 The President’s Authority to Order Export of Special Nuclear
       Material Under the Atomic Energy Act of 1954

 T h e P re sid en t has th e p o w e r to o r d e r e x p o rts o f special n u c le a r m aterial u n d er § 126 o f
    th e A to m ic E n e rg y A c t o f 1954, a s am en d ed , w h e n e v e r he d eterm in es th a t “ w ith h o ld ­
    in g th e p ro p o sed e x p o rt w o u ld be se riously preju d icial to th e a ch iev em en t o f U n ited
    S tates n o n -p ro lifera tio n o b jectiv es, o r w o u ld o th e rw ise je o p a rd iz e th e co m m o n defense
    an d se c u rity ."

T h e full-scope safeg u ard s c rite rio n o f § 128, w h ic h ap p lies to e x p o rts o f special n u clear
   m aterial to n o n -n u clear w eap o n states, is b in d in g o n ly on th e N u c le a r R e g u la to ry
   C om m ission. W hile th e P re sid en t m ay ta k e in to a c c o u n t th e expression o f con g ressio n al
   p o licy co n tain ed in § 128 in d e c id in g to o r d e r an e x p o rt u n d e r § 126, in clu d in g its
   affo rd a n c e o f a g ra c e perio d , he is n o t bou n d by it.


                                                                                                  June 6, 1980

                          M EM ORANDUM OPIN IO N FOR
                        TH E COUNSEL TO T H E PR ESID EN T

   This responds to your request for our opinion whether § 128 of the
Atomic Energy Act of 1954, as amended by the Nuclear Non­
proliferation Act of 1978, 42 U.S.C. §2157, imposes any limitation on
exercise by the President of his power under § 126(b)(2) of that Act, 42
U.S.C.. § 2155(b)(2), to order export of special nuclear material for
which the Nuclear Regulatory Commission (NRC) has not issued a
license on the stated ground that it could not make the necessary
statutory determinations. The issue arises because the NRC concluded
that the grace period in § 128 did not apply to two license applications
for export of special nuclear material for the Tarapur reactors in India
and, therefore, the licenses could not be granted because India has not
agreed to the full-scope safeguards required by § 128.1 You also asked
whether a presidential order under § 126(b)(2) that the export go for­
ward is, in effect, also a decision that the full-scope safeguards require­
ment in § 128 either does not apply because of the statutory grace
period or is waived by the President’s action. Finally, you have re­
quested our views on whether the President may rely on his interpreta­
tion of the grace period to order the export.

   1    T h e Commission w as “ also unable to find th at th e tw o fuel applications satisfy the requirem ents o f
Section 127 o f th e A tom ic E nergy A c t.” In the Matter o f Edlow International Co. 11 N .R .C. 680, 682
(1980).


                                                        680
   We conclude that the full-scope safeguards criterion of § 128 is bind­
 ing only on the NRC. The President may take the expression of
 congressional policy in § 128 into account in deciding whether to order
 the export but he is not bound by it.2 The exclusive criterion binding
 on the President is that of § 126(b)(2) “that withholding the proposed
export would be seriously prejudicial to the achievement of United
 States non-proliferation objectives, or would otherwise jeopardize the
common defense and security.”
   This presidential finding is the same as that which, pursuant to
 § 128(b)(1), could be submitted by the President to the NRC to waive
the full-scope safeguards criterion during the NRC’s consideration of a
license for exports to which § 128 applies. However, when the presi­
dential finding is made under § 126 after the NRC has refused to issue a
license, it is not necessarily a commentary on the full-scope safeguards
criterion. Therefore, it is not necessary for the President to resolve the
question whether the full-scope safeguards of § 128 apply in order to
decide that the export should go forward pursuant to his finding under
§ 126. Of course, the President may base his conclusion “that withhold­
ing the proposed export would be seriously prejudicial to the achieve­
ment of United States non-proliferation objectives, or would otherwise
jeopardize the common defense and security” on his determination that
the export application comes within the spirit of the grace period
concept that underlies § 128.
   Section 126 provides that no license for the export of any special
nuclear material may be issued by the NRC until the Secretary of State
has notified the NRC that it is the judgment of the Executive branch
that the proposed export will not be inimical to the common defense
and security. The Secretary of State must “specifically address the
extent to which the export criteria then in effect are met and the extent
to which the cooperating party has adhered to the provisions of the
applicable agreement for cooperation.” See § 126(a)(1).
   The NRC may grant requests for export licenses upon a determina­
tion that all applicable statutory requirements have been met. See
§ 126(b)(1). Section 126(b)(2) provides that:
        If, after receiving the executive branch judgment that the
        issuance of a proposed export license will not be inimical
        to the common defense and security, the Commission does
        not issue the proposed license on a timely basis because it
        is unable to make the statutory determinations required
        under this chapter, the Commission shall publicly issue its
        decision to that effect, and shall submit the license appli­
        cation to the President . . . If, after receiving the pro­
        posed license application and reviewing the Commission’s

