ML20247G825
| ML20247G825 | |
| Person / Time | |
|---|---|
| Issue date: | 04/01/1998 |
| From: | Stoiber C NRC OFFICE OF INTERNATIONAL PROGRAMS (OIP) |
| To: | |
| References | |
| SECY-98-062, SECY-98-062-R, SECY-98-62, SECY-98-62-R, NUDOCS 9805200355 | |
| Download: ML20247G825 (99) | |
Text
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i POLICY ISSUE (Notation Vote)
April 1, 1998 SECY-98-062 EQB: The Commissioners FROM Carlton R. Stoiber, Director Office of International Programs
SUBJECT:
PROPOSED SECTION 123 AGREEMENT FOR PEACEFUL NUCLEAR COOPERATION WITH UKRAINE PURPOSE:
To advise the Commission of the staff's review of the above agreement and recommend Commission concurrence.
BACKGROUND:
Over the past several years, the U.S. has been pursuing closer nuclear-related cooperation with Ukraine, including development of an Agreement for Peaceful Nuclear Cooperation (Section 123 Agreement). Ukrainian participation (provision of turbines)in Russia's efforts to modify and complete the Bushehr reactors in Iran has been a significant impediment to finalizing such an Agreement.
During the visit of Secretary of State Madeleine Albright to Kiev on March 5 and 6,1998, the /
government of Ukraine provided assurances to the U.S. that it would not supply turbines or other reactor equipment for the Bushehr nuclear power project. This significant change in
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policy has effectively removed this impediment, revitalizing Executive Branch efforts to finalize a Section 123 Agreement with Ukraine.
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)( 0 fi f-6 Qnent with the International Atomic Energy Agency ( AEA) and has coopereted in its implementation. No safeguards issues of connquence have been identified by the IAEA althougn further improvements in their State System of Accounting and Contrc are needed and expected. 'The training und advice provided oy the U.S and by the IAEA seems to have been well received by Ukraine, and efforts are being Ladertaken to implement suggestions. However, availability of adequate resources in l Ukraine also cor tinues to be a major obstacle to long-term improvements.
1 leu Ukraine's plans to assist tran's nuclear prorjam, including the supply of turbines for Bushehr, have been of great concern to the U.S. and have effectively Llocked the possibiinty of concluding a U.S.-Ukraine peaceful nuclear cooperation agreement. Despite this concern and the negative impact on closer cooperation, Ukrainian authorities have been reluctant to cancel the turbine sats for both poUtical ar:d economic reasons. However, during Secretary of State A! bright's recent visit to Kiev, they changed their position, providing essurances ther they would not supply Iran's nuclear progrr,m (see Confidential State Department telegrams Kiev 236G and 2367, distributed separately). This change in the Ukrainian position on supply to Iran facilitated the " initialing" of the text of the twoposed U.S.-Ukraine Agreement during Secretary Alt,right's visit.
Cuba Ukrainian natiorials have performed main'enance and other support activities at the Juragua nuclear power reactor project in Cuba. Increased Ukrainian assistance to the Juragua picy. set could trigger Helms-Burten Act sanctions against Ukreinian companies as well as erode Congressional support for U.S.-Ukraine nuclear cooperation.
Although the U.S. does not have concems about the peaceful intent of the Juragua oroject or the Cuban nuclear program as a whole, the U.S. continues to oppose the project because it raises safety concems and is a serious political aggravant to closer U.S.-Cuban rclations.
Cuba is not an NPT party and has not waived into force the provisions of tha Treaty of Tlatelolco (Latin America Nuclear Free Zone Treaty), but has concluded an IAEA safeguards agreement for the Juragua project.
OIP has contacted the Executive Branch conceming possible Ukrainian activities at Juragua and has been advised that no significant activities in support of the project are apparent at this time.
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Agreement Snecifics Attachment 1 includes the DOS draft decision memorandum, the draft Department of l State / Department of Energy joint memorandum for the President, the draft Presidential determination memorandum, and the draft White House transmittal to the Congress.
Attachment 2 is the DOS' summary of the basic provisions of the Agreement. /4ttachment 3 is the text of the Agreement itself. Attachment 4 is a draft Memorandum of Law prepared by the i- DOS. Attachment 5 is a copy of the draft Arms Control and Disarmament Agency (ACDA)
Nuclear Proliferation Assessment Statement (NPAS). Attachment 6 is a criterion-by-criterion analysis of the Agreement's compliance with the provisions of Section 123 of the Atomic Energy i Act, as amended. All draft documents are reported to be current as of March 18,1998.
l . in sum, the proposed 30-year agreement is a model govemment-to-govemment Section 123
- agreement which provides a comprehensive framework for peaceful nuclear cooperation based on a strong mutual commitment to nuclear nonproliferation; it is essentially identical to the agreements with Brazil, Kazakhstan, and Romania that the Commission has recently reviewed l and approved. It permits the transfer of technology, material, equipment (including reactors),
l and components for nuclear research and nuclear power production. It gives the U.S. prior consent rights for retransfers, enrichment, and reprocessing, as required by U.S. law. It does not permit the transfer of any sensitive nuclear technology, restricted data, sensitive nuclear facilities, or major components thereof. In the event of termination, key conditions and controls continue with respect to material and equipment subject to the agreement.
l KevIcenes One key issue in regard to approval is the strength and durability of Ukraine's commitment to
. refrain from nuclear cooperation with Iran, including cancellation of the sale of turbines for the Bushehr reactor project being completed by Russia. Considerable pressure could mount on Ukraine's leadership if the economic loss to Ukraine's turbine manufacturer and other suppliers l is not made up by new orders. Another is the ability of the Ukrainians to provide resources necessary to effectively implement their non-proliferation-related commitments, including protection of nuclear materials, equipment, and technology that the U.S. may supply in the future.
If Ukraine's policy to refrain from supply to Iran should weaken or be revised, if Ukraine should undertake a supplier role in some other questionable nuclear project (e.g., in Cuba), or if l resource constraints should hamper implementation of Ukraine's non-proliferation-related l commitments after the Agreement is concluded, the US. could revise, suspend, or restrict l cooperation under the Agreement, as appropriate.
Resoun~e Implications l
As with other Section 123 Agreements, the obligations of the U.S.-Ukraine Agreement apply equally to both parties.' Thus, if Ukraine were to supply nuclear materials or equipment to the U.S., the U.S. must be able to give formal assurances to Ukraine that the imported materials or equipment (including uranium shipped directly or indirectly to the U.S. for enrichment and any special nuclear material produced from such uranium) will be used only for peaceful purposes, will be safeguarded and physically protected, will not be retransferred without prior Ukrainian approval, etc. Yet the infrastructure for tracking imports into the U.S. is incomplete (absent in
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the case of reactor and fuel cycle equipment). Over the next few years, for example, it is possible that the U.S. may need to modify the DOE /NRC funded Nuclear Materials Management Safeguards System (NMMSS) to help in giving needed assurances. No estimates have been made regarding potential costs to the NRC for modifying the NMMSS or -
for developing or enhancing similar assurance-related needs.
The Office of Intemational Programs (OIP) notes that implementation of this Agreement could ;
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stimulate additional requests from Ukraine for regulatory assistance from NRC, including both
, nuclear safety and safeguards-related assistance. At present, OIP is not able to estimate or l
predict the potential resource implications for NRC from assistance requests that may result from concluding this Agreement. However, OIP does expect that no more than a few export license applications will result as an outcome of the Agreement. OIP believes these few can be reviewed and processed without additional staff resources.
In the future, should significant resource implications result from this agreement, the staff will provide specific resource estimates for Commission review prior to undertaking new commitments.
CONCLUSION:
Ukraine has worked to establish and enhance its intemational non-proliferation credentials and controls over its Soviet-era nuclear inheritance. Its regional confidence-building initiatives demonstrate that Ukraine is committed to the principle of global non-proliferation. Broadening U.S. involvement with Ukraine serves our collective security interests and furthers U.S. non-proliferation and export control policies. However, close monitoring will be necessary of Ukraine's nuclear-related activities to ensure Ukrainian adherence to its non-proliferation commitments and its Agreement undertakings.
COORDINATION:
The Office of General Counsel has no legal objection. The Office of the Chief Financial Officer has reviewed this paper for resource implications and has no objection, and the Office of the Executive Director for Operations concurs in this paper.
RECOMMENDAT1Qlt OIP recommends that the Commission approve the proposed letter to the President (Attachment 7).
Carlton R. Stoiber, Director Office of Intemational Programs Attachments: 1. Draft State Department Decision, Presidential Determination, and Congressional Transmittal memoranda
- 2. Summary of Basic Provisions
- 3. Draft Agreement Text
- 4. Draft Memorandum of Law
- 5. Draft ACDA NPAS
- 6. NRC Staff Criterion-By-Criterion Analysis
- 7. Draft Chairman Letter to the President
6 Commissioners' completed vote sheets / comments should be provided directly to the Office of the Secretary by c.o.b. Wednesday. April 15.1998.
Commission staff office comments, if any, should be submitted to the Cotamissioners NLT Wednesday. April 8.1998. with an information 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.
DISTRIBUTION:
Commissioners OGC OlG OPA OlP OCA CIO CFO EDO REGIONS SECY I
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J Attachment 1 Draft State Department Decision Memorandum
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UNCLASSIFIED TO: The Secretary FROM: PM - Thomas E. McNamara
SUBJECT:
Proposed Agreement for Cooperation with Ukraine Concerning Peaceful Uses of Nuclear Energy ISSUE FOR DECISION This memorandum requests that you approve a proposed agreement for peaceful nuclear cooperation with Ukraine and that you sign, jointly with Secretary of Energy Pena (who has already signed), the Memorandum for the President at Tab 1.
The Memorandum for the President recommends that he make the requisite statutory determination regarding the proposed agreement, that he approve it, and that he authorize its signature and transmittal to the Congress. (A draft Determination, Approval and Authorization for signature by the President is at Attachment 1 of the Memorandum for the President at Tab 1.)
ESSENTIAL FACTORS The Atomic Energy Act of 1954, as amended, gives you and the Secretary of Energy a statutory role in advising the President on whether to authorize entry into agreements for peaceful nuclear cooperation. A copy of the proposed US-Ukraine agreement and a summary of its basic provisions are at Attachments 3 and 4, respectively, of the Memorandum for the President at Tab 1. ;
I The Nuclear Non-Proliferation Act of 1978 (NNPA) establishes specific requirements for new agreements for i l
peaceful nuclear cooperation. The proposed US-Ukraine l
agreement meets all requirements for new agreements established by the Act. (A Memorandum of Las is at Tab 2 of this memorandum.) We also believe the proposed agreement
e- 2 will serve US non-proliferation and other foreign policy interests.
l Provisions of the Proposed New Agreement l
l The proposed agreement with Ukraine provides a comprehensive framework for peaceful nuclear cooperation based on a strong mutual commitment to nuclear non-proliferation. The agreement, with an initial term of 30 years, permits the transfer of technology, material, equipment (including reactors) and components.for' nuclear research and nuclear power production. It provides for US consent rights to retransfers, enrichment and repiccessing as required by US law. It does not permit transfers of any sensitive nuclear technology, restricted data, or sensitive nuclear facilities or major critical. components thereof. In the event of termination, key conditions and controls continue with respect to material and equipment subject to the agreement.
The Department of State commits no new resources or personnel to the implementation of this agreement.
Ukraine's Non-Proliferation Policies and Practices Ukraine is a non-nuclear weapon state party to the Treaty on the Nonproliferation of Nuclear Weapons (NPT). Following the dissolution of the Soviet Union, Ukraine agreed to the removal of all nuclear weapons from its territory. It has a full-scope safeguards agreement in force with the International Atomic Energy Agency (IAEA) to implement its safeguards obligations under the NPT.
Environmental Considerations Section 407 of the NNPA directs that the United States seek to include in agreements for peaceful nuclear cooperation provisions for identifying environmental implications and protection of the international environment.
Article 12 (2) of the proposed US-Ukraine agreement satisfies section 407. Agreements for peaceful nuclear cooperation establish a legal framework for such cooperation without ,
committing either party to engage in any specific activity. {
No environmental documentation under Executive Order 12114 of 1 January 4, 1979 is required. l Submission to the President and Congressional Review Under the Atomic Energy Act the proposed agreement may be signed and transmitted to Congress only after the President has authorized its execution and determined in writing that the agreement will promote, and will not constitute an l
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.- i y unreasonable risk to, the common defense and security. The joint memorandum from you and the Secretary of Energy at Tab 1 will forward the agreement and other required documents for the President's consideration.
After Presidential approval, and completion by Ukraine of its own the two domestic parties. requirements, the agreement may be signed by The signed agreement, together with the President's determination, Congress for review.
must then be transmitted to the (A draft transmittal to the Congress, for signature by the President, is at Attachment 2 of the Memorandum for the President at Tab 1.) The agreement may be brought into force after 90 days of continuous session unless a joint resolution of disapproval is enacted. We believe that the agreement will be considered favorably by Congress.
Other Acency Views ACDA concurs in the proposed agreement. Its views and recommendations President at Tab 1. are at attachment 5 of the Memorandum for the As required by the Atomic Energy Act, ACDA Statement will also submit to separately a Nuclear Proliferation Assessment the President.
The Nuclear Regulatory Commission recommends approval of the agreement.
Its views are at attachment 6 of the Memorandum for the President at Tab 1.
RECOMMENDATION That you approve the attached proposed agreement for peaceful nuclear cooperation with Ukraine, and sign the joint memorandum at Tab 1 transmitting it to the President.
APPROVE: DIS?JPROVE:
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1 Attachment 1 Draft Joint State and Energy Department Memorandum for the President
i MEMORANDUM FOR: THE PRESIDENT FROM: Madeleine K. Albright Federico F. Pena
SUBJECT:
Proposed Agreement for Cooperation Between the United States of America and Ukraine Concerning Peaceful Uses of Nuclear Energy The United States and Ukraine have recently concluded negotiations on'an agreement for peaceful nuclear cooperation. This memorandum recommends that you sign the determination, approval and authorization at Attachment 1,
- which, pursuant to section 123 b. of the Atomic Energy Act of 1954, as amended, sets forth: (1) your approval of the proposed agreement; (2) your determination that performance of the proposed agreement will promote, and will not constitute an unreasonable risk to, the common defense and security; and (3) your authorization for execution of the agreement.
If you authorize execution of the agreement, it will be signed by representatives of the United States and Ukraine.
Afterward, in accordance with sections 123 b. and d. of the Act, it will be submitted to both Houses of Congress. A draft letter of transmittal to the Congress is at Attachment 2 for your signature. (This letter will be held until after the agreement is signed.) The agreement must lie i
before Congress for 90 days of continuous session. Unless a l joint resolution of disapproval is enacted, the agreement may thereafter be brought into force.
l The text of the proposed agreement is at Attachment 3.
It includes an agreed minute, which is an integral part of t
the agreement. A summary of basic provisions is at Attachment 4. The proposed agreement provides a comprehensive framework for peaceful nuclear cooperation between the United States and Ukraine under appropriate
' conditions and controls reflecting a strong common commitment to nuclear non-proliferation. The agreement has an initial term of 30 years and may be extended by agreement of the parties in accordance with their applicable requirements.
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The proposed agreement permits the transfer of technology, material (including low enriched uranium), ;
equipment (including reactors), and components for both nuclear research and nuclear power purposes. It does not permit transfers of any sensitive nuclear technology or facilities. In our judgment the proposed agreement meets all requirements for new agreements for peaceful nuclear cooperation set forth in section 123 a. of the Atomic Energy Act of 1954, as amended by the Nuclear Non-Proliferation Act (NNPA) of 1978.
The agreed minute contains certain important understandings relating to implementation of the agreement, including provisions regarding the implementation of safeguards and US fallback safeguards rights.
Section 407 of the NNPA directs that the United States seek to include in agreements for peaceful nuclear cooperation provisions for identifying environmental implications and protection of the international environment.
Article 12 (2) of the proposed agreement satisfies these provisions.
In accordance with the provisions of section 123 of the Atomic Energy Act, the proposed agreement was negotiated by the Department of State, with the technical assistance and concurrence of the Department of Energy and in consultation with the Arms Control and Disarmament Agency (ACDA). The views and' recommendations of the Director of ACDA are at Attachment 5. A Nuclear Proliferation Assessment Statement concerning the proposed agreement is being submitted to you separately by the Director of ACDA. The proposed agreement has also been reviewed by the members of the Nuclear Regulatory Commission. Their views are at Attachment 6.
