[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2221 Introduced in Senate (IS)]
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Chemical Weapons Convention
Implementation Act of 1994''.
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. 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.
SEC. 3. CONGRESSIONAL FINDINGS.
The Congress makes the following findings:
(1) Chemical weapons pose a significant threat to the
national security of the United States and are a scourge to
humankind.
(2) The Chemical Weapons Convention is the best means of
ensuring the nonproliferation of chemical weapons and their
eventual destruction and forswearing by all nations.
(3) The verification procedures contained in the Chemical
Weapons Convention and the faithful adherence of nations to
them, including the United States, are crucial to the success
of the Convention.
(4) The declarations and inspections required by the
Chemical Weapons Convention are essential for the effectiveness
of the verification regime.
SEC. 4. CONGRESSIONAL DECLARATIONS.
The Congress makes the following declarations:
(1) It shall be the policy of the United States to
cooperate with other States Parties to the Chemical Weapons
Convention and afford the appropriate form of legal assistance
to facilitate the implementation of the prohibitions contained
in title II of this Act.
(2) It shall be the policy of the United States, during the
implementation of its obligations under the Chemical Weapons
Convention, to assign the highest priority to ensuring the
safety of people and to protecting the environment, and to
cooperate as appropriate with other States Parties to the
Convention in this regard.
(3) It shall be the policy of the United States to
minimize, to the greatest extent practicable, the
administrative burden and intrusiveness of measures to
implement the Chemical Weapons Convention placed on commercial
and other private entities, and to take into account the
possible competitive impact of regulatory measures on industry,
consistent with the obligations of the United States under the
Convention.
SEC. 5. DEFINITIONS.
(a) In General.--Except as otherwise provided in this Act, the
definitions of the terms used in this Act shall be those contained in
the Chemical Weapons Convention.
(b) Other Definitions.--
(1) The term ``Chemical Weapons Convention'' means 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.
(2) 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)).
(3) The term ``United States,'' when used in a geographical
sense, includes all places under the jurisdiction or control of
the United States, including--
(A) any of the places within the provisions of
section 101(41) of the Federal Aviation Act of 1958, as
amended (49 U.S.C. App. Sec. 1301(41)),
(B) any public aircraft or civil aircraft of the
United States, as such terms are defined in sections
101 (36) and (18) of the Federal Aviation Act of 1958,
as amended (49 U.S.C. App. Secs. 1301(36) and
1301(18)), 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)).
(4) The term ``person,'' except as used in section 201 of
this Act and as set forth below, means--
(A) 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; and
(B) any legal successor, representative, agent or
agency of the foregoing located in the United States.
The phrase ``located in the United States'' in the term
``person'' shall not apply to the term ``person'' as
used in the phrases ``person located outside the
territory'' in sections 203(b), 203(c) and 302(c) of
this Act and ``person located in the territory'' in
section 203(b) of this Act.
(5) The term ``Technical Secretariat'' means the Technical
Secretariat of the Organization for the Prohibition of Chemical
Weapons established by the Chemical Weapons Convention.
SEC. 6. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held invalid, the remainder of this
Act, or the application of such provision to persons or circumstances
other than those as to which it is held invalid, shall not be affected
thereby.
TITLE I--NATIONAL AUTHORITY
SEC. 101. ESTABLISHMENT.
Pursuant to paragraph 4 of article VII of the Chemical Weapons
Convention, the President or the designee of the President shall
establish the ``United States National Authority'' to, inter alia,
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.
TITLE II--APPLICATION OF CONVENTION PROHIBITIONS TO NATURAL AND LEGAL
PERSONS
SEC. 201. CRIMINAL PROVISIONS.
(a) In General.--Part I of title 18, United States Code, is amended
by--
(1) redesignating chapter 11A relating to child support as
chapter 11B; and
(2) inserting after chapter 11 relating to bribery, graft
and conflicts of interest the following new chapter:
``CHAPTER 11A--CHEMICAL WEAPONS
``Sec.
