U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

Order Code RS22892
Updated July 30, 2008
U.S.-Russian Civilian Nuclear Cooperation
Agreement: Issues for Congress
Mary Beth Nikitin
Analyst in Nonproliferation
Foreign Affairs, Defense, and Trade Division
Summary
The United States and Russia signed a civilian nuclear cooperation agreement on
May 6, 2008. President Bush submitted the agreement to Congress on May 13. This
report discusses key policy issues related to that agreement, including future nuclear
energy cooperation with Russia, U.S.-Russian bilateral relations, nonproliferation
cooperation and Russia’s policies toward Iran. This report will be updated.
On May 13, 2008, President Bush submitted the proposed text of the U.S.-Russian
civilian nuclear cooperation agreement to Congress along with the required Nuclear
Proliferation Assessment (NPAS) and his determination that the agreement promotes U.S.
national security.1 The annexed classified NPAS was submitted separately. The agreement
was signed by the two countries in Moscow on May 6, 2008. According to the President’s
letter of submittal, the agreement meets all the terms of the Atomic Energy Act2 and
therefore does not require any exemptions from the law’s requirements. Therefore, the
agreement will enter into effect after 90 days of continuous session3 unless Congress
enacts a joint resolution of disapproval. Congress could adopt either a joint resolution of
approval with (or without) conditions, or standalone legislation that could approve or
disapprove the agreement.4
On June 24, Chairman of the Senate Foreign Relations Committee Joseph Biden and
Senator Richard Lugar submitted a joint resolution of approval, S.J.Res.42. Chairman of
1 [http://www.whitehouse.gov/news/releases/2008/05/20080513-1.html].
2 Under section 123.a., codified at 42 U.S.C. 2153(a)), Atomic Energy Act of 1946, ch. 724,
60 Stat. 755 (1946), as amended.
3 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.
4 See CRS Report RL34541, Nuclear Cooperation Agreement with Russia: Statutory Procedures
for Congressional Consideration, by Richard Beth.

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the House Committee on Foreign Affairs Howard Berman and Ranking Member Ileana
Ros-Lehtinen introduced a resolution of disapproval, H.J.Res. 95, on June 24.
Representative Edward Markey on May 14 introduced H.J.Res. 85 expressing disfavor
of the agreement. On July 23, The House Committee on Foreign Affairs reported H.R.
65745 out of committee, which would approve the U.S.-Russia 123 agreement,
notwithstanding the AEA. Under this resolution, no license could be issued for the export
of nuclear material, equipment, or technology to Russia unless the President certified to
Congress that Russia (1) is not transferring sensitive nuclear, biological- or chemical-
weapons-related, ballistic or cruise missile technologies, goods, or services to Iran; (2) is
cooperating with the United States on international sanctions on Iran; and (3) had ratified
appropriate nuclear liability conventions or enacted domestic laws to protect U.S. firms.
Background
The U.S. Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq) governs significant
nuclear cooperation between the United States and other states.6 The United States has
about two dozen agreements for civil nuclear cooperation in place. Such agreements,
known as “123 agreements,” provide the framework and authorization for cooperation,
and do not guarantee certain exports, technology, or material. Before significant nuclear
exports7 can occur, the State Department, with the advice of the Department of Energy,
negotiates an agreement, which must meet criteria listed in Section 123.a., (1) through (9),
42 U.S.C. 2151.8 Russia is the only NPT-recognized nuclear weapon state with whom the
United States does not yet have a civilian nuclear cooperation agreement. In the case of
the agreement with China, Members of Congress attached conditions to the joint
resolution of approval of the agreement, based on concerns, among others, that China was
exporting materials and equipment relevant for nuclear weapons development to
nonnuclear weapon states.9
Prior to July 2006, Moscow’s nuclear commerce with Iran presented the chief
obstacle to U.S.-Russian nuclear cooperation. Several factors may have contributed to the
shift in U.S. policy: a tougher line by Moscow since 2003 with respect to Iran, especially
Russia’s agreement with Iran to take back spent nuclear fuel from the Russian-built
Bushehr reactor; President Bush’s embrace of nuclear power as an alternative to reliance
5 The United States-Russian Federation Nuclear Cooperation Agreement Act of 2008.
6 Nuclear cooperation includes the distribution of special nuclear material, source material, and
byproduct material, to licensing for commercial, medical, and industrial purposes. These terms,
“special nuclear material,” “source material,” and “byproduct material,” as well as other terms
used in the statute, are defined in 42 U.S.C. § 2014.