Ukraine is a non-nuclear weapon state party to the Treaty on the Nonproliferation of Nuclear Weapons (NPT). Following the dissolution of the Soviet Union, Ukraine agreed to the removal of all nuclear weapons from its territory. It has a full-scope safeguards agreement in force with the International Atomic Energy Agency (IAEA) to implement its safeguards obligations under the NPT. A more detailed discussion of these and other significant actions that Ukraine has taken to demonstrate its commitment to nuclear non-proliferation is provided in ACDA's Nuclear Proliferation Assessment Statement.
In our judgment, the agreement text meets all US statutory requirements and will serve important US non-proliferation and other foreign policy interests. We recommend, therefore, that you determine, pursuant to section
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.. 3 123 b. of the Atomic Energy Act of 1954, as amended, that performance of the agreement will promote, and will not constitute an unreasonable risk to, the common defense and, security; and that you approve the agreement and authorize-its execution.
RECOMMENDATION That you sign the determination, approval and authorization at Attachment 1 and the transmittal to Congress at Attachment 2.
agreement itself is (The transmittal will be held until the signed.)
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4 Attachment 1 Draft Presidential Determination Memoranc um l
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MEMORANDUM FOR: THE SECRETARY OF STATE l THE SECRETARY OF ENERGY
SUBJECT:
Presidential Determination on the Proposed Agreement for Cooperation Between the United States of America and Ukraine i
l Concerning Peaceful Uses of Nuclear Energy l I have considered the proposed Agreement for Cooperation Between the United States of America and Ukraine Concerning Peaceful Uses of Nuclear Energy, along with the views, recommendations, and statements of the interested agencies.
I have determined that the performance of the agreement will promote, and will not constitute an unreasonable risk to, the common defense and security. Pursuant to Section 123 b. of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2153 (b)), I hereby approve the proposed agreement and authorize you to arrange for its execution.
William J. Clinton l
I Attachment 1 Draft White House Transmittal to Congress
l I Draft Transmittal Letter
- .~ j TO THE CONGRESS OF THE UNITED STATES:
l l I am pleased to transmit to the Congress, pursuant to sections 123 b. and 123 d. of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2153 (b), (d)), the text of a proposed Agreement for Cooperation Between the United States of America and Ukraine Concerning Peaceful Uses of Nuclear Energy, with accompanying annex and agreed minute. I am also !
pleased to transmit my written approval, authorization and determination concerning the agreement, and the memorandum of the Director of the United States Arms Control and Disarmament Agency with the Nuclear Proliferation Assessment ,
Statement concerning the agreement. The joint memorandum i submitted to me by the Secretary of State and the Secretary of Energy, which includes a summary of the provisions of the agreement and various other attachments, including agency views, is also enclosed.
The proposed agreement with Ukraine has been negotiated !
i in accordance with the Atomic Energy Act of 1954, as amended by the Nuclear Non-Proliferation Act of 1978 and as otherwise amended. In my judgment, the proposed agreement meets all statutory requirements and will advance the non-proliferation and other foreign policy interests of the United States. The
.. 2 agreement provides a comprehensive framework for peaceful i
nuclear cooperation between the United States and Ukraine under appropriate conditions and controls reflecting a strong common commitment to nuclear non-proliferation goals.
The proposed agreement with Ukraine permits the transfer of technology, material, equipment (including reactors) and components for nuclear research and nuclear power production.
It provides for US consent rights to retransfers, enrichment and reprocessing as required by US law. It does not permit transfers of any sensitive nuclear technology, restricted data, or sensitive nuclear facilities or major critical components thereof. In the event of termination key conditions and controls continue with respect to material and equipment subject to the agreement.
Ukraine is a non-nuclear weapon state party to the Treaty on the Nonproliferation of Nuclear Weapons (NPT) . Following the dissolution of the Soviet Union, Ukraine agreed to the removal of all nuclear weapons from its territory. It has a full-scope safeguards agreement in force with the International Atomic Energy Agency (IAEA) to implement its safeguards obligations under the NPT.
I have considered the views and recommendations of the interested agencies in reviewing the proposed agreement and
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.- 3 have determined that its performance will promote, and will 1 not constitute an unreasonable risk to, the common defense and security. Accordingly, I have approved the agreement and authorized its execution and urge that the Congress give it 3 favorable consideration. .
Because this agreement meets all applicable requirements of the Atomic' Energy Act, as amended, for agreements for peaceful nuclear cooperation, I am transmitting it to the Congress without exempting it from any requirement contained I in section 123 a. of that Act. This transmission shall constitute a submittal for purposes of both sections 123 b.
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and 123 d. of the Atomic Energy Act. The Administration is prepared to begin immediately the consultations with the Senate Foreign Relations and House International Relations Committees as provided in section 123 b. Upon completion of the 30-day continuous session period provided for in section 123 b.,
the 60-day continuous session period provided for in section 123 d. shall commence.
THE WHITE HOUSE,
Attachment 2 State Department Summary of Basic Provisions I
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SUMMARY
OF BASIC PROVISIONS OF THE AGREEMENT FOR COOPERATION BETWEEN THE UNITED STATES OF AMERICA AND UKRAINE .
CONCERNING PEACEFUL USES OF NUCLEAR ENERGY.
Article 1 contains definitions.
Article 2 sets forth the scope of cooperation in the use of nuclear energy for peaceful purposes. It provides that transfers of.information, material, equipment and components may be undertaken subject to the agreement and to such additional terms and conditions as may be agreed by the parties. A related understanding in the Agreed Minute provides that material, equipment or components transferred between the parties for peaceful purposes will be regarded as having been transferred pursuant to the agreement only upon confirmation by the recipient party that such item or items are to be subject to the terms of the agreement.
Article 3 provides for the transfer of information in a variety of fields involving the peaceful uses of nuclear energy. Restricted data may not be transferred under the agreement. Sensitive nuclear technology may not be transferred under the agreement unless the agreement is amended to provide for such transfer.
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,e Article 4 provides the basic enabling framework for the transfer of material, equipment and components. With some, stated exceptions, including small quantities for use as samples, standards, detectors, targets and such other purposes as may be agreed, transfers of special nuclear material to Ukraine will be limited to low enriched uranium, which may be transferred for use as fuel in reactors or reactor experiments, for conversion or fabrication or for such other purposes as may be agreed. No sensitive nuclear facilities or major critical components of such facilities may be transferred unless the agreement is amended to provide for such transfers. This article further provides that the quantity of special nuclear material transferred shall not at any time be in excess of quantities that the parties agree are necessary for specified purposes. Transfers of small quantities of special nuclear material are not subject to this limitation.
Article 5 requires the parties' agreement (1) on facilities for the storage of plutonium and uranium 233 (except in irradiaced fuel elements) or high enriched uranium transferred pursuant to the agreement or used in or produced through the use of material or equipment so tre:sferred; and (2) for the retransfer of any material, egoipment or components so transferred and special nuclear material produced through the use of material or equipment so
.. 3 transferred. The agreed minute states that the consent rights specified in article 5 with respect to special nuciear material produced through the use of nuclear material transferred, and not used in or produced through the use of equipment transferred, shall in practice be applied to that proportion of produced special nuclear material which represents the ratio of transferred material used in its production to the total amount of material so used.
Article 6 requires the parties' agreement (1) for the reprocessing of material transferred pursuant to the agreement and material used in or produced through the use of any material or equipment so transferred; (2) for the alteration in form or content, except by irradiation or further irradiation, of plutonium, uranium 233, high enriched uranium or irradiated source or special nuclear material so transferred or produced; and (3) for the enrichment of uranium so transferred or used in any equipment so transferred. The agreed minute states that the consent rights specified in article 6 with respect to special nuclear material produced through the use of nuclear material transferred, and not used in or produced through the use of equipment transferred, shall in practice be applied to that proportion of produced special nuclear material which represents the ratio of transferred material used in its production to the total amount of material so used.
.. 4 Article 7 requires each party to maintain adequate physical protection measures, in accordance with levels of protection set forth in the Annex to the agreement, with respect to all material and equipment subject to the agreement. The measures applied shall, as a minimum, provide protection comparable to that set forth in the current version of IAEA document INFCIRC/225 concerning the physical protection of nuclear material as agreed to by the parties. The Annex describes physical security levels applicable with respect to the use, storage and transport of nuclear materials classified as categories I (requiring the most stringent levels of protection), II and III. The parties agree to consult concerning the adequacy of these physical security measures and to identify agencies or authorities responsible for physical security. The provisions of this article shall be implemented in such a way as to avoid undue interference in the parties' nuclear activities and to be consistent with prudent management.
Article 8 contains a guarantee by each party that no material, equipment or components subject to the agreement will be used for any nuclear explosive device, for research on or development of any nuclear explosive device, or for any military purpose.
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.. o Article 9 requires application of IAEA safeguards with respect to all nuclear activities within the territory oft Ukraine, under its jurisdiction or carried out under its control anywhere. This article further requires source or special nuclear material transferred pursuant to the Agreement and source or special nuclear material used in or produced through the use of material, equipment or components so* transferred to be subject to the two parties' respective safeguards agreements with the IAEA. This article also contains provisions for fall-back safeguards. The agreed minute sets forth certain rights each party will have in the event IAEA safeguards are not being applied. Article 9 also requires each party to take measures to maintain and facilitate the application of safeguards. This article requires each party to maintain a material accounting and control system, the details of which shall be comparable to those set forth in IAEA document INFCIRC/153 (corrected).
Upon the request of either party, the other party shall report or permit the IAEA to report on the status of all inventories of material subject to the agreement. The article's provisions, finally, are to be implemented so as to avoid undue interference in the parties' nuclear activities
, and consistent with prudent management.
Article 10 provides that if an agreement between either party and another nation or group of nations provides such other l
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.- 6 nation or group of nations rights equivalent to any or all those set forth under articles 5 or 6 with respect to material, equipment or components subject to the agreement, the parties may, upon the request of either, agree that implementation of such rights will be accomplished by the other nation or group of nations.
Article 11 accords each party the right to cease cooperation, suspend or terminate the agreement, and require the return of any material, equipment or components transferred under the agreement and any special nuclear material produced through their use if the other party does not comply with article 5, 6, 7, 8, or 9, or terminates, abrogates or materially violates a safeguards agreement with the IAEA. Additionally, if Ukraine detonates a nuclear explosive device, the United States shall have the same rights as stated in the preceding i sentence. In the event a return is required by one party, the other party shall be reimbursed for fair market value.
Article 12 provides for consultations at the request of either party regarding the implementation of the agreement and the development of further cooperation in the peaceful uses of nuclear energy. It also provides that the parties shall consult on the environmental implications of activities under the agreement, and cooperate in protecting the international environment from radioactive, chemical or
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thermal contamination arising from such activities and in l
I related matters of health and safety.
- Article 13 provides for the settlement of disputes by negotiations between the parties.
4 Article 14 establishes a 30 year term for the agreement, which may be extended by agreement of the parties in accordance with their applicable requirements. It provides that the agreement may be terminated at any time by either party on one year's written notice to the other party. In the event of termination or expiration of the agreement, articles 5, 6, 7, 8, 9 and 11 shall continue in effect so long as items subject to the agreement remain in the territory, under the jurisdiction or under the control of the party concerned, or until the parties agree that such items are no longer usable for any nuclear activity relevant from the point of view of safeguards.
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Attachment 3 Draft Agreement Text 1
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AGREEMENT FOR COOPERATION BETWEEN THE UNITED STATES OF AMERICA AND UKRAINE CONCERNING PEACEFUL USES OF NUCLEAR ENERGY The Government of the United States of America and the Government of Ukraine; .
Reaffirming their support for strengthening nuclear non-proliferation measures worldwide; Mindful of their respective obligations under the Treaty on the Non-Proliferation of Nuclear Weapons ("NPT") to which both the United States of America and Ukraine are parties; Reaffirming their intention to work closely together and with other states to urge universal adherence to the NPT and full realization of the purposes of the preamble and of all the provisions of the Treaty; Reaffirming their commitment to ensuring that the international development and use of nuclear energy for
. peaceful purposes are carried out under arrangements that will to the maximum possible extent further the objectives of the NPT; Affirming their support of the objectives of the I
International Atemic Energy Agency ("IAEA");
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Recognizing the indispensable role of the safeguards system of the IAEA in the maintenance of an effective non-proliferation regime; Confirming their commitment to the strengthening of IAEA safeguards, including their readiness to take such steps as are necessary to allow the Agency.to apply safeguards effectively and efficiently and to attain its inspection goal at facilities in their respective jurisdictions:
Recognizing that they have decided to act in accordance with the principles contained in the Guidelines for Nuclear Transfers of the Nuclear Suppliers Group; Stressing the importance of Nuclear Suppliers Group principles on full-scope IAEA safeguards as a condition of ,
transfer to non-nuclear weapon states; on the control of dual-use items; and on the exercise of restraint in the export of sensitive items; Recognizing the importance of maintaining effective nuclear material control and accountancy and physical protection in accordance with international standards; I
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3 Desiring to cooperate in the development, use and control of
- peaceful uses of nuclear energy; and Mindful that peaceful nuclear activities must be undertaken with a view to protecting the international environment from radioactive, chemical and thermal contamination:
Have agreed as follows:
ARTICLE 1 - DEFINITIONS
, For the purposes of this agreement:
(A) " Byproduct material" means any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material; (B) " Component" means a component part of equipment or other item, so designated by agreement of the parties; ;
i (C) " Conversion" means any of the normal operations in the nuclear fuel cycle, preceding fuel fabrication and excluding enrichment, by which uranium is transformed from one chemical 4 t g ,
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4 form to another -- for example, from UF6 to UO2 or from -
uranium oxide to metal; (D) " Decommissioning" means the actions taken at the 'end of a facility's useful life to retire the facility from service in a manner that provides adequate protection for the health and safety of the decommissioning workers and the general public, and for the environment. These actions can range from closing down the facility and a minimal removal of nuclear material coupled with continuing maintenance and surveillance, to a complete removal of residual radioactivity in excess of levels acceptable for unrestricted use of the facility and its site; (E) " Equipment" meant any reactor, other than one designed or used primarily for the formation of plutonium or uranium 233, or any other item so designated by agreement of the parties; (F) "High enriched uranium" means uranium enriched to twenty percent or greater in the isotope 235; (G) " Low enriched uranium" means uranium enriched to less than twenty percent in the isotope 235;
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(H) " Major critical component" means any part or group of '
parts essential to the operation of a sensitive nuclear I facility; (I) " Material" means source material, special nuclear I material, byproduct material, radioisotopes other than byproduct material, moderator material, or any other such
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substance so designated by agreement of the parties; j (J) " Moderator material" means heavy water or graphite or beryllium of a purity suitable for use in a reactor to slow I down high velocity neutrons and increase the likelihood of further fission, or any other such material so designated by agreement of the parties; (K) " Parties" means the Government of the United States of America and the Government of Ukraine; (L) " Peaceful purposes" include the use of information, material, equipment and components in such fields as research, power generation, medicine, agriculture and industry but do not include use in, research on, or development of any nuclear explosive device, or any military purpose;
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(M) " Person" meant any individual or any entity subject to the jurisdiction of either party but does not include the parties to this agreementi (N) " Reactor" means any apparatus, other than a nuclear weapon or other nuclear explosive device, in which a self-sustaining fission chain reaction is maintained by utilizing uranium, plutonium or thorium or any combination thereof; (O) " Restricted data" means all data concerning (1) design, manufacture or utilization of nuclear weapons, (2) the production of special nuclear material, or (3) the use of special nuclear material in the production of energy, but shall not include data of a party which it has declassified or removed from the category of restricted datai (P) " Sensitive nuclear facility" means any facility designed or used primarily for uranium enrichment, reprocessing of nuclear fuel, heavy water production, or fabrication of )
nuclear fuel containing plutoniumi (Q) " Sensitive nuclear technology" means any information (including information incorporated in equipment or an important component) which is not in the public domain and which is important to the design, construction, fabrication, operation or maintenance of any sensitive nuclear facility, f . b4
1 7
or other such information which may be so designated by .
agreement of the parties; (R) " Source material" means (1) natural uranium, depleted uranium, thorium, or any other material so designated by agreement of the parties, or (2) ores containing one or more of the for.egoing materials in such concentration as'the parties may agree from time to time (S) "special nuclear material" means (1) plutonium, uranium 233, or uranium enriched in the isotope 235, or (2) any.other material so designated by agreement of the parties.
ARTICLE 2 - SCOPE OF COOPERATION
. 1. The parties shall cooperate in the use of nuclear energy for peaceful purposes in accordance with the provisions of this agreement and their applicable treaties, national laws, regulations and license requirements.
- 2. Transfer of information, material, equipment and components under this agreement may be undertaken directly l between the parties or through authorized persons. Such transfers shall be sub3ect to this agreement and to such additional terms and conditions as may be agreed by the parties.
