II

103D CONGRESS

2D SESSION S. 2221

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

JUNE 21 (legislative day, JUNE 7), 1994

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 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.—

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

13 means the Convention on the Prohibition of the De14 velopment, Production, Stockpiling and Use of

15 Chemical Weapons and on Their Destruction,

16 opened for signature on January 13, 1993.

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

18 has the same meaning given such term in section

19 101(a)(22) of the Immigration and Nationality Act

20 (8 U.S.C. 1101(a)(22)).

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

22 geographical sense, includes all places under the ju23 risdiction or control of the United States, includ24 ing—
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1 (A) any of the places within the provisions

2 of section 101(41) of the Federal Aviation Act

3 of 1958, as amended (49 U.S.C. App. Sec.

4 1301(41)),

5 (B) any public aircraft or civil aircraft of

6 the United States, as such terms are defined in

7 sections 101 (36) and (18) of the Federal Avia8 tion Act of 1958, as amended (49 U.S.C. App.

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

10 (C) any vessel of the United States, as

11 such term is defined in section 3(b) of the Mar12 itime Drug Enforcement Act, as amended (46

13 U.S.C. App. Sec. 1903(b)).

14 (4) The term ‘‘person,’’ except as used in sec15 tion 201 of this Act and as set forth below, means—

16 (A) any individual, corporation, partner17 ship, firm, association, trust, estate, public or

18 private institution, any State or any political

19 subdivision thereof, or any political entity with20 in a State, any foreign government or nation or

21 any agency, instrumentality or political subdivi22 sion of any such government or nation, or other

23 entity located in the United States; and
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1 (B) any legal successor, representative,

2 agent or agency of the foregoing located in the

3 United States.

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

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

6 ‘‘person’’ as used in the phrases ‘‘person lo7 cated outside the territory’’ in sections 203(b),

8 203(c) and 302(c) of this Act and ‘‘person lo9 cated in the territory’’ in section 203(b) of this

10 Act.

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

12 the Technical Secretariat of the Organization for the

13 Prohibition of Chemical Weapons established by the

14 Chemical Weapons Convention.

15 SEC. 6. SEVERABILITY.

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

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

18 the remainder of this Act, or the application of such provi19 sion to persons or circumstances other than those as to

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

21 TITLE I—NATIONAL AUTHORITY

22 SEC. 101. ESTABLISHMENT.

23 Pursuant to paragraph 4 of article VII of the Chemi24 cal Weapons Convention, the President or the designee of

25 the President shall establish the ‘‘United States National
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1 Authority’’ to, inter alia, serve as the national focal point

2 for effective liaison with the Organization for the Prohibi3 tion of Chemical Weapons and other States Parties to the

4 Convention.

5 TITLE II—APPLICATION OF CONVENTION PRO6 HIBITIONS TO NATURAL AND LEGAL PER7 SONS

8 SEC. 201. CRIMINAL PROVISIONS.

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

10 Code, is amended by—

11 (1) redesignating chapter 11A relating to child

12 support as chapter 11B; and

13 (2) inserting after chapter 11 relating to brib14 ery, graft and conflicts of interest the following new

15 chapter:

16 ‘‘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.

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

18 TO CHEMICAL WEAPONS.

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

20 (b), whoever knowingly develops, produces, otherwise ac21 quires, stockpiles, retains, directly or indirectly transfers,

22 uses, owns or possesses any chemical weapon, or know-
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1 ingly assists, encourages or induces, in any way, any per2 son to do so, or attempts or conspires to do so, shall be

3 fined under this title or imprisoned for life or any term

4 of years, or both.

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

6 the retention, ownership or possession of chemical weapon,

7 that is permitted by the Chemical Weapons Convention

8 pending the weapon’s destruction, by any agency or de9 partment of the United States. This exclusion shall apply

10 to any person, including members of the Armed Forces

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

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

13 a chemical weapon, unless that person knows or should

14 have known that such retention, ownership or possession

15 is not permitted by the Chemical Weapons Convention.

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

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

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

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

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

21 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.—

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

6 Attorney General may request the issuance, in the

7 same manner as provided for a search warrant, of

8 a warrant authorizing the seizure of any chemical

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

10 that is of a type or quantity that under the cir11 cumstances is inconsistent with the purposes not

12 prohibited under the Chemical Weapons Convention.

13 ‘‘(2) In exigent circumstances, seizure and de14 struction of any such chemical weapon described in

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

16 upon probable cause without the necessity for a war17 rant.

