Order Code RS22937
August 12, 2008
Nuclear Cooperation with Other Countries:
A Primer
Paul K. Kerr and Mary Beth Nikitin
Analysts in Nonproliferation
Foreign Affairs, Defense, and Trade Division
Summary
In order for the United States to engage in civilian nuclear cooperation with other
states, it must conclude a framework agreement that meets specific requirements under
section 123 of the Atomic Energy Act (AEA). The AEA also provides for exemptions
to these requirements, export control licensing procedures, and criteria for terminating
cooperation. Congressional review is required for section 123 agreements; the AEA
establishes special “fast track” parliamentary procedures by which Congress may act on
a proposed agreement.
What Is a “Section 123” Agreement?
Under existing law (Atomic Energy Act [AEA] of 1954; P.L. 95-242; 42 U.S.C.
§2153 et seq.)1 all significant U.S. nuclear cooperation with other countries requires a
peaceful nuclear cooperation agreement. Significant nuclear cooperation includes the
transfer of U.S.-origin special nuclear material2 subject to licensing for commercial,
medical, and industrial purposes. These agreements are “congressional-executive
agreements” and require congressional approval. They are “framework” agreements —
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 full-scope
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.
2 The term “special nuclear material,” as well as other terms used in the statute, is defined in 42
U.S.C. §2014. “Special nuclear material” means (1) plutonium, uranium enriched in the isotopes
233 or 235, and any other material that is determined 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.

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they do not guarantee that cooperation will take place or that nuclear material will be
transferred, but rather set the terms of reference and authorize cooperation. 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
a series of 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 an unclassified
Nuclear Non-Proliferation Assessment Statement (NPAS), which the President is to
submit to the committees of referral along with the agreement. 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 how the agreement
meets 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. It also contains provisions for the
President to exempt an agreement from any of several criteria described
in that section and includes details on the kinds of 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 how Congress approves cooperation agreements
that are limited in scope (e.g., do not transfer nuclear material or cover
reactors larger than 5 MWe). This report does not discuss such
agreements.
! Section 123d. specifies how Congress approves 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 must
meet unless the President determines an exemption is necessary. These include
guarantees that
! safeguards on nuclear material and equipment transferred continue in
perpetuity;
! full-scope International Atomic Energy Agency (IAEA) safeguards are
applied in non-nuclear weapon states;
! nothing transferred is used for any nuclear explosive device or for any
other military purpose; the United States has the right of return (except
in the case of cooperation agreements with nuclear weapon states) of

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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;
! there is no retransfer of material or classified data without U.S. consent;
! physical security on nuclear material is maintained;
! 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;
! storage for transferred plutonium and highly enriched uranium is
approved in advance by the United States; and
! any material or facility produced or constructed through use of special
nuclear technology transferred under the cooperation agreement is subject
to all of the above requirements.
Exempted vs. non-exempted agreements. The President may exempt an
agreement for cooperation from any of the requirements in Section 123a. 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.”
The AEA provides different requirements, conditions, and procedures for exempt and
non-exempt agreements.3 To date, all of the section 123 agreements in force are non-
exempt agreements.4 Prior to the adoption of P.L. 109-401, the Henry J. Hyde United
States-India Peaceful Atomic Energy Cooperation Act of 2006, the President would have
needed to exempt the nuclear cooperation agreement with India (signed in July 2007)
from some requirements of Section 123 a. P.L. 109-401, however, exempted nuclear
cooperation with India from some of the AEA’s requirements.5
Congressional Review
Under the AEA, Congress has the opportunity to review a 123 agreement for two
time periods totaling 90 days of continuous session.6 The President must submit the text
of the proposed nuclear cooperation agreement, along with required supporting documents
(including the unclassified NPAS) to the House Foreign Affairs Committee and the
3 Nuclear cooperation agreements with nuclear weapon states recognized by the NPT are
provided for in the AEA, and are therefore non-exempt 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.
4 A list of those agreements may be found at [http://nnsa.energy.gov/nuclear_nonproliferation/
123_agreements_peaceful_cooperation.htm]. A 123 agreement with Russia is now being
considered by Congress. See CRS Report RS22892, U.S.-Russian Civilian Nuclear Cooperation
Agreement: Issues for Congress, by Mary Beth Nikitin.
5 See CRS Report RL33016, U.S. Nuclear Cooperation with India: Issues for Congress, by Paul
K. Kerr.
6 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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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 his approval of the agreement and
determination that it will not damage the national security interests of the United States.
This action begins the second period, of 60 days of continuous session. In practice, the
President has submitted the agreement to Congress, along with the unclassified NPAS,
its classified annex, and his approval and determination, at the beginning of the full 90-
day period. The 60-day period has been considered as following immediately upon the
expiration of the 30-day period.
If the President has not exempted the agreement from any requirements of section
123a., it becomes effective at the end of the 60-day period unless, during that time,
Congress adopts a joint resolution disapproving the agreement and the resolution becomes
law. If the agreement is an exempted agreement, Congress must adopt a joint resolution
of approval and it must become law by the end of the 60-day period or the agreement will
not enter into force.
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, it 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.
H.R. 6574, which was reported out of House Foreign Affairs Committee on July 23,
2008, would amend the congressional review procedures under section 123d. of the AEA
to require a joint resolution of approval for both exempt and non-exempt agreements
within the 60-day period before such agreements could go into effect.7
Export Licensing
The AEA sets out procedures for licensing exports to states with whom 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 Nuclear
Regulatory Commission (NRC) is required to meet criteria in sections 127 and 128 in
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 full-scope safeguards, but safeguards required under NPT Article
III.2).
7 For more information, see CRS Report RL34541, Nuclear Cooperation Agreement with Russia:
Statutory Procedures for Congressional Consideration, by Richard S. Beth.

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! 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.
! Section 128 requires that recipient non-nuclear-weapon states must have
full-scope 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 nuclear
Nonproliferation Treaty (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 his 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 go through
unless Congress were to adopt a concurrent resolution of disapproval.8
8 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.

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Section 128b.(2) contains a provision for the President to waive termination of
exports by notifying the Congress that the state has adopted full-scope 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.9
Section 129b.(3) allows the President to waive this provision.
Termination of Cooperation
Section 129a. of the AEA requires ending 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 U.S.; assisted, encouraged, or induced any non-nuclear weapon state
to obtain nuclear explosives or the materials and technologies needed to manufacture
them; or re-transferred 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 he 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 Committee on Foreign Affairs and the Senate Foreign Relations Committee for 60
days of continuous session. The determination becomes effective unless Congress adopts
a concurrent resolution opposing the determination.
9 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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