22 U.S.C. § 6725 — Warrants

Page 1850 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6725 (3) Content of notice (A) In general The notice under paragraph (1) shall in- clude 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 loca- tion for the type of inspection sought; (iii) the time and date that the inspec- tion will begin and the period covered by the inspection; and (iv) the names and titles of the inspec- tors. (B) Special rule for challenge inspections In the case of a challenge inspection pur- suant to Article IX of the Convention, the notice shall also include all appropriate evi- dence 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 Tech- nical Secretariat and the accompanying employ- ees of the Federal Government (and, in the case of an inspection of a United States Government facility, any accompanying contractor per- sonnel) shall display appropriate identifying cre- dentials to the owner, operator, occupant, or agent in charge of the premises before the in- spection is commenced. (d) Timeframe for inspections Consistent with the provisions of the Conven- tion, each inspection shall be commenced and completed with reasonable promptness and shall be conducted at reasonable times, within rea- sonable limits, and in a reasonable manner. (e) Scope (1) In general Except as provided in a warrant issued under section 6725 of this title or a facility agree- ment entered into under section 6722 of this title, an inspection conducted under this sub- chapter may extend to all things within the premises inspected (including records, files, papers, processes, controls, structures and ve- hicles) related to whether the requirements of the Convention applicable to such premises have been complied with. (2) Exception Unless required by the Convention, no in- spection under this subchapter 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 provi- sion of samples to a member of the inspection team of the Technical Secretariat in accord- ance 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 in- spection team or other individuals present. No sample collected in the United States pursu- ant to an inspection permitted by this chapter may be transferred for analysis to any labora- tory outside the territory of the United States. (2) Compliance with regulations In carrying out their activities, members of the inspection team of the Technical Secre- tariat and representatives of agencies or de- partments 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 inter- acting with the members of the inspection team of the Technical Secretariat. (Pub. L. 105–277, div. I, title III, § 304, Oct. 21, 1998, 112 Stat. 2681–874; Pub. L. 107–107, div. A, title XII, § 1204(b), Dec. 28, 2001, 115 Stat. 1247.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (f)(1), was in the original ‘‘this Act’’ and was translated as reading ‘‘this division’’, meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to reflect the probable intent of Congress. For complete classifica- tion of division I to the Code, see Short Title note set out under section 6701 of this title and Tables. AMENDMENTS 2001—Subsec. (c). Pub. L. 107–107 substituted ‘‘Federal Government (and, in the case of an inspection of a United States Government facility, any accompanying contractor personnel)’’ for ‘‘Federal government’’. § 6725. Warrants (a) In general The United States Government shall seek the consent of the owner or the operator, occupant, or agent in charge of the premises to be in- spected prior to any inspection referred to in section 6724(a) of this title. If consent is ob- tained, a warrant is not required for the inspec- Page 1851 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6725 tion. The owner or the operator, occupant, or agent in charge of the premises to be inspected may withhold consent for any reason or no rea- son. 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 Ar- ticle 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 appro- priate information supplied by the Technical Secretariat to the United States National Au- thority regarding the basis for the selection of the plant site, plant, or other facility or loca- tion 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 se- lection of the plant, plant site, or other facil- ity or location for the inspection. (2) Content of affidavits for administrative search warrants The judge of the United States shall prompt- ly 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 re- quired to report data under subchapter III of this chapter and is subject to routine inspec- tion 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 re- lated to Schedule 1 chemical agents, to verify that the facility is not used to produce any Schedule 1 chemical agent ex- cept for declared chemicals; quantities of Schedule 1 chemicals produced, processed, or consumed are correctly declared and consistent with needs for the declared pur- pose; and Schedule 1 chemicals are not di- verted 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 obliga- tions under the Convention and consistent with the information provided in data dec- larations; 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 con- sistent 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 inspec- tions 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 re- lated 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 Con- vention by the quantities of chemical pro- duced, the characteristics of the facility and the nature of activities carried out at the facility, and the requested inspection, when considered with previous such in- spections 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 Con- vention 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 Con- vention 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 ini- tial inspections and subsequent inspec- tions; 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 distribu- tion of inspections; and (II) the informa- tion on the declared sites available to the Technical Secretariat, related to the rel- evant chemical, the characteristics of the plant site, and the nature of activities car- ried out there; (G) the earliest commencement and latest closing dates and times of the inspection; and (H) the duration of inspection will not ex- ceed 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 affi- davit 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 in- Page 1852 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6726 spection and the observers of the inspection and, if applicable, the identities of the rep- resentatives of agencies or departments of the United States accompanying those representa- tives. (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 Con- vention, where consent has been withheld, the United States Government shall first ob- tain 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 pro- vide 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 selec- tion of the plant, plant site, or other facil- ity or location for the inspection; (iii) information concerning— (I) the duration and scope of the in- spection; (II) areas to be inspected; (III) records and data to be reviewed; and (IV) samples to be taken; (iv) appropriate evidence or reasons pro- vided 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 inspec- tion 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, equip- ment, and computers that may be in- spected or seized; (vi) samples that may be taken; (vii) the earliest commencement and lat- est concluding dates and times of the in- spection; and (viii) the identities of the representa- tives of the Technical Secretariat on the inspection teams and the Federal Govern- ment employees accompanying the inspec- tion team. (Pub. L. 105–277, div. I, title III, § 305, Oct. 21, 1998, 112 Stat. 2681–875.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b)(4)(B)(v), was in the original ‘‘this Act’’ and was translated as reading ‘‘this division’’, meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Convention Implementation Act of 1998, to re- flect the probable intent of Congress. For complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables. Executive Documents DELEGATION OF FUNCTIONS For authority of Secretary of Commerce to obtain and execute certain warrants pursuant to this section, see section 4 of Ex. Ord. No. 13128, June 25, 1999, 64 F.R. 34703, set out as a note under section 6711 of this title. § 6726. Prohibited acts relating to inspections It shall be unlawful for any person willfully to fail or refuse to permit entry or inspection, or to disrupt, delay, or otherwise impede an inspec- tion, authorized by this chapter. (Pub. L. 105–277, div. I, title III, § 306, Oct. 21, 1998, 112 Stat. 2681–878.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’ and was translated as reading ‘‘this divi- sion’’, meaning div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–856, known as the Chemical Weapons Conven- tion Implementation Act of 1998, to reflect the probable intent of Congress. For complete classification of divi- sion I to the Code, see Short Title note set out under section 6701 of this title and Tables. § 6727. National security exception Consistent with the objective of eliminating chemical weapons, the President may deny a re- quest to inspect any facility in the United States in cases where the President determines that the inspection may pose a threat to the na- tional security interests of the United States. (Pub. L. 105–277, div. I, title III, § 307, Oct. 21, 1998, 112 Stat. 2681–878.) § 6728. Annual report on inspections (a) In general Not later than one year after October 21, 1998, and annually thereafter, the President shall sub- mit 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 infor- mation for the reporting period: (1) The name of each company or entity sub- ject to the jurisdiction of the United States reporting data pursuant to subchapter III of this chapter. (2) The number of inspections under the Con- vention conducted on the territory of the United States.