 2 T he same is true o f those criteria found in § 127, 42 U.S.C. § 2156.


                                                  681
        decision, the President determines that withholding the
        proposed export would be seriously prejudicial to the
        achievement of United States non-proliferation objectives,
        or would otherwise jeopardize the common defense and
        security, the proposed export may be authorized by Exec­
        utive order.3
   The criteria governing exports for peaceful nuclear uses from the
 United States of special nuclear material are set forth in § 127, 42
U.S.C. §2156, and involve such matters as application of International
Atomic Energy Agency (IAEA) safeguards on the particular material
exported, physical security measures, and limitation on retransfers. An
additional criterion applicable to exports to non-nuclear weapon states4
is that IAEA safeguards must be “maintained with respect to all peace­
ful nuclear activities in, under the jurisdiction of, or carried out under
the control of such state at the time of export.” See § 128(a)(1). This
additional criterion, known as full-scope safeguards, applies only to an
application “which is filed after eighteen months from March 10, 1978.”
See § 128(b). The full-scope safeguards requirement may be waived for
applications filed after this grace period expires if the licensing agency
is “notified that the President has determined that failure to approve an
export to which [the full-scope safeguards criterion] applies because
such criterion has not yet been met would be seriously prejudicial to
the achievement of United States non-proliferation objectives or other­
wise jeopardize the common defense and security.” See § 128(b)(1).
Section 128 contains a provision requiring submission of the President’s
determination to Congress similar to that contained in § 126.
   Section 126(b)(2) gives the President broad power to order an export
for foreign policy, national security or other reasons if “the President
determines that withholding the proposed export would be seriously
prejudicial to the achievement of United States non-proliferation objec­
tives, or would otherwise jeopardize the common defense and secu­
rity.”
   It might be argued that §§ 127 and 128 apply to all U.S. exports of
special nuclear material and thus limit exercise of the President’s power
under § 126. Section 127 states that “[t]he United States adopts the
following criteria which, in addition to other requirements of law, will
govern exports.” Section 128(a) provides that “no such export” shall be
made unless it meets the criteria; the President is charged with seeking

   3 T his section provides that the executive o rd e r shall be subm itted to C ongress for 60 days o f
continuous session and the export shall not o c cu r if, d u ring the 60 days. C ongress passes a concurrent
resolution opposing it. W e do not now com m ent on the constitutionality o f this legislative veto
provision.
   4 A non-nuclear w eapon state is one that did not explode a nuclear explosive device prior to
January 1, 1967. A rticle IX, T reaty on the N on-Proliferation o f N uclear W eapons, opened fo r signature
July 1. 1968, 21 U .S.T. 483, T.I.A .S. No. 6839, 729 U .N .T.S. 161 (entered into force M arch 5, 1970).
India falls in this category because it did not explode such a device until 1974.


                                                   682
to achieve adherence to the criteria.5 We believe, however, that read­
ing the criteria in §§ 127 and 128 as binding on the President would be
incompatible with the President’s responsibilities set forth in § 126. Our
view is supported by members of the NRC, who have continuously and
repeatedly recognized that the President’s power under § 126 is not
constrained by the criteria set forth in §§ 127 and 128.6 As was ex­
plained by the Deputy to the Undersecretary of State for Security
Assistance, Science and Technology, when he testified before the
House Subcommittee considering the non-proliferation Act, “ [w]e
sometimes make the mistake of assuming that nuclear export policy and
nonproliferation policy are the same thing. They are clearly not. Nu­
clear export policy is only part of the larger nonproliferation policy.” 7
   In sum, it is our conclusion that the President is empowered to order
the export of special nuclear material to India in response to the
pending applications upon his determination “that withholding the pro­
posed export would be seriously prejudicial to the achievement of
United States non-proliferation objectives, or would otherwise jeopard­
ize the common defense and security.” See § 126(b)(2). That is the sole
condition for the exercise of the President’s power.
   The President may base this presidential finding on his conclusion
that the export applications in question come within a grace period
concept which is a part of the United States policy on non-proliferation
and which formed the basis for the exception embodied in § 128 to the
full-scope safeguards criterion for NRC-licensed exports.8 The Presi­
dent is free to reach this conclusion notwithstanding the NRC decision
that, under its interpretation of § 128, the statutory requirements for the
NRC to find an exception to the full-scope safeguards criterion have
not been met. That NRC decision is irrelevant to the question of the
President’s authority under § 126 to order this export. Section 128
simply does not restrict the President’s authority.
                                                            Jo   hn   M.   H   arm on

                                                      Assistant Attorney General
                                                       Office o f Legal Counsel
   *    T he H ouse R eport on the A ct states that the criteria “will apply uniform ly to al! U.S. nuclear
exports." H.R. Rep. No. 587, 95th Cong., 1st Sess. 23 (1977). T he same R eport explains, how ever, that
the bill “ will insure that w hen all statutory standards have been met, export licenses will be issued—
or, if the judgm ent o f the Executive Branch and the independent N uclear R egulatory Commission
should differ, that a w orkable m echanisn\ exists for resolving the dispute." Id. at 6.
   6 See, e.g.. Separate V iew s o f Commissioners Gilinsky and Bradford on X SN M -1222, 9 N R C 209,
251 (1979); Separate V iew s o f Commissioners B radford and G ilinsky on X SN M -1060, 7 N .R .C . 436,
445 (1978); Statem ent o f J. H endrie, Chairm an, N R C , S. Rep. No. 467, 95th Cong., 1st Sess. 112
(1977).
   7 The Nuclear Antiproliferation Act o f 1977, Hearings on H.R. 8638 Before the Subcomms. on Interna­
tional Security and Scientific Affairs and on International Economic Policy and Trade o f the House Comm,
on International Relations. 95th Cong., 1st Sess. 108 (1977).

   8 T h e statute itself contem plates that the President will state the reasons for his action in his
com m unication to Congress. Section 126(b)(2) requires submission to C ongress o f the “ Executive
order, togeth er w ith his explanation o f w hy, in light o f the C om m ission’s decision, the export should
nonetheless be m ade.’*
                                                   683