18 ‘‘(b) PROCEDURE FOR FORFEITURE AND DESTRUC19 TION.—Property seized pursuant to subsection (a) shall

20 be forfeited to the United States. Except as inconsistent

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

22 to civil forfeitures shall extend to a seizure or forfeiture

23 under this section. The Attorney General shall provide for

24 the destruction or other appropriate disposition of any
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1 chemical weapon seized and forfeited pursuant to this sec2 tion.

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 that 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 ‘‘(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;
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1 (2) the types and quantities of chemicals are

2 strictly limited to those that can be justified for such

3 purposes; and

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

5 any given time for such purposes does not exceed a

6 limit to be determined by the United States National

7 Authority, but in any case, does not exceed one met8 ric ton.

9 (b) EXTRATERRITORIAL ACTS.—

10 (1) It shall be unlawful for any person or any

11 national of the United States located outside the

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

13 chemical listed on Schedule 1 of the Annex on

14 Chemicals of the Chemical Weapons Convention out15 side the territories of the States Parties to the Con16 vention or to transfer such chemicals to any person

17 located outside the territory of the United States,

18 except as provided for in the Convention for transfer

19 to a person located in the territory of another State

20 Party to the Convention.

21 (2) Beginning three years after the entry into

22 force of the Chemical Weapons Convention, it shall

23 be unlawful for any person or any national of the

24 United States located outside the United States to

25 transfer a chemical listed on Schedule 2 of the
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1 Annex on Chemical of the Convention to any person

2 located outside the territory of a State Party to the

3 Convention or to receive such a chemical from any

4 person located outside the territory of a State Party

5 to the Convention.

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

7 United States over the prohibited activity in subsections

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

9 the United States or (2) the prohibited activity taken place

10 outside of the United States and is committed by a na11 tional of the United States.

12 TITLE III—DECLARATIONS BY CHEMICAL

13 INDUSTRY

14 SEC. 301. REPORTING OF INFORMATION.

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

16 promulgate regulations under which each person who pro17 duces, processes, consumes, exports or imports, or pro18 poses to produce, process, consume, export or import, a

19 chemical substance subject to the Chemical Weapons Con20 vention shall maintain and permit access to such records

21 and shall submit to the Department of Commerce such

22 reports as the United States National Authority may rea23 sonably require pursuant to the Chemical Weapons Con24 vention. The Department of Commerce shall promulgate
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1 regulations pursuant to this title expeditiously, and may

2 amend or change such regulations as necessary.

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

4 United States National Authority shall not require any re5 porting that is unnecessary, or duplicative of reporting re6 quired under any other Act. Agencies and department

7 shall coordinate their actions with other agencies and de8 partments to avoid duplication of reporting by the affected

9 persons under this Act or any other Act.

10 SEC. 302. DISCLOSURE OF INFORMATION ON MATERIALS.

11 (a) IN GENERAL.—Any information or materials re12 ported to, or otherwise obtained by, the United States Na13 tional Authority or the Department of Commerce, or any

14 other agency or department under this Act or the Chemi15 cal Weapons Convention may be withheld from public dis16 closure or provision only to the extent permitted by law.

17 Information or materials obtained from declarations or in18 spections required by the Chemical Weapons Convention,

19 that are not already in the public domain, shall be with20 held from public disclosure or provision and shall not be

21 required to be disclosed pursuant to section 552 of title

22 5, United States Code, except that such information or

23 material—

24 (1) shall be disclosed or otherwise provided to

25 the Technical Secretariat or other States Parties to
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1 the Chemical Weapons Convention in accordance

2 with the Convention, in particular, the provisions of

3 the Annex on the Protection of Confidential Infor4 mation;

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

6 subcommittee of Congress of appropriate jurisdiction

7 upon the written request of the chairman or ranking

8 minority member of such committee or subcommit9 tee, except that no such committee or subcommittee,

10 or member thereof, shall disclose such information

11 or material;

12 (3) shall be disclosed to other agencies or de13 partments for law enforcement purposes with regard

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

15 or otherwise provided when relevant in any proceed16 ing under this Act or any other Act, except that dis17 closure or provision in such a proceeding shall be

18 made in such manner as to preserve confidentiality

19 to the extent practicable without impairing the pro20 ceeding; and

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

22 categories of information, if the United States Na23 tional Authority determines that such disclosure is

24 in the national interest.
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1 (b) NOTICE OF DISCLOSURE.—If the United States

2 National Authority, pursuant to subsection (a)(4), pro3 poses to publish or disclose or otherwise provide informa4 tion or materials exempted from disclosure in subsection

5 (a), the United States National Authority shall, where ap6 propriate, notify the person who submitted such informa7 tion or materials of the intent to release such information

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

9 States National Authority may not release such informa10 tion or materials until the expiration of 30 days after no11 tice has been provided.

