The momentous Indo-US Nuclear Agreement, amongst other things, could bring about some changes in the legal regime governing nuclear proliferation in the United States, since an obligation has been undertaken by the US to "seek agreement from the Congress to adjust US laws and policies to achieve full civilian nuclear energy cooperation".

The primary legislation involved is the Atomic Energy Act of 1954 (AEA). It was under its aegis that civilian nuclear cooperation between the two countries occurred in the fifties and sixties. Following the nuclear test carried out by India in 1974, the US amended this Act by the Nuclear Non-Proliferation Act of 1978 (NNPA). A primary condition imposed by this amending legislation was that it barred nuclear exports to non- nuclear weapon countries that did not sign the so-called "full-scope safeguard agreement with the IAEA. This affected fuel supplies to the Tarapur Reactors, which though safeguarded, were barred from receiving fuel supplies due to India's entire nuclear programme not being under safeguards, subject to international inspections.

Under Section 123 of the Atomic Energy Act, an 'Agreement of Cooperation' must exist between the US and the importing country as a pre-condition for any significant nuclear cooperation. The Section further specifies that there are nine criteria such an agreement has to meet. The relevant ones for India are:

(1) IAEA safeguards have to be to be maintained by non-nuclear weapon states;

(2) safeguards continue in perpetuity, irrespective of termination or suspension of the agreement.

(3) no enriching or reprocessing without prior approval;

There is however an escape clause, in case an agreement falls short of these criteria. The President can grant exemption if imposition of this requirement would be "seriously prejudicial to U.S. non-proliferation objectives or otherwise jeopardize the common defence and security". However, an amendment brought in by the Export Administration Amendment Act of 1985 introduces a further requirement that this 'Presidential Exemption' would only be effective if both chambers of Congress adopt a 'joint resolution' stating that it favours such an agreement.

These criteria are replicated in Section 127 and 128 of the Atomic Energy Act (along with some additional requirements) that apply when the Nuclear Regulatory Commission (NRC) issues export licenses. In case the NRC refuses to grant a licence due to lack of compliance with any criterion, the President can still permit the export if he makes a positive determination on the Section 123 basis. In this case the President has to submit the case to Congress, for 60 days of continuous session, along with the authorization or the licence, plus a detailed assessment and other documentation. If Congress does not permit the authorization, no export can be made during that session of the Congress, but in case it permits the authorization, it would review one licence for export annually.

Section 129 provides for stopping nuclear exports to non-nuclear-weapon states that have indulged in nuclear proliferation activities after March 10, 1978. India falls in this category by conducting its nuclear tests series in 1998. Once again an escape clause is present, with the President being allowed to waive this termination by a positive determination, again on the Section 123 basis. This determination must be submitted to the Congress from where it would be referred to the Senate Foreign Relations Committee and the House International Relations Committee for a period of 60 days continuous session.

The NNPA itself, through Section 601, provides another hurdle by requiring the President to report annually to Congress on federal efforts to prevent proliferation.

Given these complications, including multiple approvals by the Congress, limited annual Congressional review and the embarrassing annual reports to Congress under Section 601, the accommodating the Indo-US Nuclear Agreement under the existing provisions of law is difficult.

The other option is to bring about amendments in the AEA and the NNPA to specifically relax the criteria for cooperation and/or make the process of approval from Congress of a 'Presidential Determination' less stringent. The fact that such amendments would result in a general relaxation of non-proliferation rules and regulations, and result in similar agreements being signed by the administration with countries like Pakistan and Israel, suggests that garnering Congressional approval would be problematical.

The most practical option would be to enact another law which, simplistically put, would state that the relevant provisions of the AEA and the NNPA would not apply to India, while providing for adequate safeguards at the same time. However, the US administration would also be interested in keeping some kind of annual congressional review in place, as it would be a valuable tool to watch over Indian cooperation in fulfilling its bargain (including the political fine print).