[Senate Report 109-226]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 385
109th Congress                                                   Report
                                 SENATE
 2d Session                                                     109-226

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



 
              U.S. ADDITIONAL PROTOCOL IMPLEMENTATION ACT

                                _______
                                

                 April 3, 2006.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2489]

    The Committee on Foreign Relations, having had under 
consideration an original bill to implement the obligations of 
the United States under the Protocol Additional to the 
Agreement Between the United States of America and the 
International Atomic Energy Agency for the Application of 
Safeguards in the United States of America, with annexes, 
signed at Vienna June 12, 1998, reports favorably thereon and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Committee Action.................................................4
III. Summary..........................................................4
 IV. Cost Estimate of the CBO........................................11
  V. Regulatory Impact...............................................12
 VI. Appendix--Declassified Answers to Questions for the Record......13

                               I. Purpose

    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'') supplements and amends 
the verification arrangements set forth in 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 of November 18, 1977 (the ``Voluntary 
Offer''), which entered into force, following Senate advice and 
consent, on December 9, 1980. The United States already allows 
safeguards to be placed on certain facilities and materials 
under the Voluntary Offer, an outgrowth of its strong support 
for the Treaty on the Non-Proliferation of Nuclear Weapons (the 
``Nuclear Nonproliferation Treaty'' or ``NPT''), which mandated 
safeguards on each non-nuclear-weapon state's declared peaceful 
nuclear energy facilities.
    The Senate gave its advice and consent to ratification of 
the Additional Protocol on March 31, 2004. The United States 
has no obligation to accept safeguards on its nuclear materials 
and sites as a nuclear-weapon state under Article I of the NPT. 
Likewise, it is not bound to accept an Additional Protocol. 
Yet, as in the case of the Voluntary Offer, the United States 
negotiated and signed an Additional Protocol with the IAEA, 
which incorporates the full text of the Model Additional 
Protocol that non-nuclear weapon states under Article II of the 
NPT are being asked to sign, ratify and implement.\1\ This 
underscores the U.S. commitment to combating the spread of 
nuclear weapons and demonstrates that adherence to the Model 
Additional Protocol will not place non-nuclear-weapon states at 
any commercial disadvantage. The United States is the only 
nuclear-weapon state to accept the entire Model Additional 
Protocol; however, the U.S. Additional Protocol allows the 
United States to exclude activities or locations of direct 
national security significance in the United States (in Article 
1.b of the U.S. Additional Protocol) and gives it a right to 
use managed access to protect information of direct national 
security significance should inspections be carried out in the 
United States (in Article 1.c). The Voluntary Offer also 
contains a national security exclusion.
---------------------------------------------------------------------------
    \1\ INFCIRC/540, available at http://www.iaea.org/Publications/
Documents/Infcircs/1997/infcirc
540.pdf.
---------------------------------------------------------------------------
    The Model Additional Protocol was designed to improve the 
ability of the IAEA to detect clandestine nuclear weapons 
programs in non-nuclear-weapon states by providing the IAEA 
with increased information about and expanded access to nuclear 
fuel-cycle activities and sites. As of March 2006, 75 countries 
have additional protocols in force.2 U.S. 
ratification and implementation of the Additional Protocol is 
intended to demonstrate to non-nuclear-weapon states that the 
Additional Protocol will not adversely affect legitimate, 
transparent and peaceful nuclear energy development and thus 
could reduce the risk of nuclear proliferation and improve 
international confidence that non-nuclear-weapon states that 
are parties to the NPT are not misusing nuclear materials to 
develop nuclear weapons.
---------------------------------------------------------------------------
    \2\ http://www.iaea.org/OurWork/SV/Safeguards/sir_table.html.
---------------------------------------------------------------------------
    The Additional Protocol contains a number of provisions 
that require legislation to give them effect within the United 
States. Enactment of the Additional Protocol's implementing 
legislation would provide the Executive branch with authority 
to promulgate regulations that permit IAEA inspectors, 
accompanied by U.S. representatives, access to certain 
locations, facilities, activities, sites and information on 
activities in the United States. Until both the implementing 
legislation and the regulations are in force, the United States 
will not ratify the Additional Protocol, despite its having 
received the Senate's advice and consent to ratification in 
2004. That is because it is general U.S. treaty practice to not 
formally ratify a treaty until the United States is in a 
position to fulfill the treaty obligations. The implementing 
legislation will also establish civil and criminal penalties 
for the failure of U.S. entities identified in Article 2 of the 
Additional Protocol to keep or provide such information under 
record-keeping requirements promulgated by U.S. agency 
regulations.
    The existing U.S. declaration to the IAEA under the 
Voluntary Offer will need to be supplemented by additional 
information, to include:

   U.S. fuel-cycle research and development activities;

   Mining, processing and stockpiling of uranium ore, 
        uranium ore concentrate and other nuclear fuel 
        materials;

   Some nuclear materials currently exempt from the 
        Voluntary Offer;

   Intermediate and high-level nuclear wastes;

   Manufacturing of certain materials and equipment;

   The import and export of specified materials and 
        equipment;

   Applicable site and facility information; and,

   Agreed upon safeguards-related information.

    Once the Additional Protocol enters into force, the United 
States will be required to provide to the IAEA a declaration of 
nuclear fuel cycle-related activities and, if necessary, to 
provide complementary access to the IAEA to allow that agency 
to verify the completeness of the U.S. declaration. The 
implementing legislation also sets forth procedures for 
inspections by the IAEA at U.S. locations under the Additional 
Protocol; these are patterned on the procedures mandated by 
Congress in 1998 for U.S. implementation of the Chemical 
Weapons Convention. The legislation also establishes civil and 
criminal penalties for willfully impeding a complementary 
access authorized by this Act. Additionally, implementing 
legislation is necessary in order for the Nuclear Regulatory 
Commission (NRC) to conduct training and trial inspections at 
its licensed commercial facilities.
    Under the current U.S. safeguards agreement, the IAEA 
already has the right to inspect certain facilities that the 
United States has declared to it and are maintained on the U.S. 
Eligible Facilities List. Under the terms of the Voluntary 
Offer, the United States provides the IAEA with a list of 
eligible facilities (about 250) that do not have direct 
national security significance. These include facilities 
licensed by the NRC and some license-exempt facilities of the 
Department of Energy. Such inspection activities, have, since 
1993, been ``conducted at the request of the United States in 
order to safeguard fissile material declared excess to our 
defense needs.'' \3\ 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. The Additional Protocol will not likely result 
in additional inspections in the United States, but the United 
States must prepare for that possibility and ensure protections 
for itself if the IAEA were to conduct such inspections.
---------------------------------------------------------------------------
    \3\ Committee on Foreign Relations, Report on Additional Protocol, 
S. Exec. Rpt. 108-12 (2004), p. 111, hereinafter ``Report.''
---------------------------------------------------------------------------
    The committee's implementing legislation takes into account 
the need to protect U.S. national security and to abide by the 
U.S. Constitution. In its consideration of Additional Protocol 
implementation, the committee has also been guided by the 
desire to maintain U.S. leadership in the global implementation 
of IAEA safeguards. 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 legislation to implement the 
Additional Protocol.

                          II. 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 former 
Director of the Arms Control and Disarmament Agency; and 
Ambassador Norman A. Wulf, former Special Representative of the 
President for Nuclear Non-proliferation.
    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.
    On March 26, 2004, the committee reported favorably its 
resolution of advice and consent to the full Senate. On March 
31, 2004, the Senate gave its advice and consent to 
ratification of the Additional Protocol by division vote.
    On December 9, 2003, Chairman Lugar introduced S. 1987, the 
Additional Protocol to the U.S.-IAEA Safeguards Agreement 
Implementation Act, which was referred to the committee. S. 
1987 was drafted by the administration and introduced at its 
request.
    Since then, committee staff engaged with executive branch 
agencies and other Senate committees to craft the implementing 
legislation the committee now reports to the Senate.
    At a business meeting on March 14, 2006, by a voice vote, 
the committee ordered the bill reported.

