ML19275A394
| ML19275A394 | |
| Person / Time | |
|---|---|
| Issue date: | 09/14/1979 |
| From: | Ahearne J, Bradford P, Hendrie J NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7910040338 | |
| Download: ML19275A394 (89) | |
Text
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N U CLE A R REG U L ATO R'f CO MblSSIOil i
l IN THE MATTER OF:
PUBLIC. M U HEARING BOARD REPORT ON CLEARANCE RULE' PROCEEDING
~
~
Place -
Washington, D. C.
Date.
Friday, 14 September 1979 Pages 1 - 32
_ _s Telechene:
(202)3474700 ACE-FEDERAL REPORTERS,INC 094 307 0ffiaalReponers AAA North C::pite' Street Wcshington, D.C..'.0001
'7/6 @ M6 3 3 'c,
/
NATIONWIDE COVERAGE DAILY
1 00004 DISCLAIMER This is an unofficial transcript of a meeting of the United States in the Nuclear Regulatory Commission held on wwv. u % %,.,oyo Commissions 's offices at 1717 H Street, N.
~W., Wa5hington, D.
C.
The meeting was open to public attendance and cbservation.
This transcript has not been reviewed, corrected, er edited, and it =ay contain inaccuracies.
\\
The transcript is intended soleiv. for c.eneral informational
- c. urc. o ses.
As provided by 10 CF2 9.103, it is not part of the formal or informal record o, c,ecision or t.s.e matters ciscussec.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.
Ne pleading or other paper may be filed with the Co==ission in any proessding as the result of or addressed to any statement or argcment cor tained herein, except as the Commission may authorize.
1
- 4
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09
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la R 7'dO 4 AR I
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3"
l PUBLIC MEETING I.
4 HEARING BOARD REPORT l
5 ON CLEARANCE RULE PROCEEDING 6
7 Room 1130 1717 H Street Northwest 8
Washington, D.C.
9 Friday, September 14, 1979 10 l
II The Commission met, pursuant to noti ce, et 3:35 I
12 j
p.m.
i I3 BEFORE:
l Id
'DR. JOSEPH M. HENDRIE, Chairr4n.
l 15 PETER A. BRADFORD, Commissioner.
16 JOHN AHEARNE, Commissioner, I'
ALSO PRESENT:
I I3 "
Mr. Bickwit i
it U
Ms. Nordlinger d
20 j Mr. Snyder
'l 21 22 23 lcl 24 I 1094 309
..,.,., a.
.... m. l 25 1 i.
I 2
ERQCEEDlEqS i
CHAIRMAN HENDRIE:
I involuntarily allowed an extra 2
five minutes for R&R purposes. It's probably a good thing.
3 i
l The Commission now turns to a subject for which 4
i Commissioner Ahearne and I have felt it necessary to go and j
5 get cups of coffee, and I hcpe Commissioner Bradford steeled 6
himself also during the break.
7 i
COMMISSIONER BRADFORD:
If I'd known about the 8
coffee, I wouldn't have come back.
9 f
[ Laughter.]
10 l i
11 CHAIRMAN HENDRIE:
The item at hand is a discussion '
of SECY 79-319, the Hearing Board Report on the Clearance 12 '
l 13 Rule Proceeding.
I We will ask for the General Counsel to try to help
{
14 15 I us put in mind the assorted aspects of this subject, which I 16 must say I find one of the more complex and recalcitrant i
subjects that I have had to deal with here.
And what depresses
- 7 ;l i
me is that I thought that I understood the issues in this matter, in this general area, pretty well two years ago, and now that the proceeding has come to a point of recommendations 2-1 to the Commission and analysis by learned scholars of the 2',
a 22 d art frem far and near, I find that the confusion, at least on d
23 !,
my part, has increased substantially, and I am depressed by 1
24,
what appears to me to be a divergence, rather than a convergence,
.v.t.r, aeoorters, inc. j 25 in understanding.
g 4 7, j f]
i 5t
3 1
With that highly negative assessment, at least of 2
my personal situation in this matter, I will ask the General 3
Counsel to go ahead and help us as best he can.
4 MR. BICKWIT:
Well, we have, without having been i
5 requested to, we have tried to put something together that 6l would facilitate a decision.
7 We have not recommended --
8 CHAIRMAN HENDRIE:
We appreciate your willingness 9:
to plunge bravely into the breach.
I 10 MR. BICKWIT:
We have not recommended on the basic 1
11 issues, for the most part because these are basic value l
12 judgments that are involved, not legal questions.
j I
l 13 COMMISSIONER AHEARNE:
The matter that we are i
14 directly discussing as being -- who is the spokesperson for 15 '
that matter?
16 '
MR. BICKWIT:
For the proposed rule?
17 !
COMMISSIONER AHEARNE:
Or for the proposed decision' l
'. 3 l, of the Commission as a result of the Hearing Board.
You're 4
H not making recommendations for this.
Is OGC the spokesperson 20 '
for that, the three of us on this side?
n 21 MR. BICKWIT:
We have a proposed rule which the l
22 i Commission is the spokesman for in the sense that it's a i
23 !!
proposal.
24 [
Beyond that, you have various participants in a c..N.r.i aeconers. ine. ;
25 '
rulemaking.
o 3
1094
$1I
,a lI i
I:
4 1
COMMISSIONER AHEARNE:
No, I'm just looking at the 2
table and I was just curious.
3 CHAIRMAN HENDRIE:
Oh, I see --
l 4
(Laughter. ]
5 COMMISSIONER AHEARNE:
There's an absence of people here.
I thought Len was just carefully positioning 7
himself away fr.mn being a responsible agent.
8 MR. BICKWIT:
The Staff is a participant in this l
9 proceeding, and there are other participants, and we are 10 simply your advisers, and I'm telling you that there are l
11 limits on the advice that we are going to giveyou.
12 CHAIRMAN HENDRIE:
Really, John, if there is a l
13 proposer, I guess in principle, we, the Commission, at a l
14 principal t'ime --
15 COMMISSIONER AHEARNE:
It's just I'm more f amiliar 16 l with addressing an issue to have someone there who is the i
i 17 carrier of the issue.
I
- 5 J CHAIRMAN HENDRIE:
Someone who is for it, scmeone II I?
who is against it, but at least someone.
But in a sense, the 20 j! Board is.
21.,
MR. BICKWIT:
You have a board and the board has u
22 i made some recommendations.
4 23 y CHAIRMAN HENDRIE:
We asked the Board to act for us,
b i
24 [
and they have come to us with recommendation which has caused
- e+.eral Reporters. Inc.
094
'>i2 25 its share of headaches h
1
5 i
COMMISSIONER AHEARNE:
I know only one by sight, and 2
I don't see her here.
3 I
MR. BICKWIT:
Our paper is simply designed to give I
4 you some setting, to give you some legal observations, to lay
.I 5
I out the questions that we think have to be addressed, without j
i 6
opining on the answers, and I'd like to ask Marjnrie Nordlingeri, 1
i 7
who is primarily responsible for this in our office, to present' 8
I it to you.
I 9
i MS. NORDLINGER:
I think without going back and 10 reviewing all of the history of the matter, I would like to i
11 l
pick up with the last meeting you had on the subj ect.
It 12 was on June the 5th of this year.
i 13 As a result of that meeting, the Commission l
14 requested legal analysis from its staff, alternative clearance 15 l programs that might be possible under other authority, 16 discussion of reliability standard, and there have been
- 7 d
submissions to comply with those requests.
'i COMMISSIONER AHEARNE:
A major issue at that time
'r 2 was, was it not, whether or not we did have to comply and 20 1 the Staff ended up concluding that we did not?
t 21 gj MS. NORDLINGER:
The Staff's legal analysis came 22 0 to the analysis that the better view was that we did not have 23 l(l j
to follow DOE's criteria, and we certainly agree with that view.
24 ',
i
.A
..ai Reoorters, Inc. !j COMMISSIONER AHEARNE:
Which would have clarified 25 [
[
matters to the Board substantially, had that issue been 4
6 1094 313
I 6
1 resolved.
As I recall, that was one of the big points the 2
Board made.
It seemed to be a critical issue which was --
3 MS. NORDLINGER:
We suggested in our analysis l
4 that some uniformity, even though we thought we didn' t have i
5 to follow DOE, that reasonable efforts might be made to 6
have uniformity throughout the government, but I think that 7
one can say that after this hearing, certainly reasonable 8
efforts have been made in that regard, and so that I think 9
the Commission is free to follow or not follow on other 10 bases in the legislative history to 161(r).
11 Staff presented a second paper which on July 31st l
12 discussed alternative programs under some other authority, I
13 more general authority, than the 161(r) (2) authority,. and i
i 14 that paper
15 that an alternative without backgrcund investigation would not 16 meet current objectives, and they did draf t a rule for the U lh Commission that would just apply to fuel cycle f acilities, h
e
- 3,!
if the Commission was interested in that.
i!
1 Another development that's happened since that 20 time is that we have received several letters from participants q
21 objecting to Staff submissions to the Commission on this 22 matter, and our paper suggests that the right of other 23 l participants to comment before the record is closed is 24 !,
advisable.
. L.r. m enorteri. anc. '
25.1 OPE has also sent you this week a memorandum b
n 1094 Hf 3
7 k
I discussing the insider study and its relationship to this I
I I
2 proceeding, which sort of brings you up to date on the setting 3
for the decision.
I 4
We made additionally some observations, which 5
included the f act that really nothing in the record would 6
precludesthe Commission's choosing any one of a number of 7
proposals in front of it, with the exception of the package 8
of derogatory information criteria, and we feel that there i
9 are problems in the record that would preclur.
theCommission's; 10 choosing that option.
I 11 We also discussed the principal considerations, and i
12 we suggested that on both sides there are unquantifiable costs.!
l 13 There are the costs and the infringements on civil liberties
~
Id and the general feeling the nuclear industry will become an 15 armed camp.
All these kinds of perceptions are involved on 16 l one side, and on the other side are also unquantifiable costs, i
'7 I because it's so difficult to assess the likelihood of I
i 3 L sabotage and what in f act would happen or what would be II the outcome of not having a rule.
20!
Furthermore, legal issues -- some issues were i
2; excluded f rom the hearing, but we think that they are still 22 l important issues, and one of them, the main one, is whether 3 F
' J or not there can be a clearance rule under the authority of 24 the act,under 161(r) (2), and we are still very concerned 9 F A.s al Reoorters, Inc. Il, 25y
^b "* th^t 15""*-
1094 315 e
it 0
8 I
The Commission had a paper on that a long time 2
frrm Mr. Stacek, who is General Counsel.
3 COMMISSIONER AHEARNE:
On Commission time, it j
4 wasn' t a long time ago.
5 MS. NORDLINGER:
Even in the life of the proceeding,,
6 it wasn't that long a time ago.
7 CHAIRMAN HENDRIE:
In the scale of Commission time, bI it was hardly yesterday, i
9
[ Laughter.]
10 MS. NORDLINGER:
And having touched on those major II points, we then moved o' to an easy handy-dandy options list, l
12 '
and that included the type of rule in which Tee included as I
13 an option the option of no rule at all, the scope of the rule,,
i I#
and if you' decided on a rule, the criteria that would be 15 l applied if there were background investigations, and we noted 16 with those some of the areas or the bases that we think needed i
.I to be touched, if you wanted to go in thatdirection.
.. l if And I t zink that's in such easy form, perhaps
' h there's no point in my reviewing that.
Il 20
[ Commissioner Bradford left the hearing room at
'l, 3:45 p.m.]
d 22 And when you get to those various criteria, we 23 0 will, of course, be glad to assist you in enlarging on those 24 l!
views.
1094 7A o/
m.m..,,,,. ~.
25 l COMMISSIONER AHEARNE:
Can I ask a cuestion ii t
9 I
before we get to those on a legal issue you raised?
2 MS. NORDLINGER:
Certainly.
3 COMMISSIONER AHEARNE:
Referring to the 161(r) (2) 4 point, could you comment on if one were to focus upon rather I
5 than a liversion issue and focused upon guarding against the l
I' 6
loss of special nuclear material --
7 (Commissioner Bradford returned to the hearing 8
room at 3:47 p.m.]
i 9
-- would or would not an act which would lead to a 10 major accident in a reactor, which would lead to meltdown of II the fuel and dispersal, wouldn't that be a loss of special l
l I2 I nuclear material?
t 13 MS. NORDLINGER-Well, I think that by the plain i
I#
meaning of ' rule it would certainly allow us to look at that i
15 meaning of the rule.
I think it's the first time that I have 16 heard it discussed in that f ashion, and I don' t think any of I7 f the legislative history would support C' M COMMISSIONER AHEARNE :
I'm just reading what I 1
think is the act.
f
,, s "i,
MS. NORDLINGER:
Yes, I understand that.
2I l CHAIRMAN HENDRIE:
That might be regarded, John,
d 22 h to autacrl e us as recuiring clearances to protect against n
23 sabotage th'.t would surely lead to meltdown accidents, but 24 l not the lesser sabotage.
47)1/
t Fs... al R econers. lmc.,
25 MR. BICKWIT:
Let me say that -- the program that l
P i
10 I
you can institute would be one to guard against the loss, in l
2 order. to prevent any use or disposition thereof, which the 3
Commission may determine to be inimical to the common defense 4
and security.
5 To my mind, that does not fit the scenario that I
6 you just described.
7 COMMISSIONER BRADFORD:
Not that it would do the 8
common defense and security any good, you understand.
9
[ Laughter.]
I 10 COMMISSIONER AHEARNE:
Would I read it correctly II that the thrust of your memos went in one direction and the l
I l
I 12 thrust of the Strauss-Kohlberg memo is in the opposite?
i I3 MR. BICKWIT:
No.
t Id "MS. NORDLINER:
I don't think that's true.
I i
15 think that they hedged a little bit.
I 16 f MR. BICKWIT:
Ours just comes down a little more I
U(
firmly on the same side as theirs.
COM'4ISSIONER AHEARNE:
I see.
t
'i E
Would it be corrcet that you do agree that you 20 could institute a rule on fuel. f acilities without significant --
2I d MR. BICKWIT:
That's correct.
22 COMMISSIONER AHEARNE:
The issue really is on 23 any kind of power reactor?
,q 1094
,Sto MR. BICKWIT:
That's right.
- A.rsi Reponers. inc. h],
25 $
MR. SNYDER:
Well, they're also excluded in that li N
P
11 I
consideration, non-power reactors, as being a separate case 2
altogether.
8 3
COMMISSIONER AHEARNE:
Would you believe -- perhaps l I
Steve would be the appropriate individual -- if one were to 5
institute a rule based upon 161 for power reactors -- I realize I
6' that the Strauss memo and your memo is carefully couched --
j I
would you conclude it could be -- I'm not asking whether you I
8 would want to, I'm asking you whether --
I 9I MR. BICKWIT:
It's hard to predict.
Yes, it most l
10 certainly could be.
As to whether the Commission could win 11 it, it's hard to say.
We do have doubts.
