This is the accessible text file for GAO report number GAO-15-123 
entitled 'Department of Energy: Interagency Review Needed to Update 
U.S. Position on Enriched Uranium That Can Be Used for Tritium 
Production' which was released on November 14, 2014. 

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United States Government Accountability Office: 
GAO: 

Report to Congressional Requesters: 

October 2014: 

Department of Energy: 

Interagency Review Needed to Update U.S. Position on Enriched Uranium 
That Can Be Used for Tritium Production: 

GAO-15-123: 

GAO Highlights: 

Highlights of GAO-15-123, a report to congressional requesters. 

Why GAO Did This Study: 

The United States needs an assured source of tritium to maintain the 
U.S. nuclear weapons stockpile. To produce tritium, DOE has stated 
that it can only use LEU with no obligation to other countries under 
international agreements to use it for only peaceful purposes. USEC, a 
government corporation privatized in 1998, was the only company 
enriching uranium that DOE said could meet its LEU needs, but USEC 
ceased enrichment operations in May 2013 and filed for Chapter 11 
bankruptcy protection in March 2014. DOE is currently considering 
options for obtaining unobligated LEU. Only one enrichment facility, 
which is owned by URENCO, operates in the United States, and four 
other commercial facilities are planned. Four of the five facilities 
use or will use technology that carries peaceful use obligations to 
other countries. 

GAO was asked to review international agreements addressing enrichment 
technology in the United States with respect to how peaceful use 
provisions apply to tritium production. This report examines (1) the 
extent to which DOE has adhered to its practice of using only 
unobligated LEU to produce tritium and (2) the basis for this 
practice. To address these issues, GAO analyzed agency documents and 
international agreements and interviewed DOE and Department of State 
officials, among other steps. 

What GAO Found: 

The Department of Energy (DOE) has adhered to its practice of using 
only unobligated low-enriched uranium (LEU) to meet national security 
needs for tritium-—a radioactive isotope of hydrogen used to enhance 
the power of U.S. nuclear weapons. LEU is considered unobligated when 
neither the uranium nor the technology used to enrich it carries an 
“obligation” from a foreign country requiring that the material only 
be used for peaceful purposes. These obligations are contained in 
international agreements to which the United States is a party. DOE 
has adhered to this practice by, for example, requiring in its 
interagency agreement for tritium production with the Tennessee Valley 
Authority (TVA) that TVA use only unobligated LEU as fuel in any 
nuclear reactor that is being used to produce tritium for national 
security purposes, and DOE is responsible for ensuring that TVA can 
obtain unobligated LEU for this purpose. 

The basis for DOE's practice of using only unobligated LEU to produce 
tritium considers both law and policy. 

* Legal considerations: GAO reviewed the three key international 
agreements that address the importation of foreign-owned enrichment 
technology that is operating or planned for operation in the United 
States. GAO found that only one agreement explicitly addresses tritium 
and this agreement likely prohibits the production of tritium for 
weapons purposes. This is also consistent with an executive branch 
interpretation of the agreement. The other two agreements do not 
explicitly address tritium production for weapons purposes, but 
Department of State officials told GAO that a reading of the 
agreements to prohibit the use of technology subject to the peaceful 
use restrictions for tritium production is consistent with U.S. 
nonproliferation policy interests. 

* Policy considerations: Officials told GAO that using only 
unobligated LEU for national security purposes supports U.S. 
nonproliferation policy goals by, for example, avoiding setting a 
precedent for other countries that may seek to use purchased LEU for 
military purposes. A 1998 interagency report evaluated 
nonproliferation implications of U.S. tritium production and concluded 
that, in utilizing TVA's reactors for tritium production, DOE should 
fuel the reactors with LEU that does not have peaceful use obligations 
to best preserve a military-civilian dichotomy. DOE and State 
officials have also cited policy goals in response to questions about 
whether TVA can use LEU produced by a URENCO enrichment facility for 
tritium production. 

However, a key assumption underlying the decision to use only 
unobligated LEU for national security purposes has changed. The United 
States no longer has a ready capability to enrich unobligated LEU for 
tritium production because USEC ceased enrichment operations in 2013, 
and the future of the company's planned next-generation enrichment 
facility—-the only planned enrichment facility that could produce 
unobligated LEU—-is uncertain. According to DOE officials, the 
department is currently engaged with an interagency working group to 
assess options for obtaining unobligated LEU in the future. Given that 
the United States no longer has an assured source of unobligated LEU, 
the results of an updated interagency review that either reaffirms or 
supports a change in the current practice could help address questions 
about whether using certain other LEU for tritium production is an 
option for DOE at this time. 

What GAO Recommends: 

GAO recommends that the Secretary of Energy work through an 
interagency working group to review DOE's current practice of using 
only unobligated LEU for the production of tritium. DOE neither agreed 
nor disagreed with GAO's recommendation. 

View [hyperlink, http://www.gao.gov/products/GAO-15-123]. For more 
information, contact David C. Trimble at (202) 512-3841 or 
trimbled@gao.gov or Susan D. Sawtelle at (202) 512-6417 or 
sawtelles@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

DOE Has Only Used Unobligated LEU to Meet National Security Needs for 
Tritium Production: 

DOE's Practice of Using Unobligated LEU for Tritium Production Is 
Based on a Mix of Legal and Policy Considerations, but a Key 
Assumption Underlying This Practice Has Changed: 

Conclusions: 

Recommendation for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Peaceful Use Language in Key International Agreements 
Addressing Uranium Enrichment Facilities Operating or Planned for 
Operation in the United States: 

Appendix III: Peaceful Use Language in Additional Select Treaties and 
International Agreements Related to Nonproliferation and Nuclear Trade: 

Appendix IV: Comments from the Department of Energy: 

Appendix V: Comments from the Nuclear Regulatory Commission: 

Appendix VI: GAO Contacts and Staff Acknowledgments: 

Figures: 

Figure 1: Uranium Enrichment Facilities Closed, Currently Operating, 
or Planned for Operation in the United States: 

Figure 2: The Nuclear Fuel Cycle: 

Figure 3: Planned, Potential, and Backup Supplies of Unobligated Low-
Enriched Uranium for Tritium Production, 2014 to 2040: 

Abbreviations: 

ACP: American Centrifuge Plant: 

AEA: Atomic Energy Act: 

DOE: Department of Energy: 

GDP: Gaseous Diffusion Plant: 

GLE: Global Laser Enrichment: 

HEU: highly enriched uranium: 

LEU: low-enriched uranium: 

NNSA: National Nuclear Security Administration: 

NRC: Nuclear Regulatory Commission: 

NPT: Treaty on the Non-Proliferation of Nuclear Weapons: 

SILEX: Separation of Isotopes by Laser Excitation: 

TPBAR: tritium-producing burnable absorber rod: 

TVA: Tennessee Valley Authority: 

[End of section] 

United States Government Accountability Office: 
GAO:
441 G St. N.W. 
Washington, DC 20548: 
October 14, 2014: 

The Honorable Edward J. Markey: 
Chairman: 
Subcommittee on International Development and Foreign Assistance, 
Economic Affairs, International Environmental Protection, and Peace 
Corps: 
Committee on Foreign Relations: 
United States Senate: 

The Honorable Michael C. Burgess: 
House of Representatives: 

Uranium has been enriched for over 60 years in the United States both 
for national security purposes, such as for nuclear weapons, as well 
as for commercial purposes to fuel nuclear power plants.[Footnote 1] 
The enrichment process can result in low-enriched uranium (LEU), which 
DOE needs in order to produce tritium, a radioactive isotope of 
hydrogen, used to enhance the power of U.S. nuclear weapons. Beginning 
in the 1940s, the Department of Energy (DOE) and its predecessor 
agencies enriched uranium for both national security and civilian 
purposes. In 1992, the U.S. government established the United States 
Enrichment Corporation (USEC) as a government corporation to take over 
operations of DOE's enrichment facilities and to provide uranium 
enrichment services for the U.S. government and utilities that operate 
nuclear power plants.[Footnote 2] In 1998, USEC was privatized under 
the USEC Privatization Act.[Footnote 3] Since that time, USEC has been 
the only company that uses U.S.-developed technology to enrich uranium. 

In May 2013, USEC ceased enrichment at its last commercially active 
enrichment plant--the Gaseous Diffusion Plant (GDP) in Paducah, 
Kentucky, that it had leased from DOE since the time of USEC's 
establishment. In recent years, USEC's financial condition has 
deteriorated, due in part to decreased commercial demand for LEU and 
high production costs associated with the energy intensive GDP 
enrichment technology, which is more than 60 years old.[Footnote 4] 
USEC filed for Chapter 11 bankruptcy protection in March 2014 in order 
to strengthen its balance sheet and replace notes maturing in October 
2014 with equity and new notes maturing in 5 years and extendable to 
10 years.[Footnote 5] The bankruptcy placed in question the future of 
next-generation enrichment technology called the American Centrifuge, 
which USEC has spent $2.5 billion developing at a site in Ohio and 
recently demonstrated under a cooperative agreement with DOE.[Footnote 
6] If successfully deployed, the American Centrifuge Plant (ACP)--the 
facility where the American Centrifuge technology is currently 
operating in a demonstration environment--would again provide the 
United States with U.S.-developed technology to enrich uranium. 
[Footnote 7] In the wake of USEC's bankruptcy filing in April 2014, 
the Secretary of Energy tasked its Oak Ridge National Laboratory with 
maintaining the operability of the centrifuges and associated 
technology, while DOE assesses options for meeting DOE's national 
security needs for enriched uranium and preserves the option of 
commercial deployment. While DOE has taken steps to maintain the 
operability of the ACP in the interim, it is uncertain what the 
department's future plans are for the ACP and the extent to which the 
plant may also be used for commercial purposes. 

DOE has two primary national security needs for enriched uranium: (1) 
obtaining LEU, which is primarily needed for the production of tritium 
and (2) obtaining highly enriched uranium (HEU), which is needed to 
fuel the reactors that power the U.S. Navy's aircraft carriers and 
submarines. With respect to LEU used for the production of tritium, 
tritium is a key component of nuclear weapons, and an assured source 
of tritium is necessary to maintain the U.S. nuclear weapons 
stockpile.[Footnote 8] However, tritium has a relatively short half-
life of 12 years and decays at a rate of about 5.5 percent per year. 
As long as the United States relies on nuclear weapons, DOE requires a 
continuous supply of LEU in order to produce tritium. Tritium is 
produced as a by-product in nuclear reactors, and DOE's National 
Nuclear Security Administration (NNSA) supports a program that 
produces tritium as a primary product to collect enough tritium to 
meet stockpile demands.[Footnote 9] With respect to HEU, the United 
States does not currently have a domestic capability to enrich HEU. 
Instead, national security needs are met using an inventory of HEU 
that was enriched prior to 1992.[Footnote 10] 

According to DOE, USEC has been the only potential commercial supplier 
of enrichment services for LEU that could be used for the production 
of tritium.[Footnote 11] DOE has asserted that international 
agreements to which the United States is a party prohibit the use of 
LEU for military purposes, such as tritium production, if the LEU was 
enriched by a facility that relies on technology subject to these same 
prohibitions.[Footnote 12] Under the "peaceful use" provisions of 
these agreements, LEU produced at these facilities can only be used 
for peaceful, nonexplosive purposes. In other words, the LEU carries 
an obligation to the foreign countries that exported the technology 
that it will only be used for peaceful purposes. For example, 
obligated LEU cannot be used in a bomb or be further enriched to HEU 
for other military purposes. DOE has further asserted that obligated 
LEU cannot be used to make tritium for military purposes.[Footnote 13] 

Since USEC ceased enrichment at the Paducah GDP in May 2013, and the 
United States lost what DOE considered to be its sole supplier of 
enrichment services for national security purposes, Congress has 
raised questions about a future source of unobligated LEU for tritium 
production. Only one commercial facility currently enriches uranium in 
the United States, and it is operated by URENCO--a consortium of 
companies owned or controlled by the British and Dutch governments and 
by two German utilities. The LEU produced by URENCO is enriched using 
foreign technology and is subject to a peaceful use provision in an 
international agreement between the United States and Germany, the 
Netherlands, and the United Kingdom. In addition to the ACP, three 
other enrichment facilities are planned for construction in the United 
States, but these too will use foreign technology and will be subject 
to peaceful use provisions contained in other international 
agreements.[Footnote 14] Under the Consolidated Appropriations Act of 
2014,[Footnote 15] DOE was directed to submit a tritium and enriched 
uranium management plan to Congress by June 30, 2014, that includes, 
among other things, an assessment of the national security demand for 
tritium and LEU through 2060, as well as an analysis of alternative 
technologies that are planned or available to meet the supply needs 
for tritium and enriched uranium for national security purposes. 
[Footnote 16] As DOE assesses future options for obtaining unobligated 
LEU to produce tritium, one option may be to pay the costs to operate 
the ACP--potentially hundreds of millions of dollars a year. In this 
context, you asked us to review the peaceful use provisions in 
international agreements pertaining to enrichment facilities using 
foreign technology in the United States, particularly as they pertain 
to the production of tritium.[Footnote 17] This report examines (1) 
the extent to which DOE has adhered to its practice of using only 
unobligated LEU to meet national security needs for tritium and (2) 
the basis for DOE's practice of using only unobligated LEU to meet 
national security needs for tritium. 

