ML19305A279
| ML19305A279 | |
| Person / Time | |
|---|---|
| Issue date: | 02/09/1979 |
| From: | Ahearne J, Bradford P, Gilinsky V, Hendrie J NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 7903120487 | |
| Download: ML19305A279 (52) | |
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. DIScuIMER This is an unofficial transcript of a meeting of the United States Nuclear Ragulatory Commission held on 9 Feb 1arv lo7o in the Commission's officas at 1717 H Street, ii. W., wasnington, D. C.
The meeting was opan to pualic attendance and observation.
tnis transcr1p,e has not been reviewed, corrected, or editad, and it may contain inaccuracies.
. The transcript is intended solely for general informa'tfonal purposes.
As provided by 10 CFR 9.103, it is not part of the fornal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final detarminations or beliefs.
No pleading or othar paper may be filed with the Commission in any proceeding as the result of or addressad to any s.tatement or argument contained herein, except as the Cc==ission may authorize.
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
I PUBLIC MEETING 4
BRIEFING ON NRC LEGISLATIVE PROPOSALS 5
(continuation) 6 Room 1130 7
1717 H Street, N. W.
Washington, D.C.
8 Friday, 9 February 1979 9
The Commission met, pursuant to notice, at 1:30 p.m.
10 1 BEFORE:
11 DR. JOSEPH M. HENDRIE, Chairman 12 VICTOR GILINSKY, Commissioner 13 PETER A. BRADFORD, Commissioner 14 JOHN F. AHEARNE, Commissioner 15 PRESENT':
16 Messrs. Mallory, Parler, and Stoiber.
17 13 I
19 20 21 22 23 24.
l 1
Acs Federal Reporters, Irte. {
25 l
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J 3
748.01.1 pv 1
AFTERN00ii 5ESSION-2 (1855 p.m.)
3 CHAIRMAN HENDRIE:
Well, I guess we had be.tter crank 4
up and go ahead, and Vic will attempt -- and John, why don't 5:
you -- or' have Bob s.ee if Dick was going to send us down a note
~
6 or something..He.was going to send me an indication of how he 7
felt about these omnibus -- the other omnibus.
I offered to 8
just vote him as I thought -- as I knew he would want to vote 9
but 10 (Laughter.)
.11 CHAIRMAN HENDRIE:
-- He said he'd be lad to 12 indicate his feelings.
13 Okay, we meet this af ternoon to continue a d 14 discussion of legislative proposals, and, in particular, I am 15 trying to work through the oth'er items in the omnibus 16 legislation package that we have.
The se are -- we ll, let's 17 see, I haven't actually looked to see what the order is.
18 VR. STOISER:
Mr. Chairman, the next -- tne next 19 part of the package is --
20 CHAIRMAN HENDRIE:
The next-one is security.
21 MR. STOISER:
-- Security and protection saf eguards.
22 CHAIRMAN HENDRIE:
Protection safeguards 23 information, and~then after that 24 MR. STOISER:
The quorum l egisla t io n.
25 CHAIRMAN HENDRIE:
-- The quorum legislation.
- Then,
B 4
1748.01.2 pv i
finally, the I&E statute-making. IAE statutory.
2 I hope not to keep' us very long this af ternoon.
3 COMMISSIONER GILINSKY:
I apologize f or coming late.
4 CHAIRMAN HENDRIE:
If you -- you had only taking 30 seconds,. and you'd nave been here ear'ly, so you haven't missed.
'6 a thing.
7 COMMISSIONER GILINSKY:
I see John shaking his head 3
over there.
9 (Laughter.)
10 MR. STOIBER:
I should mention one development, and
.11 that is we have received a Dingle request, one of the tvolcal 12
" Dingle-grams," of acproximately 37 questions which he vould 13 like responded to before you aopear for your authorization 14 hearings on.the 28th of February.
15 And his question No'. 3 asks whether the Commission *s 16 recommendations regarding the need for legislation, t oo, an d 17 then the four items he lists here are the very self-same items 18 listed in this omnibus package.
19 So, by the 23rd, which is the time, the date on 20 which he would like responses on his questions, he would also 21 like to your views on -- on these four items.
So, that 22 provides --
23 CHAIRMAN HENDRIE:
Goo d.
24 MR. STOISER:
-- Some incentive t o --
25 CHAIRMAN HENDRIE:
dell, it's -- you know, we're
5 748.01.3 pv 1
going to see Mr. Dingle on the 27th and 28th. I belie ve, and.
