[Federal Register Volume 64, Number 139 (Wednesday, July 21, 1999)]
[Proposed Rules]
[Pages 39244-39249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17617]
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DEPARTMENT OF STATE
22 CFR Part 103
[Public Notice 3057]
RIN 1400-ZA01
Chemical Weapons Convention and the Chemical Weapons Convention
Implementation Act of 1998; Taking of Samples; Record Keeping and
Inspections
AGENCY: Bureau of Arms Control, Department of State.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of State is proposing to establish regulations
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.
DATES: Comments must be received on or before August 20, 1999.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to Michael Coffee, Office of the Legal Adviser (L/ACN), 2201
C Street, N.W., Washington, DC 20520.
FOR FURTHER INFORMATION CONTACT: Michael Coffee, Office of the Legal
Adviser (L/ACN), 2201 C Street, N.W., Washington, DC 20520.
SUPPLEMENTARY INFORMATION: On April 25, 1997, the United States
ratified 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). 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 an
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
[[Page 39245]]
engaging in activity prohibited by the Convention. The verification
regime includes declaration and on-site inspection of facilities
engaged in activities involving certain chemicals. To further its
nonproliferation objectives, the Convention requires restrictions on
the import and export of chemicals.
Implementation of the CWC requirements will occur pursuant to the
authority of the Chemical Weapons Convention Implementation Act of 1998
(Pub. L. 105-277, Div. I) and the International Emergency Economic
Powers Act. Export control related provisions will be enforced by the
Departments of State and Commerce under relevant export control
authorities. While most of the regulatory provisions will be contained
in the Chemical Weapons Convention Regulations (15 CFR Parts 710-721),
other State and Commerce Department regulations will contain additional
or related provisions. The following outline summarizes the scope of
these implementing and related regulations:
Chemical Weapons Convention Regulations (CWCR) (15 CFR Parts
710-721) (Department of Commerce). In accordance with the Chemical
Weapons Convention Implementation Act of 1998, the Department of
Commerce is proposing to promulgate regulations that set forth,
among other things, reporting and inspection requirements and trade
restrictions that affect U.S. private entities. The CWCR will
contain recordkeeping requirements and administrative procedures and
penalties related to violations of reporting and inspection
requirements and importation restrictions. Finally, the CWCR will
implement section 211 of the Chemical Weapons Convention
Implementation Act, which authorizes the revocation of the export
privileges of any person determined to have violated the chemical
weapons provision of 18 U.S.C. 229.
Regulations Implementing Provisions 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 Reporting and Inspections (22 CFR Part 103) (Department
of State). These regulations will implement the provisions of the
Convention and the Chemical Weapons Convention Implementation Act of
1998 concerning the taking of samples during on-site inspections in
the United States. These regulations will contain the enforcement
provisions for violations of the provisions of the Chemical Weapons
Convention Implementation Act of 1998 concerning reporting and
inspection requirements.
Export Administration Regulations (EAR) (15 CFR Parts 730-774)
(Department of Commerce). The EAR implement the Convention's
requirements on annual reporting on exports of schedule 1 chemicals,
advance notification of exports of schedule 1 chemicals, and end-use
certificate requirements for exports of schedule 2 and 3 chemicals
to States not Party to the Convention. The EAR include a license
requirement for all exports of schedule 1 chemicals subject to
Commerce Department jurisdiction to all destinations, including
Canada. The EAR also bans the export, after April 28, 2000, of
schedule 2 chemicals subject to Commerce Department jurisdiction to
States not Party to the Convention. International Traffic in Arms
Regulations (ITAR) (22 CFR Parts 120-130) (Department of State).
This proposed rule is intended to implement sections 304(f)(1) and 501
of the Chemical Weapons Convention Implementation Act of 1998, Pub. L.
105-277, Div. I. These regulations will 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.
Administrative Procedure Act Requirements
Because this proposed 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 is issuing this rule in proposed form and comments are
encouraged for the development of a final rule.
Form of Comments
The Department will not accept public comments accompanied by a
request that a part or all of the material be treated confidentially
for any reason. All public comments on these regulations will be a
matter of public record and will be available for public inspection and
copying. Comments will be available for inspection between 8:15 a.m.
and 5:00 p.m. at the address listed above. In the interest of accuracy
and completeness, the Department requires comments in written form.
Communications from agencies of the United States Government or foreign
governments will not be made available for public inspection.
Initial Regulatory Flexibility Analysis
Because this proposed rule involves a foreign affairs function of
the United States, the Department of State is not required to prepare
and make available for public comment an initial regulatory flexibility
analysis.
Executive Order 12866 Determination
This proposed 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 721; (2) to submit any report, notice or other information
prescribed by the Act or 15 CFR Parts 710 through 721; 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 721.
Notwithstanding any other provision of law, no person is required
to, nor shall any person be subject to a penalty for failure to comply
with a collection of 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 721,
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.
