[Senate Executive Report 108-12]
[From the U.S. Government Publishing Office]
108th Congress Exec. Rpt.
SENATE
2d Session 108-12
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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
R E P O R T
[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 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:
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\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.''
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
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\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.
The Foreign Relations Committee was mindful of the likely
limitations of safeguards agreements at the time it reported
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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
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\3\ Committee Report, p. 14.
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 industrial 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.
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\4\ Dr. 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.'')
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Ratification and appropriate implementation by non-nuclear-
weapon 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
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.
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\5\ Answer to Committee Question for the Record, Part IX, p. 111.
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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
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\6\ Statute of the International Atomic Energy Agency, as last
amended on December 28, 1989, available at http://www.iaea.org/About/
statute_text.html.
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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 international 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-
nuclear-weapon 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-nuclear-weapon 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.
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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.
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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 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-nuclear-weapon 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 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 International Atomic Energy IAEA for the
Application of Safeguards 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 significance 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 material declared by the United States but exempted
from safeguards 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 cycle-related 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 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.
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
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 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 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.
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 non-nuclear 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-nuclear 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
---------------------------------------------------------------------------
\8\ Part IX, p. 60.
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 proliferation-sensitive 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
---------------------------------------------------------------------------
\9\ Part IX, p. 96.
---------------------------------------------------------------------------
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 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. 10
---------------------------------------------------------------------------
\10\ Part IX, p. 61.
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
---------------------------------------------------------------------------
\11\ Part IX, p. 84.
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
---------------------------------------------------------------------------
\12\ Treaty Doc. 107-7, at p. 1.
\13\ Treaty Doc. 107-7, at p. 7.
---------------------------------------------------------------------------
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 is
information, activities, and locations of direct national
security significance which cannot be protected, the national
security exclusion will be used.'' \16\
---------------------------------------------------------------------------
\14\ Ibid.
\15\ Ibid, p. 8.
\16\ Part IX, p. 106.
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
\17\ Testimony of Ambassador Linton F. Brooks, Part IX, p. 61.
---------------------------------------------------------------------------
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 inspectors access to certain parts of the
inspection location.'' \19\ Ambassador Brooks emphasized,
however, that the utility of managed access is limited:
---------------------------------------------------------------------------
\18\ Part IX, p. 64.
\19\ Treaty Doc. 107-7, at p. 4.
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
---------------------------------------------------------------------------
\20\ Part IX, p. 62.
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
---------------------------------------------------------------------------
\21\ Part IX, p. 106.
\22\ Ibid.
---------------------------------------------------------------------------
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 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. 23
---------------------------------------------------------------------------
\23\ Part IX, p. 86.
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 entry-into-force of the U.S.
Additional Protocol. 24
---------------------------------------------------------------------------
\24\ Part IX, p. 106.
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
---------------------------------------------------------------------------
\25\ Part IX, p. 91.
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.
---------------------------------------------------------------------------
\26\ Part IX, p. 92.
---------------------------------------------------------------------------
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-nuclear-weapon 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.
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 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
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\27\ Part IX, p. 109.
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 nuclear-weapon state such as the United
States.'' 28
---------------------------------------------------------------------------
\28\ Part IX, p. 111.
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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:
---------------------------------------------------------------------------
\29\ Part IX, p. 109.
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 nuclear-weapon states, which are understood to
have extensive nuclear activities not required to be
declared to the IAEA. 30
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\30\ Ibid.
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 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
wide-area 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\
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\31\ Part IX, p. 110.
\32\ Part IX, pp. 110-111.
---------------------------------------------------------------------------
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
International 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
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\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.
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
---------------------------------------------------------------------------
\34\ Ibid.
The Committee recommends that a nearly identical provision be
included in the resolution of ratification for the Additional
Protocol.
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
---------------------------------------------------------------------------
\35\ Part IX, p. 95.
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
\36\ Treaty Doc. 103-21, approved by the Senate on April 24, 1997.
