Order Code RL33016
CRS Report for Congress
Received through the CRS Web
U. S. Nuclear Cooperation With India:
Issues for Congress
Updated October 24, 2005
Sharon Squassoni
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress

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U. S. Nuclear Cooperation With India:
Issues for Congress
Summary
In 1974, India exploded a “peaceful” nuclear device and demonstrated that
nuclear technology transferred for peaceful purposes could be used to produce
nuclear weapons. As a result, the United States has refused nuclear cooperation with
India for twenty-five years and has convinced other states to do the same.
On July 18, 2005, President Bush announced a new global partnership with
India to promote stability, democracy, prosperity and peace. The desire to transform
relations with India, according to Administration officials, is “founded upon a
strategic vision that transcends even today’s most pressing security concerns.”
Nuclear cooperation is one element of that strategic vision. President Bush said he
would “work to achieve full civil nuclear energy cooperation with India” and would
“also seek agreement from Congress to adjust U.S. laws and policies.”
Administration officials have described the agreement as a “win” for
nonproliferation because it would bring India into the nonproliferation mainstream.
At a time when the United States has called for all states to strengthen their domestic
export control laws and for tighter multilateral controls, U.S. nuclear cooperation
with India would require loosening its own nuclear export legislation, as well as
creating an Nuclear Suppliers Group exception. It would reverse nearly three
decades of U.S. nonproliferation policy and practice towards India. Many observers
believe India requires a new paradigm, but some of those also believe the agreement
should contain additional restrictions, like a ban on further nuclear material
production for Indian nuclear weapons. Some believe this agreement undercuts the
basic bargain of the NPT, could undermine hard-won restrictions on nuclear supply,
and could prompt some suppliers, like China, to justify supplying other states outside
the NPT regime, like Pakistan.
India’s uncertain support for U.S. efforts to keep Iran from developing nuclear
weapons may be an important consideration for some members of Congress. Some
have questioned why the United States would reward India, given its alliance with
Iran. Other members of Congress have questioned whether nuclear cooperation is the
appropriate “carrot” in U.S.-Indian relations, in contrast to other options like
supporting a permanent Indian seat on the UN Security Council.
Significant U.S.-Indian nuclear cooperation cannot go forward without action
by Congress. India does not meet existing nonproliferation criteria under current
U.S. law (Atomic Energy Act; P.L. 95-242; 42 U.S.C. 2153 et seq.), so the Bush
Administration could use exemptions and waivers under current law; propose
legislation to amend certain portions of the Atomic Energy Act; or propose stand-
alone legislation to create an exception for India. The Administration has not
revealed its proposal yet. Congress may also choose to approve an agreement with
conditions, as it did for the 1985 nuclear cooperation agreement with China. This
report will be updated as necessary.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Global Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Issues for Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Strategy vs. Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Impact on U.S. Nonproliferation Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Iran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Restricting Enrichment and Reprocessing . . . . . . . . . . . . . . . . . . . . . . . 6
Other Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Impact on the Nonproliferation Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
NSG Cohesion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Effect on NPT Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Missed Opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Way Ahead: Challenges and Uncertainties . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Negotiating with India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
NSG Consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Consulting with Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Complying with Existing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Amending the Atomic Energy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Stand-Alone Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Potential Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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U. S. Nuclear Cooperation With India:
Issues for Congress
Background
The United States actively promoted nuclear energy cooperation with India from
the mid-1950s, building nuclear reactors (Tarapur), providing heavy water for the
CIRUS reactor, and allowing Indian scientists to study at U.S. nuclear laboratories.
Although India was active in negotiations of the 1968 Nuclear Nonproliferation
Treaty (NPT), India refused to join the NPT on grounds that it was discriminatory.
The “peaceful” nuclear test in 1974 demonstrated that nuclear technology transferred
for peaceful purposes could be used to produce nuclear weapons.1 In the United
States, the Congress responded by passing the Nuclear Non-Proliferation Act of 1978
(NNPA, P.L. 95-242), which imposed tough new requirements for U.S. nuclear
exports to non-nuclear-weapon states — full-scope safeguards and termination of
exports if such a state detonates a nuclear explosive device or engages in activities
related to acquiring or manufacturing nuclear weapons, among other things.2
Internationally, the United States created the Nuclear Suppliers Group (NSG) in 1975
to implement nuclear export controls. The NSG published guidelines in 1978 “to
apply to nuclear transfers for peaceful purposes to help ensure that such transfers
would not be diverted to unsafeguarded nuclear fuel cycle or nuclear explosive
activities.”3
1 For an excellent analysis of the proliferation implications of U.S. nuclear exports to India,
see Gary Milhollin, “Stopping the Indian Bomb,” The American Journal of International
Law, July 1987, 81 A.J.I.L. 593. See [http://www.wisconsinproject.org/pubs/
articles/1987/stoppingindianbomb.htm]
2 The NNPA, in part, amended the Atomic Energy Act of 1954. See 42 U.S.C. 2151 et seq.
Prior to the 1970 NPT, safeguards (inspections, material protection, control and accounting)
were applied to specific facilities or materials (known as INFCIRC/66-type agreements).
The NPT required safeguards on all nuclear material in all peaceful nuclear activities for
non-nuclear-weapon-state parties (those states not having detonated a nuclear explosive
device prior to Jan. 1, 1967).
3 IAEA Document INFCIRC/254, Guidelines for Transfers of Nuclear-related Dual-use
Equipment, Materials, Software, and Related Technology. Part 1 covers “trigger list” items:
those especially designed or prepared for nuclear use: (i) nuclear material; (ii) nuclear
reactors and equipment; (iii) non-nuclear material for reactors; (iv) plant and equipment for
reprocessing, enrichment and conversion of nuclear material and for fuel fabrication and
heavy water production; and (v) associated technology. Part 2 covers dual-use items.
Additional NSG criteria for dual-use exports include NPT membership and/or full-scope
safeguards agreement; appropriate end-use; whether the technology would be used in a
reprocessing or enrichment facility; the state’s support for nonproliferation; and the risk of
(continued...)

