ML20056F743
| ML20056F743 | |
| Person / Time | |
|---|---|
| Issue date: | 08/20/1993 |
| From: | Stobier C NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| To: | |
| References | |
| SECY-93-231, NUDOCS 9308300332 | |
| Download: ML20056F743 (25) | |
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POLICY ISSUE (Notation Vote)
August 20, 1993 SECY-93-231 For:
The Commissioners From:
Carlton R. Stoiber, Director Office of International Programs Sub.iect:
PROPOSED RETRANSFER OF PLUT0NIUM FROM FRANCE TO GERMANY FOR FABRICATION INTO M0X FUEL FOR EURATOM POWER REACTORS I
Purpose:
i To obtain Commission approwl of a proposed response to the Department of Energy (DOE).
Discussion:
DOE requests the views of NRC on a proposed subsequent arrangement covering the retransfer of 146 kilograms of plutonium from France to Germany's Siemens (KWU) facility for fabrication of mixed uranium-plutonium oxide (M0X) fuel assemblies for use in power reactors within the European Community (Attachment 1). The plutonium was recovered through the reprocessing of U.S.-
origin spent fuel from Swiss power reactors. The transaction is part of a loan / replacement arrangement between Siemens and Swiss reactor operator Nordostschweizerische Kraftwerk AG (NOK), to replace an equivalent amount of fissile plutonium, not of U.S. origin, that Siemens had loaned to N0K. The transfer of the spent fuel assemblies from Switzerland to La Hague, France for reprocessing had beer. previously approved by DOE.
The present case is similar to an earlier loan / replacement between EURATOM and Switzerland where U.S.-origin plutonium recovered through the reprocessing of spent fuel from Swiss reactors was used to replace an equivalent amount of non-U.S. origin plutonium that Belgium had loaned to NOK. The Commission did not object to DOE approving this earlier case which was discussed in SECY 399, dated December 2, 1992.
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l Section 133 of the Atomic Energy Act of 1954, as amended, applies to the subject transfer. This section requires the Secretary of Energy to consult with the Department of Defense (D0D) regarding the adequacy of the physical protection of the separated plutonium during its retransfer from France to
Contact:
E. Hemby, DIP (504-2341)
NOTE:
TO BE MADE PUBLICLY AVAILABLE WHEN THE FINAL SRM IS MADE
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The Commissioners 2
August 20, 1993 l
1 Germany. D0D staff has indicated that it will not object to the transfer-I however its formal views have not yet been forwarded to D0E. The case cannot be approved until D00 has communicated its final assessment to DOE.
Germany is a party to the Non-Proliferation Treaty and, as such, accepts IAEA' l
safeguards on all. source and special nuclear material in its nuclear activities. The latest IAEA Annual Report shows that an IAEA Facility Attachment has been negotiated and is in force for the Siemens facility. The j
staff has reviewed the physical protection program within the jurisdiction of l
Germany and has determined that this program is consistent with the-l recommendations of IAEA INFCIRC/225/Rev.2. This determination is based on a physical protection evaluation performed during a visit to Germany in January 1992, and subsequent information received to date, none of which indic.ates any degradation of physical protection.
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Conclusion:==
i The staff believes all statutory requirements of the Atomic Energy Act of--
1954, as amended, will be met when D0D sends its final assessment to DOE confirming the adequacy of the physical protection.
Further, the staff-(
believes the subject case is consistent with U.S. policy and would not be inimical to the common defense and security of the U.S.
Accordingly, the l
staff finds no basis for the Commission to object to the present case, with
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the understanding that the Commission's finding is contingent on DOE's receipt-of formal, non-adverse comments from D00.
j EDO concurs in the paper. 0GC has no legal objection.
Recommendation:
That the Commission approve the proposed response to DOE at Attachment 2.
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M rlton R. Stoiber, Director Office of International Programs l
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Attachments:
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DOE ltr and analysis dtd 7/26/93 2.
Proposed response to DOE I
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Commissioners' comments or consent should be provided directly I
to the Office of the Secretary by COB Tuesday, September 7, 1993.
Commission Staff Office comments, if any, should be submitted I
to the Commissioners NLT Monday, August 30, 1993, with an infor-i mation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
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JUL 2 61993 MEMORANDUM 10:
Mr. William Clements, Director Office of Technology and Policy Analysis Department of Commerce OTPA Room 4069A Washington, D.C.
20230 Defense Nuclear Agency Arms Control & Test Limitation Division 6801 Telegraph Rd.
Alexandria, Va.
22310-3398 Attn: Maj. Thomas S. Chivers Mr. Robin DeLaBarre OES/NEC Department of State Washington, D.C.