To determine the extent to which DOE has adhered to its practice of 
using only unobligated LEU to meet national security needs for 
tritium, we reviewed DOE and NNSA documents. In addition, we 
interviewed officials from DOE, NNSA, the Department of State, and the 
Tennessee Valley Authority (TVA)--which produces tritium through an 
interagency agreement with DOE. We also reviewed documents and 
interviewed officials from the Nuclear Regulatory Commission (NRC). To 
determine the basis for DOE's practice for using unobligated LEU to 
meet national security needs for tritium, we reviewed DOE and NNSA 
documents and assessed relevant international agreements pertaining to 
the transfer of enrichment technology into the United States and the 
extent to which these agreements compel DOE to use exclusively 
unobligated LEU for meeting national security needs. We interviewed 
officials from NNSA, TVA, and the Department of State, as well as 
representatives from USEC and URENCO.[Footnote 18] We also reviewed 
two analyses completed by the Congressional Research Service, 
including one on peaceful use restrictions applicable to uranium 
enriched at the URENCO facility, and we interviewed staff regarding 
their conclusions. To inform both objectives, we conducted site visits 
to the ACP in Piketon, Ohio; the Paducah GDP in Paducah, Kentucky; and 
DOE's Oak Ridge Office and NNSA's Y-12 National Security Complex in 
Oak Ridge, Tennessee. Additional details on our objectives, scope, and 
methodology can be found in appendix I. 

We conducted this performance audit from January 2013 to October 2014 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our 
findings and conclusions based on our audit objectives. 

Background: 

This section describes international agreements and peaceful use 
restrictions; existing and proposed enrichment facilities in the 
United States that use or will use foreign technology; the U.S. 
involvement in the markets that comprise the nuclear fuel cycle; and 
tritium production. 

International Agreements and Peaceful Use Restrictions: 

The United States is a party to various treaties and international 
agreements that promote the peaceful use of nuclear energy. As 
detailed below, these include the Treaty on the Non-Proliferation of 
Nuclear Weapons (NPT), peaceful nuclear cooperation agreements, and 
other international agreements that restrict the use of certain 
foreign nuclear technology and material to peaceful purposes. 

* The NPT, which entered into force in 1970, distinguishes between 
nuclear-weapon and nonnuclear-weapon states.[Footnote 19] It is 
considered the cornerstone of the nuclear nonproliferation regime and 
aims to prevent the proliferation of nuclear weapons to nonnuclear-
weapon states, facilitate the use of nuclear energy for peaceful 
purposes, and promote nuclear disarmament. Membership in the NPT 
includes 190 countries, including the United States, which makes it 
the largest arms control treaty in the world. 

* Section 123 of the Atomic Energy Act of 1954, as amended (AEA), 
establishes the conditions for civilian nuclear cooperation between 
the United States and foreign partners. The United States has 21 
nuclear cooperation agreements ("123 agreements") in force with 18 
countries, the International Atomic Energy Agency, the European Atomic 
Energy Community (EURATOM), and Taiwan.[Footnote 20] Peaceful nuclear 
cooperation agreements must include, among other things, peaceful use 
provisions that guarantee that material and equipment transferred from 
the United States to its foreign partners, as well as certain material 
produced through the use of such material and equipment, not be used 
for any nuclear explosive device, for research on or development of 
any nuclear explosive device, or for any other military purpose. 

* Three other international agreements specifically address the 
importation of uranium enrichment technology into the United States. 
[Footnote 21] They include peaceful use provisions that require that 
transferred technology and certain material produced through the use 
of such technology be used only for peaceful purposes. While each 
agreement contains peaceful use provisions, the specific language 
differs among the agreements. 

Existing and Proposed Enrichment Facilities in the United States That 
Use or Will Use Foreign Technology: 

There are four enrichment facilities that are currently operational or 
planned for operation in the United States that use or will use 
foreign technology. All four facilities operate or will operate under 
one of the three international agreements described above, which 
include peaceful use provisions, or obligations, on the technology and 
on certain material produced through the use of that technology. Each 
facility is briefly described below. See appendix II for the peaceful 
use language contained in each agreement. 

* URENCO operates the only enrichment facility that is currently 
operating in the United States at a plant near Eunice, New Mexico. The 
URENCO USA plant is owned and operated by Louisiana Energy Services 
(LES), a subsidiary of URENCO. The URENCO centrifuge technology was 
initially developed in the 1960s as part of a joint venture between 
the United Kingdom, Germany, and the Netherlands. Use of this 
centrifuge technology in the United States is addressed by the 
Agreement between the Three Governments of the United Kingdom of Great 
Britain and Northern Ireland, the Federal Republic of Germany and the 
Kingdom of the Netherlands and the Government of the United States of 
America regarding the Establishment, Construction and Operation of a 
Uranium Enrichment Installation in the United States, hereafter 
referred to as the "Washington Agreement."[Footnote 22] The Treaty of 
Almelo[Footnote 23] laid out the framework for the three countries to 
collaborate on the development and use of gas centrifuge uranium 
enrichment technology under one entity--which came to be known as 
URENCO.[Footnote 24] The foreign governments and companies that own 
URENCO have expressed interest in selling the company on separate 
occasions since fall 2011. 

* AREVA has proposed building an enrichment facility, known as Eagle 
Rock, near Idaho Falls, Idaho, and in October 2011 received a license 
from the NRC to construct and operate the facility.[Footnote 25] AREVA 
is 90 percent owned by the French government and operates 
internationally. At Eagle Rock, AREVA plans to build an enrichment 
facility that uses the same gas centrifuge technology developed by 
URENCO.[Footnote 26] The facility will be operated under the Agreement 
between the Governments of the United States of America and the Four 
Governments of the French Republic, the United Kingdom of Great 
Britain and Northern Ireland, the Kingdom of the Netherlands, and the 
Federal Republic of Germany regarding the Establishment, Construction 
and Operation of Uranium Enrichment Installations using Gas Centrifuge 
Technology in the United States of America, hereafter referred to as 
the "Paris Agreement."[Footnote 27] 

* Global Laser Enrichment (GLE) has proposed building an enrichment 
facility in Wilmington, North Carolina, and in September 2012 received 
a license from NRC to construct and operate the facility. GLE is a 
joint venture by General Electric, Hitachi, and Cameco.[Footnote 28] 
GLE plans to utilize an Australian uranium enrichment technology known 
as Separation of Isotopes by Laser Excitation (SILEX), which is still 
in development for commercial demonstration. The facility, if 
constructed, will be operated under the Agreement for Cooperation 
Between Australia and the United States of America Concerning 
Technology for the Separation of Isotopes of Uranium by Laser 
Excitation, hereafter known as the "SILEX 123 Agreement"--a peaceful 
nuclear cooperation agreement.[Footnote 29] 

* In 2013, GLE also proposed building an enrichment facility at the 
site of the former Paducah GDP near Paducah, Kentucky. This facility 
would also use SILEX laser enrichment technology and operate under the 
SILEX 123 Agreement, but this facility has not yet been licensed by 
the NRC.[Footnote 30] 

Figure 1 shows the existing or planned locations of these four foreign-
owned enrichment facilities, as well as the location of the planned 
ACP and the now-closed USEC and DOE facilities. 

Figure 1: Uranium Enrichment Facilities Closed, Currently Operating, 
or Planned for Operation in the United States: 

[Refer to PDF for image: illustrated U.S. map] 

Currently operational: 
URENCO. 

Planned or proposed: 
ACP, Ohio; 
AREVA, Idaho; 
GLE, Kentucky; 
GLE, North Carolina. 

Closed: 
Oak Ridge GDP, Tennessee; 
Paducah GDP, Kentucky; 
Portsmouth GDP, Ohio. 

Abbreviations: 
ACP: American Centrifuge Plant; 
GDP: Gaseous Diffusion Plant; 
GLE: Global Laser Enrichment. 

Sources: GAO analysis of Nuclear Regulatory Commission, USEC Inc., and 
Department of Energy documents; Map Resources (map). GAO-15-123. 

Note: DOE ceased enrichment at its Oak Ridge GDP in 1985 as a result 
of decreased demand for enrichment services. In 1993, the government 
leased the Portsmouth and Paducah GDPs to the United States Enrichment 
Corporation, which became a subsidiary of USEC Inc., created in 1998 
at the time of privatization. USEC ceased enrichment activities at the 
Portsmouth GDP in 2001 also because of decreased demand for enrichment 
services and the high costs of operating the GDP, and it ceased 
enrichment activities at the Paducah GDP in 2013. The ACP is currently 
being maintained in operating status. 

[End of figure] 

U.S. Involvement in the Nuclear Fuel Cycle Markets: 

According to DOE documents, all stages of the nuclear fuel cycle--the 
series of steps necessary to produce LEU fuel for nuclear reactors 
(see figure 2)--must use unobligated natural uranium and unobligated 
processing technology if the resulting LEU will be used for national 
security purposes. Several facilities from the fuel cycle stages 
operate in the United States; however, the U.S. commercial nuclear 
industry is highly dependent on imports of mined uranium concentrates 
and uranium conversion and enrichment services. 

Figure 2: The Nuclear Fuel Cycle: 

[Refer to PDF for image: illustration] 

1. Mining: Uranium ore. 

2. Milling: Uranium oxide (yellowcake or U3O8). 

3. Conversion: Uranium hexafluoride (UF6). 

4. Enrichment[A]: Low-enriched uranium: 
* Tails Depleted uranium: 
- Storage; 
- Tails re-enrichment[B]. 

5. Fuel fabrication: Uranium dioxide. 

6. Reactors: Commercial reactors for energy production: 
* Tennessee Valley Authority (TVA): 
- Tritium: TVA produces tritium. 

7. Spent fuel. 

Sources: GAO analysis of International Atomic Energy Agency, Nuclear 
Regulatory Commission, Congressional Research Service, Department of 
Energy, and TVA documents. GAO-15-123. 

[A] The enrichment process results in two principal products: (1) 
enriched uranium hexafluoride and (2) leftover "tails" of uranium 
hexafluoride, also called depleted uranium because the material is 
depleted in uranium-235 compared with natural uranium. 

[B] Tails can only be re-enriched once, if at all, after which their 
uranium content is too depleted to make further re-enrichment 
economically feasible using current centrifuge and gaseous diffusion 
technology. 

[End of figure] 

* Mining: The nuclear fuel cycle begins with the mining of uranium. 
Uranium is relatively abundant in the earth's crust and can be found 
by detecting the presence of radioactivity from the air, from the 
earth's surface, or by excavation. The United States had a large 
uranium mining industry in the 1950s, but the number of domestic mines 
declined over time, falling from a peak of over 250 in 1980 to 11 in 
2012, according to the U.S. Energy Information Administration. In 
2012, the United States produced about 2.7 percent of the world's 
mined uranium, compared with Kazakhstan (36.5 percent); Canada (15 
percent); and Australia (12 percent), according to the World Nuclear 
Association. 

* Milling and conversion: After mining, the ore goes to a milling 
facility, where it is crushed and concentrated. There is currently 
only one uranium mill in operation in the United States. It is located 
in Utah and is operated by a Colorado-based subsidiary of a Canadian 
company.[Footnote 31] The uranium milled at this facility is purchased 
by utility companies and then shipped to a conversion facility. At the 
conversion facility, the uranium is combined with fluorine gas to 
produce uranium hexafluoride, a powder at room temperature and a gas 
when heated. At present, there is one uranium hexafluoride conversion 
facility in the United States that uses U.S.-developed technology, 
which is located in Illinois. 

* Enrichment: The next step is the enrichment process, which entails 
concentrating the uranium-235--the isotope of uranium that undergoes 
fission to release enormous amounts of energy--in the uranium 
hexafluoride. Through enrichment, uranium-235 atoms are increased to 3-
5 percent, the level required for fuel used in most U.S. commercial 
power plants.[Footnote 32] In 1993, the United States produced more 
than 90 percent of the enriched uranium used in U.S. nuclear reactors 
but, by 2008, only 15 percent was domestically produced. Currently, 
URENCO operates the only commercial enrichment facility operating in 
the United States, and it uses European-developed technology. As 
previously noted, there is currently no commercial facility operating 
that uses U.S.-developed technology to enrich uranium in the United 
States. 

