29–115

108TH CONGRESS EXEC. RPT.

2d Session " ! SENATE 108–12

THE PROTOCOL TO THE AGREEMENT OF THE INTERNATIONAL ATOMIC ENERGY AGENCY REGARDING SAFEGUARDS IN THE UNITED STATES (TREATY DOC. 107–7)

MARCH 26, 2004.—Ordered to be printed

Mr. LUGAR, from the Committee on Foreign Relations,

submitted the following

REPORT

[To accompany Treaty Doc. 107–7]

The Committee on Foreign Relations, to which was referred the

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’’ or ‘‘U.S. Additional Protocol’’)

(Treaty Doc. 107–7), having considered the same, reports favorably

thereon subject to the two conditions and eight understandings set

forth in this report and the accompanying resolution of ratification

and recommends that the Senate give its advice and consent to

ratification thereof.

CONTENTS

Page

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

II. Background .................................................................................................... 4

III. Summary of the Protocol ............................................................................... 6

IV. Article-by-Article Analysis ............................................................................ 7

V. Committee Action .......................................................................................... 16

VI. Views of the Armed Services Committee ..................................................... 35

VII. CBO Cost Estimate ........................................................................................ 40

VIII. Resolution of Ratification .............................................................................. 51

IX. Hearing and Questions for the Record (Contains Administration and

Other Experts’ Views) ................................................................................ 55

I. PURPOSE

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 supplements and amends the verification arrangements set forth in

2

1 U.S. Congress, Senate Committee on Foreign Relations, September 26, 1968, Treaty on the

Non-proliferation of Nuclear Weapons, 90th Congress, 2d Session, Executive Report No. 9, p. 2.

Hereinafter, ‘‘Committee Report.’’ 2 ‘‘Treaty on the Non-proliferation of Nuclear Weapons,’’ the International Atomic Energy

Agency, INFCIRC/140, April 22, 1970, available at http://www.iaea.org/Publications/Documents/

Infcircs/Others/infcirc140.pdf. 3 Committee Report, p. 14.

the existing Agreement Between the United States of America and

the IAEA 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 Voluntary Offer was, in turn, an outgrowth of the

Treaty on the Non-Proliferation of Nuclear Weapons (the ‘‘Nuclear

Nonproliferation Treaty’’ or ‘‘NPT’’), which mandated safeguards on

each country’s declared peaceful nuclear energy facilities.

When the Senate Foreign Relations Committee reported the NPT

resolution of ratification to the Senate in 1968, it noted that, ‘‘given

[the] burgeoning capability of so many nations to build nuclear

weapons...U.S. efforts to curtail the spread of nuclear weapons and

skills have become increasingly more serious and urgent.’’ 1 One of

the bargains that was struck in the NPT to gain the support of

many states, especially those without nuclear weapons, was that in

forgoing nuclear weapons, non-nuclear-weapon states (NNWS)

would be guaranteed access to the peaceful uses of atomic energy.

Thus, Article IV of the NPT states:

Nothing in this Treaty shall be interpreted as affecting

the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for

peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty. 2

The Foreign Relations Committee was mindful of the likely limitations of safeguards agreements at the time it reported the NPT

to the full Senate. The Committee noted:

[T]he implementation of the treaty raises uncertainties.

The reliability and thereby the credibility of international

safeguards systems is still to be determined. No completely

satisfactory answer was given to the Committee on the effectiveness of the safeguards systems envisioned under the

the treaty. . . . But [the Committee] is equally convinced

that when the possible problems in reaching satisfactory

safeguards agreements are carefully weighed against the

potential for a worldwide mandatory safeguards system,

the comparison argues strongly for the present language of

the treaty. 3

The NPT and the IAEA’s existing safeguards agreements sufficed

to forestall nuclear weapons programs in the world’s advanced industrial states, several of which were weighing the nuclear option

40 years ago. This regime has failed to keep pace, however, with

the increase in the global availability of nuclear weapons technology, especially the technology and equipment for uranium enrichment and spent nuclear reactor fuel reprocessing to produce the

fissile material for such weapons. Now the road to nuclear weapons

can be traveled by determined countries with only a minimal inVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
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4Dr. Ronald F. Lehman, ‘‘Written Statement on the U.S.–IAEA Additional Protocol and its

Strategic Content, Submitted to the U.S. Senate Foreign Relations Committee,’’ see Part IX of

this Report, p. 98. (Hereinafter, ‘‘Part IX.’’) 5 Answer to Committee Question for the Record, Part IX, p. 111.

dustrial base. While the number of recognized nuclear-weapon

states (NWS) has not dramatically increased over the years, the

dangers of proliferation have become all too real and apparent.

Many are now questioning the grand bargain between non-proliferation and peaceful uses of nuclear energy contained within the

NPT itself. As Dr. Ronald F. Lehman II, former director of the U.S.

Arms Control and Disarmament Agency, noted in a statement submitted to the Committee, ‘‘Today, advocates of peaceful applications

of nuclear technology increasingly understand that they must address concerns about non-proliferation and vulnerability to terrorist

exploitation or attacks.’’ 4 The inherent dual-use nature of the complete nuclear fuel cycle, combined with its wide availability in

peaceful civil power applications, uniquely challenges the world to

find ways to stop its contribution to nuclear weapons. The only

international body, at this time, capable of doing so is the IAEA,

and one of the tools with which to attempt to fix this problem is

the Additional Protocol.

Ratification and appropriate implementation by non-nuclearweapon states of the Additional Protocol, based on a Model Additional Protocol issued by the IAEA, could reduce the risk of nuclear

proliferation and improve international confidence that non-nuclear-weapon states party to the NPT are not misusing nuclear materials to develop nuclear weapons. The Model Additional Protocol

was designed to improve the ability of the IAEA to detect clandestine nuclear weapons programs in non-nuclear-weapon states party

to the NPT by providing the IAEA with increased information

about and expanded access to nuclear fuel cycle activities and sites.

The United States, although under no obligation to do so as a nuclear-weapon state under Article I of the NPT, negotiated and

signed an Additional Protocol with the IAEA, which incorporates

the full text of the Protocol. This underscores U.S. commitment to

combating the potential spread of nuclear weapons, and demonstrates that adherence to the Model Additional Protocol by other

countries will not place them at a commercial disadvantage. The

U.S. Additional Protocol is identical to the Model Additional Protocol which non-nuclear-weapon states are being asked to accept,

with the only exceptions being that the U.S. Additional Protocol

does not obligate the United States to apply the Additional Protocol

to activities or locations of direct national security significance to

the United States and that it has a right to use managed access

to protect information of direct national security significance should

inspections be carried out in the United States.

Under the current safeguards regime, the IAEA already has the

right to inspect certain facilities that the United States has declared to it. In practice, however, ever since 1993, ‘‘[a]ll of these inspections were conducted at the request of the United States in

order to safeguard fissile material declared excess to our defense

needs.’’ 5 The Additional Protocol could result in additional inspections in the United States, and the United States must prepare for

that possibility and ensure protections for itself if the IAEA were

4

6Statute of the International Atomic Energy Agency, as last amended on December 28, 1989,

available at http://www.iaea.org/About/statute_text.html.

to conduct such inspections; but 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 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 resolution of advice and consent and this report to accompany it.

II. BACKGROUND

The Additional Protocol between the United States and the IAEA

is the latest of a series of safeguards regimes intended to stem nuclear proliferation, while allowing all countries to reap the benefits

of nuclear energy. Originally, safeguards applied only to nuclear facilities that received assistance from the IAEA. Article II of the

IAEA’s statute states that one of its fundamental objectives is to

‘‘ensure, so far as it is able, that all applications of the atom in a

non-nuclear-weapon state, including the assistance provided by it

. . . is not used in such a way as to further any military purpose.’’ 6

With the entry into force of the NPT in 1970, IAEA safeguards

were expanded to become ‘‘comprehensive’’ safeguards for all of a

country’s declared civil nuclear facilities, and then were formalized

by ‘‘safeguards agreements’’ between each country and the IAEA.

A total of 188 states have approved the NPT and 145 (including

three states that are not party to the NPT) have safeguards agreements, some of them comprehensive, some of them not, with the

IAEA.

The United States’ Voluntary Offer to accept IAEA comprehensive safeguards entered into force in 1980, following Senate advice

and consent to ratification. The NPT requires non-nuclear-weapon

state parties to accept IAEA safeguards on all nuclear material in

all of their peaceful nuclear activities. The United States, as a nuclear-weapon state party to the NPT (along with Russia, China, the

United Kingdom and France), is under no legal obligation to accept

such safeguards. President Lyndon Johnson declared in 1967, however, that the United States would accept the same obligations that

it asked others to accept, with the proviso that it would not provide

any information or access relating to its nuclear weapons programs. By submitting itself to the same safeguards on all of its

civil nuclear facilities that non-nuclear-weapon state parties are

subject to, the United States intended to demonstrate that adherence to the NPT did not place other countries at a commercial disadvantage, either because of increased costs associated with safeguards or because of the risk of the compromise of proprietary information. This offer was critical to gaining the acceptance of the

NPT by countries such as Germany and Japan.

At the end of the Persian Gulf War, the world learned about the

extent of Iraq’s clandestine pursuit of an advanced program to develop nuclear weapons, some of which had been conducted in close

proximity to declared facilities inspected by the IAEA. The interVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
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7 ‘‘Safeguards and Verification, Strengthened Safeguards System: Status of Additional Protocols,’’ the International Atomic Energy Agency, available at http://www.iaea.org/OurWork/SV/

Safeguards/sg_protocol.html.

national community recognized that the IAEA’s international inspection system needed to be strengthened in order to increase its

capability to detect secret nuclear programs. After four years of

work by the Secretariat of the IAEA, an IAEA Committee agreed

on a Model Additional Protocol (the ‘‘Model Protocol’’) for strengthening nuclear safeguards. The Model Protocol was approved by the

IAEA’s Board of Governors in 1997. The Model Protocol was designed to amend existing safeguards agreements to strengthen

such safeguards by requiring non-nuclear-weapon states to provide,

inter alia, broader declarations to the IAEA about their nuclear

programs and nuclear-related activities, and by expanding the access rights of the IAEA. The new safeguards measures become effective in each state when it brings its Additional Protocol into

force.

During the negotiations of the Model Protocol, many non-nuclearweapon state parties to the NPT urged the United States, as the

strongest proponent of the NPT, to accept on a voluntary basis the

provisions of the Model Protocol. The Department of State, the

former Arms Control and Disarmament Agency, the Department of

Defense, the Department of Energy, and the Nuclear Regulatory

Commission, with the advice and support of the Central Intelligence Agency, were primarily responsible for the negotiation of

the U.S. Additional Protocol. Following the example of the Voluntary Offer, the United States stated during the negotiations that

it would accept the provisions of the Model Protocol, subject to a

national security exclusion (NSE) and provisions allowing for managed access during IAEA inspections. An illustrative list of measures for managed access was provided in a separate Subsidiary Arrangement that is to enter into force upon entry into force of the

Additional Protocol.

The success in achieving a strong Model Protocol was critically

dependent on voluntary acceptance of Model Protocol measures by

the United States. The signature of the U.S. Additional Protocol

was a significant factor in the early decision by many non-nuclearweapon states to accept the protocol. As of March 26, 2004, the Additional Protocol to IAEA safeguards agreements of 86 states had

been approved by the Board of Governors, 81 states had signed

their approved Additional Protocols, and 39 contracting states have

had their Additional Protocols enter into force. 7 The U.S. Additional Protocol and its Subsidiary Arrangement were approved by

the Board of Governors on June 11, 1998. The U.S. Additional Protocol and Subsidiary Arrangement were signed by representatives

of the IAEA and the United States on June 12, 1998.

The Additional Protocol was submitted by President Bush to the

United States Senate for its advice and consent to ratification on

May 9, 2002, and was subsequently referred to the Committee on

Foreign Relations.

The responsibility for preparing for the entry into force of the Additional Protocol has been undertaken by an interagency group led

by the National Security Council staff and comprised of representatives of the Department of State, the Department of Defense, the

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Department of Justice, the Department of Commerce, the Department of Energy, the Nuclear Regulatory Commission, and the Central Intelligence Agency. This group has addressed not only the

Senate’s consideration of U.S. ratification, but also the necessary

implementing legislation (a recommended text for which was submitted to the Senate on November 21, 2003, and introduced, at the

request of the Administration, by Chairman Lugar as S. 1987 on

December 9, 2003), agency regulations, interagency procedures and

guidance, preparation at affected locations with national defense

programs, and outreach to other locations that may be affected by

the reporting or IAEA access provisions of the Additional Protocol.

III. SUMMARY OF THE PROTOCOL

The U.S. Additional Protocol is based upon the IAEA Model Additional Protocol. Within 180 days of the entry into force of an Additional Protocol, under Article 3, a state party must provide to the

Agency a declaration containing information about its nuclear and

nuclear-related activities. This includes expanded information

about its holdings of uranium and thorium ores and ore concentrates and of other plutonium and uranium materials not currently subject to Agency safeguards, general information about its

manufacturing of equipment for enriching uranium or producing

plutonium, general information about its nuclear fuel cycle-related

research and development activities not involving nuclear material,

and its import and export of nuclear material and equipment. Such

broad-based information makes it substantially more difficult for a

state planning a clandestine nuclear-weapon program to conceal

the early stages of that program and provides the IAEA with a critical reference base for comparison with information that would otherwise not be available to it, including information from other

member states.

The United States, as a nuclear-weapon state, has already indicated to the IAEA that certain nuclear material, sites and activities

are outside the scope of the U.S. Additional Protocol and will therefore not be declared.

The Additional Protocol provides the IAEA with certain rights of

access to declared locations and also to other undeclared locations

to investigate the possibility of undeclared activities. The resulting

increased risk of early detection is intended to deter non-nuclearweapon states from undertaking a clandestine nuclear weapons

program. With increased transparency, moreover, the IAEA should

be able to provide greater assurance of both the absence of diversion of declared nuclear material and the absence of undeclared nuclear material and activities in those states.

The overall design of the Additional Protocol was shaped by the

interest of states in establishing an appropriate balance between

improving the effectiveness of the safeguards system and the need

to avoid undue interference with legitimate nuclear or nuclear-related activities. The declaration requirements of the Additional

Protocol are of a general character. The IAEA is precluded from

mechanistically or systematically verifying the declarations. The

Additional Protocol defines the activities the IAEA may carry out

at locations of different types; provides for managed access to protect various classes of sensitive information; and provides for the

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negotiation of subsidiary arrangements as needed to further define

how Protocol measures shall be applied, including at particular locations. The Additional Protocol also requires the IAEA to maintain

a stringent regime to ensure effective protection against disclosure

of confidential information that the IAEA receives in reports or

through inspections.

Because the United States is an accepted nuclear-weapon state

under the NPT, the U.S. Additional Protocol includes two provisions not contained in the Model Additional Protocol. The national

security exclusion provision (or NSE) is intended to exclude the application of the Additional Protocol where the United States decides

that its application would result in IAEA access to ‘‘activities with

direct national security significance to the United States or to locations or information associated with such activities’’ (Article 1.b).

The Managed Access provision permits the United States to manage access by the IAEA to ‘‘activities with direct national security

significance to the United States or to locations or information associated with such activities’’ (Article 1.c). This supplements the

managed access rights of all countries that sign Additional Protocols, to ‘‘prevent the dissemination of proliferation sensitive information, to meet safety or physical protection requirements, or to

protect proprietary or commercially sensitive information’’ (Article

7). An illustrative list of measures permitted to be taken by the

United States during managed access under Article 1 is contained

in a Subsidiary Agreement to the Additional Protocol that is to

enter into force when the Additional Protocol enters into force. The

United States has conveyed to the IAEA its intent to make full and

repeated use of these provisions in order to protect information, locations, and activities of direct national security significance to the

United States.

IV. ARTICLE-BY-ARTICLE ANALYSIS

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 consists of the main text of the protocol along with two annexes, which

are an integral part of the Additional Protocol. It is based on the

Model Additional Protocol, with certain additions, most notably the

provision that allows the United States to exclude application of

the Additional Protocol in cases where the United States decides it

would result in access by the International Atomic Energy Agency

(the ‘‘IAEA’’) to activities with direct national security significance

to the United States or to locations or information associated with

such activities. This provision is the ‘‘National Security Exclusion’’. executive branch agencies will exercise their responsibilities to implement the Additional Protocol subject in all respects to the President’s authority as chief executive and consistent with his foreign

affairs power.

TITLE AND PREAMBLE

The Title of the Additional Protocol is the ‘‘Protocol Additional to

the Agreement between the United States of America and the

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guards in the United States of America’’. The Additional Protocol

is a bilateral treaty that will supplement and amend the IAEA

verification arrangements set forth in the existing Agreement between the United States of America and the International Atomic

Energy Agency for the Application of Safeguards in the United

States of America (the ‘‘Voluntary Offer’’), which was signed at Vienna on November 18, 1977, and entered into force on December

9, 1980.

The Preamble to the Additional Protocol serves as an introduction and sets forth the intention of the United States and the IAEA

in broad terms. The first paragraph of the Preamble notes that the

United States and the IAEA are already parties to the Voluntary

Offer. The following paragraphs of the preamble set forth the Parties’ considerations upon entering into the Additional Protocol.

These paragraphs first recognize the desire of the international

community to further enhance nuclear non-proliferation by

strengthening the IAEA’s safeguards system. They also reiterate

certain provisions in the Voluntary Offer, inter alia, that the IAEA

must, in the implementation of safeguards, take into account the

need to avoid hampering the economic and technological development of the United States or international cooperation in the field

of peaceful nuclear activities; respect health, safety, physical protection and other security provisions in force and the rights of individuals; and take every precaution to protect commercial, technological, and industrial secrets as well as other confidential information. Furthermore, they note that, consistent with the objective to

strengthen the effectiveness and improve the efficiency of safeguards, the frequency and intensity of activities described in the

Additional Protocol will be kept to a minimum.

ARTICLE 1—RELATIONSHIP BETWEEN THE ADDITIONAL PROTOCOL AND

THE VOLUNTARY OFFER, U.S. NATIONAL SECURITY EXCLUSION, AND

MANAGED ACCESS

Article 1.a establishes the relationship between the Voluntary

Offer and the Additional Protocol. It provides that the provisions

of the Voluntary Offer will apply to the Additional Protocol to the

extent relevant to and compatible with the provisions of the Additional Protocol. Where there is a conflict between the two agreements, the provisions of the Additional Protocol are to apply. The

principal differences between the Voluntary Offer and the Additional Protocol include the broader declaration requirements called

for and the expanded access permitted in the Additional Protocol.

There are also improved procedures for designating IAEA inspectors, issuing their visas, and protecting safeguards information by

the IAEA. These procedures are discussed below in the sections describing Articles 11, 12, and 15. In such areas, the Additional Protocol provisions will govern. As a practical matter, the United

States has been implementing procedures similar to those in the

Additional Protocol for designating inspectors and issuing their

visas on a voluntary basis for several years.

Under Article 1.b of the Additional Protocol, the United States

has the right to exclude the application of the Additional Protocol

where the United States decides that its application would result

in access by the IAEA to activities with direct national security sigVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
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nificance to the United States or to locations or information associated with such activities. The United States has the sole discretion

to determine whether an activity implicates information of direct

national security significance and therefore whether and how to invoke the National Security Exclusion. The United States will have

undeclared nuclear material and activities outside the scope of the

Additional Protocol and the Voluntary Offer, including certain activities at locations that are part of the U.S. civil nuclear program,

consistent with its status as a nuclear-weapon state. The IAEA

knows and accepts that this will be the case.

In addition, under Article 1.c, the United States has the right to

use managed access in connection with activities with direct national security significance to the United States or in connection

with locations or information associated with such activities. This

right is not available to non-nuclear-weapon states. Consistent with

the President’s authority, use of the National Security Exclusion

will be guided by principles developed for its application.

Information of direct national security significance will be protected in all aspects of implementation of the Additional Protocol

through invoking the National Security Exclusion or through the

implementation of managed access. The National Security Exclusion is applicable to all of the following provisions and will exempt

the United States from any of the requirements noted when it is

invoked.

The United States will make full use of the managed access and

National Security Exclusion provisions of Article 1 in order to protect activities of direct national security significance to the United

States or locations or information associated with such activities.

Additionally, decisions concerning the use of the National Security

Exclusion and managed access to protect national security information will be made in accordance with established implementing procedures solely by the affected cognizant Department.

ARTICLE 2—PROVISION OF INFORMATION

Article 2 sets forth information that the United States is to provide to the IAEA. The United States must provide the following

declarations specified in Article 2.a: information regarding nuclear

fuel cycle-related research and development activities not involving

nuclear material that are funded, specifically authorized or controlled by, or carried out on behalf of, the United States (Article

2.a(i)); if agreed by the United States, additional information needed to improve the effectiveness or efficiency of safeguards on nuclear material at nuclear facilities and locations outside facilities

(Article 2.a(ii)); a general description of each building on a site (i.e.,

the area delimited by the United States in the relevant design information for a facility) (Articles 2.a(iii) and 18.(b)); a description

of the scale of operations of each location engaged in the manufacturing activities specified in Annex I (Article 2.a(iv)); information

regarding uranium mines and concentration plants and thorium

concentration plants (Article 2.a(v)); information regarding locations with certain quantities of specified nuclear materials as well

as information regarding exports and imports of certain quantities

of these materials (Article 2.a(vi)); information regarding nuclear

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guards by arrangement with the IAEA (Article 2.a(vii)); information regarding the location or further processing of intermediate or

high-level waste containing plutonium, high enriched uranium or

uranium-233 on which safeguards have been terminated pursuant

to Article 11 of the Voluntary Offer (Article 2.a(viii)); information

regarding the equipment and non-nuclear material specified in

Annex II with regard to exports and imports of such items (Article

2.a(ix)); and information regarding general plans for the succeeding

10-year period relevant to the development of the nuclear fuel cycle

when approved by the appropriate authorities in the United States

(Article 2.a(x)).

Article 2.b requires the United States to make every reasonable

effort to provide: information regarding specified nuclear fuel cyclerelated research and development activities not involving nuclear

material that are not funded, specifically authorized or controlled

by, or carried out on behalf of, the United States (Article 2.b(i));

and a general description of activities and the identity of the person or entity carrying out activities at locations identified by the

IAEA outside a site (i.e., the area delimited by the United States

in the relevant design information for a facility) that the IAEA considers might be functionally related to the activities of that site

(Articles 2.b(ii) and 18.b).

Article 2.c requires the United States, if requested by the IAEA,

to provide amplifications or clarifications of any information provided under Article 2, in so far as relevant for the purpose of safeguards. The United States has informed the IAEA that it expects

that a ‘‘question relating to the correctness and completeness of the

information provided pursuant to Article 2’’, (Article 4.a.(ii)) or an ‘‘inconsistency relating to that information’’ (Article 4.a.(ii)) will be

judged by the IAEA strictly within the context of whether the information provided with respect to civil nuclear activities is complete,

correct, and internally consistent. In accordance with the National

Security Exclusion, the United States will supply information pursuant to Article 2 of the Additional Protocol only on those unclassified activities to which it has determined that it will be able to provide the IAEA with sufficient access, including with managed access, to enable it to verify the accuracy of the declared information.

ARTICLE 3—TIMELINES FOR THE PROVISION OF INFORMATION

Article 3 sets forth the timelines for submission of the U.S. declarations. The United States must provide to the IAEA the information identified in Article 2.a(i), (iii), (iv), (v), (vi)(a), (vii), and (x)

and Article 2.b(i) within 180 days of the entry into force of the Additional Protocol. Other information is to be submitted on a quarterly or annual basis, within a specified period from a particular

event, or as negotiated on a case-by-case basis.

ARTICLES 4–6—COMPLEMENTARY ACCESS

Article 4 establishes the rights and obligations of the IAEA with

regard to the implementation of complementary access. Specifically,

Article 4.a provides that the IAEA shall not mechanistically or systematically seek to verify the information in the Article 2 declarations and then sets forth the purposes for which the IAEA can exercise complementary access. Article 4.a(i) specifies that the IAEA

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shall have access to the locations referred to in Article 5.a(i) or (ii)

on a selective basis in order to assure the absence of undeclared

nuclear material and activities. Under Article 4.a(ii), the IAEA

shall have access to the locations specified in Articles 5.b or 5.c for

the purpose of resolving a question relating to the correctness and

completeness of the information provided or in resolving an inconsistency relating to that information. Article 4.a(iii) allows the

IAEA to have access to any of the decommissioned locations referred to in Article 5.a(iii) to the extent necessary to confirm the

U.S. declaration. The United States has informed the IAEA that it

expects the IAEA to seek such access in the United States for the

purpose of increasing the effectiveness or efficiency of IAEA safeguards at facilities in non-nuclear-weapon states or enhancing the

capability of the IAEA to detect undeclared nuclear material and

activities in a non-nuclear-weapon state. Further, the United

States has informed the IAEA that, as a nuclear-weapon state, the

United States foresees no circumstances in which the IAEA would

need to request access in the United States pursuant to Article 4.d

of the Additional Protocol without first providing the United States

with the opportunity to clarify and facilitate the resolution of the

question or the inconsistency.

Under Article 4.b, the IAEA is generally required to give advance

notice of access of at least 24 hours. However, for access to any

place on a site (defined in Article 18.b as the area delimited by the

United States in the relevant design information for a facility) that

is sought in conjunction with design information verification visits

or ad hoc or routine inspections on that site, the period of advance

notice shall, if the IAEA so requests, be at least two hours, but in

exceptional circumstances may be less than two hours. Under Article 4.c, the advance notice shall be in writing and specify the reasons for access and the activities to be carried out. Article 4.d

states that, in the case of a question or inconsistency, the IAEA

shall provide the United States with an opportunity to clarify and

facilitate the resolution of the question or inconsistency. The Additional Protocol states that such an opportunity is to be provided before a request for access, unless the IAEA considers that delay in

access would prejudice the purpose for which the access is sought.

The IAEA is not to draw any conclusions about the question or inconsistency until the United States has been provided with such an

opportunity. As noted throughout, the United States has informed

the IAEA that as a nuclear-weapon state, the United States foresees no circumstances in which the IAEA would need to request access pursuant to Article 4.d of the Additional Protocol without first

providing the United States with the opportunity to clarify and facilitate the resolution of the question or inconsistency. Pursuant to

Article 4.e, unless otherwise agreed to by the United States, access

shall only take place during regular working hours. Article 4.f specifically authorizes U.S. representatives to accompany IAEA inspectors during their access, provided that the inspectors are not thereby delayed or otherwise impeded in the exercise of their functions.

However, the managed access provisions of Article 1 and Article 7

or the National Security Exclusion could be invoked and, if invoked, could preclude or otherwise affect IAEA access or activities

as the case may be.

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Article 5 sets forth the locations to which the IAEA may have access. Specifically, Article 5.a defines the locations for which the

United States must provide access subject to the managed access

provision of Article 1 and the National Security Exclusion or the

managed access provisions of Article 7. These are: any place on a

site (i.e., the area delimited by the United States in the relevant

design information for a facility) (Article 5.a(i)); any location identified by the United States in its declarations under Article 2.a(v)–

-(viii) (Article 5.a(ii)); and any decommissioned facility or decommissioned location outside facilities where nuclear material was

customarily used (Article 5.a(iii)).

Articles 5.b and 5.c list other locations for which the United

States shall provide access or, if it is unable to do so, ‘‘shall make

every reasonable effort’’ to satisfy IAEA requirements, without

delay, through other means. The locations in Article 5.b are the locations (other than those referred to in Article 5.a(i)) described in

the declarations made under the following provisions: Article 2.a(i)

(locations of nuclear fuel cycle-related research and development

funded, authorized, or controlled by, or carried out on behalf of the

United States); Article 2.a(iv) (locations engaged in activities listed

in Annex I); Article 2.a(ix)(b) (locations of intended use in the

United States of imported Annex II equipment and non-nuclear

material) and Article 2.b (specified nuclear fuel cycle-related research and development that is not funded, authorized, or controlled by, or carried out on behalf of, the United States and locations outside a site). Article 5.c provides for access to any location

specified by the IAEA, other than locations referred to in Article

5.a or 5.b, to carry out location-specific environmental sampling.

Under the National Security Exclusion, the United States has

the right to exclude from the Article 2 declarations 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. 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 (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.

Article 6 sets forth the range of activities that may be employed

by IAEA inspectors during complementary access. Under Article 6,

the type of activities that can be conducted by the inspectors depends on the particular location under inspection. The United

States intends to exercise its right under the National Security Exclusion and managed access provisions of Article 1 to preclude the

use of particular measures if their use would result in access by

the IAEA to activities with direct national security significance to

the United States or to locations or information associated with

such activities. For example, the United States will use the National Security Exclusion to preclude the IAEA from collecting location specific environmental samples from current or former nuclear

weapon production complex sites. In addition, the complementary

13

access activities referred to in Articles 5 and 6 are subject to the

managed access provisions contained in Article 7.

ARTICLE 7—MANAGED ACCESS

Article 7 provides that, upon request by the United States, the

IAEA and the United States shall make arrangements for managed

access under the Additional Protocol in order to prevent the dissemination of proliferation-sensitive information, to meet safety or

physical protection requirements, or to protect proprietary or commercially sensitive information. Under Article 7.b, the United

States may, when providing the information referred to in Article

2, inform the IAEA of the places at a site or location at which managed access may be applicable, although it is not obligated to do

so. Article 7.c allows the United States to use managed access

pending entry into force of any necessary Subsidiary Arrangements. Specific managed access measures needed to protect the

types of information set forth in Article 7 will be determined on a

case-by-case basis and will depend on, among other factors, the details of the particular location, and the specific inspection activities

that are requested by the IAEA. As noted previously, the United

States intends to deny access or the application of specific measures on the basis of the National Security Exclusion. Where the

United States decides to permit access, Article 1.c also allows the

United States to use managed access to protect activities, information, or locations of direct national security significance. This gives

the United States the discretion to use managed access, rather

than the National Security Exclusion, to protect activities, information, or locations of direct national security significance. Such circumstances may arise, for example, where unclassified, civil nuclear activities are being conducted at installations where national

security activities are also being conducted and it has been determined that managed access procedures can be implemented to

allow IAEA access to the unclassified activities while fully protecting classified information.

When the Additional Protocol was concluded, a Subsidiary Arrangement was agreed to between the United States and the IAEA

specifying, for the purposes of the Additional Protocol with the

United States, as a nuclear-weapon state, measures that could be

taken to manage access. These may include, inter alia: (a) removal

of sensitive papers from office spaces; (b) shrouding of sensitive displays, stores, and equipment; (c) shrouding of sensitive pieces of

equipment, such as computers or electronic systems; (d) logging off

of computer systems and turning off data indicating devices; (e) restriction of safeguards instrumentation or environmental sampling

to the purpose of the access; and (f) in exceptional cases, giving

only individual inspectors access to certain parts of the inspection

location. This Subsidiary Arrangement is to enter into force when

the Additional Protocol enters into force.

ARTICLE 8—ADDITIONAL ACCESS AT U.S. REQUEST

Article 8 allows the United States to offer the IAEA access to locations in addition to those referred to in Articles 5 and 9 and to

request that the IAEA conduct verification activities at a particular

14

location. The IAEA shall, without delay, make every reasonable effort to act upon such a request.

ARTICLE 9—ENVIRONMENTAL SAMPLING

Under Article 9, 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 seek such access until the use of

wide-area environmental sampling and the procedural arrangements therefor 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.

ARTICLE 10—REQUIREMENTS FOR IAEA REPORTS TO THE UNITED

STATES

Article 10 requires the IAEA to inform the United States, within

specified time limits, of activities carried out under the Additional

Protocol, the results of activities in respect of any questions or inconsistencies the IAEA had brought to the attention of the United

States, and the conclusions it has drawn from its activities under

the Additional Protocol.

ARTICLE 11—DESIGNATION OF IAEA INSPECTORS

Article 11 provides improved procedures for the designation of

IAEA inspectors. Under Article 11, the Director General shall notify the United States of the Board’s approval of any IAEA official

as a safeguards inspector. Unless the United States advises the Director General of its rejection of such an official as an inspector

within three months of receipt of notification of the Board’s approval, the inspector will be considered designated to the United

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

also retains the right subsequently to withdraw acceptance of inspectors as needed.

ARTICLE 12—VISAS

To enable inspectors to carry out their duties in the United

States, Article 12 requires the United States to issue appropriate

multiple-entry/exit and/or transit visas to designated IAEA inspectors. These visas must be valid for at least one year, must be

issued within one month of a request, and must be renewed, as required, to cover the duration of the inspector’s designation to the

United States.

ARTICLE 13—SUBSIDIARY ARRANGEMENTS

Article 13 provides for the conclusion of Subsidiary Arrangements that specify how Additional Protocol measures are to be applied. Requests for such arrangements can be made at any time by

15

either the United States or the IAEA. Subsidiary Arrangements

are likely to regard matters such as managed access and IAEA

communications. The United States and the IAEA shall agree on

such arrangements within 90 days of the entry into force of the Additional Protocol or, where the indication of the need for such Subsidiary Arrangements is made after the entry into force of the Additional Protocol, within 90 days of date of such indication. As discussed in Article 7, the United States and the IAEA have agreed

to an initial Subsidiary Arrangement governing certain measures

regarding managed access. This Arrangement is to enter into force

upon entry into force of the Additional Protocol.

ARTICLE 14—IAEA COMMUNICATION SYSTEMS

Under Article 14, the United States is required to permit and

protect unimpeded communications by the IAEA for official purposes between IAEA inspectors in the United States and IAEA

Headquarters and/or Regional Offices. The IAEA has the right, in

consultation with the United States, to make use of internationally

established systems of direct communications, including satellite

systems and other forms of telecommunication. IAEA communications shall take due account of the need to protect proprietary or

commercially sensitive information or design information that the

United States regards as being of particular sensitivity.

ARTICLE 15—IAEA PROTECTION OF CONFIDENTIAL INFORMATION

Article 15 requires the IAEA to maintain a stringent regime to

ensure effective protection against disclosure of commercial, technological, and industrial secrets and other confidential information

coming to its knowledge. The Board has approved a strengthened

regime and is required under the Additional Protocol to review it

periodically. This regime includes provisions relating to general

principles and associated measures for the handling of confidential

information, conditions of staff employment relating to the protection of confidential information, and procedures in cases of

breaches or alleged breaches of confidentiality.

ARTICLE 16—INTEGRATION AND AMENDMENT OF THE ANNEXES

Article 16.a provides that the Annexes to the Additional Protocol

are an integral part thereof. These annexes provide technical definitions of key nuclear activities and equipment and material declarable under Article 2 of the Additional Protocol. Article 16.b provides that the Annexes may be amended by the Board upon the advice of a working group of experts established by the Board and

open to all members of the IAEA. Any such amendment will take

effect four months after its adoption by the Board.

ARTICLE 17—ENTRY INTO FORCE

This provision establishes the date of entry into force of the Additional Protocol. Specifically, the Additional Protocol will come into

force only when the IAEA receives written notification from the

United States that its statutory and constitutional requirements

for entry into force have been met.

16

ARTICLE 18—DEFINITIONS

Article 18 sets forth the definitions of the following terms used

in the Additional Protocol: ‘‘nuclear fuel cycle-related research and

development activities’’; ‘‘site’’; ‘‘decommissioned facility and decommissioned location outside facilities’’; ‘‘closed-down facility and

closed-down location outside facilities’’; ‘‘high-enriched uranium’’; ‘‘location-specific environmental sampling’’; ‘‘wide-area environmental sampling’’; ‘‘nuclear material’’; ‘‘facility’’; and ‘‘location outside facilities’’.

ANNEXES

Annex I contains a list of nuclear-related activities, such as centrifuge manufacturing, required to be reported under Article

2.a(iv). Annex II contains the list of specified equipment and nonnuclear material for the reporting of exports and imports, as required by Article 2.a(ix). Annex II reproduces the list of specified

equipment and non-nuclear material that was approved by the

Board in 1992 for voluntary reporting of exports to the IAEA

V. 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 the former Director of the Arms Control and Disarmament

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

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. Neither the conditions nor the understandings need be transmitted to the IAEA

when the United States deposits its instrument of ratification.

Rather, they address the relationship between the Senate and the

President as the Senate gives its advice and consent to ratification

of the Additional Protocol.

Condition (1). Certifications Regarding The National Security Exclusion, Managed Access, and Declared Locations.

In deciding to accept the entire text of the Additional Protocol,

the United States clearly seeks to show its support for the Additional Protocol as an additional non-proliferation tool and to demonstrate that adoption of the Model Additional Protocol by non-nuVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
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8Part IX, p. 60.

9Part IX, p. 96.

clear weapon states will not put their civilian nuclear industries at

a disadvantage. As Ambassador Linton F. Brooks, Administrator of

the National Nuclear Security Administration, noted in testimony

before the Committee:

[I]f we’re going to get the benefits of widespread adherence to the protocol, the United States must lead the way.

Given our dominant position in the world today, there’s

simply no substitute for U.S. leadership. . . . Just like the

original Safeguards Agreement, the U.S. Additional Protocol contains a national security exclusion to protect our

national security equities. But except for that, the U.S. Additional Protocol contains every word of the IAEA Model

Protocol and we’re the only nuclear weapon state that has

accepted the Model Protocol in its entirety. If we hadn’t

pushed so hard for a strong Model Protocol and if we

hadn’t accepted a comprehensive Additional Protocol for

ourselves, I believe fewer states would have been willing

to accept their own protocols. 8

The Committee accepts the need to demonstrate U.S. leadership,

but it is pleased nevertheless that protections for the U.S. nuclear

weapons and civil application sectors were included in the Additional Protocol. The most sweeping of such provisions is the National Security Exclusion contained in Article 1.b, discussed above.

Likewise, the Committee notes that there are distinct forms of

managed access provided for under the Additional Protocol. Article

1.c states that ‘‘the United States shall have the right to use managed access in connection with activities with direct national security significance to the United States or in connection with locations or information associated with such activities.’’ Article 7 of

the Additional Protocol permits the United States to invoke managed access ‘‘in order to prevent the dissemination of proliferationsensitive information, to meet safety or physical protection requirements, or to protect proprietary or commercially sensitive information.’’ While the Committee strongly supports the U.S. decision to accept the entire text of the Additional Protocol, with only the addition of our national security rights under Article 1, it is important

to determine how the executive branch will actually exercise and

use those rights available to the United States in Article 1. As Ambassador Brooks noted, ‘‘We chose to adopt the entire Additional

Protocol with only the addition of the national security exemption.

It’s not a national inconvenience exemption, it’s not a national burden-on-somebody-who-has-to-fill-out-a-form exemption, it’s a national security exemption.’’ 9

Testimony before the Committee strongly indicates that use of

the National Security Exclusion under Article 1 is the exclusive

right of the United States, and is not subject to interpretation by

the IAEA. As Ambassador Brooks told the Committee:

[T]he United States can unilaterally and without explanation invoke [the] National Security Exclusion that enVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
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10Part IX, p. 61. 11Part IX, p. 84. 12Treaty Doc. 107–7, at p. 1. 13Treaty Doc. 107–7, at p. 7. 14 Ibid. 15 Ibid, p. 8.

ables us to deny IAEA access to activities with direct national security significance, or to locations associated with

those activities. The IAEA has no right to challenge or

question the U.S. invocation of the National Security Exclusion. 10

Similarly, Mark T. Esper, Deputy Assistant Secretary of Defense

for Negotiations Policy, stated:

The National Security Exclusion is a critical protection

for the United States. Under this provision, the United

States can exclude information and activities from declarations and deny access to IAEA inspectors anytime, anyplace. In the declaration process, the National Security Exclusion will be used to exclude locations, activities and information of direct national security interest. The United

States, unlike non-nuclear weapon states, has and will

continue to have undeclared nuclear material and activities outside the scope of the Additional Protocol. 11

In addition to the Administration’s statements before the Committee, included in the package sent by the Administration to the

Senate containing the Additional Protocol was a letter sent by Ambassador Kenneth C. Brill, the United States Permanent Representative to the International Atomic Energy Agency and the Vienna Office of the United Nations, to the Director General of the

International Atomic Energy Agency on April 30, 2002. This letter

is incorporated by reference in the Committee’s recommended Understanding (1), and its text is reproduced in the discussion of that

provision. Ambassador Brill’s letter makes clear to the IAEA that

‘‘the United States will make full and repeated use’’ of its rights

under Article 1 ‘‘in order to protect information and activities of direct national security significance to the United States.’’ 12 The Article-by-Article Analysis submitted by the President with the Additional Protocol further notes that the IAEA is aware of these views

and that ‘‘[t]he Agency knows and accepts that this will be the

case.’’ 13

An equally important concern is how the use of the National Security Exclusion will be decided within the U.S. Government. The

Article-by-Article Analysis submitted to the Senate states that the

National Security Exclusion will be exercised when the application

of the Additional Protocol’s provisions would involve ‘‘activities

with direct national security significance to the United States or to

locations and information associated with such activities’’ 14 and

further that ‘‘decisions concerning the use of the National Security

Exclusion and managed access to protect national security information will be made in accordance with established implementing procedures solely by the affected cognizant Department or Agency.’’ 15

In response to a Committee Question for the Record, the Administration added that, ‘‘in cases where the equity agency deems there

19

16Part IX, p. 106. 17Testimony of Ambassador Linton F. Brooks, Part IX, p. 61. 18Part IX, p. 64.

is information, activities, and locations of direct national security

significance which cannot be protected, the national security exclusion will be used.’’ 16

The Committee received several classified briefings regarding

principles that will govern the use of the National Security Exclusion under Article 1.b and the right of managed access under Article 1.c, and has been shown a classified study which details the

principles developed for the application of the National Security

Exclusion. Additionally, several classified answers to questions for

the record addressed this issue. Based in part on these briefings

and answers, the Committee believes that the executive branch will

eventually promulgate procedures to implement Article 1.b. The

needed regulations and interagency guidance have not been finalized, however, and cannot be until after the Senate gives its advice

and consent to ratification and implementing legislation is enacted.

