[DOCID: f:publ277.105]
[[Page 112 STAT. 2681]]
*Public Law 105-277
105th Congress
An Act
Making omnibus consolidated and emergency appropriations for the fiscal
year ending September 30, 1999, and for other purposes. <<NOTE: Oct. 21,
1998 - [H.R. 4328]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in <<NOTE: Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999.>> Congress assembled,
[[Page 112 STAT. 2681-856]]
DIVISION <<NOTE: Chemical Weapons Convention Implementation Act of
1998. 22 USC 6701 note>> I--CHEMICAL WEAPONS CONVENTION
SECTION 1. SHORT TITLE.
This Division may be cited as the ``Chemical Weapons Convention
Implementation Act of 1998''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
TITLE I--GENERAL PROVISIONS
Sec. 101. Designation of United States National Authority.
Sec. 102. No abridgement of constitutional rights.
Sec. 103. Civil liability of the United States.
TITLE II--PENALTIES FOR UNLAWFUL ACTIVITIES SUBJECT TO THE JURISDICTION
OF THE UNITED STATES
Subtitle A--Criminal and Civil Penalties
Sec. 201. Criminal and civil provisions.
Subtitle B--Revocations of Export Privileges
Sec. 211. Revocations of export privileges.
TITLE III--INSPECTIONS
Sec. 301. Definitions in the title.
Sec. 302. Facility agreements.
Sec. 303. Authority to conduct inspections.
Sec. 304. Procedures for inspections.
Sec. 305. Warrants.
Sec. 306. Prohibited acts relating to inspections.
Sec. 307. National security exception.
Sec. 308. Protection of constitutional rights of contractors.
Sec. 309. Annual report on inspections.
Sec. 310. United States assistance in inspections at private facilities.
TITLE IV--REPORTS
Sec. 401. Reports required by the United States National Authority.
Sec. 402. Prohibition relating to low concentrations of schedule 2 and 3
chemicals.
Sec. 403. Prohibition relating to unscheduled discrete organic chemicals
and coincidental byproducts in waste streams.
Sec. 404. Confidentiality of information.
Sec. 405. Recordkeeping violations.
TITLE V--ENFORCEMENT
Sec. 501. Penalties.
Sec. 502. Specific enforcement.
Sec. 503. Expedited judicial review.
TITLE VI--MISCELLANEOUS PROVISIONS
Sec. 601. Repeal.
Sec. 602. Prohibition.
Sec. 603. Bankruptcy actions.
SEC. 3. <<NOTE: 22 USC 6701.>> DEFINITIONS.
In this Act:
[[Page 112 STAT. 2681-857]]
(1) Chemical weapon.--The term ``chemical weapon'' means the
following, together or separately:
(A) A toxic chemical and its precursors, except
where intended for a purpose not prohibited under this
Act as long as the type and quantity is consistent with
such a purpose.
(B) A munition or device, specifically designed to
cause death or other harm through toxic properties of
those toxic chemicals specified in subparagraph (A),
which would be released as a result of the employment of
such munition or device.
(C) Any equipment specifically designed for use
directly in connection with the employment of munitions
or devices specified in subparagraph (B).
(2) Chemical weapons convention; convention.--The terms
``Chemical Weapons Convention'' and ``Convention'' mean the
Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their
Destruction, opened for signature on January 13, 1993.
(3) Key component of a binary or multicomponent chemical
system.--The term ``key component of a binary or multicomponent
chemical system'' means the precursor which plays the most
important role in determining the toxic properties of the final
product and reacts rapidly with other chemicals in the binary or
multicomponent system.
(4) National of the united states.--The term ``national of
the United States'' has the same meaning given such term in
section 101(a)(22) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(22)).
(5) Organization.--The term ``Organization'' means the
Organization for the Prohibition of Chemical Weapons.
(6) Person.--The term ``person'', except as otherwise
provided, means any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, any
State or any political subdivision thereof, or any political
entity within a State, any foreign government or nation or any
agency, instrumentality or political subdivision of any such
government or nation, or other entity located in the United
States.
(7) Precursor.--
(A) In general.--The term ``precursor'' means any
chemical reactant which takes part at any stage in the
production by whatever method of a toxic chemical. The
term includes any key component of a binary or
multicomponent chemical system.
(B) List of precursors.--Precursors which have been
identified for the application of verification measures
under Article VI of the Convention are listed in
schedules contained in the Annex on Chemicals of the
Chemical Weapons Convention.
(8) Purposes not prohibited by this act.--The term
``purposes not prohibited by this Act'' means the following:
(A) Peaceful purposes.--Any peaceful purpose related
to an industrial, agricultural, research, medical, or
pharmaceutical activity or other activity.
(B) Protective purposes.--Any purpose directly
related to protection against toxic chemicals and to
protection against chemical weapons.
[[Page 112 STAT. 2681-858]]
(C) Unrelated military purposes.--Any military
purpose of the United States that is not connected with
the use of a chemical weapon and that is not dependent
on the use of the toxic or poisonous properties of the
chemical weapon to cause death or other harm.
(D) Law enforcement purposes.--Any law enforcement
purpose, including any domestic riot control purpose and
including imposition of capital punishment.
(9) Technical secretariat.--The term ``Technical
Secretariat'' means the Technical Secretariat of the
Organization for the Prohibition of Chemical Weapons established
by the Chemical Weapons Convention.
(10) Schedule 1 chemical agent.--The term `Schedule 1
chemical agent' means any of the following, together or
separately:
(A) O-Alkyl (<ls-thn-eq>C<INF>10</INF>, incl.
cycloalkyl) alkyl
(Me, Et, n-Pr or i-Pr)-phosphonofluoridates
(e.g. Sarin: O-Isopropyl
methylphosphonofluoridate Soman: O-Pinacolyl
methylphosphonofluoridate).
(B) O-Alkyl (<ls-thn-eq>C<INF>10</INF>, incl.
cycloalkyl) N,N-dialkyl
(Me, Et, n-Pr or i-Pr)-phosphoramidocyanidates
(e.g. Tabun: O-Ethyl N,N-dimethyl
phosphoramidocyanidate).
(C) O-Alkyl (H or <ls-thn-eq>C<INF>10</INF>, incl.
cycloalkyl) S-2-dialkyl
(Me, Et, n-Pr or i-Pr)-aminoethyl alkyl
(Me, Et, n-Pr or i-Pr) phosphonothiolates and
corresponding alkylated or protonated salts
(e.g. VX: O-Ethyl S-2-diisopropylaminoethyl
methyl phosphonothiolate).
(D) Sulfur mustards:
2-Chloroethylchloromethylsulfide
Mustard gas: (Bis(2-chloroethyl)sulfide
Bis(2-chloroethylthio)methane
Sesquimustard: 1,2-Bis(2-
chloroethylthio)ethane
1,3-Bis(2-chloroethylthio)-n-propane
1,4-Bis(2-chloroethylthio)-n-butane
1,5-Bis(2-chloroethylthio)-n-pentane
Bis(2-chloroethylthiomethyl)ether
O-Mustard: Bis(2-chloroethylthioethyl)ether.
(E) Lewisites:
Lewisite 1: 2-Chlorovinyldichloroarsine
Lewisite 2: Bis(2-chlorovinyl)chloroarsine
Lewisite 3: Tris (2-clorovinyl)arsine.
(F) Nitrogen mustards:
HN1: Bis(2-chloroethyl)ethylamine
HN2: Bis(2-chloroethyl)methylamine
HN3: Tris(2-chloroethyl)amine.
(G) Saxitoxin.
(H) Ricin.
(I) Alkyl (Me, Et, n-Pr or i-Pr)
phosphonyldifluorides
e.g. DF: Methylphosphonyldifluoride.
(J) O-Alkyl (H or >C<INF>10</INF>, incl.
cycloalkyl)O-2-dialkyl
(Me, Et, n-Pr or i-Pr)-aminoethyl alkyl
(Me, Et, n-Pr or i-Pr) phosphonites and
corresponding alkylated or protonated salts
e.g. QL: O-Ethyl O-2-diisopropylaminoethyl methylphosphonite.
(K) Chlorosarin: O-Isopropyl methylphosphonochloridate.
[[Page 112 STAT. 2681-859]]
(L) Chlorosoman: O-Pinacolyl methylphosphonochloridate.
(11) Schedule 2 chemical agent.--The term `Schedule 2 chemical
agent' means the following, together or separately:
(A) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl]
phosphorothiolate and corresponding alkylated or protonated salts.
(B) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene.
(C) BZ: 3-Quinuclidinyl benzilate
(D) Chemicals, except for those listed in Schedule 1, containing a
phosphorus atom to which is bonded one methyl, ethyl or propyl (normal
or iso) group but not further carbon atoms,
e.g. Methylphosphonyl dichloride Dimethyl methylphosphonate
Exemption: Fonofos: O-Ethyl S-phenyl ethylphosphonothiolothionate.
(E) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides.
(F) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr or i-
Pr)-phosphoramidates.
(G) arsenic trichloride.
(H) 2,2-Diphenyl-2-hydroxyacetic acid.
(I) Quinuclidine-3-ol.
(J) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and
corresponding protonated salts.
