PART 784—COMPLEMENTARY ACCESS Authority: United States Additional Protocol Implementation Act of 2006, Pub. Law No. 109-401, 120 Stat. 2726 (December 18, 2006) (to be codified at 22 U.S.C. 8101-8181); Executive Order 13458 (February 4, 2008). Source: 73 FR 65128, Oct. 31, 2008, unless otherwise noted. § 784.1 Complementary access: General information on the purpose of complementary access, affected locations, and the role of BIS. (a) Overview. (b) Purposes authorized under the APR. (1) Declared uranium hard-rock mines and ore beneficiation plants. (2) Other locations specified in the U.S. declaration and locations requested by the IAEA that are not included in the U.S. declaration as agreed to by the U.S. Government. (i) In the event that the IAEA has a question about, or identifies an apparent inconsistency in, information contained in the U.S. declaration (e.g., information based on reports submitted to BIS by one of these locations, pursuant to § 783.1(a)(1), (a)(2), or (b) of the APR), the IAEA will provide the U.S. Government with an opportunity to clarify or resolve the question or inconsistency. The IAEA will not draw any conclusions about the question or inconsistency, or request complementary access to a location, until the U.S. Government has been provided with an opportunity to clarify or resolve the question or inconsistency, unless the IAEA considers that a delay in access would prejudice the purpose for which the access is sought. (ii) Upon receipt of a request from the IAEA for clarification concerning information contained in the U.S. declaration, BIS will provide written notification to the U.S. location. The U.S. location must provide BIS with all of the requested information to clarify or resolve the question or inconsistency raised by the IAEA. Unless informed otherwise by BIS, the U.S. location will have 15 calendar days from its receipt of written notification to submit the required forms to BIS (see the Supplemental Information Report (c) Locations subject to complementary access. (d) Responsibilities of BIS. (1) Serve as the official U.S. Government host to the IAEA inspection team; (2) Provide prior written notification to any location that is scheduled to undergo complementary access; (3) Take appropriate action to obtain an administrative warrant in the event that a location does not consent to complementary access; (4) Upon request of the location, dispatch an advance team, if time and other circumstances permit, to the location to provide administrative and logistical support for complementary access and to assist with preparation for such access; (5) Accompany the IAEA Team throughout the duration of complementary access; (6) Assist the IAEA Team with complementary access activities and ensure that each activity adheres to the provisions of the Additional Protocol and to the requirements of the APR and the Act, including the conditions of any warrant issued thereunder; and (7) Assist in the negotiation and development of a location-specific subsidiary arrangement between the U.S. Government and the IAEA, if appropriate (see § 784.5 of the APR). Note to § 784.1( d BIS may invite representatives from other U.S. Government agencies to participate as members of the Advance and Host Teams for complementary access. The Host Team will not include employees of the Environmental Protection Agency, the Mine Safety and Health Administration, or the Occupational Safety and Health Administration of the Department of Labor. § 784.2 Obtaining consent or warrants to conduct complementary access. (a) Procedures for obtaining consent. (2) For locations specified by the IAEA where access cannot be provided, BIS may seek consent from an adjacent location pursuant to an IAEA complementary access request. (b) Who may give consent. (c) Scope of consent. (i) Information subject to the licensing jurisdiction of the Directorate of Defense Trade Controls (DDTC), U.S. Department of State, under the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130)—see § 784.3(b)(3) of the APR, which states that such access cannot be provided without prior U.S. Government authorization; and (ii) Activities with direct national security significance to the United States, or locations or information associated with such activities. (2) The Host Team Leader is responsible for determining whether or not the IAEA's request to obtain access to any area, building, or item, or to record or conduct the types of activities described in § 784.3 of the APR is consistent with the Additional Protocol and subsidiary arrangements to the Additional Protocol. § 784.3 Scope and conduct of complementary access. (a) General. (b) Scope. (1) Complementary access activities. (i) Perform visual observation of parts or areas of the location; (ii) Utilize radiation detection and measurement devices; (iii) Utilize non-destructive measurements and sampling; (iv) Examine relevant records (i.e., records appropriate for the purpose of complementary access, as authorized under § 784.1(b) of the APR), except that the following records may not be inspected unless the Host Team leader, after receiving input from representatives of the location and consulting with other members of the Host Team, determines that such access is both appropriate and necessary to achieve the relevant purpose described in § 784.1(b)(1) or (b)(2) of the APR: (A) Financial data (other than production data); (B) Sales and marketing data (other than shipment data); (C) Pricing data; (D) Personnel data; (E) Patent data; (F) Data maintained for compliance with environmental or