49–010

Calendar No. 385

109TH CONGRESS REPORT

2d Session " ! SENATE 109–226

U.S. ADDITIONAL PROTOCOL IMPLEMENTATION ACT

APRIL 3, 2006.—Ordered to be printed

Mr. LUGAR, from the Committee on Foreign Relations,

submitted the following

REPORT

[To accompany S. 2489]

The Committee on Foreign Relations, having had under consideration an original bill to implement the obligations of the United

States under the Protocol Additional to the Agreement Between the

United States of America and the International Atomic Energy

Agency for the Application of Safeguards in the United States of

America, with annexes, signed at Vienna June 12, 1998, reports favorably thereon and recommends that the bill do pass.

CONTENTS

Page

I. Purpose ........................................................................................................... 1

II. Committee Action .......................................................................................... 4

III. Summary ........................................................................................................ 4

IV. Cost Estimate of the CBO ............................................................................. 11

V. Regulatory Impact ......................................................................................... 12

VI. Appendix—Declassified Answers to Questions for the Record .................. 13

I. PURPOSE

The Protocol Additional to the Agreement Between the United

States of America and the International Atomic Energy Agency

(IAEA) for the Application of Safeguards in the United States of

America (the ‘‘Additional Protocol’’) supplements and amends the

verification arrangements set forth in the Agreement Between the

United States of America and the International Atomic Energy

Agency for the Application of Safeguards in the United States of

America of November 18, 1977 (the ‘‘Voluntary Offer’’), which entered into force, following Senate advice and consent, on December

9, 1980. The United States already allows safeguards to be placed

on certain facilities and materials under the Voluntary Offer, an

outgrowth of its strong support for the Treaty on the Non-Proliferation of Nuclear Weapons (the ‘‘Nuclear Nonproliferation Treaty’’ or

2

1 INFCIRC/540, available at http://www.iaea.org/Publications/Documents/Infcircs/1997/infcirc

540.pdf. 2http://www.iaea.org/OurWork/SV/Safeguards/sir_table.html.

‘‘NPT’’), which mandated safeguards on each non-nuclear-weapon

state’s declared peaceful nuclear energy facilities.

The Senate gave its advice and consent to ratification of the Additional Protocol on March 31, 2004. The United States has no obligation to accept safeguards on its nuclear materials and sites as a

nuclear-weapon state under Article I of the NPT. Likewise, it is not

bound to accept an Additional Protocol. Yet, as in the case of the

Voluntary Offer, the United States negotiated and signed an Additional Protocol with the IAEA, which incorporates the full text of

the Model Additional Protocol that non-nuclear weapon states

under Article II of the NPT are being asked to sign, ratify and implement.1 This underscores the U.S. commitment to combating the

spread of nuclear weapons and demonstrates that adherence to the

Model Additional Protocol will not place non-nuclear-weapon states

at any commercial disadvantage. The United States is the only nuclear-weapon state to accept the entire Model Additional Protocol;

however, the U.S. Additional Protocol allows the United States to

exclude activities or locations of direct national security significance in the United States (in Article 1.b of the U.S. Additional

Protocol) and gives it a right to use managed access to protect information of direct national security significance should inspections

be carried out in the United States (in Article 1.c). The Voluntary

Offer also contains a national security exclusion.

The Model Additional Protocol was designed to improve the ability of the IAEA to detect clandestine nuclear weapons programs in

non-nuclear-weapon states by providing the IAEA with increased

information about and expanded access to nuclear fuel-cycle activities and sites. As of March 2006, 75 countries have additional protocols in force.2 U.S. ratification and implementation of the Additional Protocol is intended to demonstrate to non-nuclear-weapon

states that the Additional Protocol will not adversely affect legitimate, transparent and peaceful nuclear energy development and

thus could reduce the risk of nuclear proliferation and improve

international confidence that non-nuclear-weapon states that are

parties to the NPT are not misusing nuclear materials to develop

nuclear weapons.

The Additional Protocol contains a number of provisions that require legislation to give them effect within the United States. Enactment of the Additional Protocol’s implementing legislation would

provide the Executive branch with authority to promulgate regulations that permit IAEA inspectors, accompanied by U.S. representatives, access to certain locations, facilities, activities, sites and information on activities in the United States. Until both the implementing legislation and the regulations are in force, the United

States will not ratify the Additional Protocol, despite its having received the Senate’s advice and consent to ratification in 2004. That

is because it is general U.S. treaty practice to not formally ratify

a treaty until the United States is in a position to fulfill the treaty

obligations. The implementing legislation will also establish civil

and criminal penalties for the failure of U.S. entities identified in

Article 2 of the Additional Protocol to keep or provide such inforVerDate 11-MAY-2000 17:25 Apr 03, 2006 Jkt 000000 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 MOORE.TXT SFORELA1 PsN: SFORELA1
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3 Committee on Foreign Relations, Report on Additional Protocol, S. Exec. Rpt. 108–12 (2004),

p. 111, hereinafter ‘‘Report.’’

mation under record-keeping requirements promulgated by U.S.

agency regulations.

