Nuclear Cooperation with Other Countries:
July 9, 2024
A Primer
Paul K. Kerr
In order for the United States to engage in significant civilian nuclear cooperation with other
Specialist in
states, it must conclude a framework agreement that meets specific requirements under Section
Nonproliferation
123 of the Atomic Energy Act (AEA). Significant nuclear cooperation includes the export of
reactors, critical parts of reactors, and reactor fuel. The AEA also provides for export control
Mary Beth D. Nikitin
licensing procedures and criteria for terminating cooperation. Congressional review is required
Acting Section Research
for Section 123 agreements; the AEA establishes special parliamentary procedures by which
Manager
Congress may act on a proposed agreement.
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Contents
What Is a “Section 123” Agreement? .............................................................................................. 1
Requirements Under the Atomic Energy Act ............................................................................ 2
Exempted vs. Nonexempted Agreements .................................................................................. 3
Congressional Review ..................................................................................................................... 3
Export Licensing ............................................................................................................................. 4
Iran-Related Restrictions ........................................................................................................... 5
Subsequent Arrangements ............................................................................................................... 6
Examples of Subsequent Arrangements .................................................................................... 7
U.S.-Japan Agreement ........................................................................................................ 7
U.S.-India Agreement ......................................................................................................... 7
Termination of Cooperation ............................................................................................................ 8
Part 810 Agreements ....................................................................................................................... 8
Tables
Table A-1. Key Dates .................................................................................................................... 10
Appendixes
Appendix A. Key Dates for Bilateral Civilian Nuclear Cooperation (“Section 123”)
Agreements................................................................................................................................. 10
Appendix B. Enrichment and Reprocessing Restrictions .............................................................. 13
Appendix C. Nuclear Cooperation Agreements Approvals Outside Atomic Energy Act
Process ........................................................................................................................................ 15
Contacts
Author Information ........................................................................................................................ 16
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What Is a “Section 123” Agreement?
Under the Atomic Energy Act (AEA) of 1954, as amended (P.L. 83-703; 42 U.S.C. §2153 et seq.),1 all significant U.S. nondefense nuclear cooperation with other countries requires a nuclear cooperation agreement.2 Significant nuclear cooperation includes the transfer of U.S.-origin special nuclear material3 subject to licensing for commercial, medical, and industrial purposes, and the export of reactors and critical parts of reactors. Section 123 agreements are required for the export of commodities under Nuclear Regulatory Commission (NRC) export licensing authority (10 C.F.R. 110).4
Such agreements, which are “congressional-executive agreements” requiring congressional approval, set the terms of reference and authorize cooperation but do not guarantee that cooperation will take place. The AEA includes requirements for an agreement’s content, conditions for the President to exempt an agreement from those requirements, presidential determinations and other supporting information to be submitted to Congress, conditions affecting the implementation of an agreement once it takes effect, and procedures for Congress to consider and approve the agreement.
Section 123 of the AEA requires that any agreement for nuclear cooperation meet nine nonproliferation criteria and that the President submit any such agreement to the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations. The Department of State is required to provide the President with an unclassified Nuclear Proliferation Assessment Statement (NPAS), which the President is to submit, along with the agreement, to those two committees. The State Department is also required to provide a classified annex to the NPAS, prepared in consultation with the Director of National Intelligence. The NPAS is meant to explain
1 The Atomic Energy Act (AEA) was amended by the Nuclear Nonproliferation Act of 1978 (NNPA) (P.L. 95-242) to include stringent nonproliferation requirements for significant U.S. nuclear exports. For example, the act required non-nuclear weapon states to have comprehensive International Atomic Energy Agency safeguards as a condition for entering into nuclear cooperation agreements with the United States. For existing and future agreements, the NNPA added a provision for Congress to review export licenses. The act also included a provision for halting exports if a country tested a nuclear device, violated safeguards agreements, or continued nuclear weapons-related activities.
The AEA also authorizes U.S. government transfer to foreign governments of information, as well as certain components, related to nuclear weapons. The AEA authorizes the export of nuclear reactors and related information for naval propulsion. This report does not cover such agreements.
2 Section 57b. (2) of the AEA allows for limited forms of nuclear cooperation related to the “development or production of any special nuclear material outside of the United States” without a nuclear cooperation agreement if that activity has been authorized by the Secretary of Energy following a determination that it “will not be inimical to the interest of the United States.” Agreements governing such cooperation are also known as “Section 810” agreements, after 10 Code of Federal Regulations Part 810. (See “Part 810 Agreements.”)
A nuclear cooperation agreement is not required for transmission of nuclear-related information, except for restricted data. “Restricted data,” defined by the statute, means “all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy.” Restricted data, however does not “include data declassified or removed from the Restricted Data [sic] category” pursuant to the AEA. A nuclear cooperation agreement is necessary, though not necessarily sufficient, to permit the transfer of restricted data.
