BIS Publishes Final Rule Adding Chemicals to CWC Schedule 1 List

Today the DOC’s Bureau of Industry and Security (BIS) published a final rule in the Federal Register (86 FR 936-944) on “Additions to Schedule 1(A) of the Annex on Chemicals to the Chemical Weapons Convention”. This rule amends 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 Chemical Weapons Convention (CWC).

The rule adds one new chemical and three families of chemicals to the Schedule 1 list of toxic chemicals regulated under the CWC. The new chemical is Methyl(bis(diethylamino)methylene)phosphonamidofluoridate (CAS No. 2387496-14-0). The three new families of chemicals are described here, here, and here.

Commentary

This will almost certainly not have any major effect on chemical manufacturing in the United States. Any manufacturing or use of these chemicals will be very limited. I am mentioning this rulemaking here because there are minor implications for the Chemical Facility Anti-Terrorism Standards (CFATS) program. All of the other CWC Schedule 1 chemicals are listed in the Appendix A, 6 CFR Part 27, list of DHS chemicals of interest as theft/diversion chemical weapons security issues and require Top Screen reporting inventories of very low quantities of these chemicals. Today’s addition of these chemicals to Schedule 1 should, in turn, drive their addition to Appendix A. There is no formal mechanism for doing so.

Fortuitously, CISA is starting the undertaking of a rulemaking that would make separate modifications to Appendix A. It is early enough in that rulemaking process where it would be appropriate to suggest that there should be included in that rulemaking a methodology for making updates to Appendix A to reflect additions of chemicals to Schedule 1 of the CWC.

Specifically, I would like to suggest that that rulemaking be expanded to include:

• Adding the one new chemical and three families of chemicals listed in today’s BIS final rule to the DHS list of COI, and

• Adding provisions to Appendix A requiring the initiation of an interim final rule, followed (after publication and comment) in 180-days by a final rule adding any future additions to Schedule 1 of the CWC are finalized by the BIS.

A copy of this blog post will be submitted as a comment to the CISA Appendix A advanced notice of proposed rulemaking.