Comments are invited on (a) whether the collection of information
is necessary for the functions of the agency, including whether the
information shall have practical utility; (b) the accuracy of the
agency's estimate of the burden of the proposed collection of
information; (c) ways to enhance the quality, utility, and clarify the
information to be collected; and (d) ways to minimize the burden of the
collection of information on respondents, including through use of
automated collection techniques or other forms of information
technology. Send comments regarding these or any other aspects of the
collection of information to: Nancy Crowe, Regulatory Policy Division,
Bureau of Export Administration, U.S. Department of Commerce, Room
2705, 14th Street and Pennsylvania Avenue, N.W., Washington, DC 20230.
[[Page 39246]]
Unfunded Mandates Reform Act Requirements
No actions are necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Federalism Assessment
Because this proposed 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 proposes
to add 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 RECORD KEEPING AND INSPECTIONS
Subpart A--General
Sec.
103.1 Purpose.
103.2 Definitions.
Subpart B--Samples
103.3 Requirement to provide a sample.
Subpart C--Record Keeping and Inspection Requirements
103.4 General.
103.5 Violations.
103.6 Penalties.
103.7 Initiation of administrative enforcement procedures.
103.8 Final agency decisions 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.
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, Public Law
105-277, Div. I. The Chemical Weapons Convention Regulations
promulgated by the Department of Commerce, 15 CFR Parts 710 through
721, also implement sections of the Act.
Sec. 103.2 Definitions.
The following are definitions of terms as used in this part only.
Administrative law judge (ALJ). The person authorized to conduct
hearings in administrative enforcement proceedings brought under this
part.
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.
(Pub. L. 105-277, Div. I.)
CWCR. The Chemical Weapons Convention Regulations promulgated by
the Department of Commerce. (15 CFR parts 710 through 721.)
Executive Director. The Executive Director, Office of the Legal
Adviser, U.S. Department of State.
Facility agreement. An 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 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
accompanies the inspection team during a CWC inspection to which this
part applies.
Inspection team. The group of inspectors and inspection assistant
assigned by the Director-General of the 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 or leased by DOD, whether DOD-operated or
contractor-operated; the Department of Energy (DOE) for facilities
owned or leased by DOE, whether DOE-operated or contractor-operated,
including the National Laboratories and components of the nuclear
weapons complex; and the Department of Commerce (DOC) for all
facilities that are not owned or leased by DOD or 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 they own or lease.
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.
Party. The United States Department of State and any person named
as a respondent under this part.
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 Notice of
Violation and Assessment (NOVA) 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, 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.
[[Page 39247]]
Subpart B--Samples
Sec. 103.3 Requirement to provide a sample.
(a) Notification of requirement to provide a sample. The host team
leader will notify the owner or operator, occupant or agent in charge
of an inspected premises of any requirement to provide a sample
pursuant to a request, in accordance with paragraph (j) of this
section, of an inspection team of the Technical Secretariat under
paragraph (b) or (d) of this section.
(b) Requirement to provide a sample. Pursuant to section 304(f)(1)
of the CWCIA, unless a consultation occurs pursuant to paragraph (c) 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, in accordance with paragraph (j) 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.
(c) Consultations with the United States National Authority. After
consulting with the host team leader, a lead agency that finds that the
following conditions, unless they have been modified pursuant to
paragraph (i) of this section, 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 inspection team's
functions with the least possible inconvenience and disturbance to the
facility;
(3) The taking of samples is consistent with the applicable
facility agreement. In particular:
(i) Samples will be taken at sampling points agreed to in the
relevant facility agreement; and
(ii) Samples 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
721);
(5) The taking of samples 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 the sample does not pose a threat to the national
security interests of the United States; and
(7) The taking of the sample is consistent with any conditions
negotiated pursuant to paragraph (i) of this section.
(d) Determination by United States National Authority. If, after
consulting with the lead agency pursuant to paragraph (c) 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 the conditions of paragraph
(c) are satisfied and that a sample shall be required, then the owner
or 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.
(e) 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 individual present.
(f) 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.
(g) 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.
(h) 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 Sec. 103.5(a).
(i) 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. Samples taken during challenge inspections within
the inspected premises will be analyzed only for substances relevant to
the inspection mandate.
(j) 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.
Subpart C--Record Keeping 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 721) 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 to 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 721) 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 required by the
CWCIA or regulations thereunder, including information that is exempt
from disclosure under the Freedom of Information Act pursuant to
section 103(g) or section 404 of the CWCIA or Sec. 711.2 or Supplement
1 of Part 711 of 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 disrupted, delayed
or otherwise impeded an inspection authorized by the CWCIA, in
violation of Sec. 103.5 (a) of this part, shall pay a civil penalty in
an
[[Page 39248]]
amount not to exceed 9$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 required by the CWCIA or CWCR (15 CFR
parts 710 through 721), 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, in violation of Sec. 103.5 (b) of this part, shall pay a civil
penalty in an amount not to exceed $5,000 for each violation.
