[Congressional Record Volume 143, Number 70 (Friday, May 23, 1997)]
[Senate]
[Pages S5070-S5080]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT OF 1997
Mr. LOTT. Mr. President, I ask unanimous consent that the Senate
proceed to Calendar No. 60, S. 610.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
A bill (S. 610) 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 which had been reported
from the Committee on the Judiciary, with an amendment to
strike all after the enacting clause and inserting in lieu
thereof the following:
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. Definitions.
TITLE I--GENERAL PROVISIONS
Sec. 101. Designation of United States National Authority.
Sec. 102. No abridgement of constitutional rights.
Sec. 103. Civil liability of the United States.
TITLE II--PENALTIES FOR UNLAWFUL ACTIVITIES SUBJECT TO THE JURISDICTION
OF THE UNITED STATES
Subtitle A--Criminal and Civil Penalties
Sec. 201. Criminal and civil provisions.
Subtitle B--Revocations of Export Privileges
Sec. 211. Revocations of export privileges.
TITLE III--INSPECTIONS
Sec. 301. Definitions in the title.
Sec. 302. Facility agreements.
Sec. 303. Authority to conduct inspections.
Sec. 304. Procedures for inspections.
Sec. 305. Warrants.
Sec. 306. Prohibited acts relating to inspections.
Sec. 307. National security exception.
Sec. 308. Protection of constitutional rights of contractors.
Sec. 309. Annual report on inspections.
Sec. 310. United States assistance in inspections at private
facilities.
TITLE IV--REPORTS
Sec. 401. Reports required by the United States National Authority.
Sec. 402. Prohibition relating to low concentrations of schedule 2 and
3 chemicals.
Sec. 403. Prohibition relating to unscheduled discrete organic
chemicals and coincidental byproducts in waste streams.
Sec. 404. Confidentiality of information.
Sec. 405. Recordkeeping violations.
TITLE V--ENFORCEMENT
Sec. 501. Penalties.
Sec. 502. Specific enforcement.
Sec. 503. Expedited judicial review.
TITLE VI--MISCELLANEOUS PROVISIONS
Sec. 601. Repeal.
Sec. 602. Prohibition.
Sec. 603. Bankruptcy actions.
SEC. 3. DEFINITIONS.
In this Act:
(1) Chemical weapon.--The term ``chemical weapon'' means
the following, together or separately:
(A) A toxic chemical and its precursors, except where
intended for a purpose not prohibited under this Act as long
as the type and quantity is consistent with such a purpose.
(B) A munition or device, specifically designed to cause
death or other harm through toxic properties of those toxic
chemicals specified in subparagraph (A) which would be
released as a result of the employment of such munition or
device.
(C) Any equipment specifically designed for use directly in
connection with the employment of munitions or devices
specified in subparagraph (B).
(2) Chemical weapons convention; convention.--The terms
``Chemical Weapons Convention'' and ``Convention'' mean the
Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their
Destruction, opened for signature on January 13, 1993.
(3) Key component of a binary or multicomponent chemical
system.--The term ``key component of a binary or
multicomponent chemical system'' means the precursor which
plays the most important role in determining the toxic
properties of the final product and reacts rapidly with other
chemicals in the binary or multicomponent system.
(4) National of the united states.--The term ``national of
the United States'' has the same meaning given such term in
section 101(a)(22) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(22)).
(5) Organization.--The term ``Organization'' means the
Organization for the Prohibition of Chemical Weapons.
(6) Person.--The term ``person'', except as otherwise
provided, means any individual, corporation, partnership,
firm, association, trust, estate, public or private
institution, any State or any political subdivision thereof,
or any political entity within a State, any foreign
government or nation or any agency, instrumentality or
political subdivision of any such government or nation, or
other entity located in the United States.
(7) Precursor.--
(A) In general.--The term ``precursor'' means any chemical
reactant which takes part at any stage in the production by
whatever method of a toxic chemical. The term includes any
key component of a binary or multicomponent chemical system.
(B) List of precursors.--Precursors which have been
identified for the application of verification measures under
Article VI of the Convention are listed in schedules
contained in the Annex on Chemicals of the Chemical Weapons
Convention.
(8) Purposes not prohibited by this act.--The term
``purposes not prohibited by this Act'' means the following:
(A) Peaceful purposes.--Any peaceful purpose related to an
industrial, agricultural, research, medical, or
pharmaceutical activity or other activity.
(B) Protective purposes.--Any purpose directly related to
protection against toxic chemicals and to protection against
chemical weapons.
(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).
(C) O-Alkyl (H or C10, incl. cycloalkyl) S-2-
dialkyl
(Me, Et, n-Pr or i-Pr)-aminoethyl alkyl
(Me, Et, n-Pr or i-Pr) phosphonothiolates and corresponding
alkylated or protonated salts
(e.g. VX: O-Ethyl S-2-diisopropylaminoethyl methyl
phosphono- thiolate).
(D) Sulfur mustards:
2-Chloroethylchloromethylsulfide
Mustard gas: Bis(2-chloroethyl)sulfide
Bis(2-chloroethylthio)methane
Sesquimustard: 1,2-Bis(2-chloroethylthio)ethane
1,3-Bis(2-chloroethylthio)-n-propane
1,4-Bis(2-chloroethylthio)-n-butane
1,5-Bis(2-chloroethylthio)-n-pentane
Bis(2-chloroethylthiomethyl)ether
O-Mustard: Bis(2-chloroethylthioethyl)ether.
(E) Lewisites:
Lewisite 1: 2-Chlorovinyldichloroarsine
Lewisite 2: Bis(2-chlorovinyl)chloroarsine
Lewisite 3: Tris (2-clorovinyl)arsine.
(F) Nitrogen mustards:
HN1: Bis(2-chloroethyl)ethylamine
HN2: Bis(2-chloroethyl)methylamine
HN3: Tris(2-chloroethyl)amine.
(G) Saxitoxin.
(H) Ricin.
(I) Alkyl (Me, Et, n-Pr or i-Pr) phosphonyldifluorides
e.g. DF: Methylphosphonyldifluoride.
(J) O-Alkyl (H or 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-diisopropyl- aminoethyl
methylphosphonite.
(K) Chlorosarin: O-Isopropyl methyl- phosphonochloridate.
(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]
[[Page S5071]]
phosphorothiolate and corresponding alkylated or protonated
salts.
(B) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-
propene.
(C) BZ: 3-Quinuclidinyl benzilate
(D) Chemicals, except for those listed in Schedule 1,
containing a phosphorus atom to which is bonded one methyl,
ethyl or propyl (normal or iso) group but not further carbon
atoms,
e.g. Methylphosphonyl dichloride Dimethyl methylphosphonate
Exemption: Fonofos: O-Ethyl S-phenyl
ethylphosphonothiolothionate.
(E) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic
dihalides.
(F) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-
Pr or i-Pr)-phosphoramidates.
(G) arsenic trichloride.
(H) 2,2-Diphenyl-2-hydroxyacetic acid.
(I) Quinuclidine-3-ol.
(J) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-
chlorides and corresponding protonated salts.
(K) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols
and corresponding protonated salts
Exemptions: N,N-Dimethylaminoeth- anol 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)sul- fide.
(N) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol.
(12) Schedule 3 chemical agent.--The term ``Schedule 3
chemical agent'' means any the following, together or
separately:
(A) Phosgene: carbonyl dichloride.
(B) Cyanogen chloride.
(C) Hydrogen cyanide.
(D) Chloropicrin: trichloronitromethane.
(E) Phosphorous oxychloride.
(F) Phosphorous trichloride.
(G) Phosphorous pentachloride.
(H) Trimethyl phosphite.
(I) Triethyl phosphite.
(J) Dimethyl phosphite.
(K) Diethyl phosphite.
(L) Sulfur monochloride.
(M) Sulfur dichloride.
(N) Thionyl chloride.
(O) Ethyldiethanolamine.
(P) Methyldiethanolamine.
(O) 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) of section 40102 of title 49, United States Code;
(B) any civil aircraft of the United States or public
aircraft, as such terms are defined in paragraphs (17) and
(37), respectively, of section 40102 of title 49, United
States Code; and
(C) any vessel of the United States, as such term is
defined in section 3(b) of the Maritime Drug Enforcement Act,
as amended (46 U.S.C., App. sec. 1903(b)).
(15) Unscheduled discrete organic chemical.--The term
``unscheduled discrete organic chemical'' means any chemical
not listed on any schedule contained in the Annex on
Chemicals of the Convention that belongs to the class of
chemical compounds consisting of all compounds of carbon,
except for its oxides, sulfides, and metal carbonates.
TITLE I--GENERAL PROVISIONS
SEC. 101. DESIGNATION OF UNITED STATES NATIONAL AUTHORITY.
(a) Designation.--Pursuant to paragraph 4 of Article VII of
the Chemical Weapons Convention, the President shall
designate the Department of State to be the United States
National Authority.
(b) Purposes.--The United States National Authority shall--
(1) serve as the national focal point for effective liaison
with the Organization for the Prohibition of Chemical Weapons
and other States Parties to the Convention; and
(2) implement the provisions of this Act in coordination
with an interagency group designated by the President
consisting of the Secretary of Commerce, Secretary of
Defense, Secretary of Energy, the Attorney General, and the
heads of agencies considered necessary or advisable by the
President.
(c) Director.--The Secretary of State shall serve as the
Director of the United States National Authority.
(d) Powers.--The Director may utilize the administrative
authorities otherwise available to the Secretary of State in
carrying out the responsibilities of the Director set forth
in this Act.
(e) Implementation.--The President is authorized to
implement and carry out the provisions of this Act and the
Convention and shall designate through Executive order which
agencies of the United States shall issue, amend, or revise
the regulations in order to implement this Act and the
provisions of the Convention. The Director of the United
States National Authority shall report to the Congress on the
regulations that have been issued, implemented, or revised
pursuant to this section.
SEC. 102. 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
Act or the Convention.
SEC. 103. CIVIL LIABILITY OF THE UNITED STATES.