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CRS-2
Conditioning U.S. nuclear exports on non-nuclear-weapon states having full-
scope safeguards created a problem particularly for U.S. fuel supplies to India’s
safeguarded Tarapur reactors. When the NNPA was enacted, the United States was
supplying fuel. The Carter Administration exported two more shipments under
executive order after the Nuclear Regulatory Commission’s (NRC) refused to
approve an export license on nonproliferation conditions. Given slim support in
Congress, no more exports were attempted after 1980. France supplied fuel under
the terms of the U.S. agreement with India until France adopted a full-scope
safeguards requirement also (1984 to 1995). After the NSG adopted the full-scope
safeguards condition in 1992, China picked up the slack. Russia supplied fuel from
2001 to 2004.4
Global Partnership5
The Bush Administration had been considering a strategic partnership with India
as early as 2001. Indian officials identified their growing energy needs as an area for
cooperation, particularly in nuclear energy. The U.S.-India 2004 Next Steps in
Strategic Partnership (NSSP) initiative included expanded cooperation in civil
nuclear technology as one of three goals. Phase I of the NSSP, completed in
September 2004, required addressing proliferation concerns and ensuring compliance
with U.S. export controls.6
On July 18, 2005, President Bush announced the creation of a global partnership
with India in a joint statement with Prime Minister Manmohan Singh.7 Noting the
“significance of civilian nuclear energy for meeting growing global energy demands
in a cleaner and more efficient manner,” President Bush said he would “work to
achieve full civil nuclear energy cooperation with India” and would “also seek
agreement from Congress to adjust U.S. laws and policies.”
Three paragraphs of the joint statement were devoted to civil nuclear
cooperation. The statement noted that the United States “will work with friends and
allies to adjust international regimes to enable full civil nuclear energy cooperation
and trade with India, including but not limited to expeditious consideration of fuel
3 (...continued)
potential nuclear terrorism.
4 China was not a member of the NSG until 2004. Russia, an NSG member, exported fuel,
citing a safety exception, but NSG members objected so strongly that Russia suspended
supply in 2004. Russia may be reconsidering. “Russia to Review Tarapur Fuel Decision”
South Asian Media Net, May 10, 2005.
5 See also CRS Report RL33072, U.S. - India Bilateral Agreements in 2005,and CRS Issue
Brief, India-U.S. Relations.
6 See fact sheet on the NSSP at [http://www.state.gov/r/pa/prs/ps/2004/36290.htm].
7 Joint Statement Between President George W. Bush and Prime Minister Manmohan Singh,
White House Press Release, July 18, 2005, Washington, D.C, (hereafter “July 18 Joint
Statement”) available at [http://www.whitehouse.gov/news/releases/2005/07/20050718-
6.html].

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CRS-3
supplies for safeguarded nuclear reactors at Tarapur.” The United States committed
to encouraging its partners to consider this request — a reversal in the U.S. position,
which has been to ban fuel to Tarapur — and to consulting with its partners on Indian
participation in ITER (collaboration on fusion research) and in the Generation IV
International Forum for future reactor design.
The leaders agreed to create a working group, to negotiate the scope and pace
of nuclear cooperation, and implementation of Indian commitments. Prime Minister
Singh conveyed that India “ would take on the same responsibilities and practices and
acquire the same benefits and advantages as other leading countries with advanced
nuclear technology, such as the United States.”8 India agreed to:
! identify and separate its civilian and military nuclear facilities and
programs;
! declare its civilian facilities to the International Atomic Energy
Agency (IAEA);
! voluntarily place civilian facilities under IAEA safeguards;
! sign an Additional Protocol for civilian facilities;
! continue its unilateral nuclear test moratorium;
! work with the United States to conclude a Fissile Material Cut Off
Treaty (FMCT);
! refrain from transferring enrichment and reprocessing technologies
to states that do not have them, as well as support international
efforts to limit their spread;
! secure its nuclear materials and technology through comprehensive
export control legislation and through harmonization and adherence
to Missile Technology Control Regime (MTCR) and NSG
guidelines.
Issues for Consideration
Under current U.S. law, significant nuclear cooperation with a state that does
not have full-scope nuclear safeguards requires Congressional action (described
below). The House International Relations Committee held a hearing on September
8, 2005, on “The U.S. and India: An Emerging Entente?” and there may be several
more hearings, both in the House and Senate, as the details of cooperation emerge.
Some of the issues discussed below arose during the September 8 hearing; others
may emerge as the Administration proceeds to implement the agreement.
Strategy vs. Tactics
There appears to be broad support for cultivating a close relationship with India
for many reasons. The Bush Administration has described its “desire to transform
relations with India” as “founded upon a strategic vision that transcends even today’s
8 July 18 Joint Statement.

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CRS-4
most pressing security concerns.”9 Yet, some members of Congress have suggested
that civil nuclear cooperation may not be the most appropriate vehicle for advancing
our relationship. In a House International Relations Committee hearing on
September 8, 2005, Congressman Jim Leach stated,
I don’t know any member of Congress that doesn’t want to have a warming of
relations with the government of India. This is a time that is extremely
appropriate. I also don’t know many members of Congress who are pushing for
the precise commitment that the administration has made.10
Congressman Leach instead suggested that U.S. support for a permanent seat for
India on the United Nations Security Council might have been a more appropriate
gesture. In response, Under Secretary of State for Political Affairs Nicholas Burns
noted that U.S. efforts to expand the security council would have to wait until after
UN reform.11
Other observers outside of Congress have questioned whether U.S. energy
assistance should focus on expanding nuclear power, in contrast to other energy
alternatives. Henry Sokolski, of the Nonproliferation Policy Education Center, has
argued that Indian energy needs might be better met through free market allocation,
including improved efficiency. He asserts that nuclear power is the least leveraged
of India’s options to meet India’s energy needs, given that it currently provides only
2.7% of installed electrical capacity.12 India’s projections of its nuclear energy needs
are predicated on an estimated annual growth rate of 8%, which some observers
believe may be unrealistic.13
Impact on U.S. Nonproliferation Policies
The Administration has characterized civil nuclear cooperation with India as a
“win” for nonproliferation because it would bring India into the nonproliferation
“mainstream.” In short, the Administration is proposing that India should be courted
as an ally in U.S. (not global) nonproliferation policy, rather than continue as a target
of U.S. (and global) nonproliferation policy. India should become an ally for three
reasons: past policies have not worked; India has a relatively good nonproliferation
record anyway, and India could be a useful ally in the nonproliferation regime.
Some observers, however, are concerned that India may not support U.S.
nonproliferation policies sufficiently to warrant nuclear cooperation, particularly
9 Statement of Under Secretary of State for Political Affairs, R. Nicholas Burns, September
8, 2005, House Committee on International Relations, Hearing on “The U.S. and India: An
Emerging Entente?” (hereafter referred to as “HIRC US-India hearing”) p. 1.
10 Remarks by Congressman Jim Leach, Sept. 8, 2005, HIRC US-India Hearing.
11 Ibid.
12 Henry Sokolski, “Implementing the Indian Nuclear Deal: What’s at Risk, What Congress
Should Require,” Briefing to Congress, Sept. 2005.
13 See “India’s Growth Target Unrealistic,” Financial Times, Jan. 23, 2003, which quotes
the Asia Development Bank.

