France's comments on proposal for application of Euratom safeguards

Brussels, 13 June 2002

Proposal for a Council Decision approving a Commission Regulation on the application of Euratom safeguards. Cover note. Brussels, 4 June 2002 (11.06) (document 9602/02 ATO 69 CONOP 11). Full text

Delegations will find attached the French delegation's comments on the above proposal.

The French authorities thank the Commission and the Chair of the Working Party on Atomic Questions for their initiatives, which have given the Member States the opportunity to comment on the draft new Regulation.

They support that dialogue process, which ought to make it possible to draft the text so that it meets the requirements listed by the Commission and those stated by the Member States.

They hope that consideration will continue as soon as the high-level experts' report is communicated to the Member States, insofar as its conclusions can have an effect on the development of the Office's functions, of which the Regulation ought to be a reflection, at least indirectly.

In addition, they are in favour of holding meetings of experts, which ought to make progress on this dossier possible with a view to the future entry into force of the additional protocols.

The comments set out below consist of a general presentation with an indication of the principal guidelines that the French authorities would like to see in the draft Regulation and their incorporation (in non-exhaustive form) into the body of the text.

1. Principal guidelines desired

* The draft Regulation must enable the Commission to discharge the responsibilities incumbent upon it under the additional protocols strictly within the limits of the provisions of those protocols.

The question of the monitoring of nuclear materials contained in waste must, in particular, reflect the relevant provisions of additional protocols of the fifteen Community Member States, complying with both their spirit and their letter.

In the case of conditioned waste, the fifteen's protocols do not provide for the provision of special information regarding waste for which no subsequent processing to separate materials is planned and regarding which the IAEA's guarantee has been withdrawn. Under the Euratom Treaty no further use of such materials may be considered and the safeguard must be removed. The draft Regulation must therefore be amended accordingly.

As regards retained waste, the additional protocol provides that information shall be provided. In the minds of the negotiators of the protocols, that information was not of the accounting sort.

It must give the Agency qualitative indications regarding the nature of that waste and what is to happen to it. Accordingly, the importance of the Office's detailed monitoring of such retained waste has not been demonstrated. Furthermore, such monitoring would inevitably cause practical difficulties vis-à-vis not only the IAEA but also the Member States; it would also result in additional costs for the OCSE.

In addition, it would appear that under the Euratom Treaty the Commission wants to have information available and monitor spent fuel conditioned and stored finally. The IAEA regards such conditioned spent fuel as being under guarantee and treats it as nuclear materials. Adapted guarantees will be put in place by the Agency. From the point of view of the Euratom Treaty, it is quite possible to include such spent fuel in the category of retained waste if the storage contemplated is reversible. That would obviously not call into question the distinction made between spent fuel and waste in the Joint Convention.

In order to be able to evaluate more precisely the consequences of such a development, the French authorities will ask the Commission to submit the precise monitoring arrangements it wants to introduce for materials contained in retained waste. From France's point of view, if such a system were to be contemplated, it could be set up only on the basis of a derogatory system using simplified reporting of the main characteristics of the waste and indications (by order of magnitude) of their nuclear-material content, by major categories: plutonium, thorium and uranium.

Additional discussions must be started, on a subject the implications of which have still to be assessed.

* The French authorities also wish to draw attention to the practical difficulties that might result from the implementation of the new Regulation, either because of the incompatibility of certain of its provisions with national laws or even the deadlines for the communication of information in a new format.

By way of example, they note the incompatibilities between the thresholds specified by French law and those in the draft new Regulation for the identification of small holders of materials.

Likewise, the length of the transitional period laid down in the Regulation is well known to be underestimated. The same applies to the time limits for the declaration of the basic technical characteristics (BTC) of new installations or updates of existing BTC. They hope that the Commission will be flexible in applying those provisions and ask that discussions start to determine the adaptations required.

* The new Regulation must be perfectly compatible with the Treaty and in particular Article 197 on nuclear materials. Consequently, there must be no reference to americium in the Regulation.

* The communication or use in an installation of information in electronic forms may be acceptable in principle, but its safety must be guaranteed and it must be administered in a manner that is compatible with national requirements and those of the operators. The confidentiality of the information must also be guaranteed throughout. Discussions must be held on these points.

2. Preliminary proposals for amendments to the draft Regulation

These proposals for amendments are not exhaustive and may be supplemented as discussions on the draft progress.

