ML19208D368
| ML19208D368 | |
| Person / Time | |
|---|---|
| Issue date: | 02/06/1979 |
| From: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7909280316 | |
| Download: ML19208D368 (89) | |
Text
- o UNITED STATES
- 4!"*
NUCLEAR REGULATORY COMMISSION
~
n h
W ASHIN GTON, D.C. 20555 y
c August 24, 1979 OFFICE OF THE SECRETARY COMMISSION DETERMINATION REGARDING PUBLIC DISCLOSURE UNDER THE GOVERNMENT IN THE SUNSHINE ACT OF:
Discussion of Tarapur February 6,
1979 Pursuant to 10 CFR 9.108(c), the Commission has determined that the attached portions of the subject transcript should be released to the public at this time.
The remaining portions of the transcript are being withheld from public disclosure pursuant to 10 CFR 9.104, as noted below, until a further review, which the Commission anticipates will result in disclosure of further portions of the text, is completed:
Page/Line through P_ age /Line Exemption 2/18 2/25 10 CFR 9.10 4 ( a) (1) 3/1 3/1 10 CFR 9.104 (a) (1) 3/7 3/9 10 CFR 9.10 4 (a) (1) 3/12 3/13 10 CFR 9.10 4 ( a) (1) 6/2 6/7 10 CFR 9.104 (a) (1) 13/10 13/12 10 CFR 9.104 ( a) (1) 14/3 14/7 10 CFR 9.104 (a) (1) 14/12 14/25 10 CFR 9.104 (a) (1) 15/1 15/4 10 CFR 9.104 (a) (1) 15/6 15/11 10 CFR 9.10 4 ( a) (1) 15/18 15/21 10 CFR 9.10 4 ( a) (1) 16/4 16/20 10 CFR 9.10 4 ( a) (1) l'/2 17/5 10 CFR 9.10 4 ( a) (1) 17/9 17/11 10 CFR 9.104 (a) (1) 17/13 17/19 10 CFR 9.10 4 ( a ) (1) 19/1 19/8 10 CFR 9.104 (a) (1) 19/21 19/25 10 CFR 9.10 4 (a) (1) 20/1 20/25 10 CFR 9.10 4 ( a) (1) 21/1 21/3 10 CFR 9.10 4 ( a) (1) 27/3 27/24 10 CFR 9.104 (a) (1) 28/1 28/21 10 CFR 9.104 (a) (1) 29/7 29/10 10 CFR 9.104 (a) (1) 29/14 29/22 10 CFR 9.10 4 ( a) (1) 29/24 29/25 10 CFR 9.10 4 (a ) (1) 30/1 30/20 10 CFR 9.10 4 (a) (1)
} { g'7] y 8 3 !
1052 108
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Page/Line through Page/Line Exemption 33/8 33/9 10 CPR 9.10 4 ( a) (1) 33/21 33/23 10 CFR 9.104 (a) (1) 34/3 34/3 10 CFR 9.104 (a) (1) 34/23 34/25 10 CFR 9.104 (a) (1) 35/3 35/9 10 CFR 9.104 (a) (1) 35/13 35/15 10 CFR 9.104 (a) (1) 35/17 35/19 10 CFR 9.10 4 ( a) (1) 36/2 36/25 10 CFR 9.10 4 ( a ) (1) 37/1 37/21 10 CFR 9.10 4 ( a ) (1) 38/14 38/21 10 CFR 9.104 (a) (1) 39/7 38/11 10 CFR 9.10 4 ( a ) (1) 39/20 39/21 10 CFR 9.104 (a) (1) 40/4 40/10 10 CFR 9.10 4 ( a ) (1) 40/15 40/25 10 CFR 9.104 (a) (1) 41/1 41/20 10 CFR 9.10 4 ( a ) (1) 43/15 43/16 10 CFR S.104 (a) (1) 51/18 51/19 10 CFR 9.104 ( a) (1) 51/23 51/23 10 CFR 9.104 (a) (1) 59/6 59/15 10 CFR 9.104 ( a) (1) 67/8 67/13 10 CFR 9.10 4 ( a) (1) 70/15 70/25 10 CFR 9.10 4 ( a) (1) 71/1 71/25 10 CFR 9.104 (a) (1) 72/1 72/4 10 CFR 9.104 (a) (1) 72/22 72/25 10 CFR 9.104 ( a ) (1) 73/1 73/9 10 CFR 9.10 4 ( a) (1) 74/15 74/25 10 CFR 9.10 4 ( a ) (1) 75/1 75/12 10 CFR 9.10 4 ( a ) (1) 77/22 77/25 10 CFR 9.10 4 ( a ) (1) 78/l 78/25 10 CFR 9.10 4 ( a ) (1) 79/1 79/25 10 CFR 9.10 4 (a ) (1) 80/1 80/2 10 CFR 9.10 4 (a) (1) 83/6 83/25 10 CFR 9.10 4 ( a) (1) 84/3 84/3 10 CFR 9.104 (a) (1) ll l
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k Secr tary of t' te ommissTon 1052 109
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NUCLEAR REGULATO RY COMMISSION -
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IN THE MATTER OF:
CLOSED MEETING TARAPUR DISCUSSION
(
P{cca Washington, D.C.
Octe - Tuesday, February 6, 1979 P=ges 1 - 86 T*iececes:
(200) 047-37CC AC. : r.uER.LL 3270RTIES,INC.
Offici.1lRepor:er:
l052 110 m s - C==i=i3" ~
We:hir gen, C.C. 20CO1 NAUCNWICS COVE?.ACc O AILY
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UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION 2
i i
3l l
l CLOEED MEETING 4
1 5
TARAPUR DISCUSSION i
6 3
7 Room 1130 t
8 1717 H Street, N.W.
Washington, D. C.
9 i
10 I Tuesday, February 6, 1979 i
i 11 The Commission met in closed session at 1:45 p.m.
12 BEFORE:
I la DR. JOSEPH M. HENDRIE, Chairman 14 VICTOR GILINSKY, Commissioner 15 RICHARD T. KENNEDY, Commissioner 16 PETER A. B RADFORD, Commissioner 17 '
JOHN F. AHEARNE, Commissioner 18 l 19 l 20 i 21 22j i
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25 l 1052 111 i
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OPEN MIKE I
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(1:45 p.m.)
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2 i
CHAIPJ!AN HENDRIE:
Why don't we get started, 3
l One of the items which I have to report to you is 4
that the mailbox appears to be full of items from our good S
i friends, the Department of State.
{
6' f
Jim, why don't you -- Are you in a position to j
7 l,
8l er.umerate these?
Deliver some comment on others?
I IIR. SHEA:
Just about, only to enumerate, because 9
1 I haven't seen the contents, but I did plan to indicate that j
10 I i
Stat-had, just moments before the meeting, delivered three i
ij t
12 new pieces of paper, I understand --
COMMISSIONER GILINSKY:
?txmnts before this meeting?
13 I
4R. SHEA:
Yes, jus t -- but I haven't -- preliminarily, ja i
15 I haven't seen even the outer envelope, although I think 16 others may have.
i But they have furiously churned out three documents.
17 18 '
i 19 i
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21 i
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l 23 1052 II2 24 A&Fa?eral Recorters, Inc. i 25 '
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The o the r is, I understand the second one is an j
i 3 I answer to -- I believe it was Commissioner Ahearne's request I
for comments on the OPE paper on need for fuel which was sent over a little while back.
And that has arrived.
Sl i
And the third item is one that was brought up the 6,
I l
other dc.r when we talked about Tarapur on Friday, 7
i i
I 8
I 9
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pursued -- stayed on that Friday, and they have put that 10,
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together for us.
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I 12 13 i
and it's now been fixed up and transmitted over to us in a g
i more formal form.
I 15 i
And those three pieces of paper should be delivered 16 to you this afternoon.
COMMISSIONER GILINSKY:
Well, we got one of them 8
just this minute.
Could we read it?
j9 MR. SHEA:
One just arrived.
20 1 I
l COMMISSIONER GILINSKY:
I mean, is it relevant?
21 1 1
MR. SHEA:
Which one?
COMMISSIONER GILINSKY:
Oh, ^vou have the secret 23 I
MR. SHEA:
No, I have --
i g
1052 113 AceJecer31 Reporters, it'c. l (L ughter.)
25,
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4 3 jyb MR. SHEA:
As far as I could get was to arrange for
,)
I the delivery of important missives.
I guess the first one 2
here is the INR, now.
3 MR. PEDERS N:
I have copies of the other two that 3
just are off the Xerox.
The question is:
Do you want them 5
l n w, r do you want them in the quiet of your office immediately 6
after this meeting?
7 COMMISSIONER AHEARNE:
Putting aside the description 8
of the of fice --
9 i
10 1 (Laughter.)
l I
CRAIRMAN HENDRIE:
Well, his roof is falling in.
jj i
(L ughter.)
12 l
CHAIRMAN HENDRIE:
I don' t know what your excuse is.
13 I
COMMISSIONER AHEARNE:
Well, there's a crew that ja fixes pipes, and as soon as they get all those fixed they're l
15 going to come right in.
16 l I
1 CRAIRMAN HENDRIE:
You could drown in that place.
17 I
W 11, there are -- it looks as though there may be 18 19,
yet another paper to come from the -- from New Delhi.
I Let's turn back to the discussion that was in 20 i
progress at the last meeting.
We had more or less worked our 21 way through various comments on Criteria 1 and 2, and were j
22,
l preparing to move resolutely up the line.
23 i
COMMISSIONER AHEARNE:
We had also covered 3 and 6.
2.1 Ace Feceral Reorrers, Inc. l MR. SHEA:
Physical security.
We're on 4 and 5.
25 I
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l l
CHAIRMAN HENDRIE:
4 and 5.
Do you want to go ahead l
and make some comments about 4 and 5?
And we'll go around the l
3ll table, room, and comment?
l MR. SHEA:
Criterion 4, I might read that:
"No such Fv CenlnC1 G materials, facilities, oc dc.irac
- >f nuclear technology f
f j
i' j
proposed to be exported, and no S&M produced through the use f such material will be retransferred to the jurisdiction of 7
any other nation or group of nations unless the prior approval :
8 of the U.S.
is obtained for such retransfer.
9 l
1 I
the U.S.
may "In addition to other requirements ^
er approvesuchretransrerga I
nationp or group of nations jj j
designated to receive such retransfer agrees that it shall be 12 i
subject to the conditions required by this section. "
13 I
Cev M The basic assurance on Criterion 4 from the Article l
14 A
- vrI, 2, of the U.S.-India Agreement for Cooperation, which bs3 15.
provides as follows:
"That no such material, equipment, or 16 device will be transferred to unauthorized persons or beyond 17, I
i l
the Jurisdiction or the Government of India, except as may be agreed to by the Government of the U.
S. of America, and the j9
]
Government of India."
And then, only if in the opinion of the
,0 t 2
I U.S.
Commission, such transfer falls within the scope of an 21 l i
l agreement for coooeration between the Government of the U.S.
of I
America and the other nation or group of nations or interna-23 i
d tional organization.
24,
Ac+Federst Reportars, loc.,
t,at that assurance provides a clear It seems to me n
25 j
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1052 115 i
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U.S.
approval right for transfer of material beyond India.
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5 l
6 7
I think those are the --
8 COMMISSIONER AHEARNE:
Jim, could you reread that i
phrase for a minute?
The -- in the State Department's l
g, l
analysis, they don' t actually quote.
They say that VII-A --
j) t f
Article VII provides that no material, et cetera, will be I
transferred beyond the jurisdiction of the Government of l
13 I
P India.
14 l l
You had a slightly different wording there.
t MR. SHEA:
The actual U.S. Agreement says that:
g "No such ma terial, e quipment, or device will be transferred to t
unauthorized persons or beyond the jurisdiction of" --
l COMMISSIONER AHEARNE :
What is the definition of 19 '1 i
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" unauthorized person"?
1 i
MS. BECKER:
A person without a license.
l 21 l l
l MR. SHEA:
Is that clear --
t MS. BECKER:
I think it would be somebody who was 23l 1
l i
nt licenced to receive the material in India.
24 Ace FMer# Roonen. Inc. !
CHAIR:iAN HENDRIE:
Well, what about in t,e --
n 23 ;
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COMMISSIONER GILINSKY:
That's a license to the i
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Indians?
2 CHAIRMAN HENDRIE:
There's an "or" phrase.
l 3l l
COMMISSIONER GILINSKY:
Licensed by whom?
I MS. BECKER:
By the Indian Government.
