`[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3709 Placed on Calendar Senate (PCS)]







                                                       Calendar No. 527
109th CONGRESS
  2d Session
                                S. 3709

                          [Report No. 109-288]

 To exempt from certain requirements of the Atomic Energy Act of 1954 
 United States exports of nuclear materials, equipment, and technology 
   to India, and to implement the United States Additional Protocol.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 20, 2006

   Mr. Lugar, from the Committee on Foreign Relations, reported the 
    following original bill; which was read twice and placed on the 
                                calendar

_______________________________________________________________________

                                 A BILL


 
 To exempt from certain requirements of the Atomic Energy Act of 1954 
 United States exports of nuclear materials, equipment, and technology 
   to India, and to implement the United States Additional Protocol.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

    TITLE I--UNITED STATES-INDIA PEACEFUL ATOMIC ENERGY COOPERATION

SECTION 101. SHORT TITLE.

    This title may be cited as the ``United States-India Peaceful 
Atomic Energy Cooperation Act''.

SEC. 102. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) strong bilateral relations with India are in the 
        national interest of the United States;
            (2) the United States and India share common democratic 
        values and the potential for increasing and sustained economic 
        engagement;
            (3) commerce in civil nuclear energy with India by the 
        United States and other countries has the potential to benefit 
        the people of all countries;
            (4) such commerce also represents a significant change in 
        United States policy regarding commerce with countries not 
        parties to the Nuclear Non-Proliferation Treaty, which remains 
        the foundation of the international non-proliferation regime;
            (5) any commerce in civil nuclear energy with India by the 
        United States and other countries must be achieved in a manner 
        that minimizes the risk of nuclear proliferation or regional 
        arms races and maximizes India's adherence to international 
        non-proliferation regimes, including, in particular, the 
        Guidelines of the Nuclear Suppliers Group (NSG); and
            (6) the United States should not seek to facilitate or 
        encourage the continuation of nuclear exports to India by any 
        other party if such exports are terminated under United States 
        law.

SEC. 103. DECLARATION OF POLICY CONCERNING UNITED STATES-INDIA PEACEFUL 
              ATOMIC ENERGY COOPERATION.

    It shall be the policy of the United States with respect to any 
peaceful atomic energy cooperation between the United States and 
India--
            (1) to achieve as quickly as possible a cessation of the 
        production by India and Pakistan of fissile materials for 
        nuclear weapons and other nuclear explosive devices;
            (2) to achieve as quickly as possible the Government of 
        India's adherence to, and cooperation in, the full range of 
        international non-proliferation regimes and activities, 
        including India's--
                    (A) full participation in the Proliferation 
                Security Initiative;
                    (B) formal commitment to the Statement of 
                Interdiction Principles;
                    (C) public announcement of its decision to conform 
                its export control laws, regulations, and policies with 
                the Australia Group and with the Guidelines, 
                Procedures, Criteria, and Controls List of the 
                Wassenaar Arrangement; and
                    (D) demonstration of satisfactory progress toward 
                implementing the decision described in subparagraph 
                (C);
            (3) to ensure that India remains in full compliance with 
        its non-proliferation, arms control, and disarmament 
        agreements, obligations, and commitments;
            (4) to ensure that any safeguards agreement or Additional 
        Protocol thereto to which India is a party with the 
        International Atomic Energy Agency (IAEA) can reliably 
        safeguard any export or reexport to India of any nuclear 
        materials and equipment;
            (5) to meet the requirements set forth in subsections a.(1) 
        and a.(3)-a.(9) of section 123 of the Atomic Energy Act of 1954 
        (42 U.S.C. 2153);
            (6) to act in a manner fully consistent with the Guidelines 
        for Nuclear Transfers and the Guidelines for Transfers of 
        Nuclear-Related Dual-Use Equipment, Materials, Software and 
        Related Technology developed by the multilateral Nuclear 
        Suppliers Group and the rules and practices regarding NSG 
        decision-making;
            (7) given the special sensitivity of equipment and 
        technologies related to the enrichment of uranium, the 
        reprocessing of spent nuclear fuel, and the production of heavy 
        water, to work with members of the Nuclear Suppliers Group, 
        individually and collectively, to further restrict the 
        transfers of such equipment and technologies, including to 
        India;
            (8) to maintain the fullest possible international support 
        for, adherence to, and compliance with the Nuclear Non-
        Proliferation Treaty; and
            (9) that exports of nuclear fuel to India should not 
        contribute to, or in any way encourage, increases in the 
        production by India of fissile material for non-civilian 
        purposes.

SEC. 104. WAIVERS FOR COOPERATION WITH INDIA.