(a) Claims for Taking of Property.--
(1) Jurisdiction of courts of the united states.--
(A) United states court of federal claims.--The United
States Court of Federal Claims shall, subject to subparagraph
(B), have jurisdiction of any civil action or claim against
the United States for any taking of property without just
compensation that occurs by reason of the action of any
officer or employee of the Organization for the Prohibition
of Chemical Weapons, including any member of an inspection
team of the Technical Secretariat, or by reason of the action
of any officer or employee of the United States pursuant to
this Act or the Convention. For purposes of this subsection,
action taken pursuant to or under the color of this Act or
the Convention shall be deemed to be action taken by the
United States for a public purpose.
(B) District courts.--The district courts of the United
States shall have original jurisdiction, concurrent with the
United States Court of Federal Claims, of any civil action or
claim described in subparagraph (A) that does not exceed
$10,000.
(2) Notification.--Any person intending to bring a civil
action pursuant to paragraph (1) shall notify the United
States National Authority of that intent at least one year
before filing the claim in the United States Court of Federal
Claims. Action on any claim filed during that one-year period
shall be stayed. The one-year period following the
notification shall not be counted for purposes of any law
limiting the period within which the civil action may be
commenced.
(3) Initial steps by united states government to seek
remedies.--During the period between a notification pursuant
to paragraph (2) and the filing of a claim covered by the
notification in the United States Court of Federal Claims,
the United States National Authority shall pursue all
diplomatic and other remedies that the United States National
Authority considers necessary and appropriate to seek redress
for the claim including, but not limited to, the remedies
provided for in the Convention and under this Act.
(4) Burden of proof.--In any civil action under paragraph
(1), the plaintiff shall have the burden to establish a prima
facie case that, due to acts or omissions of any official of
the Organization or any member of an inspection team of the
Technical Secretariat taken under the color of the
Convention, proprietary information of the plaintiff has been
divulged or taken without authorization. If the United States
Court of Federal Claims finds that the plaintiff has
demonstrated such a prima facie case, the burden shall shift
to the United States to disprove the plaintiff's claim. In
deciding whether the plaintiff has carried its burden, the
United States Court of Federal Claims shall consider, among
other things--
(A) the value of proprietary information;
(B) the availability of the proprietary information;
(C) the extent to which the proprietary information is
based on patents, trade secrets, or other protected
intellectual property;
(D) the significance of proprietary information; and
(E) the emergence of technology elsewhere a reasonable time
after the inspection.
(b) Tort Liability.--The district courts of the United
States shall have exclusive jurisdiction of civil actions for
money damages for any tort under the Constitution or any
Federal or State law arising from the acts or omissions of
any officer or employee of the United States or the
Organization, including any member of an inspection team of
the Technical Secretariat, taken pursuant to or under color
of the Convention or this Act.
(c) Waiver of Sovereign Immunity of the United States.--In
any action under subsection (a) or (b), the United States may
not raise sovereign immunity as a defense.
(d) Authority for Cause of Action.--
(1) United states actions in united states district
court.--Notwithstanding any other law, the Attorney General
of the United States is authorized to bring an action in the
United States District Court for the District of Columbia
against any foreign nation for money damages resulting from
that nation's refusal to provide indemnification to the
United States for any liability imposed on the United States
by virtue of the actions of an inspector of the Technical
Secretariat who is a national of that foreign nation acting
at the direction or the behest of that foreign nation.
(2) United states actions in courts outside the united
states.--The Attorney General is authorized to seek any and
all available redress in any international tribunal for
indemnification to the United States for any liability
imposed on the United States by virtue of the actions of an
inspector of the Technical Secretariat, and to seek such
redress in the courts of the foreign nation from which the
inspector is a national.
(3) Actions brought by individuals and businesses.--
Notwithstanding any other law,
[[Page S5072]]
any national of the United States, or any business entity
organized and operating under the laws of the United States,
may bring a civil action in a United States District Court
for money damages against any foreign national or any
business entity organized and operating under the laws of a
foreign nation for an unauthorized or unlawful acquisition,
receipt, transmission, or use of property by or on behalf of
such foreign national or business entity as a result of any
tort under the Constitution or any Federal or State law
arising from acts or omissions by any officer or employee of
the United States or any member of an inspection team of the
Technical Secretariat taken pursuant to or under the color of
the Convention or this Act.
(e) Recoupment.--
(1) Policy.--It is the policy of the United States to
recoup all funds withdrawn from the Treasury of the United
States in payment for any tort under Federal or State law or
taking under the Constitution arising from the acts or
omissions of any foreign person, officer, or employee of the
Organization, including any member of an inspection team of
the Technical Secretariat, taken under color of the Chemical
Weapons Convention or this Act.
(2) Sanctions on foreign companies.--
(A) Imposition of sanctions.--The sanctions provided in
subparagraph (B) shall be imposed for a period of not less
than ten years upon--
(i) any foreign person, officer, or employee of the
Organization, including any member of an inspection team of
the Technical Secretariat, for whose actions or omissions the
United States has been held liable for a tort or taking
pursuant to this Act; and
(ii) any foreign person or business entity organized and
operating under the laws of a foreign nation which knowingly
assisted, encouraged or induced, in any way, a foreign person
described in clause (i) to publish, divulge, disclose, or
make known in any manner or to any extent not authorized by
the Convention any United States confidential business
information.
(B) Sanctions.--
(i) Arms export transactions.--The United States Government
shall not sell to a person described in subparagraph (A) any
item on the United States Munitions List and shall terminate
sales of any defense articles, defense services, or design
and construction services to a person described in
paragraph (2) under the Arms Export Control Act.
(ii) Sanctions under export administration act of 1979.--
The authorities under section 6 of the Export Administration
Act of 1979 shall be used to prohibit the export of any goods
or technology on the control list established pursuant to
section 5(c)(1) of that Act to a person described in
subparagraph (A).
(iii) International financial assistance.--The United
States shall oppose any loan or financial or technical
assistance by international financial institutions in
accordance with section 701 of the International Financial
Institutions Act to a person described in subparagraph (A).
(iv) Export-import bank transactions.--The United States
shall not give approval to guarantee, insure, or extend
credit, or to participate in the extension of credit to a
person described in subparagraph (A) through the Export-
Import Bank of the United States.
(v) Private bank transactions.--Regulations shall be issued
to prohibit any United States bank from making any loan or
providing any credit to a person described in subparagraph
(A).
(vi) Blocking of assets.--The President shall take all
steps necessary to block any transactions in any property
subject to the jurisdiction of the United States in which a
person described in subparagraph (A) has any interest
whatsoever, for the purpose of recouping funds in accordance
with the policy in paragraph (1).
(vii) Denial of landing rights.--Landing rights in the
United States shall be denied to any private aircraft or air
carrier owned by a person described in subparagraph (A)
except as necessary to provide for emergencies in which the
safety of the aircraft or its crew or passengers is
threatened.
(3) Sanctions on foreign governments.--
(A) Imposition of sanctions.--Whenever the President
determines that persuasive information is available
indicating that a foreign country has knowingly assisted,
encouraged or induced, in any way, a person described in
paragraph (2)(A) to publish, divulge, disclose, or make known
in any manner or to any extent not authorized by the
Convention any United States confidential business
information, the President shall, within 30 days after the
receipt of such information by the executive branch of
Government, notify the Congress in writing of such
determination and, subject to the requirements of paragraphs
(4) and (5), impose the sanctions provided under subparagraph
(B) for a period of not less than five years.
(B) Sanctions.--
(i) Arms export transactions.--The United States Government
shall not sell a country described in subparagraph (A) any
item on the United States Munitions List, shall terminate
sales of any defense articles, defense services, or design
and construction services to that country under the Arms
Export Control Act, and shall terminate all foreign military
financing for that country under the Arms Export Control Act.
(ii) Denial of certain licenses.--Licenses shall not be
issued for the export to the sanctioned country of any item
on the United States Munitions List or commercial satellites.
(iii) Denial of assistance.--No appropriated funds may be
used for the purpose of providing economic assistance,
providing military assistance or grant military education and
training, or extending military credits or making guarantees
to a country described in subparagraph (A).
(iv) Sanctions under export administration act of 1979.--
The authorities of section 6 of the Export Administration Act
of 1979 shall be used to prohibit the export of any goods or
technology on the control list established pursuant to
section 5(c)(1) of that Act to a country described in
subparagraph (A).
(v) International financial assistance.--The United States
shall oppose any loan or financial or technical assistance
by international financial institutions in accordance with
section 701 of the International Financial Institutions
Act to a country described in subparagraph (A).
(vi) Termination of assistance under foreign assistance act
of 1961.--The United States shall terminate all assistance to
a country described in subparagraph (A) under the Foreign
Assistance Act of 1961, except for urgent humanitarian
assistance.
(vii) Private bank transactions.--The United States shall
not give approval to guarantee, insure, or extend credit, or
participate in the extension of credit through the Export-
Import Bank of the United States to a country described in
subparagraph (A).
(viii) Private bank transactions.--Regulations shall be
issued to prohibit any United States bank from making any
loan or providing any credit to a country described in
subparagraph (A).
(ix) Denial of landing rights.--Landing rights in the
United States shall be denied to any air carrier owned by a
country described in subparagraph (A), except as necessary to
provide for emergencies in which the safety of the aircraft
or its crew or passengers is threatened.
(4) Suspension of sanctions upon recoupment by payment.--
Sanctions imposed under paragraph (2) or (3) may be suspended
if the sanctioned person, business entity, or country, within
the period specified in that paragraph, provides full and
complete compensation to the United States Government, in
convertible foreign exchange or other mutually acceptable
compensation equivalent to the full value thereof, in
satisfaction of a tort or taking for which the United States
has been held liable pursuant to this Act.
(5) Waiver of sanctions on foreign countries.--The
President may waive some or all of the sanctions provided
under paragraph (3) in a particular case if he determines and
certifies in writing to the Speaker of the House of
Representatives and the Committee on Foreign Relations of the
Senate that such waiver is necessary to protect the national
security interests of the United States. The certification
shall set forth the reasons supporting the determination and
shall take effect on the date on which the certification is
received by the Congress.
(6) Notification to congress.--Not later than five days
after sanctions become effective against a foreign person
pursuant to this Act, the President shall transmit written
notification of the imposition of sanctions against that
foreign person to the chairmen and ranking members of the
Committee on International Relations of the House of
Representatives and the Committee on Foreign Relations of the
Senate.