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, ARTICLE 3 - TRANSTER OF INFORMATION
- 1. Information concerning the use of nuclear energy for peaceful purposes may be transferred. Transfers of information may be accomplished through various means, including reports, data banks, computer programs,
. conferences, visits, and assignments of staff to facilities.
Fields which may be covered include, but shall not be limited to, the following:
(A) Development, design, construction, operation, maintenance and use of reactors, reactor experiments, and decommissioning; (B) The use of material in physical and biological research, medicine, agriculture and industry; (C) Fuel cycle studies of ways to meet future world-wide civil nuclear needs, including multilateral approaches to guaranteeing nuclear fuel supply and appropriate techniques for management of nuclear wastes; (D) Safeguards and physical protection of materials, equipment, and components; Sul
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t sE) Health, safety and environmental considerations related to the foregoing; and i
1 (F) Assessing the role nuclear power may play in national energy plans.
- 2. This agreement does not require the transfer of any information which the parties are not permitted under their renpective treaties, national laws, and regulations to transfer.
- 3. Restricted data shall not be transferred under this agreement.
- 4. Sensitive nuclear technology shall not be transferred under this agreement unless provided for by an amendment to this agreement.
ARTICLE 4 - TRANSFER OF MATERIAL, EQUIPMENT AND COMPONENTS
- 1. Material, equipment and components may be transferred for applications consistent with this agreement. Any special nuclear material transferred to Ukraine under this agreement shall be low enriched uranium, except as provided in paragraph 4. Sensitive nuclear facilities and major critical components thereof shall not be transferred under this
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10 agreement, unless provided for by an amendment to this agreement.
- 2. Low enriched uranium may be transferred for use as fuel in reactor experiments and in reactors, for conversion or fabrication, or for such other purposes as may be agreed by the parties.
- 3. The quantity of special nuclear material transferred
. under this agreement shall not at any time be in excess of that quantity the parties agree is necessary for any of the following purposes: use in reactor experiments or the loading of reactors, the efficient 6nd continuous conduct of such reactor experiments or operation of reactors, and the accomplishment of other purposes as may be agreed by the parties.
- 4. Small quantities of special nuclear material may be transferred for use as samples, standards, detectors, targets and for such other purposes as the parties may agree.
Transfers pursuant to this paragraph shall not be subject to the quantity limitations in paragraph 3.
. S. The United states of America shall endeavor to take such actions as are necessary and feasible to ensure a reliable supply of nuclear fuel to Ukraine, including the export of
11 nuclear material on a timely basis and the availability of the capacity to carry out this undertaking during the period I of this agreement.
ARTICLE 5 - STORAGE AND RETRANSFERS
- 1. Plutonium and uranium 233 (except as contained in irradiated fuel elements), and high enriched uranium, transferred pursuant to this agreement or used in or produced through the use of material or equipment so transferred shall only be stored in a facility to which the parties agree.
I
- 2. Material, equipment and components transferred pursuant l I
to this agreement and any special nuclear material produced through the use of any such material nr equipment shall not be transferred to unauthorized persons or, unless the parties agree, beyond the recipient party's territorial jurisdiction.
ARTICLE 6 - REPROCESSING AND ENRICHKENT
- 1. Material transferred pursuant to this agreement and material used in or produced through the use of material or i equipment so transferred shall not be reprocessed unless the parties agree.
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- 2. Plutonium, uranium 233, high enriched uranium and irradiated source or special nuclear material, transferred pursuant to this agreement or used in or produced through the use of material or equipment so transferred, shall not be altered in form or content, except by irradiation or further irradiation, unless the parties agree.
- 3. Uranium transferred pursuant to this agreement or used in any equipment so transferred shall not be enriched after transfer unless the parties agree.
ARTICLE 7 - PHYSICAL PROTECTION
- 1. Adequate physical protection shall be maintained with respect to source or special nuclear material and equipment transferred pursuant to this agreement and special nuclear
.- material used in or produced through the use of material or equipment so transferred.
- 2. The parties agree to the levels for the application of physical protection set forth in the Annex to this agreement, which may be modified by mutual consent of the parties without amending this agreement. The parties shall maintain adequate physical protection measures in accordance with these levels. These measures shall as a minimum provide I
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protection comparable to the recommendations set forth in the current version, as agreed to by the parties, of IAEA Document INFCIRC/225.
- 3. The adequacy of physical protection measures maintained pursuant to this article shall be subject to review and consultations by the parties from time to time and whenever either party is of the view that revised measures may be required to maintain adequate physical protection.
4.
The parties will keep each other informed through diplomatic channels of those agencies or authorities having responsibility for ensuring that levels of physical protection for nuclear material in their territory or under their jurisdiction or control are adequately met and having responsibility for coordinating response and recovery operations in the event of unauthorized use or handling of material subject to this article. The parties will inform each other through diplomatic channels, as well, of the designated points of contact within their national authorities to cooperate on matters of out-of-country transportation and other matters of mutual concern.
- 5. The provisions of this article shall be implemented in such a manner as to avoid undue interference in the parties' nuclear activities and so as'to be consistent with prudent i
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I management practices required for the economic and safe conduct of their nuclear programs.
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l ARTICLE 8 - NO EXPLOSIVE OR HILITARY APPLICATION Material, equipment and components transferred pursuant to this agreement and material used in or produced through the use of any material, equipment or components so transferred shall not be used for any nuclear explosive device, for research on or development of any nuclear explosive device, or for any military purpose.
ARTICLE 9 - SAFEGUARDS
- 1. Cooperation under this agreement shall require the application of IAEA safeguards with respect to all nuclear activities within the. territory of Ukraine, under,its jurisdiction or carried out under its control anywhere.
Implementation of a Safeguards Agreement pursuant to Article III (4) of the NPT shall be considered to fulfill this requirement.
- 2. Source or sp'ecial nuclear material transferred to Ukraine pursuant to this agreement and any source or special nuclear material used in or produced through the use of material, equipment or components so transferred shall be subject to I .
4
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15 safeguards in accordance with the agreement between Ukraine and the IAEA for the application of safeguards in connection with the NPT, signed on September 21, 1995, and entered into force on January 22, 1998.
- 3. Source or special nuclear material transferred to the United states of America pursuant to this agreement and any source or special nuclear material used in or produced through the use of any material, equipment or components so transferred shall be subject to the agreement between the United States of America and the IAEA for the application of safeguards in the United States of America, done at Vienna November 18, 1977, entered into force on December 9, 1980.
- 4. If either party becomes aware of circumstances which demonstrate that the IAEA for any reason is not or will not be applying safeguards in accordance with the agreement as provided for in paragraph 2 or paragraph 3, to ensure effective continuity of safeguards the parties shall consult and immediately enter into arrangements with the IAEA or between themselves which conform with IAEA safeguards principles and procedures, which provide assurance equivalent to that intended to be secured by the system they replace, !
and which conform with the coverage required by paragraph 2 or paragraph 3.
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5.
Each party shall take such measures as are necessary to maintain and facilitate the application of safeguards provided for under this article.
- 6. Each party sha11* establish and maintain a system of accounting for and control of source and special nuclear material transferred pursuant to this agreement and source and special nuclear material used in or produced through the use of any material, equipment or components so transferred.
The procedures for this system shall be comparable to those set forth in IAEA document INFCIRC/153 (corrected), or in any revision of that document agreed to by the parties.
7 Upon the request of either party, the other party shall report or permit the IAEA to report to the requesting party on the status of all inventories of material subject to this agreement.
- 8. The provisions of this article shall be implemented in such a manner as to avoid hampering, delay or undue interference in the parties' nuclear activities and so as to be consistent with prudent management practices required for the economic and safe conduct of their nuclear programs.
f 17 ARTICLE 10 - MULTIPLE SUPPLIER CONTROLS If any agreement between either party and another nation or group of nations provides such other nation or group of nations rights equivalent to any or all of those set forth under Article 5 or 6 with respect to material, equipment or components subject to this agreement, the parties may, upon request of either of them, agree that the implementation of any such rights will be accomplished by such other nation or group of nations.
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ARTICLE 11 - CESSATION OF COOPERATION
- 1. If either party at any time following entry into force of this agreement:
l (A) does not comply with the provisions of Article 5, 6, 7, 8, or 9; or (B) terminates, abrogates or materially violates a safeguards
. agreement with the IAEAi the other party shall'have the rights to cease further cooperation under this agreement and to require the return of any material, equipment and components transferred under this 9
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18 agreement and any special nuclear material produced through their use.
- 2. If Ukraine at any time following entry into force of this agreement detonates a nuclear explosive device, the United States of America shall have the same rights as specified in paragraph 1.
- 3. If either party exercises its rights under this Article to require the return of any material, equipment or components, it shall, after removal from the territory of the other party, reimburse the other party for the fair market value of such material, equipment or components.
ARTICLE 12 - CONSULTATIONS AND ENVIRONMENTAL PROTECTION
- 1. The parties undertake to consult at the request of either party regarding the implementation of this agreement and the development of further cooperation in the field of peaceful uses of nuclear energy.
. 2. The parties shall consult, with regard to activities under this agreement, to identify the international environmental implications arising from such activities and i shall cooperate in protecting the international environment from radioactive, chemical or thermal contamination arising S
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I from peaceful nuclear activities under this agreement and in related matters of health and safety.
ARTICLE 13 - SETTLEMENT OF DISPUTES Any dispute concerning the interpretation or implementation of the provisions of this agreement shall be promptly negotiated by the parties with a view to resolving that dispute.
ARTICLE 14 - ENTRY INTO FORCE AND DURATION 1.
This agreement shall enter into force on the date on which the parties exchange diplomatic notes informing each other that they have completed all applicable requirements for its entry into force.
- 2. This agreement shall remain in force for a period of 30 years. This term may be extended for such additional periods as may be agreed between the parties in accordance with their applicable requirements. The agreement may be terminated at any time by either party on one year's written notice to the other party.
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- 3. Notwithstanding the termination or expiration of this agreement or any cessation of cooperation hereunder for any reason, Articles 5, 6, 7, 8, 9, and 11 shall continue in effect so long as any material, equipment or components subject to these articles remains in the territory of the party concerned or under'its jurisdiction or control anywhere, or until such time as the parties agree that such material, equipment or components are no longer usable for any nuclear activity relevant from the point of view of safeguards.
IN WITNESS WHEREOF the undersigned, being' duly authorized, have signed this Agreement.
DONE at , this day of 19 ,
, in duplicate, in the English and Ukrainian languages, both texts being equally authentic.
FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF UNITED STATES OF AMERICA: UKRAINE:
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4 ANNEX Pursuant to paragraph 2 of Article 7, the agreed levels of l physical protection to be ensured by the competent national authorities in the use, storage and transportation of the ;
materials listed in the attached table shall as a minimum include protection characteristics as below:
Category III ,
Use and storage within an area to which access is controlled.-
I l Transportation under special precautions including prior
( arrangements among sender, recipient and carrier, and prior
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[ agreement between entities subject to the jurisdiction and j l
i regulation of supplier and recipient states, respectively, in case of international transport specifying time, place and procedures for transferring transport responsibility.
Category II Use and storage within a protected area to which access is controlled, i.e., an area under constant surveillance by guards or electronic devices, surrounded by a physical barrier with a limited number of points of entry under I
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appropriate control, or any area with an equivalent level of physical protection.
Transportation under special precautions including prior arrangements among sender, recipjent and carrier, and prior agreement between entities subject to the jurisdiction and regulation of supplier and recipient states, respectively, in case of international transport, specifying time, place and procedures for transferring transport responsibility.
Category I Material in this category shall be protected with highly reliable systems against unauthorized use as follows:
Use and storage within a highly protected area, i.e., a protected area as defined for category II above, to which, in addition, access is restricted to persons whose trustworthiness has been determined, and which is under surveillance by guards who are in close communication with appropriate response forces. Specific measures taken in this context should have as their objective the detection and prevention of any assault, unauthorized access or unauthorized removal of material.
- 6 3
Transportation under special precautions as identified above for transportation of categories II and III materials and, in addition, under constant surveillance by escorts and under conditions which assure close communication with appropriate response forces, t
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A M (1 Qp Ap Oh t
I AGREED HINUTE During the negotiation of the Agreement for Cooperation Between the United States of America and Ukraine Concerning Peaceful Uses of Nuclear Energy (" Agreement") signed today, the following understandings, which shall be an integral part of the Agreement, were reached.
Coverage of Agreement Material, equipment and components transferred from the territory of one party to the territory of the other party, whether directly or through a third country, will be regarded as having been transferred pursuant to'the Agreement only upon confirmation, by the appropriate government authority of the recipient party to the appropriate government authority of the supplier party, that such material, equipment or components will be subject to the Agreement.
For the purposes of implementing the rights specified in Articles 5 and 6 with respect to special nuclear material produced through the use of nuclear material transferred pursuant to the Agreement and not used in or produced through the use of equipment transferred pursuant to the Agreement, i such rights shall in practice be applied to that proportion 1
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2 of special nuclear material produced which represents the l
I ratio of transferred material used in the production of the special nuclear material to the total amount of material so used, and similarly for subsequent generations.
Safeguards If either party becomes aware of circumstances referred to in i paragraph 4 of Article 9, either party shall have the rights listed below, which rights shall be suspended if both parties
- agree that the need to exercise such rights is being satisfied by the application of IAEA safeguards under arrangements pursuant to paragraph 4 of Article 9:
(1) To review in a timely fashion the design of any equipment transferred pursuant to the Agreement, or of any facility which is to use, fabricate, process, or store any material so transferred or any special nuclear material used,in or produced through the use of such material or equipments (2) To require the maintenance and production of records and of relevant reports for the purpose of assisting in ensuring accountability for material transferred pursuant to the Agreekent and any source material or special nuclear material
- used in or produced through the use of any material, equipment or components so transferred; and l fa?
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(3) To designate personnel, in consultation with the other party, who shall have access to all places and data necessary to account for the material in paragraph 2, to inspect any equipment or facility referred to in paragraph 1, and to install any devices and make such independent measurements as may be deemed necessary to account for such material. Such personnel shall, if either. party so requests, be accompanied by personnel designated by the other party.
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FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF UNITED STATES OT AMERICA: UKRAINE:
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Attachment 4 Draft Memorandum of Law l
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DRAFT MEMORANDUM OF LAW
Subject:
Circular 175: Authority to Conclude an Agreement for Cooperation between the United States and Ukraine Concerning Peaceful Uses of Nuclear Energy The accompanying Circular 175 Action Memorandum requests the Secretary to approve the conclusion of the proposed Agreement for Cooperation between the United States and Ukraine Concerning Peaceful Uses of Nuclear Energy. Circular 175 authority to negotiate agreements of this type was granted on December 9,1977, and confirmed on March 13,1978, after passage of the Nuclear Non-Proliferation Act of 1978 (P.L.95-242).
Statutory authority for negotiating and concluding agreements for peaceful nuclear cooperation is provided by section 123 of the Atomic Energy Act of1954, as amended (AEA). The AEA and the Nuclear Non-Proliferation Act of 1978 (NNPA) also set forth substantive conditions that must be included in agreements for cooperation, as well as the domestic procedures for obtaining Executive Branch concurrence and for consulting with Congress prior to entry into force.
Substantive Conditions Section 123 of the AEA, as amended by the NNPA, sets forth certain substantive requirements for agreements for cooperation. Sections 402 and 407 of the NNPA set forth supplementary requirements. The provisions contained in the proposed agreement and its accompanying agreed minute, which is an integral part of the agreerr.ent, satisfy these legal requirements as follows:
(
- Safeguards are mandated in perpetuity by article 9(2) on transferred items and on special nucle.ar material used in or produced through the use of such items, as required by section 123(aXI) of the AEA. The agreement relies primarily on International Atomic Energy Agency (IAEA) safeguards under the safeguards agreement entered into between Ukraine and the IAEA in connection with the Nuclear Non-Proliferation Treaty. " Fall-back" IAEA or U.S.
safeguards are provided for in the event the IAEA is not or will not be applying safeguards under that agreement.
-- Full scope IAEA safeguards as a condition ofcooperation are mandated by article 9(1), as required by section 123(aX2) of the AEA.
-- A guaranty against explosive or military uses of transferred items and special nuclear material used in or produced through the use of such items is set fonh in article 8, as required by section 123(aX3) of the AEA.
- A U.S. right to the retum of transferred items and special nuclear material used in or produced through the use of such items is provided for in article 11, as required by section 123(aX4) of the AEA. This right is triggered if Ukraine should detonate a nuclear explosive 4
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devl,c, fail to comply with the agreement for cooperation, or terminate, abrogate, or ,
materially violate its IAEA safeguards agreement.
- A guaranty that transferred items and special nuclear material used in or produced.
through the use of such items will not be transferred to unauthorized persons or beyond the jurisdiction or control of Ukraine without U.S. consent is set forth in article 5(2), as required by section 123(a)(5) of the AEA. A retransfer consent right over Restricted Data (RD)is not provided because RD transfers are prohibited under anicle 3(3) of the agreement.
