PUBLIC LAW 109–401—DEC. 18, 2006

UNITED STATES AND INDIA NUCLEAR

COOPERATION

120 STAT. 2726 PUBLIC LAW 109–401—DEC. 18, 2006

Public Law 109–401

109th Congress

An Act

To exempt from certain requirements of the Atomic Energy Act of 1954 a proposed

nuclear agreement for cooperation with India.

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 StatesIndia 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—

22 USC 8001.

22 USC 8001

note.

Henry J. Hyde

United StatesIndia Peaceful

Atomic Energy

Cooperation Act

of 2006.

Dec. 18, 2006

[H.R. 5682]

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2727

(A) the country has demonstrated responsible behavior

with respect to the nonproliferation of technology related

to nuclear weapons and the means to deliver them;

(B) the country has a functioning and uninterrupted

democratic system of government, has a foreign policy that

is congruent to that of the United States, and is working

with the United States on key foreign policy initiatives

related to nonproliferation;

(C) such cooperation induces the country to promulgate

and implement substantially improved protections against

the proliferation of technology related to nuclear weapons

and the means to deliver them, and to refrain from actions

that would further the development of its nuclear weapons

program; and

(D) such cooperation will induce the country to give

greater political and material support to the achievement

of United States global and regional nonproliferation objectives, especially with respect to dissuading, isolating, and,

if necessary, sanctioning and containing states that sponsor

terrorism and terrorist groups that are seeking to acquire

a nuclear weapons capability or other weapons of mass

destruction capability and the means to deliver such

weapons;

(7) the United States should continue its policy of engagement, collaboration, and exchanges with and between India

and Pakistan;

(8) strong bilateral relations with India are in the national

interest of the United States;

(9) the United States and India share common democratic

values and the potential for increasing and sustained economic

engagement;

(10) commerce in civil nuclear energy with India by the

United States and other countries has the potential to benefit

the people of all countries;

(11) such commerce also represents a significant change

in United States policy regarding commerce with countries

that are not States Party to the NPT, which remains the

foundation of the international nonproliferation regime;

(12) any commerce in civil nuclear energy with India by

the United States and other countries must be achieved in

a manner that minimizes the risk of nuclear proliferation or

regional arms races and maximizes India’s adherence to international nonproliferation regimes, including, in particular, the

guidelines of the Nuclear Suppliers Group (NSG); and

(13) the United States should not seek to facilitate or

encourage the continuation of nuclear exports to India by any

other party if such exports are terminated under United States

law.

SEC. 103. 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

22 USC 8002.

120 STAT. 2728 PUBLIC LAW 109–401—DEC. 18, 2006

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

India.

Pakistan.

People’s Republic

of China.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2729

(E) ratification of or accession to the Convention on

Supplementary Compensation for Nuclear Damage, done

at Vienna on September 12, 1997.

(4) Secure India’s full and active participation in United

States efforts to dissuade, isolate, and, if necessary, sanction

and contain Iran for its efforts to acquire weapons of mass

destruction, including a nuclear weapons capability and the

capability to enrich uranium or reprocess nuclear fuel, and

the means to deliver weapons of mass destruction.

(5) Seek to halt the increase of nuclear weapon arsenals

in South Asia and to promote their reduction and eventual

elimination.

(6) Ensure that spent fuel generated in India’s civilian

nuclear power reactors is not transferred to the United States

except pursuant to the Congressional review procedures

required under section 131 f. of the Atomic Energy Act of

1954 (42 U.S.C. 2160 (f)).

(7) Pending implementation of the multilateral moratorium

described in paragraph (1) or the treaty described in paragraph

(2), encourage India not to increase its production of fissile

material at unsafeguarded nuclear facilities.

(8) Ensure that any safeguards agreement or Additional

Protocol to which India is a party with the IAEA can reliably

safeguard any export or reexport to India of any nuclear materials and equipment.

(9) Ensure that the text and implementation of any agreement for cooperation with India arranged pursuant to section

123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153) meet

the requirements set forth in subsections a.(1) and a.(3) through

a.(9) of such section.

