II

104TH CONGRESS

2D SESSION S. 1732

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 SENATE OF THE UNITED STATES

MAY 8, 1996

Mr. LUGAR (for himself and Mr. PELL) (by request) introduced the following

bill; which was read twice and referred to the Committee on Foreign Relations

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 1995.’’
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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—REPORTING

Sec. 301. Reporting of information.

Sec. 302. Confidentiality of information.

Sec. 303. Prohibited acts.

TITLE IV—INSPECTIONS

Sec. 401. Inspections pursuant to article VI of the Chemical Weapons Convention.

Sec. 402. Other inspections pursuant to the Chemical Weapons Convention and

lead agency.

Sec. 403. Prohibited acts.

Sec. 404. Penalties.

Sec. 405. Specific enforcement.

Sec. 406. Legal proceedings.

Sec. 407. Authority.

Sec. 408. Saving provision.

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 chem-
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1 ical weapons and their eventual destruction and for2 swearing by all nations.

3 (3) The verification procedures contained in the

4 Chemical Weapons Convention and the faithful ad5 herence of nations to them, including the United

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

7 (4) The declarations and inspections required

8 by the Chemical Weapons Convention are essential

9 for the effectiveness of the verification regime.

10 SEC. 4. CONGRESSIONAL DECLARATIONS.

11 The Congress makes the following declarations:

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

13 to cooperate with other states parties to the Chemi14 cal Weapons Convention and to afford the appro15 priate form of legal assistance to facilitate the imple16 mentation of the prohibitions contained in title II of

17 this Act.

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

19 during the implementation of its obligations under

20 the Chemical Weapons Convention, to assign the

21 highest priority to ensuring the safety of people and

22 to protecting the environment, and to cooperate as

23 appropriate with other states parties to the Conven24 tion in this regard.
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1 (3) It shall be the policy of the United States

2 to minimize, to the greatest extent practicable, the

3 administrative burden and intrusiveness of measures

4 to implement the Chemical Weapons Convention

5 placed on commercial and other private entities, and

6 to take into account the possible competitive impact

7 of regulatory measures on industry, consistent with

8 the obligations of the United States under the Con9 vention.

10 SEC. 5. DEFINITIONS.

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

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

13 be those contained in the Chemical Weapons Convention.

14 Nothing in paragraphs 2 or 3 of article II of the Chemical

15 Weapons Convention shall be construed to limit verifica16 tion activities pursuant to parts X or XI of the Annex

17 on Implementation and Verification of the Convention.

18 (b) OTHER DEFINITIONS.—

19 (1) The term ‘‘Chemical Weapons Convention’’

20 means the Convention on the Prohibition of the De21 velopment, Production, Stockpiling and Use of

22 Chemical Weapons and on Their Destruction,

23 opened for signature on January 13, 1993.

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

25 has the same meaning given such term in section
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1 101(a)(22) of the Immigration and Nationality Act

2 (8 U.S.C. 1101(a)(22)).

3 (3) The term ‘‘United States,’’ when used in a

4 geographical sense, includes all places under the ju5 risdiction or control of the United States, including

6 (A) any of the places within the provisions of section

7 101(41) of the Federal Aviation Act of 1958, as

8 amended (49 U.S.C. App. Sec. 1301(41)), (B) any

9 public aircraft or civil aircraft of the United States,

10 as such terms are defined in sections 101(36) and

11 (18) of the Federal Aviation Act of 1958, as amend12 ed (49 U.S.C. App. Secs. 1301(36) and 1301(18)),

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

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

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

16 1903(b)).

17 (4) The term ‘‘person,’’ except as used in sec18 tion 201 of this Act and as set forth below, means

19 (A) any individual, corporation, partnership, firm,

20 association, trust, estate, public or private institu21 tion, any State or any political subdivision thereof,

22 or any political entity within a State, any foreign

23 government or nation or any agency, instrumentality

24 or political subdivision of any such government or

25 nation, or other entity located in the United States;
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1 and (B) any legal successor, representative, agent or

2 agency of the foregoing located in the United States.

3 The phrase ‘‘located in the United States’’ in the

4 term ‘‘person’’ shall not apply to the term ‘‘person’’

5 as used in the phrases ‘‘person located outside the

6 territory’’ in sections 203(b) and 302(d) of this Act

7 and ‘‘person located in the territory’’ in section

8 203(b) of this Act.

