[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[Senate]
[Pages S11822-S11825]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HENRY J. HYDE UNITED STATES AND INDIA NUCLEAR COOPERATION PROMOTION ACT
OF 2006--CONFERENCE REPORT
Mr. FRIST. I ask unanimous consent that the Senate proceed to the
immediate consideration of the conference report to accompany H.R.
5682, the United States-India nuclear agreement, that the conference
report be agreed to and the motion to reconsider be laid upon the
table.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LUGAR. Mr. President, I wish to make an important note regarding
a provision in the conference agreement on H.R. 5682, the Henry J. Hyde
United States-India Peaceful Atomic Energy Cooperation Act of 2006.
The conferees on this legislation believe that one of the most
important aspects of renewed nuclear cooperation with India will be the
new safeguards agreement it enters into with the International Atomic
Energy Agency, IAEA, that would apply to its expanded list of declared
civilian nuclear sites, facilities, and locations.
The administration's original legislation concerning India, which I
introduced as S. 2429 on March 16, 2006, stated with regard to this
matter that the President had to determine that ``an agreement has
entered into force between India and the IAEA requiring the application
of safeguards in accordance with IAEA practices to India's civil
nuclear facilities.''
As a part of the committee's consideration of the administration's
proposal, I asked a number of questions for the record regarding this
new safeguards agreement. Secretary Rice stated in response to a
question asked in April of this year regarding India's new safeguards
agreement that:
This Initiative will only allow for nuclear cooperation to
proceed with civil facilities and programs that are
safeguarded by the IAEA. The Government of India has agreed
that these safeguards will be in place in perpetuity. Under
the Initiative, India has committed to place all its current
and future civil nuclear facilities under IAEA safeguards,
including monitoring and inspections. These procedures are
designed to detect--and thereby prevent--the diversion to
military use of any nuclear materials, technologies, or
equipment provided to India's civil nuclear facilities. India
has also committed to sign and adhere to an Additional
Protocol, which provides for even broader IAEA access to
facilities and information regarding nuclear related
activities.
In March of this year, Senator Biden asked Under Secretaries Robert
Joseph and Nicholas Burns how they interpreted certain Indian
statements regarding their new safeguards agreement, specifically
India's contention that it will be ``India-specific.'' They stated:
``It will be incumbent on India to clarify what it means by
`India-specific' safeguards in the context of its
negotiations with the IAEA. In our view, the safeguards
agreement for India will be unique to India because India
presents a unique set of circumstances. India has agreed to
place all its civil nuclear facilities under safeguards in a
phased manner, along with future civil facilities, but India
is not an NPT party and will have non-civil facilities and
material outside of safeguards. However, there is an accepted
IAEA framework for safeguards (INFCIRC/66) that pre-dates the
NPT and is suited to safeguarding material in a non-NPT party
without full-scope safeguards. In its separation plan, India
has committed to safeguards in perpetuity.''
In November 2005, I asked Under Secretary Joseph what kinds of
safeguards will be applied to India's declared civil sites, facilities,
and locations. He responded that:
``Safeguards agreements are modeled after INFCIRC/153 (the
NPT safeguards agreement) or INFCIRC/66 (the Agency's
safeguards system predating the NPT). India will not likely
sign a safeguards agreement based strictly on INFCIRC/153, as
this would require safeguards on India's nuclear weapons
program. NPT-acknowledged nuclear weapon states have so-
called `voluntary' safeguards agreements that draw on
INFCIRC/153 language, but do not obligate the IAEA to
actually apply safeguards and do allow for the removal of
facilities or material from safeguards. We heard from other
states at the recent NSG meeting that they would not support
a ``voluntary offer'' arrangement as, in their view, it would
be tantamount to granting de facto nuclear weapon state
status to India. We have similarly indicated to India that we
would not view such an arrangement as defensible from a
nonproliferation standpoint. We therefore believe that the
logical approach to formulating a safeguards agreement for
India is to use INFCIRC/66, which is currently used at
India's four safeguarded reactors. For the most part,
INFCIRC/66 and INFCIRC/153 agreements result in very similar
technical measures actually applied at nuclear facilities.''
In view of these responses, and since S. 2429 contained similar
language, the Senate's India bill, S. 3709, specified with regard to
India's safeguards agreement, and the determination the President had
to make regarding it, that ``an agreement between India and the IAEA
requiring the application of safeguards in perpetuity in accordance
with IAEA standards, principles, and practices to civil nuclear
facilities, programs, and materials . . . has entered into force and
the text of such agreement has been made available to the appropriate
congressional committees.''
