ML20209E165
| ML20209E165 | |
| Person / Time | |
|---|---|
| Issue date: | 03/25/1985 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML20209D524 | List:
|
| References | |
| FOIA-85-409, TASK-PINV, TASK-SE SECY-85-107, NUDOCS 8504050299 | |
| Download: ML20209E165 (26) | |
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kQ Of C f o, March 25, 1985 ***** SECY-85-107 POLICY ISSUE (Notation Vote) l t
For: The Commission From: William J. Dircks Executive Director for Operations
Subject:
RETRANSFERS FOR REPROCESSING (FROM SWITZERLAND TOFRANCE)
Purpose:
To obtain the Co'mmission's concurrence in the attached response to. DOE.
Discussion: On March 13, the staff received the attached request (Appendix A) from DOE involving the following proposed retransfers:
Transferors/Transferees Quantity From Kernkraftwerk Gosgen-Daniken in 96 BWR assemblies Switzerland to COGEMA's new UP-3 containing 38,000 or existing UP-2 reprocessing kgs of uranium and facility at La Hague, France 390 kgs of produced plutonium From the Nordostschweizerische 100 PWR assemblies Kernkraftwerk AG, Beznau I and II containing 30,938 facilities in Switzerland to kgs of uranium and COGEMA new UP-3 or existing 290 kgs of plutonium UP-2 facility From the Bernische Kraftwerke AG 64 BWR assemblies facility in Switzerland to containing 11,297 COGEMA new UP-3 or existing kgs of uranium and UP-2 facility 93 kgs-of~plu onium CONTACT: 0 W. Upshaw, IP '
49-24724 (3%'
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The Comission 2
~ 0ur review of the DOE analysis discloses that the issues -
involved in these requests are essentially the same as those in similar Swiss reprocessing requests (SECY-84-127 and 83-440) to which the Comission did not object.
That the Commission authorize the dispatch of the draft response to DOE at Appendix B.
Scheduling: The NRC review period expires April 2.
William 9,. Dircks Executive Director for Operations -
Appendices:
A. DOE Analysis dtd 3/12/85 ,
B. Draft response to DOE Commissioners'. comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, April 5, 1985.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Thursday, March 28, 1985, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be. apprised of when comments may be expected.
DISTRIBUTION:
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Washington, D.C. 20585 lyEl$D x3 pu 13 ,W 26 MEMORANDUM m . . M .R 1 ! h v' TO: Mr. Archibald Andrews Of fice of ExportfpfdN,nistration Department of Commerce P.O. Box 273 Washington, D.C. 20044 Ms. Sheila Buckley OSD/ISA Pentagon Mr. Carl Stoiber OES/NEC Department of State Mr. Thomas Gabbert NWC/INA Arms Control and Di'sarmament Agency Of fice of International Programs Nuclear Regulatory Commission FROM: Michael D. McDonough f dh, Office of International Nuclear '8 Non-Proliferation Policy
SUBJECT:
Request for Subsequent Arrangements Under the NIIPA of 1978 Attached for your review and comments is an analysis of subsequent arrangements involving requests from the Government of Switzerland for U.S. approval to transfer spent fuel assemblies from the Gosgen and Beznau Nuclear Power Stations to France for reprocessing.
In~accordance with the President's Nonproliferation Policy Statement of July 16, 1981, the Department of Energy pro-poses to approve these transfers since the necessary sta-tutory - requirements are met.
We would appreciate your response concerning these requests as soon as possible but no later than the 20 day period called for by the interagency procedures.
Attachment
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ANALYSIS OF RETRANSFER OF SPECIAL NUCLEAR MATERIAL Prepared by.the Office of Nuclear Non-Proliferation Policy, International Affairs United States-Department of Energy Proposed-Transferors:
Kernkraf twerk Gosgen-Daniken AG, Switzerland Nordostschweizerische Kernkraftwerk AG, Switzerland Bernische Kraftwerke AG, Switzerland Proposed Transferee:.
The Government of France on behalf of the Euratom Supply Agency origin of the enriched uranium:
artment of Energy Contracts Number UES/SD/1, United States UES/SD/2, andDep/SD/102 UES
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' TABLE OF CO'NTENTS Page INTRODUCTION 1 I.
