For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33561 ------------------------------------------------------------------------------ Order Code RL33561 U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation Updated December 22, 2006 Sharon Squassoni Specialist in National Defense Foreign Affairs, Defense, and Trade Division Jill Marie Parillo Research Associate Foreign Affairs, Defense, and Trade Division U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation Summary In March 2006, the Bush Administration proposed legislation to create an exception for India from certain provisions of the Atomic Energy Act to facilitate a future nuclear cooperation agreement. After hearings in April and May, the House International Relations Committee and the Senate Foreign Relations Committee considered bills in late June 2006 to provide an exception for India to certain provisions of the Atomic Energy Act related to a peaceful nuclear cooperation agreement. On July 26, 2006, the House passed its version of the legislation, H.R. 5682, by a vote of 359 to 68. On November 16, 2006, the Senate incorporated the text of S. 3709, as amended, into H.R. 5682 and passed that bill by a vote of 85 to 12. The Senate insisted on its amendment, and a conference committee produced a conference report on December 7, 2006. The House agreed to the conference report (H.Rept. 109-721) on December 8 in a 330-59 vote; the Senate agreed by unanimous consent to the conference report on December 9. The President signed the bill into law (P.L. 109-401) on December 18, 2006. The Senate and House versions of the India bill contained similar provisions, with four differences. The Senate version contained an additional requirement for the President to execute his waiver authority, an amendment introduced by Senator Harkin and adopted by unanimous consent that the President determine that India is "fully and actively participating in U.S. and international efforts to dissuade, sanction and contain Iran for its nuclear program." This provision was watered down into a reporting requirement in the conference report. The Senate version also had two unique sections related to the cooperation agreement, Sections 106 and 107, both of which appear in the conference report. Section 106 (now Section 104 (d) (4)) prohibits exports of equipment, material or technology related for uranium enrichment, spent fuel reprocessing or heavy water production unless conducted in a multinational facility participating in a project approved by the International Atomic Energy Agency (IAEA) or in a facility participating in a bilateral or multilateral project to develop a proliferation-resistant fuel cycle. Section 107 (now Section 104 (d) (5)) would establish a program to monitor that U.S. technology is being used appropriately by Indian recipients. Finally, the Senate version also contained the implementing legislation for the U.S. Additional Protocol in Title II, which was retained in the conference bill. Minor differences in reporting requirements and statements of policy are compared in Table I of this report. This report provides a thematic side-by-side comparison of the provisions of the conference report with H.R. 5682 as passed by the House and by the Senate, and compares them with the Administration's initially proposed legislation, H.R. 4974/S. 2429, and the conference report. The report concludes with a list of CRS resources that provide further discussion and more detailed analysis of the issues addressed by the legislation summarized in the table. This report will not be updated. Contents Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 H.R. 5682 in the House . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Committee Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Floor Debate and Votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 S. 3709/H.R. 5682 in the Senate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Committee Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Floor Debate and Votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 H.R. 5682 Conference Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 P.L. 109-401 Signing Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Additional Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 List of Tables Table 1. Comparison of Current Legislation on Waivers for U.S.-India Nuclear Cooperation . . . . . . . . . . . . . . . . . . . . . 10 U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation Overview In July 2005, President Bush announced his intention to conclude a peaceful nuclear cooperation agreement with India. India, which is not a party to the Nuclear Nonproliferation Treaty (NPT), is considered under U.S. law to be a non-nuclear weapon state, yet has tested nuclear weapons and has an ongoing nuclear weapons program. For these reasons, the President would need to make certain waivers and determinations pursuant to the Atomic Energy Act (AEA) before nuclear cooperation with a state such as India could proceed. The Administration proposed legislation (introduced as H.R. 4974/ S. 2429) in March 2006 that, in addition to providing waivers of relevant provisions of the AEA (Sections 123 a. (2), 128, and 129), would have allowed a nuclear cooperation agreement with India to enter into force without a vote from Congress, as though it conformed to AEA requirements. On July 26, 2006, the House passed H.R. 5682 by a vote of 359 to 68. On November 16, 2006, the Senate passed H.R. 5682 by a vote of 85 to12, substituting the text of S. 3709 as an engrossed amendment; the Senate insisted on its amendment, necessitating a conference to resolve differences between the bills. On December 7, conferrees filed a conference report, and on December 8, the House approved the conference report by a vote of 330 to 59; the Senate approved the conference report by unanimous consent in the early hours of December 9. On December 18, President Bush signed the bill into law, P.L. 109-401. His signing statement is discussed in more detail below. H.R. 5682 in the House Committee Actions. The House International Relations Committee met on June 27, 2006 to consider H.R. 5682, "United States and India Nuclear Cooperation Promotion Act of 2006," introduced on June 26 by Representative Hyde.1 The Committee voted to adopt 6 of 12 amendments (one was withdrawn): 1 The National Journal and Congressional Quarterly wrote reports of the HIRC markup, available at [http://nationaljournal.com/members/markups/2006/06/mr_20060627_5.htm] and [http://www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/committees/ 109/committees109-2006062700228055.ht ml @committees&metapub=CQ- COMMITTEEMARKUPS&searchIndex=0&seqNum=1]. CRS-2 ! Representative Royce offered an amendment to ensure that nothing in the act shall be interpreted as permitting any civil nuclear cooperation with India that would in any way assist, encourage, or induce India to manufacture or otherwise acquire nuclear weapons (Section 4 (d) (1)); ! Representative Sherman offered an amendment to strengthen one of the determinations the President must make to implement the waivers pertaining to the Nuclear Suppliers Group (NSG), stipulating that the required NSG decision would not permit nuclear commerce with any other non-nuclear weapon state that does not have full-scope International Atomic Energy Act (IAEA) safeguards (Section 4 (b) (7)). ! Representative Schiff offered an amendment with three components: to add a provision to U.S. policy with respect to South Asia (Section 3 (b)(7)) encouraging India not to increase its production of fissile material at military facilities pending a multilateral moratorium on production of such material for nuclear weapons; to add a reporting requirement for the Presidential submission to implement the waivers (Section 4 (c) (2) (I)) on steps taken to ensure the U.S. transfers will not be replicated by India or used in its military facilities and that U.S. nuclear fuel supply does not facilitate military production of high-enriched uranium or plutonium; and to add a reporting requirement for an annual report on the same (Section 4 (o) (2) (C)). ! Representative Crowley offered an amendment to add a requirement (Section 4 (o)(3)) for an annual report on new Indian nuclear facilities. ! Representative Berkley offered two amendments related to India's spent fuel disposal: an annual report describing the disposal of spent nuclear fuel from India's civil nuclear program (Section 4 (o) (4), and a statement of policy that any spent civilian nuclear fuel in India that might be stored in the United States is considered by Congress under existing procedures of the Atomic Energy Act (Section 3 (b) (7)). An amendment by Ms. Berkley to prohibit any Indian spent fuel from being stored in the United States was rejected by a vote of 15-19. The Committee also voted down four other amendments, including two by Representative Berman designed to place limits on U.S. cooperation until India halts production of fissile material for nuclear weapons. The first Berman amendment, rejected by a vote of 13- 32, sought to condition the President's use of waiver authority (by adding a new determination by the President in Section 4 (b) of the bill) on India's adherence to a unilateral or multilateral moratorium or a multilateral treaty prohibiting the production of fissile material for nuclear weapons. The second amendment, rejected by a vote of 12-31, sought to restrict transfers of U.S. nuclear material under a cooperation agreement until such time that India halted fissile material production for weapons, either by adhering to a unilateral or multilateral moratorium, or a multilateral treaty. The Committee also rejected by a vote of 10-32 an amendment by Representative Sherman to condition the President's use of waiver authority on an additional determination, under Section 4 (b) of H.R. 5682, that India's nuclear weapons program was not using more domestic uranium than it had before July 2005. CRS-3 The amendment would have attached an annual certification that required termination of nuclear cooperation if the certification could not be made. Finally, the Committee rejected, by a vote of 4-37, an amendment by Representative Lee that would have required India to join the Nuclear Nonproliferation Treaty (NPT) before the President could exercise his waiver authority. The Committee on Rules held a hearing on July 25th to consider amendments to H.R. 5682 and procedures for handling the bill on the floor. H. Res 947 waived all points of order against the bill, specified the allowed amendments and limited floor debate to one hour. The following six amendments were allowed to be offered on the floor:2 ! Representatives Hyde (IL)/Lantos (CA): Manager's amendment, containing technical and conforming changes to the text, as well as one substantive change: removing an amendment proposed by Representative Sherman and adopted during the full committee markup relating to subsection 4(b)(7). ! Representative Stearns (FL): Reinforces the intent of Congress that the nuclear cooperation into which the governments of the United States and India would enter is for peaceful, productive purposes, not military. ! Representatives Jackson-Lee (TX)/Burton (IN): Sense of Congress declaring the importance of the South Asia region and urging the continuation of the United States' policy of engagement, collaboration, and exchanges with and between India and Pakistan. ! Representative Sherman (CA): Requires that, before any nuclear cooperation with India can go forward, and every year thereafter, the President must certify that during the preceding year India has not increased the level of domestic uranium it sends through its weapons program. Baseline for the determination under the amendment is the 365 day period preceding the July 18, 2005, Bush-Singh declaration on nuclear cooperation. ! Representative Berman (CA): Restricts exports of uranium and other types of nuclear reactor fuel (defined as "source material" and `special nuclear material' in the Atomic Energy Act of 1954) to India until the President determines that India has halted the production of fissile material (i.e., plutonium and highly enriched uranium) for use in nuclear weapons. ! Representative Fortenberry (NE): Provides Congress with the ability to assess, to the extent possible, whether annual levels of India's nuclear fissile production may imply a possible violation of Article I of the Nuclear Nonproliferation Treaty. 