Nuclear Cooperation with Other Countries:
A Primer
Paul K. Kerr
Analyst in Nonproliferation
Mary Beth D. Nikitin
Specialist in Nonproliferation
October 16, 2014
Congressional Research Service
7-5700
www.crs.gov
RS22937
Nuclear Cooperation with Other Countries: A Primer
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 export control licensing procedures and
criteria for terminating cooperation. Congressional review is required for Section 123 agreements;
the AEA establishes special parliamentary procedures by which Congress may act on a proposed
agreement.
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Nuclear Cooperation with Other Countries: A Primer
Contents
What Is a “Section 123” Agreement? .............................................................................................. 1
Requirements Under the Atomic Energy Act ............................................................................ 2
Exempted vs. Non-exempted 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
The 113th Congress .......................................................................................................................... 8
H.R. 3766................................................................................................................................... 9
S.J.Res. 36 ................................................................................................................................. 9
Agreements Reviewed by the 113th Congress ........................................................................... 9
Vietnam ............................................................................................................................... 9
Taiwan ............................................................................................................................... 10
International Atomic Energy Agency (IAEA) ................................................................... 11
Republic of Korea ............................................................................................................. 11
Appendixes
Appendix. Key Dates for Bilateral Civilian Nuclear Cooperation (“Section 123”)
Agreements ................................................................................................................................. 13
Contacts
Author Contact Information........................................................................................................... 15
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Nuclear Cooperation with Other Countries: A Primer
What Is a “Section 123” Agreement?
Under existing law (Atomic Energy Act [AEA] of 1954, as amended; 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.2 Significant nuclear cooperation includes the transfer of U.S.-
origin special nuclear material3 subject to licensing for commercial, medical, and industrial
purposes. Such agreements, which are “congressional-executive agreements” requiring
congressional approval, 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 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
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.”
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 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.
A nuclear cooperation agreement is not required for transmission of nuclear-related information, except for restricted
data. The term “restricted data,” as well as other terms used in the statute, is defined in 42 U.S.C. §2014. “Restricted
data” 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” 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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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 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;
• 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;
• 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.
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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.4 To date, all of the Section 123 agreements in force are non-exempt agreements.5
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 from some requirements of Section 123a. However, P.L. 109-
401 exempted nuclear cooperation with India from some of the AEA’s requirements.6
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.7 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 his 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.
If the President has not exempted the agreement from any requirements of Section 123a., it 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. If the agreement is an
exempted agreement, Congress must adopt a joint resolution of approval and it must become law
4 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.
5 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.
6 See CRS Report RL33016, U.S. Nuclear Cooperation with India: Issues for Congress, by Paul K. Kerr. The
agreement entered into force in December 2008.
7 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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by the end of the 60-day period or the agreement may 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.
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 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 Article III.2 of the nuclear
Nonproliferation Treaty [NPT]).
• 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.
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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 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
Section 128b.(2) contains a provision for the President to waive termination of exports by
notifying 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.
Iran-Related Restrictions
The Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA) of 2010 (P.L.
111-195), which became law July 1, 2010, contains additional restrictions on licensing nuclear
exports to countries with entities that have been sanctioned for conducting certain types of
energy-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
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.
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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basis” to entities (which have not been sanctioned) in countries subject to the restrictions
described above.10
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 recipient 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
10 For details on these sanctions, see CRS Report RS20871, Iran Sanctions, by Kenneth Katzman.
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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
diverted material into a nuclear explosive device.”11 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.”12 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
11 These provisions also apply to facilities that, prior to March 18, 1978, did not have a subsequent arrangement for
reprocessing.
12 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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countries signed a subsequent arrangement 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
of disapproval within 30 days of continuous session; Congress did not adopt such a resolution.13
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 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 joint resolution opposing the determination.
The 113th Congress
In recent years, Congress has intensely debated the requirements of the Atomic Energy Act for
nuclear cooperation agreements, most notably following the approval of the 2008 U.S.-India
nuclear cooperation agreement. Congress has held several hearings to discuss whether stronger
nonproliferation standards and congressional oversight for nuclear cooperation agreements are
desirable. This issue continues to be a subject of attention in the 113th Congress.
13 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.
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H.R. 3766
In December 2013, Representatives Ileana Ros-Lehtinen and Brad Sherman introduced H.R.
