[Congressional Record Volume 143, Number 46 (Thursday, April 17, 1997)]
[Senate]
[Pages S3354-S3359]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. LUGAR (for himself and Mr. Biden):
S. 610. 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; to the Committee on
the Judiciary.
THE CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT OF 1997
Mr. LUGAR. Mr. President, I introduce, by request, on behalf of
Senator Biden and myself, the Chemical Weapons Convention
Implementation Act.
The Chemical Weapons Convention was signed by the United States on
January 13, 1993, and was submitted by President Clinton to the United
States Senate on November 23, 1993, for its advice and consent to
ratification.
The Chemical Weapons Convention contains a number of provisions that
require implementing legislation to give them effect within the United
States. These include: international inspections of U.S. facilities;
declarations by U.S. chemical and related industry; and establishment
of a ``National Authority'' to serve as the liaison between the United
States and the international organization established by the Chemical
Weapons Convention and States Parties to the Convention.
Mr. President, I ask unanimous consent that this Implementation Act
that we are introducing at the request of the administration be printed
in the Record together with the transmitted letter to the President of
the Senate from ACDA Director John D. Holum.
[[Page S3355]]
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 610
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 1997.''
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--REPORTING
Sec. 301. Reporting of information.
Sec. 302. Confidentiality of information.
Sec. 303. Prohibited acts.
TITLE IV--INSPECTIONS
Sec. 401. Inspections pursuant to Article VI of the Chemical Weapons
Convention.
Sec. 402. Other inspections pursuant to the Chemical Weapons Convention
and lead agency.
Sec. 403. Prohibited acts.
Sec. 404. Penalties.
Sec. 405. Specific enforcement.
Sec. 406. Legal proceedings.
Sec. 407. Authority.
Sec. 408. Saving provision.
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 to 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. Nothing in
paragraphs 2 or 3 of Article II of the Chemical Weapons
Convention shall be construed to limit verification
activities pursuant to Parts X or XI of the Annex on
Implementation and Verification of the 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. Sec. 40102(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. Secs.
40102(37) and 40102(17)), 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 or 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) and 302(d) 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 a 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 the 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.--Except as
provided in paragraph (2) of subsection (a), property seized
pursuant to subsection (a) shall be forfeited to the United
States after notice to potential claimants and an opportunity
for a hearing.
[[Page S3356]]
At such a hearing, the Government shall bear the burden of
persuasion by a preponderance of the evidence. Except as
inconsistent herewith, the provisions of chapter 46 of this
title related 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. (For
the purpose of implementing the Chemical Weapons Convention,
toxic chemicals which have been identified for the
application of verification measures are listed in Schedules
contained in the Annex on Chemicals of the Chemical Weapons
Convention.);
``(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. (For the purpose of
implementing the Chemical Weapons Convention, precursors
which have been identified for the application of
verification measures are listed in Schedules contained in
the Annex on Chemicals of the Chemical Weapons convention.);
``(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 warefare; 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. Sec. 40102(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. Secs. 40102(37)
and 40102(17)), 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.
Nothing in paragraphs (3) or (4) of this section shall be
construed to limit verification activities pursuant to part X
or part XI of the Annex on Implementation and Verification of
the Chemical Weapons Convention.''
(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
[[Page S3357]]
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 Chemicals 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 takes place outside of
the United States and is committed by a national of the
United States.
TITLE III--REPORTING
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,
taking into account the written decisions issued by the
Organization for the Prohibition of Chemical Weapons, 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 departments 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. CONFIDENTIALITY OF INFORMATION.
(a) Freedom of Information Act Exemption for Certain
Chemical Weapons Convention Information.--Any information
reported to, or otherwise obtained by, the United States
National Authority, the Department of Commerce, or any other
agency or department under this Act or under the Chemical
Weapons Convention shall not be required to be publicly
disclosed pursuant to section 552 of title 5, United States
Code.
(b) Prohibited Disclosure and Exceptions.--Information
exempt from disclosure under subsection (a) shall not be
published or disclosed, except that such information--
(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.
(c) Notice of Disclosure.--If the United States National
Authority, pursuant to subsection (b)(4), proposes to publish
or disclose or otherwise provide information exempted from
disclosure in subsection (a), the United States National
Authority shall, where appropriate, notify the person who
submitted such information of the intent to release such
information. Where notice has been provided, the United
States National Authority may not release such information
until the expiration of 30 days after notice has been
provided.
(d) 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 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 person 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.
(e) International Inspectors.--The provisions of this
section on disclosure or provision of information 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 PURSUANT TO ARTICLE VI OF THE CHEMICAL
WEAPONS CONVENTION.
(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) the National Authority shall designate representatives
who may accompany members of an inspection team of the
Technical Secretariat during the inspection specified in
paragraph (1). The number of duly designated representatives
shall be kept to the minimum necessary.
