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 Pages 1-50
Telephone :
( 202 ) 3-47-3700
ACE -FEDERAL REPORTERS, INC.
Offici.a.l Reporters
444 North Capitol Street Washington, Q_(_ 20001
NATlONWICE COVERAGc
- DAILY DISCLAIMER
Nuclear Regulatory Commission held on April 20, 19-78 in the This is an unofficial transcript of a meeting of the United States 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.
As provided by 10 CFR 9.103, it The transcript is intended solely for general informational purposes. 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.
(_
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1 CR 7168 UNITED STATES OF AMERICA Barther
- DB l 2 NUCLEAR REGULATORY COMMISSION
3 Meeting on
- 4 NRDC Request for Hearing in Tarrapur Export License 5
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9 10 Commission Meeting Room 1717 H Street Northwest 11 Washington, D.C.
12 April 20, 1978, 1:00 p.m.
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14 PRESENT: Commissioners Hendrie, Kennedy, Gilinsky and Bradford.
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- 23 24 Ace-Federal Reporters, Inc.
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7168.01. I 2 bw PROCEEDINGS
2 CHAIRMAN HENDRIE:.If we could c.ome to order.
3 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 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).
- January 17, 1977 Application XSNM-1060 forwarded for Executive Branch review.
February l, 1977 Memorandum to the Commission fon1arding Applica tion XSNM-1060 for information.
- February l O, 1977 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.
March 3, 1977 Commission briefing on Tarapur by State and ERDA.
March 21, 1977 *commission meeting on NRDC motion to consolidate proceedirigs and other aspects of nuclear supply to India.
Apri l 11, l 9 77 Commission briefing on US-India nuclear cooperation and supply issues.
June 21, 1977 Commission discussion of Executive Branch views on Application XSNM-845.
June 22, 1977 Commission memorandum and order on consolidation of proceedings on Applications XSNM-845 and 1060.
June 24, 1977 Commission discussion of XSNM-845 and nuclear supply issues.
June 28, 1977 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.
of 12,261 kilograms of low-enriched uranium to Export License XSNM-845 i~sued authorizing export India for TAPS.
June 30, l. 977 Commission discussion of XSNM-845, (Court action stayed issuance of XSNM-845; the court subsequently lifted its stay.)
September 1977 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."
September October 1977 DOE expert visit to Bombay and Tarapur on spent fuel disposition matter..
December 1977 DOE/GE expert visit to India on spent fuel dispo sition matter.
January 1978 President Carter visit to India. (US Congressional delegation and UK Prime Minister Callaghan also visit India during this period.)
January 26, 1978 Executive Branch analysis and favorable recommenda tion of January 25 received by NRC. (Includes the and December 1977 on applicability of agreement fot Indian Government's assurance letters of January cooperation and authorization of TAPS to receive the material.)
February 3, 1978 IP forwards advance copy of Executive Branch views for the Commission's information.
February 14, 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).
February 21, 1978 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).
February 22, 1978 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-which will not delay action on the former. 1060 and 1222, it should be done in a manner
SECY-78-105 forwarded to the Commission with staff 1 s conclusions and recommendation that XSNM-1060 be issued.
February 23, 1978 Commission* 1060. Resulted in consolidation of the promeeting on NRDC motions and XSNM-ceedings on 1060 and 1222.
March 6, 1978 Executive Branch forwards supplementa_ry rnateri~l on nuclear supply to India, March 10' 1978 President Carter signs the Nuclear Nonproliferation Act of 1978.
March 13, l 978 SECY 78-105A forwards March 6 supplementary Execu tive Branch material to the Commission.
March 16, 1978 Commission discussion of NRDC motions and other aspects of XSNM-1060,
- March 23, 1978 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 Commission requests Executive Branch analysis of new requirements under the Nonprol~feration Act.
March 30, 1978 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 mendation that XSNM-1060 be issued. Nonprol if era ti on Act. Staff reiterates reco111-
April 6, 1978 OELD and IP comments on proposed export under XSNM-1060 and fulfillment of the requirements of the Nonproliferation Act.
7168.01.2 3 bw CHAIRMAN.HENDRIE: Please do.
2 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 Two previous licenses have been issued in the
12 J76-J77 period. License 805 and 845.
13 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 the license.
21 During this period there were -- and subsequently
22 there have been discussions between the Commission and the
23 Executive Branch regarding fuel supply to India and 24 nonproliferation developments with regard to that country.
25 The Nonproliferation Act was signed March 10th of 7168.01.3 4 bw entered into force at that time. And it prescribes certain 2 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 Commission consolidate the proceedings on this license with
24 another license, XSNM 1222, which was applied for in November
25 of last year and is still under review by the Executive Branch.
7168.01.4 5 bw The Commission met in February -- February 23
2 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 of the criteria or their equivalents were considered to have
12 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
- 13 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 also comment even more briefly on the other aspects of the
23 export as they related to other provisions of the bill.
24 As the Chairman h~s said, these have been set forth in much
25 detail in our written submissions to the Commission.
___________________________________________________ __J 7168.01.5 6 bw The ~irst criteria, the Act essentially sets
2 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 inimical, than it would have to be attributable to some.other
24 reason and not the fact that this is under an insert 66 or 25 a non-NPT type safeguards agreement.
7168.0l.6 7 bw To skip slightly, as you know, Section 128 of 2 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 MR. GUHIN: 24 months after enactment of the
14 Act.
15 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 exported and subject to the a ppl i cable agr_eement for 24 c.ooperation and no special nuclear material produced through 25 the use of such materials will be used for any nuclear 7168.01. 7 8 bw the use of such materials will.be used for any nuclear
2 explosive device or for research on or deNelopment of any
3 nuclear explosive device.
4 As has been noted previously, this mat.tar is
5 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
.11.research or development on atomic weapons.
12 However, there are suppl a.mental under standings in
L3 almost of the cases in reviewing this criteria. In many 14 cases, for example, a country which is a party to the NPt
15 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 made available for, used in, or produced through the use 24 of the Tarapur reactor, will be used exclusively for the
25 purposes of that reactor, and for no other purpose, unless 7168.01.8 9 bw the two parties agree.
2 As the Executive Branch has stated in its
- 3 submission, the U.S. Government would obviouslyu not agree
4 to the use of.U.S.-supplied material in any nuclear
5 explosive device or for any research or deMelopment of
6 any nuclear explosive device.
