[Senate Executive Report 108-12]
[From the U.S. Government Publishing Office]



108th Congress                                               Exec. Rpt.
                                 SENATE
 2d Session                                                      108-12

======================================================================



 
THE PROTOCOL TO THE AGREEMENT OF THE INTERNATIONAL ATOMIC ENERGY AGENCY 
     REGARDING SAFEGUARDS IN THE UNITED STATES (TREATY DOC. 107-7)

                                _______
                                

                 March 26, 2004.--Ordered to be printed

                                _______
                                

          Mr. Lugar, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                    [To accompany Treaty Doc. 107-7]

    The Committee on Foreign Relations, to which was referred 
the 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'' or ``U.S. Additional 
Protocol'') (Treaty Doc. 107-7), having considered the same, 
reports favorably thereon subject to the two conditions and 
eight understandings set forth in this report and the 
accompanying resolution of ratification and recommends that the 
Senate give its advice and consent to ratification thereof.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................4
III. Summary of the Protocol..........................................6
 IV. Article-by-Article Analysis......................................7
  V. Committee Action................................................16
 VI. Views of the Armed Services Committee...........................35
VII. CBO Cost Estimate...............................................40
VIII.Resolution of Ratification......................................51

 IX. Hearing and Questions for the Record (Contains Administration and 
     Other Experts' Views)...........................................55

                               I. Purpose

    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 supplements and amends the verification arrangements 
set forth in the existing Agreement Between the United States 
of America and the IAEA for the Application of Safeguards in 
the United States of America of November 18, 1977 (the 
``Voluntary Offer''), which entered into force, following 
Senate advice and consent, on December 9, 1980. The Voluntary 
Offer was, in turn, an outgrowth of the Treaty on the Non-
Proliferation of Nuclear Weapons (the ``Nuclear 
Nonproliferation Treaty'' or ``NPT''), which mandated 
safeguards on each country's declared peaceful nuclear energy 
facilities.
    When the Senate Foreign Relations Committee reported the 
NPT resolution of ratification to the Senate in 1968, it noted 
that, ``given [the] burgeoning capability of so many nations to 
build nuclear weapons...U.S. efforts to curtail the spread of 
nuclear weapons and skills have become increasingly more 
serious and urgent.'' 1 One of the bargains that was 
struck in the NPT to gain the support of many states, 
especially those without nuclear weapons, was that in forgoing 
nuclear weapons, non-nuclear-weapon states (NNWS) would be 
guaranteed access to the peaceful uses of atomic energy. Thus, 
Article IV of the NPT states:
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    \1\ U.S. Congress, Senate Committee on Foreign Relations, September 
26, 1968, Treaty on the Non-proliferation of Nuclear Weapons, 90th 
Congress, 2d Session, Executive Report No. 9, p. 2. Hereinafter, 
``Committee Report.''

          Nothing in this Treaty shall be interpreted as 
        affecting the inalienable right of all the Parties to 
        the Treaty to develop research, production and use of 
        nuclear energy for peaceful purposes without 
        discrimination and in conformity with Articles I and II 
        of this Treaty. 2
---------------------------------------------------------------------------
    \2\ ``Treaty on the Non-proliferation of Nuclear Weapons,'' the 
International Atomic Energy Agency, INFCIRC/140, April 22, 1970, 
available at http://www.iaea.org/Publications/Documents/Infcircs/
Others/infcirc140.pdf.

    The Foreign Relations Committee was mindful of the likely 
limitations of safeguards agreements at the time it reported 
---------------------------------------------------------------------------
the NPT to the full Senate. The Committee noted:

          [T]he implementation of the treaty raises 
        uncertainties. The reliability and thereby the 
        credibility of international safeguards systems is 
        still to be determined. No completely satisfactory 
        answer was given to the Committee on the effectiveness 
        of the safeguards systems envisioned under the the 
        treaty. . . . But [the Committee] is equally convinced 
        that when the possible problems in reaching 
        satisfactory safeguards agreements are carefully 
        weighed against the potential for a worldwide mandatory 
        safeguards system, the comparison argues strongly for 
        the present language of the treaty. 3
---------------------------------------------------------------------------
    \3\ Committee Report, p. 14.

    The NPT and the IAEA's existing safeguards agreements 
sufficed to forestall nuclear weapons programs in the world's 
advanced industrial states, several of which were weighing the 
nuclear option 40 years ago. This regime has failed to keep 
pace, however, with the increase in the global availability of 
nuclear weapons technology, especially the technology and 
equipment for uranium enrichment and spent nuclear reactor fuel 
reprocessing to produce the fissile material for such weapons. 
Now the road to nuclear weapons can be traveled by determined 
countries with only a minimal industrial base. While the number 
of recognized nuclear-weapon states (NWS) has not dramatically 
increased over the years, the dangers of proliferation have 
become all too real and apparent.
    Many are now questioning the grand bargain between non-
proliferation and peaceful uses of nuclear energy contained 
within the NPT itself. As Dr. Ronald F. Lehman II, former 
director of the U.S. Arms Control and Disarmament Agency, noted 
in a statement submitted to the Committee, ``Today, advocates 
of peaceful applications of nuclear technology increasingly 
understand that they must address concerns about non-
proliferation and vulnerability to terrorist exploitation or 
attacks.'' 4 The inherent dual-use nature of the 
complete nuclear fuel cycle, combined with its wide 
availability in peaceful civil power applications, uniquely 
challenges the world to find ways to stop its contribution to 
nuclear weapons. The only international body, at this time, 
capable of doing so is the IAEA, and one of the tools with 
which to attempt to fix this problem is the Additional 
Protocol.
---------------------------------------------------------------------------
    \4\ Dr. Ronald F. Lehman, ``Written Statement on the U.S.-IAEA 
Additional Protocol and its Strategic Content, Submitted to the U.S. 
Senate Foreign Relations Committee,'' see Part IX of this Report, p. 
98. (Hereinafter, ``Part IX.'')
---------------------------------------------------------------------------
    Ratification and appropriate implementation by non-nuclear-
weapon states of the Additional Protocol, based on a Model 
Additional Protocol issued by the IAEA, could reduce the risk 
of nuclear proliferation and improve international confidence 
that non-nuclear-weapon states party to the NPT are not 
misusing nuclear materials to develop nuclear weapons. The 
Model Additional Protocol was designed to improve the ability 
of the IAEA to detect clandestine nuclear weapons programs in 
non-nuclear-weapon states party to the NPT by providing the 
IAEA with increased information about and expanded access to 
nuclear fuel cycle activities and sites.
    The United States, although under no obligation to do so as 
a nuclear-weapon state under Article I of the NPT, negotiated 
and signed an Additional Protocol with the IAEA, which 
incorporates the full text of the Protocol. This underscores 
U.S. commitment to combating the potential spread of nuclear 
weapons, and demonstrates that adherence to the Model 
Additional Protocol by other countries will not place them at a 
commercial disadvantage. The U.S. Additional Protocol is 
identical to the Model Additional Protocol which non-nuclear-
weapon states are being asked to accept, with the only 
exceptions being that the U.S. Additional Protocol does not 
obligate the United States to apply the Additional Protocol to 
activities or locations of direct national security 
significance to the United States and that it has a right to 
use managed access to protect information of direct national 
security significance should inspections be carried out in the 
United States.
    Under the current safeguards regime, the IAEA already has 
the right to inspect certain facilities that the United States 
has declared to it. In practice, however, ever since 1993, 
``[a]ll of these inspections were conducted at the request of 
the United States in order to safeguard fissile material 
declared excess to our defense needs.'' 5 The 
Additional Protocol could result in additional inspections in 
the United States, and the United States must prepare for that 
possibility and ensure protections for itself if the IAEA were 
to conduct such inspections; but the IAEA fully understands 
that the United States maintains the right to engage in nuclear 
weapons activities and that there is little, therefore, for the 
IAEA to discover here.
---------------------------------------------------------------------------
    \5\ Answer to Committee Question for the Record, Part IX, p. 111.
---------------------------------------------------------------------------
    The Committee finds that it is in the interest of the 
United States to continue to demonstrate leadership in this 
area through ratification and appropriate implementation of the 
U.S. Additional Protocol and to that end has reported favorably 
its resolution of advice and consent and this report to 
accompany it.

                             II. Background

    The Additional Protocol between the United States and the 
IAEA is the latest of a series of safeguards regimes intended 
to stem nuclear proliferation, while allowing all countries to 
reap the benefits of nuclear energy. Originally, safeguards 
applied only to nuclear facilities that received assistance 
from the IAEA. Article II of the IAEA's statute states that one 
of its fundamental objectives is to ``ensure, so far as it is 
able, that all applications of the atom in a non-nuclear-weapon 
state, including the assistance provided by it . . . is not 
used in such a way as to further any military purpose.'' 
6
---------------------------------------------------------------------------
    \6\ Statute of the International Atomic Energy Agency, as last 
amended on December 28, 1989, available at http://www.iaea.org/About/
statute_text.html.
---------------------------------------------------------------------------
    With the entry into force of the NPT in 1970, IAEA 
safeguards were expanded to become ``comprehensive'' safeguards 
for all of a country's declared civil nuclear facilities, and 
then were formalized by ``safeguards agreements'' between each 
country and the IAEA. A total of 188 states have approved the 
NPT and 145 (including three states that are not party to the 
NPT) have safeguards agreements, some of them comprehensive, 
some of them not, with the IAEA.
    The United States' Voluntary Offer to accept IAEA 
comprehensive safeguards entered into force in 1980, following 
Senate advice and consent to ratification. The NPT requires 
non-nuclear-weapon state parties to accept IAEA safeguards on 
all nuclear material in all of their peaceful nuclear 
activities. The United States, as a nuclear-weapon state party 
to the NPT (along with Russia, China, the United Kingdom and 
France), is under no legal obligation to accept such 
safeguards. President Lyndon Johnson declared in 1967, however, 
that the United States would accept the same obligations that 
it asked others to accept, with the proviso that it would not 
provide any information or access relating to its nuclear 
weapons programs. By submitting itself to the same safeguards 
on all of its civil nuclear facilities that non-nuclear-weapon 
state parties are subject to, the United States intended to 
demonstrate that adherence to the NPT did not place other 
countries at a commercial disadvantage, either because of 
increased costs associated with safeguards or because of the 
risk of the compromise of proprietary information. This offer 
was critical to gaining the acceptance of the NPT by countries 
such as Germany and Japan.
    At the end of the Persian Gulf War, the world learned about 
the extent of Iraq's clandestine pursuit of an advanced program 
to develop nuclear weapons, some of which had been conducted in 
close proximity to declared facilities inspected by the IAEA. 
The international community recognized that the IAEA's 
international inspection system needed to be strengthened in 
order to increase its capability to detect secret nuclear 
programs. After four years of work by the Secretariat of the 
IAEA, an IAEA Committee agreed on a Model Additional Protocol 
(the ``Model Protocol'') for strengthening nuclear safeguards. 
The Model Protocol was approved by the IAEA's Board of 
Governors in 1997. The Model Protocol was designed to amend 
existing safeguards agreements to strengthen such safeguards by 
requiring non-nuclear-weapon states to provide, inter alia, 
broader declarations to the IAEA about their nuclear programs 
and nuclear-related activities, and by expanding the access 
rights of the IAEA. The new safeguards measures become 
effective in each state when it brings its Additional Protocol 
into force.
    During the negotiations of the Model Protocol, many non-
nuclear-weapon state parties to the NPT urged the United 
States, as the strongest proponent of the NPT, to accept on a 
voluntary basis the provisions of the Model Protocol. The 
Department of State, the former Arms Control and Disarmament 
Agency, the Department of Defense, the Department of Energy, 
and the Nuclear Regulatory Commission, with the advice and 
support of the Central Intelligence Agency, were primarily 
responsible for the negotiation of the U.S. Additional 
Protocol. Following the example of the Voluntary Offer, the 
United States stated during the negotiations that it would 
accept the provisions of the Model Protocol, subject to a 
national security exclusion (NSE) and provisions allowing for 
managed access during IAEA inspections. An illustrative list of 
measures for managed access was provided in a separate 
Subsidiary Arrangement that is to enter into force upon entry 
into force of the Additional Protocol.
    The success in achieving a strong Model Protocol was 
critically dependent on voluntary acceptance of Model Protocol 
measures by the United States. The signature of the U.S. 
Additional Protocol was a significant factor in the early 
decision by many non-nuclear-weapon states to accept the 
protocol. As of March 26, 2004, the Additional Protocol to IAEA 
safeguards agreements of 86 states had been approved by the 
Board of Governors, 81 states had signed their approved 
Additional Protocols, and 39 contracting states have had their 
Additional Protocols enter into force. 7 The U.S. 
Additional Protocol and its Subsidiary Arrangement were 
approved by the Board of Governors on June 11, 1998. The U.S. 
Additional Protocol and Subsidiary Arrangement were signed by 
representatives of the IAEA and the United States on June 12, 
1998.
---------------------------------------------------------------------------
    \7\ ``Safeguards and Verification, Strengthened Safeguards System: 
Status of Additional Protocols,'' the International Atomic Energy 
Agency, available at http://www.iaea.org/OurWork/SV/Safeguards/
sg_protocol.html.
---------------------------------------------------------------------------
    The Additional Protocol was submitted by President Bush to 
the United States Senate for its advice and consent to 
ratification on May 9, 2002, and was subsequently referred to 
the Committee on Foreign Relations.
    The responsibility for preparing for the entry into force 
of the Additional Protocol has been undertaken by an 
interagency group led by the National Security Council staff 
and comprised of representatives of the Department of State, 
the Department of Defense, the Department of Justice, the 
Department of Commerce, the Department of Energy, the Nuclear 
Regulatory Commission, and the Central Intelligence Agency. 
This group has addressed not only the Senate's consideration of 
U.S. ratification, but also the necessary implementing 
legislation (a recommended text for which was submitted to the 
Senate on November 21, 2003, and introduced, at the request of 
the Administration, by Chairman Lugar as S. 1987 on December 9, 
2003), agency regulations, interagency procedures and guidance, 
preparation at affected locations with national defense 
programs, and outreach to other locations that may be affected 
by the reporting or IAEA access provisions of the Additional 
Protocol.

                      III. Summary of the Protocol

    The U.S. Additional Protocol is based upon the IAEA Model 
Additional Protocol. Within 180 days of the entry into force of 
an Additional Protocol, under Article 3, a state party must 
provide to the Agency a declaration containing information 
about its nuclear and nuclear-related activities. This includes 
expanded information about its holdings of uranium and thorium 
ores and ore concentrates and of other plutonium and uranium 
materials not currently subject to Agency safeguards, general 
information about its manufacturing of equipment for enriching 
uranium or producing plutonium, general information about its 
nuclear fuel cycle-related research and development activities 
not involving nuclear material, and its import and export of 
nuclear material and equipment. Such broad-based information 
makes it substantially more difficult for a state planning a 
clandestine nuclear-weapon program to conceal the early stages 
of that program and provides the IAEA with a critical reference 
base for comparison with information that would otherwise not 
be available to it, including information from other member 
states.
    The United States, as a nuclear-weapon state, has already 
indicated to the IAEA that certain nuclear material, sites and 
activities are outside the scope of the U.S. Additional 
Protocol and will therefore not be declared.
    The Additional Protocol provides the IAEA with certain 
rights of access to declared locations and also to other 
undeclared locations to investigate the possibility of 
undeclared activities. The resulting increased risk of early 
detection is intended to deter non-nuclear-weapon states from 
undertaking a clandestine nuclear weapons program. With 
increased transparency, moreover, the IAEA should be able to 
provide greater assurance of both the absence of diversion of 
declared nuclear material and the absence of undeclared nuclear 
material and activities in those states.
    The overall design of the Additional Protocol was shaped by 
the interest of states in establishing an appropriate balance 
between improving the effectiveness of the safeguards system 
and the need to avoid undue interference with legitimate 
nuclear or nuclear-related activities. The declaration 
requirements of the Additional Protocol are of a general 
character. The IAEA is precluded from mechanistically or 
systematically verifying the declarations. The Additional 
Protocol defines the activities the IAEA may carry out at 
locations of different types; provides for managed access to 
protect various classes of sensitive information; and provides 
for the negotiation of subsidiary arrangements as needed to 
further define how Protocol measures shall be applied, 
including at particular locations. The Additional Protocol also 
requires the IAEA to maintain a stringent regime to ensure 
effective protection against disclosure of confidential 
information that the IAEA receives in reports or through 
inspections.
    Because the United States is an accepted nuclear-weapon 
state under the NPT, the U.S. Additional Protocol includes two 
provisions not contained in the Model Additional Protocol. The 
national security exclusion provision (or NSE) is intended to 
exclude the application of the Additional Protocol where the 
United States decides that its application would result in IAEA 
access to ``activities with direct national security 
significance to the United States or to locations or 
information associated with such activities'' (Article 1.b). 
The Managed Access provision permits the United States to 
manage access by the IAEA to ``activities with direct national 
security significance to the United States or to locations or 
information associated with such activities'' (Article 1.c). 
This supplements the managed access rights of all countries 
that sign Additional Protocols, to ``prevent the dissemination 
of proliferation sensitive information, to meet safety or 
physical protection requirements, or to protect proprietary or 
commercially sensitive information'' (Article 7). An 
illustrative list of measures permitted to be taken by the 
United States during managed access under Article 1 is 
contained in a Subsidiary Agreement to the Additional Protocol 
that is to enter into force when the Additional Protocol enters 
into force. The United States has conveyed to the IAEA its 
intent to make full and repeated use of these provisions in 
order to protect information, locations, and activities of 
direct national security significance to the United States.

                    IV. Article-by-Article Analysis

    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 consists of the main text of the protocol along with 
two annexes, which are an integral part of the Additional 
Protocol. It is based on the Model Additional Protocol, with 
certain additions, most notably the provision that allows the 
United States to exclude application of the Additional Protocol 
in cases where the United States decides it would result in 
access by the International Atomic Energy Agency (the ``IAEA'') 
to activities with direct national security significance to the 
United States or to locations or information associated with 
such activities. This provision is the ``National Security 
Exclusion''. executive branch agencies will exercise their 
responsibilities to implement the Additional Protocol subject 
in all respects to the President's authority as chief executive 
and consistent with his foreign affairs power.

                           TITLE AND PREAMBLE

    The Title of the Additional Protocol is the ``Protocol 
Additional to the Agreement between the United States of 
America and the International Atomic Energy IAEA for the 
Application of Safeguards in the United States of America''. 
The Additional Protocol is a bilateral treaty that will 
supplement and amend the IAEA verification arrangements set 
forth in 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 (the 
``Voluntary Offer''), which was signed at Vienna on November 
18, 1977, and entered into force on December 9, 1980.
    The Preamble to the Additional Protocol serves as an 
introduction and sets forth the intention of the United States 
and the IAEA in broad terms. The first paragraph of the 
Preamble notes that the United States and the IAEA are already 
parties to the Voluntary Offer. The following paragraphs of the 
preamble set forth the Parties' considerations upon entering 
into the Additional Protocol. These paragraphs first recognize 
the desire of the international community to further enhance 
nuclear non-proliferation by strengthening the IAEA's 
safeguards system. They also reiterate certain provisions in 
the Voluntary Offer, inter alia, that the IAEA must, in the 
implementation of safeguards, take into account the need to 
avoid hampering the economic and technological development of 
the United States or international cooperation in the field of 
peaceful nuclear activities; respect health, safety, physical 
protection and other security provisions in force and the 
rights of individuals; and take every precaution to protect 
commercial, technological, and industrial secrets as well as 
other confidential information. Furthermore, they note that, 
consistent with the objective to strengthen the effectiveness 
and improve the efficiency of safeguards, the frequency and 
intensity of activities described in the Additional Protocol 
will be kept to a minimum.

    ARTICLE 1--RELATIONSHIP BETWEEN THE ADDITIONAL PROTOCOL AND THE 
 VOLUNTARY OFFER, U.S. NATIONAL SECURITY EXCLUSION, AND MANAGED ACCESS

    Article 1.a establishes the relationship between the 
Voluntary Offer and the Additional Protocol. It provides that 
the provisions of the Voluntary Offer will apply to the 
Additional Protocol to the extent relevant to and compatible 
with the provisions of the Additional Protocol. Where there is 
a conflict between the two agreements, the provisions of the 
Additional Protocol are to apply. The principal differences 
between the Voluntary Offer and the Additional Protocol include 
the broader declaration requirements called for and the 
expanded access permitted in the Additional Protocol. There are 
also improved procedures for designating IAEA inspectors, 
issuing their visas, and protecting safeguards information by 
the IAEA. These procedures are discussed below in the sections 
describing Articles 11, 12, and 15. In such areas, the 
Additional Protocol provisions will govern. As a practical 
matter, the United States has been implementing procedures 
similar to those in the Additional Protocol for designating 
inspectors and issuing their visas on a voluntary basis for 
several years.
    Under Article 1.b of the Additional Protocol, the United 
States has the right to exclude the application of the 
Additional Protocol where the United States decides that its 
application would result in access by the IAEA to activities 
with direct national security significance to the United States 
or to locations or information associated with such activities. 
The United States has the sole discretion to determine whether 
an activity implicates information of direct national security 
significance and therefore whether and how to invoke the 
National Security Exclusion. The United States will have 
undeclared nuclear material and activities outside the scope of 
the Additional Protocol and the Voluntary Offer, including 
certain activities at locations that are part of the U.S. civil 
nuclear program, consistent with its status as a nuclear-weapon 
state. The IAEA knows and accepts that this will be the case.
    In addition, under Article 1.c, the United States has the 
right to use managed access in connection with activities with 
direct national security significance to the United States or 
in connection with locations or information associated with 
such activities. This right is not available to non-nuclear-
weapon states. Consistent with the President's authority, use 
of the National Security Exclusion will be guided by principles 
developed for its application.
    Information of direct national security significance will 
be protected in all aspects of implementation of the Additional 
Protocol through invoking the National Security Exclusion or 
through the implementation of managed access. The National 
Security Exclusion is applicable to all of the following 
provisions and will exempt the United States from any of the 
requirements noted when it is invoked.
    The United States will make full use of the managed access 
and National Security Exclusion provisions of Article 1 in 
order to protect activities of direct national security 
significance to the United States or locations or information 
associated with such activities. Additionally, decisions 
concerning the use of the National Security Exclusion and 
managed access to protect national security information will be 
made in accordance with established implementing procedures 
solely by the affected cognizant Department.

                  ARTICLE 2--PROVISION OF INFORMATION

    Article 2 sets forth information that the United States is 
to provide to the IAEA. The United States must provide the 
following declarations specified in Article 2.a: information 
regarding nuclear fuel cycle-related research and development 
activities not involving nuclear material that are funded, 
specifically authorized or controlled by, or carried out on 
behalf of, the United States (Article 2.a(i)); if agreed by the 
United States, additional information needed to improve the 
effectiveness or efficiency of safeguards on nuclear material 
at nuclear facilities and locations outside facilities (Article 
2.a(ii)); a general description of each building on a site 
(i.e., the area delimited by the United States in the relevant 
design information for a facility) (Articles 2.a(iii) and 
18.(b)); a description of the scale of operations of each 
location engaged in the manufacturing activities specified in 
Annex I (Article 2.a(iv)); information regarding uranium mines 
and concentration plants and thorium concentration plants 
(Article 2.a(v)); information regarding locations with certain 
quantities of specified nuclear materials as well as 
information regarding exports and imports of certain quantities 
of these materials (Article 2.a(vi)); information regarding 
nuclear material declared by the United States but exempted 
from safeguards by arrangement with the IAEA (Article 
2.a(vii)); information regarding the location or further 
processing of intermediate or high-level waste containing 
plutonium, high enriched uranium or uranium-233 on which 
safeguards have been terminated pursuant to Article 11 of the 
Voluntary Offer (Article 2.a(viii)); information regarding the 
equipment and non-nuclear material specified in Annex II with 
regard to exports and imports of such items (Article 2.a(ix)); 
and information regarding general plans for the succeeding 10-
year period relevant to the development of the nuclear fuel 
cycle when approved by the appropriate authorities in the 
United States (Article 2.a(x)).
    Article 2.b requires the United States to make every 
reasonable effort to provide: information regarding specified 
nuclear fuel cycle-related research and development activities 
not involving nuclear material that are not funded, 
specifically authorized or controlled by, or carried out on 
behalf of, the United States (Article 2.b(i)); and a general 
description of activities and the identity of the person or 
entity carrying out activities at locations identified by the 
IAEA outside a site (i.e., the area delimited by the United 
States in the relevant design information for a facility) that 
the IAEA considers might be functionally related to the 
activities of that site (Articles 2.b(ii) and 18.b).
    Article 2.c requires the United States, if requested by the 
IAEA, to provide amplifications or clarifications of any 
information provided under Article 2, in so far as relevant for 
the purpose of safeguards. The United States has informed the 
IAEA that it expects that a ``question relating to the 
correctness and completeness of the information provided 
pursuant to Article 2'', (Article 4.a.(ii)) or an 
``inconsistency relating to that information'' (Article 
4.a.(ii)) will be judged by the IAEA strictly within the 
context of whether the information provided with respect to 
civil nuclear activities is complete, correct, and internally 
consistent. In accordance with the National Security Exclusion, 
the United States will supply information pursuant to Article 2 
of the Additional Protocol only on those unclassified 
activities to which it has determined that it will be able to 
provide the IAEA with sufficient access, including with managed 
access, to enable it to verify the accuracy of the declared 
information.

         ARTICLE 3--TIMELINES FOR THE PROVISION OF INFORMATION

    Article 3 sets forth the timelines for submission of the 
U.S. declarations. The United States must provide to the IAEA 
the information identified in Article 2.a(i), (iii), (iv), (v), 
(vi)(a), (vii), and (x) and Article 2.b(i) within 180 days of 
the entry into force of the Additional Protocol. Other 
information is to be submitted on a quarterly or annual basis, 
within a specified period from a particular event, or as 
negotiated on a case-by-case basis.

                   ARTICLES 4-6--COMPLEMENTARY ACCESS

    Article 4 establishes the rights and obligations of the 
IAEA with regard to the implementation of complementary access. 
Specifically, Article 4.a provides that the IAEA shall not 
mechanistically or systematically seek to verify the 
information in the Article 2 declarations and then sets forth 
the purposes for which the IAEA can exercise complementary 
access. Article 4.a(i) specifies that the IAEA shall have 
access to the locations referred to in Article 5.a(i) or (ii) 
on a selective basis in order to assure the absence of 
undeclared nuclear material and activities. Under Article 
4.a(ii), the IAEA shall have access to the locations specified 
in Articles 5.b or 5.c for the purpose of resolving a question 
relating to the correctness and completeness of the information 
provided or in resolving an inconsistency relating to that 
information. Article 4.a(iii) allows the IAEA to have access to 
any of the decommissioned locations referred to in Article 
5.a(iii) to the extent necessary to confirm the U.S. 
declaration. The United States has informed the IAEA that it 
expects the IAEA to seek such access in the United States for 
the purpose of increasing the effectiveness or efficiency of 
IAEA safeguards at facilities in non-nuclear-weapon states or 
enhancing the capability of the IAEA to detect undeclared 
nuclear material and activities in a non-nuclear-weapon state. 
Further, the United States has informed the IAEA that, as a 
nuclear-weapon state, the United States foresees no 
circumstances in which the IAEA would need to request access in 
the United States pursuant to Article 4.d of the Additional 
Protocol without first providing the United States with the 
opportunity to clarify and facilitate the resolution of the 
question or the inconsistency.
    Under Article 4.b, the IAEA is generally required to give 
advance notice of access of at least 24 hours. However, for 
access to any place on a site (defined in Article 18.b as the 
area delimited by the United States in the relevant design 
information for a facility) that is sought in conjunction with 
design information verification visits or ad hoc or routine 
inspections on that site, the period of advance notice shall, 
if the IAEA so requests, be at least two hours, but in 
exceptional circumstances may be less than two hours. Under 
Article 4.c, the advance notice shall be in writing and specify 
the reasons for access and the activities to be carried out. 
Article 4.d states that, in the case of a question or 
inconsistency, the IAEA shall provide the United States with an 
opportunity to clarify and facilitate the resolution of the 
question or inconsistency. The Additional Protocol states that 
such an opportunity is to be provided before a request for 
access, unless the IAEA considers that delay in access would 
prejudice the purpose for which the access is sought. The IAEA 
is not to draw any conclusions about the question or 
inconsistency until the United States has been provided with 
such an opportunity. As noted throughout, the United States has 
informed the IAEA that as a nuclear-weapon state, the United 
States foresees no circumstances in which the IAEA would need 
to request access pursuant to Article 4.d of the Additional 
Protocol without first providing the United States with the 
opportunity to clarify and facilitate the resolution of the 
question or inconsistency. Pursuant to Article 4.e, unless 
otherwise agreed to by the United States, access shall only 
take place during regular working hours. Article 4.f 
specifically authorizes U.S. representatives to accompany IAEA 
inspectors during their access, provided that the inspectors 
are not thereby delayed or otherwise impeded in the exercise of 
their functions. However, the managed access provisions of 
Article 1 and Article 7 or the National Security Exclusion 
could be invoked and, if invoked, could preclude or otherwise 
affect IAEA access or activities as the case may be.
    Article 5 sets forth the locations to which the IAEA may 
have access. Specifically, Article 5.a defines the locations 
for which the United States must provide access subject to the 
managed access provision of Article 1 and the National Security 
Exclusion or the managed access provisions of Article 7. These 
are: any place on a site (i.e., the area delimited by the 
United States in the relevant design information for a 
facility) (Article 5.a(i)); any location identified by the 
United States in its declarations under Article 2.a(v)--(viii) 
(Article 5.a(ii)); and any decommissioned facility or 
decommissioned location outside facilities where nuclear 
material was customarily used (Article 5.a(iii)).
    Articles 5.b and 5.c list other locations for which the 
United States shall provide access or, if it is unable to do 
so, ``shall make every reasonable effort'' to satisfy IAEA 
requirements, without delay, through other means. The locations 
in Article 5.b are the locations (other than those referred to 
in Article 5.a(i)) described in the declarations made under the 
following provisions: Article 2.a(i) (locations of nuclear fuel 
cycle-related research and development funded, authorized, or 
controlled by, or carried out on behalf of the United States); 
Article 2.a(iv) (locations engaged in activities listed in 
Annex I); Article 2.a(ix)(b) (locations of intended use in the 
United States of imported Annex II equipment and non-nuclear 
material) and Article 2.b (specified nuclear fuel cycle-related 
research and development that is not funded, authorized, or 
controlled by, or carried out on behalf of, the United States 
and locations outside a site). Article 5.c provides for access 
to any location specified by the IAEA, other than locations 
referred to in Article 5.a or 5.b, to carry out location-
specific environmental sampling.
    Under the National Security Exclusion, the United States 
has the right to exclude from the Article 2 declarations 
locations that it determines would result in IAEA access to 
activities with direct national security significance or to 
locations or information associated with such activities. 
Access under Articles 5.a(i), 5.a(ii), 5.a(iii) and 5.b is 
limited to those locations identified by the United States in 
its declarations under Article 2. The IAEA could seek access to 
other locations (Article 5.c), but the United States will 
invoke the National Security Exclusion and deny access if it 
determines that such access would result in access by the IAEA 
to activities with direct national security significance or to 
locations or information associated with such activities.
    Article 6 sets forth the range of activities that may be 
employed by IAEA inspectors during complementary access. Under 
Article 6, the type of activities that can be conducted by the 
inspectors depends on the particular location under inspection. 
The United States intends to exercise its right under the 
National Security Exclusion and managed access provisions of 
Article 1 to preclude the use of particular measures if their 
use would result in access by the IAEA to activities with 
direct national security significance to the United States or 
to locations or information associated with such activities. 
For example, the United States will use the National Security 
Exclusion to preclude the IAEA from collecting location 
specific environmental samples from current or former nuclear 
weapon production complex sites. In addition, the complementary 
access activities referred to in Articles 5 and 6 are subject 
to the managed access provisions contained in Article 7.

                       ARTICLE 7--MANAGED ACCESS

    Article 7 provides that, upon request by the United States, 
the IAEA and the United States shall make arrangements for 
managed access under the Additional Protocol in order to 
prevent the dissemination of proliferation-sensitive 
information, to meet safety or physical protection 
requirements, or to protect proprietary or commercially 
sensitive information. Under Article 7.b, the United States 
may, when providing the information referred to in Article 2, 
inform the IAEA of the places at a site or location at which 
managed access may be applicable, although it is not obligated 
to do so. Article 7.c allows the United States to use managed 
access pending entry into force of any necessary Subsidiary 
Arrangements. Specific managed access measures needed to 
protect the types of information set forth in Article 7 will be 
determined on a case-by-case basis and will depend on, among 
other factors, the details of the particular location, and the 
specific inspection activities that are requested by the IAEA. 
As noted previously, the United States intends to deny access 
or the application of specific measures on the basis of the 
National Security Exclusion. Where the United States decides to 
permit access, Article 1.c also allows the United States to use 
managed access to protect activities, information, or locations 
of direct national security significance. This gives the United 
States the discretion to use managed access, rather than the 
National Security Exclusion, to protect activities, 
information, or locations of direct national security 
significance. Such circumstances may arise, for example, where 
unclassified, civil nuclear activities are being conducted at 
installations where national security activities are also being 
conducted and it has been determined that managed access 
procedures can be implemented to allow IAEA access to the 
unclassified activities while fully protecting classified 
information.
    When the Additional Protocol was concluded, a Subsidiary 
Arrangement was agreed to between the United States and the 
IAEA specifying, for the purposes of the Additional Protocol 
with the United States, as a nuclear-weapon state, measures 
that could be taken to manage access. These may include, inter 
alia: (a) removal of sensitive papers from office spaces; (b) 
shrouding of sensitive displays, stores, and equipment; (c) 
shrouding of sensitive pieces of equipment, such as computers 
or electronic systems; (d) logging off of computer systems and 
turning off data indicating devices; (e) restriction of 
safeguards instrumentation or environmental sampling to the 
purpose of the access; and (f) in exceptional cases, giving 
only individual inspectors access to certain parts of the 
inspection location. This Subsidiary Arrangement is to enter 
into force when the Additional Protocol enters into force.

              ARTICLE 8--ADDITIONAL ACCESS AT U.S. REQUEST

    Article 8 allows the United States to offer the IAEA access 
to locations in addition to those referred to in Articles 5 and 
9 and to request that the IAEA conduct verification activities 
at a particular location. The IAEA shall, without delay, make 
every reasonable effort to act upon such a request.

                   ARTICLE 9--ENVIRONMENTAL SAMPLING

    Under Article 9, the United States shall provide the IAEA 
with access to locations specified by the IAEA to carry out 
wide-area environmental sampling, provided that if the United 
States is unable to provide such access, it shall make every 
reasonable effort to satisfy IAEA requirements at alternative 
locations. Article 9 further provides that the IAEA shall not 
seek such access until the use of wide-area environmental 
sampling and the procedural arrangements therefor have been 
approved by the IAEA's Board of Governors and only following 
consultations between the IAEA and the United States. Such 
arrangements have not been brought before or approved by the 
Board. The United States has informed the IAEA that even if 
such arrangements were approved, the United States does not 
foresee circumstances in which the IAEA would need to propose 
to conduct wide-area environmental sampling.

     ARTICLE 10--REQUIREMENTS FOR IAEA REPORTS TO THE UNITED STATES

    Article 10 requires the IAEA to inform the United States, 
within specified time limits, of activities carried out under 
the Additional Protocol, the results of activities in respect 
of any questions or inconsistencies the IAEA had brought to the 
attention of the United States, and the conclusions it has 
drawn from its activities under the Additional Protocol.

               ARTICLE 11--DESIGNATION OF IAEA INSPECTORS

    Article 11 provides improved procedures for the designation 
of IAEA inspectors. Under Article 11, the Director General 
shall notify the United States of the Board's approval of any 
IAEA official as a safeguards inspector. Unless the United 
States advises the Director General of its rejection of such an 
official as an inspector within three months of receipt of 
notification of the Board's approval, the inspector will be 
considered designated to the United States. Under the terms of 
the Voluntary Offer, the United States also retains the right 
subsequently to withdraw acceptance of inspectors as needed.

                           ARTICLE 12--VISAS

    To enable inspectors to carry out their duties in the 
United States, Article 12 requires the United States to issue 
appropriate multiple-entry/exit and/or transit visas to 
designated IAEA inspectors. These visas must be valid for at 
least one year, must be issued within one month of a request, 
and must be renewed, as required, to cover the duration of the 
inspector's designation to the United States.

                  ARTICLE 13--SUBSIDIARY ARRANGEMENTS

    Article 13 provides for the conclusion of Subsidiary 
Arrangements that specify how Additional Protocol measures are 
to be applied. Requests for such arrangements can be made at 
any time by either the United States or the IAEA. Subsidiary 
Arrangements are likely to regard matters such as managed 
access and IAEA communications. The United States and the IAEA 
shall agree on such arrangements within 90 days of the entry 
into force of the Additional Protocol or, where the indication 
of the need for such Subsidiary Arrangements is made after the 
entry into force of the Additional Protocol, within 90 days of 
date of such indication. As discussed in Article 7, the United 
States and the IAEA have agreed to an initial Subsidiary 
Arrangement governing certain measures regarding managed 
access. This Arrangement is to enter into force upon entry into 
force of the Additional Protocol.

                 ARTICLE 14--IAEA COMMUNICATION SYSTEMS

    Under Article 14, the United States is required to permit 
and protect unimpeded communications by the IAEA for official 
purposes between IAEA inspectors in the United States and IAEA 
Headquarters and/or Regional Offices. The IAEA has the right, 
in consultation with the United States, to make use of 
internationally established systems of direct communications, 
including satellite systems and other forms of 
telecommunication. IAEA communications shall take due account 
of the need to protect proprietary or commercially sensitive 
information or design information that the United States 
regards as being of particular sensitivity.

        ARTICLE 15--IAEA PROTECTION OF CONFIDENTIAL INFORMATION

    Article 15 requires the IAEA to maintain a stringent regime 
to ensure effective protection against disclosure of 
commercial, technological, and industrial secrets and other 
confidential information coming to its knowledge. The Board has 
approved a strengthened regime and is required under the 
Additional Protocol to review it periodically. This regime 
includes provisions relating to general principles and 
associated measures for the handling of confidential 
information, conditions of staff employment relating to the 
protection of confidential information, and procedures in cases 
of breaches or alleged breaches of confidentiality.

          ARTICLE 16--INTEGRATION AND AMENDMENT OF THE ANNEXES

    Article 16.a provides that the Annexes to the Additional 
Protocol are an integral part thereof. These annexes provide 
technical definitions of key nuclear activities and equipment 
and material declarable under Article 2 of the Additional 
Protocol. Article 16.b provides that the Annexes may be amended 
by the Board upon the advice of a working group of experts 
established by the Board and open to all members of the IAEA. 
Any such amendment will take effect four months after its 
adoption by the Board.

                      ARTICLE 17--ENTRY INTO FORCE

    This provision establishes the date of entry into force of 
the Additional Protocol. Specifically, the Additional Protocol 
will come into force only when the IAEA receives written 
notification from the United States that its statutory and 
constitutional requirements for entry into force have been met.

                        ARTICLE 18--DEFINITIONS

    Article 18 sets forth the definitions of the following 
terms used in the Additional Protocol: ``nuclear fuel cycle-
related research and development activities''; ``site''; 
``decommissioned facility and decommissioned location outside 
facilities''; ``closed-down facility and closed-down location 
outside facilities''; ``high-enriched uranium''; ``location-
specific environmental sampling''; ``wide-area environmental 
sampling''; ``nuclear material''; ``facility''; and ``location 
outside facilities''.

                                ANNEXES

    Annex I contains a list of nuclear-related activities, such 
as centrifuge manufacturing, required to be reported under 
Article 2.a(iv). Annex II contains the list of specified 
equipment and non-nuclear material for the reporting of exports 
and imports, as required by Article 2.a(ix). Annex II 
reproduces the list of specified equipment and non-nuclear 
material that was approved by the Board in 1992 for voluntary 
reporting of exports to the IAEA

                          V. Committee Action

    The Additional Protocol was referred to the Committee on 
May 10, 2002.
    The Committee received testimony on the Additional Protocol 
at a hearing on January 29, 2004. Witnesses for this hearing 
were: The Honorable Linton F. Brooks, Administrator, National 
Nuclear Security Administration; the Honorable Peter 
Lichtenbaum, Assistant Secretary of Commerce for Export 
Administration, U.S. Department of Commerce; Ms. Susan F. Burk, 
Acting Assistant Secretary of State for Non-proliferation, U.S. 
Department of State; and, Mr. Mark T. Esper, Deputy Assistant 
Secretary of Defense for Negotiations Policy, U.S. Department 
of Defense. The Committee also requested and received 
statements from the Nuclear Energy Institute; the Honorable 
Ronald F. Lehman, Director of the Center for Global Security 
Research at Lawrence Livermore National Laboratory and the 
former Director of the Arms Control and Disarmament Agency; and 
Ambassador Norman A. Wulf, former Special Representative of the 
President for Nuclear Non-proliferaiton.
    At a business meeting on March 4, 2004, the Committee 
considered a draft resolution of ratification including 2 
conditions and 8 understandings. After discussion and debate, 
the resolution was approved by a vote of 19 in favor and 0 
against. Neither the conditions nor the understandings need be 
transmitted to the IAEA when the United States deposits its 
instrument of ratification. Rather, they address the 
relationship between the Senate and the President as the Senate 
gives its advice and consent to ratification of the Additional 
Protocol.

Condition (1). Certifications Regarding The National Security 
        Exclusion, Managed Access, and Declared Locations.

    In deciding to accept the entire text of the Additional 
Protocol, the United States clearly seeks to show its support 
for the Additional Protocol as an additional non-proliferation 
tool and to demonstrate that adoption of the Model Additional 
Protocol by non-nuclear weapon states will not put their 
civilian nuclear industries at a disadvantage. As Ambassador 
Linton F. Brooks, Administrator of the National Nuclear 
Security Administration, noted in testimony before the 
Committee:

          [I]f we're going to get the benefits of widespread 
        adherence to the protocol, the United States must lead 
        the way. Given our dominant position in the world 
        today, there's simply no substitute for U.S. 
        leadership. . . . Just like the original Safeguards 
        Agreement, the U.S. Additional Protocol contains a 
        national security exclusion to protect our national 
        security equities. But except for that, the U.S. 
        Additional Protocol contains every word of the IAEA 
        Model Protocol and we're the only nuclear weapon state 
        that has accepted the Model Protocol in its entirety. 
        If we hadn't pushed so hard for a strong Model Protocol 
        and if we hadn't accepted a comprehensive Additional 
        Protocol for ourselves, I believe fewer states would 
        have been willing to accept their own protocols. 
        8
---------------------------------------------------------------------------
    \8\ Part IX, p. 60.

    The Committee accepts the need to demonstrate U.S. 
leadership, but it is pleased nevertheless that protections for 
the U.S. nuclear weapons and civil application sectors were 
included in the Additional Protocol. The most sweeping of such 
provisions is the National Security Exclusion contained in 
Article 1.b, discussed above. Likewise, the Committee notes 
that there are distinct forms of managed access provided for 
under the Additional Protocol. Article 1.c states that ``the 
United States shall have the right to use managed access in 
connection with activities with direct national security 
significance to the United States or in connection with 
locations or information associated with such activities.'' 
Article 7 of the Additional Protocol permits the United States 
to invoke managed access ``in order to prevent the 
dissemination of proliferation-sensitive information, to meet 
safety or physical protection requirements, or to protect 
proprietary or commercially sensitive information.''
    While the Committee strongly supports the U.S. decision to 
accept the entire text of the Additional Protocol, with only 
the addition of our national security rights under Article 1, 
it is important to determine how the executive branch will 
actually exercise and use those rights available to the United 
States in Article 1. As Ambassador Brooks noted, ``We chose to 
adopt the entire Additional Protocol with only the addition of 
the national security exemption. It's not a national 
inconvenience exemption, it's not a national burden-on-
somebody-who-has-to-fill-out-a-form exemption, it's a national 
security exemption.'' 9
---------------------------------------------------------------------------
    \9\ Part IX, p. 96.
---------------------------------------------------------------------------
    Testimony before the Committee strongly indicates that use 
of the National Security Exclusion under Article 1 is the 
exclusive right of the United States, and is not subject to 
interpretation by the IAEA. As Ambassador Brooks told the 
Committee:

          [T]he United States can unilaterally and without 
        explanation invoke [the] National Security Exclusion 
        that enables us to deny IAEA access to activities with 
        direct national security significance, or to locations 
        associated with those activities. The IAEA has no right 
        to challenge or question the U.S. invocation of the 
        National Security Exclusion. 10
---------------------------------------------------------------------------
    \10\ Part IX, p. 61.

