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POLICY ISSUE
INFORMATION

SECY-00-0152

July 12, 2000

• PURPOSE:
• BACKGROUND:
• DISCUSSION:
• COORDINATION:

PURPOSE:

To advise the Commission of the status of OIP-administered Arrangements and Letters of Agreement with other countries.

BACKGROUND:

Since May 1974, NRC (originally AEC-Regulation) has engaged in what has become a broad-scale program of developing and implementing nuclear safety information exchange and general cooperation Arrangements with our counterparts in other countries. Originally designed to assure that the operational experience of countries with major commitments to LWR technology was available to the staff, the program was later expanded to include countries with small nuclear power programs, as well as some of those about to enter the nuclear field. The number of NRC technical information exchange Arrangements and Letters of Agreement considered to be in effect now stands at 35.

NRC's information exchange Arrangements serve as communications channels with foreign regulatory authorities, establishing the framework for NRC to gain access to non-U.S. safety information which can alert us to potential safety problems, help us identify possible accident precursors, and provide accident and incident analyses, including lessons learned, which could be directly applicable to the safety of U.S. nuclear power plants and other facilities. They also serve as vehicles for the health and safety assistance NRC supplies to less-developed countries in their attempts to prevent accidents and to develop and improve their regulatory capabilities and their nuclear safety infrastructure. Thus, the Arrangements facilitate NRC's strategic goal to support U.S. interests in the safe and secure use of nuclear materials and in nuclear nonproliferation both at home and abroad.

DISCUSSION:

Five to eight of NRC's information exchange Arrangements typically come up for renewal each year. Most of these renewals are fairly routine. For 2000, scheduled renewals include Germany, the Republic of Korea, and Spain. In addition, renewals of the Arrangements with the Czech and Slovak Republics and Lithuania, which expired in 1999, are expected to be completed this year, as well as a new Arrangement (approved by the Commission last year) with Romania. Plans are for the Chairman to sign these on the margins of the IAEA General Conference in Vienna this September.

The renewal of the Arrangement with Sweden, which technically expired in December 1999, remains under negotiation. The Swedish Nuclear Power Inspectorate (SKI) has proposed an abbreviated text that eliminates several provisions necessary to NRC. The staff is drafting a revised proposal which will attempt to accommodate the SKI's desire for a shortened text, but which reinstates those elements needed to meet NRC's requirements.

Attachment 1 is a list of OIP-administered Arrangements, alphabetized by country, which indicates, among other things, the partner organizations, the dates the Arrangements were first signed and last renewed, and the date of the next scheduled renewal. This list will be updated and provided to the Commission semi-annually.

For those interested in additional information about the Arrangement program, Attachment 2 is a detailed discussion of the renewal (and initial) Arrangement process and Attachment 3 is a list of definitions pertaining to the process.

COORDINATION:

The EDO, NMSS, RES, and NRR concur in this paper. OGC has no legal objection. The Office of the Chief Financial Officer has reviewed this Commission paper for resource implications and has no objections.

ATTACHMENT 1

OIP Administered Arrangements

ATTACHMENT 2

THE RENEWAL (AND INITIAL) ARRANGEMENT PROCESS

• Initial Steps to Agreed Text
• Signings
• Commission Notification
• Coordination with the Executive and Legislative Branches
• Duration
• Resource Commitment

Initial Steps to Agreed Text

The OIP staff drafts and secures OGC and RES concurrence on a renewal proposal which incorporates all of the provisions added/modified by NRC or the Executive Branch since the last signature. Typically, this draft is then forwarded by either the staff or the OIP Director simultaneously to the partner country for review and comment and to the Executive Branch for clearance. Most of the time, only minor changes are requested or required by either, so little negotiation is necessary to reach an agreed signature text.

Signings

The staff then determines whether the partner country is planning to visit NRC in the foreseeable future. If so, the staff normally works with the partner country to set up a signing ceremony with the Chairman as head of the agency and as Chief Administrative Officer as one item of business to be accomplished during the visit. If not, and there is no planned travel to the country by the Chairman, the OIP staff normally works with the partner country and with our IAEA resident representative to arrange for the Chairman to meet with the partner and to sign the renewal Arrangement on the margins of the IAEA General Conference in Vienna, usually scheduled each year at the end of September.

Commission Notification

The staff must, before signature of any international Arrangement (or renewal thereof), advise the Commission of the approaching Arrangement and call to its attention any significant deviation(s) from the norm. The staff relies on an information item in the Commission's Weekly Items of Interest to carry out this requirement, since directed to do so by the EDO's office in the late 1980's. (This was an EDO response to the Reduction-in-Paperwork Act. OIP had previously forwarded a paper to the Commission, with the Arrangement to be concluded attached, before each Arrangement signing.)

In those cases where a new Arrangement is under discussion or a partner or particular provisions of an Arrangement may be considered unusual or controversial, the OIP staff prepares and forwards a paper to the Commission, pointing out policy considerations or special circumstances and recommending a course of action.