3 “Special nuclear material,” defined by the AEA, means “(1) plutonium, uranium enriched in the isotopes 233 or 235, and any other material” that the Nuclear Regulatory Commission (NRC) “determines to be special nuclear material, but does not include source material, or (2) any material artificially enriched by any of the foregoing, but does not include source material.” The AEA defines “source material” as “(1) uranium, thorium, or any other material” determined by the NRC “to be source material; or (2) ores containing one or more of the foregoing materials, in such concentration as the Commission may by regulation determine.”
4 For a list of commodities, see http://www.nrc.gov/about-nrc/ip/export-import.html. 123 agreements are not required for U.S. exports of nuclear-related dual-use items, which are controlled for export by the Commerce Department.
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the agreement’s compliance with the AEA nonproliferation requirements. The President must also make a written determination “that the performance of the proposed agreement will promote and will not constitute an unreasonable risk to, the common defense and security.”
Requirements Under the Atomic Energy Act
Section 123 of the AEA specifies the necessary steps for engaging in nuclear cooperation with another country.
• Section 123a. states that the proposed agreement is to include the terms,
conditions, duration, nature, and scope of cooperation and lists nine criteria that the agreement must meet. This section also contains provisions for the President to exempt an agreement from any of these criteria and specifies information the executive branch must provide to Congress.
• Section 123b. specifies the process for submitting the text of the agreement to
Congress.
• Section 123c. specifies the procedure for congressional approval of cooperation
agreements that are limited in scope (e.g., do not transfer nuclear material or cover reactors larger than 5 megawatts electric [MWe]). This report does not discuss such agreements.
• Section 123d. specifies the procedure for congressional approval of agreements
that do cover significant nuclear cooperation (transfer of nuclear material or reactors larger than 5 MWe), including exempted agreements.
Section 123a., paragraphs (1) through (9), lists nine criteria that an agreement with a non-nuclear weapon state must meet unless the President determines an exemption is necessary. These include guarantees that
• safeguards on transferred nuclear material and equipment continue in perpetuity; • International Atomic Energy Agency (IAEA) comprehensive safeguards are
applied in non-nuclear weapon states;5
• nothing transferred is used for any nuclear explosive device or for any other
military purpose; 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 an IAEA safeguards agreement;
• no retransfer of material or restricted data occur without U.S. consent; • recipient states maintain physical security on transferred nuclear material; • recipient states obtain approval before enriching or reprocessing transferred
nuclear material or nuclear material produced with materials or facilities transferred pursuant to the agreement;
• recipient states obtain U.S. advance approval for storage of transferred plutonium
and highly enriched uranium; and
5 Comprehensive safeguards agreements are based on a model described in INFCIRC 153, which states that such agreements “should provide for the Agency’s right and obligation to ensure that safeguards will be applied” to all nuclear material of potential proliferation concern “in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”
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• any material or facilities produced or constructed through use of sensitive nuclear
technology transferred under the cooperation agreement is subject to all of the above requirements.
Although some experts have advocated requiring governments to forgo enrichment and reprocessing (a nonproliferation commitment sometimes referred to as the “Gold Standard”) as a condition for concluding a nuclear cooperation agreement, the Atomic Energy Act does not include such a requirement (see Appendix B).
Exempted vs. Nonexempted Agreements
The President may exempt an agreement for cooperation from any of the requirements in Section 123a. if the President determines that the requirement would be “seriously prejudicial to the achievement of U.S. nonproliferation objectives or otherwise jeopardize the common defense and security.” The AEA provides different requirements, conditions, and procedures for exempt and nonexempt agreements.6 To date, all of the Section 123 agreements in force are nonexempt agreements.7 The Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 (P.L. 109-401) exempted nuclear cooperation with India from some of the AEA’s requirements.8
Congressional Review
Under the AEA, Congress has the opportunity to review a nuclear cooperation agreement for two time periods totaling 90 days of continuous session.9 The President must submit the text of the proposed agreement, along with required supporting documents (including the unclassified NPAS) to the House Foreign Affairs Committee and the Senate Foreign Relations Committee. The President is to consult with the committees “for a period of not less than 30 days of continuous session.” After this period of consultation, the President is to submit the agreement to Congress, along with the classified annex to the NPAS and a statement of the President’s approval of the agreement and determination that it will not damage U.S. national security interests. This action begins the second period, which consists of 60 days of continuous session. In practice, the President has sent the agreement to Congress at the beginning of the full 90-day period, which begins on the date of transmittal. Typically, the 60-day period has immediately followed the expiration of the 30-day period. The President transmits the text of the proposed agreement along with a letter of support with a national security determination, the unclassified NPAS, its classified annex, and letters of support for the agreement from the Secretary of State and the Nuclear Regulatory Commission.
6 Nuclear cooperation agreements with nuclear weapon states recognized by the NPT are provided for in the AEA, and are therefore nonexempt agreements. The NPT defines nuclear-weapon states as those that exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967: China, France, Russia, the United Kingdom, and the United States. All other NPT states-parties are non-nuclear weapon states.