Because of the need to ensure that such regulations and guidance are promulgated in a timely manner, and more importantly

are consistent with the principles developed for the application of

the National Security Exclusion, the Committee has included Condition (1) in its proposed Resolution of Ratification. Condition (1)

(A) requires the President to certify that not later than 180 days

after entry into force of the Additional Protocol, all necessary regulations will be promulgated and in force concerning the National

Security Exclusion and that such regulations shall be made in accordance with the principles developed for application of the National Security Exclusion, principles which have been briefed to the

Committee. This Condition allows for prospective certification,

prior to the deposit of the instrument of ratification, so as not to

delay the Additional Protocol’s entry into force. Pursuant to Article

3.a of the Additional Protocol, the provision to the IAEA of information under Article 2.a(i), (iii), (iv), (v), (vi) (a), (vii), and (x) and

2.b(i) need not be made until 180 days after entry into force. Thus,

the regulatory framework governing U.S. implementation of the

Additional Protocol could be completed during this 180-day period.

The intended effect of Condition (1)(A) is to ensure that regulations

will be timely and will conform to the principles concerning the National Security Exclusion that have been shared with the Committee.

Managed access under the Additional Protocol is complicated, as

there are two types of managed access. For the Department of Energy, managed access under Article 7 includes ‘‘shrouding, closing

doors, limiting access, turning off computers . . . that will allow us

to prevent IAEA inspectors from coming into contact with proliferation sensitive or proprietary or commercially sensitive information.’’ 17

Ambassador Brooks testified that ‘‘Managed access under Article

1 is more robust than the Article 7 managed access.’’ 18 Thus, the

Subsidiary Arrangement of June 12, 1998, cites such additional

managed access measures as removal of sensitive papers from inspected areas and ‘‘in exceptional cases, giving only individual inVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
20

19Treaty Doc. 107–7, at p. 4. 20Part IX, p. 62. 21Part IX, p. 106. 22 Ibid.

spectors access to certain parts of the inspection location.’’ 19 Ambassador Brooks emphasized, however, that the utility of managed

access is limited:

We’ll . . . make full use of managed access, but once

again only where we’re confident that managed access is

sufficient to protect our national security equities. . . . In

short, we plan to make full use of our rights under the Additional Protocol to protect our interests while still meeting

our obligations. 20

Secretary Esper noted that the only sites where the Defense Department anticipates possibly invoking managed access (rather

than the National Security Exclusion) will be at those sites the Department of Energy declares, but at which certain Defense Department equities might be at stake.

The Committee believes that it is important also to ensure that

if managed access is invoked it is used effectively. Condition (1)(B),

which is similar to (1)(A), therefore requires prospective certification regarding inter-agency guidance and regulation on managed

access.

Finally, in (1)(C) the Committee has conditioned entry into force

on the timely completion of necessary security and counterintelligence training for any declared locations of direct national security significance to the United States. While it is clear that the National Security Exclusion will be used in the declaration process to,

as Secretary Esper noted, ‘‘exclude locations, activities and information of direct national security interest,’’ the Committee finds

that there still may be locations that contain sensitive activities

and national security equities that could be declared to the IAEA,

and where managed access might be used if an inspection were to

occur. In such a circumstance it is only prudent that necessary and

proper security measures be taken for such locations.

Condition (2). Certification Regarding Site Vulnerability Assessments.

The Committee has devoted particular attention to the status of

site vulnerability assessments for potentially declarable sites in the

United States. In response to a Committee Question for the Record,

the Administration stated that ‘‘DOD, in cooperation with DOE,

conducted 10 vulnerability assessments at DOE facilities in 1999– 2000. These assessments were based on preliminary assumptions

that are no longer valid and will need to be revisited.’’ 21 The response to this question offered no reason as to why preliminary assessments are no longer valid, but stated that ‘‘[t]his process is underway.’’ 22

During testimony before the Committee, Secretary Esper noted

that for the Department of Defense:

In order to gauge risk at specific locations, vulnerability

assessments will be conducted at potentially declarable

sites that have national security equities. Once our impleVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00020 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
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23Part IX, p. 86. 24Part IX, p. 106. 25Part IX, p. 91. 26Part IX, p. 92.

mentation guidance has been clarified and implementing

legislation passed, we will revisit and update assessments

that have been previously conducted. We are also reviewing what other sites may require vulnerability assessments. These assessments will vary, based on the nature

and location, among other things, of the site or activity.

Some will be fairly simple, while others will require a

more detailed examination. 23

The Administration’s answer to a Committee Question for the

Record addressed what this process will entail:

In addition to initial assessments and procedure revisions to support entry into force, DOE sites will integrate

Additional Protocol requirements into its periodic security

assessment, planning, and procedure updates. Furthermore, a subgroup of the DOD Nuclear Safeguards Implementation Working Group will identify other sites that require vulnerability assessments. The completion date depends on the number of locations identified for vulnerability assessments and available resources. All necessary

site vulnerability assessments will be completed by entryinto-force of the U.S. Additional Protocol. 24

Similarly, Secretary Lichtenbaum noted for the Department of

Commerce that

. . . in order to ensure that proper protections are established and that industry has adequate time to understand

and implement its reporting obligations, entry into force

will not occur until Commerce publishes its regulations in

final form and vulnerability assessments of declared locations of direct national security significance are completed. 25

The Committee is concerned about the about the small number

of site vulnerability assessments that have been completed for locations of direct national security significance that might be declared

under the Additional Protocol. The Committee understands that, as

Ambassador Brooks stated, ‘‘The list of sites will obviously grow.

We don’t know by how much,’’ 26 and that as a result, site vulnerability assessments are difficult to complete at this time. The Committee believes that all such assessments should be carried out

prior to any possible inspections under the Additional Protocol and

accordingly recommends conditioning the Senate’s advice and consent to ratification on certification that all site vulnerability assessments will have been completed not later than 180 days after the

deposit of the United States instrument of ratification for the initial United States declaration to the IAEA under the Additional

Protocol.

22

Understanding (1). Implementation of the Additional Protocol.

As noted above, on April 30, 2002, Ambassador Kenneth C. Brill

sent a letter to the Director General of the IAEA in which he expressed the United States’ interpretation of certain provisions contained in the Additional Protocol. The text of this letter is as follows:

UNITED STATES MISSION TO

INTERNATIONAL ORGANIZATIONS IN VIENNA, OBERSTEINERGASSE 11/1, A–1190,

Vienna, Austria.

April 30, 2002.

MR. MOHAMED ELBARADEI, Director General,

International Atomic Energy Agency,

Vienna International Center.

Dear Mr. ElBaradei:

I wish to inform the International Atomic Energy Agency of the

decision to recommend that President Bush seek the advice and

consent of the U.S. Senate to ratification of 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 (the ‘‘Additional Protocol’’),

signed on June 12, 1998.

The recommendation to the President to seek Senate advice and

consent to ratification of the Additional Protocol is based on how

the United States views implementation of key provisions of the

Additional Protocol. The United States intends to provide information and access to the IAEA in accordance with the terms of the

Additional Protocol in order to assist it in developing the procedures, tools and techniques that will strengthen the capability of

the IAEA to detect undeclared nuclear activities in ‘‘non-nuclearweapon states’’ (NNWS).

A. Use of the National Security Exclusion and Managed Access

The Additional Protocol includes all of the measures of the Model

Protocol adopted by the Board of Governors. It also contains several provisions unique to the status of the United States as a ‘‘nuclear weapon state’’ (NWS). In particular, the Additional Protocol

contains a ‘‘National Security Exclusion’’ (NSE) that allows the

United States to exclude the application of the Additional Protocol

where the United States decides that its application would result

in ‘‘access by the Agency to activities with direct national security

significance to the United States or to locations or information associated with such activities.’’ (Article 1.b) The Additional Protocol

also contains a provision not contained in the Model Protocol for

NNWS that permits the United States to manage access ‘‘in connection with activities with direct national security significance to

the United States or in connection with locations or information associated with such activities.’’ (Article 1.c)

The United States will make full and repeated use of these provisions in order to protect information, locations, and activities of direct national security significance to the United States.

23

Decisions regarding the use of these provisions are a unilateral

prerogative of the United States—not subject to interpretation by,

or justification to, any other party.

The United States, unlike NNWS, has and will continue to have,

undeclared nuclear material and activities outside the scope of the

Additional Protocol and the November 18, 1977, Agreement between the United States of America and the International Atomic

Energy Agency for the Application of Safeguards in the United

States of America and their applicable inspection provisions, consistent with its status as a NWS. Certain activities that occur at

locations that are part of the Untied States civil nuclear program

may also be excluded from the declaration and access provisions of

the Additional Protocol in accordance with the terms of the NSE.

The U.S.–IAEA Subsidiary Arrangement to the Additional Protocol signed at Vienna on June 12, 1998, will enter into force when

the Additional Protocol enters into force.

B. Role of the Additional Protocol in Strengthening IAEA Capabilities

The United States intends that its implementation of the Additional Protocol will, as expressed in the Preamble, ‘‘further enhance

nuclear non-proliferation by strengthening the effectiveness and

improving the efficiency of the Agency’s safeguards system.’’ Since

the United States will have undeclared nuclear activities, Agency

activities directed toward the detection of undeclared nuclear activities in the United States are not viewed as necessary to enhance non-proliferation. In accordance with the NSE, the United

States will supply information pursuant to Article 2 of the Additional Protocol only on those unclassified activities to which it has

determined that it will be able to provide the IAEA with sufficient

access, including with managed access, to enable it to verify the accuracy of the declared information.

The Untied States expects the IAEA to seek access in the United

States for the purpose of increasing the effectiveness or efficiency

of IAEA safeguards at facilities in NNWS, or enhancing the capability of the IAEA to detect undeclared nuclear material and activities in NNWS.

As a NWS, the United States foresees no circumstances in which

the IAEA would need to request access in the United States pursuant to Article 4.d of the Additional Protocol on the basis of a question or inconsistency without first providing the United States with

the opportunity to clarify and facilitate the resolution of the question or inconsistency.

When the IAEA has access to a location, site or facility in the

United States, the United States will conduct ‘‘managed access’’

under Article 1.c of the Additional Protocol according to U.S. national security requirements, or under Article 7 of the Additional

Protocol, according to requirements to protect, inter alia, proprietary or commercially sensitive information, as applicable.

C. Questions Under Article 2

A ‘‘question relating to the correctness and completeness of the

information provided pursuant to Article 2,’’ (Article 4.a.(ii)) or an

‘‘inconsistency relating to that information’’ (Article 4.a.(ii)) will be

24

27Part IX, p. 109. 28Part IX, p. 111.

judged by the IAEA strictly within the context of whether the information provided with respect to civil nuclear activities is complete,

correct, and internally consistent.

D. Wide-Area and Site-Specific Sampling

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.

It is on the basis of these U.S. views that the United States is

prepared to move toward bringing the Additional Protocol into

force. The United States looks forward to working with the IAEA

in improving its capability to detect undeclared nuclear material

and activities in NNWS.

Sincerely yours,

KENNETH C. BRILL,

Ambassador.

The Committee noted that the IAEA had not responded to the

letter, and so asked the Administration, in a Question for the

Record, to state the purpose of Ambassador Brill’s letter. The Administration replied:

The letter was sent as a U.S. initiative and not as a response to any request by an IAEA official. We wanted to

inform the IAEA explicitly and directly about the U.S. approach toward the Additional Protocol and the importance

of the National Security Exclusion, rather than just indirectly through the documents transmitting the Protocol to

the Senate. No official response, either written or oral, to

the April 30, 2002, letter from Ambassador Kenneth Brill

to IAEA Director General Mohamed ElBaradei was requested or received. There is no evidence of any negative

reaction. 27

Committee staff pursued this matter in discussions with IAEA

officials and representatives, both in Washington and at IAEA

Headquarters in Vienna. They, too, found no evidence of any negative reaction to Ambassador Brill’s letter. Since 1993, the only inspections conducted by the IAEA in the United States have been

those that the United States specifically requested, so as to document its handling of excess fissile material. The Committee believes that this practice is likely to continue. As the Administration

noted in response to a Committee Question for the Record, ‘‘The

IAEA is not expected to waste scarce resources . . . in a nuclearweapon state such as the United States.’’ 28

25

29Part IX, p. 109. 30 Ibid.

Given the importance of Ambassador Brill’s letter as a statement

of U.S. interpretation and intent, the Committee believes that the

Senate should formally recognize this letter as one of the

underpinnings of its advice and consent to ratification. Understanding (1) does this by stating the Senate’s understanding that

‘‘[i]mplementation of the Additional Protocol will conform to the

principles set forth in the letter.’’

Administration responses to other Committee Questions for the

Record and testimony before the Committee underscore Ambassador Brill’s point that U.S. adoption of the Additional Protocol is

intended to demonstrate U.S. leadership and enhance the capability of the IAEA in non-nuclear-weapons states. The United

States, consistent with its status as a nuclear weapon state party

to the NPT, will continue to have undeclared activities related to

its nuclear weapons complex. ‘‘It is not the purpose of Protocol implementation in nuclear weapons states to permit the IAEA to

verify the completeness of the state’s declaration’’ 29 because, as a

matter of fact, such states (indeed, the United States) will always

have incomplete declarations:

The primary purpose of the Additional Protocol in a nonnuclear-weapon state is to enable the IAEA to provide

some assurance about the absence of undeclared nuclear

activities in that state. This purpose does not apply to nuclear-weapon states, which are understood to have extensive nuclear activities not required to be declared to the

IAEA. 30

The United States will implement the Additional Protocol in a

manner consistent with the purposes for which the Additional Protocol exists in nuclear weapon states, accepting the entire text of

the Protocol to show support for its universal adoption, and applying it only to the extent it does not infringe on our right to have

undeclared activities as a nuclear-weapon state.

One issue that Ambassador Brill’s letter does not fully address

is that of wide-area environmental sampling under Article 9. Ambassador Brill’s letter notes that, with regard to site-specific environmental sampling:

In accordance with the [National Security Exclusion],

the United States will not allow location-specific environmental sampling with respect to locations, information,

and activities of direct national security significance to the

United 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.

The letter does not state a definitive U.S. position with regard to

wide-area environmental sampling, however, merely stating that,

‘‘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

26

31Part IX, p. 110. 32Part IX, pp. 110–111.

would need to propose to conduct wide-area environmental sampling in the United States.’’ The Committee understands that the IAEA’s Board of Governors

has not yet taken a decision with regard to the use of wide-area

sampling techniques because the methods and technology associated with such sampling have not yet evolved to the point of making it an effective safeguards tool. The Committee is also aware of

the potential utility of such sampling in a non-nuclear-weapon

state suspected of having undeclared activities. There would appear

to be no utility, however, in using such sampling in the United

States to determine if there are undeclared activities here since, as

a nuclear-weapon state, the United States will of course have

undeclared nuclear activities.

Another possibility is that the IAEA would wish to conduct widearea environmental sampling in the United States in order to test

equipment or techniques for later use in non-nuclear-weapon

states. The Committee expects that such a request would be granted only if the relevant U.S. Government agencies were certain that

it would not lead to the loss of information of direct national security significance, and it is unclear whether that standard could ever

be met. In response to Committee Questions for the Record, the Administration emphasized the need not only for the Board of Governors to approve wide-area environmental sampling as a safeguards technique, but also for consultation with the United States:

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

therefore agreement, between the IAEA and the United States.’’ 31

the Administration went on to note that the United Kingdom ‘‘accepted a limited version of Article 9 that states it may accept wide

area sampling if it were focused on detecting covert activities in

[non-nuclear-weapon states].’’ 32

The Committee supports wide-area environmental sampling as a

tool for use in non-nuclear-weapon states, but it is unclear what

specific procedural arrangements the United States would seek regarding the use of wide-area environmental sampling in this country. The Committee expects that, as in the application of the National Security Exclusion generally, the relevant Federal department or agency with national security equities in the area will still

have the power to determine the use of the National Security Exclusion should wide-area sampling raise a risk of disclosure of sensitive national security information.

Understanding (2). Notification to Congress of Added and Deleted

Locations.

When the Senate adopted a resolution of advice and consent to

the Voluntary Offer to accept IAEA safeguards, it included five understandings. One of those understandings stated:

That the President shall notify the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives of any proposed addition to the list, to be provided to the InterVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00026 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
27

33 ‘‘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 Attached Protocol, signed at Vienna on November 18, 1977,’’ Ex. B, Ninety-fifth Congress, Second session,

approved by the Senate on July 2, 1980. 34 Ibid.

national Atomic Energy Agency pursuant to Article 1(b) of

the Agreement, of nuclear facilities within the United

States eligible for International Atomic Energy Agency inspections, together with an explanation of the basis upon

which the determination was made that any such facility

did not have a direct national security significance, not

less than 60 days prior to such proposed addition being

provided to the International Atomic Energy Agency, during which period the Congress may disapprove such addition by joint resolution by reason of direct national security significance, under procedures identical to those provided for the consideration of resolutions pursuant to section 130 of the Atomic Energy Act of 1954 as amended. 33

The Committee recommends a similar notification provision concerning added and deleted locations under the Additional Protocol,

and the same consideration under expedited procedures for a resolution of disapproval of added locations as was included in the Senate’s advice and consent to the Voluntary Offer. For any locations

added to the list of locations to be declared to the IAEA, the understanding also calls for a certification that such addition shall not

adversely affect U.S. national security. The Committee understands

that for determinations concerning deleted locations that have a direct national security significance, notification under this understanding may have to come in classified form. The Committee did

not specify a period of time under subsection (B) for consideration

of such notifications, so long as the notification is provided to the

Congress before being provided to the IAEA, so as not to prevent

the United States from protecting the national security while meeting its obligations under the Protocol. The Committee also did not

include an identical 60-day prior notice requirement for added locations that was set in the Voluntary Offer resolution of ratification

because locations under the Additional Protocol will be provided in

an annual report that may well not be finalized until a short time

before the deadline for submission of that report.

Understanding (3). Protection of Classified Information.

Included in the Senate’s resolution of advice and consent to the

Voluntary Offer was an understanding regarding protection of classified information:

That the agreement shall not be construed to require the

communication to the International Atomic Energy Agency

of ‘‘Restricted Data’’ controlled by the provisions of the

Atomic Energy Act of 1954, as amended, including data

concerning the design, manufacture, or utilization of atomic weapons. 34

The Committee recommends that a nearly identical provision be included in the resolution of ratification for the Additional Protocol.

28

35Part IX, p. 95. 36Treaty Doc. 103–21, approved by the Senate on April 24, 1997.

Understanding (4). Protection of Confidential Information.

The protection of confidential business information is an important duty of both the United States Government and the Senate.

The Committee notes that although Article 1 of the Additional Protocol affords the United States special rights to protect information

‘‘with direct national security significance,’’ the same is not true of

confidential business information. As Secretary Lichtenbaum noted,

‘‘In particular, the rights that we have under this treaty to minimize the burden and protect confidential information for industry

are rights that are available to other countries. So it’s not that we

have a right to minimize the burden or protect confidential information that they do not have.’’ 35

When the Senate passed its resolution of advice and consent to

ratification of the Convention on the Prohibition of Development,

Production, Stockpiling and Use of Chemical Weapons and on Their

Destruction (the CWC) 36 it included a condition on the protection

of confidential information:

PROTECTION OF CONFIDENTIAL INFORMATION—

(A) UNAUTHORIZED DISCLOSURE OF UNITED STATES BUSINESS IN- FORMATION.—Whenever the President determines that persuasive

information is available indicating that— (i) an officer or employee of the Organization has willfully

published, divulged, disclosed, or made known in any manner

or to any extent not authorized by the Convention any United

States confidential business information coming to him in the

course of his employment or official duties or by reason of any

examination or investigation of any return, report, or record

made to or filed with the Organization, or any officer or employee thereof, and

(ii) such practice or disclosure has resulted in financial losses

or damages to a United States person,

the President shall, within 30 days after the receipt of such information by the executive branch of Government, notify the Congress

in writing of such determination.

The Committee recommends that a nearly identical provision be included in the resolution of advice and consent to the Additional

Protocol.

The Committee does not recommend Understanding (4) because

of any concern with regard to IAEA protection of confidential information. In fact, the Committee has been informed that the IAEA

has a consistently positive record with regard to the handling of

both confidential and classified information obtained in the United

States. In addition, Article 15 of the Additional Protocol calls for

the IAEA to ‘‘maintain a stringent regime’’ to protect such information. In response to a Committee Question for the Record, the Administration provided information regarding that regime:

The new regime is substantially more detailed than

what existed previously. For example, the new regime includes penalties for IAEA staff found to be in breach of

their obligations, including potential exposure to civil and

29

37Part IX, p. 107. 38Part IX, p. 63.

criminal penalties and waiver by the Agency of legal immunities. The IAEA has continued to make regular reports

to the Board on its progress in implementing security improvements in such areas.

The United States has supported and participated in

IAEA’s efforts in this area. The United States, through its

voluntary contribution to the IAEA, has provided technical

assistance to the IAEA in improving information security

in the Department of Safeguards, including in its safeguards information systems. The IAEA has made substantial and steady progress in implementing the recommendations made. 37

When Committee staff visited the IAEA’s Headquarters in Vienna

and its Safeguards Analytical Laboratory in Seibersdorf, Austria,

they found that the IAEA goes to great lengths to ensure that it

maintains a proper chain of custody over information gained

through inspections, and also to minimize the risk that either its

own laboratory or cooperating national laboratories will know with

certainty the origin of the samples that they analyze.

Understanding (5). Report on Consultations Regarding Adoption of

Additional Protocols in Non-Nuclear Weapon States.

During briefings and the Committee’s hearing on the Additional

Protocol, officials stated on several occasions that the Administration intended to pursue, as a general policy, adoption of the Additional Protocol by all non-nuclear weapon states party to the NPT.

Acting Assistant Secretary of State Susan F. Burk testified: ‘‘Senate approval of the Additional Protocol will . . . greatly strengthen

our ability to promote universal adoption of the Model Additional

Protocol, a central goal of the President’s nonproliferation policy.’’

Ambassador Brooks testified that:

Achieving the widest possible international adherence to

an effective AP [Additional Protocol] materially serves U.S.

national security interests . . . The diplomatic reality is

that our support for the AP, and our agreement to accept

its implementation in the United States in a manner that

is appropriate to our status as a nuclear weapons state,

has been critical to getting the AP to where it is today.

One can only ponder the possible impact of failing to ratify

the U.S. AP, for example, on the effort to get Iran and

other countries of concern to implement their own Additional Protocols. 38

Ambassador Brooks also cited President Bush in this regard:

We seek universal acceptance of the Additional Protocol

in the international community as an important goal of

U.S. national security policy. As the President said in his

transmittal package to the Senate, ‘‘Adhering to the Additional Protocol will bolster U.S. efforts to strengthen nuclear safeguards and promote the nonproliferation of nuVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00029 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
30

39Part IX, p. 62. 40Part IX, p. 108. 41The White House, ‘‘President Announces New Measures to Counter the Threat of WMD,’’

Remarks by the President on Weapons of Mass Destruction Proliferation, Fort Lesley J.

McNair—National Defense University, Washington, D.C.’’, February 11, 2004, available at http:/

/www.whitehouse.gov/news/releases/2004/02/20040211-4.html.

clear weapons, which is the cornerstone of U.S. foreign and

national security policy.’’ 39

A logical question is how the United States will work to achieve

universal acceptance of the Additional Protocol. In response to a

Committee Question for the Record, the Administration stated

that:

Both when the United States signed its Additional Protocol in 1998, and when President Bush transmitted the

Additional Protocol to the Senate in May 2002, U.S. Embassies around the world were asked to press the host

countries to adopt the Additional Protocol. We have also

raised the issue at appropriate opportunities, such as Assistant Secretary [for Nonproliferation] John Wolf’s trip to

Argentina and Brazil in May 2003. Since September 2000,

when the IAEA adopted an Action Plan to promote adherence to safeguards agreements and Additional Protocols,

we have focused on supporting the IAEA’s outreach efforts.

We participated in IAEA regional outreach seminars in

Japan, Peru, Kazakhstan, South Africa, Malaysia, Romania and Uzbekistan and have provided voluntary contributions to support those and other IAEA efforts.

The United States has stated its strong support for universal adherence to the Additional Protocol. Achieving this

goal would be greatly facilitated by ratification of the U.S.

Additional Protocol, as signed. Should the Senate give its

advice and consent to ratification for the U.S. Additional

Protocol, we would initiate another outreach in diplomatic

channels to press states to sign and ratify Protocols. 40

On February 11, 2004, in a speech delivered at the National Defense University, President Bush increased the pressure on nonsignatory states. The President proposed ‘‘that by next year, only

states that have signed the Additional Protocol be allowed to import equipment for their civilian nuclear programs. Nations that

are serious about fighting proliferation will approve and implement

the Additional Protocol.’’ 41

The Committee believes that achievement of universal acceptance of the Additional Protocol will be neither quick nor easy. In

October 2003, in an article in The Economist, IAEA Director General Mohammed ElBaradei, noted how few members states have

actually completed additional protocols:

Fewer than 20% have finalised an additional protocol— endorsed in 1997 after the discovery of Iraq’s clandestine

nuclear programme—which gives the IAEA the authority

to inspect countries more broadly, particularly for

undeclared nuclear material and activities. . . . This sluggish performance on all fronts signals the need for a different approach. Reluctance by one party to fulfil its obliVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00030 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
31

42Mohammed ElBaradei, ‘‘Towards a Safer World,’’ The Economist, October 18, 2003. 43General Accounting Office, ‘‘Nuclear Nonproliferation: Uncertainties With Implementing

IAEA’s Strengthened Safeguards System,’’ GAO NSIAD-98-184, July 9, 1998. 44The International Atomic Energy Agency, ‘‘IAEA Board of Governors Recommends Landmark Budget Increase,’’ IAEA Press Release 2003/12, July 18, 2003, available at http://

www.iaea.org/NewsCenter/PressReleases/2003/prn0312.shtml. 45See section 1305 of P.L. 107–228, The Foreign Relations Authorization Act, Fiscal Year

2003.

gations breeds reluctance in others. Each discovery of a

clandestine programme makes us question whether more

exist. 42

Given the importance of universal adoption and adherence to the

Additional Protocol, to both the United States and the IAEA, the

Committee recommends an understanding requiring an annual report on U.S. measures taken in furtherance of universal adoption

and implementation of the Additional Protocol in non-nuclear

weapon states. Such a report will help Congress maintain the high

priority that this endeavor deserves.

Understanding (6). Report on U.S. Assistance to the Agency for the

Purpose of Additional Protocol Implementation and Verification

of Non-Nuclear Weapon States’ Obligations.

All of the work conducted by the IAEA in verification of existing

safeguards is carried out under a budget that, as one IAEA official

told Senate Foreign Relations Committee staff in February 2004,

‘‘is less than the budget for Vienna’s police department.’’ In 1985, the Geneva Group (the 14 largest contributors to the

United Nations) imposed a policy of ‘‘zero real growth’’ on the

IAEA’s budget, save for staff salaries and inflation. 43 This policy

was reversed by the IAEA’s Board of Governors in July 2003. Remarking on this that decision, Director General ElBaradei noted

that ‘‘The bulk of the increase goes to the verification programme,

because that programme has been experiencing the greatest demand for additional resources and has for years been the most

chronically under-funded.’’ 44

The Committee strongly supports the decision to end the zero

real growth policy, which is consistent with previously-enacted legislation. 45 As more non-nuclear weapon states adopt Additional

Protocols, however, the IAEA may require more financial resources

to carry out expanded inspections and verification activities in nonnuclear weapon states.

United States assistance, both in voluntary financial contributions above and beyond its assessed share of the IAEA regular

budget and in the provision of training and services, has been vital

to the success of the IAEA’s safeguards experts. Committee staff

who visited the IAEA’s Safeguards Analytical Laboratory found

that time after time its analysis depended upon equipment and

training provided by member states, and usually the United States.

Continued U.S. assistance to the IAEA’s safeguards mission will be

essential to maintaining that capability because states with covert

programs will continually improve their efforts to thwart IAEA

monitoring and inspections.

The Committee believes that continuing attention must be paid

both to the need for U.S. assistance to the IAEA and to the efficiency with which that assistance is used. The Committee therefore

32

46Treaty Doc. 107–7 at p. 4. 47Part IX, p. 111. 48 Ibid.

recommends an understanding requiring an annual report on all

assistance provided to the IAEA by the United States in order to

promote effective implementation of Additional Protocols in non-nuclear weapon states, and verification of such states’ compliance

with their obligations to the IAEA, and (for all but a few states)

under the NPT.

Understanding (7). Subsidiary Arrangements and Amendments.

The Committee notes that Article 13.a of the Additional Protocol

specifies that the United States has the right to enter into subsidiary arrangements with the IAEA on how measures laid down

in the Protocol are to be implemented. The Committee also notes

that under Article 16.b changes may be made to the lists of equipment and articles in Annexes I and II of the Additional Protocol by

decision of the IAEA’s Board of Governors. The Administration

transmitted to the Senate, with the Additional Protocol and its Annexes, an initial Subsidiary Arrangement, signed at Vienna on

June 12, 1998, regarding measures for managed access under Article 1. 46

The Committee accepts the Administration position that the Subsidiary Arrangement transmitted to the Senate should not be subject to the Senate’s advice and consent. In response to a Committee

Question for the Record regarding Article 13, the Administration

stated:

Subsidiary arrangements under the Additional Protocol,

as with those that are periodically negotiated under the

existing Safeguards Agreement, are of a detailed technical

character and do not change the rights and obligations of

the Parties. As such, Subsidiary Arrangements have not

been submitted to the Senate for its approval. 47

The Committee understands this response, but notes that this

first Subsidiary Arrangement is broadly applicable to use of managed access under Article 1. The Committee recommends that the

resolution of ratification specify the Senate’s understanding that

this Subsidiary Arrangement contains an ‘‘illustrative, rather than

an exhaustive list of U.S. managed access measures.’’ Further subsidiary arrangements are, of course, possible. the Administration’s response to the Committee Question for the Record

stated:

No other subsidiary arrangements have been signed or

negotiated, nor is the Administration negotiating any such

agreement. The Administration is exploring the development of General Part Subsidiary Arrangements, which

could include technical matters such as describing reporting formats, to facilitate implementation of the Additional

Protocol. 48

The Committee recommends that the resolution of ratification include an understanding that future subsidiary arrangements shall

be notified to the appropriate Committees of Congress, so that they

33

49 Ibid.

can keep abreast of developments. The Committee recommends

similarly requiring notification of any amendments under Article

16.

The Committee also notes that the Administration does not rule

out the need for Senate advice and consent to a future subsidiary

arrangement. In its response to a Committee Question for the

Record, the Administration stated: ‘‘The normal factors for determining whether an agreement is subject to Senate advice and consent would be applied to future subsidiary arrangements.’’ 49

Understanding (8). Amendments to the Protocol.

Amendments to the Additional Protocol can be of two sorts:

amendments to the text of the Additional Protocol; or amendments

to the lists contained in the Annexes to the Additional Protocol.

Amendments to the Additional Protocol are governed by Articles

23–26 of the Safeguards Agreement between the United States and

the IAEA, signed in 1977 and entered into force in 1980. Article 1.a

of the Additional Protocol makes clear that provisions of the Safeguards Agreement remain in force, unless they are contradicted by

the Additional Protocol. As the Additional Protocol does not address

amendments to its text, the relevant provisions of the underlying

Safeguards Protocol will continue to apply.

Article 23(b) of the Safeguards Agreement states: ‘‘All Amendments shall require the agreement of the United States and the

Agency.’’ Amendments to treaties are ratified (just as treaties are

ratified in the first instance) ‘‘by and with the Advice and Consent

of the Senate,’’ pursuant to Article II, Section 2, Clause 2 of the

United States Constitution. The Committee intends that Understanding (8) serve, in part, to remind the executive branch of this

constitutional requirement.

Article 16 of the Additional Protocol sets forth the procedure for

amendments to the lists in Annex I and Annex II of the Additional

Protocol. Annex I contains a list of activities on which the United

States will have to report annually concerning the scope of those

activities, pursuant to Article 2.a.(iv) of the Additional Protocol.

Annex II contains a list of equipment and material, the import and

export of which will be subject to annual reporting by the United

States, pursuant to Article 2.a.(ix) of the Additional Protocol.

Article 16.b states that the lists in Annex I and Annex II ‘‘may

be amended by the Board [of Governors of the IAEA] upon the advice of an open-ended working group of experts established by the

Board. Any such amendment shall take effect four months after its

adoption by the Board.’’ In practice, the IAEA Board of Governors

takes nearly all actions on the basis of consensus; but it has the

power to take action either by majority vote or (for matters that

a majority of the Board conclude are major issues) by a two-thirds

vote. While the United States will always be a member of the

Board, it does not have a veto over the Board’s actions if members

decide not to proceed on the basis of consensus. There is no provision, moreover, for U.S. ratification of amendments to the lists in

Annex I and Annex II. This fact, combined with the short time period between adoption of the amendment and entry into force,

34

50This analysis draws upon Treaties and Other International Agreements: The Role of the

United States Senate, a study prepared for the Committee by the Congressional Research Service of the Library of Congress, S. Prt. 106–71 (2001), pp. 181–183. In addition, some of the treaties cited are drawn from David A. Koplow, ‘‘When is an Amendment Not an Amendment?:

Modification of Arms Control Agreements Without the Senate,’’ University of Chicago Law Review, Vol. 59 (Summer 1992), pp. 981–1071.

means that the Senate may not be in a position to exercise its prerogative to give advice and consent to such amendments prior to

their entry into force.

There is precedent for the Senate approving treaties that allow

for technical modifications by such a ‘‘tacit agreement’’ process. 50

Due, perhaps, to their complexity and technical specificity, a number of arms control and environmental agreements establish processes for their own modification which do not require further Senate involvement. The modifications allowed typically are described

as not rising to the level of an amendment of the treaties; but,

nonetheless, the processes permit the treaty regime to evolve in

some respects without subsequent Senate approval.

Arms control treaties that allow for technical modifications include the Intermediate Nuclear Forces (INF) Treaty, the Protocol

to the Threshold Test-Ban Treaty (TTBT), the Treaty on Conventional Armed Forces in Europe (CFE), the first START Treaty, and

the Open Skies Treaty. Environmental treaties with similar provisions include the United States-Japan Convention for the Protection of Migratory Birds, the United States-Canada Treaty on Pacific Salmon, and the Montreal Protocol on Substances that Deplete

the Ozone Layer.

Some agreements explicitly permit certain technical modifications to become effective for all parties even absent unanimous

agreement. These include the Montreal Protocol on Substances that

Deplete the Ozone Layer, the International Convention on Safety

of Life at Sea, the Convention on Facilitation of International Maritime Traffic, the International Hydrographic Organization Convention, the Protocol to the Madrid Agreement Concerning the International Registration of Marks, and the Chemical Weapons Convention.

The Senate, in giving its advice and consent to the treaties which

contain these various processes for modification, has not required

modifications made to these treaties under such processes to be referred to the Senate for its advice and consent prior to their coming

into force for the United States. Rather, in giving its advice and

consent to these treaties in the first instance, the Senate has also

given its consent in advance to the modifications adopted pursuant

to those processes. The tacit amendment process has given the Senate some concern, however, and at times the Senate has required,

or received assurances of, prior notice of proposed modifications before the executive branch accepted their inclusion in such treaties.

The Senate has also at times specifically limited its acceptance of

future tacit amendments to those of a technical or administrative

nature.

Article 16 of the Additional Protocol appears to be similarly intended, as the Administration’s Article-by-Article Analysis of the

Protocol states that the Annexes ‘‘provide technical definitions.’’

The Committee intends that Understanding (8) serve, in part, as

a reminder to the executive branch that amendments to the lists

35

in Annex I and Annex II are to be ‘‘technical’’ rather than a means

to achieve major substantive change in the Additional Protocol regime.

The Committee notes that the substantive purpose of Article 16,

which was strongly supported by the United States when the

Model Additional Protocol was being negotiated, is to permit expansion of Additional Protocol reporting requirements if a new approach to developing a nuclear weapons capability should arise.

The Additional Protocol could be seriously undermined if, in such

a case, a state engaged in illegal activity were able to block, or to

exempt itself from a decision to expand the reporting requirement.

The Committee also notes that, in practice, the list in Annex II will

be the ‘‘trigger list’’ maintained by the Nuclear Suppliers Group,

which adds items only by consensus; so no amendment to that list

will occur without U.S. support, or at least acquiescence.

The Committee believes that the Senate has the authority to approve a treaty that provides for technical and administrative modifications to be adopted by a process that does not give the United

States a veto power over those modifications. The Committee emphasizes that such provisions should be limited, as here, to technical or administrative modifications. Of course, it reserves the

right to accept or reject such provisions in future treaties. The

Committee encourages the executive branch to consult closely with

the Committee during the course of treaty negotiations when such

provisions are contemplated for inclusion in future agreements.

VI. VIEWS OF THE ARMED SERVICES COMMITTEE

Consistent with long-standing practice, the Senate Armed Services Committee has submitted a letter detailing the views of the

Armed Services Committee on the Additional Protocol. Chairman

John Warner and Ranking Member Carl Levin have submitted the

following letter to the Committee, which it is pleased to include in

this report.

UNITED STATES SENATE,

Committee on Armed Services.

February 24, 2004.

Hon. RICHARD G. LUGAR, Chairman,

Hon. JOSEPH R. BIDEN, JR., Ranking Member,

Committee on Foreign Relations,

United States Senate,

Washington, D.C. 20510.

Dear Senator Lugar and Senator Biden:

Traditionally, the Senate Armed Services Committee has provided to the Senate Foreign Relations Committee its views on the

military implications of national security treaties. We are writing

to express our views concerning the military implications of 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 on June 12, 1998 (the ‘‘Additional Protocol’’).

36

We support ratification of the Additional Protocol because we believe that it will contribute to the nuclear non-proliferation objectives of the United States, while providing for the full protection

of information and facilities of direct national security significance

to the United States. As President Bush stated in his letter of

transmittal: ‘‘Adhering to the Additional Protocol will bolster U.S.

efforts to strengthen nuclear safeguards and promote the non-proliferation of nuclear weapons, which is a cornerstone of U.S. foreign

and national security policy.’’ The Senate Armed Services Committee has a tradition of strong support for U.S. non-proliferation

efforts. Adoption of the Additional Protocol is consistent with that

tradition.

At the end of the Persian Gulf War in 1991, the world learned

that Iraq had an advanced clandestine program to develop nuclear

weapons. To increase the capability of the International Atomic Energy Agency (IAEA) to detect such clandestine nuclear programs,

the international community negotiated a Model Additional Protocol to strengthen the IAEA’s nuclear safeguards system. The

IAEA uses the Model Additional Protocol for negotiation and conclusion of Additional Protocols that amend and strengthen states’ existing comprehensive safeguards agreements. These Additional

Protocols broaden the information states are required to give to the

IAEA and provide additional access rights for IAEA inspectors to

verify those declarations when necessary. Non-nuclear weapon

states must incorporate all the measures in the Model Additional

Protocol in negotiating their additional protocols. Nuclear weapon

states and countries not party to the Treaty on the Non-Proliferation of Nuclear Weapons (the NPT), however, are free to choose

among or limit the application of the provisions of the Model Additional Protocol, since these nations have not made a commitment

to place all nuclear activities under safeguards. Thus far, 83 nations have negotiated such Additional Protocols with the IAEA, and

38 of those nations have brought their Additional Protocols into

force.