(b) Notice.--An inspection pursuant to subjection (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 presented, 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.--Consistent 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 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;
(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) Facility Agreements.--
(1) Inspection 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 paragraphs 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
of a facility shall be notified prior to the development of
the agreement relating to that facility and, if they so
[[Page S3358]]
request, may participate in the preparations for the
negotiation of such an agreement. To the extent practicable
consistent with the Chemical Weapons 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 for the Prohibition of Chemical
Weapons concerning that facility.
(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 PURSUANT TO THE CHEMICAL WEAPONS
CONVENTION 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 paragraphs 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) (A) Any person who violates a provision of section 203
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.
(B) Any person who violates a provision of section 303 of
this Act shall be liable to the United States for a civil
penalty in an amount not to exceed $5,000 for each such
violation.
(C) Any person who violates a provision of section 403 of
this Act shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000 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, the existence of an
internal compliance program, 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 or 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
[[Page S3359]]
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.
(a) Regulations.--The Lead Agency may issue such
regulations as are necessary to implement and enforce this
title and the provisions of the Chemical Weapons Convention,
and amend or revise them as necessary.
(b) Enforcement.--The Lead Agency may designate officers or
employees of the agency or department to conduct
investigations pursuant to this Act. In conducting such
investigations, those officers or employees may, to the
extent necessary or appropriate for the enforcement of this
Act, or for the imposition of any penalty or liability
arising under this Act, exercise such authorities as are
conferred upon them by other laws of the United States.
SEC. 408. SAVING PROVISION.
The purpose of this Act is to enable the United States to
comply with its obligations under the Chemical Weapons
Convention. Accordingly, in addition to the authorities set
forth in this Act, the President is authorized to issue such
executive orders, directives or regulations as are necessary
to fulfill the obligations of the United States under the
Chemical Weapons Convention, provided such executive orders,
directives or regulations do not exceed the requirements
specified in the Chemical Weapons Convention.
____
U.S. Arms Control and
Disarmament Agency,
Washington, DC, March 27, 1997.
Hon. Richard G. Lugar,
Committee on Foreign Relations,
U.S. Senate.
Dear Senator Lugar: On behalf of the Administration, I
hereby submit for consideration the ``Chemical Weapons
Convention Implementation Act of 1997.'' This proposed
legislation is identical to the legislation submitted by the
Administration in 1995. The Chemical Weapons Convention (CWC)
was signed by the United States in Paris on January 13, 1993,
and was submitted by President Clinton to the United States
Senate on November 23, 1993, for its advice and consent to
ratification. The CWC prohibits, inter alia, the use,
development, production, acquisition, stockpiling, retention,
and direct or indirect transfer of chemical weapons.
The President has urged the Senate to provide its advice
and consent to ratification as early as possible this year so
that the United States will be an original State Party and
can continue to lead the fight against these terrible
weapons. The CWC will enter into force, with or without the
United States, on April 29, 1997. if the United States has
not ratified by that time, we will not have a seat on the
governing council which will oversee implementation of the
Convention and U.S. nationals will not be able to serve as
inspectors and in other key positions. Here at home, the U.S.
chemical industry could lose hundreds of millions of dollars
and many well-paying jobs because of CWC-mandated trade
restrictions against non-Parties. As Secretaries Albright and
Cohen have recently underscored, ratifying the CWC before it
enters into force is in the best interests of the United
States.
The CWC contains a number of provisions that require
implementing legislation to give them effect within the
United States. These include: carrying out verification
activities, including inspections of U.S. facilities;
collecting and protecting the confidentiality of data
declarations by U.S. chemical and related companies; and
establishing a ``National Authority'' to serve as the liaison
between the United States and the international organization
established by the CWC.
In addition, the CWC requires the United States to prohibit
all individuals and legal entities, such as corporations,
within the United States, as well as all individuals outside
the United States, possessing U.S. citizenship, from engaging
in activities that are prohibited under the Convention. As
part of this obligation, the CWC requires the United States
to enact ``penal'' legislation implementing this prohibition
(i.e., legislation that penalizes conduct, either by
criminal, administrative, military or other sanctions).
Expeditious enactment of implementing legislation is very
important to the ability of the United States to fulfill its
obligations under the Convention. Enactment will enable the
United States to collect the required information from
industry, to provide maximum protection for confidential
information, and to allow the inspections called for in the
Convention. It will also enable the United States to outlaw
all activities related to chemical weapons, except CWC
permitted activities such as chemical defense programs. This
will help fight chemical terrorism by penalizing not just the
use, but also the development, production and transfer of
chemical weapons. Thus, the enactment of legislation by the
United States and other CWC States Parties will make it much
easier for law enforcement officials to investigate and
punish chemical terrorists early, before chemical weapons are
used.
As the President indicated in his transmittal letter of the
Convention: ``The CWC is in the best interests of the United
States. Its provisions will significantly strengthen United
States, allied and international security, and enhance global
and regional stability.'' Therefore, I urge the Congress to
enact the necessary implementing legislation as soon as
possible.
The Office of Management and Budget advises that there is
no objection to the submission of this proposal and its
enactment is in accord with the President's program.
Sincerely,
John D. Holum,
Director.
______