[House Report 109-721]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-721
======================================================================
HENRY J. HYDE UNITED STATES-INDIA PEACEFUL ATOMIC ENERGY COOPERATION
ACT OF 2006
_______
December 7, 2006.--Ordered to be printed
_______
Mr. Hyde, from the committee of conference, submitted the following
CONFERENCE REPORT
[To accompany H.R. 5682]
The committee of conference on the disagreeing votes of
the two Houses on the amendment of the Senate to the bill (H.R.
5682), to exempt from certain requirements of the Atomic Energy
Act of 1954 a proposed nuclear agreement for cooperation with
India, having met, after full and free conference, have agreed
to recommend and do recommend to their respective Houses as
follows:
That the House recede from its disagreement to the
amendment of the Senate and agree to the same with an amendment
as follows:
In lieu of the matter proposed to be inserted by the
Senate amendment, insert the following:
TITLE I--UNITED STATES AND INDIA NUCLEAR COOPERATION
SEC. 101. SHORT TITLE.
This title may be cited as the ``Henry J. Hyde United
States-India Peaceful Atomic Energy Cooperation Act of 2006''.
SEC. 102. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) preventing the proliferation of nuclear
weapons, other weapons of mass destruction, the means
to produce them, and the means to deliver them are
critical objectives for United States foreign policy;
(2) sustaining the Nuclear Non-Proliferation Treaty
(NPT) and strengthening its implementation,
particularly its verification and compliance, is the
keystone of United States nonproliferation policy;
(3) the NPT has been a significant success in
preventing the acquisition of nuclear weapons
capabilities and maintaining a stable international
security situation;
(4) countries that have never become a party to the
NPT and remain outside that treaty's legal regime pose
a potential challenge to the achievement of the overall
goals of global nonproliferation, because those
countries have not undertaken the NPT obligation to
prohibit the spread of nuclear weapons capabilities;
(5) it is in the interest of the United States to
the fullest extent possible to ensure that those
countries that are not States Party to the NPT are
responsible in the disposition of any nuclear
technology they develop;
(6) it is in the interest of the United States to
enter into an agreement for nuclear cooperation
arranged pursuant to section 123 of the Atomic Energy
Act of 1954 (42 U.S.C. 2153) with a country that has
never been a State Party to the NPT if--
(A) the country has demonstrated
responsible behavior with respect to the
nonproliferation of technology related to
nuclear weapons and the means to deliver them;
(B) the country has a functioning and
uninterrupted democratic system of government,
has a foreign policy that is congruent to that
of the United States, and is working with the
United States on key foreign policy initiatives
related to nonproliferation;
(C) such cooperation induces the country to
promulgate and implement substantially improved
protections against the proliferation of
technology related to nuclear weapons and the
means to deliver them, and to refrain from
actions that would further the development of
its nuclear weapons program; and
(D) such cooperation will induce the
country to give greater political and material
support to the achievement of United States
global and regional nonproliferation
objectives, especially with respect to
dissuading, isolating, and, if necessary,
sanctioning and containing states that sponsor
terrorism and terrorist groups that are seeking
to acquire a nuclear weapons capability or
other weapons of mass destruction capability
and the means to deliver such weapons;
(7) the United States should continue its policy of
engagement, collaboration, and exchanges with and
between India and Pakistan;
(8) strong bilateral relations with India are in
the national interest of the United States;
(9) the United States and India share common
democratic values and the potential for increasing and
sustained economic engagement;
(10) commerce in civil nuclear energy with India by
the United States and other countries has the potential
to benefit the people of all countries;
(11) such commerce also represents a significant
change in United States policy regarding commerce with
countries that are not States Party to the NPT, which
remains the foundation of the international
nonproliferation regime;
(12) any commerce in civil nuclear energy with
India by the United States and other countries must be
achieved in a manner that minimizes the risk of nuclear
proliferation or regional arms races and maximizes
India's adherence to international nonproliferation
regimes, including, in particular, the guidelines of
the Nuclear Suppliers Group (NSG); and
(13) the United States should not seek to
facilitate or encourage the continuation of nuclear
exports to India by any other party if such exports are
terminated under United States law.
SEC. 103. STATEMENTS OF POLICY.
(a) In General.--The following shall be the policies of the
United States:
(1) Oppose the development of a capability to
produce nuclear weapons by any non-nuclear weapon
state, within or outside of the NPT.
(2) Encourage States Party to the NPT to interpret
the right to ``develop research, production and use of
nuclear energy for peaceful purposes'', as set forth in
Article IV of the NPT, as being a right that applies
only to the extent that it is consistent with the
object and purpose of the NPT to prevent the spread of
nuclear weapons and nuclear weapons capabilities,
including by refraining from all nuclear cooperation
with any State Party that the International Atomic
Energy Agency (IAEA) determines is not in full
compliance with its NPT obligations, including its
safeguards obligations.
(3) Act in a manner fully consistent with the
Guidelines for Nuclear Transfers and the Guidelines for
Transfers of Nuclear-Related Dual-Use Equipment,
Materials, Software and Related Technology developed by
the NSG, and decisions related to those guidelines, and
the rules and practices regarding NSG decisionmaking.
(4) Strengthen the NSG guidelines and decisions
concerning consultation by members regarding violations
of supplier and recipient understandings by instituting
the practice of a timely and coordinated response by
NSG members to all such violations, including
termination of nuclear transfers to an involved
recipient, that discourages individual NSG members from
continuing cooperation with such recipient until such
time as a consensus regarding a coordinated response
has been achieved.
(5) Given the special sensitivity of equipment and
technologies related to the enrichment of uranium, the
reprocessing of spent nuclear fuel, and the production
of heavy water, work with members of the NSG,
individually and collectively, to further restrict the
transfers of such equipment and technologies, including
to India.
(6) Seek to prevent the transfer to a country of
nuclear equipment, materials, or technology from other
participating governments in the NSG or from any other
source if nuclear transfers to that country are
suspended or terminated pursuant to this title, the
Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), or
any other United States law.
(b) With Respect to South Asia.--The following shall be the
policies of the United States with respect to South Asia:
(1) Achieve, at the earliest possible date, a
moratorium on the production of fissile material for
nuclear explosive purposes by India, Pakistan, and the
People's Republic of China.
(2) Achieve, at the earliest possible date, the
conclusion and implementation of a treaty banning the
production of fissile material for nuclear weapons to
which both the United States and India become parties.
(3) Secure India's--
(A) full participation in the Proliferation
Security Initiative;
(B) formal commitment to the Statement of
Interdiction Principles of such Initiative;
(C) public announcement of its decision to
conform its export control laws, regulations,
and policies with the Australia Group and with
the Guidelines, Procedures, Criteria, and
Control Lists of the Wassenaar Arrangement;
(D) demonstration of satisfactory progress
toward implementing the decision described in
subparagraph (C); and
(E) ratification of or accession to the
Convention on Supplementary Compensation for
Nuclear Damage, done at Vienna on September 12,
1997.
(4) Secure India's full and active participation in
United States efforts to dissuade, isolate, and, if
necessary, sanction and contain Iran for its efforts to
acquire weapons of mass destruction, including a
nuclear weapons capability and the capability to enrich
uranium or reprocess nuclear fuel, and the means to
deliver weapons of mass destruction.
(5) Seek to halt the increase of nuclear weapon
arsenals in South Asia and to promote their reduction
and eventual elimination.
(6) Ensure that spent fuel generated in India's
civilian nuclear power reactors is not transferred to
the United States except pursuant to the Congressional
review procedures required under section 131 f. of the
Atomic Energy Act of 1954 (42 U.S.C. 2160 (f)).
(7) Pending implementation of the multilateral
moratorium described in paragraph (1) or the treaty
described in paragraph (2), encourage India not to
increase its production of fissile material at
unsafeguarded nuclear facilities.
(8) Ensure that any safeguards agreement or
Additional Protocol to which India is a party with the
IAEA can reliably safeguard any export or reexport to
India of any nuclear materials and equipment.
(9) Ensure that the text and implementation of any
agreement for cooperation with India arranged pursuant
to section 123 of the Atomic Energy Act of 1954 (42
U.S.C. 2153) meet the requirements set forth in
subsections a.(1) and a.(3) through a.(9) of such
section.
(10) Any nuclear power reactor fuel reserve
provided to the Government of India for use in
safeguarded civilian nuclear facilities should be
commensurate with reasonable reactor operating
requirements.
SEC. 104. WAIVER AUTHORITY AND CONGRESSIONAL APPROVAL.
(a) In General.--If the President makes the determination
described in subsection (b), the President may--
(1) exempt a proposed agreement for cooperation
with India arranged pursuant to section 123 of the
Atomic Energy Act of 1954 (42 U.S.C. 2153) from the
requirement of subsection a.(2) of such section;
(2) waive the application of section 128 of the
Atomic Energy Act of 1954 (42 U.S.C. 2157) with respect
to exports to India; and
(3) waive with respect to India the application
of--
(A) section 129 a.(1)(D) of the Atomic
Energy Act of 1954 (42 U.S.C. 2158(a)(1)(D));
and
(B) section 129 of such Act (42 U.S.C.
2158) regarding any actions that occurred
before July 18, 2005.
(b) Determination by the President.--The determination
referred to in subsection (a) is a determination by the
President that the following actions have occurred:
(1) India has provided the United States and the
IAEA with a credible plan to separate civil and
military nuclear facilities, materials, and programs,
and has filed a declaration regarding its civil
facilities and materials with the IAEA.
(2) India and the IAEA have concluded all legal
steps required prior to signature by the parties of an
agreement requiring the application of IAEA safeguards
in perpetuity in accordance with IAEA standards,
principles, and practices (including IAEA Board of
Governors Document GOV/1621 (1973)) to India's civil
nuclear facilities, materials, and programs as declared
in the plan described in paragraph (1), including
materials used in or produced through the use of
India's civil nuclear facilities.
(3) India and the IAEA are making substantial
progress toward concluding an Additional Protocol
consistent with IAEA principles, practices, and
policies that would apply to India's civil nuclear
program.
(4) India is working actively with the United
States for the early conclusion of a multilateral
treaty on the cessation of the production of fissile
materials for use in nuclear weapons or other nuclear
explosive devices.
(5) India is working with and supporting United
States and international efforts to prevent the spread
of enrichment and reprocessing technology to any state
that does not already possess full-scale, functioning
enrichment or reprocessing plants.
(6) India is taking the necessary steps to secure
nuclear and other sensitive materials and technology,
including through--
(A) the enactment and effective enforcement
of comprehensive export control legislation and
regulations;
(B) harmonization of its export control
laws, regulations, policies, and practices with
the guidelines and practices of the Missile
Technology Control Regime (MTCR) and the NSG;
and
(C) adherence to the MTCR and the NSG in
accordance with the procedures of those regimes
for unilateral adherence.
(7) The NSG has decided by consensus to permit
supply to India of nuclear items covered by the
guidelines of the NSG.
(c) Submission to Congress.--
(1) In general.--The President shall submit to the
appropriate congressional committees the determination
made pursuant to subsection (b), together with a report
detailing the basis for the determination.
(2) Information to be included.--To the fullest
extent available to the United States, the report
referred to in paragraph (1) shall include the
following information:
(A) A summary of the plan provided by India
to the United States and the IAEA to separate
India's civil and military nuclear facilities,
materials, and programs, and the declaration
made by India to the IAEA identifying India's
civil facilities to be placed under IAEA
safeguards, including an analysis of the
credibility of such plan and declaration,
together with copies of the plan and
declaration.
(B) A summary of the agreement that has
been entered into between India and the IAEA
requiring the application of safeguards in
accordance with IAEA practices to India's civil
nuclear facilities as declared in the plan
described in subparagraph (A), together with a
copy of the agreement, and a description of the
progress toward its full implementation.
(C) A summary of the progress made toward
conclusion and implementation of an Additional
Protocol between India and the IAEA, including
a description of the scope of such Additional
Protocol.
(D) A description of the steps that India
is taking to work with the United States for
the conclusion of a multilateral treaty banning
the production of fissile material for nuclear
weapons, including a description of the steps
that the United States has taken and will take
to encourage India to identify and declare a
date by which India would be willing to stop
production of fissile material for nuclear
weapons unilaterally or pursuant to a
multilateral moratorium or treaty.
(E) A description of the steps India is
taking to prevent the spread of nuclear-related
technology, including enrichment and
reprocessing technology or materials that can
be used to acquire a nuclear weapons
capability, as well as the support that India
is providing to the United States to further
United States objectives to restrict the spread
of such technology.
(F) A description of the steps that India
is taking to secure materials and technology
applicable for the development, acquisition, or
manufacture of weapons of mass destruction and
the means to deliver such weapons through the
application of comprehensive export control
legislation and regulations, and through
harmonization with and adherence to MTCR, NSG,
Australia Group, and Wassenaar Arrangement
guidelines, compliance with United Nations
Security Council Resolution 1540, and
participation in the Proliferation Security
Initiative.
(G) A description and assessment of the
specific measures that India has taken to fully
and actively participate in United States and
international efforts to dissuade, isolate,
and, if necessary, sanction and contain Iran
for its efforts to acquire weapons of mass
destruction, including a nuclear weapons
capability and the capability to enrich uranium
or reprocess nuclear fuel and the means to
deliver weapons of mass destruction.
(H) A description of the decision of the
NSG relating to nuclear cooperation with India,
including whether nuclear cooperation by the
United States under an agreement for
cooperation arranged pursuant to section 123 of
the Atomic Energy Act of 1954 (42 U.S.C. 2153)
is consistent with the decision, practices, and
policies of the NSG.
(I) A description of the scope of peaceful
cooperation envisioned by the United States and
India that will be implemented under the
agreement for nuclear cooperation, including
whether such cooperation will include the
provision of enrichment and reprocessing
technology.
(J) A description of the steps taken to
ensure that proposed United States civil
nuclear cooperation with India will not in any
way assist India's nuclear weapons program.
(d) Restrictions on Nuclear Transfers.--
(1) In general.--Pursuant to the obligations of the
United States under Article I of the NPT, nothing in
this title constitutes authority to carry out any civil
nuclear cooperation between the United States and a
country that is not a nuclear-weapon State Party to the
NPT that would in any way assist, encourage, or induce
that country to manufacture or otherwise acquire
nuclear weapons or nuclear explosive devices.
(2) NSG transfer guidelines.--Notwithstanding the
entry into force of an agreement for cooperation with
India arranged pursuant to section 123 of the Atomic
Energy Act of 1954 (42 U.S.C. 2153) and pursuant to
this title, no item subject to such agreement or
subject to the transfer guidelines of the NSG, or to
NSG decisions related thereto, may be transferred to
India if such transfer would be inconsistent with the
transfer guidelines of the NSG in effect on the date of
the transfer.
