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Before it can issue an export license, the Nuclear Regulatory Commission 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 consideration 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 consider these factors are small in comparison with those of the Federal departments 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 in-
terest.

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 of 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.

14. Public participation

The public has no opportunity to participate in the negotiation or administration of agreements for cooperation and limited opportunities for participation in the licensing decisions of the Nuclear Regulatory Commission. Whether and to what extent such participation is desirable, its advantages and disadvantages, and the nature of information to be made available to the public are controversial questions. Nonetheless, it may be desirable to consider them in the light of recent trends toward openness in government.

The negotiation and administration of agreements for cooperation provide for no public participation nor would they usually be expected to for subjects of less importance than proliferation of nuclear weapons. Details

of foreign relations historically have been kept confidential without public participation. Now the procedures of the Nuclear Regulatory Commission provide for some public participation for decisions on nuclear exports and the possibility of a hearing before an Atomic Safety and Licensing Board. So far these provisions have been little exercised.

As for documentation for the public, the records of agreements for cooperation are not public documents whereas certain documents appear in the Commission's dockets for export licenses. These dockets, however, contain little detailed information or analysis used by the Commission.

Whether there should be expanded opportunity for public participation in arrangements for nuclear cooperation with other nations is a controversial question. It is complicated by the organizational situation in which two Federal agencies with little history of public participation have the responsibility for negotiation and administration of agreements and an independent regulatory agency with a history of openness acts on export licenses.

Nonetheless, with the present trends toward participatory democracy and openness in government, the matter of public participation may merit atten

tion.*

* One difficulty encountered in making this study was obtaining complete and authentic texts of many of the agreements for cooperation. Often a final version had to be assembled by cutting and pasting changes from various documents. So there is some uncertainty that all of thes reconstructions are wholly accurate. Since the agreement documents are comparatively short, it would appear both feasible and desirable to republish complete, authentic texts for revised agreements, and to reissue a complete text whenever an agreement is modified in the future.

II. PURPOSE, APPROACH AND INFORMATION SOURCES

The Senate Committee on Government Operations requested the Congressional Research Service to prepare a background report on U. S. agreements for cooperation in atomic energy, more commonly known as bi-lateral agreements. The purpose of the report is to provide background information for hearings on S. 1439, The Export Reorganization Act of 1976, which proposes to revise Federal organization and control for U. S. nuclear exports.

The report describes the origins of the present web of U. S. bilateral agreements, identifies and discusses features relevant to limiting the further proliferation of nuclear weapons among nations of the world, describes similarities and differences of several kinds of bilateral agreements, and concludes with a statement of observations and issues for further congres

sional attention.

The report is based upon the examination of 32 agreements for cooperation with foreign nations and international organizations plus a review of information previously presented to Congress and to the public on the negotiation, administration and use of these agreements. The approach is comparative, seeking to point out salient features, similarities and differences, and to indicate the significance of some of these features to the organization and management of nuclear exports under new organizational relationships established by the Energy Reorganization Act of 1974.

Sources of information include the texts of the agreements, and hearings before the Senate Committee on Government Operations, the House Committee on Interior and Insular Affairs, and the House Committee on International

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