Chemical Weapons Convention Interim Regulations

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January 1, 2003

On December 30, 1999, the Bureau of Export Administration ("BXA") published the interim rule establishing the Chemical Weapons Convention Regulations ("the regulations"). The United States ratified the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction ("Chemical Weapons Convention") on April 25, 1997. The Chemical Weapons Convention is an arms control treaty banning the development, production, stockpiling or use of chemical weapons. State parties are prohibited from assisting or encouraging anyone to engage in a proscribed activity with respect to chemical weapons.

The interim regulations implement the provisions of the Chemical Weapons Convention that affect United States industries and other U.S. persons subject to the Convention. The Regulations require owners, operators, or senior management officials of U.S. "declared" facilities, that produce, process or consume certain chemicals in quantities that exceed specified thresholds, to submit various declarations to the BXA. (It should be noted that "undeclared" facilities, trading companies, and other persons subject to the Convention have certain reporting requirements as well.) In addition, the regulations set forth the procedures for on-site verifications of U.S. facilities by the Chemical Weapons Convention inspectors. The regulations are effective as of December 30, 1999, and will greatly impact the U.S. chemical industry. The following sets forth a brief summary of the interim regulations.

1. Chemicals Subject to the Regulations
Generally, the Regulations apply to certain scheduled chemicals and unscheduled discrete organic chemicals ("UDOC's"). These chemicals, which have legitimate medical, commercial and industrial uses, have been targeted by the Chemicals Weapons Convention because they may also be used as chemical weapon agents or as chemical weapon precursors. The chemicals that are designated under Schedule 1, Schedule 2 or Schedule 3 consist of toxic chemicals, groups of toxic chemicals or precursors as follows-

 

• Schedule 1 Chemicals: These chemicals have little or no use in industrial and agricultural industries, but may have limited use for research, pharmaceutical, medical public health, or protective purposes. Examples include nerve agents, such as Sarin, and blister agents, such as Mustard and Lewisite.
   
• Schedule 2 Chemicals: These chemicals may be used in the production of chemical weapons; however, they may also have legitimate applications in the following areas: flame retardant additives and research; dye and photographic industries; medical and pharmaceutical preparations; metal plating preparations; epoxy resins; and, insecticides, herbicides, fungicides, defoliants and rodenticides.
   
• Schedule 3 Chemicals: These chemicals may be used in the production of chemical weapons; however they have legitimate uses in areas such as: (1) the production of resins, plastics, pharmaceuticals, pesticides, batteries, cyanic acid, toiletries (including perfumes and scents), organic phosphate esters (e.g., hydraulic fluids, flame retardants, surfactants, and sequestering agents); and, (2) leather tannery and finishing supplies. Examples include chemicals used to manufacture paint thinners, cleaners, and lubricants.

The category of Unscheduled Discrete Organic Chemicals ("UDOCS") includes all compounds of carbon (except for its oxides, sulfides, and metal carbonates, that are identifiable by chemical name, by structural formula, and by Chemical Abstract Service registry number, if assigned. They are used in a wide variety of commercial industries, and include acetone, benzoyl peroxide and propylene glycol.

2. Reporting Requirements under the Regulations
Generally, U.S. facilities, plant sites, trading companies, and persons subject to the Convention are required to submit certain declarations and reports to the BXA. In addition, U.S. facilities that are considered "declared facilities" must submit additional declarations and reports to the BXA. "Declared facilities" are those that produce the scheduled chemicals or UDOCs in excess of specified thresholds. The following reports are required by declared and undeclared facilities, trading companies and persons subject to the Convention are set forth below. Please note that the entities responsible for submitting the report/declaration include undeclared facilities, trading companies, and persons subject to the Convention, unless otherwise specified as the responsibility of declared facilities only. The declarations, reports and scheduled deadlines are as follows-
 

Scheduled Chemical or UDOCs	Declaration/Report	Deadline for Submission to BXA
Schedule 1 Chemicals	Initial Declaration (Declared Facility only)	March 30, 2000
	Annual Declaration on Past Activities (Declared Facility only);	March 30, 2000
	Annual Declaration on Anticipated Activities;	August 3, 2000
	Declaration of Additionally Planned Activities; Annual Report on Exports/Imports; and,	March 30, 2000
	Advance Notification of any Export/Import from another State Party	45 days in advance
Schedule 2 Chemicals	Declaration on Past Production for Chemical Weapons Purposes (going back to Jan. 1, 1946)*;	March 30, 2000
	Initial Declaration (Declared Facility only);	March 30, 2000
	Annual Declaration on Past Activities (Declared Facility only);	March 30, 2000
	Annual Declaration on Anticipated Activities;	September 3, 2000
	Declaration of Additionally Planned Activities;	15 days in advance
	Initial Report on Export/Imports; and,	March 30, 2000
	Annual Report on Exports/Imports;	March 30, 2000
Schedule 3 Chemicals	Declaration on Past Production for Chemical Weapons Purposes (going back to Jan. 1, 1946);	March 30, 2000
	Initial Declaration (Declared Facility only);	March 30, 2000
	Annual Declaration on Past Activities (Declared Facility only);	March 30, 2000
	Annual Declaration on Anticipated Activities;	September 3, 2000
	Declaration on Additionally Planned Activities;	15 days in advance
	Initial Report on Export/Imports; and	March 30, 2000
	Annual Report on Exports/Imports	March 30, 2000
UDOCs	Initial Declaration (Declared Facility only);	March 30, 2000
	Annual Declaration on Past Activities (Declared Facility only)	March 30, 2000

*Please note that we have been informed by the BXA that the Declaration on Past Production for Chemical Weapons Purposes is required where U.S. facilities have knowledge that a scheduled chemical was produced for chemical weapons purposes. If U.S. facilities have such knowledge, information must be provided going back to January 1, 1946.

3. On-Site Inspection Requirements
The regulations also establish procedures for initial and routine on-site inspections conducted by the Convention's implementing body, the Organization for the Prohibition of Chemical Weapons Technical Secretariat ("OPCW"). "Host Teams" from the Department of Commerce will accompany and escort the inspectors during inspections. It should be noted that only declared facilities are subject to initial and routine on-site inspections by the OPCW.

4. Requirements Relating to Imports and Exports of Scheduled Chemicals and UDOC's
The regulations implement several new requirements with respect to the importation and exportation of scheduled chemicals and UDOC's. For example, the regulations prohibit the importation of any Schedule 1 chemical unless: (1) the import is from a State Party; (2) the import is for research, medical, pharmaceutical, or protective purposes; (3) the import is in types and quantities strictly limited to those that can be justified for such purposes; and, (4) the BXA has been notified BXA 45 days prior to the importation. With respect to exports of any quantity of Schedule 1 chemicals, the regulations require that the BXA be notified 45 days in advance of the export. Upon receipt of the notification, the BXA will inform the exporter of the earliest date the shipment may occur. (Please note that this requirement is in addition to any applicable export license requirements under the EAR.) Further, the regulations prohibit the importation of Schedule 2 chemicals from non-state parties on or after April 29, 2000.

As the new interim regulations are intricate and quite complex, please do not hesitate to contact us should you have any questions with respect to your responsibilities under the Chemical Weapons Convention.