Guidelines for Nuclear Transfers (Exports)

By | May 6, 2016

THE GAZETTE OF INDIA : EXTRAORDINARY [PART I—SEC. 1]

DEPARTMENT OF ATOMIC ENERGY

RESOLUTION

Mumbai, the 28th April, 2016

Subject: Guidelines for Nuclear Transfers (Exports)

No.32/02/2016-ER.—Under the provisions contained in clause (f) and (g) of Sub-Section (1) of Section 2 and Section 3 of the Atomic Energy Act, 1962 (No.33 of 1962), the Department of Atomic Energy has notified the Schedule of “Prescribed Substances, Prescribed Equipment and Technology” on 28 April, 2016. Further, to regulate the exports of these items the Department of Atomic Energy had formulated a set of “Guidelines for Nuclear Transfers (Exports)”vide No. AEA/27(1)/2005-ER dated 01st February, 2006. In supersession of the notification No. AEA/27(1)/2005-ER dated 01st February, 2006, the Central Government hereby issues a set of guidelines entitled as “Guidelines for Nuclear Transfers (Exports)” to regulate the exports / transfers of the items referred in these guidelines.

Export of prescribed substances, prescribed equipment or transfer of related technology to any country will be governed by the following guidelines and export controls shall apply to nuclear transfers to any country.

Notes:

Prescribed substance means any substance or material including any mineral which the Central Government may by notification, prescribe being a substance which in quantity or in concentration or both in excess of the limits prescribed in this behalf in that notification, is or may be used for the production or use of atomic energy or research into matters connected therewith. Prescribed substances contain source material, special fissionable material and non-nuclear materials for nuclear reactor e.g. nuclear grade graphite and heavy water and also include certain other materials (dual-use materials).

Prescribed equipment means any property which the Central Government may, by notification, prescribe, being a property which in its opinion is specially designed or adapted or which is used or intended to be used for the production or utilization of any prescribed substance or for the production or utilization of atomic energy, radioactive substances or radiation, but does not include mining, milling, laboratory and other equipment not so specially designed or adapted and not incorporated in equipment used or intended to be used for any of the purposes aforesaid. Prescribed equipment includes nuclear reactors, fuel reprocessing plants, fuel fabrication plants, uranium enrichment plants, uranium & plutonium conversion facilities, heavy water production plants and associated equipment specially designed, prepared, adapted or used or intended to be used in such plants/facilities and also includes nuclear related dual-use equipment and components.

Technology” means any information (including information embodied in software) other than information in the public domain, that is capable of being used in-

(i) the development, production or use of any goods or software;

(ii) the development of, or the carrying out of, an industrial or commercial activity or the provision of a service of any kind.

Explanation.-When technology is described wholly or partly by reference to the uses to which it (or the goods to which it relates) may be put, it shall include services which are provided or used, or which are capable of being used, in the development, production or use of such technology or goods;

Exporter may refer to the Government of India notification on the prescribed substances and prescribed equipment for details.

A. SPECIFIC GUIDELINES

1. Prohibition of export for development of nuclear explosives:

a) Export of any prescribed substance, prescribed equipment or related technology, to any country for the development of nuclear explosive device or use in a nuclear explosive device shall be prohibited.

b) Export of any prescribed substance, prescribed equipment or related technology shall not be authorized for use in nuclear explosive activity, or when there is an unacceptable risk of diversion to the development of nuclear explosive device or use in a nuclear explosive device or to acts of nuclear terrorism.

c) Transfer of the following items (prescribed substances and prescribed equipment) and related technology shall be authorized only upon formal governmental assurances from recipients explicitly excluding uses which would result in any nuclear explosive device:

i. Source material, special fissionable material, and non-nuclear material for reactors (nuclear grade graphite and heavy water).

ii. Nuclear reactors, fuel reprocessing plants, fuel fabrication plants, uranium enrichment plants, uranium & plutonium conversion facilities, heavy water production plants, tritium recovery plants and associated equipment specially designed or adapted or used or intended to be used in such plants/facilities.

(For detailed clarification on items indicated in c (i) and c (ii), exporters may refer to Government of India notification on prescribed substances, prescribed equipment and related technology).