7 In contrast to Criterion 1, however, where we
8 have concluded that is clearly met, I think the Staff would
9 say on Criterion 2, as has.the Executi :ve Branch, that
10 the equivalent of the criteria mandated by law is clearly
-11 met.
12 The third criterion refers to the application 13 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 ag~eed standards under the IAEA INF-CIRC 225.
24 I added to that point in our Apri1 6 memorandum,
25 of course, that the NRC Staff has also.visited Tarapur for 7168.01.9 10 bw the very purpose of looking at the facility and the physical 2 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 to be exported and no special nuclear material produced
13 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 proposed to be exported and n.o special nuclear material 25 produted through the use of such material will be reproduced 7168.01.10.l I bw and no irradiated fuel elements containing such material
2 removed from a reactor shall be altered in form or content,
- 3 unless the prior approval f the U.S. is obtained for such 4 reprocessing or alteration.
5 The Agr.eemen t for Cooperation addresses the 6 reprocessing -- Article 2-E is the specific provision --
7 and states that it is agreed that when any special nuclear
8 material utilized in the Tarapur Atomic Station requires
9 reprocessing and recourse is not taken by the Government of 10 India to the provisions of Article 6-C of this agreement, 11 such reprocessing may be performed in Indian facilities upon 12 a joint determination o+/- the parties that the provisions of 13 the Safeguards Article may be effectively applied, or in 14 such other facilities as may be mutually agreed.
15 As noted in our submissions and in the Executive 16 Branch, the bottom line to this is tha~ there can be no 17 joint determination without U. S. agr.eement; however, since 18 and particularly with respect to the mutual agreement referred 19 to on facilities outside of India.
20 In view of the wording here though and the 21 reference to the safeguards, both the Executive Branch and
22 the Staff have said that the equivalent of this criterion is 23 met, and we think that this is provided for clearly in.the
- 24 Agreement for Cooperation.
25 I~d like to just mention two aspects. As we know, 7168.01 *. 11 12 bw that the recently enacted Nuclear Nonproliferation Act also 2 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 7168.01.12 13 bw those that it had in 1974.
2 I believe that this further reinforces at lea~t
- 3 the evidence with respect to this criterion.
4 That is, I hope, a brief enough summary.
5 CHAIRMAN HEN OR IE-: Well, brief enough, not too 6 brief.
7 Are there ques~ions at this point?
8 COMMISSIONER KENNEDY: Not at this point.
9 COMMISSIONER BRADFORD: Not yet.
10 CHAIRMAN HENDRIE: I will ask the -- Carl,
J 1 are you going _to speak for the -General Counsel-'s Office 12 here, ta just summarize for us what I will £all the 13 Commission~s litigation position in this matter.
- 14 Mli. STOIBER: All right. Mr. Chairman, as you
15 know, the matter that we~re confronted with today is the 16 subject of a lawsuit brought against the Commission by 17 several intervenor or public interest groups in 1976, 18 related to the nature of the hearing which the Commission 19 provides in 1976 on these issues.
20 The case which basically involved whether or not 21 the intervenors were entitled, as a matter of right under 22 the Atomic Energy Act, _to participate in _the proceedings, 23 and whether or now we are compelled as a matter of law to
- 24 grant them an adjudicatory or trial type hearing. These 25 issues were fully briefed before the U.S. Court of Appeals 71 68. 01
- 13 14 bw for the District of Columbia, as long ago as December of I 2 1976, and we still await the decision of the Court in that I
- 3 matter. I
4 When the Nuclear Nonproliferation Act was 5 passed and signed by the President in March of this year, 6 March IO, our off ice prepared a supplemental memorandum of 7 law which we submitted to the Court of Appeals, stating
8 our view of the effect of the new statute on the lawsuit,
9 and our contention, basically, was that the lawsuit was, 10 in effect, decided by the Congress by virtue of its decision
JI that the Commission would have full discretion in determining 12 what kinds of hearings intervenors would be afforded in NRC
IJ export licensing proceedings.
- 14 So, on March 13, we did so advise the Court. In
15 a response the intervenors requested an extended briefing 16 schedule.and some argument.
17 We responded by saying we did not feel that was
18 necessary, that all of the issues had been briefed.
19 So, to reach really the conclusion of what 20 effect the pending litigation would have on the op.tions the 21 Commission now has for action, I would have to say that we 22 believe the Commission can go forward with action on 23 License XSNM-1060 without affecting substantially or in any 24 way the 1 it iga tion. po s.ture in the Cour.t of Appeals.
25 As you know, there is another license application 7168. 0 I
- I 4 15 bw the Government of India for fuel to the Tarapur facility,
2 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 to maintain the procedural posture as a single proceeding,
24 rather than two separate proceedings.
25 We forwarded also on February 21 and March 30,
7168.01.15 16 bw memoranda discussing what options the Commission had in
2 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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COMMISSIONER KENNEDY: Excuse me. I am correct that CR 7168 2 Tp 2 that request for hearing still lies before the Commission?
DB 1 3 MR. STROIBER: Yes, it does. Heretofore, before 4 acting on a license, the Commission has felt it desirable to 5 dispose of hearing request claims in advance of moving to the
6 license.
7 Of the four alternatives, three would of necessity
8 be connected to any action you might take on the license.
9 The first alternative would be to decide not to 10 take action upon the license until you held a hearing.
11 Under the new statute, you can determine that it 12 would be in the public interest and would be of assistance 13 to you in reaching your decision to have such a hearing
14 and therefore if you went forward with that kind of an approach
15 the time limits provided in the bill would all be in effect
16 tolled,. and the time limits would only resume again after 17 the Commission had completed its hearing.
18 COMMISSIONER KENNEDY: Excuse me. I want to be 19 sure I understand this procedurally.
20 Given the fact that 1060 and 1222 are now con-21 solidated, does that all apply if the action were taken on 1060 22 with the assumption that a hearing would be held on 1222?
23 I think that is procedurally possible.
24 Ace-Federal Reporters, Inc. MR. STROIBER: Yes.
25 COMMISSIONER KENNEDY: If one did, what would the 18
- DB 2 time limit effects be then?
2 MR. STROIBER: Well, if you took action of course
3 on 1060, at this point, and decided to hold a hearing on
4 1222, then the time limits would then pegin to run. It
5 would only be tolled as with XSNM-1222.
