ML20148N886
| ML20148N886 | |
| Person / Time | |
|---|---|
| Site: | 07002556 |
| Issue date: | 11/09/1978 |
| From: | Nosenzo L STATE, DEPT. OF |
| To: | James Shea NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| References | |
| NUDOCS 7811270274 | |
| Download: ML20148N886 (16) | |
Text
.,.
A (C 4
FRG f
DEPARTMENT OF STATE XSNM-lll3 Amendment No. 1 Washington, D C.
20!,20 BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS XsA/ni o///3 November 9, 1978 7j, ggg MEMORANDUM FOR JAMES R.
SHEA NUCLEAR REGULATORY COMMISSION Enclosed is an Executive Branch analysis covering a license application for the export of low-enriched uranium to the Federal Republic of Germany, a member of the Euro-pean Atomic Energy Community (EURATOM).
In accordance with the requirements of Section 126 a.
(1) of the Atomic Energy Act, as amended, the analysis addresses the extent to which the specific criteria in Sections 127 and 128 are met, as well as certain additional factor's envisaged by Section 126 a.(1).
The Executive Branch, on the basis of its review of mA this case, has concluded that the requirements of the Atomic Energy Act and P.L.95-242 have been met and it is the Executive Branch judgment that the proposed export would not be inimical to the common defense and security 7
of the United States.
Moreover, the members of EURATOM have adhered to the provisions of the Additional Agree-ment for Cooperation, as amended.
Therefore, the Execu-tive Branch recommends issuance of the requested export license.
8u 9 S Louis V.
N.osenz Deputy Assistant Secretary
Enclosure:
As statec'
&, //- /5
- 1[(
rW @y.
u.S. Ahe c 781127o WI
___u-l_"_'_'_
s.
XSNM-1113 Amendment No. 1 Country:
The Federal Republic of Germany Transaction:
The export of 2,557 kilograms of U-235 contained in 79,860 kilograms of uranium in the form of uranium dioxide enriched to a maximum of 3.2 percent U-235 Applicant:
EXXON Nuclear Company, Inc.
Date of Application:
December 14, 1977 Purpose of Export This low enriched uranium in the form of sintered uranium dioxide pellets will be shipped to EXXON Nuclear l
GmbH, Lingen, West Germany for fabrication into fuel assemblies, if not done by EXXON at its Richland Washing-ton facility or by Fabbricazion, Nucleari in Boscomorengo, Italy.
EXXON requests these alternetbe authorizations in order to provide flexibility for the assembly of the necessary fuel material for the Biblis Unit A Reactor lo-cated at Biblis, Federal Republic of Germany.
The total amount of low-enriched uranium requested exceeds the loading requirements by some ten percent to allow for possible production losses.
Shipments of the material are scheduled to begin in late 1978.
The material proposed for export is required ior two fuel reloadings of the Biblis Unit A, a pressurized water reactor with a net power output of 1146 Megawatts electric.
It began regular power operation in March 1975 and is owned and operated by the Rheinischwestfalisches Elektrizitatswerk AG of Essen, FRG.
=.
)
\\-
EUROPEAN COMMUNITY (EURATOM) EXPORT LICENSE APPLICATION ANALYSIS 1.
Applicable Agreement for Cooperation The material covered by the export license applica-tion is subject to all of the terms and conditions of the Additional Agreement for Cooperation Between the United States and the European Atomic Energy Commission (EURATOM),
l as amended.
This fact has been confirmed by letter from the Delegation of the Commission of the European Communities, a copy of which follows the description of the transaction.
The Additional Agreement entered into force on July 25, 1960.
The European Atomic Energy Community has adhered to all provisions of this agreement with the United States.
t t
2.
Extent to Which Export Criteria Are Met A.
Section 127 Criteria As provided in Section 127 of the Atomic Energy Act, the following criteria govern exports for peaceful nuclear uses from the United States of source material, special nuclear material, production or utilization facilities, and any sensitive nuclear technology:
Criterion (1)
"IAEA safeguards as required by Article III(2) of the Treaty will be applied with respect to any such material or facilities proposed to be exported, to any such material or facilities previously exported and subject to the appli-cable Agreement for Cooperation, and to any special nuclear material used in or produced through the use thereof."
The Federal Repudic of Germany, the six other non-nuclear weapons state members of the European Community and the United Kingdom are parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).
Each of those seven states (Belgium, Denmark, the Federal Republic of Germany, Ireland, Italy, Luxembourg and The Netherlands) thus undertook the obligation in Article III(1) of the NPT to accept safeguards of the IAEA on cl1 nuclear material in all of its peaceful nuclear activities and to enter into an agreement with IAEA to that effect.
As permitted by Article III(4) of the NPT, those seven states elected to join in concluding a single agreement with the IAEA (INFCIRC/193).