2 See the description in H.Rept. 109-599, "Providing for Consideration of H.R. 5682, United States and India Nuclear Cooperation Promotion Act of 2006," Congressional Record, July 25, 2006, p. H5820. CRS-4 Three amendments were not allowed for consideration on the floor.3 These were ! an amendment by Representative Woolsey that would have prohibited the export of any nuclear-related item to India until the President has implemented and observed all NPT obligations and commitments of the United States and has revised United States' policies relating to nuclear weapons accordingly; ! an amendment by Representative Barbara Lee that would have required India to place all electricity-producing reactors under safeguards, undertake a binding obligation not to transfer any nuclear-weapon-related information or technology (per Article I of the NPT) and take concrete steps toward disarmament; and ! an amendment by Representatives Markey and Upton that would have prohibited nuclear cooperation with India from commencing until the President has determined that the United States has secured India's full and active support in preventing Iran from acquiring weapons of mass destruction. Floor Debate and Votes. The House first considered H. Res 947, which, after several objections to limits on time and the exclusion of certain amendments by Representative Markey and others, passed by a vote of 311 to 112. Of the six amendments considered, three passed by voice vote (the Managers' amendment, Representatives Jackson-Lee/Burton's amendment, and Representative Fortenberry's amendment); Representative Stearn's amendment was recorded as 414-0, and the amendments offered by Representatives Sherman and Berman were defeated (the votes, respectively, were 155 to 268, and 184 to 241). Representative Markey made a motion to recommit the legislation back to the House International Relations Committee with instructions to include language that would require that nuclear cooperation with India could only commence after the president has determined that the United States has secured India's full support in preventing Iran from acquiring weapons of mass destruction. That motion to recommit was defeated in a vote of 192 to 235. The House passed H.R. 5682, "Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006," as amended, by 359 to 68 on July 26, 2006. 3 A fourth amendment, proposed by Mr. Hyde, would have implemented a Congressional review process for arms sales and exports under the Arms Export Control Act, but this amendment was withdrawn. CRS-5 S. 3709/H.R. 5682 in the Senate Committee Actions. On June 29, 2006, the Senate Foreign Relations Committee considered original legislation, S. 3709, to create an exception for India from relevant provisions of the Atomic Energy Act (See S.Rept. 109-288).4 The Committee voted to adopt 2 of 3 amendments: ! Senator Chafee offered an amendment making it U.S. policy to ensure that exports of nuclear fuel to India did not encourage India to increase its production of fissile material (Section 103 (9)); ! Senator Obama offered an amendment to ensure that the United States did not encourage other states to continue nuclear exports to India, if the United States exports to India terminated under U.S. law (Section 102 (6)). The Committee rejected an amendment by Senator Feingold requiring an additional presidential determination in Section 105 of the bill by a vote of 5-13. The Feingold amendment would have conditioned the President's use of waiver authority on a determination that U.S. civil nuclear assistance to India would in no way assist, encourage, or induce India to manufacture nuclear weapons or nuclear devices. The amendment was identical in text to the Schiff amendment to H.R. 5682, but sought instead to require a determination rather than a report. Floor Debate and Votes. An initial attempt to bring S. 3709 to the Senate floor in September failed to gain unanimous consent agreement. Among several issues, two apparently delayed the bill -- language in Title II pertaining to implementing legislation for the U.S. Additional Protocol, and potential concern about whether the United States would accept U.S.-origin spent fuel back from Indian reactors. In the first case, concerns appeared to be mostly resolved by incorporating language into a manager's amendment, with the exception of two issues raised by Senator Ensign in two amendments he introduced on the floor on November 16th that did not pass. These are described in more detail below. In the second case, the concern about disposition of Indian spent fuel was dropped prior to the bill's reaching the floor. On November 15, 2006, the Senate agreed by unanimous consent to consider S. 3709, at a time to be determined by the Majority Leader, in consultation with the Democratic Leader.5 The unanimous consent agreement specified that a managers' amendment would serve as the original text for the purpose of further amendment; and that the only other amendments to be considered would include the following: Senators Ensign (considered in closed session), Reed, Levin, Obama, Dorgan (two amendments), Feingold, Boxer, Feinstein, Harkin, Bingaman (up to seven 4 Details on the mark-up are available at Congressional Quarterly, [http://www.cq.com/ display.do?dockey=/cqonline/prod/data/docs/html/committees/109/committees109- 2006062900228090.html@committees&metapub=CQ-COMMITTEE MARKUPS&searchIndex=0&seqNum=1] for report of the markup. 5 Congressional Record, November 15, 2006, p. S. 10941-42, daily edition. CRS-6 amendments), Kennedy, and Dodd. Of these, Senators Reed, Levin, Kennedy, and Dodd did not introduce amendments, and Senator Bingaman introduced three, rather than seven. All but Senator Feingold's amendment were considered to be relevant second-degree amendments and related to the subject matter of the bill. Further, the unanimous consent agreement provided that once the bill was read a third time, the Senate would begin consideration of H.R. 5682, the House-passed companion, striking all text after the enacting clause and inserting the amended text of S. 3709 in its place. Senator Lugar introduced the bill and offered a section-by-section analysis.6 The following amendments, in brief, were passed either by unanimous consent or voice vote without debate: ! Senator Lugar introduced a manager's amendment, which contained new language in Title II related to the Additional Protocol (S.Amdt. 5168; unanimous consent); ! Senator Obama introduced an amendment containing a statement of U.S. policy (which became Section 114) that any nuclear power reactor fuel reserve provided to the Government of India for use in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements (S.Amdt. 5169; voice vote);7 ! Senator Harkin introduced an amendment requiring the President to determine, before executing his waiver authority, that India was supporting U.S. and international efforts to dissuade, sanction, and contain Iran's nuclear program (S.Amdt. 5173; unanimous consent);8 ! Senator Bingaman introduced an amendment to add a reporting requirement to Section 108 (b) on the amount of uranium mined in India during the previous year; the amount of such uranium that has likely been used or allocated for the production of nuclear explosive devices; and the rate of production in India of fissile material for nuclear explosive devices and of nuclear explosive devices as well as an analysis as to whether imported uranium has affected the rate of production in India of nuclear explosive devices (S.Amdt. 5179; unanimous consent);9 ! Senator Bingaman introduced an amendment to add a new Section in Title I (which became Section 115) requiring the Secretary of Energy to create a Cooperative Threat Reduction Program with India (S.Amdt. 5180; unanimous consent). 