[109th Congress Public Law 401]
[From the U.S. Government Printing Office]
[DOCID: f:publ401.109]
[[Page 2725]]
UNITED STATES AND INDIA NUCLEAR COOPERATION
[[Page 120 STAT. 2726]]
Public Law 109-401
109th Congress
An Act
To exempt from certain requirements of the Atomic Energy Act of 1954 a
proposed nuclear agreement for cooperation with India. <<NOTE: Dec. 18,
2006 - [H.R. 5682]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TITLE I-- <<NOTE: Henry J. Hyde United States-India Peaceful Atomic
Energy Cooperation Act of 2006.>> UNITED STATES AND INDIA NUCLEAR
COOPERATION
SEC. 101. <<NOTE: 22 USC 8001 note.>> SHORT TITLE.
This title may be cited as the ``Henry J. Hyde United States-India
Peaceful Atomic Energy Cooperation Act of 2006''.
SEC. 102. <<NOTE: 22 USC 8001.>> 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--
[[Page 120 STAT. 2727]]
(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. <<NOTE: 22 USC 8002.>> 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
[[Page 120 STAT. 2728]]
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 the
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) <<NOTE: India. Pakistan. People's Republic of
China.>> 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
[[Page 120 STAT. 2729]]
(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. <<NOTE: 22 USC 8003.>> 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) <<NOTE: India.>> 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.
[[Page 120 STAT. 2730]]
(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) I <<NOTE: President. Reports.>> n 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
[[Page 120 STAT. 2731]]
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.--
[[Page 120 STAT. 2732]]
(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) <<NOTE: President.>> 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) <<NOTE: Certification.>> 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.--
[[Page 120 STAT. 2733]]
(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) <<NOTE: President.>> 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) <<NOTE: President.>> 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.
[[Page 120 STAT. 2734]]
(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) <<NOTE: President.>> 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;
[[Page 120 STAT. 2735]]
(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) <<NOTE: President.>> 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;
[[Page 120 STAT. 2736]]
(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;
[[Page 120 STAT. 2737]]
(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
[[Page 120 STAT. 2738]]
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. <<NOTE: 22 USC 8004.>> 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. <<NOTE: President. 22 USC 8005.>> 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. <<NOTE: 22 USC 8006.>> 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. 1501A-486)) <<NOTE: 22 USC 2652c.>> 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
[[Page 120 STAT. 2739]]
Atomic Energy Cooperation Act of 2006 as relates to
verification or compliance matters; and''.
SEC. 109. <<NOTE: 22 USC 8007.>> 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 <<NOTE: Contracts.>> 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. <<NOTE: 22 USC 8008.>> 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)).
[[Page 120 STAT. 2740]]
(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 pound 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)).
[[Page 120 STAT. 2741]]
(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-- <<NOTE: United States Additional Protocol Implementation
Act.>> UNITED STATES ADDITIONAL PROTOCOL IMPLEMENTATION
SEC. 201. <<NOTE: 22 USC 8101 note.>> SHORT TITLE.
This title may be cited as the ``United States Additional Protocol
Implementation Act''.
SEC. 202. <<NOTE: 22 USC 8101.>> 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.
[[Page 120 STAT. 2742]]
(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. <<NOTE: 22 USC 8102.>> 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. 107-7).
(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
[[Page 120 STAT. 2743]]
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. <<NOTE: 22 USC 8103.>> 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. <<NOTE: 22 USC 8111.>> AUTHORITY.
(a) <<NOTE: President.>> 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
[[Page 120 STAT. 2744]]
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. <<NOTE: 22 USC 8121.>> REQUIREMENT FOR AUTHORITY TO CONDUCT
COMPLEMENTARY ACCESS.
(a) Prohibition.--No complementary access to any location in the
United States shall take place pursuant to the Additional Protocol
without the authorization of the United States Government in accordance
with the requirements of this 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. <<NOTE: 22 USC 8122.>> PROCEDURES FOR COMPLEMENTARY ACCESS.
(a) In General.--Each instance of complementary access to a location
in the United States under the Additional Protocol shall be conducted in
accordance with this 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.--
[[Page 120 STAT. 2745]]
(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. <<NOTE: 22 USC 8123.>> 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.
[[Page 120 STAT. 2746]]
(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) <<NOTE: Courts.>> 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
[[Page 120 STAT. 2747]]
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. <<NOTE: 22 USC 8124.>> PROHIBITED ACTS RELATING TO
COMPLEMENTARY ACCESS.
It shall be unlawful for any person willfully to fail or refuse to
permit, or to disrupt, delay, or otherwise impede, a complementary
access authorized by this subtitle or an entry in connection with such
access.