    (a) Waiver Authority.--If the President submits a determination 
under section 105 to the appropriate congressional committees, the 
President may--
            (1) subject to subsection (b), exempt a proposed agreement 
        for cooperation with India arranged pursuant to section 123 of 
        the Atomic Energy Act of 1954 (42 U.S.C. 2153) from the 
        requirement of subsection a.(2) of such section;
            (2) waive the application of section 128 of the Atomic 
        Energy Act of 1954 (42 U.S.C. 2157) with respect to exports to 
        India; and
            (3) waive the application of any sanction with respect to 
        India under--
                    (A) section 129 a.(1)(D) of the Atomic Energy Act 
                of 1954 (42 U.S.C. 2158(a)(1)(D)); and
                    (B) section 129 of such Act (42 U.S.C. 2158) 
                regarding any actions that occurred before July 18, 
                2005.
    (b) Joint Resolution of Approval Requirement.--An agreement for 
cooperation exempted by the President pursuant to subsection (a)(1) 
shall be subject to the second proviso in subsection d. of section 123 
of the Atomic Energy Act of 1954 (42 U.S.C. 2153(d)) applicable to 
agreements exempted by the President pursuant to subsection (a) of such 
section.

SEC. 105. DETERMINATION REGARDING UNITED STATES-INDIA PEACEFUL ATOMIC 
              ENERGY COOPERATION.

    The determination referred to in section 104 is a written 
determination by the President, which shall be accompanied by a report 
to the appropriate congressional committees, that--
            (1) India has provided to the IAEA and the United States a 
        credible plan to separate its civil nuclear facilities, 
        materials, and programs from its military facilities, 
        materials, and programs;
            (2) India has filed a complete declaration regarding its 
        civil nuclear facilities and materials with the IAEA;
            (3) an agreement between India and the IAEA requiring the 
        application of safeguards in perpetuity in accordance with IAEA 
        standards, principles, and practices to civil nuclear 
        facilities, programs, and materials described in paragraph (2) 
        has entered into force and the text of such agreement has been 
        made available to the appropriate congressional committees;
            (4) India and the IAEA are making substantial progress 
        toward implementing an Additional Protocol;
            (5) India is working with the United States to conclude a 
        multilateral treaty on the cessation of the production of 
        fissile materials for use in nuclear weapons or other nuclear 
        explosive devices;
            (6) India is supporting international efforts to prevent 
        the spread of enrichment and reprocessing technology to any 
        state that does not already possess full-scale, functioning 
        enrichment or reprocessing plants;
            (7) India has secured nuclear and other sensitive materials 
        and technology through the application of comprehensive export 
        control legislation and regulations, including through 
        effective enforcement actions, and through harmonization of its 
        control lists with, and adherence to, the guidelines of the 
        Missile Technology Control Regime and the Nuclear Suppliers 
        Group; and
            (8) the Nuclear Suppliers Group has decided to permit civil 
        nuclear commerce with India pursuant to a decision taken by the 
        Nuclear Suppliers Group that--
                    (A) was made by consensus; and
                    (B) does not permit nuclear commerce with any non-
                nuclear weapon state other than India that does not 
                have IAEA safeguards on all nuclear materials and all 
                peaceful nuclear activities within the territory of 
                such state, under its jurisdiction, or carried out 
                under its control anywhere.

SEC. 106. PROHIBITION ON CERTAIN EXPORTS AND REEXPORTS.

    (a) Sense of Congress on Licensing Policy.--It is the sense of 
Congress that it is in the interest of the United States to permit the 
timely consideration of applications for the export and reexport to 
India of any nuclear materials and sensitive technology requiring 
authorizations pursuant to parts 110 and 810 of title 10, Code of 
Federal Regulations, to the extent that such exports and reexports are 
consistent with United States laws, regulations, and policies in effect 
at the time such export or reexport applications are to be considered.
    (b) Prohibition.--
            (1) In general.--
                    (A) Nuclear regulatory commission.--Except as 
                provided in paragraph (2), the Nuclear Regulatory 
                Commission may not authorize pursuant to part 110 of 
                title 10, Code of Federal Regulations, licenses for the 
                export or reexport to India of any equipment, 
                materials, or technology related to the enrichment of 
                uranium, the reprocessing of spent nuclear fuel, or the 
                production of heavy water.
                    (B) Secretary of energy.--Except as provided in 
                paragraph (2), the Secretary of Energy may not 
                authorize pursuant to part 810 of title 10, Code of 
                Federal Regulations, licenses for the export or 
                reexport to India of any equipment, materials, or 
                technology related to the enrichment of uranium, the 
                reprocessing of spent nuclear fuel, or the production 
                of heavy water.
            (2) Exceptions.--Exports or reexports otherwise prohibited 
        under paragraph (1) may be approved if--
                    (A) 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 or reexport is associated with, a 
                        bilateral or multinational program to develop a 
                        proliferation-resistant fuel cycle; and
                    (B) the President determines that the export or 
                reexport will not improve India's ability to produce 
                nuclear weapons or fissile material for military uses.

SEC. 107. END-USE MONITORING PROGRAM.

