Wednesday, July 13, 2011

BIS Considering Amending Concentration Limits for CWC Reporting

Today the Bureau of Industry and Security (BIS) of the Department of Commerce published two notices in the Federal Register (76 FR 41366-41370 and 41372-41373) relating to possible changes to the Chemical Weapons Convention Regulations (15 CFR Parts 713 and 716). BIS is requesting public comment on possible impacts that changes to the mixture concentration thresholds for CWC reporting requirements.

The first notice deals with Schedule 2A (toxic precursor) chemicals under the CWC and the second notice deals with Schedule 3 (other organic chemicals of CWC concern) chemicals. The first of these notices will be of most interest to the chemical security community because DHS has used the list of Schedule 2 chemicals as one of the documents upon which it based the list of DHS Chemicals of Interest (COI), Appendix A to 6 CFR part 27.

Changes to Chemical Mixture Rules

Currently the CWCR exempts Schedule 2A chemicals in mixtures where they constitute less than 30% by volume or weight of the mixture from being counted in the determination of whether or not the facility meets the verification threshold reporting requirements for the CWCR. In many ways this determination was the model upon which DHS based their development of the CFATS Top Screen requirements.

The proposal that BIS is considering is a lowering of the concentration that would trigger the reporting requirements and making it a two tiered concentration rule. The first tier would exempt any Schedule 2A chemical “produced, processed, or consumed at one or more plants on a plant site” if its concentration in a mixture was less than 1%. The second tier would cover mixtures more than 1% but less than or equal to 10% as long as “the annual amount of the Schedule 2A chemical produced, processed, or consumed is less than the relevant verification threshold” (76 FR 41366). Not specifically mentioned in the notice is the fact that the proposal would add all mixtures containing between 10 and 30% of Schedule 2A chemicals to the list of covered mixtures.

This change would almost certainly expand the number of facilities in the US that would be covered by the international inspection requirements of the CWC. Additionally, if these changes are adopted in the CWCR, DHS might find it necessary to revisit some of the concentration requirements for these chemicals that are listed in Appendix A.

Similar types of changes would be made by second notice for Schedule 3 chemicals. Combined the changes in the two notices would make the US declaration requirements consistent with the international agreements adopted by the Organization for the Prohibition of Chemical Weapons (OPCW).

Congressional Action Required

It is interesting that this notice is not an advanced notice of proposed rulemaking. That is because making these changes to the CWCR would require legislative changes to be made to the Chemical Weapons Convention Implementation Act (CWCIA; (22 U.S.C. 6701 et seq.). The CWCIA sets a lower concentration limit of 10%. BIS would need the impact information that it is requesting in these two notices to be able to successfully get Congress to amend that act.

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