The U.S. Additional Protocol is a bilateral treaty that would supplement and amend the verification arrangements under the existing 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,

which entered into force on December 9, 1980.

The NPT requires non-nuclear-weapon states parties to accept

safeguards on their nuclear activities. The United States, as a nuclear-weapon state party to the NPT, is not obligated to accept

IAEA safeguards on its nuclear activities. Nonetheless, it has been

the policy of the United States since 1967 to permit the application

of safeguards to its nuclear facilities, excluding only those of direct

national security significance.

The Additional Protocol similarly allows the United States to exclude the application of its provisions in instances where the

United States decides that the provisions would result in access by

the IAEA to activities with direct national security significance to

the United States, or access to locations or information associated

with such activities. By submitting itself to the same safeguards on

all of its civil nuclear activities that non-nuclear-weapon states parVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00036 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
37

ties to the NPT are subject to, the United States intends to demonstrate that adherence to the Model Additional Protocol does not

place other countries at a commercial disadvantage. U.S. acceptance of the Additional Protocol is consistent with the United States’

longstanding record of voluntary acceptance of nuclear safeguards

and greatly strengthens our ability to promote universal adoption

of the Model Additional Protocol, a central goal of U.S. non-proliferation policy.

Because this Committee has oversight responsibilities for the Department of Defense and the Department of Energy nuclear weapons complex, we carefully considered whether the Additional Protocol could and would be implemented in a fashion that is fully consistent with the need to protect national security information. We

believe that two features of the Additional Protocol—the right to

invoke the National Security Exclusion and the right to manage access to sensitive U.S. locations—adequately address the security

concerns of our Committee.

During your Committee’s hearing of January 29, 2004, on the

Additional Protocol, the Department of Defense and Department of

Energy witnesses provided testimony regarding the protection of

national security information and the impact of the Additional Protocol on Department of Energy (DOE) and Department of Defense

(DoD) facilities.

Regarding the protection of national security information at DOE

facilities, National Nuclear Security Administrator at the Department of Energy, Ambassador Linton F. Brooks, testified:

At the same time that the Additional Protocol provides

the IAEA with important tools to ferret out undeclared

military activities in non-nuclear weapons states, the Additional Protocol also includes a set of ‘‘robust mechanisms’’

by which DOE can protect its commercially sensitive, export-controlled, and classified assets. The first method is

managed access, also referred to as ‘‘Article 7 managed access.’’ This managed access involves a wide range of measures, such as shrouding, closing doors, or turning off computers and other equipment to prevent IAEA inspectors

from coming into contact with ‘‘proliferation sensitive information or proprietary or commercially sensitive information.’’ Second, the United States can unilaterally, and

without explanation, invoke a National Security Exclusion

(NSE) under Article 1 that enables the U.S. not to declare

or allow IAEA complementary access to ‘‘activities with direct national security significance to the United States or

to locations or information associated with such activities.’’

Third, under Article I, the United States also has the

right to use managed access associated with the NSE.

Managed access under Article 1 is more robust than the

Article 7 managed access. We would employ this managed

access under Article 1 of the Additional Protocol only

where our security evaluation shows that such managed

access would mitigate, in a manner acceptable to us, any

risk of inadvertent disclosure of national security activities

or information to the inspector. I would reiterate that the

38

use of the NSE or managed access under the NSE is entirely unilateral, and the IAEA has no right to challenge

or question the U.S. invocation of the National Security

Exclusion. With managed access and the National Security

Exclusion rights combined with Additional Protocol-specific

security plans and DOE’s past experience with IAEA inspections, DOE is confident that it can fully manage the

risks associated with the Additional Protocol.

Regarding the protection of national security information at DoD

facilities, Deputy Assistant Secretary of Defense for Negotiations

Policy, Mark T. Esper testified:

The Administration fully recognizes that adopting an instrument designed to detect the diversion of nuclear material in non-nuclear weapons states is not without risk. The

potential intrusiveness of the Additional Protocol both in

terms of declaring activities and allowing access by inspectors is significant. However, we are confident that liberal

use of the protections afforded the United States by way

of the National Security Exclusion and the use of managed

access to protect sensitive information and activities can

mitigate this risk—The United States will make full and

repeated use of these provisions to protect information, locations, and activities of direct national security significance . . . The National Security Exclusion is a critical

protection for the United States. Under this provision, the

United States can exclude information and activities from

declarations and deny access to IAEA inspectors anytime,

anyplace.

In considering the Additional Protocol, the Committee focused

primarily on national security concerns, but our oversight responsibilities also required us to seek information regarding the costs

associated with implementing the Additional Protocol. Regarding

costs to DOE, Administrator Brooks testified: ‘‘In addition to the

cost in time and effort, there will be a financial cost to implement

the Additional Protocol. Current budget estimates indicate that the

Department will require approximately $3.5 million for headquarters, including the funds already allocated, to prepare the complex. In addition, the up-front preparation costs for each site, including the cost of comprehensive vulnerability and security assessments will be an estimated $220 thousand per site, for a total of

approximately $10 million.’’

Mr. Esper did not explicitly address the financial costs DoD may

incur in connection with the Additional Protocol in his testimony

before your Committee. However, DoD officials have subsequently

indicated to our Committee that the Department currently estimates that costs in the first four years after the Protocol is ratified

could be in the range of $13-18 million annually, and $6–9 million

annually beginning in year five. These costs would ensue primarily

from the need to conduct vulnerability assessments at DoD sites or

at DOE or contractor sites where DOD is engaged.

The Committee views these as reasonable and appropriate costs,

in light of the expected non-proliferation benefits that will result

from U.S. ratification of the Additional Protocol.

39

In sum, we found the testimony of Administration witnesses compelling both in making the case for the non-proliferation benefits

of adopting the Additional Protocol due to the increased transparency and enhanced inspection rights such Additional Protocols

will provide to the IAEA in non-nuclear weapon states, and in

making clear that the provisions for a National Security Exclusion

and for managed access to sensitive locations will ensure that risks

to the United States are mitigated and U.S. national security information will be protected. The Committee expects the executive

branch to make full use of these features, as necessary, to protect

critical national security information. We believe the resolution of

ratification should make clear that it is the intent of the United

States to make full use of these provisions for a National Security

Exclusion and for managed access in order to protect information,

locations, and activities of direct national security significance to

the United States.

Several administration witnesses, including Mr. Esper, also

noted the interest of the United States in protecting information

reported to or otherwise acquired by the United States Government

in implementing the Additional Protocol from disclosure under the

Freedom of Information Act as proposed in the draft implementing

legislation. We believe that the provision included in the draft implementing legislation exempting this non-governmental information from disclosure is important and should be included in the

final implementing legislation.

Based on the testimony of administration witnesses, and subsequent analysis, we believe the Additional Protocol advances the national security interests of the United States and deserves the Senate’s support. U.S. ratification of the Protocol will demonstrate the

United States’ continued leadership in, and commitment to, nonproliferation. Adoption of the Additional Protocol by the United

States will facilitate adoption of the Model Protocol by non-nuclear

weapon states and thus will provide the IAEA an important tool

to help detect and deter proliferation of the technology and materiel needed for nuclear weapons. We are convinced that adequate

protections have been incorporated into the Protocol signed by the

United States to allow the United States to prevent the compromise of sensitive activities and information.

We ask your consideration of our views as you draft the resolution of ratification and the implementing legislation for this Protocol, and ask that this letter be included in the official report of

your Committee’s consideration of the Additional Protocol. We appreciate the opportunity to share our views with you.

Sincerely,

JOHN WARNER,

Chairman.

CARL LEVIN,

Ranking Member.

40

VII. CBO COST ESTIMATE

U.S. SENATE,

COMMITTEE ON FOREIGN RELATIONS,

Washington, DC.

November 10, 2003.

Dr. DOUGLAS HOLTZ-EAKIN, Director,

Congressional Budget Office,

Washington, DC.

Dear Dr. Holtz-Eakin:

As the Committee on Foreign Relations prepares to begin its consideration of the Protocol to the Agreement of the International

Atomic Energy Agency (IAEA) Regarding Safeguards in the United

States (the Additional Protocol), which the President submitted to

the Senate on May 9, 2002 for its advice and consent to ratification, we ask for your assistance in evaluating the Additional Protocol. In order to help the Committee during its consideration of

this agreement, the Committee requests that the Congressional

Budget Office conduct an assessment of the costs associated with

the implementation of the Additional Protocol for inclusion in its

report on this agreement.

The Additional Protocol provides for augmented inspections and

broader requirements on parties to the Treaty on the Nonproliferation of Nuclear Weapons (NPT). Since the 1991 Persian Gulf War,

and the revelations about the ability of non-nuclear weapons states

(NNWS) to carry out clandestine nuclear activities that may lead

to the development of nuclear weapons under existing safeguard

arrangements, the IAEA has been negotiating with parties to the

NPT to implement improved inspections and declarations through

adoption of model or additional protocols. Broadly, a model/additional protocol would require states to make more extensive declarations concerning their presumably peaceful nuclear activities

and provide the IAEA with more intrusive inspection rights.

The United States, as a declared nuclear-weapon state (NWS), is

not obligated to accept IAEA safeguards on its nuclear activities,

and also under its Additional Protocol will have the right to exclude nuclear facilities and activities of direct national security significance. The Committee has been informed by the Administration

that the likelihood of there actually being an inspection of U.S. facilities under its Additional Protocol is very low. Nevertheless, important questions pertaining to the cost of conducting inspections

in the United States, and in other NWS and NNWS, remain. I have

enclosed a list of such questions with this letter and hope that your

analysis will be able to help the Committee answer many of them.

I look forward to receiving your analysis early in 2004 so that

the Committee can move forward with its recommendations regarding action on the Additional Protocol in the early part of 2004.

If you or your staff have any questions concerning this request,

please contact the Committee’s Staff Director, Kenneth A. Myers,

Jr., or Committee staff members Kenneth A. Myers, III, and Thomas C. Moore, at (202) 224–4651. Additionally, my staff are ready to

meet with representatives from the Defense, International Affairs,

41

and Veterans’ Affairs Cost Estimate Unit of the Budget Analysis

Division to discuss this request.

Sincerely,

RICHARD G. LUGAR, Chairman.

Enclosures (1)

QUESTIONS CONCERNING COSTS ASSOCIATED WITH U.S. AND IAEA IMPLEMENTATION OF THE ADDITIONAL PROTOCOL WITH THE UNITED

STATES

1. Does the CBO concur with the IAEA’s assessment of the costs

that will be incurred in order for it to carry out additional inspections under Model Aditional Protocols either in the United States

or in other member states?

2. Would the inspections carried out under the Additional Protocol with the United States, or with other parties to the NPT

(NWS or NNWS), require increases in the US annual contribution

to the IAEA’s safeguards budget?

3. Does the U.S. Government have in place all needed staff, facilities, and adequate budget resources such that, if, under the unlikely scenario that an Additional Protocol inspection were carried

out in the United States in the next six months, such inspections

could be adequately supported and U.S. national security information be protected?

4. A key contention of the IAEA is that any additional costs

needed to carry out inspections under Additional Protocols would

be offset by efficiencies gained in safeguard operations. Does the

CBO concur?

5. Does the IAEA have in place necessary arrangements to:

a. Identify the total resource requirements for implementing

new inspections;

b. Provide an implementation schedule, with metrics and

equipment, to carry out additional inspections and accurate

costs for associated equipment;

c. Compose a schedule and prioritize countries with a model/

additional protocol in force where inspections would need to be

conducted.

6. What impact, if any, will the IAEA Board of Governor’s decision of July 2003 to reverse the Agency’s policy of zero real growth

in its budget have on the ability of the Agency to carry out inspections under Additional Protocols with member states?

42

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC.

March 5, 2004.

Hon. RICHARD G. LUGAR, Chairman,

Committee on Foreign Relations,

United States Senate,

Washington, DC.

Dear Mr. Chairman:

In response to your request, the Congressional Budget Office has

prepared the attached analysis of the costs associated with ratifying the Protocol Additional to the Agreement Between the United

States of America and the International Atomic Energy Agency Regarding Safeguards in the United States (Treaty Document 107–7).

CBO estimates that one-time costs to the U.S. government for implementing the Additional Protocol would total between $20 million

and $30 million, and recurring costs would total between $10 million and $15 million a year. Those costs would come from appropriated funds. CBO does not anticipate that any direct spending

would result from ratification of the protocol.

If you would like further information about this analysis, we

would be pleased to provide it. The CBO staff contact is Raymond

J. Hall.

Sincerely,

DOUGLAS HOLTZ-EAKIN,

Director.

Attachment.

The Cost of Implementing the Additional Protocol to the Treaty on

the Non-Proliferation of Nuclear Weapons

SUMMARY

On June 12, 1998, the United States signed the Protocol Additional to the Agreement Between the United States of America and

the International Atomic Energy Agency (IAEA) Regarding Safeguards in the United States (commonly referred to as the Additional Protocol). The Additional Protocol is a bilateral agreement

that would supplement and amend the verification arrangements

that exist under the current agreement between the United States

and the IAEA. The IAEA operates under the auspices of the United

Nations and serves as the global focal point for counterproliferation

activities.

All 135 member countries of the IAEA, including the United

States, bear the direct costs for financing the IAEA’s operations.

The IAEA budget for 2004 totals $385 million, with the likely contribution from the United States totaling $118 million. The IAEA

budget pays for several activities, including safeguard programs

that verify through an inspection system that countries comply

with their commitments to use nuclear material and facilities only

for peaceful purposes. About $160 million of the $385 million budget has been allocated to those safeguard programs—for the salaries

43

of about 230 inspectors and 200 administrative personnel, the cost

of conducting roughly 900 inspections worldwide each year, and the

cost of purchasing safeguard equipment.

Implementing the Additional Protocol in the United States would

increase costs to the federal government in two ways, the Congressional Budget Office (CBO) estimates. First, the IAEA would incur

costs to inspect additional facilities, which would most likely be

borne by the United States. On the basis of information provided

by the IAEA, CBO estimates that those costs would be about

$240,000 a year. Second, CBO estimates that several U.S. agencies

would incur costs to implement the new safeguard measures required by the Additional Protocol. On the basis of data provided by

those agencies, CBO estimates that one-time start-up costs in 2005

would total between $20 million and $30 million, and recurring

costs thereafter would total between $10 million and $15 million a

year. Most of those costs would be associated with protecting national security interests and helping to protect companies’ proprietary information.

CBO also examined the potential impact on U.S. payments to the

IAEA if the agency implemented additional protocols with other

member countries. CBO expects that implementing the Additional

Protocol with other member countries would increase the IAEA’s

operating costs. Whether those additional costs affected U.S. payments to the IAEA would depend on how those costs were paid for,

however. If host countries fully reimbursed the IAEA for the costs

of the additional inspections, U.S. payments to the agency would

not increase. If countries failed to fully reimburse the IAEA for

those inspections, the agency would need to include the costs in its

regular budget or solicit additional voluntary contributions. The

IAEA Board of Governors recently approved a $20 million increase

in the agency’s regular budget for 2004 and plans to increase that budget by another $5 million by 2007. CBO estimates that the U.S.

share of that increase will total about $6 million a year. The IAEA

hopes that the budget increases will cover the costs of the additional inspections outside the United States, but that outcome is

not assured because the number of additional inspections that

might be necessary is very uncertain.

Finally, CBO examined the ability of the U.S. government to support the Additional Protocol. On the basis of information from the

State Department and other U.S. agencies, CBO believes that the

United States could provide all needed staff and adequate budget

resources to support the IAEA inspections that are likely under the

Additional Protocol and to protect U.S. national security interests.

Although CBO believes that the IAEA is ready to implement the

broader safeguard measures in the United States, it has no basis

for determining the IAEA’s readiness to implement those measures

in other countries.

THE IAEA AND THE ESTABLISHMENT OF INTERNATIONAL SAFEGUARDS

The International Atomic Energy Agency was created in 1957

and is an affiliated agency of the United Nations that serves as the

global headquarters for counterproliferation activities.

By 1964, five countries—the United States, Russia, the United

Kingdom, France, and China—had acquired nuclear weapons. The

44

United States and many other U.N. members were concerned that

the number of countries with nuclear weapons could increase to

around 30 by the 1980s. Those fears led to growing support for legally binding, international commitments and comprehensive safeguards to stop the further spread of nuclear weapons and to work

toward their eventual elimination.

As a result, the Nuclear Non-Proliferation Treaty (NPT) was

adopted in 1968 with the aims of preventing the spread of nuclear

weapons and weapon technology, fostering the peaceful uses of nuclear energy, and furthering the goal of achieving general and complete disarmament. Today, nearly every country in the world is a

signatory to the NPT. (Exceptions are India, Israel, and Pakistan,

which never signed the treaty, and North Korea, which recently

withdrew from the treaty.)

Every signatory of the NPT that does not have nuclear weapons

is required to conclude a comprehensive safeguard agreement with

the IAEA. Today, nearly all countries have done so, including the

United States and the other four nations that possess nuclear

weapons, which have agreed to accept safeguards on certain peaceful nuclear activities.

NPT AND THE IAEA SAFEGUARDS IN THE UNITED STATES

The IAEA safeguards are a set of technical measures and activities by which the agency seeks to verify that nuclear material identified by each country is not diverted to nuclear weapons. Those

safeguard measures include using physical barriers to control access to and the movement of nuclear material, using cameras to detect the movement of nuclear material, and conducting on-site inspections.

Under the terms of the NPT, the United States, Russia, the

United Kingdom, France, and China are not subject to IAEA inspections. Instead, they voluntarily submit to inspections as a demonstration of cooperation with the IAEA and a show of support for

safeguards. Since 1967, the United States has permitted inspections of its nuclear facilities—both public and private—excluding

only those with direct national security significance. The existing

safeguard agreement between the IAEA and the United States

(sometimes called the Voluntary Offer) has been in effect since

1980.

Under the Voluntary Offer, the United States provided a list of

roughly 245 commercial and governmental facilities that would be

made available for IAEA inspections. All sites under the jurisdiction of the Department of Defense (DoD) were exempted from those

inspections under National Security Exclusions. Since 1981, the

IAEA has inspected 19 U.S. nuclear facilities: six civil nuclear reactors, six fuel-fabrication plants, six Department of Energy (DOE)

facilities, and one additional site. In recent years, the IAEA has inspected four facilities that hold or process nuclear materials in excess of defense needs—the Y–12 National Security Complex in Oak

Ridge, Tennessee; the Savannah River Site near Aiken, South

Carolina; the Hanford Site in southeastern Washington State; and

the BWX Technologies facility in Lynchburg, Virginia.

45

1The nuclear fuel cycle refers to the series of steps that uranium goes through to be processed

into an efficient fuel for use in applications such as the generation of electricity and in weapons.

THE MODEL ADDITIONAL PROTOCOL

Most countries abide by their commitments to the IAEA and the

NPT, but the IAEA safeguards attempt to also deal with those that

do not. In the aftermath of the 1990 Gulf War, it became clear that

Iraq’s nuclear program was more advanced than had been previously assessed through regular IAEA inspections of declared facilities. That revelation pointed to important limitations of the safeguard agreements in place at the time. Those agreements focused

on verifying declared nuclear material and activities rather than on

addressing undeclared nuclear activities. Although the IAEA has

taken steps to address those undeclared activities, continued shortcomings have led the United States to propose, and the international community to negotiate, measures to strengthen safeguards, including development of the Model Additional Protocol.

That protocol forms the basis for the Additional Protocol to the

Treaty on the Non-Proliferation of Nuclear Weapons Between the

United States and the IAEA.

The objective of the Model Additional Protocol is to verify the absence of undeclared nuclear activities in countries that do not have

nuclear weapons. The Model Additional Protocol gives IAEA inspectors broader access to information about member countries’ nuclear

programs and broader physical access to both declared and

undeclared locations. Under the protocol, countries not possessing

nuclear weapons must provide declarations about all phases of

their civil nuclear fuel cycle and related research and development. 1 They must also provide declarations about other locations

where nuclear material intended for peaceful purposes is present

and about the manufacture and export of materials, equipment,

and facilities especially designed for nuclear use. That model protocol is the first major change to the IAEA safeguard system in 25

years.

Today, 78 countries have signed a Model Additional Protocol with

the IAEA. The agency’s goal is to have additional protocols signed

with the remaining countries by 2005.

THE ADDITIONAL PROTOCOL BETWEEN THE UNITED STATES

AND THE IAEA

The U.S. Additional Protocol is based on the Model Additional

Protocol but has some added features. Like the previous safeguard

agreement, it exempts locations and activities of direct national security significance to the United States. In addition, the U.S. Additional Protocol protects commercial interests by restricting access

to companies’ confidential information.

In implementing the U.S. Additional Protocol, the U.S. government would initially provide the IAEA with a list of both public

and private facilities that are declared sites under the protocol and,

therefore, subject to inspection. Those sites would include private

nuclear reactors, commercial facilities that manufacture parts used

in the production of nuclear reactors, facilities that enrich or convert uranium, and universities that are conducting nuclear research. According to the Department of State, recent estimates

46

place the potential number of sites that could be subject to the

IAEA safeguards under the Additional Protocol at about 1,775.

(About 1,000 of those sites are abandoned uranium ore mines,

which would probably not be inspected.) The United States would

be required to provide that list to the IAEA no more than 180 days

after the United States declared that the Additional Protocol would

take effect.

THE IAEA BUDGET

The International Atomic Energy Agency prepares a regular

budget each year to fund its programs. Every member country contributes to the regular budget based on an agreed assessment percentage. The IAEA also funds its programs through voluntary contributions from some countries, including the United States. Funding for the IAEA’s programs provided though both its regular budg- et and voluntary contributions has increased from about $290 million in 1995 to $385 million in 2004. Using information provided

by the IAEA and the State Department, CBO estimates that the

IAEA will spend about $160 million (or about 40 percent) of its

$385 million budget on safeguard programs in 2004.

The IAEA’s regular budget, which pays for safeguard costs along

with the costs of science, safety, health, and environment programs, has grown from $205 million in 1995 to $245 million in

2003 because of agreements between the agency and its member

countries to maintain an almost ‘‘zero-real-growth’’ budget over

that period. Under that policy, the IAEA could only increase its

budgets from year to year to adjust for the impact of inflation on

such items as salaries and purchases. As a result, the agency has

grown more dependent on voluntary contributions. Those contributions increased from about $87 million in 1995 to an estimated

$120 million in 2004, primarily to support rising costs in the safeguard programs.

In light of the expansion of the IAEA’s safeguards over the past

10 years, the agency’s Board of Governors approved a real increase in the regular budget beginning in 2004. The budget rose to $265

million in 2004 and will increase by another $5 million (to $270

million) by 2007. According to the IAEA, about $19 million of that

increase will be allocated to safeguard programs.

U.S. SPENDING FOR THE IAEA

The U.S. government provides funds in support of the IAEA’s activities in three ways. First, since the IAEA is an affiliated agency

of the United Nations, the United States makes payments toward

the IAEA’s regular budget as a member of the United Nations. Second, the United States makes voluntary contributions to the IAEA

to help the agency meet its safeguard commitments. Finally, the

U.S. Congress appropriates funds to federal agencies to pay for programs that support the IAEA’s activities.

THE U.S. SHARE OF THE IAEA’S REGULAR BUDGET

Historically, the United States has paid about 26 percent of the

IAEA’s regular budget. That share amounts to $68 million in 2004.

The U.S. share of the IAEA’s regular budget is paid from the

‘‘Contributions to International Organizations’ account in budget

47

function 150 (international affairs), which is funded through annual appropriations to the State Department. Under a deferredpayment policy that has been in effect since the 1980s, the United

States will use fiscal year 2005 appropriations to pay its 2004 assessment. the Administration’s 2005 budget requests about $69

million for that assessment’slightly higher than the IAEA assessment of $68 million. Such differences arise because of varying assumptions about exchange rates.

THE U.S. VOLUNTARY CONTRIBUTION

The United States has long been the largest contributor to the

IAEA’s budget. Voluntary contributions to the agency from all nations totaled about $120 million in 2003. Historically, the U.S. voluntary contribution has averaged about 45 percent of the IAEA’s

total voluntary contributions.

For 2004, the U.S. voluntary contribution will total $53 million,

the amount appropriated by the Congress. That contribution is

made from the ‘‘Non-Proliferation, Antiterrorism, Demining, and

Related Projects’’ (NADR) account in budget function 150 (international affairs), which is funded through annual appropriations to

the State Department.

OTHER U.S. COSTS RELATED TO THE IAEA’S SAFEGUARD PROGRAMS

Besides contributing to the IAEA’s regular budget and making

additional voluntary contributions, the United States has historically allocated funds every year to U.S. government agencies to

support the IAEA’s safeguard activities. In 2004, DOE, DoD, the

State Department, and the Nuclear Regulatory Commission (NRC)

spent about $40 million to support the IAEA’s inspections within

the United States (see Table 1).

DOE plans to spend $34 million in 2004 on international safeguard programs. Those programs provide technology and expertise

to strengthen IAEA’s ability to detect undeclared nuclear material,

support U.S. initiatives to promote adherence to the Nuclear NonProliferation Treaty and IAEA safeguard agreements, and oversee

the implementation of those safeguards at U.S. facilities.

DoD plans to spend about $5 million in support of IAEA efforts

in 2004, performing environmental sample analysis in the United

States for the IAEA. Currently, the Air Force’s Technical Applications Center conducts about 400 sample analyses a year.

In 2004, the NRC plans to spend about $1 million from its international nuclear safety support program to support IAEA safeguards. About four people will work with the IAEA inspectors fulltime on nuclear security and proliferation activities.

Finally, the State Department’s Bureau of Non-Proliferation

plans to spend about $25 million in 2004 on efforts to reduce

threats to the United States and its allies from the proliferation of

nuclear, biological, and chemical weapons. On the basis of information provided by the State Department, CBO estimates that 10 to

15 people will support the IAEA’s efforts in the United States and

abroad at a cost of about $2 million a year.

48

Table 1. Inspection Activities and Costs Related to IAEA Safeguards in 2004

Department

of Energy

Department

of Defense

Nuclear

Regulatory

Commission

Department

of State Total

Number of U.S. Sites Currently

Eligible for IAEA Inspections 35 a 210 0 245

Number of U.S. Sites Currently

Inspected by IAEA Each

Month ..................................... 3 0 1 0 4

U.S. Agency Costs (Millions of

dollars) ................................... 34 5 1 2 42

Source: Congressional Budget Office based on data provided by the State Department and the Administration’s 2005 budget justification materials.

a. DoD applies the National Security Exclusion to all of its facilities.

THE COST TO THE FEDERAL GOVERNMENT OF IMPLEMENTING THE U.S.

ADDITIONAL PROTOCOL

Implementing the Additional Protocol in the United States would

increase costs to the federal government in two ways. First, the

IAEA would incur costs to inspect more facilities in the United

States. CBO estimates that those costs—about $240,000—would

most likely be recouped by an increase in either the IAEA’s regular

budget or the U.S. voluntary contribution. Second, CBO estimates

that several U.S. agencies would incur costs for implementing the

new safeguard measures. CBO estimates that one-time start-up

costs in 2005 would total between $20 million and $30 million and

recurring costs thereafter would total between $10 million and $15

million a year.

INCREASE IN COSTS TO THE IAEA

Today, the IAEA conducts monthly inspections at three DOE

sites and one commercial site. On the basis of information provided

by the IAEA, CBO expects that any additional inspections that the

agency would conduct under the Additional Protocol would be made

in conjunction with those ongoing monthly visits to the United

States. According to the IAEA, inspectors would probably travel to

one additional commercial site during each visit to the United

States. Information from the agency leads CBO to assume that a

team of about 10 inspectors would spend one additional day in the

United States conducting such an inspection, at a cost of about

$20,000. Since IAEA inspectors come to the United States 12 times

a year to visit four sites under existing safeguards, the costs of 12

additional site inspections would amount to about $240,000 a year,

CBO estimates. The IAEA could recoup those costs either by increasing its regular budget or by asking the United States to raise

its voluntary contribution. Consistent with the United States’ current practice of completely reimbursing the IAEA for those expenses, CBO expects that the United States would pay for those

costs. (The contributions would come from the State Department’s

NADR account.)

CBO’s estimate of the IAEA’s costs to carry out additional inspections in the United States is similar to the agency’s estimate of between $100,000 and $200,000.

49

INCREASE IN COSTS TO U.S. AGENCIES

Implementing the Additional Protocol in the United States could

also affect the budgets of the Department of Energy, the Department of Defense, the Department of Commerce (DOC), and the Nuclear Regulatory Commission. Taken together, the one-time startup costs to those agencies of implementing the Additional Protocol

would total between $20 million and $30 million in 2005, CBO estimates, and annual recurring costs would total between $10 million

and $15 million after that. The estimate for each agency is discussed below.

Department of Energy

According to DOE, the number of its sites that would be eligible

for inspections under the Additional Protocol would not change

from today’s level. From discussions with DOE, CBO anticipates

that the costs to the department attendant with implementing the

Additional Protocol would be those associated with conducting vulnerability assessments at roughly 35 facilities. Those assessments

would be conducted to ensure that national security and commercial propriety information are protected. On the basis of information provided by DOE, CBO expects that the department would

conduct each assessment using a team of approximately 10 engineers and that each assessment would take about five working

days to complete and cost, on average, about $220,000. Assuming

that DOE needs to conduct about 50 assessments (one or two at

each of its 35 sites), the one-time costs for those initial assessments

would total about $11 million in 2005, CBO estimates. DOE indicates that it would also conduct outreach efforts to help contractors

prepare for the IAEA inspections. CBO estimates that those efforts

would cost about $1 million. In total, CBO estimates, the one-time

start-up efforts would cost about $12 million. DOE indicates that

it would also need to conduct follow-up vulnerability assessments

each year in support of the additional protocol. On the basis of information provided by DOE, CBO expects that the department

would conduct annual follow-up assessments at about 10 sites a

year. A follow-up assessment would cost about $220,000. Thus,

CBO estimates that the annual recurring costs of those follow-up

assessments would total about $2 million a year.

Department of Defense

DoD plans to apply the National Security Exclusion to all of its

facilities, making none of them available to IAEA inspectors. However, DoD also has concerns about protecting national security interests at DOE labs, universities, fuel-fabrication plants, and commercial manufacturing sites made available for inspections under

the Additional Protocol, because many of those sites perform work

for DoD. (Information provided by the State Department indicates

that the number of sites could exceed 500.)

DoD expects to have to conduct vulnerability assessments at

some of those 500 sites. Each assessment would probably cost between $80,000 and $400,000, depending on the complexity of the

assessment and whether DoD used contractor personnel. Current

staffing levels could not complete the additional vulnerability assessments in a timely manner, and contractors would most likely

50

be hired to conduct many of those assessments. DoD provided no

information on the possible number of assessments that might be

conducted in a year but indicated that the number would remain

steady for the foreseeable future. Assuming that DoD conducts 25

to 50 vulnerability assessments a year, CBO estimates that the

cost of those assessments would total between $5 million and $15

million a year.

Nuclear Regulatory Commission

The NRC expects that 30 additional facilities that it licenses

would become eligible for IAEA inspections. According to the commission, it would be responsible for revising regulations to include

the new requirements for implementing the Additional Protocol.

NRC staff would also prepare guidance documents for IAEA access

to commercial licensees and new reporting requirements. Recurring

efforts would involve overseeing the information provided by licensees directly to the Web-based reporting system run by the Department of Commerce. The NRC estimates that those activities might

require hiring one additional full-time employee. On the basis of information provided by the NRC, CBO estimates that the commission’s cost to implement the Additional Protocol would total about $200,000 a year.

Department of Commerce

DOC’s Bureau of Industry and Security would assist U.S. firms

in complying with the IAEA’s safeguard programs. Information provided by DOC indicates that about 500 commercial sites and 1,000

abandoned uranium mines could be made available for IAEA inspections. The IAEA does not inspect any of those commercial sites

today, but DOC indicates that the IAEA would be likely to visit

some of those sites under the new measures.

The Additional Protocol would require the nuclear industry—including public and private fuel-cycle facilities and nuclear power

plants—to report certain information to the Department of Commerce. DOC is developing a new database specifically to support

the reporting requirements of the Additional Protocol, called the

Additional Protocol Reporting System (APRS). DOC estimates that

the one-time cost for developing the APRS will total about $2 million. DOC also estimates that additional one-time costs for outreach, training, and inspection support activities at the commercial

facilities could total $1 million in 2005. The department expects to

spend about $1 million a year thereafter for continuing the training

efforts and maintaining the APRS database.

THE COST TO THE PRIVATE SECTOR AND STATE AND LOCAL

GOVERNMENTS OF IMPLEMENTING THE U.S. ADDITIONAL PROTOCOL

The Additional Protocol would require the commercial nuclear industry, including public and private fuel-cycle facilities and nuclear

power plants, to submit to inspections by the IAEA. Affected facilities, in conjunction with the Nuclear Regulatory Commission,

would certify their operations, allow the IAEA to inspect them, and

report certain information to the Department of Commerce. According to industry sources, the NRC, its licensees, and certain related

facilities already maintain the information that would have to be

51

reported and have experience conducting similar types of inspections. The nuclear industry does not expect that the Additional Protocol would have a significant impact on the fees licensees pay to

the NRC. Consequently, CBO estimates that the cost to nuclear facilities, both public and private, to comply with the protocol would

be minimal. The Additional Protocol would not affect the budgets

of the state and local commissions that regulate utilities.

OTHER ISSUES

Implementing the additional protocols with other member countries would also increase the IAEA’s operating costs. Those added

costs could affect U.S. payments to the agency, depending on how

those costs were financed. Possible scenarios include:

• A host country could fully reimburse the IAEA for the associated inspection costs, similar to the arrangement that currently exists between the United States and the agency. In

that case, U.S. payments to the IAEA would not increase.

• A host country could fail to fully reimburse the IAEA for those

inspections. The agency would thus need to increase its regular

budget or solicit larger voluntary contributions to cover the

costs. As mentioned earlier, the IAEA Board of Governors approved a $20 million increase in the regular budget for 2004

and plans to increase it by another $5 million by 2007. CBO

estimates that the U.S. share of that increase will total about

$6 million a year. The IAEA hopes that the budget increases

will cover the costs of the additional inspections, but that outcome is not assured because the number of additional inspections that might be necessary is very uncertain.

CBO also assessed the ability of the U.S. government and the

IAEA to support the Additional Protocol. On the basis of information from the State Department and other U.S. agencies, CBO believes that the United States government has made sufficient plans

to ensure that necessary staff and budget resources will be available to support the IAEA inspections that might occur under the

Additional Protocol and to protect U.S. national security interests.

Finally, CBO believes that the IAEA is ready to implement the

broader safeguard measures under the Additional Protocol in the

United States. However, CBO has no basis for determining the

IAEA’s readiness to implement the broader safeguard measures in

other countries.

VIII. RESOLUTION OF RATIFICATION

Resolved (two-thirds of the Senators present concurring therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO CONDITIONS

AND UNDERSTANDINGS.

The Senate advises and consents to the ratification of 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 (T. Doc. 107–7) subject to

the conditions in section 2 and the understandings in section 3.

52

SEC. 2. CONDITIONS.

The advice and consent of the Senate under section 1 is subject

to the following conditions, which shall be binding upon the President:

(1) CERTIFICATIONS REGARDING THE NATIONAL SECURITY EXCLUSION, MANAGED ACCESS, AND DECLARED LOCATIONS.—Prior

to the deposit of the United States instrument of ratification,

the President shall certify to the appropriate congressional

committees that, not later than 180 days after the deposit of

the United States instrument of ratification—

(A) all necessary regulations will be promulgated and

will be in force regarding the use of the national security

exclusion under Article 1.b of the Additional Protocol, and

that such regulations shall be made in accordance with the

principles developed for the application of the national security exclusion;

(B) the managed access provisions of Articles 7 and 1.c

of the Additional Protocol shall be implemented in accordance with the appropriate and necessary inter-agency

guidance and regulation regarding such access; and

(C) the necessary security and counter-intelligence training and preparation will have been completed for any declared locations of direct national security significance.

(2) CERTIFICATION REGARDING SITE VULNERABILITY ASSESSMENTS.—Prior to the deposit of the United States instrument

of ratification, the President shall certify to the appropriate

congressional committees that the necessary site vulnerability

assessments regarding activities, locations, and information of

direct national security significance to the United States will

be completed not later than 180 days after the deposit of the

United States instrument of ratification for the initial United

States declaration to the International Atomic Energy Agency

(in this resolution referred to as the ‘‘Agency’’) under the Additional Protocol.

SEC. 3. UNDERSTANDINGS.

The advice and consent of the Senate under section 1 is subject

to the following understandings:

(1) IMPLEMENTATION OF ADDITIONAL PROTOCOL.—Implementation of the Additional Protocol will conform to the principles

set forth in the letter of April 30, 2002, from the United States

Permanent Representative to the International Atomic Energy

Agency and the Vienna Office of the United Nations to the Director General of the International Atomic Energy Agency.

(2) NOTIFICATION TO CONGRESS OF ADDED AND DELETED LOCATIONS.—

(A) ADDED LOCATIONS.—The President shall notify the

appropriate congressional committees in advance of declaring to the Agency any addition to the lists of locations

within the United States pursuant to Article 2.a.(i), Article

2.a.(iv), Article 2.a.(v), Article 2.a.(vi)(a), Article 2.a.(vii),

Article 2.a.(viii), and Article 2.b.(i) of the Additional Protocol, together with a certification that such addition will

not adversely affect the national security of the United

States. During the ensuing 60 days, Congress may disVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00052 Fmt 6659 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
53

approve an addition to the lists by joint resolution for reasons of direct national security significance, under procedures identical to those provided for the consideration of

resolutions under section 130 of the Atomic Energy Act of

1954 (42 U.S.C. 2159).

(B) DELETED LOCATIONS.—The President shall notify the

appropriate congressional committees of any deletion from

the lists of locations within the United States previously

declared to the Agency pursuant to Article 2.a.(i), Article

2.a.(iv), Article 2.a.(v), Article 2.a.(vi)(a), Article 2.a.(vii),

Article 2.a.(viii), and Article 2.b.(i) of the Additional Protocol that is due to such location having a direct national

security significance, together with an explanation of such

deletion, as soon as possible prior to providing the Agency

information regarding such deletion.

(3) PROTECTION OF CLASSIFIED INFORMATION.—The Additional Protocol will not be construed to require the provision,

in any manner, to the Agency of ‘‘Restricted Data’’ controlled

by the provisions of the Atomic Energy Act of 1954.

(4) PROTECTION OF CONFIDENTIAL INFORMATION.—Should the

President make a determination that persuasive information is

available indicating that—

(A) an officer or employee of the Agency has willfully

published, divulged, disclosed, or made known in any manner or to any extent contrary 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 and the Additional Protocol, any

United States confidential business information coming to

him or her in the course of his or her official duties relating to the implementation of the Additional Protocol, or by

reason of any examination or investigation of any return,

report, or record made to or filed with the Agency, or any

officer or employee thereof, in relation to the Additional

Protocol; and

(B) such practice or disclosure has resulted in financial

losses or damages to a United States person;

the President shall, not later than 30 days after the receipt of

such information by the executive branch of the United States

Government, notify the appropriate congressional committees

in writing of such determination.

(5) REPORT ON CONSULTATIONS ON ADOPTION OF ADDITIONAL

PROTOCOLS IN NON-NUCLEAR WEAPON STATES.—Not later than

180 days after entry into force of the Additional Protocol, and

annually thereafter, the President shall submit to the appropriate congressional committees a report on measures that

have been taken or ought to be taken to achieve the adoption

of additional protocols to existing safeguards agreements

signed by non-nuclear weapon states party to the Nuclear NonProliferation Treaty.

(6) REPORT ON UNITED STATES ASSISTANCE TO THE AGENCY

FOR THE PURPOSE OF ADDITIONAL PROTOCOL IMPLEMENTATION

AND VERIFICATION OF THE OBLIGATIONS OF NON-NUCLEAR WEAPON STATES.—Not later than 180 days after the entry into force

54

of the Additional Protocol, and annually thereafter, the President shall submit to the appropriate congressional committees

a report detailing the assistance provided by the United States

to the Agency in order to promote the effective implementation

of additional protocols to safeguards agreements signed by nonnuclear weapon states party to the Nuclear Non-Proliferation

Treaty and the verification of the compliance of such parties

with Agency obligations.