(f) Sanctions for Unauthorized Disclosure of United States
Confidential Business Information.--The Secretary of State
shall deny a visa to, and the Attorney General shall exclude
from the United States any alien who, after the date of
enactment of this Act--
(1) is, or previously served as, an officer or employee of
the Organization and who has willfully published, divulged,
disclosed, or made known in any manner or to any extent not
authorized by the Convention any United States confidential
business information coming to him in the course of his
employment or official duties, or by reason of any
examination or investigation of any return, report, or record
made to or filed with the Organization, or any officer or
employee thereof, such practice or disclosure having resulted
in financial loses or damages to a United States person and
for which actions or omissions the United States has been
found liable of a tort or taking pursuant to this Act;
(2) traffics in United States confidential business
information, a proven claim to which is owned by a United
States national;
(3) is a corporate officer, principal, shareholder with a
controlling interest of an entity which has been involved in
the unauthorized disclosure of United States confidential
business information, a proven claim to which is owned by a
United States national; or
(4) is a spouse, minor child, or agent of a person
excludable under paragraph (1), (2), or (3).
(g) United States Confidential Business Information
Defined.--In this section, the term ``United States
confidential business information'' means any trade secrets
or commercial or financial information that is privileged and
confidential--
(1) including--
(A) data described in section 304(e)(2) of this Act,
(B) any chemical structure,
(C) any plant design process, technology, or operating
method,
(D) any operating requirement, input, or result that
identifies any type or quantity of chemicals used, processed,
or produced, or
(E) any commercial sale, shipment, or use of a chemical, or
(2) as described in section 552(b)(4) of title 5, United
States Code,
and that is obtained--
(i) from a United States person; or
(ii) through the United States Government or the conduct of
an inspection on United States territory under the
Convention.
TITLE II--PENALTIES FOR UNLAWFUL ACTIVITIES SUBJECT TO THE JURISDICTION
OF THE UNITED STATES
Subtitle A--Criminal and Civil Penalties
SEC. 201. CRIMINAL AND CIVIL PROVISIONS.
(a) In General.--Part I of title 18, United States Code, is
amended by inserting after chapter 11A the following new
chapter:
``CHAPTER 11B--CHEMICAL WEAPONS
``Sec.
``229. Prohibited activities.
[[Page S5073]]
``229A. Penalties.
``229B. Criminal forfeitures; destruction of weapons.
``229C. Individual self-defense devices.
``229D. Injunctions.
``229E. Requests for military assistance to enforce prohibition in
certain emergencies.
``229F. Definitions.
``Sec. 229. Prohibited activities
``(a) Unlawful Conduct.--Except as provided in subsection
(b), it shall be unlawful for any person knowingly--
``(1) to develop, produce, otherwise acquire, transfer
directly or indirectly, receive, stockpile, retain, own,
possess, or use, or threaten to use, any chemical weapon; or
``(2) to assist or induce, in any way, any person to
violate paragraph (1), or to attempt or conspire to violate
paragraph (1).
``(b) Exempted Agencies and Persons.--
``(1) In general.--Subsection (a) does not apply to the
retention, ownership, possession, transfer, or receipt of a
chemical weapon by a department, agency, or other entity of
the United States, or by a person described in paragraph (2),
pending destruction of the weapon.
``(2) Exempted persons.--A person referred to in paragraph
(1) is--
``(A) any person, including a member of the Armed Forces of
the United States, who is authorized by law or by an
appropriate officer of the United States to retain, own,
possess, transfer, or receive the chemical weapon; or
``(B) in an emergency situation, any otherwise nonculpable
person if the person is attempting to destroy or seize the
weapon.
``(c) Jurisdiction.--Conduct prohibited by subsection (a)
is within the jurisdiction of the United States if the
prohibited conduct--
``(1) takes place in the United States;
``(2) takes place outside of the United States and is
committed by a national of the United States;
``(3) is committed against a national of the United States
while the national is outside the United States; or
``(4) is committed against any property that is owned,
leased, or used by the United States or by any department or
agency of the United States, whether the property is within
or outside the United States.
``Sec. 229A. Penalties
``(a) Criminal Penalties.--
``(1) In general.--Any person who violates section 229 of
this title shall be fined under this title, or imprisoned for
any term of years, or both.
``(2) Death penalty.--Any person who violates section 229
of this title and by whose action the death of another person
is the result shall be punished by death or imprisoned for
life.
``(b) Civil Penalties.--
``(1) In general.--The Attorney General may bring a civil
action in the appropriate United States district court
against any person who violates section 229 of this title
and, upon proof of such violation by a preponderance of the
evidence, such person shall be subject to pay a civil penalty
in an amount not to exceed $100,000 for each such violation.
``(2) Relation to other proceedings.--The imposition of a
civil penalty under this subsection does not preclude any
other criminal or civil statutory, common law, or
administrative remedy, which is available by law to the
United States or any other person.
``(c) Reimbursement of Costs.--The court shall order any
person convicted of an offense under subsection (a) to
reimburse the United States for any expenses incurred by the
United States incident to the seizure, storage, handling,
transportation, and destruction or other disposition of any
property that was seized in connection with an investigation
of the commission of the offense by that person. A person
ordered to reimburse the United States for expenses under
this subsection shall be jointly and severally liable for
such expenses with each other person, if any, who is ordered
under this subsection to reimburse the United States for the
same expenses.
``Sec. 229B. Criminal forfeitures; destruction of weapons
``(a) Property Subject to Criminal Forfeiture.--Any person
convicted under section 229A(a) shall forfeit to the United
States irrespective of any provision of State law--
``(1) any property, real or personal, owned, possessed, or
used by a person involved in the offense;
``(2) any property constituting, or derived from, and
proceeds the person obtained, directly or indirectly, as the
result of such violation; and
``(3) any of the property used in any manner or part, to
commit, or to facilitate the commission of, such violation.
The court, in imposing sentence on such person, shall order,
in addition to any other sentence imposed pursuant to section
229A(a), that the person forfeit to the United States all
property described in this subsection. In lieu of a fine
otherwise authorized by section 229A(a), a defendant who
derived profits or other proceeds from an offense may be
fined not more than twice the gross profits or other
proceeds.
``(b) Procedures.--
``(1) General.--Property subject to forfeiture under this
section, any seizure and disposition thereof, and any
administrative or judicial proceeding in relation thereto,
shall be governed by subsections (b) through (p) of section
413 of the Comprehensive Drug Abuse Prevention and Control
Act of 1970 (21 U.S.C. 853), except that any reference under
those subsections to--
``(A) `this subchapter or subchapter II' shall be deemed to
be a reference to section 229A(a); and
``(B) `subsection (a)' shall be deemed to be a reference to
subsection (a) of this section.
``(2) Temporary restraining orders.--
``(A) In general.--For the purposes of forfeiture
proceedings under this section, a temporary restraining order
may be entered upon application of the United States without
notice or opportunity for a hearing when an information or
indictment has not yet been filed with respect to the
property, if, in addition to the circumstances described in
section 413(e)(2) of the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. 853(e)(2)), the United
States demonstrates that there is probable cause to believe
that the property with respect to which the order is sought
would, in the event of conviction, be subject to forfeiture
under this section and exigent circumstances exist that place
the life or health of any person in danger.
``(B) Warrant of seizure.--If the court enters a temporary
restraining order under this paragraph, it shall also issue a
warrant authorizing the seizure of such property.
``(C) Applicable procedures.--The procedures and time
limits applicable to temporary restraining orders under
section 413(e) (2) and (3) of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 853(e) (2) and
(3)) shall apply to temporary restraining orders under this
paragraph.
``(c) Affirmative Defense.--It is an affirmative defense
against a forfeiture under subsection (b) that the property--
``(1) is for a purpose not prohibited under the Chemical
Weapons Convention; and
``(2) is of a type and quantity that under the
circumstances is consistent with that purpose.
``(d) Destruction or Other Disposition.--The Attorney
General shall provide for the destruction or other
appropriate disposition of any chemical weapon seized and
forfeited pursuant to this section.
``(e) Assistance.--The Attorney General may request the
head of any agency of the United States to assist in the
handling, storage, transportation, or destruction of property
seized under this section.
``(f) Owner Liability.--The owner or possessor of any
property seized under this section shall be liable to the
United States for any expenses incurred incident to the
seizure, including any expenses relating to the handling,
storage, transportation, and destruction or other disposition
of the seized property.
``Sec. 229C. Individual self-defense devices
``Nothing in this chapter shall be construed to prohibit
any individual self-defense device, including those using a
pepper spray or chemical mace.
``Sec. 229D. Injunctions
``The United States may obtain in a civil action an
injunction against--
``(1) the conduct prohibited under section 229 or 229C of
this title; or
``(2) the preparation or solicitation to engage in conduct
prohibited under section 229 or 229D of this title.
``Sec. 229E. Requests for military assistance to enforce
prohibition in certain emergencies
``The Attorney General may request the Secretary of Defense
to provide assistance under section 382 of title 10 in
support of Department of Justice activities relating to the
enforcement of section 229 of this title in an emergency
situation involving a chemical weapon. The authority to make
such a request may be exercised by another official of the
Department of Justice in accordance with section 382(f)(2) of
title 10.
``Sec. 229F. Definitions
``In this chapter:
``(1) Chemical weapon.--The term `chemical weapon' means
the following, together or separately:
``(A) A toxic chemical and its precursors, except where
intended for a purpose not prohibited under this chapter as
long as the type and quantity is consistent with such a
purpose.
``(B) A munition or device, specifically designed to cause
death or other harm through toxic properties of those toxic
chemicals specified in subparagraph (A), which would be
released as a result of the employment of such munition or
device.
``(C) Any equipment specifically designed for use directly
in connection with the employment of munitions or devices
specified in subparagraph (B).
``(2) Chemical weapons convention; convention.--The terms
`Chemical Weapons Convention' and `Convention' mean the
Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their
Destruction, opened for signature on January 13, 1993.
``(3) Key component of a binary or multicomponent chemical
system.--The term `key component of a binary or
multicomponent chemical system' means the precursor which
plays the most important role in determining the toxic
properties of the final product and reacts rapidly with other
chemicals in the binary or multicomponent system.
``(4) National of the united states.--The term `national of
the United States' has the same meaning given such term in
section 101(a)(22) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(22)).
