ML19253A637
| ML19253A637 | |
| Person / Time | |
|---|---|
| Issue date: | 11/01/1978 |
| From: | Bradford P, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 SECY-78-504, NUDOCS 7909100606 | |
| Download: ML19253A637 (56) | |
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UNITED STATES
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N U
P August 15, 1979
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COMMISSION DETERMINATION
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REGARDING PUBLIC DISCLOSURE I
UNDER THE GOVERNMENT IN THE UNSHINE ACT OF:
Transcript of Discussion l
of SECY-78-504 November 1, 1978 Pursuant to 10 CFR 9.108(c), the Commission has determined that the subject transcript should be released to the public.
/
Jo Hoyle Ac ing Secretary of the Commission 7909100 6> O 6 n.,...--
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1 1
UNITED STATES OF AMERICA
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2 NUCLEAR REGULATORY COMMISSION 3
4 DISCUSSION OF SECY-78-504 - CLASSIFICATION OF 5
SENSITIVE SAFEGUARDS INFORMATION 6
7 (Closed to Public Attendance) 8 9
Commissoners' Conference Room 1717 H Street, N.W.
10 Washington, D. C.
1; Wednesday, November 1, 1978 12 The Commission met, pursuant tc notice, at 11:05 a.m.,
i
-33 I
Joseph Hendrie, Chairman of the Commission, presiding, f
,4 PRESENT:
16 Chairman Hendrie
{
Commissioner Kennedy j
Commissioner Bradford Commissioner Ahearne i
13 ALSO PRESENT:
I 13 S.
Chilk 20 L.
Gossick i
R.
Burnett 21 G. McCorkle i
W.
Parler 22 C.
Stoiber B.
Snyder 23 l
R.
Brady M.
Nordlinger 24 i, 3 1
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P R.O C E E D INGS 2
CHAIRMAN HENDRIE:
This is a closed meeting of the 3
Commission to discuss the matter of classificat. ion of sensitive 4
safeguards information in certain circumstances and in certain 5
facilities.
6 I should note that I asked this paper -- for this 7
paper to come on up at this time.
We are looking at SECY-78-504, 8
which may also be informally titled " Son" of SECY-75-77, which in turn, was the staff's recommendation to the Commission for 9
implementation of the National Security decision reflected in tg Decision Memorandum 347 and pertained to classification of safeguards related information that had to do with places and material, special nuclear material, significant amounts of la, I
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There is a history, I note, ~.ined out in the briefing paper, so I won't attempt to construct it for you, but leave 16 l
that to the briefers.
l 11 6
I would note, for the reason that I have asked for it l
18 l
to come is that it seems to me that dealing with safeguards j
19 information at fuel cycle facilities is a matter that stands 20 i
i before us, and in many ways, if not completely, is apart from
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the question which we have debated over the past year, about
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j protection of security related information at reactor plants.
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Now, the proposition before us here does not propose
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subject for which we have a rulemaking hearing working toward a
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1 conclusion, and we have proposed some legislation in the last 2
session which I would think we would probably want to propose 3
again the next time.
So that -- it is a closely related subject, 4
but the actions contemplated here don't reach to that, taking 5
any substantive action.
6 But on the fuel cycle side, it seems to me that we have 7
the somewhat uncomfortable situation that we have never moved 3
forward to implement the classification system authorized under 9
NSDM-347, but that we find it necessary to treat certain 10 safeguards related information about these facilities as though 11 it were classified ---
MR. BURNETT:
Carefully, if it might be said.
12 l CHAIRMAN HENDRIE:
-- It is a bit of an anomalous 13 situation and leaves us, to a certain extent, in a peculiar
,4 situation with regards to that information, or for instance, l
treating the MUF information, withholding it, and it comes out I
to in six month cycles.
l 17 l
Well, that was one of the proposals in the paper, j
13 75-77 and it is repeated here. It has never been blessed by 19 Commission action, but we keep on doing it, and I will note 20 i
that on the ERDA side which is now DOE side, that they, in fact, 21 implemented classification as authorized under NSDM-347.
There
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are facilities where they have contracts, we license the facility,.
23
) their contracts are covered by the NSDM-347 authorized classi-24 fication, but the balance of the facility's safeguards related information, which would fall under our control is no*. so
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designated, and I guess, is protected by -- maybe I'd better 2
not ask how it is protected.
3 As this point I will ask, Lee, please go ahead 4
with the briefing.
MR. GOSSICK:
Okay. Mr. McCorkle will brief the 5
6 Paper, Mr. Chairman.
7 Go ahead George.
MR. McCORKLE:
May I have the firs ~t chart, please.
g (Slide) 9 The general subject of protecting safeguards 10 information and sensitive safeguards information has been around f r some time, and the staff has studied it quite extensively.
12 l The issue has actually boiled itself down to identifying 3
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the best means to protect the information and essentially three l
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j various methods have been concentrated on by the staff.
l' These are:
protect information either under l
10 proprietary exclusion under 10 CFR Part 2, to protect it as i
17 classified information, or to seek legislation.
13 Regardless of the divergence of opinion as to the best 19 method to protect it, it has generally been agreed, and in fact, 20 I know of no disagreement within the staff that it isn't necessary 21
! to protect certain categories of sensitive safeguards infor-22 l
mation.
23 Now, at this time, just for the initial purposes, I'd
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t like to define sensitive safeguards information as including that class of information, which if it came in to the wrong hands,
if
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would have the potential for causing damage to the public health 2
and safety, or the national defense and security.
I make it 3
all encompassing.
4 COMMISSIONER AHEARNE:
Do you at some later point 5
differentiate?
6 MR. McCORKLE:
Yes, I do, sir.
7 Now, as the Chairman indicated, SECY-77-75 was an action plan for the implementation of a decision memorandum 3
from the National Security Council and in June of this year, 9
a new Executive Order concerning classification authority came g
out and I believe that was one of the reason, the Chairman asked that we reexamine the impact of that new Executive Order on the existing action plan.
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Before we go on, I think -- although I have been l
I'll give a little background,!
j preempted a little bit, I might say, 15 CHAIRMAN HENDRIE:
Ignore what I said and do the 16 background, because it may -- (a) it won't hurt to repeat it, 17 l
and (b) it is more likely to be accurate and at least it will l
13
} have a slightly different flavor from my version.
19 COMMISSIONER AHEARNE:
And (d) some of us may not 20 i
be listening.
~~
COMMISSIONER BRADFORD:
Or might not listen this time.
So
~~
i COMMISSIONER KENNEDY:
Or both.
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j MR. McCORKLE:
The National Security Council directed nUa study in January of 1975 through the issuance of NSDM-216, to
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25 examine the impact on the national security that the telease of 1
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certain safeguards information might have.
Specifically, they 2 I were concerned about the physical protection plans, that is, for 3
Protecting materials, formula quantities materials, the manner 4
in which we would handle inventory discrepancy or MUF data, and 5
control and accounting information in general.
This study was headed up by Dr. Seamans who headed up 6
an ad hoc group with NRC serving in an advisory or a consultant 7
role.
g ERDA and NRC went back with independent recommendations to the National Security Council.
The ERDA recommendation was much more general than that given by the NRC.
In other words,
they said just in a broad-brush treatment, that sensitive 12 safeguards information without much of a further definition, should 13 be protected through a classification regime under the Executive 14 t
Order 11652 and that they believed that protection plans for j
light water reactors should also be protectel by the same 16 I
mechanism.
I 17 l
In December of
'75, NRC went back to the National l
IS Security Council indicating that our recommendations would go 1^9 for classification under the Executive Order of physical 70 protection plans for facilities possessing significant quantities l
e, of strategic special nuclear material, to classify for six i
I l mon ths, or until the end of an on going investigation, information l
J j concerning inventory discrepancy data, and they recommended that 24 h a decision be deferred on the classification of protection plans
'l 23
,on LWRs pending completion of the GESMO.
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In January of
'77, NSDM-347 indicated that the 2
President had reviewed the study and a determination had been 3
made that in view of the serious consequences that might be 4
expected if the material, significant quantities of special 5
nuclear material, were to come into the wrong hands, that 6
information concerning its protection should be classified 7
under the Executive Order.
3 It also indicated and agreed with the recommendation g
inventory discrepancy data also be classified for six months or until the completion of an on-going investigation, and agreed 10 with the deferment of the decision on LWRs.
NSDM-347 served as the basis for our developing SECY-77-75 which, in effect, was an action plan to implement la the directive contained in the NSDM-347.
14 l
COMMISSIONER AHEARNE:
In either the study or our comments to the study was there either the issue of health and 16 i
safety, as well as national security raised or a distinction 17 made?
13 l
MR. McCORKLE:
The distinction was made from the I
all information contained in a physical protection l 19 standpoint that i
20 plan, obviously, and it wouldn't in itself, not each item would
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be classified.
It would be dependent upon a guide.
They felt
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i tha c the public health and safety type of information would be l
23
- protected, at least at that time, under a proprietary deal,
- although there were indications at that time that we should go i
,lfor a legislative proposal to protect information which would not
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be classifiable under the criteria of the Executive Order.
