Regulatory Considerations: Nuclear Technology, Prescribed Information and Export Controls

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1 Canadian Nuclear Safety Commission Commission canadienne de sûreté nucléaire Regulatory Considerations: Nuclear Technology, Prescribed Information and Export Controls Lisa Thiele Canadian Nuclear Safety Commission CNLO Second Annual Nuclear Law Course Toronto, ON November 13, 2015 E-doc nuclearsafety.gc.ca

2 Outline Nuclear technology how it is regulated in Canada by the CNSC Prescribed information Patents relating to nuclear energy Controlled nuclear information Non-Proliferation Treaty (NPT) the non-proliferation bargain Export controls in Canada Nuclear Cooperation Agreements (NCAs) Canada s nuclear nonproliferation policy Recent considerations for export control/non-proliferation issues Canadian Nuclear Safety Commission nuclearsafety.gc.ca 2

3 How Nuclear Technology Is Regulated in Canada Nuclear Safety and Control Act, S.C. 1997, c.9 Licensing: Subject to the regulations, no person shall, except in accordance with a licence, (a) possess, transfer, import, export, use or abandon a nuclear substance, prescribed equipment or prescribed information; (e) prepare a site for, construct, operate, modify, decommission or abandon a nuclear facility; (s.26) Ownership of nuclear facilities or of prescribed information is not licensed or regulated by the CNSC 3

4 Nuclear Facilities Licensing and Design Review Licence application requirements involve regulatory evaluation of nuclear technology for example, a construction licence application requires: (a) a description of the proposed design of the nuclear facility ; (e) a description of the systems and equipment proposed to be installed at the nuclear facility, including their design and their design operating conditions; (f) a preliminary safety analysis report demonstrating the adequacy of the design of the nuclear facility; (s.5, Class I Nuclear Facilities Regulations) Nuclear technology information is key to safety assessment measured against NSCA, other regulatory requirements Vendor design review special projects to review design identify whether fundamental barriers to licensing exist 4

5 Regulating Prescribed Information General Nuclear Safety and Control Regulations, s.21: 21. (1) Information that concerns any of the following, including a record of that information, is prescribed information for the purposes of the Act: (a) a nuclear substance that is required for the design, production, use, operation or maintenance of a nuclear weapon or nuclear explosive device, including the properties of the nuclear substance; (b) the design, production, use, operation or maintenance of a nuclear weapon or nuclear explosive device; (c) the security arrangements, security equipment, security systems and security procedures established by a licensee in accordance with the Act, the regulations made under the Act or the licence, and any incident relating to security; and (d) the route or schedule for the transport of Category I, II or III nuclear material, as defined in section 1 of the Nuclear Security Regulations. Licence exemptions re: prescribed information s.22 Limitation on transfer, disclosure of prescribed information s.23 Obligation to prevent transfer, disclosure s.23(2) 5

6 Prescribed Information So nuclear technology is not, for the most part, prescribed information that is subject to licensing by the CNSC within Canada. 6

7 Patent Act Patents Relating to Nuclear Energy 22. Any application for a patent for an invention that, in the opinion of the Commissioner, relates to the production, application or use of nuclear energy shall, before it is dealt with by an examiner appointed pursuant to section 6 or is open to inspection by the public under section 10, be communicated by the Commissioner to the Canadian Nuclear Safety Commission. 7

8 What Is the CNSC s Regulatory Interest in a Patent Application Related to Nuclear Energy? Today: identify whether application has prescribed information S.50 NSCA offence possession of prescribed information capable of being used to produce a nuclear weapon or a nuclear explosive device Historical note: Under the Atomic Energy Control Act, the Atomic Energy Control Board (AECB) was to ensure tight control over nuclear energy development and disclosure of info Nuclear Energy Act, s.10 Ministerial power to acquire patent rights related to nuclear energy 8

9 Licensing Prescribed information NPP operating licence, for example: This licence authorizes the licensee to: (i) operate the nuclear facility ; (iii) possess and use prescribed equipment and prescribed information that are required for, associated with, or arise from the activities described in (i); Prescribed information is not available to the public Commission deals with prescribed information in camera in its proceedings All information that merits protection (proprietary, security) is treated accordingly under the CNSC Rules of Procedure for proceedings, and federal access/privacy laws 9