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CRS-5
where the United States faces its greatest nuclear proliferation threat: Iran. For
example, at the September 8 hearing, several members of Congress questioned
whether the United States had obtained assurances from India of its support on Iran
before it issued the July 18 joint statement.
Iran. Two factors may present challenges to Indian support for U.S. policies
toward Iran. First, India has a growing strategic relationship with Iran, not limited
to its interest in a proposed $7.4 billion, 2800-km-long gas pipeline between Iran,
Pakistan, and India. Second, India also has a tradition of foreign policy
independence, as a long-time leader of the Non-Aligned Movement (NAM) states
and as a vigorous opponent of the discriminatory nature of the Nuclear
Nonproliferation Treaty.14 Indian officials have stated they do not support a nuclear
weapons option for Iran. However, they do not agree with the United States on the
need to refer Iran’s nuclear program to the U.N. Security Council, which the United
States has proposed for two years, and on the need to limit Iran’s nuclear fuel cycle
development.
On September 24, 2005, the IAEA Board of Governors passed a resolution
(GOV/2005/77) finding Iran in non-compliance with its safeguards agreement. The
resolution, according to several observers, was weaker than the United States hoped
for on two counts: it did not pass by consensus (Venezuela voted against it and 12
countries abstained) and it did not refer the matter immediately to the Security
Council. India voted for the resolution which called for Iran again to help resolve
outstanding questions, and explained its vote this way:
In our Explanation of Vote, we have clearly expressed our opposition to Iran
being declared as noncompliant with its safeguards agreements. Nor do we agree
that the current situation could constitute a threat to international peace and
security. Nevertheless, the resolution does not refer the matter to the Security
Council and has agreed that outstanding issues be dealt with under the aegis of
the IAEA itself. This is in line with our position and therefore, we have extended
our support.15
According to Indian Foreign Secretary Shyam Saran, India voted for the
resolution and against the majority of NAM states which abstained, because it felt
obligated after having pressured the EU-3 to omit reference to immediate referral to
the UN Security Council.16 Two future tests may indicate the depth of India’s
support: the next Board decision to immediately refer Iran to the Security Council,
and consideration of the matter by the Security Council.
14 See Miriam Rajkumar, “Indian Independence,” Carnegie Analysis, Sept. 20, 2005, at
[http://www.carnegieendowment.org/npp/publications/index.cfm?fa=view&id=17486]
15 Briefing by MEA Official Spokesperson on Draft Resolution on Iran in IAEA, New Delhi,
S e p t e mb e r 2 4 , 2 0 0 5 , avai l abl e at [ ht t p: / / ww w . i n d i a n e mb a s s y. o r g/
press_release/2005/Sept/16.htm]
16 “Press Briefing by Foreign Secretary on the events in UN and IAEA,” New Delhi,
S eptember 26, 2005, availa b l e a t [ h t t p : / / w w w . i n d i a n e mb a s s y. o r g/
press_release/2005/Sept/29.htm]

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CRS-6
A further issue is India’s support for curtailing Iran’s peaceful nuclear program.
India has always been an advocate of states’ rights to develop the peaceful uses of
nuclear energy and for thirty years has derided the NPT and nonproliferation policies
as discriminatory. The official Iranian press agency reported Prime Minister Singh
as telling President Ahmadinejad on September 22 that solutions to Iran’s nuclear
problem should be based on the principle that Iran as an NPT member should retain
its lawful rights.17 On September 26, Foreign Secretary Saran told the press that
“With respect to Iran’s right to peaceful uses of nuclear energy, that is something
which we have ourselves no reservations about.”18
Restricting Enrichment and Reprocessing. On July 18, India agreed to
refrain from transferring enrichment and reprocessing technologies to states that do
not have already have those technologies and also agreed to support international
efforts to limit their spread. This could be an important step in moving India
politically into the mainstream of nonproliferation efforts, since India historically has
stood with non-aligned nations in championing the inalienable right to develop
peaceful uses of nuclear energy. To some observers, U.S. efforts to restrict
development of certain aspects of the nuclear fuel cycle (enrichment and
reprocessing) that are most useful in a nuclear weapons development program are
seen as creating a new category of “have-nots” — those states that can have some
peaceful nuclear technology but cannot be trusted with it all. In other words, states
like Japan, Germany, and Brazil might be trusted with sensitive technologies, but
states like Iran and North Korea cannot be trusted. India has supported EU-3
negotiations with Iran, which have as their ultimate objective getting Iran to walk
away from enrichment and reprocessing, but India has also, at least rhetorically,
supported states’ inalienable rights to the peaceful nuclear fuel cycle. Nonetheless,
there is little evidence thus far that India had exported such technology abroad in the
past.

One question that has not been raised publicly yet is whether or not U.S.
cooperation with India will include any technology or assistance related to
enrichment or reprocessing. A U.S. agreement for nuclear cooperation is required
to specify the extent of cooperation. Some Indian experts have suggested that the
United States has little to offer in terms of reactor technologies, since U.S. reactors
use low-enriched uranium and India hopes to continue to use natural uranium in its
ultimate quest to use thorium as fuel. In any case, provision of U.S. assistance in
areas related to enrichment or reprocessing could be perceived by many as difficult
to safeguard against diversion to the Indian nuclear weapons program, and could
potentially hurt U.S. efforts to restrict the spread of that technology. The 1985
peaceful nuclear cooperation agreement with China — the only other peaceful
nuclear cooperation agreement the United States has with a nuclear weapon state —
did not allow cooperation in sensitive nuclear fuel cycle-related activities like
reprocessing and enrichment.19 Instead, the Nuclear Proliferation Assessment
17 “Ahmadinejad Thanks India for Positive Stands on Iran in IAEA,” IRNA, Sept. 23, 2005.
18 September 26, 2005 press briefing, op. cit.
19 The United States does have a Section 123 agreement with EURATOM, of which France
(continued...)

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CRS-7
Statement on China, submitted to the Congress on July 19, 2005 pursuant to Section
123 a. of the Atomic Energy Act, noted that the transfer of sensitive nuclear
technology, facilities, or major critical components would require an amendment to
the agreement because additional control mechanisms would need to be obtained.20
Other Priorities. In his February 11, 2004, speech, President Bush outlined
several counterproliferation priorities, including expanding the Proliferation Security
Initiative; strengthening laws and international controls against WMD and missile
proliferation (ultimately resulting in adoption of UNSCR 1540); expanding the G8
Global Partnership; and strengthening IAEA safeguards through universal adoption
of the Additional Protocol. Ambassador Joseph noted on September 8, that the
United States had discussed Indian endorsement of PSI, and that India’s adherence
to NSG and MTCR guidelines would help ensure that WMD and missile-related
technologies would not be transferred. India’s adoption of the Additional Protocol
would contribute to its universalization.
Impact on the Nonproliferation Regime
India has long stood outside the nonproliferation regime and this initiative raises
questions about whether a partial solution can be beneficial or detrimental. Some
considerations include cohesion within the Nuclear Suppliers’ Group, effect on non-
nuclear weapon member states of the NPT, and perspectives on whether the initiative
missed opportunities to strengthen the nuclear nonproliferation regime.
NSG Cohesion. A first order concern is the impact on cohesion within the
Nuclear Suppliers Group (NSG). As noted earlier, the NSG has followed the U.S.
lead on requiring full-scope safeguards as a condition of nuclear supply. During the
September 8, hearing, House International Relations Committee Chairman Henry
Hyde noted that “Many of us are strong supporters of the NSG and would not want
to see it weakened or destroyed.” Chairman Hyde asked whether the administration
could assure the Committee that

