[Federal Register Volume 86, Number 4 (Thursday, January 7, 2021)]
[Rules and Regulations]
[Pages 936-944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27759]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 710, 712, and 745
[Docket No. 201211-0336]
RIN 0694-AH94
Chemical Weapons Convention Regulations and the Export
Administration Regulations: Additions to Schedule 1(A) of the Annex on
Chemicals to the Chemical Weapons Convention
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: The Bureau of Industry and Security (BIS) is publishing this
final rule to amend the Chemical Weapons Convention Regulations (CWCR)
and the Export Administration Regulations (EAR) to reflect recent
additions to Schedule 1(A) of the Annex on Chemicals to 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). This final rule also amends the
definition of ``production'' in the CWCR to clarify the scope of this
term as it applies to declarations regarding the production of
``Schedule 1,'' ``Schedule 2,'' or ``Schedule 3'' chemicals.
[[Page 937]]
DATES: This rule is effective January 7, 2021.
FOR FURTHER INFORMATION CONTACT: For questions on the CWCR requirements
for ``Schedule 1'' chemicals, contact Erica Sunyog, Treaty Compliance
Division, Office of Nonproliferation and Treaty Compliance, Bureau of
Industry and Security, U.S. Department of Commerce, Phone: (202) 482-
6237.
SUPPLEMENTARY INFORMATION:
Background
The Chemical Weapons Convention (hereinafter, ``CWC'' or
``Convention''), which entered into force on April 29, 1997, is an
international arms control treaty whose object and purpose is to
eliminate an entire category of weapons of mass destruction by
prohibiting the development, production, acquisition, stockpiling,
retention, transfer or use of chemical weapons by States Parties. The
CWC States Parties have agreed to destroy any stockpiles of chemical
weapons they may hold and any facilities that produced them, as well as
any chemical weapons they have abandoned on the territory of other
States Parties. The CWC States Parties also have agreed to implement a
comprehensive data declaration, notification, and inspection regime for
those toxic chemicals and their precursors listed in Schedule 1, 2 or 3
in the CWC Annex on Chemicals to provide transparency and to verify
that their public and private sectors are not engaged in activities
prohibited under the CWC.
In addition, each State Party has agreed to adopt domestic
legislation to implement its obligations under the Convention and to
designate or establish a National Authority to serve as the national
focal point for effective liaison with the Organization for the
Prohibition of Chemical Weapons (OPCW) and other States Parties. The
designated U.S. National Authority is the Bureau of Arms Control,
Verification and Compliance, U.S. Department of State. The OPCW was
established by the States Parties to achieve the object and purpose of
the Convention, to ensure the implementation of its provisions
(including those pertaining to international verification of
compliance), and to provide a forum for consultation and cooperation
among the States Parties. All CWC States Parties are members of the
OPCW, which includes the Conference of the States Parties, the
Executive Council, and the Technical Secretariat.
The provisions of the CWC that affect commercial activities
involving scheduled chemicals (including ``Schedule 1'' chemicals) are
implemented, pursuant to the Chemical Weapons Convention Implementation
Act of 1998 (CWCIA) (22 U.S.C. 6701 et seq.) and Executive Order 13128
(64 FR 34703, June 28, 1999), by the Chemical Weapons Convention
Regulations (CWCR) (see 15 CFR parts 710-722) and 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). Specifically, BIS maintains the list of ``Schedule 1''
chemicals identified in the CWC Annex on Chemicals in Supplement No. 1
to part 712 of the CWCR and as part of Supplement No. 1 to part 745 of
the EAR. BIS also administers the CWC ``Schedule 1'' chemical
declaration, reporting, notification, and verification requirements
that are described in part 712 of the CWCR. In addition, Sec. 745.1 of
the EAR describes the advance notification and annual report
requirements that apply to exports of ``Schedule 1'' chemicals.
The CWC identifies the toxic chemicals and immediate precursors
listed under ``Schedule 1'' in the CWC Annex on Chemicals as posing a
high risk to the object and purpose of the Convention. Consistent with
Part VI of the CWC Verification Annex, the CWCR restrict commercial
production of ``Schedule 1'' chemicals to research, medical, or
pharmaceutical purposes only. See 15 CFR 710.1, at definition of
Purposes not prohibited by the CWC, and 15 CFR 710.2(b), Activities
subject to the CWCR. The CWCR prohibit commercial production of
``Schedule 1'' chemicals for ``protective purposes'' (see 15 CFR
712.2(a)) consistent with Presidential Decision Directive (PDD) 70
(December 17, 1999), which effectively limits production for such
purposes to facilities operated by the Department of Defense. These
CWCR restrictions and prohibitions apply to all persons and facilities
located in the United States, except certain U.S. Government
facilities--see 15 CFR 710.2(a). In addition to these general
requirements and prohibitions pertaining to ``Schedule 1'' chemicals,
the CWCR:
(1) Prohibit the import of ``Schedule 1'' chemicals from States not
Party to the CWC (15 CFR 712.2(b));
(2) Require annual declarations by 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 CWC (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) 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));
(5) Require 200 days advance notification of establishment of new
``Schedule 1'' production facilities producing greater than 100 grams
aggregate of ``Schedule 1'' chemicals per calendar year (15 CFR 712.4);
(6) Require advance notification and annual reporting to the
Technical Secretariat of the OPCW of all imports and exports of
``Schedule 1'' chemicals to, or from, other States Parties to the CWC
(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 CWC (15 CFR 742.18(a)(1) and (b)(1)(ii)).
