LEGISLATION — Chemical Weapons Convention Implementation Act of 1998
 
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;
      • (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.
    • (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.