January 21, 1999

VIA HAND DELIVERY

Hon. Bill Richardson
Secretary of Energy
U.S. Department of Energy
James Forrestal Building
1000 Independence Avenue, S.W.
Washington, D.C. 20585

Mixed Oxide Fuel Shipments from Europe to Japan

Dear Secretary Richardson:

I am writing to you on behalf of the Nuclear Control Institute concerning arrangements for the upcoming shipment of U.S.-origin, fabricated, mixed plutonium/uranium oxide ("MOX") fuel from Europe to Japan. As explained below, we are concerned that the physical protection measures for this shipment will differ significantly from the use of a Japanese coast guard vessel as an armed escort in the 1992 shipment of separated plutonium, and we urge that the Department reject these changes or, at a minimum, treat these changes as requiring a "subsequent arrangement" under Section 131 of the Atomic Energy Act, 42 U.S.C. 2160 (the "Act") before any transportation plan can be approved.

As you know, under the terms of Annex 5 of the Implementing Agreement to the Agreement for Cooperation between the United States and Japan Concerning Peaceful Uses of Nuclear Energy, the United States must approve a transportation plan for all shipments containing plutonium extracted from nuclear fuel originally supplied by the United States for use in Japanese power reactors. Section B.2.(a)(ii) of Annex 5 expressly provides that any plutonium transport ship "will be escorted from departure to arrival by an armed escort vessel unless alternative security measures, documented in the transportation plan, effectively compensate for the absence of an armed escort vessel."

It was clearly understood in 1988 when the Annex 5 sea shipment Guidelines were developed that the phrase "armed escort vessel" referred to a military or coast guard vessel, appropriately manned with trained personnel and capable of effectively protecting the cargo carrier. Indeed, as stated in a side letter to the "Subsequent Arrangement for Sea Transport of Plutonium from Either France, or the United Kingdom, to Japan,"

...it was confirmed during the negotiations that the armed escort vessel is to be either a maritime safety/coast guard vessel or any other ship on government service authorized and fully capable of protecting the transport ship and its cargo and of deterring acts of theft or sabotage. (House Doc. 100-231, 100th Congress, 2d Session, Annex D, "Side Letter Text," p. 32.)

In connection with the development of the Annex 5 sea shipment Guidelines, then Deputy Secretary of State John Whitehead confirmed, in a December 22, 1988, letter to Stephen Solarz, Chair of the Subcommittee on Asian and Pacific Affairs of the House Foreign Affairs Committee, that the Guidelines contemplated "that the transport ship must be accompanied by an armed escort vessel during the entire course of shipment." He further emphasized, "We do not at present expect that alternative security measures for an entire voyage would be satisfactory." Deputy Secretary Whitehead then categorically stated, "[A]ny alternative security measures proposed pursuant to Section B.2.(a)(ii) of Annex 5 that differed significantly from an armed escort vessel would be evaluated by the Administration as a new subsequent arrangement under Section 131 of the Act."

More recently, Acting Secretary of State Strobe Talbott stated in a September 6, 1996, letter to Benjamin Gilman, Chair of the House Committee on International Relations, that the United States "has a written understanding with the Government of Japan explicitly confirming that Annex 5b. applies to the shipment of fabricated MOX fuel." Secretary Talbott went on to state that "the physical protection for MOX shipments will be no less rigorous than the measures applied to Japan’s 1992 shipment of bulk plutonium oxide." In particular, he affirmed that Annex 5b. required an "armed escort vessel unless alternative security measures, documented in the transportation plan, effectively compensate for any absence of an armed escort vessel." Noting that no alternative security measures had at that time been proposed for shipments of fabricated MOX fuel, he unequivocally restated as the position of the Clinton Administration the position taken in Deputy Secretary Whitehead’s 1988 letter that "[w]e do not expect that alternative security measures for an entire voyage would be satisfactory."

