[Federal Register Volume 85, Number 231 (Tuesday, December 1, 2020)]
[Notices]
[Pages 77155-77157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26437]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[Docket No. 201118-0304]
RIN 0694-XC070


Impact of the Implementation of the Chemical Weapons Convention 
(CWC) on Legitimate Commercial Chemical, Biotechnology, and 
Pharmaceutical Activities Involving ``Schedule 1'' Chemicals (Including 
``Schedule 1'' Chemicals Produced as Intermediates) During Calendar 
Year 2020

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Notice of inquiry.

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SUMMARY: The Bureau of Industry and Security is seeking public comments 
on the impact that implementation of the Chemical Weapons Convention, 
through the Chemical Weapons Convention Implementation Act of 1998 and 
the Chemical Weapons Convention Regulations, has had on commercial 
activities involving ``Schedule 1'' chemicals during calendar year 
2020. The purpose of this notice of inquiry is to collect information 
to assist BIS in its preparation of the annual certification to the 
Congress on whether the legitimate commercial activities and interests 
of chemical, biotechnology, and pharmaceutical firms are harmed by such 
implementation. This certification is required under Condition 9 of 
Senate Resolution 75 (April 24, 1997), in which the Senate gave its 
advice and consent to the ratification of the CWC.

DATES: Comments must be received by December 31, 2020.

ADDRESSES: You may submit comments by any of the following methods 
(please refer to RIN 0694-XC070 in all comments and in the subject line 
of email comments):
     Federal rulemaking portal (http://www.regulations.gov). 
You can find this notice by searching under its regulations.gov docket 
number, which is BIS-2020-0039;
     Email: [email protected]. Include RIN 0694-XC070 
in the subject line of the message.
    All filers using the portal or email should use the name of the 
person or entity submitting the comments as the name of their files, in 
accordance with the instructions below. Parties submitting business 
confidential information should clearly identify the business 
confidential portion at the time of submission, file a statement 
justifying nondisclosure and referring to the specific legal authority 
claimed, and also provide a non-confidential submission.
    For comments submitted electronically containing business 
confidential information, the file name of the business confidential 
version should begin with the characters ``BC.'' Any page containing 
business confidential information must be clearly marked ``BUSINESS 
CONFIDENTIAL'' on the top of that page. The corresponding non-
confidential version of those comments must be clearly marked 
``PUBLIC.'' The file name of the non-confidential version should begin 
with the character ``P.'' The ``BC'' and ``P'' should be followed by 
the name of the person or entity submitting the comments or rebuttal 
comments. Any submissions with file names that do not begin with a 
``P'' or ``BC'' will be assumed to be public and will be made publicly 
available through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For questions on the Chemical Weapons 
Convention requirements for ``Schedule 1'' chemicals, contact Douglas 
Brown, Treaty Compliance Division, Office of Nonproliferation and 
Treaty Compliance, Bureau of Industry and Security, U.S. Department of 
Commerce, Email: [email protected]. 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, Email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    In providing its advice and consent to the ratification of 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''), the Senate included, in Senate Resolution 75 (S. Res. 
75, April 24, 1997), several conditions to its ratification. Condition 
9, titled ``Protection of Advanced Biotechnology,'' calls for the 
President to certify to Congress on an annual basis that ``the 
legitimate commercial activities and interests of chemical, 
biotechnology, and pharmaceutical

[[Page 77156]]

