I

103D CONGRESS

2D SESSION H. R. 4849

To implement the obligations of the United States under the Convention

on the Prohibition of the Development, Production, Stockpiling and Use

of Chemical Weapons and on Their Destruction, known as the ‘‘Chemical

Weapons Convention’’ and opened for signature and signed by the United

States on January 13, 1993.

IN THE HOUSE OF REPRESENTATIVES

JULY 28, 1994

Mr. HAMILTON (by request)(for himself, Mr. GILMAN, Mr. LANTOS, Mr. BERMAN, Mr. SWIFT, and Mr. OXLEY) introduced the following bill; which

was referred jointly to the Committees on Foreign Affairs, the Judiciary,

and Energy and Commerce

A BILL

To implement the obligations of the United States under

the Convention on the Prohibition of the Development,

Production, Stockpiling and Use of Chemical Weapons

and on Their Destruction, known as the ‘‘Chemical

Weapons Convention’’ and opened for signature and

signed by the United States on January 13, 1993.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Chemical Weapons

5 Convention Implementation Act of 1994’’.
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1 SEC. 2. TABLE OF CONTENTS.

2 The table of contents for this Act is as follows—

Sec. 1. Short title.

Sec. 2. Table of contents.

Sec. 3. Congressional findings.

Sec. 4. Congressional declarations.

Sec. 5. Definitions.

Sec. 6. Severability.

TITLE I—NATIONAL AUTHORITY

Sec. 101. Establishment.

TITLE II—APPLICATION OF CONVENTION PROHIBITIONS TO

NATURAL AND LEGAL PERSONS

Sec. 201. Criminal provisions.

Sec. 202. Effective date.

Sec. 203. Restrictions on scheduled chemicals.

TITLE III—DECLARATIONS BY CHEMICAL INDUSTRY

Sec. 301. Reporting of information.

Sec. 302. Disclosure of information or materials.

Sec. 303. Prohibited acts.

TITLE IV—INSPECTIONS

Sec. 401. Inspections of chemical industry.

Sec. 402. Other inspections and lead agency.

Sec. 403. Prohibited acts.

Sec. 404. Penalties.

Sec. 405. Specific enforcement.

Sec. 406. Legal proceedings.

Sec. 407. Authority.

3 SEC. 3. CONGRESSIONAL FINDINGS.

4 The Congress makes the following findings:

5 (1) Chemical weapons pose a significant threat

6 to the national security of the United States and are

7 a scourge to humankind.

8 (2) The Chemical Weapons Convention is the

9 best means of ensuring the nonproliferation of chem10 ical weapons and their eventual destruction and for11 swearing by all nations.
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1 (3) The verification procedures contained in the

2 Chemical Weapons Convention and the faithful ad3 herence of nations to them, including the United

4 States, are crucial to the success of the Convention.

5 (4) The declarations and inspections required

6 by the Chemical Weapons Convention are essential

7 for the effectiveness of the verification regime.

8 SEC. 4. CONGRESSIONAL DECLARATIONS.

9 The Congress makes the following declarations:

10 (1) It shall be the policy of the United States

11 to cooperate with other States parties to the Chemi12 cal Weapons Convention and afford the appropriate

13 form of legal assistance to facilitate the implementa14 tion of the prohibitions contained in title II of this

15 Act.

16 (2) It shall be the policy of the United States,

17 during the implementation of its obligations under

18 the Chemical Weapons Convention, to assign the

19 highest priority to ensuring the safety of people and

20 to protecting the environment, and to cooperate as

21 appropriate with other States parties to the Conven22 tion in this regard.

23 (3) It shall be the policy of the United States

24 to minimize, to the greatest extent practicable, the

25 administrative burden and intrusiveness of measures
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1 to implement the Chemical Weapons Convention

2 placed on commercial and other private entities, and

3 to take into account the possible competitive impact

4 of regulatory measures on industry, consistent with

5 the obligations of the United States under the Con6 vention.

7 SEC. 5. DEFINITIONS.

8 (a) IN GENERAL.—Except as otherwise provided in

9 this Act, the definitions of the terms used in this Act shall

10 be those contained in the Chemical Weapons Convention.

11 (b) OTHER DEFINITIONS.—(1) The term ‘‘Chemical

12 Weapons Convention’’ means the Convention on the Prohi13 bition of the Development, Production, Stockpiling and

14 Use of Chemical Weapons and on Their Destruction,

15 opened for signature on January 13, 1993.

16 (2) The term ‘‘national of the United States’’ has the

17 same meaning given such term in section 101(a)(22) of

18 the Immigration and Nationality Act (8 U.S.C.

19 1101(a)(22)).

20 (3) The term ‘‘United States’’, when used in a geo21 graphical sense, includes all places under the jurisdiction

22 or control of the United States, including—

23 (A) any of the places within the provisions of

24 section 101(41) of the Federal Aviation Act of 1958,

25 as amended (49 U.S.C. App. Sec. 1301(41)),
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1 (B) any public aircraft or civil aircraft of the

2 United States, as such terms are defined in sections

3 101 (36) and (18) of the Federal Aviation Act of

4 1958, as amended (49 U.S.C. App. Secs. 1301(36)

5 and 1301(18)), and

6 (C) any vessel of the United States, as such

7 term is defined in section 3(b) of the Maritime Drug

8 Enforcement Act, as amended (46 U.S.C. App. Sec.

9 1903(b)).

