ACA got a copy of a U.S. proposal that’s to be discussed in an NSG meeting taking place today and tomorrow. The proposal text, along with Daryl Kimball’s commentary, is below.

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March 21, 2006

Colleagues:

In my email post earlier today, I noted that the NSG will hold a “consultative group” meeting beginning tomorrow (March 22-23) in Vienna, during which country reps are expected to discuss whether to put the U.S. proposal on the agenda for the May Plenary Meeting of the NSG.

The text of the proposal is appended below.

One of the most notable and troublesome features of the U.S. proposal is the weak and very ambiguous the language in section 2, which is ostensibly meant to outline what India must do in order to qualify for transfers of NSG trigger list items. In addition, section 4 would allow individual NSG member states to decide whether India is meeting these weak standards before they sell nuclear technology and materials (possibly including technologies the U.S. would be willing to sell) to India. Section 4 says in part:

Participating Governments may transfer trigger list items and/or related technology to the safeguarded civil nuclear facilities in India (a State not party, and never having been a party, to the NPT) as long as the participating Government intending to make the transfer is satisfied that India continues to fully meet all of the aforementioned nonproliferation and safeguards commitments, and all other requirements of the NSG Guidelines.

In essence, the administration is suggesting that we put the Russia’s and the France’s and the India’s of the world in charge of U.S. nonprolfieration policy. On the whole, arrangement would further erode rules-based efforts to curb the spread of nuclear weapons related technology.

– Daryl Kimball, executive director, Arms Control Association

———————–

Draft
Pre-Decisional

Statement on Civil Nuclear Cooperation with India

1. At the [blank] Plenary meeting on [blank] the Participating Governments of the Nuclear Suppliers Group agreed that they:

a. Desire to contribute to an effective non-proliferation regime, and to the widest possible implementation of the objectives of the Treaty on the Non-proliferation of Nuclear Weapons
b. Seek to limit the further spread of nuclear weapons
c. Wish to pursue mechanisms to affect positively the conduct of those outside the Treaty
d. Seek to promote international cooperation in the research, development and safe use of nuclear energy for peaceful purposes, and e. Recognize the promise of nuclear power in India as a clean source of energy for sustained economic growth and prosperity.

2. In this respect, Participating Governments have taken note of steps that India has taken as a contributing partner in the nonproliferation regime and they welcome India’s efforts with respect to the following commitments and actions:

a.Having publicly designated peaceful civil nuclear facilities which will be submitted to IAEA safeguards in perpetuity.
b. Having committed to continue its moratorium on nuclear testing, and to work with others towards achievement of a Fissile Material Cutoff Treaty.
c. Having committed to accept an Additional Protocol covering designated civil nuclear facilities.
d. Having committed to support international efforts to restrain the spread of sensitive nuclear technologies.
e. Having adopted a national export control system capable of effectively controlling transfers of multilaterally controlled nuclear and nuclear related material, equipment, and technology.
f. Having agreed to adhere formally to the Nuclear Suppliers Group Guidelines.

3. For these reasons, Participating Governments have therefore adopted the following policy on civil nuclear cooperation by Participating Governments with the peaceful safeguarded Indian civil nuclear power program.

4. Notwithstanding paragraphs 4(a), 4(b), and 4(c), of INFCIRC/254/Part 1 as revised, Participating Governments may transfer trigger list items and/or related technology to the safeguarded civil nuclear facilities in India (a State not party, and never having been a party, to the NPT) as long as the participating Government intending to make the transfer is satisfied that India continues to fully meet all of the aforementioned nonproliferation and safeguards commitments, and all other requirements of the NSG Guidelines.

5. Participating Governments, in accordance with Paragraph 4(d), will continue to strive for the earliest possible implementation of the policy referred to in paragraph 4(a).

6. The NSG Point of Contact is requested to submit this Statement to the IAEA DG with a request that he circulate it to all Member States.

The section of “this document”:http://www.indianembassy.org/newsite/press_release/2006/Mar/29.asp excerpted below contains the details about the facilities that are to be covered under the US-India nuclear cooperation agreement.

Asked at a “RANSAC”:http://www.ransac.org/ hill briefing last week why the list seemed incomplete, consultant to the State Department Ashley Tellis said that Washington will have the list within a matter of days.

I feel better now. Or something.

The relevant section of the agreement follows:

4. Taking the above into account, India, on the basis of reciprocal actions by the US, will adopt the following approach:

(i) Thermal Power Reactors: India will identify and offer for safeguards 14 thermal power reactors between 2006 and 2014. This will include the 4 presently safeguarded reactors (TAPS 1&2, RAPS 1&2) and in addition KK 1&2 that are under construction. 8 other PHWRs, each of a capacity of 220 MW, will also be offered. Phasing of specific thermal power reactors, being offered for safeguards would be indicated separately by India. Such an offer would, in effect, cover 14 out of the 22 thermal power reactors in operation or currently under construction to be placed under safeguards, and would raise the total installed Thermal Power capacity by MWs under safeguards from the present 19% to 65% by 2014.

