[Federal Register Volume 78, Number 105 (Friday, May 31, 2013)]
[Notices]
[Pages 32640-32643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12694]


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DEPARTMENT OF ENERGY


Proposed Subsequent Arrangement

AGENCY: Office of Nonproliferation and International Security, 
Department of Energy.

ACTION: Proposed Subsequent Arrangement.

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SUMMARY: The Department is providing notice of a proposed agreement 
between the Government of the United States of America and the 
Government of the Republic of Korea that is being processed as a 
subsequent arrangement.

DATES: This subsequent arrangement will take effect no sooner than June 
17, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. Sean Oehlbert, Office of 
Nonproliferation and International Security, National Nuclear Security 
Administration, Department of Energy. Telephone: 202-586-3806 or email: 
[email protected].

SUPPLEMENTARY INFORMATION: The agreement being processed as a 
subsequent arrangement is the proposed Agreement between the Government 
of the United States of America and the Government of the Republic of 
Korea Relating to the Transfer of Certain Nuclear Technologies in the 
Course of the Joint Fuel Cycle Study (the Agreement) being conducted by 
authorized technical experts from the United States of America and the 
Republic of Korea (ROK). The Joint Fuel Cycle Study (JFCS) will explore 
the technical and economic feasibility and the nonproliferation 
acceptability of the electrochemical recycling process and of other 
spent fuel management options. The purpose of the Agreement is to 
establish legal procedures and controls governing the transfer of 
technologies under the course of the JFCS that are necessary for its 
successful completion.
    The U.S. Government has concluded that electrochemical recycling 
technology as defined in the Agreement is sensitive nuclear technology 
(SNT) within the meaning of Section 4(a)(5) of the Nuclear Non-
Proliferation Act of 1978 (22 USC 3203(a)(5)), and that the transfer of 
such technology to the ROK is necessary for the successful completion 
of the JFCS. Sections 127 and 128 of the Atomic Energy Act of 1954, as 
amended (AEA), impose certain requirements on the export of SNT. In 
order to meet those requirements and proceed with the transfer of SNT 
as part of this cooperation, the U.S. Government must obtain the ROK 
government's agreement to conditions on the transferred SNT and any 
nuclear material or equipment produced through its use. The Agreement 
was explicitly developed to meet the requirements of AEA Sections 127 
and 128 regarding the transfer of SNT to the ROK and contains all the 
terms and conditions required therein.
    The Agreement would impose reciprocal obligations on both the U.S. 
Government and the ROK government regarding all technology transferred 
under the Agreement, including SNT, except insofar as the Agreement 
reflects the different obligations of the two governments under their 
respective safeguards agreements with the International Atomic Energy 
Agency (IAEA).
    Although the Agreement would not be concluded pursuant to an 
agreement for nuclear cooperation entered into pursuant to Section 123 
of the AEA, the results of the collaboration eventually may be 
applicable to spent nuclear fuel

[[Page 32641]]

in the ROK that is subject to the Agreement for Cooperation Between the 
Government of the United States of America and the Government of the 
Republic of Korea Concerning Civil Uses of Atomic Energy, signed at 
Washington November 24, 1972, as amended, or a successor agreement. 
Moreover, as noted above, the U.S. Government considers electrochemical 
recycling technology, as defined in the Agreement, to be SNT under U.S. 
law, as it constitutes information not available to the public that is 
important to the design, construction, fabrication, operation or 
maintenance of a nuclear fuel reprocessing facility. Taking these 
factors into account, the Department of Energy and the Department of 
State have concluded that it would be appropriate to follow the 
consultation and review procedures in AEA Section 131a. concerning 
subsequent arrangements prior to entering into the Agreement and for 
the Department of State to prepare a Nuclear Proliferation Assessment 
Statement.
    As provided in Section 131a. of the Atomic Energy Act of 1954, as 
amended, I have determined that this subsequent arrangement will not be 
inimical to the common defense and security. In reaching this 
determination, all relevant factors were considered, including the 
Nuclear Proliferation Assessment Statement provided by the Department 
of State.