(3) Termination of nuclear transfers to india.--
(A) In general.--Notwithstanding the entry
into force of an agreement for cooperation with
India arranged pursuant to section 123 of the
Atomic Energy Act of 1954 (42 U.S.C. 2153) and
pursuant to this title, and except as provided
under subparagraph (B), exports of nuclear and
nuclear-related material, equipment, or
technology to India shall be terminated if
there is any materially significant transfer by
an Indian person of--
(i) nuclear or nuclear-related
material, equipment, or technology that
is not consistent with NSG guidelines
or decisions, or
(ii) ballistic missiles or missile-
related equipment or technology that is
not consistent with MTCR guidelines,
unless the President determines that cessation
of such exports would be seriously prejudicial
to the achievement of United States
nonproliferation objectives or otherwise
jeopardize the common defense and security.
(B) Exception.--The President may choose
not to terminate exports of nuclear and
nuclear-related material, equipment, and
technology to India under subparagraph (A) if--
(i) the transfer covered under such
subparagraph was made without the
knowledge of the Government of India;
(ii) at the time of the transfer,
either the Government of India did not
own, control, or direct the Indian
person that made the transfer or the
Indian person that made the transfer is
a natural person who acted without the
knowledge of any entity described in
subparagraph (B) or (C) of section
110(5); and
(iii) the President certifies to
the appropriate congressional
committees that the Government of India
has taken or is taking appropriate
judicial or other enforcement actions
against the Indian person with respect
to such transfer.
(4) Exports, reexports, transfers, and retransfers
to india related to enrichment, reprocessing, and heavy
water production.--
(A) In general.--
(i) Nuclear regulatory
commission.--The Nuclear Regulatory
Commission may only issue licenses for
the export or reexport to India of any
equipment, components, or materials
related to the enrichment of uranium,
the reprocessing of spent nuclear fuel,
or the production of heavy water if the
requirements of subparagraph (B) are
met.
(ii) Secretary of energy.--The
Secretary of Energy may only issue
authorizations for the transfer or
retransfer to India of any equipment,
materials, or technology related to the
enrichment of uranium, the reprocessing
of spent nuclear fuel, or the
production of heavy water (including
under the terms of a subsequent
arrangement under section 131 of the
Atomic Energy Act of 1954 (42 U.S.C.
2160)) if the requirements of
subparagraph (B) are met.
(B) Requirements for approvals.--Exports,
reexports, transfers, and retransfers referred
to in subparagraph (A) may only be approved
if--
(i) the end user--
(I) is a multinational
facility participating in an
IAEA-approved program to
provide alternatives to
national fuel cycle
capabilities; or
(II) is a facility
participating in, and the
export, reexport, transfer, or
retransfer is associated with,
a bilateral or multinational
program to develop a
proliferation-resistant fuel
cycle;
(ii) appropriate measures are in
place at any facility referred to in
clause (i) to ensure that no sensitive
nuclear technology, as defined in
section 4(5) of the Nuclear
Nonproliferation Act of 1978 (22 U.S.C.
3203(5)), will be diverted to any
person, site, facility, location, or
program not under IAEA safeguards; and
(iii) the President determines
that the export, reexport, transfer, or
retransfer will not assist in the
manufacture or acquisition of nuclear
explosive devices or the production of
fissile material for military purposes.
(5) Nuclear export accountability program.--
(A) In general.--The President shall ensure
that all appropriate measures are taken to
maintain accountability with respect to nuclear
materials, equipment, and technology sold,
leased, exported, or reexported to India so as
to ensure--
(i) full implementation of the
protections required under section 123
a.(1) of the Atomic Energy Act of 1954
(42 U.S.C. 2153 (a)(1)); and
(ii) United States compliance with
Article I of the NPT.
(B) Measures.--The measures taken pursuant
to subparagraph (A) shall include the
following:
(i) Obtaining and implementing
assurances and conditions pursuant to
the export licensing authorities of the
Nuclear Regulatory Commission and the
Department of Commerce and the
authorizing authorities of the
Department of Energy, including, as
appropriate, conditions regarding end-
use monitoring.
(ii) A detailed system of reporting
and accounting for technology
transfers, including any retransfers in
India, authorized by the Department of
Energy pursuant to section 57 b. of the
Atomic Energy Act of 1954 (42 U.S.C.
2077(b)). Such system shall be capable
of providing assurances that--
(I) the identified
recipients of the nuclear
technology are authorized to
receive the nuclear technology;
(II) the nuclear technology
identified for transfer will be
used only for peaceful
safeguarded nuclear activities
and will not be used for any
military or nuclear explosive
purpose; and
(III) the nuclear
technology identified for
transfer will not be
retransferred without the prior
consent of the United States,
and facilities, equipment, or
materials derived through the
use of transferred technology
will not be transferred without
the prior consent of the United
States.
(iii) In the event the IAEA is
unable to implement safeguards as
required by an agreement for
cooperation arranged pursuant to
section 123 of the Atomic Energy Act of
1954 (42 U.S.C. 2153), appropriate
assurance that arrangements will be put
in place expeditiously that are
consistent with the requirements of
section 123 a.(1) of such Act (42
U.S.C. 2153(a)(1)) regarding the
maintenance of safeguards as set forth
in the agreement regardless of whether
the agreement is terminated or
suspended for any reason.
(C) Implementation.--The measures described
in subparagraph (B) shall be implemented to
provide reasonable assurances that the
recipient is complying with the relevant
requirements, terms, and conditions of any
licenses issued by the United States regarding
such exports, including those relating to the
use, retransfer, safe handling, secure transit,
and storage of such exports.
(e) Joint Resolution of Approval Requirement.--Section 123
d. of the Atomic Energy Act of 1954 (42 U.S.C. 2153(d)) is
amended in the second proviso by inserting after ``that
subsection'' the following: ``, or an agreement exempted
pursuant to section 104(a)(1) of the Henry J. Hyde United
States-India Peaceful Atomic Energy Cooperation Act of 2006,''.
(f) Sunset.--The authority provided under subsection (a)(1)
to exempt an agreement shall terminate upon the enactment of a
joint resolution under section 123 d. of the Atomic Energy Act
of 1954 (42 U.S.C. 2153(d)) approving such an agreement.
(g) Reporting to Congress.--
(1) Information on nuclear activities of india.--
The President shall keep the appropriate congressional
committees fully and currently informed of the facts
and implications of any significant nuclear activities
of India, including--
(A) any material noncompliance on the part
of the Government of India with--
(i) the nonproliferation
commitments undertaken in the Joint
Statement of July 18, 2005, between the
President of the United States and the
Prime Minister of India;
(ii) the separation plan presented
in the national parliament of India on
March 7, 2006, and in greater detail on
May 11, 2006;
(iii) a safeguards agreement
between the Government of India and the
IAEA;
(iv) an Additional Protocol between
the Government of India and the IAEA;
(v) an agreement for cooperation
between the Government of India and the
United States Government arranged
pursuant to section 123 of the Atomic
Energy Act of 1954 (42 U.S.C. 2153) or
any subsequent arrangement under
section 131 of such Act (42 U.S.C.
2160);
(vi) the terms and conditions of
any approved licenses regarding the
export or reexport of nuclear material
or dual-use material, equipment, or
technology; and
(vii) United States laws and
regulations regarding such licenses;
(B) the construction of a nuclear facility
in India after the date of the enactment of
this title;
(C) significant changes in the production
by India of nuclear weapons or in the types or
amounts of fissile material produced; and
(D) changes in the purpose or operational
status of any unsafeguarded nuclear fuel cycle
activities in India.
(2) Implementation and compliance report.--Not
later than 180 days after the date on which an
agreement for cooperation with India arranged pursuant
to section 123 of the Atomic Energy Act of 1954 (42
U.S.C. 2153) enters into force, and annually
thereafter, the President shall submit to the
appropriate congressional committees a report
including--
(A) a description of any additional nuclear
facilities and nuclear materials that the
Government of India has placed or intends to
place under IAEA safeguards;
(B) a comprehensive listing of--
(i) all licenses that have been
approved by the Nuclear Regulatory
Commission and the Secretary of Energy
for exports and reexports to India
under parts 110 and 810 of title 10,
Code of Federal Regulations;
(ii) any licenses approved by the
Department of Commerce for the export
or reexport to India of commodities,
related technology, and software which
are controlled for nuclear
nonproliferation reasons on the Nuclear
Referral List of the Commerce Control
List maintained under part 774 of title
15, Code of Federal Regulation, or any
successor regulation;
(iii) any other United States
authorizations for the export or
reexport to India of nuclear materials
and equipment; and
(iv) with respect to each such
license or other form of authorization
described in clauses (i), (ii), and
(iii)--
(I) the number or other
identifying information of each
license or authorization;
(II) the name or names of
the authorized end user or end
users;
(III) the name of the site,
facility, or location in India
to which the export or reexport
was made;
(IV) the terms and
conditions included on such
licenses and authorizations;
(V) any post-shipment
verification procedures that
will be applied to such exports
or reexports; and
(VI) the term of validity
of each such license or
authorization;
(C) a description of any significant
nuclear commerce between India and other
countries, including any such trade that--
(i) is not consistent with
applicable guidelines or decisions of
the NSG; or
(ii) would not meet the standards
applied to exports or reexports of such
material, equipment, or technology of
United States origin;
(D) either--
(i) an assessment that India is in
full compliance with the commitments
and obligations contained in the
agreements and other documents
referenced in clauses (i) through (vi)
of paragraph (1)(A); or
(ii) an identification and analysis
of all compliance issues arising with
regard to the adherence by India to its
commitments and obligations,
including--
(I) the measures the United
States Government has taken to
remedy or otherwise respond to
such compliance issues;
(II) the responses of the
Government of India to such
measures;
(III) the measures the
United States Government plans
to take to this end in the
coming year; and
(IV) an assessment of the
implications of any continued
noncompliance, including
whether nuclear commerce with
India remains in the national
security interest of the United
States;
(E)(i) an assessment of whether India is
fully and actively participating in United
States and international efforts to dissuade,
isolate, and, if necessary, sanction and
contain Iran for its efforts to acquire weapons
of mass destruction, including a nuclear
weapons capability (including the capability to
enrich uranium or reprocess nuclear fuel), and
the means to deliver weapons of mass
destruction, including a description of the
specific measures that India has taken in this
regard; and
(ii) if India is not assessed to be fully
and actively participating in such efforts, a
description of--
(I) the measures the United States
Government has taken to secure India's
full and active participation in such
efforts;
(II) the responses of the
Government of India to such measures;
and
(III) the measures the United
States Government plans to take in the
coming year to secure India's full and
active participation;
(F) an analysis of whether United States
civil nuclear cooperation with India is in any
way assisting India's nuclear weapons program,
including through--
(i) the use of any United States
equipment, technology, or nuclear
material by India in an unsafeguarded
nuclear facility or nuclear-weapons
related complex;
(ii) the replication and subsequent
use of any United States technology by
India in an unsafeguarded nuclear
facility or unsafeguarded nuclear
weapons-related complex, or for any
activity related to the research,
development, testing, or manufacture of
nuclear explosive devices; and
(iii) the provision of nuclear fuel
in such a manner as to facilitate the
increased production by India of highly
enriched uranium or plutonium in
unsafeguarded nuclear facilities;
(G) a detailed description of--
(i) United States efforts to
promote national or regional progress
by India and Pakistan in disclosing,
securing, limiting, and reducing their
fissile material stockpiles, including
stockpiles for military purposes,
pending creation of a worldwide fissile
material cut-off regime, including the
institution of a Fissile Material Cut-
off Treaty;
(ii) the responses of India and
Pakistan to such efforts; and
(iii) assistance that the United
States is providing, or would be able
to provide, to India and Pakistan to
promote the objectives in clause (i),
consistent with its obligations under
international law and existing
agreements;
(H) an estimate of--
(i) the amount of uranium mined and
milled in India during the previous
year;
(ii) the amount of such uranium
that has likely been used or allocated
for the production of nuclear explosive
devices; and
(iii) the rate of production in
India of--
(I) fissile material for
nuclear explosive devices; and
(II) nuclear explosive
devices;
(I) an estimate of the amount of
electricity India's nuclear reactors produced
for civil purposes during the previous year and
the proportion of such production that can be
attributed to India's declared civil reactors;
(J) an analysis as to whether imported
uranium has affected the rate of production in
India of nuclear explosive devices;
(K) a detailed description of efforts and
progress made toward the achievement of
India's--
(i) full participation in the
Proliferation Security Initiative;
(ii) formal commitment to the
Statement of Interdiction Principles of
such Initiative;
(iii) public announcement of its
decision to conform its export control
laws, regulations, and policies with
the Australia Group and with the
Guidelines, Procedures, Criteria, and
Controls List of the Wassenaar
Arrangement; and
(iv) effective implementation of
the decision described in clause (iii);
and
(L) the disposal during the previous year
of spent nuclear fuel from India's civilian
nuclear program, and any plans or activities
relating to future disposal of such spent
nuclear fuel.
(3) Submittal with other annual reports.--
(A) Report on proliferation prevention.--
Each annual report submitted under paragraph
(2) after the initial report may be submitted
together with the annual report on
proliferation prevention required under section
601(a) of the Nuclear Non-Proliferation Act of
1978 (22 U.S.C. 3281(a)).
(B) Report on progress toward regional
nonproliferation.--The information required to
be submitted under paragraph (2)(F) after the
initial report may be submitted together with
the annual report on progress toward regional
nonproliferation required under section 620F(c)
of the Foreign Assistance Act of 1961 (22
U.S.C. 2376(c)).
(4) Form.--Each report submitted under this
subsection shall be submitted in unclassified form, but
may contain a classified annex.
SEC. 105. UNITED STATES COMPLIANCE WITH ITS NUCLEAR NONPROLIFERATION
TREATY OBLIGATIONS.
Nothing in this title constitutes authority for any action
in violation of an obligation of the United States under the
NPT.
SEC. 106. INOPERABILITY OF DETERMINATION AND WAIVERS.
A determination and any waiver under section 104 shall
cease to be effective if the President determines that India
has detonated a nuclear explosive device after the date of the
enactment of this title.
SEC. 107. MTCR ADHERENT STATUS.
Congress finds that India is not an MTCR adherent for the
purposes of section 73 of the Arms Export Control Act (22
U.S.C. 2797b).
SEC. 108. TECHNICAL AMENDMENT.
Section 1112(c)(4) of the Arms Control and Nonproliferation
Act of 1999 (title XI of the Admiral James W. Nance and Meg
Donovan Foreign Relations Authorization Act, Fiscal Years 2000
and 2001 (as enacted into law by section 1000(a)(7) of Public
Law 106-113 and contained in appendix G of that Act; 113 Stat.
