Memorandum on Determination and Waiver of Romania's Ineligibility Under Section 129 of the Atomic Energy Act of 1954 To Receive Certain U.S. Nuclear Exports

Presidential Determination No. 93-36

Memorandum for the Secretary of State

Pursuant to section 129 of the Atomic Energy Act of 1954, as amended by the Nuclear Non-Proliferation Act of 1978 ( P.L. 95-242), I hereby determine that Romania has materially violated the Romania-IAEA safeguards agreement and the U.S.-IAEA-Romania supply agreement. I hereby further determine that cessation of exports as provided for by section 129 of the Act would be seriously prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security.

You are directed to report this Determination to the Congress and to provide copies of the Justification explaining the basis for this Determination. You are further directed to publish this Determination in the Federal Register.

WILLIAM J. CLINTON

THE WHITE HOUSE,

Washington, August 30, 1993.

Justification for the President's Determination

On April 29, 1992, the Government of Romania informed the IAEA Director General, and on April 30, 1992, the United States, that an inventory conducted earlier that month at the former Institute for Nuclear Power Reactors (INPR) at Pitesti, Romania, had disclosed two (2) milligrams of plutonium stored outside the facility's safeguards material balance area, in effect kept hidden from IAEA safeguards inspectors in violation of the Romania-IAEA safeguards agreement. According to the Romanian Government report, further internal investigation determined that in 1985 INPR personnel carried out laboratory-scale reprocessing of nuclear material in a single fuel rod clandestinely irradiated in Romania's U.S.-supplied TRIGA research reactor, which resulted in the separation of the two milligrams of plutonium. The report noted that the reprocessing activity was not declared (as required by the Romania-IAEA safeguards agreement) to the IAEA. It further stated that the reprocessing activity was evidently no longer performed after 1985, although the two milligrams of plutonium continued to be stored outside the safeguarded area until it was discovered in April 1992.

The current Government of Romania described the case as "a residue of the practices of the former totalitarian Communist regime" and a breach of domestic Romanian law as well as of Romania's international obligations. It stressed its own policy of strict compliance with all its nuclear nonproliferation obligations, in the spirit of which it said it had moved immediately to ensure full disclosure of the 1985 incident and had invited the IAEA to perform a special inspection. The IAEA in fact carried out such an inspection and confirmed the report of the present Government of Romania to the IAEA Board of Governors in June 1992.

Based on the current Romanian Government's own voluntary disclosures, it is clear that in 1985 and thereafter, subsequent to the effective date of the applicable U.S. statute, Romania materially violated an IAEA safeguards agreement within the meaning of section 129 of the Atomic Energy Act. (Inasmuch as the TRIGA reactor and the nuclear material used in the 1985 clandestine irradiation were supplied to Romania by the United States, Romania also violated it obligations to the United States under the trilateral U.S.-IAEA-Romania supply agreement, the agreement under which the TRIGA reactor and the nuclear material were transferred from the United States to Romania through the IAEA).

The President has therefore determined, pursuant to section 129 of the Atomic Energy Act of 1954, as amended by the Nuclear Non-Proliferation Act of 1978 ( Public Law 95-242), that Romania has materially violated an IAEA safeguards agreement and the U.S.-IAEA-Romania supply agreement.

Cessation of U.S. nuclear exports to Romania, however, would be seriously prejudicial to United States nonproliferation objectives and otherwise jeopardize the common defense and security. The violation occurred not merely under a different government, but under a very different form of government. The current Romanian Government initiated the investigation of its own accord, moved promptly to inform both the IAEA and the United States of the results (embarrassing and potentially damaging though they were), requested an immediate verification by IAEA inspectors, and has taken concrete steps to prevent any recurrence. It has strongly reaffirmed its intent to abide completely by its NPT and other international obligations with respect to nuclear nonproliferation. The present Romanian Government has demonstrated its commitment to a responsible nuclear export policy by joining the NPT Exporters Committee (Zangger Committee) and the Nuclear Supplies Group.

It is clearly in the U.S. interest to encourage other governments to take the same forthright steps that Romania has taken when similar circumstances arise. To impose sanctions on the current Romanian Government for the misdeeds of an earlier and far less open regime would discourage others from moving to publicize and rectify nonproliferation abuses when they discover them, and would thus make it substantially more difficult to achieve U.S. nonproliferation goals.

In addition, U.S. peaceful nuclear cooperation with Romania contributes to our overall policy of responding positively and constructively to the process of democratization and economic reform in that country. It would be counterproductive to permit sanctions tied to the misdeeds of the earlier regime to undermine our efforts to support positive developments under the current Government. Moreover, continued Romanian ineligibility for U.S. nuclear exports would needlessly disadvantage U.S. suppliers seeking to export to Romania.

The President has therefore further determined that cessation of exports as provided for by section 129 of the Act would be seriously prejudicial to the achievement of United States nonproliferation objectives and otherwise jeopardize the common defense and security.