* Fuel fabrication: The enriched uranium is then shipped to a fuel 
fabrication facility. At the fuel fabrication facility, the enriched 
uranium is converted to uranium dioxide powder and formed into ceramic 
pellets about the size of a pencil eraser. The pellets are loaded into 
metal tubes that are bundled together to form fuel assemblies, which 
are typically about 5 to 10 inches square and are 12 to 14 feet long. 
The fuel assemblies are then shipped to nuclear power plants. 
According to the NRC, several nuclear fuel fabrication facilities are 
licensed to operate in the United States.[Footnote 33] 

Tritium Production: 

In 1998, DOE sought to develop tritium production technology because 
the last of its reactors used for tritium production was shut down in 
1988 due to safety concerns. Between 1988 and 1998, DOE was able to 
meet its tritium requirements by harvesting and recycling it from 
dismantled nuclear warheads, as the United States decreased the size 
of its nuclear arsenal. However, because of tritium's short half-life, 
DOE could not meet its long-term tritium needs in this manner 
indefinitely and established the Commercial Light Water Reactor 
Program in 1996 to resume new tritium production; the program was 
renamed the Tritium Readiness Subprogram in 2003.[Footnote 34] DOE 
ultimately decided to produce tritium through an interagency agreement 
with TVA at the Watts Bar and Sequoyah commercial nuclear reactors, 
which are owned and operated by TVA, a government corporation, and 
produce electricity as their principal purpose.[Footnote 35] 

Small quantities of tritium are normal by-products of the process 
nuclear power plants use to generate electricity. Nuclear power plants 
routinely and safely release diluted concentrations of water 
containing tritium. For DOE's (now NNSA's) tritium production program, 
TVA takes several steps to produce tritium for NNSA's use. 
Specifically, to produce tritium, stainless steel rods containing 
lithium aluminate clad in zirconium--called tritium-producing burnable 
absorber rods (TPBAR)--are irradiated in the Watts Bar 1 reactor. 
Instead of the ceramic rods containing boron that are inserted in most 
U.S. commercial nuclear reactors--as a subset of the fuel assembly 
rods, most of which contain nuclear fuel--TPBARs are inserted into the 
Watts Bar 1 reactor core during refueling and are irradiated for 
approximately 18 months. They are then removed and transported to 
DOE's Tritium Extraction Facility at the Savannah River Site in South 
Carolina, where they are processed in a specialized facility to 
extract and then prepare the tritium for nuclear warheads. 

Under the interagency agreement between DOE and TVA, TVA must use 
unobligated LEU in its reactors that are used to produce tritium for 
NNSA. It is the responsibility of DOE/NNSA to ensure that TVA can 
obtain unobligated fuel to support tritium production, and DOE/NNSA is 
responsible for reimbursing TVA for any additional costs associated 
with this exclusivity.[Footnote 36] According to DOE, unobligated LEU 
has a premium--that is, it costs more than other LEU that may carry 
obligations from other countries--because the gaseous diffusion 
technology USEC had been using to enrich uranium was older, less 
energy efficient, and more expensive than the centrifuge technology 
used by USEC's main foreign competitors. 

According to DOE's November 2013 draft Tritium and Enriched Uranium 
Management Plan through 2060, DOE's tritium production needs can be 
met using unobligated LEU inventories that will last through the mid-
2030s. These inventories include the final deliveries of unobligated 
LEU from three sources (see figure 3): 

* TVA's contract with USEC: TVA signed a contract with USEC in 
December 1999 to purchase unobligated LEU from USEC through the middle 
of fiscal year 2015. 

* The 2012 Depleted Uranium Enrichment Project: In May 2012, DOE 
initiated a series of uranium transfers between multiple parties to 
ensure availability of a supply of unobligated LEU for TVA to purchase 
from an energy company starting in mid-2015 through 2022. DOE expects 
that this will result in up to 15 years of unobligated LEU for tritium 
production, assuming the use of a single TVA reactor.[Footnote 37] 

* Mixed Oxide Fuel Backup LEU Inventory Project: DOE maintains a 
reserve of unobligated LEU from an NNSA HEU disposition program 
referred to as the Mixed Oxide Backup LEU Inventory Project. DOE plans 
to use this unobligated LEU directly or for obligation exchanges--the 
process of swapping obligated uranium for similar types and amounts of 
unobligated uranium--to obtain additional LEU suitable for tritium 
production. DOE expects that this will provide about 6 years of 
unobligated LEU for tritium production, assuming the use of a single 
TVA reactor. 

Figure 3: Planned, Potential, and Backup Supplies of Unobligated Low-
Enriched Uranium for Tritium Production, 2014 to 2040: 

[Refer to PDF for image: timeline] 

Fiscal years 2014-2016: 
TVA-USEC contract: 
Planned supply: 3 years. 

Fiscal years 2017-2024: 
LEU secured by DOE in the 2012 Depleted Uranium Enrichment Project: 
Planned supply: 8 years. 

Fiscal years 2025-2030: 
Mixed oxide backup LEU: 
Planned supply: 6 years. 

Fiscal years 2031-2035: 
LEU secured by DOE in the 2012 Depleted Uranium Enrichment Project: 
Planned supply: 4.5 years. 

LEU from a new, future U.S. enrichment facility: 
Fiscal years 2014-2030: 
DOE supports the development of a future domestic enrichment 
capability (ACP or other); 
Fiscal years 2031-2040: 
Ongoing supply (potential supply). 

LEU from downblended HEU: 
Fiscal years 2031-2040: 
Downblend as needed (backup supply). 

Watts Bar Unit 1 reactor reload: 
FY's: 2014, 2015; 2017; 2018; 2020; 2021; 2023, 2025; 2026; 2028; 
2029; 2031; 2032; 2035; 2037; 2038; 2040. 

Abbreviations: 
ACP: American Centrifuge Plant; 
DOE: Department of Energy; 
HEU: highly enriched uranium; 
LEU: low-enriched uranium; 
TVA: Tennessee Valley Authority; 
USEC: USEC Inc. 

Sources: GAO analysis of DOE and National Nuclear Security 
Administration (NNSA) documents and interpretation of a graphic from 
DOE's Fiscal Year 2015 Stockpile Stewardship and Management Plan. 
GAO-15-123. 

Notes: The low-enriched uranium supply projections are based on TVA 
using one nuclear reactor to produce tritium. 

[End of figure] 

According to DOE, the LEU secured by DOE in the 2012 Depleted Uranium 
Enrichment Project will result in up to 15 years of unobligated LEU 
for tritium production. DOE's fiscal year 2015 Stockpile Stewardship 
and Management Plan only details the use of 12.5 years of LEU from the 
Depleted Uranium Enrichment Project for tritium production. 

However, this plan also notes that, if it becomes necessary to use 
more than one TVA nuclear reactor to meet DOE's tritium production 
goals, the current LEU inventory intended for tritium production could 
be exhausted by the mid-2020s. Despite redesigns of several components 
of the TPBARs, tritium has been leaking--or "permeating"--out of the 
TPBARs at higher-than-expected rates into the Watts Bar reactor's 
coolant water. As a result, TVA has had to limit the number of TPBARs 
irradiated per cycle to keep the total amount of tritium released into 
the reactor coolant below regulatory limits, thereby resulting in 
significantly lower tritium production than originally planned. NNSA 
and TVA have consequently been developing plans to seek a license 
amendment to irradiate increased numbers of TPBARs, which could result 
in a need to expand tritium production to TVA's Sequoyah reactor. Such 
an expansion would essentially double unobligated LEU consumption, 
using the unobligated LEU supply at an accelerated rate. 

DOE is currently analyzing options for meeting national security needs 
for LEU after the supply sources noted above have been exhausted. Such 
options could include utilizing the American Centrifuge technology, 
developing a new domestic enrichment capability, or downblending HEU--
which is the process of mixing HEU with either depleted or natural 
uranium, or LEU, to produce a new product that has a lower 
concentration of uranium-235. In the absence of a domestic enrichment 
capability, DOE documents state that it would consider downblending 
HEU only as a backup plan because most of the HEU it possesses is 
currently dedicated to other national security missions, such as for 
naval reactors.[Footnote 38] 

DOE Has Only Used Unobligated LEU to Meet National Security Needs for 
Tritium Production: 

DOE uses only unobligated LEU to meet national security needs for 
tritium production and has taken several steps to adhere to this 
practice. In several key DOE documents--dating back to 1998 and as 
recent as 2014--that we reviewed, DOE has stated that tritium will 
only be produced using unobligated LEU. For example, in its fiscal 
year 2011 draft report, National Strategic Plan for Nuclear Materials, 
DOE stated that tritium production requires a supply of domestic-
origin LEU fuel not subject to the peaceful use restrictions applied 
to foreign-origin uranium. In addition, in its fiscal year 2015 
Stockpile Stewardship and Management Plan, DOE discussed the various 
sources of unobligated LEU available to support tritium production. 
Numerous senior DOE and NNSA officials also consistently told us in 
interviews that tritium can only be produced using unobligated LEU. 
Finally, in letters to congressional representatives, former Secretary 
of Energy Steven Chu and other senior DOE officials have indicated 
that unobligated LEU is needed to support tritium production. In 
certain cases, only one supplier in the nuclear fuel cycle is 
available to provide unobligated services. For example, there is only 
one conversion facility that uses U.S. technology and only one milling 
company that uses U.S. technology.[Footnote 39] 

In addition, for over six decades, DOE has taken a number of steps to 
ensure that only unobligated LEU is used for tritium production for 
national security purposes, as described in the following examples: 

* To secure and develop a domestic supply of uranium for the nation's 
defense needs, beginning in 1948, the U.S. Bureau of Land Management 
withdrew certain uranium-rich land from the public domain and reserved 
it for the use of DOE's predecessor agency, the Atomic Energy 
Commission. Through this land, DOE has ensured that natural uranium, 
domestic in origin, and therefore unobligated, is available to be 
mined for national security purposes. 

* DOE's 1999 interagency agreement with TVA for the production of 
tritium states that any reactor core that is irradiating TPBARs must 
contain unobligated fuel.[Footnote 40] According to this agreement, 
DOE is responsible for ensuring that TVA can obtain unobligated LEU to 
support tritium production. As previously discussed, DOE is 
responsible for reimbursing TVA for any additional costs associated 
with using unobligated LEU, as obligated LEU is generally less 
expensive. 

* DOE has worked with USEC to help ensure that the American Centrifuge 
technology and its components are domestic in origin. The ACP is 
intended to produce LEU both for tritium production and potentially 
for commercial nuclear power plants. According to USEC officials, 100 
percent of the centrifuge components are domestic or unencumbered, 
[Footnote 41] and a few peripheral support systems contain foreign 
components, but steps have been taken to bypass the foreign components 
that carry obligations if the plant is used to enrich LEU for use in 
tritium production. For example, USEC procured foreign-produced feed 
and withdrawal system components for the American Centrifuge 
technology. USEC officials demonstrated to us a specific work-around 
that will enable it to bypass the foreign equipment should the ACP be 
used to produce LEU for national security purposes.[Footnote 42] 

* In May 2012, in anticipation of USEC ceasing enrichment operations 
at the Paducah GDP, DOE initiated a complex series of transactions to 
ensure availability of a supply of unobligated LEU from USEC for 
future tritium production. The transactions involved DOE transferring 
U.S. origin depleted uranium tails to an energy company, which then 
contracted with USEC to enrich those tails to LEU. The energy company 
entered into an agreement with TVA to sell the majority of the 
resulting unobligated LEU to TVA starting in 2015, which TVA then 
plans to use to produce tritium for NNSA. DOE estimates that this 
series of transactions, known as the 2012 Depleted Uranium Enrichment 
Project, will provide up to 15 years of unobligated LEU for tritium 
production. According to DOE, this, along with other potential 
available sources, such as the Mixed Oxide Backup LEU Inventory 
Project, will help ensure a supply of unobligated LEU that will last 
through the mid-2030s, depending upon whether one or two reactors are 
needed to use this unobligated LEU to produce NNSA's annual tritium 
requirements. 

* DOE has used a practice called an "obligation exchange"--or flag 
swapping--in which DOE may swap obligated uranium with itself, or with 
other parties such as NRC regulated entities, for similar types and 
amounts of unobligated uranium (e.g., 1 ton of obligated natural 
uranium for 1 ton of unobligated natural uranium). Because uranium is 
considered by the industry to be fungible--that is, being of a nature 
that is easily exchangeable--the obligation exchange is made on the 
uranium inventory records, and no physical material is actually moved. 
DOE has used obligation exchanges in the past to ensure that LEU--and 
all of the processes that uranium undergoes before it is in a form 
useful for tritium production--is preserved as unobligated. For 
example, if DOE were to use LEU from the Mixed Oxide Backup LEU 
Inventory Project as discussed above, then it could pursue flag 
swapping as a way to ensure that this additional LEU would not carry 
obligations and would therefore be suitable for tritium production. 

DOE's Practice of Using Unobligated LEU for Tritium Production Is 
Based on a Mix of Legal and Policy Considerations, but a Key 
Assumption Underlying This Practice Has Changed: 

According to DOE and the Department of State, DOE's practice of using 
exclusively unobligated LEU to meet national security needs for 
tritium production is based on both legal and policy considerations, 
including the U.S. commitment under international agreements that 
contain peaceful use provisions and U.S. nonproliferation policy 
goals. We found that there are three key international agreements that 
address foreign uranium enrichment facilities currently operating or 
planned for future operation in the United States. DOE believes that 
such agreements must be interpreted in light of U.S. nonproliferation 
policy and goals--including preventing other countries from producing 
tritium from U.S.-obligated uranium--and State officials told us that 
to construe the Washington and Paris Agreements regarding the 
permissibility of tritium production without regard to U.S. 
nonproliferation policy and goals could be detrimental. We found that 
only one of the agreements explicitly addresses by-product material 
such as tritium and that this agreement likely prohibits the 
production of tritium for any nuclear explosive device or for any 
military purpose. The other two agreements do not explicitly address 
whether only unobligated LEU may be used for tritium production; they 
are silent on this point. However, a key assumption underlying the 
decision to rely exclusively on unobligated LEU--that the United 
States has an ample supply of unobligated LEU--has changed with USEC 
ceasing enrichment operations and the uncertain future of the ACP. 
This change has led some parties to question whether a change in DOE's 
practice could result in the United States obtaining LEU for national 
security purposes from other enrichment facilities, such as URENCO, 
and avoid the potentially significant expense of paying the costs to 
operate the ACP. 