The OIP staff also alerts the Commission when significant problems are encountered, such as when the Arrangement program drew to a six-month halt in late1990 - early 1991 when the Executive Branch began requiring the use of "new" and tighter intellectual property rights (IPR) language in all U.S. agency international science and technology agreements. The staff, after two rounds of consultations with the U.S. Trade Representative, Commerce, the Office of Science and Technology Policy, and State, convinced the Executive Branch that NRC's IPR coverage was adequate to its needs and was allowed to continue with an only-slightly-revised version of one of the texts already in use. Most of NRC's partners were able to accept this slight revision as soon as it was proposed. However, several partners such as Japan, Germany, the United Kingdom, and Canada did not complete renewals for 2-5 years, until country-specific IPR provisions (which NRC then incorporated into the Arrangements with them) were worked out government-to-government. France remains an "outlier" to this day, unwilling to accept the need for any IPR provisions in the agency-to-agency Arrangement although specific U.S.-French IPR provisions have been developed. (Because it is such an important "partner," the staff has continued to exchange information and to cooperate closely with France, although a formal Arrangement has not been in effect since 1995.)

Coordination with the Executive and Legislative Branches

All international arrangements must be cleared with the Executive Branch before signature. OIP, working through the Office of Nuclear Energy Affairs of the Bureau of Nonproliferation, Department of State, secures required U.S. interagency approvals for all NRC international agreements before their signature (through the Circular 175A authorization process). OIP also works with the DOS Division of Language Services to verify for textual authenticity any version of the Arrangement to be signed in the language of the partner country. Finally, to comply with the Case-Zablocki Act, OIP must notify the Congress, through the Treaty Affairs Office at the Department of State, of all NRC international Arrangements within 60 days of their entry-into-force. (NRC has 20 days to complete its part of this process.)

Duration

The Commission reaffirmed in 1980 that NRC's international Arrangements should all be written for periods not to exceed five years, but could be extended for additional five-year periods by mutual written consent. The Commission decided that this duration permitted timely review of all terms and, where necessary, revision to reflect significant changes in U.S. and agency policy.

Resource Commitment

It should be noted that, although they are intentionally written broadly enough to cover any nuclear safety cooperation that the partners might agree to undertake, the information exchange Arrangements typically commit NRC only to the exchange of documents and information, including early advice of important events which are of immediate interest. All other cooperative activities mentioned (such as confirmatory safety research, training and assignments, and additional safety advice) are to be considered on a case-by-case basis, are to be the subject of a separate agreement, or are offered with the caveat that they "may" be provided and always within the limits of available resources.

ATTACHMENT 3

DEFINITIONS PERTAINING TO THE ARRANGEMENT PROCESS

The Department of State (DOS) proffers a long and complex definition of an "international agreement other than a treaty" (which enters into force only after Senate advice and consent). In the part that pertains most closely for purposes of NRC, an "international agreement or Arrangement" is a binding undertaking between two or more governments or agencies of those governments covering the areas of information exchange, general cooperation, and/or research collaboration, which meets the following additional criteria:

1. It must be governed by international law and not by the domestic laws of any of the parties.
2. It must be signed by parties which have the authority to bind their governments or governmental agencies in international agreements.
3. It must be a primary or umbrella agreement - not an "implementing Agreement" which was clearly anticipated in a prior, more broadly-based agreement.

Although it would appear that many of NRC's Arrangements and Letters of Agreement do not meet all of the above-mentioned criteria, DOS has reserved for itself the right to make such determinations. All proposed NRC Arrangements and Letters of Agreement which are clearly not implementing agreements are therefore submitted to the DOS for review. DOS has historically treated most of NRC's Arrangements and Letters of Agreement as "international agreements" which, as such, become subject to the Circular 175A authorization process.

A "Letter of Agreement" is a less comprehensive (mini) information exchange Arrangement. It was developed by the staff primarily to accommodate countries considering the feasibility of or moving toward a nuclear power program which approached NRC about establishing a continuing relationship. The agreed exchange is limited to the materials safety and radiation protection areas, although documents in the reactor safety area may be provided upon specific request.

"Circular 175A" is the codification of DOS requirements and general guidelines on the negotiation, signature, publication, and registration of U.S. treaties and other international agreements.

The "Circular 175A authorization process" is the required procedure under which all proposed international arrangements and agreements must be submitted to DOS for coordination of U.S. interagency and in-house review and comment before the DOS issues a letter authorizing the agency to negotiate and/or proceed to signature with an agreement. The full process involves over 25 agencies and desks within DOS. (Except where circumstances obviously indicate otherwise, the DOS has traditionally allowed NRC to wait until negotiations are essentially complete and a text has been agreed to by the parties, since most of NRC's Arrangements and partners are non-controversial.) All identified questions and issues must be resolved before this letter is forwarded to the requesting agency and any substantive changes made subsequently must be cleared beforehand with DOS.

1. Although not the focus of this paper, it should be noted here that NRC's Office of Nuclear Regulatory Research administers an international research agreement program, to which OIP and OGC provide advice, on which they concur, and which OIP supports through the interagency review process. Many of these research agreements are now written as implementing agreements to the information exchange Arrangements, if the parties agree and if it will expedite the proposed cooperation. NRC's cooperative research program agreements currently number about 75. They usually call for contributions of funds or in-kind technical work and include provisions for the temporary assignment of personnel, the use of equipment and facilities in which research is being sponsored, and/or special services in exchange for input to the project direction and access to data as well as to the summary reports. The objectives of the cooperative research program are to share technical research information, to avoid duplication of effort, and to leverage limited resources by international participation in NRC's research programs as well as by NRC's participation in research programs conducted in other countries. Research agreements are typically negotiated and completed by mail, with the EDO signing for NRC as he was delegated authority to do in 1975.