India-US Unclear Deal
[Click on the headline for the "agreement between the Government of India and the IAEA for the application of safeguards to civilian nuclear facilities (including the ‘Additional Protocol’)"]
Every party to the dispute has been economical with the truth about the civil nuclear cooperation deal between the two countries since July 2005
_______________
Surajit Dasgupta
_______________
How much nuclear fuel will India get to use for civilian purposes if the 123 Agreement (ref: Appendix I) materialises? And by what per cent will India’s use of nuclear energy for civilian purposes increase if the deal is ‘operationalised’ (an English-sounding word coined by the country’s communists)? 5%? 7%?
Shady Congress:
For the last three years, the advocates of the deal have been making it appear like 50% or 70%. The zeal of the Congress-led UPA is all too comprehensible to merit an explanation. But since the journalists arguing in favour of the deal are seasoned enough, they must have something else in mind. So, is the very concern that is shared by China and Pakistan a cause to merry for these Indian journalists? In clearer words, is the fear of India’s detractors — that this country will manage to sneak fuel meant for civilian use into its military — a clandestine plan or motive that some Indian journalists want the Government of India to execute? If not, what was the government’s problem in showing the draft agreement with the International Atomic Energy Agency to the Left to seek its consent? Now, of course, it needs the approval of the Board of Governors of the IAEA to do so after the international body has accepted the draft. But before 9 July 2008, the IAEA could not have stopped India, a member country, from circulating within its sovereign territory a draft that is supposed to turn into an international agreement before it reaches them for ratification. So, did the government fear India’s enemies more than the left or the public — the enemies that, on knowing some ‘contentious’ proposals in the draft, could have put obstacles in the way of an approval of India’s de facto nuclear state status by the Nuclear Supplies Group?
Them-versus-US policy:
The US that is supposed to bail India out of the Tarapore nuclear fuel crisis, itself has not had a nuclear facility established for the purpose of civilian exploitation since 1973. What a paradox!
Most of early atomic researches in the US focussed on developing an effective weapon for use in World War II. After the war, the US government encouraged the development of nuclear energy for peaceful civilian purposes while continuing to develop, test, and deploy new nuclear weapons. The Experimental Breeder Reactor I at a site in Idaho generated the first electricity from nuclear energy on December 20, 1951. Sixteen per cent of the world's electricity now comes from nuclear energy, 85 per cent of which is concentrated in industrialised countries. A total of 441 nuclear power plants were operational in 2005 when Bush and Singh first talked of the deal. There were also 32 nuclear reactors under construction (Nuclear Energy Institute). In the US alone, there are 103 nuclear power plants, which provide about 20 per cent of the country's electricity. But that is past.
A new nuclear power plant has not been ordered in the US since 1973. And in July 2005 while Bush was assuring Singh of nuclear fuel supply, his administration’s energy policies were simultaneously calling for a $15 billion federal subsidy to build six or seven new nuclear power plants.
Crafty cheerleaders:
A certain newspaper, while “walking the talk”, twists its questions in such a manner that the answer from even the biggest opponent of the deal sounds like being supportive of the deal. Such interviewees include former president APJ Abdul Kalam and former national security adviser Brajesh Mishra. If the agreement marks the end of the ‘nuclear apartheid’ regime led by the US since 1974, it’s too symbolic and not much substantive when one considers the reservations that many of the 45 countries, which make the NSG, may have about India getting easy access to nuclear fuel.
Shaky communists:
As for one of the opposite camps, the communist-socialist bloc, in November 2007, they took the funny stand that the government could jolly well ‘talk’ (or chat?) with the IAEA on India-specific safeguards, but it wouldn’t be allowed to execute the agreement with the US. The government said, well, it would only chat with the IAEA and do nothing more. And there indeed was nothing more that Prime Minister Manmohan Singh said on his way to Japan for the G-8 meet recently. What then caused the sudden hurry with which the left announced it would withdraw support from the government? It’s obvious that it would be awkward for the communists to be seen standing alongside the Congress, a party which the leftists have always painted as ‘abominable capitalists’, during the West Bengal and Kerala chapters of the next general elections. Therefore, that the withdrawal of support would definitely occur several months before the next general elections are due was a foregone conclusion. The country’s communists constitute that odd bloc that had once even asked the government to negotiate with the George Bush Administration on the relevance of the Henry J Hyde US-India Peaceful Atomic Energy Cooperation Act 2006 (Hyde Act), another country’s legislation, in the whole affair! This wild-goose-chase for remotely sensible arguments against the nuclear deal proved that the deal was just a red herring. The ever-increasing decibels against both the nuclear issue and the price-rise were never anything other than the communists’ preparation for an alibi to split from the government formally.
Why don’t the communists say it without mincing words that they hate America? They can’t. Not only is the word “hate” too crude for a thoroughbred communist’s taste, but it’s also too uninspiring politically. The Marxists are slowly but surely realising that anti-Americanism does not drive any part of India anymore, save some Muslim pockets whose hoodlums had demonstrated wildly during Bush’s India visit. Of course, socialism-versus-capitalism may still be an interesting debate in sub-urban West Bengal, Kerala and some university campuses of the JNU variety. And that is the debate in which the philosophy proven defunct, socialism, will be eulogised and the ghost of the 19th and 20th centuries, capitalism, will be demonised in the coming months’ road-shows organised by the leftists in the streets and lanes of their rural bastions, as a run-up to the coming elections. In such pre-ordained debates, how odd a ‘capitalist’ Congress would have looked, sharing the stage with the socialists! Never mind that a socialist Jyoti Basu once used to guzzle gallons of scotch whiskey along with a capitalist Russy Modi at the latter’s flat on the 17th floor of Tata Centre in Kolkata.
Anyway, before answering the five pointed questions the left had asked the government, which the latter did not answer, except for sharing with the former a gist of the draft to be handed over to the IAEA, a question must be asked to the left: Why is it concerned about transparency of a deal only when the other party is America? When intense negotiations were on between India and Russia before the 20-year Treaty of Peace, Friendship, and Cooperation of August 1971 was signed, why didn’t the Marxists prod then prime minister Indira Gandhi to come clean? If one argues that the pact with Russia was in India’s favour, it should be reminded that throughout the Cold War era, in the name of friendship, the then ‘socialist’ USSR acted as nothing less than unethical capitalists. India-USSR trade was always tilted in the favour of the latter. The Soviet Union even tried to monopolise certain sectors of the Indian market. That was ample evidence of Russia’s friendship with India. Still, the old India was so abnormally and impractically humble and pro-‘friendship’ that during the PV Narasimha Rao regime, it cleared the debt to Russia in rupees at an exorbitant pre-1991 rate of rouble, though the price of the Russian currency had plummeted to a minute fraction of its erstwhile value. That was an unambiguous statement of India’s friendship. Arm-twisting a friendly but weaker country from a position of power is not, India proved to Russia, our idea of friendship.
Confused backers of the left-backed coalition government:
Funnier still is the most prominent leftist newspaper of the country. Quite uncharacteristic of its reserved ways, right after the 123 Agreement was struck, the paper went on to cover the entire space allotted for two editorials to write only one — one editorial explaining how ‘great’ the agreement was. A few days later came serious disapprobation of the deal by the left parties. And the newspaper followed it up by saying, in effect, “Yes, there is cause for concern!” Taken aback by this volte-face, readers from all over south India — where its readership is mostly based — flooded its office with protesting mails. And the paper’s reticent editor, who seldom writes otherwise unlike his contemporaries in north Indian dailies, had to appear on the op-editorial page in self-defence.
Hypocritical opposition:
After the trial blasts on 13 May 1998, unlike those conducted two days before that, pro-Pokhran-II scientists and politicians (of the BJP-led NDA) had assured the nation that the second round of nuclear tests was necessary for India to attain a state where no future tests would be required to be conducted physically. Rather, they said future tests, if needed, could be accomplished through simulations. Yet, the same set of people, after reading the US Hyde Act or pretending to have read it, started howling in protest, saying “it will increase the ‘cost’ of conducting future tests” on ground, if not it would ban future (physical) tests rightaway! Whatever happened to the tall claim of “simulations”?
This reading of the Hyde Act was irrespective of the whistleblowers’ knowledge of the 123 Agreement — the final shape that the India-US nuclear cooperation deal took. What’s more important, when finally former US national security adviser and secretary of state in the Richard Nixon administration Henry Kissinger arrived in the country to persuade the BJP, prime-minister-in-the-waiting LK Advani told the ‘envoy’ that he had arrived a bit too late, and that his party had already made too many loud noises against the deal to now take an about-turn. The prime minister’s calling his predecessor Atal Bihari Vajpayee the “Bheeshma pitamah” of Indian politics was naïve too. No matter how much it itches Vajpayee to be remembered in history as a statesman, it was too late for him, too, to go against the stated position of his party.
Dodgy onlookers:
Shame on all reporters who are privy to the minutes of the Advani-Kissinger meet, none of whom reported the incident! This is as much hypocritical of the BJP’s spokespersons — both party members and the newspaper that is unofficially the party’s mouthpiece — as it is of journalists who work for other newspapers but feign friendship with the BJP to extract juicy stories from it. Sometimes, even “sources said” is something journalists are wary of writing.
Chronology:
Let’s try to find answers to the questions posed by the Leftists on the India-US civil nuclear cooperation agreement. Their questions were/are:
The government won’t tell the countrymen what exact safeguards it is pledging to the IAEA and what corrective measures India could take in case of discontinuity of nuclear fuel supply despite the agreement with the US. Still, a technical and legal probe is possible as the American legislations that can influence the deal are in the public domain.
Science:
In the fission of radioactive isotope uranium-235 (U-235) mixed with U-238, not only do we get energy but also plutonium-239 (Pu-239) as waste in the process. This makes plutonium a man-made waste product of nuclear fission, which can be used either for fuel in nuclear power plants or for bombs. In the year 2000, an estimated 310 tonnes of civilian, weapons-usable plutonium had been produced. Less than 8 kg of plutonium is enough for one Nagasaki-type bomb. Thus, in the year 2000 alone, enough plutonium was created to make more than 34,000 nuclear weapons. The technology for producing nuclear energy that is shared among nations, particularly the process that turns raw uranium into lowly-enriched uranium, can also be used to produce highly-enriched, weapons-grade uranium.
The IAEA is responsible for monitoring the world's nuclear facilities and for preventing weapons proliferation, but their safeguards have serious shortcomings. Though the IAEA is promoting additional safeguards agreements to increase the effectiveness of their inspections, the agency acknowledges that, due to measurement uncertainties, it cannot detect all possible diversions of nuclear material. This gives India a chance of manoeuvre despite its nuclear sites' transparency, which will come about as a quid pro quo against the recognition the US has offered to our nuclear state status. However, since India is devoted to non-proliferation, such a loophole can only make dodgy nuclear states like Pakistan (of Abdul Qadeer Khan infamy) happy (as and when it seeks parity from the US).
As for the prevention from Chernobyl like disasters, and also environmental degradation, before nuclear fuel is sought aplenty, Indian administration must ensure the following:
The mining of uranium, as well as its refining and enrichment, and the production of plutonium produce radioactive isotopes that contaminate the surrounding area, including the groundwater, air, land, plants, and equipment. As a result, humans and the entire ecosystem are adversely and profoundly affected. Some of these radioactive isotopes are extraordinarily long-lived, remaining toxic for hundreds of thousands of years. Presently, we are only beginning to observe and experience the consequences of producing nuclear energy.
Waste disposal: Nuclear waste is produced in many different ways. There are wastes produced in the reactor core, wastes created as a result of radioactive contamination, and wastes produced as a byproduct of uranium mining, refining, and enrichment. The vast majority of radiation in nuclear waste is given off from spent fuel rods. A typical reactor will generate 20 to 30 tonnes of high-level nuclear waste annually. There is no known way to safely dispose of this waste, which remains dangerously radioactive until it naturally decays. The rate of decay of a radioactive isotope is called its half-life, the time in which half the initial amount of atoms present takes to decay.
The half-life of Pu-239, one particularly lethal component of nuclear waste, is 24,000 years. The hazardous life of a radioactive element (the length of time that must elapse before the material is considered safe) is at least 10 half-lives. Therefore, Pu-239 will remain hazardous for at least 240,000 years. In the US, there is a current proposal to dump nuclear waste at Yucca Mountain, Nevada. The plan is for Yucca Mountain to hold all of the high level nuclear waste ever produced from every nuclear power plant in the US. However, that would completely fill up the site and not account for future waste.
Transporting the wastes by truck and rail would be extremely dangerous. Repository sites in Australia, Argentina, China, southern Africa, and Russia have also been considered.
Though some countries reprocess nuclear waste (in essence, preparing it to send through the cycle again to create more energy), this process is banned in the US due to increased proliferation risks, as the reprocessed materials can also be used for making bombs. Reprocessing is also not a solution because it just creates additional nuclear waste. The best action would be to cease producing nuclear energy (and waste), to leave the existing waste where it is, and to immobilise it.