This final rule amends part 712 of the CWCR and part 745 of the EAR
to reflect recent additions to Schedule 1(A) of the CWC Annex on
Chemicals, as described below. In addition, this rule amends the
definition of ``production'' in part 710 of the CWCR to clarify the
scope of this term as it applies to declarations regarding the
production of ``Schedule 1,'' ``Schedule 2,'' or ``Schedule 3''
chemicals.
This rule amends part 712 of the CWCR and part 745 of the EAR to
add three ``Schedule 1'' chemical families and one individual
``Schedule 1'' chemical to both sets of regulations, consistent with
two decisions adopted by the States Parties to the CWC during the
OPCW's 24th Conference of the States Parties, held in The Hague, the
Netherlands, from November 25-29, 2019. Based on two separate proposals
submitted to the Director-General of the OPCW, one by the United
States, Canada and the Netherlands, and the other by the Russian
Federation, these decisions added three chemical families and one
individual chemical to ``Schedule 1'' in the CWC Annex on Chemicals.
The OPCW agreements are documented in OPCW Decisions C-24/DEC.4 and C-
24/DEC.5 and may be obtained from the OPCW website (http://www.opcw.org). On December 10, 2019, the Director-General notified all
States Parties and the Depositary of the CWC (i.e., the Secretary-
General of the United Nations) of the adoption of these decisions by
the Conference of the States Parties. Pursuant to subparagraph 5(g) of
Article XV of the CWC, these changes to the Annex on Chemicals entered
into force for all States Parties 180 days after the date of this
notification, that is, on June 7, 2020.
The additions to ``Schedule 1'' of the CWC Annex on Chemicals are
as follows:
[[Page 938]]
Schedule 1
A. Toxic chemicals:
(1) [Rcy]-alkyl (H or <=C10, incl. cycloalkyl) N-(1-
(dialkyl(<=C10, incl. cycloalkyl)amino))alkylidene(H or
<=C10, incl. cycloalkyl) phosphonamidic fluorides and
corresponding alkylated or protonated salts
e.g. N-(1-(di-n-decylamino)-n-decylidene)-P-decylphosphonamidic
fluoride (CAS No. 2387495-99-8)
Methyl-(1-(diethylamino)ethylidene)phosphonamidofluoridate (CAS No.
2387496-12-8)
(2) O-alkyl (H or <=C10, incl. cycloalkyl) N-(1-
(dialkyl(<=C10, incl. cycloalkyl)amino))alkylidene(H or
<=C10, incl. cycloalkyl) phosphoramidofluoridates and
corresponding alkylated or protonated salts
e.g. O-n-Decyl N-(1-(di-n-decylamino)-n-
decylidene)phosphoramidofluoridate (CAS No. 2387496-00-4)
Methyl (1-(diethylamino)ethylidene)phosphoramidofluoridate (CAS No.
2387496-04-8)
Ethyl (1-(diethylamino)ethylidene)phosphoramidofluoridate (CAS No.
2387496-06-0)
(3) Methyl-(bis(diethylamino)methylene)phosphonamidofluoridate (CAS
No. 2387496-14-0)
(4) Carbamates (quaternaries and bisquaternaries of
dimethylcarbamoyloxypyridines) Quaternaries of
dimethylcarbamoyloxypyridines:
1-[N,N-dialkyl(<=C10)-N-(n-(hydroxyl, cyano,
acetoxy)alkyl(<=C10)) ammonio]-n-[N-(3-dimethylcarbamoxy-
[alpha]-picolinyl)-N,N-dialkyl(<=C10) ammonio]decane
dibromide (n=1-8)
e.g. 1-[N,N-dimethyl-N-(2-hydroxy)ethylammonio]-10-[N-(3-
dimethylcarbamoxy-[alpha]-picolinyl)-N,N-dimethylammonio]decane
dibromide (CAS No. 77104-62-2)
Bisquaternaries of dimethylcarbamoyloxypyridines:
1,n-Bis[N-(3-dimethylcarbamoxy-[alpha]-picolyl)-N,N-
dialkyl(<=C10) ammonio]-alkane-(2,(n-1)-dione) dibromide
(n=2-12)
e.g. 1,10-Bis[N-(3-dimethylcarbamoxy-[alpha]-picolyl)-N-ethyl-N-
methylammonio]decane-2,9-dione dibromide (CAS No. 77104-00-8).
