[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]
[Proposed Rules]
[Pages 41372-41373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17489]



[[Page 41371]]

Vol. 76

Wednesday,

No. 134

July 13, 2011

Part IV





Department of Commerce





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Bureau of Industry and Security





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15 CFR Part 714





Impact of Reducing the Mixture Concentration Threshold for Commercial 
Schedule 3 Chemical Activities Under the Chemical Weapons Convention 
Regulations; Proposed Rule

  Federal Register / Vol. 76 , No. 134 / Wednesday, July 13, 2011 / 
Proposed Rules  

[[Page 41372]]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 714

[Docket No. 100817371-0505-01]


Impact of Reducing the Mixture Concentration Threshold for 
Commercial Schedule 3 Chemical Activities Under the Chemical Weapons 
Convention Regulations

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Notice of inquiry.

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SUMMARY: The Bureau of Industry and Security (BIS) is seeking public 
comments on the impact of amending the Chemical Weapons Convention 
Regulations (CWCR) to reduce the concentration level at which the CWCR 
exempt certain mixtures containing Schedule 3 chemicals from the 
declaration requirements that apply to Schedule 3 chemical production 
and the reporting requirements that apply to exports and imports of 
Schedule 3 chemicals under the Chemical Weapons Convention (CWC).
    BIS is considering amending the CWCR declaration requirements that 
apply to the production of Schedule 3 chemicals to conform with the low 
concentration exemption adopted by the Organization for the Prohibition 
of Chemical Weapons (OPCW) in 2003, which applies when the 
concentration of any single Schedule 3 chemical in a mixture is ``30% 
or less,'' by weight or volume (whichever yields the lesser percent). 
Currently, the CWCR do not require the quantity of a Schedule 3 
chemical contained in a mixture to be counted for declaration or 
reporting purposes if the concentration of the Schedule 3 chemical in 
the mixture is ``less than 80%'' by volume or weight (whichever yields 
the lesser percent). The current low concentration level was 
implemented in accordance with requirements set forth in the Chemical 
Weapons Convention Implementation Act (CWCIA). Accordingly, publication 
and implementation of regulatory changes affecting this low 
concentration exemption level would be contingent upon amendment of the 
CWCIA by the Congress.
    In addition, consistent with U.S. national discretion, BIS is 
considering amending the CWCR reporting requirements for exports and 
imports of Schedule 3 chemicals by reducing the low concentration 
exemption that applies to certain mixtures containing Schedule 3 
chemicals from the current low concentration level of ``less than 80%'' 
of a Schedule 3 chemical by volume or weight (whichever yields the 
lesser percent) to a concentration of ``30% or less.''

DATES: Comments are due August 12, 2011.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: [email protected]. Include the phrase ``Schedule 
3 Notice of Inquiry'' in the subject line of the message.
     Fax: (202) 482-3355 (Attn: Willard Fisher). Please alert 
the Regulatory Policy Division, by calling (202) 482-2440, if you are 
faxing comments.
     Mail or Hand Delivery/Courier: Willard Fisher, U.S. 
Department of Commerce, Bureau of Industry and Security, Regulatory 
Policy Division, 14th Street & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230.

Send comments regarding the collection of information identified in 
this notice of inquiry, including suggestions for reducing the burden, 
to Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to 
[email protected], or by fax to (202) 395-7285; and to 
the Regulatory Policy Division, Bureau of Industry and Security, 
Department of Commerce, 14th Street & Pennsylvania Avenue, NW., Room 
2705, Washington, DC 20230. Comments on this collection of information 
should be submitted separately from comments on the notice of inquiry--
all comments on the latter should be submitted by one of the three 
methods outlined above.

FOR FURTHER INFORMATION CONTACT: For questions on the CWC requirements 
for Schedule 3 chemicals, contact Douglas Brown, Treaty Compliance 
Division, Office of Nonproliferation and Treaty Compliance, Bureau of 
Industry and Security, U.S. Department of Commerce, Phone: (202) 482-
2163. For questions on the submission of comments, contact Willard 
Fisher, Regulatory Policy Division, Office of Exporter Services, Bureau 
of Industry and Security, U.S. Department of Commerce, Phone: (202) 
482-2440.