5 Well, "or otherwise permitted by the Indian Govern-ment."
i COMMISSIONER GILINSKY:
That's not much of a bar.
8 I
MS. BECKER:
Well, no, it isn't a bar.
The bar is I
j the phrase "or beyond the jurisdiction of the Government of g!
I jj l India."
j i
COMMISSIONER AHEARNE:
This is probably a -- it's i
I probably incorrect, and it's undoubtedly a nitpick -- but you g
have a phrase there which is "either/or."
N w if India were to say X is an authorized person, 15 coesn't that say that India could then go ahead and transfer g
it without our approval, because they have now defined someone g
to be an " authorized person"?
It has nothing to do with I
whether it's within or without the jurisdiction cf India.
39
}
CCMMISSIONER GILINSKY:
Doesn't that imply something 11 21 h in the U.S.-India Agreement of who 's authorized?
MS. BECKER:
I don't think that's the usual 22,
i I
construction.
It's the kind or provision which is ralrly g
common.
We always do get a letter from the government of 24,
Ace Federal Recor:ers, Inc.
25 l whatever government it happens to be, the country, saying that I
1052 117
8
'7 jwo ij X power company is authorized to receive the material.
l COMMISSIONER GILINSKY:
But isn' t this some sort of 2
l i
3 a constraint on the Indians?
Othe rwise, I wouldn't understand 4
it.
And it seems to give them total freedom to give it to i
SI whoever they think ought to have it.
l l
6 MR. bICKWIT:
I'm not --
7 COMMISSIONER GILINSKY:
Why is it in there in the i
8 first place, I guess.
9 MR. BICKWIT:
The "o r " is what saves you.
I I
10 IS. BECKER:
Yes.
l 11 COMMISSIONER GILINSKY:
No, I'm asking about that 12 first part of it.
Why is the first part of it in there?
13 MR. SHEA:
I'm not certain on this, but I believe i
14 that the Indians have to tell us that they have an authorized 15 person, and identify that person in a formal letter to us, i
16 such as the one that they have sent t,--
17 l
CO:lMISSIONER GILINSKY:
Well, that's what I was i
I 18 asking.
In other words, does that imply some agreement on i
19 our part that, you know, the X power company is indeed I
20 l authorized to have this material?
i i
l 21 l MR. SHEA:
I believe -- I believe so; that we would i
receive that letter, as we did in this case.
They certified l
22 I
23.
it was the Department of Atomic Energy at Hyderabad.
And if I
1 i'
24,
we had a problem with that, we would be expected, I think, to An Feer 8 Recorters. Inc.
25 l speak up at that point.
1052 118
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COMMISSIONER AHEARNE:
Is there somewhere within l
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i 2l that agreement the definition of how this operation is suppcsed!
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to occur?
i 4;
MS. BECKER:
I don't think so.
l 5l COMMISSIONER AHEARNE:
Lut you say that this is a 1
6 fairly common term used?
l l
7l MS. BECKER:
Oh, yes.
8 COMMISSIONER AHEARNE:
In other agreements?
9' MS. BECKER:
Oh, yes.
I i
10 COMMISSIONER AHEARNE:
What does it
- Does it have i
i 11 g a definition anywhere, then, in some other framework?
i 12 MS. BECKER:
Not that I'm aware of.
t 13 i
COMMISSIONER GILINSKY:
Does it have any operational!
l i
14 l significance?
l i
l 15 l COMMISSIONER AHEARNE:
There's no definition.
I i
16 mean, it almost sounds like an " authorized person" is a person i
1 17 li to whom the Government of India transfers the material.
But
.I 18 if they' re going to transfer the material -- they're prevented i
19 )
from transferring it to an unauthorized person.
You know, I l
l 20 i guess I'm back with Vic, because I don't understand what i
I 21 significance it had.
I il A
22 MR. SHEA:
Well, I would rea it that if they have l
23 not certified to us that a certain ultimate consignee or 24 ;
intermediate censignee is not an authorized person, tha t then l
AGT Eesteral (7 ?OOf f*f t, Inc.,
25 {
there is a problem.
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1052 119 i
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COMMISSIONER AHEARNE:
Is it -- Are vou saying, l
8 Jim, that what it really says is India shouldn't transfer it 2
to someone without letting us know that they're transferring 3
it?
I MR. SHEA:
That's basically, I guess, the way I i
5 I
would read it.
I would defer to the lawyers, but that's the 6
way I have interpreted it.
COMMISSIONER KENNEDY:
What do the lawyers say?
8 O.
f1R. STfIBER:
I think we are sort of in Appendix (9
9 t
A to the bilateral.
It talks about the records and reports i
10 i l
that have been presented to, you know, to the United States 3) by India, and these reports are to include such details as g
may be relevant to the achievement of the objective of l
g t
Article VI, e t cetera.
g It seems to me that what is stated ia these 31c g ll materials is who wil,1 be the recipient of the pmMfery, and I don '.t see that they use the term " authorized per: sons. "
17 j, t
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I think that the contract would provide some ind3-18 i i
j9 l cation, you know, of who the materials were to be sent to, l
and that's b i
11y what's alled f r there.
20 !
I IIR. BICKWIT:
But there.is no relevance with g
i respect to Criterion 4.
That language is not relevant to the g
23 h question of whether or not Criterion 4 is met.
i cot 1MISSIONER AHEARNE:
No, I was just trying to g.
anemnas nn.cnns. Inc. {l understand what was meant by this.
25,
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1 MR. SHEA:
The Indian letter is rererring to the 2
" authorized person," attached to the staf f paper, now --
78-596, the one from November 20 th.
I have those here if 3
i 4
you would like them.
5; COMMISSIONER AHEARNE:
I just found it interesting, i
61 also, chat the State Department didn ' t quote the article, but i
l 7e the way they wrote the article, they didn't mention that l
I r
l particular phrase.
I 8
9 MR. SHEA:
I presume they were focusing on the I
i i
10 i Criterion 4 aspects.
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i 11 COMMISSIONER AHEARNE:
Beyond the jurisdiction.
j i
12 MR. SHEA:
Beyond the jurisdiction.
13 COMMISSIONER AHEARNE:
And as far as you're I
14 concerned, then, there's no doubt that the current agreement, i
15 l as long as it stays in effect, meets that criterion?
i 16 MR. SHEA:
It meets that criterion; that's right.
1 32.a u a I
17 l MS. BECKER:
Furthermore, Section 1 at$ requires "c
5 IS I such a provision.
It's stated in almost the same words as 8
19 [ Criterion 4.
20 CHAIRMAN HENDRIE:
123 of the A..
i 21 l MS. BECKER:
Yes.
i l
22 ;
CHAIRMAN HENDRIE:
Are there comments on Criterion 4?
I 23 'l COMMISSIONER AHEARNE:
uoes any -- Jerry, did you I
24,
have any concern that it --
Ace. Federal Recorrers, Inc. l 23 CHAIRMAN HENDRIE:
Jerry, why don't you come up, and s
J l05?
1?I
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either pull a chair up, or use Sam's.
l I
i Did you have any concern about it being met, if I
the agreement stays in ef fect?
3' l
MR. OPLINGER:
Well, so long as India considers I
itself bound by the provision in the agreement, I think the 5
^t 61/
i criterifisclearlymet.
COMMISSIONER AHEARNE:
Is there any indication such as we have received on some of the other items, the statements 8
of the Indian official, that might give the impression that 9
i they were thinking of doing away with that provision?
l 10 !
l MR. OPLINGER:
Well, Prime Minister Desai told
))
I the Indian Parliament that if the United States stops supplying fuel, I think his words were, "we are ne longer bound."
' COMMISSIONER AHEARNE:
That was a blanket -- just 1
i 5
on this particular --
i MR. OPLIMGES:
Not with individual reference to i
this particular criter' 7,
no.
17 1 i
COMMISSIONER AHEARNE:
Have they given an indica-tion that they would be interested in transferring material j9 I
l out of the country?
20 1 1
MR. OPLINGER:
Not to my knowledge.
COMMISSIONER KENNEDY:
Prime Minister Desai's 22 I i
l statement, if that is a fair rendition, is that considered a 23 l i
gl reasonable interpretation of the agreement?
b A:s Federal Reporters' ine, l MR. STAIBER:
I think it is an -- a reasonable i
O 25,
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interpretation.
It is not necessarily the only --
l 2
COMMISSIONER KENNEDY:
Well, I said "a 2easonable." j 3l It is a reasonable interpretation?
I I
4 MR. STOIBER:
Well, I think lawyers can argue 5
about --
i i
I 6
COMMISSIONER AHEARNE:
Anything.
l 7'
(Laughter.)
8 COMMISSIONER KENNEDY:
Including most presumptive 9
assignments.
9 I
HR. STOIBER:
10 l
I 11 l i
12 13 COMMISSIONER KENNEDY:
That is a reasonable posi-1 14 tion to be taken.
MR. STOIBER:
That is one reasonable position under 15 ;
i i
16 international law.
17 COMMISSIONER GILINSKY:
It seems to me we want to i
18 l be careful -- or we will want to be careful in reviewing this l
19l transcript to be sure that speculations about avoiding any l
~
20 !
positions whic' may then come into play in --
21 l COMMISSIONER KENNEDY:
Well, there must be some 1
22 reason why we closed the meeting.
This may be one of them --
I I
23 one o f the rarer ones, I might add.
i 24 i COMMISSIONER GILINSKY:
Well, right.
We can be
.ke Fmerai itecortars, Inc. !
25 certain any future e:cchangas with the Indians are in fact i
1
l'3 j w b 14 reviewed very carefully, when we review this traascript, and I
are withheld.
CHAIRMAN. :HENDRIE :
3l 4
5 6
j i
7 CO:b?ISSIONER GILINSKY:
nell, that's right.
I i
8 mean --
9 i
l i
CHAIRMAN HENDRIE:
-- meant to represent any view 10 ;
j of the Commission, and indeed that --
'l 11 !
COMMISSIONER GILINSKY:
12.
13 i
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16 i I
l 17 1
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19 i
20 !
I COMMISSIONER KENNEDY:
21 22 23 !
24 Ace Feceral Reporters, Irc.,
25 l 1052 124 i
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i 2
3l 4l-5 COMMISSIONER GILINSKY:
Well, but it isn't as if -- !
l 6
COMMISSIONER KENNEDY:
J 7
8 9
i 10 i l
11 12 COMMISSIONER GILINSKY:
Sure.
13 COMMISSIONER KENNEDY:
You know, we have to live i
1 1
14 with the practical realities of life --
l There are two sides to this. l 15 COMMISSIONER GILINSKY:
i 16 COMMISSIONER KENNEDY:
Yes.
I 17 COMMISSIONER GILINSKY:
Right.
i 18 19 20 COMMISSIONER KENNEDY:
1 21 i
22 COMMISSIONER GILINSKY:
No, but what I'm saying is r
23 th a t --
24,
COMMISSIONER KENNEDY:
Contracts are never unilateral Ac e FMetal Remrters, inc. '
25 in scope, are they?
l 1052 125 I
1:5 jwb 16 I
e.
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MR. BICKWIT:
Yes, they are.
l
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2 COMMISSIONER KENNEDY:
" Unilateral" in all --
I 3l unilateral contracts?
l 4
MR. BICKWIT:
\\
5!
I i
l i
t i
6; (Laughter.)
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COMMISSIONER AHEARNE:
7 I,
8 9
i 10 !
' l.
11 COMMISSIONER GILINSKY:
i 1
12 i
13 l
l 14 l' i
15 COMMISSIONER AHEARNE:
16 COMMISSIONER GILINSKY:
17 I
18 l
i 19 IIR. STOIBER:
20 1 r
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1 21 COMMISSIONER GILINSKY:
Well, I think I have heard i
22 '
it here, I assume.
I don' t mean today, or in these proceedings',
i but --
l 23 l
74 COMMISSIGNER KENNEDY:
I think it woul,d be well to Ace Federal.Recorters. Inc. !
25 restate them, as long as we're making this enormously complete I
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1052 126 1
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record.
i
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COMMISSIONER KENNEDY:
Well, a wholly unreasonable 7
view, I would think.
CHAIRMAN HENDRIE:
Yes, Jerry?
g 9
MR. OPLINGER:
l.;
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12
' mean, either you have --
COMMISSIONER GTLINSKY:
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17 MS. BECKER:
I 18 f
19 1 i
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20 i COMMISSIONER AHEARNE:
How does that work?