    (a) In General.--The President shall ensure that all appropriate 
measures are taken to maintain accountability with respect to nuclear 
materials, equipment, and technology sold, leased, exported, or 
reexported to India and to ensure United States compliance with Article 
I of the Nuclear Non-Proliferation Treaty.
    (b) Measures.--The measures taken pursuant to subsection (a) shall 
include the following:
            (1) Obtaining and implementing assurances and conditions 
        pursuant to the export licensing authorities of the Nuclear 
        Regulatory Commission and the Department of Commerce and the 
        authorizing authorities of the Department of Energy, including, 
        as appropriate, conditions regarding end-use monitoring.
            (2) A detailed system of reporting and accounting for 
        technology transfers, including any retransfers in India, 
        authorized by the Department of Energy pursuant to section 57 
        b. of the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)). Such 
        system shall be capable of providing assurances that--
                    (A) the identified recipients of the nuclear 
                technology are authorized to receive the nuclear 
                technology;
                    (B) the nuclear technology identified for transfer 
                will be used only for peaceful safeguarded nuclear 
                activities and will not be used for any military or 
                nuclear explosive purpose; and
                    (C) the nuclear technology identified for transfer 
                will not be retransferred without the prior consent of 
                the United States, and facilities, equipment, or 
                materials derived through the use of transferred 
                technology will not be transferred without the prior 
                consent of the United States.
            (3) In the event the IAEA is unable to implement safeguards 
        as required by an agreement between the United States and India 
        arranged pursuant to section 123 of the Atomic Energy Act of 
        1954 (42 U.S.C. 2153), arrangements that conform with IAEA 
        safeguards standards, principles, and practices that provide 
        assurances equivalent to that intended to be secured by the 
        system they replace, including--
                    (A) review in a timely fashion of the design of any 
                equipment transferred pursuant to the agreement for 
                cooperation, or of any facility that is to use, 
                fabricate, process, or store any material so 
                transferred or any special nuclear material used in or 
                produced through the use of such material and 
                equipment;
                    (B) maintenance and disclosure of records and of 
                relevant reports for the purpose of assisting in 
                ensuring accountability for material transferred 
                pursuant to the agreement and any source or special 
                nuclear material used in or produced through the use of 
                any material and equipment so transferred; and
                    (C) access to places and data necessary to account 
                for the material referred to in subparagraph (B) and to 
                inspect any equipment or facility referred to in 
                subparagraph (A).
    (c) Implementation.--The measures described in subsection (b) shall 
be implemented to provide reasonable assurances that the recipient is 
complying with the relevant requirements, terms, and conditions of any 
licenses issued by the United States regarding such exports, including 
those relating to the use, retransfer, safe handling, secure transit, 
and storage of such exports.

SEC. 108. IMPLEMENTATION AND COMPLIANCE.