3766. This bill would require a positive vote by Congress if a nuclear cooperation agreement did
not include an expanded list of nonproliferation criteria. New criteria would include a pledge not
to build enrichment or reprocessing on a country’s territory, similar to the provisions in the
nuclear cooperation agreement with the UAE. The bill would also require a joint resolution of
approval for subsequent arrangements under nuclear cooperation agreements. The bill would
prohibit any U.S. assistance, other than humanitarian aid, to a cooperating country that has
withdrawn from the NPT, and require that country to return material, equipment, and components
transferred under the agreement. Section 5 would require termination of nuclear exports to a
cooperating country that had been “determined to be a ‘country of proliferation concern’”
pursuant to the 2010 National Defense Authorization Act.14 Section 7 of the bill would prohibit
the President from issuing an export license pursuant to a nuclear cooperation agreement unless
the cooperating country had liability protection for United States nuclear suppliers “equivalent to
the liability protection specified under the Convention on Supplementary Compensation for
Nuclear Damage.”
S.J.Res. 36
S.J.Res. 36 was introduced by Senate Foreign Relations Committee Chairman Robert Menendez
on May 22, 2014. The bill would approve the U.S.-Vietnam agreement but also would limit the
duration of other Section 123 agreements to 30 years unless an extension is approved by
Congress (S.Rept. 113-221). That extension could be for a period no longer than 30 years and
would require presidential certification that the terms of the agreement were being met and
continued cooperation was in the national security of the United States. The bill also specifies
what nonproliferation assessments should be included in the Nuclear Proliferation Assessment
Statement that accompanies the text of the agreement when submitted to Congress.
Agreements Reviewed by the 113th Congress
Congress reviewed three agreements in 2014. The United States renewed its agreements with
Taiwan and the IAEA and transmitted them to Congress for review, and a new nuclear
cooperation agreement with Vietnam was transmitted to Congress for review.
Vietnam15
President Obama transmitted to the Senate Foreign Relations Committee and the House Foreign
Affairs Committee the U.S.-Vietnam Section 123 agreement on May 8, 2014.16 The agreement
14 That law defines a country of proliferation concern as “any country identified by the Director of Central Intelligence
as having engaged in the acquisition of dual-use and other technology useful for the development or production of
weapons of mass destruction (including nuclear weapons, chemical weapons, and biological weapons) or advanced
conventional munitions.”
15 For details, see CRS Report R43433, U.S.-Vietnam Nuclear Cooperation Agreement: Issues for Congress, by Mary
Beth D. Nikitin, Mark Holt, and Mark E. Manyin.
16 “Message to the Congress: Transmitting the Agreement for Cooperation between the US and Vietnam on the
Peaceful Uses of Nuclear Energy,” The White House, May 8, 2014. http://www.whitehouse.gov/the-press-office/2014/
(continued...)
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complies with all the requirements of the AEA and therefore is non-exempt. The Administration
submitted an unclassified NPAS and a classified addendum to the NPAS by the Director of
National Intelligence. The agreement may enter into force after the 90th day of continuous session
after its submittal to Congress (a period of 30 plus 60 days of review) unless a joint resolution
disapproving the agreement is enacted. The agreement would have a 30-year duration with
automatic renewal every five years thereafter if neither party objects. The agreement can be
terminated within six months after the 30 years have passed, at the five-year marks, or at any time
with a one-year written notice. As with other agreements, should the agreement be terminated, the
nonproliferation controls would continue on any material, equipment, and components transferred
under the agreement.
The agreement met all nine nonproliferation criteria. The preamble of the agreement includes a
political commitment that says Vietnam intends to rely on international markets for its nuclear
fuel supply, rather than acquiring sensitive nuclear technologies. At the same time, the United
States pledges to support international markets to ensure a reliable nuclear fuel supply for
Vietnam. Article 6 of the agreement specifically prohibits Vietnam from enriching or reprocessing
U.S.-obligated nuclear materials—for instance, materials that are transferred from the United
States—without specific future U.S. consent.
Senate Foreign Relations Committee Chairman Robert Menendez introduced a resolution that
would have approved this agreement (S.J.Res. 36) on May 22. This bill was passed by the Senate
on July 31, 2014. No equivalent bill was passed by the House. The 90-day period of
congressional review was completed on September 10, 2014, and the agreement entered into
force on October 3, 2014.
Taiwan
On January 7, 2014, President Obama transmitted to the Senate Foreign Relations Committee and
the House Foreign Affairs Committee the renewed U.S.-Taiwan Section 123 agreement.17 S.J.Res.
31 and H.J.Res. 109 would have both approved the renewal agreement. The agreement complies
with all the requirements of the AEA and therefore is non-exempt. The Administration submitted
an unclassified NPAS and a classified NPAS, as well as an addendum to the NPAS by the
Director of National Intelligence containing “a comprehensive analysis of the export control
system of Taiwan with respect to nuclear-related matters, including interactions with other
countries of proliferation concern and the actual or suspected nuclear, dual-use, or missile-related
transfers to such countries.”