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Wel, g.ic, m g. u e.t.e.. -. a A-ha '
da. otK '.m3 Wa ~# "d "*
j 22 a time when. there,was no private ownership of special nuclear
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Then af ter the Priva.te Ownership Ac.t was passed --
l 24 CO,'-iMISSIONER GIIrINSKY :
That,was just a year later, ',
Ace-Feceral Reporters, Inc. !
25 wasn't it?
l 1052 127 l
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MS. BECKER:
v-but --
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'2 l COMMISSIONER GILINSKY:
The contract dates from '66 --
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MS. BECKER:
'63, but the --
l 3li 4
COMMISSIONER GILINSKY:
The agreement.
I 5
MS. BECKER:
-- the sales contract was
'66.
i 6
COMMISSIONER GILINSKY:
Right.
I 7
MS..
DECKER:
'G3, and the private ownership law was (A
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l 8
9 COMMISSIONER AHEARNE:
I have missed what the 10 I significance of that was.
i 11 MS. BECKER:
Well, before that time, the material i
l 12 was being provided on a government-to-government basis.
13 Then, when private persons were able to own and I
ja export special nuclear material, the provisions of the sales j
l 15 contract were added to reflect that.
i 16 COMMISSIONER BRADFORD:
So_that what that did was 17 to permit a private person to act as the intermediary.
18 MS. BECKER:
Yes.
~
l 19 l COMMISSIONER BRADFORD:
That would not have been l
20 l permitted under the agreement, plus the law by itself?
I 21 l MS. SECKER:
Well, no private person could export I
22 l special nuclear material ---
t COMMISSIONER BRT.DFORD :
Yeah, but once you had the 23 l
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'63, the law in '64 --
ace-reerai sarerteri. ine. '
25 MS. SECKER:
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9 Let's suppose we take the example of sort of a 10 i Meyer(?) law.
Suppose Oak Ridge County wants to impose a tax l
11 un this material while it's sitting around waiting to be l
12 shipped out --
l 13 COMMISSIONER AHEARNE:
.This is not a hypothetical l
14 :
case here, and you realize th at.
l 1
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16 I CHAIRMAN HENDRIE:
That may be another reason to I
7 withhold the, tapes.
1 f
18 COMMISSICMER AHEARNE:
This is an issue of conten-t 19 tion in both the courts and the Congress right now.
l i
20 CHAIRMAN HENDRIE:
Why don' t you change the locale?
21 !
COMMISSIONER GILINSKY:
Let's say "Portsmouth."
22 l
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CHAIRMAN HENDRIE:
Other comments on Criterion 4?
l 3
COM:1ISSIONER AHEARNE:
Is the waiver provi= ion
~
6!
relevant?
7 CHAIRMAN HENDRIE:
Le t's see.
Spell that out a 8
little for me.
9 (Laughter.)
10 !
COMMISSIONER AHEARNE:
The President's ability to I
11 waive the criterion.
I i
8 l
12 COMMISSIONER GILINSKY:
Now how was that?
13 MR. BICKWIT:
Oh, could waive the transfer?
~
14 1
CHAIRMAN HENDRIE:
Yes.
I 15 MR. BICKWIT:
Hell, the criterion says, t
16 ;
" prior approval."
I assume this correlates with that.
l 2
17 !
In other words, it doesn't say you can't retransfer.
It says i
18 l you can't retransfer without prior approval.
This is the other.
l 19 !
side of that coin.
i 20 !
COMMISSIONER AHEARNE:
Isn't there a orovision I
21 l somewhere that the President can waive -- exempt some of these i
l criteria?
l 22 l
23 l COMMISSIONER GILINSKY:
I don't think so, unless l
1 i
i 24 it's turned over to him.
Ace Federal Reoorters. Inc. g 25 !
CHAIRMAN HENDRIE:
Once he's --
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21.jwb 22 i'
j COMMISSIONER GILINSKY:
He's not subject to the i
~2l criteria at all.
i I
CHAIRMAN HENDRIE:
Yes, once he's --
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COMMISSIONER KENNEDY:
If the criteria don'c 5
arise, you don't get --
i t
6 COMMISSIONER GILINSKY:
That's right.
7 COMMISSIONER KENNEDY:
His judgment of the -- His g
judgment is of a different character and order.
9 IIR. BICKWIT:
Full-scope safeguards can be --
i 10 '
COMMISSIONER KENNEDY:
It's not a question of l
11 waiving anything.
It's a question of making a different kind l
l 12 of decision altogether.
l 13 COMMISSIONER GILINSKY:
Yes, he has a --
I 14 COMMISSIONER AHEARNE:
Right, but he does have the f
15 ability to waive that.
l 16 COMMISSIONER KENNEDY:
No, he does not.
i I
17, COMMISSIONER GILINSKY:
No, he doesn't.
COMMISSIONER hENNEDY:
He doesn't even address them.
18 i
i 19 :
IIR. BICKWIT:
Yes, that's correct.
I 20 i COMMI,SSIONER KENNEDY:
So he doesn.'t " waive" any-21 thing.
i 22 COMMISSIONER BRADFORD:
He could in fact style his 7
,23l decision as a waiver, but he doesn't have to.
Iie could say:
24 ;
I agree that the critoria aren't met, and I've decided to waive Aw.Feeral Rewrters, inc. j 25 j application of the ones that are causing the problems.
j 1052 132
22 jwo 23 i
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1 If he chose that phraseology, there would be nothingl
'2 I wrong with it, but he's not required to put it that way.
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3 MR. BICKWIT:
But he would have to make a finding
/7 4 as to why he was wai ing the criteria, to say --
1 5
COMMISSIONER BRADFORD:
Well,.;e would have to make !
i 6
the finding he had to make anyway.
l 7
MR. BICKWIT:
Just to be clear, he couldn't say 8
"I choose to waive this criteria, period."
9' COMMISSIONER AHEARNE:
vh, no, no.
He would have toi i
10 '
give an explanation, particularly if they were ever expected l
11 l in Congress --
l 12 '
CHAIRMAN HENDRIE:
Was that the -- I think you 13 were thinking about -- it wasn't the full-scope safeguards,
l 14 che postponement of the effective date for a year at a time?
i 15 COMMISSIONER AREARNE:
Oh, no, no.
l I
16 MR. BICKWIT:
There is one other aspect of 17 Criterion 4 that might be worth mentioning.
The part -- the 18 aspects we have covered so far relate to the material directly 1
19 1 provided to India.
n' 20,
There is also the S/M produced at TAPS, which is i
21 covered by another orovision of the U.S.-India Agreement for
[
h 22' Cooperation.
I might go over that, if that's useful.
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23 The way it's put is:
'Jith respect to any S$M 24,
producec at Tarapur station which is in excess of the need of An Fens Remnus, inc. ;
25 l the Indian Government for such material in its program for I
i
- I 1052 133
23 jwb 24 ll l
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the peaceful use of atomic energy, the U.S. Government shall i
2[
have the first option to purchase such SNM at the fuel-value i
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3 i price of the U.S.
Commission which may be in effect comesti-l 4'
cally at such time as it may exercise its option.
If such 5
option is not exercised, the Government of India may, with i
I 6
the approval of tae U.S.
Government, transfer such excess SNM 7
to any other nation or group of nations or international 1
8 !
organization.
9 That gives the U.S.
the control on the material I
that is in excess of the Indian nuclear needs -- program 10 !
i 11 needs, or control over the transfer abroad to another l
So that's the produced SNM -- plutonium, presumably --l 12 j country.
l that would be produced at TAPS as distinct from the fuel 13 l
14 directly provided by spent fuel.
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So those two aspects lead up to the -- are the i
16 Lasis for determining that the criterion is met.
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17lil CHAIR'4AN HENDRIE:
Other comments on 4' i
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Can I sneak up on 5?
Going, going -- comments on I
19 !
4?
20 '
(No response.)
21,
CHAIRMAN HENDRIE:
Sold.
Bang.
I i
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Criterion 5.
I.
MR. SHEA:
Okay, Criterion d reads as follows:
i 23 ll 24 i "Go such materials proposed to be exoorted, and no AwFow a R m on m,lnc.
25 !
SNM produced through the use of such material, will be l
h 1052 134 I
34 jwb 25 i
reprocessed, and no irradiated duel elements containing such j
i material removed from a reactor shall be altered in rorm or 2
content unless the prior approval of the U.S.
is obtained for 3l l
3l such reprocessing or alteration."
'rhe basic --
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COMMISSIONER GILINSKY:
What does the " alteration" l
6 7'
refer to?
8 I
i1R. SHEA:
Well, that would, I would think, involve changing the -- taking the fuel elements and perhaps dissolvingj 9
10 1 the, tor changing them into plutonium, any change in solid to p
7 s
l 11 liquid torm.
j COMMISSIONER GILINSKY:
Well, they seem to dis tin-12 t
13,
guish between " alteration" and " reprocessing."
COMMISSIONER AHEARNE:
How about enriching?
j 14 l COMMISSIONER BRADFORD:
You'u have to reprocess, 15 i
i 16 first.
You mean before -- before --
ll 17 1 CHAIRMAN HENDRIE:
Now wait a minute.
Read the i
i ja j language again?
I i
19 1 MR. SHEA:
"The SNM produced" -- "No SNM proposed 1
20 to be exported or produced through the use of such material i
21 l will be reprocessed.
And, no irradiated fuel e]3ments l
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22 containing such material removed from a reactor shall be I
altered in form or content <# ~ ~'
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24 COMMISSIONER GILINSKY :
This is standard language.
Ace-Fecer36 Reporters, Inc..
--g'Jithout orior aoproval.
Yes, that is.
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IIR. SEEA:
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O 1052 135
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1 COMMISSIONER GILINSKY:
but what does that refer to?
l 2 ll CHAIRMAN HENDRIE:
Oh, I suppose if you had some l
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and put the low-activity ones back in some fresh cladding, i
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uhy it says don't do that.
7 I wouldn' t hardly imagine anybody trying to do th at,
I 1
but actually where we export slightly enriched feed material 8l 1
to a fuel f abrication line, there's probably a little less 9
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12 are axporting the assemblies themselves.
13 So it isn't much of a proposition either way, but --
i 14 ;
COMMISSIONER KENNEDY:
But the language as it is i
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i 15 !i written would seem to me.would encompass any reprocessing, i
16,
but would extend to any other conceivable alteration they may I
Is that a reasonable interpretation?
make.
17; i
i la MR. SHEA:
Yes.
19 CHAIRMAN HENDRIE:
Yes, I guess one reason not to--
l 20 '
not to uncan fuel and shuffle pellets and cracked pieces and 21 so on, is that it probably then becomes damn near impossible l
I 22 to keep any sort of decent material accounting in place.
23 1 So there's some -- you know, as long as you've got i
i 24 !
it at least nominally in fuel rods, and the fuel rods and Ace Feceral Reporters, Inc. !
uel aIsemblies, why there's a little easier counting that can 25 f
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26 jw'o 27 Ij go on.
Other conments on 5?
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3l COMMISSIONER AHEARNE:
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20 l MR. SHEA:
21 l
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24 l Ace-Federal Reporters, irse.,
25 ;
MR. OPLINGER:
You mean the U.S.
Government --
1052 137 It
27.jwb 28 i
1 MR-RHEA?
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i 22 COMMISSIONER KENNEDY:
Did we do that?
l 23' COMMISSIONER GILINSKY:
We certainly did.
s 24 l COMMISSIONER KENNEDY:
Could you elucidate on that?
Aca Fecarat Reoarttrs, Inc. l 25 l When did we -- How did we do that?
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!i 1052 138 y
28 jwb 29 l
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1j COMMISSIONER GILINSKY:
- Well, u didn't have to deal; i
2 with this until a determination on tae reprocessing plant was l
3 called for.
4 COMMISSIONER KENNEOY:
Well, I -- but I --
i 5
COMMISSIONER GILINSKY:
So I don ' t think there is l
64 any --
7 COMMISSIONER KENNEDY B.
9 10 !
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1I COMMISSIONER GILINSKY:
Yes, I mean --
12 l COMMISSIONER
- KENNEDY:
What -- when did we do it?
13,
And how did we do it?
I just want to refresh my memory.
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COMMISSIONER GILINSKY:
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If the --
l 24 l CHAIRMAN HENDRIE:
Ace-Feceral fleporters, irc.
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COLO1ISSIONER KEN'IEDY :
Wasn't that one of the issues, 21 -
or the theses, rather, that was to be tested in the suit?
I 22 I
2-j MR. DEVINE:
Well, c.cf a safeguards test for that j
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- Also, M to look into i
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,i 1052 140
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1i the whole cuestion, and indeed to devise -- if it were
'2; possible to do so -- safeguardable systems?