II. SYNOPSIS OF THE PROPOSED RETRANSFERS 1 III. POLICY OF THE EXECUTIVE BRANCH 2 IV. EVALUATION OF THE PROPOSED RETRANSFERS 2 4
V. CONCLUSION Annex A: MB-10 Requests for Approval Annex B: Section 127 of the Atomic Energy Act of 1954, as amended Annex C: Section 131 of the Atomic Energy Act ,
of 1954, as amended Annex D: Safeguards Implementation
. ,. t I. INTRODUCTION The Department of Energy has received a request from the Government of Switzerland that the U.S. approve retransfer of U.S.-origin spent-fuel assemblies from nuclear power plants in Switzerland to France for the purpose of reprocessing and storage of the -separated uranium cnd plutonium.
The proposed retransfers are " subsequent arrangements" as defined in Section 131.a.(2) of the Atomic Energy Act of 1954, as amended. As raquired by Section 131.a.(1), the proposed retransfers will be analyzed to determine whether the arrangements will be " inimical to the common defense and security." They will also be analyzed with
-regard to other relevant provisions of the Atomic Energy Act of 1954, so amended.
II. SYNOPSIS OF THE PROPOSED RETRANSFERS The following materials are included in the proposed retransfers of spent nuclear fuel:
From Kernkraftwerk Gosgen-Daniken AG Fuel . Type and Quantity 96 RWR Assemblies
-Total U 38,000 kgs U-235 330 kgs U-235 Isotopic Content 0.87%
Produced Pu 390 kgs Shipping Dates August 1985 -May 1987 From Nordostschweizerische Kraftwerk AG, Beznau I and II Fuel Type and Quantity 100 PUR Assemblics Total U 30,938 kgs U-235 308 kgc U-235 Isotopic Content 1.0 %
Produced Pu 290 kgs Shipping Dates Sept. 1985 -Dec.1986 From Bernische Kraftwerk AG Fuel Type and Quantity 64 BWR Assemblies Total U 11,297 kgs U-235 105 kgs U-235 Isotopic Content 0.95 %
Produced Pu 93 kgs Shipping Data Sept. 1985 -July 1987 The utilities propose that the irradiated fuel assemblies, now at the r3 actor site in Switzerland, be transferred to the COGEMA plant in France for chemical reprocessing and recovery of uranium and' plutonium.
The recovered uranium and plutonium will be retained by COGEMA at its plant.
In accordance with arrangements with Switzerland, any future transfer or uIe of the recovered uranium and plutonium will be subject to the prior consent of the U.S. Government.
4 III. POLICY OF THE EXECUTIVE BRANCH The policy of the current Administration on the non-proliferation in his statement of . nuclear explosives was outlined by the President of July 16, 1981. The President made ~some statements which are In particular, partinent to the consideration'of these retransfers.
ha- stated that:
"We must re-establish this nation as a predictable and reliable partner for peaceful nuclear cooperation under adequate safeguards. This is essential to our non-If we are not such a partner, other proliferation goals.
countries will tend to go their own ways and our influence ~
vill diminish. This would reduce our effectiveness in gaining the support we need to deal with proliferation problems.
To attain-this objective, I.am:
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 when necessary statutory requirements are met.
Requestirg that the Nuclear Fegulatory Commission act expeditiously on these matters.
The Administration-will also not inhibit or setback civil reprocessing and breeder reactor developments abroad in nations with advanced nuclear power programs where it does not constitute a proliferation risk."
it Also, the Executive Branch has advised interested countries that
- would expect to give favorable and prompt consideration to requests of the nature-of the pending Swiss retransfers to France'when the necessary statutory requirements are met, l
p IV. EVALUATION OF THE PROPOSED RETRANSFERS The proposed retransfer have been reviewed to determine whether they notisfy the statutory criteria in Section 127 and 131 of the Atomic
! Energy Act of 1954, as amended.
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 Disarmament Agency, the Nuclear Regulatory the Commission, and the Departments of Commerce and Defense, Department of Energy has considered whether the proposed retransfers
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l will result in a significant increase of the risk l
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, cf proliferation beyond that which existed at the time that '
cpproval 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 to Switzerland or any other state without explicit U.S. consent, these approvals will not result in a significant increase in ' the risk of proliferation.
Mare specifically, and with regard to the question of proliferation risk, the plutonium separated in the reprocessing facility will remain in France 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 controlling retransfers within the European Community of separated'special nuclear material by a commitment from the non-EURATOM shipping country that:
(1) 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.
(2) Any direction by the shipper to the reprocessor for the ,
transfer or use of the recovered.special nuclear material- ,
will be subject to the prior approval of the United States.