9 (5) The term ‘‘Technical Secretariat’’ means

10 the Technical Secretariat of the Organization for the

11 Prohibition of Chemical Weapons established by the

12 Chemical Weapons Convention.

13 SEC. 6. SEVERABILITY.

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

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

16 the remainder of this Act, or the application of such provi17 sion to persons or circumstances other than those as to

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

19 TITLE I—NATIONAL AUTHORITY

20 SEC. 101. ESTABLISHMENT.

21 Pursuant to paragraph 4 of article VII of the Chemi22 cal Weapons Convention, the President or the designee of

23 the President shall establish the ‘‘United States National

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

25 for effective liaison with the Organization for the Prohibi-
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1 tion of Chemical Weapons and other States Parties to the

2 Convention.

3 TITLE II—APPLICATION OF CONVENTION

4 PROHIBITIONS TO NATURAL AND

5 LEGAL PERSONS

6 SEC. 201. CRIMINAL PROVISIONS.

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

8 Code, is amended by—

9 (1) redesignating chapter 11A relating to child

10 support as chapter 11B; and

11 (2) inserting after chapter 11 relating to brib12 ery, graft and conflicts of interest the following new

13 chapter:

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

17 States or (2) the prohibited activity takes place outside

18 of the United States and is committed by a national of

19 the United States.

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

21 that any person convicted of any offense under this section

22 pay to the United States any expenses incurred incident

23 to the seizure, storage, handling, transportation and de24 struction or other disposition of property seized for the

25 violation of this section.
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1 ‘‘SEC. 227A. SEIZURE, FORFEITURE, AND DESTRUCTION.

2 ‘‘(a) SEIZURE.—

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

4 Attorney General may request the issuance, in the

5 same manner as provided for a search warrant, of

6 a warrant authorizing the seizure of any chemical

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

8 that is of a type or quantity that under the cir9 cumstances is inconsistent with the purposes not

10 prohibited under the Chemical Weapons Convention.

11 ‘‘(2) In exigent circumstances, seizure and de12 struction of any such chemical weapon described in

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

14 upon probable cause without the necessity for a war15 rant.

16 ‘‘(b) PROCEDURE FOR FORFEITURE AND DESTRUC17 TION.—Except as provided in paragraph (2) of subsection

18 (a), property seized pursuant to subsection (a) shall be

19 forfeited to the United States after notice to potential

20 claimants and an opportunity for a hearing. At such a

21 hearing, the Government shall bear the burden of persua22 sion by a preponderance of the evidence. Except as incon23 sistent herewith, the provisions of chapter 46 of this title

24 relating to civil forfeitures shall extend to a seizure or for25 feiture under this section. The Attorney General shall pro26 vide for the destruction or other appropriate disposition
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1 of any chemical weapon seized and forfeited pursuant to

2 this section.

3 ‘‘(c) AFFIRMATIVE DEFENSE.—It is an affirmative

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

5 ‘‘(1) such alleged chemical weapon is for a pur6 pose not prohibited under the Chemical Weapons

7 Convention; and

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

9 and quantity that under the circumstances is con10 sistent with the purpose.

11 ‘‘(d) OTHER SEIZURE, FORFEITURE, AND DESTRUC12 TION.—

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

14 Attorney General may request the issuance, in the

15 same manner as provided for a search warrant, of

16 a warrant authorizing the seizure of any chemical

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

18 this title that exists by reason of conduct prohibited

19 under section 227 of this title.

20 ‘‘(2) In exigent circumstances, seizure and de21 struction of any such chemical weapon described in

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

23 upon probable cause without the necessity for a war24 rant.
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1 ‘‘(3) Property seized pursuant to this sub2 section shall be summarily forfeited to the United

3 States and destroyed.

4 ‘‘(e) ASSISTANCE.—The Attorney General may re5 quest assistance from any agency or department in the

6 handling, storage, transportation or destruction of prop7 erty seized under this section.

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

9 any property seized under this section shall be liable to

10 the United States for any expenses incurred incident to

11 the seizure, including any expenses relating to the han12 dling, storage, transportation and destruction or other dis13 position of the seized property.

