[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2489 Placed on Calendar Senate (PCS)]







                                                       Calendar No. 385
109th CONGRESS
  2d Session
                                S. 2489

                          [Report No. 109-226]

 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, signed by the United States 
                           on June 12, 1998.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 3, 2006

   Mr. Lugar, from the Committee on Foreign Relations, reported the 
    following original bill; which was read twice and placed on the 
                                calendar

_______________________________________________________________________

                                 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, 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 Act may be cited as the ``U.S. Additional Protocol 
Implementation Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Additional protocol.--The term ``Additional Protocol'', 
        when used in the singular form, 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, 
        signed at Vienna June 12, 1998 (T. Doc. 107-7).
            (2) Appropriate congressional committees.--The term 
        ``appropriate congressional committees'' means the Committee on 
        Armed Services, the Committee on Foreign Relations, and the 
        Committee on Appropriations of the Senate and the Committee on 
        Armed Services, the Committee on International Relations, and 
        the Committee on Appropriations of the House of 
        Representatives.
            (3) Complementary access.--The term ``complementary 
        access'' means the exercise of the IAEA's access rights as set 
        forth in Articles 4 to 6 of the Additional Protocol.
            (4) Executive agency.--The term ``executive agency'' has 
        the meaning given such term in section 105 of title 5, United 
        States Code.
            (5) Facility.--The term ``facility'' has the meaning set 
        forth in Article 18i. of the Additional Protocol.
            (6) IAEA.--The term ``IAEA'' means the International Atomic 
        Energy Agency.
            (7) Judge of the united states.--The term ``judge of the 
        United States'' means a United States district judge, or a 
        United States magistrate judge appointed under the authority of 
        chapter 43 of title 28, United States Code.
            (8) Location.--The term ``location'' means any geographic 
        point or area declared or identified by the United States or 
        specified by the International Atomic Energy Agency.
            (9) 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 
        (21 UST 483).
            (10) Nuclear-weapon state party and non-nuclear-weapon 
        state party.--The terms ``nuclear-weapon State Party'' and 
        ``non-nuclear-weapon State Party'' have the meanings given such 
        terms in the Nuclear Non-Proliferation Treaty.
            (11) 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.
            (12) Site.--The term ``site'' has the meaning set forth in 
        Article 18b. of the Additional Protocol.
            (13) United states.--The term ``United States'', when used 
        as a geographic reference, 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) the territorial sea and the overlying airspace;
                    (B) any civil aircraft of the United States or 
                public aircraft, as such terms are defined in 
                paragraphs (17) and (41), respectively, of section 
                40102(a) 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 Maritime Drug Law 
                Enforcement Act (46 U.S.C. App. 1903(b)).
            (14) Wide-area environmental sampling.--The term ``wide-
        area environmental sampling'' has the meaning set forth in 
        Article 18g. of the Additional Protocol.

SEC. 3. 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. AUTHORITY.

    (a) In General.--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 executive agency or 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 or amend and enforce 
regulations in order to implement this Act and the provisions of the 
Additional Protocol.
    (b) Included Authority.--For any executive agency designated under 
subsection (a) that does not currently possess the authority to conduct 
site vulnerability assessments and related activities, the authority 
provided in subsection (a) includes such authority.
    (c) Exception.--The authority described in subsection (b) does not 
supersede or otherwise modify any existing authority of any Federal 
department or agency already having such authority.

                     TITLE II--COMPLEMENTARY ACCESS

SEC. 201. REQUIREMENT FOR 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) In general.--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 representatives.--
                    (A) Restrictions.--In the event of complementary 
                access to a privately owned or operated location, no 
                employee of the Environmental Protection Agency or of 
                the Mine Safety and Health Administration or the 
                Occupational Safety and Health Administration of the 
                Department of Labor may participate in the access.
                    (B) Number.--The number of designated United States 
                representatives accompanying IAEA inspectors 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 title.
    (b) Notice.--
            (1) In general.--Complementary access referred to in 
        subsection (a) may occur only upon the 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 under paragraph (1) 
        shall be submitted to such owner, operator, occupant, or agent 
        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 
        such owner, operator, occupant, or agent.
            (3) Content of notice.--
                    (A) In general.--The notice required by paragraph 
                (1) shall specify--
                            (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 is expected to 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 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 entry in 
connection with 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 under 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 (other than production 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.--In carrying out 
their activities, members of the IAEA complementary access team and 
representatives 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 COMPLEMENTARY ACCESS.