...no matter what else happens, that the administration will continue to abide by
NSG guidelines, and if you are unable to gain consensus within the NSG for the
amendments you need, you will not implement the new India policy in violation
of NSG guidelines.
Ambassador Joseph responded with an assurance that “we intend to take no action
that would undercut the effectiveness of the NSG,” and further, that the
19 (...continued)
and the UK are members.
20 “Nuclear Proliferation Assessment Statement, Pursuant to Section 123 a. of the Atomic
Energy Act of 1954, as Amended, With Respect to the Proposed Agreement for Cooperation
Between the United States of America and the People’s Republic of China Concerning
Peaceful Uses of Nuclear Energy,” as printed in House Document 99-86, July 24, 1985,
(Washington: GPO, 1985).

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CRS-8
Administration did not intend to change the consensus procedure or even change the
NSG full-scope safeguards condition of nuclear supply.21
Dissent within the NSG could be counterproductive to achieving other
objectives the United States is pursuing in nuclear nonproliferation, such as
restricting the fuel cycle, disarming North Korea, and restraining Iran, all of which
rely on the considerable support of friends and allies. Moreover, harmonizing export
controls has played a key role in Bush counter- and non-proliferation policies in the
last few years and is particularly important for interdiction efforts. U.S.-India
cooperation could prompt other suppliers, like China, to justify supplying other non-
nuclear-weapon states, like Pakistan. China, which joined the NSG in 2004,
reportedly has not yet shared its views on the nuclear cooperation agreement. Russia,
which only halted fuel supplies to the Indian Tarapur reactors in December 2004 at
the insistence of the NSG, could welcome the opportunity to resume fuel supplies to
Tarapur, but might also be emboldened to push ahead with supplying more reactors
to Iran, regardless of U.S. views.
Effect on NPT Member States. India has complained for years that it has
been excluded from regular nuclear commerce because of its status outside the NPT.
Some observers believe this is a good thing and shows that the policy works. Others
believe that a new paradigm is needed for India because it will not join the NPT as
a non-nuclear weapon state.
The NPT is basically a two-way bargain. Non-nuclear-weapon states under the
NPT give up the option of developing nuclear weapons in exchange for the promise
of peaceful nuclear cooperation. Nuclear weapon states under the NPT were not
required immediately to disarm, but to commit to eventual disarmament. India, as
a state outside the NPT, is bound by neither of these commitments. Some observers
may see the offer of nuclear cooperation previously reserved for states under the NPT
with full-scope safeguards not only as undermining the agreements made by non-
nuclear weapon states, but also the commitments made by nuclear weapon states to
eventually disarm. In this view, India’s continued unilateral testing moratorium is
insufficient, compared with signing the Comprehensive Test Ban Treaty and its
support for FMCT negotiations is insufficient compared with capping its nuclear
weapons fissile material production now, as four of the five nuclear weapon states
have formally done.
The proliferation shocks of the 1990s, when the Iraqi and North Korean
clandestine nuclear weapons programs surfaced, led to the strengthening of the NPT
and export control regimes. At the 1995 NPT Review and Extension Conference,
NPT parties affirmed the NSG’s decision to require full-scope safeguards for nuclear
exports, supporting the principle that non-NPT parties should not be eligible for the
same kinds of assistance as NPT parties in good standing. At the 2000 conference,
NPT parties again supported that principle. According to one U.S. participant in that
conference, “Reinforcement of this guideline is important given some who have
questioned whether this principle should be relaxed for India and Pakistan, which
21 HIRC US-India hearing.

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CRS-9
have not accepted full-scope IAEA safeguards. The answer from NPT parties is
clearly no.”22
In the last ten years, virtually all states agreed to strengthen the nonproliferation
regime, sacrificing some sovereignty by opening up to additional, intrusive
inspections under the Additional Protocol. In the wake of revelations in 2004 about
Pakistani scientist A.Q. Khan’s nuclear black market sales, non-nuclear weapon
states under the NPT are also being asked to consider further restrictions on their
sovereignty by voluntarily restricting their access to sensitive nuclear technologies
like uranium enrichment and reprocessing. If some states view the U.S.-Indian
nuclear cooperation agreement as a breach of faith in the basic bargain of the NPT,
they might be less inclined to accept additional sacrifices, to the detriment of the
nonproliferation regime.
Missed Opportunities. Ambassador Joseph described the nuclear initiative
as representing “a substantial net gain for nonproliferation. It is a win for our
strategic relationship, a win for energy security, and a win for nonproliferation.”
Ambassador Joseph said he was “convinced that the nonproliferation regime will
emerge stronger as a result.”23
However, some observers have suggested the United States asked for too little.
For example, Fred McGoldrick, Harold Bengelsdorf and Lawrence Scheinman,
argued in the October 2005 issue of Arms Control Today that
It is open to serious doubt whether the proposed Indian concessions were
significant enough to justify the accommodations promised by the United States
and whether the steps the United States and India agreed to take in the civil
nuclear area will, on balance, be supportive of global nonproliferation efforts...If
the Bush Administration is able to implement the joint declaration without
significant modification, it will have given the Indians a great deal —
acknowledgment as a de facto nuclear weapon state and access to the
international nuclear energy market — in return for largely symbolic concessions
in the nonproliferation area.24
The Indian embassy itself, not surprisingly, has downplayed the depth and
breadth of its nonproliferation commitments, describing all but its safeguards
commitments under the July 18 statement in the following way:
A number of existing policies were also reiterated by India, among them a
unilateral moratorium on nuclear testing, working towards conclusion of a
multilateral Fissile Material Cut-off Treaty, non-transfer of enrichment and
reprocessing technologies, securing nuclear materials and technology through
22 Ambassador Norman Wulf, “Observations from the 2000 NPT Review Conference,” Arms
Control Today, November 2000.
23 Ibid.
24 Fred McGoldrick, Harold Bengelsdorf, Lawrence Scheinman, “The U.S.-India Nuclear
Deal: Taking Stock,” Arms Control Today, October 2005, pp. 6-12. See
[http://www.armscontrol.org/act/2005_10/OCT-Cover.asp].