6 As I am going to point out here, there are now
7 three options for the Commission under the new statute. This
8 is the first meeting we have had really to discuss an export
9 license under the new statute, and heretofore the Commission
10 could either deny or grant a license and its decision was
11 basically unencumbered by any other involvement of other
12 agencies.
13 Now, under the current statute, if the Commission
14 decides to either deny a license or that it can not decide
15 upon the license, the statute prov~des that that license will
16 be referred to the President for his judgment.
17 In either of those cases, either in the case
18 of a denial or a referral, it seems to me that the hearing
19 issue becomes moot, because at that stage the Commission no
20 longer has anything before it at least with respect to XSNM-106
21 to hold a hearing on.
22 It could, of course, hold a hearing on XSNM-1222,
23 but as far as XSNM 1060 is concerned, a hearing need not
24 be granted.
Ace-Federal Reporters, Inc.
25 COMMISSIONER KENNEDY: That would be an odd
procedure, wouldn't it?
2 COMMISSIONER KENNEDY: To return 1060 to the
3 President, because,,* we couldn't decide and elect then
4 to hold a hearing on 1222.
5 MR. STROIBER: Well, it is certainly legally possib e
6 but it would be rather odd, given the fact that there would
7 probably be a number of activities going on in the Government
8 at that stage, and since the Congress is involved, one would
9 anticipate they would be looking at it also, and to have two
10 parallel proceedings might be confusing.
11 The final option, of couree, is to grant the
12 license and as I have explained before, if you grant the
13 license, we believe that the hearing issue then attaches to
14 license XSNM 1222, and that you could take that step and
15 still preserve the rights of the parties before the court.
16 So those are the four options here. Basically the
17 hearing issue should not be driving your consideration at this
18 point.
19 CHAIRMAN HENDRIE: Thank you. Questions?
20 COMMISSIONER KENNEDY: Not just now.
21 CHAIRMAN HENDRIE: All right. Let's then turn to
22 the 1060 issue before the house. Do you have any druthers on
23 which way I go first?
24 COMMISSIONER KENNEDY: Well, to go back to something Ace-Federal Reporters, Inc.
25 Carl said, are we going to talk about the issuance of a
., 20
DB4 license or whether a hearing should be held?
2 CHAIRMAN HENDRIE: I want first to determine whethe
3 the Commission is able or unable to make the findings
4 required under the Act with regard to the issuance of the
5 1060 license.
6 What we do about a hearing depends on how that
7 decision goes.
8 COMMISSIONER KENNEDY: No, not necessarily. If I
9 understand the procedure, our decision as to whther we can
10 come to a conclusion, or reach one yes or no, would follow
11 a hearing, if there was to be a hearing. We wouldn't reach
12 that conclusion before we had a haring. The hearing would be
13 presumably to illucidate the issues and help us.
14 I think that is exactly what the law says.
15 CHAIRMAN HENDRIE: If you want to deal with the
16 question of whether the Commission would like to hold a
17 hearing before it deals with the 1060 license, we can indeed
18 consider that for a moment.
19 Let me recommend to you that we have all studied
20 this matter with very considerable care and it is my
21 impression from discussions with each of you that in fact
22 it would not be our intention to fu~ther prolong the decision
23 on the 1060 matter in order to accommodate a hearing.
24 COMMISSIONER KENNEDY: No one has asked me that Ace-Federal Reporters, Inc.
25 question and I would like to be able to register my views on
21 DB 5 it, which is I would vote for a hearing, if that was
2 offered.
3 CHAIRMAN HENDRIE: Before the 1060?
4 COMMISSIONER KENNEDY: Yes. Indeed exactly as I 5 indicated on March 6, I believe it was, at the time that
6 matter was discussed last by the Commission, where I think
7 those who at the time thought a hearing might be a good idea,
8 wondered what others might think and It said I would certainly
9 make it unanimous that we should have a hearing, if others
10 felt we should have one.
11 I have not changed my view in this regard.
12 CHAIRMAN HENDRIE: Duly noted. Let me say my own
13 view is that this matter has now gong sufficiently long so
- 14 that to further prolong it for the some months which a
15 hearing would inevitably take --
16 COMMISSIONER KENNEDY: How long would it take?
17 Thirty ~ays?
18 MR. STROIBER: We forwarded in the February 21
19 memorandum, I believe, an estimate of the time it would take an
20 I think the estimate was on the order of a minimum of 30
21 days and perhaps longer, depending on the extent to which
22 you wanted to have written exchanges and an oral proceeding.
23 I think 30 days is a rather optimistic estimate 24 of how long it would take to conduct a hearing that was Ace-Federal Reporters, Inc.
25 meaningful at all.
22
DB6 CHAIRMAN HENDRIE: I really think by the time the 2 Commission were able to come to a meeting after the hearing,
3 a deliberate opinion, we are talking more about 60 days.
4 VOMMISSIONER KENNEDY: Suppose the Commission 5
today, given its understanding of the fact available to it 6
today, and not having availed itself of the views which 7
might be presented to it in a hearing, was unable to reach 8
a conclusion'j How long then wou-J:,d,.*.it be, in the most optimisti 9
view, before a license could issue? If it were to issue at 10 all.
11 MR. STROIBER:.::You mean if this were then referred 12 to the President?
13 COMMISSIONER KENNEDY: Yes, that being one of the 14 options.
15 MR. STROIBER: This depends, of course, on how 16 quickly the Commissioners were able to state the reasons 17 why they had taken the view that they had.
18 Under the statute, when the Commission decides to 19 refer a matter to the President, in new section 128(1) (b) 20 it requires that the decision shall be submiJtted.:iand shall 21 include an explanation of the basis for the decision, and 22 any dissenting or separate views.
23 If the dissenting or separate views could be 24 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 --
23
7 well, you start with that period. Then the President would 2 undoubtedly take a period of time before he made his decision
3 on whether or not he wished to either authorize the license
4 or to deny it.
5 I can't estimate how long the President would take
6 to make that decision. At the point that he makes his 7 decision, there is a further 60-day period in which the
8 Congress has an opportunity to reverse or to confirm the
9 President's decision.
10 So if the decision were taken today, my own guess
11 would be that it would be between 60 to 90 days before the 12 license could issue.
13 COMMISSIONER KENNEDY: So.that conceivably, from a 14 time standpoint alone, conceivably, if the Commission elected
15 to have a hearing, a license might issu~ sooner?