6 See Senator Lugar's opening statement in the Congressional Record, November 16, 2006, S10982-84, daily edition. 7 See Congressional Record, November 16, 2006, S11021, daily edition, for the colloquy between Senator Obama and the managers of the bill on the subject of limiting nuclear fuel reserves to provide a disincentive for India to conduct future nuclear tests. 8 See Congressional Record, November 16, 2006, S10996, daily edition, for Senator Harkin's description of the amendment. 9 See Congressional Record, November 16, 2006, S. 11003, daily edition for the text of Senator Bingaman's amendments, S.Amdt. 5179 and S.Amdt. 5180. CRS-7 Senator Lugar's amendment, S.Amdt. 5168 contained minor changes in Title I of S. 3709 as reported out of Committee. One potentially significant change was the deletion of a Sense of Congress on licensing policy in Section 106. In Title II, however, which contains the implementing legislation for the U.S. Additional Protocol,10 significant provisions were added. These included Section 202 on findings, Section 251 (3), and Sections 254, 261, 262 and 271-275. In his opening statement, Senator Lugar reported that "a compromise was reached between the Administration, the Senate Foreign Relations Committee, and those Senators who expressed concern about the IAEA Additional Protocol implementing legislation."11 These additional provisions appear to make explicit existing U.S. rights to exclude inspectors and certain kinds of inspection activities under the Additional Protocol. Several of the modifications address the use of environmental sampling, both for specific locations and for detecting anomalies in a wide-area mode. Other amendments were introduced, debated, and defeated. These included the following: ! Senator Bingaman introduced an amendment requiring a Presidential determination that the United States and India are taking specific steps to conclude a multilateral treaty on the cessation of fissile material for weapons before U.S. nuclear equipment or technology could be exported under the future agreement for cooperation and that no nuclear materials may be exported to India unless the President has determined that India has stopped producing fissile materials for weapons (S.Amdt. 5174; Vote 26-74);12 ! Senator Dorgan introduced an amendment to add a declaration of U.S. policy to continue to support implementation of United Nations Security Council Resolution 1172 (S.Amdt. 5178; Vote 27-71);13 ! Senator Ensign introduced an amendment to Title II of the bill related to the Additional Protocol that would have required any inspection equipment, materials and resources to have been purchased, owned, inspected, and controlled by the United States (S.Amdt. 5181; Vote 27-71);14 10 The Additional Protocol is a protocol to IAEA safeguards agreements under the Nuclear Nonproliferaton Treaty (NPT) which enhances the IAEA's inspection rights, methods, and information. The model agreement is INFCIRC/540. Nuclear weapon states have modified the model to include provisions for national security exclusions, because of their weapons status. The United States signed its additional protocol in 1998, and the Senate gave its consent for ratification in 2004, but the additional protocol requires implementing legislation to enter into force. The Senate Foreign Relations Committee reported out such implementing legislation, S. 2489, in April 2006. 11 Congressional Record, November 16, 2006, S10984, daily edition. 12 Congressional Record, November 16, 2006, S. 10998-11001, daily edition, for Senator Bingaman's explanation of his amendments and responses by Senators Lugar and Biden.. 13 Congressional Record, November 16, 2006, S11001, daily edition. 14 Congressional Record, November 16, 2006, S11009, daily edition, for text of Ensign (continued...) CRS-8 ! Senator Dorgan introduced an amendment that would have required the President to determine, before executing his waiver authority, that India has committed to putting all electricity-producing nuclear reactors under safeguards, has undertaken an obligation not to proliferate nuclear weapons technology, has joined a legally-binding nuclear test moratorium; is verifiably reducing its nuclear weapons stockpile, and has undertaken an obligation to agree to ultimate disarmament (S.Amdt. 5182; voice vote);15 ! Senator Feingold introduced an amendment that would have required the President to determine, before executing his waiver authority, that the scope and content of the cooperation agreement would not allow India to use U.S. technology, equipment or material in unsafe guarded facilities, would not result in India replicating U.S. technology nuclear fuel and would not facilitate the increased production by India of fissile material in unsafeguarded nuclear facilities (S.Amdt. 5183; Vote 25-71);16 ! Senator Boxer introduced an amendment that would have required the President to determine, before he could execute his waiver authority, that India had halted military-to-military contacts with Iran (S.Amdt. 5187; Vote 38-59).17 Most of these amendments were characterized by Senators Lugar and Biden as "killer amendments." Senator Bingaman described his amendment as implementing a proposal by former Senator Nunn.18 Senator Dorgan's amendment supporting U.S. implementation of U.N. Security Council 1172 sought to reaffirm U.S. support for the steps endorsed by the U.N. Security Council following the 1998 Indian and Pakistani nuclear tests, including limits on those nuclear programs such as a ban on deployments, and fissile material production for weapons, as well as a commitment on all states' parts not to sell nuclear technology to India and Pakistan. Senator Dorgan's other amendment, S.Amdt. 5182, was similar to Representative Barbara Lee's amendment to the House bill that was rejected by the House Rules Committee. That amendment attempted to commit India to undertake the same obligations as other nuclear weapon states under the NPT. Senator Feingold's amendment was similar to the one he introduced in Committee that was rejected. Although modified to address objections voiced in the mark-up, the amendment was described by Senator Lugar on the floor as requiring a certification that would have been 14 (...continued) amendment. The debate was held in closed session. 