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MR. DEVINE:
If possible, yes.
4 COMMISSIONER GILINSKY:
Yeah, but in fact nothing 3
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of the sort has come along.
The only conceivable --
6 COMMISSIONER KENNEDY:
Well, now wait.
Wait.
7, Wait.
I want to be sure the factual base on the record is DEC6 3:
correct.
And as I understand it, +!C has not yet been C
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completed, and a number of studies are still ongoing, and a i
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number of discussions are still ongoing among the participants.
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So that it's a little hard for me to accept the i
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I 14 CO?D1ISSIONER GILINSKY:
I was going to --
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COLD 1ISSIONER KENNEDY:
-- because I don't think that; f
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Isn't that fair?
19 COLD 1ISSIONER GILINSKY:
What I was going to say --
20 COIO!ISSIONER KENNEDY:
I think that's the national 21 policy, at least.
l i
22 COICIISSIONER GILINSKY:
What I was going to say is 1
i 23 l that the one effort along these lines is the approach that --
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24 COMMISSIONER KENNEDY:
But there were others.
A&Feder l Reporters, Inc.
a 25 j That was only one, highly publicized, talked about a great i
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1052 141 n
3,1 'jwb 32 l
1 deal.
2l COMMISSIGNER GILIUSKY:
Well, I guess I can't think j 3
of what --
1 4
COMMISSIONER KENNEDY:
But with a -- with a variety l
5 of interpre tations as to its ef fectiveness, I would add.
h_ _.)nl0 6
is not agreed that, by all parties to the debate about 4?
l 7
that it's unsatisfactory in meeting its objective.
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9 But in any event, I think, it seems to me, all 10 '
that's irrelevant until such time -- if I understand the i
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11 national policy -- until such time as Me-has been completed.
9dOFEE-t qty ['
12 He undertook that with all the parties to Mc, I
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entire question -- all the questions were examined, and we 16,
were'notgoingtoallowourpredik'ctionstoguideour i
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j udgme,n ts.
18 COMMISSIONER GILINSKY:
Well, but it seems to me b
19 y there's a dif ference between keeping an open mind to something i
20 l that someone might bring up, and in --
21 COMMISSIONER KE3NEDY:
Well, since I have not been It}F0 D participating directly in all of the discussions in PC, as 22 li l
- I can hardly say Ni '
23 I assume none of us has, I could hardly d3EC6 i
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Aa rMerat Reporters. inc.
25 Now perhaps others can be more helpful in this I
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regard than I.
COMMISSIONER GILINSKY:
I'm not sure this whole i
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CHAIRMAN HENDRIE:
I was going to say, John, I I
i 5
believe the answer to your question is --
i i
COMMISSIOMER KENNEDY:
All I want to be sure of is 6;
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that we don't --
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CHAIRMAN HENDRIE:
l 9
10 (Laughter. )
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11 CHAIRMAN HENDRIF.:
I think that was suggested at I
12 the beginning of the discussion.
i 13 COMMISSIONER KENNEDY:
I don't want the record to e
i i
14 '
go unchallenged, as generalized statements are thrown on it.
15 :
Indeed, as long as we're going to make such an extensive 16 record, I can assure you that I'm going to spend a lot of i
17 time listening for those generalized statements to be sure that 18 they do not go unchallenged.
Okay?
li N
CEAIRMAN HENDRIE:
Well, other comments on Criterion 19 p.
20i 5,
to sort of return to the main line.
21 !
COMMISSIONER GILINSKY:
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22 i
23 lj l
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COMMISSIONER AHEARNE:
Yeah.
In the impression --
Ac..recerai semm. inc. '
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1052 143 9:.
A3 jwb 34 l
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COMMISSIONER KENNEDY:
That's where we did begin, l
.I 2l and you never answered my question.
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3 i
4 COMMISSIONER GILINSKY:
I just said it.
i 5
COMMISSIONER KENNEDY:
You just said it.
Okay, so i
6 we now have the policy in this regard as enunciated by one of 7
the Commissioners of the Nuclear Regulatory Commission, but 8
not otherwise stated as a matter of national policy.
Okay?
l i
That's what I was trying to get at.
9 I
r COMMISSIONER GILINSKY:
Well, let me -- in that 10 l
11 case, I don't see how you can find that the criterion is met.
i 12,
COMMISSIONER KENNEDY:
That's a different question. l 13 COMMISSIONER BRADFORD:
Let me just throw one other !
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14 point in, if you/ don't mind -- if you were planning to stay 15 on this subject, John?
16 l COMMISSIONER AHEARNE:
Yes, I wanted to --
17 b COI*d4ISSIONER BRADFORD:
Are you going to stay on I
1 18 this?
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19 i COMMISSIONER AHEARNE:
I unfortunately had -- still 20 had a question on it.
y 21 !I COMMISSIONER BRADFO RD :
Okay, if it's in the same 22 area, go ahead.
i 23i COMMISSIONER AHEARNE:
24 I
Ace Feceral Reporters, Inc.
25 i
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34 jwb 35 l
1 MR. SHEA:
It is in a number of them.
I don't 2
know the proportion.
l 3.
COMMISSIONER AHEARNE:
I 4
5 6
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8 MR. SHEA:
9 l
l 10 l COMMISSIONER AHEARNE:
Is that also your understanding 1
11 of what the general intent of the criteria in 127 was?
That i
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end A 12-when it says the United States would permit no reprocessing eg B 13 without the approval of the United States, i
14 l
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16 MR. SHEA:
bo, I don't think you're going to --
17 I
COMMISSIONER KENNEDY:
1 18 COMMISSIONER AHEARNE:
l l
19 COMMISSIONER KENNEDY:
20 i CHAIRMAN HENDRIE:
How would you read that?
21 COMMISSIONER AREARNE:
Well, I'm just trying to j
I 22 understand how this tracks with that criterion.
l l
23 CHAIRMAN HENDRIE:
The criterion says you can't i
i 24 l reprocess unless we agree to reprocess, for whatever reasons Ace FMerai Reporttes, Inc, 25 j we have.
,j 1052 145
35 jwb 36 I
i COMMISSIONER AHEARNE:
Right.
CHAIRMAN HENDRIE:
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17 18 19 t
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CO?O1ISSIONER AHEARNE:
In NMSS's review or sare-i 23 guards, do they ever in their findings use the term 'these t
24 i safeguards are effective"?
Or the safeguards "raay be ef fectiveli Ace Feceral Reporters, Inc.,
6 25 j applied"?
1052 147 n
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MR. SHEA:
Only (inaudible)
- 2 COMMISSIONER AHEARNE:
I'm not talking about these i
3i specifically here; I'm just saying in general, in any case I
4 when NMSS makes a finding --
t 5
MR. SHEA:
Only in the case of physical security, 6
not materials control.
7 CHAIRMAN HENDRIE:
And even in -- but in -- come i
i I
8 back and talk about a domestic U.S.
facility where we have, I
I l'
9 you know, full access to both material control and accounting, 10 !
and physical security, if you use the word " effective," why l
11 it is as the -- in the normal, common use of the word as an i
12 English word, it doesn't have a special code meaning in i
13 safeguards that I know of.
l 14 COMMISSIONER AHEARNE:
15 16 l
'l 17 i
18 i
l 19 i I
I 20 l CHAIRMAN HENDRIE:
21 i
I 22 COMMISSIONER AHLARNE:
Well, no, but even if it --
23 all right, let's suppose -- that's what I meant.
Suppose it's f
l 24 a reprocessing plant.
And suppose it's a Dee5.
Ace Federa6 Repagers. Inc.
25 ;
CHAIRMAN HENDRIE:
I think if it's a lower-case "e" l
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1052 148
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"ef fective," why then it 's a --
l 1
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I COMMISSIONER AHEARNE:
The government could still 2
I then say no, that the safeguards can' t be effectively applied.
I MR. STOIBER:
It's imcortant to note that the 4
I language there is "upon a joint determination."
It's a matter 5
of law, rather than a matter of, say, policy or politics.
I 7'
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COMMISSIONER AHEARNE:
Then is it the general conclusion that currently, as long as the agreement for 13,
cooperatioft remains in effect, that this Criterion 5 is 14 i l
I l
satisriea?
15 I
Jerry?
16 l l
MR. OPLINGER:
I guess I uould have to make --
17 p i
18 j come to that conclusion, because that's -- I mean, it parallels:
i what we've done in other cases.
39 d
20 ll I guess on balance I l
would have to say, "yes, it would meet the criteria."
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l 23 l
~ COMMISSIONER KENNEDY:
Do you all agree with that?
MR. SHEA:
I would agree.
I notice that the State g
Ace Fece,ai Reporters, Inc. !
I Department view considers that the equivalent of Criterion 5 is 25 1052 149
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1 l met, and I think I would agree with that.
i
'2 COfe1ISSIONER KENNEDY:
And you all agree with that, l 3 i as well?
I 4
MR. BICKWIT:
5 i
6l 7
i 8
9 i
10 1 l
l 11 I think a case could be made for that proposition.
12 COMMISSIONER AHEARNE:
But I guess from some of 13 these other comments, that if that doesn' t work here, then it's.
I 14l also not working -- you have the same problem --
l t
15 i COMMISSIONER GILINSKY:
16 I
'7 i 18 COMMISSIONER AHEARNE:
I 19 '
COMMISSIONER BRADFORD:
20 l
21 !
22 i
l 23 24 i Ae+Feceral Aerorters, Inc.
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2 3
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6 7
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COMMISSIONER GILINSKY:
10 11 12 13 l
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15 16 COMMISSIONER AHEARNE:
i 17 i
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16 COMMISSIONER GILINSKY:
19 20 21 COMMISSIONER AHEARNE:
Let me ask -
go back to a 22 question I was asking on the other one.
I think it's more 23 relevant than this one, probably.
24 Under 126, the President has the ability, specificall Ace Federal Reporters. Inc.
5 as well as Criterig[(,4, to waive the necessity for!
25 on Criteri C?5) l 1052 151
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it being applied.
He has to make a determination that applying it would be prejudicial to the achievements of the U.S. Yonpro-j 2
3 liferation objectives.
4 MR. STOIBER:
That's only for Euratom.
i 5
COMMISSIONER AHEARNE:
Really?
126?
l
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COMMISSIONER GILINSKY:
Euratom IA4 yes.
7
[4R. STOIBER:
You see, it relates to those agree-8 ments authorized.
And of course in Section 124 of the Act --
9 124 of the Act solely applies --
l 10 COMMISSIONER AHEAP.NE:
Solely applies, yes.
I i
11 MR. STOIBER:
It'scleverlywordedtoavoidsaying-f 12 COMMISSIONER AHEARNE:
So that that's -- I knew 13 that that was the intent originally, and it was sufficiently I
14 worded so that it only applies to them.
l l
15 COMMISSIONER GILINSKY:
Well, it's what?
It's 16 international organizations and groups of countries?
17 MR. STOIBER:
Section 124 authorizes the President 18 to enter into an international arrangement with a group of 19 nations providing for international cooperation, and the only 20 agreements we have in that regard are the Euratom and IAE.
t i
the issue here, then, I 21 COMMISSIONER AHEARNE:
So that 22 is similar to the other issues; that it really -- it ends up f
23 turning on the question of whether the full-scope safeguards 1
24 provision goes into effect and breaks the agreement of Ace Federal Reporters, Inc.
l 25 cooperation.
1052 152 l
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1 COMMISSIONER BRADFORD:
Depending on the weight you 2
attach to this question of safeguardability and its relation l
3 to Criterion 5.
4 CHAIRMAN HENDRIE:
With regard to chat, Peter, what 5
is your view on that?
6 COMMISSIONER BRADFORD:
Well, I think it's a 7
problem, not only here but in the other countries where we 8
have that same language in it.
One can limp along under this 9
"or the ec,uivalent" business, but the legislative history, as 10 I understand it, makes clear that that's to be narrowly drawn. l 11 My inclination is to look at it in terms of the i
12 totality of circumstances in that country, and also not to 13 apply it in a way that would close down exports in a dozen or I.
I 14 so countries at the same time.
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17 CHAIRMAN HENDRIE:
But in itself it would not 18 constitute a reason to vote overall against the license -- or t
19 would it?
i 20 COMMISSIONER BRADFORD:
Hell, I've never thought of I
21 it that way.
There are enough -- for me, there arr enough 22 other problems that I've just never had to single it out.
In 23 those countries where it's been the only thing wrong, I haven't, 24 voted against one yet.