There are a few different methods of waste immobilisation. In the vitrification process, waste is combined with glass-forming materials and melted. Once the materials solidify, the waste is trapped inside and can't easily be released.
Can India manage this massive waste disposal arrangement? Which method(s) has it thought of for its nuclear waste disposal?
India’s options for sustainable energy alternatives:
There are many alternative energy sources that are sustainable and do not pose the accident risks inherent in nuclear energy production. These sources include bio-energy: biomass, such as plant matter and animal waste, can yield power, heat, steam, and fuel.
# Geothermal: renewable heat energy can be harnessed from deep within the earth.
Indian potential – High.
# Wind: turbines turning in the air convert kinetic energy in the wind into electricity.
Indian potential - Low. The direction and intensity of winds in India are too erratic to be tapped. This option is ruled out.
# Solar: the sun's energy can be captured and used to produce heat and electricity.
Indian potential: Very high. Indian territory receives constant sunshine for 10 months of a year at a stretch, except in parts of the Northeast.
# Hydrogen: If produced by renewable sources, it can power fuel cells to convert chemical energy directly into electricity, with useful heat and water as the only byproducts. The Delhi Government is carrying out a feasibility study of hydrogen-run vehicles. However, even in the US, sceptics far outnumber the proponents of this fuel mainly because of its high inflammability. (This writer is currently working with an organisation, a wholly owned subsidiary of which has bought up the largest Canadian fuel cell company and is producing the best cells of its class. However, a fuel cell to run a car is not envisioned in the near future).
# Tidal: using the movement of the ocean to power turbines and generate electricity. This potential is good in the eastern shores of northern Andhra Pradesh and the entire coastal region of Orissa. India's western coasts have very poor tidal energy as most Arabian Sea currents head towards Iran and farther into the Middle-East.
Many more sustainable resources could be found and current resources improved if better technology were available and if the government and utilities actively promoted their development.
And for sure, uranium is not an alternative. It is not only crude oil but also uranium that acts and will always act pricey. The price of uranium cannot be steady. Effective 7 July 2008 the market price of U3O8 is $ 60.00/lb. This international spot price is six times the average price recorded over the period of the last five years. A fact that adds to the price volatility is the unpredictability of detection and extraction of usable uranium from various locations of the earth. Further, there is no guarantee whether a country rich in uranium will maintain its steady supply to other countries despite any agreement that it might have entered with the recipients in the past. Most important, uranium is not a renewable source of energy. It’s estimated that in less than a century it will be all exhausted just as petroleum may finish by less than half that period.
How the US had dodged India in 2005:
WHAT INDIA HAD INITIALLY AGREED TO:
In return, WHAT THE US HAD TILL THEN AGREED TO:
The US President George W Bush (not the US Administration) would:
The Congress-led UPA argues:
The loopholes in Congress’s arguments:
There is no way India can get international cooperation, especially for reactor fuel, without some adjustments in its policies. India has never had any problem with placing civil nuclear power reactors under the IAEA’s inspection system. Tarapur was voluntarily placed under such inspection in 1993 when India’s treaty obligations had expired. The two Russian supplied reactors near Chennai are under IAEA inspections already, and so are the Kota reactors. However, the civil nuclear power reactors built with any international cooperation component would have to be under IAEA inspection and this jeopardises our security because no fission/fusion factory in India has ever been marked as "civilian". All facilities have always been for dual use.
Separation of the two types of facilities (if the factories at all can be thus sub-classified now) involves (i) prohibitive costs, (ii) is a logistics nightmare, (iii) is practically difficult and (iv) potentially hazardous with a high risk of accidents. This would not have happened if we had the two types of factories separated right from their advent.
The new technologies, which may now be accessed from other nuclear powers, will be of no use to our defence needs, though it is here that high-end technology is needed. Nuclear exploits for civilian purposes are much simpler; and India already has good expertise in it.
It is fuel supply that we need more than the know-how for civilian use. The knowledge needed for the country's nuclear defence is anyway not going to be available from the P-5.
But the acute need for fuel was not at all desperate. Indian scientists are well in the process of turning thorium (India has 31 per cent of the world's reserves) into fissionable weapons' grade fuel.
Despite advancements in nuclear technology, not even three per cent of our electrical energy needs are being met by our nuclear facilities. So where was the desperation to get nuclear fuel for civilian use?
This is an agreement between two unequal partners, one having all the trumps and the other in danger of being irresistibly forced to follow suit at moments of crisis.
Now, after undergoing all the above hardships purportedly for the ‘great symbolism’ of an end to nuclear apartheid, India has got very little from the US for undertaking these obligations which are bound to be a strain on resources and freedom of this sovereign country. There has been no commitment from the US either on supporting India's bid for permanent membership of the UN Security Council or even on the supply of dual use nuclear and space technologies.
India’s position after the execution of the deal becomes all the more precarious due to an "Additional protocol" which it must sign for the civilian nuclear facilities. This protocol was not defined until recently this year (2008) either by the Bush Administration or the UPA Government; but the Prime Minister had said India would "adhere to it" three years ago in July 2005. That was akin to mortgaging the country’s interests to a third party by signing on a blank stamp paper.
Till the time the India-US civil nuclear cooperation deal turned into the 123 Agreement, Nicholas Burns, the US Under-Secretary of State for Political Affairs, kept shooting from his mouth mutually contradictory sound-bytes to the American audience and the Indian journalists who interviewed him. On 19 July 2005, a day after the joint statement by President George Bush and Prime Minister Manmohan Singh was released, Burns had said, “India has officially agreed to be responsible in a way that it was not ready to all these years. The real impact of this agreement will be such that India has de facto subscribed to all provisions of the NPT that only its signatories observe.” Thereafter, many of his statements on the deal for domestic consumption in the US have raised hackles in India.
View from across two oceans:
There is clearly a huge difference in the Indian and the American perceptions: India thinks it has practically been recognised as a nuclear power. And the US thinks India has de facto signed the NPT!
Either the US government hasn’t got it right or the Government of India is taking its people for a ride. For, the amendment to the US Atomic Energy Act of 1954 that were brought about to reach the 123 Agreement is described as Section 3709 of the US law: It states:
And as per Democrat Congressmen, this is why they allowed the Bush Administration to sign the 123 Agreement with India. Quote from the Democratic Policy Committee Report:
S 3709 leaves no room for doubt that India, once the 123 Agreement is in vogue, will have to depend on one presidential waiver after another to continue getting nuclear fuel supply from the US. When Bush pushed for amendment in the US’s 1954 law, many Congressmen thought that the Indo-US cooperation would contravene the multilateral export control guidelines of the NSG (which was formed as a response to the US's perceived threat that India might proliferate). They were of the opinion that India's nuclear weapons' programme negated potential non-proliferation assurances that nuclear safeguards on civil facilities might provide. They cerebrated that the agreement with India would undercut the basic bargain of the NPT — peaceful nuclear cooperation in exchange for forswearing nuclear weapons. It is still being feared that China and North Korea may now try to justify their supplying fissile material to Pakistan, which in turn, would find an excuse to proliferate, involving certain Islamic states.
The Congressmen, in whose hands the agreement will go for a final round of approval after the draft safeguard agreement that India has handed over to the IAEA, are still reckoning that there are no measures in this partnership to (a) restrain India's nuclear weapon's programme, and (b) stop India from producing more fissile material that it continues to do.
It is doubtful that FMCT negotiations can proceed quickly in the conference on disarmament (even if negotiations do not cover verification, as the Bush Administration prefers). Moreover, concluding an FMCT will become an urgent necessity in the event of the next government in the US being one led by Barack Obama’s Democrats. Many Congressmen may doubt that India stands good on the following stipulations of the NNPA (Nuclear Non-Proliferation Act, 1978), guaranteeing that (a) no transferred items or special nuclear material produced from transferred items will be used for any explosive device; and (b) no reprocessing or alteration in form or content will take place without prior American consent. But India has to insist that it’s word (in fact, that of former prime minister Vajpayee and former foreign minister Jaswant Singh) will hold only in a non-discriminatory disarmament regime that can be put to practice and adherence to it verified worldwide.
Let’s not forget that US law still states that India is a non-nuclear state, unworthy of receiving nuclear supplies. President Bush, therefore, has to exempt the cooperation from the full scope of the Sec 123 a. (2) (ref: Appendix III). It is hoped that the US won’t renege on this provision that has given that country’s agreement with India its name.
The Indo-US civilian nuclear pact must lie for 60 days of continuous session before the Congress. Both houses of Congress will have to pass a joint resolution of approval (of the Indo-US deal) to exempt the agreement from statutory non-proliferation criteria. Needless to add, the Bush Administration will not last to see this happen. So the only urge for both Bush and Singh seems to be leaving a legacy, howsoever flawed in the eyes of the opposition in either country.
Finally, why couldn’t the 123 Agreement have been the 127 Agreement, 128 Agreement or 129 Agreement? For, alternatively to Section 123 of the US law, there was another way the Bush Administration could have facilitated its deal with India. The administration could have sought to amend Sections 128 (ref: Appendix IV) and 129 (ref: Appendix V) that include the non-proliferation criteria.
But Sections 127 and 128 would have been untenable not only for India but also for the US, which has to loosen its own nuclear export legislation and create an exception to the NSG provisions (this, when US keeps pressurising all countries to tighten their respective domestic export control laws). While Section 127 is grotesquely bureaucratic, the additional problem with the 128 provision would have been the US’s dependence on the word of whoever the defence secretary would be at a given point of time rather than depending on the president’s waivers to trust a country with its exported nuclear fuel. For India, this is bad news when considered with a long-term perspective. To look up to a country’s defence minister/secretary is to look up to its government. But to look up to that country’s president is akin to depending on occasional whims and fancies of an individual. The President of the United States of America is a bit too potent for that country’s bilateral relations with any ‘dependent’ country.
But if the UPA Government really thought that any US President is a better proposition than his administration, then Section 129 should have been a better bet. After all, this section does not merely give the president the right to wave his waivers. In addition, it asks him to prove or disprove everything relevant about the country to which the US is about to export its nuclear fuel!
The height of naivete would, however, be to think that on the 123 Agreement, the US law of Section 129 does not apply. It very much does. Section 129 of the AEA states how exports to a hitherto non-nuclear state can be terminated abruptly. The termination occurs when the recipient, any day after May 10, 1978,
# detonates nuclear explosive device;
# terminates, abrogates or materially violates IAEA safeguards, and/or
# engages in turning the received nuclear material into an explosive device
In any event, the US President will have to submit a review waiver for each export of nuclear material to India, stating that the lack of approval of the export is against the non-proliferation interests of the US.
This is contrary to the general US Congress’s belief that it is the export — not its cancellation — which jeopardises the US's non-proliferation objectives. At least that is the premise of the Nuclear Regulatory Commission (NRC) (ref: Appendix III) that licences nuclear exports in accordance with Sections 127 (ref: Appendix VI) and 128 of the AEA (Atomic Energy Act, 1954).
Since India will continue to have its nuclear weapons' programme, the president will also have to issue a waiver to Sec 128, according to which, India by definition cannot ensure nuclear safeguards
Thus, a hue and cry may be raised on any of the above three grounds; and one day, India's import of nuclear fuel from the US may abruptly stop. To avoid this situation a waiver to Sec 129, too, is required from the President.
The onus, hence, lies completely on the US President to ensure that the nuclear supplies to India are uninterrupted.
Conclusion:
Both the India-US civil nuclear cooperation deal and its latter-day avatar are bad deals. If the deal is executed, India will forever complain that it isn’t getting enough from the deal even as the non-proliferation hawks in the American academia will keep crying foul over too much being conceded for India, despite this country’s spotless non-proliferation record. But the BJP better stop howling. It would have settled for much less in any comparable deal with the US had it continued to rule the country after May 2004. As for the Left, in its Utopian world, it could settle for much less with China, the emerging, modern equivalent of the Soviet Union of the Cold War era.
But yes, despite the deal that a BJP-led government could have struck with the US Administration in the duration 2004-09 having the hypothetical probability of being worse, the deal it could strike anew with the US if it renegotiates the 123 Agreement — as is its wont as well as declared position — will hopefully be better. The political party, once ridiculed as a “party of baniyas”, does everything that the Congress does. But it does it better. The BJP has a record of striking better deals with business houses, governments of other countries and all international bodies. The party is a better negotiator than both a super-intellectual Prime Minister Manmohan Singh and a semi-intellectual, ‘pro-development’ West Bengal Chief Minister Buddhadeb Bhattacharjee. Being a baniya has its benefits.
Appendix I:
Text of the 123 Agreement concerning peaceful uses of nuclear energy (123 Agreement):
Appendix II
Appendix III
Appendix IV
Every party to the dispute has been economical with the truth about the civil nuclear cooperation deal between the two countries since July 2005
_______________
Surajit Dasgupta
_______________
How much nuclear fuel will India get to use for civilian purposes if the 123 Agreement (ref: Appendix I) materialises? And by what per cent will India’s use of nuclear energy for civilian purposes increase if the deal is ‘operationalised’ (an English-sounding word coined by the country’s communists)? 5%? 7%?