    Similarly, Mark T. Esper, Deputy Assistant Secretary of 
---------------------------------------------------------------------------
Defense for Negotiations Policy, stated:

          The National Security Exclusion is a critical 
        protection for the United States. Under this provision, 
        the United States can exclude information and 
        activities from declarations and deny access to IAEA 
        inspectors anytime, anyplace. In the declaration 
        process, the National Security Exclusion will be used 
        to exclude locations, activities and information of 
        direct national security interest. The United States, 
        unlike non-nuclear weapon states, has and will continue 
        to have undeclared nuclear material and activities 
        outside the scope of the Additional Protocol. 
        11
---------------------------------------------------------------------------
    \11\ Part IX, p. 84.

    In addition to the Administration's statements before the 
Committee, included in the package sent by the Administration 
to the Senate containing the Additional Protocol was a letter 
sent by Ambassador Kenneth C. Brill, the United States 
Permanent Representative to the International Atomic Energy 
Agency and the Vienna Office of the United Nations, to the 
Director General of the International Atomic Energy Agency on 
April 30, 2002. This letter is incorporated by reference in the 
Committee's recommended Understanding (1), and its text is 
reproduced in the discussion of that provision. Ambassador 
Brill's letter makes clear to the IAEA that ``the United States 
will make full and repeated use'' of its rights under Article 1 
``in order to protect information and activities of direct 
national security significance to the United States.'' 
12 The Article-by-Article Analysis submitted by the 
President with the Additional Protocol further notes that the 
IAEA is aware of these views and that ``[t]he Agency knows and 
accepts that this will be the case.'' 13
---------------------------------------------------------------------------
    \12\ Treaty Doc. 107-7, at p. 1.
    \13\ Treaty Doc. 107-7, at p. 7.
---------------------------------------------------------------------------
    An equally important concern is how the use of the National 
Security Exclusion will be decided within the U.S. Government. 
The Article-by-Article Analysis submitted to the Senate states 
that the National Security Exclusion will be exercised when the 
application of the Additional Protocol's provisions would 
involve ``activities with direct national security significance 
to the United States or to locations and information associated 
with such activities'' 14 and further that 
``decisions concerning the use of the National Security 
Exclusion and managed access to protect national security 
information will be made in accordance with established 
implementing procedures solely by the affected cognizant 
Department or Agency.'' 15 In response to a 
Committee Question for the Record, the Administration added 
that, ``in cases where the equity agency deems there is 
information, activities, and locations of direct national 
security significance which cannot be protected, the national 
security exclusion will be used.'' \16\
---------------------------------------------------------------------------
    \14\ Ibid.
    \15\ Ibid, p. 8.
    \16\ Part IX, p. 106.
---------------------------------------------------------------------------
    The Committee received several classified briefings 
regarding principles that will govern the use of the National 
Security Exclusion under Article 1.b and the right of managed 
access under Article 1.c, and has been shown a classified study 
which details the principles developed for the application of 
the National Security Exclusion. Additionally, several 
classified answers to questions for the record addressed this 
issue. Based in part on these briefings and answers, the 
Committee believes that the executive branch will eventually 
promulgate procedures to implement Article 1.b. The needed 
regulations and interagency guidance have not been finalized, 
however, and cannot be until after the Senate gives its advice 
and consent to ratification and implementing legislation is 
enacted.
    Because of the need to ensure that such regulations and 
guidance are promulgated in a timely manner, and more 
importantly are consistent with the principles developed for 
the application of the National Security Exclusion, the 
Committee has included Condition (1) in its proposed Resolution 
of Ratification. Condition (1) (A) requires the President to 
certify that not later than 180 days after entry into force of 
the Additional Protocol, all necessary regulations will be 
promulgated and in force concerning the National Security 
Exclusion and that such regulations shall be made in accordance 
with the principles developed for application of the National 
Security Exclusion, principles which have been briefed to the 
Committee. This Condition allows for prospective certification, 
prior to the deposit of the instrument of ratification, so as 
not to delay the Additional Protocol's entry into force. 
Pursuant to Article 3.a of the Additional Protocol, the 
provision to the IAEA of information under Article 2.a(i), 
(iii), (iv), (v), (vi) (a), (vii), and (x) and 2.b(i) need not 
be made until 180 days after entry into force. Thus, the 
regulatory framework governing U.S. implementation of the 
Additional Protocol could be completed during this 180-day 
period. The intended effect of Condition (1)(A) is to ensure 
that regulations will be timely and will conform to the 
principles concerning the National Security Exclusion that have 
been shared with the Committee.
    Managed access under the Additional Protocol is 
complicated, as there are two types of managed access. For the 
Department of Energy, managed access under Article 7 includes 
``shrouding, closing doors, limiting access, turning off 
computers . . . that will allow us to prevent IAEA inspectors 
from coming into contact with proliferation sensitive or 
proprietary or commercially sensitive information.'' 
17
---------------------------------------------------------------------------
    \17\ Testimony of Ambassador Linton F. Brooks, Part IX, p. 61.
---------------------------------------------------------------------------
    Ambassador Brooks testified that ``Managed access under 
Article 1 is more robust than the Article 7 managed access.'' 
\18\ Thus, the Subsidiary Arrangement of June 12, 1998, cites 
such additional managed access measures as removal of sensitive 
papers from inspected areas and ``in exceptional cases, giving 
only individual inspectors access to certain parts of the 
inspection location.'' \19\ Ambassador Brooks emphasized, 
however, that the utility of managed access is limited:
---------------------------------------------------------------------------
    \18\ Part IX, p. 64.
    \19\ Treaty Doc. 107-7, at p. 4.

          We'll . . . make full use of managed access, but once 
        again only where we're confident that managed access is 
        sufficient to protect our national security equities. . 
        . . In short, we plan to make full use of our rights 
        under the Additional Protocol to protect our interests 
        while still meeting our obligations. 20
---------------------------------------------------------------------------
    \20\ Part IX, p. 62.

Secretary Esper noted that the only sites where the Defense 
Department anticipates possibly invoking managed access (rather 
than the National Security Exclusion) will be at those sites 
the Department of Energy declares, but at which certain Defense 
Department equities might be at stake.
    The Committee believes that it is important also to ensure 
that if managed access is invoked it is used effectively. 
Condition (1)(B), which is similar to (1)(A), therefore 
requires prospective certification regarding inter-agency 
guidance and regulation on managed access.
    Finally, in (1)(C) the Committee has conditioned entry into 
force on the timely completion of necessary security and 
counterintelligence training for any declared locations of 
direct national security significance to the United States. 
While it is clear that the National Security Exclusion will be 
used in the declaration process to, as Secretary Esper noted, 
``exclude locations, activities and information of direct 
national security interest,'' the Committee finds that there 
still may be locations that contain sensitive activities and 
national security equities that could be declared to the IAEA, 
and where managed access might be used if an inspection were to 
occur. In such a circumstance it is only prudent that necessary 
and proper security measures be taken for such locations.

Condition (2). Certification Regarding Site Vulnerability Assessments.

    The Committee has devoted particular attention to the 
status of site vulnerability assessments for potentially 
declarable sites in the United States. In response to a 
Committee Question for the Record, the Administration stated 
that ``DOD, in cooperation with DOE, conducted 10 vulnerability 
assessments at DOE facilities in 1999-2000. These assessments 
were based on preliminary assumptions that are no longer valid 
and will need to be revisited.'' 21 The response to 
this question offered no reason as to why preliminary 
assessments are no longer valid, but stated that ``[t]his 
process is underway.'' 22
---------------------------------------------------------------------------
    \21\ Part IX, p. 106.
    \22\ Ibid.
---------------------------------------------------------------------------
    During testimony before the Committee, Secretary Esper 
noted that for the Department of Defense:

          In order to gauge risk at specific locations, 
        vulnerability assessments will be conducted at 
        potentially declarable sites that have national 
        security equities. Once our implementation guidance has 
        been clarified and implementing legislation passed, we 
        will revisit and update assessments that have been 
        previously conducted. We are also reviewing what other 
        sites may require vulnerability assessments. These 
        assessments will vary, based on the nature and 
        location, among other things, of the site or activity. 
        Some will be fairly simple, while others will require a 
        more detailed examination. 23
---------------------------------------------------------------------------
    \23\ Part IX, p. 86.

The Administration's answer to a Committee Question for the 
---------------------------------------------------------------------------
Record addressed what this process will entail:

          In addition to initial assessments and procedure 
        revisions to support entry into force, DOE sites will 
        integrate Additional Protocol requirements into its 
        periodic security assessment, planning, and procedure 
        updates. Furthermore, a subgroup of the DOD Nuclear 
        Safeguards Implementation Working Group will identify 
        other sites that require vulnerability assessments. The 
        completion date depends on the number of locations 
        identified for vulnerability assessments and available 
        resources. All necessary site vulnerability assessments 
        will be completed by entry-into-force of the U.S. 
        Additional Protocol. 24
---------------------------------------------------------------------------
    \24\ Part IX, p. 106.

    Similarly, Secretary Lichtenbaum noted for the Department 
---------------------------------------------------------------------------
of Commerce that

          . . . in order to ensure that proper protections are 
        established and that industry has adequate time to 
        understand and implement its reporting obligations, 
        entry into force will not occur until Commerce 
        publishes its regulations in final form and 
        vulnerability assessments of declared locations of 
        direct national security significance are completed. 
        25
---------------------------------------------------------------------------
    \25\ Part IX, p. 91.

    The Committee is concerned about the about the small number 
of site vulnerability assessments that have been completed for 
locations of direct national security significance that might 
be declared under the Additional Protocol. The Committee 
understands that, as Ambassador Brooks stated, ``The list of 
sites will obviously grow. We don't know by how much,'' 
26 and that as a result, site vulnerability 
assessments are difficult to complete at this time. The 
Committee believes that all such assessments should be carried 
out prior to any possible inspections under the Additional 
Protocol and accordingly recommends conditioning the Senate's 
advice and consent to ratification on certification that all 
site vulnerability assessments will have been completed not 
later than 180 days after the deposit of the United States 
instrument of ratification for the initial United States 
declaration to the IAEA under the Additional Protocol.
---------------------------------------------------------------------------
    \26\ Part IX, p. 92.
---------------------------------------------------------------------------

Understanding (1). Implementation of the Additional Protocol.

    As noted above, on April 30, 2002, Ambassador Kenneth C. 
Brill sent a letter to the Director General of the IAEA in 
which he expressed the United States' interpretation of certain 
provisions contained in the Additional Protocol. The text of 
this letter is as follows:

                         United States Mission to  
             International Organizations in Vienna,
                             Obersteinergasse 11/1, A-1190,
                                                   Vienna, Austria.

                                                    April 30, 2002.
Mr. Mohamed ElBaradei, Director General,
International Atomic Energy Agency,
Vienna International Center.

    Dear Mr. ElBaradei:
    I wish to inform the International Atomic Energy Agency of 
the decision to recommend that President Bush seek the advice 
and consent of the U.S. Senate to ratification of 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 (the 
``Additional Protocol''), signed on June 12, 1998.
    The recommendation to the President to seek Senate advice 
and consent to ratification of the Additional Protocol is based 
on how the United States views implementation of key provisions 
of the Additional Protocol. The United States intends to 
provide information and access to the IAEA in accordance with 
the terms of the Additional Protocol in order to assist it in 
developing the procedures, tools and techniques that will 
strengthen the capability of the IAEA to detect undeclared 
nuclear activities in ``non-nuclear-weapon states'' (NNWS).

A. Use of the National Security Exclusion and Managed Access

    The Additional Protocol includes all of the measures of the 
Model Protocol adopted by the Board of Governors. It also 
contains several provisions unique to the status of the United 
States as a ``nuclear weapon state'' (NWS). In particular, the 
Additional Protocol contains a ``National Security Exclusion'' 
(NSE) that allows the United States to exclude the application 
of the Additional Protocol where the United States decides that 
its application would result in ``access by the Agency to 
activities with direct national security significance to the 
United States or to locations or information associated with 
such activities.'' (Article 1.b) The Additional Protocol also 
contains a provision not contained in the Model Protocol for 
NNWS that permits the United States to manage access ``in 
connection with activities with direct national security 
significance to the United States or in connection with 
locations or information associated with such activities.'' 
(Article 1.c)
    The United States will make full and repeated use of these 
provisions in order to protect information, locations, and 
activities of direct national security significance to the 
United States.
    Decisions regarding the use of these provisions are a 
unilateral prerogative of the United States--not subject to 
interpretation by, or justification to, any other party.
    The United States, unlike NNWS, has and will continue to 
have, undeclared nuclear material and activities outside the 
scope of the Additional Protocol and the November 18, 1977, 
Agreement between the United States of America and the 
International Atomic Energy Agency for the Application of 
Safeguards in the United States of America and their applicable 
inspection provisions, consistent with its status as a NWS. 
Certain activities that occur at locations that are part of the 
Untied States civil nuclear program may also be excluded from 
the declaration and access provisions of the Additional 
Protocol in accordance with the terms of the NSE.
    The U.S.-IAEA Subsidiary Arrangement to the Additional 
Protocol signed at Vienna on June 12, 1998, will enter into 
force when the Additional Protocol enters into force.

B. Role of the Additional Protocol in Strengthening IAEA Capabilities

    The United States intends that its implementation of the 
Additional Protocol will, as expressed in the Preamble, 
``further enhance nuclear non-proliferation by strengthening 
the effectiveness and improving the efficiency of the Agency's 
safeguards system.'' Since the United States will have 
undeclared nuclear activities, Agency activities directed 
toward the detection of undeclared nuclear activities in the 
United States are not viewed as necessary to enhance non-
proliferation. In accordance with the NSE, the United States 
will supply information pursuant to Article 2 of the Additional 
Protocol only on those unclassified activities to which it has 
determined that it will be able to provide the IAEA with 
sufficient access, including with managed access, to enable it 
to verify the accuracy of the declared information.
    The Untied States expects the IAEA to seek access in the 
United States for the purpose of increasing the effectiveness 
or efficiency of IAEA safeguards at facilities in NNWS, or 
enhancing the capability of the IAEA to detect undeclared 
nuclear material and activities in NNWS.
    As a NWS, the United States foresees no circumstances in 
which the IAEA would need to request access in the United 
States pursuant to Article 4.d of the Additional Protocol on 
the basis of a question or inconsistency without first 
providing the United States with the opportunity to clarify and 
facilitate the resolution of the question or inconsistency.
    When the IAEA has access to a location, site or facility in 
the United States, the United States will conduct ``managed 
access'' under Article 1.c of the Additional Protocol according 
to U.S. national security requirements, or under Article 7 of 
the Additional Protocol, according to requirements to protect, 
inter alia, proprietary or commercially sensitive information, 
as applicable.

C. Questions Under Article 2

    A ``question relating to the correctness and completeness 
of the information provided pursuant to Article 2,'' (Article 
4.a.(ii)) or an ``inconsistency relating to that information'' 
(Article 4.a.(ii)) will be judged by the IAEA strictly within 
the context of whether the information provided with respect to 
civil nuclear activities is complete, correct, and internally 
consistent.

D. Wide-Area and Site-Specific Sampling

    Should the use of wide area environmental sampling be 
approved by the IAEA Board of Governors in accordance with 
Article 9, the United States does not foresee circumstances in 
which the IAEA would need to propose to conduct wide-area 
environmental sampling in the United States.
    In accordance with the NSE, the United States will not 
allow location specific environmental sampling with respect to 
locations, information, and activities of direct national 
security significance to the Untied States. In this regard, the 
United States intends to use the NSE with regard to location-
specific environmental sampling at any current or former 
nuclear weapon production complex site.
    It is on the basis of these U.S. views that the United 
States is prepared to move toward bringing the Additional 
Protocol into force. The United States looks forward to working 
with the IAEA in improving its capability to detect undeclared 
nuclear material and activities in NNWS.

        Sincerely yours,
                                          Kenneth C. Brill,
                                                        Ambassador.

    The Committee noted that the IAEA had not responded to the 
letter, and so asked the Administration, in a Question for the 
Record, to state the purpose of Ambassador Brill's letter. The 
Administration replied:

          The letter was sent as a U.S. initiative and not as a 
        response to any request by an IAEA official. We wanted 
        to inform the IAEA explicitly and directly about the 
        U.S. approach toward the Additional Protocol and the 
        importance of the National Security Exclusion, rather 
        than just indirectly through the documents transmitting 
        the Protocol to the Senate. No official response, 
        either written or oral, to the April 30, 2002, letter 
        from Ambassador Kenneth Brill to IAEA Director General 
        Mohamed ElBaradei was requested or received. There is 
        no evidence of any negative reaction. 27
---------------------------------------------------------------------------
    \27\ Part IX, p. 109.

    Committee staff pursued this matter in discussions with 
IAEA officials and representatives, both in Washington and at 
IAEA Headquarters in Vienna. They, too, found no evidence of 
any negative reaction to Ambassador Brill's letter. Since 1993, 
the only inspections conducted by the IAEA in the United States 
have been those that the United States specifically requested, 
so as to document its handling of excess fissile material. The 
Committee believes that this practice is likely to continue. As 
the Administration noted in response to a Committee Question 
for the Record, ``The IAEA is not expected to waste scarce 
resources . . . in a nuclear-weapon state such as the United 
States.'' 28
---------------------------------------------------------------------------
    \28\ Part IX, p. 111.
---------------------------------------------------------------------------
    Given the importance of Ambassador Brill's letter as a 
statement of U.S. interpretation and intent, the Committee 
believes that the Senate should formally recognize this letter 
as one of the underpinnings of its advice and consent to 
ratification. Understanding (1) does this by stating the 
Senate's understanding that ``[i]mplementation of the 
Additional Protocol will conform to the principles set forth in 
the letter.''
    Administration responses to other Committee Questions for 
the Record and testimony before the Committee underscore 
Ambassador Brill's point that U.S. adoption of the Additional 
Protocol is intended to demonstrate U.S. leadership and enhance 
the capability of the IAEA in non-nuclear-weapons states. The 
United States, consistent with its status as a nuclear weapon 
state party to the NPT, will continue to have undeclared 
activities related to its nuclear weapons complex. ``It is not 
the purpose of Protocol implementation in nuclear weapons 
states to permit the IAEA to verify the completeness of the 
state's declaration'' 29 because, as a matter of 
fact, such states (indeed, the United States) will always have 
incomplete declarations:
---------------------------------------------------------------------------
    \29\ Part IX, p. 109.

          The primary purpose of the Additional Protocol in a 
        non-nuclear-weapon state is to enable the IAEA to 
        provide some assurance about the absence of undeclared 
        nuclear activities in that state. This purpose does not 
        apply to nuclear-weapon states, which are understood to 
        have extensive nuclear activities not required to be 
        declared to the IAEA. 30
---------------------------------------------------------------------------
    \30\ Ibid.

    The United States will implement the Additional Protocol in 
a manner consistent with the purposes for which the Additional 
Protocol exists in nuclear weapon states, accepting the entire 
text of the Protocol to show support for its universal 
adoption, and applying it only to the extent it does not 
infringe on our right to have undeclared activities as a 
nuclear-weapon state.
    One issue that Ambassador Brill's letter does not fully 
address is that of wide-area environmental sampling under 
Article 9. Ambassador Brill's letter notes that, with regard to 
site-specific environmental sampling:

          In accordance with the [National Security Exclusion], 
        the United States will not allow location-specific 
        environmental sampling with respect to locations, 
        information, and activities of direct national security 
        significance to the United States. In this regard, the 
        United States intends to use the NSE with regard to 
        location-specific environmental sampling at any current 
        or former nuclear weapon production complex site.

The letter does not state a definitive U.S. position with 
regard to wide-area environmental sampling, however, merely 
stating that, ``Should the use of wide area environmental 
sampling be approved by the IAEA Board of Governors in 
accordance with Article 9, the United States does not foresee 
circumstances in which the IAEA would need to propose to 
conduct wide-area environmental sampling in the United 
States.''
    The Committee understands that the IAEA's Board of 
Governors has not yet taken a decision with regard to the use 
of wide-area sampling techniques because the methods and 
technology associated with such sampling have not yet evolved 
to the point of making it an effective safeguards tool. The 
Committee is also aware of the potential utility of such 
sampling in a non-nuclear-weapon state suspected of having 
undeclared activities. There would appear to be no utility, 
however, in using such sampling in the United States to 
determine if there are undeclared activities here since, as a 
nuclear-weapon state, the United States will of course have 
undeclared nuclear activities.
    Another possibility is that the IAEA would wish to conduct 
wide-area environmental sampling in the United States in order 
to test equipment or techniques for later use in non-nuclear-
weapon states. The Committee expects that such a request would 
be granted only if the relevant U.S. Government agencies were 
certain that it would not lead to the loss of information of 
direct national security significance, and it is unclear 
whether that standard could ever be met. In response to 
Committee Questions for the Record, the Administration 
emphasized the need not only for the Board of Governors to 
approve wide-area environmental sampling as a safeguards 
technique, but also for consultation with the United States: 
``If wide-area sampling is eventually approved by the Board of 
Governors, its use in the United States requires consultations, 
and therefore agreement, between the IAEA and the United 
States.'' 31 the Administration went on to note that 
the United Kingdom ``accepted a limited version of Article 9 
that states it may accept wide area sampling if it were focused 
on detecting covert activities in [non-nuclear-weapon 
states].'' \32\
---------------------------------------------------------------------------
    \31\ Part IX, p. 110.
    \32\ Part IX, pp. 110-111.
---------------------------------------------------------------------------
    The Committee supports wide-area environmental sampling as 
a tool for use in non-nuclear-weapon states, but it is unclear 
what specific procedural arrangements the United States would 
seek regarding the use of wide-area environmental sampling in 
this country. The Committee expects that, as in the application 
of the National Security Exclusion generally, the relevant 
Federal department or agency with national security equities in 
the area will still have the power to determine the use of the 
National Security Exclusion should wide-area sampling raise a 
risk of disclosure of sensitive national security information.

Understanding (2). Notification to Congress of Added and Deleted 
        Locations.

    When the Senate adopted a resolution of advice and consent 
to the Voluntary Offer to accept IAEA safeguards, it included 
five understandings. One of those understandings stated:

          That the President shall notify the Committee on 
        Foreign Relations of the Senate and the Committee on 
        Foreign Affairs of the House of Representatives of any 
        proposed addition to the list, to be provided to the 
        International Atomic Energy Agency pursuant to Article 
        1(b) of the Agreement, of nuclear facilities within the 
        United States eligible for International Atomic Energy 
        Agency inspections, together with an explanation of the 
        basis upon which the determination was made that any 
        such facility did not have a direct national security 
        significance, not less than 60 days prior to such 
        proposed addition being provided to the International 
        Atomic Energy Agency, during which period the Congress 
        may disapprove such addition by joint resolution by 
        reason of direct national security significance, under 
        procedures identical to those provided for the 
        consideration of resolutions pursuant to section 130 of 
        the Atomic Energy Act of 1954 as amended. 33
---------------------------------------------------------------------------
    \33\ ``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 Attached Protocol, signed at Vienna 
on November 18, 1977,'' Ex. B, Ninety-fifth Congress, Second session, 
approved by the Senate on July 2, 1980.

    The Committee recommends a similar notification provision 
concerning added and deleted locations under the Additional 
Protocol, and the same consideration under expedited procedures 
for a resolution of disapproval of added locations as was 
included in the Senate's advice and consent to the Voluntary 
Offer. For any locations added to the list of locations to be 
declared to the IAEA, the understanding also calls for a 
certification that such addition shall not adversely affect 
U.S. national security. The Committee understands that for 
determinations concerning deleted locations that have a direct 
national security significance, notification under this 
understanding may have to come in classified form. The 
Committee did not specify a period of time under subsection (B) 
for consideration of such notifications, so long as the 
notification is provided to the Congress before being provided 
to the IAEA, so as not to prevent the United States from 
protecting the national security while meeting its obligations 
under the Protocol. The Committee also did not include an 
identical 60-day prior notice requirement for added locations 
that was set in the Voluntary Offer resolution of ratification 
because locations under the Additional Protocol will be 
provided in an annual report that may well not be finalized 
until a short time before the deadline for submission of that 
report.

Understanding (3). Protection of Classified Information.

    Included in the Senate's resolution of advice and consent 
to the Voluntary Offer was an understanding regarding 
protection of classified information:

          That the agreement shall not be construed to require 
        the communication to the International Atomic Energy 
        Agency of ``Restricted Data'' controlled by the 
        provisions of the Atomic Energy Act of 1954, as 
        amended, including data concerning the design, 
        manufacture, or utilization of atomic weapons. 
        34
---------------------------------------------------------------------------
    \34\ Ibid.

The Committee recommends that a nearly identical provision be 
included in the resolution of ratification for the Additional 
Protocol.

Understanding (4). Protection of Confidential Information.

    The protection of confidential business information is an 
important duty of both the United States Government and the 
Senate. The Committee notes that although Article 1 of the 
Additional Protocol affords the United States special rights to 
protect information ``with direct national security 
significance,'' the same is not true of confidential business 
information. As Secretary Lichtenbaum noted, ``In particular, 
the rights that we have under this treaty to minimize the 
burden and protect confidential information for industry are 
rights that are available to other countries. So it's not that 
we have a right to minimize the burden or protect confidential 
information that they do not have.'' 35
---------------------------------------------------------------------------
    \35\ Part IX, p. 95.
---------------------------------------------------------------------------
    When the Senate passed its resolution of advice and consent 
to ratification of the Convention on the Prohibition of 
Development, Production, Stockpiling and Use of Chemical 
Weapons and on Their Destruction (the CWC) 36 it 
included a condition on the protection of confidential 
information:
---------------------------------------------------------------------------
    \36\ Treaty Doc. 103-21, approved by the Senate on April 24, 1997.
---------------------------------------------------------------------------

PROTECTION OF CONFIDENTIAL INFORMATION--

    (A) Unauthorized Disclosure of United States Business 
Information.--Whenever the President determines that persuasive 
information is available indicating that--
          (i) an officer or employee of the Organization has 
        willfully published, divulged, disclosed, or made known 
        in any manner or to any extent not authorized by the 
        Convention any United States confidential business 
        information coming to him in the course of his 
        employment or official duties or by reason of any 
        examination or investigation of any return, report, or 
        record made to or filed with the Organization, or any 
        officer or employee thereof, and
          (ii) such practice or disclosure has resulted in 
        financial losses or damages to a United States person,

the President shall, within 30 days after the receipt of such 
information by the executive branch of Government, notify the 
Congress in writing of such determination.

The Committee recommends that a nearly identical provision be 
included in the resolution of advice and consent to the 
Additional Protocol.
    The Committee does not recommend Understanding (4) because 
of any concern with regard to IAEA protection of confidential 
information. In fact, the Committee has been informed that the 
IAEA has a consistently positive record with regard to the 
handling of both confidential and classified information 
obtained in the United States. In addition, Article 15 of the 
Additional Protocol calls for the IAEA to ``maintain a 
stringent regime'' to protect such information. In response to 
a Committee Question for the Record, the Administration 
provided information regarding that regime:

          The new regime is substantially more detailed than 
        what existed previously. For example, the new regime 
        includes penalties for IAEA staff found to be in breach 
        of their obligations, including potential exposure to 
        civil and criminal penalties and waiver by the Agency 
        of legal immunities. The IAEA has continued to make 
        regular reports to the Board on its progress in 
        implementing security improvements in such areas.

          The United States has supported and participated in 
        IAEA's efforts in this area. The United States, through 
        its voluntary contribution to the IAEA, has provided 
        technical assistance to the IAEA in improving 
        information security in the Department of Safeguards, 
        including in its safeguards information systems. The 
        IAEA has made substantial and steady progress in 
        implementing the recommendations made. 37
---------------------------------------------------------------------------
    \37\ Part IX, p. 107.

When Committee staff visited the IAEA's Headquarters in Vienna 
and its Safeguards Analytical Laboratory in Seibersdorf, 
Austria, they found that the IAEA goes to great lengths to 
ensure that it maintains a proper chain of custody over 
information gained through inspections, and also to minimize 
the risk that either its own laboratory or cooperating national 
laboratories will know with certainty the origin of the samples 
that they analyze.

Understanding (5). Report on Consultations Regarding Adoption of 
        Additional Protocols in Non-Nuclear Weapon States.

    During briefings and the Committee's hearing on the 
Additional Protocol, officials stated on several occasions that 
the Administration intended to pursue, as a general policy, 
adoption of the Additional Protocol by all non-nuclear weapon 
states party to the NPT. Acting Assistant Secretary of State 
Susan F. Burk testified: ``Senate approval of the Additional 
Protocol will . . . greatly strengthen our ability to promote 
universal adoption of the Model Additional Protocol, a central 
goal of the President's nonproliferation policy.'' Ambassador 
Brooks testified that:

          Achieving the widest possible international adherence 
        to an effective AP [Additional Protocol] materially 
        serves U.S. national security interests . . . The 
        diplomatic reality is that our support for the AP, and 
        our agreement to accept its implementation in the 
        United States in a manner that is appropriate to our 
        status as a nuclear weapons state, has been critical to 
        getting the AP to where it is today. One can only 
        ponder the possible impact of failing to ratify the 
        U.S. AP, for example, on the effort to get Iran and 
        other countries of concern to implement their own 
        Additional Protocols. \38\
---------------------------------------------------------------------------
    \38\ Part IX, p. 63.

---------------------------------------------------------------------------
Ambassador Brooks also cited President Bush in this regard:

          We seek universal acceptance of the Additional 
        Protocol in the international community as an important 
        goal of U.S. national security policy. As the President 
        said in his transmittal package to the Senate, 
        ``Adhering to the Additional Protocol will bolster U.S. 
        efforts to strengthen nuclear safeguards and promote 
        the nonproliferation of nuclear weapons, which is the 
        cornerstone of U.S. foreign and national security 
        policy.'' \39\
---------------------------------------------------------------------------
    \39\ Part IX, p. 62.

    A logical question is how the United States will work to 
achieve universal acceptance of the Additional Protocol. In 
response to a Committee Question for the Record, the 
---------------------------------------------------------------------------
Administration stated that:

          Both when the United States signed its Additional 
        Protocol in 1998, and when President Bush transmitted 
        the Additional Protocol to the Senate in May 2002, U.S. 
        Embassies around the world were asked to press the host 
        countries to adopt the Additional Protocol. We have 
        also raised the issue at appropriate opportunities, 
        such as Assistant Secretary [for Nonproliferation] John 
        Wolf's trip to Argentina and Brazil in May 2003. Since 
        September 2000, when the IAEA adopted an Action Plan to 
        promote adherence to safeguards agreements and 
        Additional Protocols, we have focused on supporting the 
        IAEA's outreach efforts. We participated in IAEA 
        regional outreach seminars in Japan, Peru, Kazakhstan, 
        South Africa, Malaysia, Romania and Uzbekistan and have 
        provided voluntary contributions to support those and 
        other IAEA efforts.

          The United States has stated its strong support for 
        universal adherence to the Additional Protocol. 
        Achieving this goal would be greatly facilitated by 
        ratification of the U.S. Additional Protocol, as 
        signed. Should the Senate give its advice and consent 
        to ratification for the U.S. Additional Protocol, we 
        would initiate another outreach in diplomatic channels 
        to press states to sign and ratify Protocols. 
        40
---------------------------------------------------------------------------
    \40\ Part IX, p. 108.

    On February 11, 2004, in a speech delivered at the National 
Defense University, President Bush increased the pressure on 
non-signatory states. The President proposed ``that by next 
year, only states that have signed the Additional Protocol be 
allowed to import equipment for their civilian nuclear 
programs. Nations that are serious about fighting proliferation 
will approve and implement the Additional Protocol.'' 
41
---------------------------------------------------------------------------
    \41\ The White House, ``President Announces New Measures to Counter 
the Threat of WMD,'' Remarks by the President on Weapons of Mass 
Destruction Proliferation, Fort Lesley J. McNair--National Defense 
University, Washington, D.C.'', February 11, 2004, available at http://
www.whitehouse.gov/news/releases/2004/02/20040211-4.html.
---------------------------------------------------------------------------
    The Committee believes that achievement of universal 
acceptance of the Additional Protocol will be neither quick nor 
easy. In October 2003, in an article in The Economist, IAEA 
Director General Mohammed ElBaradei, noted how few members 
states have actually completed additional protocols:

          Fewer than 20% have finalised an additional 
        protocol--endorsed in 1997 after the discovery of 
        Iraq's clandestine nuclear programme--which gives the 
        IAEA the authority to inspect countries more broadly, 
        particularly for undeclared nuclear material and 
        activities. . . . This sluggish performance on all 
        fronts signals the need for a different approach. 
        Reluctance by one party to fulfil its obligations 
        breeds reluctance in others. Each discovery of a 
        clandestine programme makes us question whether more 
        exist. 42
---------------------------------------------------------------------------
    \42\ Mohammed ElBaradei, ``Towards a Safer World,'' The Economist, 
October 18, 2003.

    Given the importance of universal adoption and adherence to 
the Additional Protocol, to both the United States and the 
IAEA, the Committee recommends an understanding requiring an 
annual report on U.S. measures taken in furtherance of 
universal adoption and implementation of the Additional 
Protocol in non-nuclear weapon states. Such a report will help 
Congress maintain the high priority that this endeavor 
deserves.

Understanding (6). Report on U.S. Assistance to the Agency for the 
        Purpose of Additional Protocol Implementation and Verification 
        of Non-Nuclear Weapon States' Obligations.

    All of the work conducted by the IAEA in verification of 
existing safeguards is carried out under a budget that, as one 
IAEA official told Senate Foreign Relations Committee staff in 
February 2004, ``is less than the budget for Vienna's police 
department.''
    In 1985, the Geneva Group (the 14 largest contributors to 
the United Nations) imposed a policy of ``zero real growth'' on 
the IAEA's budget, save for staff salaries and inflation. 
43 This policy was reversed by the IAEA's Board of 
Governors in July 2003. Remarking on this that decision, 
Director General ElBaradei noted that ``The bulk of the 
increase goes to the verification programme, because that 
programme has been experiencing the greatest demand for 
additional resources and has for years been the most 
chronically under-funded.'' 44
---------------------------------------------------------------------------
    \43\ General Accounting Office, ``Nuclear Nonproliferation: 
Uncertainties With Implementing IAEA's Strengthened Safeguards 
System,'' GAO NSIAD-98-184, July 9, 1998.
    \44\ The International Atomic Energy Agency, ``IAEA Board of 
Governors Recommends Landmark Budget Increase,'' IAEA Press Release 
2003/12, July 18, 2003, available at http://www.iaea.org/NewsCenter/
PressReleases/2003/prn0312.shtml.
---------------------------------------------------------------------------
    The Committee strongly supports the decision to end the 
zero real growth policy, which is consistent with previously-
enacted legislation. 45 As more non-nuclear weapon 
states adopt Additional Protocols, however, the IAEA may 
require more financial resources to carry out expanded 
inspections and verification activities in non-nuclear weapon 
states.
---------------------------------------------------------------------------
    \45\ See section 1305 of P.L. 107-228, The Foreign Relations 
Authorization Act, Fiscal Year 2003.
---------------------------------------------------------------------------
    United States assistance, both in voluntary financial 
contributions above and beyond its assessed share of the IAEA 
regular budget and in the provision of training and services, 
has been vital to the success of the IAEA's safeguards experts. 
Committee staff who visited the IAEA's Safeguards Analytical 
Laboratory found that time after time its analysis depended 
upon equipment and training provided by member states, and 
usually the United States. Continued U.S. assistance to the 
IAEA's safeguards mission will be essential to maintaining that 
capability because states with covert programs will continually 
improve their efforts to thwart IAEA monitoring and 
inspections.
    The Committee believes that continuing attention must be 
paid both to the need for U.S. assistance to the IAEA and to 
the efficiency with which that assistance is used. The 
Committee therefore recommends an understanding requiring an 
annual report on all assistance provided to the IAEA by the 
United States in order to promote effective implementation of 
Additional Protocols in non-nuclear weapon states, and 
verification of such states' compliance with their obligations 
to the IAEA, and (for all but a few states) under the NPT.

Understanding (7). Subsidiary Arrangements and Amendments.

    The Committee notes that Article 13.a of the Additional 
Protocol specifies that the United States has the right to 
enter into subsidiary arrangements with the IAEA on how 
measures laid down in the Protocol are to be implemented. The 
Committee also notes that under Article 16.b changes may be 
made to the lists of equipment and articles in Annexes I and II 
of the Additional Protocol by decision of the IAEA's Board of 
Governors. The Administration transmitted to the Senate, with 
the Additional Protocol and its Annexes, an initial Subsidiary 
Arrangement, signed at Vienna on June 12, 1998, regarding 
measures for managed access under Article 1. 46
---------------------------------------------------------------------------
    \46\ Treaty Doc. 107-7 at p. 4.
---------------------------------------------------------------------------
    The Committee accepts the Administration position that the 
Subsidiary Arrangement transmitted to the Senate should not be 
subject to the Senate's advice and consent. In response to a 
Committee Question for the Record regarding Article 13, the 
Administration stated:

          Subsidiary arrangements under the Additional 
        Protocol, as with those that are periodically 
        negotiated under the existing Safeguards Agreement, are 
        of a detailed technical character and do not change the 
        rights and obligations of the Parties. As such, 
        Subsidiary Arrangements have not been submitted to the 
        Senate for its approval. 47
---------------------------------------------------------------------------
    \47\ Part IX, p. 111.

    The Committee understands this response, but notes that 
this first Subsidiary Arrangement is broadly applicable to use 
of managed access under Article 1. The Committee recommends 
that the resolution of ratification specify the Senate's 
understanding that this Subsidiary Arrangement contains an 
``illustrative, rather than an exhaustive list of U.S. managed 
access measures.''
    Further subsidiary arrangements are, of course, possible. 
the Administration's response to the Committee Question for the 
Record stated:

          No other subsidiary arrangements have been signed or 
        negotiated, nor is the Administration negotiating any 
        such agreement. The Administration is exploring the 
        development of General Part Subsidiary Arrangements, 
        which could include technical matters such as 
        describing reporting formats, to facilitate 
        implementation of the Additional Protocol. 
        48
---------------------------------------------------------------------------
    \48\ Ibid.

    The Committee recommends that the resolution of 
ratification include an understanding that future subsidiary 
arrangements shall be notified to the appropriate Committees of 
Congress, so that they can keep abreast of developments. The 
Committee recommends similarly requiring notification of any 
amendments under Article 16.
    The Committee also notes that the Administration does not 
rule out the need for Senate advice and consent to a future 
subsidiary arrangement. In its response to a Committee Question 
for the Record, the Administration stated: ``The normal factors 
for determining whether an agreement is subject to Senate 
advice and consent would be applied to future subsidiary 
arrangements.'' 49
---------------------------------------------------------------------------
    \49\ Ibid.
---------------------------------------------------------------------------

Understanding (8). Amendments to the Protocol.

    Amendments to the Additional Protocol can be of two sorts: 
amendments to the text of the Additional Protocol; or 
amendments to the lists contained in the Annexes to the 
Additional Protocol. Amendments to the Additional Protocol are 
governed by Articles 23-26 of the Safeguards Agreement between 
the United States and the IAEA, signed in 1977 and entered into 
force in 1980. Article 1.a of the Additional Protocol makes 
clear that provisions of the Safeguards Agreement remain in 
force, unless they are contradicted by the Additional Protocol. 
As the Additional Protocol does not address amendments to its 
text, the relevant provisions of the underlying Safeguards 
Protocol will continue to apply.
    Article 23(b) of the Safeguards Agreement states: ``All 
Amendments shall require the agreement of the United States and 
the Agency.'' Amendments to treaties are ratified (just as 
treaties are ratified in the first instance) ``by and with the 
Advice and Consent of the Senate,'' pursuant to Article II, 
Section 2, Clause 2 of the United States Constitution. The 
Committee intends that Understanding (8) serve, in part, to 
remind the executive branch of this constitutional requirement.
    Article 16 of the Additional Protocol sets forth the 
procedure for amendments to the lists in Annex I and Annex II 
of the Additional Protocol. Annex I contains a list of 
activities on which the United States will have to report 
annually concerning the scope of those activities, pursuant to 
Article 2.a.(iv) of the Additional Protocol. Annex II contains 
a list of equipment and material, the import and export of 
which will be subject to annual reporting by the United States, 
pursuant to Article 2.a.(ix) of the Additional Protocol.
    Article 16.b states that the lists in Annex I and Annex II 
``may be amended by the Board [of Governors of the IAEA] upon 
the advice of an open-ended working group of experts 
established by the Board. Any such amendment shall take effect 
four months after its adoption by the Board.'' In practice, the 
IAEA Board of Governors takes nearly all actions on the basis 
of consensus; but it has the power to take action either by 
majority vote or (for matters that a majority of the Board 
conclude are major issues) by a two-thirds vote. While the 
United States will always be a member of the Board, it does not 
have a veto over the Board's actions if members decide not to 
proceed on the basis of consensus. There is no provision, 
moreover, for U.S. ratification of amendments to the lists in 
Annex I and Annex II. This fact, combined with the short time 
period between adoption of the amendment and entry into force, 
means that the Senate may not be in a position to exercise its 
prerogative to give advice and consent to such amendments prior 
to their entry into force.
    There is precedent for the Senate approving treaties that 
allow for technical modifications by such a ``tacit agreement'' 
process. 50 Due, perhaps, to their complexity and 
technical specificity, a number of arms control and 
environmental agreements establish processes for their own 
modification which do not require further Senate involvement. 
The modifications allowed typically are described as not rising 
to the level of an amendment of the treaties; but, nonetheless, 
the processes permit the treaty regime to evolve in some 
respects without subsequent Senate approval.
---------------------------------------------------------------------------
    \50\ This analysis draws upon Treaties and Other International 
Agreements: The Role of the United States Senate, a study prepared for 
the Committee by the Congressional Research Service of the Library of 
Congress, S. Prt. 106-71 (2001), pp. 181-183. In addition, some of the 
treaties cited are drawn from David A. Koplow, ``When is an Amendment 
Not an Amendment?: Modification of Arms Control Agreements Without the 
Senate,'' University of Chicago Law Review, Vol. 59 (Summer 1992), pp. 
981-1071.
---------------------------------------------------------------------------
     Arms control treaties that allow for technical 
modifications include the Intermediate Nuclear Forces (INF) 
Treaty, the Protocol to the Threshold Test-Ban Treaty (TTBT), 
the Treaty on Conventional Armed Forces in Europe (CFE), the 
first START Treaty, and the Open Skies Treaty. Environmental 
treaties with similar provisions include the United States-
Japan Convention for the Protection of Migratory Birds, the 
United States-Canada Treaty on Pacific Salmon, and the Montreal 
Protocol on Substances that Deplete the Ozone Layer.
    Some agreements explicitly permit certain technical 
modifications to become effective for all parties even absent 
unanimous agreement. These include the Montreal Protocol on 
Substances that Deplete the Ozone Layer, the International 
Convention on Safety of Life at Sea, the Convention on 
Facilitation of International Maritime Traffic, the 
International Hydrographic Organization Convention, the 
Protocol to the Madrid Agreement Concerning the International 
Registration of Marks, and the Chemical Weapons Convention.
    The Senate, in giving its advice and consent to the 
treaties which contain these various processes for 
modification, has not required modifications made to these 
treaties under such processes to be referred to the Senate for 
its advice and consent prior to their coming into force for the 
United States. Rather, in giving its advice and consent to 
these treaties in the first instance, the Senate has also given 
its consent in advance to the modifications adopted pursuant to 
those processes. The tacit amendment process has given the 
Senate some concern, however, and at times the Senate has 
required, or received assurances of, prior notice of proposed 
modifications before the executive branch accepted their 
inclusion in such treaties. The Senate has also at times 
specifically limited its acceptance of future tacit amendments 
to those of a technical or administrative nature.
    Article 16 of the Additional Protocol appears to be 
similarly intended, as the Administration's Article-by-Article 
Analysis of the Protocol states that the Annexes ``provide 
technical definitions.'' The Committee intends that 
Understanding (8) serve, in part, as a reminder to the 
executive branch that amendments to the lists in Annex I and 
Annex II are to be ``technical'' rather than a means to achieve 
major substantive change in the Additional Protocol regime.
    The Committee notes that the substantive purpose of Article 
16, which was strongly supported by the United States when the 
Model Additional Protocol was being negotiated, is to permit 
expansion of Additional Protocol reporting requirements if a 
new approach to developing a nuclear weapons capability should 
arise. The Additional Protocol could be seriously undermined 
if, in such a case, a state engaged in illegal activity were 
able to block, or to exempt itself from a decision to expand 
the reporting requirement. The Committee also notes that, in 
practice, the list in Annex II will be the ``trigger list'' 
maintained by the Nuclear Suppliers Group, which adds items 
only by consensus; so no amendment to that list will occur 
without U.S. support, or at least acquiescence.
    The Committee believes that the Senate has the authority to 
approve a treaty that provides for technical and administrative 
modifications to be adopted by a process that does not give the 
United States a veto power over those modifications. The 
Committee emphasizes that such provisions should be limited, as 
here, to technical or administrative modifications. Of course, 
it reserves the right to accept or reject such provisions in 
future treaties. The Committee encourages the executive branch 
to consult closely with the Committee during the course of 
treaty negotiations when such provisions are contemplated for 
inclusion in future agreements.

