[Federal Register Volume 64, Number 250 (Thursday, December 30, 1999)]
[Rules and Regulations]
[Pages 73811-73817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33239]
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DEPARTMENT OF STATE
22 CFR Part 103
[Public Notice 3183]
RIN 1400-ZA01
Chemical Weapons Convention and the Chemical Weapons Convention
Implementation Act of 1998; Taking of Samples; Recordkeeping and
Inspections
AGENCY: Bureau of Arms Control, State.
ACTION: Final rule.
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SUMMARY: The Department of State is issuing this final rule to
implement the provisions of the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on
Their Destruction, also known as the Chemical Weapons Convention (CWC
or Convention), and the Chemical Weapons Convention Implementation Act
of 1998 (Act) on the taking of samples and on the enforcement of the
requirements concerning record keeping and inspections. The Act
authorizes the United States Government to implement provisions of the
Convention. These regulations will enable the United States Government
to execute the relevant provisions of the Convention and the Act.
EFFECTIVE DATE: December 30, 1999.
FOR FURTHER INFORMATION CONTACT: Michael Coffee, Office of the Legal
Adviser (L/ACN), 2201 C Street, N.W., Washington, DC 20520.
SUPPLEMENTARY INFORMATION: In Part II of the July 21, 1999 Federal
Register, the Department of State (64 Fed. Reg. 39244) and the
Department of Commerce (64 Fed. Reg. 39194) published, with a thirty
day public comment period, proposed rules to implement provisions of
the Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their Destruction and
the Chemical Weapons Convention Implementation Act of 1998.
On April 25, 1997, the United States ratified the CWC. The
Convention is both an arms control and nonproliferation treaty. As
such, the Convention bans the development, production, stockpiling, and
use of chemical weapons, and prohibits States Parties from assisting or
encouraging anyone to engage in any activity prohibited by the
Convention. States Parties to the Convention, including the United
States, have agreed to a comprehensive verification regime that
provides transparency and ensures that no State Party to the Convention
is engaging in activity prohibited by the Convention. The verification
regime includes declarations and reports by, and on-site inspection of,
facilities engaged in or formerly engaged in activities involving
certain chemicals. To further its nonproliferation objectives, the
Convention requires restrictions on the import and export of certain
chemicals. This rule implements Secs. 304(f)(1) and 501 of the Chemical
Weapons Convention Implementation Act of 1998, 22 U.S.C. 6701 et seq.
These regulations provide the guidelines under which the taking of a
sample may be required during an on-site inspection conducted pursuant
to the Convention. These regulations will also establish the civil
enforcement regime for a violation of Secs. 306 or 405 of the Act.
A number of responses were received by the Department of State.
Following are relevant comments raised as well as the Department of
State's response.
[[Page 73812]]
1. Conformity with the Department of Commerce's Regulations. One
respondent indicated that the Departments of State's and Commerce's
proposed regulations implementing the Convention and the Act did not
always conform. The regulations have been modified to be more
consistent.
2. Definitions. One respondent indicated that the definition of
Administrative Law Judge was circular. As Administrative Law Judges are
established by Title 5 of the United States Code, and are already
defined in Sec. 719.1(b) of the Department of Commerce's regulations,
the term will not be defined in this rule. At the request of the same
respondent, ``Inspection assistant'' has been defined. The same
respondent requested a definition of ``Site representatives.'' Because
the term is self-explanatory, it will not be defined in this rule.
3. Consultation with facility prior to requiring a sample. All
respondents requested that the Host Team Leader communicate with a
representative of the site prior to the requirement of a sample. In
practice, the site representative will be involved throughout the
inspection. In Sec. 103.3(a), the rule now explicitly gives the site
representative the right to communicate reasons for which a sample
should not be required.
4. Voluntary provision of samples. One respondent stated that a
facility should be able to provide a sample without being required to
do so. Although the section requiring the provision of samples had been
drafted for situations in which samples are not volunteered, a new
provision has been inserted in Sec. 103.3(a) recognizing that samples
may be voluntarily provided.
5. Written notification of requirement to provide a sample. One
respondent requested that the notification of a requirement to provide
a sample be in writing. This request has been approved, and is
reflected in Sec. 103.3(b).
6. Purpose of analysis of samples. All respondents commented on the
limitation of the language concerning the reasons for analysis of
samples. The provision has been deleted as it is unnecessary. Part II,
paragraph 39, of the Convention's Verification Annex already provides
that the Inspection Team may only engage in activities that are
necessary to discharge its functions.
