[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5682 Engrossed Amendment Senate (EAS)]
In the Senate of the United States,
November 16, 2006.
Resolved, That the bill from the House of Representatives (H.R.
5682) entitled ``An Act to exempt from certain requirements of the
Atomic Energy Act of 1954 a proposed nuclear agreement for cooperation
with India.'', do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
TITLE I--UNITED STATES-INDIA PEACEFUL ATOMIC ENERGY COOPERATION
SECTION 101. SHORT TITLE.
This title may be cited as the ``United States-India Peaceful
Atomic Energy Cooperation Act''.
SEC. 102. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) strong bilateral relations with India are in the
national interest of the United States;
(2) the United States and India share common democratic
values and the potential for increasing and sustained economic
engagement;
(3) commerce in civil nuclear energy with India by the
United States and other countries has the potential to benefit
the people of all countries;
(4) such commerce also represents a significant change in
United States policy regarding commerce with countries not
parties to the Nuclear Non-Proliferation Treaty, which remains
the foundation of the international non-proliferation regime;
(5) 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
non-proliferation regimes, including, in particular, the
Guidelines of the Nuclear Suppliers Group (NSG); and
(6) 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. DECLARATION OF POLICY CONCERNING UNITED STATES-INDIA PEACEFUL
ATOMIC ENERGY COOPERATION.
It shall be the policy of the United States with respect to any
peaceful atomic energy cooperation between the United States and
India--
(1) to achieve as quickly as possible a cessation of the
production by India and Pakistan of fissile materials for
nuclear weapons and other nuclear explosive devices;
(2) to achieve as quickly as possible the Government of
India's adherence to, and cooperation in, the full range of
international non-proliferation regimes and activities,
including India's--
(A) full participation in the Proliferation
Security Initiative;
(B) formal commitment to the Statement of
Interdiction Principles;
(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 Controls List of the
Wassenaar Arrangement; and
(D) demonstration of satisfactory progress toward
implementing the decision described in subparagraph
(C);
(3) to ensure that India remains in full compliance with
its non-proliferation, arms control, and disarmament
agreements, obligations, and commitments;
(4) to ensure that any safeguards agreement or Additional
Protocol thereto to which India is a party with the
International Atomic Energy Agency (IAEA) can reliably
safeguard any export or reexport to India of any nuclear
materials and equipment;
(5) to meet the requirements set forth in subsections a.(1)
and a.(3)-a.(9) of section 123 of the Atomic Energy Act of 1954
(42 U.S.C. 2153);
(6) to 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 multilateral Nuclear
Suppliers Group and the rules and practices regarding NSG
decision-making;
(7) 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, to work with members of the Nuclear Suppliers Group,
individually and collectively, to further restrict the
transfers of such equipment and technologies, including to
India;
(8) to maintain the fullest possible international support
for, adherence to, and compliance with the Nuclear Non-
Proliferation Treaty; and
(9) that exports of nuclear fuel to India should not
contribute to, or in any way encourage, increases in the
production by India of fissile material for non-civilian
purposes.
SEC. 104. WAIVERS FOR COOPERATION WITH INDIA.
(a) Waiver Authority.--If the President submits a determination
under section 105 to the appropriate congressional committees and makes
available to such committees the text of the agreement described in
paragraph (3) of such section, the President may--
(1) subject to subsection (b), 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 the application of any sanction with respect to
India under--
(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) Joint Resolution of Approval Requirement.--An agreement for
cooperation exempted by the President pursuant to subsection (a)(1)
shall be subject to the second proviso in subsection d. of section 123
of the Atomic Energy Act of 1954 (42 U.S.C. 2153(d)) applicable to
agreements exempted by the President pursuant to subsection (a) of such
section.
SEC. 105. DETERMINATION REGARDING UNITED STATES-INDIA PEACEFUL ATOMIC
ENERGY COOPERATION.
The determination referred to in section 104 is a written
determination by the President, which shall be accompanied by a report
to the appropriate congressional committees, that--
(1) India has provided to the IAEA and the United States a
credible plan to separate its civil nuclear facilities,
materials, and programs from its military facilities,
materials, and programs;
(2) India has filed a complete declaration regarding its
civil nuclear facilities and materials with the IAEA;
(3) an agreement between India and the IAEA requiring the
application of safeguards in perpetuity in accordance with IAEA
standards, principles, and practices to civil nuclear
facilities, programs, and materials described in paragraph (2)
has entered into force;
(4) India and the IAEA are making substantial progress
toward implementing an Additional Protocol;
(5) India is working with the United States to conclude a
multilateral treaty on the cessation of the production of
fissile materials for use in nuclear weapons or other nuclear
explosive devices;
(6) India is supporting 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;
(7) India has secured nuclear and other sensitive materials
and technology through the application of comprehensive export
control legislation and regulations, including through
effective enforcement actions, and through harmonization of its
control lists with, and adherence to, the guidelines of the
Missile Technology Control Regime and the Nuclear Suppliers
Group;
(8) India is fully and actively participating in United
States and international efforts to dissuade, sanction, and
contain Iran for its nuclear program consistent with United
Nations Security Council resolutions; and
(9) the Nuclear Suppliers Group has decided to permit civil
nuclear commerce with India pursuant to a decision taken by the
Nuclear Suppliers Group that--
(A) was made by consensus; and
(B) does not permit nuclear commerce with any non-
nuclear weapon state other than India that does not
have IAEA safeguards on all nuclear materials and all
peaceful nuclear activities within the territory of
such state, under its jurisdiction, or carried out
under its control anywhere.
SEC. 106. PROHIBITION ON CERTAIN EXPORTS AND REEXPORTS.
(a) Prohibition.--
(1) Nuclear regulatory commission.--Except as provided in
subsection (b), the Nuclear Regulatory Commission may not
authorize pursuant to part 110 of title 10, Code of Federal
Regulations, licenses for the export or reexport to India of
any equipment, materials, or technology related to the
enrichment of uranium, the reprocessing of spent nuclear fuel,
or the production of heavy water.
(2) Secretary of energy.--Except as provided in subsection
(b), the Secretary of Energy may not authorize pursuant to part
810 of title 10, Code of Federal Regulations, licenses for the
export or reexport to India of any equipment, materials, or
technology to be used for the enrichment of uranium, the
reprocessing of spent nuclear fuel, or the production of heavy
water.
(b) Exceptions.--Exports or reexports otherwise prohibited under
subsection (a) may be approved if--
(1) the end user--
(A) is a multinational facility participating in an
IAEA-approved program to provide alternatives to
national fuel cycle capabilities; or
(B) is a facility participating in, and the export
or reexport is associated with, a bilateral or
multinational program to develop a proliferation-
resistant fuel cycle; and
(2) the President determines that the export or reexport
will not improve India's ability to produce nuclear weapons or
fissile material for military uses.
SEC. 107. END-USE MONITORING 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 and to ensure United States compliance with Article
I of the Nuclear Non-Proliferation Treaty.
(b) Measures.--The measures taken pursuant to subsection (a) shall
include the following:
(1) 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.
(2) 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--
(A) the identified recipients of the nuclear
technology are authorized to receive the nuclear
technology;
(B) 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
(C) 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.
(3) In the event the IAEA is unable to implement safeguards
as required by an agreement between the United States and India
arranged pursuant to section 123 of the Atomic Energy Act of
1954 (42 U.S.C. 2153), arrangements that conform with IAEA
safeguards standards, principles, and practices that provide
assurances equivalent to that intended to be secured by the
system they replace, including--
(A) review in a timely fashion of the design of any
equipment transferred pursuant to the agreement for
cooperation, or of any facility that is to use,
fabricate, process, or store any material so
transferred or any special nuclear material used in or
produced through the use of such material and
equipment;
(B) maintenance and disclosure of records and of
relevant reports for the purpose of assisting in
ensuring accountability for material transferred
pursuant to the agreement and any source or special
nuclear material used in or produced through the use of
any material and equipment so transferred; and
(C) access to places and data necessary to account
for the material referred to in subparagraph (B) and to
inspect any equipment or facility referred to in
subparagraph (A).
(c) Implementation.--The measures described in subsection (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.
SEC. 108. IMPLEMENTATION AND COMPLIANCE.
(a) 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--
(1) any material non-compliance on the part of the
Government of India with--
(A) the non-proliferation commitments undertaken in
the Joint Statement of July 18, 2005, between the
President of the United States and the Prime Minister
of India;
(B) the separation plan presented in the national
parliament of India on March 7, 2006, and in greater
detail on May 11, 2006;
(C) a safeguards agreement between the Government
of India and the IAEA;
(D) an Additional Protocol between the Government
of India and the IAEA;
(E) a peaceful nuclear cooperation agreement
between the Government of India and the United States
Government 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);
(F) the terms and conditions of any approved
licenses; and
(G) United States laws and regulations regarding
the export or reexport of nuclear material or dual-use
material, equipment, or technology;
(2) the construction of a nuclear facility in India after
the date of the enactment of this Act;
(3) significant changes in the production by India of
nuclear weapons or in the types or amounts of fissile material
produced; and
(4) changes in the purpose or operational status of any
unsafeguarded nuclear fuel cycle activities in India.
(b) Implementation and Compliance Report.--Not later than 180 days
after the date on which an agreement between the Government of India
and the United States Government 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--
(1) a description of any additional nuclear facilities and
nuclear materials that the Government of India has placed or
intends to place under IAEA safeguards;
(2) a comprehensive listing of--
(A) 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;
(B) 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 non-proliferation reasons on the
Nuclear Referral List of the Commerce Control List
maintained under part 774 of title 15, Code of Federal
Regulations;
(C) any other United States authorizations for the
export or reexport to India of nuclear materials and
equipment; and
(D) with respect to each such license or other form
of authorization described in subparagraphs (A), (B),
and (C)--
(i) the number or other identifying
information of each license or authorization;
(ii) the name or names of the authorized
end user or end users;
(iii) the name of the site, facility, or
location in India to which the export or
reexport was made;
(iv) the terms and conditions included on
such licenses and authorizations;
(v) any post-shipment verification
procedures that will be applied to such exports
or reexports; and
(vi) the term of validity of each such
license or authorization;
(3) any significant nuclear commerce between India and
other countries, including any such trade that--
(A) does not comply with applicable guidelines or
decisions of the Nuclear Suppliers Group; or
(B) would not meet the standards applied to exports
or reexports of such material, equipment, or technology
of United States origin;
(4) either--
(A) a certification that India is in full
compliance with the commitments and obligations
contained in the agreements and other documents
referenced in subparagraphs (A) through (F) of
subsection (a)(1); or
(B) if the President cannot make such
certification, an identification and assessment of all
compliance issues arising with regard to the adherence
by India to its commitments and obligations,
including--
(i) the steps 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 steps; and
(iii) an assessment of the implications of
any continued noncompliance, including whether
nuclear commerce with India, if not already
terminated under section 129 of the Atomic
Energy Act of 1954 (42 U.S.C. 2158), remains in
the national security interest of the United
States;
(5) a detailed description of--
(A) United States efforts to promote national or
regional progress by India and Pakistan in disclosing,
securing, capping, and reducing their fissile material
stockpiles, pending creation of a world-wide fissile
material cut-off regime, including the institution of a
Fissile Material Cut-off Treaty;
(B) the reactions of India and Pakistan to such
efforts; and
(C) assistance that the United States is providing,
or would be able to provide, to India and Pakistan to
promote the objectives in subparagraph (A), consistent
with its obligations under international law and
existing agreements;
(6) an estimate of--
(A) the amount of uranium mined in India during the
previous year;
(B) the amount of such uranium that has likely been
used or allocated for the production of nuclear
explosive devices; and
(C) the rate of production in India of--
(i) fissile material for nuclear explosive
devices; and
(ii) nuclear explosive devices;
(7) an analysis as to whether imported uranium has affected
the rate of production in India of nuclear explosive devices;
and
(8) a detailed description of efforts and progress made
toward the achievement of India's--
(A) full participation in the Proliferation
Security Initiative;
(B) formal commitment to the Statement of
Interdiction Principles;
(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 Controls List of the
Wassenaar Arrangement; and
(D) demonstration of satisfactory progress toward
implementing the decision described in subparagraph
(C).
(c) Submittal With Other Annual Reports.--
(1) Report on proliferation prevention.--Each annual report
submitted under subsection (b) 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)).
(2) Report on progress toward regional non-proliferation.--
The information required to be submitted under subsection
(b)(5) after the initial report may be submitted together with
the annual report on progress toward regional non-proliferation
required under section 620F(c) of the Foreign Assistance Act of
1961 (22 U.S.C. 2376(c)).
(d) Form.--Each report submitted under this section shall be
submitted in unclassified form but may contain a classified annex.
SEC. 109. UNITED STATES COMPLIANCE WITH ITS NUCLEAR NON-PROLIFERATION
TREATY OBLIGATIONS.
This title shall not be deemed to constitute authority for any
action in violation of any obligation of the United States under the
Nuclear Non-Proliferation Treaty.
SEC. 110. INOPERABILITY OF DETERMINATION AND WAIVERS.
A determination under section 105 and any waiver under section 104
shall cease to be effective if the President determines that India has
detonated a nuclear explosive device after the date of the enactment of
this Act.
SEC. 111. 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. 112. 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 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
108 of the United States-India Peaceful Atomic Energy
Cooperation Act as relates to verification or
compliance matters; and''.
SEC. 113. 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 ``atomic energy'' has the meaning given the
term in section 11 c. of the Atomic Energy Act of 1954 (42
U.S.C. 2014(c)).
(4) The term ``dual-use material, equipment, or
technology'' means those items controlled by the Department of
Commerce pursuant to section 309(c) of the Nuclear
Nonproliferation Act of 1978.
(5) 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)).
(6) The term ``nuclear materials and equipment'' has the
meaning given the term in section 4(5) of the Nuclear
Nonproliferation Act of 1978 (22 U.S.C. 3203(3)).
(7) 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).
(8) The terms ``nuclear weapon'' and ``nuclear explosive
device'' have the meaning given the term ``nuclear explosive
device'' in section 830(4) of the Nuclear Proliferation
Prevention Act of 1994 (22 U.S.C. 6305(4)).
(9) The terms ``reprocessing'' and ``reprocess'' refer to
the separation of nuclear materials from fission products in
spent nuclear fuel.
(10) 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)).
(11) 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)).
(12) 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.
SEC. 114. UNITED STATES POLICY REGARDING THE PROVISION OF NUCLEAR POWER
REACTOR FUEL RESERVE TO INDIA.
It is the policy of the United States that any nuclear power
reactor fuel reserve provided to the Government of India for use in
safeguarded civilian nuclear facilities should be commensurate with
reasonable reactor operating requirements.
SEC. 115. UNITED STATES-INDIA SCIENTIFIC COOPERATIVE THREAT REDUCTION
PROGRAM.
(a) Establishment.--The Secretary of Energy, acting through the
Administrator of the National Nuclear Security Administration, shall
establish a cooperative threat reduction program to pursue jointly with
scientists from the United States and India a program to further common
nonproliferation goals, including scientific research and development
efforts related to nuclear nonproliferation, 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.
TITLE II--UNITED STATES ADDITIONAL PROTOCOL IMPLEMENTATION
SEC. 201. SHORT TITLE.
This title may be cited as the ``United States Additional Protocol
Implementation Act''.
SEC. 202. FINDINGS.
Congress makes the following findings--
(1) The proliferation of nuclear weapons and other nuclear
explosive devices poses a grave threat to the national security
of the United States and its vital national interests.
(2) The Nuclear Non-Proliferation Treaty has proven
critical to limiting such proliferation.
(3) For the Nuclear Non-Proliferation Treaty to be
effective, each of the non-nuclear-weapon State Parties must
conclude a comprehensive safeguards agreement with the IAEA,
and such agreements must be honored and enforced.
(4) Recent events emphasize the urgency of strengthening
the effectiveness and improving the efficiency of the
safeguards system. This can best be accomplished by providing
IAEA inspectors with more information about, and broader access
to, nuclear activities within the territory of non-nuclear-
weapon State Parties.
(5) The proposed scope of such expanded information and
access has been negotiated by the member states of the IAEA in
the form of a Model Additional Protocol to its existing
safeguards agreements, and universal acceptance of Additional
Protocols by non-nuclear weapons states is essential to
enhancing the effectiveness of the Nuclear Non-Proliferation
Treaty.
(6) On June 12, 1998, the United States, as a nuclear-
weapon State Party, signed an Additional Protocol that is based
on the Model Additional Protocol, but which also contains
measures, consistent with its existing safeguards agreements
with its members, that protect the right of the United States
to exclude the application of IAEA safeguards to locations and
activities with direct national security significance or to
locations or information associated with such activities.
(7) Implementation of the Additional Protocol in the United
States in a manner consistent with United States obligations
under the Nuclear Non-Proliferation Treaty may encourage other
parties to the Nuclear Non-Proliferation Treaty, especially
non-nuclear-weapon State Parties, to conclude Additional
Protocols and thereby strengthen the Nuclear Non-Proliferation
Treaty safeguards system and help reduce the threat of nuclear
proliferation, which is of direct and substantial benefit to
the United States.
(8) Implementation of the Additional Protocol by the United
States is not required and is completely voluntary given its
status as a nuclear-weapon State Party, but the United States
has acceded to the Additional Protocol to demonstrate its
commitment to the nuclear non-proliferation regime and to make
United States civil nuclear activities available to the same
IAEA inspections as are applied in the case of non-nuclear-
weapon State Parties.
(9) In accordance with the national security exclusion
contained in Article 1.b of its Additional Protocol, the United
States will not allow any inspection activities, nor make any
declaration of any information with respect to, locations,
information, and activities of direct national security
significance to the United States.
(10) Implementation of the Additional Protocol will conform
to the principles set forth in the letter of April 30, 2002,
from the United States Permanent Representative to the
International Atomic Energy Agency and the Vienna Office of the
United Nations to the Director General of the International
Atomic Energy Agency.
SEC. 203. DEFINITIONS.
In this title:
(1) Additional protocol.--The term ``Additional Protocol'',
when used in the singular form, means the Protocol Additional
to the Agreement between the United States of America and the
International Atomic Energy Agency for the Application of
Safeguards in the United States of America, with Annexes,
signed at Vienna June 12, 1998 (T. Doc. 107-7).
(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, and
the Committee on Appropriations of the House of
Representatives.
(3) Complementary access.--The term ``complementary
access'' means the exercise of the IAEA's access rights as set
forth in Articles 4 to 6 of the Additional Protocol.
(4) Executive agency.--The term ``executive agency'' has
the meaning given such term in section 105 of title 5, United
States Code.
(5) Facility.--The term ``facility'' has the meaning set
forth in Article 18i. of the Additional Protocol.
(6) IAEA.--The term ``IAEA'' means the International Atomic
Energy Agency.
(7) Judge of the united states.--The term ``judge of the
United States'' means a United States district judge, or a
United States magistrate judge appointed under the authority of
chapter 43 of title 28, United States Code.
(8) Location.--The term ``location'' means any geographic
point or area declared or identified by the United States or
specified by the International Atomic Energy Agency.
(9) Nuclear non-proliferation treaty.--The term ``Nuclear
Non-Proliferation Treaty'' means the Treaty on the Non-
Proliferation of Nuclear Weapons, done at Washington, London,
and Moscow July 1, 1968, and entered into force March 5, 1970
(21 UST 483).
(10) Nuclear-weapon state party and non-nuclear-weapon
state party.--The terms ``nuclear-weapon State Party'' and
``non-nuclear-weapon State Party'' have the meanings given such
terms in the Nuclear Non-Proliferation Treaty.
(11) Person.--The term ``person'', except as otherwise
provided, means any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, any
State or any political subdivision thereof, or any political
entity within a State, any foreign government or nation or any
agency, instrumentality or political subdivision of any such
government or nation, or other entity located in the United
States.
(12) Site.--The term ``site'' has the meaning set forth in
Article 18b. of the Additional Protocol.
(13) United states.--The term ``United States'', when used
as a geographic reference, means the several States of the
United States, the District of Columbia, and the commonwealths,
territories, and possessions of the United States and includes
all places under the jurisdiction or control of the United
States, including--
(A) the territorial sea and the overlying airspace;
(B) any civil aircraft of the United States or
public aircraft, as such terms are defined in
paragraphs (17) and (41), respectively, of section
40102(a) of title 49, United States Code; and
(C) any vessel of the United States, as such term
is defined in section 3(b) of the Maritime Drug Law
Enforcement Act (46 U.S.C. App. 1903(b)).
(14) Wide-area environmental sampling.--The term ``wide-
area environmental sampling'' has the meaning set forth in
Article 18g. of the Additional Protocol.
SEC. 204. SEVERABILITY.
If any provision of this title, or the application of such
provision to any person or circumstance, is held invalid, the remainder
of this title, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall
not be affected thereby.
Subtitle A--General Provisions
SEC. 211. AUTHORITY.
(a) In General.--The President is authorized to implement and carry
out the provisions of this title and the Additional Protocol and shall
designate through Executive order which executive agency or agencies of
the United States, which may include but are not limited to the
Department of State, the Department of Defense, the Department of
Justice, the Department of Commerce, the Department of Energy, and the
Nuclear Regulatory Commission, shall issue or amend and enforce
regulations in order to implement this title and the provisions of the
Additional Protocol.
(b) Included Authority.--For any executive agency designated under
subsection (a) that does not currently possess the authority to conduct
site vulnerability assessments and related activities, the authority
provided in subsection (a) includes such authority.
(c) Exception.--The authority described in subsection (b) does not
supersede or otherwise modify any existing authority of any Federal
department or agency already having such authority.
Subtitle B--Complementary Access
SEC. 221. REQUIREMENT FOR AUTHORITY TO CONDUCT COMPLEMENTARY ACCESS.
(a) Prohibition.--No complementary access to any location in the
United States shall take place pursuant to the Additional Protocol
without the authorization of the United States Government in accordance
with the requirements of this title.
(b) Authority.--
(1) In general.--Complementary access to any location in
the United States subject to access under the Additional
Protocol is authorized in accordance with this title.
(2) United states representatives.--
(A) Restrictions.--In the event of complementary
access to a privately owned or operated location, no
employee of the Environmental Protection Agency or of
the Mine Safety and Health Administration or the
Occupational Safety and Health Administration of the
Department of Labor may participate in the access.
(B) Number.--The number of designated United States
representatives accompanying IAEA inspectors shall be
kept to the minimum necessary.
SEC. 222. PROCEDURES FOR COMPLEMENTARY ACCESS.
(a) In General.--Each instance of complementary access to a
location in the United States under the Additional Protocol shall be
conducted in accordance with this subtitle.
(b) Notice.--
(1) In general.--Complementary access referred to in
subsection (a) may occur only upon the issuance of an actual
written notice by the United States Government to the owner,
operator, occupant, or agent in charge of the location to be
subject to complementary access.
(2) Time of notification.--The notice under paragraph (1)
shall be submitted to such owner, operator, occupant, or agent
as soon as possible after the United States Government has
received notification that the IAEA seeks complementary access.
Notices may be posted prominently at the location if the United
States Government is unable to provide actual written notice to
such owner, operator, occupant, or agent.
(3) Content of notice.--
(A) In general.--The notice required by paragraph
(1) shall specify--
(i) the purpose for the complementary
access;
(ii) the basis for the selection of the
facility, site, or other location for the
complementary access sought;
(iii) the activities that will be carried
out during the complementary access;
(iv) the time and date that the
complementary access is expected to begin, and
the anticipated period covered by the
complementary access; and
(v) the names and titles of the inspectors.
(4) Separate notices required.--A separate notice shall be
provided each time that complementary access is sought by the
IAEA.
(c) Credentials.--The complementary access team of the IAEA and
representatives or designees of the United States Government shall
display appropriate identifying credentials to the owner, operator,
occupant, or agent in charge of the location before gaining entry in
connection with complementary access.
(d) Scope.--
(1) In general.--Except as provided in a warrant issued
under section 223, and subject to the United States
Government's rights under the Additional Protocol to limit
complementary access, complementary access to a location
pursuant to this title may extend to all activities
specifically permitted for such locations under Article 6 of
the Additional Protocol.
(2) Exception.--Unless required by the Additional Protocol,
no inspection under this title shall extend to--
(A) financial data (other than production data);
(B) sales and marketing data (other than shipment
data);
(C) pricing data;
(D) personnel data;
(E) patent data;
(F) data maintained for compliance with
environmental or occupational health and safety
regulations; or
(G) research data.
(e) Environment, Health, Safety, and Security.--In carrying out
their activities, members of the IAEA complementary access team and
representatives or designees of the United States Government shall
observe applicable environmental, health, safety, and security
regulations established at the location subject to complementary
access, including those for protection of controlled environments
within a facility and for personal safety.
SEC. 223. CONSENTS, WARRANTS, AND COMPLEMENTARY ACCESS.
(a) In General.--
(1) Procedure.--
(A) Consent.--Except as provided in paragraph (2),
an appropriate official of the United States Government
shall seek or have the consent of the owner, operator,
occupant, or agent in charge of a location prior to
entering that location in connection with complementary
access pursuant to sections 221 and 222. The owner,
operator, occupant, or agent in charge of the location
may withhold consent for any reason or no reason.
(B) Administrative search warrant.--In the absence
of consent, the United States Government may seek an
administrative search warrant from a judge of the
United States under subsection (b). Proceedings
regarding the issuance of an administrative search
warrant shall be conducted ex parte, unless otherwise
requested by the United States Government.
(2) Expedited access.--For purposes of obtaining access to
a location pursuant to Article 4b.(ii) of the Additional
Protocol in order to satisfy United States obligations under
the Additional Protocol when notice of two hours or less is
required, the United States Government may gain entry to such
location in connection with complementary access, to the extent
such access is consistent with the Fourth Amendment to the
United States Constitution, without obtaining either a warrant
or consent.
(b) Administrative Search Warrants for Complementary Access.--
(1) Obtaining administrative search warrants.--For
complementary access conducted in the United States pursuant to
the Additional Protocol, and for which the acquisition of a
warrant is required, the United States Government shall first
obtain an administrative search warrant from a judge of the
United States. The United States Government shall provide to
such judge all appropriate information regarding the basis for
the selection of the facility, site, or other location to which
complementary access is sought.
(2) Content of affidavits for administrative search
warrants.--A judge of the United States shall promptly issue an
administrative search warrant authorizing the requested
complementary access upon an affidavit submitted by the United
States Government--
(A) stating that the Additional Protocol is in
force;
(B) stating that the designated facility, site, or
other location is subject to complementary access under
the Additional Protocol;
(C) stating that the purpose of the complementary
access is consistent with Article 4 of the Additional
Protocol;
(D) stating that the requested complementary access
is in accordance with Article 4 of the Additional
Protocol;
(E) containing assurances that the scope of the
IAEA's complementary access, as well as what it may
collect, shall be limited to the access provided for in
Article 6 of the Additional Protocol;
(F) listing the items, documents, and areas to be
searched and seized;
(G) stating the earliest commencement and the
anticipated duration of the complementary access
period, as well as the expected times of day during
which such complementary access will take place; and
(H) stating that the location to which entry in
connection with complementary access is sought was
selected either--
(i) because there is probable cause, on the
basis of specific evidence, to believe that
information required to be reported regarding a
location pursuant to regulations promulgated
under this title is incorrect or incomplete,
and that the location to be accessed contains
evidence regarding that violation; or
(ii) pursuant to a reasonable general
administrative plan based upon specific neutral
criteria.
(3) Content of warrants.--A warrant issued under paragraph
(2) shall specify the same matters required of an affidavit
under that paragraph. In addition, each warrant shall contain
the identities of the representatives of the IAEA on the
complementary access team and the identities of the
representatives or designees of the United States Government
required to display identifying credentials under section
222(c).
SEC. 224. PROHIBITED ACTS RELATING TO COMPLEMENTARY ACCESS.
It shall be unlawful for any person willfully to fail or refuse to
permit, or to disrupt, delay, or otherwise impede, a complementary
access authorized by this subtitle or an entry in connection with such
access.
Subtitle C--Confidentiality of Information
SEC. 231. PROTECTION OF CONFIDENTIALITY OF INFORMATION.
Information reported to, or otherwise acquired by, the United
States Government under this title or under the Additional Protocol
shall be exempt from disclosure under sections 552 of title 5, United
States Code.
Subtitle D--Enforcement
SEC. 241. RECORDKEEPING VIOLATIONS.
It shall be unlawful for any person willfully to fail or refuse--
(1) to establish or maintain any record required by any
regulation prescribed under this title;
(2) to submit any report, notice, or other information to
the United States Government in accordance with any regulation
prescribed under this title; or
(3) to permit access to or copying of any record by the
United States Government in accordance with any regulation
prescribed under this title.
SEC. 242. PENALTIES.
(a) Civil.--
(1) Penalty amounts.--Any person that is determined, in
accordance with paragraph (2), to have violated section 224 or
section 241 shall be required by order to pay a civil penalty
in an amount not to exceed $25,000 for each violation. For the
purposes of this paragraph, each day during which a violation
of section 224 continues shall constitute a separate violation
of that section.
(2) Notice and hearing.--
(A) In general.--Before imposing a penalty against
a person under paragraph (1), the head of an executive
agency designated under section 211(a) shall provide
the person with notice of the order. If, within 15 days
after receiving the notice, the person requests a
hearing, the head of the designated executive agency
shall initiate a hearing on the violation.
(B) Conduct of hearing.--Any hearing so requested
shall be conducted before an administrative judge. The
hearing shall be conducted in accordance with the
requirements of section 554 of title 5, United States
Code. If no hearing is so requested, the order imposed
by the head of the designated agency shall constitute a
final agency action.
(C) Issuance of orders.--If the administrative
judge determines, upon the preponderance of the
evidence received, that a person named in the complaint
has violated section 224 or section 241, the
administrative judge shall state his findings of fact
and conclusions of law, and issue and serve on such
person an order described in paragraph (1).
(D) Factors for determination of penalty amounts.--
In determining the amount of any civil penalty, the
administrative judge or the head of the designated
agency shall take into account the nature,
circumstances, extent, and gravity of the violation or
violations and, with respect to the violator, the
ability to pay, effect on ability to continue to do
business, any history of such violations, the degree of
culpability, the existence of an internal compliance
program, and such other matters as justice may require.
(E) Content of notice.--For the purposes of this
paragraph, notice shall be in writing and shall be
verifiably served upon the person or persons subject to
an order described in paragraph (1). In addition, the
notice shall--
(i) set forth the time, date, and specific
nature of the alleged violation or violations;
and
(ii) specify the administrative and
judicial remedies available to the person or
persons subject to the order, including the
availability of a hearing and subsequent
appeal.
(3) Administrative appellate review.--The decision and
order of an administrative judge shall be the recommended
decision and order and shall be referred to the head of the
designated executive agency for final decision and order. If,
within 60 days, the head of the designated executive agency
does not modify or vacate the decision and order, it shall
become a final agency action under this subsection.
(4) Judicial review.--A person adversely affected by a
final order may, within 30 days after the date the final order
is issued, file a petition in the Court of Appeals for the
District of Columbia Circuit or in the Court of Appeals for the
district in which the violation occurred.
(5) Enforcement of final orders.--
(A) In general.--If a person fails to comply with a
final order issued against such person under this
subsection and--
(i) the person has not filed a petition for
judicial review of the order in accordance with
paragraph (4), or
(ii) a court in an action brought under
paragraph (4) has entered a final judgment in
favor of the designated executive agency,
the head of the designated executive agency shall
commence a civil action to seek compliance with the
final order in any appropriate district court of the
United States.
(B) No review.--In any such civil action, the
validity and appropriateness of the final order shall
not be subject to review.
(C) Interest.--Payment of penalties assessed in a
final order under this section shall include interest
at currently prevailing rates calculated from the date
of expiration of the 60-day period referred to in
paragraph (3) or the date of such final order, as the
case may be.
(b) Criminal.--Any person who violates section 224 or section 241
may, in addition to or in lieu of any civil penalty which may be
imposed under subsection (a) for such violation, be fined under title
18, United States Code, imprisoned for not more than five years, or
both.
SEC. 243. SPECIFIC ENFORCEMENT.
(a) Jurisdiction.--The district courts of the United States shall
have jurisdiction over civil actions brought by the head of an
executive agency designated under section 211(a)--
(1) to restrain any conduct in violation of section 224 or
section 241; or
(2) to compel the taking of any action required by or under
this title or the Additional Protocol.
(b) Civil Actions.--
(1) In general.--A civil action described in subsection (a)
may be brought--
(A) in the case of a civil action described in
paragraph (1) of such subsection, in the United States
district court for the judicial district in which any
act, omission, or transaction constituting a violation
of section 224 or section 241 occurred or in which the
defendant is found or transacts business; or
(B) in the case of a civil action described in
paragraph (2) of such subsection, in the United States
district court for the judicial district in which the
defendant is found or transacts business.
(2) Service of process.--In any such civil action, process
shall be served on a defendant wherever the defendant may
reside or may be found.
Subtitle E--Environmental Sampling
SEC. 251. NOTIFICATION TO CONGRESS OF IAEA BOARD APPROVAL OF WIDE-AREA
ENVIRONMENTAL SAMPLING.
(a) In General.--Not later than 30 days after the date on which the
Board of Governors of the IAEA approves wide-area environmental
sampling for use as a safeguards verification tool, the President shall
notify the appropriate congressional committees.
(b) Content.--The notification under subsection (a) shall contain--
(1) a description of the specific methods and sampling
techniques approved by the Board of Governors that are to be
employed for purposes of wide-area sampling;
(2) a statement as to whether or not such sampling may be
conducted in the United States under the Additional Protocol;
and
(3) an assessment of the ability of the approved methods
and sampling techniques to detect, identify, and determine the
conduct, type, and nature of nuclear activities.
SEC. 252. APPLICATION OF NATIONAL SECURITY EXCLUSION TO WIDE-AREA
ENVIRONMENTAL SAMPLING.
In accordance with Article 1(b) of the Additional Protocol, the
United States shall not permit any wide-area environmental sampling
proposed by the IAEA to be conducted at a specified location in the
United States under Article 9 of the Additional Protocol unless the
President has determined and reported to the appropriate congressional
committees with respect to that proposed use of environmental sampling
that--
(1) the proposed use of wide-area environmental sampling is
necessary to increase the capability of the IAEA to detect
undeclared nuclear activities in the territory of a non-
nuclear-weapon State Party;
(2) the proposed use of wide-area environmental sampling
will not result in access by the IAEA to locations, activities,
or information of direct national security significance; and
(3) the United States--
(A) has been provided sufficient opportunity for
consultation with the IAEA if the IAEA has requested
complementary access involving wide-area environmental
sampling; or
(B) has requested under Article 8 of the Additional
Protocol that the IAEA engage in complementary access
in the United States that involves the use of wide-area
environmental sampling.
SEC. 253. APPLICATION OF NATIONAL SECURITY EXCLUSION TO LOCATION-
SPECIFIC ENVIRONMENTAL SAMPLING.
In accordance with Article 1(b) of the Additional Protocol, the
United States shall not permit any location-specific environmental
sampling in the United States under Article 5 of the Additional
Protocol unless the President has determined and reported to the
appropriate congressional committees with respect to that proposed use
of environmental sampling that--
(1) the proposed use of location-specific environmental
sampling is necessary to increase the capability of the IAEA to
detect undeclared nuclear activities in a non-nuclear weapons
state;
(2) the proposed use of location-specific environmental
sampling will not result in access by the IAEA to locations,
activities, or information of direct national security
significance; and
(3) with respect to the proposed use of environmental
sampling, the United States--
(A) has been provided sufficient opportunity for
consultation with the IAEA if the IAEA has requested
complementary access involving location-specific
environmental sampling; or
(B) has requested under Article 8 of the Additional
Protocol that the IAEA engage in complementary access
in the United States that involves the use of location-
specific environmental sampling.
SEC. 254. RULE OF CONSTRUCTION.
As used in this subtitle, the term ``necessary to increase the
capability of the IAEA to detect undeclared nuclear activities in the
territory of a non-nuclear-weapon State Party'' shall not be construed
to encompass proposed uses of environmental sampling that might assist
the IAEA in detecting undeclared nuclear activities in the territory of
a non-nuclear-weapon State Party by--
(1) setting a good example of cooperation in the conduct of
such sampling; or
(2) facilitating the formation of a political consensus or
political support for such sampling in the territory of a non-
nuclear-weapon State Party.
Subtitle F--Protection of National Security Information and Activities
SEC. 261. PROTECTION OF CERTAIN INFORMATION.
(a) Locations and Facilities of Direct National Security
Significance.--No current or former Department of Defense or Department
of Energy location, site, or facility of direct national security
significance shall be declared or be subject to IAEA inspection under
the Additional Protocol.
(b) Information of Direct National Security Significance.--No
information of direct national security significance regarding any
location, site, or facility associated with activities of the
Department of Defense or the Department of Energy shall be provided
under the Additional Protocol.
(c) Restricted Data.--Nothing in this title shall be construed to
permit the communication or disclosure to the IAEA or IAEA employees of
restricted data controlled by the provisions of the Atomic Energy Act
of 1954 (42 U.S.C. 2011 et seq.), including in particular ``Restricted
Data'' as defined under paragraph (1) of section 11 y. of such Act (42
U.S.C. 2014(y)).
(d) Classified Information.--Nothing in this Act shall be construed
to permit the communication or disclosure to the IAEA or IAEA employees
of national security information and other classified information.
SEC. 262. IAEA INSPECTIONS AND VISITS.
(a) Certain Individuals Prohibited From Obtaining Access.--No
national of a country designated by the Secretary of State under
section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) as
a government supporting acts of international terrorism shall be
permitted access to the United States to carry out an inspection
activity under the Additional Protocol or a related safeguards
agreement.
(b) Presence of United States Government Personnel.--IAEA
inspectors shall be accompanied at all times by United States
Government personnel when inspecting sites, locations, facilities, or
activities in the United States under the Additional Protocol.
(c) Vulnerability and Related Assessments.--The President shall
conduct vulnerability, counterintelligence, and related assessments not
less than every 5 years to ensure that information of direct national
security significance remains protected at all sites, locations,
facilities, and activities in the United States that are subject to
IAEA inspection under the Additional Protocol.
Subtitle G--Reports
SEC. 271. REPORT ON INITIAL UNITED STATES DECLARATION.
Not later than 60 days before submitting the initial United States
declaration to the IAEA under the Additional Protocol, the President
shall submit to Congress a list of the sites, locations, facilities,
and activities in the United States that the President intends to
declare to the IAEA.
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.
SEC. 273. CERTIFICATION REGARDING VULNERABILITY AND RELATED
ASSESSMENTS.
Concurrently with the submission to Congress of the initial
declaration list under section 271 and each list update under section
272, the President shall submit to Congress a report certifying 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 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.
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.
Attest:
Secretary.
109th CONGRESS
2d Session
H. R. 5682
_______________________________________________________________________
AMENDMENT