ML20045G605
| ML20045G605 | |
| Person / Time | |
|---|---|
| Issue date: | 07/08/1993 |
| From: | Stoiber C NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| To: | |
| References | |
| SECY-93-188, NUDOCS 9307140189 | |
| Download: ML20045G605 (22) | |
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POLICY ISSUE (NEGATIVE CONSENT)
July 8, 1993 SEcY-93-188 For:
The Commissioners From:
Carlton R. Stolber, Director Office of International Programs Sub_iect:
PROPOSED RETRANSFER OF SPENT FUEL FROM SWITZERLAND TO THE UNITED KINGDOM FOR REPROCESSING
Purpose:
To inform the Commission of the staff's intention to send a letter to the Department of Energy (DOE) indicating no objection to a proposed retransfer of spent fuel from Switzerland to the United Kingdom for reprocessing.
Discussion:
The Department of Energy (DOE) has asked for our views on the attached request involving the retransfer of 112 spent fuel assemblies from Switzerland's Beznau reactors to British Nuclear fuels for reprocessing and storage. Any future use of the recovered uranium and plutonium will be subject to prior U.S. government consent. The assemblies contain 34,701 kilograms of uranium, enriched to 0.86 percent, and 421 kilograms of plutonium. The request falls within the category of retransfers which the Commission, by Staff Requirements Memorandum of June 30, 1992, authorized the staff to process using negative consent SECY papers (SECY-92-204, dated June 3. 1992).
The staff believes that the proposed retransfer meets all statutory requirements, is consistent with U.S. policy, and would not be inimical to U.S. common defense and security. This case involves no material changes in circumstances from those existing for the last eimilar retransfer from Switzerlar.d to the U.K. (or France) for reproce:..ing, for which NRC indicated no objection. Accordingly, the staff finds no basis for NRC to object to the request.
EDO concurs and OGC has no legal objection.
NOTE:
TO BE MADE PUBLICLY AVAILABLE WHEN THE FINAL SRM IS MADE AVAILABLE
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Contact:
E. Hemby, 0IP 504-2341 n
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July 8,1993 The Comissioners 2
Recommendation:
That the Commission note that it is the staff's intention to send a letter to DOE indicating no objection to the transfer. The letter will be sent 10 days from the date of this paper unless instructed otherwise by the Co::rnission.
m' arlton R. Stoiber, Director
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ffice of International Programs
Attachment:
DOE ltr w/ encl fm Efei to RHauber dtd 6/22/93 SECY NOTE:
In the absence of instructions to the contrary, SECY will notify the staff on Thursday, July 22, 1993, that the Cc=ission, by negative consent, assents to the action proposed in this paper.
DISTRIBUTION:
Co: nissioners OGC OCAA OIG OPA IP l
EDO SECY
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Department of Energy g
g washington. DC 20585 JUN 2 21993 MEMORANDUM TO:
Mr. William Clements, Director Office of Technology and Policy Analysis Department of Commerce OTPA Room 4069A E_
Washington, D.C.
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Defense Nuclear Agency T ;-
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Attn: Maj. Thomas S. Chivers 2
E Ui Mr. Robin DeLaBarre
-a OES/NEC Department of State Washington, D.C.
20520 Mr. Michael D. Rosenthal U.S. Arms Control & Disarmament Agency NWC/INA, Room 4678 Washington, D.C.
20451
/ Mr. Ronald D. Hauber Office of International Programs Nuclear Regulatory Commission Washington, D.C.
20555
SUBJECT:
Request for Subsequent Arrangements Under the NNPA of 1978 Enclosed for your review is a draft Federal Register notice concerning a proposed subsequent arrangement, as well as an analysis and a copy of the incoming request. We would appreciate your comments within 20 days.
RTD/EU(SD)-79 f f lg Edward. Fei Acting Director Office of Nonproliferation Policy Office of Arms Control and Nonproliferation e
DEPARTMENT OF ENERGY Office of Anns Contro! and Nonproliferation PROPOSED SUBSEQUENT ARRANGEMENT Pursuant to Section 131 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2160), notice is hereby civen of a proposed subsequent arrangement" under the Additional Agreement for Cooperation Between the Government of the United States of America and the European Ateinic Energy Community (EURATOM) Concerning Peaceful Uses of Atomic Energy, as amended, and the Agreement for Cooperation Between the Government of the United States of America and the Government of Switzerland Concerning Civil Uses of Atomic Energy, as amended.
