22 USC Ch. 75: CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

From Title 22—FOREIGN RELATIONS AND INTERCOURSE

CHAPTER 75—CHEMICAL WEAPONS CONVENTION IMPLEMENTATION

Sec.

6701.

Definitions.

SUBCHAPTER I—GENERAL PROVISIONS

6711.

Designation of United States National Authority.

6712.

No abridgement of constitutional rights.

6713.

Civil liability of United States.

SUBCHAPTER II—INSPECTIONS

6721.

Definitions.

6722.

Facility agreements.

6723.

Authority to conduct inspections.

6724.

Procedures for inspections.

6725.

Warrants.

6726.

Prohibited acts relating to inspections.

6727.

National security exception.

6728.

Annual report on inspections.

6729.

United States assistance in inspections at private facilities.

SUBCHAPTER III—REPORTS

6741.

Reports required by United States National Authority.

6742.

Prohibition relating to low concentrations of Schedules 2 and 3 chemicals.

6743.

Prohibition relating to unscheduled discrete organic chemicals and coincidental byproducts in waste streams.

6744.

Confidentiality of information.

6745.

Recordkeeping violations.

SUBCHAPTER IV—ENFORCEMENT

6761.

Penalties.

6762.

Specific enforcement.

6763.

Expedited judicial review.

SUBCHAPTER V—MISCELLANEOUS PROVISIONS

6771.

Prohibition.

§6701. Definitions

In this chapter:

(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 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 1101(a)(22) of title 8.

(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 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 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 (≤C₁₀, incl. cycloalkyl) alkyl

(Me, Et, n-Pr or i-Pr)-phosphonofluoridates

(e.g. Sarin: O-Isopropyl methylphosphonofluoridate Soman: O-Pinacolyl methylphosphonofluoridate).

(B) O-Alkyl (≤C₁₀, incl. cycloalkyl) N,N-dialkyl

(Me, Et, n-Pr or i-Pr)-phosphoramidocyanidates

(e.g. Tabun: O-Ethyl N,N-dimethyl phosphoramidocyanidate).

(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 ¹

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 ≤C₁₀, 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.

(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.

(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.

(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.

(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) ² of section 40102 of title 49;

(B) any civil aircraft of the United States or public aircraft, as such terms are defined in paragraphs (17) and (37),² respectively, of section 40102 of title 49; and

(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.

(Pub. L. 105–277, div. I, §3, Oct. 21, 1998, 112 Stat. 2681–856.)

Editorial Notes

References in Text

This chapter, referred to in text, was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out below and Tables.

Paragraphs (17), (37), and (41) of section 40102 of title 49, referred to in par. (14)(A) and (B), probably were originally meant to refer to paragraphs (17), (37), and (41) of subsection (a) of section 40102 of title 49. Paragraphs (37) and (41) were subsequently redesignated as (41) and (46), respectively, by Pub. L. 108–176, title II, §225(a)(1), (3), Dec. 12, 2003, 117 Stat. 2528.

Codification

In par. 14(C), "section 70502(b) of title 46" substituted for "section 3(b) of the Maritime Drug Enforcement Act, as amended (46 U.S.C., App. sec. 1903(b))", meaning section 3(b) of the Maritime Drug Law Enforcement Act, on authority of Pub. L. 109–304, §18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted section 70502 of Title 46, Shipping.

Statutory Notes and Related Subsidiaries

Short Title

Pub. L. 105–277, div. I, §1, Oct. 21, 1998, 112 Stat. 2681–856, provided that: "This Division [enacting this chapter, sections 229 to 229F of Title 18, Crimes and Criminal Procedure, and section 436 of Title 41, Public Contracts, amending section 362 of Title 11, Bankruptcy, and section 2332a of Title 18, repealing section 2332c of Title 18 and section 1520 of Title 50, War and National Defense, and enacting provisions set out as a note under section 229 of Title 18] may be cited as the 'Chemical Weapons Convention Implementation Act of 1998'."

Regulations

Regulations, orders, or directives to implement this chapter to be issued, amended, or revised by Departments of State and Commerce, and other agencies as appropriate, see section 3 of Ex. Ord. No. 13128, June 25, 1999, 64 F.R. 34703, set out as a note under section 6711 of this title.

Executive Documents

Delegation of Functions

For delegation of functions under this chapter, see section 5 of Ex. Ord. No. 13128, June 25, 1999, 64 F.R. 34703, set out as a note under section 6711 of this title.

