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(5) the term "country of the Eastern Group of States Parties" 343 means a country that is listed in paragraph 1(A) of article II of the CFE Treaty within the group of States Parties that signed the Treaty of Warsaw of 1955 or a successor state to such a country.3 344

CHAPTER 10-NUCLEAR NONPROLIFERATION

CONTROLS 345

SEC. 101.346 NUCLEAR ENRICHMENT TRANSFERS.

(a) PROHIBITIONS; SAFEGUARDS AND MANAGEMENT.-Except as provided in subsection (b) of this section, no funds made available to carry out the Foreign Assistance Act of 1961 or this Act may be used for the purpose of providing economic assistance (including assistance under chapter 4 of part II of the Foreign Assistance Act of 1961), providing military assistance or grant military education and training, providing assistance under chapter 6 of part II of that Act, or extending military credits or making guarantees, to any country which the President determines delivers nuclear enrichment equipment, materials, or technology to any other country on or after August 4, 1977, or receives such equipment, materials, or technology from any other country on or after August 4, 1977, unless before such delivery

(1) the supplying country and receiving country have reached agreement to place all such equipment, materials, or technology, upon delivery, under multilateral auspices and management when available; and

(2) the recipient country has entered into an agreement with the International Atomic Energy Agency to place all such equipment, materials, technology, and all nuclear fuel and facilities in such country under the safeguards system of such Agency.

(b) CERTIFICATION BY PRESIDENT OF NECESSITY OF CONTINUED ASSISTANCE; DISAPPROVAL BY CONGRESS. (1) Notwithstanding subsection (a) of this section, the President may furnish assistance which would otherwise be prohibited under such subsection if he determines and certifies in writing to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate that

343 Sec. 402(2)(A) of the FRIENDSHIP Act (Public Law 103-199; 107 Stat. 2317) struck out "Warsaw Pact country" and inserted in lieu thereof "country of the Eastern Group of States Parties".

344 Sec. 402(2)(B) of the FRIENDSHIP Act (Public Law 103-199; 107 Stat. 2317) inserted "or a successor state to such a country".

345 Sec. 826(a) of the Nuclear Proliferation Prevention Act of 1994 (title VIII of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995; Public Law 103-236; 108 Stat. 515) added chapter 10, sections 101, 102, and 103.

346 22 U.S.C. 2799aa. See determinations set out in footnotes in sec. 102(b)(1). Popularly referred to as the Symington amendment. Similar language was originally enacted as sec. 669 of the Foreign Assistance Act of 1961, and codified at 22 U.S.C. 2429, by sec. 305 of Public Law 94-329. Sec. 669 was amended and restated by sec. 12 of the International Security Assistance Act of 1977 (Public Law 95-92; 91 Stat. 620), further amended by secs. 10(bx4) and 12 of the International Security Assistance Act of 1978 (Public Law 95-384; 92 Stat. 735, 737); and further amended by sec. 737(b) of the International Security and Development Cooperation Act of 1981 (Public Law 97-113; 95 Stat. 1562). Secs. 669 and 670 were repealed by sec. 826(b) of the Nuclear Proliferation Prevention Act of 1994 (title VIII of the Foreign Relations Authorization Act; Public Law 103-236; 108 Stat. 519), after section 826(a) of that Act enacted two new sections into the Arms Export Control Act (secs. 101 and 102; at 22 U.S.C. 2799aa and 2799aa-1) to state nuclear nonproliferation controls.

(A) the termination of such assistance would have a serious adverse effect on vital United States interests; and

(B) he has received reliable assurances that the country in question will not acquire or develop nuclear weapons or assist other nations in doing so.

Such certification shall set forth the reasons supporting such determination in each particular case.

(2)(A) A certification under paragraph (1) of this subsection shall take effect on the date on which the certification is received by the Congress. However, if, within thirty calendar days after receiving this certification, the Congress enacts a joint resolution stating in substance that the Congress disapproves the furnishing of assistance pursuant to the certification, then upon the enactment of that resolution the certification shall cease to be effective and all deliveries of assistance furnished under the authority of that certification shall be suspended immediately.

(B) Any joint resolution under this paragraph shall be considered in the Senate in accordance with the provisions of section 601(b) of the International Security Assistance and Arms Export Control Act of 1976.

SEC. 102.345, 347 NUCLEAR REPROCESSING TRANSFERS, ILLEGAL EXPORTS FOR NUCLEAR EXPLOSIVE DEVICES, TRANSFERS OF NUCLEAR EXPLOSIVE DEVICES, AND NUCLEAR DETONATIONS.

