INDIA PROVIDES NON-PAPER RESPONSE AND DATES FOR

C O N F I D E N T I A L SECTION 01 OF 04 NEW DELHI 004215

SIPDIS

SIPDIS

E.O. 12958: DECL: 09/14/2017
TAGS: PREL PARM TSPL MTCRE KNNP ETTC ENRG TRGY IN
SUBJECT: INDIA PROVIDES NON-PAPER RESPONSE AND DATES FOR
EXPORT CONTROL TALKS

REF: A. STATE 102013

B. STATE 18720

Classified By: Political Counselor Ted Osius for Reasons 1.4 (B and D)


1. (U) This is an action request for ISN and SCA. Please see
para 4.


2. (C) Ministry of External Affairs (MEA) Director of the
Disarmament and International Security Division (DISA)
Amandeep Singh Gill gave poloff September 14 India's
non-paper response (below) to the U.S. non-papers provided
during the February 2007 High Technology Control Group
(HTCG). Gill also offered to host the export control talks
proposed in Ref A on October 15-16, with the discussion
beginning in the early afternoon of October 15. When poloff
pressed for more time, Gill assured him that the
day-and-a-half would be sufficient. Gill related that the
Indian side planned to address all 64 MTCR Annex Items that
do not seem to appear on India's control list (Ref B);
describe the enforcement work done by the WMD Advisory
Committee chaired by Additional Secretary K.C. Singh; outline
the outreach that the Indian government has done and will do;
and discuss the continuation of the Export Control and Border
Security (EXBS) program.


3. (C) Gill also gave poloff a copy of the Special Chemicals,
Organisms, Materials, Equipment and Technologies (SCOMET)
control list as revised September 7, 2007. He highlighted
changes to the definitions and missile-related sections as
particularly relevant to the upcoming talks. Although Gill
has sent the SCOMET list to the Indian Embassy in Washington,
he admitted that the Indian pouch can take an inordinate
amount of time. Post will express ship the SCOMET list to
the Department.


4. (C) Action Request: Please advise of the acceptability of
the dates. Post looks forward to hosting the export control
discussion.


5. (C/REL INDIA) BEGIN NON-PAPER

General Comments On U.S. Non-Papers On Remaining Issues On
Nuclear And Missile Export Controls, NSG And MTCR
--------------

1. Conscious of responsibilities that arise from the
possession of advanced a" sensitive and dual-use
technologies, and given our abiding commitment to the
objective of preventing proliferation of weapons of mass
destruction and their means of delivery, we have been
exercising strict control over the export of materials,
equipment and technologies of direct or indirect relevance to
weapons of mass destruction and their means of delivery. Our
system of export controls has been subject to continuous
review and updating, where necessary, in consonance with
changes in the technology environment and other requirements.
This review and updating is underpinned by our willingness to
be a full and equal partner in the pursuit of the shared
objective of preventing proliferation of weapons of mass
destruction and their means of delivery.

2. The 18 July 2005 Joint Statement with the US states that
"India would reciprocally agree that it would be ready to
assume the same responsibilities and practices and acquire
the same benefits and advantages as other leading countries
with advanced nuclear technology, such as the United States.
These responsibilities and practices consist of ensuring that
the necessary steps have been taken to secure nuclear
materials and technology through comprehensive export control
legislation and through harmonization and adherence to
Missile Rechnology Control Regime (MTCR) and Nuclear
Suppliers Group (NSG) guidelines."

3. (a) USG non-paper refers to "continued harmonization with
the NSG and MTCR as those control lists further evolve" and
updating to reflect items added to MTCR and NSG lists and
guidelines in 2006 in its comments. We have harmonized our
export control list and guidelines with the NSG and MTCR
lists and guidelines of 2005. These are being implemented
nationally through our law-based export control regulations
just as NSG and MTCR members do. Harmonization with changes
that take place on a continuing basis in these regimes
without our participation in the decision-making process is
problematic.
(b) It must be emphasized that the reference to harmonization

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and adherence with the NSG and MTCR is in the context of an
equal partnership in which India assumes the same
responsibilities and practices and acquires the same benefits
and advantages as other leading countries with advanced
nuclear technology. We would need to assess how these regimes
approach the idea of an equal partnership, especially in the
context of an India-specific exemption to the NSG guidelines,
before contemplating next steps. As the regimes adjust and
take on board our legitimate interests, this process can go
forward. It is important that we, being a state with advanced
nuclear technology, are equal members in this process.

4. On NSG (see detailed comments in attached paper),it is
our understanding that there are no substantial differences
between DAE guidelines, updated on 1 February 2006, and those
of the NSG. Our guidelines are in complete concordance with
the non-proliferation objectives of the NSG. Differences in
the language used in Gal guidelines flow solely from the fact
that India does not subscribe to the NPT related distinction
between non-nuclear weapon States and nuclear weapon States.
As the U.S. has noted this in fact makes the Indian system
stricter than the NSG. .

5. On MTCR, harmonization was effected through the revised
list issued by the DGFT on 15 July 2005 vide Notification No.
15 (RE-05)/2004-2009 and the Licensing Guidelines issued on
the same date vide Public Notice No. 29 (RE- 05)/2004-2009. A
revised notification was issued on 7 September 2007 to remove
certain ambiguities with regard to the MTCR Annex (as of
2005). With regard to definitions it may be noted that the
SCOMET List does not use the payload and range limits
specified in the MTCR Annex. This is not to narrow the scope
but on the contrary to enable missiles of all types and
ranges to be brought under stringent Gal control. In general
detailed specifications have been avoided to widen the ambit
of items covered and to make it easier for implementing
agencies to enforce the export controls. We would welcome an
opportunity to clarify SCOMET List items against the MTCR
list.