Article 2: Discussions should be held, in particular on the definitions of waste proposed in this Regulation.

Article 3(1): In accordance with the position on the monitoring of waste set out above, the expression "the storage of waste" in the second sentence ought to be deleted.

Article 4: The time limit of thirty days imposed in the third paragraph of this Article must be increased significantly. A time limit of six months would be preferable.

Article 9(b): The inclusion in operating records of a list of inventory items present at any time as a general rule (even if we have noted the use of the expression "where appropriate") does not correspond to the operating realities of certain installations. The reference to lists of inventory items present ought to be deleted (as in the previous Regulation). That would not prevent the discussion of the provision of that information for certain installations if it were available.

Article 9(d): The reference to "quality-control measures" in a safeguards Regulation would not appear to be appropriate, as it is more a matter of commercial strategy. The reference ought to be deleted. Article 9(c), however, could be supplemented, if necessary, to specify the methods of calibrating the instruments relevant to the guarantees.

Article 9(g): The reference to americium must be deleted.

Article 12: If, after discussions with the Commission and the Member States, a system of simplified reporting for retained waste were finally agreed on, that system could not have retroactive effect. The initial inventory ought not therefore to apply to retained waste.

Article 20: In the draft new Regulation there is no equivalent of Article 5 of Regulation No 32/76 concerning persons or firms holding exclusively exempt materials. The French authorities want information concerning the reasons for and the consequences of that deletion, and concerning the practical operation of this new system as regards the follow-up of small holders. In particular, they wonder whether it is necessary to communicate the basic technical characteristics of installations automatically in the case of every small holder.

The thresholds concerning the small holders referred to in Annex I (Section G), in particular that for depleted uranium, are incompatible with current French law. The French authorities accordingly want special provisions to be considered so that those disparities can be dealt with and discussions to be held on the subject.

They approve the reference to the provision of an annual report in the Regulation, but would prefer the deadlines for its communication to be more flexible in order to take account of the practical constraints on the collection of information. They suggest providing that the information concerning each calendar year should be communicated during the first half of the following year.

Article 34: If the advantage of introducing a system of simplified reporting on retained waste were eventually confirmed, the wording of Article 34 ought to be amended to take account of the problem of waste produced by defence-related activities. The Regulation could not in any case apply to waste produced by or relating to such activities. The text of the Regulation ought to state that non-applicability clearly, and the restrictions potentially linked to the mixed nature of certain waste.

Article 34(3)(d): In view of the wording of the French version of the Additional Protocol on the question of the communication of information on conditioned waste, we would like Article 34(3)(d) to be amended to read as follows: "(d) the provisions of Articles 3(2), 32 and 34 shall not apply within the territories of nuclear-weapon Member States".

However, if the Commission were to request it, a copy of all or part of the information concerning conditioned waste communicated to the IAEA under the Additional Protocol could be communicated to it on a basis to be defined.

Article 37: The transitional period of three years provided for in the Regulation in connection with changes in reporting format would not seem to be long enough. By way of information, some French operators have only very recently changed their accounting systems. It is therefore hardly conceivable, in view of the fact that both operators' and national accounting systems will have to be altered, that those systems will be fully operational within that period. It would be preferable to negotiate a transitional period that could vary from three to five years according to the specific characteristics and the complexity of the systems to be altered.

Annexes III, IV and V: The numbers of lines in these reports have increased significantly. Such changes are a powerful argument for a transitional period in proportion to the magnitude of the changes contemplated.

The inventory-change codes will have to be examined during the discussions which are to be held.

As regards the definition of transfers to conditioned waste (TC), it is not necessary to provide accounting information on conditioned waste.

If the principle of a simplified system of reporting on transfers to retained waste (TW) were accepted, the details of that simplified accounting system ought to be defined precisely.

Finally, the question of retransfers from retained waste (FW), which can cause practical difficulties, particularly where there are movements of such waste, will have to be examined.

Conclusion

This first series of comments is not exhaustive. France will continue to consider this draft and awaits the communication to delegations of the high-level experts' report, which could have a direct or indirect effect on the examination in progress.

In view of the nature of the changes contemplated in the draft new Regulation, it would appear to be necessary to organise meetings of experts in order to continue the dialogue and ensure that the new Regulation is more appropriate to the challenges of the implementation of the additional protocols in all their diversity and the foreseeable developments in safeguards in the Community.

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