(10) Any nuclear power reactor fuel reserve provided to

the Government of India for use in safeguarded civilian nuclear

facilities should be commensurate with reasonable reactor operating requirements.

SEC. 104. 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.

India.

22 USC 8003.

120 STAT. 2730 PUBLIC LAW 109–401—DEC. 18, 2006

(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

President.

Reports.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2731

in subparagraph (A), together with a copy of the agreement,

and a description of the progress toward its full

implementation.

(C) A summary of the progress made toward conclusion

and implementation of an Additional Protocol between

India and the IAEA, including a description of the scope

of such Additional Protocol.

(D) A description of the steps that India is taking

to work with the United States for the conclusion of a

multilateral treaty banning the production of fissile material for nuclear weapons, including a description of the

steps that the United States has taken and will take to

encourage India to identify and declare a date by which

India would be willing to stop production of fissile material

for nuclear weapons unilaterally or pursuant to a multilateral moratorium or treaty.

(E) A description of the steps India is taking to prevent

the spread of nuclear-related technology, including enrichment and reprocessing technology or materials that can

be used to acquire a nuclear weapons capability, as well

as the support that India is providing to the United States

to further United States objectives to restrict the spread

of such technology.

(F) A description of the steps that India is taking

to secure materials and technology applicable for the

development, acquisition, or manufacture of weapons of

mass destruction and the means to deliver such weapons

through the application of comprehensive export control

legislation and regulations, and through harmonization

with and adherence to MTCR, NSG, Australia Group, and

Wassenaar Arrangement guidelines, compliance with

United Nations Security Council Resolution 1540, and

participation in the Proliferation Security Initiative.

(G) A description and assessment of the specific measures that India has taken to fully and actively participate

in United States and international efforts to dissuade, isolate, and, if necessary, sanction and contain Iran for its

efforts to acquire weapons of mass destruction, including

a nuclear weapons capability and the capability to enrich

uranium or reprocess nuclear fuel and the means to deliver

weapons of mass destruction.

(H) A description of the decision of the NSG relating

to nuclear cooperation with India, including whether

nuclear cooperation by the United States under an agreement for cooperation arranged pursuant to section 123

of the Atomic Energy Act of 1954 (42 U.S.C. 2153) is

consistent with the decision, practices, and policies of the

NSG.

(I) A description of the scope of peaceful cooperation

envisioned by the United States and India that will be

implemented under the agreement for nuclear cooperation,

including whether such cooperation will include the provision of enrichment and reprocessing technology.

(J) A description of the steps taken to ensure that

proposed United States civil nuclear cooperation with India

will not in any way assist India’s nuclear weapons program.

(d) RESTRICTIONS ON NUCLEAR TRANSFERS.—

120 STAT. 2732 PUBLIC LAW 109–401—DEC. 18, 2006

(1) IN GENERAL.—Pursuant to the obligations of the United

States under Article I of the NPT, nothing in this title constitutes authority to carry out any civil nuclear cooperation

between the United States and a country that is not a nuclearweapon State Party to the NPT that would in any way assist,

encourage, or induce that country to manufacture or otherwise

acquire nuclear weapons or nuclear explosive devices.

(2) NSG TRANSFER GUIDELINES.—Notwithstanding the

entry into force of an agreement for cooperation with India

arranged pursuant to section 123 of the Atomic Energy Act

of 1954 (42 U.S.C. 2153) and pursuant to this title, no item

subject to such agreement or subject to the transfer guidelines

of the NSG, or to NSG decisions related thereto, may be transferred to India if such transfer would be inconsistent with

the transfer guidelines of the NSG in effect on the date of

the transfer.

