United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act

Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 7081) to approve the United States-India Agreement for Cooperation on Peaceful Uses of Nuclear Energy, and for other purposes.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days to revise and extend their remarks and to include extraneous material on the resolution under consideration.

Mr. Speaker, I ask unanimous consent that the ranking member of the House Foreign Affairs Committee, Ms. Ros-Lehtinen, be given 10 minutes, one-half of my time, to be put under her control.

Mr. Speaker, I yield myself no more than 5 minutes.

I am a strong advocate of closer U.S.-India ties, including peaceful nuclear cooperation. I voted for the Hyde Act, which established a framework for such cooperation today. The bill before us today will approve the U.S.-India Agreement for Peaceful Nuclear Cooperation.

Under the Hyde Act of 2 years ago, Congress was to have 30 days to review the agreement before beginning the consideration of a privileged resolution of approval. Instead, the agreement is now before us in the waning days before adjournment. We can approve the agreement now with the oversight safeguards built into this bill or we can wait until the next Congress and start over, but if we wait, however, we will likely only vote on a simple resolution of approval without any of these oversight improvements.

On balance, integrating India into a global nonproliferation regime is a positive step. Before anyone gets too sanctimonious about India's nuclear weapons program, we should acknowledge that the five recognized nuclear weapons states have not done nearly enough to fulfill their commitments under the Nuclear Nonproliferation Treaty, including making serious reductions in their own arsenals, nor in the case of the United States in ratifying the Comprehensive Test Ban Treaty.

Having said that, I continue to have concerns about ambiguities in the agreement, and I, therefore, will insert several documents in the Record to clarify the meaning of these and other important issues. It is my view that these documents constitute key and dispositive parts of the authoritative representations described in section 102 of this bill.

Department of State,

Washington, DC, Jan 16, 2008.

Hon. Tom Lantos,

Chairman, Committee on Foreign Affairs, House of

Representatives.

Dear Chairman Lantos: I am writing in response to your

letter of October 5, 2007, concerning Congressional review of

the recently-initialed U.S.-India Agreement for peaceful

nuclear cooperation (the ``123'' agreement).

The Department welcomes the opportunity to answer any

questions that members of the Foreign Affairs Committee may

have concerning the agreement. To that end, please find

enclosed the Department's responses to the 45 Questions for

the Record that you submitted with your letter.

Thank you for raising your concerns, as well as those of

the other members of your committee, on this important issue.

Thank you also for your personal interest in, and support of,

the overall Civil Nuclear Cooperation Initiative. We look

forward to working with you to secure passage of the

123 Agreement when it is submitted to Congress.

Sincerely,

Jeffrey T. Bergner,

Assistant Secretary,

Legislative Affairs.

Enclosure. As stated.

Questions for the Record Submitted to Assistant Secretary Bergner

Question 1: What is the Administration's expectation

regarding the likely economic benefits of this partnership,

including India's purchase of U.S. nuclear fuel, reactors,

and technology?

Answer. We are confident that this initiative will yield

important economic benefits to the private sector in the

United States. India currently has 15 operating thermal power

reactors with seven under construction, but it intends to

increase this number significantly. Meeting this ramp-up in

demand for civil nuclear reactors, technology, fuel, and

support services holds the promise of opening new markets for

the United States. Indian officials indicate they plan to

import at least eight 1000-megawatt power reactors by 2012,

as well as additional reactors in the years ahead. Studies

suggest that if American vendors win just two of these

reactor contracts, it could add 3,000-5,000 new direct jobs

and 10,000-15,000 indirect jobs in the United States. The

Indian government has conveyed to us its commitment to enable

full U.S. participation in India's civil nuclear growth and

modernization. At least 15 nuclear-related U.S. firms,

including General Electric and Westinghouse, participated in

a business delegation led by the Commerce Department in

December 2006.

In addition, participation in India's market will help make

the American nuclear power industry globally competitive,

thereby benefiting our own domestic nuclear power sector.

This initiative will permit U.S. companies to enter the

lucrative and growing Indian market--something they are

currently prohibited from doing. In addition, access to

Indian nuclear infrastructure will allow U.S. companies to

build reactors more competitively here and in the rest of the

world--not just India.

Question 2: What scientific and technical benefits does the

U.S. expect as a result of this agreement?

Answer. A successfully implemented civil nuclear

cooperation initiative with India will allow scientists from

both our nations to work together in making nuclear energy

safer, less expensive, more proliferation-resistant, and more

efficient. Newly forged partnerships in this area may also

facilitate scientific advancement in the many facets of

nuclear energy technology. Indian involvement in

international fora such as the International Thermonuclear

Experimental Reactor and the Generation-IV Forum can expand

the potential for innovation in the future of nuclear energy,

as well as the stake of emerging countries in developing

cheaper sources of energy.

In addition, we could choose to allow India to participate

in the future in the Department of Energy's Global Nuclear

Energy Partnership and collaborate with other countries with

advanced nuclear technology in developing new proliferation-

resistant nuclear technology. Such interaction could only be

contemplated subsequent to the completion of the civil

nuclear cooperation initiative.

Question 3: Does the Administration believe that the

nuclear cooperation agreement with India overrides the Hyde

Act regarding any apparent conflicts, discrepancies, or

inconsistencies? Does this include provisions in the Hyde Act

which do not appear in the nuclear cooperation agreement?

Answer. In his September 19 statement, Assistant Secretary

Boucher twice made clear that ``we think [the proposed 123

Agreement with India] is in full conformity with the Hyde

Act.'' Indeed, the Administration is confident that the

proposed agreement is consistent with the legal requirements

of both the Hyde Act and the Atomic Energy Act. The proposed

agreement satisfies the particular requirements of Section

123 of the Atomic Energy Act with the exception of the

requirement for full-scope safeguards, which the President is

expected to exempt prior to the submission of the agreement

to Congress for its approval, as provided for in section 104

of the Hyde Act. The agreement is also fully consistent with

the legal requirements of the Hyde Act.

Question 4: Why are dual-use items for use in sensitive

nuclear facilities mentioned in the proposed U.S.-Indian

nuclear cooperation agreement, when such items are not

transferred pursuant to an agreement for cooperation?

Answer. The Agreement provides for such transfers,

consistent with the ``full'' cooperation envisaged by the

July 18, 2005 Joint Statement. Article 5(2) of the 123

Agreement provides for such transfers by the Parties,

however, only ``subject to their respective applicable laws,

regulations and license policies.'' It is not unusual for

U.S. agreements for peaceful nuclear cooperation to provide

for transfers of items that would in fact be transferred

outside the agreement, if they are to be transferred at all.

For example, many U.S. agreements, including the proposed

U.S.-India Agreement, cover transfers of ``components'' and

``information,'' even though such transfers would normally

take place outside the agreement. Most importantly, it should

be noted that while the proposed U.S.-India Agreement

provides for transfer of the items in question, as a

framework agreement it does not compel any such transfers;

and as a matter of policy the United States does not transfer

dual-use items for use in sensitive nuclear facilities.

Question 5: Is it the intention of the U.S. government to

assist India in the design, construction, or operation of

sensitive nuclear technologies through the transfer of dual-

use items outside the agreement? If so, how is this

consistent with long-standing U.S. policy to discourage the

spread of sensitive nuclear technology and with Section

103(a)(5) of the Hyde Act? Has the U.S. transferred such

dual-use items to sensitive nuclear facilities in other

cooperating parties and, if so, to which countries?

Answer. Consistent with standing U.S. policy, the U.S.

government will not assist India in the design, construction,

or operation of sensitive nuclear technologies through the

transfer of dual-use items, whether under the Agreement or

outside the Agreement. The United States rarely transfers

dual-use items for sensitive nuclear activities to any

cooperating party and no such transfers are currently

pending.

Question 6. Does the Administration have any plan or

intention to negotiate an amendment to the proposed U.S.-

India agreement to transfer to India sensitive nuclear

facilities or critical components of such facilities? If so,

how would such transfers be consistent with the above-cited

provision of the Hyde Act and the long-standing U.S. policy

to discourage the spread of such technologies?

Answer. The Administration does not plan to negotiate an

amendment to the proposed U.S.-India Agreement to transfer to

India sensitive nuclear facilities or critical components of

such facilities.

Question 7. Is it the intention of the Administration to

transfer or allow the transfer of sensitive nuclear

technology outside of the U.S.-India nuclear cooperation

agreement? If so, how would such transfers be consistent with

the Hyde Act and the long-standing U.S. policy to discourage

the spread of such technologies?

Answer. Although the Hyde Act allows for transfers of

sensitive nuclear technology under certain circumstances, it

is not the intention of the Administration to transfer or

allow the transfer of sensitive nuclear technology to India

outside the U.S.-India Agreement for peaceful nuclear

cooperation.

Question 8. What is the State Department's position

regarding the manner by which an amendment to the proposed

U.S.-India nuclear cooperation agreement would be submitted

to the Congress? Because it would be an amendment to an

exempted agreement, does the Administration agree that it

would require a Joint Resolution of Approval before entering

into force?

We would look at any future amendment on a case-by-case

basis. Regarding the specific example discussed in the

question, the Administration has no plan or intention to

negotiate an amendment to the proposed U.S.-India agreement

to transfer to India sensitive nuclear facilities or critical

components of such facilities.

Question 9: Would the U.S. limit any transfer of dual-use

technology to India's enrichment and reprocessing facilities

to those that were participants in a bilateral or

multinational program to develop proliferation-resistant fuel

cycle technologies?

Answer. As previously stated, it is not the intention of

the U.S. government to assist India in the design,

construction, or operation of sensitive nuclear technologies

through the transfer of dual-use items, whether under the

Agreement or outside the Agreement. India does not have any

facilities that participate in a bilateral or multinational

program to develop proliferation-resistant fuel cycle

technologies. If India were to develop such facilities,

potential dual-use transfers could be considered only under

the exceptions granted in the Hyde Act.

Question 10. Why does Paragraph 4 of Article 10 of the

U.S.-India agreement rely on an IAEA decision regarding the

impossibility of applying safeguards rather than either

party's judgment that the Agency is not or will not be

applying safeguards? Would this permit a situation to arise

in which there were a period of time during which safeguards

might not be applied but the IAEA had not reached a

conclusion that the application of safeguards was no longer

possible?

Answer. Paragraph 4 of Article 10 addresses one situation--

the same situation as is addressed in paragraph 4(a) of the

Nuclear Suppliers Group Guidelines--in which fall-back

safeguards would be required because the International Atomic

Energy Agency has decided that the application of Agency

safeguards is no longer possible. It does not, however,

constitute the fundamental basis provided by the Agreement

for the application, if needed, of fall-back safeguards. That

basis is provided by Paragraph 1 of Article 10 which states

categorically that ``[s]afeguards will be maintained with

respect to all nuclear materials and equipment transferred

pursuant to this Agreement, and with respect to all special

fissionable material used in or produced through the use of

such nuclear materials and equipment, so long as the material

or equipment remains under the jurisdiction or control of the

cooperating Party.''

This guarantee follows the formula prescribed by section

123(a)(1) of the U.S. Atomic Energy Act of 1954, as amended.

Taken together with paragraph 3 of Article 16 of the

Agreement, it provides that safeguards in some form--

International Atomic Energy Agency or other--must always be

maintained with respect to all nuclear items in

India subject to the Agreement so long as they remain under

the jurisdiction or control of India irrespective of the

duration of other provisions in the Agreement or whether the

Agreement is terminated or suspended for any reason,

precisely as section 123(a)(a) of the Atomic Energy Act

requires.

Regarding the second part of the question, for the reasons

just given, Paragraph 1 of Article 10 precludes there arising

such a situation.

Question 11: Why does the provision not call for rectifying

measures, as in the Japan agreement? Why does it not call for

the parties to immediately enter into arrangements which

conform to safeguards principles and procedures of the

Agency?

Answer. Different approaches to fall-back safeguards are

possible, consistent with the requirement of section

123(a)(1) of the Atomic Energy Act. If for some reason

International Atomic Energy Agency safeguards fail to be

applied to nuclear items in India subject to the U.S.-India

Agreement, the Parties of necessity must enter into

arrangements for alternative measures to fulfill the

requirement of paragraph 1 of Article 10.

Question 12. Have ``appropriate verification measures''

been discussed, defined, or otherwise outlined with Indian

officials? If Indian officials have shared their views on

appropriate verification measures, what are those views? Do

U.S. and Indian views diverge and if so, how?

Answer. The United States has not discussed in detail with

India what form ``appropriate verification measures'' might

take if the International Atomic Energy Agency decides that

it is no longer possible for it to apply safeguards as

provided for by paragraph 2 of Article 10 of the U.S.-India

Agreement. The United States has expressed its view to India

that acceptable alternative measures in that case might range

from an alternative safeguards arrangement with the

International Atomic Energy Agency, to some other form of

international verification. The Government of India has

expressed its view that for purposes of implementing the

U.S.-India Agreement, Agency safeguards can and should be

regarded as being ``in perpetuity.'' At the same time it

fully appreciates that paragraph 1 of Article 10 of the

Agreement does not limit the safeguards required by the

Agreement to Agency safeguards.

Question 13: In the U.S. view, how would potential

appropriate verification measures provide effectiveness and

coverage equivalent to that intended to be provided by

safeguards in paragraph 1 of Article 10?

Answer. The ``appropriate verification measures'' referred

to in paragraph 4 of Article 10 would be an alternative to

International Atomic Energy Agency safeguards applied

pursuant to the India-Agency safeguards agreement referenced

in paragraph 2 of Article 10, the implementation of which in

the normal course of events would satisfy the safeguards

requirement of paragraph 1 of Article 10 with respect to

India. If it were no longer possible for the Agency to apply

safeguards to nuclear items subject to the U.S.-India

Agreement in India, alternative verification measures agreed

by the Parties would need to be carried out on some other

international basis to maintain continuity of safeguards as

required by paragraph 1 of Article 10. The United States

would expect such measures to provide effectiveness and

coverage equivalent to that intended to be provided by the

India-Agency safeguards agreement referenced in paragraph 2

of Article 10, albeit without a necessary role for the

International Atomic Energy Agency in their application.

Question 14. Which of the commitments that the United

States made in Article 5 are of a binding legal character?

Does the Indian Government agree?

Answer. The question quotes paragraph 6 of article 5, which

contains certain fuel supply assurances that were repeated

verbatim from the March 2006 separation plan. These are

important Presidential commitments that the U.S. intends to

uphold, consistent with U.S. law.

Question 15. What is the definition of ``disruption of

supply'' as used in Article 5? Do the U.S. and Indian

governments agree on this definition?