Shady Congress:
For the last three years, the advocates of the deal have been making it appear like 50% or 70%. The zeal of the Congress-led UPA is all too comprehensible to merit an explanation. But since the journalists arguing in favour of the deal are seasoned enough, they must have something else in mind. So, is the very concern that is shared by China and Pakistan a cause to merry for these Indian journalists? In clearer words, is the fear of India’s detractors — that this country will manage to sneak fuel meant for civilian use into its military — a clandestine plan or motive that some Indian journalists want the Government of India to execute? If not, what was the government’s problem in showing the draft agreement with the International Atomic Energy Agency to the Left to seek its consent? Now, of course, it needs the approval of the Board of Governors of the IAEA to do so after the international body has accepted the draft. But before 9 July 2008, the IAEA could not have stopped India, a member country, from circulating within its sovereign territory a draft that is supposed to turn into an international agreement before it reaches them for ratification. So, did the government fear India’s enemies more than the left or the public — the enemies that, on knowing some ‘contentious’ proposals in the draft, could have put obstacles in the way of an approval of India’s de facto nuclear state status by the Nuclear Supplies Group?
Them-versus-US policy:
The US that is supposed to bail India out of the Tarapore nuclear fuel crisis, itself has not had a nuclear facility established for the purpose of civilian exploitation since 1973. What a paradox!Most of early atomic researches in the US focussed on developing an effective weapon for use in World War II. After the war, the US government encouraged the development of nuclear energy for peaceful civilian purposes while continuing to develop, test, and deploy new nuclear weapons. The Experimental Breeder Reactor I at a site in Idaho generated the first electricity from nuclear energy on December 20, 1951. Sixteen per cent of the world's electricity now comes from nuclear energy, 85 per cent of which is concentrated in industrialised countries. A total of 441 nuclear power plants were operational in 2005 when Bush and Singh first talked of the deal. There were also 32 nuclear reactors under construction (Nuclear Energy Institute). In the US alone, there are 103 nuclear power plants, which provide about 20 per cent of the country's electricity. But that is past.
A new nuclear power plant has not been ordered in the US since 1973. And in July 2005 while Bush was assuring Singh of nuclear fuel supply, his administration’s energy policies were simultaneously calling for a $15 billion federal subsidy to build six or seven new nuclear power plants.
Crafty cheerleaders:
A certain newspaper, while “walking the talk”, twists its questions in such a manner that the answer from even the biggest opponent of the deal sounds like being supportive of the deal. Such interviewees include former president APJ Abdul Kalam and former national security adviser Brajesh Mishra. If the agreement marks the end of the ‘nuclear apartheid’ regime led by the US since 1974, it’s too symbolic and not much substantive when one considers the reservations that many of the 45 countries, which make the NSG, may have about India getting easy access to nuclear fuel.
Shaky communists:
As for one of the opposite camps, the communist-socialist bloc, in November 2007, they took the funny stand that the government could jolly well ‘talk’ (or chat?) with the IAEA on India-specific safeguards, but it wouldn’t be allowed to execute the agreement with the US. The government said, well, it would only chat with the IAEA and do nothing more. And there indeed was nothing more that Prime Minister Manmohan Singh said on his way to Japan for the G-8 meet recently. What then caused the sudden hurry with which the left announced it would withdraw support from the government? It’s obvious that it would be awkward for the communists to be seen standing alongside the Congress, a party which the leftists have always painted as ‘abominable capitalists’, during the West Bengal and Kerala chapters of the next general elections. Therefore, that the withdrawal of support would definitely occur several months before the next general elections are due was a foregone conclusion. The country’s communists constitute that odd bloc that had once even asked the government to negotiate with the George Bush Administration on the relevance of the Henry J Hyde US-India Peaceful Atomic Energy Cooperation Act 2006 (Hyde Act), another country’s legislation, in the whole affair! This wild-goose-chase for remotely sensible arguments against the nuclear deal proved that the deal was just a red herring. The ever-increasing decibels against both the nuclear issue and the price-rise were never anything other than the communists’ preparation for an alibi to split from the government formally.Why don’t the communists say it without mincing words that they hate America? They can’t. Not only is the word “hate” too crude for a thoroughbred communist’s taste, but it’s also too uninspiring politically. The Marxists are slowly but surely realising that anti-Americanism does not drive any part of India anymore, save some Muslim pockets whose hoodlums had demonstrated wildly during Bush’s India visit. Of course, socialism-versus-capitalism may still be an interesting debate in sub-urban West Bengal, Kerala and some university campuses of the JNU variety. And that is the debate in which the philosophy proven defunct, socialism, will be eulogised and the ghost of the 19th and 20th centuries, capitalism, will be demonised in the coming months’ road-shows organised by the leftists in the streets and lanes of their rural bastions, as a run-up to the coming elections. In such pre-ordained debates, how odd a ‘capitalist’ Congress would have looked, sharing the stage with the socialists! Never mind that a socialist Jyoti Basu once used to guzzle gallons of scotch whiskey along with a capitalist Russy Modi at the latter’s flat on the 17th floor of Tata Centre in Kolkata.
Anyway, before answering the five pointed questions the left had asked the government, which the latter did not answer, except for sharing with the former a gist of the draft to be handed over to the IAEA, a question must be asked to the left: Why is it concerned about transparency of a deal only when the other party is America? When intense negotiations were on between India and Russia before the 20-year Treaty of Peace, Friendship, and Cooperation of August 1971 was signed, why didn’t the Marxists prod then prime minister Indira Gandhi to come clean? If one argues that the pact with Russia was in India’s favour, it should be reminded that throughout the Cold War era, in the name of friendship, the then ‘socialist’ USSR acted as nothing less than unethical capitalists. India-USSR trade was always tilted in the favour of the latter. The Soviet Union even tried to monopolise certain sectors of the Indian market. That was ample evidence of Russia’s friendship with India. Still, the old India was so abnormally and impractically humble and pro-‘friendship’ that during the PV Narasimha Rao regime, it cleared the debt to Russia in rupees at an exorbitant pre-1991 rate of rouble, though the price of the Russian currency had plummeted to a minute fraction of its erstwhile value. That was an unambiguous statement of India’s friendship. Arm-twisting a friendly but weaker country from a position of power is not, India proved to Russia, our idea of friendship.
Confused backers of the left-backed coalition government:
Funnier still is the most prominent leftist newspaper of the country. Quite uncharacteristic of its reserved ways, right after the 123 Agreement was struck, the paper went on to cover the entire space allotted for two editorials to write only one — one editorial explaining how ‘great’ the agreement was. A few days later came serious disapprobation of the deal by the left parties. And the newspaper followed it up by saying, in effect, “Yes, there is cause for concern!” Taken aback by this volte-face, readers from all over south India — where its readership is mostly based — flooded its office with protesting mails. And the paper’s reticent editor, who seldom writes otherwise unlike his contemporaries in north Indian dailies, had to appear on the op-editorial page in self-defence.
Hypocritical opposition:
After the trial blasts on 13 May 1998, unlike those conducted two days before that, pro-Pokhran-II scientists and politicians (of the BJP-led NDA) had assured the nation that the second round of nuclear tests was necessary for India to attain a state where no future tests would be required to be conducted physically. Rather, they said future tests, if needed, could be accomplished through simulations. Yet, the same set of people, after reading the US Hyde Act or pretending to have read it, started howling in protest, saying “it will increase the ‘cost’ of conducting future tests” on ground, if not it would ban future (physical) tests rightaway! Whatever happened to the tall claim of “simulations”?This reading of the Hyde Act was irrespective of the whistleblowers’ knowledge of the 123 Agreement — the final shape that the India-US nuclear cooperation deal took. What’s more important, when finally former US national security adviser and secretary of state in the Richard Nixon administration Henry Kissinger arrived in the country to persuade the BJP, prime-minister-in-the-waiting LK Advani told the ‘envoy’ that he had arrived a bit too late, and that his party had already made too many loud noises against the deal to now take an about-turn. The prime minister’s calling his predecessor Atal Bihari Vajpayee the “Bheeshma pitamah” of Indian politics was naïve too. No matter how much it itches Vajpayee to be remembered in history as a statesman, it was too late for him, too, to go against the stated position of his party.
Dodgy onlookers:
Shame on all reporters who are privy to the minutes of the Advani-Kissinger meet, none of whom reported the incident! This is as much hypocritical of the BJP’s spokespersons — both party members and the newspaper that is unofficially the party’s mouthpiece — as it is of journalists who work for other newspapers but feign friendship with the BJP to extract juicy stories from it. Sometimes, even “sources said” is something journalists are wary of writing.Chronology:
=> July 2005: Prime Minister Manmohan Singh and US President George W Bush agree in principle to a landmark civilian nuclear cooperation deal. The deal reverses 30 years of US policy opposing nuclear cooperation with India because it developed nuclear weapons in contravention of global rules and never signed the Non-Proliferation Treaty, or NPT.
=> March 2006: Bush pays a three-day visit to India during which the two countries agree on India's plan to separate its civilian and military nuclear reactors, a key requirement for the deal to go through.
=> Dec. 2006: US Congress overwhelmingly approves the deal. Three other approvals — from the 45-nation NSG, the IAEA and a second time by the Congress — are still needed before nuclear transfers to India can actually take place.
=> Dec. 2006: Bush signs the law approved by Congress, which makes changes to the US Atomic Energy Act. Analysts say the deal could be fully approved in roughly six months.
=> July 2007: The two countries announce finalisation of the deal after months of tough negotiations on a bilateral pact. India had objected to what it said were new conditions in the agreement unacceptable to it.
=> Aug. 2007: Text of the bilateral pact, called the 123 Agreement, is unveiled simultaneously in both countries. Indian analysts say it meets most of New Delhi's demands, but communist allies of the government coalition threaten to withdraw support over the pact, saying it compromises India's sovereignty. Singh defends the deal as crucial to India's prosperity.
=> Oct. 2007: Fraught meetings between the left and the coalition government take place after Sonia Gandhi, head of the Congress party, describes opponents of the deal as enemies of development. A snap election is averted after the government agrees to delay approaching the IAEA.
=> Nov. 2007: The left briefly softens its position and allows the government to begin talking to the IAEA about the safeguards agreement India needs to clinch the deal. But later in the month, communist politicians accuse the government of misleading the country.
=> Dec. 2007: Communists tell the government to stop talking to the IAEA.
=> Feb. 2008 - The US urges India to close the deal before Bush leaves office, saying the deal was unlikely to be offered again under the new administration.
=> June 25: The coalition meets with its leftist allies to try and resolve the impasse, but no agreement is reached.
=> July 1: The Communist Party of India (Marxist) says it is discussing the timing of its withdrawal of support, saying the government appeared to be pressing ahead with the deal.
=> July 4: The left give the government a July 7 deadline to decide whether it is going ahead with the deal.
=> July 8: The left withdraw its crucial support to the four and a half years old alliance with the UPA Government following the prime minister's statement en route Japan that he was going to pledge to the IAEA India's commitment to the safeguard measures for its civilian nuclear facilities
Let’s try to find answers to the questions posed by the Leftists on the India-US civil nuclear cooperation agreement. Their questions were/are:
(1) In case the US or other countries in the NSG renege on fuel supply assurances for imported reactors, will India has the ability to withdraw these reactors from IAEA safeguards?
(2) If US/NSG countries renege on fuel supply assurances, can we withdraw our indigenous civilian reactors from IAEA safeguards?
(3) If India has to bring nuclear fuel from the non-safeguarded part of our nuclear programme for these reactors in case of fuel supply assurances not being fulfilled, will India has the ability to take (the spent fuel) back again?
(4) What are the corrective steps that India can take if fuel supplies are interrupted by the US/NSG countries?
(5) What are the conditions that India will have to fulfil if the corrective steps are to be put into operation?
The government won’t tell the countrymen what exact safeguards it is pledging to the IAEA and what corrective measures India could take in case of discontinuity of nuclear fuel supply despite the agreement with the US. Still, a technical and legal probe is possible as the American legislations that can influence the deal are in the public domain.
Science:
In the fission of radioactive isotope uranium-235 (U-235) mixed with U-238, not only do we get energy but also plutonium-239 (Pu-239) as waste in the process. This makes plutonium a man-made waste product of nuclear fission, which can be used either for fuel in nuclear power plants or for bombs. In the year 2000, an estimated 310 tonnes of civilian, weapons-usable plutonium had been produced. Less than 8 kg of plutonium is enough for one Nagasaki-type bomb. Thus, in the year 2000 alone, enough plutonium was created to make more than 34,000 nuclear weapons. The technology for producing nuclear energy that is shared among nations, particularly the process that turns raw uranium into lowly-enriched uranium, can also be used to produce highly-enriched, weapons-grade uranium.