COMMISSIONER AHEARNE:
Are your doubts substantial l
12 l
13
)
ones' I
CHAIEWW HENDRIE:
Well, certain of the viess, one I
15 or the prices for public meetings.
16 COMMISSIONER BRADFORD:
I think if one really wants, l
to draw it out on that subject, it would be valuable to have I
a closed meeting.
'i l'
COMMISSIONER AHEARNE:
Marjorie, on page 15, they're a
er talking about industry-run programs.
Did you have any 21 additional concerns about going --- following the Board's o
i 2 j suggestions?
U d
MS. NO RDLINGE R:
Well, the Staf f mentioned in its 24 4'
caper -- and I think that there is scme concern, cerhaos, a
v.Feoeret R eporters, Inc. y h
25 it would have to be addressed about the delegation of this
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kind of authority outside.
I think that that certainly is one 2
area.
3 I think that we are so f ar from being able to choosei l
4 an industry-run program, and there's no definition of what the program would be, so it's difficult to deal with it, and 6
the most, I think, based on the record the Commission could do 7
would be to ask for some draf ting and some study, and then to 8
go out with it for more comments.
9 But I think that that is one significant area that t
10 there might be a problem.
II MR. SNYDER:
It's been cointed out in earlier i
l 12 Staff Teetings and hearings that were held, the potential l
l 13 for misuse on an individualized basis is obviously much greate t
Id than a gove'rnment-run program, as opposed to an industry-run 15 program.
16 I think that's in 76-50 8.
I know it's been I7 f discussed some time in the past.
3!
MS. NORDLINGER:
But there are possibilities of having the kind of program that the Board proposed as a
" q government-run prcgram also.
21 In other words, not having a Part 10 type hearing 22 as having testing and all those kinds of things on a government-L 23 run program, which is another kind of alternative.
24 COMMISSIONER AHEARNE:
But is there any way if you 3.F...rsi Reoorters. inc. j
'S "
went to a -- neither of those would get around fundamentally J
i.
1094 320 a
13 1
the problem.
2 MR. BICKWIT:
No.
i 3
MS. NORDLINGER:
If it were limited to just l
4 psychological testing, then it might.
If there is no check, 5
if there is no background check, then you could run a l
6 program, but the question is whether that program aould be --
7 COMMISSIONER BRADFORD:
Are you saying the 8
psychological testing would somehow be divorced from areas of f
9!
belief?
10 MR. BICKWIT:
Distinctions are fuz::y here.
Il COMMISSIONER AHEABNE:
At one point at issue, as I l
12 recall back in June and perhaps even before that, was if 13 you're restricting it to fuel cycle facilities only, how many 14 people woul'd actually be in the window of those who would 15 have access to this type of material in one way or another,
[
16 so therefore it would be required to be cleared and already i
'7' aren't under DOE clearance?
h I3 p MR. SNYDER:
Well, I think the answer is coming.
O I"
VOICE:
3250.
22 j COMMISSIONER AHEARNE:
3250?
2I MR. EVANS:
Yes.
- l 22 COMMISSIONER AHEARNE:
That would be the number H
23 ll of people who currently do not have to have clearances?
24 i-MR. EVANS:
No, sir, I'm sorry -- let me give you thra6 Reporters, loc.
25 the computation because it gets a little complex.
?
1094 321
14 1
COMMISSIONER AHEARNE:
Maybe you'd.better use the 2
mike.
3
[ Documents being distributed to Commissioners 4
and Chairman Hendrie.]
l 5
CHAIRMAN HENDRIE:
Thank God, a piece of arithmetic 6
we can check.
7
[ Laughter.]
8 MR. EVANS:
Basically what you have are about 5100 l
I t
9 people employed at those fuel cycle facilities, out of which 10 '
approximately 1100 have Q clearances right now, which are 11 equivalent to the U, that would be the upper clearance that i
i 12 we would require under this rule.
i l
i 13 You have about 3500 who presently have L clearances,{
l l
14 which are equivalent to the lower or the R clearances, and 15 !
500 don't have any clearances at all, but when you start 16 computing how many require the higher clearances as opposed 17 }6 to lower, it comes to about 3/4 of the total number of i
Jg employees by an Argonne study that was done that would require n
12 the higher clearances.
4 20 jl And then if you look under point 4, you will see 1
21 how the arithmetic works down to the final bottem line of 3250 jl 22 O total clearances required.
23 h COMMISSIONER AHEARNE:
You're sayinc that the L 24 [,
really is inadequate based on this?
1094 322
- e4 m al Reoorters, Inc.
r 25 ll MR. EVANS:
For positions we have direct access to, t
15 1
yes, sir, unescorted access, that is.
COMMISSIONER AHEARNE:
So you're saying that's 7
concluding that currently the DOE system is inadequate?
l 3
MR. EVANS:
Only to some extent, in that certainly 4
a number of the people that have that direct access have Q 5
I l
clearcnces, not as many as we believe would be requirc6 over-6 l
all.
7 MR. SNYDER:
But it is true that is unescorted access?
9 10 MR. EVANS:
That is unescorted access or two people 11 in conspiracy being able to remove the material.
Those are i
\\
12 the only two cases covered.
j I
COMMISSIONER AHEARNE:
Could I also read this to 13 14 say that currencly there are 550 people who don't have any 15 clearance?
i 16 MR. EVANS:
Yes, sir, if you include transporta-
- 17f, tion, 550.
il 3h COMMISSIONER AHEARNE:
Now, of that 500 who don' t d
1; have any clearance at all, how many of those do you believe would require the upper level clearance?
2 0,.
21 MR. EVANS:
I was afraid you were gcing to ask i
22 j
that question.
We very carefully worked this up so we 0
wouldn't have to answer.
23 24 d
{ Laughter.]
.,, z
) b -
t k.ral Reporters, Inc.
I don't know the answer to that.
25 c
!i n
16 We are to finish that question.
We have already j
initiated a survey of tne industry to get the answer to that 7
3 question, but we don' t have it yet.
l l
COMMISSIONER AHEARNE-3ernie, would you care to 4
I comment on what value you believe it would be to us for reaching 5
our conclusion to get the briefings that you mentioned, the 6
7 DOE study?
f MR. SNYDER:
As I understand it from co*versations 8
with the Staff involving the study, one of the basic questions '
9 to be answered in that study was specifically laid out by the 10 11 Commission's request for that study, was how effective are l
12 clearances?
Do they really do you any ;*ood?
And what's j
13 the experience been?
Both NRC experience and elsewhere l
14 throughout -the government.
13 My understanding is the two studies thef were 16 l going to depend on that were going to be generated under the Office of Standards Development have been delayed and 17 1
are just now getting underway.
3 gl l
1:
The DOE study is apparently in some sort of a draft 4
form from the contractor that did it for DOE, and I think -- I 2; g o
have not seen the DOE study, but I would suscect that there 2;
?
22 are some important things to be learned here, because af ter I
23 all you are deciding whether you want to go with the clearance.
n 24 !
But no one, to my knowledge, has ever systematically 1
1 k.ral Aeoorters, Inc. lj 25 [
looked at that question, do they really buy you anything,
I!
oa s
1094,m F
17 1
and that just seemed very basic to me, to get a feel for that, 2
at least.
3 I don't think you are going to get a definitive l
l 1
4 answer, yes, they do, or no, they don' t buy you anything.
Butl 5
at least it's another piece of information I think you'd 4
6 probably want to consider.
7 COMMISSIONER AHEARNE:
Len, in the process, if 8
we were to get those briefings, is that to so-a extent material, l
9 that ought to be in formal form, a paper, so it could go to f
10 the other parties in this rulemaking?
i 11 MR. BICKWIT:
I would prefer it. Whether it's legally t
l 12 required or not is not cleer.
l There may be anclassification problem,1 13 MR. SNYDER:
i l
14 I'm not sufe.
I 15 MR. BICKWIT:
If you have a classification problem, i 16 it won't be legally required.
17 CHAIRMAM HENDRIE:
When we met before, we were l
23h inclined toward fuel facility programs, and a proposal for
!i 1
that was prepared back in July, I guess.
Are there comments 20 q on that from your office?
21 MR. SNYDER:
We reviewed it.
We did not comment n
u i
22 l
to the Commission.
We thought it was fine as it stands.
I:
)
23 h The criteria, as Marge points out, is still a problem on 24 this, but the rule as it stands in our opinion, at least, a A..s neoonen, inc. ;
25 !
appeared fine.
r r
1094 325
18 I
MS. NORDLINGER:
The rule as it stands incorporates 2
those criteria, so it has to be dealt with.
3 COMMISSIONER AHEARNE:
Do you have a mike on?
I I
4 don't know if anybody is able to hear you.
5 MS. NORDLINGER:
Yes.
I'm sorry.
I just said I
i 6
that the rule, as it's drawn for the fuel facilities, does 7
include the criteria that we feel create a problem wherever 8
they are used, because the record of the hearing contains l
i I
9 considerable information about the criteria that is negative 10 in its continued use or extended use.
Il CHAIRMAN HENDRIE:
On the other hand, it's also 12 the basis for a rather extensive system of national security i
13 clearances.
I may even have one myself.
14
- (Laughter.]
15 MR. SNYDER:
There's another point in here in 16 that you have a proposed rule on the street right now for P'
the question of access to information, Parts 25 and 95, which c
'3 !
you apcroved, classifying information in the fuel cycle area.
ll E
That was back some time ago, but I believe the clearance 20 crocess for that involves the use of that same set of i
21 criteria, so, you know, you've got a little bit of --
22 CHAIRMAN HENDRIE:
It's all cart of the same system.
J 23 0 MS. NORDLINGER:
Not comcletely, because the 24 criteria were developed for access to information, and that's e a,.i n.oo,ters. irw. J 25 j one of the issues, is whether or not there is a need f or the e
[
1094 326
19 same criteria for access to materials.
I CEAIRMAN HENDRIE:
In the discussion of those 2
3 proposed parts?
l MS. NORDLINGER:
That's right.
There's also 4
i somediscussionthatwouldtendtoapplytotheiruse,perhaps,l 5
t in other regards, but certainly in regard to access to material!
6 l
l 7
they were questioned.
COMMISSIONER AHEARNE:
I guess I didn't have any 8
9 real problem with the fuel cycle.
l 10 '
CHAIRMAN HENDRIE:
I never have had.
We would be 11 willing to go ahead with that, in order to bring the situation i I
i that those rather sensitive facilities have into reasonable 12 l
13 j shape.
It's consistent with the classification of security 14 plans decisions of the Commission.
The quastion about reactors i
15 '
remains in my mind very much open.
Peter, do you have -- in searching through this 16 thing to see what I thought I understood well enough to decide,-
17 the fuel cycle clearances were about the only place that I 13 15 'l was able to think that was the case.
'h I wonder if the rest of you are at that point or 2 2
Il l
advanced.
27 COMMISSIONER 3RADFORD:
You were talking about 22 23 h implementing or sending back for further analysis in light
!i 24,
of the revised position on the cuestion of following the DOE M Fweral Reporters, Inc. '
25 policy?
k00k DL 3
20 I
CHAIRMAN HENORIE:
No, I've been prepared to 2
implement the fuel cycle f acility on the basis that if those 3
are -- that those are -- that in that situation it might be l
4 a national security test, and the clearances are those l
5 authorized under the provisions of the act for national security 6
purposes, and I think in that area that there are indeed I
7 some substantial reasons why trying to react to a different 8
set of criteria than those that have been used_and are being I
9 used for what must be, I don't know, several hundred thousand 10 people already under that system, offers some real questions.
Now, I think when one contemplates whether a 5
12 clearance program for reactor plant people, the considerations 13 for health and safety considerations, then, indeed, it's a
~
" b rather dif5erent situation.
l 15 COMMISSIONER BRADFORD:
Well, before doing anything I
16 there, you have to conclude that we have authority to do it.
7 CHAIRMAN HENDRIE:
Yes, there is that, and then l
.. y furthermore this proceeding didn't seem to develop any over-
!i whelming mandate that it was the best thing to do, but in the h
,- ]
f airly limited area of the fuel cycle f acilities handling 21 weapons, quantities of weapons grade material, there I would 22l be prepared to implement on the basis of present action of 23 security.
4 U
MS. NORDLINGER:
Mr. Chairman, might I interrupt e Fw.ral Reoorters, Inc. h 25 h p
to call to your attention that the rule as cuoted here includes 6
1094 323
21 1
transportation, and there are some practical problems of the 2
ability in doing this as pointed out by the Board, that we 3
think perhaps you would want to look into further before i
4 you approve it.
j 5
CIIAIRMAN HENDRIE :
Do you have them well enough in i
i 6
mind, Marjorie, so you could make a three-minute outline of i
i i
7 the problem?
I 8
MS. NORDLINGER:
I really don't think I could 1
9 guarantee you that I would give you all of them.
I think 10 some of the concerns, however, it was a long time ago that I 1
11 read the record of this proceeding, but some of the concerns I
i 12 that were raised was whether or not there would be difficulty l
i' 13 even getting things transported by air, because of commercial i
~
14 airlines would not be willing to take on this kind of process 4
15 ;
because it would involve clearing pilots and so on.
So it 16 might force -- but I think at this point it might be much more 17 wiser to call on the Staff, who is very aware, I think, of I
- 5 '
this, and they could --
li 1
MR. BICKNIT :
You're looking at me.
There is no
'I 20 j problem with calling on the Staf f, but I would suggest not 1
21 because it is legally required, but because it may be, and I 22 believe it would be preferable that before you arrive at any
.I 23 decision, that the transcript of this be made available to j
24 :
other participants and some of the issues raised here be A..at Reporters. Inc.
25 ]
the subject of comment on the part of the partic[(pf.4s.[y[19 L
e 1
22 1
CHAIRMAN HENDRIE:
If they choose.
I 2
COMMISSIONER AHEARNE:
Let me see if I understand i
3 you.
4 Are you saying that were we to decide we wanted i
5 to implement this rule with respect to fuel cycle f acilities, i
6 that you don't believe we should go ahead and do that in the l
7 absence of first getting further comments?
l l
8 MR. BICKWIT:
That is my view, that it would be 9
preferable to have the other participants comment on some of 10 the f actors that are leading you to that conclusion and the I
ll i decisions you arrived at today.
i I
i 12 COMMISSIONER AHEARNE:
You say other participants.
13 Who is that?
i 14 MR. BICKWIT:
Staff has given you some submissions j
I 15 which have not been the subject of comment by --
16 COMMISSIONER AHEARNE:
You mean the proposed rule?
17 MR. BICKWIT:
That's right.
Staff today has given
'5 a you some pieces of information which have not been the I
subject of comment.
I'm not saying that it is clear that a
20 j legally you must get comment on those submissions.
'l 21 '
I do think it would be preferable if you made any o
ll 22 decisions you make today tentative until you have that comment.
i 23 j COMMISSIONER AHEARNE:
Would the comment be requested a
24 i; on the issues that are addressed, or would it essentially be
,Jeoerei aeooners, inc.