``227. Penalties and prohibitions with respect to chemical weapons.
``227A. Seizure, forfeiture, and destruction.
``227B. Injunctions.
``227C. Other prohibitions.
``227D. Definitions.
``SEC. 227. PENALTIES AND PROHIBITIONS WITH RESPECT TO CHEMICAL
WEAPONS.
``(a) In General.--Except as provided in subsection (b), whoever
knowingly develops, produces, otherwise acquires, stockpiles, retains,
directly or indirectly transfers, uses, owns or possesses any chemical
weapon, or knowingly assists, encourages or induces, in any way, any
person to do so, or attempts or conspires to do so, shall be fined
under this title or imprisoned for life or any term of years, or both.
``(b) Exclusion.--Subsection (a) shall not apply to the retention,
ownership or possession of chemical weapon, that is permitted by the
Chemical Weapons Convention pending the weapon's destruction, by any
agency or department of the United States. This exclusion shall apply
to any person, including members of the Armed Forces of the United
States, who is authorized by any agency or department of the United
States to retain, own or possess a chemical weapon, unless that person
knows or should have known that such retention, ownership or possession
is not permitted by the Chemical Weapons Convention.
``(c) Jurisdiction.--There is jurisdiction by the United States
over the prohibited activity in subsection (a) if (1) the prohibited
activity takes place in the United States or (2) the prohibited
activity takes place outside of the United States and is committed by a
national of the United States.
``(d) Additional Penalty.--The court shall order that any person
convicted of any offense under this section pay to the United States
any expenses incurred incident to the seizure, storage, handling,
transportation and destruction or other disposition of property seized
for the violation of this section.
``SEC. 227A. SEIZURE, FORFEITURE, AND DESTRUCTION.
``(a) Seizure.--
``(1) Except as provided in paragraph (2), the Attorney
General may request the issuance, in the same manner as
provided for a search warrant, of a warrant authorizing the
seizure of any chemical weapon defined in section 227D(2)(A) of
this title that is of a type or quantity that under the
circumstances is inconsistent with the purposes not prohibited
under the Chemical Weapons Convention.
``(2) In exigent circumstances, seizure and destruction of
any such chemical weapon described in paragraph (1) may be made
by the Attorney General upon probable cause without the
necessity for a warrant.
``(b) Procedure for Forfeiture and Destruction.--Property seized
pursuant to subsection (a) shall be forfeited to the United States.
Except as inconsistent herewith, the provisions of chapter 46 of this
title relating to civil forfeitures shall extend to a seizure or
forfeiture under this section. The Attorney General shall provide for
the destruction or other appropriate disposition of any chemical weapon
seized and forfeited pursuant to this section.
``(c) Affirmative Defense.--It is an affirmative defense against a
forfeiture under subsection (b) that--
``(1) such alleged chemical weapon is for a purpose not
prohibited under the Chemical Weapons Convention; and
``(2) such alleged chemical weapon is of a type and
quantity that under the circumstances is consistent with that
purpose.
``(d) Other Seizure, Forfeiture, and Destruction.--
``(1) Except as provided in paragraph (2), the Attorney
General may request the issuance, in the same manner as
provided for a search warrant, of a warrant authorizing the
seizure of any chemical weapon defined in section 227D(2) (B)
or (C) of this title that exists by reason of conduct
prohibited under section 227 of this title.
``(2) In exigent circumstances, seizure and destruction of
any such chemical weapon described in paragraph (1) may be made
by the Attorney General upon probable cause without the
necessity for a warrant.
``(3) Property seized pursuant to this subsection shall be
summarily forfeited to the United States and destroyed.
``(e) Assistance.--The Attorney General may request assistance from
any agency or department 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. 227B. INJUNCTIONS.