1501-486)) is amended--
(1) in subparagraph (B), by striking ``and'' after
the semicolon at the end;
(2) by redesignating subparagraph (C) as
subparagraph (D); and
(3) by inserting after subparagraph (B) the
following new subparagraph:
``(C) so much of the reports required under
section 104 of the Henry J. Hyde United States-
India Peaceful Atomic Energy Cooperation Act of
2006 as relates to verification or compliance
matters; and''.
SEC. 109. UNITED STATES-INDIA SCIENTIFIC COOPERATIVE NUCLEAR
NONPROLIFERATION PROGRAM.
(a) Establishment.--The Secretary of Energy, acting through
the Administrator of the National Nuclear Security
Administration, is authorized to establish a cooperative
nuclear nonproliferation program to pursue jointly with
scientists from the United States and India a program to
further common nuclear nonproliferation goals, including
scientific research and development efforts, with an emphasis
on nuclear safeguards (in this section referred to as ``the
program'').
(b) Consultation.--The program shall be carried out in
consultation with the Secretary of State and the Secretary of
Defense.
(c) National Academies Recommendations.--
(1) In general.--The Secretary of Energy shall
enter into an agreement with the National Academies to
develop recommendations for the implementation of the
program.
(2) Recommendations.--The agreement entered into
under paragraph (1) shall provide for the preparation
by qualified individuals with relevant expertise and
knowledge and the communication to the Secretary of
Energy each fiscal year of--
(A) recommendations for research and
related programs designed to overcome existing
technological barriers to nuclear
nonproliferation; and
(B) an assessment of whether activities and
programs funded under this section are
achieving the goals of the activities and
programs.
(3) Public availability.--The recommendations and
assessments prepared under this subsection shall be
made publicly available.
(d) Consistency With Nuclear Non-Proliferation Treaty.--All
United States activities related to the program shall be
consistent with United States obligations under the Nuclear
Non-Proliferation Treaty.
(e) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this section for each of fiscal years 2007 through 2011.
SEC. 110. DEFINITIONS.
In this title:
(1) The term ``Additional Protocol'' means a
protocol additional to a safeguards agreement with the
IAEA, as negotiated between a country and the IAEA
based on a Model Additional Protocol as set forth in
IAEA information circular (INFCIRC) 540.
(2) The term ``appropriate congressional
committees'' means the Committee on Foreign Relations
of the Senate and the Committee on International
Relations of the House of Representatives.
(3) The term ``dual-use material, equipment, or
technology'' means material, equipment, or technology
that may be used in nuclear or nonnuclear applications.
(4) The term ``IAEA safeguards'' has the meaning
given the term in section 830(3) of the Nuclear
Proliferation Prevention Act of 1994 (22 U.S.C.
6305(3)).
(5) The term ``Indian person'' means--
(A) a natural person that is a citizen of
India or is subject to the jurisdiction of the
Government of India;
(B) a corporation, business association,
partnership, society, trust, or any other
nongovernmental entity, organization, or group,
that is organized under the laws of India or
has its principal place of business in India;
and
(C) any Indian governmental entity,
including any governmental entity operating as
a business enterprise.
(6) The terms ``Missile Technology Control
Regime'', ``MTCR'', and ``MTCR adherent'' have the
meanings given the terms in section 74 of the Arms
Export Control Act (22 U.S.C. 2797c).
(7) The term ``nuclear materials and equipment''
means source material, special nuclear material,
production and utilization facilities and any
components thereof, and any other items or materials
that are determined to have significance for nuclear
explosive purposes pursuant to subsection 109 b. of the
Atomic Energy Act of 1954 (42 U.S.C. 2139(b)).
(8) The terms ``Nuclear Non-Proliferation Treaty''
and ``NPT'' mean 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).
(9) The terms ``Nuclear Suppliers Group'' and
``NSG'' refer to a group, which met initially in 1975
and has met at least annually since 1992, of
Participating Governments that have promulgated and
agreed to adhere to Guidelines for Nuclear Transfers
(currently IAEA INFCIRC/254/Rev.8/Part 1) and
Guidelines for Transfers of Nuclear-Related Dual-Use
Equipment, Materials, Software, and Related Technology
(currently IAEA INFCIRC/254/Rev.7/Part 2).
(10) The terms ``nuclear weapon'' and ``nuclear
explosive device'' mean any device designed to produce
an instantaneous release of an amount of nuclear energy
from special nuclear material that is greater than the
amount of energy that would be released from the
detonation of one point of trinitrotoluene (TNT).
(11) The term ``process'' includes the term
``reprocess''.
(12) The terms ``reprocessing'' and ``reprocess''
refer to the separation of irradiated nuclear materials
and fission products from spent nuclear fuel.
(13) The term ``sensitive nuclear technology''
means any information, including information
incorporated in a production or utilization facility or
important component part thereof, that is not available
to the public and which is important to the design,
construction, fabrication, operation, or maintenance of
a uranium enrichment or nuclear fuel reprocessing
facility or a facility for the production of heavy
water.
(14) The term ``source material'' has the meaning
given the term in section 11 z. of the Atomic Energy
Act of 1954 (42 U.S.C. 2014(z)).
(15) The term ``special nuclear material'' has the
meaning given the term in section 11 aa. of the Atomic
Energy Act of 1954 (42 U.S.C. 2014(aa)).
(16) The term ``unsafeguarded nuclear fuel-cycle
activity'' means research on, or development, design,
manufacture, construction, operation, or maintenance
of--
(A) any existing or future reactor,
critical facility, conversion plant,
fabrication plant, reprocessing plant, plant
for the separation of isotopes of source or
special fissionable material, or separate
storage installation with respect to which
there is no obligation to accept IAEA
safeguards at the relevant reactor, facility,
plant, or installation that contains source or
special fissionable material; or
(B) any existing or future heavy water
production plant with respect to which there is
no obligation to accept IAEA safeguards on any
nuclear material produced by or used in
connection with any heavy water produced
therefrom.
TITLE II--UNITED STATES ADDITIONAL PROTOCOL IMPLEMENTATION
SEC. 201. SHORT TITLE.
This title may be cited as the ``United States Additional
Protocol Implementation Act''.
SEC. 202. FINDINGS.
Congress makes the following findings:
(1) 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.
(2) The Nuclear Non-Proliferation Treaty has proven
critical to limiting such proliferation.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) 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.
(10) 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.
SEC. 203. DEFINITIONS.
In this title:
(1) 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. 107-097).
(2) 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, the Committee on
Science, and the Committee on Appropriations of the
House of Representatives.
(3) 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.
(4) Executive agency.--The term ``executive
agency'' has the meaning given such term in section 105
of title 5, United States Code.
(5) Facility.--The term ``facility'' has the
meaning set forth in Article 18i. of the Additional
Protocol.
(6) IAEA.--The term ``IAEA'' means the
International Atomic Energy Agency.
(7) 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.
(8) 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.
(9) 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).
(10) 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.
(11) 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.
(12) Site.--The term ``site'' has the meaning set
forth in Article 18b. of the Additional Protocol.
(13) 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--
(A) the territorial sea and the overlying
airspace;
(B) 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
(C) 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)).
(14) Wide-area environmental sampling.--The term
``wide-area environmental sampling'' has the meaning
set forth in Article 18g. of the Additional Protocol.
SEC. 204. SEVERABILITY.
If any provision of this title, or the application of such
provision to any person or circumstance, is held invalid, the
remainder of this title, 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.
Subtitle A--General Provisions
SEC. 211. AUTHORITY.
(a) In General.--The President is authorized to implement
and carry out the provisions of this title 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 title 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.
Subtitle B--Complementary Access
SEC. 221. 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
title.
(b) Authority.--
(1) In general.--Complementary access to any
location in the United States subject to access under
the Additional Protocol is authorized in accordance
with this title.
(2) United states representatives.--
(A) 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.
(B) Number.--The number of designated
United States representatives accompanying IAEA
inspectors shall be kept to the minimum
necessary.
SEC. 222. 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 subtitle.
(b) Notice.--
(1) 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.
(2) 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.
(3) Content of notice.--
(A) In general.--The notice required by
paragraph (1) shall specify--
(i) the purpose for the
complementary access;
(ii) the basis for the selection of
the facility, site, or other location
for the complementary access sought;
(iii) the activities that will be
carried out during the complementary
access;
(iv) the time and date that the
complementary access is expected to
begin, and the anticipated period
covered by the complementary access;
and
(v) the names and titles of the
inspectors.
(4) Separate notices required.--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.--
(1) In general.--Except as provided in a warrant
issued under section 223, 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 title may extend
to all activities specifically permitted for such
locations under Article 6 of the Additional Protocol.
(2) Exception.--Unless required by the Additional
Protocol, no inspection under this title shall extend
to--
(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.
(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.
SEC. 223. CONSENTS, WARRANTS, AND COMPLEMENTARY ACCESS.
(a) In General.--
(1) Procedure.--
(A) 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 221 and 222. The
owner, operator, occupant, or agent in charge
of the location may withhold consent for any
reason or no reason.
(B) 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.
(2) 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.
(b) Administrative Search Warrants for Complementary
Access.--
(1) 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.
(2) 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--
(A) stating that the Additional Protocol is
in force;
(B) stating that the designated facility,
site, or other location is subject to
complementary access under the Additional
Protocol;
(C) stating that the purpose of the
complementary access is consistent with Article
4 of the Additional Protocol;
(D) stating that the requested
complementary access is in accordance with
Article 4 of the Additional Protocol;
(E) 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;
(F) listing the items, documents, and areas
to be searched and seized;
(G) 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
(H) stating that the location to which
entry in connection with complementary access
is sought was selected either--
(i) 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 title is
incorrect or incomplete, and that the
location to be accessed contains
evidence regarding that violation; or
(ii) pursuant to a reasonable
general administrative plan based upon
specific neutral criteria.
(3) 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 222(c).
SEC. 224. 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 subtitle or an entry in
connection with such access.
Subtitle C--Confidentiality of Information
SEC. 231. PROTECTION OF CONFIDENTIALITY OF INFORMATION.
Information reported to, or otherwise acquired by, the
United States Government under this title or under the
Additional Protocol shall be exempt from disclosure under
section 552 of title 5, United States Code.
Subtitle D--Enforcement
SEC. 241. RECORDKEEPING VIOLATIONS.
It shall be unlawful for any person willfully to fail or
refuse--
(1) to establish or maintain any record required by
any regulation prescribed under this title;
(2) to submit any report, notice, or other
information to the United States Government in
accordance with any regulation prescribed under this
title; or
(3) to permit access to or copying of any record by
the United States Government in accordance with any
regulation prescribed under this title.
SEC. 242. PENALTIES.
(a) Civil.--
(1) Penalty amounts.--Any person that is
determined, in accordance with paragraph (2), to have
violated section 224 or section 241 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 224 continues shall constitute a separate
violation of that section.
(2) Notice and hearing.--
(A) In general.--Before imposing a penalty
against a person under paragraph (1), the head
of an executive agency designated under section
211(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.
(B) 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.
(C) 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 224 or section 241, 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).
(D) 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.
(E) 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--
(i) set forth the time, date, and
specific nature of the alleged
violation or violations; and
(ii) 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.
(3) 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.
(4) 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.
(5) Enforcement of final orders.--
(A) In general.--If a person fails to
comply with a final order issued against such
person under this subsection and--
(i) the person has not filed a
petition for judicial review of the
order in accordance with paragraph (4),
or
(ii) 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.
(B) No review.--In any such civil action,
the validity and appropriateness of the final
order shall not be subject to review.
(C) 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.
(b) Criminal.--Any person who violates section 224 or
section 241 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.
SEC. 243. 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 211(a)--
(1) to restrain any conduct in violation of section
224 or section 241; or
(2) to compel the taking of any action required by
or under this title or the Additional Protocol.
(b) Civil Actions.--
(1) In general.--A civil action described in
subsection (a) may be brought--
(A) 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
224 or section 241 occurred or in which the
defendant is found or transacts business; or
(B) 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.
(2) Service of process.--In any such civil action,
process shall be served on a defendant wherever the
defendant may reside or may be found.
Subtitle E--Environmental Sampling
SEC. 251. 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--
(1) 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;
(2) a statement as to whether or not such sampling
may be conducted in the United States under the
Additional Protocol; and
(3) 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.
SEC. 252. 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--
(1) 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;
(2) 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
(3) the United States--
(A) has been provided sufficient
opportunity for consultation with the IAEA if
the IAEA has requested complementary access
involving wide-area environmental sampling; or
(B) 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.
SEC. 253. 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--
(1) 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;
(2) 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
(3) with respect to the proposed use of
environmental sampling, the United States--
(A) has been provided sufficient
opportunity for consultation with the IAEA if
the IAEA has requested complementary access
involving location-specific environmental
sampling; or
(B) 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.
SEC. 254. RULE OF CONSTRUCTION.
As used in this subtitle, 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--
(1) setting a good example of cooperation in the
conduct of such sampling; or
(2) facilitating the formation of a political
consensus or political support for such sampling in the
territory of a non-nuclear-weapon State Party.
Subtitle F--Protection of National Security Information and Activities
SEC. 261. 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 title 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.
SEC. 262. IAEA INSPECTIONS AND VISITS.
(a) Certain Individuals Prohibited From Obtaining Access.--
No national of a country designated by the Secretary of State
under section 620A of the Foreign Assistance Act of 1961 (22
U.S.C. 2371) 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.
Subtitle G--Reports
SEC. 271. 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.
SEC. 272. 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.
SEC. 273. CONTENT OF REPORTS ON UNITED STATES DECLARATIONS.
The reports required under section 271 and section 272
shall present the reasons for each site, location, facility,
and activity being declared or being removed from the
declaration list and shall certify that--
(1) 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
(2) 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.
SEC. 274. 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--
(1) 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
(2) 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.
SEC. 275. 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.
Subtitle H--Authorization of Appropriations
SEC. 281. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title.
And the Senate agree to the same.
Henry Hyde,
John Boehner,
Tom Lantos,
Managers on the Part of the House.
Richard G. Lugar,
Chuck Hagel,
George Allen,
Bill Frist,
Joe Biden,
Chris Dodd,
Managers on the Part of the Senate.
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE
The managers on the part of the House and the Senate at
the conference on the disagreeing votes of the two Houses on
the amendment of the Senate to the bill (H.R. 5682), to exempt
from certain requirements of the Atomic Energy Act of 1954 a
proposed nuclear agreement for cooperation with India, submit
the following joint statement to the House and the Senate in
explanation of the effect of the action agreed upon by the
managers and recommended in the accompanying conference report:
The Senate amendment struck all of the House bill after
the enacting clause and inserted a substitute text.
The House recedes from its disagreement to the amendment
of the Senate with an amendment that is a substitute for the
House bill and the Senate amendment. The differences between
the House bill, the Senate amendment, and the substitute agreed
to in conference are noted below, except for clerical
corrections, conforming changes made necessary by agreements
reached by the conferees, and minor drafting and clarifying
changes.