A:e Federal Reporters, Irtc. g 25 CHAIRMAN HENDRIE:
Have you thought about this one? l 1052 153 l
4 3 $wb 44 1
COMMISSIONER BRADFORD:
Well, it has --
2 (Laughter.)
3 COMMISSIONER BRADFORD:
--- for me, this criterion 4
isn't met anyway, so I haven' t had to --
5 COMMISSIONER AHEARNE:
Pardon me?
6 COMMISSIONER BRADFORD:
That this criterion, as far 7
as I'm concerned, is not met anyway.
8 COMMISSIONER AHEARNE:
In?
9 COMMISSIONER BRADFORD:
With regard to the Indian I
i 10 1 export.
l 11 COMMISSIONER AHEARNE:
And that is -- what do you 12 mean?
13 COMMISSIONER BRADFORD:
The reprocessing criterion I
14 simply is not met with respect to this export, for the reasons !
15 that Victor and I laid out last time.
i 16 COMMISSIONER AHEARNE:.
I see.
l 17 If the agreement were staying in effect?
18 COMMISSIONER BRADFORD:
If the Indians had come 19 along and provided all the necessary assurances --
l 20 COMMISSIONER AHEARNE:
Right.
If they agreed with i
21 full-scope safeguards.
22 COMMISSIONER BRADFORD:
Well, leaving that aside, 1
23 even if they provided all the. ecessary assurances with 24 regard to the past exports, then you get the question that Joe Am-FMeral Reimrters. Inc.
25 is asking, and I just haven't really thought that through.
1052 154
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1 COMMISSIONER AHEARNE:
I see.
2 COMMISSIONER GILINSKY:
I would like to ask an f
3 important point.
The requirement isn't full-scope safeguards; 4
it does turn out that you have to question the continued 5
validity of various safeguard conditions or protections, i
6 because of the way -- the special nature of this agreement, 7
the way it gets bound up with the application of fu'll-scope 8
safeguards.
9 But what's involved here is the continued applica-10 tion of those conditions.
And that doesn't turn on full-scope l
11 safeguards.
In other words, that could be handled separately.
12 COMMISSIONER AHEARNE:
Yes, but isn' t the driving k.
13 factor that criterip which says that full-scope safeguards must, i
14 go into effect?
l l
15 COMMISSIONER GILINSKY:
That's what creates the i
16 problem, but the problem could be resolved without having i
17 full-scope safeguards in effect during this interim period.
I 18 COMMISSIONER AHEARNE:
Yes, I recognize that; I i
19 recognize that.
l 1
20 COMMISSIONER GILINSKY:
Okay.
j l
21 COMMISSIONER AHEARNE:
But if it weren't for 22 Section 128, you wouldn' t have that.
23 COMMISSIONER GILINSKY:
That's what creates the 24 problem that we addressed, yes.
Ace Few8 Reportes. Inc.
25 COMMISSIONER AHEARNE:
Which then gets to the
\\
. 4.,5 j w b 46 i
1 question of -- 128 does have a vaiver in it, doesn't it?
2 MR. SHEA:
A Presidential waiver, that's right.
3 CHAIRMAN HENDRIE:
Let me probe a little bit, 4
because I want to come, at some point -- it seems to me we're 5
exhausting the other issues fairly well -- to the reading 6
which various people put on the-degree of assurance that they 7
want, looking out in time, that each of the criteria are met.
8 And one of the things I'm curious about, since 9
there have been a number of matters raised about exports to j
i 10 1 India, suppose there was no Section 128 in the Act?
How l
11 would people feel about this license -- about the meeting of I
12 the statutory criteria, then?
13 That is, is it solely the prospect that a require-14 ment for full-scope safeguards will not be successfully met, l
t 15 and hence the agreement -- hence we will go into a suspension l
16 of supply, and they may declare the agreement to be in shatters.
17 Is it totally that aspect of the export to India which makes 18 it an unacceptable proposition -- before the Commission, that i
19 is, under its responsibilities?
20 COMMISSIONER GILINSKY:
Well, I mean, the problem 21 is sufficient so that, you know, with the section there, the 22 answer is "no."
23 I think if one had assurances that cover these 24 various points, then I think it would be an acceptable export.
Ace-Federal Reporters. Inc.
25
'i'here are still some residual questions --
1052 156 1
. 45'jwb 47 1
1 CHAIRMAN HENDRIE:
Well, suppose the date -- suppose 2
the date and section -- now I'm just groping to see whether 3
it's a separable matter or not.
I'm curious, in part, for 4
my own thinking as well as to try to understand yours.
5 Suppose, rather than being, you know, close into 6
us, you can have real doubts about the success of negotiations; 7
suppose the date were a decade down the line?
8 COMMISSIONEL GILINSKY:
Well, you know, I don't 9
want to get into these specific dates here.
The fact is, j
l 10 1 when we're looking at a relatively near-term event, obviously i
l l
11 it's a year closer today.
And however long -- you know, far 12 ahead one is supposed to look to the end agreement, 18 months, 13 or 12 months seems certainly to fall within that time period.
14 I mean, I just can' t imagine that when the Congress 15 says such-and-such protection will be applied, that they don't i
16 want you to look more than a few months ahead.
i i
i 17 CHAIRMAN HENDRIE:
No, I don't think that's what l
s 18 I'm poking at.
Suppose one takes the view, as I believe you i
19 do -- as I understand it you do -- that in judging whether one l i
20 of these criteria is met, one looks not only at the assurances I
21 that. are in_ place today as one judges the application, but I
i 22 also looks on down in time, for some distance at least, to see i 23 what one things of the assurances on out in time.
i 24 Now I don't think anybody is proposing that there ac.reerai nmorters. % '
25 has to be 100 percent assurance that a criterion is met l
e 1052 157 l
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l 1
perpetually.
That's impossible.
The Congress knew it was 2
impossible; that can' t be what they meant.
3 I don't think anybod 's proposing that you ignore 4
what you know, or speculate might happen in the future, either.
I 5
That is, don ' t look forward at all -- you know, if it's good 6
enough by midnight tonight, why never mind, never mind the 7
dawn.
I don't think anybody's proposing that, either.
8 I think, in terms of looking forward, the further I
9 you look, why it's reasonable to expect that your ability to i
10 parse the future and judge that assurances will always be l
l 11 there, or how high they would be, gets less, and that you just A/Mm.
i2 expect that.g;p gm Judging standard becomes vaguer as you go 13 out in time.
I think that's fair enough.
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i 14 But the point I was poking at was -- and it will i
15 lead -- it leads eventually to what I hope will be a useful
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i 16 discussion on what level of assurance in fact should you have, 17 you know, in looking out there in order to make a finding that i
18 the criterion are met, from the standpoint of the responsi-19 bilities of this Commission, i
20 And the thing I was poking here about, you know, 1
21 saying suppose it was a decade out, was to say:
Well, suppose i
22 we took.the time at which the imposition of full-scope safe-23 guardr. was going to occur, and let that go on out in time, so i,
24 that, you know, it becones a lot harder to say whether the
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25 negotiation -- whether we think now that the negotiation has l
1ns?
158
48.jwb 49 I
any, you know -- either, you know, assured success, or assured 2
failure.
3 But assume that indeed our looking forward in time 4
to try to adjudge what's going to happen out there, in fact 5
extends to and past whenever that date might be -- maybe 5 i
6 years, maybe 10 -- and I was probing to see whether you could i
7 tell, from your own line of thought on the thing, whether that 8
would make a key difference in your judgment as to whether I
9 these criteria which I think are certainly 2, 4,
and 5, and I
10 I to a considerable extent 1, are met here.
11 COMMISSIONER BRADFORD:
1, 2,
and 5, and to a i
12 considerable extent, 4.
13 COMMISSIONER GILINSKY:
Well, I think, you know, 14 as things get pushed off in the distance, it becomes a more l'
15 speculative matter, and there's less you can say about it.
i 16 But here you're talking about a specific date in the; 17 law.
You've got a pretty firm view on the Indian side as to 18 what they are willing to accept -- and they don't seem to be i
19 willing to accept this.
You've got a s tatement from du3 State i
20 Department that it's highly unlikely that an exemption will l
l 21 be granted.
i 1
22 So, you know, this is relatively firm and it's 23 pretty near-term.
24 CHAIRMAN HENDRIE:
Well, whether it's relatively Aa FMwal Reporters, inc.
25 firm or not, I'll take -- you know, I'll take exception to, in !
i 1052 159 i
4S.jwb 50 the sense that I'd like to preserve my own options to judge i
I that, and I think that's precisely where we end up differing.
2 COMMISSIONER GILINSKY:
Well, let me just tell you, 3
')isthatwhenthe you know, how I look at this in general:
,4 Commission gives its stamp of approval, it's_saying that this 5
6 is a pretty safe bet.
I mean, when it approves exports in general.
7 And the Congress has set up a set of rules for the 8
Commission to follow, and I don't think we've got a great deal 9
i of leeway in bending them because of various political exigenci6 10 I
11 and I don't think the Congress wants the Commission to have, i
i i
an administrative agency to have a lot of freedom.
12 You know, if it meets certain standards, fine; the
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13 J
Coinmission" can handle it.
If it doesn't, if it's a more j
ja 15 complicated situation, then it's something for the President 16 to handle.
And he, properly, has a lot more freedom in dealing l t
with this.
j7 I
So he's free under the law to say:
This may not be 18 i
19 a safe bet, but it's a good risk, or it's worth taking the l
risk.
Or even if it's a long shot, I think it's worth doing.
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20 ti or he may decide it's not worth doing.
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21 l
CHAIRMAN HENDRIE:
Well, I think -- I understand i
22 23 the point, I think, but I come differently.
It seems to me 24 that if one reads the law rs say the Congress has established An FMetal Reprters, inc.
25 a very tight and fairly mechanical set of checkpoints for the I
1052 160 i
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Commission, that -- and the President will handle all the 2
uncertainties, the President will have to judge these 3
assurances down the line, and the national interest, and the 4
inimicality or noninimicality and so on, that I doubt that's 5
what the Congress had in mind.
Because that function could 6
Pretty well be achieved by three clerks in a back office.
7 Is box one okay?
Box two?
Box three?
And all the
.8 uncertain stuff goes to the President, but they kept this in 9
the Act.
t 10 1 COMMISSIONER BRADFORD:
llo, we've had an illustra-l 11 tion.
We've had an illustration today that that's not what i
12 we're doing.
If we were doing that sort of thing, then this l
13 question of the Criterion 5, over say the question of those
~
14 agreements for cooperation, hinged our ability to say no to i
15 reprocessing on safeguardability.
If one were really being
{
16 mechanical about this, those would go to the President.
l 17 If one were being mechanical about this, the 18 countries whose safeguards were called into question l
19 would go to the President.
But we are making judgments of:
20 a sort as to what the threshold of uncertainty is, and sending ;
I l
21 things to the President.
We make it in f avor of assuming the 22 burden ourselves every time we send out something to a country 23 that's named as having problems, every time we l
24 send something to a country on the "or its equivalent" Ace Federal Reporters, !nc.
25 justification sent over by State, every time we send something !
1052 161 l
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5,1'jwb 52 I
i 6A to a country that has this problem of Criterip' 4, Criterip&5, I
n the nature of the assurances.
2 S
it isn't a matter of sitting here -- whether we 3
sit here like automatons, or whether we exercise judgment; it's a matter of at what point you feel you're exercising judgment, and then at what point you feel you're' really starting to take serious chanfes as to whether or not the criteri5 are met.
7 V
CHAIRMAN HENDRIE:
Yes, but I think that's very 8
much an individual judgment matter.
And I guess I would be 9
i inclined to take the view that I think your reading of the g
1 criteria leads you to expect a higher level of assurance, both ;
11 I
in the present language and, p k ectively, than the Congress j
L intended.
13 g
~My view is that the Congress, in writing this l
l' 1 gislation, expected these things to go to the President 15 rarely, if ever.
g COMMISSIONER BRADFORD:
Uell, so far, one has.
t CHAIRMAN HENDRIE:
How many have we acted on?
8 I
COMMISSIONER GILINSKY:
Probably 100.
{
39 COMMISSIONER KENNEDY:
Oh, I'd say -- how many have I
i we acted on?
But we've got an awful lot of them, but we haven't 21 i
e acted on very many, g
(Laughter.)
g I
CHAIRMAN HENDRIE:
You know, I think -- I don't g
Ace-Federal Reporters, Inc. l find anything in -- I must say, I don't find anything in the 25 i
1052 162 i
i
S2 dwb 53 way I read it and sense it and feel it ought to work which strikes me as such a sweeping mandate of logic that I can't e
understand why you don't see it my way, you must understand.
