    [House Document 110-146]
    [From the U.S. Government Publishing Office]

    110th Congress, 2d Session - - - - - - -- - - House Document 110-146

    A PROPOSED AGREEMENT REGARDING COOPERATION WITH THE GOVERNMENT OF INDIA
                   CONCERNING PEACEFUL USES OF NUCLEAR ENERGY

                                   __________

                                    MESSAGE

                                      from

                       THE PRESIDENT OF THE UNITED STATES

                                  transmitting

      A PROPOSED AGREEMENT FOR COOPERATION BETWEEN THE GOVERNMENT OF THE
     UNITED STATES AND THE GOVERNMENT OF INDIA CONCERNING PEACEFUL USES OF
                   NUCLEAR ENERGY, PURSUANT TO 42 U.S.C. 2153

     September 11, 2008.--Message and accompanying papers referred to the
             Committee on Foreign Affairs and ordered to be printed
    To the Congress of the United States:
        I am pleased to transmit to the Congress, pursuant to
    section 123 of the Atomic Energy Act of 1954, as amended (42
    U.S.C. 2153) (ABA), the text of a proposed Agreement for
    Cooperation Between the Government of the United States of
    America and the Government of India Concerning Peaceful Uses of
    Nuclear Energy. I am also pleased to transmit my written
    determination concerning the Agreement, including my approval
    of the Agreement and my authorization to execute the Agreement,
    and an unclassified Nuclear Proliferation Assessment Statement
    (NPAS) concerning the Agreement. (In accordance with section
    123 of the AEA, as amended by title XII of the Foreign Affairs
    Reform and Restructuring Act of 1998 (Public Law 105-277), a
    classified annex to the NPAS, prepared by the Secretary of
    State in consultation with the Director of National
    Intelligence, summarizing relevant classified information, will
    be submitted to the Congress separately.) The joint memorandum
    submitted to me by the Secretary of State and the Secretary of
    Energy and a letter from the Chairman of the Nuclear Regulatory
    Commission stating the views of the Commission are also
    enclosed.
        The proposed Agreement has been negotiated in accordance
    with the AEA and other applicable law. In my judgment, it meets
    all applicable statutory requirements except for section 13a.
    (2) of the AEA, from which I have exempted it as described
    below.
        The proposed Agreement provides a comprehensive framework
    for U.S. peaceful nuclear cooperation with India. It permits
    the transfer of information, non-nuclear material, nuclear
    material, equipment (including reactors) and components for
    nuclear research and nuclear power production. It does not
    permit transfers of any restricted data. Sensitive nuclear
    technology, heavy-water production technology and production
    facilities, sensitive nuclear facilities, and major critical
    components of such facilities may not be transferred under the
    Agreement unless the Agreement is amended. The Agreement
    permits the enrichment of uranium subject to it up to 20
    percent in the isotope 235. It permits reprocessing and other
    alterations in form or content of nuclear material subject to
    it; however, in the case of such activities in India, these
    rights will not come into effect until India establishes a new
    national reprocessing facility dedicated to reprocessing under
    IAEA safeguards and both parties agree on arrangements and
    procedures under which the reprocessing or other alteration in
    form or content will take place.
        In Article 5(6) the Agreement records certain political
    commitments concerning reliable supply of nuclear fuel given to
    India by the United States in March 2006. The text of the
    Agreement does not, however, transform these political
    commitments into legally binding commitments because the
    Agreement, like other U.S. agreements of its type, is intended
    as a framework agreement.
        The Agreement will remain in force for a period of 40 years
    and will continue in force thereafter for additional periods of
    10 years each unless either party gives notice to terminate it
    6 months before the end of a period. Moreover, either party has
    the right to terminate the Agreement prior to its expiration on
    1 year's written notice to the other party. A party seeking
    early termination of the Agreement has the right immediately to
    cease cooperation under the Agreement, prior to termination, if
    it determines that a mutually acceptable resolution of
    outstanding issues cannot be achieved through consultations. In
    any case the Agreement, as noted, is a framework or enabling
    agreement that does not compel any specific nuclear cooperative
    activity. In the event of termination of the Agreement, key
    nonproliferation conditions and controls would continue with
    respect to material and equipment subject to the Agreement.
        An extensive discussion of India's civil nuclear program,
    military nuclear program, and nuclear nonproliferation policies
    and practices is provided in the Nuclear Proliferation
    Assessment Statement (NPAS) and in a classified annex to the
    NPAS submitted to the Congress separately.
        The AEA establishes the requirements for agreements for
    nuclear cooperation, some of which apply only to non-nuclear-
    weapon states (see AEA, section 123a.). The AEA incorporates
    the definition of ``nuclear-weapon state'' from the Treaty on
    the Non-Proliferation of Nuclear Weapons (NPT), which defines
    it to mean a state that has manufactured and exploded a nuclear
    weapon or other nuclear explosive device prior to January 1,
    1967. Therefore India is a non-nuclear-weapon state for NPT and
    AEA purposes, even though it possesses nuclear weapons. The
    Agreement satisfies all requirements set forth in section 123a.
    of the AEA except the requirement of section 123a. (2) that, as
    a condition of continued U.S. nuclear supply under the
    Agreement, IAEA safeguards be maintained in India with respect
    to all nuclear materials in all peaceful nuclear activities
    within its territory, under its jurisdiction, or carried out
    under its control anywhere (i.e., ``full-scope'' or
    ``comprehensive'' safeguards).
        The Henry J. Hyde United States-India Peaceful Atomic
    Energy Cooperation Act of 2006 (the ``Hyde Act'') established
    authority to exempt the Agreement from the full-scope
    safeguards requirement section 123a.(2) of the AEA, as well as
    certain other provisions of the AEA relating to supply under
    such an agreement, provided that the President makes certain
    determinations and transmits them to the Congress together with
    a report detailing the basis for the determinations. I have
    made those determinations, and I am submitting them together
    with the required report as an enclosure to this transmittal.
        Approval of the Agreement, followed by its signature and
    entry into force, will permit the United States and India to
    move forward on the U.S.-India Civil Nuclear Cooperation
    Initiative, which Indian Prime Minister Manmohan Singh and I
    announced on July 18, 2005, and reaffirmed on March 2, 2006.
    Civil nuclear cooperation between the United States and India
    pursuant to the Agreement will offer major strategic and
    economic benefits to both countries, including enhanced energy
    security, an ability to rely more extensively on an
    environmentally friendly energy source, greater economic
    opportunities, and more robust nonproliferation efforts.
        The Agreement will reinforce the growing bilateral
    relationship between two vibrant democracies. The United States
    is committed to a strategic partnership with India, the
    Agreement promises to be a major milestone in achieving and
    sustaining that goal.
        In reviewing the proposed Agreement I have considered the
    views and recommendations of interested agencies. I have
    determined that its performance will promote, and will not
    constitute an unreasonable risk to, the common defense and
    security. Accordingly, I have approved it and I urge that the
    Congress also approve it this year.

                                                        George W. Bush.
        The White House, September 10, 2008.