SUPPLEMENTARY INFORMATION:

Background

    The Convention on the Prohibition of the Development, Production, 
Stockpiling, and Use of Chemical Weapons and Their Destruction, 
commonly called the Chemical Weapons Convention (CWC or ``the 
Convention''), is an international arms control and nonproliferation 
treaty that established the Organization for the Prohibition of 
Chemical Weapons (OPCW) to implement the verification provisions of the 
treaty. The CWC imposes a number of obligations on countries that have 
ratified the Convention (States Parties), including enactment of 
legislation to prohibit the production, storage, and use of chemical 
weapons, and establishment of a National Authority to liaison with the 
OPCW and other States Parties. The CWC also requires States Parties to 
implement a comprehensive data declaration and inspection regime to 
provide transparency and to verify that both the public and private 
sectors of States Parties are not engaged in activities prohibited 
under the CWC.
    Part VIII, paragraph 5 of the Verification Annex to the CWC 
(Schedule 3 Regime) provides that declarations ``are generally not 
required for mixtures containing a low concentration of a Schedule 3 
chemical'' and that the Conference of the States Parties to the 
Convention would consider and approve guidelines to establish the 
appropriate ``low concentration'' exemption level. Schedule 3 
chemicals, as set forth in the Convention's ``Annex on Chemicals,'' 
include those chemicals and precursors identified in the Convention as 
posing a risk to the object and purpose of the Convention, but less 
than the ``high'' or ``significant'' risk identified in the Convention 
with regard to Schedule 1 and Schedule 2 chemicals, respectively.
    The Department of Commerce, Bureau of Industry and Security (BIS) 
administers the Chemical Weapons Convention Regulations (CWCR) (15 CFR 
parts 710-722), which implement provisions of the Chemical Weapons 
Implementation Act of 1998 (CWCIA) (22 U.S.C. 6701 et seq.). At the 
time that the CWCIA was enacted, the OPCW had not yet established 
guidelines concerning low concentration limits for declarations of 
Schedule 3 chemicals. In section 402(a)(2) of the CWCIA (22 U.S.C. 
6742(a)(2)), Congress set 80% as the concentration of any Schedule 3 
chemical in a mixture, below which the CWC's declaration, reporting and 
inspection requirements do not apply. Consistent with the CWCIA, the 
CWCR do not require that the quantity of a Schedule 3 chemical 
contained in a mixture be counted for declaration or reporting purposes 
if the concentration of the Schedule 3 chemical in the mixture is 
``less than 80%'' by volume or weight, whichever yields the lesser 
percent.
    The declaration and reporting requirements in the CWC that affect 
commercial activities involving Schedule 3 chemicals are described in

[[Page 41373]]

part 714 of the CWCR. These CWCR provisions:
    (1) Require annual declarations by certain facilities (i.e., 
``declared'' Schedule 3 ``plant sites'') that were engaged in the 
production of a Schedule 3 chemical in excess of 30 metric tons during 
the previous calendar year, or which anticipate engaging in such 
production in the next calendar year (15 CFR 714.1(a)(1));
    (2) Require that the calculation of the quantity of any Schedule 3 
chemical that is produced must include the quantities produced in 
mixtures, if the concentration of the Schedule 3 chemical in the 
mixture is equal to or greater than 80% by volume or by weight, 
whichever yields the lesser percent (15 CFR 714.1(a)(3));
    (3) Define Schedule 3 chemical production to include all steps in 
the production of a Schedule 3 chemical in any units within the same 
plant through chemical reaction, including any associated processes 
(e.g., purification, separation, extraction, distillation, or refining) 
in which the chemical is not converted into another chemical (15 CFR 
714.1(a)(2));
    (4) Provide that all ``declared Schedule 3'' plant sites are 
subject to routine inspection by the OPCW (15 CFR 714.1(e)); and
    (5) Require persons, plant sites, and trading companies to submit 
annual reports of exports and imports of any Schedule 3 chemical to, or 
from, other destinations if the total quantity that was exported or 
imported exceeded 30 metric tons of a Schedule 3 chemical (15 CFR 
714.2(a)).
    During the OPCW's Fifth Session of the Conference of the States 
Parties to the Convention, which was held in The Hague, Netherlands, on 
May 19, 2000, the States Parties established guidelines concerning low 
concentration limits for declarations of Schedule 3 chemicals. 
Specifically, the States Parties agreed that the Convention's 
declaration and reporting requirements would not apply to a chemical 
mixture in which the concentration of any single Schedule 3 chemical is 
``30% or less'' by volume or weight, whichever yields the lesser 
percent. This agreement is documented in OPCW decision C-V/DEC.19 and 
can be obtained from the OPCW Web site (www.opcw.org). Accordingly, if 
U.S. requirements are to mirror the low concentration exemption level 
adopted by the OPCW after the enactment of the CWCIA, both statutory 
and regulatory changes must be implemented.