               VI. Views of the Armed Services Committee

    Consistent with long-standing practice, the Senate Armed 
Services Committee has submitted a letter detailing the views 
of the Armed Services Committee on the Additional Protocol. 
Chairman John Warner and Ranking Member Carl Levin have 
submitted the following letter to the Committee, which it is 
pleased to include in this report.

                              United States Senate,
                               Committee on Armed Services.

                                                 February 24, 2004.

Hon. Richard G. Lugar, Chairman,
Hon. Joseph R. Biden, Jr., Ranking Member,
Committee on Foreign Relations,
United States Senate,
Washington, D.C. 20510.

Dear Senator Lugar and Senator Biden:
    Traditionally, the Senate Armed Services Committee has 
provided to the Senate Foreign Relations Committee its views on 
the military implications of national security treaties. We are 
writing to express our views concerning the military 
implications of 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 on 
June 12, 1998 (the ``Additional Protocol'').
    We support ratification of the Additional Protocol because 
we believe that it will contribute to the nuclear non-
proliferation objectives of the United States, while providing 
for the full protection of information and facilities of direct 
national security significance to the United States. As 
President Bush stated in his letter of transmittal: ``Adhering 
to the Additional Protocol will bolster U.S. efforts to 
strengthen nuclear safeguards and promote the non-proliferation 
of nuclear weapons, which is a cornerstone of U.S. foreign and 
national security policy.'' The Senate Armed Services Committee 
has a tradition of strong support for U.S. non-proliferation 
efforts. Adoption of the Additional Protocol is consistent with 
that tradition.
    At the end of the Persian Gulf War in 1991, the world 
learned that Iraq had an advanced clandestine program to 
develop nuclear weapons. To increase the capability of the 
International Atomic Energy Agency (IAEA) to detect such 
clandestine nuclear programs, the international community 
negotiated a Model Additional Protocol to strengthen the IAEA's 
nuclear safeguards system. The IAEA uses the Model Additional 
Protocol for negotiation and conclusion of Additional Protocols 
that amend and strengthen states' existing comprehensive 
safeguards agreements. These Additional Protocols broaden the 
information states are required to give to the IAEA and provide 
additional access rights for IAEA inspectors to verify those 
declarations when necessary. Non-nuclear weapon states must 
incorporate all the measures in the Model Additional Protocol 
in negotiating their additional protocols. Nuclear weapon 
states and countries not party to the Treaty on the Non-
Proliferation of Nuclear Weapons (the NPT), however, are free 
to choose among or limit the application of the provisions of 
the Model Additional Protocol, since these nations have not 
made a commitment to place all nuclear activities under 
safeguards. Thus far, 83 nations have negotiated such 
Additional Protocols with the IAEA, and 38 of those nations 
have brought their Additional Protocols into force.
    The U.S. Additional Protocol is a bilateral treaty that 
would supplement and amend the 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, which entered into force on December 9, 1980.
    The NPT requires non-nuclear-weapon states parties to 
accept safeguards on their nuclear activities. The United 
States, as a nuclear-weapon state party to the NPT, is not 
obligated to accept IAEA safeguards on its nuclear activities. 
Nonetheless, it has been the policy of the United States since 
1967 to permit the application of safeguards to its nuclear 
facilities, excluding only those of direct national security 
significance.
    The Additional Protocol similarly allows the United States 
to exclude the application of its provisions in instances where 
the United States decides that the provisions would result in 
access by the IAEA to activities with direct national security 
significance to the United States, or access to locations or 
information associated with such activities. By submitting 
itself to the same safeguards on all of its civil nuclear 
activities that non-nuclear-weapon states parties to the NPT 
are subject to, the United States intends to demonstrate that 
adherence to the Model Additional Protocol does not place other 
countries at a commercial disadvantage. U.S. acceptance of the 
Additional Protocol is consistent with the United States' 
longstanding record of voluntary acceptance of nuclear 
safeguards and greatly strengthens our ability to promote 
universal adoption of the Model Additional Protocol, a central 
goal of U.S. non-proliferation policy.
    Because this Committee has oversight responsibilities for 
the Department of Defense and the Department of Energy nuclear 
weapons complex, we carefully considered whether the Additional 
Protocol could and would be implemented in a fashion that is 
fully consistent with the need to protect national security 
information. We believe that two features of the Additional 
Protocol--the right to invoke the National Security Exclusion 
and the right to manage access to sensitive U.S. locations--
adequately address the security concerns of our Committee.
    During your Committee's hearing of January 29, 2004, on the 
Additional Protocol, the Department of Defense and Department 
of Energy witnesses provided testimony regarding the protection 
of national security information and the impact of the 
Additional Protocol on Department of Energy (DOE) and 
Department of Defense (DoD) facilities.
    Regarding the protection of national security information 
at DOE facilities, National Nuclear Security Administrator at 
the Department of Energy, Ambassador Linton F. Brooks, 
testified:

          At the same time that the Additional Protocol 
        provides the IAEA with important tools to ferret out 
        undeclared military activities in non-nuclear weapons 
        states, the Additional Protocol also includes a set of 
        ``robust mechanisms'' by which DOE can protect its 
        commercially sensitive, export-controlled, and 
        classified assets. The first method is managed access, 
        also referred to as ``Article 7 managed access.'' This 
        managed access involves a wide range of measures, such 
        as shrouding, closing doors, or turning off computers 
        and other equipment to prevent IAEA inspectors from 
        coming into contact with ``proliferation sensitive 
        information or proprietary or commercially sensitive 
        information.'' Second, the United States can 
        unilaterally, and without explanation, invoke a 
        National Security Exclusion (NSE) under Article 1 that 
        enables the U.S. not to declare or allow IAEA 
        complementary access to ``activities with direct 
        national security significance to the United States or 
        to locations or information associated with such 
        activities.''

          Third, under Article I, the United States also has 
        the right to use managed access associated with the 
        NSE. Managed access under Article 1 is more robust than 
        the Article 7 managed access. We would employ this 
        managed access under Article 1 of the Additional 
        Protocol only where our security evaluation shows that 
        such managed access would mitigate, in a manner 
        acceptable to us, any risk of inadvertent disclosure of 
        national security activities or information to the 
        inspector. I would reiterate that the use of the NSE or 
        managed access under the NSE is entirely unilateral, 
        and the IAEA has no right to challenge or question the 
        U.S. invocation of the National Security Exclusion. 
        With managed access and the National Security Exclusion 
        rights combined with Additional Protocol-specific 
        security plans and DOE's past experience with IAEA 
        inspections, DOE is confident that it can fully manage 
        the risks associated with the Additional Protocol.

    Regarding the protection of national security information 
at DoD facilities, Deputy Assistant Secretary of Defense for 
Negotiations Policy, Mark T. Esper testified:

          The Administration fully recognizes that adopting an 
        instrument designed to detect the diversion of nuclear 
        material in non-nuclear weapons states is not without 
        risk. The potential intrusiveness of the Additional 
        Protocol both in terms of declaring activities and 
        allowing access by inspectors is significant. However, 
        we are confident that liberal use of the protections 
        afforded the United States by way of the National 
        Security Exclusion and the use of managed access to 
        protect sensitive information and activities can 
        mitigate this risk--The United States will make full 
        and repeated use of these provisions to protect 
        information, locations, and activities of direct 
        national security significance . . . The National 
        Security Exclusion is a critical protection for the 
        United States. Under this provision, the United States 
        can exclude information and activities from 
        declarations and deny access to IAEA inspectors 
        anytime, anyplace.

    In considering the Additional Protocol, the Committee 
focused primarily on national security concerns, but our 
oversight responsibilities also required us to seek information 
regarding the costs associated with implementing the Additional 
Protocol. Regarding costs to DOE, Administrator Brooks 
testified: ``In addition to the cost in time and effort, there 
will be a financial cost to implement the Additional Protocol. 
Current budget estimates indicate that the Department will 
require approximately $3.5 million for headquarters, including 
the funds already allocated, to prepare the complex. In 
addition, the up-front preparation costs for each site, 
including the cost of comprehensive vulnerability and security 
assessments will be an estimated $220 thousand per site, for a 
total of approximately $10 million.''
    Mr. Esper did not explicitly address the financial costs 
DoD may incur in connection with the Additional Protocol in his 
testimony before your Committee. However, DoD officials have 
subsequently indicated to our Committee that the Department 
currently estimates that costs in the first four years after 
the Protocol is ratified could be in the range of $13-18 
million annually, and $6-9 million annually beginning in year 
five. These costs would ensue primarily from the need to 
conduct vulnerability assessments at DoD sites or at DOE or 
contractor sites where DOD is engaged.
    The Committee views these as reasonable and appropriate 
costs, in light of the expected non-proliferation benefits that 
will result from U.S. ratification of the Additional Protocol.
    In sum, we found the testimony of Administration witnesses 
compelling both in making the case for the non-proliferation 
benefits of adopting the Additional Protocol due to the 
increased transparency and enhanced inspection rights such 
Additional Protocols will provide to the IAEA in non-nuclear 
weapon states, and in making clear that the provisions for a 
National Security Exclusion and for managed access to sensitive 
locations will ensure that risks to the United States are 
mitigated and U.S. national security information will be 
protected. The Committee expects the executive branch to make 
full use of these features, as necessary, to protect critical 
national security information. We believe the resolution of 
ratification should make clear that it is the intent of the 
United States to make full use of these provisions for a 
National Security Exclusion and for managed access in order to 
protect information, locations, and activities of direct 
national security significance to the United States.
    Several administration witnesses, including Mr. Esper, also 
noted the interest of the United States in protecting 
information reported to or otherwise acquired by the United 
States Government in implementing the Additional Protocol from 
disclosure under the Freedom of Information Act as proposed in 
the draft implementing legislation. We believe that the 
provision included in the draft implementing legislation 
exempting this non-governmental information from disclosure is 
important and should be included in the final implementing 
legislation.
    Based on the testimony of administration witnesses, and 
subsequent analysis, we believe the Additional Protocol 
advances the national security interests of the United States 
and deserves the Senate's support. U.S. ratification of the 
Protocol will demonstrate the United States' continued 
leadership in, and commitment to, non-proliferation. Adoption 
of the Additional Protocol by the United States will facilitate 
adoption of the Model Protocol by non-nuclear weapon states and 
thus will provide the IAEA an important tool to help detect and 
deter proliferation of the technology and materiel needed for 
nuclear weapons. We are convinced that adequate protections 
have been incorporated into the Protocol signed by the United 
States to allow the United States to prevent the compromise of 
sensitive activities and information.
    We ask your consideration of our views as you draft the 
resolution of ratification and the implementing legislation for 
this Protocol, and ask that this letter be included in the 
official report of your Committee's consideration of the 
Additional Protocol. We appreciate the opportunity to share our 
views with you.

        Sincerely,
                                               John Warner,
                                                          Chairman.
                                                Carl Levin,
                                                    Ranking Member.

                         VII. CBO Cost Estimate

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.

                                                 November 10, 2003.

Dr. Douglas Holtz-Eakin, Director,
Congressional Budget Office,
Washington, DC.

Dear Dr. Holtz-Eakin:

    As the Committee on Foreign Relations prepares to begin its 
consideration of the Protocol to the Agreement of the 
International Atomic Energy Agency (IAEA) Regarding Safeguards 
in the United States (the Additional Protocol), which the 
President submitted to the Senate on May 9, 2002 for its advice 
and consent to ratification, we ask for your assistance in 
evaluating the Additional Protocol. In order to help the 
Committee during its consideration of this agreement, the 
Committee requests that the Congressional Budget Office conduct 
an assessment of the costs associated with the implementation 
of the Additional Protocol for inclusion in its report on this 
agreement.
    The Additional Protocol provides for augmented inspections 
and broader requirements on parties to the Treaty on the 
Nonproliferation of Nuclear Weapons (NPT). Since the 1991 
Persian Gulf War, and the revelations about the ability of non-
nuclear weapons states (NNWS) to carry out clandestine nuclear 
activities that may lead to the development of nuclear weapons 
under existing safeguard arrangements, the IAEA has been 
negotiating with parties to the NPT to implement improved 
inspections and declarations through adoption of model or 
additional protocols. Broadly, a model/additional protocol 
would require states to make more extensive declarations 
concerning their presumably peaceful nuclear activities and 
provide the IAEA with more intrusive inspection rights.
    The United States, as a declared nuclear-weapon state 
(NWS), is not obligated to accept IAEA safeguards on its 
nuclear activities, and also under its Additional Protocol will 
have the right to exclude nuclear facilities and activities of 
direct national security significance. The Committee has been 
informed by the Administration that the likelihood of there 
actually being an inspection of U.S. facilities under its 
Additional Protocol is very low. Nevertheless, important 
questions pertaining to the cost of conducting inspections in 
the United States, and in other NWS and NNWS, remain. I have 
enclosed a list of such questions with this letter and hope 
that your analysis will be able to help the Committee answer 
many of them.
    I look forward to receiving your analysis early in 2004 so 
that the Committee can move forward with its recommendations 
regarding action on the Additional Protocol in the early part 
of 2004.
    If you or your staff have any questions concerning this 
request, please contact the Committee's Staff Director, Kenneth 
A. Myers, Jr., or Committee staff members Kenneth A. Myers, 
III, and Thomas C. Moore, at (202) 224-4651. Additionally, my 
staff are ready to meet with representatives from the Defense, 
International Affairs, and Veterans' Affairs Cost Estimate Unit 
of the Budget Analysis Division to discuss this request.

        Sincerely,
                                          Richard G. Lugar,
                                                          Chairman.

Enclosures (1)

                                ------                                


QUESTIONS CONCERNING COSTS ASSOCIATED WITH U.S. AND IAEA IMPLEMENTATION 
           OF THE ADDITIONAL PROTOCOL WITH THE UNITED STATES

    1. Does the CBO concur with the IAEA's assessment of the 
costs that will be incurred in order for it to carry out 
additional inspections under Model Aditional Protocols either 
in the United States or in other member states?
    2. Would the inspections carried out under the Additional 
Protocol with the United States, or with other parties to the 
NPT (NWS or NNWS), require increases in the US annual 
contribution to the IAEA's safeguards budget?
    3. Does the U.S. Government have in place all needed staff, 
facilities, and adequate budget resources such that, if, under 
the unlikely scenario that an Additional Protocol inspection 
were carried out in the United States in the next six months, 
such inspections could be adequately supported and U.S. 
national security information be protected?
    4. A key contention of the IAEA is that any additional 
costs needed to carry out inspections under Additional 
Protocols would be offset by efficiencies gained in safeguard 
operations. Does the CBO concur?
    5. Does the IAEA have in place necessary arrangements to:
          a. Identify the total resource requirements for 
        implementing new inspections;
          b. Provide an implementation schedule, with metrics 
        and equipment, to carry out additional inspections and 
        accurate costs for associated equipment;
          c. Compose a schedule and prioritize countries with a 
        model/additional protocol in force where inspections 
        would need to be conducted.
    6. What impact, if any, will the IAEA Board of Governor's 
decision of July 2003 to reverse the Agency's policy of zero 
real growth in its budget have on the ability of the Agency to 
carry out inspections under Additional Protocols with member 
states?

                                ------                                


                                     U.S. Congress,
                               Congressional Budget Office,
                                                    Washington, DC.

                                                     March 5, 2004.
Hon. Richard G. Lugar, Chairman,
Committee on Foreign Relations,
United States Senate,
Washington, DC.

Dear Mr. Chairman:

    In response to your request, the Congressional Budget 
Office has prepared the attached analysis of the costs 
associated with ratifying the Protocol Additional to the 
Agreement Between the United States of America and the 
International Atomic Energy Agency Regarding Safeguards in the 
United States (Treaty Document 107-7). CBO estimates that one-
time costs to the U.S. government for implementing the 
Additional Protocol would total between $20 million and $30 
million, and recurring costs would total between $10 million 
and $15 million a year. Those costs would come from 
appropriated funds. CBO does not anticipate that any direct 
spending would result from ratification of the protocol.
    If you would like further information about this analysis, 
we would be pleased to provide it. The CBO staff contact is 
Raymond J. Hall.

        Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.

Attachment.

 The Cost of Implementing the Additional Protocol to the Treaty on the 
                  Non-Proliferation of Nuclear Weapons


                                SUMMARY

    On June 12, 1998, the United States signed the Protocol 
Additional to the Agreement Between the United States of 
America and the International Atomic Energy Agency (IAEA) 
Regarding Safeguards in the United States (commonly referred to 
as the Additional Protocol). The Additional Protocol is a 
bilateral agreement that would supplement and amend the 
verification arrangements that exist under the current 
agreement between the United States and the IAEA. The IAEA 
operates under the auspices of the United Nations and serves as 
the global focal point for counterproliferation activities.
    All 135 member countries of the IAEA, including the United 
States, bear the direct costs for financing the IAEA's 
operations. The IAEA budget for 2004 totals $385 million, with 
the likely contribution from the United States totaling $118 
million. The IAEA budget pays for several activities, including 
safeguard programs that verify through an inspection system 
that countries comply with their commitments to use nuclear 
material and facilities only for peaceful purposes. About $160 
million of the $385 million budget has been allocated to those 
safeguard programs--for the salaries of about 230 inspectors 
and 200 administrative personnel, the cost of conducting 
roughly 900 inspections worldwide each year, and the cost of 
purchasing safeguard equipment.
    Implementing the Additional Protocol in the United States 
would increase costs to the federal government in two ways, the 
Congressional Budget Office (CBO) estimates. First, the IAEA 
would incur costs to inspect additional facilities, which would 
most likely be borne by the United States. On the basis of 
information provided by the IAEA, CBO estimates that those 
costs would be about $240,000 a year. Second, CBO estimates 
that several U.S. agencies would incur costs to implement the 
new safeguard measures required by the Additional Protocol. On 
the basis of data provided by those agencies, CBO estimates 
that one-time start-up costs in 2005 would total between $20 
million and $30 million, and recurring costs thereafter would 
total between $10 million and $15 million a year. Most of those 
costs would be associated with protecting national security 
interests and helping to protect companies' proprietary 
information.
    CBO also examined the potential impact on U.S. payments to 
the IAEA if the agency implemented additional protocols with 
other member countries. CBO expects that implementing the 
Additional Protocol with other member countries would increase 
the IAEA's operating costs. Whether those additional costs 
affected U.S. payments to the IAEA would depend on how those 
costs were paid for, however. If host countries fully 
reimbursed the IAEA for the costs of the additional 
inspections, U.S. payments to the agency would not increase. If 
countries failed to fully reimburse the IAEA for those 
inspections, the agency would need to include the costs in its 
regular budget or solicit additional voluntary contributions. 
The IAEA Board of Governors recently approved a $20 million 
increase in the agency's regular budget for 2004 and plans to 
increase that budget by another $5 million by 2007. CBO 
estimates that the U.S. share of that increase will total about 
$6 million a year. The IAEA hopes that the budget increases 
will cover the costs of the additional inspections outside the 
United States, but that outcome is not assured because the 
number of additional inspections that might be necessary is 
very uncertain.
    Finally, CBO examined the ability of the U.S. government to 
support the Additional Protocol. On the basis of information 
from the State Department and other U.S. agencies, CBO believes 
that the United States could provide all needed staff and 
adequate budget resources to support the IAEA inspections that 
are likely under the Additional Protocol and to protect U.S. 
national security interests. Although CBO believes that the 
IAEA is ready to implement the broader safeguard measures in 
the United States, it has no basis for determining the IAEA's 
readiness to implement those measures in other countries.

       THE IAEA AND THE ESTABLISHMENT OF INTERNATIONAL SAFEGUARDS

    The International Atomic Energy Agency was created in 1957 
and is an affiliated agency of the United Nations that serves 
as the global headquarters for counterproliferation activities.
    By 1964, five countries--the United States, Russia, the 
United Kingdom, France, and China--had acquired nuclear 
weapons. The United States and many other U.N. members were 
concerned that the number of countries with nuclear weapons 
could increase to around 30 by the 1980s. Those fears led to 
growing support for legally binding, international commitments 
and comprehensive safeguards to stop the further spread of 
nuclear weapons and to work toward their eventual elimination.
    As a result, the Nuclear Non-Proliferation Treaty (NPT) was 
adopted in 1968 with the aims of preventing the spread of 
nuclear weapons and weapon technology, fostering the peaceful 
uses of nuclear energy, and furthering the goal of achieving 
general and complete disarmament. Today, nearly every country 
in the world is a signatory to the NPT. (Exceptions are India, 
Israel, and Pakistan, which never signed the treaty, and North 
Korea, which recently withdrew from the treaty.)
    Every signatory of the NPT that does not have nuclear 
weapons is required to conclude a comprehensive safeguard 
agreement with the IAEA. Today, nearly all countries have done 
so, including the United States and the other four nations that 
possess nuclear weapons, which have agreed to accept safeguards 
on certain peaceful nuclear activities.

            NPT AND THE IAEA SAFEGUARDS IN THE UNITED STATES

    The IAEA safeguards are a set of technical measures and 
activities by which the agency seeks to verify that nuclear 
material identified by each country is not diverted to nuclear 
weapons. Those safeguard measures include using physical 
barriers to control access to and the movement of nuclear 
material, using cameras to detect the movement of nuclear 
material, and conducting on-site inspections.
    Under the terms of the NPT, the United States, Russia, the 
United Kingdom, France, and China are not subject to IAEA 
inspections. Instead, they voluntarily submit to inspections as 
a demonstration of cooperation with the IAEA and a show of 
support for safeguards. Since 1967, the United States has 
permitted inspections of its nuclear facilities--both public 
and private--excluding only those with direct national security 
significance. The existing safeguard agreement between the IAEA 
and the United States (sometimes called the Voluntary Offer) 
has been in effect since 1980.
    Under the Voluntary Offer, the United States provided a 
list of roughly 245 commercial and governmental facilities that 
would be made available for IAEA inspections. All sites under 
the jurisdiction of the Department of Defense (DoD) were 
exempted from those inspections under National Security 
Exclusions. Since 1981, the IAEA has inspected 19 U.S. nuclear 
facilities: six civil nuclear reactors, six fuel-fabrication 
plants, six Department of Energy (DOE) facilities, and one 
additional site. In recent years, the IAEA has inspected four 
facilities that hold or process nuclear materials in excess of 
defense needs--the Y-12 National Security Complex in Oak Ridge, 
Tennessee; the Savannah River Site near Aiken, South Carolina; 
the Hanford Site in southeastern Washington State; and the BWX 
Technologies facility in Lynchburg, Virginia.

                     THE MODEL ADDITIONAL PROTOCOL

    Most countries abide by their commitments to the IAEA and 
the NPT, but the IAEA safeguards attempt to also deal with 
those that do not. In the aftermath of the 1990 Gulf War, it 
became clear that Iraq's nuclear program was more advanced than 
had been previously assessed through regular IAEA inspections 
of declared facilities. That revelation pointed to important 
limitations of the safeguard agreements in place at the time. 
Those agreements focused on verifying declared nuclear material 
and activities rather than on addressing undeclared nuclear 
activities. Although the IAEA has taken steps to address those 
undeclared activities, continued shortcomings have led the 
United States to propose, and the international community to 
negotiate, measures to strengthen safeguards, including 
development of the Model Additional Protocol. That protocol 
forms the basis for the Additional Protocol to the Treaty on 
the Non-Proliferation of Nuclear Weapons Between the United 
States and the IAEA.
    The objective of the Model Additional Protocol is to verify 
the absence of undeclared nuclear activities in countries that 
do not have nuclear weapons. The Model Additional Protocol 
gives IAEA inspectors broader access to information about 
member countries' nuclear programs and broader physical access 
to both declared and undeclared locations. Under the protocol, 
countries not possessing nuclear weapons must provide 
declarations about all phases of their civil nuclear fuel cycle 
and related research and development. 1 They must 
also provide declarations about other locations where nuclear 
material intended for peaceful purposes is present and about 
the manufacture and export of materials, equipment, and 
facilities especially designed for nuclear use. That model 
protocol is the first major change to the IAEA safeguard system 
in 25 years.
---------------------------------------------------------------------------
    \1\ The nuclear fuel cycle refers to the series of steps that 
uranium goes through to be processed into an efficient fuel for use in 
applications such as the generation of electricity and in weapons.
---------------------------------------------------------------------------
    Today, 78 countries have signed a Model Additional Protocol 
with the IAEA. The agency's goal is to have additional 
protocols signed with the remaining countries by 2005.

           THE ADDITIONAL PROTOCOL BETWEEN THE UNITED STATES
                              AND THE IAEA

    The U.S. Additional Protocol is based on the Model 
Additional Protocol but has some added features. Like the 
previous safeguard agreement, it exempts locations and 
activities of direct national security significance to the 
United States. In addition, the U.S. Additional Protocol 
protects commercial interests by restricting access to 
companies' confidential information.
    In implementing the U.S. Additional Protocol, the U.S. 
government would initially provide the IAEA with a list of both 
public and private facilities that are declared sites under the 
protocol and, therefore, subject to inspection. Those sites 
would include private nuclear reactors, commercial facilities 
that manufacture parts used in the production of nuclear 
reactors, facilities that enrich or convert uranium, and 
universities that are conducting nuclear research. According to 
the Department of State, recent estimates place the potential 
number of sites that could be subject to the IAEA safeguards 
under the Additional Protocol at about 1,775. (About 1,000 of 
those sites are abandoned uranium ore mines, which would 
probably not be inspected.) The United States would be required 
to provide that list to the IAEA no more than 180 days after 
the United States declared that the Additional Protocol would 
take effect.

                            THE IAEA BUDGET

    The International Atomic Energy Agency prepares a regular 
budget each year to fund its programs. Every member country 
contributes to the regular budget based on an agreed assessment 
percentage. The IAEA also funds its programs through voluntary 
contributions from some countries, including the United States. 
Funding for the IAEA's programs provided though both its 
regular budget and voluntary contributions has increased from 
about $290 million in 1995 to $385 million in 2004. Using 
information provided by the IAEA and the State Department, CBO 
estimates that the IAEA will spend about $160 million (or about 
40 percent) of its $385 million budget on safeguard programs in 
2004.
    The IAEA's regular budget, which pays for safeguard costs 
along with the costs of science, safety, health, and 
environment programs, has grown from $205 million in 1995 to 
$245 million in 2003 because of agreements between the agency 
and its member countries to maintain an almost ``zero-real-
growth'' budget over that period. Under that policy, the IAEA 
could only increase its budgets from year to year to adjust for 
the impact of inflation on such items as salaries and 
purchases. As a result, the agency has grown more dependent on 
voluntary contributions. Those contributions increased from 
about $87 million in 1995 to an estimated $120 million in 2004, 
primarily to support rising costs in the safeguard programs.
    In light of the expansion of the IAEA's safeguards over the 
past 10 years, the agency's Board of Governors approved a real 
increase in the regular budget beginning in 2004. The budget 
rose to $265 million in 2004 and will increase by another $5 
million (to $270 million) by 2007. According to the IAEA, about 
$19 million of that increase will be allocated to safeguard 
programs.

                       U.S. SPENDING FOR THE IAEA

    The U.S. government provides funds in support of the IAEA's 
activities in three ways. First, since the IAEA is an 
affiliated agency of the United Nations, the United States 
makes payments toward the IAEA's regular budget as a member of 
the United Nations. Second, the United States makes voluntary 
contributions to the IAEA to help the agency meet its safeguard 
commitments. Finally, the U.S. Congress appropriates funds to 
federal agencies to pay for programs that support the IAEA's 
activities.

              THE U.S. SHARE OF THE IAEA'S REGULAR BUDGET

    Historically, the United States has paid about 26 percent 
of the IAEA's regular budget. That share amounts to $68 million 
in 2004.
    The U.S. share of the IAEA's regular budget is paid from 
the ``Contributions to International Organizations' account in 
budget function 150 (international affairs), which is funded 
through annual appropriations to the State Department. Under a 
deferred-payment policy that has been in effect since the 
1980s, the United States will use fiscal year 2005 
appropriations to pay its 2004 assessment. the Administration's 
2005 budget requests about $69 million for that 
assessment'slightly higher than the IAEA assessment of $68 
million. Such differences arise because of varying assumptions 
about exchange rates.

                    THE U.S. VOLUNTARY CONTRIBUTION

    The United States has long been the largest contributor to 
the IAEA's budget. Voluntary contributions to the agency from 
all nations totaled about $120 million in 2003. Historically, 
the U.S. voluntary contribution has averaged about 45 percent 
of the IAEA's total voluntary contributions.
    For 2004, the U.S. voluntary contribution will total $53 
million, the amount appropriated by the Congress. That 
contribution is made from the ``Non-Proliferation, 
Antiterrorism, Demining, and Related Projects'' (NADR) account 
in budget function 150 (international affairs), which is funded 
through annual appropriations to the State Department.

       OTHER U.S. COSTS RELATED TO THE IAEA'S SAFEGUARD PROGRAMS

    Besides contributing to the IAEA's regular budget and 
making additional voluntary contributions, the United States 
has historically allocated funds every year to U.S. government 
agencies to support the IAEA's safeguard activities. In 2004, 
DOE, DoD, the State Department, and the Nuclear Regulatory 
Commission (NRC) spent about $40 million to support the IAEA's 
inspections within the United States (see Table 1).
    DOE plans to spend $34 million in 2004 on international 
safeguard programs. Those programs provide technology and 
expertise to strengthen IAEA's ability to detect undeclared 
nuclear material, support U.S. initiatives to promote adherence 
to the Nuclear Non-Proliferation Treaty and IAEA safeguard 
agreements, and oversee the implementation of those safeguards 
at U.S. facilities.
    DoD plans to spend about $5 million in support of IAEA 
efforts in 2004, performing environmental sample analysis in 
the United States for the IAEA. Currently, the Air Force's 
Technical Applications Center conducts about 400 sample 
analyses a year.
    In 2004, the NRC plans to spend about $1 million from its 
international nuclear safety support program to support IAEA 
safeguards. About four people will work with the IAEA 
inspectors full-time on nuclear security and proliferation 
activities.
    Finally, the State Department's Bureau of Non-Proliferation 
plans to spend about $25 million in 2004 on efforts to reduce 
threats to the United States and its allies from the 
proliferation of nuclear, biological, and chemical weapons. On 
the basis of information provided by the State Department, CBO 
estimates that 10 to 15 people will support the IAEA's efforts 
in the United States and abroad at a cost of about $2 million a 
year.

                   Table 1. Inspection Activities and Costs Related to IAEA Safeguards in 2004
----------------------------------------------------------------------------------------------------------------
                                                                           Nuclear
                                             Department    Department    Regulatory    Department       Total
                                              of Energy    of Defense    Commission     of State
----------------------------------------------------------------------------------------------------------------
Number of U.S. Sites Currently Eligible              35             a           210             0           245
 for IAEA Inspections.....................
Number of U.S. Sites Currently Inspected              3             0             1             0             4
 by IAEA Each Month.......................
U.S. Agency Costs (Millions of dollars)...           34             5             1             2            42
----------------------------------------------------------------------------------------------------------------
Source: Congressional Budget Office based on data provided by the State Department and the Administration's 2005
  budget justification materials.
a. DoD applies the National Security Exclusion to all of its facilities.

THE COST TO THE FEDERAL GOVERNMENT OF IMPLEMENTING THE U.S. ADDITIONAL 
                                PROTOCOL

    Implementing the Additional Protocol in the United States 
would increase costs to the federal government in two ways. 
First, the IAEA would incur costs to inspect more facilities in 
the United States. CBO estimates that those costs--about 
$240,000--would most likely be recouped by an increase in 
either the IAEA's regular budget or the U.S. voluntary 
contribution. Second, CBO estimates that several U.S. agencies 
would incur costs for implementing the new safeguard measures. 
CBO estimates that one-time start-up costs in 2005 would total 
between $20 million and $30 million and recurring costs 
thereafter would total between $10 million and $15 million a 
year.

                     INCREASE IN COSTS TO THE IAEA

    Today, the IAEA conducts monthly inspections at three DOE 
sites and one commercial site. On the basis of information 
provided by the IAEA, CBO expects that any additional 
inspections that the agency would conduct under the Additional 
Protocol would be made in conjunction with those ongoing 
monthly visits to the United States. According to the IAEA, 
inspectors would probably travel to one additional commercial 
site during each visit to the United States. Information from 
the agency leads CBO to assume that a team of about 10 
inspectors would spend one additional day in the United States 
conducting such an inspection, at a cost of about $20,000. 
Since IAEA inspectors come to the United States 12 times a year 
to visit four sites under existing safeguards, the costs of 12 
additional site inspections would amount to about $240,000 a 
year, CBO estimates. The IAEA could recoup those costs either 
by increasing its regular budget or by asking the United States 
to raise its voluntary contribution. Consistent with the United 
States' current practice of completely reimbursing the IAEA for 
those expenses, CBO expects that the United States would pay 
for those costs. (The contributions would come from the State 
Department's NADR account.)
    CBO's estimate of the IAEA's costs to carry out additional 
inspections in the United States is similar to the agency's 
estimate of between $100,000 and $200,000.

                   INCREASE IN COSTS TO U.S. AGENCIES

    Implementing the Additional Protocol in the United States 
could also affect the budgets of the Department of Energy, the 
Department of Defense, the Department of Commerce (DOC), and 
the Nuclear Regulatory Commission. Taken together, the one-time 
start-up costs to those agencies of implementing the Additional 
Protocol would total between $20 million and $30 million in 
2005, CBO estimates, and annual recurring costs would total 
between $10 million and $15 million after that. The estimate 
for each agency is discussed below.

Department of Energy

    According to DOE, the number of its sites that would be 
eligible for inspections under the Additional Protocol would 
not change from today's level. From discussions with DOE, CBO 
anticipates that the costs to the department attendant with 
implementing the Additional Protocol would be those associated 
with conducting vulnerability assessments at roughly 35 
facilities. Those assessments would be conducted to ensure that 
national security and commercial propriety information are 
protected. On the basis of information provided by DOE, CBO 
expects that the department would conduct each assessment using 
a team of approximately 10 engineers and that each assessment 
would take about five working days to complete and cost, on 
average, about $220,000. Assuming that DOE needs to conduct 
about 50 assessments (one or two at each of its 35 sites), the 
one-time costs for those initial assessments would total about 
$11 million in 2005, CBO estimates. DOE indicates that it would 
also conduct outreach efforts to help contractors prepare for 
the IAEA inspections. CBO estimates that those efforts would 
cost about $1 million. In total, CBO estimates, the one-time 
start-up efforts would cost about $12 million. DOE indicates 
that it would also need to conduct follow-up vulnerability 
assessments each year in support of the additional protocol. On 
the basis of information provided by DOE, CBO expects that the 
department would conduct annual follow-up assessments at about 
10 sites a year. A follow-up assessment would cost about 
$220,000. Thus, CBO estimates that the annual recurring costs 
of those follow-up assessments would total about $2 million a 
year.

Department of Defense

    DoD plans to apply the National Security Exclusion to all 
of its facilities, making none of them available to IAEA 
inspectors. However, DoD also has concerns about protecting 
national security interests at DOE labs, universities, fuel-
fabrication plants, and commercial manufacturing sites made 
available for inspections under the Additional Protocol, 
because many of those sites perform work for DoD. (Information 
provided by the State Department indicates that the number of 
sites could exceed 500.)
    DoD expects to have to conduct vulnerability assessments at 
some of those 500 sites. Each assessment would probably cost 
between $80,000 and $400,000, depending on the complexity of 
the assessment and whether DoD used contractor personnel. 
Current staffing levels could not complete the additional 
vulnerability assessments in a timely manner, and contractors 
would most likely be hired to conduct many of those 
assessments. DoD provided no information on the possible number 
of assessments that might be conducted in a year but indicated 
that the number would remain steady for the foreseeable future. 
Assuming that DoD conducts 25 to 50 vulnerability assessments a 
year, CBO estimates that the cost of those assessments would 
total between $5 million and $15 million a year.

Nuclear Regulatory Commission

    The NRC expects that 30 additional facilities that it 
licenses would become eligible for IAEA inspections. According 
to the commission, it would be responsible for revising 
regulations to include the new requirements for implementing 
the Additional Protocol. NRC staff would also prepare guidance 
documents for IAEA access to commercial licensees and new 
reporting requirements. Recurring efforts would involve 
overseeing the information provided by licensees directly to 
the Web-based reporting system run by the Department of 
Commerce. The NRC estimates that those activities might require 
hiring one additional full-time employee. On the basis of 
information provided by the NRC, CBO estimates that the 
commission's cost to implement the Additional Protocol would 
total about $200,000 a year.

Department of Commerce

    DOC's Bureau of Industry and Security would assist U.S. 
firms in complying with the IAEA's safeguard programs. 
Information provided by DOC indicates that about 500 commercial 
sites and 1,000 abandoned uranium mines could be made available 
for IAEA inspections. The IAEA does not inspect any of those 
commercial sites today, but DOC indicates that the IAEA would 
be likely to visit some of those sites under the new measures.
    The Additional Protocol would require the nuclear 
industry--including public and private fuel-cycle facilities 
and nuclear power plants--to report certain information to the 
Department of Commerce. DOC is developing a new database 
specifically to support the reporting requirements of the 
Additional Protocol, called the Additional Protocol Reporting 
System (APRS). DOC estimates that the one-time cost for 
developing the APRS will total about $2 million. DOC also 
estimates that additional one-time costs for outreach, 
training, and inspection support activities at the commercial 
facilities could total $1 million in 2005. The department 
expects to spend about $1 million a year thereafter for 
continuing the training efforts and maintaining the APRS 
database.

   THE COST TO THE PRIVATE SECTOR AND STATE AND LOCAL GOVERNMENTS OF 
               IMPLEMENTING THE U.S. ADDITIONAL PROTOCOL

    The Additional Protocol would require the commercial 
nuclear industry, including public and private fuel-cycle 
facilities and nuclear power plants, to submit to inspections 
by the IAEA. Affected facilities, in conjunction with the 
Nuclear Regulatory Commission, would certify their operations, 
allow the IAEA to inspect them, and report certain information 
to the Department of Commerce. According to industry sources, 
the NRC, its licensees, and certain related facilities already 
maintain the information that would have to be reported and 
have experience conducting similar types of inspections. The 
nuclear industry does not expect that the Additional Protocol 
would have a significant impact on the fees licensees pay to 
the NRC. Consequently, CBO estimates that the cost to nuclear 
facilities, both public and private, to comply with the 
protocol would be minimal. The Additional Protocol would not 
affect the budgets of the state and local commissions that 
regulate utilities.

                              OTHER ISSUES

    Implementing the additional protocols with other member 
countries would also increase the IAEA's operating costs. Those 
added costs could affect U.S. payments to the agency, depending 
on how those costs were financed. Possible scenarios include:

   A host country could fully reimburse the IAEA for 
        the associated inspection costs, similar to the 
        arrangement that currently exists between the United 
        States and the agency. In that case, U.S. payments to 
        the IAEA would not increase.

   A host country could fail to fully reimburse the 
        IAEA for those inspections. The agency would thus need 
        to increase its regular budget or solicit larger 
        voluntary contributions to cover the costs. As 
        mentioned earlier, the IAEA Board of Governors approved 
        a $20 million increase in the regular budget for 2004 
        and plans to increase it by another $5 million by 2007. 
        CBO estimates that the U.S. share of that increase will 
        total about $6 million a year. The IAEA hopes that the 
        budget increases will cover the costs of the additional 
        inspections, but that outcome is not assured because 
        the number of additional inspections that might be 
        necessary is very uncertain.

    CBO also assessed the ability of the U.S. government and 
the IAEA to support the Additional Protocol. On the basis of 
information from the State Department and other U.S. agencies, 
CBO believes that the United States government has made 
sufficient plans to ensure that necessary staff and budget 
resources will be available to support the IAEA inspections 
that might occur under the Additional Protocol and to protect 
U.S. national security interests.
    Finally, CBO believes that the IAEA is ready to implement 
the broader safeguard measures under the Additional Protocol in 
the United States. However, CBO has no basis for determining 
the IAEA's readiness to implement the broader safeguard 
measures in other countries.

                    VIII. Resolution of Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO CONDITIONS AND 
                    UNDERSTANDINGS.

    The Senate advises and consents to the ratification of 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) subject 
to the conditions in section 2 and the understandings in 
section 3.

SEC. 2. CONDITIONS.

    The advice and consent of the Senate under section 1 is 
subject to the following conditions, which shall be binding 
upon the President:
          (1) Certifications regarding the National Security 
        Exclusion, managed access, and declared locations.--
        Prior to the deposit of the United States instrument of 
        ratification, the President shall certify to the 
        appropriate congressional committees that, not later 
        than 180 days after the deposit of the United States 
        instrument of ratification--
                  (A) all necessary regulations will be 
                promulgated and will be in force regarding the 
                use of the national security exclusion under 
                Article 1.b of the Additional Protocol, and 
                that such regulations shall be made in 
                accordance with the principles developed for 
                the application of the national security 
                exclusion;
                  (B) the managed access provisions of Articles 
                7 and 1.c of the Additional Protocol shall be 
                implemented in accordance with the appropriate 
                and necessary inter-agency guidance and 
                regulation regarding such access; and
                  (C) the necessary security and counter-
                intelligence training and preparation will have 
                been completed for any declared locations of 
                direct national security significance.
          (2) Certification regarding site vulnerability 
        assessments.--Prior to the deposit of the United States 
        instrument of ratification, the President shall certify 
        to the appropriate congressional committees that the 
        necessary site vulnerability assessments regarding 
        activities, locations, and information of direct 
        national security significance to the United States 
        will be completed not later than 180 days after the 
        deposit of the United States instrument of ratification 
        for the initial United States declaration to the 
        International Atomic Energy Agency (in this resolution 
        referred to as the ``Agency'') under the Additional 
        Protocol.