(7) SUBSIDIARY ARRANGEMENTS AND AMENDMENTS.— (A) THE SUBSIDIARY ARRANGEMENT.—The Subsidiary Arrangement to the Additional Protocol between the United

States and the Agency, signed at Vienna on June 12, 1998

contains an illustrative, rather than exhaustive, list of accepted United States managed access measures.

(B) Notification of additional subsidiary arrangements

and amendments.—The President shall notify the appropriate congressional Committees not later than 30 days

after—

(i) agreeing to any subsidiary arrangement with the

Agency under Article 13 of the Additional Protocol;

and

(ii) the adoption by the Agency Board of Governors

of any amendment to its Annexes under Article 16.b.

(8) AMENDMENTS.—Amendments to the Additional Protocol

will take effect for the United States in accordance with the requirements of the United States Constitution as the United

States determines them.

SEC. 4. DEFINITIONS.

In this resolution:

(1) ADDITIONAL PROTOCOL.—The term ‘‘Additional Protocol’’ means 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 and a Subsidiary Agreement, signed

at Vienna June 12, 1998 (T. Doc. 107–7).

(2) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term

‘‘appropriate congressional committees’’ means the Committee

on Foreign Relations and the Committee on Armed Services of

the Senate and the Committee on International Relations and

the Committee on Armed Services of the House of Representatives.

(3) NUCLEAR NON-PROLIFERATION TREATY.—The term ‘‘Nuclear Non-Proliferation Treaty’’ means the Treaty on the NonProliferation of Nuclear Weapons, done at Washington, London, and Moscow July 1, 1968, and entered into force March

5, 1970.

(55)

IX. HEARING AND QUESTIONS FOR THE RECORD

THE PROTOCOL ADDITIONAL TO THE SAFEGUARDS

AGREEMENT BETWEEN THE UNITED STATES OF

AMERICA AND THE IAEA

CONTENTS

Page

Biden, Hon. Joseph R., Jr., U.S. Senator from Delaware, opening statement .............................................................................................................. 58

Brooks, Ambassador Linton F., Administrator, National Nuclear Security

Administration, U.S. Department of Energy, Washington, DC ..................... 59

Prepared statement ........................................................................................ 62

Burk, Ms. Susan F., Acting Assistant Secretary of State for Non-Proliferation, Department of State, Washington, DC .................................................... 73

Prepared statement ........................................................................................ 77

Esper, Mr. Mark T., Deputy Assistant Secretary of Defense for Negotiations

Policy, U.S. Department of Defense, Washington, DC .................................... 83

Prepared statement ........................................................................................ 87

Lichtenbaum, Hon. Peter, Assistant Secretary of Commerce for Export

Administration, U.S. Department of Commerce, Washington, DC

67

Prepared statement ........................................................................................ 69

Lugar, Hon. Richard G., U.S. Senator from Indiana, opening statement ......... 55

STATEMENTS SUBMITTED FOR THE RECORD

Lehman, Hon. Ronald F., Ph.D., Director, Center for Global Security Research, Lawrence Livermore National Laboratory, Livermore, CA ............... 98

Nuclear Energy Institute, testimony for the record from Marvin S. Fertel,

senior vice president and chief nuclear officer ................................................. 101

Wulf, Ambassador Norman A. .............................................................................. 103

Administration Responses to Committee Questions for the Record submitted

by the Foreign Relations Committee ................................................................ 106

THURSDAY, JANUARY 29, 2004

U.S. SENATE,

COMMITTEE ON FOREIGN RELATIONS,

Washington, DC.

The committee met, pursuant to notice, at 9:30 a.m. in room SD–

419, Dirksen Senate Office Building, Hon. Richard G. Lugar (chairman of the committee), presiding.

Present: Senator Lugar.

OPENING STATEMENT OF SENATOR RICHARD G. LUGAR

The CHAIRMAN. This hearing of the Senate Foreign Relations

Committee is called to order.

Today, the committee meets to consider the Additional Protocol

to the Agreement Between the United States and the International

Atomic Energy Agency, the IAEA. The United States signed the

Additional Protocol in Vienna on June 12, 1998, and President

56

Bush submitted it to the Senate on May 9, 2002. The State Department submitted the implementing legislation to Congress on November 19, 2003. At the administration’s request, I introduced the

implementing legislation in the Senate last December.

Since Senate ratification of the Nuclear Non-Proliferation Treaty

(NPT) and our voluntary offer to accept IAEA’s safeguards in 1980,

188 states have now approved the treaty. Unfortunately, the NPT

and its existing Safeguards Agreements have been insufficient to

stem the tide of proliferation, and we have witnessed an increase

in the global availability of nuclear weapons materials, and reprocessing and enrichment technologies. To ensure that materials and

technologies are devoted only to peaceful uses, it is in the interest

of the United States that the IAEA have the power to conduct intrusive inspections in a non-nuclear weapon state (NNWS).

In 2003, the international community was confronted with two

cases involving non-nuclear weapon states violating their commitments under the NPT by pursuing nuclear weapons programs.

Iran’s clandestine drive toward a nuclear weapons capability was

exposed by an Iranian resistance group and confirmed by the

IAEA. After months of discussion, Germany, France, and the

United Kingdom concluded separate negotiations with Tehran in

which the regime agreed to abandon its uranium enrichment program and to cease all efforts to pursue nuclear weapons. Iran

signed an Additional Protocol with the IAEA in December.

Earlier this month, Iranian Foreign Minister Kharrzi appeared

to hedge on Iran’s commitment by suggesting that Tehran had

agreed, ‘‘to the suspension, not stopping, of the uranium enrichment process.’’ It is clear that Iran is not in full compliance with

its obligations.

In Libya, we witnessed an important non-proliferation success.

Following intense negotiations with the Bush administration and

the United Kingdom, Libya admitted that it had WMD programs

and agreed to abandon those efforts and to work with the international treaty regimes to verify Libya’s commitment. I applaud

President Bush and his team for a victory in the war against proliferation of weapons of mass destruction.

I’m eager to hear from our panel today whether we would have

been able to detect and to stop Iran and Libya’s clandestine programs long before now had Additional Protocols been in force in

those countries.

Events in Iran and Libya are important to our consideration of

the Additional Protocol. In 1980, the Senate ratified the U.S. commitment to voluntarily accept safeguards and inspections to demonstrate a firm commitment to the IAEA and to the NPT. As a nuclear weapon state (NWS) party to the NPT, the United States is

not required to accept any safeguards. Our decision sent an important non-proliferation message to the world: that the preeminent

superpower, with a large civilian nuclear power industry, could accept IAEA safeguards.

Over time, we have learned that existing safeguards agreements

have been circumvented by determined cheaters in pursuit of weapons. The Additional Protocol seeks to fill holes in the existing

patchwork of declarations and inspections. It will require the declaration of many locations and activities to the IAEA not previously

57

required, and allow, with less than 24 hours’ notice, inspection of

such locations.

The United States, as a declared nuclear weapon state party to

the NPT, may exclude the application of the IAEA safeguards on

its activities. Under the Additional Protocol, the United States also

has the right to exclude activities and sites of direct national security significance in accordance with this National Security Exclusion contained in Article 1.b This provision is crucial to United

States acceptance of the Additional Protocol and provides the basis

for the protection of U.S. nuclear weapons-related activities, sites,

and materials, as a declared nuclear power.

The Additional Protocol does not contain any new arms-control or

disarmament obligations for the United States. Although there are

increased rights granted to the IAEA for the conduct of inspections

in the United States, the administration has assured the Foreign

Relations Committee that the likelihood of an inspection occurring

in the United States is very low. Nevertheless, should an inspection

under the Additional Protocol be determined that it would be potentially harmful to United States’ security interests, the United

States has the right, through the National Security Exclusion, to

prevent the inspection.

For the past month, the majority and minority staffs of this committee have been working closely with the administration to craft

a resolution of ratification that will gain broad support in the U.S.

Senate. I thank Senator Joe Biden and his staff, in particular, for

their cooperation in this bipartisan effort. I look forward to reporting, soon, the Protocol and the resolution of ratification, and will

work with the majority leader of the Senate to schedule timely Senate consideration.

I am pleased to introduce our panel this morning. First, I would

like to extend my personal thanks to Ambassador Linton Brooks,

Administrator of the National Nuclear Security Administration. We

will look to Ambassador Brooks to tell us how this Protocol will further United States non-proliferation interests, while not harming

the critical weapons complex over which he and his agency preside.

We welcome Susan Burk, Acting Assistant Secretary of State for

Non-Proliferation. We look forward to Secretary Burk’s perspective

on the United States negotiating position on this Protocol.

Joining us from the Commerce Department, is Assistant Secretary for Export Administration, Peter Lichtenbaum. Secretary

Lichtenbaum will share his department’s plans to mitigate the burdens of the Protocol, if any, on United States industry.

And we welcome Mark Esper, Deputy Assistant Secretary of Defense for Negotiations Policy. We appreciate his appearance today

to share the Defense Department’s strong support for the Additional Protocol, and to discuss the national security benefits outlined in the President’s letter of submission.

The committee also has asked the Nuclear Energy Institute and

outside various experts to submit testimony outlining their views

on the Additional Protocol. Further, we expect to receive the views

of the Committee on Armed Services in the near future, for incorporation into our committee report.

Now, let me say, at the outset, each of the pieces of testimony

that I have cited will be made a part of the record. Likewise, each

58

of the statements that you will make will be made a part of the

record in full, so you need not ask for that in the event you wish

to summarize and proceed.

We very much look forward to the insights of each of our witnesses this morning. We thank you for coming to speak on this important issue. And at the time that Senator Biden joins our hearing, of course, I will call upon him for his additional statements

that will also be made a part of the record.

[The opening statement of Senator Biden follows:]

OPENING STATEMENT OF SENATOR JOSEPH R. BIDEN, JR.

Thank you, Mr. Chairman. I am very pleased that the committee today will hear

testimony from executive branch officials regarding the Additional Protocol to the

Safeguards Agreement between the United States and the International Atomic Energy Agency. Moving forward on U.S. ratification of the Additional Protocol has been

a long-standing priority for me.

In fact, I pressed strongly for the submission of this Protocol to the Senate and

then for submission of draft implementing legislation, which both houses of Congress must pass before the Additional Protocol can enter into force. I understand

that our respective staffs have been working together to fashion an agreed text for

a Resolution of Ratification and that the chairman hopes the committee will approve

this Resolution of Ratification at a business meeting next week.

Senate ratification and entry into force for the the Additional Protocol is so critical because it can help spur the signing and ratification of other Additional Protocol

agreements between the IAEA and non-nuclear weapons states. The recent disclosure on the nuclear programs of Iran and Libya remind us that the IAEA nuclear

safeguards regime without the Additional Protocol is not strong enough to catch a

cheater that uses undeclared nuclear sites.

Additional Protocols will make it more difficult for future Irans and Libyas to escape IAEA detection, as they authorize the IAEA to inspect those undeclared sites.

But the United States must demonstrate leadership by putting our own Additional

Protocol into force; we then will be in a stronger position to pressure other nations

to do the same. As today’s hearing will demonstrate, Senate ratification of the Additional Protocol will not pose any significant new burden to the United States government or industry. In short, ratification of the Additional Protocol is a win-win proposition.

Why should inspections apply to the United States, which the Nuclear Nonproliferation Treaty recognizes as a nuclear weapons state? In 1967, when the Nuclear Nonproliferation Treaty was still being negotiated, President Johnson announced that the United States would voluntarily submit to safeguards on nuclear

materials, to assuage the concerns of non-nuclear weapons states that feared that

the five nuclear weapons states would otherwise enjoy an unfair commercial advantage on nuclear power.

Accordingly, a U.S.-IAEA safeguards agreement, known as the ‘‘Voluntary Offer,’’

has been in place since 1980. Truth be told, this Voluntary Offer is more symbolic

than real; until 1994, the IAEA only applied safeguards to two commercial power

reactors and two fuel fabrication facilities in the United States, from a list of 250

eligible facilities. In recent years, it has inspected only sites for which the United

States requested inspections, like the site where we store the highly enriched uranium we removed from Kazakhstan.

Should the Additional Protocol enter into force, the United States would submit

additional information on civil nuclear facilities on an annual basis and identify additional civilian facilities, a small number of which might someday be inspected.

All implementation activities under the Additional Protocol would be subject to a

‘‘National Security Exclusion’’ that would allow our government to exclude the application of the Additional Protocol wherever it would result in ‘‘access by the Agency

to activities with direct national security significance to the United States or to locations or information associated with such activities.’’

In other words, just as under the Voluntary Offer, the United States always will

retain the trump card of not declaring a facility, not submitting certain information,

or halting or limiting an inspection if our national security interests come into play.

Why should the Senate quickly ratify the Additional Protocol this year? Recall

that the IAEA has long insisted that Iran sign and implement an Additional Protocol.

59

With an Additional Protocol in force, IAEA inspectors enjoy greater access rights

to Iran’s nuclear facilities (whether they are declared to the IAEA or not) and can

demand information that Iran otherwise would not be obligated to provide. Late last

year, Iran finally signed the Additional Protocol, but complex ratification procedures

offer many opportunities for Iran to delay the agreement’s entry into force.

Iran is not the only non-nuclear weapons state that has not ratified the Additional

Protocol. Other countries that have yet to do so include Algeria, Argentina, and

Brazil, to name just a few. Indeed, the Additional Protocol has entered into force

for only 37 non-nuclear weapons states.

Senate ratification of the Additional Protocol and then the enactment of implementing legislation, would send a strong signal to the rest of the world on the importance the United States attaches to a genuine nuclear nonproliferation agenda.

U.S. ratification would affirm that implementation of the Additional Protocol brings

no commercial disadvantage for a nation’s civil nuclear industry. Most importantly,

ratification would strip the Irans of the world of a potent excuse: why should we

ratify the Additional Protocol when the United States has yet to do so?

So I welcome with great pleasure the testimony of our esteemed witnesses today.

Ambassador Brooks, Mr. Lichtenbaum, Ms. Burk, and Mr. Esper, I look forward to

hearing your statements. Mark, I also want to welcome you back as you testify before your former committee.

Thank you, Mr. Chairman.

The CHAIRMAN. It’s a pleasure, Ambassador Brooks, to call upon

you for your testimony.

STATEMENT OF AMBASSADOR LINTON F. BROOKS, ADMINISTRATOR, NATIONAL NUCLEAR SECURITY ADMINISTRATION,

U.S. DEPARTMENT OF ENERGY, WASHINGTON, DC

Ambassador BROOKS. Thank you, Mr. Chairman. It’s a pleasure

to be back before a committee with which I have worked so closely

in the past. And it’s an honor to appear, on behalf of the President

and the administration, to urge that the Senate provide its advice

and consent to ratification of the Additional Protocol.

I have submitted a detailed written statement. And, as you suggest, I will simply make some specific points drawn from that

statement.

My main message is a very simple one. Universal adherence to

the Additional Protocol will give us important new tools in the fight

against nuclear proliferation. Senate advice and consent at an early

date will demonstrate U.S. leadership in this area and will encourage widespread adherence to the Additional Protocol by other

states. And, finally, the administration is convinced that it can

manage the risks associated with implementing the Additional Protocol. I’ll explain why that’s true for the Department of Energy. My

colleagues will discuss other departments’ preparations.

In his transmittal package to the Senate, the President said,

‘‘Adhering to the Additional Protocol will bolster U.S. efforts to

strengthen nuclear safeguards and promote the non-proliferation of

nuclear weapons, which is the cornerstone of U.S. foreign and national security policy.’’

This committee knows better than anyone that the proliferation

of nuclear weapons is among our most important national security

challenges. Most parties to the Non-Proliferation Treaty are honoring their obligations, but a small number of states, as you mentioned in your opening statement, have repudiated those obligations or are engaging in activities that raise serious questions

about their intentions.

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One of the international community’s primary tools in verifying

compliance with the Non-Proliferation Treaty is the safeguard system with the International Atomic Energy Agency. Now, international regimes, alone, are not sufficient solution to the risk of

proliferation, but they’re necessary components of an overall strategy that uses all tools, whether international, multilateral, or unilateral. And to have a strong overall non-proliferation strategy,

each element of that strategy must be as strong as possible.

Today, the IAEA system of safeguards covers only declared activities, and it’s not adequate to detect undeclared activities, and

it needs the enhancements the Additional Protocol will provide.

Events over the past decade have shown that effective non-proliferation depends on detecting undeclared activities as early as

possible, when potential weapons programs are in their formative

stages. By broadening the verification role of the IAEA to include

fuel-cycle research and development, related manufacturing, imports and exports of sensitive nuclear equipment, the Additional

Protocol will allow the IAEA to detect these undeclared activities

earlier.

The need for this became clear in 1991, following the first gulf

war. We discovered a well-developed nuclear weapons program in

Iraq; and in response to that revelation, under the leadership of the

United States, a group of IAEA member states negotiated the socalled Model Additional Protocol to supplement and amend the

Model Safeguards Agreement. As I said a moment ago, while the

Safeguards Agreement focuses on accounting for material at declared facilities, the Additional Protocol gives the IAEA the tools it

needs to discover undeclared programs at the early stage.

Technology transfer, as recent events have made very clear, is an

important precursor to actual proliferation, and the Additional Protocol offers the ability to deal with this issue. It’s very important,

as this committee knows well, that we pursue our own national

technical means of detecting proliferation activities—I don’t suggest that this or any other agreement is a substitute for that—but

it’s also vital to ensure that we use the widest possible set of tools.

Widespread adherence to the Additional Protocol will strengthen

international efforts to detect and control proliferation.

But if we’re going to get the benefits of widespread adherence to

the Protocol, the United States must lead the way. Given our dominant position in the world today, there’s simply no substitute for

U.S. leadership. Now, we’ve exercised that leadership already, of

course. Just like the original Safeguard Agreement, the U.S. Additional Protocol contains a national security exclusion to protect our

national security equities. But except for that, the U.S. Additional

Protocol contains every word of the IAEA Model Protocol, and we’re

the only nuclear weapons state that has accepted the Model Protocol in its entirety.

If we hadn’t pushed so hard for a strong Model Protocol, and if

we hadn’t accepted a comprehensive Additional Protocol for ourselves, I believe fewer states would have been willing to accept

their own Protocols. The diplomatic reality is that our support for

the Additional Protocol and our agreement to accept its implementation have been crucial. Just as we provided the critical push for

the Non-Proliferation Treaty by voluntarily agreement to accept

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IAEA’s Safeguards Agreement in 1980, our acceptance to the Additional Protocol provides an impetus for other countries to conclude

and implement their own Additional Protocols.

And Senate advice and consent will allow us to continue this

U.S. leadership and renew our efforts to gain universal acceptance

of the Additional Protocol. That’s clearly in the national security interest of both the United States and our friends and allies.

Now, the benefits of widespread adherence to the Additional Protocol must, of course, be balanced by consideration of the risks to

U.S. security from additional IAEA presence in the United States.

Department of Energy, as you mentioned in your opening statement, is in a unique position to consider this balance. We have significant non-proliferation responsibilities, and we have a unique

role in dealing with the IAEA. But, at the same time, we have responsibilities for safeguarding the U.S. nuclear weapons complex.

Our Department has a long, constructive history of working with

the IAEA. And because of this extensive collaborative relationship,

we have a vast store of experience and knowledge concerning safeguards. And that knowledge and experience will apply to our implementation of the Additional Protocol. It includes experience in

preparing for and supporting IAEA safeguards, while protecting

sensitive U.S. information from disclosure.

And based on this experience, we are convinced that ratification

of the Additional Protocol will not endanger U.S. security. That’s

because along with providing the IAEA with important tools to ferret out undeclared military activities, the Additional Protocol includes a set of robust mechanisms by which the United States can

protect commercially sensitive, export-controlled, and classified material.

First method is managed access. Managed access can involve a

wide variety of measures—shrouding, closing doors, limiting access,

turning off computers—and that will allow us to prevent IAEA inspectors from coming into contact with proliferation-sensitive or

proprietary or commercially sensitive information.

Second, and most important, the United States can unilaterally,

and without explanation, invoke a national security exclusion that

enables us to deny IAEA access to activities with direct national security significance or to locations associated with those activities.

The IAEA has no right to challenge or question the U.S. invocation

of the national security exclusion.

So with managed access, the national security exclusion rights,

site-specific plans, and our long experience, I am confident that we

can fully manage any risks associated with the Additional Protocol.

This is not just based on theory. The IAEA currently conducts

monthly inspections of safeguarded nuclear materials in three Department of Energy sites under our existing voluntary-offer agreement. It’s done so since 1994, with no significant problems.

Now, we expect that if the IAEA seeks access to a DOE site

under the Additional Protocol, it will do so only in rare circumstances, and then only after we’ve had the opportunity to supply additional information that might make access unnecessarily.

Thus, in contrast with the monthly inspections that we handle

now, we wouldn’t expect any regular access beyond that already

permitted by our Safeguards Agreement.

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My formal statement describes the modest administrative and financial burden that we expect from implementation of the Additional Protocol. At present, we only have preliminary figures and

the type and number of activities to be declared, but we’ve made

a firm policy that we’ll only declare an activity for which complementary access could be granted without posing a risk to national security equities. If we can’t provide access, we won’t declare

the activity. We’ll also make full use of managed access. But, once

again, only where we’re confident that managed access is sufficient

to protect our national security equities. Likewise, we’ll protect

from disclosure of proprietary or commercially sensitive information. In short, we plan to make full use of our rights under the Additional Protocol to protect our interests while still meeting our obligations.

Our preparations for safeguarding security while implementing

the Additional Protocol are detailed in my written statement. They

include development of a computerized data base to manage our

portion of the U.S. declaration; exercises, both tabletop and fields,

to help us understand implementation of complementary access;

comprehensive training for DOE officials, both in headquarters and

at the field; and development of special training for security personnel; and, finally, close coordination with other agencies.

The risk of nuclear weapons falling into the hands of rogue

states is one of the greatest threats to U.S. national security today.

The international nuclear non-proliferation regime is one made

major line of defense against that threat. Additional Protocols in

non-nuclear weapon states will strengthen our efforts to prevent

the diversion or clandestine production of fissile material directly

enhancing our national security. And U.S. leadership, in adopting

our own Protocol, is crucial to gaining adherence from others. We,

therefore, urge this committee and the Senate to provide advice

and consent to this Protocol as soon as possible.

Thank you very much for your attention. Once my colleagues

have made their statements, we’ll be prepared to take any questions you may have.

[The prepared statement of Ambassador Brooks follows:]

PREPARED STATEMENT OF AMBASSADOR LINTON F. BROOKS

INTRODUCTION

Mr. Chairman, members of the Committee, thank you for this opportunity to discuss the Additional Protocol and its implications for the Department of Energy

(DOE). We seek universal acceptance of the Additional Protocol in the international

community as an important goal of U.S. national security policy. As the President

said in his transmittal package to the Senate,

Adhering to the Additional Protocol will bolster U.S. efforts to strengthen

nuclear safeguards and promote the nonproliferation of nuclear weapons,

which is the cornerstone of U.S. foreign and national security policy.

Mr. Chairman, as you and your fellow Committee members are well aware, the

proliferation of nuclear weapons is among the United States’ foremost national security challenges. While most Parties to the Non-Proliferation Treaty (NPT) are honoring their obligations and share our concerns about the risks of nuclear proliferation, a small number of states have repudiated their obligations or are engaging in

activities that pose serious questions about their intentions. One of the international

community’s primary tools in verifying states’ compliance with the NPT is the

IAEA’s safeguards system.

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Strong U.S. support for the Additional Protocol, including U.S. implementation of

the Additional Protocol, will promote our objective of verifying other States’ compliance with their obligations.

International regimes such as the NPT and IAEA safeguards play a critically important role in reducing the risk of nuclear proliferation. Clearly, these regimes in

themselves are not a sufficient solution to the risks of proliferation, but strong US

support for them forms a necessary component of a broadly gauged nonproliferation

strategy that embraces all effective tools, whether they be international, multilateral, or unilateral in nature. Achieving the widest possible international adherence

to an effective AP materially serves US national security interests, just as do such

recent measures as the Proliferation Security Initiative and our ongoing diplomatic

efforts to achieve a peaceful resolution of the proliferation challenge the international community faces in North Korea and Iran.

U.S. diplomatic support for a strong Model Additional Protocol was indispensable

during negotiations of the Model Additional Protocol in the mid-1990s in order to

overcome concerns posed by other countries about the scope of what would be subject to verification. In response to the limitations of traditional safeguards that were

exposed in Iraq following the Persian Gulf War, our objective has been to strengthen

IAEA safeguards. Had the United States not pushed so hard for a strong AP, including by accepting a comprehensive AP to its own IAEA safeguards agreement, it is

questionable whether we would have achieved this objective. The diplomatic reality

is that our support for the AP, and our agreement to accept its implementation in

the United States in a manner that is appropriate to our status as a nuclear weapons state, has been critical to getting the AP to where it is today. One can only ponder the possible impact of failing to ratify the U.S. AP, for example, on the effort

to get Iran and other countries of concern to implement their own Additional Protocols.

As events over the past decade amply show, the effectiveness of nonproliferation

efforts depends upon detecting undeclared activities as early as possible, when potential nuclear weapons programs are in their formative stages. By broadening the

verification role of the IAEA to include fuel cycle R&D and related manufacturing

not involving nuclear materials, as well as imports and exports of sensitive nuclear

equipment, the AP advances the stage at which the IAEA can detect undeclared activities. As important as it is to pursue our own national technical means of detecting proliferation activities, it is also vital to ensure that the widest possible net is

cast to detect such activities. Our experience under the AP will give us an invaluable window into its effectiveness and whether even further strengthening of the

safeguards regime might be needed.

Our support of the IAEA is long standing. The United States has always maintained a leadership position in the IAEA and in the international safeguards system. Indeed, it was in President Eisenhower’s ‘‘Atoms for Peace’’ speech, 50 years

ago last month, that one can find the broad outlines of what became the IAEA and

of the concept of using international safeguards to verify the peaceful uses of nuclear energy. Continued U.S. leadership is essential to the ability of the IAEA to

successfully carry out its vital role in verifying Non-Nuclear Weapons States’ compliance with their obligations under the Non-Proliferation Treaty.

The Department of Energy and its predecessor agencies have had a long and constructive history of working with the IAEA. Because of this extensive collaborative

relationship, DOE has a vast store of experience with and knowledge of IAEA safeguards. This knowledge and experience, which can be applied directly to the implementation of the Additional Protocol, includes effective preparation for and support

of implementation of IAEA safeguards at certain DOE facilities, and protection of

sensitive U.S. information from disclosure to IAEA inspectors. Secretary Abraham

has reiterated his personal commitment to and support for the Department’s strong

and effective engagement with the IAEA, including support for IAEA safeguards implemented at DOE facilities.

In 1991, following the first Gulf War, a well-developed nuclear weapons program

was discovered in Iraq. In response to that revelation, a group of IAEA Member

States, with strong leadership by the United States, negotiated the Model Additional Protocol to supplement and amend the model Safeguards Agreement. While

the Safeguards Agreement (also known as INFCIRC/153) focuses on nuclear material accountancy at declared facilities, the Additional Protocol gives the IAEA the

tools it needs to discover undeclared nuclear programs at an early stage, and to

deter non-nuclear weapons states from undertaking prohibited military programs.

The Additional Protocol was opened for signature in 1997. Just as the United States

provided a critical push for the NPT by agreeing to voluntarily accept a U.S.-IAEA

Safeguards Agreement in 1980, U.S. acceptance of the Additional Protocol will provide an impetus for other countries to conclude an Additional Protocol. Like the

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original safeguards agreement, the U.S. Additional Protocol contains a national security exclusion to protect U.S. national security equities.

The Administration firmly believes that the universal acceptance of the Additional

Protocol is in the national security interest of the United States. The Senate’s positive advice and consent to ratification of the Additional Protocol would make the

United States a leader by example, and encourage other states to ratify an Additional Protocol.

IMPACT ON THE DEPARTMENT OF ENERGY COMPLEX

Let me also address the impact of the Additional Protocol on the DOE complex.

Based on past arms control vulnerability assessments and on our analysis of the

Protocol, DOE is confident that it can manage the risk to national security associated by the AP. Other agencies that will be testifying today also have implementation responsibilities for facilities and activities, some that could involve the Department of Energy sites. While I am confident that the AP does not pose an unreasonable burden on the US, and that US national security activities will be protected

from disclosure, as a representative of the Department of Energy and the Administrator of its National Nuclear Security Administration, I will address the AP’s impact on the Department of Energy complex.

At the same time that the Additional Protocol provides the IAEA with important

tools to ferret out undeclared military activities in non-nuclear weapons states, the

Additional Protocol also includes a set of robust mechanisms by which DOE can protect its commercially sensitive, export-controlled, and classified assets. The first

method is managed access, also referred to as ‘‘Article 7 managed access.’’ This managed access involves a wide range of measures, such as shrouding, closing doors, or

turning off computers and other equipment to prevent IAEA inspectors from coming

into contact with ‘‘proliferation sensitive information or proprietary or commercially

sensitive information.’’ Second, the United States can unilaterally, and without explanation, invoke a national security exclusion (NSE) under Article 1 that enables

the U.S. not to declare or allow IAEA complementary access to ‘‘activities with direct national security significance to the United States or to locations or information

associated with such activities.’’

Third, under Article I, the United States also has the right to use managed access

associated with the NSE. Managed access under Article 1 is more robust than the

Article 7 managed access. We would employ this managed access under Article 1

of the Additional Protocol only where our security evaluation shows that such managed access would mitigate, in a manner acceptable to us, any risk of inadvertent

disclosure of national security activities or information to the inspector. I would reiterate that the use of the NSE or managed access under the NSE is entirely unilateral, and the IAEA has no right to challenge or question the U.S. invocation of the

national security exclusion. With managed access and the national security exclusion rights combined with Additional Protocol-specific security plans and DOE’s past

experience with IAEA inspections, DOE is confident that it can fully manage the

risks associated with the Additional Protocol.

The IAEA currently conducts monthly inspections of safeguarded nuclear materials at three sites in the DOE complex since 1994. We have applied this extensive

experience to our preparations for the AP. We expect, that if the IAEA conducts a

complementary access visit to a DOE site under the AP to resolve a question regarding our declaration for the specific activity in question, it would do so only in rare

circumstances, and then only after we have had the opportunity to supply additional

information in writing. In contrast to the monthly inspections we now support at

the three DOE sites under the VOA, we would not expect any regular complementary access visits by the IAEA at DOE sites.

Indeed, while the impact of the Additional Protocol will not be insignificant, it will

nonetheless be manageable. The bulk of the time, effort, and expense associated

with the Additional Protocol will be in connection with preparations for entry-intoforce, particularly in developing the initial DOE portion of the declaration and completing security plans. The Department is continuing to refine its analyses of how

many of its sites will be affected by the Additional Protocol. We believe that nearly

all the major Department of Energy National Laboratories and facilities will be affected, consistent with implementation of the National Security Exclusion. While the

DOE complex has diverse missions and activities, some sites will only have a small

number of declarable programs, and in a few cases will have none. Other sites and

facilities will have larger numbers of declarable activities.

At this point in time, the Department has only preliminary figures on the type

and number of activities to be declared. The declarations will primarily be in the

areas of civil nuclear fuel cycle research not involving nuclear material, manufacVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00064 Fmt 6601 Sfmt 6621 108-12.TXT SFRELA2 PsN: SFRELA2
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ture of the items listed in Annex II of the Additional Protocol (such as equipment

to build and maintain nuclear reactors and enrichment equipment), and exports of

items listed in Annex II. I should note that the Department already, under a voluntary arrangement with the IAEA, declares certain exports. The Additional Protocol will formalize this arrangement. Based on analyses carried out to date, we believe that the number of DOE declarable items will be in the low 1OOs. We will

further refine this estimate as we move forward in our preparations for entry into

force. I will discuss the Department’s on-going preparations for the Additional Protocol in more detail shortly.

In addition to the cost in time and effort, there will be a financial cost to implement the Additional Protocol. Current budget estimates indicate that the Department will require approximately $3.5 million for headquarters, including the funds

already allocated, to prepare the complex. In addition, the up-front preparation costs

for each site, including the cost of comprehensive vulnerability and security assessments will be an estimated $220 thousand per site, for a total of approximately $10

million. Please keep in mind that this is an upper bound, and as the Department

gains experience in preparing for the Additional Protocol, these estimates may decrease. I would also note that this is a one-time expense in preparing for entry-intoforce. The annual cost of the Additional Protocol will be approximately 10% of the

initial cost per year for the first couple of years and less in the out-years.

PROTECTION OF NATIONAL SECURITY EQUITIES

Before I continue any further, I would like to highlight the steps that the Department of Energy is currently taking and will take in the future to protect the very

important national security equities at our sites and facilities. DOE already has a

great deal of practical experience in preparing declarations and carrying out inspections under the current U.S.-IAEA Safeguards Agreement (also known as the Voluntary Offer Agreement [VOA]), while still protecting adjacent national security equities. Since 1994, the IAEA has been carrying out monthly inspections of highly

enriched uranium and plutonium at multiple DOE facilities, and currently carries

out inspections at three DOE facilities: the Y-12 Complex near Oak Ridge, Tennessee; the Hanford Site near Richland, Washington; and the Savannah River Site

near Aiken, South Carolina.

In preparation for these traditional IAEA safeguards inspections, comprehensive

vulnerability assessments were completed, and specific, detailed security plans were

developed and implemented to prevent inadvertent disclosure of sensitive and classified information to the inspectors. The Department will conduct site-specific vulnerability assessments (VAs) for DOE facilities where potentially declarable activities

under the Additional Protocol are taking place, to determine whether or not we can

offer the IAEA access to those activities.

DOE will only declare an activity for which complementary access could be granted without posing a risk to national security equities. Let me be clear on this. If

DOE cannot provide access, for whatever reason, we will not declare the activity.

We will make full use of managed access measures where we are confident that they

will protect our national security equities, including proliferation sensitive information. Likewise, we will protect from disclosure proprietary or commercially sensitive

information. In short, we will make full use of our rights under the Additional Protocol to protect these interests, while meeting our obligations under the Protocol.

I want to be equally clear that our exercise of our NSE rights under the AP will

not allow Non-Nuclear Weapon States (NNWS) to follow suit. That is because the

NSE right in Article 1 of the U.S. Additional Protocol, which is available to us as

a Nuclear Weapon State in NPT terms, is not available to NNWS. The NSE in the

US AP parallels the exclusion of defense nuclear materials under our Voluntary

Offer safeguards agreement with the IAEA, which is similarly unique.

DOE Orders require that site security personnel conduct operational security reviews of sensitive equities on a periodic basis. The frequency of these reviews is determined by the levels of sensitivity. For example, Top Secret and Special Access

Programs have the highest frequency. Specific guidance for the conduct of reviews

pertaining to the Additional Protocol is under development and is expected to be

issued in the near future.

Over the past ten years, the Department has conducted vulnerability assessments

and exercises at most of its facilities to ascertain whether or not a wide variety of

arms control regimes could be accommodated. These activities have been related to

the Chemical Weapons Convention, the Fissile Materials Cutoff Treaty, the Strategic Arms Reduction Treaty, the Biological weapons Convention, and the Additional

Protocol. Arms control assessments were conducted at five facilities last year. An

exercise was also conducted last fall. The conclusion that the Department has drawn

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from these assessments and exercises is that national security equities at Department of Energy and National Nuclear Security Administration sites can be protected

under the Additional Protocol, provided that the United States can exercise managed access and the national security exclusion. Thus, while we shall continue our

preparations for the AP, we are confident that we will protect our national security

interests from disclosure under the AP. I base this confidence on conclusions of particular analyses tailored to the AP regarding protecting national security interests

at DOE locations, as well as over a decade’s experience in assessing vulnerabilities

under arms control agreements of varying intrusiveness and our experience with

supporting IAEA inspections under the VOA.

The Department is in the process of identifying potentially declarable activities

under the Additional Protocol. Once these activities are identified, the Additional

Protocol-specific assessments will be conducted at each of the impacted sites to determine which activities can be declared. These assessments will be conducted as

part of the on-going site OpSec programs and will be coordinated with other federal

agencies that have security interests. Finally, let me repeat that DOE will not declare under the Additional Protocol any activity or location for which it cannot grant

complementary access, because of the nature of the activity itself, other agencies’

affected national security equities or because of location-related national security

concerns.

DEPARTMENT OF ENERGY PREPARATIONS FOR THE ADDITIONAL PROTOCOL

The Department of Energy has already begun preparations should the Additional

Protocol enter into force. DOE has begun the development of an Additional Protocol

Reporting System (APRS). The APRS is a computerized database that will collect,

store, and update the DOE portion of the USG Additional Protocol declaration. Because of the unique nature of the DOE portion of the Additional Protocol declaration, DOE sites will not input directly into the United States Government system

under development by the Department of Commerce. Site security and OpSec personnel with knowledge of national security activities at those locations will rigorously scrub individual candidate declaration entries prepared by other site personnel, and there will be additional scrutiny at the headquarters level. Furthermore, since the DOE provides national security related products and services to the

Department of Defense (DoD), the DOE declaration will be also receive a DOD review prior to submission to the USG declaration compiled by the Department of

Commerce (DOC). The combination of these steps will give the DOE complex an

extra layer of security and assurance. DOE is working closely with the Department

of Commerce to ensure that the two systems will be able to communicate with each

other. While exact numbers are not known at this time, the DOE APRS is expected

to maintain a declaration of a few hundred entries. This declaration is dynamic and

will change over time. DOE has developed a comprehensive and precise set of guidelines to ensure that personnel in the field will be able to determine whether projects

are declarable or not.

Another element of our preparations involves exercises to give us a hands-on perspective on implementation of complementary access. Recently, DOE held a tabletop

exercise for DOE Headquarters personnel and national laboratory representatives at

Oak Ridge National Laboratory to test some assumptions about how an IAEA complementary access visit under the Additional Protocol would work. Subsequently,

representatives from the rest of the interagency, conducted a U.S.-only field trial to

test certain DOE and Administration assumptions about how the Additional Protocol would be implemented in the United States. It was an invaluable test of the

system, giving DOE personnel, laboratory staff, and interagency representatives real

hands-on experience with a mock complementary access visit. DOE intends to run

more tabletop and field trial exercises. We are currently planning a tabletop exercise

at a nuclear weapons lab to simulate application of the NSE to the declaration process and complementary access, under NSE managed access conditions, to a declarable activity (e.g., a civil fuel cycle R&D program).

In a wider context, the Department has undertaken a comprehensive outreach

program to inform the DOE Headquarters, field operations offices, laboratories, and

sites of their rights and responsibilities under the Additional Protocol. The program

consists of management briefings, detailed staff tutorials and training on complementary access, making declarations, and using the Additional Protocol Reporting System. Specialized training will be developed for security personnel.

In its preparations for the Additional Protocol, DOE has been coordinating closely

with other relevant agencies. Regular working level meetings are held among the

concerned agencies to discuss policy issues. Additionally, DOE is working with the

Department of Commerce to ensure that compatibility between the DOE and USG

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Additional Protocol Reporting Systems. Finally, DOE has begun regular meetings

with DOD to ensure that DOD equities at DOE sites are protected. We will similarly ensure that the national security equities of other U.S. Government agencies

at our facilities will be protected.

CONCLUSION

Let me conclude by reiterating the Administration’s commitment to the IAEA and

the Additional Protocol. The risk of nuclear weapons falling into the hands of rogue

states or terrorists is one of the greatest threats to U.S. national security today, and

the international nuclear non-proliferation regime is a primary line of defense. Protocols in Non-Nuclear Weapon States will strengthen our efforts to prevent the diversion or clandestine production of fissile material, directly enhancing the national

security of the United States. We believe that the widespread adoption of the Additional Protocol is strongly in U.S. interests and that U.S. leadership in adopting the

Protocol ourselves is critical. I urge you to provide your advice and consent to this

Protocol in an expeditious manner. Thank you for your time and attention. I am

now prepared to take any questions you may have.

The CHAIRMAN. Thank you very, very much for that testimony.

It is so important to our consideration today, thanks to the broad

experience that you bring to the table.

It’s a pleasure now to call on the Honorable Peter Lichtenbaum,

then Secretary Burk, and Secretary Esper.

Secretary Lichtenbaum.

STATEMENT OF HON. PETER LICHTENBAUM, ASSISTANT SECRETARY OF COMMERCE FOR EXPORT ADMINISTRATION, U.S.

