[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1987 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                S. 1987

 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, known as ``the Additional 
        Protocol'' signed by the United States on June 12, 1998.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 9, 2003

   Mr. Lugar introduced the following bill; which was read twice and 
             referred to the Committee on Foreign Relations

_______________________________________________________________________

                                 A 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, known as ``the Additional 
        Protocol'' signed by the United States on June 12, 1998.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This division may be cited as the ``Additional Protocol to the 
U.S.-IAEA Safeguards Agreement Implementation Act of 200-''.

SEC. 2. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Congressional findings.
Sec. 4. Definitions.
Sec. 5. Severability.
                      TITLE I--GENERAL PROVISIONS

Sec. 101. Authorization.
                     TITLE II--COMPLEMENTARY ACCESS

Sec. 201. Authority to conduct complementary access.
Sec. 202. Procedures for complementary access.
Sec. 203. Consents, warrants and warrantless complementary access.
               TITLE III--CONFIDENTIALITY OF INFORMATION

Sec. 301. Restrictions on disclosure.
                        TITLE IV--RECORDKEEPING

Sec. 401. Violations.
                          TITLE V--ENFORCEMENT

Sec. 501. Penalties.
Sec. 502. Specific enforcement.
                    TITLE VI--AUTHORIZATION OF FUNDS

Sec. 601. Authorization.

SEC. 3. CONGRESSIONAL FINDINGS.

                  congressional declaration of policy

    The Congress finds--
            (1) that the proliferation of nuclear weapons or other 
        nuclear explosive devices poses a grave threat to the security 
        interests of the United States;
            (2) that the 1968 Treaty on the Non-Proliferation of 
        Nuclear Weapons (NPT) has proven critical to limiting such 
        proliferation, and remains the best means for preventing the 
        spread of nuclear weapons or other nuclear explosive devices to 
        additional countries;
            (3) that for the NPT to be effective, each of its non-
        nuclear-weapon State Parties must conclude a comprehensive 
        safeguards agreement with the International Atomic Energy 
        Agency (the ``IAEA'');
            (4) that recent events emphasize the urgency of 
        strengthening the effectiveness and improving the efficiency of 
        the safeguards system. This can best be accomplished by 
        providing IAEA inspectors with more information about and 
        broader (complementary) access to nuclear activities within the 
        territory of non-nuclear-weapon State NPT parties;
            (5) that the proposed scope of such expanded information 
        and complementary access has been negotiated by the member 
        states of the IAEA in the form of a Model Additional Protocol 
        to existing safeguards agreements and that universal acceptance 
        of Additional Protocols is essential to enhancing the 
        effectiveness of the NPT;
            (6) that the United States, as a nuclear-weapon State Party 
        to the NPT, signed 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, which contains measures that protect 
        its right to determine and exclude IAEA access to activities 
        with direct national security significance or to locations or 
        information associated with such activities and to protect 
        proprietary and commercially sensitive information; and
            (7) that implementation of this Additional Protocol in the 
        United States in a manner consistent with its obligations under 
        the NPT will strongly encourage other Parties, especially non-
        nuclear-weapon State Parties, to conclude Additional Protocols 
        and thereby strengthen the NPT safeguards system and reduce the 
        threat of nuclear proliferation, which is of direct and 
        substantial benefit to the United States.

SEC. 4. DEFINITIONS.