(a) PROHIBITIONS ON ASSISTANCE TO COUNTRIES INVOLVED IN TRANSFER OF NUCLEAR REPROCESSING EQUIPMENT, MATERIALS, OR TECHNOLOGY; EXCEPTIONS; PROCEDURES APPLICABLE.-(1) Except as provided in paragraph (2) of this subsection, no funds made available to carry out the Foreign Assistance Act of 1961 or this Act may be used for the purpose of providing_economic_assistance (including assistance under chapter 4 of part II of the Foreign Assistance Act of 1961), providing military assistance or grant military education and training, providing assistance under chapter 6 of part II of that Act, or extending military credits or making guarantees, to any country which the President determines

(A) delivers nuclear reprocessing equipment, materials, or technology to any other country on or after August 4, 1977, or

347 22 U.S.C. 2799aa-1. Popularly referred to as the Glenn amendment. Similar language was originally enacted as sec. 670 of the Foreign Assistance Act of 1961, and codified at 22 U.S.C. 2429a, by sec. 12 of Public Law 95-92 (91 Stat. 620); amended and restated by sec. 737(c) of the International Security and Development Cooperation Act of 1981 (Public Law 97-113; 95 Stat. 1562); and further amended by sec. 1204 of the International Security and Development Cooperation Act of 1985 (Public Law 99-83; 99 Stat. 277). Sec. 670 (and sec. 669) were repealed by sec. 826(b) of the Nuclear Proliferation Prevention Act of 1994 (title VIII of the Foreign Relations Authorization Act; Public Law 103-236; 108 Stat. 519), after section 826(a) of that Act enacted two new sections into the Arms Export Control Act (secs. 101 and 102; at 22 U.S.C. 2799aa and 2799aa-1) to state nuclear nonproliferation controls.

Title I of the Department of the Interior and Related Agencies Appropriations Act, 2002 (Public Law 107-63; 115 Stat. 421), provided the following:

"MULTINATIONAL SPECIES CONSERVATION FUND

"For expenses necessary to carry out the African Elephant Conservation Act (16 U.S.C. 42014203, 4211-4213, 4221-4225, 4241-4245, and 1538), the Asian Elephant Conservation Act of 1997 (Public Law 105-96; 16 U.S.C. 4261-4266), the Rhinoceros and Tiger Conservation Act of 1994 (16 U.S.C. 5301-5306), and the Great Ape Conservation Act of 2000 (16 U.S.C. 6301), $4,000,000, to remain available until expended: Provided, That funds made available under this Act, Public Law 106-291, and Public Law 106-554 and hereafter in annual appropriations Acts for rhinoceros, tiger, Asian elephant, and great ape conservation programs are exempt from any sanctions imposed against any country under section 102 of the Arms Export Control Act (22 U.S.C. 2799aa-1).".

receives such equipment, materials, or technology from any other country on or after August 4, 1977 (except for the transfer of reprocessing technology associated with the investigation, under international evaluation programs in which the United States participates, of technologies which are alternatives to pure plutonium reprocessing), or

(B) is a non-nuclear-weapon state which, on or after August 8, 1985, exports illegally (or attempts to export illegally) from the United States any material, equipment, or technology which would contribute significantly to the ability of such country to manufacture a nuclear explosive device, if the President determines that the material, equipment, or technology was to be used by such country in the manufacture of a nuclear explosive device.

For purposes of clause (B), an export (or attempted export) by a person who is an agent of, or is otherwise acting on behalf of or in the interests of, a country shall be considered to be an export (or attempted export) by that country.

(2) Notwithstanding paragraph (1) of this subsection, the President in any fiscal year may furnish assistance which would otherwise be prohibited under that paragraph if he determines and certifies in writing during that fiscal year to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate that the termination of such assistance would be seriously prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security. The President shall transmit with such certification a statement setting forth the specific reasons therefor.

(3)(A) A certification under paragraph (2) of this subsection shall take effect on the date on which the certification is received by the Congress. However, if, within 30 calendar days after receiving this certification, the Congress enacts a joint resolution stating in substance that the Congress disapproves the furnishing of assistance pursuant to the certification, then upon the enactment of that resolution the certification shall cease to be effective and all deliveries of assistance furnished under the authority of that certification shall be suspended immediately.