15 See Congressional Record, November 16, 2006, S11006, daily edition, for Senator Dorgan's introduction of the amendment and debate. 16 See Congressional Record, November 16, 2006, S11011-15, daily edition, for Senator Feingold's introduction of the amendment and debate. 17 See Congressional Record, November 16, 2006, S11016-11019, daily edition, for Senator Boxer's introduction of the amendment and debate. 18 Congressional Record, November 16, 2006, S109998-11000, daily edition. CRS-9 "impossible to make."19 Senator Ensign's amendment was debated in closed session, apparently because of the potential need to discuss classified information relating to the protection of national security information during IAEA inspections under an Additional Protocol in the United States. H.R. 5682 Conference Report On December 7, 2006, conferees on H.R. 5682 filed Conference Report H.Rept. 109-721. The bill essentially combines many of the provisions of both the House and Senate versions. Specific differences are highlighted in Table 1, below. Of note, the Senate provisions to ban enrichment, reprocessing, and heavy water production cooperation with India (now Section 104. (d) (4)) and create an end-use monitoring program (now Section 104.(d) (5)) prevailed in the conference bill, as did Title II, which includes the implementing legislation of the U.S. Additional Protocol. The so- called Harkin amendment, which added a determination that India was fully and actively supporting U.S. and international efforts to contain, dissuade, and sanction Iran for its nuclear weapons program, did not remain as a determination, but became two reporting requirements: first, as a one-time report when the Section 123 agreement is submitted to Congress (now Section 104.(c)(2)(H)) and as an annual reporting requirement (now Section 104.(g)(2)(E)). P.L. 109-401 Signing Statement On December 18, 2006, President Bush signed the "Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006" into law (P.L. 109- 401). President Bush noted that the act "will strengthen the strategic relationship between the United States and India."20 In particular, President Bush stated that the executive branch would construe two sections of the bill as "advisory" only: policy statements in Section 103 and the restriction contained in Section 104 (d) (2) on transferring items to India that would not meet NSG guidelines. On the first, the President cited the Constitution's "commitment to the presidency of the authority to conduct the Nation's foreign affairs;" on the second, the President raised the question of whether the provision "unconstitutionally delegated legislative power to an international body." In other words, the President was questioning whether Congress were ceding authority to approve U.S. exports to the Nuclear Suppliers Group. However, U.S. officials, including Secretary of State Rice, have formally told Congress multiple times that the United States government would abide by NSG guidelines. The President's signing statement also noted that the executive branch would construe "provisions of the Act that mandate, regulate, or prohibit submission of information to the Congress, an international organization, or the public, such as sections 104, 109, 261, 271, 272, 273, 274, and 275, in a manner consistent with the President's constitutional authority to protect and control information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties." This could suggest that the executive branch might limit the scope of reporting required by Congress in those sections. 19 Congressional Record, November 16, 2006, S11014, daily edition. 20 See [http://www.whitehouse.gov/news/releases/2006/12/20061218-12.html]. CRS-10 Table 1. Comparison of Current Legislation on Waivers for U.S.-India Nuclear Cooperation Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Waiver Provides authority for Section 1 (a): Section 4 (a): Section 104 (a): Section 104 authority President to waive President may waive Same as H.R. 4974. Same as H.R. 4974. (a): Atomic Energy Act sections of AEA (see Same as H.R. (AEA) requirements. below) if he makes a 4974. determination. Section 123 a. Full-scope safeguards. Section 1 (a) (1): Section 4 (a) (1): Section 104 (a) (1): Section 104 (2) of Atomic Waived AND the Waived BUT entry Equivalent to H.R. (a) (1): Senate Energy Act future cooperation into force requires 5682. See Section version. (AEA) agreement enters into Joint Resolution of 104 (b). force as though it met Approval as all other all Section 123 a. exempted requirements (does agreements (See not require a Joint also Section 4 (e)). Resolution of Approval). CRS-11 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Section 128 of Annual review by Section 1 (a) (2): Section 4 (a) (2): Section 104 (a) (2): Section 104 AEA Congress of export Application of Waiver ends if India Section 128 waived (a) (2): license for an agreement Section 128 waived engages in any without conditions. Same as exempted from full- without conditions. Section 129 actions Senate scope safeguards (see description version. requirement. below for Section 129), except for its ongoing weapons program [129 a. (1) (D)] and future reprocessing transfers to a non- nuclear weapon state [129 a. (2) (C)]. CRS-12 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Section 129 of a. Terminate U.S. Section 1 (a) (3): Section 4 (a) (3): Section 104 (a) (3): Section 104 AEA nuclear exports if "Sanctions" under Waiver of Section Equivalent to H.R. (a) (3): President determines Section 129 waived. 