ML19259A855
| ML19259A855 | |
| Person / Time | |
|---|---|
| Site: | 07001968 |
| Issue date: | 12/21/1978 |
| From: | Nosenzo L STATE, DEPT. OF |
| To: | James Shea NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| References | |
| NUDOCS 7901110083 | |
| Download: ML19259A855 (16) | |
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DEPARTMENT OF STATE mr' w.. re. :: c.
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. 3. ' e'. 2 BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS 7 0~l I *f Eq3 DEC 27 PM 4 30 December 21, 1978
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.......d.'.,e MEMORANDUM FOR JAMES R.
SHEA NUCLEAR REGULATORY COMMISSICN Enclosed is an Executive Branch analysis covering a request for amendment to export license application XSNM-744.
On December 27, 1977, the Executive Branch had recommended to the NRC that this application be approved.
The amendment relates to a change in end use, country of ultimate destination and ultimate consignee.
In view of the passage cf the Nuclear Non-Proliferation Act of 1978 (P.L.95-242) since the earlier Executive Branch analysis and recommendation was prepared, the present analysis ad-dresses not only the issues raised as a result of the amendment but also, in accordance with the requirements of Section 126 a.
( a' ) of the Atomic Energy Act, specif-ically addresses the extent to which the specific criteria it Sections 127 and 128 are met, as well as certain ad-di:ional factors envisaged by Section 126 a. (1).
The Executive Branch, on the basis of its review of this case, has concluded that the requirements of the Atomic Energy Act and P.L.95-242 have been met and that the proposed export would noc be inimical to the ecmmen de-fense and security of the United States.
The Executive Branch therefore recc= mends issuance of the requested ex-port license.
A
,i pm VW,5 ucuis V. Nos'enzo Deputy Assistant Secretary Enclosure As stated 790111 M 3
EXPORT LICENSE APPLICATION ANALYSIS XSNM-744 Amendment Country:
France Transaction:
The export of 2.48 kilograms of plutonium and 61 kilograms of natural uranium in the form of plutonium oxide as scrap powder and pellets Applicant:
General Electric Company Date of Application:
May 12, 1978 Purpose of Export In the mid-1960's, the owner of this material, Ente Nazionale Per L'Energia Elettrica (ENEL), sent a quantity of plutoniur, as PuO2, produced in their United Kingdom-supplied Latina Reactor to the United States for fabrica-tion of mixed oxide fuel (MOX) at General Electric's Vallecitos Nuclear Laboratory.
The MOX fuel was exported in 1967.
The material covered by this export license application consists of the scrap remaining from the fuel fabrication in the form of plutonium oxide and plutonium oxide mixed with uranium oxide as scrap powder and pellets.
This material is to be shipped to Belgenucleaire in Belgium for recovery of the plutonium oxide which will tl.en be delivered to ENEL at the Cadarache fuel fabrication facility of the Compagnie Generale Des Matieres Nucleaires (COGEMA) in Marseille, France.
Mixed oxide fuel elements fabricated at Cadarache from this material ultimately will be used for the Creys-Malville fast reactor which is currently under con-struction in France.
ENEL holds one third of the shares of the firm which is constructing the Creys-Malville reactor.
DELEGATION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES August 16, 1978 JM/mc Mr. Vance H. Hudgins Assistant Director for Politico-Military Security Affairs Division of International Security Affairs Department of Energy Washington, D.C.
20545
Subject:
General Electric Company Amendment to application XSNM-744 S-47 for the export of uranium-plutonium to COGEMA, France, via Belgium
Dear Mr. Hudgins:
This letter supersedes our letters of May 5, 1976 and August 20, 1975.
We certify that the material mentioned in this application, namely 2.48 Kg of Plutonium and 61 Kg of natural uranium and the transfer of this material will be subject to all terms and conditions of the Additional Agreement for Cooperation, dated July 25, 1960, as amended.
Further we certify thau Belgonucleaire, Belgium, as intermediate consignee, and Ente Nazionale per l'Energia Elettrica (ENEL) at the CCGEMA fuel f abrication f acility
~
of Cadarache, France, as ultimate consignee, are authorized by EURATOM to receive and possess this material pursuant to the aforementioned Agreement for Cooperation.
The above plutonium, af ter recovery at Belgonucleaire, Belgi_
and fuel f abrication at Cadarache, France, will be used in the Creys-Malville fast reactor, France.
Sincerely yours, hLEUA (vr F. SPAAK Head of Delegation cc:
Robert DeLabarre, State Dept.
