Chemical Weapons Convention Regulations: Reducing the Concentration Level Above Which Mixtures Containing Schedule 2A Chemicals Are Subject to Declaration and Reporting Requirements, 42615-42619 [2023-13736]
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Federal Register / Vol. 88, No. 126 / Monday, July 3, 2023 / Rules and Regulations
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Issued in Washington, DC, on June 27,
2023.
Brian Konie,
Acting Manager, Rules and Regulations
Group.
[FR Doc. 2023–13967 Filed 6–30–23; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 713
[Docket No. 230502–0117]
RIN 0694–AI54
Chemical Weapons Convention
Regulations: Reducing the
Concentration Level Above Which
Mixtures Containing Schedule 2A
Chemicals Are Subject to Declaration
and Reporting Requirements
Bureau of Industry and
Security, Commerce.
ACTION: Final rule.
AGENCY:
The Bureau of Industry and
Security (BIS) is publishing this final
rule to amend the Chemical Weapons
Convention Regulations (CWCR) to
reduce the concentration threshold level
above which mixtures containing a
Schedule 2A chemical are subject to the
declaration requirements that apply to
Schedule 2A chemical production,
processing and consumption under the
Chemical Weapons Convention (CWC).
This final rule also amends the CWCR
to reduce the concentration threshold
level above which mixtures containing
a Schedule 2A chemical are subject to
the declaration and reporting
requirements that apply to exports and
imports of Schedule 2A chemicals
under the CWC. These regulatory
amendments bring the CWCR into
further alignment with guidelines
adopted by the Organization for the
Prohibition of Chemical Weapons
(OPCW) Conference of the States Parties
(CSP), which established a low
concentration limit for Schedule 2A
chemicals.
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SUMMARY:
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DATES:
This rule is effective July 3,
2023.
For
questions on the CWCR requirements
that apply to Schedule 2 chemicals
(which include Schedule 2A ‘‘Toxic
Chemicals’’ and Schedule 2B
‘‘Precursors’’), 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:
FOR FURTHER INFORMATION CONTACT:
Background
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 and, hereinafter, ‘‘CWC’’ or
‘‘Convention’’), which entered into force
on April 29, 1997, is an international
arms control treaty that aims 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 (i.e.,
the countries that have ratified or
acceded to the CWC). Under the CWC,
States Parties have agreed to destroy any
stockpiles of chemical weapons that
they may hold, any chemical weapons
production facilities that they own or
possess, and any chemical weapons that
they abandoned on the territory of other
States Parties. The CWC established the
OPCW 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
CWC States Parties. All CWC States
Parties are members of the OPCW.
Under the CWC, States Parties have
agreed to implement a comprehensive
data declaration, notification, and
inspection regime to provide
transparency and to verify that relevant
facilities are not engaged in activities
prohibited under the CWC. Article VI of
the CWC and the CWC’s Verification
Annex set out declaration, notification,
and inspection requirements for three
categories of scheduled chemicals
(Schedule 1, Schedule 2, and Schedule
3 chemicals) and for unscheduled
discrete organic chemicals (i.e., carbon
compounds other than oxides, sulfides,
and metal carbonates that are not listed
in Schedule 1, Schedule 2, or Schedule
3) when produced, processed, or
consumed in excess of certain
thresholds. The Verification
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42615
Requirements for Schedule 2 (including
Schedule 2A) chemicals are specified in
Part VII of the Verification Annex
(‘‘Schedule 2 Regime’’).
The CWC’s Annex on Chemicals
identifies the criteria for listing
chemicals in Schedule 1, Schedule 2, or
Schedule 3, and lists the specific
chemicals included on each Schedule.
There are three Schedule 2A chemicals
listed in the Annex on Chemicals:
(1) Amiton: 0,0-Diethyl S-[2(diethylamino)ethyl] phosphorothiolate
and corresponding alkylated or
protonated salts (78–53–5);
(2) PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene (382–21–8);
and
(3) BZ: 3-Quinuclidinyl benzilate
(6581–06–2).
As stated in the guidelines pertaining
to Schedule 2 chemicals that are set
forth in the CWC’s Annex on Chemicals,
the inclusion of these three chemicals
on Schedule 2A reflects a determination
by the CWC States Parties that these
chemicals pose ‘‘a significant risk to the
object and purpose of the Convention’’
due to their ‘‘lethal or incapacitating
toxicity’’ and that they are ‘‘not
produced in large commercial quantities
for purposes not prohibited’’ under the
CWC. Two of the three chemicals
(Amiton and BZ) are defense articles
subject to the International Traffic in
Arms Regulations (ITAR) (22 CFR parts
120–130), which include registration,
recordkeeping, and export and reexport
licensing requirements that are
administered by the Department of
State. The third chemical (PFIB) is a
waste product from the production of
fluoromonomers, which are
unscheduled discrete organic chemicals
under the CWC. PFIB (including
mixtures with concentrations well
under 10%) is specified on the
Commerce Control List (CCL), supp. no.
1 to part 774 of the Export
Administration Regulations (EAR) and
thereby subject to export license
requirements administered by BIS.
According to export data collected by
BIS, exports of PFIB are minimal.
The provisions of the CWC that affect
commercial activities involving
scheduled 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 CWCR (15 CFR
parts 710–722) and the EAR (15 CFR
742.18 and part 745). BIS administers
both the CWCR and the EAR. BIS
maintains the list of Schedule 2A
chemicals in the CWCR (supplement no.
1 to part 713) and the EAR (supplement
no. 1 to part 745). BIS also administers
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Federal Register / Vol. 88, No. 126 / Monday, July 3, 2023 / Rules and Regulations
the declaration, reporting, notification,
and verification requirements, including
those for Schedule 2A chemicals, that
are described in parts 713 and 716 of the
CWCR.
The Regime for Schedule 2 Chemicals
and Facilities Related to such Chemicals
(CWC Verification Annex, Part VII),
provides in paragraph 5 that
declarations ‘‘are generally not required
for mixtures containing a low
concentration of a Schedule 2 chemical’’
and are only required in accordance
with guidelines approved by the
Conference of the States Parties to the
Convention ‘‘in cases where the ease of
recovery from the mixture of the
Schedule 2 chemical and its total weight
are deemed to pose a risk to the object
and purpose of [the] Convention.’’ Prior
to the approval of such guidelines, the
CWCIA was enacted (in October 1998)
and the CWCR were implemented (on
December 30, 1999). The CWCIA
prohibits the imposition of routine
inspection or reporting requirements
pertaining to mixtures containing a
Schedule 2 chemical if the
concentration of the Schedule 2
chemical in the mixture is less than 10
percent (see 22 U.S.C. Chapter 75,
section 6742(a)(1)). Prior to the issuance
of this rule, the CWCR required that the
calculation of the quantity of any single
Schedule 2 chemical that was produced,
processed, or consumed also include the
quantities produced, processed or
consumed in mixtures when the
concentration of the Schedule 2
chemical in the mixture was 30% or
more by volume or by weight,
whichever yielded the lesser percentage
(15 CFR 713.2(a)(3)).