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CRS-10
export control, and harmonisation with MTCR and NSG guidelines.[emphasis
added]25
India has had a self-imposed nuclear test moratorium for years, although
supporters of this agreement note that this agreement would bind India bilaterally to
honoring that pledge. If the NSG used a similar criteria in approving exports, it could
further strengthen that pledge. India has supported FMCT negotiations for years,
despite continuing to produce fissile material for use in nuclear weapons. Since the
pace of FMCT negotiations is glacial, support for negotiations could allow India to
continue producing fissile material indefinitely. At least one supporter of the
agreement, Ashley Tellis of the Carnegie Endowment for International Peace, has
argued that India should not cap its nuclear weapons program, and that outcomes
restraining the ability to build up its nuclear stockpile “threaten to place New Delhi
at a disadvantage vis-a-vis Beijing, a situation that could not only undermine Indian
security but also U.S. interests in Asia.26
The most far-reaching of the commitments is to separate civilian and military
facilities, declare civilian facilities, and place them under safeguards. Administration
officials have pointed to this aspect of the agreement as a nonproliferation “plus.”
Yet, India’s voluntary safeguards commitments essentially place India squarely in the
company of nuclear weapon states. Allowing India broad latitude in determining
which of its facilities to put under international safeguards is a privilege accorded
currently only to nuclear weapon states under the NPT. Although the United States
“in no way recognizes India as an NPT nuclear weapons state,” excluding military
facilities from inspections is a tacit recognition of their legitimacy. Indian statements
to the press indicate that they see their safeguards commitment very much as the kind
that nuclear weapon states undertake. The Indian embassy backgrounder on the
agreement stated that “Nuclear weapon states, including the US, have the right to
shift facilities from civilian category to military and there is no reason why this
should not apply to India.”27 Such an approach would not meet U.S. legal standards
for agreements for cooperation.28
The IAEA has supported placing Indian facilities under safeguards, and it is
clear that encouraging a culture of transparency and accounting is a positive
development. Dr. ElBaradei said that he has “always advocated concrete and
practical steps towards the universal application of IAEA safeguards.”29 Ambassador
25 “Backgrounder on India-U.S. Civilian Nuclear Energy Cooperation,” Indian Embassy,
July 29, 2005. See [http://www.indianembassy.org/press_release/2005/July/32.htm].
26 Ashley J. Tellis, India As A New Global Power: An Action Agenda for the United States,
Carnegie Endowment for International Peace, 2005, p. 25.
27 ibid.
28 See McGoldrick, Bengelsdorf, and Scheinman, op cit., for a description of the requirement
for safeguards in perpetuity.
29 “IAEA Director General Reacts to U.S.-India Cooperation Agreement,” See
[http://www.iaea.org/NewsCenter/PressReleases/2005/prn200504.html]. Critics of the
IAEA point out that it is an organization that measures its success in part by how much
(continued...)

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CRS-11
Burns told reporters on July 19, 2005, that “this agreement can be verified and will
be verified,” and presumably that refers to verifying the U.S. obligation under Article
I of the NPT “not in any way to assist, encourage, or induce any non-nuclear weapon
state to manufacture or otherwise acquire nuclear weapons.” From a broader
nonproliferation perspective, however, there is little value in inspecting facilities in
a nuclear weapons state. In particular, an Additional Protocol on top of largely
symbolic safeguards seems to add few nonproliferation benefits.
The Administration has asserted that India has an “exceptional” record of
nonproliferation and despite a few isolated sanctions, most of the evidence supports
the view that India has exercised restraint in export controls.30 As such, however,
India’s promise to refrain from transferring enrichment and reprocessing technologies
to states that do not have them, as well as its promise to adhere to NSG guidelines,
may be little more than a formality.
Many observers have noted that there are no measures in this global partnership
to restrain India’s nuclear weapons program. Some have suggested that the United
States should have asked India to halt fissile material production for weapons.
Ambassador Bob Joseph stated that the United States remains “committed to
achieving Indian curtailment of fissile material production, and we have strongly
encouraged a move in this direction. We stand willing to explore options that might
serve this objective, but we will not insist on it for purposes of this civil nuclear
initiative.”31 Indian officials, on the other hand, have taken pains to point out that
“There is no commitment at all to cease production of fissile material ahead of the
conclusion of such a multilateral [FMCT] treaty.”32 Other observers have noted that
although India committed to a test ban, it did not commit to signing the
Comprehensive Test Ban Treaty. Still other observers have suggested that if India
insists on being treated as a nuclear weapon state, it should undertake responsibilities
similar to those of the other nuclear weapon states, for example, placing fissile
material excess to defense needs under safeguards. Many believe that real limits on
India’s nuclear weapons program would constitute a “win” for nonproliferation.
The Way Ahead: Challenges and Uncertainties
Ambassador Joseph highlighted three challenges and uncertainties in his
September 8 testimony: how India proceeds on separating its civil and military
29 (...continued)
nuclear material and how many facilities are under inspection.
30 In Sept. 2004, the State Department published a notice in the Federal Register imposing
sanctions pursuant to the Iran Nonproliferation Act of 2000. Two Indian scientists were
named in the notice — Dr. Prasad and C. Surendar. The State Department has not revealed
what technology or equipment was transferred, but both scientists have worked for the
Nuclear Power Corporation of India, Ltd., a government-owned entity that runs India’s
nuclear power plants.
31 HIRC US-India hearing.
32 “Backgrounder on India-U.S. Nuclear Energy Cooperation,” July 29, 2005.

