112th Congress Rept. 112-507
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
TO AMEND THE ATOMIC ENERGY ACT OF 1954 TO REQUIRE CONGRESSIONAL
APPROVAL OF AGREEMENTS FOR PEACEFUL NUCLEAR COOPERATION WITH FOREIGN
COUNTRIES, AND FOR OTHER PURPOSES
_______
May 30, 2012.--Ordered to be printed
_______
Ms. Ros-Lehtinen, from the Committee on Foreign Affairs, submitted the
following
R E P O R T
[To accompany H.R. 1280]
[Including cost estimate of the Congressional Budget Office]
The Committee on Foreign Affairs, to whom was referred the
bill (H.R. 1280) to amend the Atomic Energy Act of 1954 to
require congressional approval of agreements for peaceful
nuclear cooperation with foreign countries, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
TABLE OF CONTENTS
Page
The Amendment.................................................... 2
Background and Purpose........................................... 6
Hearings......................................................... 13
Committee Consideration and Votes................................ 13
Committee Oversight Findings..................................... 14
New Budget Authority and Tax Expenditures........................ 14
Congressional Budget Office Cost Estimate........................ 14
Performance Goals and Objectives................................. 16
New Advisory Committees.......................................... 16
Congressional Accountability Act................................. 16
Earmark Identification........................................... 16
Section-by-Section Analysis...................................... 16
Changes in Existing Law Made by the Bill, as Reported............ 20
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. REQUIREMENT FOR CONGRESSIONAL APPROVAL OF AGREEMENTS FOR
PEACEFUL NUCLEAR COOPERATION.
(a) Cooperation With Other Nations.--Section 123 of the Atomic Energy
Act of 1954 (42 U.S.C. 2153) is amended--
(1) in the matter preceding subsection a., by striking ``No
cooperation'' and inserting ``Subject to subsection f., no
cooperation'';
(2) in subsection a.--
(A) in paragraph (3), by inserting ``or acquired from
any other source'' after ``pursuant to such agreement''
each place it appears;
(B) in paragraph (4)--
(i) by striking ``or terminates or'' and
inserting ``, terminates,''; and
(ii) by inserting ``, or violates or
abrogates any provision contained within such
agreement'' after ``IAEA safeguards'';
(C) in paragraph (6), by inserting ``or acquired from
any other source'' after ``agreement'' each place it
appears;
(D) in paragraph (8), by striking ``and'' at the end;
(E) in paragraph (9), by striking the period at the
end and inserting a semicolon; and
(F) by inserting after paragraph (9) the following
new paragraphs:
``(10) a guaranty by the cooperating party that no
nationals of a third country shall be permitted access
to any reactor, related equipment, or sensitive
materials transferred under the agreement for
cooperation without the prior consent of the United
States; and
``(11) a commitment to maintain and, in the case of a
country without such a legal regime in place, a
commitment to enact at the earliest possible date, and
in no case later than one year after the agreement
enters into force, a legal regime providing for
adequate protection from civil liability that will
allow for the participation of United States suppliers
in any effort by the country to develop civilian
nuclear power.'';
(3) in the matter following paragraph (11) (as added by
paragraph (2)(F) of this subsection), by striking ``The
President may exempt a proposed agreement for cooperation'' and
all that follows through ``common defense and security.'';
(4) in subsection c., by striking ``and'' at the end;
(5) in subsection d.--
(A) in the first sentence--
(i) by striking ``not'' the first and second
place it appears;
(ii) by inserting ``only'' after
``effective'' the first place it appears; and
(iii) by striking ``: Provided further,'' and
all that follows through ``such agreement'' and
inserting ``, unless the proposed agreement
includes a requirement as part of the agreement
for cooperation or other legally binding
document that is considered part of the
agreement that no enrichment or reprocessing
activities, or acquisition or construction of
facilities for such activities, will occur
within the territory over which the cooperating
party exercises sovereignty, in which case the
agreement shall become effective unless the
Congress adopts, and there is enacted, a joint
resolution of disapproval (1) during such
sixty-day period for a new agreement; or (2)
during a period of 30 days of continuous
session for a renewal agreement''; and
(B) by striking the final period and inserting ``;
and'';
(6) by redesignating subsection e. as subsection f.;
(7) by inserting immediately after subsection d. the
following new subsection:
``e. the cooperating party--
``(1) has acceded to and is fully implementing the
provisions and guidelines of--
``(A) the Convention on the Prohibition of
the Development, Production, Stockpiling and
Use of Chemical Weapons and on their
Destruction (commonly known as the `Chemical
Weapons Convention');
``(B) the Convention on the Prohibition of
the Development, Production and Stockpiling of
Bacteriological and Toxin Weapons and on their
Destruction (commonly known as the `Biological
Weapons Convention'); and
``(C) all other international agreements to
which the United States is a party regarding
the export of nuclear, chemical, biological,
and advanced conventional weapons, including
missiles and other delivery systems;
``(2) has established and is fully implementing an
effective export control system, including fully
implementing the provisions and guidelines of United
Nations Security Council Resolution 1540;
``(3) is in full compliance with all United Nations
conventions to which the United States is a party and
all Security Council resolutions regarding the
prevention of the proliferation of weapons of mass
destruction, including--
``(A) the Convention on the Physical
Protection of Nuclear Material; and
``(B) the United Nations International
Convention for the Suppression of Acts of
Nuclear Terrorism;
``(4) is not a Destination of Diversion Concern under
section 303 of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (Public Law
111-195);
``(5) is closely cooperating with the United States
to prevent state sponsors of terrorism (the term `state
sponsor of terrorism' means a country the government of
which has been determined by the Secretary of State,
for purposes of section 6(j) of the Export
Administration Act of 1979, section 620A of the Foreign
Assistance Act of 1961, section 40 of the Arms Export
Control Act, or other provision of law, is a government
that has repeatedly provided support for acts of
international terrorism) from--
``(A) acquiring or developing chemical,
biological, or nuclear weapons or related
technologies; or
``(B) acquiring or developing destabilizing
numbers and types of advanced conventional
weapons, including ballistic missiles; and
``(6) has signed, ratified, and is fully implementing
an Additional Protocol to its safeguards agreement with
the International Atomic Energy Agency.''; and
(8) by adding after subsection f. (as redesignated by
paragraph (6) of this subsection) the following new subsection:
``g. For purposes of this section--
``(1) the term `new agreement' means an agreement for
cooperation with a country with respect to which the
United States has not, on or after the date of the
enactment of this subsection, entered into such an
agreement; and
``(2) the term `renewal agreement' means an agreement
for cooperation with a country with respect to which
the United States has, before the date of the enactment
of this subsection, entered into such an agreement.''.
(b) Subsequent Arrangements.--Section 131 a. (1) of such Act (42
U.S.C. 2160 a.(1)) is amended--
(1) in the second sentence, by striking ``security,'' and all
that follows through ``publication.'' and inserting
``security.''; and
(2) by inserting after the second sentence the following new
sentences: ``Such subsequent arrangement shall become effective
only if Congress enacts a joint resolution of approval
according to the procedures of sections 123 d. and 130 i. of
this Act. Any such nuclear proliferation assessment statement
shall be submitted to the Committee on Foreign Affairs of the
House of Representatives and the Committee on Foreign Relations
of the Senate not later than the 31st day of continuous session
after submission of the subsequent arrangement.''.
SEC. 2. WITHDRAWAL FROM THE TREATY ON THE NON-PROLIFERATION OF NUCLEAR
WEAPONS.
(a) Statement of Policy.--It is the policy of the United States to
oppose the withdrawal from the Treaty on the Non-Proliferation of
Nuclear Weapons (in this section referred to as the ``Treaty'') of any
country that is a party to the Treaty and to use all political,
economic, and diplomatic means at its disposal to deter, prevent, or
reverse any such withdrawal from the Treaty.
(b) Prohibition on Certain Assistance.--Notwithstanding any other
provision of law, no assistance (other than humanitarian assistance)
under any provision of law may be provided to a country that has
withdrawn from the Treaty on or after the date of the enactment of this
Act.
(c) Return of All United States-Origin Materials and Equipment.--The
United States shall seek the return of any material, equipment, or
components transferred under an agreement for civil nuclear cooperation
that is in force pursuant to section 123 of the Atomic Energy Act of
1954 (42 U.S.C. 2153) on or after the date of the enactment of this
Act, and any special fissionable material produced through the use of
such material, equipment, or components previously provided to a
country that withdraws from the Treaty.
SEC. 3. REPORT ON COMPARABILITY OF NONPROLIFERATION CONDITIONS BY
FOREIGN NUCLEAR SUPPLIERS.