2 (Slide) 3 In April of
'77, we responded to an NSC request from 4
earlier that year to review active NSDMS to see if we felt they 5
should still apply.
The Commission went back and reaffirmed or 6
reconfirmed the Commission belief that the recommendations in 7
the NSDM for the classification program should continue.
3 In June of '77 we went back to the NSC again, at which 9
time we pointed out that the staff was working on a plan to 10 implement the provisions of 347, and at that time, added the recommendation that protection plans for LWRs should also be 7,
protected by classification regime under the terms of the Executive 2
l Order.
l 13 i
Now, as you know, the classification program, either
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l for fuel cycle facilities or LWRs ---
1.,
COMMISSIONER KENNEDY:
It should be noted in these cases 16 that these were not unanimous views.
17 MR. McCORKLE:
That's absolutely correct.
13 In every communication to the National Security 19 Council, Commissioner Gilinsky expressed a dissenting view.
If I could summarize, primarily he was concerned that a clear 21 enough case had not been made linking the information to the I
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national defense and security, thereby, satisfying the intent of 23 i
the Executive Order.
And secondly, he believed that other o
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l options had not been fully examined.
i COMMISSIONER AHEARNE:
Didn't he also question whether 301$I50 I
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a clear case could be made?
2 MR. McCORKLE:
Yes.
3 COMMISSIONER AHEARNE:
And I thought it was fairly 4
explicit that he believed that a clear case could not be made.
5 MR. McCORKLE:
Well, he made that statement prior 6
to the issuance of NSDM-347.
From that-point on, I think his 7
statements were more inclined to be characterized as saybig he preferred other means to protect them, such as specific g
statutory authority under the FOIA and that while in licensee
,3 hands the issuance of regulations as authorized under 161(i) of g
the Act.
11 COMMISSIONER AHEARNE:
Now, in your -- this June 30th letter, your paper says that it requested the NSC views.
MR. McCORKLE:
Yes, sir.
l COMMISSIONER AHEARNE:
And I gather you never received 15 a response?
16 MR. McCORKLE:
We have never received a response, 17 I believe,--l that was my next point, to the letter, and the staff, Well, of course, that's a subject of interpretation, whether it 19 is views on the LWR protection or views on our reaffirmation or 20 reconfirmation of the provisions of 347.
That is debatable.
9,
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The letter did indicate and noted that the s taf f was working oo I on the implementation program, that at 'least within the
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framework of that contained in 347.
U MR. SNYDER:
Of course, the NSC is aware that we 25 nave made MUF releases which is part of 347.
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MR. McCORKLE:
Yes.
2 COMMISSIONER AHEARNE:
What are the steps you have 3
taken since June of '77 to find out why they didnt' respond 4
or what their position was?
5 MR. McCORKLE:
Concerning the LWRs or concerning ---
6 COMMISSIONER AHEARNE:
No, considering we sent them 7
a letter and I was just wondering what steps you have taken g
here to ---
9 MR. McCORKLE:
Well, I think in essence, if I could, 19 l
the staff did not feel compelled to again query the NSC concerning the instructions contained in NSDM-347, that the 3,
l a tion plan for its implementation was before the Commission 2 !
I in the form of SECY-77-75.
I think I did discuss it with OPE la.
on several occasions.
Bernie, I talked to you on it.
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i MR. SNYDER:
And I had called it to the Commission's I
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1, attention that it was still pending.
l 16 l
I MR. McCORKLE:
Right.
17 l
COMMISSIONER AHEARNE:
That is not the point.
The I
13 j
question is the letter that was written says :
"For the 19 j
foregoing reasons the Commission recommends that the NRC be j
20 i
authorized to do something, and we urge timely decision on this 21 l
j question."
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I It seems to me we are asking for an NSC response, and
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we didn't get one, and I was just asking what steps have we taken l
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I to query them since June 30th, '77?
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MR. McCORKLE: The only steps that I can say is we have 3311b -
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discussed it several times with OPE and with the staff,
- and, 2
Bernie, I think you were attempting at one time _to get follow-up 3
on it, I think.
4 MR. SNYDER:
During the summer of
'77, a year ago --
5 a little over a year ago -- there were a number of inquiries 6
back and forth from NSC to our offices, some of the relatively minor details of this June 30th letter.
It was kind of a 7
g vernment-wide review of all the NSDMS and We got caught up in 3
tha t, and at that time we didn' t have a quorum, and the question 9
was posed as to whether the current setup that we had, whether 0
we still felt that the June 30th letter was that the Commission's opinion and our answer was there has been no opinion since then, so therefore, itmusthavebeen--itmustremaintheCommission's!
13 opinion.
It was left kind of in limbo at that point.
14 COMMISSIONER KENNEDY:
Well, it certainly would have, i
15 l
at that point, reflected the views of the two sitting Commissionery,
16 i
since it contained the Commission's view, which represented two, i
17 l
and the dissenting view which represented the other one.
13 So whatever was before them, represented the views of all sitting 19 Commissioners, whatever that was.
20 MR. SNYDER:
Yes.
21 CHAIRMAN HENDRIE:
John, the real answer to your I
~~
l question was that shortly af ter July 1st, by two months later, you know, by sort of the time you may have expected an NSC 0-i
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h, answer to have gotten through the mills, we had initiatives i
wxler way here to draft and move forward with a legislative we
i 12 1
proposal that would deal with the LWR security plan question 2
in particular, as well as some other things on a new statutory 3
basis.
4 I began to discuss those proposals with Congressional 5
people, oh, I suppose in the fall, and began to look here at 6
draf t material sometime af ter the first of the year, threshed 7
around at some length getting eventually to an agreement and 8
made our formal transmission of this stuff t'o the Speaker and 9
the President of the Senate, was in May of that legislation.
Now, while this initiative was going on, why the 10 Security Council answer on LWRs, which simply at that time was hold,pending the outcome of this legislative issue.
2 COMMISSIONER AHEARNE: Was it on hold because we asked i
13 them to hold it' CHAIRMAN HENDRIE:
(Nods in the affirmative.)
13 I
i COMMISSIONER AHEARNE:
We asked them not to provide 16 l
a response?
17 CHAIRMAN HENDRIE:
Suggested that there were other 13 things going on and that it wouldn't be particularly useful at 19 the time.
20 I
COMMISSIONER AHEARNE:
Is that hold still sitting there?'
21 I
CHAIRMAN HENDRIE:
Yes.
~~
l COMMISSIONER AHEARNE:
Okay, so that we have asked 1
23 i
i for no response.
l MR. McCORKLE:
The action plan, as I indicated earlier,
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still would apply if a decision were made to go ahead.
- l of course, o
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13 1
I'd like to go on to the Executive Order that is due 2
to become effective on 1 December of this year.
3 The authority, in so far as the Commission is concerned 4
for classification, is the same to all extent and purposes, as 5
that contained in the previous Executive Order 11652.
6 Now, the new Executive Order does have one feature that 7
the old one did not, it itemizes several specific categories of g
information.
Now if information falls within those, then 9
information may be classified.
One of those categories is U.S.
Government Programs for Safeguarding Nuclear Materials or i
10 l
Facilities.
That was essentially put in at the request of the y
NRC in some correspondence with the Executive Branch, but I
merely because information falls in that general area does not l
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mean that it has to be classified.
It has to go one more test
.4 and that is:
can a reasonable determination be made that j
15 identifiable damage to the national security would take place if l
16 j
f the information came in to the wrong hands.
17
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So from one stand point, that is quite analogous to 13 the criteria from the old Executive Order which made the f
19 j
distinction by each level of classification.
20 i
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CHAIRMAN HENDRIE:
George, we might note that although
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l we had read the new Executive Order in precisely that way and
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believe that it would be maintained, the classification powers
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l and so on, that I find a rather helpful authoritative J] interpretation from Dr.
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Brzezinski which was turned up, I guess, d
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1 14 1
by the security people, in the course of clarifying things. It 2
is an exchange of correspondence between Dr. Brzezinski and 3
Senator Glam, in late August or early September, which I had 4
not seen and which I'm very happy to have to put in the file against my copy of the Executive Order.
I think it makes clear 5
and explicit that our interpretation is, in fact, correct and 6
this material was intended to be, by the draf ters of the Order 7
and so on.
g MR. McCORKLE:
Yes, sir.
Of course, if a decision is made to go ahead with classification, a plan to implement a program of that type is pretty well along, it is appended to the old paper.
12 Classification, of course, is not the only way to protect sensitive safeguards information.
For instance, we have 14 the present practice -- if I could have the next chart, please --
15 (slide) 16 I
-- which is based on the provisions of 10 CFR Part 2, l
17 l
whereby we protect information of this nature as proprietary.
13 The staff generally sees several defects by using this or its lo continuation.
It does not address protection of the information
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while it is in the licensee hands, nor does it provide for any 4
i l establishment of the trustworthiness of individuals who have j access to the material.
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l The legal department tells us that they have some 44 24 l doubts that it is strong enough to withstand a legal challenge i
,_40 under the Freedom of Information Act.
There has only been one sallid i
i 15 1
challenge in the past, it was held from the government, however, 2
there is a challenge right now, I don' t know what the status of 3
it is, you might know Bill, but it does have a little bit of a 4
shaky foundation.