The subsequent arrangement would give approval, which must be obtained under the above-mentioned agreements, for the following transfer of special nuclear materials of United States origin, or of special nuclear materials produced through the use of materials of United States origin, as follows:
Switzerland to the United Kingdom for the purpose of reprocessing 112 irradiated fuel assemblies containing approximately 34,701 kilograms of uranium and containing 298 kilograms of the isotope uranium-235 (enriched to approximately 0.86%), and 421 kilograms of plutonium from the Beznau nuclear power station.
This subsequent arrangement is designated as RTD/EU(SD)-79.
F The United States has received assurance from the Government of Switzerland that the recovered uranium and plutonium will be stored in the United Kingdom, and will not be transferred from tbt %\\ed L@,- P# hf 5")
without the prior consent of the United States Government.
t In accordance with Section 131 of the Atomic Energy Act of 1954, as amended, it has been determined that this subsequent arrangement will not be j
inimical to the common defense and security.
i This subsequent arrangement will take effect no sooner than fifteen days J
after the date of publication of this notice and after fifteen days of f
1 continuous session of the Congress, beginning the day after the date on which the reports required by section 131(b)(1) of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2160), are submitted to the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate. The two time periods referred to above shall run concurrently.
Issued in Washingten D.C. on Edward T. Fei Acting Director Of fice of Nonproliferation Policy Office of Arms Control and Nonproliferation
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ANALYSIS OF RETRANSFER OF SPECIAL NUCLEAR MATERIAL Prepared by i
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a Office of Nonproliferation Policy i
Office of Arms Control and Nonproliferation l
Office of Intelligence and National Security United States Department of Energy f
1 Proposed Transferor:
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2 Nordostschweizerisch^ Kraftwerk AG j
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Proposed Transferee:
The Government of the United Kingdom on behalf of the EURATOM Supply Agency j
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Oricin of the enriched uraniur:
1 United States Department of Energy Contract AT(49-14)UES/SD/l 1
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TABLE OF CONTENTS Page i
i 1.
INTRODUCTION 1
i II.
SYNOPSIS OF THE PROPOSED RETRANSFER 1
I 111.
POLICY OF THE EXECUTIVE BRANCH 1
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IV.
EVALUATl0N OF THE PROPOSED RETRANSFER 2
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V.
CONCLUSION 3
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i Annex A: MB-F10 Request for Approval l
Annex B: Section 127 and 128 of the Atomic Energy Act of 1954, as an. ended j
Annex C:
Section 131 of the Atomic Energy Act of 1954, as amended l
4 Annex D:
Safeguards leplementation j
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1.
INTRODUCTION The Department of Energy (DOE) has received a request from the Government of Switzerland that the United States approve the retransfer of U.S.-origin spent fuel assemblies from the nuclear power plants Beznau I or 11 in Switzerland to the United Kingdom for raprocessing and storage of the separated uranium and i
i The proposed retransfer is a " subsequent arrangement" as defined in section 131a(2) of the Atomic Energy Act of 1954, as amended. As required by section 131a(1), the proposed retransfer will be analyzed herein to determine whether the arrangement will be " inimical to the common defense and security " It will also be analyzed with regard to other relevant provisions of the Atomic 1
Energy Act of 1954, as amended.
11.
SYNOPSIS OF THE PROPOSED RETRANSFER s
The following materials are included in the proposed retransfer of spent i
nuclear fuel:
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From Nordostschweizerische Kraftwerk AG, Beznau I or 11
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Fuel Type and Quality 112 PWR Assemblies Total U 34,701 Kgs 1
U-235 298 Kgs
]
U-235 Isotope Content 0.86 %
Produced Pu 421 Kgs j
Shipping Dates January 1994 - December 1995
)
The utility proposes that the irradiated fuel assemblies, now at the reactor j
site in Switzerland, be transferred to British Nuclear fuels, plc. in the United Kingdom for chemical reprocessing and recovery of uranium and 1
pluton %m.
The recovered uranium and plutonium will be retained by British Nuclear Fuels, plc. at its plant.
In accordance with arrangements with j
Switzerland, any future transfer or use of the recovered uranium and plutonium will be subject to the prior consent of the U.S. Government.