20520 Mr. Michael D. Rosenthal U.S. Arms Control r m sarmament Agency NWC/INA, Room 4678 Washington, D.C.
20451 g 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.
r Edward T. Fei
./;m Acting Director V
- Office of Nonproliferation Policy (IS-40)
Office of Arms Control & Nonproliferation i
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DEPARTMENT OF ENERGY i
Office of Arms Control and Nonproliferation t
PROPOSED SUBSEQUENT ARRANGEMENT
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Pursuant to Section 131 of the Atomic Enbrgy Act of 1954, as amended (42 U.S.C. 2160), notice is hereby given of a proposed " subsequent arrangement" under 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, and the Additional Agreement for Cooperation between the Government of the United States of America and the European Atomic Energy Community (EURATOM) concerning Peaceful Uses of Atomic I
Energy, as amended.
l The subsequent arrangement to be carried out under the above-mentioned agreements involves the delivery of 146 kilograms of fissile plutonium from i
France to the Federal Republic of Germany for use in the fabrication of mixed
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uranium-plutonium oxide (M0X) fuel for use as power reactor fuel within the European Community.
This fissile plutonium, which is subject to United States consent rights, will be used to reoay the loan of plutonium from Seimans, KWU i
in the Federal Republic of Germany to Switzerland of an equivalent amount of fissile plutonium which was not subject to United States consent rights.
The United States will consent to the use of this plutonium within the European Community for the above-mentioned propose.
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 inimical to the common defense and security.
4 This subsequent arrangement will take effect no sooner than fifteen days after the date of publication of this notice and after fifteen days of 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 Washington, D.C. on Edward T. Fei Acting Director Office of Nonproliferation Policy
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ANALYSIS OF PROPOSED SUBSEQUENT ARPANGEMENT CONCERNING THE TRANSFER OF PLUTONIUM FROM FRANCE TO SEIMANS, KWU, THE FEDERAL REPUBLIC OF GERMANY FOR FABRICATION OF MIXED l
URANIUM-PLUT0NIUM OXIDE FUEL WITHIN THE EUROPEAN COMMUNITY I.
Nature of Pronosed Subseouent Arranaement The Government of Switzerland has requested the United States approval for the transfer of 146 kilograms of fissile plutonium that. has been recovered through the reprocessing of U.S.-origin spent power reactor fuel in France to Seimans, KWU, the Federal Republic of Germany, for fabrication of mixed plutonium-uranium oxide fuel assemblies for use within the European Community.
The plutonium in France is subject to U.S. consent rights for the transfer or re-use.
The material has been recovered via reprocessing in France, previously approved by the Department of Energy.
This material is intended to replace plutonium not subject to U.S. consent rights which was loaned to Nordostschweizerische Kraftwerk AG by Seimans, KWU in the Federal Republic of Germany.
II.
Statement of United States Policy The policy of the United States on peaceful nuclear cooperation with other nations and its relationship to the nonproliferation of nuclear explosives was outlined by President Reagan in his statement of July 16, 1981. He stated that:
The United States will cooperate with other nations in the peaceful uses of nuclear energy, including civil nuclear programs to meet their energy security needs, i
under a regime of adequate safeguards and controls...
We must re-establish this nation as a predictable and reliable partner for peaceful nuclear cooperation under adequate safeguards.
This is essential to our nonproliferation goals.
If we are not such a partner, other countries will tend to go their own ways and our influence will diminish. This would reduce our effectiveness in gaining the support we need to deal with proliferation problems.
To attain this objective, I am:
o Instructing the Executive Branch agencies to undertake immediate efforts to ensure expeditious action on export requests and approval requests under agreements for peaceful nuclear cooperation where the necessary statutory requirements are met.
o Requesting that the Nuclear Regulatory I
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e Commission act expeditiously on these matters.
o The Administration will also not inhibit or setback civil reprocessing and breeder reactor development abroad in nations with advanced nuclear power programs where it does not constitute a proliferation risk.
This policy has been consistently applied since 1981 and has not been changed by this Administration.
III. Leaal Framework of this Subseouent Arranaement This analysis serves to review the proposed subsequent arrangement under applicable criteria of the Atomic Energ. Act of 1954, as amended (the Act).
In particular, under section 13), it will consider whether approval of the proposed subsequent arrangement would result in a significant increase of the risk of proliferation beyond that which exists at the present time.
In this analysis, and as required by section 131b(2) of the Act, foremost consideration is given as to whether the activities will take plate under conditions which will ensure timely warning to the United States of any diversion well in advance of the time at which any diverted material could be transformed into a nuclear explosive device.
Further, and as required by section 131a(1) of the Act, a determination will be made as to whether the approval of the proposed subsequent arrangement would be inimical to the 1
common defense and security.
Finally, the criteria contained in sections 127 and 128 of the Act will be addressed, t
IV.