``(a) In General.--The United States may obtain in a civil action
an injunction against--
``(1) the conduct prohibited under section 227 of this
title;
``(2) the preparation or solicitation to engage in conduct
prohibited under section 227 of this title; or
``(3) the development, production, other acquisition,
stockpiling, retention, direct or indirect transfer, use,
ownership or possession, or the attempted development,
production, other acquisition, stockpiling, retention, direct
or indirect transfer, use, ownership or possession, of any
alleged chemical weapon defined in section 227D(2)(A) of this
title that is of a type or quantity that under the
circumstances is inconsistent with the purposes not prohibited
under the Chemical Weapons Convention, or the assistance to any
person to do so.
``(b) Affirmative Defense.--It is an affirmative defense against an
injunction under subsection (a)(3) that--
``(1) the conduct sought to be enjoined is for a purpose
not prohibited under the Chemical Weapons Convention; and
``(2) such alleged chemical weapon is of a type and
quantity that under the circumstances is consistent with that
purpose.
``SEC. 227C. OTHER PROHIBITIONS.
``(a) In General.--Except as provided in subsection (b), whoever
knowingly uses riot control agents as a method of warfare, or knowingly
assists any person to do so, shall be fined under this title or
imprisoned for a term of not more than ten years, or both.
``(b) Exclusion.--Subsection (a) shall not apply to members of the
Armed Forces of the United States. Members of the Armed Forces of the
United States who use riot control agents as a method of warfare shall
be subject to appropriate military penalties.
``(c) Jurisdiction.--There is jurisdiction by the United States
over the prohibited activity in subsection (a) if (1) the prohibited
activity takes place in the United States or (2) the prohibited
activity takes place outside of the United States and is committed by a
national of the United States.
``SEC. 227D. DEFINITIONS.
``As used in this chapter, the term--
``(1) `Chemical Weapons Convention' means 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;
``(2) `chemical weapon' means the following, together or
separately--
``(A) a toxic chemical and its precursors, except
where intended for a purpose not prohibited under the
Chemical Weapons Convention, 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 the 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; or
``(C) any equipment specifically designed for use
directly in connection with the employment of munitions
or devices specified in subparagraph (B);
``(3) `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. This
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;
``(4) `precursor' means any chemical reactant which takes
part at any stage in the production by whatever method of a
toxic chemical. This includes any key component of a binary or
multicomponent chemical system;
``(5) `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;
``(6) `purpose not prohibited under the Chemical Weapons
Convention' means--
``(A) industrial, agricultural, research, medical,
pharmaceutical or other peaceful purposes;
``(B) protective purposes, namely those purposes
directly related to protection against toxic chemicals
and to protection against chemical weapons;
``(C) military purposes not connected with the use
of chemical weapons and not dependent on the use of the
toxic properties of chemicals as a method of warfare;
or
``(D) law enforcement purposes, including domestic
riot control purposes;
``(7) `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));
``(8) `United States,' when used in a geographical sense,
includes all places under the jurisdiction or control of the
United States, including--
``(A) any of the places within the provisions of
section 101(41) of the Federal Aviation Act of 1958, as
amended (49 U.S.C. App. Sec. 1301(41)),
``(B) any public aircraft or civil aircraft of the
United States, as such terms are defined in sections
101(36) and (18) of the Federal Aviation Act of 1958,
as amended (49 U.S.C. App. Secs. 1301(36) and
1301(18)), 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));
``(9) `person' means--
``(A) 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; and
``(B) any legal successor, representative, agent or
agency of the foregoing; and
``(10) `riot control agent' means any chemical not listed
in a Schedule in the Annex on Chemicals of the Chemical Weapons
Convention, which can produce rapidly in humans sensory
irritation or disabling physical effects which disappear within
a short time following termination of exposure.''
(b) Clerical Amendments.--The table of chapters for part I of title
18, United States Code, is amended by--
(1) in the item for chapter 11A relating to child support,
redesignating ``11A'' as ``11B''; and
(2) inserting after the item for chapter 11 the following
new item:
``11A. Chemical Weapons
227.''......................................................
SEC. 202. EFFECTIVE DATE.