---------------------------------------------------------------------------
PROTECTION OF CONFIDENTIAL INFORMATION--
(A) Unauthorized Disclosure of United States Business
Information.--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 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
---------------------------------------------------------------------------
\37\ Part IX, p. 107.
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\
---------------------------------------------------------------------------
\38\ Part IX, p. 63.
---------------------------------------------------------------------------
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 nuclear weapons, which is the
cornerstone of U.S. foreign and national security
policy.'' \39\
---------------------------------------------------------------------------
\39\ Part IX, p. 62.
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
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\40\ Part IX, p. 108.
On February 11, 2004, in a speech delivered at the National
Defense University, President Bush increased the pressure on
non-signatory 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
---------------------------------------------------------------------------
\41\ The 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.
---------------------------------------------------------------------------
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 obligations
breeds reluctance in others. Each discovery of a
clandestine programme makes us question whether more
exist. 42
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\42\ Mohammed ElBaradei, ``Towards a Safer World,'' The Economist,
October 18, 2003.
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
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\43\ General Accounting Office, ``Nuclear Nonproliferation:
Uncertainties With Implementing IAEA's Strengthened Safeguards
System,'' GAO NSIAD-98-184, July 9, 1998.
\44\ The 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.
---------------------------------------------------------------------------
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 non-nuclear weapon
states.
---------------------------------------------------------------------------
\45\ See section 1305 of P.L. 107-228, The Foreign Relations
Authorization Act, Fiscal Year 2003.
---------------------------------------------------------------------------
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 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
---------------------------------------------------------------------------
\46\ Treaty Doc. 107-7 at p. 4.
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
\47\ Part IX, p. 111.
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
---------------------------------------------------------------------------
\48\ Ibid.
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 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
---------------------------------------------------------------------------
\49\ Ibid.
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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,
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.
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\50\ This 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.
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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 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'').
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 parties 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 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.
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, non-proliferation. 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.
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, 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?
------
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 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 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.
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.
---------------------------------------------------------------------------
\1\ The 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.
---------------------------------------------------------------------------
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 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 budget 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 function 150 (international affairs), which is funded
through annual appropriations to the State Department. Under a
deferred-payment 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 Non-Proliferation 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 full-time 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.
Table 1. Inspection Activities and Costs Related to IAEA Safeguards in 2004
----------------------------------------------------------------------------------------------------------------
Nuclear
Department Department Regulatory Department Total
of Energy of Defense Commission of State
----------------------------------------------------------------------------------------------------------------
Number of U.S. Sites Currently Eligible 35 a 210 0 245
for IAEA Inspections.....................
Number of U.S. Sites Currently Inspected 3 0 1 0 4
by IAEA Each Month.......................
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.
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
start-up 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 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 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.
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 disapprove 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 Non-Proliferation
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 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 non-nuclear 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 Non-Proliferation of Nuclear Weapons, done at
Washington, London, and Moscow July 1, 1968, and
entered into force March 5, 1970.
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 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 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 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.
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.
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 so-called 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 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.
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.
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 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-into-force, 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, manufacture 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-into-force.
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 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 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.
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 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.
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.
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.
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 ``no-change'' 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.
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.
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
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.
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 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 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 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 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
nuclear-related 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 revelations would be actionable immediately, since they
would be based upon state-provided 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 Iran had had an Additional
Protocol in force, it would have had an obligation to declare 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 non-nuclear 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 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,
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, so-called ``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 recommended 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 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 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 undeclared activities. Therefore, in
accordance with the national security 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 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.
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 non-nuclear 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 equity 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 location-
specific 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 Reporting 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 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?
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?
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 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, 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 effective, 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.
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.
[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.
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. 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 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 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 non-
nuclear 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. 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\
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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.
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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 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 recognizes 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.
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.
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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.
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
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 non-nuclear 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.
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 nuclear-weapon 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 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 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]
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.
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\
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\1\ One 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.
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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 safeguards-
relevant records for the review of the inspectors. There is no
provision for routine access under the Additional Protocol, and
implementation burdens in non-nuclear-weapon 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 Protocol 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)?
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 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 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 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 wide-area 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, wide-area 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 weapon states 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. 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.