[Congressional Record Volume 149, Number 176 (Tuesday, December 9, 2003)]
[Senate]
[Pages S16124-S16126]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LUGAR:
  S. 1987. 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; to the Committee on Foreign Relations.
  Mr. LUGAR. Mr. President, at the request of the administration, I am 
pleased to introduce the Additional Protocol Implementation Act of 
2003. This important legislation is needed to implement the provisions 
of the Protocol to the Agreement of the International Atomic Energy 
Agency, IAEA, Regarding Safeguards in the United States.
  The United States signed the Additional Protocol in Vienna on June 
12, 1998. President Bush submitted the Additional Protocol to the 
Senate on May 9, 2002. The State Department sent the implementing 
legislation to us on November 19, 2003, and asked that it be considered 
in conjunction with the Senate's advice and consent on the Protocol. 
The adoption of this agreement is an important step in demonstrating 
U.S. leadership in the fight against the spread of nuclear weapons. The 
Additional Protocol will provide the United States and the IAEA with 
another tool as we attempt to secure broader inspection rights in non-
nuclear-weapon states that are parties to the Treaty on the 
Nonproliferation of Nuclear Weapons, NPT.
  When the Committee on Foreign Relations reported out the NPT in 1968, 
it noted that ``the treaty's fundamental purpose is to slow the spread 
of nuclear weapons by prohibiting the nuclear weapon states which are 
party to the treaty from transferring nuclear weapons to others, and by 
barring the non-nuclear weapon countries from receiving, manufacturing, 
or otherwise acquiring nuclear weapons.'' Since the Senate ratified the 
NPT, we have seen 188 states join the United States in approving the 
treaty. But recently we also have seen a disturbing increase in the 
global availability of nuclear materials and reprocessing and 
enrichment technology. To ensure that these materials and technologies 
are devoted only to peaceful purposes, the IAEA must have the power to 
conduct intrusive inspections at almost any location in a non-nuclear-
weapon state to verify state parties' commitments under the NPT.
  The world community has learned that existing safeguard arrangements 
in non-nuclear-weapon states do not provide the IAEA with a complete 
and accurate picture of possible nuclear weapons-related activities. It 
is critical that the IAEA have the ability to expand the scope of its 
activities in states that pose a potential proliferation threat. At 
this point, the only means at the IAEA's disposal, beyond existing 
safeguards arrangements, is the Model Additional Protocol.
  The United States, as a declared nuclear-weapon state party to the 
NPT, may exclude the application of IAEA safeguards on its nuclear 
activities. Under the negotiated Additional Protocol, the United States 
also has the right to exclude activities and sites of direct national 
security significance in accordance with its National Security 
exclusion. This provision is crucial to U.S. acceptance of the 
Additional Protocol and provides a basis for the protection of U.S. 
nuclear weapons-related activities, sites, and materials as a declared 
nuclear power.
  The Additional Protocol does not contain any new arms control or 
disarmament obligations for the United States. While there are 
increased rights granted to the IAEA for the conduct of inspections in 
the United States, the administration has assured the committee that 
the likelihood of an inspection occurring in the United States is very 
low. Nevertheless, should an inspection under the Additional Protocol 
be potentially harmful to U.S. national security interests, the United 
States has the right, through the National Security Exclusion, to 
prevent such an inspection.
  The Committee on Foreign Relations will hold hearings early next year 
to consider the Additional Protocol. I am confident the Committee will 
draft a resolution of ratification that will enjoy the support of the 
senate. Ratification of this treaty and passage of its implementing 
legislation would be an important demonstration of the U.S. commitment 
to vigorous and expansive authority for the IAEA in non-nuclear-weapon 
states.
  I am pleased to introduce this legislation today as a statement of 
the Committee's strong support for aggressive verification capabilities 
in the global fight against the spread of weapons of mass destruction. 
I look forward to working closely with my friend, Senator Hatch, 
Chairman of the Committee on the Judiciary, to construct legislation 
that protects U.S. national security interests, while strengthening the 
ability of the IAEA to discover illegal nuclear weapons activities.
  the package I send to the desk today contains a letter from the 
Department of State, the administration's implementing legislation, and 
a section-by-section analysis, all submitted by the administration.
  I ask unanimous consent that the referenced letter and analysis be 
printed in the Record.
  There being no objection, the additional material was ordered to be 
printed in the Record, as follows:
                                United States Department of State,
                                                   Washington, DC.
     Hon. Richard G. Lugar,
     Chairman, Committee on Foreign Relations, United States 
         Senate.
       Dear Mr. Chairman: On behalf of the President, I am pleased 
     to submit for consideration the Administration's recommended 
     text for legislation to implement the Protocol Additional to 
     the Agreement Between the United States of America and the 
     International Atomic Energy Agency for Application of 
     Safeguards in the United States of America (U.S.-IAEA 
     Additional Protocol). The U.S.-IAEA Additional Protocol, 
     signed in Vienna on June 12, 1998, is a bilateral treaty that 
     supplements and amends the Agency verification arrangements 
     under the existing Agreement Between the United States of 
     America and the International Atomic Energy Agency for the 
     Application of Safeguards in the United States of America of 
     November 18, 1977 (the ``Voluntary Offer''), which entered 
     into force on December 9, 1980.
       The U.S.-IAEA Additional Protocol contains a number of 
     provisions that require implementing legislation to give them 
     effect within the United States. These include:
       Declarations of U.S. civil nuclear activities and related 
     industry;
       Restrictions on disclosure of information; and
       International inspections of locations in the United 
     States.
       The President, in his letter of transmission dated May 9, 
     2002, stated that the U.S.-IAEA ``Additional Protocol is in 
     the best interests of the United States. Our acceptance of 
     this agreement will sustain our longstanding record of 
     voluntary acceptance of nuclear safeguards and greatly 
     strengthen our ability to promote universal adoption of the