2 you know, we've been saying if we were go ing to get croposals 3
for legislation up by March I, first week in March was the time 4
to make it by so there'd be time.
So, it -- it's not 5
inconsistent.
6
. Cited the four-items, huh?
Dear me. ' do you suppose 7
it's --
8 COMMISSION GILINSKY:
Cla irvo ya n t.
9 CHAIRMAN HENDRIE:. -- Conceivabie there could have 10 been -- well, I -- I gue.ss I -- the only conclusion I would
.11 draw is that great minds work in the same path --
12 MR. BICKMIT:
Or conspire 13 CHAIRMAN HENORIE:
-- Paths.
14 MR. BICKdIT:
-- Or conspire together.
15 CHAIRMAN HENDRIE:
"Or conspire together."
16
( La ughte r. )
17 CHAIRMAN HENDRIE:
Th e n -- a ll righ t, now, the --
18 the other comment I was going to make about expeditious 19 treatment of these items is if you will all agree with me 20 without a great deal of argument. 'vhy. I am sure we can move 21 through the af ternoon, you know, with no -- no fuss or muss.
22 Let's s.ee, to recap:
The civil penalties 23 proposition awaits some language which the counsel's office 24 will -- will circulate to see how people take to it.
25 The next iten is the -- is this ma tter of atte pting
6 748.01.4 pv i
to provide some protection for safeguards internation, both 2
with regard to material, protection of material and protection 3
of facilities and the transportation step and -- and so on.
4 The Commission considered 3 -- an expanded version
.5 of what is before you last year.
The thing which is -- was in 6
that package and is not in this was a proposal that the section 7
161(1) of the Atomic Energy Act be expanded to grant the.
8 Commission.suthority to require a clear.ance progran for workers 9
at nuclear f acilities on the -- on a health-and-safety basis.
10 The present basis is one of protecting the -- protecting
.11 special nuclear materials and so on, as accroariate.
12 That part of the package last year -- and it was a 13 package sent up to the Congress -- seemed to be and was 14 recognized in the beginning to be the most -- the iten in the 15 package most like to lead to contention because the Congress is 16 properly concerned about grant.ing agencies broad powers to 17 require investigation of citizens and clearance systems and so 13 on.
There's, I think, little question that clearance systems
~
19 of that type do constitute some degree of' infringement on 20 personal privacy and citizenship rights, and the Congress is, I 21 think, aopropriately concerned that -- that those things, that 22 broad powers only be granted where absolutely necessary and so 23 on.
24 So, late in the session and on the basis of sort of 25 evaluation of -- of whe re -- in part, on the evaluation of
y 748.01.5 pv i
where the rulemaking hearing on the merits of clearances and 2
how -- how that night fit in our safetguards scheme was going 3
and was likely to come out. I suggested and we went forward 4
with the. proposition that said, well, the clearance matter.
5
. sort of the contentious part of this, more contentious, at any 6
rate, we don't yet have.'and won't have for some time the 7
results of the rulemaking hearing, and perhaos it's premature 8
to be charging off and asking for statutory authorities in 9
advance of any clear indication from the proceeding that we 10 have in motion that we might want to do that or that it would
.11 be the best thing to do.
12 And so, we removed the 161(1) piece f rom the package 13 and proposed to the -- the Congre ss the thing which is now 14 before you, which is the section 147 thing which protects 15 Information but doesn't require clearances.
16 It went up very late in the session, and I think --
17 I think all the committees just found it 18 MR. STOISER:
Too late.
19 CHAIRMAN HENDRIE:
-- Just too late to crank up, you 20 know.
You woulnd't -- th e y would want to have a hearing to 21 provide background on the thing, give people a chance to 22 comment on it, and it was just too late to deal with it.
23 So, I would urge us to send it un again this year 24 now, in a timely f ashion.
The basic proposition is as follows:
25 For a good part of the sort of the security plan
8 748.01.6 pv 1
information that the agency has that we think ought to be 2
protected, the protection is now provided by staffing it 3
company-proprietary.
And.it's -- it's -- it's b een expre ssed 4
to me as an opinion of various of the agency's legal staff 5'
that, given a really hard-running challenge. that could very 6
well not stand and that we might find ourselves at some point 7
here with a court decision which would, in effect, make 3
available -- put us in a place where wa'd have to put the PDR.