14 ‘‘SEC. 227B. INJUNCTIONS.

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

16 in a civil action an injunction against—

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

18 of this title;

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

20 conduct prohibited under section 227 of this title; or

21 ‘‘(3) the development, production, other acquisi22 tion, stockpiling, retention, direct or indirect trans23 fer, use, ownership or possession, or the attempted

24 development, production, other acquisition, stock25 piling, retention, direct or indirect transfer, use,
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1 ownership or possession, of any alleged chemical

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

3 that is of a type or quantity that under the cir4 cumstances is inconsistent with the purposes not

5 prohibited under the Chemical Weapons Convention,

6 or the assistance to any person to do so.

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

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

9 that—

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

11 purpose not prohibited under the Chemical Weapons

12 Convention; and

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

14 and quantity that under the circumstances is con15 sistent with that purpose.

16 ‘‘SEC. 227C. OTHER PROHIBITIONS.

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

18 (b), whoever knowingly uses riot control agents as a meth19 od of warfare, or knowingly assists any person to do so,

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

21 of not more than ten years, or both.

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

23 members of the Armed Forces of the United States. Mem24 bers of the Armed Forces of the United States who use
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1 riot control agents as a method of warfare shall be subject

2 to appropriate military penalties.

3 (c) JURISDICTION.—There is jurisdiction by the

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

5 if (1) the prohibited activity takes place in the United

6 States or (2) the prohibited activity takes place outside

7 of the United States and is committed by a national of

8 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 (For the purpose of implementing the Chemical

16 Weapons Convention, toxic chemicals which have

17 been identified for the application of verification

18 measures are listed in Schedules contained in the

19 Annex on Chemicals of the Chemical Weapons Con20 vention.);

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

22 which takes part at any stage in the production by

23 whatever method of a toxic chemical. This includes

24 any key component of a binary or multicomponent

25 chemical system. (For the purpose of implementing
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1 the Chemical Weapons Convention, precursors which

2 have been identified for the application of verifica3 tion measures are listed in Schedules contained in

4 the Annex on Chemicals of the Chemical Weapons

5 Convention.);

6 ‘‘(5) ‘key component of a binary or multicompo7 nent chemical system’ means the precursor which

8 plays the most important role in determining the

9 toxic properties of the final product and reacts rap10 idly with other chemicals in the binary or multi11 component system;

12 ‘‘(6) ‘purpose not prohibited under the Chemi13 cal Weapons Convention’ means—

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

15 medical, pharmaceutical or other peaceful pur16 poses;

17 ‘‘(B) protective purposes, namely those

18 purposes directly related to protection against

19 toxic chemicals and to protection against chemi20 cal weapons;

21 ‘‘(C) military purposes not connected with

22 the use of chemical weapons and not dependent

23 on the use of the toxic properties of chemicals

24 as a method of warfare; or
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1 ‘‘(D) law enforcement purposes, including

2 domestic riot control purposes;

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

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

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

6 1101(a)(22));

7 ‘‘(8) ‘United States,’ when used in a geographi8 cal sense, includes all places under the jurisdiction

9 or control of the United States, including (A) any of

10 the places within the provisions of section 101(41)

11 of the Federal Aviation Act of 1958, as amended

12 (49 U.S.C. App. Sec. 1301(41)), (B) any public air13 craft or civil aircraft of the United States, as such

14 terms are defined in sections 101(36) and (18) of

15 the Federal Aviation Act of 1958, as amended (49

16 U.S.C. App. Secs. 1301(36) and 1301(18)), and (C)

17 any vessel of the United States, as such term is de18 fined in section 3(b) of the Maritime Drug Enforce19 ment Act, as amended (46 U.S.C. App. Sec.

20 1903(b));

21 ‘‘(9) ‘person’ means (A) any individual, cor22 poration, partnership, firm, association, trust, estate,

23 public or private institution, any State or any politi24 cal subdivision thereof, or any political entity within

25 a State, any foreign government or nation or any
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1 agency, instrumentality or political subdivision of

2 any such government or nation, or other entity; and

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

4 agency of the foregoing; and

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

6 not listed in a Schedule in the Annex on Chemicals

7 of the Chemical Weapons Convention, which can

8 produce rapidly in humans sensory irritation or dis9 abling physical effects which disappear within a

10 short time following termination of exposure.