(ii) Fast Breeder Reactors: India is not in a position to accept safeguards on the Prototype Fast Breeder Reactor (PFBR) and the Fast Breeder Test Reactor (FBTR), both located at Kalpakkam. The Fast Breeder Programme is at the R&D stage and its technology will take time to mature and reach an advanced stage of development.

(iii) Future Reactors: India has decided to place under safeguards all future civilian thermal power reactors and civilian breeder reactors, and the Government of India retains the sole right to determine such reactors as civilian.

(iv) Research Reactors: India will permanently shut down the CIRUS reactor, in 2010. It will also be prepared to shift the fuel core of the APSARA reactor that was purchased from France outside BARC [Bhabha Atomic Research Centre] and make the fuel core available to be placed under safeguards in 2010.

(v) Upstream facilities: The following upstream facilities would be identified and separated as civilian:

List of those specific facilities in the Nuclear Fuel Complex, which will be offered for safeguards by 2008 will be indicated separately.

The Heavy Water Production plants at Thal, Tuticorin and Hazira are proposed to be designated for civilian use between 2006-2009. We do not consider these plants as relevant for safeguards purposes.

(vi) Downstream facilities: The following downstream facilities would be identified and separated as civilian:

India is willing to accept safeguards in the `campaign’ mode after 2010 in respect of the Tarapur Power Reactor Fuel Reprocessing Plant.

The Tarapur and Rajasthan `Away From Reactors’ spent fuel storage pools would be made available for safeguards with appropriate phasing between 2006-2009.

vii) Research Facilities: India will declare the following facilities as
civilian:

(a) Tata Institute of Fundamental Research

(b) Variable Energy Cyclotron Centre

(c) Saha Institute of Nuclear Physics

(d) Institute for Plasma Research

(e) Institute of Mathematics Sciences

(f) Institute of Physics

(g) Tata Memorial Centre

(h) Board of Radiation and Isotope Technology

(i) Harish Chandra Research Institute

These facilities are safeguards-irrelevant. It is our expectation that they will play a prominent role in international cooperation.

*_Jeffrey adds:* This is the part where I gripe that I posted a link to the same document the day before. I move to Cambridge and the synergy goes to all to pieces_.

*_Paul Replies:* This is the part where I point out that the breakdown in synergy is attributable to technical, not geographic, factors. Your link was broken last night_.

Following up on Jeffrey’s “earlier post”:http://www.armscontrolwonk.com/998/indian-separation-plan , the text of the US-India Nuclear Atrocity tabled in the Indian Parliament 7 March can be found “here”:http://www.indianembassy.org/newsite/press_release/2006/Mar/29.asp. This State Department “fact sheet”:http://newdelhi.usembassy.gov/uploads/images/BmUr9WSWpctdFn_Li5TsyQ/civnucfactsheet.pdf is also worth reading.

More items of interest:

*Wade Boese and Daryl Kimball wrote “a rebuttal”:http://www.armscontrol.org/pressroom/2006/20060309_India_Critics_Rebut_WH.asp to “this White House fact sheet”:http://www.whitehouse.gov/news/releases/2006/03/20060308-3.html about the deal. They obviously have strong stomachs.

*For those who think that India has always abided by its international agreements, check out “these documents”:http://www.armscontrol.org/country/india_pakistan/Historic_Documents_India_Nuclear_Test.asp regarding US-India nuclear cooperation back in the day. Leonard Weiss spoke about them at an “ACA event”:http://www.armscontrol.org/events/200602015_Indian_Nuclear_Cooperation.asp last month.

*”This report”:http://news.yahoo.com/s/nm/20060311/ts_nm/nuclear_india_usa_dc_5;_ylt=AmUE272QwHXwQ.xYJZWWtOFA7AkB;_ylu=X3oDMTBiMW04NW9mBHNlYwMlJVRPUCUl from Carol Giacomo of Reuters has the Indian Embassy’s reaction to the “ISIS report”:http://www.isis-online.org/publications/southasia/indianprocurement.pdf that Jeffrey “wrote about”:http://www.armscontrolwonk.com/995/tender-mercies-isis-on-india on Friday.

*Dave Ruppe from GSN took a “behind-the-scenes look”:http://www.nti.org/d_newswire/issues/2006_3_8.html#58072CE3 at the deal’s origins last week.

*Note:* If both John Bolton and employees of the Arms Control Association think something’s a bad idea, you might want to rethink it.

A copy of the administration’s legislative proposal regarding the US-India nuclear agreement landed on my desk.

Basically, the administration wants Congress to change the Atomic Energy Act so the US and India can conclude a nuclear cooperation agreement.

Here’s the text:

Authority relating to U.S.-India nuclear cooperation.