Subtitle C--Confidentiality of Information
SEC. 231. <<NOTE: 22 USC 8131.>> 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. <<NOTE: 22 USC 8141.>> 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. <<NOTE: 22 USC 8142.>> 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. <<NOTE: Deadline.>> If,
within 15 days after receiving the notice, the person
requests a hearing, the
[[Page 120 STAT. 2748]]
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. <<NOTE: Deadline.>> 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.-- <<NOTE: Deadline.>> 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
[[Page 120 STAT. 2749]]
(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. <<NOTE: 22 USC 8143.>> SPECIFIC ENFORCEMENT.
(a) Jurisdiction.--The district courts of the United States shall
have jurisdiction over civil actions brought by the head of an executive
agency designated under section 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. <<NOTE: 22 USC 8151.>> NOTIFICATION TO CONGRESS OF IAEA BOARD
APPROVAL OF WIDE-AREA ENVIRONMENTAL SAMPLING.
(a) <<NOTE: Deadline. President.>> 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 con-
tain--
[[Page 120 STAT. 2750]]
(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. <<NOTE: 22 USC 8152.>> APPLICATION OF NATIONAL SECURITY
EXCLUSION TO WIDE-AREA ENVIRONMENTAL SAMPLING.
In accordance with Article 1(b) of the Additional Protocol, the
United States shall not permit any wide-area environmental sampling
proposed by the IAEA to be conducted at a specified location in the
United States under Article 9 of the Additional Protocol unless the
President has determined and reported to the appropriate congressional
committees with respect to that proposed use of environmental sampling
that--
(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. <<NOTE: President. 22 USC 8153.>> APPLICATION OF NATIONAL
SECURITY EXCLUSION TO LOCATION-SPECIFIC ENVIRONMENTAL
SAMPLING.
In accordance with Article 1(b) of the Additional Protocol, the
United States shall not permit any location-specific environmental
sampling in the United States under Article 5 of the Additional Protocol
unless the President has determined and reported to the appropriate
congressional committees with respect to that proposed use of
environmental sampling that--
(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
[[Page 120 STAT. 2751]]
(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. <<NOTE: 22 USC 8154.>> 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. <<NOTE: 22 USC 8161.>> PROTECTION OF CERTAIN INFORMATION.
(a) Locations and Facilities of Direct National Security
Significance.--No current or former Department of Defense or Department
of Energy location, site, or facility of direct national security
significance shall be declared or be subject to IAEA inspection under
the Additional Protocol.
(b) Information of Direct National Security Significance.--No
information of direct national security significance regarding any
location, site, or facility associated with activities of the Department
of Defense or the Department of Energy shall be provided under the
Additional Protocol.
(c) Restricted Data.--Nothing in this 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. <<NOTE: 22 USC 8162.>> IAEA INSPECTIONS AND VISITS.
(a) Certain Individuals Prohibited From Obtaining Access.--No
national of a country designated by the Secretary of State under section
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.
[[Page 120 STAT. 2752]]
(c) <<NOTE: President.>> 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-- <<NOTE: President.>> Reports
SEC. 271. <<NOTE: 22 USC 8171.>> REPORT ON INITIAL UNITED STATES
DECLARATION.
Not later than 60 days before submitting the initial United States
declaration to the IAEA under the Additional Protocol, the President
shall submit to Congress a list of the sites, locations, facilities, and
activities in the United States that the President intends to declare to
the IAEA, and a report thereon.
SEC. 272. <<NOTE: 22 USC 8172.>> REPORT ON REVISIONS TO INITIAL UNITED
STATES DECLARATION.
Not later than 60 days before submitting to the IAEA any revisions
to the United States declaration submitted under the Additional
Protocol, the President shall submit to Congress a list of any sites,
locations, facilities, or activities in the United States that the
President intends to add to or remove from the declaration, and a report
thereon.
SEC. 273. <<NOTE: 22 USC 8173.>> 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. <<NOTE: 22 USC 8174.>> REPORT ON EFFORTS TO PROMOTE THE
IMPLEMENTATION OF ADDITIONAL PROTOCOLS.
Not later than 180 days after the entry into force of the Additional
Protocol, the President shall submit to the appropriate congressional
committees a report on--
(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.
[[Page 120 STAT. 2753]]
SEC. 275. <<NOTE: 22 USC 8175.>> NOTICE OF IAEA NOTIFICATIONS.
The President shall notify Congress of any notifications issued by
the IAEA to the United States under Article 10 of the Additional
Protocol.
Subtitle H--Authorization of Appropriations
SEC. 281. <<NOTE: 22 USC 8181.>> AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title.
Approved December 18, 2006.
LEGISLATIVE HISTORY--H.R. 5682 (S. 3709):
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HOUSE REPORTS: No. 109-590, Pt. 1 (Comm. on International
Relations) and 109-721 (Comm. of Conference).
SENATE REPORTS: No. 109-288 accompanying S. 3709 (Comm. on Foreign
Relations).
CONGRESSIONAL RECORD, Vol. 152 (2006):
July 26, considered and passed House.
Nov. 16, considered and passed Senate, amended, in lieu of
S. 3709.
Dec. 8, House and Senate agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 42 (2006):
Dec. 18, Presidential remarks and statement.
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