- A guaranty that the physical security of transferred items and special nuclear material used in or produced through the use of such items will be adequately maintained is set forth in article 7, as required by section 123(a)(6) of the AEA. The annex to the agreement establishes minimum levels of protection to serve as a benchmark.
-- A guaranty that specified nuclear materials may not be reprocessed, enriched, or altered in form or content without U.S. consent is provided for in article 6, as required by section 123(a)(7) of the AEA. (In view of the prohibition against post-transfer enrichment, the agreement also satisfies section 402(a) of the NNPA, which states the conditions for such enrichment.) As in other agreements for cooperation, irradiation is excluded from the scope -
of the alteration consent right.
- A guaranty of a right of prior U.S. approval over facilities for the storage of specified nuclear materials is provided for in article 5(1), as required by section 123(a)(8) of the AEA.
-- The transfer of sensitive nuclear technology is excluded by article 3(4), so section 123(a)(9) of the AEA is inapplicable. Similarly, section 402(b) of the NNPA precludes the transfer of major critical components of facilities for uranium enrichment, nuclear fuel
. reprocessing, or heavy water production unless an agreement for cooperation "specifically designates such components as items to be exported pursuant to (such) agreement." Article 4(1) of the proposed agreement precludes the transfer of such components.
-- Article 3(1)(E) of the proposed agreement authorizes the exchange ofinformation concerning " health, safety and environmental considerations" related to peaceful uses of nuclear energy, thereby satisfying the requirements of section 407 of the hWPA.
Article 10 is not required by the AEA or the NNPA, but it is consistent with these laws.
It provides that the parties may, by mutual agreement, arrange for a third party to exercise U.S. consent rights with respect to panicular items subject to the agreement if the third party
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already erdoys the same consent rights over those items. All applicable provisions of U.S.
law, including section 131 of the AEA goveming subsequent anangements, would have to be satisfied. Similar provisions have been included in all post-NNPA agreements for cooperation, although they have never been applied. )
i For the purpose ofimplementing rights specified in articles 5 and 6," produced" special nuclear material is defined in terms of proportionality in the agreed minute. Thus, if U.S.
3 material is used in a non-U.S. reactor, the special nuclear material produced will be attributed to the U.S. in the proportion of the U.S. material to the total amount of nuclear material used, and similarly for subsequent generations. It has been our consistent view that sections 12) and 127 of the AEA allow this concept of proportionality to be used in determining the reasonable application U.S. consent rights. We are aware ofno course of practice or legislative history to the contrary. Indeed, all of the agreements negotiated since the enactment of the NNPA in 1978 contain a similar proportionality provision.
The proposed agreement thus satisfies all the substantive requirements specified for agreements for cooperation by the AEA and the NNPA.
Reciprocal U.S. Obligations Certain provisions of the proposed agreement are drafted in a reciprocal manner. They would establish censin U.S. obligations to provide Ukraine with consent rights regarding storage, retransfers, reprocessing, and enrichment. There are also commitments by both parties relating to explosive or military uses of materials subject to the agreement, physical security, and the retum of material in certain circumstances.
If any transfers from Ukraine to the U.S. were to occur, the Executive branch would have the ability to meet these commitments in the agreement through its own authorities and those of the Nuclear Regulatory Commission (NRC). If any imported nuclear material, equipment, or components are to be held by the Department of Energy, the Executive branch will be able to implement the proposed undertakings directly. If any imported nuclear material, equipment, or components are to be held in the private sector, the NRC will have the regulatory authority to ensure that such items and, where relevant, the special nuclear material produced or used therein, are not used in a manner inconsistent with the agreement.
The United States can implement its obligations under article 5(2) conceming retransfers of Ukraine-origin items by using existing statutory authorities governing export licensing. Moreover, under section 161(i) of the AEA and section 201(f) of the Energy Reorganization Act of 1974, the NRC has wide authority to regulate any activity authorized pursuant to the AEA, including standards and restrictions goveming the design, location, and operation of facilities, as well as authority to guard against the loss or diversion of any special nuclear material and to prevent any use or disposition thereof that the NRC may determine to be inimical to the common defense and security. Thus, the NRC, for example, can require that no enriching or reprocessing of foreign-origin material be conducted in the U.S. without
! its consent, and the NRC could communicate with the Executive branch so that consent of the foreign govemment could be obtained.
In addition to this broad regulatory authority, an NRC license is needed for any person to transfer or receive in interstate commerce, transfer, deliver, acquire, own, use, possess, import or expon any source, special nuclear, or byproduct material or production or utilization facility. The NRC could ensure compliance with the U.S. obligations under the proposed
4 .
agreement by appropriately conditioning licenses. Furthermore, although the NRC does not .
currently license the importation or possession of components when they are to be used for nuclear purposes, it has sufficient authority to ensure necessary procedures are in place to, permit implementation of the agreement's requirements once the components are put to -
nuclear use, including restrictions on retransfers.
As a practical matter, since no reprocessing in the licensed sector is currently undertaken within the U.S., we do not anticipate cases where foreign-origin material would be reprocessed in the licensed sector or where separated plutonium or uranium-233 in the licensed sector would require a storage approval. In addition, since nuclear material of foreign origin is enriched and reprocessed only by the Department of Energy, it will be possible for the Executive branch to obtain any required consent from Ukraine.
The ability to track material is critical to the implementation of the U.S. obligations under the proposed agreement. Under the authority of section 161(o) of the AEA, the NRC has established a detailed tracking system applicable to foreign-origin nuclear material (10 CFR 70.54). If necessary, this tracking system could be supplemented to require reporting for tracking purposes of nuclear material used in or produced through the use ofcomponents transferred from Ukraine under this agreement.
Environmental Review No further action pursuant to the National Environmental Policy Act or E.O.12114 is required prior to signing this agreement, its submission to Congress, or its entry into force.
He agreement authorizes nuclear cooperation under certain safeguards and controls, but does not actually provide for the carrying out of any such cooperation or any export or import action. Moreover, existing generic studies have adequately addressed the environmental impact from the kinds of activities authorized under the proposed agreement. ' Finally,
A generic Environmental Impact Statement (EIS) has been prepared concerning the U.S.
program ofintemational civil nuclear cooperation, United States Nuclear Power Export Activities - Final Environmental Statement, ERDA-1542. Research and development 1 activities were analyzed separately in an August 1979 study that concluded that the .
I environment impact of ongoing and prospective research and development export activities on the global commons or in the U.S. is not such that further environmental review pursuant to the National Environmental Policy Act is required. In addition, a series of more specific studies has been conducted on particular aspects of the cooperation program. Global commons impacts from normal nuclear power plant operations and accidents were considered in: (1)
Final Environmental Statement relating to the Manufacture of Floating Nuclear Power Plants by Offshore Power Systems, Part III at 3.3.2.1 and 3.4, NUREG 0502 (December 1978); and (2) Liquid Pathway Generic Study, NUREG 0440 (February 1978). Potential effects of various waste disposal options on the global commons were considered in: (1) Final Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, NUREG-0575 (August 1979); (2) Environmental impact Appraisal by the Office of Nuclear Reactor Regulation Relating to the Modification of the Spent Fuel Pools at Salem Nuclear Generating
5 agreements for cooperation are excluded from the scope of E.O.12114, relating to environmental effects abroad, under section 2-5(v) of that order, since such agreements themselves do not " provide" the facilities referred to in the exemption. This exclusion is reflected by the exemption of actions taken pursuant to section 123 of the AEA or section' 404(a) of the NNPA from the Unified Procedures that implement this Executive Order. See section 5(h),44 Fed. Reg. 65660,61.
Domestic Procedums In accordance with section 123(a) of the AEA, the Department of State negotiated the agreement with the technical assistance and concurrence of the Department of Energy and in l consultation with ACDA, and circulated it to the NRC for its views. In addition, the i agreement has been circulated to the Departments of Commerce and Defense because of the l importance of the agreement and because of their statutory role in reviewing subsequent arrangements (which section 131(c) requires for the exercise of certain U.S. consent rights under the agreement). q The proposed agreement is an executive agreement subject to statutory procedures for congressional review prior to its entry into force. Rese procedures are set forth in section 123 of the AEA, as amended by the NNPA and by Title III of the Export Administration Amendments Act of 1985. If the agreement is authorized by the President, it will be signed and submitted to the Congress for review for 90 continuous session days (sections 123(b) and (d)). This period includes the 30-day period required for consultation with the House Foreign Affairs and Senate Foreign Relations committees concerning the Agreement's consistency with the substantive requirements of section 123. See, amendments to the AEA adopted in Export Administration Amendments Act, Pub. L. No. 99-64, Title III, f301(a),99 Stat.159, 160 (1985). The legislative history to these amendments expressly recognir.es that an agreement may be signed before the initiation of this consultation period. H. Conf. Rep. No.99-180 at 52-53, reprinted in 1985 U.S. Code Cong. & Admin. News 113. nat procedure has been followed in all post-1985 agreements. Unless Congress enacts a joint resolution of disapproval within the statutory review period (section 123(d)), the agreement will be brought into force through an exchange of notes.
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Stations (January 1979); (3) Tables S-3,10 CFR 51.20; and (4) Department of Energy EIS on
" Storage of Foreign Spent Power Reactor Fuel" (1978). See also Final Generic Environmental j Statement on Use of Recycle Plutonium in Mixed Oxide Fuel in Light Water Reactors, j NUREG-0002 (August 1976). '
6 For the foregoing reasons, it is my opinion that there is no legal obstacle to the proposed j
agreement being approved by the President, signed, and submitted to the Congress. ,
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i Todd F. Buchwald Assistant Legal Adviser for Political-Military Affairs March ,1998
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Attachment 5 Draft ACDA Nuclear Proliferation Assessment Statement (NPAS) 1 i
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1 DRAFT l l
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MEMORANDUM FOR THE PRESIDENT 1
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SUBJECT:
Views and Recommendations on the Proposed Agreement for Cooperation Between the United States of America and Ukraine Conecming Peaceful Uses of Atomic Energy Following the dissolution of the Soviet Union, Ukraine had one of the world's largest nuclear ;
arsenals deployed on its territory. However, Ukrainian leaders consistently maintained that l Ukraine had no intention of becoming a nuclear weapon state and by May 1992 all tactical j nuclear weapons had been moved to Russia. And in May 1992 Ukraine signed the Lisbon l
Protocol in which it pledged to adhere to th: NPT and to assume the rights and obligations of the 1 former Soviet Union under the 1991 START I Treaty.
l There was considerable debate in the Ukrainian Parliament prior to approval of these treaties and a few voices supported nuclear weapon status for Ukraine. However, the primary issues werc compensation for the nuclear material in the weapons delivered to Russia and a desire for security assurances. Ukraine asserted " administrative" control over these weapons, but never had, nor sought, operational control. The January 1994 U.S/ Russia / Ukraine Trilateral Statement resolved these matters ,-nd led to Ukraine NPT accession and START 1 entry into fome on l December 5,1994. By June 1996 all remaining nuclear warheads had left Ukraine. Ukraine supported the indefinite extension of the NPT in 1995 ar.d signed the Comprehensive Test Ban Treaty in 1996. Through these actions Ukrair.c contributed significantly to global and regional security and to U.S. nonproliferation objectives.
Ukraine has cooperated with the United States in a wide range of activities which advance nuclear nonproliferation objectives under the Department of Defense's Cooperative Threat Reduction Program. Among these projects is the establishment of the Science and Technology Center of Ukraine to engage former miliary scientists in civilian research and development.
Other activities include assistance to Ukraine in developing effective systems for the control of I nuclear exports and for the accounting and control of nuclear material. Ukraine has a large civilian nuclear program, including a few sites with significant quantities of high enriched uranium. No serious nuclear smuggling cases have occurred in Ukraine and the authorities are working with the U.S. Department of Energy (DOE) to upgrade physical security measures.
Ukraine has adopted a nationwide nuclear export control .,ystem consistent with the Guidelines 1
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of the Nuclear Suppliers Group (NSG), which Ukrainejoined in 1996. Through efforts by DOE and separate bilateral consultations on individual procurement cases, Ukraine is awarefhi o t e ts NSG obligations and of the actions necessary to implement these obligations. Ukrainian authorities have been responsive when U.S. officials have provided information about procurement attempts in Ukraine by countries with unsafeguarded r.uclear programs and have affirmed their NSG obligation to provide no assistance to unsafeguarded nuclear activities.
Ukraine's plans to assist Iran's nuclear program, including through the supply of turbines, have been of concern to the United States. Ukraine was informed that the United States could not conclude a peaceful nuclear cooperation agreement because ofits planned nuclear cooperation with Iran -- a country who we believe is seeking nuclear weapons. Ukrainian authorities fully understood this U.S. position, but were reluctant to cancel the turbine sale due to fears of serious political and economic costs. The United States has now received a high level assurance that Ukraine will refrain from nuclear cooperation with Iran including cancellation of the sale of turbines for the Bushehr reactors being provided by Russia. This was a difficult decision and there will be continuing pressure on Ukraine to reverse it. In the unlikely event that Ukraine should act inconsistent with these assurances, the United States has the recourse of suspending any cooperation under the proposed Agreement. The United States should also consult with Ukraine about any credible reports that its firms are providing support for other power reactor exports of concern such as Russian sales to Cuba or Chinese sales to Pakistan.
Ukraine's commitment to responsible nuclear nonproliferation policies, with particular emphasis on its decision to refrain from nuclear cooperation with Iran, stmngly supports a U.S. decision to enter into the proposed Agreement. Ukraine's efforts to implement effective IAEA safeguards, physical protection measures, and nuclear export controls have not reached a maximum level of
- effectiveness. Ilowever, important progress has been made injust a few years due to the active support of Ukraine's leaders. The agreement provides a framework for continuing U.S.-
Ukrainian consultations on nuclear nonproliferation. It allows for an expansion of our civil nuclear cooperation with Ukrainc and demonstrates the benefits that can accruc to countries with strong commitments to nuclear nonproliferation. This agreement also helps to fulfill U.S.
obligations under Article IV of the NPT to engage in the fullest possible civil nuclear cooperation with NPT parties.
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In conclusion, entry into force of the proposed Agreement will serve important U.S. foreign policy and national security interests with particular emphasis on nuclear nonproliferation. I '
recommend that you approve the proposed Agreement, that you determine that the performance of the proposed Agreement will promote, and will not constitute an unreasonable risk to, the common defense and security, and that you authorize the signature of the proposed Agreement.
John D. Holum
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DRdFT l
MEMORANDUM FOR THE PRESIDENT l
SUBJECT:
Nuclear Proliferation Assessment Statement for the Proposed Agreement for Cooperation Between the United States of America and Ukraine Concerning I Peaceful Uses ofNuclear Energy As required by section 123 a. of the Atomic Energy Act of 1954, as amended,I am submining to
. you an unclassified Nuclear Proliferation Assessment Statement (attached) with respect to the Proposed Agreement for Cooperation Between the United States of America and Ukraine Concerning Peaceful Uses of Nuclear Energy. After providing background information on the 4 nuclear programs and nuclear nonproliferation policies of Ukraine (Part 1), this statement I l examines the applicable Icgal requirements (Part II), relevant policy issues (Pan lii), and arrives at certain conclusions (Pan TV).
j Ukraine has been strongly commined to nuclear nonproliferation from the July 16,1990, 1 Declaration on Ukrainian National Sovereignty and as demonstrated through Ukraine's j adherence to START I and to the NPT on December 5,1994. All nuclear weapons from the '
fonner Soviet Union were removed from Ukraine by June 1996. Ukraine has upgraded its
- system for the protection, control, and accounting of nuclear material and has adopted a l nationwide nuclear expon control system in conformance with the principles of the 35-nation Nuclear Suppliers Group (NSG), which Ukrainejoined in 1996. In connection with the conclusion of the proposed Agreement, Ukraine affirmed its NSG obligation not to assist any l unsafeguarded nuclear facilities and agreed to refrain from nuclear cooperation with Iran.
l I have concluded that the proposed Agreement meets all statutory requirements. Further, I have reached a favorable assessment of the adequacy of the safeguards and other control mechanisms
, and the peaceful use assurances contained in the proposed Agreement to ensure that any assistance furnished thereunder will not be used to further any military or nuclear explosive purposc. .
John D. Holum .
Attachment:
As stated I
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NUCLEAR PROLIFERATION ASSESSMENT STATEMENT Pursuant to Scction 123 a. Of the Atomic Energy Act of 1954, as amended, With Respect to the Proposed Agreement for Cooperation Between the Govemment of the United States of America and Ukraine Conceming Peaceful Uses of Nuclear Energy
'Ihis Nuclear Proliferation Assessment Statement relates to the proposed Agreement for Cooperation Between the Government of the United States of America and Ukraine Conceming Peaceful Uses of Nuclear Energy. This agreement for cooperation (which is hereinafter called the " proposed Agreement")is concurrently being submitted to the President for his authorization for execution.
