U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation
Released: 2006-12-22T00:00:00

Overview

In July 2005, President Bush announced his intention to conclude a peaceful nuclear cooperation agreement with India. India, which is not a party to the Nuclear Nonproliferation Treaty (NPT), is considered under U.S. law to be a non-nuclear weapon state, yet has tested nuclear weapons and has an ongoing nuclear weapons program. For these reasons, the President would need to make certain waivers and determinations pursuant to the Atomic Energy Act (AEA) before nuclear cooperation with a state such as India could proceed.

The Administration proposed legislation (introduced as H.R. 4974 / S. 2429 ) in March 2006 that, in addition to providing waivers of relevant provisions of the AEA (Sections 123 a. (2), 128, and 129), would have allowed a nuclear cooperation agreement with India to enter into force without a vote from Congress, as though it conformed to AEA requirements. On July 26, 2006, the House passed H.R. 5682 by a vote of 359 to 68. On November 16, 2006, the Senate passed H.R. 5682 by a vote of 85 to12, substituting the text of S. 3709 as an engrossed amendment; the Senate insisted on its amendment, necessitating a conference to resolve differences between the bills. On December 7, conferees filed a conference report, and on December 8, the House approved the conference report by a vote of 330 to 59; the Senate approved the conference report by unanimous consent in the early hours of December 9. On December 18, President Bush signed the bill into law, P.L. 109-401 . His signing statement is discussed in more detail below.

H.R. 5682 in the House

Committee Actions

The House International Relations Committee met on June 27, 2006 to consider H.R. 5682 , "United States and India Nuclear Cooperation Promotion Act of 2006," introduced on June 26 by Representative Hyde. The Committee voted to adopt 6 of 12 amendments (one was withdrawn):

Representative Royce offered an amendment to ensure that nothing in the act shall be interpreted as permitting any civil nuclear cooperation with India that would in any way assist, encourage, or induce India to manufacture or otherwise acquire nuclear weapons (Section 4 (d) (1)); Representative Sherman offered an amendment to strengthen one of the determinations the President must make to implement the waivers pertaining to the Nuclear Suppliers Group (NSG), stipulating that the required NSG decision would not permit nuclear commerce with any other non-nuclear weapon state that does not have full-scope International Atomic Energy Act (IAEA) safeguards (Section 4 (b) (7)). Representative Schiff offered an amendment with three components: to add a provision to U.S. policy with respect to South Asia (Section 3 (b)(7)) encouraging India not to increase its production of fissile material at military facilities pending a multilateral moratorium on production of such material for nuclear weapons; to add a reporting requirement for the Presidential submission to implement the waivers (Section 4 (c) (2) (I)) on steps taken to ensure the U.S. transfers will not be replicated by India or used in its military facilities and that U.S. nuclear fuel supply does not facilitate military production of high-enriched uranium or plutonium; and to add a reporting requirement for an annual report on the same (Section 4 (o) (2) (C)). Representative Crowley offered an amendment to add a requirement (Section 4 (o)(3)) for an annual report on new Indian nuclear facilities. Representative Berkley offered two amendments related to India's spent fuel disposal: an annual report describing the disposal of spent nuclear fuel from India's civil nuclear program (Section 4 (o) (4), and a statement of policy that any spent civilian nuclear fuel in India that might be stored in the United States is considered by Congress under existing procedures of the Atomic Energy Act (Section 3 (b) (7)).

An amendment by Ms. Berkley to prohibit any Indian spent fuel from being stored in the United States was rejected by a vote of 15-19. The Committee also voted down four other amendments, including two by Representative Berman designed to place limits on U.S. cooperation until India halts production of fissile material for nuclear weapons. The first Berman amendment, rejected by a vote of 13-32, sought to condition the President's use of waiver authority (by adding a new determination by the President in Section 4 (b) of the bill) on India's adherence to a unilateral or multilateral moratorium or a multilateral treaty prohibiting the production of fissile material for nuclear weapons. The second amendment, rejected by a vote of 12-31, sought to restrict transfers of U.S. nuclear material under a cooperation agreement until such time that India halted fissile material production for weapons, either by adhering to a unilateral or multilateral moratorium, or a multilateral treaty. The Committee also rejected by a vote of 10-32 an amendment by Representative Sherman to condition the President's use of waiver authority on an additional determination, under Section 4 (b) of H.R. 5682 , that India's nuclear weapons program was not using more domestic uranium than it had before July 2005. The amendment would have attached an annual certification that required termination of nuclear cooperation if the certification could not be made. Finally, the Committee rejected, by a vote of 4-37, an amendment by Representative Lee that would have required India to join the Nuclear Nonproliferation Treaty (NPT) before the President could exercise his waiver authority.

