Summary
S. 3709 would provide waivers, subject to
determinations made by the President and congressional approval, to the Atomic
Energy Act (AEA) of 1954 to allow for civilian nuclear cooperation between the
United States and India.
The bill would allow the President to waive certain AEA provisions on U.S.
exports and re-exports of nuclear material, equipment, and technology, if the
President makes determinations regarding India’s commitment to peaceful nuclear
cooperation, as enumerated in the July 18, 2005 Joint Statement issued by
President Bush and Prime Minister Singh of India. S. 3709 would
require a joint resolution of approval by Congress before any agreement for
nuclear cooperation with India
is enacted.
In the Joint
Statement, India
agreed to: end its production of fissile materials; ensure the separation of
its civilian and military nuclear facilities, materials and programs; cooperate
with the international community on non-proliferation initiatives; implement
International Atomic Energy Agency (IAEA) safeguards; and adhere to export
control guidelines established by the Missile Technology Control Regime and the
Nuclear Suppliers Group (NSG).
The bill bars
the export of uranium enrichment or spent fuel reprocessing technology to India and instructs the President to create a
program that shall include, as appropriate, end-use monitoring conditions to
ensure that all items exported to India
are used for peaceful purposes and to ensure U.S. compliance with the Nuclear
Non-Proliferation Treaty (NPT). It would require annual presidential
certifications regarding India’s compliance with its commitments under the July
2005 Joint Statement, its Separation Plan, New Delhi’s Safeguards Agreement and
Additional Protocol with the IAEA, the 123 Agreement and applicable U.S. laws
governing U.S. exports to India. The bill explicitly states that any
U.S.-India civilian nuclear cooperation agreement would be terminated if India conducts
a nuclear test (after July 18, 2005).
Title II of S.
3709 would enable the President to ratify the U.S. Additional Protocol with
the IAEA, which would provide the IAEA with increased access to, and
information regarding, U.S.
peaceful nuclear activities and sites. (The Senate gave its advice and
consent to such ratification in 2004, but this implementing legislation is
required before ratification can occur.)
Major Provisions
Title I: United States-India Peaceful Atomic Energy Cooperation
Sense of the Congress. The bill states that it is the sense of Congress
that: 1) strong bilateral relations with India are in the national interest of
the United States; 2) India and the United States share common democratic
values and potential for increasing economic cooperation; 3) U.S.-India
civilian nuclear cooperation has the potential to benefit people of all
countries; 4) civil nuclear cooperation with India presents a significant
change in U.S. policy toward countries not party to the NPT and asserts that NPT
remains the foundation of the international non-proliferation regime; 5)
commerce in civilian nuclear energy with India must be pursued in a manner that
minimizes nuclear proliferation and maximizes India’s compliance with the
international non-proliferation regime; and 6) any sanctions on nuclear exports
to India imposed by U.S. law should not be undermined by other countries.
Declaration of policy. S. 3709 states that it shall be U.S. policy:
1) To achieve as quickly as possible “the cessation of the production
by India and Pakistan of fissile materials for nuclear
weapons and other nuclear explosive devices” and to encourage India and Pakistan to reduce tensions over
their nuclear programs to avoid an arms race;
2) To gain India’s adherence to, and compliance with, international
non-proliferation regimes, including: full participation in the Proliferation
Security Initiative (PSI); formal commitment to the Statement of Interdiction
Principles; a public announcement to ensure that its export control laws and
regulations comply with the Australia Group and with the Guidelines,
Procedures, Criteria, and Controls List of the Wassenaar
Arrangement; and demonstrated progress toward implementing such efforts;
3) To ensure that India
remains in full compliance with non-proliferation, arms control, and
disarmament agreements obligations and commitments;
4) To ensure that any safeguards agreement between India and the IAEA can reliably safeguard any
export or re-export to India
of any nuclear materials and equipment;
5) To ensure that India
meets all the requirements of nuclear cooperation in Section 123(a) of the AEA;
6) To ensure that U.S.
nuclear trade with India
complies with NSG guidelines regarding nuclear transfers and dual-use equipment
and technologies;
7) To work with NSG members to further restrict the transfers of
uranium enrichment, spent fuel reprocessing, and heavy water production
equipment and technologies;
8) To maintain maximum international support for, adherence to, and
compliance with the NPT; and
9) That U.S.
exports of nuclear fuel to India
should not contribute to, or encourage, increases in India’s production of fissile
material for non-civilian purposes.