    In this Act:
            (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, which was signed by both parties in Vienna on June 
        12, 1998.
            (2) IAEA.--The term ``IAEA'' means the International Atomic 
        Energy Agency.
            (3) Complementary access.--The term ``complementary 
        access'' means the IAEA's access rights as set forth in the 
        Additional Protocol.
            (4) Facility.--The term ``facility'' has the meaning set 
        forth in article 18 of the Additional Protocol.
            (5) Judge of the united states.--The term ``judge of the 
        United States'' means a judge or magistrate judge of a district 
        court of the United States.
            (6) Person.--The term ``person'', except as otherwise 
        provided, means any individual, corporation, partnership, firm, 
        association, trust, estate, public or private institution, any 
        State or any political subdivision thereof, or any political 
        entity within a State, any foreign government or nation or any 
        agency, instrumentality or political subdivision of any such 
        government or nation, or other entity located in the United 
        States.
            (7) Safeguards agreement.--The term ``Safeguards 
        Agreement'' means 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, 
        which entered into force in December 9, 1980.
            (8) Site.--The term ``site'' has the meaning set forth in 
        article 18 of the Additional Protocol.
            (9) United states.--The term ``United States'' means the 
        several States of the United States, the District of Columbia, 
        and the commonwealths, territories, and possessions of the 
        United States and includes all places under the jurisdiction or 
        control of the United States, including--
                    (A) any of the places within the provisions of 
                paragraph (41) of section 40102 of title 49, United 
                States Code;
                    (B) any civil aircraft of the United States or 
                public aircraft, as such terms are defined in 
                paragraphs (17) and (37), respectively, of section 
                40102 of title 49, United States Code; and
                    (C) any vessel of the United States, as such term 
                is defined in section 3(b) of the Marine Drug 
                Enforcement Act, as amended (section 1903(b) of title 
                46, United States Code App.).
            (10) Location.--The term ``location'' means any geographic 
        point or area declared by the United States or specified by the 
        International Atomic Energy Agency.

SEC. 5. SEVERABILITY.

    If any provision of this Act, or the application of such provision 
to any person or circumstance, is held invalid, the remainder of this 
Act, or the application of such provision to persons or circumstances 
other than those as to which it is held invalid, shall not be affected 
thereby.

                      TITLE I--GENERAL PROVISIONS

SEC. 101. AUTHORIZATION.

    (a) Authorization.--The President is authorized to implement and 
carry out the provisions of this Act and the Additional Protocol and 
shall designate through Executive Order which agencies of the United 
States, which may include but are not limited to the Department of 
State, the Department of Defense, the Department of Justice, the 
Department of Commerce, the Department of Energy, and the Nuclear 
Regulatory Commission, shall issue, amend, or revise and enforce 
regulations in order to implement this Act and the provisions of the 
Additional Protocol.

                     TITLE II--COMPLEMENTARY ACCESS

SEC. 201. AUTHORITY TO CONDUCT COMPLEMENTARY ACCESS.

    (a) Prohibition.--No complementary access to any location in the 
United States shall take place pursuant to the Additional Protocol 
without the authorization of the United States Government in accordance 
with the requirements of this Act.
    (b) Authority.--
            (1) Complementary access to any location in the United 
        States subject to access under the Additional Protocol is 
        authorized in accordance with this Act.
            (2) United states representative.--
                    (A) In the event of complementary access to a 
                privately owned or operated location, no employee of 
                the Environmental Protection Agency, the Mine Safety 
                and Health Administration, or the Occupational Safety 
                and Health Administration may participate in the 
                access.
                    (B) The number of duly designated representatives 
                shall be kept to the minimum necessary.

SEC. 202. PROCEDURES FOR COMPLEMENTARY ACCESS.

    (a) In General.--Each instance of complementary access to a 
location in the United States under the Additional Protocol shall be 
conducted in accordance with this section and sections 201 and 203.
    (b) Notice.--
            (1) In general.--Complementary access referred to in 
        subsection (a) may occur only upon issuance of an actual 
        written notice by the United States Government to the owner, 
        operator, occupant, or agent in charge of the location to be 
        subject to complementary access.
            (2) Time of notification.--The notice shall be submitted to 
        the owner, operator, occupant, or agent in charge as soon as 
        possible after the United States Government has received 
        notification that the IAEA seeks complementary access. Notices 
        may be posted prominently at the location if the United States 
        Government is unable to provide actual written notice to the 
        owner, operator, occupant, or agent in charge of the premises.
            (3) Content of notice.--
                    (A) In general.--The notice under paragraph (1) 
                shall include all appropriate information supplied by 
                the IAEA to the Department of State concerning--
                            (i) the purpose for the complementary 
                        access;
                            (ii) the basis for the selection of the 
                        facility, site or other location for the 
                        complementary access sought;
                            (iii) the activities that will be carried 
                        out during the complementary access;
                            (iv) the time and date that the 
                        complementary access will begin, and the 
                        anticipated period covered by the complementary 
                        access; and
                            (v) the names and titles of the inspectors.
            (4) Separate notices required.--A separate notice shall be 
        provided each time that complementary access is sought by the 
        IAEA.
    (c) Credentials.--The complementary access team of the IAEA and 
representatives of the United States Government or designees of the 
United States Government shall display appropriate identifying 
credentials to the owner, operator, occupant, or agent in charge of the 
location before gaining complementary access.
    (d) Scope.--
            (1) In general.--Except as provided in a warrant issued 
        under section 203, and subject to the United States 
        Government's rights under the Additional Protocol to limit 
        complementary access, complementary access to a location 
        pursuant to this title may extend to all activities 
        specifically permitted for such locations by article 6 of the 
        Additional Protocol.
            (2) Exception.--Unless required by the Additional Protocol, 
        no inspection under this title shall extend to--
                    (A) financial data;
                    (B) sales and marketing data (other than shipment 
                data);
                    (C) pricing data;
                    (D) personnel data;
                    (E) patent data;
                    (F) data maintained for compliance with 
                environmental or occupational health and safety 
                regulations; or
                    (G) research data.
    (e) Environment, Health, Safety, and Security.--
            (1) Compliance with regulations.--In carrying out their 
        activities, members of the IAEA complementary access team and 
        representatives of the United States Government or designees of 
        the United States Government shall observe applicable 
        environmental, health, safety, and security regulations 
        established at the location subject to complementary access, 
        including those for protection of controlled environments 
        within a facility and for personal safety.