DOE's Practice of Using Unobligated LEU Is Based on a Mix of Legal and 
Policy Considerations: 

DOE documents state and officials from DOE and the Department of State 
told us that DOE's practice of using only unobligated LEU for the 
production of tritium is based on both legal and policy 
considerations. For example, DOE's November 2013 draft Tritium and 
Enriched Uranium Management Plan through 2060 links its practice to 
both law and policy when it states that, "U.S. nuclear 
nonproliferation policy and U.S. international agreements for peaceful 
uses of nuclear materials require that any nuclear weapons materials 
be produced using materials, technologies, production equipment, and 
infrastructure that is free of foreign peaceful use restrictions." 

DOE References Legal Considerations for Its Practice; Only One of the 
Three International Agreements We Reviewed Explicitly Addresses By-
product Material Such as Tritium: 

Various DOE documents state that international agreements require that 
it use exclusively unobligated LEU for tritium production. DOE and 
Department of State officials explained that the United States has 
nonproliferation obligations under agreements to which the United 
States is a party that pertain to uranium enrichment facilities and 
associated technology imported into the United States. As discussed 
above, these agreements contain peaceful use provisions that require 
that transferred equipment and certain material produced through the 
use of such equipment be used only for peaceful, nonexplosive, 
purposes. The Executive Branch has made public its interpretation that 
the SILEX 123 agreement does not allow the use of SILEX technology for 
tritium production.[Footnote 43] However, we did not identify any 
public interpretation of the peaceful use restrictions of the 
Washington Agreement or the Paris Agreement with respect to tritium 
production for national security purposes. State officials noted that 
primary responsibility within the executive branch for the 
interpretation of U.S. obligations under an international agreement 
falls to the Secretary of State. State officials indicated that 
"concerns about this issue [specifically interpreting the peaceful use 
restrictions in the Washington Agreement] have been raised within the 
executive branch." 

As noted above, Section 123 of the AEA requires a guarantee that U.S. 
exports and special nuclear material used in or produced through those 
exports will not be used for any nuclear explosive device, or for 
research on or development of any nuclear explosive device, or for any 
military purpose. Department of State officials told us that it would 
be inconsistent to read the peaceful use provisions implementing that 
requirement in U.S. peaceful nuclear cooperation agreements to 
prohibit the use of nuclear material covered by such agreements to 
produce tritium for weapons, while at the same time construing the 
substantively similar peaceful uses provision of the Washington 
Agreement to permit use of the LEU covered by that agreement to 
produce tritium for weapons, even if the specific language of that 
agreement does not explicitly reference use of special nuclear 
material for production or use of by-product material. 

We analyzed the three key agreements that specifically address the 
importation of uranium enrichment technology into the United States--
the Washington Agreement, the Paris Agreement, and the SILEX 123 
Agreement, which address the URENCO facility, the planned Eagle Rock 
facility, and the planned GLE facility, respectively--and we found 
that only one of the three international agreements we reviewed 
explicitly addresses by-product material, which includes tritium. 
However, DOE interprets and applies these agreements through the lens 
of U.S. nonproliferation goals, and thus it has consistently used only 
unobligated LEU for tritium production.[Footnote 44] 

The peaceful use provisions of the Washington and Paris Agreements are 
substantially the same. They provide as follows: 

Any [technology], equipment and components transferred into the United 
States subject to this Agreement, [the facility itself and any nuclear 
material in the facility], any special nuclear material produced 
through the use of such technology, any special nuclear material 
produced through the use of such special nuclear material, and any 
data generated at [the facility which] is designated Restricted Data 
while such data is under the jurisdiction of the United States 
Government or [applicable foreign governments] shall only be used for 
peaceful, non-explosive purposes.[Footnote 45] 

Two clauses from these provisions are specifically relevant to this 
analysis. The first provides that special nuclear material produced 
through the use of transferred enrichment technology must only be used 
for peaceful, nonexplosive purposes. We refer to this clause as "the 
first clause." The second clause provides that special nuclear 
material produced through the use of such special nuclear material 
must only be used for peaceful, nonexplosive purposes. We refer to 
this clause as "the second clause." "Special nuclear material" as 
defined in these two agreements includes LEU and plutonium, but not 
tritium.[Footnote 46] Accordingly, these agreements explicitly 
prohibit (1) using the technology to enrich uranium for nuclear 
weapons and (2) using uranium enriched by the technology to produce 
additional special nuclear material, such as plutonium, for nuclear 
weapons. Since tritium is not a special nuclear material, it is 
unclear whether using obligated LEU to produce tritium for nuclear 
weapons is prohibited under the Washington and Paris Agreements. 

There are alternative ways to interpret the peaceful use provisions in 
the Washington and Paris Agreements with regard to the production of 
tritium. One alternative reflects a narrower reading of the agreements 
just to prohibit (1) the use of obligated uranium in weapons or (2) 
the use of obligated uranium to produce additional special nuclear 
material for weapons. Under this reading, the breadth of the first 
clause--which limits the use of uranium enriched by the technology to 
peaceful purposes--is limited by the second clause, which specifically 
prohibits the production of additional special nuclear material from 
the uranium enriched by the technology. Arguably the imposition of 
limits only on the use of special nuclear material derived from 
obligated uranium suggests that no limits on other types of material, 
such as by-product material like tritium, are to be inferred. 
Furthermore, the second clause of the provision arguably serves no 
purpose in the text if it does not limit the breadth of the first 
clause because the first clause on its own would already prohibit the 
production of special nuclear material from the obligated uranium, 
along with all other military purposes. Under this reading, obligated 
uranium may not be used directly in weapons and may not be used to 
produce additional special nuclear material, such as plutonium, for 
weapons. The agreements are silent as to tritium production. 

Another interpretation reflects a broader reading of the agreements, 
to prohibit the use of obligated uranium for any military purpose. 
Under this reading, the scope of the first clause is not limited by 
the second clause; rather, the second clause simply emphasizes a 
particular prohibition on the use of uranium enriched by the 
technology. Under this reading, obligated uranium may not be used for 
any non peaceful purpose, specifically including the production of 
additional special nuclear material and more generally including the 
production of any other weapons material, such as by-product material 
like tritium.[Footnote 47] This reading is consistent with DOE's long-
standing practice of using only unobligated uranium for the production 
of tritium for nuclear weapons. 

The peaceful use provision of the third agreement--the SILEX 123 
Agreement--differs somewhat from those of the Washington and Paris 
Agreements. It provides as follows: 

Sensitive nuclear facilities and major critical components subject to 
this Agreement and any material used in them or produced through their 
use, and Restricted Data and sensitive nuclear technology transferred 
pursuant to this Agreement, shall not be used for any nuclear 
explosive device, for research on or development of any nuclear 
explosive device, or for any military purpose. 

This provision prohibits the use of the transferred enrichment 
technology and any material produced through their use for any nuclear 
explosive device or for any military purpose. "Material" is defined by 
the agreement to include enriched uranium, plutonium, and by-product 
material, such as tritium.[Footnote 48] Accordingly, it prohibits 
using the technology to enrich uranium directly for nuclear weapons 
and likely also prohibits using obligated LEU for the subsequent 
production of other weapon materials such as plutonium and tritium. 
The presidential message transmitting the SILEX 123 agreement to 
Congress in 1999 supports this conclusion. Specifically, the letter 
stated that all material produced by and through the use of the SILEX 
technology would be precluded from use in U.S. nuclear weapons and 
naval nuclear propulsion programs and that, furthermore, "…all other 
military uses of this material, such as tritium production and 
material testing, would ... not be possible because of the assurances 
given to the Government of Australia." 

We sought to identify a range of readings of these three agreements 
because, while DOE has stated what it believes the agreements require, 
and the Department of State discussed various aspects of the 
agreements with us, we only identified a public interpretation of one 
of the agreements. If DOE and State were to put forth a formal 
interpretation, we note that courts have found that such 
interpretations are entitled to "great weight."[Footnote 49] In 
addition, it is the Administration's prerogative to make international 
nonproliferation policy,[Footnote 50] and State officials stated that 
their reading of the agreements is supported by the text of those 
agreements and consistent with U.S. nonproliferation policy interests, 
as described below, and is also reflected in nuclear cooperation 
agreements with other countries.[Footnote 51] Officials told us that 
they believe that U.S. practice is in keeping with that of other 
countries on this point and that the best way to ensure that U.S. 
policy is upheld with respect to our requirements on other countries 
is to interpret our obligations to other countries in a similar manner. 

U.S. Nonproliferation Policy Goals Call for DOE to Use Unobligated LEU 
for Tritium Production: 

According to DOE officials, U.S. policy considerations are furthered 
by having a domestic uranium enrichment capability for tritium 
production. Specifically, the United States has broad nonproliferation 
policy goals that build on its commitments under the NPT regarding the 
prevention of the proliferation of nuclear weapons.[Footnote 52] A 
1998 interagency report concluded that, in utilizing commercial light 
water reactors owned by TVA to produce tritium for defense purposes, 
to preserve the military-civilian dichotomy, DOE should fuel such 
reactors only with U.S. LEU fuel that was "unencumbered by peaceful 
use pledges." This report, entitled Interagency Review of the 
Nonproliferation Implications of Alternative Tritium Production 
Technologies under Consideration by the Department of Energy, was 
prepared following a review conducted by DOE, the Departments of State 
and Defense, and several other agencies to consider nonproliferation 
issues associated with using a commercial reactor--in this case, TVA's 
Watts Bar 1 and potentially Sequoyah reactors--to establish a new 
domestic means for tritium production.[Footnote 53],[Footnote 54] The 
interagency review determined that several factors could mitigate the 
potential impact of this path forward for tritium production on U.S. 
nonproliferation policy. First, the review concluded that using a 
commercial light water reactor was not prohibited by law or 
international treaty,[Footnote 55] and second that the use of a 
government-owned and -operated nuclear reactor (a TVA reactor) to 
produce an essential material for nuclear weapons contributed to 
minimizing a divergence from the separation between civil and military 
nuclear applications that evolved in the 1950s and 1960s.[Footnote 56] 
According to this review, the United States developed its commercial 
nuclear power industry beginning in the 1950s and by the mid-1960s had 
insulated that industry from producing materials for nuclear weapons. 
To mitigate concerns associated with using a commercial light water 
reactor for tritium production, the review concluded that DOE should 
exclusively use LEU that is unobligated by peaceful use restrictions 
to maintain the separation between the military and civilian sectors. 
Notably, this conclusion was predicated on an assumption that the 
United States had a sufficient supply of unobligated LEU available for 
use in the TVA reactor. Specifically, the report states that "there 
are ample supplies of unencumbered U.S. low enriched uranium to 
satisfy the fueling needs of a CLWR [commercial light water reactor] 
used for the production of tritium." On these bases, the 
administration determined that the nonproliferation policy issues 
associated with using a commercial light water reactor were manageable 
and that DOE should pursue this option for future tritium production, 
which it did. A subsequent 1999 Record of Decision for tritium supply 
and recycling incorporated the conclusion about using only unobligated 
uranium by indicating that production of tritium for nuclear weapons 
by commercial reactors "would be operated in compliance with 
international agreements imposing restrictions on use of transferred 
materials for peaceful purposes only, e.g., no reactor fuel or 
component transferred under these agreements would be used by any 
reactor making tritium."[Footnote 57] 

Officials from DOE, NNSA, and the Department of State outlined a 
number of additional policy considerations that inform DOE's 
interpretation of international agreements and its associated practice 
of using only unobligated LEU for the production of tritium, including 
the following. 

* In keeping with broad nonproliferation goals, NNSA officials told us 
that, if the United States did not require the use of unobligated LEU 
for its own national security purposes, it could cause an unintended 
"domino effect" abroad. For example, some countries purchase LEU on 
the open market, and the United States would not want to set a 
precedent for "blurring the line" between using LEU for energy 
purposes and using LEU for tritium production or other military 
purposes when the LEU carries broad peaceful use obligations. 
According to NNSA officials, the consequences of setting such a 
precedent could be severe. 

* Furthermore, according to State officials, they believe that 
permitting the use of foreign-obligated nuclear fuel for tritium 
production for nuclear weapons could encourage other countries to 
argue that they could use U.S.-obligated material for production of 
tritium for foreign military purposes under their peaceful nuclear 
cooperation agreements with the United States. 

* NNSA officials told us that, if DOE were to allow the use of LEU 
carrying broad peaceful use obligations for tritium production, then 
other countries that are a party to those agreements could also ask 
for concessions from the United States on other issues--such as for 
the United States to relax polices on the physical protection of 
nuclear materials, which could have severe negative consequences if 
the materials were not adequately protected from theft. 