Nearly ten years following the
enactment of the CWCIA, at the
Fourteenth Session of the CSP
(November 30–December 4, 2009), the
States Parties adopted guidelines
regarding low-concentration limits,
detailed in document ‘‘Decision C–14/
DEC.4’’ (‘‘OPCW Guidelines’’), for
Schedule 2A chemicals. These
guidelines provide that declarations are
not required under Part VII of the
Verification Annex for a chemical
mixture containing a Schedule 2A
chemical, if the concentration of the
Schedule 2A chemical in the mixture is:
(1) 1% or less; or
(2) More than 1%, but less than or
equal to 10%, provided that the annual
amount of the Schedule 2A chemical
produced, processed or consumed is
less than the relevant verification
threshold, which is ten times the
relevant declaration threshold.
This final rule accordingly amends
part 713 of the CWCR by reducing the
concentration threshold level above
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which mixtures containing a Schedule
2A chemical are counted toward the
declaration and reporting requirements
described in the CWCR. This change
makes the Schedule 2A mixture
concentration threshold consistent with
the OPCW Guidelines, subject to the
constraint imposed by the 10% low
concentration threshold limit allowed
under the CWCIA. Specifically, this
final rule amends the CWCR to replace
the previous low concentration
threshold for mixtures containing a
Schedule 2A chemical (i.e., a
concentration of 30% or more, by
volume or weight) with a low
concentration threshold of 10% or more.
This rule modifies only the declaration
requirements under the CWCR for
mixtures containing Schedule 2A
chemicals; it does not modify the
declaration requirements for any other
chemicals or any requirements
applicable to the three Schedule 2A
chemicals under either the EAR or
ITAR.
Amendments to Section 713.2 of the
CWCR—Annual Declaration
Requirements for Plant Sites That
Produce, Process or Consume Schedule
2 Chemicals in Excess of Specified
Thresholds
Section 713.2 of the CWCR requires
submission of a declaration from a plant
site if one or more plants at that site
produced, processed or consumed a
Schedule 2 chemical during any of the
three previous calendar years, or
anticipate doing so in the next calendar
year, in excess of the declaration
threshold (i.e., the quantity specified for
that Schedule 2 chemical in
§ 713.2(a)(1)(i)(A)(1) through (3) of the
CWCR). Since the low concentration
threshold for Schedule 2A chemicals
now differs from the low concentration
threshold for Schedule 2B chemicals,
this rule revises the text of the current
§ 713.2(a)(3)(i) and adds paragraphs
(a)(3)(i)(A), specific to Schedule 2A
chemicals, and (a)(3)(i)(B), specific to
Schedule 2B chemicals. Section
713.2(a)(3)(i)(A) reduces the low
concentration threshold for the
declaration requirements that apply to
mixtures containing a Schedule 2A
chemical from a concentration of 30%
or more of the Schedule 2A chemical by
volume or weight, whichever formula
yields the lesser percentage, to a
concentration of 10% or more of the
Schedule 2A chemical by volume or
weight, whichever yields the lesser
percentage. To distinguish the low
concentration threshold for Schedule 2B
chemicals, which remains unchanged,
from the new low concentration
threshold for Schedule 2A chemicals,
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the low concentration threshold for the
declaration requirements that apply to
the production, processing or
consumption of mixtures containing a
Schedule 2B chemical is separately
described in § 713.2(a)(3)(i)(B) of the
CWCR and remains at a concentration of
30% or more by volume or weight,
whichever formula yields the lesser
percentage.
This rule also makes conforming
changes to § 713.2(a)(3)(ii) and (iii) of
the CWCR to reflect the change
described above in the low
concentration threshold for mixtures
containing Schedule 2A chemicals. In
addition, this rule adds Notes 1 through
4 to § 713.2(a)(3). Notes 1 and 2 provide
examples of how to determine
declaration and reporting requirements
for mixtures containing a Schedule 2A
chemical. Notes 3 and 4 contain
updated versions of examples that were
previously included in § 713.2(a)(3)(iii).
These examples are included as Notes
because their purpose is to clarify the
application of the regulatory
requirements described in § 713.2(a)(3).
Amendments to Section 713.3 of the
CWCR—Annual Declaration and
Reporting Requirements for Exports and
Imports of Schedule 2 Chemicals
Section 713.3 of the CWCR requires
the submission of declarations and/or
reports of exports and imports of
Schedule 2 chemicals from declared
plant sites, undeclared plant sites, and
trading companies, along with any other
persons subject to the CWCR, if such
entities or persons exported or imported
a Schedule 2 chemical in a quantity
above the applicable threshold level,
including amounts in mixtures above
the specified low concentration level.
Since the low concentration threshold
for Schedule 2A chemicals now differs
from the low concentration threshold
for Schedule 2B chemicals, this rule
revises the text of the current
§ 713.3(b)(2) and adds paragraphs
(b)(2)(i)(A), specific to Schedule 2A
chemicals, and (b)(2)(i)(B), specific to
Schedule 2B chemicals. Section
713.3(b)(2)(i)(A) reduces the low
concentration threshold for the
declaration and reporting requirements
that apply to exports and imports of
mixtures containing a Schedule 2A
chemical from a concentration of 30%
or more of the Schedule 2A chemical by
volume or weight, whichever formula
yields the lesser percentage, to a
concentration of 10% or more of the
Schedule 2A chemical by volume or
weight, whichever formula yields the
lesser percentage. To distinguish the
low concentration threshold for
Schedule 2B chemicals, which remains
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unchanged, from the new low
concentration threshold for Schedule
2A chemicals, the low concentration
threshold for the declaration and
reporting requirements that apply to
exports and imports of mixtures
containing a Schedule 2B chemical is
separately described in
§ 713.3(b)(2)(i)(B) of the CWCR and
remains at a concentration of 30% or
more by volume or weight, whichever
formula yields the lesser percentage.
This final rule revises Notes 1 and 2
to § 713.3(b)(2) and, consistent with the
amendments described OPCW
guidelines, adds § 713.3(b)(2)(ii) and
(iii) to include, respectively, the
information that was previously
contained in these two notes. As
revised, the notes provide examples of
how to determine declaration and
reporting requirements for exports and
imports of mixtures containing a
Schedule 2A chemical. New
§ 713.3(b)(2)(ii) clarifies how to count
the amount of a Schedule 2 chemical in
a mixture (i.e., the quantity of each
Schedule 2A or Schedule 2B chemical
in a mixture must be counted,
separately; however, the total weight of
the mixture must not be counted). New
§ 713.3(b)(2)(iii) includes a general
reference to the low concentration
threshold levels that are now described
in § 713.3(b)(2)(i). It also clarifies that
the Schedule 2A and Schedule 2B low
concentration thresholds set forth in
§ 713.3(b)(2)(i) apply only for
declaration and reporting purposes
under the CWCR and not for other
purposes (e.g., determining whether the
export of a mixture requires an End-Use
Certificate or a license per the relevant
provisions in the EAR or the ITAR).