The Committee on Rules held a hearing on July 25 th to consider amendments to H.R. 5682 and procedures for handling the bill on the floor. H. Res 947 waived all points of order against the bill, specified the allowed amendments and limited floor debate to one hour. The following six amendments were allowed to be offered on the floor:

Representatives Hyde (IL)/Lantos (CA): Manager's amendment, containing technical and conforming changes to the text, as well as one substantive change: removing an amendment proposed by Representative Sherman and adopted during the full committee markup relating to subsection 4(b)(7). Representative Stearns (FL): Reinforces the intent of Congress that the nuclear cooperation into which the governments of the United States and India would enter is for peaceful, productive purposes, not military. Representatives Jackson-Lee (TX)/Burton (IN): Sense of Congress declaring the importance of the South Asia region and urging the continuation of the United States' policy of engagement, collaboration, and exchanges with and between India and Pakistan. Representative Sherman (CA): Requires that, before any nuclear cooperation with India can go forward, and every year thereafter, the President must certify that during the preceding year India has not increased the level of domestic uranium it sends through its weapons program. Baseline for the determination under the amendment is the 365 day period preceding the July 18, 2005, Bush-Singh declaration on nuclear cooperation. Representative Berman (CA): Restricts exports of uranium and other types of nuclear reactor fuel (defined as "source material" and 'special nuclear material' in the Atomic Energy Act of 1954) to India until the President determines that India has halted the production of fissile material (i.e., plutonium and highly enriched uranium) for use in nuclear weapons. Representative Fortenberry (NE): Provides Congress with the ability to assess, to the extent possible, whether annual levels of India's nuclear fissile production may imply a possible violation of Article I of the Nuclear Nonproliferation Treaty.

Three amendments were not allowed for consideration on the floor. These were

an amendment by Representative Woolsey that would have prohibited the export of any nuclear-related item to India until the President has implemented and observed all NPT obligations and commitments of the United States and has revised United States' policies relating to nuclear weapons accordingly; an amendment by Representative Barbara Lee that would have required India to place all electricity-producing reactors under safeguards, undertake a binding obligation not to transfer any nuclear-weapon-related information or technology (per Article I of the NPT) and take concrete steps toward disarmament; and an amendment by Representatives Markey and Upton that would have prohibited nuclear cooperation with India from commencing until the President has determined that the United States has secured India's full and active support in preventing Iran from acquiring weapons of mass destruction.

Floor Debate and Votes

The House first considered H. Res 947, which, after several objections to limits on time and the exclusion of certain amendments by Representative Markey and others, passed by a vote of 311 to 112. Of the six amendments considered, three passed by voice vote (the Managers' amendment, Representatives Jackson-Lee/Burton's amendment, and Representative Fortenberry's amendment); Representative Stearn's amendment was recorded as 414-0, and the amendments offered by Representatives Sherman and Berman were defeated (the votes, respectively, were 155 to 268, and 184 to 241).

Representative Markey made a motion to recommit the legislation back to the House International Relations Committee with instructions to include language that would require that nuclear cooperation with India could only commence after the president has determined that the United States has secured India's full support in preventing Iran from acquiring weapons of mass destruction. That motion to recommit was defeated in a vote of 192 to 235.

The House passed H.R. 5682 , "Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006," as amended, by 359 to 68 on July 26, 2006.

S. 3709/H.R. 5682 in the Senate

Committee Actions

On June 29, 2006, the Senate Foreign Relations Committee considered original legislation, S. 3709 , to create an exception for India from relevant provisions of the Atomic Energy Act (See S.Rept. 109-288 ). The Committee voted to adopt 2 of 3 amendments:

Senator Chafee offered an amendment making it U.S. policy to ensure that exports of nuclear fuel to India did not encourage India to increase its production of fissile material (Section 103 (9)); Senator Obama offered an amendment to ensure that the United States did not encourage other states to continue nuclear exports to India, if the United States exports to India terminated under U.S. law (Section 102 (6)).

The Committee rejected an amendment by Senator Feingold requiring an additional presidential determination in Section 105 of the bill by a vote of 5-13. The Feingold amendment would have conditioned the President's use of waiver authority on a determination that U.S. civil nuclear assistance to India would in no way assist, encourage, or induce India to manufacture nuclear weapons or nuclear devices. The amendment was identical in text to the Schiff amendment to H.R. 5682 , but sought instead to require a determination rather than a report.