16 MR. STROIBER: Conceivably.
17 COMMISSIONER KENNEDY: By a period of maybe 60 18 days.
19 CHAIRMAN HENDRIE: It is also conceivable that the 20 license, in the event of a positive vote this afternoon,
21 that the license issues how fast can you produce a license
22 when the Commission has told you to?
23 MR. SHEA: In about 30 seconds, assuming it is
24 typ~d, which it is.
Ace-Federal Reporters, Inc.
25 CHAIRMAN HENDRIE: At the close of business tod~y.
24
DBS COMMISSIONER KENNEDY:.Did you type this one?
2 CHAIRMAN HENDRIE: We will be getting unauthorized
3 expenditures.
4 COMMISSIONER KENNEDY: Let the record be clear that
5 at least this Commissioner does not believe the interest of tim
6 is necessary served by a decision not to hold a hearing.
7 Indeed I would suggest that the time consideration is not
8 one which ought to govern that decision.
9 CHAIRMAN HENDRIE: Do you want to deal with the
10 question of a hearing, before we close on 1060?
11 COMMISSIONER GILINSKY: A question of the hearing
12 prior to 1060? Yes.
13 CHAIRMAN HENDRIE: Let's get the division of the
14 house. We may have a shorter meeting this afternoon than I
15 anticipated. I will tell you I am against it in the
16 strongest terms. I feel we have already stretched out this
17 procedure to the point where it really runs beyond reason
18 and I must confess I have been the most recent adder to
19 that time myself, I am sorry to say.
20 Can I have opinions from up and down the table?
21 Mr. Kennedy indicates he would vote in favor.
22 COMMISSIONER KENNEDY: I would vote in favor only
23 because counsel rightly points out to not do so may well be
24 precluding the opportunity fora hearing, because if we are
Ace-Federal Reporters, Inc.
25 unable today to decide anything, and thus elect perhaps to 25
9 return the matter to the President, to hold a hearing then
2 on 1222, which was the original conception which I think most
3 of us had on March 6, or at least was discussed on March
4 6, to hold a hearing in those circumstances would be odd
5 indeed, because it would be a competing procedure for all of th
6 other activity that was going on elsewhere in the government,
7 indeed it could even mean a scheduling problem for witnesses,
8 who have trouble figuring out which proceeding to move to
9 on which day. They might even get troubled with testimony,
10 they would have to present it twice.
11 CHAIRMAN HENDRIE: Well, it is clear that we will
12 move to no more ridiculous a set of procedures than the
13 Commission can help.
14 The question of whether a hearing in the event 1060
15 were voted upon this afternoon and failed, it would appear
16 to me that what I will recommend to the Commission:*~in fact
17 if that is the case, is that the request for hearing, the
18 Commission's deliberation on that simply be recessed
19 to await developments on the 1060 license. And there may
20 inde~d come a time when it will be appropriate to take up
21 the matter of hearing with regard to the ongoing licenses
22 connected with the fuel supply to Tarapur.
23 So I think in the event of failure of 1060 this
24 afternoon; the hearing question is simply postponed. In the Ace-Federal Reporters, Inc.
25 event of a successful vote on 1060, then I will ask the 26
10 Commission to move immediately to the question of a hearing.
2 COMMISSIONER KENNEDY: It would be hard for me to
3 see, I would appreciate some suggestions as to the context
4 for a hearing on subsequent licenses to be held by this
5 Commission if indeed the Commission was unable to act on
6 1060, and action were taken in the other course, that is, by
7 the President, and then by the Congress, and however it was
8 decided, it would seem to me it would moot any further
9 consideration in the hearing context by the Commission.
10 CHAIRMAN HENDRIE: I don't agree at all. It
11 seems to me
12 COMMISSIONER KENNEDY: I am just asking.
13 CHAIRMAN HENDRIE: There is a ?PPlication which
14 follows 1060, which is in the house, working its way through
15 the mill. In due time the Commission will address it. Whateve
16 decision the Commission will take on 1060 it appears to me
17 that that in no way,shape, or form binds the Commission
18 decision on 1222 and indeed on what must be a considerable
19 succession of export license applications to come for the fuel
20 to Tarapur station.
21 I can't tell what the conditions might be at the tim
22 of consideration of 1222, what further information might be
23 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.
27
11 So I think you can not prejudge from whatever
2 action might be taken on 1060 the subsequent actions on down
3 the line.
4 But let me return and ask if you want to vote
5 to have a hearing on 1060 before obviously the Commission
6 decision.
7 COMMISSIONER KENNEDY: As I indicated -;,;,earlier,
8 I don't think we can do the other. If I did, I would say
9 no. But I don't think we can, and therefore I think we are
10 foreclosing the possibility of a hearing by the action we
11 take.
12 Thus I would say I would prefer to have the hearing
13 before we act on 1060. Although I have already indicated
14 what I believe about 1060.
15 CHAIRMAN HENDRIE: I count a yes vote there.
16 COMMISSIONER GILINSKY:.: I would not hold a hearing.
17 CHAIRMAN HENDRIE: Peter?
18 COMMISSIONER BRADFORD: [:.would not hold a hearing
19 on 1060. I think as the discussion goes on, it is clear
20 the concerns at least that I have would not be usefully
21 addressed further in a hearing.
22 CHAIRMAN HENDRIE: I think that is my own feeling
23 with regard to t9e things I have had in mind with regard 24 to this license, the sort of issues indeed that would be Ace-Federal Reporters, Inc.
25 exercised in a hearing probably would not affect those.
28
12 I will also vote against a hearing. And the
2 issue is therefore decided. We will not have a hearing on
3 1060.
4 I therefore invite the Commission's attention now
5 to the substance of the matter, and, Vic, why don't I
6 ask you --
7 COMMISSIONER GILINSKY: Perhaps Commissioner
8 Kennedy should speak first.
9 CHAIRMAN HENDRIE: WOuld you like to start with
10 regard to the merits of 1060?
11 COMMISSIONER KENNEDY: I don't have any question as
12 to the merits. Therefore, I am interested in what the
13 questions might be.
- 14 CHAIRMAN HENDRIE: You have a brief positive
15 statement there, Vice?
16 COMMISSIONER GILINSKY: Well, let me tel 1 you
17 I think that we have probably a unique situation here. The
18 la:w~s,rE:lquires a reasonable judgment on the part of the
19 Commission that certain criteria are met. And these provide
20 for certain protective conditions of safeguards, no explosive
21 use, and so on. These have been outlined by the staff. And
22 reprocessing control.