7. On-site analysis of samples. All respondents recommended that
samples be analyzed on-site, where possible. This will occur pursuant
to paragraph 53 of Part II of the Convention's Verification Annex,
which provides that ``[w]here possible, the analysis of samples shall
be performed on-site.''
8. Observing the taking of a sample. One respondent suggested that
the owner or operator of a facility should be permitted to observe the
taking of a sample. The owner or operator, occupant or agent in charge
of the inspected premises already has the right to decide whether a
representative of the premises will take the sample. The rule has been
modified in Sec. 103.3(f) to explicitly allow the owner or operator,
occupant or agent in charge of the inspected premises to elect to have
a representative present during the taking of a sample.
9. United States National Authority (USNA) decision that a sample
is not required. One respondent requested clarification that a decision
by the USNA not to require a sample will result in no requirement to
provide a sample. The rule has been modified in Sec. 103.3(e)(2)
accordingly.
10. Failure to comply with section 103.3 of this rule. One
respondent has questioned the text in Sec. 103.3(i). Because a failure
to provide a required sample might delay or impede an inspection, it
may be determined to be a violation of Sec. 306 of the Act.
11. Handling of samples. One respondent has recommended that
samples should be handled in a manner consistent with facility rules.
Such a provision belongs in a facility agreement between the United
States and the Organization for the Prohibition of Chemical Weapons.
12. Interpretation of Sections 306 and 405 of the Act. All
respondents sought clarity concerning actions that will be considered
violations of sections 306 and 405 of the Act. Because determinations
of violations are fact-specific, it would be impossible to adequately
``interpret'' these provisions in this rule.
13. Recordkeeping Requirement. One respondent stated that
Sec. 103.5(b)(3) of the proposed rule exceeded the authority of
Sec. 405(3) of the Act. That provision had been modified to provide
clarity to the public. However, to avoid confusion, Sec. 103.5(b)(3)
now repeats the language of Sec. 405(3) of the Act.
14. Requesting a hearing. One respondent suggested that thirty (30)
days should be permitted to respond to a Notice of Violation and
Assessment and a proposed order. Because Sec. 501(a)(2)(A) of the Act
establishes a fifteen (15) day timeframe for a response, this rule
permits only fifteen (15) days for a response.
15. Computation of time for section 103.8 of this rule. One
respondent requested that this rule adopt rules to compute time for
purposes of Sec. 103.8. A computation rule is included in
Sec. 103.8(c).
16. Timing of review of initial decision. All respondents requested
more time during the review of the initial decision in Sec. 103.8(a).
Under Sec. 501(a)(3) of the Act, an initial decision and order becomes
final unless the head of the USNA modifies or vacates the decision and
order within thirty (30) days. Minor changes were made to the timelines
in Sec. 103.8(a) to the extent possible, consistent with Sec. 501(a)(3)
of the Act.
17. Introduction of new or additional evidence. One respondent
recommended that new or additional evidence be permitted during the
review of an initial decision. Text has been deleted from
Sec. 103.8(a)(2); instead Sec. 557 of the Administrative Procedure Act
shall govern.
18. Oral Argument. Two respondents recommended that oral argument
should not be explicitly precluded. Section 103.8(a)(6) no longer
explicitly precludes oral argument. The Administrative Law Judge will
have discretion in permitting oral argument.
Administrative Procedure Act Requirements
Because this rule involves a foreign affairs function of the United
States, it is not subject to 5 U.S.C. 553 and 554. However, the
Department has previously issued this rule in proposed form and
comments were encouraged for the development of this final rule.
Regulatory Flexibility Analysis
Because this rule involves a foreign affairs function of the United
States, the Department of State is not required to prepare a regulatory
flexibility analysis.
Executive Order 12866 Determiniation
This rule is exempt from Executive Order 12866, but has been
reviewed internally by the Department to ensure consistency with the
purposes thereof.
Paperwork Reduction Act Statement
Section 103.5(b) of this rule states that no person may willfully
fail or refuse: (1) to establish or maintain any record required under
the Chemical Weapons Convention Implementation Act or 15 CFR Parts 710
through 722; (2) to submit any report, notice, or other information
prescribed by the Act or 15 CFR Parts 710 through 722; or (3) to permit
access to or copying of any record that is exempt from disclosure under
the Act or 15 CFR Parts 710 through 722.
