[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3010 Introduced in Senate (IS)]
<DOC>
114th CONGRESS
2d Session
S. 3010
To provide for restrictions related to nuclear cooperation with the
People's Republic of China, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 26, 2016
Mr. Markey (for himself and Mr. Rubio) introduced the following bill;
which was read twice and referred to the Committee on Foreign Relations
_______________________________________________________________________
A BILL
To provide for restrictions related to nuclear cooperation with the
People's Republic of China, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``U.S.-China Nuclear Cooperation and
Nonproliferation Act of 2016''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) A 2001 report from the Department of Defense found that
``China supplied Pakistan with nuclear material and expertise
and has provided critical assistance in the production of
Pakistan's nuclear facilities.'' China is also alleged to have
provided Pakistan with 50 kilograms of highly enriched uranium,
and designs for a nuclear weapon.
(2) An unclassified 2011 report to Congress from the
Director of National Intelligence found that Chinese entities
``continue to supply a variety of missile-related items to
multiple customers, including Iran and Pakistan.'' Previous
reports from the Director of National Intelligence have
confirmed that Chinese entities have provided support for the
missile program of North Korea.
(3) China has failed to bring to justice Li Fangwei, also
known as Karl Lee, who has been indicted in the United States
on charges of providing sensitive missile technology to Iran.
According to a report from the Congressional Research Service,
``concerns persist about Chinese willingness as well as ability
to detect and prevent illicit transfers'' of dual-use and
sensitive nuclear and missile items.
(4) At a May 12, 2015, hearing, members of the Committee on
Foreign Relations of the Senate raised concerns that China may
have diverted reactor cooling pumps produced by Curtiss-Wright
Corporation to its nuclear submarine program, bolstering the
stealth of its submarines, and violating the Previous Nuclear
Cooperation Agreement (as that term is defined in section
3(3)).
(5) China has announced plans to provide Pakistan with
additional nuclear reactors, beyond those it had already agreed
to construct prior to 2004, in violation of its 2004
commitments to the Nuclear Suppliers Group (NSG).
(6) Five members of the Chinese People's Liberation Army
have been indicted in the United States on charges of hacking
into the computer networks of Westinghouse and stealing United
States intellectual property, including the design of nuclear
power plants.
(7) China has announced plans to export nuclear power
plants based on technology acquired from Westinghouse, one of
China's primary commercial partners under its current and
previous nuclear cooperation agreements with the United States.
While China has committed not to export United States-origin
technology without a marketing license from Westinghouse, there
is no definition of ``United States-origin technology'' in the
Federal Register, complicating United States enforcement of
this provision.
(8) China General Nuclear Power Company, a state-owned
nuclear power provider, has been indicted in the United States
on charges of unlawfully producing special nuclear material
outside the United States without the authorization of the
Department of Energy.
(9) China's plans to reprocess United States-origin spent
fuel raise the risk that China could divert plutonium to
military purposes, enabling it to produce additional nuclear
weapons that threaten the United States and its allies.
(10) Secretary of Energy Ernest Moniz, in Beijing on March
17, 2016, told the Wall Street Journal that the United States
does not ``support large-scale reprocessing'' and China's plan
to proceed with a commercial-scale reprocessing facility
``certainly isn't a positive in terms of nonproliferation''.
(11) China's pursuit of commercial plutonium reprocessing
will increase the likelihood that Japan expands its commercial
reprocessing program and that South Korea will increase efforts
to initiate a similar program of its own. Growing stockpiles of
plutonium in East Asia increase the chances of military
diversion and theft, raising the risk of nuclear proliferation,
nuclear terrorism, and interstate nuclear conflict. It is in
the interest of the United States to prevent the stockpiling of
plutonium in East Asia.
SEC. 3. DEFINITIONS.
In this Act:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Foreign Relations and the
Select Committee on Intelligence of the Senate; and
(B) the Committee on Foreign Affairs and the
Permanent Select Committee on Intelligence of the House
of Representatives.
(2) China.--The term ``China'' means the People's Republic
of China.
(3) Chinese person.--The term ``Chinese person'' means--
(A) an individual who is a citizen or national of
the People's Republic of China; or
(B) an entity organized under the laws of the
People's Republic of China or otherwise subject to the
jurisdiction of the Government of the People's Republic
of China.