This title shall take effect on the date the Chemical Weapons
Convention enters into force for the United States.
SEC. 203. RESTRICTIONS ON SCHEDULED CHEMICALS.
(a) Schedule 1 Activities.--It shall be unlawful for any person or
any national of the United States located outside the United States to
produce, acquire, retain, transfer or use a chemical listed on Schedule
1 of the Annex on Chemicals of the Chemical Weapons Convention,
unless--
(1) the chemicals are applied to research, medical,
pharmaceutical or protective purposes;
(2) the types and quantities of chemicals are strictly
limited to those that can be justified for such purposes; and
(3) the amount of such chemicals per person at any given
time for such purposes does not exceed a limit to be determined
by the United States National Authority, but in any case, does
not exceed one metric ton.
(b) Extraterritorial Acts.--
(1) It shall be unlawful for any person or any national of
the United States located outside the United States to produce,
acquire, retain or use a chemical listed on Schedule 1 of the
Annex on Chemicals of the Chemical Weapons Convention outside
the territories of the States Parties to the Convention or to
transfer such chemicals to any person located outside the
territory of the United States, except as provided for in the
Convention for transfer to a person located in the territory of
another State Party to the Convention.
(2) Beginning three years after the entry into force of the
Chemical Weapons Convention, it shall be unlawful for any
person or any national of the United States located outside the
United States to transfer a chemical listed on Schedule 2 of
the Annex on Chemical of the Convention to any person located
outside the territory of a State Party to the Convention or to
receive such a chemical from any person located outside the
territory of a State Party to the Convention.
(c) Jurisdiction.--There is jurisdiction by the United States over
the prohibited activity in subsections (a) and (b) if (1) the
prohibited activity takes place in the United States or (2) the
prohibited activity taken place outside of the United States and is
committed by a national of the United States.
TITLE III--DECLARATIONS BY CHEMICAL INDUSTRY
SEC. 301. REPORTING OF INFORMATION.
(a) Reports.--The Department of Commerce shall promulgate
regulations under which each person who produces, processes, consumes,
exports or imports, or proposes to produce, process, consume, export or
import, a chemical substance subject to the Chemical Weapons Convention
shall maintain and permit access to such records and shall submit to
the Department of Commerce such reports as the United States National
Authority may reasonably require pursuant to the Chemical Weapons
Convention. The Department of Commerce shall promulgate regulations
pursuant to this title expeditiously, and may amend or change such
regulations as necessary.
(b) Coordination.--To the extent feasible, the United States
National Authority shall not require any reporting that is unnecessary,
or duplicative of reporting required under any other Act. Agencies and
department shall coordinate their actions with other agencies and
departments to avoid duplication of reporting by the affected persons
under this Act or any other Act.
SEC. 302. DISCLOSURE OF INFORMATION ON MATERIALS.
(a) In General.--Any information or materials reported to, or
otherwise obtained by, the United States National Authority or the
Department of Commerce, or any other agency or department under this
Act or the Chemical Weapons Convention may be withheld from public
disclosure or provision only to the extent permitted by law.
Information or materials obtained from declarations or inspections
required by the Chemical Weapons Convention, that are not already in
the public domain, shall be withheld from public disclosure or
provision and shall not be required to be disclosed pursuant to section
552 of title 5, United States Code, except that such information or
material--
(1) 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) shall be made available to any committee or
subcommittee of Congress of 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, or member thereof, shall disclose such
information or material;
(3) shall be disclosed to other agencies or departments for
law enforcement purposes with regard to this Act or any other
Act, and may be disclosed or otherwise provided when relevant
in any proceeding under this Act or any other Act, 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; and
(4) may be disclosed, including in the form of categories
of information, if the United States National Authority
determines that such disclosure is in the national interest.
