The Export reorganization act, 1975 : hearings before the Committee on Government Operations, United States Senate, Ninety-fourth Congress, first session, April 24, 30, and May 1, 1975 online

and Scientific Affairs, and former Chairman of the Atomic Energy
Commission; Dr. Robert C. Seamans, Jr., Administrator, Energy
Research and Development Administration; John K. Tabor, Deputy
Secretary of Commerce. Finally, we will hear Dr. Gerald F. Tape,
U.S. Ambassador to the International Atomic Energy Agency.

Mr. Anders, we are delighted to welcome you here today, and per-
haps you would like to introduce the other persons you have brought
with you today.

TESTIMONY OF WILLIAM A. ANDERS, CHAIRMAN, U.S. NUCLEAR

REGULATORY COMMISSION

Mr. Anders. Thank you, Mr. Chairman. I have two of my col-
leagues with me, Commissioner Kennedy, on my left, and Commis-
sioner Gilinsky, on my far right, and then on my immediate right,
Ben Huberman, one of our key staff persons working in this par-
ticular area.

Senator Glenn. Please proceed with your statement.

Mr. Anders. Mr. Chairman, first let me say that I am in complete
agreement with the spirit and intent that motivates all of us to
assure that peaceful nuclear export will be used for peaceful pur-
poses.

(87)



88

The Energy Reorganization Act of 1974 assigned to the Nuclear
Regulatory Commission all the licensing functions of the former
Atomic Energy Commission, including the responsibility for issuing
export licenses. These export licensing responsibilities are defined in
various provisions of the Atomic Energy Act of 1954, as amended.
These include sections 53 and 57— relating to special nuclear ma-
terial; sections 62 and 69 — source material; sections 81 and 82 — by-
product material ; section 103 — commercial production and utilization
facilities ; section 104 — facilities for use in medical therapy and re-
search; and section 109 — component parts of facilities.

The relevant provisions require the NRC, before issuing an export
license for a nuclear facility or nuclear material, to determine
whether issuing the license would be inimical to the common defense
and security and — in certain cases — whether the export would be
under the terms of an agreement for cooperation pursuant to section
123 of the act.

While the NRC has statutory responsibility for determining
whether such licenses should be issued, authority for entering into
and approving agreements for cooperation is vested in the executive
branch and Congress. Moreover, the executive branch has the chief
mechanisms, through its national security and foreign relations
agencies, to gather the information and make integrated national
policy assessments which the NRC must have prior to reaching its
determination as to "common defense and security."

This allocation of responsibilities necessitates the development of
effective working relationships between the executive branch and the
NRC, so that the Commission can effectively — and independently —
exercise its legal responsibilities and have available all of the infor-
mation it needs in reaching its decision.

Mr. Chairman, I would like to depart from my testimony, and
say that a previous witness, avIio I respect quite a bit, Mr. O'Leary,
and who has served very well in the Atomic Energy Commission,
indicated in the copy of the testimony I have that the NRC's job at
the present is strictly a ministerial one, one of being a rubberstamp.
I would like to assure you, we do not look at it that way. It is not the
way we are conducting the operation at this time. It might have
happened in the past, but that is not the way it is now.

We are in the final stages of developing new procedures with the
executive branch. Our present intent is to workout guidelines spelling
out the type of information which the executive branch will develop
and assess and which will then form the basis for necessary NRC
determination prior to issuing the export license. I visualize the
guidelines as covering both specific questions — such as whether the
United States has an agreement for cooperation with the recipient
country — and more general information relating to matters, such as
the adequacy of the recipient country's physical security arrange-
ments, bearing on the export license request. All of this information
and these assessments will permit a balanced judgment on the under-
lying issue — whether the export will be used exclusively for peaceful
purposes and not diverted to military uses. I am confident the guide-
lines we are developing will provide a workable basis for coordi-
nating the national security determinations required of the NRC with



89

the executive branch's overall responsibility in foreign relations and
the national defense. As soon as these procedures have been de-
veloped, but prior to their final approval, we will discuss them with
the cognizant congressional committees, as I promised personally to
Senator Ribicoff.

In the meantime, the NRC is working on the basis of interim pro-
cedures. Because there has been some comment from foreign author-
ities and in the press about NRC's present licensing practices, I
would like to explain just what we are doing. As new cases come in,
we are asking the State Department to furnish the NRC with the
views of the executive branch on the "common defense and security"
considerations referred to in the Atomic Energy Act.