    (a) Information on Nuclear Activities of India.--The President 
shall keep the appropriate congressional committees fully and currently 
informed of the facts and implications of any significant nuclear 
activities of India, including--
            (1) any material non-compliance on the part of the 
        Government of India with--
                    (A) the non-proliferation commitments undertaken in 
                the Joint Statement of July 18, 2005, between the 
                President of the United States and the Prime Minister 
                of India;
                    (B) the separation plan presented in the national 
                parliament of India on March 7, 2006, and in greater 
                detail on May 11, 2006;
                    (C) a safeguards agreement between the Government 
                of India and the IAEA;
                    (D) an Additional Protocol between the Government 
                of India and the IAEA;
                    (E) a peaceful nuclear cooperation agreement 
                between the Government of India and the United States 
                Government pursuant to section 123 of the Atomic Energy 
                Act of 1954 (42 U.S.C. 2153) or any subsequent 
                arrangement under section 131 of such Act (42 U.S.C. 
                2160);
                    (F) the terms and conditions of any approved 
                licenses; and
                    (G) United States laws and regulations regarding 
                the export or reexport of nuclear material or dual-use 
                material, equipment, or technology;
            (2) the construction of a nuclear facility in India after 
        the date of the enactment of this Act;
            (3) significant changes in the production by India of 
        nuclear weapons or in the types or amounts of fissile material 
        produced; and
            (4) changes in the purpose or operational status of any 
        unsafeguarded nuclear fuel cycle activities in India.
    (b) Implementation and Compliance Report.--Not later than 180 days 
after the date on which an agreement between the Government of India 
and the United States Government pursuant to section 123 of the Atomic 
Energy Act of 1954 (42 U.S.C. 2153) enters into force, and annually 
thereafter, the President shall submit to the appropriate congressional 
committees a report including--
            (1) a description of any additional nuclear facilities and 
        nuclear materials that the Government of India has placed or 
        intends to place under IAEA safeguards;
            (2) a comprehensive listing of--
                    (A) all licenses that have been approved by the 
                Nuclear Regulatory Commission and the Secretary of 
                Energy for exports and reexports to India under parts 
                110 and 810 of title 10, Code of Federal Regulations;
                    (B) any licenses approved by the Department of 
                Commerce for the export or reexport to India of 
                commodities, related technology, and software which are 
                controlled for nuclear non-proliferation reasons on the 
                Nuclear Referral List of the Commerce Control List 
                maintained under part 774 of title 15, Code of Federal 
                Regulations;
                    (C) any other United States authorizations for the 
                export or reexport to India of nuclear materials and 
                equipment; and
                    (D) with respect to each such license or other form 
                of authorization described in subparagraphs (A), (B), 
                and (C)--
                            (i) the number or other identifying 
                        information of each license or authorization;
                            (ii) the name or names of the authorized 
                        end user or end users;
                            (iii) the name of the site, facility, or 
                        location in India to which the export or 
                        reexport was made;
                            (iv) the terms and conditions included on 
                        such licenses and authorizations;
                            (v) any post-shipment verification 
                        procedures that will be applied to such exports 
                        or reexports; and
                            (vi) the term of validity of each such 
                        license or authorization;
            (3) any significant nuclear commerce between India and 
        other countries, including any such trade that--
                    (A) does not comply with applicable guidelines or 
                decisions of the Nuclear Suppliers Group; or
                    (B) would not meet the standards applied to exports 
                or reexports of such material, equipment, or technology 
                of United States origin;
            (4) either--
                    (A) a certification that India is in full 
                compliance with the commitments and obligations 
                contained in the agreements and other documents 
                referenced in subparagraphs (A) through (F) of 
                subsection (a)(1); or
                    (B) if the President cannot make such 
                certification, an identification and assessment of all 
                compliance issues arising with regard to the adherence 
                by India to its commitments and obligations, 
                including--
                            (i) the steps the United States Government 
                        has taken to remedy or otherwise respond to 
                        such compliance issues;
                            (ii) the responses of the Government of 
                        India to such steps; and
                            (iii) an assessment of the implications of 
                        any continued noncompliance, including whether 
                        nuclear commerce with India, if not already 
                        terminated under section 129 of the Atomic 
                        Energy Act of 1954 (42 U.S.C. 2158), remains in 
                        the national security interest of the United 
                        States;
            (5) a detailed description of--
                    (A) United States efforts to promote national or 
                regional progress by India and Pakistan in disclosing, 
                securing, capping, and reducing their fissile material 
                stockpiles, pending creation of a world-wide fissile 
                material cut-off regime, including the institution of a 
                Fissile Material Cut-off Treaty;
                    (B) the reactions of India and Pakistan to such 
                efforts; and
                    (C) assistance that the United States is providing, 
                or would be able to provide, to India and Pakistan to 
                promote the objectives in subparagraph (A), consistent 
                with its obligations under international law and 
                existing agreements; and
            (6) a detailed description of efforts and progress made 
        toward the achievement of India's--
                    (A) full participation in the Proliferation 
                Security Initiative;
                    (B) formal commitment to the Statement of 
                Interdiction Principles;
                    (C) public announcement of its decision to conform 
                its export control laws, regulations, and policies with 
                the Australia Group and with the Guidelines, 
                Procedures, Criteria, and Controls List of the 
                Wassenaar Arrangement; and
                    (D) demonstration of satisfactory progress toward 
                implementing the decision described in subparagraph 
                (C).
    (c) Submittal With Other Annual Reports.--
            (1) Report on proliferation prevention.--Each annual report 
        submitted under subsection (b) after the initial report may be 
        submitted together with the annual report on proliferation 
        prevention required under section 601(a) of the Nuclear Non-
        Proliferation Act of 1978 (22 U.S.C. 3281(a)).
            (2) Report on progress toward regional non-proliferation.--
        The information required to be submitted under subsection 
        (b)(5) after the initial report may be submitted together with 
        the annual report on progress toward regional non-proliferation 
        required under section 620F(c) of the Foreign Assistance Act of 
        1961 (22 U.S.C. 2376(c)).
    (d) Form.--Each report submitted under this section shall be 
submitted in unclassified form but may contain a classified annex.

SEC. 109. UNITED STATES COMPLIANCE WITH ITS NUCLEAR NON-PROLIFERATION 
              TREATY OBLIGATIONS.

    This title shall not be deemed to constitute authority for any 
action in violation of any obligation of the United States under the 
Nuclear Non-Proliferation Treaty.

SEC. 110. INOPERABILITY OF DETERMINATION AND WAIVERS.

    A determination under section 105 and any waiver under section 104 
shall cease to be effective if the President determines that India has 
detonated a nuclear explosive device after the date of the enactment of 
this Act.

SEC. 111. MTCR ADHERENT STATUS.

    Congress finds that India is not an MTCR adherent for the purposes 
of Section 73 of the Arms Export Control Act (22 U.S.C. 2797b).

SEC. 112. TECHNICAL AMENDMENT.

    Section 1112(c)(4) of the Arms Control and Nonproliferation Act of 
1999 (title XI of the Admiral James W. Nance and Meg Donovan Foreign 
Relations Act, Fiscal Years 2000 and 2001 (as enacted into law by 
section 1000(a)(7) of Public Law 106-113 and contained in appendix G of 
that Act; 113 Stat. 1501A-486)) is amended--
            (1) in subparagraph (B), by striking ``and'' after the 
        semicolon at the end;
            (2) by redesignating subparagraph (C) as subparagraph (D); 
        and
            (3) by inserting after subparagraph (B) the following new 
        subparagraph:
                    ``(C) so much of the reports required under section 
                108 of the United States-India Peaceful Atomic Energy 
                Cooperation Act as relates to verification or 
                compliance matters; and''.

SEC. 113. DEFINITIONS.