* A May 2012 DOE briefing document states that having a domestic 
enrichment capability enhances the nation's nonproliferation 
credibility by assuring other nations that they do not need their own 
enrichment capability because the United States can provide them with 
LEU for the purpose of generating power. For example, officials told 
us that if the United States were to permanently lose its domestic 
enrichment capability, it could cause concern among other countries 
that the United States may not be able to ensure a guaranteed LEU 
supply, and other countries may then seek to acquire their own 
indigenous enrichment capability. This could, in turn, create new 
proliferation concerns, as the use of sensitive nuclear fuel 
enrichment technologies that are used to develop LEU for nuclear fuel 
could also be used for a clandestine nuclear weapons program.[Footnote 
58] 

* State officials also indicated that, from a policy perspective, as a 
nuclear weapon state, it would not be ideal for the United States to 
rely on a foreign entity to meet national security needs. 

* Finally, NNSA officials told us in written correspondence that 
having a domestic enrichment capability provides the United States 
with information about how uranium enrichment facilities operate, 
which could help the United States maintain both information and 
expertise to detect new proliferation programs in other countries. 

DOE and Department of State officials have cited these U.S. 
nonproliferation goals in response to questions about whether TVA 
could use LEU produced by URENCO LES for tritium production. 
Specifically, URENCO's corporate position has been that the Washington 
Agreement, under which its uranium enrichment facility in the United 
States operates, does not restrict the use of its LEU for the 
production of tritium. In 2006 and 2010, URENCO LES entered into a 
contract with TVA to provide LEU for use in TVA's commercial nuclear 
reactors. Because TVA produces tritium for NNSA in one of its nuclear 
reactors, URENCO LES evaluated the extent to which the Washington 
Agreement precludes the use of LEU produced with URENCO technology in 
TVA's tritium-producing reactor. According to a URENCO legal 
memorandum, in a July 2005 meeting of the Joint Committee--the British-
Dutch-German government body supervising company activities under the 
Treaty of Almelo--URENCO corporate management posited that providing 
LEU enriched by URENCO LES to TVA for use in any of its reactors was 
not in conflict with the Washington Agreement's peaceful use 
provisions. As reported to company officials in the United States, the 
Joint Committee confirmed that the Washington Agreement's provisions 
restrict special nuclear material produced by URENCO LES to peaceful 
purposes. According to URENCO's legal memorandum, it was further 
discussed that URENCO LES's LEU will be used by TVA principally to 
produce electricity and that, if used in TVA's tritium producing 
reactor, the resulting tritium produced in that reactor is a by-
product material and not a special nuclear material. According to 
senior URENCO officials, the Joint Committee further discussed the 
fact that TVA would primarily use URENCO LES's LEU for the purpose of 
producing commercial power. According to company officials, the Joint 
Committee did not place restrictions on the URENCO LES's contract with 
TVA and did not distinguish between TVA's reactors that produce 
tritium and those that do not. Furthermore, according to TVA 
officials, URENCO has consistently informed TVA that it places no 
restrictions on TVA using URENCO LES's LEU in its tritium-producing 
reactors. 

URENCO's reading of the Washington Agreement is consistent with the 
narrower reading of the agreement outlined above rather than the 
broader reading, which prohibits the use of obligated uranium for any 
military purpose. DOE states that TVA may not use LEU produced by 
URENCO LES for tritium production because the output of URENCO's 
facility is obligated. NNSA's interagency agreement with TVA for 
tritium production requires TVA to use unobligated LEU in the reactors 
being used for tritium production. Department of State officials also 
noted that the view of a private entity does not have weight in the 
interpretation of an agreement binding under international law between 
governments. 

The Key Assumption Underlying DOE's Practice, Available Unobligated 
LEU, Has Changed: 

Although DOE has only used unobligated LEU for tritium production, a 
key assumption underpinning the decision to use unobligated LEU to 
meet national security needs for tritium production has changed. As 
previously discussed, in 1998, when the interagency report was drafted 
that advised DOE to use only unobligated LEU in the TVA reactors that 
produce tritium, the government had a ready supplier of enrichment 
services to produce unobligated LEU. Because USEC ceased enrichment 
operations in May 2013, and because of the uncertain future of the ACP 
following USEC's March 2014 bankruptcy filing, the United States no 
longer has a domestic enrichment capability that will provide an 
assured source of unobligated LEU for tritium production. As explained 
above, while DOE's November 2013 draft Tritium and Enriched Uranium 
Management Plan through 2060 estimates that DOE's tritium production 
needs can be met using unobligated LEU inventories that will last 
through the mid-2030s, the inventories could be exhausted by the mid-
2020s if it becomes necessary to use a second TVA nuclear reactor to 
meet DOE's tritium production goals. 

In addition, over the last several years, DOE has, in some instances, 
provided vague reasoning to Congress for the United States' need to 
maintain a domestic uranium enrichment capability to produce 
unobligated LEU. In letters to members of Congress, congressionally 
mandated reports, and a congressional briefing document, DOE has 
stated that international agreements require their practice of using 
only unobligated LEU to produce tritium and has cited various policy 
considerations--such as national security interests and proliferation 
detection--as reasons why the United States needs to use unobligated 
LEU, without providing much detail about the rationale for each 
consideration. Without more information about the rationales for DOE's 
practice, decision makers may not have the information needed to 
consider the range of national security concerns raised by this issue. 

The U.S. practice to use only unobligated LEU to produce tritium has 
not been examined collaboratively by the many interested entities of 
the government since 1998 when the conditions surrounding the 
availability of unobligated LEU for tritium production were quite 
different. Because the United States no longer has an assured source 
of enrichment services to produce unobligated LEU for tritium 
production, DOE is currently assessing options for obtaining 
unobligated LEU, as required by the Consolidated Appropriations Act of 
2014. According to DOE officials, DOE is currently engaged with an 
interagency working group under the National Security Council that 
includes representatives from the Departments of State and Defense to 
conduct such an analysis. While officials indicated that the short-
term lack of a domestic enrichment capability is unlikely to shift 
long-established national policy, DOE and State officials also told us 
that, prior to this interagency working group, the two agencies had 
not communicated with each other on this topic in several years 
because they had not seen a need to do so. In prior work, we 
identified practices that can enhance and sustain collaboration among 
federal agencies, thereby improving performance and results.[Footnote 
59] One such practice is to define and articulate a common outcome. An 
updated interagency review to either reaffirm or support a change in 
the current practice of using unobligated LEU for tritium production 
could help address questions about whether using LEU produced, for 
example, under the Washington Agreement, is an option for DOE. 

Conclusions: 

Conditions have changed since DOE, the Department of State, and other 
relevant U.S. government entities completed their 1998 interagency 
review of the nonproliferation implications of tritium production. 
Because USEC ceased enrichment operations in May 2013 and the future 
of the ACP is uncertain, the United States no longer has a domestic 
enrichment capability that will provide an assured source of 
unobligated LEU. DOE is currently collaborating with an interagency 
working group to assess options for obtaining unobligated LEU to 
produce tritium to meet national security needs, and it is possible 
that, among these options, DOE will revisit the advice it received in 
1998. DOE and State officials told us that, prior to this interagency 
analysis, the two entities had not communicated about the 
interpretation of international agreements and nonproliferation 
concerns associated with using certain foreign-produced LEU for 
tritium production in several years. We believe the change in the 
assumption fundamental to the 1998 interagency review--that sufficient 
unobligated LEU would be available for tritium production--gives new 
importance to the need for the executive branch to review its position 
on how the United States will obtain LEU for tritium production. By 
taking steps to coordinate the interagency community to review DOE's 
current practice of using unobligated LEU for tritium production, 
decision makers may have greater assurance that decisions on how to 
obtain future LEU for tritium production are based on a coordinated 
understanding of U.S. obligations consistent with international 
agreements and U.S. nonproliferation goals. 

Recommendation for Executive Action: 

In light of the significantly reduced availability of unobligated LEU, 
the absence of a domestic enrichment capability, and the questions 
that this condition has raised about options for its supply, GAO 
recommends that the Secretary of Energy ensure that DOE's interagency 
review of options for obtaining unobligated LEU assesses DOE's current 
practice of using only unobligated LEU for the production of tritium 
for national security purposes. Further, we recommend that this review 
result in either an affirmation of DOE's continuing practice or a 
commitment to study alternative sources of LEU consistent with 
international agreements and U.S. nonproliferation goals. 

Agency Comments and Our Evaluation: 

We provided a draft of this report for review and comment to the 
Secretary of Energy, the Secretary of State, Executive Director for 
Operations of NRC, and the Vice President for Government Relations of 
TVA on August 15, 2014. We also provided a technical statement of 
facts to the following third parties: USEC and URENCO. We received 
technical comments from these parties and incorporated them, as 
appropriate, prior to providing the draft of this report to the 
agencies noted above. DOE provided written comments on September 22, 
2014, which are reproduced in appendix IV. DOE acknowledged our 
recommendation but did not agree nor disagree with our recommendation, 
and stated that the department will continue working with interagency 
partners, including on a collaborative review of current policies and 
practices. DOE also provided technical comments, which we incorporated 
as appropriate. The Department of State did not provide comments on 
GAO's findings and recommendation, but did provide technical comments 
on September 15 and September 18, 2014, which we incorporated as 
appropriate. We received a written response from NRC on September 9, 
2014, which is reproduced in appendix V. NRC also provided technical 
comments, which we incorporated as appropriate. TVA did not provide 
comments on GAO's findings and recommendation, but did provide 
technical comments orally on September 8, 2014, which we incorporated 
as appropriate. 

As agreed with your offices, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies to the 
appropriate congressional committees, the Secretary of Energy, and 
other interested parties. In addition, this report will be available 
at no charge on the GAO website at [hyperlink, http://www.gao.gov]. 

If you or your staff members have questions about this report, please 
contact David C. Trimble at (202) 512-3841 or trimbled@gao.gov or 
Susan D. Sawtelle at (202) 512-6417 or sawtelles@gao.gov. Contact 
points for our Offices of Congressional Relations and Public Affairs 
may be found on the last page of this report. Key contributors to this 
report are listed in appendix VI. 

Signed by: 

David C. Trimble: 
Director, Natural Resources and Environment: 

Signed by: 

Susan D. Sawtelle: 
Managing Associate General Counsel: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

The objectives of our review were to assess (1) the extent to which 
the Department of Energy (DOE) has adhered to its practice of using 
only unobligated low-enriched uranium (LEU) to meet national security 
needs for tritium and (2) the basis for DOE's practice of using only 
unobligated LEU to meet national security needs for tritium. 

To determine the extent to which DOE has adhered to its practice of 
only using unobligated LEU to meet national security needs for 
tritium, we reviewed DOE and National Nuclear Security Administration 
(NNSA) documents. These included DOE strategic planning documents, 
contracts, internal memos and letters, internal analyses, and budget 
documents. In addition, we interviewed officials from DOE's Office of 
Management, Office of Nuclear Energy, and NNSA's Tritium Readiness 
Subprogram Office and the Office of Nonproliferation and International 
Security. We also interviewed officials from the Department of State's 
Bureau of International Security and Nonproliferation and Office of 
the Legal Advisor. Furthermore, we reviewed documents and interviewed 
officials from the Tennessee Valley Authority (TVA)--which produces 
tritium through an interagency agreement with DOE--and the Nuclear 
Regulatory Commission (NRC). Moreover, we interviewed USEC officials 
involved with the American Centrifuge project in Piketon, Ohio, at the 
Paducah Gaseous Diffusion Plant (GDP) in Paducah, Kentucky, and at 
USEC's headquarters in Bethesda, Maryland. 

To determine the basis for DOE's practice for using only unobligated 
LEU to meet national security needs for tritium, we reviewed DOE and 
NNSA documents and assessed relevant international agreements 
pertaining to the transfer of enrichment technology into the United 
States and the extent to which these agreements require DOE to use 
exclusively unobligated LEU for meeting national security needs. In 
particular, we analyzed the following nuclear cooperation agreements 
and international agreements: the Treaty on the Non-Proliferation of 
Nuclear Weapons; the Paris Agreement; the Washington Agreement; the 
nuclear cooperation agreement between the United States and Australia; 
nuclear cooperation agreements between the United States and EURATOM; 
the Agreement Between the United States of America and the 
International Atomic Energy Agency for the Application of Safeguards 
in the United States of America; the Treaty of Almelo between Germany, 
the Netherlands, and the United Kingdom; and the Cardiff Agreement 
between France, Germany, the Netherlands, and the United Kingdom. We 
also interviewed officials from the Department of State's Bureau of 
International Security and Nonproliferation and Office of the Legal 
Advisor and NNSA's Office of Nonproliferation and International 
Security, as well as officials from TVA and representatives from USEC 
and URENCO.[Footnote 60],[Footnote 61] We also reviewed two analyses 
completed by the Congressional Research Service on peaceful use 
restrictions applicable to uranium enriched at the URENCO facility and 
on potential sources of LEU for tritium production, and we interviewed 
staff regarding their conclusions.[Footnote 62] 

To inform both objectives, we conducted site visits to the Paducah GDP 
in Paducah, Kentucky, and the American Centrifuge Plant in Piketon, 
Ohio, because these are the two locations where USEC had been 
enriching or planning to enrich uranium. We also visited DOE's Oak 
Ridge Office, Oak Ridge National Laboratory, and NNSA's Y-12 National 
Security Complex in Oak Ridge, Tennessee, because these offices play a 
role in uranium management or collaboration with USEC, such as on the 
development of the American Centrifuge technology. We also interviewed 
senior USEC officials, including its Chief Financial Officer, to learn 
more about the company's financial condition and future plans. 