``(5) Person.--The term `person', except as otherwise
provided, means any individual, corporation, partnership,
firm, association, trust, estate, public or private
institution, any State or any political subdivision thereof,
or any political entity within a State, any foreign
government or nation or any agency, instrumentality or
political subdivision of any such government or nation, or
other entity located in the United States.
``(6) Precursor.--
``(A) In general.--The term `precursor' means any chemical
reactant which takes part at any stage in the production by
whatever method of a toxic chemical. The term includes any
key component of a binary or multicomponent chemical system.
[[Page S5074]]
``(B) List of precursors.--Precursors which have been
identified for the application of verification measures under
Article VI of the Convention are listed in schedules
contained in the Annex on Chemicals of the Chemical Weapons
Convention.
``(7) Purposes not prohibited by this chapter.--The term
`purposes not prohibited by this chapter' means the
following:
``(A) Peaceful purposes.--Any peaceful purpose related to
an industrial, agricultural, research, medical, or
pharmaceutical activity or other activity.
``(B) Protective purposes.--Any purpose directly related to
protection against toxic chemicals and to protection against
chemical weapons.
``(C) Unrelated military purposes.--Any military purpose of
the United States that is not connected with the use of a
chemical weapon or that is not dependent on the use of the
toxic or poisonous properties of the chemical weapon to cause
death or other harm.
``(D) Law enforcement purposes.--Any law enforcement
purpose, including any domestic riot control purpose and
including imposition of capital punishment.
``(8) Toxic chemical.--
``(A) In general.--The term `toxic chemical' means any
chemical which through its chemical action on life processes
can cause death, temporary incapacitation or permanent harm
to humans or animals. The term includes all such chemicals,
regardless of their origin or of their method of production,
and regardless of whether they are produced in facilities, in
munitions or elsewhere.
``(B) List of toxic chemicals.--Toxic chemicals which have
been identified for the application of verification measures
under Article VI of the Convention are listed in schedules
contained in the Annex on Chemicals of the Chemical Weapons
Convention.
``(9) United states.--The term `United States' means the
several States of the United States, the District of
Columbia, and the commonwealths, territories, and possessions
of the United States and includes all places under the
jurisdiction or control of the United States, including--
``(A) any of the places within the provisions of paragraph
(41) of section 40102 of title 49, United States Code;
``(B) any civil aircraft of the United States or public
aircraft, as such terms are defined in paragraphs (17) and
(37), respectively, of section 40102 of title 49, United
States Code; and
``(C) any vessel of the United States, as such term is
defined in section 3(b) of the Maritime Drug Enforcement Act,
as amended (46 U.S.C., App. sec. 1903(b)).''.
(b) Conforming Amendments.--
(1) Weapons of mass destruction.--Section 2332a of title
18, United States Code, is amended--
(A) by striking ``Sec. 2332a. Use of weapons of mass
destruction'' and inserting ``Sec. 2332a. Use of certain
weapons of mass destruction'';
(B) in subsection (a), by inserting ``(other than a
chemical weapon as that term is defined in section 229F)''
after ``weapon of mass destruction''; and
(C) in subsection (b), by inserting ``(other than a
chemical weapon (as that term is defined in section 229F))''
after ``weapon of mass destruction''.
(2) Table of chapters.--The table of chapters for part I of
title 18, United States Code, is amended by inserting after
the item for chapter 11A the following new item:
``11B. Chemical Weapons......................................229''.....
(c) Repeals.--The following provisions of law are repealed:
(1) Section 2332c of title 18, United States Code, relating
to chemical weapons.
(2) In the table of sections for chapter 113B of title 18,
United States Code, the item relating to section 2332c.
Subtitle B--Revocations of Export Privileges
SEC. 211. REVOCATIONS OF EXPORT PRIVILEGES.
If the President determines, after notice and an
opportunity for a hearing in accordance with section 554 of
title 5, United States Code, that any person within the
United States, or any national of the United States located
outside the United States, has committed any violation of
section 229 of title 18, United States Code, the President
may issue an order for the suspension or revocation of the
authority of the person to export from the United States any
goods or technology (as such terms are defined in section 16
of the Export Administration Act of 1979 (50 U.S.C. App.
2415)).
TITLE III--INSPECTIONS
SEC. 301. DEFINITIONS IN THE TITLE.
(a) In General.--In this title, the terms ``challenge
inspection'', ``plant site'', ``plant'', ``facility
agreement'', ``inspection team'', and ``requesting state
party'' have the meanings given those terms in Part I of the
Annex on Implementation and Verification of the Chemical
Weapons Convention. The term ``routine inspection'' means an
inspection, other than an ``initial inspection'', undertaken
pursuant to Article VI of the Convention.
(b) Definition of Judge of the United States.--In this
title, the term ``judge of the United States'' means a judge
or magistrate judge of a district court of the United States.
SEC. 302. FACILITY AGREEMENTS.
(a) Authorization of Inspections.--Inspections by the
Technical Secretariat of plants, plant sites, or other
facilities or locations for which the United States has a
facility agreement with the Organization shall be conducted
in accordance with the facility agreement. Any such facility
agreement may not in any way limit the right of the owner or
operator of the facility to withhold consent to an inspection
request.
(b) Types of Facility Agreements.--
(1) Schedule two facilities.--The United States National
Authority shall ensure that facility agreements for plants,
plant sites, or other facilities or locations that are
subject to inspection pursuant to paragraph 4 of Article VI
of the Convention are concluded unless the owner, operator,
occupant, or agent in charge of the facility and the
Technical Secretariat agree that such an agreement is not
necessary.
(2) Schedule three facilities.--The United States National
Authority shall ensure that facility agreements are concluded
for plants, plant sites, or other facilities or locations
that are subject to inspection pursuant to paragraph 5 or 6
of Article VI of the Convention if so requested by the owner,
operator, occupant, or agent in charge of the facility.
(c) Notification Requirements.--The United States National
Authority shall ensure that the owner, operator, occupant, or
agent in charge of a facility prior to the development of the
agreement relating to that facility is notified and, if the
person notified so requests, the person may participate in
the preparations for the negotiation of such an agreement. To
the maximum extent practicable consistent with the
Convention, the owner and the operator, occupant or agent in
charge of a facility may observe negotiations of the
agreement between the United States and the Organization
concerning that facility.
(d) Content of Facility Agreements.--Facility agreements
shall--
(1) identify the areas, equipment, computers, records,
data, and samples subject to inspection;
(2) describe the procedures for providing notice of an
inspection to the owner, occupant, operator, or agent in
charge of a facility;
(3) describe the timeframes for inspections; and
(4) detail the areas, equipment, computers, records, data,
and samples that are not subject to inspection.
SEC. 303. AUTHORITY TO CONDUCT INSPECTIONS.
(a) Prohibition.--No inspection of a plant, plant site, or
other facility or location in the United States shall take
place under the Convention without the authorization of the
United States National Authority in accordance with the
requirements of this title.
(b) Authority.--
(1) Technical secretariat inspection teams.--Any duly
designated member of an inspection team of the Technical
Secretariat may inspect any plant, plant site, or other
facility or location in the United States subject to
inspection pursuant to the Convention.
(2) United states government representatives.--The United
States National Authority shall coordinate the designation of
employees of the Federal Government to accompany members of
an inspection team of the Technical Secretariat and, in doing
so, shall ensure that--
(A) a special agent of the Federal Bureau of Investigation,
as designated by the Federal Bureau of Investigation,
accompanies each inspection team visit pursuant to paragraph
(1);
(B) no employee of the Environmental Protection Agency or
the Occupational Safety and Health Administration accompanies
any inspection team visit conducted pursuant to paragraph
(1); and
(C) the number of duly designated representatives shall be
kept to the minimum necessary.
(3) Objections to individuals serving as inspectors.--
(A) In general.--In deciding whether to exercise the right
of the United States under the Convention to object to an
individual serving as an inspector, the President shall give
great weight to his reasonable belief that--
(i) such individual is or has been a member of, or a
participant in, any group or organization that has engaged
in, or attempted or conspired to engage in, or aided or
abetted in the commission of, any terrorist act or activity;
(ii) such individual has committed any act or activity
which would be a felony under the laws of the United States;
or
(iii) the participation of such individual as a member of
an inspection team would pose a risk to the national security
or economic well-being of the United States.
(B) Not subject to judicial review.--Any objection by the
President to an individual serving as an inspector, whether
made pursuant to this section or otherwise, shall not be
reviewable in any court.
SEC. 304. PROCEDURES FOR INSPECTIONS.
(a) Types of Inspections.--Each inspection of a plant,
plant site, or other facility or location in the United
States under the Convention shall be conducted in accordance
with this section and section 305, except where other
procedures are provided in a facility agreement entered into
under section 302.
(b) Notice.--
(1) In general.--An inspection referred to in subsection
(a) may be made only upon issuance of an actual written
notice by the United States National Authority to the owner
and to the operator, occupant, or agent in charge of the
premises to be inspected.
(2) Time of Notification.--The notice for a routine
inspection shall be submitted to the owner and to the
operator, occupant, or agent in charge within six hours of
receiving the notification of the inspection from the
Technical Secretariat or as soon as possible thereafter.
Notice for a challenge inspection shall be provided at any
appropriate time determined by the United States National
Authority. Notices may be posted prominently at the plant,
plant site, or other facility or location if the United
States is unable to provide actual written notice to the
owner, operator, or agent in charge of the premises.
(3) Content of notice.--
(A) In general.--The notice under paragraph (1) shall
include all appropriate information supplied by the Technical
Secretariat to the United States National Authority
concerning--
(i) the type of inspection;
[[Page S5075]]
(ii) the basis for the selection of the plant, plant site,
or other facility or location for the type of inspection
sought;
(iii) the time and date that the inspection will begin and
the period covered by the inspection; and
(iv) the names and titles of the inspectors.
(B) Special rule for challenge inspections.--In the case of
a challenge inspection pursuant to Article IX of the
Convention, the notice shall also include all appropriate
evidence or reasons provided by the requesting state party to
the Convention for seeking the inspection.
(4) Separate notices required.--A separate notice shall be
provided for each inspection, except that a notice shall not
be required for each entry made during the period covered by
the inspection.