(3) TERMINATION OF NUCLEAR TRANSFERS TO INDIA.—

(A) IN GENERAL.—Notwithstanding the entry into force

of an agreement for cooperation with India arranged pursuant to section 123 of the Atomic Energy Act of 1954 (42

U.S.C. 2153) and pursuant to this title, and except as

provided under subparagraph (B), exports of nuclear and

nuclear-related material, equipment, or technology to India

shall be terminated if there is any materially significant

transfer by an Indian person of—

(i) nuclear or nuclear-related material, equipment,

or technology that is not consistent with NSG guidelines or decisions, or

(ii) ballistic missiles or missile-related equipment

or technology that is not consistent with MTCR guidelines,

unless the President determines that cessation of such

exports would be seriously prejudicial to the achievement

of United States nonproliferation objectives or otherwise

jeopardize the common defense and security.

(B) EXCEPTION.—The President may choose not to

terminate exports of nuclear and nuclear-related material,

equipment, and technology to India under subparagraph

(A) if—

(i) the transfer covered under such subparagraph

was made without the knowledge of the Government

of India;

(ii) at the time of the transfer, either the Government of India did not own, control, or direct the Indian

person that made the transfer or the Indian person

that made the transfer is a natural person who acted

without the knowledge of any entity described in

subparagraph (B) or (C) of section 110(5); and

(iii) the President certifies to the appropriate

congressional committees that the Government of India

has taken or is taking appropriate judicial or other

enforcement actions against the Indian person with

respect to such transfer.

(4) EXPORTS, REEXPORTS, TRANSFERS, AND RETRANSFERS TO

INDIA RELATED TO ENRICHMENT, REPROCESSING, AND HEAVY

WATER PRODUCTION.— (A) IN GENERAL.—

Certification.

President.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2733

(i) NUCLEAR REGULATORY COMMISSION.—The

Nuclear Regulatory Commission may only issue

licenses for the export or reexport to India of any

equipment, components, or materials related to the

enrichment of uranium, the reprocessing of spent

nuclear fuel, or the production of heavy water if the

requirements of subparagraph (B) are met.

(ii) SECRETARY OF ENERGY.—The Secretary of

Energy may only issue authorizations for the transfer

or retransfer to India of any equipment, materials,

or technology related to the enrichment of uranium,

the reprocessing of spent nuclear fuel, or the production

of heavy water (including under the terms of a subsequent arrangement under section 131 of the Atomic

Energy Act of 1954 (42 U.S.C. 2160)) if the requirements of subparagraph (B) are met.

(B) REQUIREMENTS FOR APPROVALS.—Exports,

reexports, transfers, and retransfers referred to in subparagraph (A) may only be approved if—

(i) the end user—

(I) is a multinational facility participating in

an IAEA-approved program to provide alternatives

to national fuel cycle capabilities; or

(II) is a facility participating in, and the

export, reexport, transfer, or retransfer is associated with, a bilateral or multinational program

to develop a proliferation-resistant fuel cycle;

(ii) appropriate measures are in place at any

facility referred to in clause (i) to ensure that no sensitive nuclear technology, as defined in section 4(5)

of the Nuclear Nonproliferation Act of 1978 (22 U.S.C.

3203(5)), will be diverted to any person, site, facility,

location, or program not under IAEA safeguards; and

(iii) 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.

President.

President.

120 STAT. 2734 PUBLIC LAW 109–401—DEC. 18, 2006

(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;

President.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2735

(ii) the separation plan presented in the national

parliament of India on March 7, 2006, and in greater

detail on May 11, 2006;

(iii) a safeguards agreement between the Government of India and the IAEA;

(iv) an Additional Protocol between the Government of India and the IAEA;

(v) an agreement for cooperation between the

Government of India and the United States Government arranged pursuant to section 123 of the Atomic

Energy Act of 1954 (42 U.S.C. 2153) or any subsequent

arrangement under section 131 of such Act (42 U.S.C.

2160);

(vi) the terms and conditions of any approved

licenses regarding the export or reexport of nuclear

material or dual-use material, equipment, or technology; and

(vii) United States laws and regulations regarding

such licenses;

(B) the construction of a nuclear facility in India after

the date of the enactment of this title;

(C) significant changes in the production by India of

nuclear weapons or in the types or amounts of fissile material produced; and

(D) changes in the purpose or operational status of

any unsafeguarded nuclear fuel cycle activities in India.