12 (c) CRIMINAL PENALTY FOR WRONGFUL DISCLO13 SURE.—Any officer or employee of the United States or

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

15 virtue of such employment or official position has obtained

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

17 the disclosure or other provision of which is prohibited by

18 subsection (a), and who knowing that disclosure or provi19 sion of such information or materials is prohibited by such

20 subsection, willfully discloses or otherwise provides the in21 formation or materials in any manner to any person, in22 cluding persons located outside the territory of the United

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

24 18, United States Code, or imprisoned for not more than

25 five years, or both.
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1 (d) INTERNATIONAL INSPECTORS.—The provisions of

2 this section on disclosure or provision of information or

3 materials shall also apply to employees of the Technical

4 Secretariat.

5 SEC. 303. PROHIBITED ACTS.

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

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

8 notices, or other information to the Department of Com9 merce or the United States National Authority, or (c) per10 mit access to or copying of records, as required by this

11 Act or a regulation thereunder.

12 TITLE IV—INSPECTIONS

13 SEC. 401. INSPECTIONS OF CHEMICAL INDUSTRY.

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

15 Act—

16 (1) any duly designated member of an inspec17 tion team of the Technical Secretariat may inspect

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

19 the United States subject to inspection pursuant to

20 the Chemical Weapons Convention; and

21 (2) any duly designated representative of an

22 agency or department may accompany members of

23 an inspection team of the Technical Secretariat dur24 ing the inspection specified in paragraph (1).
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1 (b) NOTICE.—An inspection pursuant to subsection

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

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

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

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

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

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

8 as possible after the United States National Authority re9 ceives it from the Technical Secretariat. The notice shall

10 include all appropriate information supplied by the Tech11 nical Secretariat to the United States National Authority

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

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

14 sought, including, for challenge inspections pursuant to

15 Article IX of the Chemical Weapons Convention, appro16 priate evidence or reasons provided by the requesting

17 State Party to the Convention with regard to its concerns

18 about compliance with the Chemical Weapons Convention

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

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

21 for each entry made during the period covered by the in22 spection.

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

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

25 present, a member of the inspection team of the Technical
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1 Secretariat, as well as, if present, the representatives of

2 agencies or departments, shall present appropriate creden3 tials before the inspection is commenced.

4 (d) TIME FRAME FOR INSPECTIONS.—Consistant

5 with the provisions of the Chemical Weapons Convention,

6 each inspection shall be commenced and completed with

7 reasonable promptness and shall be conducted at reason8 able times, within reasonable limits, and in a reasonable

9 manner. The Department of Commerce shall endeavor to

10 ensure that, to the extent possible, each inspection is com11 menced, conducted and concluded during ordinary work12 ing hours, but no inspection shall be prohibited or other13 wise disrupted for commencing, continuing or concluding

14 during other hours. However, nothing in this subsection

15 shall be interpreted as modifying the time frames estab16 lished in the Chemical Weapons Convention.

17 (e) SCOPE.—

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

19 subsection and subsection (f), an inspection con20 ducted under this title may extend to all things with21 in the premises inspected (including records, files,

22 papers, processes, controls, structures and entering

23 and existing vehicles) related to whether the require24 ments of the Chemical Weapons Convention applica25 ble to such premises have been complied with.
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1 (2) To the extent possible consistent with the

2 obligations of the United States pursuant to the

3 Chemical Weapons Convention, no inspection under

4 this title shall extend to—

5 (A) financial data;

6 (B) sales and marketing data (other than

7 shipment data);

8 (C) pricing data;

9 (D) personnel data;

10 (E) research data;

11 (F) patent data; or

12 (G) data maintained for compliance with

13 environmental or occupational health and safety

14 regulations.

15 (f) FACILITY AGREEMENTS.—

16 (1) Inspections of plants, plant sites, or other

17 facilities or locations for which the United States

18 has a facility agreement with the Organization for

19 the Prohibition of Chemical Weapons shall be con20 ducted in accordance with the facility agreement.