Not later than 180 days after the date of the enactment of this Act,
the President shall transmit to the Committee on Foreign Affairs of the
House of Representatives and the Committee on Foreign Relations of the
Senate a report on the extent to which each country that engages in
civil nuclear exports (including power and research nuclear reactors)
requires nuclear nonproliferation requirements as conditions for export
comparable to those under this Act. Such report shall also--
(1) detail the extent to which the exports of each such
country incorporate United States-origin components,
technology, or materials that require United States approval
for re-export;
(2) detail the civil nuclear-related trade and investments in
the United States by any entity from each such country; and
(3) list any United States grant, concessionary loan or loan
guarantee, or any other incentive or inducement to any such
country or entity related to nuclear exports or investments in
the United States.
SEC. 4. INITIATIVES AND NEGOTIATIONS RELATING TO AGREEMENTS FOR
PEACEFUL NUCLEAR COOPERATION.
Subsection f. of section 123 of the Atomic Energy Act of 1954 (42
U.S.C. 2153), as redesignated pursuant to section 1(a)(6) of this Act,
is amended to read as follows:
``f. The President shall keep the Committee on Foreign
Affairs of the House of Representatives and the Committee on
Foreign Relations of the Senate fully and currently informed of
any initiative or negotiations relating to a new or amended
agreement for peaceful nuclear cooperation pursuant to this
section prior to the President's announcement of such
initiative or negotiations. The President shall consult with
the Committee on Foreign Affairs of the House of
Representatives and the Committee on Foreign Relations of the
Senate concerning such initiative or negotiations beginning not
later than 15 calendar days after the initiation of any such
negotiations, or the receipt or transmission of a draft
agreement, whichever occurs first, and monthly thereafter until
such time as the negotiations are concluded.''.
SEC. 5. CONDUCT RESULTING IN TERMINATION OF NUCLEAR EXPORTS.
Section 129 a. (2) of the Atomic Energy Act of 1954 (42 U.S.C. 2158)
is amended--
(1) in subparagraph (C), by inserting ``or'' after the
semicolon; and
(2) by inserting after subparagraph (C) the following new
subparagraph:
``(D) been determined to be a `country of
proliferation concern' under section 1055(g)(2) of the
National Defense Authorization Act for Fiscal Year 2010
(50 U.S.C. 2371(g)(2));''.
SEC. 6. CONGRESSIONAL REVIEW PROCEDURES.
Section 130 i. (1) of the Atomic Energy Act of 1954 (42 U.S.C. 2159)
is amended--
(1) by redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D), respectively; and
(2) by inserting after subparagraph (A) the following new
subparagraph:
``(B) for an agreement for cooperation pursuant to section
123 of this Act, a joint resolution, the matter after the
resolving clause of which--
``(i) is as follows: `That the Congress does favor
the proposed agreement for cooperation transmitted to
the Congress by the President on __________.'; and
``(ii) includes, immediately after the language
specified in clause (i), any other provisions to
accompany such proposed agreement for cooperation.''.
SEC. 7. REQUIREMENT OF LIABILITY PROTECTION FOR UNITED STATES NUCLEAR
SUPPLIERS.
The Atomic Energy Act of 1954 is amended by inserting after section
134 (42 U.S.C. 2160d) the following new section:
``SEC. 135. REQUIREMENT OF LIABILITY PROTECTION FOR UNITED STATES
NUCLEAR SUPPLIERS.
``The President may not issue a license for the export of nuclear
material, facilities, components, or other goods, services, or
technology to a country pursuant to an agreement that has entered into
force after the date of the enactment of this section unless the
President determines that such country has liability protection for
United States nuclear suppliers that is equivalent to the liability
protection specified under the Convention on Supplementary Compensation
for Nuclear Damage.''.
SEC. 8. PROHIBITION ON ASSISTANCE TO STATE SPONSORS OF PROLIFERATION OF
WEAPONS OF MASS DESTRUCTION.
(a) Prohibition on Assistance.--The United States shall not provide
any assistance under Public Law 87-195, Public Law 90-629, the Food for
Peace Act, the Peace Corps Act, or the Export-Import Bank Act of 1945
to any country if the Secretary of State determines that the government
of the country has repeatedly provided support for acts of
proliferation of equipment, technology, or materials to support the
design, acquisition, manufacture, or use of weapons of mass destruction
or the acquisition or development of ballistic missiles to carry such
weapons.
(b) Publication of Determinations.--Each determination of the
Secretary of State under subsection (a) shall be published in the
Federal Register.
(c) Rescission.--A determination of the Secretary of State under
subsection (a) may not be rescinded unless the Secretary submits to the
appropriate congressional committees--
(1) before the proposed rescission would take effect, a
report certifying that--
(A) there has been a fundamental change in the
leadership and policies of the government of the
country concerned;
(B) the government is not supporting acts of
proliferation of equipment, technology, or materials to
support the design, acquisition, manufacture, or use of
weapons of mass destruction; and
(C) the government has provided assurances that it
will not support such acts in the future; or
(2) at least 45 days before the proposed rescission would
take effect, a report justifying the rescission and certifying
that--
(A) the government of the country concerned has not
provided any support for acts of proliferation of
equipment, technology, or materials to support the
design, acquisition, manufacture, or use of weapons of
mass destruction during the preceding 24-month period;
and
(B) the government has provided assurances that it
will not support such acts of proliferation in the
future.
(d) Waiver.--The President may waive the requirements of subsection
(a) on a case-by-case basis if--
(1) the President determines that national security interests
or humanitarian reasons justify a waiver of such requirements,
except that humanitarian reasons may not be used to justify the
waiver of such requirements to provide security assistance
under Public Law 87-195, Public Law 90-629, or the Export-
Import Bank Act of 1945; and
(2) at least 15 days before the waiver takes effect, the
President consults with the appropriate congressional
committees regarding the proposed waiver and submits to the
appropriate congressional committees a report containing--
(A) the name of the recipient country;
(B) a description of the national security interests
or humanitarian reasons that require the waiver;
(C) the type and amount of and the justification for
the assistance to be provided pursuant to the waiver;
and
(D) the period of time during which such waiver will
be effective.
SEC. 9. ADDITIONAL PROTOCOL AS A CRITERION FOR UNITED STATES
ASSISTANCE.
(a) Statement of Policy.--It is the policy of the United States to
ensure that each country that is a party to the Treaty on the Non-
Proliferation of Nuclear Weapons should bring into force an Additional
Protocol to its safeguards agreement with the IAEA.
(b) Criterion for Assistance.--The United States shall, when
considering the provision of assistance under Public Law 87-195 or
Public Law 90-629 to a country that is a party to the Treaty on the
Nonproliferation of Nuclear Weapons, take into consideration whether
the proposed recipient has in force an Additional Protocol to its
safeguards agreement with the IAEA.
SEC. 10. SENSE OF CONGRESS.
It is the sense of Congress that the President should ensure that
participation in international nuclear programs conducted by the United
States is limited to the greatest extent practicable to governmental
and nongovernmental participants from countries that have adopted
nonproliferation provisions in their nuclear cooperation and nuclear
export control policies comparable to the policies specified in section
123 of the Atomic Energy Act (42 U.S.C. 2153), as amended by this Act.
Background and Purpose
Stopping Iran's aggressive pursuit of nuclear weapons has
been one of the highest priorities for U.S. national security
policy for more than a decade. As Iran has moved closer to
achieving its goal, several other countries in the region have
launched their own nuclear programs. Although each describes
the intended use as entirely peaceful, namely for electricity
generation, medicine, and research, it is clear that many of
these efforts are in response to Iran's continued progress.
Thus, the groundwork is being laid for the spread of a nuclear
weapons capability from one unstable regime to another
throughout the Middle East.
Despite the clear dangers involved, the U.S. and other
countries are inadvertently encouraging this development by
promoting nuclear cooperation agreements which, in the view of
the committee, contain insufficient safeguards to ensure that
nuclear power and research activities supported by such
agreements are entirely for peaceful purposes.
The greatest threat stems from the spread of the capability
to produce fissile material, either by enriching uranium or
reprocessing spent fuel to extract unused uranium or plutonium
(ENR). Unfortunately, fissile material can be used not only for
peaceful purposes but also for nuclear and radiological
weapons. Virtually any nuclear program, including one with an
ENR component, can be described as being intended solely for
peaceful purposes, but such programs are essentially identical
to those needed for weapons development. Thus, the foundation
for a nuclear weapons program can be built in full view of the
world as long as a benign purpose is asserted, however
fictional. This is the strategy that Iran has employed from the
outset, supplementing its public activities with clandestine
efforts which, when exposed, it maintains are actually devoted
entirely to medicine, research, and the generation of
electricity.
Efforts by the U.S. and other responsible countries to stop
Iran's nuclear program are undermined by the simultaneous
promotion of nuclear programs throughout the Middle East,
especially by nuclear cooperation agreements that do not
contain guarantees that these countries will not follow in
Iran's footsteps. Any future agreements should contain a
provision that the cooperating country will not develop or
acquire any uranium enrichment or spent-fuel reprocessing
facilities, or engage in such activities, as a critical
counterpoint to Iran. The United States, and indeed all nuclear
suppliers, must be careful that they do not encourage, however
inadvertently, the perception that Iran is merely exercising
its ``right'' to have all aspects of a civil nuclear fuel
cycle, including enrichment and reprocessing, regardless of its
actual intended use.