The existing U.S. declaration to the IAEA under the Voluntary

Offer will need to be supplemented by additional information, to include:

• U.S. fuel-cycle research and development activities;

• Mining, processing and stockpiling of uranium ore, uranium

ore concentrate and other nuclear fuel materials;

• Some nuclear materials currently exempt from the Voluntary

Offer;

• Intermediate and high-level nuclear wastes;

• Manufacturing of certain materials and equipment;

• The import and export of specified materials and equipment;

• Applicable site and facility information; and,

• Agreed upon safeguards-related information.

Once the Additional Protocol enters into force, the United States

will be required to provide to the IAEA a declaration of nuclear

fuel cycle-related activities and, if necessary, to provide complementary access to the IAEA to allow that agency to verify the

completeness of the U.S. declaration. The implementing legislation

also sets forth procedures for inspections by the IAEA at U.S. locations under the Additional Protocol; these are patterned on the procedures mandated by Congress in 1998 for U.S. implementation of

the Chemical Weapons Convention. The legislation also establishes

civil and criminal penalties for willfully impeding a complementary

access authorized by this Act. Additionally, implementing legislation is necessary in order for the Nuclear Regulatory Commission

(NRC) to conduct training and trial inspections at its licensed commercial facilities.

Under the current U.S. safeguards agreement, the IAEA already

has the right to inspect certain facilities that the United States has

declared to it and are maintained on the U.S. Eligible Facilities

List. Under the terms of the Voluntary Offer, the United States

provides the IAEA with a list of eligible facilities (about 250) that

do not have direct national security significance. These include facilities licensed by the NRC and some license-exempt facilities of

the Department of Energy. Such inspection activities, have, since

1993, been ‘‘conducted at the request of the United States in order

to safeguard fissile material declared excess to our defense needs.’’ 3

The IAEA fully understands that the United States maintains the

right to engage in nuclear weapons activities and that there is little, therefore, for the IAEA to discover here. The Additional Protocol will not likely result in additional inspections in the United

States, but the United States must prepare for that possibility and

ensure protections for itself if the IAEA were to conduct such inspections.

The committee’s implementing legislation takes into account the

need to protect U.S. national security and to abide by the U.S. Constitution. In its consideration of Additional Protocol implementaVerDate 11-MAY-2000 17:25 Apr 03, 2006 Jkt 000000 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 MOORE.TXT SFORELA1 PsN: SFORELA1
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tion, the committee has also been guided by the desire to maintain

U.S. leadership in the global implementation of IAEA safeguards.

The committee finds that it is in the interest of the United States

to continue to demonstrate leadership in this area through ratification and appropriate implementation of the U.S. Additional Protocol and to that end has reported favorably its legislation to implement the Additional Protocol.

II. COMMITTEE ACTION

The Additional Protocol was referred to the committee on May

10, 2002.

The committee received testimony on the Additional Protocol at

a hearing on January 29, 2004. Witnesses for this hearing were:

the Honorable Linton F. Brooks, Administrator, National Nuclear

Security Administration; the Honorable Peter Lichtenbaum, Assistant Secretary of Commerce for Export Administration, U.S. Department of Commerce; Ms. Susan F. Burk, Acting Assistant Secretary

of State for Non-proliferation, U.S. Department of State; and, Mr.

Mark T. Esper, Deputy Assistant Secretary of Defense for Negotiations Policy, U.S. Department of Defense. The committee also requested and received statements from: the Nuclear Energy Institute; the Honorable Ronald F. Lehman, Director of the Center for

Global Security Research at Lawrence Livermore National Laboratory and former Director of the Arms Control and Disarmament

Agency; and Ambassador Norman A. Wulf, former Special Representative of the President for Nuclear Non-proliferation.

At a business meeting on March 4, 2004, the committee considered a draft resolution of ratification including 2 conditions and 8

understandings. After discussion and debate, the resolution was

approved by a vote of 19 in favor and 0 against.

On March 26, 2004, the committee reported favorably its resolution of advice and consent to the full Senate. On March 31, 2004,

the Senate gave its advice and consent to ratification of the Additional Protocol by division vote.