I 111. POLICY OF THE EXECUTIVE BRANCH l
The policy of the United States on nonproliferation of nuclear explosives was l
outlined by President Reagan in his statement of July 16, 1981.
President
^
Reagan made some statements which are pertinent to the consideration of this i
retransfer.
In particular, he stated that:
i We must re-establish this nation as a predictable and reliable partner for peaceful nuclear cooperation under adequate f
safeguards. This is essential to our non-proliferation goals.
If we are not such a partner, other countries will tend to go their own ways and our influence will diminish. This will reduce our i
effectiveness in gaining the support we need to deal with proliferation problems.
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o Instructing the Executive Branch agencies to undertake immediate efforts to ensure expeditious action on export requests ar.d approval requests under agreements for peaceful nuclear cooperation when necessary statutory requirements are met.
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Requesting that the Nuclear Regulatory Commission act i
expeditiously on these matters.
The Administration will also not inhibit or setback civil reprocessing and breeder tractor developments abroad in nations i
with advanced nuclear power programs where it does not constitute a proliferation risk.
l Also, the Executive Branch has advised interested countries that it would expect to give favorable and prompt consideration to requests of the nature of l
the pending Swiss retransfer to the United Kingdom when the necessary j
l statutory requirements are met.
IV.
EVALUAT10f4 0F THE PROPOSED RETRAf4SFER The proposed retransfer has been reviewed to determine whether it satisfies the statutory criteria in sections 127 and 128 of the Atomic Energy Act of l
l 1954, as amended, and we conclude that the criteria are satisfied.
(See P nex l
B) 1 As required by section 131 of the Atomic Energy Act, with the concurrence of the Department of State, and in consultation with the Arms Control and i
Disarma'nent Agency, the Nuclear Regulatory Commission, and the Departments of Commerce and Defense, the Department of Energy has considered whether the proposed retransfer will result in significant increase of the risk of proliferation beyond that which existed at the time that approval was requested and has considered whether there would be timely warning "of any diversion well in advance of the time at which the non-nuclear-weapon state could transform the diverted material into a nuclear explosive device."
Together with the Department of State, we have concluded that, taking into account the non-proliferation commitments of the countries involved, where the reprocessing will occur, and the fact that the derived plutonium may not be used or retransferred by the United Kingdom to Switzerland or any other state without explicit U.S. consent, this approval will not result in a significant increase of the risk of proliferation.
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More specifically, and with regard to the question of proliferation risk, the plutonium separated in the reprocessing facility will remain in the United Kingdom until it is disposed of in accordance with terms that are acceptable to the United States.
In cases such as this, the United States has been l
controlling retransfers within the European Community of separated special i
nuclear material by a commitment from the non-EURATOM shipping country that:
o The spent fuel will be retained by the reprocessor until it may be reprocessed and that, thereafter, the recovered special nuclear material will be retained by the reprocessor subject to the direction of the shipper.
o Any direction by the shipper to the reprocessor for the l
transfer or use of the recovered special nuclear material will be subject to the prior approval of the United States.
In the subject case. Switzerland has assured the United States that it agrees to the above conditions.
In addition to the above-mentioned commitments by Switzerland, under the terms cf the U.S.-EURATOM Agreement for Cooperation, the prior approval of the l
United States would be required for any transfer of the produced material to a country outside EURATOM. Such a transfer would constitute a new subsequent arrangement pursuant to section 131 of the Atomic Energy Act and, as such, would have to be considered on its own merits. Moreover, such approval will i
only be granted under terms consistent with the provisions of the Act, includina section 131.
Further, a number of other f actors were considered in this case that are relevant to the judgnent that the proposed retransfer will not result in a significant increase ir, the risk of proliferation. The United Kingdom has evidenced a cooperative attitude in fostering non-proliferation objectives.
For example, it supports International Atomic Energy Agency safeguards, and adheres to the Nuclear Supplier's Guidelines, and is a party to the Treaty on the Non-proliferation of Nuclear Weapons.
Switzerland is a member of the IAEA, is a party to the NPT, adheres to the Nuclear Supplier's Guidelines, and has been cooperative on non-proliferation issues.
V.
CONCLUSION The Department of Energy has consulted with the DOS on the non-proliferation aspects of this retransfer. The Department of State concurs that U.S. non-proliferation objectives would best be fostered by approving the proposed retransfer.