Each new nuclear program in the region expands the risk.
Recent events have demonstrated that many regimes in the Middle
East are unstable and that it is impossible to predict who may
come to power should these fall. With that power would come the
option to use any existing nuclear infrastructure to establish
a military program. Given this alarming possibility, U.S.
national interests argue strongly for stopping this trend,
especially preventing the acquisition of an ENR capability by
additional countries, regardless of any claimed purpose. But
the U.S. has instead declared that preventing the acquisition
of an ENR capability--and thus the option of its diversion to
military uses--will no longer be a necessary condition in
considering new nuclear cooperation agreements. Regardless of
any assurances provided by opponents of adding sufficient
safeguards in these agreements, we may in fact be helping to
bring about an enormous geopolitical upheaval.
That process is already underway. Turki al-Faisal, a high
ranking Saudi prince and the former head of the Saudi
intelligence service, openly stated in December 2011 that Saudi
Arabia was considering producing nuclear weapons, largely in
response to the threat from Iran. Despite these and similar
assertions, the U.S. has entered into discussions and possibly
negotiations for a nuclear cooperation agreement with Saudi
Arabia, which is unlikely to be required to permanently forego
acquiring an ENR capability. Absent this guarantee, the U.S.
may end up helping Saudi Arabia acquire nuclear facilities,
material, and expertise that could be employed for either
civilian or military use in the future.
Stopping Enrichment and Reprocessing
Countries seeking nuclear weapons are constrained by
extraordinary difficulties, their options being either to
obtain them or their components from other countries or produce
them indigenously. To date, no transfer of a functional nuclear
device is known to have occurred, although China is reported to
have provided Pakistan with nuclear weapons designs and related
technologies. The composition of North Korea's transfer of
nuclear-related items to Pakistan, Iran, and other countries
has yet to be fully revealed.
Regarding indigenous manufacture, the scale and complexity
of the industrial infrastructure needed to produce all of the
required elements, the highly advanced technology involved, and
the enormous costs have presented insuperable obstacles to all
but a handful of states. Countries such as North Korea and
Pakistan which have developed their own capacity were able to
do so only after securing much of the requisite technology,
expertise, and industrial equipment from abroad. Had Iran been
forced to rely solely on its own resources, it would not have
been able to advance its nuclear program, civil or military, to
anything approaching its current capabilities. Its progress has
been made possible only by filling the many gaps through
transfers from clandestine sources in Pakistan, North Korea,
Russia, and other countries. Shutting off the sources of supply
for these and other countries seeking nuclear weapons has long
been a central objective of U.S. nonproliferation policy.
Of these several challenges, the greatest is acquiring the
capacity to produce fissile material through the ENR fuel
cycle. A lesser, but related challenge is achieving a
sufficiently high level of enrichment. The uranium used in
civilian nuclear reactors to generate electricity is typically
enriched to a level of 3-5%. That used for medical purposes or
for research can reach as high as 20%. But weapons-grade
material must be enriched to at least 90%. The first two can be
purchased on the world market, but the latter cannot.
Unfortunately, the infrastructure needed to produce
weapons-grade fissile material is essentially the same as that
used for peaceful purposes. A country seeking nuclear weapons
can employ an ostensibly civilian program as camouflage for a
clandestine military program. Under the guise of peaceful
pursuits, most, if not all, of the infrastructure needed for
ENR fuel cycle can be constructed in the open, thereby
rendering detection of the purely military aspects far more
difficult, if not impossible, especially in closed societies.
The problem is made even more difficult if a country waits
until its civilian program is fully established before
embarking on a military counterpart.
North Korea used this stratagem to develop its plutonium-
based nuclear device and is currently doing the same with
uranium enrichment. Saddam Hussein's initial nuclear weapons
program was cloaked by Iraq's civil nuclear power program, but
Israel's destruction of the ostensibly peaceful reactor at
Osirak in 1981 was a major blow to Saddam's military program.
The far more massive effort he subsequently embarked upon was
uncovered only as a result of his defeat in the 1991 Gulf War
and the intensive search for weapons that followed that war.
Syria's declared nuclear program had concealed a nuclear
reactor secretly built by North Korea, but in 2007 that was
also destroyed by an Israeli airstrike.
Iran is following much the same course and has constructed
a massive nuclear complex that it claims is solely for the
purpose of generating electricity, as well as for medical use
and research. Much of this has been done in full view of
inspectors from the International Atomic Energy Agency (IAEA)
during their visits to a number of identified facilities over
several years, although several suspected clandestine sites
have remained off limits. Nevertheless, successive revelations
of secret nuclear facilities, such the Natanz and Fordow
uranium enrichment facilities, as well as the IAEA's discovery
of evidence that Iran has performed extensive work related to
nuclear warheads, demonstrates that the primary purpose of
Iran's nuclear program is military.
Claims by countries that their efforts to acquire an ENR
capability are solely for peaceful purposes are very difficult
to justify for many reasons. The prohibitive costs and
difficulties involved with enriching uranium or reprocessing
plutonium ensure that there is little economic motivation for
countries that are not already engaged in producing nuclear
fuel to do so. As fissile material for civilian use is widely
available on the world market from multiple sources, the
rationale offered by Iran and other countries that they must
produce their own fuel to prevent an interruption of supply
cannot be supported. Further, the IAEA has established an
international nuclear fuel bank specifically to address this
potential problem. For these reasons, and because the
infrastructure used to make fissile material for civilian use
is in principle the same as that needed for weapons, efforts by
countries to construct their own ENR capability is strong
evidence that the actual intent is military.
The Inadequacy of the Nonproliferation Regime
The most fundamental element of the global nonproliferation
regime is the Nuclear Non-Proliferation Treaty (NPT), which was
concluded in 1968 and subsequently ratified by every country
except India, Pakistan, and Israel (North Korea withdrew from
the NPT in 2003). The treaty prohibits efforts to acquire
nuclear weapons by countries other than those which possessed
them at the time the treaty was opened for signature in 1968,
namely the so-called ``nuclear weapon states'': the U.S.; the
Soviet Union, of which Russia is the successor state; Great
Britain; France; and China. The NPT allows countries to develop
nuclear programs for peaceful purposes, but it requires these
countries to adopt comprehensive safeguards for their nuclear
facilities and undergo regular inspection by the IAEA to ensure
that nothing is being diverted for military use.
A major flaw in the treaty is its reliance on voluntary
disclosure by the signatories. The discovery of Iraq's massive
nuclear program in 1993 despite years of inspections by the
IAEA prompted the IAEA to develop strengthened safeguards in
1997 with what is known as the Additional Protocol (AP). By
giving the IAEA far greater freedom to conduct intrusive
inspections on demand, the AP greatly reduces the ability to
hide clandestine nuclear operations. Unfortunately, the AP's
adoption is not mandatory, and countries such as Iran and Syria
have refused to implement it because it would make their
nuclear weapons programs far harder to conceal.
Despite these and other measures to strengthen the global
nonproliferation regime, nuclear technology, expertise,
materials, and equipment may still be available on the black
market to countries engaged in developing a nuclear weapons
capability, the most important example of which was the network
established by Pakistani nuclear scientist Abdul Qadeer Khan.
Until its operations were exposed in 2004, this network
provided key nuclear elements to Iran, Libya, and other
countries. North Korea has also clandestinely provided
indispensable elements to Iran and other countries, including
building a nuclear reactor in Syria. Shutting down these
clandestine sources remains a high priority for the U.S. and
other countries, but the existence and extent of other possible
networks are unknown.
Another reason the global nonproliferation regime remains
inadequate to preventing the acquisition of the ENR fuel cycle
is that many of the necessary components are openly and
legitimately sold on the world market. The U.S. and other
responsible countries have tried to restrict the commercial
availability of many of the necessary inputs. The most
important mechanism for doing so is the Nuclear Suppliers Group
(NSG) which was established in the aftermath of India's
surprise detonation of a nuclear device in 1974. The NSG is
made up of nuclear-exporting countries which adopt common
guidelines to prevent items from being diverted by recipient
countries to the construction of an ENR fuel cycle or for
military purposes.
These guidelines have been tightened over the years, most
recently in June 2011, but they are voluntary and loosely
interpreted by member states. The result is that commercial
sales, ranging from nuclear fuel to complete reactors by
countries such as France, Russia, Britain, and the U.S., have
been only partially constrained. Given the projected hundreds
of billions of dollars at stake as a result of the ``global
renaissance'' of nuclear power, exporting countries are eager
to maximize sales by their domestic companies, many of which
are state-owned and subsidized, and are reluctant to add new
safeguards to the existing international patchwork. The result
is that limits on the initiation and development of nuclear
programs around the world are determined more by a lack of
financing than concerns about proliferation.
