BIS Publishes Marine Toxins Final Rule

The DOC’s Bureau of Industry and Security published a final rule in Tuesday’s (available on line today) Federal Register (88 FR 2507-2517) for “Implementation of Australia Group Decisions From 2021 and 2022 Virtual Meetings: Controls on Marine Toxins, Plant Pathogens and Biological Equipment”. The rule makes a number of technical changes to the DOC’s Export Control Lists including adding four naturally occurring, dual-use marine toxins (specifically, brevetoxins, gonyautoxins, nodularins and palytoxin) and removing cholera toxin, thus the ‘Marine toxins’ of the title.

I have been following this rulemaking to see if it makes significant definitional changes in the biotoxins rules to reflect the fact (from rulemaking abstract) that they “are now capable of being more easily isolated and purified due to novel synthesis methods and equipment”. This would make these biotoxins more like chemical weapons and thus potentially coverable under the Chemical Facility Anti-Terrorism Standards (CFATS) program. This final rule does not do that.

It does, however, make a minor change to the DOC regulations dealing with chemical weapon precursors. It makes a change to Technical Note 3 to ECCN (Export Classification Control Number) 1C350 (pg 960), changing the first sentence to read:

“Precursor chemicals in ECCN 1C350 are listed by name, Chemical Abstract Service (CAS) number and CWC Schedule (where applicable). Precursor chemicals of the same structural formula (e.g., hydrates, isotopically-labeled forms or all possible stereoisomers [added language]) are controlled by ECCN 1C350, regardless of name or CAS number.”

This does not technically change the various Chemical Weapons Convention lists of chemical weapon precursors that DHS used as a basis for some listings in the DHS chemicals of interest list (COI). This export control list change is almost certainly not sufficient to suggest a similar change in the COI list.