10 (4) The term ‘‘person’’, except as used in section 201

11 of this Act and as set forth below, means—

12 (A) any individual, corporation, partnership,

13 firm, association, trust, estate, public or private in14 stitution, any State or any political subdivision

15 thereof, or any political entity within a State, any

16 foreign government or nation or any agency, instru17 mentality or political subdivision of any such govern18 ment or nation, or other entity located in the United

19 States; and

20 (B) any legal successor, representative, agent or

21 agency of the foregoing located in the United States.

22 The phrase ‘‘located in the United States’’ in the term

23 ‘‘person’’ shall not apply to the term ‘‘person’’ as used

24 in the phrase ‘‘person located outside the territory’’ in sec-
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1 tions 203(b), 203(c), and 302(c) of this Act and ‘‘person

2 located in the territory’’ in section 203(b) of this Act.

3 (5) The term ‘‘Technical Secretariat’’ means the

4 Technical Secretariat of the Organization for the Prohibi5 tion of Chemical Weapons established by the Chemical

6 Weapons Convention.

7 SEC. 6. SEVERABILITY.

8 If any provision of this Act, or the application of such

9 provision to any person or circumstance, is held invalid,

10 the remainder of this Act, or the application of such provi11 sion to persons or circumstances other than those as to

12 which it is held invalid, shall not be affected thereby.

13 TITLE I—NATIONAL AUTHORITY

14 SEC. 101. ESTABLISHMENT.

15 Pursuant to paragraph 4 of Article VII of the Chemi16 cal Weapons Convention, the President or the designee of

17 the President shall establish the ‘‘United States National

18 Authority’’ to, inter alia, serve as the national focal point

19 for effective liaison with the Organization for the Prohibi20 tion of Chemical Weapons and other States Parties to the

21 Convention.
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1 TITLE II—APPLICATION OF CON2 VENTION PROHIBITIONS TO

3 NATURAL AND LEGAL PER4 SONS

5 SEC. 201. CRIMINAL PROVISIONS.

6 (a) IN GENERAL.—Part I of title 18, United States

7 Code, is amended by—

8 (1) redesignating chapter 11A relating to child

9 support as chapter 11B; and

10 (2) inserting after chapter 11 relating to brib11 ery, graft and conflicts of interest the following new

12 chapter:

13 ‘‘CHAPTER 11A—CHEMICAL WEAPONS

‘‘Sec.

‘‘227. Penalties and prohibitions with respect to chemical weapons.

‘‘227A. Seizure, forfeiture, and destruction.

‘‘227B. Injunctions.

‘‘227C. Other prohibitions.

‘‘227D. Definitions.

14 ‘‘SEC. 227. PENALTIES AND PROHIBITIONS WITH RESPECT

15 TO CHEMICAL WEAPONS.

16 ‘‘(a) IN GENERAL.—Except as provided in subsection

17 (b), whoever knowingly develops, produces, otherwise ac18 quires, stockpiles, retains, directly or indirectly transfers,

19 uses, owns or possesses any chemical weapon, or know20 ingly assists, encourages or induces, in any way, any per21 son to do so, or attempts or conspires to do so, shall be
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1 fined under this title or imprisoned for life or any term

2 of years, or both.

3 ‘‘(b) EXCLUSION.—Subsection (a) shall not apply to

4 the retention, ownership or possession of a chemical weap5 on, that is permitted by the Chemical Weapons Convention

6 pending the weapon’s destruction, by any agency or de7 partment of the United States. This exclusion shall apply

8 to any person, including members of the Armed Forces

9 of the United States, who is authorized by any agency or

10 department of the United States to retain, own or possess

11 a chemical weapon, unless that person knows or should

12 have known that such retention, ownership or possession

13 is not permitted by the Chemical Weapons Convention.

14 ‘‘(c) JURISDICTION.—There is jurisdiction by the

15 United States over the prohibited activity in subsection (a)

16 if—

17 ‘‘(1) the prohibited activity takes place in the

18 United States, or

19 ‘‘(2) the prohibited activity takes place outside

20 of the United States and is committed by a national

21 of the United States.

22 ‘‘(d) ADDITIONAL PENALTY.—The court shall order

23 that any person convicted of any offense under this section

24 pay to the United States any expenses incurred incident

25 to the seizure, storage, handling, transportation and de-
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1 struction or other disposition of property seized for the

2 violation of this section.

3 ‘‘SEC. 227A. SEIZURE, FORFEITURE, AND DESTRUCTION.

4 ‘‘(a) SEIZURE.—(1) Except as provided in paragraph

5 (2), the Attorney General may request the issuance, in the

6 same manner as provided for a search warrant, of a war7 rant authorizing the seizure of any chemical weapon de8 fined in section 227D(2)(A) of this title that is of a type

9 or quantity that under the circumstances is inconsistent

10 with the purposes not prohibited under the Chemical

11 Weapons Convention.

12 ‘‘(2) In exigent circumstances, seizure and destruc13 tion of any such chemical weapon described in paragraph

14 (a)(1) may be made by the Attorney General upon prob15 able cause without the necessity for a warrant.