Switzerland, a non-EURATOM shipping country, agrees to these conditions bnced upon the processor's contractual pledge to hold the spent fuel, rcprocess it, and then use or transfer the recovered material only in accordance with the shipper's instructions. 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 of the U.S.-EURATOM Agreenent for Cooperation, the prior approval of the . United States would 'tue 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, auch approval will only be~ granted under terms consistent with the provi-sions of the Act, including Section 131 Further, a number of other factors were considered in this case tha t a re relevant to the judgment that the proposed retransfers will'not result in a cignificant. increase in the risk of proliferation. In particular, at ths multinational and international level, France has evidenced a
. cooperative attitude in fostering non proliferation objectives. For OxImple, France supports International Atomic Energy Agency (IAEA) sa f e-
-guards, and adheres to the Nuclear Supplier's Guidelines. Moreover, while not a par.ty to the Treaty on the Non-Proliferation of Nuclear Wecpons (NPT),. France has stated,that it will-act as if it were a party.
Switzerland is a member of,the IAEA, has ratified the NPT, and cdheres to the Nuclear Suppl-iers Guidelines.
V. CONCLUSION Tha Department of Energy has also consulted with the Department Theof State on the non-proliferation aspects of these retransfers.
Department of State concurs that U.S. non proliferation objectives would best be fostered by approving the proposed retransfers.
In summary, it is our view that' the terms of the proposed subsequent arrangement sa tirfy the requirements set forth in Sections 127 and 131 of the Atomic Energy Act of 1954, as amended, and will not result in a significant increase in the risk of proliferation. ~
Further dstailed discussion of these requirements may be found in Annexes B through D of this analysis.
Accordingly, based on the various factors 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 (ACDA does not intend to prepare a Nuclear Proliferation Assessment Statement with regard to' this case),
the Nuclear Regulatory Commission, and Departments of Defense and Commerce that the proposed " subsequent arrangements" will not be inimical to the common defense and security and will indeed enhance cuch defense and security through the continuing encouragement of cooperation in the pursuit of common non proliferation and energy objectives.
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AG/1930 l
APPROVAL FOR RETRANSFER OF SPECIAL NUCLEAR MATERIAL OF UNITED STATES ORIGIN The opproval of the United States Department of Energy is hereby requested
- to the transfer i froo Government of Switzerland, represented by Bundesamt fGr Energiewirtschaft (for Kernkraft-werk G5sgen-D&niken AG, (Transf e ro r) Switzerland) l Co Euratom Supply Agency (for COGEMA, La Haoue, Reprocessino Plant, France) i (Transferee) of United States supplied special nuclear material in the quantity and cooting the specifications described below (hereinafter called "specified
! catorial") which the transferor ob tained pursuant to its Agreement for
, Csoperation f or Civil Us es with the United S tates Government. Material was originally obtained by transferor from m ,c under Contract o r Order Number ATf 49-14) UEs/so/102 .
i SPECIFIED MATERIAL
~
(Fill in where applicable)
Identification ~
Pu-Conte;t (in Grams)
MarEids, T'o t al. U U-235, L' M3 I;;;;;i: 7 :::::
~
- ? (In G rams )- " -- 2 2 5 , "-222, :: Pu Fural Type. No., etc. (In Gram's) 38'000'000 330'000 390'000 PWR assemblies
- 96 The sp,ecified material, which is now located at _ Gasgen-o&niken
_, will
, upon app rova-1 hereby by the United States Department of Energy be transferred for
! :: :: ci ,. ; in the course of August 1985 through May 1987 and will be accep ted for use at ta Haaue, Reorocessino plant
- the following specified purpose:
I .
Reprocessing of the 96 irradiated fuel assemblies The trans fe ro r, vich the concurrence of the trans f eree , will notif y within
- 30 dcys af ter the aforesaid date,the United States Department It'is of Energy agreed l of che actual date and quantity of material transferred. ~
by the trans feror and trans f eree that as of that date the specified oncerial vill cease to be subject to'the Agreement f'or.Cooperacion and
- contract indicated above and will be subj ect to the trans fe ree's Agreement for Cooperation for Ciy,$1 Uses with the United States Government.
EUR) !T M SUFPLY' AGENCY BUNDESAMT FOR ENERGIEWlRTSCH' AFT-l 4 O bd L '
10/29/1984 (Late)
JV e)
(Trans f e ro r) (Ti"lans f e rc e )of transferee'A 4(Da
( s" Agreement a, ca Abovo reques ted . transf er under Article 16. '
for Cooperation f or Civil Uses with the United States Covernment approved, provided physical transfer is consummated by (Fo r. the United States Department of Energy)
-MBF10 Numb e r ATB/64 fSD)-(f'
- AG/1941 APPROVAL FOR RETRANSFER OF SPECIAL NUCLEAR MATERIAL OF UNITED STATE.S ORIGIN Tho' approval of the United States Department of Energy is hereby requested to the transfer .
