    [Public Papers of the Presidents of the United States: George W. Bush (2008, Book II)]
    [September 10, 2008]
    [Pages 1191-1193]
    [From the U.S. Government Publishing Office www.gpo.gov]

    Message to the Congress Transmitting the Proposed Agreement for
    Cooperation Between the Government of the United States of America and
    the Government of India Concerning Peaceful Uses of Nuclear Energy
    September 10, 2008

    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) (AEA), 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 123 a.(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

    [[Page 1192]]

    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 123 a.). 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 123 a. of the
    AEA except the requirement of section 123 a.(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 of
    section 123 a.(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

    [[Page 1193]]

    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.