[Senate Report 109-226]
[From the U.S. Government Publishing Office]
Calendar No. 385
109th Congress Report
SENATE
2d Session 109-226
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U.S. ADDITIONAL PROTOCOL IMPLEMENTATION ACT
_______
April 3, 2006.--Ordered to be printed
_______
Mr. Lugar, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany S. 2489]
The Committee on Foreign Relations, having had under
consideration an original bill to implement the obligations of
the United States under the Protocol Additional to the
Agreement Between the United States of America and the
International Atomic Energy Agency for the Application of
Safeguards in the United States of America, with annexes,
signed at Vienna June 12, 1998, reports favorably thereon and
recommends that the bill do pass.
CONTENTS
Page
I. Purpose..........................................................1
II. Committee Action.................................................4
III. Summary..........................................................4
IV. Cost Estimate of the CBO........................................11
V. Regulatory Impact...............................................12
VI. Appendix--Declassified Answers to Questions for the Record......13
I. Purpose
The Protocol Additional to the Agreement Between the United
States of America and the International Atomic Energy Agency
(IAEA) for the Application of Safeguards in the United States
of America (the ``Additional Protocol'') supplements and amends
the verification arrangements set forth in the Agreement
Between the United States of America and the International
Atomic Energy Agency for the Application of Safeguards in the
United States of America of November 18, 1977 (the ``Voluntary
Offer''), which entered into force, following Senate advice and
consent, on December 9, 1980. The United States already allows
safeguards to be placed on certain facilities and materials
under the Voluntary Offer, an outgrowth of its strong support
for the Treaty on the Non-Proliferation of Nuclear Weapons (the
``Nuclear Nonproliferation Treaty'' or ``NPT''), which mandated
safeguards on each non-nuclear-weapon state's declared peaceful
nuclear energy facilities.
The Senate gave its advice and consent to ratification of
the Additional Protocol on March 31, 2004. The United States
has no obligation to accept safeguards on its nuclear materials
and sites as a nuclear-weapon state under Article I of the NPT.
Likewise, it is not bound to accept an Additional Protocol.
Yet, as in the case of the Voluntary Offer, the United States
negotiated and signed an Additional Protocol with the IAEA,
which incorporates the full text of the Model Additional
Protocol that non-nuclear weapon states under Article II of the
NPT are being asked to sign, ratify and implement.\1\ This
underscores the U.S. commitment to combating the spread of
nuclear weapons and demonstrates that adherence to the Model
Additional Protocol will not place non-nuclear-weapon states at
any commercial disadvantage. The United States is the only
nuclear-weapon state to accept the entire Model Additional
Protocol; however, the U.S. Additional Protocol allows the
United States to exclude activities or locations of direct
national security significance in the United States (in Article
1.b of the U.S. Additional Protocol) and gives it a right to
use managed access to protect information of direct national
security significance should inspections be carried out in the
United States (in Article 1.c). The Voluntary Offer also
contains a national security exclusion.
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\1\ INFCIRC/540, available at http://www.iaea.org/Publications/
Documents/Infcircs/1997/infcirc
540.pdf.
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The Model Additional Protocol was designed to improve the
ability of the IAEA to detect clandestine nuclear weapons
programs in non-nuclear-weapon states by providing the IAEA
with increased information about and expanded access to nuclear
fuel-cycle activities and sites. As of March 2006, 75 countries
have additional protocols in force.2 U.S.
ratification and implementation of the Additional Protocol is
intended to demonstrate to non-nuclear-weapon states that the
Additional Protocol will not adversely affect legitimate,
transparent and peaceful nuclear energy development and thus
could reduce the risk of nuclear proliferation and improve
international confidence that non-nuclear-weapon states that
are parties to the NPT are not misusing nuclear materials to
develop nuclear weapons.
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\2\ http://www.iaea.org/OurWork/SV/Safeguards/sir_table.html.
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The Additional Protocol contains a number of provisions
that require legislation to give them effect within the United
States. Enactment of the Additional Protocol's implementing
legislation would provide the Executive branch with authority
to promulgate regulations that permit IAEA inspectors,
accompanied by U.S. representatives, access to certain
locations, facilities, activities, sites and information on
activities in the United States. Until both the implementing
legislation and the regulations are in force, the United States
will not ratify the Additional Protocol, despite its having
received the Senate's advice and consent to ratification in
2004. That is because it is general U.S. treaty practice to not
formally ratify a treaty until the United States is in a
position to fulfill the treaty obligations. The implementing
legislation will also establish civil and criminal penalties
for the failure of U.S. entities identified in Article 2 of the
Additional Protocol to keep or provide such information under
record-keeping requirements promulgated by U.S. agency
regulations.