Since they had already assigned to the European Atomic Energy Community (EURATOM) the responsi-bility and authority to apply safeguards within their terri-tories (rather than each state establishing and maintaining a national system of accounting for and control of nuclear material), EURATOM is also a party to that agreement.
The agreement, after approval by the Board of Governors of the IAEA and the European Community and ratification by each of the seven states, entered into force on February 21, 1977.
As in the case of all safeguards agreements between the IAEA and non-nuclear weapon states pursuant to Article III(I) of the NPT, the agreement with EURATOM and its seven non-nuclear-weapon member states includes provision for the com-pletion by the parties of " subsidiary Arrangements", setting forth in detail the manner in which the safeguards procedures called for in the agreement are to be carried out.
In prac-
s u
e tice, the Subsidiary Arrangements consist of a general part and, for each of the facilities and locations in which IAEA safeguards are to be applied to nuclear material pursuant to the agreement, individual " Facility Attachments".
The agreement calls for the parties to make every effort to achieve the entry into force of the " Subsidiary Arrange-ments" within 90 days of the entry into force of the agree-ment proper.
Extension of that period requires agreement among all the parties.
During the period since February-21, 1977, the parties have been negotiating the Subsidiary Arrangements, including Facility Attachments for the 205 facilities and locations which currently come within the purview of the agreement.
The general part of the Subsidiary Arrangements has been com-pleted and is in effect.
As of September 15, 1978, approxi-mately 145 of the Facility Attachments has entered into force and serve as the basis for IAEA safeguards activities at such facilities.
About 15 others had been agreed at the negotiating level and the remainder were under active dis-cussion.
The parties have agreed to several extensions of the period for completion of the Subsidiary Arrangements, in accordance with the agreement.
The latest such extension runs until February 20, 1979.
The EURATOM /IAEA agreement provides, as does every safe-guards agreement with the IAEA pursuant to Article III(l) of the NPT, the right to the IAEA to apply in all non-nuclear weapon states party to such an agreement, the procedures laid down in the agreement, including inspections, as soon as the agreement enters into force, even if the Subsidiary Arrange-ments are not in force.
The agreements do not impose on the IAEA any limitations of access, or frequency, of these in-spections prior to completion of Facility Attachments (see e.g.:
Articles 71 and 76 of the agreement with EURATOM and its member non-nuclear weapon states, INFCIRC/193).
The IAEA has, since the entry into force of the EURATOM /IAEA agree-ment, increasingly exercised this right to apply procedures and inspections.
The Agency's general approach is to carry out such in-spections so as to achieve the same verification goal which they would aim for normally under a Facility Attachment.
For example, frequency of visits would be related to timeli-
' ness goals.
The Agency does, of course, have manpower limi-tations in this regard, and generally places greater emphasis on facilities involving sensitive material.
In some facili-ties surveillance equipment is employed prior to completion of Facility Attachments, while in other cases inspector pres-y:. 0.id"
- r;,";L. _ = _ =
t L
ence must be relied upon.
In the non-nuclear weapon member states of EURATOM, all facilities with the ex-ception of a few research reactors (LEU-fueled or low power) and other research installations have been inspected by IAEA.
In summary, it is clear that each of the non-nuclear weapons state members of EURATOM is a party to the NPT, has fulfilled its obligation under Article III(l) of the NPT, and has an agreement in force with the IAEA in accordance with Article III(4) of that treaty under which the IAEA has clear rights, which are being exercised, to apply safe-guards in all relevant facilities.
Therefore it is the Executive Branch view that cri-terion (1) is met.
Prior to the coming into force of the IAEA's agree-ment with EURATOM and its member non-nuclear weapon states and the implementation by IAEA of that agreement, the US continued to export enriched uranium and othe'r itcms to the non-nuclear weapon member states of EURATOM, notwith-standing the obligation undertaken by the US in Article III(2) of the NPT to do so only if the source or special fissionable processed used or produced shall be subject to IAEA safeguards.
The United States did so on the basis of
" rule of reason", which took into account the circum-a stance that those states were NPT signatories and were conducting negotiations with IAEA of a safeguards agree-ment in accordance with Article III(l) of the NPT.
The ap-plication of EURATOM's safeguards within the territories of those states was also taken into account.
More recently, the entry into force of the IAEA/ EURATOM safeguards agree-ment,.the progressive completion of facility attachments, and the increasing application of ad hoc IAEA inspections as the Agency made resources available to implement the verification agreement, combined with the continued ap-plication of EURATOM safeguards in all facilities, allowed the Executive Branch to adopt the view that the equivalent of criterion (1) was met.
We would note that the EURATOM safeguards system, be-cause of its continuing accountancy and materials control function for the EURATOM Community countries, will remain one of the factors relevant to the judgment of the Execu-tive Branch, under Section 126(a)(1), that a proposed ex-port to one of these states will not be inimical to the common defense and security.