Section 123 a. of the Atomic Energy Act of 1954, as amended (" Atomic Energy Act"),
. provides that a Nuclear Proliferation Assessment Statement shall " analyze the consistency of the text of the proposed Agreement for cooperation with all the requirements of this Act, with specific attention to whether the proposed Agreement is consistent with each of the criteria set forth in this subsection" and address the " adequacy of the safeguards and other control mechanisms and the peaceful use assurances contained in the agreement for cooperation to ensure that any assistance fumished thereunder will not be used to further any military or nuclear explosive purpose." With this statutory mandate in mind, this assessment statement begins with background on the nuclear program and policies of Ukraine (Part I); describes the nature and scope of cooperation contemplated in the proposed Agreement (Part II A), and reviews the applicable substantive requirements of the Nuclear Non Proliferation Act (NNPA) and the Atomic Energy Act and how they are met by the proposed Agreement (Part II B); discusses other nonproliferation policy issues pertinent to this case (Part 111); and then sets forth the assessment, conclusions, views and recommendations of the United States Arms Contrc,1 and Disarmament Agency, as contemplated by Section 123 a. of the Atomic Energy Act (Part IV).
Introduction At the time ofits independence, Ukraine retained significant nuclear assets from the former Soviet Union including thousands of nuclear weapons,14 operational nuclear power reactors, and numerous nuclear fuel cycle and research facilities. Ukraine ranked in the top ten worldwide in terms of operational nuclear reactors and total electrical generating capacity. In addition, it claimed a well-developed nuclear research infrastructure, uranium mines, chemical plants for processing uranium ore, tens of kilograms of high enriched uranium (HEU) in bulk form, heavy water production capabilities, and a number of nuclear-related dual-use commodities such as zirconium, hanium, and ion-exchange resins. However, Ukraine's nuclear industry does not encompass the complete nuclear fuel cycle and it remains dependaret on Russia for nuclear fuel and other nuclear related goods and services. Ukraine continues to suffer severe economic problems which are keenly felt in the nuclear energy sector. The Govemment of Ukraine has made a commitment to the nonproliferation of nuclear weapons but continues to face challenges developing the regulatory, safety and security infrastmeture necessary to administer its nuclear facilities. U.S. nonproliferation assistance has been successful in reducing the risk ofproliferation originating in, or transiting through, Ukraine and has improved the safety and security ofits nuclear facilities.
Ukrainian Nuclear Facilities
l Denuclearization In 1990,176 START-accountable Intercontinental Ballistic Missiles (ICBM's) were deploy'ed in
! Ukrainian territory at Pervomaysk and Khmelnytskiy. These missiles were attributed with 1240 nuclear warheads. In addition 36 heavy bombers were located at Uzin (TU-95MS Bear) and Pryluky (TU-160 Blackjack) airfields. These bombers were attributed with 368 AS-15 long-range, air-launched cruise missiles (AT.CM) cach anned with a single nuclear warhead. Between two and three thousand non-strategic nuclear weapons were also deployed in Ukraine.
. On 23 May 1992, the United States and Belarus, Kazakhstan, Russia, and Ukraine signed the Lisbon Protocol in which the four successor states agreed to assume the rights and obligations of the former Soviet Union under START (this so-called START I Treaty was signed on 31 July 1991, before the breakup of the Soviet Union). Under the Lisbon Protocol and the associated letters of agreement, Belarus, Kazakhstan, and Ukraine agreed to climinate all strategic offensive anns on their territories during the 7.even-year START reduction period and to accede to the Nuclear Non Proliferation Treaty (NPT) as non-nuclear-weapons states in the shortest possible time. A major step toward accomplishing these objectives was taken on 14 January 1994, when the leaders of the United States, Russia, and Ukraine signed a Trilateral Statement. This statement called for Ukraine to receive certain security assurances from the United States, Russia and the United Kingdom and to be compensated for the 11EU in nuclear weapons transferred to Russia. The five Parties ratified START I, and it entered into force on 5 December 1994. On the '
same day a Joint Memorandum on Security Assurances was signed by Presidents Clinton, Ycitsin, Kravchuk (Ukraine), and UK Prime Minister Major.
All non-strategic nuclear armaments had been withdrawn from Ukrainian soil by May 1992.
When the transfer was complete, the Ukrainian and Russian ministries of defense established a joint commission to inspect every sit: where nuclear weapons had been stored. After the inspections, the commission confirmed the complete withdrawal of all non-strategic nuclear
, weapcms from Ukraine.
On 24 January 1995, Ukraine's Ministry ofDefense issued a statement stating Ukraine has
" fulfilled all conditions stipulated" in the START I treaty with regards to transferring ICBM l warheads out of Ukrainc. By June 1996, all nuclear warheads (including all ICBM. ALCM, and I non-strategic warheads) had been withdrawn to Russia for dismantlement in accordance with the Trilateral Statement.
In March 1996 Russian and Ukrainian defense officials announced that Russia would procure 10 of the 19 Tu-160s and 15 of the 25 Tu-95MS strategic bombers held by Ukraine. The deal has l yet to be implemented. The heavy bombers have not flown for several years and are likely to l need a major rework before they can again be considered operational l
l Export Controls l
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Although rich in defense related production capabilities, nuclear-energy, and missile production capacity, Ukraine inherited little in the way of export control structures or expertise. However, in the past few years the Govemment of Ukraine has made notewonhy progress in assemblihg many of the key elements of an effective export control system. On 5 December 1993, the U.S.
and Ukraine signed an agreement under which the U.S. would provide assistance for Ukraine to establish expon controls over equipment, material and technology related to weapons of mass destruction (WMD).
Ukraine currently has a comprehensive export control system which is defined in both laws and executive decrees. In January 1997 President Kuchma issued a decree that reorganized Ukraine's expon control regime. The Export Control Commission was renamed the Expon Control Policy Commission and its membership was raised to the deputy-minister level. The Commission only deals with the most sensitive expon license applications. Routine license applications are handled by the new state export control service which was created by the presidential decree from the old expert technical committee of the cabinet of ministers. This new licensing structure has heightened interagency focus on sensitive expon control issues and represents a strong desire on the part of the GOU to improve its export control system.
Ukraine does not have a comprehensive expon control law and there are some 90 different anicles in various Ukrainian laws that have some bearing on expon controls. Two of the most imponant decrees, issued by the Cabinet of Ministers, were signed in late 1995 and early 1996, '
establishing commodity control lists for missile and nuclear technologies respectively. The lists are consistent with the guidelines for the Missile Technology Control Regime (MTCR) and the Nuclear Suppliers Group (NSG). On 30 March 1996, it was reponed that Ukraine's Cabinet of Ministers approved an " order of control" on the impon, expon, and transit of nuclear technology, instruments, and materials, ionized radiation sources, and radioactive isotopes. Furthermore, exports to counities which may develop nuclear arms, but currently possess no nuclear weapons, is forbidden under the order.
Ukraine's Nuclear Industry The nuclear industry of Ukraine is a vital part of the national economy. In 1995 nuclear power accounted for approximately 38 percent of the total electricity production. Ukraine has live nuclear power stations with fourteen reactors in commercial operation. Ukraine also has research facilities whose work involves nuclear materials. All of Ukraine's nuclear facilitics are subject to IAEA safeguards.
POWER REACTORS IN UKRAINE Name Location Unit Type operational Power Fuel l
% U-235 l
Chomobyl Prypyst i RBMK 1000 N 700 Mwe 3
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Name Location Unit Type operational Power Fuel
% U-235 2 RBMK-1000 N 700 Mwe 3 RBMK-1000 Y 925 Mwe up to 2.4%
Khmelnytskyy Neteshyn 1 VVER 1000 Y 953 Mwe 3.3-4.4%
Rivne Kuznetsovsk 1 VVER-440 Y 420Mwe 3.3%
2 VVER-440 Y 420 Mwe 3.3 %
3 VVER 1000 Y 954 Mwe 3.34.4%
South Ukraine Konstyantynivka 1 VVER 1000 Y -953 Mwe 3.3-4.4%
2 VVER-1000 Y 953 Mwe 3.3-4.4%
3 VVER 1000 Y 953 Mwe 3.344%
Zaporizhzhya Energodar i VVER 1000 Y 953 Mwe 3.3-4.4%
2 VVER 1000 Y 953 Mwe 3.3-4.4%
3 VVER 1000 Y 953 Mwe 3.34.4%
4 VVER 1000 Y 953 M *e 3.34.4% 4 l
5 VVER 1000 Y 953 Mwe 3.3-4.4% !
6 VVER 1000 Y 953 Mwe 3.3-4.4%
l RBMK - Boiling Water Graphite Reactor 1
VVER - Pressurized Water Reactor I
Significant nuclear research facilities include: !
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- The Kiev institute of Nuclear Research, Academy of Sciences. The Institute contains a 10-MW WWR-M research reactor. The reactor is fueled with HEU which may vary from i i
36 to 90 % U 235. The typical loading of the reactor core is 13.2 Kg of HEU. Ec reactor is operational and spent fuel is stored onsite. The Institute also contains one ]
critical assembly which is not operational and has not been licensed. Reportedly, in time it will be licensed for scientific rescarch work.
- The Kharkiv Institute of Physics and Technology (KIPT). De Institute possesses tens of l kilograms of LEU and HEU in bulk form with enrichment levels up to 90 percent. The Institute is listed as one of six nuclear storage facilities and conducts research in nuclear physics and solid-state physics.
- The Sevastopol Institute ofNuclear Energy and Industry includes an IR-200 research reactor. The reactor is used for training submariners and is administered by Derzhkomatom, which is responsible for all of the nuclear power plants in Ukraine. The 4
t reactor is reported to be out of service. Various reports say that the reactor uses uranium !
. cnriched anywhere from 10 to 90 percent. In 1992, a Ukrainian official asserted that the
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reactor contains up to 3 kg of U-235 fuel enriched to more than 20 percent.
l Ukraine has been acquiring power reactor fuel rods from Russia in exchange for retumed nuclear warheads. This contract will terminate in 1998. Ukraine will continue to be dependant on Russia for enriched uranium for its reactors but intends to form a joint venture with Russia and Kazakhstan to develop a capability to manufacture its own fuel rods. According to a February 1997 Itar Tass report, Ukrainian nuclear ofricials announced that Ukraine plans to supply fuel rods to its five nuclear power plants starting in 2001.
In July 1996 the new corporation, UkrEncrhoAtom, was established in Ukraine to sell electricity produced by Ukrainian nuclear power plants. According to Chomobyl plant manager Serhiy Parashyn. who is one of the founders of UkrEnerhoAtom, the decision to create the enterprise was made by a council of directors from each of the five nuclear power plants. However, the new corporation will not be involved in the plants' operations and thus will have no responsibility for the reactors
- operational safety.
Ukraine is one of the least energy efricient countries in the world. Energy consumption per dollar of GDP is about 3 or 4 times higher than in OECD countries. Many of Ukraine's power
. plants are old and inefficient and the GOU subsidizes the sale of electricity, coal and gas to residential customers. Ukraine has 53,000 megawatts of power-generating capacity and a peak demand ofless than 34,000 megawatts. Despite this excess capacity, most cities throughout Ukraine periodically experience power disruptions as entire regions are removed from the power grid in an effort to maintain system frequency at acceptable levels. Ahhough the nuclear sector nominally has about 26% of Ukraine's generating capacity, it is becoming increasingly dependent on its nuclear power plants. The percent of Ukraine's electrical output generated by the nuclear sector has been steadily increasing from 25.5% in 1990 to 38% in 1995. In December 1997, the nuclear sector produced about 45 percent of the country's electricity because j of fuel supply shortages in the fossil-thermal sector. j In May 1995 the Verkhovna Rada approved " Ukraine's National Energy Program Through 2010." The program emphasizes independence for Ukraine in the area of electricity, to be
, achieved through the restructuring of the electricity sector, construction of thermal power plants. l and development of the nuclear energy sector. The program envisages that in 2010 50% of Ukraine's electricity will be pmduced by thermal plants,40% by nuclear, and 10% by altemative sources. A three year moratorium on the construction of nuclear power stations in Ukraine was ;
scrapped in 1993 and many government officials see Ukraine's nuclear industry as a vehicic for l saving the national economy. The United States has led the G-7 in building a case for European Bank for Reconstruction and Development (EBRD) financing to complete two 950 Mwe Power Reactors, Khmelnytskyy 2 and Rivne 4, as part of a package to close the Chornobyl reactor i facility.
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e Chomobyl On the moming of 26 April 1986 a steam explosion destroyed Unit 4 of the Chomobyl Nuclear Power Plant in Ukraine. The plume from the explosion reached an altitude of approximately 5 kilometers d.sprendrontamination over wide areasef 4heformer.SovM mian as well as Europe. Thousands have died from the resulting contamination, and thousands of peoplQ continue e hted. y The Chomobyl accident was the most devastating civil nuclear disaster in the history of mankind. Approximately 130,000 people were immediately evacuated from a 48 kilometer diameter exclusion zone established around the plant. Radioactive particles from the explosion spread as far as Europe and Asia, and to a lesser extent, North America. Deaths attributed to the explosion number approximately 200, while deaths attributed to the radioactivity number in the thousands, and still affect families who lived in the area.
The damaged reactor was encased in a steel and concrete sarcophagus. Time and elements have degraded the structural integrity of the sarcophagus and plans are under way to repair and strengthen it. The Chomobyl sarcophagus initiative is a G-7 effort under the 1995 G-7/ Ukraine Memorandum of Understanding (MOU). In April 1997, the O-7 and Ukraine reached agreement on a plan to repair the deteriorating sarcophagus. The G-7 has pledged $300 million for the approximately 5760 million project and has called for intemational participation. As of November 1997, $1.5 billion had been identified for investments in Ukraine's energy* sector, nuclear safety assistance, social impacts planning, and energy sector reforms.
The government of Ukraine is under pressure to completely close the Chomobyl station, and agreed in the 1995 MOU to do so around the year 2000. Constmetion was reportedly halted on a fifth and sixth unit after the 1986 accident. Unit 2 was shut down in 1991 after a fire destroyed the generator hall. Units 1 and 3 were shut down in 1991 after an accident at the similar Leningrad Nuclear Power Plant (at Sosnovyy Bor) in Russia, but were restarted in December and October of 1992, respectively. The restart decision was taken against the advice of the Ukrainian State Committee for Nuclear and Radiation Safety (UkrSCNRS--Derzhkomatom).
UkrSCNRS managed to secure the down-rating of Unit I to 80 percent ofits nominal (gross) capacity of 1000 Mwe. In accordance with Ukraine's vow to the G-7 to shut down the entire Chomobyl NPP, Unit I was shut down on 30 November 1996, leaving Unit 3 as the only unit operational. Unit 3 is scheduled to retum to service on 26 March 1998 following completion of repairs to faulty weld seams in the reactor's cooling pipes. Ukrainian govemment officials have said that the completion of two 950 Mwe Power Reactors, Khmelnytskyy 2 and Rime 4, will provide replacement electricity that will enable Ukraine to permanently close the Chornobyl nuclear power station.
Uranium Industry Ukraine possesses approximately 11 percent of the uranium resources in the former Soviet 6
Union. Ukraine's uranium industry is limited to mining ore and producing uranium concentrate (yellowcake). The Zheltyye Vody Uranium Orc Concentration Plant, with an annual production capacity of about 1500 metric tons, is the country's sole producer of yellowcake. Two mines supply Zhcityye Vody - the Ingulskyi mine near Kirovohrad and the larger Vatutininski mine in Smolino. To replace dwindling uranium ore deposits at these mines, Ukraine has decided to develop a large unexploited uranium deposit at Novokostyantynivki in Knipropetrovsk Oblast.
It is expected that uranium enrichment will continue to be carried out abroad. Currently, {
Ukrainian yellowcake is sold to Russia in retum for finished fuel components used in Ukraine's nuclear power reactors.
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There is a zirconium mine in the Dnipropetrivsk region in the city of Volnogorsk, and a zirconium separation plant in the city of Dniprodzerzhynsk. The zirconium mine and the
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separation plant are capable of meeting all of Ukraine's long-term needs and the mine is the only I operational zirconium mine in the former Soviet Union.