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.
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
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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. Although this
rule amends the CWCR to reduce the
low concentration threshold for
mixtures containing Schedule 2A
chemicals for purposes of the applicable
declaration and reporting requirements
and, in so doing, indirectly affects the
burden imposed by certain Schedule 2A
chemical requirements in the EAR, BIS
believes that the overall increases in
burdens associated with the following
information collections will be minimal:
• OMB control number 0694–0091
(Chemical Weapons Convention
Declaration and Report Handbook and
Forms & Chemical Weapons Convention
Regulations (CWCR))—this collection
includes all Schedule 1, Schedule 2,
Schedule 3, and unscheduled discrete
organic chemical CWCR declarations,
reports, notifications, and on-site
inspections of chemical facilities and
carries a total burden estimate of 15,815,
of which an estimated 762 hours pertain
to the Schedule 2 (i.e., both Schedule
2A and Schedule 2B) declaration regime
and 12,117 pertain to inspections across
all (i.e., Schedule 1, Schedule 2,
Schedule 3, and unscheduled discrete
organic chemical) facilities;
• OMB control number 0694–0117
(Chemical Weapons Convention
Provisions of the Export Administration
Regulations (EAR))—this collection
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 53
hours.
BIS does not expect the burden hours
associated with these collections to
change. This rule changes the
declaration requirements only for
mixtures containing between 10 and 30
percent of three chemicals with
extremely limited commercial
applications. Two of the three chemicals
at issue (i.e., the chemical Amiton: 0,0
Diethyl S-[2-(diethylamino) ethyl]
phosphorothiolate and corresponding
alkylated or protonated salts and the
chemical BZ: 3- Quinuclidinyl
benzilate) are defense articles subject to
the export licensing jurisdiction of the
Department of State under the ITAR.
Manufacturers, exporters, and
temporary importers of these items are
therefore required to register under the
ITAR (22 CFR122.1) and are subject to
recordkeeping obligations under the
ITAR including maintenance of records
concerning the manufacture,
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acquisition, and disposition of defense
articles (22 CFR 122.5). This final rule
does not impose a significant additional
burden on companies that produce or
export Amiton and BZ because the
companies are already required to
maintain sufficient records to comply
with their recordkeeping obligations
under ITAR. The third chemical (the
chemical PFIB: 1,1,3,3,3-Pentafluoro2(trifluoromethyl)- 1-propene) is a
byproduct of fluoromonomer
production. Producers of
fluoromonomers are already subject to
the CWC declaration and inspection
requirements for unscheduled discrete
organic chemicals, which include
regular, thorough site inspections under
the procedures set out in Part IX of the
Verification Annex to the CWC and
implemented in part 715 of the CWCR.
Consequently, BIS anticipates that this
rule will impose few, if any, new
reporting obligations on any U.S.
company. These changes to the burden
hours are within the bounds of the
existing estimates.
Additional information regarding
these collections of information,
including all background materials, can
be found at https://www.reginfo.gov/
public/do/PRAMain and using the
search function to enter either the title
of the collection or the OMB Control
Number.
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) (APA), requiring notice of
proposed rulemaking, the opportunity
for public participation and a delay in
effective date, are waived for good cause
as unnecessary and contrary to the
public interest (see 5 U.S.C. 553(b)(B)).
A delay of this rulemaking to provide an
opportunity for public comment is
unnecessary because this rule
implements, to the extent permitted by
the CWCIA, a treaty obligation.
Specifically, paragraph 5 of Part VII of
the CWC Verification Annex provides
for declarations to be provided in
accordance with guidelines adopted by
the CSP regarding low-concentration
mixtures of Schedule 2 chemicals. CSP
Decision C–14/DEC.4 adopted such
guidelines, which provide a low
concentration limit of 1% for Schedule
2A chemicals, or 10% provided that the
annual amount produced of the
Schedule 2A chemical does not exceed
certain specified thresholds. The
decision adopting the guidelines further
called for the States Parties, in
accordance with their domestic legal
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processes, to implement the guidelines
as soon as practicable.
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. In light of U.S.
obligations under the CWC, this rule
serves the public interest by
implementing without further delay the
OPCW guidelines under U.S. domestic
law.
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 713
Chemicals, Exports, Foreign trade,
Imports, Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, part 713 of the Chemical
Weapons Convention Regulations (15
CFR parts 710–722) is amended as
follows:
PART 713—ACTIVITIES INVOLVING
SCHEDULE 2 CHEMICALS
1. The authority citation for 15 CFR
part 713 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.
2. Amend § 713.2 by revising
paragraph (a)(3) to read as follows:
■
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§ 713.2 Annual declaration requirements
for plant sites that produce, process or
consume Schedule 2 chemicals in excess
of specified thresholds.
(a) * * *
(3) Mixtures containing a Schedule 2
chemical—(i) Mixtures that must be
counted. When determining the total
quantity of a Schedule 2 chemical
produced, processed or consumed at a
plant on your plant site, you must count
the quantity of each Schedule 2
chemical in a mixture, in the following
circumstances:
(A) Schedule 2A chemicals in
mixtures. The concentration of each
Schedule 2A chemical in the mixture is
10% or more by volume or weight,
whichever yields the lesser percentage;
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(B) Schedule 2B chemicals in
mixtures. The concentration of each
Schedule 2B chemical in the mixture is
30% or more by volume or weight,
whichever yields the lesser percentage.
(ii) How to count the quantity of each
Schedule 2 chemical in a mixture. You
must count, separately, the quantity of
each Schedule 2A or Schedule 2B
chemical in a mixture when
determining the total quantity of a
Schedule 2 chemical produced,
processed or consumed at a plant on
your plant site. Do not count the total
weight of a mixture.
(iii) Determining declaration
requirements for production, processing
and consumption. If the total quantity of
a Schedule 2 chemical produced,
processed or consumed at a plant on
your plant site, including mixtures that
contain 10% or more concentration of a
Schedule 2A chemical or 30% or more
concentration of a Schedule 2B
chemical, exceeds the applicable
declaration threshold set forth in
paragraphs (a)(1)(i)(A)(1) through (3) of
this section, you have a declaration
requirement and must separately
declare each Schedule 2A or Schedule
2B chemical.
Note 1 to § 713.2(a)(3)—Example: If, during
the past calendar year, a plant on your plant
site produced, processed, or consumed a
mixture containing 130 kilograms of PFIB
with a concentration of 12%, the total
amount of PFIB produced, processed, or
consumed at that plant for CWCR purposes
would be 130 kilograms, which exceeds the
declaration threshold of 100 kilograms for
that Schedule 2A chemical. Consequently,
you must declare 130 kilograms of
production, processing, or consumption of
PFIB at that plant site during the past
calendar year.
