H. Rept. 109-590 - UNITED STATES AND INDIA NUCLEAR COOPERATION PROMOTION ACT OF 2006109th Congress (2005-2006)
Committee Report
| Report Type: | House Report |
|---|---|
| Accompanies: | H.R.5682 |
| Committees: |
Reports for H.R.5682
H. Rept. 109-590 - 109th Congress (2005-2006)
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House Report 109-590 - UNITED STATES AND INDIA NUCLEAR COOPERATION PROMOTION ACT OF 2006
[House Report 109-590]
[From the U.S. Government Publishing Office]
109th Congress Rept. 109-590
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
UNITED STATES AND INDIA NUCLEAR COOPERATION PROMOTION ACT OF 2006
_______
July 21, 2006.--Ordered to be printed
_______
Mr. Hyde, from the Committee on International Relations, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 5682]
[Including cost estimate of the Congressional Budget Office]
The Committee on International Relations, to whom was
referred the bill (H.R. 5682) to exempt from certain
requirements of the Atomic Energy Act of 1954 a proposed
nuclear agreement for cooperation with India, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 8
Background and Need for the Legislation.......................... 9
Hearings......................................................... 10
Committee Consideration.......................................... 11
Votes of the Committee........................................... 11
Committee Oversight Findings..................................... 12
New Budget Authority and Tax Expenditures........................ 12
Congressional Budget Office Cost Estimate........................ 12
Performance Goals and Objectives................................. 14
Constitutional Authority Statement............................... 14
Section-by-Section Analysis and Discussion....................... 14
Agency Views..................................................... 28
New Advisory Committees.......................................... 29
Congressional Accountability Act................................. 29
Federal Mandates................................................. 29
Additional Views................................................. 31
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``United States and India Nuclear
Cooperation Promotion Act of 2006''.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) preventing the proliferation of nuclear weapons, other
weapons of mass destruction, the means to produce them, and the
means to deliver them are critical objectives for United States
foreign policy;
(2) sustaining the NPT and strengthening its
implementation, particularly its verification and compliance,
is the keystone of United States nonproliferation policy;
(3) the NPT has been a significant success in preventing
the acquisition of nuclear weapons capabilities and maintaining
a stable international security situation;
(4) countries that have never become a party to the NPT and
remain outside that treaty's legal regime pose a potential
challenge to the achievement of the overall goals of global
nonproliferation, because those countries have not undertaken
the NPT's international obligation to prohibit the spread of
dangerous nuclear technologies;
(5) it is in the interest of the United States to the
fullest extent possible to ensure that those countries that are
not NPT members are responsible with any nuclear technology
they develop;
(6) it may be in the interest of the United States to enter
into an agreement for nuclear cooperation as set forth in
section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153)
with a country that has never been an NPT member with respect
to civilian nuclear technology if--
(A) the country has demonstrated responsible
behavior with respect to the nonproliferation of
technology related to weapons of mass destruction
programs and the means to deliver them;
(B) the country has a functioning and uninterrupted
democratic system of government, has a foreign policy
that is congruent to that of the United States, and is
working with the United States in key foreign policy
initiatives related to non-proliferation;
(C) such cooperation induces the country to
implement the highest possible protections against the
proliferation of technology related to weapons of mass
destruction programs and the means to deliver them, and
to refrain from actions that would further the
development of its nuclear weapons program; and
(D) such cooperation will induce the country to
give greater political and material support to the
achievement of United States global and regional
nonproliferation objectives, especially with respect to
dissuading, isolating, and, if necessary, sanctioning
and containing states that sponsor terrorism and
terrorist groups, that are seeking to acquire a nuclear
weapons capability or other weapons of mass destruction
capability and the means to deliver such weapons; and
(7)(A) India meets the criteria described in this
subsection; and
(B) it is in the national security interest of the United
States to deepen its relationship with India across a full
range of issues, including peaceful nuclear cooperation.
SEC. 3. STATEMENTS OF POLICY.
(a) In General.--The following shall be the policies of the United
States:
(1) Oppose the development of a capability to produce
nuclear weapons by any non-nuclear weapon state, within or
outside of the Treaty on the Non-Proliferation of Nuclear
Weapons (21 UST 483; commonly referred to as the ``Nuclear Non-
Proliferation Treaty'' or the ``NPT'').
(2) Encourage states party to the NPT to interpret the
right to ``develop research, production and use of nuclear
energy for peaceful purposes'', as described in Article IV of
the NPT, as being a qualified right that is conditioned by the
overall purpose of the NPT to prevent the spread of nuclear
weapons and nuclear weapons capability, including by refraining
from all nuclear cooperation with any state party that has not
demonstrated that it is in full compliance with its NPT
obligations, as determined by the IAEA.
(3) Strengthen the Nuclear Suppliers Group guidelines
concerning consultation by members regarding violations of
supplier and recipient understandings by instituting the
practice of a timely and coordinated response by NSG members to
all such violations, including termination of nuclear transfers
to an involved recipient, that discourages individual NSG
members from continuing cooperation with such recipient until
such time as a consensus regarding a coordinated response has
been achieved.
(b) With Respect to South Asia.--The following shall be the
policies of the United States with respect to South Asia:
(1) Achieve a moratorium on the production of fissile
material for nuclear explosive purposes by India, Pakistan, and
the People's Republic of China at the earliest possible date.
(2) Achieve, at the earliest possible date, the conclusion
and implementation of a treaty banning the production of
fissile material for nuclear weapons to which both the United
States and India become parties.
(3) Secure India's--
(A) full participation in the Proliferation
Security Initiative;
(B) formal commitment to the Statement of
Interdiction Principles;
(C) public announcement of its decision to conform
its export control laws, regulations, and policies with
the Australia Group and with the Guidelines,
Procedures, Criteria, and Control Lists of the
Wassennaar Arrangement;
(D) demonstration of satisfactory progress toward
implementing the decision described in subparagraph
(C); and
(E) ratification of or accession to the Convention
on Supplementary Compensation for Nuclear Damage, done
at Vienna on September 12, 1997.
(4) Secure India's full and active participation in United
States 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 or process nuclear
materials), and the means to deliver weapons of mass
destruction.
(5) Seek to halt the increase of nuclear weapon arsenals in
South Asia, and to promote their reduction and eventual
elimination.
(6) To ensure that spent fuel generated in India's civilian
nuclear power reactors is not transferred to the United States
except pursuant to the Congressional review procedures required
under section 131 f. of the Atomic Energy Act of 1954 (42
U.S.C. 2160 f.).
(7) Pending implementation of a multilateral moratorium,
encourage India not to increase its production of fissile
material at unsafeguarded nuclear facilities.
SEC. 4. WAIVER AUTHORITY AND CONGRESSIONAL APPROVAL.
(a) In General.--Notwithstanding any other provision of law, if the
President makes the determination described in subsection (b), the
President may--
(1) exempt a proposed agreement for nuclear cooperation
with India (arranged pursuant to section 123 of the Atomic
Energy Act of 1954 (42 U.S.C. 2153)) from the requirement in
section 123 a.(2) of such Act, and such agreement for
cooperation may only enter into force in accordance with
subsections (f) and (g);
(2) waive the application of section 128 of the Atomic
Energy Act of 1954 (42 U.S.C. 2157) with respect to India,
provided that such waiver shall cease to be effective if the
President determines that India has engaged in any activity
described section 129 of such Act (42 U.S.C. 2158), other than
section 129 a.(1)(D) or section 129 a.(2)(C) of such Act, at
any time after the date of the enactment of this Act; and
(3) with respect to India--
(A) waive the restrictions of section 129 a.(1)(A)
of the Atomic Energy Act of 1954 (42 U.S.C. 2158
a.(1)(A)) for any activity that occurred on or before
July 18, 2005; and
(B) section 129 a.(1)(D) of such Act.
(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
International Atomic Energy Agency with a credible plan to
separate civil and military nuclear facilities, materials, and
programs, and has filed a declaration regarding its civil
facilities with the IAEA.
(2) India and the IAEA have concluded 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 Fissile Material Cutoff
Treaty.
(5) India is working with and supporting United States and
international efforts to prevent the spread of enrichment and
reprocessing technology.
(6) India is taking the necessary steps to secure nuclear
and other sensitive materials and technology, including
through--
(A) the enactment and enforcement of comprehensive
export control legislation and regulations;
(B) harmonization of its export control laws,
regulations, policies, and practices with the policies
and practices of the Missile Technology Control Regime
and the Nuclear Suppliers Group; and
(C) adherence to the MTCR and the NSG in accordance
with the procedures of those regimes for unilateral
adherence.
(7) The NSG has decided by consensus to permit supply to
India of nuclear items covered by the guidelines of the NSG and
such decision does not permit civil nuclear commerce with any
other non-nuclear weapon state that does not have IAEA
safeguards on all nuclear materials within its territory, under
its jurisdiction, or carried out under its control anywhere.
(c) Submission to Congress.--
(1) In general.--The President shall submit to the
Committee on International Relations of the House of
Representatives and the Committee on Foreign Relations of the
Senate information concerning any 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 information referred to in
paragraph (1) shall include the following:
(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
technology, 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
and adherence to Missile Technology Control Regime, the
Nuclear Suppliers Group, the Australia Group,
Wassennaar guidelines, and United Nations Security
Council Resolution 1540, and participation in the
Proliferation Security Initiative.
(G) A description of the decision taken within the
Nuclear Suppliers Group relating to nuclear cooperation
with India, including whether nuclear cooperation by
the United States under an agreement for cooperation
arranged pursuant to section 123 of the Atomic Energy
Act of 1954 (42 U.S.C. 2153) is consistent with the
decision, practices, and policies of the NSG.
(H) A description of the scope of peaceful
cooperation envisioned by the United States and India
that will be implemented under the Agreement for
Nuclear Cooperation, including whether such cooperation
will include the provision of enrichment and
reprocessing technology.