The conference agreement before us today does not include the
language from the S. 3709 regarding this element of the Presidential
determination required to use the waiver authority we grant. Rather,
the conference agreement provides in section 104(b)(2) that ``India and
the IAEA have concluded all legal steps required prior to signature by
the parties of an agreement requiring the application of IAEA
safeguards in perpetuity in accordance with IAEA standards, principles,
and practices, (including IAEA Board of Governors Document GOV/1621
(1973)) to India's civil nuclear facilities, materials, and programs .
. . including materials used in or produced through the use of India's
civil nuclear facilities.''
[[Page S11823]]
The conferees were assured by administration officials that the
language referring to ``all legal steps'' includes approval by the IAEA
Board of Governors. The conferees understand that safeguards agreements
are signed after Board of Governors' approval, but that entry into
force can take additional time. Since Board of Governors' approval
would mean that the text of the safeguards agreement would be final,
and it is unlikely that either the IAEA or India would sign an
agreement that is not final, conferees agreed to this language. The
conferees' intent was to secure as final a text as possible for
congressional review since the text of the new Indian safeguards
agreement would be submitted to Congress as a part of the Presidential
determination and waiver authority contained in section 104 of this
conference agreement. It is the view of the conferees that this
language means that Congress will receive the final text of such an
agreement as a part of the President's determination.
(At the request of Mr. Reid, the following statement was ordered to
be printed in the Record.)
Mr. BIDEN. The Senate will shortly take a momentous step in
U.S.-India relations by passing the conference report on H.R. 5682, the
Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation
Act of 2006. Enactment of this legislation brings us much closer to the
day when India will resume peaceful nuclear commerce, despite its
status as a state that has nuclear weapons and has never been a state
party to the Nuclear Non-Proliferation Treaty. It will help bring India
into the global nuclear nonproliferation system. It also helps to
remove a major irritant in the relations between our two countries.
This bill is a tremendous victory for U.S.-India relations. And it
increases the prospect for stability and progress in South Asia and the
rest of the world.
It has become cliche to speak of the U.S.-India relationship as a
bond between the world's oldest democracy and the world's largest
democracy--but this cliche is also a fact. Shared political values are
the foundation for our relationship, a firm belief in the dignity of
man and the consent of the governed.
Senator Lugar and I yield to no one in our commitment to nuclear
nonproliferation. We have taken great care, in this legislation, to
protect the role of Congress and of the international institutions that
enforce nuclear nonproliferation.
This legislation was the result of hard compromises--compromises
between our two countries and between Congress and the executive
branch. The end result, however, was overwhelming bipartisan support,
in both the House and the Senate. That level of broad, solid,
bipartisan buy-in was absolutely essential when crafting legislation
with such long-term impact on vital American interests.
I want to pay special tribute tonight to the chairman of the Senate
Foreign Relations Committee, Senator Lugar of Indiana, for his
tremendous contribution to securing that broad, bipartisan consensus.
The administration originally proposed legislation that would have
effectively taken away the power of Congress to review an agreement for
nuclear cooperation with India, and Senator Lugar was under great
pressure to accept that proposal. He did not do that. Instead, he held
four hearings--three open and one closed--that allowed all sides to
express their views and that enabled Senators from both parties to
raise their concerns with the approval procedure that the
administration had proposed. Then he and I worked to craft a Senate
bill that passed by a vote of 16-2 in committee and 85-12 on the floor
of the Senate.
Senator Lugar performed a signal service to our country when he added
title II to this legislation, the implementing legislation for the U.S.
Additional Protocol with the International Atomic Energy Agency. It is
fitting that this legislation has been combined with the India nuclear
bill, since part of the nuclear deal is for India to negotiate its own
Additional Protocol with the IAEA. It will also be a notable benefit to
U.S. nuclear nonproliferation policy when the United States finally
ratifies its Additional Protocol, giving our country greater
credibility as it presses other countries to allow the IAEA to increase
its inspections of their nuclear programs. Ratification of the U.S.-
IAEA Additional Protocol was long delayed, and Senator Lugar's
leadership on this issue was absolutely vital to this final, successful
conclusion.
In conference with the House of Representatives, Senator Lugar and I
once again worked for a measure that could gain broad support from the
Senate. We worked with the House conferees to craft a bill that
embodied the best ideas from each house of Congress. At the same time,
we worked with the Administration to reach agreement on a wide range of
issues, without sacrificing the principles that each house had written
into its legislation. We and the other conferees chose substance over
rhetoric. The result is a conference report that will command the same
broad, bipartisan support today that was demonstrated in the Senate 3
weeks ago.