                              III. Summary

    The U.S. Additional Protocol Implementation Act (``the 
Act'') consists of six titles that provide authority to 
implement the Additional Protocol, provide an appropriate 
process for implementation of IAEA complementary access, ensure 
protection of U.S. national security and business information, 
and authorize appropriations to carry out the agreement.
    In evaluating the implementing legislation for the 
Additional Protocol, the committee paid particular attention to 
past legislation adopted by Congress to implement the Chemical 
Weapons Convention (CWC) in the CWC Implementation Act of 1998. 
4 Where and when they were appropriate or 
applicable, the committee included like provisions in its 
Additional Protocol implementing legislation.
---------------------------------------------------------------------------
    \4\ Chemical Weapons Convention Implementation Act of 1998, 22 USC 
6701 note, Division I of Public Law 105-277.
---------------------------------------------------------------------------
    Sections 1, 2 and 3 of the bill set forth the short title, 
provide definitions and a severability provision. The 
severability provision states that if any provision of the Act 
is held invalid, the remainder of the Act shall remain in 
force. The committee believes that the Additional Protocol and 
the Act are fully consistent with the U.S. Constitution, but 
has included this section as a matter of prudence.
    Title I provides specific authority for the President to 
implement and carry out the Act and the Additional Protocol 
through directing the issuance of necessary regulations 
(principally by the NRC and the Department of Commerce (DOC)). 
Title II authorizes complementary access at U.S. locations 
consistent with the Act, and establishes the terms upon which 
such access may take place. Title III restricts disclosure 
under the Freedom of Information Act of information acquired 
pursuant to the Act or the Additional Protocol. Title IV makes 
it illegal for entities willfully to fail to report information 
required by regulations pursuant to the Act and provides for 
criminal and civil penalties for violations. Title V sets forth 
congressional notification and presidential determination 
requirements regarding environmental sampling. Finally, Title 
VI authorizes the appropriation of funds to carry out the Act.

                      TITLE I--GENERAL PROVISIONS

    Title I authorizes the President to implement and carry out 
the provisions of the Act and the Additional Protocol. This is 
to be accomplished through an Executive order designating 
Agencies to promulgate regulations requiring, inter alia, 
submission to the United States Government of information 
specified under Article 2 of the Additional Protocol. This 
information is necessary for the United States to fulfill its 
obligation to provide the IAEA with a declaration of its civil 
nuclear and nuclear-related activities.

