II
Calendar No. 385
109th CONGRESS
2d Session
S. 2489
[Report No. 109–226]
IN THE SENATE OF THE UNITED STATES
April 3, 2006
Mr. Lugar, from the Committee on Foreign Relations, reported the following original bill; which was read twice and placed on the calendar
A BILL
To implement the obligations of the United States under the Protocol Additional to the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America, signed by the United States on June 12, 1998.
Short title
This Act may be cited as the
U.S. Additional Protocol
Implementation Act
.
Definitions
In this Act:
Additional protocol
The term Additional Protocol, when used in the singular form, means the Protocol Additional to the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America, with Annexes, signed at Vienna June 12, 1998 (T. Doc. 107–7).
Appropriate congressional committees
The term appropriate congressional committees means the Committee on Armed Services, the Committee on Foreign Relations, and the Committee on Appropriations of the Senate and the Committee on Armed Services, the Committee on International Relations, and the Committee on Appropriations of the House of Representatives.
Complementary access
The term complementary access means the exercise of the IAEA’s access rights as set forth in Articles 4 to 6 of the Additional Protocol.
Executive agency
The term executive agency has the meaning given such term in section 105 of title 5, United States Code.
Facility
The term facility has the meaning set forth in Article 18i. of the Additional Protocol.
IAEA
The term IAEA means the International Atomic Energy Agency.
Judge of the united states
The term judge of the United States means a United States district judge, or a United States magistrate judge appointed under the authority of chapter 43 of title 28, United States Code.
Location
The term location means any geographic point or area declared or identified by the United States or specified by the International Atomic Energy Agency.
Nuclear non-proliferation treaty
The term Nuclear Non-Proliferation Treaty means the Treaty on the Non-Proliferation of Nuclear Weapons, done at Washington, London, and Moscow July 1, 1968, and entered into force March 5, 1970 (21 UST 483).
Nuclear-weapon state party and non-nuclear-weapon state party
The terms nuclear-weapon State Party and non-nuclear-weapon State Party have the meanings given such terms in the Nuclear Non-Proliferation Treaty.
Person
The term person, except as otherwise provided, means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any agency, instrumentality or political subdivision of any such government or nation, or other entity located in the United States.
Site
The term site has the meaning set forth in Article 18b. of the Additional Protocol.
United states
The term United States, when used as a geographic reference, means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States and includes all places under the jurisdiction or control of the United States, including—
the territorial sea and the overlying airspace;
any civil aircraft of the United States or public aircraft, as such terms are defined in paragraphs (17) and (41), respectively, of section 40102(a) of title 49, United States Code; and
any vessel of the United States, as such term is defined in section 3(b) of the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1903(b)).
Wide-area environmental sampling
The term wide-area environmental sampling has the meaning set forth in Article 18g. of the Additional Protocol.
Severability
If any provision of this Act, or the application of such provision to any person or circumstance, is held invalid, the remainder of this Act, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.
GENERAL PROVISIONS
Authority
In General
The President is authorized to implement and carry out the provisions of this Act and the Additional Protocol and shall designate through Executive order which executive agency or agencies of the United States, which may include but are not limited to the Department of State, the Department of Defense, the Department of Justice, the Department of Commerce, the Department of Energy, and the Nuclear Regulatory Commission, shall issue or amend and enforce regulations in order to implement this Act and the provisions of the Additional Protocol.
Included Authority
For any executive agency designated under subsection (a) that does not currently possess the authority to conduct site vulnerability assessments and related activities, the authority provided in subsection (a) includes such authority.
Exception
The authority described in subsection (b) does not supersede or otherwise modify any existing authority of any Federal department or agency already having such authority.
COMPLEMENTARY ACCESS
Requirement for authority to conduct complementary access
Prohibition
No complementary access to any location in the United States shall take place pursuant to the Additional Protocol without the authorization of the United States Government in accordance with the requirements of this Act.
Authority
In general
Complementary access to any location in the United States subject to access under the Additional Protocol is authorized in accordance with this Act.
