[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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