2. Physical protection:

a. All nuclear materials and facilities referred to under paragraph 1.c (i) and 1.c (ii) should be placed under effective physical protection levels to prevent unauthorized use and handling, consistent with the relevant IAEA recommendations, in particular those set out in INFCIRC/225. The levels of physical protection to be ensured in relation to the type of materials, equipment and facilities, shall also be as per the recommendations of Government of India or as agreed upon in the international conventions, to which India is a party.

b. The implementation of measures of physical protection in the recipient country is the responsibility of the Government of that country. However, the levels of physical protection on which these measures have to be based, shall be the subject of an agreement between the supplier and the recipient.

c. In each case special arrangements shall be made for a clear definition of responsibilities for the transport of items referred to under paragraph 1.c. (i) and 1.c (ii).

3. Safeguards:

a) Relevant IAEA safeguards as applicable should be applied to any material or equipment referred to under paragraph 1.c. (i) and 1.c (ii) or related technology proposed to be exported to any country. Government of India shall authorize export of such items only when the relevant IAEA safeguards agreement is in force.

b) Transfer of items referred to in paragraph 1.c. (i) and 1.c (ii) or related technology to a recipient country with relevant IAEA Safeguards agreement in place, shall be authorized only upon formal governmental assurances from the recipient that ;

i. if the above mentioned agreement should be terminated the recipient will bring into force an agreement with the IAEA based on existing IAEA model safeguards agreements requiring the application of safeguards on all above referred items or related technology transferred by the supplier or processed or produced or used in connection with such transfers.

ii. If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should elaborate appropriate verification measures. If the recipient does not accept these measures, it should allow at the request of the supplier the restitution of transferred and derived above referred items.

c) Under agreements to which the policy referred to in paragraph 3 (a) and 3 (b) does not apply, transfer of items referred in paragraph 1.c. (i) and 1.c (ii) or related technology shall be authorised only when covered by IAEA safeguards with duration and coverage provisions in conformity with IAEA document GOV/1621.

d) Further, the Government of India may consider safeguards related other requirements whenever appropriate.

4. Government of India reserves the right to apply additional conditions of supply as a matter of national policy.

5. Special controls on sensitive exports:

Government of India shall exercise restraint in the transfer of sensitive facilities, equipment, technology and material usable for nuclear weapons or other nuclear explosive devices.

a) Following criteria shall be taken into account in connection with the transfer of enrichment and reprocessing facilities, and equipment and technology therefor:

(i) Adherence of non-proliferation principles by a recipient state, and whether it is in full compliance with its non-proliferation obligations.

(ii) Whether the recipient state is in breach of its obligations to comply with its safeguards agreement and whether the IAEA has reported it as a State where the IAEA is currently unable to implement its safeguards agreement.

(iii) Implementation of effective export controls.

(iv) Whether the recipient state has concluded an Inter-Governmental Agreement with the Government of India including assurances regarding non-explosive use, appropriate IAEA safeguards as applicable, and retransfers.

(v) Commitment to apply mutually agreed standards of physical protection based on current international guidelines, and

(vi)Commitment to IAEA safety standards and adherence to accepted international safety conventions.

b) It should be ensured that enrichment and reprocessing facilities, equipment and technology are intended for peaceful purposes only. Transfers shall be authorized only when the recipient has brought into force a relevant IAEA safeguards Agreement, and an Additional Protocol based on Model Additional Protocol as applicable to the recipient state.

6. Special controls on export of enrichment facilities, equipment and technology

With regard to a transfer of an enrichment facility, equipment or technology therefor, the recipient state should agree and provide a legally binding undertaking that neither the transferred facility, nor any facility incorporating such equipment or based on such technology, will be modified, replicated, designed or operated for the production of greater than 20% enriched uranium.

7. Controls on supplied or derived material usable for nuclear weapons or other nuclear explosive devices:

Government of India shall in order to advance the objectives of these guidelines and to provide opportunities further to reduce the risk of proliferation, include, whenever appropriate and practicable, in agreements on supply of source material or special fissionable material or of facilities which produce material usable for nuclear weapons or other nuclear explosive devices, provisions calling for mutual agreement between the Government of India and the recipient on arrangements for reprocessing, storage, alteration, use, transfer or re-transfer of any material usable for nuclear weapons or other nuclear explosive devices involved.

8. Controls on re-transfer:

(a) Government of India shall authorize the transfer of items referred to under paragraph 1.c. (i) and 1.c (ii) or related technology only upon the recipient’s assurance that in the case of:

1. re-transfer of such items or related technology, or

2. transfer of items indicated at 1.c. (i) and 1.c (ii) derived from facilities or the materials originally transferred by the supplier or with the help of equipment or technology originally transferred by the supplier;

the recipient of the re-transfer or transfer will have provided the same assurances as those required by the supplier for the original transfer.