[[Page S16125]]

     Model Protocol, a central goal of my nuclear nonproliferation 
     policy. Widespread acceptance of the Protocol will contribute 
     significantly to our nonproliferation objectives as well as 
     strengthen U.S., allied and international security.'' We urge 
     the Senate to give early and favorable consideration to the 
     Protocol and the recommended implementing legislation.
       The Office of Management and Budget advises that there is 
     no objection to the submission of this proposal and its 
     enactment, is in accord with the President's program.
       We hope this information and the enclosed recommended 
     legislation and sectional analysis are helpful. Please let us 
     know if we can be of further assistance.
           Sincerely,

                                                Paul V. Kelly,

                                              Assistant Secretary,
     Legislative Affairs.
                                  ____


Section-by-Section Analysis of the Proposed Additional Protocol to the 
       U.S.-IAEA Safeguards Agreement Implementation Act of 2003


                                overview

       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) contains a number of 
     provisions that require legislation to give them effect 
     within the United States. These include provisions on the 
     submission to the United States Government of civil nuclear 
     and nuclear-related information by entities identified in 
     Article 2 of the Additional Protocol, and on civil and 
     criminal penalties for failure of such entities to keep or 
     provide such information. The proposed legislation also sets 
     forth procedures for inspections, or ``complementary 
     access,'' by the IAEA at U.S. locations under the Additional 
     Protocol.
       The proposed Additional Protocol to the U.S.-IAEA 
     Safeguards Agreement Implementation Act (the Act) contains 
     five miscellaneous sections and six titles. The five 
     miscellaneous sections concern the short title of the Act, 
     the table of contents, Congressional findings, definitions, 
     and a severability clause. 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. Title II authorizes 
     complementary access at U.S. locations consistent with the 
     Act, and establishes the terms upon which such access may 
     take place. For example, it addresses the notice that must be 
     given to the owner or operator of the inspected location, and 
     the procedures to be followed for seeking access--including 
     obtaining an administrative search warrant where necessary. 
     Title III restricts disclosure of certain information 
     provided 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 Title V provides for criminal and civil penalties 
     for such violations. Finally, Title VI authorizes 
     appropriation of funds for the Agencies required to carry out 
     responsibilities under the Act.


                         miscellaneous sections

       The first part of the Act contains five miscellaneous 
     sections: the short title of the Act, the table of contents, 
     Congressional findings, definitions, and a severability 
     clause. The first two sections are standard provisions. The 
     third section contains seven Congressional findings, which 
     recognize the threat posed by nuclear proliferation, the 
     importance of the Nuclear Non-Proliferation Treaty (NPT), the 
     urgency of strengthening its safeguards system, and the need 
     to implement the U.S.-IAEA Additional Protocol as a means of 
     encouraging other NPT State Parties to accept stricter 
     verification measures. The fourth section provides 
     definitions of key terms as they are used in the Act. In many 
     instances, the same definitions appear in the Additional 
     Protocol, and are therefore cross-referenced. Finally, the 
     fifth section provides that, if any provision of the Act is 
     held invalid, the remainder of the Act shall remain in force. 
     The Administration 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--authorization

       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 
     Treaty obligation to provide the IAEA with a broad 
     declaration of its civil nuclear and nuclear-related 
     activities. While the Agencies most likely to issue or amend 
     such regulations are identified in Section 101(a) of the Act, 
     this list is not exclusive.