occupational health and safety regulations; or (G) Research data (unless the data are reported on Form AP-3 or AP-4); (v) Perform location-specific environmental sampling; and Note to § 784.3( b v BIS will not seek access to a location for location-specific environmental sampling until the President reports to the appropriate congressional committees his determination to permit such sampling. (vi) Utilize other objective measures which have been demonstrated to be technically feasible and the use of which have been agreed to by the United States (“objective measures,” as used herein, means any verification techniques that would be appropriate for achieving the official purpose of complementary access, both in terms of their effectiveness and limited intrusiveness). (2) Wide Area Environmental Sampling. Note to § 784.3( b The IAEA will not seek such access until the use of wide-area environmental sampling and the procedural arrangements therefor have been approved by its Board of Governors and consultations have been held between the IAEA and the United States. BIS will not seek access to a location for wide-area sampling until the President reports to the appropriate congressional committees his determination to permit such sampling. (3) ITAR-controlled technology. (c) Briefing. (1) Areas, buildings, and structures specific to any activities relevant to complementary access; (2) Administrative and logistical information; (3) Updates/revisions to reports required under the APR; (4) Introduction of key personnel at the location; (5) Location-specific subsidiary arrangement, if applicable; and (6) Proposed access plan to address the purpose of complementary access. (d) Visual access. (e) Records review. (f) Managed access. (g) Hours of complementary access. (h) Environmental, health, safety, and security regulations and requirements. (i) Host Team to accompany the IAEA Team. (j) Scope of authorized communications by the IAEA Team. (2) No document, photograph or other recorded medium, or sample relevant to complementary access may be removed or transmitted from the location by the IAEA Team without the prior consent of the Host Team. (k) IAEA activities, findings, and results related to complementary access. (i) Any activities that took place in connection with complementary access to a location in the United States, including any activities concerning questions or inconsistencies that the IAEA may have brought to the attention of the United States, within 60 calendar days of the time that the activities occurred; and (ii) The findings or results of any activities that took place, including the findings and results of activities concerning questions or inconsistencies that the IAEA may have brought to the attention of the United States, within 30 calendar days of the time that such findings or results were reached by the IAEA. (2) BIS will provide the results of complementary access to the owner, operator, occupant, or agent in charge of the inspected location to the extent practicable. § 784.4 Notification, duration and frequency of complementary access. (a) Complementary access notification. (1) Content of notice Pertinent information furnished by the IAEA. (A) The purpose of complementary access; (B) The basis for the selection of the location for complementary access; (C) The activities that will be carried out during complementary access; (D) The time and date that complementary access is expected to begin and its anticipated duration; and (E) The names and titles of the IAEA inspectors who will participate in complementary access. (ii) Request for location's consent to complementary access. (iii) Availability of advance team from BIS. (2) Notification procedures. Table to § 784.4( a Activity Agency action Location action IAEA notification of complementary access BIS will transmit complementary access notification via facsimile to the owner, operator, occupant, or agent in charge of a location to ascertain whether or not the location: Location must inform BIS, within 4 hours of its receipt of complementary access notification, whether or not it: If the location does not inform BIS of its consent to complementary access, within 4 hours of the time it receives notification from BIS, BIS will seek an administrative warrant. Preparation for complementary access If a BIS advance team has been requested and is available, it will arrive at the location to be accessed and assist the location in making logistical and administrative preparations for complementary access. The location will engage in activities that will prepare the location for complementary access (e.g., identifying any ITAR-controlled technology or national security information at the location), either singularly or in cooperation with a BIS advance team if one has been requested and is available. (3) Timing of notification. (b) Duration of complementary access. § 784.5 Subsidiary arrangements. (a) General subsidiary arrangement. (b) Location-specific subsidiary arrangement Purpose. (2) Format and content. § 784.6 Post complementary access activities. Upon receiving the IAEA's final report on complementary access, BIS will forward a copy of the report to the location for its review, in accordance with § 784.3(k)(2) of the APR. Locations may submit comments concerning the IAEA's final report to BIS, and BIS will consider them, as appropriate, when preparing its comments to the IAEA on the final report. BIS also will send locations a post complementary access letter detailing the issues that require follow-up action (see, for example, the Amended Report