                     TITLE II--COMPLEMENTARY ACCESS

    Title II sets forth the terms under which complementary 
access may occur in the United States. Section 201 of the Act 
states that the IAEA may not conduct complementary access in 
the United States without the authorization, in accordance with 
the Act, of the U. S. Government. It further directs that the 
Environmental Protection Agency, the Occupational Safety and 
Health Administration, and the Mine Safety and Health 
Administration may not participate in complementary access. 
These agencies are excluded because their employees may detect 
violations of laws and regulations unrelated to the Additional 
Protocol. Section 201 further requires the number of U.S. 
representatives accompanying any IAEA inspectors to be kept to 
a minimum. Section 202 addresses procedures for complementary 
access. Section 202(b) sets forth the requirement for the 
United States Government to provide actual written notice of a 
complementary access request, as soon as possible, to the 
owner, operator, occupant or agent in charge of the location to 
be inspected. The notice must contain the purpose of the access 
request, the basis for selection of the location, the 
activities that will be carried out, the time and duration of 
the access, and the identities of the inspectors. Section 
202(b)(4) requires a separate notice each time that 
complementary access is sought. Section 202(c) requires IAEA 
and U.S. personnel participating in the complementary access to 
show their credentials prior to gaining entry to the inspected 
location.
    Section 202(d)(1) states that IAEA inspectors, during 
complementary access, may generally conduct activities 
specified under Article 6 of the Additional Protocol for the 
types of locations being inspected. There are several 
exceptions. First section 202(d)(1) recognizes that the United 
States Government has certain rights under the Additional 
Protocol to limit such access. In addition to its right under 
Article 1.b of the Protocol to deny the IAEA access to 
activities with direct national security significance or to 
locations or information associated with such activities, the 
United States may, under Article 1.c of the Protocol, manage 
access in connection with such activities, locations or 
information. These rights are unilateral and absolute; they are 
not subject to challenge by or negotiation with the IAEA. 
Furthermore, Article 7 of the Additional Protocol provides for 
managed access to other locations, under arrangements with the 
IAEA, to prevent the dissemination of proliferation sensitive 
information, to meet safety or physical protection 
requirements, or to protect proprietary or commercially 
sensitive information. Second, Section 202(d)(2) lists a series 
of items that are specifically excluded, from IAEA access. 
These exceptions, which are directed mainly at protecting 
business information, may not be enforced, however, if the 
Additional Protocol requires such disclosure. Section 202(e) 
requires that all persons participating in complementary 
access, including U.S. representatives, observe all 
environmental, health, safety and security regulations 
applicable for the inspected location.
    Section 203 provides the legal framework for IAEA 
inspectors to gain complementary access to U.S. locations under 
the Additional Protocol. Section 203(a) sets forth three 
procedures for gaining such access: in cases in which the 
consent of the owner, operator, occupant or agent in charge of 
the locations to be inspected under complementary access has 
been obtained; in cases in which such consent is not obtained 
and where an administrative search warrant would then be 
required; and in cases in which expedited access is required.
    The Additional Protocol provides for IAEA complementary 
access to a U.S.-declared location in the United States in some 
cases if the IAEA requests so with advance notice of less than 
two hours in ``exceptional circumstances'' (Article 4.b (ii)). 
The committee has included an expedited access procedure in 
Section 203(a)(2) that makes clear that in such circumstances 
no warrant or consent would be required to gain entry, ``to the 
extent such access is consistent with the Fourth Amendment.''
    The remainder of Section 203 addresses the requirements for 
obtaining an administrative search warrant and what such a 
warrant must contain. Section 203(b)(1) states that the United 
States Government shall provide to a judge of the United States 
(defined in section 2(7) of the Act as a United States district 
judge, or a United States magistrate judge appointed under the 
authority of chapter 43 of title 28, United States Code) all 
appropriate information regarding the basis for selecting a 
particular location for complementary access. Section 203(b)(2) 
requires the United States to submit to the judge an affidavit 
in obtaining administrative search warrants stating, among 
other things, that the Additional Protocol is in force in the 
United States, the Protocol's applicability to the location to 
be inspected, and that the complementary access requested is 
consistent with the provisions of the Additional Protocol, 
including Article 4 regarding the purpose of the access and 
Article 6 regarding its scope. The affidavit must also 
indicate: ``the items, documents, and areas to be searched and 
seized''; the anticipated time and duration of the inspection; 
and either that the location to which entry in connection with 
complementary access is sought was selected because of probable 
cause that information was not correctly and fully reported as 
required pursuant to regulations promulgated under the Act, and 
that the location to be inspected contains evidence of such 
violation, or that the location was selected pursuant to a 
reasonable general administrative plan based on specific 
neutral criteria.
    Section 204 makes it unlawful for any person willfully to 
fail or refuse to permit, or to disrupt, delay, or otherwise 
impede, a complementary access authorized by this Act or an 
entry in connection with such access. The committee views this 
provision as a logical corollary to the rest of this Title, 
which creates clear obligations that the U.S. Government must 
satisfy before a complementary access may proceed. A similar 
offense was created by the CWC Implementation Act.

               TITLE III--CONFIDENTIALITY OF INFORMATION

    Title III of the implementing legislation exempts from the 
Freedom of Information Act (FOIA) disclosure of information 
obtained by the United States Government in implementing the 
provisions of the Additional Protocol. Thus, information 
reported to the U.S. Government by entities covered by Article 
2 of the Additional Protocol, as required by regulation, is not 
subject to release under the FOIA.

                         TITLE IV--ENFORCEMENT

    Section 401 of the proposed Act prohibits the willful 
failure or refusal of any person to maintain records or submit 
reports to the United States Government as required by 
regulations issued under Title I of the Act, or to permit 
access to or copying of such records by the United States 
Government.
    Section 402(a) provides for civil penalties that may be 
assessed in the event of violations of section 204 or section 
401 of the Act. The procedure established by section 402 for 
assessing a civil penalty includes: notice by an authorized 
executive agency to the person being penalized; a hearing 
before an administrative judge, if requested within 15 days 
after receiving the notice; factors to be taken into account in 
assessing penalties; review by a U.S. Court of Appeals, if 
requested within 30 days after a final order is issued; and, if 
necessary, civil action in a district court to enforce a final 
order. In any such civil action, the validity and 
appropriateness of the final order shall not be subject to 
review. Civil penalties shall not exceed $25,000 for each 
violation. Each day during which a violation of section 204 
continues shall constitute a separate violation of that 
statute.
    Section 402(b) provides that in addition to, or in lieu of, 
civil penalties under section 402(a), a person who violates 
section 204 or section 401 of the Act may be fined under title 
18, United States Code, imprisoned for not more than five 
years, or both.
    The prohibitions of Title IV are necessary to implement the 
Additional Protocol, as the United States is dependent on the 
reporting it receives and on the cooperation of facility owners 
or operators to meet its treaty obligations.