(I) A description of the steps taken to ensure that
proposed United States civil nuclear assistance to
India will not directly, or in any other way, assist
India's nuclear weapons program, including--
(i) the use of any United States equipment,
technology, or nuclear material by India in an
unsafeguarded nuclear facility or nuclear-
weapons related complex;
(ii) the replication and subsequent use of
any United States technology in an
unsafeguarded nuclear facility or unsafeguarded
nuclear weapons-related complex, or for any
activity related to the research, development,
testing, or manufacture of nuclear explosive
devices; and
(iii) the provision of nuclear fuel in such
a manner as to facilitate the increased
production of highly-enriched uranium or
plutonium in unsafeguarded nuclear facilities.
(d) Restrictions on Nuclear Transfers to India.--
(1) In general.--Pursuant to the obligations of the United
States under Article I of the NPT, nothing in this Act, or any
agreement pursuant to this Act, shall be interpreted as
permitting any civil nuclear cooperation between the United
States and India that would in any way assist, encourage, or
induce India 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 pursuant
to section 123 of the Atomic Energy Act of 1954 (42 U.S.C.
2153) and approved pursuant to this Act, no item subject to
such agreement or subject to the transfer guidelines of the NSG
may be transferred to India if such transfer would violate the
transfer guidelines of the NSG as in effect on the date of the
transfer.
(3) Termination of nuclear transfers to india.--
Notwithstanding the entry into force of an agreement for
nuclear cooperation with India (arranged pursuant to section
123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153)), exports
of nuclear and nuclear-related material, equipment, or
technology to India shall be terminated if India makes any
materially significant transfer of--
(A) nuclear or nuclear-related material, equipment,
or technology that does not conform to NSG guidelines,
or
(B) ballistic missiles or missile-related equipment
or technology that does not conform to 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.
(4) Prohibition on nuclear transfers to india.--If nuclear
transfers to India are restricted pursuant to this Act, the
Atomic Energy Act of 1954, or the Arms Export Control Act, the
President should seek to prevent the transfer to India of
nuclear equipment, materials, or technology from other
participating governments in the NSG or from any other source.
(e) Approval of Agreement for Nuclear Cooperation Required.--
(1) In general.--Subject to subsection (m), an agreement
for nuclear cooperation between the United States and India
submitted pursuant to this section may become effective only
if--
(A) the President submits to Congress the agreement
concluded between the United States and India,
including a copy of the safeguards agreement entered
into between the IAEA and India relating to India's
declared civilian nuclear facilities, in accordance
with the requirements and procedures of section 123 of
the Atomic Energy Act of 1954 (other than section 123
a.(2) of such Act) that are otherwise not inconsistent
with the provisions of this Act; and
(B) after the submission under subparagraph (A),
the agreement is approved by a joint resolution that is
enacted into law.
(2) Consultation.--Beginning one month after the date of
the enactment of this Act and every month thereafter until the
President submits to Congress the agreement referred to in
paragraph (1), the President should consult with the Committee
on International Relations of the House of Representatives and
the Committee on Foreign Relations of the Senate regarding the
status of the negotiations between the United States and India
with respect to civilian nuclear cooperation and between the
IAEA and India with respect to the safeguards agreement
described in subsection (b)(2).
(f) Joint Resolution.--For purposes of this section, a joint
resolution referred to in subsection (e)(1)(B) is a joint resolution of
the two Houses of Congress--
(1) the matter after the resolving clause of which is as
follows: ``That the Congress hereby approves the Agreement for
Nuclear Cooperation Between the United States of America and
the Republic of India submitted by the President on
___________.'', with the blank space being filled with the
appropriate date;
(2) which does not have a preamble; and
(3) the title of which is as follows: ``Joint Resolution
Approving an Agreement for Nuclear Cooperation Between the
United States and India''.
(g) Introduction and Referral.--
(1) Introduction.--A joint resolution shall, on the day on
which the submissions under subsection (e)(1)(A) are made (or,
if either House of Congress is not in session on that day, the
first day thereafter when that House is in session)--
(A) be introduced in the House of Representatives
by the majority leader, for himself and the minority
leader of the House, or by Members of the House
designated by the majority leader and minority leader
of the House; and
(B) be introduced in the Senate by the majority
leader, for himself and the minority leader of the
Senate, or by Members of the Senate designated by the
majority leader and minority leader of the Senate.
If either House of Congress is not in session on that day, the
joint resolution shall be introduced on the first day
thereafter when both Houses are in session.
(2) Referral.--The joint resolution shall be referred to
the Committee on International Relations of the House of
Representatives and to the Committee on Foreign Relations of
the Senate.
(h) Discharge of Committees.--If a committee to which a joint
resolution is referred has not reported such joint resolution by the
end of 60 days beginning on the date of its introduction, or the date
of the submission of the nonproliferation assessment statement
described in section 123 of the Atomic Energy Act of 1954 (42 U.S.C.
2153), whichever is later, such committee shall be discharged from
further consideration of such joint resolution, and such joint
resolution shall be placed on the appropriate calendar of the House
involved.
(i) Floor Consideration in the House of Representatives.--
(1) In general.--On or after the third calendar day
(excluding Saturdays, Sundays, or legal holidays, except when
the House of Representatives is in session on such a day) after
the date on which the committee to which a joint resolution is
referred has reported, or has been discharged from further
consideration of, such a joint resolution, it shall be in order
for any Member of the House to move to proceed to the
consideration of the joint resolution. A Member of the House
may make the motion only on the day after the calendar day on
which the Member announces to the House the Member's intention
to do so. Such motion shall be privileged and shall not be
debatable. The motion shall not be subject to amendment or to a
motion to postpone. A motion to reconsider the vote by which
the motion is agreed to shall not be in order. If a motion to
proceed to the consideration of the joint resolution is agreed
to, the House shall immediately proceed to consideration of the
joint resolution which shall remain the unfinished business
until disposed of.
(2) Debate.--Debate on a joint resolution, and on all
debatable motions and appeals in connection therewith, shall be
limited to not more than six hours, which shall be divided
equally between those favoring and those opposing the joint
resolution. An amendment to the joint resolution shall not be
in order. A motion to further limit debate shall be in order
and shall not be debatable. A motion to table, a motion to
postpone, or a motion to recommit the joint resolution shall
not be in order. A motion to reconsider the vote by which the
joint resolution is agreed to or disagreed to shall not be in
order.
(3) Appeals.--Appeals from the decisions of the Chair to
the procedure relating to a joint resolution shall be decided
without debate.
(j) Floor Consideration in the Senate.--Any joint resolution shall
be considered in the Senate in accordance with the provisions of
section 601(b)(4) of the International Security Assistance and Arms
Export Control Act of 1976.
(k) Consideration by the Other House.--If, before the passage by
one House of a joint resolution of that House, that House receives a
joint resolution from the other House, then the following procedures
shall apply:
(1) The joint resolution of the other House shall not be
referred to a committee and may not be considered in the House
receiving it except in the case of final passage as provided in
paragraph (2)(B).
(2) With respect to a joint resolution of the House
receiving the joint resolution--
(A) the procedure in that House shall be the same
as if no joint resolution had been received from the
other House; but
(B) the vote on final passage shall be on the joint
resolution of the other House.
(3) Upon disposition of the joint resolution received from
the other House, it shall no longer be in order to consider the
joint resolution that originated in the receiving House.
(l) Computation of Days.--In the computation of the period of 60
days referred to in subsection (h), there shall be excluded the days on
which either House of Congress is not in session because of an
adjournment of more than 3 days to a day certain or because of an
adjournment of the Congress sine die.
(m) Section 123 of Atomic Energy Act of 1954 Not Affected.--
Notwithstanding subsection (e)(1), this section does not preclude the
approval, under section 123 of the Atomic Energy Act of 1954 (42 U.S.C.
2153), of an agreement for cooperation in which India is the
cooperating party.
(n) Sunset.--The procedures under this section shall cease to be
effective upon the enactment of a joint resolution under this section.
(o) Reports.--
(1) Policy objectives.--The President shall, not later than
January 31, 2007, and not later than January 31 of each year
thereafter, submit to the Committee on International Relations
of the House of Representatives and the Committee on Foreign
Relations of the Senate a report on--
(A) the extent to which each policy objective in
section 3(b) has been achieved;
(B) the steps taken by the United States and India
in the preceding calendar year to accomplish those
objectives;
(C) the extent of cooperation by other countries in
achieving those objectives; and
(D) the steps the United States will take in the
current calendar year to accomplish those objectives.
(2) Nuclear exports to india.--
(A) In general.--Not later than one year after the
date on which an agreement for nuclear cooperation
between the United States and India is approved by
Congress under section 4(f) and every year thereafter,
the President shall submit to the Committee on
International Relations of the House of Representatives
and the Committee on Foreign Relations of the Senate a
report describing United States exports to India for
the preceding year pursuant to such agreement and the
anticipated exports to India for the next year pursuant
to such agreement.
(B) Nuclear fuel.--The report described in
subparagraph (A) shall also include (in a classified
form if necessary)--
(i) an estimate for the previous year of
the amount of uranium mined in India;
(ii) the amount of such uranium that has
likely been used or allocated for the
production of nuclear explosive devices;
(iii) the rate of production of--
(I) fissile material for nuclear
explosive devices; and
(II) nuclear explosive devices; and
(iv) an analysis as to whether imported
uranium has affected such rate of production of
nuclear explosive devices.
(C) Unsafeguarded nuclear facilities.--The report
described in subparagraph (A) shall also include (in a
classified form if necessary) a description of whether
United States civil nuclear assistance to India is
directly, or in any other way, assisting India's
nuclear weapons program, including--
(i) the use of any United States equipment,
technology, or nuclear material by India in an
unsafeguarded nuclear facility or nuclear-
weapons related complex;
(ii) the replication and subsequent use of
any United States technology in an
unsafeguarded nuclear facility or unsafeguarded
nuclear weapons-related complex, or for any
activity related to the research, development,
testing, or manufacture of nuclear explosive
devices; and
(iii) the provision of nuclear fuel in such
a manner as to facilitate the increased
production of highly-enriched uranium or
plutonium in unsafeguarded nuclear facilities.