    In this title:
            (1) The term ``Additional Protocol'' means a protocol 
        additional to a safeguards agreement with the IAEA, as 
        negotiated between a country and the IAEA based on a Model 
        Additional Protocol as set forth in IAEA information circular 
        (INFCIRC) 540.
            (2) The term ``appropriate congressional committees'' means 
        the Committee on Foreign Relations of the Senate and the 
        Committee on International Relations of the House of 
        Representatives.
            (3) The term ``atomic energy'' has the meaning given the 
        term in section 11 c. of the Atomic Energy Act of 1954 (42 
        U.S.C. 2014(c)).
            (4) The term ``dual-use material, equipment, or 
        technology'' means material, equipment, or technology that may 
        be used in nuclear or non-nuclear applications.
            (5) The term ``IAEA safeguards'' has the meaning given the 
        term in section 830(3) of the Nuclear Proliferation Prevention 
        Act of 1994 (22 U.S.C. 6305(3)).
            (6) The term ``nuclear materials and equipment'' 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)).
            (7) The term ``Nuclear Non-Proliferation Treaty'' means the 
        Treaty on the Non-Proliferation of Nuclear Weapons, done at 
        Washington, London, and Moscow July 1, 1968, and entered into 
        force March 5, 1970 (21 UST 483).
            (8) The terms ``nuclear weapon'' and ``nuclear explosive 
        device'' 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 point of trinitrotoluene 
        (TNT).
            (9) The terms ``reprocessing'' and ``reprocess'' refer to 
        the separation of nuclear materials from fission products in 
        spent nuclear fuel.
            (10) The term ``sensitive nuclear technology'' has the 
        meaning given the term in section 4(5) of the Nuclear 
        Nonproliferation Act of 1978 (22 U.S.C. 3203(5)).
            (11) 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)).
            (12) 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)).
            (13) 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. DEFINITIONS.

    In this title:
            (1) Additional protocol.--The term ``Additional Protocol'', 
        when used in the singular form, means the Protocol Additional 
        to the Agreement between the United States of America and the 
        International Atomic Energy Agency for the Application of 
        Safeguards in the United States of America, with Annexes, 
        signed at Vienna June 12, 1998 (T. Doc. 107-7).
            (2) Appropriate congressional committees.--The term 
        ``appropriate congressional committees'' means the Committee on 
        Armed Services, the Committee on Foreign Relations, and the 
        Committee on Appropriations of the Senate and the Committee on 
        Armed Services, the Committee on International Relations, and 
        the Committee on Appropriations of the House of 
        Representatives.
            (3) Complementary access.--The term ``complementary 
        access'' means the exercise of the IAEA's access rights as set 
        forth in Articles 4 to 6 of the Additional Protocol.
            (4) Executive agency.--The term ``executive agency'' has 
        the meaning given such term in section 105 of title 5, United 
        States Code.
            (5) Facility.--The term ``facility'' has the meaning set 
        forth in Article 18i. of the Additional Protocol.
            (6) IAEA.--The term ``IAEA'' means the International Atomic 
        Energy Agency.
            (7) Judge of the united states.--The term ``judge of the 
        United States'' means a United States district judge, or a 
        United States magistrate judge appointed under the authority of 
        chapter 43 of title 28, United States Code.
            (8) Location.--The term ``location'' means any geographic 
        point or area declared or identified by the United States or 
        specified by the International Atomic Energy Agency.
            (9) Nuclear non-proliferation treaty.--The term ``Nuclear 
        Non-Proliferation Treaty'' means the Treaty on the Non-
        Proliferation of Nuclear Weapons, done at Washington, London, 
        and Moscow July 1, 1968, and entered into force March 5, 1970 
        (21 UST 483).
            (10) Nuclear-weapon state party and non-nuclear-weapon 
        state party.--The terms ``nuclear-weapon State Party'' and 
        ``non-nuclear-weapon State Party'' have the meanings given such 
        terms in the Nuclear Non-Proliferation Treaty.
            (11) Person.--The term ``person'', except as otherwise 
        provided, means any individual, corporation, partnership, firm, 
        association, trust, estate, public or private institution, any 
        State or any political subdivision thereof, or any political 
        entity within a State, any foreign government or nation or any 
        agency, instrumentality or political subdivision of any such 
        government or nation, or other entity located in the United 
        States.
            (12) Site.--The term ``site'' has the meaning set forth in 
        Article 18b. of the Additional Protocol.
            (13) United states.--The term ``United States'', when used 
        as a geographic reference, means the several States of the 
        United States, the District of Columbia, and the commonwealths, 
        territories, and possessions of the United States and includes 
        all places under the jurisdiction or control of the United 
        States, including--
                    (A) the territorial sea and the overlying airspace;
                    (B) any civil aircraft of the United States or 
                public aircraft, as such terms are defined in 
                paragraphs (17) and (41), respectively, of section 
                40102(a) of title 49, United States Code; and
                    (C) any vessel of the United States, as such term 
                is defined in section 3(b) of the Maritime Drug Law 
                Enforcement Act (46 U.S.C. App. 1903(b)).
            (14) Wide-area environmental sampling.--The term ``wide-
        area environmental sampling'' has the meaning set forth in 
        Article 18g. of the Additional Protocol.

SEC. 203. SEVERABILITY.

    If any provision of this title, or the application of such 
provision to any person or circumstance, is held invalid, the remainder 
of this title, or the application of such provision to persons or 
circumstances other than those as to which it is held invalid, shall 
not be affected thereby.