Answer. It is the understanding of the United States that

the use of the phrase ``disruption of fuel supplies'' in

Article 5.6 of the 123 Agreement is meant to refer to

disruptions in supply to India that may result through no

fault of its own. Examples of such a disruption include (but

are not limited to): a trade war resulting in the cut-off of

supply; market disruptions in the global supply of fuel; and

the potential failure of an American company to fulfill any

fuel supply contracts it may have signed with India. We

believe the Indian government shares our understanding of

this provision.

Question 16. Would any of these commitments continue to

apply if India detonated a nuclear explosive device? If so,

under what circumstances?

Answer. As outlined in Article 14 of the 123 Agreement,

should India detonate a nuclear explosive device, the United

States has the right to cease all nuclear cooperation with

India immediately, including the supply of fuel, as well as

to request the return of any items transferred from the

United States, including fresh fuel. In addition, the United

States has the right to terminate the agreement on one year's

written notice. (Notice of termination has to precede

cessation of cooperation pursuant to Article 14). In case of

termination, the commitments in Article 5.6 would no longer

apply.

Question 17. Do the assurances in Article 5 require the

United States to assist India in finding foreign sources of

nuclear fuel in the event that the United States ceases

nuclear cooperation with India?

Answer. Ceasing nuclear cooperation with India would be a

serious step. The United States would not take such a serious

step without careful consideration of the circumstances

necessitating such action and the effects and impacts it

would entail. Such circumstances would include, for example,

detonation of a nuclear weapon, material violation of the 123

Agreement, or termination, abrogation, or material violation

of International Atomic Energy Agency safeguards. The

provisions in article 14 on termination of the agreement and

cessation of cooperation would be available in such

circumstances, and their exercise would render article 5.6

inapplicable. Moreover, such circumstances would likely be

inconsistent with the political underpinnings of the U.S.-

India Initiative upon which the commitments in article 5.6

were based.

Question 18. How is this fuel supply assurance consistent

with Section 103(a)(6) of the Hyde Act which states that it

is U.S. policy to: ``Seek to prevent the transfer to any

country of nuclear equipment, materials, or technology from

other participating governments in the Nuclear Suppliers

Group or from any other source if nuclear transfers to that

country are suspended or terminated pursuant to this title,

the Atomic Energy Act, or any other United States law''?

Answer. There is no inconsistency between the fuel supply

assurances contained in Article 5 of the U.S.-India Agreement

and section 103(a)(6) of the Hyde Act. Paragraph 6 of Article

5 of the U.S.-India Agreement records assurances given by the

United States to India in March 2006. In particular, the

United States conveyed its commitment ``. . . to work with

friends and allies to adjust the practices of the Nuclear

Suppliers Group to create the necessary conditions for India

to obtain full access to the international fuel market,

including reliable, uninterrupted and continual access to

fuel supplies from firms in several nations,'' and ``[i]f

despite these arrangements a disruption of fuel supplies to

India occurs, the United States and India would jointly

convene a group of friendly countries . . . to pursue such

measures as would restore fuel supply to India.''

These fuel supply assurances are intended to guard against

disruptions of fuel supply to India that might occur through

no fault of India's own. Instances of such a disruption might

include, for example, a trade war resulting in the cut-off of

supply, market disruptions in the global supply of fuel, or

the failure of a company to fulfill a fuel supply contract it

may have signed with India. In such circumstances the United

States would be prepared to encourage transfers of nuclear

fuel to India by other Nuclear Suppliers Group members.

The fuel supply assurances are not, however, meant to

insulate India against the consequences of a nuclear

explosive test or a violation of nonproliferation

commitments. The language of Article 5.6(b), particularly in

the context of Article 14, does not provide for any such

insulation.

Question 19. How are these provisions regarding a life-time

strategic reserve for the operating life of India's

safeguarded reactors consistent with subparagraph (10) of

paragraph (a) of Section 103 of the Hyde Act, which states

that: ``Any nuclear power reactor fuel reserve provided to

the Government of India for use in safeguarded civilian

nuclear facilities should be commensurate with reasonable

operating requirements?''

Answer. We do not read these provisions to be inconsistent.

The parameters of the proposed ``strategic reserve'' and of

India's capacity to acquire nuclear fuel for its reactors

will be developed over time. Thus, it is premature to

conclude that the strategic reserve will develop in a manner

inconsistent with the Hyde Act.

Question 20. Do the U.S. and India agree on the definition

of reasonable reactor operating requirements for Indian

reactors? If yes, what is it? If not, how do they disagree?

Does the U.S. have an assessment of how much nuclear material

would be required for a life-time strategic reserve for each

safeguarded Indian power reactor that could receive fuel

pursuant to the proposed agreement?

Answer. The U.S.-India Agreement does not define

``reasonable operating requirements,'' and the two

governments have not discussed a definition. Any definition

would have to take into account among other things the

physical characteristics of the reactors, their expected

operating cycles, their expected time in service, the

likelihood of fuel supply disruptions over decades of

operation, and many similar factors that are difficult to

quantify in the abstract. We would expect that the actual

amount of fuel put in the reserve would depend not only on

the factors just mentioned, but also on such factors as

availability of fuel in the market, price, Indian storage

capacity, costs of storage, and similar practical

considerations. The Agreement itself establishes neither a

minimum nor a maximum quantity of nuclear material to be

placed in India's reserve.

Question 21. How are these assurances consistent with

subparagraph (6) of paragraph (a) of Section 103 of the Hyde

Act which states that it is U.S. policy to: ``Seek to prevent

the transfer to a country of nuclear equipment, materials, or

technology from other participating governments in the

Nuclear Suppliers Group or from any other

source if nuclear transfers to that country are suspended or

terminated pursuant to this title, the Atomic Energy Act of

1954 (42 U.S.C. 2011 et seq.), or any other United States

law''?

Answer. Please see the response to Question 18.

Question 22. What impact will these U.S. commitments of

nuclear fuel supply to India have on the U.S. initiatives to

discourage the spread of enrichment and reprocessing

facilities?

Answer. We do not foresee any negative impact on these

initiatives. India already possesses both types of

facilities. We do not believe that the provision of fuel

assurances to India will have any effect on our efforts to

offer reliable access to nuclear fuel to persuade countries

aspiring to develop civil nuclear energy to forgo enrichment

and reprocessing capabilities of their own.

Question 23. Have the Indians explained to the U.S. or to

the International Atomic Energy Agency their definition of

the term ``an India-specific safeguards agreement?'' If so,

what is it?

Answer. The Indian government has not yet explained to the

United States what it means by the term ``India-specific''

safeguards agreement. The Indian government has been in

discussions with the IAEA regarding its safeguards agreement.

However, these discussions have not concluded. The United

States remains confident that the safeguards agreement to be

negotiated between India and the IAEA will address all of the

concerns associated with the term ``India-specific.''

Question 24. Which provisions of INFCIRC/66/Rev.2

agreements provide for safeguards in perpetuity? Would these

apply to civil nuclear reactors that a country such as India

requests the IAEA to safeguard?

Answer. INFCIRC/66/Rev.2 is not a ``model agreement'' as is

INFCIRC/153 (the basis for NPT safeguards agreements)--

INFCIRC/66-type agreements are not as rigidly determined as

Nuclear Nonproliferation Treaty safeguards agreements.

Because INFCIRC/66-type agreements do not involve fullscope

safeguards (safeguards applied to all nuclear material in a

state), but have been aimed at the application of safeguard

to specific supplied materials or facilities, the scope of

safeguards application is delineated uniquely in each

agreement.

This is generally done through the mechanism of a dynamic

list of inventory items to which the agreement stipulates

that safeguards must be applied. The main part of the

inventory list contains facilities and material that are

permanently under safeguards. The subsidiary part of the

inventory list contains facilities that are temporarily under

safeguards due to the presence of safeguarded material. There

is a third section of the list that contains nuclear material

on which safeguards are suspended or exempted (e.g., because

the material has been diluted to the point where it is no

longer usable, has been transferred out of the state, etc.).

We would expect that the Indian safeguards agreement will be

based on this general structure, and that the nuclear

facilities India declares to be ``civil'' will be placed in

the main (permanent safeguards) part of the inventory list.

Also in the main part of the inventory would be nuclear

material exported to India, and any nuclear material

generated through the use of that material.

Consistent with International Atomic Energy Agency Board

Document GOV/1621 (which is referenced in the Hyde Act, Sec.

104(b)2), the safeguards agreement should also contain

language that ensures that: (1) the duration of the agreement

is related to the period of actual use of the items in the

recipient state; and (2) the rights and obligations with

respect to safeguarded nuclear material shall apply until

such time as the International Atomic Energy Agency

terminates safeguards pursuant to the agreement (e.g. the

material is no longer usable or has bee transferred from the

recipient state).

Question 25. Has the Indian government provided U.S.

officials with a definition of ``corrective measures''? If

so, what is it? Does it involve removing IAEA-safeguarded

material from such safeguards in certain circumstances? If

so, does the U.S. support the conclusion of an Indian

agreement with the IAEA that provides for perpetuity of

safeguards while at the same time making such perpetuity

contingent on the invocation of ``corrective measures?''

Answer. The Indian government has not provided the United

States with a definition of ``corrective measures.'' Until a

safeguards agreement is completed between India and the

International Atomic Energy Agency and the issue of

``corrective measures'' is clarified, we cannot comment on

the appropriateness of the agreement. However, we expect that

the Indian government will implement in letter and in spirit

its commitment to ``safeguards in perpetuity,'' to which it

agreed on March 2, 2006. As Secretary Rice stated during her

testimony before the Senate Foreign Relations Committee on

April 5, 2006, ``We've been very clear with the Indians that

the permanence of safeguards is the permanence of safeguards

without condition.''

Question 26. Since India is not a party to the Nuclear

Nonproliferation Treaty (NPT) and does not accept full-scope

safeguards, does this long-term consent for reprocessing for

India change U.S. policy for granting long-term consent to

reprocessing and the use of plutonium? If so, what criteria

will the U.S. now use to consider requests for reprocessing

and the use of plutonium either on a case-by-case basis or

for long-term advance programmatic arrangements?

Answer. The consent to reprocessing is contingent upon the

construction of a new, dedicated reprocessing facility that

will be under International Atomic Energy Agency safeguards.

The criteria applied by the United States in considering the

Indian request were the same as those applied in the earlier

instances (EURATOM and Japan). They are that (1) the

reprocessing will not be inimical to the common defense and

security, and (2) the reprocessing will not result in a

significant increase in the risk of proliferation beyond that

which exists at the time the approval is requested, giving

foremost consideration to whether the reprocessing will take

place under conditions that will ensure timely warning to the

United States of any diversion well in advance of the time at

which the diverted materiel could be transformed into a

nuclear explosive device. These are the criteria for granting

approval for reprocessing established by section 131 of the

Atomic Energy Act.

Article 6(iii) of the Agreement provides that India and the

United States must agree on ``arrangements and procedures''

under which the reprocessing will take place before India can

physically reprocess any material subject to the Agreement.

The Administration will ensure that the safeguards, physical

protection and other measures to be set forth in the agreed

``arrangements and procedures'' will be both rigorous and

consistent with the criteria described above.

Question 27. What special challenges will the International

Atomic Energy Agency (IAEA) face in safeguarding a

reprocessing plant in a non-NPT state that does not have

full-scope safeguards?

Answer. Assuming that, consistent with the terms of the 123

Agreement, India builds a new reprocessing plant dedicated to

the processing of material under International Atomic Energy

Agency safeguards, there would be little, if any, difference

in the technical challenge of applying safeguards to such a

facility as opposed to a comparable facility in a State with

a comprehensive safeguards agreement. There are some

differences under an INFCIRC/66 agreement in the state's

record-keeping and material accounting report requirements,

but these should not have an impact on safeguards

effectiveness. The technical objectives and technical

measures applied in the two cases would not differ in any

significant way. In each case the International Atomic Energy

Agency would seek to provide assurance that the declared

material was not diverted, and that the facility was operated

in the manner declared. The facility would be under

uninterrupted safeguards, and the material entering, exiting,

and resident in the facility would all be subject to

safeguards. In the case of India, the Agency's safeguards

conclusions would have to be limited to the civil facilities

and materials under safeguards, and could not be extrapolated

to apply to the nuclear program as a whole.

Question 28. Will the U.S. insist that the safeguards

agreement for the planned Indian reprocessing plant include

all the safeguards procedure and approaches that the IAEA

applies to the Rokkasho reprocessing facility in Japan,

including state-of-the-art, near-real-time accountancy and

containment and surveillance?

Answer. U.S. policy is that safeguards should be applied to

meet established technical standards of effectiveness, as

efficiently as possible; that is the policy we pursue in the

context of our bilateral agreements with other states such as

Japan, and we would continue to pursue such a policy in

discussions with India in connection with arrangements for

reprocessing. The safeguards methods employed at the Rokkasho

Reprocessing Plant are consistent with both International

Atomic Energy Agency safeguards criteria, and with the

results of a lengthy international cooperative effort to

address the technical problems of safeguarding large

reprocessing plants. We would expect the same approaches to

apply to a new Indian reprocessing plant dedicated to

processing safeguarded material. However, we cannot yet

speculate that safeguards would be carried out in exactly the

same manner, although containment, surveillance, and some

sort of continuous material monitoring would certainly be

involved. A new reprocessing plant may well be many years

off, and safeguards technology constantly moves forward; by

the time a new Indian plant is in operation, there will

almost certainly be a new generation of surveillance and

radiation measurement devices available, and lessons

learned from Rokkasho safeguards.

Question 29. Will the Administration submit any consent

arrangements for Indian reprocessing to Congress as an

amendment to the U.S.-India agreement for cooperation so that

Congress will have a full 90 days to give adequate time to

review its provisions? Or will the Administration submit

these only as a subsequent arrangement under section 131 of

the Atomic Energy Act, thereby allowing Congress only 15 days

of continuous session for review of this complex issue?

Answer. Section 131 of the Atomic Energy Act provides

explicitly for review and execution of subsequent

arrangements related to the reprocessing of U.S. origin

material. However, if proposed ``arrangements and

procedures'' for reprocessing involved changes to provisions

in the U.S.-India 123 Agreement, an amendment to the

agreement would be required.

Question 30. Why are the programmatic consent arrangements

that the U.S. is proposing to India, a non-NPT signatory,

much

less specific and rigorous than the procedures that the U.S.

required of EURATOM and Japan?

Answer. The advance, long-term consent accorded to India in

the U.S.-India Agreement by Article 6(iii) centers on a new

Indian national reprocessing facility that has not yet been

designed, let alone built. Many relevant nonproliferation

considerations that could readily be dealt with in the texts

of the U.S.-Japan and U.S.-EURATOM agreements (or in related

documents) could not be dealt with immediately in the U.S.-

India Agreement.