(b) Notice of Disclosure.--If the United States National Authority,
pursuant to subsection (a)(4), proposes to publish or disclose or
otherwise provide information or materials exempted from disclosure in
subsection (a), the United States National Authority shall, where
appropriate, notify the person who submitted such information or
materials of the intent to release such information or materials. Where
notice has been provided, the United States National Authority may not
release such information or materials until the expiration of 30 days
after notice has been provided.
(c) Criminal Penalty for Wrongful Disclosure.--Any officer or
employee of the United States or former officer or employee of the
United States, who by virtue of such employment or official position
has obtained possession of, or has access to, information or materials
the disclosure or other provision of which is prohibited by subsection
(a), and who knowing that disclosure or provision of such information
or materials is prohibited by such subsection, willfully discloses or
otherwise provides the information or materials in any manner to any
person, including persons located outside the territory of the United
States, not entitled to receive it, shall be fined under title 18,
United States Code, or imprisoned for not more than five years, or
both.
(d) International Inspectors.--The provisions of this section on
disclosure or provision of information or materials shall also apply to
employees of the Technical Secretariat.
SEC. 303. PROHIBITED ACTS.
It shall be unlawful for any person to fail or refuse to (a)
establish or maintain records, (b) submit reports, notices, or other
information to the Department of Commerce or the United States National
Authority, or (c) permit access to or copying of records, as required
by this Act or a regulation thereunder.
TITLE IV--INSPECTIONS
SEC. 401. INSPECTIONS OF CHEMICAL INDUSTRY.
(a) Authority.--For purposes of administering this Act--
(1) 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 Chemical Weapons Convention; and
(2) any duly designated representative of an agency or
department may accompany members of an inspection team of the
Technical Secretariat during the inspection specified in
paragraph (1).
(b) Notice.--An inspection pursuant to subsection (a) may be made
only upon issuance of a written notice to the owner and to the
operator, occupant or agent in charge of the premises to be inspected,
except that failure to receive a notice shall not be a bar to the
conduct of an inspection. The notice shall be submitted to the owner
and to the operator, occupant or agent in charge as soon as possible
after the United States National Authority receives it from the
Technical Secretariat. The notice shall include 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, including, for challenge inspections pursuant to Article IX of
the Chemical Weapons Convention, appropriate evidence or reasons
provided by the requesting State Party to the Convention with regard to
its concerns about compliance with the Chemical Weapons Convention at
the facility or location. A separate notice shall be given for each
such inspection, but a notice shall not be required for each entry made
during the period covered by the inspection.
(c) Credentials.--If the owner, operator, occupant or agent in
charge of the premises to be inspected is present, a member of the
inspection team of the Technical Secretariat, as well as, if present,
the representatives of agencies or departments, shall present
appropriate credentials before the inspection is commenced.
(d) Time Frame for Inspections.--Consistant with the provisions of
the Chemical Weapons Convention, each inspection shall be commenced and
completed with reasonable promptness and shall be conducted at
reasonable times, within reasonable limits, and in a reasonable manner.
The Department of Commerce shall endeavor to ensure that, to the extent
possible, each inspection is commenced, conducted and concluded during
ordinary working hours, but no inspection shall be prohibited or
otherwise disrupted for commencing, continuing or concluding during
other hours. However, nothing in this subsection shall be interpreted
as modifying the time frames established in the Chemical Weapons
Convention.
(e) Scope.--
(1) Except as provided in paragraph (2) of this subsection
and subsection (f), an inspection conducted under this title
may extend to all things within the premises inspected
(including records, files, papers, processes, controls,
structures and entering and existing vehicles) related to
whether the requirements of the Chemical Weapons Convention
applicable to such premises have been complied with.
(2) To the extent possible consistent with the obligations
of the United States pursuant to the Chemical Weapons
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; or
(G) data maintained for compliance with
environmental or occupational health and safety
regulations.
(f) Facility Agreements.--
(1) Inspections of plants, plant sites, or other facilities
or locations for which the United States has a facility
agreement with the Organization for the Prohibition of Chemical
Weapons shall be conducted in accordance with the facility
agreement.
