Chemical Weapons Convention Regulations and the Export Administration Regulations: Additions to Schedule 1(A) of the Annex on Chemicals to the Chemical Weapons Convention, 936-944 [2020-27759]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[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 (https://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