16 ‘‘(b) PROCEDURE FOR FORFEITURE AND DESTRUC17 TION.—Property seized pursuant to subsection (a) shall

18 be forfeited to the United States. Except as inconsistent

19 herewith, the provisions of chapter 46 of this title relating

20 to civil forfeitures shall extend to a seizure or forfeiture

21 under this section. The Attorney General shall provide for

22 the destruction or other appropriate disposition of any

23 chemical weapon seized and forfeited pursuant to this sec24 tion.
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1 ‘‘(c) AFFIRMATIVE DEFENSE.—It is an affirmative

2 defense against a forfeiture under subsection (b) that—

3 ‘‘(1) such alleged chemical weapon is for a pur4 pose not prohibited under the Chemical Weapons

5 Convention; and

6 ‘‘(2) such alleged chemical weapon is of a type

7 and quantity that under the circumstances is con8 sistent with that purpose.

9 ‘‘(d) OTHER SEIZURE, FORFEITURE, AND DESTRUC10 TION.—

11 ‘‘(1) Except as provided in paragraph (2), the

12 Attorney General may request the issuance, in the

13 same manner as provided for a search warrant, of

14 a warrant authorizing the seizure of any chemical

15 weapon defined in section 227D(2) (B) or (C) of

16 this title that exists by reason of conduct prohibited

17 under section 227 of this title.

18 ‘‘(2) In exigent circumstances, seizure and de19 struction of any such chemical weapon described in

20 paragraph (1) may be made by the Attorney General

21 upon probable cause without the necessity for a war22 rant.

23 ‘‘(3) Property seized pursuant to this sub24 section shall be summarily forfeited to the United

25 States and destroyed.
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1 ‘‘(e) ASSISTANCE.—The Attorney General may re2 quest assistance from any agency or department in the

3 handling, storage, transportation or destruction of prop4 erty seized under this section.

5 ‘‘(f) OWNER LIABILITY.—The owner or possessor of

6 any property seized under this section shall be liable to

7 the United States for any expenses incurred incident to

8 the seizure, including any expenses relating to the han9 dling, storage, transportation and destruction or other dis10 position of the seized property.

11 ‘‘SEC. 227B. INJUNCTIONS.

12 ‘‘(a) IN GENERAL.—The United States may obtain

13 in a civil action an injunction against—

14 ‘‘(1) the conduct prohibited under section 227

15 of this title;

16 ‘‘(2) the preparation or solicitation to engage in

17 conduct prohibited under section 227 of this title; or

18 ‘‘(3) the development, production, other acquisi19 tion, stockpiling, retention, direct or indirect trans20 fer, use, ownership or possession, or the attempted

21 development, production, other acquisition, stock22 piling, retention, direct or indirect transfer, use,

23 ownership or possession, of any alleged chemical

24 weapon defined in section 227D(2)(A) of this title

25 that is of a type or quantity that under the cir-
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1 cumstances is inconsistent with the purposes not

2 prohibited under the Chemical Weapons Convention,

3 or the assistance to any person to do so.

4 ‘‘(b) AFFIRMATIVE DEFENSE.—It is an affirmative

5 defense against an injunction under subsection (a)(3)

6 that—

7 ‘‘(1) the conduct sought to be enjoined is for a

8 purpose not prohibited under the Chemical Weapons

9 Convention; and

10 ‘‘(2) such alleged chemical weapon is of a type

11 and quantity that under the circumstances is con12 sistent with that purpose.

13 ‘‘SEC. 227C. OTHER PROHIBITIONS.

14 ‘‘(a) IN GENERAL.—Except as provided in subsection

15 (b), whoever knowingly uses riot control agents as a meth16 od of warfare, or knowingly assists any person to do so,

17 shall be fined under this title or imprisoned for a term

18 of not more than ten years, or both.

19 ‘‘(b) EXCLUSION.—Subsection (a) shall not apply to

20 members of the Armed Forces of the United States. Mem21 bers of the Armed Forces of the United States who use

22 riot control agents as a method of warfare shall be subject

23 to appropriate military penalties.
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1 ‘‘(c) JURISDICTION.—There is jurisdiction by the

2 United States over the prohibited activity in subsection (a)

3 if—

4 ‘‘(1) the prohibited activity takes place in the

5 United States, or

6 ‘‘(2) the prohibited activity takes place outside

7 of the United States and is committed by a national

8 of the United States.

9 ‘‘SEC. 227D. DEFINITIONS.