11 ‘‘Nothing in paragraphs (3) or (4) of this section shall

12 be construed to limit verification activities pursuant to

13 Part X or Part XI of the Annex on Implementation and

14 Verification of the Chemical Weapons Convention.’’.

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

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

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

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

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

20 following new item:

‘‘11A. CHEMICAL WEAPONS 227.’’

21 SEC. 202. EFFECTIVE DATE.

22 This title shall take effect on the date the Chemical

23 Weapons Convention enters into force for the United

24 States.
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1 SEC. 203. RESTRICTIONS ON SCHEDULED CHEMICALS.

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

3 for any person, or any national of the United States lo4 cated outside the United States, to produce, acquire, re5 tain, transfer or use a chemical listed on Schedule 1 of

6 the Annex on Chemicals of the Chemical Weapons Conven7 tion, unless—

8 (1) the chemicals are applied to research, medi9 cal, pharmaceutical or protective purposes;

10 (2) the types and quantities of chemicals are

11 strictly limited to those that can be justified for such

12 purposes; and

13 (3) the amount of such chemicals per person at

14 any given time for such purposes does not exceed a

15 limit to be determined by the United States National

16 Authority, but in any case, does not exceed one met17 ric ton.

18 (b) EXTRATERRITORIAL ACTS.

19 (1) It shall be unlawful for any person, or any

20 national of the United States located outside the

21 United States, to produce, acquire, retain or use a

22 chemical listed on Schedule 1 of the Annex on

23 Chemicals of the Chemical Weapons Convention out24 side the territories of the states parties to the Con25 vention or to transfer such chemicals to any person

26 located outside the territory of the United States,
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1 except as provided for in the Convention for transfer

2 to a person located in the territory of another State

3 Party to the Convention.

4 (2) Beginning three years after the entry into

5 force of the Chemical Weapons Convention, it shall

6 be unlawful for any person, or any national of the

7 United States located outside the United States, to

8 transfer a chemical listed on schedule 2 of the

9 Annex on Chemicals of the Convention to any person

10 located outside the territory of a State Party to the

11 Convention or to receive such a chemical from any

12 person located outside the territory of a State Party

13 to the Convention.

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

15 United States over the prohibited activity in subsections

16 (a) and (b) if (1) the prohibited activity takes place in

17 the United States or (2) the prohibited activity takes place

18 outside of the United States and is committed by a na19 tional of the United States.

20 TITLE III—REPORTING

21 SEC. 301. REPORTING OF INFORMATION.

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

23 promulgate regulations under which each person who pro24 duces, processes, consumes, exports or imports, or pro25 poses to produce, process, consume, export or import, a
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1 chemical substance subject to the Chemical Weapons Con2 vention shall maintain and permit access to such records

3 and shall submit to the Department of Commerce such

4 reports as the United States National Authority may rea5 sonably require pursuant to the Chemical Weapons Con6 vention. The Department of Commerce shall promulgate

7 regulations pursuant to this title expeditiously, taking into

8 account the written decisions issued by the Organization

9 for the Prohibition of Chemical Weapons, and; may amend

10 or change such regulations as necessary.

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

12 United States National Authority shall not require any re13 porting that is unnecessary, or duplicative of reporting re14 quired under any other Act. Agencies and departments

15 shall coordinate their actions with other agencies and de16 partments to avoid duplication of reporting by the affected

17 persons under this Act or any other Act.

18 SEC. 302. CONFIDENTIALITY OF INFORMATION.

19 (a) FREEDOM OF INFORMATION ACT EXEMPTION

20 FOR CERTAIN CHEMICAL WEAPONS CONVENTION INFOR21 MATION.—Any information reported to, or otherwise ob22 tained by, the United States National Authority, the De23 partment of Commerce, or any other agency or depart24 ment under this Act or under the Chemical Weapons Con-
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1 vention shall not be required to be publicly disclosed pur2 suant to section 552 of Title 5, United States Code.