The renewed agreement entered into force on June 22, 2014, the day when the previous
agreement was set to expire. This agreement has indefinite duration and would be canceled only
if one of the parties were to terminate the agreement; one year’s written notice is required for
such an action. The agreement includes all nine nonproliferation criteria. An Agreed Minute
prohibits Taiwanese sensitive nuclear facilities and any activities involving sensitive nuclear
(...continued)
05/08/message-congress-transmitting-agreement-cooperation-between-us-and-vietn.
17 The agreement is between the American Institute in Taiwan (AIT) and the Taipei Economic and Cultural
Representative Office in the United States (TECRO). Under the Taiwan Relations Act (P.L. 96-8; 22 U.S.C. 3301 et
seq.), the United States concludes executive agreements such as the Section 123 with TECRO.
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technologies.18 The agreement makes comprehensive IAEA safeguards a legal obligation,
although all Taiwanese nuclear facilities are currently under IAEA safeguards, including the
Additional Protocol, as if Taiwan were a non-nuclear weapon state party to the NPT. Should the
agreement be terminated, the nonproliferation controls would continue on any material,
equipment, and components transferred under the agreement.
The agreement, for the first time with Taiwan, provides for advance, long-term (also called
programmatic) consent for the retransfer of irradiated material to France or other countries or
destinations (agreed upon by the United States) for storage and reprocessing, under Section
131.a.(3). A similar provision was recently included in the Section 123 agreement with the United
Arab Emirates.19 The NPAS to the U.S.-Taiwan agreement notes that Congress has not blocked
the use of advance long-term consents in cooperation agreements in the past with Norway, UAE,
Sweden, or Finland. The Taipei Economic and Cultural Representative Office (TECRO) is
required to notify the United States of such transfers. The United States reserves the right to
terminate its approval at any time.
International Atomic Energy Agency (IAEA)
The United States has had a nuclear cooperation agreement with the IAEA since 1959. The
agreement was to expire on August 7, 2014. The United States and the IAEA extended the
existing agreement for an additional 40 years. This extension was approved unanimously by the
IAEA Board of Governors in November 2013, but it also needed to undergo the congressional
approval process under Section 123 of the AEA. This renewed agreement was transmitted to
Congress for review on January 29, 2014, the congressional review period was completed without
any legislative action, and the agreement went into force on June 6, 2014. According to U.S.
Ambassador to the IAEA Joseph McManus, this agreement’s purpose is to “allow the United
States to provide nuclear material to the IAEA and IAEA Member States through trilateral project
and supply agreements.”20 One example of such a project is the supply of research reactor fuel to
Mexico under a trilateral agreement.
Republic of Korea
The current U.S.-Korea 123 agreement was signed in 1973 and expired on March 19, 2014.
Negotiators from the two countries are working to overcome substantial disagreements about the
provisions of a new agreement so that it can take effect before the expiration date. With time
running out to address the fundamental U.S. and Korean differences over fuel cycle issues, the
two countries announced on April 24, 2013, that they would extend the existing agreement by two
years to allow for additional negotiations. This required legislative action that overruled the
requirements of the Atomic Energy Act (as amended). Legislation to authorize the two-year
extension has been passed unanimously by both the House and Senate.
18 Under the agreement, sensitive nuclear technology is defined as any information or facility “designed or used
primarily for uranium enrichment, reprocessing of nuclear fuel, heavy water production, or fabrication of nuclear fuel
containing plutonium.”
19 See CRS Report R40344, The United Arab Emirates Nuclear Program and Proposed U.S. Nuclear Cooperation, by
Christopher M. Blanchard and Paul K. Kerr.
20 http://vienna.usmission.gov/131129123.html.
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Representative Royce introduced H.R. 2449 (H.Rept. 113-209), which was passed by the House
unanimously on September 17. Senate Foreign Relations Committee Chairman Menendez and
Ranking Member Corker introduced S. 1901, which was passed by the Senate on January 27,
2014. The House report explains:
Given the lengthy period mandated by the AEA for Congressional consideration of civil
nuclear cooperation agreements subsequent to their having been formally submitted by the
President, insufficient time remains for the finalization of a replacement for the existing
agreement prior to its expiration. A lapse would prevent U.S. businesses from exporting any
nuclear-related goods or services to South Korea and might also result in significant
problems arising in U.S. relations with South Korea, a key economic and security ally. To
avoid this negative scenario, the two countries have agreed to extend the existing agreement
for two years to enable the ongoing negotiations to continue.