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CRS-12
facilities and placing the civilian ones under international inspections, how NSG
members will react, and the issue of “other states.” By this last issue, Joseph is
referring to whether or not Pakistan and Israel would also ask for such cooperation,
which Joseph says the United States will not seek.33
A particular challenge for the United States is to ensure that the new steps —
separating civilian and military facilities, placing civilian facilities under IAEA
safeguards, and applying an additional protocol — are implemented in a way that
satisfies U.S. legal requirements. The United States, under Article I of the NPT must
ensure that its assistance does not “in any way assist, encourage or induce any non-
nuclear-weapon state to manufacture nuclear weapons.” A significant question is
how India, in the absence of full-scope safeguards, can provide sufficient confidence
that U.S. peaceful nuclear technology will not be diverted to nuclear weapons
purposes, as it was in 1974.34 Some observers believe that IAEA safeguards provide
little assurance of the non-diversion of fissile material, particularly in a state that has
an active nuclear weapons program that is not safeguarded. Others believe that the
application of an Additional Protocol helps strengthen the IAEA’s capabilities to
detect diversion. India has agreed to sign an additional protocol for its civilian
facilities. However, given India’s unsafeguarded nuclear weapons program, this step
is also unlikely to make a difference in providing additional assurances of the non-
diversion of nuclear material.
The United States also has a legal obligation under Section 123 a. (1) of the
Atomic Energy Act to maintain safeguards with respect to all U.S. materials and
equipment transferred pursuant to the agreement as long as that material or
equipment remains under the jurisdiction of the cooperating party, irrespective of
whether the agreement is terminated or suspended [emphasis added]. The language
of the joint statement, however, refers to India “voluntarily placing its civilian
facilities under IAEA safeguards.” There are currently three kinds of safeguards
agreements in force: INFCIRC/66, INFCIRC/153, and voluntary safeguards
agreements made by the five nuclear weapon states.35 Only INFCIRC/66 agreements,
which predate the NPT and which India currently has on four of its nuclear reactors,
33 Statement of Robert G. Joseph, Under Secretary of State for Arms Control and
International Security, Sept. 8, 2005, House Committee on International Relations, US-India
Hearing. Amb. Joseph describes India as an exceptional case and civil nuclear cooperation
as a mechanism to further deepen its commitment to international nonproliferation. Joseph
then suggests that neither Pakistan nor Israel — two other nuclear weapon states outside the
NPT — has a civil nuclear energy program that approximates India’s and that the United
States will not seek such cooperation with those states.
34 Although India maintained a certain ambiguity by calling its 1974 test a “peaceful nuclear
explosion,” the 1998 tests leave little doubt that the experience gained was put to use in a
nuclear weapons program. Plutonium produced in the CIRUS reactor, which the United
States supplied with heavy water, was used in the 1974 test. See Victor Gilinsky and Paul
Leventhal, “India Cheated,” Washington Post, June 15, 1998.
35 INFCIRC, an abbreviation of “Information Circular,” is a designation the IAEA uses to
record its agreements with states and organizations. INFCIRC/66 and /153 are model
agreements; the actual agreements with states will bear different numbers. INFCIRC/66
agreements predate the NPT and were used in bilateral safeguards arrangements, whereas
INFCIRC/153 agreements are “full-scope safeguards” under the NPT.

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CRS-13
have indefinite application. INFCIRC/153 agreements apply to nuclear material,
which means that if a facility is emptied of nuclear material, it would not have to be
inspected, and voluntary safeguards agreements make facilities “eligible” for
safeguards, but do not require the IAEA to inspect them. It is not clear which kind
of agreement India will seek and which one will be acceptable to the IAEA.
Ultimately, the United States will have little influence over the outcome of that
negotiation process, since safeguards agreements are negotiated between the state and
the IAEA.36 India’s broad latitude in separating its civilian facilities from military
facilities and voluntarily placing them under safeguards will have an effect on how
observers perceive the “verifiability” of the agreement. Congress could, however,
predicate its approval of an agreement for cooperation on adequate implementation
of safeguards on India’s civil nuclear program, as described below.
Negotiating with India
The July 18, 2005, joint statement by President Bush and Prime Minister Singh
noted that the two countries would establish working groups to hammer out details
of cooperation. As Ambassador Burns has noted, transparency on both sides will be
important in achieving quick progress. On September 16, it was announced that
Foreign Secretary Shyam Saran would head the Indian working group, and
Ambassador Burns would head the U.S. working group. It is envisioned that
significant work will be completed by the time President Bush travels to India
sometime in 2006. Although a nuclear cooperation agreement reportedly already has
been drafted, it is not clear whether Congress is expected to approve an agreement
before the details of safeguards on Indian nuclear facilities are clear. In the case of
other states, safeguards negotiations have taken years.
NSG Consultations
U.S. officials have consulted both informally and formally with NSG members
thus far.37 Initial responses from the United Kingdom, Russia and France have all
been positive. In mid-September, France issued a joint statement with India that it
would work with NSG partners to enable nuclear cooperation with India to go
forward.38 Other responses have been mixed, especially from Sweden and Canada.
Some “NPT purists,” including Ireland, Japan, and the Netherlands, reportedly have
raised questions. Canada, which provided the CIRUS reactor to India, as well as
blueprints for CANDU reactors (that India subsequently used to build indigenous
reactors that could make plutonium for its weapons program), reportedly told U.S.
officials that it welcomed U.S. steps to addressing what has been a thorny issue in the
NPT — nuclear weapon states outside the regime — but had hoped the United States
36 Under Secretary of State for Political Affairs Nicholas Burns, “Briefing on the Signing
of the Global Partnership Agreement Between the United States and India,” July 19, 2005.
See [http://www.state.gov/p/us/rm/2005/49831.htm].
37 “NSG Begins Mulling Response To U.S.-India Cooperation Deal,” Nuclear Fuel,
September 26, 2005.
38 Sept. 12, 2005, Joint Statement by President Chirac and Prime Minister Singh, Paris.

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CRS-14
would have placed more conditions on the agreement. In particular, the deal would
have been more positive if the United States had obtained an Indian commitment to
freeze production of fissile material for nuclear weapons.39
In October, the NSG held a Consultative Group meeting, in which member
states discussed the issue of nuclear cooperation with India. U.S. officials (Assistant
Secretaries of State Rademaker and Rocca) did not present a strategy for creating an
exception, but presented the issue. NSG members are likely to want to see exactly
what Indian safeguards commitments are before proceeding further. Reportedly,
some NSG members may want to see restrictions on cooperation, such as no
enrichment or reprocessing cooperation, no heavy water cooperation, and no exports
of highly enriched uranium or plutonium. Brazil will chair the next NSG plenary
meeting in May 2006.
Although U.S. officials did not present a plan to the NSG, Ambassador Joseph
told members of the HIRC on September 8 that he envisions adopting an exception
or set of criteria that would allow full cooperation with India without abandoning
NSG consensus rules or the full-scope safeguards condition of supply.40 One
approach could be to adopt the commitments India made on July 18 as the criteria for
an exception. In short, exports to a non-nuclear weapon state without full scope
safeguards could be allowed if that state: separated military and civilian facilities,
declared and placed civilian facilities under IAEA safeguards, adopted an additional
protocol, supported FMCT and a nuclear testing moratorium, refrained from
transferring enrichment and reprocessing technologies, implemented export controls,
and adhered to the MTCR and NSG guidelines. NSG members would have to agree
that those commitments represent significant enough nonproliferation gains to
warrant full nuclear cooperation.
An alternative to additional criteria would be simply to have all 45 member
states decide in the plenary to allow nuclear exports to India, based on its past export
control history and its future commitments. While this has the benefit of not seeking
changes to NSG policies or procedures, it still must be compelling enough to win the
support of all other member states. Some NSG members, for example, Sweden,
Denmark, Austria, and Ireland, are expected to be critical of the U.S. policy on the
basis of nonproliferation principles.41
Consulting with Congress
Significant U.S.-Indian nuclear cooperation cannot go forward without action
by Congress. India does not meet existing nonproliferation criteria under current
U.S. law (Atomic Energy Act; P.L. 95-242; 42 U.S.C. § 2153 et seq.). Three kinds
of legislative approaches are possible, as outlined below. Administration officials
39 “NSG Begins Mulling Response To U.S.-India Cooperation Deal,”Nuclear Fuel,
September 26, 2005.
40 HIRC US-India hearing.
41 Mark Hibbs, “U.S. to face some opposition if it seeks consensus NSG rule on India,”
Nucleonics Week, Sept. 29, 2005.