The content of the information which the State Department is
reviewing is of essentially the same nature as that being developed
under the proposed XRC executive branch guidelines for the new
procedures. Based on the information developed by the State De-
partment in consultation with other executive agencies, the NRC
will then make an independent determination in accordance with its
responsibilities under the present law. In route cases, the Commission
staff will take the necessary actions. However, in the more important
cases the Commissioners themselves will review export licensing ap-
plications on a case-by-case basis at least during this transition
period. We have established the following internal NRC guidelines
for the staff's use in determining which cases will be referred to the
Commissioners. For nuclear material exports, the Commissioners will
review all applications having policy significance, as well as any
license request involving over one effective kilogram of special nu-
clear material or over 10,000 kilograms of source material. In the
case of production or of utilization facilities — such as power reactors
— the Commissioners will review all license requests. Pending cases,
which the AEC regulatory staff had received and forwarded to the
Atomic Energy Commission's international security office prior to the
establishment of NRC in January, will generally be handled accord-
ing to the same guidelines as we have established for new cases. In
these instances, the NRC staff will review the documentation de-
veloped by ERDA since the relevant ERDA office had begun proc-
essing the applications before the establishment of NRC. Should a
review of that documentation suggest need for additional infor-
mation, views of assessments, NRC will obtain them from the exec-
utive branch.

For import licenses, similar procedures are also in effect. The Com-
missioners will review all applications having policy significance, as
well as any import license for special nuclear materials and any im-
port license for more than 10,000 kilograms of source material.

These interim procedures have led to some misunderstanding in the
United States and abroad to the effect that NRC has placed an em-
bargo on nuclear exports. I want to state categorically that this is
not the case. Let me repeat the Commission's statement of March 28
of this year.

Pending the completion of the presently active review of the regulations and
the procedures which should be followed by NRC and other Government agen-
cies regarding the licensing of exports, the Commissioners will review all export
license applications involving reactors or significant quantities of source or spe-
cial nuclear material.



90

As I have already indicated, these interim procedures are some-
what more time consuming than the procedures in use before January,
or the procedures we will soon establish in cooperation with the exec-
utive branch. However, they have not resulted — as some foreign
sources have implied — in a cutoff of needed fuel supplies which the
United States had earlier agreed to provide. "We have already issued
two major sets of licenses under the interim procedures, relating to
exports to the Federal Republic of Germany and Japan.

We will continue to process license applications expeditiously under
the interim procedures until the new procedures are in effect.

With regard to the proposed Export Reorganization Act, the Com-
mission is now in the process of analyzing the proposed legislation
and has not yet developed its formal position. We will, of course, be
glad to provide our views as soon as we have completed our analysis
of the provisions of the proposed legislation.

Senator Glenn. Thank you very much.

Do any of the other gentlemen at the table have a statement to
make separately from yours?

Mr. Anders. Xo, they do not.

Senator Glenn. In line of past proceedings for the committee
hearings, we would like to keep the first round of questioning to 10
minutes, and I have a couple of questions here to start off with. Then
we will go the 10-minute route, and then have unlimited questioning
after that, or questioning by other committee members who may be
here today.

Mr. Anders, as your statement that the Nuclear Regulatory Com-
mission must develop effective working relations with the executive
branch to obtain all of the information necessary for the Commission
to effectively and independently carry out its export licensing re-
sponsibilities — is this possible, and how can NRC make independent
licensing decisions when you are totally dependent or nearly so on
the executive branch for safeguards information?

Mr, Anders. Indeed, much of the information associated with the
export licensing activities relates to the basic conduct of our foreign
relations in this country. The XRC does not at the present have the
kinds of mechanisms required to directly gather information related
to such considerations. We are reliant to a large degree on infor-
mation developed by various components of the executive branch.
Though we would not go strictly on the information provided us.

We feel it is our responsibility under present law — the Reorganiza-
tion Act, under the act of 1974, which this committee sponsored —
to make an independent assessment, to aggregate this assessment, and
draw our own conclusions as best we can.

Senator Glenn. I know in areas of policy, overall international
foreign policy matters, that obviously you are dependent on infor-
mation from other people, and we would not expect the NRC to come
up with their own in-house State Department, in effect. But how
about the technical area — the bodies to do the technical work in-
volved? I believe past testimony has indicated that you felt, and
probably other people also felt, that this was not an in-house capa-
bility you now have, and you are more dependent than you would
like to be as an independent agency on ERDA for their technical
expertise.



91

Would you comment on that?

Mr. Anders. This committee, in establishing the Nuclear Regula-
tory Commission and ERDA. clearly focused on the area of new and
developing concerns relating to the questions of safeguarding the
nuclear material.

You did this by establishing a separate and specific organization
of nuclear materials safety and safeguards within XRC, with specific
responsibilities which would not only be concerned with licensing
but also would be the general focal point for all safeguard considera-
tions, policy and technical review.

Quite frankly we have not been able to bring in this activity up to
a level of staffing overnight which we think would be required for
the future.

We have requests before the Congress — before different committees
than this one — ones who might have a somewhat different view of
this activity and resources required.