Notwithstanding any other provision of law, no person is required,
nor shall any person be subject to a penalty for failure, to comply
with a collection of
[[Page 73813]]
information, subject to the Paperwork Reduction Act (PRA), unless that
collection of information displays a currently valid OMB Control
Number. In promulgating 15 CFR Parts 710 through 722, the Department of
Commerce revised an existing collection of information requirement
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.), which has been submitted for approval to the Office of
Management and Budget. Accordingly, the Department of State will not
seek the approval of the Office of Management and Budget. The public
reporting burdens for the new collections of information are estimated
to average 9 hours for Schedule 1 chemicals, 7.2 hours for Schedule 2
chemicals, 2.5 hours for Schedule 3 chemicals, 5.3 hours for
unscheduled discrete organic chemicals, and .17 hours for Schedule 1
notifications. These estimates include the time required to complete
the required forms.
Unfunded Mandates Reform Act Requirements
No actions are necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Federalism Assessment
Because this rule will not have a substantial direct effect on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, a Federalism Assessment is not warranted.
List of Subjects in 22 CFR Part 103
Administrative practice and procedures, Chemicals, Foreign
relations, Freedom of information, International organizations,
Investigations, National security information, Penalties, Reporting and
recordkeeping requirements, Treaties.
For the reasons set forth in the preamble, the Department adds to
subchapter K the following part 103 to Title 22 of the Code of Federal
Regulations:
PART 103--REGULATIONS FOR IMPLEMENTATION OF THE CHEMICAL WEAPONS
CONVENTION AND THE CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT
OF 1998 ON THE TAKING OF SAMPLES AND ON ENFORCEMENT OF REQUIREMENTS
CONCERNING RECORDKEEPING AND INSPECTIONS
Subpart A--General
Sec.
103.1 Purpose.
103.2 Definitions.
Subpart B--Samples
103.3 Requirement to provide a sample.
Subpart C--Recordkeeping and Inspection Requirements
103.4 General.
103.5 Violations.
103.6 Penalties.
103.7 Initiation of administrative enforcement proceedings.
103.8 Final agency decision after administrative proceedings.
103.9 Final agency decision after settlement negotiations.
103.10 Appeals.
103.11 Payment of final assessment.
103.12 Reporting a violation.
Authority: Pub. L. 105-277, 112 Stat. 2681, Div. I (22 U.S.C.
6701 et seq.).
Subpart A--General
Sec. 103.1 Purpose.
This part is intended to implement sections 304(f)(1) and 501 of
the Chemical Weapons Convention Implementation Act of 1998 (Act), 22
U.S.C. 6701 et seq. The Chemical Weapons Convention Regulations
promulgated by the Department of Commerce, 15 CFR Parts 710 through
722, also implement sections of the Act.
Sec. 103.2 Definitions.
The following are definitions of terms as used in this part only.
Bureau of Export Administration (BXA). The Bureau of Export
Administration of the United States Department of Commerce, including
the Office of Export Administration and the Office of Export
Enforcement.
Chemical Weapons Convention (CWC or Convention). The Convention on
the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction, and its annexes opened for
signature on January 13, 1993, and entered into force on April 29,
1997.
CWCIA. The Chemical Weapons Convention Implementation Act of 1998.
(22 U.S.C. 6701 et seq.)
CWCR. The Chemical Weapons Convention Regulations promulgated by
the Department of Commerce. (15 CFR parts 710 through 722.)
Executive Director. The Executive Director, Office of the Legal
Adviser, U.S. Department of State.
Facility agreement. A written agreement or arrangement between a
State Party to the Convention and the Organization for the Prohibition
of Chemical Weapons relating to a specific facility subject to on-site
verification pursuant to Articles IV, V, and VI of the Convention.
Final decision. A decision or order assessing a civil penalty, or
otherwise disposing of or dismissing a case, which is not subject to
further administrative review under this part, but which may be subject
to collection proceedings or judicial review in an appropriate federal
court as authorized by law.
Host Team. The U.S. Government team that accompanies the Inspection
Team during a CWC inspection to which this part applies.
Host Team Leader. The head of the U.S. Government team that hosts
and accompanies the Inspection Team during a CWC inspection to which
this part applies.
Inspection assistant. An individual designated by the Technical
Secretariat to assist inspectors in an inspection, such as medical,
security and administrative personnel and interpreters.