3 (b) PROHIBITED DISCLOSURE AND EXCEPTIONS.—

4 Information exempt from disclosure under subsection (a)

5 shall not be published or disclosed, except that such infor6 mation—

7 (1) shall be disclosed or otherwise provided to

8 the Technical Secretariat or other States Parties to

9 the Chemical Weapons Convention in accordance

10 with the Convention, in particular, the provisions of

11 the Annex on the Protection of Confidential Infor12 mation;

13 (2) shall be made available to any committee or

14 subcommittee of Congress of appropriate jurisdiction

15 upon the written request of the chairman or ranking

16 minority member of such committee or subcommit17 tee, except that no such committee or subcommittee,

18 or member thereof, shall disclose such information

19 or material;

20 (3) shall be disclosed to other agencies or de21 partments for law enforcement purposes with regard

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

23 or otherwise provided when relevant in any proceed24 ing under this Act or any other Act, except that dis25 closure or provision in such a proceeding shall be
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1 made in such manner as to preserve confidentiality

2 to the extent practicable without impairing the pro3 ceeding; and

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

5 categories of information, if the United States Na6 tional Authority determines that such disclosure is

7 in the national interest.

8 (c) NOTICE OF DISCLOSURE.—If the United States

9 National Authority, pursuant to subsection (b)(4), pro10 poses to publish or disclose or otherwise provide informa11 tion exempted from disclosure in subsection (a), the

12 United States National Authority shall, where appro13 priate, notify the person who submitted such information

14 of the intent to release such information. Where notice has

15 been provided, the United States National Authority may

16 not release such information until the expiration of 30

17 days after notice has been provided.

18 (d) CRIMINAL PENALTY FOR WRONGFUL DISCLO19 SURE.—Any officer or employee of the United States or

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

21 virtue of such employment or official position has obtained

22 possession of, or has access to, information the disclosure

23 or other provision of which is prohibited by subsection (a),

24 and who knowing that disclosure or provision of such in25 formation is prohibited by such subsection, willfully dis-
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1 closes or otherwise provides the information in any man2 ner to any person, including persons located outside the

3 territory of the United States, not entitled to receive it,

4 shall be fined under title 18, United States Code, or im5 prisoned for not more than five years, or both.

6 (e) INTERNATIONAL INSPECTORS.—The provisions of

7 this section on disclosure or provision of information shall

8 also apply to employees of the Technical Secretariat.

9 SEC. 303. PROHIBITED ACTS.

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

11 to (a) establish or maintain records, (b) submit reports,

12 notices, or other information to the Department of Com13 merce or the United States National Authority, or (c) per14 mit access to or copying of records, as required by this

15 Act or a regulation thereunder.

16 TITLE IV—INSPECTIONS

17 SEC. 401. INSPECTIONS PURSUANT TO ARTICLE VI OF THE

18 CHEMICAL WEAPONS CONVENTION.

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

20 Act—

21 (1) any duly designated member of an inspec22 tion team of the Technical Secretariat may inspect

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

24 the United States subject to inspection pursuant to

25 the Chemical Weapons Convention; and
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1 (2) the National Authority shall designate rep2 resentatives who may accompany members of an in3 spection team of the Technical Secretariat during

4 the inspection specified in paragraph (1). The num5 ber of duly designated representatives shall be kept

6 to the minimum necessary.

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

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

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

10 charge of the premises to be inspected, except that failure

11 to receive a notice shall not be a bar to the conduct of

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

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

14 as possible after the United States National Authority re15 ceives it from the Technical Secretariat. The notice shall

16 include all appropriate information supplied by the Tech17 nical Secretariat to the United States National Authority

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

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

20 sought, including, for challenge inspections pursuant to

21 article IX of the Chemical Weapons Convention, appro22 priate evidence or reasons provided by the requesting

23 State Party to the Convention with regard to its concerns

24 about compliance with the Chemical Weapons Convention

25 at the facility or location. A separate notice shall be given
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1 for each such inspection, but a notice shall not be required

2 for each entry made during the period covered by the in3 spection.

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

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

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

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

8 agencies or departments, shall present appropriate creden9 tials before the inspection is commenced.