On December 9, 2003, Chairman Lugar introduced S. 1987, the

Additional Protocol to the U.S.-IAEA Safeguards Agreement Implementation Act, which was referred to the committee. S. 1987 was

drafted by the administration and introduced at its request.

Since then, committee staff engaged with executive branch agencies and other Senate committees to craft the implementing legislation the committee now reports to the Senate.

At a business meeting on March 14, 2006, by a voice vote, the

committee ordered the bill reported.

III. SUMMARY

The U.S. Additional Protocol Implementation Act (‘‘the Act’’) consists of six titles that provide authority to implement the Additional Protocol, provide an appropriate process for implementation

of IAEA complementary access, ensure protection of U.S. national

security and business information, and authorize appropriations to

carry out the agreement.

In evaluating the implementing legislation for the Additional

Protocol, the committee paid particular attention to past legislation

5

4 Chemical Weapons Convention Implementation Act of 1998, 22 USC 6701 note, Division I

of Public Law 105–277.

adopted by Congress to implement the Chemical Weapons Convention (CWC) in the CWC Implementation Act of 1998. 4 Where and

when they were appropriate or applicable, the committee included

like provisions in its Additional Protocol implementing legislation.

Sections 1, 2 and 3 of the bill set forth the short title, provide

definitions and a severability provision. The severability provision

states that if any provision of the Act is held invalid, the remainder

of the Act shall remain in force. The committee believes that the

Additional Protocol and the Act are fully consistent with the U.S.

Constitution, but has included this section as a matter of prudence.

Title I provides specific authority for the President to implement

and carry out the Act and the Additional Protocol through directing

the issuance of necessary regulations (principally by the NRC and

the Department of Commerce (DOC)). Title II authorizes complementary access at U.S. locations consistent with the Act, and establishes the terms upon which such access may take place. Title

III restricts disclosure under the Freedom of Information Act of information acquired pursuant to the Act or the Additional Protocol.

Title IV makes it illegal for entities willfully to fail to report information required by regulations pursuant to the Act and provides

for criminal and civil penalties for violations. Title V sets forth congressional notification and presidential determination requirements

regarding environmental sampling. Finally, Title VI authorizes the

appropriation of funds to carry out the Act.

TITLE I—GENERAL PROVISIONS

Title I authorizes the President to implement and carry out the

provisions of the Act and the Additional Protocol. This is to be accomplished through an Executive order designating Agencies to

promulgate regulations requiring, inter alia, submission to the

United States Government of information specified under Article 2

of the Additional Protocol. This information is necessary for the

United States to fulfill its obligation to provide the IAEA with a

declaration of its civil nuclear and nuclear-related activities.

TITLE II—COMPLEMENTARY ACCESS

Title II sets forth the terms under which complementary access

may occur in the United States. Section 201 of the Act states that

the IAEA may not conduct complementary access in the United

States without the authorization, in accordance with the Act, of the

U. S. Government. It further directs that the Environmental Protection Agency, the Occupational Safety and Health Administration, and the Mine Safety and Health Administration may not participate in complementary access. These agencies are excluded because their employees may detect violations of laws and regulations

unrelated to the Additional Protocol. Section 201 further requires

the number of U.S. representatives accompanying any IAEA inspectors to be kept to a minimum. Section 202 addresses procedures for complementary access. Section 202(b) sets forth the requirement for the United States Government to provide actual

written notice of a complementary access request, as soon as posVerDate 11-MAY-2000 17:25 Apr 03, 2006 Jkt 000000 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 MOORE.TXT SFORELA1 PsN: SFORELA1
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sible, to the owner, operator, occupant or agent in charge of the location to be inspected. The notice must contain the purpose of the

access request, the basis for selection of the location, the activities

that will be carried out, the time and duration of the access, and

the identities of the inspectors. Section 202(b)(4) requires a separate notice each time that complementary access is sought. Section

202(c) requires IAEA and U.S. personnel participating in the complementary access to show their credentials prior to gaining entry

to the inspected location.

Section 202(d)(1) states that IAEA inspectors, during complementary access, may generally conduct activities specified under Article

6 of the Additional Protocol for the types of locations being inspected. There are several exceptions. First section 202(d)(1) recognizes that the United States Government has certain rights under

the Additional Protocol to limit such access. In addition to its right

under Article 1.b of the Protocol to deny the IAEA access to activities with direct national security significance or to locations or information associated with such activities, the United States may,

under Article 1.c of the Protocol, manage access in connection with

such activities, locations or information. These rights are unilateral

and absolute; they are not subject to challenge by or negotiation

with the IAEA. Furthermore, Article 7 of the Additional Protocol

provides for managed access to other locations, under arrangements with the IAEA, to prevent the dissemination of proliferation

sensitive information, to meet safety or physical protection requirements, or to protect proprietary or commercially sensitive information. Second, Section 202(d)(2) lists a series of items that are specifically excluded, from IAEA access. These exceptions, which are

directed mainly at protecting business information, may not be enforced, however, if the Additional Protocol requires such disclosure.