Analytical Method i
The Atomic Energy Act (section 131b) establishes the standards to be applied in the consideration for transfers of any plutonium in quantities greater than 500 grams resulting from reprocessing. These standards incorporate the requirement that the Secretary of Energy reach a judgment that the reprocessing or the subsequent retransfer of any i
plutonium to a non-nuclear-weapon state "will not result in a significant increase of the risk of proliferation beyond that which exists at the time that approval is requested."
i Among all the factors to be considered in reaching this judgment, the Secretary of Energy is required to give " foremost consideration...to whether or not the... 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 l
transform the diverted material into a nuclear explosive device."
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The following sections are intended to provide information relevant to consideration of this " timely warning" factor. Although the statute does not specify in any detail the information to be considered under the " timely warning" factor, it is clear that a wide variety of technical, political, and other matters can be relevant.
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t The nature of the effort that would be required to develop a nuclear explosive device is considered. The analysis next discusses the availability of technical, industrial, material, and human resources available were a diversion decision to be implemented. Thereafter, the analysis focuses on indicators that could provide timely warning of such a step, including the application of International Atomt Energy Agency safeguards in these countries.
The analysis also treats, in some.
detail, the strong political and other indicators which taken-together could provide an early alert to the United States of activities attendant to a national decision to abrogate these commitments and, in the words of the statute, " transform diverted material into a nuclear explosive device."
V.
Analysis of Activities to be Performed at Seimans facility in the Fedetal Republic of Germany A.
Nuclear Facilities and proarams of the Federal Republic of Germany The Federal Republic of Germany is an original partner in the European Atomic Energy Community.
The nations of the European Atomic Energy Community have some of the world's most extensive and advanced nuclear programs encompassing the entire nuclear fuel cycle, from uranium enrichment facilities through reprocessing, breeder programs, and the recycling of plutonium in light water reactors.
The Federal Republic of Germany's significant nuclear programs also include facilitias for the fabrication of mixed uranium-plutonium fuel. The F1deral Republic of Germany's nuclear sector has played a very important role in the development of the Federal Republic of Germany's economy by providing reliable electric power and the attainment of greater energy self-sufficiency.
The Federal Republic of Germany has a mature, fall-service nuclear industry which provides about 30 percent of the country's electricity needs and is closely linked to the European nuclear activities through the provision of the fuel cycle services.
B.
Evaluation of the Risk of increased Proliferation with Reference to
" Timely Warnina" - Fabrication at Seimans. KWV 1.
Weapons-Related Research. Development and Production In examining the requirements for a nuclear weapons program, it is first appropriate to discuss briefly the process of developing nuclear weapons and a description of various types.
The complexity and difficulty of producing nuclear weapons increases considerably from the relatively simple fission devices to the advanced thermonuclear devices.
Nuclear weapons can be categorized as being one of three general types:
fission (gun or implosion), boosted, and thermonuclear.
The technical requirements, skills, numbers of personnel, equipment, materials, facilities, and the financial, 3
organizational and managerial resources that are required to develop, produce, and test the three types are quite different.
As concluded in a 1977 report prepared by the Office of Technology Assessment of the Congress, " Nuclear Proliferation and Safeguards," even a minimal program to clandestinely produce, without testing, low technology fission weapons --
given the availability of fissionable material at the outset --
would still call for specific organizational structures and dedicated resources of personnel, equipment, and funding.
2.
Industrial Capacity as Related to heapons Research. Development and Production Proarams The Federal Republic of Germany is a modern highly industrialized nation with an advane$d commercial nuclear industry.
Its nuclear-related facilit a include research and power reactors and fuel fabrication (including mixed plutonium-uranium facilities).
German participation in the European breeder program has been substantial. A cooperation agreement with the Federal Republic of Germany and the Netherlands led to the construction of the SNR-300 breeder reactor at Kalkar in Germany.
Assuming a source of plutonium or highly enriched uranium, a number of skills, technologin, and processes must be orchestrated in order to turn special nuclear material into a weapon.
Some of these skills and technologies can be developed or derived from work conducted in the nuclear fuel cycle, such as neutron physics computer codes. Others may derive from the military or industrial sectors and be adapted for nuclear weapons development. These technologies include high energy explosives, precision detonators and firing sets, hydrodiagnostic testing equipment, such as flash x-rays and high speed cameras, and precision machine tools.
It is evident that the Federal Republic of Germany has these requisite skills, technologies, and processes in its nuclear, industrial, and military sectors.
But while possession is important, what is critical is that these skills, technologies, and processes be organized and managed effectively toward the goal of weapons development.
For example, in the United States there is a basic seven-step process by which nuclear weapons are produced:
1.
Concept formulation formulation of a military requirement for a weapon of a specific yield, configuration, delivery mode, etc.
2.
Preliminary design technical design of a concept to meet the military 4
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3.
Experimental testing --
a comprehensive multi-phase test series including non-nuclear high explosives testing to ascertain design problems.
4.
Fabrication actual production of a prototype device.
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Testing nuclear testing of the prototype device.
6.
Production production of the required number of weapons for deployment.
7.
Retirement retirement and disassembly of the weapons.
