Annual Look at CWC Effects on Industry

Today the DOC’s Industry and Security Bureau (BIS) published their annual notice in the Federal Register (78 FR 75910-75911) requesting information about the effects of the enforcement of the Chemical Weapons Convention (CWC) on ‘legitimate’ commercial activity.

When Congress approved the adoption of the CWC they required that the President provide an annual report on the effects of the implementation of rules on the use and production of ‘Schedule 1’ chemicals. Schedule 1 chemicals are those toxic chemicals (and their immediate precursors) that have been or can be used as chemical weapons (interestingly chlorine gas is not included). Since some of these chemicals have legitimate uses outside of the chemical weapons realms Congress was concerned about the effects of the CWC provisions on those legitimate uses.

Every year the BIS publishes this notice in the Federal Register soliciting comments from industry so that they can prepare the President’s report to Congress. Comments may be emailed to BIS (willard.fisher@bis.doc.gov) and should be submitted by January 13^th, 2014. 

Updating List of Schedule 1 CWC Chemicals?

Today the Commerce Departments Industry and Security Bureau (which among other things deals with the implementation and enforcement of the Chemical Weapons Convention (CWC) in the United States) posted a notice in today’s Federal Register (76 FR 76935-76937) concerning the impact of implementing the CWC. This is pretty much an annual event asking the regulated community to provide input on how the CWC provisions on Schedule 1 chemicals (actual chemical warfare agents) impacts their businesses. This information is used to submit the ISB’s annual report to Congress.

This year’s notice also includes two additional requests for information about potential changes to the CWC program. These changes may expand the number of companies impacted by the CWC enforcement process. They may also result in eventual changes to the list of DHS Chemicals of Interest (COI) used to determine which facilities are covered under CFATS.

SALTS of Schedule 1 Chemicals

It seems that the Organization for the Prohibition of Chemical Weapons (OPCW) is considering adding some of the salts of certain Schedule 1 chemicals to that list of chemicals. The notice specifically addresses saxitoxin and nitrogen mustards, but does not limit the OPCW proposed action to those chemicals. Any company that makes salts of any of the Schedule 1 chemicals needs to take a close look at this notice.

Since DHS used the list of Schedule 1 chemicals as one of the sources for determining which chemicals could trigger the requirements of the CFATS program (See Appendix A, 6 CFR 27) any changes to that list could impact that list. While ISCD has supposedly been working on an update for the COI list for a couple of years now, one might expect that changes to the CWC list might hurry changes to Appendix A.

Chemical Intermediaries

While I wouldn’t expect that there are many non-DOD facilities that are producing these salts of Schedule 1 chemicals the second new part of this notice may have more widespread impacts. According to the notice in 2005 the OPCW modified the definition of production of Schedule 1 chemicals to include “intermediates, by-products, or waste products that are produced and consumed within a defined chemical manufacturing sequence” where those chemicals existed for a long enough time and in a state where they could possibly be chemically isolated. Recently a pharmaceutical facility in Denmark was identified as producing such intermediates. OPCW is still in the process of determining if this makes this particular facility a Chemical Weapons Production Facility (certainly a hokey pokey no no).

So this notice is formally asking chemical manufacturing facilities in the United States if there are any facilities with “similar situations of so-called captive use of a 'Schedule 1' chemical [that] may exist in the United States”?

Comments

There is a thirty day comment/response period on this notice with comments required to be filed by January 9^th, 2012. Comments may be submitted by email to Willard Fisher (wfisher@bis.doc.gov).