That's the Abbott case, I believe.
5 MR. PARLER:
Yes.
The situation about the uncertainty 6
of the foundation was discussed in the first staff paper, as the Chairman 7
SECY-78-613 which provided the Commission, 3
requested, with alternativer which eventually, after a series of 9
' ater papcrs led to the legislative proposal which has been 10 submitted to the Congress.
11 It certainly is, as that paper pointed out, questionable whether the prop,rietary data label is properly applied to 12 information such as this, although the government's position has 13 been sustained by one United States District Judge.
If there is
- 4 hotly contested on that issue, our position is certainly l
g questionable.
It might not prevail.
l
,,20 MR. McCORKLE:
May I have the next chart, please?
l l,e 1
(Slide) l 13 l
Mr. Shapar's staf f earlier this year developed an NRC i
I 19 l
legislative proposal, the adoption of which would correct these 20
, defects and, in addition, would provide the mechanism for the 21 l
22
' protection of information -- sensitive safeguards infermation which
'would not meet the strict application of the criteria contained I
in the Executive Order.
24 This was sent to the House and the Senate in May and
- s H
i 3,311I50 i
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16 I
the transmittal letter recognized that the Commission did have 2
authority, under the then existing Executive Order, 11652, to 3
protect such information under a national security classification 4
regime; but it noted at the same time that there was no law 5
to protect unclassified NRC safeguards information.
6 The distinction comes in between the requirement to 7 l protect informer. ion to protect the public health and safety, and 8
the need to protect information_that might damage the national 9
security, as well as the health and safety.
The latter, of course.,
10 falls under the classification regime and would be responsive to 11 the criteria contained in the Executive Order.
COMMISSIONER AHEARNE:
Could you give me an example 12 so that I can ---
13 MR. McCORKLE:
Well, up until this point, supposing we I
l l
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l went back to the NSC at this time and asked them for a decision j
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on the applicability of the provisions of the Executive Order to Lo l
LWR protection plans.
l Assuming, just for the sake of discussion, they came l
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back and said:
this would not meet the criteria ---
19 COMMISSIONER AHEARNE:
Why is that safeguards?
i 20 MR. McCORKLE:
I think that the means of protecting an 21 LWR would certainly, in the wrong hands, present a potential to 22 damage the public health and safety and I think we would wish 23 to protect it.
I'm merely using it as an example.
If the 24 l
l National Security Council indicated that there was not a link to the Executive Order, then we would have to protect it some way.
1 OO11b/
I
17 1
COMMISSIONER AHEARNE:
I have missed something then.
2 CHAIRMAN HENDRIE:
Let me try and answer.
3 COMMISSIONER AHEARNE:
Physical security and safeguards 4
are the same thing to you?
Is that correct?
5 MR. McCORKLE:
I misspoke.
I'm talking physical 6
security.
7 COMMISSIONER AHEARNE:
But that's what this says, 8
this says safeguards.
9 MR. SNYDER:
We use those terms interchangeable.
10 COMMISSIONER AHEARNE: They are interchangeable?
11 MR. SNYDER:
Not like the IAEA.
12 MR. BURNETT:
Except when you are dealing with the
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13 international.
14 l
MR. McCORKLE:
IAEA safeguards is only control and I
l accounting.
15 l
COMMISSIONER AHEARNE: That's what I thought it was.
3-uo CHAIRMAN HENDRIE:
But when we talk here in general 37 t
about a briefing on protection of sensitive safeguards information,I i
g the title of this meeting, safeguards here means physical security g
information, material and accounting control information, materi al unaccounted for information, a whole range of stuff.
j t-COMM.'.SSIONER AHEARNE:
Fine.
22 I
CHAIRMAN HENDRIE:
In that category, it is a general 7 _,
j term.
Koep in mind, of course, when we get to talking about IAEA 24 l matters and export matters, then they are going to be ---
25 H
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18 1
COMMISSIONER AHEARNE: So the primary concern is the 2
physical security of light water plans, power reactors?
3 MR. McCORKLE:
No, no.
I merely -- you asked to give 4
an example of each, one public health and safety and one on the 5
national security.
And I merely said:
if the National Security 6
Council said:
well, we can't apply the Executive Order to 7
LWR physical protection plans, we would certainly need a 3
I mechanism to protect them and if they are not classifiable we 9
have to have some way to protect them.
10 CHAIRMAN HENDRIE:
To put it a little more straight-
_3 _,
forward, the reason you would like to keep people from sabotaging i a light water reactor is that you don't want the possibility of I
2 3
l excessive release of radioactive material.
It is a public health i 13 i
I and safety proposition, primarily.
l i
l COMMISSIONER AHEARNE: Right.
l 5
CHAIRMAN HENDRIE:
You may be able to make an argument.
j Ao l
that if they damage a power plant this af fects the power system l
./
and make a connection in the national security that way.
As a i
personal view, I have always felt that was a long stretch and it 19 I
is the primary reasor
'at I have looked for new authority and l
20 gone forward wiB m'
egislative proposition to say it is perfectly rationa_ to prctect the reactor security plan on a I
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! health and safety basis, but we don't have that now in the 23 Atomic Energy Act as the statutory authority.
24 1
l Okay, so that's a health and afety aspect.
25 i
,i 19 1
COMMISSIONER AHEARNE:
You have it but it is under the 2
Proprietary?
3 CHAIRMAN HENDRIE:
Yes, and the proprietary really is 4
stretching things. I think if we get in to -- company proprietary 5
information is protectable if it confers commercial advantage is 6
the primary under-pinning, as I understand it, and I think we 7
are g ing to have problems trying to make that case really stick over the long term; whereas, there are places where I think g
you can see where the connection to the national security matter 9
is muCh more accute.
If somebody, you know, gets into NSF Erwin and helps themselves to a couple hundred kilograms of weapon's grade waterial, I'm willing to say:
Gee, yes, that is beginning to get over in to the national security.
14 COMMISSIONER AHEARNE:
There is no question on that issue.
15 i
CHAIRMAN HENDRIE:
I wouldn't think so.
l i
16 j
COMMISSIONER AHEARNE:
Because that is subject to j
l 17 I
classification under the ---
l MR. BURNETT:
Well, we say that there is no question, 19 except that we have not implemented NSDM-347 yet, however.
20 l
COMMISSIONER AHEARNE:
Yes.
77
~~
CHAIRMAN HENDRIE:
Onward, George.
77 MR. McCORKLE:
All right, sir.
~~
3 7
The next one please?
(Slide) i COMMISSIONER BRADFORD:
When you talk about implementing q
d o.34 s - on oOkadU 1
20 1
347, we have been fairly jealous in some respect in saying that 2
doctrines like that don't have direct legal applicablilty to.
3 Is there something different about national security memoranda 4
that say CEQ utterances on what NEPA means?
5 COMMISSIONER KENNEDY:
I hope so.
6 COMMISSIONER BRADFORD:
I'm talking about the legal 7
applicability to the agency.
8 COMMISSIONER KENNEDY:
That's different.
9 COMMISSIONER AHEARNE:
Well, just to get it clear, are 10 you saying:
Is there a difference between a Presidential 11 Executive Order and a CEQ Order?
COMMISSIONER BRADFORD:
If that is the difference then 17 that may be the answer, but in terms of its applicability of an 13 i
independent regulatory agency, is it clear that even the President-3~4 ial Order applies to us?
,g COMMISSIONER KENNEDY:
We have asserted that it does not.
j to COMMISSIONER AHEARNE:
Under national security?
l
,,1 6
l MR. STOIBER:
I think there may be a difference in terms of the constitutional powers of the Presidency in the national security and foreign policy area; however, the environ-i 20 i
mental powers that we exercise are statutory in nature and I think:
21 l
we find a difference there, however, I think in the general sense
~'
the Commission has taken the view that it has the ability as ar.
I 23 independent agency to judge which of the Executive Orders that 24 it chooses to abide by and which it does not.
25 h
H COMMISSIONER AHEARNE:
Carl, I thought there was an l
l 3311T I
i 21 1
an explicit law for classification and security classification 2
which gave the President the authority to control ---
3 MR. STOIBER:
I think there is a statutory basis there 9'
also.
5 COMMISSIONER AIEARNE:
But exclusively to control all 6
federal agencies, including independent ones as far as national 7
security classification went.
8 MR. STOIBER:
Yes, I think that is true, as well as, 9
for example, in the budget area there are certain specific ---
10 COMMISSIONER AHEARNE:
Yes.
11 COMMISSIONER BRADFORD: That's what I was wondering is 12 whether the national security or classification statutes have 13 a different reading ---
l i
14 l
COMMISSIONER AHEARNE:
I think they do. I would want 15 one of the lawyers to check to answer your question, but my i
'6 understanding is they did.
COMMISSIONER KENNEDY:
It is my understanding that I
17 there is only one national security classification system and it 18 is applicable to all of the government and those dealing with yg 20 COMMISSIONER BRADFORL:
Certainly the statute -- what you are saying is ---
I t
COMMISSIONER KENNEDY:
And that conveys to the 23 I
i President and to the president alone, the authority to 24 i implement, but that begs the question of the Executive _ Order 25 J
H l
1 % " f 'l
( } ".T eJ 1 'll L 5 ?