We conducted this performance audit from January 2013 to October 2014 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our 
findings and conclusions based on our audit objectives. 

[End of section] 

Appendix II: Peaceful Use Language in Key International Agreements 
Addressing Uranium Enrichment Facilities Operating or Planned for 
Operation in the United States: 

International agreement: Agreement between the Three Governments of 
the United Kingdom of Great Britain and Northern Ireland, the Federal 
Republic of Germany and the Kingdom of the Netherlands and the 
Government of the United States of America regarding the 
Establishment, Construction and Operation of a Uranium Enrichment 
Installation in the United States (Washington Agreement); 
Date of agreement: July 24, 1992; 
Government signatories: 
* United States; 
* Germany; 
* Netherlands; 
* United Kingdom; 
Facility: URENCO, Louisiana Energy Services (New Mexico); 
Peaceful use language: "Any centrifuge technology, equipment and 
components transferred into the United States subject to this 
Agreement, the Installation, any nuclear material and the 
Installation, any special nuclear material produced through the use of 
such technology, any special nuclear material produced through the use 
of such special nuclear material, and any data generated at the 
Installation which is designated Restricted Data while such data is 
under the jurisdiction of the United States Government or of the Three 
Governments shall only be used for peaceful, non-explosive purposes." 

International agreement: Agreement between the Government of the 
United States of America and the Four Governments of the French 
Republic, the United Kingdom of Great Britain and Northern Ireland, 
the Kingdom of the Netherlands, and the Federal Republic of Germany 
regarding the Establishment, Construction and Operation of Uranium 
Enrichment Installations using Gas Centrifuge Technology in the United 
States of America (Paris Agreement); 
Date of agreement: February 24, 2011; 
Government signatories: 
* United States; 
* France; 
* United Kingdom; 
* Netherlands; 
* Germany; 
Facility: AREVA, Eagle Rock (Idaho); 
Peaceful use language: "Any ETC [Enrichment Technology Company] 
Centrifuge Technology, Operations Technology, equipment and components 
transferred into the United States subject to this Agreement, each 
Installation, any Nuclear material in an Installation, any special 
nuclear material produced through the use of such technology, any 
special nuclear material produced through the use of such special 
nuclear material, and any data generated at an Installation that is 
designated Restricted Data while such data is under the jurisdiction 
of the United States Government or any of the Four Governments shall 
only be used for peaceful, non-explosive purposes." 

International agreement: Agreement for Cooperation Between Australia 
and the United States of America Concerning Technology for the 
Separation of Isotopes of Uranium by Laser Excitation (SILEX 123 
Agreement); 
Date of agreement: October 28, 1999; 
Government signatories: 
* United States; 
* Australia; 
Facility: Global Laser Enrichment (any planned facility); 
Peaceful use language: "Sensitive nuclear facilities and major 
critical components subject to this Agreement and any material used in 
them or produced through their use, and Restricted Data and sensitive 
nuclear technology transferred pursuant to this Agreement, shall not 
be used for any nuclear explosive device, for research on or 
development of any nuclear explosive device, or for any military 
purpose." 

Sources: GAO analysis of international agreements. GAO-15-123. 

[End of table] 

[End of section] 

Appendix III: Peaceful Use Language in Additional Select Treaties and 
International Agreements Related to Nonproliferation and Nuclear Trade: 

The Department of Energy (DOE), DOE's National Nuclear Security 
Administration (NNSA), and Department of State officials discussed 
various aspects of three international agreements specifically related 
to the import of uranium enrichment technology, as well as 
nonproliferation policy, with us, but they did not explain 
specifically how these international agreements affect their decisions 
regarding the production of tritium. In the body of this report, we 
analyze a range of possible readings of the text of those three 
enrichment technology agreements.[Footnote 63] In this appendix, we 
summarize our analysis of peaceful use language in certain additional 
treaties and international agreements--agreements that are related 
more generally to nonproliferation and nuclear trade--to determine 
whether their provisions might affect DOE's ability to produce tritium 
from uranium enriched using foreign technology. For example, we 
analyzed agreements between the United States and the European Atomic 
Energy Community (EURATOM) because the European parties to the 
agreements pertaining to URENCO and AREVA are also members of EURATOM. 
As described in further detail below, we did not identify any 
provisions in these more general agreements that prohibit tritium 
production. 

International agreement or treaty: Agreement Between the Government of 
the United States of America and the European Atomic Energy Community 
(EURATOM)[A] (EURATOM Agreement, May/June 1958); 
Date of agreement or treaty: May and June 1958 (Expired); 
Government parties: 
* EURATOM; 
* United States; 
Peaceful use language: "The Parties will cooperate in programs for the 
advancement of the peaceful applications of atomic energy. Such 
cooperation will be undertaken from time to time pursuant to such 
terms and conditions as may be agreed and shall be subject to all 
provisions of law respectively applicable to the Parties." 

International agreement or treaty: Agreement for Cooperation Between 
the Government of the United States of America and the European Atomic 
Energy Community (EURATOM) Concerning Peaceful Uses of Atomic Energy 
(EURATOM 123 Agreement, 1958)[B]; 
Date of agreement or treaty: November 1958 (Expired); 
Government parties: 
* EURATOM; 
* United States; 
Peaceful use language: "The Community guarantees that: No material, 
including equipment and devices, transferred pursuant to this 
Agreement to the Community or to persons within the Community, will be 
used for atomic weapons, or for research on or development of atomic 
weapons, or for any other military purpose; ... No source or special 
nuclear material utilized in, recovered from, or produced as a result 
of the use of material, equipment, or devices transferred pursuant to 
this Agreement to the Community or to persons within the Community 
will be used for atomic weapons, or for research on or development of 
atomic weapons, or for any other military purpose." 
"The Government of the United States of America and the Community 
reaffirm their common interest in fostering the peaceful applications 
of atomic energy through the International Atomic Energy Agency and 
intend that the results of the joint program will benefit the Agency 
and the nations participating in it." 

International agreement or treaty: Additional Agreement for 
Cooperation Between the United States of America and the European 
Atomic Energy Community (EURATOM) Concerning Peaceful Uses of Atomic 
Energy (EURATOM 123 Agreement, 1960); 
Date of agreement or treaty: 1960 (Expired); 
Government parties: 
* EURATOM; 
* United States; 
Peaceful use language: "The Government of the United States of America 
and the Community reaffirm their common interest in fostering the 
peaceful applications of atomic energy through the International 
Atomic Energy Agency and intend that the results of the cooperation 
envisaged by this Agreement will benefit the Agency and the nations 
participating in it." 

Discussion: The prior EURATOM Agreements, completed in 1958 and 1960, 
expired in 1996, so they were in force when the Washington Agreement 
was completed in 1992, but not when the SILEX 123 and Paris Agreements 
were completed in 1999 and 2011, respectively. The May/June 1958 
Agreement and the 1960 123 Agreement contained only general language 
that related to peaceful use, which does not change our reading of the 
Washington Agreement. The November 1958 123 Agreement contains 
peaceful use language that applied only to EURATOM and not to the 
United States. We note that the agreement pertained to bringing into 
operation within EURATOM large-scale power plants using nuclear 
reactors on which research and development had been carried to an 
advanced stage in the United States at the time, as well as a joint 
research and development program centered on these types of reactors; 
accordingly, transfers under the agreement were likely mostly from the 
United States to EURATOM rather than from EURATOM to the United 
States. In any case, the agreement did not include peaceful use 
restrictions on transfers of enrichment technology from the member 
countries of EURATOM to the United States. 

International agreement or treaty: Treaty on the Non-Proliferation of 
Nuclear Weapons (NPT); 
Date of agreement or treaty: 1968; 
Government parties: 
* Australia; 
* France; 
* Germany; 
* Netherlands; 
* United Kingdom; 
* United States; 
* 184 others; 
Peaceful use language: "Each State Party to the Treaty undertakes not 
to provide: (a) source or special fissionable material[C] or (b) 
equipment or material especially designed or prepared for the 
processing, use or production of special fissionable material, to any 
non-nuclear-weapon Stated for peaceful purposes, unless the source or 
special fissionable material shall be subject to ... safeguards [as 
set forth in an agreement with the International Atomic Energy 
Agency]." 

Discussion: The NPT does not prohibit the United States from producing 
nuclear weapons or devices or the materials needed to produce them, 
such as tritium, and does not impose any restrictions on transfers of 
nuclear material or equipment, including enrichment technology, to the 
United States. 

International agreement or treaty: Agreement between the United 
Kingdom of Great Britain and Northern Ireland the Federal Republic of 
Germany and the Kingdom of the Netherlands on Collaboration in the 
Development and Exploitation of the Gas Centrifuge Process for 
producing Enriched Uranium (Treaty of Almelo); 
Date of agreement or treaty: 1970; 
Government parties: 
* United Kingdom; 
* Germany; 
* Netherlands; 
Peaceful use language: "The Contracting Parties jointly and separately 
undertake to ensure that any information, equipment, source, or 
special fissionable material which may be at their disposal for the 
purpose of or as a result of the collaboration described in [this 
agreement] will not be used by or to assist, encourage, or induce any 
non-nuclear-weapon State to manufacture or otherwise acquire nuclear 
weapons or other nuclear explosive devices or control over such 
nuclear weapons or explosive devices... 
The Contracting Parties further undertake to ensure that the joint 
industrial enterprises [established by] this Agreement shall not 
produce weapons grade uranium for the manufacture of nuclear weapons 
or other nuclear explosive devices." 

Discussion: Under the Treaty of Almelo, the United Kingdom, Germany, 
and the Netherlands agreed to collaborate on the development of gas 
centrifuge uranium enrichment technology. The United States is not a 
party to this treaty and is thus not bound by its language, but we 
reviewed it to see if its provisions could provide useful context for 
the provisions of the Washington Agreement, which relate to the same 
technology addressed by this treaty. Two provisions of the treaty 
address peaceful use of this technology. The first echoes the NPT, 
prohibiting the parties from helping nonnuclear-weapon States to 
produce or obtain nuclear weapons or devices. Since the United States 
is a nuclear-weapon State, this provision has no applicability to any 
subsequent agreement with the United States. The second provision 
specifically obligates the parties to ensure that the enrichment 
technology on which they agreed to collaborate is not used to produce 
weapons grade uranium for nuclear weapons or devices. The production 
of weapons grade uranium is not at issue in our analysis. 

International agreement or treaty: Agreement of 18 November 1977 
Between the United States of America and the Agency [International 
Atomic Energy Agency, or IAEA][E] for the Application of Safeguards in 
the United States of America (United States Voluntary Offer Safeguards 
Agreement); 
Date of agreement or treaty: 1977; 
Government parties: 
* IAEA; 
* United States; 
Peaceful use language: "The United States undertakes to permit the 
Agency to apply safeguards, in accordance with the terms of this 
Agreement, on all source or special fissionable material in all 
facilities within the United States, excluding only those facilities 
associated with activities with direct national security significance 
to the United States, with a view to enabling the Agency to verify 
that such material is not withdrawn, except as provided for in this 
Agreement, from activities in facilities while such material is being 
safeguarded under this Agreement." 

Discussion: While, as a nuclear-weapon state, the United States is not 
required to accept safeguards to verify the fulfillment of its 
obligations under the NPT, the United States has voluntarily accepted 
certain safeguards on certain nuclear materials, which do not include 
tritium. 

International agreement or treaty: Agreement for Cooperation in the 
Peaceful Uses of Nuclear Energy Between the European Atomic Energy 
Community and the United States of America (EURATOM 123 Agreement); 
Date of agreement or treaty: 1995; 
Government parties: 
* EURATOM; 
* United States; 
Peaceful use language: "Cooperation under this Agreement shall be 
carried out for peaceful purposes. . Non-nuclear material, nuclear 
material and equipment transferred pursuant to this Agreement and 
special fissionable material used in or produced through the use of 
such items shall not be used for any nuclear explosive device, for 
research on or development of any nuclear explosive device or for any 
military purpose." 

Discussion: The current EURATOM 123 Agreement was not in force when 
the Washington Agreement was completed in 1992, but was in force when 
the SILEX 123 and Paris Agreements were completed in 1999 and 2011, 
respectively. It addresses cooperation on nuclear trade, among other 
things. Specifically, the agreement addresses the transfer of nuclear 
material and equipment. "Equipment" is defined by the agreement to 
include "any reactor as a complete unit, other than one designed or 
used primarily for the formation of plutonium or uranium-233 or any 
other item so designated jointly by the appropriate authorities of the 
Parties." According to the Department of State, no uranium enrichment 
technology has been designated as "equipment" under this agreement. 
Accordingly, the agreement does not address the transfer of uranium 
enrichment technology between EURATOM and the United States. 