The most vigorous suppliers seeking new outlets are French
and Russian companies, but they are far from alone, as
American, South Korean, and exporters from many other countries
compete for markets. Not only are the French and Russian
companies state-owned, but their governments are actively
engaged in promoting nuclear sales. High-ranking officials,
such as President Sarkozy of France, often openly act as
salesmen for these firms when dealing with their counterparts.
As one country after another, including India, North Korea,
and Pakistan, among others, demonstrated that a civilian
nuclear energy program could be a springboard to a military
capability, the potential military uses of ``peaceful'' nuclear
programs has become increasingly obvious. Nevertheless,
commercial concerns continue to dominate the policies of many
exporting countries.
The ``Gold Standard''
In 2008, the Bush administration began negotiations with
the United Arab Emirates (UAE) for a nuclear cooperation
agreement to support the UAE's development of its planned
massive nuclear energy program. Given the UAE's small
population and economy, as well as its large reserves of
hydrocarbons, many outside experts questioned the actual intent
of this program and thus the emphasis placed by the UAE on an
agreement with the U.S. when the requisite infrastructure could
be purchased on the world market from other countries.
The UAE clearly valued the prospective agreement as a
public affirmation of strong U.S.-UAE ties in the face of an
increasing threat from Iran, as well as a U.S. seal of approval
for its stated ambition to become a major exporter of
electricity to the region. The Bush and Obama administrations
focused on the agreement's utility in advancing broader foreign
policy goals, namely shoring up the U.S. strategic position in
the Persian Gulf. In the end, this political purpose, coupled
with commercial considerations, overrode the strong objections
of those who feared that the agreement could encourage a
further spread of nuclear programs in the region.
The committee was skeptical of the agreement when initially
briefed by the Bush administration, due in large part to the
UAE's history of serving as a transshipment point for sensitive
exports to Iran as a result of its rudimentary export control
regime. The committee was also concerned that the
administration had not asked the UAE to formalize in the
agreement a prior public pledge not to enrich or reprocess.
Ultimately, both the Bush administration and the UAE agreed to
revise the agreement to include a provision to that effect,
which was signed in January 2009. Due to continuing
Congressional concern, the Obama administration sought a more
explicit commitment and renegotiated the text to include a
legally-binding obligation by the UAE not to enrich or
reprocess. This revised agreement was signed, submitted to the
Congress, and went into force in 2010. The formal no-ENR
commitment it contained was dubbed by a Department of State
spokesman as the ``gold standard'' for all future agreements.
Subsequently, however, the application of this precedent
was limited to countries in the Middle East. This approach
apparently arose from concerns that a wider application of the
``gold standard'' might have a potentially negative impact on
commercial sales by the U.S. nuclear industry, which asserted
that efforts to secure commitments from countries not to engage
in ENR activities would place U.S. companies at a competitive
disadvantage vis-a-vis their foreign competitors. However,
there is no evidence to support this concern, and the committee
believes that a serious effort to convince potential recipients
of U.S. nuclear exports to adopt some form of the UAE example
would have significant nonproliferation benefits without
sacrificing legitimate commerce.
This limited application was further narrowed in January
2012 when the State Department formally informed the committee
that the no-ENR policy would be optional apparently in every
instance, presumably even in the Middle East.
This change in policy threatens to undo the no-ENR
condition in the agreement with the UAE. The ``Agreed Minute''
attached to the U.S.-UAE agreement states that ``the fields of
cooperation, terms and conditions . . . shall be no less
favorable in scope and effect than those which may be accorded,
from time to time, to any other non-nuclear-weapon State in the
Middle East in a peaceful nuclear cooperation agreement.''
Thus, should the U.S. sign an agreement with another country in
the region that does not contain a no-ENR commitment, the UAE
will be liberated from this restriction entirely.
At the same time, nuclear cooperation agreements have
become increasingly valuable instruments for achieving U.S.
foreign policy objectives. For example, a nuclear cooperation
agreement with Russia was viewed by both the Bush and Obama
administrations largely in terms of its potentially positive
impact on relations between the two countries, namely as a U.S.
concession of tangible value to be exchanged for Russian
cooperation in other areas. That agreement eventually went into
effect in 2011.
The committee is concerned that nonproliferation provisions
in future nuclear cooperation agreements may be subordinated to
commercial and political considerations. The result would be to
forgo a major opportunity to advance this country's fundamental
national security interests that are threatened by the spread
of nuclear weapons.
The Need for a Strengthened Congressional Role
Any significant nuclear-related export for civil purposes--
e.g., power reactors, research reactors, related equipment, and
reactor fuel--requires a nuclear cooperation agreement between
the U.S. and the partner country to be in force, which sets the
terms of the transfer and use of such equipment and material.
These agreements are authorized by section 123 of the Atomic
Energy Act of 1954, as amended, and are often referred to as
``123 agreements.'' Section 123 sets nine nonproliferation
conditions that each agreement must satisfy.\1\ If an agreement
satisfies these conditions, the President may submit the
agreement to Congress for a period of 90 days of ``continuous
session,'' a period that can last six months or longer,
depending on the Congressional calendar. The proposed agreement
will go into force automatically unless Congress enacts a Joint
Resolution of disapproval. Given that the President would
presumably veto such a resolution, the effective requirement is
a 2/3 vote by both chambers to override, an extraordinarily
high barrier. If an agreement does not satisfy one or more of
these conditions, the President has the option to formally
exempt it from this statutory requirement, but that route
requires Congress to enact a Joint Resolution of approval for
the agreement to come into force.
---------------------------------------------------------------------------
\1\Section 123(a) lists nine criteria that an agreement must meet
unless the President determines an exemption is necessary. These
include guarantees that
Gsafeguards on transferred nuclear material and
equipment continue in perpetuity;
Gfull-scope International Atomic Energy Agency
(IAEA) safeguards are applied in non-nuclear weapon states;
Gnothing transferred is used for any nuclear
explosive device or for any other military purpose, except
in the case of cooperation agreements with nuclear weapon
states, in which the United States has the right to demand
the return of transferred nuclear materials and equipment,
as well as any special nuclear material produced through
their use, if the cooperating state detonates a nuclear
explosive device or terminates or abrogates its IAEA
safeguards agreement;
Gthere is no retransfer of material or classified
data without U.S. consent;
Gphysical security on nuclear material is
maintained;
Gthere is no enrichment or reprocessing by the
recipient state of transferred nuclear material or nuclear
material produced with materials or facilities transferred
pursuant to the agreement without prior approval;
Gstorage for transferred plutonium and highly
enriched uranium is approved in advance by the United
States; and
Gany material or facility produced or constructed
through use of special nuclear technology transferred under
the cooperation agreement is subject to all of the above
requirements.
The relatively small role of Congress is the product of the
Atomic Energy Act (AEA) of 1954, which was enacted at a time
when nuclear power was commonly assumed to be a benign source
of energy for the world. The U.S. being the leader in the
relevant technology, civilian nuclear cooperation agreements
with other countries were encouraged for commercial reasons,
with relatively little consideration given to preventing
proliferation. As such, Congress restricted itself to a largely
passive role in their review and approval.
Since that time, however, and despite the significant
strengthening of the AEA by the Nuclear Nonproliferation Act of
1978, nuclear weapons programs have continued to proliferate.
As noted previously, Saddam Hussein's massive program was
uncovered in 1991, and fortunately destroyed, in the aftermath
of the first Gulf War; North Korea has developed and tested
nuclear weapons; Iran has illicitly constructed and is
operating several uranium enrichment facilities supporting a
barely concealed nuclear weapons program; Libya obtained, and
subsequently surrendered, uranium enrichment equipment and
weapons designs; and Syria constructed a covert nuclear reactor
with the apparent assistance of North Korea, which was
destroyed by an Israeli airstrike in 2007. In addition, the
extensive black market network headed by A.Q. Khan of Pakistan
had supplied uranium enrichment technology and equipment to
North Korea, Iran, Libya, and possibly other countries. These
developments have significantly changed the nature and scope of
the threat posed by further proliferation, necessitating an
updating and strengthening of U.S. nonproliferation policy,
including U.S. nuclear cooperation agreements.
H.R. 1280
To that end, H.R. 1280 and H.R. 1320 were introduced in
2011 by Chairman Ileana Ros-Lehtinen and Ranking Member Howard
Berman, respectively, to update section 123 and other
provisions of the Atomic Energy Act to address the increasing
threat posed by the spread of enrichment and reprocessing
capabilities. The legislation was also intended to enhance the
role of Congress in nuclear trade in keeping with its
constitutional authority to regulate commerce with foreign
nations. On April 14, 2011, the committee marked up H.R. 1280,
with amendments including several provisions from H.R. 1320,
and passed it unanimously.