- i 22 1
sort of business, where the Commission has sort of the view 2
that it shall choose whether -- if it is up to it, to decide 3
whether it will abide by an Executive Order or whether it feels 4
the Executive Order is applicable.
5 MR. SNYDER:
We did contribute to that Executive 6
order NRP sent us.
7 COMMISSIONER AHEARNE:
I wouldn't want to use that 8
as the criteria.
9 COMMISSIONER BRADFORD:
Well, in any case, we have 10 obviously choosen in this case to implement the points at th, l
11 movement, but I was curious ---
COMMISSIONER KENNEDY:
There is nothing else to implement.
12 I
If there is going to be any kind of a national security related l
3 I
1 program, it has to be one consistent with that document, because l
n I
there isn' t any other document to be consistent with, unless we i
created one, and we have no legal authority to do that.
lo, MR. PARLER:
Except for restricted data.
l COMMISSIONER KENNEDY:
Except for restricted data, i
18 l
that's right.
19 COMMISSIONER BRADFORD:
Do you have any idea about 20 l
whether the new Executive Order supersedes the NSDM now?
21 MR. STOIBER: The new 12065?
j 22 l
COMMISSIONER BRADFORD:
Yes.
Supersedes 347.
23 MR. McCORKLE:
No, sir.
11652.
24 l
MR. STOIBER: Well, it does.
t ll COMMISSIONER BRADFORD:
It clearly supersedes the old
~~
U a
.i (h
3' ? Lii' un
23 1
Executive Order.
MR. STOIBER:
Yes, I think our question was whether ---
3 COMMISSIONER AHEARNE:
345 is a NSDM, it is not an 4
Executive Order.
5 MR. STOIBER: But see, our legal question is whether 6
NSDM-347 was promulgated before the enactment of the new Executive 7
Order had support in the new Executive Order to cover the 3
actual statement during the interim which is ---
9 COMMISSIONER AHEARNE:
Well, NSDM has no legal effect 10 on it us at all, or shouldn't.
It is an interesting thought, 11 I guess.
12 MR. STOIBER:
I think you might find some support in 13 the NSDM if you werent challenged.in court on actions you would l
I 14 take, perhaps not binding the agency, but ---
i COMMISSIONER KENNEDY:
I'm not sure about that either.
I yg I guess we will have to get some expert to go back and review 16 the National Security Act.
j
^
MR. BURNETT:
But in truth, we didn't take any actions g
based on NSDM-347.
19 MR. SNYDER:
MUF release.
20 i
MR. BURNETT:
They were the only actions, though.
l 3
2, I
j Do you think it is worth while that we try to get back 22 I
to the presentation here?
23 CHAIRMAN HENDRIE: Well, if you hang on and give people 24 l
a chance to -- there is ucme thumbing of papers going on over here.
35 L
N 331174 i
I
24 1
The sort of question, I think you are looking at is 2
NSDM-347 is an interpretation by the National Security Council, 3
presumably it would be with the Administration's full blessing,
'4 of the Executive Order, the 11,000 series Executive Orders, the 5
- previous -- or actually, it is still in force at the moment and 6
will be until December what -- December 1st?
7 MR. GOSSICK:
1st, yes sir.
3 CHAIRMAN HENDRIE:
And I guess it is a fair question, 9
now on December 2nd isn't NSDM-347 still an effective document, 10 will its interpretation of the intent of the Executive Order 11 transfer to the new Executive Order, and I would guess that one 12 of the reasons that we were asked our opinion on 347 as part of 13 a review of those things, part of that had to do with which of l
l 14 those would be transferred forward and be effective under the i
l 15 new Executive Order and which would not.
16 COMMISSIONER AHEARNE:
You weren't asked explicitly j
i for a view of 347 were we?
l
^7 3
l CHAIRMAN HENDRIE:
Yes.
i 8
l 7
COMMISSIONER AHEARNE:
We were asked ---
9 COMMISSIONER KENNEDY: They asked all commissions.
0 COMMISSIONER AHEARNE:
What you have to remember is l that 347 was not issued under the the current administration.
It was issued under the previous administration, and in the normal process with a new administration coming in, it is to go
! out and say to every agency, review this whole host of documents 25 i
u
'l h.
a
.i
i l
25 1
which are in existence, which ones are you having problems 2
with, which ones are you using, et cetera.
It is in that 3
context that the request came in and we responded.
Now, I think if you are really concerned does 347 5
apply af ter that date, you have to ask that explicit question.
6 CHAIRMAN HENDRIE: Well, it could very well.
7 MR. GOSSICK: Wasn't there a piece of paper that came 8
out that confirmed that 347 did remain ---
9 MR. McCORKLE:
Well, we went back in April and re-10 confirmed the position of the Commission.
11 MR. GOSSICK: Yes, but I thought it was the result of 12 all that process you have just descirbed, I though I saw something l
13 that s aid 3 4 7 ---
t 14 MR. McCOdKLE:
The February letter -- in February ---
13 COMMISSIONER KENNEDY:
That was two years ago.
16 MR. GOSSICK: Yes.
17 MR. McCORKLE:
But it was after the new administration. l COMMISSIONER KENNEDY:
Yes.
ig MR. GOSSICK: Yes.
yg COMMISSIONER AHEARNE:
Do you have something back from 20 them?
21 j
MR. McCORKLE:
No, we have nothing back. All they asked was if we affirmed it, and we went back and said:
Yes, we 23 I
i affirm it.
lj 24 COMMISSIONER KENNEDY: And nothing was done and it is still 25
}
,, ~..
M n
26 1
on the books as an NSDM.
That's a different question all together 2
than the current question which is :
Does it have effect af ter 3
December 1st when the new Executive Order come in to being.
4 MR. SNYDER: It makes reference to the old Executive 5
Order, for example.
Can one assume it makes reference to the 6
new one, and I don' t know whether you can make that assumption.
COMMISSIONER KENNEDY:
This is a question one has to 7
ask.
g COMMISSIONER AHEARNE:
Right.
9 MR. SNYDER:
I think that's what Reamer's question O
was, really.
We ought to ask him that question.
CHAIRMAN HENDRIE: Well, one of the results of this 12 l
I discussion may be to ---
l 13 COMMISSIONER KENNEDY:
I am
. I'm not sure what the 14 l
relevance of the question would be.
What difference does it make?!
15 COMMISSIONER BRADFORD:
What happens if the answer is l
16 no?
17
[
COMMISSIONER KENNEDY: Yes.
What difference does it make?
i 19 COMMISSIONER AHEARNE:
I don't know that it makes l
19 any relevance, but the ssue seems to be coming up:
Is 347 20 applicable?
and if it is really a problem, the way to find out r
is we ask and hopefully somewhere before November 30th.
~~
77 COMMISSIONER KENNEDY:
I guess that's right, but now,
~~
77 having -- and I agree with that 100 percent.
But I'm trying to
~~
i i figure, what difference does it make in whatever the answer is, 25 and that's Peter's question too, I guess.
Suppose the' answer is
, ~. -,
9312<<
j
1 I
27 1
no it doesn't.
Well, so what.
What does that have to do with 2
our discussion this mornign.
3 MR. McCORKLE:
There is one school of thought, that if 4
the information, regardless of NSDM-347, meets the criteria of 5
the Executive Order then it is not an optional matter of whether 6
you classify or whether you don't.
7 COMMISSIONER AHEARNE:
It seems to me to be an 3
intelligent route.
9 COMMISSIONER KENNEDY: Well, no, I don't think that it 10 says that it must be classified, it says only that it may be.
11 MR. McCORKLE:
Right.
If the classification authority, 12 though, makes the link that it reasonably could be expected to 13 cause identifiable damage ---
i i
14 COMMISSIONER KENNEDY:
Ah, okay.
Then there is no i
i 15 question.
16 MR. McCORKLE:
-- then there is no question.
It has 17 to be classified.
I i
13 CO!!MISSIONER KENNEDY:
That's correct.
I 19 MR. McCORKLE:
So, I mean, 347 doesn't really i
l 20 pertain to much.
7, COMMISSIONER KENNEDY: That's right, notwithstanding i
l 347.
l So the answer is, it really doesn't make any difference j whether 347 remains in effect or whether it doesn't.
The question:
_4 j
- remains the same on this table this morning, then.
I!
l d AJ ' R e;
9.s 4
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i
28 1
MR. BURNETT:
With respect to 347, if we had re-2 affirmed our position, thereby indicating that we did not have 3
a problem with 347, would the Administration have done 4
anything?
I mean, wouldn't that have left it in force?
They w uld have only reconsidered it if we had indicated a problem.
5 COMMISSIONER KENNEDY:
That doesn't necessarily 6
follow at aas.
i COMMISSIONER AHEARNE:
347 applied-to a lot more than g
us.