The existing U.S. declaration to the IAEA under the
Voluntary Offer will need to be supplemented by additional
information, to include:
U.S. fuel-cycle research and development activities;
Mining, processing and stockpiling of uranium ore,
uranium ore concentrate and other nuclear fuel
materials;
Some nuclear materials currently exempt from the
Voluntary Offer;
Intermediate and high-level nuclear wastes;
Manufacturing of certain materials and equipment;
The import and export of specified materials and
equipment;
Applicable site and facility information; and,
Agreed upon safeguards-related information.
Once the Additional Protocol enters into force, the United
States will be required to provide to the IAEA a declaration of
nuclear fuel cycle-related activities and, if necessary, to
provide complementary access to the IAEA to allow that agency
to verify the completeness of the U.S. declaration. The
implementing legislation also sets forth procedures for
inspections by the IAEA at U.S. locations under the Additional
Protocol; these are patterned on the procedures mandated by
Congress in 1998 for U.S. implementation of the Chemical
Weapons Convention. The legislation also establishes civil and
criminal penalties for willfully impeding a complementary
access authorized by this Act. Additionally, implementing
legislation is necessary in order for the Nuclear Regulatory
Commission (NRC) to conduct training and trial inspections at
its licensed commercial facilities.
Under the current U.S. safeguards agreement, the IAEA
already has the right to inspect certain facilities that the
United States has declared to it and are maintained on the U.S.
Eligible Facilities List. Under the terms of the Voluntary
Offer, the United States provides the IAEA with a list of
eligible facilities (about 250) that do not have direct
national security significance. These include facilities
licensed by the NRC and some license-exempt facilities of the
Department of Energy. Such inspection activities, have, since
1993, been ``conducted at the request of the United States in
order to safeguard fissile material declared excess to our
defense needs.'' \3\ The IAEA fully understands that the United
States maintains the right to engage in nuclear weapons
activities and that there is little, therefore, for the IAEA to
discover here. The Additional Protocol will not likely result
in additional inspections in the United States, but the United
States must prepare for that possibility and ensure protections
for itself if the IAEA were to conduct such inspections.
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\3\ Committee on Foreign Relations, Report on Additional Protocol,
S. Exec. Rpt. 108-12 (2004), p. 111, hereinafter ``Report.''
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The committee's implementing legislation takes into account
the need to protect U.S. national security and to abide by the
U.S. Constitution. In its consideration of Additional Protocol
implementation, the committee has also been guided by the
desire to maintain U.S. leadership in the global implementation
of IAEA safeguards. The committee finds that it is in the
interest of the United States to continue to demonstrate
leadership in this area through ratification and appropriate
implementation of the U.S. Additional Protocol and to that end
has reported favorably its legislation to implement the
Additional Protocol.
II. Committee Action
The Additional Protocol was referred to the committee on
May 10, 2002.
The committee received testimony on the Additional Protocol
at a hearing on January 29, 2004. Witnesses for this hearing
were: the Honorable Linton F. Brooks, Administrator, National
Nuclear Security Administration; the Honorable Peter
Lichtenbaum, Assistant Secretary of Commerce for Export
Administration, U.S. Department of Commerce; Ms. Susan F. Burk,
Acting Assistant Secretary of State for Non-proliferation, U.S.
Department of State; and, Mr. Mark T. Esper, Deputy Assistant
Secretary of Defense for Negotiations Policy, U.S. Department
of Defense. The committee also requested and received
statements from: the Nuclear Energy Institute; the Honorable
Ronald F. Lehman, Director of the Center for Global Security
Research at Lawrence Livermore National Laboratory and former
Director of the Arms Control and Disarmament Agency; and
Ambassador Norman A. Wulf, former Special Representative of the
President for Nuclear Non-proliferation.
At a business meeting on March 4, 2004, the committee
considered a draft resolution of ratification including 2
conditions and 8 understandings. After discussion and debate,
the resolution was approved by a vote of 19 in favor and 0
against.
On March 26, 2004, the committee reported favorably its
resolution of advice and consent to the full Senate. On March
31, 2004, the Senate gave its advice and consent to
ratification of the Additional Protocol by division vote.
On December 9, 2003, Chairman Lugar introduced S. 1987, the
Additional Protocol to the U.S.-IAEA Safeguards Agreement
Implementation Act, which was referred to the committee. S.