10 Nuclear Technology Is Controlled Nuclear Information Nuclear Non-Proliferation Import and Export Control Regs: Controlled nuclear information is prescribed information with respect to the import and export of that information (s.1) Technical data, including, but not limited to, technical drawings, models, photographic negatives and prints, recordings, design data and technical and operating manuals, whether in written form or recorded on other media or devices such as disk, tape and read-only memories for the design, production, construction, operation or maintenance of any item in this Part, except data available to the public (e.g. in published books or periodicals, or that which has been made available without restrictions on its further dissemination) (A.4.1) Items in this Part include reactors, equipment and components for reactors, fuel fabrication plants, and systems for conversion/enrichment 10

11 Controlling Import and Export of Technology Canada through the CNSC regulates the import and export of nuclear technology for non-proliferation reasons. This is Canada s legal obligation under the NPT and its safeguards agreements with the IAEA, and also reflects Canadian policy. Industry (importers, exporters) protect their IP and other commercial and property interests. 11

12 Treaty on the Non-Proliferation of Nuclear Weapons Opened for signature on 1 July 1968 Art I: nuclear-weapon States (NWS) won t share weapons; won t help nonnuclear-weapon States (NNWS) acquire weapons Art II: NNWS won t accept weapons; won t seek to acquire weapons Art III: NNWS will accept safeguards safeguards shall be applied on all source or special fissionable material in any peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere. All parties undertake not to provide material or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any NNWS for peaceful purposes unless the material is subject to safeguards Safeguards not to hamper peaceful nuclear trade/industry Art IV: inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination All parties to facilitate fullest possible exchange of equipment, materials and scientific and technical information for the peaceful uses of nuclear energy The NPT bargain: forego weapons acquisition, get nuclear power Canadian Nuclear Safety Commission nuclearsafety.gc.ca 12

13 Nuclear Trade Complying With the NPT All NPT States: are not to provide material or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any NNWS for peaceful purposes unless it is subject to safeguards are to facilitate fullest possible exchange of equipment, materials and scientific and technical information for the peaceful uses of nuclear energy This results in a need for clarification of meaning, and control of exports. 13

14 Export Control Regimes the Beginning Zangger Committee (1971) an informal agreement among 15 nuclear supplier NPT states on the rules for supply of material, and the meaning of equipment or material especially designed for Trigger list items triggering IAEA safeguards requirement Three conditions of supply to NNWS: peaceful use assurance, IAEA safeguards, re-transfer/re-export restrictions Nuclear Suppliers Group (1975) an informal agreement on nuclear non-proliferation export policy (NSG started as the London Club - Canada, Germany, France, Japan, USSR, UK, US) Guidelines for nuclear-use items, nuclear-related dual-use items Requirement for physical protection measures Restraint in transfer of sensitive facilities, technology and weaponsuseable materials 14

15 Export Controls - Implementation Implementation of informal groups guidelines: unilateral commitment by Participating Governments to adopt laws according to the agreement notification to IAEA Director General, dissemination to all IAEA Member States implementation through domestic law updates to groups membership, lists The NSG Guidelines are implemented by each Participating Government (PG) in accordance with its national laws and practices. 15

16 Nuclear Export Controls in Canada Nuclear Safety and Control Act s.26: Subject to the regulations, no person shall, except in accordance with a licence, (a) import, export a nuclear substance, prescribed equipment or prescribed information Nuclear Non-Proliferation Import and Export Control Regulations, SOR/ incorporate INFCIRC/254 (NSG Guidelines) - incorporate INFCIRC/209 (Zangger trigger list) Lists are reproduced, with some modifications in regs, and updated periodically See also Export Control List, promulgated under Export Import Permits Act, R.S.C c. E-19 16