23 Now the wording of the criteria is forwardd 24 looking, it speaks of safeguards being applied, it says will be Ace-Federal Reporters, Inc.
25 applied, no such material and so on will be used for
nuclear explosions, no such material will be reprocessed
.. 29
13 without the United States' approval. And similarily
2 in the otehr cases.
3 Now as outlined by the staff, there are certain
4 assertions covering these various points. I am sure
5 they cover all of them.
6 The problem we have is that the agreement covering
7 US-Indian cooperation is unique in that it covers a unique
8 supply arrangement, and within the agreement and also where
9 the Indian government has related its obligations under
10 that agreement to the continued supply of U.S. fuel.
11 This in fact is mentioned in the agreement in which
12 at least in one instance different views are specifically
13 spelled out, those of the United States and those of the
- 14 Indian government concerning their obligations.
15 Now under the law, as wa*s pointed out, Section 128
16 of the law, the continued supply of U.S. fuel beyond some
17 point, an 18-month period of 24 months, depending on whether
18 you are talking about approval or exports, is contingent
19 in all cases upon all facilities in the country having nuclear
20 materials be covered by these safeguards. This is variously
21 called comprehensive safegaurds or full scope safeguards.
22 And in the Indian case there has been a traditional reluctance
23 to accept such safeguards. And the conditions that have been
24 set forth for such acceptance, without covering them in detail, Ace-Federal Reporters, Inc.
25 I think ~an be reasonably described as formidable and at 30
DB141 least to a degree not within the control.of the United
2 States.
3 So I think there is at least a distinct possibility
4 that such safeguards will in fact not be applied, and that
5 therefore the law would then require a halt to approvals
6 on exports.
7 Now that does not mean that that condition has
8 to obtain now. It is in fact clearly stated in the law that
9 it applies at some later point. However, becuase of the
10 unique nature of the US-Indian agreement, and the interpretatio s
11 that have been given to it, or at least the ambiguities that
12 surround the matter, it is not clear to me at least how the
13 Indian government would then regard its obligations under
14 that agreement.
15 It then introduces uncertainties about whether in
16 fact the various conditions set forth in the criteria will be
17 satisfied.
18 And therefore, for myself, I find that I am unable
19 to find that the statutory determinations are satisfied
20 or can be made.
21 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 with a unique agreement, one of a kind. But at any rate,
24 for these reasons I think that considerable uncertainties surrou d
Ace-Federal Reporters, Inc.
25 the question, and I believe that the correct thing to do in 31
15 these circumstances and in fact the law provides for situations
2 like this, would in fact be to submit the application to the
3 President for him to decide as he sees it in the best
4 interests of the United States.
5 CHAIRMAN HENDRIE: That is a very clear statement, 6
it seems to me. While I am turning in this direction, let me 7 ask Peter if he would like to comment.
8 COMMISSIONER BRADFORD: I would have very little to 9 add to what* Commissioner Gilinsky has said. I do agree with
10 it.
11 CHAIRMAN HENDRIE: Commissioner Kennedy.
12 COMMISSIONER KENNEDY: That was very little to 13 add, I would say. It was beautifully put.
14 COMMISSIONER BRADFORD: My agreement was the 15 addition.
16 COMMISSIONER KENNEDY: Let me say a couple of 17 things.
18 First, I reviewed the matter very carefully, and 19 looked very carefully at all of the criteria, and at the 20 evidence presented, the argumentation raised by the Executive
21 Branch and then by the sfaff, and am fully persuaded that 22 issuance of the license is justified, and certainly would not 23 be inimical to the common defense and security, the grounds 24 on which it would be denied.
Ace-Federal Reporters, Inc.
25 Secondly, it seems to me the law was very carefully 32
... 16 phrased, and there is a very long history, amply rehersed for 2 us by counsel in the very recent memorandum.
3 The law was not capriciously drawn, it was laid out
4 to provide for precisely the kind of diplomatic effort 5 which is required and will be required to encourage others to
6 follow the lead which the United States has set.
7 It was not intended that a cut-off be made, nor
8 was it intended that the Commission accomplish a cut-off. It
9 was intended that the Commission be given guidance, it seems
10 to me it was, and that guidance has been met.
11 I see no reason not to act on the license. As to 12 the question of whether the President should look further at
13 the matter, of course the law authorizes that. After all, we
14 were in no small measure on this Commission responsible for
15 that part of the law. We testified strongly in support of
16 it, believing that it was incorrect that a regulatory 17 commission, independent regulatory commission, be given an 18 unfettered ability to influence the foreign policy and the 19 commerce of the United States.
20 But I see no reason to believe that the law intende
21 that each time the Commission found a tough one,.that it toss
22 it back to the lap of the President. For, after all, who was
23 it who sen*t the recommendations forward to the Commission?
24 The Executive Branch of Government, not an individual, not Ace-Federal Reporters, Inc.
25 a single department, the Executive Branch of the government, in 33
17 personification only of the Secretary of State, a6ting
2 for and on behalf of the Executive Branch of the government,
3 al]L:i.thqf.?e agencies and activities responsible directly to the
4 President of the United States.
5 Hardly would it seem to me could we expect to
6 receive a recommendation from the Secretary of State which
7 would run counter to that of his President. I don't believe
8 it and I think I have some reason from my own past experience
9 to suggest there is the least possible possibility of such a
10 thing occurring.
11 One last point. It seems to me that~bhe~law
12 did not intend to convey to this Commission in any way
13 the opportunity or obligation to act prospectively as to our
14 £oreign policy. That is the responsibility of the
15 President, and of the Secretary of State, constitutionally it
16 is the responsibility of the President, not statutorily. And
17 it seems to me for us to say what we believe will be the -------=---------
18 outcome of negotiations yet to occur is to p:i;-esume gr_e_a:tJ.:--1: -- - -.---- ---
19 upon our responsibilities and the limits of those responsibilit es.
20 And for us to act because we can not conceive the result to
21 be as we might like it is not only incorrect, it may even
22 be illegal. Thank you.
23 CHAIRMAN HENDRIE: I guess I should complete the
24 round by making it clear that for myself I £ind the analysis
Ace-Federal Reporters, Inc.
25 of the appoication with regard to the criteria conditions 34
18 l forwarded to us by the Executive Branch and gone over by our
2 own staff, to be satisfactory.