(4) Previous nuclear cooperation agreement.--The term
``Previous Nuclear Cooperation Agreement'' means the Agreement
for Cooperation Between the Government of the United States of
America and the Government of the People's Republic of China
Concerning Peaceful Uses of Nuclear Energy, concluded July 23,
1985.
(5) United states.--The term ``United States'' means the
several States, the District of Columbia, and any territory or
possession of the United States.
(6) United states person.--The term ``United States
person'' means any United States citizen, any alien admitted to
the United States for permanent residence, any entity organized
under the laws of the United States or any jurisdiction within
the United States, including a foreign branch of such an
entity.
(7) United states-china nuclear cooperation agreement.--The
term ``United States-China Nuclear Cooperation Agreement''
means the Agreement for Cooperation Between the United States
and the Government of the People's Republic of China that was
submitted to the appropriate congressional committees under
section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153)
on April 21, 2015, and which entered into force on October 29,
2015.
SEC. 4. NOTICE REGARDING TRANSFERS OF NUCLEAR TECHNOLOGY TO CHINA.
The Secretary of Energy shall, not later than 5 days after
receiving an application for the proposed transfer of nuclear
technology to China under section 57b. of the Atomic Energy Act of 1954
(42 U.S.C. 2077(b)), including an application for specific
authorization to be provided for in a subsequent arrangement under
section 131 of that Act (42 U.S.C. 2160), notify the appropriate
congressional committees of the receipt of such application. The notice
shall describe with particularity the items contained in the proposed
transfer of nuclear technology.
SEC. 5. ADDITIONAL REQUIREMENT FOR APPROVAL OF RETRANSFERS OF UNITED
STATES-ORIGIN TECHNOLOGY.
(a) In General.--Any request for authorization to transfer United
States-origin technology (as defined pursuant to subsection (b)) from
China, or with the significant participation of Chinese persons not
located in the United States, to a country other than the United States
or China, shall be subject to the authorization requirements in section
57b. of the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)). Furthermore,
such requests for authorization shall be denied unless the applicant
can demonstrate--
(1) significant ongoing participation by United States
persons in the transfer;
(2) in the case of nuclear reactors and reactor components,
significant United States content involved in, or attendant to,
the proposed transfer; and
(3) in the case of the transfer of technology developed
with the participation of the United States Government, timely
and adequate reimbursement of the United States Government for
any grants or loans provided by the United States Government to
entities involved in the development of the technology.
(b) Definition of United States-Origin Technology.--Not later than
90 days after the date of the enactment of this Act, the Secretary of
Energy shall issue a definition of items covered by the term ``United
States-origin technology'' in subsection (a), including items derived
from such technology. The term shall include items developed by United
States persons or persons subject to the jurisdiction of the United
States, and items developed with the participation of the United States
Government, including large, passive light water reactors.
SEC. 6. STATEMENT OF POLICY ON CHINA-PAKISTAN NUCLEAR COOPERATION.
It is the policy of the United States--
(1) to oppose the provision by China of assistance in the
construction of any nuclear reactor in Pakistan other than the
first 2 reactors constructed at Chasma, which were consistent
with the conditions concerning China's participation in the
Nuclear Suppliers Group; and
(2) to assist Pakistan with the acquisition and development
of sufficient electrical power to meet its domestic
requirements for electrical power through means other than
nuclear power.
SEC. 7. ADDITIONAL NOTIFICATION REQUIREMENTS.