7 The United States has concluded more than 20 bilateral nuclear cooperation agreements, as well as similar agreements with the European Atomic Energy Community and the IAEA. See Nuclear Commerce: Governmentwide Strategy
Could Help Increase Commercial Benefits from U.S. Nuclear Cooperation Agreements with Other Countries, Government Accountability Office, GAO-11-36, November 2010.
8 See CRS Report RL33016, U.S. Nuclear Cooperation with India: Issues for Congress, by Paul K. Kerr. 9 When calculating periods of “continuous session” under the AEA, every calendar day is counted, including Saturdays and Sundays. Only days on which either chamber has adjourned for more than three days pursuant to the adoption a concurrent resolution authorizing the adjournment do not count toward the total. If Congress adjourns its final session sine die, continuity of session is broken, and the count must start anew when it reconvenes.
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If the President has not exempted the agreement from any Section 123a requirements, the agreement may enter into force after the end of the 60-day period unless, during that time, Congress adopts a joint resolution disapproving the agreement and the resolution becomes law. In order for an exempted agreement to enter into force, Congress must adopt a joint resolution of approval and it must become law by the end of the 60-day period. At the beginning of this 60-day period, joint resolutions of approval or disapproval, as appropriate, are to be automatically introduced in each house. During this period, the committees are to hold hearings on the proposed agreement and “submit a report to their respective bodies recommending whether it should be approved or disapproved.” If either committee has not reported the requisite joint resolution of approval or disapproval by the end of 45 days, the resolution is automatically discharged from further consideration of the measure. After the joint resolution is reported or discharged, Congress is to consider it under expedited procedures, as established by Section 130.i. of the AEA. Congress has used procedures outside the above-described process to adopt legislation approving some nuclear cooperation agreements (see Appendix C).
Section 202 of P.L. 110-369, the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act, which President Bush signed into law October 8, 2008, amended Section 123 of the AEA to require the President to keep the Senate Foreign Relations Committee and the House Foreign Affairs Committee “fully and currently informed of any initiative or negotiations relating to a new or amended agreement for peaceful nuclear cooperation.”
Export Licensing
The AEA sets out procedures for licensing exports to states with which the United States has nuclear cooperation agreements. (Sections 126, 127, and 128 codified as amended at 42 U.S.C. 2155, 2156, 2157). Each export of nuclear material, equipment, or technology requires a specific export license or other authorization. The NRC is required to meet criteria in Sections 127 and 128 when authorizing export licenses. These criteria are as follows:
• Application of IAEA safeguards to any material or facilities proposed to be
exported, material or facilities previously exported, and to any special nuclear material used in or produced through the use thereof (these are not comprehensive safeguards, but safeguards required under NPT Article III.2).
• Nothing exported can be used for any nuclear explosive device or for research on
or development of any nuclear explosive device.
• Recipient states must have adequate physical security on “such material or
facilities proposed to be exported and to any special nuclear material used in or produced through the use thereof.”
• Recipient states are not to retransfer exported nuclear materials, facilities,
sensitive nuclear technology, or “special nuclear material produced through the use of such material” without prior U.S. approval.
• Recipient states may not reprocess or alter in form or content exported nuclear
material or special nuclear material produced though the use of exported nuclear material without prior U.S. approval.
• The foregoing conditions must be applied to any nuclear material or equipment
that is produced or constructed under the jurisdiction of the recipient by or through the use of any exported sensitive nuclear technology.
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• Section 128 requires that recipient non-nuclear weapon states must have
comprehensive IAEA safeguards.
The President must judge that the proposed export or exemption will “not be inimical to the common defense and security” or that any export of that type “would not be inimical to the common defense and security because it lacks significance for nuclear explosive purposes.” The executive branch may also consider other factors, such as “whether the license or exemption will materially advance the nonproliferation policy of the United States by encouraging the recipient nation to adhere” to the NPT; whether “failure to issue the license or grant the exemption would otherwise be seriously prejudicial” to U.S. nonproliferation objectives; and whether the recipient nation has agreed to conditions identical to those laid out in Section 127.
Section 126b.(2) contains a provision for the President to authorize an export in the event that the NRC deems that the export would not meet Section 127 and 128 criteria. The President must determine “that failure to approve an export would be seriously prejudicial to the achievement of U.S. nonproliferation objectives or otherwise jeopardize the common defense and security.” In that case, the President would submit an executive order, along with a detailed assessment and other documentation, to Congress for 60 days of continuous session. After 60 days of continuous session, the export would executed unless Congress were to adopt a concurrent resolution of disapproval.10
Section 128b.(2) contains a provision for the President to waive termination of exports by notifying Congress that the state has adopted comprehensive safeguards or that the state has made significant progress toward adopting such safeguards, or that U.S. foreign policy interests dictate reconsideration. Such a determination would become effective unless Congress were to adopt a concurrent resolution of disapproval within 60 days of continuous session.