I would like also to acknowledge the staff members who have
contributed to the success of this legislation. On the Senate side, the
Foreign Relations Committee was most ably served by Ken Myers III,
Thomas Moore, Edward Levine and Brian McKeon. Mr. Stephen Rademaker of
the majority leader's staff was also an important contributor to our
efforts. On the House side, the conferees were most ably served by
Douglas Seay, David Fite and David Abramowitz, among others.
The U.S.-India agreement is much more than just a nuclear deal. I
believe historians will see this as part of a dramatic and positive
departure in the U.S.-India relationship that was begun by President
Clinton and continued by President Bush.
In a time when relationships between states are critically important
in shaping the world in which we live, no relationship is more
important than the one we're building with India. There is still much
to be done in India, as a stable and secure India is very much in
America's national interest. We should work to help India increase its
energy production, combat terrorism, and guard against epidemics of
infectious diseases. We should help both India and Pakistan to ease
tensions between their countries and, someday, to walk back from the
nuclear precipice. And India should continue its progress toward the
front rank of world leaders, and especially of leaders in combating the
proliferation of nuclear, chemical and biological weapons. Enactment of
this bill today helps both countries to keep moving on the path of
cooperation for a better world.
In conclusion, I would like to turn to an issue raised recently by
some experts, whether the legislation before us, by citing a particular
IAEA document, might undermine the principle of perpetuity of
safeguards in India. My view is that the IAEA document makes a real
contribution to our understanding of safeguards perpetuity.
The document cited by this legislation appears in section 104(b)(2),
the second determination that the President will have to make when
submitting a U.S.-India agreement for nuclear cooperation to the
Congress. It is an IAEA Board of Governors memo cited as GOV/1621 of 20
August 1973. We have been given permission to publish this document, so
I will ask that it be printed in the Record at the end of these
remarks.
The Board of Governors memo makes clear that safeguards on nuclear
material will extend until that material no longer has any possible
nuclear weapons use, or until it is exchanged with an equal amount of
previously unsafeguarded material, or until it leaves the country--in
which case safeguards may continue elsewhere. In other words, if you
move some imported fuel or equipment to a new location, that location
becomes subject to safeguards.
The memo also makes clear that safeguards on ``nuclear material,
equipment, facilities or non-nuclear material'' supplied to a nuclear
facility will apply as well to fissile material ``produced, processed
or used in or in connection with'' a safeguarded facility. In other
words, any fissile material produced by a safeguarded facility becomes
subject to safeguards even after it leaves that facility. Until that
output no longer has any possible nuclear weapons use, safeguards
follow it; that is a real example of perpetuity of sanctions.
At the same time, perpetuity does not mean that a facility will be
subject
[[Page S11824]]
to safeguards until the end of time. A facility can be decommissioned
so that it, too, no longer has any possible nuclear weapons use. Or, if
the only reason for safeguards is that the facility has imported
equipment or material, removal of all such equipment or material from
the facility could render it eligible for removal from safeguards.
Thus, India's reprocessing plant is safeguarded when it handles spent
fuel from imported uranium, but not when India is using it to reprocess
spent fuel made from domestic uranium. That is the way safeguards have
worked for years in India.
The Government of India has announced that eight more of its existing
power reactors will be declared as civil and opened to IAEA inspection.
India would gain great credibility if it were to let those reactors be
inspected even if they use domestic nuclear fuel. Indian officials have
suggested, however, that they may insist upon the right to remove those
reactors from safeguards if foreign fuel supplies are cut off, and the
safeguards agreement that India negotiates with the IAEA may allow for
that. There is precedent for such an arrangement, in states that do not
have full-scope safeguards, and it would be up to the IAEA Board of
Governors, of which the United States is a member, to decide whether
that arrangement was permissible in this case. It would be up to
Congress and the Nuclear Suppliers Group, of course, to consider
whether that sort of safeguards arrangement was sufficient to warrant
authorizing peaceful nuclear commerce with India. And it would be up to
the executive branch to determine whether to authorize a particular
export to India, in light of the safeguards that would govern the
facility for which the export was requested.
India has also said that many new power reactors will be put under
IAEA safeguards. If those reactors are foreign-built, like the Tarapur
reactor, there will be no way that they can be withdrawn from
safeguards unless they are decommissioned. If they are domestic designs
but use some foreign equipment, there will be no way to withdraw them
from safeguards without first removing the foreign equipment. And if
foreign equipment should be used in one of the eight domestically built
reactors that are put under safeguards, then that equipment, too, would
have to be removed before that reactor could be removed from
safeguards.