Inspection Team. The group of inspectors and inspection assistants
assigned by the Director-General of the OPCW's Technical Secretariat to
conduct a particular inspection.
Lead agency. The executive department or agency responsible for
implementation of the CWC declaration and inspection requirements for
specified facilities. The lead agencies are the Department of Defense
(DOD) for facilities owned and operated by DOD (including those
operated by contractors to the agency), and those facilities leased to
and operated by DOD (including those operated by contractors to the
agency); the Department of Energy (DOE) for facilities owned and
operated by DOE (including those operated by contractors to the
agency), and those facilities leased to and operated by DOE (including
those operated by contractors to the agency), including the National
Laboratories and components of the nuclear weapons complex; and the
Department of Commerce (DOC) for all facilities that are not owned and
operated by or leased to and operated by DOD, DOE or other U.S.
Government agencies. Other departments and agencies that have notified
the United States National Authority of their decision to be excluded
from the CWCR shall also have lead agency responsibilities for
facilities that are
[[Page 73814]]
owned or operated by (including those operated by contractors to the
agency), or that are leased to or operated by, those other departments
and agencies (including those operated by contractors to the agency).
Office of Chemical and Biological Weapons Conventions. The office
in the Bureau of Arms Control of the United States Department of State
that includes the United States National Authority Coordinating Staff.
Organization for the Prohibition of Chemical Weapons (OPCW). The
entity established by the Convention to achieve the object and purpose
of the Convention, to ensure the implementation of its provisions,
including those for international verification of compliance with it,
and to provide a forum for consultation and cooperation among States
Parties.
Party. The United States Department of State and any person named
as a respondent under this part.
Perimeter. In case of a challenge inspection, the external boundary
of the site, defined by either geographic coordinates or description on
a map.
Person. Any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, any State or
any political subdivision thereof, or any political entity within a
State, any foreign government or nation or any agency, instrumentality
or political subdivision of any such government or nation, or other
entity located in the United States.
Respondent. Any person named as the subject of a letter of intent
to charge, or a Notice of Violation and Assessment (NOVA) and proposed
order.
Secretary. The Secretary of State.
Technical Secretariat. The Technical Secretariat of the
Organization for the Prohibition of Chemical Weapons established by the
Chemical Weapons Convention.
United States National Authority. The Department of State serving
as the national focal point for effective liaison with the Organization
for the Prohibition of Chemical Weapons and States Parties to the
Convention and implementing the provisions of the CWCIA in coordination
with an interagency group designated by the President consisting of the
Secretary of Defense, the Attorney General, the Secretary of Commerce,
the Secretary of Energy, the Chairman of the Joint Chiefs of Staff and
the heads of agencies considered necessary or advisable by the
President, or their designees. The Secretary of State is the Director
of the United States National Authority.
Subpart B--Samples
Sec. 103.3 Requirement to provide a sample.
(a) Voluntary provision of a sample. The Host Team Leader will
notify appropriate site representatives of any request by an Inspection
Team to take a sample. At the request of the appropriate site
representative, this notification will be in writing. A site
representative may volunteer to provide a sample to the Inspection
Team, or may communicate to the Host Team Leader any reason for which
the representative believes a sample should not be required.
(b) Notification of requirement to provide a sample. If a sample is
not provided pursuant to paragraph (a) of this section, the Host Team
Leader will notify, in writing, the owner or operator, occupant or
agent in charge of an inspected premises of any requirement, under
paragraph (c) or (e) of this section, to provide a sample pursuant to a
request, made in accordance with paragraph (k) of this section, of an
Inspection Team of the Technical Secretariat.
(c) Requirement to provide a sample. Pursuant to section 304(f)(1)
of the CWCIA, unless a lead agency advises the United States National
Authority pursuant to paragraph (d) of this section, the owner or
operator, occupant or agent in charge of the premises to be inspected
is hereby required to provide a sample pursuant to a request, made in
accordance with paragraph (k) of this section, of an Inspection Team of
the Technical Secretariat that a sample be taken in accordance with the
applicable provisions contained in the Chemical Weapons Convention and
the CWCIA.