Notice of Inquiry on the Impact of Proposed Additions to CWC ``Schedule
1''
Pursuant to Condition 23 to Senate Resolution 75 (S. Res. 75, April
24, 1997), and as delegated from the President, the Secretary of State,
in coordination with other U.S. Government departments and agencies,
including the Department of Commerce, must submit a report to the
Senate Committee on Foreign Relations detailing, inter alia, the likely
impact on United States industry of the proposed addition of a chemical
or biological substance to a schedule in the CWC Annex on Chemicals.
Consistent with Condition 23, on August 14, 2019, BIS published a
notice of inquiry (84 FR 40389) that requested public comments as to
whether the legitimate commercial activities and interests of chemical,
biotechnology, and pharmaceutical firms in the United States would be
significantly harmed by the limitations that would be imposed on access
to, and production of, the compounds included in certain chemical
families that had been proposed for addition to ``Schedule 1'' in the
CWC Annex on Chemicals.
BIS did not receive any public comments in response to this notice
of inquiry. Of the chemical families at issue, three families of
chemicals and one individual chemical from a fourth family, as
described above, were added to ``Schedule 1'' by the decisions adopted
at the Conference of the States Parties in November 2019. These
additions to ``Schedule 1'' are reflected in the amendments to the CWCR
and the EAR described below.
Amendments to Supplement No. 1 to Part 712 of the CWCR (Schedule 1
Chemicals)
Supplement No. 1 to part 712 of the CWCR identifies ``Schedule 1''
chemicals listed in the CWC Annex on Chemicals. This rule amends
Supplement No. 1 to: (1) Include the three chemical families and one
individual chemical that were added to ``Schedule 1;'' and (2) add a
Note 3 following the list of chemicals to explain that the numerical
sequence of the ``Schedule 1'' Toxic Chemicals and Precursors specified
therein is not consecutive so as to align with the December 23, 2019,
consolidated textual changes to the Annex on Chemicals, which reflect
the decisions adopted by the CWC Conference of the States Parties in
November 2019. Specifically, the chemicals listed in ``Schedule 1(A),''
Toxic Chemicals, are numbered 1-8 and 13-16 (the latter includes 16.1
and 16.2), while the chemicals listed in ``Schedule 1(B),'' Precursors,
are numbered 9-12.
This rule does not amend any of the declaration, advance
notification, reporting or verification requirements in part 712 of the
CWCR that apply to ``Schedule 1'' chemicals or facilities involved in
the production of such chemicals. Although the newly added ``Schedule
1'' chemicals are now subject to these requirements, BIS estimates that
the amendments made by this rule will not significantly affect the
public burden imposed by these requirements because very few (if any)
commercial facilities in the United States produce these chemicals.
Consistent with this estimate, BIS did not receive any responses to its
August 2019 notice of inquiry requesting public comments on the impact
on U.S. industry of the proposed addition of the families of chemicals
at issue to ``Schedule 1'' of the CWC Annex on Chemicals. As further
evidence of the limited scope of any potential commercial applications,
these chemicals are defense articles subject to the export licensing
jurisdiction of the U.S. Department of State (as described below).
Amendments to Supplement No. 1 to Part 745 of the EAR (Schedules of
Chemicals)
Supplement No. 1 to part 745 of the EAR includes the three
schedules of Chemicals (Schedules 1, 2 and 3) contained in the CWC
Annex on Chemicals. This rule amends ``Schedule 1'' in Supplement No. 1
to reflect the decisions adopted at the November 2019 CWC Conference of
the States Parties to add three chemical families and one individual
chemical to ``Schedule 1'' in the CWC Annex on Chemicals. In addition,
this rule revises the formats of ``Schedule 2 and ``Schedule 3'' for
consistency with the format of ``Schedule 1,'' as amended by this rule.
This rule also adds a Note following the list of chemicals in
Supplement No. 1 to explain that the numerical sequence of the
``Schedule 1'' Toxic Chemicals and Precursors specified therein is not
consecutive so as to align with the December 23, 2019, consolidated
textual changes to the Annex on Chemicals, which reflect the decisions
adopted by the CWC Conference of the States Parties in November 2019.
Specifically, the chemicals listed in ``Schedule 1(A),'' Toxic
Chemicals, are numbered 1-8 and 13-16 (the latter includes 16.1 and
16.2), while the chemicals listed in ``Schedule 1(B),'' Precursors, are
numbered 9-12.
