CHAPTER 88 - NUCLEAR NON-PROLIFERATION TREATY—UNITED STATES ADDITIONAL PROTOCOL IMPLEMENTATION

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§ 8101 Findings

Congress makes the following findings: The proliferation of nuclear weapons and other nuclear explosive devices poses a grave threat to the national security of the United States and its vital national interests. The Nuclear Non-Proliferation Treaty has proven critical to limiting such proliferation. For the Nuclear Non-Proliferation Treaty to be effective, each of the non-nuclear-weapon State Parties must conclude a comprehensive safeguards agreement with the IAEA, and such agreements must be honored and enforced. Recent events emphasize the urgency of strengthening the effectiveness and improving the efficiency of the safeguards system. This can best be accomplished by providing IAEA inspectors with more information about, and broader access to, nuclear activities within the territory of non-nuclear-weapon State Parties. The proposed scope of such expanded information and access has been negotiated by the member states of the IAEA in the form of a Model Additional Protocol to its existing safeguards agreements, and universal acceptance of Additional Protocols by non-nuclear weapons states is essential to enhancing the effectiveness of the Nuclear Non-Proliferation Treaty. On June 12, 1998 , the United States, as a nuclear-weapon State Party, signed an Additional Protocol that is based on the Model Additional Protocol, but which also contains measures, consistent with its existing safeguards agreements with its members, that protect the right of the United States to exclude the application of IAEA safeguards to locations and activities with direct national security significance or to locations or information associated with such activities. Implementation of the Additional Protocol in the United States in a manner consistent with United States obligations under the Nuclear Non-Proliferation Treaty may encourage other parties to the Nuclear Non-Proliferation Treaty, especially non-nuclear-weapon State Parties, to conclude Additional Protocols and thereby strengthen the Nuclear Non-Proliferation Treaty safeguards system and help reduce the threat of nuclear proliferation, which is of direct and substantial benefit to the United States. Implementation of the Additional Protocol by the United States is not required and is completely voluntary given its status as a nuclear-weapon State Party, but the United States has acceded to the Additional Protocol to demonstrate its commitment to the nuclear nonproliferation regime and to make United States civil nuclear activities available to the same IAEA inspections as are applied in the case of non-nuclear-weapon State Parties. In accordance with the national security exclusion contained in Article 1.b of its Additional Protocol, the United States will not allow any inspection activities, nor make any declaration of any information with respect to, locations, information, and activities of direct national security significance to the United States. Implementation of the Additional Protocol will conform to the principles set forth in the letter of April 30, 2002 , from the United States Permanent Representative to the International Atomic Energy Agency and the Vienna Office of the United Nations to the Director General of the International Atomic Energy Agency. ( Pub. L. 109–401, title II, § 202 , Dec. 18, 2006 , 120 Stat. 2741 .)

§ 8102 Definitions

In this chapter: 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). 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, the Committee on Science, and the Committee on Appropriations of the House of Representatives. 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. The term “executive agency” has the meaning given such term in section 105 of title 5 . The term “facility” has the meaning set forth in Article 18i. of the Additional Protocol. The term “IAEA” means the International Atomic Energy Agency. 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. The term “location” means any geographic point or area declared or identified by the United States or specified by the International Atomic Energy Agency. 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). The terms “nuclear-weapon State Party” and “non-nuclear-weapon State Party” have the meanings given such terms in the Nuclear Non-Proliferation Treaty. 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. The term “site” has the meaning set forth in Article 18b. of the Additional Protocol. 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 ; and any vessel of the United States, as such term is defined in section 70502(b) of title 46 . The term “wide-area environmental sampling” has the meaning set forth in Article 18g. of the Additional Protocol. ( Pub. L. 109–401, title II, § 203 , Dec. 18, 2006 , 120 Stat. 2742 .)

§ 8103 Severability

If any provision of this chapter, or the application of such provision to any person or circumstance, is held invalid, the remainder of this chapter, 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. ( Pub. L. 109–401, title II, § 204 , Dec. 18, 2006 , 120 Stat. 2743 .)

§ 8111 Authority

(a) In general The President is authorized to implement and carry out the provisions of this chapter 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 chapter and the provisions of the Additional Protocol.

(b) 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.

(c) 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.

§ 8121 Requirement for authority to conduct complementary access

(a) 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 chapter.