.fren NORDOSTSCHWEIZERISCHE KRAFTWERKE AG. Nuclear Power Plant Beznau I and II (Switzerland)
(Transf eror) to COGEMA. La Haoue Reorocessing Plant (Frantpl (Transferee) of United States supplied special nuclear material in th e quantity and ihooting the spec 3.fications des cribed below (hereinafter called "specified natarial") which the trans feror ob tained pursuant to its Agreement Material for t Cooporation f or Civil Us es with the United States Government.
wcc originally obtained by transferor from USAEC ,
undar Contract or Order Number AT (49-14) UES/SD/1 .
SPECIFIED MATERIAL (Fill in where applicab le)
Identification MarEing, Total U U-235, U-233 Isotopic Percent No., etc. (In Grams) or Fu (In Grams)- 17-235, U-233, or Pu Fuol Tvoe 30 937 848 g U 308 102 g U 290 371 g Pu 100 PWR fuel. assemblies 235 vill
, The sp,ecified material, which is now located at Beznau i and II ,
upon approval hereby by the United States Department of Energy be transferred on or about Seotember 1085. followed by diffarant thinmente ,mtil Neo+o, t oord o r and will be ac cep ted for uas at La Haaue the f ollowin g s pe cified purp os e:
Reprocessing of the irradiated fuel assemblies The trans fe ro r, with the concurrence of the transferee, will notify within
- 30. dcys af ter the afores aid dat e, the United States Department of Energy of the actual date and' quantity of material transferred. It is agreed by th e transferor and transferee th at as of that date the specified caterial vill cease to be subj ect to the Agreement for CooperationAgreenent and contract indicated above and vill b e s ubj ect to the trans fe ree 's for Cooperation for Civil Us es with the United States' Government.
BUNDESAMT FOR ENERGIEWIRISCHAFT i. A@.td.q SUPPLY AGENCY m 3,f7 N OSTSCHWElZ. KRAFTWERKE AS H.saan a ea n n I2 l 2 Y+u k t (Date) (Tr sferee) '(Datp)
Abov V (T rar,hssfenatp d transf -j.}under Article f6- of transferee s .'g r ment for Coope 'ation for Civil Uses with the United States Govern =ent app rove d ,
provided ,hysical transfer is con sum =ated by
(*** the C91 t a r' G r a t e e. Deo art -e nt "o f E ne r ev i -.__ _ .-- -- _ _ __
~
. AG/1920 -
APPROV1L FOR RETRANSFER OF SPECIAL NUCLEAR MATERIAL' OF UNITED STATES ORIGIN The approval of the United States Department of Energy is hereby requested to the transfer from Bernische Kraftwerke AG, Viktoriaplatz 2, CH 3000 Bern 25, Switzerland (Transf ero r) repr. by BUNDESAMT FUER ENERGIEWIRTSCHAFT to COGEMA. Branche Retraitement. 8.P. 4. F-78141 V4117v-Villaennblav. France (Irana f ere e) repr.' by EURATOM SUPPLY AGENCY of United States supplied special nuclear material in the quantity and conting the specifications ~ described below (hereinafter called "specified anterial") which the transferor ob tained pursuant to its Agreement for Cooperation f or Civil Us es. with the United States Government. Material was originally obtained by t rans f eror f rom US-FRDA / US-DOE ,
under Contract or Order Number AT(49-14) UES / Sn? and 'ernort Itcense no XSNM-462.
SPECIFIED MATERIAL (Fill in where applicable)
Identification Maridin g , Total U U-235, U-233 Isotopic Percent Fuel Tvpe No., etc. (In Grams) or Pu (In Grams )- U-235, U-233, or Fi 64 irrad. . Serial marking (calcul-ated values including nuclear loss and production) assemblies LJ ...
type BWR 11,296,616. U235: 104,962. U-235/U:
Pu: 92,751. approx. 0.93 %
Tho specified material, which is now lo cated at Kernkraftwerk MUhlebero , will upon approval hereby by the United States Department of Energy be transferre+
on or ab out Seotember 1985 - July 1987 for use at Reorneessina olant of l_a Haane. France and will be accep ted for the following specified purpose: Reprocessing The transferor, with the concurrence of the transferee, will notify within-30 days'after the afor es aid dat e. the United States Department of Energy of the actual' date and quantity of material transferred. It is agreed j
by the transferor and transferee that ns of that date'the specified
, apterial .wi-ll ceas e to be subj ect to the Agreement f'or Cooperation and contract indicated above and will b e subj ect to the transferee's Agreement for Cooperation for Civil Us es with the United States Government.
for EU T SUPP Y AGENCY N. JOUSTEN BUNDESAMT FOR ECERG9/1RTSCHAFT 8- d (L.L '
M. WrI6. Nf4- [Y YKAA 22.10.84 L (Transferor) (Date) (Tz's s f e ree) g4 Datj)
Above reques ted transf er under Article Id. fof transferee's' Agreement for Cooperation f or Civil Uses with the United States Government approved, provided physical transfer is consummated by (For. the United States Department of Energy)
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ANNEX B.