Note 2 to § 713.2(a)(3)—Example: If, during
the past calendar year, a plant on your plant
site produced, processed, or consumed a
mixture containing 130 kilograms of PFIB
with a concentration of 8%, the total amount
of PFIB produced, processed, or consumed at
that plant for CWCR purposes would be 0
kilograms, which would not trigger a
declaration requirement. This outcome is
based on the fact that the concentration of
PFIB in the mixture is less than 10% and, for
CWCR purposes would not have to be
‘‘counted.’’
Note 3 to § 713.2(a)(3)—Example: If, during
the past calendar year, a plant on your plant
site produced a mixture containing 300
kilograms of thiodiglycol with a
concentration of 32% and also produced 800
kilograms of pure thiodiglycol, the total
amount of thiodiglycol produced at that plant
for CWCR purposes would be 1,100
kilograms, which exceeds the declaration
threshold of 1 metric ton for that Schedule
2B chemical. Consequently, you must declare
production of thiodiglycol at that plant site
during the past calendar year.
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Note 4 to § 713.2(a)(3)—Example: If, during
the past calendar year, a plant on your plant
site processed a mixture containing 300
kilograms of thiodiglycol with a
concentration of 25% and also processed 800
kilograms of pure thiodiglycol, the total
amount of thiodiglycol processed at that
plant for CWCR purposes would be 800
kilograms and would not trigger a declaration
requirement. This outcome is based on the
fact that the concentration of thiodiglycol in
the mixture is less than 30% and, therefore,
would not have to be ‘‘counted’’ and added
to the 800 kilograms of pure thiodiglycol
processed at that plant during the past
calendar year.
*
*
*
*
*
3. Amend § 713.3 by revising
paragraph (b)(2) to read as follows:
■
§ 713.3 Annual declaration and reporting
requirements for exports and imports of
Schedule 2 chemicals.
*
*
*
*
*
(b) * * *
(2) Mixtures containing a Schedule 2
chemical—(i) Mixtures that must be
counted. The quantity of each Schedule
2 chemical contained in a mixture must
be counted for the declaration or
reporting of an export or import, in the
following circumstances:
(A) Schedule 2A chemicals in
mixtures. The concentration of each
Schedule 2A chemical in the mixture is
10% or more by volume or weight,
whichever yields the lesser percentage;
(B) Schedule 2B chemicals in
mixtures. The concentration of each
Schedule 2B chemical in the mixture is
30% or more by volume or weight,
whichever yields the lesser percentage.
(ii) How to count the quantity of each
Schedule 2 chemical in a mixture. You
must count, separately, the quantity of
each Schedule 2A or Schedule 2B
chemical in a mixture when
determining the total quantity of a
Schedule 2 chemical that was exported
from or imported to a declared plant
site, or individually exported or
imported, above the applicable
threshold set forth in paragraphs
(b)(1)(i) through (iii) of this section. Do
not count the total weight of a mixture.
(iii) Mixture concentration thresholds
apply only for declaration and reporting
purposes. The concentration thresholds
for Schedule 2A and Schedule 2B
chemical mixtures set forth in paragraph
(b)(2)(i) of this section apply only for the
declaration and reporting purposes
described in the CWCR. These
thresholds do not apply for purposes of
determining whether the export of your
mixture to a non-State Party requires an
End-Use Certificate. Nor do they apply
for purposes of determining whether
you need to obtain an export license
from BIS (see § 742.2, § 742.18 and
E:\FR\FM\03JYR1.SGM
03JYR1
Federal Register / Vol. 88, No. 126 / Monday, July 3, 2023 / Rules and Regulations
§ 745.2 of the Export Administration
Regulations (15 CFR parts 730 through
774)) or from the Department of State
(see the International Traffic in Arms
Regulations (22 CFR parts 120 through
130)).
Note 1 to § 713.3(b)(2)—Example: If, during
the past calendar year, your plant site
exported or imported a mixture containing 3
kilograms of Amiton with a concentration of
12%, the total amount of Amiton exported or
imported for CWCR purposes is 3 kilograms,
which exceeds the declaration threshold of 1
kilogram for that Schedule 2A chemical.
Consequently, you must declare 3 kilograms
of export or import at that plant site during
the past calendar year.
Note 2 to § 713.2(b)(2)—Example: If, during
the past calendar year, your plant site
exported or imported a mixture containing 3
kilograms of Amiton with a concentration of
8%, the total amount of Amiton exported or
imported for CWCR purposes would be 0
kilograms and would not trigger a declaration
requirement. This outcome is based on the
fact that the concentration of Amiton in the
mixture is less than 10% and, therefore,
would not have to be ‘‘counted.’’
*
*
*
*
*
Matthew S. Borman,
Deputy Assistant Secretary for Export
Administration.
[FR Doc. 2023–13736 Filed 6–30–23; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2023–0552]
Safety Zones in Reentry Sites;
Jacksonville, Daytona, and Canaveral,
Florida
Coast Guard, DHS.
Notification of enforcement of
regulation.
AGENCY:
ACTION:
The Coast Guard is activating
three safety zones for the Commercial
Resupply Services (CRS–28) mission
reentry, vehicle splashdown, and
recovery operations. These operations
will occur in the U.S. Exclusive
Economic Zone (EEZ). Our regulation
for safety zones in reentry sites within
the Seventh Coast Guard District
identifies the regulated areas for this
event. No U.S.-flagged vessel may enter
the safety zones unless authorized by
the Captain of the Port Jacksonville or
a designated representative. Foreignflagged vessels are encouraged to remain
outside the safety zones.
lotter on DSK11XQN23PROD with RULES1
SUMMARY:
VerDate Sep<11>2014
16:10 Jun 30, 2023
Jkt 259001
The regulations in 33 CFR
165.T07–0806 will be enforced for the
safety zones identified in the
SUPPLEMENTARY INFORMATION section
below for the dates and times specified.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this
notification of enforcement, call or
email Lieutenant Griffin Terpstra, Sector
Jacksonville, Waterways Division, U.S.
Coast Guard; telephone 904–714–7616,
email Griffin.D.Terpstra@uscg.mil.