(K) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and
corresponding protonated salts
Exemptions: N,N-Dimethylaminoethanol and corresponding protonated
salts N,N-Diethylaminoethanol and corresponding protonated salts.
(L) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and
corresponding protonated salts.
(M) Thiodiglycol: Bis(2-hydroxyethyl)sulfide.
(N) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol.
(12) Schedule 3 chemical agent.--The term `Schedule 3 chemical
agent' means any of the following, together or separately:
(A) Phosgene: carbonyl dichloride.
(B) Cyanogen chloride.
(C) Hydrogen cyanide.
(D) Chloropicrin: trichloronitromethane.
(E) Phosphorous oxychloride.
(F) Phosphorous trichloride.
(G) Phosphorous pentachloride.
(H) Trimethyl phosphite.
(I) Triethyl phosphite.
(J) Dimethyl phosphite.
(K) Diethyl phosphite.
(L) Sulfur monochloride.
(M) Sulfur dichloride.
(N) Thionyl chloride.
(O) Ethyldiethanolamine.
(P) Methyldiethanolamine.
(Q) Triethanolamine.
(13) Toxic chemical.--
(A) In general.--The term ``toxic chemical'' means any chemical
which through its chemical action on life processes can cause death,
temporary incapacitation or permanent
harm to humans or animals. The term includes all such chemicals,
regardless of their origin or of their method of production, and
regardless of whether they are produced in facilities, in munitions or
elsewhere.
[[Page 112 STAT. 2681-860]]
(B) List of toxic chemicals.--Toxic chemicals which
have been identified for the application of verification
measures under Article VI of the Convention are listed
in schedules contained in the Annex on Chemicals of the
Chemical Weapons Convention.
(14) United states.--The term ``United States'' means the
several States of the United States, the District of Columbia,
and the commonwealths, territories, and possessions of the
United States and includes all places under the jurisdiction or
control of the United States, including--
(A) any of the places within the provisions of
paragraph (41) of section 40102 of title 49, United
States Code;
(B) any civil aircraft of the United States or
public aircraft, as such terms are defined in paragraphs
(17) and (37), respectively, of section 40102 of title
49, United States Code; and
(C) any vessel of the United States, as such term is
defined in section 3(b) of the Maritime Drug Enforcement
Act, as amended (46 U.S.C., App. sec. 1903(b)).
(15) Unscheduled discrete organic chemical.--The term
``unscheduled discrete organic chemical'' means any chemical not
listed on any schedule contained in the Annex on Chemicals of
the Convention that belongs to the class of chemical compounds
consisting of all compounds of carbon, except for its oxides,
sulfides, and metal carbonates.
TITLE I--GENERAL PROVISIONS
SEC. 101. <<NOTE: 22 USC 6711.>> DESIGNATION OF UNITED STATES NATIONAL
AUTHORITY.
(a) Designation.--Pursuant to paragraph 4 of Article VII of the
Chemical Weapons Convention, the President shall designate the
Department of State to be the United States National Authority.
(b) Purposes.--The United States National Authority shall--
(1) serve as the national focal point for effective liaison
with the Organization for the Prohibition of Chemical Weapons
and other States Parties to the Convention; and
(2) implement the provisions of this Act in coordination
with an interagency group designated by the President consisting
of the Secretary of Commerce, Secretary of Defense, Secretary of
Energy, the Attorney General, and the heads of agencies
considered necessary or advisable by the President.
(c) Director.--The Secretary of State shall serve as the Director
of the United States National Authority.
(d) Powers.--The Director may utilize the administrative
authorities otherwise available to the Secretary of State in carrying
out the responsibilities of the Director set forth in this Act.
(e) Implementation.--The President is authorized to implement and
carry out the provisions of this Act and the Convention and shall
designate through Executive order which agencies of the United States
shall issue, amend, or revise the regulations in order to implement this
Act and the provisions of the Convention. The Director of the United
States National Authority shall report to the Congress on the
regulations that have been issued, implemented, or revised pursuant to
this section.
[[Page 112 STAT. 2681-861]]
SEC. 102. NO <<NOTE: 22 USC 6712.>> ABRIDGEMENT OF CONSTITUTIONAL
RIGHTS.
No person may be required, as a condition for entering into a
contract with the United States or as a condition for receiving any
benefit from the United States, to
waive any right under the Constitution for any purpose related to this
Act or the Convention.
SEC. 103. <<NOTE: 22 USC 6713.>> CIVIL LIABILITY OF THE UNITED STATES.
(a) Claims for Taking of Property.--
(1) Jurisdiction of courts of the united states.--
(A) United states court of federal claims.--The
United States Court of Federal Claims shall, subject to
subparagraph (B), have jurisdiction of any civil action
or claim against the United States for any taking of
property without just compensation that occurs by reason
of the action of any officer or employee of the
Organization for the Prohibition of Chemical Weapons,
including any member of an inspection team of the
Technical Secretariat, or by reason of the action of any
officer or employee of the United States pursuant to
this Act or the Convention. For purposes of this
subsection, action taken pursuant to or under the color
of this Act or the Convention shall be deemed to be
action taken by the United States for a public purpose.
(B) District courts.--The district courts of the
United States shall have original jurisdiction,
concurrent with the United States Court of Federal
Claims, of any civil action or claim described in
subparagraph (A) that does not exceed $10,000.
(2) Notification.--Any person intending to bring a civil
action pursuant to paragraph (1) shall notify the United States
National Authority of that intent at least one year before
filing the claim in the United States Court of Federal Claims.
Action on any claim filed during that one-year period shall be
stayed. The one-year period following the notification shall not
be counted for purposes of any law limiting the period within
which the civil action may be commenced.
(3) Initial steps by united states government to seek
remedies.--During the period between a notification pursuant to
paragraph (2) and the filing of a claim covered by the
notification in the United States Court of Federal Claims, the
United States National Authority shall pursue all diplomatic and
other remedies that the United States National Authority
considers necessary and appropriate to seek redress for the
claim including, but not limited to, the remedies provided for
in the Convention and under this Act.
(4) Burden of proof.--In any civil action under paragraph
(1), the plaintiff shall have the burden to establish a prima
facie case that, due to acts or omissions of any official of the
Organization or any member of an inspection team of the
Technical Secretariat taken under the color of the Convention,
proprietary information of the plaintiff has been divulged or
taken without authorization. If the United States Court of
Federal Claims finds that the plaintiff has demonstrated such a
prima facie case, the burden shall shift to the United States to
disprove the plaintiff's claim. In deciding whether
[[Page 112 STAT. 2681-862]]
the plaintiff has carried its burden, the United States Court of
Federal Claims shall consider, among other things--
(A) the value of proprietary information;
(B) the availability of the proprietary information;
(C) the extent to which the proprietary information
is based on patents, trade secrets, or other protected
intellectual property;
(D) the significance of proprietary information; and
(E) the emergence of technology elsewhere a
reasonable time after the inspection.
(b) Tort Liability.--The district courts of the United States shall
have exclusive jurisdiction of civil actions for money damages for any
tort under the Constitution or any Federal or State law arising from the
acts or omissions of any officer or employee of the United States or the
Organization, including any member of an inspection team of the
Technical Secretariat, taken pursuant to or under color of the
Convention or this Act.
(c) Waiver of Sovereign Immunity of the United States.--In any
action under subsection (a) or (b), the United States may not raise
sovereign immunity as a defense.
(d) Authority for Cause of Action.--
(1) United states actions in united states district court.--
Notwithstanding any other law, the Attorney General of the
United States is authorized to bring an action in the United
States District Court for the District of Columbia against any
foreign nation for money damages resulting from that nation's
refusal to provide indemnification to the United States for any
liability imposed on the United States by virtue of the actions
of an inspector of the Technical Secretariat who is a national
of that foreign nation acting at the direction or the behest of
that foreign nation.
(2) United states actions in courts outside the united
states.--The Attorney General is authorized to seek any and all
available redress in any international tribunal for
indemnification to the United States for any liability imposed
on the United States by virtue of the actions of an inspector of
the Technical Secretariat, and to seek such redress in the
courts of the foreign nation from which the inspector is a
national.
(3) Actions brought by individuals and businesses.--
Notwithstanding any other law, any national of the United
States, or any business entity organized and operating under the
laws of the United States, may bring a civil action in a United
States District Court for money damages against any foreign
national or any business entity organized and operating under
the laws of a foreign nation for an unauthorized or unlawful
acquisition, receipt, transmission, or use of property by or on
behalf of such foreign national or business entity as a result
of any tort under the Constitution or any Federal or State law
arising from acts or omissions by any officer or employee of the
United States or any member of an inspection team of the
Technical Secretariat taken pursuant to or under the color of
the Convention or this Act.
(e) Recoupment.--
(1) Policy.--It is the policy of the United States to recoup
all funds withdrawn from the Treasury of the United States in
payment for any tort under Federal or State law or taking
[[Page 112 STAT. 2681-863]]
under the Constitution arising from the acts or omissions of any
foreign person, officer, or employee of the Organization,
including any member of an inspection team of the Technical
Secretariat, taken under color of the Chemical Weapons
Convention or this Act.