1987 was drafted by the administration and introduced at its
request.
Since then, committee staff engaged with executive branch
agencies and other Senate committees to craft the implementing
legislation the committee now reports to the Senate.
At a business meeting on March 14, 2006, by a voice vote,
the committee ordered the bill reported.
III. Summary
The U.S. Additional Protocol Implementation Act (``the
Act'') consists of six titles that provide authority to
implement the Additional Protocol, provide an appropriate
process for implementation of IAEA complementary access, ensure
protection of U.S. national security and business information,
and authorize appropriations to carry out the agreement.
In evaluating the implementing legislation for the
Additional Protocol, the committee paid particular attention to
past legislation adopted by Congress to implement the Chemical
Weapons Convention (CWC) in the CWC Implementation Act of 1998.
4 Where and when they were appropriate or
applicable, the committee included like provisions in its
Additional Protocol implementing legislation.
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\4\ Chemical Weapons Convention Implementation Act of 1998, 22 USC
6701 note, Division I of Public Law 105-277.
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Sections 1, 2 and 3 of the bill set forth the short title,
provide definitions and a severability provision. The
severability provision states that if any provision of the Act
is held invalid, the remainder of the Act shall remain in
force. The committee believes that the Additional Protocol and
the Act are fully consistent with the U.S. Constitution, but
has included this section as a matter of prudence.
Title I provides specific authority for the President to
implement and carry out the Act and the Additional Protocol
through directing the issuance of necessary regulations
(principally by the NRC and the Department of Commerce (DOC)).
Title II authorizes complementary access at U.S. locations
consistent with the Act, and establishes the terms upon which
such access may take place. Title III restricts disclosure
under the Freedom of Information Act of information acquired
pursuant to the Act or the Additional Protocol. Title IV makes
it illegal for entities willfully to fail to report information
required by regulations pursuant to the Act and provides for
criminal and civil penalties for violations. Title V sets forth
congressional notification and presidential determination
requirements regarding environmental sampling. Finally, Title
VI authorizes the appropriation of funds to carry out the Act.
TITLE I--GENERAL PROVISIONS
Title I authorizes the President to implement and carry out
the provisions of the Act and the Additional Protocol. This is
to be accomplished through an Executive order designating
Agencies to promulgate regulations requiring, inter alia,
submission to the United States Government of information
specified under Article 2 of the Additional Protocol. This
information is necessary for the United States to fulfill its
obligation to provide the IAEA with a declaration of its civil
nuclear and nuclear-related activities.
TITLE II--COMPLEMENTARY ACCESS
Title II sets forth the terms under which complementary
access may occur in the United States. Section 201 of the Act
states that the IAEA may not conduct complementary access in
the United States without the authorization, in accordance with
the Act, of the U. S. Government. It further directs that the
Environmental Protection Agency, the Occupational Safety and
Health Administration, and the Mine Safety and Health
Administration may not participate in complementary access.
These agencies are excluded because their employees may detect
violations of laws and regulations unrelated to the Additional
Protocol. Section 201 further requires the number of U.S.
representatives accompanying any IAEA inspectors to be kept to
a minimum. Section 202 addresses procedures for complementary
access. Section 202(b) sets forth the requirement for the
United States Government to provide actual written notice of a
complementary access request, as soon as possible, to the
owner, operator, occupant or agent in charge of the location to
be inspected. The notice must contain the purpose of the access
request, the basis for selection of the location, the
activities that will be carried out, the time and duration of
the access, and the identities of the inspectors. Section
202(b)(4) requires a separate notice each time that
complementary access is sought. Section 202(c) requires IAEA
and U.S. personnel participating in the complementary access to
show their credentials prior to gaining entry to the inspected
location.
Section 202(d)(1) states that IAEA inspectors, during
complementary access, may generally conduct activities
specified under Article 6 of the Additional Protocol for the
types of locations being inspected. There are several
exceptions. First section 202(d)(1) recognizes that the United
States Government has certain rights under the Additional
Protocol to limit such access. In addition to its right under
Article 1.b of the Protocol to deny the IAEA access to
activities with direct national security significance or to
locations or information associated with such activities, the
United States may, under Article 1.c of the Protocol, manage
access in connection with such activities, locations or
information. These rights are unilateral and absolute; they are
not subject to challenge by or negotiation with the IAEA.