    Dated: May 14, 2013.
Daniel B. Poneman,
Acting Secretary of Energy.

Agreement Between the Government of the United States of America and 
the Government of the Republic of Korea Relating to the Transfer of 
Certain Nuclear Technologies in the Course of the Joint Fuel Cycle 
Study

    The Department of State refers the Embassy of the Republic of Korea 
to the collaboration between the Government of the United States of 
America (United States) and the Government of the Republic of Korea 
(ROK) considering the technical, economic, and nonproliferation aspects 
of spent fuel management technologies in the course of the Joint Fuel 
Cycle Study undertaken by our two governments beginning in April 2011 
(such collaboration being hereinafter referred to as the 
``Collaboration''). The Department of State proposes the following 
agreement (the ``Agreement'') with respect to the transfer of the 
technologies described in Section I (2) below between the United States 
and the ROK in connection with the Collaboration:
    I. For purposes of this Agreement, the following terms shall have 
the following meanings:
    1. ``Parties'' shall mean the Government of the United States of 
America and the Government of the Republic of Korea.
    2. ``Technologies'' (hereinafter referred to in whole or in part in 
this Agreement as the ``technologies'') shall mean the following:
    (a) Electrochemical recycling technology; and
    (b) Any other technology that the Parties agree in writing to make 
subject to the provisions of this Agreement in connection with the 
Collaboration.
    The term ``technologies'' does not include information that is in 
the public domain. Technologies may be in tangible form (such as a 
model, prototype, blueprint, operation manual, electronically stored 
data), or intangible form (such as technical services), and shall 
include information or data incorporated in equipment.
    3. ``Electrochemical recycling technology'' shall mean all 
information on research, development, and design of all process steps 
and major critical components of electrochemical recycling (also known 
as pyroprocessing). For purposes of this Agreement, electrochemical 
recycling technology shall not include information on the pretreatment 
and oxide to metal electro-reduction steps in which transuranics are 
not capable of being separated.
    4. ``Transferred Technologies'' shall mean any technologies (as 
defined in Section I (2) above) transferred between the Parties in 
accordance with Section IV of this Agreement in the course of the 
Collaboration at any time after entry into force of this Agreement, and 
shall include both the technologies as originally transferred and the 
technologies as modified or melded with other technology either through 
joint collaboration between the United States and the ROK or by either 
the United States or the Republic of Korea without participation of the 
other. Transfers of and cooperation on technologies subject to this 
Agreement may be undertaken directly between the Parties or through 
their Executive Agents or through authorized Persons, and may be 
accomplished through various means, including reports, data banks, 
computer programs, meetings, visits, and assignments of staff to 
facilities. Transfers of any technologies made in accordance with 
Section IV of this Agreement by one Party to individuals, wherever 
located, who are authorized by the other Party to receive information 
in the course of the Collaboration shall be deemed to be transfers to 
the authorizing country for purposes of this Agreement.
    5. ``Equipment'' shall mean any installation, facility, system, 
device, substance or any other item other than nuclear material 
(including an especially designed component of any of the foregoing) 
that either Party has determined to be capable of making use of special 
nuclear material or of significance for nuclear explosive purposes.
    6. ``Nuclear material'' shall mean (a) ``source material,'' namely, 
uranium containing the mixture of isotopes occurring in nature; uranium 
depleted in the isotope 235; thorium; any of the foregoing in the form 
of metal, alloy, chemical compound, or concentrate; any other substance 
containing one or more of the foregoing in such concentration as may be 
agreed to by the Parties; and (b) ``special nuclear material,'' namely, 
plutonium, uranium 233, uranium enriched in the isotope 233 or 235; any 
substance containing one or more of the foregoing; and such other 
substance as may be agreed to by the Parties.
    7. ``Produce,'' when used in relation to special nuclear material, 
shall mean (a) to manufacture, make, produce, or refine special nuclear 
material; (b) to separate special nuclear material from other 
substances in which such material may be contained; or (c) to make or 
to produce new special nuclear material.
    8. ``Executive Agents'' shall mean the Department of Energy for the 
United States and the Ministry of Education, Science and Technology for 
the Republic of Korea.
    9. ``Information in the public domain'' shall mean information that 
has been made available without restrictions on its further 
dissemination. Copyright restrictions do not remove information from 
being in the public domain.
    10. ``Person'' shall mean any individual or any entity subject to 
the jurisdiction of either Party but does not include the Parties to 
this Agreement.
    II. The Parties agree to the following requirements, provided that 
these requirements shall not apply to a Party with respect to specific 
technologies developed solely by that Party and transferred by it to 
the other Party.
    1. Safeguards.
    (a) International Atomic Energy Agency (IAEA) safeguards as 
required by Article III (2) of the Treaty on the Non-Proliferation of 
Nuclear Weapons done at Washington, London, and Moscow on July 1, 1968 
(NPT) shall be applied to any nuclear material within the territory or 
under the jurisdiction or control anywhere of the ROK used in or