DEPARTMENT OF COMMERCE, WASHINGTON, DC

Mr. LICHTENBAUM. Thank you very much, Mr. Chairman. And

thank you for the opportunity to testify before the committee today

on the impact of the Additional Protocol on the U.S. commercial

nuclear industry, and the role of the Commerce Department in the

implementation of the Additional Protocol. Like Ambassador

Brooks, I urge the Senate’s advice and consent to the Additional

Protocol.

Regarding the impact of the Additional Protocol on U.S. industry,

the Additional Protocol will expand declaration requirements and

access provisions to include upstream and downstream nuclear

fuel-cycle activities. These include mining and milling, research

and development, equipment manufacturing, exports and imports,

and waste processing.

Commerce does not expect that implementing the Additional Protocol will be overly burdensome on U.S. industry. Based on studies

conducted for the U.S. Government, we estimate that no more than

500 operating commercial locations under our responsibility will

have to file declarations. And based on discussions with the IAEA,

we anticipate that the United States would receive no more than

a few complementary access visits annually.

We expect that the cost to industry of submitting declarations

and participating in any access visits will be fairly low. Based on

data from industry compliance with the Chemical Weapons Convention, or CWC, it takes an average of 5 hours to complete a declaration. The cost of an access visit under the CWC has been about

$30,000; however, we expect the cost under the Additional Protocol

to be lower than that, since Additional Protocol inspections will be

more limited.

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As far as Commerce’s role in implementing the Additional Protocol, we will have two key responsibilities. First, we will help industry comply with the Additional Protocol, consistent with Commerce’s overall role to assist U.S. industry to comply with international arms-control agreements. Second, we will establish and

run the system to integrate all U.S. information into our national

declaration.

Regarding the first area of responsibility, Commerce will be responsible for implementation for commercial activities not licensed

by the Nuclear Regulatory Commission, or NRC. Commerce will,

however, work with the NRC so that U.S. companies know which

regulations apply to them. Since some companies may have to comply with both Commerce and NRC rules, depending on their activities, we will work with the NRC to ensure that our rules are complementary, and we will jointly develop declaration forms and conduct outreach.

Commerce will help the industry comply with the Additional Protocol following the same principles as we have used to help industry to comply with the CWC.

First, demonstrating industry compliance. We will conduct seminars, training, and other outreach to industry in order to assist

companies in understanding and implementing their declaration

and complementary access obligations. We will also offer site-assistance visits and assistance in advance of inspections to companies that seek help.

Second, protecting confidential information. In our outreach, we

will help companies to identify and protect proprietary and other

sensitive information and technology. Commerce will manage complementary access visits at commercial locations under our responsibility. We will escort inspectors from the IAEA from the time they

arrive at the front gate of the location until they depart the location. In addition, Commerce will vigorously employ the managedaccess measures permitted under Article 7 of the Additional Protocol and contained in the U.S. subsidiary arrangement to protect

confidential or proprietary information.

And, third, regarding minimizing burdens on the U.S. industry.

At the declaration stage, the information that we will require companies to submit by regulation will be kept to the minimum necessary to meet U.S. treaty obligations. The declaration form itself

will be developed in a user-friendly way; for instance, by allowing

companies to check boxes, rather than write text. We will maintain

an Additional Protocol Web site so that companies have quick access to information. And we will seek to use the clarification process to avoid any need for a complementary access visit.

I mentioned that we have a second responsibility to integrate information submitted to us and other agencies of the government for

ultimate submission to the IAEA. And as part of that, we will develop a secure, but unclassified, Additional Protocol Reporting System, or APRS. The APRS will collect and process industry submissions and will aggregate all agency declaration information into a

U.S. national declaration for transmission to the IAEA. This system will permit agencies to identify activities with direct national

security significance in order to protect them through the national

security exclusion.

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There are many risks associated with releasing the identity and

activities of commercial locations. Therefore, we believe the U.S.

Government needs an effective means of preventing the domestic

release of information contained in the Additional Protocol Reporting System. An exemption from Freedom of Information Act disclosure, as contained in the implementing legislation, would provide

such protection.

In conclusion, Commerce plans to implement the Additional Protocol so as to ensure U.S. industry’s compliance, while minimizing

burdens and avoiding any national security vulnerability.

I would be happy to respond to any questions from the committee

following my colleagues’ testimony.

Thank you.

[The prepared statement of Mr. Lichtenbaum follows:]

PREPARED STATEMENT OF ASSISTANT SECRETARY PETER LICHTENBAUM

COMMERCE DEPARTMENT ROLE IN IMPLEMENTING THE U.S. ADDITIONAL PROTOCOL

Chairman Lugar, Senator Biden, and Members of the Committee:

Thank you for the opportunity to testify before the committee today on the impact

of the Additional Protocol (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) on the U.S. commercial nuclear industry and the role of the Department of Commerce in implementation of the Additional Protocol. As you know, the mission of the Commerce Department’s Bureau

of Industry and Security (BIS) is to advance U.S. national security, foreign policy,

and economic interests. BIS’s responsibilities include assisting U.S. industry to comply with international arms control agreements. It is in this capacity that I am testifying before you today.

Background

The Additional Protocol is a critical amendment to the Safeguards Agreement. It

will expand declaration requirements and access provisions beyond facilities handling source or special fissionable material to include upstream and downstream nuclear fuel cycle activities, such as mining and milling, research and development,

equipment manufacturing, exports and imports, and waste processing. The recent

discoveries by the International Atomic Energy Agency (IAEA) in Iran demonstrate

the limitations of the Safeguards Agreement and the benefits of inspectors’ ability

to access the full scope of nuclear fuel cycle-related activities to ensure a non-nuclear-weapon state’s compliance with the Nuclear Non-Proliferation Treaty.

Commerce and NRC Roles

The Additional Protocol, by expanding the application of the U.S. Safeguards

Agreement to civil nuclear activities, subjects additional U.S. commercial locations

to declaration and complementary access requirements. The Nuclear Regulatory

Commission (NRC) will have the lead role for commercial activities that it licenses

(e.g., uranium mills, infrastructure supporting facilities, and equipment exports).

BIS will be responsible for implementation as it applies to any commercial activity

not licensed by NRC, including uranium mining, research and development not involving nuclear materials, and manufacturing and importing of specially designed

nuclear equipment. To assist U.S. companies in determining to which regulations

they are subject, BIS and NRC will ensure that our rules are complementary, and

will jointly develop declaration forms and conduct outreach.

BIS Approach

BIS has a successful history of assisting industry to comply with the only other

international arms control treaty that directly affects U.S. commercial activities: the

Chemical Weapons Convention (CWC). Our approach to ensuring U.S. compliance

has been both novel and successful. We have developed a partnership with commercial facilities built upon three guiding principles:

(1) Demonstrating industry compliance;

(2) Emphasizing the protection of confidential information; and

(3) Minimizing burdens and costs to industry.

70

This approach has been successful from a compliance standpoint and has been

commended by the largest domestic chemical industry trade group. We intend to implement the industry compliance provisions of the Additional Protocol following

these same principles.

Additional Protocol Reporting System

As part of our implementation responsibilities, BIS has been tasked to develop a

secure Additional Protocol Reporting System that will collect and process industry

submissions, and will aggregate all agency information collected from declarations

into a U.S. national declaration for transmission to the IAEA. As part of this system, BIS is developing an electronic tool that will permit agencies to identify activities with direct national security significance to the United States in order to protect

these equities through a national security exclusion (NSE). Under Article 1.b of the

Additional Protocol, the United States reserves the right to exclude locations or activities of direct national security significance from declaration to the IAEA. BIS

regulations will instruct companies not to submit classified information with declarations. Nevertheless, the identification of activities and locations of certain companies, including defense contractors, could require the U.S. Government to exercise

the NSE for commercial activities in order to guard against the potential to disclose

information of direct national security significance. For example, this situation could

exist where a program of direct national security significance is co-located with unrelated commercial activities (e.g., equipment manufacturing). The U.S. Government

has the right to exercise the NSE to prevent such sensitive information from being

submitted to the IAEA.

Protection of Sensitive Information

Additionally, declaration information must be protected from domestic release.

There are many risks associated with releasing the identity and activities of commercial locations engaged in nuclear fuel cycle activities. Therefore, the U.S. Government needs an effective means of preventing the domestic release of information

contained in the unclassified Additional Protocol Reporting System. A statutory exception to Freedom of Information Act disclosure would provide the means of protecting our sensitive commercial information and the identity of those sensitive locations. Moreover, our right under the Additional Protocol to exercise the NSE would

be undermined if information pertaining to excluded locations or activities were subject to domestic release.

Simplified Reporting

Based on studies conducted by the Departments of Commerce and State, we estimate that no more than 500 commercial locations or activities outside of the NRC’s

jurisdiction will be subject to declaration (excluding the one-time submission of declarations for abandoned uranium mines, which may total more than 1,000). Information required to be submitted will be kept to the minimum necessary to meet U.S.

treaty obligations. In order to simplify reporting requirements, we are developing

check-box forms that limit the need for free-style writing. Companies engaged in

multiple activities subject to declaration may submit a combined declaration. BIS

also will permit commercial locations to submit declarations electronically via the

internet. After submitting initial declarations, companies whose activities remain

unchanged from the previous calendar year will simply need to submit a ‘‘nochange’’ form, thereby further reducing paperwork burdens.

Industry Outreach

As was done in preparation for CWC implementation, BIS will conduct seminars,

training and other outreach to industry in order to assist companies in understanding and implementing their declaration and complementary access obligations.

We will also offer site assistance visits to companies that seek help in preparing for

inspections. A primary focus of such outreach is to assist companies in identifying

and protecting proprietary and other sensitive information and technology.

Complementary Access

As we have successfully done during 47 CWC inspections, BIS will manage complementary access visits at commercial locations. BIS will escort inspectors from the

time they arrive at the front gate of a location until they depart the location. Based

on discussions with the IAEA, we anticipate receiving no more than a few such visits annually. We will work with the Department of Defense and other agencies to

ensure that a security countermeasures expert is available to participate on BIS

host teams and to provide expertise with regard to inspecting IAEA equipment for

integrity and safety purposes.

71

Advance Preparation for Complementary Access

Under the CWC, we have found that the ability to provide advance assistance to

facilities prior to the inspection team’s arrival is invaluable. Such assistance includes training company personnel on escort techniques to facilitate compliance with

verification aims and to protect confidential information. We will make such services

available in the event of a complementary access visit under the Additional Protocol

as well. Moreover, should an inspection take place at a location under contract by

the U.S. Government, any agency concerned will participate on the host team and

instruct BIS as to whether and how to invoke the NSE to manage access pursuant

to Article 1.c of the Additional Protocol.

Managed Access and Protection of Confidential Information

In addition, BIS will vigorously employ the managed access measures permitted

under Article 7 of the Additional Protocol and contained in the U.S. Subsidiary Arrangement to protect confidential or proprietary information. Invocation of managed

access techniques does not require advance agreement with the IAEA. As with our

implementation of CWC inspections, we will work closely with companies to identify

and protect confidential information, and will not respond to IAEA inspector questions not directly related to compliance with the Additional Protocol.

Basis for IAEA Complementary Access

The most effective way to protect confidential and other sensitive information is

to avoid complementary access visits. The United States has no plans to volunteer

a commercial location for complementary access. Unlike the routine inspection provisions of the CWC, the IAEA will not seek to routinely verify declarations submitted pursuant to the Additional Protocol. For uranium mines, the IAEA has access on a selective basis to assure the absence of undeclared nuclear material and

activities. For all other commercial locations that will be subject to BIS regulations,

the IAEA will have access to a location only after the IAEA gives the United States

an opportunity to resolve a question or inconsistency and only where the visit would

be consistent with the requirements of the Fourth Amendment. BIS’s objective is

to ensure the submission of complete and accurate declarations in order to preclude

the need for complementary access at these commercial locations. In addition to providing support to companies to ensure accurate declarations, BIS will work closely

with companies to develop a comprehensive U.S. response to an IAEA clarification

request if one is received.

Nevertheless, prudent planning dictates that BIS conduct site assistance visits to

help locations prepare for complementary access visits, particularly any locations

that are co-located with sensitive programs. As demonstrated under the CWC,

hosting an inspection is greatly facilitated by advance planning and proper execution.

Voluntary Consent and Warrants

Regardless of the location to be inspected, the Administration’s draft implementing legislation provides that a complementary access visit will not occur unless

a company grants consent or an administrative search warrant is obtained, except

in any situations where such consent or warrant is not required by the Fourth

Amendment.

IAEA Protection of Confidential Information

Article 15 of the Additional Protocol requires the IAEA to maintain a stringent

regime to ensure protection of confidential information. No information submitted

to the IAEA is subject to release without a state party’s consent. While certain confidential information may be required to be released to the IAEA in order to comply

with the Additional Protocol, it will be kept to a minimum and the U.S. Government

will closely monitor the IAEA’s adherence to the requirements of protecting such information. At a minimum, BIS will review all information prior to release to IAEA

inspectors to ensure it is relevant to the Additional Protocol. Additionally, no company documentation, including photographs, may be taken off-site by IAEA inspectors without BIS’s approval.

Vetting of Inspectors

In preparation for complementary access visits, the U.S. Government has the

right to exclude certain inspectors from inspecting locations in the United States.

We will work with the interagency community to exercise this right with regard to

nationals from terrorist-supporting countries and will take account of espionage concerns when vetting inspector lists.

72

1 ‘‘Comments on the Protocol Additional to the Agreement Between the United States of America and the International Atomic Energy Agency Concerning the Application of Safeguards in

the United States of America (‘U.S. Additional Protocol’) [67 Fed.Reg. P. 70049-November 20,

2002]’’, Nuclear Energy Institute, January 23, 2003.

Entry-Into-Force

With regard to entry-into-force, we are committed to implementing the requirements of the Additional Protocol as soon as possible after ratification and enactment

of implementing legislation. However, to ensure that proper protections are established and industry has adequate time to understand and implement its reporting

obligations, entry-into-force will not occur until BIS publishes its regulations in final

form and vulnerability assessments of declared locations of direct national security

significance are completed. In the interim, BIS will promulgate a proposed rule and

offer interested parties an opportunity to comment.

Expected Low Burden to Industry

Based upon the limited response to our request for public comments on the Additional Protocol in a Federal Register Notice of Inquiry and discussions with the Nuclear Energy Institute, we do not anticipate that implementation will be overly burdensome on industry. The Nuclear Energy Institute has stated that it ‘‘. . . does

not foresee significant burdens on industry from ratification and imposition of the

U.S. Additional Protocol.’’ 1

Our experience with implementing the CWC’s declaration and inspection requirements also suggests that the impact of the Additional Protocol on industry will be

modest. The limited amount of information required to be declared will minimize

the burden on industry from filling out forms. Moreover, complementary access visits will occur less frequently and their duration will be much shorter than CWC inspections, based on the IAEA’s current practice in other states that have implemented the Additional Protocol. As we proceed with implementation, BIS will coordinate closely with affected companies to ensure declaration forms are user-friendly and implementation procedures are fully understood.

CONCLUSION

In conclusion, while the bulk of U.S. locations affected by the Additional Protocol

are engaged in purely commercial or academic activities, the burdens are expected

to be low and the potential vulnerabilities can be mitigated through a public-private

partnership. The Department of Commerce recognizes the international nonproliferation benefits of this agreement and will do its utmost to support the treaty’s

nonproliferation goals. We will demonstrate industry compliance while protecting

confidential information and minimizing the burden on industry.

The CHAIRMAN. Well, thank you very much, Secretary

Lichtenbaum.

At this point, let me indicate that I have received word that Senator Biden will not be with us. And let me offer a word of explanation to our witnesses, as well as to those who are in the hearing

today. Both of the political parties, Republican Senators and Democratic Senators, are involved in policy retreat deliberations today

and tomorrow, and so they are there doing that work. But I felt

that the issue before us, this Protocol, is so important so we should

proceed today. We very much appreciate your cooperation in coming.

Obviously, the full record will be made available to our colleagues. We will have a committee markup in which they will have

an opportunity to read the materials and to discuss them fully. As

I have indicated, the staff, Republican and Democratic, have been

very active in working with the administration, including figures

such as yourselves, to make certain that we do the right thing for

the country and that, as rapidly as possible, we have a very sound

piece of legislation to place before the Senate.

73

So I will put in the record Senator Biden’s opening statement,

which will come directly after the one that I delivered this morning, and before the testimony of our witnesses.

I now call upon Secretary Burk.

STATEMENT OF MS. SUSAN F. BURK, ACTING ASSISTANT SECRETARY OF STATE FOR NON-PROLIFERATION, U.S. DEPARTMENT OF STATE, WASHINGTON, DC

Ms. BURK. Thank you very much.

Mr. Chairman, I want to thank you and the committee for inviting me here today to discuss the U.S.-IAEA Additional Protocol

(USAP), an important amendment to our longstanding Safeguards

Agreement with the International Atomic Energy Agency (IAEA).

The President strongly believes that implementation of the U.S.-

IAEA Additional Protocol is in the best interest of the United

States. Senate approval of the Additional Protocol will help sustain

our longstanding record of voluntary acceptance of nuclear safeguards and greatly strengthen our ability to promote universal

adoption of the Model Additional Protocol, a central goal of the

President’s non-proliferation policy.

Mr. Chairman, your original request was for Under Secretary of

State John Bolton to appear before you today. As he discussed with

you last week, unfortunately he cannot be here, as he is in Moscow

for consultations on various international security matters. Please

be assured, however, that the testimony I will give today, on behalf

of the administration, in favor of ratification represents the administration position, which, of course, Mr. Bolton fully supports.

I’d like to summarize some of the key points from the longer testimony which we have submitted for the record.

First, let me begin by discussing our experience, to date, in implementing IAEA safeguards, pursuant to our Safeguards Agreement with the IAEA, which has been in force since 1980. We concluded this agreement, also known as the U.S. Voluntary Offer, to

demonstrate our willingness to accept international safeguards

under virtually the same terms and conditions that non-nuclear

weapon states are called upon to accept safeguards under the Nuclear Non-Proliferation Treaty.

The key difference in our Voluntary Offer is the inclusion of our

right to invoke, unconditionally, a national security exclusion to

protect national security information. Under that agreement, the

U.S. has made available for IAEA’s safeguards inspection over 250

civil nuclear facilities. These include a large number of power reactors and research reactors, commercial fuel fabrication plants, uranium enrichment plants, as well as other types of facilities.

In the case of a non-nuclear weapon state, the IAEA would have

an obligation to inspect any such facility, as well as many other locations where nuclear material is used. In the United States, in

contrast, the IAEA has the right, but not the obligation, to select

facilities for inspection. In more than two decades, the IAEA has

conducted inspections at only 18 of these facilities, and never at

more than five facilities in any one year. These inspections have

been carried out on a cooperative basis with the United States, and

I’m confident that this longstanding pattern of cooperation will continue as we implement the Additional Protocol.

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In order to explain why the Additional Protocol is so important

to curbing proliferation, we need to step back to the end of the Persian Gulf war when the world community learned the extent of

Iraq’s clandestine pursuit of an advanced program to develop nuclear weapons. Although the IAEA had not been lax in fulfilling

their obligations in Iraq, Iraq’s nuclear program had been completely and deliberately hidden from IAEA inspectors. IAEA member states simply had not given the agency the tools and mandates

to detect a clandestine program such as Iraq’s.

To address this program, the IAEA Board of Governors agreed on

a series of measures that it could take to strengthen safeguards

under its existing legal authority. It also agreed to begin negotiation on another set of measures, which it did not then have the

legal authority to implement. These measures came to be incorporated in the Model Additional Protocol.

The United States took a leading role in the negotiations of the

Model Protocol. Several other industrialized states, including close

allies, were hesitant to support so substantial an expansion of declaration requirements and IAEA access. Following the example of

our Voluntary Offer, the United States stated during the negotiations that it would accept the provisions of the Model Protocol, subject to a national security exclusion. By continuing our willingness

to submit to the same safeguards on all of our civil nuclear facilities that non-nuclear weapon states parties to the NPT are subject

to, the United States intends to demonstrate that adherence to the

Model Protocol does not place other countries at a commercial disadvantage. We strongly believe our success in achieving a strong

Model Protocol depended on our voluntary acceptance of all measures in the Model Protocol.

Similarly, U.S. signature of our Additional Protocol was a significant factor in the early decision by many non-nuclear weapon

states to accept the protocol. A number of our close friends and allies have also relied on our pledge in persuading their legislatures

to approve their Additional Protocols.

The Additional Protocol requires non-nuclear weapon states to

declare, to the IAEA, a number of nuclear and nuclear-related

items, materials, and activities that, while they could be part of a

peaceful nuclear program, would also be required for a covert nuclear weapons program. Specifically, non-nuclear weapon states

must report exports of nuclear-related items controlled by the Nuclear Suppliers Group, confirm imports of such items, and report

domestic manufacturing of key items. These states must also report

exports, imports, and stockpiles of raw uranium and thorium that

could be used as feed material for a covert nuclear program, as well

as information related to uranium mines, uranium and thorium

concentration plants, uses of each building on the sites of safeguarded nuclear facilities, construction of new nuclear facilities,

and certain nuclear-related research and development work not involving nuclear material. Thus, a proliferator having an Additional

Protocol in force would have to successfully conceal a much broader

range of activities and facilities in its covert nuclear program to escape detection.

The Additional Protocol provides the IAEA with three important

types of access rights to enable it to detect and expose cheating

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through use of spot-checks, as needed, in non-nuclear weapon

states. These include: Access to locations declared by the state

where nuclear facilities or materials are located, ‘‘on a selective

basis,’’ in order to assure the absence of undeclared nuclear material and activities; Access rights at other declared locations that

could contribute to a nuclear program, to be exercised only in the

event of a question or inconsistency related to the state’s declarations. Such access is allowed, in general, only following consultation with the state to resolve the question or inconsistency; and

Circumscribed access rights at undeclared locations, also available

only in the event of a question or inconsistency related to the

state’s declarations. Again, such access normally follows consultation with the state to resolve the question or inconsistency. In addition, the range of activities that the IAEA may carry out at

undeclared locations is narrowly restricted.

The U.S. Additional Protocol includes all the above provisions of

the Model Protocol, but, as is the case in our Voluntary Offer Safeguards Agreement, the Additional Protocol also includes one other

major provision that is unique to our status as a nuclear weapons

state: the ‘‘national security exclusion.’’ This provision states the

United States will apply, and permit the agency to apply, the provisions of the protocol, ‘‘excluding only instances where its application would result in access by the agency to activities with direct

national security significance to the United States or to locations

or information associated with such activities.’’ Unlike the Chemical Weapons Convention, the Intermediate

Range Nuclear Forces Treaty, and other treaties that rely on procedural restraints on inspectors to protect U.S. national security interests, the United States has the right to deny access or exclude

inspection activities on the basis of the national security exclusion.

Since the national security exclusion makes clear that the United

States will have undeclared nuclear material and activities, both

the United States and the IAEA, as well as the IAEA member

states, recognize that inspections in the United States serve primarily the symbolic purpose of demonstrating U.S. commitment to

safeguards and its willingness to accept the burdens that their applications might entail.

In particular, the United States will not provide to the IAEA information of direct national security significance to the United

States, or access to activities and locations of direct national security significance to the United States; and exclude inspector activities that are inconsistent with the national security exclusion at a

given location. The national security exclusion, therefore, gives the

United States an extraordinary, broad, legal means to prevent the

transfer of information to the IAEA.

The Model Protocol’s provisions regarding declarations and access are aimed at making it harder for cheaters, such as Iran, Iraq,

North Korea, and Libya, to hide undeclared nuclear activities, as

you mentioned in your statement, and either at declared facilities

or at other locations. For this reason, the Protocol gives the IAEA

access rights in short timeframes, particularly to un-safeguarded

buildings at sites of declared nuclear facilities.

If an Additional Protocol had been in force, safeguards inspectors

at Iraq’s Tuwaitha facility could have required access to other

76

buildings at that site within a period as short as 2 hours, and this

would have enabled them to detect elements of Iraq’s clandestine

nuclear weapons program. In this way, the Protocol seeks to force

a prospective proliferator to hide its covert activities away from its

declared nuclear activities, where they are easier to detect.

Iraq and others have also carried out covert activities far from

declared sites, to avoid IAEA access. To address this problem, the

Additional Protocol gives the IAEA the authority to seek access at

undeclared locations based on questions and inconsistencies that

arise regarding the state’s declaration. The IAEA can, thus, act on

evidence uncovered in its internal information evaluation efforts or

provided by members states or other credible sources.

Perhaps the best example of the benefits of the Protocol is the

present situation in Iran. While there have long been grounds for

concern about Iran’s nuclear activities, the existing safeguard system permitted Iran to carry out many aspects of its program undetected. Under its Safeguards Agreement with the IAEA, Iran was

not required to declare the construction of key facilities. It was

slow to grant access to a variety of locations, and balked at IAEA

use of sensitive environmental sampling techniques at a key location suspected of enrichment-related activities. If Iran had had an

Additional Protocol in force, it would have had an obligation to declare many of these and other activities at an earlier stage.

Thus, a key non-proliferation goal of the United States has been

to increase non-nuclear weapon states adherence to the Additional

Protocol. Entry into force of the U.S.-IAEA Additional Protocol

would provide a powerful tool in furthering this goal and, thereby,

enhance U.S. national security.

Throughout the negotiation of the Model Additional Protocol,

there was strong interest in giving the IAEA the tools it needed to

conduct inspections, while protecting the rights of the states inspected. In addition to the national security exclusion, the U.S. Additional Protocol includes the same protections for commercially

sensitive information as the Model Protocol. For example: Information on nuclear R&D activities declared to the IAEA is limited to

location and general description, and does not include details or results; Information declared to the IAEA on nuclear-related manufacturing is limited to location and the scale of operation.

Access is designed to be infrequent and for research and development, as well as nuclear-related manufacturing, based on unresolved questions or inconsistencies. Inspection activities are limited, and relevant to detection of undeclared nuclear material and

activities.

No other state may request IAEA access in the United States,

unlike the challenge inspection system under the Chemical Weapons Convention. The IAEA is required to maintain a stringent regime for protection against disclosure of commercial, technological,

and industrial confidential information, and the regime is subject

to periodic review and approval by the United States and other

IAEA board members.

Only those individuals to whom the United States agrees may be

assigned by the IAEA to conduct inspections in the United States

under the U.S. Safeguards Agreement or for access under the U.S.

Additional Protocol. If the U.S. objects to a particular individual on

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the proposed list of inspectors, and so notifies the IAEA, the IAEA

must remove that person from the list of inspectors designated for

the United States.

Whenever requested by the United States, managed access arrangements must be used to prevent disclosure of proliferation sensitive information or proprietary or commercially sensitive information. And, finally, both the IAEA and its officers or employees may

be subject to legal process in the event of unauthorized disclosure

of confidential information. The IAEA can withdraw immunity of

inspectors in cases of abuse.

In conclusion, Mr. Chairman, the administration believes that

Senate advice and consent to ratification of the U.S. Additional

Protocol will advance the national security interests of the United

States by strengthening the global nuclear non-proliferation regime. At the same time, the administration believes that adequate

protections have been built into the Protocol to ensure that its application in the United States will not compromise activities or information of direct national security significance.

I want to thank you. And I also look forward to any questions

when my colleagues have finished.

[The prepared statement of Ms. Burk follows:]

PREPARED STATEMENT OF ACTING ASSISTANT SECRETARY SUSAN F. BURK

INTRODUCTION

Mr. Chairman: thank you and the Committee for inviting me here today to discuss the U.S.-IAEA Additional Protocol (USAP), an important amendment to our

longstanding safeguards agreement with the International Atomic Energy Agency

(IAEA). The President strongly believes that implementation of the U.S.-IAEA Additional Protocol is in the best interest of the United States. Senate approval of the

Additional Protocol will help sustain our longstanding record of voluntary acceptance of nuclear safeguards and greatly strengthen our ability to promote universal

adoption of the Model Additional Protocol, a central goal of the President’s nonproliferation policy.

Mr. Chairman, your original request was for Under Secretary of State John

Bolton to appear before you today. As he discussed with you last week, unfortunately he cannot be here today as he is in Moscow for consultations on various

international security matters. Please be assured, however, that the testimony I will

give today on behalf of the Administration, in favor of ratification, represents the

Administration position, which of course Mr. Bolton fully supports.

As the number of non-nuclear weapon states adhering to Additional Protocols increases, the international nuclear safeguards system will be strengthened. It will

give greater capabilities to provide assurance to the United States and other nations

that nuclear activities in non-nuclear weapon states are directed toward peaceful

purposes only. Implementation of Additional Protocols will help dissuade potential

proliferators from using safeguarded nuclear material for other than peaceful purposes, or engaging in clandestine nuclear activities, because of the increased risk of

being caught.

ORIGIN OF THE ADDITIONAL PROTOCOL

I would like to begin by underscoring that the United States relies heavily on the

IAEA safeguards system to detect and deter the diversion of nuclear material for

use in covert weapons programs. The IAEA, as the recognized international nuclear

inspection organization, is instrumental in unraveling covert, and often complex, nuclear activities, e.g., the Iraqi and DPRK nuclear weapons program. The tenacious

approach taken during the last year by IAEA inspectors in Iran is to be highly commended.

Iraq Experience

The process of refining and strengthening IAEA safeguards has been ongoing

since their inception. The IAEA, with strong U.S. support, undertook a major

strengthening effort in the 1990s, in direct response to discoveries made during

78

IAEA inspections in Iraq following the first Gulf War. These inspections uncovered

an ambitious clandestine nuclear weapons program in Iraq, involving a number of

undeclared installations. Of particular significance was a covert enrichment facility

located adjacent to a declared nuclear facility where the Agency had been applying

its safeguards for years. The IAEA had not detected this concealed activity before

the war because its Member States only required it to ensure against the non-diversion of declared material. The existing safeguards system was designed almost exclusively for detecting diversion of nuclear material only at declared facilities. Under

the then-existing safeguards system, the IAEA had only a limited capability to determine whether Iraq (or any other state) was engaged in undeclared or clandestine

nuclear activities. To address this and other deficiencies, the United States and

other IAEA member states conducted a review of the nuclear safeguards system.

Subsequently, the IAEA Board of Governors decided to make broader use of the

Agency’s existing authority and to provide the additional authority and tools needed

by IAEA inspectors to uncover undeclared nuclear activities.

During the course of this review of the safeguards system, the IAEA identified

some meaningful rights whose full use could meaningfully improve the capabilities

of the system, e.g., special inspections and environmental sampling. A number of deficiencies in the system were also noted. To fill these gaps in the IAEA’s authority,

the IAEA Board of Governors created an open-ended negotiating committee of Member States that met 55 times during 1996-1997 to agree upon the text for a Model

Additional Protocol. The resulting text for the Model Additional Protocol was approved by the Board of Governors in 1997. The United States worked hard to bring

these negotiations to a successful conclusion, and believes that the measures contained in the Model Additional Protocol greatly improve the IAEA’s ability to uncover undeclared nuclear material and activities. The United States signed its Protocol on June 12, 1998.

Application of the Additional Protocol to Non-Nuclear Weapon States

The IAEA uses the Model Additional Protocol for negotiation and conclusion of

Additional Protocols that amend and strengthen states’ existing comprehensive safeguards agreements. As such, Additional Protocols broaden the information states

are required to give to the IAEA and provide additional access rights for IAEA inspectors to verify those declarations when necessary. Non-nuclear weapon states

must incorporate all the measures in the Model Additional Protocol in negotiating

their Additional Protocols. Nuclear weapon states and countries not party to the

NPT, however, are free to chose among or limit the application of the provisions of

the Model Additional Protocol, since they have not made a commitment to place all

nuclear activities under safeguards.

The United States, consistent with our rights as a nuclear weapon state, has chosen to limit the application of the Protocol’s provisions. I will outline briefly for you

the provisions of the Model Additional Protocol, then discuss how the Protocol’s provisions will be applied in the United States.

Provisions of the Model Additional Protocol

The Model Additional Protocol requires states to declare to the IAEA a number

of nuclear and nuclear-related items, materials, and activities that, while they could

be part of a peaceful nuclear program, would be required for a covert nuclear weapons program. Specifically, the Protocol requires states to report exports of nuclearrelated items controlled by the Nuclear Suppliers Group, confirm imports of such

items, and report domestic manufacturing of key items. It also requires states to report exports, imports, and stockpiles of raw uranium and thorium that could be

used as feed material for a covert nuclear program, and also report information related to uranium mines, uranium and thorium concentration plants, uses of buildings on the sites of safeguarded nuclear facilities, construction of new nuclear facilities, and certain nuclear-related research and development work not involving nuclear material.

A proliferator having an Additional Protocol in force would have to successfully

conceal a much broader range of activities and facilities in its covert nuclear program to escape detection. The IAEA would have more types of information available

as triggers for access requests. Import and export reporting would give the IAEA

opportunities to compare declarations from different countries to detect suspicious

activity, thereby requiring air-tight connivance between regulatory authorities in

supplier and recipient counties in order to deceive the IAEA. The requirement that

countries declare R&D activities, mining and materials stocks, facility construction,

and manufacturing and the uses of unsafeguarded buildings at nuclear facilities increases the potential avenues by which information acquired by the IAEA could be

used to reveal the existence of covert nuclear programs in their early stages: such

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revelations would be actionable immediately, since they would be based upon stateprovided declarations.

Access to Locations

The Model Additional Protocol does not provide for full IAEA verification of all

of the new declarations required. Indeed, it explicitly excludes creation of any system for ‘‘mechanistically or systematically’’ seeking to verify the new declarations.

Verification in detail of all declarations was judged unnecessarily expensive and

burdensome for the IAEA and inspected parties. But the Additional Protocol does

provide the IAEA with three important types of access rights to enable the IAEA

to detect and expose cheating through use of spot checks, as needed:

• Access to locations declared by the state where nuclear facilities or materials

are located ‘‘on a selective basis’’ in order to assure the absence of undeclared

nuclear material and activities;

• Narrower access rights at other declared locations that could contribute to a nuclear program, to be exercised only in the event of a question or inconsistency

related to the State’s declarations. Such access is allowed, in general, only following consultation with the state to resolve the question or inconsistency; and

• Circumscribed access rights at undeclared locations, also available only in the

event of a question or inconsistency related to the State’s declarations. Again,

such access normally follows consultation with the state to resolve the question

or inconsistency. In addition, the range of activities that the IAEA may carry

out at undeclared locations is narrowly restricted.

Benefit of the Additional Protocol for U.S. National Security

The Model Additional Protocol’s provisions regarding declarations and access are

aimed at making it harder for cheaters to hide undeclared nuclear activities, either

at declared facilities or at other locations. Iraq had co-located clandestine nuclear

activities with their declared nuclear facilities in order to mask its covert activities

and for reasons of convenience and economy. For this reason, the Protocol gives the

IAEA access rights in short time frames at sites of declared nuclear facilities. If an

Additional Protocol has been in force, safeguards inspectors at Iraq’s Tuwaitha facility could have required access to other buildings at that site within a period as short

as two hours, enabling them to detect undeclared activities. In this way, the Protocol seeks to force a proliferator from hiding its covert activities away from its declared nuclear activities rendering it easier to detect.

Iraq and others have also carried out covert activities far from declared sites to

avoid IAEA access. This is why the Additional Protocol gives the IAEA the authority

to seek access at undeclared locations, based on questions and inconsistencies that

arise regarding the State’s declaration. The IAEA can thus act on evidence uncovered in its internal information evaluation efforts or provided by member states or

other credible sources.

Having gained access, the IAEA has the ability, particularly through sensitive

sampling techniques that detect trace signatures of nuclear activities, to find evidence of covert activities. It was IAEA sampling in North Korea in 1992 that demonstrated significant omissions in North Korea’s declarations concerning its plutonium production activities, making clear to the world that the DPRK was cheating

on its nonproliferation obligations. More recently, IAEA sampling demonstrated the

presence of enriched uranium at certain locations in Iran, despite initial Iranian assertions by Iran that it had not carried out enrichment activities.

Of course, proliferators may also resist IAEA demands for access to the incriminating facilities or information. A refusal of access, however, can be itself significant

evidence of noncompliance. It was the DPRK’s refusal to cooperate with the IAEA

in providing access to sites that ultimately led to the IAEA Board of Governors finding the DPRK in noncompliance with its safeguards agreement. Given the broader

IAEA access rights under the Additional Protocol, a state refusing to permit access

in order to hide a clandestine nuclear weapons program is likely to raise concerns

at an earlier stage of the program, enabling the Board of Governors and the international community to respond sooner.

Perhaps the best example of the benefits of the Protocol is the present situation

in Iran. While there have long been grounds for concern about Iran’s nuclear activities, the existing safeguards system permitted Iran to carry out many aspects of its

program undetected. For example, Iran was not required to declare the construction

of key facilities. Moreover, once challenged by the IAEA, Iran, was slow to grant

access to a variety of locations, and balked at IAEA use of sensitive environmental

sampling techniques at a key location suspected of enrichment-related activities. If

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clare many of these and other activities at an early stage in their construction; there

would have been no doubt about the IAEA’s right to access, and no legitimate

grounds for Iran to deny or delay. Resistance to inspection, or discovery of these facilities in advanced stages of construction would have been unambiguous violations

of Iran’s obligations.

Thus, a key nonproliferation goal of the United States has been to increase nonnuclear weapon state adherence to the Additional Protocol. Entry into force of the

U.S.-IAEA Additional Protocol would provide a powerful tool in furthering this goal,

and thereby enhance U.S. national security.

U.S.-IAEA PROTOCOL

Experience with IAEA Safeguards

Let me say a few words about our experience since 1980 in implementing our Voluntary Offer Agreement with the IAEA, in force since 1980.

The Treaty on the Non-Proliferation of Nuclear Weapons (the ‘‘NPT’’) requires

nonnuclear weapon state parties to accept IAEA safeguards on all nuclear material

in all of their peaceful nuclear activities. The United States, as a nuclear weapon

state party to the NPT, is under no obligation to accept such safeguards. However,

beginning with President Johnson’s 1967 pledge, it has been the announced policy

of the United States since then to permit the application of IAEA safeguards to all

of its nuclear facilities, except for those facilities and activities excluded for national

security reasons. By submitting itself to the same safeguards on all of its civil nuclear facilities that non-nuclear weapon state parties are subject to, the United

States intended to demonstrate that adherence to the NPT did not place other countries at a commercial disadvantage. This offer was critical to gaining acceptance of

the NPT by countries such as Germany and Japan.

Pursuant to our Voluntary Offer Agreement with the IAEA, the United States has

made eligible for IAEA safeguards inspection over 250 civil nuclear facilities. These

include a large number of power reactors and research reactors, commercial fuel

fabrication plants, uranium enrichment plants, as well as other types of facilities.

In the ease of a non-nuclear weapon state, the IAEA would have an obligation

to inspect all of these facilities, as well as many other locations where nuclear material is used. In the United States, in contrast, the IAEA has the right, but not the

obligation, to select facilities for inspection. In more than two decades, the IAEA has

conducted inspections at only 18 of these facilities, and never at more than five facilities in any one year. These inspections have been carried out on a cooperative

basis with the United States. I’m confident this longstanding pattern of cooperation

will continue. A fundamental point here is that safeguards in the United States are

not directed at uncovering illicit or non-compliant nuclear activities or transfers (as

they are in non-nuclear weapon states). Rather, they serve the basically political

purpose of underscoring U.S. support for the regime and voluntary cooperation with

the IAEA, as well as U.S. willingness to accept for the American nuclear industry

a fair share of the economic burden of inspections. As I will discuss in greater detail

later, these were key elements of the political bargain that allowed successful conclusion of the NPT. Thus, the IAEA’s ability to conduct inspections in the United

States plays a valuable role in helping to strengthen the political case for application of IAEA safeguards world-wide.

The IAEA, because of budgetary pressures, discontinued inspections in the United

States in 1993. At the request of the U.S. Government, the IAEA resumed inspections in 1994 by applying safeguards to several tons of weapons-usable nuclear material, which had been declared excess to U.S. national security stockpiles. The

IAEA undertook this effort on the condition that the United States reimburse the

IAEA. At present, the IAEA applies safeguards at four U.S. facilities.

