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Draft as modified on 9 October 2009

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Draft as modified on 9 October 2009

    ARRANGEMENTS AND PROCEDURES

    AGREED BETWEEN

    THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND

    THE GOVERNMENT OF INDIA

    PURSUANT TO ARTICLE 6(iii) OF THEIR

    AGREEMENT FOR COOPERATION

    CONCERNING PEACEFUL USES OF NUCLEAR ENERGY

The Government of the United States of America and the Government of India

    (hereinafter “the Parties”), pursuant to the Agreement for Cooperation Concerning

    Peaceful Uses of Nuclear Energy, with Agreed Minute, signed at Washington, on

    October 10, 2008 (“the Agreement for Cooperation”), which entered into force on

    December 6, 2008,

CONSIDERING the commitment to full civil nuclear cooperation between the two

    countries in the peaceful uses of nuclear energy as noted in Article 6 of the Agreement

    for Cooperation;

NOTING that cooperation under the Agreement for Cooperation is between two States

    possessing advanced nuclear technology, both Parties having the same benefits and

    advantages, both committed to preventing WMD proliferation;

DESIRING to implement the provisions of Article 6(iii) of the Agreement for

    Cooperation concerning arrangements and procedures for the reprocessing or other

    alteration in form or content of nuclear material transferred pursuant to the Agreement for

    Cooperation and nuclear material and by-product material used in or produced through

    the use of nuclear material, non-nuclear material, or equipment so transferred;

NOTING that the “Agreement between the Government of India and the International

    Atomic Energy Agency for the Application of Safeguards to Civilian Nuclear Facilities”

    (INFCIRC/754)(“India-Specific Safeguards Agreement”), which provides for safeguards on reprocessing plants, entered into force on May 11, 2009;

Have agreed on the following arrangements and procedures under which such

    reprocessing or other alteration in form or content may take place in India at two new

    national reprocessing facilities dedicated to reprocessing safeguarded nuclear material

    under International Atomic Energy Agency (“IAEA”) safeguards, including future

    expansion, modifications, renovations or additions thereto;

    ARTICLE 1 - NOTIFICATION AND EFFECTIVENESS OF RIGHT TO REPROCESS

1. The Government of India shall notify the Government of the United States of

    America in writing that it has established a facility (“the Facility”). The

    notification shall contain:

    a. the name of the owner or operator of the Facility;

    b. the name, type and location of the Facility and its planned capacity;

    c. confirmation that pursuant to Paragraph 14(a) of the India-Specific

    Safeguards Agreement, as referenced in Article 10(2) of the Agreement for

    Cooperation, India has notified the Facility to the IAEA for application of

    IAEA safeguards and that relevant safeguards arrangements have been

    agreed pursuant to the India-Specific Safeguards Agreement with the IAEA;

    d. such information as is available to the Government of India on the IAEA

    safeguards approach that is not classified as “Safeguards Confidential”; and

    e. a confirmation that physical protection measures as required by Article 8 of

    the Agreement for Cooperation will be applied at the Facility.

Both Parties confirm that the provisions of this Article or any subsequent Article

    of these Arrangements and Procedures shall not be used to secure any proprietary

    or commercially sensitive information about the Facility.

2. The Government of the United States of America shall provide an

    acknowledgement to the Government of India no later than thirty days after receipt

    of the notification. This acknowledgement shall be limited to a statement that the

    notification has been received.

3. It is understood that the phrase “the Facility” throughout these Arrangements and

    Procedures is intended to refer to two new national reprocessing facilities

    established by the Government of India to reprocess US-obligated nuclear material

    and any other safeguarded nuclear material and dedicated to the reprocessing and,

    as required, other alteration in form or content of safeguarded nuclear material

    under IAEA safeguards, as well as any additional new national facilities

    established and agreed to in accordance with paragraph 4 of this Article.

4. The Government of the United States of America and the Government of India

    understand the need for sufficient indigenous Indian capacity to reprocess or

    otherwise alter in form or content, under IAEA safeguards, U.S.-obligated nuclear

    material subject to the Agreement for Cooperation. Based on this understanding,

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the Parties agree to pursue the steps necessary, consistent with their national laws,

    to permit reprocessing or alteration in form or content of nuclear material subject

    to the Agreement for Cooperation at one or more new additional national facilities

    in India, (beyond the two facilities provided for in these Arrangements and

    Procedures) established by the Government of India and dedicated to the

    reprocessing and, as required, other alteration in form or content of safeguarded

    nuclear material under IAEA safeguards. These Arrangements and Procedures

    shall apply to such facilities upon successful completion of these steps, unless

    otherwise agreed by the Parties.