21 (2) Facility agreements shall be concluded for

22 plants, plant sites, or other facilities or locations

23 that are subject to inspection pursuant to paragraph

24 4 of Article VI of the Chemical Weapons Convention

25 unless the owner and the operator, occupant or
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1 agent in charge of the facility and the Technical

2 Secretariat agree that such an agreement is not nec3 essary. Facility agreements should be concluded for

4 plants, plant sites, or other facilities or locations

5 that are subject to inspection pursuant to paragraph

6 5 or 6 of Article VI of the Chemical Weapons Con7 vention if so requested by the owner and the opera8 tor, occupant or agent in charge of the facility.

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

10 agent in charge shall, to the extent practicable con11 sistent with the obligations of the United States

12 under the Chemical Weapons Convention, participate

13 in the negotiation of all facility agreements con14 cluded pursuant to the Convention.

15 (g) SAMPLING AND SAFETY.—

16 (1) The Department of Commerce is authorized

17 to require the provision of samples to a member of

18 the inspection team of the Technical Secretariat in

19 accordance with the provisions of the Chemical

20 Weapons Convention. The owner or the operator, oc21 cupant or agent in charge of the premises to be in22 spected shall determine whether the sample shall be

23 taken by representatives of the premises or the in24 spection team or other individuals present.
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1 (2) In carrying out their activities, members of

2 the inspection team of the Technical Secretariat and

3 representatives of agencies or departments accom4 panying the inspection team shall observe safety reg5 ulations established at the premises to be inspected,

6 including those for protection of controlled environ7 ments within a facility and for personal safety.

8 (h) COORDINATION.—To the extent possible consist9 ent with the obligations of the United States pursuant to

10 the Chemical Weapons Convention, the representatives of

11 the United States National Authority, the Department of

12 Commerce and any other agency or department, if

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

14 or agent in charge of the premises to be inspected in inter15 acting with the members of the inspection team of the

16 Technical Secretariat.

17 SEC. 402. OTHER INSPECTIONS AND LEAD AGENCY.

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

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

20 authorized by the Chemical Weapons Convention. For all

21 inspections other than those conducted pursuant to para22 graph 4, 5 or 6 of article VI of the Convention, the term

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

24 ‘‘Lead Agency’’ in section 401.
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1 (b) LEAD AGENCY.—For the purposes of this title,

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

3 designated by the President or the designee of the Presi4 dent to exercise the functions and powers set forth in the

5 specific provision, based, inter alia, on the particular re6 sponsibilities of the agency or department within the

7 United States Government and the relationship of the

8 agency or department to the premises to be inspected.

9 SEC. 403. PROHIBITED ACTS.

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

11 to permit entry or inspection, or to disrupt, delay or other12 wise impede an inspection as required by this Act or the

13 Chemical Weapons Convention.

14 SEC. 404. PENALTIES.

15 (a) CIVIL.—

16 (1) Any person who violates a provision of sec17 tion 203, 303 or 403 of this Act shall be liable to

18 the United States for a civil penalty in an amount

19 not to exceed $50,000 for each such violation. For

20 purposes of this subsection, each day such a viola21 tion of section 403 continues shall constitute a sepa22 rate violation of section 403.

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

24 203, 303 or 403 of this Act shall be assessed by the

25 Lead Agency by an order made on the record after
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1 opportunity (provided in accordance with this sub2 paragraph) for a hearing in accordance with section

3 554 of title 5, United States Code. Before issuing

4 such an order, the Lead Agency shall give written

5 notice to the person to be assessed a civil penalty

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

7 issue such order and provide such person an oppor8 tunity to request, within 15 days of the date the no9 tice is received by such person, such a hearing on

10 the order.

11 (B) In determining the amount of a civil pen12 alty, the Lead Agency shall take into account the

13 nature, circumstances, extent and gravity of the vio14 lation or violations and, with respect to the violator,

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

16 business, any history of prior such violations, the de17 gree of culpability, and such other matters as justice

18 may require.

19 (C) The Lead Agency may compromise, modify

20 or remit, with or without conditions, any civil pen21 alty which may be imposed under this subsection.

22 The amount of such penalty, when finally deter23 mined, or the amount agreed upon in compromise,

24 may be deducted from any sums owing by the

25 United 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 in2 spection 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 of 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 be

21 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 The lead agency may issue such regulations as are

12 necessary to implement this title and the provisions of the

13 Chemical Weapons Convention, and amend or revise them

14 as necessary. The lead agency shall have the authority to

15 appoint officials to issue warrants pursuant to section

16 406(a) authorizing inspections pursuant to this title.

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