(c) Credentials.--The head of the inspection team of the
Technical Secretariat and the accompanying employees of the
Federal government shall display appropriate identifying
credentials to the owner, operator, occupant, or agent in
charge of the premises before the inspection is commenced.
(d) Timeframe for Inspections.--Consistent with the
provisions of the Convention, each inspection shall be
commenced and completed with reasonable promptness and shall
be conducted at reasonable times, within reasonable limits,
and in a reasonable manner.
(e) Scope.--
(1) In general.--Except as provided in a warrant issued
under section 305 or a facility agreement entered into under
section 302, an inspection conducted under this title may
extend to all things within the premises inspected (including
records, files, papers, processes, controls, structures and
vehicles) related to whether the requirements of the
Convention applicable to such premises have been complied
with.
(2) Exception.--Unless required by the Convention, no
inspection under this title shall extend to--
(A) financial data;
(B) sales and marketing data (other than shipment data);
(C) pricing data;
(D) personnel data;
(E) research data;
(F) patent data;
(G) data maintained for compliance with environmental or
occupational health and safety regulations; or
(H) personnel and vehicles entering and personnel and
personal passenger vehicles exiting the facility.
(f) Sampling and Safety.--
(1) In general.--The Director of the United States National
Authority is authorized to require the provision of samples
to a member of the inspection team of the Technical
Secretariat in accordance with the provisions of the
Convention. The owner or the operator, occupant or agent in
charge of the premises to be inspected shall determine
whether the sample shall be taken by representatives of the
premises or the inspection team or other individuals present.
No sample collected in the United States pursuant to an
inspection permitted by this Act may be transferred for
analysis to any laboratory outside the territory of the
United States.
(2) Compliance with regulations.--In carrying out their
activities, members of the inspection team of the Technical
Secretariat and representatives of agencies or departments
accompanying the inspection team shall observe safety
regulations established at the premises to be inspected,
including those for protection of controlled environments
within a facility and for personal safety.
(g) Coordination.--The appropriate representatives of the
United States, as designated, if present, shall assist the
owner and the operator, occupant or agent in charge of the
premises to be inspected in interacting with the members of
the inspection team of the Technical Secretariat.
SEC. 305. WARRANTS.
(a) In General.--The United States Government shall seek
the consent of the owner or the operator, occupant, or agent
in charge of the premises to be inspected prior to any
inspection referred to in section 304(a). If consent is
obtained, a warrant is not required for the inspection. The
owner or the operator, occupant, or agent in charge of the
premises to be inspected may withhold consent for any reason
or no reason. After providing notification pursuant to
subsection (b), the United States Government may seek a
search warrant from a United States magistrate judge.
Proceedings regarding the issuance of a search warrant shall
be conducted ex parte, unless otherwise requested by the
United States Government.
(b) Routine Inspections.--
(1) Obtaining administrative search warrants.--For any
routine inspection conducted on the territory of the United
States pursuant to Article VI of the Convention, where
consent has been withheld, the United States Government
shall first obtain an administrative search warrant from a
judge of the United States. The United States Government
shall provide to the judge of the United States all
appropriate information supplied by the Technical
Secretariat to the United States National Authority
regarding the basis for the selection of the plant site,
plant, or other facility or location for the type of
inspection sought. The United States Government shall also
provide any other appropriate information available to it
relating to the reasonableness of the selection of the
plant, plant site, or other facility or location for the
inspection.
(2) Content of affidavits for administrative search
warrants.--The judge of the United States shall promptly
issue a warrant authorizing the requested inspection upon an
affidavit submitted by the United States Government showing
that--
(A) the Chemical Weapons Convention is in force for the
United States;
(B) the plant site, plant, or other facility or location
sought to be inspected is required to report data under title
IV of this Act and is subject to routine inspection under the
Convention;
(C) the purpose of the inspection is--
(i) in the case of any facility owned or operated by a non-
Government entity related to Schedule 1 chemical agents, to
verify that the facility is not used to produce any Schedule
1 chemical agent except for declared chemicals; quantities of
Schedule 1 chemicals produced, processed, or consumed are
correctly declared and consistent with needs for the declared
purpose; and Schedule 1 chemicals are not diverted or used
for other purposes;
(ii) in the case of any facility related to Schedule 2
chemical agents, to verify that activities are in accordance
with obligations under the Convention and consistent with the
information provided in data declarations; and
(iii) in the case of any facility related to Schedule 3
chemical agents and any other chemical production facility,
to verify that the activities of the facility are consistent
with the information provided in data declarations;
(D) the items, documents, and areas to be searched and
seized;
(E) in the case of a facility related to Schedule 2 or
Schedule 3 chemical agents or unscheduled discrete organic
chemicals, the plant site has not been subject to more than 1
routine inspection in the current calendar 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 Act has occurred or is occurring;
and
(vi) the identities of the representatives of the Technical
Secretariat on the inspection team and the Federal Government
employees accompanying the inspection team.
[[Page S5076]]
(C) Content of warrant.--The warrant shall specify--
(i) the type of inspection authorized;
(ii) the purpose of the inspection;
(iii) the type of plant site, plant, or other facility or
location to be inspected;
(iv) the areas of the plant site, plant, or other facility
or location to be inspected;
(v) the items, documents, data, equipment, and computers
that may be inspected or seized;
(vi) samples that may be taken;
(vii) the earliest commencement and latest concluding dates
and times of the inspection; and
(viii) the identities of the representatives of the
Technical Secretariat on the inspection teams and the Federal
Government employees accompanying the inspection team.
SEC. 306. PROHIBITED ACTS RELATING TO INSPECTIONS.
It shall be unlawful for any person willfully to fail or
refuse to permit entry or inspection, or to disrupt, delay,
or otherwise impede an inspection, authorized by this Act.
SEC. 307. 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.
SEC. 308. PROTECTION OF CONSTITUTIONAL RIGHTS OF CONTRACTORS.
(a) The Office of Federal Procurement Policy Act (41 U.S.C.
403 et seq.) is amended by adding at the end the following:
``SEC. 39. PROTECTION OF CONSTITUTIONAL RIGHTS OF
CONTRACTORS.
``(a) Prohibition.--A contractor may not be required, as a
condition for entering into a contract with the Federal
Government, to waive any right under the Constitution for any
purpose related to Chemical Weapons Convention Implementation
Act of 1997 or the Chemical Weapons Convention (as defined in
section 3 of such Act.)
``(b) Construction.--Nothing in subsection (a) shall be
construed to prohibit an executive agency from including in a
contract a clause that requires the contractor to permit
inspections for the purpose of ensuring that the contractor
is performing the contract in accordance with the provisions
of the contract.''.
(b) The table of contents in section 1(b) of such Act is
amended by adding at the end the following:
``Sec. 39. Protection of constitutional rights of contractors.''.
SEC. 309. ANNUAL REPORT ON INSPECTIONS.
(a) In General.--Not later than one year after the date of
enactment of this Act, and annually thereafter, the President
shall submit a report in classified and unclassified form to
the appropriate congressional committees on inspections made
under the Convention during the preceding year.
(b) Content of Reports.--Each report shall contain the
following information for the reporting period:
(1) The name of each company or entity subject to the
jurisdiction of the United States reporting data pursuant to
title IV of this Act.
(2) The number of inspections under the Convention
conducted on the territory of the United States.
(3) The number and identity of inspectors conducting any
inspection described in paragraph (2) and the number of
inspectors barred from inspection by the United States.
(4) The cost to the United States for each inspection
described in paragraph (2).
(5) The total costs borne by United States business firms
in the course of inspections described in paragraph (2).
(6) A description of the circumstances surrounding
inspections described in paragraph (2), including instances
of possible industrial espionage and misconduct of
inspectors.
(7) The identity of parties claiming loss of trade secrets,
the circumstances surrounding those losses, and the efforts
taken by the United States Government to redress those
losses.
(8) A description of instances where inspections under the
Convention outside the United States have been disrupted or
delayed.
(c) Definition.--The term ``appropriate congressional
committees'' means the Committee on the Judiciary, the
Committee on Foreign Relations, and the Select Committee on
Intelligence of the Senate and the Committee on the
Judiciary, the Committee on International Relations, and the
Permanent Select Committee on Intelligence of the House of
Representatives.
SEC. 310. UNITED STATES ASSISTANCE IN INSPECTIONS AT PRIVATE
FACILITIES.
(a) Assistance in Preparation for Inspections.--At the
request of an owner of a facility not owned or operated by
the United States Government, or contracted for use by or for
the United States Government, the Secretary of Defense may
assist the facility to prepare the facility for possible
inspections pursuant to the Convention.
(b) Reimbursement Requirement.--
(1) In general.--Except as provided in paragraph (2), the
owner of a facility provided assistance under subsection (a)
shall reimburse the Secretary for the costs incurred by the
Secretary in providing the assistance.
(2) Exception.--In the case of assistance provided under
subsection (a) to a facility owned by a person described in
subsection (c), the United States National Authority shall
reimburse the Secretary for the costs incurred by the
Secretary in providing the assistance.
(c) Owners Covered by United States National Authority
Reimbursements.--Subsection (b)(2) applies in the case of
assistance provided to the following:
(1) Small business concerns.--A small business concern as
defined in section 3 of the Small Business Act.
(2) Domestic producers of schedule 3 or unscheduled
discrete organic chemicals.--Any person located in the United
States that--
(A) does not possess, produce, process, consume, import, or
export any Schedule 1 or Schedule 2 chemical; and
(B) in the calendar year preceding the year in which the
assistance is to be provided, produced--
(i) more than 30 metric tons of Schedule 3 or unscheduled
discrete organic chemicals that contain phosphorous, sulfur,
or fluorine; or
(ii) more than 200 metric tons of unscheduled discrete
organic chemicals.
TITLE IV--REPORTS
SEC. 401. REPORTS REQUIRED BY THE UNITED STATES NATIONAL
AUTHORITY.
(a) Regulations on Recordkeeping.--
(1) Requirements.--The United States National Authority
shall ensure that regulations are prescribed that require
each person located in the United States who produces,
processes, consumes, exports, or imports, or proposes to
produce, process, consume, export, or import, a chemical
substance that is subject to the Convention to--
(A) maintain and permit access to records related to that
production, processing, consumption, export, or import of
such substance; and
(B) submit to the Director of the United States National
Authority such reports as the United States National
Authority may reasonably require to provide to the
Organization, pursuant to subparagraph 1(a) of the Annex on
Confidentiality of the Convention, the minimum amount of
information and data necessary for the timely and efficient
conduct by the Organization of its responsibilities under the
Convention.
