[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.


    

    
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