+
Criterion (2)
"No such material, facilities, or sensitive nuclear technology proposed to be exported or previously exported and subject to the applicable Agreement for Cooperation, and no special nuclear material produced through the use of such materials, facilities, or sensitive nuclear technology, will be used for any nuclear explosive device or for research on or development of any nuclear explosive device."
Each non-nuclear-weapons state (NNWS) of the Community is a party to the Nuclear Non-Proliferation Treaty (NPT).
As such, it is pledgod not to develop nuclear explosive devices for any purpose.
This pledge applies to any material, fa-cilities and sensitive nuclear technology previously ex-ported to such state by the US and subject to the US-EURATOM Agreements for Cooperation and to special nuclear material used in or produced through the use thereof.
Since this pledge will apply to the proposed export and to any special nuclear material produced through its use, it is the view of the Executive Branch that criterion (2) is met with respect to the NNWS of the Community.
With regard to the two nuclear-weapons states (NWS) of the Community, the UK and France, the proposed export and any special nuclear material produced through its use, if trans-ferred to a NWS member, is subject to the continuing applica-bility of the US-EURATOM Agreements for Cooperation.
Article XI (l) and (3) of the November 8, 1958 Joint Program Agree-ment, as amended, which is incorporated into the Additional Agreement for Cooperation by virtue of Article V of the Additional Agreement, provide that "no material, including equipment and devices, transferred pursuant to this Agree-ment" 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 will be used for atomic weapons, pursuant to this agreement...
or for research or develop-ment of atomic weapons or for any other military purpose."
The US--with the support of most other major nuclear supplier states--consistently has taken the position that nuclear i
explosive devices are " atomic weapons", within the meaning of this guarantee, regardless of the intended end use of such devices.
Both the UK and France, as :l. embers of the Nuc itar Suppliers Group, have agreed as a matter of national policy to authorize the export of trigger list items "only
upon formal governmental assurances from recipients ex-plicitly excluding uses which would result in any nuclear explosive device" (underlining supplied) and have each notified the IAYA to this effect.
This undertaking, to-gether with other statements and actions, evidences the fact that both nations equate any nuclear explosive device, regardless of function, as essentially equivalent to an
" atomic weapon".
Therefore, it is the Executive Branch view that the equivalent of criterion (2) is met with respect to NWS of the Community.
s a
Criterion (3)
" Adequate physical security measures will be maintained with respect to such material or facilities proposed to be exported and to any special nuclear material used in or pro-duced through the use thereof.
Following the effective date of any 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."
It is the judgment of the Executive Branch that each mem-ber state of the Community has established physical security measures which, as a minimum, meet those recommended in the IAEA's INFCIRC/25/Rev.1, "The Physical Protection of Nuclear Material".
In addition, all states in the Community (except Den-mark, Ireland and Luxembourg) also are members of the Nu-clear Suppliers Group and, as such, have agreed to levels of protection consistent with INFCIRC/225/Rev.
l', to be ensured with respect to nuclear materials and equipment and facilities containing these materials, which are detailed in trans-missions of the Nuclear Suppliers Guidelines to the IAEA.
As reported to the Commission by Department of State letter dated October 26, 1978, the Government of the Federal Republic of Germany on October 17, 1978 provided the follow-ing generic assurance in the form of an Aide Memoire to the U.S.
Embassy at Bonn:
"The Federal Government confirms it will -- as in the past -- protect all deliverier of nuclear materials and installations supplied by the United States as well as all materials which are utilized er produced in connection with the exploitation of these matrrials or installations by physical safeguarding standards at least equalling those published in IAEA INFCIRC/2F'.
This physical safeguarding will be carried out pursuint to the London guidelines."
As the levels of protection called for in the Supplier Guidelines were derived directly from INFCIRC/225/ Revision 1 and were specifically designed to achieve levels of pro-tection consistent with the physical protection measures in INFCIRC/225/ Revision 1, it is the judgment of the Executive Branch that this assurance meets the requirements set forth by the Commission under 10 CFR Section 110.43, established pursuant to Section 304(d) of the Nuclear Non-Proliferation Act of 1978.
Therefore it is the view of the Executive Branch that criterion (3) is met.
\\"
d 6
Criterion (4)
"No such materials, facilities, or sensitive nuclear technology proposed to be exported, and no special nuclear material produced through the use of such material, will be retransferred to the jurisdiction of any other nation or group of nations unless the prior approval of the United States is obtained for such retransfer.
In addition to other requirements of law, the United States may approve such re-transfer 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."
Article XI(2) of the November 8, 1958 Joint Program Agreement, as amended, which is incorporated in the Additional Agreement for Cooperation, as amended, by Article V of the latter Agreement, provides that no material (including equip-ment and devices) may be transferred beyond the control of the EURATOM Community, unless the United States agrees.