                     Subtitle A--General Provisions

SEC. 211. AUTHORITY.

    (a) In General.--The President is authorized to implement and carry 
out the provisions of this title and the Additional Protocol and shall 
designate through Executive order which executive agency or agencies of 
the United States, which may include but are not limited to the 
Department of State, the Department of Defense, the Department of 
Justice, the Department of Commerce, the Department of Energy, and the 
Nuclear Regulatory Commission, shall issue or amend and enforce 
regulations in order to implement this title and the provisions of the 
Additional Protocol.
    (b) Included Authority.--For any executive agency designated under 
subsection (a) that does not currently possess the authority to conduct 
site vulnerability assessments and related activities, the authority 
provided in subsection (a) includes such authority.
    (c) Exception.--The authority described in subsection (b) does not 
supersede or otherwise modify any existing authority of any Federal 
department or agency already having such authority.

                    Subtitle B--Complementary Access

SEC. 221. REQUIREMENT FOR AUTHORITY TO CONDUCT COMPLEMENTARY ACCESS.

    (a) Prohibition.--No complementary access to any location in the 
United States shall take place pursuant to the Additional Protocol 
without the authorization of the United States Government in accordance 
with the requirements of this title.
    (b) Authority.--
            (1) In general.--Complementary access to any location in 
        the United States subject to access under the Additional 
        Protocol is authorized in accordance with this title.
            (2) United states representatives.--
                    (A) Restrictions.--In the event of complementary 
                access to a privately owned or operated location, no 
                employee of the Environmental Protection Agency or of 
                the Mine Safety and Health Administration or the 
                Occupational Safety and Health Administration of the 
                Department of Labor may participate in the access.
                    (B) Number.--The number of designated United States 
                representatives accompanying IAEA inspectors shall be 
                kept to the minimum necessary.

SEC. 222. PROCEDURES FOR COMPLEMENTARY ACCESS.

    (a) In General.--Each instance of complementary access to a 
location in the United States under the Additional Protocol shall be 
conducted in accordance with this subtitle.
    (b) Notice.--
            (1) In general.--Complementary access referred to in 
        subsection (a) may occur only upon the issuance of an actual 
        written notice by the United States Government to the owner, 
        operator, occupant, or agent in charge of the location to be 
        subject to complementary access.
            (2) Time of notification.--The notice under paragraph (1) 
        shall be submitted to such owner, operator, occupant, or agent 
        as soon as possible after the United States Government has 
        received notification that the IAEA seeks complementary access. 
        Notices may be posted prominently at the location if the United 
        States Government is unable to provide actual written notice to 
        such owner, operator, occupant, or agent.
            (3) Content of notice.--
                    (A) In general.--The notice required by paragraph 
                (1) shall specify--
                            (i) the purpose for the complementary 
                        access;
                            (ii) the basis for the selection of the 
                        facility, site, or other location for the 
                        complementary access sought;
                            (iii) the activities that will be carried 
                        out during the complementary access;
                            (iv) the time and date that the 
                        complementary access is expected to begin, and 
                        the anticipated period covered by the 
                        complementary access; and
                            (v) the names and titles of the inspectors.
            (4) Separate notices required.--A separate notice shall be 
        provided each time that complementary access is sought by the 
        IAEA.
    (c) Credentials.--The complementary access team of the IAEA and 
representatives or designees of the United States Government shall 
display appropriate identifying credentials to the owner, operator, 
occupant, or agent in charge of the location before gaining entry in 
connection with complementary access.
    (d) Scope.--
            (1) In general.--Except as provided in a warrant issued 
        under section 223, and subject to the United States 
        Government's rights under the Additional Protocol to limit 
        complementary access, complementary access to a location 
        pursuant to this title may extend to all activities 
        specifically permitted for such locations under Article 6 of 
        the Additional Protocol.
            (2) Exception.--Unless required by the Additional Protocol, 
        no inspection under this title shall extend to--
                    (A) financial data (other than production data);
                    (B) sales and marketing data (other than shipment 
                data);
                    (C) pricing data;
                    (D) personnel data;
                    (E) patent data;
                    (F) data maintained for compliance with 
                environmental or occupational health and safety 
                regulations; or
                    (G) research data.
    (e) Environment, Health, Safety, and Security.--In carrying out 
their activities, members of the IAEA complementary access team and 
representatives or designees of the United States Government shall 
observe applicable environmental, health, safety, and security 
regulations established at the location subject to complementary 
access, including those for protection of controlled environments 
within a facility and for personal safety.

SEC. 223. CONSENTS, WARRANTS, AND COMPLEMENTARY ACCESS.

