ML22230A180
| ML22230A180 | |
| Person / Time | |
|---|---|
| Issue date: | 04/20/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780420 | |
| Download: ML22230A180 (1) | |
Text
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
MEETING ON NRDC REQUEST FOR HEARING IN TARRAPUR EXPORT LICENSE Place -
Washington, D. C.
Date -
Thursday, April 20, 1978 ACE -FEDERAL REPORTERS, INC.
Offici.a.l Reporters 444 North Capitol Street Washington, Q_(_ 20001 NATlONWICE COVERAGc
- DAILY Pages 1-50 Telephone:
(202 ) 3-47-3700
(_
DISCLAIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on April 20, 19-78 in the Commission's offices at 1717 H Street, N. \\1/., v/ashington, D. C.
The meeting was open to public att~ndance and observation.
This transcript has not been revie1t1ed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.
No pleading or other paper may be filed with the-Commission in any proceeding as the result of or addressed to any statement or argwnent contained herein, except as the Commission may authorize.
J-'
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25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Meeting on NRDC Request for Hearing in Tarrapur Export License Commission Meeting Room 1717 H Street Northwest Washington, D.C.
April 20, 1978, 1:00 p.m.
PRESENT:
Commissioners Hendrie, Kennedy, Gilinsky and Bradford.
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PROCEEDINGS CHAIRMAN HENDRIE:
.If we could c.ome to order.
The Commission meets this afternoon to consider 4
a export license matter, specifical.ly the License Application 5
No. 1060, and related considerations 6
I am going to start ou.t by asking the O.ff ice of 7
International Programs' representatives to summarize the 8
chronology of events on the 1060 application, and then I 9
have some questions for the General CounselJs Office.
10 Jim, are you going.to do this chore fo.r.us?
11 MR. SHEA:
Fine *. I would be glad to.
12 CHAIRMAN HENDRIE:
Go ahead.
13 MR. SHEA:
We have prepared a chronology of the 14 significant events relating to the License XSNM 1060, and.I 15 believe you received copies. of that.
16 We will also provide a copy to the stenographer 17 to insert into the recor.d of the proceedings.
18 (Document follows.)
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SUMMARY
CHRONOLOGY APPLICATION XSrlM-1060 AND RELATED MATTERS JaT1uary *12, 1977 January 17, 1977 February l, 1977
- February l O, 1977 March 3, 1977 March 21, 1977 Apri l 11, l 9 77 June 21, 1977 June 22, 1977 June 24, 1977 NRC receives Edlow International application, dated January 3, for a l icens*e to export 7,638 kilograms of uranium, enriched to 2.15 percent and containing 156.12 kilograms of uranium-235.
Application accompanied by letter from the Indian Government, received January 11, confirming the end-use of the material for the Tarapur Atomic Power Station (TAPS).
Application XSNM-1060 forwarded for Executive Branch review.
Memorandum to the Commission fon1arding Applica-tion XSNM-1060 for information.
NRDC files motion requesting Commission to con-solidate the proceedings on ApplAcation XS~M-845 (v1hich r1as still under review)/and Application XSNM-1060.
1 OELD answered this motion on February 22.
NRDC filed reply to OELD answer on March 2.
Commission briefing on Tarapur by State and ERDA.
- commission meeting on NRDC motion to consolidate proceedirigs and other aspects of nuclear supply to India.
Commission briefing on US-India nuclear cooperation and supply issues.
Commission discussion of Executive Branch views on Application XSNM-845.
Commission memorandum and order on consolidation of proceedings on Applications XSNM-845 and 1060.
Commission discussion of XSNM-845 and nuclear supply issues.
June 28, 1977 June 30, l. 977 September 1977 September-October 1977 December 1977 January 1978 January 26, 1978 February 3, 1978 Commission discussion of XSNM-845 and nuclear supply issues.
Commission memorandum and order stating, among other things, that a 11 statutory requ i rem en ts for issuance gf XSNM-845 were met and approving staff's recomm~ndation that XSN~-845 be issued.
Export License XSNM-845 i~sued authorizing export of 12,261 kilograms of low-enriched uranium to India for TAPS.
Commission discussion of XSNM-845, (Court action stayed issuance of XSNM-845; the court subsequently lifted its stay.)
Prime Minister Desai statement includi.ng:
"Si.nee the very beginning, my poli,cy ha.s been that we have no need whatsoever for an atomic bomb."
DOE expert visit to Bombay and Tarapur on spent fuel disposition matter..
DOE/GE expert visit to India on spent fuel dispo-sition matter.
President Carter visit to India.
(US Congressional delegation and UK Prime Minister Callaghan also visit India during this period.)
Executive Branch analysis and favorable recommenda-tion of January 25 received by NRC.
(Includes the Indian Government's assurance letters of January and December 1977 on applicability of agreement fot cooperation and authorization of TAPS to receive the material.)
IP forwards advance copy of Executive Branch views for the Commission's information.
February 14, 1978 February 21, 1978 February 22, 1978 February 23, 1978 March 6, 1978 March 10' 1978 March 13, l 978 March 16, 1978 March 23, 1978 NRDC files two motions: the first requesting a resumption of the hearing on continued export of nuclear fuel to India and contending that the Commission cannot make the requisite determinations for export on the basis of the Executive Branch analysis; and the second requesting-~hat the Commission consolidate the proceedings on XSNM-1060 and XSNM-1222 (which is still under review by the Executive Branch).
State letter of February 21, 1978 opposing further hearing in conjunction with issuance of XSNM-1060 and expressing no objection to consolidation on the same basis as Commission had consolidated XSNM-845 and 1060 on June 22, 1977 (which allowed for issuance of the former as noted).
NRC staff answer to NRDC motions with views that the Commission should not order a hearing in con-junction with XSNM-1060 and, if the Commission wished to consolidate the proceedings on XSNM-1060 and 1222, it should be done in a manner which will not delay action on the former.
SECY-78-105 forwarded to the Commission with staff 1s conclusions and recommendation that XSNM-1060 be issued.
Commission* meeting on NRDC motions and XSNM-1060.
Resulted in consolidation of the pro-ceedings on 1060 and 1222.
Executive Branch forwards supplementa_ry rnateri~l on nuclear supply to India, President Carter signs the Nuclear Nonproliferation Act of 1978.
SECY 78-105A forwards March 6 supplementary Execu-tive Branch material to the Commission.
Commission discussion of NRDC motions and other aspects of XSNM-1060, SECY-78-105B (CONFIDENTIAL) forwards several cables highlighting relevant recent developm~nts for the Commission and confirms the staff vievJ that the, proposed export meets applicable statutory re-quirements (including those in the Nonproliferation Act).
March 29, 1978 March 30, 1978 April 6, 1978 Commission requests Executive Branch analysis of new requirements under the Nonprol~feration Act.
SECY-78-105C forwards March 29 memorandum from State addressing XSNM-1060 and other pending applicatiD.n.s jn terms of requirements of the Nonproliferatibn Act.
~ECY-78-105D forwards State's March 30 memorandum which includes detailed analysis of the proposed export in terms of each requirement under the Nonprol if era ti on Act.
Staff reiterates reco111-mendation that XSNM-1060 be issued.
OELD and IP comments on proposed export under XSNM-1060 and fulfillment of the requirements of the Nonproliferation Act.