Ms. Janice Dunn, NRC 2100 M Street NW Suite 707 Wasnington rc W / tewonone (2021872-8350 / teiew: Washington COMEUR 24455
EUROPEA2; COMMUN!W (EURATOM) EXPORT LICENSE APPLICATION AliALYSIS 1.
Applicable Acreement for Cooperation The material covered by the export license applica-tion amendment is subject to all of the terms and conditions of the Additional Agreement for Cooperation Between the United States and the European Atomic Energy Cc= mission (EURATOM),
as amended.
This fact has been confirmed by letter from the Delegation of the Cc= mission of the European Cc== unities, a copy of which follows the description of the transaction.
The Additional Agreement entered inte force on July 25, 1960.
The European Atomic Energy Cc== unity has adhered to all previsions of this agreement with the United States.
2.
Extent to Which Export Criteria Are Met A.
Section 127 Criteria As provided in Section 127 of the Atomic Energy Act, the following criteria govern exports for peaceful nuclear uses from the United States of source material, special nu-clear material, production or utilization facilities, and any sensitive nuclear technology:
Criterion (1)
"IAEA safeguards as required by Article III(2) of the Treaty will be applied with respect to any such material or facilities proposed to be exported, to any such material or facilities previously exported and subject to the appli-cable Agreement for Cooperation, and to any special nuclear material used in or produced through the use thereof."
Belgium, the six other non-nuclear weapons state members of the European Community and the United Kingdom are parties to the Treaty on the Non-Proliferation of Nu-clear Weapons (NPT).
Each of those seven states (Belgium, Denmark, the Federal Republic of Germany, Ireland, Italy, Luxembourg and The Netherlands) thus undertook the obliga-tion in Article III(l) of the NPT to accept safeguards of the IAEA on all nuclear material in all of its peaceful nuclear activities and to enter into an agreement with IAEA to that effect.
As permitted by Article II!(4) of the NPT, those seven states elected to join in concluding a single agreement with the IAEA (INFCIRC/193).
Since they had already assigned to the European Atomic Energy Community (EURATOM) the responsi-bility and authority to apply safeguards within their terri-tories (rather than each state establishing and maintaining a national system of accounting for and control of nuclear material), EURATOM is also a party to that agreement.
The agreement, after approval by the Board of Governors of the IAEA and the European Community and ratification by each of the seven states, entered into force on February 21, 1977.
As in the case of all safeguards agreements between the IAEA and non-Nuclear Weapon states pursuant to Article III(l) of the NPT, the agreement with EURATOM and its seven non-nuclear-weapon member states includes provision for the com-pletion by the parties of " Subsidiary Arrangements", setting forth in detail the manner in which the safeguards procedures called for in the agreement are to be carried out.
In prac-
tice, the Subsidiary Arrangements consist of a general part and, for each of the f acilities and locations in which IAEA safeguards are to be applied to nuclear material pursuant to the agreement, individual " Facility Attachments".
The Agreement calls for the parties to make every effort to achieve the entry into force of the " Subsidiary Arrange-ments' within 90 days of the entry into force of the agree-ment proper.
Extension of that period requires agreement among all the parties.
During the period since February 21, 1977, the parties have been negotiating the Subsidiary Arrangements, including Facility Attachments for the 205 facilities and locations which currently come within the purview of the agreement.
The general part of the Subsidiary Arrangements has been com-pleted and is in effect.
As of September 15, 1978, approxi-mately 145 of the Facility Attachments has entered into force and serve as the basis for IAEA safeguards activities at such facilities.
About 15 others had been agreed at the negotiating level and the remainder were under active dis-cussion.
The parties have agreed to several extensions of the period for completion of the Subsidiary Arrangements, in accordance with the agreement.
The latest such extension runs until February 20, 1979.
The EURATOM /IAEA agreement provides, as does every safe-guards agreement with the IAEA pursuant to Article III(l) of the NPT, the right to the IAEA to apply in all non-nuclear weapon states party to such an agreement, the procedures laid down in the agreement, including inspections, as soon as the agreement enters into force, even if the Subsidiary Arrange-ments are not in force.
The agreements do not impose on the IAEA any limitation of access, or frequency, of these in-spections prior to completion of Facility Attachments (see e.g.:
Articles 71 and 76 of the agreement with EURATOM and it member non-nuclear weapon states, INFCIRC/193).
The IAEA has, since the entry into force of the EURATOM /IAEA agree-ment, increasingly exercised this right to apply procedures and inspections.
