Nuclear Cooperation with Other Countries: A Primer

December 6, 2016 (RS22937)
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Summary

In order for the United States to engage in significant 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). Significant nuclear cooperation includes the export of reactors, critical parts of reactors, and reactor fuel. 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.


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, and the export of reactors and critical parts of reactors. Section 123 agreements are required for the export of commodities under NRC export licensing authority (10 C.F.R. 110).4

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."

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., 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

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.5 To date, all of the Section 123 agreements in force are non-exempt agreements.6 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.7

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.8 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 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:

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.9

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.10 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 nuclear weapons-related transactions with Iran. Section 102a.(2)(A) of the law states that "no license may be issued for the export, and no approval may be given for the transfer or retransfer" of "any nuclear material, facilities, components, or other goods, services, or technology that are or would be subject to an agreement for cooperation between the United States" and such countries. Section 102 a.(2)(B), however, allows the President to waive these restrictions. Section 102a.(2)(C) allows the President to authorize licenses for nuclear exports "on a case-by-case basis" to entities (which have not been sanctioned) in countries subject to the restrictions described above.11

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 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."12 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."13 If the Secretary of Defense determines that "the export or transfer might be subject to a genuine terrorist threat," that Secretary is required to provide a written risk assessment of the risk and a "description of the actions" that he or she "considers necessary to upgrade physical protection measures."

Examples of Subsequent Arrangements

U.S.-Japan Agreement

The first test of the subsequent arrangement provisions came in August 1978, when the Department of Energy informed the House and Senate foreign relations committees of a Japanese request for approval of the transfer of spent fuel assemblies from Japan to the United Kingdom for reprocessing. This was the first "subsequent arrangement" approved. The United States and Japan entered into similar arrangements until 1988, when the two governments revised their nuclear cooperation agreement. That agreement included an "implementing agreement," which provided 30-year advance consent for the transfer of spent fuel from Japan to Europe for reprocessing. While controversial, Congress did not block the nuclear cooperation agreement.

A subsequent arrangement was also necessary for the sea transport from Europe to Japan of plutonium that had been separated from the Japanese spent fuel. The Department of Energy approved a Japanese request for 30-year advance consent for the sea transport of plutonium. It was submitted to Congress as a subsequent arrangement, and took effect in October 1988.

U.S.-India Agreement

The U.S. nuclear cooperation agreement with India grants New Delhi consent to reprocess nuclear material transferred pursuant to the agreement, as well as "nuclear material and by-product material used in or produced through the use of nuclear material, non-nuclear material, or equipment so transferred." However, the agreement also includes a requirement that India first build a new national reprocessing facility to be operated under IAEA safeguards. The two countries signed a subsequent arrangement 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.14 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.

Recent Legislative Activity

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 114th 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. Congress also passed P.L. 113-81, which provided a two-year extension to the current Section 123 agreement with the Republic of Korea to allow for additional negotiating time. In 2015, Congress reviewed renewal Section 123 agreements with the People's Republic of China and the Republic of Korea. In 2016, an agreement with Norway was transmitted to Congress for review.

Legislation in the 113th Congress

H.R. 3766

In December 2013, Representatives Ileana Ros-Lehtinen and Brad Sherman introduced H.R. 3766. This bill would have required 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 facilities on a country's territory, similar to the provisions in the nuclear cooperation agreement with the UAE. The bill would also have required a joint resolution of approval for subsequent arrangements under nuclear cooperation agreements. The bill would have prohibited any U.S. assistance, other than humanitarian aid, to a cooperating country that has withdrawn from the NPT, and would have required that country to return material, equipment, and components transferred under the agreement. Section 5 would have required 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.15 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 have approved the U.S.-Vietnam agreement but also would have limited 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 have required 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 specified 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 114th Congress

U.S.-China Agreement16

President Obama submitted a new 30-year U.S.-China nuclear cooperation agreement for congressional review on April 21, 2015. According to President Obama's letter to Congress, the agreement meets all the terms of the Atomic Energy Act and does not require any exemptions from the law's requirements. Therefore, the agreement could enter into force after a 30-day consultation period and a review period of 60 days of continuous session17 unless Congress enacted a joint resolution of disapproval. Congress also has the option of adopting either a joint resolution of approval with (or without) conditions, or stand-alone legislation that could approve or disapprove the agreement. Any congressional efforts to block the agreement would be subject to presidential veto.

H.J.Res. 56, introduced in May by Representative Joe Wilson and co-sponsored by Representative Brendan Boyle, would approve the U.S.-China Section 123 agreement. Senators Marco Rubio and Tom Cotton introduced on July 15 S.J.Res. 19, which would "disfavor" the proposed Section 123 agreement with China. This resolution was automatically discharged from the Senate Foreign Relations Committee and placed on the Senate Legislative Calendar under General Orders. No action was taken before the congressional review period for this agreement ended on July 31. The agreement entered into force on November 10, 2015.

U.S.-South Korea Agreement

Congress began its review of a proposed renewal nuclear cooperation agreement with South Korea on June 16, 2015. This agreement meets all the terms of the Atomic Energy Act, and therefore was eligible to enter into force after a 30-day consultation period and a review period of 60 days of continuous session unless Congress had enacted a joint resolution of disapproval. Two bills were introduced that would have approved the agreement. H.J.Res. 63 would approve the U.S.-South Korea 123 agreement, and was introduced by House Foreign Affairs Committee Chairman Ed Royce and cosponsored by ranking member Eliot Engel on July 31, 2015. On July 28, Senate Foreign Relations Committee ranking member Ben Cardin introduced S.J.Res. 20, which would also approve this agreement. The congressional review period was completed on October 29. The agreement entered into force on November 25, 2015.

