[DOCID: f:er012.108]
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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.'' <SUP>1</SUP> 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. <SUP>2</SUP>
---------------------------------------------------------------------------
    \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. <SUP>3</SUP>
---------------------------------------------------------------------------
    \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.'' <SUP>4</SUP> 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.'' <SUP>5</SUP> 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.'' 
<SUP>6</SUP>
---------------------------------------------------------------------------
    \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. <SUP>7</SUP> 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. 
        <SUP>8</SUP>
---------------------------------------------------------------------------
    \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.'' <SUP>9</SUP>
---------------------------------------------------------------------------
    \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. <SUP>10</SUP>
---------------------------------------------------------------------------
    \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. 
        <SUP>11</SUP>
---------------------------------------------------------------------------
    \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.'' 
<SUP>12</SUP> 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.'' <SUP>13</SUP>
---------------------------------------------------------------------------
    \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'' <SUP>14</SUP> 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.'' <SUP>15</SUP> 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.'' 
<SUP>17</SUP>
---------------------------------------------------------------------------
    \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. <SUP>20</SUP>
---------------------------------------------------------------------------
    \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.'' <SUP>21</SUP> 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.'' <SUP>22</SUP>
---------------------------------------------------------------------------
    \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. <SUP>23</SUP>
---------------------------------------------------------------------------
    \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. <SUP>24</SUP>
---------------------------------------------------------------------------
    \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. 
        <SUP>25</SUP>
---------------------------------------------------------------------------
    \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,'' 
<SUP>26</SUP> 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. <SUP>27</SUP>
---------------------------------------------------------------------------
    \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.'' <SUP>28</SUP>
---------------------------------------------------------------------------
    \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'' <SUP>29</SUP> 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. <SUP>30</SUP>
---------------------------------------------------------------------------
    \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.'' <SUP>31</SUP> 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. <SUP>33</SUP>
---------------------------------------------------------------------------
    \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. 
        <SUP>34</SUP>
---------------------------------------------------------------------------
    \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.'' <SUP>35</SUP>
---------------------------------------------------------------------------
    \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) <SUP>36</SUP> 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. <SUP>37</SUP>
---------------------------------------------------------------------------
    \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. 
        <SUP>40</SUP>
---------------------------------------------------------------------------
    \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.'' 
<SUP>41</SUP>
---------------------------------------------------------------------------
    \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. <SUP>42</SUP>
---------------------------------------------------------------------------
    \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. 
<SUP>43</SUP> 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.'' <SUP>44</SUP>
---------------------------------------------------------------------------
    \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. <SUP>45</SUP> 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. <SUP>46</SUP>
---------------------------------------------------------------------------
    \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. <SUP>47</SUP>
---------------------------------------------------------------------------
    \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. 
        <SUP>48</SUP>
---------------------------------------------------------------------------
    \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.'' <SUP>49</SUP>
---------------------------------------------------------------------------
    \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. <SUP>50</SUP> 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.
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     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 ac