(b) PROHIBITIONS ON ASSISTANCE TO COUNTRIES INVOLVED IN TRANSFER OR USE OF NUCLEAR EXPLOSIVE DEVICES; EXCEPTIONS; PROCEDURES APPLICABLE. (1) 348 Except as provided in para

348 On May 13, 1998, the President determined "that India, a non-nuclear-weapon state, detonated a nuclear explosive device on May 11, 1998. The relevant agencies and instrumentalities of the United States Government are hereby directed to take the necessary actions to impose the sanctions described in section 102(b)(2) * * *” (Presidential Determination 98-22 of May 13, 1998; 63 F.R. 27665). In support of that determination, the Department of State issued Public Notice 2825 (63 F.R. 27781; May 15, 1998), to revoke all "licenses and other approvals to export or otherwise transfer defense articles and defense services from the United States to India, or transfer U.S. origin defense articles and defense services from a foreign destination to India, or temporarily import defense articles from India pursuant to Section 38 of the Arms Export Control Act

On May 30, 1998, the President determined "that Pakistan, a non-nuclear-weapon state, detonated a nuclear explosive device on May 28, 1998. The relevant agencies and instrumentalities of the United States Government are hereby directed to take the necessary actions to impose

the sanctions described in section 102(b)(2) * *" (Presidential Determination 98-25 of May 30, 1998; 63 F.R. 31881). In support of that determination, the Department of State issued Public Notice 2835 (63 F.R. 33122; May 30, 1998), to revoke all "licenses and other approvals to export or otherwise transfer defense articles and defense services from the United States to Pakistan, or transfer U.S. origin defense articles and defense services from a foreign destination to Pakistan, or temporarily import defense articles from Pakistan pursuant to Section 38 of the Arms Export Control Act *

The India-Pakistan Relief Act, enacted as title IX of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 1999 (division A, sec. 101(a) of Public Law 105-277; 112 Stat. 2681), however, authorized the President to waive the application of sanctions against India and Pakistan for one year. The President issued such a determination as referred to in sec. 902 of the India-Pakistan Relief Act on December 1, 1998, that provided: "I hereby waive until October 21, 1999, the sanctions and prohibitions contained in section 101 and 102 of the Arms Export Control Act, section 620E(e) of the Foreign Assistance Act of 1961, and section 2(b)(4)of the Export-Import Bank Act of 1945, insofar as such sanctions and prohibitions would otherwise apply to activities of the Export-Import Bank, the Overseas Private Investment Corporation, and the Trade and Development Agency with respect to Pakistan and India; assistance to Pakistan and India under the 'International Military Education and Training' program; the making of any loan or financial or technical assistance to Pakistan by any international financial institution in support of the assistance program that Pakistan is negotiating with the International Monetary Fund." (Presidential Determination No. 99-7; Weekly Compilation of Presidential Documents, vol. 34, no. 49, December 7, 1998, p. 2402).

The President extended the waiver on September 30, 1999 (Presidential Determination No. 99-44; 64 F.R. 54503).

In 1999, the President exercised authority pursuant to the India-Pakistan Relief Act of 1998 in Presidential Determination No. 99-38 of September 21, 1999 (64 F.R. 53573); Presidential Determination No. 99-44 of September 30, 1999 (64 F.R. 54503); and Presidential Determination No. 2000-4 of October 27, 1999 (64 F.R. 60649).

Title IX of the Department of Defense Appropriations Act, 2000 (Public Law 106-79; 113 Stat. 1283) repealed the India-Pakistan Relief Act, effective October 21, 1999. In its place, title IX of that Act provided the following:

"TITLE IX

"WAIVER OF CERTAIN SANCTIONS AGAINST INDIA AND PAKISTAN

"SEC. 9001. (a) WAIVER AUTHORITY.-Except as provided in subsections (b) and (c) of this section, the President may waive, with respect to India and Pakistan, the application of any sanction contained in section 101 or 102 of the Arms Export Control Act (22 U.S.C. 2799aa or 22 U.S.C. 2799aa-1), section 2(b)(4) of the Export Import Bank Act of 1945 (12 U.S.C. 635(b)(4)), or section 620E(e) of the Foreign Assistance Act of 1961, as amended, (22 U.S.C. 2375(e)).

"(b) EXCEPTION.-The authority to waive the application of a sanction or prohibition (or portion thereof) under subsection (a) shall not apply with respect to a sanction or prohibition contained in subparagraph (B), (C), or (G) of section 102(b)(2) of the Arms Export Control Act, unless the President determines, and so certifies to the Congress, that the application of the restriction would not be in the national security interests of the United States.

"(c) TERMINATAION OF WAIVER.-The President may not exercise the authority of subsection (a), and any waiver previously issued under subsection (a) shall cease to apply, with respect to India or Pakistan, if that country detonates a nuclear explosive device after the date of the enactment of this Act or otherwise takes such action which would cause the President to report pursuant to section 102(b)(1) of the Arms Export Control Act.