The IAEA is responsible for monitoring the world's nuclear facilities and for preventing weapons proliferation, but their safeguards have serious shortcomings. Though the IAEA is promoting additional safeguards agreements to increase the effectiveness of their inspections, the agency acknowledges that, due to measurement uncertainties, it cannot detect all possible diversions of nuclear material. This gives India a chance of manoeuvre despite its nuclear sites' transparency, which will come about as a quid pro quo against the recognition the US has offered to our nuclear state status. However, since India is devoted to non-proliferation, such a loophole can only make dodgy nuclear states like Pakistan (of Abdul Qadeer Khan infamy) happy (as and when it seeks parity from the US).
As for the prevention from Chernobyl like disasters, and also environmental degradation, before nuclear fuel is sought aplenty, Indian administration must ensure the following:
The mining of uranium, as well as its refining and enrichment, and the production of plutonium produce radioactive isotopes that contaminate the surrounding area, including the groundwater, air, land, plants, and equipment. As a result, humans and the entire ecosystem are adversely and profoundly affected. Some of these radioactive isotopes are extraordinarily long-lived, remaining toxic for hundreds of thousands of years. Presently, we are only beginning to observe and experience the consequences of producing nuclear energy.
Waste disposal: Nuclear waste is produced in many different ways. There are wastes produced in the reactor core, wastes created as a result of radioactive contamination, and wastes produced as a byproduct of uranium mining, refining, and enrichment. The vast majority of radiation in nuclear waste is given off from spent fuel rods. A typical reactor will generate 20 to 30 tonnes of high-level nuclear waste annually. There is no known way to safely dispose of this waste, which remains dangerously radioactive until it naturally decays. The rate of decay of a radioactive isotope is called its half-life, the time in which half the initial amount of atoms present takes to decay.
The half-life of Pu-239, one particularly lethal component of nuclear waste, is 24,000 years. The hazardous life of a radioactive element (the length of time that must elapse before the material is considered safe) is at least 10 half-lives. Therefore, Pu-239 will remain hazardous for at least 240,000 years. In the US, there is a current proposal to dump nuclear waste at Yucca Mountain, Nevada. The plan is for Yucca Mountain to hold all of the high level nuclear waste ever produced from every nuclear power plant in the US. However, that would completely fill up the site and not account for future waste.
Transporting the wastes by truck and rail would be extremely dangerous. Repository sites in Australia, Argentina, China, southern Africa, and Russia have also been considered.
Though some countries reprocess nuclear waste (in essence, preparing it to send through the cycle again to create more energy), this process is banned in the US due to increased proliferation risks, as the reprocessed materials can also be used for making bombs. Reprocessing is also not a solution because it just creates additional nuclear waste. The best action would be to cease producing nuclear energy (and waste), to leave the existing waste where it is, and to immobilise it.
There are a few different methods of waste immobilisation. In the vitrification process, waste is combined with glass-forming materials and melted. Once the materials solidify, the waste is trapped inside and can't easily be released.
Can India manage this massive waste disposal arrangement? Which method(s) has it thought of for its nuclear waste disposal?
India’s options for sustainable energy alternatives:
There are many alternative energy sources that are sustainable and do not pose the accident risks inherent in nuclear energy production. These sources include bio-energy: biomass, such as plant matter and animal waste, can yield power, heat, steam, and fuel.
# Geothermal: renewable heat energy can be harnessed from deep within the earth.
Indian potential – High.
# Wind: turbines turning in the air convert kinetic energy in the wind into electricity.
Indian potential - Low. The direction and intensity of winds in India are too erratic to be tapped. This option is ruled out.
# Solar: the sun's energy can be captured and used to produce heat and electricity.
Indian potential: Very high. Indian territory receives constant sunshine for 10 months of a year at a stretch, except in parts of the Northeast.
# Hydrogen: If produced by renewable sources, it can power fuel cells to convert chemical energy directly into electricity, with useful heat and water as the only byproducts. The Delhi Government is carrying out a feasibility study of hydrogen-run vehicles. However, even in the US, sceptics far outnumber the proponents of this fuel mainly because of its high inflammability. (This writer is currently working with an organisation, a wholly owned subsidiary of which has bought up the largest Canadian fuel cell company and is producing the best cells of its class. However, a fuel cell to run a car is not envisioned in the near future).
# Tidal: using the movement of the ocean to power turbines and generate electricity. This potential is good in the eastern shores of northern Andhra Pradesh and the entire coastal region of Orissa. India's western coasts have very poor tidal energy as most Arabian Sea currents head towards Iran and farther into the Middle-East.
Many more sustainable resources could be found and current resources improved if better technology were available and if the government and utilities actively promoted their development.
And for sure, uranium is not an alternative. It is not only crude oil but also uranium that acts and will always act pricey. The price of uranium cannot be steady. Effective 7 July 2008 the market price of U3O8 is $ 60.00/lb. This international spot price is six times the average price recorded over the period of the last five years. A fact that adds to the price volatility is the unpredictability of detection and extraction of usable uranium from various locations of the earth. Further, there is no guarantee whether a country rich in uranium will maintain its steady supply to other countries despite any agreement that it might have entered with the recipients in the past. Most important, uranium is not a renewable source of energy. It’s estimated that in less than a century it will be all exhausted just as petroleum may finish by less than half that period.
How the US had dodged India in 2005:
WHAT INDIA HAD INITIALLY AGREED TO:
# separating, in a phased manner, its civilian and military nuclear facilities;
# furnishing a white paper on its nuclear facilities to the IAEA;
# opening its civilian nuclear facilities for scrutiny as well as vigil by the IAEA;
# signing and adhering to an "additional protocol" with the IAEA;
# continuing with its declared unilateral moratorium (after Pokhran II) on further nuclear tests
# securing its nuclear materials and technology through comprehensive export control legislation;
# following all the regulations of the NSG and the Missile Technology Control Regime (MTCR) (despite not being a member of either);
# working with the US towards concluding a Fissile Material Cut-off Treaty (FMCT).
In return, WHAT THE US HAD TILL THEN AGREED TO:
The US President George W Bush (not the US Administration) would:
# present before the Congress a proposal to bring about changes in the country's laws and policies (to accommodate the 'recognition' given to India);
# talk to the allies of the US to cooperate in India's civilian nuclear programmes;
# share with his country's allies India's eagerness to participate in the ITER (Appendix II), and
# take the advice of his associates on the issue of India's desire to be a member of the "Generation IV International Forum".
The Congress-led UPA argues:
# Alternative to oil: India will import over 90 per cent of its oil and gas needs in a few years, mostly from unstable regions of the Middle-East.
Oil prices were speculated to keep hovering around $60 per barrel in 2005; recently it touched $160 per barrel. This has an obvious negative impact on our economy.
# Energy deficient countries like Japan, France etc had to rapidly build nuclear power capacity after the oil shock of 1973. China now is building its nuclear power base from near-zero capacity to 40,000MW of electricity by 2020.
# India has an ambitious plan to build 20,000MW of nuclear power by 2020. But our indigenous uranium reserves can support, at best, a capacity of only 10,000MW.
# If India wants to increase our nuclear power capacity to the targeted figure, it will need to import fuel for decades till the fast-breeder reactors are able to take over .
# The NDA government, understanding the problem in hand, had included 'nuclear energy' as the first item for cooperation with the US under the NSSP (Next Steps in Strategic Partnership) agreed upon in January 2004 by then prime minister Vajpayee and negotiated by then National Security Adviser Brajesh Mishra.
The loopholes in Congress’s arguments:
There is no way India can get international cooperation, especially for reactor fuel, without some adjustments in its policies. India has never had any problem with placing civil nuclear power reactors under the IAEA’s inspection system. Tarapur was voluntarily placed under such inspection in 1993 when India’s treaty obligations had expired. The two Russian supplied reactors near Chennai are under IAEA inspections already, and so are the Kota reactors. However, the civil nuclear power reactors built with any international cooperation component would have to be under IAEA inspection and this jeopardises our security because no fission/fusion factory in India has ever been marked as "civilian". All facilities have always been for dual use.
Separation of the two types of facilities (if the factories at all can be thus sub-classified now) involves (i) prohibitive costs, (ii) is a logistics nightmare, (iii) is practically difficult and (iv) potentially hazardous with a high risk of accidents. This would not have happened if we had the two types of factories separated right from their advent.
The new technologies, which may now be accessed from other nuclear powers, will be of no use to our defence needs, though it is here that high-end technology is needed. Nuclear exploits for civilian purposes are much simpler; and India already has good expertise in it.
It is fuel supply that we need more than the know-how for civilian use. The knowledge needed for the country's nuclear defence is anyway not going to be available from the P-5.
But the acute need for fuel was not at all desperate. Indian scientists are well in the process of turning thorium (India has 31 per cent of the world's reserves) into fissionable weapons' grade fuel.
Despite advancements in nuclear technology, not even three per cent of our electrical energy needs are being met by our nuclear facilities. So where was the desperation to get nuclear fuel for civilian use?
This is an agreement between two unequal partners, one having all the trumps and the other in danger of being irresistibly forced to follow suit at moments of crisis.
Now, after undergoing all the above hardships purportedly for the ‘great symbolism’ of an end to nuclear apartheid, India has got very little from the US for undertaking these obligations which are bound to be a strain on resources and freedom of this sovereign country. There has been no commitment from the US either on supporting India's bid for permanent membership of the UN Security Council or even on the supply of dual use nuclear and space technologies.
India’s position after the execution of the deal becomes all the more precarious due to an "Additional protocol" which it must sign for the civilian nuclear facilities. This protocol was not defined until recently this year (2008) either by the Bush Administration or the UPA Government; but the Prime Minister had said India would "adhere to it" three years ago in July 2005. That was akin to mortgaging the country’s interests to a third party by signing on a blank stamp paper.
Till the time the India-US civil nuclear cooperation deal turned into the 123 Agreement, Nicholas Burns, the US Under-Secretary of State for Political Affairs, kept shooting from his mouth mutually contradictory sound-bytes to the American audience and the Indian journalists who interviewed him. On 19 July 2005, a day after the joint statement by President George Bush and Prime Minister Manmohan Singh was released, Burns had said, “India has officially agreed to be responsible in a way that it was not ready to all these years. The real impact of this agreement will be such that India has de facto subscribed to all provisions of the NPT that only its signatories observe.” Thereafter, many of his statements on the deal for domestic consumption in the US have raised hackles in India.View from across two oceans:
There is clearly a huge difference in the Indian and the American perceptions: India thinks it has practically been recognised as a nuclear power. And the US thinks India has de facto signed the NPT!
Either the US government hasn’t got it right or the Government of India is taking its people for a ride. For, the amendment to the US Atomic Energy Act of 1954 that were brought about to reach the 123 Agreement is described as Section 3709 of the US law: It states:
S. 3709 would provide waivers, subject to determinations made by the President and congressional approval, to the Atomic Energy Act (AEA) of 1954 to allow for civilian nuclear cooperation between the United States and India. The bill would allow the President to waive certain AEA provisions on U.S. exports and re-exports of nuclear material, equipment, and technology, if the President makes determinations regarding India’s commitment to peaceful nuclear cooperation, as enumerated in the July 18, 2005 Joint Statement issued by President Bush and Prime Minister Singh of India. S. 3709 would require a joint resolution of approval by Congress before any agreement for nuclear cooperation with India is enacted.
And as per Democrat Congressmen, this is why they allowed the Bush Administration to sign the 123 Agreement with India. Quote from the Democratic Policy Committee Report:
In the Joint Statement, India agreed to: end its production of fissile materials; ensure the separation of its civilian and military nuclear facilities, materials and programs; cooperate with the international community on non-proliferation initiatives; implement IAEA safeguards; and adhere to export control guidelines established by the MTCR and the NSG.
S 3709 leaves no room for doubt that India, once the 123 Agreement is in vogue, will have to depend on one presidential waiver after another to continue getting nuclear fuel supply from the US. When Bush pushed for amendment in the US’s 1954 law, many Congressmen thought that the Indo-US cooperation would contravene the multilateral export control guidelines of the NSG (which was formed as a response to the US's perceived threat that India might proliferate). They were of the opinion that India's nuclear weapons' programme negated potential non-proliferation assurances that nuclear safeguards on civil facilities might provide. They cerebrated that the agreement with India would undercut the basic bargain of the NPT — peaceful nuclear cooperation in exchange for forswearing nuclear weapons. It is still being feared that China and North Korea may now try to justify their supplying fissile material to Pakistan, which in turn, would find an excuse to proliferate, involving certain Islamic states.
The Congressmen, in whose hands the agreement will go for a final round of approval after the draft safeguard agreement that India has handed over to the IAEA, are still reckoning that there are no measures in this partnership to (a) restrain India's nuclear weapon's programme, and (b) stop India from producing more fissile material that it continues to do.