(2) Sanctions on foreign companies.--
(A) Imposition of sanctions.--The sanctions provided
in subparagraph (B) shall be imposed for a period of not
less than ten years upon--
(i) any foreign person, officer, or employee
of the Organization, including any member of an
inspection team of the Technical Secretariat, for
whose actions or omissions the United States has
been held liable for a tort or taking pursuant to
this Act; and
(ii) any foreign person or business entity
organized and operating under the laws of a
foreign nation which knowingly assisted,
encouraged or induced, in any way, a foreign
person described in clause (i) to publish,
divulge, disclose, or make known in any manner or
to any extent not authorized by the Convention any
United States confidential business information.
(B) Sanctions.--
(i) Arms export transactions.--The United
States Government shall not sell to a person
described in subparagraph (A) any item on the
United States Munitions List and shall terminate
sales of any defense articles, defense services,
or design and construction services to a person
described in subparagraph (A) under the Arms
Export Control Act.
(ii) Sanctions under export administration act
of 1979.--The authorities under section 6 of the
Export Administration Act of 1979 shall be used to
prohibit the export of any goods or technology on
the control list established pursuant to section
5(c)(1) of that Act to a person described in
subparagraph (A).
(iii) International financial assistance.--The
United States shall oppose any loan or financial
or technical assistance by international financial
institutions in accordance with section 701 of the
International Financial Institutions Act to a
person described in subparagraph (A).
(iv) Export-import bank transactions.--The
United States shall not give approval to
guarantee, insure, or extend credit, or to
participate in the extension of credit to a person
described in subparagraph (A) through the Export-
Import Bank of the United States.
(v) Private bank transactions.--Regulations
shall be issued to prohibit any United States bank
from making any loan or providing any credit to a
person described in subparagraph (A).
(vi) Blocking of assets.--The President shall
take all steps necessary to block any transactions
in any property subject to the jurisdiction of the
United States in which a person described in
subparagraph (A) has any interest whatsoever, for
the purpose of
[[Page 112 STAT. 2681-864]]
recouping funds in accordance with the policy in
paragraph (1).
(vii) Denial of landing rights.--Landing
rights in the United States shall be denied to any
private aircraft or air carrier owned by a person
described in subparagraph (A) except as necessary
to provide for emergencies in which the safety of
the aircraft or its crew or passengers is
threatened.
(3) Sanctions on foreign governments.--
(A) Imposition of sanctions.--Whenever the President
determines that persuasive information is available
indicating that a foreign country has knowingly
assisted, encouraged or induced, in any way, a person
described in paragraph (2)(A) to publish, divulge,
disclose, or make known in any manner or to any extent
not authorized by the Convention any United States
confidential business information, the President shall,
within 30 days after the receipt of such information by
the executive branch of Government, notify the Congress
in
writing of such determination and, subject to the requirements of
paragraphs (4) and (5), impose the sanctions provided under subparagraph
(B) for a period of not less than five years.
(B) Sanctions.--
(i) Arms export transactions.--The United
States Government shall not sell a country
described in subparagraph (A) any item on the
United States Munitions List, shall terminate
sales of any defense articles, defense services,
or design and construction services to that
country under the Arms Export Control Act, and
shall terminate all foreign military financing for
that country under the Arms Export Control Act.
(ii) Denial of certain licenses.--Licenses
shall not be issued for the export to the
sanctioned country of any item on the United
States Munitions List or commercial satellites.
(iii) Denial of assistance.--No appropriated
funds may be used for the purpose of providing
economic assistance, providing military assistance
or grant military education and training, or
extending military credits or making guarantees to
a country described in subparagraph (A).
(iv) Sanctions under export administration act
of 1979.--The authorities of section 6 of the
Export Administration Act of 1979 shall be used to
prohibit the export of any goods or technology on
the control list established pursuant to section
5(c)(1) of that Act to a country described in
subparagraph (A).
(v) International financial assistance.--The
United States shall oppose any loan or financial
or technical assistance by international financial
institutions in accordance with section 701 of the
International Financial Institutions Act to a
country described in subparagraph (A).
(vi) Termination of assistance under foreign
assistance act of 1961.--The United States shall
terminate all assistance to a country described in
[[Page 112 STAT. 2681-865]]
subparagraph (A) under the Foreign Assistance Act
of 1961, except for urgent humanitarian
assistance.
(vii) Private bank transactions.--The United
States shall not give approval to guarantee,
insure, or extend credit, or participate in the
extension of credit through the Export-Import Bank
of the United States to a country described in
subparagraph (A).
(viii) Private bank transactions.--Regulations
shall be issued to prohibit any United States bank
from making any loan or providing any credit to a
country described in subparagraph (A).
(ix) Denial of landing rights.--Landing rights
in the United States shall be denied to any air
carrier owned by a country described in
subparagraph (A), except as necessary to provide
for emergencies in which the safety of the
aircraft or its crew or passengers is threatened.
(4) Suspension of sanctions upon recoupment by payment.--
Sanctions imposed under paragraph (2) or (3) may be suspended if
the sanctioned person, business entity, or country, within the
period specified in that paragraph, provides full and complete
compensation to the United States Government, in convertible
foreign exchange or other mutually acceptable compensation
equivalent to the full value thereof, in satisfaction of a tort
or taking for which the United States has been held liable
pursuant to this Act.
(5) Waiver of sanctions on foreign countries.--The President
may waive some or all of the sanctions provided under paragraph
(3) in a particular case if he determines and certifies in
writing to the Speaker of the House of Representatives and the
Committee on Foreign Relations of the Senate that such waiver is
necessary to protect the national security interests of the
United States. The certification shall set forth the reasons
supporting the determination and shall take effect on the date
on which the certification is received by the Congress.
(6) Notification to congress.--Not later than five days
after sanctions become effective against a foreign person
pursuant to this Act, the President shall transmit written
notification of the imposition of sanctions against that foreign
person to the chairmen and ranking members of the Committee on
International Relations of the House of
Representatives and the Committee on Foreign Relations of the Senate.
(f) Sanctions for Unauthorized Disclosure of United States
Confidential Business Information.--The Secretary of State shall deny a
visa to, and the Attorney General shall exclude from the United States
any alien who, after the date of enactment of this Act--
(1) is, or previously served as, an officer or employee of
the Organization and who has willfully published, divulged,
disclosed, or made known in any manner or to any extent not
authorized by the Convention any United States confidential
business information coming to him in the course of his
employment or official duties, or by reason of any examination
or investigation of any return, report, or record made to or
filed with the Organization, or any officer or employee thereof,
such practice or disclosure having resulted in financial loses
[[Page 112 STAT. 2681-866]]
or damages to a United States person and for which actions or
omissions the United States has been found liable of a tort or
taking pursuant to this Act;
(2) traffics in United States confidential business
information, a proven claim to which is owned by a United States
national;
(3) is a corporate officer, principal, shareholder with a
controlling interest of an entity which has been involved in the
unauthorized disclosure of United States confidential business
information, a proven claim to which is owned by a United States
national; or
(4) is a spouse, minor child, or agent of a person
excludable under paragraph (1), (2), or (3).
(g) United States Confidential Business Information Defined.--In
this section, the term ``United States confidential business
information'' means any trade secrets or commercial or financial
information that is privileged and confidential--
(1) including--
(A) data described in section 304(e)(2) of this Act,
(B) any chemical structure,
(C) any plant design process, technology, or
operating method,
(D) any operating requirement, input, or result that
identifies any type or quantity of chemicals used,
processed, or produced, or
(E) any commercial sale, shipment, or use of a
chemical, or
(2) as described in section 552(b)(4) of title 5, United
States Code,
and that is obtained--
(i) from a United States person; or
(ii) through the United States Government or the conduct of an
inspection on United States territory under the Convention.
TITLE II--PENALTIES FOR UNLAWFUL ACTIVITIES SUBJECT TO THE JURISDICTION
OF THE UNITED STATES
Subtitle A--Criminal and Civil Penalties
SEC. 201. CRIMINAL AND CIVIL PROVISIONS.
(a) In General.--Part I of title 18, United States Code, is
amended by inserting after chapter 11A the following new chapter:
``CHAPTER 11B--CHEMICAL WEAPONS
``Sec.
``229. Prohibited activities.
``229A. Penalties.
``229B. Criminal forfeitures; destruction of weapons.
``229C. Individual self-defense devices.
``229D. Injunctions.
``229E. Requests for military assistance to enforce prohibition in
certain emergencies.
``229F. Definitions.
``Sec. 229. Prohibited activities
``(a) Unlawful Conduct.--Except as provided in subsection (b), it
shall be unlawful for any person knowingly--
[[Page 112 STAT. 2681-867]]
``(1) to develop, produce, otherwise acquire, transfer
directly or indirectly, receive, stockpile, retain, own,
possess, or use, or threaten to use, any chemical weapon; or
``(2) to assist or induce, in any way, any person to violate
paragraph (1), or to attempt or conspire to violate paragraph
(1).
``(b) Exempted Agencies and Persons.--
``(1) In general.--Subsection (a) does not apply to the
retention, ownership, possession, transfer, or receipt of a
chemical weapon by a department, agency, or other entity of the
United States, or by a person described in paragraph (2),
pending destruction of the weapon.
