ML19291A165
| ML19291A165 | |
| Person / Time | |
|---|---|
| Site: | 07002766 |
| Issue date: | 12/08/1978 |
| From: | Nosenzo L STATE, DEPT. OF |
| To: | James Shea NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| Shared Package | |
| ML19291A162 | List: |
| References | |
| SECY-78-645A, NUDOCS 7904260121 | |
| Download: ML19291A165 (22) | |
Text
XbNM-1441; AbNM-14J4;
,Q 55 fjt)ETHERLANDS
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7 DEPARTMENT OF STATE
%y XSNM-1212 & XSNM-1238
. ' zWL wa:Nngton, D.C. 20520
,oa BUREAU OF OCEANS AND INTERNATIONAL X=I M M O /
ENVIRONMENTAL AND SCIENTIFIC AFFAIRS 70~ W DEC 0 8 E78 MEMORANDUM FOR JAMES R.
SEEA NUCLEAR REGULATORY COMMISSION Enclosed is an Executive Branch analysis covering a number of license applications for the export of highly enriched aranium to members of the European Atomic Energy Community (EURATOM).
In accordance with the requirenents of Section 126 a. (1) of the Atomic Energy Act, as amended, the analysis addresses the exte.t to which the specific criteria in Sections 127 and 128 are met, as well as cer-tain additional factors envisaged by Section 126 a.(1).
The Executive Branch, on the basis of its review of these applications, has concluded that the requirements of the Atomic Energy Act and P.L.95-242 have been met and it is the Executive Branch judgment that the proposed exports would not be inimical to the common defense and security of the United States.
Moreover, the members of EURATOM have adhered to-the provisions of-the-Additional-Agreement-for Cooperation, as amended.
Therefore, the Executive Branch recommends issuance of the requested export licenses.
The President has approved the enclosed HEU requesrs, all of which involve projects and facilities previously supplied by the United States with EEU.
Therefore, no new U.S. commitments to supply HEU would-be created by their ap-proval.
In general, in conformance with policy direction to minimize unirradiated inventories of HEU, the quantity under each export request is limited to that expected to be suffi-cient for not more than two and one-half years of reactor operation from the time of export, which is considered a reasonable period to allow for export, transportation and fabrication of fuel and maintenance of a fresh fuel reserve sufficient to assure the continuous and economic operation of the reactor.
/*H 1ECEiVED U,$,.NRC Louis V.
Ncrs,enzb Deputy Assistant Secretary
Enclosure:
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tp 37/ IMPORT
$'3()Mh O (M AHD l
tSii'RSAT*L SFGROS E
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XSNM-1241 Country:
Federal Republic ot Germany Transaction:
The export of 20.526 kilograms of U-235 contained in 22.0 kilo-q grams af uranium enriched to 93.3 percent U-235 in the form of U 038
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Applicant:
Transnuclear, Inc.
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Applicant Reference No:
NUK-203 77-415/01 p
Date of Application:
December 8, 1977 r
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Purpose of Export i
This highly enriched uranium in the form of U 038 Will j
be shipped to Nukem GmbH, Hanau, Federal Republic of Germany for conversion and fabrication into fuel elements for the FRJ-l research reactor owned and operated by the Kernforschungsanlage Julich (KFA).
16.5 kilograms of the highly-enriched uranium will be used for the manufacture of fuel elements for the RFJ-l and 5.5 kilograms of the material will be used for the manufacture of high temperature reactor coated particle fuel for the HTR Fuel Element Test Program being conducted by KFA.
Justification of Need for HEU at This Time The FRJ-l reactor was supplied to the FRG by the United Kingdom and went into operation in 1962.
The United States has continuously supplied the highly-enriched uranium used in its operation since that time.
Steps Taken to Determine the Possibility of Convertino the Facility to Use of Fuel of Lower Enrichment The DOE's Ergonne National Laboratory has performed an independent assessment of the need for HEU in this facility and, based on currently available information, has concluded that conversion to an intermediate (45% U-235) enrichment might be possible using currently available fuel fabrication technology.
However, there currently is no commercial fabri-cator of plate-type research reactor fuel containing less than 93% U-235.
Furthermore, such fuels fabricated with current technology, but utilizing less than 93% U-235 have not been demonstrated.