3 I am able for myself to make a positive finding
4 on the matter. I do recognize the concerns that Commissioner
5 gilinsky has very ably summarized.
6 It does seem to me, however, that in a sense going
7 in the direction that he feels this requires him to go begins
8 to guarantee the-outcome about which>he is concerned. And
9 I don't find it for myself necessary to go that far, and
10 prefer, rather, to deal with the matter on the basis of
11 assurances and analyses offered by ~r own staff and the State
12 Department.
13 Now let me summarize up and down the table. If I
14 infer incorrectly as to your votes, you can correct me. But
15 it seems rather clear-cut.
16 With regard to your ability to make a positive
17 finding on the 1060 application, I assume that Commissioner
18 Kennedy votes yes.
19 COMMISSIONER KENNEDY: Yes.
20 CHAIRMAN HENDRIE: Commissioner Gilinsky votes no.
21 And Commissioner Bradford votes no. I am voting yes.
22 If I infer your votes correctly, okay. The Comm
23 ission then divides 2 to 2, and the application fails here.
24 Now let me turn to the next matter that --
Ace-Federal Reporters, Inc.
25 COMMISSIONER BRADFORD: Before we get entirely away 35
~ -- ----- --- -- -------: I 19....:..r.om : f h. 1.::1.I **. ___ t __ J..--s-,---I--won1..,ef::..I f h h 1 '. d __,rat er tan eave certain misun er-1
. i 2 standings here, I might speak to a couple of the points '
3 Commissioner Kennedy made?
4 CHAIRMAN HENDRIE: Please do. I didn't mean to
5 cut off discussion at this point.
6 COMMISSIONER BRADFORD: There is at least the
7 distant hope I might convince him. But in any case, I will
8 clear the air a bit.
9 COMMISSIONER KENNEDY: Within 18 months?
10 COMMISSIONER BRADFORD: Clear the air in 18 mon:ths
11 or convince you in 18 months?
12 COMMISSIONER KENNEDY: Convince me within 18
13 months. Because you only have 18 months or there is a cut-off.
14 But do you want to cut it off now or in 18 months?
15 CHAIRMAN HENDRIE: Let.him try to convince you.
16 COMMISSIONER KENNEDY: Not unelss he issues the
17 license.
18 CHAIRMAN HENDRIE: If he does, it doesn't improve
19 the negative position.
20 COMMISSIONER BRADFORD: With regard to a few of the
21 specific points, I think speaking for myself at least, it is
22 important to be clear that *ram not necessar;i:ly saying that
23 it is inimicable with the common defense and security that
24 the export be sent. We are evaluatipg it in terms of the Ace-Federal Reporters, Inc.
25 certain criteria. The law requires that we certify with 36
20 regard to those crtieria and it is that certification that
2 I have difficulty with.
3 The President, of course, has a rather different
4 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 5
6 prejudicing or in any way intending to prejudice *the
7 environment +/-:fu which he makes those decisions.
8 As to whether or not the position that I am taking
9 requires predicting the outcome of negotiations,. off in the, __ -
10 future, I don't feel that it does.
11 I feel that it is sufficient that we don't know and
12 have substantial reason to be uncertain in this particular
13 case about the outcome of these negotiations.
- 14 One doesn't have to predict with certainty that
15 they will fail in order to conclude that the uncertainty over
16 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 37
21 tough ones, and wouldn't want to let that comment pass
2 unremarked.
3 COMMISSIONER KENNEDY: We shall see. What thres-
4 hold would you use as to whther it is likely to be futile or
5 thus incumbent upon us not to act}_. or above which it may
6 have chances enough of success to warrant our going ahead?
7 Where is the threshold? Somewhere above zero,
8 but how far? If there is one chance-in two of success,
9 is that success not worth pursuing? If there is one chance
10 in three of success? What we are looking for here are the
11 things the law sought, and the President seeks, a non-prolifer
12 ation regime accepted broadly. What is the threshold?
13 COMMISSIONER BRADFORD: Without attempting to defin
14 with precision a threshold that I am satisfied that we
15 aren't at here, I will say as a general matter! conceive of
16 the law --
17 COMMISSIONER KENNEDY: Where are we here?
18 COMMISSIONER BRADFORD: That I think Commissioner
19 Gilinsky stated well enough,cfor my purposes at least.
20 But the diff icul tyc;one:. *has in dealing with
21 one out of three, one out of two, one out of four, in the
22 context of this legislation, is that there are these criteria,
23 and the Congress didn't intend us to assign, as far as I
24 am concerned, a one out of two, one out of three, one out of
Ace-Federal Reporters, Inc.
25 four type probability to those criteria; it intended us to 38
22 assure that they at least would be met. In a circumstance
2 in which the Commission is unable to certify that they are
3 met, it then provided if the President, on the basis of his
4 assessment, into which fluctuating probabilities have a
5 much, I think, more easily accommodated scope, if in his
6 assessment those probabilities tilted in the other way, he,
7 of course, could make the determination that the.export should
8 go.
9 CHAIRMAN HENDRIE: Vic, did you want to comment?
10 COMMISSIONER GILINSKY: I think it is worth
11 underlining the point that there are two ways in which an
12 export can fail. The Commission can decide in fact the
13 export is inimical to the common defense and security, or
14 the Commission can decide that it can not find that the
15 criteria are met. And they are rather different cases.
16 COMMISSIONER KENNEDY: In either case they are a
17 denial.
18 COMMISSIONER GILINSKY: The President is not
19 similarily constrained. His judgment can be based on broader
20 grounds. So a decision here is not one that points to an
21 Executive decision of one kind or another. It simply is a
22 statement that the Commission has failed to find these
23 statutory criteria have been met.
24 COMMISSIONER KENNEDY: Two members of the Commissio Ace-Federal Reporters, Inc.
25 have failed.
39
23 CHAIRMAN HENDRIE: I think it is clear that the 2
Commission would require a three vote majority to approve the 3
issuance of the license and direct the staff to issue it.
4 And we have not -- the house is divided 2-2, and the applicatio 5
therefore fails before this Commission.
6 Now I do want to move forward. It seems to me 7
that the matter should be returned to the Executive Branch 8
forthwith, informing them that the Commission divides 2-2 9
with regard to making a positive finding, and the matter is 10 thereby in their hands.