U.S. NATIONAL SECURITY EXCLUSION

The U.S. Additional Protocol, which would amend the U.S. Voluntary Offer of

1980, includes all the provisions contained in the Model Protocol. However, it includes one other major provision that is unique to our status as a nuclear weapon

state: the ‘‘national security exclusion.’’ This provision states that the United States

will apply and permit the Agency to apply the provisions of the Protocol ‘‘excluding

only instances where its application would result in access by the Agency to activities with direct national security significance to the United States or to locations

or information associated with such activities.’’ Thus, implementation of the USAP

will be entirely different in both practice and concept than in non-nuclear weapon

states. Similarly, unlike the CWC, the INF, and other treaties that rely on procedural restraints on inspectors to protect U.S. national security interests, the United

States has the right to deny access or exclude inspection activities on the basis of

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the national security exclusion. Since the national security exclusion makes clear

that the United States will have undeclared nuclear material and activities, both

the United States and the IAEA, as well as IAEA Member States, recognize that

inspections in the United States serve primarily the symbolic purpose of demonstrating U.S. commitment to safeguards and its willingness to accept the burdens

their application may entail. In particular, the United States:

• will not provide to the IAEA information of direct national security significance

to the United States or access to activities and locations of direct national security significance to the United States; and

• will exclude inspector activities that are inconsistent with the national security

exclusion at a given location.

The national security exclusion, therefore, gives the United States an extraordinary legal means to protect and prevent the transfer of information to the IAEA

and exclude inspectors’ access in the United States wherever required for the protection of activities of direct national security significance to the United States or of

information or locations associated with such activities.

Because the IAEA will have the legal right to conduct all activities permitted

under our Protocol, steps have been taken to ensure that our national security interests are protected if and when the IAEA decides to exercise those rights. At the

same time, the United States has important equities in promoting a strong and effective nuclear nonproliferation regime, including the need to avoid disclosure of nuclear weapon information to non-nuclear weapon states, which would violate our

NPT obligations.

PHILOSOPHY BEHIND THE U.S.-IAEA ADDITIONAL PROTOCOL

During the negotiation of the Model Protocol, many non-nuclear weapon state parties to the NPT urged the United States, as the strongest proponent, to accept on

a voluntary basis the provisions of the Model Protocol. Following the example of the

Voluntary Offer, the United States stated during the negotiations that it would accept the provisions of the Model Protocol, subject to a National Security Exclusion.

By submitting itself to the same safeguards on all of its civil nuclear activities that

non-nuclear weapon state parties to the NPT are subject to, the United States intends to demonstrate that adherence to the Model Protocol does not place other

countries at a commercial disadvantage.

The United States took a leading role in the negotiations of the Model Protocol.

Several other industrialized states, including close allies, were hesitant to support

so substantial an expansion of declaration requirements and IAEA inspection powers. Our success in achieving a strong Model Protocol was critically dependent on

our voluntary acceptance of the Model Protocol measures. Similarly, U.S. signature

of our Additional Protocol was a significant factor in the early decision by many

non-nuclear weapon states to accept the Protocol. A number of our close friends and

allies have also relied on our pledge in persuading their legislatures to approve their

Additional Protocols.

Nevertheless, implementation of the USAP is fundamentally different in concept

from implementation of the Additional Protocol in non-nuclear weapon states. While

the fundamental purpose of the Model Additional Protocol is to provide increased

assurance that non-nuclear weapon states do not have undeclared nuclear activities,

all states understand that nuclear weapon states will have undeclared activities. It

is a matter of public record that we have, and are entitled to have, such activities.

This has important consequences. References in the U.S. Additional Protocol to the

‘‘completeness and correctness’’ of U.S. declarations or possible ‘‘inconsistencies’’ in

them have meaning only in the context of what we need to report; this excludes

what we do not need to report, i.e., anything we determine to fall within the ‘‘national security exclusion.’’ Thus, the right of the Agency to seek access to undeclared

locations in the United States (Article 5.c) is uniquely limited. The IAEA does not

have access rights under the Protocol to locations and activities that the United

States excludes pursuant to the National Security Exclusion.

Where not excluded on national security grounds, however, the United States will

be required to declare certain nuclear-related locations and activities and to allow

IAEA access under specified circumstances. While such access will be infrequent in

non-nuclear weapon states we believe it is likely to be even more infrequent in the

United States, but may nevertheless occur.

The Additional Protocol requires the United States to provide information to the

IAEA about locations, such as mines and concentration plants, producing or storing

uranium and thorium or other materials that could serve as feed material for the

nuclear fuel cycle. There is no provision for routine verification of these declarations,

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but the IAEA can seek access to these locations ‘‘on a selective basis in order to assure the absence of undeclared nuclear material and activities.’’

Certain nuclear fuel cycle-related R&D and industrial activities will also be subject to declaration. IAEA access to these locations is allowed only if needed to resolve a question or inconsistency regarding U.S. declarations, normally only after

the IAEA provides the United States an opportunity to clarify and resolve the question or inconsistency. If Agency concerns can be addressed through additional information from the United States, access is not required. If such visits do occur, socalled ‘‘managed access’’ techniques can be used to protect sensitive proprietary or

commercially sensitive information from disclosure. Where managed access cannot

sufficiently protect information of direct national security significance, the national

security exclusion will be applied and Agency access will be denied.

The IAEA will also have the right to request access to locations of its own choosing. The United States, as a nuclear weapon state, has the right to deny access to

any location where it deems the risk of disclosing national security information to

be unacceptable; U.S. Government policy is to exercise this right as necessary.

PROTECTING SENSITIVE INFORMATION

Throughout the negotiation of the Model Additional Protocol, there was strong interest in giving the IAEA the tools it needed to conduct inspections while protecting

the rights of the states inspected. The U.S. Additional Protocol, in addition to the

national security exclusion, includes all the protections for commercially sensitive

information contained in the Model Protocol. For example:

• Information on nuclear R&D activities that must be declared to the IAEA is

limited to location and general description and does not include details or results;

• Similarly, the required information on nuclear-related manufacturing is also

limited to location and the scale of operation without details;

• Access is designed to be infrequent;

• Inspection activities are limited and relevant to detection of undeclared nuclear

material and activities;

• Unlike the Chemical Weapons Convention, there is no provision in the Safeguards Agreement or the Additional Protocol for any other state to request access in the United States.

• The IAEA is required to maintain a stringent regime for protection against disclosure of commercial, technological and industrial confidential information, and

the regime is subject to periodic review and approval by the United States and

other Board members;

• Only those individuals to whom the United States agrees may be assigned by

the IAEA to conduct inspections in the United States under the U.S. safeguards

agreement or for access under the U.S. Additional Protocol;

• Whenever requested by the United States, managed access arrangements must

be used to prevent disclosure of proliferation sensitive information, or proprietary or commercially sensitive information;

• Both the IAEA and its officers or employees may be subject to legal process in

the event of unauthorized disclosure of confidential information. The IAEA can

withdraw immunity of inspectors in eases of abuse.

In addition, complimentary access visits to locations in the United States will only

be conducted consistent with the Fourth Amendment. This requirement was communicated, at the request of the Department of Justice, by a letter from Ambassador

Kenneth Brill to the IAEA on January 23, 2004. Although, the IAEA has not yet

responded to this letter, we expect a favorable response, and of course, will formally

ratify the Treaty only after the IAEA communicates to us its acceptance.

IMPLEMENTING LEGISLATION

The Administration has determined that some provisions of the U.S.-IAEA Additional Protocol are not self-implementing. These include:

• declarations of U.S. civil nuclear activities and related industry;

• restrictions on disclosure of information; and

• IAEA access to locations in the United States.

Implementing legislation, therefore, is required in order to give these provisions effect within the United States. The administration was pleased to provide its recVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00082 Fmt 6601 Sfmt 6621 108-12.TXT SFRELA2 PsN: SFRELA2
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ommended legislation to the Congress late last year. We look forward to working

closely with you on preparation of the final legislation.

In this regard, I would like to reinforce how important it is to the Administration

that the implementing legislation for the U.S. Additional Protocol restricts appropriately the disclosure of information provided by U.S. entities to the United States

Government in execution of Protocol obligations. Under the Administration’s proposal, such information could be disclosed only to U.S. Government officials, U.S.

Government contractor personnel, and officials of the IAEA Secretariat with a clear

‘‘need to know.’’ This practice will ensure that the data collected under the Protocol

will be used exclusively for the purposes of the safeguards regime. We, therefore,

request that the implementing legislation for the Additional Protocol exempt information obtained by the United States Government in implementing the provisions

of the Additional Protocol from disclosure under the Freedom of Information Act

(FOIA).

In conclusion, Mr. Chairman, the Administration believes that Senate advice and

consent to ratification of the U.S. Additional Protocol will advance the national security interests of the United States by strengthening the global nuclear non-proliferation regime. At the same time, the Administration believes that adequate protections have been built into the Protocol to ensure that its application in the United

States will not compromise activities or information of direct national security significance.

Thank You. I look forward to your questions.

The CHAIRMAN. Thank you very much, Secretary Burk.

Let me indicate that, as you mentioned, we had a good conversation with Secretary Bolton last week. He came to brief me on developments in Libya and indicated he would be in Russia today, and

I commended that effort. I appreciate your mention specifically of

him and his endorsement, obviously, and perhaps his help in the

preparation of your testimony.

Secretary Esper.

STATEMENT OF MARK T. ESPER, DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR NEGOTIATIONS POLICY, U.S. DEPARTMENT OF DEFENSE, WASHINGTON, DC

Mr. ESPER. Good morning, Mr. Chairman.

Thank you for the opportunity to testify before the Senate Foreign Relations Committee in support of the United States-IAEA

Additional Protocol. My remarks today will address the purpose

and benefits of the Additional Protocol, the likely impact of the Protocol on the Department of Defense, and the role of the Department

in implementing the Protocol.

The Defense Department supports ratification of the Additional

Protocol because doing so demonstrates United States’ leadership

in non-proliferation and may encourage non-nuclear weapon states

to do the same. Widespread adoption of the Additional Protocol by

other nations, and particularly by states of proliferation concern,

would help the International Atomic Energy Agency detect or prevent the proliferation of the technology and material needed for nuclear weapons.

Even though the United States, as a declared nuclear power, is

under no obligation to adhere to the Protocol, by voluntarily imposing these requirements on ourselves we are in a stronger position

to press other members of the Non-Proliferation Treaty to follow

our example.

The universal acceptance of the Additional Protocol will help improve shortfalls in the IAEA’s standing Safeguards Agreements.

These deficiencies were highlighted by the discovery of Iraq’s nuclear weapons program after the first gulf war, as well as by recent

84

revelations of illicit nuclear activities by states under existing safeguards, such as Iran and Libya. The Protocol’s declaration requirements and access provisions will make it harder for states to conceal such illicit activities in the future.

During the negotiations of the Model Protocol, many NPT states

parties pushed to watered-down provisions of the document, arguing that the intrusiveness of the Protocol’s measures and the costs

to industry would be too great. This, they argued, would place

them at a commercial disadvantage with respect to the United

States. To defuse this argument, the United States pledged to accept the Protocol in its entirety, even though the United States is

an acknowledged nuclear weapons state. Our only changes were

the addition of the national security exclusion and managed-access

provision, both of which are necessary to protect information of direct national security significance. As a recognized nuclear weapons

state, these changes are both necessary and logical.

The Administration fully recognizes that adopting an instrument

designed to detect the diversion of nuclear material in non-nuclear

weapon states is not without risk. The intrusiveness of the Additional Protocol, both in terms of declaring activities and allowing

access by inspectors, is significant. However, we are confident that

liberal use of the protections afforded the United States by way of

the national security exclusion and the use of managed access to

protect sensitive information and activities can mitigate this risk.

We believe that these measures and others will form an integrated

framework to protect our equities. The interdependent nature of

these measures requires that all of them be employed in order to

effectively manage the risks.

The United States will make full and repeated use of these provisions in order to protect information, locations, and activities of national security significance. Decisions regarding the use of these

provisions are a unilateral prerogative of the United States. They

are not subject to interpretation by, or justification to, any other

party, including the IAEA. As this is an area of particular importance for the Department of Defense, I will speak to it at some

length.

The national security exclusion is a critical protection for the

United States. Under this provision, the United States can exclude

information and activities from declarations and deny access to

IAEA inspectors anytime, anyplace. In the declaration process, the

national security exclusion will be used to exclude locations, activities, and information of national security interest. The United

States, unlike non-nuclear weapon states, has, and will continue to

have, undeclared nuclear material and activities outside the scope

of the Additional Protocol. Certain activities that occur at locations

that are part of the United States’ civil nuclear program may also

be excluded from the declaration and access provisions of the Additional Protocol, in accordance with the terms of the national security exclusion.

Since the United States will have undeclared nuclear activities,

IAEA activities directed toward the detection of these activities in

the United States are not considered necessary to enhance non-proliferation or to serve the purpose of the Additional Protocol. Rather,

the United States expects the IAEA to seek access in the U.S. for

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the purpose of increasing the effectiveness of IAEA safeguards—at

facilities in non-nuclear weapon states or enhancing the capability

of the IAEA to detect undeclared nuclear material and illicit activities in such states.

As a general rule, declarations will not be made for any current

or former sites, facilities, or locations that are owned or operated

by the Department of Defense, or for other locations that have sensitive Defense Department equities associated with them. The most

likely exception may be the Department of Energy sites to which

we currently allow limited IAEA access in fulfillment of our existing Voluntary Offer. Adoption of the Additional Protocol will in no

way expand IAEA access or rights at Department of Energy locations associated with sensitive Defense Department equities.

The United States, as a nuclear weapon state, has different prerogatives than non-weapon states, and will, as Ambassador Brill

has already made clear in writing to the IAEA, make, quote, ‘‘full

and repeated use,’’ unquote, of the national security exclusion and

managed access, to protect those prerogatives.

The concept of managed access provides an additional method to

protect sensitive information and activities at all locations. These

measures range from shrouding and closing doors, to turning off

the computers and other equipment to prevent IAEA inspectors

from coming into contact with sensitive information. As with the

national security exclusion, managed access measures will be applied liberally to ensure sensitive information is protected.

Of course, it is important to note that before and during inspections, any agency with a national security equity may either declare a national security exclusion or employ managed access procedures, even if it is not the lead agency.

Article 1 of the Additional Protocol allows the United States to

invoke managed access to ensure that national security information

is protected. The specific measures taken will be site specific.

In addition to this provision, Article 7 permits the United States

to invoke managed access to prevent the dissemination of proliferation-sensitive information, to meet safety or physical protection requirements, or to protect proprietary or commercially sensitive information. Moreover, inspectors will be escorted at all times when

at, or in proximity of, inspected locations. For those possible few activities with a Defense Department equity that DOD allows to be

declared, the Department will have experts on the escort team in

addition to the Defense Threat Reduction Agency personnel who

will take part in the inspection.

Environmental sampling is performed by the IAEA to detect the

presence of undeclared nuclear activities. As a nuclear weapon

state, the United States is allowed and expected to have undeclared

nuclear activities. The United States does not foresee circumstances in which the IAEA would propose to conduct wide-area

environmental sampling in the United States, and believes that

IAEA requests for location-specific environmental sampling in the

U.S. would be unlikely.

While such sampling would have little utility for Additional Protocol purposes in the United States, it could reveal information of

national security significance, including the presence of sensitive

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curity exclusion, the United States will not allow environmental

sampling with respect to such current or former locations, information, and activities.

In addition to the national security exclusion and managed access measures, the United States will continue to review the IAEA

list of inspectors nominated for inspection duty in the United

States. Within the executive branch, concerned agencies will conduct separate checks on any potential inspectors. Any inspector

suspected of being a national security risk will be flagged, and the

IAEA will be notified that the person should not be designated as

an inspector to the United States. In fact, the United States has

already informed the IAEA that no individuals from states sponsors of terrorism would be allowed to serve as inspectors in the

United States. We will continue to employ these vetting procedures

to ensure sensitive information and activities are protected.

In order to gauge risk at specific locations, vulnerability assessments will be conducted at potentially declarable sites that have

national security equities. Once our implementation guidance has

been clarified, and implementing legislation passed, we will revisit

and update assessments that have been previously conducted. We

are also reviewing what other sites may require vulnerability assessments. These assessments will vary based on the nature and

location, among other things, of the site or activity. Some will be

fairly simple, while others will require a more detailed examination.

The key point is that the United States will complete all necessary assessments and implement all required security procedures

prior to submitting our first Additional Protocol declaration, as due

to the IAEA.

Of course, the Nuclear Regulatory Commission, the Department

of Energy, and the Department of Commerce are responsible for

conducting vulnerability assessments for locations under their jurisdiction. Nevertheless, the Defense Department will work closely

with these agencies on those locations with Defense equities to ensure these assessments are thorough and timely.

Finally, it is important to note that the United States may remove locations from our Additional Protocol declaration at any time

for national security reasons, and will do so as necessary. And because of the constantly changing security environment, the vulnerability of all declared locations will be reviewed regularly. In short,

vulnerability assessments and security planning will continue to

play an integral part in the preparation for making declarations to

the IAEA, and allowing IAEA access to declared locations.

One of the United States concerns is the protection of declared

data once it is submitted to the IAEA. The United States, through

its voluntary contributions to the IAEA, has provided technical assistance to the IAEA to improve its information security and its

safeguards information systems. The IAEA makes regular reports

to the Board of Governors on its progress in implementing security

improvements in this area.

The United States declaration submitted to the IAEA will be

based on data provided by each agency to the Department of Commerce’s Additional Protocol Reporting System. Before the Defense

Department submits its data into that system, we will develop our

87

own procedures and systems to evaluate relevant declaration data,

individually and aggregated, to mitigate any risks. Further, the Defense Department will work closely with other agencies to review

draft declaration inputs to ensure no Defense Department sensitive

or classified data is collected in the APRS.

In conclusion, Mr. Chairman, the administration believes that

Senate advice and consent to ratification of the U.S. Additional

Protocol will advance the national security interests of the United

States. Ratification of the Additional Protocol demonstrates United

States leadership in, and commitment to, non-proliferation. The

United States ratification of the Protocol may also encourage some

non-nuclear weapon states to do the same. As a result, universal

adoption of the Additional Protocol will provide the IAEA an important tool to help detect or prevent proliferation of the technology

and material needed for nuclear weapons. At the same time, adequate protections have been incorporated into the protocol signed

by the United States to allow us to prevent the compromise of sensitive activities and information.

Thank you, Mr. Chairman. I look forward to your questions.

[The prepared statement of Mr. Esper follows:]

PREPARED STATEMENT OF DEPUTY ASSISTANT SECRETARY MARK T. ESPER

Mr. Chairman, Senator Biden, Members of the Committee:

Thank you for the opportunity to testify before the Senate Foreign Relations Committee in support of the United States-IAEA Additional Protocol. My testimony will

address the purpose and benefits of the Additional Protocol, the likely impact of the

Protocol on the Department of Defense, and the role of the Department in implementing the Protocol.

PURPOSE AND BENEFITS OF THE ADDITIONAL PROTOCOL

The Defense Department supports ratification of the Additional Protocol because

doing so demonstrates the United States’ leadership in nonproliferation, and may

encourage non-nuclear weapon states to do the same. Widespread adoption of the

Additional Protocol by other nations—and particularly by states of proliferation concern—would help the International Atomic Energy Agency (IAEA) detect or prevent

the proliferation of the technology and materiel needed for nuclear weapons.

Even though the United States, as a declared nuclear power, is under no obligation to adhere to the Protocol, by voluntarily imposing these requirements on ourselves, we are in a stronger position to press other members of the Non-Proliferation

Treaty (NPT) to follow our example. In doing so, we are supporting the work of the

IAEA in verifying the absence or diversion of nuclear materials in non-nuclear

weapons states.

The universal acceptance of the Additional Protocol will help improve shortfalls

in the IAEA’s standing Safeguard Agreements. These deficiencies were highlighted

by the discovery of Iraq’s nuclear weapons program after the first Gulf war, as well

as by recent revelations of illicit nuclear activities by states under existing safeguards, such as Iran and Libya. The Protocol’s declaration requirements and access

provisions will make it harder for states to conceal such illicit activities. Not only

must more nuclear-fuel-cycle-related activities be declared, but the IAEA will also

have intrusive rights in non-nuclear weapons states to investigate inconsistencies

and suspicious activities.

During the negotiations of the Model Protocol, many NPT States Parties pushed

to water down provisions of the document, arguing that the intrusiveness of the Protocol’s measures and the costs to industry would be too great. This, they argued,

would place them at a commercial disadvantage with respect to the United States.

To defuse this argument, the United States pledged to accept the Protocol in its entirety, even though the United States is an acknowledged nuclear weapons state.

Our only changes were the addition of a national security exclusion and managed

access provision, both of which are necessary to protect information of direct national security significance. As a recognized nuclear weapons state, these changes

are both necessary and logical.

88

PROTECTING NATIONAL SECURITY EQUITIES UNDER THE PROTOCOL

The Administration fully recognizes that adopting an instrument designed to detect the diversion of nuclear material in non-nuclear weapons states is not without

risk. The potential intrusiveness of the Additional Protocol both in terms of declaring activities and allowing access by inspectors is significant. However, we are confident that liberal use of the protections afforded the United States by way of the

national security exclusion and the use of managed access to protect sensitive information and activities can mitigate this risk. We believe that these measures and

others will form an integrated framework to protect our equities. The interdependent nature of these measures requires that all of them be employed in order

to effectively manage the risks.

The United States will make full and repeated use of these provisions in order

to protect information, locations, and activities of direct national security significance. Decisions regarding the use of these provisions are a unilateral prerogative

of the United States; they are not subject to interpretation by, or justification to,

any other party, including the IAEA. As this is an area of particular importance for

the Department of Defense, I will speak to it at some length.

National Security Exclusion

The national security exclusion is a critical protection for the United States.

Under this provision, the United States can exclude information and activities from

declarations and deny access to IAEA inspectors anytime, anyplace. In the declaration process, the national security exclusion will be used to exclude locations, activities, and information of direct national security interest.

The United States, unlike non-nuclear weapons states, has and will continue to

have undeclared nuclear material and activities outside the scope of the Additional

Protocol. Certain activities that occur at locations that are part of the United States

civil nuclear program may also be excluded from the declaration and access provisions of the Additional Protocol in accordance with the terms of the national security exclusion.

Since the United States will have undeclared nuclear activities, IAEA activities

directed toward the detection of these activities in the United States are not considered necessary to enhance nonproliferation, or to serve the purpose of the Additional

Protocol. Rather, the United States expects the IAEA to seek access in the U.S. for

the purpose of increasing the effectiveness of IAEA safeguards at facilities in nonnuclear weapons states, and enhancing the capability of the IAEA to detect

undeclared nuclear material and illicit activities in such states.

As a general rule, declarations will not be made for any sites, facilities, or locations that are owned or operated by the Department of Defense, or for other locations that have sensitive Defense Department equities associated with them. The

most likely exception may be the Department of Energy sites to which we currently

allow limited IAEA access in fulfillment of our existing Voluntary Offer. Adoption

of the Additional Protocol will in no way expand IAEA access or rights at Department of Energy locations associated with sensitive Defense Department equities.

The United States, as a nuclear weapons state, has different prerogatives than

non-weapon states, and will, as Ambassador Brill has already made clear in writing

to the IAEA, make ‘‘full and repeated use’’ of the national security exclusion and

managed access to protect those prerogatives.

Managed Access

The concept of managed access provides an additional method to protect sensitive

information and activities at all locations. These measures range from shrouding

and closing doors, to tuning off computers and other equipment to prevent IAEA inspectors from coming into contact with sensitive information. As with the national

security exclusion, managed access measures will be applied liberally to ensure sensitive information is protected.

Of course, it is important to note that before and during inspections, any agency

with a national security equity may either declare a national security exclusion or

employ managed access procedures, even if it is not the lead agency. Article 1 of

the Additional Protocol allows the U.S. to invoke managed access to ensure that national security information is protected. The specific measures taken will be site-specific.

In addition to this provision, Article 7 permits the United States to invoke managed access to prevent the dissemination of proliferation-sensitive information, to

meet safety or physical protection requirements, or to protect proprietary or commercially sensitive information.

Moreover, inspectors will be escorted at all times when at, or in proximity of; inspected locations. For those possible few activities with a Defense Department eqVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00088 Fmt 6601 Sfmt 6621 108-12.TXT SFRELA2 PsN: SFRELA2
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uity that DOD allows to be declared, the Department will have experts on the escort

team, in addition to the Defense Threat Reduction Agency (DTRA) personnel who

will take part in the inspection.

Environmental sampling is performed by the IAEA to detect the presence of

undeclared nuclear activities. As a nuclear weapon state, the United States is allowed (and expected) to have undeclared nuclear activities. The United States does

not foresee circumstances in which the IAEA would propose to conduct wide area

environmental sampling in the United States, and believes that IAEA requests for

location-specific environmental sampling in the United States would be unlikely.

While such sampling would have little utility for Additional Protocol purposes in

the United States, it could reveal information of direct national security significance, including the presence of sensitive undeclared activities. Therefore, in accordance with the national security exclusion, the United States will not allow locationspecific environmental sampling with respect to such locations, information, and activities.

Inspector Vetting

In addition to the national security exclusion and managed access measures, the

United States will continue to review the IAEA list of inspectors nominated for inspection duty in the United States. This is a process that begins when the IAEA

identifies staff for designation as inspectors and provides their names to the IAEA

Board of Governors for approval. This list, which is normally submitted to IAEA

Member States approximately one month before the Board of Governors meeting,

is forwarded to the United States IAEA Steering Committee for interagency review.

Within the executive branch, concerned agencies will then conduct separate

checks. Any inspector suspected of being a national security risk will be flagged and

the IAEA will be notified that the person should not be designated as an inspector

to the United States. In fact, the U.S. has already informed the IAEA that no individuals from state sponsors of terrorism would be allowed to serve as inspectors in

the United States. Within the last decade, the U.S. has rejected approximately 10

proposed inspectors. We will continue to employ these vetting procedures to ensure

sensitive information and activities are protected.

Vulnerability Assessments

In order to gauge risk at specific locations, vulnerability assessments will be conducted at potentially declarable sites that have national security equities. Once our

implementation guidance has been clarified and implementing legislation passed, we

will revisit and update assessments that have been previously conducted. We are

also reviewing what other sites may require vulnerability assessments. These assessments will vary based on the nature and location, among other things, of the

site or activity. Some will be fairly simple, while others will require a more detailed

examination. The key point is that the United States will complete all necessary assessments and implement all required security procedures prior to submitting our

first Additional Protocol declaration as due to the IAEA.

Of course, the Nuclear Regulatory Commission, the Department of Energy, and

the Department of Commerce are responsible for conducting vulnerability assessments for locations under their jurisdiction. Nevertheless, the Defense Department

will work closely with these agencies on those locations with Defense equities to ensure these assessments are thorough and timely.

Finally, it is important to note that the United States may remove locations from

our Additional Protocol declaration at any time for national security reasons, and

will do so as necessary. And, because of the constantly changing security environment, the vulnerability of all declared locations will be reviewed regularly. In short,

vulnerability assessments and security planning will continue to play an integral

part in the preparation for making declarations to the IAEA and allowing IAEA access to declared locations.

IAEA Protection of Declared Data

One of the United States’ concerns is the protection of declared data once it is

submitted to the IAEA. Because information submitted to the IAEA under the Additional Protocol will be more detailed, there are penalties—to include potential exposure to civil and criminal action—for IAEA officials found to be in breach of their

obligations.

The United States (through its voluntary contributions to the IAEA) has provided

technical assistance to the IAEA to improve its information security in its safeguards information systems. The IAEA makes regular reports to the Board of Governors on its progress in implementing security improvements in this area.

The United States’ declarations submitted to the IAEA will be based on data provided by each agency to the Department of Commerce’s Additional Protocol ReportVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00089 Fmt 6601 Sfmt 6621 108-12.TXT SFRELA2 PsN: SFRELA2
90

ing System (APRS). Before the Defense Department submits its data into that system, we will develop our own procedures and systems to evaluate relevant declaration data, individually and aggregated, to mitigate any risks. Further, the Defense

Department will work closely with other agencies to review draft declaration inputs

to ensure no Defense Department sensitive or classified data is collected in the

APRS.

That said, it is also important that the implementing legislation for the United

States’ Additional Protocol exempt information provided by U.S. entities to the

United States Government in execution of Protocol obligations from disclosure under

the Freedom of Information Act.

CONCLUSION

In conclusion, the Administration believes that Senate advice and consent to ratification of the U.S. Additional Protocol will advance the national security interests

of the United States. Ratification of the Additional Protocol demonstrates the

United States’ leadership in, and commitment to, nonproliferation.

United States’ ratification of the Protocol may also encourage non-nuclear weapon

states to do the same. As a result, universal adoption of the Additional Protocol will

provide the IAEA an important tool to help detect or prevent proliferation of the

technology and materiel needed for nuclear weapons. At the same time, adequate

protections have been incorporated into the Protocol signed by the United States to

allow us to prevent the compromise of sensitive activities and information.

Thank you, Mr. Chairman. I look forward to the Committee’s questions.

The CHAIRMAN. Well, thank you very much, Secretary Esper, for

your testimony.

As all of you observed, the Protocol touches upon the responsibilities of many Departments of our Federal Government. The witnesses today represent four prominent Departments, namely State,

Energy, Commerce, and Defense. The Chair would recognize, as I

started the hearing and received testimony from various other

agencies, which will be part of the record, that there are several

more agencies involved. Indeed, if we had included at the table

today all the agencies that felt they had a stake and wanted to testify on behalf of the Protocol, plus a good number of very important

private groups who likewise share the sense of urgency of this,

why, our hearing would have been more extended. Nevertheless,

we have been assured by the administration that the four of you

are very good representatives of the feeling of the President of the

United States and his administration.

Let me say, at the outset of these questions, that I have a set

of questions that I will read, because they have been carefully prepared by staff, many of them in consultation either with you or

your staff. In this forum, for those looking at the record and wanting a specific answer, whether it be a Senator, on either side of the

aisle, or a staff member, or a member of the administration, they

will be able to easily find it.

My first two questions are for you, Secretary Burk. The first is,

do the Secretary of State and his Under Secretary for International

Security and Arms Control, John R. Bolton, fully support U.S. Senate ratification of the Additional Protocol, consistent with President

Bush’s letter of transmittal, which states that universal adoption

of the Protocol is, ‘‘a central goal of my nuclear non-proliferation

policy’’?

Ms. BURK. Thank you, Mr. Chairman.

I actually met with Secretary Powell last night in preparation for

this hearing, and he made it clear that I should reaffirm the support he and the Department—his full support for the administration on this issue. And I have addressed Under Secretary Bolton’s

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position in my testimony specifically. So I hope that answers the

question.

The CHAIRMAN. And so the answer is yes.

[Witness nods her head, affirmatively.]

The CHAIRMAN. Now, the second question, Will the Secretary of

State and his Under Secretary for International Security and Arms

Control, John R. Bolton, agree to support the committee’s resolution of ratification, once agreed with the administration, without

changes?

Ms. BURK. My understanding is yes.

The CHAIRMAN. Thank you very much for that testimony.

Ambassador Brooks, Secretary Lichtenbaum, and Secretary

Esper, given that the first United States declaration must occur,

under Article 3 of the Protocol, within 180 days of its entry into

force, and assuming Senate ratification of the Protocol within the

next 2 months and favorable congressional consideration of its implementing legislation, will the panel now comment on whether

they believe all such preparations will have occurred so as to enable the United States to meet its obligations under the Protocol?

Ambassador Brooks, do you have a response?

Ambassador BROOKS. The answer, Mr. Chairman, is that we will

not allow it to enter into force until we are fully prepared to meet

our obligations, and I see no reason why we won’t be fully prepared. So, yes, we’ll meet our obligations, but we control the timing

of actual entry into force, and we would not allow it to enter into

force until we were prepared to meet our obligations under that.

The CHAIRMAN. I thank you.

Secretary Lichtenbaum, do you have a response?

Mr. LICHTENBAUM. I would concur with that assessment, and

note, as stated in the written testimony submitted, that in order

to ensure that proper protections are established and that industry

has adequate time to understand and implement its reporting obligations, entry-into-force will not occur until Commerce publishes

its regulations in final form and vulnerability assessments at declared locations of direct national security significance are completed.

The CHAIRMAN. I thank you.

Secretary Esper.

Mr. ESPER. Yes, sir, that is correct. As I also said in my opening

remarks, we will ensure that all security procedures and vulnerability assessments are done prior to entry into force.

The CHAIRMAN. I thank you for your response.

Now, this question is directed to Ambassador Brooks and Secretaries Burk and Esper. As you have noted, IAEA inspections now

occur in the United States for highly enriched uranium and plutonium declared excess to United States defense needs. Secretary

Burk, your statement notes that over 250 facilities are now eligible

in the United States for inspection under our Voluntary Offer. Do

any of you expect, as a result of United States ratification and implementation of the Additional Protocol, the list of eligible sites to

grow? And, if so, by how much? And, furthermore, will any provision of the Additional Protocol harm United States stockpile flexibility or our ability to ensure a safe, secure, and reliable nuclear

deterrent?

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Ambassador Brooks.

Ambassador BROOKS. The list of sites will obviously grow. We

don’t know by how much. An order or magnitude, for this Department, is about a hundred. I want to distinguish between lists of

sites and presence of IAEA inspectors. I anticipate the International Atomic Energy Agency will be very sparing in seeking to

exercise its rights, since, after all, it already knows we’re a nuclear

weapon state.

With regard to your question about whether there will be any

harm to U.S. security, the answer is absolutely not.

The CHAIRMAN. Secretary Burk.

Ms. BURK. I agree with Ambassador Brooks completely, and I

also would note that the IAEA had not been conducting safeguards

inspections in the U.S. since 1993 until we asked them to come in

to inspect. So I would agree with his comment on the frequency,

as well.

The CHAIRMAN. Thank you.

Secretary Esper.

Mr. ESPER. Thank you, Mr. Chairman. As I said in my opening

remarks, we do not envision declaring any DOD-owned or operated

sites, either former or current. That said, there may be some additions based on sites that other agencies might declare that have

DOD equities if we should decide then to allow them to be declared. That would, of course, then require managed access procedures to be implemented. In both cases—or I should say, in all

cases—with liberal use and repeated use of either the national security exclusion or the managed access procedures, we are confident that we can protect national security equities. As such, we

don’t foresee any harm to U.S. security, provided we employ those

techniques appropriately.

The CHAIRMAN. Thank you.

Now, one further question. As the United States nuclear stockpile ages and changes over the course of the next several decades,

do we anticipate that more materials will be declared excess to

United States defense needs?

Ambassador Brooks.

Ambassador BROOKS. It’s reasonable to assume that, but I want

to be very careful not to prejudge decisions that the President

hasn’t made. As you know, the President, in the Treaty of Moscow,

has implemented a radical reduction in operationally deployed

weapons. And the two Departments continue to assess, continually,

as part of a normal process, our needs. So it’s certainly reasonable

to assume that there’ll be some additional materials, but I wouldn’t

speculate on amounts or timing.

I would say that it does not appear to me that any plausible future declarations would alter the subject that we are discussing

today. I mean, excess nuclear materials in the future will go where

excess nuclear materials now go. So I don’t believe that any hypothetical future declarations of excess material will alter the wisdom

of the course we’re recommending to you. But, of course, if it does,

we have this freedom, under the national security exclusion, to deal

with anything.

The CHAIRMAN. Secretary Burk, do you have a further comment

on that question?

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Ms. BURK. I would not have any further comment on that.

The CHAIRMAN. Secretary Esper.

Mr. ESPER. No, sir.

The CHAIRMAN. Well, thank you very much.

Let me ask this question. It arises from the testimony. I made

a note, as you were testifying, Secretary Burk, discussing early

IAEA inspections in Iraq. And you mentioned: Due to the lack of

authority to be more intrusive, it may be that inspectors in Iraq

have felt that they do not have permission to go to additional buildings on one site that you mentioned. Can you amplify this more?

Obviously, the inspection by IAEA in Iraq is a topical subject of

other committees’ hearings, as well as our own. Yet clearly one of

the reasons for the urgency of this Protocol and its consideration

is because the American public, and the rest of the world, are deeply concerned about the effectiveness of these international inspections. The Libya situation offers another avenue for taking a look

at what IAEA does. Likewise, Iran, as we’ve all mentioned today.

There may be others to come. The agency has been out of North

Korea for a few months; at some point, it may return.

If you can, would you flesh out, even more, what this means and

what the reasons are for why the United States believes that a

more comprehensive inspection authority is required? Why we are

likely to be safer, and why would the rest of the world be safer,

if that authority is, in fact, a part of this entire picture?

Ms. BURK. I would be happy to try to amplify it, and I could always provide more information, because there are—I have people

that are far more expert than I am. But my understanding, the

safeguards, originally and traditionally, were used and applied to

nuclear-material facilities that were declared by a state. And so the

IAEA, in carrying out its safeguards function, would visit those facilities that a state had identified for it to visit. What we discovered, much to our horror following the first gulf war, was that

there were activities right there onsite that were not declared. The

IAEA did not have the right to go and visit those buildings. And

so the members realized—the U.S., in particular, leading the

charge—that we needed to strengthen their authorities and their

ability to search out these other facilities to deal with this problem.

I’d like to offer a more detailed response on the history of this

that would be far more technically accurate, if you’d like.

[At the time of publication the response had not been received.]

But I think we’ve tried to close a gap, which we, again, as you’ve

mentioned, have seen reflected in the Iran case, in the Libyan case,

and so forth. And I would just offer an observation that these developments, I think, will give far more impetus to the Additional

Protocol, the Model Protocol, among the member states as states

begin to appreciate that these are not theoretical problems we’re

trying to solve, these are real problems, and that we may see greater adherence to the treaty.

So I think we’re going from simply declared facilities to now giving them the authority to ask questions about facilities that have

not been so declared, and hopefully close that gap. It’ll never be

perfect, it’ll never be watertight, but we believe it will give them

a far greater reach that will enable them, we think, to find some

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of the things that we’re finding out now, at a much earlier stage

so we can deal with them before they’re more advanced.

The CHAIRMAN. I think that you’ve testified quite accurately, just

as a historical matter, that after the first desert war with Iraq we

discovered—despite the fact that IAEA had the right to take a look

at certain facilities in Iraq—we were surprised that there were a

lot more. And, in fact, there was not authority. And so, at that

time, they were not discovered. So there’s a certain sense of shock

that all of this has been going on unknown to us. Of course, since

there was a fairly well-developing nuclear program, it was of special import.

Let me just say, on a personal note, that Ambassador Brooks

first came into my life because President Reagan named a bipartisan Senate Arms Control Observer Group sometime in the circa

1985–86 period, when there were new opportunities with the

former Soviet Union, including a Gorbachev invitation that looked

as if perhaps we were going to have intensive arms-control talks.

I remember seeing Ambassador Brooks in his office on the second

floor of this nondescript building in Geneva, where he held forth

for quite a period of time in one capacity or another, and was instructive to Senators, and a mentor, as we got into the weeds of

these very, very tough negotiations that did not happen right away.

It went on and on, like the brook, for months and for years.

I have commented, apropos of your testimony, Secretary Burk, to

those who are impatient as to why arms inspectors, if they have

access to sites, don’t simply fall over the materials and what have

you. In almost each instance in which I personally have been involved in—in Russia, for instance, in recent years, on the sites,

particularly of chemical and biological weapons situations, if I had

not had a very friendly Russian on the left hand and the right

hand, both pointing out to me the where and the what and the history and what was done and buried and what is still alive and so

forth, in most cases I would have been none the wiser. This is, to

say the least, even for somebody in the IAEA who makes a profession of this, an extremely artful experience to know what you’re

looking at.

Now, to be denied sites, to have buildings out there that you

don’t even have a chance to take a look at, even if you did not have

cooperative witnesses on the right and left hand, is really a speculative business.

And so, obviously, as I understand it—it’s in layman’s language—we’re talking today about how the world, not just the

United States—the United States is actually offering an example

of how to be forthcoming—but how the world finds out, with situations where countries are declaring, ‘‘We don’t have it. We’ve never

seen it,’’ or says, ‘‘We have a very limited program, but that’s all,’’

and defies the rest of the world to find the rest. Now, even this protocol, at its best, is not going to satisfy all of our curiosity, but it

is really an international attempt to try to get to the heart not only

of what is there, but, as you pointed out in your testimony, of illicit

trade, the movement of whatever, which might be a substance for

the development of a weapon or the machinery or the mechanics,

even the ideas that are involved. It’s an extremely important point,

95

in terms of our national security, not only in the war against terrorism, but also for the future of safety of our country.

This is not an anecdotal situation; you’re offering a historical

one—but try to amplify why, at least in my own judgment, this is

probably very important.

Ambassador Brooks, do you have any further comment about this

general area?

Ambassador BROOKS. As is often the case, Mr. Chairman, you

make our case better and more eloquently than we, ourselves.

The CHAIRMAN. Untrue, but you’re very generous.