Nevertheless, the U.S.-India Agreement establishes as

fundamental criteria that a new national reprocessing

facility must be dedicated to reprocessing safeguarded

nuclear material under International Atomic Energy Agency

safeguards, and that any special fissionable material (i.e.,

plutonium) separated by the facility may only be utilized in

national facilities under International Atomic Energy Agency

safeguards. Further, it provides that the consent does not

become effective until the United States and India consult

and agree on arrangements and procedures under which

activities at the new facility will take place.

Finally, Article 6(iii) provides that the arrangements and

procedures must address nonproliferation considerations

identical to those addressed in the procedures relating to

the U.S.-Japan and U.S.-EURATOM agreements (e.g. safeguards,

physical protection, storage, environmental protection), as

well as ``such other provisions as may be agreed by the

Parties.'' At the appropriate time the United States will

consult with India for the purpose of agreeing on the

requisite arrangements and procedures and will ensure that

they are no less rigorous than those governing the U.S.

consent arrangements with Japan and with EURATOM.

Question 31.Why are there no notification procedures for

adding new Indian facilities to the list of facilities that

may use plutonium derived from U.S.-supplied fuel?

Answer: The procedures established by Article 7.1 of the

U.S.-India Agreement whereby each Party records all

facilities storing separated plutonium subject to the

Agreement on a list and makes its list available to the other

Party serve equally to notify to the other Party all

facilities utilizing (or potentially utilizing) plutonium

subject to the Agreement, since the plutonium-bearing fuel

must first be located at the facility before it can be

utilized. A similar approach is taken in the U.S.-EURATOM

Agreement, where facilities formally notified as being added

to a party's ``Delineated Program'' (Annex A) do not include

utilization facilities; the latter are notified, as

appropriate, when they are added to a ``Storage'' list as

provided for by Article 8.3.

Question 32. Will the United States insist that any

plutonium and uranium recovered from the reprocessing of

U.S.-origin fuel at the proposed dedicated Indian

reprocessing facility be subject to IAEA safeguards and

peaceful, non-explosive use assurances in perpetuity,

including any such material recycled in Indian reactors?

Answer. Yes. Article 9, Article 10, and Article 16 of the

U.S.-India Agreement guarantee this coverage.

Question 33. Will the U.S. insist that any uranium or

plutonium used in or produced through the use of U.S.-

supplied material be subject to safeguards in perpetuity if

such material is used in India's breeder reactors?

Answer. Yes. Article 10 of the U.S.-India Agreement

guarantees this coverage.

Question 34. If India decides at some point in the future

to reprocess spent breeder reactor fuel that contains U.S.-

origin material, how will the U.S. ensure that it is subject

to all the non-proliferation conditions and controls in the

proposed agreement, including safeguards and consent rights?

Answer. Article 10.6 of the U.S.-India Agreement provides

that ``[e]ach Party shall establish and maintain a system of

accounting for and control of nuclear material transferred

pursuant to this Agreement and nuclear material used in or

produced through the use of any material, equipment, or

components so transferred.'' Article 10.7 provides that

[u]pon the request of either Party, the other Party shall

report or permit the IAEA to report to the requesting Party

on the status of all inventories of material subject to this

Agreement.'' Thus, the United States will be able to track

all clear material in India subject to the Agreement,

including at India's breeder reactors (which would have to be

brought under International Atomic Energy Agency safeguards

before U.S.-obligated nuclear material could be introduced to

them), at India's new dedicated reprocessing facility (when

built), and at any other Indian facility where U.S.-obligated

plutonium may be located. In tracking this material the

United States will be able to ensure that all conditions and

controls required by the Agreement, including International

Atomic Energy Agency safeguards, are in fact being

maintained.

Question 35. In light of these requirements of U.S. law,

why doesn't the proposed U.S.-Indian peaceful nuclear

cooperation agreement contain an explicit reference to the

actions that would give the U.S. the right to terminate

nuclear cooperation and to require the return of equipment

and materials subject to the agreement, if India detonates a

nuclear explosive device?

Answer. Article 14 of the proposed U.S.-India agreement for

cooperation provides for a clear right for the U.S. to

terminate nuclear cooperation and a right to require the

return of equipment and materials subject to the agreement in

all of the circumstances required under the Atomic Energy

Act, including if India detonated a nuclear explosive device

or terminated or abrogated safeguards (per section 123(a)(4)

of the Act). Thus, it fully satisfies the relevant

requirements of the Act.

Question 36.Does the U.S. possess the right under Article

14, without any precondition or consent by India, to take

back any and all U.S.-origin nuclear material or equipment

provided to India pursuant to the nuclear cooperation

agreement?

Answer. Under Article 14 of the proposed agreement, the

U.S. would be able to exercise the right to require the

return of material and equipment subject to the agreement

after (1) giving written notice of termination of the

agreement and (2) ceasing cooperation, based on a

determination that ``a mutually acceptable resolution of

outstanding issues has not been possible or cannot be

achieved through consultations.'' Thus, both of the actions

that must be taken to exercise the right of return would be

within the discretion of the U.S. Government, and both

actions could be taken at once in the unlikely case that the

U.S. believed that a resolution of the problem could not be

achieved through consultations.

Article 14 does not require that the other party consent to

the exercise of the right to terminate the agreement, the

right to cease cooperation, or the right of return. Prior to

the actual removal of items pursuant to the right of return,

the parties would engage in consultations regarding, inter

alia, the quantity of items to be returned, the amount of

compensation due, and the methods and arrangements for

removal. These consultations are a standard feature of right

of return provisions and are included in all 123 agreements

that the United States has signed with other cooperating

parties.

Question 37. Under what circumstances does the termination

provision allow the United States to terminate cooperation

with India? Does the U.S. have the unconditional right to

cease cooperation immediately upon its determination that

India has taken action that the U.S. believes constitutes

grounds for termination of cooperation?

Answer. Like all other U.S. agreements for nuclear

cooperation, the proposed U.S.-India agreement is a framework

agreement and foes not compel any specific cooperation. Thus,

a cessation of cooperation would not be inconsistent with the

provisions of the agreement. Also, as in other agreements for

cooperation, the proposed U.S.-India agreement provides

specifically (in article 14) for a right to cease

cooperation. Article 14 makes clear that the U.S. would have

the right to cease cooperation immediately if it determined

that India had taken actions that constituted grounds for

such cessation and that a resolution of the problem created

by India's actions could not be achieved through

consultations. This is a reciprocal right that India enjoys

as well. Article 14 does not elaborate the specific

circumstances that might bring about such a formal cessation

of cooperation. However, the provisions of article 14

underscore the expectation of both parties that termination

of the agreement, cessation of cooperation, and exercise of

the right of return would be serious measures not to be

undertaken lightly.

Question 38. Could the U.S. terminate cooperation pursuant

to Article 14 of the nuclear cooperation agreement for

reasons other than India's detonation of a nuclear explosive

device or abrogating or violating a nuclear safeguards

agreement? Does the government of India agree?

Answer. As noted in the previous answer, Article 14 of the

U.S.-India Agreement does not elaborate the specific

circumstances that might trigger a cessation of cooperation

pursuant to that article. As explained in the answer to

question 17, the circumstances for possible termination would

include, for example, detonation of a nuclear weapon,

material violation of the 123 Agreement, or termination,

abrogation, or material violation of a safeguards agreement.

The provisions of Article 14 underscore the expectation of

both parties that termination of the agreement, cessation of

cooperation, and exercise of the right of return would be

serious measures not to be undertaken lightly. We believe the

language establishing these rights is clear and well

understood by both countries.

Question 39. Do the nonproliferation assurances and

conditions in the proposed new agreement apply to the nuclear

materials and equipment that the U.S. supplied for the

Tarapur reactors, as well as the spent fuel from those

reactors? If not, why?

Answer. The proposed U.S.-India Agreement would not apply

retroactively to the spent fuel from the Tarapur reactors.

The Atomic Energy Act does not require such retroactive

application, but it does impose certain conditions with

respect to previously exported material before embarking on

new cooperation (see section 127). The Administration

believes it will be able to satisfy these requirements of the

Atomic Energy Act.

Question 40. Does the U.S. continue to hold the position

that India legally obligated to adhere to the

nonproliferation assurances and controls, including peaceful-

use assurances, safeguards, consent to reprocessing and

retransfer to their countries with respect to the nuclear

equipment and materials that were subject to the expired 1963

agreement for cooperation? Does the Indian Government share

the U.S. views?

Answer. The U.S. and India have maintained differing legal

positions on the question of residual conditions and controls

on

nuclear material subject to the 1963 agreement following

expiration of the agreement in 1993. However, India has

agreed with the International Atomic Energy Agency on the

application of safeguards to nuclear material from the

Taracur reactors. Moreover, the material is subject to the

INFCIRC/66 Agreement. And the U.S. is confident that there

would be consultations between the U.S. and India before any

change in the status of the nuclear material (e.g.,

reprocessing).

Question 41. Will the Indian Government have any legal

right to suspend or eliminate safeguards, reprocess U.S.-

origin material, or otherwise take any action that would be

prohibited under the proposed agreement after the termination

by either party of the proposed?

Answer. Article 16 of the proposed U.S.-India Agreement

expressly provides for the survival of essential rights and

conditions on items subject to the agreement even after

termination or expiration of the agreement, including inter

alia with respect to the application of safeguards (article

10), reprocessing consent (article 6), and peaceful use

(article 9).

Question 42. Does the Administration agree with Prime

Minister Singh that there will be no derogation of India's

right to take corrective measure in the event of fuel supply

interruption? Will any corrective measures that India might

take involve any derogation of the U.S. nonproliferation

assurances, rights, and controls that are set out in articles

5.6(c), 6, 7, 8, 9, and 10?

Answer. The language of article 16 clearly provides for the

applicability of the referenced provisions to items subject

to the proposed agreement even after termination or

expiration of the agreement. Until India has completed its

safeguards agreement with the International Atomic Energy

Agency and the parameters of ``corrective measures'' are

known, we will not be in a position to speak definitively to

the potential effect on other provisions of the proposed

agreement. That said, it would not be consistent with the

proposed agreement text for such corrective measures to

extract from the applicability of the provisions referenced

in article 16 to items subject to the proposed agreement,

including after termination or expiration of the agreement.

Question 43. What are the explicit linkages and

interlocking rights and commitments that Prime Minister Singh

was referring to? Do the U.S. and India governments agree on

the definition of these linkages and interlocking rights and

commitments? If not, how do they differ?

Answer. International agreements, by their nature,

typically involve interlocking rights and commitments, and

this is the case with our agreements for nuclear cooperation.

The creation of a framework for nuclear cooperation is

predicated on a set of rights and conditions that serve

essential nonproliferation purposes. Beyond that, we can only

say that the quoted statement is at a high level of

generality, and we are not in a position to speak for the

Indian government as to whether anything more specific was

intended by these words.

Question 44. What is the Administration's understanding of

the Prime Minister's statement that India's reprocessing

rights are ``permanent''? Specifically, does it mean that the

U.S. will not have the right to withdraw its consent to

India's reprocessing of U.S.-obligated nuclear material, even

if the U.S. determines that the continuation of such

activities would pose a serious threat to our national

security or nonproliferation?

Answer. The U.S. has agreed to the reprocessing of U.S.-

origin materials, to come into effect when the parties agree

on ``arrangements and procedures'' and India establishes. a

new national reprocessing facility dedicated to reprocessing

safeguarded material under IAEA safeguards. As with the

arrangements governing reprocessing consents granted by the

U.S. in connection with the Japan and EURATOM agreements, the

proposed arrangements and procedures with India will provide

for withdrawal of reprocessing consent. Such a right is also

included in Article 14.9 of the U.S.-India Agreement.

Question 45. In the conference report of the Hyde Act,

Congress stated that it intended for the United States to

``seek agreement among Nuclear Suppliers Group members that

violations by one country of an agreement with any Nuclear

Suppliers Group member should result in joint action by all

members, including, as appropriate, the termination of

nuclear exports.'' Will the administration be seeking such a

commitment when it proposes that the Nuclear Suppliers Group

provide a nuclear trade rule exemption for India? If not, why

not?

Answer. Paragraph 16 of the Nuclear Suppliers Group

Guidelines for Nuclear Transfers (INFCIRC/254/Rev.8/Part 1)

provides that suppliers should (1) consult if, inter alia,

one or more suppliers believe there has been a violation of a

supplier/recipient understanding; (2) avoid acting in a

manner that could prejudice measures that may be adopted in

response to such a violation; and (3) agree on ``an

appropriate response and possible action, which could include

the termination of nuclear transfers to that recipient.''

Assuming the Nuclear Suppliers Group agrees by consensus to

an exception for India, this guideline would apply in the

case of any nuclear transfers by a Nuclear Suppliers. Group

supplier to India. The Administration believes that the

existing provisions of paragraph 16 of the Guidelines serve

the Congressional concerns expressed in the conference report

on the Hyde Act, and therefore no further elaboration is

needed in connection with the proposed exception for India.

,Mr. BERMAN. Mr. Speaker, this bill also gives the right to disapprove a Presidential decision to resume civil nuclear cooperation with any country, not just with India, that tests a nuclear weapon. It will also ensure that India takes the necessary remaining steps to bring its IAEA safeguards agreement fully into force and to conclude an additional protocol with the IAEA as India has committed to do. It gives Congress the ability to review the future reprocessing arrangements that will allow India to reprocess spent U.S. fuel.

Finally, late yesterday, Secretary of State Rice made a personal commitment to me that, in a change of policy, the United States will make its highest priority at the November meeting of the Nuclear Suppliers Group the achievement and the decision by all of the nuclear suppliers to prohibit the export of enrichment and reprocessing equipment and technology to states that are not members of the treaty on nonproliferation. This would be consistent with the intent of the Congress as expressed in the Hyde Act.

In light of the improvements for congressional oversight in this bill and in light of the Secretary's commitment, I will be voting for H.R. 7081.

Mr. Speaker, I'm a strong advocate of closer U.S.-India ties, and I support peaceful nuclear cooperation between our two countries. In 2006, I voted for the Hyde Act, which established a framework for such cooperation. The bill before us today, the ``United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act,'' would approve the U.S.-India Agreement for Peaceful Nuclear Cooperation, and allow that agreement to come into effect for the United States.

Under the Hyde Act, Congress was to have 30 days to review the agreement before beginning consideration of a privileged resolution of approval. Unfortunately, because of months of delay in New Delhi and the Administration's acceleration of the deliberations of the Nuclear Suppliers Group to grant India an exemption from its restrictions on trade to India, the Agreement is now before us in the waning days before adjournment.