25,! ask for any comments?
l' 9
1 0 9 4,u 0 a
23 1
MR. BICKWIT:
I think it would be preferable to 2
singla out what you want commented on.
l l
3 COMMISSIONER AHEARNE:
It would seem only appropriate' 4
because we aren't really asking the Staff; any comments we 5
want to make, we 've asked specific points.
6 MR. BICKWIT:
That's right.
7 CHAIRMAN HENDRIE:
Yes, can somebody outline the I
e 1
8 transportation problem?
)
t 9.
MR. MONTGOMERY:
What we have with transportation l
10 at the present time is the primary mode of transportation 11 being on ground, and that is not a problem, and did not come J
12 up as a problem in terms of the clearances.
I 13 The two arear that did come up is implementation 14 problems of the airline pilots and those are extremely small i
15 numbers of instances.
I 16 '
The problem that we can't c"iswer at present 17,
concerning the airline pilots is the f act that if the require-lI
'.3j ment is made on them, whether or not that will make them decide n,
if that it's economically not feasible for uhem to stay in the 1
20..
business.
i 21,
The other issue was one of pilots, international n
22 flights, or for that matter, clearance of transportation 1
23 [
activities that involved international implications.
24 COMMISSIONER AHEARNE:
Bernie, tell me where we t Fe..ral Reporters, I nc.
25 L stand on pat down and what relation that has.
1094
?n'i H
o
24 I
MR. SNYDER:
I guess it's early November the 1st, 2
it's pretty early, the question comes up again, that was the --
3 you've deferred the pat down and the compartmentalization, and that package pending resolution there, and that the i
4 l
5 date on which something has to be done, I guess, is November i
6 1st, which is close approaching.
7 Those are the only alternatives that have been I.
8 proposed, to my knowledge, by the Staff.
If the clearance 9
program does not go into effect for reactors.
l l
i t
10 l Now it may be there are other alternatives that II might be thought of, so there may be some other suggestions.
12 They are not that much involved before they will have l
13 some first line responsibility in that area, so it isn't t
14 necessary to say those are the only ideas.
There are 15 different people in some cases.
I don't have any other ideas.
16 CHAIRMAN HENDRIE: Well, I prefer not to piddle
'7, with the November 1st date at this point.
It won't surprise 1
me if we reconsider it at some later time, but I see no need la H
to do it now.
20 MR. SNYDER:
Len, is there a possibility that g
21 during the implementation of this rule, make the assumption 22 l that the Commission were to adopt it, that an effective 23 date as proposed at 16ast 75 days after publication -- I'm i
24 not sure, stepwise, of implementation -- that would give
- e k.ral Reporters, Inc, l 25 people an opportunity or parties who have been involved in p
?
1094 332
25 1
this before, the opportunity to comment?
2 MR. BICKWIT:
You mean after you adopt it?
l 3
MR. SNYDER:
Well, we 've done that, open it up j
i 4
for comment.
Changes can be made.
i 5
MR. BICKWIT:
I would prefer not to.
l i
I 6
COMMISSIONER AHEARNE:
It would be hard for me to j
7 see how we could make the argument that we suddenly realized 8
immediately --
i 9
MR. BICKWIT:
It's not consistent with the pace of i
1 10 '
the rest of it, I understand.
11 COMMISSIONER AHEARNE:
I guess what I would opt f
12 f or, then, is to go with the fuel cycle rule, probably take i
13 the transportation piece out, because we're not really sure i
14 j what the rimifications are, and go through the process that i
15 '
Len said, whatever is appropriate for sending this 16 :
f ascinating, scintillating transcript to the other parties 17 and giving them a reasonable length of time, whatever is 13.
appropriate, to comment on it.
c MR. BICKWIT:
Well, I would urge that you get your U
20 d comment before you go with the fuel cycle.
4 21 CHAIRMAN HENDRIE:
I thought that's what you said.
22 j COMMISSIONER AHEARNE:
What I'm saying, in order d
23 'i to receive the comments, what I'm saying is I'm leaning n
24 ti towards going just for the fuel cycle piece and leaving out
- ..t.r.i neoorteri. inc. J 25 '
transportation, but now following Len's point, saying, "All ll 1094 333 c
26 1
right, here is this transcript, here is the way I am leaning, 2
will you please give me the comments on what these issues i
3 are."
l 4
COMMISSIONER BRADFORD:
How are you going to get 5
comments on the transportation piece?
i 6
COMMISSIONER AHEARNE:
Well, the transportation l
7 piece, I think, is just going to have to be looked at 8
separately, it appears.
I don' t think we've gotten enough 9
information on this, on the question of pilots.
I 10 MR. SNYDER:
Maybe we ought to ask for that at l
II the same time.
l 1
12 COMMISSIONER AHEARNE:
Well, I would guess we'd l
i 13 probably have to have the Staff go to the airlines and Id explore thdt issue.
15 CHAIRMAN HENDRIE:
Is it necessary that pilots be 16 cleared? To ship the stuf f on un ocean liner, must the
l captain be cleared?
Or could you have a cleared group of
'2 guarcs?
If it goes through the state of Ohio, should the li U
governor have a clearance?
20 j COMMISSIONER AHEARNE:
You just chose that as i
h 2I an illustrative example.
n 1
22 CHAIRMAN HENDRIE:
Yes.
And also because -- never l
,3 'i!!
mind.
ll there to 24 '!
Ohio always comes to mind because I went M Le e' Reporters, Inc. y r
25 school for a long time and have high aff ection for it.
1094
,13'1
27 1
MR. BICKWIT:
Would it be helpful if we tried to 2
review the transcript and come up with the series of matters 3
on which we believe from that review the Commission wants 4
comment, and submit it to you, and see whether that repre-5, sents --
bu2 6
CHAIRMAN HEUDRIE:
Yes, please do.
7 I would like to indicate for the record that I 8
agree with John.
My inclination would be to take the t
9 transportation piece, just because it appears to have some l
10 things that I want to understand better, out of the proposed 11 fuel cycle clearance rule, and nave people be aware that that's:
12 what I would be proposing to vote to go with, so their camnents 13 could be particularly directed at that.
i 14 COMMISSIONER BRADFORD:
Now that I understand, l
15 j by "go with the clearance rule," you mean essentially go with I
i 16 l what the General Counsel has recommended for comment, and not I
17; simply put it in place, which is what was troubling me.
So f
- 3 I certainly have no dif ficulty with that step.
I would 5
I include the transportation piece, but I'm assuming that your 22 ;!
position prevails to, by all means, get on with it.
d 21 CHAIRMAN HENDRIE:
Well, I'm sure among the things n
22 the parties, if they want, would be invited to comment about 23 ?
would be that transportation piece because it m y have a 24 problem in some areas.
3.Fw..rai Reporters, Inc. it D
25 COMMISSIONER AHEARNE: My concern is I think we N
n e t
1()94,m o
I 28 1
have got a well-enough defined piece for the fuel cycle 2
facilities, and another piece, the transportation, is a lot 3
fuzzier, and going out for comments and getting into action 4
on that, I would not want the fuzzy part, because of its l
5 difficulty to significantly delay working on the piece that i
6 I think is fairly well defined.
7 CHAIIUWI HENDRIE:
Very good.
I I
8 MR. SNYDER:
Could I make one comment on that?
9 Within the U.S. industry that we are involved with here, 10 l there is a fair amount of plant-to-plant transportation.
It 11 makes it a little bic inconsistent.
We're worrying about l
12 airline pilots and overseas shipments, that's another cuestion;l i
13 but it seems to me that truck transport, which is to a large 14 measure mos't of it, there is a fairly sizeable flow -- I i
I I
believe, I could be corrected on that by the fellows that 15 16 are closer to it -- but there is a number of plants that 17,
are closely coupled together and trucks moving it.
' 3.i MR. EVANS:
That's true.
In fact, in clarifying
!i I
this a little bit, the only area that I think we have against 20 information problems in terms of transportation is the air q
2i transport area.
In terms of the ground transportation, we 22 have actually talked with the licensees and have had no 23 objection at all in that area, and I don't believe the n
24 record shows any objection in the ground transportation area.
- t Fm..< ai Aeoorters. Inc. O 25 COMMISSIONER AHEARNE:
Would it be feasible to L
1094 m,,7 4
29 1
publish if we ended up finally having this rule, would it be 2
feasible to publish the rule and exclude a particular type of --
3
' MR. EVANS:
As a matter of fact, the way the rule 4
is written, it is very easy to do that.
It is just a matter 5
of excluding a very small part of the line, because it 6
actually talks about airline pilots.
7 COMMISSIONER AHEARNE:
Would the logic be there l
l 8
to back that up?
9 MR. EVANS:
At this point there are no domestic l
4 10 air transports of greater than formula quantities.
The only 1
II place where we have had a potential problem would be from 12 international import shipments and in that area we have l
13 through the International Programs Of fice contacted them I
Id through State, contacted foreign governments to see if we l
15 could get foreign assurances, and in almost all cases we 16 could get foreign security clearances.
17 We only have one or two countries remaining to c[
get the answers from in that area.
So in light of that, I d
don't think we really even have a problem there.
k 20 j!
COMMISSIONER AFEARNE:
Leave the transportation in.
- l 2I Bernie, could you make arrangements for us to I
22 [I receive those briefings?
22 l,,
MR. SNYDER:
Yes, sir.
e 2# 2 CHAIRMAN HENDRIE:
Okay.
If I can summarize where t Neral Reporters, Inc. j 25 the Commission will need some briefings which OPE is we are, k
1094 3,37 s
30 1
to arrangersince they a e recommending them, why, it seems 2
fair the burden return to them.
3 At least the three of us who are at the table 4
seem willing to consider going forward with a clearance rule 5
for fuel cycle facilities, and with at least most of the l'
6 elements in the transportation, in the transportation area, 7
after a period which will allow parties to comment, having i
I 8
seen the transcript of this meeting and the papers associated j
i 9
with it.
{
10 We will, I take it, then, need, in order to 11 implement, should we believe, after we have had comment, I
12 that it's appropriate to do so, we would then need another i
13 meeting, at which the Commission can work the thing out.
14 hhis set of comments, does that constitute putting 15 the proposed rule out for comment?
16 MR. BICKWIT:
Yeah, I think that would be one of 17 the papers that's been submitted on which you would ask for U
comment.
IE '
COMMISSIONER AHEARNE:
Now going back to an earlier 20 q cuestion I asked, who is the proponent?
In other words,
'l 21 who receives all these comments and pulls that package together?
22 MR. BICKWIT:
The Commission staff will receive Ii 23 h them and pull it together.
1 2# j COMMISSIONER AHEARNE:
In other words, you three?
2 Fecer.1 Reporters, tric. i 25 MR. BICKWIT:
Yes.
l;a' 1094 33
31 I
CHAIRMAN HENDRIE:
Other additions to this matter?
2 MR. BICKWIT:
I just have one question.
How long 3
will it take to implement this pat down, if it does, how much 4
lead time is needed, if it does go into effect?
5 MR. SNYDER:
I'm not sure of the answer to that.
i 6
Can anybody else comment on that?
7 MR. MICHAELS:
Ted Michaels, Standards.
8 The pat down rule, you could implement that within l
i I
9 short notice.
I don't know whether it will go in that 10 direction or not.
i Il CHAIRMAN HENDRIE:
Well, I would think between now i
i 12 and November 1st, if the Commission has to f ace the reactor i
13 side question and decide whether it's going to --
I4 ER. MICHAELS:
We are preparing a paper right now.
15 It's a cognizant level of review which is proposing a further i
16 !
delay for the pat down search, additional compartmentalization
~7 l and two-man rule, and we've looked at several alternatives.
'3 '
One is the clearance rule as one alternative for i'
l reactors.
d 20 !;
The other is the secondary proposal by the Staff,
21,.
which is an AC.
I 22 hI The Hearing Board proposal is a third, and possiblv v
23 ji industry-run programs, ANSI type programs.
And what we are i
doing in the paper is just looking at the length, the span 24 1.Fu.at Reporters. Inc.
25 l required for each one of these to be implemented, should the I
e, 1094 339 l
J
32 l
Commission select any one of these alternatives.
We are 2
really recommending -- well, we are recommending a two-year 3
extension in the pat down compartmentalization.
At this i
4 time this is what is being looked at right now, because we feelj i
5 t hat the hearing board proposal and the NAC would take 6
additional rulemaking to implement for reactors.
7 CHAIRMAN HENDRIE:
Okay.
Thank you.
8 Other comments?
9 Well, thank you very much, I think.
10
[ Laughter.]
l l
(Whereupon, at 4:30 o' clock p.m.,
the hearing l
II 12 was adjourned. ]
13 l
l 14 l
15 16 17 1 53 ;}
l; 1;
2C :l
'e 21 li 22 l t
23 !!
ll 1
2 >i t
Reporters, Inc. ll t Fec..at 25 i!
u
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1094 kJ
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~
5 UNITED ST TES 5
g "49 kf NUCLEAR REGULATORY COMMISSIOB y
WASHINGTON, D. C. 20555 e
k*,v /
August 3,.1979 MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford Commissioner Ahearne FROM:
h Leonard Bickwit, Jr., General Counsel
~
SUBJECT:
COMMISSION PARTICIPATION IN LICENSE ISSUANCE At the Commission's last meeting on " Deferral of Licenses,"
Commissioner Ahearne requested OGC to outline a pos.41ble temporary modification to the Commission's current procedures to permit-increased Commission participation in power reactor license issuance decisions to ensure that IMI-related safety issues have been adequately considered before licenses are actually issued.
We have considered a variety of options in which the Commission would act either in adjudicatory or in non-adjudicatory capa-cities.
The criteria we used to analyze these options included:
(1) the effectiveness of Commission participation; (2) the degree of direct delay or disruption such participation would have on the particular case involved; (3) the potential for future dis-ruption in the case (in later appellate review for annple) ;
(4)-
the workload burden participation would impose on the Commission; and, of course, (5) compliance with the legal requirements of the Atomic Energy Act and the Administrative Procedure Act.
If the Commission were to decide that new licenses should be issued only with the approval of the Commission itself, we would reccnn-mend the following course of action for use in any proceedings in which an adjudicatory hearing is required, i.e., contested operat-ing license proceedings and construction permit and limited work authoriration proceedings, whether contested or uncontested.
In the case of an uncontested operating license proceeding, the staff could communicate with the Commission informally prior to issuing any license in lieu of employing the more complex pro-cedure discussed below.
4 4 1 0 9 4 "3 I CONTACT:
Stephen S. Ostrach, GC X-43224
h.:
g i
2
~
Angust 3, 1979 The C6mmission Prooosed Procedure 1.
Policy Statement h
The first step would be issuance of a Commission policy state-ment..=.7 The statement would set forth the Commission's belief that Wile the accident is still under investigation, the: Com-mission itself should increase its involvement in license issu-ance since it has the ultimate authority within the. agency and
~
since it possesses the fullest information on all aspects of the accident.