Indeed, we feel that the resources are adequate to do this sort of
job an ad hoc basis at present. But, not enough to really get ahead
and look forward to outlining a fully rational procedure for the
future in the area of safeguards for this country internally, and
relating to our international responsibilities under the law.

Senator Glenn. I obviously was not on the committee when some
of these decisions were being made last year, and I am sure Chair-
man Ribicoff will be able to clarify some of these things for us. But
in addition to testimony that has already been given, it has been my
impression from studying some of these things that I heard here,
that the XRC was set up, that these safeguards and other regulatory
functions were split from the AEC, with the idea that they would
be a completely separate and, as much as possible, handled autono-
mously, with your own in-house capability to make decisions, with-
out having to rely on the executive branch of the Government for
whatever information might or might not be given to XRC, as times
and people change.

I am sure there has been a fine working relationship between you
and EDRA up to this time, and the personal relationship between
the people heading the groups there, might have something to do
with that.

What we are interested in also is setting up the proper facilities
within each organization to do its job, quite apart from whether there
was a close personal relationship there or not. I think that is a prime
consideration.

Mr. Anders. Senator, quite frankly, I would not want a responsi-
bility like issuing export or import licensing, as important as it is,
if it is strictly a rubberstamp operation.

Senator Glenn. In the South African development of potential
new spray nozzle process for enriching uranium, as well as some of
the other fuel-cycle techniques that are talked about these days —
laser, and so forth — with regard to uranium enrichment, do you
think we need to redirect or have a bigger safeguards capability than
just the plutonium reprocessing, or uranium enrichment processes,
that we have talked about so far?

In other words, we have talked mostly about security with respect
to the handling of plutonium. and now we begin to see on the horizon



92

whole new technilogical processes that provide new means of pro-
ducing nuclear fuel and explosive materials. What I would like to
know is whether these safeguards processes are adequate, or will we
have to have a whole new area of capability of research to keep up
with and control these new processes ?

That is a rather involved question, but I think you get the gist of
what I mean.

Mr. Anders. I think I get the flavor of it.

The technology of various enrichment schemes or processes, is the
purview of the Energy Research and Development Administration,
and, quite frankly, I am not well grounded in that area.

You mentioned plutonium recycling, that is a question that is be-
fore the Nuclear Regulatory Commission at this time. We have not
reached our conclusion. Here we must operate in a judicial posture,
and it would be inappropriate for me to suggest how we might come
out on that one way or the other. But, certainly if the finding is
positive, that is, in favor of recycling, it would have to be contingent
upon an adequate set of domestic safeguards. With regard to inter-
national nuclear power, questions any interaction that the United
States might have, vis-a-vis the export of material or technology trans-
fer, is essentially the same kind of considerations would have to apply.
Senator Glenn. There have been some questions raised as to
whether, under the Export Reorganization Act, whether this would
improperly authorize NRC to withhold a nuclear export license that
is favored' by the President. That is a very politically sensitive area,
obviously. Would you care to comment on that?

What if it came down to something that might be advantageous
in the foreign policy context, and yet you felt that there were not
adequate safeguards. That would be a tough call, I am sure, but what
would be your policy on that?

Mr. Anders. Senator, I am not a constitutional lawver, but it seems
to me, and to the Commission, that the Energy Reorganization Act
of 1974, does give final responsibility and authority for issuing ex-
port licenses to the NRC and, under the law, we have to implement
our responsibilities accordingly.

Chairman Ribicoff. Will the Senator yield?
Senator Glenn. Yes, certainly.

Chairman Ribicoff. I think Senator Glenn makes a very important
point. We have run into this, especially over the years in trade legis-
lation, where Congress has found time and time again that the State
Department would subordinate American trade matters, economic
matters to their geo-political concerns — to the disadvantage of the
United States. And we have tried to write into the 1974 trade act
some safeguards against the dominance of the State Department, and
in all due respect of the State Department, they are not all wise in
many of these fields. Nevertheless there has been a tendency on the
part of all other Government agencies to defer to the State Depart-
ment.

Now, what I believe, Senator Glenn is expressing his concern on
policy matters ; should the State Department take a position contrary
to yours, would you defer to them because they felt some inter-



93

national relations that they had in mind mitigated toward giving
a nuclear export license? I am curious as to how you would react to
that,

Mr. Anders. In the process as I envision it it now, and, this will
be put to work in the near future, it is quite conceivable that at least
in the initial round of interaction between us and executive branch
there may be some difference of opinion, or lack of information that
we would feel necessary, concerning adequacy of safeguards or of
another country's intent with regard to nuclear weapons develop-
ment.

"We may well have to go back and request additional information.
I would suspect that in that process, our views or inclinations would
be able to be read by those who we are dealing with in the executive
branch, which may or may not influence their particular view, but it
could. I think that in the final analysis confrontation would be the ex-
ception rather than the rule, but if it came to that, then the Energy
Reorganization Act. as I read it, and as my colleagues read it, gives
XRC the responsibility to make the final decision.