Discussion and Request for Comments

    BIS is seeking public comments on the potential effects of amending 
the CWCR declaration requirements that apply to the production of 
Schedule 3 chemicals by reducing the exemption for mixtures containing 
low concentrations of Schedule 3 chemicals from the current level of 
``less than 80%'' by volume or weight (whichever yields the lesser 
percent) to a concentration of ``30% or less'' by volume or weight 
(whichever yields the lesser percent). These comments will assist BIS 
in assessing the impact of this change on U.S. persons involved in the 
production of Schedule 3 chemicals.
    Additionally, BIS is seeking public comments on the potential 
effects of amending the CWCR reporting requirements that apply to 
certain exports and imports of Schedule 3 chemicals by reducing the 
exemption for mixtures containing low concentrations of Schedule 3 
chemicals from the current level of ``less than 80%'' by volume or 
weight (whichever yields the lesser percent) to a concentration of 
``30% or less'' by volume or weight (whichever yields the lesser 
percent).
    In particular, BIS seeks comments on the potential impact of these 
changes on costs, operations, and trade.
    Furthermore, BIS is seeking public comments on the anticipated 
impact of these changes with respect to an existing collection of 
information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.) (PRA). Notwithstanding any other provision of law, no 
person is required to respond to, nor shall any person be subject to a 
penalty for failure to comply with, a collection of information subject 
to the PRA, unless that collection of information displays a currently 
valid Office of Management and Budget (OMB) Control Number. The changes 
that are being considered by BIS would revise an existing collection of 
information subject to the requirements of the PRA. This collection has 
been approved by OMB under Control Number 0694-0091 (Chemical Weapons 
Convention--Declaration and Report Forms), which carries burden hour 
estimates of 10.6 hours for Schedule 1 Chemicals, 11.9 hours for 
Schedule 2 chemicals, 2.5 hours for Schedule 3 chemicals, 5.3/5.1/5.1 
hours for unscheduled discrete organic chemicals (includes Annual 
Declaration on Past Activities, No Changes Authorization Form, and 
Change in Inspection Status Form, respectively), and 0.17 hours for 
Schedule 1 notifications.
    Specifically, these changes would affect this approved information 
collection with respect to information collection activities (e.g., 
declarations, reports, recordkeeping) involving CWC Schedule 3 
chemicals that are subject to declaration and/or reporting requirements 
under the CWCR. In this regard, BIS is seeking comments that address 
the anticipated impact of the changes being considered by BIS on the 
burden hours and costs associated with Schedule 3 chemical activities 
under this approved information collection.
    Send comments regarding this collection of information, including 
suggestions for reducing the burden, to Jasmeet Seehra, Office of 
Management and Budget (OMB), and to the Regulatory Policy Division, 
Bureau of Industry and Security, Department of Commerce, as indicated 
in the ADDRESSES section of this notice.

Submission of Comments

    All comments must be submitted to the address indicated in this 
notice. The Department requires that all comments be submitted in 
written form.
    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 on August 12, 2011. The Department will consider 
all comments received before the close of the comment period. 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 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 persons submitting the comments and 
will not consider them. All comments submitted in response to this 
notice will be a matter of public record and will be available for 
public inspection and copying.
    The Office of Administration, Bureau of Industry and Security, U.S. 
Department of Commerce, displays public comments on the BIS Freedom of 
Information Act (FOIA) Web site at http://www.bis.doc.gov/foia. This 
office does not maintain a separate public inspection facility. If you 
have technical difficulties accessing this Web site, please call BIS's 
Office of Administration, at (202) 482-2165, for assistance.

    Dated: July 1, 2011.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2011-17489 Filed 7-12-11; 8:45 am]
BILLING CODE 3510-33-P