Section 202(e) requires that all persons participating in complementary access, including U.S. representatives, observe all environmental, health, safety and security regulations applicable for

the inspected location.

Section 203 provides the legal framework for IAEA inspectors to

gain complementary access to U.S. locations under the Additional

Protocol. Section 203(a) sets forth three procedures for gaining such

access: in cases in which the consent of the owner, operator, occupant or agent in charge of the locations to be inspected under complementary access has been obtained; in cases in which such consent is not obtained and where an administrative search warrant

would then be required; and in cases in which expedited access is

required.

The Additional Protocol provides for IAEA complementary access

to a U.S.-declared location in the United States in some cases if the

IAEA requests so with advance notice of less than two hours in ‘‘exceptional circumstances’’ (Article 4.b (ii)). The committee has included an expedited access procedure in Section 203(a)(2) that

makes clear that in such circumstances no warrant or consent

would be required to gain entry, ‘‘to the extent such access is consistent with the Fourth Amendment.’’

The remainder of Section 203 addresses the requirements for obtaining an administrative search warrant and what such a warrant

must contain. Section 203(b)(1) states that the United States GovVerDate 11-MAY-2000 17:25 Apr 03, 2006 Jkt 000000 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 MOORE.TXT SFORELA1 PsN: SFORELA1
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ernment shall provide to a judge of the United States (defined in

section 2(7) of the Act as a United States district judge, or a United

States magistrate judge appointed under the authority of chapter

43 of title 28, United States Code) all appropriate information regarding the basis for selecting a particular location for complementary access. Section 203(b)(2) requires the United States to submit

to the judge an affidavit in obtaining administrative search warrants stating, among other things, that the Additional Protocol is

in force in the United States, the Protocol’s applicability to the location to be inspected, and that the complementary access requested is consistent with the provisions of the Additional Protocol,

including Article 4 regarding the purpose of the access and Article

6 regarding its scope. The affidavit must also indicate: ‘‘the items,

documents, and areas to be searched and seized’’; the anticipated

time and duration of the inspection; and either that the location to

which entry in connection with complementary access is sought

was selected because of probable cause that information was not

correctly and fully reported as required pursuant to regulations

promulgated under the Act, and that the location to be inspected

contains evidence of such violation, or that the location was selected pursuant to a reasonable general administrative plan based

on specific neutral criteria.

Section 204 makes it unlawful for any person willfully to fail or

refuse to permit, or to disrupt, delay, or otherwise impede, a complementary access authorized by this Act or an entry in connection

with such access. The committee views this provision as a logical

corollary to the rest of this Title, which creates clear obligations

that the U.S. Government must satisfy before a complementary access may proceed. A similar offense was created by the CWC Implementation Act.

TITLE III—CONFIDENTIALITY OF INFORMATION

Title III of the implementing legislation exempts from the Freedom of Information Act (FOIA) disclosure of information obtained

by the United States Government in implementing the provisions

of the Additional Protocol. Thus, information reported to the U.S.

Government by entities covered by Article 2 of the Additional Protocol, as required by regulation, is not subject to release under the

FOIA.

TITLE IV—ENFORCEMENT

Section 401 of the proposed Act prohibits the willful failure or refusal of any person to maintain records or submit reports to the

United States Government as required by regulations issued under

Title I of the Act, or to permit access to or copying of such records

by the United States Government.

Section 402(a) provides for civil penalties that may be assessed

in the event of violations of section 204 or section 401 of the Act.

The procedure established by section 402 for assessing a civil penalty includes: notice by an authorized executive agency to the person being penalized; a hearing before an administrative judge, if requested within 15 days after receiving the notice; factors to be

taken into account in assessing penalties; review by a U.S. Court

of Appeals, if requested within 30 days after a final order is issued;

8

and, if necessary, civil action in a district court to enforce a final

order. In any such civil action, the validity and appropriateness of

the final order shall not be subject to review. Civil penalties shall

not exceed $25,000 for each violation. Each day during which a violation of section 204 continues shall constitute a separate violation

of that statute.

Section 402(b) provides that in addition to, or in lieu of, civil penalties under section 402(a), a person who violates section 204 or

section 401 of the Act may be fined under title 18, United States

Code, imprisoned for not more than five years, or both.