It is doubtful that FMCT negotiations can proceed quickly in the conference on disarmament (even if negotiations do not cover verification, as the Bush Administration prefers). Moreover, concluding an FMCT will become an urgent necessity in the event of the next government in the US being one led by Barack Obama’s Democrats. Many Congressmen may doubt that India stands good on the following stipulations of the NNPA (Nuclear Non-Proliferation Act, 1978), guaranteeing that (a) no transferred items or special nuclear material produced from transferred items will be used for any explosive device; and (b) no reprocessing or alteration in form or content will take place without prior American consent. But India has to insist that it’s word (in fact, that of former prime minister Vajpayee and former foreign minister Jaswant Singh) will hold only in a non-discriminatory disarmament regime that can be put to practice and adherence to it verified worldwide.
Let’s not forget that US law still states that India is a non-nuclear state, unworthy of receiving nuclear supplies. President Bush, therefore, has to exempt the cooperation from the full scope of the Sec 123 a. (2) (ref: Appendix III). It is hoped that the US won’t renege on this provision that has given that country’s agreement with India its name.
The Indo-US civilian nuclear pact must lie for 60 days of continuous session before the Congress. Both houses of Congress will have to pass a joint resolution of approval (of the Indo-US deal) to exempt the agreement from statutory non-proliferation criteria. Needless to add, the Bush Administration will not last to see this happen. So the only urge for both Bush and Singh seems to be leaving a legacy, howsoever flawed in the eyes of the opposition in either country.
Finally, why couldn’t the 123 Agreement have been the 127 Agreement, 128 Agreement or 129 Agreement? For, alternatively to Section 123 of the US law, there was another way the Bush Administration could have facilitated its deal with India. The administration could have sought to amend Sections 128 (ref: Appendix IV) and 129 (ref: Appendix V) that include the non-proliferation criteria.
But Sections 127 and 128 would have been untenable not only for India but also for the US, which has to loosen its own nuclear export legislation and create an exception to the NSG provisions (this, when US keeps pressurising all countries to tighten their respective domestic export control laws). While Section 127 is grotesquely bureaucratic, the additional problem with the 128 provision would have been the US’s dependence on the word of whoever the defence secretary would be at a given point of time rather than depending on the president’s waivers to trust a country with its exported nuclear fuel. For India, this is bad news when considered with a long-term perspective. To look up to a country’s defence minister/secretary is to look up to its government. But to look up to that country’s president is akin to depending on occasional whims and fancies of an individual. The President of the United States of America is a bit too potent for that country’s bilateral relations with any ‘dependent’ country.
But if the UPA Government really thought that any US President is a better proposition than his administration, then Section 129 should have been a better bet. After all, this section does not merely give the president the right to wave his waivers. In addition, it asks him to prove or disprove everything relevant about the country to which the US is about to export its nuclear fuel!
The height of naivete would, however, be to think that on the 123 Agreement, the US law of Section 129 does not apply. It very much does. Section 129 of the AEA states how exports to a hitherto non-nuclear state can be terminated abruptly. The termination occurs when the recipient, any day after May 10, 1978,
# detonates nuclear explosive device;
# terminates, abrogates or materially violates IAEA safeguards, and/or
# engages in turning the received nuclear material into an explosive device
In any event, the US President will have to submit a review waiver for each export of nuclear material to India, stating that the lack of approval of the export is against the non-proliferation interests of the US.
This is contrary to the general US Congress’s belief that it is the export — not its cancellation — which jeopardises the US's non-proliferation objectives. At least that is the premise of the Nuclear Regulatory Commission (NRC) (ref: Appendix III) that licences nuclear exports in accordance with Sections 127 (ref: Appendix VI) and 128 of the AEA (Atomic Energy Act, 1954).
Since India will continue to have its nuclear weapons' programme, the president will also have to issue a waiver to Sec 128, according to which, India by definition cannot ensure nuclear safeguards
Thus, a hue and cry may be raised on any of the above three grounds; and one day, India's import of nuclear fuel from the US may abruptly stop. To avoid this situation a waiver to Sec 129, too, is required from the President.
The onus, hence, lies completely on the US President to ensure that the nuclear supplies to India are uninterrupted.
Conclusion:
Both the India-US civil nuclear cooperation deal and its latter-day avatar are bad deals. If the deal is executed, India will forever complain that it isn’t getting enough from the deal even as the non-proliferation hawks in the American academia will keep crying foul over too much being conceded for India, despite this country’s spotless non-proliferation record. But the BJP better stop howling. It would have settled for much less in any comparable deal with the US had it continued to rule the country after May 2004. As for the Left, in its Utopian world, it could settle for much less with China, the emerging, modern equivalent of the Soviet Union of the Cold War era.
But yes, despite the deal that a BJP-led government could have struck with the US Administration in the duration 2004-09 having the hypothetical probability of being worse, the deal it could strike anew with the US if it renegotiates the 123 Agreement — as is its wont as well as declared position — will hopefully be better. The political party, once ridiculed as a “party of baniyas”, does everything that the Congress does. But it does it better. The BJP has a record of striking better deals with business houses, governments of other countries and all international bodies. The party is a better negotiator than both a super-intellectual Prime Minister Manmohan Singh and a semi-intellectual, ‘pro-development’ West Bengal Chief Minister Buddhadeb Bhattacharjee. Being a baniya has its benefits.
The writer is a mathematician and linguist, now a corporate communicator and has been a journalist, a teacher and marketing manager (in reverse chronological order) in his previous vocations
Appendix I:
Text of the 123 Agreement concerning peaceful uses of nuclear energy (123 Agreement):
The following is the text of the Agreement for Cooperation between the Government of the United States of America and the Government of India concerning peaceful uses of nuclear energy (123 Agreement):
The Government of India and the Government of the United States of America, hereinafter referred to as the Parties,
RECOGNIZING the significance of civilian nuclear energy for meeting growing global energy demands in a cleaner and more efficient manner;
DESIRING to cooperate extensively in the full development and use of nuclear energy for peaceful purposes as a means of achieving energy security, on a stable, reliable and predictable basis;
WISHING to develop such cooperation on the basis of mutual respect for sovereignty, non-interference in each other's internal affairs, equality, mutual benefit, reciprocity and with due respect for each other's nuclear programmes;
DESIRING to establish the necessary legal framework and basis for cooperation concerning peaceful uses of nuclear energy;
AFFIRMING that cooperation under this Agreement is between two States possessing advanced nuclear technology, both Parties having the same benefits and advantages, both committed to preventing WMD proliferation;
NOTING the understandings expressed in the India - U.S. Joint Statement of July 18, 2005 to enable full civil nuclear energy cooperation with India covering aspects of the associated nuclear fuel cycle;
AFFIRMING their support for the objectives of the International Atomic Energy Agency (IAEA) and its safeguards system, as applicable to India and the United States of America, and its importance in ensuring that international cooperation in development and use of nuclear energy for peaceful purposes is carried out under arrangements that will not contribute to the proliferation of nuclear weapons or other nuclear explosive devices;
NOTING their respective commitments to safety and security of peaceful uses of nuclear energy, to adequate physical protection of nuclear material and effective national export controls;
MINDFUL that peaceful nuclear activities must be undertaken with a view to protecting the environment;
MINDFUL of their shared commitment to preventing the proliferation of weapons of mass destruction; and
DESIROUS of strengthening the strategic partnership between them;
Have agreed on the following:
ARTICLE 1 – DEFINITIONS
For the purposes of this Agreement:
(A) ''By-product material'' means any radioactive material (except special fissionable material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special fissionable material. By-product material shall not be subject to safeguards or any other form of verification under this Agreement, unless it has been decided otherwise by prior mutual agreement in writing between the two Parties.
(B) ''Component'' means a component part of equipment, or other item so designated by agreement of the Parties.
(C) ''Conversion'' means any of the normal operations in the nuclear fuel cycle, preceding fuel fabrication and excluding enrichment, by which uranium is transformed from one chemical form to another - for example, from uranium hexafluoride (UF6) to uranium dioxide (UO2) or from uranium oxide to metal.
(D) ''Decommissioning'' means the actions taken at the end of a facility's useful life to retire the facility from service in the manner that provides adequate protection for the health and safety of the decommissioning workers and the general public, and for the environment. These actions can range from closing down the facility and a minimal removal of nuclear material coupled with continuing maintenance and surveillance, to a complete removal of residual radioactivity in excess of levels acceptable for unrestricted use of the facility and its site.
(E) ''Dual-Use Item'' means a nuclear related item which has a technical use in both nuclear and non-nuclear applications.
(F) ''Equipment'' means any equipment in nuclear operation including reactor, reactor pressure vessel, reactor fuel charging and discharging equipment, reactor control rods, reactor pressure tubes, reactor primary coolant pumps, zirconium tubing, equipment for fuel fabrication and any other item so designated by the Parties.
(G) ''High enriched uranium'' means uranium enriched to twenty percent or greater in the isotope 235.
(H) ''Information'' means any information that is not in the public domain and is transferred in any form pursuant to this Agreement and so designated and documented in hard copy or digital form by mutual agreement by the Parties that it shall be subject to this Agreement, but will cease to be information whenever the Party transferring the information or any third party legitimately releases it into the public domain.
(I) ''Low enriched uranium'' means uranium enriched to less than twenty percent in the isotope 235.
(J) ''Major critical component'' means any part or group of parts essential to the operation of a sensitive nuclear facility or heavy water production facility.
(K) ''Non-nuclear material'' means heavy water, or any other material suitable for use in a reactor to slow down high velocity neutrons and increase the likelihood of further fission, as may be jointly designated by the appropriate authorities of the Parties.
(L) ''Nuclear material'' means (1) source material and (2) special fissionable material. ''Source material'' means uranium containing the mixture of isotopes occurring in nature; uranium depleted in the isotope 235; thorium; any of the foregoing in the form of metal, alloy, chemical compound, or concentrate; any other material containing one or more of the foregoing in such concentration as the Board of Governors of the IAEA shall from time to time determine; and such other materials as the Board of Governors of the IAEA may determine or as may be agreed by the appropriate authorities of both Parties. ''Special fissionable material'' means plutonium, uranium-233, uranium enriched in the isotope 233 or 235, any substance containing one or more of the foregoing, and such other substances as the Board of Governors of the IAEA may determine or as may be agreed by the appropriate authorities of both Parties. ''Special fissionable material'' does not include ''source material''. Any determination by the Board of Governors of the IAEA under Article XX of that Agency's Statute or otherwise that amends the list of materials considered to be ''source material'' or ''special fissionable material'' shall only have effect under this Agreement when both Parties to this Agreement have informed each other in writing that they accept such amendment.
(M) ''Peaceful purposes'' include the use of information, nuclear material, equipment or components in such fields as research, power generation, medicine, agriculture and industry, but do not include use in, research on, or development of any nuclear explosive device or any other military purpose. Provision of power for a military base drawn from any power network, production of radioisotopes to be used for medical purposes in military environment for diagnostics, therapy and sterility assurance, and other similar purposes as may be mutually agreed by the Parties shall not be regarded as military purpose.
(N) ''Person'' means any individual or any entity subject to the territorial jurisdiction of either Party but does not include the Parties.
(O) ''Reactor'' means any apparatus, other than a nuclear weapon or other nuclear explosive device, in which a self-sustaining fission chain reaction is maintained by utilizing uranium, plutonium, or thorium or any combination thereof.
(P) ''Sensitive nuclear facility'' means any facility designed or used primarily for uranium enrichment, reprocessing of nuclear fuel, or fabrication of nuclear fuel containing plutonium.
(Q) ''Sensitive nuclear technology'' means any information that is not in the public domain and that is important to the design, construction, fabrication, operation, or maintenance of any sensitive nuclear facility, or other such information that may be so designated by agreement of the Parties.
ARTICLE 2 - SCOPE OF COOPERATION
1. The Parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this Agreement. Each Party shall implement this Agreement in accordance with its respective applicable treaties, national laws, regulations, and licence requirements concerning the use of nuclear energy for peaceful purposes.
2. The purpose of the Agreement being to enable full civil nuclear energy cooperation between the Parties, the Parties may pursue cooperation in all relevant areas to include, but not limited to, the following:
a. Advanced nuclear energy research and development in such areas as may be agreed between the Parties;
b. Nuclear safety matters of mutual interest and competence, as set out in Article 3;
c. Facilitation of exchange of scientists for visits, meetings, symposia and collaborative research;
d. Full civil nuclear cooperation activities covering nuclear reactors and aspects of the associated nuclear fuel cycleincluding technology transfer on an industrial or commercial scale between the Parties or authorized persons;
e. Development of a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors;
f. Advanced research and development in nuclear sciences including but not limited to biological research, medicine, agriculture and industry, environment and climate change;
g. Supply between the Parties, whether for use by or for the benefit of the Parties or third countries, of nuclear material;
h. Alteration in form or content of nuclear material as provided for in Article 6;
i. Supply between the Parties of equipment, whether for use by or for the benefit of the Parties or third countries;
j. Controlled thermonuclear fusion including in multilateral projects; and
k. Other areas of mutual interest as may be agreed by the Parties.