Additionally, Section 129b.(1) forbids the export of “nuclear materials and equipment or sensitive nuclear technology” to any country designated as a state sponsor of terrorism.11 Section 129b.(3) allows the President to waive this provision.
Iran-Related Restrictions
The Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA) of 2010 (P.L. 111-195), which became law on July 1, 2010, contains additional restrictions on licensing nuclear exports to countries with entities that have been sanctioned for conducting certain types of nuclear weapons-related transactions with Iran. Section 102a.(2)(A) of the law states that “no license may be issued for the export, and no approval may be given for the transfer or retransfer” of “any nuclear material, facilities, components, or other goods, services, or technology that are or would be subject to an agreement for cooperation between the United States” and such countries. Section 102 a.(2)(B), however, allows the President to waive these restrictions. Section 102a.(2)(C) allows the President to authorize licenses for nuclear exports “on a case-by-case
10 In light of the Supreme Court’s 1983 decision in INS v. Chadha, passing a concurrent resolution could invite a legal challenge because it is arguably unconstitutional. Although not provided for in the AEA, Congress could choose to pass a joint resolution of disapproval or a bill stating in substance it did not approve.
11 Section 129b. (2) states that the prohibitions described in the previous section “shall not apply to exports, reexports, transfers, or retransfers of radiation monitoring technologies, surveillance equipment, seals, cameras, tamper-indication devices, nuclear detectors, monitoring systems, or equipment necessary to safely store, transport, or remove hazardous materials ... except to the extent that such technologies, equipment, seals, cameras, devices, detectors, or systems are available for use in the design or construction of nuclear reactors or nuclear weapons.”
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basis” to entities (which have not been sanctioned) in countries subject to the restrictions described above.12
Subsequent Arrangements
Section 131 of the AEA details procedures for subsequent arrangements to nuclear cooperation agreements concluded pursuant to Section 123. Such arrangements are required for forms of nuclear cooperation requiring additional congressional approval, such as transfers of nuclear material or technology and cooperating states’ enrichment or reprocessing of nuclear materials transferred pursuant to the agreement. Subsequent arrangements may also include arrangements for physical security, storage, or disposition of spent nuclear fuel; the application of safeguards on nuclear materials or equipment; or “any other arrangement which the President finds to be important from the standpoint of preventing proliferation.”
Before entering into a subsequent arrangement, the Secretary of Energy must publish in the Federal Register a determination that the arrangement “will not be inimical to the common defense and security.” A proposed subsequent arrangement shall not take effect before 15 days after publication of both this determination and notice of the proposed arrangement. The Secretary of State is required to prepare an unclassified Nuclear Proliferation Assessment Statement (NPAS) if, “in the view of” the Secretary of State, Secretary of Energy, Secretary of Defense, or the Nuclear Regulatory Commission, a proposed subsequent arrangement “might significantly contribute to proliferation.” The Secretary of State is to submit the NPAS to the Secretary of Energy within 60 days of receiving a copy of the proposed subsequent arrangement. The President may waive the 60-day requirement if the Secretary of State so requests, but must notify both the House Foreign Affairs Committee and Senate Foreign Relations Committee of any such waiver and the justification for it. The Secretary of Energy may not enter into the subsequent arrangement before receiving the NPAS.
Section 131 specifies requirements for certain types of subsequent arrangements. Section 131b. describes procedures for the executive branch to follow before entering into a subsequent arrangement involving the reprocessing of U.S.-origin nuclear material or nuclear material produced with U.S.-supplied nuclear technology. These procedures also cover subsequent arrangements allowing the retransfer of such material to a “third country for reprocessing” or “the subsequent retransfer” of more than 500 grams of any plutonium produced by reprocessing such material. The Secretary of Energy must provide both the House Foreign Affairs Committee and Senate Foreign Relations Committee with a report describing the reasons for entering into the arrangement. Additionally, 15 days of continuous session must elapse before the Secretary may enter into the arrangement, unless the President judges that “an emergency exists due to unforeseen circumstances requiring immediate entry” into the arrangement. In such a case, the waiting period would be 15 calendar days.
If a subsequent arrangement described in the above paragraph involves a facility that has not processed spent nuclear reactor fuel prior to March 10, 1978 (when the Nuclear Nonproliferation Act of 1978 was enacted), the Secretaries of State and Energy must judge that the arrangement “will not result in a significant increase of the risk of proliferation.” In making this judgment, the Secretaries are to give “foremost consideration ... to whether or not the reprocessing or retransfer will take place under conditions that will ensure timely warning to the United States of any diversion well in advance of the time at which the non-nuclear weapon state could transform the
12 For details on these sanctions, see CRS Report RS20871, Iran Sanctions, by Kenneth Katzman.
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diverted material into a nuclear explosive device.”13 For a subsequent arrangement involving reprocessing in a facility that has processed spent nuclear reactor fuel prior to March 10, 1978, the Secretary of Energy will “attempt to ensure” that reprocessing “shall take place under conditions” that would satisfy the timely warning conditions described above. Section 131f. specifies procedures for congressional approval of subsequent arrangements involving the storage or disposition of foreign spent nuclear fuel in the United States.