¹ So in original. Probably should not be preceded by an open parenthesis.

² See References in Text note below.

SUBCHAPTER I—GENERAL PROVISIONS

§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 chapter 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 chapter.

(e) Implementation

The President is authorized to implement and carry out the provisions of this chapter 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 chapter 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.

(Pub. L. 105–277, div. I, title I, §101, Oct. 21, 1998, 112 Stat. 2681–860.)

Editorial Notes

References in Text

This chapter, referred to in subsecs. (b)(2), (d), and (e), was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables.

Executive Documents

Ex. Ord. No. 13128. Implementation of the Chemical Weapons Convention and the Chemical Weapons Convention Implementation Act

Ex. Ord. No. 13128, June 25, 1999, 64 F.R. 34703, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Chemical Weapons Convention Implementation Act of 1998 [22 U.S.C. 6701 et seq.] (as enacted in Division I of Public Law 105–277) (the Act), the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code, and in order to facilitate implementation of the Act and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (the "Convention"), it is hereby ordered as follows:

Section 1. The Department of State shall be the United States National Authority (the "USNA") for purposes of the Act and the Convention.

Sec. 2. The USNA shall coordinate the implementation of the provisions of the Act and the Convention with an interagency group consisting of the Secretary of Defense, the Attorney General, the Secretary of Commerce, the Secretary of Energy, and the heads of such other agencies or departments, or their designees, I may consider necessary or advisable.

Sec. 3. The Departments of State and Commerce, and other agencies as appropriate, each shall issue, amend, or revise regulations, orders, or directives as necessary to implement the Act and U.S. obligations under Article VI and related provisions of the Convention. Regulations under section 401(a) of the Act [22 U.S.C. 6741(a)] shall be issued by the Department of Commerce by a date specified by the USNA, which shall review and approve these regulations, in coordination with the interagency group designated in section 2 of this order, prior to their issuance.

Sec. 4. The Secretary of Commerce is authorized:

(a) to obtain and execute warrants pursuant to section 305 of the Act [22 U.S.C. 6725] for the purposes of conducting inspections of facilities subject to the regulations issued by the Department of Commerce pursuant to section 3 of this order;

(b) to suspend or revoke export privileges pursuant to section 211 of the Act [18 U.S.C. 229 note]; and

(c) to carry out all functions with respect to proceedings under section 501(a) of the Act [22 U.S.C. 6761(a)] and to issue regulations with respect thereto, except for those functions that the Act specifies are to be performed by the Secretary of State or the USNA.

Sec. 5. The Departments of State, Defense, Commerce, and Energy, and other agencies as appropriate, are authorized to carry out, consistent with the Act and in accordance with subsequent directives, appropriate functions that are not otherwise assigned in the Act and are necessary to implement the provisions of the Convention and the Act.

Sec. 6. The Departments of State, Defense, Commerce, and Energy, and other agencies, as appropriate, are authorized to provide assistance to facilities not owned or operated by the U.S. Government, or contracted for use by or for the U.S. Government, in meeting reporting requirements and in preparing the facilities for possible inspection pursuant to the Convention.

Sec. 7. The USNA, in coordination with the interagency group designated in section 2 of this order, is authorized to determine whether disclosure of confidential business information pursuant to section 404(c) of the Act [22 U.S.C. 6744(c)] is in the national interest. Disclosure will not be permitted if contrary to national security or law enforcement needs.

Sec. 8. In order to take additional steps with respect to the proliferation of weapons of mass destruction and means of delivering them and the national emergency described and declared in Executive Order 12938 of November 14, 1994 [listed in a table under section 1701 of Title 50, War and National Defense], as amended by Executive Order 13094 of July 30, 1998, section 3 of Executive Order 12938, as amended, is amended to add a new subsection (e) to read as follows:

"(e) the Secretary of Commerce shall impose and enforce such restrictions on the importation of chemicals into the United States as may be necessary to carry out the requirements of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction."

Sec. 9. Any investigation emanating from a possible violation of this order, or of any license, order, or regulation issued pursuant to this order, involving or revealing a possible violation of 18 U.S.C. section 229 shall be referred to the Federal Bureau of Investigation (FBI), which shall coordinate with the referring agency and other appropriate agencies. The FBI shall timely notify the referring agency and other appropriate agencies of any action it takes on such referrals.