10 ‘‘As used in this chapter, the term—

11 ‘‘(1) ‘Chemical Weapons Convention’ means the

12 Convention on the Prohibition of the Development,

13 Production, Stockpiling and Use of Chemical Weap14 ons and on Their Destruction, opened for signature

15 on January 13, 1993;

16 ‘‘(2) ‘chemical weapon’ means the following, to17 gether or separately:

18 ‘‘(A) a toxic chemical and its precursors,

19 except where intended for a purpose not prohib20 ited under the Chemical Weapons Convention,

21 as long as the type and quantity is consistent

22 with such a purpose;

23 ‘‘(B) a munition or device, specifically de24 signed to cause death or other harm through

25 the toxic properties of those toxic chemicals
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1 specified in subparagraph (A), which would be

2 released as a result of the employment of such

3 munition or device; or

4 ‘‘(C) any equipment specifically designed

5 for use directly in connection with the employ6 ment of munitions or devices specified in sub7 paragraph (B);

8 ‘‘(3) ‘toxic chemical’ means any chemical which

9 through its chemical action on life processes can

10 cause death, temporary incapacitation or permanent

11 harm to humans or animals. This includes all such

12 chemicals, regardless of their origin or of their meth13 od of production, and regardless of whether they are

14 produced in facilities, in munitions or elsewhere;

15 ‘‘(4) ‘precursor’ means any chemical reactant

16 which takes part at any stage in the production by

17 whatever method of a toxic chemical. This includes

18 any key component of a binary or multicomponent

19 chemical system;

20 ‘‘(5) ‘key component of a binary or

21 multicomponent chemical system’ means the precur22 sor which plays the most important role in determin23 ing the toxic properties of the final product and re24 acts rapidly with other chemicals in the binary or

25 multicomponent system;
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1 ‘‘(6) ‘purpose not prohibited under the Chemi2 cal Weapons Convention’ means—

3 ‘‘(A) industrial, agricultural, research,

4 medical, pharmaceutical or other peaceful pur5 poses;

6 ‘‘(B) protective purposes, namely those

7 purposes directly related to protection against

8 toxic chemicals and to protection against chemi9 cal weapons;

10 ‘‘(C) military purposes not connected with

11 the use of chemical weapons and not dependent

12 on the use of the toxic properties of chemicals

13 as a method of warfare; or

14 ‘‘(D) law enforcement purposes, including

15 domestic riot control purposes;

16 ‘‘(7) ‘national of the United States’ has the

17 same meaning given such term in section 101(a)(22)

18 of the Immigration and Nationality Act (8 U.S.C.

19 1101(a)(22));

20 ‘‘(8) ‘United States,’ when used in a geographi21 cal sense, includes all places under the jurisdiction

22 or control of the United States, including—

23 ‘‘(A) any of the places within the provi24 sions of section 101(41) of the Federal Aviation
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1 Act of 1958, as amended (49 U.S.C. App. Sec.

2 1301(41)),

3 ‘‘(B) any public aircraft or civil aircraft of

4 the United States, as such terms are defined in

5 sections 101 (36) and (18) of the Federal Avia6 tion Act of 1958, as amended (49 U.S.C. App.

7 Secs. 1301(36) and 1301(18)), and

8 ‘‘(C) any vessel of the United States, as

9 such term is defined in section 3(b) of the Mar10 itime Drug Enforcement Act, as amended (46

11 U.S.C. App. Sec. 1903(b));

12 ‘‘(9) ‘person’ means—

13 ‘‘(A) any individual, corporation, partner14 ship, firm, association, trust, estate, public or

15 private institution, any State or any political

16 subdivision thereof, or any political entity with17 in a State, any foreign government or nation or

18 any agency, instrumentality or political subdivi19 sion of any such government or nation, or other

20 entity; and

21 ‘‘(B) any legal successor, representative,

22 agent or agency of the foregoing; and

23 ‘‘(10) ‘riot control agent’ means any chemical

24 not listed in a Schedule in the Annex on Chemicals

25 of the Chemical Weapons Convention, which can
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1 produce rapidly in humans sensory irritation or dis2 abling physical effects which disappear within a

3 short time following termination of exposure.’’

4 (b) CLERICAL AMENDMENTS.—The table of chapters

5 for part I of title 18, United States Code, is amended by—

6 (1) in the item for chapter 11A relating to child

7 support, redesignating ‘‘11A’’ as ‘‘11B’’; and

8 (2) inserting after the item for chapter 11 the

9 following new item:

‘‘11A. CHEMICAL WEAPONS ............................................................... 227.’’

10 SEC. 202. EFFECTIVE DATE.

11 This title shall take effect on the date the Chemical

12 Weapons Convention enters into force for the United

13 States.

14 SEC. 203. RESTRICTIONS ON SCHEDULED CHEMICALS.

15 (a) SCHEDULE 1 ACTIVITIES.—It shall be unlawful

16 for any person or any national of the United States lo17 cated outside the United States to produce, acquire, re18 tain, transfer or use a chemical listed on Schedule 1 of

19 the Annex on Chemicals of the Chemical Weapons Conven20 tion, unless—

21 (1) the chemicals are applied to research, medi22 cal, pharmaceutical or protective purposes;

23 (2) the types and quantities of chemicals are

24 strictly limited to those that can be justified for such

25 purposes; and
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1 (3) the amount of such chemicals per person at

2 any given time for such purposes does not exceed a

3 limit to be determined by the United States National

4 Authority, but in any case, does not exceed one met5 ric ton.

6 (b) EXTRATERRITORIAL ACTS.—(1) It shall be un7 lawful for any person or any national of the United States

8 located outside the United States to produce, acquire, re9 tain or use a chemical listed on Schedule 1 of the Annex

10 on Chemicals of the Chemical Weapons Convention out11 side the territories of the States Parties to the Convention

12 or to transfer such chemicals to any person located outside

13 the territory of the United States, except as provided for

14 in the Convention for transfer to a person located in the

15 territory of another State Party to the Convention.