This rule does not amend the advance notification and reporting
requirements for exports of ``Schedule 1'' chemicals described in Sec.
745.1 of the EAR, which are, for all practical purposes, a cross-
reference to (or general restatement of) the requirements in Sec.
712.6 of the CWCR (except that the CWCR requirements
[[Page 939]]
also apply to imports of ``Schedule 1'' chemicals). Furthermore, these
newly added ``Schedule 1'' chemicals are not subject to the export
licensing jurisdiction of BIS under the EAR. All ``Schedule 1''
chemicals, except ricin and saxitoxin (which are controlled under
Export Control Classification Number 1C351 on the Commerce Control List
in Supplement No. 1 to part 774 of the EAR), are subject to the export
licensing jurisdiction of the Directorate of Defense Trade Controls,
Department of State, under the International Traffic in Arms
Regulations (ITAR) (22 CFR parts 120-130). Consequently, the conforming
amendments made by this rule will not affect the burden imposed on the
public by the ``Schedule 1'' chemical advance notification and
reporting requirements described in Sec. 745.1 of the EAR.
Clarification of the Definition of ``Production'' in Part 710 of the
CWCR
This final rule amends the definition of ``production'' in Sec.
710.1 of the CWCR to clarify its application to the CWCR's declaration
requirements concerning the production of ``Schedule 1,'' ``Schedule
2,'' or ``Schedule 3'' chemicals. Specifically, this rule clarifies the
definition consistent with Sec. Sec. 712.5(d), 713.2(a)(2)(ii) and
714.1(a)(2)(ii) of the CWCR (as amended by the April 27, 2006, CWCR
final rule (81 FR 24918)), whereby ``Schedule 1,'' ``Schedule 2,'' or
``Schedule 3'' chemicals that are intermediates, but not transient
intermediates, must be considered when determining if a chemical is
subject to the declaration requirements in the CWCR. (See the OPCW
Conference of the States Parties Decisions that form the basis of this
treatment of such intermediates: C-10/DEC.12, November 10, 2005,
``Understanding Relating to the Concept of `Captive Use' in Connection
with Declarations of Production and Consumption Under Part VI of the
Verification Annex to the Convention;'' and C-9/DEC.6, November 30,
2004, ``Understanding of the Concept of `Captive Use' in Connection
with Declarations of Production and Consumption Under Parts VII and
VIII of the Verification Annex to the Chemical Weapons Convention.'')
As amended by this rule, the definition of ``production'' in Sec.
710.1 of the CWCR is understood (for purposes of the ``Schedule 1,''
``Schedule 2,'' and ``Schedule 3'' chemical declaration requirements in
the CWCR) 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.
Rulemaking Requirements
1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including: Potential economic, environmental, public
health and safety effects; distributive impacts; and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits and of reducing costs, harmonizing rules, and promoting
flexibility. This final rule has been determined to be not significant
for purposes of Executive Order 12866. This rule is not an Executive
Order 13771 regulatory action because this rule is not significant
under Executive Order 12866.
2. 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
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) (PRA), unless that collection of information displays a currently
valid Office of Management and Budget (OMB) Control Number. This rule
contains the following collections of information subject to the
requirements of the PRA. These collections have been approved by OMB
under control numbers 0694-0091 (Chemical Weapons Convention
Declaration and Report Handbook and Forms & Chemical Weapons Convention
Regulations (CWCR)) and 0694-0117 (Chemical Weapons Convention
Provisions of the Export Administration Regulations (EAR)). The
approved information collection under OMB control number 0694-0091
includes CWCR declarations, reports, notifications, and on-site
inspections of chemical facilities and carries a total burden estimate
of 14,813 hours. The approved information collection under OMB control
number 0694-0117 includes Schedule 1 chemical advance notifications and
annual reports, Schedule 3 chemical End-Use Certificates, and exports
of ``technology'' to produce certain Schedule 2 and Schedule 3
chemicals and carries a total burden estimate of 42 burden hours.
BIS estimates that the overall increase in costs and burdens due to
the implementation of the changes made by this final rule will be
minimal, based on the fact that there are very few, if any, commercial
applications for the ``Schedule 1'' chemicals added by this rule to
Supplement No. 1 to part 712 of the CWCR and Supplement No. 1 to part
745 of the EAR. Consistent with this estimate, BIS did not receive any
responses to its August 2019 notice of inquiry described herein.
Additional evidence of the limited scope of potential commercial
applications is that the chemicals at issue are defense articles
subject to the export licensing jurisdiction of the Department of
State. Also, pursuant to Sec. 710.2(a) of the CWCR, certain U.S.
