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.