16 (2) Beginning three years after the entry into force

17 of the Chemical Weapons Convention, it shall be unlawful

18 for any person or any national of the United States lo19 cated outside the United States to transfer a chemical list20 ed on Schedule 2 of the Annex on Chemicals of the Con21 vention to any person located outside the territory of a

22 State Party to the Convention or to receive such a chemi23 cal from any person located outside the territory of a State

24 Party to the Convention.
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1 (c) JURISDICTION.—There is jurisdiction by the

2 United States over the prohibited activity in subsections

3 (a) and (b) if—

4 (1) the prohibited activity takes place in the

5 United States, or

6 (2) the prohibited activity takes place outside of

7 the United States and is committed by a national of

8 the United States.

9 TITLE III—DECLARATIONS BY

10 CHEMICAL INDUSTRY

11 SEC. 301. REPORTING OF INFORMATION.

12 (a) REPORTS.—The Department of Commerce shall

13 promulgate regulations under which each person who pro14 duces, processes, consumes, exports or imports, or pro15 poses to produce, process, consume, export or import, a

16 chemical substance subject to the Chemical Weapons Con17 vention shall maintain and permit access to such records

18 and shall submit to the Department of Commerce such

19 reports as the United States National Authority may rea20 sonably require pursuant to the Chemical Weapons Con21 vention. The Department of Commerce shall promulgate

22 regulations pursuant to this title expeditiously, and may

23 amend or change such regulations as necessary.

24 (b) COORDINATION.—To the extent feasible, the

25 United States National Authority shall not require any re-
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1 porting that is unnecessary, or duplicative of reporting re2 quired under any other Act. Agencies and departments

3 shall coordinate their actions with other agencies and de4 partments to avoid duplication of reporting by the affected

5 persons under this Act or any other Act.

6 SEC. 302. DISCLOSURE OF INFORMATION OR MATERIALS.

7 (a) IN GENERAL.—Any information or materials re8 ported to, or otherwise obtained by, the United States Na9 tional Authority or the Department of Commerce, or any

10 other agency or department under this Act or the Chemi11 cal Weapons Convention may be withheld from public dis12 closure or provision only to the extent permitted by law.

13 Information or materials obtained from declarations or in14 spections required by the Chemical Weapons Convention,

15 that are not already in the public domain, shall be with16 held from public disclosure or provision and shall not be

17 required to be disclosed pursuant to section 552 of title

18 5, United States Code, except that such information or

19 material—

20 (1) shall be disclosed or otherwise provided to

21 the Technical Secretariat or other States Parties to

22 the Chemical Weapons Convention in accordance

23 with the Convention, in particular, the provisions of

24 the Annex on the Protection of Confidential Infor25 mation;
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1 (2) shall be made available to any committee or

2 subcommittee of Congress of appropriate jurisdiction

3 upon the written request of the chairman or ranking

4 minority member of such committee or subcommit5 tee, except that no such committee or subcommittee,

6 or member thereof, shall disclose such information

7 or material;

8 (3) shall be disclosed to other agencies or de9 partments for law enforcement purposes with regard

10 to this Act or any other Act, and may be disclosed

11 or otherwise provided when relevant in any proceed12 ing under this Act or any other Act, except that dis13 closure or provision in such a proceeding shall be

14 made in such manner as to preserve confidentiality

15 to the extent practicable without impairing the pro16 ceeding; and

17 (4) may be disclosed, including in the form of

18 categories of information, if the United States Na19 tional Authority determines that such disclosure is

20 in the national interest.

21 (b) NOTICE OF DISCLOSURE.—If the United States

22 National Authority, pursuant to subsection (a)(4), pro23 poses to publish or disclose or otherwise provide informa24 tion or materials exempted from disclosure in subsection

25 (a), the United States National Authority shall, where ap-
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1 propriate, notify the person who submitted such informa2 tion or materials of the intent to release such information

3 or materials. Where notice has been provided, the United

4 States National Authority may not release such informa5 tion or materials until the expiration of thirty days after

6 notice has been provided.

7 (c) CRIMINAL PENALTY FOR WRONGFUL DISCLO8 SURE.—Any officer or employee of the United States or

9 former officer or employee of the United States, who by

10 virtue of such employment or official position has obtained

11 possession of, or has access to, information or materials

12 the disclosure or other provision of which is prohibited by

13 subsection (a), and who knowing that disclosure or provi14 sion of such information or materials is prohibited by such

15 subsection, willfully discloses or otherwise provides the in16 formation or materials in any manner to any person, in17 cluding persons located outside the territory of the United

18 States, not entitled to receive it, shall be fined under title

19 18, United States Code, or imprisoned for not more than

20 five years, or both.