Waiver authority. S. 3709 would grant the President some of the requested authority to
exempt a proposed agreement for nuclear cooperation with India from
Sections 123, 128 and 129 of the AEA. The Senate version of the bill,
however, would maintain congressional review provisions under Sections 123(b)
and 123(d) for any agreement of cooperation with India, which require the
administration to coordinate and submit to Congress a Nuclear Proliferation
Assessment (NPASS). The bill also allows only a narrow waiver of Section
129 of the AEA. In effect, the bill would establish the nonproliferation
measures to which India
agreed in the Joint Statement as the basis for U.S.
nuclear cooperation with India.
The bill would also require that the NSG agree, by consensus, to permit such
nuclear cooperation.
The bill states
that waiver authority is conditional on the President’s determination that:
1) India has provided to the IAEA and the United States a credible
plan to separate its civilian nuclear facilities, materials, and programs from
its military facilities, materials, and programs;
2) India has filed a declaration regarding its
civil nuclear facilities;
3) India and the IAEA have enacted an agreement requiring India to
apply safeguards in accordance with IAEA standards, principles and practices to
its civil nuclear facilities, programs and materials, and that such an
agreement is provided to congressional committees;
4) India and the IAEA are making substantial
progress toward implementing an Additional Protocol (the administration’s
legislation required only “satisfactory” progress);
5) India is working with the United States
to conclude a multilateral treaty on the cessation of the production of fissile
materials;
6) India is supporting international efforts to
prevent the proliferation 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 materials and
technology through the application of export control laws and regulation,
effective enforcement mechanisms, and adherence to the guidelines of the
Missile Technology Control Regime and the Nuclear Suppliers Group;
8) The Nuclear Suppliers Group has agreed, by consensus to allow civil
nuclear commerce with India
and that the NSG does not allow nuclear commerce with any non-nuclear state
other than India
that does not have IAEA safeguards on all nuclear materials.
Similar to the
legislation passed by the House, S. 3709 would waive any Section 129
sanctions on any actions that occurred before July 18, 2005 (to cover India’s 1998
nuclear tests).
Congressional approval. Contrary to the Administration’s proposed
legislation, but like the House-passed legislation, S. 3709 would require
congressional approval of a finalized agreement before it may enter into force,
through the passage of a joint resolution by both houses of Congress.
Prohibited exports and re-exports. The bill prohibits the transfer of
enrichment, reprocessing, and heavy-water technologies to India, unless
provided under the Global Nuclear Energy Partnership (GNEP) initiative or under
an international fuel cycle project approved by the IAEA. This provision
would help ensure that U.S.
civilian nuclear commerce with India
does not assist the country in its development of nuclear technologies for
non-civilian programs.
End-use monitoring program. S. 3709 would require a program, which would
include end-use monitoring conditions as appropriate, to maintain accountability
with respect to nuclear materials, equipment, and technology sold, leased and
exported, or re-exported to India.
This provision would enhance confidence in India’s
efforts to ensure separation of its civilian and military nuclear programs,
facilities, materials and personnel and also further ensure U.S. compliance
with Article I of the NPT.
Reporting requirements. The bill would require the President to provide the
Senate Foreign Relations Committee and the House International Relations
Committee with updated information regarding India’s compliance with
non-proliferation commitments. Specifically, it would require the
President to keep these committees informed of any material violation of India’s nuclear non-proliferation commitments,
the construction of any nuclear facilities in India,
any significant changes in India’s
production of nuclear weapons or fissile materials, or changes in the purpose
or status of India’s
non-declared facilities. S. 3709 would require the President to submit
an annual report on the implementation of civil nuclear commerce, India’s compliance with its nonproliferation
commitments, and U.S.
efforts and progress toward achieving India’s full participation in the
PSI and adherence to the guidelines and policies of the Australia Group and the
Wassenaar Arrangement.
Treaty commitments. S. 3709 requires that the United States
uphold all of its obligations under the NPT in its civilian nuclear commerce
with India.
The bill states that if India
detonates a nuclear explosive device for any reason, any waiver of Atomic
Energy Act provisions under this Act shall cease to be effective. Any
nuclear cooperation agreement approved pursuant to this Act must allow,
moreover, for the United States
to demand the return of all exports and re-exports made to India (as is
the case under existing law). Further, if the United
States terminates nuclear cooperation with India under the
bill’s terms, it should not facilitate or encourage the continuation of nuclear
exports by other countries.
Title II: United
States Additional Protocol Implementation
Title II of the
bill would enable the President to ratify the U.S. Additional Protocol with the
IAEA, which would provide the IAEA with increased access to, and information regarding,
U.S.
peaceful nuclear activities and sites. (The Senate gave its advice and
consent to such ratification in 2004, but this implementing legislation is
required before ratification can occur.)