Furthermore, Article 7 of the Additional Protocol provides for
managed access to other locations, under arrangements with the
IAEA, to prevent the dissemination of proliferation sensitive
information, to meet safety or physical protection
requirements, or to protect proprietary or commercially
sensitive information. Second, Section 202(d)(2) lists a series
of items that are specifically excluded, from IAEA access.
These exceptions, which are directed mainly at protecting
business information, may not be enforced, however, if the
Additional Protocol requires such disclosure. Section 202(e)
requires that all persons participating in complementary
access, including U.S. representatives, observe all
environmental, health, safety and security regulations
applicable for the inspected location.
Section 203 provides the legal framework for IAEA
inspectors to gain complementary access to U.S. locations under
the Additional Protocol. Section 203(a) sets forth three
procedures for gaining such access: in cases in which the
consent of the owner, operator, occupant or agent in charge of
the locations to be inspected under complementary access has
been obtained; in cases in which such consent is not obtained
and where an administrative search warrant would then be
required; and in cases in which expedited access is required.
The Additional Protocol provides for IAEA complementary
access to a U.S.-declared location in the United States in some
cases if the IAEA requests so with advance notice of less than
two hours in ``exceptional circumstances'' (Article 4.b (ii)).
The committee has included an expedited access procedure in
Section 203(a)(2) that makes clear that in such circumstances
no warrant or consent would be required to gain entry, ``to the
extent such access is consistent with the Fourth Amendment.''
The remainder of Section 203 addresses the requirements for
obtaining an administrative search warrant and what such a
warrant must contain. Section 203(b)(1) states that the United
States Government shall provide to a judge of the United States
(defined in section 2(7) of the Act as a United States district
judge, or a United States magistrate judge appointed under the
authority of chapter 43 of title 28, United States Code) all
appropriate information regarding the basis for selecting a
particular location for complementary access. Section 203(b)(2)
requires the United States to submit to the judge an affidavit
in obtaining administrative search warrants stating, among
other things, that the Additional Protocol is in force in the
United States, the Protocol's applicability to the location to
be inspected, and that the complementary access requested is
consistent with the provisions of the Additional Protocol,
including Article 4 regarding the purpose of the access and
Article 6 regarding its scope. The affidavit must also
indicate: ``the items, documents, and areas to be searched and
seized''; the anticipated time and duration of the inspection;
and either that the location to which entry in connection with
complementary access is sought was selected because of probable
cause that information was not correctly and fully reported as
required pursuant to regulations promulgated under the Act, and
that the location to be inspected contains evidence of such
violation, or that the location was selected pursuant to a
reasonable general administrative plan based on specific
neutral criteria.
Section 204 makes it unlawful for any person willfully to
fail or refuse to permit, or to disrupt, delay, or otherwise
impede, a complementary access authorized by this Act or an
entry in connection with such access. The committee views this
provision as a logical corollary to the rest of this Title,
which creates clear obligations that the U.S. Government must
satisfy before a complementary access may proceed. A similar
offense was created by the CWC Implementation Act.
TITLE III--CONFIDENTIALITY OF INFORMATION
Title III of the implementing legislation exempts from the
Freedom of Information Act (FOIA) disclosure of information
obtained by the United States Government in implementing the
provisions of the Additional Protocol. Thus, information
reported to the U.S. Government by entities covered by Article
2 of the Additional Protocol, as required by regulation, is not
subject to release under the FOIA.
TITLE IV--ENFORCEMENT
Section 401 of the proposed Act prohibits the willful
failure or refusal of any person to maintain records or submit
reports to the United States Government as required by
regulations issued under Title I of the Act, or to permit
access to or copying of such records by the United States
Government.
Section 402(a) provides for civil penalties that may be
assessed in the event of violations of section 204 or section
401 of the Act. The procedure established by section 402 for
assessing a civil penalty includes: notice by an authorized
executive agency to the person being penalized; a hearing
before an administrative judge, if requested within 15 days
after receiving the notice; factors to be taken into account in
assessing penalties; review by a U.S. Court of Appeals, if
requested within 30 days after a final order is issued; and, if
necessary, civil action in a district court to enforce a final
order. In any such civil action, the validity and
appropriateness of the final order shall not be subject to
review. Civil penalties shall not exceed $25,000 for each
violation. Each day during which a violation of section 204
continues shall constitute a separate violation of that
statute.
Section 402(b) provides that in addition to, or in lieu of,
civil penalties under section 402(a), a person who violates
section 204 or section 401 of the Act may be fined under title
18, United States Code, imprisoned for not more than five
years, or both.