9 COMMISSIONER KENNEDY: But that doesn't necessarily follow at all, moreover, just because you think it is a good idea, that doesn't necessarily mean that the Administation or 12 the National Security authorities think so, for other reasons,
13 1
they may not conclude this is the right position.
l 14 COMMISSIONER AHEAFNE:
They are reviewing some --
I 15 l
I don't know how many, 450, 500 to the extent at that time, and 16 i
I would guess this particular one might have been somewhat 1
i l/
down the list for review.
l l
13 l
CHAIRMAN HENDRIE:
Let us return to the main line of 19 the briefing.
If you can take us back into that channel, 20 l
George.
v
"~
MR. McCORKLE:
Yes, sir.
Well, to continue the communication to -- the House
-~
71 and the Senate proposed that the NRC have explicit statutory 24 basis to protect sensitive safeguards information from unauthorized 25 l disclosure.
~
a 1:
9n.3 >i. - ( n sm 1
I l
29 1
I think it is important to stress one thing.
If 2
such legislative authority were to be granted and implemented, 3
it might not eliminate the need for a classification program.
4 I just indicated that there is a distinction between that 5
category of information which meets the criteria of the Executive 6
Order, and therefore, would necessarily be classified in the minds 7
of some, and that sort of information which would not meet the 8
criteria but requires protection and that would fall under the 9
legislative regime.
10 I think it is necessary to make certain that we 11 understand that both programs from that approach would be l
12-necessary to achieve the objective of overall protection of 3
sensitive safeguards information.
1 1
Could I go on tc the next slide then?
34 l
(Slide)
This brings us to our alternatives.
Alternative One 6
t is the -- well, let me first of all say we have considered in
.7 I
the paper, three major alternatives, the three basic ones.
There are probably some variations of them or combinations of I
them that could have been developed, but we felt these were i
20 i
i the three most viable and pertinent to the issues at hand.
21 The first alternative is tha one which the staff l recommends and that is to approve a plan to classify sensitive f safeguards information for facilities possessing significant
~~
24 l
quantities of strategic special nuclear material, under the 25 autho ity of the Executive Order, that is, national security i
N 1
o,d x.? '3f)
-c
I 30 1
information, and continue to support the enac tment of the 2
legislation for the protection of information, which is not 3
classifiable although we feel requires protection in the 4
interest of the public health and safety.
5 At the s ame time, to defer a decision on the 6
classification of the LWR security related information and go 7
back to the National Security Council to solicit their views 8
as a follow-up to our June 30, '77 letter.
9 COMMISSIONER AHEARNE:
I thought that (b) you had said, 10 when I asked as an example of unclassified safeguards information you had used as your example light water reactor security ---
MR. McCORKLE: That was an example.
I don't say that 12 it is all encompassing.
l 13 I
COMMISSIONER AHEARNE:
So therefore, rather than
}
deferring decision, which we are really doing is going for la_
j legislation.
lo,
{
MR. McCORKLE: Well, we are not saying that LWR I
17 I
plans is the only thing that might fall into that category and -- I 18 l
COMMISSIONER AHEARNE: But it would fall under it.
(
19 l
MR. McCORKLE:
Please, I don't wish to make a case for i
20 or against the classification of LWR protection plans. I prefer l
21 l
l l to leave that to NRR represented.
22 l
COMMISSIONER AHEARNE:
No.
My only question -- I asked
,1
~~
for an example of unclassified safeguards information and you 24 l
l gave me light water reactors ---
25 90'.
a l
I 31 1
MR. McCORKLE:
I said, if the National Security 2
Council said ---
3 CHAIRMAN HENDRIE:
You remember, George was more 4
careful.
He said an example would be as follows:
If the
-5 National Security Council said it wasn't classifiable, then 6
the reactor security plans would be such an item.
7 Now, when I attempt to help out, why, I didn't so 9
qualify because I feel -- well, you know how I feel about that 9
information.
10 COMMISSIONER AHEARNE:
But that classification of 11 light water security related information is embeded within 12 the legislative proposal?
MR. McCORKLE:
It could be protected under the 13 legislative proposal as the type of information that needs I
protection in the interest of the public health and safety.
j CHAIRMAN HENDRIE:
You should understand, John, that la I
for whatever views I individually hold on the matter, that the 17 agency collectively stands, at the moment, in the posture that light water security plans are classifiable.
l COMMISSIONER AHEARNE:
Under what grounds?
20 CHAIRMAN HENDRIE:
Under Section 161(i) of the Atomic 21 i
Energy Act.
22 l
COMMISSIONER AHEARNE:
Which?
I have forgotten what that says.
What is the ---
24 CHAIRMAN HENDRIE:
Oh, God. If says if you have access e:
L una seo Jt)LLQN
1i 32 1
to special nuclear material and so on, why you can require the 2
individuals who have access to be of good character, hence 3
clearances and classify the information.
4 Let me point out that we are now -- there is an 5-active rulemaking proceeding of the Commission underway talking 6
about the need for clearances for people in precisely this 7
situation.
Now, there isn' t much point in having a rulemaking a
hearing about requiring clearances of people, under national 9
security grounds, if you haven't got the authority.
So the 10 official position of the agency is reflected in letters to
,1 the Congress, its position on this rulemaking and everything else, is, in fact, that we do possess the authority to classify
,7 those security plans at reactor plants and require clearances j
13 for people who work in those plants.
_3 4 COMMISSIONER AHEARNE: And when we unravel everything, l
the classification rationale is national security?
16 I'
CHARIMAN HENDRIE:
Yes, sir.
17 I
l COMMISSIONER AHEARNE: Absurd.
13 CHAIRMAN HENDRIE:
Well, okay.
Now you begin to see 19 why I am anxious to get on with this legislation which says:
j 20 i
Hey, health and safety is a reasonable basis, and you don't 21 j
have to have this other paraphernalia, that you could protect the information without having a whole national security 23 regime.
24 Now, -- but you see ---
23
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a
33 1
COMMISSIONER EENNEDY:
It should be assured that the 2
regime that will be established will be all but identical, 3
because there isn't any other way to do it.
It will just 4
have a different color.
Instead of being red we will have cerise.
6 CHAIRMAN HENDRIE: Blue.
Agency blue.
The folder 7
covers will have agency blue instead of red.
g Anyway, you see, then, why George felt it necessary to qualify his example, you see, he doesn't want to be in the g
Position of saying: no, the stuff if:1' t classified.
In fact, 10 that is the agency's formal position and ---
COMMISSIONER AHEARNE:
The " agency" in this sentence is represented by the three of you?
I CHAIRMAN HENDRIE:
It is the NRC's posture in the
,a rulemaking and in letters to the Congress that reflect the I
15 Commission's -- that I have signed that are collegial letters 16 of this Commission, the May 23rd letter proposing the legislation.i, COMMISSIONER KENNEDY: Without that ---
18 CHAIRMAN HENDRIE:
In fact, says we think we -- you 19 know -- that language in there that does it.
Anyway, you know, 20 i
that is a useful thing to understand about the posture.
i Onward, George.
l
~~
77 l
MR. McCORKLE:
Well, the adoption of this alternative
~~
7 ~1 would have certain advantages.
One, it would certainly eliminate i the perceived weakensses in our present use of the proprietary mechanism.
931131 o
l
34 1
It would also ~ provide us with a compatibility with 2
the DOE program, because they have already implement, in fact, 3
their implementation was prior to the issuance of 347.
In that regard, the authority existed for them and for us to classify if the determination is made, but the link exists.
So those 6
would be the two major advantages, and also, it would provide 7
protection, I guess, in a third way to make it a little easier 3
to answer some of the concerns expressed by Congress and some 9
of the past deliberations from their -- expressed some amazement, 10 as I understand, not having been there, at the lack of a 11 mechanism to really hang on to this information.
12 In going to the next alternative, it is the same ---
13 COMMISSIONER BRADFORD:
-Let me -- as you looked at
{
14 Alternative One, see if I have understocd, under Item A, does is that entail any more than a shif t in the rationale for l
l 16 classifying what is already classified?
Would there be ---
j i
17 CHAIRMAN HENDRIE:
It isn't classified is the problem.
l j
l l
MR. McCORKLE:
And we should.
l ig CHAIRMAN HENDRIE: And we should, and in fact, we are 19 trying to protect it as though it were and we are on, frankly, 0
7 pretty darn shaky grounds.
,,c' COMMISSIONER BRADFORD:
What we are doing then -- I i
j used the wrong words.
You would, under that, classify that which
- was now protected, but not classified.
24 MR. McCORKLE:
We are talking -- yes, for specific q
'l 1
., a s 1. : ;
a d i.a'"
s l
i 35 1
facilities and activities.
2 COMMISSIONER BRADFORD: But it neither increases nor 3
decreases the information in the public sector?
4 MR. McCORKLE:
No.
5 MR. BURNETT:
That's true.
6 COMMISSIONER AHEARNE: But it could decrease the 7
information that might be available in the public sector ---
8 MR. BURNETT:
Resulting from FOIA, in particular.
9 COMMISSIONER AHEARNE:
Right.