[[Page 32642]]

produced by or through the use of Transferred Technologies, including, 
but not limited to, nuclear material used in or produced by or through 
the use of equipment produced or constructed by or through the use of 
Transferred Technologies.
    (b) IAEA safeguards shall be maintained with respect to all 
peaceful nuclear activities in, under the jurisdiction of, or carried 
out under the control anywhere of the ROK.
    (c) Implementation of the Agreement between the Government of the 
Republic of Korea and the International Atomic Energy Agency for the 
application of safeguards in connection with the NPT, signed on October 
31, 1975, which entered into force on November 14, 1975, and the 
Additional Protocol thereto, which entered into force on February 19, 
2004, shall be considered to fulfill the requirements in paragraphs (a) 
and (b) of this Section II (1).
    (d) Any nuclear material within the territory or under the 
jurisdiction or control anywhere of the United States of America used 
in or produced by or through the use of Transferred Technologies, 
including, but not limited to, nuclear material used in or produced by 
or through the use of equipment produced or constructed by or through 
the use of Transferred Technologies, shall be subject to the agreement 
between the United States of America and the IAEA for the application 
of safeguards in the United States of America, signed on November 18, 
1977, and entered into force on December 9, 1980, and the Additional 
Protocol thereto, which entered into force on January 6, 2009.
    (e) In the event that the IAEA safeguards agreement referred to in 
paragraph (c) of this Section II (1) is not being applied, the ROK 
shall enter into an agreement with the IAEA for the application of 
safeguards which provides for effectiveness and coverage equivalent to 
that provided by the safeguards agreement required by paragraph (c) or, 
if that is not possible, the Parties shall immediately establish 
safeguards arrangements for the application of safeguards which provide 
for effectiveness and coverage equivalent to that provided by the 
safeguards agreement required by paragraph (c).
    (f) In the event that the IAEA safeguards agreement referred to in 
paragraph (d) of this Section II (1) is not being applied, the United 
States shall enter into an agreement with the IAEA for the application 
of safeguards which provides for effectiveness and coverage equivalent 
to that provided by the safeguards agreement required by paragraph (d), 
or if that is not possible, the Parties shall immediately establish 
safeguards arrangements for the application of safeguards which provide 
for effectiveness and coverage equivalent to that provided by the 
safeguards agreement required by paragraph (d).
    2. Peaceful Use.
    Transferred Technologies, any nuclear material or equipment 
produced or constructed under the jurisdiction or control of either the 
United States or the ROK by or through the use of Transferred 
Technologies, including, but not limited to, nuclear material used in 
or produced through the use of equipment produced or constructed by or 
through the use of Transferred Technologies, shall not be used for any 
nuclear explosive device or for research on or development of any 
nuclear explosive device or for any other military purpose.
    3. Physical Protection.
    (a) All necessary measures shall be maintained to ensure adequate 
protection of Transferred Technologies against loss, theft, or 
unauthorized access.
    (b) Adequate physical protection shall be maintained with respect 
to any nuclear material and equipment produced or constructed by or 
through the use of Transferred Technologies, including, but not limited 