SEC. 3. UNDERSTANDINGS.

    The advice and consent of the Senate under section 1 is 
subject to the following understandings:
          (1) Implementation of additional protocol.--
        Implementation of the Additional Protocol will conform 
        to the principles set forth in the letter of April 30, 
        2002, from the United States Permanent Representative 
        to the International Atomic Energy Agency and the 
        Vienna Office of the United Nations to the Director 
        General of the International Atomic Energy Agency.
          (2) Notification to congress of added and deleted 
        locations.--
                  (A) Added locations.--The President shall 
                notify the appropriate congressional committees 
                in advance of declaring to the Agency any 
                addition to the lists of locations within the 
                United States pursuant to Article 2.a.(i), 
                Article 2.a.(iv), Article 2.a.(v), Article 
                2.a.(vi)(a), Article 2.a.(vii), Article 
                2.a.(viii), and Article 2.b.(i) of the 
                Additional Protocol, together with a 
                certification that such addition will not 
                adversely affect the national security of the 
                United States. During the ensuing 60 days, 
                Congress may disapprove an addition to the 
                lists by joint resolution for reasons of direct 
                national security significance, under 
                procedures identical to those provided for the 
                consideration of resolutions under section 130 
                of the Atomic Energy Act of 1954 (42 U.S.C. 
                2159).
                  (B) Deleted locations.--The President shall 
                notify the appropriate congressional committees 
                of any deletion from the lists of locations 
                within the United States previously declared to 
                the Agency pursuant to Article 2.a.(i), Article 
                2.a.(iv), Article 2.a.(v), Article 2.a.(vi)(a), 
                Article 2.a.(vii), Article 2.a.(viii), and 
                Article 2.b.(i) of the Additional Protocol that 
                is due to such location having a direct 
                national security significance, together with 
                an explanation of such deletion, as soon as 
                possible prior to providing the Agency 
                information regarding such deletion.
          (3) Protection of classified information.--The 
        Additional Protocol will not be construed to require 
        the provision, in any manner, to the Agency of 
        ``Restricted Data'' controlled by the provisions of the 
        Atomic Energy Act of 1954.
          (4) Protection of confidential information.--Should 
        the President make a determination that persuasive 
        information is available indicating that--
                  (A) an officer or employee of the Agency has 
                willfully published, divulged, disclosed, or 
                made known in any manner or to any extent 
                contrary 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 and the 
                Additional Protocol, any United States 
                confidential business information coming to him 
                or her in the course of his or her official 
                duties relating to the implementation of the 
                Additional Protocol, or by reason of any 
                examination or investigation of any return, 
                report, or record made to or filed with the 
                Agency, or any officer or employee thereof, in 
                relation to the Additional Protocol; and
                  (B) such practice or disclosure has resulted 
                in financial losses or damages to a United 
                States person;

        the President shall, not later than 30 days after the 
        receipt of such information by the executive branch of 
        the United States Government, notify the appropriate 
        congressional committees in writing of such 
        determination.
          (5) Report on consultations on adoption of additional 
        protocols in non-nuclear weapon states.--Not later than 
        180 days after entry into force of the Additional 
        Protocol, and annually thereafter, the President shall 
        submit to the appropriate congressional committees a 
        report on measures that have been taken or ought to be 
        taken to achieve the adoption of additional protocols 
        to existing safeguards agreements signed by non-nuclear 
        weapon states party to the Nuclear Non-Proliferation 
        Treaty.
          (6) Report on united states assistance to the agency 
        for the purpose of additional protocol implementation 
        and verification of the obligations of non-nuclear 
        weapon states.--Not later than 180 days after the entry 
        into force of the Additional Protocol, and annually 
        thereafter, the President shall submit to the 
        appropriate congressional committees a report detailing 
        the assistance provided by the United States to the 
        Agency in order to promote the effective implementation 
        of additional protocols to safeguards agreements signed 
        by non-nuclear weapon states party to the Nuclear Non-
        Proliferation Treaty and the verification of the 
        compliance of such parties with Agency obligations.
          (7) Subsidiary arrangements and amendments.--
                  (A) The subsidiary arrangement.--The 
                Subsidiary Arrangement to the Additional 
                Protocol between the United States and the 
                Agency, signed at Vienna on June 12, 1998 
                contains an illustrative, rather than 
                exhaustive, list of accepted United States 
                managed access measures.
                  (B) Notification of additional subsidiary 
                arrangements and amendments.--The President 
                shall notify the appropriate congressional 
                Committees not later than 30 days after--
                          (i) agreeing to any subsidiary 
                        arrangement with the Agency under 
                        Article 13 of the Additional Protocol; 
                        and
                          (ii) the adoption by the Agency Board 
                        of Governors of any amendment to its 
                        Annexes under Article 16.b.
          (8) Amendments.--Amendments to the Additional 
        Protocol will take effect for the United States in 
        accordance with the requirements of the United States 
        Constitution as the United States determines them.

SEC. 4. DEFINITIONS.

    In this resolution:
          (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, with 
        Annexes and a Subsidiary Agreement, signed at Vienna 
        June 12, 1998 (T. Doc. 107-7).
          (2) Appropriate congressional committees.--The term 
        ``appropriate congressional committees'' means the 
        Committee on Foreign Relations and the Committee on 
        Armed Services of the Senate and the Committee on 
        International Relations and the Committee on Armed 
        Services of the House of Representatives.
          (3) 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.
                IX. Hearing and Questions for the Record

THE PROTOCOL ADDITIONAL TO THE SAFEGUARDS AGREEMENT BETWEEN THE UNITED 
                     STATES OF AMERICA AND THE IAEA

                                CONTENTS

                                                                    Page

Biden, Hon. Joseph R., Jr., U.S. Senator from Delaware, 
    opening statement.........................................        58
Brooks, Ambassador Linton F., Administrator, National Nuclear 
    Security Administration, U.S. Department of Energy, 
    Washington, DC................................................    59
    Prepared statement............................................    62
Burk, Ms. Susan F., Acting Assistant Secretary of State for Non-
    Proliferation, Department of State, Washington, DC............    73
    Prepared statement............................................    77
Esper, Mr. Mark T., Deputy Assistant Secretary of Defense for 
    Negotiations Policy, U.S. Department of Defense, Washington, 
    DC............................................................    83
    Prepared statement............................................    87
Lichtenbaum, Hon. Peter, Assistant Secretary of Commerce for 
    Export Administration, U.S. Department of Commerce, 
    Washington, DC
                                                                      67
    Prepared statement............................................    69
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening 
    statement.....................................................    55

                   Statements Submitted for the Record

Lehman, Hon. Ronald F., Ph.D., Director, Center for Global 
    Security Research, Lawrence Livermore National Laboratory, 
    Livermore, CA.................................................    98
Nuclear Energy Institute, testimony for the record from Marvin S. 
    Fertel, senior vice president and chief nuclear officer.......   101
Wulf, Ambassador Norman A.........................................   103
Administration Responses to Committee Questions for the Record 
    submitted by the Foreign Relations Committee..................   106
                              ----------                              


                       THURSDAY, JANUARY 29, 2004

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:30 a.m. in room 
SD-419, Dirksen Senate Office Building, Hon. Richard G. Lugar 
(chairman of the committee), presiding.
    Present: Senator Lugar.

             OPENING STATEMENT OF SENATOR RICHARD G. LUGAR

    The Chairman. This hearing of the Senate Foreign Relations 
Committee is called to order.
    Today, the committee meets to consider the Additional 
Protocol to the Agreement Between the United States and the 
International Atomic Energy Agency, the IAEA. The United States 
signed the Additional Protocol in Vienna on June 12, 1998, and 
President Bush submitted it to the Senate on May 9, 2002. The 
State Department submitted the implementing legislation to 
Congress on November 19, 2003. At the administration's request, 
I introduced the implementing legislation in the Senate last 
December.
    Since Senate ratification of the Nuclear Non-Proliferation 
Treaty (NPT) and our voluntary offer to accept IAEA's 
safeguards in 1980, 188 states have now approved the treaty. 
Unfortunately, the NPT and its existing Safeguards Agreements 
have been insufficient to stem the tide of proliferation, and 
we have witnessed an increase in the global availability of 
nuclear weapons materials, and reprocessing and enrichment 
technologies. To ensure that materials and technologies are 
devoted only to peaceful uses, it is in the interest of the 
United States that the IAEA have the power to conduct intrusive 
inspections in a non-nuclear weapon state (NNWS).
    In 2003, the international community was confronted with 
two cases involving non-nuclear weapon states violating their 
commitments under the NPT by pursuing nuclear weapons programs. 
Iran's clandestine drive toward a nuclear weapons capability 
was exposed by an Iranian resistance group and confirmed by the 
IAEA. After months of discussion, Germany, France, and the 
United Kingdom concluded separate negotiations with Tehran in 
which the regime agreed to abandon its uranium enrichment 
program and to cease all efforts to pursue nuclear weapons. 
Iran signed an Additional Protocol with the IAEA in December.
    Earlier this month, Iranian Foreign Minister Kharrzi 
appeared to hedge on Iran's commitment by suggesting that 
Tehran had agreed, ``to the suspension, not stopping, of the 
uranium enrichment process.'' It is clear that Iran is not in 
full compliance with its obligations.
    In Libya, we witnessed an important non-proliferation 
success. Following intense negotiations with the Bush 
administration and the United Kingdom, Libya admitted that it 
had WMD programs and agreed to abandon those efforts and to 
work with the international treaty regimes to verify Libya's 
commitment. I applaud President Bush and his team for a victory 
in the war against proliferation of weapons of mass 
destruction.
    I'm eager to hear from our panel today whether we would 
have been able to detect and to stop Iran and Libya's 
clandestine programs long before now had Additional Protocols 
been in force in those countries.
    Events in Iran and Libya are important to our consideration 
of the Additional Protocol. In 1980, the Senate ratified the 
U.S. commitment to voluntarily accept safeguards and 
inspections to demonstrate a firm commitment to the IAEA and to 
the NPT. As a nuclear weapon state (NWS) party to the NPT, the 
United States is not required to accept any safeguards. Our 
decision sent an important non-proliferation message to the 
world: that the preeminent superpower, with a large civilian 
nuclear power industry, could accept IAEA safeguards.
    Over time, we have learned that existing safeguards 
agreements have been circumvented by determined cheaters in 
pursuit of weapons. The Additional Protocol seeks to fill holes 
in the existing patchwork of declarations and inspections. It 
will require the declaration of many locations and activities 
to the IAEA not previously required, and allow, with less than 
24 hours' notice, inspection of such locations.
    The United States, as a declared nuclear weapon state party 
to the NPT, may exclude the application of the IAEA safeguards 
on its activities. Under the Additional Protocol, the United 
States also has the right to exclude activities and sites of 
direct national security significance in accordance with this 
National Security Exclusion contained in Article 1.b This 
provision is crucial to United States acceptance of the 
Additional Protocol and provides the 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. 
Although there are increased rights granted to the IAEA for the 
conduct of inspections in the United States, the administration 
has assured the Foreign Relations Committee that the likelihood 
of an inspection occurring in the United States is very low. 
Nevertheless, should an inspection under the Additional 
Protocol be determined that it would be potentially harmful to 
United States' security interests, the United States has the 
right, through the National Security Exclusion, to prevent the 
inspection.
    For the past month, the majority and minority staffs of 
this committee have been working closely with the 
administration to craft a resolution of ratification that will 
gain broad support in the U.S. Senate. I thank Senator Joe 
Biden and his staff, in particular, for their cooperation in 
this bipartisan effort. I look forward to reporting, soon, the 
Protocol and the resolution of ratification, and will work with 
the majority leader of the Senate to schedule timely Senate 
consideration.
    I am pleased to introduce our panel this morning. First, I 
would like to extend my personal thanks to Ambassador Linton 
Brooks, Administrator of the National Nuclear Security 
Administration. We will look to Ambassador Brooks to tell us 
how this Protocol will further United States non-proliferation 
interests, while not harming the critical weapons complex over 
which he and his agency preside.
    We welcome Susan Burk, Acting Assistant Secretary of State 
for Non-Proliferation. We look forward to Secretary Burk's 
perspective on the United States negotiating position on this 
Protocol.
    Joining us from the Commerce Department, is Assistant 
Secretary for Export Administration, Peter Lichtenbaum. 
Secretary Lichtenbaum will share his department's plans to 
mitigate the burdens of the Protocol, if any, on United States 
industry.
    And we welcome Mark Esper, Deputy Assistant Secretary of 
Defense for Negotiations Policy. We appreciate his appearance 
today to share the Defense Department's strong support for the 
Additional Protocol, and to discuss the national security 
benefits outlined in the President's letter of submission.
    The committee also has asked the Nuclear Energy Institute 
and outside various experts to submit testimony outlining their 
views on the Additional Protocol. Further, we expect to receive 
the views of the Committee on Armed Services in the near 
future, for incorporation into our committee report.
    Now, let me say, at the outset, each of the pieces of 
testimony that I have cited will be made a part of the record. 
Likewise, each of the statements that you will make will be 
made a part of the record in full, so you need not ask for that 
in the event you wish to summarize and proceed.
    We very much look forward to the insights of each of our 
witnesses this morning. We thank you for coming to speak on 
this important issue. And at the time that Senator Biden joins 
our hearing, of course, I will call upon him for his additional 
statements that will also be made a part of the record.
    [The opening statement of Senator Biden follows:]

           Opening Statement of Senator Joseph R. Biden, Jr.

    Thank you, Mr. Chairman. I am very pleased that the committee today 
will hear testimony from executive branch officials regarding the 
Additional Protocol to the Safeguards Agreement between the United 
States and the International Atomic Energy Agency. Moving forward on 
U.S. ratification of the Additional Protocol has been a long-standing 
priority for me.
    In fact, I pressed strongly for the submission of this Protocol to 
the Senate and then for submission of draft implementing legislation, 
which both houses of Congress must pass before the Additional Protocol 
can enter into force. I understand that our respective staffs have been 
working together to fashion an agreed text for a Resolution of 
Ratification and that the chairman hopes the committee will approve 
this Resolution of Ratification at a business meeting next week.
    Senate ratification and entry into force for the the Additional 
Protocol is so critical because it can help spur the signing and 
ratification of other Additional Protocol agreements between the IAEA 
and non-nuclear weapons states. The recent disclosure on the nuclear 
programs of Iran and Libya remind us that the IAEA nuclear safeguards 
regime without the Additional Protocol is not strong enough to catch a 
cheater that uses undeclared nuclear sites.
    Additional Protocols will make it more difficult for future Irans 
and Libyas to escape IAEA detection, as they authorize the IAEA to 
inspect those undeclared sites. But the United States must demonstrate 
leadership by putting our own Additional Protocol into force; we then 
will be in a stronger position to pressure other nations to do the 
same. As today's hearing will demonstrate, Senate ratification of the 
Additional Protocol will not pose any significant new burden to the 
United States government or industry. In short, ratification of the 
Additional Protocol is a win-win proposition.
    Why should inspections apply to the United States, which the 
Nuclear Nonproliferation Treaty recognizes as a nuclear weapons state? 
In 1967, when the Nuclear Nonproliferation Treaty was still being 
negotiated, President Johnson announced that the United States would 
voluntarily submit to safeguards on nuclear materials, to assuage the 
concerns of non-nuclear weapons states that feared that the five 
nuclear weapons states would otherwise enjoy an unfair commercial 
advantage on nuclear power.
    Accordingly, a U.S.-IAEA safeguards agreement, known as the 
``Voluntary Offer,'' has been in place since 1980. Truth be told, this 
Voluntary Offer is more symbolic than real; until 1994, the IAEA only 
applied safeguards to two commercial power reactors and two fuel 
fabrication facilities in the United States, from a list of 250 
eligible facilities. In recent years, it has inspected only sites for 
which the United States requested inspections, like the site where we 
store the highly enriched uranium we removed from Kazakhstan.
    Should the Additional Protocol enter into force, the United States 
would submit additional information on civil nuclear facilities on an 
annual basis and identify additional civilian facilities, a small 
number of which might someday be inspected.
    All implementation activities under the Additional Protocol would 
be subject to a ``National Security Exclusion'' that would allow our 
government to exclude the application of the Additional Protocol 
wherever it would result in ``access by the Agency to activities with 
direct national security significance to the United States or to 
locations or information associated with such activities.''
    In other words, just as under the Voluntary Offer, the United 
States always will retain the trump card of not declaring a facility, 
not submitting certain information, or halting or limiting an 
inspection if our national security interests come into play.
    Why should the Senate quickly ratify the Additional Protocol this 
year? Recall that the IAEA has long insisted that Iran sign and 
implement an Additional Protocol.
    With an Additional Protocol in force, IAEA inspectors enjoy greater 
access rights to Iran's nuclear facilities (whether they are declared 
to the IAEA or not) and can demand information that Iran otherwise 
would not be obligated to provide. Late last year, Iran finally signed 
the Additional Protocol, but complex ratification procedures offer many 
opportunities for Iran to delay the agreement's entry into force.
    Iran is not the only non-nuclear weapons state that has not 
ratified the Additional Protocol. Other countries that have yet to do 
so include Algeria, Argentina, and Brazil, to name just a few. Indeed, 
the Additional Protocol has entered into force for only 37 non-nuclear 
weapons states.
    Senate ratification of the Additional Protocol and then the 
enactment of implementing legislation, would send a strong signal to 
the rest of the world on the importance the United States attaches to a 
genuine nuclear nonproliferation agenda. U.S. ratification would affirm 
that implementation of the Additional Protocol brings no commercial 
disadvantage for a nation's civil nuclear industry. Most importantly, 
ratification would strip the Irans of the world of a potent excuse: why 
should we ratify the Additional Protocol when the United States has yet 
to do so?
    So I welcome with great pleasure the testimony of our esteemed 
witnesses today. Ambassador Brooks, Mr. Lichtenbaum, Ms. Burk, and Mr. 
Esper, I look forward to hearing your statements. Mark, I also want to 
welcome you back as you testify before your former committee.
    Thank you, Mr. Chairman.

    The Chairman. It's a pleasure, Ambassador Brooks, to call 
upon you for your testimony.

   STATEMENT OF AMBASSADOR LINTON F. BROOKS, ADMINISTRATOR, 
 NATIONAL NUCLEAR SECURITY ADMINISTRATION, U.S. DEPARTMENT OF 
                     ENERGY, WASHINGTON, DC

    Ambassador Brooks. Thank you, Mr. Chairman. It's a pleasure 
to be back before a committee with which I have worked so 
closely in the past. And it's an honor to appear, on behalf of 
the President and the administration, to urge that the Senate 
provide its advice and consent to ratification of the 
Additional Protocol.
    I have submitted a detailed written statement. And, as you 
suggest, I will simply make some specific points drawn from 
that statement.
    My main message is a very simple one. Universal adherence 
to the Additional Protocol will give us important new tools in 
the fight against nuclear proliferation. Senate advice and 
consent at an early date will demonstrate U.S. leadership in 
this area and will encourage widespread adherence to the 
Additional Protocol by other states. And, finally, the 
administration is convinced that it can manage the risks 
associated with implementing the Additional Protocol. I'll 
explain why that's true for the Department of Energy. My 
colleagues will discuss other departments' preparations.
    In his transmittal package to the Senate, the President 
said, ``Adhering to the Additional Protocol will bolster U.S. 
efforts to strengthen nuclear safeguards and promote the non-
proliferation of nuclear weapons, which is the cornerstone of 
U.S. foreign and national security policy.''
    This committee knows better than anyone that the 
proliferation of nuclear weapons is among our most important 
national security challenges. Most parties to the Non-
Proliferation Treaty are honoring their obligations, but a 
small number of states, as you mentioned in your opening 
statement, have repudiated those obligations or are engaging in 
activities that raise serious questions about their intentions.
    One of the international community's primary tools in 
verifying compliance with the Non-Proliferation Treaty is the 
safeguard system with the International Atomic Energy Agency. 
Now, international regimes, alone, are not sufficient solution 
to the risk of proliferation, but they're necessary components 
of an overall strategy that uses all tools, whether 
international, multilateral, or unilateral. And to have a 
strong overall non-proliferation strategy, each element of that 
strategy must be as strong as possible.
    Today, the IAEA system of safeguards covers only declared 
activities, and it's not adequate to detect undeclared 
activities, and it needs the enhancements the Additional 
Protocol will provide.
    Events over the past decade have shown that effective non-
proliferation depends on detecting undeclared activities as 
early as possible, when potential weapons programs are in their 
formative stages. By broadening the verification role of the 
IAEA to include fuel-cycle research and development, related 
manufacturing, imports and exports of sensitive nuclear 
equipment, the Additional Protocol will allow the IAEA to 
detect these undeclared activities earlier.
    The need for this became clear in 1991, following the first 
gulf war. We discovered a well-developed nuclear weapons 
program in Iraq; and in response to that revelation, under the 
leadership of the United States, a group of IAEA member states 
negotiated the so-called Model Additional Protocol to 
supplement and amend the Model Safeguards Agreement. As I said 
a moment ago, while the Safeguards Agreement focuses on 
accounting for material at declared facilities, the Additional 
Protocol gives the IAEA the tools it needs to discover 
undeclared programs at the early stage.
    Technology transfer, as recent events have made very clear, 
is an important precursor to actual proliferation, and the 
Additional Protocol offers the ability to deal with this issue. 
It's very important, as this committee knows well, that we 
pursue our own national technical means of detecting 
proliferation activities--I don't suggest that this or any 
other agreement is a substitute for that--but it's also vital 
to ensure that we use the widest possible set of tools. 
Widespread adherence to the Additional Protocol will strengthen 
international efforts to detect and control proliferation.
    But if we're going to get the benefits of widespread 
adherence to the Protocol, the United States must lead the way. 
Given our dominant position in the world today, there's simply 
no substitute for U.S. leadership. Now, we've exercised that 
leadership already, of course. Just like the original Safeguard 
Agreement, the U.S. Additional Protocol contains a national 
security exclusion to protect our national security equities. 
But except for that, the U.S. Additional Protocol contains 
every word of the IAEA Model Protocol, and we're the only 
nuclear weapons state that has accepted the Model Protocol in 
its entirety.
    If we hadn't pushed so hard for a strong Model Protocol, 
and if we hadn't accepted a comprehensive Additional Protocol 
for ourselves, I believe fewer states would have been willing 
to accept their own Protocols. The diplomatic reality is that 
our support for the Additional Protocol and our agreement to 
accept its implementation have been crucial. Just as we 
provided the critical push for the Non-Proliferation Treaty by 
voluntarily agreement to accept IAEA's Safeguards Agreement in 
1980, our acceptance to the Additional Protocol provides an 
impetus for other countries to conclude and implement their own 
Additional Protocols.
    And Senate advice and consent will allow us to continue 
this U.S. leadership and renew our efforts to gain universal 
acceptance of the Additional Protocol. That's clearly in the 
national security interest of both the United States and our 
friends and allies.
    Now, the benefits of widespread adherence to the Additional 
Protocol must, of course, be balanced by consideration of the 
risks to U.S. security from additional IAEA presence in the 
United States. Department of Energy, as you mentioned in your 
opening statement, is in a unique position to consider this 
balance. We have significant non-proliferation 
responsibilities, and we have a unique role in dealing with the 
IAEA. But, at the same time, we have responsibilities for 
safeguarding the U.S. nuclear weapons complex.
    Our Department has a long, constructive history of working 
with the IAEA. And because of this extensive collaborative 
relationship, we have a vast store of experience and knowledge 
concerning safeguards. And that knowledge and experience will 
apply to our implementation of the Additional Protocol. It 
includes experience in preparing for and supporting IAEA 
safeguards, while protecting sensitive U.S. information from 
disclosure.
    And based on this experience, we are convinced that 
ratification of the Additional Protocol will not endanger U.S. 
security. That's because along with providing the IAEA with 
important tools to ferret out undeclared military activities, 
the Additional Protocol includes a set of robust mechanisms by 
which the United States can protect commercially sensitive, 
export-controlled, and classified material.
    First method is managed access. Managed access can involve 
a wide variety of measures--shrouding, closing doors, limiting 
access, turning off computers--and that will allow us to 
prevent IAEA inspectors from coming into contact with 
proliferation-sensitive or proprietary or commercially 
sensitive information.
    Second, and most important, the United States can 
unilaterally, and without explanation, invoke a national 
security exclusion that enables us to deny IAEA access to 
activities with direct national security significance or to 
locations associated with those activities. The IAEA has no 
right to challenge or question the U.S. invocation of the 
national security exclusion.
    So with managed access, the national security exclusion 
rights, site-specific plans, and our long experience, I am 
confident that we can fully manage any risks associated with 
the Additional Protocol. This is not just based on theory. The 
IAEA currently conducts monthly inspections of safeguarded 
nuclear materials in three Department of Energy sites under our 
existing voluntary-offer agreement. It's done so since 1994, 
with no significant problems.
    Now, we expect that if the IAEA seeks access to a DOE site 
under the Additional Protocol, it will do so only in rare 
circumstances, and then only after we've had the opportunity to 
supply additional information that might make access 
unnecessarily. Thus, in contrast with the monthly inspections 
that we handle now, we wouldn't expect any regular access 
beyond that already permitted by our Safeguards Agreement.
    My formal statement describes the modest administrative and 
financial burden that we expect from implementation of the 
Additional Protocol. At present, we only have preliminary 
figures and the type and number of activities to be declared, 
but we've made a firm policy that we'll only declare an 
activity for which complementary access could be granted 
without posing a risk to national security equities. If we 
can't provide access, we won't declare the activity. We'll also 
make full use of managed access. But, once again, only where 
we're confident that managed access is sufficient to protect 
our national security equities. Likewise, we'll protect from 
disclosure of proprietary or commercially sensitive 
information. In short, we plan to make full use of our rights 
under the Additional Protocol to protect our interests while 
still meeting our obligations.
    Our preparations for safeguarding security while 
implementing the Additional Protocol are detailed in my written 
statement. They include development of a computerized data base 
to manage our portion of the U.S. declaration; exercises, both 
tabletop and fields, to help us understand implementation of 
complementary access; comprehensive training for DOE officials, 
both in headquarters and at the field; and development of 
special training for security personnel; and, finally, close 
coordination with other agencies.
    The risk of nuclear weapons falling into the hands of rogue 
states is one of the greatest threats to U.S. national security 
today. The international nuclear non-proliferation regime is 
one made major line of defense against that threat. Additional 
Protocols in non-nuclear weapon states will strengthen our 
efforts to prevent the diversion or clandestine production of 
fissile material directly enhancing our national security. And 
U.S. leadership, in adopting our own Protocol, is crucial to 
gaining adherence from others. We, therefore, urge this 
committee and the Senate to provide advice and consent to this 
Protocol as soon as possible.
    Thank you very much for your attention. Once my colleagues 
have made their statements, we'll be prepared to take any 
questions you may have.
    [The prepared statement of Ambassador Brooks follows:]

           Prepared Statement of Ambassador Linton F. Brooks

                              INTRODUCTION

    Mr. Chairman, members of the Committee, thank you for this 
opportunity to discuss the Additional Protocol and its implications for 
the Department of Energy (DOE). We seek universal acceptance of the 
Additional Protocol in the international community as an important goal 
of U.S. national security policy. As the President said in his 
transmittal package to the Senate,

        Adhering to the Additional Protocol will bolster U.S. efforts 
        to strengthen nuclear safeguards and promote the 
        nonproliferation of nuclear weapons, which is the cornerstone 
        of U.S. foreign and national security policy.

    Mr. Chairman, as you and your fellow Committee members are well 
aware, the proliferation of nuclear weapons is among the United States' 
foremost national security challenges. While most Parties to the Non-
Proliferation Treaty (NPT) are honoring their obligations and share our 
concerns about the risks of nuclear proliferation, a small number of 
states have repudiated their obligations or are engaging in activities 
that pose serious questions about their intentions. One of the 
international community's primary tools in verifying states' compliance 
with the NPT is the IAEA's safeguards system.
    Strong U.S. support for the Additional Protocol, including U.S. 
implementation of the Additional Protocol, will promote our objective 
of verifying other States' compliance with their obligations.
    International regimes such as the NPT and IAEA safeguards play a 
critically important role in reducing the risk of nuclear 
proliferation. Clearly, these regimes in themselves are not a 
sufficient solution to the risks of proliferation, but strong US 
support for them forms a necessary component of a broadly gauged 
nonproliferation strategy that embraces all effective tools, whether 
they be international, multilateral, or unilateral in nature. Achieving 
the widest possible international adherence to an effective AP 
materially serves US national security interests, just as do such 
recent measures as the Proliferation Security Initiative and our 
ongoing diplomatic efforts to achieve a peaceful resolution of the 
proliferation challenge the international community faces in North 
Korea and Iran.
    U.S. diplomatic support for a strong Model Additional Protocol was 
indispensable during negotiations of the Model Additional Protocol in 
the mid-1990s in order to overcome concerns posed by other countries 
about the scope of what would be subject to verification. In response 
to the limitations of traditional safeguards that were exposed in Iraq 
following the Persian Gulf War, our objective has been to strengthen 
IAEA safeguards. Had the United States not pushed so hard for a strong 
AP, including by accepting a comprehensive AP to its own IAEA 
safeguards agreement, it is questionable whether we would have achieved 
this objective. The diplomatic reality is that our support for the AP, 
and our agreement to accept its implementation in the United States in 
a manner that is appropriate to our status as a nuclear weapons state, 
has been critical to getting the AP to where it is today. One can only 
ponder the possible impact of failing to ratify the U.S. AP, for 
example, on the effort to get Iran and other countries of concern to 
implement their own Additional Protocols.
    As events over the past decade amply show, the effectiveness of 
nonproliferation efforts depends upon detecting undeclared activities 
as early as possible, when potential nuclear weapons programs are in 
their formative stages. By broadening the verification role of the IAEA 
to include fuel cycle R&D and related manufacturing not involving 
nuclear materials, as well as imports and exports of sensitive nuclear 
equipment, the AP advances the stage at which the IAEA can detect 
undeclared activities. As important as it is to pursue our own national 
technical means of detecting proliferation activities, it is also vital 
to ensure that the widest possible net is cast to detect such 
activities. Our experience under the AP will give us an invaluable 
window into its effectiveness and whether even further strengthening of 
the safeguards regime might be needed.
    Our support of the IAEA is long standing. The United States has 
always maintained a leadership position in the IAEA and in the 
international safeguards system. Indeed, it was in President 
Eisenhower's ``Atoms for Peace'' speech, 50 years ago last month, that 
one can find the broad outlines of what became the IAEA and of the 
concept of using international safeguards to verify the peaceful uses 
of nuclear energy. Continued U.S. leadership is essential to the 
ability of the IAEA to successfully carry out its vital role in 
verifying Non-Nuclear Weapons States' compliance with their obligations 
under the Non-Proliferation Treaty.
    The Department of Energy and its predecessor agencies have had a 
long and constructive history of working with the IAEA. Because of this 
extensive collaborative relationship, DOE has a vast store of 
experience with and knowledge of IAEA safeguards. This knowledge and 
experience, which can be applied directly to the implementation of the 
Additional Protocol, includes effective preparation for and support of 
implementation of IAEA safeguards at certain DOE facilities, and 
protection of sensitive U.S. information from disclosure to IAEA 
inspectors. Secretary Abraham has reiterated his personal commitment to 
and support for the Department's strong and effective engagement with 
the IAEA, including support for IAEA safeguards implemented at DOE 
facilities.
    In 1991, following the first Gulf War, a well-developed nuclear 
weapons program was discovered in Iraq. In response to that revelation, 
a group of IAEA Member States, with strong leadership by the United 
States, negotiated the Model Additional Protocol to supplement and 
amend the model Safeguards Agreement. While the Safeguards Agreement 
(also known as INFCIRC/153) focuses on nuclear material accountancy at 
declared facilities, the Additional Protocol gives the IAEA the tools 
it needs to discover undeclared nuclear programs at an early stage, and 
to deter non-nuclear weapons states from undertaking prohibited 
military programs. The Additional Protocol was opened for signature in 
1997. Just as the United States provided a critical push for the NPT by 
agreeing to voluntarily accept a U.S.-IAEA Safeguards Agreement in 
1980, U.S. acceptance of the Additional Protocol will provide an 
impetus for other countries to conclude an Additional Protocol. Like 
the original safeguards agreement, the U.S. Additional Protocol 
contains a national security exclusion to protect U.S. national 
security equities.
    The Administration firmly believes that the universal acceptance of 
the Additional Protocol is in the national security interest of the 
United States. The Senate's positive advice and consent to ratification 
of the Additional Protocol would make the United States a leader by 
example, and encourage other states to ratify an Additional Protocol.

               IMPACT ON THE DEPARTMENT OF ENERGY COMPLEX

    Let me also address the impact of the Additional Protocol on the 
DOE complex. Based on past arms control vulnerability assessments and 
on our analysis of the Protocol, DOE is confident that it can manage 
the risk to national security associated by the AP. Other agencies that 
will be testifying today also have implementation responsibilities for 
facilities and activities, some that could involve the Department of 
Energy sites. While I am confident that the AP does not pose an 
unreasonable burden on the US, and that US national security activities 
will be protected from disclosure, as a representative of the 
Department of Energy and the Administrator of its National Nuclear 
Security Administration, I will address the AP's impact on the 
Department of Energy complex.
    At the same time that the Additional Protocol provides the IAEA 
with important tools to ferret out undeclared military activities in 
non-nuclear weapons states, the Additional Protocol also includes a set 
of robust mechanisms by which DOE can protect its commercially 
sensitive, export-controlled, and classified assets. The first method 
is managed access, also referred to as ``Article 7 managed access.'' 
This managed access involves a wide range of measures, such as 
shrouding, closing doors, or turning off computers and other equipment 
to prevent IAEA inspectors from coming into contact with 
``proliferation sensitive information or proprietary or commercially 
sensitive information.'' Second, the United States can unilaterally, 
and without explanation, invoke a national security exclusion (NSE) 
under Article 1 that enables the U.S. not to declare or allow IAEA 
complementary access to ``activities with direct national security 
significance to the United States or to locations or information 
associated with such activities.''
    Third, under Article I, the United States also has the right to use 
managed access associated with the NSE. Managed access under Article 1 
is more robust than the Article 7 managed access. We would employ this 
managed access under Article 1 of the Additional Protocol only where 
our security evaluation shows that such managed access would mitigate, 
in a manner acceptable to us, any risk of inadvertent disclosure of 
national security activities or information to the inspector. I would 
reiterate that the use of the NSE or managed access under the NSE is 
entirely unilateral, and the IAEA has no right to challenge or question 
the U.S. invocation of the national security exclusion. With managed 
access and the national security exclusion rights combined with 
Additional Protocol-specific security plans and DOE's past experience 
with IAEA inspections, DOE is confident that it can fully manage the 
risks associated with the Additional Protocol.
    The IAEA currently conducts monthly inspections of safeguarded 
nuclear materials at three sites in the DOE complex since 1994. We have 
applied this extensive experience to our preparations for the AP. We 
expect, that if the IAEA conducts a complementary access visit to a DOE 
site under the AP to resolve a question regarding our declaration for 
the specific activity in question, it would do so only in rare 
circumstances, and then only after we have had the opportunity to 
supply additional information in writing. In contrast to the monthly 
inspections we now support at the three DOE sites under the VOA, we 
would not expect any regular complementary access visits by the IAEA at 
DOE sites.
    Indeed, while the impact of the Additional Protocol will not be 
insignificant, it will nonetheless be manageable. The bulk of the time, 
effort, and expense associated with the Additional Protocol will be in 
connection with preparations for entry-into-force, particularly in 
developing the initial DOE portion of the declaration and completing 
security plans. The Department is continuing to refine its analyses of 
how many of its sites will be affected by the Additional Protocol. We 
believe that nearly all the major Department of Energy National 
Laboratories and facilities will be affected, consistent with 
implementation of the National Security Exclusion. While the DOE 
complex has diverse missions and activities, some sites will only have 
a small number of declarable programs, and in a few cases will have 
none. Other sites and facilities will have larger numbers of declarable 
activities.
    At this point in time, the Department has only preliminary figures 
on the type and number of activities to be declared. The declarations 
will primarily be in the areas of civil nuclear fuel cycle research not 
involving nuclear material, manufacture of the items listed in Annex II 
of the Additional Protocol (such as equipment to build and maintain 
nuclear reactors and enrichment equipment), and exports of items listed 
in Annex II. I should note that the Department already, under a 
voluntary arrangement with the IAEA, declares certain exports. The 
Additional Protocol will formalize this arrangement. Based on analyses 
carried out to date, we believe that the number of DOE declarable items 
will be in the low 1OOs. We will further refine this estimate as we 
move forward in our preparations for entry into force. I will discuss 
the Department's on-going preparations for the Additional Protocol in 
more detail shortly.
    In addition to the cost in time and effort, there will be a 
financial cost to implement the Additional Protocol. Current budget 
estimates indicate that the Department will require approximately $3.5 
million for headquarters, including the funds already allocated, to 
prepare the complex. In addition, the up-front preparation costs for 
each site, including the cost of comprehensive vulnerability and 
security assessments will be an estimated $220 thousand per site, for a 
total of approximately $10 million. Please keep in mind that this is an 
upper bound, and as the Department gains experience in preparing for 
the Additional Protocol, these estimates may decrease. I would also 
note that this is a one-time expense in preparing for entry-into-force. 
The annual cost of the Additional Protocol will be approximately 10% of 
the initial cost per year for the first couple of years and less in the 
out-years.

                PROTECTION OF NATIONAL SECURITY EQUITIES

    Before I continue any further, I would like to highlight the steps 
that the Department of Energy is currently taking and will take in the 
future to protect the very important national security equities at our 
sites and facilities. DOE already has a great deal of practical 
experience in preparing declarations and carrying out inspections under 
the current U.S.-IAEA Safeguards Agreement (also known as the Voluntary 
Offer Agreement [VOA]), while still protecting adjacent national 
security equities. Since 1994, the IAEA has been carrying out monthly 
inspections of highly enriched uranium and plutonium at multiple DOE 
facilities, and currently carries out inspections at three DOE 
facilities: the Y-12 Complex near Oak Ridge, Tennessee; the Hanford 
Site near Richland, Washington; and the Savannah River Site near Aiken, 
South Carolina.
    In preparation for these traditional IAEA safeguards inspections, 
comprehensive vulnerability assessments were completed, and specific, 
detailed security plans were developed and implemented to prevent 
inadvertent disclosure of sensitive and classified information to the 
inspectors. The Department will conduct site-specific vulnerability 
assessments (VAs) for DOE facilities where potentially declarable 
activities under the Additional Protocol are taking place, to determine 
whether or not we can offer the IAEA access to those activities.
    DOE will only declare an activity for which complementary access 
could be granted without posing a risk to national security equities. 
Let me be clear on this. If DOE cannot provide access, for whatever 
reason, we will not declare the activity. We will make full use of 
managed access measures where we are confident that they will protect 
our national security equities, including proliferation sensitive 
information. Likewise, we will protect from disclosure proprietary or 
commercially sensitive information. In short, we will make full use of 
our rights under the Additional Protocol to protect these interests, 
while meeting our obligations under the Protocol.
    I want to be equally clear that our exercise of our NSE rights 
under the AP will not allow Non-Nuclear Weapon States (NNWS) to follow 
suit. That is because the NSE right in Article 1 of the U.S. Additional 
Protocol, which is available to us as a Nuclear Weapon State in NPT 
terms, is not available to NNWS. The NSE in the US AP parallels the 
exclusion of defense nuclear materials under our Voluntary Offer 
safeguards agreement with the IAEA, which is similarly unique.
    DOE Orders require that site security personnel conduct operational 
security reviews of sensitive equities on a periodic basis. The 
frequency of these reviews is determined by the levels of sensitivity. 
For example, Top Secret and Special Access Programs have the highest 
frequency. Specific guidance for the conduct of reviews pertaining to 
the Additional Protocol is under development and is expected to be 
issued in the near future.
    Over the past ten years, the Department has conducted vulnerability 
assessments and exercises at most of its facilities to ascertain 
whether or not a wide variety of arms control regimes could be 
accommodated. These activities have been related to the Chemical 
Weapons Convention, the Fissile Materials Cutoff Treaty, the Strategic 
Arms Reduction Treaty, the Biological weapons Convention, and the 
Additional Protocol. Arms control assessments were conducted at five 
facilities last year. An exercise was also conducted last fall. The 
conclusion that the Department has drawn from these assessments and 
exercises is that national security equities at Department of Energy 
and National Nuclear Security Administration sites can be protected 
under the Additional Protocol, provided that the United States can 
exercise managed access and the national security exclusion. Thus, 
while we shall continue our preparations for the AP, we are confident 
that we will protect our national security interests from disclosure 
under the AP. I base this confidence on conclusions of particular 
analyses tailored to the AP regarding protecting national security 
interests at DOE locations, as well as over a decade's experience in 
assessing vulnerabilities under arms control agreements of varying 
intrusiveness and our experience with supporting IAEA inspections under 
the VOA.
    The Department is in the process of identifying potentially 
declarable activities under the Additional Protocol. Once these 
activities are identified, the Additional Protocol-specific assessments 
will be conducted at each of the impacted sites to determine which 
activities can be declared. These assessments will be conducted as part 
of the on-going site OpSec programs and will be coordinated with other 
federal agencies that have security interests. Finally, let me repeat 
that DOE will not declare under the Additional Protocol any activity or 
location for which it cannot grant complementary access, because of the 
nature of the activity itself, other agencies' affected national 
security equities or because of location-related national security 
concerns.

     DEPARTMENT OF ENERGY PREPARATIONS FOR THE ADDITIONAL PROTOCOL

    The Department of Energy has already begun preparations should the 
Additional Protocol enter into force. DOE has begun the development of 
an Additional Protocol Reporting System (APRS). The APRS is a 
computerized database that will collect, store, and update the DOE 
portion of the USG Additional Protocol declaration. Because of the 
unique nature of the DOE portion of the Additional Protocol 
declaration, DOE sites will not input directly into the United States 
Government system under development by the Department of Commerce. Site 
security and OpSec personnel with knowledge of national security 
activities at those locations will rigorously scrub individual 
candidate declaration entries prepared by other site personnel, and 
there will be additional scrutiny at the headquarters level. 
Furthermore, since the DOE provides national security related products 
and services to the Department of Defense (DoD), the DOE declaration 
will be also receive a DOD review prior to submission to the USG 
declaration compiled by the Department of Commerce (DOC). The 
combination of these steps will give the DOE complex an extra layer of 
security and assurance. DOE is working closely with the Department of 
Commerce to ensure that the two systems will be able to communicate 
with each other. While exact numbers are not known at this time, the 
DOE APRS is expected to maintain a declaration of a few hundred 
entries. This declaration is dynamic and will change over time. DOE has 
developed a comprehensive and precise set of guidelines to ensure that 
personnel in the field will be able to determine whether projects are 
declarable or not.
    Another element of our preparations involves exercises to give us a 
hands-on perspective on implementation of complementary access. 
Recently, DOE held a tabletop exercise for DOE Headquarters personnel 
and national laboratory representatives at Oak Ridge National 
Laboratory to test some assumptions about how an IAEA complementary 
access visit under the Additional Protocol would work. Subsequently, 
representatives from the rest of the interagency, conducted a U.S.-only 
field trial to test certain DOE and Administration assumptions about 
how the Additional Protocol would be implemented in the United States. 
It was an invaluable test of the system, giving DOE personnel, 
laboratory staff, and interagency representatives real hands-on 
experience with a mock complementary access visit. DOE intends to run 
more tabletop and field trial exercises. We are currently planning a 
tabletop exercise at a nuclear weapons lab to simulate application of 
the NSE to the declaration process and complementary access, under NSE 
managed access conditions, to a declarable activity (e.g., a civil fuel 
cycle R&D program).
    In a wider context, the Department has undertaken a comprehensive 
outreach program to inform the DOE Headquarters, field operations 
offices, laboratories, and sites of their rights and responsibilities 
under the Additional Protocol. The program consists of management 
briefings, detailed staff tutorials and training on complementary 
access, making declarations, and using the Additional Protocol 
Reporting System. Specialized training will be developed for security 
personnel.
    In its preparations for the Additional Protocol, DOE has been 
coordinating closely with other relevant agencies. Regular working 
level meetings are held among the concerned agencies to discuss policy 
issues. Additionally, DOE is working with the Department of Commerce to 
ensure that compatibility between the DOE and USG Additional Protocol 
Reporting Systems. Finally, DOE has begun regular meetings with DOD to 
ensure that DOD equities at DOE sites are protected. We will similarly 
ensure that the national security equities of other U.S. Government 
agencies at our facilities will be protected.