3 I
I think it. is a -- does get to have a lot of judgment call in 4
it, but I -- it does seem to me that we end here passing 4
it on to the President because he has a broader scope in making V
6 that judgment than we do, that we will end up under this sort of a regime in passing on to him more things really than the 8
Congress had intended.
I I think, you know, they argued for a couple of l
l years over this law, and we'll attribute it one way or jj another, and there was a certain existing climate at the time:
a set of agreements in place, a set of language between I
nations going on, a set of arguments, and so on; and the 14 l
1 assurances about some of these criteria were, I would say, 15 not that spendid at the time the Congress sat down and wrote 16 4
this law and said here's the way we ought to do it, and the Commission exercise judgment about whether the criteria are met.
39 COMMISSIONER GILINSKY:
Well, wait --
20 CHAIRMAN HENDRIE:
As I -- you know, I just say that!
21 i
I don't think, by any manner of means, that they were expectingi that the assurances would be 100 percent, or anything like it, g
at all times --
g c c..recerai neporters, inc.
gg l
., 3 3..jwb 54 CHAIRMAN HENDRIE:
-- and they expected that.
And furthermore, there is yet -- we are yet in a 2
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time when the Congress expected we would be in transition from sort of the status that existed when the Act was passed and before that, to a time when these agreements would begin to be upgraded and improved.
So I guess I come to the table with a sort of a lower expectation about the degree of assurance that I can have, looking on out the line, at these things.
9 i
COBB1ISSIONER KENNEDY:
Could I add a bit of an j
g l
historical note on this point?
The reference to the President 11 and his role and his process as contrasted with that of the Commission, and the Commission having acted or failed to act, g
really originated out cf a number of discussions and testimony i
n the part of some members of the Commission to the end that 15 I
questions being dealt with here inevitably, in many cases, involved issues of foreign policy, not just licensing decisions as to nuclear exports, per se; but, rather, had a broader context, inevitably in many cases.
39 i
And as the law had been originally drafted and 20 indeed as the law existed for the NFPA, the Commission's l
21 j
decision was a final one.
And there seemed little opportunity, g
other than through his admonishment of or plea to the Commis-q g
l sion, little way for the President to influence matters which g
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for which he ultimately, with the Congress, is responsible.
3 So it was with that backdrop that the language which) 2 is not here finally was evolved.
Now obviously this language 3
does something a little bit different than a simple, straight-4 f rward veto or override by the President, but that's 5
essentially what it accomplishes.
6 COMMISSIONER GILINSKY:
Well, actually, I think the 7
President had more freedom before this Act was passed than 8
after.
lie had the government-to-government channel which he 9
10 !
could exercise at any time he wanted --
l l
CO!!MISSIONER KENNEDY:
Well, except that the Congress 11 i
1 wisely held a view shared by some Commissioners that for him 12
/_
)
to deal with what is essentially a commercial export in the 13 government:to-governmenttransferroute,wasatleastacircum-l ja i
vention of the law, and at worst an undermining of it.
15 16 And the President had been warned in this regard l
6 by the Congress, and had no intention, I am told, of acting 17 I
in that way, simply because there was at least a dubious 18 character to that action, and he had no intention of proceeding j9 i
in that way.
l 20 S
a theoretical concept, yes; as a practical 21 matter, no.
22 COMMISSIONER GEINSH:
Well, I mean, in fact many j
23 l'
of the Indian shipments went that way.
24 Ace Federal Reporters, Inc.
COMMISSIONER KENNEDY:
Some, many years ago, before 25 1052 165-l
. 5,5 jwb 56 I
the Commission -- before the independent Commission was 2
involved in the exercise at all.
l 3
So that the same agency that would have been conducting the enterprise was also its licensing authority, a 5
rather different concept and situation than has existed since i.
6 1975.
7 COMMISSIONER GILINSKY:
Hell, it's true that the 8
Congress frowned on that approach, but he did have the authorit) 9 and all it would take is the signature of the --
l t
10 1 COMMISSIONER KENNEDY:
Well, I'm simply saying to 11 you that --
j i
12 COMMISSIONER GILINSKY:
-- administrator of the --
13 COMMISSIONER KENNEDY:
-- of course he had the l
I 14 authority to do so, but he had no intention of exercising it l
i 15 given the dubious character of such an action in terms of the i
16 law as it existed after 1975.
17 COMMISSIONER GILINSKY:
But at any rate, there are l'
18 these --
19 COMMISSIONER KENNEDY:
And at least some believed 1
20 that for him to even countenance such a thing was, to say the 21 very leest, unwise.
l l
22 COMMISSIONER GILINSKY:
Well, in fact -- I mean, 23 these are government-to-government shipments.
They are going 24 from -- it's material that's own0d by the United States am rcenai neportes ine.
25 Government which is being transferred to the Government of f
1052 166 l
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1 1
India.
2 COMMISSIONER KENNEDY:
Oh?
Then why are we discus-3 eing them here?
4 COMMISSIONER GILINSKY:
They happen to touch on 5
commercial channels along the way.
But --
6 COMMISSIONER KENNEDY:
Let me just add that I 7
consider the argument highly theoretical and of dubious merit 8
in this context.
9 COMMISSIONE' GILINSKY:
Well, let me just get back 10 I to the point that Joe was making about the -- this transition l
m 11 period.
l 12 You' re not saying -- or are you? -- that during this 13 period the Congress did not intend for any of the criterion not, I
14 to be met in that case, right?
I 15 Because it wauld have been very simple for them to 16 put that into the law --
17 CHAIRMAN HENDRIE:
Let's see.
Wait a minute.
t There are too many negatives,l l
18 COMMISSIONER GILINSKY:
19 CHAIRMAN HENDRIE:
I think you leave me an out, to l
20 answer -- I haven't thoughfabout it, but it makes no differencej
/
s 21 here anyway, because the criteria are met in my view during l
22 the grace period.
l 23 (Laughter. )
24 COMMISSIONER GILINSKY:
Well, you were asking me, Ace-FMeal Regmrters, inc.
25 you know, what if Section 128 wasn't in the Act?
What if it's 1052 167 i
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10 years in the future?
Et cetera, et cetera.
I 1
1 I think it's fair to ask you --
l COMMISSIONER BRADFORD:
And then we'll get your 3
I answer.
4 (Laughter.)
I CHAIRMAN HENDRIE:
I'm not going to answer.
(Laughter.)
CHAIRMAN HENDRIE:
So I think it's fair for you to ask me, bu' fair not to answer.
COMMISSIONER GILINSKY:
Well, I'll answer.
If 10 1 l
assurances on these points are available, then I think it's j) i satisfactory.
l CHAIRMAU HENDRIE:
Hell, let's see.
Now you have f
to straighten up the double negatives, again.
COMMISSIONER GILINSKY:
Well, the question is 15 whether the Congress intended for all exports to all of our (Op i6 s
trading partners be approved during this 18-month or 24-month --
17 CHAIRMAN HENDRIE:
During the 18-month period.
Sort of willy-nilly about the criteria --
g COMMISSIONER GILINSKY:
Yes.
In other words:
Are I
these criteria just met because they were never intended not tol 21 be met during the transition period?
CHAIRMAN HENDRIE:
Or, another way -- you know, that I
would be equivalent to feeling that the criteria became Ace Federal Reporters, Inc.
.S.8 swb 59 I
I I
j period.
'2 COMMISSIONER GILINSKY:
Right.
Right.
CHAIRMAN HENDRIE:
No, I don't think so.
And 3
l indeed, you know, I have to look at things like -- like this 4
S gentleman in, wherever it was, the other day who said --
f COMMISSIONER GILINSKY:
6 CHAIRMAN HENDRIE:
7 8
COMMISSIONER GILINSKY:
9 10 11 12 13 (Laughter.)
' COMMISSIONER GILINSKY:
ja 15 8
16 CHAIRMAN HENDRIE:
Well, anyway, you know -- no, I i
j7 think the criteria in fact are -- you know, as soon as the 18 law was passed, why they became part of the law of the land, 19 and indeed have to be taken into account.
20 And as I say, you know, things like some of thes e I
21 statements that political les ' trs in India seem to feel they have to make have to be a-J
id at some length, in my view, l
22 23 to try to decide where tney fit into the overall scheme of 24 things, and what weight should be given to them.
Ace-Feceral Reporters, Inc.
25 If we had on our table some sort of a report that 1052 169
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i showed clearly that the Indian Government was breaking the ag.w. ment or something like that, running against one of the w
criterion, you couldn't ignore that.
That would be -- you 3
C-couldn't 90 forward then.
4 But it does seem to me that the fact that there was !
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a 2-year, or an 18-month-2-year grace period imposed as part of the law, it says to me pretty clearly that, in addition to the fact that even after the grace period, as I try to read these criteria and look at a case and then look at how tt.ae-9 t
riteria will apply in the future on thati case, I'm not going i
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to require 100 percent assurance.
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18 1980, or whatever the appropriate date is.
39 i
COMMISSIONER GILINSKY:
Well, we're not talking 20 I
i about 100 percent; we're talking about 80, or 20.
l 21 CHAIRMAN HENDRIE:
Well, 80, or 60, or 50, or g
something like that.
And it seems to me, if it ought to be l
23 80, or 50 a year-and-a-half from now, or a year from now, why 24 Ace-Federal Reporters, Inc. l it's somewhat less t,an that now, in order to give some meaning n
i 1052 170 j
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to a transition period to allow negotiations to go forward.
I i
'2 COMMISSIONER BRADFORD:
I would have said proba-l 3
bilities usually work the other way.
Isn' t it true that things.
4 get less certain as we move out in time?
5 CRAIRMAN HENDRIE:
As judged now.
6 COMMISSIONER BRADFORD:
Well, it doesn' t matter.
7 CRAIRMAN HENDRIE:
No -- yeah, yeah, but the fact that there is a substantial section of the law that says:
8 9
Look, we're not going to do all this instantaneously, we're i'
10 1 going to have a transition period; the President is directed l
11 t.o negotiate, and so on, uoes seem to me to read pretty clearlyj l
12 that, for whatever your standard will be af ter that time, that l 13 they' re saying -- and you've got a little bit more elbow room I
14 in the meantime in interpretation of these things than the level 15 of assurance, and so on.
i 16 COMMISSIONER BRADFORD:
But you're not saying, are i
17 you, that a finding that the criteria aren't met is inconsis-1 18 tent with the congressional intent of a grace period?
19 That is, we've already found once that the criteria 20 weren't met, and the shipment went, and the grace period goes I
l 21 on?
22 CHAIRMAN HENDRIE:
No, I'm not.
Because that would 23 imply somehow that the Congress meant to say, "Here are all 24 these criteria, but don't make any negative findings," and Ace Federal Reporters, Inc.
25 that's clearly not the case.
Or, " Don't make any negative
\\052 17\\
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findings for two years," and that's clearly not the case.
I I
wouldn't make any -- I absolutely wouldn't hold in that 2
direction at all.
What I'm --
3 COMMISSIONER BRADFORD:
Because the grace period 4
can take the route that it's taken.
That is, the Commission 5
does not certify that the criteria are met.
It goes to 6
the President --
7 CHAIRMAN HENDRIE:
True.
8 COMMISSIONER BRADFORD:
-- he sends it to the 9
i 10 l Congress; they take a second look at that one as being an l
l 11 especially difficult case.
CHAIRMAN HENDRIE:
Well, as I read it, why that 12 kind of process could very well go on after the grace period.
j 13 l
" COMMISSIONER GILINSKY:
Hell, no, y'ou have to make j
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15 a formal exemption, which is different.
l CHAIRMAN HENDRIE:
How do you mean?
16 l
COMMISSIONER GILINSKY:
Well, 11e would have to j7 I
exempt them from the provisions --
18 i
CHAIRMAN HENDRIE:
Or the full-scope safeguards.
j9 COMMISSIONER GILINSKY:
Right.
Whichis--inotherl 20 l
w rds, there 's no threshold there.
21 CHAIRMAN HENDRIE:
Yeah, yeah.
With regard to the 22 full scope.
But at least as far as the six criterian/ and the i
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President to take a more broad-brush view of things with regard!
25 1052 172
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I to those criteria is as good, you know, three years from now I
'2 l
as it is now, right?
beg C 3
COMMISSIONER GILINSKY:
But the full-scope safe-4 guards falls in a separate category.
t l
5 CHAIRMAN HENDRIE:
Yes.
6 COMMISSIONER KENNEDY:
Well, on that --
7 COMMISSIONER GILINSKY:
Because the grace period l
8 deals with that provision, though.