Government facilities (e.g., Department of Defense and Department of
Energy facilities) are not subject to the CWCR and, consequently, the
costs and burdens of the requirements described therein do not apply to
such facilities.
In addition, although the newly added ``Schedule 1'' chemicals are
subject to the declaration, advance notification, reporting or
verification requirements in part 712 of the CWCR, the fact that these
chemicals have few potential commercial applications will, as a
practical matter, limit the impact of these requirements. Consequently,
the amendments made by this rule will not significantly alter the costs
and burdens imposed on the public by such CWCR requirements.
Furthermore, because these newly added ``Schedule 1'' chemicals are
defense articles subject to the export licensing jurisdiction of the
Department of State under the ITAR, the conforming amendments made by
this rule do not add to, or otherwise affect, any export licensing
requirements in the EAR; nor, as a practical matter, will they
significantly alter the costs and burdens imposed on the public by the
reporting and advance notification requirements described in Sec.
745.1 of the EAR.
Written comments and recommendations for the information
collections referenced above should be sent within 30 days of the
publication of this final rule to: www.reginfo.gov/public/do/PRAMain.
The public may locate these particular information collections by
selecting ``Currently under 30-day Review--Open for Public Comments''
or by using the search function.
3. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed
[[Page 940]]
rulemaking, the opportunity for public participation, and a delay in
effective date, are inapplicable because this regulation involves a
military and foreign affairs function of the United States (see 5
U.S.C. 553(a)(1)). Immediate implementation of these amendments is non-
discretionary and fulfills the United States' international obligations
under the CWC. The CWC is an international arms control treaty
prohibiting the development, production, acquisition, stockpiling,
retention, transfer or use of chemical weapons by States Parties in
order to eliminate an entire category of weapons of mass destruction.
The 193 CWC States Parties have agreed to, among other things,
implement a comprehensive data declaration, notification, and
inspection regime for those toxic chemicals and their precursors listed
in Schedules 1, 2 or 3 in the CWC Annex on Chemicals (the Annex). The
amendments set forth in this rule implement two decisions adopted by
the States Parties during the OPCW's 24th Conference of the States
Parties, held in The Hague, the Netherlands, from November 25-29, 2019,
and clarify a definition in the CWCR to ensure consistency with the
CWCR's declaration requirements regarding the production of ``Schedule
1,'' ``Schedule 2,'' or ``Schedule 3'' chemicals.
These provisions of the Administrative Procedure Act also are
waived for good cause, as unnecessary and contrary to the public
interest (see 5 U.S.C. 553(b)(B)). This rule brings the CWCR and the
EAR into conformity with recent updates to ``Schedule 1'' in the Annex
by amending Supplement No. 1 to part 712 of the CWCR and Supplement No.
1 to part 745 of the EAR. These changes to the Annex entered into
force, with respect to all States Parties to the CWC, on June 7, 2020.
As a State Party, the United States became obligated to apply the
declaration, advance notification, reporting and verification
requirements in part 712 of the CWCR to these newly added ``Schedule
1'' chemicals as of that date.
Because these obligations will have already come into effect by the
time this rule is published, a delay of this rulemaking to allow for
notice and opportunity for public comment would be unnecessary. As
indicated above, the U.S. has no discretion in this matter--it must
implement these changes as a State Party.
Even if these changes were discretionary, a delay of this
rulemaking to allow for notice and opportunity for public comment would
be unnecessary. Based on the lack of any responses to BIS's August 14,
2019, notice of inquiry requesting public comments on the impact of the
addition of these chemicals (together with others) to the Annex, it
does not appear that there any many (if any) chemical, biotechnology,
or pharmaceutical firms in the U.S. that would be adversely affected by
the substance of this rule. Moreover, these chemicals are defense
articles subject to the export licensing jurisdiction of the Department
of State under the ITAR and, consequently, have few potential
commercial applications.
Similarly, a delay of this rulemaking to provide notice and
opportunity for public comment would be contrary to the public
interest, as would a 30-day delay in effective date, given the fact
that the restrictions associated with the addition of these chemicals
to the Annex have already come into force for CWC States Parties as of
June 7, 2020. Providing notice and opportunity for public comment and a
30-day delay in effectiveness would not only impair the ability of the
United States to fulfill its obligations as a State Party in a timely
manner, it also might lead the public to mistakenly assume that these
changes are discretionary. Such measures might also have a significant
adverse impact upon the ability of U.S. companies to comply in a timely
fashion with the declaration, advance notification, reporting, and
other requirements that apply to these newly added ``Schedule 1''
chemicals, as they would have to wait until the amendments adding these
chemicals to the CWCR and the EAR have taken effect. Consequently, any
further delay in implementation would adversely impact the ability of
the United States to meet its ``Schedule 1'' chemical declaration,
notification, and reporting obligations to the OPCW with respect to
these newly added ``Schedule 1'' chemicals. Conversely, timely
publication of these regulatory changes, with immediate effectiveness,
would provide U.S. companies with adequate time to adjust their
recordkeeping and other activities in advance of any deadlines that
would apply to the submission of declarations, advance notifications,
or reports associated with the newly added ``Schedule 1'' chemicals,
thereby making it possible for the U.S. to meet its CWC obligations in
this regard.