Background and Need for the Legislation
With the fading of the Cold War's global divisions and
the rise of new challenges such as globalization and trans-
national terrorism, there is increasing recognition in both the
United States and in India that significant benefits may be
obtained from closer cooperation across a broad spectrum of
activities and policies. These range from shared strategic
interests, such as enhanced stability and security in South
Asia and the international system as a whole, to more specific
priorities, including greater effectiveness in combating the
AIDS epidemic, combating terrorism, and preventing the
proliferation of weapons of mass destruction, among others.
To that end, on July 18, 2005, President Bush and Indian
Prime Minister Manmohan Singh issued a joint statement
announcing a `global partnership' between the two countries.
The Joint Statement covered a range of issues and common
interests, including the re-establishment of civil nuclear
commerce between the United States and India.
In the Joint Statement, India committed to placing more
of its civil nuclear facilities under International Atomic
Energy Agency (IAEA) safeguards in perpetuity, signing and
adhering to an Additional Protocol with respect to civilian
nuclear facilities, working with the United States for the
conclusion of a multilateral Fissile Material Cutoff Treaty,
refraining from transfer of enrichment and reprocessing
technologies to states that do not have them and supporting
international efforts to limit their spread, ensuring that the
necessary steps have been taken to secure nuclear materials and
technology through comprehensive export control legislation and
through harmonization and adherence to Missile Technology
Control Regime (MTCR) and Nuclear Suppliers Group (NSG)
guidelines, and continuing its moratorium on further nuclear
testing.
For the United States, President Bush committed that he
would ``work to achieve full civil nuclear energy cooperation
with India as it realizes its goals of promoting nuclear power
and achieving energy security'' and to ``seek agreement from
Congress to adjust U.S. laws and policies'' to permit that
cooperation. President Bush also promised to ``work with
friends and allies to adjust international regimes to enable
full civil nuclear energy cooperation and trade with India,
including but not limited to expeditious consideration of fuel
supplies for safeguarded nuclear reactors at Tarapur.''
The Administration's proposed legislation envisioned
Congress granting the President the authority to waive certain
provisions of the Atomic Energy Act of 1954 (AEA) that contain
restrictions on cooperation that the Administration deemed to
be impediments to conducting civil nuclear cooperation with
India. Section 123 a.(2) of the AEA requires that a non-nuclear
weapon state have IAEA safeguards on all nuclear material in
all peaceful nuclear activities in that state, under its
jurisdiction, or carried out under its control anywhere
(commonly referred to as ``full-scope safeguards'') as a
condition of continued United States nuclear supply and
approval for new nuclear cooperation agreements, a requirement
that India does not meet and, as a state with nuclear weapons,
would be unlikely to meet for the foreseeable future. Section
128 requires a non-nuclear weapon state (under the NPT, which
recognizes only five ``Nuclear Weapon States''--Russia, France,
China, the United Kingdom, and the United States) to have full-
scope safeguards as a prerequisite for receiving U.S. civil
nuclear exports. Finally, Section 129 requires the termination
of nuclear exports if a non-nuclear weapon state has, among
other things, tested nuclear weapons after 1978, which India
did in 1998. There are waivers available to the President for
these provisions in existing law. But the standard for such
waivers is very high.
In addition, international civil nuclear commerce is
restricted pursuant to the Guidelines for Nuclear Transfers of
the Nuclear Suppliers Group. NSG Guidelines permit such trade
with countries only when the receiving State has brought into
force an agreement with the IAEA requiring the application of
safeguards on all source and special fissionable material in
its current and future peaceful activities.
The Administration's proposed legislation would have
given the President the authority to permanently waive these
provisions for India, subject to the President's determination
that India had achieved certain benchmarks, such as engaging in
negotiations with the IAEA on a safeguards agreement and that
the NSG has agreed to provide an exemption for India to allow
its participating states to export civil nuclear materials,
equipment, and technology to India.
Under existing law, a nuclear cooperation agreement with
a country that does have full-scope safeguards and that
satisfies other criteria under 123a. of the AEA would come into
force 90 days after its submission for congressional review
unless a resolution of disapproval were passed in both Houses.
In practice, it is very difficult to secure passage of such
resolutions because a veto by the President of the joint
resolution would require a two-thirds vote in both Houses to
override.
By contrast, nuclear cooperation agreements with
countries, such as India, that do not satisfy all the
conditions of 123a, such as full-scope safeguards, can come
into effect only if both Houses of Congress pass a joint
resolution of approval within 90 days. If either chamber does
not approve the resolution, the agreement does not enter into
force.
The Administration's legislative proposal sought to avoid
this latter procedure by providing for a process of
congressional consideration of a 123 agreement with India such
as that reserved for countries that do have full-scope
safeguards. In that event, a nuclear cooperation agreement with
India would come into force automatically unless both Houses of
Congress passed a joint resolution of disapproval. In effect,
the Administration's proposal would have given it excessive
latitude in negotiating a nuclear cooperation agreement with
India, leaving Congress with little ability to influence the
terms of that agreement, regardless of any concerns it might
have.
Both the House International Relations Committee and the
Senate Foreign Relations Committee rejected this approach,
believing that the Administration's proposal did not provide
for appropriate congressional oversight over what was, by any
measure, an unprecedented nuclear cooperative relationship with
India. Both committees were troubled by the lack of
consultation by the Administration with Congress before the
July 18, 2005 Joint Statement and the March 2006 U.S.-India
Declaration (in which the terms by which India would separate
its civil and military nuclear facilities and further
commitments by the United States were announced).
Consequently, both committees introduced legislation
that, while informed by the Administration's proposal, reverts
to existing procedures laid out in the AEA for approval of 123
agreements that do not meet the criteria of section 123 a. The
Conference agreement grants the President the ability to waive
the aforementioned sections of the AEA for a future U.S.-India
agreement for civil nuclear cooperation. However, any such
agreement cannot enter into force until it has been submitted
to the Congress, along with a completed IAEA-India safeguards
agreement and other documents and Presidential determinations
such as a Nuclear Proliferation Assessment (required by the AEA
and by this legislation, as detailed in the section-by-section
review of this report), and approved by both Houses according
to the existing procedures of Section 130(i) of the AEA.
Furthermore, the Administration's ability to waive existing
provisions of section 129 of the AEA, which mandates the
termination of U.S. civil nuclear exports to a country if that
country tests a nuclear explosive device, terminates or
abrogates IAEA safeguards, materially violates an IAEA
safeguards agreement, or engages in other activities related to
nuclear proliferation, is limited to any such activities India
engaged in prior to July 18, 2005. Any such future activity by
India would invoke Section 129, subject to the waiver
provisions already available to the President in existing law.
Thus, the Conference agreement provides that for other conduct
that, under section 129, would result in termination of
cooperation, that section would continue to apply. If India
were to terminate or abrogate IAEA safeguards (129(1)(B)),
materially violate IAEA safeguards (129(1)(C)), violate an
agreement for cooperation with the United States (129(2)(A)),
encourage a non-nuclear weapon state to engage in proliferation
activities involving source and special nuclear material
(129(2)(B)), or engage in unauthorized proliferation of
reprocessing technology (129(2)(C)), the Conference agreement
would terminate cooperation. The Administration's bill would
have made section 129 inapplicable to such future actions on
the part of India.
As further clarified in the section-by-section analysis
included in this report, the conferees believe that there
should be no ambiguity regarding the legal and policy
consequences of any future Indian test of a nuclear explosive
device. In that event, the President must terminate all export
and reexport of U.S.-origin nuclear materials, nuclear
equipment, and sensitive nuclear technology to India. The
conferees expect the President to make full and immediate use
of U.S. rights to demand the return of all nuclear-related
items, materials, and sensitive nuclear technology that have
been exported or reexported to India if India were to test or
detonate, or otherwise cause the test or detonation of, a
nuclear explosive device for any reason, including such
instances in which India describes its actions as being ``for
peaceful purposes.'' This legal condition is further
strengthened in the Conference agreement beyond section 129 of
the AEA by a provision that the waiver authority in this
legislation terminates with any Indian test. The conferees
believe that termination would include the suspension and
revocation of any current or pending export or reexport
licenses, and that the return of U.S.-origin items and
materials should extend to any special nuclear material
produced by India through the use of any nuclear materials,
equipment, or sensitive nuclear technology exported or
reexported to India by the United States.
The prohibition concerning a recipient country not
engaging in activities involving source or special nuclear
material under Section 129 are permanently waived for India, as
India will undoubtedly continue to produce fissile material,
until such time after it is able to fulfill its commitment in
the July 18, 2005, Joint Statement to work with the United
States toward conclusion of a future Fissile Material Cut-off
Treaty.
H.R. 5682 reflects the widely held view in both the House
and the Senate that peaceful nuclear cooperation with India can
serve multiple U.S. foreign policy and national security
objectives but that this must be secured in a manner that
minimizes potential risks to the global nonproliferation
regime. Among the most important considerations are ensuring
that NSG guidelines and consensus decision-making are upheld
and that a U.S. nuclear cooperation agreement and subsequent
U.S. nuclear exports are consistent with the decisions,
policies, and guidelines of the NSG. The conferees note that
the converse is equally important, namely that the United
States must ensure that any decision that the NSG makes
regarding granting an exemption for nuclear commerce does not
disadvantage U.S. industry by setting less strict conditions
for countries trading with India than those embodied in the
conditions and requirements of this Act. Since the NSG operates
by consensus, the United States possesses the necessary
leverage to ensure a favorable outcome, and the conference
agreement reflects this view.
The bill requires, as a condition for the President to
exercise his waiver authority, that the NSG agree by consensus
to an exception to its guidelines specifically for India and
that no U.S. exports may be transferred to India that do not
comport with NSG guidelines and decisions. Equally important is
the need to ensure that U.S. cooperation does not assist the
Indian nuclear weapons program, directly or indirectly, in
order to avoid contributing to a nuclear arms race in South
Asia and in accordance with U.S. obligations under the NPT.
As in the Administration's proposed legislation, H.R.
5682 requires the President to determine that India is
upholding its July 18, 2005, commitments as a prerequisite for
using his waiver authority. The conferees believe that India's
continued implementation of those commitments is central to the
integrity of our bilateral relationship. Therefore, the bill
contains reporting requirements and a provision that calls for
termination of exports in the event of violations of certain
commitments. In addition, the bill seeks to uphold existing
statutory congressional oversight of U.S. nuclear cooperation
and exports. At a time when many countries are considering
nuclear energy as a viable and desirable alternative to carbon-
based energy sources, careful oversight of its expansion is
crucial.
The establishment of a ``global partnership'' with India
is among the most important strategic diplomatic initiatives
undertaken by this Administration. This partnership, along with
the extensive set of cooperative agreements that accompany it,
embraces a long-term outlook that seeks to strengthen U.S.
foreign policy and enhance global stability.
The House International Relations Committee and the
Senate Foreign Relations Committee studied carefully the
implications of the proposed agreement for nonproliferation
policy. Both committees were concerned about the precedent this
exception for India could establish and worked to ensure that
this agreement does not undercut U.S. compliance with its
responsibilities under the NPT. As a result of these efforts,
each committee's bill was approved overwhelmingly by its
respective chamber. The conferees believe that the conference
agreement achieves a proper balance among competing priorities
and concerns and will help solidify New Delhi's commitments to
implement strong export controls, separate its civilian nuclear
infrastructure from its weapons program, and place additional
civilian facilities under IAEA safeguards. An agreement for
peaceful nuclear cooperation with India approved by Congress
according to the procedures and conditions of this conference
report would be a powerful incentive for India to cooperate
more closely with the United States in stopping proliferation
and to abstain from further nuclear weapons tests.
The Administration's decision to establish an
increasingly close relationship with this country of enormous
potential, and its declaration that the U.S. welcomes India's
advancement as a major economic and political player on the
world stage represents a new and significant strategic
opportunity to advance U.S. goals. Given that India already
possesses a vibrant democracy, a rapidly growing economy, and a
well-educated middle class greater than the entire U.S.
population, it can serve as an engine of global economic
growth. Its increasing economic, military, and political power
may also contribute significantly to promoting stability in
South Asia and other regions.
India has the potential to become a valued partner in
countering the rise of extremism around the world as both
countries can cooperate to promote religious pluralism,
tolerance, and democratic freedoms. As a country with well-
entrenched democratic traditions and the world's second largest
Muslim population, India can set an example of a multi-
religious and multi-cultural democracy in an otherwise volatile
region.
The conferees believe that the conference agreement will
help solidify India's commitments to implement strong export
controls, separate its civilian nuclear infrastructure from its
weapons program, and place additional civilian facilities under
IAEA safeguards. An agreement for peaceful nuclear cooperation
with India approved by Congress according to the procedures and
conditions of this conference report would be a powerful
incentive for India to cooperate closely with the United States
in halting proliferation and abstaining from additional tests
of nuclear weapons. The conferees, along with both Houses,
place great emphasis on their expectation that India's full
cooperation with efforts by the U.S. and the international
community to prevent Iran from acquiring the capability to
produce nuclear weapons will be forthcoming.
India is already assuming a more prominent role in world
affairs. Its votes in the IAEA Board of Governors in September
2005 and February 2006 regarding Iran's likely efforts to
acquire a nuclear weapons capability are evidence that the
Government of India is able and willing to adopt a more
constructive role on international non-proliferation issues.
The Conferees believe the true test of the wisdom of this
legislation, which will be the effectiveness of India's new
commitments and obligations regarding nuclear nonproliferation,
can be judged only over time. India is determined to secure a
more prominent role in global affairs. This agreement will
provide it with enhanced incentives to use its rapidly
expanding influence to promote regional and international
stability and global economic progress.
Section-by-Section Analysis and Discussion
TITLE I--UNITED STATES AND INDIA NUCLEAR COOPERATION
Section 101. Short title
Section 101 states that this title may be cited as the
``Henry J. Hyde United States-India Peaceful Atomic Energy
Cooperation Act of 2006''.
Section 102. Sense of Congress
Section 102 combines provisions relating to the Sense of
Congress in the House bill and in the Senate amendment. It
expresses the Sense of Congress regarding the nuclear non-
proliferation regime and the principles that should guide the
United States in entering into an agreement on nuclear
cooperation with a country that has never been a State Party to
the Nuclear Non-Proliferation Treaty (NPT). Paragraph (1)
states that preventing the proliferation of nuclear weapons,
other weapons of mass destruction (WMD), and the means to
deliver these are critical objectives for United States foreign
policy. Paragraph (2) states that sustaining the NPT and
strengthening its implementation is the keystone of United
States non-proliferation policy. Paragraph (3) states that the
NPT has been a significant success in preventing the spread of
nuclear weapons capabilities to other countries and in
maintaining a stable international security situation.