17 Import/Export Licensing - NSCA Licence application must contain, inter alia: - name/address of supplier - country of origin of substance, equipment, information - consignees - intended end-use and end-use location - information on physical protection measures Focus is on export; many exemptions apply to import Licence conditions for reporting, follow-up, limitations Licensing process also implements Code of Conduct on the Safety and Security of Radioactive Sources, facilitates reporting to the IAEA, information-sharing 17

18 Other Export Controls and Prohibitions United Nations Act, R.S.C. 1985, c.u-2 Regulations Implementing the United Nations Resolutions on Iran, SOR/ Special Economic Measures Act, S.C. 1992, c.17 Special Economic Measures (Russia) Regulations, SOR/

19 Nuclear Cooperation Agreements Why? International obligations NPT Canadian commitments e.g., NSG Canadian policy Canada s nuclear non-proliferation policy establishes the conditions under which Canada is prepared to consider undertaking nuclear cooperation with selected partner countries. Canada s commitment to facilitating peaceful nuclear cooperation stems from the three-part bargain that is fundamental to the Nuclear Non-Proliferation Treaty (NPT) States that possess peaceful nuclear expertise are committed to assist other states Canada has the right to establish the conditions under which it will permit international nuclear cooperation in accordance with its NPT commitments to ensure the non-proliferation of nuclear weapons. 19

20 Nuclear Cooperation Agreements (cont d.) Canada s nuclear non-proliferation policy peaceful purposes nuclear trade under safeguards NCAs treaty-level assurance that nuclear material, equipment and technology will be used only for civilian, peaceful applications include obligations: Canadian exports will be used only for peaceful, non-explosive end-uses Canadian control over items subject to the NCA that are re-transferred; Canadian control over the reprocessing of any Canadian spent nuclear fuel Canadian control over the storage/use of any separated plutonium Canadian control over the high enrichment of Canadian uranium and the subsequent storage and use of the highly enriched uranium bilateral safeguards if IAEA safeguards are unable to be applied assurances that Canadian nuclear items will be subject to adequate physical protection measures to ensure that they are not stolen or otherwise misused Convention on the Physical Protection of Nuclear Material 20

21 NCAs and AAs NCAs put State-level reciprocal obligations on anything traded under the NCA Transfers done under an NCA mean the items are obligated or flagged for bilateral commitments Administrative Arrangements (AAs) - concluded by the CNSC with its regulatory counterpart in the partner country means by which cooperation is to be effected, administration of mutual obligations: prior notice, consents, mutual reporting/accounting, info exchange AAs not legally binding, reflect intentions for administration of nuclear cooperation Canada has NCAs with ~ 28 countries + Euratom Canadian Nuclear Safety Commission nuclearsafety.gc.ca 21

22 Non-Proliferation and Export Controls: Developments and Considerations Addition of catch-all controls: Any equipment not otherwise included in paragraph B.2. if the equipment is intended, or there are reasonable grounds to suspect that it is intended, in whole or in part, for use in connection with the design, development, production, handling, operation, maintenance or storage of nuclear weapons or other nuclear explosive devices. (item B of Schedule to SOR/ ) Intangible technology transfer (ITT) electronic transactions, deemed export Concern about non-state actors and terrorism Increasing role for industry? access to information that can assist awareness of attempted, intercepted and seized export shipments 22

23 Some References for Further Reading Laura Rockwood, Legal Framework for IAEA Safeguards, IAEA (2013) James A. Glasgow, Elina Teplinsky, Stephen L. Markus, Nuclear Export Controls: A Comparative Analysis of National Regimes for the Control of Nuclear Materials, Components and Technology, NEI (October 2012) Quentin Michel, The Control of International Trade Difficult Balance Between Trade Development and Non-Proliferation of Nuclear Weapons, in International Nuclear Law: History, Evolution and Outlook, OECD NEA (2010) Odette Jankowitsch-Prevor, A New Role of Industrial Operators in Trade in an Evolving Nuclear Export Control Regime - Beyond Legal Responsibilities? in Sensitive Trade: The Perspective of European States, Quentin Michel (ed.), P.I.E. Peter Lang SA (Brussels, 2011) 23

24 Canadian Nuclear Safety Commission nuclearsafety.gc.ca

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