We therefore have two choices: approve the Agreement now, with the safeguards built into this bill; or wait until. the next Congress and start again. If we wait, however, we will likely only vote on a simple resolution of approval, without the safeguards of this bill, and without the additional enhancements to Congressional oversight over these types of agreements that are required. Our leverage on the Administration--this one or the next--will only decrease with time.

On balance, integrating India into the global nonproliferation regime is a positive step. And before anyone gets too sanctimonious about India's nuclear weapons program, we should acknowledge that the five recognized nuclear weapons states haven't done nearly enough to fulfill their commitments under the Nuclear Nonproliferation Treaty, including making serious reductions in their own arsenals. Nor has the U.S. ratified the Comprehensive Test Ban Treaty.

Having said that, I continue to have concerns about ambiguities in the nuclear cooperation agreement that the Bush Administration negotiated with the government of India, particularly with regard to the potential consequences if India tests another nuclear weapon, and to the legal status of so-called ``fuel assurances'' made by our negotiators.

Section 102(a) of the legislation before us declares that the agreements have the meanings contained in the authoritative representations by the President and his representatives.

I ask unanimous consent to include in the Record5st a message from the President and a letter from the State Department that directly pertain to the interpretation of the U.S.-India agreement and that constitute some of the authoritative representations made by the President described in section 102(a).

These documents make clear that the assurances contained in Article 5(6) of the Agreement are political commitments, and do not constitute a legal obligation on behalf of the United States or any official, agency, or instrumentality of the Government of the United States to provide nuclear fuel in any form to the Government of India, or to any Indian organization, individual, or entity under any circumstances whatsoever. They also make clear that the political commitments contained in Article 5(6) of the Agreement do not apply in the event of a disruption of the foreign supply of nuclear fuel to India as a consequence of a detonation of nuclear explosive device or a violation of nonproliferation commitments by India.

I am also deeply troubled that the Administration completely disregarded important nonproliferation requirements in the Hyde Act--

thus putting American companies at a competitive disadvantage--when seeking a special exemption for India at the Nuclear Suppliers Group.

This bill therefore includes a number of provisions designed to improve Congressional oversight of the India nuclear cooperation agreement and help ensure that the agreement is interpreted in a manner consistent with the constraints in the Hyde Act.

It gives Congress the right to disapprove, under expedited procedures, a Presidential decision to resume civil nuclear cooperation with any country--not just India--that tests a nuclear weapon. We, the Congress, should be involved in that process.

And the legislation will ensure that India takes the necessary remaining steps to bring its IAEA safeguards agreement fully into force, to place the reactors and other facilities under those safeguards, and to conclude a more extensive Additional Protocol for enhanced safeguards with the IAEA, all of which it has previously committed to do.

And, Mr. Speaker, this legislation gives Congress the ability to review the reprocessing arrangement yet to be negotiated that will set out the conditions and safeguards to allow India to reprocess spent U.S. fuel.

Finally, late yesterday, Secretary of State Rice made a personal commitment to me that--in a change of policy--the United States will give its ``highest priority'' to achieving an agreement at the November Nuclear Suppliers Group (NSG) meeting to prohibit the export of enrichment and reprocessing equipment and technology to states that are not members of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). This would be consistent with the intent of Congress as expressed in the Hyde Act to further restrict the international transfers of this sensitive technology.

In light of the improvements for Congressional oversight in this bill, I will be voting for H.R. 7081.

I reserve the balance of my time.

Mr. Speaker, I am pleased to yield 1\1/4\ minutes to the Chair of the Subcommittee on the Middle East and South Asia, someone who was involved in this issue since the first announcement of the joint declaration in the summer of 2005, which was the first time Congress was ever told about this issue, the gentleman from New York (Mr. Ackerman).

Mr. Speaker, I am pleased to yield 1 minute to the Chair of the Western Hemisphere Subcommittee of the Foreign Affairs Committee, the gentleman from New York (Mr. Engel).

Mr. Speaker, I'm pleased to yield 1 minute to a member of our committee, the gentleman from New York (Mr. Crowley).

Mr. Speaker, I'm pleased to yield 1 minute to the gentleman from American Samoa, Eni Faleomavaega, chairman of the Subcommittee on Asia, the Pacific, and the Global Environment.

Mr. Speaker, I'm pleased to yield 1 minute to a very active member of the House Foreign Affairs Committee, the gentlelady from Texas, Ms. Sheila Jackson-Lee.

Mr. Speaker, I yield the remaining time to the gentleman from New Jersey (Mr. Pallone).

Mr. President, the tragedy of 9/11 is indelibly imprinted on the minds of all of us. What is not so well understood or remembered was that one month later, October 2001, something else happened. Graham Allison, someone who has worked on nonproliferation in the Clinton administration, has written a book about it. Time magazine wrote about it in March of 2002.

Here is what they said: A month after 9/11, for a few harrowing weeks, a group of U.S. officials believed the worst nightmare of their lives--something even more horrific than 9/11--was about to come true. In October of 2001, an intelligence report went out to a small number of government agencies, including the Energy Department's top secret nuclear emergency search team based in Nevada.

This is a Time report, but I have it also in a book written by Graham Allison.

The report said that terrorists were thought to have obtained a 10- kiloton nuclear weapon from the Russian arsenal and that they planned to smuggle it into New York City. The source of the report was a CIA agent named Dragonfire. Dragonfire's report actually was something that was claimed to be undetermined in terms of reliability. But it was something the CIA agent named Dragonfire had picked up. Dragonfire's claim tracked with a report from a Russian general who believed his forces were missing a 10-kiloton device. Since the mid-1990s, proliferation experts have wondered whether several portable nuclear devices might be missing from the Russian stockpile. That made the Dragonfire report all that more alarming. Detonation of a 10-kiloton nuclear weapon in downtown New York would kill about 100,000 civilians, irradiate 700,000 more, and flatten everything for a half a mile.

So the counterterrorist investigators went on the highest alert, we are told. The search team went to New York City. It was kept secret so as not to panic the people of New York. Mayor Giuliani was not informed. If terrorists had managed to smuggle a nuclear weapon into New York City, the question was, could they detonate it. About

a month later, after this report from a CIA agent named Dragonfire of a nuclear weapon having been stolen by terrorists, smuggled into New York City, about to be detonated, about to kill massive numbers of people, it was determined that perhaps this was not a credible intelligence report. But in the postmortem evaluation, they determined it is plausible to have believed a Russian nuclear weapon could have been stolen. It is plausible to believe, having stolen it, terrorists could have smuggled it into New York City, and plausible to believe they could have detonated it; one low-yield nuclear weapon. There are 25,000 of them on this planet. Think of the apoplectic seizure that occurred in October of 2001 over a report by a CIA agent that he picked up some information about one low-yield nuclear weapon being smuggled into New York City. There are 25,000 nuclear weapons on this Earth.

Our job is to provide the leadership to begin to reduce the number of nuclear weapons. The bill before us will almost certainly expand the production of nuclear weapons by India.

Here is what it says to India: Even as we take apart the basic architecture of nonproliferation efforts, the nuclear nonproliferation treaty, which India is one of three countries that has never signed, even as we take that nonproliferation architecture apart with this bill, we have said to India, with this agreement, you can misuse American nuclear technology and secretly develop nuclear weapons. That is what they did. You can test those weapons. That is what they did. You can build a nuclear arsenal in defiance of United Nations resolutions and international sanctions. After testing, 10 years later, all will be forgiven, and you will be welcome into the club of nuclear powers without ever having signed the nonproliferation treaty.

Let's understand what this does. First, let me say that never has something of such moment and such significance and so much importance been debated in such a short period and given such short shrift: one very brief committee hearing in the Senate and a total of a couple of hours here on the Senate floor today; pretty disappointing.

What this agreement says is, India needs various kinds of equipment and technology to produce and build nuclear powerplants. They need more power, and they want to get it from nuclear powerplants. They have been prevented from accessing the kind of material and equipment to produce those plants because they have not signed the nonproliferation treaty, and they developed nuclear weapons outside of the purview of all of us, misusing American nuclear technology to secretly develop these weapons. Now we have said in an agreement with them, yes, we will allow big companies now to sell you this technology--this is all about big companies being able to access a new marketplace for technology, to sell the technology and the capability to develop nuclear powerplants-- we will allow you to do that, and we will have the opportunity in this agreement for you to put eight of your plants behind a curtain that will have no international inspections, which is a green light to say, you may produce additional nuclear weapons.

That is not just a supposition. Almost everybody understands that is going to happen. This agreement does not prohibit them from nuclear tests in a way that would nullify the agreement, if they do test. The Administration's interpretation of this agreement is very ambiguous about that.

I want to go through a couple of points. India would have unlimited ability to import fuel for 14 civilian powerplants under this agreement. That is what they want. They want to produce additional power with nuclear plants. Then it says India could have eight other power reactors behind a curtain that we will not be able to inspect. India can then divert its entire domestic fuel supply to eight military reactors to produce additional nuclear weapons.

What does that mean? It is our agreeing that India, that has never signed the nonproliferation treaty and has tested nuclear weapons and developed nuclear weapons in secret using our technology, is now given an agreement that allows them to build more nuclear weapons. Their neighbor is Pakistan, also possessing nuclear weapons. Pakistan warned the international community yesterday that a deal allowing India to import United States atomic fuel and technology could accelerate the nuclear arms race between India and Pakistan. India and Pakistan have fought three wars since independence from Britain in 1947 and, through a peace process, have stabilized relations since 2004, but they remain deeply distrustful of each other. We have now reached an agreement that says one of them may begin to produce additional nuclear weapons.

UPI--Islamabad, Pakistan: Without naming sources, the Press Trust reported Wednesday that the Pakistani Prime Minister has reported construction of two nuclear powerplants with Chinese assistance. The move appears aimed at counterbalancing a nuclear fuel deal negotiated with India. The decision was made on September 19 in Islamabad. The point is, we will allow you to put eight reactors behind a curtain. We will allow you to produce additional nuclear weapons that we won't know about. Is there a reaction to that? Pakistan has a reaction, to engage with the Chinese.

The United States had agreed that the purpose of the agreement was not to contain India's strategic program but to enable resumption of full civil nuclear energy cooperation. So that is the India separation plan. That is what they say. They say the United States and India agreed the purpose of the agreement is not to constrain India's strategic program. That means they say the agreement is to not constrain India's ability to produce nuclear weapons. That is what that means.

I am going to offer an amendment today that the managers will oppose. The conferees believe there should be no ambiguity regarding the legal and policy consequences of any future Indian test of a nuclear explosive device. That is from a joint statement of the conference of the Hyde Act which passed the Congress. There should be no ambiguity. Here is what the Administration says it thinks the agreement provides: Should India detonate a nuclear explosive device, the United States has the right to cease all nuclear cooperation. Well, we know we have the right. Are we going to do it? No. That is deliberate ambiguity to say if India were to test a nuclear weapon, there is nothing that will require us to decide to nullify this agreement.

Let me say again, the India Prime Minister says the agreement does not in any way affect India's right to undertake future nuclear tests, if necessary.

This is a planet with 25,000 nuclear weapons, tactical and strategic. The suspected loss or stealing of one caused an apoplectic seizure in October of 2001. We have 25,000 of them. Our job as an international leader, a world leader, our job is to begin marching back from the abyss; that is, to reduce the number of nuclear weapons. Instead we are taking apart the basic architecture of nuclear nonproliferation that has served us for many decades. We are saying to India, who has never signed the nuclear nonproliferation treaty, it is OK if you produce additional nuclear weapons we can't see and we don't know about. We are going to sign an agreement that allows you to do that. That is almost unbelievable.

India is a very important trading partner. India is a very important ally for our country. I believe that. I accept that. But this administration and those in the Congress who have agreed to the measure before us today are making a grievous mistake. We will not have second chances with respect to this issue of nuclear weapons. If we don't provide the world leadership to begin marching back from the prospect of terrorists using nuclear weapons, the prospect of nuclear weapons being stolen and developed by terrorist organizations, we will one day wake up and tragically read that a nuclear weapon was exploded in a major city on this planet. This agreement marches in exactly the wrong direction. Do you think this agreement allowing India to produce additional nuclear weapons has no impact on Pakistan, has no impact on China, has no message to the rest of the world? The message is: You can misuse American nuclear technology and secretly develop nuclear weapons. You can test those weapons. You can build a nuclear arsenal in defiance of United Nations resolutions, and

you will be welcomed as someone exhibiting good behavior with an agreement with the United States. What kind of message is that? What message does that send to others who want to join the nuclear club who say: You have nuclear weapons, we want some.

If we don't find a way to begin systematically reducing the number of nuclear weapons and stop the spread of nuclear weapons and try to find every way to prevent a nuclear weapon from ever again being exploded in anger on this planet, one day we will ruefully regret what we have done here.

Again, let me close by saying that never in my life has such a large issue been given such short shrift. This issue has great consequences for this country, the world, and their respective futures for that matter, and this administration is, in my judgment, making a very serious mistake.

Mr. President, how much time remains?

Mr. President, I yield the floor.

Mr. President, I say to the Senator from Connecticut, I am waiting for the Senator from New Mexico to come to the floor. What we are going to do is we are going to combine our two amendments.

We will still wish to take the 30 minutes each, but we will combine the two amendments and have a vote on one amendment, provided, of course, that meets unanimous consent. But I will, in a few moments, be ready to consume my half hour on this subject if that is your desire. I want to wait for Senator Bingaman to come in order to consult. He should be here momentarily.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, Senator Bingaman and I will be combining our amendments into a Dorgan-Bingaman amendment, with other cosponsors, and that is now being put together by legislative counsel. So we will have that here briefly. But why don't I proceed with my 30 minutes. I think Senator Bingaman will have 30 minutes. Then apparently there is going to be a response following that, and we will conclude a portion of this debate.

So, Mr. President, on the 30 minutes I now have available, let me read to my colleagues something written by Graham Allison. Graham Allison is someone who has been involved in nuclear nonproliferation with the Clinton administration. He wrote this in a book, and this, by the way, is published in an article. I want to read it. I will quote it:

One month after the terrorist assault on the World Trade

Center and the Pentagon, on October 11, 2001, President

George W. Bush faced a more terrifying prospect. At that

morning's presidential daily intelligence briefing, George

Tenet, the director of central intelligence, informed the

president that a CIA agent codenamed ``Dragonfire'' had

reported that Al Qaeda terrorists possessed a 10-kiloton

nuclear bomb, evidently stolen from the Russian arsenal.

According to Dragonfire, this nuclear weapon was in New York

City.