For similar reasons, application of the APA's notice and comment
and 30-day delay in effectiveness requirements to the clarification to
the definition of ``production'' set forth in Sec. 710.1 of the CWCIA
made as part of this rule would be unnecessary and contrary to the
public interest. The clarification merely conforms the definition to
language already set forth in the CWCIA's declaration requirements that
apply to ``Schedule 1,'' ``Schedule 2,'' and ``Schedule 3'' chemicals.
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule by the APA or
any other law, the analytical requirements of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly,
no regulatory flexibility analysis is required, and none has been
prepared.
List of Subjects
15 CFR Part 710
Chemicals, Exports, Foreign trade, Imports, Treaties.
15 CFR Part 712
Chemicals, Exports, Foreign trade, Imports, Reporting and
recordkeeping requirements.
15 CFR Part 745
Administrative practice and procedure, Chemicals, Exports, Foreign
trade, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, parts 710 and 712 of the
Chemical Weapons Convention Regulations (15 CFR parts 710-722) and part
745 of the Export Administration Regulations (15 CFR parts 730-774) are
amended as follows:
PART 710--GENERAL INFORMATION AND OVERVIEW OF THE CHEMICAL WEAPONS
CONVENTION REGULATIONS (CWCR)
0
1. The authority citation for 15 CFR part 710 continues to read as
follows:
Authority: 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3
CFR 1999 Comp., p. 199.
0
2. In Sec. 710.1, the definition of ``Production'' is revised to read
as follows:
Sec. 710.1 Definitions of terms used in the Chemical Weapons
Convention Regulations (CWCR).
* * * * *
Production. Means the formation of a chemical through chemical
reaction, including biochemical or biologically mediated reaction (see
supplement no. 2 to this part).
(1) Production of Schedule 1 chemicals means formation through
chemical synthesis as well as processing to extract and isolate
Schedule 1 chemicals.
(2) Production of a Schedule 2 or Schedule 3 chemical means all
steps in
[[Page 941]]
the production of a 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. The exact
nature of any associated process (e.g., purification, etc.) is not
required to be declared.
(3) Production of a Schedule 1, Schedule 2 or Schedule 3 chemical
is understood, for 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.
* * * * *
PART 712--ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS
0
3. The authority citation for 15 CFR part 712 continues to read as
follows:
Authority: 22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p.
200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.
0
4. Supplement No. 1 to part 712 is amended by revising the table and
adding a Note 3 to the Notes to Supplement No. 1 to read as follows:
Supplement No. 1 to Part 712--Schedule 1 Chemicals
------------------------------------------------------------------------
CAS registry
No.
------------------------------------------------------------------------
A. Toxic Chemicals:
1. Family: O-Alkyl(<=C10, incl. cycloalkyl) alkyl
(Me, Et, n-Pr or i-Pr)- phosphonofluoridates
Not limited to the following examples:
Sarin: O-Isopropyl methylphosphonofluoridate 107-44-8
Soman: O-Pinacolyl methylphosphonofluoridate 96-64-0
2. Family: O-Alkyl (<=C10, incl. cycloalkyl) N,N-
dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidocyanidates
Not limited to the following example:
Tabun: O-Ethyl N,N-dimethyl 77-81-6
phosphoramidocyanidate
3. Family: 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
Not limited to the following example:
VX: O-Ethyl S-2-diisopropylaminoethyl methyl 50782-69-9
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-chloroethylthio)ethane. 3563-36-8
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
13. Family: [Rcy]-alkyl (H or <=C10, incl.
cycloalkyl) N-(1-(dialkyl(<=C10, incl.
cycloalkyl)amino))alkylidene(H or <=C10, incl.
cycloalkyl) phosphonamidic fluorides and
corresponding alkylated or protonated salts
Not limited to the following examples:
N-(1-(di-n-decylamino)-n-decylidene)-P- 2387495-99-8
decylphosphonamidic fluoride...............
Methyl-(1- 2387496-12-8
(diethylamino)ethylidene)phosphonamidofluor
idate......................................