The prohibitions of Title IV are necessary to implement the Additional Protocol, as the United States is dependent on the reporting

it receives and on the cooperation of facility owners or operators to

meet its treaty obligations.

TITLE V—ENVIRONMENTAL SAMPLING

In its work on the Additional Protocol and its implementing legislation, the committee has devoted particular attention to the

issue of environmental sampling, both location-specific and widearea, under the complementary access provisions of the Additional

Protocol. The committee asked a number of questions, both as a

part of its formal record of decision on the Additional Protocol and

in meetings with executive branch officials, regarding the use of

this sampling technique as a safeguards verification tool. The administration’s unclassified answers to the committee’s questions for

the record, originally provided during consideration of the Additional Protocol itself and published in Executive Report 108–12,

were later supplemented by declassified answers to four questions,

which are reproduced later in this report.

The committee noted in its report on the Additional Protocol that

were any potential national security concerns to arise with regard

to the use of environmental sampling in the United States, the national security exclusion would apply. This view was supported by

the letter sent on April 30, 2002, by then-U.S. Ambassador to the

IAEA Kenneth C. Brill to the Director General of the IAEA, in

which the United States stated its interpretation of certain provisions in the Additional Protocol. This letter was incorporated by

reference as Understanding (1) of the Senate-approved resolution of

ratification. Committee staff also confirmed with the IAEA that it

does not dispute with the United States any of the interpretations

set forth in the Brill letter.

There are two types of environmental sampling under the Additional Protocol, location-specific and wide-area. Article 6 of the Protocol authorizes the Agency to carry out collection of location-specific environmental samples in any complementary access. Article

5 of the Protocol specifies the locations to which the IAEA may

have access in the United States, subject to the managed access

provision and the national security exclusion of Article 1 or the

managed access provisions of Article 7, and the purposes for such

access.

In answer to a committee question for the record, the administration summarized the relevance of location-specific environmental

sampling to IAEA inspections:

9

5See Appendix, p.14. 6 Ibid.

The IAEA conducts environmental sampling, inter alia,

to characterize the composition of material found in the

environment at a location. This measure is employed to detect the presence of undeclared nuclear activities at a location. This data provides information on the history of nuclear material processing activities at the location or of

materials that have been received or otherwise deposited

at the location. 5

IAEA inspections in North Korea and Iran have made notable

use of location-specific environmental sampling (more commonly

known as ‘‘swipes’’) to determine whether country declarations regarding nuclear activities (including possible uranium enrichment

or spent fuel reprocessing) were accurate. The very qualities that

make such sampling useful in a non-nuclear-weapons state may

present a dilemma, however, for a recognized nuclear-weapons

state under the NPT. As the administration went on to explain:

Environmental sampling provides information about the

material present at a given location from current and past

operations, including the materials’ isotopic ratios. It also

can be used to determine whether, and to a certain extent

how, a facility is processing or enriching uranium, or producing/separating plutonium, other actinides or tritium, or

other materials. Furthermore, to varying degrees depending upon the type of sample material, it can be used to determine the approximate date of these activities. If used at

locations where relevant environmental signatures are

present, it could reveal information of direct national security significance to the United States. It is also essential

to the success of the IAEA in its safeguards mission that

it is able to detect and discover undeclared activity using

such methods in non-nuclear weapon states.6

Under the national security exclusion in Article 1 of the Protocol,

the United States has the right to exclude from the Article 2 declarations any locations that it determines would result in IAEA access to activities with direct national security significance or to locations or information associated with such activities. Complementary access under Articles 5.a(i), 5.a(ii), 5.a(iii) and 5.b is limited

to those locations identified by the United States in its declarations

under Article 2. The IAEA could seek access to other locations

under Article 5.c, but the United States will invoke the national security exclusion and deny access if it determines that such access

would result in access by the IAEA to activities with direct national security significance or to locations or information associated

with such activities.

Under Article 9 of the Additional Protocol, the United States

shall provide the IAEA with access to locations specified by the

IAEA to carry out wide-area environmental sampling, provided

that if the United States is unable to provide such access, it shall

make every reasonable effort to satisfy IAEA requirements at alternative locations. Article 9 further provides that the IAEA shall not

10

7 Report, p. 24.

seek such access until the use of wide-area environmental sampling

and the procedural arrangements therefore have been approved by

the IAEA’s Board of Governors and only following consultations between the IAEA and the United States. Such arrangements have

not been brought before or approved by the Board. The United

States has informed the IAEA that even if such arrangements were

approved, the United States does not foresee circumstances in

which the IAEA would need to propose to conduct wide-area environmental sampling in this country.