Sec. 10. Nothing in this order shall create any right or benefit, substantive or procedural, enforceable by any party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

Sec. 11. (a) This order shall take effect at 12:01 a.m. eastern daylight time, June 26, 1999.

(b) This order shall be transmitted to the Congress and published in the Federal Register.

William J. Clinton.

§6712. No 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 chapter or the Convention.

(Pub. L. 105–277, div. I, title I, §102, Oct. 21, 1998, 112 Stat. 2681–861.)

Editorial Notes

References in Text

§6713. Civil liability of 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 chapter or the Convention. For purposes of this subsection, action taken pursuant to or under the color of this chapter 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 chapter.

(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 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 chapter.

(c) Waiver of sovereign immunity of 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 chapter.

(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 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 chapter.

(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 chapter; 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 [22 U.S.C. 2751 et seq.].

(ii) Sanctions under Export Administration Act of 1979

The authorities under section 6 ¹ 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) 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 262d of this title 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 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 [22 U.S.C. 2751 et seq.], 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 ¹ 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) 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 262d of this title 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 subparagraph (A) under the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et seq.], 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 chapter.

(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 chapter, 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 October 21, 1998—

(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 ² 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 chapter;

(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 6724(e)(2) of this title,

(B) any chemical structure,

(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,

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.

(Pub. L. 105–277, div. I, title I, §103, Oct. 21, 1998, 112 Stat. 2681–861.)

Editorial Notes

References in Text

The Arms Export Control Act, referred to in subsec. (e)(2)(B)(i), (3)(B)(i), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, which is classified principally to chapter 39 (§2751 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables.

The Export Administration Act of 1979, referred to in subsec. (e)(2)(B)(ii), (3)(B)(iv), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, which was classified principally to chapter 56 (§4601 et seq.) of Title 50, War and National Defense, prior to repeal by Pub. L. 115–232, div. A, title XVII, §1766(a), Aug. 13, 2018, 132 Stat. 2232, except for sections 11A, 11B, and 11C thereof (50 U.S.C. 4611, 4612, 4613). Sections 5 and 6 of the Act were classified to sections 4604 and 4605, respectively, of Title 50 prior to repeal.

The Foreign Assistance Act of 1961, referred to in subsec. (e)(3)(B)(vi), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, which is classified principally to chapter 32 (§2151 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2151 of this title and Tables.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on International Relations of House of Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

¹ See References in Text note below.

² So in original. Probably should be "losses".

SUBCHAPTER II—INSPECTIONS

§6721. Definitions

(a) In general

In this subchapter, 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) "Judge of the United States" defined

In this subchapter, the term "judge of the United States" means a judge or magistrate judge of a district court of the United States.

(Pub. L. 105–277, div. I, title III, §301, Oct. 21, 1998, 112 Stat. 2681–872.)

Editorial Notes

References in Text

This subchapter, referred to in text, was in the original "this title", meaning title III of div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–872, which enacted this subchapter and section 436 of former Title 41, Public Contracts. For complete classification of title III to the Code, see Tables. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.

§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 2 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 3 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, 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.

(Pub. L. 105–277, div. I, title III, §302, Oct. 21, 1998, 112 Stat. 2681–872.)

§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 subchapter.

(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 (and, in the case of an inspection of a United States Government facility, the designation of contractor personnel who shall be led by an employee 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

(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 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.

(c) Exception

The requirement under subsection (b)(2)(A) shall not apply to inspections of United States chemical weapons destruction facilities (as used within the meaning of part IV(C)(13) of the Verification Annex to the Convention).

(Pub. L. 105–277, div. I, title III, §303, Oct. 21, 1998, 112 Stat. 2681–873; Pub. L. 106–280, title III, §305, Oct. 6, 2000, 114 Stat. 854; Pub. L. 107–107, div. A, title XII, §1204(a), Dec. 28, 2001, 115 Stat. 1247.)

Editorial Notes

Amendments

2001—Subsec. (b)(2). Pub. L. 107–107 inserted "(and, in the case of an inspection of a United States Government facility, the designation of contractor personnel who shall be led by an employee of the Federal Government)" after "designation of employees of the Federal Government" in introductory provisions.

2000—Subsec. (c). Pub. L. 106–280 added subsec. (c).