3. Transfer of nuclear material, non-nuclear material, equipment, components and information under this Agreement may be undertaken directly between the Parties or through authorized persons. Such transfers shall be subject to this Agreement and to such additional terms and conditions as may be agreed by the Parties. Nuclear material, non-nuclear material, equipment, components and information transferred from the territory of one Party to the territory of the other Party, whether directly or through a third country, will be regarded as having been transferred pursuant to this Agreement only upon confirmation, by the appropriate authority of the recipient Party to the appropriate authority of the supplier Party that such items both will be subject to the Agreement and have been received by the recipient Party.
4. The Parties affirm that the purpose of this Agreement is to provide for peaceful nuclear cooperation and not to affect the unsafeguarded nuclear activities of either Party. Accordingly, nothing in this Agreement shall be interpreted as affecting the rights of the Parties to use for their own purposes nuclear material, non-nuclear material, equipment, components, information or technology produced, acquired or developed by them independent of any nuclear material, non-nuclear material, equipment, components, information or technology transferred to them pursuant to this Agreement. This Agreement shall be implemented in a manner so as not to hinder or otherwise interfere with any other activities involving the use of nuclear material, non-nuclear material, equipment, components, information or technology and military nuclear facilities produced, acquired or developed by them independent of this Agreement for their own purposes.
ARTICLE 3 - TRANSFER OF INFORMATION
1. Information concerning the use of nuclear energy for peaceful purposes may be transferred between the Parties. Transfers of information may be accomplished through reports, data banks and computer programs and any other means mutually agreed to by the Parties. Fields that may be covered include, but shall not be limited to, the following:
a. Research, development, design, construction, operation, maintenance and use of reactors, reactor experiments, and decommissioning;
b. The use of nuclear material in physical, chemical, radiological and biological research, medicine, agriculture and industry;
c. Fuel cycle activities to meet future world-wide civil nuclear energy needs, including multilateral approaches to which they are parties for ensuring nuclear fuel supply and appropriate techniques for management of nuclear wastes;
d. Advanced research and development in nuclear science and technology;
e. Health, safety, and environmental considerations related to the foregoing;
f. Assessments of the role nuclear power may play in national energy plans;
g. Codes, regulations and standards for the nuclear industry;
h. Research on controlled thermonuclear fusion including bilateral activities and contributions toward multilateral projects such as the International Thermonuclear Experimental Reactor (ITER); and
i. Any other field mutually agreed to by the Parties.
2. Cooperation pursuant to this Article may include, but is not limited to, training, exchange of personnel, meetings, exchange of samples, materials and instruments for experimental purposes and a balanced participation in joint studies and projects.
3. This Agreement does not require the transfer of any information regarding matters outside the scope of this Agreement, or information that the Parties are not permitted under their respective treaties, national laws, or regulations to transfer.
4. Restricted Data, as defined by each Party, shall not be transferred under this Agreement.
ARTICLE 4 - NUCLEAR TRADE
1. The Parties shall facilitate nuclear trade between themselves in the mutual interests of their respective industry, utilities and consumers and also, where appropriate, trade between third countries and either Party of items obligated to the other Party. The Parties recognize that reliability of supplies is essential to ensure smooth and uninterrupted operation of nuclear facilities and that industry in both the Parties needs continuing reassurance that deliveries can be made on time in order to plan for the efficient operation of nuclear installations.
2. Authorizations, including export and import licences as well as authorizations or consents to third parties, relating to trade, industrial operations or nuclear material movement should be consistent with the sound and efficient administration of this Agreement and should not be used to restrict trade. It is further agreed that if the relevant authority of the concerned Party considers that an application cannot be processed within a two month period it shall immediately, upon request, provide reasoned information to the submitting Party. In the event of a refusal to authorize an application or a delay exceeding four months from the date of the first application the Party of the submitting persons or undertakings may call for urgent consultations under Article 13 of this Agreement, which shall take place at the earliest opportunity and in any case not later than 30 days after such a request.
ARTICLE 5 - TRANSFER OF NUCLEAR MATERIAL, NON-NUCLEAR MATERIAL, EQUIPMENT, COMPONENTS AND RELATED TECHNOLOGY
1. Nuclear material, non-nuclear material, equipment and components may be transferred for applications consistent with this Agreement. Any special fissionable material transferred under this Agreement shall be low enriched uranium, except as provided in paragraph 5.
2. Sensitive nuclear technology, heavy water production technology, sensitive nuclear facilities, heavy water production facilities and major critical components of such facilities may be transferred under this Agreement pursuant to an amendment to this Agreement. Transfers of dual-use items that could be used in enrichment, reprocessing or heavy water production facilities will be subject to the Parties' respective applicable laws, regulations and licence policies.
3. Natural or low enriched uranium may be transferred for use as fuel in reactor experiments and in reactors, for conversion or fabrication, or for such other purposes as may be agreed to by the Parties.
4. The quantity of nuclear material transferred under this Agreement shall be consistent with any of the following purposes: use in reactor experiments or the loading of reactors, the efficient and continuous conduct of such reactor experiments or operation of reactors for their lifetime, use as samples, standards, detectors, and targets, and the accomplishment of other purposes as may be agreed by the Parties.
5. Small quantities of special fissionable material may be transferred for use as samples, standards, detectors, and targets, and for such other purposes as the Parties may agree.
6. (a) The United States has conveyed its commitment to the reliable supply of fuel to India. Consistent with the July 18, 2005, Joint Statement, the United States has also reaffirmed its assurance to create the necessary conditions for India to have assured and full access to fuel for its reactors. As part of its implementation of the July 18, 2005, Joint Statement the United States is committed to seeking agreement from the U.S. Congress to amend its domestic laws and 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.
(b) To further guard against any disruption of fuel supplies, the United States is prepared to take the following additional steps:
i) The United States is willing to incorporate assurances regarding fuel supply in the bilateral U.S.-India agreement on peaceful uses of nuclear energy under Section 123 of the U.S. Atomic Energy Act, which would be submitted to the U.S. Congress.
ii) The United States will join India in seeking to negotiate with the IAEA an India-specific fuel supply agreement.
iii) The United States will support an Indian effort to develop a strategic reserve of nuclear fuel to guard against any disruption of supply over the lifetime of India's reactors.
iv) If despite these arrangements, a disruption of fuel supplies to India occurs, the United States and India would jointly convene a group of friendly supplier countries to include countries such as Russia, France and the United Kingdom to pursue such measures as would restore fuel supply to India.
(c) In light of the above understandings with the United States, an India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards to guard against withdrawal of safeguarded nuclear material from civilian use at any time as well as providing for corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.
ARTICLE 6 - NUCLEAR FUEL CYCLE ACTIVITIES
In keeping with their commitment to full civil nuclear cooperation, both Parties, as they do with other states with advanced nuclear technology, may carry out the following nuclear fuel cycle activities:
i) Within the territorial jurisdiction of either Party, enrichment up to twenty percent in the isotope 235 of uranium transferred pursuant to this Agreement, as well as of uranium used in or produced through the use of equipment so transferred, may be carried out.
ii) Irradiation within the territorial jurisdiction of either Party of plutonium, uranium-233, high enriched uranium and irradiated nuclear material transferred pursuant to this Agreement or used in or produced through the use of non-nuclear material, nuclear material or equipment so transferred may be carried out.
iii) With a view to implementing full civil nuclear cooperation as envisioned in the Joint Statement of the Parties of July 18, 2005, the Parties grant each other consent to reprocess or otherwise alter in form or content nuclear material transferred pursuant to this Agreement and nuclear material and by-product material used in or produced through the use of nuclear material, non-nuclear material, or equipment so transferred. To bring these rights into effect, India will establish a new national reprocessing facility dedicated to reprocessing safeguarded nuclear material under IAEA safeguards and the Parties will agree on arrangements and procedures under which such reprocessing or other alteration in form or content will take place in this new facility. Consultations on arrangements and procedures will begin within six months of a request by either Party and will be concluded within one year. The Parties agree on the application of IAEA safeguards to all facilities concerned with the above activities. These arrangements and procedures shall include provisions with respect to physical protection standards set out in Article 8, storage standards set out in Article 7, and environmental protections set forth in Article 11 of this Agreement, and such other provisions as may be agreed by the Parties. Any special fissionable material that may be separated may only be utilized in national facilities under IAEA safeguards.
iv) Post-irradiation examination involving chemical dissolution or separation of irradiated nuclear material transferred pursuant to this Agreement or irradiated nuclear material used in or produced through the use of non-nuclear material, nuclear material or equipment so transferred may be carried out.
ARTICLE 7 - STORAGE AND RETRANSFERS
1. Plutonium and uranium 233 (except as either may be contained in irradiated fuel elements), and high enriched uranium, transferred pursuant to this Agreement or used in or produced through the use of material or equipment so transferred, may be stored in facilities that are at all times subject, as a minimum, to the levels of physical protection that are set out in IAEA document INFCIRC 225/REV 4 as it may be revised and accepted by the Parties. Each Party shall record such facilities on a list, made available to the other Party. A Party's list shall be held confidential if that Party so requests. Either Party may make changes to its list by notifying the other Party in writing and receiving a written acknowledgement. Such acknowledgement shall be given no later than thirty days after the receipt of the notification and shall be limited to a statement that the notification has been received. If there are grounds to believe that the provisions of this sub-Article are not being fully complied with, immediate consultations may be called for. Following upon such consultations, each Party shall ensure by means of such consultations that necessary remedial measures are taken immediately. Such measures shall be sufficient to restore the levels of physical protection referred to above at the facility in question. However, if the Party on whose territory the nuclear material in question is stored determines that such measures are not feasible, it will shift the nuclear material to another appropriate, listed facility it identifies.
2. Nuclear material, non-nuclear material, equipment, components, and information transferred pursuant to this Agreement and any special fissionable material produced through the use of nuclear material, non-nuclear material or equipment so transferred shall not be transferred or re-transferred to unauthorized persons or, unless the Parties agree, beyond the recipient Party's territorial jurisdiction.
ARTICLE 8 - PHYSICAL PROTECTION
1. Adequate physical protection shall be maintained with respect to nuclear material and equipment transferred pursuant to this Agreement and nuclear material used in or produced through the use of nuclear material, non-nuclear material or equipment so transferred.
2. To fulfill the requirement in paragraph 1, each Party shall apply measures in accordance with (i) levels of physical protection at least equivalent to the recommendations published in IAEA document INFCIRC/225/Rev.4 entitled ''The Physical Protection of Nuclear Material and Nuclear Facilities,'' and in any subsequent revisions of that document agreed to by the Parties, and (ii) the provisions of the 1980 Convention on the Physical Protection of Nuclear Material and any amendments to the Convention that enter into force for both Parties.
3. The Parties will keep each other informed through diplomatic channels of those agencies or authorities having responsibility for ensuring that levels of physical protection for nuclear material in their territory or under their jurisdiction or control are adequately met and having responsibility for coordinating response and recovery operations in the event of unauthorized use or handling of material subject to this Article. The Parties will also keep each other informed through diplomatic channels of the designated points of contact within their national authorities to cooperate on matters of out-of-country transportation and other matters of mutual concern.
4. The provisions of this Article shall be implemented in such a manner as to avoid undue interference in the Parties' peaceful nuclear activities and so as to be consistent with prudent management practices required for the safe and economic conduct of their peaceful nuclear programs.
ARTICLE 9 - PEACEFUL USE
Nuclear material, equipment and components transferred pursuant to this Agreement and nuclear material and by-product materialused in or produced through the use of any nuclear material, equipment, and components so transferred shall not be used by the recipient Party for any nuclear explosive device, for research on or development of any nuclear explosive device or for any military purpose.
ARTICLE 10 - IAEA SAFEGUARDS
1. Safeguards 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.
2. Taking into account Article 5.6 of this Agreement, India agrees that nuclear material and equipment transferred to India by the United States of America pursuant to this Agreement and any nuclear material used in or produced through the use of nuclear material, non-nuclear material, equipment or components so transferred shall be subject to safeguards in perpetuity in accordance with the India-specific Safeguards Agreement between India and the IAEA [identifying data] and an Additional Protocol, when in force.
3. Nuclear material and equipment transferred to the United States of America pursuant to this Agreement and any nuclear material used in or produced through the use of any nuclear material, non-nuclear material, equipment, or components so transferred shall be subject to the Agreement between the United States of America and the IAEA for the application of safeguards in the United States of America, done at Vienna November 18, 1977, which entered into force on December 9, 1980, and an Additional Protocol, when in force.
4. If the IAEA decides that the application of IAEA safeguards is no longer possible, the supplier and recipient should consult and agree on appropriate verification measures.
5. Each Party shall take such measures as are necessary to maintain and facilitate the application of IAEA safeguards in its respective territory provided for under this Article.
6. Each 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. The procedures applicable to India shall be those set forth in the India-specific Safeguards Agreement referred to in Paragraph 2 of this Article.