Paragraph (4) states that countries that have never become a
party to the NPT and remain outside that treaty's legal regime
pose a potential challenge to the achievement of the overall
goals of global nonproliferation because those countries have
not undertaken the NPT's international obligation to prohibit
the spread of dangerous nuclear technologies. Paragraph (5)
states that it is in the interest of the United States to
ensure to the fullest extent possible that those countries that
are not States Party to the NPT act responsibly in the
disposition of any nuclear technology they develop.
Paragraph (6) states that it is in the interest of the
United States to cooperate with a country that has never signed
the NPT with respect to civilian nuclear technology if that
country meets certain criteria. These criteria include
demonstrating responsible behavior with respect to the
nonproliferation of nuclear weapons technology and the means to
deliver these weapons; the country has a functioning and
uninterrupted democratic system of government, has a foreign
policy that is congruent with that of the United States, and is
working with the United States in key foreign policy
initiatives related to non-proliferation; such cooperation
induces the country to promulgate and implement substantially
improved protections against the proliferation of technology
related to nuclear weapons and the means to deliver them and
also to refrain from actions that would further the development
of its nuclear weapons program; and that such cooperation will
induce the country to give greater political and material
support to the achievement of U.S. global and regional
nonproliferation objectives, especially with respect to
dissuading, isolating, and, if necessary, sanctioning and
containing states that sponsor terrorism and terrorist groups
and that are seeking to acquire a nuclear weapons capability or
other WMD capability and the means to deliver such weapons.
Paragraph (7) states that the United States should
continue its policy of engagement, collaboration, and exchanges
with and between India and Pakistan. Paragraph (8) states that
strong bilateral relations with India are in the national
interest of the United States. Paragraph (9) states that the
United States and India share common democratic values and the
potential for increasing and sustained economic engagement.
Paragraph (10) states that commerce in civil nuclear energy
with India by the United States and other countries has the
potential to benefit the people of all countries.
Paragraph (11) states that civil nuclear commerce with
India represents a significant change in U.S. policy toward
countries not parties to the NPT and stresses that the NPT
remains the foundation of the international non-proliferation
regime. Paragraph (12) states that any commerce in civil
nuclear energy with India by the United States and other
countries must be achieved in a manner that minimizes the risk
of nuclear proliferation or regional arms races and maximizes
India's adherence to international nonproliferation regimes,
including, in particular, the guidelines of the Nuclear
Suppliers Group. Paragraph (13) states that the United States
should not seek to facilitate or encourage the continuation of
nuclear exports to India by any other party if such exports are
terminated under United States law.
Section 103. Statements of policy
Section 103 contains provisions from the House bill and
from the Senate amendment and sets forth two sets of policies
of the United States: those general in nature and those
specific to South Asia.
Subsection (a) states that it shall be the policy of the
United States to:
1. Oppose the development of a capability to
produce nuclear weapons by any non-nuclear weapon
state, within or outside of the NPT;
2. Encourage States Party to the NPT to interpret
the right to ``develop research, production and use of
nuclear energy for peaceful purposes'', as set forth in
Article IV of the NPT, as being a right that applies
only to the extent that it is consistent with the
purpose of the NPT to prevent the spread of nuclear
weapons and nuclear weapons capability, including by
refraining from all nuclear cooperation with any State
Party that the IAEA determines is not in full
compliance with its NPT obligations, including its
safeguards obligations;
3. Act in a manner fully consistent with the NSG
guidelines concerning nuclear transfers and transfers
of nuclear-related dual-use items;
4. Strengthen the NSG guidelines and decisions
concerning consultation by members regarding violations
of supplier and recipient understandings by instituting
the practice of a timely and coordinated response by
NSG members to all such violations, including
termination of all nuclear transfers to an involved
recipient, that discourages individual NSG members from
continuing cooperation with such recipient until such
time as a consensus regarding a coordinated response
has been achieved;
5. Given the special sensitivity of equipment and
technologies related to the enrichment of uranium, the
reprocessing of spent nuclear fuel, and the production
of heavy water, work with members of the NSG,
individually and collectively, to further restrict the
transfers of such equipment and technologies, including
to India; and
6. Seek to prevent the transfer to a country of
nuclear equipment, materials, or technology from other
participating governments in the NSG or from any other
source if nuclear transfers to that country are
suspended or terminated pursuant to this title, the
Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), or
any other United States law.
Regarding the second statement, the conferees note that
the NPT was conceived for the specific and overriding purpose
of preventing the proliferation of nuclear weapons and nuclear
explosive devices, as stated in the Preamble and its first
three Articles. All provisions of the NPT must be interpreted
within the context of preventing the proliferation of nuclear
weapons and nuclear explosive devices; and Article IV
conditions a country's ``inalienable right to develop research,
production and use of nuclear energy for peaceful purposes
without discrimination'' on that country's conformity with
Articles I, II, and III, which obligate each non-nuclear weapon
State Party ``not to manufacture or otherwise acquire nuclear
weapons or other nuclear explosive devices; and not to seek or
receive any assistance in the manufacture of nuclear weapons or
other nuclear explosive devices.''
The conferees believe that, because the processes of
enriching uranium or separating plutonium for peaceful or
military purposes are essentially identical, they inherently
pose an enhanced risk of proliferation, even under strict
international safeguards. Rights under Article IV of the NPT
must be properly understood and exercised only insofar as they
are consistent with preventing the proliferation of nuclear
weapons. Therefore, the world must not accept a claim by a non-
nuclear weapon state of a right to develop or possess a
complete nuclear fuel cycle if that country has not provided
convincing evidence that its nuclear activities are fully
safeguarded from contributing to a nuclear weapons capability.
Regarding the third and fourth statements, the Nuclear
Suppliers Group, although not a formal organization that can
issue legally-binding directives, is nonetheless one of the
most effective elements of the nuclear non-proliferation
regime. For a generation, U.S. Presidents have forged in this
forum an important international consensus on the need to
prevent nuclear proliferation by controlling the export of
sensitive nuclear material, equipment and technology. The
conferees believe strongly that no bilateral objective, even
the important objective of a new relationship with India,
should be allowed to undermine the NSG's effectiveness. The
United States must continue to abide by the NSG Guidelines,
which it has worked so diligently to achieve.
Equally, the United States must maintain the consensus
decision mechanism of the NSG, and not look for any way around
that requirement. The conferees believe that the effectiveness
of the NSG rests upon its consensus decision-making, resulting
in unified policies and enhanced compliance with those
policies. The conferees are mindful that a country outside the
regime that seeks an exception from NSG guidelines could agree
to stringent safeguards with some NSG members, but later import
only from other NSG members that did not impose such
requirements. To preclude such a scenario, the conferees urge
the Executive branch to persuade other NSG members to act in
concert in terms of the timing, scope, and safeguarding of
nuclear supply to all countries, including India. In
particular, the conferees intend that the United States seek
agreement among NSG members that violations by one country of
an agreement with any NSG member should result in joint action
by all members, including, as appropriate, the termination of
nuclear exports. In addition, the conferees intend that the
Administration work with individual states to encourage them to
refrain from sensitive exports.
Regarding the sixth statement, if U.S. exports to a
country were to be suspended or terminated pursuant to U.S.
law, it will be U.S. policy to seek to prevent the transfer to
such country of nuclear equipment, material or technology from
other sources. This concern could arise if, for example, there
were a nuclear test explosion, termination or abrogation of
IAEA safeguards, material violation of IAEA safeguards or an
agreement of cooperation with the United States, assistance or
encouragement of a non-nuclear weapon state in nuclear-weapons
related activities or reprocessing-related activities, or (in
India's case) failure to uphold its July 18, 2005, Joint
Statement commitments. In such a circumstance, the conferees
expect the United States to encourage other supplier countries
not to undermine U.S. sanctions.
On March 6, 2006, the Indian Prime Minister told the
Indian Parliament that the U.S. Government had said that if a
disruption of fuel supplies to India occurs, the U.S. would,
with India, jointly convene a group of friendly supplier
countries, such as Russia, France and the United Kingdom, to
pursue such measures as would restore fuel supply to India. The
conferees understand and expect that such assurance of supply
arrangements that the U.S. is party to will be concerned only
with disruption of supply of fuel due to market failures or
similar reasons, and not due to Indian actions that are
inconsistent with the July 18, 2005, commitments, such as a
nuclear explosive test.
Subsection (b) states that, with respect to South Asia,
it shall be U.S. policy to:
1. Achieve, at the earliest possible date, a
moratorium on the production of fissile material for
nuclear explosive purposes by India, Pakistan, and the
People's Republic of China;
2. Achieve, at the earliest possible date, the
conclusion and implementation of a treaty banning the
production of fissile material for nuclear weapons to
which both the United States and India become parties;
3. Secure India's full participation in the
Proliferation Security Initiative (PSI), formal
commitment to the PSI's Statement of Interdiction
Principles, public announcement of its decision to
conform its export control laws, regulations, and
policies with the Australia Group and with the
Guidelines, Procedures, Criteria, and Control Lists of
the Wassenaar Arrangement, and demonstration of
satisfactory progress toward implementing this
decision; and ratification of or accession to the
Convention on Supplementary Compensation for Nuclear
Damage;
4. Secure India's full and active participation in
U.S. efforts to dissuade, isolate, and, if necessary,
sanction and contain Iran for its efforts to acquire
WMDs, including a nuclear weapons capability and the
capability to enrich uranium or reprocess nuclear fuel
and the means to deliver WMDs;
5. Seek to halt the increase of nuclear weapon
arsenals in South Asia and to promote their reduction
and eventual elimination;
6. Ensure that spent fuel generated in India's
civilian nuclear power reactors is not transferred to
the United States except under procedures required
under section 131f. of the Atomic Energy Act of 1954;
7. Pending implementation of the multilateral
moratorium or treaty described in paragraphs (1) and
(2), encourage India not to increase its production of
fissile material at unsafeguarded nuclear facilities;
8. Ensure that any safeguards agreement or
Additional Protocol to which India is a party with the
IAEA can reliably safeguard any export or reexport to
India of nuclear materials and equipment;
9. Ensure that the text and implementation of any
agreement for cooperation with India meet the
requirements set forth in subsections a.(l) and a.(3)
through a.(9) of section 123 of the Atomic Energy Act
of 1954 (42 U.S.C. 2153); and
10. Ensure that any nuclear power reactor fuel
reserve provided to the Government of India for use in
safeguarded civilian nuclear facilities should be
commensurate with reasonable reactor operating
requirements.
The conferees believe that a U.S.-India nuclear
cooperation agreement will mark an important and positive
turning point in the U.S.-India relationship. This does not
mean, however, that the United States should sacrifice its
long-standing objectives for non-proliferation in South Asia.
This subsection states that U.S. policy must be to continue to
support a fissile material moratorium in South Asia and a halt
to the increase in nuclear arsenals in the region, which would
bring great benefits to India and its neighbors. The United
States must also continue to work for a broader fissile
material production halt, whether through Fissile Material Cut-
off Treaty negotiations or, for example, through an agreement
reached by all the countries that have fissile material for
nuclear weapons purposes.
The conferees believe also that India has a significant
role to play in preventing the proliferation of dangerous
nuclear technologies to other countries and that India must be
a part of the international effort to prevent Iran from
acquiring weapons of mass destruction, especially nuclear
weapons. The conferees fully expect and look forward to the day
when India joins the world community in conforming to the full
range of nonproliferation and export control regimes. In the
July 18, 2005, Joint Statement, India committed to accept the
``same responsibilities and practices and acquire the same
benefits and advantages as other leading countries with
advanced nuclear technology, such as the United States.''
India's welcome steps regarding nuclear and missile-related
export controls are important progress in this regard, but the
other leading countries with advanced nuclear technology will
expect India to join them also in stemming the flow of items
that can contribute to chemical and biological weapons programs
and of destabilizing types or amounts of certain conventional
weapons. India's participation in the Proliferation Security
Initiative would also be of great benefit to the world and to
the region.
It is also vital that India hasten the day when it can
halt the production of fissile material for weapons, as four of
the five nuclear weapon states under the NPT have openly done.
The conferees understand that India cannot do this alone, and
therefore urge the Executive branch to pursue a joint
moratorium by India, Pakistan and China, as well as a
multilateral treaty banning the production of fissile material
for nuclear weapons.
The conferees believe it is critical to secure India's
full participation in U.S. efforts to prevent Iran from
acquiring nuclear weapons, a position held by many members of
both houses of Congress. The conferees express their
appreciation for India's favorable votes on this issue in the
IAEA Board of Governors and its statements that Iran should
indeed cooperate with the IAEA and refrain from developing
nuclear weapons. They understand also that India has long-
standing ties with Iran. Precisely because India has those
ties, it can and must play a prominent and positive role in
convincing Iran that the path of cooperation and of nuclear
development with international assurances, but without an
indigenous full fuel cycle, is far preferable to the path of
obduracy and isolation in order to develop uranium enrichment
and plutonium production capabilities.
The United States has an obligation under Article I of
the NPT not to ``in any way assist, encourage, or induce a non-
nuclear weapon state to manufacture or otherwise acquire
nuclear weapons.'' Many nonproliferation experts have noted the
need to avoid a nuclear arms race in South Asia, as well as to
ensure that U.S. assistance does not encourage India to
increase its production of fissile material at unsafeguarded
nuclear facilities. The conferees understand that U.S. peaceful
nuclear cooperation with India will not be intended to inhibit
India's nuclear weapons program. At the same time, however,
such cooperation must be conducted in a manner that does not
assist that program. That is why the conferees stress the need
for effective safeguards on nuclear-related exports or
reexports to India, the need to meet the requirements in
sections a.(1) and a.(3) through a.(9) of section 123 of the
Atomic Energy Act, and the need for any nuclear fuel reserve
provided to the Government of India to be commensurate with
reasonable reactor operating requirements, rather than of a
size that would enable India to break its commitments or end
its moratorium on nuclear testing and maintain its civil
nuclear energy production despite unilateral or international
sanctions.
Indian officials have publicly stated that under the
U.S.-India agreement, India will be able to produce as much
fissile material for weapons purposes as it desires. At the
same time, however, many experts have said that there is no
reason why India would need or want to increase that production
significantly. The conferees hope that India will demonstrate
restraint and not increase significantly its production of
fissile material. If civil nuclear commerce were to be seen,
some years from now, as having in fact contributed to India's
nuclear weapons program, there could be severe consequences for
nuclear cooperation, for U.S.-Indian relations, and for the
world-wide nuclear nonproliferation regime.
India's March 2006 nuclear facility separation plan
stated: ``The United States will support an Indian effort to
develop a strategic reserve of nuclear fuel to guard against
any disruption of supply over the lifetime of India's
reactors.'' Congress has not been able to determine precisely
what was said on this matter in high-level U.S.-Indian
discussions. U.S. officials testified, however, that the United
States does not intend to help India build a stockpile of
nuclear fuel for the purpose of riding out any sanctions that
might be imposed in response to Indian actions such as
conducting another nuclear test. The conferees understand that
nuclear reactor facilities commonly have some fresh fuel
stored, so as to minimize down time when reactor cores are
removed. They endorse the Senate proposal, however, that there
be a clear U.S. policy that any fuel reserve provided to India
should be commensurate with normal operating requirements for
India's safeguarded reactors.
