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Strengthening Congressional Oversight of 123 Agreements
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Volume 7, Issue 8, July 2, 2015

While most of the recent conversation about nuclear nonproliferation in Congress has focused on the negotiations in Vienna on a verifiable, long-term comprehensive nuclear deal to block Iran's pathways to nuclear weapons, lawmakers are also considering another lower-profile, but nonetheless consequential, civilian nuclear cooperation agreement with China.

This "123 agreement," named after Section 123 of the 1954 Atomic Energy Act, sets the terms for sharing U.S. peaceful nuclear energy technology, equipment, and materials with China. 123 agreements ensure that U.S. civil nuclear cooperation with other countries conforms to U.S. export control laws, meets Nuclear Regulatory Commission licensing requirements, meets the guidelines of the Nuclear Suppliers Group, and is used exclusively for peaceful purposes and not the development of nuclear weapons.

The administration submitted the proposed 123 agreement with China on April 21. U.S. law provides Congress the opportunity to review a nuclear cooperation agreement for 90 days of continuous session. If Congress does not pass a resolution disapproving the agreement before the end of this period, the agreement may enter into force.

While the administration argues the China agreement will advance the nonproliferation and other foreign policy interests of the United States, Congress should closely scrutinize the deal to ensure that it contains appropriate nonproliferation safeguards. 

Most importantly, as Congress reviews the agreement and prepares to consider a new agreement with South Korea--and potentially other agreements in the near future--Congress should consider strengthening the nonproliferation standards and procedures for congressional review of 123 agreements mandated by the 1954 Atomic Energy Act, which have not been revisited since 1978.

123 Agreements and U.S. Nonproliferation Policy

Since the beginning of the nuclear age, efforts to exploit nuclear technology for energy and for profit have complicated the task of reducing the nuclear weapons threat.

The United States has appropriately sought to deny the transfer of sensitive nuclear technologies--particularly enrichment and reprocessing technologies--to states that do not already possess the technology through the terms of our nuclear cooperation agreements.

After the Indian test explosion in 1974, Congress amended the Atomic Energy Act in 1978 to mandate tougher bulwarks against the diversion of U.S. nuclear assistance for military uses. The amendment put in place nine new provisions, including the requirement that recipients of U.S. civil nuclear cooperation have in place a full scope of safeguards. The Atomic Energy Act has not been updated since.

Some members of Congress have argued that the Obama administration's policy on nuclear cooperation agreements is "inconsistent" because it does not require that all states foreswear enrichment and reprocessing, which some have dubbed the "Gold Standard." 

The so-called "Gold Standard" was enshrined in the recent 123 agreements with the United Arab Emirates and Taiwan, and is a useful addition to the global nonproliferation regime, complementing other U.S. efforts to prevent the spread of enrichment and reprocessing technology. 

The United States should seek the inclusion of a legally-binding no-enrichment and reprocessing commitment in new agreements and agreements up for renewal with countries that do not already have these capabilities. However, securing such a commitment will not be possible in all cases, in part because sovereign states are extremely reluctant to forego future technology and commercial options. 

Yet, Congress could consider adjusting the review procedures for 123 agreements that do not include commitments to forego enrichment and reprocessing (or other key standard such as adherence to the tougher International Atomic Energy Agency (IAEA) safeguards under the terms of the additional protocol) so they are subject to an affirmative vote of approval.

The China Agreement

The current 30-year U.S. nuclear cooperation agreement with China entered into force in 1985, but implementation did not begin until 1998 because of certification requirements established by Congress. The new agreement would be another 30-year deal and replace the existing agreement that is set to expire at the end of this year. 

Overall, China's nonproliferation record has improved significantly since the 1980s and 1990s. For example, China has joined the nuclear Nonproliferation Treaty (NPT) and the Nuclear Suppliers Group. It has put its civilian reactors under safeguards and increased cooperation with the United States on nuclear material security. In addition, Beijing has curtailed the transfer of technologies and information that have assisted Pakistan's nuclear weapons program and Iran's nuclear program. 

Nonetheless, concerns remain. 

The Nonproliferation Assessment Statement (NPAS) prepared by the U.S. State Department about the 123 agreement, raises concerns about the potential Chinese misuse of civil nuclear technology for military purposes, proliferation of dual-use materials and technologies involving Chinese entities, and China's provision to Pakistan of additional nuclear reactors, which is inconsistent with the Chinese commitments made when it joined the Nuclear Suppliers Group in 2004.

In addition, some have objected to a provision in the agreement granting each party "advance consent" to reprocess U.S.-obligated nuclear material. This kind of permission, which is not bestowed in the current agreement, has been included in 123 agreements with India and the European Atomic Energy Community (Euratom). China is planning to build commercial reprocessing facilities to reprocess much of its spent fuel domestically.