The prohibitions of Title IV are necessary to implement the
Additional Protocol, as the United States is dependent on the
reporting it receives and on the cooperation of facility owners
or operators to meet its treaty obligations.
TITLE V--ENVIRONMENTAL SAMPLING
In its work on the Additional Protocol and its implementing
legislation, the committee has devoted particular attention to
the issue of environmental sampling, both location-specific and
wide-area, under the complementary access provisions of the
Additional Protocol. The committee asked a number of questions,
both as a part of its formal record of decision on the
Additional Protocol and in meetings with executive branch
officials, regarding the use of this sampling technique as a
safeguards verification tool. The administration's unclassified
answers to the committee's questions for the record, originally
provided during consideration of the Additional Protocol itself
and published in Executive Report 108-12, were later
supplemented by declassified answers to four questions, which
are reproduced later in this report.
The committee noted in its report on the Additional
Protocol that were any potential national security concerns to
arise with regard to the use of environmental sampling in the
United States, the national security exclusion would apply.
This view was supported by the letter sent on April 30, 2002,
by then-U.S. Ambassador to the IAEA Kenneth C. Brill to the
Director General of the IAEA, in which the United States stated
its interpretation of certain provisions in the Additional
Protocol. This letter was incorporated by reference as
Understanding (1) of the Senate-approved resolution of
ratification. Committee staff also confirmed with the IAEA that
it does not dispute with the United States any of the
interpretations set forth in the Brill letter.
There are two types of environmental sampling under the
Additional Protocol, location-specific and wide-area. Article 6
of the Protocol authorizes the Agency to carry out collection
of location-specific environmental samples in any complementary
access. Article 5 of the Protocol specifies the locations to
which the IAEA may have access in the United States, subject to
the managed access provision and the national security
exclusion of Article 1 or the managed access provisions of
Article 7, and the purposes for such access.
In answer to a committee question for the record, the
administration summarized the relevance of location-specific
environmental sampling to IAEA inspections:
The IAEA conducts environmental sampling, inter alia,
to characterize the composition of material found in
the environment at a location. This measure is employed
to detect the presence of undeclared nuclear activities
at a location. This data provides information on the
history of nuclear material processing activities at
the location or of materials that have been received or
otherwise deposited at the location. \5\
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\5\ See Appendix, p.14.
IAEA inspections in North Korea and Iran have made notable
use of location-specific environmental sampling (more commonly
known as ``swipes'') to determine whether country declarations
regarding nuclear activities (including possible uranium
enrichment or spent fuel reprocessing) were accurate. The very
qualities that make such sampling useful in a non-nuclear-
weapons state may present a dilemma, however, for a recognized
nuclear-weapons state under the NPT. As the administration went
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on to explain:
Environmental sampling provides information about the
material present at a given location from current and
past operations, including the materials' isotopic
ratios. It also can be used to determine whether, and
to a certain extent how, a facility is processing or
enriching uranium, or producing/separating plutonium,
other actinides or tritium, or other materials.
Furthermore, to varying degrees depending upon the type
of sample material, it can be used to determine the
approximate date of these activities. If used at
locations where relevant environmental signatures are
present, it could reveal information of direct national
security significance to the United States. It is also
essential to the success of the IAEA in its safeguards
mission that it is able to detect and discover
undeclared activity using such methods in non-nuclear
weapon states.\6\
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\6\ Ibid.
Under the national security exclusion in Article 1 of the
Protocol, the United States has the right to exclude from the
Article 2 declarations any locations that it determines would
result in IAEA access to activities with direct national
security significance or to locations or information associated
with such activities. Complementary access under Articles
5.a(i), 5.a(ii), 5.a(iii) and 5.b is limited to those locations
identified by the United States in its declarations under
Article 2. The IAEA could seek access to other locations under
Article 5.c, but the United States will invoke the national
security exclusion and deny access if it determines that such
access would result in access by the IAEA to activities with
direct national security significance or to locations or
information associated with such activities.
Under Article 9 of the Additional Protocol, the United
States shall provide the IAEA with access to locations
specified by the IAEA to carry out wide-area environmental
sampling, provided that if the United States is unable to
provide such access, it shall make every reasonable effort to
satisfy IAEA requirements at alternative locations. Article 9
further provides that the IAEA shall not seek such access until
the use of wide-area environmental sampling and the procedural
arrangements therefore have been approved by the IAEA's Board
of Governors and only following consultations between the IAEA
and the United States. Such arrangements have not been brought
before or approved by the Board. The United States has informed
the IAEA that even if such arrangements were approved, the
United States does not foresee circumstances in which the IAEA
would need to propose to conduct wide-area environmental
sampling in this country.