Section 104. Waiver authority and Congressional approval
The conference agreement adopts the framework of the
House bill, but adds a number of provisions from the Senate
amendment.
Section 104(a) provides the President with authority to
exempt an agreement for civil nuclear cooperation with India
and nuclear exports to India from certain sections of the
Atomic Energy Act of 1954 (AEA) that would otherwise present
obstacles to approving and implementing such an agreement.
Specifically, the waiver authority applies to sections 123
a.(2), 128, and 129.
Both the House of Representatives and the Senate
concurred with the administration regarding the need for relief
from the requirement in section 123 a.(2) of the AEA, which
would otherwise require that India agree to put all its nuclear
facilities under IAEA safeguards. They concluded, in
particular, that the Executive branch would be unable to meet
the standard in existing law for exempting a U.S.-India
agreement from this requirement, namely that failure to make
the proposed exception/waiver would be ``seriously prejudicial
to the achievement of United States nonproliferation objectives
or otherwise jeopardize the common defense and security.'' The
conferees recommend allowing the President to exempt an
agreement with India from the requirement in section 123 a.(2)
of the AEA without making this determination. Instead,
subsection 104(a) requires that the President make the
determination in subsection 104(b).
The conferees emphasize their intent, however, that
section 123 a.(2) be the only portion of the AEA from which
their recommendation provides relief. The Executive branch will
still be required to coordinate and submit to Congress a
Nuclear Proliferation Assessment Statement under section 123.
In addition, an agreement for cooperation with India will still
have to meet the requirements of section 123 a.(1) and a.(3)
through (9), unless the President can meet the standard quoted
above for exempting the agreement from one or more of those
requirements.
The conferees recommend subsection 104(e), moreover,
which amends section 123 a. of the AEA so as to make clear that
an agreement with India for which the President has exercised
the waiver provided by subsection 104(a) of this title will be
considered under existing AEA procedures for approval of an
agreement for cooperation exempted from one of the requirements
of section 123 a. These procedures provide for expedited
consideration of a joint resolution of approval of the
agreement, but do not permit the agreement to enter into force
unless and until a joint resolution of approval is enacted.
Parliamentary practice in the two houses of Congress is that
the expedited joint resolution will not contain any conditions
to their approval of the agreement and will not be subject to
amendment. Congress could pass a joint resolution of approval
with conditions, but would have to proceed without benefit of
the expedited procedures offered by sections 123 and 130 of the
AEA.
Section 104(a)(2) provides the President authority to
waive section 128 of the AEA with respect to exports to India,
without the additional limitations proposed in the House bill.
In addition, this title would allow the President to
waive the restrictions of section 129 a.(1)(A) of the AEA for
any activity that occurred on or before July 18, 2005, and also
to waive the restrictions of section 129 a.(1)(D). This would
provide authority to waive a termination of nuclear exports
that would otherwise be required because of President Clinton's
determination that India had tested a nuclear explosive device
in 1998, while keeping in place the requirement to cut off
exports should India test in the future. It would also provide
waiver authority for cessation of U.S. nuclear exports to India
in the event that the President determines that India has
``engaged in activities involving source or special nuclear
material and having direct significance for the manufacture or
acquisition of nuclear explosive devices, and has failed to
take steps which, in the President's judgment, represent
sufficient progress toward terminating such activities.'' This
waiver will be necessary because India will presumably continue
to produce material for its nuclear weapons program, consistent
with its separation plan.
Subsection (b) requires the President to make the
following determinations:
(1) India has provided the United States and the
International Atomic Energy Agency with a credible plan
to separate civil and military nuclear facilities,
materials, and programs, and has filed a declaration
regarding its civil facilities and materials with the
IAEA;
(2) India and the IAEA have concluded all legal
steps required prior to signature by the parties of an
agreement requiring the application of IAEA safeguards
in perpetuity in accordance with IAEA standards,
principles, and practices (including IAEA Board of
Governors Document GOV/1621 (1973)) to India's civil
nuclear facilities, materials, and programs as declared
in its separation plan, including materials used in or
produced through the use of India's civil nuclear
facilities;
(3) India and the IAEA are making substantial
progress toward concluding an Additional Protocol
consistent with IAEA principles, practices, and
policies that would apply to India's civil nuclear
program;
(4) India is working actively with the United
States for the early conclusion of a multilateral
treaty on the cessation of the production of fissile
materials for use in nuclear weapons or other nuclear
explosive devices;
(5) India is working with and supporting U.S. and
international efforts to prevent the spread of
enrichment and reprocessing technology to any state
that does not already possess full-scale, functioning
enrichment or reprocessing plants;
(6) India is taking the necessary steps to secure
nuclear and other sensitive materials and technology,
including through: the enactment and enforcement of
comprehensive export control legislation and
regulations; harmonization of its export control laws,
regulations, policies, and practices with the policies
of the MTCR and the NSG, and adherence to the MTCR and
the NSG in accordance with the procedures of those
regimes for unilateral adherence;
(7) The NSG has decided by consensus to permit
supply to India of nuclear items covered by the
guidelines of the NSG.
The conferees intend that the need for these
determinations will make certain that measures needed to ensure
that the agreement can safely come into force are in place,
e.g., a safeguards agreement negotiated with the IAEA, and that
India has fulfilled key obligations it undertook freely in its
July 18, 2005, statement and in subsequent statements. The
conferees recognize that a number of these conditions will
require considerable expenditure of effort and resources to
satisfy, such as the negotiation of an Additional Protocol that
must be tailored to India's unique needs, and for that reason
have 15 allowed for significant latitude regarding their
completion. But the conferees believe that none of these
conditions, either singly or in combination with others, is
onerous. In addition, although they did not impose rigorous
measurements or deadlines, the conferees intend that
considerable substantive progress on the foregoing measures can
be demonstrated, including India's cooperation with the United
States to prevent the spread of enrichment and reprocessing
technology and its taking steps to strengthen its export laws
and regulations.
The House bill required a determination that India and
the IAEA ``have concluded'' a safeguards agreement, while the
Senate version required that the agreement ``has entered into
force.'' The conferees want to ensure that the Congress can
have confidence that the text of the safeguards agreement,
which will be provided when an agreement with India is
submitted to Congress, is what will actually come into effect.
The conferees recognize, however, that there might well be a
delay between the approval of a safeguards agreement and the
date of its entry into force. They understand also that India
may be wary of signing a safeguards agreement with the IAEA
before an agreement for cooperation with the United States has
been approved.
The conferees recommend that the President be required to
determine that India and the IAEA have concluded all legal
steps required prior to signature by the parties of a
safeguards agreement that conforms to IAEA standards,
principles, and practices. They have been assured that
signature is the final step in the process of negotiating and
approving a safeguards agreement. Normally, safeguards
agreements enter into force upon signature. The Executive
branch understands that Congress must be confident that the
India-IAEA safeguards agreement text it is shown when an
agreement for cooperation is submitted is, in fact, what will
be signed and come into force. The conferees believe that
Congress will be able to rely upon a text that has gone through
all legal steps required prior to signature by the parties.
With regard to Indian adherence to the MTCR and the NSG,
the conferees understand that there are specific procedures
that a country uses to unilaterally adhere to such regimes. The
conferees also understand that the Government of India is aware
of those procedures.
Paragraph (7) requires a presidential determination that
the Nuclear Suppliers Group has decided by consensus to permit
supply to India of nuclear items covered by the guidelines of
the NSG. The conferees believe that it is vital to maintain the
role and effectiveness of the NSG, a position which is
consistent with statements by senior Administration officials.
This provision ensures that the NSG will change its guidelines,
or grant an exemption from them, only in accordance with its
longstanding practice that all such changes require consensus
among its participating governments.
Subsection (c) requires the President to submit to the
House International Relations Committee and the Senate Foreign
Relations Committee the determination described in subsection
(b) and a report regarding this determination that includes:
(1) summaries and copies of India's separation plan
and of its declaration of which of its civil nuclear
facilities will be placed under IAEA safeguards,
including an analysis of the credibility of the plan
and declaration;
(2) a summary of the safeguards agreement between
India and the IAEA, including a copy of the agreement
and a description of progress toward its full
implementation
(3) a summary of the progress made toward
concluding and implementing an Additional Protocol
between India and the IAEA, including a description of
the scope of that Additional Protocol;
(4) a description of the steps India is taking to
work with the United States for the conclusion of a
multilateral treaty banning the production of fissile
material for nuclear weapons, including a description
of the steps the United States has taken and will take
to encourage India to identify and declare a date by
which India would be willing to stop production of
fissile material for nuclear weapons unilaterally or
pursuant to a multilateral moratorium or treaty;
(5) a description of the steps India is taking to
prevent the spread of nuclear-related technology,
including enrichment and reprocessing technology or
materials that can be used to acquire nuclear weapons
technology, as well as the support that India is
providing to the United States to restrict the spread
of such technology;
(6) a description of the steps that India is taking
to secure materials and technology applicable for the
development, acquisition, or manufacture of weapons of
mass destruction and the means to deliver such weapons
through the application of comprehensive export control
legislation and regulations, and through harmonization
and adherence to MTCR, NSG, Australia Group, and
Wassenaar Arrangement guidelines, as well as compliance
with United Nations Security Council Resolution 1540,
and participation in the Proliferation Security
Initiative;
(7) a description and assessment of the specific
measures that India has taken to fully and actively
participate in United States and international efforts
to dissuade, isolate, and, if necessary, sanction and
contain Iran for its efforts to acquire weapons of mass
destruction, including a nuclear weapons capability and
the capability to enrich uranium or reprocess nuclear
fuel, and the means to deliver weapons of mass
destruction;
(8) a description of the NSG decision regarding
India, including whether the U.S.-India civil nuclear
cooperation agreement is consistent with the decision
and with the practices and policies of the NSG;
(9) a description of the scope of peaceful
cooperation envisioned by the United States and India
that will be implemented under the Agreement for
Nuclear Cooperation, including whether such cooperation
will include the provision of enrichment and
reprocessing technology; and
(10) a description of the measures the United
States will take to prevent the use of any United
States equipment, technology, or nuclear material by
India in an unsafeguarded nuclear facility or for any
activity related to nuclear explosive devices, and
ensure that the provision of nuclear reactor fuel does
not result in increased production of fissile material
in unsafeguarded nuclear facilities.
Since the IAEA Board of Governors resolved that Iran was
in noncompliance with its safeguards and NPT obligations in
September 2005, diplomatic negotiations to dissuade, sanction
and contain the Iranian nuclear program have been largely
unsuccessful. It is imperative to obtain the support of key
states to develop measures that would enable the world
community once again to have confidence in both Iran's nuclear
intentions and the ability to monitor developments. India's
support, as a long-time leader of the Non-Aligned Movement and
as a state with military and economic relations with Iran, is
particularly important. The conferees believe that India's full
and active participation in U.S. and international efforts to
dissuade, sanction, and contain Iran's nuclear program would
greatly benefit both the region and the world, and that the
report on its efforts in this regard, required by subparagraph
(c)(2)(G) will be of great interest to many Members of
Congress.
There has been much concern about the possibility that
the provision of nuclear technology and nuclear fuel to India
could indirectly assist or encourage India's nuclear weapons
program. To increase confidence that no such developments will
take place, the conferees recommend the reporting requirement
in subparagraph (c)(2)(J). The report should address the
potential replication of U.S.-origin nuclear technology in
unsafeguarded nuclear facilities in India, as well as the
possible utilization of foreign nuclear fuel supplies in a
manner that leads to the increased production of fissile
material in India's unsafeguarded nuclear facilities using
domestic uranium reserves. Further, the conferees urge the
Administration to encourage India to exercise the utmost
restraint with respect to its nuclear weapons program,
including with respect to any new reactor that would increase
India's plutonium production capability.
Subsection (d) provides, in part, that:
(1) nothing in this title constitutes authority to
carry out any civil nuclear cooperation between the
U.S. and a country that is not a nuclear-weapon State
Party to the NPT that would in any way assist,
encourage, or induce that country to manufacture or
otherwise acquire nuclear weapons or nuclear explosive
devices;
(2) no item subject to the transfer guidelines of
the NSG may be transferred to India if such transfer
would be inconsistent with the guidelines in effect on
the date of the transfer; and
(3) exports of nuclear and nuclear-related
material, equipment, or technology to India shall be
terminated if India makes any materially significant
transfer of nuclear or nuclear-related material,
equipment, or technology that does not conform to NSG
guidelines or ballistic missiles or missile-related
equipment or technology that does not conform to MTCR
guidelines, unless the President either determines that
cessation of such exports would be seriously
prejudicial to the achievement of U.S. nonproliferation
objectives or otherwise jeopardize the common defense
and security; or chooses not to terminate exports
because: the transfer was made without the knowledge of
the Government of India; at the time of the transfer,
either the Government of India did not own, control or
direct the Indian person that made the transfer or the
Indian person that made the transfer is a natural
person who acted without knowledge of any entity
described in subparagraph (B) or (C) of section 110(5);
and the President certifies to the appropriate
congressional committees that the Government of India
has taken or is taking appropriate judicial or other
enforcement actions against the entity with respect to
such transfer.
As stated above, the conferees believe the NPT is the
keystone of U.S. nonproliferation policy and must be sustained
and strengthened. The United States has always abided by its
obligation under Article I of the NPT to not in any way assist,
encourage, or induce non-nuclear weapon states to manufacture
or otherwise acquire nuclear weapons or nuclear explosive
devices. The Nuclear Nonproliferation Act of 1978 set a
standard almost thirty years ago for the United States in its
civil nuclear cooperation with non-nuclear weapon states by
requiring those states to have full-scope safeguards. In making
an exception for a future nuclear cooperation agreement with
India in this bill, it is paramount to ensure that nothing in
such cooperation would undermine America's commitment to abide
by Article I of the NPT. The conferees recommend paragraph
104(d)(I) to underscore this view.
Section 104(d)(2) is one of several provisions in the
bill intended to ensure that any civil nuclear cooperation
between the United States and India strengthens rather than
weakens the global nuclear nonproliferation regime. This
provision contributes to the achievement of this objective by
prohibiting the transfer to India of any item the transfer of
which is subject to (1) a U.S.-India agreement for cooperation,
(2) the NSG Guidelines for Nuclear Transfers (INFCIRC/254, Part
1), or (3) the NSG Guidelines for Transfers of Nuclear-Related
Dual-Use Equipment, Materials, Software and Related Technology
(INFCIRC/254, Part 2), if such transfer would be inconsistent
with either of the aforementioned NSG guidelines as in effect
on the date of the transfer. No waiver authority is provided to
permit transfers to be made notwithstanding this restriction.