9 COMMISSIONER KENNEDY:
On that point, could I just i
10 1 take a moment to read Senator Glenn on this precise question that's being discussed here?
II 12 And I'm quoting, he said:
"An important" 13 CHAIRMAN HENDRIE:
I'll be happy, depending on 1
14 whether it comes out my way or not, Dick.
15 COMMISSIONER KENNEDY:
"An important additional 16 factor to be weighed are the provisions of the Nonproliferation 17 Act permitting an 18-month grace period before exports are 18 cut off to nations not accepting full-scope safeguards.
The 19 clear purpose of this interim period,was to allow for negotia-tions on what all have acknowledged Ih a thorny diplomatic 20 21 problem.
There would be little point in waiting out this 22 period, however, if India's position was so rigid that there 23 was simply no prospect of obtaining our negotiating objective.
i' 24 "On the other hand, if there is a fair basis for Ace Feeral Reporters, Inc.
l 25 continuing negotiations, the Act embodies a strong congressional i
1052 173
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1 preference for pursuing this course within the time limits l
2 2
Provided."
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3 COMMISSIONER BRADFORD:
But the course is being 4
pursued, and Senator Glenn has said subsequently that there 1
5 was nothing in what he said at that time inconsistent with whati 6
happened last spring.
7 COMMISSIONER KENNEDY:
No, I would add, in that 8
connection, what he specifically said was, "I believe all the 9
Commissioners acted within the discretion conferred upon them j
f' 10 1 by the Nuclear Nonproliferation Act. "
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11 COMMISSIONER BRADFORD:
Well, he said a lot more l
12 than that, but the point is --
13 COMMISSIONER KENNEDY:
I'll read it all, if you i
14 want, but --
l i
IS COMMISSIONER BRADFORD:
No, no, don't.
16 COMMISSIONER KENNEDY:
-- the simple fact is --
17 COMMISSIONER BRADFORD:
Please don't.
t 18 (Laughter.)
i
=
19 COMMISSIONER KENNEDY:
-- Ehat he says that all 20 the Commissioners acted -- that it is a matter of judgment 21 which they had to reach.
22 CHAIRMAN HENDRIE:
Listen, Peter, that was very l
23 useful.
It kept the marshal from the door.
=
24 (Laughter.)
4+Fenal Rewrters, Inc.
25 COMMISSIONER BRADFORD:
My only point was that if i
1052 174 9
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j Senator Glenn had intended, by the words which you did read,
- 2 to say that India met all the criteria, one assumes that he 3
would have reasserted that thought --
4 COMMISSIONER KENNEDY:
He didn't say that.
l 5
COMMISSIONER BRADFORD:
Okay.
I 6
COMMISSIONER KENNEDY:
He didn't say that at all.
I 7
COMMISSIONER BRADFORD:
That's my only point.
8 CHAIRMAN HENDRIE:
Let's see.
9 Furthermore, this was commentary on the occasion of,
the Commission's -- of theJAa;;S fU b l
I Evard 1060 license --
10 I l
11 COMMISSIONER KENNEDY:
That's right.
I 12 CHAIRMAN HENDRIE:
-- and postdates the enactment i
13 of the law.
And while, you know, I pay a lot of attention to 1
14 what oversight sdocommittee chairmen have to say, why it is l
15 a comment --
16 COMMISSIONER KENNEDY:
Well, particularly since he 17 was the sponsor of the law in the first instance.
l 18 CHAIRMAN HENDRIE:
Well --
1 19 COMMISSIONER KENNEDY:
Which probably has some 20 weight.
f 21 CHAIRMAN HENDRIE:
You can't really retrofit your l
l 22 post-enactment comments to become part of the legislative i
23 history.
24 COMMISSIONER KENNEDY:
It happens everyday.
It's Ace Federal Reporters, Inc.
25 a matter of --
I 1052 175
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I CHAIRMAN HENDRIE:
I know people try, but --
j
'2 COMMISSIONER KENNEDY:
It's a matter of legislative i i
3 Prerogative.
CHAIRMAN HENDRIE:' Let me suggest something to 4
the Commission.
I've wondered whether this afternoon would S
serve to bring us to a divi
'7n of the house, and I'm going 6
7 to propose to you that it not.
'ihe main reason for that is that there alie yet i
8 9
unread papers on --
10 COMMISSIONER BRADFORD:
Indeed, yet unfu2nished.
j i
11 (Laughter.)
12 VOICE:
In'aed, yet unwritten.
13 (Laughter.)
l ja CHAIRMAN HENDRIE:
And I'd kind of like a chance 15 to thumb through those, although it does seem to me that I'm 16 not sure they'll make fundamental differences to anybody's 17 Position, because I think people are pretty well coming down.
jg But I think it might be useful to allow a chance to I
19 contemplate those a little bit.
Furthe rmore, I'm very
?
20 anxious to get us off to another meeting this afternoon, and 21 in order to come forward on this discussion to any sort of I
22 conclusion, why it's going to take the rest of the afternoon.
23 So I would like to suggest that we have a change 24 to digest this incoming, as yet arrived but in the door A&FMeral Reporte,s, loc, 25 material, and gather next week --
l 1052 176 i'
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'66*jwb 67 COMMISSIONER KENNEDY:
What are we talking about?
j 2
COMMISSIONER AHEARNE:
Before you arrived, it was i
3 announced that the State Department has sent us over three 4
documents this af ternoon, one of which was then handed out.
5 COMMISSIONER KENNEDY:
We don't have the others?
MR. PEDERS N:
The other two are in your offices 6
'y7 now.
CHAIRMAN HENDRIE:
8 9
10 11 12 13 14 COMMISSIONER.AHEARNE:
Could I ask another question?j 15 CHAIRMAN HENDRIE:
I would think so.
16 COMMISSIONER AHEARNE:
One was, did not ask i
17 whether anybody else had any other points that they had wanted 18 to make.
I 19 CHAIRMAN HENDRIE:
On Criterion 5, in particular, 20 but I'm willing to go back.
Yes, I hadn't --
l i
21 COMMISSIONER AHEARNE:
I think, where you're i
22 essentially reaching the close of most of this discussion, 23 and whether anybody else had any other points they wanted to 24 make.
Ae Federal Reporters, Inc.
M 25 CHAIRMAN HENDRIE:
Yes, good point.
.Weve there othei-P 1052 177 l
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commentary -- other comments that people would like to make daout Criterion 5?
2 3
I'll tell you, I don't foreclose this kind of discussion next time at all, because I think people, as they 4
5 think abcut it, other things may occur to them --
6 COMMISSIONER AHEARNT:
Sure.
But if they had, it w uld be more meaningful today.
7 And the second was, Len, when do you think you 8
9 might have that legislative history?
i 10 MR. BICKWIT:
Well, the --
11 CHAIRMAN HENDRIE:
Stage one is with you.
I 12 MR. BICKWIT:
-- the memo gave the 14th as a 13 suspense date.
If the Commissioners are eager to see it, that l
1e can be moved up.
l 15 COMMISSIONER AHEARNE:
Well, if the Chairman had l
16 intended, I would want it today.
I want to see it.
17 COMMISSIONER BRADFORD:
What else is there --
jg COMMISSIONER KENNEDY:
I also had asked for something i
19 I was hopeful we'd get.
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20 MR. BICKWIT:
Excuse me?
i I
21 COMMISSIONER KENNEDY:
I also requested something.
l 22 lIR. BICKWIT:
That's right.
In both cases, the i
23 date in the memo was to be the 14th.
I see no problem with I
i 24 moving that up to early -- moving both of thoea up to early Ace Federal Reporters, Inc. I 25 next week.
1052 178 l
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CHAIRMAN HENDRIE:
I would -- I think it would be 2
desirable.
These things that come sort of the day before you 3
meet are kind of tough.
I like to have them in time to have 4
Don Hassell scratch head over them and write me some notes on l
5 them, and then I need to have a night, because I run the 6
paperwork on the night shift.
7 So a couple of day's lead is a help to my system.
8 COMMISSIONER KENNEDY:
Is there any possibility 9
that I could have it before I depart the city on Monday l
10 1 morning?
I 11 MR. BICKWIT:
Yes, si..
i 12 COMMISSIONER KENNEDY:
Then I could read his --
13 MR. BICKWIT:
There's a strong possibility.
14 COMMISSIONER KENNEDY:
I could read it while I'm l
15 gone.
Otherwise, the 14th is fine.
It doesn't make any 16 difference.
l 17 COMMISSIONER BRADFORD:
We keep saying "if."
It's i
18 in fact a legislative history, an assessment of the spent-fuel i
19 returnability, and what else?
i 20 MR. BICKWIT:
The other is the extent to which we I
l 21 neither require nor prohibit language to suggest that under 22 Criterion 1 you need a finding of adequacy.
I 23 CHAIRMAN HENDRIE:
Okay, so there's that material 1
24 coming from the counsel's office, and you might tell -- you ac ree,e nemrrers. inc.
I 25 might tell Lou that you made a -- if " confirmation," or
<nc7 170 i
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clarification, or whatever is going to flow from the Mystic 2
East, that it damn well better flow fast.
I 3
COMMISSIONER KENNEDY:
You'd better hurry up and 4
tell him, because he's on his way to Japan and Korea.
l 5
CRAIRMAN HENDRIE:
And I would really then look j
i 6
forward to asking for division of the house next time, the 7
15th when we meet on this subject.
I think we've gone far 8
enough, and exercised Ehings.
9 Yes, sir?
i 10 COMMISSIONER BRADFORD:
I just had -- you know, we l
l 11 have talked quite a lot about what the level of assurances i
I i
12 ought to be.
We haven't talked much about what they are.
j l
13 Let me just roll out what I see them to be, and ask [
I 14 if people find a major reason to disagree with it.
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18 19 COMMISSIONER KENNEDY:
l 20 l G1MISSIONER AHEARNE:
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21 COMMISSIONER BRADFORD:
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1052 180 23 24 COMMISSIONER KENNEDY:
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COMMISSIONER BRADFORD:
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5 COMMISSIONER KENNEDY:
Yes,'ut that's a Presidential o
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waiver, and I think it's impractical at least for us to make 7
any judgments on that score.
COMMISSIONER BRADFORD:
Well, but the Executive 8
ic che one who keeps the phrase " highly unlikely."
j 9
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10 COMMISSIONER KENNEDY:
Well, I don't care.
Until l
11 the President says that, since it's his waiver, I accept i
i 12 nothing the Executive Branch says on the score, and particularly 13 in this field, where the Executive Branch speaks with more I
14 voices than there are people in it, if that's possible.
i i
15 So I, you know --
16 CHAIRMAN HENDRIE:
It must be possible.
17 COMMISSIONER KENNEDY:
Yeah, because they do it.
I 18 As a practical matter, you know, it is a fact that 19 the Executive Branch speaks with voices, many of which are 20 committed to differing points of view, and many of them wholly 21 inconsistent with the views of the President.
That's a fact.
22 COMMISSIONER GILINSKY:
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25 COMMISSIONER KENNEDY:
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5 COMMISSIONER GILINSKY:
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COMMISSIONER BRADFORD:
8 9
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COMMISSIONER KENNEDY:
Has he been asked?
10 !
i COMMISSIONER BRADFORD:
Yes, I think so.
jj COMMISSIONER KENNEDY:
I don't recall his being l
12 l
i asked.
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-COMMISSIONER GILINSKY:
Well, I don't remember any 14 l
suggestion that it was anything -- that the answer was anything!
5 but that.
COMMISSIONER KENNEDY:
Never asked, that I'm aware f.
So I don't interpolate -- as I say, I never -- it's been 8
a sort of rule, never interpolate what the President's j9 decision is going to be.
It's his decision.
,0 4
i MR. OPLINGER:
It's the President's decision, with 21 congressional approval.
i 22 t
COMMISSIONER KENNEDY:
That's correct.
That's 23 Correce.
7 Ace. Federal Reporters, Inc.
1052 183
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indicated their reluctance to go along with any waiver after l
2 1060.
4 3
COMMISSIONER KENNEDY Well, again, you know, as 4
a matter of national policy, it would be foolhardy for anybody I
3 to suggest otherwise, wouldn't it?
l 6
I mean, it would be the opposite of every rational 7
negotiating strategy.
8 MR. OPLINGER:
Well, I'm not sure they did that.
9 Was it unclassified?
10 I COMMISSIONER BRADFORD:
Well, in any case, it's --
l l
11 COMMISSIONER KENNEDY:
Sure it was.