Although a potential proliferant's approach probably would not l
mirror-image the United States, an organized, methodical,. step-by-step process would be required to harness the various skills and resources in the various sectors of a country to produce nuclear weapons.
Depending on the type of program, there would likely be indicators to provide warning time for increased vigilance or diplomatic action.
Should the Federal Republic of Germany make the decision to implement a weapons program, activities which reveal these types of organizations could serve as an indicator of a weapons effort. After an evaluation i
of information available to the United States, DOE has concluded that no such effort is underway in the Federal Republic of Germany.
3.
Availability of Plutonium and Hiably Enriched Uranium i
The Federal Republic of Germany possesses significant quantities of special nuclear material.
The U.S.-European Atomic Energy Community agreements for cooperation in the field of peaceful-uses of atomic energy permit reprocessing within the European Community of U.S.-origin material exported by the United States directly to the Community and, as well, the reuse of the special nuclear material (uranium and plutonium) 1 recovered from such reprocessing. There are significant amounts of such separated plutonium and uranium within the i
Community (which includes the Federal Republic of Germany).
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addition to material of U.S.-origin, which is subject to l
peaceful uses' assurances in the Agreements for Cooperation, there are significant quantities of special nuclear material not subject to the U.S.-European Atomic Energy Community Agreement, as detailed below.
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4 Some of the separated plutonium available includes plutonium separated from spent fuel discharged from nuclear power reactors.
Plutonium recovered from this source to date is of high burn-up and not especially attractive for nuclear explosive purposes.
In addition, considerable amounts of plutonium remain in unreprocessed spent fuel at German reactors.
For plutonium, j
this amount will increase ough the end of the century, while for highly enriched uraniv his amount is likely to decrease steadily through the end of the century as new low-enrichment research fuels are introduced.
Some of this plutonium could, in principle, be recovered and used.for nuclear weapons, although it is under safeguards and has a high Plutonium-240 content.
t In summary, the Federal Republic of ' Germany has the technical capability to engage in the production of nuclear weapons and possesses sufficient amounts.of special nuclear material to r
support such a program without the need to divert the material covered by this case.
Furthermore, it is the opinion of the Department of Energy that the activities involved in acquisition or diversion of material and development of nuclear weapons would be difficult to accomplish without detection.
Such activities could, as noted above, provide clear indication of plans to acquire nuclear weapons relevant to " timely warning."
1 4.
Information Concernina Warnina Time. Includina Political Indicators Even given its technical capabilities, a decision by the Federal Republic of Germany to enter into a nuclear weapons development program would necessarily require a political decision to do so. Accordingly, an examination of the political indicators that could serve to give notice of such a decision is appropriate in reaching a conclusion with respect to the proposed subsequent arrangement.
The Federal Republic of Germany has, since the end of World War 1
II, demonstrated its overall political stability through several changes in government. There has been support for nonproliferation and no significant voice has been raised in favor of a nuclear weapons program.
The federal Republic of Germany is a party of the Treaty on the Non-Proliferation of Nuclear Weapons, and all of its nuclear i
facilities are subject to International Atomic Energy Agency
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and European Atomic Energy Community safeguards.
It is a s
member of the Zangger Committee, which is a central element in i
implementing the nonproliferation regime, and is also a member of the Nuclear Suppliers Group and a member of the 6
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International Atomic Energy Agency.
Germany's democratic, open society makes it likely that sny shift in its nonproliferation policy would be evident.
The consistently strong support of the German Government ard all leading German political parties to the principle of nonproliferation are important considerations in considering the timely warning provision of'the Atomic Energy Ac'..
There is no basis for believing that the Federal Republic of Germany will not respect its Treaty on the Non-Proliferatimi of Nuclear Weapons or European Atomic Energy Community commitrents or engage in nuclear weapons related activities.
Any such move would become known within the Federal Republic of Fermany's political circles in a relatively short period, ant it is expected that the strongest possible opposition woild arise in those vocal elements in German society that favor i eductions in nuclear arsenals. Any German move to acquire nucleir weapons, however inconceivable, would also most likely creat.t an extremely serious breach of Germany's relations wit-a number of other countries (including the United States and Germany's 1
i European Community partners) that are strongly comrm tied to nonproliferation values. All of the foregoing factors suggest that the United States would receive an early indici tion of activities in the Federal Republic of German pointir ; towards development of a nuclear explosive program.
The United States and the Federal Republic of Germar / have a close diplomatic and military relationship with U.S. military forces (including nuclear missiles) being stationed :here.
The Federal Republic of Germany is a member of the North Atlantic Treaty Organization.
These factors, plus Germany's aembership in the European Community (with its interrelated ecoiomic and political ties), should make any decision to divert 'uclear t
material or to develop nuclear explosives obvious lo g before the fact.
5.