129 limited to: 5682 but worded Same as that a (1) non-nuclear Indian nuclear tests differently. The Senate weapon state: before 2005 [Section language specifies version. (A) Has tested a nuclear 129 a. (1) (A)] and waiver for sanctions device ongoing nuclear under Section 129 a. (B) terminates or weapons activities (1) (D), but covers abrogates IAEA [Section 129 a. (1) the 1998 Indian safeguards (D)]. nuclear test by (C) materially violates waiving any Section IAEA safeguards 129 sanctions (D) Has ongoing nuclear regarding any actions weapons program that occurred before OR if President July 18, 2005. (There determines (2) any state has only been one Presidential (A) materially violates a determination for cooperation agreement India prior to 2005 (B) assists non-nuclear that is relevant to weapon state in nw- Section 129 -- for related activities the Indian nuclear (C) Has agreement or test in 1998). transfers reprocessing material, technology, or CRS-13 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Determination Establishes threshold for Section 1b: Section 4 (b): Section 105: Section 104 President to use waiver President must make Same requirements Same requirements (b): authority. 1 determination that 7 with minor changes with minor changes Closer to actions have occurred that strengthen Specifies safeguards House-passed (see below). measures. Specifies in perpetuity. Added version. safeguards in determination on perpetuity. India and Iran (Harkin amendment) Separation plan Identification of Indian (1) India has Section 4 (b) (1): Section 105 (1) and Section 104 civilian nuclear facilities provided to US and Same language as (2) Same language as (b) (1): to US and IAEA. IAEA a credible plan H.R. 4974. H.R. 4974 but Closer to to separate civil and separates the House-passed military facilities, declaration provision version. materials, and into Section 105 (2). programs, and has filed a declaration regarding its civil facilities with the IAEA. CRS-14 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Safeguards India committed to (2) Entry into force Section 4 (b) (2): Section 105 (3) Section 104 plan placing additional of safeguards Specifies safeguards Specifies safeguards (b) (2) civilian nuclear facilities agreement in in perpetuity in in perpetuity in Change: under IAEA safeguards accordance with accordance with accordance with Requires under the July 18, 2005, IAEA practices for IAEA standards, IAEA standards, concluding Joint Statement. India's civil nuclear principles and principles and "all legal steps facilities as declared practices. Also practices. Also prior to in the plan. mentions safeguards mentions safeguards signature" on materials and on materials and (meaning programs, including programs. Board of materials used in or Governors produced through approval of use of civil nuclear the safeguards facilities. agreement). Specifies safeguards in perpetuity with IAEA standards, etc. CRS-15 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Additional An agreement with (3) Making Section 4 (b) (3) Section 105 (4) Section 104 Protocol IAEA to enhance satisfactory Specifies Specifies "substantial (b) (3) inspections, access, and progress toward "substantial progress." "Substantial declarations relevant to implementation. progress" consistent progress safeguards. with IAEA toward principles, practices concluding and policies. and Additional Protocol." FMCT Future negotiations to (4) Working with the Section 4 (b) (4) Section 105 (5) Section 104 (Fissile end production of fissile United States for Specifies working Equivalent to H.R. (b) (4) Material material for nuclear conclusion of a "actively" for the 4974. House Production weapons. multilateral FMCT. "early" conclusion. version. Cutoff Treaty) Halting July 18, 2005, (5) Supporting Section 4 (b) (5) Section 105 (6) Section 104 enrichment/ commitment by India to international efforts Specifies "working Specifies preventing (b) (5) reprocessing support U.S. policy to to prevent the spread with and supporting spread "to any state Combines transfers restrict access to of enrichment and US and international that does not already both texts. enrichment and reprocessing efforts." possess full-scale, reprocessing. technology. functioning enrichment and reprocessing plants." CRS-16 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Export controls July 18, 2005 (6) Ensuring that Section 4 (b) (6) Section 105 (7) Section 104 commitment by India to necessary steps Specifies enactment Specifies effective (b) (6) strengthen export are taken to secure and enforcement of enforcement actions. Closer to controls and adhere to nuclear materials and export control laws; House international norms, technology through specifies version. including Missile comprehensive harmonization of Technology Control export control laws, regulations, Regime (MTCR) and legislation and policies and Nuclear Suppliers Group regulations; and practices with the (NSG) guidelines. harmonization and policies and adherence to MTCR practices of MTCR and NSG guidelines. and NSG. Nuclear NSG guidelines (7) Supply to India is Section 4 (b) (7) Section 105 (9) Section 104 Suppliers currently prohibit consistent with US Specifies NSG Specifies NSG (b) (7) Group (NSG) nuclear transfers to participation in NSG. consensus decision. consensus decision House India; a decision must be This assumes that the that does not permit version. taken to allow NSG will agree to an an exception for cooperation. NSG exception for exports another non-nuclear operates by consensus. to India. weapon state. CRS-17 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Iran Ensure that India is NONE NONE Section 105 (8) Senate supporting U.S. and But see Section 3 (b) Requires India's full provision international efforts to (4) statement of & active participation (Harkin dissuade, sanction, and policy on India's in U.S. and amendment) contain Iran's nuclear support for U.S. international efforts removed and program efforts vis-a-vis to dissuade, sanction, placed in Iran. and contain Iran for reporting its nuclear program requirements consistent with U.N. (see Section Security Council 104.(c)(2) resolutions (H)) and Section 104.