[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