22 USC 6724 - Procedures for inspections

Collapse to view only § 6724. Procedures for inspections

§ 6721. Definitions
§ 6722. Facility agreements
§ 6723. Authority to conduct inspections
§ 6724. Procedures for inspections
§ 6725. Warrants
§ 6726. Prohibited acts relating to inspections
§ 6727. National security exception
§ 6728. Annual report on inspections
§ 6729. United States assistance in inspections at private facilities

§ 6721. Definitions

(a) In general

(b) “Judge of the United States” defined

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

§ 6722. Facility agreements

(a) Authorization of inspections

(b) Types of facility agreements

(1) Schedule 2 facilities

(2) Schedule 3 facilities

(d) Content of facility agreements

Facility agreements shall—

(1) identify the areas, equipment, computers, records, data, and samples subject to inspection;

(2) describe the procedures for providing notice of an inspection to the owner, occupant, operator, or agent in charge of a facility;

(3) describe the timeframes for inspections; and

(4) detail the areas, equipment, computers, records, data, and samples that are not subject to inspection.

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

§ 6723. Authority to conduct inspections

(a) Prohibition

(b) Authority

(1) Technical Secretariat inspection teams

(2) United States Government representatives

The United States National Authority shall coordinate the designation of employees of the Federal Government (and, in the case of an inspection of a United States Government facility, the designation of contractor personnel who shall be led by an employee of the Federal Government) to accompany members of an inspection team of the Technical Secretariat and, in doing so, shall ensure that—

(A) a special agent of the Federal Bureau of Investigation, as designated by the Federal Bureau of Investigation, accompanies each inspection team visit pursuant to paragraph (1);

(B) no employee of the Environmental Protection Agency or the Occupational Safety and Health Administration accompanies any inspection team visit conducted pursuant to paragraph (1); and

(3) Objections to individuals serving as inspectors

(A) In general

In deciding whether to exercise the right of the United States under the Convention to object to an individual serving as an inspector, the President shall give great weight to his reasonable belief that—

(i) such individual is or has been a member of, or a participant in, any group or organization that has engaged in, or attempted or conspired to engage in, or aided or abetted in the commission of, any terrorist act or activity;

(ii) such individual has committed any act or activity which would be a felony under the laws of the United States; or

(iii) the participation of such individual as a member of an inspection team would pose a risk to the national security or economic well-being of the United States.

(B) Not subject to judicial review

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

§ 6724. Procedures for inspections

(a) Types of inspections

(b) Notice

(1) In general

(2) Time of notification

(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

(4) Separate notices required

(d) Timeframe for inspections

(e) Scope

(1) In general

(2) Exception

Unless required by the Convention, no inspection under this subchapter shall extend to—

(A) financial data;

(B) sales and marketing data (other than shipment data);

(D) personnel data;

(E) research data;

(F) patent data;

(G) data maintained for compliance with environmental or occupational health and safety regulations; or

(H) personnel and vehicles entering and personnel and personal passenger vehicles exiting the facility.

(f) Sampling and safety

(1) In general

(2) Compliance with regulations

(g) Coordination

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

§ 6725. Warrants

(a) In general

(b) Routine inspections

(1) Obtaining administrative search warrants

(2) Content of affidavits for administrative search warrantsThe judge of the United States shall promptly issue a warrant authorizing the requested inspection upon an affidavit submitted by the United States Government showing that—

(A) the Chemical Weapons Convention is in force for the United States;

(B) the plant site, plant, or other facility or location sought to be inspected is required to report data under subchapter III of this chapter and is subject to routine inspection under the Convention;

(i) in the case of any facility owned or operated by a non-Government entity related to Schedule 1 chemical agents, to verify that the facility is not used to produce any Schedule 1 chemical agent except for declared chemicals; quantities of Schedule 1 chemicals produced, processed, or consumed are correctly declared and consistent with needs for the declared purpose; and Schedule 1 chemicals are not diverted or used for other purposes;

(ii) in the case of any facility related to Schedule 2 chemical agents, to verify that activities are in accordance with obligations under the Convention and consistent with the information provided in data declarations; and

(iii) in the case of any facility related to Schedule 3 chemical agents and any other chemical production facility, to verify that the activities of the facility are consistent with the information provided in data declarations;

(D) the items, documents, and areas to be searched and seized;

(E) in the case of a facility related to Schedule 2 or Schedule 3 chemical agents or unscheduled discrete organic chemicals, the plant site has not been subject to more than 1 routine inspection in the current calendar year, and, in the case of facilities related to Schedule 3 chemical agents or unscheduled discrete organic chemicals, the inspection will not cause the number of routine inspections in the United States to exceed 20 in a calendar year;

(F) the selection of the site was made in accordance with procedures established under the Convention and, in particular—

