LEGISLATION — Chemical Weapons Convention Implementation Act of 1998
 
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, 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 subparagraph (A) 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.