    (a) In General.--
            (1) Procedure.--
                    (A) Consent.--Except as provided in paragraph (2), 
                an appropriate official of the United States Government 
                shall seek or have the consent of the owner, operator, 
                occupant, or agent in charge of a location prior to 
                entering that location in connection with complementary 
                access pursuant to sections 201 and 202. The owner, 
                operator, occupant, or agent in charge of the location 
                may withhold consent for any reason or no reason.
                    (B) Administrative search warrant.--In the absence 
                of consent, the United States Government may seek an 
                administrative search warrant from a judge of the 
                United States under 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) Expedited access.--For purposes of obtaining access to 
        a location pursuant to Article 4b.(ii) of the Additional 
        Protocol in order to satisfy United States obligations under 
        the Additional Protocol when notice of two hours or less is 
        required, the United States Government may gain entry to such 
        location in connection with complementary access, to the extent 
        such access is consistent with the Fourth Amendment to the 
        United States Constitution, without obtaining either a warrant 
        or consent.
    (b) Administrative Search Warrants for Complementary Access.--
            (1) Obtaining administrative search warrants.--For 
        complementary access conducted in 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 
        such judge all appropriate information regarding the basis for 
        the selection of the facility, site, or other location to which 
        complementary access is sought.
            (2) Content of affidavits for administrative search 
        warrants.--A 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--
                    (A) stating that the Additional Protocol is in 
                force;
                    (B) stating that the designated facility, site, or 
                other location is subject to complementary access under 
                the Additional Protocol;
                    (C) stating that the purpose of the 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) stating that the requested complementary access 
                is in accordance with Article 4 of the Additional 
                Protocol;
                    (E) containing assurances that the scope of the 
                IAEA's complementary access, as well as what it may 
                collect, shall be limited to the access provided for in 
                Article 6 of the Additional Protocol;
                    (F) listing the items, documents, and areas to be 
                searched and seized;
                    (G) stating 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) stating that the location to which entry in 
                connection with 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 this 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, each warrant shall contain 
        the identities of the representatives of the IAEA on the 
        complementary access team and the identities of the 
        representatives or designees of the United States Government 
        required to display identifying credentials under section 
        202(c).

SEC. 204. PROHIBITED ACTS RELATING TO COMPLEMENTARY ACCESS.

    It shall be 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.

               TITLE III--CONFIDENTIALITY OF INFORMATION

SEC. 301. 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 of title 5, United States 
Code.

                         TITLE IV--ENFORCEMENT

SEC. 401. RECORDKEEPING VIOLATIONS.

    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.

SEC. 402. PENALTIES.

    (a) Civil.--
            (1) Penalty amounts.--Any person that is determined, in 
        accordance with paragraph (2), to have violated section 204 or 
        section 401 shall be required by order to pay a civil penalty 
        in an amount not to exceed $25,000 for each violation. For the 
        purposes of this paragraph, each day during which a violation 
        of section 204 continues shall constitute a separate violation 
        of that section.
            (2) Notice and hearing.--
                    (A) In general.--Before imposing a penalty against 
                a person under paragraph (1), the head of an executive 
                agency designated under section 101(a) shall provide 
                the person with notice of the order. If, within 15 days 
                after receiving the notice, the person requests a 
                hearing, the head of the designated executive agency 
                shall initiate a hearing on the violation.
                    (B) Conduct of hearing.--Any hearing so requested 
                shall be conducted before an administrative judge. The 
                hearing shall be conducted in accordance with the 
                requirements of section 554 of title 5, United States 
                Code. If no hearing is so requested, the order imposed 
                by the head of the designated agency shall constitute a 
                final agency action.
                    (C) Issuance of orders.--If the administrative 
                judge determines, upon the preponderance of the 
                evidence received, that a person named in the complaint 
                has violated section 204 or section 401, the 
                administrative judge shall state his findings of fact 
                and conclusions of law, and issue and serve on such 
                person an order described in paragraph (1).
                    (D) Factors for determination of penalty amounts.--
                In determining the amount of any civil penalty, the 
                administrative judge or the head of the designated 
                agency shall take into account the nature, 
                circumstances, extent, and gravity of the violation or 
                violations and, with respect to the violator, the 
                ability to pay, effect on ability to continue to do 
                business, any history of such violations, the degree of 
                culpability, the existence of an internal compliance 
                program, and such other matters as justice may require.
                    (E) Content of notice.--For the purposes of this 
                paragraph, notice shall be in writing and shall be 
                verifiably served upon the person or persons subject to 
                an order described in paragraph (1). In addition, the 
                notice shall--
                            (i) set forth the time, date, and specific 
                        nature of the alleged violation or violations; 
                        and
                            (ii) specify the administrative and 
                        judicial remedies available to the person or 
                        persons subject to the order, including the 
                        availability of a hearing and subsequent 
                        appeal.
            (3) Administrative appellate review.--The decision and 
        order of an administrative judge shall be the recommended 
        decision and order and shall be referred to the head of the 
        designated executive agency for final decision and order. If, 
        within 60 days, the head of the designated executive agency 
        does not modify or vacate the decision and order, it shall 
        become a final agency action under this subsection.
            (4) Judicial review.--A person adversely affected by a 
        final order 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 in the Court of Appeals for the 
        district in which the violation occurred.
            (5) Enforcement of final orders.--
                    (A) In general.--If a person fails to comply with a 
                final order issued against such person under this 
                subsection and--
                            (i) the person has not filed a petition for 
                        judicial review of the order in accordance with 
                        paragraph (4), or
                            (ii) a court in an action brought under 
                        paragraph (4) has entered a final judgment in 
                        favor of the designated executive agency,
                the head of the designated executive agency shall 
                commence a civil action to seek compliance with the 
                final order in any appropriate district court of the 
                United States.
                    (B) No review.--In any such civil action, the 
                validity and appropriateness of the final order shall 
                not be subject to review.
                    (C) Interest.--Payment of penalties assessed in a 
                final order under this section shall include interest 
                at currently prevailing rates calculated from the date 
                of expiration of the 60-day period referred to in 
                paragraph (3) or the date of such final order, as the 
                case may be.
    (b) Criminal.--Any person who violates section 204 or section 401 
may, 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. 403. SPECIFIC ENFORCEMENT.