H.R. 1280 amends the Atomic Energy Act of 1954 to reinforce
U.S. nonproliferation policy, especially by strengthening the
role of Congress in reviewing and approving nuclear cooperation
agreements proposed by the President. It accomplishes this
through modest changes to the AEA, the most important being
that new agreements with countries that do not possess ENR
capabilities, but which refuse to provide guarantees that they
will not seek to obtain them, cannot go into effect unless
approved by Congress through a Joint Resolution. This provision
does not prevent such agreements but instead allows Congress
the opportunity to examine and weigh the broad range of
relevant factors--foreign policy, political, commercial, and
others--to ensure that proposed agreements meet fundamental
U.S. interests and that these are not being sacrificed for
commercial or political considerations. If a proposed nuclear
cooperation agreement does contain such a commitment, the
current procedure for Congressional consideration will remain
the same, namely an automatic approval after 90 days of
continuous session unless Congress passes a Joint Resolution of
disapproval.
H.R. 1280 also expands the requirements for countries
seeking nuclear cooperation agreements with the U.S to include
adherence to basic international and multinational
nonproliferation agreements and conventions, implementation of
an effective export control system, and cooperation with the
U.S. to prevent state sponsors of terrorism from acquiring or
developing chemical, biological, or nuclear weapons of mass
destruction, among other measures. None of these conditions
imposes an undue burden, and it is questionable why the U.S.
would want to engage in nuclear cooperation with a country that
did not already meet them.
Hearings
The full committee held a hearing on March 17, 2011,
titled, ``The Global Nuclear Revival and U.S. Nonproliferation
Policy.''
Committee Consideration and Votes
On April 14, 2011, the Foreign Affairs Committee marked up
the bill, H.R. 1280, pursuant to notice, in open session.
Chairman Ros-Lehtinen offered an amendment in the nature of a
substitute (Ros-Lehtinen 47) that, by unanimous consent, was
considered base text.
1) LRep. Sherman offered en bloc amendments regarding
adequate civil liability protections for U.S. suppliers
of civilian nuclear power efforts (Sherman 14) and the
sense of Congress that participation in U.S.
international nuclear programs should be limited to
participants that have adopted nonproliferation and
export control policies comparable to section 123 of
the Atomic Energy Act (Sherman 16); agreed to by voice
vote.
The Ros-Lehtinen substitute amendment (as
amended by Sherman 14 and 16) was agreed to by
a roll call vote of 34 ayes-0 noes.
Voting yes: Ros-Lehtinen, Smith (NJ), Burton,
Gallegly, Rohrabacher, Manzullo, Royce, Chabot,
Wilson (SC), Fortenberry, Poe, Bilirakis,
Schmidt, Johnson (OH), Rivera, Kelly, Griffin,
Duncan, Buerkle, Ellmers, Berman, Ackerman,
Sherman, Sires, Connolly, Deutch, Cardoza,
Chandler, Higgins, Schwartz, Wilson (FL), Bass,
Keating, Cicilline.
H.R. 1280, as amended, was ordered favorably reported to
the House, by voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of House Rule XIII, the
committee reports that the findings and recommendations of the
committee, based on oversight activities under clause 2(b)(1)
of House Rule X, are incorporated in the ``Background and
Purpose'' portion of this report, above.
New Budget Authority and Tax Expenditures
In compliance with clause 3(c)(2) of House Rule XIII, the
committee adopts as its own the estimate of new budget
authority, entitlement authority, and tax expenditures or
revenues contained in the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 17, 2011.
Hon. Ileana Ros-Lehtinen, Chairman,
Committee on Foreign Affairs,
House of Representatives, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1280, a bill to
amend the Atomic Energy Act of 1954 to require Congressional
approval of agreements for peaceful nuclear cooperation with
foreign countries, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Raymond Hall,
who can be reached at 226-2840.
Sincerely,
Douglas W. Elmendorf.
Enclosure
cc:
Honorable Howard L. Berman
Ranking Member
H.R. 1280--A bill to amend the Atomic Energy Act of 1954 to require
Congressional approval of agreements for peaceful nuclear
cooperation with foreign countries, and for other purposes
As amended by the House Committee on Foreign Affairs on
April 14, 2011
H.R. 1280 would amend the Atomic Energy Act of 1954 by
adding new requirements for agreements for commercial nuclear
exports negotiated under section 123 of that act. Such
agreements are required for U.S. companies to export commercial
nuclear materials, technologies, and services to foreign
nations. The bill would require nations signing those
agreements to forswear any future development of facilities for
enriching or reprocessing nuclear materials. That requirement
could lead to fewer agreements between the United States and
foreign countries, but CBO estimates that it would have no
significant effect on the budget.
The bill also would increase Congressional reporting
requirements related to negotiating section 123 agreements.
Such requirements would have an insignificant effect on the
budget, CBO estimates. Those costs would be subject to the
availability of appropriated funds.
Pay-as-you-go procedures do not apply because enacting the
bill would not affect direct spending or revenues.
H.R. 1280 would impose both intergovernmental and private-
sector mandates, as defined in the Unfunded Mandates Reform Act
(UMRA), on U.S. exporters of nuclear materials and other
defense-related items sent as non-humanitarian assistance.
Because of uncertainty about the future income from such
exports, CBO cannot determine whether the aggregate cost of the
private-sector mandates contained in the legislation would
exceed the annual threshold established in UMRA ($142 million
for private-sector mandates in 2011, adjusted annually for
inflation). However, given the nature of the exports being
restricted and the limited number of public entities affected,
CBO estimates the aggregate cost of the mandates on the public
sector would not exceed the annual threshold established in
UMRA ($71 million for intergovernmental mandates in 2011,
adjusted annually for inflation).
The bill would prohibit U.S. suppliers from exporting some
items and services that are sent as non-humanitarian assistance
to any country that withdraws from the Treaty on the Non-
Proliferation of Nuclear Weapons (NPT). Given the low
historical rate of withdrawal from the NPT, it is unlikely that
this mandate would be imposed. If, however, a country withdraws
from the NPT, some private-sector entities could lose income.
CBO cannot estimate the magnitude of such losses because the
value of assistance and exports from private-sector entities
varies greatly and the number of items exported as a form of
assistance is unknown. CBO estimates that the cost of the
mandate on state, local, and tribal governments would be small
because assistance and exports from public entities--primarily
colleges and universities--is far more limited.
The bill also would impose a mandate on U.S. nuclear
suppliers by prohibiting the export of nuclear materials and
technologies to any country designated by the Director of the
CIA as one of proliferation concern. Based on information from
the Nuclear Regulatory Commission and historical data on the
total value of U.S. nuclear exports and their distribution
among importing countries, CBO expects that the forgone income
from nuclear exports, if suspended, would probably be minimal
for both public (including mostly universities) and private
exporters.
The CBO staff contacts for this estimate are Raymond Hall
(for the federal costs), J'nell Blanco (for the
intergovernmental impact), and Marin Randall (for the private-
sector impact). This estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
Performance Goals and Objectives
As explained more specifically in the ``Background and
Purpose'' and ``Section-by-Section Analysis'' portions of this
report, the principal goals of H.R. 1280 are to enhance the
role of Congress in the review and approval of nuclear
cooperation agreements and to add certain nonproliferation-
related conditions to the requirements for such agreements.
New Advisory Committees
H.R. 1280 does not establish or authorize any new advisory
committees.
Congressional Accountability Act
H.R. 1280 does not relate to terms and conditions of
employment or access to public services or accommodations, as
described in section 102(b)(3) of the Congressional
Accountability Act (P.L. 104-1).
Earmark Identification
H.R. 1280 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clauses 9(e), 9(f), and 9(g) of House Rule XXI.
Section-by-Section Analysis
Section 1. Requirement for Congressional Approval of Agreements for
Peaceful Nuclear Cooperation
This section makes several changes to the Atomic Energy Act
of 1954 (AEA) to strengthen the existing nonproliferation
conditions that any new nuclear cooperation agreement must meet
in order to be submitted by the President for Congressional
consideration. It also makes a change to the manner in which
Congress considers such agreements.
Section 123(a)(3) of the AEA forbids a cooperating country
in a nuclear cooperation agreement from using any U.S.-exported
equipment or material, or any byproduct material, in or for
development of a nuclear explosive device. This section
broadens this requirement to include any such material,
equipment, or material acquired from any other source, foreign
or domestic.
Section 123 (a)(4) of the AEA requires that any proposed
nuclear cooperation agreement confer upon the United States the
``right of return'' of any U.S.-origin nuclear exported item or
material, or byproduct material, if the cooperating country
detonates a nuclear explosive device or terminates or abrogates
an International Atomic Energy Agency (IAEA) safeguards
agreement. This section of H.R. 1280, as amended, expands the
scope of this requirement to include the violation of any
provision of its nuclear cooperation agreement with the United
States.
