[Weekly Compilation of Presidential Documents Volume 44, Number 36 (Monday, September 15, 2008)]
[Pages 1195-1197]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
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 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

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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 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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