However, President Barack Obama noted in a March 26, 2012 speech in South Korea that the world "simply can't go on accumulating huge amounts of the very material, like separated plutonium, that we're trying to keep away from terrorists." It's not clear how providing China with advance consent to reprocessing will reduce global stocks of separated plutonium.

The administration argues the economic, diplomatic, and environmental benefits of the agreement merit continuing nuclear cooperation with China despite ongoing nonproliferation concerns. They point to enhanced features in the new agreement that go beyond the current deal, especially in the area of preventing the diversion of civil nuclear technology and material for military use. They note that any reprocessing of U.S. obligated material would require a future agreement on "arrangements and procedures" and could take place only at facilities that are under or eligible for IAEA safeguards. Rejecting the deal, they say, will leave the United States in a weaker position to influence China's nonproliferation behavior

If Congress is concerned about the nonproliferation risks of nuclear cooperation with China, there are steps it can take to ensure effective oversight of cooperation. 

For example, lawmakers could require regular reports from the administration about China's adherence to the deal and whether it is making progress on strengthening export controls and cracking down on entities engaged in proliferating dual-use goods and technologies.

In addition, the agreement notes that the parties "shall take account into account the need to avoid contributing to the risks of nuclear proliferation...and the importance of balancing supply and demand, including demand for reasonable working stocks for civil nuclear operations." If Congress is concerned about the possibility of Chinese reprocessing, it could ask for a report on how these criteria are being met, if China carries out reprocessing that falls under the agreement.

Updating the Atomic Energy Act

If Congress wants a greater degree of consistency and higher nonproliferation standards in 123 agreements, it can legislate higher standards that should be sought and if those standards are not all achieved, Congress could revise the process by which such agreements should be considered for approval or disapproval by the Congress. 

Such an effort would reinforce the revised voluntary guidelines approved in 2011 by the 46-nation Nuclear Suppliers Group not to transfer enrichment and reprocessing equipment and technology exports to states that have not signed or are not in compliance with the nuclear NPT, do not allow safeguards, and do not allow more extensive monitoring under the terms of an additional protocol, among other criteria.
 
Two bipartisan bills introduced in the House in 2011 and 2013 (H.R. 1280 and H.R. 3766) offer a useful framework to consider and build on. 

The bills would not have required that states adopt the gold standard. Instead, the bills would add several new requirements to the nine key requirements already in Section 123 of the Atomic Energy Act that, if met, would "fast track" that country's nuclear cooperation agreement for approval.

Agreements with states that cannot meet the higher set of standards would be subject to a more rigorous process requiring affirmative congressional approval. 

Among the most important new requirements for "fast track" approval that were in the House bills included

  • the application of the IAEA 1997 Model Additional Protocol (dozens of states have not yet approved an additional protocol, including Algeria, Egypt, and Saudi Arabia); and
  • a pledge from countries that do not already possess enrichment and reprocessing capabilities not to acquire these capabilities and/or facilities to conduct them 

Other conditions that might be considered in updating the Atomic Energy Act include

  • clarifying that the recipient state must allow for the application of its Comprehensive Safeguards Agreement under the terms of the most up-to-date IAEA revisions, which today are known as code 3.1;
  • requiring termination of U.S. nuclear cooperation in the event the recipient state conducts a nuclear test explosion, is found to be in violation of its IAEA safeguards obligations, or acquires enrichment or reprocessing equipment from sources other than the United States;
  • requiring affirmative congressional approval for agreements that provide advance consent to enrich and/or reprocess (except in states that already have prior approval to do so);
  • requiring affirmative congressional approval for agreements lasting more than 30 years; and
  • revising Section 131 of the Atomic Energy Act to lengthen the current 15-day congressional review period for subsequent arrangements to 123 agreements involving the reprocessing of U.S.-origin nuclear material or nuclear material produced with U.S. supplied technology (subsequent arrangements are required for forms of nuclear cooperation requiring additional Congressional approval, such as recipient states' enrichment or reprocessing of nuclear material transferred pursuant to the agreement).

In light of (1) the growing interest in nuclear power in geopolitically sensitive regions of the globe; (2) the inclusion of the "Gold Standard" in the United Arab Emirates and Taiwan agreements; and (3) new Nuclear Supplier Group rules adopted in 2011, it is prudent to examine how the Atomic Energy Act might be updated to better address the proliferation risks of today-and tomorrow.—KINGSTON REIF, director for disarmament and threat reduction policy

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Posted: July 2, 2015