``(2) Exempted persons.--A person referred to in paragraph
(1) is--
``(A) any person, including a member of the Armed
Forces of the United States, who is authorized by law or
by an appropriate officer of the United States to
retain, own, possess, transfer, or receive the chemical
weapon; or
``(B) in an emergency situation, any otherwise
nonculpable person if the person is attempting to
destroy or seize the weapon.
``(c) Jurisdiction.--Conduct prohibited by subsection (a) is within
the jurisdiction of the United States if the prohibited conduct--
``(1) takes place in the United States;
``(2) takes place outside of the United States and is
committed by a national of the United States;
``(3) is committed against a national of the United States
while the national is outside the United States; or
``(4) is committed against any property that is owned,
leased, or used by the United States or by any department or
agency of the United States, whether the property is within or
outside the United States.
``Sec. 229A. Penalties
``(a) Criminal Penalties.--
``(1) In general.--Any person who violates section 229 of
this title shall be fined under this title, or imprisoned for
any term of years, or both.
``(2) Death penalty.--Any person who violates section 229 of
this title and by whose action the death of another person is
the result shall be punished by death or imprisoned for life.
``(b) Civil Penalties.--
``(1) In general.--The Attorney General may bring a civil
action in the appropriate United States district court against
any person who violates section 229 of this title and, upon
proof of such violation by a preponderance of the evidence, such
person shall be subject to pay a civil penalty in an amount not
to exceed $100,000 for each such violation.
``(2) Relation to other proceedings.--The imposition of a
civil penalty under this subsection does not preclude any other
criminal or civil statutory, common law, or administrative
remedy, which is available by law to the United States or any
other person.
[[Page 112 STAT. 2681-868]]
``(c) Reimbursement of Costs.--The court shall order any person
convicted of an offense under subsection (a) to reimburse the United
States for any expenses incurred by the United States incident to the
seizure, storage, handling, transportation, and destruction or other
disposition of any property that was seized in connection with an
investigation of the commission of the offense by that person. A person
ordered to reimburse the United States for expenses under this
subsection shall be jointly and severally liable for such expenses with
each other person, if any, who is ordered under this subsection to
reimburse the United States for the same expenses.
``Sec. 229B. Criminal forfeitures; destruction of weapons
``(a) Property Subject to Criminal Forfeiture.--Any person convicted
under section 229A(a) shall forfeit to the United States irrespective of
any provision of State law--
``(1) any property, real or personal, owned, possessed, or
used by a person involved in the offense;
``(2) any property constituting, or derived from, and
proceeds the person obtained, directly or indirectly, as the
result of such violation; and
``(3) any of the property used in any manner or part, to
commit, or to facilitate the commission of, such violation.
The court, in imposing sentence on such person, shall order, in addition
to any other sentence imposed pursuant to section 229A(a), that the
person forfeit to the United States all property described in this
subsection. In lieu of a fine otherwise authorized by section 229A(a), a
defendant who derived profits or other proceeds from an offense may be
fined not more than twice the gross profits or other proceeds.
``(b) Procedures.--
``(1) General.--Property subject to forfeiture under this
section, any seizure and disposition thereof, and any
administrative or judicial proceeding in relation thereto, shall
be governed by subsections (b) through (p) of section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853), except that any reference under those subsections
to--
``(A) `this subchapter or subchapter II' shall be
deemed to be a reference to section 229A(a); and
``(B) `subsection (a)' shall be deemed to be a
reference to subsection (a) of this section.
``(2) Temporary restraining orders.--
``(A) In general.--For the purposes of forfeiture
proceedings under this section, a temporary restraining
order may be entered upon application of the United
States without notice or opportunity for a hearing when
an information or indictment has not yet been filed with
respect to the property, if, in addition to the
circumstances described in section 413(e)(2) of the
Comprehensive Drug Abuse Prevention and Control Act of
1970 (21 U.S.C. 853(e)(2)), the United States
demonstrates that there is probable cause to believe
that the property with respect to which the order is
sought would, in the event of conviction, be subject to
forfeiture under this section and exigent circumstances
exist that place the life or health of any person in
danger.
[[Page 112 STAT. 2681-869]]
``(B) Warrant of seizure.--If the court enters a
temporary restraining order under this paragraph, it
shall also issue a warrant authorizing the seizure of
such property.
``(C) Applicable procedures.--The procedures and
time limits applicable to temporary restraining orders
under section 413(e) (2) and (3) of the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (21 U.S.C.
853(e) (2) and (3)) shall apply to temporary restraining
orders under this paragraph.
``(c) Affirmative Defense.--It is an affirmative defense against a
forfeiture under subsection (b) that the property--
``(1) is for a purpose not prohibited under the Chemical
Weapons Convention; and
``(2) is of a type and quantity that under the circumstances
is consistent with that purpose.
``(d) Destruction or Other Disposition.--The Attorney General shall
provide for the destruction or other appropriate disposition of any
chemical weapon seized and forfeited pursuant to this section.
``(e) Assistance.--The Attorney General may request the head of any
agency of the United States to assist in the handling, storage,
transportation, or destruction of property seized under this section.
``(f) Owner Liability.--The owner or possessor of any property
seized under this section shall be liable to the United States for any
expenses incurred incident to the seizure, including any expenses
relating to the handling, storage, transportation, and destruction or
other disposition of the seized property.
``Sec. 229C. Individual self-defense devices
``Nothing in this chapter shall be construed to prohibit any
individual self-defense device, including those using a pepper spray or
chemical mace.
``Sec. 229D. Injunctions
``The United States may obtain in a civil action an injunction
against--
``(1) the conduct prohibited under section 229 or 229C of
this title; or
``(2) the preparation or solicitation to engage in conduct
prohibited under section 229 or 229D of this title.
``Sec. 229E. Requests for military assistance to enforce prohibition in
certain emergencies
``The Attorney General may request the Secretary of Defense to
provide assistance under section 382 of title 10 in support of
Department of Justice activities relating to the enforcement of section
229 of this title in an emergency situation involving a chemical weapon.
The authority to make such a request may be exercised by another
official of the Department of Justice in accordance with section
382(f)(2) of title 10.
``Sec. 229F. Definitions
``In this chapter:
``(1) Chemical weapon.--The term `chemical weapon' means the
following, together or separately:
[[Page 112 STAT. 2681-870]]
``(A) A toxic chemical and its precursors, except
where intended for a purpose not prohibited under this
chapter as long as the type and quantity is consistent
with such a purpose.
``(B) A munition or device, specifically designed to
cause death or other harm through toxic properties of
those toxic chemicals specified in subparagraph (A),
which would be released as a result of the employment of
such munition or device.
``(C) Any equipment specifically designed for use
directly in connection with the employment of munitions
or devices specified in subparagraph (B).
``(2) Chemical weapons convention; convention.--The terms
`Chemical Weapons Convention' and `Convention' mean the
Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their
Destruction, opened for signature on January 13, 1993.
``(3) Key component of a binary or multicomponent chemical
system.--The term `key component of a binary or multicomponent
chemical system' means the precursor which plays the most
important role in determining the toxic properties of the final
product and reacts rapidly with other chemicals in the binary or
multicomponent system.
``(4) National of the united states.--The term `national of
the United States' has the same meaning given such term in
section 101(a)(22) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(22)).
``(5) Person.--The term `person', except as otherwise
provided, means any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, any
State or any political subdivision thereof, or any political
entity within a State, any foreign government or nation or any
agency, instrumentality or political subdivision of any such
government or nation, or other entity located in the United
States.
``(6) Precursor.--
``(A) In general.--The term `precursor' means any
chemical reactant which takes part at any stage in the
production by whatever method of a toxic chemical. The
term includes any key component of a binary or
multicomponent chemical system.
``(B) List of precursors.--Precursors which have
been identified for the application of verification
measures under Article VI of the Convention are listed
in schedules contained in the Annex on Chemicals of the
Chemical Weapons Convention.
``(7) Purposes not prohibited by this chapter.--The term
`purposes not prohibited by this chapter' means the following:
``(A) Peaceful purposes.--Any peaceful purpose
related to an industrial, agricultural, research,
medical, or pharmaceutical activity or other activity.
``(B) Protective purposes.--Any purpose directly
related to protection against toxic chemicals and to
protection against chemical weapons.
``(C) Unrelated military purposes.--Any military
purpose of the United States that is not connected with
the use of a chemical weapon or that is not dependent
[[Page 112 STAT. 2681-871]]
on the use of the toxic or poisonous properties of the
chemical weapon to cause death or other harm.
``(D) Law enforcement purposes.--Any law enforcement
purpose, including any domestic riot control purpose and
including imposition of capital punishment.
``(8) Toxic chemical.--
``(A) In general.--The term `toxic chemical' means
any chemical which through its chemical action on life
processes can cause death, temporary incapacitation or
permanent harm to humans or animals. The term includes
all such chemicals, regardless of their origin or of
their method of production, and regardless of whether
they are produced in facilities, in munitions or
elsewhere.
``(B) List of toxic chemicals.--Toxic chemicals
which have been identified for the application of
verification measures under Article VI of the Convention
are listed in schedules contained in the Annex on
Chemicals of the Chemical Weapons Convention.