    ARTICLE 2 - IAEA SAFEGUARDS

    1. Consistent with the provisions of the Agreement for Cooperation, the Government

    of India shall offer the Facility for the application of IAEA safeguards as per the

    provisions of the India-Specific Safeguards Agreement. For the timely detection

    of withdrawal of safeguarded nuclear material from civilian use, safeguards

    measures shall include, as specified by the India-Specific Safeguards Agreement,

    nuclear material accountancy, design review, verification, progress in construction,

    appropriate containment and surveillance systems, process monitoring and other

    measures as may be agreed with the IAEA.

    2. The Government of India shall ensure that the following minimum requirements,

    consistent with paragraph 37 of the India-Specific Safeguards Agreement, for the

    implementation of IAEA safeguards at the Facility are fulfilled:

    a. Facility Design

    i. Early Provision of Design Information.

    The operator of the Facility shall co-operate with the IAEA by

    providing design information at the earliest possible time as

    provided in Paragraph 40 of the India-Specific Safeguards

    Agreement.

    ii. Effective Design Review.

    India and the operator of the Facility, as appropriate, shall

    cooperate with the IAEA in allowing “design information

    verification” (DIV) activities.

    iii. Incorporation of Design Features that Facilitate Safeguards.

    As may be required by the IAEA, facility design and operational

    characteristics shall enable effective and efficient implementation

    of safeguards while precluding design features that would

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    prevent the effective application of safeguards. Examples

    include, but are not limited to: installation of vessel calibration

    systems; effective methods of solution mixing and sampling; and

    installation of independent instruments as dictated by

    authentication concerns.

    b. Safeguards System Design and Installation

i. Cooperation with the IAEA.

    The Facility operator and the Safeguards Implementing Agency

    of the Government of India (hereinafter referred to as the Indian

    SIA) shall accommodate the installation and operation of IAEA

    instrumentation in the Facility, including data collection,

    authentication systems and tamper-indicating devices.

ii. System of Accounting and Control Capable of Providing Accurate,

    Timely Data.

    The operator of the Facility and the Indian SIA shall maintain a

    comprehensive and accurate nuclear materials accountancy

    system that conforms to IAEA standards as per the provisions of

    the India-Specific Safeguards Agreement, so that reliable and

    timely declarations can be made to the IAEA. A system of

    inventory records and reports shall be maintained for each

    material balance area. An effective system for measurement

    control shall be utilized.

iii. In-Process Material Measurement.

    The Facility operator and the Indian SIA shall cooperate with the

    IAEA to enable the IAEA to provide at the Facility measurement

    capabilities that the IAEA considers as necessary to cover all

    major in-process nuclear material inventories during plant

    operation.

iv. Process Monitoring Data.

    If desired by the IAEA, the Facility operator shall provide to the

    IAEA access to safeguards relevant operator data, such as

    authenticated process control data as per the provisions of the

    India-Specific Safeguards Agreement and India’s Additional

    Protocol when in force.

v. On-site Laboratory.

    The Facility design shall incorporate an on-site laboratory, if

    IAEA so requests, to perform destructive analysis of process

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    samples required by the IAEA safeguards approach at the

    Facility, and the IAEA shall be permitted to set up and operate

    that laboratory.

vi. Containment and Surveillance Systems.

    The Facility design shall take into account the use of containment

    and surveillance systems in accordance with the IAEA’s

    practices and procedures, as required for the effective

    implementation of safeguards, and the IAEA shall be permitted

    to maintain such systems at the Facility.

    c. Safeguards Implementation

i. Verification of Accountancy of Records.

    The IAEA shall be permitted to carry out regular verification of

    nuclear material accountancy records and reports.

ii. Remote Data Transmissions.

    The IAEA, if it considers it efficient for the purpose of

    safeguards implementation, may use remote transmission, in

    accordance with the provisions of India’s Additional Protocol

    when in force, of authenticated data to enable more frequent data

    analysis.

iii. Data Authentication.

    The Parties recognize the importance of reliable instrumentation

    for the purpose of timely and accurate safeguards related data,

    and of data authentication for safeguards implementation. The

    Facility operator shall cooperate with the IAEA to apply

    adequate authentication methods to data and samples collected

    for safeguards purposes.

iv. Access and Transparency.

    The Facility operator and the Indian SIA shall provide sufficient

    access to IAEA Inspectors to install and maintain safeguards

    equipment, and to inspect the complete process activity of the

    operator (including sample-taking) to the extent required for

    safeguards implementation and maintain a complete

    understanding of plant operation.

v. Annual Cleanout Inventory.

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    Nuclear material shall be removed from process lines annually in

    order to make it available, to the extent practicable, for accurate

    physical inventory verification.

    vi. Anomaly Resolution.