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EUROPEAN COMMUNITY (EURATOM) EXPORT LICENSE APPLICATION ANALYSIS 1.
Applicable Agreement for Cooperation The material covered by the export license applica-tion is subject to all of the terms and conditions of the Additional Agreement for Cooperation Between the United States and the European Atomic Energy Commission (EURATOM),
as amended.
This fact has been confirmed by letter from the Delegaton of the Commission of the European Communities, a copy of which follows the description of the transaction.
The Additional Agreement entered into force on July 25, 1960.
The European Atomic Energy Community has adhered to all provisions of this agreement with the United States..
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DELEGATION OF THE COMMISSION OF THE JUROPEAN C'vMMUNITIES -'
December 2f,.=1C=3.iE0 r
19 7,0 JM/MC 978 DEC I,1 FM 4 5s Mr. Vance H. Hudgins EXFCRT/ IMPORT Assistant Director for Politico-Military Security Affairs IHTERNTkSFGROS Division of International Security Affairs DOE Washington, D.C.
20545 Subie'ct:
XSNM!1241 - Si879 - Transnuclear Application #
NUK-203 77-415/01 dated December 8, 1977 for
., West Germany I
Dear Mr. Hudgins:
We certify that the material mentioned in this application,'
namely 20.526 Kg of U-235 contained in 22.0 Kg of U and the transfer of this material will be subject to all terms and conditions of the Additional Agreement for Cooperation.
Further we certify that-Nukem GmbH7 -Hanau,-West Germany 3 --- - -
Hobeg GmbH, Hanau, West Germany, and Transnuklear GmbH, Hanau, West Germany, as intermediate consignees, and KFA Kernforschungsanlage Julich GmbH, West Germany,. as ultimate consignee, are authorized to receive and possess this mate. rial pursuant to the aforementioned Agreement for Cooperation.
This material will be used in the KFA facilities as per attached end-use statement.
Sincerely yours, da u
& F. SPAAK Head cf Delegation cc: Ms. Vicki Matson Ms. Janice Dunn Mr. William Moffitt, State Dept.
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i 7100 M Street NW Suite 707 Wastuncton DC ZCc7 / te6eonone:(2021572-8350 / teles: Washington COMEUR 24455
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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 cf source material, special nuclear material, production or utilization facilities, and any sensitive nuclear technology:
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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 igreement for Cooperation, and to any special nuclear mater'.al used in or produced through the use thereof."
The Federal Republic of Germany, 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 Nuclear Weapons (NPT).
Each of those seven states (Belgium, De nmark, the Federal Republic of Germany, Ireland, Italy, Luxembourg and The Netherlands) thus undertook the obligation in Article III(1) of the NPT to accept _ safeguards ofetheaIAEA+on-allvnuclear; material- - -
in all of its peaceful nuclear activities and to enter into an agreement with IAEA to that effect.
As permitted by Article III('4) of the NPT, those seven statec 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.
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s tice, the Subsidiary Arrangements consist of a general part and, for each of the facilities 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 its 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 achieve 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-
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ence must be relied upon.
In the non-nuclear weapon member states of-EURATOM, all f acilities with -the ex-c.eption 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 to the NPT, has fulfilled its obligation under Article III(l) of 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.
Prior to the coming into force of the IAEA's agree-ment with EURATOM and its member non-nuclear weapon states and the implementation by IAEA of that agreement, the US continued to export enriched uranium and other items to the non-nuclear-weapon member states of EURATOM, notwith-standing the obligation undertaken by the US in Article III(2) of the NPT to do so only if the source or special fissionable material processed used or produced shall be subject to.IAEA_ safeguards. _The United States did so-on the basis of a " rule of reason", which took into account the cir-cumstance that those states were NPT signatories and were conducting negotiations with IAEA of a safeguards agree-ment in accordance with Article III(l) of the NPT.
The ap-plication of EURATOM's safeguards within the territories of those ' states was also taken into account.
More recently, the entry into force of the IAEA/ EURATOM safeguards agree-ment, the progressive completion of' facility attachments, and the increasing application of ad hoc IAEA inspections as the Agency made resources available to implement the verification agreement, combined with the continued ap-plication of EURATOM safeguards in all facilities, allowed i
the Executive Branch to adopt the view that the equivalent l
of criterion (1) was 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 states will not be inimical to the common defense and security.