                               CONCLUSION

    Let me conclude by reiterating the Administration's commitment to 
the IAEA and the Additional Protocol. The risk of nuclear weapons 
falling into the hands of rogue states or terrorists is one of the 
greatest threats to U.S. national security today, and the international 
nuclear non-proliferation regime is a primary line of defense. 
Protocols in Non-Nuclear Weapon States will strengthen our efforts to 
prevent the diversion or clandestine production of fissile material, 
directly enhancing the national security of the United States. We 
believe that the widespread adoption of the Additional Protocol is 
strongly in U.S. interests and that U.S. leadership in adopting the 
Protocol ourselves is critical. I urge you to provide your advice and 
consent to this Protocol in an expeditious manner. Thank you for your 
time and attention. I am now prepared to take any questions you may 
have.

    The Chairman. Thank you very, very much for that testimony. 
It is so important to our consideration today, thanks to the 
broad experience that you bring to the table.
    It's a pleasure now to call on the Honorable Peter 
Lichtenbaum, then Secretary Burk, and Secretary Esper.
    Secretary Lichtenbaum.

  STATEMENT OF HON. PETER LICHTENBAUM, ASSISTANT SECRETARY OF 
    COMMERCE FOR EXPORT ADMINISTRATION, U.S. DEPARTMENT OF 
                    COMMERCE, WASHINGTON, DC

    Mr. Lichtenbaum. Thank you very much, Mr. Chairman. And 
thank you for the opportunity to testify before the committee 
today on the impact of the Additional Protocol on the U.S. 
commercial nuclear industry, and the role of the Commerce 
Department in the implementation of the Additional Protocol. 
Like Ambassador Brooks, I urge the Senate's advice and consent 
to the Additional Protocol.
    Regarding the impact of the Additional Protocol on U.S. 
industry, the Additional Protocol will expand declaration 
requirements and access provisions to include upstream and 
downstream nuclear fuel-cycle activities. These include mining 
and milling, research and development, equipment manufacturing, 
exports and imports, and waste processing.
    Commerce does not expect that implementing the Additional 
Protocol will be overly burdensome on U.S. industry. Based on 
studies conducted for the U.S. Government, we estimate that no 
more than 500 operating commercial locations under our 
responsibility will have to file declarations. And based on 
discussions with the IAEA, we anticipate that the United States 
would receive no more than a few complementary access visits 
annually.
    We expect that the cost to industry of submitting 
declarations and participating in any access visits will be 
fairly low. Based on data from industry compliance with the 
Chemical Weapons Convention, or CWC, it takes an average of 5 
hours to complete a declaration. The cost of an access visit 
under the CWC has been about $30,000; however, we expect the 
cost under the Additional Protocol to be lower than that, since 
Additional Protocol inspections will be more limited.
    As far as Commerce's role in implementing the Additional 
Protocol, we will have two key responsibilities. First, we will 
help industry comply with the Additional Protocol, consistent 
with Commerce's overall role to assist U.S. industry to comply 
with international arms-control agreements. Second, we will 
establish and run the system to integrate all U.S. information 
into our national declaration.
    Regarding the first area of responsibility, Commerce will 
be responsible for implementation for commercial activities not 
licensed by the Nuclear Regulatory Commission, or NRC. Commerce 
will, however, work with the NRC so that U.S. companies know 
which regulations apply to them. Since some companies may have 
to comply with both Commerce and NRC rules, depending on their 
activities, we will work with the NRC to ensure that our rules 
are complementary, and we will jointly develop declaration 
forms and conduct outreach.
    Commerce will help the industry comply with the Additional 
Protocol following the same principles as we have used to help 
industry to comply with the CWC.
    First, demonstrating industry compliance. We will conduct 
seminars, training, and other outreach to industry in order to 
assist companies in understanding and implementing their 
declaration and complementary access obligations. We will also 
offer site-assistance visits and assistance in advance of 
inspections to companies that seek help.
    Second, protecting confidential information. In our 
outreach, we will help companies to identify and protect 
proprietary and other sensitive information and technology. 
Commerce will manage complementary access visits at commercial 
locations under our responsibility. We will escort inspectors 
from the IAEA from the time they arrive at the front gate of 
the location until they depart the location. In addition, 
Commerce will vigorously employ the managed-access measures 
permitted under Article 7 of the Additional Protocol and 
contained in the U.S. subsidiary arrangement to protect 
confidential or proprietary information.
    And, third, regarding minimizing burdens on the U.S. 
industry. At the declaration stage, the information that we 
will require companies to submit by regulation will be kept to 
the minimum necessary to meet U.S. treaty obligations. The 
declaration form itself will be developed in a user-friendly 
way; for instance, by allowing companies to check boxes, rather 
than write text. We will maintain an Additional Protocol Web 
site so that companies have quick access to information. And we 
will seek to use the clarification process to avoid any need 
for a complementary access visit.
    I mentioned that we have a second responsibility to 
integrate information submitted to us and other agencies of the 
government for ultimate submission to the IAEA. And as part of 
that, we will develop a secure, but unclassified, Additional 
Protocol Reporting System, or APRS. The APRS will collect and 
process industry submissions and will aggregate all agency 
declaration information into a U.S. national declaration for 
transmission to the IAEA. This system will permit agencies to 
identify activities with direct national security significance 
in order to protect them through the national security 
exclusion.
    There are many risks associated with releasing the identity 
and activities of commercial locations. Therefore, we believe 
the U.S. Government needs an effective means of preventing the 
domestic release of information contained in the Additional 
Protocol Reporting System. An exemption from Freedom of 
Information Act disclosure, as contained in the implementing 
legislation, would provide such protection.
    In conclusion, Commerce plans to implement the Additional 
Protocol so as to ensure U.S. industry's compliance, while 
minimizing burdens and avoiding any national security 
vulnerability.
    I would be happy to respond to any questions from the 
committee following my colleagues' testimony.
    Thank you.
    [The prepared statement of Mr. Lichtenbaum follows:]

      Prepared Statement of Assistant Secretary Peter Lichtenbaum

 COMMERCE DEPARTMENT ROLE IN IMPLEMENTING THE U.S. ADDITIONAL PROTOCOL

    Chairman Lugar, Senator Biden, and Members of the Committee:
    Thank you for the opportunity to testify before the committee today 
on the impact of the Additional Protocol (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) on the U.S. commercial nuclear industry and the role 
of the Department of Commerce in implementation of the Additional 
Protocol. As you know, the mission of the Commerce Department's Bureau 
of Industry and Security (BIS) is to advance U.S. national security, 
foreign policy, and economic interests. BIS's responsibilities include 
assisting U.S. industry to comply with international arms control 
agreements. It is in this capacity that I am testifying before you 
today.

Background
    The Additional Protocol is a critical amendment to the Safeguards 
Agreement. It will expand declaration requirements and access 
provisions beyond facilities handling source or special fissionable 
material to include upstream and downstream nuclear fuel cycle 
activities, such as mining and milling, research and development, 
equipment manufacturing, exports and imports, and waste processing. The 
recent discoveries by the International Atomic Energy Agency (IAEA) in 
Iran demonstrate the limitations of the Safeguards Agreement and the 
benefits of inspectors' ability to access the full scope of nuclear 
fuel cycle-related activities to ensure a non-nuclear-weapon state's 
compliance with the Nuclear Non-Proliferation Treaty.

Commerce and NRC Roles
    The Additional Protocol, by expanding the application of the U.S. 
Safeguards Agreement to civil nuclear activities, subjects additional 
U.S. commercial locations to declaration and complementary access 
requirements. The Nuclear Regulatory Commission (NRC) will have the 
lead role for commercial activities that it licenses (e.g., uranium 
mills, infrastructure supporting facilities, and equipment exports). 
BIS will be responsible for implementation as it applies to any 
commercial activity not licensed by NRC, including uranium mining, 
research and development not involving nuclear materials, and 
manufacturing and importing of specially designed nuclear equipment. To 
assist U.S. companies in determining to which regulations they are 
subject, BIS and NRC will ensure that our rules are complementary, and 
will jointly develop declaration forms and conduct outreach.

BIS Approach
    BIS has a successful history of assisting industry to comply with 
the only other international arms control treaty that directly affects 
U.S. commercial activities: the Chemical Weapons Convention (CWC). Our 
approach to ensuring U.S. compliance has been both novel and 
successful. We have developed a partnership with commercial facilities 
built upon three guiding principles:

          (1) Demonstrating industry compliance;

          (2) Emphasizing the protection of confidential information; 
        and

          (3) Minimizing burdens and costs to industry.

    This approach has been successful from a compliance standpoint and 
has been commended by the largest domestic chemical industry trade 
group. We intend to implement the industry compliance provisions of the 
Additional Protocol following these same principles.
Additional Protocol Reporting System
    As part of our implementation responsibilities, BIS has been tasked 
to develop a secure Additional Protocol Reporting System that will 
collect and process industry submissions, and will aggregate all agency 
information collected from declarations into a U.S. national 
declaration for transmission to the IAEA. As part of this system, BIS 
is developing an electronic tool that will permit agencies to identify 
activities with direct national security significance to the United 
States in order to protect these equities through a national security 
exclusion (NSE). Under Article 1.b of the Additional Protocol, the 
United States reserves the right to exclude locations or activities of 
direct national security significance from declaration to the IAEA. BIS 
regulations will instruct companies not to submit classified 
information with declarations. Nevertheless, the identification of 
activities and locations of certain companies, including defense 
contractors, could require the U.S. Government to exercise the NSE for 
commercial activities in order to guard against the potential to 
disclose information of direct national security significance. For 
example, this situation could exist where a program of direct national 
security significance is co-located with unrelated commercial 
activities (e.g., equipment manufacturing). The U.S. Government has the 
right to exercise the NSE to prevent such sensitive information from 
being submitted to the IAEA.

Protection of Sensitive Information
    Additionally, declaration information must be protected from 
domestic release. There are many risks associated with releasing the 
identity and activities of commercial locations engaged in nuclear fuel 
cycle activities. Therefore, the U.S. Government needs an effective 
means of preventing the domestic release of information contained in 
the unclassified Additional Protocol Reporting System. A statutory 
exception to Freedom of Information Act disclosure would provide the 
means of protecting our sensitive commercial information and the 
identity of those sensitive locations. Moreover, our right under the 
Additional Protocol to exercise the NSE would be undermined if 
information pertaining to excluded locations or activities were subject 
to domestic release.

Simplified Reporting
    Based on studies conducted by the Departments of Commerce and 
State, we estimate that no more than 500 commercial locations or 
activities outside of the NRC's jurisdiction will be subject to 
declaration (excluding the one-time submission of declarations for 
abandoned uranium mines, which may total more than 1,000). Information 
required to be submitted will be kept to the minimum necessary to meet 
U.S. treaty obligations. In order to simplify reporting requirements, 
we are developing check-box forms that limit the need for free-style 
writing. Companies engaged in multiple activities subject to 
declaration may submit a combined declaration. BIS also will permit 
commercial locations to submit declarations electronically via the 
internet. After submitting initial declarations, companies whose 
activities remain unchanged from the previous calendar year will simply 
need to submit a ``no-change'' form, thereby further reducing paperwork 
burdens.

Industry Outreach
    As was done in preparation for CWC implementation, BIS will conduct 
seminars, training and other outreach to industry in order to assist 
companies in understanding and implementing their declaration and 
complementary access obligations. We will also offer site assistance 
visits to companies that seek help in preparing for inspections. A 
primary focus of such outreach is to assist companies in identifying 
and protecting proprietary and other sensitive information and 
technology.

Complementary Access
    As we have successfully done during 47 CWC inspections, BIS will 
manage complementary access visits at commercial locations. BIS will 
escort inspectors from the time they arrive at the front gate of a 
location until they depart the location. Based on discussions with the 
IAEA, we anticipate receiving no more than a few such visits annually. 
We will work with the Department of Defense and other agencies to 
ensure that a security countermeasures expert is available to 
participate on BIS host teams and to provide expertise with regard to 
inspecting IAEA equipment for integrity and safety purposes.

Advance Preparation for Complementary Access
    Under the CWC, we have found that the ability to provide advance 
assistance to facilities prior to the inspection team's arrival is 
invaluable. Such assistance includes training company personnel on 
escort techniques to facilitate compliance with verification aims and 
to protect confidential information. We will make such services 
available in the event of a complementary access visit under the 
Additional Protocol as well. Moreover, should an inspection take place 
at a location under contract by the U.S. Government, any agency 
concerned will participate on the host team and instruct BIS as to 
whether and how to invoke the NSE to manage access pursuant to Article 
1.c of the Additional Protocol.

Managed Access and Protection of Confidential Information
    In addition, BIS will vigorously employ the managed access measures 
permitted under Article 7 of the Additional Protocol and contained in 
the U.S. Subsidiary Arrangement to protect confidential or proprietary 
information. Invocation of managed access techniques does not require 
advance agreement with the IAEA. As with our implementation of CWC 
inspections, we will work closely with companies to identify and 
protect confidential information, and will not respond to IAEA 
inspector questions not directly related to compliance with the 
Additional Protocol.

Basis for IAEA Complementary Access
    The most effective way to protect confidential and other sensitive 
information is to avoid complementary access visits. The United States 
has no plans to volunteer a commercial location for complementary 
access. Unlike the routine inspection provisions of the CWC, the IAEA 
will not seek to routinely verify declarations submitted pursuant to 
the Additional Protocol. For uranium mines, the IAEA has access on a 
selective basis to assure the absence of undeclared nuclear material 
and activities. For all other commercial locations that will be subject 
to BIS regulations, the IAEA will have access to a location only after 
the IAEA gives the United States an opportunity to resolve a question 
or inconsistency and only where the visit would be consistent with the 
requirements of the Fourth Amendment. BIS's objective is to ensure the 
submission of complete and accurate declarations in order to preclude 
the need for complementary access at these commercial locations. In 
addition to providing support to companies to ensure accurate 
declarations, BIS will work closely with companies to develop a 
comprehensive U.S. response to an IAEA clarification request if one is 
received.
    Nevertheless, prudent planning dictates that BIS conduct site 
assistance visits to help locations prepare for complementary access 
visits, particularly any locations that are co-located with sensitive 
programs. As demonstrated under the CWC, hosting an inspection is 
greatly facilitated by advance planning and proper execution.

Voluntary Consent and Warrants
    Regardless of the location to be inspected, the Administration's 
draft implementing legislation provides that a complementary access 
visit will not occur unless a company grants consent or an 
administrative search warrant is obtained, except in any situations 
where such consent or warrant is not required by the Fourth Amendment.

IAEA Protection of Confidential Information
    Article 15 of the Additional Protocol requires the IAEA to maintain 
a stringent regime to ensure protection of confidential information. No 
information submitted to the IAEA is subject to release without a state 
party's consent. While certain confidential information may be required 
to be released to the IAEA in order to comply with the Additional 
Protocol, it will be kept to a minimum and the U.S. Government will 
closely monitor the IAEA's adherence to the requirements of protecting 
such information. At a minimum, BIS will review all information prior 
to release to IAEA inspectors to ensure it is relevant to the 
Additional Protocol. Additionally, no company documentation, including 
photographs, may be taken off-site by IAEA inspectors without BIS's 
approval.

Vetting of Inspectors
    In preparation for complementary access visits, the U.S. Government 
has the right to exclude certain inspectors from inspecting locations 
in the United States. We will work with the interagency community to 
exercise this right with regard to nationals from terrorist-supporting 
countries and will take account of espionage concerns when vetting 
inspector lists.

Entry-Into-Force
    With regard to entry-into-force, we are committed to implementing 
the requirements of the Additional Protocol as soon as possible after 
ratification and enactment of implementing legislation. However, to 
ensure that proper protections are established and industry has 
adequate time to understand and implement its reporting obligations, 
entry-into-force will not occur until BIS publishes its regulations in 
final form and vulnerability assessments of declared locations of 
direct national security significance are completed. In the interim, 
BIS will promulgate a proposed rule and offer interested parties an 
opportunity to comment.

Expected Low Burden to Industry
    Based upon the limited response to our request for public comments 
on the Additional Protocol in a Federal Register Notice of Inquiry and 
discussions with the Nuclear Energy Institute, we do not anticipate 
that implementation will be overly burdensome on industry. The Nuclear 
Energy Institute has stated that it ``. . . does not foresee 
significant burdens on industry from ratification and imposition of the 
U.S. Additional Protocol.'' \1\
---------------------------------------------------------------------------
    \1\ ``Comments on the Protocol Additional to the Agreement Between 
the United States of America and the International Atomic Energy Agency 
Concerning the Application of Safeguards in the United States of 
America (`U.S. Additional Protocol') [67 Fed.Reg. P. 70049-November 20, 
2002]'', Nuclear Energy Institute, January 23, 2003.
---------------------------------------------------------------------------
    Our experience with implementing the CWC's declaration and 
inspection requirements also suggests that the impact of the Additional 
Protocol on industry will be modest. The limited amount of information 
required to be declared will minimize the burden on industry from 
filling out forms. Moreover, complementary access visits will occur 
less frequently and their duration will be much shorter than CWC 
inspections, based on the IAEA's current practice in other states that 
have implemented the Additional Protocol. As we proceed with 
implementation, BIS will coordinate closely with affected companies to 
ensure declaration forms are user-friendly and implementation 
procedures are fully understood.

                               CONCLUSION

    In conclusion, while the bulk of U.S. locations affected by the 
Additional Protocol are engaged in purely commercial or academic 
activities, the burdens are expected to be low and the potential 
vulnerabilities can be mitigated through a public-private partnership. 
The Department of Commerce recognizes the international 
nonproliferation benefits of this agreement and will do its utmost to 
support the treaty's nonproliferation goals. We will demonstrate 
industry compliance while protecting confidential information and 
minimizing the burden on industry.

    The Chairman. Well, thank you very much, Secretary 
Lichtenbaum.
    At this point, let me indicate that I have received word 
that Senator Biden will not be with us. And let me offer a word 
of explanation to our witnesses, as well as to those who are in 
the hearing today. Both of the political parties, Republican 
Senators and Democratic Senators, are involved in policy 
retreat deliberations today and tomorrow, and so they are there 
doing that work. But I felt that the issue before us, this 
Protocol, is so important so we should proceed today. We very 
much appreciate your cooperation in coming.
    Obviously, the full record will be made available to our 
colleagues. We will have a committee markup in which they will 
have an opportunity to read the materials and to discuss them 
fully. As I have indicated, the staff, Republican and 
Democratic, have been very active in working with the 
administration, including figures such as yourselves, to make 
certain that we do the right thing for the country and that, as 
rapidly as possible, we have a very sound piece of legislation 
to place before the Senate.
    So I will put in the record Senator Biden's opening 
statement, which will come directly after the one that I 
delivered this morning, and before the testimony of our 
witnesses.
    I now call upon Secretary Burk.

 STATEMENT OF MS. SUSAN F. BURK, ACTING ASSISTANT SECRETARY OF 
    STATE FOR NON-PROLIFERATION, U.S. DEPARTMENT OF STATE, 
                         WASHINGTON, DC

    Ms. Burk. Thank you very much.
    Mr. Chairman, I want to thank you and the committee for 
inviting me here today to discuss the U.S.-IAEA Additional 
Protocol (USAP), an important amendment to our longstanding 
Safeguards Agreement with the International Atomic Energy 
Agency (IAEA).
    The President strongly believes that implementation of the 
U.S.-IAEA Additional Protocol is in the best interest of the 
United States. Senate approval of the Additional Protocol will 
help sustain our longstanding record of voluntary acceptance of 
nuclear safeguards and greatly strengthen our ability to 
promote universal adoption of the Model Additional Protocol, a 
central goal of the President's non-proliferation policy.
    Mr. Chairman, your original request was for Under Secretary 
of State John Bolton to appear before you today. As he 
discussed with you last week, unfortunately he cannot be here, 
as he is in Moscow for consultations on various international 
security matters. Please be assured, however, that the 
testimony I will give today, on behalf of the administration, 
in favor of ratification represents the administration 
position, which, of course, Mr. Bolton fully supports.
    I'd like to summarize some of the key points from the 
longer testimony which we have submitted for the record.
    First, let me begin by discussing our experience, to date, 
in implementing IAEA safeguards, pursuant to our Safeguards 
Agreement with the IAEA, which has been in force since 1980. We 
concluded this agreement, also known as the U.S. Voluntary 
Offer, to demonstrate our willingness to accept international 
safeguards under virtually the same terms and conditions that 
non-nuclear weapon states are called upon to accept safeguards 
under the Nuclear Non-Proliferation Treaty.
    The key difference in our Voluntary Offer is the inclusion 
of our right to invoke, unconditionally, a national security 
exclusion to protect national security information. Under that 
agreement, the U.S. has made available for IAEA's safeguards 
inspection over 250 civil nuclear facilities. These include a 
large number of power reactors and research reactors, 
commercial fuel fabrication plants, uranium enrichment plants, 
as well as other types of facilities.
    In the case of a non-nuclear weapon state, the IAEA would 
have an obligation to inspect any such facility, as well as 
many other locations where nuclear material is used. In the 
United States, in contrast, the IAEA has the right, but not the 
obligation, to select facilities for inspection. In more than 
two decades, the IAEA has conducted inspections at only 18 of 
these facilities, and never at more than five facilities in any 
one year. These inspections have been carried out on a 
cooperative basis with the United States, and I'm confident 
that this longstanding pattern of cooperation will continue as 
we implement the Additional Protocol.
    In order to explain why the Additional Protocol is so 
important to curbing proliferation, we need to step back to the 
end of the Persian Gulf war when the world community learned 
the extent of Iraq's clandestine pursuit of an advanced program 
to develop nuclear weapons. Although the IAEA had not been lax 
in fulfilling their obligations in Iraq, Iraq's nuclear program 
had been completely and deliberately hidden from IAEA 
inspectors. IAEA member states simply had not given the agency 
the tools and mandates to detect a clandestine program such as 
Iraq's.
    To address this program, the IAEA Board of Governors agreed 
on a series of measures that it could take to strengthen 
safeguards under its existing legal authority. It also agreed 
to begin negotiation on another set of measures, which it did 
not then have the legal authority to implement. These measures 
came to be incorporated in the Model Additional Protocol.
    The United States took a leading role in the negotiations 
of the Model Protocol. Several other industrialized states, 
including close allies, were hesitant to support so substantial 
an expansion of declaration requirements and IAEA access. 
Following the example of our Voluntary Offer, the United States 
stated during the negotiations that it would accept the 
provisions of the Model Protocol, subject to a national 
security exclusion. By continuing our willingness to submit to 
the same safeguards on all of our civil nuclear facilities that 
non-nuclear weapon states parties to the NPT are subject to, 
the United States intends to demonstrate that adherence to the 
Model Protocol does not place other countries at a commercial 
disadvantage. We strongly believe our success in achieving a 
strong Model Protocol depended on our voluntary acceptance of 
all measures in the Model Protocol.
    Similarly, U.S. signature of our Additional Protocol was a 
significant factor in the early decision by many non-nuclear 
weapon states to accept the protocol. A number of our close 
friends and allies have also relied on our pledge in persuading 
their legislatures to approve their Additional Protocols.
    The Additional Protocol requires non-nuclear weapon states 
to declare, to the IAEA, a number of nuclear and nuclear-
related items, materials, and activities that, while they could 
be part of a peaceful nuclear program, would also be required 
for a covert nuclear weapons program. Specifically, non-nuclear 
weapon states must report exports of nuclear-related items 
controlled by the Nuclear Suppliers Group, confirm imports of 
such items, and report domestic manufacturing of key items. 
These states must also report exports, imports, and stockpiles 
of raw uranium and thorium that could be used as feed material 
for a covert nuclear program, as well as information related to 
uranium mines, uranium and thorium concentration plants, uses 
of each building on the sites of safeguarded nuclear 
facilities, construction of new nuclear facilities, and certain 
nuclear-related research and development work not involving 
nuclear material. Thus, a proliferator having an Additional 
Protocol in force would have to successfully conceal a much 
broader range of activities and facilities in its covert 
nuclear program to escape detection.
    The Additional Protocol provides the IAEA with three 
important types of access rights to enable it to detect and 
expose cheating through use of spot-checks, as needed, in non-
nuclear weapon states. These include: Access to locations 
declared by the state where nuclear facilities or materials are 
located, ``on a selective basis,'' in order to assure the 
absence of undeclared nuclear material and activities; Access 
rights at other declared locations that could contribute to a 
nuclear program, to be exercised only in the event of a 
question or inconsistency related to the state's declarations. 
Such access is allowed, in general, only following consultation 
with the state to resolve the question or inconsistency; and 
Circumscribed access rights at undeclared locations, also 
available only in the event of a question or inconsistency 
related to the state's declarations. Again, such access 
normally follows consultation with the state to resolve the 
question or inconsistency. In addition, the range of activities 
that the IAEA may carry out at undeclared locations is narrowly 
restricted.
    The U.S. Additional Protocol includes all the above 
provisions of the Model Protocol, but, as is the case in our 
Voluntary Offer Safeguards Agreement, the Additional Protocol 
also includes one other major provision that is unique to our 
status as a nuclear weapons state: the ``national security 
exclusion.'' This provision states the United States will 
apply, and permit the agency to apply, the provisions of the 
protocol, ``excluding only instances where its application 
would result in access by the agency to activities with direct 
national security significance to the United States or to 
locations or information associated with such activities.''
    Unlike the Chemical Weapons Convention, the Intermediate 
Range Nuclear Forces Treaty, and other treaties that rely on 
procedural restraints on inspectors to protect U.S. national 
security interests, the United States has the right to deny 
access or exclude inspection activities on the basis of the 
national security exclusion. Since the national security 
exclusion makes clear that the United States will have 
undeclared nuclear material and activities, both the United 
States and the IAEA, as well as the IAEA member states, 
recognize that inspections in the United States serve primarily 
the symbolic purpose of demonstrating U.S. commitment to 
safeguards and its willingness to accept the burdens that their 
applications might entail.
    In particular, the United States will not provide to the 
IAEA information of direct national security significance to 
the United States, or access to activities and locations of 
direct national security significance to the United States; and 
exclude inspector activities that are inconsistent with the 
national security exclusion at a given location. The national 
security exclusion, therefore, gives the United States an 
extraordinary, broad, legal means to prevent the transfer of 
information to the IAEA.
    The Model Protocol's provisions regarding declarations and 
access are aimed at making it harder for cheaters, such as 
Iran, Iraq, North Korea, and Libya, to hide undeclared nuclear 
activities, as you mentioned in your statement, and either at 
declared facilities or at other locations. For this reason, the 
Protocol gives the IAEA access rights in short timeframes, 
particularly to un-safeguarded buildings at sites of declared 
nuclear facilities.
    If an Additional Protocol had been in force, safeguards 
inspectors at Iraq's Tuwaitha facility could have required 
access to other buildings at that site within a period as short 
as 2 hours, and this would have enabled them to detect elements 
of Iraq's clandestine nuclear weapons program. In this way, the 
Protocol seeks to force a prospective proliferator to hide its 
covert activities away from its declared nuclear activities, 
where they are easier to detect.
    Iraq and others have also carried out covert activities far 
from declared sites, to avoid IAEA access. To address this 
problem, the Additional Protocol gives the IAEA the authority 
to seek access at undeclared locations based on questions and 
inconsistencies that arise regarding the state's declaration. 
The IAEA can, thus, act on evidence uncovered in its internal 
information evaluation efforts or provided by members states or 
other credible sources.
    Perhaps the best example of the benefits of the Protocol is 
the present situation in Iran. While there have long been 
grounds for concern about Iran's nuclear activities, the 
existing safeguard system permitted Iran to carry out many 
aspects of its program undetected. Under its Safeguards 
Agreement with the IAEA, Iran was not required to declare the 
construction of key facilities. It was slow to grant access to 
a variety of locations, and balked at IAEA use of sensitive 
environmental sampling techniques at a key location suspected 
of enrichment-related activities. If Iran had had an Additional 
Protocol in force, it would have had an obligation to declare 
many of these and other activities at an earlier stage.
    Thus, a key non-proliferation goal of the United States has 
been to increase non-nuclear weapon states adherence to the 
Additional Protocol. Entry into force of the U.S.-IAEA 
Additional Protocol would provide a powerful tool in furthering 
this goal and, thereby, enhance U.S. national security.
    Throughout the negotiation of the Model Additional 
Protocol, there was strong interest in giving the IAEA the 
tools it needed to conduct inspections, while protecting the 
rights of the states inspected. In addition to the national 
security exclusion, the U.S. Additional Protocol includes the 
same protections for commercially sensitive information as the 
Model Protocol. For example: Information on nuclear R&D 
activities declared to the IAEA is limited to location and 
general description, and does not include details or results; 
Information declared to the IAEA on nuclear-related 
manufacturing is limited to location and the scale of 
operation.
    Access is designed to be infrequent and for research and 
development, as well as nuclear-related manufacturing, based on 
unresolved questions or inconsistencies. Inspection activities 
are limited, and relevant to detection of undeclared nuclear 
material and activities.
    No other state may request IAEA access in the United 
States, unlike the challenge inspection system under the 
Chemical Weapons Convention. The IAEA is required to maintain a 
stringent regime for protection against disclosure of 
commercial, technological, and industrial confidential 
information, and the regime is subject to periodic review and 
approval by the United States and other IAEA board members.
    Only those individuals to whom the United States agrees may 
be assigned by the IAEA to conduct inspections in the United 
States under the U.S. Safeguards Agreement or for access under 
the U.S. Additional Protocol. If the U.S. objects to a 
particular individual on the proposed list of inspectors, and 
so notifies the IAEA, the IAEA must remove that person from the 
list of inspectors designated for the United States.
    Whenever requested by the United States, managed access 
arrangements must be used to prevent disclosure of 
proliferation sensitive information or proprietary or 
commercially sensitive information. And, finally, both the IAEA 
and its officers or employees may be subject to legal process 
in the event of unauthorized disclosure of confidential 
information. The IAEA can withdraw immunity of inspectors in 
cases of abuse.
    In conclusion, Mr. Chairman, the administration believes 
that Senate advice and consent to ratification of the U.S. 
Additional Protocol will advance the national security 
interests of the United States by strengthening the global 
nuclear non-proliferation regime. At the same time, the 
administration believes that adequate protections have been 
built into the Protocol to ensure that its application in the 
United States will not compromise activities or information of 
direct national security significance.
    I want to thank you. And I also look forward to any 
questions when my colleagues have finished.
    [The prepared statement of Ms. Burk follows:]

     Prepared Statement of Acting Assistant Secretary Susan F. Burk

                              INTRODUCTION

    Mr. Chairman: thank you and the Committee for inviting me here 
today to discuss the U.S.-IAEA Additional Protocol (USAP), an important 
amendment to our longstanding safeguards agreement with the 
International Atomic Energy Agency (IAEA). The President strongly 
believes that implementation of the U.S.-IAEA Additional Protocol is in 
the best interest of the United States. Senate approval of the 
Additional Protocol will help sustain our longstanding record of 
voluntary acceptance of nuclear safeguards and greatly strengthen our 
ability to promote universal adoption of the Model Additional Protocol, 
a central goal of the President's nonproliferation policy.
    Mr. Chairman, your original request was for Under Secretary of 
State John Bolton to appear before you today. As he discussed with you 
last week, unfortunately he cannot be here today as he is in Moscow for 
consultations on various international security matters. Please be 
assured, however, that the testimony I will give today on behalf of the 
Administration, in favor of ratification, represents the Administration 
position, which of course Mr. Bolton fully supports.
    As the number of non-nuclear weapon states adhering to Additional 
Protocols increases, the international nuclear safeguards system will 
be strengthened. It will give greater capabilities to provide assurance 
to the United States and other nations that nuclear activities in non-
nuclear weapon states are directed toward peaceful purposes only. 
Implementation of Additional Protocols will help dissuade potential 
proliferators from using safeguarded nuclear material for other than 
peaceful purposes, or engaging in clandestine nuclear activities, 
because of the increased risk of being caught.

                   ORIGIN OF THE ADDITIONAL PROTOCOL

    I would like to begin by underscoring that the United States relies 
heavily on the IAEA safeguards system to detect and deter the diversion 
of nuclear material for use in covert weapons programs. The IAEA, as 
the recognized international nuclear inspection organization, is 
instrumental in unraveling covert, and often complex, nuclear 
activities, e.g., the Iraqi and DPRK nuclear weapons program. The 
tenacious approach taken during the last year by IAEA inspectors in 
Iran is to be highly commended.

Iraq Experience
    The process of refining and strengthening IAEA safeguards has been 
ongoing since their inception. The IAEA, with strong U.S. support, 
undertook a major strengthening effort in the 1990s, in direct response 
to discoveries made during IAEA inspections in Iraq following the first 
Gulf War. These inspections uncovered an ambitious clandestine nuclear 
weapons program in Iraq, involving a number of undeclared 
installations. Of particular significance was a covert enrichment 
facility located adjacent to a declared nuclear facility where the 
Agency had been applying its safeguards for years. The IAEA had not 
detected this concealed activity before the war because its Member 
States only required it to ensure against the non-diversion of declared 
material. The existing safeguards system was designed almost 
exclusively for detecting diversion of nuclear material only at 
declared facilities. Under the then-existing safeguards system, the 
IAEA had only a limited capability to determine whether Iraq (or any 
other state) was engaged in undeclared or clandestine nuclear 
activities. To address this and other deficiencies, the United States 
and other IAEA member states conducted a review of the nuclear 
safeguards system. Subsequently, the IAEA Board of Governors decided to 
make broader use of the Agency's existing authority and to provide the 
additional authority and tools needed by IAEA inspectors to uncover 
undeclared nuclear activities.
    During the course of this review of the safeguards system, the IAEA 
identified some meaningful rights whose full use could meaningfully 
improve the capabilities of the system, e.g., special inspections and 
environmental sampling. A number of deficiencies in the system were 
also noted. To fill these gaps in the IAEA's authority, the IAEA Board 
of Governors created an open-ended negotiating committee of Member 
States that met 55 times during 1996-1997 to agree upon the text for a 
Model Additional Protocol. The resulting text for the Model Additional 
Protocol was approved by the Board of Governors in 1997. The United 
States worked hard to bring these negotiations to a successful 
conclusion, and believes that the measures contained in the Model 
Additional Protocol greatly improve the IAEA's ability to uncover 
undeclared nuclear material and activities. The United States signed 
its Protocol on June 12, 1998.

Application of the Additional Protocol to Non-Nuclear Weapon States
    The IAEA uses the Model Additional Protocol for negotiation and 
conclusion of Additional Protocols that amend and strengthen states' 
existing comprehensive safeguards agreements. As such, Additional 
Protocols broaden the information states are required to give to the 
IAEA and provide additional access rights for IAEA inspectors to verify 
those declarations when necessary. Non-nuclear weapon states must 
incorporate all the measures in the Model Additional Protocol in 
negotiating their Additional Protocols. Nuclear weapon states and 
countries not party to the NPT, however, are free to chose among or 
limit the application of the provisions of the Model Additional 
Protocol, since they have not made a commitment to place all nuclear 
activities under safeguards.
    The United States, consistent with our rights as a nuclear weapon 
state, has chosen to limit the application of the Protocol's 
provisions. I will outline briefly for you the provisions of the Model 
Additional Protocol, then discuss how the Protocol's provisions will be 
applied in the United States.

Provisions of the Model Additional Protocol
    The Model Additional Protocol requires states to declare to the 
IAEA a number of nuclear and nuclear-related items, materials, and 
activities that, while they could be part of a peaceful nuclear 
program, would be required for a covert nuclear weapons program. 
Specifically, the Protocol requires states to report exports of 
nuclear-related items controlled by the Nuclear Suppliers Group, 
confirm imports of such items, and report domestic manufacturing of key 
items. It also requires states to report exports, imports, and 
stockpiles of raw uranium and thorium that could be used as feed 
material for a covert nuclear program, and also report information 
related to uranium mines, uranium and thorium concentration plants, 
uses of buildings on the sites of safeguarded nuclear facilities, 
construction of new nuclear facilities, and certain nuclear-related 
research and development work not involving nuclear material.
    A proliferator having an Additional Protocol in force would have to 
successfully conceal a much broader range of activities and facilities 
in its covert nuclear program to escape detection. The IAEA would have 
more types of information available as triggers for access requests. 
Import and export reporting would give the IAEA opportunities to 
compare declarations from different countries to detect suspicious 
activity, thereby requiring air-tight connivance between regulatory 
authorities in supplier and recipient counties in order to deceive the 
IAEA. The requirement that countries declare R&D activities, mining and 
materials stocks, facility construction, and manufacturing and the uses 
of unsafeguarded buildings at nuclear facilities increases the 
potential avenues by which information acquired by the IAEA could be 
used to reveal the existence of covert nuclear programs in their early 
stages: such revelations would be actionable immediately, since they 
would be based upon state-provided declarations.

Access to Locations
    The Model Additional Protocol does not provide for full IAEA 
verification of all of the new declarations required. Indeed, it 
explicitly excludes creation of any system for ``mechanistically or 
systematically'' seeking to verify the new declarations. Verification 
in detail of all declarations was judged unnecessarily expensive and 
burdensome for the IAEA and inspected parties. But the Additional 
Protocol does provide the IAEA with three important types of access 
rights to enable the IAEA to detect and expose cheating through use of 
spot checks, as needed:

   Access to locations declared by the state where nuclear 
        facilities or materials are located ``on a selective basis'' in 
        order to assure the absence of undeclared nuclear material and 
        activities;

   Narrower access rights at other declared locations that 
        could contribute to a nuclear program, to be exercised only in 
        the event of a question or inconsistency related to the State's 
        declarations. Such access is allowed, in general, only 
        following consultation with the state to resolve the question 
        or inconsistency; and

   Circumscribed access rights at undeclared locations, also 
        available only in the event of a question or inconsistency 
        related to the State's declarations. Again, such access 
        normally follows consultation with the state to resolve the 
        question or inconsistency. In addition, the range of activities 
        that the IAEA may carry out at undeclared locations is narrowly 
        restricted.

Benefit of the Additional Protocol for U.S. National Security
    The Model Additional Protocol's provisions regarding declarations 
and access are aimed at making it harder for cheaters to hide 
undeclared nuclear activities, either at declared facilities or at 
other locations. Iraq had co-located clandestine nuclear activities 
with their declared nuclear facilities in order to mask its covert 
activities and for reasons of convenience and economy. For this reason, 
the Protocol gives the IAEA access rights in short time frames at sites 
of declared nuclear facilities. If an Additional Protocol has been in 
force, safeguards inspectors at Iraq's Tuwaitha facility could have 
required access to other buildings at that site within a period as 
short as two hours, enabling them to detect undeclared activities. In 
this way, the Protocol seeks to force a proliferator from hiding its 
covert activities away from its declared nuclear activities rendering 
it easier to detect.
    Iraq and others have also carried out covert activities far from 
declared sites to avoid IAEA access. This is why the Additional 
Protocol gives the IAEA the authority to seek access at undeclared 
locations, based on questions and inconsistencies that arise regarding 
the State's declaration. The IAEA can thus act on evidence uncovered in 
its internal information evaluation efforts or provided by member 
states or other credible sources.
    Having gained access, the IAEA has the ability, particularly 
through sensitive sampling techniques that detect trace signatures of 
nuclear activities, to find evidence of covert activities. It was IAEA 
sampling in North Korea in 1992 that demonstrated significant omissions 
in North Korea's declarations concerning its plutonium production 
activities, making clear to the world that the DPRK was cheating on its 
nonproliferation obligations. More recently, IAEA sampling demonstrated 
the presence of enriched uranium at certain locations in Iran, despite 
initial Iranian assertions by Iran that it had not carried out 
enrichment activities.
    Of course, proliferators may also resist IAEA demands for access to 
the incriminating facilities or information. A refusal of access, 
however, can be itself significant evidence of noncompliance. It was 
the DPRK's refusal to cooperate with the IAEA in providing access to 
sites that ultimately led to the IAEA Board of Governors finding the 
DPRK in noncompliance with its safeguards agreement. Given the broader 
IAEA access rights under the Additional Protocol, a state refusing to 
permit access in order to hide a clandestine nuclear weapons program is 
likely to raise concerns at an earlier stage of the program, enabling 
the Board of Governors and the international community to respond 
sooner.
    Perhaps the best example of the benefits of the Protocol is the 
present situation in Iran. While there have long been grounds for 
concern about Iran's nuclear activities, the existing safeguards system 
permitted Iran to carry out many aspects of its program undetected. For 
example, Iran was not required to declare the construction of key 
facilities. Moreover, once challenged by the IAEA, Iran, was slow to 
grant access to a variety of locations, and balked at IAEA use of 
sensitive environmental sampling techniques at a key location suspected 
of enrichment-related activities. If Iran had had an Additional 
Protocol in force, it would have had an obligation to declare many of 
these and other activities at an early stage in their construction; 
there would have been no doubt about the IAEA's right to access, and no 
legitimate grounds for Iran to deny or delay. Resistance to inspection, 
or discovery of these facilities in advanced stages of construction 
would have been unambiguous violations of Iran's obligations.
    Thus, a key nonproliferation goal of the United States has been to 
increase non-nuclear weapon state adherence to the Additional Protocol. 
Entry into force of the U.S.-IAEA Additional Protocol would provide a 
powerful tool in furthering this goal, and thereby enhance U.S. 
national security.

                           U.S.-IAEA PROTOCOL

Experience with IAEA Safeguards
    Let me say a few words about our experience since 1980 in 
implementing our Voluntary Offer Agreement with the IAEA, in force 
since 1980.
    The Treaty on the Non-Proliferation of Nuclear Weapons (the 
``NPT'') requires nonnuclear weapon state parties to accept IAEA 
safeguards on all nuclear material in all of their peaceful nuclear 
activities. The United States, as a nuclear weapon state party to the 
NPT, is under no obligation to accept such safeguards. However, 
beginning with President Johnson's 1967 pledge, it has been the 
announced policy of the United States since then to permit the 
application of IAEA safeguards to all of its nuclear facilities, except 
for those facilities and activities excluded for national security 
reasons. By submitting itself to the same safeguards on all of its 
civil nuclear facilities that non-nuclear weapon state parties are 
subject to, the United States intended to demonstrate that adherence to 
the NPT did not place other countries at a commercial disadvantage. 
This offer was critical to gaining acceptance of the NPT by countries 
such as Germany and Japan.
    Pursuant to our Voluntary Offer Agreement with the IAEA, the United 
States has made eligible for IAEA safeguards inspection over 250 civil 
nuclear facilities. These include a large number of power reactors and 
research reactors, commercial fuel fabrication plants, uranium 
enrichment plants, as well as other types of facilities.
    In the ease of a non-nuclear weapon state, the IAEA would have an 
obligation to inspect all of these facilities, as well as many other 
locations where nuclear material is used. In the United States, in 
contrast, the IAEA has the right, but not the obligation, to select 
facilities for inspection. In more than two decades, the IAEA has 
conducted inspections at only 18 of these facilities, and never at more 
than five facilities in any one year. These inspections have been 
carried out on a cooperative basis with the United States. I'm 
confident this longstanding pattern of cooperation will continue. A 
fundamental point here is that safeguards in the United States are not 
directed at uncovering illicit or non-compliant nuclear activities or 
transfers (as they are in non-nuclear weapon states). Rather, they 
serve the basically political purpose of underscoring U.S. support for 
the regime and voluntary cooperation with the IAEA, as well as U.S. 
willingness to accept for the American nuclear industry a fair share of 
the economic burden of inspections. As I will discuss in greater detail 
later, these were key elements of the political bargain that allowed 
successful conclusion of the NPT. Thus, the IAEA's ability to conduct 
inspections in the United States plays a valuable role in helping to 
strengthen the political case for application of IAEA safeguards world-
wide.
    The IAEA, because of budgetary pressures, discontinued inspections 
in the United States in 1993. At the request of the U.S. Government, 
the IAEA resumed inspections in 1994 by applying safeguards to several 
tons of weapons-usable nuclear material, which had been declared excess 
to U.S. national security stockpiles. The IAEA undertook this effort on 
the condition that the United States reimburse the IAEA. At present, 
the IAEA applies safeguards at four U.S. facilities.

