27 October 2008
[Federal Register: October 27, 2008 (Volume 73, Number 208)]
[Notices]
[Page 63681-63682]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc08-37]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket No. 0810071328-81331-01]
Impact of Implementation of the Chemical Weapons Convention on
Commercial Activities Involving ``Schedule 1'' Chemicals Through
Calendar Year 2008
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Notice of inquiry.
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SUMMARY: The Bureau of Industry and Security (BIS) is seeking public
comments on the impact that implementation of the Chemical Weapons
Convention, through the Chemical Weapons Convention Implementation Act
and the Chemical Weapons Convention Regulations, has had on commercial
activities involving ``Schedule 1'' chemicals during calendar year
2008. The purpose of this notice of inquiry is to collect information
to assist BIS in its preparation of the annual certification to the
Congress, which is required under Condition 9 of Senate Resolution 75,
April 24, 1997, in which the Senate gave its advice and consent to the
ratification of the Chemical Weapons Convention.
DATES: Comments must be received by November 26, 2008.
ADDRESSES: You may submit comments by any of the following methods:
E-mail: wfisher@bis.doc.gov. Include the phrase ``Schedule
1 Notice of Inquiry'' in the subject line;
Fax: (202) 482-3355 (Attn: Willard Fisher);
Mail or Hand Delivery/Courier: Willard Fisher, U.S.
Department of Commerce, Bureau of Industry and Security, Regulatory
Policy Division, 14th Street & Pennsylvania Avenue, NW., Room 2705,
Washington, DC 20230.
FOR FURTHER INFORMATION CONTACT: For questions on the Chemical Weapons
Convention requirements for ``Schedule 1'' chemicals, contact James
Truske, Treaty Compliance Division, Office of Nonproliferation and
Treaty Compliance, Bureau of Industry and Security, U.S. Department of
Commerce, Phone: (202) 482-1001. For questions on the submission of
comments, contact Willard Fisher, Regulatory Policy Division, Office of
Exporter Services, Bureau of Industry and Security, U.S. Department of
Commerce, Phone: (202) 482-2440.
SUPPLEMENTARY INFORMATION:
Background
In providing its advice and consent to the ratification of the
Convention on the Prohibition of the Development, Production,
Stockpiling, and Use of Chemical Weapons and Their Destruction,
commonly called the Chemical Weapons Convention (CWC) (the Convention),
the Senate included, in Senate Resolution 75 (S. Res. 75, April 24,
1997), several conditions to its ratification. Condition 9, titled
``Protection of Advanced Biotechnology,'' calls for the President to
certify to Congress on an annual basis that ``the legitimate commercial
activities and interests of chemical, biotechnology, and pharmaceutical
firms in the United States are not being significantly harmed by the
limitations of the Convention on access to, and production of, those
chemicals and toxins listed in Schedule 1.'' On July 8, 2004, President
Bush, by Executive Order 13346, delegated his authority to make the
annual certification to the Secretary of Commerce.
The CWC is an international arms control treaty that contains
certain verification provisions. In order to implement these
verification provisions, the CWC established the Organization for the
Prohibition of Chemical Weapons (OPCW). The CWC imposes certain
obligations on countries that have ratified the Convention (i.e.,
States Parties), among which are the enactment of legislation to
prohibit the production, storage, and use of chemical weapons, and the
establishment of a National Authority to serve as the national focal
point for effective liaison with the OPCW and other States Parties for
the purpose of achieving the object and purpose of the Convention and
the implementation of its provisions. The CWC also requires each State
Party to implement a comprehensive data declaration and inspection
regime to provide transparency and to verify that both the public and
private sectors of the State Party are not engaged in activities
prohibited under the CWC.
``Schedule 1'' chemicals consist of those toxic chemicals and
precursors set forth in the CWC ``Annex on Chemicals'' and in
Supplement No. 1 to part 712 of the Chemical Weapons Convention
Regulations (CWCR) (15 CFR parts 710-722). The CWC identified these
toxic chemicals and
[[Page 63682]]
precursors as posing a high risk to the object and purpose of the
Convention.