``(9) United states.--The term `United States' means the
several States of the United States, the District of Columbia,
and the commonwealths, territories, and possessions of the
United States and includes all places under the jurisdiction or
control of the United States, including--
``(A) any of the places within the provisions of
paragraph (41) of section 40102 of title 49, United
States Code;
``(B) any civil aircraft of the United States or
public aircraft, as such terms are defined in paragraphs
(17) and (37), respectively, of section 40102 of title
49, United States Code; and
``(C) any vessel of the United States, as such term
is defined in section 3(b) of the Maritime Drug
Enforcement Act, as amended (46 U.S.C., App. sec.
1903(b)).''.
(b) Conforming Amendments.--
(1) Weapons of mass destruction.--Section 2332a of title 18,
United States Code, is amended--
(A) by striking ``Sec. 2332a. Use of weapons of mass
destruction'' and inserting ``Sec. 2332a. Use of certain
weapons of mass destruction'';
(B) in subsection (a), by inserting ``(other than a
chemical weapon as that term is defined in section
229F)'' after ``weapon of mass destruction''; and
(C) in subsection (b), by inserting ``(other than a
chemical weapon (as that term is defined in section
229F))'' after ``weapon of mass destruction''.
(2) Table of chapters.--The table of chapters for part I of
title 18, United States Code, is amended by inserting after the
item for chapter 11A the following new item:
``11B. Chemical Weapons...........................................229''.
(c) Repeals.--The following provisions of law are repealed:
(1) Section 2332c of title 18, United States Code, relating
to chemical weapons.
(2) In the table of sections for chapter 113B of title 18,
United States Code, the item relating to section 2332c.
[[Page 112 STAT. 2681-872]]
Subtitle B--Revocations of Export Privileges
SEC. 211. <<NOTE: 18 USC 229 note.>> REVOCATIONS OF EXPORT PRIVILEGES.
If the President determines, after notice and an opportunity for a
hearing in accordance with section 554 of title 5, United States Code,
that any person within the United States, or any national of the United
States located outside the United States, has committed any violation of
section 229 of title 18, United States Code, the President may issue an
order for the suspension or revocation of the authority of the person to
export from the United States any goods or technology (as such terms are
defined in section 16 of the Export Administration Act of 1979 (50
U.S.C. App. 2415)).
TITLE III--INSPECTIONS
SEC. 301. <<NOTE: 22 USC 6721.>> DEFINITIONS IN THE TITLE.
(a) In General.--In this title, the terms ``challenge
inspection'', ``plant site'', ``plant'', ``facility agreement'',
``inspection team'', and ``requesting state party'' have the meanings
given those terms in Part I of the Annex on Implementation and
Verification of the Chemical Weapons Convention. The term ``routine
inspection'' means an inspection, other than an ``initial inspection'',
undertaken pursuant to Article VI of the Convention.
(b) Definition of Judge of the United States.--In this title, the
term ``judge of the United States'' means a judge or magistrate judge of
a district court of the United States.
SEC. 302. <<NOTE: 22 USC 6722.>> FACILITY AGREEMENTS.
(a) Authorization of Inspections.--Inspections by the Technical
Secretariat of plants, plant sites, or other facilities or locations for
which the United States has a facility agreement with the Organization
shall be conducted in accordance with the facility agreement. Any such
facility agreement may not in any way limit the right of the owner or
operator of the facility to withhold consent to an inspection request.
(b) Types of Facility Agreements.--
(1) Schedule two facilities.--The United States National
Authority shall ensure that facility agreements for plants,
plant sites, or other facilities or locations that are subject
to inspection pursuant to paragraph 4 of Article VI of the
Convention are concluded unless the owner, operator, occupant,
or agent in charge of the facility and the Technical Secretariat
agree that such an agreement is not necessary.
(2) Schedule three facilities.--The United States National
Authority shall ensure that facility agreements are concluded
for plants, plant sites, or other facilities or locations that
are subject to inspection pursuant to paragraph 5 or 6 of
Article VI of the Convention if so requested by the owner,
operator, occupant, or agent in charge of the facility.
(c) Notification Requirements.--The United States National
Authority shall ensure that the owner, operator, occupant, or agent in
charge of a facility prior to the development of the agreement relating
to that facility is notified and, if the person notified so requests,
the person may participate in the preparations for the negotiation of
such an agreement. To the maximum extent practicable consistent with the
Convention, the owner and the operator,
[[Page 112 STAT. 2681-873]]
occupant or agent in charge of a facility may observe negotiations of
the agreement between the United States and the Organization concerning
that facility.
(d) Content of Facility Agreements.--Facility agreements shall--
(1) identify the areas, equipment, computers, records, data,
and samples subject to inspection;
(2) describe the procedures for providing notice of an
inspection to the owner, occupant, operator, or agent in charge
of a facility;
(3) describe the timeframes for inspections; and
(4) detail the areas, equipment, computers, records, data,
and samples that are not subject to inspection.
SEC. 303. <<NOTE: 22 USC 6723.>> AUTHORITY TO CONDUCT INSPECTIONS.
(a) Prohibition.--No inspection of a plant, plant site, or other
facility or location in the United States shall take place under the
Convention without the authorization of the United States National
Authority in accordance with the requirements of this title.
(b) Authority.--
(1) Technical secretariat inspection teams.--Any duly
designated member of an inspection team of the Technical
Secretariat may inspect any plant, plant site, or other facility
or location in the United States subject to inspection pursuant
to the Convention.
(2) United states government representatives.--The United
States National Authority shall coordinate the designation of
employees of the Federal Government to accompany members of an
inspection team of the Technical Secretariat and, in doing so,
shall ensure that--
(A) a special agent of the Federal Bureau of
Investigation, as designated by the Federal Bureau of
Investigation, accompanies each inspection team visit
pursuant to paragraph (1);
(B) no employee of the Environmental Protection
Agency or the Occupational Safety and Health
Administration accompanies any inspection team visit
conducted pursuant to paragraph (1); and
(C) the number of duly designated representatives
shall be kept to the minimum necessary.
(3) Objections to individuals serving as inspectors.--
(A) In general.--In deciding whether to exercise the
right of the United States under the Convention to
object to an individual serving as an inspector, the
President shall give great weight to his reasonable
belief that--
(i) such individual is or has been a member
of, or a participant in, any group or organization
that has engaged in, or attempted or conspired to
engage in, or aided or abetted in the commission
of, any terrorist act or activity;
(ii) such individual has committed any act or
activity which would be a felony under the laws of
the United States; or
(iii) the participation of such individual as
a member of an inspection team would pose a risk
to the
[[Page 112 STAT. 2681-874]]
national security or economic well-being of the
United States.
(B) Not subject to judicial review.--Any objection
by the President to an individual serving as an
inspector, whether made pursuant to this section or
otherwise, shall not be reviewable in any court.
SEC. 304. <<NOTE: 22 USC 6724.>> PROCEDURES FOR INSPECTIONS.
(a) Types of Inspections.--Each inspection of a plant, plant site,
or other facility or location in the United States under the Convention
shall be conducted in accordance with this section and section 305,
except where other procedures are provided in a facility agreement
entered into under section 302.
(b) Notice.--
(1) In general.--An inspection referred to in subsection (a)
may be made only upon issuance of an actual written notice by
the United States National Authority to the owner and to the
operator, occupant, or agent in charge of the premises to be
inspected.
(2) Time of Notification.--The notice for a routine
inspection shall be submitted to the owner and to the operator,
occupant, or agent in charge within six hours of receiving the
notification of the inspection from the Technical Secretariat or
as soon as possible thereafter. Notice for a challenge
inspection shall be provided at any appropriate time determined
by the United States National Authority. Notices may be posted
prominently at the plant, plant site, or other facility or
location if the United States is unable to provide actual
written notice to the owner, operator, or agent in charge of the
premises.
(3) Content of notice.--
(A) In general.--The notice under paragraph (1)
shall include all appropriate information supplied by
the Technical Secretariat to the United States National
Authority concerning--
(i) the type of inspection;
(ii) the basis for the selection of the plant,
plant site, or other facility or location for the
type of inspection sought;
(iii) the time and date that the inspection
will begin and the period covered by the
inspection; and
(iv) the names and titles of the inspectors.
(B) Special rule for challenge inspections.--In the
case of a challenge inspection pursuant to Article IX of
the Convention, the notice shall also include all
appropriate evidence or reasons provided by the
requesting state party to the Convention for seeking the
inspection.
(4) Separate notices required.--A separate notice shall be
provided for each inspection, except that a notice shall not be
required for each entry made during the period covered by the
inspection.
(c) Credentials.--The head of the inspection team of the Technical
Secretariat and the accompanying employees of the Federal government
shall display appropriate identifying credentials to the owner,
operator, occupant, or agent in charge of the premises before the
inspection is commenced.
(d) Timeframe for Inspections.--Consistent with the provisions of
the Convention, each inspection shall be commenced and
[[Page 112 STAT. 2681-875]]
completed with reasonable promptness and shall be conducted at
reasonable times, within reasonable limits, and in a reasonable manner.
