U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

Congressional research reportJan 11, 2011

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U.S.-Russian Civilian Nuclear Cooperation

Agreement: Issues for Congress

Mary Beth Nikitin

Analyst in Nonproliferation

January 11, 2011

Congressional Research Service

7-....

www.crs.gov

RL34655

CRS Report for Congress

Prepared for Members and Committees of Congress

U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

Summary

The bilateral nuclear cooperation agreement between the United States and Russia entered into

force after an exchange of diplomatic notes on January 11, 2011. The United States and Russia

signed a civilian nuclear cooperation agreement on May 6, 2008. President Bush submitted the

agreement to Congress on May 13. The agreement was withdrawn from congressional

consideration by President George W. Bush on September 8, 2008, in response to Russia’s

military actions in Georgia. President Obama transmitted the proposed text of the agreement to

Congress on May 10, 2010, along with the required Nuclear Proliferation Assessment Statement

(NPAS) and his determination that the agreement promotes U.S. national security. Under U.S.

law, Congress had 30 days of continuous session for consultations with the Administration,

followed by an additional 60 days of continuous session to review the agreement. Since it was not

opposed by a joint resolution of disapproval or other legislation, the agreement was considered

approved at the end of this time period on December 8, 2010.

This report discusses key policy issues related to the agreement, including future nuclear energy

cooperation with Russia, U.S.-Russian bilateral relations, nonproliferation cooperation, and

Russian policies toward Iran. These issues were relevant to the debate when the agreement was

being considered in the 111th and 110th Congresses.

This report will be updated as events warrant.

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U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

Contents

Background ................................................................................................................................2

Congressional Consideration.................................................................................................3

Legislation in the 110th Congress.....................................................................................3

Legislation in the 111th Congress .....................................................................................5

Nuclear Energy and Nonproliferation Cooperation ......................................................................7

Nuclear Liability ...................................................................................................................9

U.S.-Russian Relations................................................................................................................9

Russian Policy Toward Iran....................................................................................................... 10

Contacts

Author Contact Information ...................................................................................................... 12

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U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

n May 10, 2010, President Obama transmitted the proposed text of the U.S.-Russian

civilian nuclear cooperation agreement to Congress for approval, along with the required

Nuclear Proliferation Assessment Statement (NPAS) and his determination that the

agreement promotes U.S. national security. The annexed classified NPAS was to be submitted

separately. The agreement was signed by the two countries in Moscow on May 6, 2008. President

George W. Bush first submitted it to Congress on May 13, 2008,1 but in September 2008

rescinded the national security determination following Russian military actions in the Republic

of Georgia. This had the effect of removing the agreement from congressional consideration.

President Obama stated his commitment to seeing the agreement enter into force in summit

statements with Russian President Medvedev in April and July 2009. President Obama’s May 10,

2010, letter of transmittal says that the situation in Georgia is no longer an obstacle and that “the

level and scope of U.S.-Russian cooperation on Iran are sufficient to justify resubmitting the

proposed agreement.”2

According to President Obama’s letter, the agreement meets all the terms of the Atomic Energy

Act3 and therefore does not require any exemptions from the law’s requirements. Therefore, the

agreement would enter into effect after a 30-day consultation period and a review period of 60

days of continuous session4 unless Congress enacted a joint resolution of disapproval. Congress

also had the option of adopting either a joint resolution of approval with (or without) conditions,

or standalone legislation that could approve or disapprove the agreement.5

The agreement permits the export, subject to licensing, of technology, material, equipment, and

components for nuclear research and nuclear power production. The agreement does not permit

transfer of restricted data. The agreement needs to be amended before any transfer of sensitive

nuclear technology, sensitive nuclear facilities, and major critical components of those facilities.

The parties would also need to agree to reprocessing of material transferred under the agreement.

Some limited enrichment and blending or down-blending for LEU fuel production would be

permitted.

The bilateral nuclear cooperation agreement between the United States and Russia entered into

force after an exchange of diplomatic notes on January 11, 2011. At the entry into force

ceremony, U.S. officials emphasized that the agreement would improve cooperation in nuclear

terrorism prevention, nonproliferation, and development of new nuclear technologies. 6

http://www.whitehouse.gov/news/releases/2008/05/20080513-1.html.

Message from the President regarding a Peaceful Nuclear Agreement with Russia, May 10, 2010,

http://www.whitehouse.gov/the-press-office/message-president-regarding-a-peaceful-nuclear-agreement-with-russia.

Under section 123.a., codified at 42 U.S.C. 2153(a)), Atomic Energy Act of 1946, ch. 724, 60 Stat. 755 (1946), as

amended.

Days on which either House is in a recess of more than three days (pursuant to a concurrent resolution authorizing the

recess) do not count toward the total. If Congress adjourns its session sine die, continuity is broken, and the count starts

anew when it reconvenes.