The CWC restricts the production of ``Schedule 1'' chemicals for
protective purposes to two facilities per State Party. The CWC Article-
by-Article Analysis submitted to the Senate in Treaty Doc. 103-21
defined the term ``protective purposes'' to mean ``used for determining
the adequacy of defense equipment and measures.'' Consistent with this
definition, U.S. implementation, as authorized via Presidential
Decision Directive (PDD) 70, December 17, 1999, assigned the
responsibility to operate these two facilities to the Department of
Defense (DOD), thereby precluding commercial production of ``Schedule
1'' chemicals for protective purposes in the United States. This action
did not establish any limitations on ``Schedule 1'' chemical activities
that are not prohibited by the CWC. However, the Department of Defense
maintains strict controls on ``Schedule 1'' chemicals produced at its
facilities in order to ensure the accountability and proper use of such
chemicals, consistent with the object and purpose of the Convention.
The provisions of the CWC that affect commercial activities
involving ``Schedule 1'' chemicals are implemented in the CWCR (see 15
CFR 712) and in the Export Administration Regulations (EAR) (see 15 CFR
742.18 and 15 CFR 745), both of which are administered by the Bureau of
Industry and Security (BIS). Pursuant to CWC requirements, the CWCR
restrict commercial production of ``Schedule 1'' chemicals to research,
medical, or pharmaceutical purposes. The CWCR also contain other
requirements and prohibitions that apply to ``Schedule 1'' chemicals
and/or ``Schedule 1'' facilities. Specifically, the CWCR:
(1) Prohibit the import of ``Schedule 1'' chemicals from States not
Party to the Convention (15 CFR 712.2(b));
(2) Require annual declarations by certain facilities engaged in
the production of ``Schedule 1'' chemicals in excess of 100 grams
aggregate per calendar year (i.e., declared ``Schedule 1'' facilities)
for purposes not prohibited by the Convention (15 CFR 712.5(a)(1) and
(a)(2));
(3) Require 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 Organization for the Prohibition
of Chemical Weapons (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 of all
imports and exports of ``Schedule 1'' chemicals to, or from, other
States Parties to the Convention (15 CFR 712.6, 742.18(a)(1) and
745.1); and
(7) Prohibit the export of ``Schedule 1'' chemicals to States not
Party to the Convention (15 CFR 742.18(a)(1) and (b)(1)(ii)).
Request for Comments
In order to assist in determining whether the legitimate commercial
activities and interests of chemical, biotechnology, and pharmaceutical
firms in the United States are significantly harmed by the limitations
of the Convention on access to, and production of, ``Schedule 1''
chemicals as described in this notice, BIS is seeking public comments
on any effects that implementation of the Chemical Weapons Convention,
through the Chemical Weapons Convention Implementation Act and the
Chemical Weapons Convention Regulations, has had on commercial
activities involving ``Schedule 1'' chemicals during calendar year
2008. To allow BIS to properly evaluate the significance of any harm to
commercial activities involving ``Schedule 1'' chemicals, public
comments submitted in response to this notice of inquiry should include
both a quantitative and qualitative assessment of the impact of the CWC
on such activities.
Submission of Comments
All comments must be submitted to one of the addresses indicated in
this notice. The Department requires that all comments be submitted in
written form.
The Department encourages interested persons who wish to comment to
do so at the earliest possible time. The period for submission of
comments will close on November 26, 2008. The Department will consider
all comments received before the close of the comment period. Comments
received after the end of the comment period will be considered if
possible, but their consideration cannot be assured. The Department
will not accept comments accompanied by a request that a part or all of
the material be treated confidentially because of its business
proprietary nature or for any other reason. The Department will return
such comments and materials to the persons submitting the comments and
will not consider them. All comments submitted in response to this
notice will be a matter of public record and will be available for
public inspection and copying.
The Office of Administration, Bureau of Industry and Security, U.S.
Department of Commerce, displays public comments on the BIS Freedom of
Information Act (FOIA) Web site at http://www.bis.doc.gov/foia. This
office does not maintain a separate public inspection facility. If you
have technical difficulties accessing this Web site, please call BIS's
Office of Administration, at (202) 482-1093, for assistance.
Dated: October 21, 2008.
Christopher R. Wall,
Assistant Secretary for Export Administration.
[FR Doc. E8-25561 Filed 10-24-08; 8:45 am]
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