)1 IAEA Safeguards l l
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A sui generis comprehensive safeguards agreemeat with Ukraine entered into force on 13 j January 1995 (INFCIRC/462). This agreement was superseded by a new safeguards agreement J pursuant to the NPT which cntered into force on 22 January 1998. There is no difference in the
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safeguards implementation under the two agreements and the IAEA has characterized the change in the agreement as "just a formality." The IAEA received Ukraine's initial declaration on 2 March 1995. The I AEA is still in the initial stages of Safeguards implementation but has not )
1 found any significant anomalies. Ad hoc inspections are now carried out at all facilitics and the IAEA expects to move to routine safeguards implementation soon. In regard to the implementation of Part 1 of the Strengthened Safeguards System, the IAEA has collected l environmental samples to establish baseline signatures at Ukraine's hot cell facilities.
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i US - Ukraine Nucicar Cooperation (
i Cooperative Threat Reduction (CTR) 1 in FY 1997, over $396 million was obligated by Congress for nine unique CTR project in Ukraine.
- 1. Emergency Response Training / Equipment: Enhance Ukraine's ability to respond to nuclear weapons accident / incident.
- 2. Cooperative Reactor Safety Upgrade: Enhance safety of civil nuclear power plants.
- 3. Material Control, Accounting & Physical Protection: Develop effective control of nuclear l materials used in peaceful activities.
- 4. Export Control Assist in building export control institutions & infrastructure.
- 5. Industrial Partnerships: Assist in conversion & privatization of excess military / industrial capability.
- 6. Defense & Military Contracts: Promote improved military military relations.
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- 7. Strategic Offensive Arms Elimination: Provide assistance in the elimination of all ICBM launchers, and the disposition of rocket propellant. ,
- 8. Government to Govemment Communications Link: Provide capability ofmeeting
- START & INF communications obligations; final equipment operational in November 1995.
- 9. Nuclear Infrastructure Elimination: Dismantling, destroying or rendering ineffective key elements of the support infrastructure for deployed nuclear forces.
Brain Drain Although no USSR institutes on Ukrainian soil were directed to this purpose, Ukraine has the technical, engineering, and scientific personnel needed to design and build a nuclear weapon.
Sources at the Ukrainian Academy of Sciences have reported that 5,000 leading scientists have left Ukraine between 1992 and 1997. Boris Paton, the Academy's president, told journalists that scientists prefer to work in Australia, Europe, and the United States because of better conditions.
It appears that in recent months the nuclear engineering brain drain has stopped or at least slowed, but Ukraine still has serious financial problems that could restart the exodus. The Science and Technology Center in Ukraine (STCU) was opened in 1995 with CTR funds to engage weapons and delivery systems scientists and engineers in civilian research and development activities. The U.S. continues to support the Center through funds appropriated under the FREEDOM Support Act. To date, the STCU has funded over 150 projects valued at S18 million that engage over 2600 former Soviet weapon scientists, plus substantial numbers of additional technical support personnel, at institutes across Ukraine. The STCU is a multilateral initiative involving the United States Ukraine, Canada and Sweden. The European Union will bc joining in 1998, and Japan has indicated its interest in making financial contributions.
Ukraine has consistently honored its obligations under the intemational Agreement that established the STCU. This has included providing the STCU facility in Kiev; providing tax-and customs-free treatment for STCU activities in the territory of Ukraine; and permitting unfettered access for independent audit and monitoring at STCU project sites at panicipating Ukrainian scientific institutes, including the most sensitive nuclear research facilities inherited from the Soviet Union.
Material Protection Control, and Accounting (MPC&A)
In December 1993. the U.S. Department of Defense and Ukraine's State Committe for Nuclear Radiation Safety signed the MPC & A implementing agreement, initiating the Nunn.Lugar Progrv.n in the area of material control and accounting (MCA) and physical protection, (PP) in Ukraine. The U.S. Department of Energy (DOE) is the executor of this program throut h its Russir/ Newly Independent States Nuclear Material Security Task Force. The goal of th: task force is to prevent the theft or diversion ofnuclear materials by providing modem equipment and training for physical protection and nuclear material control and accounting. The task force is providing assistance at four sites in Ukraine: the Kiev Institute for Nuclear Research (KINR), the Kharkiv institute of Physics and Technology (KIPT), the South Ukraine Nuclear Power Plant 8
____..______.__m.m._m___ . . _ . _ . . _ _ . . _ . _
(SUNPP), and the Sevastopol Institute of Nuclear Energy and Industry (SINEL).
In August - September 1994, DOE led teams performed MPC&A site surveys at KINR and.
SUNPP. In.iune 1995, a site survey was conducted at KIPT. In May 1996, a site survey was conducted at SINEL Extensive physical protection upgrades have been installed at KINR and automated inventory material accounting system software has been provided to all nuclear facilities along with computers and training for technical staff. Argonne National Laboratory is working with the technical staff to develop appropriate MCA procedures and to make sure that the facility staff receive the necessary training to implement these procedures fully. DOE has provided general purpose, low resolution, and high resolution gamma-ray spectroscopy systems for nondestructive assay to confirm the isotopic composition of nuclear materials in inventory.
Appropriate systems were provided to all nuclear facilities and the Ministry of Environment Protection and Nuclear Safety. On 21 October 1997,the fully operational upgraded MPC&A system at KINR was commissioned. This was the first modem, technology based MPC&A system in Ukraine and the KINR system is the largest project completed so far by the DOE task force.
Ukrait.e Nonproliferation Policy Ukraine probably has the technical, engineering, and scientific knowhow to design and build nuclear weapons. However. Ukraine's leaders have consistently stated that Ukraine has no intention of becoming a nuclear weapons state. Moreover, Ukraine has codified this policy through adherence to the NPT and acceptance ofIAEA safeguards on all its nuclear facilities. In addition, Ukraine has supported key elements of the international nonproliferation regimes.
Ukraine is a member of the Nuclear Suppliers Group (NSG) and the Zangger Committee. It is also a member of the Wassenaar Arrangement and adheres to the provisions of the Missile Technology Control Regime (MTCR). Ukraine is a party to the Biological Weapons Convention (BWC) and has signed but not ratified the Comprehensive Test Ban Treaty (CTBT). Ukraine has i signed but not ratified the Chemical Weapons Convention (CWC). .
I With a large civil nuclear program, significant indigenous manufacturing capabilities, and a still evolving nuclear export control system, Ukraine is a target for nuclear proliferans states seeking assistance for unsafeguarded nuclear activities or for supply to civil nuclear projects which cannot be obtained from most nuclear supplier nations. The United States has raised several cases with Ukrainian officials over the years in this connection and Ukrainian cooperation has been largely satisfactory. However, the United States encountered significant difficulty in obtaining a firm Ukrainian commitment to avoid any assistance to Iran's nuclear program. The Ukrainian firm Turboatom contracted to supply turbines for Iran's Bushcht nuclear power reactor which is being supplied by Russia over the strong objections of the United States. Ukrainian authorities were concerned about the political and economic fallout of canceling this contract, but l ultimately decided to do so in connection with a package of U.S. incentives and in view of the impact such a transaction would have on Ukraine's relations with the United States.
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4 Summary The Govemment of Ukraine has made a strong commitment to the nonproliferation of nucidar weapons. However, additional work is needed to further reduce the risk that nuclear materials or technology from Ukraine could fall into the hands of terrorist or rogue states attempting to develop nuclear weapons. Ukraine continues to suffer from severc economic problems that, in some cases, has the potential to affect its nonproliferation policy. (The European Bank for Reconstruction and Development estimates that in 1997 Ukraine's GDP was approximately 40 percent ofits 1989 level.) l'or example, a 1997 Montercy lastitute ofInternational Studies' assessment of Ukraine's export control system reported that in the early 1990's Ukrainian govemment officials overruled their own competent export control authorities to sell off state reserves of zirconium to dubious end-users. More recently. Ukraine's decision to forgo a lucrative contract for the supply of turbines for Iran's Bushehr project represents its commitment to a strong nonproliferation policy despite the economic costs. Ukraine will face significant challenges in upgrading the cafety and security ofits nuclear facilities in the future. Ukraine has made substantial progress in developing the elements of a strong export control system and improving the material protection, control and accounting ofits nuclear material. U.S.
nonproliferation assistance to Ukraine has been successful in reducing the risk that items of proliferation concern will originate in, or transit through, Ukraine and has improved the security ofits nuclear facilitics.
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II. COMPLIANCE WITH STATUTORY REQUIREMENTS As will be shown below, the proposed Agreement meets the applicable requirements of the Atomic Energy Act, as amended. (hereinafter the Act) and the Nuclear Non-Proliferation Act .
(hereinafter the NNPA). Section 123 a. of the Act, as amended by Section 401 of the NNPA, requires new or amended agreements for cooperation to include the terms, conditions, duration, nature and scope of the cooperation.
The nature and scope of the cooperation authorized by the proposed Agreement is described in Section A below. The most pertinent terms and conditions of the cooperation authorized by the proposed Agreement arc discussed in Sections B, C, D, and E below.
The duration of the proposed Agreement is thiny years from the date ofits entry into force and is extendable by agreement of the panies. Either party may terminate the agreement at any time by providing a one year written notice to the other party.
A. Nature and Scope of Cooperation (1) permitted Cooperation Article 2 of the proposed Agreement describes in general terms the kinds of cooperative activity envisaged: the use of nuclear energy for peaceful purposes and the transfer of information, material, equipment and components. Such cooperation is to be in accordance with the proposed Agreement and the applicable treatics, national laws, regulations and license requirements of the panies. Articic 3 sets forth various topics on which information may be transferred such as the development of reactors, the physical protection of nuclear material, and nuclear health and safety matters. Article 4 (1) provides that material, equipment and components may be transferred for applications consistent with the proposed Agreement.
Material, equipment and components arc defmed in Article 1 (1), (E), and (B), respectively; among such commodities are natttral uranium, low enriched uranium, reactors, and specialized reactor components. Article 4 (4) provides that small quantities of special nuclear material, such as plutonium and high-enriched uranium, may be transferred for use as samples, standards, detectors, targets and for such other purposes as the parties may agree.
(2) Tvoes of Cooperation Not Authorized
. The proposed Agreement excludes certain types of cooperation from its scope and provides that amendment of the pmposed Agreement would be required for certain other types of cooperation.
Article 3 (3) provides that restricted data, as defined in Article 1(O), shall not be transferred under the proposed Agreement. Article 3 (4)of the proposed Agreement provides that sensitive nuclear technology, as defined in Article 1(Q) of the proposed Agreement, shall not be transferred under this agreement unless provided for by an amendment to this agreement. (In il l
t addition, Article 3 (2) provides that neither pany is required to transfer any information which it is not pennitted to transfer.)
Anicle 4 (1) provides that the only special nuclear material that can be transferred to Ukraine under the proposed Agreement is low enriched uranium, except as provided in Article 4(4). Anicle 4(1) also states that neither party shall transfer sensitive nuclear facilities, as defined in Anicle 1(P) of the proposed Agreement, and major critical components thereof, as defined in Anicle 1(II), unicss the agreement is amended to permit such transfer.
The effect of these provisions is that the proposed Agreement does not permit the transfer ofinitt alla sensitive nuclear fuel cycle technology or facilities such as for enrichment or reprocessing, nor the transfer of weapons usable nuclear material such as plutonium or high enriched uranium except in small quantities (e.g. a few grams) as may be agreed for the pumoscs stated above under Article 4 (4).
B. Specific Requirements for Agreements for Cooperation Section 123 a. of the Atomic Energy Act sets forth ninc specific requirements which must be met in an agreement for cooperation. These are set forth below, with a description and explanation of the provisions of the proposed Agreement which address each requirement.
(1) Duration of Safecuards Subparagraph (1) of Section 123 a. of the Act rcquires:
a guaranty by the cooperating pany that safeguards as set fonh in the agreement for cooperation will be maintained with respect to all nuclear materials and equipment transferred pursuant thereto, and with respect to all special nucicar material used in or produced through the use of such nuclear materials and equipment, so long as the material or equipment remains under thejurisdiction or control of the cooperating pany, irrespective of the duration of other provisions in the agreement or whether the agreement is terminated or suspended for any reason.
This provision is designed to provide protection against any termination of the safeguards "as set fonh in the agreement" with respect to items subject to the proposed Agreement. Anicle 9, Anicle 14 (3), and the " Safeguards" scetion of the Agreed Minute of the proposed Agreement satisfy this requirement.
Article 9 (2) provides that " source or special nuclear material transferred to Ukraine pursuant to this Agreement and any source or special nuclear material used in or produced through the use of material, equipment or components so transferred shall be subjcet to safeguards in accordance with the agreement between Ukraine and the 1AliA for the application of safeguards in connection with the NPT, signed on 21 September 1995 and entered into force on 22 January 1998.
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Article 9(4) provides further assurance of the continued applicability of safeguards in Ukraine by requiring that if the United States "becomes aware of circumstances which demonstrate that the IAEA for any reason is not or will not be applying safeguards in accordance with [ Ukraine's NPT safeguards agreement), to ensure effective continuity of safeguards the parties shall consult and immediately enter into arrangements with the IAEA or between themselvcs which conform with IAEA safeguards principles and procedures, which provide i assurance equivalent to that intended to be secured by the system they replace, and which conform with the coverage required by [ Article 9(2)]."
Also, the " Safeguards" paragraph of the Agreed Minute appended to the proposed Agreement provides that "if either party becomes aware of circumstances referred to in paragraph 4 of Article 9, either party shall have the rights listed below, which rights shall be suspended if both parties agree that the need to exercise such rights is being satisfied by the application of IAllA safeguards under arrangements pursuant to paragraph 4 of Article 9: ]
(1) To review in a timely fashion the design of any equipment transferred pursuant to the Agreement, or of any facility which is to use, fabricate, process, or store any material so_ transferred or any special nuclear material used in or produced through the use of such material or equipment; (2) To require the maintenance and production of records and of relevant repons for the purpose of assisting in ensurmg accountability for material transferred pursuant to the Agreement and any source material or special nuclear material used in or produced through the use of any material, equipment or components so transferred; and (3) To designate personnel, in consultation with the other pany, who shall have access to all places and data necessary to account for the material in paragraph 2, )
to inspect any equipment or facility referred to in paragraph 1, and to install any !
devices and make such independent measurements as may be deemed necessary to l account for such material. Such personnel shall, if either pany so requests, be j accompanied by personnel designated by the other party. !
Article 9 (5) reinforces all of this by providing that "each party shall take such measures as are necessary to maintain and facilitate the application of safeguards provided for under this article."
With respect to continuation of safeguards, Article 14 (3) states that "notwithstanding the termination or expiration of this agreement or any cessation of cooperation hereunder for any i reason, Anicles 5,6,7,8,9 and 11 shall continue in elrect so long as any material, equipment or j components subject to these articles remains in the territory of the party concemed or under its jurisdiction or control anywhere, or until such time as the parties agree that such material, equip nent, or components are no longer usable for any nuclear activity relevant from the point of view of safeguards."
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Article 9, paragraphs 6 and 7, also require each Pany to maintain an accounting and control system for nuclear material and to provide, or allow the IAEA to provide upon request of the other Party, status reports on inventories of material subject to the proposed Agreement.'
(2) Eull-Scone Safeguards Subparagraph (2) of Section 123 a. of the Act requires:
in the case of non nuclear weapon states, a requirement, as a condition of continued United States nuclear supply under the agreement for cooperation, that 1AEA safeguards be maintained with respect to all nuclear materials in all peaceful nuclear activitics within the territory of such state, under its jurisdiction, or carried out under its control anywhere.
Article 9 (1) meets this requirement by providing that cooperation under the proposed Agreement shall require the application of1AEA safeguards "with respect to all nuclear activities within the territory of Ukraine, under its jurisdiction or carried out under its control anywhere."
The IAEA is applying such safeguards in Ukraine under the NPT safeguards agreement which entered into force on January 22,1998.
(3) No Militarv or Explosive Use Subparagraph (3) of Section 123 a. of the Act requires:
...a guaranty by the cooperating party that no nuclear materials and equipment or sensitive nuclear technology to be transferred pursuant to .such agreement, and no special nuclear material produced through the use of any nuclear materials and equipment or sensitive' nuclear technology transferred pursuant to such agreement, will be used for any nuclear explosive device, or for research on or development of any nuclear explosive device, or for any other military purpose.
Article 8 of the proposed Agreement satisfies this requirement by requiring that:
material, equipment and components transferred pursuant to this agreement and material used in or produced through the use of any material, equipment or components so transferred shall not be used for any nuclear explosive device, for research on or development of any nuclear explosive device, or for any military purpose.
As noted earlier, Article 3(4) provides that " sensitive nuclear technology shall not be transferred under this agreement unless provided for by an amendment to this agreement."
(4) Right of Retum For agreements for cooperation with non nuclear-weapon states, subparagraph (4) of l
4 Section 123 a. of the Act requires:
...a stipulation that the United States shall have the right to require the return of
- any nuclear materials and equipment transferred pursuant thereto and any special nuc! car material produced through the use thereofif the cooperating party detonates a nuclear explosive device or terminates or abrogates an agreement providing for IAEA safeguards.