With regard to environmental sampling, the Brill letter
stated:
Should the use of wide-area environmental sampling be
approved by the IAEA Board of Governors in accordance
with Article 9, the United States does not foresee
circumstances in which the IAEA would need to propose
to conduct wide-area environmental sampling in the
United States.
In accordance with the NSE, the United States will
not allow location-specific environmental sampling with
respect to locations, information, and activities of
direct national security significance to the Untied
States. In this regard, the United States intends to
use the NSE with regard to location-specific
environmental sampling at any current or former nuclear
weapon production complex site. \7\
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\7\ Report, p. 24.
The IAEA Board of Governors has not taken a decision to
approve the use of wide-area environmental sampling techniques
for use in its verification activities, and may not do so for
quite some time, if ever, because the technology associated
with such sampling has not yet fully developed for use in an
accurate and cost-effective manner in those activities. It is
highly unlikely, moreover, that sampling of this kind would be
used in the United States to detect undeclared nuclear
activities. The IAEA does not have the resources to conduct
such activities in the United States in connection with its
Additional Protocol and, in any case, since the United States
is a lawful nuclear weapon state, would not need to do so.
Nevertheless, the United States has accepted all of the text of
the Additional Protocol, with the only addition being its
national security rights in Article 1. Fundamentally then, the
committee is faced with the need to balance U.S. national
security concerns with its leadership and support for the best
IAEA verification techniques possible in non-nuclear weapon
states by demonstrating its willingness, under appropriate
measures, to incorporate environmental sampling into the U.S.
compliance regime under the Additional Protocol.
The committee doubts that the IAEA will ever have reason to
use environmental sampling, either location-specific or wide-
area sampling, to verify U.S. compliance with its Additional
Protocol. The committee notes that the Brill letter states a
definitive U.S. position on the use of the national security
exclusion in connection with location-specific environmental
sampling, and the committee supports that position.
The Brill letter does not state a definitive U.S. position
regarding wide-area sampling. Indeed, the United States has
conducted environmental sampling and provided the IAEA with
information regarding testing of such sampling in cooperation
with the Department of Energy and the National Laboratories for
the important purpose of providing assistance to the IAEA to
enhance its verification activities and safeguards
technologies. In answer to a committee question for the record,
the administration noted that ``wide-area environmental
sampling was tested by the United States in advance of it being
proposed as a measure for use by the IAEA.'' \8\ Activities
that support the IAEA, such as cooperation with the National
Laboratories, are distinctly different from actual use of the
same technologies in the United States by the IAEA for
safeguards verification under the Additional Protocol.
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\8\ See Appendix, p. 15.
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Title V of the committee's implementing legislation is
drafted to meet the requirements of U.S. national security,
Congressional oversight, and U.S. leadership on
nonproliferation. It does not prevent the use of wide-area or
other environmental sampling, but would provide a statutory
procedure involving Congress.
Section 501 creates a reporting requirement that not later
than 30 days after the IAEA Board of Governors approves wide-
area sampling for use as a safeguards tool the President shall
notify the appropriate congressional committees of that
decision. While it is likely that the committee would know in
any case of such a decision, the committee intends, as required
by subsection 501(b), that the notification from the President
would include a detailed discussion of the measures approved by
the Board of Governors and whether they may be used in the
United States.
Sections 502 and 503 require reporting and certain
certifications to Congress prior to the use in the United
States of wide-area or location-specific environmental
sampling. Nothing in these sections prevents compliance with a
U.S. obligation. The committee was informed during its
consideration of the Additional Protocol itself that a National
Security Presidential Directive would be issued to guide use of
the national security exclusion in connection with the
Additional Protocol. Noting the importance of Congressional
involvement in such decisions, the committee included sections
502 and 503 for the unlikely circumstance in which the
President did not apply the exclusion to environmental
sampling. The committee does not intend that this Title should
encourage the use of such sampling in the United States or
discourage the use of the national security exclusion, as
appropriate, to deny the IAEA such access.
IV. Cost Estimate of the Congressional Budget Office
Rule XXVI, paragraph 11(a) of the Standing Rules of the
Senate requires that committee reports on bills or joint
resolutions contain a cost estimate for such legislation in the
fiscal year it is reported and in each of the following 5
years; however, the CBO estimate was not available at the time
of publication of this report. The Chairman will seek consent
to insert it into the Congressional Record when it is provided
to the committee.