10 (d) TIME FRAME FOR INSPECTIONS.—Consistent

11 with the provisions of the Chemical Weapons Convention,

12 each inspection shall be commenced and completed with

13 reasonable promptness and shall be conducted at reason14 able times, within reasonable limits, and in a reasonable

15 manner. The Department of Commerce shall endeavor to

16 ensure that, to the extent possible, each inspection is com17 menced, conducted and concluded during ordinary work18 ing hours, but no inspection shall be prohibited or other19 wise disrupted for commencing, continuing or concluding

20 during other hours. However, nothing in this subsection

21 shall be interpreted as modifying the time frames estab22 lished in the Chemical Weapons Convention.

23 (e) SCOPE.—

24 (1) Except as provided in paragraph (2) of this

25 subsection and subsection (f), an inspection con-
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1 ducted under this title may extend to all things with2 in the premises inspected (including records, files,

3 papers, processes, controls, structures and vehicles)

4 related to whether the requirements of the Chemical

5 Weapons Convention applicable to such premises

6 have been complied with.

7 (2) To the extent possible consistent with the

8 obligations of the United States pursuant to the

9 Chemical Weapons Convention, no inspection under

10 this title shall extend to—

11 (A) financial data;

12 (B) sales and marketing data (other than

13 shipment data);

14 (C) pricing data;

15 (D) personnel data;

16 (E) research data;

17 (F) patent data;

18 (G) data maintained for compliance with

19 environmental or occupational health and safety

20 regulations; or

21 (H) personnel and vehicles entering and

22 personnel and personal passenger vehicles

23 exiting the facility.

24 (f) FACILITY AGREEMENTS.—
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1 (1) Inspections of plants, plant sites, or other

2 facilities or locations for which the United States

3 has a facility agreement with the Organization for

4 the Prohibition of Chemical Weapons shall be con5 ducted in accordance with the facility agreement.

6 (2) Facility agreements shall be concluded for

7 plants, plant sites, or other facilities or locations

8 that are subject to inspection pursuant to paragraph

9 4 of article VI of the Chemical Weapons Convention

10 unless the owner and the operator, occupant or

11 agent in charge of the facility and the Technical

12 Secretariat agree that such an agreement is not nec13 essary. Facility agreements should be concluded for

14 plants, plant sites, or other facilities or locations

15 that are subject to inspection pursuant to para16 graphs 5 or 6 of article VI of the Chemical Weapons

17 Convention if so requested by the owner and the op18 erator, occupant or agent in charge of the facility.

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

20 agent in charge of a facility shall be notified prior

21 to the development of the agreement relating to that

22 facility and, if they so request, may participate in

23 the preparations for the negotiation of such an

24 agreement. To the extent practicable consistent with

25 the Chemical Weapons Convention, the owner and
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1 the operator, occupant or agent in charge of a facil2 ity may observe negotiations of the agreement be3 tween the United States and the Organization for

4 the Prohibition of Chemical Weapons concerning

5 that facility.

6 (g) SAMPLING AND SAFETY.—

7 (1) The Department of Commerce is authorized

8 to require the provision of samples to a member of

9 the inspection team of the Technical Secretariat in

10 accordance with the provisions of the Chemical

11 Weapons Convention. The owner or the operator, oc12 cupant or agent in charge of the premises to be in13 spected shall determine whether the sample shall be

14 taken by representatives of the premises or the in15 spection team or other individuals present.

16 (2) In carrying out their activities, members of

17 the inspection team of the Technical Secretariat and

18 representatives of agencies or departments accom19 panying the inspection team shall observe safety reg20 ulations established at the premises to be inspected,

21 including those for protection of controlled environ22 ments within a facility and for personal safety.

23 (h) COORDINATION.—To the extent possible consist24 ent with the obligations of the United States pursuant to

25 the Chemical Weapons Convention, the representative of
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1 the United States National Authority, the Department of

2 Commerce and any other agency or department, if

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

4 or agent in charge of the premises to be inspected in inter5 acting with the members of the inspection team of the

6 Technical Secretariat.

7 SEC. 402. OTHER INSPECTIONS PURSUANT TO THE CHEMI8 CAL WEAPONS CONVENTION AND LEAD

9 AGENCY

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

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

12 authorized by the Chemical Weapons Convention. For all

13 inspections other than those conducted pursuant to para14 graphs 4, 5 or 6 of Article VI of the Convention, the term

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

16 ‘‘Lead Agency’’ in section 401.