This restriction will ensure that U.S.-India nuclear
cooperation continues to be carried out in a manner consistent
with the transfer guidelines and policies of the NSG. The
Administration has expressed confidence that the NSG will
adjust its guidelines in order to permit civil nuclear
cooperation along the lines contemplated by the July 18, 2005,
Joint Statement of President Bush and Prime Minister Singh.
Further, Secretary of State Condoleezza Rice has publicly
assured Congress, by means of a letter dated June 28, 2006, to
Senate Foreign Relations Committee Chairman Richard Lugar,
that:
* * * in carrying out the laws and regulations of
the United States governing the export of nuclear-
related items, the United States Government will
continue to act in accordance with IAEA INFCIRC/254, as
amended, the Guidelines and Annexes of the Nuclear
Suppliers Group. The U.S. will also continue to act
within the policies and practices of the decisions
taken by the Nuclear Suppliers Group with respect to
India. We intend to do so notwithstanding any contrary
actions by any other participating countries in the
Nuclear Suppliers Group.
Section 104(d)(3) reflects the importance the conferees
attach to India's commitments in the July 18, 2005, Joint
Statement to secure its nuclear materials and nuclear and
missile technology through comprehensive export control
legislation and through harmonization and adherence to MTCR and
NSG guidelines. These two steps are critical to bringing India
closer to the nonproliferation mainstream, one of the benefits
attributed to U.S. nuclear cooperation with India by the
Administration. Failure to conform to these nuclear and missile
export control guidelines, both in principle and in practice,
would represent a failure by India to meet the nonproliferation
standards expected of other responsible states.
This provision mandates termination of exports under an
agreement for cooperation with India if an Indian person
engages in transfers that are not consistent with NSG or MTCR
guidelines. The term ``Indian person,'' which is defined in
subsection 110(5), is used in a legal sense, to encompass both
individuals and entities of all sorts that are under India's
jurisdiction, as well as governmental entities. The term
includes non-Indian nationals, if they are under India's
jurisdiction.
As no export control system is perfect, the conferees
recommend that the threshold of violation be one of material
significance. This should eliminate any concern that the sale
of a ``widget'' to the wrong country could trigger the sanction
in paragraph 104(d)(2).
The conferees recommend granting to the President two
separate waiver authorities regarding this sanction. The first
could be exercised if the President determines that cessation
of such exports would be seriously prejudicial to the
achievement of United States nonproliferation objectives or
otherwise jeopardize the common defense and security.
The second waiver could be used if the offending transfer
was made without the knowledge of the Government of India, such
transfer was made either by an Indian person not owned,
controlled, or directed by the Government of India at the time
of the transfer, or by an individual who acted alone without
the knowledge of the relevant Indian entity, and the President
certified to the appropriate congressional committees that the
Government of India has taken or is taking appropriate judicial
or other enforcement actions against the Indian person with
respect to such transfer. The conferees do not intend that an
Indian individual working alone for private gain and without
the knowledge of the entity for which that individual works
would trigger the restrictions in this section. However, if
such individual is a senior officer of such entity, the
conferees believe that constructive knowledge must be deemed to
exist. In a case where it is impossible for the Government of
India to bring judicial or other enforcement action against an
Indian person because the government cannot exercise
jurisdiction over the person or entity, or if the Government of
India cannot bring an enforcement action because of its good
faith interpretation of applicable law, or for some other
reason, the statutory requirement that ``appropriate'' action
be taken to avoid the termination required in subparagraph (A)
may be deemed fulfilled. The conferees thus intend not to put
an agreement for cooperation with India in jeopardy, but rather
to encourage India's compliance with its commitments and to
allow sanctions to be waived if compliance efforts are in
train. It is the President's responsibility, however, to show
in his certification to Congress that such circumstances
limiting the Government of India's enforcement actions truly
exist, and are not in reality an evasion of the intent of this
provision that India exercise true oversight over the persons
and entities that operate within its territory or jurisdiction.
The conferees understand that, if necessary, the
President could use his waiver authority to give India some
time in which to commence appropriate enforcement actions. The
conferees intend, however, that any such waiver would be for a
limited period and would be withdrawn if the expected
enforcement failed to materialize.
Section 104(d)(4) derives from a provision in the Senate
bill that prohibited the export and reexport to India of any
equipment, materials, or technology related to the enrichment
of uranium, the reprocessing of spent nuclear fuel, or the
production of heavy water to India, except where the Indian end
user is a multinational facility participating in an IAEA-
approved program to provide alternatives to national fuel cycle
capabilities or a facility participating in a bilateral or
multinational program to develop a proliferation-resistant fuel
cycle, and where the President determines that the export or
reexport will not improve India's ability to produce nuclear
weapons or fissile material for military uses. The conferees
recommend the Senate provision with an amendment.
Section 104(d)(4) regulates U.S. cooperation with India
in the areas of uranium enrichment, reprocessing of spent fuel
and heavy water production. Under the Atomic Energy Act, such
cooperation is not restricted, but agreements for cooperation
must specify if such cooperation is to take place.
In dealing with such matters as related to India, the
conferees have paid particular attention to the general status
of such cooperation under U.S. law and with all nations that
currently have 123 agreements with the United States, and to
the policies of the present Administration. The conferees note
that all but one currently active Section 123 agreement (with
Australia) specifically prohibit such cooperation. In order to
meet the requirement of Section 123 a.(9) of the Atomic Energy
Act (that equipment, material, or production or utilization
facilities produced as a result of a U.S. nuclear cooperation
agreement will be subject to all the other requirements of
Section 123 a.), it has been deemed necessary to amend
agreements for cooperation, submitting them to Congress for
approval. In 1999, when the United States Government opted to
expand U.S.-Australian nuclear cooperation to allow for
cooperation in the SILEX uranium enrichment process, an amended
agreement was submitted to Congress for approval.
The conferees intend that, should any such cooperation
with India be contemplated, either the original agreement for
cooperation would specify that such cooperation is authorized
or a subsequently amended agreement would be submitted to the
Congress. In either circumstance, existing congressional
prerogatives to review and approve such cooperation would be
maintained. The conferees note that the Administration has
already stipulated that ``full civil nuclear cooperation,'' the
term used in the July 18, 2005, Joint Statement between
President Bush and Indian Prime Minister Singh, will not
include enrichment or reprocessing technology. This is
consistent with President Bush's February 11, 2004, speech at
the National Defense University, in which he stated that
``enrichment and reprocessing are not necessary for nations
seeking to harness nuclear energy for peaceful purposes,'' and
the fact that, other than in the SILEX arrangement with
Australia, the United States does not currently engage in
cooperation regarding enrichment or reprocessing technology
with any country.
The conferees recommend an additional provision, not
contained in the original Senate bill, that would add a
requirement that appropriate measures will be in place to
ensure that no sensitive nuclear technology (SNT), as defined
in section 4(5) of the Nuclear Nonproliferation Act of 1978 (22
U.S.C. 3203(5)), will be diverted to any person, site,
facility, location, or program not under IAEA safeguards.
The conferees believe that this language is necessary to
ensure that no SNT related to the enrichment of uranium (which
can be used to make highly-enriched uranium for weapons), the
reprocessing of spent nuclear fuel (which can provide plutonium
for weapons), or the production of heavy water (which is used
in reactors that produce weapons-grade plutonium and tritium as
a byproduct) is transferred to India, unless under
circumstances that provide assurance that this technology would
not be diverted to a similar site, facility, location, or
program not associated with peaceful nuclear fuel-cycle
activities.
India currently produces heavy water, operates heavy-
water moderated reactors, reprocesses spent nuclear fuel, and
has a limited uranium enrichment capability. Only a portion of
India's facilities will be under IAEA safeguards, and sensitive
nuclear technologies will reside in India in both safeguarded
and un-safeguarded facilities. The conferees seek to ensure
that the United States does not provide, even inadvertently,
assistance to India that could further India's development of
these technologies for noncivilian purposes. Such assistance
could be viewed as a violation of U.S. obligations under
Article I of the NPT.
The conferees intend that no licenses be issued pursuant
to Parts 110 and 810 of Title 10 of the Code of Federal
Regulations by the Nuclear Regulatory Commission (NRC) and the
Secretary of Energy except under the requirements of
subparagraph (B) of subsection 104(d)(4). Such a restriction on
transfers would also extend to any Department of Energy
authority to transfer enrichment, reprocessing, or heavy water
production-related technology, not pursuant to a Section 123
agreement.
The conferees note that section 104(d)(4) cannot override
the terms of an agreement for cooperation with India arranged
pursuant to section 123 of the Atomic Energy Act that may not
permit such cooperation and would thus bar such exports or
transfers, and the conferees do not intend to create such
authority. They expect that, as in other nuclear cooperation
agreements, the Executive branch would submit an amended or new
nuclear cooperation agreement to cover enrichment,
reprocessing, or heavy water production-related cooperation,
should such a change be undertaken in the future with India.
Such an agreement would not be pursuant to the terms of this
title, and would have to be submitted under the existing
exemption authority contained in section 123 of the AEA.
Section 104(d)(5) contains broad requirements for a
nuclear export accountability program to be carried out with
respect to U.S. exports and re-exports of nuclear materials,
equipment, and technology sold, leased, exported, or reexported
to India. Such a program can provide increased confidence in
India's separation of its civilian from its military nuclear
programs, facilities, materials and personnel, and also would
further ensure United States compliance with Article I of the
NPT and implementation of section 123 a.(1) of the Atomic
Energy Act of 1954. The provision is not intended to reflect
poorly on India's July 18, 2005, Joint Statement commitments
and its March and May 2006 separation documents. Rather, the
conferees believe that the resulting and regular cooperation
between U.S. regulatory agencies, in particular with the NRC,
can provide a basis for even greater cooperation between the
two nations.
Section 104(d)(5) provides a large degree of flexibility
to the President. Clauses (B)(i) and (ii) require sufficient
measures to ensure that all the assurances and conditions of
any licenses or authorizations issued for exports and reexports
to India by the NRC (which are issued under 10 CFR Part 110)
and by the Secretary of Energy (which are issued pursuant to 10
CFR Part 810) are being met and complied with in India. Clause
(B)(ii) would require that, with respect to any authorizations
issued by the Secretary of Energy pursuant to section 57 b. of
the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)): the
identified recipients of the nuclear technology are authorized
to receive the nuclear technology; the nuclear technology
identified for transfer will be used only for safeguarded
nuclear activities and will not be used for any military or
nuclear explosive purpose; and the nuclear technology
identified for transfer will not be retransferred without the
prior consent of the United States, and facilities, equipment,
or materials derived through the use of transferred technology
will not be transferred without the prior consent of the United
States.
Section 104(d)(5)(B)(iii) mandates that, in the event the
IAEA is unable to implement safeguards as required by an
agreement between the United States and India approved pursuant
to this title, there be appropriate assurance that arrangements
will be put in place expeditiously that are consistent with the
requirements of section 123 a.(1) of the Atomic Energy Act of
1954 (42 U.S.C. 2153(a)(1)) regarding the maintenance of
safeguards as set forth in the agreement regardless of whether
the agreement is terminated or suspended for any reason.
Assurances that there will be such ``fall-back safeguards,'' if
needed, are an important feature of agreements for nuclear
cooperation; they enable such safeguards to exist more clearly
in perpetuity. There is always a possibility that budget or
personnel strains in the IAEA will render it unable to fulfill
a safeguards mandate. Such strains would likely have nothing to
do with India, but would have a major impact on the ability of
the United States to assure that U.S. exports were being used
responsibly. The conferees intend to assure that the
requirements of section 123 a.(1) are fully met; they do not
intend to impose a more intrusive regime than arrangements that
have been used before in one or more U.S. agreements for
cooperation.
Section 104(e) makes a conforming amendment to section
123 d. of the Atomic Energy Act of 1954. The purpose of this
provision is to make clear that the U.S.-India agreement on
civil nuclear cooperation, even if exempted from subsection
a.(2) of section 123, may enter into force only if approved by
Congress by a joint resolution of approval, consistent with
current law with regard to an agreement that the President
exempts from any requirement of subsection a. of section 123.
As with any other agreement submitted under section 123 d., the
congressional approval procedures under section 130 i. of the
Atomic Energy Act would apply.
Section 104(f) provides that the authority under
subsection (a)(1) to exempt a U.S.-India agreement on civil
nuclear cooperation will terminate if a joint resolution,
approved as required under section 123 d. (as amended by
subsection (e)), is enacted. The purpose of this provision is
to ensure that a future President may not use the authority of
this title to exempt a new U.S.-India agreement on civil
nuclear cooperation.
Section 104(g) provides for several reports to Congress.
Paragraph (1) requires the President to keep the
appropriate congressional committees fully and currently
informed of the facts and implications of any significant
nuclear activities of India. This requirement includes
information on any material noncompliance on the part of the
Government of India with the nonproliferation commitments
undertaken in the Joint Statement of July 18, 2005, the March
7, 2006, separation plan, the future IAEA-India safeguards
agreement and Additional Protocol, a peaceful nuclear
cooperation agreement between India and the United States, the
terms and conditions of any approved licenses regarding the
export or reexport of nuclear material or dual-use material,
equipment, or technology, and United States laws and
regulations regarding such licenses. This reporting requirement
also encompasses information regarding the construction of a
nuclear facility in India after the date of the enactment of
this title, significant changes in the production by India of
nuclear weapons or in the types or amounts of fissile material
produced, and changes in the purpose or operational status of
any unsafeguarded nuclear fuel cycle activities in India.
The term ``fully and currently informed'' creates an
obligation upon the Executive branch to inform the appropriate
committees whenever significant information becomes available,
rather than waiting to include it in a regularly scheduled
report. This does not mean that the committees can expect daily
or weekly briefings; rather, the Executive branch is trusted to
use common sense in determining how best to discharge its duty
to keep the committees up to date on important information.
Paragraph (2) requires an ``Implementation and Compliance
Report'' by the President to Congress not later than 180 days
after the date on which a civil nuclear cooperation agreement
between the U.S. and India enters into force and annually
thereafter.
This report must include a description of any additional
nuclear facilities and nuclear materials that the Government of
India has placed or intends to place under IAEA safeguards; a
comprehensive listing of all licenses that have been approved
by the Nuclear Regulatory Commission and the Secretary of
Energy for exports and reexports to India under parts 110 and
810 of title 10, Code of Federal Regulations; any licenses
approved by the Department of Commerce for the export or
reexport to India of commodities, related technology, and
software which are controlled for nuclear nonproliferation
reasons on the Nuclear Referral List of the Commerce Control
List maintained under part 774 of title 15, Code of Federal
Regulation, or any successor regulation; any other United
States authorizations for the export or reexport to India of
nuclear materials and equipment; and with respect to each such
license or other form of authorization as described: (1) the
number or other identifying information of each license or
authorization; (2) the name or names of the authorized end user
or end users; (3) the name of the site, facility, or location
in India to which the export or reexport was made; (4) the
terms and conditions included on such licenses and
authorizations; (5) any postshipment verification procedures
that will be applied to such exports or reexports; and (6) the
term of validity of each such license or authorization.