(b) Criminal penalties--Fine or imprisonment for refusal to permit
entry or inspection. 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 that knowingly violates the CWCIA 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. If the request is in
accordance with applicable law, the Secretary of State shall initiate
an administrative enforcement proceeding under 15 CFR 719.1(a)(2) by
providing notice of the initiation of proceedings through issuance of a
Notice of Violation and Assessment (NOVA), so long as the initiation of
such a proceeding is in accordance with applicable law. 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 the CWCR (15 CFR parts 710
through 721) 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 this section, and the
Department of Commerce 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.
(d) Notice of initiation of proceedings. 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 overnight mail, facsimile,
or by personal delivery, the NOVA and proposed order to the respondent
(or respondent's agent for service of process or attorney).
(e) Demand for hearing and answer. If the respondent wishes to
contest the NOVA and proposed order, the respondent must demand a
hearing in writing within 15 days from the date of the NOVA, and must
answer the NOVA within 30 days from the date of the demand for hearing.
(f) 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 or no answer
is provided, the Secretary will sign the proposed order, which shall,
upon signature, become a final and unappealable order.
(g) 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 decisions after administrative proceedings.
(a) Review of initial decision--(1) Petition for review. Any party
may, within 3 days of the Administrative Law Judge's (ALJ)
certification of the initial decision, petition the Secretary for
review of the initial decision. A petition for review shall be
addressed to and served on 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 all other parties. Petitions for review may be based only on
one or more of the following grounds:
(i) A finding of material fact is clearly erroneous based on the
evidence in the record;
(ii) A necessary legal conclusion is contrary to law or precedent;
(iii) A substantial and important question of law, policy, or
discretion is involved (including the amount of the civil penalty); or
(iv) A prejudicial procedural error has occurred.
(2) Content of petition for review. The petition must specifically
set forth the reason that review is requested and be supported by
citations to the record, statutes, regulations, and principal
authorities. Issues of fact or law not argued before the Administrative
Law Judge may not be raised on review unless they were raised for the
first time in the initial decision and could not reasonably have been
foreseen and raised by the parties during the hearing. New or
additional evidence that is not a part of the record before the ALJ
will not be considered.
(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 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
6 days after the ALJ's certification of the initial decision 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
[[Page 39249]]
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 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 12 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. No oral argument
will be permitted. 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 initial decision.
(b) Factors considered in assessing penalties. In reviewing the
amount of the civil penalty determined by the ALJ, the Secretary shall
take into account the nature, circumstances, extent and gravity of the
violation(s), and, with respect to the respondent, the respondent's
ability to pay the penalty, the effect on the respondent's ability to
continue to do business, the respondent's history of prior violations,
the respondent's degree of culpability, the existence of an internal
compliance program, and such other matters as justice may require.
(c) Final decision. Unless the Secretary, within 30 days after the
date 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.
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)(2) of the CWCR (15 CFR parts
710 through 721), 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
submit the draft NOVA, proposed order and a recommended settlement
agreement signed by a representative of the Department of Commerce and
respondent to the Secretary for approval and signature, if the
recommended settlement agreement is in accordance with applicable law.
No action is required by the ALJ in cases where the Secretary issues
such an order.
(2) Refusal to approve settlement. If the Secretary refuses to
approve the settlement, the Secretary will notify the parties and the
case will proceed as though no settlement proposal had been made.
(b) Settlements reached during administrative proceedings--(1)
Approval of settlement. When the Department of Commerce and respondent
reach an agreement to settle the allegations after administrative
proceedings have been initiated before an ALJ, the Department of
Commerce will submit the NOVA, the proposed order, and the recommended
settlement agreement signed by a representative of the Department of
Commerce and respondent to the Secretary of State for approval and
signature, if the recommended settlement agreement is in accordance
with applicable law. 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 settlement, the Secretary of State will notify
the parties of the disapproval, and settlement negotiations will resume
or the case will proceed to adjudication by the ALJ as though no
settlement proposal had been made. See CWCR at 15 CFR 719.19.
(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 order is issued, file a
petition in the Court of Appeals for the District of Columbia Circuit,
or in any other circuit in which the person resides or transacts
business, to appeal the order. No other reopening or appeal is
permitted.
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 30 days after a final order was issued or, if an appeal was filed
pursuant to Sec. 103.10 of this part, from the date of final judgment
of the court of appeals pursuant to Sec. 103.10 of this part.
(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,
or the CWCR (15 CFR parts 710 through 721) 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, Facsimile: (703) 235-1065.
J. Michael Lekson,
Deputy Assistant Secretary of State for Multilateral Conventional Arms
Control, Bureau of Arms Control.
[FR Doc. 99-17617 Filed 7-20-99; 8:45 am]
BILLING CODE 4710-27-P