Section 123(a)(6) requires that any nuclear cooperation
agreement must commit the cooperating country to maintain
``adequate physical security'' regarding any nuclear material
exported to that country by the U.S., or any byproduct nuclear
material. This section of H.R. 1280, as amended, broadens the
application of that commitment to extend to any nuclear
material acquired from any other source other than the United
States.
This section adds two new requirements to those in section
123 (a) of the AEA:
La guaranty by the cooperating party that no
nationals of a third country will be permitted access to any
reactor, related equipment, or sensitive materials transferred
under the agreement for cooperation without the prior consent
of the United States; and
La commitment to maintain and, in the case of a
country without such a legal regime in place, a commitment to
enact at the earliest possible date, and in no case later than
one year after the agreement enters into force, a legal regime
providing for adequate protection from civil liability that
will allow for the participation of United States suppliers in
any effort by the country to develop civilian nuclear power.''
Section 123(d) of the AEA sets forth the procedures by
which a proposed agreement for cooperation that has been
submitted to the Congress is to be reviewed. This section of
H.R. 1280, as amended, requires that a proposed agreement for
civil nuclear cooperation that does not contain a legally-
binding commitment that the cooperating country will not engage
in uranium enrichment or spent-fuel reprocessing activities
(ENR), or acquire or construct facilities for such activities,
anywhere in its territory, can come into effect only if
Congress adopts, and there is enacted, a joint resolution of
approval. If a proposed new agreement does contain such a
commitment, it can go into effect after lying before Congress
for 90 days of continuous session, unless the Congress adopts
and enacts a joint resolution of disapproval during the last 60
days of continuous session of such period. For the renewal of
an existing agreement with a commitment to forgo ENR, Congress
will have 30 days of continuous session to disapprove such
agreement.
This section also adds conditions that a cooperating party
must meet in order to qualify for a nuclear cooperation
agreement with the United States:
Lthe cooperating party has acceded to and is fully
implementing the provisions and guidelines of the Chemical
Weapons Convention; the Biological Weapons Convention; and all
other international agreements to which the United States is a
party regarding the export of nuclear, chemical, biological,
and advanced conventional weapons, including missiles and other
delivery systems;
Lhas established and is fully implementing an
effective export control system, including fully implementing
the provisions and guidelines of United Nations Security
Council Resolution 1540;
Lis in full compliance with all United Nations
conventions to which the United States is a party and all
Security Council resolutions regarding the prevention of the
proliferation of weapons of mass destruction, including the
Convention on the Physical Protection of Nuclear Material, and
the United Nations International Convention for the Suppression
of Acts of Nuclear Terrorism;
Lis not a Destination of Diversion Concern under
section 303 of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (Public Law 111-
195);
Lis closely cooperating with the United States to
prevent state sponsors of terrorism from acquiring or
developing chemical, biological, or nuclear weapons or related
technologies or acquiring or developing destabilizing numbers
and types of advanced conventional weapons, including ballistic
missiles; and
Lhas signed, ratified, and is fully implementing
an Additional Protocol to its safeguards agreement with the
IAEA.
This section also states that subsequent arrangements to
existing nuclear cooperation agreements can become effective
only if Congress enacts a joint resolution of approval
according to the amended procedures noted above.
Section 2. Withdrawal from Treaty on the Non-Proliferation of Nuclear
Weapons.
This section states that it is the policy of the United
States government to oppose the withdrawal by any signatory
from the Treaty on the Non-Proliferation of Nuclear Weapons
(NPT) and to use all political, economic, and diplomatic means
to deter, prevent, or reverse any such withdrawal. It prohibits
U.S. assistance, other than humanitarian assistance, from being
provided to any such country and requires the U.S. to seek the
return of any material, equipment, or components transferred to
the country under a nuclear cooperation agreement.
Section 3. Report on Comparability of Nonproliferation Conditions by
Foreign Nuclear Suppliers.
This section requires the President to provide the
Committee on Foreign Affairs of the House of Representatives
and the Committee on Foreign Relations of the Senate within 180
days after the enactment of this Act a report on the extent to
which each country that engages in civil nuclear exports
requires nuclear nonproliferation conditions comparable to
those in this Act. The report must include information on U.S.-
origin components in each country's nuclear exports,
investments in the U.S. by entities from those countries that
are engaged in nuclear exports, and any U.S. grant, loan, or
loan guarantee to such country or entity.
Section 4. Initiatives and Negotiations Relating to Agreements for
Peaceful Nuclear Cooperation.
This provision amends subsection (f) of section 123 (as
redesignated), to require the President to keep the Committee
on Foreign Affairs of the House of Representatives and the
Committee on Foreign Relations of the Senate fully and
currently informed of any initiative or negotiations relating
to a new or amended agreement for peaceful nuclear cooperation
prior to the President's announcement of such initiative or
negotiations. The President is also required to consult with
the committees concerning such initiative or negotiations
beginning not later than 15 calendar days after the initiation
of any such negotiations, or the receipt or transmission of a
draft agreement, whichever occurs first, and monthly thereafter
until such time as the negotiations are concluded.
Section 5. Conduct Resulting In Termination of Nuclear Exports.
Section 5 amends section 129 a.(2) of the AEA to insert a
new subparagraph (D) which prohibits the export of any U.S.
nuclear materials, equipment, or sensitive nuclear technology
to any nation or group of nations that has been determined by
the President to be a `country of proliferation concern' under
section 1055(g)(2) of the National Defense Authorization Act
for Fiscal Year 2010 (50 U.S.C. 2371(g)(2)).
Section 6. Congressional Review Procedures.
This section amends section 130 i.(1) of the AEA to specify
the language of the joint resolution of approval addressed in
section 1 of this Act. This provision allows the Congress to
add provisions to a joint resolution of approval, e.g.,
reports, conditions for the entry into force of the agreement
or the granting of export licenses pursuant to such agreement,
and other relevant provisions.
The AEA allows Congress only two options: to approve or
disapprove of a proposed nuclear cooperation agreement without
amendment. H.R. 1280 retains this same set of options for new
agreements that include a legally binding commitment to forgo
acquiring an ENR capability. For agreements that do not have
this ENR provision, H.R. 1280 would require that Congress
affirmatively vote to approve such agreements, as well as
provide the option to add conditions, e.g., a requirement for a
Presidential certification regarding the nonproliferation
behavior of the country before the agreement could come into
force. By contrast, a similar requirement for the U.S.-China
nuclear cooperation agreement required passage of separate
legislation. Such conditions could facilitate approval of such
agreements by addressing Congressional concerns regarding the
agreement, such as the country's commitment to
nonproliferation.
Section 7. Requirement of Liability Protection for United States
Nuclear Suppliers.
This section amends the AEA to require that, prior to
issuing a license for any nuclear export, the President must
certify that a cooperating country has liability protection for
United States nuclear suppliers equivalent to that of the
Convention on Supplementary Compensation for Nuclear Damage.
Section 8. Prohibition on Assistance to State Sponsors of Proliferation
of Weapons of Mass Destruction.
This section prohibits U.S. assistance to countries the
governments of which have repeatedly engaged in or supported
proliferation activities if the Secretary of State has issued a
determination to that effect. This determination must be
published in the Federal Register and cannot be rescinded
unless the Secretary provides to the appropriate committees a
report certifying that the government of that country is not
engaged in or supporting proliferation activities and has
provided assurances that it will not engage in such activities
in the future or that the government has not engaged in
proliferation activities in the previous 24 months. The
President may waive this requirement if he determines that U.S.
national security or humanitarian reason justify a waiver and
provides to the appropriate congressional committees a report
stating the reasons for the waiver and the type and amount of
the proposed assistance.
Section 9. Additional Protocol as a Criterion for United States
Assistance.
This section states that it is the policy of the U.S. to
ensure that every signatory of the NPT should bring into force
an Additional Protocol to its safeguards agreement with the
IAEA. It also requires the U.S. to take this policy into
account when considering providing assistance to any country.
Section 10. Sense of Congress.