International agreement or treaty: Agreement between the Governments 
of the United Kingdom of Great Britain and Northern Ireland, the 
Kingdom of the Netherlands, the Federal Republic of Germany and the 
French Republic regarding Collaboration in Centrifuge Technology 
(Cardiff Agreement); 
Date of agreement or treaty: 2005; 
Government parties: 
* United Kingdom; 
* France; 
* Germany; 
* Netherlands; 
Peaceful use language: "The Four Governments jointly and separately 
undertake to ensure, in conformity with the NPT, that any Centrifuge 
Technology, which may be at their disposal for the purpose of, or as a 
result of, the collaboration described in [this agreement] shall not 
be used in any way to assist, encourage or induce any non-nuclear-
weapon State to manufacture or otherwise acquire nuclear weapons or 
other nuclear explosive devices or control over such weapons or 
explosive devices... 
The Government of the French Republic shall ensure that any 
organisation which builds plants for the enrichment of uranium on the 
territory of the French Republic using or otherwise exploiting 
Centrifuge Technology owned by, held by, or deriving or arising from 
the operations of, ETC,[F] or operates such plants, shall not produce 
weapons grade uranium for the manufacture of nuclear weapons or other 
nuclear explosive devices." 

Discussion: The Cardiff Agreement added France to the collaboration on 
gas centrifuge enrichment technology that was established by the 
Treaty of Almelo between the United Kingdom, Germany, and the 
Netherlands. As with the Treaty of Almelo, the United States is not a 
party to this agreement and thus is not bound by its language, but we 
reviewed it to see if its provisions could provide useful context for 
the provisions of the Paris Agreement, which relate to the same 
technology addressed by this agreement. The two provisions of the 
agreement related to peaceful use are substantively the same as those 
included in the Treaty of Almelo. The first echoes the NPT, 
prohibiting the parties from helping nonnuclear-weapon States to 
produce or obtain nuclear weapons or devices. Since the United States 
is a nuclear-weapon State, this provision has no applicability to any 
subsequent agreement with the United States. The second provision 
specifically obligates France to ensure that the enrichment technology 
is not used to produce weapons grade uranium for nuclear weapons or 
devices. The production of weapons grade uranium is not at issue in 
our analysis. 

Sources: GAO analysis of international agreements. GAO-15-123. 

[A] EURATOM is composed of the 27 countries of the European Union. 

[B] Under Section 123 of the U.S. Atomic Energy Act of 1954, as 
amended, nuclear cooperation agreements are a prerequisite to certain 
aspects of civilian U.S. nuclear cooperation with countries and other 
cooperating partners. Section 123 also requires that these agreements 
include, among other things, guarantees from the partners that they 
will maintain safeguards over nuclear materials and equipment 
transferred and adequate physical security for all nuclear material 
transferred. These nuclear cooperation agreements are referred to as 
"123 Agreements." 

[C] Neither source material nor special fissionable material is 
defined in the treaty. The IAEA defines "source material" as "uranium 
containing the mixture of isotopes occurring in nature; uranium 
depleted in the isotope 235; thorium; any of the foregoing in the form 
of metal, alloy, chemical compound, or concentrate; any other material 
containing one or more of the foregoing in such concentration as the 
Board of Governors shall from time to time determine; and other such 
material as the Board of Governors shall from time to time determine. 
This definition is similar to the definition of "source material" 
provided in the Atomic Energy Act. The IAEA defines "special 
fissionable material" as "plutonium-239; uranium-233; uranium enriched 
in the isotopes 235 or 233; any material containing one or more of the 
foregoing; and such other fissionable material as the Board of 
Governors shall from time to time determine; but the term 'special 
fissionable material' does not include source material." This 
definition is similar to the definition of "special nuclear material" 
provided in the Atomic Energy Act. 

[D] Nonnuclear-weapon states are those states that had not 
manufactured and exploded a nuclear weapon or other nuclear explosive 
device before January 1, 1967. 

[E] IAEA, an independent international organization based in Vienna, 
Austria, is affiliated with the United Nations and has the dual 
mission of promoting the peaceful uses of nuclear energy and verifying 
that nuclear materials intended for peaceful purposes are not diverted 
to military purposes. IAEA had 162 member states as of February 2014. 

[F] "ETC" refers to the joint venture established between URENCO and 
AREVA to carry out Centrifuge Technology research and development, 
manufacturing of gas centrifuges and related technology and 
activities, named Enrichment Technology Company Ltd, including its 
subsidiaries and their possible legal successors. 

[End of table] 

[End of section] 

Appendix IV: Comments from the Department of Energy: 

Department of Energy: 
Under Secretary for Nuclear Security: 
Administrator, National Nuclear Security Administration: 
Washington, DC 20585: 

September 22, 2014: 

David Trimble: 
Director, Natural Resources and Environment: 
U.S. Government Accountability Office: 
Washington, DC 20548: 

Dear Mr. Trimble, 

Thank you for the opportunity to review and comment on the Government 
Accountability Office's (GAO) draft report titled "Department of 
Energy" Interagency Review Needed to Update U.S. Position on Enriched 
Uranium that Can Be Used for Tritium Production" (GAO-14-812). I
understand the GAO began this review in response to a request from 
Senator Edward J. Markey and Representative Michael C. Burgess to 
review the peaceful use provisions in international agreements 
addressing uranium enrichment technology in the United States. This 
includes the extent to which the Department of Energy (Department) has 
adhered to its policy of using only unobligated Low-Enriched Uranium 
(LEU) to produce tritium, and the basis for this practice. 

The Department and the National Nuclear Security Administration (NNSA) 
appreciate GAO's report which highlights the inherent challenges of 
ensuring an adequate and sustainable supply of LEU for future tritium 
production, while continuing to pursue non-proliferation policy goals.
The Department will continue to pursue effective strategies for 
addressing these challenges by leveraging the cooperation of our 
interagency partners to evaluate viable supply options, including a 
collaborative review of current policies and practices. 

We have also enclosed technical comments for your consideration to 
enhance the clarity and factual accuracy of the report. If you have 
any questions regarding this response, please contact Dean Childs, 
Director, Office of Audit Coordination and Internal Affairs, at (301) 
903-1341. 

Sincerely, 

Signed by: 

Frank G. Klotz: 

Enclosure: 

[End of section] 

Appendix V: Comments from the Nuclear Regulatory Commission: 

United States Nuclear Regulatory Commission: 
Washington, D.C. 20555-0001: 

September 9, 2014: 

Mr. David Trimble: 
Director, Natural Resources and the Environment: 
U.S. Government Accountability Office: ;
Washington , DC 20548: 

Dear Mr. Trimble: 

On behalf of the U.S. Nuclear Regulatory Commission (NRC), I am 
responding to your letter dated August 8, 2014, requesting comments on 
the U.S. Government Accountability Office (GAO) proposed report GAO 14-
812, "Interagency Review Needed to Update U.S. Position on Enriched 
Uranium that can be used for Tritium Production." We appreciate the 
opportunity to provide our comments for your consideration. 

As requested, the NRC has reviewed the draft report and has several 
comments. The enclosure contains the comments. 

Sincerely, 

Signed by: 

Mark A. Satorius: 
Executive Director for Operations: 

Enclosures:
1. NRC Comments; 
2. GAO Report. 

[End of section] 

Appendix VI: GAO Contacts and Staff Acknowledgments: 

GAO Contacts: 

David C. Trimble, (202) 512-3841 or trimbled@gao.gov: 

Susan D. Sawtelle, (202) 512-6417 or sawtelles@gao.gov: 

Staff Acknowledgments: 

In addition to the individuals named above, Allison B. Bawden, 
Assistant Director; Eric Bachhuber; Antoinette Capaccio; Delwen A. 
Jones; Amanda K. Kolling; and Karen Villafana made key contributions 
to this report. Also contributing to this report were Elizabeth R. 
Beardsley; Doreen Eng; Karen K. Keegan; Risto Laboski; Dr. Timothy M. 
Persons; Dan C. Royer; and Rebecca Shea. 

[End of section] 

Footnotes: 

[1] To transform uranium ore into a form that can be used in nuclear 
weapons and to fuel nuclear reactors, uranium goes through a number of 
steps including mining, conversion, and enrichment. Enrichment is the 
process of separating uranium-235--the form, or isotope, that 
undergoes fission to release enormous amounts of energy in nuclear 
reactors and weapons--from much of the uranium-238 to increase the 
concentration of uranium-235. 

[2] The corporation was initially established as the United States 
Enrichment Corporation. The privatization was accomplished by an 
initial public offering with the United States Enrichment Corporation 
becoming a subsidiary of the newly created USEC Inc., a Delaware 
corporation. 

[3] USEC Privatization Act, 42 U.S.C. §§ 2297h-2297h-13 (2012). 

[4] See GAO, Department of Energy: Enhanced Transparency Could Clarify 
Costs, Market Impact, Risk, and Legal Authority to Conduct Future 
Uranium Transactions, [hyperlink, 
http://www.gao.gov/products/GAO-14-291] (Washington, D.C.: May 9, 
2014) for a complete description of these events. 

[5] On September 5, 2014, the U.S. Bankruptcy Court for the District 
of Delaware approved USEC's plans for reorganization. At that time, 
USEC announced that it planned to emerge from Chapter 11 
reorganization under the name Centrus Energy Corp. On September 30, 
2014, Centrus Energy Corp. announced that it had satisfied all 
conditions set forth in its Plan for Reorganization and that it was 
emerging in a stronger position to support the energy and national 
security needs of the United States. 

[6] USEC has also developed a manufacturing and testing facility in 
Oak Ridge, Tennessee, and established an extensive domestic supply 
chain for acquiring and constructing components of the centrifuge 
units. 

[7] Gas centrifuge technology employs rapidly spinning rotors inside 
cylinders containing uranium hexafluoride to separate the fissile 
uranium-235 from the nonfissile uranium-238. The centrifuge requires 
significantly less power to operate than the gaseous diffusion process. 

[8] DOE analysis of stockpile demand for tritium is classified. 

[9] NNSA was created as a semiautonomous agency within DOE by the 
National Nuclear Security Administration Act. Pub. L. No. 106-65, § 
3211, 113 Stat. 512 957 (1999). NNSA is responsible for the 
management and security of the nation's nuclear weapons, 
nonproliferation, and naval reactors programs. 

[10] According to DOE, the department's current HEU inventory 
allocations are sufficient to meet national security demands through 
2064, based on several assumptions, including no reallocation of non-
excess HEU to downblending operations in support of tritium production. 

[11] There are no U.S.-owned enrichment facilities or foreign-owned 
enrichment facilities that use U.S. technology operating outside of 
the United States. 

[12] According to DOE officials, all steps in the nuclear fuel cycle 
must be free from peaceful use restrictions to result in wholly 
unobligated LEU that can be used for tritium production. GAO did not 
evaluate steps in the nuclear fuel cycle other than enrichment for 
this review. 

[13] LEU that does not carry "peaceful use" restrictions is referred 
to as "unobligated LEU." 

[14] The ACP would use U.S.-developed technology, thus producing 
unobligated LEU. The focus of this report is on enrichment facilities 
that use or will use foreign technology and are subject to peaceful 
use provisions contained in international agreements. 

[15] Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 311, 
128 Stat. 5, 175. 

[16] As of October 2, 2014, DOE had not yet submitted this tritium and 
enriched uranium management plan to Congress. 

[17] This request was originally made by the Ranking Member of the 
House Committee on Natural Resources, Representative Edward J. Markey, 
who is now a member of the Senate, and Representative Michael C. 
Burgess. 

[18] DOE, NNSA, and Department of State officials discussed various 
aspects of the international agreements and nonproliferation policy 
with us. We only identified a public interpretation of one of the 
agreements, however, and, thus for the other two agreements, this 
report identifies a range of possible readings. 

[19] Nuclear-weapon states under the NPT are those that manufactured 
and exploded a nuclear weapon or other nuclear explosive device before 
January 1, 1967; nonnuclear-weapon states are those that had not. 

[20] The parties to the agreement are the American Institute in Taiwan 
and the Taipei Economic and Cultural Representative Office in the 
United States. 

[21] In this report, we use the term "technology" to refer to any 
technology, equipment, components, or facilities addressed by these 
agreements. The full language of the peaceful use provisions in these 
agreements is laid out in appendix II. 

[22] Agreement between the Three Governments of the United Kingdom of 
Great Britain and Northern Ireland, the Federal Republic of Germany 
and the Kingdom of the Netherlands and the Government of the United 
States of America regarding the Establishment, Construction and 
Operation of a Uranium Enrichment Installation in the United States, 
July 24, 1992. 

[23] Agreement between the United Kingdom of Great Britain and 
Northern Ireland the Federal Republic of Germany and the Kingdom of 
the Netherlands on Collaboration in the Development and Exploitation 
of the Gas Centrifuge Process for producing Enriched Uranium, Mar. 4, 
1970. 

[24] URENCO is currently owned in equal parts by the government of the 
Netherlands, the government of the United Kingdom, and two German 
utility companies. 

[25] The NRC is the federal agency that regulates, among other things, 
the civilian uses of nuclear materials and production facilities (such 
as a uranium enrichment facility) in the United States. 

[26] Agreement between the Governments of the United Kingdom of Great 
Britain and Northern Ireland, the Kingdom of the Netherlands, the 
Federal Republic of Germany, and the French Republic regarding 
Collaboration in Centrifuge Technology, July 12, 2005 (hereafter 
referred to as the "Cardiff Agreement"), laid out the framework for 
this collaboration between the URENCO governments and France. 