(a) Determination Required.--Not later than 180 days after the date
of the enactment of this Act, and annually thereafter, the President,
in consultation with the Secretary of State, the Secretary of Energy,
the Secretary of Defense, and the Director of National Intelligence,
shall determine whether the Government of China, persons acting on
behalf of the Government of China, or Chinese persons have, since the
entry into force of the United States-China Nuclear Cooperation
Agreement--
(1) retransferred any United States nuclear items to a
third country without the permission of the United States
Government;
(2) diverted or attempted to divert United States nuclear
items to military use;
(3) stolen or attempted to steal United States nuclear
items;
(4) failed to undertake measures necessary to prevent
transfers of goods, services, and technology described in
section 2(a) of the Iran, North Korea, and Syria
Nonproliferation Act (Public Law 106-178; 50 U.S.C. 1701 note),
or to make substantial progress in preventing such transfers;
(5) failed to undertake measures to enforce the sanctions
provided for in United Nations Security Council Resolution
2270, adopted on March 2, 2016, and previous relevant
resolutions recalled in Resolution 2270;
(6) refused to adhere to the Nuclear Suppliers Group
guidelines regarding the export of any new civilian nuclear
reactors, regardless of any prior or future contract
obligations; or
(7) otherwise violated the terms and conditions of the
United States-China Nuclear Cooperation Agreement, or any
authorization issued by the United States Government concerning
transfers of United States nuclear items.
(b) Suspension of Cooperation.--If the President makes a
determination described in subsection (a), the President shall
immediately suspend all cooperation under the United States-China
Nuclear Cooperation Agreement, including any transfers of nuclear
technology or materials, until the President submits to the appropriate
congressional committees--
(1) a plan of corrective action to--
(A) address the activity described in subsection
(a);
(B) mitigate any damage to the national security of
the United States because of such activity; and
(C) prevent further such activity; and
(2) a certification to the appropriate congressional
committees that the plan described in paragraph (1) is being
implemented.
(c) Definition.--In this section, the term ``United States nuclear
items'' means any items that are transferred to China under--
(1) the United States-China Nuclear Cooperation Agreement;
(2) section 57b. of the Atomic Energy Act of 1954 (42
U.S.C. 2077(b)); or
(3) part 110 of title 10, Code of Federal Regulations.
SEC. 8. IMPLEMENTATION OF AGREED MINUTE.
The President may not bring into effect the procedures described in
the section of the Agreed Minute to the United States-China Nuclear
Cooperation Agreement that appear under the heading ``Technology and
Information Exchanges'' unless the President, at least 60 days of
continuous session of Congress before those procedures become
effective--
(1) provides to the appropriate congressional committees
the details concerning the implementation of those provisions;
and
(2) certifies to the appropriate congressional committees
that those procedures protect the national security of the
United States to an extent that is equal to or greater than
those procedures provided for under part 810 of title 10, Code
of Federal Regulations.
SEC. 9. REPROCESSING UNDER THE UNITED STATES-CHINA NUCLEAR COOPERATION
AGREEMENT.
(a) Sense of Congress.--It is the sense of Congress that the United
States should encourage countries in East Asia to forgo the
commencement of new spent fuel reprocessing activities, as part of a
mutual effort to prevent the increased or expanded stockpiling of
separated plutonium in the region.
(b) Implementation of Reprocessing Consent Rights Under
Agreement.--The President shall not agree to the reprocessing,
recycling, or other alteration in form or content of nuclear material,
as described in Article 6.2 of the United States-China Nuclear
Cooperation Agreement, at any individual facility to which the
International Atomic Energy Agency (IAEA) safeguards are not applied,
unless, for each proposed facility at which such activity will take
place, the President certifies to the appropriate congressional
committees that--
(1) the President has made a formal request to the IAEA to
apply safeguards to the facility;
(2) the IAEA has refused the request described in paragraph
(1); and
(3) the arrangements and procedures under which such
reprocessing, recycling, or other alteration in form or content
will occur--
(A) include a requirement that nuclear material
transferred pursuant to the United States-China Nuclear
Cooperation Agreement and nuclear material used in or
produced through the use of such material--
(i) not be commingled with any other
nuclear material;
(ii) be clearly marked as United States-
obligated nuclear material;
(iii) be stored in separate facilities from
any other nuclear material; and
(iv) be available for inspection
immediately and without prior notice upon
request by the IAEA or either party to the
agreement; and
(B) are sufficient to detect in a timely manner--
(i) the diversion for military purposes of
nuclear material transferred pursuant to the
United States-China Nuclear Cooperation
Agreement and nuclear material used in or
produced through the use of such material; and
(ii) the transfer to facilities or
locations not agreed to by the United States of
nuclear material transferred pursuant to the
United States-China Nuclear Cooperation
Agreement and nuclear material used in or
produced through the use of such material.
