§ 6725. — Warrants.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC6725]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 75--CHEMICAL WEAPONS CONVENTION IMPLEMENTATION
SUBCHAPTER II--INSPECTIONS
Sec. 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
inspected prior to any inspection referred to in section 6724(a) of this
title. 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) of this
section, 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
subchapter III of this chapter 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 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.
(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.
(Pub. L. 105-277, div. I, title III, Sec. 305, Oct. 21, 1998, 112 Stat.
2681-875.)
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
reflect 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.
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.
Section Referred to in Other Sections
This section is referred to in section 6724 of this title.