United states representatives
Restrictions
In the event of complementary access to a privately owned or operated location, no employee of the Environmental Protection Agency or of the Mine Safety and Health Administration or the Occupational Safety and Health Administration of the Department of Labor may participate in the access.
Number
The number of designated United States representatives accompanying IAEA inspectors shall be kept to the minimum necessary.
Procedures for complementary access
In General
Each instance of complementary access to a location in the United States under the Additional Protocol shall be conducted in accordance with this title.
Notice
In general
Complementary access referred to in subsection (a) may occur only upon the issuance of an actual written notice by the United States Government to the owner, operator, occupant, or agent in charge of the location to be subject to complementary access.
Time of notification
The notice under paragraph (1) shall be submitted to such owner, operator, occupant, or agent as soon as possible after the United States Government has received notification that the IAEA seeks complementary access. Notices may be posted prominently at the location if the United States Government is unable to provide actual written notice to such owner, operator, occupant, or agent.
Content of notice
In general
The notice required by paragraph (1) shall specify—
the purpose for the complementary access;
the basis for the selection of the facility, site, or other location for the complementary access sought;
the activities that will be carried out during the complementary access;
the time and date that the complementary access is expected to begin, and the anticipated period covered by the complementary access; and
the names and titles of the inspectors.
Separate notices required
A separate notice shall be provided each time that complementary access is sought by the IAEA.
Credentials
The complementary access team of the IAEA and representatives or designees of the United States Government shall display appropriate identifying credentials to the owner, operator, occupant, or agent in charge of the location before gaining entry in connection with complementary access.
Scope
In general
Except as provided in a warrant issued under section 203, and subject to the United States Government’s rights under the Additional Protocol to limit complementary access, complementary access to a location pursuant to this title may extend to all activities specifically permitted for such locations under Article 6 of the Additional Protocol.
Exception
Unless required by the Additional Protocol, no inspection under this title shall extend to—
financial data (other than production data);
sales and marketing data (other than shipment data);
pricing data;
personnel data;
patent data;
data maintained for compliance with environmental or occupational health and safety regulations; or
research data.
Environment, Health, Safety, and Security
In carrying out their activities, members of the IAEA complementary access team and representatives or designees of the United States Government shall observe applicable environmental, health, safety, and security regulations established at the location subject to complementary access, including those for protection of controlled environments within a facility and for personal safety.
Consents, warrants, and complementary access
In General
Procedure
Consent
Except as provided in paragraph (2), an appropriate official of the United States Government shall seek or have the consent of the owner, operator, occupant, or agent in charge of a location prior to entering that location in connection with complementary access pursuant to sections 201 and 202. The owner, operator, occupant, or agent in charge of the location may withhold consent for any reason or no reason.
Administrative search warrant
In the absence of consent, the United States Government may seek an administrative search warrant from a judge of the United States under subsection (b). Proceedings regarding the issuance of an administrative search warrant shall be conducted ex parte, unless otherwise requested by the United States Government.
Expedited access
For purposes of obtaining access to a location pursuant to Article 4b.(ii) of the Additional Protocol in order to satisfy United States obligations under the Additional Protocol when notice of two hours or less is required, the United States Government may gain entry to such location in connection with complementary access, to the extent such access is consistent with the Fourth Amendment to the United States Constitution, without obtaining either a warrant or consent.
Administrative Search Warrants for Complementary Access
Obtaining administrative search warrants
For complementary access conducted in the United States pursuant to the Additional Protocol, and for which the acquisition of a warrant is required, the United States Government shall first obtain an administrative search warrant from a judge of the United States. The United States Government shall provide to such judge all appropriate information regarding the basis for the selection of the facility, site, or other location to which complementary access is sought.