21 (d) INTERNATIONAL INSPECTORS.—The provisions of

22 this section on disclosure or provision of information or

23 materials shall also apply to employees of the Technical

24 Secretariat.
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1 SEC. 303. PROHIBITED ACTS.

2 It shall be unlawful for any person to fail or refuse

3 to—

4 (a) establish or maintain records,

5 (b) submit reports, notices, or other information

6 to the Department of Commerce or the United

7 States National Authority, or

8 (c) permit access to or copying of records, as

9 required by this Act or a regulation thereunder.

10 TITLE IV—INSPECTIONS

11 SEC. 401. INSPECTIONS OF CHEMICAL INDUSTRY.

12 (a) AUTHORITY.—For purposes of administering this

13 Act—

14 (1) any duly designated member of an inspec15 tion team of the Technical Secretariat may inspect

16 any plant, plant site, or other facility or location in

17 the United States subject to inspection pursuant to

18 the Chemical Weapons Convention; and

19 (2) any duly designated representative of an

20 agency or department may accompany members of

21 an inspection team of the Technical Secretariat dur22 ing the inspection specified in paragraph (1).

23 (b) NOTICE.—An inspection pursuant to subsection

24 (a) may be made only upon issuance of a written notice

25 to the owner and to the operator, occupant or agent in

26 charge of the premises to be inspected, except that failure
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1 to receive a notice shall not be a bar to the conduct of

2 an inspection. The notice shall be submitted to the owner

3 and to the operator, occupant or agent in charge as soon

4 as possible after the United States National Authority re5 ceives it from the Technical Secretariat. The notice shall

6 include all appropriate information supplied by the Tech7 nical Secretariat to the United States National Authority

8 regarding the basis for the selection of the plant site,

9 plant, or other facility or location for the type of inspection

10 sought, including, for challenge inspections pursuant to

11 Article IX of the Chemical Weapons Convention, appro12 priate evidence or reasons provided by the requesting

13 State Party to the Convention with regard to its concerns

14 about compliance with the Chemical Weapons Convention

15 at the facility or location. A separate notice shall be given

16 for each such inspection, but a notice shall not be required

17 for each entry made during the period covered by the in18 spection.

19 (c) CREDENTIALS.—If the owner, operator, occupant

20 or agent in charge of the premises to be inspected is

21 present, a member of the inspection team of the Technical

22 Secretariat, as well as, if present, the representatives of

23 agencies or departments, shall present appropriate creden24 tials before the inspection is commenced.
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1 (d) TIME FRAME FOR INSPECTIONS.—Consistent

2 with the provisions of the Chemical Weapons Convention,

3 each inspection shall be commenced and completed with

4 reasonable promptness and shall be conducted at reason5 able times, within reasonable limits, and in a reasonable

6 manner. The Department of Commerce shall endeavor to

7 ensure that, to the extent possible, each inspection is com8 menced, conducted and concluded during ordinary work9 ing hours, but no inspection shall be prohibited or other10 wise disrupted for commencing, continuing or concluding

11 during other hours. However, nothing in this subsection

12 shall be interpreted as modifying the time frames estab13 lished in the Chemical Weapons Convention.

14 (e) SCOPE.—(1) Except as provided in paragraph (2)

15 of this subsection and subsection (f), an inspection con16 ducted under this title may extend to all things within the

17 premises inspected (including records, files, papers, proc18 esses, controls, structures and entering and exiting vehi19 cles) related to whether the requirements of the Chemical

20 Weapons Convention applicable to such premises have

21 been complied with.

22 (2) To the extent possible consistent with the obliga23 tions of the United States pursuant to the Chemical

24 Weapons Convention, no inspection under this title shall

25 extend to—
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1 (A) financial data;

2 (B) sales and marketing data (other than ship3 ment data);

4 (C) pricing data;

5 (D) personnel data;

6 (E) research data;

7 (F) patent data; or

8 (G) data maintained for compliance with envi9 ronmental or occupational health and safety regula10 tions.

11 (f) FACILITY AGREEMENTS.—(1) Inspections of

12 plants, plant sites, or other facilities or locations for which

13 the United States has a facility agreement with the Orga14 nization for the Prohibition of Chemical Weapons shall be

15 conducted in accordance with the facility agreement.

16 (2) Facility agreements shall be concluded for plants,

17 plant sites, or other facilities or locations that are subject

18 to inspection pursuant to paragraph 4 of Article VI of the

19 Chemical Weapons Convention unless the owner and the

20 operator, occupant or agent in charge of the facility and

21 the Technical Secretariat agree that such an agreement

22 is not necessary. Facility agreements should be concluded

23 for plants, plant sites, or other facilities or locations that

24 are subject to inspection pursuant to paragraphs 5 or 6

25 of Article VI of the Chemical Weapons Convention if so
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1 requested by the owner and the operator, occupant or

2 agent in charge of the facility.