Floor Debate and Votes

An initial attempt to bring S. 3709 to the Senate floor in September failed to gain unanimous consent agreement. Among several issues, two apparently delayed the bill—language in Title II pertaining to implementing legislation for the U.S. Additional Protocol, and potential concern about whether the United States would accept U.S.-origin spent fuel back from Indian reactors. In the first case, concerns appeared to be mostly resolved by incorporating language into a manager's amendment, with the exception of two issues raised by Senator Ensign in two amendments he introduced on the floor on November 16 th that did not pass. These are described in more detail below. In the second case, the concern about disposition of Indian spent fuel was dropped prior to the bill's reaching the floor.

On November 15, 2006, the Senate agreed by unanimous consent to consider S. 3709 , at a time to be determined by the Majority Leader, in consultation with the Democratic Leader. The unanimous consent agreement specified that a managers' amendment would serve as the original text for the purpose of further amendment; and that the only other amendments to be considered would include the following: Senators Ensign (considered in closed session), Reed, Levin, Obama, Dorgan (two amendments), Feingold, Boxer, Feinstein, Harkin, Bingaman (up to seven amendments), Kennedy, and Dodd. Of these, Senators Reed, Levin, Kennedy, and Dodd did not introduce amendments, and Senator Bingaman introduced three, rather than seven. All but Senator Feingold's amendment were considered to be relevant second-degree amendments and related to the subject matter of the bill. Further, the unanimous consent agreement provided that once the bill was read a third time, the Senate would begin consideration of H.R. 5682 , the House-passed companion, striking all text after the enacting clause and inserting the amended text of S. 3709 in its place.

Senator Lugar introduced the bill and offered a section-by-section analysis. The following amendments, in brief, were passed either by unanimous consent or voice vote without debate:

Senator Lugar introduced a manager's amendment, which contained new language in Title II related to the Additional Protocol ( S.Amdt. 5168 ; unanimous consent); Senator Obama introduced an amendment containing a statement of U.S. policy (which became Section 114) that any nuclear power reactor fuel reserve provided to the Government of India for use in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements ( S.Amdt. 5169 ; voice vote); Senator Harkin introduced an amendment requiring the President to determine, before executing his waiver authority, that India was supporting U.S. and international efforts to dissuade, sanction, and contain Iran's nuclear program ( S.Amdt. 5173 ; unanimous consent); Senator Bingaman introduced an amendment to add a reporting requirement to Section 108 (b) on the amount of uranium mined in India during the previous year; the amount of such uranium that has likely been used or allocated for the production of nuclear explosive devices; and the rate of production in India of fissile material for nuclear explosive devices and of nuclear explosive devices as well as an analysis as to whether imported uranium has affected the rate of production in India of nuclear explosive devices ( S.Amdt. 5179 ; unanimous consent); Senator Bingaman introduced an amendment to add a new Section in Title I (which became Section 115) requiring the Secretary of Energy to create a Cooperative Threat Reduction Program with India ( S.Amdt. 5180 ; unanimous consent).

Senator Lugar's amendment, S.Amdt. 5168 contained minor changes in Title I of S. 3709 as reported out of Committee. One potentially significant change was the deletion of a Sense of Congress on licensing policy in Section 106. In Title II, however, which contains the implementing legislation for the U.S. Additional Protocol, significant provisions were added. These included Section 202 on findings, Section 251 (3), and Sections 254, 261, 262 and 271-275. In his opening statement, Senator Lugar reported that "a compromise was reached between the Administration, the Senate Foreign Relations Committee, and those Senators who expressed concern about the IAEA Additional Protocol implementing legislation." These additional provisions appear to make explicit existing U.S. rights to exclude inspectors and certain kinds of inspection activities under the Additional Protocol. Several of the modifications address the use of environmental sampling, both for specific locations and for detecting anomalies in a wide-area mode.

Other amendments were introduced, debated, and defeated. These included the following:

Senator Bingaman introduced an amendment requiring a Presidential determination that the United States and India are taking specific steps to conclude a multilateral treaty on the cessation of fissile material for weapons before U.S. nuclear equipment or technology could be exported under the future agreement for cooperation and that no nuclear materials may be exported to India unless the President has determined that India has stopped producing fissile materials for weapons ( S.Amdt. 5174 ; Vote 26-74); Senator Dorgan introduced an amendment to add a declaration of U.S. policy to continue to support implementation of United Nations Security Council Resolution 1172 ( S.Amdt. 5178 ; Vote 27-71); Senator Ensign introduced an amendment to Title II of the bill related to the Additional Protocol that would have required any inspection equipment, materials and resources to have been purchased, owned, inspected, and controlled by the United States ( S.Amdt. 5181 ; Vote 27-71); Senator Dorgan introduced an amendment that would have required the President to determine, before executing his waiver authority, that India has committed to putting all electricity-producing nuclear reactors under safeguards, has undertaken an obligation not to proliferate nuclear weapons technology, has joined a legally-binding nuclear test moratorium; is verifiably reducing its nuclear weapons stockpile, and has undertaken an obligation to agree to ultimate disarmament ( S.Amdt. 5182 ; voice vote); Senator Feingold introduced an amendment that would have required the President to determine, before executing his waiver authority, that the scope and content of the cooperation agreement would not allow India to use U.S. technology, equipment or material in unsafe guarded facilities, would not result in India replicating U.S. technology nuclear fuel and would not facilitate the increased production by India of fissile material in unsafeguarded nuclear facilities ( S.Amdt. 5183 ; Vote 25-71); Senator Boxer introduced an amendment that would have required the President to determine, before he could execute his waiver authority, that India had halted military-to-military contacts with Iran ( S.Amdt. 5187 ; Vote 38-59).