V. Regulatory Impact
During its consideration of advice and consent to the
ratification of the Additional Protocol itself, and in
compliance with paragraph 11(b) of Rule XXVI of the Standing
Rules of the Senate, the committee inquired of the executive
branch regarding what regulatory changes were envisioned for
the Additional Protocol. The administration responded that:
Draft regulations are being prepared by both NRC and
DOC as part of their preparations for implementation.
Before the rules can be published, the information
collection forms must be approved by OMB and other
regulatory requirements must be satisfied, (e.g., the
Paperwork Reduction Act). This approval process cannot
be performed before the treaty has been ratified and
legislation is enacted. DOC's proposed rule must be
published in the Federal Register and will request
public comments before a final rule is issued. It is
expected to take less than a year from assignment of
implementing responsibility by the President to NRC and
DOC until the new rules are published for
implementation. The regulatory changes necessary are
those that establish the requirement for entities not
identified on the Eligible Facilities List to report
information and to provide access to the IAEA at the
covered location. The Presidential assignment of
responsibilities that follows upon the authority
provided to him in the implementing legislation
provides NRC and DOC the authority to implement their
respective responsibilities.\9\
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\9\ Report, p. 113.
A P P E N D I X
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DECLASSIFIED ANSWERS TO
QUESTIONS FOR THE RECORD
United States Department of State,
Washington, D.C. 20520,
September 7, 2004.
Hon. Richard G. Lugar, Chairman,
Committee on Foreign Relations,
U.S. Senate.
Dear Mr. Chairman. In response to a request from a member
of your committee's staff, we are enclosing a copy of
unclassified administration responses to several of the
committee's questions for the record regarding the U.S.-IAEA
Additional Protocol. Classified answers to the same questions
were provided to the committee in February 2004. Please allow
the Department of State to take this opportunity to express
appreciation for the Senate's prompt and favorable
consideration of the Protocol.
Please let us know if we can be of further assistance.
Sincerely,
Paul V. Kelly,
Assistant Secretary Legislative Affairs
Enclosure:
As stated.
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Unclassified Answers to QFRs 15-18, Dealing With Environmental Sampling
Question (15). Ambassador Brill's letter states that ``the
United States intends to use the NSE [the `National Security
Exclusion' provided by Article 1.b of the Additional Protocol]
with regard to location-specific environmental sampling at any
current or former nuclear weapon production complex site.''
What are the capabilities of such sampling, as used by the
IAEA, and why do they make it unwise to permit any and all such
sampling at any current or former nuclear weapon production
complex sites, as opposed to a case-by-case consideration of
requests to permit such sampling? In open form if possible, but
in classified form if necessary, could the administration
clarify its policy with respect to the use of sampling
techniques, to include environmental sampling, to clarify the
risks associated with each type of sampling technique for U.S.
national security or business proprietary information?
Answer (15). The IAEA conducts environmental sampling,
inter alia, to characterize the composition of material found
in the environment at a location. This measure is employed to
detect the presence of undeclared nuclear activities at a
location. This data provides information on the history of
nuclear material processing activities at the location or of
materials that have been received or otherwise deposited at the
location.
Environmental sampling provides information about the
material present at a given location from current and past
operations, including the materials' isotopic ratios. It also
can be used to determine whether, and to a certain extent how,
a facility is processing or enriching uranium, or producing/
separating plutonium, other actinides or tritium, or other
materials. Furthermore, to varying degrees depending upon the
type of sample material, it can be used to determine the
approximate date of these activities. If used at locations
where relevant environmental signatures are present, it could
reveal information of direct national security significance to
the United States. It is also essential to the success of the
IAEA in its safeguards mission that it is able to detect and
discover undeclared activity using such methods in non-nuclear
weapon states.
In accordance with Article I, the United States will
prohibit environmental sampling or any other activity by the
IAEA wherever necessary. A U.S. decision to invoke the National
Security Exclusion is not subject to challenge by the IAEA, nor
need the U.S. provide the Agency any explanation for its
decision. The administration has already informed the IAEA that
the United States intends to use the NSE with regard to
location-specific environmental sampling at any current or
former nuclear weapon production complex site. Environmental
sampling may also be excluded at other locations in accordance
with the terms of the National Security Exclusion. In addition,
at locations not covered by the National Security Exclusion,
the U.S. may invoke the managed access provisions of Article 7
of the Additional Protocol to offer alternatives to the use of
environmental sampling. Such alternatives may be offered in
order to prevent the dissemination of proliferation sensitive
information, to meet safety or physical protection
requirements, or to protect proprietary or commercially
sensitive information.