(3) New nuclear reactors or facilities.--Not later than one
year after the date of the enactment of this Act and annually
thereafter, the President shall submit to the Committee on
International Relations of the House of Representatives and the
Committee on Foreign Relations of the Senate a report
describing any new nuclear reactors or nuclear facilities that
the Government of India has designated as civilian and placed
under inspections or has designated as military.
(4) Disposal of spent nuclear fuel.--Not later than one
year after the date on which an agreement for nuclear
cooperation between the United States and India is approved by
Congress under section 4(f) and every year thereafter, the
President shall submit to the Committee on International
Relations of the House of Representatives and the Committee on
Foreign Relations of the Senate a report describing the
disposal of spent nuclear fuel from India's civilian nuclear
program.
(p) Definitions.--In this Act:
(1) IAEA.--The term ``IAEA'' means the International Atomic
Energy Agency.
(2) MTCR.--The term ``MTCR'' means the Missile Technology
Control Regime.
(3) NPT.--The term ``NPT'' means the Treaty on the Non-
Proliferation of Nuclear Weapons.
(4) NPT member.--The term ``NPT member'' means a country
that is a party to the NPT.
(5) NSG.--The term ``NSG'' means the Nuclear Suppliers
Group.
Purpose and Summary
H.R. 5682, the United States and India Nuclear Cooperation
Promotion Act of 2006, would exempt a future peaceful nuclear
cooperation agreement with India from current statutory
restrictions in the Atomic Energy Act of 1954 (AEA), as
amended, that would otherwise not permit the export of nuclear
items and materials to India. Such restrictions normally apply
on such agreements with states (other than ``Nuclear Weapon
States'' such as the United Kingdom, France, China and Russia
as recognized by the Treaty on the Nonproliferation of Nuclear
Weapons, or NPT) that do not have comprehensive international
nuclear safeguards, that have ongoing nuclear weapons programs,
or that have tested nuclear weapons since 1978. A peaceful
nuclear cooperation agreement with India would be inconsistent
with these restrictions.
H.R. 5682 requires that, in order to waive the requirements
in the AEA, the President must certify that India has fulfilled
the commitments it undertook on July 18, 2005 in the U.S.-India
Joint Statement to (among other activities) expand peaceful
nuclear trade. These commitments included providing a credible
plan to separate its civilian and military nuclear facilities,
concluding a safeguards agreement with the International Atomic
Energy Agency (IAEA), continuing its moratorium on nuclear
tests, and working actively with the United States to prevent
the spread of nuclear enrichment and reprocessing technology to
other countries, among other measures. In addition, the
President must certify that the Nuclear Suppliers Group (NSG)
has agreed by consensus to modify its guidelines to permit
civil nuclear trade with India, which would otherwise be
precluded for its 45 member-states.
Once the President certifies that these conditions have
been met, he may exercise the waiver authorities provided in
the bill and present the negotiated agreement to Congress for
approval. In order for U.S.-India nuclear cooperation to begin,
however, the negotiated agreement must be approved by a
subsequent joint resolution adopted by both the House and
Senate. The text of the safeguards agreement between India and
the International Atomic Energy Agency must also be submitted
to inform Congressional review of the U.S.-India agreement,
which will rely upon the IAEA safeguards to alert the U.S. to
any diversion of U.S.-provided nuclear material from peaceful
to military purposes. Finally, H.R. 5682 provides for enhanced
Congressional oversight of nuclear cooperation with India by
requiring annual reports on U.S. non-proliferation policy in
South Asia and the implementation of the U.S.-India Nuclear
Cooperation Agreement.
Background and Need for the Legislation
Relations between India and the United States have been
marred for decades by coolness and distrust, punctuated by
occasional hostility. With the receding of the Cold War's
global divisions and the new realities of globalization and
trans-national terrorism, for more than a decade there has been
increasing recognition in both countries of the significant
benefits to be obtained from closer cooperation across a broad
spectrum. These range from shared strategic interests, such as
enhanced stability and security in South Asia and the
international system as a whole, to more specific priorities,
including greater effectiveness in combating the AIDS epidemic,
combating terrorism around the world, and preventing the
proliferation of weapons of mass destruction, among others.
To that end, on July 18, 2005, President Bush and Indian
Prime Minister Manmohan Singh issued a joint statement
announcing a ``global partnership'' between the two countries
that embraces cooperation across a wide range of subjects. As
part of that announcement, President Bush stated that he would
``work to achieve full civil nuclear energy cooperation with
India'' and would ``also seek agreement from Congress to adjust
U.S. laws and policies.''
The Administration's proposed legislation, H.R. 4974,
subsequently reintroduced with modifications as H.R. 5682,
would provide the Administration with authority to waive the
relevant provisions of the AEA. Three provisions of the Atomic
Energy Act (42 U.S.C. 2153 et seq) contain restrictions on
cooperation that the Administration deemed to be insurmountable
hurdles in conducting civil nuclear cooperation with India:
Section 123 a.(2), which requires that a non-nuclear weapon
state have IAEA safeguards on all nuclear material in all
peaceful nuclear activities in that state (commonly referred to
as ``full-scope safeguards'') as a condition of approval for
new cooperation agreements; Section 128, which requires a non-
nuclear weapon state recipient of U.S. nuclear exports to have
full-scope safeguards as a prerequisite for licensing U.S.
exports; and Section 129, which requires ending exports if a
non-nuclear weapon state has tested nuclear weapons after 1978.
The Atomic Energy Act contains provisions for the President
to waive the full-scope safeguards requirement for a new
cooperation agreement, but would require submitting the
agreement to the Congress as ``exempt,'' with a determination
that including the requirements would be ``seriously
prejudicial to the achievement of U.S. nonproliferation
objectives or otherwise jeopardize the common defense and
security.'' Such an exempted agreement could only enter into
force with the enactment of a joint resolution of approval of
the House and the Senate.
The Atomic Energy Act also contains a provision for the
President to override a decision by the Congress to halt
exports under the export review provision in Section 128,
requiring the President to determine that foreign policy
interests dictate reconsideration. In addition, the Atomic
Energy Act would allow the President to waive termination of
exports under Section 129, pending a determination that
cessation would be ``seriously prejudicial to the achievement
of U.S. nonproliferation objectives or otherwise jeopardize the
common defense and security.'' Rather than use the waivers
existing already under the Atomic Energy Act, the
Administration requested separate waiver authority in H.R.
4974.
The Administration's proposal in H.R. 4974 sought to
replace the procedure in existing statute for approving
agreements that did not meet all the statutory requirements--a
joint resolution of approval--with routine consideration for
agreements that do meet the requirements. The Committee
rejected this approach in favor of retaining existing
Congressional prerogatives in the Atomic Energy Act.
H.R. 5682 reflects broad agreement among Committee members
that peaceful nuclear cooperation with India can serve multiple
U.S. foreign policy and national security objectives, but must
be approached in a manner that minimizes potential risks to the
nonproliferation regime. Among the most important
considerations are ensuring that NSG guidelines and consensus
decision-making are upheld, and that a U.S. nuclear cooperation
agreement and subsequent U.S. nuclear exports are consistent
with the decisions, policies, and guidelines of the NSG.
The bill requires, as a condition for the President to
exercise his waiver authority, that the NSG agree by consensus
to an exception specifically for India to its guidelines and
that no U.S. exports may be transferred to India that do not
comport with NSG guidelines and decisions. Equally important is
the need to ensure that U.S. cooperation does not assist the
Indian nuclear weapons program, directly or indirectly, in
order to avoid contributing to a nuclear arms race in South
Asia and because of U.S. obligations under the NPT.
As in the Administration's proposed legislation, H.R. 5682
requires the President to determine that India is upholding its
July 18, 2005 commitments as a prerequisite for using his
waiver authority. But the Committee also believes that India's
continued implementation of those commitments is vital to the
health of our bilateral relationship. Therefore, the bill
contains reporting requirements and a provision that calls for
termination of exports in the event of violations of certain
commitments. Lastly, the bill seeks to uphold existing
statutory Congressional oversight of U.S. nuclear cooperation
and exports. At a time when the world appears to be considering
nuclear energy as a viable and desirable alternative to carbon-
based energy sources, oversight of its expansion is crucial.
Hearings
The Full Committee held 5 days of hearings related to this
legislation: September 8, 2005; October 26, 2005; November 16,
2005; April 5, 2006; and May 11, 2006. Testimony was received
from 18 witnesses, including two Members of Congress, and
representatives from 14 organizations.
Committee Consideration
On June 28, 2006, the Committee met in open session and
ordered favorably reported the bill, H.R. 5682, as amended, by
a vote of 37 to 5, a quorum being present.
Votes of the Committee
Clause (3)(b) of rule XIII of the Rules of the House of
Representatives requires that the results of each record vote
on an amendment or motion to report, together with the names of
those voting for or against, be printed in the Committee
Report.
1) To report favorably, as amended--agreed to by a vote of 37-5
Voting yes: Hyde, Gallegly, Ros-Lehtinen,
Rohrabacher, Royce, Chabot, Tancredo, Flake, Green,
Weller, Pence, McCotter, Harris, Wilson, Boozman,
Barrett, Mack, Fortenberry, McCaul, Lantos, Berman,
Ackerman, Faleomavaega, Brown, Sherman, Wexler,
Delahunt, Meeks, Crowley, Berkley, Napolitano, Schiff,
Smith (WA), McCollum, Chandler, Cardoza, and Carnahan.
Voting no: Leach, Smith (NJ), Poe, Lee, and Watson.
2) Berman amendment--to add new subsection 4(b)(8)--India (regarding
fissile material)--defeated by a vote of 13-32
Voting yes: Leach, Smith (NJ), Berman, Brown,
Sherman, Delahunt, Lee, Blumenauer, Napolitano, Schiff,
Watson, McCollum, and Chandler.
Voting no: Hyde, Burton, Gallegly, Ros-Lehtinen,
Rohrabacher, Royce, King, Chabot, Tancredo, Issa,
Flake, Green, Weller, Pence, McCotter, Harris, Wilson,
Barrett, Fortenberry, McCaul, Poe, Lantos, Ackerman,
Faleomavaega, Wexler, Engel, Meeks, Crowley, Berkley,
Smith (WA), Cardoza and Carnahan.