Both bills included language authorizing the President to extend the agreement notwithstanding
Section 123 of the AEA, to a date not later than March 19, 2016. On January 28, the House
passed S. 1901, and the President signed it into law on February 12, 2014 (P.L. 113-81).
Therefore, the current agreement will now expire on March 19, 2016. Negotiations over a longer-
term extension are still underway.21
21 See also CRS Report R41481, U.S.-South Korea Relations, coordinated by Mark E. Manyin.
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Nuclear Cooperation with Other Countries: A Primer
Appendix. Key Dates for Bilateral Civilian Nuclear
Cooperation (“Section 123”) Agreements
Most Recent
Original
Country
Agreement 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
Australia
May 4, 2010
December 22, 2010
30 years
December 22, 2040
Automatic 5-yr
1956
renewals after 30
years
Bangladesh
September 17, 1981
June 24, 1982
10 years
June 2012
Extension by
agreement of the
parties; renewed in
1992, 2002, not
renewed in 2012-
now expired, no
plans to renew
Brazil
October 14, 1997
September 15, 1999
30 years
September 15, 2029 Extension by
1972
agreement of the
parties
Canada
June 23, 1999
December 13, 1999
30 years
January 1, 2030
Automatic 5-yr
1955
renewals after 30
years
Chinab
July 23, 1985
December 30, 1985
30 years
December 30, 2015
None specified
Colombia
January 8, 1981
September 1983
30 years
September 17, 2013 None specified;
1962
now expired and no
plans to renew;
future cooperation
will be under the
IAEA agreement
Egypt
June 29, 1981
December 29, 1981
40 years
December 29, 2021
None specified
European
November 7, 1995
March 29, 1996
30 years
March 29, 2026
Automatic 5-yr
1958
Atomic
renewals after 30
Energy
years
Community
(Euratom)d
Indiae
October 10, 2008
December 6, 2008
40 years
December 6, 2048
Automatic 10-yr
renewals after 40
years
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Nuclear Cooperation with Other Countries: A Primer
Most Recent
Original
Country
Agreement Signed Entered into Force Duration
Expiration
Renewal Termsa
Agreementb
Indonesia
June 30, 1980
December 30, 1981
50 years
December 30, 2031
None specified
1960
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 30, 1988
30 years
July 30, 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
March 19, 1973
30 years,
March 19, 2016
None specified;
1956
Korea
amended
renewal agreement
5/15/74 to
negotiations under
41 years;
way
extended
2/14/14
for 2
more
years
Morocco
May 30, 1980
May 16, 1981
30 years
May 16, 2021
Automatic 5-yr
renewals after 30
years
Norway
January 12, 1984
July 2, 1984
30 years
July 2, 2014
None specified
1967
Peru
June 26, 1980
April 1982
20 years
April 2012
one 10-yr extension
after 20 years; now
expired, no plans to
renew
Russian
May 6, 2008
January 11, 2011
30 years
January 11, 2041
None specified
Federation
South Africa August 25, 1995
December 4, 1997
25 years
December 4, 2022
None specified
1957
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
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Nuclear Cooperation with Other Countries: A Primer
Most Recent
Original
Country
Agreement Signed Entered into Force Duration
Expiration
Renewal Termsa
Agreementb
Thailand
May 14, 1974
June 27, 1974
40 years
June 27, 2014
None specified;
1956
would need new
negotiated
agreement
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, 2039
None specified
Emirates
Vietnam
May 6, 2014
October 3, 2014
30 years
October 3, 2044
Automatic 5-yr
renewals after 30
years
Sources: CRS; Text of Agreements; U.S. Department of State Fact Sheet, “U.S. Bilateral Agreements for
Peaceful Nuclear Cooperation Pursuant to Section 123 of the U.S. Atomic Energy Act of 1954, as amended,”
December 5, 2013.
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. P.L. 99-183 approved the 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 Tianamen Square crackdown, P.L. 101-246 (FY90 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 al owed. See also CRS Report RL33192, U.S.-China
Nuclear Cooperation Agreement, coordinated by Shirley A. Kan.
d. 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, Sweden, and the United Kingdom.
e. 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.
Author Contact Information
Paul K. Kerr
Mary Beth D. Nikitin
Analyst in Nonproliferation
Specialist in Nonproliferation
pkerr@crs.loc.gov, 7-8693
mnikitin@crs.loc.gov, 7-7745
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