With regard to environmental sampling, the Brill letter stated:

Should the use of wide-area environmental sampling be

approved by the IAEA Board of Governors in accordance

with Article 9, the United States does not foresee circumstances in which the IAEA would need to propose to

conduct wide-area environmental sampling in the United

States.

In accordance with the NSE, the United States will not

allow location-specific environmental sampling with respect to locations, information, and activities of direct national security significance to the Untied States. In this regard, the United States intends to use the NSE with regard to location-specific environmental sampling at any

current or former nuclear weapon production complex

site. 7

The IAEA Board of Governors has not taken a decision to approve the use of wide-area environmental sampling techniques for

use in its verification activities, and may not do so for quite some

time, if ever, because the technology associated with such sampling

has not yet fully developed for use in an accurate and cost-effective

manner in those activities. It is highly unlikely, moreover, that

sampling of this kind would be used in the United States to detect

undeclared nuclear activities. The IAEA does not have the resources to conduct such activities in the United States in connection with its Additional Protocol and, in any case, since the United

States is a lawful nuclear weapon state, would not need to do so.

Nevertheless, the United States has accepted all of the text of the

Additional Protocol, with the only addition being its national security rights in Article 1. Fundamentally then, the committee is faced

with the need to balance U.S. national security concerns with its

leadership and support for the best IAEA verification techniques

possible in non-nuclear weapon states by demonstrating its willingness, under appropriate measures, to incorporate environmental

sampling into the U.S. compliance regime under the Additional

Protocol.

The committee doubts that the IAEA will ever have reason to use

environmental sampling, either location-specific or wide-area sampling, to verify U.S. compliance with its Additional Protocol. The

committee notes that the Brill letter states a definitive U.S. position on the use of the national security exclusion in connection with

location-specific environmental sampling, and the committee supports that position.

11

8See Appendix, p. 15.

The Brill letter does not state a definitive U.S. position regarding

wide-area sampling. Indeed, the United States has conducted environmental sampling and provided the IAEA with information regarding testing of such sampling in cooperation with the Department of Energy and the National Laboratories for the important

purpose of providing assistance to the IAEA to enhance its

verification activities and safeguards technologies. In answer to a

committee question for the record, the administration noted that

‘‘wide-area environmental sampling was tested by the United

States in advance of it being proposed as a measure for use by the

IAEA.’’ 8 Activities that support the IAEA, such as cooperation with

the National Laboratories, are distinctly different from actual use

of the same technologies in the United States by the IAEA for safeguards verification under the Additional Protocol.

Title V of the committee’s implementing legislation is drafted to

meet the requirements of U.S. national security, Congressional

oversight, and U.S. leadership on nonproliferation. It does not prevent the use of wide-area or other environmental sampling, but

would provide a statutory procedure involving Congress.

Section 501 creates a reporting requirement that not later than

30 days after the IAEA Board of Governors approves wide-area

sampling for use as a safeguards tool the President shall notify the

appropriate congressional committees of that decision. While it is

likely that the committee would know in any case of such a decision, the committee intends, as required by subsection 501(b), that

the notification from the President would include a detailed discussion of the measures approved by the Board of Governors and

whether they may be used in the United States.

Sections 502 and 503 require reporting and certain certifications

to Congress prior to the use in the United States of wide-area or

location-specific environmental sampling. Nothing in these sections

prevents compliance with a U.S. obligation. The committee was informed during its consideration of the Additional Protocol itself

that a National Security Presidential Directive would be issued to

guide use of the national security exclusion in connection with the

Additional Protocol. Noting the importance of Congressional involvement in such decisions, the committee included sections 502

and 503 for the unlikely circumstance in which the President did

not apply the exclusion to environmental sampling. The committee

does not intend that this Title should encourage the use of such

sampling in the United States or discourage the use of the national

security exclusion, as appropriate, to deny the IAEA such access.

IV. COST ESTIMATE OF THE CONGRESSIONAL BUDGET OFFICE

Rule XXVI, paragraph 11(a) of the Standing Rules of the Senate

requires that committee reports on bills or joint resolutions contain

a cost estimate for such legislation in the fiscal year it is reported

and in each of the following 5 years; however, the CBO estimate

was not available at the time of publication of this report. The

Chairman will seek consent to insert it into the Congressional

Record when it is provided to the committee.

12

9 Report, p. 113.

V. REGULATORY IMPACT

During its consideration of advice and consent to the ratification

of the Additional Protocol itself, and in compliance with paragraph

11(b) of Rule XXVI of the Standing Rules of the Senate, the committee inquired of the executive branch regarding what regulatory

changes were envisioned for the Additional Protocol. The administration responded that:

Draft regulations are being prepared by both NRC and

DOC as part of their preparations for implementation. Before the rules can be published, the information collection

forms must be approved by OMB and other regulatory requirements must be satisfied, (e.g., the Paperwork Reduction Act). This approval process cannot be performed before the treaty has been ratified and legislation is enacted.