The statement would then list a number of subject areas (operator training and emergency planning are possible
~,
examples) which the Commission had determined were IMI-related.
Licensing boards would be directed to consider whether to reopen the record 'in proceedings before them to take additional evidence on those subject areas..Z_/
'Ihe boards would decide whether to reopen the records on the basis of their determination whether, without reopening, the record was a fully adequate and current basis on sich a decision in question could be made.
This is a much more liberal standard than the Appeal Board would employ in determining whether to order a record reopened and it is essen-tially equivalent to the test each board should make on its own motion before closing the record on any issue before it.
2.
Initial and Recommended Decision The policy statement would provide that when a board is prepared to issue its decision in a case before it, it would issue a partial initial decision on all aspects of the proceeding except those which the Commission had determined to be "EI-relate:d.
The board would issue a recommended decision on those latter matters That partial initial decision would be reviewed by an Appetal Board in the normal fashion with subsequent discretionary review by :he Cocaission.
3.'
Commission Participation The policy statement would further provide that the recommended decision would go directly to the Commission for its considera-tion, and that the parties would be given an appropriate time to 1/
Some might consider it more appropriate to communicate with the boards by a series of orders in lieu of a policy state-ment.
For ease of discussion, this memorandum will assume that the policy statement approach is preferred.
2,/
As the Commission was told on July 12 by NRR and the Chair-man of the Atomic Safety and Licensing Board Panel, a number of boards have already received motions to reopen based on the TMI accident.
4 347 P00RORGIN/1
~
[h AE:-
w The Ccamission 3
August 3, 1979 brief exceptions to that decision.
The Cocmissicrn would then have four options : (1) it could accept the recoended decision and make it final; (2) it could reverse the decision and deny issuance of the license; (3) it could remand the proceeding to
\\
the licensing board for the taking of further evidence; or (4) it could itself hear further evidence and then decide the matter.
4.
Discussion
/
Under this procedure the Commission would be acting in a fully adjudicatory capacity and thus would be subject to the ex narte e
and separation of functions rules.
Furthermore, if the Com-mission did choose to take evidence it would have to employ full adjudicatory procedures including a right to cross-examination (when appropriate) and application of the normal rules of evidence.
Since the licensing board would issue only a pad al initial
. decision, the immediate effectiveness rule would mot apply at that stage.
'Ihe license would be issued only if and when the Commission issued the final decision on the MI-related issues.
Judicial review would be available after a Commhion decision granting the license or denying it outright, altisough in the former case a reviewing court most likely would defer re-view until the Appeal Board decided any appeals taken on non 'DC issues.
We believe there is one potential problem with tW procedure.
The Cornission's decision on factual matters wou2.6 have to be based on the record compiled in the particular proceeding in-volved.
This may create some difficulties since the Commission's information on TMI-related issues will be largely derived from such sources as the Lessons Learned task force, de Special Inquiry, and other investigations none of which d1l necessarily be "on the record" in each licensing action.
Th% problem can be alleviated in two ways.
First, in accordance wid the policy statement, the boards can be expected to reopen some of the records to take evidence on 'IMI-related matters.
It ~can be expected that the staff will develop and continously update its evidence relating to TMI issues which it will tailor to each proceeding and enter into the record.
Furthermore, the Com-mission itself can take any evidence it believes necessary to conplete the record.
Second, many of the decisions the Com-mission is likely to reach as a result of its consideration of the IMI accident can potientially be categorized as " policy" decisions rather than decisions on factual issues in controversy.
The Co= mission is, of course, free to base its policy decisions on extra-record information.
ib4 I
9
N@
v =-
August 3, 1979
'~
' The Con: mis'sion 4
Conclusion We believe that the procedure outlined above prcsvides a process
-._ ~
by which the Commission could, if it chose to, imvolve itself g'
directly in consideration of D1I-related matters as they affect the issuance of new reactor licenses.
The procedure would limit the distortion of current 1.icensing procedures to a minir== and would avoid the legal and practical problems that the Comrnission i
would encounter if it attempted to employ non-adjudicatory pro-cedures.
The Executive Iagal Director's Office contributed substantially to this paper and concurs in the c2bove discussion.
/
cc:
EDO ELD OPE (2)
OCA NSECY (2) r 1094 3H 300R OR 801 O
fn nic o
'o UNITED STATES
+
~',
E }^ > v3 i
NUCLEAR REGULATORY COMMISSION 3 *-
yC WASHINGTON. D. C. 20555 ku,/
JUL 161973 MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford Commissioner Ahearne FROM:
Howard K. Shapar Executive Legal Director
- "I'*
THRU:
Lee V. Gossick Executive Director for Operations
SUBJECT:
CLEARANCE RULE PROCEEDIfiG The Co:rmission met on June 5,1979, to discuss the report of the Hearing Board in the rulemaking proceeding concerning clearances for persons with access to or control over special nuclear material. The Hearing Board in its report raised several questions concerning the need for a' clearance rule, the NRC's legal authority, and the alternatives considered by th Staff.
In a June 12, 1979, memorandum to the General Counsel and the Executive Director for Operations, the Secretary of the Comission requested that the Executive Legal Director provide a legal analysis whether NRC, in establishing a clearance program under section 161 i. of the Atomic Energy Act, is required to adopt the basic standards and procedures established by the Secretary of Energy.
The attached comments rescond to :ne Secretary's memorandum and address these legal questions.
These comments have been coordinated with the Offices of Nuclear Material Safety and Safeguards, Nuclear Reactor Regulation, and Standards Development and, insofar as colicy matters are concerned, reflect the views of those offices.
The other matters requested in the memorandum, i.e., an opinion on alternative clearance programs and a draft fuel cycle clearance rule, will be for,varded separately, a
Howard K. Shapar [/
Executive Legal Director
Enclosure:
Staff Commente on Hearing Board's Decision cc:
~
SD s
Contact:
J. P. Murray Ext. 27496
STAFF COMMENTS ON THE ACCESS HEARING BOARD'S DiCISION The Hearing Board in the access nalemaking proceeding issued its Report in April 1979. The Report raised questions concerning the need for the rule, the NRC's legal authority in relation to the Secretary of Energy, and the alternatives considered by the NRC Staff.
These comments address the above areas of concern and include, in particular, a legal analysis of the question whether the Comission is required to adopt the basic standards and proce-dures established by the Department of Energy in establishing a clearamce program under section 161i.
of the Atomic Energy Act ("Act").
SUMMARY
OF CONCLUSIONS As set forth in more detail below, the Staff believes that the Hearing : Board in its Report erred in indicating that the Staff had some burden of pr:oving the need for an access clearance rule, and in failing to recogni::e thart the Cornission had already postulated an " insider" safeguards threat that (could serve as a basis for the rule.
The Staff was correct in its belief theat in ordering that a hearing be held on the proposed rule, the Commission clid not intend that the Staff " reinvent the wheel" by exanining g novo the natture of the safeguards threat ar.d the need for some improved safeguards.
P00R018NAL 1094 V 6
, Further, the Staff believes that, while a substantial legal question exists, the better legal view on balance is that in establishing an access clearance program under section 1611. of the Atomic Energy Act, the NRC is not legally compelled to follow basic standards or procedures promulgated by DOE.1/
Accordingly, the hearing record contains substantial infomation regarding alternatives to an access clearance program, and assuming that an access clearance program is implemented, the relevance of the present criteria for the information access program to this materials access program.
- However, putting the legal question regarding NRC's independent authority aside, there are substantial policy reasons why NRC's and DOE's clearance programs should be reasonably similar.
~~1/
inis legal conclusion is based upon a careful reexamination of the Reorganization Act' and its legislative history.
The legal position on this matter has evolved since SECY-76-503 (October 7,1976) stated tha t:
"The ERDA Administrator has the authority to establish the basic standards and procedures respecting the national secur-ity relative to personnel security programs under section 1511 of the Atomic Energy Act of 1954, as amended (see Senate Report 93-980 Enercy Reorcanization Act of 1974), p. 84."
See also Staff direct testimony at 19.
However, later during the hearing when the Board pursued this legal issue, the Staff continued with that position as the better legal view but stated that the position was not free from doubt (Tr. 530-533):
"we think there is a substantial legal question as to whether we do have the authority to establish different criteria."
(T r. 136)
"that is not to say the legislative history is the law."
(Tr. 531)
"Therefore, it is our legal position that there would be a substantial question if we went out on our own."
(Tr. 531)
See also, Staff's concluding statement at 22.
1094
- ,~ y P00R OR8M
~
Need for a Rule This nJlemaking proceeding has had an out-of-the-ordinary history.
The Comission formally raised the matter of possible clearances for persons with access to or control over special nuclear material under section 1611.
of the Act in a notice of proposed rulemaking which invited interested mem-bers of the public to submit written comments. This action followed receipt and evaluation by the Comission of the analyses and recommendations of the Staff on the matter.
After numerous and forceful comments were received the Commission decided to hold a public hearing:
"In light of the interest evidenced by the public in this pro-ceeding, the Comission has decided to hold an informal public hearing on the proposed regulations." 42 red, Rea. 64703 (December 28, 1977).
Accordingly the Commission issued a Notice of Hearing in the rulemaking proceeding in December 1977.
However, at this time the Corsnission had already established an " insider" threat as a basis for formulating detailed safeguards requirements.
Such an " insider" threat was postulated for reac-tors in 10 CFR 5 73.55, promulgated in final fom some ten months before U
issuance of the Notice of Hearing in this proceeding:
"The licensee shall establish and maintain an onsite physical protection system and security organization which will provide protection with high assurance against successful industrial sabotage by both of the following:
"(2) An internal threat of an insider, including an employee (in an, pos i ti on). "
2/
42 Fed. Rea.10836 (February 24,1977).
,o P00R OMNM
4-The necessary relation between a postulated " insider" threat and tPe clear-ance rule proceeding was recognized at the outset of the rulemaking proceed-ing, As the Comission put it in the notice initiating the notice-and-coment phase of this rulemaking:
"These regulations are being prepared to utilize a personnel security program as a measure to protect against those employed in the affected nuclear activities who might conspire to steal or divert special nuclear material or conduct sabotage which would endanger the public by exposure to radiation.
Of course, a clearance program itself does not entirely solve the problem of the ' insider' but, in the opinion of the Commissicn, experience has shown that such programs do substantially reduce the risk of such conspiracies. Moreover, the proposed program is one of several elements in the Commission's overall safeguards program which together protect against threats, both internal and external." 42 Fed. Rea.14880 (March 17,1977).
Thus, from the very beginning, the existence of an " insider" threat has rea-sonably been taken as a given by the Staff for the purposes of this proceeding.
However, in its Report the Board repeatedly emphasized the Board's conception of its task as including an examination into the question whether there exists a " threat" which would justify any clearance rule at all (and, if so, what the nature of that threat is).E It is apparent from the way in which
,3_/
ine Board's Report includes these statements:
"the rule as proposed rests on the unsupported assertion of' the Staff that a serious risk to the defense and security of the Nation or a significant threat to the health and safety of the general p;alic exists."
(Report 32)
"the question of whether or not a rule of any sort is needed
' depends upon whether the Staff has produced evidence to show' a significant risk exists."
(Report 37)
"the Staff assertion of a serious risk to the common defense and security of the nation or of a significant threat to the (Continued) 10 % W'
. this rulemaking proceeding developed that the Board failed to properly appreciate the scope of the proceeding and to recognize that certain matters, including in particular the existence of an " insider" threat that could be used to justify a clearance rule, had been previously decided by the Commis-sion.
We believe that the Staff was warranted in relying on this " insider" threat as justifying the need for some clearance or similar program to augment present safeguards requirements, and in not " reinventing the wheel" in this proceeding by reexamining de novo the nature of the safeguards
" threa t".
Moreover, we believe that in insisting that the Staff " prove" the need for some clearance rule, the Bo:rd misconceived the role of the Staff in the 3_/
(Continued) health and safety of the general public, as a consequence of an act of sabotage or theft at a nuclear power plant, is not supported by any factual submission in the record."
(Report 38)
"no documentation supporting [ assertions by the Staff that sabotaging a reactor could result in extensive loss of life and property] has been offered by the record" and "when the Board requested specifics as to what the consequences would be from a maximum radiological sabotage incident, the Staff did not provide any." (Report 39)
"In the absence of [ specific information on the probability of a successful theft or sabotage attempt] the need for the proposed rule... cannot be established." (Report 40)
"the Staff has failed in its obligation to present clear information as to the severity of consequences from successful theft or sabotage of special nuclear material at a nuclear reactor." (Report 40-41) 1094 '"r]
. proceeding.M The December,1977, Notice of Hearing in this rulemaking proceeding made clear that the proceeding was to be in essence an informal one, and stated that the Board:
"without rendering any decision or making any recommendation, will fon;ard the transcript of the hearing to the Co=nission together with an identification of the major issues raised at the hearing." 42 Fed. Reg. 64704 (December 28, 1977).
Before the Notice of Hearing has been issued, the Commission had before it Staff analyses and recommendatfor which, in sum, informed the Commission of all the. Staff knew regarding the pros and cons of the proposed rule.
Nothing in the Notice of Hearing operated to divest the Commission of this information.
Since the Commission had before it all the Staff views,E since the hearing was to be informal and was never intended to be the exclusive basis for a Comission decision, and since the Board was merely to forward the record of hearing to the Commission for decision, the Staff had no reason to b>elieve that it had some " case" to prove or some evidentiary burden to bear.
It is true that, on the day before the final statements of the participants were due, the Commission renuested recommendations from the "---d as to whether a clear preponderance of the information in the record favored adoption of the rule.
However, in its request the Commission made it clear that the new 4_/
See quotations from Board's Report, note 2 suora.
While the Board's state-ments, taken in sum, appear to say tnat on this record it cannot be determined whether or not a clearance rule of any so--t is needed, at page 34 of its Report the Board nevertheless recommended that the Commis-sion issue a rule " utilizing the screening alternatives that utilities currently employ.
5/
There were several vic es on the issues involving this croceeding.
For example, in SECY 76-508 it was noted that ELD did not believe that the necessity of a SNM access authorization program for light water reactor plants have been sufficiently demonstrated.
1094 EI
4
"~
70R OR!8!NAl responsibility assigned to the Board did not alter the informal nature of the proceeding, and the Staff had been given no reason to believe that this change in the role of the Board signified also some change in the role of the Staff.
Indeed, such a late change in the rules of the proceeding would have been unreasonable, since at that late date the particiipants had long since completed their evidentiary presentations to the Board.
It is unclear to us how the Board could have gone so far astray in character-izing the role of the Staff--perhaps the Board had in mind other rulemaking proceedings, such as the ECCS proceeding when the Staff did assume the role of a staunch advocate of a firm Staff position.
But the resuTt is an unfortunate Report which has the effect of confusing a genuine policy question--how best to take account of an " insider" threat in formulating safeguards standards--
with a legal, procedural question. I 6_/
Tne Board furtner cor. fused the issue by referring to
" theft or sabotage" at reactors.