(2) Facility agreements shall be concluded for plants,
plant sites, or other facilities or locations that are subject
to inspection pursuant to paragraph 4 of Article VI of the
Chemical Weapons Convention unless the owner and the operator,
occupant or agent in charge of the facility and the Technical
Secretariat agree that such an agreement is not necessary.
Facility agreements should be 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
Chemical Weapons Convention if so requested by the owner and
the operator, occupant or agent in charge of the facility.
(3) The owner and the operator, occupant or agent in charge
shall, to the extent practicable consistent with the
obligations of the United States under the Chemical Weapons
Convention, participate in the negotiation of all facility
agreements concluded pursuant to the Convention.
(g) Sampling and Safety.--
(1) The Department of Commerce 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
Chemical Weapons 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.
(2) 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.
(h) Coordination.--To the extent possible consistent with the
obligations of the United States pursuant to the Chemical Weapons
Convention, the representatives of the United States National
Authority, the Department of Commerce and any other agency or
department, 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. 402. OTHER INSPECTIONS AND LEAD AGENCY.
(a) Other Inspections.--The provisions of this title shall apply,
as appropriate, to all other inspections authorized by the Chemical
Weapons Convention. For all inspections other than those conducted
pursuant to paragraph 4, 5 or 6 of article VI of the Convention, the
term ``Department of Commerce'' shall be replaced by the term ``Lead
Agency'' in section 401.
(b) Lead Agency.--For the purposes of this title, the term ``Lead
Agency'' means the agency or department designated by the President or
the designee of the President to exercise the functions and powers set
forth in the specific provision, based, inter alia, on the particular
responsibilities of the agency or department within the United States
Government and the relationship of the agency or department to the
premises to be inspected.
SEC. 403. PROHIBITED ACTS.
It shall be unlawful for any person to fail or refuse to permit
entry or inspection, or to disrupt, delay or otherwise impede an
inspection as required by this Act or the Chemical Weapons Convention.
SEC. 404. PENALTIES.
(a) Civil.--
(1) Any person who violates a provision of section 203, 303
or 403 of this Act shall be liable to the United States for a
civil penalty in an amount not to exceed $50,000 for each such
violation. For purposes of this subsection, each day such a
violation of section 403 continues shall constitute a separate
violation of section 403.
(2)(A) A civil penalty for a violation of section 203, 303
or 403 of this Act shall be assessed by the Lead Agency by an
order made on the record after opportunity (provided in
accordance with this subparagraph) for a hearing in accordance
with section 554 of title 5, United States Code. Before issuing
such an order, the Lead Agency shall give written notice to the
person to be assessed a civil penalty under such order of the
Lead Agency's proposal to issue such order and provide such
person an opportunity to request, within 15 days of the date
the notice is received by such person, such a hearing on the
order.
(B) In determining the amount of a civil penalty, the Lead
Agency shall take into account the nature, circumstances,
extent and gravity of the violation or violations and, with
respect to the violator, ability to pay, effect on ability to
continue to do business, any history of prior such violations,
the degree of culpability, and such other matters as justice
may require.
(C) The Lead Agency may compromise, modify or remit, with
or without conditions, any civil penalty which may be imposed
under this subsection. The amount of such penalty, when finally
determined, or the amount agreed upon in compromise, may be
deducted from any sums owing by the United States to the person
charged.
(3) any person who requested in accordance with paragraph
(2)(A) a hearing respecting the assessment of a civil penalty
and who is aggrieved by an order assessing a civil penalty may
file a petition for judicial review of such order with the
United States Court of Appeals for the District of Columbia
Circuit or for any other circuit in which such person resides
or transacts business. Such a petition may be filed only within
the 30-day period beginning on the date the order making such
assessment was issued.