SUPPLEMENTARY INFORMATION: With this
document, the Coast Guard Captain of
the Port (COTP) Jacksonville is
activating a portion of the safety zone as
listed in 33 CFR 165.T07–0806(a)(1),
and the safety zones listed in (a)(2) and
(a)(3) on June 30, 2023 through July 4,
2023, for the CRS–28 Commercial Crew
mission reentry vehicle splashdown,
and the associated recovery operations
in the U.S. EEZ. These safety zones are
located within the COTP Jacksonville
Area of Responsibility (AOR) offshore of
Jacksonville, Daytona, and Cape
Canaveral, Florida. The Coast Guard is
activating these safety zones in order to
protect vessels and waterway users from
the potential hazards created by reentry
vehicle splashdowns and recovery
operations. In accordance with the
general regulations in 33 CFR part 165,
subpart C, no U.S.-flagged vessel may
enter the safety zones unless authorized
by the COTP Jacksonville or a
designated representative except as
provided in § 165.T07–0806(d)(3). All
foreign-flagged vessels are encouraged
to remain outside the safety zones.
There are two other safety zones listed
in § 165.T07–0806(a)(4) and (a)(5),
which are located within the COTP St.
Petersburg AOR, in addition to a portion
of zone listed in (a)(1) that is located in
the COTP Savannah AOR, that are being
simultaneously activated through a
separate notifications of enforcement of
the regulation document issued under
Docket Numbers USCG–2023–0551, and
USCG–2023–0553.1
Twenty-four hours prior to the CRS–
28 recovery operations, the COTP
Jacksonville, the COTP Savannah, the
COTP St. Petersburg, or designated
representative will inform the public
that whether any of the five safety zones
described in § 165.T07–0806, paragraph
(a), will remain activated (subject to
enforcement). If one of the safety zones
described in § 165.T07–0806, paragraph
(a), remains activated it will be enforced
for four hours prior to the CRS–28
splashdown and remain activated until
DATES:
1 These notifications of enforcement of the
regulation can be found at: https://regulations.gov
by searching for docket number USCG–2023–0551,
and USCG–2023–0553.
PO 00000
Frm 00033
Fmt 4700
Sfmt 4700
42619
announced by Broadcast Notice to
Mariners on VHF–FM channel 16, and/
or Marine Safety Information Bulletin
(as appropriate) that the safety zone is
no longer subject to enforcement. After
the CRS–28 reentry vehicle splashdown,
the COTP or a designated representative
will grant general permission to come
no closer than 3 nautical miles of any
reentry vehicle or space support vessel
engaged in the recovery operations,
within the activated safety zone
described in § 165.T07–0806, paragraph
(a). Once the reentry vehicle, and any
personnel involved in reentry service,
are removed from the water and secured
onboard a space support vessel, the
COTP or designated representative will
issue a Broadcast Notice to Mariners on
VHF–FM channel 16 announcing the
activated safety zone is no longer
subject to enforcement. The recovery
operations are expected to last
approximately one hour.
The Coast Guard may be assisted by
other Federal, State, or local law
enforcement agencies in enforcing this
regulation.
Dated: June 29, 2023.
Janet Espino-Young,
Captain, U.S. Coast Guard, Captain of the
Port Jacksonville.
[FR Doc. 2023–14156 Filed 6–30–23; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2023–0544]
RIN 1625–AA00
Safety Zone; Corpus Christi Bay,
Corpus Christi, TX
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
certain navigable waters in the Corpus
Christi Bay. The safety zone is needed
to protect personnel, vessels, and the
marine environment from potential
hazards created by a fireworks display
launched from a barge in the Corpus
Christi Bay in Corpus Christi, Texas.
Entry of vessels or persons into this
zone is prohibited unless specifically
authorized by the Captain of the Port
Sector Corpus Christi or a designated
representative.
SUMMARY:
This rule is effective from 9 p.m.
through 10 p.m. on July 4, 2023.
DATES:
E:\FR\FM\03JYR1.SGM
03JYR1
]]>Agencies
[Federal Register Volume 88, Number 126 (Monday, July 3, 2023)]
[Rules and Regulations]
[Pages 42615-42619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13736]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 713
[Docket No. 230502-0117]
RIN 0694-AI54
Chemical Weapons Convention Regulations: Reducing the
Concentration Level Above Which Mixtures Containing Schedule 2A
Chemicals Are Subject to Declaration and Reporting Requirements
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Industry and Security (BIS) is publishing this
final rule to amend the Chemical Weapons Convention Regulations (CWCR)
to reduce the concentration threshold level above which mixtures
containing a Schedule 2A chemical are subject to the declaration
requirements that apply to Schedule 2A chemical production, processing
and consumption under the Chemical Weapons Convention (CWC). This final
rule also amends the CWCR to reduce the concentration threshold level
above which mixtures containing a Schedule 2A chemical are subject to
the declaration and reporting requirements that apply to exports and
imports of Schedule 2A chemicals under the CWC. These regulatory
amendments bring the CWCR into further alignment with guidelines
adopted by the Organization for the Prohibition of Chemical Weapons
(OPCW) Conference of the States Parties (CSP), which established a low
concentration limit for Schedule 2A chemicals.
DATES: This rule is effective July 3, 2023.
FOR FURTHER INFORMATION CONTACT: For questions on the CWCR requirements
that apply to Schedule 2 chemicals (which include Schedule 2A ``Toxic
Chemicals'' and Schedule 2B ``Precursors''), 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 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 and, hereinafter, ``CWC'' or
``Convention''), which entered into force on April 29, 1997, is an
international arms control treaty that aims 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 (i.e., the countries that have
ratified or acceded to the CWC). Under the CWC, States Parties have
agreed to destroy any stockpiles of chemical weapons that they may
hold, any chemical weapons production facilities that they own or
possess, and any chemical weapons that they abandoned on the territory
of other States Parties. The CWC established the OPCW 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 CWC States Parties. All CWC States Parties
are members of the OPCW.
Under the CWC, States Parties have agreed to implement a
comprehensive data declaration, notification, and inspection regime to
provide transparency and to verify that relevant facilities are not
engaged in activities prohibited under the CWC. Article VI of the CWC
and the CWC's Verification Annex set out declaration, notification, and
inspection requirements for three categories of scheduled chemicals
(Schedule 1, Schedule 2, and Schedule 3 chemicals) and for unscheduled
discrete organic chemicals (i.e., carbon compounds other than oxides,
sulfides, and metal carbonates that are not listed in Schedule 1,
Schedule 2, or Schedule 3) when produced, processed, or consumed in
excess of certain thresholds. The Verification Requirements for
Schedule 2 (including Schedule 2A) chemicals are specified in Part VII
of the Verification Annex (``Schedule 2 Regime'').
The CWC's Annex on Chemicals identifies the criteria for listing
chemicals in Schedule 1, Schedule 2, or Schedule 3, and lists the
specific chemicals included on each Schedule. There are three Schedule
2A chemicals listed in the Annex on Chemicals:
(1) Amiton: 0,0-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate
and corresponding alkylated or protonated salts (78-53-5);
(2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene (382-
21-8); and
(3) BZ: 3-Quinuclidinyl benzilate (6581-06-2).