                    U.S. NATIONAL SECURITY EXCLUSION

    The U.S. Additional Protocol, which would amend the U.S. Voluntary 
Offer of 1980, includes all the provisions contained in the Model 
Protocol. However, it includes one other major provision that is unique 
to our status as a nuclear weapon state: the ``national security 
exclusion.'' This provision states that the United States will apply 
and permit the Agency to apply the provisions of the Protocol 
``excluding only instances where its application would result in access 
by the Agency to activities with direct national security significance 
to the United States or to locations or information associated with 
such activities.'' Thus, implementation of the USAP will be entirely 
different in both practice and concept than in non-nuclear weapon 
states. Similarly, unlike the CWC, the INF, and other treaties that 
rely on procedural restraints on inspectors to protect U.S. national 
security interests, the United States has the right to deny access or 
exclude inspection activities on the basis of the national security 
exclusion. Since the national security exclusion makes clear that the 
United States will have undeclared nuclear material and activities, 
both the United States and the IAEA, as well as IAEA Member States, 
recognize that inspections in the United States serve primarily the 
symbolic purpose of demonstrating U.S. commitment to safeguards and its 
willingness to accept the burdens their application may entail. In 
particular, the United States:

   will not provide to the IAEA information of direct national 
        security significance to the United States or access to 
        activities and locations of direct national security 
        significance to the United States; and

   will exclude inspector activities that are inconsistent with 
        the national security exclusion at a given location.

    The national security exclusion, therefore, gives the United States 
an extraordinary legal means to protect and prevent the transfer of 
information to the IAEA and exclude inspectors' access in the United 
States wherever required for the protection of activities of direct 
national security significance to the United States or of information 
or locations associated with such activities.
    Because the IAEA will have the legal right to conduct all 
activities permitted under our Protocol, steps have been taken to 
ensure that our national security interests are protected if and when 
the IAEA decides to exercise those rights. At the same time, the United 
States has important equities in promoting a strong and effective 
nuclear nonproliferation regime, including the need to avoid disclosure 
of nuclear weapon information to non-nuclear weapon states, which would 
violate our NPT obligations.

          PHILOSOPHY BEHIND THE U.S.-IAEA ADDITIONAL PROTOCOL

    During the negotiation of the Model Protocol, many non-nuclear 
weapon state parties to the NPT urged the United States, as the 
strongest proponent, to accept on a voluntary basis the provisions of 
the Model Protocol. Following the example of the Voluntary Offer, the 
United States stated during the negotiations that it would accept the 
provisions of the Model Protocol, subject to a National Security 
Exclusion. By submitting itself to the same safeguards on all of its 
civil nuclear activities that non-nuclear weapon state parties to the 
NPT are subject to, the United States intends to demonstrate that 
adherence to the Model Protocol does not place other countries at a 
commercial disadvantage.
    The United States took a leading role in the negotiations of the 
Model Protocol. Several other industrialized states, including close 
allies, were hesitant to support so substantial an expansion of 
declaration requirements and IAEA inspection powers. Our success in 
achieving a strong Model Protocol was critically dependent on our 
voluntary acceptance of the Model Protocol measures. Similarly, U.S. 
signature of our Additional Protocol was a significant factor in the 
early decision by many non-nuclear weapon states to accept the 
Protocol. A number of our close friends and allies have also relied on 
our pledge in persuading their legislatures to approve their Additional 
Protocols.
    Nevertheless, implementation of the USAP is fundamentally different 
in concept from implementation of the Additional Protocol in non-
nuclear weapon states. While the fundamental purpose of the Model 
Additional Protocol is to provide increased assurance that non-nuclear 
weapon states do not have undeclared nuclear activities, all states 
understand that nuclear weapon states will have undeclared activities. 
It is a matter of public record that we have, and are entitled to have, 
such activities. This has important consequences. References in the 
U.S. Additional Protocol to the ``completeness and correctness'' of 
U.S. declarations or possible ``inconsistencies'' in them have meaning 
only in the context of what we need to report; this excludes what we do 
not need to report, i.e., anything we determine to fall within the 
``national security exclusion.'' Thus, the right of the Agency to seek 
access to undeclared locations in the United States (Article 5.c) is 
uniquely limited. The IAEA does not have access rights under the 
Protocol to locations and activities that the United States excludes 
pursuant to the National Security Exclusion.
    Where not excluded on national security grounds, however, the 
United States will be required to declare certain nuclear-related 
locations and activities and to allow IAEA access under specified 
circumstances. While such access will be infrequent in non-nuclear 
weapon states we believe it is likely to be even more infrequent in the 
United States, but may nevertheless occur.
    The Additional Protocol requires the United States to provide 
information to the IAEA about locations, such as mines and 
concentration plants, producing or storing uranium and thorium or other 
materials that could serve as feed material for the nuclear fuel cycle. 
There is no provision for routine verification of these declarations, 
but the IAEA can seek access to these locations ``on a selective basis 
in order to assure the absence of undeclared nuclear material and 
activities.''
    Certain nuclear fuel cycle-related R&D and industrial activities 
will also be subject to declaration. IAEA access to these locations is 
allowed only if needed to resolve a question or inconsistency regarding 
U.S. declarations, normally only after the IAEA provides the United 
States an opportunity to clarify and resolve the question or 
inconsistency. If Agency concerns can be addressed through additional 
information from the United States, access is not required. If such 
visits do occur, so-called ``managed access'' techniques can be used to 
protect sensitive proprietary or commercially sensitive information 
from disclosure. Where managed access cannot sufficiently protect 
information of direct national security significance, the national 
security exclusion will be applied and Agency access will be denied.
    The IAEA will also have the right to request access to locations of 
its own choosing. The United States, as a nuclear weapon state, has the 
right to deny access to any location where it deems the risk of 
disclosing national security information to be unacceptable; U.S. 
Government policy is to exercise this right as necessary.

                    PROTECTING SENSITIVE INFORMATION

    Throughout the negotiation of the Model Additional Protocol, there 
was strong interest in giving the IAEA the tools it needed to conduct 
inspections while protecting the rights of the states inspected. The 
U.S. Additional Protocol, in addition to the national security 
exclusion, includes all the protections for commercially sensitive 
information contained in the Model Protocol. For example:

   Information on nuclear R&D activities that must be declared 
        to the IAEA is limited to location and general description and 
        does not include details or results;

   Similarly, the required information on nuclear-related 
        manufacturing is also limited to location and the scale of 
        operation without details;

   Access is designed to be infrequent;

   Inspection activities are limited and relevant to detection 
        of undeclared nuclear material and activities;

   Unlike the Chemical Weapons Convention, there is no 
        provision in the Safeguards Agreement or the Additional 
        Protocol for any other state to request access in the United 
        States.

   The IAEA is required to maintain a stringent regime for 
        protection against disclosure of commercial, technological and 
        industrial confidential information, and the regime is subject 
        to periodic review and approval by the United States and other 
        Board members;

   Only those individuals to whom the United States agrees may 
        be assigned by the IAEA to conduct inspections in the United 
        States under the U.S. safeguards agreement or for access under 
        the U.S. Additional Protocol;

   Whenever requested by the United States, managed access 
        arrangements must be used to prevent disclosure of 
        proliferation sensitive information, or proprietary or 
        commercially sensitive information;

   Both the IAEA and its officers or employees may be subject 
        to legal process in the event of unauthorized disclosure of 
        confidential information. The IAEA can withdraw immunity of 
        inspectors in eases of abuse.

    In addition, complimentary access visits to locations in the United 
States will only be conducted consistent with the Fourth Amendment. 
This requirement was communicated, at the request of the Department of 
Justice, by a letter from Ambassador Kenneth Brill to the IAEA on 
January 23, 2004. Although, the IAEA has not yet responded to this 
letter, we expect a favorable response, and of course, will formally 
ratify the Treaty only after the IAEA communicates to us its 
acceptance.

                        IMPLEMENTING LEGISLATION

    The Administration has determined that some provisions of the U.S.-
IAEA Additional Protocol are not self-implementing. These include:

   declarations of U.S. civil nuclear activities and related 
        industry;

   restrictions on disclosure of information; and

   IAEA access to locations in the United States.

Implementing legislation, therefore, is required in order to give these 
provisions effect within the United States. The administration was 
pleased to provide its recommended legislation to the Congress late 
last year. We look forward to working closely with you on preparation 
of the final legislation.
    In this regard, I would like to reinforce how important it is to 
the Administration that the implementing legislation for the U.S. 
Additional Protocol restricts appropriately the disclosure of 
information provided by U.S. entities to the United States Government 
in execution of Protocol obligations. Under the Administration's 
proposal, such information could be disclosed only to U.S. Government 
officials, U.S. Government contractor personnel, and officials of the 
IAEA Secretariat with a clear ``need to know.'' This practice will 
ensure that the data collected under the Protocol will be used 
exclusively for the purposes of the safeguards regime. We, therefore, 
request that the implementing legislation for the Additional Protocol 
exempt information obtained by the United States Government in 
implementing the provisions of the Additional Protocol from disclosure 
under the Freedom of Information Act (FOIA).
    In conclusion, Mr. Chairman, the Administration believes that 
Senate advice and consent to ratification of the U.S. Additional 
Protocol will advance the national security interests of the United 
States by strengthening the global nuclear non-proliferation regime. At 
the same time, the Administration believes that adequate protections 
have been built into the Protocol to ensure that its application in the 
United States will not compromise activities or information of direct 
national security significance.
    Thank You. I look forward to your questions.

    The Chairman. Thank you very much, Secretary Burk.
    Let me indicate that, as you mentioned, we had a good 
conversation with Secretary Bolton last week. He came to brief 
me on developments in Libya and indicated he would be in Russia 
today, and I commended that effort. I appreciate your mention 
specifically of him and his endorsement, obviously, and perhaps 
his help in the preparation of your testimony.
    Secretary Esper.

   STATEMENT OF MARK T. ESPER, DEPUTY ASSISTANT SECRETARY OF 
 DEFENSE FOR NEGOTIATIONS POLICY, U.S. DEPARTMENT OF DEFENSE, 
                         WASHINGTON, DC

    Mr. Esper. Good morning, Mr. Chairman.
    Thank you for the opportunity to testify before the Senate 
Foreign Relations Committee in support of the United States-
IAEA Additional Protocol. My remarks today will address the 
purpose and benefits of the Additional Protocol, the likely 
impact of the Protocol on the Department of Defense, and the 
role of the Department in implementing the Protocol.
    The Defense Department supports ratification of the 
Additional Protocol because doing so demonstrates United 
States' leadership in non-proliferation and may encourage non-
nuclear weapon states to do the same. Widespread adoption of 
the Additional Protocol by other nations, and particularly by 
states of proliferation concern, would help the International 
Atomic Energy Agency detect or prevent the proliferation of the 
technology and material needed for nuclear weapons.
    Even though the United States, as a declared nuclear power, 
is under no obligation to adhere to the Protocol, by 
voluntarily imposing these requirements on ourselves we are in 
a stronger position to press other members of the Non-
Proliferation Treaty to follow our example.
    The universal acceptance of the Additional Protocol will 
help improve shortfalls in the IAEA's standing Safeguards 
Agreements. These deficiencies were highlighted by the 
discovery of Iraq's nuclear weapons program after the first 
gulf war, as well as by recent revelations of illicit nuclear 
activities by states under existing safeguards, such as Iran 
and Libya. The Protocol's declaration requirements and access 
provisions will make it harder for states to conceal such 
illicit activities in the future.
    During the negotiations of the Model Protocol, many NPT 
states parties pushed to watered-down provisions of the 
document, arguing that the intrusiveness of the Protocol's 
measures and the costs to industry would be too great. This, 
they argued, would place them at a commercial disadvantage with 
respect to the United States. To defuse this argument, the 
United States pledged to accept the Protocol in its entirety, 
even though the United States is an acknowledged nuclear 
weapons state. Our only changes were the addition of the 
national security exclusion and managed-access provision, both 
of which are necessary to protect information of direct 
national security significance. As a recognized nuclear weapons 
state, these changes are both necessary and logical.
    The Administration fully recognizes that adopting an 
instrument designed to detect the diversion of nuclear material 
in non-nuclear weapon states is not without risk. The 
intrusiveness of the Additional Protocol, both in terms of 
declaring activities and allowing access by inspectors, is 
significant. However, we are confident that liberal use of the 
protections afforded the United States by way of the national 
security exclusion and the use of managed access to protect 
sensitive information and activities can mitigate this risk. We 
believe that these measures and others will form an integrated 
framework to protect our equities. The interdependent nature of 
these measures requires that all of them be employed in order 
to effectively manage the risks.
    The United States will make full and repeated use of these 
provisions in order to protect information, locations, and 
activities of national security significance. Decisions 
regarding the use of these provisions are a unilateral 
prerogative of the United States. They are not subject to 
interpretation by, or justification to, any other party, 
including the IAEA. As this is an area of particular importance 
for the Department of Defense, I will speak to it at some 
length.
    The national security exclusion is a critical protection 
for the United States. Under this provision, the United States 
can exclude information and activities from declarations and 
deny access to IAEA inspectors anytime, anyplace. In the 
declaration process, the national security exclusion will be 
used to exclude locations, activities, and information of 
national security interest. The United States, unlike non-
nuclear weapon states, has, and will continue to have, 
undeclared nuclear material and activities outside the scope of 
the Additional Protocol. Certain activities that occur at 
locations that are part of the United States' civil nuclear 
program may also be excluded from the declaration and access 
provisions of the Additional Protocol, in accordance with the 
terms of the national security exclusion.
    Since the United States will have undeclared nuclear 
activities, IAEA activities directed toward the detection of 
these activities in the United States are not considered 
necessary to enhance non-proliferation or to serve the purpose 
of the Additional Protocol. Rather, the United States expects 
the IAEA to seek access in the U.S. for the purpose of 
increasing the effectiveness of IAEA safeguards--at facilities 
in non-nuclear weapon states or enhancing the capability of the 
IAEA to detect undeclared nuclear material and illicit 
activities in such states.
    As a general rule, declarations will not be made for any 
current or former sites, facilities, or locations that are 
owned or operated by the Department of Defense, or for other 
locations that have sensitive Defense Department equities 
associated with them. The most likely exception may be the 
Department of Energy sites to which we currently allow limited 
IAEA access in fulfillment of our existing Voluntary Offer. 
Adoption of the Additional Protocol will in no way expand IAEA 
access or rights at Department of Energy locations associated 
with sensitive Defense Department equities.
    The United States, as a nuclear weapon state, has different 
prerogatives than non-weapon states, and will, as Ambassador 
Brill has already made clear in writing to the IAEA, make, 
quote, ``full and repeated use,'' unquote, of the national 
security exclusion and managed access, to protect those 
prerogatives.
    The concept of managed access provides an additional method 
to protect sensitive information and activities at all 
locations. These measures range from shrouding and closing 
doors, to turning off the computers and other equipment to 
prevent IAEA inspectors from coming into contact with sensitive 
information. As with the national security exclusion, managed 
access measures will be applied liberally to ensure sensitive 
information is protected.
    Of course, it is important to note that before and during 
inspections, any agency with a national security equity may 
either declare a national security exclusion or employ managed 
access procedures, even if it is not the lead agency.
    Article 1 of the Additional Protocol allows the United 
States to invoke managed access to ensure that national 
security information is protected. The specific measures taken 
will be site specific.
    In addition to this provision, Article 7 permits the United 
States to invoke managed access to prevent the dissemination of 
proliferation-sensitive information, to meet safety or physical 
protection requirements, or to protect proprietary or 
commercially sensitive information. Moreover, inspectors will 
be escorted at all times when at, or in proximity of, inspected 
locations. For those possible few activities with a Defense 
Department equity that DOD allows to be declared, the 
Department will have experts on the escort team in addition to 
the Defense Threat Reduction Agency personnel who will take 
part in the inspection.
    Environmental sampling is performed by the IAEA to detect 
the presence of undeclared nuclear activities. As a nuclear 
weapon state, the United States is allowed and expected to have 
undeclared nuclear activities. The United States does not 
foresee circumstances in which the IAEA would propose to 
conduct wide-area environmental sampling in the United States, 
and believes that IAEA requests for location-specific 
environmental sampling in the U.S. would be unlikely.
    While such sampling would have little utility for 
Additional Protocol purposes in the United States, it could 
reveal information of national security significance, including 
the presence of sensitive undeclared activities. Therefore, in 
accordance with the national security exclusion, the United 
States will not allow environmental sampling with respect to 
such current or former locations, information, and activities.
    In addition to the national security exclusion and managed 
access measures, the United States will continue to review the 
IAEA list of inspectors nominated for inspection duty in the 
United States. Within the executive branch, concerned agencies 
will conduct separate checks on any potential inspectors. Any 
inspector suspected of being a national security risk will be 
flagged, and the IAEA will be notified that the person should 
not be designated as an inspector to the United States. In 
fact, the United States has already informed the IAEA that no 
individuals from states sponsors of terrorism would be allowed 
to serve as inspectors in the United States. We will continue 
to employ these vetting procedures to ensure sensitive 
information and activities are protected.
    In order to gauge risk at specific locations, vulnerability 
assessments will be conducted at potentially declarable sites 
that have national security equities. Once our implementation 
guidance has been clarified, and implementing legislation 
passed, we will revisit and update assessments that have been 
previously conducted. We are also reviewing what other sites 
may require vulnerability assessments. These assessments will 
vary based on the nature and location, among other things, of 
the site or activity. Some will be fairly simple, while others 
will require a more detailed examination.
    The key point is that the United States will complete all 
necessary assessments and implement all required security 
procedures prior to submitting our first Additional Protocol 
declaration, as due to the IAEA.
    Of course, the Nuclear Regulatory Commission, the 
Department of Energy, and the Department of Commerce are 
responsible for conducting vulnerability assessments for 
locations under their jurisdiction. Nevertheless, the Defense 
Department will work closely with these agencies on those 
locations with Defense equities to ensure these assessments are 
thorough and timely.
    Finally, it is important to note that the United States may 
remove locations from our Additional Protocol declaration at 
any time for national security reasons, and will do so as 
necessary. And because of the constantly changing security 
environment, the vulnerability of all declared locations will 
be reviewed regularly. In short, vulnerability assessments and 
security planning will continue to play an integral part in the 
preparation for making declarations to the IAEA, and allowing 
IAEA access to declared locations.
    One of the United States concerns is the protection of 
declared data once it is submitted to the IAEA. The United 
States, through its voluntary contributions to the IAEA, has 
provided technical assistance to the IAEA to improve its 
information security and its safeguards information systems. 
The IAEA makes regular reports to the Board of Governors on its 
progress in implementing security improvements in this area.
    The United States declaration submitted to the IAEA will be 
based on data provided by each agency to the Department of 
Commerce's Additional Protocol Reporting System. Before the 
Defense Department submits its data into that system, we will 
develop our own procedures and systems to evaluate relevant 
declaration data, individually and aggregated, to mitigate any 
risks. Further, the Defense Department will work closely with 
other agencies to review draft declaration inputs to ensure no 
Defense Department sensitive or classified data is collected in 
the APRS.
    In conclusion, Mr. Chairman, the administration believes 
that Senate advice and consent to ratification of the U.S. 
Additional Protocol will advance the national security 
interests of the United States. Ratification of the Additional 
Protocol demonstrates United States leadership in, and 
commitment to, non-proliferation. The United States 
ratification of the Protocol may also encourage some non-
nuclear weapon states to do the same. As a result, universal 
adoption of the Additional Protocol will provide the IAEA an 
important tool to help detect or prevent proliferation of the 
technology and material needed for nuclear weapons. At the same 
time, adequate protections have been incorporated into the 
protocol signed by the United States to allow us to prevent the 
compromise of sensitive activities and information.
    Thank you, Mr. Chairman. I look forward to your questions.
    [The prepared statement of Mr. Esper follows:]

     Prepared Statement of Deputy Assistant Secretary Mark T. Esper

    Mr. Chairman, Senator Biden, Members of the Committee:
    Thank you for the opportunity to testify before the Senate Foreign 
Relations Committee in support of the United States-IAEA Additional 
Protocol. My testimony will address the purpose and benefits of the 
Additional Protocol, the likely impact of the Protocol on the 
Department of Defense, and the role of the Department in implementing 
the Protocol.

            PURPOSE AND BENEFITS OF THE ADDITIONAL PROTOCOL

    The Defense Department supports ratification of the Additional 
Protocol because doing so demonstrates the United States' leadership in 
nonproliferation, and may encourage non-nuclear weapon states to do the 
same. Widespread adoption of the Additional Protocol by other nations--
and particularly by states of proliferation concern--would help the 
International Atomic Energy Agency (IAEA) detect or prevent the 
proliferation of the technology and materiel needed for nuclear 
weapons.
    Even though the United States, as a declared nuclear power, is 
under no obligation to adhere to the Protocol, by voluntarily imposing 
these requirements on ourselves, we are in a stronger position to press 
other members of the Non-Proliferation Treaty (NPT) to follow our 
example. In doing so, we are supporting the work of the IAEA in 
verifying the absence or diversion of nuclear materials in non-nuclear 
weapons states.
    The universal acceptance of the Additional Protocol will help 
improve shortfalls in the IAEA's standing Safeguard Agreements. These 
deficiencies were highlighted by the discovery of Iraq's nuclear 
weapons program after the first Gulf war, as well as by recent 
revelations of illicit nuclear activities by states under existing 
safeguards, such as Iran and Libya. The Protocol's declaration 
requirements and access provisions will make it harder for states to 
conceal such illicit activities. Not only must more nuclear-fuel-cycle-
related activities be declared, but the IAEA will also have intrusive 
rights in non-nuclear weapons states to investigate inconsistencies and 
suspicious activities.
    During the negotiations of the Model Protocol, many NPT States 
Parties pushed to water down provisions of the document, arguing that 
the intrusiveness of the Protocol's measures and the costs to industry 
would be too great. This, they argued, would place them at a commercial 
disadvantage with respect to the United States. To defuse this 
argument, the United States pledged to accept the Protocol in its 
entirety, even though the United States is an acknowledged nuclear 
weapons state. Our only changes were the addition of a national 
security exclusion and managed access provision, both of which are 
necessary to protect information of direct national security 
significance. As a recognized nuclear weapons state, these changes are 
both necessary and logical.

        PROTECTING NATIONAL SECURITY EQUITIES UNDER THE PROTOCOL

    The Administration fully recognizes that adopting an instrument 
designed to detect the diversion of nuclear material in non-nuclear 
weapons states is not without risk. The potential intrusiveness of the 
Additional Protocol both in terms of declaring activities and allowing 
access by inspectors is significant. However, we are confident that 
liberal use of the protections afforded the United States by way of the 
national security exclusion and the use of managed access to protect 
sensitive information and activities can mitigate this risk. We believe 
that these measures and others will form an integrated framework to 
protect our equities. The interdependent nature of these measures 
requires that all of them be employed in order to effectively manage 
the risks.
    The United States will make full and repeated use of these 
provisions in order to protect information, locations, and activities 
of direct national security significance. Decisions regarding the use 
of these provisions are a unilateral prerogative of the United States; 
they are not subject to interpretation by, or justification to, any 
other party, including the IAEA. As this is an area of particular 
importance for the Department of Defense, I will speak to it at some 
length.

National Security Exclusion
    The national security exclusion is a critical protection for the 
United States. Under this provision, the United States can exclude 
information and activities from declarations and deny access to IAEA 
inspectors anytime, anyplace. In the declaration process, the national 
security exclusion will be used to exclude locations, activities, and 
information of direct national security interest.
    The United States, unlike non-nuclear weapons states, has and will 
continue to have undeclared nuclear material and activities outside the 
scope of the Additional Protocol. Certain activities that occur at 
locations that are part of the United States civil nuclear program may 
also be excluded from the declaration and access provisions of the 
Additional Protocol in accordance with the terms of the national 
security exclusion.
    Since the United States will have undeclared nuclear activities, 
IAEA activities directed toward the detection of these activities in 
the United States are not considered necessary to enhance 
nonproliferation, or to serve the purpose of the Additional Protocol. 
Rather, the United States expects the IAEA to seek access in the U.S. 
for the purpose of increasing the effectiveness of IAEA safeguards at 
facilities in non-nuclear weapons states, and enhancing the capability 
of the IAEA to detect undeclared nuclear material and illicit 
activities in such states.
    As a general rule, declarations will not be made for any sites, 
facilities, or locations that are owned or operated by the Department 
of Defense, or for other locations that have sensitive Defense 
Department equities associated with them. The most likely exception may 
be the Department of Energy sites to which we currently allow limited 
IAEA access in fulfillment of our existing Voluntary Offer. Adoption of 
the Additional Protocol will in no way expand IAEA access or rights at 
Department of Energy locations associated with sensitive Defense 
Department equities.
    The United States, as a nuclear weapons state, has different 
prerogatives than non-weapon states, and will, as Ambassador Brill has 
already made clear in writing to the IAEA, make ``full and repeated 
use'' of the national security exclusion and managed access to protect 
those prerogatives.

Managed Access
    The concept of managed access provides an additional method to 
protect sensitive information and activities at all locations. These 
measures range from shrouding and closing doors, to tuning off 
computers and other equipment to prevent IAEA inspectors from coming 
into contact with sensitive information. As with the national security 
exclusion, managed access measures will be applied liberally to ensure 
sensitive information is protected.
    Of course, it is important to note that before and during 
inspections, any agency with a national security equity may either 
declare a national security exclusion or employ managed access 
procedures, even if it is not the lead agency. Article 1 of the 
Additional Protocol allows the U.S. to invoke managed access to ensure 
that national security information is protected. The specific measures 
taken will be site-specific.
    In addition to this provision, Article 7 permits the United States 
to invoke managed access to prevent the dissemination of proliferation-
sensitive information, to meet safety or physical protection 
requirements, or to protect proprietary or commercially sensitive 
information.
    Moreover, inspectors will be escorted at all times when at, or in 
proximity of; inspected locations. For those possible few activities 
with a Defense Department equity that DOD allows to be declared, the 
Department will have experts on the escort team, in addition to the 
Defense Threat Reduction Agency (DTRA) personnel who will take part in 
the inspection.
    Environmental sampling is performed by the IAEA to detect the 
presence of undeclared nuclear activities. As a nuclear weapon state, 
the United States is allowed (and expected) to have undeclared nuclear 
activities. The United States does not foresee circumstances in which 
the IAEA would propose to conduct wide area environmental sampling in 
the United States, and believes that IAEA requests for location-
specific environmental sampling in the United States would be unlikely.
    While such sampling would have little utility for Additional 
Protocol purposes in the United States, it could reveal information of 
direct national security significance, including the presence of 
sensitive undeclared activities. Therefore, in accordance with the 
national security exclusion, the United States will not allow location-
specific environmental sampling with respect to such locations, 
information, and activities.

Inspector Vetting
    In addition to the national security exclusion and managed access 
measures, the United States will continue to review the IAEA list of 
inspectors nominated for inspection duty in the United States. This is 
a process that begins when the IAEA identifies staff for designation as 
inspectors and provides their names to the IAEA Board of Governors for 
approval. This list, which is normally submitted to IAEA Member States 
approximately one month before the Board of Governors meeting, is 
forwarded to the United States IAEA Steering Committee for interagency 
review.
    Within the executive branch, concerned agencies will then conduct 
separate checks. Any inspector suspected of being a national security 
risk will be flagged and the IAEA will be notified that the person 
should not be designated as an inspector to the United States. In fact, 
the U.S. has already informed the IAEA that no individuals from state 
sponsors of terrorism would be allowed to serve as inspectors in the 
United States. Within the last decade, the U.S. has rejected 
approximately 10 proposed inspectors. We will continue to employ these 
vetting procedures to ensure sensitive information and activities are 
protected.

Vulnerability Assessments
    In order to gauge risk at specific locations, vulnerability 
assessments will be conducted at potentially declarable sites that have 
national security equities. Once our implementation guidance has been 
clarified and implementing legislation passed, we will revisit and 
update assessments that have been previously conducted. We are also 
reviewing what other sites may require vulnerability assessments. These 
assessments will vary based on the nature and location, among other 
things, of the site or activity. Some will be fairly simple, while 
others will require a more detailed examination. The key point is that 
the United States will complete all necessary assessments and implement 
all required security procedures prior to submitting our first 
Additional Protocol declaration as due to the IAEA.
    Of course, the Nuclear Regulatory Commission, the Department of 
Energy, and the Department of Commerce are responsible for conducting 
vulnerability assessments for locations under their jurisdiction. 
Nevertheless, the Defense Department will work closely with these 
agencies on those locations with Defense equities to ensure these 
assessments are thorough and timely.
    Finally, it is important to note that the United States may remove 
locations from our Additional Protocol declaration at any time for 
national security reasons, and will do so as necessary. And, because of 
the constantly changing security environment, the vulnerability of all 
declared locations will be reviewed regularly. In short, vulnerability 
assessments and security planning will continue to play an integral 
part in the preparation for making declarations to the IAEA and 
allowing IAEA access to declared locations.

IAEA Protection of Declared Data
    One of the United States' concerns is the protection of declared 
data once it is submitted to the IAEA. Because information submitted to 
the IAEA under the Additional Protocol will be more detailed, there are 
penalties--to include potential exposure to civil and criminal action--
for IAEA officials found to be in breach of their obligations.
    The United States (through its voluntary contributions to the IAEA) 
has provided technical assistance to the IAEA to improve its 
information security in its safeguards information systems. The IAEA 
makes regular reports to the Board of Governors on its progress in 
implementing security improvements in this area.
    The United States' declarations submitted to the IAEA will be based 
on data provided by each agency to the Department of Commerce's 
Additional Protocol Reporting System (APRS). Before the Defense 
Department submits its data into that system, we will develop our own 
procedures and systems to evaluate relevant declaration data, 
individually and aggregated, to mitigate any risks. Further, the 
Defense Department will work closely with other agencies to review 
draft declaration inputs to ensure no Defense Department sensitive or 
classified data is collected in the APRS.
    That said, it is also important that the implementing legislation 
for the United States' Additional Protocol exempt information provided 
by U.S. entities to the United States Government in execution of 
Protocol obligations from disclosure under the Freedom of Information 
Act.

                               CONCLUSION

    In conclusion, the Administration believes that Senate advice and 
consent to ratification of the U.S. Additional Protocol will advance 
the national security interests of the United States. Ratification of 
the Additional Protocol demonstrates the United States' leadership in, 
and commitment to, nonproliferation.
    United States' ratification of the Protocol may also encourage non-
nuclear weapon states to do the same. As a result, universal adoption 
of the Additional Protocol will provide the IAEA an important tool to 
help detect or prevent proliferation of the technology and materiel 
needed for nuclear weapons. At the same time, adequate protections have 
been incorporated into the Protocol signed by the United States to 
allow us to prevent the compromise of sensitive activities and 
information.
    Thank you, Mr. Chairman. I look forward to the Committee's 
questions.

    The Chairman. Well, thank you very much, Secretary Esper, 
for your testimony.
    As all of you observed, the Protocol touches upon the 
responsibilities of many Departments of our Federal Government. 
The witnesses today represent four prominent Departments, 
namely State, Energy, Commerce, and Defense. The Chair would 
recognize, as I started the hearing and received testimony from 
various other agencies, which will be part of the record, that 
there are several more agencies involved. Indeed, if we had 
included at the table today all the agencies that felt they had 
a stake and wanted to testify on behalf of the Protocol, plus a 
good number of very important private groups who likewise share 
the sense of urgency of this, why, our hearing would have been 
more extended. Nevertheless, we have been assured by the 
administration that the four of you are very good 
representatives of the feeling of the President of the United 
States and his administration.
    Let me say, at the outset of these questions, that I have a 
set of questions that I will read, because they have been 
carefully prepared by staff, many of them in consultation 
either with you or your staff. In this forum, for those looking 
at the record and wanting a specific answer, whether it be a 
Senator, on either side of the aisle, or a staff member, or a 
member of the administration, they will be able to easily find 
it.
    My first two questions are for you, Secretary Burk. The 
first is, do the Secretary of State and his Under Secretary for 
International Security and Arms Control, John R. Bolton, fully 
support U.S. Senate ratification of the Additional Protocol, 
consistent with President Bush's letter of transmittal, which 
states that universal adoption of the Protocol is, ``a central 
goal of my nuclear non-proliferation policy''?
    Ms. Burk. Thank you, Mr. Chairman.
    I actually met with Secretary Powell last night in 
preparation for this hearing, and he made it clear that I 
should reaffirm the support he and the Department--his full 
support for the administration on this issue. And I have 
addressed Under Secretary Bolton's position in my testimony 
specifically. So I hope that answers the question.
    The Chairman. And so the answer is yes.
    [Witness nods her head, affirmatively.]
    The Chairman. Now, the second question, Will the Secretary 
of State and his Under Secretary for International Security and 
Arms Control, John R. Bolton, agree to support the committee's 
resolution of ratification, once agreed with the 
administration, without changes?
    Ms. Burk. My understanding is yes.
    The Chairman. Thank you very much for that testimony.
    Ambassador Brooks, Secretary Lichtenbaum, and Secretary 
Esper, given that the first United States declaration must 
occur, under Article 3 of the Protocol, within 180 days of its 
entry into force, and assuming Senate ratification of the 
Protocol within the next 2 months and favorable congressional 
consideration of its implementing legislation, will the panel 
now comment on whether they believe all such preparations will 
have occurred so as to enable the United States to meet its 
obligations under the Protocol?
    Ambassador Brooks, do you have a response?
    Ambassador Brooks. The answer, Mr. Chairman, is that we 
will not allow it to enter into force until we are fully 
prepared to meet our obligations, and I see no reason why we 
won't be fully prepared. So, yes, we'll meet our obligations, 
but we control the timing of actual entry into force, and we 
would not allow it to enter into force until we were prepared 
to meet our obligations under that.
    The Chairman. I thank you.
    Secretary Lichtenbaum, do you have a response?
    Mr. Lichtenbaum. I would concur with that assessment, and 
note, as stated in the written testimony submitted, that in 
order to ensure that proper protections are established and 
that industry has adequate time to understand and implement its 
reporting obligations, entry-into-force will not occur until 
Commerce publishes its regulations in final form and 
vulnerability assessments at declared locations of direct 
national security significance are completed.
    The Chairman. I thank you.
    Secretary Esper.
    Mr. Esper. Yes, sir, that is correct. As I also said in my 
opening remarks, we will ensure that all security procedures 
and vulnerability assessments are done prior to entry into 
force.
    The Chairman. I thank you for your response.
    Now, this question is directed to Ambassador Brooks and 
Secretaries Burk and Esper. As you have noted, IAEA inspections 
now occur in the United States for highly enriched uranium and 
plutonium declared excess to United States defense needs. 
Secretary Burk, your statement notes that over 250 facilities 
are now eligible in the United States for inspection under our 
Voluntary Offer. Do any of you expect, as a result of United 
States ratification and implementation of the Additional 
Protocol, the list of eligible sites to grow? And, if so, by 
how much? And, furthermore, will any provision of the 
Additional Protocol harm United States stockpile flexibility or 
our ability to ensure a safe, secure, and reliable nuclear 
deterrent?
    Ambassador Brooks.
    Ambassador Brooks. The list of sites will obviously grow. 
We don't know by how much. An order or magnitude, for this 
Department, is about a hundred. I want to distinguish between 
lists of sites and presence of IAEA inspectors. I anticipate 
the International Atomic Energy Agency will be very sparing in 
seeking to exercise its rights, since, after all, it already 
knows we're a nuclear weapon state.
    With regard to your question about whether there will be 
any harm to U.S. security, the answer is absolutely not.
    The Chairman. Secretary Burk.
    Ms. Burk. I agree with Ambassador Brooks completely, and I 
also would note that the IAEA had not been conducting 
safeguards inspections in the U.S. since 1993 until we asked 
them to come in to inspect. So I would agree with his comment 
on the frequency, as well.
    The Chairman. Thank you.
    Secretary Esper.
    Mr. Esper. Thank you, Mr. Chairman. As I said in my opening 
remarks, we do not envision declaring any DOD-owned or operated 
sites, either former or current. That said, there may be some 
additions based on sites that other agencies might declare that 
have DOD equities if we should decide then to allow them to be 
declared. That would, of course, then require managed access 
procedures to be implemented. In both cases--or I should say, 
in all cases--with liberal use and repeated use of either the 
national security exclusion or the managed access procedures, 
we are confident that we can protect national security 
equities. As such, we don't foresee any harm to U.S. security, 
provided we employ those techniques appropriately.
    The Chairman. Thank you.
    Now, one further question. As the United States nuclear 
stockpile ages and changes over the course of the next several 
decades, do we anticipate that more materials will be declared 
excess to United States defense needs?
    Ambassador Brooks.
    Ambassador Brooks. It's reasonable to assume that, but I 
want to be very careful not to prejudge decisions that the 
President hasn't made. As you know, the President, in the 
Treaty of Moscow, has implemented a radical reduction in 
operationally deployed weapons. And the two Departments 
continue to assess, continually, as part of a normal process, 
our needs. So it's certainly reasonable to assume that there'll 
be some additional materials, but I wouldn't speculate on 
amounts or timing.
    I would say that it does not appear to me that any 
plausible future declarations would alter the subject that we 
are discussing today. I mean, excess nuclear materials in the 
future will go where excess nuclear materials now go. So I 
don't believe that any hypothetical future declarations of 
excess material will alter the wisdom of the course we're 
recommending to you. But, of course, if it does, we have this 
freedom, under the national security exclusion, to deal with 
anything.
    The Chairman. Secretary Burk, do you have a further comment 
on that question?
    Ms. Burk. I would not have any further comment on that.
    The Chairman. Secretary Esper.
    Mr. Esper. No, sir.
    The Chairman. Well, thank you very much.
    Let me ask this question. It arises from the testimony. I 
made a note, as you were testifying, Secretary Burk, discussing 
early IAEA inspections in Iraq. And you mentioned: Due to the 
lack of authority to be more intrusive, it may be that 
inspectors in Iraq have felt that they do not have permission 
to go to additional buildings on one site that you mentioned. 
Can you amplify this more?
    Obviously, the inspection by IAEA in Iraq is a topical 
subject of other committees' hearings, as well as our own. Yet 
clearly one of the reasons for the urgency of this Protocol and 
its consideration is because the American public, and the rest 
of the world, are deeply concerned about the effectiveness of 
these international inspections. The Libya situation offers 
another avenue for taking a look at what IAEA does. Likewise, 
Iran, as we've all mentioned today. There may be others to 
come. The agency has been out of North Korea for a few months; 
at some point, it may return.
    If you can, would you flesh out, even more, what this means 
and what the reasons are for why the United States believes 
that a more comprehensive inspection authority is required? Why 
we are likely to be safer, and why would the rest of the world 
be safer, if that authority is, in fact, a part of this entire 
picture?
    Ms. Burk. I would be happy to try to amplify it, and I 
could always provide more information, because there are--I 
have people that are far more expert than I am. But my 
understanding, the safeguards, originally and traditionally, 
were used and applied to nuclear-material facilities that were 
declared by a state. And so the IAEA, in carrying out its 
safeguards function, would visit those facilities that a state 
had identified for it to visit. What we discovered, much to our 
horror following the first gulf war, was that there were 
activities right there onsite that were not declared. The IAEA 
did not have the right to go and visit those buildings. And so 
the members realized--the U.S., in particular, leading the 
charge--that we needed to strengthen their authorities and 
their ability to search out these other facilities to deal with 
this problem.
    I'd like to offer a more detailed response on the history 
of this that would be far more technically accurate, if you'd 
like.
    [At the time of publication the response had not been 
received.]
    But I think we've tried to close a gap, which we, again, as 
you've mentioned, have seen reflected in the Iran case, in the 
Libyan case, and so forth. And I would just offer an 
observation that these developments, I think, will give far 
more impetus to the Additional Protocol, the Model Protocol, 
among the member states as states begin to appreciate that 
these are not theoretical problems we're trying to solve, these 
are real problems, and that we may see greater adherence to the 
treaty.
    So I think we're going from simply declared facilities to 
now giving them the authority to ask questions about facilities 
that have not been so declared, and hopefully close that gap. 
It'll never be perfect, it'll never be watertight, but we 
believe it will give them a far greater reach that will enable 
them, we think, to find some of the things that we're finding 
out now, at a much earlier stage so we can deal with them 
before they're more advanced.
    The Chairman. I think that you've testified quite 
accurately, just as a historical matter, that after the first 
desert war with Iraq we discovered--despite the fact that IAEA 
had the right to take a look at certain facilities in Iraq--we 
were surprised that there were a lot more. And, in fact, there 
was not authority. And so, at that time, they were not 
discovered. So there's a certain sense of shock that all of 
this has been going on unknown to us. Of course, since there 
was a fairly well-developing nuclear program, it was of special 
import.
    Let me just say, on a personal note, that Ambassador Brooks 
first came into my life because President Reagan named a 
bipartisan Senate Arms Control Observer Group sometime in the 
circa 1985-86 period, when there were new opportunities with 
the former Soviet Union, including a Gorbachev invitation that 
looked as if perhaps we were going to have intensive arms-
control talks. I remember seeing Ambassador Brooks in his 
office on the second floor of this nondescript building in 
Geneva, where he held forth for quite a period of time in one 
capacity or another, and was instructive to Senators, and a 
mentor, as we got into the weeds of these very, very tough 
negotiations that did not happen right away. It went on and on, 
like the brook, for months and for years.
    I have commented, apropos of your testimony, Secretary 
Burk, to those who are impatient as to why arms inspectors, if 
they have access to sites, don't simply fall over the materials 
and what have you. In almost each instance in which I 
personally have been involved in--in Russia, for instance, in 
recent years, on the sites, particularly of chemical and 
biological weapons situations, if I had not had a very friendly 
Russian on the left hand and the right hand, both pointing out 
to me the where and the what and the history and what was done 
and buried and what is still alive and so forth, in most cases 
I would have been none the wiser. This is, to say the least, 
even for somebody in the IAEA who makes a profession of this, 
an extremely artful experience to know what you're looking at.
    Now, to be denied sites, to have buildings out there that 
you don't even have a chance to take a look at, even if you did 
not have cooperative witnesses on the right and left hand, is 
really a speculative business.
    And so, obviously, as I understand it--it's in layman's 
language--we're talking today about how the world, not just the 
United States--the United States is actually offering an 
example of how to be forthcoming--but how the world finds out, 
with situations where countries are declaring, ``We don't have 
it. We've never seen it,'' or says, ``We have a very limited 
program, but that's all,'' and defies the rest of the world to 
find the rest. Now, even this protocol, at its best, is not 
going to satisfy all of our curiosity, but it is really an 
international attempt to try to get to the heart not only of 
what is there, but, as you pointed out in your testimony, of 
illicit trade, the movement of whatever, which might be a 
substance for the development of a weapon or the machinery or 
the mechanics, even the ideas that are involved. It's an 
extremely important point, in terms of our national security, 
not only in the war against terrorism, but also for the future 
of safety of our country.
    This is not an anecdotal situation; you're offering a 
historical one--but try to amplify why, at least in my own 
judgment, this is probably very important.
    Ambassador Brooks, do you have any further comment about 
this general area?
    Ambassador Brooks. As is often the case, Mr. Chairman, you 
make our case better and more eloquently than we, ourselves.
    The Chairman. Untrue, but you're very generous.
    Let me just ask this, for the benefit of a layperson 
listening to this and hearing all of you offer, as you should, 
important reasons why United States security would not be 
compromised by the Protocol, or United States business would 
not be disadvantaged in competition with others, as we are all 
involved in international trade. From the standpoint of persons 
from another country listening to this testimony, what would 
you say to a question with regard to its neutrality, in terms 
of their competitive efforts?
    If, for example, you were a businessman or you were head of 
the Department of Commerce of another state, and so forth, what 
is the lay of the land here that offers a sense, to other 
nations, of fairness and of equity, as well as--obviously, this 
is the reason we all get involved in this--the safety of the 
country, the security of the country? That's enhanced by 
international cooperation--188 nations, as I mentioned, 
involved in the first go, and hopefully the same number, or 
more, involved in the second. But is this fair? And if you're 
listening, as I say, from another vantage point, other than the 
United States, do you have confidence in the fairness of it?
    Secretary Lichtenbaum, do you have a thought about that, 
from the standpoint of the Commerce Department? Others of you 
may have some thoughts.
    Mr. Lichtenbaum. Let me offer my thought, and then perhaps 
others would care to offer theirs, as they would have had 
direct experience in the negotiating process with other 
countries.
    My reaction is that that is a very important question for 
us to ask, but, indeed, that that is an important part of the 
reason why we are accepting these obligations, in order to show 
to other countries that we are willing to impose the same 
burden on our industry as will be imposed on their industry. In 
particular, the rights that we have under this treaty to 
minimize the burden and protect confidential information for 
industry are rights that are available to other countries, so 
it's not that we have a right to minimize the burden or protect 
confidential information that they do not have.
    The Chairman. Well, that's a very important point, that 
even as you are assuring United States Senators, the United 
States public, that these are not excessive burdens on us, if 
others were offering testimony, as they will need to, in their 
legislatures, they can make these assurances to their publics.
    Mr. Lichtenbaum. Exactly right.
    The Chairman. Well, it's an important issue, because 
obviously our focus today is to provide assurances to all of 
us.
    Mr. Lichtenbaum. Right.
    The Chairman. At the same time, if this is to be effective, 
and our leadership with regard to the other 187 countries is to 
be effective, they must understand the fairness to all of them, 
too. In a sense of evenhandedness, I wanted to add that aspect 
to this, because I suspect that this hearing, although it deals 
with very technical matters, will be followed by a good number 
of other embassies and publics of other countries, who will be 
deeply interested in our discussion and how we look at it.
    As all of you have mentioned, one difference with the 
United States is that, from the beginning of this discussion, 
we were a declared nuclear power. We, in fact, demonstrated 
that in the second world war. So there is not a sense that 
somehow, in a covert way, this country is beginning to develop 
weapons of mass destruction. It has been very clear that we 
have them. We've been leaders in this. A great deal of our 
authority has come from both the fact that we had these weapons 
and the fact that we are restrained in our advocacy of 
controls. And I think that's important, too. This is not a 
situation where all of the countries start at the same point, 
namely a half a century of development of these weapons.
    Now, at this point in history, many nations, although not 
all, would like to see the number of countries that are 
developing weapons decline in number. That's one reason why we 
welcome the Libyan declarations in the same way we have 
welcomed declarations of other countries, who thought about it, 
may have proceeded through certain stages, but ultimately 
decided that this was not in their security interest, certainly 
not in the interest of their international relations with 
others. IAEA is involved in this business of trying to 
constrain the development of countries that have declared that 
they really don't want to go there. A part of what we're 
looking at here is not a situation of everybody at the same 
point of development.
    Having said that, you know, a question will be raised, 
obviously, by those who have weapons: ``Are there the same 
security safeguards for us?'' For instance, in the Russian 
Duma, if their foreign relations committee was to have a 
deliberation like this, would the administration witnesses be 
making the same assurances to Duma members that you have been 
making to the Senate today?
    Ambassador Brooks.
    Ambassador Brooks. Well, actually, because the Russian 
Federation, for whatever reason, chose to adopt a much narrower 
protocol, they wouldn't have to. The reason we're making these 
assurances goes back to the point that several of us has made 
about United States leadership. We chose to adopt the entire 
Additional Protocol, with only the addition of a national 
security exemption. It's not a national-inconvenience 
exemption, it's not a national-burden-on-somebody-who-has-to-
fill-out-a-form exemption; it's a national security exemption. 
So we have chosen to accept the burdens that we ask other 
states to accept, and we've done that for the reason I alluded 
to in my testimony, that, as a practical matter, we are, in 
these areas, the preeminent nation in the world, and so our 
example matters more than other people's examples.
    So I think that if my colleagues in Russia were testifying, 
they would say that they had adequately protected national 
security. But I think, actually, they went much farther than 
would have been appropriate for us, as a global leader.
    The Chairman. Where would the Chinese be on this same 
scale? What kind of assurances do they have?
    Ambassador Brooks. Their protocol is also far more 
circumscribed than ours, and also includes, as I recall, the 
national security exemption.
    So I don't believe any of the five nuclear weapon states 
under the Non-Proliferation Treaty is approaching this question 
with any disregard for security. The difference is much in our 
willingness to accept burdens, inconveniences, extra work in 
order to demonstrate that that's not incompatible with the 
position of commercial leadership; and, thus, take not so much 
the other nuclear weapon states, but the more advanced non-
nuclear weapon states. And, we believe, although one can never 
prove these things, that our willingness to do that has already 
had an impact on some states that have chosen to adopt 
Additional Protocols. And we believe, with the further impetus 
that Senate advice and consent will give us, that we will also 
be able to garner in some more folks.
    The Chairman. So, as you've all testified, essentially, 
even though others who are nuclear powers may not have gone so 
far, we have done so deliberately. We are attempting to take a 
leadership situation. This, as I understand it, is the 
President's position, and it is why he feels strongly that this 
is important at this particular time, not only in negotiation 
with others, but, as you said, Ambassador Brooks, in setting an 
example, which may lead other nations to have an internal 
debate. It may be a very covert, private debate right now, but 
one in which the intensity of our feeling about this is 
exemplified by the example that we are prepared to set, despite 
the real political considerations of others who might also go 
that far, who may be stimulated to do more, once again, by our 
example. Is that a fair summation of the situation?
    Ambassador Brooks. Yes, sir.
    The Chairman. Let me just ask whether there are any other 
additional comments any of you would like to make, beyond your 
statements or your responses to questions that I've raised this 
morning.
    Well, if not, I thank you----
    Yes?
    Ambassador Brooks. Yes, sir. You commented earlier on the 
absence of your colleagues, and I just wanted to say, on behalf 
of the administration, how grateful we are to you. I know that 
these other demands are extremely important, and the 
administration and all of us here are grateful to your 
recognizing the importance of this and continuing to hold this 
hearing. On behalf of the administration, I want to thank you, 
sir.
    The Chairman. Well, thank you very much, Ambassador.
    But let me just say, I, reciprocally, would like to say how 
much I appreciate the administration's emphasis in this area. I 
think it already is bringing about some results in the world 
that are extremely important. And topically, as we note the 
materials coming into Oak Ridge, Tennessee, yesterday from 
Libya, for example, this is not an abstract question. Very 
important.
    Thank you for coming. Thank you for your testimony. We will 
share it with our colleagues.
    And the hearing is adjourned.
    [Whereupon, at 11 a.m., the committee adjourned, to 
reconvene subject to the call of the Chair.]
                              ----------                              