(e) Scope.--
(1) In general.--Except as provided in a warrant issued
under section 305 or a facility agreement entered into under
section 302, an inspection conducted under this title may extend
to all things within the premises inspected (including records,
files, papers, processes, controls, structures and vehicles)
related to whether the requirements of the Convention applicable
to such premises have been complied with.
(2) Exception.--Unless required by the Convention, no
inspection under this title shall extend to--
(A) financial data;
(B) sales and marketing data (other than shipment
data);
(C) pricing data;
(D) personnel data;
(E) research data;
(F) patent data;
(G) data maintained for compliance with
environmental or occupational health and safety
regulations; or
(H) personnel and vehicles entering and personnel
and personal passenger vehicles exiting the facility.
(f) Sampling and Safety.--
(1) In general.--The Director of the United States National
Authority is authorized to require the provision of samples to a
member of the inspection team of the Technical Secretariat in
accordance with the provisions of the Convention. The owner or
the operator, occupant or agent in charge of the premises to be
inspected shall determine whether the sample shall be taken by
representatives of the premises or the inspection team or other
individuals present. No sample collected in the United States
pursuant to an inspection permitted by this Act may be
transferred for analysis to any laboratory outside the territory
of the United States.
(2) Compliance with regulations.--In carrying out their
activities, members of the inspection team of the Technical
Secretariat and representatives of agencies or departments
accompanying the inspection team shall observe safety
regulations established at the premises to be inspected,
including those for protection of controlled environments within
a facility and for personal safety.
(g) Coordination.--The appropriate representatives of the United
States, as designated, if present, shall assist the owner and the
operator, occupant or agent in charge of the premises to be inspected in
interacting with the members of the inspection team of the Technical
Secretariat.
SEC. 305. <<NOTE: 22 USC 6725.>> WARRANTS.
(a) In General.--The United States Government shall seek the
consent of the owner or the operator, occupant, or agent in charge of
the premises to be inspected prior to any inspection referred to in
section 304(a). If consent is obtained, a warrant is not required for
the inspection. The owner or the operator, occupant, or agent in charge
of the premises to be inspected may withhold consent for any reason or
no reason. After providing
[[Page 112 STAT. 2681-876]]
notification pursuant to subsection (b), the United States Government
may seek a search warrant from a United States magistrate judge.
Proceedings regarding the issuance of a search warrant shall be
conducted ex parte, unless otherwise requested by the United States
Government.
(b) Routine Inspections.--
(1) Obtaining administrative search warrants.--For any
routine inspection conducted on the territory of the United
States pursuant to Article VI of the Convention, where consent
has been withheld, the United States Government shall first
obtain an administrative search warrant from a judge of the
United States. The United States Government shall provide to the
judge of the United States all appropriate information supplied
by the Technical Secretariat to the United States National
Authority regarding the basis for the selection of the plant
site, plant, or other facility or location for the type of
inspection sought. The United States Government shall also
provide any other appropriate information available to it
relating to the reasonableness of the selection of the plant,
plant site, or other facility or location for the inspection.
(2) Content of affidavits for administrative search
warrants.--The judge of the United States shall promptly issue a
warrant authorizing the requested inspection upon an affidavit
submitted by the United States Government showing that--
(A) the Chemical Weapons Convention is in force for
the United States;
(B) the plant site, plant, or other facility or
location sought to be inspected is required to report
data under title IV of this Act and is subject to
routine inspection under the Convention;
(C) the purpose of the inspection is--
(i) in the case of any facility owned or
operated by a non-Government entity related to
Schedule 1 chemical agents, to verify that the
facility is not used to produce any Schedule 1
chemical agent except for declared chemicals;
quantities of Schedule 1 chemicals produced,
processed, or consumed are correctly declared and
consistent with needs for the declared purpose;
and Schedule 1 chemicals are not diverted or used
for other purposes;
(ii) in the case of any facility related to
Schedule 2 chemical agents, to verify that
activities are in accordance with obligations
under the Convention and consistent with the
information provided in data declarations; and
(iii) in the case of any facility related to
Schedule 3 chemical agents and any other chemical
production facility, to verify that the activities
of the facility are consistent with the
information provided in data declarations;
(D) the items, documents, and areas to be searched
and seized;
(E) in the case of a facility related to Schedule 2
or Schedule 3 chemical agents or unscheduled discrete
organic chemicals, the plant site has not been subject
to more than 1 routine inspection in the current
calendar
[[Page 112 STAT. 2681-877]]
year, and, in the case of facilities related to Schedule
3 chemical agents or unscheduled discrete organic
chemicals, the inspection will not cause the number of
routine inspections in the United States to exceed 20 in
a calendar year;
(F) the selection of the site was made in accordance
with procedures established under the Convention and, in
particular--
(i) in the case of any facility owned or
operated by a non-Government entity related to
Schedule 1 chemical agents, the intensity,
duration, timing, and mode of the requested
inspection is based on the risk to the object and
purpose of the Convention
by the quantities of chemical produced, the characteristics of the
facility and the nature of activities carried out at the facility, and
the requested inspection, when considered with previous such inspections
of the facility undertaken in the current calendar year, shall not
exceed the number reasonably required based on the risk to the object
and purpose of the Convention as described above;
(ii) in the case of any facility related to
Schedule 2 chemical agents, the Technical
Secretariat gave due consideration to the risk to
the object and purpose of the Convention posed by
the relevant chemical, the characteristics of the
plant site and the nature of activities carried
out there, taking into account the respective
facility agreement as well as the results of the
initial inspections and subsequent inspections;
and
(iii) in the case of any facility related to
Schedule 3 chemical agents or unscheduled discrete
organic chemicals, the facility was selected
randomly by the Technical Secretariat using
appropriate mechanisms, such as specifically
designed computer software, on the basis of two
weighting factors: (I) equitable geographical
distribution of inspections; and (II) the
information on the declared sites available to the
Technical Secretariat, related to the relevant
chemical, the characteristics of the plant site,
and the nature of activities carried out there;
(G) the earliest commencement and latest closing
dates and times of the inspection; and
(H) the duration of inspection will not exceed time
limits specified in the Convention unless agreed by the
owner, operator, or agent in charge of the plant.
(3) Content of warrants.--A warrant issued under paragraph
(2) shall specify the same matters required of an affidavit
under that paragraph. In addition to the requirements for a
warrant issued under this paragraph, each warrant shall contain,
if known, the identities of the representatives of the Technical
Secretariat conducting the inspection and the observers of the
inspection and, if applicable, the identities of the
representatives of agencies or departments of the United States
accompanying those representatives.
(4) Challenge inspections.--
(A) Criminal search warrant.--For any challenge
inspection conducted on the territory of the United
States
[[Page 112 STAT. 2681-878]]
pursuant to Article IX of the Chemical Weapons
Convention, where consent has been withheld, the United
States Government shall first obtain from a judge of the
United States a criminal search warrant based upon
probable cause, supported by oath or affirmation, and
describing with particularity the place to be searched
and the person or things to be seized.
(B) Information provided.--The United States
Government shall provide to the judge of the United
States--
(i) all appropriate information supplied by
the Technical Secretariat to the United States
National Authority regarding the basis for the
selection of the plant site, plant, or other
facility or location for the type of inspection
sought;
(ii) any other appropriate information
relating to the reasonableness of the selection of
the plant, plant site, or other facility or
location for the inspection;
(iii) information concerning--
(I) the duration and scope of the
inspection;
(II) areas to be inspected;
(III) records and data to be
reviewed; and
(IV) samples to be taken;
(iv) appropriate evidence or reasons provided
by the requesting state party for the inspection;
(v) any other evidence showing probable cause
to believe that a violation of this Act has
occurred or is occurring; and
(vi) the identities of the representatives of
the Technical Secretariat on the inspection team
and the Federal Government employees accompanying
the inspection team.
(C) Content of warrant.--The warrant shall
specify--
(i) the type of inspection authorized;
(ii) the purpose of the inspection;
(iii) the type of plant site, plant, or other
facility or location to be inspected;
(iv) the areas of the plant site, plant, or
other facility or location to be inspected;
(v) the items, documents, data, equipment, and
computers that may be inspected or seized;
(vi) samples that may be taken;
(vii) the earliest commencement and latest
concluding dates and times of the inspection; and
(viii) the identities of the representatives
of the Technical Secretariat on the inspection
teams and the Federal Government employees
accompanying the inspection team.
SEC. 306. <<NOTE: 22 USC 6726.>> PROHIBITED ACTS RELATING TO
INSPECTIONS.
It shall be unlawful for any person willfully to fail or refuse to
permit entry or inspection, or to disrupt, delay, or otherwise impede an
inspection, authorized by this Act.
SEC. 307. <<NOTE: 22 USC 6727.>> NATIONAL SECURITY EXCEPTION.
Consistent with the objective of eliminating chemical weapons, the
President may deny a request to inspect any facility in the
[[Page 112 STAT. 2681-879]]
United States in cases where the President determines that the
inspection may pose a threat to the national security interests of the
United States.
SEC. 308. PROTECTION OF CONSTITUTIONAL RIGHTS OF CONTRACTORS.
(a) The Office of Federal Procurement Policy Act (41 U.S.C. 403 et
seq.) is amended by adding at the end the following:
``SEC. 39. <<NOTE: 41 USC 436.>> PROTECTION OF CONSTITUTIONAL RIGHTS OF
CONTRACTORS.