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3 CHAIRMAN.HENDRIE:
Please do.
MR. SHEA:
1 might briefly run through some of 3
the highlights of matters related to 1060, to set the 4
framework for the mseting.
This license, which is for 5
the shipment of low-enriched uranium*-- To be precise, 6
7638 kilograms of uranium enriched to a maximum of 2.15 7
percent.
8 This license is the.latest to be considered by 9
the Commission in a series of licenses for low-enriched 10 uranium for export to th Tarapur Reactor in.India.
11 12 13 Two previous licenses have been issued in the J76-J77 period.
License 805 and 845.
In 1976 there was also a hearing held by the 14 Commission on issues related to the Tarapur fuel supply.
15 This.particular license was received by NRC 16 in January of 1~77.
It was referred to the Executive 17 Branch, as is standard with our licenses, and views were 18 received back from the Executive Branch in January of this 19 year, with favorable recommendations regarding issuance of 20 21 22 23 24 25 the license.
During this period there were -- and subsequently there have been discussions between the Commission and the Executive Branch regarding fuel supply to India and nonproliferation developments with regard to that country.
The Nonproliferation Act was signed March 10th of
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4 entered into force at that time.
And it prescribes certain specific criteria for issuance of export licenses.
3 The Executive Branch views had been received, as 4
I noted, prior to the Act and State has sent to NRC 5
additional detailed information regarding each of the 6
c r i ter-1 a which has been forwarded to the Cammi ssi on.
7 The Executive Branch views have favored issuance, 8
and the NRC Staff in its views, they noted the Commission 9
has also recommended that the license be issued and has 10 noted that, in the view of the NRC Staff, the statutory
.11 criteria or their equivalent, are met for this license.
12 I think, Mr. Chairman, that those are the high-13 lights of matters that have occurred with relation to this 14 license.
There is, in addition, a matter o+/- the question 15 of a hearing for the license that I might note, that is 16 mentioned in the chronology.
17 In February of this year NRDC had filed two 18 motions, the first reque~ting a resumption of the hearing 19 on continued export of nuclear fuel to India and contending 20 that the Commission cannot make the requisite determination 21 for export on the basis of the Executive Branch analysis.
22 The NRDC motion also requested that the 23 24 25 Commission consolidate the proceedings on this license with another license, XSNM 1222, which was applied for in November of last year and is still under review by the Executive Branch.
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5 The Commission met in February -- February 23 and consolidated the proceedings on 1060 and 1222.
The 3
NRC Staff and also the Executive Branch have, in their 4
views on this matter, opposed a hearing held in conjunction 5
with 1060.
6 And I think that would be a quick overview of 7
the matters related to 1060, unless there are questions on 8
the chronology.
I could offer at this point, if it would 9
pro.ve useful, to have Mike Guhin describe in somewhat more 10 detail, the basis for the S.taff views, including how each
.11 12 13 of the criteria or their equivalents were considered to have b e en me t. or we co u l d de f er t ha t u n t i l l at er i f you*' d l i k e
- CHAIRMAN HENDRIE:
I think it would be useful 14 to have it in the record of the meeting.
I trust you will 15 provide it in more summary form than the.original document.
16 (Laughter.)
17 MR. GUHIN:
I hope so.
18 I would like just briefly to address the 19 criteria, focusing primarily on the ones which are in 20 Section 127 of the Atomic Energy Act, as a result of the 21 recent enactm.ent of the Nuclear Nonproliferation Act and 22 23 24 25 also comment even more briefly on the other aspects of the export as they related to other provisions of the bill.
As the Chairman h~s said, these have been set forth in much detail in our written submissions to the Commission.
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6 The ~irst criteria, the Act essentially sets forth six criteria regarding exports, applicable to this 3
kind of export, special nuclear mBterial, and the f~rst 4
one, as we know, deals with the IEA safeguards being 5
applied as.required by Article 32 of the Nonproliferation 6
Treaty, both to that material and to any special nuclear 7
material pr.educed through its use.
8 We hav.e noted in -- All of the submissions have 9
noted that.the Trilateral Safeguards Agr.eement between the 10 United States, the lAEA and the Government of India has been
.I I applied and has been enforced since January of 1971.
12 This is a safeguards agrEement under 13 INF-CIRC-66, Revision 2, which, as has been mentioned also 14 before, is not a safeguards agrEements pursuant to the NPT.
I 5 However, it has b.een noted in our other submission 16 on Aprii 6 to the Commission, it has bEen noted by the 17 Executive Branch that it has been an common interpretation 18 of the parties that Article 32 permits exports to non-NPT, 19 and that is a generally agreed interpretation.
20 In fact, the ComissionJs memorandum and order 21 o.f June 28 specific.ally addressed this question and came 22 to the conclusion that if the export to Tar.apur.is to be 23 24 25 inimical, than it would have to be attributable to some.other reason and not the fact that this is under an insert 66 or a non-NPT type safeguards agreement.
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To skip slightly, as you know, Section 128 of the Atomic Energy Act now re~ers to a full scope safeguards 3
requirement.
This criterion is not applicable to this 4
export in the Staff's view, because this export, as we know, 5
will take pla.ce shortly after issuance of the license, if 6
such is.to be issued, and, therefor.e, does not fall into the 7
time +/-rame.
That provision applies only to exports for 8
Which we have a application which is submitted 18 months 9
after the Act, or for an expor.t which is to take place 24 10 months after the submission of the application *
. I I And this one falls in neither of those categories.
12 CHAIRMAN HENDRIE:
24 months after the Act?
13 14 15 Act.
MR. GUHIN:
24 months after enactment of the COMMISSIONER KENNEDY.:
That is for the actual 16 deli very.?
17 MR. GU HIN:
That*' s for the actual de.Ii very.
We 18 could have an application today which said, r~m going to 19 ship 25 months from now, and the full scope safeguards 20 requirement would be in effect.
21 The second criterion mandated in the law, ~tates 22 that no such materia.l proposed to be exported or previously 23 24 25 exported and subject to the a ppl i cable agr_eement for c.ooperation and no special nuclear material produced through the use of such materials will be used for any nuclear
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the use of such materials will.be used for any nuclear explosive device or for research on or deNelopment of any nuclear explosive device.
As has been noted previously, this mat.tar is not explicitly addressed in these terms in either our 6
agreement with India or most of our other agreements with 7
most other countries.
These agr.eements which were negotiated 8
and amended, many of them in the early J70s, of course, 9
say that no material or equipment or produced material will 10 be used for any atomic weapon or will be used for any
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.research or development on atomic weapons.
12 However, there are suppl a.mental under standings in L3 14 15 almost of the cases in reviewing this criteria.
In many cases, for example, a country which is a party to the NPt has clearly undertaken an international obligation, has 16 provided assurances that it will not do anything in terms 17 of manufacturing or developing nuclear explosives for 18 any purpose, whatever they are called.
19 In the case of India, as the Commission knows, 20 we have a letter from the Indian Government in September 21 1974, which very clearly states that no special nuclear 22 material -- or that any special nuclear material which is 23 24 25 made available for, used in, or produced through the use of the Tarapur reactor, will be used exclusively for the purposes of that reactor, and for no other purpose, unless
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the two parties agree.
