Text of 123 Agreement

Monday, 21 July 2008 00:00

Media Note
Office of the Spokesman
Washington, DC
August 3, 2007



U.S. and India Release Text of 123 Agreement
The following is the text of the Agreement for Cooperation between the Government of the United States of America and the Government of India concerning peaceful uses of nuclear energy (123 Agreement):

BEGIN TEXT:

AGREEMENT FOR COOPERATION BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF INDIA
CONCERNING PEACEFUL USES OF NUCLEAR ENERGY (123 AGREEMENT)

The Government of India and the Government of the United States of America, hereinafter referred to as the Parties,

RECOGNIZING the significance of civilian nuclear energy for meeting growing global energy demands in a cleaner and more efficient manner;

DESIRING to cooperate extensively in the full development and use of nuclear energy for peaceful purposes as a means of achieving energy security, on a stable, reliable and predictable basis;

WISHING to develop such cooperation on the basis of mutual respect for sovereignty, non-interference in each other's internal affairs, equality, mutual benefit, reciprocity and with due respect for each other's nuclear programmes;

DESIRING to establish the necessary legal framework and basis for cooperation concerning peaceful uses of nuclear energy;

AFFIRMING that cooperation under this Agreement is between two States possessing advanced nuclear technology, both Parties having the same benefits and advantages, both committed to preventing WMD proliferation;

NOTING the understandings expressed in the India - U.S. Joint Statement of July 18, 2005 to enable full civil nuclear energy cooperation with India covering aspects of the associated nuclear fuel cycle;

AFFIRMING their support for the objectives of the International Atomic Energy Agency (IAEA) and its safeguards system, as applicable to India and the United States of America, and its importance in ensuring that international cooperation in development and use of nuclear energy for peaceful purposes is carried out under arrangements that will not contribute to the proliferation of nuclear weapons or other nuclear explosive devices;

NOTING their respective commitments to safety and security of peaceful uses of nuclear energy, to adequate physical protection of nuclear material and effective national export controls;

MINDFUL that peaceful nuclear activities must be undertaken with a view to protecting the environment;

MINDFUL of their shared commitment to preventing the proliferation of weapons of mass destruction; and

DESIROUS of strengthening the strategic partnership between them;

Have agreed on the following:

ARTICLE 1 - DEFINITIONS

For the purposes of this Agreement:

(A) "By-product material" means any radioactive material (except special fissionable material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special fissionable material. By-product material shall not be subject to safeguards or any other form of verification under this Agreement, unless it has been decided otherwise by prior mutual agreement in writing between the two Parties.

(B) "Component" means a component part of equipment, or other item so designated by agreement of the Parties.

(C) "Conversion" means any of the normal operations in the nuclear fuel cycle, preceding fuel fabrication and excluding enrichment, by which uranium is transformed from one chemical form to another - for example, from uranium hexafluoride (UF6) to uranium dioxide (UO2) or from uranium oxide to metal.

(D) "Decommissioning" means the actions taken at the end of a facility's useful life to retire the facility from service in the manner that provides adequate protection for the health and safety of the decommissioning workers and the general public, and for the environment. These actions can range from closing down the facility and a minimal removal of nuclear material coupled with continuing maintenance and surveillance, to a complete removal of residual radioactivity in excess of levels acceptable for unrestricted use of the facility and its site.

(E) "Dual-Use Item" means a nuclear related item which has a technical use in both nuclear and non-nuclear applications.

(F) "Equipment" means any equipment in nuclear operation including reactor, reactor pressure vessel, reactor fuel charging and discharging equipment, reactor control rods, reactor pressure tubes, reactor primary coolant pumps, zirconium tubing, equipment for fuel fabrication and any other item so designated by the Parties.

(G) "High enriched uranium" means uranium enriched to twenty percent or greater in the isotope 235.

(H) "Information" means any information that is not in the public domain and is transferred in any form pursuant to this Agreement and so designated and documented in hard copy or digital form by mutual agreement by the Parties that it shall be subject to this Agreement, but will cease to be information whenever the Party transferring the information or any third party legitimately releases it into the public domain.

(I) "Low enriched uranium" means uranium enriched to less than twenty percent in the isotope 235.

(J) "Major critical component" means any part or group of parts essential to the operation of a sensitive nuclear facility or heavy water production facility.

(K) "Non-nuclear material" means heavy water, or any other material suitable for use in a reactor to slow down high velocity neutrons and increase the likelihood of further fission, as may be jointly designated by the appropriate authorities of the Parties.

(L) "Nuclear material" means (1) source material and (2) special fissionable material. "Source material" means uranium containing the mixture of isotopes occurring in nature; uranium depleted in the isotope 235; thorium; any of the foregoing in the form of metal, alloy, chemical compound, or concentrate; any other material containing one or more of the foregoing in such concentration as the Board of Governors of the IAEA shall from time to time determine; and such other materials as the Board of Governors of the IAEA may determine or as may be agreed by the appropriate authorities of both Parties. "Special fissionable material" means plutonium, uranium-233, uranium enriched in the isotope 233 or 235, any substance containing one or more of the foregoing, and such other substances as the Board of Governors of the IAEA may determine or as may be agreed by the appropriate authorities of both Parties. "Special fissionable material" does not include "source material". Any determination by the Board of Governors of the IAEA under Article XX of that Agency's Statute or otherwise that amends the list of materials considered to be "source material" or "special fissionable material" shall only have effect under this Agreement when both Parties to this Agreement have informed each other in writing that they accept such amendment.

(M) "Peaceful purposes" include the use of information, nuclear material, equipment or components in such fields as research, power generation, medicine, agriculture and industry, but do not include use in, research on, or development of any nuclear explosive device or any other military purpose. Provision of power for a military base drawn from any power network, production of radioisotopes to be used for medical purposes in military environment for diagnostics, therapy and sterility assurance, and other similar purposes as may be mutually agreed by the Parties shall not be regarded as military purpose.

(N) "Person" means any individual or any entity subject to the territorial jurisdiction of either Party but does not include the Parties.

(O) "Reactor" means any apparatus, other than a nuclear weapon or other nuclear explosive device, in which a self-sustaining fission chain reaction is maintained by utilizing uranium, plutonium, or thorium or any combination thereof.

(P) "Sensitive nuclear facility" means any facility designed or used primarily for uranium enrichment, reprocessing of nuclear fuel, or fabrication of nuclear fuel containing plutonium.

(Q) "Sensitive nuclear technology" means any information that is not in the public domain and that is important to the design, construction, fabrication, operation, or maintenance of any sensitive nuclear facility, or other such information that may be so designated by agreement of the Parties.

ARTICLE 2 - SCOPE OF COOPERATION

1. The Parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this Agreement. Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and license requirements concerning the use of nuclear energy for peaceful purposes.

2. The purpose of the Agreement being to enable full civil nuclear energy cooperation between the Parties, the Parties may pursue cooperation in all relevant areas to include, but not limited to, the following:

a. Advanced nuclear energy research and development in such areas as may be agreed between the Parties;
b. Nuclear safety matters of mutual interest and competence, as set out in Article 3;
c. Facilitation of exchange of scientists for visits, meetings, symposia and collaborative research;
d. Full civil nuclear cooperation activities covering nuclear reactors and aspects of the associated nuclear fuel cycleincluding technology transfer on an industrial or commercial scale between the Parties or authorized persons;
e. Development of a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors;
f. Advanced research and development in nuclear sciences including but not limited to biological research, medicine, agriculture and industry, environment and climate change;
g. Supply between the Parties, whether for use by or for the benefit of the Parties or third countries, of nuclear material;
h. Alteration in form or content of nuclear material as provided for in Article 6;
i. Supply between the Parties of equipment, whether for use by or for the benefit of the Parties or third countries;
j. Controlled thermonuclear fusion including in multilateral projects; and
k. Other areas of mutual interest as may be agreed by the Parties.

3. Transfer of nuclear material, non-nuclear material, equipment, components and information under this Agreement may be undertaken directly between the Parties or through authorized persons. Such transfers shall be subject to this Agreement and to such additional terms and conditions as may be agreed by the Parties. Nuclear material, non-nuclear material, equipment, components and information transferred from the territory of one Party to the territory of the other Party, whether directly or through a third country, will be regarded as having been transferred pursuant to this Agreement only upon confirmation, by the appropriate authority of the recipient Party to the appropriate authority of the supplier Party that such items both will be subject to the Agreement and have been received by the recipient Party.

4. The Parties affirm that the purpose of this Agreement is to provide for peaceful nuclear cooperation and not to affect the unsafeguarded nuclear activities of either Party. Accordingly, nothing in this Agreement shall be interpreted as affecting the rights of the Parties to use for their own purposes nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by them independent of any nuclear material, non-nuclear material, equipment, components, information or technology transferred to them pursuant to this Agreement. This Agreement shall be implemented in a manner so as not to hinder or otherwise interfere with any other activities involving the use of nuclear material, non-nuclear material, equipment, components, information or technology and military nuclear facilities produced, acquired or developed by them independent of this Agreement for their own purposes.

ARTICLE 3 - TRANSFER OF INFORMATION

1. Information concerning the use of nuclear energy for peaceful purposes may be transferred between the Parties. Transfers of information may be accomplished through reports, data banks and computer programs and any other means mutually agreed to by the Parties. Fields that may be covered include, but shall not be limited to, the following:

a. Research, development, design, construction, operation, maintenance and use of reactors, reactor experiments, and decommissioning;
b. The use of nuclear material in physical, chemical, radiological and biological research, medicine, agriculture and industry;
c. Fuel cycle activities to meet future world-wide civil nuclear energy needs, including multilateral approaches to which they are parties for ensuring nuclear fuel supply and appropriate techniques for management of nuclear wastes;
d. Advanced research and development in nuclear science and technology;
e. Health, safety, and environmental considerations related to the foregoing;
f. Assessments of the role nuclear power may play in national energy plans;
g. Codes, regulations and standards for the nuclear industry;
h. Research on controlled thermonuclear fusion including bilateral activities and contributions toward multilateral projects such as the International Thermonuclear Experimental Reactor (ITER); and
i. Any other field mutually agreed to by the Parties.

2. Cooperation pursuant to this Article may include, but is not limited to, training, exchange of personnel, meetings, exchange of samples, materials and instruments for experimental purposes and a balanced participation in joint studies and projects.

3. This Agreement does not require the transfer of any information regarding matters outside the scope of this Agreement, or information that the Parties are not permitted under their respective treaties, national laws, or regulations to transfer.


4. Restricted Data, as defined by each Party, shall not be transferred under this Agreement.

ARTICLE 4 - NUCLEAR TRADE

1. The Parties shall facilitate nuclear trade between themselves in the mutual interests of their respective industry, utilities and consumers and also, where appropriate, trade between third countries and either Party of items obligated to the other Party. The Parties recognize that reliability of supplies is essential to ensure smooth and uninterrupted operation of nuclear facilities and that industry in both the Parties needs continuing reassurance that deliveries can be made on time in order to plan for the efficient operation of nuclear installations.

2. Authorizations, including export and import licenses as well as authorizations or consents to third parties, relating to trade, industrial operations or nuclear material movement should be consistent with the sound and efficient administration of this Agreement and should not be used to restrict trade. It is further agreed that if the relevant authority of the concerned Party considers that an application cannot be processed within a twomonth period it shall immediately, upon request, provide reasoned information to the submitting Party. In the event of a refusal to authorize an application or a delay exceeding four months from the date of the first application the Party of the submitting persons or undertakings may call for urgent consultations under Article 13 of this Agreement, which shall take place at the earliest opportunity and in any case not later than 30 days after such a request.

ARTICLE 5 - TRANSFER OF NUCLEAR MATERIAL, NON-NUCLEAR MATERIAL, EQUIPMENT, COMPONENTS AND RELATED TECHNOLOGY

1. Nuclear material, non-nuclear material, equipment and components may be transferred for applications consistent with this Agreement. Any special fissionable material transferred under this Agreement shall be low enriched uranium, except as provided in paragraph 5.

2. Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the Parties' respective applicable laws, regulations and license policies.

3. Natural or low enriched uranium may be transferred for use as fuel in reactor experiments and in reactors, for conversion or fabrication, or for such other purposes as may be agreed to by the Parties.

4. The quantity of nuclear material transferred under this Agreement shall be consistent with any of the following purposes: use in reactor experiments or the loading of reactors, the efficient and continuous conduct of such reactor experiments or operation of reactors for their lifetime, use as samples, standards, detectors, and targets, and the accomplishment of other purposes as may be agreed by the Parties.

5. Small quantities of special fissionable material may be transferred for use as samples, standards, detectors, and targets, and for such other purposes as the Parties may agree.

6.

(a) The United States has conveyed its commitment to the reliable supply of fuel to India. Consistent with the July 18, 2005, Joint Statement, the United States has also reaffirmed its assurance to create the necessary conditions for India to have assured and full access to fuel for its reactors. As part of its implementation of the July 18, 2005, Joint Statement the United States is committed to seeking agreement from the U.S. Congress to amend its domestic laws and to work with friends and allies to adjust the practices of the Nuclear Suppliers Group to create the necessary conditions for India to obtain full access to the international fuel market, including reliable, uninterrupted and continual access to fuel supplies from firms in several nations.

(b) To further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps:

i) The United States is willing to incorporate assurances regarding fuel supply in the bilateral U.S.-India agreement on peaceful uses of nuclear energy under Section 123 of the U.S. Atomic Energy Act, which would be submitted to the U.S. Congress.

ii) The United States will join India in seeking to negotiate with the IAEA an India-specific fuel supply agreement.

iii) 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.

iv) If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.

(c) In light of the above understandings with the United States, an India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards to guard against withdrawal of safeguarded nuclear material from civilian use at any time as well as providing for corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.

ARTICLE 6 - NUCLEAR FUEL CYCLE ACTIVITIES

In keeping with their commitment to full civil nuclear cooperation, both Parties, as they do with other states with advanced nuclear technology, may carry out the following nuclear fuel cycle activities:

i) Within the territorial jurisdiction of either Party, enrichment up to twenty percent in the isotope 235 of uranium transferred pursuant to this Agreement, as well as of uranium used in or produced through the use of equipment so transferred, may be carried out.

ii) Irradiation within the territorial jurisdiction of either Party of plutonium, uranium-233, high enriched uranium and irradiated nuclear material transferred pursuant to this Agreement or used in or produced through the use of non-nuclear material, nuclear material or equipment so transferred may be carried out.

iii) With a view to implementing full civil nuclear cooperation as envisioned in the Joint Statement of the Parties of July 18, 2005, the Parties grant each other consent to reprocess or otherwise alter in form or content nuclear material transferred pursuant to this Agreement and nuclear material and by-product material used in or produced through the use of nuclear material, non-nuclear material, or equipment so transferred. To bring these rights into effect, India will establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards and the Parties will agree on arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility. Consultations on arrangements and procedures will begin within six months of a request by either Party and will be concluded within one year. The Parties agree on the application of IAEA safeguards to all facilities concerned with the above activities. These arrangements and procedures shall include provisions with respect to physical protection standards set out in Article 8, storage standards set out in Article 7, and environmental protections set forth in Article 11 of this Agreement, and such other provisions as may be agreed by the Parties. Any special fissionable material that may be separated may only be utilized in national facilities under IAEA safeguards.

iv) Post-irradiation examination involving chemical dissolution or separation of irradiated nuclear material transferred pursuant to this Agreement or irradiated nuclear material used in or produced through the use of non-nuclear material, nuclear material or equipment so transferred may be carried out.

ARTICLE 7 - STORAGE AND RETRANSFERS

1. Plutonium and uranium 233 (except as either may be contained in irradiated fuel elements), and high enriched uranium, transferred pursuant to this Agreement or used in or produced through the use of material or equipment so transferred, may be stored in facilities that are at all times subject, as a minimum, to the levels of physical protection that are set out in IAEA document INFCIRC 225/REV 4 as it may be revised and accepted by the Parties. Each Party shall record such facilities on a list, made available to the other Party. A Party's list shall be held confidential if that Party so requests. Either Party may make changes to its list by notifying the other Party in writing and receiving a written acknowledgement. Such acknowledgement shall be given no later than thirty days after the receipt of the notification and shall be limited to a statement that the notification has been received. If there are grounds to believe that the provisions of this sub-Article are not being fully complied with, immediate consultations may be called for. Following upon such consultations, each Party shall ensure by means of such consultations that necessary remedial measures are taken immediately. Such measures shall be sufficient to restore the levels of physical protection referred to above at the facility in question. However, if the Party on whose territory the nuclear material in question is stored determines that such measures are not feasible, it will shift the nuclear material to another appropriate, listed facility it identifies.

2. Nuclear material, non-nuclear material, equipment, components, and information transferred pursuant to this Agreement and any special fissionable material produced through the use of nuclear material, non-nuclear material or equipment so transferred shall not be transferred or re-transferred to unauthorized persons or, unless the Parties agree, beyond the recipient Party's territorial jurisdiction.

ARTICLE 8 - PHYSICAL PROTECTION

1. Adequate physical protection shall be maintained with respect to nuclear material and equipment transferred pursuant to this Agreement and nuclear material used in or produced through the use of nuclear material, non-nuclear material or equipment so transferred.

2. To fulfill the requirement in paragraph 1, each Party shall apply measures in accordance with (i) levels of physical protection at least equivalent to the recommendations published in IAEA document INFCIRC/225/Rev.4 entitled "The Physical Protection of Nuclear Material and Nuclear Facilities," and in any subsequent revisions of that document agreed to by the Parties, and (ii) the provisions of the 1980 Convention on the Physical Protection of Nuclear Material and any amendments to the Convention that enter into force for both Parties.

3. The Parties will keep each other informed through diplomatic channels of those agencies or authorities having responsibility for ensuring that levels of physical protection for nuclear material in their territory or under their jurisdiction or control are adequately met and having responsibility for coordinating response and recovery operations in the event of unauthorized use or handling of material subject to this Article. The Parties will also keep each other informed through diplomatic channels of the designated points of contact within their national authorities to cooperate on matters of out-of-country transportation and other matters of mutual concern.

4. The provisions of this Article shall be implemented in such a manner as to avoid undue interference in the Parties' peaceful nuclear activities and so as to be consistent with prudent management practices required for the safe and economic conduct of their peaceful nuclear programs.

ARTICLE 9 - PEACEFUL USE

Nuclear material, equipment and components transferred pursuant to this Agreement and nuclear material and by-product materialused in or produced through the use of any nuclear material, equipment, and components so transferred shall not be used by the recipient Party for any nuclear explosive device, for research on or development of any nuclear explosive device or for any military purpose.

ARTICLE 10 - IAEA SAFEGUARDS

1. Safeguards will be maintained with respect to all nuclear materials and equipment transferred pursuant to this Agreement, and with respect to all special fissionable material used in or produced through the use of such nuclear materials and equipment, so long as the material or equipment remains under the jurisdiction or control of the cooperating Party.

2. Taking into account Article 5.6 of this Agreement, India agrees that nuclear material and equipment transferred to India by the United States of America pursuant to this Agreement and any nuclear material used in or produced through the use of nuclear material, non-nuclear material, equipment or components so transferred shall be subject to safeguards in perpetuity in accordance with the India-specific Safeguards Agreement between India and the IAEA [identifying data] and an Additional Protocol, when in force.

3. Nuclear material and equipment transferred to the United States of America pursuant to this Agreement and any nuclear material used in or produced through the use of any nuclear material, non-nuclear material, equipment, or components so transferred shall be subject to the Agreement between the United States of America and the IAEA for the application of safeguards in the United States of America, done at Vienna November 18, 1977, which entered into force on December 9, 1980, and an Additional Protocol, when in force.

4. If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should consult and agree on appropriate verification measures.

5. Each Party shall take such measures as are necessary to maintain and facilitate the application of IAEA safeguards in its respective territory provided for under this Article.

6. Each Party shall establish and maintain a system of accounting for and control of nuclear material transferred pursuant to this Agreement and nuclear material used in or produced through the use of any material, equipment, or components so transferred. The procedures applicable to India shall be those set forth in the India-specific Safeguards Agreement referred to in Paragraph 2 of this Article.

7. Upon the request of either Party, the other Party shall report or permit the IAEA to report to the requesting Party on the status of all inventories of material subject to this Agreement.

8. The provisions of this Article shall be implemented in such a manner as to avoid hampering, delay, or undue interference in the Parties' peaceful nuclear activities and so as to be consistent with prudent management practices required for the safe and economic conduct of their peaceful nuclear programs.

ARTICLE 11 - ENVIRONMENTAL PROTECTION

The Parties shall cooperate in following the best practices for minimizing the impact on the environment from any radioactive, chemical or thermal contamination arising from peaceful nuclear activities under this Agreement and in related matters of health and safety.

ARTICLE 12 - IMPLEMENTATION OF THE AGREEMENT

1. This Agreement shall be implemented in a manner designed:

a) to avoid hampering or delaying the nuclear activities in the territory of either Party;
b) to avoid interference in such activities;
c) to be consistent with prudent management practices required for the safe conduct of such activities; and
d) to take full account of the long term requirements of the nuclear energy programs of the Parties.

2. The provisions of this Agreement shall not be used to:

a) secure unfair commercial or industrial advantages or to restrict trade to the disadvantage of persons and undertakings of either Party or hamper their commercial or industrial interests, whether international or domestic;
b) interfere with the nuclear policy or programs for the promotion of the peaceful uses of nuclear energy including research and development; or
c) impede the free movement of nuclear material, non nuclear material and equipment supplied under this Agreement within the territory of the Parties.

3. When execution of an agreement or contract pursuant to this Agreement between Indian and United States organizations requires exchanges of experts, the Parties shall facilitate entry of the experts to their territories and their stay therein consistent with national laws, regulations and practices. When other cooperation pursuant to this Agreement requires visits of experts, the Parties shall facilitate entry of the experts to their territory and their stay therein consistent with national laws, regulations and practices.

ARTICLE 13 - CONSULTATIONS

1. The Parties undertake to consult at the request of either Party regarding the implementation of this Agreement and the development of further cooperation in the field of peaceful uses of nuclear energy on a stable, reliable and predictable basis. The Parties recognize that such consultations are between two States with advanced nuclear technology, which have agreed to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology.

2. Each Party shall endeavor to avoid taking any action that adversely affects cooperation envisaged under Article 2 of this Agreement. If either Party at any time following the entry into force of this Agreement does not comply with the provisions of this Agreement, the Parties shall promptly hold consultations with a view to resolving the matter in a way that protects the legitimate interests of both Parties, it being understood that rights of either Party under Article 16.2 remain unaffected.

3. Consultations under this Article may be carried out by a Joint Committee specifically established for this purpose. A Joint Technical Working Group reporting to the Joint Committee will be set up to ensure the fulfillment of the requirements of the Administrative Arrangements referred to in Article 17.


ARTICLE 14 - TERMINATION AND CESSATION OF COOPERATION

1. Either Party shall have the right to terminate this Agreement prior to its expiration on one year's written notice to the other Party. A Party giving notice of termination shall provide the reasons for seeking such termination. The Agreement shall terminate one year from the date of the written notice, unless the notice has been withdrawn by the providing Party in writing prior to the date of termination.

2. Before this Agreement is terminated pursuant to paragraph 1 of this Article, the Parties shall consider the relevant circumstances and promptly hold consultations, as provided in Article 13, to address the reasons cited by the Party seeking termination. The Party seeking termination has the right to cease further cooperation under this Agreement if it determines that a mutually acceptable resolution of outstanding issues has not been possible or cannot be achieved through consultations. The Parties agree to consider carefully the circumstances that may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a Party's serious concern about a changed security environment or as a response to similar actions by other States which could impact national security.

3. If a Party seeking termination cites a violation of this Agreement as the reason for notice for seeking termination, the Parties shall consider whether the action was caused inadvertently or otherwise and whether the violation could be considered as material. No violation may be considered as being material unless corresponding to the definition of material violation or breach in the Vienna Convention on the Law of Treaties. If a Party seeking termination cites a violation of an IAEA safeguards agreement as the reason for notice for seeking termination, a crucial factor will be whether the IAEA Board of Governors has made a finding of non-compliance.

4. Following the cessation of cooperation under this Agreement, either Party shall have the right to require the return by the other Party of any nuclear material, equipment, non-nuclear material or components transferred under this Agreement and any special fissionable material produced through their use. A notice by a Party that is invoking the right of return shall be delivered to the other Party on or before the date of termination of this Agreement. The notice shall contain a statement of the items subject to this Agreement as to which the Party is requesting return. Except as provided in provisions of Article 16.3, all other legal obligations pertaining to this Agreement shall cease to apply with respect to the nuclear items remaining on the territory of the Party concerned upon termination of this Agreement.

5. The two Parties recognize that exercising the right of return would have profound implications for their relations. If either Party seeks to exercise its right pursuant to paragraph 4 of this Article, it shall, prior to the removal from the territory or from the control of the other Party of any nuclear items mentioned in paragraph 4, undertake consultations with the other Party. Such consultations shall give special consideration to the importance of uninterrupted operation of nuclear reactors of the Party concerned with respect to the availability of nuclear energy for peaceful purposes as a means of achieving energy security. Both Parties shall take into account the potential negative consequences of such termination on the on-going contracts and projects initiated under this Agreement of significance for the respective nuclear programmes of either Party.

6. If either Party exercises its right of return pursuant to paragraph 4 of this Article, it shall, prior to the removal from the territory or from the control of the other Party, compensate promptly that Party for the fair market value thereof and for the costs incurred as a consequence of such removal. If the return of nuclear items is required, the Parties shall agree on methods and arrangements for the return of the items, the relevant quantity of the items to be returned, and the amount of compensation that would have to be paid by the Party exercising the right to the other Party.

7. Prior to return of nuclear items, the Parties shall satisfy themselves that full safety, radiological and physical protection measures have been ensured in accordance with their existing national regulations and that the transfers pose no unreasonable risk to either Party, countries through which the nuclear items may transit and to the global environment and are in accordance with existing international regulations.

8. The Party seeking the return of nuclear items shall ensure that the timing, methods and arrangements for return of nuclear items are in accordance with paragraphs 5, 6 and 7. Accordingly, the consultations between the Parties shall address mutual commitments as contained in Article 5.6. It is not the purpose of the provisions of this Article regarding cessation of cooperation and right of return to derogate from the rights of the Parties under Article 5.6.

9. The arrangements and procedures concluded pursuant to Article 6(iii) shall be subject to suspension by either Party in exceptional circumstances, as defined by the Parties, after consultations have been held between the Parties aimed at reaching mutually acceptable resolution of outstanding issues, while taking into account the effects of such suspension on other aspects of cooperation under this Agreement.

ARTICLE 15 - SETTLEMENT OF DISPUTES

Any dispute concerning the interpretation or implementation of the provisions of this Agreement shall be promptly negotiated by the Parties with a view to resolving that dispute.

ARTICLE 16 - ENTRY INTO FORCE AND DURATION

1. This Agreement shall enter into force on the date on which the Parties exchange diplomatic notes informing each other that they have completed all applicable requirements for its entry into force.

2. This Agreement shall remain in force for a period of40 years. It shall continue in force thereafter for additional periods of 10 years each. Each Party may, by giving 6 months written notice to the other Party, terminate this Agreement at the end of the initial 40 year period or at the end of any subsequent 10 year period.

3. Notwithstanding the termination or expiration of this Agreement or withdrawal of a Party from this Agreement, Articles 5.6(c), 6, 7, 8, 9, 10 and 15 shall continue in effect so long as any nuclear material, non-nuclear material, by-product material, equipment or components subject to these articles remains in the territory of the Party concerned or under its jurisdiction or control anywhere, or until such time as the Parties agree that such nuclear material is no longer usable for any nuclear activity relevant from the point of view of safeguards.

4. This Agreement shall be implemented in good faith and in accordance with the principles of international law.

5. The Parties may consult, at the request of either Party, on possible amendments to this Agreement. This Agreement may be amended if the Parties so agree. Any amendment shall enter into force on the date on which the Parties exchange diplomatic notes informing each other that their respective internal legal procedures necessary for the entry into force have been completed.

ARTICLE 17 - ADMINISTRATIVE ARRANGEMENT

1. The appropriate authorities of the Parties shall establish an Administrative Arrangement in order to provide for the effective implementation of the provisions of this Agreement.

2. The principles of fungibility and equivalence shall apply to nuclear material and non-nuclear material subject to this Agreement. Detailed provisions for applying these principles shall be set forth in the Administrative Arrangement.

3. The Administrative Arrangement established pursuant to this Article may be amended by agreement of the appropriate authorities of the Parties.

IN WITNESS WHEREOF the undersigned, being duly authorized, have signed this Agreement.

DONE at , this day of , 200 , in duplicate.

FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:

FOR THE GOVERNMENT
OF INDIA:

AGREED MINUTE

During the negotiation of the Agreement for Cooperation Between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy ("the Agreement") signed today, the following understandings, which shall be an integral part of the Agreement, were reached.

Proportionality

For the purposes of implementing the rights specified in Articles 6 and 7 of the Agreement with respect to special fissionable material and by-product material produced through the use of nuclear material and non-nuclear material, respectively, transferred pursuant to the Agreement and not used in or produced through the use of equipment transferred pursuant to the Agreement, such rights shall in practice be applied to that proportion of special fissionable material and by-product material produced that represents the ratio of transferred nuclear material and non-nuclear material, respectively, used in the production of the special fissionable material and by-product material to the total amount of nuclear material and non-nuclear material so used, and similarly for subsequent generations.

By-product material

The Parties agree that reporting and exchanges of information on by-product material subject to the Agreement will be limited to the following:

(1) Both Parties would comply with the provisions as contained in the IAEA document GOV/1999/19/Rev.2, with regard to by-product material subject to the Agreement.

(2) With regard to tritium subject to the Agreement, the Parties will exchange annually information pertaining to its disposition for peaceful purposes consistent with Article 9 of this Agreement.

FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:

FOR THE GOVERNMENT
OF INDIA:

END TEXT

2007/658




Released on August 3, 2007

 

The Text of Hyde Act

Monday, 21 July 2008 00:00

H. R. 5682
One Hundred Ninth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the third day of January, two thousand and six
An Act
To exempt from certain requirements of the Atomic Energy Act of 1954 a proposed
nuclear agreement for cooperation with India.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
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—
H. R. 5682—2
(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
H. R. 5682—3
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) 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
H. R. 5682—4
(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.
H. R. 5682—5
(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
H. R. 5682—6
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.—
H. R. 5682—7
(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 nuclearweapon
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.—
H. R. 5682—8
(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.
H. R. 5682—9
(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;
H. R. 5682—10
(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;
H. R. 5682—11
(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;
H. R. 5682—12
(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 weaponsrelated
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 cutoff
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
H. R. 5682—13
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. 1501A–
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
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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)).
H. R. 5682—15
(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)).
H. R. 5682—16
(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 nuclearweapon
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.
H. R. 5682—17
(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-nuclearweapon
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. 107–7).
(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
H. R. 5682—18
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-NUCLEARWEAPON
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
H. R. 5682—19
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.—
H. R. 5682—20
(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.
H. R. 5682—21
(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
H. R. 5682—22
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
H. R. 5682—23
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
H. R. 5682—24
(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—
H. R. 5682—25
(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 WIDEAREA
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-nuclearweapon
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 nonnuclear-
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
H. R. 5682—26
(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 locationspecific
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 nonnuclear-
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.
H. R. 5682—27
(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.
H. R. 5682—28
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.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

 

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My India, My Pride

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Fundamental Rights

The Constitution offers all citizens, individually and collectively, some basic freedoms.

Fundamental Duties

By the 42nd Amendment of the Constitution, adopted in 1976, Fundamental Duties of the citizens have also been enumerated. Article 51 'A', contained in Part IV A of the Constitution deals with Fundamental Duties. These enjoin upon a citizen among other things, to abide by the Constitution, to cherish and follow noble ideals, which inspired India's struggle for freedom, to defend the country and render national service when called upon to do so, and to promote harmony and spirit of common brotherhood transcending religious, linguistic and regional or sectional diversities.

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