See CRS Report RL34541, Nuclear Cooperation Agreement with Russia: Statutory Procedures for Congressional

Consideration and Their Implementation, by (name redacted).

“The U.S.-Russia 123 Agreement,” Press Release, U.S. Embassy, Moscow, January 11, 2011,

http://moscow.usembassy.gov/pr_011111.html.

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Background

Section 123 of the U.S. Atomic Energy Act (AEA) of 1954 (42 U.S.C. 2011 et seq.) governs

significant nuclear cooperation between the United States and other states.7 The United States has

agreements for civil nuclear cooperation in place with almost 50 countries. Such agreements,

known as “123 agreements,” provide the framework and authorization for cooperation, but do not

guarantee certain exports, technology, or material. Before significant nuclear exports8 can occur,

the State Department, with the advice of the Department of Energy, negotiates an agreement,

which must meet criteria listed in Section 123.a., (1) through (9), 42 U.S.C. 2151.9

Cooperation between the United States and Russia on civilian nuclear energy is not new, but the

level has fluctuated depending on broader political developments. The United States and the

Soviet Union concluded a limited 10-year agreement for nuclear cooperation in 1973 to allow for

cooperation in controlled thermonuclear fusion, fast breeder reactors, and fundamental research.

The 1973 agreement also established a Joint Committee on Cooperation in the Peaceful Uses of

Atomic Energy that was to meet annually. This agreement was extended in 1983 and in 1988, and

exchanges on safety practices significantly increased after the 1986 Chernobyl power plant

accident. The two superpowers convened a Joint Coordinating Committee for Civilian Reactor

Safety starting in 1988.10

After the fall of the Soviet Union and prior to July 2006, Moscow’s nuclear commerce with Iran

presented the chief obstacle to concluding a broad U.S.-Russian nuclear cooperation under

section 123. Project-specific agreements were concluded throughout this period. Several factors

may have contributed to the shift in U.S. policy under the George W. Bush Administration: a

tougher line by Moscow since 2003 with respect to Iran, especially Russia’s agreement with Iran

to take back spent nuclear fuel from the Russian-built Bushehr reactor; President Bush’s embrace

of nuclear power as an alternative to reliance on hydrocarbons; President Bush’s proposals to

multi-lateralize the nuclear fuel cycle and develop proliferation-resistant technologies through the

Global Nuclear Energy Partnership (GNEP); and Russia’s own proposals to host an international

fuel center that would store and reprocess spent fuel and enrich uranium for fresh fuel.

Under the Obama Administration, officials have expressed support for the nuclear cooperation

agreement with Russia, but were waiting for the “appropriate time” to submit the agreement to

Congress.11 President Obama’s letter of May 10, 2010, outlines ways in which the current

Administration sees this agreement as being beneficial for U.S. interests, primarily in that it

Nuclear cooperation includes the distribution of special nuclear material, source material, and byproduct material, to

licensing for commercial, medical, and industrial purposes. These terms, “special nuclear material,” “source material,”

and “byproduct material,” as well as other terms used in the statute, are defined in 42 U.S.C. §2014. See also CRS

Report RS22937, Nuclear Cooperation with Other Countries: A Primer, by (name redacted) and Mary Beth Nikitin.

Significant nuclear cooperation includes the physical transfer of reactors, reactor components, or special nuclear

material, source material, and byproduct material, under license for commercial, medical, and industrial purposes.

The Atomic Energy Act also sets out procedures for licensing exports to states with whom the United States has

nuclear cooperation agreements. (Sections 126, 127, and 128 codified as amended at 42 U.S.C. 2155, 2156, 2157.)

Even with a 123 agreement in place, each export of nuclear material, equipment, or technology requires a specific

export license or other authorization.

CRS Report 89-671, U.S.-Soviet Nuclear Energy Cooperation: Time for a Full Scope Agreement? by Warren H.

Donnelly (out of print; available from the author upon request).

Hearing of the Terrorism, Nonproliferation and Trade Subcommittee of the House Foreign Affairs Committee, “The

Future of U.S. International Nuclear Cooperation,” May 6, 2010.

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U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

would contribute to “the growth of clean, safe and secure nuclear energy for peaceful purposes.”

The letter cites several areas of recent “progress” in cooperation between the United States and

Russia:

•

Russian support for a new United Nations Security Council Resolution on Iran.

•

Signature on April 8, 2010, of the New START Treaty that would reduce the

number of deployed strategic nuclear weapons.12

•

Signature on April 13, 2010, of the Protocol to amend the 2000 U.S. Russian

Plutonium Management and Disposition Agreement, which will dispose of at

least 34 metric tons of excess weapons plutonium in each country.

•

Russia’s establishment of an international nuclear fuel reserve in Angarsk.

•

Continued joint support for the Global Initiative to Combat Nuclear Terrorism.