to, nuclear material used in or produced through the use of equipment 
produced or constructed by or through the use of Transferred 
Technologies. To fulfill this requirement, such physical protection 
measures shall provide levels of protection at least equivalent to (i) 
the recommendations published in the IAEA document INFCIRC/225/Rev.4, 
``The Physical Protection of Nuclear Material and Nuclear Facilities,'' 
and in any subsequent revision thereto accepted by both Parties, and 
(ii) the provisions of the Convention on the Physical Protection of 
Nuclear Material, adopted at Vienna October 26, 1979, and any 
amendments to the Convention that enter into force for both Parties.
    4. Retransfer.
    Transferred Technologies, and nuclear material and equipment 
produced or constructed under the jurisdiction or control of the 
recipient Party by or through the use of Transferred Technologies, 
including, but not limited to, nuclear material used in or produced 
through the use of equipment produced or constructed by or through the 
use of Transferred Technologies, shall not be transferred to 
unauthorized Persons or beyond the territory, jurisdiction or control 
of either the United States or the ROK (except to each other) unless 
the Parties agree, and unless the proposed recipient nation or nations 
provide assurances to the Parties that the proposed retransfer of 
technologies shall be subject to conditions equivalent to those set 
forth in Sections I-II, V, and X of this Agreement with respect to the 
transfer of the technologies.
    5. Reprocessing and Other Alteration in Form or Content.
    (a) In light of the fact that this Agreement covers transfers of 
technologies for research and development, Transferred Technologies, 
and any equipment produced or constructed under the jurisdiction or 
control of either Party by or through the use of Transferred 
Technologies, shall be used solely for research and development 
purposes, and shall not be used to reprocess or otherwise alter in form 
or content any irradiated nuclear material within the territory or 
under the jurisdiction or control of either Party, unless the Parties 
agree. The Parties note that continuation of the research and 
development envisioned by the Collaboration may at some time in the 
future involve alteration in form or content of nuclear material. The 
Parties agree, therefore, to review at an appropriate time the issue of 
consent to alteration in form or content to support continued research 
and development in the Collaboration, and recognize that granting any 
such consent will be subject to compliance with any necessary domestic 
legal requirements of the Party granting the consent.
    (b) No nuclear material produced by or through the use of 
Transferred Technologies, including, but not limited to, nuclear 
material used in or produced through the use of equipment produced or 
constructed by or through the use of Transferred Technologies, shall be 
reprocessed, and no irradiated fuel elements containing such material 
removed from a reactor shall be altered in form or content, except by 
irradiation or further irradiation, unless the Parties agree.
    (c) The requirements set forth in paragraphs (a) and (b) of this 
Section II (5) for agreement of the Parties in order for the activities 
described therein to take place shall be deemed satisfied with respect 
to a particular facility if the Parties agree, in a separate agreement 
between them, on reprocessing or alteration in form or content of 
nuclear material in that facility.
    III. By written notice to the other Party, each Party may add 
additional Executive Agents or change its Executive Agent(s).

[[Page 32643]]