The record makes it clear that sabotace and not "thef t" is the concern at reactors.
(Staff's direct statement at 4 and concluding statement at 6, 7).
Therefore, the Staff did not address the consequences of "thef t" at a reactor.
Infomation was pro-cided on the consequences of sabotage.
(TR 495, 497, 498, 512, 519)
As to the probabilities of sabotage occurring, the Staff stated in its concluding statement, at 6, that:
"The probability of an act of radiological sabotage by an insider is presently considered unquantifiable.
The consequences of such sabotage are estimated (and maximun's deter nined) in the Reactor Safety Study, WASH-1400.
The Staff test.ified (Tr. 519) that the consequences of the worst case successf~ul sabotage could probably be no more than that establisned for the worst accident postulated in WASH-1400.
The risk of s.abotage actually occurring depends upon many unpredictable factors.
Statements have been made that the safe operating record and lack of a prior act of sabotage should serve as a data base to state that the risk and threat are not such as to justify)
(Continued
\\D %
^,co
. Staff's Lecal Analysis of the Ouestion of Whether the Com rission is Recuired to Adoot for its Access Clearance Procram the Standards of DOE Sections 161(b) and 161(1) of tre Atomic Energy Act of 1954, as amended, provide the "ommission with general authority to promulgate safeguards requirements.
However, the authority afforded by those sections was con-sidered by the Atomic Energy Commission as insufficient to adopt a clear-ance program which impacts on first amendment rights in light of Schneider v.
Smith', 390 U.S.17 (1968).- I Section 161(i)(2) was amended in 1974 to pro-vide express authority for the institution by the NRC of ani access authoriza-tion program wherein a person's background would be reviewed prior to per-mitting the individual to be involved in certain activities at reactors and fuel cycle facilities.E Under section 161(1)(2) the Commission is required to make the determination granting access authorization.
The scope of the 161(i)(2) investigation for the access authorization is described by statute as an int:ividual's " character, 6/
JContinued) this proposal.
(Wisconsin Electric, Tr.173, wriitten testimony of Duke Power, p. 9).
The fact that no radiologiical sabotage has occurred does not mean that it will not occur.
It is neces-sary to presume that such an act could occur.
Thus, the access authorization program is necessary to assist the Commission in meeting its statutory responsibilities to provide adequate assur-ance that such an act, with its serious consequences, does not occur."
7]
See also 1. Report 93-989 at 9 (1974) where the JCAE indicated that explicit statutory authority was necessary to assure the validity of the access program.
The Privacy Act of 1974 also provides that absent express statutory authority or an individual's consen t, an agency may not caintain records pertaining to an individual's exercise of first amendment rights.
5 USC 552a(e)(7).
8f PL 93-377 (1974).
or7
\\o44
'a 00 00bhkl
_g associations and loyalty".E Section 161(i)(2) establishes the standard for granting access authorization as access not being inimical to the common defense and security.
In congressional testimony prior to the enactment of this legislation, the Commission described the programs that would be imple-mented, if the legislation passed, as the traditional Q and L clearance programs which were subject to the 10 CFR Part 10 criteria.E Indeed, sec-s tion 161(i)(2) as implemented by ERDA (and now DCE) is a program identical to the Q and L clearance programs based on 10 CFR Part 10.E The legal question here is whether this Commission is free to deviate from the path of ERDA and now DOE in implementing a section 161(i)(2) mater-ial This question arises because of the legislative historry of access program.
the Energy Reorganization Act of 1974 (hereinafter Reorganization Act)
The effect of this statutory authority is to permit the collectio n of 9/
information concerning individuals' exercise of first amendment rights including beliefs and associations.
A full field background inve:stiga-tion would be such an investigation.
A background investigation may also obtain infomation about a person's past reliability and stability.
However, if the principal interest of an investigation is to detemine a person's reliability and stability, information might be obtained through psychological assessment.
Such an assessment, although con-sidered by some to be an invasion of privacy, would arguably not involve a first amendment tyre investigation since its focus would ba on relia-bility and not a person's loyalty and associations.
Therefore, a reliability program :ould arguably be authorized under sections 2 61(b) and 161(i)(3) as we'l as 161(i)(2) of the Atonic Energy Act.
A further discussion of a reliability access program will be the subject of the Staff's response to the Secretary's June 12, 1979 reques t.
10/ AEC Omnibus Legislation, Hearings before JCAE, 93rd. Cong. 2nd Sess. 55 (1974).
11/ 10 CFR Part 710 (1977).
Part 710 was modified to reflect the ac:dition of access to SNM.
~
1094 El
. The material access clearance program, to the extent it pertains to licensed activities, is a regulatory function.
Section 201(f) of the Reorganization Act transferred the licensing and related regulatory functions of the AEC to f1RC.
Safeguard responsibilities were established for the newly created offices of Nuclear Matorial Safety and SafeguardsE and the office of Nuclear Reactor Regulation.E Thus, the Reorganization Act on its face vests with the Commission sole authority rs detennine the access program necessary and appropriate to protect the common defense and security with respect to licensed activities.
The statute on its face contains no general requirement for NRC to defer to 00E.N However the legislative history of the Reorganization Act may not be clis-missed.
The Supreme Court in Train v. Colorado PIRG, 426 US 1,10 (1976),
a case involving the Atomic Energy Act of 1954, as amended, and the Federal Water Pollution Control Act, found the Court of Appeals in error for excluding legislative history in discussing the meaning of the PdPCA notwithstanding a finding by that Court that FWPCA is " plain and unambiguous" and tha t "the legislative intent is clearly manifested in the language of the statute M/
Section 203(c)(2) of the Reorganization Act.
M/
Section 204(b) of the Reorganization Act.
14/ Section 204(b)(2)(S) states that certain safeguard respcnsibilities involving contingency planning require " consultation anc coordination" with ERDA new DOE.
. The Supreme Court dealt a blow to the " plain nieaning rule"E i tsel f... ".
in stating:
"When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ' rule or law' which forbids its use, however clear the words may appear on ' superficial examination'.
...In this case...the legislative history sheds considerable light on the questions before the Court."
(citations omitted) j_d at 10.
The reports of both the House Committee on Government Operations and the Senate Committee on Government Operations, the Committees which reported on the legislation that eventually became the Reorganization Act, indicated that as te section 161(i) of the Atomic Energy Act of 1954, as amended, "that the Administrator [of ERDA, now DOE] shall establish, the basic standards and procedures respecting the national security.E!
ISf The " plain meaning rule" is a rule of statutory construction which S
states that if the language of a statute is plain and unambiguous a Court cannot give the language a different meaning.
Su therland Statutory Construction 46.01 (4th Ed.1972).
--16/ H.Rpt.93-707, at 27 (1973); S. Rpt.93-980, at 84 (1974).
See also similar references to sections 145 and 186(c) which give the Cor: mission authority based upon common defense and security.
But see, reference to section 109, an authority limited to common defense and security, where a caveat concerning national security limitations was not placed on NRC.
However, section 109 has since been amended to require certain consulta-tion in the area of the common defense and security, P.L.95-242 (1978).
The tenn " national security" used by the drafters of the legislative history is a term not found in the Atomic Energy Act.
That Act uses the term " common defense and security".
cl 1094,m
. The House Report in reference to the AEC's safeguard resportsibilities also stated that:
"ERDA also will assume AEC's basic responsibility for security.
This certains to the safeouardina of soecial nuclear material acainst diversion from oeaceful to weaoons uses, to declassifica-tion activities and the safeguarding of restricted data, and to other security aspectgf the provisions of the Atomic Energy Act of 1954, as amended."
The conference report further " clarifies" legislative intent by stating "all matters related to the common defense and security, as that terms [ sic] is used in the Atomic Energy Act of 1954, as amended," is the responsibility of the Assistant Administrator for National Security [of ERDA].E These legislative materials strongly suggest that the drafters of the legislation had in mind a more limited transfer of authority from AEC to NRC in the common defense and security area than the actual language of the legislation would permit.
However, other legislative history makes this less clear.
Senator Pastore, the then Chair nan of the JCAE, during the Senate debates on the reorganization legislation sought a clarification from Senator Ribicoff, the Chainnan of the Goverr.aent Operations Committee and floor manager of the legislation, as to the effects of the reorganization on the common defense and restricted data.
Mr. Pastore stated:
17/
H. Rot.93-707 at 15-16 (emphasis added).
g/ Conference Rpt., H. Rpt. 93-1445, at 27 (1974).
. "I would hope that basic policy must be established by one agency and because AEC will be separated into two agencies that it would be rather dangerous if we began to split up this responsibility for restricted data and the common defense and security, which could injure our security and sensitive features in the Atomic Energy Act.
Basic policy for all such responsibility provided for in that act must repose in ERDA.
clarify what the intent is of the legislation.'pg or less I hope that the Senator from Connecticut will m Senator Ribicoff responded:
"Mr. President, the distinguished Senator from Rhode Island is correct in his interpretation that ERDA has undivided respon-sibility for settling basic policy relating to restricted data and the common defense and security, fio one knows better than the Senate co-Chairman of the Joint Committee on Atomic Energy that this responsibility cannot possibly be shared by two agencies without seriously undermining these concepts as provided in the Atomic Energy Act.
I would like to make clear that it is not the intent of this bill to divide responsibilities between ERDA and flSLC [fluclear Safety and Licensjng Commission, the title given to !!RC in the Senate legislation] in the crucial areas of restricted data and the common defense and security.
The bill itself, as well as the reoorts, receats acain and acain that f;SLC's authori:V ex tencs only to t"e licer. sed sector and not to orocrams o t reina carried out Dv tne ceveierent s1ce of tne AEC, wnicn wiii ce transferrec to EUA.
The only area that I can see ERDA and f1SLC having a shared respon-sibility with respect to security pertains to safeguards and the obvious need for cooperation and coordination between the two agencies in developing contingency plans for dealing with threats and actual terrorist activities relating to nuclear facilities and materials.
Obviousiv, as the licensed nuclear industry exoands to the comino vears. USLC will want to draw uoon :ne excer:1se develocec over tne cast 20 years by tne ceveicreent s1ce of AEC in relation to safecuarts, as crovicec in sec-tior 20'to;;;) of :ne bili.
But nis in no wav c1ves "SLC any kin: of iuris:1cticn over tne weacons crocra" or am other cevelco entai activities transferreo to ERD, as orovicec in section 2;-:c;.
19/ Concressional Record S. 15050 (August 15, 1974), 6 Leg. History Energy Reorganization Act 4159 (1974).
~
r a
e 109/
O 1
P00R ORANAL
. I am as concerned as is the distinguished Senator fra Rhode Island that the proposed reorganization not in any way bifurcate the basic responsibilities relating to restricted data and the common defense and security which are clearly transferred to ERDA.
I commend the Senator for raising this important issue and deeply appreciate his continuing concern for the safety and the security of the Nation as we proceed to develop nuclear power for peaceful purposes.
Mr. Pastore, I want to thank the Senator.
I believe that straightens i t ou t. "
Id,. (emphasis added)
A careful reading of this colloquy suggests that Senator Ribicoff did not subscribe to the narrow NRC role in the common defense and security area arguably called for in the House and Senate reports and the conference report.
According to Senator Ribicoff (and, inferentially, Senator Pastore),
the concern with regard to an independent NRC role in the common defense and security area lies not with the licensed sector, but with the possibility that NRC might by regulation interfere with ERDA's (novi DOE's) weapons and related national security programs.
This view of the Reorganization Act in no way detracts from the NRC's authority in this rulemaking proceeding, which specifically deals only with the licensed sector and in no way applies to DOE facilities.
This colloquy between Senators Ribicoff and Pasture is especially significant because it became the subject four months later of an important series of questiens during the confirmation hearings of the initial Commissioners' for 1094 E9
. NRC.E The nominated Commissioners were asked essentially the following question:
"Beyond the coordination and consultation between ERDA and NRC on safeguards contingency planning, as specifically provided by the Act, what sort of relationship should there be between ERDA and NRC in the safety and safeguards areas which is consistent with have veto power over the policies of the other?' gld one agency the independence of each agency? For example, s Mr. Anders responded:
" Insofar as the safeguards area is concerned, it seems to me that the sort of relations 5io that should exist between ERDA and NRC is reflected in :ne collonuv bet..'een Senators Pastore anc Ribicoff set fortn on cace S.15050 of tne Conaressional Recorc of Avaust 15, 1974.
Insofar as tne safety area is conconcerned, tne relationship will, of course, be different since there will be no sharing of responsibility and each agency will be independently responsible for sharing the requisite protection of the public wMh regard to its own activity.
In general one agency should not have a veto power over the powers of the other.
However, certain ERDA facilities are subject to licensg' by NRC, and to that extent NRC has a " veto" or licensing powe r.
Mr. Rowden responded:
"Each agency should be in a position to exercise authority in the sphere of its resoective responsibilities.
An act descriotion of the fracework of the relationshio between the two new acencies in 20/
Ine record of the confirmation hearing is not part of the legislative history of the Energy Reorganization Act of 1974, however, it is
~~
relevant to the issues here because it shows the intent of the Com-missioners at a time when the legislation was fresh and the responses were given to the very Senators who were the Chairmen of Committees involved in the reorganization legislation.
g/ Ncminees to the faclear Regulatory Commission, Hearings before the JCAE, 93rd. Cong., 2nd Sess. 10 (1975).
22/
Id.
(emphasis added).
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. the sa feguards area is set forth 'in the floor discussion between Senators Pastare and Ribicoff on oace S.15050 of tne Concressional Record of Auoust 15, 197_4.
As respects tne safety area, each agency generally nas independent responsibility in regard to the conduct of its own activities and one agency should not have veto power over the pol.cies of the other.
Section 202 of the Energy Reorganization Act of 1974 does, however, make c9 pain categories cf ERDA facilities subject to licensing by NRC."-
In summary, some legislative history suggests that NRC must defer to DOE regarding basic standards and procedures for protecting the common defense and security, while other legislative history suggests that this deferential role only extends to NRC actions as they might affect DOE's weapons and related national security programs.
Given the early views of the NRC Com-missioners on this matter quoted above, and given that only the latter legislative history is consistent with the actual language of the statute, the choice must be in favor of an interpretation of the, Act as essentially preserving NRC's independent legal authority.
Thus, while the contrary legislative history gives rise to a substantial legal question, the better legal view on balance is that NRC is not legally compelled to follow basic DOE standards and criteria relating to the common defense and security in this access rulemaking proceeding.
Of course, this cannot be the end of the inquiry, for what the law may not compel may nevertheless be compelling for other policy reasons.
There are sound policy reasons why the clearance programs of DOE and NRC should be M/
ic. at 59 (empnasis added),
1095 00'
. reasonably consistent. This need for consistency is most clear (and arguably mandated by the Ritiicoff-Pastore colloquy quoted above) in the case of so-called " mixed" facilities where both DOE and NRC have safeguards duties over closely related activities.