(d) Consultations with the United States National Authority. After
consulting with the Host Team Leader, a lead agency that finds that any
of the following conditions, as modified pursuant to paragraph (j) of
this section if applicable, may not have been satisfied shall promptly
advise the United States National Authority, which, in coordination
with the interagency group designated by the President in section 2 of
Executive Order 13128, shall make a decision:
(1) The taking of a sample is consistent with the inspection aims
under the Convention and with its Confidentiality Annex;
(2) The taking of a sample does not unnecessarily hamper or delay
the operation of a facility or affect its safety, and is arranged so as
to ensure the timely and effective discharge of the Inspection Team's
functions with the least possible inconvenience and disturbance to the
facility;
(3) The taking of a sample is consistent with the applicable
facility agreement. In particular:
(i) Any sample will be taken at sampling points agreed to in the
relevant facility agreement; and
(ii) Any sample will be taken according to procedures agreed to in
the relevant facility agreement;
(4) In the absence of a facility agreement, due consideration is
given to existing sampling points used by the owner or operator,
occupant or agent in charge of the premises, consistent with any
procedures developed pursuant to the CWCR (15 CFR parts 710 through
722);
(5) The taking of a sample does not affect the safety of the
premises and will be consistent with safety regulations established at
the premises, including those for protection of controlled environments
within a facility and for personal safety;
(6) The taking of a sample does not pose a threat to the national
security interests of the United States; and
(7) The taking of a sample is consistent with any conditions
negotiated pursuant to paragraph (j) of this section, if applicable.
(e) Determination by United States National Authority. (1) If,
after being advised by the lead agency pursuant to paragraph (d) of
this section, the United States National Authority, in coordination
with the interagency group designated by the President to implement the
provisions of the CWCIA, determines that all of the conditions of
paragraph (d) are satisfied and that a sample shall be required, then
the owner or the operator, occupant or agent in charge of the premises
shall provide a sample pursuant to a request of the Inspection Team of
the Technical Secretariat.
(2) If, however, after being advised by the lead agency pursuant to
paragraph (d) of this section, the United States National Authority, in
coordination with the interagency group designated by the President to
implement the provisions of the CWCIA, determines that any of the
conditions of paragraph (d) are not satisfied and that a sample shall
not be required, then the owner or the operator, occupant or agent in
charge of the premises shall not be required to provide a sample
pursuant to a request of the Inspection Team of the Technical
Secretariat.
(f) Person to take a sample. If a sample is required, the owner or
the operator, occupant or agent in charge of the inspected premises
will determine whether the sample will be taken by a representative of
the premises, the Inspection Team, or any other
[[Page 73815]]
individual present. The owner or the operator, occupant or agent in
charge of the inspected premises may elect to have a representative
present during the taking of a sample.
(g) Requirement that samples remain in the United States. No sample
collected in the United States pursuant to an inspection permitted by
the CWCIA may be transferred for analysis to any laboratory outside the
territory of the United States.
(h) Handling of samples. Samples will be handled in accordance with
the Convention, the CWCIA, other applicable law, and the provisions of
any applicable facility agreement.
(i) Failure to comply with this section. Failure by any person to
comply with this section may be treated as a violation of section 306
of the Act and section 103.5(a).
(j) Conditions that restrict sampling activities during challenge
inspections. During challenge inspections within the inspected premises
the Host Team may negotiate conditions that restrict activities
regarding sampling, e.g., conditions that restrict where, when, and how
samples are taken, whether samples are removed from the site, and how
samples are analyzed.
(k) Format of Inspection Team request. It is the policy of the
United States Government that Inspection Team requests for samples
should be in written form from the head of the Inspection Team. When
necessary, before a sample is required to be provided, the Host Team
Leader should seek a written request from the head of the Inspection
Team.
(l) Requirement to provide a sample in the band around the outside
of the perimeter during a challenge inspection. In a band, not to
exceed a width of 50 meters, around the outside of the perimeter of the
inspected site, the Inspection Team, during a challenge inpsection, may
take wipes, air, soil or effluent samples where either:
(1) There is consent; or
(2) Such activity is authorized by a search warrant obtained
pursuant to section 305(b)(4) of the CWCIA.
Subpart C--Recordkeeping and Inspection Requirements
Sec. 103.4 General.
This subpart implements the enforcement of the civil penalty
provisions of section 501 of the Chemical Weapons Convention
Implementation Act of 1998 (CWCIA), and sets forth relevant
administrative proceedings by which such violations are adjudicated.
Both the Department of State (in this subpart), and the Department of
Commerce (in part 719 of the CWCR at 15 CFR parts 710 through 722) are
involved in the implementation and enforcement of section 501.
Sec. 103.5 Violations.