7 Significant nuclear cooperation includes the physical transfer of reactors, reactor components,
or special nuclear material, source material, and byproduct material, under license for
commercial, medical, and industrial purposes.
8 The Atomic Energy Act also 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.) Even with a 123 agreement in place, each export of
nuclear material, equipment, or technology requires a specific export license or other
authorization.
9 See P.L. 99-183 and CRS Report RL33192, U.S.-China Nuclear Cooperation Agreement.

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on hydrocarbons; President Bush’s proposals to multilateralize the nuclear fuel cycle and
develop proliferation-resistant technologies through the Global Nuclear Energy
Partnership (GNEP) (which includes embracing reprocessing technology after decades of
U.S. opposition);10 and Russia’s proposals to host an international fuel center which
would store and reprocess spent fuel and enrich uranium for fresh fuel.
Nuclear Energy and Nonproliferation Cooperation
Pledging to accelerate nuclear energy cooperation, Presidents Bush and Putin
established in July 2006 a working group11 whose report defined an Action Plan for
cooperation that led to the bilateral Presidential Declaration on Nuclear Energy and
Nonproliferation of July 3, 2007.12 U.S. officials have stated that a 123 agreement is
needed to implement this plan — for example, full scale technical cooperation on fast
reactors and demonstration of advanced spent fuel processing and waste management
technologies.13 Benefits to the United States from a 123 agreement with Russia could
include development of advanced nuclear fuel cycle technologies and a future generation
of proliferation-resistant reactors,14 joint commercial partnerships, influence over Russian
nonproliferation and nuclear export policies.15 A common argument in favor of the
agreement is that the United States could gain from Russian work on
reprocessing/advanced fuel cycle research. Since the United States does not operate fast
neutron reactors or reprocess, testing of fuels developed under the GNEP program could
be done in Russia, including post-irradiation examination. Supporters argue that U.S.
partnership in developing these technologies could help ensure that “proliferation-
resistance” remains a priority. Critics point out that the agreement risks entrenching the
Bush Administration’s policy of accepting reprocessing as a necessary part of the future
of nuclear energy (although a future administration and Congress would always have the
ability to guide the pace and direction of these developments).
A 123 agreement could provide Russia with access to U.S. nuclear technologies and
markets, the right to receive U.S.-origin nuclear materials into Russia for storage or
processing, and an improved international image for its nuclear industry. The agreement
might also be construed as U.S. approval for Russia’s civilian nuclear industry, thereby
enabling Moscow to conclude similar agreements with other countries. Some have
10 See CRS Report RS22542, Nuclear Fuel Reprocessing: U.S. Policy Development.
11 “Joint Working Group on the Development of a Bilateral Action Plan to Enhance Global and
Bilateral Nuclear Energy Cooperation,” [http://www.doe.gov/news/4553.htm].
12 Text of Declaration on Nuclear Energy and Nonproliferation Joint Actions, July 3, 2007,
[http://moscow.usembassy.gov/bilateral/joint_statement.php?record_id=64].
13 This effort would be part of GNEP and the multi-nation Generation IV initiative to develop
the next generation of civil nuclear power reactors. Collaboration may also take place under the
rubric of the IAEA International Project on Innovative Nuclear Rectors and Fuel Cycles
(INPRO).
14 A “proliferation-resistant” reactor is meant to make it more difficult to divert material for
weapons use, and often refers to reprocessing technology that would not result in separated
plutonium. See [http://www.gnep.energy.gov/gnepProliferationResistantRecycling.html].
15 Richard Lugar and Sam Nunn, “Help Russia Help Us,” New York Times, May 30, 2008,
[http://www.nytimes.com/2008/05/30/opinion/30lugar.html?th&emc=th].

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criticized the agreement on this basis — that safety and environmental problems with the
Russian nuclear industry remain and therefore it would be premature to give approval.
Others counter that only through such an agreement will western safety technology and
standards be available to Russia. Russia could also expand its reach into new nuclear
power markets by adding U.S. safety and automated control systems to its exported
reactors, or partnering with U.S. multinationals.
Supporters of the agreement argue that it could bolster the nonproliferation regime
by promoting a nuclear energy framework that addresses emerging nuclear energy states’
fuel needs while dissuading them from pursuing indigenous enrichment and reprocessing
technologies. Proposals include the development of multilateral fuel assurances,
international fuel service centers, and a new generation of “proliferation-resistant”
reactors. Russia has set up the joint venture International Uranium Enrichment Center at
Angarsk, which is to be under international safeguards, and is discussing options for
hosting an international fuel bank at the site. The United States may choose to join the
Angarsk consortium in order to have more input into its management, but a section 123
agreement with the United States is not necessary for Russia to proceed with these efforts,
unless the United States transfers nuclear material or equipment.