In summary, it is our view that the terms of the proposed subsequent arrangement satisfy the requirements set forth in sections 127, 128, and 131 of the Atomic Energy Act of 1954, as amended, and will not result in a j
significant increase in the risk of proliferation.
Further detailed discussion of these requirements may be found in Annexes B through D of this analysis.
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Accordingly, based on the various f actors set forth in this analysis, it is the judgment of the Department of Energy with the concurrence of the Department of State and following consultations with the Arms Control and Disarmament Agency (the Arms Control and Disarmament Agency does not intend to prepare a Nuclear Proliferation Assessment Statement with regard to this case), the Nuclear Regulatory Commission, and the Department of Defense, and the Department of Commerce that the proposed " subsequent arrangement" will not i
be inimical to the common defense and security.
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Nu:tberWO/EJJ0*D$ $
MSM10 AG/2652 AFPROVAL FOR RETRANSTER OF SPECIAL NUCLEAR MATERI AL GF UNITED STATES ORIGIN The approval of the United States Department of Energy is hereby requested to the transfer from Swiss Federal Government (for Nordostschweizerische Kraktwerke : NP P Beznau Il (Transferor) to Euratom Nuclear Fuel Supply Agency (BNFL Reprocessing Plant, UK)
(Transferee) of United States supplied special nuclear caterial in the quantity and neeting the specifications described below (hereinaf ter called "specified i
naterial") which the transferor obtained pursuant to its Agreement for Coopera tion f or Civil Uses with the United States Government. Material was criginally cbtained by transf eror from USAEC under Contract Number AT( 4 9-14 )CES /sd /1 and Export License Numbcr SPDCIFIED MATERI AL (Fill in where applicable)
Identificaticn
- a r ki n g,
- sotepic Percent i
Fuel Tsne No.,
etc.
(In Gra s) cr Po (in Grans)
U-235, U-233, or Pu 112 PWR 34 ' 7 00 ' 9 07 g 297'671 g U-235 420'974 g Fu tot
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The spe cified raterial, which is now located ct Bernau will up:>n apprcval hereby by the United States Department of Energy te transferred on or atcut January 11 1994 followed bv different shirments until Decerter 31,199E for use at Beznau I or Bernau II and will be accepted for tne f ;110w 1:.g specified purpcse :
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Reprocessing cf the 112 irradiated fuel assemblies The tra sf eror, with the concurrence of the transferee, will notify within 30 days after the af oresaid date the United States -Department of Energy cf the actual date and quantity of material transf erred.
It is agreed by the transferor and transf eree that as of that date the specified material will cease to be subj ect to the Agreement for Cooperation and contract indicated above and will be subj ect to the transferee's Agreement for Cceperation for Civil Uses with the United States Government.
EURATOM S -
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BONDESAW FOR Eh'ERmnYmTerum
('rans ree)
(Date)
(Transferor)
(Date)
Above requested transf er under Article of transferee's Agreement f or Cooperation f or Civil Uses with the United /$tates Government approved, provided physical transfer is censummated by Directcr f or Nuclear Af f airs, International Prograns (Date)
(For the United States Department of Energy)
Annex B Section 127 of the Atomic Enerov Act of 1954 as amended Effective January 1,1986, Spain and Portugal became members of the European Community and of the European Atomic Energy Community. Also, the November 8, l
1958 Agreement for Cooperation between the United States and the European Atomic Energy Community expired December 31, 1985. However, by exchange of notes on December 16 and 17, 1985, the United States and the European Atomic i
Energy Community, noting that Article V of the Additional Agreement for Cooperation of 1960 incorporates by reference Articles IV, V, VI, XI, X11, XV and Annex B of the November 8, 1958 Agreement for Cooperation, agreed that upon expiration of the November 8,1958 Agreenient on December 31, 1985, the i
European Atomic Energy Community would hold as subject to the Additional Agreement all materials, equipment, and devices that were subject to the i
expiring agreement. Thus, the Community has confirmed that all previous U.S.
t nuclear exports under the expired agreement will continue to be subject to the l
l safeguards and controls described in this analysis.