This section states that it is the sense of Congress that
the President should ensure that participation in international
nuclear programs conducted by the United States is limited to
the greatest extent practicable to governmental and
nongovernmental participants from countries that have adopted
nonproliferation provisions in their nuclear cooperation and
nuclear export control policies comparable to the policies
specified in section 123 of the AEA as amended by this Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
ATOMIC ENERGY ACT OF 1954
TITLE I--ATOMIC ENERGY
* * * * * * *
CHAPTER 11--INTERNATIONAL ACTIVITIES
* * * * * * *
Sec. 123. Cooperation With Other Nations.--[No cooperation]
Subject to subsection f., no cooperation with any nation, group
of nations or regional defense organization pursuant to section
53, 54 a., 57, 64, 82, 91, 103, 104, or 144 shall be undertaken
until--
a. the proposed agreement for cooperation
has been submitted to the President, which
proposed arrangement shall include the terms,
conditions, duration, nature, and scope of the
cooperation; and shall include the following
requirements:
(1) * * *
* * * * * * *
(3) except in the case of those
agreements for cooperation arranged
pursuant to subsection 91 c., a
guaranty by the cooperating party that
no nuclear materials and equipment or
sensitive nuclear technology to be
transferred pursuant to such agreement
or acquired from any other source, and
no special nuclear material produced
through the use of any nuclear
materials and equipment or sensitive
nuclear technology transferred pursuant
to such agreement or acquired from any
other source, will be used for any
nuclear explosive device, or for
research on or development of any
nuclear explosive device, or for any
other military purpose;
(4) except in the case of those
agreements for cooperation arranged
pursuant to subsection 91 c. and
agreements for cooperation with
nuclear-weapon states, a stipulation
that the United States shall have the
right to require the return of any
nuclear materials and equipment
transferred pursuant thereto and any
special nuclear material produced
through the use thereof if the
cooperating party detonates a nuclear
explosive device [or terminates or],
terminates, abrogates an agreement
providing for IAEA safeguards, or
violates or abrogates any provision
contained within such agreement;
* * * * * * *
(6) a guaranty by the cooperating
party that adequate physical security
will be maintained with respect to any
nuclear material transferred pursuant
to such agreement or acquired from any
other source and with respect to any
special nuclear material used in or
produced through the use of any
material, production facility, or
utilization facility transferred
pursuant to such agreement or acquired
from any other source;
* * * * * * *
(8) except in the case of
agreements for cooperation arranged
pursuant to subsection 91 c., 144 b.
144 c., or 144 d., a guaranty by the
cooperating party that no plutonium, no
uranium 233, and no uranium enriched to
greater than twenty percent in the
isotope 235, transferred pursuant to
the agreement for cooperation, or
recovered from any source or special
nuclear material so transferred or from
any source or special nuclear material
used in any production facility or
utilization facility transferred
pursuant to the agreement for
cooperation, will be stored in any
facility that has not been approved in
advance by the United States; [and]
(9) except in the case of
agreements for cooperation arranged
pursuant to subsection 91 c., 144 b.,
144 c., or 144 d., a guaranty by the
cooperating party that any special
nuclear material, production facility,
or utilization facility produced or
constructed under the jurisdiction of
the cooperating party by or through the
use of any sensitive nuclear technology
transferred pursuant to such agreement
for cooperation will be subject to all
the requirements specified in this
subsection[.];
(10) a guaranty by the cooperating party
that no nationals of a third country shall be
permitted access to any reactor, related
equipment, or sensitive materials transferred
under the agreement for cooperation without the
prior consent of the United States; and
(11) a commitment to maintain and, in the
case of a country without such a legal regime
in place, a commitment to enact at the earliest
possible date, and in no case later than one
year after the agreement enters into force, a
legal regime providing for adequate protection
from civil liability that will allow for the
participation of United States suppliers in any
effort by the country to develop civilian
nuclear power.
[The President may exempt a proposed agreement for cooperation
(except an agreement arranged pursuant to subsection 91 c., 144
b., 144 c., or 144 d.) from any of the requirements of the
foregoing sentence if he determines that inclusion of any such
requirement would be seriously prejudicial to the achievement
of United States non-proliferation objectives or otherwise
jeopardize the common defense and security.] Except in the case
of those agreements for cooperation arranged pursuant to
subsection 91 c., 144 b., 144 c., or 144 d., any proposed
agreement for cooperation shall be negotiated by the Secretary
of State, with the technical assistance and concurrence of the
Secretary of Energy; and after consultation with the Commission
shall be submitted to the President jointly by the Secretary of
State and the Secretary of Energy accompanied by the views and
recommendations of the Secretary of State, the Secretary of
Energy, and the Nuclear Regulatory Commission. The Secretary of
State shall also provide to the President an unclassified
Nuclear Proliferation Assessment Statement (A) which shall
analyze the consistency of the text of the proposed agreement
for cooperation with all the requirements of this Act, with
specific attention to whether the proposed agreement is
consistent with each of the criteria set forth in this
subsection, and (B) regarding the adequacy of the safeguards
and other control mechanisms and the peaceful use assurances
contained in the agreement for cooperation to ensure that any
assistance furnished thereunder will not be used to further any
military or nuclear explosive purpose. Each Nuclear
Proliferation Assessment Statement prepared pursuant to this
Act shall be accompanied by a classified annex, prepared in
consultation with the Director of Central Intelligence,
summarizing relevant classified information. In the case of
those agreements for cooperation arranged pursuant to
subsection 91 c., 144 b., 144 c., or 144 d., any proposed
agreement for cooperation shall be submitted to the President
by the Secretary of Energy or, in the case of those agreements
for cooperation arranged pursuant to subsection 91 c., 144 b.,
or 144 d. which are to be implemented by the Department of
Defense, by the Secretary of Defense;
* * * * * * *
c. the proposed agreement for cooperation
(if not an agreement subject to subsection d.)
together with the approval and determination of
the President, has been submitted to the
Committee on Foreign Affairs of the House of
Representatives and the Committee on Foreign
Relations of the Senate for a period of thirty
days of continuous session (as defined in
subsection 130 g.): Provided, however, That
these committees, after having received such
agreement for cooperation, may by resolution in
writing waive the conditions of all or any
portion of such thirty-day period; [and]
d. the proposed agreement for cooperation
(if arranged pursuant to subsection 91 c., 144
b., 144 c., or 144 d., or if entailing
implementation of section 53, 54 a., 103, or
104 in relation to a reactor that may be
capable of producing more than five thermal
megawatts or special nuclear material for use
in connection therewith) has been submitted to
the Congress, together with the approval and
determination of the President, for a period of
sixty days of continuous session (as defined in
subsection 130 g. of this Act) and referred to
the Committee on Foreign Affairs of the House
of Representatives and the Committee on Foreign
Relations of the Senate, and in addition, in
the case of a proposed agreement for
cooperation arranged pursuant to subsection 91
c., 144 b., 144 c., or 144 d., the Committee on
Armed Services of the House of Representatives
and the Committee on Armed Services of the
Senate, but such proposed agreement for
cooperation shall [not] become effective only
if during such sixty-day period the Congress
adopts, and there is enacted, a joint
resolution stating in substance that the
Congress does [not] favor the proposed
agreement for cooperation: Provided, That the
sixty-day period shall not begin until a
Nuclear Proliferation Assessment Statement
prepared by the Secretary of State, and any
annexes thereto, when required by subsection
123 a., have been submitted to the Congress[:
Provided further, That an agreement for
cooperation exempted by the President pursuant
to subsection a. from any requirement contained
in that subsection, or an agreement exempted
pursuant to section 104(a)(1) of the Henry J.
Hyde United States-India Peaceful Atomic Energy
Cooperation Act of 2006, shall not become
effective unless the Congress adopts, and there
is enacted, a joint resolution stating that the
Congress does favor such agreement], unless the
proposed agreement includes a requirement as
part of the agreement for cooperation or other
legally binding document that is considered
part of the agreement that no enrichment or
reprocessing activities, or acquisition or
construction of facilities for such activities,
will occur within the territory over which the
cooperating party exercises sovereignty, in
which case the agreement shall become effective
unless the Congress adopts, and there is
enacted, a joint resolution of disapproval (1)
during such sixty-day period for a new
agreement; or (2) during a period of 30 days of
continuous session for a renewal agreement.
During the sixty-day period the Committee on
Foreign Affairs of the House of Representatives
and the Committee on Foreign Relations of the
Senate shall each hold hearings on the proposed
agreement for cooperation and submit a report
to their respective bodies recommending whether
it should be approved or disapproved. Any such
proposed agreement for cooperation shall be
considered pursuant to the procedures set forth
in section 130 i. of this Act.
Following submission of a proposed agreement for
cooperation (except an agreement for cooperation
arranged pursuant to subsection 91 c., 144 b., 144 c.,
or 144 d.) to the Committee on Foreign Affairs of the
House of Representatives and the Committee on Foreign
Relations of the Senate, the Nuclear Regulatory
Commission, the Department of State, the Department of
Energy, and the Department of Defense shall, upon the
request of either of those committees, promptly furnish
to those committees their views as to whether the
safeguards and other controls contained therein provide
an adequate framework to ensure that any exports as
contemplated by such agreement will not be inimical to
or constitute an unreasonable risk to the common
defense and security.