As a nuclear-weapons-state (NWS), France is not sub-ject to IAEA safeguards as required by Article III(2)
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of the Treaty.
Therefore, it is the Executive Branch l
view that criterion (1) is met with respect to this ex-port to France.
l This does not mean, however, that the material proposed for export will not be subject to safeguards while in France.
Under Article V of the Additional Agreement for Cooperation of 1960, as amended, which incorporates Article XI, XII and Annex B of the November 8, 1958 Joint Program Agreement, as amended, the Community undertakes the responsibility of estab-lishing and implementing a safeguards and control system designed to give maximum assurance that any mater!al supplied by the US or generated from such supply will be used solely for peaceful purposes
(" EURATOM Safeguards System").
The Community is bound to consult and exchange experiences with the IAEA with the objective of establishing a system reasonably com-patible with that of the latter.
The Community is responsible for establishing and maintaining a mutually (with respect to the US) satisfactory and effective safeguards and controls system in accordance with stated principles.
~~' ' EURATOM safeguards are being applied to material 7
and facilities previously exported-and subject to the-US-EURATOM Cooperation. Agreemants and to_ special - nu --
clear 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 export and special nuclear 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.
i 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.
This language is somewhat different from the U.S. and U.K.
" Voluntary Offers,"
under which such safeguards will apply on all nuclear facilities, excluding only those facilities associated with activities with direct national security signifi-cance.
However, a French official has indicated that, in principle, the French offer is no more limited than that of the U.K.
and the U.S. but that, in practice, a higher proportion of material in France may be excluded
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because of its proportionately larger number of facil-ities which process materials for both military and c1vil use.
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t 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 tech-nology, 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, facilities and sensitive nuclear technology previously exported 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 there-of.
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 Community.
With regard to thAtwo. nuclear-weapons =_sta tesdNNS.)_2_2 of the Community, the UK and France, the proposed export and any special nuclear material produced through its use, if transferred to a NWS member, is subject to the continuing applicability of the US-EURATOM Agreements for Cooperation.
Article XI(1) and (3) of the November 8, 1958 Joint Program Agreement,' as amended, which is incorporated into the Ad-ditional Agreement for Cooperation by virtue of Article V of the Additional Agreement, provide that "no material, in-cluding equipment and devices, transferred pursuant to this Agreemen t" and "no source or special nuclear material l
utilized in, recovered from, or produced as a result of the I
use of material, equipment or devices transferred pursuant to this agreement...will be used for atomic weapons, or for research or development 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 explicitly excluding uses which would result in any nuclear explosive
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_ device" (underlinin IAEA to this effer*g supplied)
This undertaking,and have each notified the nations equate any nuclear explosive device, function, as essentially equivalent to an "atomi ess of c weapon".
Therefore, equivalent of criterion (2)it is the Executive Branch view that th is met with respect to NWS of the Community.
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Criterion (3)
" Adequate physical security measures will be maintained with respect to such material or facilities proposed to be exported and to any special nuclear material used in or pro-duced through the use thereof.
Following.the effective ~
date of any regulation promulgated by the Comraission 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 applicable 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 recommended 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 detailed in trans-missions of the Nuclear Suppliers Guidelines to the IAEA.
The French Minis trycofa ForeignM6f airs 7by 3 note'-dated --" ' ' ~
September 11, 1978 delivered to U.S.
Dmbassy, Paris, provided 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 installations imported from the United States as well as all nuclear material used or produced by use of such material and installations.
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"The French Government can equally confirm that the same level of protection is assured for material and installations 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 Commission under Part 110.43, pursuant to Section 304(d) of the Nuclear Non-Proliferation -Act of 1978, in that the-levels of pro-tection called for in the supplier 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.
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'ihe Community provided on September 29, 1978 the following note.to the U.S. Mission to the Community in Brussels:
"The Commission of the European Communities presents its compliments 'to the United States Mission to the European Communities and has the honour to refer to the Aide-Memoire of the United States Mission to the European Communities of July 28, 1978, on criteria for levels of physical protection.