Discussion of Safeauards at the Seimans, KWU in the Fideral Republic of Germany As noted earlier, the plutonium that is the subjecI of this proposed subsequent arrangement is to be fabricated int o mixed plutonium-uranium oxide fuel at the Seimans facility.
Seimans has a formal International Atomic Energy Agency safeguards facility attachment in place and is subject it both the European Atomic Energy Community and the International Atomic Energy Agency safeguards.
The facility is subdivived into a large number of working units for which individual nuclear accountancy records are maintained and the specifi,'
physical location of items included in the inventory at an) time are available for safeguards purposes.
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Seimans plutonium fuel fabrication plant is subject to joint International Atomic Energy Agency-European Atomic Energy Community safeguards inspection.
These are presently performed by. a joint International Atomic Energy Agency-European Atomic Energy Community team in accordance with the International i
Atomic Energy Agency facility attachment.
Because of the i
presence of significant quantities of weapons-usable material, and the fact that Seimans is a bulk handling facility, timeliness of safeguards information is an important criterion.
To minimize interference by the safeguards regime with the production activities, the Seimans accountancy system is based on the following principles:
i 1.
For safety as well as for accountancy reasons, the plant is subdivided into a large number of so-called " working units" for which individual nuclear material accountancy files are kept. Since the records of the working units involved are immediately updated to reflect any movement of material into or out of such units, the nuclear material accountancy system can produce at any moment a complete book inventory of the nuclear materials in the plant, specifying their location, quantity, quality, measuring codes, etc.
2.
For inspection purposes, the plant is subdivided into storage areas (input and output) and process areas where a limited number of check points (strategic points) are defined and where all the nuclear materials present in the process can be checked by the inspectors.
The inventory quantities of special nuclear material in storage and the nature of the fabrication process at Seimans dictate a i
high frequency of safeguards inspections.
Therefore, a variety of nuclear materials inventory controls are organized by the International Atomic Energy Agency / European Atomic Energy e
Community Joint Team:
1.
"Short-term detection" activities for flow verification take place on a weekly basis, usually a two-day inspection of input and output records of storage facilities. This type of inspection sometimes interrupts the fabrication process.
2.
"Short-term detection" activities concerning in-process inventory take place every two weeks and aim at estimation i
of the plant's inventory of nuclear material.
The detection goal is a quantity of 8 kg Plutonium (significant quantity) including the quantities which at the time of the inspection are temporarily not able to be verified within a period of four weeks.
3.
" Physical inventories" are performed twice a year and 8
consist of a detailed physical inventory during which all nuclear material present at the plant is verified.
Safeguards experts have considered that the application of adequate verification techniques are most complex and difficult at bulk handling facilities, such as plutonium fuel fabrication plants. Nevertheless, the application of joint International Atomic Energy Agency-European Atomic Energy Community safeguards at Seimans has not revealed significant unresolved problems of safeguards application at the facility.
6.
Conclusion DOE believes that the foregoing paragraphs address the wide variety of matters relevant to the fabrication of mixed plutonium-uranium oxide fuel at Seimans and that, taken together, they give eviden~ce that the United States would have timely warning of any diversion of the material to be i
transferred to the Federal Republic of Germany as envisioned in section 131b(2).
C.
Evaluation of the Risk of Increased Proliferation With Reference to Other Factors The standard set forth in section 131b(2) of the Act for this case is whether an approval would result in a significant increase of the risk of proliferation beyond that existing at the time of the request. Having given " foremost consideration" in the foregoing paragraphs to the issue of " timely warning," the following section addresses other relevant factors that have been considered.
1.
Overall U.S.-German Relationships The Federal Republic of Germany is an ally of the United States with respect to defense, trade, and financial issues and a member of North Atlantic Treaty Organization. The substantial ties between the Federal Republic of Germany and the United States are also demonstrated by the strong support given to the International Atomic Energy Agency and the Treaty on the Non-Proliferation of Nuclear Weapons. The strong relationships between the two countries would clearly be jeopardized if the Federal Republic of Germany were to take steps to develop a nuclear weapons program.
2.
Nonproliferation Credentials The Federal Republic of Germany is a party to the Treaty on the Non-Proliferation of Nuclear Weapons and is a firm supporter of the international nonproliferation regime.
In the International Atomic Energy Agency, the Federal Republic of Germany has supported'the safeguards program.
The Federal Republic of Germany is also a member of the Zangger Committee 9
and a member of the Nuclear Suppliers Group.
It is the view of DOE that the Federal Republic of Germany's nonproliferation credentials support a conclusion that approval of this transaction will not give rise to a significant proliferation risk.
3.
Economic / Trade Factors The Federal Republic of Germany is a member of the European Community and, as such, has close and important ties to other member states. Any indication that the Federal Republic of Germany was entering into a nuclear weapons development program would seriously affect its relationships with other European Community states. The economic growth and health of the Federal Republic of Germany is, to a large degree, dependent on its continued good relations within the European Community.