The Agency's general approach is to carry out such in-spections so as to schieve the same verification goals which they would aim for normally under a Facility Attachment.
For example, frequency of visits would be related to timeli-ness goals.
The Agency does, of course, have manpower limi-tations in this regard, and generally places greater emphasis on facilities involving sensitive material.
In some facili-ties surveillance equipment is employed prior to completion of Facility Attachments, while in other cases inspector pres-
ence must be relied upon.
In the non-nuclear weapon member states of EURATOM, all facilities with the ex-ception of a few research reactors (LEU-fueled or low power) and other research installations have been inspected by IAEA.
In summary, it is clear that each of the non-nuclear-weapons state members of EURATOM is a party tc the NPT, has fulfilled its obligation under Article III(l) 1f the NPT, and has an agreement in force with the IAEA in accordance with Article III(4) of that treaty under which the IAEA has clear rights, which are being exercised, to apply safe-guards in all relevant facilities.
Therefore it is the Executive Branch view that cri-terion (1) is met.
We would note that the EURATOM safeguards system, be-cause of its continuing accountancy and materials control function for the EURATOM Community countries, will remain one of the factors relevant to the judgment of the Execu-tive Branch, under Section 126(a)(1), that a proposed ex-port to one of these s*ates will not be inimical to the common defense and sect ty.
As a nuclear-weaporm-state (NWS), France is not sub-ject to IAEA safeguards as required by Article III(2) of the Treaty.
Therefore, it is the Executive Branch view that criterion (1) is met with respect to this ex-port to France.
With regard to application of safeguards in France, EURATOM safeguards are being applied to material and f acilities previously exported and subject to the US-EURATOM Cooperation Agreements and to special nuclear material used in or produced through the use thereof.
These agreements require these safeguards to be applied to such material and facilities and to the proposed ex-port and special ruclear material produced through its use.
Furthermore, some -- if not all -- U.S.-supplied source and special nuclear material and special nuclear material generated through the use thereof may be sub-ject to the application of IAEA safeguards under GOV /1875, which came into force on February 13, 1978.
This agreement calls for the application of IAEA safeguards, essentially under INFCIRC/153 technical criteria, on source or special fissionable material to be designated by France in facilities or parts thereof within France.
Criterion (2)
"No such material, facilities, or sensitive nuclear technology proposed to be exported or previously exported and subject to the applicable Agreement for Cooperation, and no special nuclear material produced through the use of such materials, facilities, or sensitive nuclear technology, will be used for any nuclear explosive device or for research on or development of any nuclear explosive device."
Each non-nuclear-weapons state (NNWS) of the Community is a party to the Nuclear Non-Proliferation Treaty (NPT).
As such, it is pledged not to develop nuclear explosive devices for any purpose.
This pledge applies to any material, fa-cilities and sensitive nuclear technology previously ex-ported to such state by the US and subject to the US-EURATOM Agreements for Cooperation and to special nuclear material used in or produced through the use thereof.
Since this pledge will apply to the proposed export and to any special nuclear material produced through its use, it is the view of the Executive Branch that criterion (2) is met with respect to the NNWS of the Cormunity.
With regard to the two nuclear-weapons states (NWS) of the Community, the UK and France, the proposed export and any special nuclear material produced through its use, if trans-ferred to a NWS member, is subject to the continuing applica-bility of the US-EURATOM Agreements for Cooperation.
Article XI(l) and (3) of the November 8, 1958 Joint program Agree-ment, as amended, which is incorporated into the Additional Agreement for Cooperation by virtue of Article V of the Additional Agreement, provide that "no material, including equipment and devices, transferred pursuant to this Agree-ment" and "no source or special nuclear material utilized in, recovered from, or produced as a result of the use of material, equipment or devices transferred pursuant to this agreement...
will be used for atomic weapons,'or for research or develop-ment of atomic weapons or for any other military purpose."
The US--with the support of most other major nuclear supplier states--consistently has taken the position that nuclear explosive devices are " atomic weapons", within the meaning of this guarantee, regardless of the intended end use of such devices.
Both the UK and France, as members of the Nuclear Suppliers Group, have agreed as a matter of national policy to authorize the export of trigger list items "only
upon formal governmental assurances from recipients ex-plicitly excluding uses which would result in any nuclear explosive device" (underlining supplied) and have each notified the IAEA to this effect.
This undertaking, to-gether with other statements and actions, evidences the fact that both nations equate any nuclear explosive device, regardless of function, as essentially equivalent to an
" atomic weapon".
Therefore, it is the Executive Branch view that the equivalent of criterion (2) is met with respect to NWS of the Community.