Article 11 meets this requirement by providing:
- 1. If either pany at any time following entry into force of this agreement:
(A) does not comply with the provisions of Article 5,6,7,8, or 9 or; (B) terminates, abrogates or materially violates a safeguards agreement with the IAEA; the other party shall have the rights to cease further cooperation under this agreement and to require the return of any material, equipment and components transferred under this agreement and any special nuclear material produced through their use.
- 2. If Ukraine at any time following entry into force of this agreement detonates a nucicar explosive device, the United States of America shall have the same rights as specified in paragraph 1.
(5) Retransfer Subparagraph (5) of Section 123 a. of the Act requires:
a guaranty by the cooperating party that any material or any Restricted Data transferred pursuant to the agreement for cooperation and...any production or utilization facility transferred pursuant to the agreement for cooperation or any special nuclear material produced through the use of any such facility or through the use of any material transferred pursuant to the agreement, will not be transferred to unauthorized persons or beyond thejurisdiction or control of the cooperating party without the consent of the United States.
Article 5 (2) of the proposed Agreement satisfies the requirements of Sections 123 a. and 109 of the Act by providing that:
Material, equipment and components transferred pursuant to this agreement and any special nuclear material produced through the use of any such material or equipment shall not be transferred to unaut!mrized persons or, unless the parties agree, beyond the recipient party's territorialjurisdiction.
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f Any production or utilization facility that may be transferred under the proposed Agreement would constitute equipment as that term is defined in Article 1(E)(this observation also applies to criteria 6,7,8 discussed below). Also, as noted earlier, Article 3(3) providesthat restricted data shall not be transferred under the agreement.
The exercise of this particular United States control with respect to "special nuclear material produced through the use of nuclear material transferred pursuant to the Agreement and not used in or produced through the use of equipment transferred pursuant to the Agreement" is limited by the rule of proponionality set out under " Coverage of Agreement" in the Agreed Minute. That section confirms that the retransfer requirements of Anicle 5 shall be applied in such cases to "that proponion of special nuclear material produced which represents the ratio of transferred material used in the production of the special nuclear material to the total amount of
. material so used, and similarly for subsequent generations."
(6) Physical Security Subparagraph (6) of Section 123 a. of the Act requires:
a guaranty by the cooperating pany that adequate physical security will be maintained with respect to any nuclear material transferred pursuant to such agreement and with respect to any special nuclear material used in or produced through the use of any material, production facility, or utilization facility transferred pursuant to such agreement.
Article 7 (1) of the proposed Agreement satisfies this requirement by requiring that:
Adequate physical protection shall be maintained with respect to source or special nuclear material and equipment transferred pursuant to this Agreement and special nuclear material used in or produced through the use of material or equipment so transferred.
. With respect to the meaning of " adequate." Section 127 (3) of the Act provides that physical security measures shall be deemed adequate if they provide a level of protection equivalent to that required by regulations promulgated by the Nuclear Regulatory Commission (NRC) establishing levels of physical protection. (See NNPA Section 304 (d); 10 CFR 110.43.)
Article 7 (2) of the proposed Agreement satisfies this test by providing that:
The parties agree to the levels for the application of physical protection set forth in the Annex to this agreement, which may be modified by mutual consent of the parties without amending this agreement. The parties shall maintain adequate physical protection measures in accordance with these levels. These measures shall as a minimum provide protection comparable to the recommendations set forth in the current version, as agreed to by the panies, of IAEA Document INFCIRC/225.
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4 The standards of physical protection that must be met under the proposed Agreement are those that are accepted and implemented world-wide. These standards are also equivalent to those required by the above mentioned U.S. NRC regulation. :
(7) Renroccasine. Enrichment or Other Alteratian Subparagraph (7) of Section 123 a. of the Act izquires:
... A guaranty by the cooperating pany that no material transferred pursuant to the agreement for cooperation and no material used in or produced through the use of any material, production facility, or utilization facility transfened pursuant to the agreement for cooperation will be reprocessed, enriched or (in the case of plutonium, uranium 233, or uranium enriched to greater than twenty percent in the isotope 235, or other nuclear materials which have been irradiated) otherwise altered in forrn or content without the prior approval of the United States.
Anicle 6 of the proposed Agreement satisfies these requirements by providing the following:
- 1. Material transferred pursuant to this agreement and material used in or produced through the use of material or equipment so transferred shall not he reprocessed unless the parties agree.
- 2. Plutonium, uranium 233, high enriched uranium and irradiated source or special nuclear material, transferred pursuant to this agreement or used in or
. produced through the use of material or equipment so transferred, shall not be altered in form or content, except by in adiation or funher irradiation, unless the parties agree.
- 3. Uranium transferred pursuant to this agreement or used in any equipment so transferred shall not be enriched after transfer unless the panies agree.
The consent provisions in Anicle 6 of the proposed Agreement are also subject to the proportionality provision in the Agreed Minute (see above under (5) Retransfer).
(8) $.tgings Subparagraph (8) of Section 123 a. of the Act requires:
...a guaranty by the cooperating party that no plutonium, no uranium 233, and no uranium enriched to greater than twenty percent in the isotope 235, transferred pursuant to the agreement for cooperation, or recovered from any source or special nuclear matenal so transferred or from any source or special nuclear material used in any production facility or
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4 utilization facility transferred pursuant to the agreement for cooperation, will be stored in any facility that has not been approved in advance by the United States.
Articic 5 (1) of the proposed Agreement fulfills this requirement by providing that:
Plutonium and uranium 233 (except as contained in irradiated ,
fuel clements), and high enriched uranium, transferred {
i pursuant to this agreement or used in or produced through the use of material or equipment so transferred shall only be stored in a facility to which the parties agree.
1 The storage control provided for in Article 5(1) of the proposed Agreement is also '
l subject to the proponionality provision in the Agreed Minute.
(M Sensitive Nuclear Technology Subparagraph (9) of Section 123 a. of the Act requires:
a guaranty by the cooperating pany that any special nuclear j material, production facility, or utilization facility produced or constmeted under the jurisdiction of the cooperating party by or through the use of any sensitive nuclear technology transferred pursuant to such agreement for cooperation will be i subject to all the requirements specified in this subsection.
Article 3 (4) of the proposed agreement precludes transfers of sensitive nuclear I technology and thus there is no need for the agreement to contain these guarantees. Any amendment of the proposed Agreement that authorized transfers of sensitive nuclear technology would have to incorporate these guarantees. Such an amendment would be subject to the same approval and review procedures as the pmposed Agreement. ]
C. NNPA Section 402 -- Additional Requirements i
Section 402(a) of the NNPA requires that:
Except as specifically provided in any agreement for l cooperation, no source or special nuclear material hercafter exported from the United States may be enriched after export without the prior approval of the United States for such enrichment.
- Article 6 (3) satisfies this restriction by providing that " uranium transferred pursuant to this Agreement or used in any equipment so transferred shall not be enriched l l l
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after transfer unless the parties agree."
Section 402 (b) of the NNPA requires that: -
In addition to other requirements oflaw, no major critical component of any uranium enrichment, nuclear fuel reprocessing, or heavy water production facility shall be exported under any agrt:cment for cooperation...unless such agrcement for cooperation specifically designates such components as items to be exponed pursuant to the agreement for cooperation.
4 As noted above, Anicle 4 (1) makes cicar that major critical components of
- sensitive nuclear facilities may not be t*ansferred under the proposed Agreement. The definition of" sensitive nuclear facility" in Anicle 1 (P) of the pmposed Ageccment i encompasses the facilities described in Section 402 (b) of the NNPA.
D. Section 129 of the Atomic Energy Act - Conduct Resulting in Tennination of Nuclear Expons Section 129 of the Atomic Energy Act prohibits exports of nuclear materials and equipment or sensitive nuclear technology to countries that engage in proscribed activities .
Among the proscribed activities in Section 129 are detonation of a nuclear explosive, violation or termination of1AEA safeguards, or engaging in activities involving source or
! special nuclear material having direct significance for the manufacture or acquisition of
, nuclear explosive devices and having failed to take sicps in the judgment of the President l representing sufficient progress toward terminating such activitics. Based on all
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information available to ACDA, there is no basis for a finding that Ukraine has engaged in any of the types of activities that would require the imposition of sanctions set fonh in Section 129.
E. Section 109 of the Atomic Encrgy Act - Components. Items, l and Substences -
Section 109 of the Act cmpowers the Nuclear Regulatory Commission (NRC) to
, designate certain component pans, items and substances which, because of their l significance for nuclear explosive purposes, should be subject to its licensing authority.
Such licenses would be granted only upon a finding that (a) IAEA safeguards will be applied to such component, substance or item, (b) the component, substance or item (s) will not be used for any nuclear explosive device or for research on or development of any nuclear explosive device, and (c) that no such component, substances or item will be retransferred without U.S. consent.
The NRC in its regulations (10 CFR Pan i 10) has identified censin reactor components and two substances-heavy water and nuclear grade graphite--as subject to these criteria. The Atomic Energy Act does not require that such exports be transferred e.mdcr an agreement for cooperation. Ilowever, they may be so transferred and thus bc t1
subject to all the relevant provisions of the agreement. The first two criteria noted above are met because of the language in Anicle 8 and Anicle 9(2). The third criterion (retransfer)is satisfied by Anicle 5 (2) of the proposed Agreement. Those provisions of Anicles 5,8, and 9 cover iatu alla " components" and " material." Material is defined in Anicle 1(1) as including " moderator material" which in turn is defined in Article 1 (J) as including heavy water and nuclear grade graphite.
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ill. OTHER NONPROLIFERATION POLICY ISSUES Any decision by the United States to engage in nuclear cooperation with a given nation involves a number of nonproliferation policy considerations in addition to the legal rights, guarantees, and safeguards contained in the applicable agreement for cooperation. These considerations could relate in a given case to such matters as scope and terms of the cooperation envisaged under such an agreement, the precedent-setting implications of particular provisions of such an agreement, the degree to which extending nuclear cooperation may foster other
, nonproliferation efforts, the general role of the state concemed in nonproliferation efforts, and a number of other issues. These issues will vary from case to case. This section of the assessment statement addresses policy issues of this kind that relate to the proposed Agreement.
A. Nuclear Non-Proliferation Commitment in determining whether it is in the national interest of the United States to enter into an agreement for cooperation, foremost consideration should be given to the fundanartal conunitment of the country in question not to acquire nuclear weapons. After gaincg its independence in late 1991, Ukraine found itself with one of the world's largest nuclear arsenals -
- over 1600 nuclear warheads deployed on 176 ICBMs and on 36 heavy bombers (equipped with air-launched cruise missiles) and thousands of non-strategic nuclear weapons. However, Ukraine made clear at an carly date that it had no intention of becoming a nuclear weapon state, beginning with the July 16,1990, Declaration on ' Ukrainian National Sovereignty and afTimled by the Ukrainian Parliament on October 24,1991. On December 21,1991, then-President Leonid Kravchuk of Ukraine joined the leaders of several other newly independent states in pledging in Alma Ata, Kazakhstan, that Ukraine would undertake a binding intemational obligation under the Nuclear Non-Proliferation Treaty (NPT) not to manufacture or acquire nuclear weapons; and would conclude an agreement with the Intemational Atomic Energy
. Agency (I AEA) to apply safeguards to all of Ukraine's peaceful nuclear activities. This declaration also called for the removal of all non strategi: nuclear weapons from Ukraine by the middle of 1992. This goal was met, after a short halt in the transfers instituted by Ukraine regarding oversight of the dismantlement of these weapons in Russia.
Moreover, since some systems limited by the START I Treaty (signed in 1991 before the breakup of the Soviet Union) were in Ukraine, START I was expanded to included Ukraine (as well as Kazakhstan and Belams) through the signing of the Lisbon Protocol in May 1992. In this Protocol, Ukraine reaffirmed that it would adhere to the NPT at the earliest possible time.
Ilowever, continuing problems in its relations with Russia and a vigorous debate within Ukraine presented serious obstacles for the Ukrainian leadership in obtaining the necessary parliamentary approval of the NPT and START 1.
There was a small portion of the Ukrainian Parliament who supported outright possession 2N
,4 and control of the nuclear weapons by Ukraine, in part as a security hedge against Russia and others who were perceived as posing a potential threat to Ukraine's economic and territorial independence. However, most of the debate surrounded the need for Ukraine not tojoin the NPT.
and/or ratify START I until Ukraine had received adequate assurances related to (i) its security, (ii) compensation for the fissile mr.terial in the nuclear weapons which were to be returned, and (iii) fmancial assistance for the huge task of dismantling and disposing of these nucicar missile systems.
There was considerable press speculation in 1992-93 that the Ukrainian Government secretly harbored an intention to retain possession of former Soviet nuclear weapons and become a nuclear weapon state; and that the arrangement with Russia for Ukraine to maintain
" administrative" control of nuclear weapons on Ukrainian territory was tantamount to a declaration of nuclear weapon status. To correct this misimpression Ukraine authorities (i) reinforced the many statements going back to 1990 of Ukraine's intention to be a non-nuclear-weapon state, (ii) explained that the nuclear missiles in Ukraine were under the command and control of Russia and Ukraine did not have direct or indirect " control" over the nuclear weapons on its territory, (iii) asserted that the fissionable material in the nuclear weapons is the property of Ukraine and that it expected adequate compensation once the weapons were dismantled. (iv) stated that " administrative control" meant only that Ukraine had some say over the logistical support and transport of the nuclear weapons on its territory, and (v) declared that while Ukraine did not have the independent ability to launch nuclear missiles on its territory, it had obtained a veto over the use of any nuclear weapons on its territory.
The Ukrainian Parliament provided conditional ratification of START I in November 1993, but did not act on the NPT. The Parliament made clear that it had not yet received adequate assurances on the question of compensation and security assurances. This led to the Trilateral Statement signed in January 1994 by Presidents Clinton, Yelstin, and Kravchuk which contained explicit commitments with regard to the remaining issues. Specifically, a schedule was worked out that would compensate Ukraine with nuclear fuel deliveries from Russia in exchange for the return to Russia of certain numbers and types ofnuclear warheads deployed in Ukraine.
Moreover, agreement was reached on security assurances that Russia and the United States (and ultimately the United Kingdom) would provide to Ukraine upon START I entry into-force and Ukrainian NPT accession. The commitments in the Trilateral Statement led on Decemhr 5, 1994, to entry-into-force of START I and Ukrainian NPT accession on December 5,1994. At the same time, a Memorandum on Security Assurances was signed by Presidents Clinton, Yeltsin, Kravchuk, and Prime Minister Major. (Belarus and Kazakhstan joined Russia and the United States in bringing START I into force on this date, and also signed identical security assurances memoranda.)
It should be noted that throughout this process and pending its NPT accession, Ukraine had initiated efforts with the IAEA to negotiate an agreement to place all of Ukraine's peaceful nuclear activitics under I AEA safeguards. Until Ukraine joined the NPT, it was under no obligation to completc such an agreement. Its willingness to proceed with that agreement is b
further evidence ofits non-nuclear commitment. Ukraine has taken other steps to demonstrate its support of the nonproliferation regime including supporting indef' mite and unconditional extension of the NPT in 1995 and signed'the Comprehensive Test Ban Treaty in 1996. Ukraine is a pany to the Biological Weapons Convention and a sigrtory to the Chemical Weapons Convention.
In connection with Ukraine's commitment not to acquire nuclear weapons, it is important to examine Ukraine's security situation. Ukraine has taken a number of steps recently that significantly improve its security -- chief among them being the agreement with Russia in May 1997 which resolved the long-standing dispute over the Black Sea Fleet and acknowledged -
Ukraine's independence and territorial integrity. Ukraine has also reached important cooperation
- agreements with other key neighbors -- Poland, Belarus, Lithuania, and Romania. These effons demonstrate a strong commitment to regional security. The Ukrainian Government has also taken steps to defuse potentially destabilizing intemal ethnic tensions owing to the presence of a imge number of ethnic Russians, primarily in the Crimea. Finally, statements by Ukrainian leaders indicated that Ukraine will continue to push for closer integration into NATO and other Westem institutions. Ukrainc is a member of NATO's Partnership for Peace program and in July 1997 the NATO-Ukraine Chaner was signed providing clear evidence of close political ties to
. the premier European security organization.