    The operator of the Facility and the Indian SIA shall cooperate

    with IAEA inspectors to resolve anomalies, if any, including

    material accounting anomalies, in a timely fashion.

    ARTICLE 3 - CONSULTATION

The Parties undertake to consult at the request of either Party regarding the

    implementation of these Arrangements and Procedures.

    ARTICLE 4 PHYSICAL PROTECTION AND STORAGE AT THE FACILITY

    1. In implementing physical protection at the Facility, and to the spent fuel and

    separated special fissionable material at the Facility, the Government of India shall

    apply measures in accordance with (i) levels of physical protection at least

    equivalent to the recommendations published in the IAEA document

    INFCIRC/225 Rev. 4 entitled “The Physical Protection of Nuclear Material and

    Nuclear Facilities,” and in any subsequent revisions of the document agreed to by

    the Parties, and (ii) the provisions of the 1980 Convention on the Physical

    Protection of Nuclear Material and any amendments to the Convention that enter

    into force for both Parties.

    2. The Parties agree to exchange information on the approach to implementation of

    the requirements of this Article. The Parties shall also hold consultations visits at

    the Facility with respect to U.S.-obligated nuclear material in accordance with

    paragraph 1 of the Agreed Minute.

    3. Any information provided by the Government of India pursuant to this Article that

    is classified shall be protected in accordance with Article 8 of these Arrangements

    and Procedures.

    ARTICLE 5 - ENVIRONMENTAL PROTECTION

The Government of India shall follow best practices, as established in its national

    regulations, for minimizing the impact on the environment which may arise from the

    operation of the Facility.

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    ARTICLE 6 - MANAGEMENT OF SAFEGUARDED SEPARATED PLUTONIUM

India is committed to the management of separated safeguarded plutonium in ways that

    are consistent with its national decisions on the civil nuclear fuel cycle. The management

    of separated safeguarded plutonium subject to these Arrangements and Procedures by the

    Government of India shall take into account the need to avoid contributing to the risks of

    nuclear proliferation; the need to protect the environment, workers and the public; the

    potential of the material for further energy generation; and the importance of balancing

    supply and demand, including demand for reasonable working stocks for civil nuclear

    operations.

    ARTICLE 7 - SUSPENSION OF ARRANGEMENTS AND PROCEDURES

    1. The Parties note the significance of the full and continued implementation of these

    Arrangements and Procedures concluded pursuant to Article 6(iii) of the

    Agreement for Cooperation for implementing full civil nuclear cooperation as

    envisioned in the Joint Statement of the Parties of July 18, 2005. The Parties

    recognize that these Arrangements and Procedures should facilitate and ensure the

    development of further cooperation in the field of peaceful uses of nuclear energy

    on a stable, reliable and predictable basis. The Parties have also agreed to take

    into account the effects of suspension of these Arrangements and Procedures on

    other aspects of cooperation under the Agreement for Cooperation.

    2. The Government of India may undertake a temporary pause of limited duration in

    operations at the Facility if in its view such an action is required on account of

    specific circumstances regarding the Facility which may have an impact on the

    safe and secure operation of the Facility, the continued application of IAEA

    safeguards or physical protection measures, or the safety of personnel working in

    it or of the population in surrounding areas. The Government of India has the

    right to resume operations at the Facility when it decides that the specific

    circumstances that led to the temporary pause in operations no longer exist.

    3. The Parties agree that the sole grounds for seeking suspension, under Article

    14(9) of the Agreement for Cooperation, are exceptional circumstances limited to:

    i) Either Party’s determination that continuance of reprocessing of U.S.

    obligated nuclear material at the Facility would result in a serious threat to

    that Party’s national security, consistent with the Agreed Minute to these

    Arrangements and Procedures, or serious threat to the physical protection

    of the Facility or of the nuclear material at the Facility, and

    ii) Either Party’s determination that suspension is an unavoidable measure.

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    4. Recognizing the critical importance of a decision to seek suspension, such a decision shall only be taken at the highest level of Government. As provided in Article 14(9) of the Agreement for Cooperation, the Party seeking suspension shall take into account the effects of such suspension on other aspects of cooperation under the Agreement for Cooperation. The Party seeking suspension shall also consider the effects of such suspension in light of the commitments and objectives, including full civil nuclear cooperation, contained in the U.S.-India Joint Statement of July 18, 2005.

