[Congressional Record (Bound Edition), Volume 152 (2006), Part 18]
[Senate]
[Pages 23728-23731]
[From the U.S. 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

[[Page 23729]]

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.''
  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

[[Page 23730]]

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 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

[[Page 23731]]

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.
  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.

                          ____________________