(2) 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;

President.

120 STAT. 2736 PUBLIC LAW 109–401—DEC. 18, 2006

(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;

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2737

(F) an analysis of whether United States civil nuclear

cooperation with India is in any way assisting India’s

nuclear weapons program, including through—

(i) the use of any United States equipment, technology, or nuclear material by India in an

unsafeguarded nuclear facility or nuclear-weapons

related complex;

(ii) the replication and subsequent use of any

United States technology by India in an unsafeguarded

nuclear facility or unsafeguarded nuclear weaponsrelated complex, or for any activity related to the

research, development, testing, or manufacture of

nuclear explosive devices; and

(iii) the provision of nuclear fuel in such a manner

as to facilitate the increased production by India of

highly enriched uranium or plutonium in

unsafeguarded nuclear facilities;

(G) a detailed description of—

(i) United States efforts to promote national or

regional progress by India and Pakistan in disclosing,

securing, limiting, and reducing their fissile material

stockpiles, including stockpiles for military purposes,

pending creation of a worldwide fissile material cutoff regime, including the institution of a Fissile Material Cut-off Treaty;

(ii) the responses of India and Pakistan to such

efforts; and

(iii) assistance that the United States is providing,

or would be able to provide, to India and Pakistan

to promote the objectives in clause (i), consistent with

its obligations under international law and existing

agreements;

(H) an estimate of—

(i) the amount of uranium mined and milled in

India during the previous year;

(ii) the amount of such uranium that has likely

been used or allocated for the production of nuclear

explosive devices; and

(iii) the rate of production in India of—

(I) fissile material for nuclear explosive

devices; and

(II) nuclear explosive devices;

(I) an estimate of the amount of electricity India’s

nuclear reactors produced for civil purposes during the

previous year and the proportion of such production that

can be attributed to India’s declared civil reactors;

(J) an analysis as to whether imported uranium has

affected the rate of production in India of nuclear explosive

devices;

(K) a detailed description of efforts and progress made

toward the achievement of India’s—

(i) full participation in the Proliferation Security

Initiative;

(ii) formal commitment to the Statement of Interdiction Principles of such Initiative;

(iii) public announcement of its decision to conform

its export control laws, regulations, and policies with

120 STAT. 2738 PUBLIC LAW 109–401—DEC. 18, 2006

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

22 USC 2652c.

22 USC 8006.

President.

22 USC 8005.

22 USC 8004.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2739

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)).

22 USC 8008.

Contracts.

22 USC 8007.

120 STAT. 2740 PUBLIC LAW 109–401—DEC. 18, 2006

(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)).

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2741

(16) The term ‘‘unsafeguarded nuclear fuel-cycle activity’’

means research on, or development, design, manufacture,

construction, operation, or maintenance of—

(A) any existing or future reactor, critical facility,

conversion plant, fabrication plant, reprocessing plant,

plant for the separation of isotopes of source or special

fissionable material, or separate storage installation with

respect to which there is no obligation to accept IAEA

safeguards at the relevant reactor, facility, plant, or

installation that contains source or special fissionable material; or

(B) any existing or future heavy water production plant

with respect to which there is no obligation to accept IAEA

safeguards on any nuclear material produced by or used

in connection with any heavy water produced therefrom.

TITLE II—UNITED STATES ADDITIONAL

PROTOCOL IMPLEMENTATION

SEC. 201. SHORT TITLE.

This title may be cited as the ‘‘United States Additional Protocol

Implementation Act’’.

SEC. 202. FINDINGS.

Congress makes the following findings:

(1) The proliferation of nuclear weapons and other nuclear

explosive devices poses a grave threat to the national security

of the United States and its vital national interests.

(2) The Nuclear Non-Proliferation Treaty has proven critical to limiting such proliferation.