10 MR. BURNETT: It could result in a negative determination for release.
11 COMMISSIONER BRADFORD:
But at the moment, if you 12 re eived an FOIA request ---
13 MR. McCORKLE: We would deny it normally, under the 3*4 l
propriet'ary extention which is subject to challenge.
l COMMISSIONER BRADFORD: And that might be a problem, okay.l 1,0 l
MR. BURNETT: And we haven't lost any of those yet.
17 j
COMMISSIONER BRADFORD: Then as you go down through, 13 l
the enactment of the legislation would ---
19 MR. McCORKLE: That would permit us to handle or protect l 20 l
or withhold from FOIAs or other requests, information which 21 does not meet the criteria of the Executive Order.
COMMISSIONER BRADFORD:
To be classified.
Now, is I
23
! that information now -- is some of that also proprietary at 24 i
I, the moment?
25 j
MR. McCORKLE: Not necessarily.
We run in to quite a ho g '. '
I
l 36 I
1 few problems.
2 We have come up with some generic studies, and 3
a variety of other things that have come out of DOE, out of 4
Sandia and things of that nature, which if I was an adversary, 5
I would love to have, as to how best to beat a system, but 6
we have no mechanism to protect it.
It is not proprietary in 7
the sense that it is not the site specific thing to one company.
8 It does not meet the explicit criteria of th'e Executive Order, 9
and it is just hanging out in left field and we have a problem.
10 COMMISSIONER BRADFORD:
Okay, so that (b) then does decrease the information that ---
ty l
MR. McCORKLE:
That might be in the public sector 12 l
I if they ask for it under an FOIA, yes, sir.
13 COMMISSIONER BRADFORD:
(c) turns out to look quite 34 a lot like (b).
j j
MR. McCORKLE:
No, (c) and (d) are follow-ups to l
lo, I
our June 30 letter, I mean, we are deferring a decision on LWRs l
1e i
and resoliciting the NSC as to their views on that.
13 I
j COMMISSIONER BRADFORD: But we are, in fact, supporting i
l 19 legislation that would permit classification of light water 20 i
security related information?
MR. McCORKLE:
Well, let me put it this way ---
22 CHAIRMAN HENDRIE:
Which would provide protection 23 1
I through another channel.
24 l
COMMISSIONER BRADFORD:
Yes, withholding stuff that m-i
~~
i was classified.
'i a
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37 1
CHAIRMAN HENDRIE: Just so.
2 I might comment that if I get around to voting on this 3
paper, why, I'm going to vote against the resolicitation of NSC 4
views.
I don't find that useful or necessary at this point to 5
get.
It appears to me that there may be a couple of large dogs 6
that are sleeping peacefully at the moment, and I see no particular 7
reason to run over and kick them because I would mind their bite.
3 COMMISSIONER AHEARNE:
I was going to ask the question, 9
since we have earlier established that the reason the NSC hasn' t 19 responded is because the Chairman asked them not to.
Resoliciting 11 the views, really, the opition is should we ask the Chairman.
COMMISSIONER KENNEDY:
Well, you know, before we 13 drop that question, I guess I would have to comment that 13 I
! Dr. Brzezinski's and Senator Gle m's letters are not the f
l i
pristine clarity with which we normally deal with issues here, it is not all that clear that that question is addressed at all l
Ao in this letter.
l
,,11 j
COMMISSIONER AHEARNE:
I don't think it is either.
18 COMMISSIONER KENNEDY:
Oh, I think that Brzezinski may 19 be thinking he is, I'm not sure that Glam thinks he is.
20 COMMISSIONER AHEARNE:
I thought the issue they were 21 l
i addressing is whether we can classify information that is not
,o
~~
! government generated, but industry generated.
23 I
COMMISSIONER KENNEDY:
Uh-hum.
24 CHAIRMAN HENDRIE:
I think that's right.
q 25 j
~
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't l
I 38 1
COMMISSIONER AHEARNE:
There is no health and safety 2
implication there.
3 CHAIRMAN HENDRIE:
That's right.
I think the question 4
about the connection to national security remains.
5 COMMISSIONER KENNEDY:
That's correct.
6 See, I'm not sure what Brzezinski is saying if you look 7
at it in that ---
8 CHAIRMAN HENDRIE:
I don't think t'he Brzezinski letter 9
is, in effect, an answer to the June 30 th letter.
ig COMMISSIONER AHEARNE:
Not at all.
COMMISSIONER KENNEDY:
I dont' think it is either, but 11 I'm not sure what Glenn thinks it is.
g COMMISSIONER AHEARNE:
Gleri very much was talking about 13 nuclear weapons useable material, the limited use and that.
j i
CHAIRMAN HENDRIE:
The section Glavi proposed dealt with l la, quantities of weapons material.
16 COMMISSIONER KENNEDY:
One of the thinas that set this l
17 chain of correspondence in motion was the concern expressed 13 j
publicly by the senator and others at that time when they found l
19 j
out that one could ascertain the physical security plans of 20 l
l light water reactors by going to the public document room or 21 l
l somewhere else.
22 I
COMMISSIONER AHEARNE:
Sure.
I 23 COMMISSIONER KENNEDY:
So what I'm saying is:
it is 24 i!j not all that clear to me what each of them were saying or that d
1 each realizes what the other was saying.
I just note that for j
9311 l
39 1
the record.
2 MR. SNYDER:
I'm not sure that we have physical 3
security plans in public document rooms.
Do we Jim?
4 CHAIRMAN HENDRIE:
No, not now.
5 MR. SNYDER:
I want to make sure that is clear.
6 COMMISSIONER KENNEDY:
Not now, that's right.
I'm 7
glad somebody said that.
8 CHAIRMAN HENDRIE:
They are stamped " company proprietary 9
and they are tucked away on that basis.
10 MR. SNYDER:
They are locked up in Jim Miller's office, 11 I hope.
I don't know what good that does us.
CHAIRMAN HENDRIE: Actually, there is a footlocker 2
someplace.
13 COMMISSIONER AHEARNE:
What was the history of our
~
l legislative proposal after it got over there.
Were hearings j
held or ---
16 i
CHAIRMAN HENDRIE:
We took a long time to thrash l
l through -- the series of papers on it are 78-611 and it ran all IS j
the way through (f) or (g) or something like that.
19 COMMISSIONER AHEARNE:
I've read the papers, but it 20 i
doesn'* say exactly what happened.
21 COMMISSIONER KENNEDY:
No, he is talking about what 21 i happened on the Hill.
l 23 COMMISSIONER AHEARNE:
What happened on the Hill?
24 i
CHAIRMAN HENDRIE:
It went over formally at the end of 25 1
sa1190 1
l
i 40 1
May. We never got a hearing scheduled.
2 COMMISSIONER AHEARNE:
Were they introduced?
3 MR. PARLER: Senator Hart introduced the bill.
4 CHAIRMAN HENDRIE:
Senator Hart introduced the bill 5
on the Senate side.
It was not introduced on the House side, 6
and we never got hearings.
And as time went along one of the 7
reasons
-- it became clear one of the reasons -- well, there 8
were an assortment of things going on, but one of the difficulties 9
was that people were asking -- there was, in that original 10 legislative proposal a clarification of the Commission's authority to classify things on a health and safety basis.
11 It seemed to me if we were headed in that direction 2
f r things like, perhaps, eventually reactor security plans, 3
1 i
it would be ;ulprul to have the legislation be explicit.
That j
seemed to bother people because when you talk in that direction j
i
-s you at least are providing statutory authority to require some l
z6 l
thousands of people, perhaps, to be cleared.
And that clearly l
is an issue of some sensitivity.
13 i
i So in connection with discussions of this matter with 19 the House, we sent across -- in an answer to some queries --
20 we sent up the 2nd of August a sort of modified proposal.
This I
21 l
was by letters to our committee chairman, not formally to the 22 1hspeakerandthePresidentwh.ichsaid: Look, why don't you take 23 i
that previous legislative package and cut out the clearance l
authorization legislation piece, 24 leave die information protection sections, the proposed Section 147 and we recommend i
o n q S. 0 5 s J O A.
L
- 2 -
i t
i 41 1
that you go forward with that.
So there was that subsequent 2
modification.
3 Now, August 2nd, by that time, why things were in 4
a sufficient rat race so that it was very difficult to get some 5
hearings so that there would be a record on it, and it just ran down to the end of the session without that.
6 COMMISSIONER AHEARNE:
When -- in Alternative 1(b),
7 enactment of legislation, is it this revised version that you 8
have in mind?
9 MR. McCORKLE:
It would support the legislative
.g exclusion of them, yes.
CHAIRMAN HENDRIE:
I think that's a thing that the l
Commission would want to address when we got ready to propose, 13 l
soon after the first of the year, this package, whether -- and 14 l
you sort of have your choice, whether you would like to have 15 the broader package with the expanded classification authority l
16 l
under national security terms, which is certainly going to be I
17 more contentious a proposition, or whether the more limited 13 information protection proposal in Section 147 does adequately 19 l
and you can do without the other, and certainly the more limited packages can be much less.
7,
'~
COMMISSIONER BRADFORD:
Just one question about the 07 h
~~
latter one which I should have asked long ago, to protect a l
9, I
i document from disclosure under FOIA, is presumably only a I
]portionoftheoverallprotectionitwouldneed---
25
~
l 5<y' b s. 4) $. a N
i 42 1
CHAIRMAN HENDRIE:
That's right.