3) Berman amendment--to add new subsection 4(f)--Limitation on Nuclear
Transfers to India--defeated by a vote of 12-31
Voting yes: Leach, Smith (NJ), Fortenberry, Berman,
Brown, Sherman, Lee, Napolitano, Schiff, Watson,
McCollum, and Chandler.
Voting no: Hyde, Burton, Gallegly, Ros-Lehtinen,
Rohrabacher, Royce, King, Chabot, Tancredo, Issa,
Flake, Green, Weller, Pence, McCotter, Harris, Wilson,
Barrett, Mack, McCaul, Poe, Lantos, Ackerman,
Faleomavaega, Engel, Meeks, Crowley, Berkley, Smith
(WA), Cardoza and Carnahan.
4) Sherman amendment--to add new subsection 4(b)(8) and subsection
4(p)--Annual Certification; Termination of Cooperation--
defeated by a vote of 10-32
Voting yes: Leach, Smith (NJ), Fortenberry, Berman,
Sherman, Lee, Napolitano, Schiff, Watson, and McCollum.
Voting no: Hyde, Burton, Gallegly, Ros-Lehtinen,
Rohrabacher, Royce, King, Chabot, Tancredo, Paul, Issa,
Flake, Green, Weller, Pence, McCotter, Harris, Wilson,
Barrett, McCaul, Poe, Lantos, Ackerman, Faleomavaega,
Engel, Meeks, Crowley, Berkley, Smith (WA), Chandler,
Cardoza and Carnahan.
5) Lee amendment--to add new subsection 4(b)(8)--Requiring India to
sign the NPT--defeated by a vote of 4-36
Voting yes: Leach, Smith (NJ), Lee, and Watson.
Voting no: Hyde, Burton, Gallegly, Ros-Lehtinen,
Rohrabacher, Royce, King, Chabot, Tancredo, Paul,
Flake, Green, Weller, Pence, McCotter, Harris, Wilson,
Barrett, Fortenberry, McCaul, Lantos, Berman, Ackerman,
Faleomavaega, Sherman, Engel, Meeks, Crowley, Berkley,
Napolitano, Schiff, Smith (WA), McCollum, Chandler,
Cardoza and Carnahan.
6) Berkley amendment--to add new subsection 4(d)(4)--Prohibition on
U.S. Importation of Indian Spent Nuclear Fuel--defeated by a
vote of 15-19
Voting yes: Leach, McCotter, Ackerman, Sherman,
Wexler, Delahunt, Meeks, Lee, Crowley, Berkley, Schiff,
Watson, McCollum, Chandler and Carnahan.
Voting no: Hyde, Gallegly, Ros-Lehtinen, Rohrabacher,
Royce, Tancredo, Flake, Green, Weller, Pence, Harris,
Wilson, Boozman, Barrett, Fortenberry, McCaul, Poe,
Lantos, and Faleomavaega.
7) Berkley amendment--to add new subsection 3(b)(6)--Regarding spent
nuclear fuel transfers to the U.S.)--agreed to by a vote of 39-
0
Voting yes: Hyde, Leach, Smith (NJ), Gallegly, Ros-
Lehtinen, Rohrabacher, Royce, Chabot, Tancredo, Flake,
Green, Weller, Pence, McCotter, Harris, Wilson,
Boozman, Barrett, Fortenberry, McCaul, Poe, Lantos,
Berman, Ackerman, Faleomavaega, Sherman, Wexler, Meeks,
Lee, Crowley, Berkley, Napolitano, Schiff, Watson,
Smith (WA), McCollum, Chandler, Cardoza and Carnahan.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 5682, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 13, 2006.
Hon. Henry J. Hyde, Chairman,
Committee on International Relations,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5682, the United
States and India Nuclear Cooperation Promotion Act of 2006.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sam
Papenfuss, who can be reached at 226-2840.
Sincerely,
Donald B. Marron, Acting Director.
Enclosure
cc:
Honorable Tom Lantos
Ranking Member
H.R. 5682--United States and India Nuclear Cooperation Promotion Act of
2006
H.R. 5682 would exempt India from the current-law
prohibition on the transfer of nuclear materials and technology
to countries that are not signatories to the Treaty on the Non-
Proliferation of Nuclear Weapons. Under this bill, the United
States could transfer nuclear material and technology to India,
subject to an agreement between the two countries, if the
President certifies that India meets certain conditions. Those
conditions would require India to:
LProvide a credible plan to separate civilian
and military nuclear facilities,
LConclude an agreement with the International
Atomic Energy Agency,
LWork actively with the United States to
prevent proliferation of nuclear enrichment and
reprocessing technology, and
LGain the consensus support of the Nuclear
Suppliers Group, an organization of countries with
nuclear capabilities, for trade in items covered by its
guidelines.
Additionally, in the event an agreement is reached for
nuclear cooperation between India and the United States, the
bill would require the President to submit a report detailing
the basis for determining that India meets all the necessary
requirements. Finally, the bill also would require that the
agreement be approved by a joint resolution of the two Houses
of Congress that has been enacted into law.
CBO estimates that implementing H.R. 5682 would not have a
significant impact on the federal budget. H.R. 5682 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would not affect the budgets
of state, local, or tribal governments.
The CBO staff contact is Sam Papenfuss, who can be reached
at 226-2840. This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Performance Goals and Objectives
The performance goals and objectives are to provide the
President with authority to negotiate a civil nuclear
cooperation agreement, to set conditions that that agreement
must meet to enter into force, and to provide for an expedited
approval process by Congress.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, Section 8, Clause 18 of the
Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title.
Section 1 states that this Act may be cited as the ``United
States and India Nuclear Cooperation Promotion Act of 2006''.
Section 2. Sense of Congress.
Section 2 expresses the Sense of Congress regarding the
nuclear non-proliferation regime and the principles that should
guide the United States in entering into arrangements with a
country that has never been a signatory to the Nuclear Non-
Proliferation Treaty (NPT). Paragraph (1) states that
preventing the proliferation of nuclear weapons, other weapons
of mass destruction (WMD), and the means to deliver these are
critical objectives for United States foreign policy. Paragraph
(2) states that sustaining the NPT and strengthening its
implementation is the keystone of United States non-
proliferation policy. Paragraph (3) states that the NPT has
been a significant success in preventing the spread of nuclear
weapons capabilities to other countries and in maintaining a
stable international security situation. Paragraph (4) states
that countries that have never become a party to the NPT and
remain outside that treaty's legal regime pose a potential
challenge to the achievement of the overall goals of global
nonproliferation because those countries have not undertaken
the NPT's international obligation to prohibit the spread of
dangerous nuclear technologies. Paragraph (5) states that it is
in the interest of the United States to ensure to the fullest
extent possible that those countries that are not signatories
to the NPT act responsibly regarding any nuclear technology
they develop. Paragraph (6) states that it may be in the
interest of the United States to cooperate with a country that
has never signed the NPT with respect to civilian nuclear
technology if that country meets certain criteria.
These criteria include demonstrating responsible behavior
with respect to the nonproliferation of WMD technology and the
means to deliver these weapons; the country has a functioning
and uninterrupted democratic system of government, has a
foreign policy that is congruent with that of the United
States, and is working with the United States in key foreign
policy initiatives related to non-proliferation; such
cooperation induces the country to implement the highest
possible protections against the proliferation of technology
related to weapons of mass destruction and the means to deliver
them and also to refrain from actions that would further the
development of its nuclear weapons program; and that such
cooperation will induce the country to give greater political
and material support to the achievement of U.S. global and
regional nonproliferation objectives, especially with respect
to dissuading, isolating, and, if necessary, sanctioning and
containing states that sponsor terrorism and terrorist groups
and that are seeking to acquire a nuclear weapons capability or
other WMD capability and the means to deliver such weapons.
The Committee intends that the set of principles presented
in this section serve as a guide for possible future civil
nuclear cooperation with any country that has never been a
signatory to the NPT. This section draws upon statements made
by Members of the Committee during hearings on this subject
that any change in our approach to these countries should be
based on such principles and not merely on strategic concerns.
Cooperating with non-NPT countries that meet these criteria and
that have developed a nuclear capacity could serve a number of
non-proliferation goals.
For example, information acquired from these countries'
nuclear policies and programs might be useful in terms of
developing new avenues of research. Cooperation in this area
could include, among other activities, exchanges of data
concerning proliferation-resistant technologies and the safety
of civilian nuclear power generation, including the handling of
spent fuel. This cooperation could serve U.S. national security
interests, even if it did not include restricted data or
sensitive nuclear technology as defined under the Atomic Energy
Act. The Committee understands that the research component of
the U.S.-India civil nuclear agreement is currently under
discussion and looks forward to close and timely consultation
on this matter.
Section 3. Statements of Policy.
Section 3 sets forth two sets of policies of the United
States: those general in nature and those specific to South
Asia.
Subsection (a) states that it shall be the policy of the
United States to:
1. LOppose the development of a capability to produce
nuclear weapons by any non-nuclear weapons state,
within or outside of the Nuclear Non-Proliferation
Treaty (NPT).
2. LEncourage states party to the NPT to interpret the
right to ``develop research, production and use of
nuclear energy for peaceful purposes,'' as described in
Article IV of the NPT, as being a qualified right that
is conditioned by the overall purpose of the NPT to
prevent the spread of nuclear weapons and nuclear
weapons capability. Among other methods, this should
include encouraging NPT states to refrain from all
nuclear cooperation with any state party that has not
demonstrated that it is in full compliance with its NPT
obligations, as determined by the IAEA.
3. LStrengthen the Nuclear Suppliers Group guidelines
concerning consultation by members regarding violations
of supplier and recipient understandings by instituting
the practice of a timely and coordinated response by
NSG members to all such violations, including
termination of all nuclear transfers to an involved
recipient, that discourages individual NSG members from
continuing cooperation with such recipient until such
time as a consensus regarding a coordinated response
has been achieved.