3 (3) The owner and the operator, occupant or agent

4 in charge shall, to the extent practicable consistent with

5 the obligations of the United States under the Chemical

6 Weapons Convention, participate in the negotiation of all

7 facility agreements concluded pursuant to the Convention.

8 (g) SAMPLING AND SAFETY.—(1) The Department of

9 Commerce is authorized to require the provision of sam10 ples to a member of the inspection team of the Technical

11 Secretariat in accordance with the provisions of the Chem12 ical Weapons Convention. The owner or the operator, oc13 cupant or agent in charge of the premises to be inspected

14 shall determine whether the sample shall be taken by rep15 resentatives of the premises or the inspection team or

16 other individuals present.

17 (2) In carrying out their activities, members of the

18 inspection team of the Technical Secretariat and rep19 resentatives of agencies or departments accompanying the

20 inspection team shall observe safety regulations estab21 lished at the premises to be inspected, including those for

22 protection of controlled environments within a facility and

23 for personal safety.

24 (h) COORDINATION.—To the extent possible consist25 ent with the obligations of the United States pursuant to
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1 the Chemical Weapons Convention, the representatives of

2 the United States National Authority, the Department of

3 Commerce and any other agency or department, if

4 present, shall assist the owner and the operator, occupant

5 or agent in charge of the premises to be inspected in inter6 acting with the members of the inspection team of the

7 Technical Secretariat.

8 SEC. 402. OTHER INSPECTIONS AND LEAD AGENCY.

9 (a) OTHER INSPECTIONS.—The provisions of this

10 title shall apply, as appropriate, to all other inspections

11 authorized by the Chemical Weapons Convention. For all

12 inspections other than those conducted pursuant to para13 graphs 4, 5, or 6 of Article VI of the Convention, the term

14 ‘‘Department of Commerce’’ shall be replaced by the term

15 ‘‘Lead Agency’’ in section 401.

16 (b) LEAD AGENCY.—For the purposes of this title,

17 the term ‘‘Lead Agency’’ means the agency or department

18 designated by the President or the designee of the Presi19 dent to exercise the functions and powers set forth in the

20 specific provision, based, inter alia, on the particular re21 sponsibilities of the agency or department within the

22 United States Government and the relationship of the

23 agency or department to the premises to be inspected.
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1 SEC. 403. PROHIBITED ACTS.

2 It shall be unlawful for any person to fail or refuse

3 to permit entry or inspection, or to disrupt, delay or other4 wise impede an inspection as required by this Act or the

5 Chemical Weapons Convention.

6 SEC. 404. PENALTIES.

7 (a) CIVIL.—(1) Any person who violates a provision

8 of section 203, 303, or 403 of this Act shall be liable to

9 the United States for a civil penalty in an amount not

10 to exceed $50,000 for each such violation. For purposes

11 of this subsection, each day such a violation of section 403

12 continues shall constitute a separate violation of section

13 403.

14 (2)(A) A civil penalty for a violation of section 203,

15 303, or 403 of this Act shall be assessed by the Lead

16 Agency by an order made on the record after opportunity

17 (provided in accordance with this subparagraph) for a

18 hearing in accordance with section 554 of title 5, United

19 States Code. Before issuing such an order, the Lead Agen20 cy shall give written notice to the person to be assessed

21 a civil penalty under such order of the Lead Agency’s pro22 posal to issue such order and provide such person an op23 portunity to request, within fifteen days of the date the

24 notice is received by such person, such a hearing on the

25 order.
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1 (B) In determining the amount of a civil penalty, the

2 Lead Agency shall take into account the nature, cir3 cumstances, extent and gravity of the violation or viola4 tions and, with respect to the violator, ability to pay, effect

5 on ability to continue to do business, any history of prior

6 such violations, the degree of culpability, and such other

7 matters as justice may require.

8 (C) The Lead Agency may compromise, modify or

9 remit, with or without conditions, any civil penalty which

10 may be imposed under this subsection. The amount of

11 such penalty, when finally determined, or the amount

12 agreed upon in compromise, may be deducted from any

13 sums owing by the United States to the person charged.

14 (3) Any person who requested in accordance with

15 paragraph (2)(A) a hearing respecting the assessment of

16 a civil penalty and who is aggrieved by an order assessing

17 a civil penalty may file a petition for judicial review of

18 such order with the United States Court of Appeals for

19 the District of Columbia Circuit or for any other circuit

20 in which such person resides or transacts business. Such

21 a petition may be filed only within the thirty-day period

22 beginning on the date the order making such assessment

23 was issued.

24 (4) If any person fails to pay an assessment of a civil

25 penalty—
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1 (A) after the order making the assessment has

2 become a final order and if such person does not file

3 a petition for judicial review of the order in accord4 ance with paragraph (3); or

5 (B) after a court in an action brought under

6 paragraph (3) has entered a final judgment in favor

7 of the Lead Agency;

8 the Attorney General shall recover the amount assessed

9 (plus interest at currently prevailing rates from the date

10 of the expiration of the thirty-day period referred to in

11 paragraph (3) or the date of such final judgment, as the

12 case may be) in an action brought in any appropriate dis13 trict court of the United States. In such an action, the

14 validity, amount and appropriateness of such penalty shall

15 not be subject to review.