firms in the United States are not being significantly harmed by the 
limitations of the Convention on access to, and production of, those 
chemicals and toxins listed in Schedule 1.'' On July 8, 2004, President 
Bush, by Executive Order 13346, delegated his authority to make the 
annual certification to the Secretary of Commerce.
    The CWC is an international arms control treaty that contains 
certain verification provisions. In order to implement these 
verification provisions, the CWC established the Organization for the 
Prohibition of Chemical Weapons (OPCW). In order to achieve the object 
and purpose of the Convention and the implementation of its provisions, 
the CWC imposes certain obligations on countries that have ratified the 
Convention (i.e., States Parties), among which are the enactment of 
legislation to prohibit the production, storage, and use of chemical 
weapons and the establishment of a National Authority to serve as the 
national focal point for effective liaison with the OPCW and other 
States Parties. The CWC also requires each State Party to implement a 
comprehensive data declaration and inspection regime to provide 
transparency and to verify that both the public and private sectors of 
the State Party are not engaged in activities prohibited under the CWC. 
In the United States, the Chemical Weapons Convention Implementation 
Act of 1998, 22 U.S.C. 6701 et seq., implements the provisions of the 
CWC.
    ``Schedule 1'' chemicals consist of those toxic chemicals and 
precursors set forth in the CWC ``Annex on Chemicals'' and in 
``Supplement No. 1 to part 712--SCHEDULE 1 CHEMICALS'' of the Chemical 
Weapons Convention Regulations (CWCR) (15 CFR parts 710-722). The CWC 
identified these toxic chemicals and precursors as posing a high risk 
to the object and purpose of the Convention.
    The CWC (Part VI of the ``Verification Annex'') restricts the 
production of ``Schedule 1'' chemicals for protective purposes to two 
facilities per State Party: A single small-scale facility (SSSF) and a 
facility for production in quantities not exceeding 10 kg per year. The 
CWC Article-by-Article Analysis submitted to the Senate in Treaty Doc. 
103-21 defined the term ``protective purposes'' to mean ``used for 
determining the adequacy of defense equipment and measures.'' 
Consistent with this definition and as authorized by Presidential 
Decision Directive (PDD) 70 (December 17, 1999), which specifies agency 
and departmental responsibilities as part of the U.S. implementation of 
the CWC, the Department of Defense (DOD) was assigned the 
responsibility to operate these two facilities. DOD maintains strict 
controls on ``Schedule 1'' chemicals produced at its facilities in 
order to ensure accountability for such chemicals, as well as their 
proper use, consistent with the object and purpose of the Convention. 
Although this assignment of responsibility to DOD under PDD-70 
effectively precluded commercial production of ``Schedule 1'' chemicals 
for ``protective purposes'' in the United States, it did not establish 
any limitations on ``Schedule 1'' chemical activities that are not 
prohibited by the CWC.
    The provisions of the CWC that affect commercial activities 
involving ``Schedule 1'' chemicals are implemented in the CWCR (see 15 
CFR part 712) and in the Export Administration Regulations (EAR) (see 
15 CFR 742.18 and 15 CFR part 745), both of which are administered by 
the Bureau of Industry and Security (BIS). Pursuant to CWC 
requirements, the CWCR restrict commercial production of ``Schedule 1'' 
chemicals to research, medical, or pharmaceutical purposes. The CWCR 
prohibit commercial production of ``Schedule 1'' chemicals for 
``protective purposes'' because such production is effectively 
precluded per PDD-70, as described above. See 15 CFR 712.2(a).
    The CWCR also contain other requirements and prohibitions that 
apply to ``Schedule 1'' chemicals and/or ``Schedule 1'' facilities. 
Specifically, the CWCR:
    (1) Prohibit the import of ``Schedule 1'' chemicals from States not 
Party to the Convention (15 CFR 712.2(b));
    (2) Require annual declarations by certain facilities engaged in 
the production of ``Schedule 1'' chemicals in excess of 100 grams 
aggregate per calendar year (i.e., declared ``Schedule 1'' facilities) 
for purposes not prohibited by the Convention (15 CFR 712.5(a)(1) and 
(a)(2));
    (3) Provide for government approval of ``declared Schedule 1'' 
facilities (15 CFR 712.5(f));
    (4) Require 200 days advance notification of the establishment of 
new ``Schedule 1'' production facilities producing greater than 100 
grams aggregate of ``Schedule 1'' chemicals per calendar year (15 CFR 
712.4);
    (5) Provide that ``declared Schedule 1'' facilities are subject to 
initial and routine inspection by the OPCW (15 CFR 712.5(e) and 
716.1(b)(1));
    (6) Require advance notification and annual reporting of all 
imports and exports of ``Schedule 1'' chemicals to, or from, other 
States Parties to the Convention (15 CFR 712.6, 742.18(a)(1) and 
745.1); and
    (7) Prohibit the export of ``Schedule 1'' chemicals to States not 
Party to the Convention (15 CFR 742.18(a)(1) and (b)(1)(ii)).
    For purposes of the CWCR (see 15 CFR 710.1), ``production of a 
Schedule 1 chemical'' means the formation of ``Schedule 1'' chemicals 
through chemical synthesis, as well as processing to extract and 
isolate ``Schedule 1'' chemicals. The phrase ``production of a schedule 
1 chemical'' includes, in its meaning, the formation of a chemical 
through chemical reaction, including by a biochemical or biologically 
mediated reaction. ``Production of a Schedule 1 chemical'' is 
understood, for CWCR declaration purposes, to include intermediates, 
by-products, or waste products that are produced and consumed within a 
defined chemical manufacturing sequence, where such intermediates, by-
products, or waste products are chemically stable and therefore exist 
for a sufficient time to make isolation from the manufacturing stream 
possible, but where, under normal or design operating conditions, 
isolation does not occur.

Request for Comments

    In order to assist in determining whether the legitimate commercial 
activities and interests of chemical, biotechnology, and pharmaceutical 
firms in the United States are significantly harmed by the limitations 
of the Convention on access to, and production of, ``Schedule 1'' 
chemicals as described in this notice, BIS is seeking public comments 
on any effects that implementation of the CWC, through the Chemical 
Weapons Convention Implementation Act of 1998 and the CWCR, has had on 
commercial activities involving ``Schedule 1'' chemicals during 
calendar year 2020. To allow BIS to properly evaluate the significance 
of any harm to commercial activities involving ``Schedule 1'' 
chemicals, public comments submitted in response to this notice of 
inquiry should include both a quantitative and qualitative assessment 
of the impact of the CWC on such activities.

Submission of Comments

    All comments must be submitted to one of the addresses indicated in 
this notice and in accordance with the instructions provided herein. 
BIS will

[[Page 77157]]

consider all comments received on or before December 31, 2020.

Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2020-26437 Filed 11-30-20; 8:45 am]
BILLING CODE 3510-33-P