(a) Refusal to permit entry or inspection. No person may willfully
fail or refuse to permit entry or inspection, or disrupt, delay or
otherwise impede an inspection, authorized by the CWCIA.
(b) Failure to establish or maintain records. No person may
willfully fail or refuse:
(1) To establish or maintain any record required by the CWCIA or
the Chemical Weapons Convention Regulations (CWCR, 15 CFR parts 710
through 722) of the Department of Commerce; or
(2) To submit any report, notice, or other information to the
United States Government in accordance with the CWCIA or CWCR; or
(3) To permit access to or copying of any record that is exempt
from disclosure under the CWCIA or the CWCR.
Sec. 103.6 Penalties.
(a) Civil penalties. (1) Civil penalty for refusal to permit entry
or inspection. Any person that is determined to have willfully failed
or refused to permit entry or inspection, or to have willfully
disrupted, delayed or otherwise impeded an authorized inspection, as
set forth in Sec. 103.5(a), shall pay a civil penalty in an amount not
to exceed $25,000 for each violation. Each day the violation continues
constitutes a separate violation.
(2) Civil penalty for failure to establish or maintain records. Any
person that is determined to have willfully failed or refused to
establish or maintain any record, or to submit any report, notice, or
other information required by the CWCIA or the CWCR, or to permit
access to or copying of any record exempt from disclosure under the
CWCIA or CWCR as set forth in Sec. 103.5(b), shall pay a civil penalty
in an amount not to exceed $5,000 for each violation.
(b) Criminal penalties. Any person that knowingly violates the
CWCIA by willfully failing or refusing to permit entry or inspection;
or by disrupting, delaying or otherwise impeding an inspection
authorized by the CWCIA; or by willfully failing or refusing to
establish or maintain any required record, or to submit any required
report, notice, or other information; or by willfully failing or
refusing to permit access to or copying of any record exempt from
disclosure under the CWCIA or CWCR, shall, in addition to or in lieu of
any civil penalty that may be imposed, be fined under Title 18 of the
United States Code, or be imprisoned for not more than one year, or
both.
(c) Other remedial action. (1) Injunction. The United States may,
in a civil action, obtain an injunction against:
(i) The conduct prohibited under 18 U.S.C. 229 or 229C; or
(ii) The preparation or solicitation to engage in conduct
prohibited under 18 U.S.C. 229 or 229D.
(2) In addition, the United States may, in a civil action, restrain
any violation of section 306 or section 405 of the CWCIA, or compel the
taking of any action required by or under the CWCIA or the Convention.
Sec. 103.7 Initiation of administrative enforcement proceedings.
(a) Issuance of Notice of Violation and Assessment (NOVA). The
Director of the Office of Export Enforcement, Bureau of Export
Administration, Department of Commerce, may request that the Secretary
initiate an administrative enforcement proceeding under this section
and 15 CFR 719.5. If the request is in accordance with applicable law,
the Secretary will initiate an administrative enforcement proceeding by
issuing a Notice of Violation and Assessment (NOVA). The Office of
Chief Counsel for Export Administration, Department of Commerce shall
serve the NOVA as directed by the Secretary.
(b) Content of NOVA. The NOVA shall constitute a formal complaint,
and will set forth the basis for the issuance of the proposed order. It
will set forth the alleged violation(s) and the essential facts with
respect to the alleged violation(s), reference the relevant statutory,
regulatory or other provisions, and state the amount of the civil
penalty to be assessed. The NOVA will inform the respondent of the
right to request a hearing pursuant to paragraph (e) of this section
and the CWCR (15 CFR parts 710 through 722) at 15 CFR 719.6, inform the
respondent that failure to request such a hearing shall result in the
proposed order becoming final and unappealable on signature of the
Secretary of State, and provide payment instructions. A copy of the
regulations that govern the administrative proceedings will accompany
the NOVA.
(c) Proposed order. A proposed order shall accompany every NOVA. It
will briefly set forth the substance of the alleged violation(s) and
the statutory, regulatory or other provisions violated. It will state
the amount of the civil penalty to be assessed.
[[Page 73816]]
(d) Notice. The Secretary shall notify, via the Department of
Commerce, the respondent (or respondent's agent for service of process
or attorney) of the initiation of administrative proceedings by
sending, via first class mail, facsimile, or by personal delivery, the
relevant documents.
