected State 
Party, and agreed procedures, personnel training, and personnel 
qualification tests and certification required; and agreed 
procedures for use of the equipment:
----------------------------------------------------------------------

Part D. Medical Requirements

    1. Applicable medical standards of the inspected State Party 
and, in particular, the inspected plant site:
----------------------------------------------------------------------
    2. Medical screening procedures for members of the inspection 
team:
----------------------------------------------------------------------
    3. Agreed medical assistance to be provided by the inspected 
State Party:
----------------------------------------------------------------------
    4. Emergency medical evacuation procedures:
----------------------------------------------------------------------
    5. Agreed additional medical measures to be taken by the 
inspection team:
----------------------------------------------------------------------
    6. Procedures for emergency response to chemical casualties of 
the inspection team:
----------------------------------------------------------------------

Part E. Modification of Inspection Activities

    1. Modification of inspection activities due to health and 
safety reasons, and agreed alternatives to accomplish the inspection 
goals:
----------------------------------------------------------------------

ATTACHMENT 3

Specific Arrangements in Relation to the Protection of Confidential 
Information at the Plant Site

Part A. Inspected State Party's Procedures for Designating and 
Classifying Documents Provided to the Inspection Team

    See Annex 3 for the Organization's Policy on Confidentiality and 
Annex 7 for the inspected State Party's Procedures for Information 
Control.

Part B. Specific Procedures for Access by the Inspection Team to 
Confidential Areas or Materials

----------------------------------------------------------------------

Part C. Procedures in Relation to the Certification by the Inspection 
Team of the Receipt of Any Documents Provided by the Inspected Plant 
Site

----------------------------------------------------------------------
----------------------------------------------------------------------

Part D. Storage of Confidential Documents at the Inspected Plant Site

    1. Procedures in relation to the storage of confidential 
documents or use of a dual control container on-site, if applicable:
    Information under restrictions provided for in the 
Confidentiality Annex and as such to be kept in the dual control 
container under joint seal shall be available to the inspection team 
leader and/or an inspector designated by him from the beginning of 
the pre-inspection briefing until the end of the debriefing upon 
completion of the inspection in accordance with Section 3. If copies 
of information under dual control are permitted to be attached to 
the preliminary factual findings by the inspected State Party, they 
shall be made by the inspected State Party and retained under dual 
control until the debriefing. Should the medium on which such 
information is recorded become unusable, it shall be replaced 
without delay by the representative of the inspected State Party.
  2. The dual control container will be placed-------------------------
    3. Information meeting the strict requirements for restriction 
pursuant to the Confidentiality Annex, and to be maintained in the 
dual control container located at the inspected plant site between 
inspections is listed below:

----------------------------------------------------------------------------------------------------------------
                                                                                                 Reasons for
      Reference             Type of data          Recorded media             Volume          restrictions/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