Section 127(4) provides that the United States may approve a retransfer only l
if the recipient agrees that the transfer will be subject to the same l
conditions set forth in that section that would apply to export from the
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United States in the quoted export criteria. Therefore, the word " export" (or l
l a variation thereof) is equivalent to the word " retransfer" (or a variation 1
thereof). The European Atomic Energy Co w. unity has agreed that the material proposed to be retransferred will become subject to the U.S.-Eurorean Atomic Energy Community Agreement for Cooperation and, therefore for the purpose of the discussion below, the material is treated under that agreement as if it had been transferred from the United States.
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Criterion (1) - Section 127 (1)
"lAEA safeguards as required by Article 111(2) of the Treaty will be applied with respect to any such material or facilities proposed to be exported, to i
any such material or f acilities previously exported and subject to the j
applicable Agreement for Cooperation, and to any special nuclear material used 1
in or produced through the use thereof."
All of the ten non-nuclear-weapon state members of the European Community and lJ the United Kingdom are parties to the Treaty on the Non-Proliferation of Nuclear Weapons, as Spain deposited its instrument of accession to the Treaty on November 5, 1987.
Each of these ten states (Belgium, Denmark, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, and Spain) thus undertook the obligation in Article 111(1) of the Treaty on the Non-J Proliferation of Nuclear Weapons to accept safeguards of the IAEA on all nuclear material in all of its peaceful nuclear activities and to enter into 3
a an agreement with IAEA to that effect.
j As permitted by Article 111(4) of the Treaty on the Non-Proliferation of i
Nuclear Weapons, those states elected to adhere to a single agreement with the j
International Atomic Energy Agency (INFCIRC/193).
Since as parties to the l
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3 Treaty Establishing the European Atomic Energy Community, they had assigned to the European Atomic Energy Community the responsibility and authority to apply safeguards within their territories, the European Atomic Energy Community is also a party to that agreement. The agreement, after approval by the Board of i
Governors of the International Atomic Energy Agency and the European Community and ratification by each of the then seven non-nuclear-weapon member states, entered into force February 21, 1977. Greece, Spain, and Portugal became s
i parties to this agreement upon entry into the European Atomic Energy j
Community.
As in the case of all safeguards agreements between the IAEA and non-nuclear-weapon states pursuant to Article III(l) of the Treaty on the Non-Proliferation of Nuclear Weapons, the agreement with the European Atomic Energy Community and the non-nuclear-weapon member states includes provision for the completion by the parties of " Subsidiary Arrangements", setting.forth j
i in detail the manner in which the safeguards procedures called for in the i
l agreement are to be carried out.
International Atomic Energy Agency safeguards as required by Article III(2) of i
the Treaty on the Non-Proliferation of Nuclear Weapons will be applied to any material and facilities exported to European Atomic Energy Community, to any i
material and facilities previously exported and subject to the Additional Agreement, and to any special nuclear material used in or produced through the use thereof.
l As nuclear-weapon states, France and the United Kingdom are not subject to International Atomic Energy Agency safeguards as required by Article III(2) of i
the Treaty on the Non-Proliferation of Nuclear Weapons.
It is the Executive i
Branch view that criterion (1) is met with respect to exports to France and the United Kingdom.
l In addition, all member states are obligated to accept the European Atomic Energy Community safeguards applied to nuclear material, equipment, and devices subject to the Additional Agreement in each of the member states of the Community, including Frante and the United Kingdom. Under Article V of the Additional Agreement for Cooperation of 1960, as amended, which incorporates, inter alia, Article XI, XII and Annex B of the November 8, 1958 agreement, European Atomic Energy Community has the responsibility for establishing and implementing a safeguards and control system designed to give maximum assurance that any material supplied by the United States or generated from such supply will be used solely for peaceful purposes (" European Atomic Energy Community Safeguards System"). The Community is bound to consult and exchange experiences with the IAEA with the objective of establishing a system reasonably compatible with that of the safeguards system of the International Atomic Energy Agency. The European Atomic Energy Community is responsible for establishing and maintaining a mutually (with respect to the United States) satisfactory and effective safeguards and controls system in accordance with stated principles. The European Atomic Energy Community safeguards are 4
applied to material and facilities previously exported and subject to the Additional Agreement and to special nuclear material used in or produced 5
through the use thereof.
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i France and the United Kingdom, as nuclear weapon states, are not subject to the requirement for safeguards under section 127(1). Nevertheless, both nations have concluded voluntary of fers for the application of International Atomic Energy Agency safeguards, under INFCIRC/290 of September 12, 1981 (for France) and INFCIRC/263 of August 14, 1978 (for the United Kingdom).