Statutory Notes and Related Subsidiaries

Protection of United States Companies

Pub. L. 106–113, div. B, §1000(a)(7) [div. B, title XI, §1117], Nov. 29, 1999, 113 Stat. 1536, 1501A-489, provided that:

"(a) Reimbursement.—During the 2-year period beginning on the date of the enactment of this Act [Nov. 29, 1999], the United States National Authority (as designated pursuant to section 101 of the Chemical Weapons Convention Implementation Act of 1998 [22 U.S.C. 6711] (as contained in division I of Public Law 105–277)) shall, upon request of the Director of the Federal Bureau of Investigation, reimburse the Federal Bureau of Investigation for all costs incurred by the Bureau for such period in connection with implementation of section 303(b)(2)(A) of that Act [22 U.S.C. 6723(b)(2)(A)], except that such reimbursement may not exceed $2,000,000 for such 2-year period.

"(b) Report.—Not later than 180 days prior to the expiration of the 2-year period described in subsection (a), the Director of the Federal Bureau of Investigation shall prepare and submit to the Committee on International Relations [now Committee on Foreign Affairs] of the House of Representatives and the Committee on Foreign Relations of the Senate a report on how activities under section 303(b)(2)(A) of the Chemical Weapons Convention Implementation Act of 1998 [22 U.S.C. 6723(b)(2)(A)] will be fully funded and implemented by the Federal Bureau of Investigation notwithstanding the expiration of the 2-year period described in subsection (a)."

§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 6725 of this title, except where other procedures are provided in a facility agreement entered into under section 6722 of this title.

(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 (and, in the case of an inspection of a United States Government facility, any accompanying contractor personnel) 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 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 6725 of this title or a facility agreement entered into under section 6722 of this title, an inspection conducted under this subchapter 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 subchapter shall extend to—

(A) financial data;

(B) sales and marketing data (other than shipment 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 chapter 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.

(Pub. L. 105–277, div. I, title III, §304, Oct. 21, 1998, 112 Stat. 2681–874; Pub. L. 107–107, div. A, title XII, §1204(b), Dec. 28, 2001, 115 Stat. 1247.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (f)(1), was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables.

Amendments

2001—Subsec. (c). Pub. L. 107–107 substituted "Federal Government (and, in the case of an inspection of a United States Government facility, any accompanying contractor personnel)" for "Federal government".

§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 6724(a) of this title. 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 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 subchapter III of this chapter and is subject to routine inspection under the Convention;

(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 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 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 chapter 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.

(Pub. L. 105–277, div. I, title III, §305, Oct. 21, 1998, 112 Stat. 2681–875.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (b)(4)(B)(v), was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables.

Executive Documents

Delegation of Functions

For authority of Secretary of Commerce to obtain and execute certain warrants pursuant to this section, see section 4 of Ex. Ord. No. 13128, June 25, 1999, 64 F.R. 34703, set out as a note under section 6711 of this title.

§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 chapter.

(Pub. L. 105–277, div. I, title III, §306, Oct. 21, 1998, 112 Stat. 2681–878.)

Editorial Notes

References in Text

§6727. National security exception

Consistent with the objective of eliminating chemical weapons, the President may deny a request to inspect any facility in the United States in cases where the President determines that the inspection may pose a threat to the national security interests of the United States.

(Pub. L. 105–277, div. I, title III, §307, Oct. 21, 1998, 112 Stat. 2681–878.)

§6728. Annual report on inspections

(a) In general

Not later than one year after October 21, 1998, 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 subchapter III of this chapter.

(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) "Appropriate congressional committees" defined

The term "appropriate congressional committees" means the Committee on the Judiciary, the Committee on Foreign Relations, and the Select Committee on Intelligence of 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.

(Pub. L. 105–277, div. I, title III, §309, Oct. 21, 1998, 112 Stat. 2681–879.)

Statutory Notes and Related Subsidiaries

Change of Name

Executive Documents

Delegation of Functions

For delegation of congressional reporting functions of President under this section, see section 1 of Ex. Ord. No. 13313, July 31, 2003, 68 F.R. 46074, set out as a note under section 301 of Title 3, The President.

§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 632 of title 15.

(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.

(Pub. L. 105–277, div. I, title III, §310, Oct. 21, 1998, 112 Stat. 2681–880.)

SUBCHAPTER III—REPORTS

§6741. Reports required by 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

(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 chapter 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.