2 COMMISSIONER BRADFORD:
-- just discovery in a 3
licensing case would get you at a particular reactor security 4
plan just as fast.
Does the legislation cover that as well?
5 MR. PARLER:
Yes, the legislation would amend a 6
section in the Atomic Energy Act which now specifically addresses 7
that question.
If you have restricted data or classified g
information involved, the legislation would amend that section t
9 to also extend it to sensitive unclassified safeguards information\\u 10 CHAIRMAN HENDRIE:
And then the protection on the
- y information in that situation would follow the guidelines that i
y; are already there in the law and the regulations which say: you n w, y u rele se -- you construct appropriate safeguards, the i
13 people who are going to look at it in the adjudicatory proceeding agree that they would protect it and so on.
And it also protects i 1,
the information when it is in the licensee's hands and says I
he is not free to just hand it out either, under civil, but not under a clearance system and so on, under a civil penalty.
Well, do you want to hit Alternatives 2 and 3 19 l
rapidly?
20 I
I MR. McCORKLE: Yes, sir.
21 Now, the next Alternative, you just forget (c) and 22 (d) there completely and we will go on to the next chart --
23 I
l (Slide) c' i
~
ll
-- would involve a unilateral decision on the part of 25 h
a i
I O *)'.^ '?.+ t '0 syt
- r t
i 43 I
1 Commission to go ahead a.nd classify plans for LWRs and 2
implement it the same for both types of f acilities.
3 For 3, what is actually the status quo, to continue 4
to protect under 10 CFR Part 2, oroprietary information and 5
continue to support the enactment of the legislation.
This 6
would not include a classification program.
S that's generally the package, and hopefully we can 7
respond to your questions.
3 COMMISSIONER KENNEDY: One could take (a) and (b) of
,2 Alternative 1 and put it together with Alternative 3, couldn't they, applying the words of Alternative 3 to the LWR and ---
MR. McCORKLE:
Well, in effect, until such time as we would implement a classification program or have legislation, 13 yes.
we are forced to go with the status quo, but this would 14 envision a continuation of it, only to be supplemented by j
15 legislation.
16 CHAIRMAN HENDRIE:
Let's see.
Some points.
17 I think that it is the proper course, my own view, j
18 I
that it is the proper course to move forward and implement this 19 the classification on safeguards information where significant
'O
~
quantities of special nuclear material are involved.
I 7,
~~
I point out that this involves, at most, I guess, what, oo i!11 or 12 facilities ---
~~
'I l
MR. McCORKLE:
Twelve facilities at the present time.
l n
CHAIRMAN HENDRIE:
The fuel cycle facilities?
.1 l
,0 i'
MR. McCORKLE:
Five of those facilities presently have
[$$$ddS 1
f
i 44 1
classified plans.
2 CHAIRMAN HENDRIE:
Well, I will talk about that in 3
a minute.
4 In these fuel cycle t'acilities, and tne point I want 5
to make in connection to these things is the following:
6 I think we need this authority for national security 7
classification for these facilities, because in some of these 8
facilities, as I have not.ed, in fact, the bulk of the material 9
Tt these.facilitit. is government material.
It is there on 10 government contract.
11 The DOE side has implemented classification in this 12 area, so you have a facility in which there are classified i
13 contracts, that is, red
-- let me call it red classification; l
l 14 national security classification under DOE requirements in the l
13 facility, but there are other aspects of the facility operation j
i i
16 that also vaght to be protected in which we haven't acted for 17 which they are now unprotected.
l l
Now, let me propose as a theorem to you of practical 18 operation of protection of information, that even.if we had g
the legislation to create what I will call the blue protection l
l system for safeguards information, that it would be madness
~~
l l in the same facility to implement both red and blue systems.
People would just go out of their minds.
23 It seems to me that where you have government 24 contracts which occupy a fair part of the operation of one of these 25 l
1
, c e-
.o n..j s) s..w..> s 2 I
i 45 1
facilities, and there is the national security system in on 2
those contracts that we really ought to go ahead and protect 3
the other safeguards related aspects of those facilities on 4
the same basis, i.e.,
a red system.
This would cover, certainly NFS Erwin -- Well, it 5
covers the Naval Reactor, Lynchburg, Erwin, Wood River where 6
the scrap goes and a number of others.
7 Okay, that's one point.
g A second point is that we would have to decide how g
to treat the Ft. St. Vrain plant.
Here is the only gas cooled reactor plant.
It uses a fuel which, at least up to the present time and inevitably then for some time into the future, 12 is fully enriched uranium.
13 I think over time they may evolve to, and certainly 14 GA is working for gas cooled thermo reactors to a system that 15 would use 20 percent enriched material, and hence, get out of 16 the special nuclear material category.
In the mean time, I
I 17 there is Ft. St. Vrain, I hate very much to go out and slap l
18 I a classification system on a reactor plant and I would --
19 myself, I would look to ways to avoid that.
l l
20 i
The second question is:
What do
,e do about the GA 3,
fuel fabrication plant?
It is a commercial endeavor, but it i
l deals with special nuclear materials in significant quantities.
Under the criteria for implementing what is proposed here, I c '-
it think the GA fuel f ab facilitiy would inevitably get classified 25 under national security, and then at some time if they succeeded
!l 3311%
i 46 1
in backing their fuel line down to 20 percent enriched, why it 2
could be withdrawn and they could be lef t with what I will call, 3
hopefully, blue information protection coverage if we can get 4
the legislation.
5 But I think we ought to nota that if we go forward 6
here, and this is a point th z t, I think, Vic -- I talked to 7
him this morning about this, that 71c would have wanted to 3
have made, that at least the GA fuel fabric ~ation facility would fall under this regime.
Maybe Ft. St. Vrain, if we can't find 9
I the right language to write it out, and this may be the first tg time that an entirely commernial endeavor la brought unde" 3,
national security coverage and Vic reg'ards that as having some significance and gives him Ecmo re&3on to pause and scratch his
\\
head a little about it.
I must say, I don't see much alternative l
l
- and I would tend to go ahead, but it is a point that you ought to j
,, 3 i
i keep in mind.
16 I
I And a third point, I guess, in terms of a practical I
17 matter, I'm simply not going to ask your vote of the Commission l
13 this morning on this matter. Vic is not here and he has high 19 l
l interest in it.
I'm not sure whether -- I have a notion that 20 l
l we may want to discuss the matter again rather than leaving it 21 to some sort of a notational vote.
79
~~
Well, enough said for now.
Let us see if there are i
23 other comments and questions from the rest of you before we 1
il 4 close off this morning's session.
il COMMISSIONER BRADFORD:
Okay.
Again, under Alternative e,,4 9 ( ',W d.'s. A d I
47 1
1(a), if we did approve ~the plan to classify that information, 2
what is the interplay between that and the clearance rule 3
proceeding -- the clearance rule proceeding on MR. McCORKLE:
We would have to make a distinction 5
between the access authorization program, which is merely for 6
access to material, and this, of course, would be for access 7
to information, in other words, classified plans, and the 3
implementation of them, which, of course, would entail guard 9
forces.
10 The numbers of individuals that would require a 11 clearance are drastically less for this than they would be 12 for the access authorization program.
13 Is that what you had in mind, sir?
COMMISSIONER BRADFORD:
I think so.
14 j
l 15 I guess it depends on my understanding more clearly i
I 6
the scope of this versus the clearance rule proceedings.
The clearance rule proceeding is -- would wind up describing rules l
,.i f r individuals with access just to the information or ---
13 MR. McCORKLE:
To material.
19 COMMISSIONER BRADFORD:
Oh, all right.
MR. McCORKLE: See, that's strictly an unclassified
,,ca
! program, but it is a program to establish the trustworthiness
~~
of individuals with access to material.
23 l'
COMMISSIONER BRADFORD:
Okay, this would meet ---
24 CHAIRMAN HENDRIE:
And at all facilities, Peter, both
- s 3
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'l u,".1.t. ? * ))
O
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i 48 1
fuel cycle and reactor are within the domain within the scope 2
of the hearing.
3 COMMISSIONER BRADFORD:
Okay, but for purposes of 4
1(a), the overlap would be only as to fuel cycle.
5 MR. McCORKLE:
Yes.
6 MR. SNYDER:
But there really is not an everlap here 7
in the sense that you are prejudging a decision on the clearance 3
rule if that is what is of concern here.
I mean, a decision 9
here to go ahead is a decision to implement a "Q" and "L"
system 19 on the badges that we all wear, as opposed to the access rule 11 which is actually going to set up a different designator to 12 keep it separate, because there are many people who don' t have 13 to have access to information that presumably wouldn't have to j
i have access to materials.
That is why we have always tried to i
l l
maintain this separation.
There is reciprocity, though, where there is an overlap, if we implemented both.
l
~
MR. McCORELE:
Certainly, because the scope of the j
l,e i
l Investigation and the criteria applied -- correct me if I'm l
13 l
wrong, Ray, -- is essentially the same for both programs.