6. Constant review and strengthening is inbuilt into the
Indian system of export controls inter alia through regular
inter-ministerial working groups and now the Advisory
Committees set up in November 2006 under the WMD Act of 2005.
Effective enforcement, including through industry outreach,
is a key goal in pursuit of which several initiatives have
been taken. It should, however, be noted that enforcement in
the light of relevant lists and guidelines is a national
responsibility even for members of the NSG and MTCR. Steps
taken for effective enforcement of export controls have to be
in consonance with the structure and procedures of our
government. That India's law-based system of export controls
is effective and in line with international best practices is
demonstrated by our record.

General Comments On U.S. Non-Papers On Remaining Issues On
Nuclear And Missile Export Controls, NSG And MTCR
--------------

1. All items on the NSG Trigger and Dual-use lists contained
in INFCIRC/254 are reflected in the SCOMET list categories 0,
3 and 4. As the US non-paper does not comment specifically on
any item on the list, it appears that the US agrees that this
concordance is complete.


2. There are no substantial differences between the
guidelines for nuclear transfers (exports) published on 1
February 2006, and those of the NSG. Their fundamental
principles, including with relation to safeguards and export
controls, are the same as that of the NSG and we have legal
measures in place to ensure their effective implementation.
Differences in the language used in our guidelines flow
solely from the fact that India does not subscribe to the NPT
related distinction between non-nuclear weapon States and
nuclear weapon States. As US has noted this in fact makes the
Indian system stricter than the NSG.


3. In addition to the guidelines for nuclear transfers
(exports) of 1 February 2006, the guidelines issued by DGFT
on 15 July 2005 apply to all nuclear exports.


4. With regard to specific US comments or request for
clarifications on the guidelines the following may be noted:

a) Use of "appropriate International Atomic Energy Agency
(IAEA) safeguards" with regard to licensing of Category 0
items in the DGFT Guidelines of 15 July 2005 makes India's

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guidelines consistent with NSG requirements.

b) "Development" has a broader meaning than "proliferation"
and covers both 'horizontal' and 'vertical' proliferation.

c) NSG requirement for "catch all" is in the context of
national legislation. This aspect is covered by the Atomic
Energy Act, 1962, which covers substance and equipment "used
or intended to be used for...", as well as Section 12 of the
WMD Act, 2005.

d) Export control measures instituted by the recipient states
in the context of 1540 are covered by I c. of the guidelines
of 15 July 2005.

e) We apply similar conditions of prior consent for
retransfer of Trigger List items. As mentioned in para 4 of
the guidelines for nuclear transfers (exports),additional
conditions can be imposed by GOI if considered necessary.

f) The distinction between nuclear items and other items is
clearly and forcefully brought out in our system. There is a
separate licensing authority (DAB) for Category 0 items to
avoid any possible conflict of interest due to the dual
nature of the mandate of DGFT (trade development as well as
regulation). Further the Atomic Energy Act, 1962, which is
enforced by DAB, has a fundamental inclination against export
of nuclear items. Section 14 (1) (ii) of the Act says:
"The Central Government may, subject to such rules as may be
made in this behalf and by order prohibit except under a
licence granted by it "the acquisition, production,
possession, use, disposal, export or import-
(a) of any prescribed substances.
(b) of any minerals or other substances specified in the
rules, from which in the opinion of the Central Government
any of the prescribed substances can be obtained,.
(c) of any plant designed or adapted or manufactured for the
production, development and use of atomic energy or for
research in matters connected therewith,.
(d) of any prescribed equipment. "
Section 14 (2) of the Act further says:
"Nothing in this section shall affect the authority of the
Central Government to refuse a licence for the purpose of
this section or to include in a licence such conditions as
the Central Government thinks fit or to revoke a licence and
the Central Government may take any action as aforesaid. "
g) NSG dual use items can be found in Category 0, 3 and 4
(Category 0, which has all the Trigger List items, itself
contains some NSG dual use items) of the SCOMET List. While
Category 0 items are licensed by DAB and items on Category 3
and 4 are controlled through a licensing process administered
by DGFT, DAB consent is an essential requirement for issue of
licenses for all dual-use items of nuclear relevance in
Category 3 and 4. In examining applications for issue of
licenses for export of items listed in Category 3 and 4,
apart from the guidelines of July 15, 2005, both Part A of
the guidelines for nuclear transfers (Specific Guidelines),
which correspond to NSG Trigger List Guidelines as well as
Part B of those guidelines (General Guidelines) which apply
to all cases, are used. These correspond in substance to Part
2 of the NSG Guidelines (safeguards, risk of diversion,
non-proliferation obligations etc.) minus the references to
NNWS.
h) The guidelines for nuclear transfers clearly mention
"related technology" in both section A and B. Technology is
also defined in the Notes preceding the guidelines in the
same manner as in the SCOMET List and the DGFT guidelines of
July 15, 2005, which places related technology on the same
level as the export of the item itself. Thus technology
related to Trigger list items as well as dual use items in
Category 0, 3 and 4 would be covered by the applicable
guidelines on the basis of the same definition. Category OC
of SCOMET List specifically covers technology with regard to
substances and equipment specified in both OA and OB given
their sensitive nature, whereas Category 4C covers technology
with regard to nuclear related dual-use items specified in
Category 4A and 4B. Technology related to items in Category 3
is covered in Category 3A503.

i) GOI guidelines meet the requirements of the CPPNM and its
2005 amendment.

j) Updating with the 2006 Guidelines and Lists is a separate

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issue and is addressed in paragraphs 3 a) and b) of 'General
comments on US non-papers'.
MULFORD