9 e ssent ially, the details of security plans for 70 reactor 10 plants and various -- and -- and maybe a few fuel cycle
.11 f acilities s~s well, a proposition '<nich I found -- find 12 unacceptable.
13 So, the scheme here is to provide some language in 14 the Atonic Energy Act which says that the NRC, upon making an 15 appropriate finding, can -- can say that detalls of security 16 plans are not to be released and that provides civil penalties, 17 sort of enforcement incentive.
It does not require security 18 clearances of anybody, and it does -- and, most importantly, 19 you see, it does not class these plans as national security 20 information and hence draw in that whole paraphenalia of 21 clearances and so on.
It simply says that for health and 22 saf ety reasons there -- it's prudent that the details of these 23 plans be protected and not made public and the Commission is to 24 do that, and, furthermore, other parties who have access, 25 proper access, are not to make them available to unauthorized
9 748.01.7 pv i
persons.
2 COMMISSIONER GILINSKY:
Well, let's -- is it just 3
health and safety reasons?
I don't.~ think common defense and 4
security doesn't nece ssarily get us into the national security 5
classif.ication busine ss t does it?
6 CHAIRMAN HENDRIE:
dell, in this -- in this, the 7
language proposed here, it seemed wise and appropriate to build 8
upon the national security language.
So, the lan uage here. I 9
bel ie ve, in -- in the critical instances refers to -- to both 10 9 rounds.
.11 MR. STOISER:
Yes, it does.
But both --
12 CHAIRMAN HENDRIE:
Yeah.
But the health and safety 13 is an important one to enunciate. because when we talk about 14 that we don't want -- that we want to make it very difficult fr 15 for anybody to sabotage a nuclear plant, we're talking about a 16 health-and-saf ety question, not a -- not about, you know, the 17 security of the United States, doesn't stand in the breach in 18 that event.
And that's not an enunciation which is now 19 anywhe re in the -- in the statute.
20 COMMISSIONER GILINSKY:
h ell. it seems to me the 21 most important thing this does, as I understand it, is -- is to 22 protect informatico in the hands of the government from 23 disclosure under the Freedom of Information Act.
24 CHAIRMAN HENDRIE:
It does that specifically by 25 virtue of that exemption under FOIA that says that any piece of
10 1748.01.8 pv i
information you might request which.is specifically protected 2
by some other statute is protected under this one.
3 COMMISSIONER GILINSKY Right.
4 CHAIRMAN HENDRIE:
But it goes considerably beyond 5
that, and - and.-
6 COMMISSIONER GILINSKY:
'1 ell, the rest of it --
7 CHAIRMAN HENDRIE:
It protects the information in 8
who -- whoever's hands it may be.
And that's very 1,cortant, 9
because there are other bodies than -- there are other ways 10 besides the Freedom of Information Act under which access to 11 these things is sought:
State proceedings before utility 12 commissions is an example, where it's arisen a couple of times.
13 CokNISSINER GILINSKY:
Okay.
I -- I think it's 14 useful to tidy that up, but Howard has always told us that we 15 have ample authority to issue regulations on that subject.
But 16 certainly, it's useful to clarify that.
17 CHAIRMAN HENDRIE:
Nell, I -- yeah, I must say IS that's one of those areas where.I feel a great deal more 19 confortable with some specific language that I can understand, 20 like this, in the statute, rather than --
21 COMMISSIONER GILINSKY:
I would like to ask --
22 MR. PARLER:
I think that it is clear, Commissioner, 23 that under our regulatory authority we can deal with 24 information that is in the hands of our licensees, and perhaps thro gh our licensees conditions in the license deal with u
25
11
.1,01.9 pv i
information that is in the hands of others, especially others 2
that have some relationship with the licensees, such as their v ndors and suppliers.
3 e
4 But I also think it is clear -- and Howard and I 5
have discussed this -- that it. would help considerably to have
~
6 a legislative base to provide assurance that information which 7
is not in our hands of our licensees is protected from 8
unauthorized disclosure.
9 COMMISSIONER GILINKSY:
d all, I think it's useful to 10 clarify the point.
The major deficiency, though, in. our s ystem 11 is the -- the potential vulnerability to the Freedom of 12 Information Act 13 MR. STOIBER:
Yeah.
14 COMMISSIONER GILINSKY:
-- Information in our hands 15 which this would except.