    (a) Jurisdiction.--The district courts of the United States shall 
have jurisdiction over civil actions brought by the head of an 
executive agency designated under section 101(a)--
            (1) to restrain any conduct in violation of section 204 or 
        section 401; or
            (2) to 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 
                paragraph (1) of such subsection, in the United States 
                district court for the judicial district in which any 
                act, omission, or transaction constituting a violation 
                of section 204 or section 401 occurred or in which the 
                defendant is found or transacts business; or
                    (B) in the case of a civil action described in 
                paragraph (2) of such subsection, 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 V--ENVIRONMENTAL SAMPLING

SEC. 501. NOTIFICATION TO CONGRESS OF IAEA BOARD APPROVAL OF WIDE-AREA 
              ENVIRONMENTAL SAMPLING.

    (a) In General.--Not later than 30 days after the date on which the 
Board of Governors of the IAEA approves wide-area environmental 
sampling for use as a safeguards verification tool, the President shall 
notify the appropriate congressional committees.
    (b) Content.--The notification under subsection (a) shall contain--
            (1) a description of the specific methods and sampling 
        techniques approved by the Board of Governors that are to be 
        employed for purposes of wide-area sampling; and
            (2) a statement as to whether or not such sampling may be 
        conducted in the United States under the Additional Protocol.

SEC. 502. APPLICATION OF NATIONAL SECURITY EXCLUSION TO WIDE-AREA 
              ENVIRONMENTAL SAMPLING.

    In accordance with Article 1(b) of the Additional Protocol, the 
United States shall not permit any wide-area environmental sampling 
proposed by the IAEA to be conducted at a specified location in the 
United States under Article 9 of the Additional Protocol unless the 
President has determined and reported to the appropriate congressional 
committees that--
            (1) the proposed use of wide-area environmental sampling is 
        necessary to increase the capability of the IAEA to detect 
        undeclared nuclear activities in the territory of a non-
        nuclear-weapon State Party;
            (2) the proposed use of wide-area environmental sampling 
        will not result in access by the IAEA to locations, activities, 
        or information of direct national security significance; and
            (3) the United States--
                    (A) has been provided sufficient opportunity for 
                consultation with the IAEA if the IAEA has requested 
                complementary access involving wide-area environmental 
                sampling; or
                    (B) has requested under Article 8 of the Additional 
                Protocol that the IAEA engage in complementary access 
                in the United States that involves the use of wide-area 
                environmental sampling.

SEC. 503. APPLICATION OF NATIONAL SECURITY EXCLUSION TO LOCATION-
              SPECIFIC ENVIRONMENTAL SAMPLING.

    In accordance with Article 1(b) of the Additional Protocol, the 
United States shall not permit any location-specific environmental 
sampling in the United States under Article 5 of the Additional 
Protocol unless the President has determined and reported to the 
appropriate congressional committees that--
            (1) the proposed use of location-specific environmental 
        sampling will not result in access by the IAEA to locations, 
        activities, or information of direct national security 
        significance; and
            (2) with respect to the proposed use of environmental 
        sampling, the United States--
                    (A) has been provided sufficient opportunity for 
                consultation with the IAEA if the IAEA has requested 
                complementary access involving location-specific 
                environmental sampling; or
                    (B) has requested under Article 8 of the Additional 
                Protocol that the IAEA engage in complementary access 
                in the United States that involves the use of location-
                specific environmental sampling.

               TITLE VI--AUTHORIZATION OF APPROPRIATIONS

SEC. 601. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as may be 
necessary to carry out this Act.
                                                       Calendar No. 385

109th CONGRESS

  2d Session

                                S. 2489

                          [Report No. 109-226]

_______________________________________________________________________

                                 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, signed by the United States 
                           on June 12, 1998.

_______________________________________________________________________

                             April 3, 2006

                 Read twice and placed on the calendar