As stated in the guidelines pertaining to Schedule 2 chemicals that
are set forth in the CWC's Annex on Chemicals, the inclusion of these
three chemicals on Schedule 2A reflects a determination by the CWC
States Parties that these chemicals pose ``a significant risk to the
object and purpose of the Convention'' due to their ``lethal or
incapacitating toxicity'' and that they are ``not produced in large
commercial quantities for purposes not prohibited'' under the CWC. Two
of the three chemicals (Amiton and BZ) are defense articles subject to
the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-
130), which include registration, recordkeeping, and export and
reexport licensing requirements that are administered by the Department
of State. The third chemical (PFIB) is a waste product from the
production of fluoromonomers, which are unscheduled discrete organic
chemicals under the CWC. PFIB (including mixtures with concentrations
well under 10%) is specified on the Commerce Control List (CCL), supp.
no. 1 to part 774 of the Export Administration Regulations (EAR) and
thereby subject to export license requirements administered by BIS.
According to export data collected by BIS, exports of PFIB are minimal.
The provisions of the CWC that affect commercial activities
involving scheduled 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
CWCR (15 CFR parts 710-722) and the EAR (15 CFR 742.18 and part 745).
BIS administers both the CWCR and the EAR. BIS maintains the list of
Schedule 2A chemicals in the CWCR (supplement no. 1 to part 713) and
the EAR (supplement no. 1 to part 745). BIS also administers
[[Page 42616]]
the declaration, reporting, notification, and verification
requirements, including those for Schedule 2A chemicals, that are
described in parts 713 and 716 of the CWCR.
The Regime for Schedule 2 Chemicals and Facilities Related to such
Chemicals (CWC Verification Annex, Part VII), provides in paragraph 5
that declarations ``are generally not required for mixtures containing
a low concentration of a Schedule 2 chemical'' and are only required in
accordance with guidelines approved by the Conference of the States
Parties to the Convention ``in cases where the ease of recovery from
the mixture of the Schedule 2 chemical and its total weight are deemed
to pose a risk to the object and purpose of [the] Convention.'' Prior
to the approval of such guidelines, the CWCIA was enacted (in October
1998) and the CWCR were implemented (on December 30, 1999). The CWCIA
prohibits the imposition of routine inspection or reporting
requirements pertaining to mixtures containing a Schedule 2 chemical if
the concentration of the Schedule 2 chemical in the mixture is less
than 10 percent (see 22 U.S.C. Chapter 75, section 6742(a)(1)). Prior
to the issuance of this rule, the CWCR required that the calculation of
the quantity of any single Schedule 2 chemical that was produced,
processed, or consumed also include the quantities produced, processed
or consumed in mixtures when the concentration of the Schedule 2
chemical in the mixture was 30% or more by volume or by weight,
whichever yielded the lesser percentage (15 CFR 713.2(a)(3)).
Nearly ten years following the enactment of the CWCIA, at the
Fourteenth Session of the CSP (November 30-December 4, 2009), the
States Parties adopted guidelines regarding low-concentration limits,
detailed in document ``Decision C-14/DEC.4'' (``OPCW Guidelines''), for
Schedule 2A chemicals. These guidelines provide that declarations are
not required under Part VII of the Verification Annex for a chemical
mixture containing a Schedule 2A chemical, if the concentration of the
Schedule 2A chemical in the mixture is:
(1) 1% or less; or
(2) More than 1%, but less than or equal to 10%, provided that the
annual amount of the Schedule 2A chemical produced, processed or
consumed is less than the relevant verification threshold, which is ten
times the relevant declaration threshold.
This final rule accordingly amends part 713 of the CWCR by reducing
the concentration threshold level above which mixtures containing a
Schedule 2A chemical are counted toward the declaration and reporting
requirements described in the CWCR. This change makes the Schedule 2A
mixture concentration threshold consistent with the OPCW Guidelines,
subject to the constraint imposed by the 10% low concentration
threshold limit allowed under the CWCIA. Specifically, this final rule
amends the CWCR to replace the previous low concentration threshold for
mixtures containing a Schedule 2A chemical (i.e., a concentration of
30% or more, by volume or weight) with a low concentration threshold of
10% or more. This rule modifies only the declaration requirements under
the CWCR for mixtures containing Schedule 2A chemicals; it does not
modify the declaration requirements for any other chemicals or any
requirements applicable to the three Schedule 2A chemicals under either
the EAR or ITAR.
Amendments to Section 713.2 of the CWCR--Annual Declaration
Requirements for Plant Sites That Produce, Process or Consume Schedule
2 Chemicals in Excess of Specified Thresholds
Section 713.2 of the CWCR requires submission of a declaration from
a plant site if one or more plants at that site produced, processed or
consumed a Schedule 2 chemical during any of the three previous
calendar years, or anticipate doing so in the next calendar year, in
excess of the declaration threshold (i.e., the quantity specified for
that Schedule 2 chemical in Sec. 713.2(a)(1)(i)(A)(1) through (3) of
the CWCR). Since the low concentration threshold for Schedule 2A
chemicals now differs from the low concentration threshold for Schedule
2B chemicals, this rule revises the text of the current Sec.
713.2(a)(3)(i) and adds paragraphs (a)(3)(i)(A), specific to Schedule
2A chemicals, and (a)(3)(i)(B), specific to Schedule 2B chemicals.
Section 713.2(a)(3)(i)(A) reduces the low concentration threshold for
the declaration requirements that apply to mixtures containing a
Schedule 2A chemical from a concentration of 30% or more of the
Schedule 2A chemical by volume or weight, whichever formula yields the
lesser percentage, to a concentration of 10% or more of the Schedule 2A
chemical by volume or weight, whichever yields the lesser percentage.
To distinguish the low concentration threshold for Schedule 2B
chemicals, which remains unchanged, from the new low concentration
threshold for Schedule 2A chemicals, the low concentration threshold
for the declaration requirements that apply to the production,
processing or consumption of mixtures containing a Schedule 2B chemical
is separately described in Sec. 713.2(a)(3)(i)(B) of the CWCR and
remains at a concentration of 30% or more by volume or weight,
whichever formula yields the lesser percentage.
This rule also makes conforming changes to Sec. 713.2(a)(3)(ii)
and (iii) of the CWCR to reflect the change described above in the low
concentration threshold for mixtures containing Schedule 2A chemicals.
In addition, this rule adds Notes 1 through 4 to Sec. 713.2(a)(3).
Notes 1 and 2 provide examples of how to determine declaration and
reporting requirements for mixtures containing a Schedule 2A chemical.
Notes 3 and 4 contain updated versions of examples that were previously
included in Sec. 713.2(a)(3)(iii). These examples are included as
Notes because their purpose is to clarify the application of the
regulatory requirements described in Sec. 713.2(a)(3).