Additionally, a 123 agreement would allow for Russian reprocessing of U.S.-origin
spent fuel from third countries (although Russia has not yet decided to do this) or long-
term spent fuel storage of such material in Russia.16 The enrichment of U.S.-obligated
reprocessed uranium, and the reenrichment of U.S. uranium tails or U.S.-origin tails,
using Russian enrichment facilities, would also require a 123 agreement.17 There appears
to be interest by Russia in establishing an International Spent Fuel Storage Facility
(ISFSF) that could accept U.S.-origin fuel, for example from Taiwan or South Korea, or
as part of a Russian fuel leasing and return program for future nuclear power plants
abroad.18 The U.S. may encourage a ISFSF in Russia as a way to prevent countries from
pursuing reprocessing technologies.19 Collaboration between the United States and Russia
on providing nuclear fuel cycle services to nonnuclear weapon states could increase the
confidence of these states in the services and therefore increase participation.
U.S.-Russian Relations
The United States and Russia are at odds on a number of foreign policy issues,
including the deployment of missile defense systems in Eastern Europe and the expansion
16 Under Article 9 of the proposed agreement, the parties would have to agree before this
occurred. According to the Atomic Energy Act, this would be considered a subsequent
arrangement, under Section 131.
17 Import of tailings to Russia from European countries was halted in 2007 due to public protest
and environmental concerns. “Russia quits uranium tailings imports over safety concerns,” RIA
Novosti, June 22, 2007. Existing contracts will be fulfilled (two with URENCO until 2009; two
with EURODIF until 2014).
18 “Analysis: Storage needs for nuclear growth,” UPI Energy, May 6, 2008.
19 The Russian Duma passed a law in 2001 allowing for Russia to accept foreign spent fuel
imports, but due to public opposition, Russian officials have stated that Russia does not now plan
to import non-Russian-origin spent fuel for storage.

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of NATO.20 In this context, cooperation with Russia on nonproliferation, nuclear terrorism
prevention, and nuclear energy may have particular value for the bilateral relationship.
U.S. Ambassador Burns’ remarked at the May signing ceremony that the 123 agreement
marks Washington and Moscow’s transition from “nuclear rivals” to “nuclear partners.”
The timing of the agreement’s signing, the day before Putin stepped down as Russian
President, is also viewed by some as a culmination of bilateral cooperation between the
Bush and Putin administrations.21 Although a 123 agreement will not itself stipulate new
programs or collaborative projects, it may have symbolic value and remove a longtime
irritant in bilateral relations. Supporters argue that rejecting the agreement could
embolden anti-U.S. sentiment and be counter-productive to cooperation in other areas.
Critics counter that its symbolic value is a reason not to enact it at this time — it would
be an undeserved reward for a Russian government critics view as antidemocratic and
repressive, and whose foreign policy often has been at odds with U.S. interests.
Russian Policy Toward Iran
During the Clinton Administration and the early Bush Administration, the United
States had a policy not to conclude a civilian nuclear cooperation agreement with Russia
while it was building a nuclear power reactor for Iran at Bushehr. After details about
Iran’s clandestine nuclear activities came to light during 2002-2006, Russia began to step
up cooperation with the United States and other countries negotiating with Iran over its
nuclear program. Additionally, Russia has insisted on IAEA safeguards on any transfers
to Iran’s civilian nuclear reactor at Bushehr, on condition that the resulting spent fuel will
be returned to Russia, per a February 2005 agreement. Moscow has also invited Tehran
to participate in its newly established international uranium enrichment center at Angarsk,
as an alternative to an indigenous Iranian enrichment capability — an offer that Iran has
rejected. The Bush administration has supported this approach and since 2002 no longer
objects to Russia’s building the Bushehr nuclear power plant in Iran. President Bush, most
recently at the April 2008 summit in Sochi, has praised Russian President Putin for his
“leadership” in offering a solution to the Iranian nuclear negotiations. Washington has had
less success convincing Moscow to agree with its proposals for tougher sanctions on Iran
in the U.N. Security Council, and Russia has been only reluctantly supportive of U.N.