To be sure the activities of NRC and DOE are in many ways different due to differing enrichment levels, materials, types of reactors, etc., resulting in differing degrees of safeguards that might be required in the interest of the common defense and security.
- But, still, there is a lot to be said in favor of an NRC access clearance program that dces not grant access to the same person who has been denied access by DOE, and does not restrict access to the same types of materials to which DOE allows free access.
Moreover, as indicated above, in requesting the legislative authority for the access program the Coanission described the program that would be implemented if the legislation' was adopted as the tradicional Q and L clearance program.
The Alternatives Censidered by NRC The hearing record centains substantial information regarding both alterna-tives to an access clearance program and the appropriateness of the access criteria in 10 CFR Part 10 should an access clearance program be foun:d The record as a whole indicates that the Staff approached! the necessary.
proceeding with the view that there was merit in examining alternatives.
- 095
')C2
. Because the oral phase of this rulemaking proceeding was preceded by a notice and comment phase, various alternatives to a clearance program, most notably the use of psychological evaluations, were discussed in prior written submissions.
The Staff's contribution was SECY 76-508 which discussed the various alternatives and dwelt at some length on full field background investigations and psychological assessments.
This paper was included in the testimony the Staff submitted at the outset of tne oral phase of the proceeding, as was the Staff's " Enclosure 0" which was titled, "fleed For and Efficacy of Psychological Assessment".
This submittal is cuite comprehensive.
Board member Frings described it, without dissent from her colleagues, as "an excellent paper on the pros and cons of psychological assessment".b This belies the Board's broad statements that "the ' record as it now stands does not contain a reasoned basis for concluding that a clearance program is superior to other alternatives:
(Report 49) and that the " Staff's pro-posal does not rest on principled evaluation of alternatives" (Report 62).
The record of the proceeding is replete with written and oral testimony, which as the Board itself acknowledged, "would lead one to conclude that the Staff proposed the DOE security program because it had evaluated other alternatives and found the existing DOE program to be super ior on the merits."
(Report 48) 24/
Hearing I-a script at 51.
P00RORlBINAL
. True, there is some confusion in the record rcgarding the nature of the Staff's evaluation of alternative access criteria.
(See testimony of t1RC Staff witness Jonas at TR 537).
However, this has nothing to do with alternatives to an access clearance program, but deals rather with the access criteria that might be employed should an access clearance program be instituted.
Moreover, even as to alternative access criteria, the record shows that the Staff did not proceed on the basis of some simple assumption that the law compelled adherence to DOE criteria.
The S'taff's direct testimony (at pages 18-22) and.ne Staff's concluding statement (at pages 21-24) described the Staff's analysis of the criteria, discussed the question of the relevance of criteria for an information access program to a materials access program.
The Board (Report at 71-72) acknowledged the Staff's effort to develop different criteria.
Finally, che Staff wishes to point out that the Board's own evaluation of alternative programs was flawed.
The Board adopted the proper approach in stating as a nrinciple that the alternative with the least impact on First Amendment and privacy rights that would still achieve the purposes of the rule should be adopted (Report 33).
Yet there is no analysis in the Report which shows how the Board's recommended program, which includes background investigatior.s, psychological screening, and continuous observation, has any less impact en these rights than the Staff's recom endatien, which included only background investigations (See Report 33).
1095 004
f
..y%
j A
J UNITED STATES E%
C
,o NUCLEAR REGULATORY COMMISSION 3 * "eh' f.-
WASHINGTON, V. C. 20555 o.ra s F ~
S.%vp#p July 30, 1979
.,g MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford Commissioner Ahearne b Leonard Bickw'.t, Jr., General Counsel FROM:
SU3 JECT:
NRC CLEARANCE RULE PROCEEDING:
OGC C,OMMENTS The Executive Legal Director has advised the Commission that there is some doubt whether this Commission is free to deviate from the model supplied by ERDA (and now DOE) in implementing a section 161(i)(2) material access program; but that "the better legal view on balance is that NRC is not legally compelled to follow basic DOE standards and criteria" relating to such a program.
(Emphasis supplied)1/
h'e agree with ELD's basic conclusion that NRC may, depart from the DOE model in tailoring a clearance program of its own.
However, we would make two supplementary poin:s.
First, ambiguous aa.d vague legislative his'
, 20es not overrule the plain meaning of a statute.
This cardinal principle of statutory interpretaticn is especially appropriate when -- as here -- reading which departs from facial meaning of the statutory terms could intrude into constitutionally protected areas such as free association, speech and beliefs.
As Staff states, at p.
10, the "Reorganination Act vests with the Commission sole authority to determine the access program necessary and appropriate to protect the common defense and security with respect to licensed activities."
No provision of the statute recuiras NRC to defer to DOE in this regard.
This issue therefore arises only from the legislative history, and then with considerable ambiguity 2/ and
-1/
See Memorandum for Chairman Hendrie and Cormissioners Gilinsky, Kennedy, Bradford and Ahearne from Howard K.
Shapar through Lee V.
Gossick, subject:
Clearance Rule Proceeding.
-If The E.0 paper documents the ambigucus nature cf the legislative history at pages 11-16.
Centact:
Marjorie S. Ncrdlinger, CGC jQg} Q[]
634-1465
2
. vagueness.3/
Nothing in Train v. Colorado PIRG 4/ requires that ambiguous legir? : tive history be read to overrule the plain mean-ing of a statA...,
In the absence of a substantial and umambiguous legislative LM;ry supporting a different interpretation the plain meaning of a statute should control.
See Gensco, Inc. v.
fallina, 324 U.S.
244, 260 (1945); United States v.
Dickerson, 310 U.S.
554, 562 (1940).,
Second, to conclude that NRC must adopt the full ERDA/ DOE program could put the NRC in the position of adopting a clearance program that would intrude more than reasonably required _5_/ into areas relating to rights of speech, beliefs and free association pro-tected by the First Amendment.6_/
Such unreasonable intrusions 3_/
The legislative history arguably required NRC to follow the
" standards and procedures" set by ERDA (DOE';.
But it is not made clear what is meant by " standards and procedures".
The phrase is susceptible to other interpretations than that NRC must adopt an identical clearance program containing all of the criteria used by ERDA.
Furthermore, an argument could be made that even were NRC required to use the I:RDA criteria, the agency need only apply the criteria relevant to the particular program being instituted.
The constitutional considerations mentioned above also argue in favor of such a view.
-4/
426 U.S. 1, 10 (1976).
It is notable that the PIRG court found forceful legislative history to aid its interpretation in that case, and that a different construction. would have in effect repealed a significant section cf the regulatory plan set forth by the Atomic Energy Act.
The court doubted that the Congress would have taken such major action without a more extensive legislative history to support it.
I_d,.
at 24.
-5/
Such a situation appears to have occurred, as revealed in the transcript of the hearing, pages 536-550, and is summarized by Ms. Frings as follows:
So what fou are really sayi.g is that you are willing to inpose this invasion of privacy on an i.ndividual cver categories of information which the Staf f even realires may not be relevant an all to access to special nuclear material.
Transcript, p.
550.
-6/
See e.g. Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963).
300RORIBl01 eo
The Cor=nission 3
have been held improper in several Suoreme Court decisions.
United States v. Rodel, 389 U.S.
258 '(1967).
See also Schneider v.
Smith, 390 U.S. 17 (1968).
Only the least intrusive means of accomplishing the objective of a clearance program may be adopted where constitutionally protected rights are implicated.
Therefore, a permissible program must be carefully drawn and relevant to the protection to be achieved.by it.
different nature of the activities being protected..gcau.se of the NRC 's needs are arguably not the same as DOE /ERDA b
_/
Tnerefore,
a reasonable construction of the statute would permit NRC to tailor its om program co meet its needs.8_/
Nohetheles s, policy considerations suggest thar. the Commission cake reasonable efforts to frame a progra= which is cons stent with the DOE /ERDA program.g/
cc:
OPE EDO ELD SECY El Even where the activities ar e alike, were '.GC 's record to shcw that the DOE /ERDA program was core incrusive than reasonably required to perform the desired function, NRC need not adopt that program.
E This reasoning is supported by a line of cases holding that
"[it] is a cardinal principle of statutory construction that if there are tuo possible interpretatiens of a statu:e, one
-/nich 1.culd raise a cuestion of constitutirnality, and another
-inich xculd not, then the construction which fairly avcids the constitutional cuestion must be adcreed.
District cf Columbia
- v. Davis, 371 F.'2d 964, 966 (D. C. Cir. 1967); American Corrun-
_catien Associates v.
Douds, 339 U.S.
382 (1969).
i
':e have been advised that DOE is currentl.
reevaluating 4.
s criteria and that NRC is represented at the DOE celiberr.*. ions.
DOE does not expect to have neu criteria in place earlir.: than one year rrom now.
P00R Oll8lk
3ECY g
- j. g,
o UNITED STATES 8
, (f' g'g NUCLEAR REGULATORY COMMISSION SECRETARIAT RECORD
+
g
'E WASHINGT oN. D. C. 20555 3'(Mv
%, % * * *p JUL 311979
. s.
x-m MEMORANDUM FOR:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford Commissioner Ahearne FROM:
Howard K. Shapar Executi.e Legal Director Original signed by R. G.Smi2 THRU:
1 Lee V. Gossick FExecutive Director for Operations
SUBJECT:
SECY 79-319; RESPONSE TO COMMISSION REQUESTS IN CLEARANCE RULE PROCEEDING The Secretary's memorandum of June 12, 1979 requested that the Staff provide an opinion on alternative clearance programs based on authority other than section s61i(2) of the Act and a discussion of reliability standards. Section 1611(2) authorizes the Commission to investigate certain individuals' character, loyalty, and associations and to grant access t o such individuals provided such access would not be inimical to the common defense and security. The other authorities considered in preparing the enclosed response (Enclosure A) are sections 161b and 161i(3) of the Act which provide general authority for a safeguard progra:. The alternative programs considered are based upon the views of the Office of Standards Development, Office of NucIear Reactor Regulation and Office of Nuclear Material Safety and Safeguards.
In ' addition the Secretary's memorandum requested the Staff to prepare a draft fuel cycle clearance rule. Enclosure B provides a clearance rule for fuel cycle f acilities and addresses the concerns of Commissioner Ahearne.
Contact:
R. L. Fer.ner G2-8692 b
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'k u: s. o ov r a e ne s,<v rwm w e o r ric a, v ote - ea e.4a4 NRc FOK.M 318 (9 76) NRCM 0240,
Enclosure A ALTERNATIVE ACCESS CLEARANCE PROGRAMS
~
-The access clearance program under roposed Part 11 is a program that provides for an investigation that, among other things, collects information concerning an individual's exercise of first amendment rights, including an individual's beliefs and associations.
Section 161i(2) of the Act provides the express statu-tory authority necessary for the proposed program which may have a chilling effect on an individual's er cise of first amendment rights because of employ-mer.t in selected licensed facilities. /
However, section 161b and 161i(3) of the Act which provide the Conmission with general authority to promulgate safeguard requirements could be utilized to support an access program which would not chill an individual's exercise of first amendment rights.
/
-*/ Schneider vs. Smith, 390 U.S.17 (1968), S. Rpt. 93-99 at 9 (1974), see also Privacy Act 5 U.S.C. 552a{e)(7). Primarily invohed are rights of poTTtical association.
--**/ A clearance program under the general authority provision of the Act would not necessarily have to be run by the Ccmmission.
The Hearing Board has recommended that industry run the clearance program under the Commission's guidelines.
The' Staff does not support an industry-run program as it questions whether manage-ment shculd be delegated the extraordinary authority beyond the normal employment screening to investigate, assess, and make decisions concernicg an employee's suitability for access and whether such employee might steal, divert or commit sabotage with special nuclear material. 'In any event, an industry conducted program would require establishing the following elements:
(1)
Investigator qualifications, training and certification would have to be established.
(2)
Investigation content, scope, management, and quality assurance would have to be established.
(3)
Inspection criteria would have.o be established.
(4)
Standards for protection of information would have to be developed.
(5)
Adjudication criteria and an acceptable adjudication process would have to be developed.
095 0']
(6)
An acceptable appeals procedure would have to be developed.
E
The question of whether the general authority is sufficient to support a program different from the proposed Part 11 access authorization program is dependent
'on the extent that the investigational elements of the alternative considered infringe on first amendment rights.U Therefore, an examination of the specific features of each alternative and the nature of the inquiries (i.e., categories of the information reviewed) associated with the alternative is required.
~ Any alternative that involves some form of an investigation into a person's loyalty and associations may be difficult to support under the general authority.**/
On the other hand, whether a clearance program which is not based in some part on an investigation of a person's loyalty and associations would meet the needs of the Cormission is dependent on the purpose of the program and the criteria used to deny access.
As indicated below, the Offices of Nuclear Reactor Regulation, Standards Development and Nuclear Material Safety and Safeguards do not believe that alternatives which do not include some 'orm of a background investigation into associations would meet the current objectives of the access authorization program.
The options considered by the staff in SECY 76-508 as alternatives to the proposed Part 11 access aatharization program were psychological (behav oral) assessment
- /
and structured interviews.
The nature of the inquiries associated with each of these alternotives is deecribed below:
Psycholoaical (Behavioral) Assessment Three forms of psychological or behavioral assessment have been used extensively by other organizations.
They include on-the-job behavioral cbservation, psychological testing (using standardized tests), and
- / Schneider v. Smith, suora.
l 9
j@
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++/ Id.
L L
- /
In SECY 76-5C8 the staff assumed a background investigation would be conducted as : art of either alternative.
The Hearing Soard also included background investigation as an eiement of its recomended access program.
('p. 61,
~
Re a rt of Hearing Board, April 1979).
.' clinical evaluation.
It should be noted that they are not mutually
.,. =..
exclusive, and are normally used in combination with one another or in combination with investigative options.
Behavioral observation does not require obtaining information concerning a person's Toyalty and associations.
While the question of intrusiveness is present, an access clearance program based upon this option could probably be justi.-.
ander the Commission's general tafeguards aethority to the utent that question cf loyalty and association protected by the first amendment were considered not relevant t granting access.
Clinical evaluation and standardized testing may also be supported under the Commission's general authority although solicitation of background information concerning loyalty, political and religious associations by a clinician, and the use of like questions on standardized tests, would likely be viewed as infringing on fic it amendment rights.
Questions in such areas would need to be removed to support an access program based on clinical avaluation or standardized testin[ 'inder the general authority.
Structured Interview A structured interview utilizes information obtained from the interviewee in the form of a personal history statement.
Its effectiveness may rely upon the threat of a background investigation being conducted if the interviewer believes the subject is not candid.
Inquiry raade during the interview would normally involve issues infringing on first amendeent rights and, therefore, the alternative would not be suppertable under the general authority.
q 4:
Re_ liability Standard vs Clearance rogram The proposed Part 11 access authorization program consists of an investigation of a person's background.
A full field background investigation may obtain information about a person's past reliat,ility and stability which might be used to predict future s
behavior.
As such the background investigation is one method to obtain information to measure a person's future reliability.