Amendments to Section 713.3 of the CWCR--Annual Declaration and
Reporting Requirements for Exports and Imports of Schedule 2 Chemicals
Section 713.3 of the CWCR requires the submission of declarations
and/or reports of exports and imports of Schedule 2 chemicals from
declared plant sites, undeclared plant sites, and trading companies,
along with any other persons subject to the CWCR, if such entities or
persons exported or imported a Schedule 2 chemical in a quantity above
the applicable threshold level, including amounts in mixtures above the
specified low concentration level. Since the low concentration
threshold for Schedule 2A chemicals now differs from the low
concentration threshold for Schedule 2B chemicals, this rule revises
the text of the current Sec. 713.3(b)(2) and adds paragraphs
(b)(2)(i)(A), specific to Schedule 2A chemicals, and (b)(2)(i)(B),
specific to Schedule 2B chemicals. Section 713.3(b)(2)(i)(A) reduces
the low concentration threshold for the declaration and reporting
requirements that apply to exports and imports of mixtures containing a
Schedule 2A chemical from a concentration of 30% or more of the
Schedule 2A chemical by volume or weight, whichever formula yields the
lesser percentage, to a concentration of 10% or more of the Schedule 2A
chemical by volume or weight, whichever formula yields the lesser
percentage. To distinguish the low concentration threshold for Schedule
2B chemicals, which remains
[[Page 42617]]
unchanged, from the new low concentration threshold for Schedule 2A
chemicals, the low concentration threshold for the declaration and
reporting requirements that apply to exports and imports of mixtures
containing a Schedule 2B chemical is separately described in Sec.
713.3(b)(2)(i)(B) of the CWCR and remains at a concentration of 30% or
more by volume or weight, whichever formula yields the lesser
percentage.
This final rule revises Notes 1 and 2 to Sec. 713.3(b)(2) and,
consistent with the amendments described OPCW guidelines, adds Sec.
713.3(b)(2)(ii) and (iii) to include, respectively, the information
that was previously contained in these two notes. As revised, the notes
provide examples of how to determine declaration and reporting
requirements for exports and imports of mixtures containing a Schedule
2A chemical. New Sec. 713.3(b)(2)(ii) clarifies how to count the
amount of a Schedule 2 chemical in a mixture (i.e., the quantity of
each Schedule 2A or Schedule 2B chemical in a mixture must be counted,
separately; however, the total weight of the mixture must not be
counted). New Sec. 713.3(b)(2)(iii) includes a general reference to
the low concentration threshold levels that are now described in Sec.
713.3(b)(2)(i). It also clarifies that the Schedule 2A and Schedule 2B
low concentration thresholds set forth in Sec. 713.3(b)(2)(i) apply
only for declaration and reporting purposes under the CWCR and not for
other purposes (e.g., determining whether the export of a mixture
requires an End-Use Certificate or a license per the relevant
provisions in the EAR or the ITAR).
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.
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. Although
this rule amends the CWCR to reduce the low concentration threshold for
mixtures containing Schedule 2A chemicals for purposes of the
applicable declaration and reporting requirements and, in so doing,
indirectly affects the burden imposed by certain Schedule 2A chemical
requirements in the EAR, BIS believes that the overall increases in
burdens associated with the following information collections will be
minimal:
OMB control number 0694-0091 (Chemical Weapons Convention
Declaration and Report Handbook and Forms & Chemical Weapons Convention
Regulations (CWCR))--this collection includes all Schedule 1, Schedule
2, Schedule 3, and unscheduled discrete organic chemical CWCR
declarations, reports, notifications, and on-site inspections of
chemical facilities and carries a total burden estimate of 15,815, of
which an estimated 762 hours pertain to the Schedule 2 (i.e., both
Schedule 2A and Schedule 2B) declaration regime and 12,117 pertain to
inspections across all (i.e., Schedule 1, Schedule 2, Schedule 3, and
unscheduled discrete organic chemical) facilities;
OMB control number 0694-0117 (Chemical Weapons Convention
Provisions of the Export Administration Regulations (EAR))--this
collection 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 53 hours.
BIS does not expect the burden hours associated with these
collections to change. This rule changes the declaration requirements
only for mixtures containing between 10 and 30 percent of three
chemicals with extremely limited commercial applications. Two of the
three chemicals at issue (i.e., the chemical Amiton: 0,0 Diethyl S-[2-
(diethylamino) ethyl] phosphorothiolate and corresponding alkylated or
protonated salts and the chemical BZ: 3- Quinuclidinyl benzilate) are
defense articles subject to the export licensing jurisdiction of the
Department of State under the ITAR. Manufacturers, exporters, and
temporary importers of these items are therefore required to register
under the ITAR (22 CFR122.1) and are subject to recordkeeping
obligations under the ITAR including maintenance of records concerning
the manufacture, acquisition, and disposition of defense articles (22
CFR 122.5). This final rule does not impose a significant additional
burden on companies that produce or export Amiton and BZ because the
companies are already required to maintain sufficient records to comply
with their recordkeeping obligations under ITAR. The third chemical
(the chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)- 1-
propene) is a byproduct of fluoromonomer production. Producers of
fluoromonomers are already subject to the CWC declaration and
inspection requirements for unscheduled discrete organic chemicals,
which include regular, thorough site inspections under the procedures
set out in Part IX of the Verification Annex to the CWC and implemented
in part 715 of the CWCR. Consequently, BIS anticipates that this rule
will impose few, if any, new reporting obligations on any U.S. company.
These changes to the burden hours are within the bounds of the existing
estimates.
Additional information regarding these collections of information,
including all background materials, can be found at https://www.reginfo.gov/public/do/PRAMain and using the search function to
enter either the title of the collection or the OMB Control Number.
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) (APA), requiring notice of proposed rulemaking, the opportunity
for public participation and a delay in effective date, are waived for
good cause as unnecessary and contrary to the public interest (see 5
U.S.C. 553(b)(B)). A delay of this rulemaking to provide an opportunity
for public comment is unnecessary because this rule implements, to the
extent permitted by the CWCIA, a treaty obligation. Specifically,
paragraph 5 of Part VII of the CWC Verification Annex provides for
declarations to be provided in accordance with guidelines adopted by
the CSP regarding low-concentration mixtures of Schedule 2 chemicals.
CSP Decision C-14/DEC.4 adopted such guidelines, which provide a low
concentration limit of 1% for Schedule 2A chemicals, or 10% provided
that the annual amount produced of the Schedule 2A chemical does not
exceed certain specified thresholds. The decision adopting the
guidelines further called for the States Parties, in accordance with
their domestic legal
[[Page 42618]]
processes, to implement the guidelines as soon as practicable.
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. In light of U.S.
obligations under the CWC, this rule serves the public interest by
implementing without further delay the OPCW guidelines under U.S.
domestic law.
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 713
Chemicals, Exports, Foreign trade, Imports, Reporting and
recordkeeping requirements.