(3) For the Nuclear Non-Proliferation Treaty to be effective,

each of the non-nuclear-weapon State Parties must conclude

a comprehensive safeguards agreement with the IAEA, and

such agreements must be honored and enforced.

(4) Recent events emphasize the urgency of strengthening

the effectiveness and improving the efficiency of the safeguards

system. This can best be accomplished by providing IAEA

inspectors with more information about, and broader access

to, nuclear activities within the territory of non-nuclear-weapon

State Parties.

(5) The proposed scope of such expanded information and

access has been negotiated by the member states of the IAEA

in the form of a Model Additional Protocol to its existing safeguards agreements, and universal acceptance of Additional

Protocols by non-nuclear weapons states is essential to

enhancing the effectiveness of the Nuclear Non-Proliferation

Treaty.

(6) On June 12, 1998, the United States, as a nuclearweapon State Party, signed an Additional Protocol that is based

on the Model Additional Protocol, but which also contains measures, consistent with its existing safeguards agreements with

its members, that protect the right of the United States to

exclude the application of IAEA safeguards to locations and

activities with direct national security significance or to locations or information associated with such activities.

22 USC 8101.

22 USC 8101

note.

United States

Additional

Protocol

Implementation

Act.

120 STAT. 2742 PUBLIC LAW 109–401—DEC. 18, 2006

(7) Implementation of the Additional Protocol in the United

States in a manner consistent with United States obligations

under the Nuclear Non-Proliferation Treaty may encourage

other parties to the Nuclear Non-Proliferation Treaty, especially

non-nuclear-weapon State Parties, to conclude Additional Protocols and thereby strengthen the Nuclear Non-Proliferation

Treaty safeguards system and help reduce the threat of nuclear

proliferation, which is of direct and substantial benefit to the

United States.

(8) Implementation of the Additional Protocol by the United

States is not required and is completely voluntary given its

status as a nuclear-weapon State Party, but the United States

has acceded to the Additional Protocol to demonstrate its

commitment to the nuclear nonproliferation regime and to make

United States civil nuclear activities available to the same

IAEA inspections as are applied in the case of non-nuclearweapon State Parties.

(9) In accordance with the national security exclusion contained in Article 1.b of its Additional Protocol, the United

States will not allow any inspection activities, nor make any

declaration of any information with respect to, locations,

information, and activities of direct national security significance to the United States.

(10) Implementation of the Additional Protocol will conform

to the principles set forth in the letter of April 30, 2002,

from the United States Permanent Representative to the International Atomic Energy Agency and the Vienna Office of the

United Nations to the Director General of the International

Atomic Energy Agency.

SEC. 203. DEFINITIONS.

In this title:

(1) ADDITIONAL PROTOCOL.—The term ‘‘Additional Protocol’’,

when used in the singular form, means the Protocol Additional

to the Agreement between the United States of America and

the International Atomic Energy Agency for the Application

of Safeguards in the United States of America, with Annexes,

signed at Vienna June 12, 1998 (T. Doc. 107–7).

(2) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term

‘‘appropriate congressional committees’’ means the Committee

on Armed Services, the Committee on Foreign Relations, and

the Committee on Appropriations of the Senate and the Committee on Armed Services, the Committee on International

Relations, the Committee on Science, and the Committee on

Appropriations of the House of Representatives.

(3) COMPLEMENTARY ACCESS.—The term ‘‘complementary

access’’ means the exercise of the IAEA’s access rights as set

forth in Articles 4 to 6 of the Additional Protocol.

(4) EXECUTIVE AGENCY.—The term ‘‘executive agency’’ has

the meaning given such term in section 105 of title 5, United

States Code.

(5) FACILITY.—The term ‘‘facility’’ has the meaning set forth

in Article 18i. of the Additional Protocol.

(6) IAEA.—The term ‘‘IAEA’’ means the International

Atomic Energy Agency.

(7) JUDGE OF THE UNITED STATES.—The term ‘‘judge of

the United States’’ means a United States district judge, or

22 USC 8102.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2743

a United States magistrate judge appointed under the authority

of chapter 43 of title 28, United States Code.