(g)(2) (E)). CRS-18 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Report on Notify Congress that 7 Section 1 c. Section 4 (c) (2): Section 105: Section 104 Determination actions have occurred to Report to HIRC, Provides details Determination must (c) (1) and (2) allow waiver. SFRC that 7 actions about what reports be made in writing to Includes ten have occurred, to HIRC, SFRC appropriate requirements including basis for should contain, Committees. in the report to determination. specifically on the 7 be submitted actions. Also, two Similar reports are with the 123 other reports are required in Section agreement. required for the 108 (a) (1), but are determination: a not tied to President's description of the determination. scope of the 123 agreement with the US and the steps taken to ensure that U.S. assistance will not aid India's nuclear weapons program (Schiff amendment). CRS-19 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Termination Establish a threshold for Section 1d. Section 4 (a) (3): Section 104 (a) (3): Section 104 halting U.S. exports to All waiver authorities All termination All termination (d) (3): India (now contained in (for Section 123 a. provisions of provisions of Section All Section 129 of the AEA (2), Section 128, and Section 129 of the 129 of the AEA termination and in the proposed Section 129) AEA (except 129 (except 129 a.(1) (D)) provisions of peaceful nuclear terminate if India a.(1) (D)) would be would be in effect Section 129 of cooperation agreement tests a nuclear in effect (see (see description of the AEA itself, which is not yet explosive device. description of sec.129 waiver (except 129 drafted). sec.129 waiver above). a.(1) (D)) above). would be in effect (see description of sec.129 waiver above). CRS-20 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report ALSO No equivalent Section 104 Section 4 (d) (3): provision to H.R. (d) (3): Exports would 5682 but Section 108 Incorporated terminate if India (b) (3) (A) contains a House version makes a materially reporting reqt if India Section 4 (d) significant transfer does not comply with (3) (Berman of items in violation NSG guidelines and amendment). of NSG guidelines, Section 108 (b) (4) or of items in (A) requires an violation of MTCR annual certification guidelines. that India is in full compliance with all July 18, 2005 commitments. CRS-21 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Sense of To describe Congress's NONE Section 2 Section 102 Section 102 Congress policy objectives with Notes importance of Notes that engaging Combines respect to nuclear nonproliferation and India is in the both texts. cooperation with India. NPT and focuses on national security how the United interest of the United States could States, but need to strengthen its minimize nonproliferation proliferation risk. policy by engaging United States should NPT outliers like not facilitate trade by India. Sets up other nations if U.S. criteria exports terminated. (nonproliferation record, democratic government, support for U.S. nonproliferation aims) for engagement and states India meets criteria. CRS-22 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Statements of To describe U.S. policy NONE Section 3 (a) Section 103 Section 103 Policy (I)* objectives, with respect General Section 103 (8): (a) [* President to nonproliferation. (1) Oppose nuclear maintain support for Section 103 Bush has weapons NPT. (a)(1) interpreted as development. Combines "advisory"] both. (2) Support peaceful No equivalent Section 103 uses of nuclear (a)(2) energy, but only House with full NPT version. compliance. (3) Strengthen NSG Similar to Section Section 103 implementation, 103 (6) on support (a)(3) and including cutoff of for NSG. Section 103(a) exports for (4). violations. CRS-23 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Statements of To describe U.S. policy NONE Section 3 (b) South Section 103 (1), but Section Policy (II) objectives, with respect Asia moratorium does not 103(b)(1) to South Asia, U.S.- (1) Fissile material include China. House version India bilateral relations, production and South Asian moratorium for proliferation. India, Pakistan, China. (2) FMCT No equivalent Section 103(b)(2) House version (3) Other Section 103 (2), but Section nonproliferation no mention of 103(b)(3) activities, like PSI, Convention on House version Australia Group, Supplementary Wassenaar, Compensation. Convention on Supplementary Compensation. (4) Support for U.S. No equivalent, but Section policies to prevent language similar to 103(b)(4) Iran from acquiring Section 105 (8) Modified nuclear weapons. determination House version CRS-24 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report (5) Cap, roll back No equivalent Section and eliminate South 103(b)(5) Asian nuclear arsenals. (6) No spent fuel No equivalent Section transfer without 103(b)(6) Congressional approval. (7) Encourage cap No equivalent Section on production of provision 103(b)(7) fissile material for weapons, pending moratorium. Statements of NONE No equivalent Section 103 (3): Full Removed. Policy (III) provision compliance with all nonproliferation obligations. No equivalent Section 103 (4): Section provision Ensure reliability of 103(b)(8) safeguards and Additional Protocol. CRS-25 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report No equivalent Section 103 (5): Section provision Agreement must 103(b)(9) meet all other Section 123 a. requirements. No equivalent Section 103 (6): Section provision Consistency with 103(a)(3) NSG guidelines. No equivalent Section 103 (7): Section 103 provision Work with NSG (a)(5) members to restrict transfers of enrichment and reprocessing, also to India. No equivalent Section 103 (8): Akin to provision Maintain support for Section 102 adherence & (2). compliance with NPT. CRS-26 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report No equivalent Section 103 (9): Removed (see provision Exports of nuclear reporting fuel to India should requirements). not contribute to or encourage India to increase production of fissile material for military uses. No equivalent Section 114: Any Section 103 provision nuclear power reactor (b)(10) fuel reserve provided to India should be commensurate with reasonable reactor operating requirements CRS-27 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Expedited To provide procedures None, except as Section 4 (f) and (g): None, except as None, except procedures for expedited provided already in track with existing provided already in as provided consideration of Joint Section 130 of AEA. law (Section 130 of Section 130 of AEA. already in Resolution of Approval. AEA). Section 130 of AEA. End-Use To provide reasonable NONE NONE Section 107 requires Section 104 Monitoring assurances that the following measures: (d)(5) recipient is complying (1) Obtain and with relevant implement assurances requirements, terms and and conditions conditions of U.S. regarding end-use export licenses. monitoring; (2) a detailed system of reporting on technology