7. Upon 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.
8. The provisions of this Article shall be implemented in such a manner as to avoid hampering, delay, or undue interference in the Parties' peaceful nuclear activities and so as to be consistent with prudent management practices required for the safe and economic conduct of their peaceful nuclear programs.
ARTICLE 11 - ENVIRONMENTAL PROTECTION
The Parties shall cooperate in following the best practices for minimizing the impact on the environment from any radioactive, chemical or thermal contamination arising from peaceful nuclear activities under this Agreement and in related matters of health and safety.
ARTICLE 12 - IMPLEMENTATION OF THE AGREEMENT
1. This Agreement shall be implemented in a manner designed:
a) to avoid hampering or delaying the nuclear activities in the territory of either Party;
b) to avoid interference in such activities;
c) to be consistent with prudent management practices required for the safe conduct of such activities; and
d) to take full account of the long term requirements of the nuclear energy programs of the Parties.
2. The provisions of this Agreement shall not be used to:
a) secure unfair commercial or industrial advantages or to restrict trade to the disadvantage of persons and undertakings of either Party or hamper their commercial or industrial interests, whether international or domestic;
b) interfere with the nuclear policy or programs for the promotion of the peaceful uses of nuclear energy including research and development; or
c) impede the free movement of nuclear material, non nuclear material and equipment supplied under this Agreement within the territory of the Parties.
3. When execution of an agreement or contract pursuant to this Agreement between Indian and United States organizations requires exchanges of experts, the Parties shall facilitate entry of the experts to their territories and their stay therein consistent with national laws, regulations and practices. When other cooperation pursuant to this Agreement requires visits of experts, the Parties shall facilitate entry of the experts to their territory and their stay therein consistent with national laws, regulations and practices.
ARTICLE 13 – CONSULTATIONS
1. The Parties undertake to consult at the request of either Party regarding the implementation of this Agreement and the development of further cooperation in the field of peaceful uses of nuclear energy on a stable, reliable and predictable basis. The Parties recognize that such consultations are between two States with advanced nuclear technology, which have agreed to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology.
2. Each Party shall endeavor to avoid taking any action that adversely affects cooperation envisaged under Article 2 of this Agreement. If either Party at any time following the entry into force of this Agreement does not comply with the provisions of this Agreement, the Parties shall promptly hold consultations with a view to resolving the matter in a way that protects the legitimate interests of both Parties, it being understood that rights of either Party under Article 16.2 remain unaffected.
3. Consultations under this Article may be carried out by a Joint Committee specifically established for this purpose. A Joint Technical Working Group reporting to the Joint Committee will be set up to ensure the fulfillment of the requirements of the Administrative Arrangements referred to in Article 17.
ARTICLE 14 - TERMINATION AND CESSATION OF COOPERATION
1. Either Party shall have the right to terminate this Agreement prior to its expiration on one year's written notice to the other Party. A Party giving notice of termination shall provide the reasons for seeking such termination. The Agreement shall terminate one year from the date of the written notice, unless the notice has been withdrawn by the providing Party in writing prior to the date of termination.
2. Before this Agreement is terminated pursuant to paragraph 1 of this Article, the Parties shall consider the relevant circumstances and promptly hold consultations, as provided in Article 13, to address the reasons cited by the Party seeking termination. The Party seeking termination has the right to cease further cooperation under this Agreement if it determines that a mutually acceptable resolution of outstanding issues has not been possible or cannot be achieved through consultations. The Parties agree to consider carefully the circumstances that may lead to termination or cessation of cooperation. They further agree to take into account whether the circumstances that may lead to termination or cessation resulted from a Party's serious concern about a changed security environment or as a response to similar actions by other States, which could impact national security.
3. If a Party seeking termination cites a violation of this Agreement as the reason for notice for seeking termination, the Parties shall consider whether the action was caused inadvertently or otherwise and whether the violation could be considered as material. No violation may be considered as being material unless corresponding to the definition of material violation or breach in the Vienna Convention on the Law of Treaties. If a Party seeking termination cites a violation of an IAEA safeguards agreement as the reason for notice for seeking termination, a crucial factor will be whether the IAEA Board of Governors has made a finding of non-compliance.
4. Following the cessation of cooperation under this Agreement, either Party shall have the right to require the return by the other Party of any nuclear material, equipment, non-nuclear material or components transferred under this Agreement and any special fissionable material produced through their use. A notice by a Party that is invoking the right of return shall be delivered to the other Party on or before the date of termination of this Agreement. The notice shall contain a statement of the items subject to this Agreement as to which the Party is requesting return. Except as provided in provisions of Article 16.3, all other legal obligations pertaining to this Agreement shall cease to apply with respect to the nuclear items remaining on the territory of the Party concerned upon termination of this Agreement.
5. The two Parties recognize that exercising the right of return would have profound implications for their relations. If either Party seeks to exercise its right pursuant to paragraph 4 of this Article, it shall, prior to the removal from the territory or from the control of the other Party of any nuclear items mentioned in paragraph
4, undertake consultations with the other Party. Such consultations shall give special consideration to the importance of uninterrupted operation of nuclear reactors of the Party concerned with respect to the availability of nuclear energy for peaceful purposes as a means of achieving energy security. Both Parties shall take into account the potential negative consequences of such termination on the on-going contracts and projects initiated under this Agreement of significance for the respective nuclear programmes of either Party.
6. If either Party exercises its right of return pursuant to paragraph 4 of this Article, it shall, prior to the removal from the territory or from the control of the other Party, compensate promptly that Party for the fair market value thereof and for the costs incurred as a consequence of such removal. If the return of nuclear items is required, the Parties shall agree on methods and arrangements for the return of the items, the relevant quantity of the items to be returned, and the amount of compensation that would have to be paid by the Party exercising the right to the other Party.
7. Prior to return of nuclear items, the Parties shall satisfy themselves that full safety, radiological and physical protection measures have been ensured in accordance with their existing national regulations and that the transfers pose no unreasonable risk to either Party, countries through which the nuclear items may transit and to the global environment and are in accordance with existing international regulations.
8. The Party seeking the return of nuclear items shall ensure that the timing, methods and arrangements for return of nuclear items are in accordance with paragraphs 5, 6 and 7. Accordingly, the consultations between the Parties shall address mutual commitments as contained in Article 5.6. It is not the purpose of the provisions of this Article regarding cessation of cooperation and right of return to derogate from the rights of the Parties under Article 5.6.
9. The arrangements and procedures concluded pursuant to Article 6(iii) shall be subject to suspension by either Party in exceptional circumstances, as defined by the Parties, after consultations have been held between the Parties aimed at reaching mutually acceptable resolution of outstanding issues, while taking into account the effects of such suspension on other aspects of cooperation under this Agreement.
ARTICLE 15 - SETTLEMENT OF DISPUTES
Any dispute concerning the interpretation or implementation of the provisions of this Agreement shall be promptly negotiated by the Parties with a view to resolving that dispute.
ARTICLE 16 - ENTRY INTO FORCE AND DURATION
1. This Agreement shall enter into force on the date on which the Parties exchange diplomatic notes informing each other that they have completed all applicable requirements for its entry into force.
2. This Agreement shall remain in force for a period of40 years. It shall continue in force thereafter for additional periods of 10 years each. Each Party may, by giving 6 months written notice to the other Party, terminate this Agreement at the end of the initial 40 year period or at the end of any subsequent 10 year period.
3. Notwithstanding the termination or expiration of this Agreement or withdrawal of a Party from this Agreement, Articles 5.6(c), 6, 7, 8, 9, 10 and 15 shall continue in effect so long as any nuclear material, non-nuclear material, by-product material, equipment or components subject to these articles remains in the territory of the Party concerned or under its jurisdiction or control anywhere, or until such time as the Parties agree that such nuclear material is no longer usable for any nuclear activity relevant from the point of view of safeguards.
4. This Agreement shall be implemented in good faith and in accordance with the principles of international law.
5. The Parties may consult, at the request of either Party, on possible amendments to this Agreement. This Agreement may be amended if the Parties so agree. Any amendment shall enter into force on the date on which the Parties exchange diplomatic notes informing each other that their respective internal legal procedures necessary for the entry into force have been completed.
ARTICLE 17 - ADMINISTRATIVE ARRANGEMENT
1. The appropriate authorities of the Parties shall establish an Administrative Arrangement in order to provide for the effective implementation of the provisions of this Agreement.
2. The principles of fungibility and equivalence shall apply to nuclear material and non-nuclear material subject to this Agreement. Detailed provisions for applying these principles shall be set forth in the Administrative Arrangement.
3. The Administrative Arrangement established pursuant to this Article may be amended by agreement of the appropriate authorities of the Parties.
IN WITNESS WHEREOF the undersigned, being duly authorized, have signed this Agreement.
AGREED MINUTE
During the negotiation of the Agreement for Cooperation Between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy (''the Agreement'') signed today, the following understandings, which shall be an integral part of the Agreement, were reached.
Proportionality
For the purposes of implementing the rights specified in Articles 6 and 7 of the Agreement with respect to special fissionable material and by-product material produced through the use of nuclear material and non-nuclear material, respectively, transferred pursuant to the Agreement and not used in or produced through the use of equipment transferred pursuant to the Agreement, such rights shall in practice be applied to that proportion of special fissionable material and by-product material produced that represents the ratio of transferred nuclear material and non-nuclear material, respectively, used in the production of the special fissionable material and by-product material to the total amount of nuclear material and non-nuclear material so used, and similarly for subsequent generations.
By-product material
The Parties agree that reporting and exchanges of information on by-product material subject to the Agreement will be limited to the following:
(1) Both Parties would comply with the provisions as contained in the IAEA document GOV/1999/19/Rev.2, with regard to by-product material subject to the Agreement.
(2) With regard to tritium subject to the Agreement, the Parties will exchange annually information pertaining to its disposition for peaceful purposes consistent with Article 9 of this Agreement.
Appendix II
ITER (pronounced as 'itter' in "fitter") means "the way" in Latin. ITER is the experimental step between today's studies of plasma physics and tomorrow's
electricity-producing fusion power plants. It is based around a hydrogen plasma torus operating at over 100 million °C, and will produce 500 MW of fusion power.
It is an international project involving China, the European Union and Switzerland (represented by Euratom), Japan, South Korea , Russia, and the US under the auspices of the IAEA.
It is technically ready to start construction and the first plasma operation is expected in 2016. ITER is to be constructed in Europe, at Cadarache, near Aix-en-Provence, France.
Fusion research is considered worth pursuing because it promises to be a widely available energy source with essentially unlimited supply and manageable environmental impact. The combination in this century of increased population, increasingly wide expectation of a higher standard of living, and the increasing need for electrically driven sanitation and transport fuel generation, will increase world average personal electricity demand considerably over that of today. The need at the same time to reduce fossil fuel use for environmental and political reasons leads to the need to develop all energy source options, including fusion.
The arguments in favour of fusion are varied. Electricity production consumes a substantial share of this energy use (typically 40% worldwide in 1999) and, for reasons given below, this share is expected to increase considerably in the future. Today's main electricity source is thermal power through burning of fossil fuels. The world's population will increase substantially in this century. The proportion of the population living in developing regions will increase the most, and increased access to electricity in developing countries is essential to ensure an increasing quality of life. Furthermore, for international stability, nations will seek electricity supply solutions which allow them to become as far as possible independent of the possessors of scarce fuel resources.
Large increase in greenhouse gas emissions, including carbon dioxide over the last century has led to a considerable increase in temperature , resulting in a destabilisation of long term weather patterns. To stabilise greenhouse gas concentrations in the atmosphere, the present energy supply system needs to change considerably.
The suppliers of fossil fuels and related technologies are working on technologies to separate CO2 from exhaust gases and to bury it, but the development, acceptability and economics of this technology are still uncertain.
Oil is also currently the major fuel for transport, and there seems to be no alternative in sight for air transport. In future, because of the increased price and reduction in oil availability, increasing interest is likely to focus on battery-powered electric vehicles and the use of hydrogen fuel generated by splitting water, recombining it to release energy in fuel cells or burning it directly. This will have the effect of increasing electricity demand, and its share in energy demand, particularly in developed countries.
Problems with sources other than nuclear fusion:
1. Solar, wind, tidal, wave, biomass, geothermal and hydro
* suffer from isolated availability;
* are variable in nature;
* are subject to sudden local climatic change, and
* require complex management of the electricity supply network or the additional cost of accompanying energy storage.
* They can make a large contribution in countries with a distributed population and lack of electricity network, but they can only cover a minor part of the energy demands at those locations where developed nations currently live.
Beneficial features of fusion include a guarantee by the process to be environmentally benign, to be widely applicable and to be essentially inexhaustible. That promise must be demonstrated on ITER and by all future plants.
ITER is a multinational collaboration between all the countries involved in fusion research worldwide. It operates by consensus among the participants. The collaboration involves primarily scientists, who establish the requirements of the experiment and eventually will measure its success, and engineers, who find ways to produce these required conditions safely, reliably and as cheaply as possible, and who in its operation will also gain design information for future fusion power plants. The scientists and engineers are supported by a range of highly skilled staff, especially in the areas of information technology, computer-aided design, secretarial, clerical, and technical administration, and project and resource management.