Congressional Consideration

Congressional debate over the agreement in the past has focused on several key issues: the nature

of Russian-Iranian cooperation, the impact of a U.S.-Russian agreement on the future of nuclear

fuel cycle policies, and the impact of the agreement on bilateral relations including nuclear

nonproliferation cooperation. While some view the agreement as promoting bilateral cooperation

on U.S. nonproliferation goals and as a recognition of recent Russian cooperation, others believe

the United States could gain leverage on negotiations with Russia on Iran and other matters by

delaying approval of the agreement. Congressional consideration of the agreement ended on

December 8, 2010. No joint resolutions disapproving the agreement were adopted, paving the

way for entry into force.

Legislation in the 110th Congress

Even before the crisis in the Republic of Georgia in August 2008, approval of a U.S.-Russia 123

agreement by Congress was not certain. Legislation both supporting and opposing the agreement

was introduced in the 110th Congress:

•

Representative Edward Markey on May 14, 2008, introduced H.J.Res. 85

expressing disfavor of the agreement.

•

On June 24, 2008, Chairman of the Senate Foreign Relations Committee Joseph

Biden and Senator Richard Lugar submitted a joint resolution of approval,

S.J.Res. 42. It was discharged from committee but indefinitely postponed by

unanimous consent in September 2008.

•

Chairman of the House Committee on Foreign Affairs Howard Berman and

Ranking Member Ileana Ros-Lehtinen introduced a resolution of disapproval,

H.J.Res. 95, on June 24, 2008.

•

The House Committee on Foreign Affairs reported H.R. 657413 on July 23, 2008.

This bill would have approved the U.S.-Russia 123 agreement, notwithstanding

CRS Report R41219, The New START Treaty: Central Limits and Key Provisions, by (name redacted)

The United States-Russian Federation Nuclear Cooperation Agreement Act of 2008.

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the AEA, with certain conditions. Under this resolution, no license could be

issued for the export of nuclear material, equipment, or technology to Russia

unless the President certified to Congress that Russia (1) is not transferring

sensitive nuclear, biological- or chemical-weapons-related, ballistic or cruise

missile technologies, goods, or services to Iran; (2) is cooperating with the

United States on international sanctions on Iran; and (3) had ratified appropriate

nuclear liability conventions or enacted domestic laws to protect U.S. firms.

In response to Russian actions in August over the conflict in Georgia, some members of Congress

called on the Bush Administration to withdraw the agreement from congressional consideration. 14

There was no precedent for the President withdrawing a 123 from congressional consideration,

and the Atomic Energy Act does not specify procedures for doing so. On September 8, 2008, the

Secretary of State issued a statement saying that the President would notify Congress that “he has

today rescinded his prior determination” regarding the agreement and therefore there is no basis

for Congress to consider it. Secretary Rice states that “the U.S. nonproliferation goals contained

in the proposed Agreement remain valid: to provide a sound basis for U.S.-Russian civil nuclear

cooperation, create commercial opportunities, and enhance cooperation with Russia on important

global nonproliferation issues.” She expresses regret for the decision but says that “unfortunately,

given the current environment, the time is not right for this agreement.”15 In his message to

Congress, President Bush wrote that this decision is “in view of recent actions by the Government

of the Russian Federation incompatible with peaceful relations with its sovereign and democratic

neighbor Georgia.” In the original determination of May 5, 2008 (Presidential Determination

2008-19), the President determined that the agreement will promote and will not pose an

unreasonable risk “to the common defense and security.”16 The President’s message of September

8 says this determination “is no longer effective.” It also says that “if circumstances should permit

future reconsideration of the proposed Agreement, a new determination will be made and the

proposed Agreement will be submitted for congressional review pursuant to section 123 of the

Act.”17

Additional legislation proposed in the 110th Congress focused on Iran’s nuclear programs and also

sought to condition nuclear cooperation with Russia. The Iran Counter-Proliferation Act of 2007

(H.R. 1400), passed by the House, would prohibit any “agreement for cooperation between the

United States and the government of any country that is assisting the nuclear program of Iran or

transferring advanced conventional weapons or missiles to Iran.” Similarly, S. 970 specifically

would have prohibited a 123 agreement with Russia until “Russia has suspended all nuclear

assistance to Iran and all transfers of advanced conventional weapons and missiles to Iran” or

“Iran has completely, verifiably, and irreversibly dismantled all nuclear enrichment-related and

reprocessing-related programs.”

For example, House Foreign Affairs Committee Republicans press release, August 19, 2008,

http://foreignaffairs.republicans.house.gov/list/press/foreignaffairs_rep/081908123.shtml, and Joseph Biden, “Op-Ed:

Russia Must Stand Down,” The Financial Times, August 12, 2008.

Statement on U.S.-Russia 123 Agreement, September 8, 2008, at http://www.state.gov/secretary/rm/2008/09/

109256.htm.

http://www.whitehouse.gov/news/releases/2008/05/20080506-4.html.