Question (16). Ambassador Brill's letter states that ``the
United States does not foresee circumstances in which the IAEA
would need to propose to conduct wide-area environmental
sampling in the United States'' pursuant to Article 9 of the
Additional Protocol. Could the administration clarify its
understanding of what the impact of this statement is expected
to be, since it is not accompanied by any warning that the
United States will invoke Article 1.b (the National Security
Exclusion) to deny permission to conduct such sampling?
Answer (16). Under Article 9, the United States shall
provide the Agency with access to locations specified by the
Agency to carry out wide-area environmental sampling, provided
that, if the United States is unable to provide such access, it
shall make every reasonable effort to satisfy Agency
requirements at alternative locations. Article 9 further
provides that the Agency shall not seek such access until the
use of wide-area environmental sampling and the procedural
arrangements therefore have been approved by the Agency's Board
of Governors and following consultations between the Agency and
the United States. Such arrangements have not been brought
before or approved by the Board. The United States has informed
the Agency that even if such arrangements were approved, the
United States does not foresee circumstances in which the
Agency would need to propose to conduct wide-area environmental
sampling. If wide-area sampling is eventually approved by the
Board of Governors, its use in the United States requires
consultations between the IAEA and the United States. Given the
requirement for consultation and therefore U.S. agreement, the
United States did not feel it necessary to make a direct
reference to Article 1.b.
Question (17). When does the administration expect a
definitive decision from the IAEA Board of Governors regarding
the use of wide-area environmental sampling and the procedural
arrangements for its use in the United States pursuant to
Article 9 of the Additional Protocol? Is the administration
seeking such a decision? For locations co-located with
locations that are not of direct national security significance
in the United States, yet which do contain information or
activities of direct national security significance, what
specific procedural arrangements would the United States seek
to create regarding the use of wide-area environmental
sampling? Would these specific arrangements need to go beyond
the right of managed access contained in Article 1.c? Why did
the United States not seek a more definitive provision with
respect to wide-area environmental sampling during negotiations
on the Additional Protocol?
Answer (17). The United States strongly supported including
wide-area environmental sampling as a potential measure under
the Protocol because wide-area sampling, if it becomes
practical, has the potential to detect undeclared nuclear
activities throughout a state. However, while wide-area
environmental sampling was tested by the United States in
advance of it being proposed as a measure for use by the IAEA,
the technique has not yet been demonstrated to be technically
feasible or cost-effective as a safeguards measure. Neither the
IAEA nor the Board of Governors has established a timeline for
taking a decision in favor of using wide-area environmental
sampling as a safeguards measure under the Additional Protocol.
The United States has not pressed for either the Agency or the
Board of Governors to take such a decision.
This situation is unlikely to change unless and until
sampling and analysis technology improve significantly. If
technical improvements and falling costs eventually make wide-
area environmental sampling a useful safeguards measure, the
Board of Governors will likely consider approving the
technique. The United States will decide at that time whether
to support the use of the measure, based on its ability to
contribute to the effectiveness of safeguards. If wide-area
sampling is eventually approved by the Board of Governors, its
use in the United States requires consultations between the
IAEA and the United States.
The United States legitimately possesses undeclared nuclear
activities, many with publicly acknowledged locations, and
there is no nonproliferation purpose served by searching for
undeclared activities within the United States. Furthermore,
the United States has obligations both under its own laws and
regulations and in the first article of the Non-Proliferation
Treaty to prohibit the release of nuclear weapons information.
The national security exclusion included in Article 1.b and
1.c of the Additional Protocol is sufficient to allow us to
prevent disclosure of activities and information of direct
national security significance to the United States.
Question (18). Are there any formal or informal
understandings with the IAEA with regard to the use of wide-
area environmental sampling in the United States? What are the
expected capabilities of IAEA wide-area environmental sampling,
and what potential risks for U.S. locations result from those
capabilities? Has the interagency conducted an analysis of the
likely impacts of 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 (18). There are no formal or informal understandings
with the IAEA with regard to the use of wide-area environmental
sampling in the United States. Because wide-area environmental
sampling is not yet a practical technology for safeguards
applications, the technologies that might be used by the IAEA
and their capabilities are not defined.
The United States does not foresee circumstances in which
the IAEA would need to propose to conduct wide-area
environmental sampling in the United States. In accordance with
the National Security Exclusion, the United States will
prohibit environmental sampling by the IAEA wherever necessary.