§ 8003. Waiver authority and congressional approval
(a)
In general
If the President makes the determination described in subsection (b), the President may—
(b)
Determination by the President
The determination referred to in subsection (a) is a determination by the President that the following actions have occurred:
(1)
India has provided the United States and the IAEA with a credible plan to separate civil and military nuclear facilities, materials, and programs, and has filed a declaration regarding its civil facilities and materials with the IAEA.
(2)
India and the IAEA have concluded all legal steps required prior to signature by the parties of an agreement requiring the application of IAEA safeguards in perpetuity in accordance with IAEA standards, principles, and practices (including IAEA Board of Governors Document GOV/1621 (1973)) to India’s civil nuclear facilities, materials, and programs as declared in the plan described in paragraph (1), including materials used in or produced through the use of India’s civil nuclear facilities.
(3)
India and the IAEA are making substantial progress toward concluding an Additional Protocol consistent with IAEA principles, practices, and policies that would apply to India’s civil nuclear program.
(4)
India is working actively with the United States for the early conclusion of a multilateral treaty on the cessation of the production of fissile materials for use in nuclear weapons or other nuclear explosive devices.
(5)
India is working with and supporting United States and international efforts to prevent the spread of enrichment and reprocessing technology to any state that does not already possess full-scale, functioning enrichment or reprocessing plants.
(6)
India is taking the necessary steps to secure nuclear and other sensitive materials and technology, including through—
(A)
the enactment and effective enforcement of comprehensive export control legislation and regulations;
(c)
Submission to Congress
(1)
In general
The President shall submit to the appropriate congressional committees the determination made pursuant to subsection (b), together with a report detailing the basis for the determination.
(2)
Information to be included
To the fullest extent available to the United States, the report referred to in paragraph (1) shall include the following information:
(A)
A summary of the plan provided by India to the United States and the IAEA to separate India’s civil and military nuclear facilities, materials, and programs, and the declaration made by India to the IAEA identifying India’s civil facilities to be placed under IAEA safeguards, including an analysis of the credibility of such plan and declaration, together with copies of the plan and declaration.
(B)
A summary of the agreement that has been entered into between India and the IAEA requiring the application of safeguards in accordance with IAEA practices to India’s civil nuclear facilities as declared in the plan described in subparagraph (A), together with a copy of the agreement, and a description of the progress toward its full implementation.
(C)
A summary of the progress made toward conclusion and implementation of an Additional Protocol between India and the IAEA, including a description of the scope of such Additional Protocol.
(D)
A description of the steps that India is taking to work with the United States for the conclusion of a multilateral treaty banning the production of fissile material for nuclear weapons, including a description of the steps that the United States has taken and will take to encourage India to identify and declare a date by which India would be willing to stop production of fissile material for nuclear weapons unilaterally or pursuant to a multilateral moratorium or treaty.
(E)
A description of the steps India is taking to prevent the spread of nuclear-related technology, including enrichment and reprocessing technology or materials that can be used to acquire a nuclear weapons capability, as well as the support that India is providing to the United States to further United States objectives to restrict the spread of such technology.
(F)
A description of the steps that India is taking to secure materials and technology applicable for the development, acquisition, or manufacture of weapons of mass destruction and the means to deliver such weapons through the application of comprehensive export control legislation and regulations, and through harmonization with and adherence to MTCR, NSG, Australia Group, and Wassenaar Arrangement guidelines, compliance with United Nations Security Council Resolution 1540, and participation in the Proliferation Security Initiative.
(G)
A description and assessment of the specific measures that India has taken to fully and actively participate in United States and international efforts to dissuade, isolate, and, if necessary, sanction and contain Iran for its efforts to acquire weapons of mass destruction, including a nuclear weapons capability and the capability to enrich uranium or reprocess nuclear fuel and the means to deliver weapons of mass destruction.
(H)
A description of the decision of the NSG relating to nuclear cooperation with India, including whether nuclear cooperation by the United States under an agreement for cooperation arranged pursuant to section
2153 of title
42 is consistent with the decision, practices, and policies of the NSG.
(d)
Restrictions on nuclear transfers
(1)
In general
Pursuant to the obligations of the United States under Article I of the NPT, nothing in this chapter constitutes authority to carry out any civil nuclear cooperation between the United States and a country that is not a nuclear-weapon State Party to the NPT that would in any way assist, encourage, or induce that country to manufacture or otherwise acquire nuclear weapons or nuclear explosive devices.