                     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 
     makes clear that the IAEA may not conduct complementary 
     access in the United States without the authorization, in 
     accordance with the Act, of the United States Government. It 
     further directs that certain U.S. agencies may not 
     participate in complementary access. These agencies, 
     including the Environmental Protection Agency and the 
     Occupational Safety and Health Administration, are excluded 
     because their employees may detect violations of regulatory 
     schemes wholly unrelated to the Additional Protocol. Section 
     201 further requires the number of U.S. representatives be 
     kept to a minimum.
       Section 202 addresses procedures for complementary access. 
     For example, 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 all 
     appropriate information provided by the IAEA concerning the 
     purpose of the access request, the basis for selection of the 
     location, the activities it intends to carry out, the time 
     and duration of the access, and the identities of inspectors. 
     In addition, 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 the general rule that IAEA 
     inspectors may conduct all activities specified under Article 
     6 of the Additional Protocol for the type of location being 
     inspected. However, there are several exceptions to this 
     rule. First, a warrant issued authorizing complementary 
     access at a location may restrict the activities that 
     inspectors may conduct. Second, as indicated in 202(d)(1), 
     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 IAEA access to activities with direct 
     national security significance or to location or information 
     associated with such activities, the United States may 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, 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. Third, Section 202(d)(2) lists a 
     series of items that are specifically excluded from IAEA 
     access. This third set of exceptions, which are mainly 
     directed at protecting commercial information, may not 
     however be enforced 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 grounds for such access: warrantless access, where the 
     Fourth Amendment of the U.S. Constitution does not require a 
     warrant; consent to the access by the owner/operator of the 
     location; or, where necessary, obtaining an administrative 
     search warrant. Section 203(a)(2) makes clear that the 
     legislation is intended to impose no warrant requirement 
     beyond that which is required by the Fourth Amendment. Where 
     such a warrant requirement exists, Section 203(a)(1) directs 
     the United States Government first to seek consent to access 
     from the location's owner or operator. The remainder of 
     Section 203 addresses the requirements for obtaining an 
     administrative search warrant, and what such a warrant should 
     contain. Section 203(b)(1) states that the United States 
     Government shall provide to the judge all appropriate 
     information it has received from the IAEA regarding its basis 
     for selecting a particular location for complementary access. 
     A ``judge of the United States'' is defined by the Act to 
     mean a judge or magistrate judge of a district court of the 
     United States. In addition, Section 203(b)(2) requires the 
     United States to submit to the judge a more detailed 
     affidavit showing, among other things, that the Additional 
     Protocol is in force in the United States, applicable 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 anticipated time and duration of the 
     inspection.
       Finally, the affidavit must show that the location to be 
     inspected was selected by the IAEA 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 developed by the 
     IAEA based upon specific neutral criteria. Selection based on 
     either of these approaches would meet U.S. Constitutional 
     requirements for issuance of a warrant. Section 203 directs 
     that a judge, upon receiving the affidavit, shall promptly 
     issue an administrative search warrant authorizing the 
     requested complementary access. The warrant is to specify the 
     same information as the affidavit, and shall, if known, also 
     include the identities of the IAEA complementary access

[[Page S16126]]

     team and accompanying U.S. representatives.


               title III--confidentiality of information

       Title III of the proposed implementing legislation 
     restricts the disclosure of information provided to the 
     United States Government, or to its contractor personnel, 
     pursuant to the Act or the Additional Protocol. For example, 
     Section 301(a) exempts from the Freedom of Information Act 
     (FOIA) disclosure information obtained by the United States 
     Government in implementing the provisions of the Additional 
     Protocol. Thus, information reported to the 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--recordkeeping

       Title IV of the proposed implementing legislation prohibits 
     the willful failure of any person to maintain records or 
     submit reports to the United States Government as required by 
     regulations issued under Section 101 of the Act. The 
     prohibitions of Title IV are necessary to implement the 
     Additional Protocol, as the United States is dependent on 
     such reporting to meet its Treaty obligations. A person is 
     defined by the Act very broadly to ensure that all possible 
     entities within the United States are covered.


                          title v--enforcement

       Title V of the proposed implementing legislation provides 
     for both civil and criminal penalties for failure to meet the 
     recordkeeping and reporting requirements of Title IV. 
     Violators shall be subject to imprisonment for not more than 
     five years, criminal fines, and civil penalties up to $25,000 
     per violation. While the Agency issuing the applicable 
     regulations is responsible for their enforcement, an entity 
     subject to civil penalty under this Title may seek judicial 
     review. Title V also provides United States district courts 
     with jurisdiction to specifically enforce Agency orders, 
     either by restraining or compelling action so as to avoid a 
     violation of Title IV.


                    title vi--authorization of funds

       Title VI of the proposed legislation authorizes the 
     appropriation of such sums as necessary to carry out the 
     purpose of the Act.
                                 ______