This factor alone is sufficient reason for believing that there is little incentive (and powerful disincentives) for a decision to develop nuclear weapons.
4.
Military / Security Factors The Federal Republic of Germany has been a strong supporter of U.S. military policies in Europe in spite of well-organized objections from some segments of its society. The Federal Republic of Germany is an active and supportive member of North Atlantic Treaty Organization.
The national security benefits to the Federal Republic of Germany resulting from its North Atlantic Treaty Organization membership are of vital importance to the Federal Republic of Germany.
A German decision to embark on a nuclear weapons program would jeopardize these benefits.
5.
Extent and Ouality of Information DOE believes that the information about the Federal Republic of Germany's nuclear programs and intentions fully support the conclusions reached in this analysis.
6.
Physical Security Factors The Federal Republic of Germany has accepted the International Atomic Energy Agency INFCIRC 225/REV. 2 " Physical Protection of Nuclear Material" and INFCIRC 254 (pertaining to nuclear transfers) and has a government program to see that effective physical security measures are implemented at all facilities in the Federal Republic of Germany having Category I, II, and III materials.
Based on the discussions with the German government, nuclear 10
facility personnel and the opportunity to visit representative nuclear facilities having Category I material, DOE believes that physical security measures in Germany are consistent with standards and recommendations contained in INFCIRCs 225/REV. 2 and 254 and are fully adequate.
7.
Conclusion Based on our review of the relevant factors as they relate to the Federal Republic of Germany and the activities to be undertaken under this proposed subsequent arrangement, it is concluded that approval of this request will not result in a significant increase of the risk of proliferation beyond that which exists at the time that approval is requested.
In reaching this conclusion, foremost consideration was given to whether or not the United States would have timely warning of any diversion of the nuclear material well in advance of~ the time it could be transformed into a nuclear explosive device.
VI.
Safeauards Imolementation The International Atomic Energy Agency Secretariat has noted in its Annual Report for 1991 in carrying out the safeguards obligations of the Agency in 1991, the Secretariat did not detect any event which would indicate the diversion of a significant amount of nuclear material placed under Agency safeguards -- or, with regard to certain agreements, the misuse of facilities, equipment or non-nuclear material subject to i
safeguards -- for the manufacture of any nuclear weapon, or for any other military purpose, or for the manufacture of any other nuclear explosive device, or for purposes unknown.
Inspection activities carried out pursuant to U.N. Security Council Resolution 687 revealed that Iraq has not complied with the obligations under its safegcards agreement to declare certain nuclear' activities and place all relevant nuclear material under safeguards.
It is the view of the Executive Branch that nuclear material placed under Agency safeguards.in the European Community ~ remained in peaceful nuclear activities or was otherwise adequately accounted for.
In light of this, and other factors associated with the proposed transfer, the Executive Branch believes the framework of commitments, assurances, and safeguards is adequate for the purpose of this proposed transfer.
VII.
Section 127 of the Atomic Enerov Act of 1954. as amended with respect to the Federal ReDublic of Germany (European Atomic Enerav Community) r i
Section 127(4) provides that the United States may approve a retransfer only if the recipient agrees that the transfer will be subject to the same condition set forth in that section that would apply to export from the United States in the quoted export criteria.
Therefore, the word
" export" (or a variation thereof) in the following discussion is used as an equivalent to the word " retransfer" (or a variation thereof).
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A.
Criterion (1)
The International Atomic Energy Agency 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 and subject to the applicable agreement for cooperation and to any special nuclear material used in or produced through the use thereof.
All of the non-nuclear-weapon state members of the European Community and the United Kingdom are parties to the Treaty on the Non-Proliferation cf Nuclear Weapons.
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-Proliferation of Nuclear Weapons to accept International Atomic Energy Agency safeguards on all nuclear material in all its peaceful nuclear activities and to enter into an agreement with the International Atomic Energy Agency to that effect.
As permitted by Article III(4) of the Treaty on the Non-Proliferation of Nuclear Weapons, those ten states elected to adhere to a single agreement with the International Atomic Energy Agency (INFCIRC/193). Since as parties to 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 Governors of the Interaational Atomic Energy Agency and the European Community and ratification by each of the original seven non-nuclear-weapon member states, entered into force February 2,1977.
As in the case of all safeguards agreements between the International Atomic Energy Agency and non-nuclear-weapon state pursuant to Article 111(1) of the Treaty on the Non-Proliferation of Nuclear Weapons, the agreement with European Atomic Energy Community and the ten non-nuclear-weapon member states includes a provision for the completion 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.
Spain, a non-nuclear-weapon state that is a member of the Community, is now a party to the Treaty on the Non-Proliferation of Nuclear Weapons.
The U.S. exports directly to Spain, and previous 1) exported material and facilities subject to the U.S.-Spain peaceful nuclear cooperation agreement are, and will continue to be, subject to that agreement and its provisions (Article XII) for the application of International Atomic Energy Agency safeguards agreement.