"The commission confirms that, in accordance with the relevant national provisions of the host countries, physical security measures providing as a minimum a level of pro-tection comparable to that set forth in IAEA document INFCIRC/225/Rev. 1 will be maintained with respect to nuclear materials and facilities exported to the Com-munity's joint research centres from the United States and with respect to nuclear material used in or produced through the use of such material and facilities."
I As reportd to the Commission by Department of State letter dated October 26, 1978, the Government of the Federal Republic of Germany on October 17, 1978 provided the follow-ing generic assurance in the form of an Aide Memoire to the U.S.
Embassy at Bonn:
"The Federal Government confirms it will -- as in the
- -past - -protect all-deliveries - of nuelear materials and--
installations supplied by the United States as well as all materials which are utilized or produced in connection with the exploitation of these materials or installations by physical safeguarding standards at least equalling those published in IAEA INFCIRC/254.
This physical safeguarding will be carried out pursuant to the London guidelines."
As the levels of protection called for in the Supplier Guidelines were derived directly from INFCIRC/225/ Revision 1 and were specifically designed to achieve levels of pro-tection consistent with the physical protection measures in INFCIRC/225/ Revision 1, it is the judgment of the Executive Branch that this assurance meets the requirements set forth by the Commission under 10 CFR Section 110.43, established pursuant to Section 304(d) of the Nuclear Non-Proliferation Act of 1978.
Therefore it is the view of the Executive Branch that criterion (3) is met.
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t During May 1975, a team of U.S. Government experts visited the FRG for an exchange of_ views on. physical security, including visits to those facilities at which the highly enriched uranium requested in this license ap-plication is to be processed, stored and utilized.
The i
fixed site reviews included:
-(1)- security forces,- (2) -
barriers, (3) detection and alarm apparatus, (4) communi-cation 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 nu-clear materials while in transit were examined.
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team judged the FRG's physical protection system, procedures and equipment for transportation security adequate to physically protect the material at fixed sites, in transit and the material requested in this license ap-plication.
Subsequent to the U.S team visit, in May 1975 FRG tech-nical personnel met in the United States with U.S. Govern-ment representatives (including those of the NRC).
At this time,. views were exchanged on technical aspects of the re-spective physical security systems of the two countries, both as they now exist and with regard to future plans including physical security research and development.
This exchange provided significant and valuablu -insights--into the"FRG's physical security program.
During both of these exchanges, German authorities stated that their physical security program will be kept in force and. described long-term plans and development work to improve its effectiveness.
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During May 1975, a team of U.S.
Government experts visited the Netherlands for an exchange of views on physical security, including visits to those facilities at which this highly enriched uranium will be processed, stored and utilized.
The fixed site reviews included:
(1) security forces, (2) physical.-barriers,. (3) detection and alarm ap...
paratus, (4) communication and response capabilities, (5) access and exit controls, (6) accountability and reporting procedures, and (7) physical security organization.
In the area of transportation, procedures and equipment ~
for protecting nuclear materials while in transit were examined.
The team judged the Netherlands' physical protection system equipment and procedures for the fixed site facilities, and the procedures and equipment for transportation security adequate to physically protect the material at the facilities, in transit and the material requested in this license applica-tion.
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The U.S. Government has thoroughly familiarized itself with the physical security arrangements which will be in effect within France during the period of use of the U.S.-
supplied highly enriched uranium to assure that they are adequate to deal with threats of subnational diversion.
During 1975, a team of U.S. Government experts visited France for exchanges of views on physical security.
The organizational structures and national regulations of France, as they relate to the physical security of significant quantities of nuclear weapons material, were thoroughly re-viewed.
Visits were made to a number of major governmental and industrial sites handling such materials.
The U.S.
team i
visited the Cadarache Nuclear Research Center and the Marcoule Reactor Facility.
In April 1977 the CERCA fabrica-ting facility was revisited by a U.S. representative for review of all physical security measures.
On the basis of these vists, and other exchanges of information regarding physical security at French reactor facilities, the U.S.
team concluded that the French physical security program was adequate to deter, prevent or respond to potantial attempts to divert material subject to this license application.
Officials of France have clearly stated their intention to keep a -vigorous physical security: program = ineforce-and ' ton - "~ -
make it more effective through ongoing research and develop-ment efforts.