                    TITLE V--ENVIRONMENTAL SAMPLING

    In its work on the Additional Protocol and its implementing 
legislation, the committee has devoted particular attention to 
the issue of environmental sampling, both location-specific and 
wide-area, under the complementary access provisions of the 
Additional Protocol. The committee asked a number of questions, 
both as a part of its formal record of decision on the 
Additional Protocol and in meetings with executive branch 
officials, regarding the use of this sampling technique as a 
safeguards verification tool. The administration's unclassified 
answers to the committee's questions for the record, originally 
provided during consideration of the Additional Protocol itself 
and published in Executive Report 108-12, were later 
supplemented by declassified answers to four questions, which 
are reproduced later in this report.
    The committee noted in its report on the Additional 
Protocol that were any potential national security concerns to 
arise with regard to the use of environmental sampling in the 
United States, the national security exclusion would apply. 
This view was supported by the letter sent on April 30, 2002, 
by then-U.S. Ambassador to the IAEA Kenneth C. Brill to the 
Director General of the IAEA, in which the United States stated 
its interpretation of certain provisions in the Additional 
Protocol. This letter was incorporated by reference as 
Understanding (1) of the Senate-approved resolution of 
ratification. Committee staff also confirmed with the IAEA that 
it does not dispute with the United States any of the 
interpretations set forth in the Brill letter.
    There are two types of environmental sampling under the 
Additional Protocol, location-specific and wide-area. Article 6 
of the Protocol authorizes the Agency to carry out collection 
of location-specific environmental samples in any complementary 
access. Article 5 of the Protocol specifies the locations to 
which the IAEA may have access in the United States, subject to 
the managed access provision and the national security 
exclusion of Article 1 or the managed access provisions of 
Article 7, and the purposes for such access.
    In answer to a committee question for the record, the 
administration summarized the relevance of location-specific 
environmental sampling to IAEA inspections:

          The IAEA conducts environmental sampling, inter alia, 
        to characterize the composition of material found in 
        the environment at a location. This measure is employed 
        to detect the presence of undeclared nuclear activities 
        at a location. This data provides information on the 
        history of nuclear material processing activities at 
        the location or of materials that have been received or 
        otherwise deposited at the location. \5\
---------------------------------------------------------------------------
    \5\ See Appendix, p.14.

    IAEA inspections in North Korea and Iran have made notable 
use of location-specific environmental sampling (more commonly 
known as ``swipes'') to determine whether country declarations 
regarding nuclear activities (including possible uranium 
enrichment or spent fuel reprocessing) were accurate. The very 
qualities that make such sampling useful in a non-nuclear-
weapons state may present a dilemma, however, for a recognized 
nuclear-weapons state under the NPT. As the administration went 
---------------------------------------------------------------------------
on to explain:

          Environmental sampling provides information about the 
        material present at a given location from current and 
        past operations, including the materials' isotopic 
        ratios. It also can be used to determine whether, and 
        to a certain extent how, a facility is processing or 
        enriching uranium, or producing/separating plutonium, 
        other actinides or tritium, or other materials. 
        Furthermore, to varying degrees depending upon the type 
        of sample material, it can be used to determine the 
        approximate date of these activities. If used at 
        locations where relevant environmental signatures are 
        present, it could reveal information of direct national 
        security significance to the United States. It is also 
        essential to the success of the IAEA in its safeguards 
        mission that it is able to detect and discover 
        undeclared activity using such methods in non-nuclear 
        weapon states.\6\
---------------------------------------------------------------------------
    \6\ Ibid.

    Under the national security exclusion in Article 1 of the 
Protocol, the United States has the right to exclude from the 
Article 2 declarations any 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. Complementary 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 under 
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.
    Under Article 9 of the Additional Protocol, 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 therefore 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 in this country.
    With regard to environmental sampling, the Brill letter 
stated:

          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. \7\
---------------------------------------------------------------------------
    \7\ Report, p. 24.