14. Family: O-alkyl (H or <=C10, incl. cycloalkyl) N-
(1-(dialkyl(<=C10, incl.
cycloalkyl)amino))alkylidene(H or <=C10, incl.
cycloalkyl) phosphoramidofluoridates and
corresponding alkylated or protonated salts
Not limited to the following examples:
O-n-Decyl N-(1-(di-n-decylamino)-n 2387496-00-4
decylidene)phosphoramidofluoridate.........
Methyl (1- 2387496-04-8
(diethylamino)ethylidene)phosphoramidofluor
idate......................................
Ethyl (1- 2387496-06-0
(diethylamino)ethylidene)phosphoramidofluor
idate......................................
15. Methyl- 2387496-14-0
(bis(diethylamino)methylene)phosphonamidofluoridate
16. Carbamates (quaternaries and bisquaternaries of
dimethylcarbamoyloxypyridines)
16.1. Family: Quaternaries of
dimethylcarbamoyloxypyridines: 1-[N,N-
dialkyl(<=C10)-N-(n-(hydroxyl, cyano,
acetoxy)alkyl(<=C10)) ammonio]-n-[N-(3-
dimethylcarbamoxy-[alpha]-picolinyl)-N,N-
dialkyl(<=C10) ammonio]decane dibromide (n=1-8)
Not limited to the following example:
1-[N,N-dimethyl-N-(2-hydroxy)ethylammonio]- 77104-62-2
10-[N-(3-dimethylcarbamoxy-[alpha]-
picolinyl)-N,N-dimethylammonio]decane
dibromide..................................
16.2. Family: Bisquaternaries of
dimethylcarbamoyloxypyridines:1,n-Bis[N-(3-
dimethylcarbamoxy-[alpha]-picolyl)-N,N-
dialkyl(<=C10) ammonio]-alkane-(2,(n-1)-dione)
dibromide (n=2-12)
Not limited to the following example:
[[Page 942]]
1,10-Bis[N-(3-dimethylcarbamoxy-[alpha]- 77104-00-8
picolyl)-N-ethyl-N- methylammonio]decane-
2,9-dione dibromide........................
B. Precursors:
9. Family: Alkyl (Me, Et, n-Pr or i-Pr)
phosphonyldifluorides
Not limited to the following example:
DF: Methylphosphonyldifluoride.............. 676-99-3
10. Family: 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
Not limited to the following example:
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 3: The numerical sequence of the ``Schedule 1'' Toxic
Chemicals and Precursors is not consecutive so as to align with the
December 23, 2019, consolidated textual changes to ``Schedule 1'' of
the Annex on Chemicals to the Chemical Weapons Convention (CWC),
which reflect the decisions adopted by the CWC Conference of the
States Parties in November 2019.
PART 745--CHEMICAL WEAPONS CONVENTION REQUIREMENTS
0
5. The authority citation for 15 CFR part 745 is revised to read as
follows:
Authority: 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3
CFR, 1994 Comp., p. 950); 22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR
36703, 3 CFR 1999 Comp., p. 199; 50 U.S.C. 4801-4852; Notice of
November 12, 2019, 84 FR 61817 (November 13, 2019).
0
6. Supplement No. 1 to part 745 is revised to read as follows:
Supplement No. 1 to Part 745--Schedules of Chemicals
------------------------------------------------------------------------
CAS registry
No.
------------------------------------------------------------------------
Schedule 1
------------------------------------------------------------------------
A. Toxic Chemicals:
1. Family: O-Alkyl(<=C10, incl. cycloalkyl) alkyl
(Me, Et, n-Pr or i-Pr)- phosphonofluoridates
Not limited to the following examples:
Sarin: O-Isopropyl methylphosphonofluoridate 107-44-8
Soman: O-Pinacolyl methylphosphonofluoridate 96-64-0
2. Family: O-Alkyl (<=C10, incl. cycloalkyl) N,N-
dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidocyanidates
Not limited to the following example:
Tabun: O-Ethyl N,N-dimethyl 77-81-6
phosphoramidocyanidate.....................
3. Family: 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
Not limited to the following example:
VX: O-Ethyl S-2-diisopropylaminoethyl methyl 50782-69-9
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-chloroethylthio)ethane. 3563-36-8
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
13. Family: P-alkyl (H or <=C10, incl. cycloalkyl) N-
(1-(dialkyl(<=C10, incl.
cycloalkyl)amino))alkylidene(H or <=C10, incl.
cycloalkyl) phosphonamidic fluorides and
corresponding alkylated or protonated salts
Not limited to the following examples:
N-(1-(di-n-decylamino)-n-decylidene)-P- 2387495-99-8
decylphosphonamidic fluoride...............
Methyl-(1- 2387496-12-8
(diethylamino)ethylidene)phosphonamidofluor
idate......................................