Section 133 states that, before approving a subsequent arrangement involving certain transfers of special nuclear material, the Secretary of Energy must consult with the Secretary of Defense “on whether the physical protection of that material during the export or transfer will be adequate to deter theft, sabotage, and other acts of international terrorism which would result in the diversion of that material.”14 If the Secretary of Defense determines that “the export or transfer might be subject to a genuine terrorist threat,” that Secretary is required to provide a written risk assessment of the risk and a “description of the actions” that he or she “considers necessary to upgrade physical protection measures.”
Examples of Subsequent Arrangements
U.S.-Japan Agreement
The first test of the subsequent arrangement provisions came in August 1978, when the Department of Energy informed the House and Senate foreign relations committees of a Japanese request for approval of the transfer of spent fuel assemblies from Japan to the United Kingdom for reprocessing. This was the first “subsequent arrangement” approved. The United States and Japan entered into similar arrangements until 1988, when the two governments revised their nuclear cooperation agreement. That agreement included an “implementing agreement,” which provided 30-year advance consent for the transfer of spent fuel from Japan to Europe for reprocessing. While controversial, Congress did not block the nuclear cooperation agreement.
A subsequent arrangement was also necessary for the sea transport from Europe to Japan of plutonium that had been separated from the Japanese spent fuel. The Department of Energy approved a Japanese request for 30-year advance consent for the sea transport of plutonium. It was submitted to Congress as a subsequent arrangement, and took effect in October 1988.
U.S.-India Agreement
The U.S. nuclear cooperation agreement with India grants New Delhi consent to reprocess nuclear material transferred pursuant to the agreement, as well as “nuclear material and by-product material used in or produced through the use of nuclear material, non-nuclear material, or equipment so transferred.” However, the agreement also includes a requirement that India first build a new national reprocessing facility to be operated under IAEA safeguards. The two countries signed a subsequent arrangement on July 30, 2010, which governs the procedures for operating two new reprocessing facilities in India. The agreement also describes procedures for U.S. officials to inspect and receive information about physical protection measures at the new facilities. The arrangement would not have taken effect if Congress had adopted a joint resolution
13 These provisions also apply to facilities that, prior to March 18, 1978, did not have a subsequent arrangement for reprocessing.
14 This section applies to “the export or transfer of more than 2 kilograms of plutonium or more than 5 kilograms of uranium enriched to more than 20 percent in the isotope 233 or the isotope 235.”
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of disapproval within 30 days of continuous session; Congress did not adopt such a resolution.15 If India were to construct any additional facilities to reprocess fuel from U.S.-supplied reactors, a new subsequent arrangement would need to be submitted to Congress.
Termination of Cooperation
Section 129a. of the AEA requires that the United States end exports of nuclear materials and equipment or sensitive nuclear technology to any non-nuclear weapon state that, after March 10, 1978, the President determines to have detonated a nuclear explosive device; terminated or abrogated IAEA safeguards; materially violated an IAEA safeguards agreement; or engaged in activities involving source or special nuclear material and having “direct significance” for the manufacture or acquisition of nuclear explosive devices, and “has failed to take steps which, in the President’s judgment, represent sufficient progress toward terminating such activities.”
Section 129a. also requires that the United States halt exports to any nation the President determines to have materially violated the terms of an agreement for cooperation with the United States; assisted, encouraged, or induced any non-nuclear weapon state to obtain nuclear explosives or the materials and technologies needed to manufacture them; or retransferred or entered into an agreement for exporting reprocessing equipment, materials, or technology to a non-nuclear weapon state, unless in connection with an international agreement to which the United States subscribes.
The President can waive termination of exports if the President determines that “cessation of such exports would be seriously prejudicial to the achievement of U.S. nonproliferation objectives or otherwise jeopardize the common defense and security.” The President must submit this determination to Congress, which is then to be referred to the House Committee on Foreign Affairs and the Senate Foreign Relations Committee for 60 days of continuous session. The determination becomes effective unless Congress adopts a joint resolution opposing the determination.
Part 810 Agreements16
Section 57.b. (2) of the Atomic Energy Act allows for limited forms of nuclear cooperation related to the “development or production of any special nuclear material outside of the United States” if that activity has been authorized by the Secretary of Energy following a determination that it “will not be inimical to the interest of the United States.” The Secretary may only make such a finding with “the concurrence of the Department of State, and after consultation with the Nuclear Regulatory Commission [NRC], the Department of Commerce, and the Department of Defense.”17 Authorizations of such activities are also known as “Part 810 authorizations,” after 10 Code of Federal Regulations (C.F.R.) Part 810. Part 810 regulations describe activities that are “generally authorized” by the Secretary of Energy and activities that require “specific authorization” by the Secretary. Some “generally authorized activities” are limited to a list of
15 Section 201 of the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act (P.L. 110-369), which approved the U.S.-India cooperation agreement, specifies procedures (different from those described in the Atomic Energy Act) for Congress to consider subsequent arrangements to that agreement.