It was a i
12 public meeting.
13 IIR. SHEA:
It was a letter from Sparkman to the
~
14 President.
15 COM.NCSSIONER BRADFORD:
16 17 18 19 9
20 I
21 22 23 24 Ace FMeraI Rumrters, inc.
25 1052 184 l
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12 CHAIRMAN HENDRIE:
Higher.
I can't put a number 13 l
to it.
ja 15 COMMISSIONER KENNEDY:
But also suggesting that 16 whatever level -- whatever assessment one puts on that, it has
- j7 to be put in the context of the purposes of the Act, two of jg which, it seems to be, are relevant:
19 One, the Act has, for one of its principal pur-l 20 poses, establishing the United. States as a reliable supplier 21 in the eyes of the world.
i 22 And two, doing that for the purpose of furthering i
our nonproliferation objectives.
l 23 l
24 And I am hardput to see, in the present circum-Ace-Fede, a e rters, Inc.
N 25 stances, how either of those objectives of the Act would be?
t 1052 185
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be served in a circumstance in which, as Mr. Glenn well points j
2 ut, there is a possibility of meaningful and continuing --
t 3l and for perhaps successful negotiations -- in the face of that, I
to cut off the fuel supply which make possible those continuing 4
negotiations.
5 COMMISSIONER GILINSKY:
Well, we are not talking 8
6 here about cutting off the fuel supply.
The only decision 7
f r this Commission to make is either to approve a license, or 8
hand it over to the President.
9 10 1 But I wanted to ask you --
i tj COMMISSIONER KENNEDY:
No, you can disapprove a j
12 license, in which case it goes to the President if the President i
13 wishes to pick it up.
j i
" COMMISSIONER GILINSKY:
I want to ask you.
I mean, !
ja 15 do you --
16 COMMISSIaNER KENNEDY:
Isn't that correct?
MR. BICKWIT:
That is correct, although the j7 18 President has said that -- or the State Department has said 19 that the issuance of this license would not --
COMMISSIONER JILINSKY:
But isn't the law phrased 20 I
21 in terms of there being a majority in favor of licensing?
22 Failing a favorable Commission vote, it goes to the President? f l
COMMISSIONER BRADFORD:
That's right.
Failing a i
23 i
24 finding that the criteria are met.
.\\ce Federal Reporters, Inc. I COMMISSIONER GILINSKY:
Yes.
But -- but that apart,?
25 l 1052 186 l
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is it in your view -- is the situation that the criteria are 2
met?
Or --
3 COMMISSIONER KENNEDY:
I am satisfied that they 4
are.
5 COMMISSIONER GILINSKY:
Or is it your view that 6
the Congress never intended for them not to be met during this 7
period?
8 I mean, are they met in e~ffect by definition?
Or 9
are they met --
i 10 I COMMISSIONER KENNEDY:
You've got too many " nots" 11 in there.
I 12 COMMISSI NER GILINSKY:
Are they met because each 13 one -- you evaluated each one and you feel they are in fact i
14 met?
l 15 COMMISSIONER KENNEDY:
I am satisfied that they are 16 met.
17 CHAIRMAN HENDRIE:
Okay, I'm coming down, on 18 Dalance, that they are met, Vic.
Not the other way, that 19 Congress didn't mean --
20 COMMISSIONER GILINSKY:
As a result of the one-by-21 one evaluation of the criteria?
i 22 CHAIRMAN HENDRIE:
23 1052 187 24 Ace Ferseral Reporters, Inc.
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COMMISSICNER GILINSKY:
8 9
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CHAIRMAN HENDRIE:
10 11 12 13 14 15 16 17 1
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21 COMMISSIONER GILINSKY:
22 23 I
1052 188 2d Ace Feceral Reporters, Inc.
25 CHAIRMAN HENDRIE:
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COMMISSIONER GILINSKY:
- 2 CHAIRMAN HENDRIE:
3 COMMISSIONER AHEARNE:
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13 14 15 COMMISSIONER BRADFORD:
16 17 18 COMMISSIONER KENNEDY:
19 COMMISSIONER BRADFORD:
20 21 22 COMMISSIONER KENNEDY:
23 COMMISSIONER BRADFORD:
1052 189 a
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COMMISSIONER KENNEDY:
Hell, that is the argument which of course I've been espousing all the time.
The passage 4
l 5
of time has in fact made things better.
That's what the 18-m nth period was for.
6 CHAIRMAN HENDRIE:
I don't --
7 COMMISSIONER BRADFORD:
Yes, but they wouldn't --
l 8
CHAIRMAN HENDRIE:
You know, Peter, I --
9 t
10 i COMMISSIONER BRADFORD:
The period is going to run
{
11 out long before the --
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12 COMMISSIONER KENNEDY:
I think that's entirely on l
1 13 the acceleration rate.
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' CHAIRMAN HENDRIE:
Yeah, you know, that's -- I l
ja 15 must say, that's a judgment and I can't, you know -- as I say, 16 I don't have any marvelous logic that will show you in a way l
l that even the meanest intellect can sustain that you're wrong, '
17 t
but --
l 18 6
19 COMMISSIONER KENNEDY:
Peter, I defend your right to:
20 make that judgment.
I just don't agree with it; that's all.
i CHAIRMAN HENDRIE:
But my judgment is that we'd be 21 22 a lot bettec off in the Indian negotiations if the last license l 23 in fact had gone from here, rather than from the President, l
24 and with the attendant delay, and hoopla, and comments pro and Ace-Federal Reporters, Inc. I 25 con in the Congress, and in the papera, and every place else.
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1 So, you know, it depends on how you read it.
e
'2 COMMISSIONER BRADFORD:
No, the only other point I 3
think worth making there, is that whatever one, thinks of that, 4
and whatever one makes of the Indian negotiations, one has to 5
also consider the impact on other countries with whom we do 6
business of seeing whether or not the United States Government 7
takes its own criteria relatively seriously.
8 And if the one country who has used U.S. material 9
for the making of a weapon, we turn the criteria --
10 CHAIRMAN HENDRIE:
Steady.
I 11 COMMISSIONER BRADFORD:
I'm not steady.
I don't l
12 think that's even contested anymore, i
13 CHAIRMAN HENDRIE:
Well, what is the U.S.
material 14 used in the making of the weapon?
l 15 COMMISSIONER BRADFORD:
Tite heavy water that's used 16 in.the reactor.
Surely -- I don't think there are any
,1 17 defenders of the 10-percent-a-year evaporation rate anymore.
18 CHAIRMAN HENDRIE:
And would you say that if we 19 hadn't supplied the heavy water, they wouldn't have made 20 a weapon?
i 21 COMMISSIONER BRADFORD:
No, no.
The point is that 22 if, in that country, we turn the criteria into pretzels, to ga l i
23 on sending the supplies, it's very hard to ask other countries 24 around the world to think that we take the law -- or that we
,\\csf ederal Reporters, Inc.
I 25 [
take its purposes very seriously.
1052 191
181.jwb 82 CHAIR 1AN HENDRIE:
Well, I'll reply that there is 3
another side of that coin.
Let me put it to you this way:
.2 It seem s to me that other countries look and see us looking 3
very carefully at these criterion against the Indian situation, 4
5 r under a mandate from the Congress to be a reliable supplier of fuel.
There is an existing agreement in process.
We're 6
negotiating hard witn.the Indians, and they're negotiating 7
hard back at us to try to get the best deal from their side, 8
and so on.
9 j
u 10 l And the Commission now throws up its hands and i
11
- says, "Oh, what the hell.
We aren't guaranteed that all of i
i 6
12 these things are met, so no license.
The President wants to issue it?
Let him do it."
13 l
l ja
'If I were another country, I would say, "For crying i 15 out loud.
These people are making a mockery out of that law, 16 and they don' t mean to be reliable suppliers.
They look for l
j7 every excuse they can find to shut of f fuel, and I won't have i
18 a damn thing to do with them that I can help. "
l l
19 So, you know, I think for every thrust that you can 20 make that way, why I think the -- my feeling is the other one i
i 21 is the more stronger running and correct one.
f i
COMMISSIONER GILINSKY:
Well, the law does talk 22 23 about guarantees.
I mean, you do want guarantees on safeguards {
i 24 and the various other conditions.
I mean, we wouldn't export f
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25 to someone if we didn't have an agreement on these guarantees.
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COMMISSIONER BRADFORD:
But there are liabilities i
l 2
to countries -- and I think I'm quoting the chair on nonpro-l l
3 liferation objectives.
4 COMMISSIONER GILINSKY:
But let me ask you on that 5
point --
6 CHAIRMAN HENDRIE:
7 8
9 COMMISSIONER BRADFORD:
10 I CHAIRMAN HENDRIE:
l 11 12 13
(
i i
la Com11SS10NER GILINSKY:
j j
15 CHAIRMAN HENDRIE:
16 17 18 19 COMMISSIONER BRADFORD:
20 I
21 CHAIRMAN HENDRIE:
22 COMMISSIONER BRADFORD:
I 23 l
24 CHAIRMAN HENDRIE:
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1 COMMISSIONER GILINSKY:
Hell, let me ask you this.
Os t
2 Let's set criterien aside --
I 3,
CHAIRMAN HENDRIE:
1 4
COMMISSIONER GILINSKY:
Let me --
l 5
CHAIRMAN HENDRIE:
In order -- if I'm going to get i
6 to my other meeting this afternoon and not lose it completely, 7
I wonder if we can carry the discussion forward through to l,
8 that meeting?
We ought to have it.
I 9
COMMISSIONER GILINSKY:
We ought to make John pay I
10 '
the cover charge.
I i
11 (Laughter.)
i i
12 CHAIRMAN HENDRIE:
We'll send him a consulting --
13 a bil.'.
~
14 (Laughter.)
15 CHAIRMAN HF1:DRIE:
Or, rather -- rather, whoever 16 he vo tes w.i :h, send him the primary bill, and the other party 17 can send a --
i u3 COMMISSIONER AHEARNE:
Well, I'm paying consulting 19 fees.
I am very parsimonious.
20 (Laughter.)
21 CHAIRMAN HENDRIE:
He doesn't pay much for help.
22 COMMISSIONER AHEARNE:
No, I pay a '.ot for help.
23 CHAIRMAN HENDRIE:
Well, I think -- you know, I L
i 1
24 said the other day that sooner or later we'd get down to sort Acs-Fer*eral Reporters, Inc.
25 of the bedrock of the discussion and get to the. root issues, 4
i.
.t
g8
.jwb 85 and I think we've come fairly there, and I think it's a good j
.2 discussion and very useful to sort these things out.
3 But I will just lose the next meeting.
We won't I
4 have a chance to go into those things.
There are a couple oi 5
things there -- one thing that's beginning to press -- well, 6
two things beginning to press that I've had to cancel those 7
meetings in the last couple of weeks, and we have got taese ther papers.
We're going to have to have the meetings.
8 9
Okay?
j l
10 Let's see.
What I would ask the Commissioners to l
11 note with regard to the tane of this meeting, it has been a i
12 closed meeting.
There's been some classified material discussed i
13 here, and things said which I'm sure will be stamped "clas-I
~
ja sified" in view of the foreign relations aspects.
15 I would ask you to join me in voting that this 16 tape be reviewed by the counsel, with help from OPE and IP as j7 appropriate, and that the -- at a reasonable time, the non-18 classified material sections of it go in the transcript in 19 the PDR, as is our custom.
Does that strike you as all right?
20 That is, I wouldn't class this necessarily as a 21 sort of thing where you would want -- where our feeling would f
22 be you'd just want to put this one away and not put it out.
I !
l l
23 think it ought to be reviewed and, you know, not let too much l
24 time run before filing it.
Ace Federal Aeporters, Inc.
25 I think you will have to read it fairly carefully, 1052 19b l
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- . 45 # wb 86 3
l l
1 because I think the caution that Vic noted earlier is a valid j
2 i one; that because it is a closed meeting, and we do have 3
classified materials at hand, we tend to talk in fairly frank 4
and sometimes exaggerated terms about positions of governments, 5
and statements of people, and that these, in the international 6
sphere, have a great sensitivity, and I think there's a perfectlyreasonablebasistoclassk1hattoavoid,youknow, 7
)
L 8
prejudicing the interests of the United States.
Okay?
9 So if you will join me in that kind of use of the j
i 10 tape, or dealing with the tape, very good.
{
l 11 So ordered.
Thank you very much.
l 4
12 (Whereupon, at 3:45 p.m.,
the meeting was I
13 adjourned.)
jg 15 16 17 l
18 19 20 1
21 22 I
23 24
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