(2) Rulemaking.--The Director of the United States National
Authority shall ensure that regulations pursuant to this
section are prescribed expeditiously.
(b) Coordination.--
(1) Avoidance of duplication.--To the extent feasible, the
United States Government shall not require the submission of
any report that is unnecessary or duplicative of any report
required by or under any other law. The head of each Federal
agency shall coordinate the actions of that agency with the
heads of the other Federal agencies in order to avoid the
imposition of duplicative reporting requirements under this
Act or any other law.
(2) Definition.--As used in paragraph (1), the term
``Federal agency'' has the meaning given the term ``agency''
in section 551(1) of title 5, United States Code.
SEC. 402. PROHIBITION RELATING TO LOW CONCENTRATIONS OF
SCHEDULE 2 AND 3 CHEMICALS.
(a) Prohibition.--Notwithstanding any other provision of
this Act, no person located in the United States shall be
required to report on, or to submit to, any routine
inspection conducted for the purpose of verifying the
production, possession, consumption, exportation,
importation, or proposed production, possession, consumption,
exportation, or importation of any substance that contains
less than--
(1) 10 percent concentration of a Schedule 2 chemical; or
(2) 80 percent concentration of a Schedule 3 chemical.
(b) Standard for Measurement of Concentration.--The percent
concentration of a chemical in a substance shall be measured
on the basis of volume or total weight, which measurement
yields the lesser percent.
SEC. 403. PROHIBITION RELATING TO UNSCHEDULED DISCRETE
ORGANIC CHEMICALS AND COINCIDENTAL BYPRODUCTS
IN WASTE STREAMS.
(a) Prohibition.--Notwithstanding any other provision of
this Act, no person located in the United States shall be
required to report on, or to submit to, any routine
inspection conducted for the purpose of verifying the
production, possession, consumption, exportation,
importation, or proposed production, possession, consumption,
exportation, or importation of any substance that is--
(1) an unscheduled discrete organic chemical; and
(2) a coincidental byproduct of a manufacturing or
production process that is not isolated or captured for use
or sale during the process and is routed to, or escapes, from
the waste stream of a stack, incinerator, or wastewater
treatment system or any other waste stream.
SEC. 404. CONFIDENTIALITY OF INFORMATION.
(a) Freedom of Information Act Exemption for Certain
Convention Information.--Except as provided in subsection (b)
or (c), any confidential business information, as defined in
section 103(g), reported to, or otherwise acquired by, the
United States Government under this Act or under the
Convention shall not be disclosed under section 552(a) of
title 5, United States Code.
(b) Exceptions.--
(1) Information for the technical secretariat.--Information
shall be disclosed or otherwise provided to the Technical
Secretariat or other states parties to the Chemical Weapons
Convention in accordance with the Convention, in particular,
the provisions of the Annex on the Protection of Confidential
Information.
(2) Information for congress.--Information shall be made
available to any committee or subcommittee of Congress with
appropriate jurisdiction upon the written request of the
chairman or ranking minority member of such committee or
subcommittee, except that no such committee or subcommittee,
and no member and no staff member of such committee or
subcommittee, shall disclose such information or material
except as otherwise required or authorized by law.
(3) Information for enforcement actions.--Information shall
be disclosed to other Federal agencies for enforcement of
this Act or any other law, and shall be disclosed or
otherwise provided when relevant in any proceeding
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under this Act or any other law, except that disclosure or
provision in such a proceeding shall be made in such manner
as to preserve confidentiality to the extent practicable
without impairing the proceeding.
(c) Information Disclosed in the National Interest.--
(1) Authority.--The United States Government shall disclose
any information reported to, or otherwise required by the
United States Government under this Act or the Convention,
including categories of such information, that it determines
is in the national interest to disclose and may specify the
form in which such information is to be disclosed.
(2) Notice of disclosure.--
(A) Requirement.--If any Department or agency of the United
States Government proposes pursuant to paragraph (1) to
publish or disclose or otherwise provide information exempt
from disclosure under subsection (a), the United States
National Authority shall, unless contrary to national
security or law enforcement needs, provide notice of intent
to disclose the information--
(i) to the person that submitted such information; and
(ii) in the case of information about a person received
from another source, to the person to whom that information
pertains.
The information may not be disclosed until the expiration of
30 days after notice under this paragraph has been provided.
(B) Proceedings on objections.--In the event that the
person to which the information pertains objects to the
disclosure, the agency shall promptly review the grounds for
each objection of the person and shall afford the objecting
person a hearing for the purpose of presenting the objections
to the disclosure. Not later than 10 days before the
scheduled or rescheduled date for the disclosure, the United
States National Authority shall notify such person regarding
whether such disclosure will occur notwithstanding the
objections.
(d) Criminal Penalty for Wrongful Disclosure.--Any officer
or employee of the United States, and any former officer or
employee of the United States, who by reason of such
employment or official position has obtained possession of,
or has access to, information the disclosure or other
provision of which is prohibited by subsection (a), and who,
knowing that disclosure or provision of such information is
prohibited by such subsection, willfully discloses or
otherwise provides the information in any manner to any
person (including any person located outside the territory of
the United States) not authorized to receive it, shall be
fined under title 18, United States Code, or imprisoned for
not more than five years, or both.
(e) Criminal Forfeiture.--The property of any person who
violates subsection (d) shall be subject to forfeiture to the
United States in the same manner and to the same extent as is
provided in section 229C of title 18, United States Code, as
added by this Act.
(f) International Inspectors.--The provisions of this
section shall also apply to employees of the Technical
Secretariat.
SEC. 405. RECORDKEEPING VIOLATIONS.
It shall be unlawful for any person willfully to fail or
refuse--
(1) to establish or maintain any record required by this
Act or any regulation prescribed under this Act;
(2) to submit any report, notice, or other information to
the United States Government in accordance with this Act or
any regulation prescribed under this Act; or
(3) to permit access to or copying of any record that is
exempt from disclosure under this Act or any regulation
prescribed under this Act.
TITLE V--ENFORCEMENT
SEC. 501. PENALTIES.
(a) Civil.--
(1) Penalty amounts.--
(A) Prohibited acts relating to inspections.--Any person
that is determined, in accordance with paragraph (2), to have
violated section 306 of this Act shall be required by order
to pay a civil penalty in an amount not to exceed $25,000 for
each such violation. For purposes of this paragraph, each day
such a violation of section 306 continues shall constitute a
separate violation of that section.
(B) Recordkeeping violations.--Any person that is
determined, in accordance with paragraph (2), to have
violated section 405 of this Act shall be required by order
to pay a civil penalty in an amount not to exceed $5,000 for
each such violation.
(2) Hearing.--
(A) In general.--Before imposing an order described in
paragraph (1) against a person under this subsection for a
violation of section 306 or 405, the Secretary of State shall
provide the person or entity with notice and, upon request
made within 15 days of the date of the notice, a hearing
respecting the violation.
(B) Conduct of hearing.--Any hearing so requested shall be
conducted before an administrative law judge. The hearing
shall be conducted in accordance with the requirements of
section 554 of title 5, United States Code. If no hearing is
so requested, the Secretary of State's imposition of the
order shall constitute a final and unappealable order.
(C) Issuance of orders.--If the administrative law judge
determines, upon the preponderance of the evidence received,
that a person or entity named in the complaint has violated
section 306 or 405, the administrative law judge shall state
his findings of fact and issue and cause to be served on such
person or entity an order described in paragraph (1).
(D) Factors for determination of penalty amounts.--In
determining the amount of any civil penalty, the
administrative law judge shall take into account the nature,
circumstances, extent, and gravity of the violation or
violations and, with respect to the violator, the ability to
pay, effect on ability to continue to do business, any
history of prior such violations, the degree of culpability,
the existence of an internal compliance program, and such
other matters as justice may require.
(3) Administrative appellate review.--The decision and
order of an administrative law judge shall become the final
agency decision and order of the head of the United States
National Authority unless, within 30 days, the head of the
United States National Authority modifies or vacates the
decision and order, with or without conditions, in which case
the decision and order of the head of the United States
National Authority shall become a final order under this
subsection.
(4) Offsets.--The amount of the civil penalty under a final
order of the United States National Authority may be deducted
from any sums owed by the United States to the person.
(5) Judicial review.--A person adversely affected by a
final order respecting an assessment may, within 30 days
after the date the final order is issued, file a petition in
the Court of Appeals for the District of Columbia Circuit or
for any other circuit in which the person resides or
transacts business.
(6) Enforcement of orders.--If a person fails to comply
with a final order issued under this subsection against the
person or entity--
(A) after the order making the assessment has become a
final order and if such person does not file a petition for
judicial review of the order in accordance with paragraph
(5), or
(B) after a court in an action brought under paragraph (5)
has entered a final judgment in favor of the United States
National Authority,
the Secretary of State shall file a suit to seek compliance
with the order in any appropriate district court of the
United States, plus interest at currently prevailing rates
calculated from the date of expiration of the 30-day period
referred to in paragraph (5) or the date of such final
judgment, as the case may be. In any such suit, the validity
and appropriateness of the final order shall not be subject
to review.
(b) Criminal.--Any person who knowingly violates any
provision of section 306 or 405 of this Act, shall, in
addition to or in lieu of any civil penalty which may be
imposed under subsection (a) for such violation, be fined
under title 18, United States Code, imprisoned for not more
than one year, or both.
SEC. 502. SPECIFIC ENFORCEMENT.
(a) Jurisdiction.--The district courts of the United States
shall have jurisdiction over civil actions to--
(1) restrain any violation of section 306 or 405 of this
Act; and
(2) compel the taking of any action required by or under
this Act or the Convention.
(b) Civil Actions.--
(1) In general.--A civil action described in subsection (a)
may be brought--
(A) in the case of a civil action described in subsection
(a)(1), in the United States district court for the judicial
district in which any act, omission, or transaction
constituting a violation of section 306 or 405 occurred or in
which the defendant is found or transacts business; or
(B) in the case of a civil action described in subsection
(a)(2), in the United States district court for the judicial
district in which the defendant is found or transacts
business.