(8) LOCATION.—The term ‘‘location’’ means any geographic

point or area declared or identified by the United States or

specified by the International Atomic Energy Agency.

(9) NUCLEAR NON-PROLIFERATION TREATY.—The term

‘‘Nuclear Non-Proliferation Treaty’’ means the Treaty on the

Non-Proliferation of Nuclear Weapons, done at Washington,

London, and Moscow July 1, 1968, and entered into force March

5, 1970 (21 UST 483).

(10) NUCLEAR-WEAPON STATE PARTY AND NON-NUCLEAR- WEAPON STATE PARTY.—The terms ‘‘nuclear-weapon State

Party’’ and ‘‘non-nuclear-weapon State Party’’ have the

meanings given such terms in the Nuclear Non-Proliferation

Treaty.

(11) PERSON.—The term ‘‘person’’, except as otherwise provided, means any individual, corporation, partnership, firm,

association, trust, estate, public or private institution, any State

or any political subdivision thereof, or any political entity within

a State, any foreign government or nation or any agency,

instrumentality, or political subdivision of any such government

or nation, or other entity located in the United States.

(12) SITE.—The term ‘‘site’’ has the meaning set forth in

Article 18b. of the Additional Protocol.

(13) UNITED STATES.—The term ‘‘United States’’, when used

as a geographic reference, means the several States of the

United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States and

includes all places under the jurisdiction or control of the

United States, including—

(A) the territorial sea and the overlying airspace;

(B) any civil aircraft of the United States or public

aircraft, as such terms are defined in paragraphs (17) and

(41), respectively, of section 40102(a) of title 49, United

States Code; and

(C) any vessel of the United States, as such term

is defined in section 3(b) of the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1903(b)).

(14) WIDE-AREA ENVIRONMENTAL SAMPLING.—The term

‘‘wide-area environmental sampling’’ has the meaning set forth

in Article 18g. of the Additional Protocol.

SEC. 204. 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

President.

22 USC 8111.

22 USC 8103.

120 STAT. 2744 PUBLIC LAW 109–401—DEC. 18, 2006

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.—

22 USC 8122.

22 USC 8121.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2745

(A) IN GENERAL.—The notice required by paragraph

(1) shall specify—

(i) the purpose for the complementary access;

(ii) the basis for the selection of the facility, site,

or other location for the complementary access sought;

(iii) the activities that will be carried out during

the complementary access;

(iv) the time and date that the complementary

access is expected to begin, and the anticipated period

covered by the complementary access; and

(v) the names and titles of the inspectors.

(4) SEPARATE NOTICES REQUIRED.—A separate notice shall

be provided each time that complementary access is sought

by the IAEA.

(c) CREDENTIALS.—The complementary access team of the IAEA

and representatives or designees of the United States Government

shall display appropriate identifying credentials to the owner, operator, occupant, or agent in charge of the location before gaining

entry in connection with complementary access.

(d) SCOPE.—

(1) IN GENERAL.—Except as provided in a warrant issued

under section 223, and subject to the rights of the United

States Government under the Additional Protocol to limit complementary access, complementary access to a location pursuant

to this title may extend to all activities specifically permitted

for such locations under Article 6 of the Additional Protocol.

(2) EXCEPTION.—Unless required by the Additional Protocol, no inspection under this title shall extend to—

(A) financial data (other than production data);

(B) sales and marketing data (other than shipment

data);

(C) pricing data;

(D) personnel data;

(E) patent data;

(F) data maintained for compliance with environmental

or occupational health and safety regulations; or

(G) research data.

(e) ENVIRONMENT, HEALTH, SAFETY, AND SECURITY.—In carrying out their activities, members of the IAEA complementary

access team and representatives or designees of the United States

Government shall observe applicable environmental, health, safety,

and security regulations established at the location subject to complementary access, including those for protection of controlled

environments within a facility and for personal safety.

SEC. 223. 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.