This provision facilitates civil nuclear cooperation with India by authorizing the President to waive certain requirements in order to conclude a nuclear cooperation agreement with India under the Atomic Energy Act (AEA).

The waiver is dependent on a Presidential determination that India has taken steps to fulfill the July 18, 2005 Joint Statement of the President and India Prime Minister Singh. These understanding call on India to separate its civil nuclear program under International Atomic Energy safeguards; and to adhere to the Missile Technology Control Regime and Nuclear Suppliers Group guidelines.

By authorizing exemption from certain AEA requirements, the provision authorizes the President to submit a proposed nuclear cooperation agreement to Congress under the Congressional review procedures of sections 123(b) and 123(d) of the AEA that would allow for it to enter into force after the expiration of a 90-continuous day period.

Section XX. Waiver Authority –

(a) Notwithstanding any other provision of law, if the President makes the determinations described in subsection (b), he may:

(1) exempt a proposed agreement for cooperation with India (arranged pursuant to section 123 of the Atomic Energy Act, as amended) from the requirement in section 123(a)(2) of the Atomic Energy Act, and such agreement for cooperation shall be subject to the same congressional review procedures under sections 123(b) and 123(d) as an agreement for cooperation that has not been exempted from any requirement contained in section 123(a);

(2) waive the application of section 128 of the Atomic Energy Act with respect to India; and

(3) waive the application of any section under section 129 of the Atomic Energy Act with respect to India.

(b) The determination referred to in subsection (a) is a determination by the President that the following actions have occurred:

(1) India has provided the United States and the IAEA with a credible plan to separate civil and military facilities, materials, and programs, and has filed a declaration regarding its civil facilities with the IAEA;

(2) 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 declared in the plan described in paragraph (1) above;

(3) India and the IAEA are making satisfactory progress toward implementing an Additional Protocol that would apply to India civil nuclear program;

(4) India is working with the United States for the conclusion of a multilateral Fissile Material Cutoff Treaty;

(5) India is supporting international efforts to prevent the spread of enrichment and reprocessing technology;

(6) India is ensuring that the necessary steps are being taken to secure nuclear materials and technology through the application of comprehensive export control legislation and regulations, and through harmonization and adherence to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) Guidelines; and

(7) Supply to India by the United States under an agreement for cooperation arranged pursuant to section 123 of the Atomic Energy Act is consistent with U.S. participation in the Nuclear Suppliers Group.

(c) Any determination pursuant to subsection (b) shall be reported to the Committee on Foreign Relations of the Senate and the Committee on International Relations in the House of Representatives, and such report shall describe the basis for the President’s determination.

(d) A determination under subsection (b) shall not be effective if the President determines that India has detonated a nuclear explosive device after the date of enactment of this Act.

Below is ACA Executive Director Daryl Kimball’s slightly-edited analysis of the proposal:

In essence, the proposal asks Congress to waive/exempt India from the requirements in the Atomic Energy Act [section 123(a)(2)] that currently restrict trade with states that do not accept full scope safeguards. Section 123 of the AEA (42 USC 2153) requires an agreement for cooperation as a prerequisite for significant nuclear cooperation with any nation. The United States has about 40 agreements for cooperation in place now, and had an agreement with India from 1963 to 1993. The proposal also would exempt India from other sections (128 and 129) of the AEA relating to nonproliferation requirements and sanctions.

However– AND THIS IS IMPORTANT –the President’s legislative proposal would treat the agreement for nuclear cooperation with India as a “non exempted” agreement, thereby requiring joint resolution of Congressional disapproval within 90 legislative days to block approval of the agreement. That’s tough to do. An “exempted” agreement ordinarily would not become effective unless both chambers of Congress approve the agreement, which means it would be easier to block and it would give Congress much more leverage in setting the terms of trade and termination of trade with India.

Furthermore, it would establish an extremely weak — almost laughable — set of required Presidential determinations that India is fulfilling its July 18, 2005 Joint Statement pledges.

The administration apparently wants the legislative proposal dealt with as a free-standing bill.

Finally, the administration is apparently telling members of Congress they must act before May, when the administration hopes to bring to the Nuclear Suppliers Group’s next meeting a proposal to exempt India from the NSG’s current rule that bars nuclear trade with states (like India) that do not accept full-scope safeguards.

The bottom line: There is no rush … it is imprudent to change 30 years of nonproliferation law and practice for an unprecedented agreement of nuclear cooperation that has not even been negotiated. (And those negotiations have not even started and will take months if not a year or more to complete.) Given that the proposed law would not take effect until India has negotiated its basic safeguards agreement with the IAEA, it could not enter into force for many months and perhaps much longer.

Congress should not make any changes in U.S. nonproliferation law that would exempt India before it the administration and the Indian government negotiate and deliver their final agreement for nuclear cooperation. The NSG should not consider any proposal before and unless the U.S. changes its laws and negotiates an agreement for nuclear cooperation with India.