Article 1 bis D of the Additional Agreement for Coopera-tion, as amended, provides that special nuclear material pro-duced through the use of US-supplied material may be exported to any nation outside the Community or to a group of nations, provided that such nation or group of nations has an appro-priate Agrerment 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--as set out in an April 15 letter to the Department of State from Fernand Spaak, Head of the Delegation of the Commission of the European Communities--is that the European Community Supply Agency prior to any proposed transfer will consult with the United States to find out whether, in the view of the US, the proposed recipient of such produced special nuclear material has an Agreement for Cooperation with the United States which is "ap;ropriate".
During discussions with representatives of the Community held in Washington on November 1, 1978, the European Com-munity confirmed that material subject to Article 1 bis D could not be transferred outside of the Community unless the U.S. agreed that the recipient countries or group of nations had an appropriate Agreement for Cooperation with the U.S.
or safeguards acceptable to both parties.
i e
a -
\\
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 words " group of nations" inLcriterion (4) makes clear that.no retransfer consent right is required within a group of nations under this criteria.
With respect to this provision, the Senate
]
report states:
"It should be noted that under the US-EURATOM Agreements, the US does have a right of prior approval on retransfers of certain material outside of the EURATOM Community.
It should also be noted that paragraph 4 does not require prior approval with respect to trans-fers within the EURATOM Community, con-sistent with US policy of treating that Community as a (single) entity."
The Congressional intent not to require US consent rights for transfers within the Community is also ' clear in Section 123 a.(5) of the Atomic Energy Act, as amended, since it re-quires that the US seek a guarantee "by the cooperating party" (which in this case is EURATOM as a whole).
~
It should be noted that since the US-EURATOM Agreements for Cooperation were authorized in accordance with Section 124 of the Atomic Energy Act, the Commission may continue to. issue. export licenses until March 10,11980 pursuant to.the authority in-the first proviso in Section 126a(2), even if criterion (4) were not met.
Criterion (5)
"No such materi_11 proposed to be exported and no special-nuclear material produced through the use of such material will be processed, and no irradiated fuel elements contain-l
~ing such material removed from a reactor shall be altered in form or content, unless the prior approval of the United States is obtained for such reprocessing or alteration."
EURATOM is expressly exempted from Criterion (5) _by virtue of Section 126(a)2 of the Act for a period of two years from March 10, 1978, since the Department of State notified the Nuclear Regulatory Commission on July 20, 1978, that EURATOM has agreed to negotiations with the United States as called for in Section 404 (a) of the Nuclear Non-Proliferation Act of 1978.
However, this exemption in no way derogates from the rights which the United States has under the US-EURATOM Agreements for Cooperaclon.
l
=
A_
l
.~
Criterion (6)
"No such sensitive nuclear technology shall be exported unless the foregoing conditions shall be applied to any nu-clear 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 an.v such exported sensitive nuclear technology."
The proposed export does not involve the transfer of sensitive nuclear technology.
Criterion (6) is, therefore, not applicable.
l l
l I
l i
4 B.
Section 128 Criterion Section 128 a. (1) of the Atomic Enargy Act establishes the following additional criterion:
"As a condition of con-tinued 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 ara maintained with respect to all peaceful nuclear activities in, under the jurisdiction of, or carried out under the control of such state at the time of the export."
It should be noted that this criterion only applies to exports to take place after March 10, 1980 or pursuant to an application submitted after September 10, 1979.
We anticipate that the recommended expe"ts will occur before March 10, 1980.
In any case, as Parties to the NPT, all non-nuclear weapon states that are members of the European Atomic Energy Community have agreed to acOept IAEA safeguards on all their nuclear activities.
Therefore it is the Executive Branch view that this criterion is met with respect to the non-nuclear weapon member states of the European Community.
As France and the United Kingdom are nuclear weapons states, this criterion is not applicable to them.
l
1
.~
a 3.
Additional Factors A.
Safeguards Implementation The IAEA Secretariat has noted in its Special Safe-guards Implementation Report that with regard to nuclecr material subject to IAEA safeguards, while some deficiencies exist in the system, no diversion of a significant quantity of nuclear macerial was detected in any of the 45 states in which inspections were carried out.
Although recognizing the need to corract existing deficiencies in safeguards in-plementation, the Executive Branch has no reason to believe that the IAEA Secretariat's report is not valid.
In the light of this and other factors associated with the proposed export, the Executive Branch believes the framework of com-mitments, assurances, and safeguards is adequate for the purpose of this export.
B.
Special Non-Proliferation and Other Foreign Policy Considerations None.
l
l
- M s
4.
Inimicality Judgment Based on review of the proposed export, it is the judgment of the Executive Branch that the proposed export will not be inimical to the common defense and security, and that the license should be issued.
~
.