We would note that the European Atomic Energy Community safeguards system, l
because of its continuing accountancy and materials control function for the j
European Atomic Energy Community countries, will remain one of the factors relevant to the judgment of the Executive Branch, under section 126(a)(1),
i that a proposed export to one of these states will not be inimical to the common defense and security.
Therefore, it is the Executive Branch view that criterion (1) is met with respect to the entire European Atomic Energy Community.
Criterion (2) - Section 127 (2)
J "No such material, f acilities, or sensitive nuclear technology proposed to be i
exported or previously exported and subject to the applicable agreement for cooperation, and no special nuclear material produced through the use of such j
materials, f acilities, or sensitive nuclear technology, will be used for any nuclear explosive device or for research on or development of any nuclear explosive device."
The proposed export. and any special nuclear material produced through its use, is to be subject to the Additional Agreement for Cooperation which the Additional Agreement for Cooperation incorporates by reference to Article V.
Article XI(l) and (3) of the November 8, 1958 Agreement for Cooperation provides that "no material, including equipment and devices, transferred pursuant to this Agreement" 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 development of atomic weapons or for any other military purpose." All European Atomic Energy Community member states share the understanding of the United States that the term " atomic weapon" includes any nuclear explosive device. Therefore, we regard their reference under the Additional Agreement for Cooperation to be equivalent to any nuclear explosive device.
Each non-nuclear-weapon state of the Community is a party to the Treaty on the Non-Proliferation of Nuclear Weapons. As such, they are pledged not to manufacture or acquire nuclear explosive devices for any purpose. This no explosive use commitment applies to any material, facilities and sensitive nuclear technology purposed to be exported or previously exported to such state by the United States and to material used in or produced through the use j
thereof.
Therefore, it is the Executive Branch view that criterion (2) or its equivalent is met with respect to the Community.
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Criterion (3) - Section 127 (3)
" Adequate physical security measures will be maintained with respect to such material or f acilities proposed to be exported and to any special nuclear material used in or produced through the use thereof.
Following the effective i
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".
The following states in the European Atomic Energy Community have confirmed maintenance of physical security measures providing as a minimum a level of i
i protection comparable to that set forth in INFCIRC/225/Rev.1 for all nuclear material, equipment and facilities imported from the United States as well as nuclear material produced through the use of such material or facilities:
Belgium, Denmark, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, i
Spain, and the United Kingdom.
France and Germany have provided assurances regarding the maintenance of l
physical protection at least equal to that defined in Annex B of the Nuclear i
Supplier Guidelines published by the International Atomic Energy Agency under reference INFCIRC/254, for all nuclear material and installations imported from the United States as well as all nuclear material used in or produced by use of such material and installations. The Department of State by letter to the Nuclear Regulatory Commission dated October 6,1978, expressed the view j
that such an assurance meets the requirements set forth by the Nuclear i
Regulatory Commission under 10 CFR Part 110.43, pursuant to section 304(d) of the Nuclear Non-Proliferation Act of 1978, in that the levels of protection i
called for in the Supplier Guidelines were derived directly from INFCIRC/225/Rev.2 and were specifically designed to achieve levels of protection consistent with the physical protection measures in INFCIRC/225/Rev.2.
It is the judgment of the Executive Branch that the United Kingdom has established physical security measures which, as a minimum, meet those recommended in the International Atomic Energy Agency's INFCIRC/225/Rev.1, "The Physical Protection of Nuclear Material."
Therefore, it is the view of the Executive Branch that criterion (3) is met.
Criterion (4) - Section 127 (4) l l
"No such materials, facilities, or sensitive nuclear technology proposed to be exported, and no special nuclear material produced through the use of such l
material, will be retransferred to the jurisdiction of any other nation or l
group of nations unless the prior approval of the United States is obtained l
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."
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Article XI(2) of the November 8,1958 Agreement for Cooperation, which the
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Additional Agreement for Cooperation incorporates by reference in Article V, l
l provides that no material (including equipment and devices) may be transferred beyond the control of the European Atomic Energy Community, unless the United i
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i States agrees.