11 Now I have an interesting question raised by the 12 counsel's office, and that is whether or not that 1nE6rming 13 of the Executive Branch occurs immediately, and automatically 14 upon failure of the issue at this table, or whether a 15 positive vote of a majority, which means 3 votes, is indeed 16 required to send it over and on balance the counsel feels 17 that the law may indeed incline towards the latter.
18 I will give them a chance if they would like to 19 amplify on that opinion.
20 Let me say that I find that peculiar. The 21 Commission is now four members, 2-2 votes are not unusual.
22 Furhter Commissions with five members may indeed have 4 23 voting members on issues of this kind. So I think it is not 24 Ace-Federal Reporters, Inc. necessarily a totally unique situation.
25 It apepars to me with the Commission divided 40
24 2-2 on the license, the merits of the license itself, it is
2 conceivable at some future occasion it could also
3 divide 2-2 on whether to send the matter forward and thereby
4 the thing falls into a 120-day limbo until the provision of
5 the law that says~after 120 days it goes back no matter
6 what we have done, I guess, comes into effect.
7 I would find it hard to believe that the drafters
8 of thelegislation had such a peculiar side pocket built in,
9 and I would recommend to the Commission that it adopt the view
10 that upon failure of a license here, it go automatically to
11 the Executive Branch.
12 However, Jim, would you ~re to support the
13 opposite opinion?
14 MR. KELLEY: Well, mr. Chairman, you stated the
15 contrary argument, I think, quite well. I believe the
16 statute is ambiguous in this regard and can be read either
17 way.
18 Given ambiguity, I believe I would prefer to
19 read th$,::-, statute to require a majority vote. It seems
20 to me in a variety of circumstances it might be, under
21 this hypothetical, even with a four-member Commission, on a
22 given day you might split 2-2, but you may feel very differentl
23 about whether it is time to send it down the street.
24 One Commissioner may feel that another Cowmissioner
Ace-Federal Reporters, Inc.
25 is wavering, and given another crack, he can talk him into it.
... 41
,a DB25 Under the automatic referral reading, indeed the wa
2 we handle export licenses around here, the Secretary will
3 pick up four pieces of paper, two checks in one box and two
4 checks in the other, and send it to the President.
5 This sort of automatic referra-L:.approach is not
6 the way I would read it. I would read the statute in such a
7 way as to put pressure on the Commission to decide on the
8 merits, if possible. I don't think the statute contemplates
9 ready quick referral. I think it should be the utmost effort
10 devoted to deciding on the merits if you can. But I also think
11 that is a rule of reason and what will really happen is what
12 is happening here this afternoon. Wh~n~you split 2-2 on the
13 merits, you are likely to get 3-1 or 4-0 on whether to send
14 it over.
15 So that is where I come out. But it is a new
16 statute, with a lot of legal issues in it. I sent you and the
17 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.
Ace-Federal Reporters, Inc.
25 CHAIRMAN HENDRIE: I think it would be useful to 42
., 26 sort it out, and indeed we might even discuss the matter
2 with some of the sponsors of the legislation and see what
3 they think about it. They might want to cure the situation
4 with a word or two down the line.
5 But indeed I think the majority of us, I think
6 probably all of us, have agreed that in the event of a 2-2 spli,
7 we do believe it should go forward promptly to the Executive
8 Branch.
9 I therefore ask for a vote of the Commission that
10 that be done.
11 COMMISSIONER KENNEDY: I would caviat my vote to be
12 certain of the form in which it will go forward. I would
13 like my views explicitly addressed.
- 14 CHAIRMAN HENDRIE: I would
15 COMMISSIONER KENNEDY: To the Executive Branch
16 so it would know how I would vote, (a) on the question of
17 the hearing, and (b) on the question of the license. And I
18 will be submii:tting for the record a more detailed explanation
19 6f my views.
20 CHAIRMAN HENDRIE: Just so. I think the notice
21 to go £orward to the Executive Branch should simply say
22 this is to inform you that the Commission has divided 2-2 on
23 the matter of the 1060 application, and is therefore unable
24 to make a positive finding under the Non-proliferation Act
Ace-Federal Reporters, Inc.
25 of 1978.
43
... 27 COMMISSIONER KENNEDY: Mr. Chairman, that wasn't th
2 thrust of my comment.
3 CHAIRMAN HENDRIE: No, no. But to that rather
4 simple message I would expect the views, the individual views
5 of the Commissioners to be attached.
6 COMMISSIONER KENNEDY: Then it. will be delayed
7 somewhat in getting to the Executive Branch. I would hope
8 the Executive Branch would be notified no later than tomorrow.
9 My purpose will be served by simply stating that the
10 Commission has voted 2 to 2, X and Y voting yes, A and B voting
11 no, and their views will be submitted subsequently for you;
12 we are simply advising you now so you can take whatever steps
13 you wish to take.
14 COMMSISSIONER GILINSKY: Having not decided the
15 issue, I don't think we ought to wait to present our views
16 totthe Executive Branch.
17 MR. STROIBER: I can read the statutory language
18 which bears on this. "If the Commission does not issue the
19 proposed license on a timely basis, because it is unable to
20 make the statutory determinations required under this Act,
21 the Commission shall -publicly issue its decision to that
22 effect and shall submit the license application to the Presiden
23 in the following laDguage. The Commission's decision
24 shall include an explanation of the basis for the decision" Ace-Federal Reporters, Inc.
25 that would be the 2-2 split --"and any dissenting or separate
view;s,."
44
2!'8 So it appears to me from reading the statute,
2 separate or dissenting views have to accompany the decision.
3 I think the:.*rationale behind that is so the
4 President,cin making his judgement, would have the rationale
5 of the dissenting or separate views before him at that time.
6 CHAIRMAN HENDRIE: I trust there will be a
7 considerable effort on the part of the individual Commissioners
8 to get their remarks in shape so they can be sent
9 COMMISSIONER GILINSKY: I don't think our remarks
10 conerning our initial decision should have to await the
11 time when we submit the views to the Executive Branch. They ar
12 two distinct decisions.
13 CHAIRMAN HENDRIE: Somehow I am not following
14 you, Vic.
15 COMMISSIONER GILINSKY: The decision on the license
16 itself, our views on that. But the decision on submitting
17 it to the Executive Branch.
18 MR. STROBER: It seems to me a fair reading of
19 the statute would permit a submission of the license
20 application seaprately from the submission of the decision
21 which includes the reasoning.