16 See CRS In Focus IF11183, Nuclear Cooperation: Part 810 Authorizations, by Paul K. Kerr and Mary Beth D. Nikitin.
17 The Secretary must also consult the Office of the Director of National Intelligence in the case of transfers to China or Russia.
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“generally authorized destinations.”18 These regulations also detail “reporting requirements for authorized activities.”
Part 810 authorizations mostly involve unclassified nuclear technology transfer and services, such as nuclear reactor designs, nuclear facility operational information and training, and nuclear fuel fabrication. Civil nuclear cooperation agreements under Section 123 of the AEA are not required for an 810 authorization or for transmission of nuclear-related information, except for restricted data. The NRC may also authorize activities governed by Part 810 authorizations under a 123 agreement or under a subsequent arrangement to such an agreement.
Part 810.9 includes “[w]hether the United States has an agreement for cooperation in force covering exports to the country or entity involved” as a factor for the Secretary of Energy to use in determining that an activity “will not be inimical to the interest [sic] of the United States.” Moreover, the list of “generally authorized destinations” is “based principally on the United States agreements for civil nuclear cooperation,” according to guidance from the National Nuclear Security Administration.19
18 A list of such destinations is available at https://www.law.cornell.edu/cfr/text/10/appendix-A_to_part_810. 19 https://nnsa.energy.gov/sites/default/files/nnsa/inlinefiles/nei_faqs_final_9-12-16_final_gc-53_adh.pdf.
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Appendix A. Key Dates for Bilateral Civilian
Nuclear Cooperation (“Section 123”) Agreements
Table A-1. Key Dates
Most Recent
Agreement
Original
Country
Signed
Entered into Force Duration
Expiration
Renewal Termsa Agreementb
Argentina
February 29, 1996
October 16, 1997
30 years
October 16, 2027
Extension by agreement of the parties
Australiac
May 4, 2010
December 22, 2010
30 years
December 22,
Automatic 5-yr
1956
2040
renewals after 30 years
Brazil
October 14, 1997
September 15, 1999
30 years
September 15,
Extension by
1972
2029
agreement of the parties
Canada
June 23, 1999
December 13, 1999
30 years
January 1, 2030
Automatic 5-yr
1955
renewals after 30 years
Chinad
April 13, 2015
October 29, 2015
30 years
October 29, 2045
None specified
1985
European
November 7, 1995
April 12, 1996
30 years
April 12, 2026
Automatic 5-yr
1958
Atomic
renewals after 30
Energy
years
Community (Euratom)e
Indiaf
October 10, 2008
December 6, 2008
40 years
December 6, 2048
Automatic 10-yr renewals after 40 years
Indonesia
June 30, 1980
December 30, 1981
50 years
December 30,
None specified
1960
2031
International May 11, 1959
August 7, 1959
95 years
August 7, 2054
None specified
1959
Atomic
(amended
Energy
in 1974,
Agency
1980,
(IAEA)
renewed in 2014)
Japan
November 4, 1987
July 17, 1988
30 years
July 17, 2018
Remains in force
1968
until terminated by a party
Kazakhstan
November 18, 1997 November 5, 1999
30 years
November 5, 2029 None specified
Republic of
November 24, 1972 November 25, 2015
20 years
November 24,
Automatic 5-yr
1956
Korea
(proposed renewal
2035
renewals after 20
agreement signed
years
June 15, 2015)
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Most Recent
Agreement
Original
Country
Signed
Entered into Force Duration
Expiration
Renewal Termsa Agreementb
Mexico
May 7, 2018
November 2, 2022
30 years
November 2, 2052 None specified
Morocco
May 30, 1980
May 16, 1981
30 years
May 16, 2021
Automatic 5-yr renewals after 30 years
Norwayg
June 11, 2016
January 19, 2017
30 years
January 19, 2047
None specified
1984
Philippines
November 16, 2023 July 2, 2024
30 years
Thirty years after
Discussions on
entry into force
extension to begin no less than 2 years before expiration
Russian
May 6, 2008
January 11, 2011
30 years
January 11, 2041
None specified
Federation
South
August 25, 1995
December 4, 1997
25 years + 1995 agreement
None specified
1957
Africah
4-year
expired December
extensionc 4, 2022. Extension
in force until December 4, 2026
Switzerland
October 31, 1997
June 23, 1998
30 years
June 23, 2028
Automatic 5-yr
1965
renewals after 30 years
Taiwan
December 20, 2013
June 22, 2014
amended
none
n/a
1955
(TECRO)
in 1974, to 30 years; renewed in 2014 to indefinite duration
Turkey
July 26, 2000
June 2, 2008
15 years
June 2, 2023
Automatic 5-yr renewals after 15 years
Ukraine
May 6, 1998
May 28, 1999
30 years
May 28, 2029
None specified
United Arab May 21, 2009
December 17, 2009
30 years
December 17,
None specified
Emirates
2039
United
May 4, 2018
December 31, 2020
30 years
December 31,
None specified
Formerly
Kingdom
2050
under
EURATOM
agreement
Vietnam
May 6, 2014
October 3, 2014
30 years
October 3, 2044
Automatic 5-yr
renewals after 30 years
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Sources: CRS; Text of Agreements; U.S. Department of Energy, National Nuclear Security Administration, “123 Agreements for Peaceful Cooperation.” https://www.energy.gov/nnsa/123-agreements-peaceful-cooperation. a. If renewal terms are not specified, then a new Section 123 agreement would need to be negotiated and
submitted to Congress for the required review.
