22 U.S.C. § 6713 — Civil liability of United States

Page 1844 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6712 complete classification of division I to the Code, see Short Title note set out under section 6701 of this title and Tables. Executive Documents EX. ORD. NO. 13128. IMPLEMENTATION OF THE CHEMICAL WEAPONS CONVENTION AND THE CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT Ex. Ord. No. 13128, June 25, 1999, 64 F.R. 34703, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Chemical Weapons Convention Implementation Act of 1998 [22 U.S.C. 6701 et seq.] (as enacted in Division I of Public Law 105–277) (the Act), the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code, and in order to facilitate implementation of the Act and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (the ‘‘Con- vention’’), it is hereby ordered as follows: SECTION 1. The Department of State shall be the United States National Authority (the ‘‘USNA’’) for purposes of the Act and the Convention. SEC. 2. The USNA shall coordinate the implementa- tion of the provisions of the Act and the Convention with an interagency group consisting of the Secretary of Defense, the Attorney General, the Secretary of Commerce, the Secretary of Energy, and the heads of such other agencies or departments, or their designees, I may consider necessary or advisable. SEC. 3. The Departments of State and Commerce, and other agencies as appropriate, each shall issue, amend, or revise regulations, orders, or directives as necessary to implement the Act and U.S. obligations under Arti- cle VI and related provisions of the Convention. Regu- lations under section 401(a) of the Act [22 U.S.C. 6741(a)] shall be issued by the Department of Commerce by a date specified by the USNA, which shall review and ap- prove these regulations, in coordination with the inter- agency group designated in section 2 of this order, prior to their issuance. SEC. 4. The Secretary of Commerce is authorized: (a) to obtain and execute warrants pursuant to sec- tion 305 of the Act [22 U.S.C. 6725] for the purposes of conducting inspections of facilities subject to the regu- lations issued by the Department of Commerce pursu- ant to section 3 of this order; (b) to suspend or revoke export privileges pursuant to section 211 of the Act [18 U.S.C. 229 note]; and (c) to carry out all functions with respect to pro- ceedings under section 501(a) of the Act [22 U.S.C. 6761(a)] and to issue regulations with respect thereto, except for those functions that the Act specifies are to be performed by the Secretary of State or the USNA. SEC. 5. The Departments of State, Defense, Com- merce, and Energy, and other agencies as appropriate, are authorized to carry out, consistent with the Act and in accordance with subsequent directives, appro- priate functions that are not otherwise assigned in the Act and are necessary to implement the provisions of the Convention and the Act. SEC. 6. The Departments of State, Defense, Com- merce, and Energy, and other agencies, as appropriate, are authorized to provide assistance to facilities not owned or operated by the U.S. Government, or con- tracted for use by or for the U.S. Government, in meet- ing reporting requirements and in preparing the facili- ties for possible inspection pursuant to the Convention. SEC. 7. The USNA, in coordination with the inter- agency group designated in section 2 of this order, is authorized to determine whether disclosure of con- fidential business information pursuant to section 404(c) of the Act [22 U.S.C. 6744(c)] is in the national in- terest. Disclosure will not be permitted if contrary to national security or law enforcement needs. SEC. 8. In order to take additional steps with respect to the proliferation of weapons of mass destruction and means of delivering them and the national emergency described and declared in Executive Order 12938 of No- vember 14, 1994 [listed in a table under section 1701 of Title 50, War and National Defense], as amended by Ex- ecutive Order 13094 of July 30, 1998, section 3 of Execu- tive Order 12938, as amended, is amended to add a new subsection (e) to read as follows: ‘‘(e) the Secretary of Commerce shall impose and enforce such restrictions on the importation of chemicals into the United States as may be necessary to carry out the requirements of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.’’ SEC. 9. Any investigation emanating from a possible violation of this order, or of any license, order, or regu- lation issued pursuant to this order, involving or re- vealing a possible violation of 18 U.S.C. section 229 shall be referred to the Federal Bureau of Investigation (FBI), which shall coordinate with the referring agency and other appropriate agencies. The FBI shall timely notify the referring agency and other appropriate agen- cies of any action it takes on such referrals. SEC. 10. Nothing in this order shall create any right or benefit, substantive or procedural, enforceable by any party against the United States, its agencies or in- strumentalities, its officers or employees, or any other person. SEC. 11. (a) This order shall take effect at 12:01 a.m. eastern daylight time, June 26, 1999. (b) This order shall be transmitted to the Congress and published in the Federal Register. WILLIAM J. CLINTON. § 6712. 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 chapter or the Convention. (Pub. L. 105–277, div. I, title I, § 102, Oct. 21, 1998, 112 Stat. 2681–861.) 