             Additional Statements Submitted for the Record


           Prepared Statement of Hon. Ronald F. Lehman, Ph.D.

    Mr. Chairman, Members of the Foreign Relations Committee:
    I am pleased to provide this statement on the US-IAEA Additional 
Protocol and its strategic context. These are my personal assessments 
and are not necessarily the views of any administration, organization, 
or institution with which I am now or have been associated. Of course, 
my views are heavily influenced by my experiences, many of which I have 
shared with you in the past.
    Let me be very clear. I would urge the Committee to report 
favorably on consent to ratification of the US-IAEA Additional 
Protocol. The Additional Protocol is a valuable enhancement of our 
nuclear nonproliferation tool kit and will promote stronger cooperation 
around the world on nuclear nonproliferation. The Additional Protocol 
does not solve all of our nonproliferation problems, but it will help. 
Like all nonproliferation tools, the Additional Protocol carries with 
it some costs and risks, but in this case they are very manageable. 
Indeed, the process of optimizing the application of the Additional 
Protocol as it applies to others and applies to us will further enhance 
our cooperation with the IAEA, our conduct of other inspections, and 
our own confidence that we can secure sensitive information. The gains 
far outweigh the costs. The details of implementation are important and 
must be considered carefully on their own merits. Still, it would be a 
mistake to let the technical nature of the document mislead us into 
underestimating the strategic importance of the Additional Protocol. 
The Additional Protocol is both a symbol of the need for bolder action 
on nonproliferation and a catalyst for further measures.
    The Additional Protocol is an important milestone on a long journey 
toward removing the threats posed by nuclear proliferation. For the 
last year and a half, I have been involved in a number of studies 
looking at the consequences of the ``Atoms for Peace'' speech delivered 
by President Dwight David Eisenhower on December 8, 1953. Fifty years 
ago, President Eisenhower offered his vision of how to manage the risks 
and opportunities created by nuclear technology. He correctly predicted 
that this technology would spread widely. In retrospect, he may not 
have anticipated that more countries would have had nuclear research or 
power reactors at the turn of the century than there were members of 
the United Nations at the time he spoke. Eisenhower, in that speech, 
called for the creation of an ``international atomic energy agency.'' 
Eisenhower envisioned that, from the beginning, what became the 
International Atomic Energy Agency (IAEA) based in Vienna, Austria, 
would have two missions; namely, to help strengthen international 
security and to promote the peaceful applications of nuclear 
technology. There is an inherent tension between these two missions, 
but synergy as well.
    At the risk of great oversimplification, let me assert that the 
history of the IAEA has been one of bringing nonproliferation from a de 
facto secondary priority to its highest functional priority. This is a 
process still underway and its tools and standards are almost certainly 
well short of what is necessary to deal with some of the potential 
proliferators and proliferation-enabling technologies we face today and 
will face tomorrow. Nevertheless, the IAEA has come a long way. The 
IAEA is not the only nonproliferation tool available to nations, but an 
enhanced IAEA can better complement the broader range of actions 
necessary. We will continue to need a comprehensive nonproliferation 
strategy involving more than the IAEA. In undertaking a more 
comprehensive approach, it is important to recognize that judgments 
made and actions taken multilaterally and unilaterally can be 
strengthened as a consequence of implementation of the Additional 
Protocol.
    Certainly, the IAEA cannot be relied upon alone to prevent 
proliferation. Nevertheless, a strong IAEA is important to the task. In 
its earliest days, governments pressed the IAEA to focus primarily on 
the peaceful applications of nuclear technology in energy, agriculture, 
industry, and medicine. Today, advocates of peaceful applications of 
nuclear technology increasingly understand that they must address 
concerns about nonproliferation and vulnerability to terrorist 
exploitation or attacks. Today, the IAEA has modernized its agenda to 
address these concerns. It needs the tools, however, for the modern age 
in which our prosperity, health, and freedom are dependent upon 
technologies that can be destructive in the wrong hands. The Additional 
Protocol is one of the tools we need to give us greater confidence that 
technologies will be used for beneficial and not malevolent purposes.
    The completion of the Nuclear Non-Proliferation Treaty (NPT) was 
the major step in bringing nonproliferation into balance with the 
facilitation of peaceful applications as an IAEA priority. Over time, 
the NPT has been adhered to by all nations with significant nuclear 
capabilities except three, and even these have relations with the IAEA. 
Still, the NPT took many years to reach the current state of near 
universality. France, China, Brazil, and Cuba, for example, joined very 
late. The problem, then and now, is that one size does not fit all. 
Negotiating provisions that are accepted as fair by all nations does 
not necessarily result in measures that are effective in the prevention 
of proliferation in certain nations. As a result, early safeguards 
provisions erred on the side of restraint. The Additional Protocol is 
designed to help correct this error resulting from too narrow a focus.
    A major manifestation of that restraint was the preoccupation with 
fissile material and declared facilities. The message of the Manhattan 
Project and the comparable Soviet effort was that grand facilities and 
great resources were needed to produce the nuclear material needed for 
weapons. The spread of nuclear knowledge and many technologies related 
to nuclear weapons (computations, precision machine tools, etc.) seemed 
inevitable, so why not concentrate on controlling material that is 
produced in unique, relatively visible facilities. Focusing on declared 
facilities involved with material had the additional advantage of not 
bothering nations at other locations where those nations are engaged in 
sensitive military or commercial activities. The problem with this 
scoping of the problem is that it is incomplete and becoming more 
inadequate every day. The Additional Protocol is the product of 
recognition that circumstances have changed and technologies are 
advancing.
    Not too long ago, I was involved in a study of nuclear verification 
as it related to North Korea. Our effort looked at scenarios under 
which Pyongyang might divert nuclear material out from under the 
watchful eye of IAEA safeguards. Scenarios were identified, but so were 
the fixes. In general, the problem is not diversion in the face of IAEA 
inspections at declared facilities. The real problems were undeclared 
activities, third-party assistance, and breakout from Treaty 
obligations, all dangers for which the IAEA had not been given a 
sufficiently clear mandate. Even intense implementation of the 
Additional Protocol in countries of concern cannot guarantee against 
these possibilities, but the Additional Protocol does give us greater 
ability to discover evidence early and take more unified and decisive 
action to turn things around. The Additional Protocol is not the only 
source of IAEA authority to pursue these concerns, but it will 
strengthen the IAEA's hand in investigating undeclared activities, 
unreported imports or exports, and preparations for breakout.
    Indeed, a strong case can be made that many of the developments 
that are increasing the latent capacity of nations to produce nuclear 
weapons cannot be addressed without tools such as the Additional 
Protocol. I have in mind not only advances in lower cost and easier 
weapons technologies, but also such developments as global talent pools 
and brain drain, international capital flows and great wealth in some 
nations of concern, outsourcing of components and off-shore production, 
gray and black markets in high technology including weapons, agile 
manufacturing, just-in-time inventories, and rogue resources in failing 
states. Business as usual at the IAEA cannot address these problems. 
While it is vital to understand what happened in Iraq over the last 
dozen years, it is even more important to recognize that uncertainty 
about Iraq is part of the predictable pattern of uncertainty that has 
been illustrated in Iran, North Korea, Libya, and earlier in Iraq after 
the Gulf War. In nearly all these vital cases, the problem has been 
that the IAEA could not discover what in fact was there. Also, the IAEA 
has had little leverage on alleged shipments from countries such as 
Pakistan. The Additional Protocol will not make these problems go away, 
but without the Additional Protocol the IAEA will be far less able to 
help in dealing with these challenges.
    As one who has spent much of his life negotiating agreements, I 
remain interested in how the document is crafted, what it means, how it 
will be implemented, and what the consequences will be, even at the 
technical level. One issue that seems technical, nevertheless, fits 
into the broader strategic perspective I wish to present--managed 
access. Managed access is not a new issue. The US Government spent 
years assessing this problem as we negotiated the INF and START 
treaties and the Chemical Weapons Convention. In theory, every facility 
that might be visited under the Additional Protocol is subject to 
challenge inspections under the CWC. Still, one might expect a 
different probability and focus under the Additional Protocol. The 
National Nuclear Security Administration (NNSA) has had to deal with 
the issue of the CWC and rightly has begun a new set of studies and 
field exercises to deal with new possibilities. There are real risks 
and costs that must be managed. At the same time, my own experience 
leads me to believe that we need to be making these preparations in any 
case in support of our own national security. When we did the managed 
access studies for the CWC we discovered counter-intelligence weakness 
that had to be addressed, whether or not we faced managed access 
because of one or another treaty obligations. In addition, we learned 
much about how to conduct inspections in other countries under the 
conditions of managed access.
    Increasingly, as we seek to deal with the dangers associated with 
the spread of dual-use technology and the increasing latency of weapons 
capabilities, we need to develop the professional expertise to address 
threats to security while protecting sensitive information. This is not 
a theoretical problem to be dealt with in paper studies. The problem of 
balancing transparency and security requires the interaction of experts 
with diverse objectives. This means we must bring together in the 
field, at real locations and facilities, production managers, security 
officers, intelligence specialists, and the like. This is another 
reason why the costs and risks of the Additional Protocol, even though 
they must be managed, nevertheless also constitute a benefit. The 
Additional Protocol will help prepare us for the real world of dual-use 
latency that is emerging in a way that better protects both innovation 
and security.
    Most debates concerning the role of the IAEA focus on supply-side 
controls over fissile material. In reality, the primary drivers of 
proliferation are to be found on the demand side, primarily regional 
security calculations and the nature of the regimes in power. The 
Additional Protocol would seem to be of limited importance here because 
it is a supply-side tool. Such a conclusion would be a mistake. In 
fact, the Additional Protocol may help both with efforts to improve 
regional security and to promote policy or political change in the 
regimes of concern.
    On the first point, many nations will make their decisions on their 
security futures, including in some cases the decision to go nuclear, 
based upon their own assessments of risk. A number of countries such as 
Japan place great importance on the implementation of the Additional 
Protocol, universally and regionally. Northeast Asia is a nuclear 
proliferation powder keg with many nuclear capable countries watching 
what other nations are doing. Of greatest concern is North Korea, but 
it is not the only country of concern in the region, especially to 
other nations in the region. Although in my opinion far more than the 
Additional Protocol will be needed to rollback the North Korean nuclear 
program, widespread application of the Additional Protocol is of 
particular value in this region in addressing the demand side as well.
    Likewise, on the matter of changes in the behavior or nature of 
regimes of concern, greater openness such as is associated with 
measures like the Additional Protocol along with any reduction in 
perceived threats may encourage political change even in dictatorships. 
Such was the contribution, however small it might have been, to the end 
of the Cold War regimes. Such soft regime change or reform cannot be 
guaranteed, but it certainly can be encouraged. We will see what 
happens in Libya and Iran, but clearly some political changes have been 
assisted by more intrusive transparency and detailed interactions.
    One significant weaknesses of the NPT has been a lack of clarity in 
the minds of many over what in fact is prohibited. In its crudest form, 
violation of the NPT has been associated with the first nuclear weapons 
detonation detected. In fact, the obligations under the NPT are not to 
acquire nuclear weapons. Programs aimed at acquiring nuclear weapons 
inevitably involve activities that are not concentrated at declared 
facilities with nuclear material, and it is often information about 
these activities that inform threat assessments. Loose standards of 
compliance and verification that fail to take into account these 
activities are doomed to be inadequate. The Additional Protocol 
embodies recognition of the tighter standards that need to be applied 
to nuclear programs in their entirety, especially given the advance of 
nuclear capability around the world. Implementing the Additional 
Protocol may catalyze debate about what is in fact prohibited, but the 
Additional Protocol itself moves the center of gravity well toward the 
more comprehensive perspective on what is prohibited that is shared by 
the US and others.
    The greatest weakness in the current nonproliferation regime is 
clearly uncertain enforcement. It is important to remember that the 
IAEA can encourage compliance, but has limited ability to enforce 
compliance. Its actions, however, can be vital to compliance, either in 
setting the stage for action or, unfortunately, demonstrating that 
action is not likely to be forthcoming. A case in point is North Korea. 
The history of negotiations with North Korea is a painful one to 
review, but perhaps no single event was more of a tipping point than 
the failure of the international community to back the IAEA decisively 
in 1993 when the Director-General sought to conduct a ``special 
inspection.'' The special inspection, consider an extraordinary 
measure, was requested by the IAEA because of discrepancies in North 
Korean declarations whose significance was magnified by other evidence 
of undeclared facilities and activities. Although the deeper reasons 
the international community hedged its support of the IAEA in the 
Agency's demand for ``special inspections'' are fundamentally 
political, the surface rationale was uneasiness in pressing for this 
novel intrusiveness in the face of sovereign resistance. Special 
inspections involved a phase change in thinking about openness for many 
countries that had, invoking the spirit of sovereignty, resisted even 
less intrusive earlier practices. Had the Additional Protocol been in 
force at that time, the IAEA might have received stronger support and 
the international community might have been able to end North Korean 
noncompliance.
    In summary, ratification by the United States and other countries 
of their IAEA Additional Protocols would help reduce, although not 
eliminate, several current weaknesses in the nonproliferation regime. 
It would place higher priority on nonproliferation and clarify for 
nations and the IAEA their nonproliferation mandate. It would help the 
IAEA perform its nonproliferation mission, and help other nations and 
institutions as well. Ratification of the US-IAEA Additional Protocol 
would demonstrate support for a stronger international nonproliferation 
norm deeply in the interest of the United States, but it would also do 
so through an approach that recognizes that not all nations present the 
same problem. In particular, the Additional Protocol process recognizes 
that the problems to be addressed in nuclear weapons states and non-
nuclear weapons states require different treatment in the interest of 
all. Ratification of the Additional Protocol would help us have more 
flexibility to deal with this problem that one size does not fit all. 
Most importantly, it would force recognition that nonproliferation 
action must address undeclared facilities, exports, and breakout even 
more than declared facilities. It would help address important demand 
side issues such as closed regimes or regional threats that concern 
allies like Japan. It would codify tighter standards at a time in which 
a certain enforcement fatigue has set in and a tendency to pronounce 
international norms from on high is followed by business as usual. It 
would remove at least one pretext that some nations have invoked asking 
why they should adhere if even the United States has not. It would 
facilitate IAEA cooperation on a broader range of information and 
sources and would encourage the introduction of more effective 
monitoring and control technologies. And it would strengthen the hands 
of those who would take the steps necessary to enforce international 
nonproliferation obligations.
    Mr. Chairman. This concludes my prepared remarks on the strategic 
aspects of ratification of the US-IAEA Additional Protocol. Please let 
me know if you would like me to address any other questions. Thank you.

                                 ______
                                 

             Prepared Statement of Nuclear Energy Institute

    The Nuclear Energy Institute (NEI) is responsible for developing 
policy for the U.S. nuclear industry. NEI's 270 corporate and other 
members represent a broad spectrum of interests, including every U.S. 
energy company that operates a nuclear power plant. NEI's membership 
also includes nuclear fuel cycle companies, suppliers, engineering and 
consulting firms, national research laboratories, manufacturers of 
radiopharmaceuticals, universities, labor unions and law firms.
    America's 103 nuclear power plants are the safest, most efficient 
and reliable in the world. Nuclear energy is the largest source of 
emission-free electricity generation in the United States. Nuclear 
power plants in 31 states provide electricity for one of every five 
homes and businesses in the nation, and the industry continues to reach 
record levels for efficiency and electricity production. It is 
essential that Congress adopt policies that foster the safe peaceful 
development of this vital part of our nation's and the world's energy 
mix--and fulfill existing federal obligations, such as the commitment 
to US/IAEA Applications of Safeguards.
    My statement for the record addresses three key points:

          1. The Senate should promptly act to ratify the IAEA 
        Protocol.

          2. Congress should take action on the implementation 
        legislation for the Additional Protocol.

          3. Implementation of the protocol on the commercial sector by 
        the Nuclear Regulatory Commission's (NRC) and Commerce 
        Department will not impose a burden.

                     RATIFICATION OF IAEA PROTOCOL

    The U.S. Senate must ratify the Additional Protocol in order to 
place it into affect. This is very important from a policy perspective. 
First, given the important contributions that the peaceful uses of 
nuclear energy makes to society, it is critical for public confidence 
that we have, worldwide, a robust and effective nonproliferation 
regime. Ratification of the ``Additional Protocol'' will contribute 
towards enhancing that worldwide regime. Second, while a number of 
countries have ratified the Additional Protocol a large number have 
not. U.S. leadership in ratifying the Additional Protocol will be 
instrumental in influencing the decisionmaking in some of these 
countries. While we understand that other countries support the 
concepts of the protocol, they don't want to be obligated to the IAEA 
for anything that the U.S. is not obligated to. Therefore, United 
States ratification of the Additional Protocol removes that 
international impediment and should result in additional countries 
ratifying it. The larger the number of countries supporting the 
Additional Protocol the more robust the nonproliferation regime and the 
greater the pressure on other countries to agree to comply with the 
IAEA inspection regime.

       CONGRESS SHOULD TAKE ACTION ON IMPLEMENTATION LEGISLATION

    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 
Congress 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 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.

                       COMMERCIAL INDUSTRY IMPACT

    The nuclear energy industry supports the administration's proposal 
for implementation of the Additional Protocol. NEI on behalf of the 
nuclear industry has provided written comments to the Commerce 
Department on its notice on proposed concept for implementation of the 
Additional Protocol. NEI also has participated in several meetings with 
the Commerce Department and the Nuclear Regulatory Commission (NRC) 
discussing how the Additional Protocol will be implemented. Based on 
these interactions the industry recognizes it will result in additional 
facility reporting and facilities will have the potential for an IAEA 
inspection. NEI does not believe the reporting and potential 
inspections will result in a burden on the nuclear industry. Therefore, 
NEI supports moving forward with the Additional Protocol and the 
legislation. We believe the benefit of the Additional Protocol to seek 
out clandestine nuclear programs in unstable and/or unfriendly 
countries out weight the minor addition reporting and minimal 
inspection potential. In the unlikely event that implementation of the 
Additional Protocol imposed an inappropriate burden on U.S. commercial 
interests, NEI will immediately advise the governmental entities 
responsible for implementing the requirements, and the congressional 
committees responsible for overseeing implementation.

                                SUMMARY

    NEI supports the ratification of the Additional Protocol and the 
passage of the implementation legislation. This position is based on 
the small additional requirements placed on the U.S. nuclear industry 
being out weighted by the benefit to the world of the IAEA having the 
use of the Additional Protocol. The passage of legislation protects 
U.S. national security interests, while strengthening the ability of 
the IAEA to discover illegal nuclear weapons activities.

                                 ______
                                 

          Prepared Statement of Ambassador Norman A. Wulf \1\
---------------------------------------------------------------------------

    \1\ Although serving as a consultant to the Department of State, 
this statement represents his personal views and does not necessarily 
reflect the views of the State Department or any other part of the U.S. 
Government.
---------------------------------------------------------------------------
    I thank the Committee for the opportunity to submit this statement 
for the record. I was active in International Atomic Energy Agency 
(IAEA) matters for some twenty years before retiring from the State 
Department in the fall of 2002. During that period, one of my duties 
was to lead an interagency delegation first to multilateral 
negotiations that elaborated a Model Protocol Additional to Agreements 
between States and the IAEA for the Application of Safeguards (Model 
Protocol) and subsequently in bilateral negotiations with the IAEA that 
led to the Protocol that is before this Committee (Additional 
Protocol). It is identical to the Model Protocol, except for the 
provisions in the first article dealing with the national security 
exclusion and with managed access for national security.

                               BACKGROUND

    For the vast majority of states, IAEA safeguards flow from the 
obligation they assumed by becoming a party to the Treaty on the 
Nonproliferation of Nuclear Weapons (NPT). Article III of the NPT 
states:

        Each non-nuclear-weapon State Party to the Treaty undertakes to 
        accept safeguards . . . for the exclusive purpose of 
        verification of the fulfillment of its obligations assumed 
        under this Treaty with a view to preventing diversion of 
        nuclear energy from peaceful uses to nuclear weapons . . .

    Prior to 1991, the Member States of the IAEA expected IAEA 
inspectors to rely on a narrow interpretation of this clause, i.e., 
non-diversion of declared materials. In simplistic terms, this meant 
the Agency did an annual inventory of nuclear materials that the State 
had declared and then used seals, surveillance cameras and some 
additional measurements to ensure that the nuclear material remained at 
the site until the next annual inventory. The inadequacies of this 
limited approach were brought home dramatically after the first Gulf 
War. IAEA inspectors had been going to an Iraqi facility for some years 
to check on declared materials in one building while the Iraqis were 
engaging in clandestine enrichment activities in a nearby building.
    Spurred by this incident and prodded by its Member States, the IAEA 
systematically examined what it could do to ensure that the provisions 
of NPT Article III were being met in a broader sense, i.e., that States 
were not cheating on their obligations not to manufacture or acquire 
nuclear weapons through the use of covert or undeclared nuclear 
materials or activities. The Agency reviewed first the authority 
provided in existing comprehensive safeguards agreements. This led the 
Agency to conclude that it had the authority to take environmental 
samples at declared facilities and to consider third party information. 
The Agency also determined that it could require the provision of 
design information before nuclear facilities were constructed. 
Potentially of most significance was the determination that existing 
safeguards agreements provided the authority for the conduct of special 
inspections. The utility of special inspections was reduced when the 
IAEA Board of Governors reaffirmed its availability but expressed the 
view that special inspections should be utilized only in exceptional 
circumstances.
    While the Agency and its Member States agreed that these existing 
authorities were beneficial, they were inadequate by themselves to 
allow the Agency to provide a meaningful assurance about the lack of 
undeclared nuclear activities and materials. The Agency Secretariat, 
following several years of drafting, circulated a draft of the 
additional authorities it believed were needed. This was followed by 
the formation in June of 1996 of a committee, open to all member 
states, which used the Secretariat draft as a basis for negotiating new 
authorities to be contained in a model protocol.

                   NEGOTIATION OF THE MODEL PROTOCOL

    The Committee met repeatedly over the course of a year with around 
60 countries participating in the negotiations. One of the first 
decisions was to follow the precedent established for comprehensive 
safeguards agreements. Rather than negotiating the final text of a 
multilateral agreement, the committee decided to agree upon a model and 
then have the individual states negotiate their own agreement with the 
Agency based on that model. It was understood that non nuclear weapon 
states under the NPT would have to accept all the provisions contained 
in the Model Protocol whereas nuclear weapon states and non-parties to 
the NPT would have greater flexibility. Once an agreement was 
negotiated between a State and the IAEA, the agreement would have to be 
approved by the IAEA Board of Governors. The negotiating committee also 
decided that what was being negotiated would not replace existing 
safeguards agreements but rather would be a protocol that supplemented 
them.
    From the start of the negotiations, it was clear that the major 
opposition to strong provisions in the Protocol was coming from such 
countries as Germany, Japan, Canada, Belgium and Spain. Their 
opposition led other countries with nuclear programs to join their 
efforts to oppose or weaken the Secretariat's draft proposals. These 
States argued that the U.S. would have little credibility in seeking 
stronger provisions if they were not applicable in the United States. 
They argued that the U.S. should follow the precedent established in 
1968 when President Johnson agreed that the U.S. would accept the same 
safeguards, with a national security exclusion, as non nuclear weapon 
states. They were also concerned that their nuclear industries would be 
placed at a competitive disadvantage and that they would have 
difficulties of persuading their legislative bodies to support an 
agreement from which the United States would be exempt. Faced with the 
prospect of no agreement or one that was very weak, President Clinton, 
following interagency consultations, committed the United States to 
accept all the provisions of whatever Protocol emerged subject to an 
exclusion for locations and activities of direct national security 
significance. Also influencing the decision was an understanding that 
our ability to persuade others to accept the Protocol would be 
significantly enhanced if the United States itself had accepted it. 
Without this commitment, there would not have been as strong a 
Protocol; indeed, there might not have been any protocol at all.
    This commitment broke the logjam and the negotiating committee 
began making rapid progress. Throughout the negotiation, the delegation 
sought to strike a balance between the need for the IAEA to have 
strengthened capability against the need to protect U.S. security and 
commercial interests. Once the negotiations concluded, the Model was 
presented to the Board of Governors in May of 1997 and it was approved 
for use as the basis for bilateral negotiations with individual states.

                        DECLARATIONS AND ACCESS

    Under pre-1991 safeguards, non-nuclear weapon states were required 
to declare all source or special fissionable materials within their 
jurisdiction and the IAEA then sought to prevent diversion of this 
declared material by applying safeguards to it. The Protocol focus is 
broader than nuclear material. It covers materials before traditional 
safeguards would apply and it follows materials after safeguards have 
been removed. For example, Protocol parties must declare such things as 
uranium mines and the treatment of waste products from nuclear 
reprocessing. Rather than a focus limited to the actual facility where 
nuclear material may be stored, utilized or treated, the Protocol 
covers components that could be used in such facilities. Thus, Protocol 
parties are required to declare such things as factories capable of 
manufacturing important nuclear components. In addition, they are 
required to report imports or exports of such components.
    While detailed accountancy and frequent inspections are necessary 
when dealing with actual nuclear material or completed nuclear 
facilities, less is required when dealing with uranium ore or 
components of nuclear facilities. The Protocol recognizes this 
difference by providing the Agency with a right of complementary 
access, rather than traditional safeguards inspections. Complementary 
access is designed to be, and has been used as, a routine Agency 
activity but not one that is used to systematically verify each and 
every aspect of the declaration. Rather than routinely visiting every 
location declared, the Protocol says that the Agency should do so on a 
selective basis or when there is an inconsistency in the information 
available to it or a question about that information. And, when it 
makes the visit to that declared location, the Protocol specifies the 
activities that the Agency may conduct.
    To deal with the situation where a proliferator seeks to hide its 
activities at or near a declared nuclear complex, as was the case in 
Iraq, inspectors can seek access to buildings at such sites with only 
two hours notice. If the Agency has information that leads it to 
conclude something has not been declared that should have been, it can 
conduct complementary access at undeclared locations but the activities 
that it can perform at that location are circumscribed.

                       EVALUATION OF THE PROTOCOL

    The Protocol will significantly strengthen the Agency's ability to 
detect undeclared nuclear activities and materials. As such, it should 
deter some countries that might be tempted to proliferate while 
increasing the risk that if they proliferate they will be caught. The 
declaration required by the Protocol will give the Agency a much more 
comprehensive understanding of a Party's capability to support an 
undeclared nuclear program. The Agency has greater rights to ask 
questions and seek access. This is the most important contribution that 
the Protocol makes to IAEA arsenal. Should the State concerned refuse 
to answer the questions or to provide the requested access, the Board 
of Governors has the right to consider that refusal in determining 
whether to bring the matter to the attention of the UN Security 
Council. Moreover, many violations of the Protocol would occur at a 
much earlier stage in the nuclear development process than a violation 
of a comprehensive safeguards agreement. Thus, the international 
community could have more time to prevent the violator from acquiring 
nuclear weapons.
    With respect to the impact of the Protocol in the United States, it 
must be emphasized that the primary purpose of the Protocol is to 
determine whether a Party has undeclared nuclear activities. Everyone 
knows that the United States is a nuclear weapon state and will not 
provide information or access to aspects of its nuclear weapon program. 
Moreover, the national security exclusion contained in the Additional 
Protocol clearly means that the United States will have undeclared 
nuclear activities. Since the IAEA already knows that the United States 
has undeclared nuclear activities, it is reasonable to assume that the 
IAEA will not spend much, if any, of its scarce resources conducting 
complementary access in the United States.
    The IAEA will review the information we provide in our declaration 
primarily from the perspective of determining whether it is helpful in 
determining whether a non nuclear weapon state has an undeclared 
nuclear program. Of most relevance to that objective would be the 
information that is provided regarding exports of nuclear related 
equipment and cooperative nuclear activities. Nevertheless, prudence 
dictates that steps to meet all the Protocol obligations, including 
implementing legislation, must be taken to deal with the possibility 
that the Agency subsequently decides to exercise its right to conduct 
complementary access.
    Regarding risks to U.S. national interests that might result from 
entry into force of the Additional Protocol, my view is that the risks 
presented are modest. The fact that the IAEA has little incentive to 
exercise its rights in the U.S. reduces these risks further. Obviously, 
all risk cannot be eliminated. But when those modest risks are balanced 
against the enhancement of our national security from the application 
of the Protocol elsewhere, it is clear the gains far outweigh them.
    To ensure that these national security gains are maximized, the 
U.S. will need to exercise caution about the precedents it creates. As 
indicated, our Protocol is identical to the Model Protocol except for 
the national security exclusion and the managed access for national 
security purposes. No other country has these two exceptions, although 
Russia does have a type of national security exclusion. Therefore, what 
is done under those exceptions does not create a concern about 
establishing a precedent that others will seek to emulate. However, we 
need to exercise great caution in how we deal with the other provisions 
of the Protocol since non nuclear weapon states have identical 
provisions in their protocols. When implementing these other 
provisions, the question needs to be constantly posed whether a country 
like Iran, for example, should have a similar right. If it exercises 
that right, how would that affect the Agency's ability to find 
undeclared nuclear materials and activities.

                               CONCLUSION

    The Protocol significantly strengthens the ability of the Agency to 
deter or detect undeclared nuclear activities and materials. That 
strengthening is a substantial benefit to U.S. national security. 
Implementation of the Protocol in the United States presents minimal 
risks to U.S. national interest. Therefore, this Committee should 
recommend that the Senate give its advice and consent to ratification 
of the Additional Protocol.
                              ----------                              


            Responses to Committee Questions for the Record


Administration Responses to Questions for the Record, Submitted by the 
                   Senate Foreign Relations Committee

    Question 1. Beyond the terms of the Subsidiary Arrangement, what 
specific measures will the United States take to ensure that classified 
material is not compromised during inspections carried out under the 
Additional Protocol?

    Answer. [DELETED]

    Question 2. The Letter of Submittal states that the use of the 
National Security Exclusion by any Federal Agency ``will be guided by 
principles developed for its application.'' In open form if possible, 
but in classified form in if necessary, please specify these 
principles. Will the principles apply equally to all Federal Agencies 
that have equities at stake in the Additional Protocol? For a case in 
which two or more agencies disagree on the acceptability of a proposed 
inspection, please lay out the process that would occur and to what 
extent the President could intervene to resolve the dispute.

    Answer. [DELETED]

    Question 3. The Article-by-Article analysis submitted with Treaty 
Doc. 107-7 states that the National Security Exclusion will be 
exercised when the application of the Additional Protocol's provisions 
would involve ``activities with direct national security significance 
to the United States or to locations and information associated with 
such activities'' (Article 1.b). What factors will go into any 
determination by the United States that a site or facility has ``direct 
national security significance?'' What is the meaning of the term 
``direct national security significance'' as it is used in the 
Additional Protocol? Does the Administration interpret this term to 
mean sites and activities associated with the U.S. nuclear weapons 
complex and not those facilities, sites and activities associated with 
the U.S. civil nuclear power and research industry?

    Answer. [DELETED]

    Question 4. Has the U.S. Government conducted site vulnerability 
assessments for those locations that the U.S. Government expects to 
include in its initial declaration under the Additional Protocol? What 
is the expected length of time needed to complete those inspections? 
What is the utility of waiting for completion of all such inspections 
before the Additional Protocol enters into force?

    Answer. No final vulnerability assessments have been completed. In 
cooperation with the lead agency for implementing the Additional 
Protocol at a given location, agencies with affected national security 
equities will be responsible for conducting or facilitating 
vulnerability assessments at those locations which may have activities 
or information of direct national security significance to the United 
States. As a result of these vulnerability assessments, in cases where 
the equity agency deems there is information, activities, and locations 
of direct national security significance which cannot be protected, the 
national security exclusion will be used.
    DOD, in cooperation with DOE, conducted 10 vulnerability 
assessments at DOE facilities in 1999-2000. These assessments were 
based on preliminary assumptions that are no longer valid and will need 
to be revisited. This process is underway. In addition to initial 
assessments and procedure revisions to support entry into force, DOE 
sites will integrate Additional Protocol requirements into its periodic 
security assessment, planning, and procedure updates. Furthermore, a 
subgroup of the DOD Nuclear Safeguards Implementation Working Group 
will identify other sites that require vulnerability assessments. The 
completion date depends on the number of locations identified for 
vulnerability assessments and available resources. All necessary site 
vulnerability assessments will be completed by entry-into-force of the 
U.S. Additional Protocol.

    Question 5. The Committee has been informed, through briefings, 
that the IAEA, to date, has a perfect record with regard to the 
handling of information gained in the United States during inspections 
and from U.S. declarations. Please provide the Committee with any past 
statements, reports, or other formal communications from the U.S. 
intelligence community regarding the IAEA's record of protection of 
sensitive information obtained through U.S. declarations and 
inspections. How has the IAEA strengthened its security regime to meet 
the requirements of Article 15 in the Additional Protocol? Does the 
IAEA need to take any further measures in this regard?

    Answer. The executive branch is unaware of any statements, reports, 
or other formal communications from the U.S. intelligence community 
regarding the IAEA's record of protection of sensitive information 
obtained through U.S. declarations and inspections.
    During the negotiation of the Model Additional Protocol, States 
pushed for a more detailed system for protecting safeguards 
confidential information, in light of the broader declaration 
requirements in the Protocol. Article 15 of the Additional Protocol 
requires the Agency to submit its regime for the protection of 
confidential information for approval and periodic review by the Board 
of Governors, to implement measures for the handling of confidential 
information, to impose conditions of staff employment relating to the 
protection of confidential information, and to have in place procedures 
for breaches or alleged breaches of confidentiality. Following the 
Board's approval of the Model Protocol, the IAEA received Board 
approval in December 1997 for an updated regime for protection of 
confidential information. The United States joined the Board in 
approving the revised regime.
    The new regime is substantially more detailed than what existed 
previously. For example, the new regime includes penalties for IAEA 
staff found to be in breach of their obligations, including potential 
exposure to civil and criminal penalties and waiver by the Agency of 
legal immunities. The IAEA has continued to make regular reports to the 
Board on its progress in implementing security improvements in such 
areas.
    The United States has supported and participated in IAEA's efforts 
in this area. The United States, through its voluntary contribution to 
the IAEA, has provided technical assistance to the IAEA in improving 
information security in the Department of Safeguards, including in its 
safeguards information systems. The IAEA has made substantial and 
steady progress in implementing the recommendations made.

    Question 6. Is there any need for the IAEA to amend or change its 
contractual arrangements with its inspectors and its staff in Vienna to 
reflect the additional types of information that could be obtained in 
the United States as a result of inspections under the Additional 
Protocol?

    Answer. The IAEA's review of security-related issues is on-going. 
Article 15 of the Additional Protocol requires the Agency to submit its 
regime for the protection of confidential information for approval and 
periodic review by the Board of Governors, to implement measures for 
the handling of confidential information, to impose conditions of staff 
employment relating to the protection of confidential information, and 
to have in place procedures for breaches or alleged breaches of 
confidentiality. Following the Board's approval of the Model Protocol, 
the IAEA received Board approval in December 1997 for an updated regime 
for protection of confidential information. The United States joined 
the Board in approving the revised regime.
    The new regime is substantially more detailed than what existed 
previously. For example, the new regime includes penalties for IAEA 
staff found to be in breach of their obligations, including potential 
exposure to civil and criminal penalties and waiver by the Agency of 
legal immunities. The IAEA has continued to make regular reports to the 
Board on its progress in implementing security improvements in such 
areas.

    Question 7. What is the likely impact of Article 14.b of the 
Additional Protocol? For example, will the United States require that 
certain IAEA communications be encrypted?

    Answer. Under Article 14, the United States is required to permit 
and protect unimpeded communications by the Agency for official 
purposes between Agency inspectors in the United States and Agency 
Headquarters and/or Regional Offices. The Agency has the right, in 
consultation with the United States, to make use of internationally 
established systems of direct communications, including satellite 
systems and other forms of telecommunication. In so doing, however, the 
Agency must protect from disclosure any information that the United 
States regards as being of particular sensitivity. If such information 
is provided to the IAEA, we will ensure that they will take every 
necessary precaution to prevent its disclosure, including using 
encrypted communications where appropriate. Protection of such 
information is a concern to many States under the safeguards system, 
and the IAEA has been highly responsive to States' concerns.