Continuing to quote:

The government dispatched a top-secret nuclear emergency

support team to the city. Under a cloak of secrecy that

excluded even Mayor Rudolph Giuliani, these nuclear ninjas

searched for the bomb. On a normal workday, half a million

people crowd the area within a half-mile radius of Times

Square. A noon detonation in Midtown Manhattan would kill

them all instantly. Hundreds of thousands of others would die

from collapsing buildings, fire and fallout in the hours

thereafter.

Continuing to quote:

In the hours that followed, Condoleezza Rice, then national

security adviser, analyzed what strategists call the

``problem from hell.'' Unlike the Cold War, when the US and

the Soviet Union knew that an attack against the other would

elicit a retaliatory strike of greater measure, Al Qaeda--

with no return address--had no such fear of reprisal. Even if

the president were prepared to negotiate, Al Qaeda has no

phone number to call.

Again, continuing to quote:

Concerned that Al Qaeda could have smuggled a nuclear

weapon into Washington as well, the president ordered Vice

President Dick Cheney to leave the capital for an

``undisclosed location,'' where he would remain for weeks to

follow--standard procedure to ensure ``continuity of

government''. . . .

Six months earlier the CIA's Counterterrorism Center had

picked up chatter in Al Qaeda channels about an ``American

Hiroshima.'' The CIA knew that Osama bin Laden's fascination

with nuclear weapons went back at least to 1992, when he

attempted to buy highly enriched uranium from South Africa. .

. .

As CIA analysts examined Dragonfire's report and compared

it with other bits of information, they noted that the

September attack on the World Trade Center had set the bar

higher for future terrorist attacks. . . .

As it turned out, Dragonfire's report proved to be a false

alarm. But the central takeaway from the case is this: The US

government had no grounds in science or logic to dismiss this

possibility, nor could it do so today.

Now, think of that. That is a discussion about one low-yield 10 kiloton nuclear weapon allegedly stolen from the Russian stockpile, smuggled into New York to be detonated by terrorists--one nuclear weapon. There are 25,000 on this Earth. One small weapon caused an apoplectic seizure about the prospect of hundreds of thousands of people being killed.

What does that have to do with this? Well, what it has to do with this is we have struggled since the end of the Second World War to try to put a cap on the bottle here and make sure a nuclear weapon is never again exploded in anger--not by a military power, not by a terrorist group. We have tried to prevent the spread of nuclear weapons. We have tried to see if we could find a way to reduce the number of nuclear weapons. We have created something called the Nuclear Non-Proliferation Treaty, the NPT. We have created something called the Nuclear Test Ban Treaty, which I regret to say our country has not ratified. But we have tried to find ways to stop the spread of nuclear weapons, stop the building of additional nuclear weapons.

One of three countries that did not sign the Nuclear Test Ban Treaty was India. They refused to sign it. In these intervening years, what we have discovered about India--a respected ally of ours, a trading partner of ours, a country we hold in high esteem--we have discovered that they misused American nuclear technology to secretly develop their own nuclear weapons. We have discovered that they tested those nuclear weapons. They have defied the United Nations resolutions and international sanctions.

Now we have discovered that an agreement has been reached with the Government of India that all will be forgiven. We will sign a new agreement with you--that I believe unwinds and undoes the entire architecture of nonproliferation of nuclear weapons. All will be forgiven. In fact, what we will do is we will say to you that you can create nuclear powerplants because you need nuclear power, and our corporations and international corporations can sell--this is about business, a lot of business--can sell to you the technology and the construction materials to produce nuclear powerplants. And, oh, by the way, the agreement also says you can have eight nuclear powerplants that are behind a curtain that will never be inspected by international inspectors. That is where you can produce additional nuclear weapons, which the Indian Government wishes to do.

This agreement is an unbelievable mistake. At exactly the moment when this country should exhibit its leadership, its world leadership that is required of this country to not only stop the spread of nuclear weapons but to begin marching back to reduce the number of nuclear weapons, at this exact time, this Government, this administration and this Congress, is saying to an ally: We will give you the green light to produce more nuclear weapons even though you have never signed the nonproliferation treaty. That is almost unbelievable to me.

The nonproliferation treaty prohibits peaceful nuclear assistance to so-called nonnuclear states unless they agree to put all their facilities under international safeguards and give up the option of producing nuclear weapons. With this agreement, we say that does not matter anymore. It does not matter. You do not have to subject these eight plants to international safeguards. You do not have to give up the option of producing nuclear weapons.

The five traditional nuclear powers in the post-Second World War period--Russia, the United States, Britain, France, and China--all have signed the nonproliferation treaty. All other countries are considered to be nonnuclear states according to the nonproliferation treaty.

Article I of the NPT obligates the recognized nuclear weapon states, including the United States, ``not in any way to assist, encourage, or induce any non-nuclear weapons State to manufacture or otherwise acquire nuclear weapons. . . .'' With this agreement, we have decided that does not matter. We have no intention to pay attention to Article I any longer.

Section 128 of the Atomic Energy Act requires all states other than the five I mentioned to have full-scope safeguards as a prerequisite for receiving U.S. civil nuclear exports. That does not matter anymore.

Section 129 of the Atomic Energy Act requires the termination of nuclear exports if a nonnuclear weapon state has, among other things, tested nuclear weapons after 1978. We have said that does not matter anymore.

Section 102 of the Arms Export Control Act requires sanctions on any nonnuclear weapon state that has detonated a nuclear device. That doesn't matter anymore. The United Nations Security Council resolution 1172 condemned India and Pakistan's 1998 nuclear tests. The United States-India agreement says that none of these provisions will be applicable to India anymore, even though it secretly used our technology to develop nuclear weapons and then tested them.

Now, a working nuclear bomb can be produced with as little as 35 pounds of uranium 235 or 9 pounds of plutonium 239. I think nuclear terrorism and the threat of nuclear terrorists gaining access to nuclear weapons represent the gravest security threats to our Nation, bar none.

Retired GEN Gene Habiger, who commanded America's nuclear forces, has said that nuclear terrorism ``is not a matter of if; it is a matter of when.''

In 2006, Henry Kissinger wrote in the Washington Post:

The world is faced with the nightmarish prospect that

nuclear weapons will become a standard part of national

armament and wind up in terrorist hands.

It will become a standard part of armament for countries, because they want to possess it, and it will inevitably end up in terrorist hands.

Former Senator Sam Nunn wrote in the Wall Street Journal:

We know that terrorists are seeking nuclear materials--

enriched uranium or plutonium--to build a nuclear weapon. We

know that if they get that material they can build a nuclear

weapon. We believe that if they build such a weapon, they

will use it. We know terrorists are not likely to be

deterred, and that the more this nuclear material is

available, the higher the risks.

We know Osama bin Laden has been seeking the opportunity and the materials to build nuclear weapons since the early 1990s. In 1998, Osama bin Laden issued a statement titled ``The Nuclear Bomb of Islam,'' declaring:

It is the duty of Muslims to prepare as much force as

possible to terrorize the enemies of God.

I described the book entitled ``Nuclear Terrorism'' written by Graham Allison, an official in the Clinton administration who worked on these issues: The potential stealing of one low-yield weapon terrorizing the country and a city.

Nowhere is the threat of nuclear terrorism more imminent than in South Asia. It is home to al-Qaida, which is seeking nuclear weapons. It is an area where Pakistan and China and India have always had tense relations. All three possess nuclear weapons. India and China fought a border war in 1962. India and Pakistan have fought three major wars and had two smaller scale contests. Both detonated nuclear explosions in 1998 and declared themselves a nuclear power. After that, the world held its breath while India and Pakistan fought a limited war in Kashmir. India is thought to have a modest cache of nuclear weapons at this point. You can go to the journals and get estimates of 25 to 50 or 60 nuclear weapons, but India wants more.

It seems to me that to do this in the absence of an understanding of what it means in the region, and in the absence of what it means to unravel the regime by which we have tried to move toward nonproliferation of nuclear weapons is a dangerous step.

I wish to describe something The New York Times wrote yesterday, and I fully agree: President Bush and his aides were so eager for a foreign policy success they didn't even try to get India to limit its weapons program in the future. They got no promise from India to stop producing bomb-making material, no promise not to expand its arsenal, and no promise not to resume nuclear testing. The Senate should postpone action until the next Congress can figure out how to limit the damage from this deal.

I fully agree with that. I don't have any understanding why we are rushing--with one short hearing before one committee in this Congress-- to a short, truncated version on the floor of the Senate, and then agreement.

Here is the agreement: India would have unlimited ability to import fuel for 14 civilian nuclear powerplants, and it could then divert all of its current domestic fuel supply to 8 military reactors which are used for nuclear weapons production, with no international inspection at all.

If anyone thinks this makes sense for our country, I think there is something wrong with that thinking.

Will it have a consequence with respect to Pakistan? I expect so. Pakistan warned the international community in July that a deal allowing India to import United States atomic fuel and technology could accelerate a nuclear arms race between Delhi and Islamabad. They have fought substantial wars before, as I said.

So what does Pakistan do? They go off and they will seek nuclear fuel assistance from China to build 10 nuclear powerplants. Will they be inspected? The move appears aimed at counterbalancing a nuclear fuel deal negotiated this year between India and Western suppliers.

Paragraph 5 of the India separation plan says: The United States and India--this is India's portion of the agreement--had agreed that the purpose of the agreement was not to constrain India's strategic program.

That is a fancy way of saying their understanding is we are not constraining their ability to produce additional nuclear weapons.

Now, the Hyde Act passed the Congress and allowed this negotiation to take place. I didn't vote for it. I was one of a minority who didn't vote for it because it had some huge holes in it, but here is what the conferees said:

The conferees believe there should be no ambiguity

regarding the legal and policy consequences of any future

testing of a nuclear explosive device by India.

That is what they said. Here is how the Administration interprets the agreement that is on the floor of the Senate:

Should India detonate a nuclear explosive device, the

United States has the right to cease all nuclear cooperation

with India.

We already have that right. But is that ambiguous? It surely is. The Administration doesn't say we are going to shut down or nullify this agreement; it says we have the right to.

The proposition of the Hyde amendment that passed the Congress said it should be unambiguous. No ambiguity. Yet the Administration is deliberately being ambiguous so that if India tests a nuclear weapon, that country may still not be subject to sanctions.

The BJP, which may be India's next ruling party, says:

The BJP would like to clearly reiterate that any compromise

on India's right to nuclear test is wholly unacceptable.

Finally, the agreement does not in any way affect India's

right to undertake future nuclear tests, if necessary.

This last statement was from the Prime Minister of India. Do we need to say more about what might or might not be here?

Senator Bingaman and I are offering an amendment, the Dorgan-Bingaman amendment, with a good number of cosponsors, that makes clear two things. No. 1: If India would test, it would nullify this agreement with respect to United States cooperation. No. 2: Senator Bingaman has added--and we are

putting them together--if India were to test a nuclear weapon, the export controls we can enact to deal with other suppliers around the world and their dealings with India should be fully utilized.

Let me go back to where I started for a bit. Probably all of my colleagues have been in the same discussions. I hear people say nuclear weapons are like any other weapon. I hear people say nuclear weapons are usable. I hear people say we need to build new nuclear weapons here in our country. We need to build bunker-buster weapons, nuclear weapons that can go under and bust some caves; Earth-penetrating bunker-buster weapons. Designer nuclear weapons. We have all heard it. This administration has wanted to build new designer nuclear weapons.

Some believe a nuclear weapon is like any other weapon. It is not. It can never be used. To the extent and when it is used, if it is used by a terrorist group or country, nothing on this Earth will be the same.

It was different in the 1940s. The last time a nuclear weapon was used in anger, outside of tests, was to end the Second World War. Then virtually no one else had nuclear weapons. Now we have nuclear weapons spread around this globe. This country has assumed the responsibility for many years--the mental responsibility to try to stop the spread of nuclear weapons. It is a desperate attempt to say: You know what. The only way this planet is going to continue is if we stop the spread of nuclear weapons. Does anybody think if people start lobbing nuclear weapons back and forth, killing millions of people, that this planet survives? I don't. We have 25,000 of them on this planet, and we are going to sign up to an agreement today that says let's produce more? Not us, although we have people here who want to produce more in this country. This says let India produce more in secret. What does that mean to Pakistan? What does that mean to China? What does that mean to that South Asian region? What does it mean to the world?

This is such a truncated debate and such a shame. There are a lot of very interesting, qualified, serious people who ought to be weighing in on this to describe what we are doing here today in terms of the consequences to this planet. What are the consequences to the regime that has existed for many years--five or six decades now--to try to stop the spread of nuclear weapons?

I had a hearing one day in my appropriations subcommittee, because we fund the nuclear weapons portion of the appropriations process in the Department of Energy. In that hearing, someone described the fact that the last time a nuclear weapon was used in a conflict was in 1945, and it has been all of these decades--all of these decades--that we have constrained the use of nuclear weapons. The Soviets and the U.S. built massive stockpiles of nuclear weapons under a doctrine called Mutually Assured Destruction, believing that if either attacked the other, the retaliation would essentially destroy both. The original attack would inflict massive damage on the country that was attacked, but the country that was attacked would also retaliate in a manner that virtually obliterated the attacking country. So that mutually assured destruction represented a standoff during the Cold War with the Soviet Union.

In the meantime, other countries aspired to become nuclear weapons powers, to obtain nuclear weapons, and to this day not only do many countries still desire these things, but now terrorists do as well. So the question is, Who is going to step us back from this cliff? We have a former Secretary of Defense who believes there is about a 50-percent chance that a nuclear weapon--I believe he said a 50-percent chance-- will be exploded in a major city within 10 years. I don't doubt that could be the prospect if we don't use all of our energy and all of our leadership capability as a leading nuclear power in this world--a nuclear weapons power in this world--to try to march back from 25,000 nuclear weapons to far fewer nuclear weapons; to try to put up walls by which we will not allow people or countries to proliferate nuclear weapons.

We have a man in Pakistan who is under house arrest, and has been for a long while, Mr. A. Q. Khan, who apparently is a national hero of sorts in Pakistan. He spread nuclear secrets all around the world for money. Our country has never even been able to interview him, to talk to him, to understand where these secrets went. As I said, he is not in prison, he is under house arrest. He is still considered a hero by some.

We have to get serious about this issue of the proliferation of nuclear weapons. We are not getting serious about an issue such as this by dismantling the very structure that has helped us now for some 60 years to prevent the spread of nuclear weapons or at least prevent the use of nuclear weapons.

In the Appropriations Committee hearing I described earlier, I said: We have been lucky, and someone said: Well, it is much more than luck. I said: I agree it is more than luck. It is a regime, it is a structure of nonproliferation that we have worked on. Many administrations worked seriously in this area.