Let me just ask this, for the benefit of a layperson listening to

this and hearing all of you offer, as you should, important reasons

why United States security would not be compromised by the Protocol, or United States business would not be disadvantaged in

competition with others, as we are all involved in international

trade. From the standpoint of persons from another country listening to this testimony, what would you say to a question with regard to its neutrality, in terms of their competitive efforts?

If, for example, you were a businessman or you were head of the

Department of Commerce of another state, and so forth, what is

the lay of the land here that offers a sense, to other nations, of fairness and of equity, as well as—obviously, this is the reason we all

get involved in this—the safety of the country, the security of the

country? That’s enhanced by international cooperation—188 nations, as I mentioned, involved in the first go, and hopefully the

same number, or more, involved in the second. But is this fair? And

if you’re listening, as I say, from another vantage point, other than

the United States, do you have confidence in the fairness of it?

Secretary Lichtenbaum, do you have a thought about that, from

the standpoint of the Commerce Department? Others of you may

have some thoughts.

Mr. LICHTENBAUM. Let me offer my thought, and then perhaps

others would care to offer theirs, as they would have had direct experience in the negotiating process with other countries.

My reaction is that that is a very important question for us to

ask, but, indeed, that that is an important part of the reason why

we are accepting these obligations, in order to show to other countries that we are willing to impose the same burden on our industry as will be imposed on their industry. In particular, the rights

that we have under this treaty to minimize the burden and protect

confidential information for industry are rights that are available

to other countries, so it’s not that we have a right to minimize the

burden or protect confidential information that they do not have.

The CHAIRMAN. Well, that’s a very important point, that even as

you are assuring United States Senators, the United States public,

that these are not excessive burdens on us, if others were offering

testimony, as they will need to, in their legislatures, they can make

these assurances to their publics.

Mr. LICHTENBAUM. Exactly right.

The CHAIRMAN. Well, it’s an important issue, because obviously

our focus today is to provide assurances to all of us.

Mr. LICHTENBAUM. Right.

The CHAIRMAN. At the same time, if this is to be effective, and

our leadership with regard to the other 187 countries is to be effecVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00095 Fmt 6601 Sfmt 6602 108-12.TXT SFRELA2 PsN: SFRELA2
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tive, they must understand the fairness to all of them, too. In a

sense of evenhandedness, I wanted to add that aspect to this, because I suspect that this hearing, although it deals with very technical matters, will be followed by a good number of other embassies

and publics of other countries, who will be deeply interested in our

discussion and how we look at it.

As all of you have mentioned, one difference with the United

States is that, from the beginning of this discussion, we were a declared nuclear power. We, in fact, demonstrated that in the second

world war. So there is not a sense that somehow, in a covert way,

this country is beginning to develop weapons of mass destruction.

It has been very clear that we have them. We’ve been leaders in

this. A great deal of our authority has come from both the fact that

we had these weapons and the fact that we are restrained in our

advocacy of controls. And I think that’s important, too. This is not

a situation where all of the countries start at the same point,

namely a half a century of development of these weapons.

Now, at this point in history, many nations, although not all,

would like to see the number of countries that are developing

weapons decline in number. That’s one reason why we welcome the

Libyan declarations in the same way we have welcomed declarations of other countries, who thought about it, may have proceeded

through certain stages, but ultimately decided that this was not in

their security interest, certainly not in the interest of their international relations with others. IAEA is involved in this business of

trying to constrain the development of countries that have declared

that they really don’t want to go there. A part of what we’re looking at here is not a situation of everybody at the same point of development.

Having said that, you know, a question will be raised, obviously,

by those who have weapons: ‘‘Are there the same security safeguards for us?’’ For instance, in the Russian Duma, if their foreign

relations committee was to have a deliberation like this, would the

administration witnesses be making the same assurances to Duma

members that you have been making to the Senate today?

Ambassador Brooks.

Ambassador BROOKS. Well, actually, because the Russian Federation, for whatever reason, chose to adopt a much narrower protocol, they wouldn’t have to. The reason we’re making these assurances goes back to the point that several of us has made about

United States leadership. We chose to adopt the entire Additional

Protocol, with only the addition of a national security exemption.

It’s not a national-inconvenience exemption, it’s not a national-burden-on-somebody-who-has-to-fill-out-a-form exemption; it’s a national security exemption. So we have chosen to accept the burdens

that we ask other states to accept, and we’ve done that for the reason I alluded to in my testimony, that, as a practical matter, we

are, in these areas, the preeminent nation in the world, and so our

example matters more than other people’s examples.

So I think that if my colleagues in Russia were testifying, they

would say that they had adequately protected national security.

But I think, actually, they went much farther than would have

been appropriate for us, as a global leader.

97

The CHAIRMAN. Where would the Chinese be on this same scale?

What kind of assurances do they have?

Ambassador BROOKS. Their protocol is also far more circumscribed than ours, and also includes, as I recall, the national

security exemption.

So I don’t believe any of the five nuclear weapon states under the

Non-Proliferation Treaty is approaching this question with any disregard for security. The difference is much in our willingness to accept burdens, inconveniences, extra work in order to demonstrate

that that’s not incompatible with the position of commercial leadership; and, thus, take not so much the other nuclear weapon states,

but the more advanced non-nuclear weapon states. And, we believe,

although one can never prove these things, that our willingness to

do that has already had an impact on some states that have chosen

to adopt Additional Protocols. And we believe, with the further impetus that Senate advice and consent will give us, that we will also

be able to garner in some more folks.

The CHAIRMAN. So, as you’ve all testified, essentially, even

though others who are nuclear powers may not have gone so far,

we have done so deliberately. We are attempting to take a leadership situation. This, as I understand it, is the President’s position,

and it is why he feels strongly that this is important at this particular time, not only in negotiation with others, but, as you said,

Ambassador Brooks, in setting an example, which may lead other

nations to have an internal debate. It may be a very covert, private

debate right now, but one in which the intensity of our feeling

about this is exemplified by the example that we are prepared to

set, despite the real political considerations of others who might

also go that far, who may be stimulated to do more, once again, by

our example. Is that a fair summation of the situation?

Ambassador BROOKS. Yes, sir.

The CHAIRMAN. Let me just ask whether there are any other additional comments any of you would like to make, beyond your

statements or your responses to questions that I’ve raised this

morning.

Well, if not, I thank you—— Yes?

Ambassador BROOKS. Yes, sir. You commented earlier on the absence of your colleagues, and I just wanted to say, on behalf of the

administration, how grateful we are to you. I know that these other

demands are extremely important, and the administration and all

of us here are grateful to your recognizing the importance of this

and continuing to hold this hearing. On behalf of the administration, I want to thank you, sir.

The CHAIRMAN. Well, thank you very much, Ambassador.

But let me just say, I, reciprocally, would like to say how much

I appreciate the administration’s emphasis in this area. I think it

already is bringing about some results in the world that are extremely important. And topically, as we note the materials coming

into Oak Ridge, Tennessee, yesterday from Libya, for example, this

is not an abstract question. Very important.

Thank you for coming. Thank you for your testimony. We will

share it with our colleagues.

And the hearing is adjourned.

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[Whereupon, at 11 a.m., the committee adjourned, to reconvene

subject to the call of the Chair.]

ADDITIONAL STATEMENTS SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. RONALD F. LEHMAN, PH.D.

Mr. Chairman, Members of the Foreign Relations Committee:

I am pleased to provide this statement on the US-IAEA Additional Protocol and

its strategic context. These are my personal assessments and are not necessarily the

views of any administration, organization, or institution with which I am now or

have been associated. Of course, my views are heavily influenced by my experiences,

many of which I have shared with you in the past.

Let me be very clear. I would urge the Committee to report favorably on consent

to ratification of the US-IAEA Additional Protocol. The Additional Protocol is a valuable enhancement of our nuclear nonproliferation tool kit and will promote stronger

cooperation around the world on nuclear nonproliferation. The Additional Protocol

does not solve all of our nonproliferation problems, but it will help. Like all nonproliferation tools, the Additional Protocol carries with it some costs and risks, but

in this case they are very manageable. Indeed, the process of optimizing the application of the Additional Protocol as it applies to others and applies to us will further

enhance our cooperation with the IAEA, our conduct of other inspections, and our

own confidence that we can secure sensitive information. The gains far outweigh the

costs. The details of implementation are important and must be considered carefully

on their own merits. Still, it would be a mistake to let the technical nature of the

document mislead us into underestimating the strategic importance of the Additional Protocol. The Additional Protocol is both a symbol of the need for bolder action on nonproliferation and a catalyst for further measures.

The Additional Protocol is an important milestone on a long journey toward removing the threats posed by nuclear proliferation. For the last year and a half, I

have been involved in a number of studies looking at the consequences of the

‘‘Atoms for Peace’’ speech delivered by President Dwight David Eisenhower on December 8, 1953. Fifty years ago, President Eisenhower offered his vision of how to

manage the risks and opportunities created by nuclear technology. He correctly predicted that this technology would spread widely. In retrospect, he may not have anticipated that more countries would have had nuclear research or power reactors at

the turn of the century than there were members of the United Nations at the time

he spoke. Eisenhower, in that speech, called for the creation of an ‘‘international

atomic energy agency.’’ Eisenhower envisioned that, from the beginning, what became the International Atomic Energy Agency (IAEA) based in Vienna, Austria,

would have two missions; namely, to help strengthen international security and to

promote the peaceful applications of nuclear technology. There is an inherent tension between these two missions, but synergy as well.

At the risk of great oversimplification, let me assert that the history of the IAEA

has been one of bringing nonproliferation from a de facto secondary priority to its

highest functional priority. This is a process still underway and its tools and standards are almost certainly well short of what is necessary to deal with some of the

potential proliferators and proliferation-enabling technologies we face today and will

face tomorrow. Nevertheless, the IAEA has come a long way. The IAEA is not the

only nonproliferation tool available to nations, but an enhanced IAEA can better

complement the broader range of actions necessary. We will continue to need a comprehensive nonproliferation strategy involving more than the IAEA. In undertaking

a more comprehensive approach, it is important to recognize that judgments made

and actions taken multilaterally and unilaterally can be strengthened as a consequence of implementation of the Additional Protocol.

Certainly, the IAEA cannot be relied upon alone to prevent proliferation. Nevertheless, a strong IAEA is important to the task. In its earliest days, governments

pressed the IAEA to focus primarily on the peaceful applications of nuclear technology in energy, agriculture, industry, and medicine. Today, advocates of peaceful

applications of nuclear technology increasingly understand that they must address

concerns about nonproliferation and vulnerability to terrorist exploitation or attacks.

Today, the IAEA has modernized its agenda to address these concerns. It needs the

tools, however, for the modern age in which our prosperity, health, and freedom are

dependent upon technologies that can be destructive in the wrong hands. The Additional Protocol is one of the tools we need to give us greater confidence that technologies will be used for beneficial and not malevolent purposes.

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The completion of the Nuclear Non-Proliferation Treaty (NPT) was the major step

in bringing nonproliferation into balance with the facilitation of peaceful applications as an IAEA priority. Over time, the NPT has been adhered to by all nations

with significant nuclear capabilities except three, and even these have relations

with the IAEA. Still, the NPT took many years to reach the current state of near

universality. France, China, Brazil, and Cuba, for example, joined very late. The

problem, then and now, is that one size does not fit all. Negotiating provisions that

are accepted as fair by all nations does not necessarily result in measures that are

effective in the prevention of proliferation in certain nations. As a result, early safeguards provisions erred on the side of restraint. The Additional Protocol is designed

to help correct this error resulting from too narrow a focus.

A major manifestation of that restraint was the preoccupation with fissile material and declared facilities. The message of the Manhattan Project and the comparable Soviet effort was that grand facilities and great resources were needed to

produce the nuclear material needed for weapons. The spread of nuclear knowledge

and many technologies related to nuclear weapons (computations, precision machine

tools, etc.) seemed inevitable, so why not concentrate on controlling material that

is produced in unique, relatively visible facilities. Focusing on declared facilities involved with material had the additional advantage of not bothering nations at other

locations where those nations are engaged in sensitive military or commercial activities. The problem with this scoping of the problem is that it is incomplete and becoming more inadequate every day. The Additional Protocol is the product of recognition that circumstances have changed and technologies are advancing.

Not too long ago, I was involved in a study of nuclear verification as it related

to North Korea. Our effort looked at scenarios under which Pyongyang might divert

nuclear material out from under the watchful eye of IAEA safeguards. Scenarios

were identified, but so were the fixes. In general, the problem is not diversion in

the face of IAEA inspections at declared facilities. The real problems were

undeclared activities, third-party assistance, and breakout from Treaty obligations,

all dangers for which the IAEA had not been given a sufficiently clear mandate.

Even intense implementation of the Additional Protocol in countries of concern cannot guarantee against these possibilities, but the Additional Protocol does give us

greater ability to discover evidence early and take more unified and decisive action

to turn things around. The Additional Protocol is not the only source of IAEA authority to pursue these concerns, but it will strengthen the IAEA’s hand in investigating undeclared activities, unreported imports or exports, and preparations for

breakout.

Indeed, a strong case can be made that many of the developments that are increasing the latent capacity of nations to produce nuclear weapons cannot be addressed without tools such as the Additional Protocol. I have in mind not only advances in lower cost and easier weapons technologies, but also such developments

as global talent pools and brain drain, international capital flows and great wealth

in some nations of concern, outsourcing of components and off-shore production,

gray and black markets in high technology including weapons, agile manufacturing,

just-in-time inventories, and rogue resources in failing states. Business as usual at

the IAEA cannot address these problems. While it is vital to understand what happened in Iraq over the last dozen years, it is even more important to recognize that

uncertainty about Iraq is part of the predictable pattern of uncertainty that has

been illustrated in Iran, North Korea, Libya, and earlier in Iraq after the Gulf War.

In nearly all these vital cases, the problem has been that the IAEA could not discover what in fact was there. Also, the IAEA has had little leverage on alleged shipments from countries such as Pakistan. The Additional Protocol will not make these

problems go away, but without the Additional Protocol the IAEA will be far less able

to help in dealing with these challenges.

As one who has spent much of his life negotiating agreements, I remain interested

in how the document is crafted, what it means, how it will be implemented, and

what the consequences will be, even at the technical level. One issue that seems

technical, nevertheless, fits into the broader strategic perspective I wish to

present—managed access. Managed access is not a new issue. The US Government

spent years assessing this problem as we negotiated the INF and START treaties

and the Chemical Weapons Convention. In theory, every facility that might be visited under the Additional Protocol is subject to challenge inspections under the

CWC. Still, one might expect a different probability and focus under the Additional

Protocol. The National Nuclear Security Administration (NNSA) has had to deal

with the issue of the CWC and rightly has begun a new set of studies and field exercises to deal with new possibilities. There are real risks and costs that must be

managed. At the same time, my own experience leads me to believe that we need

to be making these preparations in any case in support of our own national security.

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When we did the managed access studies for the CWC we discovered counter-intelligence weakness that had to be addressed, whether or not we faced managed access

because of one or another treaty obligations. In addition, we learned much about

how to conduct inspections in other countries under the conditions of managed access. Increasingly, as we seek to deal with the dangers associated with the spread of

dual-use technology and the increasing latency of weapons capabilities, we need to

develop the professional expertise to address threats to security while protecting

sensitive information. This is not a theoretical problem to be dealt with in paper

studies. The problem of balancing transparency and security requires the interaction of experts with diverse objectives. This means we must bring together in the

field, at real locations and facilities, production managers, security officers, intelligence specialists, and the like. This is another reason why the costs and risks of

the Additional Protocol, even though they must be managed, nevertheless also constitute a benefit. The Additional Protocol will help prepare us for the real world of

dual-use latency that is emerging in a way that better protects both innovation and

security.

Most debates concerning the role of the IAEA focus on supply-side controls over

fissile material. In reality, the primary drivers of proliferation are to be found on

the demand side, primarily regional security calculations and the nature of the regimes in power. The Additional Protocol would seem to be of limited importance

here because it is a supply-side tool. Such a conclusion would be a mistake. In fact,

the Additional Protocol may help both with efforts to improve regional security and

to promote policy or political change in the regimes of concern.

On the first point, many nations will make their decisions on their security futures, including in some cases the decision to go nuclear, based upon their own assessments of risk. A number of countries such as Japan place great importance on

the implementation of the Additional Protocol, universally and regionally. Northeast

Asia is a nuclear proliferation powder keg with many nuclear capable countries

watching what other nations are doing. Of greatest concern is North Korea, but it

is not the only country of concern in the region, especially to other nations in the

region. Although in my opinion far more than the Additional Protocol will be needed

to rollback the North Korean nuclear program, widespread application of the Additional Protocol is of particular value in this region in addressing the demand side

as well.

Likewise, on the matter of changes in the behavior or nature of regimes of concern, greater openness such as is associated with measures like the Additional Protocol along with any reduction in perceived threats may encourage political change

even in dictatorships. Such was the contribution, however small it might have been,

to the end of the Cold War regimes. Such soft regime change or reform cannot be

guaranteed, but it certainly can be encouraged. We will see what happens in Libya

and Iran, but clearly some political changes have been assisted by more intrusive

transparency and detailed interactions.

One significant weaknesses of the NPT has been a lack of clarity in the minds

of many over what in fact is prohibited. In its crudest form, violation of the NPT

has been associated with the first nuclear weapons detonation detected. In fact, the

obligations under the NPT are not to acquire nuclear weapons. Programs aimed at

acquiring nuclear weapons inevitably involve activities that are not concentrated at

declared facilities with nuclear material, and it is often information about these activities that inform threat assessments. Loose standards of compliance and

verification that fail to take into account these activities are doomed to be inadequate. The Additional Protocol embodies recognition of the tighter standards that

need to be applied to nuclear programs in their entirety, especially given the advance of nuclear capability around the world. Implementing the Additional Protocol

may catalyze debate about what is in fact prohibited, but the Additional Protocol

itself moves the center of gravity well toward the more comprehensive perspective

on what is prohibited that is shared by the US and others.

The greatest weakness in the current nonproliferation regime is clearly uncertain

enforcement. It is important to remember that the IAEA can encourage compliance,

but has limited ability to enforce compliance. Its actions, however, can be vital to

compliance, either in setting the stage for action or, unfortunately, demonstrating

that action is not likely to be forthcoming. A case in point is North Korea. The history of negotiations with North Korea is a painful one to review, but perhaps no

single event was more of a tipping point than the failure of the international community to back the IAEA decisively in 1993 when the Director-General sought to

conduct a ‘‘special inspection.’’ The special inspection, consider an extraordinary

measure, was requested by the IAEA because of discrepancies in North Korean declarations whose significance was magnified by other evidence of undeclared facilities

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and activities. Although the deeper reasons the international community hedged its

support of the IAEA in the Agency’s demand for ‘‘special inspections’’ are fundamentally political, the surface rationale was uneasiness in pressing for this novel intrusiveness in the face of sovereign resistance. Special inspections involved a phase

change in thinking about openness for many countries that had, invoking the spirit

of sovereignty, resisted even less intrusive earlier practices. Had the Additional Protocol been in force at that time, the IAEA might have received stronger support and

the international community might have been able to end North Korean noncompliance. In summary, ratification by the United States and other countries of their IAEA

Additional Protocols would help reduce, although not eliminate, several current

weaknesses in the nonproliferation regime. It would place higher priority on nonproliferation and clarify for nations and the IAEA their nonproliferation mandate.

It would help the IAEA perform its nonproliferation mission, and help other nations

and institutions as well. Ratification of the US-IAEA Additional Protocol would

demonstrate support for a stronger international nonproliferation norm deeply in

the interest of the United States, but it would also do so through an approach that

recognizes that not all nations present the same problem. In particular, the Additional Protocol process recognizes that the problems to be addressed in nuclear

weapons states and non-nuclear weapons states require different treatment in the

interest of all. Ratification of the Additional Protocol would help us have more flexibility to deal with this problem that one size does not fit all. Most importantly, it

would force recognition that nonproliferation action must address undeclared facilities, exports, and breakout even more than declared facilities. It would help address

important demand side issues such as closed regimes or regional threats that concern allies like Japan. It would codify tighter standards at a time in which a certain

enforcement fatigue has set in and a tendency to pronounce international norms

from on high is followed by business as usual. It would remove at least one pretext

that some nations have invoked asking why they should adhere if even the United

States has not. It would facilitate IAEA cooperation on a broader range of information and sources and would encourage the introduction of more effective monitoring

and control technologies. And it would strengthen the hands of those who would

take the steps necessary to enforce international nonproliferation obligations.

Mr. Chairman. This concludes my prepared remarks on the strategic aspects of

ratification of the US-IAEA Additional Protocol. Please let me know if you would

like me to address any other questions. Thank you.

PREPARED STATEMENT OF NUCLEAR ENERGY INSTITUTE

The Nuclear Energy Institute (NEI) is responsible for developing policy for the

U.S. nuclear industry. NEI’s 270 corporate and other members represent a broad

spectrum of interests, including every U.S. energy company that operates a nuclear

power plant. NEI’s membership also includes nuclear fuel cycle companies, suppliers, engineering and consulting firms, national research laboratories, manufacturers of radiopharmaceuticals, universities, labor unions and law firms.

America’s 103 nuclear power plants are the safest, most efficient and reliable in

the world. Nuclear energy is the largest source of emission-free electricity generation in the United States. Nuclear power plants in 31 states provide electricity for

one of every five homes and businesses in the nation, and the industry continues

to reach record levels for efficiency and electricity production. It is essential that

Congress adopt policies that foster the safe peaceful development of this vital part

of our nation’s and the world’s energy mix—and fulfill existing federal obligations,

such as the commitment to US/IAEA Applications of Safeguards.

My statement for the record addresses three key points:

1. The Senate should promptly act to ratify the IAEA Protocol.

2. Congress should take action on the implementation legislation for the Additional Protocol.

3. Implementation of the protocol on the commercial sector by the Nuclear

Regulatory Commission’s (NRC) and Commerce Department will not impose a

burden.

RATIFICATION OF IAEA PROTOCOL

The U.S. Senate must ratify the Additional Protocol in order to place it into affect.

This is very important from a policy perspective. First, given the important contributions that the peaceful uses of nuclear energy makes to society, it is critical

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for public confidence that we have, worldwide, a robust and effective nonproliferation regime. Ratification of the ‘‘Additional Protocol’’ will contribute towards enhancing that worldwide regime. Second, while a number of countries have ratified the

Additional Protocol a large number have not. U.S. leadership in ratifying the Additional Protocol will be instrumental in influencing the decisionmaking in some of

these countries. While we understand that other countries support the concepts of

the protocol, they don’t want to be obligated to the IAEA for anything that the U.S.

is not obligated to. Therefore, United States ratification of the Additional Protocol

removes that international impediment and should result in additional countries

ratifying it. The larger the number of countries supporting the Additional Protocol

the more robust the nonproliferation regime and the greater the pressure on other

countries to agree to comply with the IAEA inspection regime.

CONGRESS SHOULD TAKE ACTION ON IMPLEMENTATION LEGISLATION

This important legislation is needed to implement the provisions of the Protocol

to the Agreement of the International Atomic Energy Agency, (IAEA) regarding

Safeguards in the United States. The United States signed the Additional Protocol

in Vienna on June 12, 1998. President Bush submitted the Additional Protocol to

the Senate on May 9, 2002. The State Department sent the implementing legislation

to Congress on November 19, 2003, and asked that it be considered in conjunction

with the Senate’s advice and consent on the Protocol. The adoption of this agreement is an important step in demonstrating U.S. leadership in the fight against the

spread of nuclear weapons. The Additional Protocol will provide the United States

and the IAEA with another tool as we attempt to secure broader inspection rights

in non-nuclear-weapon states that are parties to the Treaty on the Nonproliferation

of Nuclear Weapons, (NPT). When the Committee on Foreign Relations reported out

the NPT in 1968, it noted that ‘‘the treaty’s fundamental purpose is to slow the

spread of nuclear weapons by prohibiting the nuclear weapon states which are party

to the treaty from transferring nuclear weapons to others, and by barring the nonnuclear weapon countries from receiving, manufacturing, or otherwise acquiring nuclear weapons.’’ Since the Senate ratified the NPT, we have seen 188 states join the

United States in approving the treaty. But recently we also have seen a disturbing

increase in the global availability of nuclear materials and reprocessing and enrichment technology. To ensure that these materials and technologies are devoted only

to peaceful purposes, the IAEA must have the power to conduct intrusive inspections at almost any location in a non-nuclear-weapon state to verify state parties’

commitments under the NPT. The world community has learned that existing safeguard arrangements in non-nuclear-weapon states do not provide the IAEA with a

complete and accurate picture of possible nuclear weapons-related activities. It is

critical that the IAEA have the ability to expand the scope of its activities in states

that pose a potential proliferation threat. At this point, the only means at the

IAEA’s disposal, beyond existing safeguards arrangements, is the Model Additional

Protocol.

The United States, as a declared nuclear-weapon state party to the NPT, may exclude the application of IAEA safeguards on its nuclear activities. Under the negotiated Additional Protocol, the United States also has the right to exclude activities

and sites of direct national security significance in accordance with its National Security exclusion. This provision is crucial to U.S. acceptance of the Additional Protocol and provides a basis for the protection of U.S. nuclear weapons-related activities, sites, and materials as a declared nuclear power. The Additional Protocol does

not contain any new arms control or disarmament obligations for the United States.

While there are increased rights granted to the IAEA for the conduct of inspections

in the United States, the likelihood of an inspection occurring in the United States

is very low. Nevertheless, should an inspection under the Additional Protocol be potentially harmful to U.S. national security interests, the United States has the

right, through the National Security Exclusion, to prevent such an inspection.

COMMERCIAL INDUSTRY IMPACT

The nuclear energy industry supports the administration’s proposal for implementation of the Additional Protocol. NEI on behalf of the nuclear industry has provided

written comments to the Commerce Department on its notice on proposed concept

for implementation of the Additional Protocol. NEI also has participated in several

meetings with the Commerce Department and the Nuclear Regulatory Commission

(NRC) discussing how the Additional Protocol will be implemented. Based on these

interactions the industry recognizes it will result in additional facility reporting and

facilities will have the potential for an IAEA inspection. NEI does not believe the

reporting and potential inspections will result in a burden on the nuclear industry.

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1 Although serving as a consultant to the Department of State, this statement represents his

personal views and does not necessarily reflect the views of the State Department or any other

part of the U.S. Government.

Therefore, NEI supports moving forward with the Additional Protocol and the legislation. We believe the benefit of the Additional Protocol to seek out clandestine nuclear programs in unstable and/or unfriendly countries out weight the minor addition reporting and minimal inspection potential. In the unlikely event that implementation of the Additional Protocol imposed an inappropriate burden on U.S. commercial interests, NEI will immediately advise the governmental entities responsible for implementing the requirements, and the congressional committees responsible for overseeing implementation.

SUMMARY

NEI supports the ratification of the Additional Protocol and the passage of the implementation legislation. This position is based on the small additional requirements placed on the U.S. nuclear industry being out weighted by the benefit to the

world of the IAEA having the use of the Additional Protocol. The passage of legislation protects U.S. national security interests, while strengthening the ability of the

IAEA to discover illegal nuclear weapons activities.

PREPARED STATEMENT OF AMBASSADOR NORMAN A. WULF 1

I thank the Committee for the opportunity to submit this statement for the

record. I was active in International Atomic Energy Agency (IAEA) matters for some

twenty years before retiring from the State Department in the fall of 2002. During

that period, one of my duties was to lead an interagency delegation first to multilateral negotiations that elaborated a Model Protocol Additional to Agreements between States and the IAEA for the Application of Safeguards (Model Protocol) and

subsequently in bilateral negotiations with the IAEA that led to the Protocol that

is before this Committee (Additional Protocol). It is identical to the Model Protocol,

except for the provisions in the first article dealing with the national security exclusion and with managed access for national security.

BACKGROUND

For the vast majority of states, IAEA safeguards flow from the obligation they assumed by becoming a party to the Treaty on the Nonproliferation of Nuclear Weapons (NPT). Article III of the NPT states:

Each non-nuclear-weapon State Party to the Treaty undertakes to accept

safeguards... for the exclusive purpose of verification of the fulfillment

of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons...

Prior to 1991, the Member States of the IAEA expected IAEA inspectors to rely

on a narrow interpretation of this clause, i.e., non-diversion of declared materials.

In simplistic terms, this meant the Agency did an annual inventory of nuclear materials that the State had declared and then used seals, surveillance cameras and

some additional measurements to ensure that the nuclear material remained at the

site until the next annual inventory. The inadequacies of this limited approach were

brought home dramatically after the first Gulf War. IAEA inspectors had been going

to an Iraqi facility for some years to check on declared materials in one building

while the Iraqis were engaging in clandestine enrichment activities in a nearby

building.

Spurred by this incident and prodded by its Member States, the IAEA systematically examined what it could do to ensure that the provisions of NPT Article III

were being met in a broader sense, i.e., that States were not cheating on their obligations not to manufacture or acquire nuclear weapons through the use of covert

or undeclared nuclear materials or activities. The Agency reviewed first the authority provided in existing comprehensive safeguards agreements. This led the Agency

to conclude that it had the authority to take environmental samples at declared facilities and to consider third party information. The Agency also determined that

it could require the provision of design information before nuclear facilities were

constructed. Potentially of most significance was the determination that existing

safeguards agreements provided the authority for the conduct of special inspections.

The utility of special inspections was reduced when the IAEA Board of Governors

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reaffirmed its availability but expressed the view that special inspections should be

utilized only in exceptional circumstances.

While the Agency and its Member States agreed that these existing authorities

were beneficial, they were inadequate by themselves to allow the Agency to provide

a meaningful assurance about the lack of undeclared nuclear activities and materials. The Agency Secretariat, following several years of drafting, circulated a draft

of the additional authorities it believed were needed. This was followed by the formation in June of 1996 of a committee, open to all member states, which used the

Secretariat draft as a basis for negotiating new authorities to be contained in a

model protocol.

NEGOTIATION OF THE MODEL PROTOCOL

The Committee met repeatedly over the course of a year with around 60 countries

participating in the negotiations. One of the first decisions was to follow the precedent established for comprehensive safeguards agreements. Rather than negotiating

the final text of a multilateral agreement, the committee decided to agree upon a

model and then have the individual states negotiate their own agreement with the

Agency based on that model. It was understood that non nuclear weapon states

under the NPT would have to accept all the provisions contained in the Model Protocol whereas nuclear weapon states and non-parties to the NPT would have greater

flexibility. Once an agreement was negotiated between a State and the IAEA, the

agreement would have to be approved by the IAEA Board of Governors. The negotiating committee also decided that what was being negotiated would not replace existing safeguards agreements but rather would be a protocol that supplemented

them.

From the start of the negotiations, it was clear that the major opposition to strong

provisions in the Protocol was coming from such countries as Germany, Japan, Canada, Belgium and Spain. Their opposition led other countries with nuclear programs

to join their efforts to oppose or weaken the Secretariat’s draft proposals. These

States argued that the U.S. would have little credibility in seeking stronger provisions if they were not applicable in the United States. They argued that the U.S.

should follow the precedent established in 1968 when President Johnson agreed that

the U.S. would accept the same safeguards, with a national security exclusion, as

non nuclear weapon states. They were also concerned that their nuclear industries

would be placed at a competitive disadvantage and that they would have difficulties

of persuading their legislative bodies to support an agreement from which the

United States would be exempt. Faced with the prospect of no agreement or one

that was very weak, President Clinton, following interagency consultations, committed the United States to accept all the provisions of whatever Protocol emerged

subject to an exclusion for locations and activities of direct national security significance. Also influencing the decision was an understanding that our ability to persuade others to accept the Protocol would be significantly enhanced if the United

States itself had accepted it. Without this commitment, there would not have been

as strong a Protocol; indeed, there might not have been any protocol at all.

This commitment broke the logjam and the negotiating committee began making

rapid progress. Throughout the negotiation, the delegation sought to strike a balance between the need for the IAEA to have strengthened capability against the

need to protect U.S. security and commercial interests. Once the negotiations concluded, the Model was presented to the Board of Governors in May of 1997 and it

was approved for use as the basis for bilateral negotiations with individual states.

DECLARATIONS AND ACCESS

Under pre-1991 safeguards, non-nuclear weapon states were required to declare

all source or special fissionable materials within their jurisdiction and the IAEA

then sought to prevent diversion of this declared material by applying safeguards

to it. The Protocol focus is broader than nuclear material. It covers materials before

traditional safeguards would apply and it follows materials after safeguards have

been removed. For example, Protocol parties must declare such things as uranium

mines and the treatment of waste products from nuclear reprocessing. Rather than

a focus limited to the actual facility where nuclear material may be stored, utilized

or treated, the Protocol covers components that could be used in such facilities.

Thus, Protocol parties are required to declare such things as factories capable of

manufacturing important nuclear components. In addition, they are required to report imports or exports of such components.

While detailed accountancy and frequent inspections are necessary when dealing

with actual nuclear material or completed nuclear facilities, less is required when

dealing with uranium ore or components of nuclear facilities. The Protocol recogVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00104 Fmt 6601 Sfmt 6621 108-12.TXT SFRELA2 PsN: SFRELA2
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nizes this difference by providing the Agency with a right of complementary access,

rather than traditional safeguards inspections. Complementary access is designed to

be, and has been used as, a routine Agency activity but not one that is used to systematically verify each and every aspect of the declaration. Rather than routinely

visiting every location declared, the Protocol says that the Agency should do so on

a selective basis or when there is an inconsistency in the information available to

it or a question about that information. And, when it makes the visit to that declared location, the Protocol specifies the activities that the Agency may conduct.

To deal with the situation where a proliferator seeks to hide its activities at or

near a declared nuclear complex, as was the case in Iraq, inspectors can seek access

to buildings at such sites with only two hours notice. If the Agency has information

that leads it to conclude something has not been declared that should have been,

it can conduct complementary access at undeclared locations but the activities that

it can perform at that location are circumscribed.

EVALUATION OF THE PROTOCOL

The Protocol will significantly strengthen the Agency’s ability to detect undeclared

nuclear activities and materials. As such, it should deter some countries that might

be tempted to proliferate while increasing the risk that if they proliferate they will

be caught. The declaration required by the Protocol will give the Agency a much

more comprehensive understanding of a Party’s capability to support an undeclared

nuclear program. The Agency has greater rights to ask questions and seek access.

This is the most important contribution that the Protocol makes to IAEA arsenal.

Should the State concerned refuse to answer the questions or to provide the requested access, the Board of Governors has the right to consider that refusal in determining whether to bring the matter to the attention of the UN Security Council.

Moreover, many violations of the Protocol would occur at a much earlier stage in

the nuclear development process than a violation of a comprehensive safeguards

agreement. Thus, the international community could have more time to prevent the

violator from acquiring nuclear weapons.

With respect to the impact of the Protocol in the United States, it must be emphasized that the primary purpose of the Protocol is to determine whether a Party has

undeclared nuclear activities. Everyone knows that the United States is a nuclear

weapon state and will not provide information or access to aspects of its nuclear

weapon program. Moreover, the national security exclusion contained in the Additional Protocol clearly means that the United States will have undeclared nuclear

activities. Since the IAEA already knows that the United States has undeclared nuclear activities, it is reasonable to assume that the IAEA will not spend much, if

any, of its scarce resources conducting complementary access in the United States.

The IAEA will review the information we provide in our declaration primarily

from the perspective of determining whether it is helpful in determining whether

a non nuclear weapon state has an undeclared nuclear program. Of most relevance

to that objective would be the information that is provided regarding exports of nuclear related equipment and cooperative nuclear activities. Nevertheless, prudence

dictates that steps to meet all the Protocol obligations, including implementing legislation, must be taken to deal with the possibility that the Agency subsequently

decides to exercise its right to conduct complementary access.

Regarding risks to U.S. national interests that might result from entry into force

of the Additional Protocol, my view is that the risks presented are modest. The fact

that the IAEA has little incentive to exercise its rights in the U.S. reduces these

risks further. Obviously, all risk cannot be eliminated. But when those modest risks

are balanced against the enhancement of our national security from the application

of the Protocol elsewhere, it is clear the gains far outweigh them.

To ensure that these national security gains are maximized, the U.S. will need

to exercise caution about the precedents it creates. As indicated, our Protocol is

identical to the Model Protocol except for the national security exclusion and the

managed access for national security purposes. No other country has these two exceptions, although Russia does have a type of national security exclusion. Therefore,

what is done under those exceptions does not create a concern about establishing

a precedent that others will seek to emulate. However, we need to exercise great

caution in how we deal with the other provisions of the Protocol since non nuclear

weapon states have identical provisions in their protocols. When implementing these

other provisions, the question needs to be constantly posed whether a country like

Iran, for example, should have a similar right. If it exercises that right, how would

that affect the Agency’s ability to find undeclared nuclear materials and activities.

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CONCLUSION

The Protocol significantly strengthens the ability of the Agency to deter or detect

undeclared nuclear activities and materials. That strengthening is a substantial

benefit to U.S. national security. Implementation of the Protocol in the United

States presents minimal risks to U.S. national interest. Therefore, this Committee

should recommend that the Senate give its advice and consent to ratification of the

Additional Protocol.

RESPONSES TO COMMITTEE QUESTIONS FOR THE RECORD

ADMINISTRATION RESPONSES TO QUESTIONS FOR THE RECORD, SUBMITTED BY THE

SENATE FOREIGN RELATIONS COMMITTEE

Question 1. Beyond the terms of the Subsidiary Arrangement, what specific measures will the United States take to ensure that classified material is not compromised during inspections carried out under the Additional Protocol?

Answer. [DELETED]

Question 2. The Letter of Submittal states that the use of the National Security

Exclusion by any Federal Agency ‘‘will be guided by principles developed for its application.’’ In open form if possible, but in classified form in if necessary, please

specify these principles. Will the principles apply equally to all Federal Agencies

that have equities at stake in the Additional Protocol? For a case in which two or

more agencies disagree on the acceptability of a proposed inspection, please lay out

the process that would occur and to what extent the President could intervene to

resolve the dispute.

Answer. [DELETED]

Question 3. The Article-by-Article analysis submitted with Treaty Doc. 107-7

states that the National Security Exclusion will be exercised when the application

of the Additional Protocol’s provisions would involve ‘‘activities with direct national

security significance to the United States or to locations and information associated

with such activities’’ (Article 1.b). What factors will go into any determination by

the United States that a site or facility has ‘‘direct national security significance?’’

What is the meaning of the term ‘‘direct national security significance’’ as it is used

in the Additional Protocol? Does the Administration interpret this term to mean

sites and activities associated with the U.S. nuclear weapons complex and not those

facilities, sites and activities associated with the U.S. civil nuclear power and research industry?

Answer. [DELETED]

Question 4. Has the U.S. Government conducted site vulnerability assessments for

those locations that the U.S. Government expects to include in its initial declaration

under the Additional Protocol? What is the expected length of time needed to complete those inspections? What is the utility of waiting for completion of all such inspections before the Additional Protocol enters into force?

Answer. No final vulnerability assessments have been completed. In cooperation

with the lead agency for implementing the Additional Protocol at a given location,

agencies with affected national security equities will be responsible for conducting

or facilitating vulnerability assessments at those locations which may have activities

or information of direct national security significance to the United States. As a result of these vulnerability assessments, in cases where the equity agency deems

there is information, activities, and locations of direct national security significance

which cannot be protected, the national security exclusion will be used.

DOD, in cooperation with DOE, conducted 10 vulnerability assessments at DOE

facilities in 1999-2000. These assessments were based on preliminary assumptions

that are no longer valid and will need to be revisited. This process is underway. In

addition to initial assessments and procedure revisions to support entry into force,

DOE sites will integrate Additional Protocol requirements into its periodic security

assessment, planning, and procedure updates. Furthermore, a subgroup of the DOD

Nuclear Safeguards Implementation Working Group will identify other sites that require vulnerability assessments. The completion date depends on the number of locations identified for vulnerability assessments and available resources. All necessary site vulnerability assessments will be completed by entry-into-force of the

U.S. Additional Protocol.

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Question 5. The Committee has been informed, through briefings, that the IAEA,

to date, has a perfect record with regard to the handling of information gained in

the United States during inspections and from U.S. declarations. Please provide the

Committee with any past statements, reports, or other formal communications from

the U.S. intelligence community regarding the IAEA’s record of protection of sensitive information obtained through U.S. declarations and inspections. How has the

IAEA strengthened its security regime to meet the requirements of Article 15 in the

Additional Protocol? Does the IAEA need to take any further measures in this regard?

Answer. The executive branch is unaware of any statements, reports, or other formal communications from the U.S. intelligence community regarding the IAEA’s record of protection of sensitive information obtained through U.S. declarations and

inspections.