Message to the Congress of the United States, September 8, 2008, at http://georgewbush-whitehouse.archives.gov/

news/releases/2008/09/20080908-3.html.

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The Iran Sanctions Act of 2008 (S. 3227) included a prohibition on entering into a nuclear

cooperation agreement with Russia or granting licenses for the direct or indirect export or the

direct or indirect transfer of nuclear-related goods, services, or technologies to Russia until certain

presidential certifications are made. S. 3227 was reported out of the Senate Finance Committee

on July 7, 2008, but was not passed by the full Senate.

The Security through Termination of Proliferation Act of 2008 (H.R. 6178, introduced on June 4,

2008) included similar provisions, including that a nuclear cooperation agreement with a country

proliferating to Iran, North Korea, or Syria may not enter into force. These bills, as well as letters

sent to the President from members of Congress after submittal of the 123 agreement to the

Congress, showed a linkage between Russia’s policies toward Iran and support for a bilateral

civilian nuclear accord in Congress.

The 2008 Nuclear Proliferation Assessment Statement (NPAS)

In 2008, some members of Congress raised concerns about the information contained in the

Nuclear Proliferation Assessment Statement (NPAS). The NPAS is described in section 123.a. (42

U.S.C. 2153(a)) and is a required part of a 123 agreement package for Congress. An unclassified

NPAS is submitted along with the proposed text of the agreement, and a classified annex is

submitted separately. The NPAS is to be prepared by the State Department in consultation with

the Director of National Intelligence. Its purpose is to explain how the agreement meets the AEA

nonproliferation requirements. The unclassified NPAS usually includes an overview of the

country’s nuclear energy program and related infrastructure, nuclear weapons program (if

relevant), nonproliferation policies, and relations with third countries of concern in the nuclear

arena.

Some members of Congress were concerned that the 2008 NPAS for the US-Russia 123

agreement excluded information regarding nuclear trade between Russia and Iran. This prompted

then-Chairman of the House Energy and Commerce Committee John Dingell and Subcommittee

on Oversight and Investigations Chairman Bart Stupak to request that the Government

Accountability Office (GAO) evaluate the inter-agency process for development of U.S.-Russia

NPAS, whether the NPAS conclusions were supported, and whether any information was omitted

that might change these conclusions.18 The GAO also lists Chairman Henry Waxman and

Representative Edward Markey as report requesters. The GAO issued its report in July 2009.19

The findings were related primarily to the inter-agency review process and recommended that the

State Department should clarify interagency roles, allow adequate time for review by the

intelligence community and the Nuclear Regulatory Commission, and establish written

procedures for development and review of 123 agreements and associated documents.

Legislation in the 111th Congress

Upon the Obama Administration’s transmittal of the agreement to Congress in 2010, Chairman of

the House Foreign Affairs Committee Howard Berman said that the top nonproliferation policy

priority should be preventing Iran from obtaining nuclear weapons and that “at the appropriate

http://energycommerce.house.gov/Press_110/110-ltr.052208.GAO.123.ltr.pdf.

“U.S.-Russia Nuclear Agreement: Interagency Process Used to Develop the Classified Nuclear Proliferation

Assessment Needs To Be Strengthened,” http://www.gao.gov/new.items/d09743r.pdf.

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time, we will examine the agreement more fully.”20 Three joint resolutions were introduced in the

House, and referred to the House Foreign Affairs Committee, two expressing disfavor and one

providing for approval of the agreement:

•

On May 21, 2010, Representative Edward Markey and co-sponsor

Representative Jeff Fortenberry introduced a joint resolution (H.J.Res. 85)

expressing disfavor of the proposed agreement.

•

On June 21, 2010, House Foreign Affairs Committee Chairman Howard Berman

and co-sponsor Representative Dana Rohrabacher introduced a joint resolution

that provides for approval of the proposed agreement (H.J.Res. 91).

•

On June 21, 2010, House Foreign Affairs Committee Ranking Member Ileana

Ros-Lehtinen, with Representatives Dan Burton and Edward Royce, introduced a

joint resolution that provides for disapproval of the proposed agreement (H.J.Res.

92).

Senate Foreign Relations Committee Chairman John Kerry and Ranking Member Richard Lugar

introduced a joint resolution (S.J.Res. 34) that would approve the proposed agreement on June 21,

2010. It was referred to the Senate Foreign Relations Committee. As stated above, no positive

action by Congress is required for the agreement to enter into force after the congressional review

period expires.

The Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010

The Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA) of 2010 was

signed by the President on July 1, 2010 (P.L. 111-195). Section 3 (9) of the bill says that it is the

sense of Congress that no export licenses should be given under a civilian nuclear cooperation

(123) agreement if the recipient country “is providing similar nuclear material, facilities,

components, or other goods, services, or technology to another country that is not in full

compliance with its obligations under the Nuclear Non-Proliferation Treaty, including its

obligations under the safeguards agreement between that country and the International Atomic

Energy Agency,” unless the President determines that such transfers would not undermine U.S.

nonproliferation objectives.