(4) If any person fails to pay an assessment of a civil
penalty--
(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 (3); or
(B) after a court in an action brought under
paragraph (3) has entered a final judgment in favor of
the Lead Agency;
the Attorney General shall recover the amount assessed (plus
interest at currently prevailing rates from the date of the
expiration of the 30-day period referred to in paragraph (3) or
the date of such final judgment, as the case may be) in an
action brought in any appropriate district court of the United
States. In such an action, the validity, amount and
appropriateness of such penalty shall not be subject to review.
(b) Criminal.--Any person who knowingly violates any provision of
section 203, 303 or 403 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 two years, or both.
SEC. 405. SPECIFIC ENFORCEMENT.
(a) Jurisdiction.--The district courts of the United States shall
have jurisdiction over civil actions to--
(1) restrain any violation of section 203, 303 or 403 of
this Act; and
(2) compel the taking of any action required by or under
this Act or the Chemical Weapons Convention.
(b) Civil Actions.--A civil action described in subsection (a) may
be brought--
(1) in the case of a civil action described in subsection
(a)(1), in the United States district court for the judicial
district wherein any act, omission, or transaction constituting
a violation of section 203, 303 or 403 of this Act occurred or
wherein the defendant is found or transacts business; or
(2) in the case of a civil action described in subsection
(a)(2), in the United States district court for the judicial
district wherein the defendant is found or transacts business.
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. 406. LEGAL PROCEEDINGS.
(A) Warrants.--
(1) The lead agency shall seek the consent of the owner or
the operator, occupant or agent in charge of the premises to be
inspected prior to the initiation of any inspection. Before or
after seeking such consent, the lead agency may seek a search
warrant from any official authorized to issue search warrants.
Proceedings regarding the issuance of a search warrant shall be
conducted ex parte, unless otherwise requested by the lead
agency. The lead agency shall provide to the official
authorized to issue search warrants 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, including, for challenge inspections
pursuant to article IX of the Chemical Weapons Convention,
appropriate evidence or reasons provided by the requesting
State Party to the Convention with regard to its concerns about
compliance with the Chemical Weapons Convention at the facility
or location. The lead agency 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) The official authorized to issue search warrants shall
promptly issue a warrant authorizing the requested inspection
upon an affidavit submitted by the lead agency 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 subject to the
specific type of inspection requested under the
Chemical Weapons Convention;
(C) the procedures established under the Chemical
Weapons Convention and this Act for initiating an
inspection have been complied with; and
(D) the lead agency will ensure that the inspection
is conducted in a reasonable manner and will not exceed
the scope or duration set forth in or authorized by the
Chemical Weapons Convention of this Act.
(3) The warrant shall specify the type of inspection
authorized; the purpose of the inspection; the type of plant
site, plant, or other facility or location to be inspected; to
the extent possible, the items, documents and areas that may be
inspected; the earliest commencement and latest concluding
dates and times of the inspection; and the identities of the
representatives of the Technical Secretariat, if known, and, if
applicable, the representatives of agencies or departments.
(b) Subpoenas.--In carrying out this Act, the lead agency may by
subpoena require the attendance and testimony of witnesses and the
production of reports, papers, documents, answers to questions and
other information that the lead agency deems necessary. Witnesses shall
be paid the same fees and mileage that are paid witnesses in the courts
of the United States. In the event of contumacy, failure or refusal of
any person to obey any such subpoena, any district court of the United
States in which venue is proper shall have jurisdiction to order any
such person to comply with such subpoena. Any failure to obey such an
order of the court is punishable by the court as a contempt thereof.
(c) Injunctions and Other Orders.--No court shall issue an
injunction or other order that would limit the ability of the Technical
Secretariat to conduct, or the United States National Authority or the
lead agency to facilitate inspections as required or authorized by the
Chemical Weapons Convention.
SEC. 407. AUTHORITY.
The lead agency may issue such regulations as are necessary to
implement this title and the provisions of the Chemical Weapons
Convention, and amend or revise them as necessary. The lead agency
shall have the authority to appoint officials to issue warrants
pursuant to section 406(a) authorizing inspections pursuant to this
title.
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