Aid cutoffs for enrichment and reprocessing transfers

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1. Two aid cutoffs in the arms law

Chapter 10 of the Arms Export Control Act contains two parallel cutoffs of American assistance tied to sensitive nuclear transfers (22 U.S.C. 2799aa and 22 U.S.C. 2799aa-1). Section 101, codified at 22 U.S.C. 2799aa, deals with enrichment (22 U.S.C. 2799aa). Section 102(a), codified at 22 U.S.C. 2799aa-1(a), deals with reprocessing and with illegal exports for nuclear explosive devices (22 U.S.C. 2799aa-1(a)). Both cut off the same range of assistance, and both can be lifted by a presidential certification that Congress may override.

2. What assistance is cut off

The enrichment provision bars the use of funds made available under the Foreign Assistance Act of 1961 or the Arms Export Control Act for several purposes (22 U.S.C. 2799aa(a)). They are economic assistance, including assistance under chapter 4 of part II of the Foreign Assistance Act, and military assistance. Grant military education and training is barred, as is assistance under chapter 6 of part II. So is extending military credits or making guarantees. The reprocessing provision bars exactly the same list (22 U.S.C. 2799aa-1(a)(1)). How sales credit and guarantees normally work is covered in FMS credit and who may receive it.

3. The enrichment trigger

The enrichment bar applies to any country the President determines delivers nuclear enrichment equipment, materials or technology to another country, or receives them from another country, on or after 4 August 1977 (22 U.S.C. 2799aa(a)). The bar does not apply if, before the delivery, two conditions were met. The supplying and receiving countries must have agreed to place all such equipment, materials or technology, on delivery, under multilateral auspices and management when available (22 U.S.C. 2799aa(a)(1)). The recipient must also have agreed with the International Atomic Energy Agency to place all of it, and all its nuclear fuel and facilities, under the Agency’s safeguards system (22 U.S.C. 2799aa(a)(2)).

4. The reprocessing and illegal export triggers

The second provision has two triggers. The first is delivering or receiving nuclear reprocessing equipment, materials or technology on or after 4 August 1977 (22 U.S.C. 2799aa-1(a)(1)(A)). There is an exception for reprocessing technology tied to the investigation of alternatives to pure plutonium reprocessing, under international evaluation programs in which the United States participates. Unlike the enrichment provision, this trigger has no safeguards exception.

The second trigger concerns illegal exports from the United States (22 U.S.C. 2799aa-1(a)(1)(B)). It applies to a non-nuclear-weapon state that, on or after 8 August 1985, illegally exports or tries to export certain items from the United States. The items are any material, equipment or technology that would contribute significantly to its ability to make a nuclear explosive device. The President must also determine that the item was to be used by that country to make such a device. An export or attempted export by an agent of the country, or by anyone acting for it or in its interests, counts as an export by that country.

A non-nuclear-weapon state means any country that is not a nuclear-weapon state as defined in Article IX(3) of the Treaty on the Non-Proliferation of Nuclear Weapons (22 U.S.C. 2799aa-1(c)). The term nuclear explosive device takes its meaning from a separate nonproliferation statute (22 U.S.C. 2799aa-2).

5. Lifting the enrichment bar

The President may furnish assistance the enrichment provision would otherwise bar by certifying two things in writing. The certification goes to the Speaker of the House, the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations (22 U.S.C. 2799aa(b)(1)). Ending the assistance must be found to have a serious adverse effect on vital American interests (22 U.S.C. 2799aa(b)(1)(A)). The President must also have received reliable assurances that the country will not acquire or develop nuclear weapons or help other nations do so (22 U.S.C. 2799aa(b)(1)(B)). The certification must give the reasons in each case.

6. Lifting the reprocessing bar

The reprocessing bar can be lifted on a different test, and only one fiscal year at a time (22 U.S.C. 2799aa-1(a)(2)). The President may furnish assistance in a fiscal year by certifying in writing, during that year, that ending it would be seriously prejudicial to American nonproliferation objectives or otherwise jeopardize the common defense and security. No assurances about weapons are required. The certification goes to the same three recipients and must come with a statement of the specific reasons.

7. Congress can override

Under both provisions, a certification takes effect on the day Congress receives it (22 U.S.C. 2799aa(b)(2)(A) and 22 U.S.C. 2799aa-1(a)(3)(A)). Congress has 30 calendar days to enact a joint resolution disapproving the assistance. If it does, the certification stops being effective when the resolution is enacted, and all deliveries under it are suspended immediately. In the Senate, such a resolution is considered under section 601(b) of the International Security Assistance and Arms Export Control Act of 1976 (22 U.S.C. 2799aa(b)(2)(B) and 22 U.S.C. 2799aa-1(a)(3)(B)). Sanctions for transfers or detonations of nuclear explosive devices are covered in sanctions for nuclear explosive device transfers.

8. How the two provisions differ

The two cutoffs share their list of barred assistance and their override procedure, but differ in three ways. Only the enrichment bar has an exception for transfers placed under multilateral management and agency safeguards before delivery (22 U.S.C. 2799aa(a)). Only the reprocessing provision reaches attempted illegal exports from the United States, and it treats exports by a country’s agents as exports by the country (22 U.S.C. 2799aa-1(a)(1)). The tests for lifting them also differ. Enrichment assistance continues on a finding of serious adverse effect on vital interests plus reliable assurances, given case by case (22 U.S.C. 2799aa(b)(1)). Reprocessing assistance continues on a finding about nonproliferation objectives or the common defense, made for one fiscal year at a time (22 U.S.C. 2799aa-1(a)(2)).

Key terms

Multilateral auspices	Placement of transferred enrichment items under shared international management.
Safeguards agreement	An agreement placing nuclear items, fuel and facilities under IAEA safeguards.
Non-nuclear-weapon state	A country that is not a nuclear-weapon state under the Non-Proliferation Treaty.
Presidential certification	The written finding that lets barred assistance continue.
Disapproval resolution	A joint resolution that ends a certification within 30 calendar days.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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