ML19263D896
| ML19263D896 | |
| Person / Time | |
|---|---|
| Issue date: | 01/30/1979 |
| From: | James Shea NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| To: | |
| References | |
| SECY-78-596B, NUDOCS 7904170028 | |
| Download: ML19263D896 (5) | |
Text
UNIT dD STATEt January 30, 1979 NUCLEAR REGLILATORY COMMISSION SECY-78-5963 INFORMATION REPORT For:
The Commissioners From:
James R. Shea, Director Office of International Programs Thru:
Executive Director for Operations F/
g,g 6 -
Subject:
PROPOSED LICENSE TO EXPORT LEU TO INDIA (XSNM-1222)
Purpose:
To provide the Commissioners with additional staff vi eu.
Discussion:
I indicated in SECY 78-596A that some IP staff might wish to submit additional views on this application.
Attached are the views and recommendations of Gerald G. Oplinger, Assistant Director, Export / Import and International Safeguards.
Certain portions of SECY 78-596A were classified because of references to a CONFIDENTIAL State Depart-ment letter, or because they resemble statements in SECY 78-596 which State believes should remain classified.
In order to maintain consistency of treatment with respect to public access to the staff's recommendations while this application is under consideration by the Commission, I believe that the attached views should not be placed in the Public Document Room unless a decision is made to declassify SECY 78-596A.
We have requested that the State Depart-ment reconsider their position regarding the need to classify certain portions of SECY 78-596, and are awaiting their reply.
'904U QQg
't 2
Without awaiting receipt of Department of State views, I am preparing for Commission consideration a proposed unclassified version of SECY-78-596A which will be forwarded to you as soon as possible but no later than early February 1.
N es R. Shea, Director
Contact:
ffice of International Programs G.G. Oplinger (492-7866)
DISTRIBUTION:
Commissioners Commission Staff Offices Exec. Dir. for Operations Secretariat
's PROPOSED LICEtlSE TO EXPORT LEU TO IllDIA (APPLICATI0tl XSNM-1222)
It is my opinion that the information currently available to the flRC does not adequately support a finding that Criterion 1, 2, 4 and 5 of Section 127 of the Atomic Energy Act, or their equivalent, are met. Accordingly, I recommend that the Commission refer the application to the President for further consideration.
The main outlines of my reasoning are contained in
" Draft 2" of SECY 78-596A of January 22, 1979 which was forwarded in response to Commissioner Bradford's memorandum of January 26, 1979.
I believe the Commission now has enough information to understand the arguments on both sides of most of the issues relevant to this application.
There are two inter-related questions, however, on which I would like to comment:
the question of " prospective" application of the Section 127 criteria, and how this relates to Section 128.
My observat'ons on these questions are attached.
Gerald G. Oplinger, Assistant Director Export / Import and International Safeguards, IP
PROSPECTIVE APPLICATION OF SECTION 127 CRITERIA, AND THE RELATION BETWEEf! SECTION 127 Atl0 128 0F THE ACT Any distinction between " current" and " prospective" application of the Section 127 criteria is, in my view, spurious and misleading.
In practice, the criteria must always be applied prospectively, since they are applied to proposed exports and deal with the use of those exports at some time in the future, i.e., after shipment to the recipient country.
Similarly, recipient assurances on which we normally rely in applying the criteria are, for this purpose, statements of intent with regard to the use of the proposed export after it is received.
What is really at issue here is whether, in applying the criteria,'we are to consider their prospective fulfillment only during some limited future period of time, or whether we are to look ahead as far as we can during the lifetime of the exports concerned.
In terms of XSNM-1222, tte question is whether we are to take account only of the period before March 10, 1980, (when compliance with the criteria seems likely provided exports continue) or whether we are to look beyond that date (when uncertainties arise). The Executive Branch analysis of XSNil-1222 adopts the first course, and OELD's analysis of the criteria (see attachment to SECY 78-596A, pp.
pp. 2-8) follows suit.
I can see no justification for a generic restriction of this kind in the scope of the criteria.
Certainly, from the viewcoint of achieving their objective, any cut-off is clearly undesirable, and to select a cut-off at the point where uncertainties and risks arise would make the criteria largely meaningless.
But, in India.'s case, the objectives of the criteria are not the only consideration. 0ther US interests, including other objectives of the Act itsel f, may be at stake.
The rationale advanced for limiting the time period to be considered in applying the criteria to XSNM-1222 is the argument that to do otherwise might negate the " grace period" which the Act has provided before the full-scope requirement of Section 123 becemes effective, and thus, it is argued, would impose Section 128 requirements prematurely.
There s a connection between the requirements of Sections 127 and 128 in this case, but it is external to the law.
It exists because Indian assurances relative to Section 127 are contingent upon continued US supply, which can be insured after fiarch 10, 1980 only if India meets the Section 128 full-scope safeguards requirement.
. There are at least two ways open to India to reestablish confidence about compliance with the Section 127 criteria after March 10, 1980:
to accept full-scope safeguards now, thereby removing the threat of a US cut-off, or to provide additional assurances not contingent upon continued US supply.
Tile second option does not require India to alter its present position with respect to full-scope safeguards.
The State Department believes there are compelling reasons to spare India this choice, in tha interest of er.hancing broader non-proliferation and foreign policy. objectives. The authority to do so exists, but in my view it is reserved by the Act to the president a_nd the Congress. The NRC can only determine that Section 127 is met or that it is not; the law provides
~
no authority to limit the scope of its determination in order to achieve these objectives.
erald G. Oplinger, Assistant Director Export / Import and International Safeguards, Ip
.