The commitment of Ukraine's leadcrship not to acquire nuclear weapons is genuine and for the foreseeable future we envisage no changes in the security situation in that region of the world that would cause Ukraine to reconsider that commitment. Even if there were a degradation in the security situation, there are strong legal and political ban iers in place to deter a radical change in policy by Ukraine including a web ofintemational obligations that strictly pmhibit the acquisition of nuclear weapons. Such a reversal of Ukrainian nuclear nonproliferation policies would seriously destabilize Eastem and Central Europe, and lead to a deterioration in Ukraine's relations with the United States and key European nations -- whose suppon is critical to Ukraine's goal of closer integration into Westem security and economic institutions and to the trade, assistance and investment critical to Ukraine's economic long-term economic fonunes.
B. Nuclear Material Security and Nuclear Export Controls The former Soviet Union also len a legacy in Ukraine consisting of a large nuclear power program and several sites where significant quantities of high enriched uranium are stored or l used as research reactor fucl. This material is all under IAEA safeguards and Ukrainian
- authorities have also been taking steps to ensure this IIEU is under physical security measures ,
l . that meet intemational standards. This effon is carried out panly through assistance from the U.S. Department of Energy's Nuclear Material Security Task Force as described in Pan I.
Ukraine appears to be making satisfactory progress toward improving its physical security system and to date there have been no verified repons of smuggling or theft involving significant quantities of Ukrainian-origin nuclear material.
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Ukraine joined the Nuclear Suppliers Group in 1996, and by doing so has pledged to?
implement a nationwide nuclear export control system covering a wide range of nuclear and dual use equipment, material and technology Ukraine has such a system in place, but - as with other newly independent states -- it will be some time before this system can be characterized as .
fully effective as Ukraine gains experience and trains the personnel necessary to enforce these I laws and to have effective border controls. The United States will continue to assist this effort wherever possible including through discussions on individual cases and consultations on general 1 nuclear export control principles including implementation of the NSO Guidelines. The U.S. ]
Department of Energy has developed a wide ranging cooperative program with Ukrainian nuclear related institutes and government counterparts to help improve nuclear export controls.
Among the projects which are under way or completed: developing technical support for the .
review of nuclear license applications, reviewing control lists for consistency with intemational standards, conducting workshops on the principles of nuclear export controls, and assisting Ukrainian authorities in their industry outreach activities.
In connection with the proposed Agreement, Ukraine and the United States reaffirmed their strong interest in preventing the proliferation of weapons of mass destruction, missiles capable of their delivery, and of related equipment and technology. In recognition of their strategic partnership and shared interests in nonproliferation, Ukraine and the United States agreed on the need for responsible policies regarding nuclear cooperation with third countries. In that regard. Ukraine has affirmed its NSO obligation not to assist any unsafeguarded nuclear facilities and activities in non-nuclear-weapon states. This is an important policy to reinforce with Ukraine as it is not only a relatively new member of the NSG but also a potentially attractive procurement target for Pakistan and India, each of which have an substantial unsafeguarded nuclear program. Second and equally important, Ukraine has pledged to refrain ;
from nucicar cooperation with Iran and has decided to cancel the sale of turbines to Iran for the Bushcht power reactor being supplied by Russia. The United States has been urging all states to forego nuclear cooperation with Iran in view of the fact Iran is seeking a nuclear weapon. This has been an important policy principle in recent U.S. decisions to engage in civil nuclear cooperation -it is not something that came upjust with Ukraine. The United States continues to refuse to conclude a peaceful nuclear cooperation agreement with Russia given its continued nucicar cooperation with b c.n: and the President's recent decision to implement the long donnant peaceful nuclear cooperation agreement with China was based in part on a Chinese decision not to engage in new nuclear cooperation with Iran and to terminate existing projects in a relatively short period of time.
This was a difficult decision for Ukrainian officials, one which they fear could have l
l significant adverse economic consequences. The Ukrainian firm in question provides turbines for many Russian built power reactors and could lose considerable business if Russia retaliates by developing altemate suppliers. However, following intensive U.S. diplomatic efforts i
including the creation of a package ofincentives, senior Ukrainian leaders have made a firm
, decision to withdraw from the 13ushehr project and to forego any other nuclear cooperation with Iran. Ukraine may fear the consequences from Russia. but it is in good company as other nuclear
suppliers around the world have made a similarjudgment about the risks of cooperating with fran's nuclear program to the point where only Russia remains as willing to provide such assistance. While Ukraine will be under strong economic and political pressure to renege on this commitment to the United States, we are reasonably satisfied that this Ukrainian decision is irreversible. However, in the unlikely event that Ukraine should act in a way that is inconsistent with its assurances to the United States, we have the recourse of suspending any cooperation under the proposed Agreement. Peaceful nuclear cooperation agreements are required by U.S.
law for certain kinds of nuclear expons, but merely provide a legal framework under which individual transfers of nuclear material and equipment are licensed following a positive recommendatic,n by the Executive branch to the Nuclear Regulatory Commission.
Ukraine's domestic nuclear industry has substantial manufacturing capability and can provide important assistance to the construction of a nuclear power station. Ukrainian authorities must continue to be vigilant against any effon by less responsihte supplier states to involve Ukrainian firms in other power reactor expon cases such as Russian sales to india or Chinese sales to Pakistan. nc United States should consult with Ukrainian nuclear cxpon control authorities about any credible reports that Ukrainian firms are being approached for such assistance.
C. IAEA Safeguards and U.S. Civil Nuclear Cooperation With Ukraine Prior to its NPT accession, Ukraine negotiated a safeguards agreement with the IAEA covering all of Ukraine's civil nuclear activities. This agreement entered into force on January 13,1995. Ukraine then completed an NPT safeguards agreement with the IAEA and that agreement entered into force on January 22,1998. While there may yet be some weaknesses in the application ofIAEA safeguards at certain facilities due to the fact that Ukrainc is continuing to improve its national MPCA measures, we arc confident that the IAEA is able to exercisc fully its rights under its agreement with Ukraine. The IAEA has completed its initial inventory inspections at most reactors and ad hoc inspections are now carried out at all facilities. We have no reason to suspect that Ukraine has provided the I AEA with anything less than a full accounting of nuclear material and activities required to be subject to safeguards under its agreement with the IAEA. Ukraine is cooperating fully with the IAEA in the implementation of safeguard measures.
l I At present there is no U.S.-origin nuclear equipment or material in Ukraine that will become subject to this agreement upon its entry into force. Possible expons under the proposed agreement include reactor components or fuel for reactors such as natural uranium or low {
enriched uranium. (The proposed agreement prohibits the export of significant quantities of high ]
cnriched uranium or plutonium, limiting such expons to gram quantities for use as standards er {
I other such applications.) U.S. - Ukraine cooperation over the past few years on MPCA issuer has resulted in a great deal of transparency into Ukraine's nuclear program. This familiarity with Ukraine's program and U.S. knowledge of the safeguards approaches that the IAEA uses for the type of nuclear facilities in Ukraine give us a high degree of confidence about the adequacy ;
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of!AEA safeguards to ensure that any U.S. assistance provided to Ukraine under the proposM agreement is not used for military or nuclear explosive purposes.
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1 IV IV. Conclusion ACDA suppons the proposed Agreement and cites the following reasons:
First, the proposed Agreement meets all the requirements of the Atomic Energy Act and
. thus includes effective guarantees, assurances, and safeguards against misusc of nuclear equipment or material supplied under the agreement.
Second, the proposed Agreement is an appropriate response to the very important decision made by Ukraine at independence to become a non-nuclear-weapon state and to its subsequent actions to accept IAliA safeguards on all its civil nuclear activitics, to accede to the NPT, to a!Tirm its status as a party to START 1, and to ensure the removal of all nuclear weapons from its territory to Russia.
Third, Ukraine has taken imponant steps toward establishing an effective system for the protection and accounting of nuclear material in its civil nuclear program and for the implementation of a nuclear expon control program based on intemational norms. Moreover, after much deliberation Ukraine appears to have taken the decision necessary to withdraw from any cooperation with Iran's nuclear program.
Fourth, the proposed Agreement opens up the possibility of expanding civil nuclear cooperation between our two countries and thereby demonstrates the benefits that can accrue to countries that make strong commitments to nuclear nonproliferation. This agreement also helps to fulfill U. S. obligations under Article IV of the NPT which encourages countries with
. advanced nuclear programs to engage in the fullest possible cooperation with NPT parties in the peaceful uses ofnuclear energy.
It will be imponant to continue regular bilateral consuhations with Ukraine across a wide range of nuclear nonproliferation issues with particular emphasis on nuclear export policies and physical protection of caclear material. He process of negotiating this agreement resulted in un expansion of bilateral consultations on nuclear nonproliferation between the United States and Ukraine and its implementation should further strengthen this cooperation.
Thus, on the basis of the analysis in this assessment statement and all pertinent information of which it is aware, the Unhed States Arms Control and Disarmament Agency has arrived at the following assessment, conclusions, views and recommendations:
- 1. Thc . afeguards and other control mechanisms and the peaceful use assurances in the proposed Agreement are adequate to ensure that any assistance furnished thereunder will not be used to further any military or nuclear explosive purpose.
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- 2. The proposed Agreement meets all the legal requirements of the Atomic Energy Act and the NNPA. s
- 3. Execution of the proposed Agreement would be compatible with the nonproliferation program, policy, and objectives of the United States.
- 4. It is recommended that the President determine that the performance of the proposed Agreement will promote, and will not constitute an unreasonable risk to, the common defense and security; and that the President approve and authorize the execution of the proposed Agreement.
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1 Attachment 6 NRC Staff Criterion-By-Criterion Analysis l
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NRC Staff Criterion-by-Criterion Analysis Criterion 1: "a guaranty by the cooperating party that safeguards as set forth in the agreement for cooperation will tm maintained with respect to all nuclear materials and equipment transferred pursuant 1 hereto, and with respect to all special nuclear material
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used in or produced through the use of such nuclear materials and equipment, so long as the material or equipment remains under the jurisdiction or control of the cooperating party, irrespective of the duration of other provisions in the agreement or whether the agreement is terminated or suspended for any reason;"
This criterion is met through the obligations which will be undertaken in Article 4 " Transfer of Material, Equipment and Components," and Article 9 " Safeguards" of the Agreement for i Cooperation. '
Criterion 2: "in the case of non-nuclear-weapon states, a requirement, as a condition of continued U.S. nuclear supply under the agreement for cooperation, that International Atomic Energy Agency (IAEA) safeguards be maintained with respect to all nuclear materials in all peaceful nuclear activities within the territory of such state, under its jurisdiction, or carried out under its control anywhere;"
This criterion is met through the obligations which will be undertaken in Article 9 " Safeguards" of the Agreement for Cooperation.
It should be noted that the civilian nuclear facilities in Ukraine are subject to full-scope safeguards under the IAEA-Ukraine safeguards agreement.
The IAEA has experienced difficulties in ascertaining the completeness and correctness of l Ukraine's initial nuclear material declaration, due to incomplete record keeping by the former Soviet nuclear facility operators, and the lack of modern computers and measurement equipment. These problems have been somewhat ameliorated through equipment donations, training, and financial aid from Westem donor countries, as well n by commencing the ;
establishment of a modem material control and accounting (MC&A) program. However, it is still possible that nuclear materials may be found in unmonitored waste dumps or in other locations, a situation not uncommon in most of the new republics.
Criterion 3: "except in the case of those agreements for cooperation arranged pursuant to subsection 91c., a guaranty by the cooperating party that no nuclear materials and equipment or sensitive nuclear technology to be transferred pursuant to such agreement, and no special nuclear material produced through the use of any nuclear materials and equipment or sensitive nuclear technology transferred pursuant to such agreement, will be used for any nuclear explosive device, or for research on or development of any nuclear explosive device, or for any other military purpose;"
This criterion is met through the obligations which will be undertaken in Article 8 "No Explosive or Military Application" of the Agreement for Cooperation.
In addition to the obligations Ukraine has undertaken as a party to the NPT, Ukraine
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2 demonstrated its commitment to becoming a responsible nuclear country by ridding itself of its nuclear weapons inheritance and adopting all relevant non-proliferation obligations. It has enacted laws which prohibit future nuclear weapons research, production, or possession and instituted export controls. Ukraine has also been very active in establishing regional confidence-building measures.
Criterion 4: "except in the case of those agreements for cooperation arranged pursuant to subsection 91c., and agreements for cooperation with nuclear-weapon states, a stipulation that the United States shall have the right to require the return of any nuclear materials and equipment transferred pursuant thereto and any special nuclear material produced through the use thereof if the cooperating party detonates a nuclear explosive >
device or terminates or abrogates an agreement providing for IAEA safeguards; I This criterion is met through the obligations which will be undertaken in Article 11 " Cessation of Cooperation" of the Agreement for Cooperation.
1 Criterion 5: "a guaranty by the cooperating party that any material or any Restricted Data ;
transferred pursuant to the agreement for cooperation and, except in the case of agreements arranged pursuant to subsection 91c.,144b.,144c., or 144d., any production or utilization facility transferred pursuant to the agreement for cooperation or any special nuclear material produced through the use of any such facility or through the use of any material transferred pursuant to the agreement, will not be transferred to unauthorized persons or beyond the Jurisdiction or control of the cooperating party without the consent of the United States;"
This criterion is met through the obligations which will be undertaken in Article 3 " Transfer of Information," Article 4 " Transfer of Material, Equipment and Components," and Article 5 -
" Storage and Retransfers" of the Agreement for Cooperation.
It should be noted that Restricted Data shall not be transferred under this agreement (Article 3.3).
Criterion 6: "a guaranty by the cooperating party that adequate physical security will be maintained with respect to any nuclear material transferred pursuant to such agreement and with respect to any special nuclear material used in or produced through the use of any material, production facility, or utilization facility transferred pursuant to such agreement;"
This criterion is met through the obligations which will be undertaken in Article 7 " Physical Protection" of the Agreement for Cooperation.
Physical protection was carried out by the Soviet military during the Soviet era. Under IAEA coordination, Ukraine is working with donor countries, including the U.S., to establish a modem material control and accounting (MC&A) and physical protection system. In doing so, past
Soviet-era inventory irregularities have been discovered and Ukraine has committed to undertake efforts to address the identified irregularities.
NRC has t;een providing assistance to the Ukrainian Nuclear Regulatory Administration in the area of material protection, control, and accountability (MPC&A), funded with approximately $1 million from the U.S. Cooperative Threat Reduction (CTR) program for assistance to the Newly Independent States (NIS) of the former Soviet Union. NRC is assisting Ukraine in the development of MPC&A regulations, associated regulatory guidance and mechanisms for assuring compliance (e.g., licensing and inspection programs).
Criterion 7: "except in the case of agreements for cooperation arranged pursuant to subsection 91c.,14b.,14c., or 14d., a guaranty by the cooperating party that no material transferred pursuant to the agreement for cooperation and no material used in or produced through the use of any material, production facility, or utilization facility transferred pursuant to the agreement for cooperation will be reprocessed, enriched or (in the case of plutonium, uranium 233, or uranium enriched to greater than twenty percent in the isotope 235, or other nuclear materials which have been irradiated) otherwise altered in form or content without the prior approval of the United States;"
This criterion is met through the obligations which will be undertaken in Article 6 -
" Reprocessing and Enrichment' of the Agreement for Cooperation.
Criterion 8: "except in the case of agreements for cooperation arranged pursuant to subsection 91c.,14b.,14c., or ind., a guaranty by the cooperating party that no .
plutonium, no uranium 233, and no uranium enriched to greater than twenty percent in j the isotope 235, transferred pursuant to the agreement for cooperation, or recovered .
from any source or special nuclear material so transferred or from any source or special nuclear material used in any production facility or utilization facility transferred pursuant to the agreement for cooperation, will be stored in any facility that has not been approved in advance by the United States;"
This criterion is met through the obligations which will be undertaken in Article 5 " Storage and ,
Retransfers' of the Agreement for Cooperation.
Criterion 9: "except in the case of agreements for cooperation arranged pursuant to subsection 91c.,14b.,14c., or 14d., a guaranty by the cooperating party that any special nuclear material, production facility, or utilization facility produced or constructed under the jurisdiction of the cooperating party by or through the use of any sensitive nuclear technology transferred pursuant to such agreement for cooperation will be subject to all the requirements specified in this subsection."
This criterion is met through the obligations which will be undertaken in Article 2 " Scope of Cooperation" of the Agreement for Cooperation.
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Attachment 7 Draft Chairman Letter to the President i
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The President The White House '
Washington, DC 20500
Dear Mr. President:
In accordance with the provisions of Section 123 of the Atomic Energy Act, as amended, the Nuclear Regulatory Commission has reviewed the proposed Agreement for Cooperation with Ukraine and supporting draft documents. It is the view of the Commission that the proposed Agreement includes all of the provisions required by Section 121 of the Atomic Energy Act, as amended. The Commission therefore recommends that you make the requisite statutory determination, approve the Agreement, and authorize its execution.
R0soectfully, Shirley Ann Jackson i
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