The Nuclear Safeguards (EU Exit) Regulations 2019

Explanatory Note

(This note is not part of the Regulations)

These Regulations commence on exit day, which is when the United Kingdom will cease to be a member of both the European Union and of the European Atomic Energy Community. Prior to the commencement day, nuclear safeguards in the United Kingdom, were regulated by the EURATOM treaty, as amended by the Treaty of Lisbon, which was signed on 13th December 2007, and by Commission Regulation (EURATOM) 302/2005 (OJ L 54, 28.2.2005 p1-71). With effect from commencement day, the United Kingdom's domestic provisions on nuclear safeguards will be set out in the Energy Act 2013 (c. 32), as amended by the Nuclear Safeguards Act 2018 (c. 15), these Regulations and the Nuclear Safeguards (Fissionable Material and Relevant International Agreements) (EU Exit) Regulations 2019 (S.I. 2019/195).

These Regulations are made under powers contained in the Energy Act 2013, as amended by the Nuclear Safeguards Act 2018. The Regulations set out the United Kingdom regime for nuclear safeguards in civil activities (rather than defence). The Regulations give effect to the International Agreement dated 7th June 2018 between the United Kingdom of Great Britain and Northern Ireland and the International Atomic Energy Agency (the “Agency”) on the non-proliferation of nuclear weapons (the “IAEA Agreement”). The IAEA Agreement is supplemented by an Additional Protocol, of the same date, between the United Kingdom and the Agency which requires the United Kingdom to provide additional information to the Agency and sets out additional requirements relating to access by the Agency.

The Regulations require the operator of a qualifying nuclear facility to maintain records and to provide information to the Office for Nuclear Regulation (“ONR”) which the ONR will then use to provide information to the Agency, as appropriate, in fulfilment of the obligations of the United Kingdom under the IAEA Agreement.

The bilateral IAEA Agreement has replaced a previous trilateral agreement, dated 6th September 1976, which was entered into between the United Kingdom, the European Atomic Energy Community and the International Atomic Energy Agency (the “1976 Agreement”). As a result of the withdrawal of the United Kingdom from EURATOM, the 1976 Agreement was no longer appropriate and was replaced by the IAEA Agreement.

In addition, Commission Regulation (EURATOM) No 302/2005, of 8th February 2005, on the application of EURATOM safeguards (the “EU Regulation”) sets out the regime for nuclear safeguards in civil activities, with which the operators of nuclear installations were required to comply. It is supplemented by Commission Recommendation, of 11th February 2009, on the implementation of a nuclear material accountancy and control system by the operators of nuclear installations (the “Recommendation”). These Regulations replace the EU Regulation and the Recommendation.

In order to maintain the extent and coverage of nuclear safeguards and to minimise the amount of adjustment required by the operators, the Regulations reflect many features of the EU Regulation although there are some differences, to take account of the features which exist in the United Kingdom.

Regulation 1 deals with commencement. The bulk of the regulations commence on exit day. Regulations 7 to 9, which set out the requirements for the accountancy and control plan, commence on 1st January 2021.

The NS Act inserts definitions of “civil activities”, “qualifying nuclear equipment”, “qualifying nuclear facility” and “qualifying nuclear material” into the new section 76A (7) of the Energy Act.

Regulation 2 defines other terms which are used in the Regulations.

Regulation 3 requires an operator to declare the basic technical characteristics of a qualifying nuclear facility to the ONR using the questionnaire set out in Part 1 of Schedule 1 to the Regulations.

Regulation 4 requires an operator to send an annual programme of activities to the ONR by way of the form set out in Part 8 of Schedule 1.

Regulation 5 provides the ONR with a power to adopt particular safeguard provisions in relation to a qualifying nuclear facility on the basis of the technical characteristics submitted by an operator under Regulation 3.

Regulation 6 requires an operator to maintain a system of accountancy and control of qualifying nuclear material. Schedule 2 sets out the components of an accountancy and control system.

Regulations 7 to 9 require an operator to produce an accountancy and control plan and send it to the ONR.

Regulations 10 and 11 require an operator to produce operating and accounting records respectively.

Regulation 12 requires an operator to produce accounting reports and to send them to the ONR.

Regulation 13 requires an operator to provide the ONR with an initial book inventory in the form set out in Part 4 of Schedule 1. Regulation 14 requires the operator to submit an inventory change report using the form set out in Part 2 of Schedule 1. Regulation 18 provides that, in the case of reactors, the inventory change report must include calculated data on nuclear transformations.

Regulation 15 requires an operator to provide the ONR with a material balance report, in respect of each material balance area, in the form set out in Part 3 of Schedule 1 and with a physical inventory listing, in the form set out in Part 4 of Schedule 1.

Regulation 16 requires an operator to submit a special report to the ONR in the circumstances described in regulations 17 and 23. These are in the event of an unusual incident or a change in containment or where, following exceptional circumstances or an incident, the operator has been informed that qualifying nuclear material may have been lost. The Regulations do not specify the form of the special report.