    Question 8. What impact did the decision by the United States and 
other nuclear weapon states (NWS) to sign an Additional Protocols have 
on the willingness of non-nuclear weapon states (NNWS) to agree to the 
text of the Additional Protocol that they are urged to adopt? What is 
the likely impact of U.S. ratification of its Additional Protocol on 
those states that have not yet signed or ratified an Additional 
Protocol?

    Answer. During the negotiations of the Model Protocol, many non-
nuclear-weapon states parties pushed to water down the provisions of 
the document, arguing that the intrusiveness of the measures and the 
costs to industry would be too great, and would place them at a 
commercial disadvantage relative to the United States. To defuse these 
arguments, the United States pledged to accept the Protocol in its 
entirety, with the addition of a National Security Exclusion allowing 
the United States to exclude from the Protocol activities of direct 
national security significance to the United States. This offer was 
critical to gaining the acceptance of the Protocol by countries such as 
Germany and Japan, and was relied on by their governments in persuading 
their legislatures to approve their Protocols. Japan's Additional 
Protocol is already in force. Moreover, Japan's implementation of the 
Protocol has been instrumental in getting a large number of other 
states to sign protocols. Germany and nearly all other states of the 
European Union have completed their ratification processes; entry into 
force will take place once all EU states have completed their 
ratification processes.
    The U.S. offer on the Protocol was an extension of the original 
U.S. pledge to accept the same safeguards on all of its civil nuclear 
facilities that non-nuclear-weapon states parties are subject to under 
the NPT. This pledge, first made by President Johnson and sustained by 
every administration since, helped the United States demonstrate that 
adherence to the NPT did not place other countries at a commercial 
disadvantage, either because of increased costs associated with 
safeguards or because of the risk of the compromise of proprietary 
information, and was critical to gaining widespread adherence to a 
strong NPT.
    U.S. ratification will put the U.S. in a better position to promote 
adherence to Additional Protocols by others. Waiting for still more 
states to ratify their Additional Protocols would not serve the 
nonproliferation interests of the United States.

    Question 9. Please outline past, present, and planned efforts 
relating to U.S. diplomatic outreach in pressing for universal adoption 
of Additional Protocols by NNWS parties to the Treaty on the Non-
proliferation of Nuclear Weapons. How will Senate ratification of the 
Additional Protocol benefit these efforts?

    Answer. Both when the United States signed its Additional Protocol 
in 1998, and when President Bush transmitted the Additional Protocol to 
the Senate in May 2002, U.S. Embassies around the world were asked to 
press the host countries to adopt the Additional Protocol. We have also 
raised the issue at appropriate opportunities, such as Assistant 
Secretary John Wolf's trip to Argentina and Brazil in May 2003. Since 
September 2000, when the IAEA adopted an Action Plan to promote 
adherence to safeguards agreements and Additional Protocols, we have 
focused on supporting the IAEA's outreach efforts. We participated in 
IAEA regional outreach seminars in Japan, Peru, Kazakhstan, South 
Africa, Malaysia, Romania and Uzbekistan and have provided voluntary 
contributions to support those and other IAEA efforts.
    The United States has stated its strong support for universal 
adherence to the Additional Protocol. Achieving this goal would be 
greatly facilitated by ratification of the U.S. Additional Protocol, as 
signed. Should the Senate give its advice and consent to ratification 
for the U.S. Additional Protocol, we would initiate another outreach in 
diplomatic channels to press states to sign and ratify Protocols.

    Question 10. How will universal adoption of Additional Protocols by 
NNWS enhance the capability of the IAEA to detect clandestine nuclear 
weapons programs in NNWS party to the Treaty on the Non-proliferation 
of Nuclear Weapons?

    Answer. Universal adoption of the Model Additional Protocol will 
give IAEA inspectors greater information and access to nuclear and 
related facilities worldwide. By accepting a new legally-binding 
Protocol, States will assume new obligations that will require making 
all their nuclear activities more transparent. It is critical to our 
national security to minimize the number of nations with or pursuing 
nuclear weapons, as well as ensure that nuclear devices or material do 
not wind up in the hands of non-state actors, such as terrorist groups. 
Promoting the widest possible application of the strongest possible 
system of IAEA safeguards helps us accomplish this goal.

    Question 11. Please explain the background and rationale for the 
April 30, 2002 letter from Ambassador Kenneth Brill to IAEA Director 
General Mohamed ElBaradei. Has the IAEA formally or informally 
responded to the letter? Is there any reason to believe the IAEA does 
not accept any of the stipulations laid out by the United States in the 
letter?

    Answer. The letter was sent as a U.S. initiative and not as a 
response to any request by an IAEA official. We wanted to inform the 
IAEA explicitly and directly about the U.S. approach toward the 
Additional Protocol and the importance of the National Security 
Exclusion, rather than just indirectly through the documents 
transmitting the Protocol to the Senate. No official response, either 
written or oral, to the April 30, 2002, letter from Ambassador Kenneth 
Brill to IAEA Director General Mohamed ElBaradei was requested or 
received. There is no evidence of any negative reaction.

    Question 12. Please explain the rationale for the following 
statement in Ambassador Brill's letter:

          ``Certain activities that occur at locations that are part of 
        the United States civil nuclear program may also be excluded 
        from the declaration and access provisions of the Additional 
        Protocol in accordance with the terms of the NSE.''

    Answer. [DELETED]

    Question 13. Please explain the practical consequences expected to 
flow from this statement in Ambassador Brill's letter:
          ``The United States expects the IAEA to seek access to the 
        United States for the purpose of increasing the effectiveness 
        or efficiency of IAEA safeguards at facilities in non-nuclear-
        weapon states, or enhancing the capability of the IAEA to 
        detect undeclared nuclear material and activities in Non-
        nuclear-weapon state[s].''
          Is there any reason to believe the IAEA disagrees with the 
        substance and/or import of this statement?

    Answer. The primary purpose of the Additional Protocol in a non-
nuclear-weapon state is to enable the IAEA to provide some assurance 
about the absence of undeclared nuclear activities in that state. This 
purpose does not apply to nuclear-weapon states, which are understood 
to have extensive nuclear activities not required to be declared to the 
IAEA.
    Ambassador Brill's statement conveys our view that, as a practical 
matter, the Agency's interest in the U.S. declarations would be focused 
on clarifying relationships we may have with non-nuclear weapons 
states. As such, most requests from the IAEA would likely be requests 
for further information rather than complementary access visits.
    The Administration did not ask for or receive a reply, but has no 
reason to believe the IAEA disagrees with the substance and/or import 
of the above-referenced statement from Ambassador Brill's letter.

    Question 14. Ambassador Brill's letter states that, pursuant to 
Article 1.b of the Additional Protocol, ``the United States will supply 
information pursuant to Article 2 of the Additional Protocol only on 
those unclassified activities to which it has determined that it will 
be able to provide the IAEA with sufficient access, including with 
managed access, to enable it to verify the accuracy of the declared 
information.'' Why did the United States not choose to supply 
information pursuant to Article 2 on all unclassified activities, even 
if the United States could not offer sufficient access to the IAEA 
necessary to verify the accuracy of declared information on some 
activities?

    Answer. It is not the purpose of Protocol implementation in nuclear 
weapons states to permit the IAEA to verify the completeness of the 
state's declaration. The primary purpose of the U.S. Protocol is to 
demonstrate that we are willing to accept the same safeguards on civil 
nuclear activities as non-nuclear weapon states. Providing declarations 
on locations for which access is impossible would result in having to 
deny the IAEA access should they request access, and would be 
detrimental to U.S. policy goals for encouraging implementation of 
Additional Protocols and strengthened safeguards and therefore not 
serve the purpose of the Protocol.

    Question 15. Ambassador Brill's letter states that ``the United 
States intends to use the NSE [the `National Security Exclusion' 
provided by Article 1.b of the Additional Protocol] with regard to 
location specific environmental sampling at any current or former 
nuclear weapon production complex site.'' What are the capabilities of 
such sampling, as used by the IAEA, and why do they make it unwise to 
permit any and all such sampling at any current or former nuclear 
weapon production complex sites, as opposed to a case-by-case 
consideration of requests to permit such sampling? In open form if 
possible, but in classified form in if necessary, could the 
Administration clarify its policy with respect to the use of sampling 
techniques, to include environmental sampling, to clarify the risks 
associated with each type of sampling technique for U.S. national 
security or business proprietary information?

    Answer. [DELETED]

    Question 16. Ambassador Brill's letter states that ``the United 
States does not foresee circumstances in which the IAEA would need to 
propose to conduct wide area environmental sampling in the United 
States'' pursuant to Article 9 of the Additional Protocol. Could the 
Administration clarify its understanding of what the impact of this 
statement is expected to be, since it is not accompanied by any warning 
that the United States will invoke Article 1.b (the National Security 
Exclusion) to deny permission to conduct such sampling?

    Answer. Under Article 9, the United States shall provide the Agency 
with access to locations specified by the Agency to carry out wide-area 
environmental sampling, provided that, if the United States is unable 
to provide such access, it shall make every reasonable effort to 
satisfy Agency requirements at alternative locations. Article 9 further 
provides that the Agency shall not seek such access until the use of 
wide-area environmental sampling and the procedural arrangements 
therefor have been approved by the Agency's Board of Governors and 
following consultations between the Agency and the United States. Such 
arrangements have not been brought before or approved by the Board. The 
United States has informed the Agency that even if such arrangements 
were approved, the United States does not foresee circumstances in 
which the Agency would need to propose to conduct wide area 
environmental sampling. If wide-area sampling is eventually approved by 
the Board of Governors, its use in the United States requires 
consultations between the IAEA and the United States. Given the 
requirement for consultation and therefore U.S. agreement, the United 
States did not feel it necessary to make a direct reference to Article 
1.b.

    Question 17. When does the Administration expect a definitive 
decision from the IAEA Board of Governors regarding the use of wide-
area environmental sampling and the procedural arrangements for its use 
in the United States pursuant to Article 9 of the Additional Protocol? 
Is the Administration seeking such a decision? For locations co-located 
with locations that are not of direct national security significance in 
the United States, yet which do contain information or activities of 
direct national security significance, what specific procedural 
arrangements would the United States seek to create regarding the use 
of wide-area environmental sampling? Would these specific arrangements 
need to go beyond the right of managed access contained in Article 1.c? 
Why did the United States not seek a more definitive provision with 
respect to wide-area environmental sampling during negotiations on the 
Additional Protocol?

    Answer. [DELETED]

    Question 18. Are there any formal or informal understandings with 
the IAEA with regard to the use of wide-area environmental sampling in 
the United States? What are the expected capabilities of IAEA wide-area 
environmental sampling, and what potential risks for U.S. locations 
result from those capabilities? Has the interagency conducted an 
analysis of the likely impacts of wide-area environmental sampling for 
the United States, including any national security implications for 
U.S. locations? If so, please submit this analysis to the committee.

    Answer. [DELETED]

    Question 19. Ambassador Brill's letter also states: ``The United 
States expects the IAEA to seek access to the United States for the 
purpose of increasing the effectiveness or efficiency of IAEA 
safeguards at facilities in NNWS, or enhancing the capability of the 
IAEA to detect undeclared nuclear material and activities in NNWS.'' 
Would it not be reasonable to expect that the IAEA would want to 
practice the use of wide-area environmental sampling in a location 
where a positive result might be obtained? To what extent, if any, do 
other NWS permit the use of wide-area environmental sampling under 
their Additional Protocols?

    Answer. The United States has informed the Agency that, if 
arrangements for wide-area environmental sampling were approved, the 
United States does not foresee circumstances in which the Agency would 
need to propose to conduct it in the United States. If wide-area 
sampling is eventually approved by the Board of Governors, its use in 
the United States requires consultations, and therefore agreement, 
between the IAEA and the United States.
    With regard to the other nuclear weapons states, the UK accepted a 
limited version of Article 9 that states it may accept wide area 
sampling if it were focused on detecting covert activities in NNWS. No 
other NWS have provisions for wide area sampling.

    Question 20. Please clarify the meaning of the clause in the 
Preamble to the Additional Protocol calling for the frequency and 
intensity of activities described in the Protocol to be kept to a 
minimum.

    Answer. The full quote from the preamble reads ``the frequency and 
intensity of activities described in the Protocol shall be kept to the 
minimum consistent with the objective of strengthening the 
effectiveness and improving the efficiency of Agency safeguards.'' 
Strengthening safeguards is the primary objective of the Model 
Additional Protocol. Consistent with that objective, however, the 
frequency and intensity of implementation of protocol measures is to be 
minimized. The declarations of the Additional Protocol are not to be 
verified mechanistically or systematically because the Protocol covers 
activities and materials that could contribute to production of nuclear 
material, whereas traditional safeguards cover actual nuclear material. 
As a practical matter, mechanistic and systematic verification of the 
Additional Protocol would require a high expenditure of IAEA effort on 
routine verification and would prevent the IAEA from focusing its 
efforts on significant questions and inconsistencies.

    Question 21. Have any subsidiary agreements been signed, pursuant 
to Article 13, other than the one submitted to the Senate with the 
Additional Protocol as a part the package accompanying Treaty Document 
107-7? Is the Administration awaiting the outcome of Senate 
consideration of the Additional Protocol to begin negotiations on any 
further subsidiary arrangements? If not, is the Administration now 
negotiating any such agreements, and are those expected to be completed 
in the coming months? If so, please summarize them. What factors will 
determine whether a subsidiary arrangement is submitted to the Senate 
for its advice and consent to ratification?

    Answer. No other subsidiary arrangements have been signed or 
negotiated, nor is the Administration negotiating any such agreement. 
The Administration is exploring the development of General Part 
Subsidiary Arrangements, which could include technical matters such as 
describing reporting formats, to facilitate implementation of the 
Additional Protocol. Subsidiary arrangements under the Additional 
Protocol, as with those that are periodically negotiated under the 
existing Safeguards Agreement, are of a detailed technical character 
and do not change the rights and obligations of the Parties. As such, 
Subsidiary Arrangements have not been submitted to the Senate for its 
approval. The normal factors for determining whether an agreement is 
subject to Senate advice and consent would be applied to future 
subsidiary arrangements.

    Question 22. What is the record of IAEA inspections in the United 
States under the existing Safeguards Protocol? How many inspections 
does the IAEA normally conduct in the United States, other than those 
requested by the United States? Is the Additional Protocol expected to 
result in many more inspections of U.S. locations?

    Answer. During 2003, each of the four facilities selected for 
safeguards (out of approximately 250 eligible facilities) were 
inspected once every month by the IAEA. In addition, one of the 
facilities that was previously inspected was decommissioned and 
deselected for safeguards in 2003. All of these inspections were 
conducted at the request of the United States in order to safeguard 
fissile material declared excess to our defense needs. In past years at 
the invitation of the United States, IAEA safeguards inspectors have 
conducted inspections in the United States as part of safeguards 
experiments. The IAEA has conducted no other inspections in the United 
States since 1993.
    There were 86 complementary accesses world-wide by the IAEA during 
2002 (the last year that we have full information). The IAEA is not 
expected to waste scarce resources in seeking complementary accesses in 
a nuclear-weapon state such as the United States.
    Note: We understand the term ``existing Safeguards Protocol'' to 
mean the U.S.-IAEA Safeguards Agreement, which entered into force in 
1980, not the initial Protocol to the U.S.-IAEA Safeguards Agreement, 
which was signed in 1977, and which does not involve inspections.

    Question 23. Please explain the procedures within the executive 
branch for reviewing proposed IAEA inspectors to carry out the 
Additional Protocol and deciding whether or not to accept them, 
pursuant to Article 11.

    Answer. [DELETED]

    Question 24. For inspections in the United States under the 
Additional Protocol, will there be defined points of entry (POEs) at 
all sites where information of direct national security significance 
exists? To what extent will the United States inspect equipment to be 
used under an Additional Protocol inspection in the United States?
    Answer. [DELETED]

    Question 25. Will all counterintelligence and security training for 
declared locations with direct national security significance under the 
Additional Protocol be completed within 180 days after the deposit of 
the United States instrument of ratification? Will all such planning 
and training be completed for possible short-notice inspections at such 
locations, as well?

    Answer. The Administration will not deposit the United States' 
instrument of ratification until such time as it determines we will be 
fully prepared to meet required declaration timelines and ensure 
readiness for complementary access. We will ensure the requisite 
counterintelligence and security training will be done, including that 
associated with inspections under the Additional Protocol.

    Question 26. As of today, has the Administration completed, in at 
least draft form, all the necessary regulation and implementation 
legislation? When does the Administration anticipate that all such 
regulation will enter into force? What regulatory changes, if any, will 
be required? Which of these regulatory changes, if any, will not 
require implementing legislation?

    Answer. The only implementing legislation that should be required 
to implement the treaty was submitted by OMB to the Congress in 
November. Draft regulations are being prepared by both NRC and DOC as 
part of their preparations for implementation. Before the rules can be 
published, the information collection forms must be approved by OMB and 
other regulatory requirements must be satisfied, (e.g., the Paperwork 
Reduction Act). This approval process cannot be performed before the 
treaty has been ratified and legislation is enacted. DOC's proposed 
rule must be published in the Federal Register and will request public 
comments before a final rule is issued. It is expected to take less 
than a year from assignment of implementing responsibility by the 
President to NRC and DOC until the new rules are published for 
implementation. The regulatory changes necessary are those that 
establish the requirement for entities not identified on the Eligible 
Facilities List to report information and to provide access to the IAEA 
at the covered location. The Presidential assignment of 
responsibilities that follows upon the authority provided to him in the 
implementing legislation provides NRC and DOC the authority to 
implement their respective responsibilities. The implementing 
legislation also provides the legal basis for the DOC to provide the 
IAEA with access to locations.

    Question 27. Does the IAEA accept the view of the United States 
that it has the right subsequently to withdraw acceptance of inspectors 
as needed, even if it raised no objections when the inspectors were 
initially designated for the United States? Is there any precedent for 
the rejection of inspectors after their designation and previous 
acceptance under any other inspection regime currently in force in the 
United States?

    Answer. The answer for both questions is yes. Non-nuclear weapon 
state parties to the standard IAEA safeguards agreement pursuant to the 
Nuclear Non-Proliferation Treaty have the same right.
    The United States reviews all inspectors proposed by the IAEA for 
designation as inspectors. We may reject the designation of individual 
inspectors to the United States for any reason or for no reason at all. 
Our criteria for these decisions change from time to time in accordance 
with policy considerations. At present, nationals of states identified 
by the United States as state sponsors of terrorism are automatically 
rejected. We also look closely at inspectors from other states of 
proliferation concern.
    Each year a list of current inspectors designated to the U.S. is 
received by the U.S. and the list is reviewed. If an inspector of 
concern is identified on the list, the IAEA is requested to remove the 
inspector from designation. Within the last decade, the U.S. has 
rejected designations of approximately 10 inspectors, some of whom had 
been previously accepted. In any given year, the U.S. might reject 1-5% 
of the inspectors designated. The Additional Protocol will not change 
the basic format of the current review procedures.

    Question 28. Please provide the precise number of U.S. sites 
currently subject to possible IAEA inspection under the Voluntary 
Offer, the types of sites which will be declared under the Additional 
Protocol, and an estimate of the number of locations of each type. If a 
list of such additional sites that will have to be prepared for 
possible inspections has been prepared, please provide it to the 
committee.

    Answer. [DELETED]

    Question 29. Please describe the U.S. Government's outreach to U.S. 
industry in negotiating the Additional Protocol, in drafting proposed 
implementing legislation, and/or to prepare U.S. industry for the 
possibility of new or expanded IAEA inspections. Have any trial 
inspections been conducted? Has any training been provided? What 
additional outreach activities are planned if the Additional Protocol 
is ratified?
          What outreach has occurred, or is planned, for companies that 
        are not members of the Nuclear Energy Institute (NEI)?

    Answer. Since 1997, the executive branch has held several meetings 
with the commercial industry through the Nuclear Energy Institute 
(NEI). These meetings have been with NEI and in meetings of commercial 
entities organized by NEI. Training and trial inspection activities 
have been performed at DOE facilities. In 2002, the Department of 
Commerce published a Federal Register notice seeking input from 
industry with respect to the Additional Protocol. This notice drew only 
two responses.\1\
---------------------------------------------------------------------------
    \1\ One respondent does not foresee significant burden on industry 
from ratification and implementation of the Additional Protocol. The 
other respondent noted its strong support for the objectives of the 
Additional Protocol, but withheld conclusions on the impact of the 
Additional Protocol pending enactment of implementing legislation, 
promulgation of regulations and more information on procedures for the 
protection of proprietary information.
---------------------------------------------------------------------------
    Training and trial inspections have not been conducted at 
commercial locations because NRC and DOC do not have the authority to 
implement these activities until the Additional Protocol is ratified. 
Should the implementing legislation be enacted, rule changes and 
guidance documents would then be prepared for publication and 
discussion with the industry and for use in training.

    Question 30. What additional costs will U.S. industry be expected 
to bear if the Additional Protocol is ratified? To what extent will 
U.S. firms be able to recoup their costs (e.g., pursuant to Article 14 
of the underlying Safeguards Agreement)?

    Answer. The U.S. industry is expected to bear the costs of 
submitting declarations to the Nuclear Regulatory Commission or the 
Department of Commerce and for escorting/accompanying the IAEA 
inspectors and U.S. Government support team during access to the 
location. The access may include providing requested safeguards-
relevant records for the review of the inspectors. There is no 
provision for routine access under the Additional Protocol, and 
implementation burdens in non-nuclear-weapon states have been minimal. 
We expect the Agency will seek very few complementary accesses each 
year in the United States.
    The provisions of Article 14 of the Safeguards Agreement remain in 
force. If the United States or persons under its jurisdiction incur 
extraordinary expenses as a result of a specific request by the IAEA, 
the IAEA is obligated to reimburse those expenses, provided it has 
agreed in advance to do so.

    Question 31. What additional costs will the U.S. Government bear in 
implementing the Additional Protocol? Will such costs be absorbed 
within existing budgets, or will additional funds be required?

    Answer. The U.S. Government Agencies will incur costs related to:
   preparing regulations and guidance
   performing training for implementing the Additional 
        Protocol;
   collecting, evaluating, storing, and submitting Additional 
        Protocol information;
   performing vulnerability assessments;
   preparing security plans;
   implementing the escorting procedures associated with IAEA 
        access to a location; and
   supporting IAEA for implementation of the Additional 
        Protocol in other countries.

    We are still assessing the full start-up costs for implementing the 
Additional Protocol. We assume that once those start-up costs are 
finalized, approximately ten percent of that figure will be required 
for recurring costs in subsequent years. The Administration will 
allocate resources from within funds appropriated in FY2004 and the 
Administration's request in FY2005 to meet needs in those years.
    The IAEA member states decided in 2003 on an increase of $19.4 
million in the safeguards budget between 2004 and 2007. This increase 
would cover a variety of needs, including safeguarding large new 
facilities and activities as well as implementing the Additional 
Protocol in an increasing number of countries. We estimated that 
protocol implementation accounted for roughly 10% of the needed 
increase in resources. The U.S. share of the projected increase in IAEA 
costs of protocol implementation is therefore roughly $0.5 million/
year. When the Model Additional Protocol was adopted, it was recognized 
that there would be some near-term cost increases, but the long-term 
goal was cost neutrality. Cost increases are expected to be offset over 
time by improvements in efficiency.
    The United States also provides significant extrabudgetary support 
to IAEA safeguards, much of it for implementation of the Additional 
Protocol and other safeguards strengthening measures. However, there is 
no clear division between funding for the protocol and other safeguards 
support activities.

    Question 32. How will the Additional Protocol affect the 
implementation of IAEA inspections in the United States? Will there be 
any changes to the use of escorts during such inspections?

    Answer. IAEA inspections under our Safeguards Agreement will 
continue as they have in the past. At DOE and NRC facilities, IAEA 
inspectors are always escorted. Under the Additional Protocol our 
procedures will differ somewhat; however, these differences have 
already been discussed with IAEA inspectors who found no issue with 
them.

    Question 33. What are the terms and procedures under the Additional 
Protocols with the other four NWS regarding the manner in which 
inspectors are escorted during the conduct of their inspections in 
those states? While in other NWS, are inspectors escorted while they 
are at the site, facility or location, or are they escorted during 
their entire stay, and are they under 24-hour surveillance?

    Answer. Neither non-nuclear weapon states nor nuclear weapon states 
require 24-hour escorts for IAEA inspectors, either in practice or in 
their Additional Protocols. IAEA inspectors may be met at the airport 
for courtesy reasons or if personal safety is in question, e.g., 
Pakistan and Algeria, but otherwise they are on their own everywhere. 
No country requires escorts on a 24-hour basis. Usually the inspectors 
meet the government representatives at the gate to the facility/
location they will be inspecting. In some countries the presence of 
government officials might make moving about easier, but it is not 
required by any state. Inspectors may be under surveillance, 
particularly in certain countries.
    Article 4(f) gives parties to the Additional Protocol the right to 
accompany IAEA inspectors during complementary access, provided that 
the inspectors are not delayed or impeded in the exercise of their 
functions. This provision was accepted by the United States and France. 
The United Kingdom's Additional Protocol gives it (or the EURATOM) the 
right to escort IAEA inspectors during access to locations under 
Article 5(a) or for access involving nuclear material, provided that 
the inspectors are not delayed or impeded in the exercise of their 
functions. The Additional Protocols of Russia and China do not provide 
for complementary access.

    Question 34. Article 16 of the Additional Protocol permits the IAEA 
Board of Governors to amend either of the Annexes. Can such an 
amendment be adopted without the approval of the United States? Has the 
Board exercised such powers regarding any previous U.S.-IAEA agreement? 
If so, has it ever adopted an amendment over U.S. objections?

    Answer. Article 16.b of the Additional Protocol allows Annexes I 
and II to be amended by a majority vote of the International Atomic 
Energy Agency (IAEA) Board of Governors. It is possible that the Board 
could adopt amendments without U.S. consent or of a type that goes 
beyond that which the Senate can authorize through its present advice 
and consent to the Protocol. These possibilities raise concerns under 
Article II, section 2, of the Constitution. The Administration has 
proposed an understanding which addresses these concerns by making 
clear that amendments to the Protocol will take effect for the United 
States only in accordance with its constitutional requirements.
    In accordance with Article 23(b) of the Safeguards Agreement, the 
IAEA does not have any authority to amend the U.S.-IAEA Safeguards 
Agreement absent U.S. agreement. Two provisions of the Safeguards 
Agreement call on the sides to implement available technical 
improvements, but the implementation of those provisions does not 
constitute amendments. Specifically, Article 6 gives the IAEA the 
authority to adopt the best available technology to implement 
safeguards, and Article 53 obligates the United States to adopt new 
measurement techniques and report new data, generally without even a 
Board of Governors decision. These provisions have never been 
implemented over U.S. objections.

    Question 35. What will the implementing procedures be for invoking 
and arranging managed access pursuant to Article 7 of the Additional 
Protocol? How will those procedures differ from current procedures for 
implementing limitations on IAEA access (e.g., pursuant to Article 74 
of the Safeguards Agreement)?

    Answer. The provisions of Article 74 of the Safeguards Agreement do 
not affect the provisions of the Additional Protocol, with one 
exception. Article 74(d) of the Safeguards Agreement allows the United 
States to impose ``extended limitations on access by the Agency'' in 
``unusual circumstances,'' but requires the United States and the 
Agency to make arrangements to allow the Agency to discharge its 
safeguards responsibilities, and requires the IAEA to report all such 
arrangements to the Board of Governors. This provision is meant to 
allow for legitimate interruptions in access at nuclear facilities, 
such as safety-related conditions.
    The United States has the unilateral right to invoke managed access 
in accordance with Article 7. The U.S. Government will provide 
information to the reporting locations on Article 7 managed access. 
When required, managed access measures and procedures will be developed 
in advance of IAEA arrival at the location. On IAEA arrival, steps will 
be taken, if necessary, to permit the IAEA to accomplish their 
safeguards objectives while maintaining protection of information and 
compliance with health, safety, and security regulations.
    When the Additional Protocol was concluded, a Subsidiary 
Arrangement was agreed to between the United States and the Agency 
specifying, for the purposes of the Additional Protocol with the United 
States, as a nuclear-weapon state, measures that could be taken to 
manage access. These may include, inter alia: (a) removal of sensitive 
papers from office spaces; (b) shrouding of sensitive displays, stores, 
and equipment; (c) shrouding of sensitive pieces of equipment, such as 
computers or electronic systems; (d) logging off of computer systems 
and turning off data indicating devices; (e) restriction of safeguards 
instrumentation or environmental sampling to the purpose of the access; 
and (f) in exceptional cases, giving only individual inspectors access 
to certain parts of the inspection location.
    The managed access measures and procedures implemented at the four 
currently inspected facilities are not substantially different than the 
measures and procedures envisioned for use under the Additional 
Protocol.
    Where there is a concern about protecting information or activities 
of direct national security significance to the United States, of 
course, the United States could invoke Article 1.c to require any 
necessary access restrictions or Article 1.b to exclude the location 
entirely from access.

    Question 36. Article 4.a of the Additional Protocol states: ``The 
Agency shall not mechanistically or systematically seek to verify the 
information referred to in Article 2.'' Equivalent language is 
contained in the (model) Additional Protocol that NNWS are urged to 
adopt. What was the U.S. position on this issue during the negotiation 
of the original Model Protocol?

    Answer. The United States agreed with this formulation (originally 
put forth by the German Delegation). We believed that it was important 
to distinguish clearly between activities which would be carried out 
pursuant to access under the Protocol and those already being carried 
out under comprehensive safeguards agreements based on INFCIRC/153. 
Indeed, under the Protocol, States' declarations would relate, in large 
part, to activities rather than to the nuclear material present at 
specific locations at specific times, so that systematic and 
mechanistic verification would make little sense.
    ``Not mechanistically or systematically'' is a necessary 
requirement for cost-effective implementation of the Additional 
Protocol. Mechanistic and systematic implementation would require 
verification levels based on the amount of information declared by the 
State. Thus, those States with the largest programs would be subject to 
the largest verification effort. This would force the IAEA to expend 
most of the Additional Protocol effort in Canada, Japan and the 
European Community. The countries with the significant questions and 
inconsistencies with regards to their nuclear programs are not 
necessarily those states with large established civil nuclear programs. 
The mechanistic and systematic exclusion permits the IAEA to focus 
their verification efforts on states of concern.

    Question 37. Article 4.a(i) of the Additional Protocol requires 
that the IAEA be given certain access ``on a selective basis.'' What is 
the meaning and intended impact of that phrase? Does it pertain to how 
the locations are chosen, or rather to the extent of access at a 
location?

    Answer. The phrase ``on a selective basis'' is a term of art under 
the Protocol that refers to the manner in which IAEA chooses access 
under the Protocol.
    The phrase ``on a selective basis'' means that the IAEA will not 
mechanistically and systematically seek to verify all aspects of 
declarations made pursuant to the Additional Protocol at all locations 
where nuclear materials exist. However, the IAEA has the right to 
access to such locations based on technical considerations or specific 
concerns, without a requirement for prior consultation with the State. 
Since the United States, as a nuclear weapon state, has undeclared 
nuclear material and activities, access is not expected to be of much 
interest under the U.S. Additional Protocol.

    Question 38. How does the IAEA choose locations for inspections in 
the United States under the Voluntary Offer? Are there any formal or 
informal understandings with the IAEA regarding inspections under the 
Additional Protocol?

    Answer. Pursuant to the U.S.-IAEA Safeguards Agreement, the United 
States has made eligible for IAEA safeguards about 250 nuclear 
facilities. These include a large number of power reactors and research 
reactors, commercial fuel fabrication plants, and uranium enrichment 
plants, as well as other types of facilities. In the case of a non-
nuclear-weapon state, the IAEA would have an obligation to inspect all 
of these facilities, as well as many other locations where nuclear 
material is used. In the United States, the IAEA has the right, but not 
the obligation, to select facilities for inspection.
    The initial facilities selected by the IAEA under the Safeguards 
Agreement were chosen to gain experience in inspecting the facility 
type and to place equal burden on facilities involved in international 
commerce. All six of the U.S. LEU fuel fabrication plants and the Gas 
Centrifuge Enrichment Plant were selected to place the same cost burden 
and risk to technology on these facilities as was being accepted by 
similar facilities in other countries.
    It is of interest to note that the IAEA, because of increasing 
budgetary pressures, discontinued inspections in the United States in 
1992. The IAEA resumed inspections in 1994 at the request of the U.S. 
Government, implementing safeguards on several tons of weapons-usable 
nuclear material declared excess to U.S. national security stockpiles. 
The IAEA undertook this effort on the condition that the United States 
reimburse the IAEA.
    With respect to the Additional Protocol, the formal understanding 
with the IAEA is that the U.S. will permit the application of IAEA 
safeguards to all locations except those of direct national security 
significance. There are no formal understandings with the IAEA, 
however, regarding the frequency with which they would seek 
complementary access to locations in the United States.
    Finally, in a letter dated January 23, 2004, Ambassador Kenneth 
Brill sought IAEA confirmation that complementary access will be 
conducted in a manner that is consistent with the Fourth Amendment. 
Although the IAEA has not yet replied to this letter, we expect a 
favorable response, and will ratify the treaty only after we receive 
such confirmation.

    Question 39. Article 8 of the Additional Protocol allows the United 
States to offer additional sites for IAEA inspection or to request 
particular IAEA ``verification activities.'' The IAEA ``shall, without 
delay, make every reasonable effort to act upon such a request.'' 
Please describe any likely or planned use of Article 8. If similar 
actions have occurred under the current Safeguards Agreement, please 
summarize U.S.-IAEA experience in this regard.

    Answer. This provision merely provides an option, not an 
obligation. To date, the United States has no plans to offer additional 
locations for IAEA verification under the Additional Protocol. This 
type of access might prove helpful to a country that becomes the target 
of false allegations, allowing it to request IAEA verification to clear 
up specific charges. It is difficult, however, to envisage how such 
additional transparency would be relevant in the United States, as an 
NPT nuclear weapons state.

    Question 40. Does the executive branch have any objection to 
sharing with the Congress any written reports issued by the IAEA 
pursuant to Article 10?

    Answer. No.

    Question 41. Why is there an arbitrary time period for the 
completion of a Subsidiary Arrangement, limited to 90 days from the 
date upon which either the United States or the Agency indicates the 
need for a Subsidiary Arrangement? What will happen to a proposed 
Subsidiary Accord if agreement cannot be reached by the 90th day?

    Answer. As a practical matter, since some declarations are required 
in a shorter time span than the initial declaration on locations, e.g., 
Article 2(a)(ix)(b), access could be sought soon after entry into force 
of the Protocol. The ninety day duration for completing a Subsidiary 
Arrangement provides incentive to both the IAEA and the State to 
conclude the agreement in a timely manner.

    Question 42. In what manner are the Additional Protocols negotiated 
by the IAEA with Russia and China different from the Additional 
Protocol between the IAEA and the United States.? If they are more 
restrictive of IAEA rights and privileges, why did the United States 
not seek similar safeguards?

    Answer. Substantial differences exist among the Additional 
Protocols of the nuclear weapon states. China's and Russia's Additional 
Protocols are quite restrictive. Both eliminated much of the substance 
of the Model Protocol, sharply limiting the scope of the declarations 
they are required to make and eliminating all associated IAEA access 
rights. Despite the limited scope of its Protocol, Russia also included 
a national security exclusion.
    China and Russia, however, did not play a leadership role in 
negotiations on the Additional Protocol. The United States played a 
significant role during the negotiation and insisted that the Protocol 
include robust requirements for expanded declarations and access by 
states. Our willingness to accept, on our civil nuclear program, all 
provisions of the Model Additional Protocol was decisive in achieving 
agreement on the Model and acceptance by key states.
    The U.S. Additional Protocol, unlike the other P-5 Protocols, 
includes the entire text of the Model Additional Protocol without 
alteration. However, because the U.S. Additional Protocol contains a 
national security exclusion as well as providing the right to use 
managed access, it provides sufficient protection against access to or 
disclosure of information or activities of direct national security 
significance.

    Question 43. Please outline the differences between the Additional 
Protocol signed between the United States and the IAEA and those 
Additional Protocols signed between the IAEA and the other four NWS.

    Answer. In contrast to the United States, the UK and France decided 
to focus their Protocols narrowly on areas in which its implementation 
could assist the IAEA in detecting undeclared nuclear activities in 
NNWS. The UK and France placed some limits on the categories of 
locations subject to declaration and access. In some cases, the 
purposes specified for access rights are modified, but the access 
rights remain the same, including the right of the IAEA to specify 
locations for access under Article 5.c. The UK and France did not 
include a national security exclusion in their Protocols. The Chinese 
and Russian Protocols depart from the model much more thoroughly, in 
essence limiting the state's obligations to declarations related to 
cooperation with non-nuclear-weapon states (NNWS), eliminating IAEA 
access rights entirely. For good measure, Russia's Protocol also 
includes a national security exclusion.
    The result of the UK's and France's adaptations are that almost all 
of the measures in the Model Protocol are reflected in the UK Protocol, 
but are generally altered to apply only in instances where activities 
have links with NNWS. For example, in the U.S. Protocol (following the 
Model), Article 2.a(iv) requires that we provide to the IAEA, ``[a] 
description of the scale of operations for each location engaged in'' 
various nuclear-related manufacturing operations. The UK Protocol 
requires the same information for such locations ``where these involve 
links with fuel cycle operations in a NNWS.'' In the UK's view, 
information about its manufacturing activities with links to NNWS could 
provide the IAEA with useful information about NNWS activities. Some 
changes, however, broaden the declaration requirements in other ways, 
e.g., in the UK case, where nuclear-related R&D is declarable under 
Article 2.a.i whether or not it involves nuclear material.
    The U.S. Protocol, because it contains a national security 
exclusion, provides more robust protection against disclosure of or 
access to information or activities of direct national security 
significance than do the UK and French Protocols. (The Chinese and 
Russian Protocols provide full protection by entirely eliminating IAEA 
access.) The U.K. and French Protocols, in contrast, do not contain an 
NSE or the ability to use managed access to protect information of 
national security significance.
    The U.S., UK, and French Protocols all allow the IAEA to seek 
access to any undeclared location under Article 5.c (5.b in the French 
Protocol). This right is not absolute under any of the Protocols, but 
the limitations in the Protocols differ. Specifically, each protocol 
provides for access to ``[a]ny location specified by the Agency . . .  
to carry out location-specific environmental sampling, provided that if 
the [UK/US] is unable to provide such access, the [UK/US] shall make 
every reasonable effort to satisfy Agency requirements, without delay, 
at adjacent locations or through other means.'' In the United States, 
the purpose of such access is to resolve a question or inconsistency 
related to U.S. declarations, and access is normally allowed only 
following an effort to resolve the question or inconsistency through 
consultations. In the UK, access is allowed where it ``will contribute 
to increasing the Agency's capability to detect undeclared nuclear 
material and activities in a NNWS,'' but with no requirement for 
advance consultations--a provision the U.S. would not choose to do 
without. In France, access is allowed to any location specified by the 
agency for sampling ``with the objective of enhancing the Agency's 
ability to detect undeclared nuclear activities in a NNWS. As in the 
United States, access is allowed to resolve a question or inconsistency 
related to U.S. declarations, and access is normally allowed only 
following an effort to resolve the question or inconsistency through 
consultations.

    Question 44. The provisions of the Additional Protocols agreed upon 
by the Russian Federation and the People's Republic of China with the 
IAEA require the two NWS to provide information to the IAEA only on 
nuclear exports and imports to and from NNWS, nuclear material located 
on the territory of other States, and international cooperation with 
NNWS in the field of the nuclear fuel cycle which has nuclear non-
proliferation significance. Furthermore, these Additional Protocols do 
not provide any rights for the IAEA to implement complementary access 
or wide-area environmental sampling.

    Answer. The Administration agrees with the above statement.

    Question 45. Why did the Russian Federation and the People's 
Republic of China insist upon, and the IAEA agree to, an Additional 
Protocol that only relates to their respective nuclear activities 
carried out for or jointly with NNWS and excludes complementary access 
provisions and wide-area environmental sampling?

    Answer. States that are not required by the Non-Proliferation 
Treaty (NPT) to accept full-scope IAEA safeguards are under no 
obligation to accept the Model Additional Protocol as written. Rather, 
they were formally urged by the IAEA Board of Governors to adopt 
elements of the Model Protocol that would contribute to the 
strengthening of the safeguards system. In support of efforts to gain 
broad adherence to the Additional Protocol, all five NPT nuclear weapon 
states pledged to do so.
    The United States pledged to accept all measures in the Model 
Protocol, subject to a National Security Exclusion, continuing the 
long-standing U.S. policy of making U.S. civil nuclear activities 
available for the same IAEA inspections as are applied in non-nuclear-
weapon states. This pledge was judged necessary to bring about a 
successful conclusion to the negotiation of a Model Additional Protocol 
that includes the measures the United States considered essential for 
strengthening the IAEA safeguards system. Just as they did during the 
negotiation of the IAEA's existing safeguards system for non-nuclear-
weapon states, important non-nuclear weapon states expressed 
considerable concern during the negotiation of the Model Additional 
Protocol that some of the measures proposed would place their nuclear 
industries at a commercial disadvantage. The U.S. pledge to accept the 
same measures assuaged these concerns and made agreement possible, and 
has been relied on by a number of states, including close allies, in 
persuading their legislatures to approve their Additional Protocols.
    The Chinese and Russian Protocols are substantially less 
forthcoming than the U.S. Protocol. Those countries, however, were not 
seeking to lead the negotiations, and hence made no such broad pledge. 
They remained free to choose which of the obligations in the Protocol 
they consider will contribute to nonproliferation goals when applied in 
their states. Their approach focuses on providing information related 
to NNWS nuclear activities.

    Question 46. Why did the United Kingdom and France also insist upon 
providing information to the Agency on only those nuclear activities 
related to a NNWS (but agreeing to complementary access and, in the 
case of the United Kingdom, wide-area environmental sampling)? To what 
extent are the United Kingdom and France subject to additional 
international scrutiny as members of EURATOM?

    Answer. Although the UK and French Protocols appear less 
forthcoming than the U.S. Protocol, other European NNWS seeking 
``parity'' took into account the fact that UK and French civil 
facilities are under safeguards inspections by EURATOM, and in some 
cases by the IAEA. The UK and French Protocols, while accepting the 
Additional Protocol measures on only commercial locations, do not 
contain a national security exclusion. Because most commercial 
activities in these countries involve interactions with the NNWS in the 
European Community, these declarations are expected to cover most 
nuclear fuel cycle-related commercial locations in these countries. 
(U.S. facilities, in contrast, are eligible for IAEA safeguards, but 
those are presently applied only at U.S. request.) They were therefore 
willing to accept greater deviations from the Model Protocol than in 
the case of the United States.

    Question 47. Did the United States consider a similar approach to 
that of Russia and China in their Additional Protocols with the IAEA 
and, if so, why was it not adopted?

    Answer. No. During the negotiations of the Model Protocol, many 
non-nuclear weapon states parties to the NPT urged the United States, 
as the strongest proponent, to accept on a voluntary basis the 
provisions of the Model Protocol. Following the example of the 
Voluntary Offer, the United States stated during the negotiations that 
it would accept the provisions of the Model Protocol, subject to a 
National Security Exclusion. The United States took a leading role in 
the negotiation of the Model Protocol, and the success in achieving a 
strong Model Protocol was critically dependent on voluntary acceptance 
of Model Protocol measures by the United States. The U.S. signature of 
the Additional Protocol was a significant factor in the early decision 
by many non-nuclear-weapon states to accept the Protocol.

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