(b) Authority Complementary access to any location in the United States subject to access under the Additional Protocol is authorized in accordance with this chapter. 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. The number of designated United States representatives accompanying IAEA inspectors shall be kept to the minimum necessary.

§ 8122 Procedures for complementary access

(a) 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 subchapter.

(b) Notice 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. 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. 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. A separate notice shall be provided each time that complementary access is sought by the IAEA.

(c) 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.

(d) Scope Except as provided in a warrant issued under section 8123 of this title , and subject to the rights of the United States Government under the Additional Protocol to limit complementary access, complementary access to a location pursuant to this chapter may extend to all activities specifically permitted for such locations under Article 6 of the Additional Protocol. Unless required by the Additional Protocol, no inspection under this chapter 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.

(e) 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.

§ 8123 Consents, warrants, and complementary access

(a) In general 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 8121 and 8122 of this title. The owner, operator, occupant, or agent in charge of the location may withhold consent for any reason or no reason. 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. 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.

(b) Administrative search warrants for complementary access 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. 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 consistent with Article 4 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 chapter 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. 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 8122(c) of this title .

§ 8124 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 subchapter or an entry in connection with such access. ( Pub. L. 109–401, title II, § 224 , Dec. 18, 2006 , 120 Stat. 2747 .)

§ 8131 Protection of confidentiality of information

Information reported to, or otherwise acquired by, the United States Government under this chapter or under the Additional Protocol shall be exempt from disclosure under section 552 of title 5 . ( Pub. L. 109–401, title II, § 231 , Dec. 18, 2006 , 120 Stat. 2747 .)

§ 8141 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 chapter; to submit any report, notice, or other information to the United States Government in accordance with any regulation prescribed under this chapter; or to permit access to or copying of any record by the United States Government in accordance with any regulation prescribed under this chapter. ( Pub. L. 109–401, title II, § 241 , Dec. 18, 2006 , 120 Stat. 2747 .)

§ 8142 Penalties

(a) Civil Any person that is determined, in accordance with paragraph (2), to have violated section 8124 of this title or section 8141 of this title 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 8124 of this title continues shall constitute a separate violation of that section. Before imposing a penalty against a person under paragraph (1), the head of an executive agency designated under section 8111(a) of this title 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. 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 . If no hearing is so requested, the order imposed by the head of the designated agency shall constitute a final agency action. If the administrative judge determines, upon the preponderance of the evidence received, that a person named in the complaint has violated section 8124 of this title or section 8141 of this title , the administrative judge shall state the findings of fact and conclusions of law, and issue and serve on such person an order described in paragraph (1). 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. 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. 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. 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. 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, the head of the designated executive agency shall commence a civil action to seek compliance with the final order in any appropriate district court of the United States. In any such civil action, the validity and appropriateness of the final order shall not be subject to review. 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.

(b) Criminal Any person who violates section 8124 of this title or section 8141 of this title 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, imprisoned for not more than five years, or both.

§ 8143 Specific enforcement

(a) 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 8111(a) of this title — to restrain any conduct in violation of section 8124 of this title or section 8141 of this title ; or to compel the taking of any action required by or under this chapter or the Additional Protocol.

(b) Civil actions 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 8124 of this title or section 8141 of this title 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. In any such civil action, process shall be served on a defendant wherever the defendant may reside or may be found.

§ 8151 Notification to Congress of IAEA Board approval of wide-area environmental sampling

(a) 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.

(b) 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; a statement as to whether or not such sampling may be conducted in the United States under the Additional Protocol; and an assessment of the ability of the approved methods and sampling techniques to detect, identify, and determine the conduct, type, and nature of nuclear activities.

§ 8152 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 with respect to that proposed use of environmental sampling 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. ( Pub. L. 109–401, title II, § 252 , Dec. 18, 2006 , 120 Stat. 2750 .)

§ 8153 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 with respect to that proposed use of environmental sampling that— the proposed use of location-specific 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 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. ( Pub. L. 109–401, title II, § 253 , Dec. 18, 2006 , 120 Stat. 2750 .)

§ 8154 Rule of construction

As used in this subchapter, the term “necessary to increase the capability of the IAEA to detect undeclared nuclear activities in the territory of a non-nuclear-weapon State Party” shall not be construed to encompass proposed uses of environmental sampling that might assist the IAEA in detecting undeclared nuclear activities in the territory of a non-nuclear-weapon State Party by— setting a good example of cooperation in the conduct of such sampling; or facilitating the formation of a political consensus or political support for such sampling in the territory of a non-nuclear-weapon State Party. ( Pub. L. 109–401, title II, § 254 , Dec. 18, 2006 , 120 Stat. 2751 .)