Section 102, subsection a, of the bill prohibits the issuance of export licenses under a 123

agreement for “any country whose nationals have engaged in activities with Iran relating to the

acquisition or development of nuclear weapons or related technology, or of missiles or other

advanced conventional weapons that have been designed or modified to deliver a nuclear

weapon.” The President can waive the provision by making a determination and notification to

the appropriate congressional committees that the country did not know or have reason to know

about the activity, or if the country is taking “all reasonable steps” to prevent recurrence and

penalize the person involved.

An earlier House report (H.Rept. 111-342) states that “the Committee believes that a country that

is, as a matter of policy or through willful inaction, allowing its citizens or companies to provide

“Chairman Berman responds to Administration’s U.S.-Russia nuclear proposal,” House Committee on Foreign

Affairs Press Release, May 11, 2010.

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equipment, technology or materials to Iran that make a material contribution to its nuclear

capabilities should not at the same time benefit from nuclear cooperation with the United States.”

Nuclear Energy and Nonproliferation Cooperation

The United States and Russia cooperate on a variety of nuclear nonproliferation and nuclear

energy initiatives, under ad hoc agreements.21 While this cooperation is focused primarily on

nuclear nonproliferation measures, in recent years the United States and Russia have explored

ways to develop civilian nuclear energy cooperation. Presidents Bush and Putin in July 2006

established a working group22 whose report defined an Action Plan for cooperation that led to the

bilateral Presidential Declaration on Nuclear Energy and Nonproliferation of July 3, 2007.23 In an

effort to continue this process and as part of the Obama Administration’s “reset” of relations with

Russia, in July 2009 Presidents Obama and Medvedev established a Bilateral Presidential

Commission that included a Working Group on Nuclear Energy and Security chaired by Sergei V.

Kiriyenko, Head of Rosatom, and Daniel Poneman, Deputy Secretary of Energy. The July 2009

Joint Statement reaffirmed their intention to bring a bilateral nuclear cooperation agreement into

force and said that the two countries would focus on:

•

development of prospective and innovative nuclear energy systems;

•

research into methods and mechanisms for the provision of reliable nuclear fuel

cycle services;

•

research into international approaches for the establishment of nuclear fuel cycle

services to secure the nuclear weapons nonproliferation regime; and

•

improvement of the international safeguards system.

The working group agreed on an Action Plan for nuclear security and civil nuclear energy

cooperation in September 2009. A commission report said that the working group identified

research and development areas for collaboration and is working on a “new fuel services

framework.”24 An argument in favor of the agreement is that the United States could gain from

Russian advanced fuel cycle research and development experience. 25 Because the United States

does not operate fast neutron reactors or reprocess, testing of fuels could be done in Russia,

including post-irradiation examination. Supporters argue that U.S. partnership in developing these

technologies could help ensure that proliferation resistance remains a priority. On the other hand,

critics point out that the agreement risks entrenching a policy of accepting reprocessing as a

necessary part of the future of nuclear energy and that this would raise proliferation risks.

See CRS Report RL31957, Nonproliferation and Threat Reduction Assistance: U.S. Programs in the Former Soviet

Union, by (name redacted).

“Joint Working Group on the Development of a Bilateral Action Plan to Enhance Global and Bilateral Nuclear

Energy Cooperation,” at http://www.doe.gov/news/4553.htm.

Text of Declaration on Nuclear Energy and Nonproliferation Joint Actions, July 3, 2007, at

http://moscow.usembassy.gov/st_07032007.html.

“Joint Statement by the U.S. - Russia Bilateral Presidential Commission Coordinators on Commission Progress,”

December 31, 2009, http://moscow.usembassy.gov/st_123109.html.

“Business Groups Urge Support of US Russia Nuclear Agreement,” July 11, 2008, http://www.usaengage.org/

index.php?option=com_content&task=view&id=473&Itemid=71.

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The proposed agreement could provide Russia with access to U.S. nuclear technologies and

markets, and would open the possibility of receiving U.S.-origin nuclear materials into Russia for

storage or processing. Some argue that the agreement might be construed as a U.S. stamp of

approval for Russia’s civilian nuclear industry when safety and environmental problems with the

Russian nuclear industry remain. Others counter that only through such an agreement will U.S.

safety technology and standards be available to Russia. Russia could potentially expand its reach

into new nuclear power markets by adding U.S. safety and automated control systems to its

exported reactors, or partnering with U.S. multinationals. Russia could also potentially improve

the operational efficiency of its own reactors with U.S. technology.26

The United States and Russia both promote a future global nuclear energy framework that

addresses emerging nuclear energy states’ fuel needs while dissuading them from pursuing

indigenous enrichment and reprocessing technologies. This includes a “cradle to grave” approach

to nuclear fuel. As part of this effort, recent Russian nuclear power plant exports, such as with

Turkey, are a “package deal” that would include construction, operation, fuel services, and spent

fuel return. 27 Broader proposals to discourage new states from building fuel cycle facilities

include the development of multilateral fuel assurances and international fuel service centers.28

For this purpose, Russia has set up the joint venture International Uranium Enrichment Center at

Angarsk, which is under international safeguards. An international LEU fuel reserve will also be

hosted at the site. Proponents of the agreement say that collaboration between the United States

and Russia on providing nuclear fuel cycle services to nonnuclear weapon states could increase

the confidence of customer states and therefore increase participation.