As a matter of principle, then, perpetuity in safeguards applies more
to material and equipment than it does to a whole facility, unless that
facility is foreign-built. In practice, however, the only reactors that
India might pull out of its safeguards regime would be the eight newly-
safeguarded ones, and I believe that the only time that this might
occur would be if India were to come under sanctions because of
improper nuclear activities or weapons proliferation. In such a case,
the regime for nuclear cooperation with India would likely be
collapsing anyway.
The material follows.
SAFEGUARDS
(b) The Formulation of Certain Provisions in Agreements Under the
Agency's Safeguards System (1965, as Provisionally extended in 1966 and
1968)
Memorandum by the Director General
(1) A substantial number of Governors have urged that there
should be a greater degree of standardization than in the
past with respect to the duration and termination of such
agreements as may henceforth be concluded under the Agency's
Safeguards System (1965, as Provisionally Extended in 1966
and 1968) for the application of safeguards in connection
with nuclear material, equipment, facilities or non-nuclear
material supplied to States by third parties. To achieve
this, it is recommended that the following two concepts
should be reflected in these agreements:
(a) That the duration of the agreement should be related to
the period of actual use of the items in the recipient State;
and
(b) That the provisions for terminating the agreement
should be formulated in such a way that the rights and
obligations of the parties continue to apply in connection
with supplied nuclear material and with special fissionable
material produced, processed or used in or in connection with
supplied nuclear material, equipment, facilities or non-
nuclear material, until such time as the Agency has
terminated the application of safeguards thereto, in
accordance with the provisions of paragraph 26 or 27 of the
Agency's Safeguards System.
A short exposition with respect to the application of these
concepts is annexed hereto.
(2) The proposed standardization would appear likely to
facilitate the uniform application of safeguards measures. It
is furthermore to be noted that the combined operation of the
two concepts would be consistent with the application of the
general principle embodied in paragraph 16 of the Agency's
Safeguards System.
REQUESTED ACTION BY THE BOARD
(3) In bringing this matter to the Board's attention, the
Director General seeks the views of the Board as to whether
it concurs with the two concepts set out in paragraph 1
above.
____
ANNEX
(1) In the case of receipt by a State of source or special
fissionable material, equipment, facilities or non-nuclear
material from a supplier outside that State, the duration of
the relevant agreement under the Agency's Safeguards System
would be related to the actual use in the recipient State of
the material or items supplied. This may be accomplished by
requiring, in accordance with present practice, that the
material or items supplied be listed in the inventory called
for by the agreement.
(2) The primary effect of termination of the agreement,
either by act of the parties or effluxion of time, would be
that no further supplied nuclear material, equipment,
facilities or non-nuclear material could be added to the
inventory. On the other hand, the rights and obligations of
the parties, as provided for in the agreement, would continue
to apply in connection with any supplied material or items
and with any special fissionable material produced, processed
or used in or in connection with any supplied material or
items which had been included in the inventory, until such
material or items had been removed from the inventory.
(3) With respect to nuclear material, conditions for
removal are those set out in paragraph 26 or 27 of the
Agency's Safeguards System; with respect to equipment,
facilities and non-nuclear material, conditions for removal
could be based on paragraph 26. A number of agreements
already concluded have prescribed such conditions in part, by
providing for deletion from the inventory of nuclear
material, equipment and facilities which are returned to the
supplying State or transferred (under safeguards) to a third
State. The additional provisions contemplated would stipulate
that items or non-nuclear material could be removed from the
purview of the agreement if they had been consumed, were no
longer usable for any nuclear activity relevant from the
point of view of safeguards or had become practicably
irrecoverable.
(4) The effect of reflecting the two concepts in agreements
would be that special fissionable material which had been
produced, processed or used in or in connection with supplied
material or items before they were removed from the scope of
the agreement, would remain or be listed in the inventory,
and such special fissionable material, together with any
supplied nuclear material remaining in the inventory, would
be subject to safeguards until the Agency had terminated
safeguards on that special fissionable and nuclear material
in accordance with the provisions of the Agency's Safeguards
System. Thus, the actual termination of the operation of the
provisions of the agreement would take place only when
everything had been removed from the inventory.
Mr. LUGAR. Mr. President, today the Senate passes H.R. 5682, the
Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation
Act.
This agreement is the most important strategic diplomatic initiative
undertaken by President Bush. By concluding this pact and the far-
reaching set of cooperative agreements that accompany it, the President
has embraced a long-term outlook that seeks to enhance the core
strength of our foreign policy in a way that will give us new
diplomatic options and improve global stability.