Most of these amendments were characterized by Senators Lugar and Biden as "killer amendments." Senator Bingaman described his amendment as implementing a proposal by former Senator Nunn. Senator Dorgan's amendment supporting U.S. implementation of U.N. Security Council 1172 sought to reaffirm U.S. support for the steps endorsed by the U.N. Security Council following the 1998 Indian and Pakistani nuclear tests, including limits on those nuclear programs such as a ban on deployments, and fissile material production for weapons, as well as a commitment on all states' parts not to sell nuclear technology to India and Pakistan. Senator Dorgan's other amendment, S.Amdt. 5182 , was similar to Representative Barbara Lee's amendment to the House bill that was rejected by the House Rules Committee. That amendment attempted to commit India to undertake the same obligations as other nuclear weapon states under the NPT. Senator Feingold's amendment was similar to the one he introduced in Committee that was rejected. Although modified to address objections voiced in the mark-up, the amendment was described by Senator Lugar on the floor as requiring a certification that would have been "impossible to make." Senator Ensign's amendment was debated in closed session, apparently because of the potential need to discuss classified information relating to the protection of national security information during IAEA inspections under an Additional Protocol in the United States.

H.R. 5682 Conference Report

On December 7, 2006, conferees on H.R. 5682 filed Conference Report H.Rept. 109-721 . The bill essentially combines many of the provisions of both the House and Senate versions. Specific differences are highlighted in Table 1 , below. Of note, the Senate provisions to ban enrichment, reprocessing, and heavy water production cooperation with India (now Section 104. (d) (4)) and create an end-use monitoring program (now Section 104.(d) (5)) prevailed in the conference bill, as did Title II, which includes the implementing legislation of the U.S. Additional Protocol. The so-called Harkin amendment, which added a determination that India was fully and actively supporting U.S. and international efforts to contain, dissuade, and sanction Iran for its nuclear weapons program, did not remain as a determination, but became two reporting requirements: first, as a one-time report when the Section 123 agreement is submitted to Congress (now Section 104.(c)(2)(H)) and as an annual reporting requirement (now Section 104.(g)(2)(E)).

P.L. 109-401 Signing Statement

On December 18, 2006, President Bush signed the "Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006" into law ( P.L. 109-401 ). President Bush noted that the act "will strengthen the strategic relationship between the United States and India." In particular, President Bush stated that the executive branch would construe two sections of the bill as "advisory" only: policy statements in Section 103 and the restriction contained in Section 104 (d) (2) on transferring items to India that would not meet NSG guidelines. On the first, the President cited the Constitution's "commitment to the presidency of the authority to conduct the Nation's foreign affairs;" on the second, the President raised the question of whether the provision "unconstitutionally delegated legislative power to an international body." In other words, the President was questioning whether Congress were ceding authority to approve U.S. exports to the Nuclear Suppliers Group. However, U.S. officials, including Secretary of State Rice, have formally told Congress multiple times that the United States government would abide by NSG guidelines. The President's signing statement also noted that the executive branch would construe "provisions of the Act that mandate, regulate, or prohibit submission of information to the Congress, an international organization, or the public, such as sections 104, 109, 261, 271, 272, 273, 274, and 275, in a manner consistent with the President's constitutional authority to protect and control information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties." This could suggest that the executive branch might limit the scope of reporting required by Congress in those sections.

Additional Resources

CRS Report RL33016, U.S. Nuclear Cooperation with India: Issues for Congress , by [author name scrubbed].

CRS Report RL33292, India ' s Nuclear Separation Plan: Issues and Views , by [author name scrubbed].

CRS Report RL33072, U.S.-India Bilateral Agreements and " Global Partnership " , by [author name scrubbed].

CRS Report RS22474, Banning Fissile Material Production for Nuclear Weapons: Prospects for a Treaty (FMCT) , by [author name scrubbed].