Experts and policy makers have also been exploring what role Russia could play in addressing the

issue of nuclear waste and spent fuel disposition. Some have proposed that a 123 agreement with

Russia could open the possibility of reprocessing U.S.-origin spent fuel from third countries

(although Russia has not yet decided to do this) or long-term spent fuel storage of such material

in Russia.29 The enrichment of U.S.-obligated reprocessed uranium, and the re-enrichment of U.S.

uranium tails or U.S.-origin tails, using Russian enrichment facilities, could likewise occur only if

a 123 agreement was in force. 30 Under Article 9 of the proposed agreement, conversion and

enrichment to less than 20%, fabrication of LEU fuel, irradiation, blending, or down-blending to

LEU would be permitted under the agreement. The parties would have to agree to reprocessing of

U.S.-origin spent fuel before this occurred.

Anton Khlopkov, “What Will a Nuclear Agreement with the United States Bring Russia?” Security Index, No. 2 (82),

Volume 13.

“Akkuyuu plant construction to begin in 2011, says Turkish energy ministry,” Platts Nucleonics Week, May 27,

2010.

See CRS Report RL34234, Managing the Nuclear Fuel Cycle: Policy Implications of Expanding Global Access to

Nuclear Power, coordinated by Mary Beth Nikitin.

According to the Atomic Energy Act, this would be considered a subsequent arrangement, under Section 131.

Analysts discuss the possibility of Russia establishing an International Spent Fuel Storage Facility (ISFSF) that could

accept U.S.-origin spent fuel, for example from Taiwan or South Korea, or as part of a Russian fuel leasing and return

program for future nuclear power plants abroad.

Import of tailings to Russia from European countries was halted in 2007 because of public protest and environmental

concerns. “Russia quits uranium tailings imports over safety concerns,” RIA Novosti, June 22, 2007. Existing contracts

will be fulfilled (two with URENCO until 2009; two with EURODIF until 2014).

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Nuclear Liability

For these potential areas of cooperation to be realized, however, nuclear liability coverage for

U.S. companies doing business in Russia would need to be clarified. The Russian Federation has

been party to the Vienna Convention on Civil Liability for Nuclear Damage since 2005. However,

Rosatom Corporation enjoys sovereign immunity as a partially state-owned enterprise. Russia has

not yet signed or ratified the Convention on Supplementary Compensation for Nuclear Damage

(CSC).31 Currently, ad hoc bilateral agreements with liability coverage are in place for U.S. safety

and nonproliferation assistance programs. Some U.S. companies have stated that they would need

Russia to ratify the CSC or adopt domestic laws that would provide liability protection for U.S.

firms before doing business in Russia. In a 2003 letter to the Bush Administration, the

Contractors International Group on Nuclear Liability (CIGNL) wrote that “the various bilateral

and multilateral indemnity agreements that have been concluded to date are not considered to

provide adequate nuclear liability protection by most large, well-capitalized U.S. companies.”32

As cited above, the proposed legislation reported out of the House Foreign Affairs Committee

(H.R. 6574) in 2008 would have approved the agreement with conditions that included the

stipulation that Russia would have to ratify appropriate nuclear liability conventions or enact

domestic laws to protect U.S. firms before a license under the agreement could be issued.

U.S.-Russian Relations33

The main focus of U.S.-Russia relations at the beginning of the Obama Administration was the

negotiation of a follow-on Strategic Arms Reduction Treaty. 34 However, Presidents Obama and

Medvedev set up a process to review engagement in many sectors, as part of a “reset.” The

NATO-Russia Council resumed its meetings in April 2009, and in July 2009, the Russian

president announced that Russia would grant supply rights to NATO forces in Afghanistan

overland and in Russian airspace. Differences remain over a number of foreign policy issues,

particularly Russian military bases in and diplomatic recognition of Abkhazia and South Ossetia,

characteristics of future missile defense systems in Eastern Europe, the expansion of NATO and

how to deal with the Iranian nuclear program. In this context, some argue that expanding

cooperation with Russia on civilian nuclear energy is premature. Others argue that

nonproliferation, nuclear terrorism prevention, and nuclear energy may have particular value for

the bilateral relationship in this context, and that a 123 agreement could be used to influence

Russian policies. 35

The United States’ ratification of the CSC came into effect on May 21, 2008. The CSC has not yet entered into force.