``(a) Prohibition.--A contractor may not be required, as a
condition for entering into a contract with the Federal Government, to
waive any right under the Constitution for any purpose related to
Chemical Weapons Convention Implementation Act of 1997 or the Chemical
Weapons Convention (as defined in section 3 of such Act).
``(b) Construction.--Nothing in subsection (a) shall be construed
to prohibit an executive agency from including in a contract a clause
that requires the contractor to permit inspections for the purpose of
ensuring that the contractor is performing the contract in accordance
with the provisions of the contract.''.
(b) The table of contents in section 1(b) of such Act is amended
by adding at the end the following:
``Sec. 39. Protection of constitutional rights of contractors.''.
SEC. 309. <<NOTE: 22 USC 6728.>> ANNUAL REPORT ON INSPECTIONS.
(a) In General.--Not later than one year after the date of
enactment of this Act, and annually thereafter, the President shall
submit a report in classified and unclassified form to the appropriate
congressional committees on inspections made under the Convention during
the preceding year.
(b) Content of Reports.--Each report shall contain the following
information for the reporting period:
(1) The name of each company or entity subject to the
jurisdiction of the United States reporting data pursuant to
title IV of this Act.
(2) The number of inspections under the Convention conducted
on the territory of the United States.
(3) The number and identity of inspectors conducting any
inspection described in paragraph (2) and the number of
inspectors barred from inspection by the United States.
(4) The cost to the United States for each inspection
described in paragraph (2).
(5) The total costs borne by United States business firms in
the course of inspections described in paragraph (2).
(6) A description of the circumstances surrounding
inspections described in paragraph (2), including instances of
possible industrial espionage and misconduct of inspectors.
(7) The identity of parties claiming loss of trade secrets,
the circumstances surrounding those losses, and the efforts
taken by the United States Government to redress those losses.
(8) A description of instances where inspections under the
Convention outside the United States have been disrupted or
delayed.
(c) Definition.--The term ``appropriate congressional committees''
means the Committee on the Judiciary, the Committee on Foreign
Relations, and the Select Committee on Intelligence of
[[Page 112 STAT. 2681-880]]
the Senate and the Committee on the Judiciary, the Committee on
International Relations, and the Permanent Select Committee on
Intelligence of the House of Representatives.
SEC. 310. <<NOTE: 22 USC 6729.>> UNITED STATES ASSISTANCE IN
INSPECTIONS AT PRIVATE FACILITIES.
(a) Assistance in Preparation for Inspections.--At the request of
an owner of a facility not owned or operated by the United States
Government, or contracted for use by or for the United States
Government, the Secretary of Defense may assist the facility to prepare
the facility for possible inspections pursuant to the Convention.
(b) Reimbursement Requirement.--
(1) In general.--Except as provided in paragraph (2), the
owner of a facility provided assistance under subsection (a)
shall reimburse the Secretary for the costs incurred by the
Secretary in providing the assistance.
(2) Exception.--In the case of assistance provided under
subsection (a) to a facility owned by a person described in
subsection (c), the United States National Authority shall
reimburse the Secretary for the costs incurred by the Secretary
in providing the assistance.
(c) Owners Covered by United States National Authority
Reimbursements.--Subsection (b)(2) applies in the case of assistance
provided to the following:
(1) Small business concerns.--A small business concern as
defined in section 3 of the Small Business Act.
(2) Domestic producers of schedule 3 or unscheduled discrete
organic chemicals.--Any person located in the United States
that--
(A) does not possess, produce, process, consume,
import, or export any Schedule 1 or Schedule 2 chemical;
and
(B) in the calendar year preceding the year in which
the assistance is to be provided, produced--
(i) more than 30 metric tons of Schedule 3 or
unscheduled discrete organic chemicals that
contain phosphorous, sulfur, or fluorine; or
(ii) more than 200 metric tons of unscheduled
discrete organic chemicals.
TITLE IV--REPORTS
SEC. 401. <<NOTE: 22 USC 6741.>> REPORTS REQUIRED BY THE UNITED STATES
NATIONAL AUTHORITY.
(a) Regulations on Recordkeeping.--
(1) Requirements.--The United States National Authority
shall ensure that regulations are prescribed that require each
person located in the United States who produces, processes,
consumes, exports, or imports, or proposes to produce, process,
consume, export, or import, a chemical substance that is subject
to the Convention to--
(A) maintain and permit access to records related to
that production, processing, consumption, export, or
import of such substance; and
[[Page 112 STAT. 2681-881]]
(B) submit to the Director of the United States
National Authority such reports as the United States
National Authority may reasonably require to provide to
the Organization, pursuant to subparagraph 1(a) of the
Annex on Confidentiality of the Convention, the minimum
amount of information and data necessary for the timely
and efficient conduct by the Organization of its
responsibilities under the Convention.
(2) Rulemaking.--The Director of the United States National
Authority shall ensure that regulations pursuant to this section
are prescribed expeditiously.
(b) Coordination.--
(1) Avoidance of duplication.--To the extent feasible, the
United States Government shall not require the submission of any
report that is unnecessary or duplicative of any report required
by or under any other law. The head of each Federal agency shall
coordinate the actions of that agency with the heads of the
other Federal agencies in order to avoid the imposition of
duplicative reporting requirements under this Act or any other
law.
(2) Definition.--As used in paragraph (1), the term
``Federal agency'' has the meaning given the term ``agency'' in
section 551(1) of title 5, United States Code.
SEC. 402. <<NOTE: 22 USC 6742.>> PROHIBITION RELATING TO LOW
CONCENTRATIONS OF SCHEDULE 2 AND 3 CHEMICALS.
(a) Prohibition.--Notwithstanding any other provision of this Act,
no person located in the United States shall be required to report on,
or to submit to, any routine inspection conducted for the purpose of
verifying the production, possession, consumption, exportation,
importation, or proposed production, possession, consumption,
exportation, or importation of any substance that contains less than--
(1) 10 percent concentration of a Schedule 2 chemical; or
(2) 80 percent concentration of a Schedule 3 chemical.
(b) Standard for Measurement of Concentration.--The percent
concentration of a chemical in a substance shall be measured on the
basis of volume or total weight, which measurement yields the lesser
percent.
SEC. 403. <<NOTE: 22 USC 6743.>> PROHIBITION RELATING TO UNSCHEDULED
DISCRETE ORGANIC CHEMICALS AND COINCIDENTAL BYPRODUCTS IN
WASTE STREAMS.
(a) Prohibition.--Notwithstanding any other provision of this Act,
no person located in the United States shall be required to report on,
or to submit to, any routine inspection conducted for the purpose of
verifying the production, possession, consumption, exportation,
importation, or proposed production, possession, consumption,
exportation, or importation of any substance that is--
(1) an unscheduled discrete organic chemical; and
(2) a coincidental byproduct of a manufacturing or
production process that is not isolated or captured for use or
sale during the process and is routed to, or escapes, from the
waste stream of a stack, incinerator, or wastewater treatment
system or any other waste stream.
[[Page 112 STAT. 2681-882]]
SEC. 404. <<NOTE: 22 USC 6744.>> CONFIDENTIALITY OF INFORMATION.
(a) Freedom of Information Act Exemption for Certain Convention
Information.--Except as provided in subsection (b) or (c), any
confidential business information, as defined in section 103(g),
reported to, or otherwise acquired by, the United States Government
under this Act or under the Convention shall not be disclosed under
section 552(a) of title 5, United States Code.
(b) Exceptions.--
(1) Information for the technical secretariat.--Information
shall be disclosed or otherwise provided to the Technical
Secretariat or other states parties to the Chemical Weapons
Convention in accordance with the Convention, in particular, the
provisions of the Annex on the Protection of Confidential
Information.
(2) Information for congress.--Information shall be made
available to any committee or subcommittee of Congress with
appropriate jurisdiction upon the written request of the
chairman or ranking minority member of such committee or
subcommittee, except that no such committee or subcommittee, and
no member and no staff member of such committee or subcommittee,
shall disclose such information or material except as otherwise
required or authorized by law.
(3) Information for enforcement actions.--Information shall
be disclosed to other Federal agencies for enforcement of this
Act or any other law, and shall be disclosed or otherwise
provided when relevant in any proceeding under this Act or any
other law, except that disclosure or provision in such a
proceeding shall be made in such manner as to preserve
confidentiality to the extent practicable without impairing the
proceeding.
(c) Information Disclosed in the National Interest.--
(1) Authority.--The United States Government shall disclose
any information reported to, or otherwise required by the United
States Government under this Act or the Convention, including
categories of such information, that it determines is in the
national interest to disclose and may specify the form in which
such information is to be disclosed.
(2) Notice of disclosure.--
(A) Requirement.--If any Department or agency of the
United States Government proposes pursuant to paragraph
(1) to publish or disclose or otherwise provide
information exempt from disclosure under subsection (a),
the United States National Authority shall, unless
contrary to national security or law enforcement needs,
provide notice of intent to disclose the information--
(i) to the person that submitted such
information; and
(ii) in the case of information about a person
received from another source, to the person to
whom that information pertains.