This administration, regrettably, appointed people to positions of authority on nuclear nonproliferation who didn't believe in the mission. They didn't even believe in the mission. The question for us now is: Is this the way forward, to take apart the structure?

When I said we have been lucky, what I meant was that the structure has certainly helped, but we are going to need more than that. We are going to need some good fortune. If we think we can live on a planet with 25,000 nuclear weapons, that somehow, some way, some day, somebody is not going to steal one and detonate it in a major city--we have to be serious about this.

India is a wonderful country. India is an ally of ours. It is an ally of the United States. But that should not justify our deciding to give a green light to India--a country which has never signed the nonproliferation treaty--give the green light to produce more nuclear weapons. That is exactly what this agreement does. No one can stand up in this discussion and say: This agreement doesn't allow a country that has refused to sign the nonproliferation treaty, this agreement does not allow them to produce more nuclear weapons. It does on its face, and everybody knows it. Everybody wants to pretend as though it doesn't exist.

This is a horrible mistake. I am enormously surprised, after so many decades of people talking and thinking seriously about nuclear nonproliferation, that we reward those countries that misuse nuclear technology in order to secretly produce nuclear weapons and secretly test nuclear weapons. We now say to them: By the way, here is your reward, an agreement by which you can continue to do it; an agreement which is written in a way that says we will allow you to produce more nuclear weapons and, oh, by the way, if you test, we won't even put in the agreement that we will nullify it. An agreement we might nullify. We ought to put in the agreement, ``We will,'' which was promised in the conference report.

So maybe I am not capable of understanding the world view of some that allowing an ally of the United States, that has not signed the nonproliferation treaty, to produce additional nuclear weapons is somehow strengthening our country or the world or is good for us. Maybe I missed something, but I don't think so. I think what is missing is the logic and the commitment to nonproliferation of those who negotiated this. What is missing is the determination and the relentless effort by this country to lead in the direction of reducing the number of nuclear weapons and not allowing the production of more.

Mr. President, I yield the remainder of my time. How much time do I have remaining?

I reserve the remaining 5 minutes.

Mr. Speaker, I rise in strong opposition to this bill which will do unacceptable damage to the international nuclear nonproliferation regime.

I have worked for over three years in opposition to the U.S.-India nuclear cooperation agreement because of its disastrous implications for nonproliferation. I've been called the ``Arch-Critic'' of the deal; but really I see myself as the ``Arch-Defender'' of nuclear nonproliferation. Halting the spread of nuclear weapons is not something over which the United States can afford to compromise; this issue is central to both international stability and our own security here at home. I'm not ``attacking'' India, I am defending the Nuclear Non-Proliferation Treaty.

My goal has been to get meaningful nonproliferation conditions included in the agreement at all levels, including at the International Atomic Energy Agency (IAEA) and the Nuclear Suppliers' Group (NSG). But the Bush administration fought this at every turn.

The legislation I introduced in 2005, H. Con. Res. 318 outlined the serious nonproliferation problems of the proposed India nuclear cooperation agreement.

I testified before the House International Relations Committee on May 11, 2006 and explained the incredible dangers of the President's proposal. I told them that the deal was ``ill-conceived, that it undermines U.S. national security interests, and that it sets a dangerous precedent that will be exploited by our adversaries and rivals.'' I continue to believe that this is the case.

In response to the issues I and others raised regarding the threat to Congressional prerogatives from the administration's draft bill, the bill that was actually introduced removed many of the worst ``blank check'' provisions of the Administration bill. For instance, the administration bill would not have allowed the Congress to even see India's IAEA Safeguards Agreement or the Nuclear Suppliers' Group rule change before we voted on whether or not to give final approval.

The Motion to Recommit which I offered during floor debate on July 26, 2006 focused on India's dangerous relationship with Iran. My motion would have required India to help us halt Iran's nuclear program. It received 192 votes--the strongest vote that opponents of the deal were able to muster. Sadly, however, it was not included in the final bill.

But after the Congress passed the Henry J. Hyde Act of 2006, to allow in principle nuclear trade with India, the Bush Administration ignored many of the most important nonproliferation-related conditions and requirements which were contained in that legislation. President Bush has negotiated a deal with India which is universally recognized by nonproliferation experts as ripping an enormous hole in the nonproliferation regime by granting unprecedented concessions to India, a country that has never signed the Nuclear Nonproliferation Treaty.

I would like to take this opportunity to explain for the Record, the problems inherent with this bill, and more generally with President Bush's now three-year campaign to carve out a massive loophole to the nonproliferation rules on behalf of India.

Administration Arguments Fail the Reality Test

In selling its proposal for the nuclear cooperation agreement with India, the Bush Administration relied on arguments which simply fail the realty test. Among the most glaringly false arguments on which the administration continues to rely to this day are that the nuclear deal will unlock India for American commerce, and that India will be a natural strategic partner with the United States,

The U.S.-India trade relationship

The Bush Administration has argued that the nuclear cooperation agreement will exponentially boost commerce with India. They also argued repeatedly that if the nuclear deal were not immediately approved by the Congress, the U.S. would lose the benefit of this trade.

But in reality, we already have strong and growing trade ties with India, and there is no reason to believe that this will be substantially altered by the nuclear cooperation agreement. Furthermore, I believe that the Bush Administration has sought to use this false economic argument to rush Congressional approval.

The truth is that since 2000, Indian exports to the United States have doubled, and U.S. exports to India have almost tripled. In the last 30 years, total bilateral trade has grown almost 8-fold, an enormous increase. In 2006, our total bilateral trade topped $31.9 billion, growing at a whopping 18.9% over the previous year. Even during the worst moments of the U.S.-India relationship, for instance after the 1974 and 1998 Indian nuclear tests, trade continued to grow at rapid rates.

The bottom line is that trade between the United States and India will continue to grow, regardless of the ultimate outcome of the nuclear cooperation agreement.

The U.S.-India strategic relationship

The Bush administration has repeatedly called the U.S.-Indian relationship a ``Strategic Partnership.'' I am a strong supporter of India, and I believe that the United States and India must, and will, continue to have a relationship marked by mutual cooperation and shared values. But I do not believe, as the Bush Administration has essentially argued, that India will become a subservient partner to the United States.

The reality is that India has always followed a fiercely independent foreign policy, and will certainly continue to do so. In fact, Indian Prime Minister Manmohan Singh told his Parliament in August of 2006 that, ``Our sole guiding principle in regard to our foreign policy, whether it is on Iran or any other country, will be dictated entirely by our national interest.''

The first major test of the U.S.-India strategic partnership is the question of how to deal with Iran's nuclear program. If lndia really were a steady strategic partner to the United States, New Delhi would be actively supporting the U.S. in halting the Iranian nuclear program. But instead of assisting the U.S. with Iran, India's longstanding strategic relationship with Iran has only grown stronger.

Let me list some of India's actions vis-a-vis Iran which have led me to conclude that India is not fully and actively supporting United States' efforts to sanction and isolate Iran for its ongoing nuclear program: India has repeatedly defended Iran's nuclear program; India has developed intelligence outposts in Iran near the Pakistani border; India and Iran have held two joint naval exercises, in March 2003 and March 2006; The 2003 Iranian-Indian New Delhi Declaration explicitly raised concerns about U.S. unilateralism in Iraq; Indian scientists have been sanctioned by the U.S. for WMD-related transfers to Iran, most recently in July 2006; India is pursuing an $8 billion gas pipeline from Iran. India has committed to help Iran build a Liquefied Natural Gas terminal; the two countries established the Indian-Iranian Joint Working Group on Counter Terrorism in 2003; and India is developing a port in south-east Iran which analysts believe will be a naval base.

The other major test of the U.S.-India strategic partnership is how to address the rise of China. Some supporters of the nuclear deal will admit, in their more candid moments, that the real driver behind this enormous change is a desire on the part of the Bush Administration that India become the U.S. ``hedge'' to contain China's rise in Asia.

But India has no desire for conflict of any kind with China, and India will not act as an American proxy. To put it simply, it is not in India's interest to risk poor relations with China. China is India's second largest trading partner. India and China signed an energy agreement to prevent them from bidding for the same resources and driving up prices, in January 2006. Total bilateral India-China trade has grown at over 30% every year since 1999, even faster than India- U.S. trade has grown.

China is simply too valuable as a partner, and too potentially threatening as an enemy, for India to seek anything but positive relations. And all the armchair strategists who have been trying to sell the idea of India as an American proxy against China are absolutely foolish. It's not going to happen.

I am not arguing that India cannot or should not have an independent foreign policy. I'm arguing it inevitably will chart its own course, as any powerful nation would be expected to do. My colleagues should be realistic about what we can expect from India in terms of support for U.S. foreign policy priorities. The Bush Administration seems to think that by granting India international nuclear trade we are locking them into a permanent foreign policy alliance with the U.S. That is absolutely naive, and I believe that the Bush Administration's strategic calculation that they are getting a permanent ally in exchange for a wholesale change of international nonproliferation rules is simply wrong.

U.S. Violation of the Nuclear Non-Proliferation Treaty

Article I of the Nuclear Non-Proliferation Treaty, of which the United States is a signatory, states that, ``Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.'' However, the U.S.-India nuclear agreement could put the United States in violation of this central obligation, since India's nuclear weapons program is likely to both indirectly and directly benefit from the terms of civilian nuclear trade, and since the United States could therefore be said to be ``encouraging'' India's manufacture of nuclear weapons.

The non-partisan Congressional Research Service analyzed at my request the question of whether the U.S.-India nuclear agreement could violate the United States' obligations under the NPT, and identified three ways in which this could occur. First, it analyzed the ``separation plan'' under which India's civilian and military nuclear facilities will be disentangled. Second, it investigated whether U.S. de-facto recognition of lndia as a nuclear power could encourage India to continue its production of weapons. And third, it examines the most significant issue of U.S. assistance to India's weapons program: how imported nuclear fuel would free up India's domestic uranium for use in its weapons program.

Without a credible separation plan, the United States could wind up transferring technology directly into India's weapons program. The CRS analysis states:

It should be noted that while IAEA safeguards ensure that

nuclear material is not diverted, there are no procedures or

measures in place to ensure that information, technology and

know-how are not transferred from the civil sector to the

military sector. This could become a key loophole,

particularly because the separation plan places 8 indigenous

power reactors under safeguards, while leaving at least 8

indigenous power reactors outside of safeguards. Without

additional measures to prevent the transfer of personnel

or knowledge from the safeguarded program to the

unsafeguarded program, there would be little assurallce

that assistance to the safeguarded program could not

migrate to the military program.

By changing U.S. law to allow for nuclear trade with India, the United States will grant international legitimacy to India's nuclear arsenal. The CRS analysis states:

The United States is not granting de jure recognition to

India as a nuclear weapon state, because doing so would

require amendment of the NPT, a prospect that is

unattainable, according to most experts. Nonetheless, a

successful U.S. effort to gain an exemption in U.S. nuclear

cooperation law would place India in the company of only four

other nations--the United Kingdom, France, China, and

Russia--all de jure nuclear weapon states. While this may not

constitute formal recognition of India as a nuclear weapon

state, many observers believe that it legitimizes India's

nuclear weapons program, thus providing de facto recognition.

Critics of the President Bush's plan for the U.S.-India nuclear agreement long argued that allowing India to import uranium for its civilian reactors would free up its domestic fuel sources to concentrate exclusively on weapons production, giving India a vast new capacity for the manufacture of fissile material for weapons. The CRS analysis agreed with this argument, calling this indirect benefit to India's weapons program ``a clear consequence of such cooperation.'' The analysis continues:

Secretary Rice seemed to be suggesting that having more

uranium would not encourage or assist India's nuclear weapons

program because it already had the fissile material it

needed. If, as Secretary Rice suggests, the military

requirements are dwarfed by civilian requirements, then

finding international sources for civilian requirements could

result in a windfall for the weapons program.

It is my strong belief that the NPT is the single most important international security agreement in existence. Furthermore the United States has a unique responsibility as the sole remaining superpower, as well as the driving force behind the drafting of the NPT in the middle of the last century, to exert constant vigilance on behalf of this extraordinarily significant treaty. If the United States does not strictly adhere to its NPT commitments then we are likely to see a dramatic and dangerous deterioration in the strength and stability ofthe Treaty.

Inconsistencies between the Hyde Act and the ``123'' Agreement

The Hyde Act of 2006 set numerous requirements for the negotiation of the technical bilateral agreement for nuclear cooperation, known as the ``123 Agreement'' in reference to Section 123 of the Atomic Energy Act of 1954. However, the Bush Administration did not meet these requirements, and the 123 Agreement is therefore inconsistent with the law.

The most important inconsistencies between the Hyde Act and the 123 Agreement are: nuclear testing and the termination of U.S. nuclear supply; assurances of nuclear supply to India in the case of supply ``disruption;'' and, the reprocessing of U.S.-origin nuclear material.

Nuclear Testing and the Termination of U.S. Nuclear Supply

The Atomic Energy Act requires, and the Hyde Act reinforces, that nuclear trade with any nation will terminate if that nation conducts a nuclear test. In addition, U.S. law provides that the United States may demand the return of all transferred nuclear materials and technology in case of a test.

Almost all other 123 Agreements state these requirements and rights explicitly. But the U.S.-India 123 Agreement doesn't. The India 123 Agreement provides no detail at all on the kinds of actions that will result in termination. Given the difficult disagreements in the past

with India on nuclear rights and responsibilities, this is not wise. In addition, the India 123 Agreement does not state that the United States has the right to demand the return of all transferred nuclear materials and technology if India conducts a test.

Because the 123 Agreement lacks these specific statements of the consequences of an Indian nuclear test, many in India argue that they not only have an unfettered right to test their nuclear weapons, but that no consequences will follow if they do. This is not what Congress intended with the Hyde Act, which specifically requires that cooperation end if India tests a nuclear bomb.

Assurances of Nuclear Supply to India in the Case of Supply

``Disruption''

The 123 Agreement contains two unprecedented clauses with respect to assuring India a supply of nuclear fuel under all scenarios, even if they test a bomb.

First, the 123 Agreement commits the United States to ``support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of the reactor.'' This means that the United States will assist India in stockpiling uranium from international suppliers. If supply was terminated for any reason, even if India failed to uphold its nonproliferation commitments, such as by testing a nuclear bomb, India could use this stockpile of fuel as a cushion against another supply cutoff. This clause flies in the face of the Hyde Act, which states that any fuel reserve should not exceed normal reactor operating requirements.

Second, if India should ever have a fuel supply disruption, the U.S. is to convene ``a group of friendly supplier countries . . . to pursue such measures as would restore fuel supply to India.'' Again, this would take place in the event of any disruption of supply, including due to India exploding a nuclear bomb.