(e) Time to answer. If the respondent wishes to contest the NOVA
and proposed order issued by the Secretary, the respondent must request
a hearing in writing within 15 days from the date of the NOVA. If the
respondent requests a hearing, the respondent must answer the NOVA
within 30 days from the date of the request for hearing. The request
for hearing and answer must be filed with the Administrative Law Judge
(ALJ), along with a copy of the NOVA and proposed order, and served on
the Office of Chief Counsel for Export Administration, Department of
Commerce, and any other address(es) specified in the NOVA, in
accordance with 15 CFR 719.8.
(f) Content of answer. The respondent's answer must be responsive
to the NOVA and proposed order, and must fully set forth the nature of
the respondent's defense(s). The answer must specifically admit or deny
each separate allegation in the NOVA; if the respondent is without
knowledge, the answer will so state and will operate as a denial.
Failure to deny or controvert a particular allegation will be deemed an
admission of that allegation. The answer must also set forth any
additional or new matter the respondent believes supports a defense or
claim of mitigation. Any defense or partial defense not specifically
set forth in the answer shall be deemed waived, and evidence thereon
may be refused, except for good cause shown.
(g) English required. The request for hearing, answer, and all
other papers and documentary evidence must be submitted in English.
(h) Waiver. The failure of the respondent to file a request for a
hearing and an answer within the times provided constitutes a waiver of
the respondent's right to appear and contest the allegations set forth
in the NOVA and proposed order. If no hearing is requested and no
answer is provided, the Secretary will sign the proposed order, which
shall, upon signature, become final and unappealable.
(i) Administrative procedures. The regulations that govern the
administrative procedures that apply when a hearing is requested are
set forth in the CWCR at 15 CFR part 719.
Sec. 103.8 Final agency decision after administrative proceedings.
(a) Review of initial decision.
(1) Petition for review. Any party may, within 7 days of the
Administrative Law Judge's (ALJ) certification of the initial decision
and order, petition the Secretary for review of the initial decision. A
petition for review shall be addressed to and served on the Executive
Director of the Office of the Legal Adviser, U.S. Department of State,
2201 C Street, N.W., Room 5519, Washington D.C. 20520, and shall also
be served on the Chief Counsel for Export Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W., Room
H-3839, Washington, D.C. 20230, and on the respondent. Petitions for
review may be filed only on one or more of the following grounds:
(i) That a necessary finding of fact is omitted, erroneous or not
supported by substantial evidence of record;
(ii) That a necessary legal conclusion or finding is contrary to
law;
(iii) That a prejudicial procedural error has occurred; or
(iv) That the decision or the extent of sanctions is arbitrary,
capricious or an abuse of discretion.
(2) Content of petition for review. The petition must specifically
set forth the grounds on which review is requested and be supported by
citations to the record, statutes, regulations, and principal
authorities.
(3) Decision to review. Review of the initial decision by the
Secretary is discretionary, and is not a matter of right. The Secretary
shall accept or decline review of the initial decision and order within
3 days after a petition for review is filed. If no such petition is
filed, the Secretary may, on his or her own initiative, notify the
parties within 10 days after the ALJ's certification of the initial
decision and order that he or she intends to exercise his or her
discretion to review the initial decision.
(4) Effect of decision to review. The initial decision is stayed
until further order of the Secretary upon a timely petition for review,
or upon action to review taken by the Secretary on his or her own
initiative.
(5) Review declined. If the Secretary declines to exercise
discretionary review, such order, and the resulting final agency
decision, will be served on all parties personally, by overnight mail,
or by registered or certified mail, return receipt requested. The
Secretary need not give reasons for declining review.
(6) Review accepted. If the Secretary grants a petition for review
or decides to review the initial decision on his or her own initiative,
he or she will issue an order confirming that acceptance and specifying
any issues to be briefed by all parties within 10 days after the order.
Briefing shall be limited to the issues specified in the order. Only
those issues specified in the order will be considered by the
Secretary. The parties may, within 5 days after the filing of any brief
of the issues, file and serve a reply to that brief. The Department of
Commerce shall review all written submissions, and, based on the
record, make a recommendation to the Secretary as to whether the ALJ's
initial decision should be modified or vacated. The Secretary will make
a final decision within 30 days after the ALJ's certification of the
initial decision and order.
(b) Final decision. Unless the Secretary, within 30 days after the
date of the ALJ's certification of the initial decision and order,
modifies or vacates the decision and order, with or without conditions,
the ALJ's initial decision and order shall become effective as the
final decision and order of the United States Government. If the
Secretary does modify or vacate the initial decision and order, that
decision and order of the Secretary shall become the final decision and
order of the United States Government. The final decision and order
shall be served on the parties and will be made available to the
public.