19 l
l MR. SNYDER:
But again, I don't think a decision here l
20
. prejudices the decision in advance of getting the report from 21 i
the hearing panel, which isn't due until the end of this year.
22 COMMISSIONER BRADFORD: A decision to go this route, 8
23 doesn' t mean autoraatically you are going to have to have ---
24 MR. SNYDER: A clearance rule, being that rulemaking which 25
.b9f ~kI.
vJ.
i
49 1
is still under way.
2 COMMISSIONER KENNEDY: No, the people that are --
3 the people who will be affected by this will require clearance I
4 in any event 5
MR. SNYDER: Yes, sir.
COMMISSIONER KENNEDY:
-- of a different order than 6
those that would be considered under the clearance rule in any 7
event.
g MR. SNYDER:
There are a different kind of people, but g
there may be overlap, but there ---
0 COMMISSSIONER KENNEDY:
That's right.
COMMISSIONER BRADFORD: And this is a much smaller number, 12 MR. SNYDER:
Oh, definitely.
13 COMMISSIONER BRADFORD: Do you have any idea what the 14 number is?
MR. McCORKLE. It would be the entire guard force at 16 every facility, and I would say somewhere in the neighborhood 17
{
of 5 to 10 additional people and that would be a management i
decision as people would have to have access ---
19 COMMISSIONER BRADFORD:
Five to 10 persons, though?
20 i
MR. McCORKLE:
In addition to the guard force.
71 MR. SNYDER: That is because many of them are cleared
~~
i j right now, right, by DOE?
-~
77 l
I MR. McCORKLE:
Well, at the presert time, just to give
~~
i you an idea, DOE clearances alone, throughout our so-called fuel i
i 23 hcycle facilities, 70 percent already have an "L"
clearance.
1 S31200 o
i 50 1
This is of all personnel.
Twenty percent have a "Q" and only 2
10 percent are uncleared.
3 Now, these are DOE clearances, and of that 10 percent 4
who are uncleared, a good percentage of those have DOD clearances.
5 CHAIRMAN HENDRIE: Because most of the weapons grade 6
material work of these facilities is government, why the 7
clearance requirements that come in through that route, and 8
some place I heard an estimate that if this went there might be 9
another couple of hundred people that would be then required 19 to have clearances in order to have acass to the information 11 that would be classified under this proposition.
I don't know 12 whether that is a fair number. Does anybody want to guess whether I
that is a fair order of magnitude number?
l 13 MR. McCORKLE: Would you like to make an estimate, Ray?
3,
l i
j I think it is certainly within the ballpark.
l 1
MR. BRADY:
I would say so.
to j
We would have to go out and really canvass the l
i facility and then update the information that we have.
In some l
18 I
l cases everybody is cleared, like at the Naval Reactor facilities. j 19 I
In other cases ---
20 CHAIRMAN HENDRIE:
There seems to have been a tendency l over the last couple of years to get more people cleared at these 22
! places, so ---
23 lt l
MR. BRADY:
That's right. The Department of Energy 24 i
! has an on-going clearance program for people who have access o
~~
to classified information or unclassified access to special a$ 0 S,
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A!s**=
i i
I 51 1
nuclear material.
2 CHAIRMAN HENDRIE:
Other ---
3 COMMISSIONER BRADFORD:
Well, just the -- which provision of the Executive Order, especially of Section 301 5
are you operating under on 1(a).
The provision quoted in the E
paper is (f) and it says:
U.S.
Government program for l
7 safeguarding 3
MR. McCORKLE:
Yes.
9 COMMISSIONER BRADFORD:
These aren't all really U.S.
10 Government programs.
I think you might be more likely to find 11 yourself under (g).
12 MR. McCORKLE:
I would think that the -- as the U. S.
i 13 Government programs that the ones. that are developed by the l
14 licensee are in response to a government requirement, and therefore, 4 :
would cloke.
j I
l 16 CHAIRMAN HENDRIE; That is precisely the point that Brzezinski makes.
17 I
COMMISSIONER BRADFORD:
It is not necessarily a point i
13 that you wot.ld find universally valid or that a regulated g
activity anC a government program are the same thing.
l l
CEAIRMAN HENDRIE:
I think that's quite true as a 4.,
l general proposition, but in this case, we have an interpretation i
i from the ---
23 j'
COMMISSIONER BRADFORD:
Well, yes, I mean, as a 24 I l1 practical matter, but I don't know why section (g) isn't better 25 H
any way.
All section (g) says it has been required by the agency 9,.,..on
.).u
^
l 52 1^
for the protection to mdke the determination.
2 MR. McCORKLE:
I think this is the point that was 3
addressed in Mr. Brzezinski's letter in response to Senator Glenn, 4
though, as to whether or not the physical protection regime 5
-established, in response to a go6ernment requirement, would or 6
would not f all under the provisions of this and the answer was 7
"yes".
3 COMMISSIONER BRA.DFORD; That is as far as he is 9
concerned.
10 MR. McCORKLE: That's 1s far as he's concerned, right.
11 COMMISSIONER BRADFORD ;
I don' t knon why (g) doesn't 12 do the same thing much more gracefully.
Under (g) then you 13 have got to report to somebody i_ hat you have done it, but other j
i l
than that, it doesn't seem to me that you have to wind up 14 I
15 straining the language.
I 16 CHAIRMAN HENDRIE:
Okay.
O ther?
~7 l
COMMISSIONER AHEARNE:
Could you tell me what the 3
l 18 status of the rulemaking is?
MS. NORDLINGER:
The board has promised that by the 9
end of the year it will have not only the record, but its l
20 l
recommendations as the Commission requested, and that they 1 are meeting privately now and independently working dure.
i l They a e going to work here at the Commission in December and they should have the whole thing by December 31st.
24 l
COMMISSIONER AHEARNE:
Okay.
25 Are these varied -- you had mentioned at these plants O +$
h4 d
.>dif v>
i i
i 53 1
70 percent of the people have DOE clearances, dbout ---
MR. McCORKLE:
Actually, I am speaking all DOE 3
clearances.
I said, 70 percent of the employees ---
4 COMMISSIONER AHEARNE: Right, have ---
5 MR. McCORKLE:
-- do have an "L",
20 percent a "Q" 6
and of che remaining 10 percent they either have a DOD or 7
a few are uncleared.
O COMMISSIONER AHEARNE:
Now, are all these clearances 9
going to be interchangeable in the sense that if we say, all 10 right, we need clearances on these people, will we accept those 11 other clearances?
12 MR. McCORKLE:
If a clearance has been granted, as 13 I understand it, by another government agency,we will accept i
l i
14 I
their clearance.
Is that the way you read it now, Ray?
I l
l 15 MR. BRADY:
That's right.
1 16 l
CHAIRMAN HENDRIE:
It is the same Civil Service j
l i
I 17 Commission thing that we have done on the AEC side for many I
i 13 years, whether we do it -- whether we are required to do it 19 or whether they do it.
COMMISSIONER AHEARNE:
Yes, fine.
I have no objection, j 20 I
was just wondering.
i gy The last thing was, I noticed that OGC and OPE both 3,
~~
l had had some concerns about the paper as such, and I wondered 23 t
h whether either Carl or Bernie wanted to add any points.
~
MR. SNYDER:
Ours was already voiced, but j us.t to make lj 25 on, mu a O.Lt.s > '
- I
54 1
it clear again, we didnt see any point in sending another 2
letter to the NSC.
3 I hope no one asks our office to draft it, because I'm not sure what I'd say.
COMMISSIONER KENNEDY: Oh, you could think of something.
O MR. SNYDER: I probably could.
7 Seriously, I just see no point at all in that.
3 MR. STOIBER:
I,think all of our questions are basically 9
answered and I agree with Bernie that we should not go back to 10 them.
11 COMMISSIONER KENNEDY:
I don't think there is any 12 need waiting for another meeting on this, I will be delighted 13 to vote by notation or now.
l 14 COMMISSIONER AHEARNE:
I want to % ear Vic.
15 CHAIRMAN HENDRIE:
Yes, I think we are going to have to --
l 16 I think, in order to hear the points that Vic would want to make i
l 17 n his own behalf, I have indicated, you know, just one of his I
3 Points in very summary fashion.
Why, I think likely we will want I
to schedule it again.
19 I think it would be -- it wouldn' t hurt, however, to 20 l
i You might go and get yourself some voting sheets in hand, Sam, l
)
l and just hold on to them until we can get it scheduled.
l Now, are there points for the next go-around, aside 2a,
- from a summary of today's presentation and discussion that the l] staff would reasonably make to get us back to thinking about it, 24 25
]
1 a
a o.. ~
w s> JJ. v o '
'l
i i
55 a
- e p
1 are there points that you would like to have exercised by 2
the staff.
3 COMMISSIONER AHEARNE: No.
All I feel, since Vic has taken much interest in the past and had explicitly disassoci-ated himself from the Commission position, I would just want 6
to give him a chance to have his say, but I don't have any 7
other information that the staff has to judge.
3 CHAIRMAN HENDRIE:
Okay, very good.
9 Thank you very much.
10 (Whereupon, the meeting was concluded at 11:25 a.m.)
11 3,
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