This renders toothless the requirement in the Atomic Energy Act to stop nuclear exports to a country that tests a nuclear weapon. Will India care that U.S. cooperation is cut off if the U.S. itself is turning around and asking other countries to step in and provide the nuclear fuel to India? Would you think twice about illegally parking if you know your ticket will be paid for?

The Hyde Act specifically states that the United States is to seek to prevent other countries from providing India with nuclear material or technology if our own cooperation is cut off. The 123 Agreement should say the same thing, but it doesn't.

Reprocessing U.S.-origin nuclear material

As a matter of policy, the United States doesn't transfer enrichment, reprocessing, or heavy water production equipment to any state because of the dangerous utility of those technologies for nuclear weapons programs. In fact, in February 2004, President Bush said that ``enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes.'' And he had it right!

And reinforcing the point, the Hyde Act states that, ``Given the special sensitivity of equipment and technologies related to the enrichment of uranium, the reprocessing of spent nuclear fuel, and the production of heavy water,'' the United States will work to further restrict the transfers of such technologies to India.

Yet, the U.S. has given India the right to reprocess our nuclear material, and promised cooperation in reprocessing technologies! How will the U.S. be able to stop other countries from transferring reprocessing technologies and other sensitive technologies if we are making such transfers ourselves?

The fact of the matter is that President Bush negotiated an agreement with India that does not meet the requirements of U.S. law, on testing, on assurances of supply, and on reprocessing.

Problems relating to International Atomic Energy Agency Safeguards

The Hyde Act of 2006 set numerous requirements relating to India's negotiations and declarations to the International Atomic Energy Agency (IAEA). While a number of these key requirements have not met, President Bush made a formal declaration that all of the Hyde Act requirements were fulfilled.

Separation plan

Section 104(b)(1) of the Hyde Act requires the President to determine that India must provide to the United States and the IAEA ``a credible plan to separate civil and military nuclear facilities, materials, and programs.'' However, the separation plan that India has provided is not credible from a nonproliferation perspective, since it will not prevent all materials from moving between the civilian and military spheres.

Under the separation plan, India will be allowed to use domestically produced heavy water to moderate its safeguarded civilian reactors. However, the domestically produced heavy water itself will not be safeguarded, and safeguards will be removed from old heavy water as it is removed from the reactor in exchange for new heavy water. This creates a serious problem within the separation plan, as the old heavy water will contain tritium, a nuclear byproduct material which is used to boost the yield of nuclear weapons.

India will be able to use tritium generated in its ``safeguarded'' reactors to boost the yield of its nuclear weapons, making the civilian-military separation plan utterly meaningless from a nonproliferation perspective. Yet, on September 10, 2008, President Bush made a formal declaration that ``India has provided the United States and the IAEA with a credible plan to separate civil and military nuclear facilities, materials, and programs.''

India's declaration to the International Atomic Energy Agency

Section 104(b)(1) of the Hyde Act requires the President to determine that:

India has ``filed a declaration regarding its civil facilities and materials with the IAEA.''

However, India has not filed such a declaration with the lAEA, and has stated that it will not do so until after the 123 Agreement has been approved.

Yet, on September 10, 2008, President Bush made a formal declaration that, India . . . has ``filed a declaration regarding its civil facilities and materials with the IAEA.''

India's progress towards concluding an Additional Protocol

Section 104(b)(3) of the Hyde Act requires the President to determine that:

India and the IAEA are making substantial progress toward

concluding an Additional Protocol consistent with IAEA

principles, practices, and policies that would apply to

India's civil nuclear program.

The ``substantial progress'' required by the Hyde Act has simply not occurred. India and the lAEA have met just one time to discuss negotiations of an Additional Protocol, and one concept paper has been exchanged. No one knows what the final Additional Protocol will look like, if indeed one is ever successfully negotiated.

Yet, September 10, 2008, President Bush made a formal declaration that, ``India and the IAEA are making substantial progress toward concluding an Additional Protocol consistent with IAEA principles, practices, and policies that would apply to India's civil nuclear program.''

Problems relating to the Nuclear Suppliers' Group Waiver

The Hyde Act of 2006 set numerous statements of United States policy relating to the negotiation of a waiver from the Nuclear Suppliers' Group (NSG) guidelines for international nuclear trade with India. However, the Bush Administration ignored many of these statements of policy, and in at least one instance aggressively pursued a policy which was directly contradicted by the Hyde Act.

Termination of NSG supply in response to violations

Section 103(a)(4) of the Hyde Act states that it is the policy of the United States to:

Strengthen the NSG guidelines and decisions concerning

consultation by members regarding violations of supplier and

recipient understandings by instituting the practice of a

timely and coordinated response by NSG members to all such

violations, including termination of nuclear transfers to an

involved recipient, that discourages individual NSG members

from continuing cooperation with such recipient until such

time as a consensus regarding a coordinated response has been

achieved.

However, the United States did not seek to establish strengthen the NSG guidelines to require a termination of NSG supply to a recipient states in the event of a violation of supplier and recipient understandings. In fact, many NSG member states sought to strengthen the NSG guidelines in this manner but could not because opposition by the Bush Administration. In this case the Bush Administration actively worked to thwart the policy of the United States as set by Congress in the Hyde Act.

Enrichment and reprocessing restriction

Section 103(a)(5) of the Hyde Act states that it is the policy of the United States to:

Given the special sensitivity of equipment and technologies

related to the enrichment of uranium, the reprocessing of

spent nuclear fuel, and the production of heavy water, work

with members of the NSG, individually and collectively, to

further restrict the transfers of such equipment and

technologies, including to India.

However, the United States did not seek to strengthen NSG guidelines to restrict the transfers of enrichment and reprocessing technologies, despite having sought such a restriction for four years. In 2004, President Bush declared in a major speech on nonproliferation that achieving a historic international restriction on transfers of enrichment and reprocessing was one of his administration's highest priorities. For the next four years, the Bush Administration sought to achieve such a restriction at the NSG, yet abandoned this issue during the negotiations regarding India.

Universalizing U.S. termination triggers

Section 103(a)(6) of the Hyde Act states that it is the policy of the United States to:

Seek to prevent the transfer to a country of nuclear

equipment, materials, or technology from other participating

governments in the NSG or from any other source if nuclear

transfers to that country are suspended or terminated

pursuant to this title, the Atomic Energy Act of 1954 (42

U.S.C. 2011 et seq.), or any other United States law.

However, the United States did not seek to amend NSG guidelines to ensure that all international nuclear supply to India would be terminated if U.S. law required U.S. nuclear trade to be terminated. Such a rule would not only have significantly strengthened international nonproliferation policy, but it would have protected American firms from the possibility of being the only firms in the world barred from trade with India.

Madam Speaker, this bill, and the nuclear cooperation agreement with India which it approves, will do great damage to the international nuclear nonproliferation regime. Can we afford to undermine the nonproliferation rules at the very moment when Iran is speeding toward a viable nuclear capability, when North Korea is redoubling its intransigence and throwing out IAEA observers, and when Venezuela is requesting nuclear cooperation from Russia? No, we cannot. I urge my colleagues to think carefully about the implications of this bill for international stability and U.S. security, and vote against H.R. 7081.

Mr. President, I am standing in today, my colleagues should be aware, for Senator Biden, who is the chairman of the Foreign Relations Committee. As most of the world is aware, he is otherwise occupied.

As the ranking Democrat next to him, I have been asked to assume the responsibility of bringing this matter before the Senate. Senator Biden has spent a great deal of time on this issue, along with his friend and colleague, the former chairman, Senator Lugar, as have other Members as well.

Today we will talk about this issue, the importance of it, the action taken by the House of Representatives under the leadership of Howard Berman, the chairman of the Foreign Affairs Committee of that body.

I have a letter from the Secretary of State, as well as other supporting information, that leads us to the conclusion that this bill ought to be passed, and passed, I hope, overwhelmingly by this body because of the message it would send not only to the people and the Government of India but others as well about the direction we intend to take in the 21st century about this matter.

I will share some opening comments, and I will turn to my colleague, Senator Lugar, for any comments he has, and then Senator Dorgan and Senator Bingaman--at least two people I know who have amendments they wish to have offered. I know they have comments and thoughts they have to share on this subject matter as well.

In addition to Senator Lugar and Senator Biden on the committee, there are other Members as well who expressed a strong interest in the subject matter--not necessarily an agreement with this proposal but nonetheless should be recognized for their diligence in paying attention to the issue. Senator Feingold of Wisconsin and Senator Barbara Boxer of California have demonstrated a real interest and concern about this issue.

I want to speak for a few minutes about Representative Henry Hyde. I was elected with him in 1974 to the House of Representatives. He is no longer with us, but nonetheless he made a remarkable contribution as a Republican Member of the House of Representatives, not the least of which was this one, on the Hyde amendment, which will be discussed, I presume, at some length today as we talk about this bill, H.R. 7081, the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Agreement.

I rise to urge passage of this bill, approving the United States- India peaceful nuclear cooperation agreement. On this past Saturday, the House of Representatives passed this bill by a margin of 298 to 116, a resounding vote in support for this agreement.

This agreement with India is as important as it is historic. This bill enables the United States and India to chart a new course in relations between our two great democracies.

There are compelling geopolitical reasons to move forward with this relationship. India has become a major actor in the world.

Why don't we put up this map. One of the things I thought I would do is put up a map. I know everyone knows exactly where these countries are located, but I think sometimes it can be helpful to remind people of the tremendous importance of India's location in Asia, sharing borders with many countries--certainly China and Pakistan and in close proximity with Afghanistan, a very fragile part of the world.

If you look at this map--I will leave it up for a good part of the day--you will appreciate, aside from the agreement itself, the strategic importance of this relation for the United States.

India has become a major actor in the world, and it increasingly sees itself in concert with other global powers, rather than in opposition to them.

Indian Prime Minister Singh, who visited Washington just last week, has devoted energy and political courage in forging this agreement, and in seeking approval for it in India. Put simply, he has placed himself and his political party on the line.

In India, the political symbolism of the agreement is extremely important. It addresses the most divisive and long-standing issue between our two countries dating back to 1974. Most important, the agreement addresses India as an equal--a point that looms large in India, where there are strong memories of a colonial past and of tensions with the United States during the Cold War.

Some of the debate in India focused on whether the agreement with the United States would hamper India's nuclear weapons program. But much of the give-and-take was really about a more basic question--whether it was really time for India to work cooperatively with Western countries. Reaching an accord on nuclear status has been wrenching for India, despite the favorable terms that some say India obtained.

This agreement is indicative of a new era in Indian foreign policy-- an era in which India will see all the world's powers as potential partners in efforts to address its own needs and the needs of others. I believe that this new era will bring increased stability and progress to South Asia. I see the bill before us as approving far more than just a nuclear agreement. Among other things, it will set the stage for a stronger U.S.-India relationship, which will be of critical importance to our country in the 21st century.

The Committee on Foreign Relations held an in-depth hearing on the U.S.-India agreement last month. The committee, along with the House Committee on Foreign Affairs, worked closely with the administration to address technical concerns expressed about the agreement. This extraordinary consultation resulted in a bill that will improve U.S. implementation of the accord and assure that nuclear non-proliferation remains at the core of U.S. foreign policy. Our committee approved a bill identical to the House-passed bill by a vote of 19-to-2. I commend chairman Howard Berman in the House and Senator Lugar for his leadership as well.

This agreement is not a partisan issue. President Clinton launched the initiative, and President Bush pushed it to fruition. It had strong support on both sides of the aisle in 2006, when we voted on the Henry J. Hyde Act, establishing the underlying principles and requirements of this accord. Indeed, 85

members of the Senate supported the Hyde Act, and only 12 voted against it. I believe the resulting agreement has strong support today.

I mentioned Henry Hyde arrived in Congress in 1975, along with some 74 of us elected in that fall of 1974. I had a wonderful relationship with Henry Hyde. We served together in the House and then during our respective tenure in that body, and then in this body. As I mentioned earlier, Henry Hyde was a remarkable Member of Congress and accomplished many things. He was controversial in some ways but a person of deep conviction, deep personal convictions, and he brought that conviction to everything he engaged in as a matter of public policy.

We probably would not be in as strong a position today to talk about this agreement had it not been for the Hyde Act. So I would be remiss this morning in discussing this if we didn't pay tribute to Henry Hyde and his contribution to this very issue. I want the record to reflect my appreciation for the work this man did on behalf of all of us by drafting and supporting and insisting upon the adopting of the Hyde Act.

Mr. President, throughout our work on this agreement we have sought to address concerns expressed in the United States as well as in India. Some nuclear nonproliferation experts have voiced a fear that it would lead India--and then India's neighbors--to increase the production of nuclear weapons. Some experts have warned that giving India the right of peaceful nuclear commerce, despite its refusal to sign the Nuclear Non-Proliferation Treaty, could undermine the world's willingness to abide by that vital treaty and to enforce compliance with it. We have been consistently vigilant to such risks, and the Hyde Act and this bill give us the tools to remain so in the future.

The process that led to the U.S.-India agreement was undertaken with an eye to achieving progress on nonproliferation issues. Pursuant to a declaration issued in July 2005 by President Bush and Prime Minister Singh, it is important to note the following:

India has improved its export control law and regulations;

India has moved to adhere to the guidelines of the Nuclear Suppliers Group and the Missile Technology Control Regime;

India has affirmed that it will not transfer equipment or technology for uranium enrichment or spent fuel reprocessing to any country that does not already have a full-scale, functioning capability;

India has reaffirmed, both to the United States and to the Nuclear Suppliers Group, its unilateral moratorium on nuclear testing;

India has initialed, and intends to sign, a safeguards agreement with the IAEA;

India has begun to negotiate an Additional Protocol to that safeguards agreement; and

India will bring under IAEA safeguards over a dozen existing or planned nuclear facilities that were not previously subject to safeguards.

The bill before the Senate provides additional measures that guide the implementation of the agreement, and they are worthy of note.

This agreement reaffirms that our approval of the agreement is based on U.S. interpretations of its terms. In other words, it reaffirms that President Bush's assurances about fuel supplies are a political commitment--and are not legally binding.

It requires the President to certify that approving this agreement is consistent with our obligation under the Nuclear Non-Proliferation Treaty not to assist or encourage India to produce nuclear weapons.

Before the Nuclear Regulatory Commission can issue any licenses under this agreement, India's safeguards agreement with the IAEA must first enter into force. In addition, India must file a declaration of civilian nuclear facilities under the safeguards agreement that is not ``materially inconsistent'' with the separation plan that India issued in 2006. We know that there will be some changes, because the 2006 plan envisioned safeguards beginning that year--rather than 2 years later. But this guards against a declaration that flatly contradicts India's promises.