Article XX.1 of the CSC states that it “shall come into force on the ninetieth day following the date on which at least 5

States with a minimum of 400,000 units of installed nuclear capacity have deposited an instrument referred to in Article

XVIII.” Thirteen countries have signed the CSC, but only four have ratified it.

See letter from the Contractors International Group on Nuclear Liability of December 18, 2003, annexed to the

testimony of Henry Sokolski to the House Committee on Foreign Affairs, June 12, 2008, at

http://foreignaffairs.house.gov/110/sok061208.pdf.

See also CRS Report RL33407, Russian Political, Economic, and Security Issues and U.S. Interests, coordinated by

(name redacted).

CRS Report R41219, The New START Treaty: Central Limits and Key Provisions, by (name redacted).

Richard Lugar and Sam Nunn, “Help Russia Help Us,” New York Times, May 30, 2008, at http://www.nytimes.com/

2008/05/30/opinion/30lugar.html?th&emc=th.

Congressional Research Service

U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

U.S. Ambassador Burns remarked at the May 2008 signing ceremony that the 123 agreement

marks Washington and Moscow’s transition from “nuclear rivals” to “nuclear partners.” Although

a 123 agreement does not itself stipulate new programs or collaborative projects, it may have

symbolic value and remove a longtime irritant in bilateral relations. Supporters of the agreement

with Russia argued that rejecting the agreement could embolden anti-U.S. sentiment and be

counter-productive to cooperation in other areas. Critics countered that its symbolic value is a

reason not to enact it—it could be viewed as a reward for a Russian government that critics view

as antidemocratic and repressive, and whose foreign policy often has been at odds with U.S.

interests. President Bush’s rescission of the national security determination as related to the

proposed 123 agreement in 2008 following Russian military actions in Georgia clearly

demonstrated the possibility of other foreign policy priorities overshadowing U.S.-Russian

nuclear energy cooperation.

Russian Policy Toward Iran

During the Clinton Administration and the early Bush Administration, the United States had a

policy not to conclude a civilian nuclear cooperation agreement with Russia while it was building

a nuclear power reactor for Iran at Bushehr. After details about Iran’s clandestine nuclear

activities came to light during 2002-2006, Russia began to step up cooperation with the United

States and other countries negotiating with Iran over its nuclear program. Russia has insisted on

IAEA safeguards on any transfers to Iran’s civilian nuclear reactor at Bushehr. The 2005 RussianIranian agreement on fuel supply for Bushehr requires the return of spent fuel to Russia, in order

to prevent Iran from extracting plutonium from the spent fuel. Moscow also invited Tehran to

participate in its newly established international uranium enrichment center at Angarsk, as an

alternative to an indigenous Iranian enrichment capability—an offer that Iran has rejected. The

Bush Administration supported this approach and since 2002 no longer objected to Russia’s

building the Bushehr nuclear power plant in Iran. The Bush and Obama Administrations viewed

the Russian provision and take-back of nuclear fuel for the Bushehr reactor as demonstrating that

it is possible for Iran to have access to nuclear energy without developing its own fuel cycle. 36

Russia has generally been only reluctantly supportive of U.N. Security Council Resolutions

(UNSCRs) imposing sanctions on Iran, preferring a primarily diplomatic solution to the crisis.

However, President Putin signed decrees to fully implement UNSCRs 1737, 1747, and 1803 in

2008,37 and Russia also supported UNSCR 1835. In 2009, Russia and the United States worked

closely on proposals to supply the Tehran Research Reactor with fuel.38 In June 2010, Russia

supported a new U.N. Security Council sanctions resolution (UNSCR 1929). In general, analysts

argue that Russian and American views about the nature of the Iranian nuclear program have

come closer in recent years, particularly following the revelation in September 2009 of the

enrichment facility being built at Qom.

Continued questions about the nature and extent of Russian cooperation with Iran were an

obstacle to approval of the 123 agreement by Congress. The 2006 Iran Freedom Support Act (P.L.

109-293) stated the sense of Congress that no nuclear cooperation agreement should be entered

Nuclear Proliferation Assessment Statement, 2008, 2010.

“Medvedev Likely to Face Problems with Iran,” RIA Novosti, May 13, 2008, at http://en.rian.ru/analysis/20080513/

107253545.html.

CRS Report RL34544, Iran’s Nuclear Program: Status, by (name redacted).

Congressional Research Service

U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

into with a country that is assisting the nuclear program of Iran. As noted above, the

Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2009 (H.R. 2194)

amended the Iran Support Act to prohibit peaceful nuclear cooperation with a country if one of its

citizens or companies was assisting Iran in its nuclear weapons program.