    The IAEA Board of Governors has not taken a decision to 
approve the use of wide-area environmental sampling techniques 
for use in its verification activities, and may not do so for 
quite some time, if ever, because the technology associated 
with such sampling has not yet fully developed for use in an 
accurate and cost-effective manner in those activities. It is 
highly unlikely, moreover, that sampling of this kind would be 
used in the United States to detect undeclared nuclear 
activities. The IAEA does not have the resources to conduct 
such activities in the United States in connection with its 
Additional Protocol and, in any case, since the United States 
is a lawful nuclear weapon state, would not need to do so. 
Nevertheless, the United States has accepted all of the text of 
the Additional Protocol, with the only addition being its 
national security rights in Article 1. Fundamentally then, the 
committee is faced with the need to balance U.S. national 
security concerns with its leadership and support for the best 
IAEA verification techniques possible in non-nuclear weapon 
states by demonstrating its willingness, under appropriate 
measures, to incorporate environmental sampling into the U.S. 
compliance regime under the Additional Protocol.
    The committee doubts that the IAEA will ever have reason to 
use environmental sampling, either location-specific or wide-
area sampling, to verify U.S. compliance with its Additional 
Protocol. The committee notes that the Brill letter states a 
definitive U.S. position on the use of the national security 
exclusion in connection with location-specific environmental 
sampling, and the committee supports that position.
    The Brill letter does not state a definitive U.S. position 
regarding wide-area sampling. Indeed, the United States has 
conducted environmental sampling and provided the IAEA with 
information regarding testing of such sampling in cooperation 
with the Department of Energy and the National Laboratories for 
the important purpose of providing assistance to the IAEA to 
enhance its verification activities and safeguards 
technologies. In answer to a committee question for the record, 
the administration noted that ``wide-area environmental 
sampling was tested by the United States in advance of it being 
proposed as a measure for use by the IAEA.'' \8\ Activities 
that support the IAEA, such as cooperation with the National 
Laboratories, are distinctly different from actual use of the 
same technologies in the United States by the IAEA for 
safeguards verification under the Additional Protocol.
---------------------------------------------------------------------------
    \8\ See Appendix, p. 15.
---------------------------------------------------------------------------
    Title V of the committee's implementing legislation is 
drafted to meet the requirements of U.S. national security, 
Congressional oversight, and U.S. leadership on 
nonproliferation. It does not prevent the use of wide-area or 
other environmental sampling, but would provide a statutory 
procedure involving Congress.
    Section 501 creates a reporting requirement that not later 
than 30 days after the IAEA Board of Governors approves wide-
area sampling for use as a safeguards tool the President shall 
notify the appropriate congressional committees of that 
decision. While it is likely that the committee would know in 
any case of such a decision, the committee intends, as required 
by subsection 501(b), that the notification from the President 
would include a detailed discussion of the measures approved by 
the Board of Governors and whether they may be used in the 
United States.
    Sections 502 and 503 require reporting and certain 
certifications to Congress prior to the use in the United 
States of wide-area or location-specific environmental 
sampling. Nothing in these sections prevents compliance with a 
U.S. obligation. The committee was informed during its 
consideration of the Additional Protocol itself that a National 
Security Presidential Directive would be issued to guide use of 
the national security exclusion in connection with the 
Additional Protocol. Noting the importance of Congressional 
involvement in such decisions, the committee included sections 
502 and 503 for the unlikely circumstance in which the 
President did not apply the exclusion to environmental 
sampling. The committee does not intend that this Title should 
encourage the use of such sampling in the United States or 
discourage the use of the national security exclusion, as 
appropriate, to deny the IAEA such access.

          IV. Cost Estimate of the Congressional Budget Office

    Rule XXVI, paragraph 11(a) of the Standing Rules of the 
Senate requires that committee reports on bills or joint 
resolutions contain a cost estimate for such legislation in the 
fiscal year it is reported and in each of the following 5 
years; however, the CBO estimate was not available at the time 
of publication of this report. The Chairman will seek consent 
to insert it into the Congressional Record when it is provided 
to the committee.

                          V. Regulatory Impact

    During its consideration of advice and consent to the 
ratification of the Additional Protocol itself, and in 
compliance with paragraph 11(b) of Rule XXVI of the Standing 
Rules of the Senate, the committee inquired of the executive 
branch regarding what regulatory changes were envisioned for 
the Additional Protocol. The administration responded that:

          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.\9\
---------------------------------------------------------------------------
    \9\ Report, p. 113.


                            A P P E N D I X

                              ----------                              


                        DECLASSIFIED ANSWERS TO
                        QUESTIONS FOR THE RECORD

                 United States Department of State,
                                    Washington, D.C. 20520,
                                                 September 7, 2004.