22 USC 8123.

120 STAT. 2746 PUBLIC LAW 109–401—DEC. 18, 2006

(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

Courts.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2747

to regulations promulgated under this title is incorrect

or incomplete, and that the location to be accessed

contains evidence regarding that violation; or

(ii) pursuant to a reasonable general administrative plan based upon specific neutral criteria.

(3) CONTENT OF WARRANTS.—A warrant issued under paragraph (2) shall specify the same matters required of an affidavit

under that paragraph. In addition, each warrant shall contain

the identities of the representatives of the IAEA on the complementary access team and the identities of the representatives or designees of the United States Government required

to display identifying credentials under section 222(c).

SEC. 224. 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

Deadline.

22 USC 8142.

22 USC 8141.

22 USC 8131.

22 USC 8124.

120 STAT. 2748 PUBLIC LAW 109–401—DEC. 18, 2006

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

Deadline.

Deadline.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2749

(ii) a court in an action brought under paragraph

(4) has entered a final judgment in favor of the designated executive agency,

the head of the designated executive agency shall commence a civil action to seek compliance with the final

order in any appropriate district court of the United States.

(B) NO REVIEW.—In any such civil action, the validity

and appropriateness of the final order shall not be subject

to review.

(C) INTEREST.—Payment of penalties assessed in a final

order under this section shall include interest at currently

prevailing rates calculated from the date of expiration of

the 60-day period referred to in paragraph (3) or the date

of such final order, as the case may be.

(b) CRIMINAL.—Any person who violates section 224 or section

241 may, in addition to or in lieu of any civil penalty which

may be imposed under subsection (a) for such violation, be fined

under title 18, United States Code, imprisoned for not more than

five years, or both.

SEC. 243. 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—

Deadline.

President.

22 USC 8151.

22 USC 8143.

120 STAT. 2750 PUBLIC LAW 109–401—DEC. 18, 2006

(1) a description of the specific methods and sampling

techniques approved by the Board of Governors that are to

be employed for purposes of wide-area sampling;

(2) a statement as to whether or not such sampling may

be conducted in the United States under the Additional Protocol; and

(3) an assessment of the ability of the approved methods

and sampling techniques to detect, identify, and determine

the conduct, type, and nature of nuclear activities.

SEC. 252. APPLICATION OF NATIONAL SECURITY EXCLUSION TO WIDEAREA ENVIRONMENTAL SAMPLING.

In accordance with Article 1(b) of the Additional Protocol, the

United States shall not permit any wide-area environmental sampling proposed by the IAEA to be conducted at a specified location

in the United States under Article 9 of the Additional Protocol

unless the President has determined and reported to the appropriate

congressional committees with respect to that proposed use of

environmental sampling that—

(1) the proposed use of wide-area environmental sampling

is necessary to increase the capability of the IAEA to detect

undeclared nuclear activities in the territory of a non-nuclearweapon State Party;

(2) the proposed use of wide-area environmental sampling

will not result in access by the IAEA to locations, activities,

or information of direct national security significance; and

(3) the United States—

(A) has been provided sufficient opportunity for consultation with the IAEA if the IAEA has requested complementary access involving wide-area environmental sampling; or

(B) has requested under Article 8 of the Additional

Protocol that the IAEA engage in complementary access

in the United States that involves the use of wide-area

environmental sampling.

SEC. 253. APPLICATION OF NATIONAL SECURITY EXCLUSION TO LOCATION-SPECIFIC ENVIRONMENTAL SAMPLING.

In accordance with Article 1(b) of the Additional Protocol, the

United States shall not permit any location-specific environmental

sampling in the United States under Article 5 of the Additional

Protocol unless the President has determined and reported to the

appropriate congressional committees with respect to that proposed

use of environmental sampling that—

(1) the proposed use of location-specific environmental sampling is necessary to increase the capability of the IAEA to

detect undeclared nuclear activities in the territory of a nonnuclear-weapon State Party;

(2) the proposed use of location-specific environmental sampling will not result in access by the IAEA to locations, activities, or information of direct national security significance; and

(3) with respect to the proposed use of environmental sampling, the United States—

(A) has been provided sufficient opportunity for consultation with the IAEA if the IAEA has requested complementary access involving location-specific environmental

sampling; or

President.