17 (b) LEAD AGENCY.—For the purpose of this title, the

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

19 designated by the President or the designee of the Presi20 dent to exercise the functions and powers set forth in the

21 specific provision, based, inter alia, on the particular re22 sponsibilities of the agency or department within the Unit23 ed States Government and the relationship of the agency

24 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.—

8 (1) (A) Any person who violates a provision of

9 section 203 of this Act shall be liable to the Untied

10 States for a civil penalty in an amount not to exceed

11 $50,000 for each such violation.

12 (B) Any person who violates a provision of sec13 tion 303 of this Act shall be liable to the United

14 States for a civil penalty in an amount not to exceed

15 $5,000 for each such violation.

16 (C) Any person who violates a provision of section

17 403 of this Act shall be liable to the United States for

18 a civil penalty in an amount not to exceed $25,000 for

19 each such violation. For purposes of this subsection, each

20 day such a violation of section 403 continues shall con21 stitute a separate violation of section 403.

22 (2) (A) A civil penalty for a violation of section

23 203, 303 or 403 of this Act shall be assessed by the

24 Lead Agency by an order made on the record after

25 opportunity (provided in accordance with this sub26 paragraph) for a hearing in accordance with section
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1 554 of title 5, United States Code. Before issuing

2 such an order, the Lead Agency shall give written

3 notice to the person to be assessed a civil penalty

4 under such order of the Lead Agency’s proposal to

5 issue such order and provide such person an oppor6 tunity to request, within 15 days of the date the no7 tice is received by such person, such a hearing on

8 the order.

9 (B) In determining the amount of a civil pen10 alty, the Lead Agency shall take into account the

11 nature, circumstances, extent and gravity of the vio12 lation or violations and, with respect to the violator,

13 ability to pay, effect on ability to continue to do

14 business, any history of prior such violations, the de15 gree of culpability, the existence of an internal com16 pliance program, and such other matters as justice

17 may require.

18 (C) The Lead Agency may compromise, modify

19 or remit, with or without conditions, any civil pen20 alty which may be imposed under this subsection.

21 The amount of such penalty, when finally deter22 mined, or the amount agreed upon in compromise,

23 maybe deducted from any sums owing by the United

24 States to the person charged.
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1 (3) Any person who requested in accordance

2 with paragraph (2)(A) a hearing respecting the as3 sessment of a civil penalty and who is aggrieved by

4 an order assessing a civil penalty may file a petition

5 for judicial review of such order with the United

6 States Court of Appeals for the District of Columbia

7 Circuit or for any other circuit in which such person

8 resides or transacts business. Such a petition may be

9 filed only within the 30-day period beginning on the

10 date the order making such assessment was issued.

11 (4) If any person fails to pay an assessment of

12 a civil penalty—

13 (A) after the order making the assessment

14 has become a final order and if such person

15 does not file a petition for judicial review of the

16 order in accordance with paragraph (3); or

17 (B) after a court in an action brought

18 under paragraph (3) has entered a final judg19 ment in favor of the Lead Agency;

20 the Attorney General shall recover the amount as21 sessed (plus interest at currently prevailing rates

22 from the date of the expiration of the 30-day period

23 referred to in paragraph (3) or the date of such final

24 judgment, as the case may be) in an action brought

25 in any appropriate district court of the United
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1 States. In such an action, the validity, amount and

2 appropriateness of such penalty shall not be subject

3 to review.

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

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

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

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

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

9 not more than two years, or both.

10 SEC. 405. SPECIFIC ENFORCEMENT.

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

12 States shall have jurisdiction over civil actions to—

13 (1) restrain any violation of section 203, 303 or

14 403 of this Act; and

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

16 or under this Act or the Chemical Weapons Conven17 tion.

18 (b) CIVIL ACTIONS.—A civil action described in sub19 section (a) may be brought—

20 (1) in the case of a civil action described in sub21 section (a)(1), in the United States district court for

22 the judicial district wherein any act, omission, or

23 transaction constituting a violation of section 203,

24 303 or 403 of this Act occurred or wherein the de25 fendant is found or transacts business; or
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1 (2) in the case of a civil action described in sub2 section (a)(2), in the United States district court for

3 the judicial district wherein the defendant is found

4 or transacts business.