DOC’s proposed rule must be published in the Federal

Register and will request public comments before a final

rule is issued. It is expected to take less than a year from

assignment of implementing responsibility by the President to NRC and DOC until the new rules are published

for implementation. The regulatory changes necessary are

those that establish the requirement for entities not identified on the Eligible Facilities List to report information

and to provide access to the IAEA at the covered location.

The Presidential assignment of responsibilities that follows

upon the authority provided to him in the implementing

legislation provides NRC and DOC the authority to implement their respective responsibilities.9

(13)

APPENDIX

DECLASSIFIED ANSWERS TO

QUESTIONS FOR THE RECORD

UNITED STATES DEPARTMENT OF STATE,

WASHINGTON, D.C. 20520,

September 7, 2004.

Hon. RICHARD G. LUGAR, Chairman,

Committee on Foreign Relations,

U.S. Senate.

DEAR MR. CHAIRMAN. In response to a request from a member

of your committee’s staff, we are enclosing a copy of unclassified

administration responses to several of the committee’s questions for

the record regarding the U.S.-IAEA Additional Protocol. Classified

answers to the same questions were provided to the committee in

February 2004. Please allow the Department of State to take this

opportunity to express appreciation for the Senate’s prompt and favorable consideration of the Protocol.

Please let us know if we can be of further assistance.

Sincerely,

PAUL V. KELLY,

Assistant Secretary Legislative Affairs

Enclosure:

As stated.

14

UNCLASSIFIED ANSWERS TO QFRS 15-18, DEALING WITH

ENVIRONMENTAL SAMPLING

Question (15). Ambassador Brill’s letter states that ‘‘the United

States intends to use the NSE [the ‘National Security Exclusion’

provided by Article 1.b of the Additional Protocol] with regard to

location-specific environmental sampling at any current or former

nuclear weapon production complex site.’’ What are the capabilities

of such sampling, as used by the IAEA, and why do they make it

unwise to permit any and all such sampling at any current or

former nuclear weapon production complex sites, as opposed to a

case-by-case consideration of requests to permit such sampling? In

open form if possible, but in classified form if necessary, could the

administration clarify its policy with respect to the use of sampling

techniques, to include environmental sampling, to clarify the risks

associated with each type of sampling technique for U.S. national

security or business proprietary information?

Answer (15). The IAEA conducts environmental sampling, inter

alia, to characterize the composition of material found in the environment at a location. This measure is employed to detect the presence of undeclared nuclear activities at a location. This data provides information on the history of nuclear material processing activities at the location or of materials that have been received or

otherwise deposited at the location.

Environmental sampling provides information about the material

present at a given location from current and past operations, including the materials’ isotopic ratios. It also can be used to determine whether, and to a certain extent how, a facility is processing

or enriching uranium, or producing/separating plutonium, other

actinides or tritium, or other materials. Furthermore, to varying

degrees depending upon the type of sample material, it can be used

to determine the approximate date of these activities. If used at locations where relevant environmental signatures are present, it

could reveal information of direct national security significance to

the United States. It is also essential to the success of the IAEA

in its safeguards mission that it is able to detect and discover

undeclared activity using such methods in non-nuclear weapon

states.

In accordance with Article I, the United States will prohibit environmental sampling or any other activity by the IAEA wherever

necessary. A U.S. decision to invoke the National Security Exclusion is not subject to challenge by the IAEA, nor need the U.S. provide the Agency any explanation for its decision. The administration has already informed the IAEA that the United States intends

to use the NSE with regard to location-specific environmental sampling at any current or former nuclear weapon production complex

site. Environmental sampling may also be excluded at other locations in accordance with the terms of the National Security Exclusion. In addition, at locations not covered by the National Security

Exclusion, the U.S. may invoke the managed access provisions of

Article 7 of the Additional Protocol to offer alternatives to the use

of environmental sampling. Such alternatives may be offered in

order to prevent the dissemination of proliferation sensitive inforVerDate 11-MAY-2000 17:25 Apr 03, 2006 Jkt 000000 PO 00000 Frm 00014 Fmt 6602 Sfmt 6602 MOORE.TXT SFORELA1 PsN: SFORELA1
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mation, to meet safety or physical protection requirements, or to

protect proprietary or commercially sensitive information.