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Annex B Section 127 of the Atomic Energy Act of 1954, as amended Ssction 127 (4) provides that the United States may approve a retransfer only if the recipient agrees that the transfer will be subject to the care conditions set forth in that section that would apply to export Therefore, the from the United States in the quoted export criteria.
word " export" (or a variation thereof) is equivalent to the word "re-transfer" (or a variation thereof) . EURATOM has agreed that the material U.S.- EURATOM proposed to be retransferred will become subject to the Agreements for Cooperation and therefore for the purpose of the dis-cucsion below, the material is treated under those a'greements as if it had been transferred from the United States.
Criterion (1)
"IAEA safeguards as required by Article III (2) of the Treaty will be cpplied with respect to any such material or facilities proposed to be exported, to any such material or facilities previously exported and
.cubject to the applicable Agreement for Cooperation, and to any special nuclear material used in or produced through the use thereof."
As a nuclear-weapons-state (NWS), France is not subject to IAEA safeguards ac required by Article III (2) of the Treaty. Therefore, it is the Executive Branch view that criterion (1) is met with respect to this export to France.
This does not mean, however, that the material proposed for export will not ba subject to sa feguards while in France. Under Article V of the Additional Agreement for Cooperation of 1960, as amended, which incorporates Articles XI, XII, and Annex B of the November 8, 1958, Joint Program Agreement, as (monded, the Community undertakes the responsibility of establishing and implementing a safeguards and control system designed to give maximum as-curance that any material supplied by the U.S. or generated from such cupply will be used solely for peaceful purposes (" EURATOM Safeguards System")
The Community is bound to consult and exchange experiences with the IAEA wi th ths objective of establishing a system reasonably compatible establishing and with that of maintaining a the latter. The Community is responsible for mutually (with respect to the U.S.) satisfactory and effective safeguards end control system in accordance with stated principles.
i EURATOM safeguards are being applied to material and facilities previously Gxported and subject to the U.S.-EURATOM Cooperation Agreements and to specia:
l nuclear material used in or produced through the use thereof. These agreement l
require these safeguards to be applied to such material and facilities and to the proposed export and special nuclear material produced through its use.
-Annex B 2 Furthermore, some--if not all--U.S.-supplied source and special nuclear material and special nuclear material generated through the use thereof may be subject -to the application of IAEA safeguards under the Agreement b tween France, EURATOM, and- the IAEA for application of safeguards to certain nuclear material in France which was signed-July 27, 1978. This Agreement shall enter into force one month after the Agency has received notification from both France and the European Community that their re-spsetive internal requirements for entry into force have been met, and
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the Director General shall promptly notify France and the Community of thm date on which it is to enter into force.
This agreement calls for the application of IAEA safeguards, essentially under INFCIRC/153 technical criteria, on source or special fissionable mnterial to be designated by France in facilities or parts thereof within France. This language is somewhat different from the U.S. and U.K.
"Volunt'ary Offers," under which such safeguards will apply on all nuclear fccilities, excluding only those facilities associated with activities with direct. national security significance. However, a-French official has in-dicated that, in principle, the French offer is no more limited than that of the U.K. and the U.S. but that, in practice, a higher proportion of material in France may be excluded because.of its proportionately larger number of fccilities .which process materials for bo.th military and civil use.
The eight non-nuclear weapons state menbers of the European Community and th3 United Kingdom are parties to the Treaty on the Non-Proliferation of Nuclear Weapons. Each of those eight states (Belgium, Denmark, the Federal Rspublic of Germany, Greece, Ireland, Italy, Luxembourg, and the Netherlands) thus undertook the obligation in Article III(l) of the NPT to accept safeguard of the IAEA on all nuclear material in all of its peaceful nuclear activities-cnd to enter into an agreement with the IAEA to that effect.
As permitted.by Article III(4) of the NPT, those eight 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 respon-aibility and authority to apply safeguards within their territories (rather then each state establishing and maintaining a national system of accounting for and control of nuclear material), EURATOM is also a party to that agreemen The agreement, af ter approval by the Board of Governors of the IAEA and the European Community and ratification by each of the original seven non-nuclear wecpon state members, entered into force on February 21, 1977.