For the reasons stated in the preamble, part 713 of the Chemical
Weapons Convention Regulations (15 CFR parts 710-722) is amended as
follows:
PART 713--ACTIVITIES INVOLVING SCHEDULE 2 CHEMICALS
0
1. The authority citation for 15 CFR part 713 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
2. Amend Sec. 713.2 by revising paragraph (a)(3) to read as follows:
Sec. 713.2 Annual declaration requirements for plant sites that
produce, process or consume Schedule 2 chemicals in excess of specified
thresholds.
(a) * * *
(3) Mixtures containing a Schedule 2 chemical--(i) Mixtures that
must be counted. When determining the total quantity of a Schedule 2
chemical produced, processed or consumed at a plant on your plant site,
you must count the quantity of each Schedule 2 chemical in a mixture,
in the following circumstances:
(A) Schedule 2A chemicals in mixtures. The concentration of each
Schedule 2A chemical in the mixture is 10% or more by volume or weight,
whichever yields the lesser percentage;
(B) Schedule 2B chemicals in mixtures. The concentration of each
Schedule 2B chemical in the mixture is 30% or more by volume or weight,
whichever yields the lesser percentage.
(ii) How to count the quantity of each Schedule 2 chemical in a
mixture. You must count, separately, the quantity of each Schedule 2A
or Schedule 2B chemical in a mixture when determining the total
quantity of a Schedule 2 chemical produced, processed or consumed at a
plant on your plant site. Do not count the total weight of a mixture.
(iii) Determining declaration requirements for production,
processing and consumption. If the total quantity of a Schedule 2
chemical produced, processed or consumed at a plant on your plant site,
including mixtures that contain 10% or more concentration of a Schedule
2A chemical or 30% or more concentration of a Schedule 2B chemical,
exceeds the applicable declaration threshold set forth in paragraphs
(a)(1)(i)(A)(1) through (3) of this section, you have a declaration
requirement and must separately declare each Schedule 2A or Schedule 2B
chemical.
Note 1 to Sec. 713.2(a)(3)--Example: If, during the past
calendar year, a plant on your plant site produced, processed, or
consumed a mixture containing 130 kilograms of PFIB with a
concentration of 12%, the total amount of PFIB produced, processed,
or consumed at that plant for CWCR purposes would be 130 kilograms,
which exceeds the declaration threshold of 100 kilograms for that
Schedule 2A chemical. Consequently, you must declare 130 kilograms
of production, processing, or consumption of PFIB at that plant site
during the past calendar year.
Note 2 to Sec. 713.2(a)(3)--Example: If, during the past
calendar year, a plant on your plant site produced, processed, or
consumed a mixture containing 130 kilograms of PFIB with a
concentration of 8%, the total amount of PFIB produced, processed,
or consumed at that plant for CWCR purposes would be 0 kilograms,
which would not trigger a declaration requirement. This outcome is
based on the fact that the concentration of PFIB in the mixture is
less than 10% and, for CWCR purposes would not have to be
``counted.''
Note 3 to Sec. 713.2(a)(3)--Example: If, during the past
calendar year, a plant on your plant site produced a mixture
containing 300 kilograms of thiodiglycol with a concentration of 32%
and also produced 800 kilograms of pure thiodiglycol, the total
amount of thiodiglycol produced at that plant for CWCR purposes
would be 1,100 kilograms, which exceeds the declaration threshold of
1 metric ton for that Schedule 2B chemical. Consequently, you must
declare production of thiodiglycol at that plant site during the
past calendar year.
Note 4 to Sec. 713.2(a)(3)--Example: If, during the past
calendar year, a plant on your plant site processed a mixture
containing 300 kilograms of thiodiglycol with a concentration of 25%
and also processed 800 kilograms of pure thiodiglycol, the total
amount of thiodiglycol processed at that plant for CWCR purposes
would be 800 kilograms and would not trigger a declaration
requirement. This outcome is based on the fact that the
concentration of thiodiglycol in the mixture is less than 30% and,
therefore, would not have to be ``counted'' and added to the 800
kilograms of pure thiodiglycol processed at that plant during the
past calendar year.
* * * * *
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3. Amend Sec. 713.3 by revising paragraph (b)(2) to read as follows:
Sec. 713.3 Annual declaration and reporting requirements for exports
and imports of Schedule 2 chemicals.
* * * * *
(b) * * *
(2) Mixtures containing a Schedule 2 chemical--(i) Mixtures that
must be counted. The quantity of each Schedule 2 chemical contained in
a mixture must be counted for the declaration or reporting of an export
or import, in the following circumstances:
(A) Schedule 2A chemicals in mixtures. The concentration of each
Schedule 2A chemical in the mixture is 10% or more by volume or weight,
whichever yields the lesser percentage;
(B) Schedule 2B chemicals in mixtures. The concentration of each
Schedule 2B chemical in the mixture is 30% or more by volume or weight,
whichever yields the lesser percentage.
(ii) How to count the quantity of each Schedule 2 chemical in a
mixture. You must count, separately, the quantity of each Schedule 2A
or Schedule 2B chemical in a mixture when determining the total
quantity of a Schedule 2 chemical that was exported from or imported to
a declared plant site, or individually exported or imported, above the
applicable threshold set forth in paragraphs (b)(1)(i) through (iii) of
this section. Do not count the total weight of a mixture.
(iii) Mixture concentration thresholds apply only for declaration
and reporting purposes. The concentration thresholds for Schedule 2A
and Schedule 2B chemical mixtures set forth in paragraph (b)(2)(i) of
this section apply only for the declaration and reporting purposes
described in the CWCR. These thresholds do not apply for purposes of
determining whether the export of your mixture to a non-State Party
requires an End-Use Certificate. Nor do they apply for purposes of
determining whether you need to obtain an export license from BIS (see
Sec. 742.2, Sec. 742.18 and
[[Page 42619]]
Sec. 745.2 of the Export Administration Regulations (15 CFR parts 730
through 774)) or from the Department of State (see the International
Traffic in Arms Regulations (22 CFR parts 120 through 130)).
Note 1 to Sec. 713.3(b)(2)--Example: If, during the past
calendar year, your plant site exported or imported a mixture
containing 3 kilograms of Amiton with a concentration of 12%, the
total amount of Amiton exported or imported for CWCR purposes is 3
kilograms, which exceeds the declaration threshold of 1 kilogram for
that Schedule 2A chemical. Consequently, you must declare 3
kilograms of export or import at that plant site during the past
calendar year.
Note 2 to Sec. 713.2(b)(2)--Example: If, during the past
calendar year, your plant site exported or imported a mixture
containing 3 kilograms of Amiton with a concentration of 8%, the
total amount of Amiton exported or imported for CWCR purposes would
be 0 kilograms and would not trigger a declaration requirement. This
outcome is based on the fact that the concentration of Amiton in the
mixture is less than 10% and, therefore, would not have to be
``counted.''
* * * * *
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2023-13736 Filed 6-30-23; 8:45 am]
BILLING CODE 3510-33-P