Criterion (3)
" Adequate physical security measures will be main-tained with respect to such material or facili' ties pro-posed to be exported and to any special nuclear material used in or produced through the use thereof.
Following the effective date of any regulation promulgated by the Commission pursuant to Section 304(d) of the Nuclear Non-Proliferation Act of 1978, physical security measures shall be deemed adequate if such measures provide a level of protection equivalent to that required by the appli-cable regulations."
It is the judgment of the Executive Branch that each member state of the Community has established physical security measures which, as a minimum, meet those recom-mended in the IAEA's INFCIRC/225/Rev.1, "The Physical Protection of Nuclear Material".
In addition, all states in the Community (except Den-mark, Ireland and Luxembourg) also are members of the Nu-clear Suppliers Group and, as such, have agreed to levels of protection consistent with INFCIRC/225/Rev.
1, to be ensured with respect to nuclear materials and equipment and facilities containing these materials, which are de-tailed in transmissions of the Nuclear Suppliers Guide-lines to the IAEA.
On August 4, 1978, the Foreign Ministry of Belgium provided the following assurance in the form of a note to the U.S.
Embassy in Brussels:
" Referring to your letter of July 1978 transmitting an aide-memoire addressed to the Commission of the European Communities concerning the problem of physical security and the US Nuclear Non-Proliferation Act of 1978.
I have the honor to confirm to you...that Belgium ensures physical security measures as specified by document INFCIRC/225/Rev.l.
Such assur-ance, was, already given on joining the Club of London."
The French Ministry of Foreign Affairs by note dated September 11, 1978 delivered to U.S.
Embassy, Paris, pro-vided the following assurances regarding the maintenance of physical security protection:
"The French Government confirms that a level of physical protection at least equal to that defined in Annex B of the Nuclear Supplier Guidelines published by the IAEA under reference INFCIRC/-
254, will be assured for all nuclear material and in-stallations imported from the United States as well as all nuclear material used or produced by use of such material and installations.
"The French Government can equally confirm that the same level of protection is assured for material and in-stallations already imported from the United States."
The Executive Branch by letter to the Commission dated October 6, 1978 expressed the view that the above-cited French assurance meets the requirements set forth by the Cc= mission under Part 110.43, pursuant to Section 304(d) of the Nuclear Non-proliferation Act of 1978, in that the levels of protection called for in the Sup-plier Guidelines were derived directly from INFCIRC/225/-
Revision 1 and were specifically designed to achieve levels of protection consistent with the physical protection measures in INFCIRC/225/ Revision 1.
Therefore it is the view of the Executive Branch that criterion (3) is met.
During 1975, a team of U.S.
Government experts visited Belgium and France for an exchange of views on physical security with concerned government authorities and to visit certain major government and private industry facilities at which nuclear material is processed, stored and utilized, including the Cadarache Nuclear Research Center.
The fixed site reviews included (1) security forces, (2) physical barriers, (3) detection and alarm apparatus, (4) communica-tion and response capabilities, (5) access and exit controls, (6) accountability and reporting procedures, and (7) physical security organization.
In the area of trans-portation, procedures and equipment for protecting nuclear materials while in transit were examined.
The U.S. teams judged the Belgian and French physical protection systems, procedures and equipment for transpor-tation security adequate to physically protect the mate-rial subject to this license application.
Criterion (4)
"No such materials, facilities, or sensitive nuclear technology proposed to be exported, and no special nuclear material produced through the use of such material, will be retransferred to the jurisdiction of any other nation or group of nations unless the prior approval of the United States is obtained for such retransfer.
In addition to other requirements of law, the United States may approve such retransfer only if the nation or group of nations designated to receive such retransfer agrees that it shall be subject to the conditions required by this section."
Article XI(2) of the November 8, 1958 Joint Program Agreement, as amended, which is incorporated in the Ad-ditional Agreement for Cooperation, as amended, by Article V of the latter Agreement, provides that no material (includng equipment and devices) may be transferred beyond the con-trol of the EURATOM Community, unless the United States agrees.
Article 1 bis D of the Additional Agreement for Co-operation, as amended, provides that special nuclear material produced through the use of US-supplied material may be exported to any nation outside the Community or to a group of nations, provided that such nation or group of nations has an appropriate Agreement for Cooperation with the United States or guarantees the peaceful use of the produced material under safeguards acceptable to the Community and the United States.