The Committee on Foreign Relations undertook an extensive review of
this agreement. We held 4 public hearings with testimony from 17
witnesses, including Secretary of State Condoleezza Rice. We received a
classified briefing from Under Secretaries of State Nick Burns and Bob
Joseph. Numerous briefings were held for staff with experts from the
Congressional Research Service, the State Department, and the National
Security Council. I submitted more than 170 written questions for the
record to the Department of State on details of the agreement and
posted the answers on my web site.
The agreement allows India to receive nuclear fuel, technology, and
reactors from the United States--benefits that were previously denied
to India because of its status outside the Nuclear Non-Proliferation
Treaty, (NPT). This pact can be a lasting incentive for India to
abstain from further nuclear weapons tests and to cooperate closely
with the United States in stopping proliferation, and our legislation
further strengthens this situation.
[[Page S11825]]
The conference agreement before us is an important step toward
implementing the nuclear agreement with India, but we should understand
that it is not the final step. This legislation sets the rules for
subsequent Congressional consideration of a so-called 123 agreement
between the United States and India. A 123 agreement is the term for an
agreement for civil nuclear cooperation arranged pursuant to the
conditions outlined in section 123 of the Atomic Energy Act of 1954.
I am pleased to note that the conference agreement does not restrict
nor does it predetermine congressional action on the forthcoming 123
agreement. Unlike the administration's original legislative proposal,
this bill preserves congressional prerogatives with regard to
consideration of a future 123 agreement. Under the administration's
original proposal, the 123 agreement would have entered into force 90
days after submission unless both Houses of Congress voted against it
and with majorities that could overcome a likely Presidential veto. I
am pleased the administration changed course on this matter and agreed
to submit the 123 agreement with India to Congress under existing
procedures in the Atomic Energy Act. This means that both the House and
the Senate must cast a positive vote of support before the 123
agreement can enter into force. In my view, this better protects
Congress's role in the process and ensures congressional views will be
taken into consideration. In addition, it does not limit our actions to
a single ``no'' vote, which could have severe consequences for United
States-India relations. It would be particularly risky if that were the
only course available to Congress, no matter what its concerns may be.
Title II of this conference agreement contains legislation on the
U.S. Additional Protocol to its safeguards agreement with the
International Atomic Energy Agency AEA. President Bush called on the
Senate to ratify this important agreement on February 11, 2004, and the
Senate did so on March 31, 2004. This conference agreement contains
important implementing provisions for our Additional Protocol that the
Senate Committee on Foreign Relations has been working on for more than
2 years. This legislative measure is critical because our Additional
Protocol is not a self-executing agreement, and passage of implementing
legislation completes Congressional action and permits the agreement to
come into force. Our action today will allow the President to complete
U.S. ratification and make this Nation a party to this important IAEA
safeguards measure. U.S. ratification and implementation of the
Additional Protocol will give Secretary Rice and our representative to
the IAEA in Vienna, Austria, an important diplomatic tool in the battle
against proliferation as we maintain our longstanding leadership and
support for the IAEA safeguards system. Our Additional Protocol is one
part of that support, just like our annual voluntary contributions to
the IAEA, and they involve significant congressional oversight and
involvement. Approval of this legislation today is good news because it
shows that Congress supports the critical nonproliferation work of the
IAEA.
I thank Senator Biden for his close cooperation on developing this
conference agreement. I thank our House colleagues, Chairman Hyde and
Ranking Member Lantos, for their close cooperation and hard work.
Together, we have constructed a law that allows the United States to
seize an important strategic opportunity while ensuring a strong
congressional oversight role, reinforcing U.S. nonproliferation efforts
and maintaining our responsibilities under the NPT. I also want to
thank all members of the Foreign Relations Committee for their support.
Mr. BYRD. Mr. President, the Senate is set to give rubberstamp
approval to legislation that would waive the most important parts of
our nuclear nonproliferation laws, but only with respect to India. This
so-called U.S.-India nuclear cooperation agreement is a mistake, and
our Nation's efforts to draw a line in the sand against further
proliferation of nuclear materials and technology may suffer as a
result.
This agreement signals the willingness of the United States to look
the other way when it comes to compliance with the Nuclear Non-
Proliferation Treaty. At a time when nuclear weapons programs in North
Korea and Iran are front-page news, the United States should not be
giving its blessing to any nuclear weapons program that is not in one
hundred percent compliance with all nonproliferation treaties. It is
especially galling that the only thing the United States appears to be
getting from this agreement is a vague assurance of improved relations.
That just does not sounds like a good deal to me.
India is a strategically important country, and the influence of the
world's most populous democracy is expected to increase in the coming
years. Closer relations between the United States and India is a worthy
goal. However, the nuclear cooperation agreement before the Senate is a
bad deal for the United States, and I will not support it.
____________________