Regarding the second statement relating to the NPT, the
Committee believes that:
LThe NPT was conceived, written, and ratified
by its member countries for the specific and overriding
purpose of preventing the proliferation of nuclear
weapons and nuclear explosive devices, as stated in the
Preamble and its first three Articles;
Lall provisions of the NPT must be interpreted
within the context of preventing the proliferation of
nuclear weapons and nuclear explosive devices; and
LArticle IV conditions a country's
``inalienable right to develop research, production and
use of nuclear energy for peaceful purposes without
discrimination'' on that country's conformity with
Articles I, II, and III which obligate each signatory
``not to manufacture or otherwise acquire nuclear
weapons or other nuclear explosive devices; and not to
seek or receive any assistance in the manufacture of
nuclear weapons or other nuclear explosive devices.''
The Committee further believes that, because the processes
of enriching uranium or separating plutonium for peaceful or
military purposes are essentially identical, they inherently
pose an enhanced risk of proliferation, even under strict
international inspections. Rights under Article IV of the NPT
must be properly understood and exercised only insofar as they
are consistent with preventing the nonproliferation of nuclear
weapons. Therefore, the U.S. cannot recognize a claim by any
non-nuclear country of a right to develop or possess a complete
nuclear fuel cycle if that country has not provided convincing
evidence that its nuclear activities are fully safeguarded from
contributing to a nuclear weapons capability.
This interpretation of Article IV of the NPT is directly
relevant to current efforts by the U.S. and members of the
international community to persuade Iran to end its programs to
develop or acquire an autonomous capacity to enrich uranium or
separate plutonium. This effort has been hindered by the
logical inconsistency that they are attempting to prevent Iran
from exercising an absolute right that they themselves agree
Iran possesses. To eliminate this logical inconsistency and to
prevent other non-nuclear signatories of the NPT from employing
a similar argument to provide a cover for a covert nuclear
weapons program, the U.S. should persuade all countries to
interpret Article IV in the manner outlined above in order to
ensure that the overriding purpose of the NPT of preventing the
proliferation of nuclear weapons is not undermined by illogical
interpretations of its provisions.
Regarding the third statement relating to the NSG, the
Committee holds that the effectiveness of the NSG rests upon
its consensus decision-making, resulting in unified policies of
its members. Consensus decision-making ensures that all states
abide by rules prohibiting exports to restricted states (such
as non-nuclear weapon states outside the NPT) and by rules
restricting certain kinds of exports (such as enrichment and
reprocessing, which the NSG restricts according to policy, not
guidelines). The Committee is mindful that a country outside
the regime that seeks an exception from NSG guidelines could
follow a strategy of concluding agreements with key NSG members
purely to persuade them to support changing the guidelines and
then later discard those agreements while continuing to import
from other NSG members. A single NSG member could prevent any
effort to reimpose the previous restrictions, a position that
expectations of commercial reward, among others, might
encourage. In this scenario, the U.S. could negotiate a deal
with a country that included elaborate restrictions, only to
find that those restrictions were rendered null and void once
the NSG guidelines had been changed and the intended partner
cast the agreement aside, turning to less demanding countries
to provide it with the desired exports and to prevent the NSG
from amending its guidelines. To preclude such a scenario, the
Committee urges the Administration to persuade other NSG
members to act in concert, both in terms of timing, scope, and
content of nuclear supply to all countries, including India. In
particular, the Committee intends that the U.S. act to secure
agreement among NSG members that violations by one country of
an agreement with any NSG member result in joint action by all,
including the termination of all nuclear exports.
Subsection (b) states that, with respect to South Asia, it
shall be U.S. policy to:
1. LAchieve a moratorium on the production of fissile
material for nuclear explosive purposes by India,
Pakistan, and the People's Republic of China at the
earliest possible date;
2. LAchieve the conclusion and implementation of a
treaty banning the production of fissile material for
nuclear weapons to which both the U.S. and India become
parties;
3. LSecure India's full participation in the
Proliferation Security Initiative (PSI), formal
commitment to the PSI's Statement of Interdiction
Principles, public announcement of its decision to
conform its export control laws, regulations, and
policies with the Australia Group and with the
Guidelines, Procedures, Criteria, and Control Lists of
the Wassennaar Arrangement, and demonstration of
satisfactory progress regarding this decision; and
ratification of or accession to the Convention on
Supplementary Compensation for Nuclear Damage;
4. LSecure India's full participation in U.S. efforts
to dissuade, isolate, sanction, and contain Iran for
its efforts to acquire WMDs, including a nuclear
weapons capability and the means to deliver these;
5. LSeek to halt the increase of nuclear weapons
arsenals in South Asia and to promote their reduction
and eventual elimination;
6. LEnsure that spent fuel generated in India's
civilian nuclear power reactors is not transferred to
the U.S. except under procedures in the Atomic Energy
Act; and
7. LEncourage India not to increase its production of
fissile material at unsafeguarded nuclear facilities.
The Committee believes that a U.S.-India nuclear
cooperation agreement marks a turning point in the U.S.-India
relationship, but this does not mean that the United States
should sacrifice its long-standing objectives for non-
proliferation in South Asia. This subsection clearly states
that U.S. policy must be continue to support a fissile material
moratorium in South Asia and a halt to the increase in nuclear
arsenals in the region, among others. In particular, the
Committee believes that India has a significant role to play in
preventing the proliferation of dangerous nuclear technologies
to other countries and believes that India must be a part of
the international effort to prevent Iran from acquiring weapons
of mass destruction in general and nuclear weapons in
particular. The Committee will continue to review India's
behavior in this regard, as well the international community's
demand that Iran suspend uranium-enrichment activities and that
it adhere to the international community's requirements
regarding the terms of any Iranian peaceful use of nuclear
energy.
An annual report by the President on the extent to which
these policy objectives are being achieved is required in
subsection (o).
The Committee notes that in the July 18, 2005, Joint
Statement, India committed to taking on 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.'' It is therefore
imperative that India take steps soon to halt the production of
fissile material for weapons, as four of the five nuclear
weapon states have declared to have done. The Committee
understands that India cannot do this alone, and therefore
urges the U.S. Government to pursue a moratorium by Pakistan
and China as well, as well as a multilateral treaty banning the
production of fissile material for nuclear weapons.
With respect to a treaty banning the production of fissile
material for nuclear weapons, the Committee notes the
longstanding delay of the start of negotiations on such a
treaty at the Conference on Disarmament in Geneva. The
Committee also notes that the Administration's draft treaty
tabled in Geneva in May 2006 does not contain verification
measures, while Indian officials have supported an effectively
verifiable treaty
The Committee believes India's participation in the
Proliferation Security Initiative, the Australia Group and the
Wassennaar Arrangement will be important steps in bringing
India closer to the mainstream of the nonproliferation regime.
In particular, it is critical to secure India's full
participation in U.S. efforts to prevent Iran from acquiring
nuclear weapons, a position held by many members of the
Committee that resonated in several of the hearings held in
relation to this bill. Finally, the Committee heard testimony
from nonproliferation experts who overwhelmingly supported the
need to avoid a nuclear arms race in South Asia as well as the
need to ensure that U.S. assistance does not encourage India to
increase its production of fissile material at unsafeguarded
nuclear facilities. As noted below, the United States has an
obligation under Article I of the NPT not to ``in any way
assist, encourage, or induce a non-nuclear weapon state to
manufacture or otherwise acquire nuclear weapons.'' As
described later in this report, H.R. 5682 contains provisions
that require reports related to that obligation.
Section 4. Waiver Authority and Congressional Approval.
Subsection (a) provides the President with authority to
exempt a civil nuclear agreement with India and nuclear exports
to India from certain sections of the Atomic Energy Act (AEA)
that would otherwise present obstacles to approving and
implementing such an agreement. Specifically, the waiver
authority applies to sections 123 a.(2), 128, and 129. The
authority to waive Section 128, which requires an annual review
by Congress of one export license, shall cease to be effective
if the President determines that India has engaged in any
activity described in section 129 of that Act, other than
section 129 a.(1)(D) or section 129 a.(2)(C) at any time after
the date of the enactment of this Act. This means that
Congressional review of exports would be reinstated in the
event that the President made a finding that India had tested a
nuclear device, terminated or abrogated IAEA safeguards,
materially violated IAEA safeguards, materially violated an
agreement of cooperation with the United States, or assisted,
encouraged or induced a non-nuclear weapon state to engage in
activities involving source or special nuclear material and
having direct significance for the manufacture or acquisition
of nuclear explosive devices. In those cases, per Section 129,
exports to India would likely cease anyway, but this provision
would extend review to the circumstance in which the President
decided to continue exports because he determined that
cessation of exports would be seriously prejudicial to the
achievement of U.S. nonproliferation objectives. The Committee
notes that this authority does not provide in any way for the
President to waive any other requirement of section 123 a. of
the AEA.
In addition, this Act would allow the President to waive
the restrictions of section 129 a.(1)(A) of the AEA for any
activity that occurred on or before July 18, 2005, as well as
section 129 a.(1)(D). This would provide authority to waive a
cutoff in nuclear exports required because of President
Clinton's determination that India had tested a nuclear
explosive device in 1998, while keeping in place the
requirement to cut off exports should India test in the future.
It would also provide waiver authority for cessation of U.S.
nuclear exports to India in the event that the President
determines that India has ``engaged in activities involving
source or special nuclear material and having direct
significance for the manufacture or acquisition of nuclear
explosive devices, and has failed to take steps which, in the
President's judgment, represent sufficient progress toward
terminating such activities.'' India will presumably continue
to produce material for its military nuclear program,
consistent with its separation plan.