Question (16). Ambassador Brill’s letter states that ‘‘the United

States does not foresee circumstances in which the IAEA would

need to propose to conduct wide-area environmental sampling in

the United States’’ pursuant to Article 9 of the Additional Protocol.

Could the administration clarify its understanding of what the impact of this statement is expected to be, since it is not accompanied

by any warning that the United States will invoke Article 1.b (the

National Security Exclusion) to deny permission to conduct such

sampling?

Answer (16). Under Article 9, the United States shall provide the

Agency with access to locations specified by the Agency to carry out

wide-area environmental sampling, provided that, if the United

States is unable to provide such access, it shall make every reasonable effort to satisfy Agency requirements at alternative locations.

Article 9 further provides that the Agency shall not seek such access until the use of wide-area environmental sampling and the

procedural arrangements therefore have been approved by the

Agency’s Board of Governors and following consultations between

the Agency and the United States. Such arrangements have not

been brought before or approved by the Board. The United States

has informed the Agency that even if such arrangements were approved, the United States does not foresee circumstances in which

the Agency would need to propose to conduct wide-area environmental sampling. If wide-area sampling is eventually approved by

the Board of Governors, its use in the United States requires consultations between the IAEA and the United States. Given the requirement for consultation and therefore U.S. agreement, the

United States did not feel it necessary to make a direct reference

to Article 1.b.

Question (17). When does the administration expect a definitive

decision from the IAEA Board of Governors regarding the use of

wide-area environmental sampling and the procedural arrangements for its use in the United States pursuant to Article 9 of the

Additional Protocol? Is the administration seeking such a decision?

For locations co-located with locations that are not of direct national security significance in the United States, yet which do contain information or activities of direct national security significance, what specific procedural arrangements would the United

States seek to create regarding the use of wide-area environmental

sampling? Would these specific arrangements need to go beyond

the right of managed access contained in Article 1.c? Why did the

United States not seek a more definitive provision with respect to

wide-area environmental sampling during negotiations on the Additional Protocol?

Answer (17). The United States strongly supported including

wide-area environmental sampling as a potential measure under

the Protocol because wide-area sampling, if it becomes practical,

has the potential to detect undeclared nuclear activities throughout

a state. However, while wide-area environmental sampling was

tested by the United States in advance of it being proposed as a

measure for use by the IAEA, the technique has not yet been demVerDate 11-MAY-2000 17:25 Apr 03, 2006 Jkt 000000 PO 00000 Frm 00015 Fmt 6602 Sfmt 6602 MOORE.TXT SFORELA1 PsN: SFORELA1
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onstrated to be technically feasible or cost-effective as a safeguards

measure. Neither the IAEA nor the Board of Governors has established a timeline for taking a decision in favor of using wide-area

environmental sampling as a safeguards measure under the Additional Protocol. The United States has not pressed for either the

Agency or the Board of Governors to take such a decision.

This situation is unlikely to change unless and until sampling

and analysis technology improve significantly. If technical improvements and falling costs eventually make wide-area environmental

sampling a useful safeguards measure, the Board of Governors will

likely consider approving the technique. The United States will decide at that time whether to support the use of the measure, based

on its ability to contribute to the effectiveness of safeguards. If

wide-area sampling is eventually approved by the Board of Governors, its use in the United States requires consultations between

the IAEA and the United States.

The United States legitimately possesses undeclared nuclear activities, many with publicly acknowledged locations, and there is no

nonproliferation purpose served by searching for undeclared activities within the United States. Furthermore, the United States has

obligations both under its own laws and regulations and in the first

article of the Non-Proliferation Treaty to prohibit the release of nuclear weapons information.

The national security exclusion included in Article 1.b and 1.c of

the Additional Protocol is sufficient to allow us to prevent disclosure of activities and information of direct national security significance to the United States.

Question (18). Are there any formal or informal understandings

with the IAEA with regard to the use of wide-area environmental

sampling in the United States? What are the expected capabilities

of IAEA wide-area environmental sampling, and what potential

risks for U.S. locations result from those capabilities? Has the

interagency conducted an analysis of the likely impacts of widearea environmental sampling for the United States, including any

national security implications for U.S. locations? If so, please submit this analysis to the committee.

Answer (18). There are no formal or informal understandings

with the IAEA with regard to the use of wide-area environmental

sampling in the United States. Because wide-area environmental

sampling is not yet a practical technology for safeguards applications, the technologies that might be used by the IAEA and their

capabilities are not defined.

The United States does not foresee circumstances in which the

IAEA would need to propose to conduct wide-area environmental

sampling in the United States. In accordance with the National Security Exclusion, the United States will prohibit environmental

sampling by the IAEA wherever necessary.

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