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Article I bis D of the Additional Agreement for Cooperation provides that 1-spacial nuclear material produced through the use of United States-supplied material may be exported to any nation outside the European Atomic Energy Community or to a group of nations, provided that such nation or group of j
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 European Atomic Energy Community and the United States. The l
l European Atomic Energy Community's interpretation of this language -- as set out in an April 15, 1977, letter from Fernand Spaak, Head of the Delegation of i
the Commission of the European Communities, to the Department of State--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 United States, the proposed recipient of such produced special nuclear material has an Agreement for Cooperation with the United States wnich is j
" appropriate".
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During discussions with representatives of the European Community held in l
Washington on November 1,1978, the European Atomic Energy Community confirmed that material subject to Article I bis D could not be transferred outside of the Community unless the United States agreed that the recipient countries or group of nations had an appropriate Agreement for Cooperation with the United States or safeguards acceptable to both parties.
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Therefore, it is the Executive Branch view that, with regard to the proposed i
export and special nuclear material produced through its use, criterion (4) is i
met.
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With respect to retransfers within the European Atomic Energy 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 j
nations under this criterion. With respect to this provision, the Senate report states:
"It should be noted that under the U.S.-EURATOM Agreements, the United States does have a right of prior approval on retransfers I
of certain material outside of the EURATOM Community.
It should j
also be noted that paragraph 4 does not require prior approval with respect to transfers within the EURATOM Community, consistent a
with United States policy of treating that Community as a single j
(i.e. simple) entity."
i The congressional intent not to require United States consent rights for 4
transfers within the European Atomic Energy Community is also clear in section 123a(5) of the Atomic Energy Act, as amended, since it requires that the U.S.
j seek a guarantee "by the cooperating party" (which in this case is the European Atomic Energy Community as a whole).
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6 Criterion (5) - Section 127 (5)
I "No such material proposed to be exporteu and no special nuclear material produced through the use of such material will be reprocessed, 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."
The purpose of this proposed subsequent arrangement is, of course, reprocessing pursuant to article VII(j) of the 1965 U.S.-Switzerland Agreement t
for Cooperation. However, European Atomic Energy Community was expressly exempted from criterion (5) by virtue of section 126a(2) of the Act for a period of two years from March 10, 1978, inasmuch as 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.
Executive Order 12840 extends the duration of the period specified in the first provision to section 126a(2) of the Act of March 10, 1994. However, this exemption does not, of course, affect the rights which the United States has under the United " ates-European Atomic Energy Community Agreements for Cooperation and under the commitments from the non-European Atomic Energy Community shipping country (Switzerland).
Although Portugal and Spain are European Atomic Energy Community members, direct U.S. exports and retransfers of U.S.-origin from outside European Atomic Energy Community are made subject to the existing bilateral agreements with Portugal and Spain. Nuclear material already in Portugal and Spain subject to the bilateral agreements continue to remain subject to those agreements. Those agreements do contain a reprocessing and alteration prior consent rights.
Therefore, in the view of the Executive Branch, criterion (5) or its equivalent is satisfied.
l Criterion (6) - Section 127 (6) l "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 constructed under the jurisdiction of the recipient nation or group of nations by or through the use of any such exported sensitive nuclear technol ogy. "
The proposed retransfer does not involve sensitive nuclear technology.
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Criterion (6), therefore, is not applicable.
Section 128 of the Atomic Enerav Act of 1954. as amended Section 128a(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 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
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peaceful nuclear activities in, under the jurisdiction of, or carried out under the control of such state at the time of the export."
All non-nuclear-weapon states that are members of the European Atomic Energy Community (including Spain) as parties to the NPT have agreed to accept International Atomic Energy Agency safeguards on all their peaceful nuclear activities and have implemented that commitment through their agreement with the International Atomic Energy Agency and European Atomic Energy Community (INFCIRC/193).
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l Annex C l
Section 13) of the Atomic Enerav Act of 1954. as amended This request falls under the definition of a subsequent arrangement in section 131a(2)B of the Atomic Energy Act of 1954, as amended (Act), and requires the concurrence of the Department of State and consultation with the Arms Control i
and Disarmament Agency, the Nuclear Regulatory Commission, the Department of Defense, and the Department of Commerce. The Arms Control and Disarmament Agency may, if it deems necessary, prepare a Nuclear Proliferation Assessment l
Statement. None has been necessary for this subsequent arrangement.
i Notice of the proposed subsequent arrangement must appear for at least 15 days l
in the Federal Reaister before the retransfer is approved, together with the written determination of the Department of Energy that the arrangement will not be inimical to the common defense and security. This determination has been made. The required federal Reaister notice has been published. Under i
section 131b(1) of the Act, this retransfer cannot be approved until the i
Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate have been provided with a report containing the reasons for entering into the arrangement and a period of 15 days of continuous session has elapsed; provided however, that the Secretary of Energy i
(by delegation from the President under E.0, 12058) can declare an emergency j
due to unforeseen circumstances; then the period shall be 15 calendar days.
