ML19296C996
| ML19296C996 | |
| Person / Time | |
|---|---|
| Issue date: | 04/20/1979 |
| From: | NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| To: | |
| Shared Package | |
| ML19296C882 | List:
|
| References | |
| REF-10CFR9.7 SECY-79-283, NUDOCS 8002290192 | |
| Download: ML19296C996 (10) | |
Text
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Enclosure D STAFF ANALYSIS UNDER SECTIONS 127 AND 128 0F THE ATOMIC ENERGY ACT OF 1954, AS AMENDED Subsection 126.a.(1) of the Atomic Energy Act of 1954, as amended (the Act) provides, in pertinent part, that no license for the export of source material or special nuclear material may be issued by the Comission until the Commission has been notified that it is the judgment of the executive branch that the proposed export will not be inimical to the common defense and security, or that an export in the category to which the proposed export belongs would not be inimical to the common defense and security because it lacks significance for nuclear explosive purposes.
However, that subsection also provides that the Secretary of State shall specifically address the extent to which the export criteria then in effect are met.
Further, subsection 126a.(2) of the Act requires, among other things, that "No license may be issued.... until.... the Commission finds.... that the criteria in section 127 of this Act or their equivalent are me t. " The applicable criteria in section 127, which govern " exports for peaceful nuclear uses" of source and special nuclear material, production or utilization facilities and sensitive nuclear technology only, are as follows:
(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 applicable agreement for cooperation, and to any special nuclear material used in or produced through the use thereof.
(2) No such material, facilities, or sensitive nuclear tech-nology 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 8002290t research on or development of any nuclear explosive device.
. (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 regulations 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 applicable regulations.
(4) No such materials, facilities, or sensitive nuclear technology proposed to be exported, and no special nuclear material produced through the use of 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.
(5) No such material proposed to be exported and no special nuclear material produced through the use of such material will be reprocessed, and no irradiated fuel elements con-taining su:h 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.
(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 exported sensitive nuclear technology.
The State Department has advised that the Executive Branch believes that materials covered by the general license belong to a category which would not be inimical to the common defense and security because the category lacks significance for nuclear explosive purposes.
State also advises that in the Executive Branch's view, the law does not require a finding that the exports would meet section 127 criteria.
. Most, but not all of the general licenses for special nuclear material and source material in 96110.22 and 110.23 would permit export of nuclear material for non-nuclear end uses, which are not required to meet section 127 criteria. However, other exports would be for peaceful nuclear uses and thus subject to any requirement that they meet the criteria or their equivalent.
The criteria in section 127 seem inappropriate for application to general licenses for export, particularly since general licenses are ordinarily not restricted to particular countries.
It appears that the failure of the Congress specifically +.o except general licenses from the criteria of section 127 was inadvertent. There is na reference to or discussion of the applicability of the criteria to general licenses in the legislative history of the NNPA.
Further, 9110.23 presently provides general licenses for export of source material. When new Part 110 containing that section was promulgated in May,1978, copies were sent to cognizant Congressional committees, who made no comment although the notice of rule making contained no analysis of the general licenses in tems of the criteria. On the other hand, section 109 of the Act, which sets out criteria for export of components which track three of the section 127 criteria, explicitly subjects general licenses to those criteria.
In any event, the following analysis indicates that exports of source material and special nuclear material under the new general licenses would meet the section 127 criteria or their equivalent:
. 1.
The equivalent of criterion (1) is met since the IAEA in safeguards agreements under both INFCIRC/66/Rev. 2 and INFCIRC/153 authorizes the exemption from safeguards of the minor quantities of material covered by the new general licenses.
2.
The equivalent of criterion (2) is met since the quantities and forms of material that could be exported under the new general licenses cannot be utilized for any significant nuclear explosive related activity.
3.
Criterion (3) is met since the small quantities of material under the new general licenses are not sub-ject to the physical security measures of 1110.43, the required level of protection adopted by the Commission in 10 CFR Part 110 pursuant to section 127 of the Act.
4.
Criterion (4) is met since the general licenses themselves constitute the required prior U.S. approval for retransfer.
5.
The equivalent of criterion (5) is met since the quantities and forms of material that could be exported under the new general licenses are not suitable for any reprocessing related activities.
6.
Criterion (6) is not applicable.
. Section 128 of the Act specifies an additional criterion as follows:
- a. (1) As a condition of continued United States export of source material, special nuclear material, production or utilization facilities, and any sensitive nuclear technology to non-nuclear-weapon states, no such export shall be made unless IAEA safeguards are ointained with respect to all peaceful nucle-activities in, under the jurisdiction of, or carried out under the control of such state at the time of the export.
However, subsection b. of section 128 provides, in pertinent part:
- b. The criterion set forth in subsection a. shall be applied as an export criterion with respect to any application for the export of materials, facilities, or technology specified in subsection
- a. which is filed after eighteen months from the date of enactment of this section, or for any such application under which the first export would occur at least twenty-four months after the date of enactment of this section, except as pro-vided in the following paragraphs:
Since a general license does not require an application, it may' be concluded that section 128 was not intended to apply to general licenses.
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Enclosure F_
DRAFT 2 The Honorable John H. Glenn Chairman, Subcommittee on Energy, Nuclear Proliferation and Federal Serv. ices Committee on Governmental Affairt United States Senate
Dear Mr. Chairman:
I am pleased to forward, for the information'of the Subcommittee on Energy, Nuclear Proliferation and Federal Service's Committee on Govern-mental Affairs, copies of a notice of rule making amending the Commis-sion's regulations in 10 CFR Part 110 pertaining to the licensing of nuclear exports and of a public announcement which will be released shortly.
The notice of rule making is being transmitted to the Office of the Federal Register fGr publication.
The amendments simplify licensing requirements for the export of certain quantities of nuclear material which do not have significance from a nuclear prol'iferation perspective by establishing or expanding general licenses for gram quantities of special nuclear material (SNM) and certain kinds of source and byproduct material.
In addition, authority is pro-vided for the issuance of specific licenses to export plutonium-238, up to 3 grams of any other SNM and 100 grams or less of SNM diluted so that it is no longer usable for any nuclear activity relevant from the safeguards standpoint and is practically irrecoverable, without the need to bring such exports under an agreement for cooperation with another nation.
The Honorable John H. Glenn 2
A notice of proposed rule making was published in the Federal Register on May 9, 1978.
Some changes were made to reflect the comments received on the proposed amendments.
As a result of objection to the proposed dele-tion of the existing general license for americium-241, the Commission has left that general license unchanged; it will consider changes to that general license in a separate rule making proceeding.
The Executive Branch has concurred in the amendments.
The Commission has concluded that the amendments are not inimical to the common defense and security, do not constitute an unreasonable risk to the public health and safety, and will not result in any activity that adversely affects the environment.
The arendments are consistent with the provisions of the Atomic Energy Act of 1954, as amended by the Nuclear Nonproliferation Act of 1978, and do not conflict with the safeguards criteria of the Inter-national Atomic Energy Agency.
The amendments are not inconsistent with the obligations of the United States under any treaty or international arrangement, including the Treaty on the Non-Proliferation of Nuclear Weapons.
Sincerely, Lee V. Gossick Executive Director for Operations
Enclosures:
1.
Notice of Rule Making 2.
Public Announcement
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