5 In any such civil action process may be served on a defend6 ant wherever the defendant may reside or may be found,

7 whether the defendant resides or may be found within the

8 United States or elsewhere.

9 SEC. 406. LEGAL PROCEEDINGS.

10 (a) WARRANTS.—

11 (1) The Lead Agency shall seek the consent of

12 the owner or the operator, occupant or agent in

13 charge of the premises to be inspected prior to the

14 initiation of any inspection. Before or after seeking

15 such consent, the Lead Agency may seek a search

16 warrant from any official authorized to issue search

17 warrants. Proceedings regarding the issuance of a

18 search warrant shall be conducted ex parte, unless

19 otherwise requested by the Lead Agency. The Lead

20 Agency shall provide to the official authorized to

21 issue search warrants all appropriate information

22 supplied by the Technical Secretariat to the United

23 States National Authority regarding the basis for

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

25 or location for the type of inspection sought, includ-
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1 ing, for challenge inspections pursuant to article IX

2 of the Chemical Weapons Convention, appropriate

3 evidence or reasons provided by the requesting state

4 party to the Convention with regard to its concerns

5 about compliance with the Chemical Weapons Con6 vention at the facility or location. The Lead Agency

7 shall also provide any other appropriate information

8 available to it relating to the reasonableness of the

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

10 location for the inspection.

11 (2) The official authorized to issue search war12 rants shall promptly issue a warrant authorizing the

13 requested inspection upon an affidavit submitted by

14 the Lead Agency showing that—

15 (A) the Chemical Weapons Convention is

16 in force for the United States;

17 (B) the plant site, plant, or other facility

18 or location sought to be inspected is subject to

19 the specific type of inspection requested under

20 the Chemical Weapons Convention;

21 (C) the procedures established under the

22 Chemical Weapons Convention and this Act for

23 initiating an inspection have been complied

24 with; and
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1 (D) the Lead Agency will ensure that the

2 inspection is conducted in a reasonable manner

3 and will not exceed the scope or duration set

4 forth in or authorized by the Chemical Weapons

5 Convention or this Act.

6 (3) The warrant shall specify the type of in7 spection authorized; the purpose of the inspection;

8 the type of plant site, plant, or other facility or loca9 tion to be inspected; to the extent possible, the

10 items, documents and areas that may be inspected;

11 the earliest commencement and latest concluding

12 dates and times of the inspection; and the identities

13 of the representatives of the Technical Secretariat, if

14 known, and, if applicable, the representatives of

15 agencies or departments.

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

17 Agency may by subpoena require the attendance and testi18 mony of witnesses and the production of reports, papers,

19 documents, answers to questions and other information

20 that the Lead Agency deems necessary. Witnesses shall

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

22 in the courts of the United States. In the event of contu23 macy, failure or refusal of any person to obey any such

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

25 venue is proper shall have jurisdiction to order any such
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1 person to comply with such subpoena. Any failure to obey

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

3 a contempt thereof.

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

5 shall issue an injunction or other order that would limit

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

7 United States National Authority or the Lead Agency to

8 facilitate, inspections as required or authorized by the

9 Chemical Weapons Convention.

10 SEC. 407. AUTHORITY.

11 (a) REGULATIONS.—The Lead Agency may issue

12 such regulations as are necessary to implement and en13 force this title and the provisions of the Chemical Weapons

14 Convention, and amend or revise them as necessary.

15 (b) ENFORCEMENT.—The Lead Agency may des16 ignate officers or employees of the agency or department

17 to conduct investigations pursuant to this Act. In conduct18 ing such investigations, those officers or employees may,

19 to the extent necessary or appropriate for the enforcement

20 of this Act, or for the imposition of any penalty or liability

21 arising under this Act, exercise such authorities as are

22 conferred upon them by other laws of the United States.

23 SEC. 408. SAVING PROVISION.

24 The purpose of this Act is to enable the United States

25 to comply with its obligations under the Chemical Weap-
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1 ons Convention. Accordingly, in addition to the authorities

2 set forth in this Act, the President is authorized to issue

3 such executive orders, directives or regulations as are nec4 essary to fulfill the obligations of the United States under

5 the Chemical Weapons Convention, provided such execu6 tive orders, directives or regulations do not exceed the re7 quirements specified in the Chemical Weapons Conven8 tion.

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