I The applicable provisions of section 131b of the Act stipulate important i
criteria that must be taken into account prior to entering into any subsequent l
arrangement for the retransfer for reprocessing of United States-supplied
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j special nuclear materials or of special nuclear materials produced through l
U.S. assistance. While a distinction is drawn in section 131b(2) and 131b(3) i of the Act between facilities which have or have not reprocessed power reactor i
j fuel assemblies or that have or have not been the subject of subsequent i
arrangements prior to the enactment of the Act, common policy objectives clearly apply to both paragraphs.
5 These provisions pertain to whether the proposed retransfer, inter alia, will i
j result in a significant increase of the risk of proliferation beyond that i
which exists at the time that approval is requested.
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Annex C In particular, section 131b(2) of the Act provides that:
"(2) The Secretary of Energy may not enter into any subsequent i
arrangement for the reprocessing of any such material in a facility i
which has not processed power reactor fuel assemblies or been the subject of a subsequent arrangement therefore prior to the date of enactment of the Nuclear Non-Proliferation Act of 1978 or for subsequent retransfer to a non-nuclear-weapon state of any plutonium in J
quantities greater than 500 grams resulting from such reprocessing, unless in his judgment, and that of the Secretary of State, such 3
reprocessing or retransfer will not result in a significant increase of the risk of proliferation beyond that which exists at the time that approval is requested. Among all the factors in making this judgment, foremost consideration will be given to whether or not the reprocessing i
or retransfer will take place under conditions that will ensure timely warning to the United States of any diversion well in advance of the time at which the non-nuclear-weapon state could transform the diverted material into a nuclear explosive device."
Section 131b(3) of the Act provides that:
(3) The Secretary of Energy shall attempt to ensure, in entering into l
any subsequent arrangement for the reprocessing of any such material in 4
any f acility that has processed power reactor fuel assemblies or been 4
the subject of a subsequent arrangement therefore prior to the date of enactment of the Nuclear Non-Proliferation Act of 1978 (March 10, 1978),
i or for the subsequent retransfer to any non-nuclear-weapon state of any l
plutonium in quantities greater than 500 grams resulting from such reprocessing, that such reprocessing or retransfer shall take place under conditions comparable to those which in his view, and that of the j
Secretary of State, satisfy the standards set forth in paragraph (2)."
l The spent fuel in this case may be reprocessed at the Thermal 0xide Reprocessing Plant facility at the Windscale site in the United Kingdom; therefore, this retransfer will be made under section 131b(3) of the Act.
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1 Annex 0 i
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Safeouards Implementation l
l1 The International Atomic Energy Agency Secretariat has noted in its Annual i
Report for 1991 noted that in carrying out the safeguards obligations of the Agency in 1991, the Secretariat did not detect any event which would indicate i
i the diversion of a signific6nt amount of nuclear material placed under Agency safeguards -- or, with regard to certain agreements, the misuse of facilities, i
equipment or non-nuclear material subject to safeguards -- for the manufacture i
i of any nuclear weapon, or for any other military purpose, or for the l
1 manufacture of any other nuclear explosive device, or for purposes unknown.
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Inspection activities carried out pursuant to United Nations Security Council l
Resolution 687 revealed that Iraq has not complied with the obligations under i
i its safeguards agreement to declare certain nuclear activities and place all relevant nuclear material under safeguards. However, it is considered l
reasonable to conclude that the nuclear material placed under Agency i
safeguards remained in peaceful nuclear activities or was otherwise adequately i
accounted for.
l The Executive Branch has no reason to believe that the International Atomic l
l Er:ergy Agency Secretariat's report is not valid.
In the light of this and other factors associated with the proposed transfer, the Executive Branch believes the framework of commitrents, assurances, and safeguards is adequate j
for the purpose of this proposed transfer.
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