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would appear to be at fuel reprocessing and fuel fabrication plants and for

materials in transit.

These risks of terrorist, or other subnational, theft

will increase if plutonium and highly enriched uranium become widely used as nuclear fuels, particularly if and when breeder reactors come into

general use.

At present responsibility for protection of nuclear materials

and equipment is that of the nations involved. There is no international nu

clear security agency,

U.S. agreements for cooperation do not commit agreement nations to

meet U.S. standards for physical security.

Although the agreements place

U.S. supplied materials and equipment under international safeguards, these do not extend to physical security. The furthest that the International Atomic Energy Agency has gone is to issue a security guide. If the Nuclear Regula

tory Commission is required to decide whether physical security in an agree

ment nation is adequate to permit licensing of a proposed nuclear export, then some consideration is indicated of the relationships between the State Department, the Energy Research and Development Administration and the Commission in considering physical security in the negotiation and administration of agreements for cooperation and in the licensing of nuclear ex

ports.

10. Preference for NPT adherents

Although encouraging nations to ratify the Non Proliferation Treaty is a goal of U.S. foreign policy, the agreements for cooperation do not include preferential terms for nations that have ratified the treaty. Whether such preferences should be provided, and in what forms, is an open question for the 1970s.

The Non Proliferation Treaty has been in effect for five years. During

this time, none of the agreements for cooperation have been amended to give

any preference to those agreement nations which ratify the treaty, or at least to agree to place all of their nuclear activities under international safe

guards. Whether such preferences would affect the hard core of industrial nations opposed to the treaty is debatable, regardless of whether other,

less determined nations might be influenced to ratify. Whether it would be

feasible to offer some preferential treatment for agreement states that ratify the NPT and whether such preferences would be worth their cost and pos

sible disadvantages are questions meriting congressional attention.

11. Government-to-government transfers

Although most nuclear exports are now made via export licenses issued by the Nuclear Regulatory Commission to private parties, the Energy Research and Development Administration still may make government-to-government transfers. Two issues arise from this situation. First, to what extent could the executive branch use such transfers to circumvent export controls by the Commission? Second, what voice, if any, should the Commission have in the negotiation and administration of governmentto-government transfers?

In the early years of nuclear cooperation, the U.S. Atomic Energy Commission often transferred materials directly to agreement nations without export licenses. Such licensing was limited to exports by fledgling com

panies in the U.S. nuclear industry. In later years, direct government to

government exports decreased as the USAEC withdrew from competition

with the growing U.S. nuclear industry.

Now most nuclear exports are made via export licenses of the Nuclear

Regulatory Commission issued to companies in the industry or to persons

who act as agents in the United States for foreign customers. However,

government to government transfers remain possible and under

the Energy Reorganization Act still require no license.

Although there is little serious anticipation that the Nuclear Regu

latory Commission would be continually at loggerheads with the State Department or the Energy Research and Development Administration over nuclear cooperation and exports, it appears that the executive branch could try to circumvent an obstinate Commission by reviving government to government transfers. If this loophole is real, then Congress may wish to consider the future use of government to government exports, limitations upon their use, and the relationships of the State Department, the Administration and

the Commission in their arrangement.

Concerning information in the public record, the Commission's practices for domestic licenses would suggest full information in the dockets for export licenses. On the other hand, details of foreign policy matters usually are not open to the public. The extent to which the Commission's decisions on export licenses should be documented in the public docket is a question likely to be raised by public interest groups concerned about

U.S. nuclear exports.

12. NRC findings on defense and security

The Nuclear Regulatory Commission has to make findings involving the common defense and security, based largely upon information and analysis provided by the executive branch. Of likely congressional interest is the ability of the Commission to develop resources capable of arriving at sound findings, and the extent of documentation of these findings in the public record.

Before it can issue an export license, the Nuclear Regulatory Commis

sion must find that the export is not inimical to the common defense and

security.

Since the Commission is primarily an independent regulatory

agency concerned with certain economic and safety and environmental effects

of civil nuclear power, it has comparatively little experience with consider

ation of national defense and security.

The Atomic Energy Act of 1954 as amended contains no guidance or

detailed definition of this criteria and the Commission's resources to con

sider these factors are small in comparison with those of the Federal de

partments having primary responsibility for defense and security.

The

Commission receives advisory analyses from the Department of State after

that Department has obtained comments and inputs from other departments

and agencies.

It serves as the funnel for a homogenized statement of

advice from the executive branch,

Also, the dockets of the Commission's

license actions contain little information of the Commission's analyses.

Of potential interest to Congress are two matters. First, the Commission's ability to independently arrive at sound findings concerning the relation of a particular export to national defense and security. Second,

in the light of recent moves to open up the processes of government to

the public, it may be time to consider what information should appear in

the Commission's dockets for export licenses.

13. Peaceful nuclear explosives

Although the U.S. opposition to non-weapons states' developing nuclear explosives of any kind is well known, except for three

cases the agreements for cooperation are silent on the use of U.S.supplied materials and equipment for this purpose. How important are guarantees not to use U.S. exports for this purpose, and what can be done to obtain the guarantees, are matters of current interest.

The agreements for cooperation are silent about use of U.S. -supplied

materials and equipment to develop so-called peaceful nuclear explosives. Only four agreements, those with Israel, Portugal, Spain and South Africa,

note the U.S. opposition to such use. Although all agreement nations are

committed to use transferred items solely for civil purposes and not to use them for atomic weapons or for military purposes, there is no prohibition on peaceful nuclear explosives. The definition of atomic weapons in the

agreements does not include such devices, * and civil uses are not defined.

Considering that United States opposition to the development of such devices by non-weapons nations is well known, it seems unlikely that an agreement state would resort to a legalistic reading of the present terms to justify its misuse of U.S. supplied materials and equipment.

Nonetheless, it could happen. Considering that the echoes of the Indian Government's detonation of a peaceful nuclear explosive are still being heard in discussions of safeguards and proliferation, it seems likely that Congress will be interested

in the administration

agreements for cooperation to prevent such use of

U.S. -supplied materials and equipment.

* An atomic weapon is defined in U.S. agreements for cooperation to mean any device utilizing atomic energy the principal purpose of which is for use as, or for development of, a weapon, a weapon prototype, or a weapons test device. There is no reference to explosive devices.

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