This report must also include information regarding any
significant nuclear commerce between India and other countries,
including any such trade that is not consistent with applicable
NSG guidelines or decisions, or would not meet the standards
applied to exports or reexports of such material, equipment, or
technology of United States origin. In addition, the report
must include either an assessment that India is in full
compliance with the commitments and obligations contained in
the agreements and other documents referenced above; or an
identification and analysis of all compliance issues arising
with regard to the adherence by India to its commitments and
obligations, including (1) the steps the U.S. Government has
taken to remedy or otherwise respond to such compliance issues;
(2) the responses of the Government of India to such steps; (3)
the steps the U.S. Government will take to this end in the
coming year; and (4) an assessment of the implications of any
continued noncompliance, including whether nuclear commerce
with India remains in the national security interest of the
United States.
Further, the report must contain an assessment of whether
India is fully and actively participating in United States and
international efforts to dissuade, isolate, and, if necessary,
sanction and contain Iran for its efforts to acquire weapons of
mass destruction, including a nuclear weapons capability and
the capability to enrich uranium or reprocess nuclear fuel, and
the means to deliver weapons of mass destruction, including a
description of the specific measures that India has taken in
this regard; and if India is not assessed to be fully and
actively participating in these efforts, a description of: the
measures the United States Government has taken to secure
India's full and active participation, the responses of the
Government of India to such measures, and the measures the
United States Government plans to take in the coming year to
secure India's full and active participation.
The report must provide an analysis of whether United
States civil nuclear assistance to India is in any way
assisting India's nuclear weapons program, including through
the use of any U.S. equipment, technology, or nuclear material
by India in an unsafeguarded nuclear facility or nuclear-
weapons related complex; the replication and subsequent use of
any U.S. technology by India in an unsafeguarded nuclear
facility or unsafeguarded nuclear weapons-related complex, or
for any activity related to the research, development, testing,
or manufacture of nuclear explosive devices; and the provision
of nuclear fuel in such a manner as to facilitate the increased
production by India of highly-enriched uranium or plutonium in
unsafeguarded nuclear facilities.
A detailed description is also required regarding U.S.
efforts to promote national or regional progress by India and
Pakistan in disclosing, securing, limiting, and reducing their
fissile material stockpiles, including stockpiles for military
purposes, pending creation of a world-wide fissile material
cut-off regime, including the institution of a Fissile Material
Cut-off Treaty; the responses of India and Pakistan to such
efforts; and assistance that the United States is providing, or
would be able to provide, to India and Pakistan to promote the
aforementioned national and regional progress by India and
Pakistan.
The report must also contain an estimate of the amount of
uranium mined and milled in India during the previous year, the
amount of such uranium that has likely been used or allocated
for the production of nuclear explosive devices, and the rate
of production in India of fissile material for nuclear
explosive devices and of nuclear explosive devices, along with
an estimate of the amount of electricity India's nuclear
reactors produced for civil purposes during the previous year,
and the proportion of such production that can be attributed to
India's declared civil reactors, given that India's military
reactors produce some electricity for use in the civil sector.
In addition, there must be an analysis as to whether imported
uranium has affected the rate of production in India of nuclear
explosive devices.
The report must also provide a detailed description of
efforts and progress made toward the achievement of India's
full participation in the Proliferation Security Initiative and
formal commitment to the Statement of Interdiction Principles
of the PSI; public announcement of its decision to conform its
export control laws, regulations, and policies with the
Australia Group and with the Guidelines, Procedures, Criteria,
and Controls List of the Wassenaar Arrangement; and effective
implementation of these decisions.
Finally, this report requires information regarding the
disposal during the previous year of spent nuclear fuel from
India's civilian nuclear program, and any plans or activities
relating to future disposal of such spent nuclear fuel.
Paragraph (3) allows the President to submit the
aforementioned reports under Paragraph (2) with other annual
reports. The report shall be unclassified but may contain a
classified annex.
Section 105. United States compliance with its Nuclear Nonproliferation
Treaty obligations
Sec. 105 states that nothing in this title constitutes
authority for any action in violation of an obligation of the
United States under the NPT. As stated earlier in this report,
the conferees consider the NPT to be the cornerstone of U.S.
nuclear nonproliferation policy. They expect the Executive
branch to keep its NPT obligations in mind when considering
each export or reexport, transfer, or retransfer pursuant to an
agreement for cooperation, and especially pursuant to such an
agreement with a state that is not a State Party to the NPT.
Section 106. Inoperability of determination and waivers
Sec. 106 states that a determination and any waiver under
section 104 shall cease to be effective if the President
determines that India has detonated a nuclear explosive device
after the date of the enactment of this Act. The conferees
intend this section to make absolutely clear a point that
already follows from section 129 of the Atomic Energy Act (42
U.S.C. 2158). This title affords no waiver from section 129 for
an Indian nuclear detonation after July 18, 2005.
Section 107. MTCR adherent status
Section 107 is included to clarify the status accorded to
India. Section 73 of the Arms Export Control Act (AECA)
mandates sanctions on transfers of MTCR equipment or technology
if the President determines that a foreign person knowingly
exports, transfers, or otherwise engages in the trade of any
MTCR equipment or technology that contributes to the
acquisition, design, development, or production of missiles in
a country that is not an MTCR adherent and would be, if it were
United States-origin equipment or technology, subject to the
jurisdiction of the United States under the AECA; or if a
foreign person conspires to or attempts to engage in such
export, transfer, or trade; or if a foreign person facilitates
such an export, transfer, or trade by any other person; or if
the President has made a determination with respect to a
foreign person under section 11B(b)(1) of the Export
Administration Act of 1979 (50 U.S.C. App. 2410b(b)(1)).
Section 73 of AECA is, however, inapplicable to MTCR adherents
if the export in question is ``any export, transfer, or trading
activity that is authorized by the laws of an MTCR adherent, if
such authorization is not obtained by misrepresentation or
fraud'' or if the export, transfer, or trade of an item is to
an end user in a country that is an MTCR adherent (section
73(b)). Section 73 also provides for the termination of
sanctions when an MTCR adherent takes steps toward effective
judicial enforcement against persons violating the prohibitions
in section 73, if such actions are ``comprehensive'' and are
``performed to the satisfaction of the United States'' and the
findings of such proceedings are satisfactory to the United
States (section 73(c)(1)(A) and (B) and section 73(c)(2)).
Secretary Rice has stated that ``India would not be
considered an `MTCR Adherent' as defined under Section 73''
because:
India has committed to unilaterally adhere to the
Missile Technology Control Regime (MTCR) Guidelines.
The missile sanctions law would generally still apply
to a ``unilateral adherent'' to the MTCR.
Unilateral adherence to the MTCR Guidelines means
that a country makes a unilateral political commitment
to abide by the Guidelines and Annex of the MTCR. In
particular, an MTCR unilateral adherent commits to
control exports of missile-related equipment and
technology according the MTCR Guidelines, including any
subsequent changes to the MTCR Guidelines and Annex.
Inter alia, this means that MTCR unilateral adherent
countries need to have in place laws and regulations
that permit them to control the export of MTCR Annex
equipment and technology consistent with the MTCR
Guidelines.
An ``MTCR Adherent'' is a specially defined status
in terms of Section 73 of the Arms Export Control Act
(also referred to as the missile sanctions law). An
``MTCR Adherent,'' as defined in Section 73 of the
missile sanctions law, is a country that
``participates'' in the MTCR or that, ``pursuant to an
international understanding to which the United States
is a party, controls MTCR equipment and technology in
accordance with the criteria and standards set forth in
the MTCR.'' India's ``unilateral adherence'' to the
MTCR would not meet this requirement.
Since India's unilateral adherence does not qualify it as
an MTCR adherent under section 73 of AECA, the conferees
included section 107 to clarify this point. While the provision
accomplishes this, it is also drafted in such a manner as to
permit India, should it so decide in the future, to enjoy the
benefits of AECA section 73 by becoming a full adherent to the
MTCR. Because the provision states a factual finding by
Congress, the provision would no longer have effect if India
were to meet the requirements laid out as in Secretary Rice's
statement. Under section 107, however, India's transfers of
missile or missile-related equipment, technology and technical
data, remain for now subject to U.S. sanctions if they should
violate subsection 73(a) of the AECA.
Section 108. Technical amendment
Sec. 108 is a technical amendment regarding Section
1112(c)(4) of the Arms Control and Nonproliferation
Authorization Act of 1999 (title XI of the Admiral James W.
Nance and Meg Donovan Foreign Relations Authorization Act,
Fiscal Years 2000 and 2001 (as enacted into law by section
1000(a)(7) of Public Law 106-113 and contained in appendix G of
that Act; 113 Stat. 1501A-486).
Section 109. United States-India Scientific Cooperative Nuclear
Nonproliferation Program
Section 109 authorizes the Secretary of Energy to
establish a cooperative nuclear nonproliferation program to
pursue jointly with scientists from the United States and India
a program to further common nuclear nonproliferation goals,
including scientific research and development efforts, with an
emphasis on nuclear safeguards. The conferees believe that
there are exciting opportunities for cooperative efforts
between U.S. and Indian scientists and engineers in this area,
and they hope that the two countries' civil nuclear power
experts, in particular, will share new ideas and best practices
for the benefit of all. Section 109 is not intended to create
an obligation for India to meet, but rather to open an avenue
for increased cooperation on topics of concern to both
countries.
Subsection (c) mandates that the Secretary of Energy
enter into an agreement with the National Academies to develop
recommendations for the implementation of the cooperative
nonproliferation program. The National Academies, which
include, inter alia, the National Academy of Sciences, the
National Academy of Engineering, and the National Research
Council, have a long and distinguished history of cooperation
with Indian scientists and are skilled at building bridges to
further joint efforts. The conferees encourage the Secretary of
Energy to arrange for this National Academies assistance in the
coming months, even if funds for the cooperative program cannot
be appropriated until fiscal year 2008.
Section 110. Definitions
Section 110 defines terms used in this Act.
TITLE II--UNITED STATES ADDITIONAL PROTOCOL IMPLEMENTATION
Title II is a Senate provision, based almost entirely
upon S. 2489, the U.S. Additional Protocol Implementation Act,
reported by the Senate Committee on Foreign Relations on April
3, 2006, in Senate Report 109-226. It implements the Additional
Protocol between the United States and the International Atomic
Energy Agency (T. Doc. 107-7), to which the Senate gave advice
and consent to ratification on March 31, 2004.
The Senate adopted amendments to the S. 2489 text when it
was debated as title II of this bill, and the conferees
recommend a small number of further amendments. The conferees
hereby incorporate by reference Senate Report 109-226, except
where provisions were later amended either in the Senate or by
the conferees.
Sections 252 and 253 were modified by the Senate,
principally to require that location-specific IAEA
environmental sampling not be permitted 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 a non-
nuclear weapon state. The conferees are persuaded that the IAEA
is unlikely to propose such sampling, given that the United
States, as a nuclear weapon state, is not barred from using
fissile material for military purposes.
The conferees are further persuaded that these sections
will not prevent the United States from fulfilling its
obligations under the Additional Protocol. This is true even
though section 254, also added by the Senate, limits the
purposes that may be construed as covered by the phrase
``necessary to increase the capability of the IAEA to detect
undeclared nuclear activities in a non-nuclear weapon state.''
Subtitle F of title II, Protection of National Security
Information and Activities, was added by the Senate. Section
261(a) provides that 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. Similarly,
under section 261(b), no information of direct national
security significance regarding such locations, sites, or
facilities shall be provided under the Additional Protocol.
These requirements parallel statements that Administration
officials have made for several years regarding how the
Additional Protocol's national security exemption will be
implemented.
Sections 261(c) and 261(d) provide that nothing in this
title 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
or of national security information and other classified
information. These provisions parallel an understanding in the
resolution of ratification approved by the Senate in 2004 that
the Additional Protocol does not require any such disclosure.
The conferees note that these provisions do not bar the
Executive branch, however, from using any other authority that
it may possess to provide classified information to the IAEA.
Section 262(a) provides that no national of a country
designated by the Secretary of State under section 620A of the
Foreign Assistance Act of 1961 (22 U.S.C. 2371) 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. Both the Additional Protocol and the underlying
U.S.-IAEA safeguards agreement allow the United States to bar
individual inspectors from engaging in inspections in the
United States, and the United States has routinely exercised
that right as appropriate. The conferees know of no occasion on
which a national of a state sponsor of terrorism has conducted
an IAEA inspection in this country.
Section 262(b) requires that IAEA inspectors be
accompanied at all times by U.S. Government personnel when
inspecting sites, locations, facilities, or activities in the
United States under the Additional Protocol. The conferees
understand that this provision will not require any change in
current practices.
Section 262(c) provides that 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.
The conferees understand that once this title is enacted, the
Executive branch will resume such assessments.
Subtitle G of title II provides for several reports from
the Executive branch. Sections 271 through 273 provide for
prior notice of sites, locations, facilities, and activities in
the United States to be declared to the IAEA or removed from
that status, along with the reasons for those decisions; and
certification that the necessary security assessments have been
conducted and appropriate measures taken to ensure that
information of direct national security significance will not
be compromised.
Section 274 provides for reports 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 States Party; and on assistance that has been
provided 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 States Party and the verification of the
compliance of such parties with IAEA obligations, with a plan
for providing any needed additional funding. The conferees
believe that the safeguards function is a vital element of U.S.
nonproliferation policy and urge the Executive branch to
maintain robust funding for U.S. assistance to the IAEA, taking
into account the continuing need for improved safeguards in
countries of concern, the additional safeguards load that the
IAEA will have to bear when India begins to engage in large-
scale civil nuclear commerce, and the likely advent of
additional safeguards requirements as the world moves to
increase nuclear power production.
Section 275 provides that the President shall notify
Congress of any notifications issued by the IAEA to the United
States under Article 10 of the Additional Protocol. Article 10
says that the IAEA shall inform the United States of activities
carried out under the Additional Protocol, including those in
response to questions or inconsistencies the IAEA had brought
to the attention of the United States, the results of those
IAEA activities, and the conclusions that the IAEA has drawn.
Article 10 notifications will take place at least annually.
Henry Hyde,
John Boehner,
Tom Lantos,
Managers on the Part of the House.
Richard G. Lugar,
Chuck Hagel,
George Allen,
Bill Frist,
Joe Biden,
Chris Dodd,
Managers on the Part of the Senate.