Content of affidavits for administrative search warrants
A judge of the United States shall promptly issue an administrative search warrant authorizing the requested complementary access upon an affidavit submitted by the United States Government—
stating that the Additional Protocol is in force;
stating that the designated facility, site, or other location is subject to complementary access under the Additional Protocol;
stating that the purpose of the complementary access is to verify the correctness and completeness of information declared by the United States Government pursuant to Article 2 of the Additional Protocol;
stating that the requested complementary access is in accordance with Article 4 of the Additional Protocol;
containing assurances that the scope of the IAEA’s complementary access, as well as what it may collect, shall be limited to the access provided for in Article 6 of the Additional Protocol;
listing the items, documents, and areas to be searched and seized;
stating the earliest commencement and the anticipated duration of the complementary access period, as well as the expected times of day during which such complementary access will take place; and
stating that the location to which entry in connection with complementary access is sought was selected either—
because there is probable cause, on the basis of specific evidence, to believe that information required to be reported regarding a location pursuant to regulations promulgated under this Act is incorrect or incomplete, and that the location to be accessed contains evidence regarding that violation; or
pursuant to a reasonable general administrative plan based upon specific neutral criteria.
Content of warrants
A warrant issued under paragraph (2) shall specify the same matters required of an affidavit under that paragraph. In addition, each warrant shall contain the identities of the representatives of the IAEA on the complementary access team and the identities of the representatives or designees of the United States Government required to display identifying credentials under section 202(c).
Prohibited acts relating to complementary access
It shall be unlawful for any person willfully to fail or refuse to permit, or to disrupt, delay, or otherwise impede, a complementary access authorized by this Act or an entry in connection with such access.
CONFIDENTIALITY OF INFORMATION
Protection of confidentiality of information
Information reported to, or otherwise acquired by, the United States Government under this Act or under the Additional Protocol shall be exempt from disclosure under sections 552 of title 5, United States Code.
Enforcement
Recordkeeping violations
It shall be unlawful for any person willfully to fail or refuse—
to establish or maintain any record required by any regulation prescribed under this Act;
to submit any report, notice, or other information to the United States Government in accordance with any regulation prescribed under this Act; or
to permit access to or copying of any record by the United States Government in accordance with any regulation prescribed under this Act.
Penalties
Civil
Penalty amounts
Any person that is determined, in accordance with paragraph (2), to have violated section 204 or section 401 shall be required by order to pay a civil penalty in an amount not to exceed $25,000 for each violation. For the purposes of this paragraph, each day during which a violation of section 204 continues shall constitute a separate violation of that section.
Notice and hearing
In general
Before imposing a penalty against a person under paragraph (1), the head of an executive agency designated under section 101(a) shall provide the person with notice of the order. If, within 15 days after receiving the notice, the person requests a hearing, the head of the designated executive agency shall initiate a hearing on the violation.
Conduct of hearing
Any hearing so requested shall be conducted before an administrative judge. The hearing shall be conducted in accordance with the requirements of section 554 of title 5, United States Code. If no hearing is so requested, the order imposed by the head of the designated agency shall constitute a final agency action.
Issuance of orders
If the administrative judge determines, upon the preponderance of the evidence received, that a person named in the complaint has violated section 204 or section 401, the administrative judge shall state his findings of fact and conclusions of law, and issue and serve on such person an order described in paragraph (1).
Factors for determination of penalty amounts
In determining the amount of any civil penalty, the administrative judge or the head of the designated agency shall take into account the nature, circumstances, extent, and gravity of the violation or violations and, with respect to the violator, the ability to pay, effect on ability to continue to do business, any history of such violations, the degree of culpability, the existence of an internal compliance program, and such other matters as justice may require.
Content of notice
For the purposes of this paragraph, notice shall be in writing and shall be verifiably served upon the person or persons subject to an order described in paragraph (1). In addition, the notice shall—
set forth the time, date, and specific nature of the alleged violation or violations; and
specify the administrative and judicial remedies available to the person or persons subject to the order, including the availability of a hearing and subsequent appeal.
Administrative appellate review
The decision and order of an administrative judge shall be the recommended decision and order and shall be referred to the head of the designated executive agency for final decision and order. If, within 60 days, the head of the designated executive agency does not modify or vacate the decision and order, it shall become a final agency action under this subsection.