transfers, including those authorized by Section 57 b of AEA. (3) Fall-back safeguards, should IAEA be unable to implement safeguards in India. CRS-28 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Restrictions on NONE Section 4 (d) Section 104 cooperation (1) No assistance No equivalent but (d) that would aid similar concept Section 104 India's nuclear behind Section 106, (d)(1) weapons program. Section 103 (9) (2) No transfers if Similar to Section Section 104 they would violate 103 (6): to act in a (d)(2)* NSG guidelines. manner fully House consistent with NSG version. guidelines (but this is [* President only a Statement of Bush has Policy). interpreted as "advisory"] (4) President should Section 102 (6): Similar to seek to prevent United States should Section 102 cooperation by other not seek to facilitate (13). states with India if cooperation by other United States states with India if terminates exports. United States terminates exports. CRS-29 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report No equivalent Section 106 Section 104 provision Bans cooperation on (d)(4) enrichment, Minor editing reprocessing, and changes. heavy water materials, equipment, and technology with exception for multilateral and bilateral fuel cycle cooperation, if President determines that the export will not improve India's ability to produce nuclear weapons. ability to produce fissile material for weapons. CRS-30 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Other reporting NONE Section 4 (j) (1): No equivalent Removed annual report on provision U.S. policy objectives for South Asia (i.e., steps taken by the United States and India, extent of success, and cooperation by other countries). CRS-31 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Section 4 (j) (2) Section 108 (b) (6) Section 104 Annual report on Annual report on (g) (2) (H) U.S. nuclear exports estimated amount of and Section to India, including uranium mined in 104 (g) (2) (J) estimates of Indian India during the uranium mining, previous year(A); fissile material and amount of such nuclear weapons uranium that has production rates; as likely been used or well as impact of allocated for the imported uranium on production of nuclear such rates. Report explosive devices also to describe (B); and the rate of India's use of any production in India of U.S. nuclear fissile material for equipment, material nuclear explosive or technology in an devices(C)(I); and of uninspected facility; nuclear explosive replication of devices(C)(ii) anything transferred and whether Section 108 (b) (7) imported nuclear fuel Analysis on whether has helped to imported uranium has increase fissile affected the rate of material production production in India of CRS-32 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Other NONE Section 4 (j) (3): Section 108 (b) (2): Section 104 reporting, annual report on list of licenses (g) (2) (B) continued new Indian nuclear approved by NRC, facilities. DOE, Commerce or any other U.S. authorizations of exports and reexports of nuclear materials and equipment. Section 4 (j) (4): No equivalent Section 104 annual report on provision (g) (2) (L) India's spent fuel disposal. CRS-33 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Section 4 (j) (5): Section 108 (b) (1): Section 104 annual report on description of (g) (2) (A) growth in India's additional nuclear military fissile facilities/materials material production, India places under to include IAEA safeguards. information on Section 108 (a) (3): Indian uranium Implementation & mining, electricity Compliance Report; production, Information on domestic uranium Nuclear Activities of used in civilian India; "significant electricity changes in the production, & production by India military fissile of nuclear weapons material production, or in the types or etc. amounts of fissile material produced." See also Section 108 (b) (6). CRS-34 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report No equivalent Section 108 (b) (3): Section 104 provision Any significant (g) (2) (C) nuclear commerce between India and other countries that does not comply with NSG guidelines, or would not meet standards applied to U.S.-origin material. CRS-35 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Other NONE NONE Section 108 (b) (4): Section 104 Presidential That India is in full (g) (2) certifications compliance with following obligations (listed in Section 108 (a) (1)): Joint Statement commitments, separation plan, safeguards agreement, Additional Protocol, 123 agreement, terms and conditions of approved export licenses. If certification is not possible, report on steps, responses and implications. CRS-36 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Consultation NONE Section 4 (e (2): No equivalent Removed with Congress Requires monthly provision consultations with Congress on progress in 123 agreement negotiations and IAEA safeguards agreement negotiations. No equivalent Section 108 (a): keep Section 104 provision Congress fully (g) (1)) informed on India's: (1) non-compliance (2) nuclear facility construction (3) fissile material production (4) changes in operational status of nuclear facilities. CRS-37 Issue Description/Purpose H.R. 4974/S. 2429 H.R. 5682 (House H.R. 5682 (Senate H.R. 5682 as introduced version) version) Conference Report Program for To further common NONE NONE Section 115 Section 109 cooperative nonproliferation goals, Requires Secretary of threat reduction including scientific Energy to establish a research and United States-India development efforts Scientific related to nuclear Cooperative Threat nonproliferation, with Reduction Program. emphasis on nuclear safeguards. TITLE II Implementing NONE NONE Entire Title II Title II Legislation for the U.S. See. S. 2489 for Additional Protocol. comparison and S. 3709 as reported out of committee for differences between those and the version voted on by the Senate. CRS-38 Additional Resources CRS Report RL33016, U.S. Nuclear Cooperation with India: Issues for Congress, by Sharon Squassoni. CRS Report RL33292, India's Nuclear Separation Plan: Issues and Views, by Sharon Squassoni. CRS Report RL33072, U.S.-India Bilateral Agreements and `Global Partnership,' by K. Alan Kronstadt. CRS Report RS22474, Banning Fissile Material Production for Nuclear Weapons: Prospects for a Treaty (FMCT), by Sharon Squassoni, Andrew Demkee, and Jill Marie Parillo. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33561