(2) Service of process.--In any such civil action process
may be served on a defendant wherever the defendant may
reside or may be found, whether the defendant resides or may
be found within the United States or elsewhere.
SEC. 503. EXPEDITED JUDICIAL REVIEW.
(a) Civil Action.--Any person or entity subject to a search
under this Act may file a civil action challenging the
constitutionality of any provision of this Act.
Notwithstanding any other provision of law, during the full
calendar year of, and the two full calendar years following,
the enactment of this Act, the district court shall accord
such a case a priority in its disposition ahead of all other
civil actions except for actions challenging the legality and
conditions of confinement.
(b) En Banc Review.--Notwithstanding any other provision of
law, during the full calendar year of, and the two full
calendar years following, the enactment of this Act, any
appeal from a final order entered by a district court in an
action brought under subsection (a) shall be heard promptly
by the full Court of Appeals sitting en banc.
TITLE VI--MISCELLANEOUS PROVISIONS
SEC. 601. REPEAL.
Section 808 of the Department of Defense Appropriation
Authorization Act, 1978 (50 U.S.C. 1520; relating to the use
of human subjects for the testing of chemical or biological
agents) is repealed.
SEC. 602. PROHIBITION.
(a) In General.--Neither the Secretary of Defense nor any
other officer or employee of the United States may, directly
or by contract--
(1) conduct any test or experiment involving the use of any
chemical or biological agent on a civilian population; or
(2) use human subjects for the testing of chemical or
biological agents.
(b) Construction.--Nothing in subsection (a) may be
construed to prohibit actions carried out for purposes not
prohibited by this Act (as defined in section 3(8)).
(c) Biological Agent Defined.--In this section, the term
``biological agent'' means any micro-organism (including
bacteria, viruses, fungi, rickettsiae or protozoa), pathogen,
or infectious substance, or any naturally occurring, bio-
engineered or synthesized component of any such micro-
organism, pathogen, or infectious substance, whatever its
origin or method of production, capable of causing--
[[Page S5078]]
(1) death, disease, or other biological malfunction in a
human, an animal, a plant, or another living organism;
(2) deterioration of food, water, equipment, supplies, or
materials of any kind; or
(3) deleterious alteration of the environment.
SEC. 603. BANKRUPTCY ACTIONS.
Section 362(b) of title 11, United States Code, is
amended--
(1) by striking paragraphs (4) and (5); and
(2) by inserting after paragraph (3) the following:
``(4) under paragraph (1), (2), (3), or (6) of subsection
(a) of this section, of the commencement or continuation of
an action or proceeding by a governmental unit or any
organization exercising authority under the Convention on the
Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on Their Destruction, opened for
signature on January 13, 1993, to enforce such governmental
unit's or organization's police and regulatory power,
including the enforcement of a judgment other than a money
judgment, obtained in an action or proceeding by the
governmental unit to enforce such governmental unit's or
organization's police or regulatory power;''.
The PRESIDING OFFICER. Is there objection to the immediate
consideration of the bill?
There being no objection, the Senate proceeded to consider the bill.
Mr. LOTT. For the information of all Senators, so they will
understand, this is the Chemical Weapons Convention implementing
legislation.
I ask unanimous consent that the previous order with respect to the
bill be vitiated and, further, the committee substitute amendment be
agreed to.
The committee substitute amendment was agreed to.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, during the debate on ratification of the
Chemical Weapons Convention, I said that I expected that both the
President and the Congress must be wholly dedicated to implement this
treaty in a way that advances U.S. national security interests and that
protects the constitutional rights of American citizens. Today, we will
consider a bill to implement the Chemical Weapons Convention. In my
view, this bill accomplishes both of those objectives.
The bill before us today is the product of negotiation with the
administration and with my colleagues on the other side of the aisle.
Although this bill differs, in several respects, from the version of S.
610 that was introduced in the Congress, I believe that we have
achieved a bill that comprehensively implements the treaty, while also
protecting the constitutional rights of Americans. Let me explain
briefly why that is true:
First, our bill provides for civil liability of the United States for
the loss of property resulting from inspection procedures under the
treaty.
Second, the Chemical Weapons Convention authorizes a team of
international officials to inspect the facilities of private American
businesses. Our bill protects the constitutional rights of American
citizens through the warrant requirement that must be satisfied for all
inspections.
Third, the bill protects confidential business information that,
according to the treaty, must be reported to the U.S. National
Authority. The bill also provides aggressive penalties for the person
disclosing the information, as well as for those benefiting from the
information.
In sum, the Chemical Weapons Convention Implementation Act of 1997 is
a reasonable effort to protect the constitutional rights of our
citizens against unlawful inspections under the treaty.
We have worked exceedingly hard with the Administration and with
Members on the other side of the aisle to craft this bill. In
particular, I want to thank Senators Lugar, Kyl, Leahy, and Biden, as
well as their staff, for their tremendous efforts in this regard, done
under serious time constraints. I want to thank, in particular, David
Stephens, Randy Schueneman, Marshall Billingslea, Ken Meyers, Beryl
Howell, Ed Levine, David Schanzer, Stephen Schlesinger, Jennifer
Carrico, and Paul Larkin.
Mr. BIDEN. Mr. President, I want to compliment my esteemed chairman,
Senator Hatch, for forging a consensus on this complex issue. As my
colleagues know, I was engaged in negotiations on the Chemical Weapons
convention resolution of ratification for months, and I know first hand
how many deeply held views this treaty implicates and how difficult it
is to bring the parties together.
But we succeeded on the treaty and now, with the help of many
Senators on both sides of the aisle, have succeeded on the implementing
legislation.
I supported this compromise measure in committee and will do so again
now because it takes the important steps necessary to implement the
Chemical Weapons Convention.
As required by the convention, this bill will enact tough criminal
sanctions for possessing, stockpiling, transferring, and using chemical
weapons. It will also require U.S. companies to report on their
production and use of potentially dangerous chemicals and submit to
inspections of their facilities.
Taking these steps will demonstrate to the rest of the world that the
United States is committed to continuing its leadership role in arms
control and other issues of global importance.
I want to make clear, however, that I do not support some of the
provisions in this bill and have very serious concerns about their
impact on the convention.
In particular, I do not believe we should be granting the President
discretionary authority to deny a CWC inspection based on national
security grounds, as would be done by section 401. By signing and
ratifying this treaty, the United States--with the advice and consent
of 74 Members of this body, given less than a month ago--agreed to
allow certain inspections, subject to our constitutional requirements.
With few exceptions, denial of a duly authorized inspection would
violate the convention.
Even if the President never exercises this authority, the mere
inclusion of this provision in the legislation will encourage other
countries to deny inspections on national security grounds. If we
should enact to so-called national security exception, we can be sure
that the Chinese will seize upon the precedent we set and use it to
undermine the effectiveness of the entire certification regime.
I have similar concerns regarding section 403, which would exempt
from reporting and routine inspection requirements unscheduled discrete
organic chemicals that are coincidental byproducts and are not isolated
or captured for use or sale. While waste streams are not, in
themselves, a threat to the object and purposes of the CWC regime,
monitoring of such streams does afford one of the most convenient and
nonintrusive means of determining whether a facility is worthy of
concern in the first place.
The drafters of this provision are concerned that CWC implementation
would otherwise require paper manufacturers to undertake costly
monitoring of their waste streams, and that is an understandable
concern. There is no need, however, to grant such a broad exemption as
is currently contained in this section.
I am also troubled by:
The broad compensation scheme in section 103 that does not even
require a plaintiff to prove its case by a preponderance of the
evidence to receive taxpayer funded compensation for the loss of trade
secrets; and
The limitation in sections 102 and 308 on the Government's power to
require contractors to submit to CWC inspections.
I hope to work with other Senators and the administration to
ameliorate these concerns prior to enactment of this measure. Treaties
are solemn obligations, and the Chemical Weapons Convention, with all
its faults, is our best hope for exposing violators and mobilizing the
world so as to put a stop to chemical weapons. We must resist the urge,
therefore, to enact provisions that could conflict with our treaty
obligations and do damage to the effectiveness of the treaty regime.
Mr. LEAHY. Mr. President, the Chemical Weapons Convention was
initiated by President Reagan, negotiated by President Bush and
ratified on behalf of the United States by President Clinton. The
ratification of this convention was a major achievement that consumed a
great deal of the time and attention of the Senate.
When the Senate gave its advise and consent to ratification of the
Chemical Weapons Convention, the administration told us it was
imperative that we act on implementing legislation as quickly as
possible. The Judiciary Committee had the task of reporting back to the
Senate with implementing
[[Page S5079]]
legislation in time for Senate consideration before our Memorial Day
recess.
The implementing legislation considered by the Senate today is where
the rubber meets the road. It will define precisely how the general
obligations of the international treaty will affect American citizens
and American chemical companies.
A significant principle of the convention is set forth in Article VII
regarding ``National Implementation Measures.'' This principle makes
clear that each state party shall, in accordance with its
constitutional processes, adopt the necessary measures to implement its
obligations under this convention. My objective when I began work on
this legislation was to make sure that it reflected our constitutional
principles and sound public policy, while fulfilling our obligations
under the convention.
Over the last few weeks, the Judiciary Committee held a hearing,
solicited the advice of experts from both the administration and in the
private sector, and worked to craft legislation we could report to the
Senate in a very short time frame. I commend my colleagues on the
Judiciary Committee, and especially Chairman Hatch, Senator Biden, and
Senator Kyl, for their diligence and efforts in fulfilling this
Committee's responsibilities. Senator Lugar deserves enormous credit
for his constructive and helpful work in reaching the compromises
necessary to get this legislation done.
I also thank Ivo Spalatin, Dave Barton, and Bernie Sewart, from the
Arms Control and Disarmament Agency; Bill Danvers and Gordy Bendick,
from the National Security Council; Steven Goldman and Ann Connaughton
from the Department of Commerce; Eileen Gillio from the Department of
Defense; and Craig Iscoe from the Department of Justice. These
dedicated employees from Federal agencies and the White House spent
hours, even late into the night, to share their expertise with the
committee. We appreciate their hard work.