Judicial review
A person adversely affected by a final order may, within 30 days after the date the final order is issued, file a petition in the Court of Appeals for the District of Columbia Circuit or in the Court of Appeals for the district in which the violation occurred.
Enforcement of final orders
In general
If a person fails to comply with a final order issued against such person under this subsection and—
the person has not filed a petition for judicial review of the order in accordance with paragraph (4), or
a court in an action brought under paragraph (4) has entered a final judgment in favor of the designated executive agency,
No review
In any such civil action, the validity and appropriateness of the final order shall not be subject to review.
Interest
Payment of penalties assessed in a final order under this section shall include interest at currently prevailing rates calculated from the date of expiration of the 60-day period referred to in paragraph (3) or the date of such final order, as the case may be.
Criminal
Any person who violates section 204 or section 401 may, in addition to or in lieu of any civil penalty which may be imposed under subsection (a) for such violation, be fined under title 18, United States Code, imprisoned for not more than five years, or both.
Specific enforcement
Jurisdiction
The district courts of the United States shall have jurisdiction over civil actions brought by the head of an executive agency designated under section 101(a)—
to restrain any conduct in violation of section 204 or section 401; or
to compel the taking of any action required by or under this Act or the Additional Protocol.
Civil Actions
In general
A civil action described in subsection (a) may be brought—
in the case of a civil action described in paragraph (1) of such subsection, in the United States district court for the judicial district in which any act, omission, or transaction constituting a violation of section 204 or section 401 occurred or in which the defendant is found or transacts business; or
in the case of a civil action described in paragraph (2) of such subsection, in the United States district court for the judicial district in which the defendant is found or transacts business.
Service of process
In any such civil action, process shall be served on a defendant wherever the defendant may reside or may be found.
ENVIRONMENTAL SAMPLING
Notification to Congress of IAEA board approval of wide-area environmental sampling
In General
Not later than 30 days after the date on which the Board of Governors of the IAEA approves wide-area environmental sampling for use as a safeguards verification tool, the President shall notify the appropriate congressional committees.
Content
The notification under subsection (a) shall contain—
a description of the specific methods and sampling techniques approved by the Board of Governors that are to be employed for purposes of wide-area sampling; and
a statement as to whether or not such sampling may be conducted in the United States under the Additional Protocol.
Application of national security exclusion to wide-area environmental sampling
In accordance with Article 1(b) of the Additional Protocol, the United States shall not permit any wide-area environmental sampling proposed by the IAEA to be conducted at a specified location in the United States under Article 9 of the Additional Protocol unless the President has determined and reported to the appropriate congressional committees that—
the proposed use of wide-area environmental sampling is necessary to increase the capability of the IAEA to detect undeclared nuclear activities in the territory of a non-nuclear-weapon State Party;
the proposed use of wide-area environmental sampling will not result in access by the IAEA to locations, activities, or information of direct national security significance; and
the United States—
has been provided sufficient opportunity for consultation with the IAEA if the IAEA has requested complementary access involving wide-area environmental sampling; or
has requested under Article 8 of the Additional Protocol that the IAEA engage in complementary access in the United States that involves the use of wide-area environmental sampling.
Application of national security exclusion to location-specific environmental sampling
In accordance with Article 1(b) of the Additional Protocol, the United States shall not permit any location-specific environmental sampling in the United States under Article 5 of the Additional Protocol unless the President has determined and reported to the appropriate congressional committees that—
the proposed use of location-specific environmental sampling will not result in access by the IAEA to locations, activities, or information of direct national security significance; and
with respect to the proposed use of environmental sampling, the United States—
has been provided sufficient opportunity for consultation with the IAEA if the IAEA has requested complementary access involving location-specific environmental sampling; or
has requested under Article 8 of the Additional Protocol that the IAEA engage in complementary access in the United States that involves the use of location-specific environmental sampling.
AUTHORIZATION OF APPROPRIATIONS
Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this Act.
April 3, 2006
Read twice and placed on the calendar