SEC. 203. CONSENTS, WARRANTS AND WARRANTLESS COMPLEMENTARY ACCESS.

    (a) In General.--
            (1) Where a warrant would otherwise be required, the United 
        States Government shall seek the consent of the owner or the 
        operator, occupant, or agent in charge of the location prior to 
        gaining complementary access to that location pursuant to 
        sections 201 and 202. If consent is obtained, no warrant is 
        required for such complementary access. The owner or the 
        operator, occupant, or agent in charge of the location may 
        withhold consent for any reason or no reason. If consent is 
        withheld, the United States Government may seek an 
        administrative search warrant from a judge of the United States 
        pursuant to subsection (b). Proceedings regarding the issuance 
        of an administrative search warrant shall be conducted ex 
        parte, unless otherwise requested by the United States 
        Government.
            (2) Nothing in this Act shall be construed to require the 
        United States Government to obtain a warrant to gain 
        complementary access in any situation in which the Fourth 
        Amendment would not otherwise require a warrant.
    (b) Administrative Search Warrants for Complementary Access.--
            (1) Obtaining administrative search warrants.--For 
        complementary access conducted on the territory of the United 
        States pursuant to the Additional Protocol, and for which the 
        acquisition of a warrant is required, the United States 
        Government shall first obtain an administrative search warrant 
        from a judge of the United States. The United States Government 
        shall provide to the judge of the United States all appropriate 
        information supplied by the IAEA to the Department of State 
        regarding the basis for the selection of the facility, site or 
        other location to which complementary access is sought. The 
        United States Government shall also provide any other 
        appropriate information available to it relating to the 
        reasonableness of the selection of the facility, site or other 
        location.
            (2) Content of affidavits for administrative search 
        warrants.--The judge of the United States shall promptly issue 
        an administrative search warrant authorizing the requested 
        complementary access upon an affidavit submitted by the United 
        States Government showing--
                    (A) that the Additional Protocol is in force;
                    (B) that the designated facility, site or other 
                location is subject to complementary access under the 
                Additional Protocol;
                    (C) that the purpose of IAEA complementary access 
                is to verify the correctness and completeness of 
                information declared by the United States Government 
                pursuant to article 2 of the Additional Protocol;
                    (D) that complementary access is in accordance with 
                article 4 of the Additional Protocol;
                    (E) that the scope of the IAEA's complementary 
                access, as well as what it may collect, shall be 
                limited to that listed in article 6 of the Additional 
                Protocol;
                    (F) the items, documents, and areas to be searched 
                and seized;
                    (G) the earliest commencement and the anticipated 
                duration of the complementary access period, as well as 
                the expected times of day during which such 
                complementary access will take place; and
                    (H) that the location to which complementary access 
                is sought was selected either (i) because there is 
                probable cause, on the basis of specific evidence, to 
                believe that information required to be reported 
                regarding a location pursuant to regulations 
                promulgated under the Act is incorrect or incomplete, 
                and that the location to be accessed contains evidence 
                regarding that violation; or (ii) pursuant to a 
                reasonable general administrative plan based upon 
                specific neutral criteria.
            (3) Content of warrants.--A warrant issued under paragraph 
        (2) shall specify the same matters required of an affidavit 
        under that paragraph. In addition to the requirements for a 
        warrant issued under this paragraph, each warrant shall 
        contain, if known, the identities of the representatives of the 
        IAEA on the complementary access team and the identities of the 
        representatives of the United States Government or designees of 
        the United States Government required to display identifying 
        credentials under paragraph 202(c) of this Act.