    (a) In General.--
            (1) Procedure.--
                    (A) Consent.--Except as provided in paragraph (2), 
                an appropriate official of the United States Government 
                shall seek or have the consent of the owner, operator, 
                occupant, or agent in charge of a location prior to 
                entering that location in connection with complementary 
                access pursuant to sections 221 and 222. The owner, 
                operator, occupant, or agent in charge of the location 
                may withhold consent for any reason or no reason.
                    (B) Administrative search warrant.--In the absence 
                of consent, the United States Government may seek an 
                administrative search warrant from a judge of the 
                United States under subsection (b). Proceedings 
                regarding the issuance of an administrative search 
                warrant shall be conducted ex parte, unless otherwise 
                requested by the United States Government.
            (2) Expedited access.--For purposes of obtaining access to 
        a location pursuant to Article 4b.(ii) of the Additional 
        Protocol in order to satisfy United States obligations under 
        the Additional Protocol when notice of two hours or less is 
        required, the United States Government may gain entry to such 
        location in connection with complementary access, to the extent 
        such access is consistent with the Fourth Amendment to the 
        United States Constitution, without obtaining either a warrant 
        or consent.
    (b) Administrative Search Warrants for Complementary Access.--
            (1) Obtaining administrative search warrants.--For 
        complementary access conducted in the United States pursuant to 
        the Additional Protocol, and for which the acquisition of a 
        warrant is required, the United States Government shall first 
        obtain an administrative search warrant from a judge of the 
        United States. The United States Government shall provide to 
        such judge all appropriate information regarding the basis for 
        the selection of the facility, site, or other location to which 
        complementary access is sought.
            (2) Content of affidavits for administrative search 
        warrants.--A judge of the United States shall promptly issue an 
        administrative search warrant authorizing the requested 
        complementary access upon an affidavit submitted by the United 
        States Government--
                    (A) stating that the Additional Protocol is in 
                force;
                    (B) stating that the designated facility, site, or 
                other location is subject to complementary access under 
                the Additional Protocol;
                    (C) stating that the purpose of the complementary 
                access is to verify the correctness and completeness of 
                information declared by the United States Government 
                pursuant to Article 2 of the Additional Protocol;
                    (D) stating that the requested complementary access 
                is in accordance with Article 4 of the Additional 
                Protocol;
                    (E) containing assurances that the scope of the 
                IAEA's complementary access, as well as what it may 
                collect, shall be limited to the access provided for in 
                Article 6 of the Additional Protocol;
                    (F) listing the items, documents, and areas to be 
                searched and seized;
                    (G) stating the earliest commencement and the 
                anticipated duration of the complementary access 
                period, as well as the expected times of day during 
                which such complementary access will take place; and
                    (H) stating that the location to which entry in 
                connection with complementary access is sought was 
                selected either--
                            (i) because there is probable cause, on the 
                        basis of specific evidence, to believe that 
                        information required to be reported regarding a 
                        location pursuant to regulations promulgated 
                        under this title is incorrect or incomplete, 
                        and that the location to be accessed contains 
                        evidence regarding that violation; or
                            (ii) pursuant to a reasonable general 
                        administrative plan based upon specific neutral 
                        criteria.
            (3) Content of warrants.--A warrant issued under paragraph 
        (2) shall specify the same matters required of an affidavit 
        under that paragraph. In addition, each warrant shall contain 
        the identities of the representatives of the IAEA on the 
        complementary access team and the identities of the 
        representatives or designees of the United States Government 
        required to display identifying credentials under section 
        222(c).

SEC. 224. PROHIBITED ACTS RELATING TO COMPLEMENTARY ACCESS.

    It shall be unlawful for any person willfully to fail or refuse to 
permit, or to disrupt, delay, or otherwise impede, a complementary 
access authorized by this subtitle or an entry in connection with such 
access.

               Subtitle C--Confidentiality of Information

SEC. 231. PROTECTION OF CONFIDENTIALITY OF INFORMATION.

    Information reported to, or otherwise acquired by, the United 
States Government under this title or under the Additional Protocol 
shall be exempt from disclosure under sections 552 of title 5, United 
States Code.

                        Subtitle D--Enforcement

SEC. 241. RECORDKEEPING VIOLATIONS.

    It shall be unlawful for any person willfully to fail or refuse--
            (1) to establish or maintain any record required by any 
        regulation prescribed under this title;
            (2) to submit any report, notice, or other information to 
        the United States Government in accordance with any regulation 
        prescribed under this title; or
            (3) to permit access to or copying of any record by the 
        United States Government in accordance with any regulation 
        prescribed under this title.

SEC. 242. PENALTIES.