(c) Notification Required.--If the President issues a certification
described in subsection (b), the President shall include with that
certification a detailed description of--
(1) the facility at which the reprocessing, recycling, or
other alteration in form and content will take place;
(2) the safeguards applied to the facility;
(3) the measures that will be undertaken to secure and
prevent the theft or diversion to military purposes of any
separated plutonium that will result from the activities at the
facility;
(4) the amounts of materials to be processed at the
facility;
(5) the amount of processed fissile material that might be
stockpiled as a result of the activities at the facility, and
the estimated time that it may be stockpiled prior to its
civilian use in a nuclear reactor; and
(6) the risks to United States national security posed by
the potential diversion of nuclear material at the facility.
SEC. 10. REPORTS.
(a) Initial Report.--
(1) In general.--No later than 90 days after the date of
the enactment of this Act, the Secretary of State, with the
concurrence of the Director of National Intelligence, shall
submit to the appropriate congressional committees a report on
China's history of compliance with the peaceful use and non-
proliferation provisions of the Previous Nuclear Cooperation
Agreement.
(2) Elements.--The report required under paragraph (1)
shall include--
(A) a detailed examination of every suspected or
alleged violation of such previous agreement;
(B) the response by China to any inquiries by the
United States regarding any such suspected or alleged
violations of the previous agreement;
(C) an assessment of the likelihood of future
violations under the terms of the United States-China
Nuclear Cooperation Agreement; and
(D) an assessment of the potential advantages that
a large civil nuclear infrastructure or program may
provide the People's Republic of China as it seeks to
meet its future nuclear weapons requirements.
(b) Annual Intelligence Report.--
(1) In general.--Not later than April 15, 2017, and
annually thereafter, the Director of National Intelligence
shall submit to the appropriate congressional committees a
report on the status of the United States-China Nuclear
Cooperation Agreement and compliance by China with the
agreement.
(2) Elements.--The report required under paragraph (1)
shall include, at a minimum--
(A) a detailed examination of every suspected or
alleged violation of the Agreement by the People's
Republic of China that may have occurred during the
prior calendar year;
(B) the response by China to any inquiries by the
United States regarding any such suspected or alleged
violations;
(C) an accounting of the specific roles played in
the civil and military nuclear programs of the People's
Republic of China by all Chinese persons visiting
United States nuclear labs and facilities;
(D) an assessment of whether the People's Republic
of China or any entity acting on its behalf has
targeted and United States nuclear-related private-
sector or governmental entities, enterprises, or assets
for any form of cyber trespass, theft, or attack, or
has taken specific actions pursuant to such targeting
by any entity;
(E) an assessment of the risks of diversion of
special nuclear material transferred pursuant to this
Agreement, the likely consequences of such diversion,
and steps taken to avert any potential diversion;
(F) an assessment of the potential military utility
of diverted civil nuclear technology;
(G) an assessment of any civil and criminal law
enforcement actions taken by the People's Republic of
China's against any entities or individuals within its
government or its jurisdiction that have--
(i) violated non-proliferation or peaceful
use requirements of this or any other bilateral
or multilateral nuclear agreement to which
People's Republic of China is a party;
(ii) committed cyber trespass, theft, or
attack on any United States nuclear-related
private sector or governmental entities,
enterprises, or assets; or
(iii) conducted cyber trespass or cyber
exploitation against any private sector nuclear
entities, enterprises, or assets for commercial
gain; and
(H) a description of the extent to which the
Government of the People's Republic of China has
honored United States requests for enforcement of
United States legal action against any entities or
individuals described in subparagraph (G), including
requests for extradition by the United States.
(c) Form.--The reports required under subsections (a) and (b) may
be submitted in classified form, but shall also contain an unclassified
executive summary and may contain an unclassified annex.
(d) Annual Exports Report.--Not later than April 15, 2017, and
annually thereafter, the President shall submit to the appropriate
congressional committees a report that--
(1) identifies all export licenses issued in the previous
calendar year pursuant to the United States-China Nuclear
Cooperation Agreement, including at a minimum, the license
applicant, proposed end user, items licensed, value, and term
of the license; and
(2) assesses China's progress in strengthening,
implementing, and enforcing laws to ensure restricted dual-use
technology is not transferred to countries of proliferation
concern.
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