Subsection (b) requires the President to make the following
determinations:
1) LIndia has provided the United States and the
International Atomic Energy Agency with a credible plan
to separate civil and military nuclear facilities,
materials, and programs, and has filed a declaration
regarding its civil facilities with the IAEA;
2) LIndia and the IAEA have concluded 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 its separation plan;
3) LIndia 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) LIndia is working actively with the U.S. for the
early conclusion of a multilateral Fissile Material
Cutoff Treaty;
5) LIndia is working with and supporting U.S. and
international efforts to prevent the spread of
enrichment and reprocessing technology;
6) LIndia is taking the necessary steps to secure
nuclear and other sensitive materials and technology,
including through the enactment and enforcement of
comprehensive export control legislation and
regulations, harmonization of its export control laws,
regulations, policies, and practices with the policies
of the Missile Technology Control Regime and the
Nuclear Suppliers Group, and adherence to the MTCR and
NSG in accordance with the procedures of those regimes
for unilateral adherence; and
7) LThe NSG has decided by consensus to permit supply
to India of nuclear items covered by the guidelines of
the NSG, and such decision does not permit civil
nuclear commerce with any other non-nuclear weapon
state that does not have IAEA safeguards on all nuclear
materials within its territory, under its jurisdiction,
or carried out under its control anywhere.
The Committee has strengthened and enhanced the conditions
included in the Administration's original proposal, H.R. 4974,
in order to make certain that measures needed to ensure that
the agreement can safely come into force are in place; e.g., a
safeguards agreement negotiated with the IAEA, and that India
has fulfilled key obligations it has freely undertaken in its
July 18, 2005 statement and in subsequent statements. The
Committee recognizes that a number of these conditions will
require a considerable expenditure of effort and resources to
satisfy, such as the negotiation of an Additional Protocol that
must be tailored to India's unique needs, and for that reason
has allowed for significant latitude regarding their
completion. But the Committee believes that none of these
conditions, either singly or in combination with others, is
onerous. In addition, although it did not impose rigorous
measurements or deadlines, the Committee intends that
considerable substantive progress on the forgoing measures can
be easily demonstrated, including India's cooperation with the
U.S. to prevent the spread of enrichment and reprocessing
technology and its taking steps to strengthen its export laws
and regulations. Regarding the NSG, the Committee intends that
nothing be done in connection with this legislation or any
subsequent act or policy to weaken the NSG's irreplaceable role
in the global nonproliferation regime. To that end, the
Committee has specified that the U.S. must continue to support
the traditional practice by NSG members of taking decisions on
the basis of consensus, defined as unanimous consent. This is
consistent with statements by senior Administration officials.
With respect to the requirement that India provide a
credible separation plan for its civilian and military nuclear
facilities, the Committee strongly urges the Administration to
develop a clear definition of the term ``credible'' and to
encourage India to interpret this to mean, among other aspects,
that personnel, equipment, and nuclear weapons-relevant
information is not transferred between the safeguarded civilian
and unsafeguarded military sectors.
Given that IAEA safeguards cannot prevent the diversion of
information and technical knowledge, and that a significant
portion of India's nuclear fuel cycle will remain outside of
those safeguards, it is essential to ensuring that the United
States meets its Article I obligation under the NPT that
effective barriers are put in place to prevent the transfer of
potentially useful information and personnel from the
safeguarded to the unsafeguarded sector.
Subsection (c) requires the President to submit to the
House International Relations Committee and the Senate Foreign
Relations Committee a report regarding this determination that
includes:
1) Lsummaries and copies of India's separation plan and
of its declaration of which of its civil nuclear
facilities will be placed under IAEA safeguards,
including an analysis of the credibility of the plan
and declaration;
2) La summary of the safeguards agreement between India
and the IAEA, including a copy of the agreement and a
description of progress toward its full implementation;
3) La summary and description of the progress made
toward concluding and implementing an Additional
Protocol between India and the IAEA;
4) La description of the steps India is taking to work
with the U.S. for the conclusion of a multilateral
treaty banning the production of fissile material for
nuclear weapons, including a description of the steps
the U.S. 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;
5) La 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 nuclear weapons
technology, as well as the support that India is
providing to the U.S. to restrict the spread of such
technology;
6) La 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
and adherence to MTCR, NSG, Australia Group, and
Wassennaar guidelines, as well as United Nations
Security Council Resolution 1540, and participation in
the Proliferation Security Initiative;
7) La description of the NSG decision regarding India,
including whether the U.S.-India civil nuclear
cooperation agreement is consistent with the decision,
practices, and policies of the NSG;
8) La description of the scope of peaceful cooperation
envisioned by the U.S. and India that will be
implemented under the Agreement for Nuclear
Cooperation, including whether such cooperation will
include the provision of enrichment and reprocessing
technology; and
9) La description of the steps taken to ensure that
U.S. nuclear assistance will not directly or indirectly
assist India's nuclear weapons program, including the
use of any U.S. equipment, technology, or nuclear
material by India in an unsafeguarded nuclear facility
or nuclear-weapons related complex; the replication and
subsequent use of any U.S. technology in an
unsafeguarded nuclear facility or unsafeguarded nuclear
weapons-related complex, or for any activity related to
the research, development, testing, or manufacture of
nuclear explosive devices; and the provision of nuclear
fuel in such a manner as to facilitate the increased
production of highly-enriched uranium or plutonium in
unsafeguarded nuclear facilities.
The Committee notes that several members expressed concern
about the possibility that the provision of nuclear technology
and nuclear fuel supplies to India could indirectly assist or
encourage India's nuclear weapons program. To foreclose this
possibility and to increase confidence that no such
developments will take place, the bill includes the reporting
requirement in subsection (c) (9). The report should address
the potential replication of U.S.-origin nuclear technology in
unsafeguarded nuclear facilities in India, as well as address
the possible utilization of foreign nuclear fuel supplies in
such a manner that leads to the increased production of fissile
material in India's unsafeguarded nuclear facilities using
domestic uranium reserves. Further, the Committee notes with
concern India's reported plans for building a third dedicated
military production reactor in the near future to replace the
CIRUS reactor scheduled for shutdown in 2010 and urges the
Administration to encourage India to exercise the utmost
restraint with respect to its nuclear weapons program.
Subsection (d) provides that:
1) Lnothing in this Act shall be interpreted as
permitting any civil nuclear cooperation between the
U.S. and India that would in any way assist, encourage,
or induce India to manufacture of otherwise acquire
nuclear weapons or nuclear explosive devices;
2) Lno item subject to the transfer guidelines of the
NSG may be transferred to India if such transfer would
violate the guidelines in effect on the date of the
transfer;
3) Lexports of nuclear and nuclear-related material,
equipment, or technology to India shall be terminated
if India makes any materially significant transfer of
nuclear or nuclear-related material, equipment, or
technology that does not conform to NSG guidelines or
ballistic missiles or missile-related equipment or
technology that does not conform to MTCR guidelines,
unless the President determines that cessation of such
exports would be seriously prejudicial to the
achievement of U.S. nonproliferation objectives or
otherwise jeopardize the common defense and security;
and
4) Lthe President should seek to prevent the transfer
to India of nuclear equipment, materials, or technology
from other participating governments in the NSG or from
any other source, if nuclear transfers to India are
restricted pursuant to this Act.
The Committee notes that the legislation includes an
important requirement that a U.S.-Indian agreement for nuclear
cooperation shall be terminated if India makes any transfer
that does not conform with the guidelines of the NSG or MTCR.
This is necessary to provide confidence that India is meeting
other key obligations outlined in the July 18, 2005, Joint
Statement. Failure to conform to these nuclear and missile
export control guidelines would represent a failure by India to
meet the nonproliferation standards expected of other
responsible states. However, waiver authority of this sanction
is granted to the President.
The Committee notes that the legislation allows for certain
narrow exemptions for India from certain requirements of the
Atomic Energy Act, but expects that the Section 123 Agreement
for Nuclear Cooperation now being negotiated with the
Government of India is otherwise consistent with other Atomic
Energy Act requirements. In addition, the Committee notes that
it is the well-established policy of the United States not to
transfer sensitive nuclear technology, including reprocessing
or enrichment technology, to any state. As President Bush said
in February 2004, ``enrichment and reprocessing are not
necessary for nations seeking to harness nuclear energy for
peaceful purposes.'' Moreover, in answers to questions for the
record posed by Senator Lugar on April 5, 2006, the
Administration responded that ``Transfers to India would still
have to meet all the other requirements of NSG Guidelines,
including . . . Restraint in transferring to India sensitive
facilities, technology and material usable for nuclear weapons
or other nuclear explosive devices (including enrichment or
reprocessing facilities, equipment or technology.'' The
Administration also responded in another question for the
record posed by Senator Lugar that:
``We have also indicated to our NSG partners that we do
not intend to transfer enrichment or reprocessing
technologies. Our bilateral agreement will not permit
such transfers to be made under it.''
The Committee finds that no part of this legislation should
be interpreted to allow for any exception to this policy.
As stated above, the Committee believes the NPT is the
keystone of U.S. nonproliferation policy and must be sustained
and strengthened. The United States has always abided by its
obligation under Article I of the NPT to not in any way assist,
encourage, or induce non-nuclear weapon states to manufacture
or otherwise acquire nuclear weapons or nuclear explosive
devices. The Nuclear Nonproliferation Act of 1978 set a
standard almost thirty years ago for the United States in its
civil nuclear cooperation with non-nuclear weapon states by
requiring those states to have full-scope safeguards. In making
an exception for a future nuclear cooperation agreement with
India in this bill, it is paramount to ensure that nothing in
our cooperation would undermine our commitment to abide by
Article I of the NPT. Subsection 4 (d)(1) underscores this view
held by the Committee.
Subsection 4(d)(2) is one of several provisions in the bill
intended to ensure that any civil nuclear cooperation between
the United States and India strengthens rather than weakens the
global nuclear nonproliferation regime. This provision
contributes to the achievement of this objective by prohibiting
the transfer to India of any item the transfer of which is
subject to (1) the U.S.-India Agreement for Cooperation, (2)
the Guidelines for Nuclear Transfers (INFCIRC/254, Part 1) of
the Nuclear Suppliers Group (NSG), or (3) the Guidelines for
Transfers of Nuclear-Related Dual-Use Equipment, Materials,
Software and Related Technology (INFCIRC/254, Part 2) of the
NSG, if such transfer would violate, or otherwise be
inconsistent with, either of the aforementioned transfer
guidelines of the NSG as in effect on the date of the transfer.