Hon. Richard G. Lugar, Chairman,
Committee on Foreign Relations,
U.S. Senate.

    Dear Mr. Chairman. In response to a request from a member 
of your committee's staff, we are enclosing a copy of 
unclassified administration responses to several of the 
committee's questions for the record regarding the U.S.-IAEA 
Additional Protocol. Classified answers to the same questions 
were provided to the committee in February 2004. Please allow 
the Department of State to take this opportunity to express 
appreciation for the Senate's prompt and favorable 
consideration of the Protocol.

    Please let us know if we can be of further assistance.

            Sincerely,
                                             Paul V. Kelly,
                            Assistant Secretary Legislative Affairs

Enclosure:
    As stated.
                              ----------                              

Unclassified Answers to QFRs 15-18, Dealing With Environmental Sampling

    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 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 (15). The IAEA conducts environmental sampling, 
inter alia, to characterize the composition of material found 
in the environment at a location. This measure is employed to 
detect the presence of undeclared nuclear activities at a 
location. This data provides information on the history of 
nuclear material processing activities at the location or of 
materials that have been received or otherwise deposited at the 
location.
    Environmental sampling provides information about the 
material present at a given location from current and past 
operations, including the materials' isotopic ratios. It also 
can be used to determine whether, and to a certain extent how, 
a facility is processing or enriching uranium, or producing/
separating plutonium, other actinides or tritium, or other 
materials. Furthermore, to varying degrees depending upon the 
type of sample material, it can be used to determine the 
approximate date of these activities. If used at locations 
where relevant environmental signatures are present, it could 
reveal information of direct national security significance to 
the United States. It is also essential to the success of the 
IAEA in its safeguards mission that it is able to detect and 
discover undeclared activity using such methods in non-nuclear 
weapon states.
    In accordance with Article I, the United States will 
prohibit environmental sampling or any other activity by the 
IAEA wherever necessary. A U.S. decision to invoke the National 
Security Exclusion is not subject to challenge by the IAEA, nor 
need the U.S. provide the Agency any explanation for its 
decision. The administration has already informed the IAEA that 
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. Environmental 
sampling may also be excluded at other locations in accordance 
with the terms of the National Security Exclusion. In addition, 
at locations not covered by the National Security Exclusion, 
the U.S. may invoke the managed access provisions of Article 7 
of the Additional Protocol to offer alternatives to the use of 
environmental sampling. Such alternatives may be offered 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.

    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 (16). 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 therefore 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 (17). The United States strongly supported including 
wide-area environmental sampling as a potential measure under 
the Protocol because wide-area sampling, if it becomes 
practical, has the potential to detect undeclared nuclear 
activities throughout a state. However, while wide-area 
environmental sampling was tested by the United States in 
advance of it being proposed as a measure for use by the IAEA, 
the technique has not yet been demonstrated to be technically 
feasible or cost-effective as a safeguards measure. Neither the 
IAEA nor the Board of Governors has established a timeline for 
taking a decision in favor of using wide-area environmental 
sampling as a safeguards measure under the Additional Protocol. 
The United States has not pressed for either the Agency or the 
Board of Governors to take such a decision.
    This situation is unlikely to change unless and until 
sampling and analysis technology improve significantly. If 
technical improvements and falling costs eventually make wide-
area environmental sampling a useful safeguards measure, the 
Board of Governors will likely consider approving the 
technique. The United States will decide at that time whether 
to support the use of the measure, based on its ability to 
contribute to the effectiveness of safeguards. 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.
    The United States legitimately possesses undeclared nuclear 
activities, many with publicly acknowledged locations, and 
there is no nonproliferation purpose served by searching for 
undeclared activities within the United States. Furthermore, 
the United States has obligations both under its own laws and 
regulations and in the first article of the Non-Proliferation 
Treaty to prohibit the release of nuclear weapons information.
    The national security exclusion included in Article 1.b and 
1.c of the Additional Protocol is sufficient to allow us to 
prevent disclosure of activities and information of direct 
national security significance to the United States.

    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 (18). There are no formal or informal understandings 
with the IAEA with regard to the use of wide-area environmental 
sampling in the United States. Because wide-area environmental 
sampling is not yet a practical technology for safeguards 
applications, the technologies that might be used by the IAEA 
and their capabilities are not defined.
    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 National Security Exclusion, the United States will 
prohibit environmental sampling by the IAEA wherever necessary.