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. § 6713. Civil liability of 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 ju- risdiction of any civil action or claim against the United States for any taking of property without just compensation that oc- curs by reason of the action of any officer or employee of the Organization for the Prohi- bition of Chemical Weapons, including any member of an inspection team of the Tech- nical Secretariat, or by reason of the action of any officer or employee of the United Page 1845 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6713 States pursuant to this chapter or the Con- vention. For purposes of this subsection, ac- tion taken pursuant to or under the color of this chapter 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 de- scribed in subparagraph (A) that does not ex- ceed $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 in- tent 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 fol- lowing the notification shall not be counted for purposes of any law limiting the period within which the civil action may be com- menced. (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 chapter. (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 Tech- nical 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 bur- den 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 in- formation; (C) the extent to which the proprietary in- formation is based on patents, trade secrets, or other protected intellectual property; (D) the significance of proprietary infor- mation; 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 Constitu- tion or any Federal or State law arising from the acts or omissions of any officer or employee of the United States or the Organization, includ- ing any member of an inspection team of the Technical Secretariat, taken pursuant to or under color of the Convention or this chapter. (c) Waiver of sovereign immunity of United States In any action under subsection (a) or (b), the United States may not raise sovereign immu- nity as a defense. (d) Authority for cause of action (1) United States actions in United States dis- trict court Notwithstanding any other law, the Attor- ney General of the United States is authorized to bring an action in the United States Dis- trict 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 vir- tue of the actions of an inspector of the Tech- nical Secretariat who is a national of that for- eign nation acting at the direction or the be- hest 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 inter- national tribunal for indemnification to the United States for any liability imposed on the United States by virtue of the actions of an in- spector 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 busi- nesses Notwithstanding any other law, any na- tional 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 unauthor- ized or unlawful acquisition, receipt, trans- mission, 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 pur- suant to or under the color of the Convention or this chapter. (e) Recoupment (1) Policy It is the policy of the United States to re- coup 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 em- ployee of the Organization, including any member of an inspection team of the Tech- Page 1846 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6713 1 See References in Text note below. nical Secretariat, taken under color of the Chemical Weapons Convention or this chapter. (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 em- ployee of the Organization, including any member of an inspection team of the Tech- nical Secretariat, for whose actions or omissions the United States has been held liable for a tort or taking pursuant to this chapter; 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 for- eign person described in clause (i) to pub- lish, divulge, disclose, or make known in any manner or to any extent not author- ized 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 Muni- tions List and shall terminate sales of any defense articles, defense services, or design and construction services to a person de- scribed in subparagraph (A) under the Arms Export Control Act [22 U.S.C. 2751 et seq.]. (ii) Sanctions under Export Administration Act of 1979 The authorities under section 6 1 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) 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 ac- cordance with section 262d of this title to a person described in subparagraph (A). (iv) Export-Import Bank transactions The United States shall not give ap- proval to guarantee, insure, or extend credit, or to participate in the extension of credit to a person described in subpara- graph (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 nec- essary 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 what- soever, 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 sub- paragraph (A) except as necessary to pro- vide 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 indi- cating 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 con- fidential business information, the President shall, within 30 days after the receipt of such information by the executive branch of Gov- ernment, notify the Congress in writing of such determination and, subject to the re- quirements 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 Muni- tions List, shall terminate sales of any de- fense articles, defense services, or design and construction services to that country under the Arms Export Control Act [22 U.S.C. 2751 et seq.], 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 ex- port 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 assist- ance, providing military assistance or grant military education and training, or extending military credits or making guarantees to a country described in sub- paragraph (A). (iv) Sanctions under Export Administration Act of 1979 The authorities of section 6 1 of the Ex- port 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) 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 Page 1847 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6713 2 So in original. Probably should be ‘‘losses’’. international financial institutions in ac- cordance with section 262d of this title to a country described in subparagraph (A). (vi) Termination of assistance under For- eign Assistance Act of 1961 The United States shall terminate all as- sistance to a country described in subpara- graph (A) under the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et seq.], except for urgent humanitarian assistance. (vii) Private bank transactions The United States shall not give ap- proval 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), ex- cept as necessary to provide for emer- gencies 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 satis- faction of a tort or taking for which the United States has been held liable pursuant to this chapter. (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 Rep- resentatives and the Committee on Foreign Relations of the Senate that such waiver is necessary to protect the national security in- terests of the United States. The certification shall set forth the reasons supporting the de- termination 