As the Executive Branch has stated in its submission, the U.S. Government would obviouslyu not agree to the use of.U.S.-supplied material in any nuclear explosive device or for any research or deMelopment of any nuclear explosive device.
In contrast to Criterion 1, however, where we have concluded that is clearly met, I think the Staff would say on Criterion 2, as has.the Executi :ve Branch, that the equivalent of the criteria mandated by law is clearly met.
The third criterion refers to the application of adequate physical security maasures to the material and to 14 the idea that they will be maintaine As you know, the Staff 15 is still working on its procedures and regulations dealing 16 with physical security, as mandated by Congress and those will 17 be to the Commission, we hope, in the very near future.
18 As noted in the Executive Branch submission, 19 however, the Department of Energy team has visited India, has 20 specifi.cally visited the Tarapur facilLty and has concluded 21 that the physical security there is adequate and is comparable 22 and consistent with that envisioned in the internationally 23 24 ag~eed standards under the IAEA INF-CIRC 225.
I added to that point in our Apri1 6 memorandum, 25 of course, that the NRC Staff has also.visited Tarapur for
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10 the very purpose of looking at the facility and the physical security measures there, and they have concluded that they 3
are not only adequate~ but that they are good.
4 As you know, essentially, under the international 5
s,tands, spen.t full -- and this really falls into Category 2, 6
levels of protection,.and the Staff has noted to me they 7
come much closer to protecting it according to Category l.
8 In other words, they have more protection than 9
they would actually nBed under the internationally agreed 10 standards *
. 11 The fourth criterion says no such material proposed 12 13 to be exported and no special nuclear material produced through the use of such material will be retransferred to 14 the jurisdiction of any other nation or group of nations, 15 unless the prior approval of the U.S. is obtained for such 16 retransfer.
17 I think this is clearly spelled out in the 18 Agrsement for Cooperation itself under Article 7 and Article 19 2 of the Agreement, where both the material to be exported 20 and produced special material may not be transferred beyond 21 the jurisdiction of India without the approval of the United 22 States Government.
23 The fifth criterion.states that no such material 24 25 proposed to be exported and n.o special nuclear material produted through the use of such material will be reproduced
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.l I and no irradiated fuel elements containing such material removed from a reactor shall be altered in form or content, unless the prior approval f the U.S. is obtained for such reprocessing or alteration.
The Agr.eemen t for Cooperation addresses the reprocessing -- Article 2-E is the specific provision --
and states that it is agreed that when any special nuclear material utilized in the Tarapur Atomic Station requires reprocessing and recourse is not taken by the Government of India to the provisions of Article 6-C of this agreement, such reprocessing may be performed in Indian facilities upon a joint determination o+/- the parties that the provisions of the Safeguards Article may be effectively applied, or in such other facilities as may be mutually agreed.
As noted in our submissions and in the Executive Branch, the bottom line to this is tha~ there can be no joint determination without U. S. agr.eement; however, since and particularly with respect to the mutual agreement referred to on facilities outside of India.
In view of the wording here though and the reference to the safeguards, both the Executive Branch and the Staff have said that the equivalent of this criterion is met, and we think that this is provided for clearly in.the Agreement for Cooperation.
I~d like to just mention two aspects.
As we know,
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that the recently enacted Nuclear Nonproliferation Act also ref~rs to conduct which upon Presidential determination could 3
re.sul t in the termination of nuclear expor-ts.
4 For example, the explosion of a device by a 5
nonnu~lear weapon country, or a material breach of a 6
safeguards agreement or agrEement with the U.S.
7 The Act also explicitly defines this, however, 8
as action aitei the effective date of this act, which is 9
March.10, 1978, and in this regard, it is noted in all 10 our papers, therefore, this would apply to the proposed
.11 export at hand.
12 Finally, in section 126 of the Act, the Executive L3 Branch is asked to addre.ss in its submission to the Commission 14 whether India has adhered to the provisions of the.U.S.-.India.
15 The Executive Branch has made this finding, has so informed 16 the Commission, and the Staff, of course, concurred in that 17 finding,.and has seen no evidence to the contrary 18 Finally, I would like to revert back to one 19 other point.
Under the no-nuclear-explosive-use criterion 20 and the (blank
) has been highlighted in the Executive 21 Bran ch submissions and.al so in the Staff-' s have been the 22 developments in India since 1974 and since the Commission*'s 23 June 1976 hearing and,_particularly, the statements by the 24 Government of India and its assurances regarding the fact 25 that it will not authorize any further explosions, such as
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I believe that this further reinforces at lea~t the evidence with respect to this criterion.
brief.
That is, I hope, a brief enough summary.
Well, brief enough, not too Are there ques~ions at this point?
COMMISSIONER KENNEDY:
Not at this point.
COMMISSIONER BRADFORD:
Not yet.
CHAIRMAN HENDRIE:
I will ask the -- Carl, are you going _to speak for the -General Counsel-'s Office here, ta just summarize for us what I will £all the Commission~s litigation position in this matter.
Mli. STOIBER:
All right.
Mr. Chairman, as you know, the matter that we~re confronted with today is the subject of a lawsuit brought against the Commission by several intervenor or public interest groups in 1976, related to the nature of the hearing which the Commission provides in 1976 on these issues.
The case which basically involved whether or not the intervenors were entitled, as a matter of right under the Atomic Energy Act, _to participate in _the proceedings, and whether or now we are compelled as a matter of law to grant them an adjudicatory or trial type hearing.
These issues were fully briefed before the U.S. Court of Appeals
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10 JI 12 IJ 14 15 16 17 18 19 20 21 22 23 24 25 14 for the District of Columbia, as long ago as December of 1976, and we still await the decision of the Court in that matter.
When the Nuclear Nonproliferation Act was passed and signed by the President in March of this year, March IO, our off ice prepared a supplemental memorandum of law which we submitted to the Court of Appeals, stating our view of the effect of the new statute on the lawsuit, and our contention, basically, was that the lawsuit was, in effect, decided by the Congress by virtue of its decision that the Commission would have full discretion in determining what kinds of hearings intervenors would be afforded in NRC export licensing proceedings.
So, on March 13, we did so advise the Court.
In a response the intervenors requested an extended briefing schedule.and some argument.
We responded by saying we did not feel that was necessary, that all of the issues had been briefed.
So, to reach really the conclusion of what effect the pending litigation would have on the op.tions the Commission now has for action, I would have to say that we believe the Commission can go forward with action on License XSNM-1060 without affecting substantially or in any way the 1 it iga tion. po s.ture in the Cour.t of Appeals.
As you know, there is another license application
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15 the Government of India for fuel to the Tarapur facility, XSNM-1222, also pending before the Commission, and although 3
we have not received the Executive Branch views on that 4
license at this time, and, the re fore, could not act on 5
that license, it would remain pending before the Commission, 6
even if action were taken on XSNM-1060.
7 There.fore, the 1 it igat ion_ posture in the Court 8
is preserved and we would ot have rendered moot any claims 9
to relief that the petitioner might have in that action.
10 So that is basicaly the litigation posture.
11 I might go on to discuss the hearing request.
12 On February 13, the petitioners also filed a motion for a 1.3 further hearing in this matter, rasing issues of some 14 novelty concerning recent developments in the general 15 situation with respect to Indian exports.