§ 8161 Protection of certain information

(a) Locations and facilities of direct national security significance No current or former Department of Defense or Department of Energy location, site, or facility of direct national security significance shall be declared or be subject to IAEA inspection under the Additional Protocol.

(b) Information of direct national security significance No information of direct national security significance regarding any location, site, or facility associated with activities of the Department of Defense or the Department of Energy shall be provided under the Additional Protocol.

(c) Restricted data Nothing in this chapter shall be construed to permit the communication or disclosure to the IAEA or IAEA employees of restricted data controlled by the provisions of the Atomic Energy Act of 1954 ( 42 U.S.C. 2011 et seq.), including in particular “Restricted Data” as defined under paragraph (1) of section 11 y. of such Act ( 42 U.S.C. 2014(y) ).

(d) Classified information Nothing in this Act shall be construed to permit the communication or disclosure to the IAEA or IAEA employees of national security information and other classified information.

§ 8162 IAEA inspections and visits

(a) Certain individuals prohibited from obtaining access No national of a country designated by the Secretary of State under section 2371 of this title as a government supporting acts of international terrorism shall be permitted access to the United States to carry out an inspection activity under the Additional Protocol or a related safeguards agreement.

(b) Presence of United States Government personnel IAEA inspectors shall be accompanied at all times by United States Government personnel when inspecting sites, locations, facilities, or activities in the United States under the Additional Protocol.

(c) Vulnerability and related assessments The President shall conduct vulnerability, counterintelligence, and related assessments not less than every 5 years to ensure that information of direct national security significance remains protected at all sites, locations, facilities, and activities in the United States that are subject to IAEA inspection under the Additional Protocol.

§ 8171 Report on initial United States declaration

Not later than 60 days before submitting the initial United States declaration to the IAEA under the Additional Protocol, the President shall submit to Congress a list of the sites, locations, facilities, and activities in the United States that the President intends to declare to the IAEA, and a report thereon. ( Pub. L. 109–401, title II, § 271 , Dec. 18, 2006 , 120 Stat. 2752 .)

§ 8172 Report on revisions to initial United States declaration

Not later than 60 days before submitting to the IAEA any revisions to the United States declaration submitted under the Additional Protocol, the President shall submit to Congress a list of any sites, locations, facilities, or activities in the United States that the President intends to add to or remove from the declaration, and a report thereon. ( Pub. L. 109–401, title II, § 272 , Dec. 18, 2006 , 120 Stat. 2752 .)

§ 8173 Content of reports on United States declarations

The reports required under section 8171 of this title and section 8172 of this title shall present the reasons for each site, location, facility, and activity being declared or being removed from the declaration list and shall certify that— each site, location, facility, and activity included in the list has been examined by each agency with national security equities with respect to such site, location, facility, or activity; and appropriate measures have been taken to ensure that information of direct national security significance will not be compromised at any such site, location, facility, or activity in connection with an IAEA inspection. ( Pub. L. 109–401, title II, § 273 , Dec. 18, 2006 , 120 Stat. 2752 .)

§ 8174 Report on efforts to promote the implementation of additional protocols

Not later than 180 days after the entry into force of the Additional Protocol, the President shall submit to the appropriate congressional committees a report on— measures that have been or should be taken to achieve the adoption of additional protocols to existing safeguards agreements signed by non-nuclear-weapon State Parties; and assistance that has been or should be provided by the United States to the IAEA in order to promote the effective implementation of additional protocols to existing safeguards agreements signed by non-nuclear-weapon State Parties and the verification of the compliance of such parties with IAEA obligations, with a plan for providing any needed additional funding. ( Pub. L. 109–401, title II, § 274 , Dec. 18, 2006 , 120 Stat. 2752 .)

§ 8175 Notice of IAEA notifications

The President shall notify Congress of any notifications issued by the IAEA to the United States under Article 10 of the Additional Protocol. ( Pub. L. 109–401, title II, § 275 , Dec. 18, 2006 , 120 Stat. 2753 .)

§ 8181 Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this chapter. ( Pub. L. 109–401, title II, § 281 , Dec. 18, 2006 , 120 Stat. 2753 .)