[27] Agreement between the Government of the United States of America 
and the Four Governments of the French Republic, the United Kingdom of 
Great Britain and Northern Ireland, the Kingdom of the Netherlands, 
and the Federal Republic of Germany regarding the Establishment, 
Construction and Operation of Uranium Enrichment Installations using 
Gas Centrifuge Technology in the United States of America, Feb. 24, 
2011. 

[28] General Electric is an American company. Hitachi is a Japanese 
company. Cameco is a Canadian uranium mining and conversion company. 
Its subsidiary, Cameco USA, is the largest uranium mining producer in 
the United States. 

[29] Agreement for Cooperation Between Australia and the United States 
of America Concerning Technology for the Separation of Isotopes of 
Uranium by Laser Excitation, Oct. 28, 1999. 

[30] GLE's stated use for this facility is to re-enrich depleted 
uranium to the level of natural uranium for further enrichment in 
another enrichment facility. 

[31] According to NRC officials, because the milling technology is 
originally derived from U.S. refinement methods, the uranium processed 
in the United States by this company is not considered to be obligated. 

[32] Natural uranium has a concentration of uranium-235 of 0.7 
percent, while depleted uranium has a concentration of uranium-235 
less than 0.7 percent. 

[33] According to NNSA officials, because the facilities are old, DOE 
has reasonable assurance that the existing technology and components 
of the fuel fabrication facility that it uses are of U.S. origin. 

[34] The Department of Defense is responsible for implementing the 
U.S. nuclear deterrent strategy, which includes establishing the 
military requirements associated with planning for the nuclear weapons 
stockpile. NNSA and the Department of Defense work together to produce 
the Nuclear Weapons Stockpile Memorandum. This memorandum outlines a 
proposed plan for the President to sign to guide U.S. nuclear 
stockpile activities. This plan specifies the size and composition of 
the stockpile and other information concerning adjustments to the 
stockpile for a projected multi-year period. While the exact 
requirements are classified, NNSA uses the detailed information 
included in the memorandum on the number of weapons to be included in 
the stockpile to determine the amount of tritium needed to maintain 
these weapons. 

[35] In 1999, DOE entered into an interagency agreement with TVA to 
produce tritium in its Watts Bar and Sequoyah reactors, for which DOE 
would pay TVA approximately $1.5 billion for its costs over the 
agreement's 35-year term. To date, only TVA's Watts Bar 1 reactor has 
been used to produce tritium under this agreement. 

[36] The interagency agreement is intended to be at cost such that TVA 
neither loses money nor profits from it. NNSA agreed to pay TVA the 
cost difference--known as the enrichment price differential--for TVA's 
commercial nuclear power reactors that are part of the tritium 
program. To determine the differential, the cost of fuel in TVA's 
tritium program reactors is compared with the market price for LEU at 
a reference location (regardless of obligations). The reference 
location was selected as the best proxy for market prices TVA would 
have paid if it did not participate in the tritium program. 

[37] See [hyperlink, http://www.gao.gov/products/GAO-14-291] for 
additional details on this series of uranium transfers described as 
the "May 2012 Tails Transfer." 

[38] Quantities of HEU were declared excess to national security needs 
in 1994 and 2005, which made some of this excess HEU available for 
downblending. According to DOE documents, the 1994 declaration by the 
President pledged that 174 tons of HEU would never again be used for 
any military purpose, including naval propulsion and tritium 
production. In 2005, the Secretary of Energy declared 200 tons of HEU 
excess to the weapons program. According to DOE documents, the 2005 
declaration specifically allowed for use of this material for naval 
propulsion and tritium production. Most of this declared HEU has 
already been dedicated to specific purposes, such as for naval 
reactors and downblending to fuel research reactors. 

[39] GAO did not evaluate steps in the nuclear fuel cycle other than 
enrichment for this review. 

[40] Currently, TVA produces tritium in one reactor, Watts Bar 1. 
However, a second reactor, Sequoyah, is considered to be in backup 
status and may also be used for tritium production. As such, TVA is 
required by its agreement with DOE to use only unobligated LEU in 
Watts Bar 1 and may use obligated LEU in the Sequoyah reactor until 
formally notified by DOE to do otherwise. 

[41] Unencumbered LEU refers to LEU that is not encumbered by peaceful 
use restrictions and is thus considered to be unobligated. 

[42] According to a senior NNSA official, the foreign government that 
placed the peaceful use obligations on the component agreed to this 
resolution. 

[43] President's Message to Congress Transmitting the Australia-United 
States Agreement on Technology for the Separation of Isotopes of 
Uranium by Laser Excitation with Documentation, 35 Weekly Comp. Pres. 
Doc. 2243 (Nov. 3, 1999). 

[44] We also analyzed the peaceful use language in a selection of 
other international treaties and agreements that relate more generally 
to nonproliferation and nuclear trade. As summarized in appendix III, 
we found that those agreements do not speak directly to whether only 
unobligated LEU may be used for tritium production. 

[45] See appendix II for the complete text of these provisions. 

[46] Specifically, the agreements define "special nuclear material" to 
include "plutonium, uranium-233, and uranium enriched in the isotopes 
U-233 or U-235." By comparison, "special nuclear material" is defined 
by the AEA to include plutonium or uranium enriched in the isotope 233 
or in the isotope 235 and any other material that NRC determines to be 
special nuclear material, but it does not include source material. The 
NRC has not declared any other material--including tritium--as special 
nuclear material. In addition, the 1998 interagency review, 
Interagency Review of the Nonproliferation Implications of Alternative 
Tritium Production Technologies under Consideration by the Department 
of Energy, states that, "…tritium is not a fissionable material 
capable of sustaining a nuclear reaction. Thus, it is not classified 
as a special nuclear material..." 

[47] This broader reading would also arguably prohibit the use of 
obligated uranium for the production of power to be used for any 
military activities. For example, under this reading, the uranium 
enriched by a facility using power produced from obligated uranium 
would itself be obligated. As noted above, the Paducah GDP was, until 
May 2013, DOE's sole supplier of enrichment services for national 
security purposes. While the Paducah plant obtained its power from 
TVA, that power was provided by the Shawnee Power Plant, which is a 
coal-fired power plant. 

[48] Specifically, the agreement defines "material" to mean "source 
material, special nuclear material, byproduct material, radioisotopes 
other than byproduct material, or any other such substance so 
designated by agreement of the Parties." "Special nuclear material" is 
defined to mean "(1) plutonium, uranium 233, or uranium enriched in 
the isotope 235 or (2) any other material so designated by agreement 
of the Parties." "Byproduct material" is defined to mean "any 
radioactive material (except special nuclear material) yielded in or 
made radioactive by exposure to the radiation incident to the process 
of producing or utilizing special nuclear material." Tritium is 
produced in this way. 

[49] Factor v. Lauenheimer, 290 U.S. 276, 295 (1933); Kolovrat v. 
Oregon, 366 U.S. 187, 194 (1961); Sumitomo Shoji America, Inc. v. 
Avagliano, 457 U.S. 176, 184-85 (1982); Restatement (Third) of the 
Foreign Relations Law of the U.S. § 326 (1987). 

[50] Societe Nationale Industrielle Aerospatiale v. United States 
Dist. Court for S. Dist. Of Iowa, 482 U.S. 522, 552 (U.S. 1987); see 
also Restatement (Third) of the Foreign Relations Law of the U.S. § 1 
(1987) (In strictly domestic matters, Congress enacts laws and the 
President takes care that the laws be faithfully executed. In domestic 
affairs, presidential action can be seen as a source of law primarily 
as he exercises authority delegated to him by Congress, and 
secondarily insofar as some law-making is inherent in the 
interpretation and execution of laws. In foreign affairs, however, the 
President is clearly a separate source of law since he makes treaties 
(with the advice and consent of the Senate), which are the law of the 
land. As the 'sole organ of the nation in its external relations,' in 
whom is lodged 'the executive power,' and as Commander in Chief, the 
President also has authority to make other agreements wholly on his 
own authority") (internal citations removed). 

[51] For example, they cited the U.S. 123 Agreement with India, which 
explicitly prohibits the use of by-product material, such as tritium, 
produced through the use of transferred nuclear material or equipment 
for any nuclear explosive device or for any military purpose. We note 
that, unlike certain of the agreements discussed in the text above, 
there is only one interpretation of the 123 Agreement with India in 
this regard. This is because the equipment transferred under the 
agreement is reactor equipment--which can be used to produce tritium 
in one generation--not enrichment equipment, which can only be used to 
produce tritium in a subsequent generation and through the use of 
additional reactor equipment. 

[52] Under the NPT, the United States is obligated not to transfer 
possession or control of nuclear weapons or other nuclear explosive 
devices, and not in any way to assist, encourage, or induce any 
nonnuclear-weapon state to manufacture or otherwise acquire or control 
such weapons or devices. According to Department of State officials, 
the United States must therefore ensure that its nuclear cooperation 
with nonnuclear weapon states is exclusively for peaceful purposes. It 
implements this obligation, among other ways, through the peaceful use 
provisions in U.S. 123 Agreements. 

[53] Interagency Review of the Nonproliferation Implications of 
Alternative Tritium Production Technologies under Consideration by the 
Department of Energy, Report to the Congress, July 1998. Participants 
in the review included the Departments of Defense, Energy, and State; 
the Arms Control and Disarmament Agency; the Nuclear Regulatory 
Commission; the National Security Council; the White House Office of 
Science and Technology Policy; and the Office of the Vice President. 

[54] The report analyzed the nonproliferation implications of the 
United States pursuing three tritium production technologies: a 
commercial light water reactor, a proton accelerator, and the Fast 
Flux Test Facility. The accelerator technology would accelerate 
protons (particles within an atom that have a positive electrical 
charge) to nearly the speed of light. The protons would impact or 
collide with tungsten, releasing neutrons through a process called 
spallation, which can be used to change helium into tritium. The Fast 
Flux Test Facility is a sodium-cooled, fast-neutron flux reactor plant 
designed specifically for irradiation testing of nuclear reactor fuels 
and materials for liquid metal fast breeder reactors. Neither of the 
latter two options was ultimately pursued. 

[55] Specifically, the review notes that (1) the sole prohibition in 
U.S. law against the use of a commercial reactor for defense purposes 
relates to a ban on the use for nuclear explosive purposes of special 
nuclear material, such as uranium or plutonium produced in a 
commercial reactor, not tritium; (2) the NPT would not ban the use of 
U.S. commercial reactors for defense purposes because, as a nuclear-
weapon state party to the treaty, the United States is not prohibited 
from manufacturing weapons or materials needed for their production; 
(3) the U.S Safeguards Agreement with the International Atomic Energy 
Agency would not ban the production of tritium in a commercial reactor 
because safeguards are applied to source materials, such as LEU and 
purified natural uranium, and special fissionable materials, such as 
HEU and plutonium, but not to tritium; and (4) to the extent that 
nuclear cooperation agreements prohibit imported fuel and equipment 
from being used for explosive purposes, the United States would assure 
its foreign trading partners that no restricted fuel or equipment was 
used for tritium production. 

[56] In addition, the report asserted that, although use for tritium 
production of a nuclear reactor producing energy for civilian use 
could raise concerns about the practice of military-civilian dichotomy 
separation in U.S. nuclear energy programs, the particular reactors 
proposed to be used for this purpose would be wholly owned by the U.S. 
government, rather than by a private entity and, therefore, would be 
in effect extending the past practice of using government-owned 
facilities simultaneously for civil and military purposes rather 
than setting a precedent. 

[57] 64 Fed. Reg. at 26,369 (May 14, 1999). 

[58] In 2013, we found that there is potential overlap among the U.S. 
nuclear fuel bank--which seeks to guarantee the supply of fuel for 
civilian nuclear power programs and offer countries an alternative to 
developing their own indigenous fuel supplies--and other guaranteed 
fuel supply options, such as the International Atomic Energy Agency's 
fuel bank, and questioned the need for the U.S. nuclear fuel bank. See 
GAO, Nuclear Nonproliferation: IAEA Has Made Progress in Implementing 
Critical Programs but Continues to Face Challenges, [hyperlink, 
http://www.gao.gov/products/GAO-13-139] (Washington, D.C.: May 16, 
2013). 

[59] GAO, Results-Oriented Government: Practices That Can Help Enhance 
and Sustain Collaboration among Federal Agencies, [hyperlink, 
http://www.gao.gov/products/GAO-06-15] (Washington, D.C.: Oct. 21, 
2005). 

[60] DOE, NNSA, and Department of State officials discussed various 
aspects of the international agreements and nonproliferation policy 
with us. We only identified a public interpretation of one of the 
agreements, however, and, thus for the other two agreements, this 
report identifies a range of possible readings. 

[61] NNSA was created as a semiautonomous agency within DOE under the 
National Nuclear Security Administration Act. Pub. L. No. 106-65, § 
3211, 113 Stat. 512, 957 (1999). NNSA is responsible for the 
management and security of the nation's nuclear weapons, 
nonproliferation, and naval reactors programs. 

[62] CRS, Peaceful Use Restrictions on Uranium Enriched at the Urenco 
Uranium Enrichment Facility (Washington, D.C.: May 21, 2012). CRS, 
Potential Sources of Nuclear Fuel for Tritium Production (Washington, 
D.C.: May 15, 2012). 

[63] Relevant provisions of these three agreements are quoted in 
appendix II. 

[End of section] 

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