In light of the commitments just described, we find deeply disturbing recent information released by the British Government that an alternative security arrangement for sea shipment of fabricated MOX fuel that does not involve protection of the cargo carrier by a military or coast guard vessel has indeed been submitted to the United States Government.

On January 18, 1999, in response to a Parliamentary inquiry to the State Secretary for Trade and Industry concerning arrangements being made for the shipment to Japan of nuclear materials recovered at British Nuclear Fuels' reprocessing plant at Sellafield, Energy Secretary John Battle responded that plutonium so recovered has been fabricated into MOX fuel and then described the following arrangement for transport of the first MOX shipment:

The security arrangements currently under discussion with Japan and the US would involve two PNTL [Pacific Nuclear Transport Ltd.] transport ships travelling together for mutual protection. Each would carry armaments, for defensive use only, under the control of specially trained officers of the United Kingdom Atomic Energy Authority Constabulary. These security provisions are solely for protecting the ships, their crew and their cargo in the extremely unlikely eventuality of an armed assault by terrorists. (Hansard, p. 365.)

It is our understanding that under this arrangement one transport vessel will have MOX fuel on board, the other will not (a decoy ship)---both armed in a manner perhaps comparable to the "Shikashima" escort vessel which accompanied the 1992 shipment.

Frankly, the physical security protection provided under this arrangement appears to be grossly inadequate. Freighters obviously do not have the maneuverability or speed of military or coast guard escort ships such as the "Shikashima", which was commissioned specifically as a plutonium escort vessel.

Further, in our judgment, even the level of security provided in 1992 needs to be enhanced for any 1999 shipment. In 1992, for example, it was reported that, despite the Pentagon’s assessment of the need to defend against an attack "by small, fast craft, especially if armed with anti-ship missiles", the "Shikashima" was not equipped with radar-directed, anti-missile defenses. In 1999, there should be such anti-missile armaments, including such weaponry as "Phalanx Sea Sparrow" and "Sea Whiz" missiles. We understand that no such additional armaments are included in the new proposed transportation plan.

Also, it is far from clear that the PNTL civilian crew would have the training and experience equivalent to what one would find on board a military or coast guard ship. Even if the UK Atomic Energy Authority Constabulary personnel are qualified to repel a conventional attack, their capabilities could be neutralized in an attack involving the use of ship-to-ship missiles---the threat originally anticipated by the Pentagon at the time of the U.S.-Japan Agreement. In the present period of increasingly sophisticated and ruthless international terrorism, only the most stringent seafaring and physical protection measures should be acceptable to assure the security of weapons-usable materials.

If the proposal is to use two transport ships, and/or if they are not to be equipped with radar-directed, anti-missile defenses, we urge you to reject the proposed transport plan as inadequate.

But regardless of the merits of the alternative security arrangement, it is clear that, insofar as it involves the "two transport vessel" approach, it must, consistent with Deputy Secretary Whitehead’s 1988 commitment, trigger the subsequent-arrangement process under Section 131 of the Act. Certainly, use of any vessel other than a military or coast guard vessel for an armed escort is "significantly different" from the arrangements contemplated in 1988 and in fact utilized in 1992. Only the full subsequent-arrangement process, including interagency consultation, Federal Register notice, a "non-inimicality" determination and Congressional review, is most likely to ensure that the United States’ vital security interests in the safe and secure transport of weapons-usable materials are adequately protected.

We ask, therefore, that unless the Department is prepared to reject the transport plan outright, you should, at a minimum, withhold your consent to the plan involving an alternative to use of a military or coast guard vessel until the statutory subsequent-arrangement process is completed.

Thank you for your consideration of our views. We look forward to a prompt response.

Sincerely,

Paul Leventhal

cc: Chairman and Ranking Minority Member, House International Relations Committee
Chairman and Ranking Minority Member, Senate Foreign Relations Committee
Chairman and Ranking Minority Member, House National Security Committee
Chairman and Ranking Minority Member, Senate Armed Services Committee
Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence
Chairman and Ranking Minority Member, Senate Select Committee on Intelligence

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