16 (b) CRIMINAL.—Any person who knowingly violates

17 any provision of section 203, 303, or 403 of this Act, shall,

18 in addition to or in lieu of any civil penalty which may

19 be imposed under subsection (a) for such violation, be

20 fined under title 18, United States Code, imprisoned for

21 not more than two years, or both.

22 SEC. 405. SPECIFIC ENFORCEMENT.

23 (a) JURISDICTION.—The district courts of the United

24 States shall have jurisdiction over civil action to—
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1 (1) restrain any violation of section 203, 303,

2 or 403 of this Act; and

3 (2) compel the taking of any action required by

4 or under this Act or the Chemical Weapons Conven5 tion.

6 (b) CIVIL ACTION.—A civil action described in sub7 section (a) may be brought—

8 (1) in the case of a civil action described in sub9 section (a)(1), in the United States district court for

10 the judicial district wherein any act, omission, or

11 transaction constituting a violation of section 203,

12 303, or 403 of this Act occurred or wherein the de13 fendant is found or transacts business; or

14 (2) in the case of a civil action described in sub15 section (a)(2), in the United States district court for

16 the judicial district wherein the defendant is found

17 or transacts business.

18 In any such civil action process may be served on a defend19 ant wherever the defendant may reside or may be found,

20 whether the defendant resides or may be found within the

21 United States or elsewhere.

22 SEC. 406. LEGAL PROCEEDINGS.

23 (a) WARRANTS.—(1) The Lead Agency shall seek the

24 consent of the owner or the operator, occupant or agent

25 in charge of the premises to be inspected prior to the initi-
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1 ation of any inspection. Before or after seeking such con2 sent, the Lead Agency may seek a search warrant from

3 any official authorized to issue search warrants. Proceed4 ings regarding the issuance of a search warrant shall be

5 conducted ex parte, unless otherwise requested by the

6 Lead Agency. The Lead Agency shall provide to the offi7 cial authorized to issue search warrants all appropriate in8 formation supplied by the Technical Secretariat to the

9 United States National Authority regarding the basis for

10 the selection of the plant site, plant, or other facility or

11 location for the type of inspection sought, including, for

12 challenge inspections pursuant to Article IX of the Chemi13 cal Weapons Convention, appropriate evidence or reasons

14 provided by the requesting State Party to the Convention

15 with regard to its concerns about compliance with the

16 Chemical Weapons Convention at the facility or location.

17 The Lead Agency shall also provide any other appropriate

18 information available to it relating to the reasonableness

19 of the selection of the plant, plant site, or other facility

20 or location for the inspection.

21 (2) The official authorized to issue search warrants

22 shall promptly issue a warrant authorizing the requested

23 inspection upon an affidavit submitted by the Lead Agen24 cy showing that—
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1 (A) the Chemical Weapons Convention is in

2 force for the United States;

3 (B) the plant site, plant, or other facility or lo4 cation sought to be inspected is subject to the spe5 cific type of inspection requested under the Chemical

6 Weapons Convention;

7 (C) the procedures established under the Chem8 ical Weapons Convention and this Act for initiating

9 an inspection have been complied with; and

10 (D) the Lead Agency will ensure that the in11 spection is conducted in a reasonable manner and

12 will not exceed the scope or duration set forth in or

13 authorized by the Chemical Weapons Convention or

14 this Act.

15 (3) The warrant shall specify the type of inspection

16 authorized; the purpose of the inspection; the type of plant

17 site, plant, or other facility or location to be inspected;

18 to the extent possible, the items, documents and areas that

19 may be inspected; the earliest commencement and latest

20 concluding dates and times of the inspection; and the iden21 tities of the representatives of the Technical Secretariat,

22 if known, and, if applicable, the representatives of agencies

23 or departments.

24 (b) SUBPOENAS.—In carrying out this Act, the Lead

25 Agency may by subpoena require the attendance and testi-
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1 mony of witnesses and the production of reports, papers,

2 documents, answers to questions and other information

3 that the Lead Agency deems necessary. Witnesses shall

4 be paid the same fees and mileage that are paid witnesses

5 in the courts of the United States. In the event of contu6 macy, failure or refusal of any person to obey any such

7 subpoena, any district court of the United States in which

8 venue is proper shall have jurisdiction to order any such

9 person to comply with such subpoena. Any failure to obey

10 such an order of the court is punishable by the court as

11 a contempt thereof.

12 (c) INJUNCTIONS AND OTHER ORDERS.—No court

13 shall issue an injunction or other order that would limit

14 the ability of the Technical Secretariat to conduct, or the

15 United States National Authority or the Lead Agency to

16 facilitate, inspections as required or authorized by the

17 Chemical Weapons Convention.

18 SEC. 407. AUTHORITY.

19 The Lead Agency may issue such regulations as are

20 necessary to implement this title and the provisions of the

21 Chemical Weapons Convention, and amend or revise them

22 as necessary. The Lead Agency shall have the authority

23 to appoint officials to issue warrants pursuant to section

24 406(a) authorizing inspections pursuant to this title.

Æ
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