16 The Commission, as Jim Shea said, along wLth 17 that application there was also a motion for conso-1idation 18 of the two licenses, which the Commission did, in fa.ct, and 19 grant on March 6, so the licenses are, in fact, conso-1idated 20 at this point.
21 This does. not preclude the Commission from acting 22 on either of the licenses separately, but what it does is 23 24 25 to maintain the procedural posture as a single proceeding, rather than two separate proceedings.
We forwarded also on February 21 and March 30,
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16 memoranda discussing what options the Commission had in terms of granting or denying a hearing, and I think ~here 3
are basically four options here, which I will run through 4
briefly for you again.
5 Three of.those would be related to --
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25 17 COMMISSIONER KENNEDY:
Excuse me. I am correct that that request for hearing still lies before the Commission?
MR. STROIBER:
Yes, it does.
Heretofore, before acting on a license, the Commission has felt it desirable to dispose of hearing request claims in advance of moving to the license.
Of the four alternatives, three would of necessity be connected to any action you might take on the license.
The first alternative would be to decide not to take action upon the license until you held a hearing.
Under the new statute, you can determine that it would be in the public interest and would be of assistance to you in reaching your decision to have such a hearing and therefore if you went forward with that kind of an approach the time limits provided in the bill would all be in effect tolled,. and the time limits would only resume again after the Commission had completed its hearing.
COMMISSIONER KENNEDY:
Excuse me. I want to be sure I understand this procedurally.
Given the fact that 1060 and 1222 are now con-solidated, does that all apply if the action were taken on 1060 with the assumption that a hearing would be held on 1222?
I think that is procedurally possible.
MR. STROIBER:
Yes.
COMMISSIONER KENNEDY:
If one did, what would the
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25 18 time limit effects be then?
MR. STROIBER:
Well, if you took action of course on 1060, at this point, and decided to hold a hearing on 1222, then the time limits would then pegin to run.
It would only be tolled as with XSNM-1222.
As I am going to point out here, there are now three options for the Commission under the new statute.
This is the first meeting we have had really to discuss an export license under the new statute, and heretofore the Commission could either deny or grant a license and its decision was basically unencumbered by any other involvement of other agencies.
Now, under the current statute, if the Commission decides to either deny a license or that it can not decide upon the license, the statute prov~des that that license will be referred to the President for his judgment.
In either of those cases, either in the case of a denial or a referral, it seems to me that the hearing issue becomes moot, because at that stage the Commission no longer has anything before it at least with respect to XSNM-106 to hold a hearing on.
It could, of course, hold a hearing on XSNM-1222, but as far as XSNM 1060 is concerned, a hearing need not be granted.
COMMISSIONER KENNEDY:
That would be an odd procedure, wouldn't it?
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25 19 MR. STROIBER:
Yes.
COMMISSIONER KENNEDY:
To return 1060 to the President, because,,* we couldn't decide and elect then to hold a hearing on 1222.
MR. STROIBER:
Well, it is certainly legally possib e but it would be rather odd, given the fact that there would probably be a number of activities going on in the Government at that stage, and since the Congress is involved, one would anticipate they would be looking at it also, and to have two parallel proceedings might be confusing.
The final option, of couree, is to grant the license and as I have explained before, if you grant the license, we believe that the hearing issue then attaches to license XSNM 1222, and that you could take that step and still preserve the rights of the parties before the court.
So those are the four options here.
Basically the hearing issue should not be driving your consideration at this point.
CHAIRMAN HENDRIE:
Thank you.
Questions?
COMMISSIONER KENNEDY:
Not just now.
CHAIRMAN HENDRIE:
All right. Let's then turn to the 1060 issue before the house.
Do you have any druthers on which way I
go first?
COMMISSIONER KENNEDY:
Well, to go back to something Carl said, are we going to talk about the issuance of a
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20 license or whether a hearing should be held?
CHAIRMAN HENDRIE:
I want first to determine whethe the Commission is able or unable to make the findings required under the Act with regard to the issuance of the 1060 license.
What we do about a hearing depends on how that decision goes.
COMMISSIONER KENNEDY:
No, not necessarily.
If I understand the procedure, our decision as to whther we can come to a conclusion, or reach one yes or no, would follow a hearing, if there was to be a hearing. We wouldn't reach that conclusion before we had a haring.
The hearing would be presumably to illucidate the issues and help us.
I think that is exactly what the law says.
CHAIRMAN HENDRIE:
If you want to deal with the question of whether the Commission would like to hold a hearing before it deals with the 1060 license, we can indeed consider that for a moment.
Let me recommend to you that we have all studied this matter with very considerable care and it is my impression from discussions with each of you that in fact it would not be our intention to fu~ther prolong the decision on the 1060 matter in order to accommodate a hearing.
COMMISSIONER KENNEDY:
No one has asked me that 25 question and I would like to be able to register my views on
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it, which is I would vote for a hearing, if that was offered.
CHAIRMAN HENDRIE:
Before the 1060?
21 COMMISSIONER KENNEDY:
Yes.
Indeed exactly as I indicated on March 6, I believe it was, at the time that matter was discussed last by the Commission, where I think those who at the time thought a hearing might be a good idea, wondered what others might think and It said I would certainly make it unanimous that we should have a hearing, if others felt we should have one.
I have not changed my view in this regard.
CHAIRMAN HENDRIE:
Duly noted.
Let me say my own view is that this matter has now gong sufficiently long so that to further prolong it for the some months which a hearing would inevitably take --
COMMISSIONER KENNEDY:
How long would it take?
Thirty ~ays?
MR. STROIBER:
We forwarded in the February 21 memorandum, I believe, an estimate of the time it would take an I think the estimate was on the order of a minimum of 30 days and perhaps longer, depending on the extent to which you wanted to have written exchanges and an oral proceeding.
I think 30 days is a rather optimistic estimate of how long it would take to conduct a hearing that was 25 meaningful at all.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 CHAIRMAN HENDRIE:
I really think by the time the Commission were able to come to a meeting after the hearing, a deliberate opinion, we are talking more about 60 days.
VOMMISSIONER KENNEDY:
Suppose the Commission today, given its understanding of the fact available to it today, and not having availed itself of the views which might be presented to it in a hearing, was unable to reach a conclusion'j How long then wou-J:,d,.*.it be, in the most optimisti view, before a license could issue?
If it were to issue at all.
MR. STROIBER:.::You mean if this were then referred to the President?
COMMISSIONER KENNEDY:
Yes, that being one of the options.
MR. STROIBER:
This depends, of course, on how quickly the Commissioners were able to state the reasons why they had taken the view that they had.
Under the statute, when the Commission decides to refer a matter to the President, in new section 128(1) (b) it requires that the decision shall be submiJtted.:iand shall include an explanation of the basis for the decision, and any dissenting or separate views.
If the dissenting or separate views could be Ace-Federal Reporters, Inc.
produced within a week, for example, that would be one 25 week before the 60 day period that the President would have --
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25 23 well, you start with that period.
Then the President would undoubtedly take a period of time before he made his decision on whether or not he wished to either authorize the license or to deny it.
I can't estimate how long the President would take to make that decision.
At the point that he makes his decision, there is a further 60-day period in which the Congress has an opportunity to reverse or to confirm the President's decision.
So if the decision were taken today, my own guess would be that it would be between 60 to 90 days before the license could issue.