The hearing we held on May 13, 1997, regarding the administration's
implementing legislation, S. 610, raised a number of issues that needed
to be addressed. For example, one aspect of S.610 that required our
attention was its blanket exception from the Freedom of Information Act
for all information reported to, or otherwise obtained by any of the
agencies involved in implementing the convention.
Even a witness from the Department of Justice admitted that this
provision was not intended, for example, to limit public access to
records concerning the number of inspections conducted under the
convention, even if that information was reported to, or otherwise
obtained by the U.S. National Authority from the Technical Secretariat.
He agreed that this provision could be clarified.
The committee amendment to S.610 substantially improves this aspect
of the legislation by removing the blanket exception under the Freedom
of Information Act contained in the original bill. The substitute
retains protection for trade secrets and other proprietary business
information provided under the act and the convention, but the
operations of the Federal agencies in implementing this act will not be
cloaked in secrecy. They will be fully subject to the FOIA--as they
should be.
Yet another provision in S.610, as introduced, could have been
construed to penalize a person for refusing to consent to an entry or
inspection required under the convention. A Justice Department witness
testified at the Judiciary Committee hearing that this section is
inelegant and fails to account for the process agreed to in the
conditions of ratification. The implementing legislation reported by
the committee clarifies this provision, and affirms the constitutional
right of every American to refuse to give their consent to a search and
the requirement that the Government obtain a warrant.
We also heard from several witnesses about including in the
implementing legislation a mechanism to compensate those companies that
suffer a loss of trade secrets or other confidential or proprietary
information due to their compliance with the convention. The
implementing legislation we reported out of the Judiciary Committee
provides a compensation scheme that I sincerely hope will not become a
surer bet than the lottery for a payout to companys subject to the
convention. This scheme will, after the plaintiff establishes a prima
facie case, shift the burden to the Government to prove that any loss
did not arise from the company's compliance with the convention.
Proving a negative will be no easy task for the Government, which may
legitimately decide simply to settle such claims, despite their lack of
merit. We may have to revisit this scheme if it proves to be
authorization for a legal holdup of the U.S. Treasury.
Other provisions in this implementing legislation also give me pause.
It does not reflect all the changes each of us would like in the exact
form we would like them. But it certainly reflects good faith
compromises on both sides.
Mrs. FEINSTEIN. Mr. President, I rise today to express my support for
the compromise reached on S. 610, the legislation to implement the
Chemical Weapons Convention. I believe it is very much in our national
interests to pass this implementation legislation just as we ratified
the CWC.
Let me first express my respect and appreciation for the
distinguished Ranking Member of the Foreign Relations Committee,
Senator Biden and the distinguished ranking member of the Judiciary
Committee, Senator Leahy. They and their staff have really done the
heavy lifting in getting this implementing language to the floor.
I also want to express my respect for the opponents of this treaty,
including the distinguished chairman of the Foreign Relations Committee
and the Senator from Arizona, Senator Kyl. I have worked well with
Senator Kyl on many issues, including, at the moment, our strong effort
to pass a Crime Victims' Rights Amendment to the Constitution.
I know that in this debate these Senators are motivated by their
genuine and deeply felt concern for America's national security.
However, I must disagree with the view that we would be better off
without this treaty, or by passing implementation language that renders
the treaty meaningless.
Mr. President, the threat of chemical weapons falling into the hands
of terrorists, or being used as a weapon of war by a rogue state, has
increased dramatically in recent years.
One need only reflect on the dangers faced by our military by Iraq's
incipient chemical weapons program during the gulf war, or the
tragedies our nation has suffered with the bombing of the World Trade
Center, the Federal building in Oklahoma City, and the Olympic Park in
Atlanta, to fully appreciate the dangers posed by the proliferation of
chemical weapons. In each of these cases, the tragedy and loss of life
could have been magnified significantly had chemical weapons been used.
Chemical weapons are among the most barbaric of mankind's inventions.
They are so awful, that the United States, by act of Congress, has
decided to eliminate our own stocks of these weapons by 2004. They are
designed to kill and incapacitate by causing such effects as skin
blistering, blindness, lung damage, choking, nervous system disruption,
paralysis, or oxygen starvation. Because of the ease of their dispersal
over a wide area, chemical weapons are especially useful for targeting
civilian populations.
The Chemical Weapons Convention is the most far-reaching attempt ever
by the international community to control the spread of chemical
weapons. It bans for the first time the development, production, and
possession of chemical weapons and reinforces the international norm
against their use. Since we are destroying our own chemical weapons, it
only makes sense that we should want other nations to do so as well.
The convention requires all signatory states to declare and destroy
any chemical weapons and the facilities used to produce them. It
requires member states to submit annual reports on the production and
use of certain sensitive chemicals. This information, combined with our
own intelligence resources, will significantly improve our ability to
monitor and prevent illegal transfers and uses of such chemicals.
Once the CWC takes effect, it will make it much harder and more
costly for proliferators and terrorists to acquire chemical weapons. An
intrusive verification system will be set up to detect violations.
Sanctions will be imposed against nations that refuse to
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participate, making it more difficult for them to acquire precursor
chemicals for poison gas and easier to monitor their efforts to do so.
The intelligence-sharing and global verification network that will
result from this treaty will increase the chances that terrorist
attacks involving chemical weapons can be prevented before they ever
occur--a net gain in the security of our troops and our citizens.
We must start with the proposition that no arms control agreement is
100 percent verifiable. But with the CWC, we will know far more about
who is trying to develop chemical weapons, where, and how than we would
without the treaty. That is why the intelligence community has
consistently testified that, while the treaty is not completely
verifiable, they regard it as a highly desirable tool that will enhance
our knowledge of chemical weapons programs and our ability to stop
them.
The CWC's verification regime requires routine inspections of all
declared facilities working with significant amounts of chemicals
listed by the treaty. In addition, any site, declared or not, may be
subject to short-notice challenge inspections if there are suspicions
that it is being used to produce or store banned chemicals.
The CWC also establishes significant trade restrictions on precursor
chemicals. These restrictions will make it more difficult for nations
who are not parties to the treaty to acquire these chemicals, and will
provide us with much more information than we currently have about who
is seeking to import such chemicals, and in what amounts.
So the concern about verification, while valid, I believe has been
more than adequately addressed. We must go into this treaty with our
eyes open, aware that it will not detect every violation. But why would
we deprive ourselves of the extremely useful tools and information this
treaty would provide on the grounds that they are not fool-proof? It
would be incredibly short-sighted to do so.
Another concern that has been raised involves the potential theft of
commercial or trade secrets. Nothing in the CWC or its implementation
language require the United States, or any U.S. company, to provide any
confidential business information to any foreign party.
I am concerned about how this issue has been addressed in this
implementation legislation. Under this bill, the American taxpayer must
pay for the theft of confidential business information by foreign
industrial spies.
I think the better course is for the injured business to first take
reasonable steps to seek compensation from the spy who stole the
information or from the foreign company which used the stolen
information to gain a competitive advantage, before going after the
U.S. Treasury. I am hopeful that this issue can be addressed in the
conference on this legislation, and I appreciate the commitment of the
Senator from Arizona to continue to work with me on this.
Mr. President, I think this debate really comes down to whether or
not one supports international arms control agreements. Many of the
criticisms of the CWC and implementation legislation were levied
against all previous successful arms control treaties, such as the
Nuclear Non-Proliferation Treaty, and the START Treaty.
Those who worry that the United States will weaken its vigilance in
our efforts to guard against the threat of chemical weapons have
actually done us a service. I believe the intensity of this debate has
helped to ensure that we will never allow ourselves to believe that the
treaty by itself is enough. We will follow the course that President
Reagan did--a strong national defense and arms control agreements with
verification.
The CWC is not a panacea, and none of its proponents believes it is.
It will not by itself banish chemical weapons from the earth, but it
would result in the destruction of much of the world's chemical weapons
stocks, and provide us with a valuable set of tools that would
significantly strengthen our ability to monitor and defend against the
threat of chemical weapons.
I am very pleased that both sides of this debate were able to work
together and come to what I feel is, overall, a good agreement. I urge
my colleagues to vote for the CWC Implementation Legislation.
Thank you, Mr. President. I yield the floor.
Mr. DOMENICI. Mr. President, the Chemical Weapons Convention
Implementation Act of 1997, S. 610, adequately serves to implement the
obligations of the Nation under the Chemical Weapons Convention that we
ratified a few weeks ago. S. 610 reinforces the concerns expressed in
the ratification conditions that constitutional protections for U.S.
citizens must be maintained during the intrusive inspection regime
required by the CWC. S. 610 protects both private companies and Federal
installations from frivolous challenge inspections by demanding that
probable cause be demonstrated in order to obtain a search warrant.
S. 610 implements procedures for taking samples and maintains the
requirement in the Senate's ratification conditions that these samples
will stay within the country. To the extent possible, I would encourage
the U.S. National Authority to work with the Organization for the
Prohibition of Chemical Weapons to move toward inspection techniques
that avoid all concerns with loss of proprietary chemical information
from the acquisition and analysis of samples. Measurement techniques,
using acoustic signatures for example, have been developed at Los
Alamos that can identify whether the contents of a container are a
known chemical weapon agent or precursor, without resorting to actual
chemical analysis.
During the ratification process for the CWC, I was concerned with
protection of business interests of U.S. companies, and was
particularly concerned that small businesses might be adversely
impacted by challenge inspections directed against their property. S.
610 now allows any company to request federal assistance in preparing
for an inspection and provides that a small business shall receive such
assistance without cost. That's a good step for further protecting the
interests of our small businesses.
With passage of S. 610, the United States will move ahead to
implement the Chemical Weapons Convention in concert with the
International Organization for the Prohibition of Chemical Weapons.
Unfortunately, the international community involved in the CWC now does
not include Russia since they failed to ratify the convention. To
realize the full global benefits of the CWC, more nations need to
accept the convention's conditions--and I hope that Russia will lead
the way among the nations that still have not ratified the convention.
Mr. LOTT. Mr. President, I ask unanimous consent the bill be
considered read a third time and passed, the title amendment be agreed
to, the motion to reconsider be laid upon the table, and that
statements relating to the bill appear at the appropriate place in the
Record.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The bill (S. 610), as amended, was deemed read the third time and
passed.
The title was amended so as to read:
A bill to implement the obligations of the United States
under the Chemical Weapons Convention.
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