b. The “Original Agreement” field refers to the year that the first civilian nuclear cooperation agreement was
concluded with that country. If it is blank, the current agreement is the first such agreement.
c. A bilateral Section 123 agreement on the Exchange of Naval Nuclear Propulsion Information was concluded
in 2021. Agreement Between the United States, Australia, and the United Kingdom on the Exchange of Naval
Nuclear Propulsion Information, Message from the President of the United States, 117th Cong., 1st sess., H.Doc. 117-77, December 2, 2021.
d. P.L. 99-183 approved the original 1985 agreement but prohibited licenses from being issued until the
President certified that transferred items would be used for solely peaceful purposes and reported to Congress on China’s nonproliferation policies. Fol owing the Tiananmen Square crackdown, P.L. 101-246 (FY1990 Foreign Relations Authorization Act) also suspended nuclear cooperation with China. President Clinton issued the required waiver, report, and certification in January 1998. The required congressional review period ended on March 18, 1998, and implementation of the agreement was then allowed. See also
CRS Report RL33192, U.S.-China Nuclear Cooperation Agreement, by Mark Holt, Mary Beth D. Nikitin, and Paul K. Kerr.
e. Euratom member states include Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden.
f.
P.L. 109-401 and P.L. 110-369 approved the agreement with conditions. See CRS Report RL33016, U.S.
Nuclear Cooperation with India: Issues for Congress, by Paul K. Kerr.
g. P.L. 114-320 approved the 2016 renewal agreement. h. Text of Proposed Agreement for Cooperation Between the Government of the U.S. and the Republic of South Africa
Concerning Peaceful Uses of Nuclear Energy, Communication from the President of the United States, 117th Cong., 2nd sess., H.Doc. 117-139, September 2, 2022.
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Appendix B. Enrichment and Reprocessing
Restrictions
Although some experts have advocated requiring governments to forgo enrichment and reprocessing (a nonproliferation commitment sometimes referred to as the “Gold Standard”) as a condition for concluding a nuclear cooperation agreement, the Atomic Energy Act (AEA) does not include such a requirement. In recent years, the United States has attempted to persuade certain countries with which it is negotiating nuclear cooperation agreements to forgo enrichment and reprocessing and conclude Additional Protocols to their International Atomic Energy Agency (IAEA) safeguards agreements; past U.S. nuclear cooperation agreements have not included these additional components. The AEA does mandate that U.S. nuclear cooperation agreements require U.S. consent for any “alteration in form or content” (to include enrichment or reprocessing) of U.S.-origin material or any material processed in a plant containing transferred U.S. nuclear technology. Such agreements also require U.S. consent for any retransfer of material or technology.
The United States has argued that its December 2009 nuclear cooperation agreement with the United Arab Emirates (UAE) could set a useful precedent for mitigating the dangers of nuclear proliferation.20 For example, President Barack Obama’s May 21, 2009, letter transmitting the agreement to Congress argued that the agreement had “the potential to serve as a model for other countries in the region that wish to pursue responsible nuclear energy development.” Similarly, then-State Department spokesperson P.J. Crowley described the agreement as “the gold standard” during an August 5, 2010, press briefing, although the Obama Administration generally did not use this term when describing its nuclear cooperation policies.
The U.S.-UAE agreement’s status as a potential model is grounded in two nonproliferation provisions not found in other U.S. nuclear cooperation agreements. First, the agreement requires the country to bring into force the Additional Protocol to its safeguards agreement before the United States licenses “exports of nuclear material, equipment, components, or technology” pursuant to the agreement.21 Second, the agreement states that the UAE
shall not possess sensitive nuclear facilities within its territory or otherwise engage in activities within its territory for, or relating to, the enrichment or reprocessing of material, or for the alteration in form or content (except by irradiation or further irradiation or, if agreed by the Parties, post-irradiation examination) of plutonium, uranium 233, high enriched uranium, or irradiated source or special fissionable material.