Cost
estimate. The
Congressional Budget Office (CBO) estimates that implementing S. 3709
would cost $17 million in 2007 and $72 million over the period of 2007-2011
period, assuming appropriation of the necessary amounts.
Regulatory impact. S. 3709 would require changes in several U.S. laws and regulations governing
nuclear trade, including the Export Administration Act, Export
Administration Regulations, the Arms Export Control Act, Title 10, Code
of Federal Regulations, and the Atomic Energy Act.
Legislative History
On June 29,
2006, the Senate Foreign Relations Committee passed S. 3709 by a vote of
16-2. The bill was reported in the full Senate on July 20, 2006.
The House of
Representatives passed H.R. 5682, the United
States and India Nuclear Cooperation Promotion
Act of 2006, which differs from the bill now being considered in the
Senate, by a vote of 359 to 68 on July 26, 2006.
Statement of
Administration Policy
On July 26,
2006, the White House issued a Statement of Administration Policy (SAP) in support
of passage by the House of Representatives of H.R. 5682, as reported by
the House International Relations Committee. The SAP can be viewed at the
Office of Management and Budget’s website, (http://www.whitehouse.gov/omb/legislative/sap/109-2/hr5682sap-h.pdf). At the time of publication, no SAP has been issued
for the Senate version of the bill, S. 3709.
Expected Amendments
The floor
managers are expected to introduce a substitute amendment that will be the
basis for floor debate and action. Amendments to Title I
(the U.S.-India portion of the bill) are strictly technical – cleaning up
definitions and deleting subsection 106(a), which was determined to be unnecessary
to achieve the objectives of that section.
Amendments to
Title II (implementing legislation for the U.S.-IAEA Additional Protocol) were
proposed by members of the Republican Steering Committee and were negotiated
largely with the Chairman of the Senate Foreign Relations Committee and the
Bush Administration. These changes:
- Add a new Section 202 with 10 findings.
- Add a new Subsection (b)(3) in Section 251,
“Notification to Congress of IAEA Board Approval of Wide-Area
Environmental Sampling,” that requires “an assessment of the ability of
the approved methods and sampling techniques to detect, identify, and
determine the conduct, type, and nature of nuclear activities.”
- Modify the section of the Committee-reported
bill on “Application of the National Security Exclusion to Wide-Area
Environmental Sampling” (Section 252), to make each such instance of
wide-area environmental sampling subject to Section 252.
- Similarly modify Section 253, to make that
section, “Application of the National Security Exclusion to
Location-Specific Environmental Sampling,” apply to each use of
location-specific sampling in the United States, and to add an additional
determination requirement for such sampling:“ (1)
the proposed use of location-specific environmental sampling is necessary
to increase the capability of the IAEA to detect undeclared nuclear
activities in a non-nuclear weapons state.”
- Add a new Section 254, “Rule of Construction,”
that provides that, “As used in this subtitle, the term ‘necessary to
increase the capability of the IAEA to detect undeclared nuclear
activities in the territory of a non-nuclear-weapon State Party’ shall not
be construed to encompass proposed uses of environmental sampling that
might assist the IAEA in detecting undeclared nuclear activities in the
territory of a non-nuclear-weapon State Party by— (1) setting a good
example of cooperation in the conduct of such sampling; or (2)
facilitating the formation of a political consensus or political support
for such sampling in the territory of a non-nuclear-weapon State Party.”
- Add a new Subtitle F, called “Protection of
National Security Information and Activities,” that requires that: no
current former DoD or DOE site of direct national
security significance will be declared or subject to IAEA inspection under
the Additional Protocol; no information of direct national security
significance regarding the above sites will be provided; nothing in this
Act shall be construed to permit the disclosure to the IAEA or its
employees of Restricted Data or “national security information and other
classified information;” no national from a state sponsor of terrorism
shall be allowed into the United States to perform an IAEA inspection; IAEA
inspectors shall be accompanied by U.S. Government personnel during each
inspection; and vulnerability assessments shall be conducted at least
every five years of every site subject to IAEA inspection under the
Additional Protocol.
- Add a new Subtitle G, called “Reports,” that
requires: prior notice of sites to be declared to the IAEA under the
Additional Protocol (or to be added to or removed from such declaration),
together with a certification that such sites have undergone a
vulnerability assessment; an annual report on efforts to achieve the
adoption of additional protocols and U.S. assistance to the IAEA to
promote effective implementation and verification of compliance with such
protocols; and notification of any IAEA notification to the United States
(under Article 10 of the Additional Protocol) of its activities under the
Additional Protocol and any questions or inconsistencies raised regarding
the United States.
The DPC will
circulate a description of other possible amendments as information becomes
available.