A3 in the case of all safeguards agreements between the IAEA and non-nuclear-WDapon states pursuant to Article III(l) of the NPT, the agreement with EURATOM and its eight non-nuclear-weapon member states includes 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 agree-msnt are to be carried out.
a . ~ .-. -
'Annax B 3 In summary,.it is clear that each of the non-nuclear-weapons ctete members of EURATOM is a p. arty to the NPT, has fulfilled its obligation under Article II'I(l) of the NPT, and has an cgroement 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 safeguards in all ralsvant facilities.
1 Therefore, it is the. Executive Branch view that criterion (1) is met.
Prior to the coming into force of the IAEA's agreement with EURATOM and its member non-nuclear weapon states and the implementation by IAEA of that agreement, the Unit.d States continued to export enriched-uranium and other items-to the n.in-nuclear-weapon member. states of EURATOM, notwithstanding the obligation undertaken by the United States in Article III(2) of the NPT to do so on'ly if the source or special ficolonable material processed, used, or produced shal1 be subject to
~IAEA safeguards. The United States did so on the_ basis of a " rule of roeson"; which took into account the circumstances that those states ware NPT signatories and were conducting negotiations with IAEA of a cafeguards agreement in accordance with Article III(l) of the NPT. The .
~cpplication of EURATOM's safeguards within the territories of-those states was also taken into account.- The entry into force of the IAEA/ EURATOM p
cafcguards agreement, the progressive completion of facility attachments, and-the increasing application of ad hoc IAEA inspections as the-Agency mada resources available to implement the verification agreement, combined with the continued application of EURATOM safeguards in all facilities, allowed the Executive Branch'to adopt the view that the equivalent of criterion (1) was met. ,
W3 would note that the EURATOM safeguards system, because of its continuing accountancy and materials control function for the EURATOM Community coun-
'. trios, will. remain one of the factors relevant to the judgment of the Executive Branch, under Section 131a(1), that a proposed retransfer to one of these states'will not be inimical to the common defense and security.
r i criterion (2)
"No such material, facilities, or sensitive nuclear technology proposed to ba exported and subject to the applicable Agreement for Cooperation, and no epscial nuclear material produced through the use of such materials, facili-ties, or sensitive nuclear technology, will be used for research on or de-
- valopment of any nuclear explosive device."
l France and the United Kingdom are nuclear weapons state members of the Community. The proposed exports to France, as a NWS member, and any special nuclear. material produced through their use, is to be subject to the con-tinuing applicability of the United States-EURATOM Agreements for Cooperation.
Article XI(l) and (3) of the-November 8, 1958, Joint Program Agreement, as amanded, which is incorporated into the Additional Agreement provides that "no material, including equipment and devices, tran.ferred
- pursuant to this l Agreement" and'"no source or special nuclear material utilized in, recovered
_- _ , _ _ u - . _ . _ _ . _ . . . _. _ _ _ . _ _ _..._ _ ._ __ _ _ . _ . . _
Annex B 4 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." The U.S.--with the support of most other major nuclear supplier states--consistently has taken the position that nuclear explosive devices aro " atomic weapons," within the meaning of this guarantee, regarpless of ths intended end use of such devices. Both the United Kingdom and France as members of the Nuclear Suppliers Group, have agreed as a matter of national policy to authorize the export of so called " trigger" list items only upon formal governmental assurances from recipients explicitly excluding uses which would result in any nuclear explosive device (underlining supplied) and have notified the IAEA to this effect. This undertaking, together with other statements and actions, evidence the fact that both nations equate any nuclear explosive device, regardless of function, as essentially equivalent to an " atomic weapon."
Therefore, it is the view of the Executive Branch that the equivalent of criterion (2) is met with respect to France.
Each Non-Nuclear-Weapon State of the Community is a party to the NPT. As such, it is pledged not to develop nuclear explosive devices for any purpose.
This pledge applies to any material, facilities, and sensitive nuclear tech-nology previously exported or retransferred to such state by the United States and subject to the United States-EURATOM Agreements for Cooperation and to special nuclear material used in or produced through the use thereof.
Since the pledge will apply to the proposed export and to any special nuclear material produced through their use, it is the view of the Executive Branch that criterion (2) is met with respect to NNWS of the Community.
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 produced through the use thereof. Following the effective date of any regulations promulgated by the Nuclear Regulatory Commission pur-suant to section 304(d) of the NNPA, physical security measures shall be deemec adequate if such measures provide a level of protection equivalent to that required by the applicable regulations."