The U.S.-UAE agreement also provides the United States with the right to terminate nuclear cooperation and to require the return of any nuclear “material, equipment or components ... and any special fissionable material produced through their use” if, after the agreement’s entry into force, the UAE “possesses sensitive nuclear facilities within its territory or otherwise engages in activities within its territory relating to enrichment of uranium or reprocessing of nuclear fuel.”22
Notwithstanding its characterization of the U.S.-UAE agreement, the Obama Administration announced in December 2013 after an interagency review that renouncing domestic enrichment
20 For more information, see CRS Report R40344, The United Arab Emirates Nuclear Program and Proposed U.S.
Nuclear Cooperation, by Christopher M. Blanchard and Paul K. Kerr.
21 The IAEA Board of Governors approved the Protocol March 3, 2009. The UAE signed it the next month, and brought it into force December 20, 2010.
22 The AEA requires that there 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.
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and reprocessing would not be a prerequisite to concluding a nuclear cooperation agreement for all countries, and each partner country would be considered individually.23 The U.S. nuclear cooperation agreement with Vietnam, which the two governments concluded in 2014, did not include a provision requiring the country to forgo enrichment and reprocessing, although the agreement’s preamble includes a political commitment stating that Vietnam intends to rely on international markets for its nuclear fuel supply, rather than acquiring sensitive nuclear technologies.24
23 Daniel Horner, “U.S. Policy of Nuclear Pacts Detailed,” Arms Control Today, January/February 2014. 24 For more information about the Vietnam agreement, see CRS Report R43433, U.S.-Vietnam Nuclear Cooperation
Agreement: Issues for Congress, by Mary Beth D. Nikitin, Mark Holt, and Mark E. Manyin.
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Appendix C. Nuclear Cooperation Agreements
Approvals Outside Atomic Energy Act Process
Congress has used legislation to approve nuclear cooperation agreements that did not use the legislative process mandated by the Atomic Energy Act (AEA) of 1954, as amended.
Australia25
On May 5, 2010, President Barack Obama submitted a renewed U.S.-Australia nuclear cooperation agreement to Congress for approval. H.R. 6411, which the House adopted on November 30, 2010, would have approved the agreement even if there had not been sufficient legislative days remaining in the 111th Congress; the Senate did not adopt its version of the bill (S. 3844). These bills were not needed because the 111th Congress contained a sufficient number of days for the agreement to enter into force.
China26
In 1985, President Ronald Reagan submitted the first U.S.-China nuclear cooperation agreement to Congress, which adopted a joint resolution, P.L. 99-183, requiring that the President make certain nonproliferation-related certifications in order for the agreement to be implemented. P.L. 99-183 required a presidential certification and a report followed by a period of 30 days of continuous session of Congress. P.L. 101-246, the Foreign Relations Authorization Act for Fiscal Years 1990 and 1991, imposed sanctions on China, including suspending nuclear cooperation and requiring an additional presidential certification on Beijing’s nuclear nonproliferation assurances. Before a summit with China, President William Clinton on January 12, 1998, signed the required certifications regarding China’s nuclear nonproliferation policy and practices. Clinton also issued a certification and waived a sanction imposed under P.L. 101-246. Congressional review ended on March 18, 1998, allowing the agreement to be implemented.
India27
P.L. 109-401, which became law on December 18, 2006, permitted the President to waive several provisions of the AEA with respect to a nuclear cooperation agreement with India. On September 10, 2008, President George W. Bush submitted to Congress a determination that P.L. 109-401’s requirements for such an agreement to proceed had been met. President Bush signed P.L. 110-369, which approved the agreement, into law on October 8, 2008.
Norway
The President submitted an extension of the U.S.-Norway nuclear cooperation agreement to Congress on June 14, 2016. P.L. 114-320, which became law on December 16, 2016, approved the agreement “[n]otwithstanding the provisions for congressional consideration” in the AEA,
25 For more information, see CRS Report R41312, U.S.-Australia Civilian Nuclear Cooperation: Issues for Congress, by Mary Beth D. Nikitin and Bruce Vaughn. Mary Beth D. Nikitin and Bruce Vaughn.
26 For more information, see CRS Report RL33192,
26 For more information, see CRS Report RL33192,
U.S.-China Nuclear Cooperation Agreement, by Mark Holt, Mary , by Mark Holt, Mary
Beth D. Nikitin, and Paul K. Kerr. Beth D. Nikitin, and Paul K. Kerr.
27 For more information, see CRS Report RL33016,
27 For more information, see CRS Report RL33016,
U.S. Nuclear Cooperation with India: Issues for Congress, by Paul , by Paul
K. Kerr. K. Kerr.
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thereby addressing concerns that that there was an insufficient number of legislative days
thereby addressing concerns that that there was an insufficient number of legislative days
remaining in the 114th Congress for congressional consideration. remaining in the 114th Congress for congressional consideration.
Author Information
Paul K. Kerr Paul K. Kerr
Mary Beth D. Nikitin
Mary Beth D. Nikitin
Specialist in Nonproliferation
Specialist in Nonproliferation
Acting Section Research Manager
Acting Section Research Manager
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
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