COMMISSIONER KENNEDY:
So.that conceivably, from a time standpoint alone, conceivably, if the Commission elected to have a hearing, a license might issu~ sooner?
MR. STROIBER:
Conceivably.
COMMISSIONER KENNEDY:
By a period of maybe 60 days.
CHAIRMAN HENDRIE:
It is also conceivable that the license, in the event of a positive vote this afternoon, that the license issues how fast can you produce a license when the Commission has told you to?
MR. SHEA:
In about 30 seconds, assuming it is typ~d, which it is.
CHAIRMAN HENDRIE:
At the close of business tod~y.
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25 24 COMMISSIONER KENNEDY:
.Did you type this one?
CHAIRMAN HENDRIE:
We will be getting unauthorized expenditures.
COMMISSIONER KENNEDY:
Let the record be clear that at least this Commissioner does not believe the interest of tim is necessary served by a decision not to hold a hearing.
Indeed I would suggest that the time consideration is not one which ought to govern that decision.
CHAIRMAN HENDRIE:
Do you want to deal with the question of a hearing, before we close on 1060?
COMMISSIONER GILINSKY:
A question of the hearing prior to 1060?
Yes.
CHAIRMAN HENDRIE:
Let's get the division of the house.
We may have a shorter meeting this afternoon than I anticipated.
I will tell you I am against it in the strongest terms.
I feel we have already stretched out this procedure to the point where it really runs beyond reason and I must confess I have been the most recent adder to that time myself, I am sorry to say.
Can I have opinions from up and down the table?
Mr. Kennedy indicates he would vote in favor.
COMMISSIONER KENNEDY: I would vote in favor only because counsel rightly points out to not do so may well be precluding the opportunity fora hearing, because if we are unable today to decide anything, and thus elect perhaps to
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25 return the matter to the President, to hold a hearing then on 1222, which was the original conception which I think most of us had on March 6, or at least was discussed on March 6, to hold a hearing in those circumstances would be odd indeed, because it would be a competing procedure for all of th other activity that was going on elsewhere in the government, indeed it could even mean a scheduling problem for witnesses, who have trouble figuring out which proceeding to move to on which day.
They might even get troubled with testimony, they would have to present it twice.
CHAIRMAN HENDRIE:
Well, it is clear that we will move to no more ridiculous a set of procedures than the Commission can help.
The question of whether a hearing in the event 1060 were voted upon this afternoon and failed, it would appear to me that what I will recommend to the Commission:*~in fact if that is the case, is that the request for hearing, the Commission's deliberation on that simply be recessed to await developments on the 1060 license.
And there may inde~d come a time when it will be appropriate to take up the matter of hearing with regard to the ongoing licenses connected with the fuel supply to Tarapur.
So I think in the event of failure of 1060 this afternoon; the hearing question is simply postponed. In the 25 event of a successful vote on 1060, then I will ask the
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COMMISSIONER KENNEDY:
It would be hard for me to see, I would appreciate some suggestions as to the context for a hearing on subsequent licenses to be held by this Commission if indeed the Commission was unable to act on 1060, and action were taken in the other course, that is, by the President, and then by the Congress, and however it was decided, it would seem to me it would moot any further consideration in the hearing context by the Commission.
CHAIRMAN HENDRIE:
I don't agree at all.
It seems to me COMMISSIONER KENNEDY: I am just asking.
CHAIRMAN HENDRIE:
There is a ?PPlication which follows 1060, which is in the house, working its way through the mill.
In due time the Commission will address it.
Whateve decision the Commission will take on 1060 it appears to me that that in no way,shape, or form binds the Commission decision on 1222 and indeed on what must be a considerable succession of export license applications to come for the fuel to Tarapur station.
I can't tell what the conditions might be at the tim of consideration of 1222, what further information might be developed by the Executive Branch.from the receivers of the 24 fuel, what further considerations the staff might evolve and Ace-Federal Reporters, Inc.
25 so on.
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25 27 So I think you can not prejudge from whatever action might be taken on 1060 the subsequent actions on down the line.
But let me return and ask if you want to vote to have a hearing on 1060 before obviously the Commission decision.
COMMISSIONER KENNEDY: As I indicated -;,;,earlier, I don't think we can do the other.
If I did, I would say no.
But I don't think we can, and therefore I think we are foreclosing the possibility of a hearing by the action we take.
Thus I would say I would prefer to have the hearing before we act on 1060.
Although I have already indicated what I believe about 1060.
CHAIRMAN HENDRIE:
I count a yes vote there.
COMMISSIONER GILINSKY:.: I would not hold a hearing.
CHAIRMAN HENDRIE:
Peter?
COMMISSIONER BRADFORD:
[:.would not hold a hearing on 1060.
I think as the discussion goes on, it is clear the concerns at least that I have would not be usefully addressed further in a hearing.
CHAIRMAN HENDRIE: I think that is my own feeling with regard to t9e things I have had in mind with regard to this license, the sort of issues indeed that would be exercised in a hearing probably would not affect those.
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25 I will also vote against a hearing. And the issue is therefore decided.
We will not have a hearing on 1060.
28 I therefore invite the Commission's attention now to the substance of the matter, and, Vic, why don't I ask you --
COMMISSIONER GILINSKY:
Perhaps Commissioner Kennedy should speak first.
CHAIRMAN HENDRIE:
WOuld you like to start with regard to the merits of 1060?
COMMISSIONER KENNEDY:
I don't have any question as to the merits.
Therefore, I am interested in what the questions might be.
CHAIRMAN HENDRIE:
You have a brief positive statement there, Vice?
COMMISSIONER GILINSKY:
Well, let me tel 1 you I think that we have probably a unique situation here.
The la:w~s,rE:lquires a reasonable judgment on the part of the Commission that certain criteria are met.
And these provide for certain protective conditions of safeguards, no explosive use, and so on.
These have been outlined by the staff. And reprocessing control.
Now the wording of the criteria is forwardd-looking, it speaks of safeguards being applied, it says will be applied, no such material and so on will be used for nuclear explosions, no such material will be reprocessed
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25 without the United States' approval.
And similarily in the otehr cases.
Now as outlined by the staff, there are certain assertions covering these various points.
they cover all of them.
I am sure 29 The problem we have is that the agreement covering US-Indian cooperation is unique in that it covers a unique supply arrangement, and within the agreement and also where the Indian government has related its obligations under that agreement to the continued supply of U.S. fuel.
This in fact is mentioned in the agreement in which at least in one instance different views are specifically spelled out, those of the United States and those of the Indian government concerning their obligations.
Now under the law, as wa*s pointed out, Section 128 of the law, the continued supply of U.S. fuel beyond some point, an 18-month period of 24 months, depending on whether you are talking about approval or exports, is contingent in all cases upon all facilities in the country having nuclear materials be covered by these safeguards.
This is variously called comprehensive safegaurds or full scope safeguards.
And in the Indian case there has been a traditional reluctance to accept such safeguards.
And the conditions that have been set forth for such acceptance, without covering them in detail, I think ~an be reasonably described as formidable and at
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30 So I think there is at least a distinct possibility that such safeguards will in fact not be applied, and that therefore the law would then require a halt to approvals on exports.
Now that does not mean that that condition has to obtain now.
It is in fact clearly stated in the law that it applies at some later point.