Since Spain is a member of the nuclear common market established by the European Atomic Energy Community Treaty, nuclear material and equipment subject to the Additional Agreement for 12
Cooperation between the Government of the United States and the European Atomic Energy Community may be transferred to Spain while remaining subject to the provisions of the Additional Agreement.
Such nuclear material and equipment will be subject to International Atomic Energy Agency safeguards either under the U.S.-Spain-International Atomic Energy Agency safeguards agreement or under another agreement providing for International _ Atomic Energy Agency safeguards.
This is ensured because* the Delegation of the Commission has assured the U.S. Government that (I) International Atomic Energy Agency safeguards apply, de facto, to all peaceful nuclear activities in Spain, and (2) safeguards will be applied in Spain under a full scope safeguards agreement with coverage equivalent to that of INFCIRC/193.
Consequently, International Atnmic Energy Agency safeguards as required by Article III(2) of 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 material and facilities previously exported and subject to the Additional Agreement, and to any special nuclear material used in or produced through toe use thereof.
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 the Treaty.
Therefore, it is the Executive Branch view that criterion (I) is met with respect to exports to France and the United Kingdom.
In addition, all member states are obligated to accept 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 France, the United Kingdom, and Spain.
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, agreement, the 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 International Atomic Energy Agency with the objective of establishing a system reasonably compatible with _that of the safeguards system of the Agency.
The Community is responsible for establishing and maintaining a mutually satisfactory and effective safeguards and control system in accordance with stated principles.
European Atomic Energy Community safeguards are being appljed to material and facilities previously exported and subject to the Additional Agreement and to special nuclear material used in or produced through the use thereof. The agreement requires these safeguards to be applied to such material and facilities and special nuclear material produced through its use.
13
We would note that European Atomic Energy Community safeguards system, because of its continuing accountancy and materials control functicn for the European Atomic Energy Community countries, will remain one of the factors relevant to the judgment of the Executive Branch, under Section 126(1), 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 federal Republic of Germany.
B.
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 material, facilities 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 subject to the Additional Agreement for Cooperation. Article XI(1) and (3) of the November 8, 1958, Agreement for Cooperation provide that "No materials, 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 on or development of atomic weapons or for any other military purpose." The United States -- 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. The United States and other major nuclear suppliers have agreed in the London Nuclear Supplier Guidelines 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 device" (underlining supplied), and each notified the International Atomic Energy Agency to this effect. On November 20, 1984, the members of the Community adopted a common nuclear export policy accepting the London Nuclear Supplier Guidelines and stated that the principles of the Guidelines form a basic common discipline for the member states for their nuclear exports. This undertaking evidences the fact that all these nations equate any nuclear explosive device, regardless of function, as essentially equivalent to an " atomic weapon."
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 14
for any purposes.
Therefore, it is the Executive Branch view that criterion (2) or its equivalent is met with respect to the Federal Republic of Germany.
C.
Criterion (3)
Adequate physical security measures will be maintained with respect to such material or t
facilities proposed to be exported and to any special nuclear material used in or produced through the use thereof.
Following the effective date of any regulation promulgated 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 official regulations.
It is the judgment of the Executive Branch that the Federal Republic of Germany has established physical security measures which, as a minimum, meet those recommended in the International Atomic Energy Agency's INFCIRC/225/Rev.2, "The Physical Protection of Nuclear Materi al." Therefore, it is the view of the Executive Branch that criterion (3) is met.
D.
Criterion (41 No such material, facilities, or sensitive nuclear technology proposed to be exported, and no special nuclear material produced through the use of such material, will be retransferred to the jurisdiction of any other nation or group of nations unless the prior approval of the United States is obtained for such retransfer.
In addition to other requirements of law, the r
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.
1 Article XI(2) of the November 8, 1958, Agreement for Cooperation, i
which the Additional Agreement for Cooperation incorporates by reference by Article V, provides that no material (including equipment and devices). may be transferred beyond the control of the European Atomic Energy Community, unless the United States agrees.
Article II D of the Additional Agreement for Cooperation provides that special nuclear material produced through the use of U.S.-
supplied material may be exported to any nation outside the 15
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a
4 Community or to a group of nations, provided that such nation or group of nations has an appropriate Agreement for Cooperation with the United States or guarantees the peaceful use of the produced material under safeguards acceptable to the Community and the United States. The European Community's interpretation of this language is set out in an April 15, 1977, letter to the Department of State from Fernand Spaak, Head of the Delegation of the Commission of the European Communities.
This interpretation is that the European Community Supply Agency will, prior to any proposed transfer, 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 which is " appropriate."
During discussions with representatives of the European Community held in Washington on November 1, 1978, the European 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 or nations had an appropriate Agreement for Cooperation with the United States or safeguards acceptable to both parties.