No waiver authority is provided to permit transfers to be made
notwithstanding this restriction.
This restriction will ensure that U.S.-India nuclear
cooperation continues to be carried out in a manner consistent
with the transfer guidelines and policies of the NSG. The
Administration has expressed confidence that the NSG will
adjust its guidelines in order to permit civil nuclear
cooperation along the lines contemplated by the July 18, 2005,
Joint Statement of President Bush and Prime Minister Singh.
Further, Secretary of State Condoleezza Rice has publicly
assured Congress, by means of a letter dated June 28, 2006, to
Senate Foreign Relations Committee Chairman Richard Lugar,
that:
. . . in carrying out the laws and regulations of the
United States governing the export of nuclear-related
items, the United States Government will continue to
act in accordance with IAEA INFCIRC/254, as amended,
the Guidelines and Annexes of the Nuclear Suppliers
Group. The U.S. will also continue to act within the
policies and practices of the decisions taken by the
Nuclear Suppliers Group with respect to India. We
intend to do so notwithstanding any contrary actions by
any other participating countries in the Nuclear
Suppliers Group.
Implicit in both the policy assurances provided to Congress
by Secretary Rice and the restrictions of section 4(d)(2) is
the risk that the United States will be unable to fully
implement the vision of U.S.-India civil nuclear cooperation
set forth in the July 18, 2005, Joint Statement of President
Bush and Prime Minister Singh to the degree that the NSG fails
to adjust its guidelines to permit implementation of that
vision. This would be a most regrettable outcome, but
preferable to one in which NSG transfer guidelines were ignored
or violated and fell into disuse. Both the Administration and
the Congress recognize that the NSG transfer guidelines are a
critically important element of the global nuclear
nonproliferation regime, and as such, the United States has an
overriding national interest in ensuring the preservation and
continued vitality of those guidelines. The object of section
4(d)(2) is to embed this principle into U.S. law.
Subsection 4(d)(3) reflects the importance the Committee
attaches to the commitments India has undertaken in the July
18, 2005 Joint Statement wherein India agreed to secure its
nuclear materials and technology through comprehensive export
control legislation and through harmonization and adherence to
MTCR and NSG guidelines. These two steps are critical to
bringing India closer to the nonproliferation mainstream, one
of the benefits attributed to U.S. nuclear cooperation with
India by the Administration. Moreover, failure to conform with
these nuclear and missile export control guidelines would
represent a failure by India to meet the nonproliferation
standards expected of other responsible states.
Acknowledging that no export control system is perfect, the
Committee has made the threshold of violation one of material
significance, and provided the President with the authority to
waive termination of exports if he finds that such a
termination would be seriously prejudicial to achieving U.S.
nonproliferation objectives or otherwise jeopardize the common
defense and security. The Committee believes that the threshold
for the waiver, given its expectation that India will prove to
be a valuable partner in the nonproliferation regime, is a
reasonable standard to meet.
Section 4(d)(4) provides that, in the event that U.S.
exports must be terminated to India, the President should seek
to prevent the transfer to India of nuclear equipment, material
or technology from other sources. This bill makes clear that if
the President finds that India engaged in activities that would
result in termination of nuclear exports under Section 129
(e.g., a nuclear test explosion, termination or abrogation of
IAEA safeguards, material violation of IAEA safeguards or an
agreement of cooperation with the United States, assistance or
encouragement of a non-nuclear weapon state in nuclear-weapons
related activities, or reprocessing-related activities) or if
India does not uphold its July 18, 2005 Joint Statement
commitments, U.S. nuclear assistance could be jeopardized.
The Committee notes with concern the statements made by the
Indian Prime Minister to the Indian Parliament on March 6,
2006, that the U.S. Government has said it will take steps that
include:
1) Lincorporating assurances regarding fuel supply in a
bilateral Indo-U.S. agreement on peaceful uses of
nuclear energy which would be negotiated;
2) Ljoining India in seeking to negotiate with the IAEA
an India-specific fuel supply agreement; and
3) Lsupporting an Indian effort to develop a strategic
reserve of nuclear fuel to guard against any disruption
of supply over the lifetime of India's reactors.
In addition, if, despite these arrangements, a disruption
of fuel supplies to India occurs, the U.S. will, with India,
jointly convene a group of friendly supplier countries, such as
Russia, France and the United Kingdom, to pursue such measures
as would restore fuel supply to India. The Committee has been
assured that such assurance of supply arrangements that the
U.S. is party to will only be concerned with disruption of
supply of fuel due to market failures or other reasons, and not
due to Indian actions that are inconsistent with the July 18,
2005 commitments, such as a nuclear explosive test.
Subsection (e) provides that a U.S.-India civil nuclear
cooperation agreement may only become effective if: 1) the
President submits to Congress the agreement reached between the
United States and India, including a copy of the safeguards
agreement entered into between the IAEA and India relating to
India's civil nuclear facilities, in accordance with the
requirements and procedures of section 123 of the AEA that are
otherwise not inconsistent with the provisions of this Act, and
2) the agreement is approved by a joint resolution that is
enacted into law. In addition, the President is urged to
consult with the House International Relations Committee and
the Senate Foreign Relations Committee each month after the
enactment of this Act on the status of the negotiations
regarding the civil nuclear cooperation agreement and the
negotiations between the IAEA and India regarding the
safeguards agreement.
The Committee believes that the existing statutory
congressional oversight provided in Section 123 of the Atomic
Energy Act is necessary to achieve balance between the
executive and legislative branches in undertaking significant
nuclear cooperation and therefore retains the approval
procedures in those sections of law, in contrast to the
Administration's proposed legislation (H.R. 4974). This
subsection makes clear that the special procedures in this Act
only apply to a U.S.-India Nuclear Cooperation Agreement under
section 123 of the AEA that meets all the requirement of that
section other than 123 a. (2). If the final agreement does not
fulfill other requirements in that section, then subsection (e)
has not been complied with and the expedited procedures
provided for in this section shall not apply to such an
agreement. However, in that case, the President may follow the
path in existing law and submit the agreement under the
procedures of Atomic Energy Act for agreements that do not meet
such requirements, as provided in subsection (m). It is the
Committee's understanding and its intent that the procedures
under this Act that are used to approve a U.S.-India nuclear
cooperation agreement will not be available for use for any
future amendment of such an agreement.
Subsection (f) prescribes the form of the joint resolution
to approve the U.S.-India Nuclear Cooperation Agreement as a
simple resolution without a preamble.
Subsection (g) provides that the resolution will be
introduced by the House and Senate majority and minority
leaders or their designees and will be referred to this
Committee and the Senate Foreign Relations Committee.
Subsection (h) provides that if the joint resolution
described in subsection (g) has not been reported by the
relevant committee at the end of 60 legislative days beginning
on the date of its introduction or the date of the submission
of the nonproliferation statement required by section 123 of
the Atomic Energy Act of 1954, whichever is later, such
committee shall be discharged from further consideration of the
joint resolution.
Subsection (i) provides for expedited consideration of any
such legislation by the House. Paragraph (1) provides that on
the third calendar day after the relevant Committee has
reported out the joint resolution or after 60 legislative days
has passed since the introduction and referral of the joint
resolution described in subsection (g), any member of the House
may make a privileged motion to proceed to the joint
resolution.
Paragraph (2) of subsection (i) provides that debate on the
resolution shall be limited to six hours equally divided
between proponents and opponents, and during debate the joint
resolution shall not be amendable.
Paragraph (3) of subsection (i) provides that appeals from
the decisions of the Chair shall be decided without debate.
Subsection (j) provides that floor consideration of the
joint resolution by the Senate shall be in accordance with
section 601(b)(4) of the International Security Assistance and
Arms Export Control Act of 1976.
Subsection (k) provides the procedure in the event that one
House acts prior to the other. In both cases, the final vote of
the House in prior receipt of the joint resolution from the
other House shall be considered to be a vote on joint
resolution of the other House. This subsection ensures that
once voted on by one House, the vote in the second House will
immediately send the resolution to the President.
Subsection (l) provides that the 60 legislative days
referred to in subsection (h) shall exclude days on which
either House is not in session because of an adjournment of
more than three days.
Subsection (m) provides that the procedures described in
this Act do not preclude approval of an India agreement on the
unmodified provisions of section 123 of the Atomic Energy Act.
This provision is intended to ensure that notwithstanding the
conditionality described in subsection (e)(1), the President
may determine that he cannot meet the procedures of this
section (because, for example, he cannot meet a number of
requirements of section 123 a. of such Act) and will use
instead the procedures prescribed in the existing Atomic Energy
Act.
Subsection (n) provides that the procedures of this section
shall cease to be effective upon the enactment of a joint
resolution under this section. No other agreement or amendment
of an agreement shall be subject to the waiver and the
expedited procedures described in this joint resolution. Such
agreements or amendments will have to follow the requirements
of the existing Atomic Energy Act.
The Committee decided to reject the Administration's
proposed method of Congressional consideration of a negotiated
agreement as intending to effectively remove Congress from any
substantive role. Given the unique and controversial nature of
the proposed civil nuclear cooperation agreement and the fact
that Congress was not consulted regarding the negotiations
between the Administration and the Indian government relating
to the original announcement of their intention to negotiate
such an agreement, Congressional scrutiny and approval was
deemed essential to protect U.S. interests. Careful and
extensive consideration was accorded by Committee members and
staff to various methods by which that process could best
occur, with a consensus agreeing to require passage of a joint
resolution of approval by both the House and Senate to permit
the agreement to take effect. Although there was considerable
support for allowing amendments to the resolution, it was
decided that this possibility would render the negotiation of
an agreement of such complexity effectively impossible.
Direct Congressional involvement, especially the
requirement for its approval, is also necessary to ensure that
the pledges and assurances made by the Administration and the
Indian government are actually met and not rendered irrelevant
through lack of action or discontinuation of interest. Without
enforcement provisions, such statements are obviously little
more than promises that may be modified at will, or even
abandoned altogether, should circumstances change.
Although the President plays a key role in the formulation
and implementation of foreign policy, the Constitution
nevertheless vests Congress with considerable powers and
responsibilities in the areas of foreign policy and national
security, which its Members are obligated to carry out.