"(d) TARGETED SANCTIONS.

"(1) SENSE OF THE CONGRESS.

"(A) it is the sense of the Congress that the broad application of export controls to nearly 300 Indian and Pakistani entities is inconsistent with the specific national security interests of the United States and that this control list requires refinement; and "(B) export controls should be applied only to those Indian and Pakistani entities that make direct and material contributions to weapons of mass destruction and missile programs and only to those items that can contribute to such programs.

"(2) REPORTING REQUIREMENT.-Not later than 60 days after the date of the enactment of this Act, the President shall submit both a classified and unclassified report to the appropriate congressional committees listing those Indian and Pakistani entities whose activities contribute to missile programs or weapons of mass destruction programs.

"(e) CONGRESSIONAL NOTIFICATION.-The issuance of a license for export of a defense article, defense service, or technology under the authority of this section shall be subject to the same requirements as are applicable to the export of items described in section 36(c) of the Arms Export Control Act (22 U.S.C. 2776(c)), including the transmittal of information and the application of congressional review procedures.

"(f) REPEAL.-The India-Pakistan Relief Act (title IX of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 1999, as contained in section 101(a) of Public Law 105-277) is repealed effective October 21, 1999.".

The President waived the application of sanctions under the new law on October 27, 1999 (Presidential Determination No. 2000-4; 64 F.R. 60649), to the following extent:

"(1) with respect to India, insofar as such sanctions would otherwise apply to activities of the Export-Import Bank, the Overseas Private Investment Corporation, and the Trade and Develop

Continued

graphs (4), (5), and (6), in the event that the President determines that any country, after the effective date of part B of the Nuclear Proliferation Prevention Act of 1994

(A) transfers to a non-nuclear-weapon state a nuclear explosive device,

(B) is a non-nuclear-weapon state and either—

(i) receives a nuclear explosive device, or

(ii) detonates a nuclear explosive device,

(C) transfers to a non-nuclear-weapon state any design information or component which is determined by the President to be important to, and known by the transferring country to be intended by the recipient state for use in, the development or manufacture of any nuclear explosive device, or

(D) is a non-nuclear-weapon state and seeks and receives any design information or component which is determined by the President to be important to, and intended by the recipient state for use in, the development or manufacture of any nuclear explosive device,

then the President shall forthwith report in writing his determination to the Congress and shall forthwith impose the sanctions described in paragraph (2) against that country.

(2) The sanctions referred to in paragraph (1) are as follows:

(A) The United States Government shall terminate assistance to that country under the Foreign Assistance Act of 1961, except for humanitarian assistance or food or other agricultural commodities.

(B) The United States Government shall terminate

(i) sales to that country under this Act of any defense articles, defense services, or design and construction services, and

(ii) licenses for the export to that country of any item on the United States Munitions List.

(D) The United States Government shall deny to that country any credit, credit guarantees, or other financial assistance by any department, agency, or instrumentality of the United

ment Agency; assistance under the International Military Education and Training' program; the making of any loan or the providing of any credit to the Government of India by any U.S. bank; assistance to the Asian elephant Conservation Fund, the Rhinoceros and Tiger conservation Fund, and the Indo-American Environmental Leadership program; and any credit, credit guarantee, or other financial assistance provided by the Department of Agriculture to support the purchase of food or other agricultural commodity; and

"(2) with respect to Pakistan, insofar as such sanctions would otherwise apply to any credit, credit guarantee, or other financial assistance provided by the Department of Agriculture to support the purchase of food or other agricultural commodity; and the making of any loan or the providing of any credit to the Government of Pakistan by any U.S. bank." (Presidential Determination No. 2000-4; October 27, 1999; 64 F.R. 60649).

The President and executive branch agencies subsequently waived or adjusted sanctions against particular Indian and Pakistani entities: see Presidential Determination No. 2000-18 (March 18, 2000; 65 F.R. 16297); Bureau of Export Administration, 15 CFR Part 744 (March 17, 2000; 65 F.R. 14444); and Presidential Determination No. 2001-11 (January 19, 2001; 66 F.R. 8503).

On September 22, 2001, the President lifted all nuclear test-related sanctions against India and Pakistan, under the authority granted him in the Defense Appropriations Act, FY 2000 (Presidential Determination No. 2001-28; 66 F.R. 50095).

On October 27, 2001, the President signed Public Law 107-57 (115 Stat. 403), authorizing the waiver of remaining sanctions imposed against Pakistan for debt arrearage and the military overthrow of its democratically elected government. This authority remains available through fiscal year 2003.

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