The information may not be disclosed until the
expiration of 30 days after notice under this paragraph
has been provided.
(B) Proceedings on objections.--In the event that
the person to which the information pertains objects to
the disclosure, the agency shall promptly review the
grounds for each objection of the person and shall
afford
[[Page 112 STAT. 2681-883]]
the objecting person a hearing for the purpose of
presenting the objections to the disclosure. Not later
than 10 days before the scheduled or rescheduled date
for the disclosure, the United States National Authority
shall notify such person regarding whether such
disclosure will occur notwithstanding the objections.
(d) Criminal Penalty for Wrongful Disclosure.--Any officer or
employee of the United States, and any former officer or employee of the
United States, who by reason of such employment or official position has
obtained possession of, or has access to, information the disclosure or
other provision of which is prohibited by subsection (a), and who,
knowing that disclosure or provision of such information is prohibited
by such subsection, willfully discloses or otherwise provides the
information in any manner to any person (including any person located
outside the territory of the United States) not authorized to receive
it, shall be fined under title 18, United States Code, or imprisoned for
not more than five years, or both.
(e) Criminal Forfeiture.--The property of any person who violates
subsection (d) shall be subject to forfeiture to the United States in
the same manner and to the same extent as is provided in section 229C of
title 18, United States Code, as added by this Act.
(f) International Inspectors.--The provisions of this section shall
also apply to employees of the Technical Secretariat.
SEC. 405. <<NOTE: 22 USC 6745.>> RECORDKEEPING VIOLATIONS.
It shall be unlawful for any person willfully to fail or refuse--
(1) to establish or maintain any record required by this Act
or any regulation prescribed under this Act;
(2) to submit any report, notice, or other information to
the United States Government in accordance with this Act or any
regulation prescribed under this Act; or
(3) to permit access to or copying of any record that is
exempt from disclosure under this Act or any regulation
prescribed under this Act.
TITLE V--ENFORCEMENT
SEC. 501. <<NOTE: 22 USC 6761.>> PENALTIES.
(a) Civil.--
(1) Penalty amounts.--
(A) Prohibited acts relating to inspections.--Any
person that is determined, in accordance with paragraph
(2), to have violated section 306 of this Act shall be
required by order to pay a civil penalty in an amount
not to exceed $25,000 for each such violation. For
purposes of this paragraph, each day such a violation of
section 306 continues shall constitute a separate
violation of that section.
(B) Recordkeeping violations.--Any person that is
determined, in accordance with paragraph (2), to have
violated section 405 of this Act shall be required by
order to pay a civil penalty in an amount not to exceed
$5,000 for each such violation.
(2) Hearing.--
[[Page 112 STAT. 2681-884]]
(A) In general.--Before imposing an order described
in paragraph (1) against a person under this subsection
for a violation of section 306 or 405, the Secretary of
State shall provide the person or entity with notice
and, upon request made within 15 days of the date of the
notice, a hearing respecting the violation.
(B) Conduct of hearing.--Any hearing so requested
shall be conducted before an administrative law judge.
The hearing shall be conducted in accordance with the
requirements of section 554 of title 5, United States
Code. If no hearing is so requested, the Secretary of
State's imposition of the order shall constitute a final
and unappealable order.
(C) Issuance of orders.--If the administrative law
judge determines, upon the preponderance of the evidence
received, that a person or entity named in the complaint
has violated section 306 or 405, the administrative law
judge shall state his findings of fact and issue and
cause to be served on such person or entity an order
described in paragraph (1).
(D) Factors for determination of penalty amounts.--
In determining the amount of any civil penalty, the
administrative law judge shall take into account the
nature, circumstances, extent, and gravity of the
violation or violations and, with respect to the
violator, the ability to pay, effect on ability to
continue to do business, any history of prior such
violations, the degree of culpability, the existence of
an internal compliance program, and such other matters
as justice may require.
(3) Administrative appellate review.--The decision and order
of an administrative law judge shall become the final agency
decision and order of the head of the United States National
Authority unless, within 30 days, the head of the United States
National Authority modifies or vacates the decision and order,
with or without conditions, in which case the decision and order
of the head of the United States National Authority shall become
a final order under this subsection.
(4) Offsets.--The amount of the civil penalty under a final
order of the United States National Authority may be deducted
from any sums owed by the United States to the person.
(5) Judicial review.--A person adversely affected by a final
order respecting an assessment may, within 30 days after the
date the final order is issued, file a petition in the Court of
Appeals for
the District of Columbia Circuit or for any other circuit in which the
person resides or transacts business.
(6) Enforcement of orders.--If a person fails to comply with
a final order issued under this subsection against the person or
entity--
(A) after the order making the assessment has become
a final order and if such person does not file a
petition for judicial review of the order in accordance
with paragraph (5), or
(B) after a court in an action brought under
paragraph (5) has entered a final judgment in favor of
the United States National Authority,
[[Page 112 STAT. 2681-885]]
the Secretary of State shall file a suit to seek compliance with
the order in any appropriate district court of the United
States, plus interest at currently prevailing rates calculated
from the date of expiration of the 30-day period referred to in
paragraph (5) or the date of such final judgment, as the case
may be. In any such suit, the validity and appropriateness of
the final order shall not be subject to review.
(b) Criminal.--Any person who knowingly violates any
provision of section 306 or 405 of this Act, shall, in addition
to or in lieu of any civil penalty which may be imposed under
subsection (a) for such violation, be fined under title 18,
United States Code, imprisoned for not more than one year, or
both.
SEC. 502. <<NOTE: 22 USC 6762.>> SPECIFIC ENFORCEMENT.
(a) Jurisdiction.--The district courts of the United States shall
have jurisdiction over civil actions to--
(1) restrain any violation of section 306 or 405 of this
Act; and
(2) compel the taking of any action required by or under
this Act or the Convention.
(b) Civil Actions.--
(1) In general.--A civil action described in subsection (a)
may be brought--
(A) in the case of a civil action described in
subsection (a)(1), in the United States district court
for the judicial district in which any act, omission, or
transaction constituting a violation of section 306 or
405 occurred or in which the defendant is found or
transacts business; or
(B) in the case of a civil action described in
subsection (a)(2), in the United States district court
for the judicial district in which the defendant is
found or transacts business.
(2) Service of process.--In any such civil action process
may be served on a defendant wherever the defendant may reside
or may be found, whether the defendant resides or may be found
within the United States or elsewhere.
SEC. 503. <<NOTE: 22 USC 6763.>> EXPEDITED JUDICIAL REVIEW.
(a) Civil Action.--Any person or entity subject to a search under
this Act may file a civil action challenging the constitutionality of
any provision of this Act. Notwithstanding any other provision of law,
during the full calendar year of, and the two full calendar years
following, the enactment of this Act, the district court shall accord
such a case a priority in its disposition ahead of all other civil
actions except for actions challenging the legality and conditions of
confinement.
(b) En Banc Review.--Notwithstanding any other provision of law,
during the full calendar year of, and the two full calendar years
following, the enactment of this Act, any appeal from a final order
entered by a district court in an action brought under subsection (a)
shall be heard promptly by the full Court of Appeals sitting en banc.
[[Page 112 STAT. 2681-886]]
TITLE VI--MISCELLANEOUS PROVISIONS
SEC. 601. REPEAL.
Section 808 of the Department of Defense Appropriation Authorization
Act, 1978 (50 U.S.C. 1520; relating to the use of human subjects for the
testing of chemical or biological agents) is repealed.
SEC. 602. <<NOTE: 22 USC 6771.>> PROHIBITION.
(a) In General.--Neither the Secretary of Defense nor any other
officer or employee of the United States may, directly or by contract--
(1) conduct any test or experiment involving the use of any
chemical or biological agent on a civilian population; or
(2) use human subjects for the testing of chemical or
biological agents.
(b) Construction.--Nothing in subsection (a) may be construed to
prohibit actions carried out for purposes not prohibited by this Act (as
defined in section 3(8)).
(c) Biological Agent Defined.--In this section, the term
``biological agent'' means any micro-organism (including bacteria,
viruses, fungi, rickettsiae or protozoa), pathogen, or infectious
substance, or any naturally occurring, bio-engineered or synthesized
component of any such micro-organism, pathogen, or infectious substance,
whatever its origin or method of production, capable of causing--
(1) death, disease, or other biological malfunction in a
human, an animal, a plant, or another living organism;
(2) deterioration of food, water, equipment, supplies, or
materials of any kind; or
(3) deleterious alteration of the environment.
SEC. 603. BANKRUPTCY ACTIONS.
Section 362(b) of title 11, United States Code, is amended--
(1) by striking paragraphs (4) and (5); and
(2) by inserting after paragraph (3) the following:
``(4) under paragraph (1), (2), (3), or (6) of subsection
(a) of this section, of the commencement or continuation of an
action or proceeding by a governmental unit or any organization
exercising authority under the Convention on the Prohibition of
the Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction, opened for signature on
January 13, 1993, to enforce such governmental unit's or
organization's police and regulatory power, including the
enforcement of a judgment other than a money judgment, obtained
in an action or proceeding by the governmental unit to enforce
such governmental unit's or organization's police or regulatory
power;''.
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