During the negotiation of the Model Additional Protocol, States pushed for a more

detailed system for protecting safeguards confidential information, in light of the

broader declaration requirements in the Protocol. Article 15 of the Additional Protocol requires the Agency to submit its regime for the protection of confidential information for approval and periodic review by the Board of Governors, to implement

measures for the handling of confidential information, to impose conditions of staff

employment relating to the protection of confidential information, and to have in

place procedures for breaches or alleged breaches of confidentiality. Following the

Board’s approval of the Model Protocol, the IAEA received Board approval in December 1997 for an updated regime for protection of confidential information. The

United States joined the Board in approving the revised regime.

The new regime is substantially more detailed than what existed previously. For

example, the new regime includes penalties for IAEA staff found to be in breach of

their obligations, including potential exposure to civil and criminal penalties and

waiver by the Agency of legal immunities. The IAEA has continued to make regular

reports to the Board on its progress in implementing security improvements in such

areas.

The United States has supported and participated in IAEA’s efforts in this area.

The United States, through its voluntary contribution to the IAEA, has provided

technical assistance to the IAEA in improving information security in the Department of Safeguards, including in its safeguards information systems. The IAEA has

made substantial and steady progress in implementing the recommendations made.

Question 6. Is there any need for the IAEA to amend or change its contractual

arrangements with its inspectors and its staff in Vienna to reflect the additional

types of information that could be obtained in the United States as a result of inspections under the Additional Protocol?

Answer. The IAEA’s review of security-related issues is on-going. Article 15 of the

Additional Protocol requires the Agency to submit its regime for the protection of

confidential information for approval and periodic review by the Board of Governors,

to implement measures for the handling of confidential information, to impose conditions of staff employment relating to the protection of confidential information,

and to have in place procedures for breaches or alleged breaches of confidentiality.

Following the Board’s approval of the Model Protocol, the IAEA received Board approval in December 1997 for an updated regime for protection of confidential information. The United States joined the Board in approving the revised regime.

The new regime is substantially more detailed than what existed previously. For

example, the new regime includes penalties for IAEA staff found to be in breach of

their obligations, including potential exposure to civil and criminal penalties and

waiver by the Agency of legal immunities. The IAEA has continued to make regular

reports to the Board on its progress in implementing security improvements in such

areas.

Question 7. What is the likely impact of Article 14.b of the Additional Protocol?

For example, will the United States require that certain IAEA communications be

encrypted?

Answer. Under Article 14, the United States is required to permit and protect

unimpeded communications by the Agency for official purposes between Agency inspectors in the United States and Agency Headquarters and/or Regional Offices. The

Agency has the right, in consultation with the United States, to make use of internationally established systems of direct communications, including satellite systems

and other forms of telecommunication. In so doing, however, the Agency must protect from disclosure any information that the United States regards as being of particular sensitivity. If such information is provided to the IAEA, we will ensure that

they will take every necessary precaution to prevent its disclosure, including using

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encrypted communications where appropriate. Protection of such information is a

concern to many States under the safeguards system, and the IAEA has been highly

responsive to States’ concerns.

Question 8. What impact did the decision by the United States and other nuclear

weapon states (NWS) to sign an Additional Protocols have on the willingness of nonnuclear weapon states (NNWS) to agree to the text of the Additional Protocol that

they are urged to adopt? What is the likely impact of U.S. ratification of its Additional Protocol on those states that have not yet signed or ratified an Additional

Protocol?

Answer. During the negotiations of the Model Protocol, many non-nuclear-weapon

states parties pushed to water down the provisions of the document, arguing that

the intrusiveness of the measures and the costs to industry would be too great, and

would place them at a commercial disadvantage relative to the United States. To

defuse these arguments, the United States pledged to accept the Protocol in its entirety, with the addition of a National Security Exclusion allowing the United States

to exclude from the Protocol activities of direct national security significance to the

United States. This offer was critical to gaining the acceptance of the Protocol by

countries such as Germany and Japan, and was relied on by their governments in

persuading their legislatures to approve their Protocols. Japan’s Additional Protocol

is already in force. Moreover, Japan’s implementation of the Protocol has been instrumental in getting a large number of other states to sign protocols. Germany and

nearly all other states of the European Union have completed their ratification processes; entry into force will take place once all EU states have completed their ratification processes.

The U.S. offer on the Protocol was an extension of the original U.S. pledge to accept the same safeguards on all of its civil nuclear facilities that non-nuclear-weapon states parties are subject to under the NPT. This pledge, first made by President

Johnson and sustained by every administration since, helped the United States

demonstrate that adherence to the NPT did not place other countries at a commercial disadvantage, either because of increased costs associated with safeguards or

because of the risk of the compromise of proprietary information, and was critical

to gaining widespread adherence to a strong NPT.

U.S. ratification will put the U.S. in a better position to promote adherence to Additional Protocols by others. Waiting for still more states to ratify their Additional

Protocols would not serve the nonproliferation interests of the United States.

Question 9. Please outline past, present, and planned efforts relating to U.S. diplomatic outreach in pressing for universal adoption of Additional Protocols by NNWS

parties to the Treaty on the Non-proliferation of Nuclear Weapons. How will Senate

ratification of the Additional Protocol benefit these efforts?

Answer. Both when the United States signed its Additional Protocol in 1998, and

when President Bush transmitted the Additional Protocol to the Senate in May

2002, U.S. Embassies around the world were asked to press the host countries to

adopt the Additional Protocol. We have also raised the issue at appropriate opportunities, such as Assistant Secretary John Wolf’s trip to Argentina and Brazil in May

2003. Since September 2000, when the IAEA adopted an Action Plan to promote adherence to safeguards agreements and Additional Protocols, we have focused on supporting the IAEA’s outreach efforts. We participated in IAEA regional outreach seminars in Japan, Peru, Kazakhstan, South Africa, Malaysia, Romania and Uzbekistan

and have provided voluntary contributions to support those and other IAEA efforts.

The United States has stated its strong support for universal adherence to the

Additional Protocol. Achieving this goal would be greatly facilitated by ratification

of the U.S. Additional Protocol, as signed. Should the Senate give its advice and consent to ratification for the U.S. Additional Protocol, we would initiate another outreach in diplomatic channels to press states to sign and ratify Protocols.

Question 10. How will universal adoption of Additional Protocols by NNWS enhance the capability of the IAEA to detect clandestine nuclear weapons programs

in NNWS party to the Treaty on the Non-proliferation of Nuclear Weapons?

Answer. Universal adoption of the Model Additional Protocol will give IAEA inspectors greater information and access to nuclear and related facilities worldwide.

By accepting a new legally-binding Protocol, States will assume new obligations that

will require making all their nuclear activities more transparent. It is critical to our

national security to minimize the number of nations with or pursuing nuclear weapons, as well as ensure that nuclear devices or material do not wind up in the hands

of non-state actors, such as terrorist groups. Promoting the widest possible application of the strongest possible system of IAEA safeguards helps us accomplish this

goal.

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Question 11. Please explain the background and rationale for the April 30, 2002

letter from Ambassador Kenneth Brill to IAEA Director General Mohamed

ElBaradei. Has the IAEA formally or informally responded to the letter? Is there

any reason to believe the IAEA does not accept any of the stipulations laid out by

the United States in the letter?

Answer. The letter was sent as a U.S. initiative and not as a response to any request by an IAEA official. We wanted to inform the IAEA explicitly and directly

about the U.S. approach toward the Additional Protocol and the importance of the

National Security Exclusion, rather than just indirectly through the documents

transmitting the Protocol to the Senate. No official response, either written or oral,

to the April 30, 2002, letter from Ambassador Kenneth Brill to IAEA Director General Mohamed ElBaradei was requested or received. There is no evidence of any

negative reaction.

Question 12. Please explain the rationale for the following statement in Ambassador Brill’s letter:

‘‘Certain activities that occur at locations that are part of the United States

civil nuclear program may also be excluded from the declaration and access provisions of the Additional Protocol in accordance with the terms of the NSE.’’

Answer. [DELETED]

Question 13. Please explain the practical consequences expected to flow from this

statement in Ambassador Brill’s letter: ‘‘The United States expects the IAEA to seek access to the United States for

the purpose of increasing the effectiveness or efficiency of IAEA safeguards at

facilities in non-nuclear-weapon states, or enhancing the capability of the IAEA

to detect undeclared nuclear material and activities in Non-nuclear-weapon

state[s].’’ Is there any reason to believe the IAEA disagrees with the substance and/

or import of this statement?

Answer. The primary purpose of the Additional Protocol in a non-nuclear-weapon

state is to enable the IAEA to provide some assurance about the absence of

undeclared nuclear activities in that state. This purpose does not apply to nuclearweapon states, which are understood to have extensive nuclear activities not required to be declared to the IAEA.

Ambassador Brill’s statement conveys our view that, as a practical matter, the

Agency’s interest in the U.S. declarations would be focused on clarifying relationships we may have with non-nuclear weapons states. As such, most requests from

the IAEA would likely be requests for further information rather than complementary access visits.

The Administration did not ask for or receive a reply, but has no reason to believe

the IAEA disagrees with the substance and/or import of the above-referenced statement from Ambassador Brill’s letter.

Question 14. Ambassador Brill’s letter states that, pursuant to Article 1.b of the

Additional Protocol, ‘‘the United States will supply information pursuant to Article

2 of the Additional Protocol only on those unclassified activities to which it has determined that it will be able to provide the IAEA with sufficient access, including

with managed access, to enable it to verify the accuracy of the declared information.’’ Why did the United States not choose to supply information pursuant to Article 2 on all unclassified activities, even if the United States could not offer sufficient

access to the IAEA necessary to verify the accuracy of declared information on some

activities?

Answer. It is not the purpose of Protocol implementation in nuclear weapons

states to permit the IAEA to verify the completeness of the state’s declaration. The

primary purpose of the U.S. Protocol is to demonstrate that we are willing to accept

the same safeguards on civil nuclear activities as non-nuclear weapon states. Providing declarations on locations for which access is impossible would result in having to deny the IAEA access should they request access, and would be detrimental

to U.S. policy goals for encouraging implementation of Additional Protocols and

strengthened safeguards and therefore not serve the purpose of the Protocol.

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

110

sampling? In open form if possible, but in classified form in 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. [DELETED]

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. 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 therefor 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. [DELETED]

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 wide-area 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. [DELETED]

Question 19. Ambassador Brill’s letter also states: ‘‘The United States expects the

IAEA to seek access to the United States for the purpose of increasing the effectiveness or efficiency of IAEA safeguards at facilities in NNWS, or enhancing the capability of the IAEA to detect undeclared nuclear material and activities in NNWS.’’ Would it not be reasonable to expect that the IAEA would want to practice the use

of wide-area environmental sampling in a location where a positive result might be

obtained? To what extent, if any, do other NWS permit the use of wide-area environmental sampling under their Additional Protocols?

Answer. The United States has informed the Agency that, if arrangements for

wide-area environmental sampling were approved, the United States does not foresee circumstances in which the Agency would need to propose to conduct it in the

United States. If wide-area sampling is eventually approved by the Board of Governors, its use in the United States requires consultations, and therefore agreement,

between the IAEA and the United States.

With regard to the other nuclear weapons states, the UK accepted a limited

version of Article 9 that states it may accept wide area sampling if it were focused

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on detecting covert activities in NNWS. No other NWS have provisions for wide area

sampling.

Question 20. Please clarify the meaning of the clause in the Preamble to the Additional Protocol calling for the frequency and intensity of activities described in the

Protocol to be kept to a minimum.

Answer. The full quote from the preamble reads ‘‘the frequency and intensity of

activities described in the Protocol shall be kept to the minimum consistent with

the objective of strengthening the effectiveness and improving the efficiency of Agency safeguards.’’ Strengthening safeguards is the primary objective of the Model Additional Protocol. Consistent with that objective, however, the frequency and intensity of implementation of protocol measures is to be minimized. The declarations of

the Additional Protocol are not to be verified mechanistically or systematically because the Protocol covers activities and materials that could contribute to production

of nuclear material, whereas traditional safeguards cover actual nuclear material.

As a practical matter, mechanistic and systematic verification of the Additional Protocol would require a high expenditure of IAEA effort on routine verification and

would prevent the IAEA from focusing its efforts on significant questions and inconsistencies.

Question 21. Have any subsidiary agreements been signed, pursuant to Article 13,

other than the one submitted to the Senate with the Additional Protocol as a part

the package accompanying Treaty Document 107-7? Is the Administration awaiting

the outcome of Senate consideration of the Additional Protocol to begin negotiations

on any further subsidiary arrangements? If not, is the Administration now negotiating any such agreements, and are those expected to be completed in the coming

months? If so, please summarize them. What factors will determine whether a subsidiary arrangement is submitted to the Senate for its advice and consent to ratification?

Answer. No other subsidiary arrangements have been signed or negotiated, nor

is the Administration negotiating any such agreement. The Administration is exploring the development of General Part Subsidiary Arrangements, which could include technical matters such as describing reporting formats, to facilitate implementation of the Additional Protocol. Subsidiary arrangements under the Additional

Protocol, as with those that are periodically negotiated under the existing Safeguards Agreement, are of a detailed technical character and do not change the

rights and obligations of the Parties. As such, Subsidiary Arrangements have not

been submitted to the Senate for its approval. The normal factors for determining

whether an agreement is subject to Senate advice and consent would be applied to

future subsidiary arrangements.

Question 22. What is the record of IAEA inspections in the United States under

the existing Safeguards Protocol? How many inspections does the IAEA normally

conduct in the United States, other than those requested by the United States? Is

the Additional Protocol expected to result in many more inspections of U.S. locations?

Answer. During 2003, each of the four facilities selected for safeguards (out of approximately 250 eligible facilities) were inspected once every month by the IAEA.

In addition, one of the facilities that was previously inspected was decommissioned

and deselected for safeguards in 2003. All of these inspections were conducted at

the request of the United States in order to safeguard fissile material declared excess to our defense needs. In past years at the invitation of the United States, IAEA

safeguards inspectors have conducted inspections in the United States as part of

safeguards experiments. The IAEA has conducted no other inspections in the United

States since 1993.

There were 86 complementary accesses world-wide by the IAEA during 2002 (the

last year that we have full information). The IAEA is not expected to waste scarce

resources in seeking complementary accesses in a nuclear-weapon state such as the

United States.

Note: We understand the term ‘‘existing Safeguards Protocol’’ to mean the U.S.-

IAEA Safeguards Agreement, which entered into force in 1980, not the initial Protocol to the U.S.-IAEA Safeguards Agreement, which was signed in 1977, and which

does not involve inspections.

Question 23. Please explain the procedures within the executive branch for reviewing proposed IAEA inspectors to carry out the Additional Protocol and deciding

whether or not to accept them, pursuant to Article 11.

Answer. [DELETED]

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Question 24. For inspections in the United States under the Additional Protocol,

will there be defined points of entry (POEs) at all sites where information of direct

national security significance exists? To what extent will the United States inspect

equipment to be used under an Additional Protocol inspection in the United States?

Answer. [DELETED]

Question 25. Will all counterintelligence and security training for declared locations with direct national security significance under the Additional Protocol be

completed within 180 days after the deposit of the United States instrument of ratification? Will all such planning and training be completed for possible short-notice

inspections at such locations, as well?

Answer. The Administration will not deposit the United States’ instrument of

ratification until such time as it determines we will be fully prepared to meet required declaration timelines and ensure readiness for complementary access. We

will ensure the requisite counterintelligence and security training will be done, including that associated with inspections under the Additional Protocol.

Question 26. As of today, has the Administration completed, in at least draft form,

all the necessary regulation and implementation legislation? When does the Administration anticipate that all such regulation will enter into force? What regulatory

changes, if any, will be required? Which of these regulatory changes, if any, will not

require implementing legislation?

Answer. The only implementing legislation that should be required to implement

the treaty was submitted by OMB to the Congress in November. 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. The implementing legislation also provides

the legal basis for the DOC to provide the IAEA with access to locations.

Question 27. Does the IAEA accept the view of the United States that it has the

right subsequently to withdraw acceptance of inspectors as needed, even if it raised

no objections when the inspectors were initially designated for the United States?

Is there any precedent for the rejection of inspectors after their designation and previous acceptance under any other inspection regime currently in force in the United

States?

Answer. The answer for both questions is yes. Non-nuclear weapon state parties

to the standard IAEA safeguards agreement pursuant to the Nuclear Non-Proliferation Treaty have the same right.

The United States reviews all inspectors proposed by the IAEA for designation as

inspectors. We may reject the designation of individual inspectors to the United

States for any reason or for no reason at all. Our criteria for these decisions change

from time to time in accordance with policy considerations. At present, nationals of

states identified by the United States as state sponsors of terrorism are automatically rejected. We also look closely at inspectors from other states of proliferation

concern.

Each year a list of current inspectors designated to the U.S. is received by the

U.S. and the list is reviewed. If an inspector of concern is identified on the list, the

IAEA is requested to remove the inspector from designation. Within the last decade,

the U.S. has rejected designations of approximately 10 inspectors, some of whom

had been previously accepted. In any given year, the U.S. might reject 1-5% of the

inspectors designated. The Additional Protocol will not change the basic format of

the current review procedures.

Question 28. Please provide the precise number of U.S. sites currently subject to

possible IAEA inspection under the Voluntary Offer, the types of sites which will

be declared under the Additional Protocol, and an estimate of the number of locations of each type. If a list of such additional sites that will have to be prepared

for possible inspections has been prepared, please provide it to the committee.

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1One respondent does not foresee significant burden on industry from ratification and implementation of the Additional Protocol. The other respondent noted its strong support for the objectives of the Additional Protocol, but withheld conclusions on the impact of the Additional Protocol pending enactment of implementing legislation, promulgation of regulations and more information on procedures for the protection of proprietary information.

Answer. [DELETED]

Question 29. Please describe the U.S. Government’s outreach to U.S. industry in

negotiating the Additional Protocol, in drafting proposed implementing legislation,

and/or to prepare U.S. industry for the possibility of new or expanded IAEA inspections. Have any trial inspections been conducted? Has any training been provided?

What additional outreach activities are planned if the Additional Protocol is ratified?

What outreach has occurred, or is planned, for companies that are not members of the Nuclear Energy Institute (NEI)?

Answer. Since 1997, the executive branch has held several meetings with the commercial industry through the Nuclear Energy Institute (NEI). These meetings have

been with NEI and in meetings of commercial entities organized by NEI. Training

and trial inspection activities have been performed at DOE facilities. In 2002, the

Department of Commerce published a Federal Register notice seeking input from industry with respect to the Additional Protocol. This notice drew only two responses.1

Training and trial inspections have not been conducted at commercial locations

because NRC and DOC do not have the authority to implement these activities until

the Additional Protocol is ratified. Should the implementing legislation be enacted,

rule changes and guidance documents would then be prepared for publication and

discussion with the industry and for use in training.

Question 30. What additional costs will U.S. industry be expected to bear if the

Additional Protocol is ratified? To what extent will U.S. firms be able to recoup their

costs (e.g., pursuant to Article 14 of the underlying Safeguards Agreement)?

Answer. The U.S. industry is expected to bear the costs of submitting declarations

to the Nuclear Regulatory Commission or the Department of Commerce and for escorting/accompanying the IAEA inspectors and U.S. Government support team during access to the location. The access may include providing requested safeguardsrelevant records for the review of the inspectors. There is no provision for routine

access under the Additional Protocol, and implementation burdens in non-nuclearweapon states have been minimal. We expect the Agency will seek very few complementary accesses each year in the United States.

The provisions of Article 14 of the Safeguards Agreement remain in force. If the

United States or persons under its jurisdiction incur extraordinary expenses as a

result of a specific request by the IAEA, the IAEA is obligated to reimburse those

expenses, provided it has agreed in advance to do so.

Question 31. What additional costs will the U.S. Government bear in implementing the Additional Protocol? Will such costs be absorbed within existing budgets, or will additional funds be required?

Answer. The U.S. Government Agencies will incur costs related to:

• preparing regulations and guidance • performing training for implementing the Additional Protocol; • collecting, evaluating, storing, and submitting Additional Protocol information; • performing vulnerability assessments; • preparing security plans; • implementing the escorting procedures associated with IAEA access to a location; and • supporting IAEA for implementation of the Additional Protocol in other countries.

We are still assessing the full start-up costs for implementing the Additional Protocol. We assume that once those start-up costs are finalized, approximately ten percent of that figure will be required for recurring costs in subsequent years. The Administration will allocate resources from within funds appropriated in FY2004 and

the Administration’s request in FY2005 to meet needs in those years. The IAEA member states decided in 2003 on an increase of $19.4 million in the

safeguards budget between 2004 and 2007. This increase would cover a variety of

needs, including safeguarding large new facilities and activities as well as implementing the Additional Protocol in an increasing number of countries. We estimated

that protocol implementation accounted for roughly 10% of the needed increase in

resources. The U.S. share of the projected increase in IAEA costs of protocol implementation is therefore roughly $0.5 million/year. When the Model Additional ProVerDate 11-MAY-2000 08:22 Mar 30, 2004 Jkt 000000 PO 00000 Frm 00113 Fmt 6601 Sfmt 6621 108-12.TXT SFRELA2 PsN: SFRELA2
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tocol was adopted, it was recognized that there would be some near-term cost increases, but the long-term goal was cost neutrality. Cost increases are expected to

be offset over time by improvements in efficiency.

The United States also provides significant extrabudgetary support to IAEA safeguards, much of it for implementation of the Additional Protocol and other safeguards strengthening measures. However, there is no clear division between funding

for the protocol and other safeguards support activities.

Question 32. How will the Additional Protocol affect the implementation of IAEA

inspections in the United States? Will there be any changes to the use of escorts

during such inspections?

Answer. IAEA inspections under our Safeguards Agreement will continue as they

have in the past. At DOE and NRC facilities, IAEA inspectors are always escorted.

Under the Additional Protocol our procedures will differ somewhat; however, these

differences have already been discussed with IAEA inspectors who found no issue

with them.

Question 33. What are the terms and procedures under the Additional Protocols

with the other four NWS regarding the manner in which inspectors are escorted

during the conduct of their inspections in those states? While in other NWS, are

inspectors escorted while they are at the site, facility or location, or are they escorted during their entire stay, and are they under 24-hour surveillance?

Answer. Neither non-nuclear weapon states nor nuclear weapon states require 24-

hour escorts for IAEA inspectors, either in practice or in their Additional Protocols.

IAEA inspectors may be met at the airport for courtesy reasons or if personal safety

is in question, e.g., Pakistan and Algeria, but otherwise they are on their own everywhere. No country requires escorts on a 24-hour basis. Usually the inspectors meet

the government representatives at the gate to the facility/location they will be inspecting. In some countries the presence of government officials might make moving

about easier, but it is not required by any state. Inspectors may be under surveillance, particularly in certain countries.

Article 4(f) gives parties to the Additional Protocol the right to accompany IAEA

inspectors during complementary access, provided that the inspectors are not delayed or impeded in the exercise of their functions. This provision was accepted by

the United States and France. The United Kingdom’s Additional Protocol gives it

(or the EURATOM) the right to escort IAEA inspectors during access to locations

under Article 5(a) or for access involving nuclear material, provided that the inspectors are not delayed or impeded in the exercise of their functions. The Additional

Protocols of Russia and China do not provide for complementary access.

Question 34. Article 16 of the Additional Protocol permits the IAEA Board of Governors to amend either of the Annexes. Can such an amendment be adopted without

the approval of the United States? Has the Board exercised such powers regarding

any previous U.S.-IAEA agreement? If so, has it ever adopted an amendment over

U.S. objections?

Answer. Article 16.b of the Additional Protocol allows Annexes I and II to be

amended by a majority vote of the International Atomic Energy Agency (IAEA)

Board of Governors. It is possible that the Board could adopt amendments without

U.S. consent or of a type that goes beyond that which the Senate can authorize

through its present advice and consent to the Protocol. These possibilities raise concerns under Article II, section 2, of the Constitution. The Administration has proposed an understanding which addresses these concerns by making clear that

amendments to the Protocol will take effect for the United States only in accordance

with its constitutional requirements.

In accordance with Article 23(b) of the Safeguards Agreement, the IAEA does not

have any authority to amend the U.S.-IAEA Safeguards Agreement absent U.S.

agreement. Two provisions of the Safeguards Agreement call on the sides to implement available technical improvements, but the implementation of those provisions

does not constitute amendments. Specifically, Article 6 gives the IAEA the authority

to adopt the best available technology to implement safeguards, and Article 53 obligates the United States to adopt new measurement techniques and report new data,

generally without even a Board of Governors decision. These provisions have never

been implemented over U.S. objections.

Question 35. What will the implementing procedures be for invoking and arranging managed access pursuant to Article 7 of the Additional Protocol? How will those

procedures differ from current procedures for implementing limitations on IAEA access (e.g., pursuant to Article 74 of the Safeguards Agreement)?

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Answer. The provisions of Article 74 of the Safeguards Agreement do not affect

the provisions of the Additional Protocol, with one exception. Article 74(d) of the

Safeguards Agreement allows the United States to impose ‘‘extended limitations on

access by the Agency’’ in ‘‘unusual circumstances,’’ but requires the United States

and the Agency to make arrangements to allow the Agency to discharge its safeguards responsibilities, and requires the IAEA to report all such arrangements to

the Board of Governors. This provision is meant to allow for legitimate interruptions

in access at nuclear facilities, such as safety-related conditions.

The United States has the unilateral right to invoke managed access in accordance with Article 7. The U.S. Government will provide information to the reporting

locations on Article 7 managed access. When required, managed access measures

and procedures will be developed in advance of IAEA arrival at the location. On

IAEA arrival, steps will be taken, if necessary, to permit the IAEA to accomplish

their safeguards objectives while maintaining protection of information and compliance with health, safety, and security regulations.

When the Additional Protocol was concluded, a Subsidiary Arrangement was

agreed to between the United States and the Agency specifying, for the purposes

of the Additional Protocol with the United States, as a nuclear-weapon state, measures that could be taken to manage access. These may include, inter alia: (a) removal of sensitive papers from office spaces; (b) shrouding of sensitive displays,

stores, and equipment; (c) shrouding of sensitive pieces of equipment, such as computers or electronic systems; (d) logging off of computer systems and turning off

data indicating devices; (e) restriction of safeguards instrumentation or environmental sampling to the purpose of the access; and (f) in exceptional cases, giving

only individual inspectors access to certain parts of the inspection location.

The managed access measures and procedures implemented at the four currently

inspected facilities are not substantially different than the measures and procedures

envisioned for use under the Additional Protocol.

Where there is a concern about protecting information or activities of direct national security significance to the United States, of course, the United States could

invoke Article 1.c to require any necessary access restrictions or Article 1.b to exclude the location entirely from access.

Question 36. Article 4.a of the Additional Protocol states: ‘‘The Agency shall not

mechanistically or systematically seek to verify the information referred to in Article

2.’’ Equivalent language is contained in the (model) Additional Protocol that NNWS

are urged to adopt. What was the U.S. position on this issue during the negotiation

of the original Model Protocol?

Answer. The United States agreed with this formulation (originally put forth by

the German Delegation). We believed that it was important to distinguish clearly

between activities which would be carried out pursuant to access under the Protocol

and those already being carried out under comprehensive safeguards agreements

based on INFCIRC/153. Indeed, under the Protocol, States’ declarations would relate, in large part, to activities rather than to the nuclear material present at specific locations at specific times, so that systematic and mechanistic verification

would make little sense.

‘‘Not mechanistically or systematically’’ is a necessary requirement for cost-effective implementation of the Additional Protocol. Mechanistic and systematic implementation would require verification levels based on the amount of information declared by the State. Thus, those States with the largest programs would be subject

to the largest verification effort. This would force the IAEA to expend most of the

Additional Protocol effort in Canada, Japan and the European Community. The

countries with the significant questions and inconsistencies with regards to their

nuclear programs are not necessarily those states with large established civil nuclear programs. The mechanistic and systematic exclusion permits the IAEA to focus

their verification efforts on states of concern.

Question 37. Article 4.a(i) of the Additional Protocol requires that the IAEA be

given certain access ‘‘on a selective basis.’’ What is the meaning and intended impact of that phrase? Does it pertain to how the locations are chosen, or rather to

the extent of access at a location?

Answer. The phrase ‘‘on a selective basis’’ is a term of art under the Protocol that

refers to the manner in which IAEA chooses access under the Protocol.

The phrase ‘‘on a selective basis’’ means that the IAEA will not mechanistically

and systematically seek to verify all aspects of declarations made pursuant to the

Additional Protocol at all locations where nuclear materials exist. However, the

IAEA has the right to access to such locations based on technical considerations or

specific concerns, without a requirement for prior consultation with the State. Since

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the United States, as a nuclear weapon state, has undeclared nuclear material and

activities, access is not expected to be of much interest under the U.S. Additional

Protocol.

Question 38. How does the IAEA choose locations for inspections in the United

States under the Voluntary Offer? Are there any formal or informal understandings

with the IAEA regarding inspections under the Additional Protocol?

Answer. Pursuant to the U.S.-IAEA Safeguards Agreement, the United States has

made eligible for IAEA safeguards about 250 nuclear facilities. These include a large

number of power reactors and research reactors, commercial fuel fabrication plants,

and uranium enrichment plants, as well as other types of facilities. In the case of

a non-nuclear-weapon state, the IAEA would have an obligation to inspect all of

these facilities, as well as many other locations where nuclear material is used. In

the United States, the IAEA has the right, but not the obligation, to select facilities

for inspection.

The initial facilities selected by the IAEA under the Safeguards Agreement were

chosen to gain experience in inspecting the facility type and to place equal burden

on facilities involved in international commerce. All six of the U.S. LEU fuel fabrication plants and the Gas Centrifuge Enrichment Plant were selected to place the

same cost burden and risk to technology on these facilities as was being accepted

by similar facilities in other countries.

It is of interest to note that the IAEA, because of increasing budgetary pressures,

discontinued inspections in the United States in 1992. The IAEA resumed inspections in 1994 at the request of the U.S. Government, implementing safeguards on

several tons of weapons-usable nuclear material declared excess to U.S. national security stockpiles. The IAEA undertook this effort on the condition that the United

States reimburse the IAEA.

With respect to the Additional Protocol, the formal understanding with the IAEA

is that the U.S. will permit the application of IAEA safeguards to all locations except those of direct national security significance. There are no formal understandings with the IAEA, however, regarding the frequency with which they would

seek complementary access to locations in the United States.

Finally, in a letter dated January 23, 2004, Ambassador Kenneth Brill sought

IAEA confirmation that complementary access will be conducted in a manner that

is consistent with the Fourth Amendment. Although the IAEA has not yet replied

to this letter, we expect a favorable response, and will ratify the treaty only after

we receive such confirmation.

Question 39. Article 8 of the Additional Protocol allows the United States to offer

additional sites for IAEA inspection or to request particular IAEA ‘‘verification activities.’’ The IAEA ‘‘shall, without delay, make every reasonable effort to act upon

such a request.’’ Please describe any likely or planned use of Article 8. If similar

actions have occurred under the current Safeguards Agreement, please summarize

U.S.-IAEA experience in this regard.

Answer. This provision merely provides an option, not an obligation. To date, the

United States has no plans to offer additional locations for IAEA verification under

the Additional Protocol. This type of access might prove helpful to a country that

becomes the target of false allegations, allowing it to request IAEA verification to

clear up specific charges. It is difficult, however, to envisage how such additional

transparency would be relevant in the United States, as an NPT nuclear weapons

state.

Question 40. Does the executive branch have any objection to sharing with the

Congress any written reports issued by the IAEA pursuant to Article 10?

Answer. No.

Question 41. Why is there an arbitrary time period for the completion of a Subsidiary Arrangement, limited to 90 days from the date upon which either the United

States or the Agency indicates the need for a Subsidiary Arrangement? What will

happen to a proposed Subsidiary Accord if agreement cannot be reached by the 90th

day?

Answer. As a practical matter, since some declarations are required in a shorter

time span than the initial declaration on locations, e.g., Article 2(a)(ix)(b), access

could be sought soon after entry into force of the Protocol. The ninety day duration

for completing a Subsidiary Arrangement provides incentive to both the IAEA and

the State to conclude the agreement in a timely manner.

Question 42. In what manner are the Additional Protocols negotiated by the IAEA

with Russia and China different from the Additional Protocol between the IAEA and

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the United States.? If they are more restrictive of IAEA rights and privileges, why

did the United States not seek similar safeguards?

Answer. Substantial differences exist among the Additional Protocols of the nuclear weapon states. China’s and Russia’s Additional Protocols are quite restrictive.

Both eliminated much of the substance of the Model Protocol, sharply limiting the

scope of the declarations they are required to make and eliminating all associated

IAEA access rights. Despite the limited scope of its Protocol, Russia also included

a national security exclusion.

China and Russia, however, did not play a leadership role in negotiations on the

Additional Protocol. The United States played a significant role during the negotiation and insisted that the Protocol include robust requirements for expanded declarations and access by states. Our willingness to accept, on our civil nuclear program, all provisions of the Model Additional Protocol was decisive in achieving

agreement on the Model and acceptance by key states.

The U.S. Additional Protocol, unlike the other P-5 Protocols, includes the entire

text of the Model Additional Protocol without alteration. However, because the U.S.

Additional Protocol contains a national security exclusion as well as providing the

right to use managed access, it provides sufficient protection against access to or

disclosure of information or activities of direct national security significance.

Question 43. Please outline the differences between the Additional Protocol signed

between the United States and the IAEA and those Additional Protocols signed between the IAEA and the other four NWS.

Answer. In contrast to the United States, the UK and France decided to focus

their Protocols narrowly on areas in which its implementation could assist the IAEA

in detecting undeclared nuclear activities in NNWS. The UK and France placed

some limits on the categories of locations subject to declaration and access. In some

cases, the purposes specified for access rights are modified, but the access rights remain the same, including the right of the IAEA to specify locations for access under

Article 5.c. The UK and France did not include a national security exclusion in their

Protocols. The Chinese and Russian Protocols depart from the model much more

thoroughly, in essence limiting the state’s obligations to declarations related to cooperation with non-nuclear-weapon states (NNWS), eliminating IAEA access rights

entirely. For good measure, Russia’s Protocol also includes a national security exclusion.

The result of the UK’s and France’s adaptations are that almost all of the measures in the Model Protocol are reflected in the UK Protocol, but are generally altered to apply only in instances where activities have links with NNWS. For example, in the U.S. Protocol (following the Model), Article 2.a(iv) requires that we provide to the IAEA, ‘‘[a] description of the scale of operations for each location engaged

in’’ various nuclear-related manufacturing operations. The UK Protocol requires the

same information for such locations ‘‘where these involve links with fuel cycle operations in a NNWS.’’ In the UK’s view, information about its manufacturing activities

with links to NNWS could provide the IAEA with useful information about NNWS

activities. Some changes, however, broaden the declaration requirements in other

ways, e.g., in the UK case, where nuclear-related R&D is declarable under Article

2.a.i whether or not it involves nuclear material.

The U.S. Protocol, because it contains a national security exclusion, provides more

robust protection against disclosure of or access to information or activities of direct

national security significance than do the UK and French Protocols. (The Chinese

and Russian Protocols provide full protection by entirely eliminating IAEA access.)

The U.K. and French Protocols, in contrast, do not contain an NSE or the ability

to use managed access to protect information of national security significance.

The U.S., UK, and French Protocols all allow the IAEA to seek access to any

undeclared location under Article 5.c (5.b in the French Protocol). This right is not

absolute under any of the Protocols, but the limitations in the Protocols differ. Specifically, each protocol provides for access to ‘‘[a]ny location specified by the

Agency . . . to carry out location-specific environmental sampling, provided that

if the [UK/US] is unable to provide such access, the [UK/US] shall make every reasonable effort to satisfy Agency requirements, without delay, at adjacent locations

or through other means.’’ In the United States, the purpose of such access is to resolve a question or inconsistency related to U.S. declarations, and access is normally

allowed only following an effort to resolve the question or inconsistency through consultations. In the UK, access is allowed where it ‘‘will contribute to increasing the

Agency’s capability to detect undeclared nuclear material and activities in a

NNWS,’’ but with no requirement for advance consultations—a provision the U.S.

would not choose to do without. In France, access is allowed to any location specified

by the agency for sampling ‘‘with the objective of enhancing the Agency’s ability to

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detect undeclared nuclear activities in a NNWS. As in the United States, access is

allowed to resolve a question or inconsistency related to U.S. declarations, and access is normally allowed only following an effort to resolve the question or inconsistency through consultations.

Question 44. The provisions of the Additional Protocols agreed upon by the Russian Federation and the People’s Republic of China with the IAEA require the two

NWS to provide information to the IAEA only on nuclear exports and imports to

and from NNWS, nuclear material located on the territory of other States, and

international cooperation with NNWS in the field of the nuclear fuel cycle which has

nuclear non-proliferation significance. Furthermore, these Additional Protocols do

not provide any rights for the IAEA to implement complementary access or widearea environmental sampling.

Answer. The Administration agrees with the above statement.

Question 45. Why did the Russian Federation and the People’s Republic of China

insist upon, and the IAEA agree to, an Additional Protocol that only relates to their

respective nuclear activities carried out for or jointly with NNWS and excludes complementary access provisions and wide-area environmental sampling?

Answer. States that are not required by the Non-Proliferation Treaty (NPT) to accept full-scope IAEA safeguards are under no obligation to accept the Model Additional Protocol as written. Rather, they were formally urged by the IAEA Board of

Governors to adopt elements of the Model Protocol that would contribute to the

strengthening of the safeguards system. In support of efforts to gain broad adherence to the Additional Protocol, all five NPT nuclear weapon states pledged to do

so.The United States pledged to accept all measures in the Model Protocol, subject

to a National Security Exclusion, continuing the long-standing U.S. policy of making

U.S. civil nuclear activities available for the same IAEA inspections as are applied

in non-nuclear-weapon states. This pledge was judged necessary to bring about a

successful conclusion to the negotiation of a Model Additional Protocol that includes

the measures the United States considered essential for strengthening the IAEA

safeguards system. Just as they did during the negotiation of the IAEA’s existing

safeguards system for non-nuclear-weapon states, important non-nuclear weapon

states expressed considerable concern during the negotiation of the Model Additional Protocol that some of the measures proposed would place their nuclear industries at a commercial disadvantage. The U.S. pledge to accept the same measures

assuaged these concerns and made agreement possible, and has been relied on by

a number of states, including close allies, in persuading their legislatures to approve

their Additional Protocols.

The Chinese and Russian Protocols are substantially less forthcoming than the

U.S. Protocol. Those countries, however, were not seeking to lead the negotiations,

and hence made no such broad pledge. They remained free to choose which of the

obligations in the Protocol they consider will contribute to nonproliferation goals

when applied in their states. Their approach focuses on providing information related to NNWS nuclear activities.

Question 46. Why did the United Kingdom and France also insist upon providing

information to the Agency on only those nuclear activities related to a NNWS (but

agreeing to complementary access and, in the case of the United Kingdom, widearea environmental sampling)? To what extent are the United Kingdom and France

subject to additional international scrutiny as members of EURATOM?

Answer. Although the UK and French Protocols appear less forthcoming than the

U.S. Protocol, other European NNWS seeking ‘‘parity’’ took into account the fact

that UK and French civil facilities are under safeguards inspections by EURATOM,

and in some cases by the IAEA. The UK and French Protocols, while accepting the

Additional Protocol measures on only commercial locations, do not contain a national security exclusion. Because most commercial activities in these countries involve interactions with the NNWS in the European Community, these declarations

are expected to cover most nuclear fuel cycle-related commercial locations in these

countries. (U.S. facilities, in contrast, are eligible for IAEA safeguards, but those are

presently applied only at U.S. request.) They were therefore willing to accept greater deviations from the Model Protocol than in the case of the United States.

Question 47. Did the United States consider a similar approach to that of Russia

and China in their Additional Protocols with the IAEA and, if so, why was it not

adopted?

Answer. No. During the negotiations of the Model Protocol, many non-nuclear

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ponent, to accept on a voluntary basis the provisions of the Model Protocol. Following the example of the Voluntary Offer, the United States stated during the negotiations that it would accept the provisions of the Model Protocol, subject to a National Security Exclusion. The United States took a leading role in the negotiation

of the Model Protocol, and the success in achieving a strong Model Protocol was

critically dependent on voluntary acceptance of Model Protocol measures by the

United States. The U.S. signature of the Additional Protocol was a significant factor

in the early decision by many non-nuclear-weapon states to accept the Protocol.

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