When an operator provides an initial book inventory, inventory change report, material balance report, physical inventory listing or notice of intended imports and exports, then regulation 19 requires the operator to identify separately for each obligation any qualifying nuclear material which is subject to such an obligation in a relevant international agreement or obligation resulting from international trade. The four relevant international agreements, defined for the purposes of the section 76A(6) of the Energy Act 2013, are the United States, Australia, Canada and Japan. The obligations resulting from international trade are described in regulation 19(4). The text of the relevant international agreements and of the obligations concerning international trade, described in 19(4)(a) to (e) are published on the Foreign and Commonwealth Office website www.treaties.fco.gov.uk/treaties.

Regulation 20 sets out the weight units and categories of qualifying nuclear materials to be used in the notifications which are required under the Regulations.

Regulations 21 and 22 require an operator to provide the ONR with advance notification of exports and imports using the forms set out in Parts 5 and 6 of Schedule 1 respectively. Regulation 24 requires an operator to inform the ONR without delay of any change in the dates of packing before transfer, transport and unpacking.

Regulations 25 and 26 require carriers and temporary storage agents of qualifying nuclear material to keep records.

Regulation 27 provides that an ore producer is not required to comply with regulations 4 and 10 to 15 and sets out the accounting requirements for ores. Regulation 28 disapplies regulations 21 to 24 and requires an ore producer to inform the ONR of ore exports using the form set out in Part 7 of Schedule 1.

Regulation 29 provides that an operator of a qualifying nuclear facility that treats or stores retained or conditioned waste is not required to comply with regulations 10 to 15 and sets out the accounting requirements for waste. Regulation 30 requires an operator to inform the ONR of transfers of conditioned waste using the forms set out in Parts 9 (exports) or 10 (imports) of Schedule 1.

Regulation 31 sets out the requirements concerning the declaration of basic technical characteristics, stock list and accounting records for an operator of a qualifying nuclear facility with limited operation.

Regulation 32 sets out two exemptions. First, the Regulations do not apply to a person who holds only end products which are used for non-nuclear purposes and which incorporate qualifying nuclear material which is in practice irrecoverable. Second, the Regulations do not apply to a relevant educational institution, described in regulation 32(2)(a), which holds an amount equal to 0.01 effective kilograms or less of uranium or thorium where, in the case of uranium, the isotopes 235 and 233 comprise 1% or less of the total mass of uranium.

Regulation 33 requires an operator to notify the ONR if qualifying nuclear material is withdrawn from civil activities.

Regulation 34 provides that the Regulations apply to the qualifying nuclear material which is used in civil activities in a qualifying nuclear facility even if the qualifying nuclear facility is only partly used for civil activities.

Regulation 35 sets out the methods of communication with the ONR.

Regulations 36 to 38 require an operator, at the written request of the ONR, to install suitable safeguards equipment in a qualifying nuclear facility. Safeguards equipment is defined as equipment used by the ONR or the Agency to provide independent confirmation that the information produced by an operator under the Regulations is accurate and up to date.

Regulation 39 provides the ONR with a power to carry out inspections.

Regulation 40 provides for the publication of information by the ONR.

Regulation 41 requires the ONR to provide an annual report on the application of the Regulations to the Secretary of State.

Regulation 42 requires the ONR to provide to the Agency that information which the United Kingdom is required to provide to the Agency under the Agreement with the Agency.

Regulation 43 provides that if an operator fails to comply with regulations 3(1) to (3), 4, 6(1), (2), (4) and (5), 7(1) and (4), 12(2) and (3), 13, 14(1) to (3), 15, 16(1) and (3), 19(1), 21(1) and (2), 22(1) and (2), 24, 33(1), 45, 46(1) and (3) or if any person fails to comply with regulation 38 or 45, they are guilty of an offence.

Regulations 44 to 49 govern the provision of information to the Secretary of State concerning non-nuclear material, equipment and technology to which a specified international agreement (with the United States, Japan, Australia and Canada) apply. Regulation 45 sets out the requirements on an operator of a qualifying nuclear facility or other person to inform the Secretary of State of the receipt, production or transfer of relevant items. Regulation 46 sets out the time period for the notification and regulation 47 requires an operator to notify the Secretary of State of any relevant change. Regulation 48 sets out the circumstances in which regulations 45 to 47 cease to apply and regulation 49 sets out interpretation provisions for Part 13.

Regulation 50 provides that the Regulations extend to England and Wales, Scotland and Northern Ireland.

Regulation 51 provides that Part 1 of Schedule 3, which contains the consequential amendments to the Nuclear Safeguards and Electricity (Finance) Act 1978, the Nuclear Safeguards Act 2000 and the Nuclear Safeguards (Notification) Regulations 2004, has effect.

Regulation 52 provides that Part 2 of Schedule 3, which contains general consequential amendments, has effect.

Regulation 53 provides that Schedule 4, which contains the transitional provisions, has effect.

Regulation 54 is a review clause requiring a review of the Regulations before 1st January 2024.

A full impact assessment of the effect that this instrument together with the Fissionable Regulations will have on the costs of business and the voluntary sector is available from the Department for Business, Energy and Industrial Strategy at 1 Victoria Street, London, SW1H 0ET and is published on the BEIS website https://www.gov.uk/government/consultations/nuclear-safeguards-regulations. It is also published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.