Therefore, it is the Executive Branch view that, with regard to the proposed export and special nuclear material produced through its use, criterion (4) is met.
With respect to transfers within the Community, it should be noted that the use of the word " group of nations" in criterion (4) makes clear that no retransfer consent right is required within a group of nations under this criterion. With respect to this provision the Senate report states:
i It should be noted that under the U.S.-European Atomic Energy Community Agreements, the United States does have a right of prior approval on retransfers of certain material outside of the European Atomic Energy Community.
It should also be noted that paragraph 4 does not require prior approval with respect to transfers within the Community, consistent with U.S. policy of treating that Community as a single entity.
l The Congressional intent not to require U.S. consent rights for transfers within the European Community is also clear in section 123a(5) of the Atomic Energy Act, as amended, since it requires that the United States seek a guarantee "by the cooperating party" (which in this case is European Atomic Energy Community as a whole).
E.
Criterion (5)
No such material proposed to be exported and no special nuclear material produced through the 16 i
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 proposed retransfer does not involve reprocessing.
Criterion (5) is, therefore, not applicable.
F.
Criterion (6)
No such sensitive nuclear technology shall be exported unless the foregoing conditions shall be applied to any nuclear material or equipment which is produced or 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 retransfer does not involve sensitive nuclear technology. Criterion (6) is, therefore, not applicable.
XII. Analysis of Section 128 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 International Atomic Energy Agency 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.
The Federal Republic of Germany as a party to the Treaty on the Non-Proliferation of Nuclear Weapons, has agreed to accept International Atomic Energy Agency safeguards on all peaceful nuclear activities and have implemented that commitment through agreement with the International Atomic Energy Agency.
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EMBASSY OF SWITZERLAND WASHINGTON D.C.20008 SCHWEIZERISCHE BOTSCHAFT 29aocathedral Avenue N W.
AMBASSADE DE SUISSE 651.510/653.0/513.1BRD-AB/BS July 21,1993 U/U/FEI Ref.:
BY HAND Mr. Edward T. Fei Acting Director of the Office of Nuclear Non-Proliferation Policy U.S. Depanment of Energy Forrestal Building 1000 Independence Ave., S.W.
Washington, D.C. 20585
Dear Mr. Fei:
In the course ofits plutonium recycle program Nordostschweizerische Kraftwerke AG (NOK) had loaned from SIEMENS, KWU (Germany) plutonium, which is not subject to U.S. prior consent rights.
NOK now wishes to redeliver to SIEMENS about 146 kg of fissile plutoniua4 out of surplus material that becomes available during the reproces'ing of NOK spent fuel at La Haeue in s
the time period 95/96. This plutonium is subject to U.S. prior consent rights.
i The transfer of spent fuel assemblies to La Hague had previously been approved with MB-10 RTD/EU (SD)-34,41,55 and 69.
I Upon return to the SIEMENS MOX fabrication plant at Hanau, Germany, this material will be used for thermal MOX-recycle within the European Community.
As the concerned plutonium is already at La Hague we confirm that there will be no addi-tional shipment of plutonium from Switzerland to the European Community for the perform-ance of this redelivery.
We hereby ask you to take note of this plutonium return and request your approval.
Sinecrely yours, FOR THE AMBASSADOR OF SWITZERLAND Dr. Christoph von Counselor for Science and Technology cc: Mrs. Christiane Flingou, EURATOM Supply Agency
DRAFT Mr. Edward T. Fei Acting Director i
Office of Nonproliferation Policy Office of Arms Control & Nonproliferation U.S. Department of Energy Washington, DC 20585 P.ef:
Your 7/26/93 Memo to WClements, et al.; Request for Subsequent f
Arrangements Under the NNPA of 1978
~
Dear Mr. Fei:
The Nuclear Regulatory Commission has reviewed the subsequent arrangement request from Switzerland for the transfer of 146 kilograms of plutonium, derived from U.S.-origin material, from France to Siemens (KWU), Germany for fabrication of mixed uranium-plutonium oxide (M0X) fuel assemblies for use as power reactor fuel within the European Community.
We understand the plutonium is intended to replace an equivalent amount of fissile plutonium, not of U.S.
origin, that Siemens had previously loaned to Swiss reactor operator Nordostschweizerische Kraftwerk AG.
The Commission understands that the Department of Defense has completed a preliminary review under Section 133 of the Atomic Energy Act and has no objection to the approval of the subsequent arrangement, but has not yet communicated formal comments to this effect. We also understand that this subsequent arrangement will not be approved until the Secretary of Defense or his designee has made this communication.
Based on this understanding, and contingent apon the Department of Defense not objecting, the Commission does not object to the proposed subsequent arrangement. We would like to be notified if the Department of Defense identifies any problem with the subject request.
Sincerely, Ronald D. Hauber, Assistant Director Exports, Security, and Safety Cooperation Office of International Programs l
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