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CRS-15
told House International Relations Committee members on September 8 that they had
not yet decided on a legislative approach.
There are three basic options for the Administration to follow. These are
! Comply with Existing Law (Atomic Energy Act);
! Amend provisions of the Atomic Energy Act to allow for
cooperation with India; or
! Introduce stand-alone legislation to create an exception for India
(i.e., nuclear cooperation notwithstanding any other provision of
law).
Complying with Existing Law. All significant nuclear cooperation requires
an agreement for cooperation. The Nuclear Non-Proliferation Act of 1978 (NNPA)
amended the Atomic Energy Act of 1954 (AEA),42 to include a requirement for full-
scope safeguards for significant nuclear exports non-nuclear weapon states.43
Agreements for Cooperation. Section 123 of the AEA (42 U.S.C. 2153)
requires an agreement for cooperation as a prerequisite for significant nuclear
cooperation with any nation; the United States has about 27 agreements for
cooperation in place now, and had an agreement with India from 1963 to 1993.
There are nine criteria that an agreement must meet unless the President exempts the
agreement.44 The most important of these with respect to India is the full-scope
safeguards requirement for non-nuclear weapon states (AEA, Sec. 123(a)(2).45 The
NNPA stipulates other important requirements: 1) guaranteeing that no transferred
items and no special nuclear material produced from transferred items will be used
for any nuclear explosive device; 2) guaranteeing physical security; and 3)
guaranteeing that no reprocessing or alteration in form or content will take place
without prior U.S. consent. The President may exempt an agreement for cooperation
from any of the requirements if he determines that the requirement would be
“seriously prejudicial to the achievement of U.S. non-proliferation objectives or
otherwise jeopardize the common defense and security.” An exempted agreement
42 P.L. 83-703, 42 U.S.C. §§ 2153 et seq.
43 Nuclear cooperation includes the distribution of special nuclear material, source material,
and byproduct material, to licensing for commercial, medical, and industrial purposes. These
terms, “special nuclear material,” “source material,”and “byproduct material,” as well as
other terms used in the statute, are defined in 42 U.S.C. § 2014.
44 These are listed in Section 123.a., (1) through (9), 42 U.S.C. § 2151. Briefly, they are
guarantees that 1. safeguards continue in perpetuity; 2. full-scope safeguards are applied in
non-nuclear weapon states; 3. there is no transfer; 4. U.S. has right of return; 5. there is no
transfer of material or classified data; 6. physical security is maintained; 7. no enrichment
or reprocessing without prior approval; 8. storage is approved by U.S. for plutonium and
HEU; 9. anything produced through cooperation is subject to all the above requirements.
45 42 U.S.C. 2153(a)(2). Sec. 4 (b) of the NNPA specifies that all other terms used in the
NNPA not defined in Sec. 4 “shall have the meanings ascribed to them by the 1954 Act, the
Energy Reorganization Act of 1974 and the Treaty [NPT].” S.Rept. 95-467 further clarified
that under the NPT, the five nuclear weapon states are the U.S., U.K., China, the Soviet
Union, and France. U.S. Code Congressional and Administration News, 95th Cong., 2nd
Sess., 1978, vol. 3, p. 329.

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CRS-16
would not become effective “unless the Congress adopts, and there is enacted, a joint
resolution stating that the Congress does favor such agreement.”46 In other words,
both chambers of Congress must approve the agreement if it does not contain all of
the Section 123 requirements.
Export Licensing. Sections 126, 127, and 128 of the AEA (42 U.S.C. 2155,
2156, 2157) cover export licensing procedures. Under Section 126, the NRC would
have to license significant nuclear exports in accordance with Sections 127 and 128
of the AEA. Section 127 criteria for exports mirror those in Section 123 for the
agreement for cooperation. Section 128 requires the recipient non-nuclear-weapon
state to have full-scope safeguards. In addition, 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. Additional
considerations, if warranted, include 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. The President may still authorize an export if he
“determines 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 the license or
authorization, along with a detailed assessment and other documentation, to Congress
for 60 days of continuous session. If Congress disapproves the export, no further
exports can be made during that Congress. If Congress does not disapprove the
export, it would review one license for export each year. If the export is made
pursuant to an exempted agreement for cooperation, the Congressional review is
delayed for one year.

Termination of Cooperation. Section 129 of the Atomic Energy Act (42
U.S.C. 2158) requires ending exports of nuclear materials and equipment or sensitive
nuclear technology to any non-nuclear-weapon state that, after March 10, 1978,
detonates a nuclear explosive device; terminates, abrogates or materially violates
IAEA safeguards; or engages 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.” There is a provision
for a presidential waiver “if the President determines that cessation of such exports
would be seriously prejudicial to the achievement of United States nonproliferation
objectives or otherwise jeopardize the common defense and security.” The President
must submit his determination to Congress, which is then referred to the House
International Relations Committee and the Senate Foreign Relations Committee for
60 days of continuous session. The determination would not become effective if the
Congress opposes it.
46 This new requirement was added by the Export Administration Amendment Act of 1985,
P.L. 99-64, Sec. 301 (b) (2), 99 Stat. 120.