U.S.-Norway Agreement

A U.S. civilian nuclear cooperation agreement with Norway under Section 123 of the Atomic Energy Act of 1954, as amended, was in force from July 1984 to July 2014. President Obama transmitted the proposed text of a new 30-year agreement for congressional review on June 14, 2016.18 The President has certified that the proposed agreement complies with the relevant provisions of the Atomic Energy Act (§123 a.) and therefore does not require an affirmative vote of approval. It is possible that the congressional calendar will not allow for the full review period this year. If adjournment resolutions are adopted for projected state and district work periods, the end of the review period could be later than the projected sine die adjournment of Congress. If that happens, in order to take effect the proposed Section 123 agreement would need to be resubmitted by the new President in the 115th Congress, and the review period would begin again. Another option would be for Congress to approve the agreement in legislation. Senators Corker and Cardin submitted a bill (S. 8) that would provide for the approval of the agreement on December 1, 2016.

Appendix. Key Dates for Bilateral Civilian Nuclear Cooperation ("Section 123") Agreements

Table A-1. Key Dates

Country

Most Recent Agreement Signed

Entered into Force

Duration

Expiration

Renewal Termsa

Original 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 renewals after 30 years

1956

Brazil

October 14, 1997

September 15, 1999

30 years

September 15, 2029

Extension by agreement of the parties

1972

Canada

June 23, 1999

December 13, 1999

30 years

January 1, 2030

Automatic 5-yr renewals after 30 years

1955

Chinac

April 13, 2015

November 10, 2015

30 years

2045

None specified

 1985

Egypt

June 29, 1981

December 29, 1981

40 years

December 29, 2021

 None specified

 

European Atomic Energy Community (Euratom)d

 November 7, 1995

March 29, 1996

30 years

March 29, 2026

Automatic 5-yr renewals after 30 years

1958

Indiae

October 10, 2008

December 6, 2008

40 years

December 6, 2048

Automatic 10-yr renewals after 40 years

 

Indonesia

June 30, 1980

December 30, 1981

50 years

December 30, 2031

 None specified

1960

International Atomic Energy Agency (IAEA)

May 11, 1959

August 7, 1959

95 years (Amended in 1974, 1980, Renewed in 2014)

August 7, 2054

None specified

1959

Japan

November 4, 1987

July 30, 1988

30 years

July 30, 2018

Remains in force until terminated by a party

1968

Kazakhstan

November 18, 1997

November 5, 1999

30 years

November 5, 2029

None specified

 

Republic of Korea

November 24, 1972

[proposed renewal agreement signed June 15, 2015]

November 25, 2015

20 years

November 24, 2035

Automatic 5-yr renewals after 20 years

1956

Morocco

May 30, 1980

May 16, 1981

30 years

May 16, 2021

Automatic 5-yr renewals after 30 years

 

Norway

June 11, 2016

Under congressional review

30 years

Thirty years after entry into force

None specified

1984

Russian Federation

May 6, 2008

January 11, 2011

30 years

January 11, 2041

 None specified

 

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 renewals after 30 years

1965

Taiwan (TECRO)

December 20, 2013

June 22, 2014

amended in 1974, to 30 years; renewed in 2014 to indefinite duration

none

n/a

1955

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 Emirates

May 21, 2009

December 17, 2009

30 years

December 17, 2039

None specified

 

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 original 1985 agreement but prohibited licenses from being issued until the President certified that transferred items would be used for solely peaceful purposes and reported to Congress on China's nonproliferation policies. Following the Tiananmen 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 allowed. See also CRS Report RL33192, U.S.-China Nuclear Cooperation Agreement, by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

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 [author name scrubbed].

Author Contact Information

[author name scrubbed], Analyst in Nonproliferation ([email address scrubbed], [phone number scrubbed])
[author name scrubbed], Specialist in Nonproliferation ([email address scrubbed], [phone number scrubbed])

Footnotes

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.

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.

4.

For a list of commodities, see http://www.nrc.gov/about-nrc/ip/export-import.html.

5.

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.

6.

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.

7.

See CRS Report RL33016, U.S. Nuclear Cooperation with India: Issues for Congress, by [author name scrubbed]. The agreement entered into force in December 2008.

8.

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.

9.

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.

10.

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."

11.

For details on these sanctions, see CRS Report RS20871, Iran Sanctions, by [author name scrubbed].

12.

These provisions also apply to facilities that, prior to March 18, 1978, did not have a subsequent arrangement for reprocessing.

13.

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."

14.

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.

15.

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."

16.

See CRS Report RL33192, U.S.-China Nuclear Cooperation Agreement, by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

17.

Days on which either house is in a recess of more than three days (pursuant to a concurrent resolution authorizing the recess) do not count toward the total. If Congress adjourns its session sine die, continuity is broken, and the count starts anew when it reconvenes.

18.

https://www.whitehouse.gov/the-press-office/2016/06/14/message-congress-agreement-cooperation-between-government-united-states.