22 USC 8153.

22 USC 8152.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2751

(B) has requested under Article 8 of the Additional

Protocol that the IAEA engage in complementary access

in the United States that involves the use of locationspecific environmental sampling.

SEC. 254. RULE OF CONSTRUCTION.

As used in this subtitle, the term ‘‘necessary to increase the

capability of the IAEA to detect undeclared nuclear activities in

the territory of a non-nuclear-weapon State Party’’ shall not be

construed to encompass proposed uses of environmental sampling

that might assist the IAEA in detecting undeclared nuclear activities in the territory of a non-nuclear-weapon State Party by—

(1) setting a good example of cooperation in the conduct

of such sampling; or

(2) facilitating the formation of a political consensus or

political support for such sampling in the territory of a nonnuclear-weapon State Party.

Subtitle F—Protection of National Security

Information and Activities

SEC. 261. PROTECTION OF CERTAIN INFORMATION.

(a) LOCATIONS AND FACILITIES OF DIRECT NATIONAL SECURITY

SIGNIFICANCE.—No current or former Department of Defense or

Department of Energy location, site, or facility of direct national

security significance shall be declared or be subject to IAEA inspection under the Additional Protocol.

(b) INFORMATION OF DIRECT NATIONAL SECURITY SIGNIFICANCE.—No information of direct national security significance

regarding any location, site, or facility associated with activities

of the Department of Defense or the Department of Energy shall

be provided under the Additional Protocol.

(c) RESTRICTED DATA.—Nothing in this title shall be construed

to permit the communication or disclosure to the IAEA or IAEA

employees of restricted data controlled by the provisions of the

Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), including

in particular ‘‘Restricted Data’’ as defined under paragraph (1)

of section 11 y. of such Act (42 U.S.C. 2014(y)).

(d) CLASSIFIED INFORMATION.—Nothing in this Act shall be

construed to permit the communication or disclosure to the IAEA

or IAEA employees of national security information and other classified information.

SEC. 262. IAEA INSPECTIONS AND VISITS.

(a) CERTAIN INDIVIDUALS PROHIBITED FROM OBTAINING

ACCESS.—No national of a country designated by the Secretary

of State under section 620A of the Foreign Assistance Act of 1961

(22 U.S.C. 2371) as a government supporting acts of international

terrorism shall be permitted access to the United States to carry

out an inspection activity under the Additional Protocol or a related

safeguards agreement.

(b) PRESENCE OF UNITED STATES GOVERNMENT PERSONNEL.—

IAEA inspectors shall be accompanied at all times by United States

Government personnel when inspecting sites, locations, facilities,

or activities in the United States under the Additional Protocol.

22 USC 8162.

22 USC 8161.

22 USC 8154.

120 STAT. 2752 PUBLIC LAW 109–401—DEC. 18, 2006

(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.

22 USC 8174.

22 USC 8173.

22 USC 8172.

22 USC 8171.

President.

President.

PUBLIC LAW 109–401—DEC. 18, 2006 120 STAT. 2753

LEGISLATIVE HISTORY—H.R. 5682 (S. 3709):

HOUSE REPORTS: No. 109–590, Pt. 1 (Comm. on International

Relations) and 109–721 (Comm. of Conference).

SENATE REPORTS: No. 109–288 accompanying S. 3709 (Comm. on Foreign

Relations).

CONGRESSIONAL RECORD, Vol. 152 (2006):

July 26, considered and passed House.

Nov. 16, considered and passed Senate, amended, in lieu of S. 3709.

Dec. 8, House and Senate agreed to conference report.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 42 (2006):

Dec. 18, Presidential remarks and statement.

Æ

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.

Approved December 18, 2006.

22 USC 8181.

22 USC 8175.