Export of Special Nuclear Material to India Message to the Congress Transmitting Executive Order 12055.

To the Congress of the United States:

I am transmitting herewith, pursuant to Section 126b (2) of the Atomic Energy Act of 1954, as amended, an Executive Order authorizing the export of 7,638 Kgs. of low-enriched uranium to India for use in the fueling of its Tarapur Atomic Power Station.

In our Agreement for Cooperation with India, the United States agreed to supply all of the fuel requirements for that Power Station, and India agreed to operate it exclusively on U.S.-supplied fuel. We contracted to supply the specific fuel here involved a number of years ago.

An application for a license to export this fuel was submitted to the Nuclear Regulatory Commission early last year. This application was carefully reviewed within the Executive Branch, which concluded that the proposed export would not be inimical to the common defense and security, that it would meet all the immediate statutory criteria under the then pending Nuclear Non-Proliferation Act, and that the license should be issued. Later that month, the Commission was officially notified of the Executive Branch findings and recommendations.

On April 20, the Nuclear Regulatory Commission found itself unable to agree upon the issuance of this license, being divided by a 2-2 vote. The Nuclear Non-Proliferation Act of 1978 wisely provided for just such a contingency. Previously, there was no clear way of dealing with a situation in which the Commission was unable to decide upon the issuance of an export license, and no way of ensuring that in cases where the licensing process would lead to a result that the President believed would be seriously prejudicial to the achievement of United States nonproliferation objectives, such prejudice could be avoided.

I have determined that this is such a case. The Government of India has given us its commitments to use our exports only at the Tarapur Atomic Power Station and not for any explosive or military purpose, and I have the highest confidence that it will honor these commitments. I am convinced that denial of this export would seriously undermine our efforts to persuade India to accept full-scope safeguards, and would seriously prejudice the achievement of other U.S. non-proliferation goals. I intend to pursue these matters further with the Government of India.

A period in which to seek agreement to full-scope safeguards was clearly provided for in the Act. The Act permits a continuation of exports during this period, including exports in cases where there are questions as to whether and when that objective may be achieved. Rather than prejudice the prospects for success in such efforts by refusing to fulfill an existing commitment that is important to India's power supply, we should be using this period to find, in the light of the new legislation's requirements, mutually acceptable ways of meeting both India's need for continued operation of the Tarapur Atomic Power Station and our need for full-scope safeguards and the attainment of other non-proliferation objectives.

In transmitting this Executive Order to you pursuant to Section 126b(2) of the Act, I wish to make clear that I am not departing from the reservations I expressed at the time I signed the Nuclear Non-Proliferation Act of 1978 concerning the constitutionality of provisions of that Act which purport to allow Congress to overturn my decisions by actions not subject to my veto power.

JIMMY CARTER

The White House,

April 27, 1978.