(2)
NSG transfer guidelines
Notwithstanding the entry into force of an agreement for cooperation with India arranged pursuant to section
2153 of title
42 and pursuant to this chapter, 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
2153 of title
42 and pursuant to this chapter, 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
8008
(5) of this title; and
(4)
Exports, reexports, transfers, and retransfers to India related to enrichment, reprocessing, and heavy water production
(A)
In general
(i)
Nuclear Regulatory Commission
The Nuclear Regulatory Commission may only issue licenses for the export or reexport to India of any equipment, components, or materials related to the enrichment of uranium, the reprocessing of spent nuclear fuel, or the production of heavy water if the requirements of subparagraph (B) are met.
(ii)
Secretary of Energy
The Secretary of Energy may only issue authorizations for the transfer or retransfer to India of any equipment, materials, or technology related to the enrichment of uranium, the reprocessing of spent nuclear fuel, or the production of heavy water (including under the terms of a subsequent arrangement under section
2160 of title
42) 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—
(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—
(B)
Measures
The measures taken pursuant to subparagraph (A) shall include the following:
(i)
Obtaining and implementing assurances and conditions pursuant to the export licensing authorities of the Nuclear Regulatory Commission and the Department of Commerce and the authorizing authorities of the Department of Energy, including, as appropriate, conditions regarding end-use monitoring.
(ii)
A detailed system of reporting and accounting for technology transfers, including any retransfers in India, authorized by the Department of Energy pursuant to section
2077
(b) of title
42. Such system shall be capable of providing assurances that—
(I)
the identified recipients of the nuclear technology are authorized to receive the nuclear technology;
(iii)
In the event the IAEA is unable to implement safeguards as required by an agreement for cooperation arranged pursuant to section
2153 of title
42, appropriate assurance that arrangements will be put in place expeditiously that are consistent with the requirements of section
2153
(a)(1) of title
42 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.
(f)
Sunset
The authority provided under subsection (a)(1) to exempt an agreement shall terminate upon October 8, 2008.
(g)
Reporting to Congress
(1)
Information on nuclear activities of India
The President shall keep the appropriate congressional committees fully and currently informed of the facts and implications of any significant nuclear activities of India, including—
(A)
any material noncompliance on the part of the Government of India with—
(i)
the nonproliferation commitments undertaken in the Joint Statement of July 18, 2005, between the President of the United States and the Prime Minister of India;
(ii)
the separation plan presented in the national parliament of India on March 7, 2006, and in greater detail on May 11, 2006;
(v)
an agreement for cooperation between the Government of India and the United States Government arranged pursuant to section
2153 of title
42 or any subsequent arrangement under section
2160 of title
42;
(B)
any material inconsistencies between the content or timeliness of notifications by the Government of India pursuant to paragraph 14(a) of the Safeguards Agreement and the facilities and schedule described in paragraph (14) of the separation plan presented in the national parliament of India on May 11, 2006, taking into account the later initiation of safeguards than was anticipated in the separation plan;
(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
2153 of title
42 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,[1] 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)—
(III)
the name of the site, facility, or location in India to which the export or reexport was made;
(C)
a description of any significant nuclear commerce between India and other countries, including any such trade that—
(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
(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
(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;
(G)
a detailed description of—
(i)
United States efforts to promote national or regional progress by India and Pakistan in disclosing, securing, limiting, and reducing their fissile material stockpiles, including stockpiles for military purposes, pending creation of a worldwide fissile material cut-off regime, including the institution of a Fissile Material Cut-off Treaty;
(H)
an estimate of—
(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—
(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; and
(M)
with respect to the United States-India Agreement for Cooperation on Peaceful Uses of Nuclear Energy (hereinafter in this subparagraph referred to as the “Agreement”) approved under section 101(a) of the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act—
(i)
a listing of—
(ii)
a description of—
(I)
any agreed safeguards or any other form of verification for by-product material decided by mutual agreement pursuant to the terms of Article 1(A) of the Agreement;
(II)
research and development undertaken in such areas as may be agreed between the United States and India as detailed in Article 2(2)(a.) of the Agreement;
(IV)
any United States efforts to help India develop a strategic reserve of nuclear fuel as called for in Article 2(2)(e.) of the Agreement;
[1] So in original. Probably should be “Regulations,”.