14. Family: O-alkyl (H or <=C10, incl. cycloalkyl) N-
(1-(dialkyl(<=C10, incl.
cycloalkyl)amino))alkylidene(H or <=C10, incl.
cycloalkyl) phosphoramidofluoridates and
corresponding alkylated or protonated salts
Not limited to the following examples:
[[Page 943]]
O-n-Decyl N-(1-(di-n-decylamino)-n 2387496-00-4
decylidene)phosphoramidofluoridate.........
Methyl (1- 2387496-04-8
(diethylamino)ethylidene)phosphoramidofluor
idate......................................
Ethyl (1- 2387496-06-0
(diethylamino)ethylidene)phosphoramidofluor
idate......................................
15. Methyl- 2387496-14-0
(bis(diethylamino)methylene)phosphonamidofluoridate
16. Carbamates (quaternaries and bisquaternaries of
dimethylcarbamoyloxypyridines)
16.1. Family: Quaternaries of
dimethylcarbamoyloxypyridines: 1-[N,N-
dialkyl(<=C10)-N-(n-(hydroxyl, cyano,
acetoxy)alkyl(<=C10)) ammonio]-n-[N-(3-
dimethylcarbamoxy-[alpha]-picolinyl)-N,N-
dialkyl(<=C10) ammonio]decane dibromide (n=1-8)
Not limited to the following example:
1-[N,N-dimethyl-N-(2-hydroxy)ethylammonio]- 77104-62-2
10-[N-(3-dimethylcarbamoxy-[alpha]-
picolinyl)-N,N-dimethylammonio]decane
dibromide..................................
16.2. Family: Bisquaternaries of
dimethylcarbamoyloxypyridines:1,n-Bis[N-(3-
dimethylcarbamoxy-[alpha]-picolyl)-N,N-
dialkyl(<=C10) ammonio]-alkane-(2,(n-1)-dione)
dibromide (n=2-12).................................
Not limited to the following example:
1,10-Bis[N-(3-dimethylcarbamoxy-[alpha]- 77104-00-8
picolyl)-N-ethyl-N- methylammonio]decane-
2,9-dione dibromide........................
B. Precursors:
9. Family: Alkyl (Me, Et, n-Pr or i-Pr)
phosphonyldifluorides
Not limited to the following example:
DF: Methylphosphonyldifluoride.............. 676-99-3
10. Family: 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
Not limited to the following example:
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..........................
------------------------------------------------------------------------
Schedule 2
------------------------------------------------------------------------
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-(trifluoromethyl)-1- 382-21-8
propene............................................
3. BZ: 3-Quinuclidinyl benzilate.................... 6581-06-2
B. Precursors:
4. Family: 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,
Not limited to the following examples:
Methylphosphonyl dichloride................. 676-97-1
Dimethyl methylphosphonate.................. 756-79-6
Exemption: Fonofos: O-Ethyl S-phenyl 944-22-9
ethylphosphonothiolothionate...................
5. Family: N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
phosphoramidic dihalides
6. Family: 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. Family: N,N-Dialkyl (Me, Et, n-Pr or i-Pr)
aminoethyl-2-chlorides and corresponding protonated
salts
11. Family: 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. Family: 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
------------------------------------------------------------------------
Schedule 3
------------------------------------------------------------------------
A. Toxic Chemicals:
1. Phosgene: Carbonyl dichloride.................... 75-44-5
2. Cyanogen chloride................................ 506-77-4
3. Hydrogen cyanide................................. 74-90-8
4. Chloropicrin: Trichloronitromethane.............. 76-06-2
B. Precursors:
5. Phosphorus oxychloride........................... 10025-87-3
6. Phosphorus trichloride........................... 7719-12-2
7. Phosphorus pentachloride......................... 10026-13-8
8. Trimethyl phosphite.............................. 121-45-9
9. Triethyl phosphite............................... 122-52-1
10. Dimethyl phosphite.............................. 868-85-9
11. Diethyl phosphite............................... 762-04-9
12. Sulfur monochloride............................. 10025-67-9
13. Sulfur dichloride............................... 10545-99-0
14. Thionyl chloride................................ 7719-09-7
15. Ethyldiethanolamine............................. 139-87-7
[[Page 944]]
16. Methyldiethanolamine............................ 105-59-9
17. Triethanolamine................................. 102-71-6
------------------------------------------------------------------------
Note to Supplement 1: The numerical sequence of the ``Schedule
1'' Toxic Chemicals and Precursors is not consecutive so as to align
with the December 23, 2019, consolidated textual changes to
``Schedule 1'' of the Annex on Chemicals to the Chemical Weapons
Convention (CWC), which reflect the decisions adopted by the CWC
Conference of the States Parties in November 2019.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2020-27759 Filed 1-6-21; 8:45 am]
BILLING CODE 3510-33-P