If, after the date of enactment of the Nuclear Non-
Proliferation Act of 1978, the Congress fails to disapprove a
proposed agreement for cooperation which exempts the recipient
nation from the requirement set forth in subsection 123 a. (2),
such failure to act shall constitute a failure to adopt a
resolution of disapproval pursuant to subsection 128 b. (3) for
purposes of the Commission's consideration of applications and
requests under section 126 a. (2) and there shall be no
congressional review pursuant to section 128 of any subsequent
license or authorization with respect to that state until the
first such license or authorization which is issued after
twelve months from the elapse of the sixty-day period in which
the agreement for cooperation in question is reviewed by the
Congress[.]; and
e. the cooperating party--
(1) has acceded to and is fully
implementing the provisions and guidelines of--
(A) the Convention on the
Prohibition of the Development,
Production, Stockpiling and Use of
Chemical Weapons and on their
Destruction (commonly known as the
``Chemical Weapons Convention'');
(B) the Convention on the
Prohibition of the Development,
Production and Stockpiling of
Bacteriological and Toxin Weapons and
on their Destruction (commonly known as
the ``Biological Weapons Convention'');
and
(C) all other international
agreements to which the United States
is a party regarding the export of
nuclear, chemical, biological, and
advanced conventional weapons,
including missiles and other delivery
systems;
(2) has established and is fully
implementing an effective export control
system, including fully implementing the
provisions and guidelines of United Nations
Security Council Resolution 1540;
(3) is in full compliance with all United
Nations conventions to which the United States
is a party and all Security Council resolutions
regarding the prevention of the proliferation
of weapons of mass destruction, including--
(A) the Convention on the Physical
Protection of Nuclear Material; and
(B) the United Nations
International Convention for the
Suppression of Acts of Nuclear
Terrorism;
(4) is not a Destination of Diversion
Concern under section 303 of the Comprehensive
Iran Sanctions, Accountability, and Divestment
Act of 2010 (Public Law 111-195);
(5) is closely cooperating with the United
States to prevent state sponsors of terrorism
(the term ``state sponsor of terrorism'' means
a country the government of which has been
determined by the Secretary of State, for
purposes of section 6(j) of the Export
Administration Act of 1979, section 620A of the
Foreign Assistance Act of 1961, section 40 of
the Arms Export Control Act, or other provision
of law, is a government that has repeatedly
provided support for acts of international
terrorism) from--
(A) acquiring or developing
chemical, biological, or nuclear
weapons or related technologies; or
(B) acquiring or developing
destabilizing numbers and types of
advanced conventional weapons,
including ballistic missiles; and
(6) has signed, ratified, and is fully
implementing an Additional Protocol to its
safeguards agreement with the International
Atomic Energy Agency.
[e. The President shall keep the Committee
on Foreign Affairs of the House of
Representatives and the Committee on Foreign
Relations of the Senate fully and currently
informed of any initiative or negotiations
relating to a new or amended agreement for
peaceful nuclear cooperation pursuant to this
section (except an agreement arranged pursuant
to section 91 c., 144 b., 144 c., or 144 d., or
an amendment thereto).]
f. The President shall keep the Committee on
Foreign Affairs of the House of Representatives and the
Committee on Foreign Relations of the Senate fully and
currently informed of any initiative or negotiations
relating to a new or amended agreement for peaceful
nuclear cooperation pursuant to this section prior to
the President's announcement of such initiative or
negotiations. The President shall consult with the
Committee on Foreign Affairs of the House of
Representatives and the Committee on Foreign Relations
of the Senate concerning such initiative or
negotiations beginning not later than 15 calendar days
after the initiation of any such negotiations, or the
receipt or transmission of a draft agreement, whichever
occurs first, and monthly thereafter until such time as
the negotiations are concluded.
g. For purposes of this section--
(1) the term ``new agreement'' means an
agreement for cooperation with a country with
respect to which the United States has not, on
or after the date of the enactment of this
subsection, entered into such an agreement; and
(2) the term ``renewal agreement'' means an
agreement for cooperation with a country with
respect to which the United States has, before
the date of the enactment of this subsection,
entered into such an agreement.
* * * * * * *
Sec. 129. Conduct Resulting in Termination of Nuclear
Exports.--
a. No nuclear materials and equipment or sensitive nuclear
technology shall be exported to--
(1) * * *
(2) any nation or group of nations that is found by
the President to have, at any time after the effective
date of this section,
(A) * * *
* * * * * * *
(C) entered into an agreement after the
date of enactment of this section for the
transfer of reprocessing equipment, materials,
or technology to the sovereign control of a
non-nuclear-weapon state except in connection
with an international fuel cycle evaluation in
which the United States is a participant or
pursuant to a subsequent international
agreement or understanding to which the United
States subscribes; or
(D) been determined to be a ``country of
proliferation concern'' under section
1055(g)(2) of the National Defense
Authorization Act for Fiscal Year 2010 (50
U.S.C. 2371(g)(2));
unless the President determines that cessation of such exports
would be seriously prejudicial to the achievement of United
States non-proliferation objectives or otherwise jeopardize the
common defense and security: Provided, That prior to the
effective date of any such determination, the President's
determination, together with a report containing the reasons
for his determination, shall be submitted to the Congress and
referred to the Committee on Foreign Affairs of the House of
Representatives and the Committee on Foreign Relations of the
Senate for a period of sixty days of continuous session (as
defined in subsection 130 g. of this Act), but any such
determination shall not become effective if during such sixty-
day period the Congress adopts, and there is enacted, a joint
resolution stating in substance that it does not favor the
determination. Any such determination shall be considered
pursuant to the procedures set forth in section 130 of this Act
for the consideration of Presidential submissions.
* * * * * * *
Sec. 130. Congressional Review Procedures.--
a. * * *
* * * * * * *
i.(1) For the purposes of this subsection, the term ``joint
resolution'' means--
(A) * * *
(B) for an agreement for cooperation pursuant to
section 123 of this Act, a joint resolution, the matter
after the resolving clause of which--
(i) is as follows: ``That the Congress does
favor the proposed agreement for cooperation
transmitted to the Congress by the President on
__________.''; and
(ii) includes, immediately after the
language specified in clause (i), any other
provisions to accompany such proposed agreement
for cooperation.
[(B)] (C) for a determination under section 129 of
this Act, a joint resolution, the matter after the
resolving clause of which is as follows: ``That the
Congress does not favor the determination transmitted
to the Congress by the President on _____.'', or
[(C)] (D) for a subsequent arrangement under
section 201 of the United States-India Nuclear
Cooperation Approval and Nonproliferation Enhancement
Act, a joint resolution, the matter after the resolving
clause of which is as follows: ``That the Congress does
not favor the subsequent arrangement to the Agreement
for Cooperation Between the Government of the United
States of America and the Government of India
Concerning Peaceful Uses of Nuclear Energy that was
transmitted to Congress by the President on September
10, 2008.'',
* * * * * * *
Sec. 131. Subsequent Arrangements.--
a.(1) Prior to entering into any proposed subsequent
arrangement under an agreement for cooperation (other than an
agreement for cooperation arranged pursuant to subsection 91
c., 144 b., or 144 c. of this Act), the Secretary of Energy
shall obtain the concurrence of the Secretary of State and
shall consult with the Commission, and the Secretary of
Defense: Provided, That the Secretary of State shall have the
leading role in any negotiations of a policy nature pertaining
to any proposed subsequent arrangement regarding arrangements
for the storage or disposition of irradiated fuel elements or
approvals for the transfer, for which prior approval is
required under an agreement for cooperation, by a recipient of
source or special nuclear material, production or utilization
facilities, or nuclear technology. Notice of any proposed
subsequent arrangement shall be published in the Federal
Register, together with the written determination of the
Secretary of Energy that such arrangement will not be inimical
to the common defense and [security, and such proposed
subsequent arrangement shall not take effect before fifteen
days after publication.] security. Such subsequent arrangement
shall become effective only if Congress enacts a joint
resolution of approval according to the procedures of sections
123 d. and 130 i. of this Act. Any such nuclear proliferation
assessment statement shall be submitted to the Committee on
Foreign Affairs of the House of Representatives and the
Committee on Foreign Relations of the Senate not later than the
31st day of continuous session after submission of the
subsequent arrangement. Whenever the Secretary of State is
required to prepare a Nuclear Proliferation Assessment
Statement pursuant to paragraph (2) of this subsection, notice
of the proposed subsequent arrangement which is the subject of
the requirement to prepare a Nuclear Proliferation Assessment
Statement shall not be published until after the receipt by the
Secretary of Energy of such Statement or the expiration of the
time authorized by subsection c. for the preparation of such
Statement, whichever occurs first.
* * * * * * *
SEC. 135. REQUIREMENT OF LIABILITY PROTECTION FOR UNITED STATES NUCLEAR
SUPPLIERS.
The President may not issue a license for the export of
nuclear material, facilities, components, or other goods,
services, or technology to a country pursuant to an agreement
that has entered into force after the date of the enactment of
this section unless the President determines that such country
has liability protection for United States nuclear suppliers
that is equivalent to the liability protection specified under
the Convention on Supplementary Compensation for Nuclear
Damage.
* * * * * * *