Both the 2008 and 2010 NPAS state that the United States “has received assurances from Russia

at the highest levels that its government would not tolerate cooperation with Iran in violation of

its U.N. Security Council obligations.” Some reports in 2008 said that Russian entities had

transferred sensitive nuclear technology to Iran, but this activity was ended by high-level Russian

governmental intervention and assurances were given to the highest levels of the U.S.

government.39 Additional details on the proliferation concerns associated with Russian-Iranian

cooperation are possibly part of the classified annex.

The 2009 Director of National Intelligence report to Congress on WMD Acquisition says that

“entities in Russia and China continue to sell technologies and components in the Middle East

and South Asia that are dual use and could support WMD and missile programs…. Russian

entities have provided assistance to missile and civil nuclear programs in Iran and India.” The

report also says that Russian entities have been a source of dual-use biotechnology equipment and

expertise, including for Iran.40

Another issue of congressional interest is the planned Russian sale of five S-300 air defense

systems to Iran. Russia has so far stalled on completing this transaction. It is expected to be

deployed near Iranian nuclear facilities. The May 2010 draft of the U.N. Security Council

sanctions resolution on Iran would not prohibit this transfer. Air defense systems are not

prohibited under international export control regimes, nor would the transfer automatically fall

under any current U.S. sanctions.

On May 21, 2010, the State Department announced it was removing sanctions on four sanctioned

entities in Russia.41 Since 1998, at least 19 different Russian entities have been placed under

proliferation-related sanctions on over 20 different occasions. However, with the removals on

May 21, there appear to be no current proliferation-related sanctions against Russian entities.42

Some observers have asserted that removal of sanctions was done in exchange for Russian

support for a draft U.N. Security Council resolution that strengthens sanctions against Iran. The

State Department spokesman has said that, regardless, there was no evidence that the companies

removed from the sanctions list were currently transferring arms or technology.43 In March 2010,

“Prospects for a U.S.-Russian Agreement for Peaceful Nuclear Cooperation in Congress: Robert Einhorn and Jon

Wolfsthal,” Remarks at the Carnegie Moscow Center, April 15, 2008, http://www.carnegie.ru/en/news/78128.htm.

Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction and

Advanced Conventional Munitions Covering 1 January to 31 December 2009. http://www.dni.gov/reports/

2009_721_Report.pdf.

Sanctions were lifted on Rosoboronexport, Dmitry Mendeleev University of Chemical Technology, the Moscow

Aviation Institute and the Tula Instrument Design Bureau. Federal Register, Vol. 75, No. 98, May 21, 2010.

This include sanctions under Executive Order 12938, the Iran, North Korea, Syria Nonproliferation Act, the Iran

Nonproliferation Act of 2000, missile sanctions laws, etc. Available at “Nonproliferation Sanctions,” State Department

website, http://www.state.gov/t/isn/c15231.htm There are some Russian entities still under State Department sanctions

for “Transfer of Lethal Military Equipment.”

Peter Baker and David Sanger, “Gains for Moscow in Iran deal: U.S. lifts sanctions, allows loophole to win support

for resolution,” New York Times, May 22, 2010.

Congressional Research Service

U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress

the Administration lifted sanctions on two other Russian entities, Glavkosmos and the Baltic State

Technical University, both sanctioned in 1998 for helping Iran’s missile and weapons programs.

Additionally, the Department of Commerce lists entities subject to license requirements for

proliferation-related end-use or end-user controls under Part 744 Supplement of the Export

Administration Regulations (EAR). As of February 19, 2010, there were eight Russian entities on

this list.44 Three of these entities’ license applications are reviewed on a case-by-case basis, while

five are under “presumption of denial.” According to Commerce Department officials, this list is

currently under review.

Some argue that maximum leverage has already been gained in coaxing Russian behavior on Iran

in exchange for the signing of a 123 agreement, and that there will be opportunities in the future

to exercise further leverage if necessary, because each transaction under a 123 agreement must be

approved for licensing. 45 Supporters may also see the 123 agreement as a way to encourage

Russia to continue pressing Iran on such issues as the Bushehr reactor safeguards. Some argue

that engaging Russia on the scientific level would improve transparency and could provide a

deterrent to Russian technical cooperation with Iran. Others were reluctant to approve the

agreement when questions remain unanswered about the Russian government’s control over

transfers to Iran’s nuclear and missile programs.

Author Contact Information

Mary Beth Nikitin

Analyst in Nonproliferation

/redacted/@crs.loc.gov, 7-....

http://www.access.gpo.gov/bis/ear/pdf/744spir.pdf.

Thomas Graham, “The Friend of My Enemy,” National Interest Online, April 1, 2008,

http://www.nationalinterest.org/Article.aspx?id=17266; Einhorn, Gottemoeller, McGoldrick, Poneman, Wolfsthal,

“The U.S.-Russian Civil Nuclear Agreement: A Framework for Cooperation,” CSIS, May 2008, http://www.csis.org/

component/option,com_csis_pubs/task,view/id,4499/type,1/.

Congressional Research Service

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