(c) Computation of time for the purposes of this section. In
computing any period of time prescribed or allowed by this section, the
day of the act, event, or default from which the designated period of
time begins to run is not included. The last day of the period is
computed to be included unless it is a Saturday, a Sunday, or a legal
holiday (as defined in Rule 6(a) of the Federal Rules of Civil
Procedure), in which case the period runs until the end of the next day
that is neither a Saturday, a Sunday, nor a legal holiday. Intermediate
Saturdays, Sundays, and legal holidays are excluded from the
computation when the period of time prescribed or allowed is 7 days or
less.
Sec. 103.9 Final agency decision after settlement negotiations.
(a) Settlements based on letter of intent to charge.--(1) Approval
of settlement. Pursuant to Sec. 719.5(b) of the CWCR (15 CFR parts 710
through 722), the Department of Commerce may notify a respondent by
letter of the intent to charge. If, following the issuance of such a
letter of intent to charge, the Department of Commerce and respondent
reach an agreement to settle a case, the Department of Commerce will
recommend the proposed settlement to the Secretary. If the
[[Page 73817]]
recommended settlement is in accordance with applicable law the
Secretary will approve and sign it. No action is required by the ALJ in
cases where the Secretary approves and signs such a settlement
agreement and order.
(2) Refusal to approve settlement. If the Secretary refuses to
approve the recommended settlement, the Secretary will notify the
parties and the case will proceed as though no settlement proposal had
been made.
(b) Settlements following issuance of a NOVA.--(1) Approval of
settlement. When the Department of Commerce and respondent reach an
agreement to settle a case after administrative proceedings have been
initiated before an ALJ, the Department of Commerce will recommend the
settlement to the Secretary of State. If the recommended settlement is
in accordance with applicable law, the Secretary will approve and sign
it. If the Secretary approves the settlement, the Secretary shall
notify the ALJ that the case is withdrawn from adjudication.
(2) Refusal to approve settlement. If the Secretary of State
refuses to approve the recommended settlement, the Secretary will
notify the parties of the disapproval, and the case will proceed as
though no settlement proposal had been made.
(c) Scope of settlement. Any respondent who agrees to an order
imposing any administrative sanction does so solely for the purpose of
resolving the claims in the administrative enforcement proceeding
brought pursuant to this part. This reflects the fact that the
Government officials involved have neither the authority nor the
responsibility for initiating, conducting, settling, or otherwise
disposing of criminal proceedings. That authority and responsibility is
vested in the Attorney General and the Department of Justice.
(d) Finality. Cases that are settled may not be reopened or
appealed.
Sec. 103.10 Appeals.
Any person adversely affected by a final order respecting an
assessment may, within 30 days after the final order is issued, file a
petition in the Court of Appeals for the District of Columbia Circuit
or for any other circuit in which the person resides or transacts
business, to appeal the order.
Sec. 103.11 Payment of final assessment.
(a) Time for payment. Full payment of the civil penalty must be
made within 30 days of the date upon which the final order becomes
effective, or within the time specified in the order. Payment shall be
made in the manner specified in the NOVA.
(b) Enforcement of order. The Secretary, through the Attorney
General, may file suit in an appropriate district court if necessary to
enforce compliance with a final order issued pursuant to this part.
This suit will include a claim for interest at current prevailing rates
from the date payment was due or ordered or, if an appeal was filed
pursuant to Sec. 103.10, from the date of final judgment.
(c) Offsets. The amount of any civil penalty imposed by a final
order may be deducted from any sum(s) owed by the United States to a
respondent.
Sec. 103.12 Reporting a violation.
If a person learns that a violation of the Convention, the CWCIA,
this part, or the CWCR (15 CFR parts 710 through 722) has occurred or
may occur, that person may notify: United States National Authority,
Office of Chemical and Biological Weapons Conventions, Bureau of Arms
Control, U.S. Department of State, Washington, DC 20520, Telephone:
(703) 235-1204 or toll-free (877) CWC-NACS ((877) 292-6227), Facsimile:
(703) 235-1065.
Avis Bohlen,
Assistant Secretary of State, Bureau of Arms Control.
[FR Doc. 99-33239 Filed 12-29-99; 8:45 am]
BILLING CODE 4710-27-P