Security Council Resolutions (UNSCRs) imposing more limited sanctions on Iran,
preferring a primarily diplomatic solution to the crisis. However, President Putin has
signed decrees to fully implement UNSCRs 1737, 1747, and 1803.22
The NPAS that accompanies the proposed U.S.-Russia 123 agreement says that the
United States “has received assurances from Russia at the highest levels that its
government would not tolerate cooperation with Iran in violation of its U.N. Security
Council obligations.” Reportedly, there may have been recent intelligence indicating that
Russian entities have transferred sensitive nuclear technology to Iran. But this activity was
ended by high-level Russian governmental intervention and assurances were given to the
20 See CRS Report RL33407, Russian Political, Economic, and Security Issues and U.S. Interests.
21 Maria Danilova, “Officials: US, Russia to Sign Civil Nuclear Agreement,” Associated Press,
May 6, 2008.
22 “Medvedev Likely to Face Problems with Iran,” RIA Novosti, May 13, 2008,
[http://en.rian.ru/analysis/20080513/107253545.html].

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highest levels of the U.S. government.23 This information may be included in the
classified annex to the NPAS. Additionally, Russian entities may be continuing their
ballistic missile-related transfers to Iran.24
Continued questions about the nature and extent of Russian cooperation with Iran
remains a potential obstacle to approval of the agreement by Congress. The 2006 Iran
Freedom Support Act (P.L. 109-293) gives the sense of Congress that no nuclear
cooperation agreement should be entered into with a country that is assisting the nuclear
program of Iran. The Iran Counter-Proliferation Act of 2007 (HR1400), passed by the
House, would prohibit any “agreement for cooperation between the United States and the
government of any country that is assisting the nuclear program of Iran or transferring
advanced conventional weapons or missiles to Iran.” Similarly, the Senate is considering
S. 970 which specifically prohibits a 123 agreement with Russia until “Russia has
suspended all nuclear assistance to Iran and all transfers of advanced conventional
weapons and missiles to Iran” or “Iran has completely, verifiably, and irreversibly
dismantled all nuclear enrichment-related and reprocessing-related programs.” The
Security through Termination Of Proliferation Act of 2008 (H.R. 6178, introduced on
June 4, 2008) includes similar provisions, including that a nuclear cooperation agreement
with a country proliferating to Iran, North Korea or Syria may not enter into force. These
bills, as well as letters sent to the President from Members of Congress after submittal of
the 123 agreement to the Congress, show a continued linkage between Russia’s policies
towards Iran and support for a bilateral civilian nuclear accord.
Some argue that maximum leverage has already been gained in coaxing Russian
behavior on Iran in exchange for the signing of a 123 agreement, and that there will be
opportunities in the future to exercise further leverage if necessary, since each transaction
under a 123 agreement must be approved subsequently.25 Supporters may also see the 123
agreement as a way to encourage Russia to continue pressing Iran on such issues as the
Bushehr reactor’s fuel provisions. Some argue that engaging Russia on the scientific level
would improve transparency, and could provide a deterrent to Russian technical
cooperation with Iran. Possible consequences of Congress disapproving the agreement
could be Russia pulling back from cooperation with the United States on Iran policy and
nonproliferation goals, such as decreased transparency at nuclear sites. Rejection of the
agreement might affect the willingness of Russia to enter into future bilateral agreements,
such as a future HEU-LEU blend-down agreement.
23 “Prospects for a U.S.-Russian Agreement for Peaceful Nuclear Cooperation in Congress:
Robert Einhorn and Jon Wolfsthal,” Remarks at the Carnegie Moscow Center, April 15, 2008,
[http://www.carnegie.ru/en/news/78128.htm].
24 The 2006 Director of National Intelligence report to Congress on WMD Acquisition says that
“Russian entities have supplied a variety of ballistic missile-related goods and technical know-
how to China, Iran, India, and North Korea. Iran’s earlier success in gaining technology and
materials from Russian entities and continuing assistance by such entities, probably supports
Iranian efforts to develop new longer-range missiles and increases Tehran’s self-sufficiency in
missile production.”
25 Thomas Graham, “The Friend of My Enemy,” National Interest Online, April 1, 2008,
[http://www.nationalinterest.org/Article.aspx?id=17266]; Einhorn, Gottemoeller, McGoldrick,
Poneman, Wolfsthal, “The U.S.-Russian Civil Nuclear Agreement: A Framework for
Cooperation,” CSIS, May 2008, [http://www.csis.org/component/option,com_csis_pubs/task,
view/id,4499/type,1/].