Fidelity to that trust means that Congress cannot delegate
those responsibilities to the executive branch or allow itself
to be made irrelevant to government policy in any area. The
Committee believes this legislation reestablishes the proper
balance between the two branches regarding the U.S. entering
into substantive agreements with other countries and also
reinforces the shared authority and mutual respect necessary to
advance the security and interests of the American people.
Subsection (o), Paragraph (1), provides that the President
submit a report no later than January 31, 2007, and every year
thereafter on the extent to which the policy objectives in
section 3(b) have been achieved, the steps taken by the U.S.
and India in the preceding calendar year to accomplish those
objectives, the extent of cooperation by other countries in
achieving those objectives, and the steps the U.S. will take in
the current calendar year to accomplish those objectives.
Paragraph (2) provides that no later than one year after
the agreement for nuclear cooperation takes effect, and every
year thereafter, the President submit a report describing U.S.
nuclear exports to India in the preceding year and the
anticipated exports in the next year. This report shall
include, (in a classified form if necessary), an estimate for
the previous year of the amount of uranium mined in India, the
amount that has likely been used of allocated for the
production of nuclear explosive devices, the rate of production
of nuclear explosive devices and of fissile material for those
devices, and an analysis as to whether imported uranium has
affected such rate of production of these devices. In addition,
the report shall include: a description of whether U.S. civil
nuclear assistance to India is in any way assisting India's
nuclear weapons program, including the use of equipment,
technology, or nuclear material in an unsafeguarded nuclear
facility; the replication and use of U.S. technology in an
unsafeguarded nuclear facility or for any activity related to
the research, development, testing, or manufacture of nuclear
explosive devices; and the provision of nuclear fuel in such a
manner as to facilitate the production of highly-enriched
uranium or plutonium in unsafeguarded facilities. This
reporting requirement is designed to determine whether any
natural uranium, nuclear fuel or nuclear technology provided by
the United States or other countries has led to the ability of
India to increase its ability to produce fissile material for
its nuclear weapons program. While India undoubtedly will make
its own judgments regarding its national security interests,
the international community should try to ensure that peaceful
civil cooperation with India does not result in an increase in
its nuclear arsenal.
Paragraph (3) provides that one year after this agreement
has been enacted and every year thereafter the President shall
submit a report describing any new nuclear reactors of nuclear
facilities that the Government of India has designated as
civilian and placed under inspections or has designated as
military.
Paragraph (4) provides that one year after this agreement
has been enacted and every year thereafter the President shall
submit a report describing the disposal of spent nuclear fuel
from India's civilian nuclear program.
Subsection (p) provides definitions used in this Act.
Agency Views
At the time the report was filed, no formal views were
available.
New Advisory Committees
H.R. 5682 does not establish or authorize any new advisory
committees.
Congressional Accountability Act
H.R. 5682 does not apply to the legislative branch
Federal Mandates
H.R. 5682 provides no Federal mandates.
Additional Views
H.R. 5682 is far from perfect, but it is a substantial
improvement over the Administration's legislative proposal.
Most importantly, this legislation ensures that Congress
must approve a nuclear cooperation agreement with India by an
affirmative majority vote and requires that the Administration
provide copies of the cooperation agreement and the safeguards
agreement negotiated between India and the International Atomic
Energy Agency (IAEA) before we take that vote.
My strong preference was to give Congress the ability to
amend the cooperation agreement, but that proved to be
incompatible with the expedited procedures this bill
establishes for Congressional consideration of the agreement.
Also on the positive side, this bill precludes the
President from waiving some very important provisions in the
Atomic Energy Act that place conditions on India's handling of
nuclear materials received from the United States and provides
for the termination of nuclear cooperation in the event that
India resumes nuclear testing, violates its IAEA safeguards
agreement, or violates the terms of our bilateral nuclear
cooperation agreement.
It requires the Nuclear Suppliers Group (NSG) to approve an
exemption for India before Congress votes on the cooperation
agreement. The NSG decision must be made by consensus, the
standard practice for that organization.
It directs the President to take steps to prevent other
countries from making nuclear transfers to India if India takes
certain actions, such as testing a nuclear weapon or violating
IAEA safeguards, that lead to a termination of U.S. nuclear
exports.
And finally, the bill includes language I proposed
prohibiting nuclear transfers to India if, after having agreed
to adhere to NSG and Missile Technology Control Regime (MTCR)
guidelines, India exports items to other countries that violate
those guidelines.
Nevertheless, despite the inclusion of the aforementioned
provisions, H.R. 5682 has some serious deficiencies. Most
importantly, it does nothing to limit India's production of
fissile material for nuclear weapons.
I accept the fact that India has nuclear weapons and will
not sign the Nuclear Non-Proliferation Treaty (NPT).
Nevertheless, I believe there is great value in restraining
India's ability to produce additional plutonium and highly
enriched uranium. Let me cite three reasons.
First, if we are going to change the internationally
accepted rules on nuclear trade for one country--rules that the
United States, more than any other nation, is responsible for
putting in place--then I believe we need a compelling
nonproliferation ``gain'' to justify those changes.
India's other nonproliferation commitments in the context
of this nuclear deal--applying stringent export controls,
adhering to NSG and MTCR guidelines, accepting IAEA safeguards
on civilian facilities, among others--are positive steps in the
right direction. But they are, for the most part, either a
reflection of India's existing policies or largely symbolic. In
my view, only a halt on fissile material production would make
this deal ``a net plus for nonproliferation.''
The second argument for requiring India to stop producing
fissile material is the impact this agreement could have on
India's neighbors.
The vast majority of nonproliferation experts--both
Republicans and Democrats--believe this agreement will enable
India to increase its production of fissile material. Why?
Because India now faces a shortage of domestic uranium and is
forced to make a choice between generating electricity and
making bombs.
If and when the NSG decides to make an exemption for India
and Congress approves the nuclear cooperation agreement, then
India will be able to purchase uranium and other types of
reactor fuel on the international market and will no longer
face this dilemma. From that point on, India will be free to
devote all of its domestic uranium supply to its weapons
programs, if it so chooses.
American nonproliferation experts are not the only ones
making this argument. Some of their Indian counterparts are
saying exactly the same thing. For example, in an article
recently published in the New Delhi Indian Defense Review, a
former high-level official in India's intelligence service
argues that this deal will allow India to produce about 50
bombs a year--a significant increase over current estimates.
This is not to say that India will immediately begin a
massive buildup of nuclear arms. But it will have the
capability to do so. And that is a critical point for China and
Pakistan, which will inevitably make their own strategic
decisions based on worst-case assessments of India's arsenal.
In other words, many experts believe this deal will likely
lead Pakistan--and possibly China--to build more of their own
nuclear weapons.
With all due respect to President Musharraf, the last thing
any of us should want is a Pakistan with even more fissile
material and nuclear weapons than it already has. Nowhere else
in the world is there a greater risk of radical Islamist
terrorists getting their hands on weapons of mass destruction.
A third argument for limiting the production of fissile
material is India's commitment in the July 18, 2005 Bush-Singh
joint statement to ``assume the practices and
responsibilities'' of other advanced nuclear powers.
Four of the five recognized nuclear weapons states--the
United States, Great Britain, France, and Russia--have stopped
producing fissile material for nuclear weapons as a matter of
policy. The fifth, China, is also believed to have halted
production. It is hard to think of a more important
``practice'' for India to assume.
The underlying bill includes language expressing the
importance of achieving a moratorium on fissile material
production in South Asia. Unfortunately, this is contained in
the ``Statements of Policy'' section, which is essentially
meaningless from a legal standpoint.
Another provision in the bill requires the President to
determine that ``India is working actively with the United
States for the conclusion of a multilateral Fissile Material
Cutoff Treaty'' (FMCT). This sounds good on the surface, but in
many ways this too is largely devoid of meaning.
The U.S. recently introduced a draft FMCT at the Conference
on Disarmament in Geneva. This draft did not include a
verification mechanism because the Administration's view is
that such a treaty is inherently unverifiable. The Indian
position, on the other hand, is that an FMCT must include a
verification mechanism.
Given that our two governments have diametrically opposed
views regarding verification issues, it isn't clear to me that
the Indian commitment to work with us for the conclusion of
such a treaty has much practical value.
At the Committee markup of H.R. 5682, I offered two
amendments designed to limit India's production of fissile
material for nuclear weapons. Regrettably, both of them were
voted down.
The first amendment would have required the President to
determine that India had halted the production of fissile
material before he would be permitted to waive key provisions
in the Atomic Energy Act and submit a nuclear cooperation
agreement to Congress.
India could meet this requirement in three different ways.
First, it could declare a unilateral moratorium on the
production of fissile material. Second, it could adhere to a
multilateral moratorium, together with China and Pakistan (and
possibly other countries). Or third, it could sign and adhere
to a multilateral FMCT, if and when such a treaty is concluded.
The second amendment was based on a proposal made by former
Senator Sam Nunn, one of our nation's most respected voices on
nonproliferation issues. It would have allowed exports of
nuclear reactors, components, and other technology to India as
soon as the conditions in H.R. 5682 were met. But it also would
have restricted transfers of uranium and other types of nuclear
reactor fuel until the President determined that India had
stopped the production of fissile material.
In considering these amendments and other critical issues
related to the nuclear deal which have been negotiated with
little or no input from, or consultation with, Congress, I
would suggest that the most important question one should ask
is not whether these are perceived as ``deal killers'' or will
be acceptable to the Indian side. Instead, the real test should
be whether they are good policy and serve American national
security interests. And on both counts, I would argue that they
do.
I strongly support efforts to deepen the U.S.-India
strategic partnership, and in that context, I welcome civilian
nuclear cooperation. But such cooperation must strike the
appropriate balance between two compelling U.S. national
interests: strengthening our relationship with this growing
power and preserving meaningful, internationally-accepted rules
on nuclear nonproliferation.
As H.R. 5682 moves through the legislative process, I will
continue my efforts to achieve that balance.
Howard L. Berman.