It is the judgment of the Executive Branch that each member state of the Com-munity has established physical security measures which, as a minimum, meet those recommended in the IAEA's INFCIRC/225/Rev.1, "The Physical Protection of Nuclear. Material."
EURATOM (for jointly operated research facilities) and all its member states have provided written physical security assurances which in the judgment of tha Executive Branch should be deemed to meet the requirements of Section 127(;
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Annsx B 5 .
cf the Atomic Energy Act, as amended, by providing assurance of a level of protection equivalent to that set forth by the Nuclear Regulatory Commission in Title 10, Section 110.43 of the Code of Federal Regulations pursuant to Section 304(d) of the Nuclear Non-Proliferation Act of 1978.
Thorefore, it is the view of the Executive Branch that criterion (3) is cat.
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 ;
ic obtained.for such retransfer. In addition to other requirements of inw, the United States may approve such retransfer only if the nation or group of nations designated to receive such retransfer agrees that it shell 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 c=snded by Article V of the latter Agreement, also provides that no matorial (including equipment and devices) may be transferred beyond the control of
- the EURATOM Community, unless the United States agrees.
Article 1 bis D of the Additional Agreement for Cooperation, as amended, pro-vides that special nuclear material produced through the use of United States-gupplied 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 Agreement for Cooperation with the United States or guarantees the psaceful 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, 1977, 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 determine 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 Community held in Washington on November 1, 1978, the European Community 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 appro-priate Agreement for Cooperation with the U.S. or safeguards acceptable to both parties.
Therefore, it is the Executive Branch view that, with regard to the proposed ratransfer and special nuclear material produced through its use, criterion (4) is met. However, it should be noted that EURATOM was expressly exempted from criterion (4) by virtue of Section 126.a.(2) of the Act for a period of 2 years from March 10, 1978, inasmuch as the Department of State notified
.thi Nuclear Regulatory Commission on July 20, 1978, that EURATOM has agreed
~
to n2gotiations with the United States as' called for in Section 404(a) of the -Nuclear Non-Proliferation Act of 1978. Executive Order 12506 extends
'tha' duration of the period specified in Section 126.a.(2) of the Act to March-10;.1986.
With respect to transfers within the Community, it should be noted that the
.uca of the words " group of nations" in criterion (4) makes clear that no retransfer consent right is required within a group of nations under this criteria. With respect to this provision, the Senate. report states:
"It should be noted that under the.U.S.-EURATOM Agreements, the United States does have a right of prior approval on retransfers , ,
of certain material outside of the EURATOM Community. .It should l also be -noted that paragraph 4 does not require prior approval with respect to transfers within the EURATOM Community, consist-ent with United States' policy of treating that Community as a, single (i.e. simple)' entity."
The Congressional intent, in. connection with exports, not to require consent rights for: transfers within the Community is also. clear in Section 123a(5) of the Act'since it requires that the United States seek a guarantee "by the cooperating party" (which, in this case, is EURATOM as a whole).
However, the Executive Branch, before passage of the Nuclea.r Non-Prolife ration Act of 1978, took the position that, with respect to retransfers into EURATOM, it was important to keep retransf'ers for reprocessing limited as much as possible to control the use and transfer of separated materials, especially plutonium. Therefore, the system of control by commitment from the non-EURATOM shipping country, as described earlier, was developed.
Criterion (5) .
"No such material proposed to be exported and no special nuclear material produced through the use of such material will be reprocessed, and no irradi-ated 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 these proposed subsequent arran.gements is, of course, for-reprocessing. However, EURATOM was expressly exempted from' criterion (5) by' virtue of Section 126.a.(2) of the Act for a period of 2 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 nego-tiations with the United States as called for in Section 404(a) of the Nuclear Non-Proliferation Act of 1978. Executive Order 12506 extends the duration of the period specified in the first proviso to Section 126.a.(2) of the Act to March 10, 1986. However, this exemption in no way derogates from'the rights which the United States has under the United States-EURATOM Agreements for Cooperation and under the commitments from the non-EURATOM shipping country. (Switzerland)
Therefore, in the view of the Executive Branch, criterion (5) it satisfied.
.r Annex B 7 i
Criterion (6) ,
"No such sensitive nuclear technology shall be exported unless the fore-going 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 esnsitive nuclear technology." .
Tho proposed retransfer does not involve sensitive nuclear technology.
Criterion (6) therefore, is not applicable.