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 be- come effective against a foreign person pursu- ant to this chapter, the President shall trans- mit written notification of the imposition of sanctions against that foreign person to the chairmen and ranking members of the Com- mittee 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 informa- tion The Secretary of State shall deny a visa to, and the Attorney General shall exclude from the United States any alien who, after October 21, 1998— (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 com- ing to him in the course of his employment or official duties, or by reason of any examina- tion or investigation of any return, report, or record made to or filed with the Organization, or any officer or employee thereof, such prac- tice or disclosure having resulted in financial loses 2 or damages to a United States person and for which actions or omissions the United States has been found liable of a tort or tak- ing pursuant to this chapter; (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, share- holder with a controlling interest of an entity which has been involved in the unauthorized disclosure of United States confidential busi- ness information, a proven claim to which is owned by a United States national; or (4) is a spouse, minor child, or agent of a per- son excludable under paragraph (1), (2), or (3). (g) ‘‘United States confidential business informa- tion’’ defined In this section, the term ‘‘United States con- fidential business information’’ means any trade secrets or commercial or financial information that is privileged and confidential— (1) including— (A) data described in section 6724(e)(2) of this title, (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, 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. (Pub. L. 105–277, div. I, title I, § 103, Oct. 21, 1998, 112 Stat. 2681–861.) 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- Page 1848 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 6721 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. The Arms Export Control Act, referred to in subsec. (e)(2)(B)(i), (3)(B)(i), is Pub. L. 90–629, Oct. 22, 1968, 82 Stat. 1320, which is classified principally to chapter 39 (§ 2751 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2751 of this title and Tables. The Export Administration Act of 1979, referred to in subsec. (e)(2)(B)(ii), (3)(B)(iv), is Pub. L. 96–72, Sept. 29, 1979, 93 Stat. 503, which was classified principally to chapter 56 (§ 4601 et seq.) of Title 50, War and National Defense, prior to repeal by Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232, except for sections 11A, 11B, and 11C thereof (50 U.S.C. 4611, 4612, 4613). Sections 5 and 6 of the Act were classified to sec- tions 4604 and 4605, respectively, of Title 50 prior to re- peal. The Foreign Assistance Act of 1961, referred to in sub- sec. (e)(3)(B)(vi), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424, which is classified principally to chapter 32 (§ 2151 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 2151 of this title and Tables. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on International Relations of House of Representatives changed to Committee on Foreign Af- fairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. SUBCHAPTER II—INSPECTIONS § 6721. Definitions (a) In general In this subchapter, the terms ‘‘challenge in- spection’’, ‘‘plant site’’, ‘‘plant’’, ‘‘facility agree- ment’’, ‘‘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 Con- vention. The term ‘‘routine inspection’’ means an inspection, other than an ‘‘initial inspec- tion’’, undertaken pursuant to Article VI of the Convention. (b) ‘‘Judge of the United States’’ defined In this subchapter, the term ‘‘judge of the United States’’ means a judge or magistrate judge of a district court of the United States. (Pub. L. 105–277, div. I, title III, § 301, Oct. 21, 1998, 112 Stat. 2681–872.) Editorial Notes REFERENCES IN TEXT This subchapter, referred to in text, was in the origi- nal ‘‘this title’’, meaning title III of div. I of Pub. L. 105–277, Oct. 21, 1998, 112 Stat. 2681–872, which enacted this subchapter and section 436 of former Title 41, Pub- lic Contracts. For complete classification of title III to the Code, see Tables. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41. § 6722. Facility agreements (a) Authorization of inspections Inspections by the Technical Secretariat of plants, plant sites, or other facilities or loca- tions for which the United States has a facility agreement with the Organization shall be con- ducted in accordance with the facility agree- ment. 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 inspec- tion request. (b) Types of facility agreements (1) Schedule 2 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 para- graph 4 of Article VI of the Convention are concluded unless the owner, operator, occu- pant, or agent in charge of the facility and the Technical Secretariat agree that such an agreement is not necessary. (2) Schedule 3 facilities The United States National Authority shall ensure that facility agreements are concluded for plants, plant sites, or other facilities or lo- cations that are subject to inspection pursu- ant to paragraph 5 or 6 of Article VI of the Convention if so requested by the owner, oper- ator, occupant, or agent in charge of the facil- ity. (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 devel- opment of the agreement relating to that facil- ity is notified and, if the person notified so re- quests, the person may participate in the prep- arations for the negotiation of such an agree- ment. To the maximum extent practicable con- sistent with the Convention, the owner and the operator, occupant or agent in charge of a facil- ity 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 inspec- tion; (2) describe the procedures for providing no- tice 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 No inspection of a plant, plant site, or other facility or location in the United States shall take place under the Convention without the au- thorization of the United States National Au- thority in accordance with the requirements of this subchapter. (b) Authority (1) Technical Secretariat inspection teams Any duly designated member of an inspec- tion team of the Technical Secretariat may