    IV. Prior to transfer of any technologies intended to be subject to 
this Agreement, the transferring Party, through its Executive Agent, 
shall notify the other Party, through its Executive Agent, in writing 
of the proposed transfer, together with a summary description of the 
specific technologies to be transferred. Technologies proposed to be 
transferred from one Party to the other in the course of the 
Collaboration shall not be subject to this Agreement unless the 
recipient Party, through its Executive Agent, notifies the transferring 
Party in writing, through its Executive Agent, prior to the transfer, 
that it consents to receive the specific technologies and confirms that 
the Transferred Technologies, upon receipt, shall be subject to the 
terms and conditions set forth herein. Either Party shall have the 
right not to accept a proposed transfer of technologies under this 
Agreement.
    V. Each Party shall maintain an inventory of the technologies 
transferred to the other Party pursuant to the Collaboration, and shall 
provide an annual report to the other Party of the technologies 
transferred to the other Party pursuant to the Collaboration. Each 
Party shall provide an annual report to the other Party of all 
Transferred Technologies it holds pursuant to the Collaboration 
(including, but not limited to, technologies modified or melded with 
other technology by the recipient Party through the use of Transferred 
Technologies), of all its nuclear material and equipment produced or 
constructed through the use of Transferred Technologies, and of all its 
nuclear material used in or produced through the use of equipment 
produced or constructed by or through the use of Transferred 
Technologies. The Executive Agents may establish arrangements for the 
notification of transfers, the annual reports and inventories.
    VI. If any question arises concerning the interpretation or 
application of this Agreement, the Parties shall, at the request of 
either of them, consult with each other. Any dispute between the 
Parties regarding interpretation or implementation of this Agreement 
shall be promptly negotiated by the Parties with a view to resolving 
that dispute, and may be addressed through diplomatic channels or any 
other peaceful means of settlement of disputes agreed to by the 
Parties.
    VII. The terms of this Agreement shall be implemented in good faith 
and in a manner designed to avoid undue interference in the execution 
of the Joint Fuel Cycle Study, and with due regard to the long-term 
requirements of the nuclear energy programs in place in the United 
States and the Republic of Korea, in order to promote the peaceful uses 
of nuclear energy.
    VIII. Except as otherwise provided in Section II (5) (c) of this 
Agreement, the provisions of this Agreement are in addition to and 
shall not supersede the provisions of the Agreement for Cooperation 
Between the Government of the Republic of Korea and the Government of 
the United States of America Concerning Civil Uses of Atomic Energy, 
signed on November 24, 1972, as amended on June 26, 1974, or any other 
agreement between the Parties establishing conditions relating to the 
transfer of nuclear material or equipment from the territory of one 
Party to the territory of the other Party, whether directly or through 
a third country.
    IX. This Agreement shall remain in force for a period of 20 years. 
This term may be extended for such additional periods as may be agreed 
in writing by the Parties. Either Party may terminate this Agreement 
before its expiration date by notifying the other in writing through 
diplomatic channels of its intention at least one (1) year prior to the 
intended date of such termination.
    X. Notwithstanding the termination or expiration of this Agreement, 
Sections I-II, V and X of this Agreement shall continue to apply so 
long as any Transferred Technologies or nuclear material or equipment 
subject to those Sections remains within the territory of the United 
States or the ROK, whichever is concerned, or under its jurisdiction or 
control anywhere, or until such time as the Parties agree:
    1. with respect to such nuclear material or equipment, that it is 
no longer usable for any nuclear activity relevant from the point of 
view of safeguards, or
    2. with respect to any of the Transferred Technologies, that such 
specific Transferred Technologies shall no longer be subject to this 
Agreement.
    Within 60 days of a request by either Party at any time during the 
term of this Agreement or upon the expiration or termination of this 
Agreement or the Collaboration, the Parties shall commence 
consultations, which the Parties shall complete no later than 180 days 
from the request of either Party, to determine whether any specific 
technologies within the definition of Transferred Technologies under 
this Agreement can be removed from the coverage of this Agreement, and 
if the Parties so agree, the identified technologies shall no longer be 
subject to this Agreement.
    If these proposals are acceptable to the Government of the ROK, it 
is further proposed that this Note, together with the Embassy's 
affirmative Note in reply on behalf of the Government of the ROK, shall 
constitute an agreement between the two governments, which shall enter 
into force on the date of the second note in a later exchange of notes 
between the two governments indicating that each has completed its 
internal steps necessary for entry into force.
    Department of State.

[FR Doc. 2013-12694 Filed 5-30-13; 8:45 am]
BILLING CODE 6450-01-P