               TITLE III--CONFIDENTIALITY OF INFORMATION

SEC. 301. RESTRICTIONS ON DISCLOSURE.

    (a) Protection of Confidentiality of Information.--Information 
reported to, or otherwise acquired by, the United States Government 
under this Act or under the Additional Protocol shall be exempt from 
disclosure under sections 552 and 552a of title 5, United States Code.
    (b) Contractor Personnel.--Contractor personnel shall not disclose 
information acquired in connection with aid they provide in the 
execution of complementary access.

                        TITLE IV--RECORDKEEPING

SEC. 401. VIOLATIONS.

    (a) It shall be unlawful for any person willfully to fail or 
refuse--
            (1) to establish or maintain any record required by any 
        regulation prescribed under this Act;
            (2) to submit any report, notice or other information to 
        the United States Government in accordance with any regulation 
        prescribed under this Act; or
            (3) to permit access to or copying of any record by the 
        United States Government in accordance with any regulation 
        prescribed under this Act.

                          TITLE V--ENFORCEMENT

SEC. 501. PENALTIES.

    (a) Civil.--
            (1) Penalty amounts.--
                    (A) Recordkeeping violations.--Any person that is 
                determined, in accordance with paragraph (2), to have 
                violated title IV of this Act shall be required by 
                order to pay a civil penalty in an amount not to exceed 
                $25,000 for each violation.
            (2) Agency orders.--Each agency described in section 101 
        may issue an order, including a final order, to enforce its 
        regulations issued pursuant to that section.
            (3) Judicial review.--A person adversely affected by a 
        final order issued pursuant to paragraph (2) may, within 30 
        days after the date the final order is issued, file a petition 
        in the Court of Appeals for the District of Columbia Circuit or 
        any other circuit in which the person resides or transacts 
        business.
            (4) Enforcement of orders.--If a person fails to comply 
        with a final order issued under paragraph (2) and--
                    (A) the time has elapsed for filing a petition for 
                judicial review under paragraph (3) and no petition has 
                been filed, or
                    (B) a court in an action for judicial review 
                brought under paragraph (3) has entered a final 
                judgment in favor of the agency,
        the Attorney General, at the request of such agency, shall file 
        a suit to seek compliance with the order in any appropriate 
        district court of the United States, plus interest at currently 
        prevailing rates calculated from the date of expiration of the 
        30-day period referred to in paragraph (3) or the date of such 
        final judgment, as the case may be. In any such suit, the 
        validity and appropriateness of the final order shall not be 
        subject to review.
    (b) Criminal.--Any person that violates any provision of title IV 
of this Act shall, in addition to or in lieu of any civil penalty which 
may be imposed under subsection (a) for such violation, be fined under 
title 18, United States Code, imprisoned for not more than five years, 
or both.

SEC. 502. SPECIFIC ENFORCEMENT.

    (a) Jurisdiction.--The district courts of the United States 
Government shall have jurisdiction over civil actions brought by the 
Attorney General to--
            (1) restrain any violation of title IV of this Act; and
            (2) compel the taking of any action required by or under 
        this Act or the Additional Protocol.
    (b) Civil Actions.--
            (1) In general.--A civil action described in subsection (a) 
        may be brought--
                    (A) in the case of a civil action described in 
                subsection (a)(1), in the United States district court 
                for the judicial district in which any act, omission, 
                or transaction constituting a violation of title IV 
                occurred or in which the defendant is found or 
                transacts business; or
                    (B) in the case of a civil action described in 
                subsection (a)(2), in the United States district court 
                for the judicial district in which the defendant is 
                found or transacts business.
            (2) Service of process.--In any such civil action, process 
        shall be served on a defendant wherever the defendant may 
        reside or may be found.

                    TITLE VI--AUTHORIZATION OF FUNDS

SEC. 601. AUTHORIZATION.

    There are authorized to be appropriated such sums as may be 
necessary to carry out the purposes of this Act.
                                 <all>