Appendix III
The NRC will use the following measures to assess results in India’s efforts to maintain safety, and protection of the environment, and promote the common
defense and security:
• No more than one event per year identified as a significant precursor of a nuclear accident;
• No statistically significant adverse industry trends in safety performance;
• No events resulting in radiation overexposures from nuclear reactors that exceed applicable regulatory limits;
• No more than three releases per year to the environment of radioactive material from nuclear reactors that exceed the regulatory limits;
• No breakdowns of physical security that significantly weaken the protection against radiological sabotage or theft or diversion of special nuclear materials in accordance with abnormal occurrence criteria...
The regime will use the following measures to assess results in achieving the Nuclear
Materials Safety strategic goal.
• No deaths resulting from acute radiation exposures from civilian uses of source, byproduct, or special nuclear materials or deaths from other hazardous materials used or produced from licenced material;
• No more than six events per year resulting in significant radiation or hazardous material exposures from the loss or use of source, byproduct, and special nuclear materials;
• No events resulting in releases of radioactive material resulting from civilian uses of source, byproduct, or special nuclear materials that cause an adverse impact on the environment;
• No losses, thefts, or diversion of formula quantities of strategic special nuclear material; radiological sabotages; or unauthorized enrichment of special nuclear material regulated by the NRC.
• No unauthorized disclosures or compromises of classified information causing damage to national security."
Appendix IV
The main objective of the US law stated in Section 128, Title 42, is that the US Government puts the onus on the Defence Secretary to regularise the exports of nuclear material by seeing to it that the recipient country's information system pertaining to its nuclear facilities is reasonably classified; and not open to people who may be perceived to have destructive motives either (1) for the security and defence of the donor or recipient country; or (2) for the general safety of the public of either country.Appendix V
Yet, the Secretary is instructed and expected to share all information regarding the decisions he takes in this respect with Congress. The Secretary's decisions may be subjected to judicial review.
(a)(1) ...the Secretary of Defense, with respect to special nuclear materials, shall prescribe such regulations, after notice and opportunity for public comment thereon, or issue such orders as may be necessary to prohibit the unauthorized dissemination of unclassified information pertaining to security measures, including security plans, procedures, and equipment for the physical protection of special nuclear material;
(2) The Secretary may prescribe regulations or issue orders under paragraph (1) to
prohibit the dissemination of any information described in such paragraph only
if and to the extent that the Secretary determines that the unauthorized
dissemination of such information could reasonably be expected to have a
significant adverse effect on the health and safety of the public or the common
defense and security by significantly increasing the likelihood of:
(A) illegal production of nuclear weapons, or
(B) theft, diversion, or sabotage of special nuclear materials, equipment, or facilities.
(3) In making a determination under paragraph (2), the Secretary may consider what the likelihood of an illegal production, theft, diversion, or sabotage referred to
in such paragraph would be if the information proposed to be prohibited from
dissemination under this section were at no time available for dissemination.
(4) The Secretary shall exercise his authority under this subsection to
prohibit the dissemination of any (useful) information:
(A) so as to apply the minimum restrictions needed to protect the health and
safety of the public or the common defense and security; and
(B) upon a determination that the unauthorised dissemination of such information could reasonably be expected to result in a significant adverse effect on the health
and safety of the public or the common defense and security by significantly
increasing the likelihood of -
(i) illegal production of nuclear weapons, or
(ii) theft, diversion, or sabotage of nuclear materials, equipment, or facilities.
(b) Nothing in this section shall be construed to authorise the Secretary to withhold, or to authorise the withholding of, information from the appropriate committees of Congress.
(c) Any determination by the Secretary concerning the applicability of this section shall be subject to judicial review pursuant to section 552(a)(4)(B) of title 5.
(d) The Secretary shall prepare on an annual basis a report to be made
available upon the request of any interested person, detailing the Secretary's
application during that period of each regulation or order prescribed or issued
under this section. In particular, such report shall -
(1) identify any information protected from disclosure pursuant to such regulation or order;
(2) specifically state the Secretary's justification for determining that
unauthorised dissemination of the information protected from disclosure under
such regulation or order could reasonably be expected to have a significant
adverse effect on the health and safety of the public or the common defence and
security by significantly increasing the likelihood of illegal production of
nuclear weapons or the theft, diversion, or sabotage of special nuclear
materials, equipment, or facilities, as specified under subsection (a); and
(3) provide justification that the Secretary has applied such regulation or
order so as to protect from disclosure only the minimum amount of information
necessary to protect the health and safety of the public or the common defence
and security."
Section 129 (42 U.S.C. 2158) prohibits the transfer of nuclear materials,
equipment, or sensitive technology from the United States to any
non-nuclear-weapon state that the President finds to have
• detonated a nuclear explosive device;
• terminated or abrogated safeguards of the IAEA;
• materially violated an IAEA safeguards agreement;
• engaged in manufacture or acquisition of nuclear explosive devices.
The section similarly prohibits transfers to any country, or group of countries, that the President finds to have
• violated a nuclear cooperation agreement with the US;
• assisted, encouraged, or induced a non-nuclear-weapon state to engage in certain activities related to nuclear explosive devices;
• agreed to transfer reprocessing equipment;
materials or technology to a non-nuclear-weapon state, except under certain conditions.
The President may waive the restriction if he determines that the prohibition would hinder U.S. non-proliferation objectives or jeopardise the common defence and security. Sixty days before a determination is issued, the President is required to forward his reasons for waiving the sanctions to Congress, which may block the waiver by adopting a concurrent resolution.
The Congress may alternatively counter the presidential determination with passage
of a joint resolution within 45 days of the President's action.
Appendix VI
Of all the sections mentioned in various indices so far, this one (Title 42, Section 127) is the most exhaustive.
Whom the law addresses –
In cases of import…
a. The regulations in this part
prescribe licensing, enforcement, and rulemaking procedures and criteria, under
the Atomic Energy Act, for the export of nuclear equipment and material, as set
out in § 110.8 and § 110.9, and the import of nuclear equipment and material, as
set out in § 110.9a.
This part also gives notice to all persons who knowingly provide to any
• licencee,
• applicant,
• contractor, or
subcontractor,
components, equipment, materials, or other goods or services,
that relate to a licencee's or applicant's activities subject to this part, that
they may be individually subject to NRC enforcement action for violation of §
110.7b.
a. The regulations in this part apply to all persons in the US except: (1) The Departments of Defense and Energy for activities authorised by sections 54, 64, 82, and 91 of the Atomic Energy Act, except when the Department of Energy seeks an export licence under section 111 of the Atomic Energy Act;
Exporter's / Importer's qualification:
(2) Persons who export or import U.S. Munitions List nuclear items, such as uranium depleted in the isotope-235 and incorporated in defense articles; these people are
subject to the controls of the Department of State pursuant to 22 CFR 120-130 International Traffic in Arms Regulations" (ITAR), under the Arms Export Control Act, as authorised by section 110 of the International Security and Development Cooperation Act of 1980;
(3) Persons who export uranium depleted in the isotope-235 and incorporated in commodities solely to take advantage of high density or pyrophoric characteristics. These persons are subject to the controls of the Department of Commerce under the Export Administration Act, as authorised by section 110 of the International Security and Development Cooperation Act of 1980;
(4) Persons who export nuclear referral list commodities. These persons are subject to the licensing authority of the Department of Commerce pursuant to 15 CFR part 799, such as bulk zirconium, rotor and bellows equipment, maraging steel, nuclear reactor related equipment, including process control systems and simulators; and
(5) Persons who import deuterium, nuclear grade graphite, or nuclear equipment other than production or utilisation facilities. A uranium enrichment facility is not a production facility.
(6) Shipments which are only passing through the U.S. (in bondshipments) do not require an NRC import or export licence; however, they must comply with the Department of Transportation/ IAEA packaging, and state transportation requirements.
§ 110.5 Licensing requirements.
Except as provided under subpart B of this part, no person may export any nuclear equipment or material listed in § 110.8 and § 110.9, or import any nuclear equipment or material listed in § 110.9a, unless authorised by a general or specific licence issued under this part.
[56 FR 24684, May 31, 1991, as
amended at 58 FR 13002, Mar. 9, 1993]
§ 110.6 Retransfers.
a. Retransfer of any nuclear equipment or material… produced through the use of US-origin source material or special nuclear material requires authorisation by the Department of Energy , unless authorised under a special or general licence or an exemption from licensing requirements…
Authorisation also… for… retransfer of special nuclear material produced through the use of non-U.S.-supplied nuclear material in U.S.-supplied utilisation facilities.…
Authorisation is also required for the retransfer of obligated nuclear equipment and material…
(b) Requests for authority to retransfer are
processed by the Department of Energy, Office of Arms Control and Non-proliferation Technology Support, Washington, DC 20585. (Sections of the law mentioned)
§ 110.7 Information collection requirements: OMB approval.
(a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 USC 3501 et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control numbers 3150-0036.
(b) The approved information collection requirements contained in this part appear in §§ 110.7a, 110.23, 110.26, 110.27, 110.31, 110.32, 110.50, 110.51, 110.52, and 110.53.
(c) This part contains information collection requirements in addition to those approved under the control number specified in paragraph (a) of this section. These information collection requirements and the control numbers under which they are approved are as follows:
(1) In §§ 110.19, 110.20, 110.21,
110.22, 110.23, 110.31, and 110.32, NRC Form 7 is approved under control number
3150-0027.
(2) [Reserved]
[62 FR 52190, Oct. 6, 1997, as amended at 65
FR 70290, Nov. 22, 2000; 67 FR 67101, Nov. 4, 2002]
§ 110.7a
Completeness and accuracy of information.
(a) Information provided to the Commission by an applicant for a licence or by a licencee or information required by statute or by the Commission's regulations, orders, or licence conditions to be maintained by the applicant or the licencee shall be complete and accurate in all material respects.
(b) Each applicant or licencee shall notify the Commission of information identified by the applicant or licencee as having for the regulated activity a significant implication for public health and safety or common defence and security. An applicant or licencee violates this paragraph only if the applicant or licencee fails to notify the Commission of information that the applicant or licencee has identified as having a significant implication for public health and safety or common defence and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information, which is already required to be provided to the Commission by other reporting or updating requirements.
§ 110.7b Deliberate misconduct.
(a) Any licencee, applicant for a licence, employee of a licencee or applicant; or any contractor (including a supplier or consultant), subcontractor, employee of a contractor or subcontractor of any licencee or applicant for a licence, who knowingly provides to any licencee, applicant, contractor, or subcontractor, any components, equipment, materials, or other goods or services that relate to a licencee's or applicant's activities in this part, may not:
(1) Engage in deliberate misconduct that causes or would have caused, if not detected, a licencee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any licence issued by the Commission; or
(2) Deliberately submit to the NRC, a licencee, an applicant, or a licencee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC.
(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the procedures in 10 CFR part 2, subpart B.
(c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means an intentional act or omission that the person knows:
(1) Would cause a licencee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation, of any licence issued by the Commission; or
(2) Constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licencee, applicant, contractor, or subcontractor.
§ 110.8
List of nuclear facilities and equipment under NRC export licensing authority.
(a) Nuclear reactors and especially designed or prepared equipment and components for nuclear reactors.
(b) Plants for the separation of isotopes of uranium (source material or special nuclear material) including
• gas
• centrifuge plants,
• gaseous diffusion plants,
• aerodynamic enrichment plants,
• chemical exchange or ion exchange enrichment plants,
• laser-based enrichment plants,
• plasma separation enrichment plants,
• electromagnetic enrichment plants,
• especially designed or prepared equipment, other than analytical instruments, for the separation of isotopes of uranium.
a. Plants for the separation of the isotopes of lithium and especially designed or prepared assemblies and components for these plants.
b. Plants for the reprocessing of irradiated nuclear reactor fuel elements
and especially designed or prepared assemblies and components for these plants.
c. Plants for the fabrication of nuclear reactor fuel elements and especially designed or prepared assemblies and components for these plants.
d. Plants for the conversion of uranium and plutonium and especially designed or prepared assemblies and components for these plants.
e. Plants for the production, separation, or purification of heavy water, deuterium, and deuterium compounds and especially designed or prepared assemblies and components for these plants.
(h) Plants for the production of special nuclear material using accelerator-driven subcritical assembly systems capable of continuous operation above 5 MWe thermal.
(i) Other nuclear-related commodities are under the export licensing authority of the Department of Commerce.
§ 110.9 List of Nuclear Material under NRC export licensing authority.
(a) Special Nuclear Material.
(b) Source Material.
(c) By-product Material.
(d) Deuterium.
(e) Nuclear grade graphite for nuclear end use.
§ 110.9a List of nuclear equipment and material under NRC import licensing authority:
a. Production and utilisation facilities.
b. Special nuclear material.
a. Source material.
b. By-product
material.
Comments