LEGISLATIVE BULLETIN | October 1, 2008

H.R. 7081, the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act

Background and Summary

The legislation gives final approval to the U.S. agreement with India on peaceful nuclear cooperation. In the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, (hereafter referred to as the "Hyde Act") (P.L. 109-401), Congress set certain terms and conditions for the agreement, in order to permit the President to submit the agreement under the Atomic Energy Act of 1954. The Senate approved the Hyde Actby a vote of 85-12 on November 16, 2006 (the conference report was approved by voice vote on December 9, 2006). Under the Hyde Act and the Atomic Energy Act, the agreement cannot enter into force unless Congress approves the agreement. 

The Hyde Actrequired the President to make several determinations to Congress in submitting the agreement. These included the following determinations: 

•India has provided the United States and the International Atomic Energy Agency (IAEA) a credible plan to separate its civil and military nuclear facilities; 

•India and the IAEA have concluded all legal steps required prior to signature of an IAEA safeguards agreement; 

•India and the IAEA are making substantial progress toward concluding an Additional Protocol to the safeguards agreement, based on the Model Additional Protocol; and 

•The Nuclear Suppliers Group (NSG), an informal organization consisting of 44 countries, has decided by consensus to permit supply to India of nuclear items covered by the NSG guidelines. 

The President made the required determinations on September 10, 2008, a few days after the NSG, meeting in Vienna, gave approval to nuclear commerce with India. 

 

Major Provisions

Title I: Approval of United States-India Agreement for Cooperation on Peaceful Uses of Nuclear Energy 

Approval of the Agreement.The bill provides Congressional approval of the United States-India Agreement for Cooperation on Peaceful Uses of Nuclear Energy. 

Applicability of Atomic Energy Act of 1954, Hyde Act, and other Provisions of Law.The legislation clearly states that the provisions of the Atomic Energy Act and the Hyde Act (with the exception of provisions relating to how the agreement is approved) will continue to apply to the U.S.-India agreement. 

The bill waives the 30-day consultation requirement in the Atomic Energy Act of 1954, because this 30 day period is not expected to elapse until mid-October. 

Declarations of policy. H.R. 7081states that it shall be U.S. policy: 

•That approval of the agreement is based upon U.S. interpretations of its terms, including the view that fuel assurances provided by President Bush are a political - rather than legally binding - commitment. 

•That the United States seeks to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in the NSG or from any other source. Further, the bill requires the President to certify that approving the agreement is consistent with the U.S. obligation under the Nuclear Non-Proliferation Treaty not to assist or encourage India to produce nuclear weapons. 

Additional protocol between India and the IAEA.The bill states that Congress urges India to sign and adhere to an Additional Protocol with the IAEA at the earliest possible date. 

Implementation of safeguards agreement between India and the IAEA.H.R. 7081 requires that India's safeguards agreement with IAEA enter into force and that India file a declaration of civilian nuclear facilities under the safeguards agreement that is not "materially inconsistent" with the separation plan that India issued in 2006 before any licenses can be issued by the Nuclear Regulatory Commission under the agreement. 

Reporting to Congress.The legislation requires the prompt notification of Congress if India diverges from its separation plan in implementing its safeguards agreement.

 

 

Title II: Strengthening United States Nonproliferation Law Relating to Peaceful Nuclear Cooperation

Procedures regarding a subsequent arrangement on reprocessing. The bill establishes a procedure for Congressional review of any subsequent arrangement under the agreement that would allow India to reprocess spent nuclear fuel that was derived from U.S.-supplied reactor fuel or produced with U.S.-supplied equipment. Under current law (Section 131 of theAtomic Energy Act of 1954), such arrangements take effect 15 days after notice thereof is published in the Federal Register. 

Initiatives and negotiations relating to agreements for peaceful nuclear cooperation.H.R. 7081 requires the President to keep the Committee on Foreign Affairs of the House of Representatives and the Foreign Relations Committee of the Senate "fully and currently" informed of any initiative or negotiations on new or amended civilian nuclear cooperation agreements. 

United States government policy at the Nuclear Suppliers Group to strengthen the international nuclear nonproliferation regime.The legislation requires the President to certify that it is U.S. policy to work in the Nuclear Suppliers Group to achieve further restrictions on transfers of enrichment and reprocessing equipment or technology. 

Conforming amendments.The bill also directs the President to seek international agreement on procedures to guard against the diversion of heavy water from civilian to military programs, and requires the President to keep Congress regularly apprised of how that effort is proceeding.

 

 

Legislative History

On September 27, 2008, the House of Representatives passed H.R. 7081, the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act, by a vote of 298 to 117, with one member voting present.

 

 

Statement of Administration Policy

H.R. 7081was developed by the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations, and in consultation with the Department of State. The Bush Administration supports H.R. 7081; however, at the time of publication, the White House had not issued a Statement of Administration Policy (SAP) on the legislation.

 

Expected Amendments

The following amendment is expected to be introduced during floor debate of the H.R. 7081: 

An amendment offered by Senators Bingaman andDorgan to: 

•Prohibit nuclear trade with India in the event that India detonates a nuclear weapon. 

•Ensure that U.S. nuclear exports to India do not directly or indirectly assist India's nuclear weapons program and, in particular, have not assisted an Indian nuclear weapons test. Should such a test occur, this amendment: 1) asks the President to certify to Congress that U.S. exports have not assisted the detonation of a nuclear weapon; and 2) requires the President to review and implement applicable export control authorities for U.S. nuclear exports to other nuclear supplier nations that continue nuclear trade with India. 

The DPC will circulate a description of other possible amendments as information becomes available.

DPC