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CRS-17
Reports to Congress. The NNPA (P.L. 95-242) also required the President
to report annually to the Congress on federal efforts to prevent proliferation.47 These
reports have become known as the “Section 601” reports.48 Among other things, they
describe progress in U.S. efforts to encourage non-nuclear-weapon states not party
to the NPT to adhere to the treaty or full-scope safeguards, and to foreswear the
development of nuclear weapons, as well as progress in discouraging nuclear exports
to non-nuclear-weapon states that have not taken such steps. The reports must also
include a determination on which non-nuclear-weapon state recipients of U.S.
nuclear exports have detonated a nuclear device, refused to accept full-scope IAEA
safeguards on all peaceful nuclear activities, refused to give specific assurances that
they will not manufacture or otherwise acquire any nuclear explosive device, or
engaged in nuclear weapons-related work.49 In short, the President must report to
Congress if a recipient state has engaged in activities that would require a termination
of exports under Section 129 of the AEA, as described above. The Section 601
reports must also describe implementation of nuclear and nuclear-related dual-use
export controls. The most recent Section 601 report to Congress for the year ending
2004 notes that none of the non-nuclear-weapon states that have U.S. agreements for
cooperation in effect had engaged in any of the prohibited activities of Section 129
of the AEA. India is not described in that section since there is no agreement for
cooperation in place now, but if the agreement is approved, the President would need
to report specifically on India’s nuclear weapons program.
The Process. The process of implementing an agreement under existing law
would be, roughly, as follows:
! The President submits an exempted agreement for cooperation to
Congress.
! The exempted agreement lies before Congress for 60 days of
continuous session (once a Nuclear Proliferation Assessment
Statement is received).50
! An exempted agreement becomes effective only if Congress enacts
a joint resolution of approval.
! If the exempted agreement is approved, no congressional review of
exports is required until 12 months after the first export has been
licensed. Thereafter, an annual review is required per Section 128.
! President would thereafter have to waive Section 128 provisions.
! President would have to waive Section 129 provisions which call for
cessation of exports.
Amending the Atomic Energy Act. The Administration might propose to
the Congress to amend certain sections of the Atomic Energy Act. In Section 123,
a potential provision to amend could be the full-scope safeguards requirement
47 22 U.S.C. 3281 et seq.
48 “Report to Congress Pursuant to Section 601 of the Nuclear Non-Proliferation Act of
1978, As Amended by the Nuclear Proliferation Prevention Act of 1994 for the Year Ending
December 31, 2004.”
49 22 U.S.C. § 3281(a)(3).
50 Specific procedures are found in AEA, P.L. 95-242, Sections 123 and 130.

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CRS-18
(Section 123 a. 2.). Taking out the full-scope safeguards requirement would open up
the possibility of U.S. nuclear cooperation with states such as Pakistan and Israel,
however. While some might argue that the costs of lowering the threshold for U.S.
nuclear cooperation globally outweigh the benefits, others might argue that there are
only three states outside the NPT now, and therefore, lowering the threshold is not
that significant.
Another option would be simply to delete Section 128 of the AEA, which added
the full-scope safeguards requirement for exports, particularly since other criteria for
U.S. exports are already contained in Section 127. In addition, Section 129 could be
amended to either change the effective date of the restriction so that nuclear testing
after 2005 (rather than 1978) would trigger a cutoff (Section 129 (1) (A)), but this is
unlikely to be sufficient, since India will continue its nuclear weapons activities that
would trigger cessation of exports under Section 129 (1) (D). Or, Sections 128 and
129 could be eliminated.
Stand-Alone Legislation. One precedent for waiving nonproliferation
sanctions is the so-called Brownback Amendment of 1999, which lifted nuclear
testing sanctions for India and Pakistan. Senator Brownback offered his amendment
to the Defense Appropriations Act of FY2000, which stated simply that sanctions
contained in the Arms Export Control Act and the Export-Import Bank Act would
not apply to India and Pakistan for any reason, effective for five years. The President
could renew the suspension for an additional five years if he certified to Congress
that it was in the national interest of the United States to do so. The final version, in
PL 106-79, did not contain a time limit, but did contain a termination of the waiver
in the event that either country tested another nuclear explosive device. A new bill
to create an exception for India along these lines may be the most appealing option
to the Administration.
Potential Issues for Congress
As the Administration consults with Congress over implementation of the U.S.-
Indian nuclear cooperation agreement, Congress may want to consider several
questions:
! What level of intrusiveness, either in the process of separating
India’s civilian and military nuclear activities, or in an inspections
regime, is sufficient to meet U.S. NPT obligations not to aid, assist,
or encourage efforts to develop nuclear weapons?
! Should India be required to completely separate its military facilities
(including reactors that might now generate electricity) from the
civilian sector?
! How should an additional protocol be implemented in India’s case
to maximize the IAEA’s ability to detect diversion from the civilian
sector to the military sector? What is the added value of the
additional protocol, given the certainty that nuclear weapon facilities
cannot be inspected?
! How well do India’s export controls function?

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CRS-19
! What are India’s plans for its nuclear weapons program and what is
the possibility that U.S. assistance could benefit that weapons
program?
! If India is prepared to take on the responsibilities undertaken by
other nuclear weapon states, is it prepared to stop producing fissile
material for weapons? Is it prepared to declare some nuclear
material as excess to its defense needs and place that material under
IAEA safeguards? Is it prepared to sign the Comprehensive Test
Ban Treaty?
! What impact will nuclear safeguards on civilian facilities have on
India’s transparency efforts with Pakistan?
! What would be the impact of NSG agreement to an exception for
India before the U.S. Congress approves an agreement for
cooperation?
! Are other countries’ nuclear industries more likely to benefit from
opening up nuclear cooperation with Indian than U.S. industries?
On a broader level, members of Congress may be interested in continued
progress between India and Pakistan with their dialogue on nuclear confidence-
building. Ultimately, some of these issues might be addressed in a Nuclear
Proliferation Assessment Statement, which the Administration is required to submit
to the Congress along with the Section 123 agreement for cooperation, assuming the
Administration complies with existing law.

If Congress chooses, it may attach conditions to approval of any agreement for
cooperation. One precedent is the 1985 U.S.-China agreement for cooperation. As
noted earlier, the US-China agreement is the first U.S. peaceful nuclear cooperation
agreement with another nuclear weapon state. The agreement contained certain
restrictions on cooperation, but more importantly, Congress required the President
to certify that a) reciprocal arrangements would ensure that nuclear materials,
facilities or components would be used solely for peaceful purposes; b) China was
not violating paragraph 2 of Section 129 (particularly with respect to assisting non-
nuclear weapon states in a nuclear weapons program); and c) that U.S. approval for
subsequent potential Chinese requests to enrich, reprocess or alter in any form
material provided under the agreement would not be automatic.51
When the US-China peaceful nuclear cooperation agreement was submitted to
Congress in July 1985, the Arms Control and Disarmament Agency had concluded
that China had met all the statutory requirements. On Section 129 of the Atomic
Energy Act, ACDA concluded that “Based on the available information, it is believed
that a finding under Section 129 that would preclude nuclear exports to China under
the proposed Agreement is not warranted.”52 Nonetheless, a presidential certification
on the three matters was not made until January 12, 1998. Reciprocal arrangements
51 P.L. 99-183.
52 Nuclear Proliferation Assessment Statement, page II-13 (reprinted in House Document 99-
86, p. 41.)

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CRS-20
to ensure the peaceful uses of material, facilities, and components transferred were
submitted to Congress for review and published in the Federal Register.
In the case of a U.S.-India nuclear cooperation agreement, it may be attractive
to require similar certifications, particularly on the peaceful uses of U.S. technology
and material. Other potential prerequisites for implementing an agreement could
include completion of India’s safeguards arrangements with the International Atomic
Energy Agency, executive branch certification of adequate transparency in the
separation of India’s civilian and military nuclear facilities, prior agreement by the
Nuclear Suppliers Group for creating an exception for India, or substantive progress
toward negotiating a fissile material production cutoff treaty.

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