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ANNEX C t
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- Annex C Section 131'of the Atomic Energy Act of 1954, as amended These requests fall under the definition of subsequent arrangements in Saction 131a(2)B of the Atomic Energy Act'of 1954, as amended (Act),
cnd require the concurrence of_the State Department, and consultation with the Arms Control and Disarmament Agency (ACDA), the Nuclear Regulatory
, Commission (NRC), the Department of Defense (DOD), and the Department of
- Ccmmerce (DOC). ACDA'may, if it deems necessary, prepare a Nuclear Proli-foration Assessment Statement.
-Notice of the proposed subsequent arrangements must appear for at least 15 days in the Federal Register before the retransfer is-approved, 1
together with the written determination of the Department of Energy (DOE) that the arrangements will not be inimical to the common defense and security. This determination has been made. The required Federal Rtgister notice'has been published. Under Section 131b(1) of the Act,.
this retransfer cannot be approved until the Committee on Foreign
! Affairs of the House of Representatives and the Committee on Foreign R31ations of the Senate have been provided with a repor't containing the ransons for entering into the arrangements and a period of 15 days of continuous session has elapsed; provided that the Secretary of Energy (by delegation from the President,under E.O. 12058) can declare an emer-gancy due to unforeseen circumstances, the period shall be 15 calendar days.
The applicable provisions of Section 131(b) of the Act stipulate important 3 criteria that must be taken into account prior to entering into any sub-esquent arrangement for the retransfer for reprocessing of U.S.-supplied l special nuclear materials or of special nuclear materials produced through
! U.S. assistance. While a distinction is drawn in Sections 131b(2)'and
- 131b(3) of the Act between facilities which have and have not reprocessed power reactor fuel assemblies or .that have or have not been the subject of subsequent arrangements prior to the enactment of the Act, common policy '
objectives clearly apply to both paragraphs.
These provisions pertain to whether the proposed retransfers, inter alia, will result in a significant increase in-the risk of proliferation beyond
- .that which exists at the time that approval is requested.
In particular, Section 131b(2) of the Act provides that:
"(2) The Secretary of Energy ~may not enter into any subsequent j arrangement for the reprocessing of any such material in a y facility which has not processed power reactor fuel assem-blies or been the subject of a subsequent arrangement therefore i
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Annax C 2 prior to the date of enactment of the Nuclear Non-Proliferation Act of 1978 or for subseque.nt retransfer to a non-nuclear-weapon state of any plutonium in quantities greater than 500 grams resulting from such reprocessing unless, in his judgment, and that of the Secretary of State, such reprocessing or retransfer will not r'esult 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 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."
Saction 131b(3) of the Act provides that:
"(3) the Secretary of Energy shall attempt to ensure, in entering into any subsequent arrangement for the reprocessing of any such material in any facility that has processed power r.eactor fuel assemblies or been the subject of a subsequent arrangement therefore prior to the date of enactment of the Nuclaar Non-Proliferation Act of 1978, or for the subsequent retransfer to any non-nuclear-weapon state of any plutonium in quantities greater than 500 grams resulting from such repro-cessing, that such reprocessi.ng or retransfer shall take place under conditions comparable to those which in his view, and that of the Secretary of State,_ satisfy the standards set forth in paragraph (2)."
The spent fuel in this case will be reprocessed at the COGEMA Facility.
It is possible that the fuel will be reprocessed in the new UP-3 facility instead of the existing UP-2 plant; therefore, this retransfer will be made under Section 131b(2) of the Act.
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Annex D Safeguards Implementation Th9 IAEA Secretariat has noted in its Annual Report for 1983 that in carrying cut the safeguards program of the Agency, it did not detect any anomaly-which
-would indicate the diversion of a significant amount of safeguarded nuclear
.Cator,ial, or the misuse of facilities or equipment for the manufacture of a nuclsar weapon or other nuclear explosive device. The Secretariat concluded that nuclear material under Agency safeguards remained in peaceful nuclear cctivities or was otherwise adequately accounted for.
Th9 Executive Branch In has nolight the reason to'believe of this that the and other' IAEAassociated factors Secretariat's report is not valid.
with the proposed transfers, the Executive Branch believes the framework of commitments, assurances, and safeguards is adequate for the purpose of thic proposed transfer.
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Mr. Michael D. McDonough Office of International Nuclear
~Non-Proliferation Policy U.S. Department of Energy Washington, D.C. 20585
Dear Mr. McDonough:
With reference to your memorandum of March 21, this is to advise you that NRC has reviewed and does not object to approval of the three requests to transfe.
a total of 290 reactor fuel assemblies from Switzerland to France for reprocessing, provided assurances are received from the Government of
- Switzerland that U.S. will have the right of approval over the subsequent use of the separated special nuclear material.
' Sincerely, James V. Zimmerman, Assistant Director Export / Import and International Safeguards Office of International Programs