The bill also requires prompt notification of the Foreign Relations Committee if India should diverge from its separation plan in implementing its safeguards agreement.

The bill establishes a procedure for congressional review--and possible rejection--of any ``subsequent arrangement'' under the agreement that would allow India to reprocess spent nuclear fuel that was derived from U.S.-supplied reactor fuel or produced with U.S.- supplied equipment. Article 6 of the India agreement anticipates such a subsequent arrangement if India builds a new reprocessing facility dedicated to its civilian nuclear power sector. Congress should have a special role in this, because spent fuel reprocessing can produce weapons-grade plutonium. This is an improvement over current law, which allows such arrangements to take effect 15 days after public notice is given in the Federal Register.

The bill requires the President to certify that it is U.S. policy to work in the Nuclear Suppliers Group to achieve further restrictions on transfers of enrichment and reprocessing equipment or technology.

The bill also directs the President to seek international agreement on procedures to guard against the diversion of heavy water from civilian to military programs. The India agreement has protections for heavy water that the United States may supply, or that is produced with U.S.-supplied equipment. We need to get supplier countries to adopt similar standards. This was the subject of some lengthy conversation at the committee hearing on this very matter, talking about the heavy water issue and what can be produced by that. I left the hearing confident that the administration intends to pursue these matters very aggressively.

The bill requires regular reporting on the executive branch progress in its efforts on enrichment and reprocessing limits and protecting against heavy water diversion.

That is a lot to consume. I will be happy to make this available to my colleagues to review--staff have worked on this very diligently over the last number of years--to respond to any Member or staff member about any of this. It is somewhat complicated when you get into the issue of heavy water and physics. Nonetheless, there are matters I want the Members to be confident about when they consider their vote on this very important bill.

So, again, I wish to thank the administration, and I will ask unanimous consent, if I may--this is a letter which we received from the State Department, from Secretary of State Condoleezza Rice, expressing the strong support of the administration for this agreement.

I ask unanimous consent that this letter be printed in the Record.

As I mentioned earlier, of course, I'd like to express my gratitude to Senator Biden for his remarkable work on this effort, along with Senator Lugar. Obviously, this team who has worked so closely together on so many issues, but this one is of extreme importance. Again, I urge my colleagues to be supportive of it. We have a chance to get this done.

There are those who will argue for delaying and waiting later, but I think the moment is here. Again, this is an important message to send. As I mentioned earlier, I am not sure my colleagues are aware of this, but Prime Minister Singh showed remarkable courage as the Prime Minister of that country in forging this agreement. I think our response to it is important--not that we ought to sign on to it for that reason--but it is important, how important this relationship is.

Again, I draw the attention of my colleagues to this map behind me and the central role, geographically, this great and mature democracy holds in this part of the world, where in many cases there is something far less than a strong and mature democracy. To have a good, strong relationship with this great country in this century will be of critical importance, I believe, to our safety as a nation and the safety of mankind.

So this agreement transcends a bilateral relationship. It goes far deeper than that, reaches far broader than the boundaries of two countries separated by the great distance but allows us, for

the first time in some 35 years, to once again grow closer together as two greet democracies.

The tension between our countries has been there for these past 35 years. Tonight we will have an opportunity to put that behind us and to build a new relationship.

For that reason, this agreement also has great significance and import.

The Secretary of State,

Washington, October 1, 2008.

Hon. Harry Reid,

U.S. Senate.

Dear Senator Reid: I am writing to express support for the

``United States-India Nuclear Cooperation Approval and

Nonproliferation Enhancement Act'' (H.R. 7081). I very much

appreciate your consideration of this important bill within

such an extraordinary timeframe. We would not be asking for

such exceptional action if we did not believe it was

necessary to complete an initiative on which both the

Administration and Congress have worked very hard, and on a

thoroughly bipartisan basis, since 2005.

The U.S.-India nuclear agreement marks the culmination of a

decade-long process. Two successive Administrations have

sought to improve U.S.-India relations and adapt American

policy to India's emergence on the international stage. For

the United States, passage of this legislation will clear the

way to deepen our strategic relationship with India, open

significant opportunities for American firms, help meet

India's surging energy requirements in an environmentally

friendly manner, and bring India into the global nuclear

nonproliferation mainstream.

I encourage you to pass H.R. 7081 without amendment. The

current bill advances the U.S.-India relationship while

enhancing nonproliferation efforts worldwide. Amendments

would unnecessarily jeopardize the careful progress we have

achieved with India at a time when I believe it is important

for us to seize the significant momentum we have created in

the U.S.-India relationship.

I understand that some Senators have questions about the

impact of an India nuclear test on this initiative. We

believe the Indian government intends to uphold the

continuation of the nuclear testing moratorium it affirmed to

the United States in 2005 and reiterated to the broader

international community as recently as September 5, 2008. Let

me reassure you that an Indian test, as I have testified

publicly, would result in most serious consequences.

Existing in U.S. law would require an automatic cut-off of

cooperation, as well as a number of other sanctions, if India

were to test. After 60 continuous session days, the President

could waive the termination of cooperation if he determined

that the cut-off would be ``seriously prejudicial'' to

nonproliferation objectives or ``otherwise jeopardize the

common defense and security.'' We believe existing law

strikes the proper balance in responding to a nuclear test,

and it is consistent with the approach adopted by the Nuclear

Suppliers Group when it adopted the exception for India in

early September.

Please allow me also to reiterate what I told Congress on

April 5, 2006, when this same question arose: ``We've been

very clear with the Indians . . . should India test, as it

has agreed not to do, or should India in any way violate the

IAEA safeguard[s] agreements to which it would be adhering,

the deal, from our point of view, would at that point be

off.''

Encouraging India's sustained commitment to its moratorium

on nuclear testing will be important to the strategic

partnership the United States now seeks to build with India.

Congress and the Administration have carefully addressed

testing concerns in the Hyde Act, the U.S.-India 123

Agreement, and the testimony of Administration officials.

We have an unprecedented and historic opportunity before us

to help shape the 21st century for the better. With this

legislation in its current form, the Senate can help ensure

that the United States and India complete the journey we

began together three years ago. You can also help ensure that

U.S. industry--just like its international counterparts--is

able to engage with India in civil nuclear trade.

Sincerely,

Condoleezza Rice.

Mr. President, I yield time to the Senator from North Dakota.

Mr. President, I inquire of my colleague from North Dakota, is it the intent of the Senator to offer an amendment at this time or is it later this morning, or what is my colleague and friend's plan?

OK.

Mr. President, in his absence, why don't we wait. My plan would be to have you do that and make your statements, and I will respond to them at the appropriate time.

So I suggest the absence of a quorum.

Mr. President, I have a consent agreement that would combine the two amendments. I ask unanimous consent that the order with respect to H.R. 7081 be modified to provide that the Dorgan and Bingaman amendments be combined into one amendment; that all debate time specified previously remain available and the amendment be subject to the 60-vote threshold, as provided under the previous agreement.

Mr. President, I wish to congratulate Senator Dodd for his leadership in the Foreign Relations Committee as we took up this historic agreement. He and I both congratulate Prime Minister Singh, our President, President Bush, and Secretary Rice for their advocacy.

This is, indeed, a historic day and a historic moment in the relationship between the United States and India, a very important partnership for world peace.

Today we consider the United States-India Peaceful Nuclear Cooperation Agreement. This is one of the most important strategic diplomatic initiatives undertaken in the last decade. By concluding this pact, the United States has embraced a long-term outlook that will give us new diplomatic options and improved global stability.

The legislation we are considering approves the 123 Agreement that will allow the United States to engage in peaceful nuclear cooperation with India, while protecting U.S. national security and nonproliferation efforts, as well as congressional prerogatives.

It is an opportunity to build a strategic partnership with a nation, India, that shares our democratic values and will exert increasing influence on the world stage.

Last Saturday, September 27, the House of Representatives voted 297 to 117 to approve this agreement. Senate approval would be the capstone to more than 3 years of efforts in the United States and India and around the world.

By embracing this agreement, India's leaders are seeking to open a new chapter in the United States-India relations and reverse decades of fundamental disagreement over the nonproliferation regime. India has created a new national export control system; promised to maintain its unilateral nuclear testing moratorium; pledged to work with us to stop the spread of enrichment and reprocessing technologies; proposed to separate its civilian and military facilities and committed to place its civilian facilities under IAEA safeguards.

If approved, an agreement will allow 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.

The benefits of this pact are designed to be a lasting incentive for India to abstain from further nuclear weapons tests and to cooperate closely with the United States in stopping proliferation.

The 123 Agreement was submitted by President Bush on September 10, 2008. Last week, the Foreign Relations Committee voted 19 to 2 to report this bill, approving the agreement to the full Senate. The bill the House voted on Saturday was almost identical to the bill approved by the Senate Foreign Relations Committee.

Now, 2 years ago, the Senate voted 85 to 12 to approve legislation that set the parameters for the 123 Agreement we are considering today. The House voted 359 to 68 to approve companion legislation. At the time, the Foreign Relations Committee undertook an extensive review of the agreement and its context. We held three public hearings with testimony from 17 witnesses, including our 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, the intelligence community, and the National Security Council.

I submitted 174 written questions for the record to the Department of State on details of the agreement, and I posted those answers on my Web site. The 2006 legislation set the rules for today's consideration of the 123 Agreement between the United States and India.

Unlike the administration's original proposal, the Hyde Act neither restricted nor predetermined congressional action on the 123 Agreement.

We expect India to move quickly to negotiate a new safeguards agreement with the IAEA and then to seek consensus from the Nuclear Suppliers Group in accordance with the Hyde Act. Unfortunately, domestic political divisions in India led to a delay of almost 2 years.

Final action on these two tasks was not completed until earlier this month. India engaged and obtained the approval of a new safeguards agreement with the IAEA on August 1. Nuclear Suppliers Group consensus was received on September 6. Since that time, the administration and both Houses of Congress have worked diligently to evaluate the agreements, answer questions from Members of Congress, and move the process forward.

The Hyde Act required the President to report to Congress on whether India had met seven determinations which are as follows: India has provided the United States and the IAEA with a separation plan for its civilian and military facilities and filed a declaration regarding civilian facilities with the IAEA; India has concluded all legal steps prior to signature for its safeguards agreement in perpetuity with the IAEA; India and the IAEA are making substantial progress in completing

an additional protocol; India is working actively with the United States to conclude a fissile material cutoff treaty; India is working with and supporting the United States to prevent the spread of enrichment and reprocessing technology; and, India is taking the necessary steps to secure nuclear materials and technology; and, the Nuclear Suppliers Group has decided by consensus to permit supply to India of nuclear items under an exception to their guidelines.

Now, 2 weeks ago at a Foreign Relations Committee hearing, Under Secretary of State for Political Affairs Bill Burns, Acting Under Secretary Joan Rood, and the lead U.S. Negotiator, Richard Stratford, provided detailed analysis of the agreement. Members were able to examine the documents accompanying the 123 Agreement and ask questions of witnesses about the Hyde Act, the 123 Agreement's text, the new safeguards agreement, and the Nuclear Suppliers Group decision.

I am convinced the President has met all the required determinations under the Hyde Act. However, the congressional review of the agreement demonstrated that two issues required provisions in the legislation before us.

First, India has not identified in the text of its IAEA safeguards agreement those facilities it will place under safeguards. India has provided a plan for the separation of facilities from its nuclear weapons program to the IAEA, but the plan is nonbinding and appears outdated.

This is not what Congress understood would happen when we approved the Hyde Act. Indeed, in 2006, the administration requested bill language calling on India to file ``a declaration regarding its civil facilities with the IAEA.''

The safeguards agreement containing that declaration was to enter into force before submission of the 123 Agreement to Congress.

Under the Hyde Act, India and the IAEA must conclude:

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 . . . 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 purpose of this complex provision was to secure the most complete version possible of the safeguards agreement for congressional review. We intended that it be submitted as part of the Presidential determination and waiver report required by the Hyde Act. Unfortunately, by not naming the facilities in the safeguards agreement, there is an open question as to when India will act. This has legal implications because the United States is prohibited by law and our NPT obligations from having nuclear trade with any facility not named in India's safeguards agreement.

In response to this issue, Section 104 of the bill before us requires that licenses may not be issued by the Nuclear Regulatory Commission for transfer of nuclear fuel, equipment and technology until after the President determines and certifies to Congress that, one, the safeguards agreement approved by the IAEA Board of Governors on August 1, 2008, has entered into force; and, two, India has filed a declaration of facilities that is not materially inconsistent with the facilities and schedules described in its separation plan.

The second issue that required a new provision in this legislation is India's desire to reprocess spent nuclear fuel burned in its reactors, including fuel from the United States. Reprocessing can result in the separation of plutonium, which can be used in a nuclear weapon.

The United States permits some NPT members with long histories of strong compliance with the IAEA agreement to reprocess U.S.-origin spent nuclear fuel through a process called programmatic consent.

During negotiations on the 123 Agreement, India requested programmatic consent and the United States agreed. However, the United States made programmatic consent contingent on India establishing a dedicated facility to carry out the reprocessing and an agreement on reprocessing procedures in this new facility.

During the formulations hearings, I asked Acting Under Secretary John Rood if the arrangement that would be negotiated with India to permit reprocessing would be submitted to Congress for review.

Mr. Rood stated: `` . . . yes, that's required under the Atomic Energy Act.''

Permitting spent nuclear fuel from the United States to be reprocessed in India is a complex matter that requires careful implementation. The bill before us today does not block negotiations on such arrangements with India. However, the bill does require a future administration to submit such a ``subsequent arrangement'' to Congress which would have the power to pass a resolution of disapproval.

By addressing these two important matters, I believe this legislation improves congressional oversight for future nuclear cooperation with India and corrects a problem related to the new safeguards agreement India has with the IAEA.

In conclusion, I strongly urge my colleagues to approve the United States-India agreement. The national security and economic future of the United States will be enhanced by a strong and enduring bipartisan with India.

With a well-educated middle class that is larger than the entire U.S. population, India can be an anchor of stability in Asia and an engine of global economic growth.

Moreover, the United States has a strong interest in expanding energy cooperation with India to develop new technologies, cut greenhouse gas emissions, and prepare for declining global fossil fuel reserves.

The United States' own energy problems will be exacerbated if we do not forge energy partnerships with India, China, and other nations experiencing rapid economic growth. This legislation will promote much closer United States-Indian relations while preserving the priority of our nonproliferation efforts. We should surely move forward now.

I thank the Chair and yield the floor.