22 COMMISSIONER KENNEDY: That was my suggestion.
23 MR. STROIBER: However, when you submit the 24 decision,* that will have to have appended to it any spearate Ace-Federal Reporters, Inc.
25 or dissenting views.
45
y 29 COMMISSIONER BRADFORD: What is the first of those
2 two?
3 MR. STROIBER: That would be, I would thihk,
4 something in the nature of a cover letter, with the Chairman
5 saying we hereby submit this license to you, Mr. President.
6 COMMISSIONER BRADFORD: That could be immediately?
7 MR. STROIBER: I would think so.
8 CHAIRMAN;iHENDRIE: I think it necessarily has to
9 say why it is corning over.
10 MR. KELLEY: But the sending of separate views
11 are views on the merits of the license, not that we
12 split 2-2.
13 COMMISSIONER GILINSKY: I don't see why those should
14 await -- I mean whenever a Commissioner has them available.
15 I guess I would not like towait to*present my views on this
16 matter.
17 CHAIRMAN HENDRIE: In fact, I would hope they would
18 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.
46
30 As I indicated sometime ago to the Acting Chairman,
2 when the matter arose, if there were to be dissenting views
3 to be issued, I assume I, or whoever it was, indeed any one
4 of us, would be accorded the same courtesy as he has in the
5 past when he has done so. I assume that will be the case.
6 Indeed I will insist upon that being the case for my colleagues
7 in the future, I would hope they would insist on it being
8 the case for me.
9 COMMISSIONER GILINSKY: That was also several weeks
10 ago.
11 COMMISSIONER KENNEDY: No, it wasn't quite several
12 weeks ago. Indeed it will be recalled that meeting
13 after meeting was postponed, although on one occasion I even
14 came into the meeting room thinking it was occurring.
15 I will prepare my views as quickly as it is possibl
16 for me to prepare them, Mr. Chairman.
17 CHAIRMAN HENDRIE: I think that is a fair propositio 1 **
18 COMMISSIONER KENNEDY: And I will expect then
19 whatever package is being forwarded will await their
20 preparation.
21 MR. STROIBER: The General Counsel's office will
22 circulate a draft decision this afternoon.
23 CHAIRMAN HENDRIE: Let! s see. You;:are about to
24 leave for a week, aren't you?
Ace-Federal Reporters, Inc.
25 COMMISSIONER KENNEDY: That is correct, a fact
" 47
DB31 which I made note of two weeks ago when a meeting was :::~ 0 \\ -:_ -,
2 cancelled and a week ago when a meeting was cancelled and
3 earlier this week when a meeting was cancelled, and I have
4 attended each meeting of the :~:oommission that has been held
5 since.
6 MR. KELLEY: Mr. Chairman, may I make a
7 suggestion
8 COMMISSIONER KENNEDY: And, I might add, not found
9 myself unable to participate in the meeting.
10 MR. KELLEY: You do have a transcript of the
11 public meeting, which everyone is given. One possibility
12 might be to send a short letter saying we split 2-2, trans
13 cript attached, explanation of views later.
14 COMMISSIONER KENNEDY: I think that is a splendid
15 idea. Additional views can be submitted later.
16 COMMISSIONER GILINSKY: Isn't this a matter with
17 interest. I think that there could~be mis-
18 understanding over'the reasons for the Commission vote.
19 And I think it would be useful, I at least would like to
20 present wirtten material that Commissioner Bradford and I
21 prepared and make that available, because I think it is
22 important to the understanding of the decision.
23 COMMISSIONER KENNEDY: I share that view one hundre
24 percent. r=thinkkmy:~town views are important enough to have Ace-Federal Reporters, Inc.
25 reduced them to writing, they need some work, and since I ti 48
32 have not taken the time away from Commission meetings to do
2 that work, I believe I ought to have tnat time. I will be
3 prepared to do it, and I will not be at the Commission meetings
4 tomorrow, but I will make known the reason.
5 CHAIRMAN HENDRIE: I urge the speed:j:est possible
6 preparation of y9ur additional remarks, so we can --
7 COMMISSIONER KENNEDY: Mr. Chairman, I always prepa e
8 my remarks and indeed as the record will clearly indicate,
9 always act upon these matters, including this one, some
10 weeks before this discussion.
11 So I appreciate your concern; your admonition
12 is unnecessary.
13 CHAIRMAN HENDRIE: Vic, I think if you have some
14 material in hand, I think it could very well be attached to
15 the transcript, so.it is immediately available.
16 COMMISSIONER GILINSKY: Of course I would like
17 to give you and Commissioner Kennedy time to see it.
18 CHAIRMAN HENDRIE: Circulate it to us. But that
19 would provide a mechanism for making it immediately
20 available.
21 COMMISSIONER KENNEDY: Mr. Chairman, I consider thi
22 an outrage.
23 CHAIRMAN HENDRIE: I am sorry --
24 COMMISSIONER KENNEDY: Let the record show that.
Ace-Federal Reporters, Inc.
25 CHAIRMAN HENDRIE: I am sorry, I don't. If
- 49
"' DB33 Commissioners have prepared remarks and would like to make
2 them available, there is,*nothing to prevent a Commissioner
3 from putting a stack of papers in the back of the room if he so
4 chooses and make in effect a public document.
5 COMMISSIONER KENNEDY: I understand that, Mr.
6 Chairman.
7 CHAIRMAN HENDRIE: If the Commissioner would like
8 to attach a copy of his remarks to the transcript that is
9 fine.
10 COMMISSIONER KENNEDY: We havez~now revised the
11 way in which we proceed in this Commission and deal with
12 each other, I understand that, and that is the way it will
13 be henceforth.
14 : CHAIRMAN HENDRIE: I think that is the way we
15 have been operating for sometime.
16 COMMISSIONER KENNEDY: No, it is not, Mr.
17 Chairman, not at all in the past.
18 CHAIRMAN HENDRIE: Well, I do think that provides
19 a mechanism to make those things a~ailable. Obviously it is
20 available to all of us.
21 Okay. Thank you very much for coming. The
22 Commission gets a three-minute rest and then we have an affir-
23 mation item which is very important we do from the standpoint 24 of litigation. And then there is a classified meeting Ace-Federal Reporters, Inc.
25 which will be a closed meeting of the Commission, a
- 50
DB34 continuation of the one we had this morning. Thahk you.
2 (Thereupon, at 2:30 p.m. discussion of the
3 above matter was Goncluded.)
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