Programs which involve reliability vary according to the emphasis as to what is to be measured and the purpose of the program.
For example, standards used in reliability programs include general employment criteria, suc as past employmen' performance, mental or physical health 5
standards, as they relate to the ability to maintain some job performance level, and basic skills or humar: characteristics which bear on reliable performance.
In the staff's (SD, NMSS, NRR) opinion, any standard (nhether called a clearance, screening process, or some other name) ought to be based on the following process:
1.
Co'ncerns to be addressed must be identified.
These may be to prevent individual malevolence, to protect against individual inccmpetence, or to insure that individuals can function adequately in high stress situations.
2.
Specific kinds of human characteristics or facts about an individual must be identified.vhich bear on the target concerns, such as character, trustworthiness, or emotional stability.'
3.
Indicators of the human characteristics must be identified which will se ve as decision criteria, such as lack of certain felony convictions,or absence of emotional instability. /
4.
Lastly, guidelines as to what kind of informtion will be collected, and by what means, must be established so that appropriate information is obtained relevant to the decision criteria.
q: 7 109c3 u1 >
- / The efficacy of emotional instability assessment and reliabilitv programs would have to be independently established.
The Office of Star.~dards Cevelc-en.
ntracts under wa" which should provide such results bv Aucust 195' Ny e
.The clearance program under proposed Part 11 explicitly covers these four areas in the following way. The concerns addressed are to prevent theft, diversion, or sabotige of facilities.
The characteristics of concern are identified in 161i(2) as character, associations and loyalty.
Decision criteria are those contained in 10 CFR Part 10.11.
Information pertaining to the criteria is collected through a
- 1. -
. background investigation according to guidelines which specify " investigative leads" to be followed.
A material access authorization program based upon a reliabili j standard could be expected to consider broader areas than the proposed Part 11 clearance program such as general employment suitability, mental health, aptitude, and behavior.
The primary cencern would remain protection against malevolent acts suc? as theft, diversion and sabotage, the elements under the section 161i(2) program, out also e
characteristics such as mental capacity, stability and judgment under stress.
Decisica criteria could also differ by including the additional characteristics.
Information collected relevant to the decision criteria could include identifi-cation of past behavior by investigation, and also assessment of personality characteristics and observation of on-the-job behavior.
An access program emphasizing reliability criteria would serve purposes in addition to safeguards.
For example, the use of psychological assessment might not only serve the purpose of identifying individuals who could cormiit malevolent acts, but also might identify those who are error prone, or who could not perform a critical task or function.
Hence, the option deals not only with safeguards goals but also with safety goals and possible general job performance or suit-ability.
i
=
s j
+ - - -
ONMSS, ONRR, and OSD continue to believe that a program based on reliability for
- ....L nuclear facilities would have to have an investigative element +o be effective as past behavior is still in their view the best indicator of certain kinds of char-acteristics which should be used for the basis of excluding individuals from sensitive positions.
It would be reasonable to expect that additional elements such as emotional stability assessment might complement the investigative option and provide greater assurance that malevolent or unsafe job behavior is minimized.
However, a program based solely on reliability that totally excluded loyalties and associations to avoid first amendment questions would not appear to be responsive to legitimate identified concerns relev. ' to public health and safety.
For example, a clearance program based upon reliability alone may: permit a person access to speciai :uclear material who is reliable and stable, but who advocates achieving social or political change by use of violence.
Recommendations While ONMSS, OSD, and ONRR staff have been advised of our legal opinion of July 16, 1979, which concludes that the NRC is not legally compelled to follow casic
' standards and procedures promulgated by the Department of Energy, those offices nonetheless believe that a traditional government clearance program is the best alternative available at this date.
Accordingly, they recommend as follows:
1.
Tne Office of Nuclear Material Safety and Safeguards recommends that the draft rule as proposed in enclosure B be adopted in the area of fuel cycle facilities and trar.sportation involving formula quantities of special nuclear material.
2.
The Office of Nuclear Reactor Regulation recommends that the rule be adopted as originally proposed in SEC] 76-508 with 1095 E E adendnerats in the areas of grandfathering at power reactors and interim access requirements as outlined in the staff's concluding statement to the Board.
In the alternative, and c3 a second choice
^
the Office of Nuclear Reactor Regulation recommends that for power reactors the Commission adopt an R access authorization tesed on a NAC investigation and adopt other requirements that may be necessary for power reactor license'as as appropriate for unescorted access to vital areas.
Non-power reactors would be -
excluded at the present time pending completion of a separate on-going staff review of the total safeguards requirement necessary for such facilities.
3.
OELD has no iegal objection to any of these recommendations.
4.
Any of the above alternatives is a.ceptable to the Office of Standards Development.
~
1095 015
ENCLOSURE "B" DRAFT FUEL' CYCLE FACILITY CLEARANCE RULE Attached, as requested, is a draft clearance rule which provides coverage only for those facilities and activities in tha fuel cycle involving formula quantities of SNM which are considered to be significant to th'e common de'fense and security due to the risk from theft, d'iversion or sabotage.
Facilities and plants in which the licensee possesses or 'uses only irradiated special nuclear material subject to the exemption of 5 73.6(b} have been excluded.
The staff ccncludes that this irradiated special nuclear material offers no significant risk frcm the threat of theft or diversion because of its self-protecting radiation level and t'2 fact that material necessary to manufacture an explosive device is difficult to separate from other constituents in the irradiate material-It should be noted that:
1)
The 365 day implementation schedule accounts for estimated application preparation and submission time, license amendment review, when applicable, and average clearance time.
It assumes that Division of Security, Office of Administration, will be provided additional resources estimated at 6.2 man / persons for the first year, dropping to 2.8 man / persons for succeeding years. (these estimates are subject to Office of the Controller review).
2)
The Office of Administration cannot assure that all initial c;;1tcations can be processed in 365 days.
Past experience indicates that a small number of applica-tions can be expected to require additional processing time due to special investigative or review considerations.
To account for these cases, the draft rule provides an exception for those individuals who are employed at the time the rule becomes effective, submit conplete applications on schedule, yet do n;7 109,3 0'
?00T01GIU1 not receive authorization by the M5 dat implementation date due to delays in government processing These individuals can continue working at affected jobs until their applications are completed.
All others must hive access authorization after the 365 day implementation date to be allowed to work at affected jobs.
This draft rule differs from the rule woposed in SECY 76-508 in this respect so as not to penalize existing industry employees because of possible government processing delays, yet it still provides for having the desired safeguards benefits in place as early as possible.
3)
The original proposal contained in SECY 76-508 was written prior to ' x; sting GA0 requirements for report justification analysis.
Such analysis is underway, but its completion is dependent upon Ccmmission determination of the form of the final rule.
4)
In light of Comission approval of the Physical Protecticn " Upgrade Rule,"
conforming changes to Part 73 references would be required for this draft if it were approved for publication.
5)
Minor additional records and reporting requirements would also be required fcr the draft to bring it in conformance with ucdated investigative procedures and recuiraments and Proposed Part 25 amendments..
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2 Encicsure "B"
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Title 10 - Energy dyig:-
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s'!,.. CHAPTER-I
. NUCLEAR REGULATORY COMMISSION
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-PART 11 - CRITERIA AND PROCEDURES FOR DETERMINING ACCESS TO OR CONTROL
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1, OVER SPECIAL NUCLEAR MATERIAL PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES PART 70 - DOMESTIC LICENSE 05 SPECIAL NUCLEAR MATERIAL AGENC(:
U.S. Nuclear Regulatory Commission.
ACTION:
Final Rule.
SUMMARY
In March,1977, the Commission puulished for public comment proposed amendments to establish criteria and procedures for determining eligibility for access to or control over special nuclear material.
As a result of public and staff comments, the record of an informal Hearing, and the recommendations of the Hearing Board, the scope of the proposed amendments has been narrowed to include only those fuel cycle facilities and transportation activities who use, process, or store for=ula cuantities of special nuclear material.
Light water reactors, non-cower reactors, and facilities possessing only irradiated special nuclear material subject
.to the exemption of 5 73.6(b) are not covered by these revised amendments.
The Nuclear Regulatory Commission is now publishing thase revised amendments in final form.
EFFECTIVE DATE:
(Effective 75 days af ter publication).
FOR FURTHER I:lFORMATION CONTACT:
W. B. Brown, Office of Standards Development, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555 Phone:
301-443-5907).
,q 1093 u.
1 Enclesure "B"
SUPPLEMENTARY INFORMATION:
Section 161i of the Atomic Energy Act of 1954,
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..as amended, permits the Nuclear Regulatory Commission to prescribe regula-
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tions instituting' a' clearance program for those indiviouals who have access to or control over special nuclear material.
Specifically, the section provides that the Commission may issue r,egulctions "... designating activ-ities involving quantities of special nu'elear material which in the opinion o' the Commission are important to the common defense and security, that may be conducted only by persons whose character, associations and loyalty shall have been investigated under standards and specifications estab-lished by the Commission and as to whom the Commission shall have deter-mined that permitting each such person to conduct the activity will not be inimical to the common defense and sect.rity...."
Pursuar.t to this stacutory authority, the Commission is issuing regu-latioris which would require certain individuals involved in the operation of licensed fuel reprocessing plants, in the licensed use, processing, or storage of certain quantities of special nuclear materials, and in the transportation by the private sector of certain quantities of special nuclear material, to receive authorization from the Ccmmission for access to or control over special nuclear material.
Nuclear reactors licensed pursuant to 10 CFR Part 50* and facilities possessing only irradiated special nuclear material subject to the exemption of S 73.6(b) are not covered by these amendments.
At this time, the Ccmmission is still con-sidering whether these requirements should be applied to power reactor facilities.
Additionally, ncn power reactors and storage of fuel incidene thereto, have been excluced from the requirements of these amendments x
Except for the Fort St. Vrain facility.
10 9 5,,,,
^J 2
Enclosure "B"
pending c.1pletion of a separate ongoing review of total safeguards
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n requirements ~ adequacy at such facilities.
When that assessment is com.-
plete, consideration of access authorization requirements will be included in the evaluation of overall safeguards. upgrading which may be considered necessary for these facilities.
Finally, facilities possessing formula, quantities of special nuclear material only in the form of irradiated special nuclear material subject to the cxemption of 6 73.6(b) are also excluded from these requirements as the Commission concludes that the risk of theft or diversion of such material is minimal.
Thi. is con-sistent with other safeguards requirements for irradiated special nuclear material.
These regulations utilize a personnel security program as a measure to protect against those employed in the affected nuclear activities who might conspire to steal or divert special nuclear material or conduct sabotage which would endanger the public by exposure to radiation.
Of course, a clearance program itself d es not entirely solve the problem of the " insider," but, in the opinion of the Commission, experience has shcen that such programs do substantially reduce the risk.
- Moreover, the proposed program is one of several elements in the Commission's over-all safeguards program which together protect against threats, both internal and external.
Two levels of special nuclear material access authorization are estab-lisned.
The higher level, NRC-U, is based upon a full-field background investigatico and will apply to (i) all individuals who require unescorted access to special nuclear material or within vital areas, (ii) those jobs in which an individual alone or in conspiracy with another individual 3
encicsure B
O
who does not possess an NRC5 special nuclear material access authoriza-tz. -
tion could act to steal or divert special nuclear m.iterial or to commit
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sabotage, and (iii). driver [of motor vehicles and pilots of aircraft transporting certain quantities of special nuclear material and those who escort road, rail, air or sea shipments of special nuclear material.
The lower level, NRC-R, is based upon a National Agenry Check and will apply to all individuals who require unescorted access to protected areas and who are not required to possess an NRC-U special nuclear material access authorization.
An implementation schedule has been established to account for changed estimates of the time required to process access authorization applications (180 days for an NRC "U" and 150 days for an NRC "R") and for the initial flow of applications.
For jobs not requiring an amended security plan, affected individuals must.have the required access authorization within 365 days of the effective date of the amend-ments.
All others must have authorization 365 days after having 'he amended security plan approved designating those jobs which require access authorization.
Excepted from the 365 day implementation in all cases are those who initially apply but have not received notificatian due to Commission processing time.
Both the National Agenc.v Check and the full-field background investi-gation are conducted by the Office of Personnel Management.
The National Agency Check consists of a check of files of the FBI (fingerprint and central files), Office of Personnel Management (Security-Investigative index), and a check of military records and records of cther government agencies, as appropriate.
The full-field background investigation con-sists of interviews of references, conducted by invest.igative agents of the Office of Personnel Management, in addition to the records check.
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4 Enclosure "B"
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Sources of information developed in the course of the investigation are
, a.a...
also interviewed.
The full-field background investigation conducted by the Office of Personne1 Management generally covers the 5 year period of
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the individual's adult life prior to the. investigatio:n.
Licensees and license applicants wi.11 be required to amend their security plans by identifying and describing jobs at their facilities which require authorization.
Affected i.ndividuals will be required to obtain authorization according to the schedules set forth in the proposed rule.
Individuals who are newly hired or who change jobs where the new job will require a material access authorization must obtain an authoriza-tion before beginning the job.
Authorization will be updated every five years.
The establishment of a material access authorization program in the licensed nuclear industry will affect individuals who are not employed by any licensee or contractor of the Commission as well as licensee employees.
It is the Connission's intent to minimize both the impact on the rights of privacy and association of individuals affected, and the number of individuals affected, while,providing an effective measure of protection against those who would seek employment with, or use their position in, the nuclear industry for purposes of theft or sabotage.
In preparing these regulations, among the matters considered were the scope of investigations (e.g., whetner a full-field background investigation should be required for all indivicuals), which job functions should require material access authorization (e.g., require authorization only for " key" positions or adopt a graded system with level of clearance determined by job), whether psychological assessment should be required, and the relation o
e rp ed program to current NRC and 00E personnel sec ri pr grams.
5 Enclosure "B"
The Commission also considered the question of wheber new criteria should be developed against which a decision for auth.
.t. ion would be g_ y m.
__,. m made.
In its consideration,' the Cominission has had beture it both public comments, the record developed in an informal hearing, and the recommenda-tions of the Hearing Board.
The present NRC security clearance criteria (10 CFF, Part 10) were developed for access to classified information and, as such, not alI criteria may be equally significant for questions of access
- to special nuclear material, and some may not be perceived as relevant in specific cases.
Also, there may be cases in which additional criteria, not now i7cluded in 10 CFR Part 10, would be more to the point.
- However, these criteria do correspond to the Federal Government's general approach to personnel security, and specifically, they are presently used for DOE access authorization programs.
Furthermore, the criteria are in the nature of guidelines to be used in a decision process characterized by common sense judgments, rather than quantitative criteria.
- Moreover, the Commission is reluctant to devise a new set of criteria without evidence that such new criteria would significantly improve upon those which presently exist.
The Commission notes, however, that the Depart-ment of Energy is currently reviewing the criteria applicable to access t'o Restricted Data and material and will review Commission criteria in 10 CFR Part 10 in light of any revision made by the Department,f Energy in 10 CFR Part 710.