    5. The two Parties recognize that any suspension of these Arrangements and Procedures would have profound implications for the Agreement for Cooperation and for their relations. As such the two Parties shall exercise due restraint and caution before seeking suspension of these Arrangements and Procedures and shall use the provisions for consultations provided in Article 13 of the Agreement for Cooperation and in this Article. Such consultations shall also give special consideration to the importance for India of uninterrupted operation of nuclear reactors that provide nuclear energy for peaceful purposes and potential loss to the Indian economy and impact on energy security caused by a suspension of these Arrangements and Procedures. Both Parties shall take into account any negative consequences of such suspension on cooperation under the

    Agreement for Cooperation, including on-going contracts and projects initiated under the Agreement of Cooperation.

    6. Subsequent to the above consultations, if either Party determines that exceptional circumstances do exist and that these Arrangements and Procedures should be suspended pursuant to Article 14(9) of the Agreement for Cooperation, that Party shall notify the other Party in writing providing reasons for the suspension. The Parties confirm that, as of the time of entry into force of these Arrangements and Procedures, there exists no objective evidence of any of the concerns specified in paragraph 3 of this Article.

    7. Any decision to invoke the provisions of Article 14(9) of the Agreement for Cooperation shall be applied to the relevant reprocessing facility related to the exceptional circumstances to the minimum extent and for the minimum period of time necessary to deal with the exceptional circumstances and for not longer than a three month period unless extended by the Party seeking suspension for specific reasons conveyed in writing to the other Party. Both Parties shall review at the highest levels of Government, within three months from the commencement of the suspension, measures taken by the Parties aimed at reaching mutually acceptable resolution of outstanding issues, and steps taken to promote the earliest possible revocation of suspension, taking into account the effects of continuation of suspension on other aspects of cooperation under the Agreement for Cooperation. In case the suspension extends beyond a period of six months, both Parties shall enter into consultations on compensation for the adverse impact on the Indian economy due to disruption in electricity generation and loss on account of disruption of contractual obligations. The suspending Party shall notify the other Party in writing of a decision to end the suspension.

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    8. In the event of suspension of these Arrangements and Procedures the rights and

    obligations of the Parties under Article 14 of the Agreement for Cooperation shall remain

    unaffected.

    ARTICLE 8 CONFIDENTIALITY

    1. If the Government of India, in carrying out its obligations under Articles 1(1)(e)

    and 4 of these Arrangements and Procedures, provides to the Government of the

    United States of America classified information concerning the physical protection

    of the Facility or nuclear material at the Facility, the Government of the United

    States of America shall protect that classified information against unauthorized

    disclosure in accordance with the terms set forth below and in accordance with the

    laws and regulations of the Government of the United States of America.

    2. For purposes of these Arrangements and Procedures, “classified information” shall

    mean information provided by the Government of India pursuant to Articles 1(1)(e)

    and 4: (i) concerning the physical protection of the Facility or nuclear material at

    the Facility, the unauthorized disclosure of which could jeopardize the physical

    protection of the Facility or the material; (ii) which requires protection against

    unauthorized disclosure in the security interest of the Government of India; and (iii)

    which bears a security classification assigned by the Government of India.

    Classified information provided by the Government of India to the Government of

    the United States of America under these Arrangements and Procedures shall be

    marked by the Government of India in English as RESTRICTED,

    CONFIDENTIAL or SECRET.

3. Equivalent classifications are as follows:

    INDIA UNITED STATES OF AMERICA

    SECRET SECRET

    CONFIDENTIAL CONFIDENTIAL

    RESTRICTED CONFIDENTIAL (modified handling authorized)

    4. To the extent consistent with its applicable national law and regulations, the

    Government of the United States of America shall seek to ensure that all classified

    information that is provided to the Government of the United States of America by

    the Government of India under these Arrangements and Procedures will not be

    publicly disclosed, and shall seek to accord appropriate protections to such

    classified information, with a view to providing the same level of protection as is

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    accorded to such classified information by the Government of India. The Parties

    shall consult regarding the appropriate protection of such classified information.

    ARTICLE 9 INTERPRETATION

1. These Arrangements and Procedures are not intended to and shall not be

    interpreted to affect the terms of the Agreement for Cooperation, and in the case of any

    conflict between these Arrangements and Procedures and the Agreement for Cooperation,

    the terms of the Agreement for Cooperation shall prevail.

2. Terms used in these Arrangements and Procedures shall have the same meaning as

    given in the Agreement for Cooperation unless otherwise specified.

    ARTICLE 10 - ENTRY INTO FORCE

These Arrangements and Procedures shall enter into force on the date on which the

    Parties exchange diplomatic notes informing each other that they have completed all

    applicable requirements for entry into force.

    IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective

    Governments, have signed these Arrangements and Procedures.

    Done at __________________this ________day of ____________ 20__, in duplicate.

    FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT

    UNITED STATES OF AMERICA: OF INDIA:

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