(i) in the case of any facility owned or operated by a non-Government entity related to Schedule 1 chemical agents, the intensity, duration, timing, and mode of the requested inspection is based on the risk to the object and purpose of the Convention by the quantities of chemical produced, the characteristics of the facility and the nature of activities carried out at the facility, and the requested inspection, when considered with previous such inspections of the facility undertaken in the current calendar year, shall not exceed the number reasonably required based on the risk to the object and purpose of the Convention as described above;

(ii) in the case of any facility related to Schedule 2 chemical agents, the Technical Secretariat gave due consideration to the risk to the object and purpose of the Convention posed by the relevant chemical, the characteristics of the plant site and the nature of activities carried out there, taking into account the respective facility agreement as well as the results of the initial inspections and subsequent inspections; and

(iii) in the case of any facility related to Schedule 3 chemical agents or unscheduled discrete organic chemicals, the facility was selected randomly by the Technical Secretariat using appropriate mechanisms, such as specifically designed computer software, on the basis of two weighting factors: (I) equitable geographical distribution of inspections; and (II) the information on the declared sites available to the Technical Secretariat, related to the relevant chemical, the characteristics of the plant site, and the nature of activities carried out there;

(G) the earliest commencement and latest closing dates and times of the inspection; and

(H) the duration of inspection will not exceed time limits specified in the Convention unless agreed by the owner, operator, or agent in charge of the plant.

(3) Content of warrants

(4) Challenge inspections

(A) Criminal search warrant

(B) Information providedThe United States Government shall provide to the judge of the United States—

(i) all appropriate information supplied by the Technical Secretariat to the United States National Authority regarding the basis for the selection of the plant site, plant, or other facility or location for the type of inspection sought;

(ii) any other appropriate information relating to the reasonableness of the selection of the plant, plant site, or other facility or location for the inspection;

(iii) information concerning—(I) the duration and scope of the inspection;(II) areas to be inspected;(III) records and data to be reviewed; and(IV) samples to be taken;

(iv) appropriate evidence or reasons provided by the requesting state party for the inspection;

(v) any other evidence showing probable cause to believe that a violation of this chapter has occurred or is occurring; and

(vi) the identities of the representatives of the Technical Secretariat on the inspection team and the Federal Government employees accompanying the inspection team.

(i) the type of inspection authorized;

(ii) the purpose of the inspection;

(iii) the type of plant site, plant, or other facility or location to be inspected;

(iv) the areas of the plant site, plant, or other facility or location to be inspected;

(v) the items, documents, data, equipment, and computers that may be inspected or seized;

(vi) samples that may be taken;

(vii) the earliest commencement and latest concluding dates and times of the inspection; and

(viii) the identities of the representatives of the Technical Secretariat on the inspection teams and the Federal Government employees accompanying the inspection team.

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

§ 6726. Prohibited acts relating to inspections

It shall be unlawful for any person willfully to fail or refuse to permit entry or inspection, or to disrupt, delay, or otherwise impede an inspection, authorized by this chapter.

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

§ 6727. National security exception

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

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

§ 6728. Annual report on inspections

(a) In general

(b) Content of reports

Each report shall contain the following information for the reporting period:

(1) The name of each company or entity subject to the jurisdiction of the United States reporting data pursuant to subchapter III of this chapter.

(2) The number of inspections under the Convention conducted on the territory of the United States.

(3) The number and identity of inspectors conducting any inspection described in paragraph (2) and the number of inspectors barred from inspection by the United States.

(4) The cost to the United States for each inspection described in paragraph (2).

(5) The total costs borne by United States business firms in the course of inspections described in paragraph (2).

(6) A description of the circumstances surrounding inspections described in paragraph (2), including instances of possible industrial espionage and misconduct of inspectors.

(7) The identity of parties claiming loss of trade secrets, the circumstances surrounding those losses, and the efforts taken by the United States Government to redress those losses.

(8) A description of instances where inspections under the Convention outside the United States have been disrupted or delayed.

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

§ 6729. United States assistance in inspections at private facilities

(a) Assistance in preparation for inspections

(b) Reimbursement requirement

(1) In general

(2) Exception

(c) Owners covered by United States National Authority reimbursementsSubsection (b)(2) applies in the case of assistance provided to the following:

(1) Small business concerns

(2) Domestic producers of Schedule 3 or unscheduled discrete organic chemicalsAny person located in the United States that—

(A) does not possess, produce, process, consume, import, or export any Schedule 1 or Schedule 2 chemical; and

(B) in the calendar year preceding the year in which the assistance is to be provided, produced—

(i) more than 30 metric tons of Schedule 3 or unscheduled discrete organic chemicals that contain phosphorous, sulfur, or fluorine; or

(ii) more than 200 metric tons of unscheduled discrete organic chemicals.

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