Chairman Ribicoff. What is important from my experience with
the executive branch, and the legislative branch, is that men of
capacity and ability use their capacity, ability and knowledge, and
not always defer to somebody else who may not have their knowledge
and experience, whether it be in the White House or in some other
branch of Executive Government.

I think there is an inclination that most people in the executive
branch do compromise their intellectual integrity to defer to a tele-
phone call from somebody down at the White House who cannot hold
their briefcase when it comes to nuclear problems or someone in the
State Department who does not have their knowledge or backup.
It becomes very important in a matter of such grave importance as
to how you discharge your responsibility. I am glad that Senator
Glenn opened this up, because this becomes a matter of great serious-
ness.

Mr. Anders. Senator, I just read the law that we are suppose to
operate under a law that was passed by the Congress, and signed by
the President, and it tells me quite clearly what my duties are.

Chairman Ribicoff. Let me ask you this followup question, what
would you do if you come to a decision that a license should or should
not be granted, or a safeguard would not be adequate, and you got a
call from some kid down at the White- House — and I use that word
"kid" advisedly — or somebody at the State Department that tells you
to the contrary?

Mr. Anders. We would have to operate under our own judgment,
Senator. We have come to the conclusion at the Commission, that if
we determine that an export license request is not appropriate, that
would be our decision.

Chairman Ribicoff. I would hope you would carry it out. I think
there is no reason to have the conflict, but I think many of the prob-
lems we have domestically, and internationally, is the unwillingness
for men of ability and intellect to go to the mat on some of these
basic issues.

I am not talking about the usual housekeeping problems, but
some basic policy questions.



94

Mr. Anders. Now, as to the country's international relations, we
will not be capable of making a broader policy assessment relating
to other things that nuclear export would only be a small part of.

Indeed such foreign policy determinations are the job of the
President, as I see it. But, as the law is written today it gives the
responsibility to the Nuclear Regulatory Commission. Therefore,
we must make a substantive finding.

Chairman Ribicoff. Well, from my standpoint, as we set up this
agency, this was our intent; and I would hope that you would keep
that in mind — that that is your charter under which you work — and
not to hesitate to take your position and hold it.

Senator Glenn. I think in a bigger context, one discussing what
is being proposed with this bill, I think it was sort of in a context
as being a check and balance, which is inherent in our whole system,
or it is supposed to be, and this would present, it would perhaps be
a safeguard of our own, of our own constitutional system really, of
a President going to a foreign country, and just promising a nuclear
plant without adequate safeguards, as we have had a little bit of
experience within the past few years.

So, in a way it is a check and balance, and my original question
was along the line of whether you have the means right now to do
that independently, with independent judgment, quite apart from
being dependent on the executive branch or ERDA, which might
be under duress from a Presidential directive, more so than you would
be as an independent agency. That was our concern in putting this
bill in : to preserve the function of checks and balances.

Chairman Ribicoff. I have a bill that I have to handle on the
floor at 10:45 this morning, so if you will pardon me, I have some
questions, and, Senator Glenn, you may ask them for me.
Senator Glenn. Thank you, Senator Ribicoff.
I have gone over my time. I did not realize Senator Ribicoff
had to leave, but I will ask the questions prepared here at a later
time period. We have gone over our time here.
The Senator from Illinois.

Senator Percy. Did you wish to say something, Mr. Anders ?
Mr. Anders. I just wanted to respond to the point that Senator
Glenn was making as to checks and balances. The export and import
license is a long way down the trail on various agreements with
other nations.

By the time we receive a license request there is a lot of water
that has gone over the dam, so to speak.

The responsibility for developing agreements of cooperation be-
tween other countries is within the executive branch as specified
by Congress. These agreements, I believe, are part of our Nation's
foreign policy are sent to Congress for review, as are the amendments.
So, by the time the NRC receives a specific request for a license
it seems to me that the intent of the Government has been generally
indicated.

Senator Glenn. I would not anticipate, though, that the executive
branch of Government would be doing their negotiating in a vacuum,
without consulting you and keeping you informed as to what is
going on as negotiations are in progress.



95

You pointed out your function and this actually comes a long
way down in the process for final approval of the licensing, but I
would think that it would be absolutely foolish for anyone to bring
a license negotiation clear to that point, without you being kept
informed all along the way of what was going on, so that they had
a pretty good idea of whether you were going to approve or disap-
prove that license.

You would have the final authority, that is true, but certainly
no one would be foolish enough to take license negotiations clearly
down to that point without having a clear indication of whether
you plan to approve or disapprove.

Mr. Anders. I am pleased to say we have received a letter recently
from Dr Kissinger, requesting the Nuclear Regulatory Commission
to become more involved in those areas. I would be pleased to submit