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“HENRY J. HYDE UNITED STATES AND INDIA NUCLEAR COOPERATION PROMOTION ACT OF 2006--CONFERENCE REPORT” mentioning the U.S. Dept of State was published in the in the Senate section section on pages S11822-S11825 on Dec. 8, 2006.
The publication is reproduced in full below:
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.''
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.)
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 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.
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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.
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.
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