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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 I
-retransferred to the jurisdiction of any other ation_or group of nations unless the prior approval of sae 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 de-signated 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 (in-cluding equipment and devices) may be transferred beyond the control 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 mate-rial 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 Com-munity 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 U.S.,
the proposed recipient of such produced special nuclear
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material has an Agreement for Cooperation with the United States which is " appropriate".
During discussions with representatives of the Community held in Washington on November 1, 1978, the European Com-munity 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 Cooperation with the U.S.
or safeguards acceptable to both parties.
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herefore, it is the Executive Branch view that, with l
regard to the proposed export..and.special nuclear material I
produced through its use, criterion (4) is met.*
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With respect to transfers within the Community, it should be noted that the use of the words " group of nations" in criterion (4) makes clear that no retransfer consent right is required within a group of nations under this criteria.
With respect to this provision, the Senate report states:
"It should be noted that under the US-EURATOM Agreements, the US does have a right of prior approval on retransfers of certain material outside of the EURATOM Community.
It should also be noted that paragraph 4 does not require prior approval with respect to trans-fers within the EURATOM Community, con-sistent with US policy of treating that Community as a (single) entity."
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The Congressional intent not to require US consent rights for transfers within the Community is also clear in Section 123 a.(5) of the Atomic Energy Act, as amended, since it re-quires that the US seek a guarantee "by the cooperating party" (which in this case is EURATOM ~as~awhole).
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It should be noted that since the US-EURATOM Agreements for Cooperation were authorized in accordance with Section 124 of the Atomic Energy Act, the Commission may continue to issue export licenses until March 10, 1980 pursuant to the authority in the first proviso in Section 126a(2), even if criterion (4) were not met.
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Criterion (5)
"No such material proposed to be exported and no special nuclear material produced through the use of such material will be processed, and no irradiated fuel elements containing 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
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virtue of Section 126(a) 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.
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'q bI criterion (6) f.
"No such sensitive nuclear technology shall be ex-ported unless the foregoing conditions shall be applied to any nuclear material-or equipment which-is produced --
or constructed under the jurisdiction of the recipient nation or group of nations by or through the use of any such exported sensitive nuclear technology."
The proposed exports do not involve the transfer of sensitive nuclear technology.
Criterion (6) is, there-fore, not applicable.
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Section 128 Criterion Section 128 a.(1) of the Atomic Energy Act estab-i lishes the following additional criterion:
"As a con-dition of continued United States export of source ma terial, special. nuclear. material,_productionar_utiliza ---- -
tion facilities, and any sensitive nuclear technology to non-nuclear-weapon states, no such export shall be made unless IAEA safeguards 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."
It should be noted that this criterion only applies to exports to take place after March 10, 1980 or pursuant to an application submitted after September 10, 1979.
We anticipate that the recommended exports will occur before March 10, 1980.
In any case, as Parties to the NPT, all non-nuclear-weapon states that are members of the European Atomic Energy Community have agreed to accept IAEA safe-guards on all their nuclear activities.
Therefore it is the Executive Branch view that this criterion is met with respect to the non-nuclear-weapon member states of the European Community.
As France rand. the Uni.ted Ringdomc arecnuclear.. weapons t a tr - -
states, this criterion is not applicable to them.
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I 3.
Additional Factors A.
Safeguards' Implementation
~
The IAEA Secretariat has noted in its Special Safe-9aards Implementation Report that with regard to nuclear material subject to IAEA safeguards, while some de-ficiencies exist in the system, no diversion of a signifi-cant 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 de-ficiencies in safeguards implementation, the Executive Branch has no reason to believe that the IAEA Secretariat's report is not valid.
In the light of this and other factors associated with the proposed export, the Executive Branch believes the framework of commitments, assurances, and safeguards is adequate for the purpose of this export.
B.
Special Non-Pro 5iferation and Other Foreign Policy considerations
'None.
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, s.dum egeme umg.us
).
4.
Inimicality Judo _ ment Based on review of the proposed exports, it is the judgment of the Executive Branch that the proposed exports will not be inimical to the common. defense-and security, and that the licenses should be issued.
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APPENDIX C
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