(Pub. L. 105–277, div. I, title IV, §401, Oct. 21, 1998, 112 Stat. 2681–880.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (b)(1), was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables.

Executive Documents

Regulations

Regulations under subsec. (a) to be issued by Department of Commerce by a date specified by Department of State as United States National Authority (USNA) and to be reviewed and approved by USNA in coordination with an interagency group, see section 3 of Ex. Ord. No. 13128, June 25, 1999, 64 F.R. 34703, set out as a note under section 6711 of this title.

§6742. Prohibition relating to low concentrations of Schedules 2 and 3 chemicals

(a) Prohibition

Notwithstanding any other provision of this chapter, 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.

(Pub. L. 105–277, div. I, title IV, §402, Oct. 21, 1998, 112 Stat. 2681–881.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (a), was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables.

§6743. Prohibition relating to unscheduled discrete organic chemicals and coincidental byproducts in waste streams

(a) ¹ Prohibition

(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.

(Pub. L. 105–277, div. I, title IV, §403, Oct. 21, 1998, 112 Stat. 2681–881.)

Editorial Notes

References in Text

¹ So in original. No subsec. (b) has been enacted.

§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 6713(g) of this title, reported to, or otherwise acquired by, the United States Government under this chapter or under the Convention shall not be disclosed under section 552(a) of title 5.

(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 chapter or any other law, and shall be disclosed or otherwise provided when relevant in any proceeding under this chapter 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 national interest

(1) Authority

The United States Government shall disclose any information reported to, or otherwise required by the United States Government under this chapter 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 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 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 ¹ of title 18.

(f) International inspectors

The provisions of this section shall also apply to employees of the Technical Secretariat.

(Pub. L. 105–277, div. I, title IV, §404, Oct. 21, 1998, 112 Stat. 2681–882.)

Editorial Notes

References in Text

This chapter, referred to in subsecs. (a), (b)(3), and (c)(1), was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables.

¹ So in original. Probably should be section "229B".

§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 chapter or any regulation prescribed under this chapter;

(2) to submit any report, notice, or other information to the United States Government in accordance with this chapter or any regulation prescribed under this chapter; or

(3) to permit access to or copying of any record that is exempt from disclosure under this chapter or any regulation prescribed under this chapter.

(Pub. L. 105–277, div. I, title IV, §405, Oct. 21, 1998, 112 Stat. 2681–883.)

Editorial Notes

References in Text

SUBCHAPTER IV—ENFORCEMENT

§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 6726 of this title 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 6726 of this title 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 6745 of this title shall be required by order to pay a civil penalty in an amount not to exceed $5,000 for each such violation.

(2) Hearing

(A) In general

Before imposing an order described in paragraph (1) against a person under this subsection for a violation of section 6726 or 6745 of this title, 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. 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 6726 or 6745 of this title, 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,

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 6726 or 6745 of this title, 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, imprisoned for not more than one year, or both.

(Pub. L. 105–277, div. I, title V, §501, Oct. 21, 1998, 112 Stat. 2681–883.)

Executive Documents

Delegation of Functions

For authority of Secretary of Commerce to carry out certain functions with respect to proceedings under subsec. (a), and to issue regulations with respect thereto, see section 4 of Ex. Ord. No. 13128, June 25, 1999, 64 F.R. 34703, set out as a note under section 6711 of this title.

§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 6726 or 6745 of this title; and

(2) compel the taking of any action required by or under this chapter 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 6726 or 6745 of this title 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.

(Pub. L. 105–277, div. I, title V, §502, Oct. 21, 1998, 112 Stat. 2681–885.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (a)(2), was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables.

§6763. Expedited judicial review

(a) Civil action

Any person or entity subject to a search under this chapter may file a civil action challenging the constitutionality of any provision of this chapter. Notwithstanding any other provision of law, during the full calendar year of, and the two full calendar years following October 21, 1998, 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 October 21, 1998, 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.

(Pub. L. 105–277, div. I, title V, §503, Oct. 21, 1998, 112 Stat. 2681–885.)

Editorial Notes

References in Text

SUBCHAPTER V—MISCELLANEOUS PROVISIONS

§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 chapter (as defined in section 6701(8) of this title).

(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.

(Pub. L. 105–277, div. I, title VI, §602, Oct. 21, 1998, 112 Stat. 2681–886.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (b), was in the original "this Act" and was translated as reading "this division", meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables.