[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5682 Enrolled Bill (ENR)]
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--
(A) the country has demonstrated responsible behavior with
respect to the nonproliferation of technology related to
nuclear weapons and the means to deliver them;
(B) the country has a functioning and uninterrupted
democratic system of government, has a foreign policy that is
congruent to that of the United States, and is working with the
United States on key foreign policy initiatives related to
nonproliferation;
(C) such cooperation induces the country to promulgate and
implement substantially improved protections against the
proliferation of technology related to nuclear weapons and the
means to deliver them, and to refrain from actions that would
further the development of its nuclear weapons program; and
(D) such cooperation will induce the country to give
greater political and material support to the achievement of
United States global and regional nonproliferation objectives,
especially with respect to dissuading, isolating, and, if
necessary, sanctioning and containing states that sponsor
terrorism and terrorist groups that are seeking to acquire a
nuclear weapons capability or other weapons of mass destruction
capability and the means to deliver such weapons;
(7) the United States should continue its policy of engagement,
collaboration, and exchanges with and between India and Pakistan;
(8) strong bilateral relations with India are in the national
interest of the United States;
(9) the United States and India share common democratic values
and the potential for increasing and sustained economic engagement;
(10) commerce in civil nuclear energy with India by the United
States and other countries has the potential to benefit the people
of all countries;
(11) such commerce also represents a significant change in
United States policy regarding commerce with countries that are not
States Party to the NPT, which remains the foundation of the
international nonproliferation regime;
(12) any commerce in civil nuclear energy with India by the
United States and other countries must be achieved in a manner that
minimizes the risk of nuclear proliferation or regional arms races
and maximizes India's adherence to international nonproliferation
regimes, including, in particular, the guidelines of the Nuclear
Suppliers Group (NSG); and
(13) the United States should not seek to facilitate or
encourage the continuation of nuclear exports to India by any other
party if such exports are terminated under United States law.
SEC. 103. STATEMENTS OF POLICY.
(a) In General.--The following shall be the policies of the United
States:
(1) Oppose the development of a capability to produce nuclear
weapons by any non-nuclear weapon state, within or outside of the
NPT.
(2) Encourage States Party to the NPT to interpret the right to
``develop research, production and use of nuclear energy for
peaceful purposes'', as set forth in Article IV of the NPT, as
being a right that applies only to the extent that it is consistent
with the object and purpose of the NPT to prevent the spread of
nuclear weapons and nuclear weapons capabilities, including by
refraining from all nuclear cooperation with any State Party that
the International Atomic Energy Agency (IAEA) determines is not in
full compliance with its NPT obligations, including its safeguards
obligations.
(3) Act in a manner fully consistent with the Guidelines for
Nuclear Transfers and the Guidelines for Transfers of Nuclear-
Related Dual-Use Equipment, Materials, Software and Related
Technology developed by the NSG, and decisions related to 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
(E) ratification of or accession to the Convention on
Supplementary Compensation for Nuclear Damage, done at Vienna
on September 12, 1997.
(4) Secure India's full and active participation in United
States efforts to dissuade, isolate, and, if necessary, sanction
and contain Iran for its efforts to acquire weapons of mass
destruction, including a nuclear weapons capability and the
capability to enrich uranium or reprocess nuclear fuel, and the
means to deliver weapons of mass destruction.
(5) Seek to halt the increase of nuclear weapon arsenals in
South Asia and to promote their reduction and eventual elimination.
(6) Ensure that spent fuel generated in India's civilian
nuclear power reactors is not transferred to the United States
except pursuant to the Congressional review procedures required
under section 131 f. of the Atomic Energy Act of 1954 (42 U.S.C.
2160 (f)).
(7) Pending implementation of the multilateral moratorium
described in paragraph (1) or the treaty described in paragraph
(2), encourage India not to increase its production of fissile
material at unsafeguarded nuclear facilities.
(8) Ensure that any safeguards agreement or Additional Protocol
to which India is a party with the IAEA can reliably safeguard any
export or reexport to India of any nuclear materials and equipment.
(9) Ensure that the text and implementation of any agreement
for cooperation with India arranged pursuant to section 123 of the
Atomic Energy Act of 1954 (42 U.S.C. 2153) meet the requirements
set forth in subsections a.(1) and a.(3) through a.(9) of such
section.
(10) Any nuclear power reactor fuel reserve provided to the
Government of India for use in safeguarded civilian nuclear
facilities should be commensurate with reasonable reactor operating
requirements.
SEC. 104. WAIVER AUTHORITY AND CONGRESSIONAL APPROVAL.
(a) In General.--If the President makes the determination described
in subsection (b), the President may--
(1) exempt a proposed agreement for cooperation with India
arranged pursuant to section 123 of the Atomic Energy Act of 1954
(42 U.S.C. 2153) from the requirement of subsection a.(2) of such
section;
(2) waive the application of section 128 of the Atomic Energy
Act of 1954 (42 U.S.C. 2157) with respect to exports to India; and
(3) waive with respect to India the application of--
(A) section 129 a.(1)(D) of the Atomic Energy Act of 1954
(42 U.S.C. 2158(a)(1)(D)); and
(B) section 129 of such Act (42 U.S.C. 2158) regarding any
actions that occurred before July 18, 2005.
(b) Determination by the President.--The determination referred to
in subsection (a) is a determination by the President that the
following actions have occurred:
(1) India has provided the United States and the IAEA with a
credible plan to separate civil and military nuclear facilities,
materials, and programs, and has filed a declaration regarding its
civil facilities and materials with the IAEA.
(2) India and the IAEA have concluded all legal steps required
prior to signature by the parties of an agreement requiring the
application of IAEA safeguards in perpetuity in accordance with
IAEA standards, principles, and practices (including IAEA Board of
Governors Document GOV/1621 (1973)) to India's civil nuclear
facilities, materials, and programs as declared in the plan
described in paragraph (1), including materials used in or produced
through the use of India's civil nuclear facilities.
(3) India and the IAEA are making substantial progress toward
concluding an Additional Protocol consistent with IAEA principles,
practices, and policies that would apply to India's civil nuclear
program.
(4) India is working actively with the United States for the
early conclusion of a multilateral treaty on the cessation of the
production of fissile materials for use in nuclear weapons or other
nuclear explosive devices.
(5) India is working with and supporting United States and
international efforts to prevent the spread of enrichment and
reprocessing technology to any state that does not already possess
full-scale, functioning enrichment or reprocessing plants.
(6) India is taking the necessary steps to secure nuclear and
other sensitive materials and technology, including through--
(A) the enactment and effective enforcement of
comprehensive export control legislation and regulations;
(B) harmonization of its export control laws, regulations,
policies, and practices with the guidelines and practices of
the Missile Technology Control Regime (MTCR) and the NSG; and
(C) adherence to the MTCR and the NSG in accordance with
the procedures of those regimes for unilateral adherence.
(7) The NSG has decided by consensus to permit supply to India
of nuclear items covered by the guidelines of the NSG.
(c) Submission to Congress.--
(1) In general.--The President shall submit to the appropriate
congressional committees the determination made pursuant to
subsection (b), together with a report detailing the basis for the
determination.
(2) Information to be included.--To the fullest extent
available to the United States, the report referred to in paragraph
(1) shall include the following information:
(A) A summary of the plan provided by India to the United
States and the IAEA to separate India's civil and military
nuclear facilities, materials, and programs, and the
declaration made by India to the IAEA identifying India's civil
facilities to be placed under IAEA safeguards, including an
analysis of the credibility of such plan and declaration,
together with copies of the plan and declaration.
(B) A summary of the agreement that has been entered into
between India and the IAEA requiring the application of
safeguards in accordance with IAEA practices to India's civil
nuclear facilities as declared in the plan described in
subparagraph (A), together with a copy of the agreement, and a
description of the progress toward its full implementation.
(C) A summary of the progress made toward conclusion and
implementation of an Additional Protocol between India and the
IAEA, including a description of the scope of such Additional
Protocol.
(D) A description of the steps that India is taking to work
with the United States for the conclusion of a multilateral
treaty banning the production of fissile material for nuclear
weapons, including a description of the steps that the United
States has taken and will take to encourage India to identify
and declare a date by which India would be willing to stop
production of fissile material for nuclear weapons unilaterally
or pursuant to a multilateral moratorium or treaty.
(E) A description of the steps India is taking to prevent
the spread of nuclear-related technology, including enrichment
and reprocessing technology or materials that can be used to
acquire a nuclear weapons capability, as well as the support
that India is providing to the United States to further United
States objectives to restrict the spread of such technology.
(F) A description of the steps that India is taking to
secure materials and technology applicable for the development,
acquisition, or manufacture of weapons of mass destruction and
the means to deliver such weapons through the application of
comprehensive export control legislation and regulations, and
through harmonization with and adherence to MTCR, NSG,
Australia Group, and Wassenaar Arrangement guidelines,
compliance with United Nations Security Council Resolution
1540, and participation in the Proliferation Security
Initiative.
(G) A description and assessment of the specific measures
that India has taken to fully and actively participate in
United States and international efforts to dissuade, isolate,
and, if necessary, sanction and contain Iran for its efforts to
acquire weapons of mass destruction, including a nuclear
weapons capability and the capability to enrich uranium or
reprocess nuclear fuel and the means to deliver weapons of mass
destruction.
(H) A description of the decision of the NSG relating to
nuclear cooperation with India, including whether nuclear
cooperation by the United States under an agreement for
cooperation arranged pursuant to section 123 of the Atomic
Energy Act of 1954 (42 U.S.C. 2153) is consistent with the
decision, practices, and policies of the NSG.
(I) A description of the scope of peaceful cooperation
envisioned by the United States and India that will be
implemented under the agreement for nuclear cooperation,
including whether such cooperation will include the provision
of enrichment and reprocessing technology.
(J) A description of the steps taken to ensure that
proposed United States civil nuclear cooperation with India
will not in any way assist India's nuclear weapons program.
(d) Restrictions on Nuclear Transfers.--
(1) In general.--Pursuant to the obligations of the United
States under Article I of the NPT, nothing in this title
constitutes authority to carry out any civil nuclear cooperation
between the United States and a country that is not a nuclear-
weapon State Party to the NPT that would in any way assist,
encourage, or induce that country to manufacture or otherwise
acquire nuclear weapons or nuclear explosive devices.
(2) NSG transfer guidelines.--Notwithstanding the entry into
force of an agreement for cooperation with India arranged pursuant
to section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153)
and pursuant to this title, no item subject to such agreement or
subject to the transfer guidelines of the NSG, or to NSG decisions
related thereto, may be transferred to India if such transfer would
be inconsistent with the transfer guidelines of the NSG in effect
on the date of the transfer.
(3) Termination of nuclear transfers to india.--
(A) In general.--Notwithstanding the entry into force of an
agreement for cooperation with India arranged pursuant to
section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153)
and pursuant to this title, and except as provided under
subparagraph (B), exports of nuclear and nuclear-related
material, equipment, or technology to India shall be terminated
if there is any materially significant transfer by an Indian
person of--
(i) nuclear or nuclear-related material, equipment, or
technology that is not consistent with NSG guidelines or
decisions, or
(ii) ballistic missiles or missile-related equipment or
technology that is not consistent with MTCR guidelines,
unless the President determines that cessation of such exports
would be seriously prejudicial to the achievement of United
States nonproliferation objectives or otherwise jeopardize the
common defense and security.
(B) Exception.--The President may choose not to terminate
exports of nuclear and nuclear-related material, equipment, and
technology to India under subparagraph (A) if--
(i) the transfer covered under such subparagraph was
made without the knowledge of the Government of India;
(ii) at the time of the transfer, either the Government
of India did not own, control, or direct the Indian person
that made the transfer or the Indian person that made the
transfer is a natural person who acted without the
knowledge of any entity described in subparagraph (B) or
(C) of section 110(5); and
(iii) the President certifies to the appropriate
congressional committees that the Government of India has
taken or is taking appropriate judicial or other
enforcement actions against the Indian person with respect
to such transfer.
(4) Exports, reexports, transfers, and retransfers to india
related to enrichment, reprocessing, and heavy water production.--
(A) In general.--
(i) Nuclear regulatory commission.--The Nuclear
Regulatory Commission may only issue licenses for the
export or reexport to India of any equipment, components,
or materials related to the enrichment of uranium, the
reprocessing of spent nuclear fuel, or the production of
heavy water if the requirements of subparagraph (B) are
met.
(ii) Secretary of energy.--The Secretary of Energy may
only issue authorizations for the transfer or retransfer to
India of any equipment, materials, or technology related to
the enrichment of uranium, the reprocessing of spent
nuclear fuel, or the production of heavy water (including
under the terms of a subsequent arrangement under section
131 of the Atomic Energy Act of 1954 (42 U.S.C. 2160)) if
the requirements of subparagraph (B) are met.
(B) Requirements for approvals.--Exports, reexports,
transfers, and retransfers referred to in subparagraph (A) may
only be approved if--
(i) the end user--
(I) is a multinational facility participating in an
IAEA-approved program to provide alternatives to
national fuel cycle capabilities; or
(II) is a facility participating in, and the
export, reexport, transfer, or retransfer is associated
with, a bilateral or multinational program to develop a
proliferation-resistant fuel cycle;
(ii) appropriate measures are in place at any facility
referred to in clause (i) to ensure that no sensitive
nuclear technology, as defined in section 4(5) of the
Nuclear Nonproliferation Act of 1978 (22 U.S.C. 3203(5)),
will be diverted to any person, site, facility, location,
or program not under IAEA safeguards; and
(iii) the President determines that the export,
reexport, transfer, or retransfer will not assist in the
manufacture or acquisition of nuclear explosive devices or
the production of fissile material for military purposes.
(5) Nuclear export accountability program.--
(A) In general.--The President shall ensure that all
appropriate measures are taken to maintain accountability with
respect to nuclear materials, equipment, and technology sold,
leased, exported, or reexported to India so as to ensure--
(i) full implementation of the protections required
under section 123 a.(1) of the Atomic Energy Act of 1954
(42 U.S.C. 2153 (a)(1)); and
(ii) United States compliance with Article I of the
NPT.
(B) Measures.--The measures taken pursuant to subparagraph
(A) shall include the following:
(i) Obtaining and implementing assurances and
conditions pursuant to the export licensing authorities of
the Nuclear Regulatory Commission and the Department of
Commerce and the authorizing authorities of the Department
of Energy, including, as appropriate, conditions regarding
end-use monitoring.
(ii) A detailed system of reporting and accounting for
technology transfers, including any retransfers in India,
authorized by the Department of Energy pursuant to section
57 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)).
Such system shall be capable of providing assurances that--
(I) the identified recipients of the nuclear
technology are authorized to receive the nuclear
technology;
(II) the nuclear technology identified for transfer
will be used only for peaceful safeguarded nuclear
activities and will not be used for any military or
nuclear explosive purpose; and
(III) the nuclear technology identified for
transfer will not be retransferred without the prior
consent of the United States, and facilities,
equipment, or materials derived through the use of
transferred technology will not be transferred without
the prior consent of the United States.
(iii) In the event the IAEA is unable to implement
safeguards as required by an agreement for cooperation
arranged pursuant to section 123 of the Atomic Energy Act
of 1954 (42 U.S.C. 2153), appropriate assurance that
arrangements will be put in place expeditiously that are
consistent with the requirements of section 123 a.(1) of
such Act (42 U.S.C. 2153(a)(1)) regarding the maintenance
of safeguards as set forth in the agreement regardless of
whether the agreement is terminated or suspended for any
reason.
(C) Implementation.--The measures described in subparagraph
(B) shall be implemented to provide reasonable assurances that
the recipient is complying with the relevant requirements,
terms, and conditions of any licenses issued by the United
States regarding such exports, including those relating to the
use, retransfer, safe handling, secure transit, and storage of
such exports.
(e) Joint Resolution of Approval Requirement.--Section 123 d. of
the Atomic Energy Act of 1954 (42 U.S.C. 2153(d)) is amended in the
second proviso by inserting after ``that subsection'' the following:
``, or an agreement exempted pursuant to section 104(a)(1) of the Henry
J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of
2006,''.
(f) Sunset.--The authority provided under subsection (a)(1) to
exempt an agreement shall terminate upon the enactment of a joint
resolution under section 123 d. of the Atomic Energy Act of 1954 (42
U.S.C. 2153(d)) approving such an agreement.
(g) Reporting to Congress.--
(1) Information on nuclear activities of india.--The President
shall keep the appropriate congressional committees fully and
currently informed of the facts and implications of any significant
nuclear activities of India, including--
(A) any material noncompliance on the part of the
Government of India with--
(i) the nonproliferation commitments undertaken in the
Joint Statement of July 18, 2005, between the President of
the United States and the Prime Minister of India;
(ii) the separation plan presented in the national
parliament of India on March 7, 2006, and in greater detail
on May 11, 2006;
(iii) a safeguards agreement between the Government of
India and the IAEA;
(iv) an Additional Protocol between the Government of
India and the IAEA;
(v) an agreement for cooperation between the Government
of India and the United States Government arranged pursuant
to section 123 of the Atomic Energy Act of 1954 (42 U.S.C.
2153) or any subsequent arrangement under section 131 of
such Act (42 U.S.C. 2160);
(vi) the terms and conditions of any approved licenses
regarding the export or reexport of nuclear material or
dual-use material, equipment, or technology; and
(vii) United States laws and regulations regarding such
licenses;
(B) the construction of a nuclear facility in India after
the date of the enactment of this title;
(C) significant changes in the production by India of
nuclear weapons or in the types or amounts of fissile material
produced; and
(D) changes in the purpose or operational status of any
unsafeguarded nuclear fuel cycle activities in India.
(2) Implementation and compliance report.--Not later than 180
days after the date on which an agreement for cooperation with
India arranged pursuant to section 123 of the Atomic Energy Act of
1954 (42 U.S.C. 2153) enters into force, and annually thereafter,
the President shall submit to the appropriate congressional
committees a report including--
(A) a description of any additional nuclear facilities and
nuclear materials that the Government of India has placed or
intends to place under IAEA safeguards;
(B) a comprehensive listing of--
(i) all licenses that have been approved by the Nuclear
Regulatory Commission and the Secretary of Energy for
exports and reexports to India under parts 110 and 810 of
title 10, Code of Federal Regulations;
(ii) any licenses approved by the Department of
Commerce for the export or reexport to India of
commodities, related technology, and software which are
controlled for nuclear nonproliferation reasons on the
Nuclear Referral List of the Commerce Control List
maintained under part 774 of title 15, Code of Federal
Regulation, or any successor regulation;
(iii) any other United States authorizations for the
export or reexport to India of nuclear materials and
equipment; and
(iv) with respect to each such license or other form of
authorization described in clauses (i), (ii), and (iii)--
(I) the number or other identifying information of
each license or authorization;
(II) the name or names of the authorized end user
or end users;
(III) the name of the site, facility, or location
in India to which the export or reexport was made;
(IV) the terms and conditions included on such
licenses and authorizations;
(V) any post-shipment verification procedures that
will be applied to such exports or reexports; and
(VI) the term of validity of each such license or
authorization;
(C) a description of any significant nuclear commerce
between India and other countries, including any such trade
that--
(i) is not consistent with applicable guidelines or
decisions of the NSG; or
(ii) would not meet the standards applied to exports or
reexports of such material, equipment, or technology of
United States origin;
(D) either--
(i) an assessment that India is in full compliance with
the commitments and obligations contained in the agreements
and other documents referenced in clauses (i) through (vi)
of paragraph (1)(A); or
(ii) an identification and analysis of all compliance
issues arising with regard to the adherence by India to its
commitments and obligations, including--
(I) the measures the United States Government has
taken to remedy or otherwise respond to such compliance
issues;
(II) the responses of the Government of India to
such measures;
(III) the measures the United States Government
plans to take to this end in the coming year; and
(IV) an assessment of the implications of any
continued noncompliance, including whether nuclear
commerce with India remains in the national security
interest of the United States;
(E)(i) an assessment of whether India is fully and actively
participating in United States and international efforts to
dissuade, isolate, and, if necessary, sanction and contain Iran
for its efforts to acquire weapons of mass destruction,
including a nuclear weapons capability (including the
capability to enrich uranium or reprocess nuclear fuel), and
the means to deliver weapons of mass destruction, including a
description of the specific measures that India has taken in
this regard; and
(ii) if India is not assessed to be fully and actively
participating in such efforts, a description of--
(I) the measures the United States Government has taken
to secure India's full and active participation in such
efforts;
(II) the responses of the Government of India to such
measures; and
(III) the measures the United States Government plans
to take in the coming year to secure India's full and
active participation;
(F) an analysis of whether United States civil nuclear
cooperation with India is in any way assisting India's nuclear
weapons program, including through--
(i) the use of any United States equipment, technology,
or nuclear material by India in an unsafeguarded nuclear
facility or nuclear-weapons related complex;
(ii) the replication and subsequent use of any United
States technology by India in an unsafeguarded nuclear
facility or unsafeguarded nuclear weapons-related complex,
or for any activity related to the research, development,
testing, or manufacture of nuclear explosive devices; and
(iii) the provision of nuclear fuel in such a manner as
to facilitate the increased production by India of highly
enriched uranium or plutonium in unsafeguarded nuclear
facilities;
(G) a detailed description of--
(i) United States efforts to promote national or
regional progress by India and Pakistan in disclosing,
securing, limiting, and reducing their fissile material
stockpiles, including stockpiles for military purposes,
pending creation of a worldwide fissile material cut-off
regime, including the institution of a Fissile Material
Cut-off Treaty;
(ii) the responses of India and Pakistan to such
efforts; and
(iii) assistance that the United States is providing,
or would be able to provide, to India and Pakistan to
promote the objectives in clause (i), consistent with its
obligations under international law and existing
agreements;
(H) an estimate of--
(i) the amount of uranium mined and milled in India
during the previous year;
(ii) the amount of such uranium that has likely been
used or allocated for the production of nuclear explosive
devices; and
(iii) the rate of production in India of--
(I) fissile material for nuclear explosive devices;
and
(II) nuclear explosive devices;
(I) an estimate of the amount of electricity India's
nuclear reactors produced for civil purposes during the
previous year and the proportion of such production that can be
attributed to India's declared civil reactors;
(J) an analysis as to whether imported uranium has affected
the rate of production in India of nuclear explosive devices;
(K) a detailed description of efforts and progress made
toward the achievement of India's--
(i) full participation in the Proliferation Security
Initiative;
(ii) formal commitment to the Statement of Interdiction
Principles of such Initiative;
(iii) public announcement of its decision to conform
its export control laws, regulations, and policies with the
Australia Group and with the Guidelines, Procedures,
Criteria, and Controls List of the Wassenaar Arrangement;
and
(iv) effective implementation of the decision described
in clause (iii); and
(L) the disposal during the previous year of spent nuclear
fuel from India's civilian nuclear program, and any plans or
activities relating to future disposal of such spent nuclear
fuel.
(3) Submittal with other annual reports.--
(A) Report on proliferation prevention.--Each annual report
submitted under paragraph (2) after the initial report may be
submitted together with the annual report on proliferation
prevention required under section 601(a) of the Nuclear Non-
Proliferation Act of 1978 (22 U.S.C. 3281(a)).
(B) Report on progress toward regional nonproliferation.--
The information required to be submitted under paragraph (2)(F)
after the initial report may be submitted together with the
annual report on progress toward regional nonproliferation
required under section 620F(c) of the Foreign Assistance Act of
1961 (22 U.S.C. 2376(c)).
(4) Form.--Each report submitted under this subsection shall be
submitted in unclassified form, but may contain a classified annex.
SEC. 105. UNITED STATES COMPLIANCE WITH ITS NUCLEAR NONPROLIFERATION
TREATY OBLIGATIONS.
Nothing in this title constitutes authority for any action in
violation of an obligation of the United States under the NPT.
SEC. 106. INOPERABILITY OF DETERMINATION AND WAIVERS.
A determination and any waiver under section 104 shall cease to be
effective if the President determines that India has detonated a
nuclear explosive device after the date of the enactment of this title.
SEC. 107. MTCR ADHERENT STATUS.
Congress finds that India is not an MTCR adherent for the purposes
of section 73 of the Arms Export Control Act (22 U.S.C. 2797b).
SEC. 108. TECHNICAL AMENDMENT.
Section 1112(c)(4) of the Arms Control and Nonproliferation Act of
1999 (title XI of the Admiral James W. Nance and Meg Donovan Foreign
Relations Authorization Act, Fiscal Years 2000 and 2001 (as enacted
into law by section 1000(a)(7) of Public Law 106-113 and contained in
appendix G of that Act; 113 Stat. 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 Atomic Energy
Cooperation Act of 2006 as relates to verification or
compliance matters; and''.
SEC. 109. UNITED STATES-INDIA SCIENTIFIC COOPERATIVE NUCLEAR
NONPROLIFERATION PROGRAM.
(a) Establishment.--The Secretary of Energy, acting through the
Administrator of the National Nuclear Security Administration, is
authorized to establish a cooperative nuclear nonproliferation program
to pursue jointly with scientists from the United States and India a
program to further common nuclear nonproliferation goals, including
scientific research and development efforts, with an emphasis on
nuclear safeguards (in this section referred to as ``the program'').
(b) Consultation.--The program shall be carried out in consultation
with the Secretary of State and the Secretary of Defense.
(c) National Academies Recommendations.--
(1) In general.--The Secretary of Energy shall enter into an
agreement with the National Academies to develop recommendations
for the implementation of the program.
(2) Recommendations.--The agreement entered into under
paragraph (1) shall provide for the preparation by qualified
individuals with relevant expertise and knowledge and the
communication to the Secretary of Energy each fiscal year of--
(A) recommendations for research and related programs
designed to overcome existing technological barriers to nuclear
nonproliferation; and
(B) an assessment of whether activities and programs funded
under this section are achieving the goals of the activities
and programs.
(3) Public availability.--The recommendations and assessments
prepared under this subsection shall be made publicly available.
(d) Consistency With Nuclear Non-Proliferation Treaty.--All United
States activities related to the program shall be consistent with
United States obligations under the Nuclear Non-Proliferation Treaty.
(e) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section
for each of fiscal years 2007 through 2011.
SEC. 110. DEFINITIONS.
In this title:
(1) The term ``Additional Protocol'' means a protocol
additional to a safeguards agreement with the IAEA, as negotiated
between a country and the IAEA based on a Model Additional Protocol
as set forth in IAEA information circular (INFCIRC) 540.
(2) The term ``appropriate congressional committees'' means the
Committee on Foreign Relations of the Senate and the Committee on
International Relations of the House of Representatives.
(3) The term ``dual-use material, equipment, or technology''
means material, equipment, or technology that may be used in
nuclear or nonnuclear applications.
(4) The term ``IAEA safeguards'' has the meaning given the term
in section 830(3) of the Nuclear Proliferation Prevention Act of
1994 (22 U.S.C. 6305(3)).
(5) The term ``Indian person'' means--
(A) a natural person that is a citizen of India or is
subject to the jurisdiction of the Government of India;
(B) a corporation, business association, partnership,
society, trust, or any other nongovernmental entity,
organization, or group, that is organized under the laws of
India or has its principal place of business in India; and
(C) any Indian governmental entity, including any
governmental entity operating as a business enterprise.
(6) The terms ``Missile Technology Control Regime'', ``MTCR'',
and ``MTCR adherent'' have the meanings given the terms in section
74 of the Arms Export Control Act (22 U.S.C. 2797c).
(7) The term ``nuclear materials and equipment'' means source
material, special nuclear material, production and utilization
facilities and any components thereof, and any other items or
materials that are determined to have significance for nuclear
explosive purposes pursuant to subsection 109 b. of the Atomic
Energy Act of 1954 (42 U.S.C. 2139(b)).
(8) The terms ``Nuclear Non-Proliferation Treaty'' and ``NPT''
mean the Treaty on the Non-Proliferation of Nuclear Weapons, done
at Washington, London, and Moscow July 1, 1968, and entered into
force March 5, 1970 (21 UST 483).
(9) The terms ``Nuclear Suppliers Group'' and ``NSG'' refer to
a group, which met initially in 1975 and has met at least annually
since 1992, of Participating Governments that have promulgated and
agreed to adhere to Guidelines for Nuclear Transfers (currently
IAEA INFCIRC/254/Rev.8/Part 1) and Guidelines for Transfers of
Nuclear-Related Dual-Use Equipment, Materials, Software, and
Related Technology (currently IAEA INFCIRC/254/Rev.7/Part 2).
(10) The terms ``nuclear weapon'' and ``nuclear explosive
device'' mean any device designed to produce an instantaneous
release of an amount of nuclear energy from special nuclear
material that is greater than the amount of energy that would be
released from the detonation of one 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)).
(16) The term ``unsafeguarded nuclear fuel-cycle activity''
means research on, or development, design, manufacture,
construction, operation, or maintenance of--
(A) any existing or future reactor, critical facility,
conversion plant, fabrication plant, reprocessing plant, plant
for the separation of isotopes of source or special fissionable
material, or separate storage installation with respect to
which there is no obligation to accept IAEA safeguards at the
relevant reactor, facility, plant, or installation that
contains source or special fissionable material; or
(B) any existing or future heavy water production plant
with respect to which there is no obligation to accept IAEA
safeguards on any nuclear material produced by or used in
connection with any heavy water produced therefrom.
TITLE II--UNITED STATES ADDITIONAL PROTOCOL IMPLEMENTATION
SEC. 201. SHORT TITLE.
This title may be cited as the ``United States Additional Protocol
Implementation Act''.
SEC. 202. FINDINGS.
Congress makes the following findings:
(1) The proliferation of nuclear weapons and other nuclear
explosive devices poses a grave threat to the national security of
the United States and its vital national interests.
(2) The Nuclear Non-Proliferation Treaty has proven critical to
limiting such proliferation.
(3) For the Nuclear Non-Proliferation Treaty to be effective,
each of the non-nuclear-weapon State Parties must conclude a
comprehensive safeguards agreement with the IAEA, and such
agreements must be honored and enforced.
(4) Recent events emphasize the urgency of strengthening the
effectiveness and improving the efficiency of the safeguards
system. This can best be accomplished by providing IAEA inspectors
with more information about, and broader access to, nuclear
activities within the territory of non-nuclear-weapon State
Parties.
(5) The proposed scope of such expanded information and access
has been negotiated by the member states of the IAEA in the form of
a Model Additional Protocol to its existing safeguards agreements,
and universal acceptance of Additional Protocols by non-nuclear
weapons states is essential to enhancing the effectiveness of the
Nuclear Non-Proliferation Treaty.
(6) On June 12, 1998, the United States, as a nuclear-weapon
State Party, signed an Additional Protocol that is based on the
Model Additional Protocol, but which also contains measures,
consistent with its existing safeguards agreements with its
members, that protect the right of the United States to exclude the
application of IAEA safeguards to locations and activities with
direct national security significance or to locations or
information associated with such activities.
(7) Implementation of the Additional Protocol in the United
States in a manner consistent with United States obligations under
the Nuclear Non-Proliferation Treaty may encourage other parties to
the Nuclear Non-Proliferation Treaty, especially non-nuclear-weapon
State Parties, to conclude Additional Protocols and thereby
strengthen the Nuclear Non-Proliferation Treaty safeguards system
and help reduce the threat of nuclear proliferation, which is of
direct and substantial benefit to the United States.
(8) Implementation of the Additional Protocol by the United
States is not required and is completely voluntary given its status
as a nuclear-weapon State Party, but the United States has acceded
to the Additional Protocol to demonstrate its commitment to the
nuclear nonproliferation regime and to make United States civil
nuclear activities available to the same IAEA inspections as are
applied in the case of non-nuclear-weapon State Parties.
(9) In accordance with the national security exclusion
contained in Article 1.b of its Additional Protocol, the United
States will not allow any inspection activities, nor make any
declaration of any information with respect to, locations,
information, and activities of direct national security
significance to the United States.
(10) Implementation of the Additional Protocol will conform to
the principles set forth in the letter of April 30, 2002, from the
United States Permanent Representative to the International Atomic
Energy Agency and the Vienna Office of the United Nations to the
Director General of the International Atomic Energy Agency.
SEC. 203. DEFINITIONS.
In this title:
(1) Additional protocol.--The term ``Additional Protocol'',
when used in the singular form, means the Protocol Additional to
the Agreement between the United States of America and the
International Atomic Energy Agency for the Application of
Safeguards in the United States of America, with Annexes, signed at
Vienna June 12, 1998 (T. Doc. 107-7).
(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 a United States
magistrate judge appointed under the authority of chapter 43 of
title 28, United States Code.
(8) Location.--The term ``location'' means any geographic point
or area declared or identified by the United States or specified by
the International Atomic Energy Agency.
(9) Nuclear non-proliferation treaty.--The term ``Nuclear Non-
Proliferation Treaty'' means the Treaty on the Non-Proliferation of
Nuclear Weapons, done at Washington, London, and Moscow July 1,
1968, and entered into force March 5, 1970 (21 UST 483).
(10) Nuclear-weapon state party and non-nuclear-weapon state
party.--The terms ``nuclear-weapon State Party'' and ``non-nuclear-
weapon State Party'' have the meanings given such terms in the
Nuclear Non-Proliferation Treaty.
(11) Person.--The term ``person'', except as otherwise
provided, means any individual, corporation, partnership, firm,
association, trust, estate, public or private institution, any
State or any political subdivision thereof, or any political entity
within a State, any foreign government or nation or any agency,
instrumentality, or political subdivision of any such government or
nation, or other entity located in the United States.
(12) Site.--The term ``site'' has the meaning set forth in
Article 18b. of the Additional Protocol.
(13) United states.--The term ``United States'', when used as a
geographic reference, means the several States of the United
States, the District of Columbia, and the commonwealths,
territories, and possessions of the United States and includes all
places under the jurisdiction or control of the United States,
including--
(A) the territorial sea and the overlying airspace;
(B) any civil aircraft of the United States or public
aircraft, as such terms are defined in paragraphs (17) and
(41), respectively, of section 40102(a) of title 49, United
States Code; and
(C) any vessel of the United States, as such term is
defined in section 3(b) of the Maritime Drug Law Enforcement
Act (46 U.S.C. App. 1903(b)).
(14) Wide-area environmental sampling.--The term ``wide-area
environmental sampling'' has the meaning set forth in Article 18g.
of the Additional Protocol.
SEC. 204. SEVERABILITY.
If any provision of this title, or the application of such
provision to any person or circumstance, is held invalid, the remainder
of this title, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall
not be affected thereby.
Subtitle A--General Provisions
SEC. 211. AUTHORITY.
(a) In General.--The President is authorized to implement and carry
out the provisions of this title and the Additional Protocol and shall
designate through Executive order which executive agency or agencies of
the United States, which may include but are not limited to the
Department of State, the Department of Defense, the Department of
Justice, the Department of Commerce, the Department of Energy, and the
Nuclear Regulatory Commission, shall issue or amend and enforce
regulations in order to implement this title and the provisions of the
Additional Protocol.
(b) Included Authority.--For any executive agency designated under
subsection (a) that does not currently possess the authority to conduct
site vulnerability assessments and related activities, the authority
provided in subsection (a) includes such authority.
(c) Exception.--The authority described in subsection (b) does not
supersede or otherwise modify any existing authority of any Federal
department or agency already having such authority.
Subtitle B--Complementary Access
SEC. 221. REQUIREMENT FOR AUTHORITY TO CONDUCT COMPLEMENTARY ACCESS.
(a) Prohibition.--No complementary access to any location in the
United States shall take place pursuant to the Additional Protocol
without the authorization of the United States Government in accordance
with the requirements of this title.
(b) Authority.--
(1) In general.--Complementary access to any location in the
United States subject to access under the Additional Protocol is
authorized in accordance with this title.
(2) United states representatives.--
(A) Restrictions.--In the event of complementary access to
a privately owned or operated location, no employee of the
Environmental Protection Agency or of the Mine Safety and
Health Administration or the Occupational Safety and Health
Administration of the Department of Labor may participate in
the access.
(B) Number.--The number of designated United States
representatives accompanying IAEA inspectors shall be kept to
the minimum necessary.
SEC. 222. PROCEDURES FOR COMPLEMENTARY ACCESS.
(a) In General.--Each instance of complementary access to a
location in the United States under the Additional Protocol shall be
conducted in accordance with this subtitle.
(b) Notice.--
(1) In general.--Complementary access referred to in subsection
(a) may occur only upon the issuance of an actual written notice by
the United States Government to the owner, operator, occupant, or
agent in charge of the location to be subject to complementary
access.
(2) Time of notification.--The notice under paragraph (1) shall
be submitted to such owner, operator, occupant, or agent as soon as
possible after the United States Government has received
notification that the IAEA seeks complementary access. Notices may
be posted prominently at the location if the United States
Government is unable to provide actual written notice to such
owner, operator, occupant, or agent.
(3) Content of notice.--
(A) In general.--The notice required by paragraph (1) shall
specify--
(i) the purpose for the complementary access;
(ii) the basis for the selection of the facility, site,
or other location for the complementary access sought;
(iii) the activities that will be carried out during
the complementary access;
(iv) the time and date that the complementary access is
expected to begin, and the anticipated period covered by
the complementary access; and
(v) the names and titles of the inspectors.
(4) Separate notices required.--A separate notice shall be
provided each time that complementary access is sought by the IAEA.
(c) Credentials.--The complementary access team of the IAEA and
representatives or designees of the United States Government shall
display appropriate identifying credentials to the owner, operator,
occupant, or agent in charge of the location before gaining entry in
connection with complementary access.
(d) Scope.--
(1) In general.--Except as provided in a warrant issued under
section 223, and subject to the rights of the United States
Government under the Additional Protocol to limit complementary
access, complementary access to a location pursuant to this title
may extend to all activities specifically permitted for such
locations under Article 6 of the Additional Protocol.
(2) Exception.--Unless required by the Additional Protocol, no
inspection under this title shall extend to--
(A) financial data (other than production data);
(B) sales and marketing data (other than shipment data);
(C) pricing data;
(D) personnel data;
(E) patent data;
(F) data maintained for compliance with environmental or
occupational health and safety regulations; or
(G) research data.
(e) Environment, Health, Safety, and Security.--In carrying out
their activities, members of the IAEA complementary access team and
representatives or designees of the United States Government shall
observe applicable environmental, health, safety, and security
regulations established at the location subject to complementary
access, including those for protection of controlled environments
within a facility and for personal safety.
SEC. 223. CONSENTS, WARRANTS, AND COMPLEMENTARY ACCESS.
(a) In General.--
(1) Procedure.--
(A) Consent.--Except as provided in paragraph (2), an
appropriate official of the United States Government shall seek
or have the consent of the owner, operator, occupant, or agent
in charge of a location prior to entering that location in
connection with complementary access pursuant to sections 221
and 222. The owner, operator, occupant, or agent in charge of
the location may withhold consent for any reason or no reason.
(B) Administrative search warrant.--In the absence of
consent, the United States Government may seek an
administrative search warrant from a judge of the United States
under subsection (b). Proceedings regarding the issuance of an
administrative search warrant shall be conducted ex parte,
unless otherwise requested by the United States Government.
(2) Expedited access.--For purposes of obtaining access to a
location pursuant to Article 4b.(ii) of the Additional Protocol in
order to satisfy United States obligations under the Additional
Protocol when notice of two hours or less is required, the United
States Government may gain entry to such location in connection
with complementary access, to the extent such access is consistent
with the Fourth Amendment to the United States Constitution,
without obtaining either a warrant or consent.
(b) Administrative Search Warrants for Complementary Access.--
(1) Obtaining administrative search warrants.--For
complementary access conducted in the United States pursuant to the
Additional Protocol, and for which the acquisition of a warrant is
required, the United States Government shall first obtain an
administrative search warrant from a judge of the United States.
The United States Government shall provide to such judge all
appropriate information regarding the basis for the selection of
the facility, site, or other location to which complementary access
is sought.
(2) Content of affidavits for administrative search warrants.--
A judge of the United States shall promptly issue an administrative
search warrant authorizing the requested complementary access upon
an affidavit submitted by the United States Government--
(A) stating that the Additional Protocol is in force;
(B) stating that the designated facility, site, or other
location is subject to complementary access under the
Additional Protocol;
(C) stating that the purpose of the complementary access is
consistent with Article 4 of the Additional Protocol;
(D) stating that the requested complementary access is in
accordance with Article 4 of the Additional Protocol;
(E) containing assurances that the scope of the IAEA's
complementary access, as well as what it may collect, shall be
limited to the access provided for in Article 6 of the
Additional Protocol;
(F) listing the items, documents, and areas to be searched
and seized;
(G) stating the earliest commencement and the anticipated
duration of the complementary access period, as well as the
expected times of day during which such complementary access
will take place; and
(H) stating that the location to which entry in connection
with complementary access is sought was selected either--
(i) because there is probable cause, on the basis of
specific evidence, to believe that information required to
be reported regarding a location pursuant to regulations
promulgated under this title is incorrect or incomplete,
and that the location to be accessed contains evidence
regarding that violation; or
(ii) pursuant to a reasonable general administrative
plan based upon specific neutral criteria.
(3) Content of warrants.--A warrant issued under paragraph (2)
shall specify the same matters required of an affidavit under that
paragraph. In addition, each warrant shall contain the identities
of the representatives of the IAEA on the complementary access team
and the identities of the representatives or designees of the
United States Government required to display identifying
credentials under section 222(c).
SEC. 224. PROHIBITED ACTS RELATING TO COMPLEMENTARY ACCESS.
It shall be unlawful for any person willfully to fail or refuse to
permit, or to disrupt, delay, or otherwise impede, a complementary
access authorized by this subtitle or an entry in connection with such
access.
Subtitle C--Confidentiality of Information
SEC. 231. PROTECTION OF CONFIDENTIALITY OF INFORMATION.
Information reported to, or otherwise acquired by, the United
States Government under this title or under the Additional Protocol
shall be exempt from disclosure under section 552 of title 5, United
States Code.
Subtitle D--Enforcement
SEC. 241. RECORDKEEPING VIOLATIONS.
It shall be unlawful for any person willfully to fail or refuse--
(1) to establish or maintain any record required by any
regulation prescribed under this title;
(2) to submit any report, notice, or other information to the
United States Government in accordance with any regulation
prescribed under this title; or
(3) to permit access to or copying of any record by the United
States Government in accordance with any regulation prescribed
under this title.
SEC. 242. PENALTIES.
(a) Civil.--
(1) Penalty amounts.--Any person that is determined, in
accordance with paragraph (2), to have violated section 224 or
section 241 shall be required by order to pay a civil penalty in an
amount not to exceed $25,000 for each violation. For the purposes
of this paragraph, each day during which a violation of section 224
continues shall constitute a separate violation of that section.
(2) Notice and hearing.--
(A) In general.--Before imposing a penalty against a person
under paragraph (1), the head of an executive agency designated
under section 211(a) shall provide the person with notice of
the order. If, within 15 days after receiving the notice, the
person requests a hearing, the head of the designated executive
agency shall initiate a hearing on the violation.
(B) Conduct of hearing.--Any hearing so requested shall be
conducted before an administrative judge. The hearing shall be
conducted in accordance with the requirements of section 554 of
title 5, United States Code. If no hearing is so requested, the
order imposed by the head of the designated agency shall
constitute a final agency action.
(C) Issuance of orders.--If the administrative judge
determines, upon the preponderance of the evidence received,
that a person named in the complaint has violated section 224
or section 241, the administrative judge shall state the
findings of fact and conclusions of law, and issue and serve on
such person an order described in paragraph (1).
(D) Factors for determination of penalty amounts.--In
determining the amount of any civil penalty, the administrative
judge or the head of the designated agency shall take into
account the nature, circumstances, extent, and gravity of the
violation or violations and, with respect to the violator, the
ability to pay, effect on ability to continue to do business,
any history of such violations, the degree of culpability, the
existence of an internal compliance program, and such other
matters as justice may require.
(E) Content of notice.--For the purposes of this paragraph,
notice shall be in writing and shall be verifiably served upon
the person or persons subject to an order described in
paragraph (1). In addition, the notice shall--
(i) set forth the time, date, and specific nature of
the alleged violation or violations; and
(ii) specify the administrative and judicial remedies
available to the person or persons subject to the order,
including the availability of a hearing and subsequent
appeal.
(3) Administrative appellate review.--The decision and order of
an administrative judge shall be the recommended decision and order
and shall be referred to the head of the designated executive
agency for final decision and order. If, within 60 days, the head
of the designated executive agency does not modify or vacate the
decision and order, it shall become a final agency action under
this subsection.
(4) Judicial review.--A person adversely affected by a final
order may, within 30 days after the date the final order is issued,
file a petition in the Court of Appeals for the District of
Columbia Circuit or in the Court of Appeals for the district in
which the violation occurred.
(5) Enforcement of final orders.--
(A) In general.--If a person fails to comply with a final
order issued against such person under this subsection and--
(i) the person has not filed a petition for judicial
review of the order in accordance with paragraph (4), or
(ii) a court in an action brought under paragraph (4)
has entered a final judgment in favor of the designated
executive agency,
the head of the designated executive agency shall commence a
civil action to seek compliance with the final order in any
appropriate district court of the United States.
(B) No review.--In any such civil action, the validity and
appropriateness of the final order shall not be subject to
review.
(C) Interest.--Payment of penalties assessed in a final
order under this section shall include interest at currently
prevailing rates calculated from the date of expiration of the
60-day period referred to in paragraph (3) or the date of such
final order, as the case may be.
(b) Criminal.--Any person who violates section 224 or section 241
may, in addition to or in lieu of any civil penalty which may be
imposed under subsection (a) for such violation, be fined under title
18, United States Code, imprisoned for not more than five years, or
both.
SEC. 243. SPECIFIC ENFORCEMENT.
(a) Jurisdiction.--The district courts of the United States shall
have jurisdiction over civil actions brought by the head of an
executive agency designated under section 211(a)--
(1) to restrain any conduct in violation of section 224 or
section 241; or
(2) to compel the taking of any action required by or under
this title or the Additional Protocol.
(b) Civil Actions.--
(1) In general.--A civil action described in subsection (a) may
be brought--
(A) in the case of a civil action described in paragraph
(1) of such subsection, in the United States district court for
the judicial district in which any act, omission, or
transaction constituting a violation of section 224 or section
241 occurred or in which the defendant is found or transacts
business; or
(B) in the case of a civil action described in paragraph
(2) of such subsection, in the United States district court for
the judicial district in which the defendant is found or
transacts business.
(2) Service of process.--In any such civil action, process
shall be served on a defendant wherever the defendant may reside or
may be found.
Subtitle E--Environmental Sampling
SEC. 251. NOTIFICATION TO CONGRESS OF IAEA BOARD APPROVAL OF WIDE-AREA
ENVIRONMENTAL SAMPLING.
(a) In General.--Not later than 30 days after the date on which the
Board of Governors of the IAEA approves wide-area environmental
sampling for use as a safeguards verification tool, the President shall
notify the appropriate congressional committees.
(b) Content.--The notification under subsection (a) shall contain--
(1) a description of the specific methods and sampling
techniques approved by the Board of Governors that are to be
employed for purposes of wide-area sampling;
(2) a statement as to whether or not such sampling may be
conducted in the United States under the Additional Protocol; and
(3) an assessment of the ability of the approved methods and
sampling techniques to detect, identify, and determine the conduct,
type, and nature of nuclear activities.
SEC. 252. APPLICATION OF NATIONAL SECURITY EXCLUSION TO WIDE-AREA
ENVIRONMENTAL SAMPLING.
In accordance with Article 1(b) of the Additional Protocol, the
United States shall not permit any wide-area environmental sampling
proposed by the IAEA to be conducted at a specified location in the
United States under Article 9 of the Additional Protocol unless the
President has determined and reported to the appropriate congressional
committees with respect to that proposed use of environmental sampling
that--
(1) the proposed use of wide-area environmental sampling is
necessary to increase the capability of the IAEA to detect
undeclared nuclear activities in the territory of a non-nuclear-
weapon State Party;
(2) the proposed use of wide-area environmental sampling will
not result in access by the IAEA to locations, activities, or
information of direct national security significance; and
(3) the United States--
(A) has been provided sufficient opportunity for
consultation with the IAEA if the IAEA has requested
complementary access involving wide-area environmental
sampling; or
(B) has requested under Article 8 of the Additional
Protocol that the IAEA engage in complementary access in the
United States that involves the use of wide-area environmental
sampling.
SEC. 253. APPLICATION OF NATIONAL SECURITY EXCLUSION TO LOCATION-
SPECIFIC ENVIRONMENTAL SAMPLING.
In accordance with Article 1(b) of the Additional Protocol, the
United States shall not permit any location-specific environmental
sampling in the United States under Article 5 of the Additional
Protocol unless the President has determined and reported to the
appropriate congressional committees with respect to that proposed use
of environmental sampling that--
(1) the proposed use of location-specific environmental
sampling is necessary to increase the capability of the IAEA to
detect undeclared nuclear activities in the territory of a non-
nuclear-weapon State Party;
(2) the proposed use of location-specific environmental
sampling will not result in access by the IAEA to locations,
activities, or information of direct national security
significance; and
(3) with respect to the proposed use of environmental sampling,
the United States--
(A) has been provided sufficient opportunity for
consultation with the IAEA if the IAEA has requested
complementary access involving location-specific environmental
sampling; or
(B) has requested under Article 8 of the Additional
Protocol that the IAEA engage in complementary access in the
United States that involves the use of location-specific
environmental sampling.
SEC. 254. RULE OF CONSTRUCTION.
As used in this subtitle, the term ``necessary to increase the
capability of the IAEA to detect undeclared nuclear activities in the
territory of a non-nuclear-weapon State Party'' shall not be construed
to encompass proposed uses of environmental sampling that might assist
the IAEA in detecting undeclared nuclear activities in the territory of
a non-nuclear-weapon State Party by--
(1) setting a good example of cooperation in the conduct of
such sampling; or
(2) facilitating the formation of a political consensus or
political support for such sampling in the territory of a non-
nuclear-weapon State Party.
Subtitle F--Protection of National Security Information and Activities
SEC. 261. PROTECTION OF CERTAIN INFORMATION.
(a) Locations and Facilities of Direct National Security
Significance.--No current or former Department of Defense or Department
of Energy location, site, or facility of direct national security
significance shall be declared or be subject to IAEA inspection under
the Additional Protocol.
(b) Information of Direct National Security Significance.--No
information of direct national security significance regarding any
location, site, or facility associated with activities of the
Department of Defense or the Department of Energy shall be provided
under the Additional Protocol.
(c) Restricted Data.--Nothing in this title shall be construed to
permit the communication or disclosure to the IAEA or IAEA employees of
restricted data controlled by the provisions of the Atomic Energy Act
of 1954 (42 U.S.C. 2011 et seq.), including in particular ``Restricted
Data'' as defined under paragraph (1) of section 11 y. of such Act (42
U.S.C. 2014(y)).
(d) Classified Information.--Nothing in this Act shall be construed
to permit the communication or disclosure to the IAEA or IAEA employees
of national security information and other classified information.
SEC. 262. IAEA INSPECTIONS AND VISITS.
(a) Certain Individuals Prohibited From Obtaining Access.--No
national of a country designated by the Secretary of State under
section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) as
a government supporting acts of international terrorism shall be
permitted access to the United States to carry out an inspection
activity under the Additional Protocol or a related safeguards
agreement.
(b) Presence of United States Government Personnel.--IAEA
inspectors shall be accompanied at all times by United States
Government personnel when inspecting sites, locations, facilities, or
activities in the United States under the Additional Protocol.
(c) Vulnerability and Related Assessments.--The President shall
conduct vulnerability, counterintelligence, and related assessments not
less than every 5 years to ensure that information of direct national
security significance remains protected at all sites, locations,
facilities, and activities in the United States that are subject to
IAEA inspection under the Additional Protocol.
Subtitle G--Reports
SEC. 271. REPORT ON INITIAL UNITED STATES DECLARATION.
Not later than 60 days before submitting the initial United States
declaration to the IAEA under the Additional Protocol, the President
shall submit to Congress a list of the sites, locations, facilities,
and activities in the United States that the President intends to
declare to the IAEA, and a report thereon.
SEC. 272. REPORT ON REVISIONS TO INITIAL UNITED STATES DECLARATION.
Not later than 60 days before submitting to the IAEA any revisions
to the United States declaration submitted under the Additional
Protocol, the President shall submit to Congress a list of any sites,
locations, facilities, or activities in the United States that the
President intends to add to or remove from the declaration, and a
report thereon.
SEC. 273. CONTENT OF REPORTS ON UNITED STATES DECLARATIONS.
The reports required under section 271 and section 272 shall
present the reasons for each site, location, facility, and activity
being declared or being removed from the declaration list and shall
certify that--
(1) each site, location, facility, and activity included in the
list has been examined by each agency with national security
equities with respect to such site, location, facility, or
activity; and
(2) appropriate measures have been taken to ensure that
information of direct national security significance will not be
compromised at any such site, location, facility, or activity in
connection with an IAEA inspection.
SEC. 274. REPORT ON EFFORTS TO PROMOTE THE IMPLEMENTATION OF ADDITIONAL
PROTOCOLS.
Not later than 180 days after the entry into force of the
Additional Protocol, the President shall submit to the appropriate
congressional committees a report on--
(1) measures that have been or should be taken to achieve the
adoption of additional protocols to existing safeguards agreements
signed by non-nuclear-weapon State Parties; and
(2) assistance that has been or should be provided by the
United States to the IAEA in order to promote the effective
implementation of additional protocols to existing safeguards
agreements signed by non-nuclear-weapon State Parties and the
verification of the compliance of such parties with IAEA
obligations, with a plan for providing any needed additional
funding.
SEC. 275. NOTICE OF IAEA NOTIFICATIONS.
The President shall notify Congress of any notifications issued by
the IAEA to the United States under Article 10 of the Additional
Protocol.
Subtitle H--Authorization of Appropriations
SEC. 281. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.