However, becuase of the unique nature of the US-Indian agreement, and the interpretatio s that have been given to it, or at least the ambiguities that surround the matter, it is not clear to me at least how the Indian government would then regard its obligations under that agreement.
It then introduces uncertainties about whether in fact the various conditions set forth in the criteria will be satisfied.
And therefore, for myself, I find that I am unable to find that the statutory determinations are satisfied or can be made.
Now I think this is a situation which would not 22 apply in other cases.
We are dealing, I think, as is well-known, 23 24 Ace-Federal Reporters, Inc.
with a unique agreement, one of a kind.
But at any rate, for these reasons I think that considerable uncertainties surrou d 25 the question, and I believe that the correct thing to do in
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25 31 these circumstances and in fact the law provides for situations like this, would in fact be to submit the application to the President for him to decide as he sees it in the best interests of the United States.
CHAIRMAN HENDRIE:
That is a very clear statement, it seems to me.
While I am turning in this direction, let me ask Peter if he would like to comment.
COMMISSIONER BRADFORD:
I would have very little to add to what* Commissioner Gilinsky has said. I do agree with it.
CHAIRMAN HENDRIE:
Commissioner Kennedy.
COMMISSIONER KENNEDY:
That was very little to add, I would say.
It was beautifully put.
COMMISSIONER BRADFORD:
My agreement was the addition.
COMMISSIONER KENNEDY:
Let me say a couple of things.
First, I reviewed the matter very carefully, and looked very carefully at all of the criteria, and at the evidence presented, the argumentation raised by the Executive Branch and then by the sfaff, and am fully persuaded that issuance of the license is justified, and certainly would not be inimical to the common defense and security, the grounds on which it would be denied.
Secondly, it seems to me the law was very carefully
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25 32 phrased, and there is a very long history, amply rehersed for us by counsel in the very recent memorandum.
The law was not capriciously drawn, it was laid out to provide for precisely the kind of diplomatic effort which is required and will be required to encourage others to follow the lead which the United States has set.
It was not intended that a cut-off be made, nor was it intended that the Commission accomplish a cut-off.
It was intended that the Commission be given guidance, it seems to me it was, and that guidance has been met.
I see no reason not to act on the license.
As to the question of whether the President should look further at the matter, of course the law authorizes that.
After all, we were in no small measure on this Commission responsible for that part of the law.
We testified strongly in support of it, believing that it was incorrect that a regulatory commission, independent regulatory commission, be given an unfettered ability to influence the foreign policy and the commerce of the United States.
But I see no reason to believe that the law intende that each time the Commission found a tough one,.that it toss it back to the lap of the President. For, after all, who was it who sen*t the recommendations forward to the Commission?
The Executive Branch of Government, not an individual, not a single department, the Executive Branch of the government, in
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25 33 personification only of the Secretary of State, a6ting for and on behalf of the Executive Branch of the government, al]L:i.thqf.?e agencies and activities responsible directly to the President of the United States.
Hardly would it seem to me could we expect to receive a recommendation from the Secretary of State which would run counter to that of his President.
I don't believe it and I think I have some reason from my own past experience to suggest there is the least possible possibility of such a thing occurring.
One last point.
It seems to me that~bhe~law did not intend to convey to this Commission in any way the opportunity or obligation to act prospectively as to our
£oreign policy.
That is the responsibility of the President, and of the Secretary of State, constitutionally it is the responsibility of the President, not statutorily.
And it seems to me for us to say what we believe will be the
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outcome of negotiations yet to occur is to p:i;-esume gr_e_a:tJ.:--1:
upon our responsibilities and the limits of those responsibilit es.
And for us to act because we can not conceive the result to be as we might like it is not only incorrect, it may even be illegal.
Thank you.
CHAIRMAN HENDRIE:
I guess I should complete the round by making it clear that for myself I £ind the analysis of the appoication with regard to the criteria conditions
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25 forwarded to us by the Executive Branch and gone over by our own staff, to be satisfactory.
I am able for myself to make a positive finding on the matter.
I do recognize the concerns that Commissioner gilinsky has very ably summarized.
34 It does seem to me, however, that in a sense going in the direction that he feels this requires him to go begins to guarantee the-outcome about which>he is concerned. And I don't find it for myself necessary to go that far, and prefer, rather, to deal with the matter on the basis of assurances and analyses offered by ~r own staff and the State Department.
Now let me summarize up and down the table.
If I infer incorrectly as to your votes, you can correct me.
But it seems rather clear-cut.
With regard to your ability to make a positive finding on the 1060 application, I assume that Commissioner Kennedy votes yes.
COMMISSIONER KENNEDY:
Yes.
CHAIRMAN HENDRIE:
Commissioner Gilinsky votes no.
And Commissioner Bradford votes no.
I am voting yes.
If I infer your votes correctly, okay.
The Comm-ission then divides 2 to 2, and the application fails here.
Now let me turn to the next matter that --
COMMISSIONER BRADFORD:
Before we get entirely away
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....:..r.om ___ t __ J..--s-,---I--wo1n1..,ef::..I __,rat er tan eave certain misun er-i standings here, I might speak to a couple of the points Commissioner Kennedy made?
CHAIRMAN HENDRIE:
Please do.
I didn't mean to cut off discussion at this point.
COMMISSIONER BRADFORD:
There is at least the distant hope I might convince him.
But in any case, I will clear the air a bit.
COMMISSIONER KENNEDY:
Within 18 months?
COMMISSIONER BRADFORD:
Clear the air in 18 mon:ths or convince you in 18 months?
COMMISSIONER KENNEDY:
Convince me within 18 months.
Because you only have 18 months or there is a cut-off.
But do you want to cut it off now or in 18 months?
CHAIRMAN HENDRIE:
Let.him try to convince you.
COMMISSIONER KENNEDY:
Not unelss he issues the license.
CHAIRMAN HENDRIE:
If he does, it doesn't improve the negative position.
COMMISSIONER BRADFORD:
With regard to a few of the specific points, I think speaking for myself at least, it is important to be clear that *ram not necessar;i:ly saying that it is inimicable with the common defense and security that the export be sent.
We are evaluatipg it in terms of the certain criteria.
The law requires that we certify with
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9 10 11 12 13 36 regard to those crtieria and it is that certification that I have difficulty with.
The President, of course, has a rather different set of calculations that he may want to bring to bear on the matter, and I wouldn't want my own position to be taken as prejudicing or in any way intending to prejudice *the environment +/-:fu which he makes those decisions.
As to whether or not the position that I am taking requires predicting the outcome of negotiations,. off in the future, I don't feel that it does.
I feel that it is sufficient that we don't know and have substantial reason to be uncertain in this particular case about the outcome of these negotiations.
14 15 16 One doesn't have to predict with certainty that they will fail in order to conclude that the uncertainty over their success in the unique circumstances of this particular 17 requirement contract type of agreement for cooperation calls 18 into question the meeting of the criteria with regard to 19 this export.
20 And, again, it is that uniqueness with regard 21 to this particular agreement for cooperation that exists 22 in no other agreement for cooperation that we have that 23 differentiates this case from what you might otherwise character 24 ize as a policy of throwing back the tough ones.
Ace-Federal Reporters, Inc.
25 I mean I have no intention of throwing back the
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25 37 tough ones, and wouldn't want to let that comment pass unremarked.