Hence, in light of the above, the Commission is relying on the considerable expertise residing in the broad experience of the Feceral Government in the area of personnel security programs by proposing the use of the criteria ontained in 10 CFR Part 10 as guide-lines in deciding questions of access to or control over special nuclear ib9502i P00l1 OREM e
enclos=re e-
. Pursuant to the Atomic Energy Act of 1954, as amended, by the Energy Reorganization Act ob.lE74, anE section 553 of title 5 of the United States
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Code, notice is hereby given that a new 10 CFR Chapter 1, Part 11, and the following conforming amendments to 10 CFR Chapter 1,.earts 50 anc' 70 are published as a document subject to codification.
1.
A new Part 11 is added to read as follows:
Part 11 - CRITERIA AND PROCEDURES FOR DETERMININC ELIGIBILITY FOR ACCESS TO OR CONTROL OVER SPECIAL NUCLEAR MATERIAL GENERAL PROVISIONS 11.1 Purpose 11.3 Scope 11.5 Policy 11.7 Definitions REQUIREMENTS FOR SPECIAL NUCLEAR MATERIAL ACCESS AUTHORIZATION 11.11 Requirements at fixed sites 11.13 Requirements in transportation 11.15 Application for special nuclear material access authorization CRITERIA FOR DETERMINING ELIGIBILITY FOR SPECIAL NUCLEAR MATERIAL ACCESS AUTHORIZATION 11.21 Application of the criteria AUTHORITY:
Section 7, Pub. L.93-377, 88 Stat. 475; Section 1611, Pub. L.83-703, 68 Stat. 948 (42 U.S.C. 2201).
GENERAL PROVISIONS s 11.1 Purpose This part establishes the requirements for special nuclear material access authorization, and the criteria and procedures for resolving questions concerning the eligibility of individuals to receive special nuclear material access authorization for conduct of certain activities,
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lic.ensed or otherwise, which involve access to or control over special nuclea material.
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S 11.3 Scope
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The requirements, criteria, and procedures of this part appiy to the establishment of and eligibility for special nuclear materir 14 cess authorization for employees, contractors, consultants of, and applicants for employment with, licensees or. contractors of the Nuclear Repulatory Commission where such employment, contract, service, or consu t' cation involves any job falling within the criteria of SS 11.11 or 11.13 of this ciapter.
The requirements, criteria, and procedures of this part are in addi-tion to and not in lieu of any requirements, criteria, or procedures for access te or control over classified special nuclear material.
S 11.5 Policy It is the policy of the Nuclear Regulatory Commission to carry out its authority to establish and administer a personnel security program in the interests of the common defense and security for the purpose of safeguarding special nuclear material and preventing sabotage which would endanger the public by exposure to radiation in a manner consistent with traditional American concepts of justice.
To this end, the Commission has established criteria for determining eligibility for special nuclear material access authorization and will afforc affected individua.s the c;ocrtunity for acainistrative review of questions concerning. heir eligibility for special nuclear material access authorization, 1095 nn/m ER Diluu 8
Enclosure "C"
5 11.7 Definitions a-_..--
As used in this part:y F (a) Terms defined in Parts 10, 50, 70, and 73 of this. chapter have the same meaning when used in this part.
(b)
"Special r.uclear material access authorization" means an adminis-trative determination that an individual (including a contractor or con-sultant) who is employed by or ir an applicant for employment with an affected Commission contractor, licensee of the Commission, or contractor of a licensee of the Commission may work at a job which affords access to or control over special nuclear material and that permitting the indi-vidual to work at that job would not be inimical to the common defense and security.
(c)
"NRC 'U' special nuclear material access authorization" means an administrative determination based upon a national agency check and a full-field backgrouM investigation conducted by the Office of Personnel Management that an individual in the course of employment is eligible to work at a job falling within the criteria of SS 11.11(a)(1.) or 11.13.
(d)
"NRC 'R' special nuclear material access authorization" means an administrative determination based upon a national agency t.eck that an individual in the course of employment is eligible to work at a job falling within the criterion of S 11.11(a)(2).
REQUIREMENTS FOR SPECIAL NUCLEAR MATERIAL ACCESS AUTHORIZATICN 9 11.11 Requirements at fixed sites (a)
Each licensee who after (90 da.vs following publication in final form) uses, processes, or stores fornula quantities of special nuclear
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9 Enclosure "B"
material (as defined in Part 73) subject to the physical protection require-ments of SS 73.50 ar$d f3.60 of Part 73 of this chapter shall identify at his facility or plant (excluding however all non power reactor facilities and storage of fuel incident thereto and facilities and plants in which the licensee possesses or uses only irradiated special nuclear material.
subject t-the exemption of $73.6(b) of part 73) and describe to the Commission, by amendment to his security pian:
(1) All jobs in which an individual could steal or divert special nuclear material, or commit sabotage which would endanger the public by exposure to radiation, by working alone or i n cooperation with an individual who does not possess an NRC-U special nu. clear matericl access authorization, or by directing or coercing any individual to assist in the theft, diversion, or sabotage.
Such jobs include but are not limited to:
(i) All positions in the licensee's security force, (ii) Management positions with the authority to:
(A)
Direct the actions of members. of the security force or alter security procedures, or (B)
Direct rout'ne movements of special nuclear material, or (C)
Direct the routine status of vital equipment.
(iii) All jcbs which require unescorted access within onsite alarm stations.
(iv)
All jobs which require unescorted access
- to special nuclear material or within vital areas
}.))]
This does not alter the requirement for methods to cbserve individua.s within material access areas as stated in S ~73.50(a)(7) of this char,ter.
10 Enclosure "B"
(2) All jobs which require unescorted access within protected
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areas and which do not fall within the criterion of paragraph (a)(1) of this section1
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(b)(1) After (365 days following Commission approval of the r.cnded security plan submitted it: accordance with paragraph (a) of this section) no individual. may be permitted to work at any job determined by the Commis-sion to fall within the criterion of paragraph (a)(1) of this section without an NRC-Il special nuclear material access authorization, and no individual may be permitted unescorted access to any protected area at any site subject to this part without either an NRC-U or NRC-R special nuclear material access authorization.
Individuals are excepted who were employed on the effective date of these amendments, who submitted complete applications in accordance with 511.15 of this part, and who have not been disapproved and have not yet received notification of approved access authorization from the Commission.
5 11.13 Requirements in transportation (a) All individuals who after (365 days following publication in final form) transport, arrange for transport, drive motor vehicles in road shipments of special nuclear material, pilot aircraft in air shipments of special nuclear material, act as monitors at transfer points, or escort road, rail, sea, or air shipments of special nuclear material subject to the a::propriate physical protection requirements of SS 73.30, 73.31, 73.35 or 73.36 of this chapter shall have NRC-U special nuclear material access authorization.
Individuals are excepted who.ere empicyed on the ef fective date of these amendments, who submitted complete applications in accordance
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with 511.15 of this part, and who have not been disapproved and have not 1095 a,9 x
11 Encicsure "B"
yet received notification of approved access authorization from the Commission.
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3-(b)
Licensees who (after 365 da~ys after publication in final form) transport or who deliver to a carrier fo.r transport special nuclear material subject to the physical protection requirements of SS 73.30, 73.31, 73.35 or 73.36 of this chapter shall confirm and record prior to shipment the name and special nuclear material access authorization number of all' drivers, escorts, and monitors assigned to the shipment.
Individuals are excepted who were employed on the effective date of these amendments, who submitted complete applications in accordance with $11.15 of this part, and who have not been disapproved and have not yet received notification of approved access authorization from the Commission.
9 11.15 Application for Special Nuclear Material Access Authorization (a)
Application for special nuclear material access authorization, renewal, or change in level shall be filed by the employer on behalf of the applicant with the Director, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555.* Applications for affected individuals employed on the effective.date of these amendments shall be submitted within 60 days of the effective date or within 60 days of notification of Commission approval of the amended security plan.
(b) Applications for special nuclear material access authorization shall be made on forms supplied by the Commission including:
(1) A Personnel Security Questionnaire (P5Q) completed by the individual.
R Process times for special nuclear material access authorizations can be expected to be about 180 days for NRC-U and 120 days for NRC-R.
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j s 'J 12 Enclosure "B"
(2) Two standard fingerprint cards with the individual's finger-prints (fingerprints mEy"be UEen by a local police authority).
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(3) Authority to release t'nformation.
(4)
Security acknowledgment form.
(5) Other related forms where specified in accompanying NRC instructions.
(6) A statement by the employer, prospective employer, or con-tractor, identifying the job to be assigned to or assumed by the individual and the level of authorization needed, justified by appro-priate reference to the licensee's security plan.
(c)
Special nuclear material access authorization shall expire 5 years following the date of issue.
If continued special nuclear material access authorization is required, an application for renewal shall be submitted at least 120 days prior to expiration date.
Failure to make a timely application will result in expiration of special nuclear material access authorization.
Special nue' ear material access authorizatiori for which a timely application for renewal has been made may be continued beyond the expiration date pending final action on the application.
An application for renewal will coniist of the following:
(1) A Personnel Sect ity Questionnaire, completed by the applicant.
(2)
Two standard fingerprint cards with the individual's fingerprints.
(3)
Authority to release information.
(4) Other related forms where specified in accompanying NRC instructions.
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(5)
A statement by the employer or contractor that at the time of application for re$a'l the ir$dividual's assigned or assumed job
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requires the level of special nuclear material access authorizaton which he or she holds, justified by appropriate reference to the licensee's security plan. -
(d)
If at any time, due to new ' assignment or assumption of duties, a change in special nuclear material access authorization level from NRC "R" to "U" is required, the individual shall apply for a change of level of special nuclear material access authorization.
Such an application shall include a description of the new duties to be assigned or assumad, justified by appropriate reference to the licensee's security plan.
(e)
Each application for special nuclear material access authoriza-tion, renewal, or enange in level shall be accompanied by the employer's remittance according to the following schedule:
(1) new application, "U"'....................
5950 (2) new application, "R" S 30 (3) renewal "U" or "R" S 30 (4) change of level "R"
to "U" 5950 (5) convert existing NRC or 00E "Q" or "Q(X)" to U or R........................
No charge (6) convert existing NRC or 00E '"L" or "L(X)" to U...........................
5950 (7) ccnvert existing NRC or 00E "Q". "Q(X)",
" L", o r " L ( X ) " to R.....................
No charge
.o 1095 1 2 14 Enclosure "B"
CRITERIA FOR DETERMINING ELIGIBILITY FOR ACCESS TO, OR CONTROL
[OVER, SPECIAL NUCLEAR MATERIAL 5 11.21 Application of the criteria
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(a)
The decision to grant or deny "special nuclear material access.
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authorization is a comprehensive, common-sense judgment, made after con-sideration of all the relevant information, favorable or unfavorable, that to grant or deny special nuclear material access authorization is or is not inimical to the common defense and security and is or is not ciearly consistent with the national interest.
(b) To assist in making these determinations, on the basis of all the information in a particular case, there are set forth in S 10.11 of this chapter a number of specific types of derogatory information.
These criteria are not exhaustive but contain ti.e principal types of derogatory information which in the opinion of the Commission create a question as to the incividual's eligibility for special nuclear c'aterial access authorization.
These criteria are subject to continui'ng review and may se revised from tise to time as experit.i1 and circumstances may make desirable.
(c) When the reports of investigation of an individual contain information reasonably falling within one or more of the classes of derogatory information listed in S 10.11, the application of the criteria shall be made in light of and with specific ragard to whether the existence of such information creates a question as to the indi-vidual's eligibility for special nuclear material access authorization by raising a resonable belief that the individual would use his or her
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15 Enclosure "B"
access to or control over special nuclear material for theft or diver-sion of special nuclear material, or sabotaie which would endanger the public by exposure to radiation.
The Director, Division of Security may authorize the granting of special nuclear material access authoriza-
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tion on the basis of the information in.the case or may authorize the conduct of an interview with the irdividual and, on tha basis of such interview and such other investigation as he deems appropriate, may authorize the granting of special nuclear material access authorization.
Otherwise, a question concerning the eligibility of an individual for special nuclear material access authorization shall be resolved in accordance with the procedures set forth in SS 10.20 through 10.37 of this chapter.
(d)
In resolving a question concerning the eligibility or continued eligibility of an individual for special nuclear material acc2ss authori-zation by action of the Personnel Security Board," the following principle shall be applied by the Board:
Where there are grounds sufficient to establish a reasonable belief as to the truth of the information regarded as suastantially derogatory and when the existence of such information raisen a reasonable belief that the individual may use his access to or contrcl over special ruclear material for theft or diversion of special nuclear material or sabotage which would endanger the public by exposure to radiation, this shall be the basis for a recommendation for denying or revoking special nuclear material access authorization if not satisfac-torily rebutted by the individual or shewn to be mitigated by circumstance.
K The function of the Personnel Security Board is described in Part 10 of this chapter.
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16 Enclosure "S"
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2.
Paragraph (c) of 5 50.34 of Part 50 of this chapter is amended to read a's follows:9 {~C
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5 50.34 Content of applications:
technical information A
R R
A 2
(c)
Physical security plan.
Each application for a license to operate a production or utilization facility shall include a physical security plan.
The plan shall consist of two parts.
Part I shall address vital equipment, vital areas, and isolation zones, and shall demonstrate how the applicant plans to comply with the requirements of Parts ;3 and 11 of this chapter, including the identification and dascription of jobs as required by 511.11(a) of Part 11, at the proposed facility, if a,licable.4 Part II shall list tests, inspections, and other means to be used to de. mon-strate compliance with such requirements, if applicab7e.
3.
Paragraph (h) of 5 70.22 of Part 70 of this chapter is amended to read as follows:
s 70.22 Contents of applications.
x x
x
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(h)
Each. application for a license to possess or use at any site or contiguous sites subject to control by the licensee uranium-235 (con-tained in uranium enriched to 20 percent or more in the uranium-235 isotope), uranium-233, or plutonium alone or in any combination in a quantity of 5,000 grams or more computed by the formula, gras =(grams contained U-235)+2.5 (grams U-233+ grams plutonium), other than a license for possession or use of such material in the operation of a nuclear reactor licensed pursuant to Part 50 of this chapter, shall include a physical security plan, consisting of two parts.
Part. I shall addr,ess vital equipment, vital areas, and isolation zones, and shall d..onstrate
}G 1J 17 Enclosure "B"
l how the applicant plans to meet the physical protectior requirements of Part 73 of this chapter 'in l'he~ conduct of the activity to be licensed including the identification and description of jobs as required by
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$ 11.11(a) of this chapter.
Part II shall list tests, inspections, and other means to demonstrate compliance with such requirements.
(Authority:
Section 7, Pub. L.93-377, 88 Stat. 475; Section 161i, Pub.
L.83-703, 68 Stat. 948 (42 U.S.C. 2201))
Dated at Washington, D.C. this day of For the Nuclear Regulatory Commission.
Secretary of the Commission 1 0 9 5
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18 Encl osure "B"