The European Community's interpretation of this language--as set out in an April 15 letter to the Department of State from Fernand Spaak, Head of the Delegation of the Commission of the European Communities--is that the European Community Supply Agency prior to any proposed transfer will consult with the United States to find out whether, in the view of the US, the proposed recipient of such produced special nu-clear material has an Agreement for Cooperation with the United States which is " appropriate".
During discucsions with representatives of the Community held in Washington on November 1, 1978, the Euro-pean Community confirmed that material subject to Article 1 Bis D could not be transferred outside of the Community unless the U.S.
agreed that the recipient countries or group of nations had an appropriate Agreement for Coopera-tion with the U.S. or safeguards acceptable to both parties.
Therefore it is the view of the Executive Branch that criterion (4) is met.
Criterion (5)
"No such material proposed to be exported and no special nuclear mater.a1 produced through the use of such material will be processed, and no irradiated fuel elements contain-ing such material removed from a reactor shall be altered in form or content, unless the prior approval of the United States is obtained for such reprocessing or alteration."
EURATOM is expressly exempted from Criterion (5) by virtue of Section 126 (a) 2 of the Act for a period of two years from March 10, 1978, since the Department of State notified the Nuclear Regulatory Commission on July 20, 1978, that EURATOM has agreed to negotiations with the United States as called for in Section 404 (a) of the Nuclear Non-proliferation Act of 1978.
However, this exemption in no way derogates from the rights which the United States has under the US-EURATOM Agreements for Cooperation.
Criterion (6)
"No such sensitive nuclear technology shall be exported unless the foregoing conditions shall be applied to any nuclear material or equipment which is produced or con-structed under the jurisdiction of the recipient nation or group of nations by or through the use of any such ex-ported sensitive nuclear technology."
The proposed export does not involve the transfer of sensitive nuclear technology.
Criterion (6) is, therefore, not applicable.
B.
Section 128 Criterion Section 128 a.(1) of the Atomic Energy Act establishes the following additional criterion:
"As a condition of continued United States export of source material, special nuclear material, production or utilization faciliities, and any sensitive nuclear technology to non-nuclear-weapon states, no such export shall be made unless IAEA safe-guards are maintained with respect to all peaceful nuclear activities in, under the jurisdiction of, or carried out under the control of such state at the time of the export."
As Parties to the NPT, all non-nuclear weapon states that are members of the European Atomic Energy Community have agreed to accept IAEA safeguards on all their nuclear activities.
Therefore it is the Executive Branch view that this criterion is met with respect to Belgium and the other non-nuclear weapon state menbers of the Community.
Since France and the United Kingdom are nuclear weapons states, this criterion is not applicable to them.
3.
Additional Factors A.
Safeguards Implementation The IAEA Secretariat has noted in its Special Safe-guards Implementation Report that with regard to nuclear material subject to IAEA safeguards, while some deficiencies exist in the system, no diversion of a significant quantity of nuclear material was detected in any of the 45 states in which inspections were carried out.
Although recognizing the need to correct existing deficiencies in safeguards im-plementation, the Executive Branch has no reason to believe hat the IAEA Secretariat's report is not valid.
In the light of this and other factors associate 6 with the proposed export, the Executive Branch believes the framework of com-mitments, assurances, and safeguards is adequate for the purpose of this export.
B.
Special Non-Proliferation and Other Foreign Policy Implications The Executive Branch recommendation that this li~ cense be issued is taken with full recognition of the fact that it is not current U.S. policy to export kilogram quantities of plutonium.
However, the import of the original material and the underlying transaction predate this policy by over a decade and it was therefore decided to be in the interest of equity, as well as the fact that all Community countries involved are close allies of the United States, to make an exception to current policy.
Further, the plutonium will be used in an fast breeder development facility.
In this connection, Dr. Joseph S.
Nye, Deputy to the Under Secretary of State for Security Assistance, Science and Technology, in a speech before the Uranium Institute in London on July 12, 1978, noted that, "At the same time, we have not opposed breeder reactor R&D programs because of the greater range of uncertainty surrounding estimates of their energy costs and benefits."
It should also be noted that the plutonium was not pro-duced through the use of U.S.-supplied material or facilities; our present control exists only from the fact that it was imported to the U.S.
for purposes of fabrication (an opera-tion which actually decreases the weapons utility from its original form).
Failure of the Executive Branch to recommend this export would, under the circumstances described, be considered as grossly inequitable by the importing nations and would raise both political and legal issues.
4.
Inimicality Judement Based en review of the proposed expert, it is the judg-ment of the Executive Branch that the proposed export will not be inimical to the ec=.cn defense and security, and that the license should be issued.