COMMISSIONER KENNEDY:
We shall see.
What thres-hold would you use as to whther it is likely to be futile or thus incumbent upon us not to act}_. or above which it may have chances enough of success to warrant our going ahead?
Where is the threshold?
Somewhere above zero, but how far?
If there is one chance-in two of success, is that success not worth pursuing?
If there is one chance in three of success?
What we are looking for here are the things the law sought, and the President seeks, a non-prolifer-ation regime accepted broadly.
What is the threshold?
COMMISSIONER BRADFORD:
Without attempting to defin with precision a threshold that I am satisfied that we aren't at here, I will say as a general matter! conceive of the law --
COMMISSIONER KENNEDY:
Where are we here?
COMMISSIONER BRADFORD: That I think Commissioner Gilinsky stated well enough,cfor my purposes at least.
But the diff icul tyc;one:. *has in dealing with one out of three, one out of two, one out of four, in the context of this legislation, is that there are these criteria, and the Congress didn't intend us to assign, as far as I am concerned, a one out of two, one out of three, one out of four type probability to those criteria; it intended us to
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9 10 11 12 13 14 15 16 38 assure that they at least would be met.
In a circumstance in which the Commission is unable to certify that they are met, it then provided if the President, on the basis of his assessment, into which fluctuating probabilities have a much, I think, more easily accommodated scope, if in his assessment those probabilities tilted in the other way, he, of course, could make the determination that the.export should go.
CHAIRMAN HENDRIE:
Vic, did you want to comment?
COMMISSIONER GILINSKY:
I think it is worth underlining the point that there are two ways in which an export can fail.
The Commission can decide in fact the export is inimical to the common defense and security, or the Commission can decide that it can not find that the criteria are met. And they are rather different cases.
COMMISSIONER KENNEDY:
In either case they are a 17 denial.
18 19 20 21 22 23 24 COMMISSIONER GILINSKY:
The President is not similarily constrained.
His judgment can be based on broader grounds.
So a decision here is not one that points to an Executive decision of one kind or another.
It simply is a statement that the Commission has failed to find these statutory criteria have been met.
COMMISSIONER KENNEDY:
Two members of the Commissio Ace-Federal Reporters, Inc.
25 have failed.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 39 CHAIRMAN HENDRIE:
I think it is clear that the Commission would require a three vote majority to approve the issuance of the license and direct the staff to issue it.
And we have not -- the house is divided 2-2, and the applicatio therefore fails before this Commission.
Now I do want to move forward.
It seems to me that the matter should be returned to the Executive Branch forthwith, informing them that the Commission divides 2-2 with regard to making a positive finding, and the matter is thereby in their hands.
Now I have an interesting question raised by the counsel's office, and that is whether or not that 1nE6rming of the Executive Branch occurs immediately, and automatically upon failure of the issue at this table, or whether a positive vote of a majority, which means 3 votes, is indeed required to send it over and on balance the counsel feels that the law may indeed incline towards the latter.
I will give them a chance if they would like to amplify on that opinion.
Let me say that I find that peculiar.
The Commission is now four members, 2-2 votes are not unusual.
Furhter Commissions with five members may indeed have 4 voting members on issues of this kind. So I think it is not Ace-Federal Reporters, Inc. necessarily a totally unique situation.
25 It apepars to me with the Commission divided
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25 40 2-2 on the license, the merits of the license itself, it is conceivable at some future occasion it could also divide 2-2 on whether to send the matter forward and thereby the thing falls into a 120-day limbo until the provision of the law that says~after 120 days it goes back no matter what we have done, I guess, comes into effect.
I would find it hard to believe that the drafters of thelegislation had such a peculiar side pocket built in, and I would recommend to the Commission that it adopt the view that upon failure of a license here, it go automatically to the Executive Branch.
However, Jim, would you ~re to support the opposite opinion?
MR. KELLEY:
Well, mr. Chairman, you stated the contrary argument, I think, quite well.
I believe the statute is ambiguous in this regard and can be read either way.
Given ambiguity, I believe I would prefer to read th$,::-, statute to require a majority vote.
It seems to me in a variety of circumstances it might be, under this hypothetical, even with a four-member Commission, on a given day you might split 2-2, but you may feel very differentl about whether it is time to send it down the street.
One Commissioner may feel that another Cowmissioner is wavering, and given another crack, he can talk him into it.
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9 10 11 12 13 14 15 16 17 41 Under the automatic referral reading, indeed the wa we handle export licenses around here, the Secretary will pick up four pieces of paper, two checks in one box and two checks in the other, and send it to the President.
This sort of automatic referra-L:.approach is not the way I would read it.
I would read the statute in such a way as to put pressure on the Commission to decide on the merits, if possible.
I don't think the statute contemplates ready quick referral.
I think it should be the utmost effort devoted to deciding on the merits if you can.
But I also think that is a rule of reason and what will really happen is what is happening here this afternoon. Wh~n~you split 2-2 on the merits, you are likely to get 3-1 or 4-0 on whether to send it over.
So that is where I come out. But it is a new statute, with a lot of legal issues in it. I sent you and the Commissioners last week a one-paragraph conclusiory memorandum 18 at eleven o'clock in the morning, because this meeting 19 was scheduled for one o'clock in the afternoon. I thought it 20 would be wise to tell you the bottom line then rather than at 21 one o'clock.
22 I think it would be wise for the record to not sign 23 off on this legal issue this afternoon.
If you have 3 votes, 24 that refers it, and we can take a further look at the issue.
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25 CHAIRMAN HENDRIE: I think it would be useful to
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25 42 sort it out, and indeed we might even discuss the matter with some of the sponsors of the legislation and see what they think about it.
They might want to cure the situation with a word or two down the line.
But indeed I think the majority of us, I think probably all of us, have agreed that in the event of a 2-2 spli, we do believe it should go forward promptly to the Executive Branch.
I therefore ask for a vote of the Commission that that be done.
COMMISSIONER KENNEDY:
I would caviat my vote to be certain of the form in which it will go forward.
I would like my views explicitly addressed.
CHAIRMAN HENDRIE:
I would COMMISSIONER KENNEDY:
To the Executive Branch so it would know how I would vote, (a) on the question of the hearing, and (b) on the question of the license. And I will be submii:tting for the record a more detailed explanation 6f my views.
CHAIRMAN HENDRIE:
Just so. I think the notice to go £orward to the Executive Branch should simply say this is to inform you that the Commission has divided 2-2 on the matter of the 1060 application, and is therefore unable to make a positive finding under the Non-proliferation Act of 1978.
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25 43 COMMISSIONER KENNEDY:
Mr. Chairman, that wasn't th thrust of my comment.
CHAIRMAN HENDRIE:
No, no.
But to that rather simple message I would expect the views, the individual views of the Commissioners to be attached.
COMMISSIONER KENNEDY:
Then it. will be delayed somewhat in getting to the Executive Branch. I would hope the Executive Branch would be notified no later than tomorrow.
My purpose will be served by simply stating that the Commission has voted 2 to 2, X and Y voting yes, A and B voting no, and their views will be submitted subsequently for you; we are simply advising you now so you can take whatever steps you wish to take.
COMMSISSIONER GILINSKY:
Having not decided the issue, I don't think we ought to wait to present our views totthe Executive Branch.