    (a) Civil.--
            (1) Penalty amounts.--Any person that is determined, in 
        accordance with paragraph (2), to have violated section 224 or 
        section 241 shall be required by order to pay a civil penalty 
        in an amount not to exceed $25,000 for each violation. For the 
        purposes of this paragraph, each day during which a violation 
        of section 224 continues shall constitute a separate violation 
        of that section.
            (2) Notice and hearing.--
                    (A) In general.--Before imposing a penalty against 
                a person under paragraph (1), the head of an executive 
                agency designated under section 211(a) shall provide 
                the person with notice of the order. If, within 15 days 
                after receiving the notice, the person requests a 
                hearing, the head of the designated executive agency 
                shall initiate a hearing on the violation.
                    (B) Conduct of hearing.--Any hearing so requested 
                shall be conducted before an administrative judge. The 
                hearing shall be conducted in accordance with the 
                requirements of section 554 of title 5, United States 
                Code. If no hearing is so requested, the order imposed 
                by the head of the designated agency shall constitute a 
                final agency action.
                    (C) Issuance of orders.--If the administrative 
                judge determines, upon the preponderance of the 
                evidence received, that a person named in the complaint 
                has violated section 224 or section 241, the 
                administrative judge shall state his findings of fact 
                and conclusions of law, and issue and serve on such 
                person an order described in paragraph (1).
                    (D) Factors for determination of penalty amounts.--
                In determining the amount of any civil penalty, the 
                administrative judge or the head of the designated 
                agency shall take into account the nature, 
                circumstances, extent, and gravity of the violation or 
                violations and, with respect to the violator, the 
                ability to pay, effect on ability to continue to do 
                business, any history of such violations, the degree of 
                culpability, the existence of an internal compliance 
                program, and such other matters as justice may require.
                    (E) Content of notice.--For the purposes of this 
                paragraph, notice shall be in writing and shall be 
                verifiably served upon the person or persons subject to 
                an order described in paragraph (1). In addition, the 
                notice shall--
                            (i) set forth the time, date, and specific 
                        nature of the alleged violation or violations; 
                        and
                            (ii) specify the administrative and 
                        judicial remedies available to the person or 
                        persons subject to the order, including the 
                        availability of a hearing and subsequent 
                        appeal.
            (3) Administrative appellate review.--The decision and 
        order of an administrative judge shall be the recommended 
        decision and order and shall be referred to the head of the 
        designated executive agency for final decision and order. If, 
        within 60 days, the head of the designated executive agency 
        does not modify or vacate the decision and order, it shall 
        become a final agency action under this subsection.
            (4) Judicial review.--A person adversely affected by a 
        final order may, within 30 days after the date the final order 
        is issued, file a petition in the Court of Appeals for the 
        District of Columbia Circuit or in the Court of Appeals for the 
        district in which the violation occurred.
            (5) Enforcement of final orders.--
                    (A) In general.--If a person fails to comply with a 
                final order issued against such person under this 
                subsection and--
                            (i) the person has not filed a petition for 
                        judicial review of the order in accordance with 
                        paragraph (4), or
                            (ii) a court in an action brought under 
                        paragraph (4) has entered a final judgment in 
                        favor of the designated executive agency,
                the head of the designated executive agency shall 
                commence a civil action to seek compliance with the 
                final order in any appropriate district court of the 
                United States.
                    (B) No review.--In any such civil action, the 
                validity and appropriateness of the final order shall 
                not be subject to review.
                    (C) Interest.--Payment of penalties assessed in a 
                final order under this section shall include interest 
                at currently prevailing rates calculated from the date 
                of expiration of the 60-day period referred to in 
                paragraph (3) or the date of such final order, as the 
                case may be.
    (b) Criminal.--Any person who violates section 224 or section 241 
may, in addition to or in lieu of any civil penalty which may be 
imposed under subsection (a) for such violation, be fined under title 
18, United States Code, imprisoned for not more than five years, or 
both.

SEC. 243. SPECIFIC ENFORCEMENT.

    (a) Jurisdiction.--The district courts of the United States shall 
have jurisdiction over civil actions brought by the head of an 
executive agency designated under section 211(a)--
            (1) to restrain any conduct in violation of section 224 or 
        section 241; or
            (2) to compel the taking of any action required by or under 
        this title or the Additional Protocol.
    (b) Civil Actions.--
            (1) In general.--A civil action described in subsection (a) 
        may be brought--
                    (A) in the case of a civil action described in 
                paragraph (1) of such subsection, in the United States 
                district court for the judicial district in which any 
                act, omission, or transaction constituting a violation 
                of section 224 or section 241 occurred or in which the 
                defendant is found or transacts business; or
                    (B) in the case of a civil action described in 
                paragraph (2) of such subsection, in the United States 
                district court for the judicial district in which the 
                defendant is found or transacts business.
            (2) Service of process.--In any such civil action, process 
        shall be served on a defendant wherever the defendant may 
        reside or may be found.

                   Subtitle E--Environmental Sampling

SEC. 251. NOTIFICATION TO CONGRESS OF IAEA BOARD APPROVAL OF WIDE-AREA 
              ENVIRONMENTAL SAMPLING.

    (a) In General.--Not later than 30 days after the date on which the 
Board of Governors of the IAEA approves wide-area environmental 
sampling for use as a safeguards verification tool, the President shall 
notify the appropriate congressional committees.
    (b) Content.--The notification under subsection (a) shall contain--
            (1) a description of the specific methods and sampling 
        techniques approved by the Board of Governors that are to be 
        employed for purposes of wide-area sampling; and
            (2) a statement as to whether or not such sampling may be 
        conducted in the United States under the Additional Protocol.

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 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 that--
            (1) 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
            (2) 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.

              Subtitle F--Authorization of Appropriations

SEC. 261. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as may be 
necessary to carry out this title.
                                                       Calendar No. 527

109th CONGRESS

  2d Session

                                S. 3709

                          [Report No. 109-288]

_______________________________________________________________________

                                 A BILL

 To exempt from certain requirements of the Atomic Energy Act of 1954 
 United States exports of nuclear materials, equipment, and technology 
   to India, and to implement the United States Additional Protocol.

_______________________________________________________________________

                             July 20, 2006

                 Read twice and placed on the calendar`