(b) In addition the consent of the Government of India should be required for:

1. any re-transfer of items referred to under paragraph 1.c. (i) and 1.c (ii) or related technology, 2. any re-transfer of enrichment, reprocessing or heavy water production facilities, equipment or related technology and for any transfer of facilities or equipment of the same type derived from items originally transferred by the supplier;

3. any re-transfer of heavy water or material usable for nuclear weapons or other nuclear explosive devices.

(c) To ensure the consent right as defined under paragraph 8(b), government to government assurances will be required for any relevant original transfer.

9. Non-proliferation Principle:

Notwithstanding any other provisions of these guidelines, Government of India shall authorize transfer of items or related technology identified in the Schedule only when the Licensing Authority is satisfied that the transfers would not contribute to the development of nuclear weapons or other nuclear explosive devices or be diverted to acts of nuclear terrorism.

B. GENERAL GUIDELINES

1. Export of any prescribed substance, prescribed equipment or related technology shall be permitted only against an export license issued in this behalf unless export is prohibited. Each and every application shall be scrutinized on case-by-case basis and on the merit of each case. Notwithstanding the specific guidelines as applicable, the general guidelines will be applicable in all the cases and following relevant factors shall be taken into consideration while examining the applications for export Licenses.

2. Whether the recipient state has a relevant IAEA safeguards agreement in force.

3. Whether the equipment, materials, software or related technology to be transferred is appropriate for the stated end-use and whether that stated end-use is appropriate for the end-user.

4. Whether the equipment, materials, software or related technology to be transferred is to be used in research on or development, design, manufacture, construction, operation or maintenance of any reprocessing or enrichment facility.

5. Whether governmental actions, statements and policies of the recipient state are supportive of nuclear nonproliferation and whether the recipient state is in compliance with its international obligations in the field of nuclear related activities.

6. Whether the end-user has been engaged in clandestine or illegal procurement activities.

7. Whether a transfer has not been authorised previously to the end-user or whether the end-user has diverted for purposes inconsistent with the Guidelines any transfer previously authorized.

8. Whether there is reason to believe that there is a risk of diversion to acts of nuclear terrorism and

9. Whether there is a risk of retransfers of any prescribed substance, prescribed equipment or related technology or software or of transfers of any replica thereof as a result of a failure by the recipient State to develop and maintain appropriate, effective national export and transhipment controls.

C. CONDITIONS FOR TRANSFER

In the process of determining that the transfer will not pose any unacceptable risk of diversion, exporter should obtain the following from the recipient and furnish the same along with export license application to the Licensing Authority in the Department of Atomic Energy, Government of India:

1. A statement from the end-user specifying the end-uses.

2. A statement from the end-user specifying that the proposed transfer will be used only for the stated end-use.

3. A statement from the end-user specifying end-use locations of the proposed transfers and

4. A statement from the end-user that neither the items, nor replicas, nor derivatives thereof shall be re-transferred without the consent of the Government of India.

5. An assurance explicitly stating that the proposed transfer or any replica or derivatives thereof will not be used in the production, development or use in nuclear explosive device.

6. A statement from the end-user specifying that he shall facilitate such verifications as and when required by the Government of India. If an end-user refuses to allow such verifications, export licenses to that end-user will be denied until such time as such verifications are conducted.

D. CONSENT RIGHTS OVER RETRANSFERS

Before authorizing the transfer of materials or equipment identified in the Schedule of prescribed substances and prescribed equipment, or related technology to any country the recipient should provide assurances that the consent of Government of India will be secured, prior to any retransfer to a third country of the equipment, materials, software, or related technology, or any replica thereof.

E. GENERAL NOTE

1 .For the purpose of these guidelines the description of any item in the referred Schedule in these guidelines includes that item in either new or second-hand condition.

2. When the description of any item in the Schedule referred to in these guidelines contains no qualifications or specifications, it is regarded as including all varieties of that item.

3. Exporter may consult the licencing authority for the transfer of items not listed in the Schedule referred to in these guidelines if the items in question are or may be intended, in their entirety or in part, for use in connection with a “nuclear explosive activity”, and may obtain an authorisation as deemed necessary.

SANJEEV SOOD, Jt. Secy.

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