MR. STROIBER:
I can read the statutory language which bears on this.
"If the Commission does not issue the proposed license on a timely basis, because it is unable to make the statutory determinations required under this Act, the Commission shall -publicly issue its decision to that effect and shall submit the license application to the Presiden in the following laDguage.
The Commission's decision shall include an explanation of the basis for the decision" that would be the 2-2 split --"and any dissenting or separate view;s,."
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25 44 So it appears to me from reading the statute, separate or dissenting views have to accompany the decision.
I think the:.*rationale behind that is so the President,cin making his judgement, would have the rationale of the dissenting or separate views before him at that time.
CHAIRMAN HENDRIE:
I trust there will be a considerable effort on the part of the individual Commissioners to get their remarks in shape so they can be sent COMMISSIONER GILINSKY:
I don't think our remarks conerning our initial decision should have to await the time when we submit the views to the Executive Branch.
They ar two distinct decisions.
CHAIRMAN HENDRIE:
Somehow I am not following you, Vic.
COMMISSIONER GILINSKY:
The decision on the license itself, our views on that. But the decision on submitting it to the Executive Branch.
MR. STROBER:
It seems to me a fair reading of the statute would permit a submission of the license application seaprately from the submission of the decision which includes the reasoning.
COMMISSIONER KENNEDY:
That was my suggestion.
MR. STROIBER:
However, when you submit the decision,* that will have to have appended to it any spearate or dissenting views.
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9 10 11 12 13 14 15 16 17 18 45 COMMISSIONER BRADFORD:
What is the first of those two?
MR. STROIBER:
That would be, I would thihk, something in the nature of a cover letter, with the Chairman saying we hereby submit this license to you, Mr. President.
COMMISSIONER BRADFORD:
That could be immediately?
MR. STROIBER:
I would think so.
CHAIRMAN;iHENDRIE:
I think it necessarily has to say why it is corning over.
MR. KELLEY:
But the sending of separate views are views on the merits of the license, not that we split 2-2.
COMMISSIONER GILINSKY: I don't see why those should await -- I mean whenever a Commissioner has them available.
I guess I would not like towait to*present my views on this matter.
CHAIRMAN HENDRIE:
In fact, I would hope they would be ready very soon, and perhaps tomorrow we could get a 19 package off.
Is that practical for you?
20 COMMISSIONER KENNEDY:
Mr. Chairman, since I have 21 been corning to meetings regularly and not been absenting 22 myself from them, I have not had quite as much time to work 23 on mine as others have.
Therefore I would take such time as 24 I need and I will be absenting myself from meetings tomorrow Ace-Federal Reporters, Inc.
25 in that case.
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25 46 As I indicated sometime ago to the Acting Chairman, when the matter arose, if there were to be dissenting views to be issued, I assume I, or whoever it was, indeed any one of us, would be accorded the same courtesy as he has in the past when he has done so.
I assume that will be the case.
Indeed I will insist upon that being the case for my colleagues in the future, I would hope they would insist on it being the case for me.
ago.
weeks ago.
COMMISSIONER GILINSKY:
That was also several weeks COMMISSIONER KENNEDY:
No, it wasn't quite several Indeed it will be recalled that meeting after meeting was postponed, although on one occasion I even came into the meeting room thinking it was occurring.
I will prepare my views as quickly as it is possibl for me to prepare them, Mr. Chairman.
CHAIRMAN HENDRIE: I think that is a fair propositio 1 **
COMMISSIONER KENNEDY:
And I will expect then whatever package is being forwarded will await their preparation.
MR. STROIBER:
The General Counsel's office will circulate a draft decision this afternoon.
CHAIRMAN HENDRIE:
Let! s see.
You;:are about to leave for a week, aren't you?
COMMISSIONER KENNEDY:
That is correct, a fact
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25 47 which I made note of two weeks ago when a meeting was :::~ 0 \\ -:_ -,
cancelled and a week ago when a meeting was cancelled and earlier this week when a meeting was cancelled, and I have attended each meeting of the :~:oommission that has been held since.
MR. KELLEY:
Mr. Chairman, may I make a suggestion COMMISSIONER KENNEDY: And, I might add, not found myself unable to participate in the meeting.
MR. KELLEY:
You do have a transcript of the public meeting, which everyone is given.
One possibility might be to send a short letter saying we split 2-2, trans-cript attached, explanation of views later.
COMMISSIONER KENNEDY:
I think that is a splendid idea.
Additional views can be submitted later.
COMMISSIONER GILINSKY:
Isn't this a matter with interest.
I think that there could~be mis-understanding over'the reasons for the Commission vote.
And I think it would be useful, I at least would like to present wirtten material that Commissioner Bradford and I prepared and make that available, because I think it is important to the understanding of the decision.
COMMISSIONER KENNEDY:
I share that view one hundre percent. r=thinkkmy:~town views are important enough to have reduced them to writing, they need some work, and since I
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25 48 have not taken the time away from Commission meetings to do that work, I believe I ought to have tnat time.
I will be prepared to do it, and I will not be at the Commission meetings tomorrow, but I will make known the reason.
CHAIRMAN HENDRIE: I urge the speed:j:est possible preparation of y9ur additional remarks, so we can --
COMMISSIONER KENNEDY:
Mr. Chairman, I always prepa e my remarks and indeed as the record will clearly indicate, always act upon these matters, including this one, some weeks before this discussion.
So I appreciate your concern; your admonition is unnecessary.
CHAIRMAN HENDRIE:
Vic, I think if you have some material in hand, I think it could very well be attached to the transcript, so.it is immediately available.
COMMISSIONER GILINSKY:
Of course I would like to give you and Commissioner Kennedy time to see it.
CHAIRMAN HENDRIE:
Circulate it to us. But that would provide a mechanism for making it immediately available.
an outrage.
COMMISSIONER KENNEDY:
Mr. Chairman, I consider thi CHAIRMAN HENDRIE: I am sorry --
COMMISSIONER KENNEDY:
Let the record show that.
CHAIRMAN HENDRIE:
I am sorry, I don't.
If
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25 49 Commissioners have prepared remarks and would like to make them available, there is,*nothing to prevent a Commissioner from putting a stack of papers in the back of the room if he so chooses and make in effect a public document.
COMMISSIONER KENNEDY:
I understand that, Mr.
Chairman.
CHAIRMAN HENDRIE:
If the Commissioner would like to attach a copy of his remarks to the transcript that is fine.
COMMISSIONER KENNEDY:
We havez~now revised the way in which we proceed in this Commission and deal with each other, I understand that, and that is the way it will be henceforth.
- CHAIRMAN HENDRIE: I think that is the way we have been operating for sometime.
COMMISSIONER KENNEDY:
No, it is not, Mr.
Chairman, not at all in the past.
CHAIRMAN HENDRIE:
Well, I do think that provides a mechanism to make those things a~ailable.
Obviously it is available to all of us.
Okay.
Thank you very much for coming.
The Commission gets a three-minute rest and then we have an affir-mation item which is very important we do from the standpoint of litigation.
And then there is a classified meeting which will be a closed meeting of the Commission, a
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25 continuation of the one we had this morning.
Thahk you.
(Thereupon, at 2:30 p.m. discussion of the above matter was Goncluded.)
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