16 I have a question about paragraph 2 here --
17 COMMISSIONER AHEARNE:
Paragrap'h 2 --
18 CHAIRMAN HENDRIE:
It got -- is t he r e a pa g e --
19 what's the page number, Vic?
20 COMMISSIONER GILINSKY:
dell. I am looking at 21 enclosure 3, which --
22 CHAIRMAN HENDRIE:
Okay.
23 COMMI SSIONER GILINSKY:
-- Unless somebody wants to 24 bring up something before that.
25 CHAIRMAN HENDRIE:
dell, why don't we lunge into it.
12
.748.01.10 pv i
COMMISSIONER GILINSKY:
dell, the first part seems 2
pre tty straightforward.
We're talking ab_out unauthorized 3
disclosure of control and accounting procedures, et cetera, 4
security measures, including security planst elder materials
_5 and. security measures, including security plans for f acilities.
6
~And then paragraph 2 gets into studies. reports, and 7
analyses which concern the safeguarding of nuclear materials.
8 Should that have some cualification, such as whose 9
disclosure would do something or other?
That's pre tty broadly 10 worded there.
Obviously, this is just giving the Commission
.11 the authority, whicn it doesn't necessarily 12 CHAIRMAN HENDRIE:
Yeah.
13 COMMISSIONER GILINSKY:
-- Need to exercise.
14 CHAIRMAN HENDRIE:
Yeah.
15 C01GISSIONER GILINSKY:
Nevertheless, it would neem 16 to me to be useful to -- to indicate that
-~
17 COMMISSIONER AHEARNE:
Some qualification on -
18 COMMISSIONER GILINSKY:
That's right.
It concerns 19 the safeguarding of nuclear material, whose disclosure wot id -
20 CHAIRMAN HENDRIE Yeah.
One --
21 COMMISSIONER GILINSKY:
-- Jeopardize something or 22 o th e r.
23 CHAIRMAN HENDRIE:
-- One could write a balanced --
24 write that in.
I would have no objection to doing it.
25 I think what it would do would sort of be to receat
13
.748.01.11 pv i
the words which are a few lines down, where it requires a 2
determination before you can institute this f or a --
3 C0K4ISSIONER GILINSKY:
Right.
4 CHAIRMAN HENDRIE:
-.For a particular pie ce, or 5
require a determination by the Commission that the unauthorized 6
' disclosure of ~such' information could have a significant adverse 7
e ff ect, et cetera, et cetera, or the -- on the public health 8
and safety and common defense by f acilitating diversion, 9
sabotage, that --
10 COMMISSIONER GILINSKY Yeah.
.11 CHAIRMAN HENDRIE:
And you know, if you want it for 12
-- you know, in the other provision it says " protect this kind 13 of inforsation which is important from the standpoint of theft 14 or diversion or wha'tever, and what you sort of may be f eeling a 15 need for is a sort of symmetrical "what is it we're protecting 16 against under paragraph 2,"
and you could -- you could just say 17 "which concern the safeguarding of nuclear materials or 18 facilities against thef t, diversion, or sabotage, and the.
19 undisclosed -- the unauthorized disclosure of.which could have 20 a significant adverse eff ect on the health and safety of the 21 public or the common defense and security."
22 COMMISSIONER GILINKSY:
Yeah.
23 CHAIRMAN HENDRIE:
I wouldn't change the rest.
? --
24 I would just -- I would just take the repetition --
25 COMMISSIONER GILINSKY:
Yeah.
14 748.01.12 pv 1
CHAIRMAN HENDRIE:
-- In order that the following 2
paragraph flow completely.
But I -- I haven't felt the need 3
.before that, just because that language doas turn up in the 4
requirement for the de terminatio n. down there about four or 5
five lines.below, and I don't -- but I. don't f eel strongly one 6
way or another.
But that is -- that is clearly'the thrust.
7 And I should note, John, that this one went in to 8
cover generic studies, you know. Report No. 52, how to sabotage 9
a PWR, you know, which is not plant-specific.
10 COMi4ISSIONER GILINSKY:
Sandia plans.
.11 CHAIRMAN HEUDRIE:
Yes.
12 COMMISSIONER GILINSKY s Protect us from Sandia.
13 (Laughter.)
14 MR. STOISER:
Or another Westinghouse.
15 CHAIRMAN HENDRIE:
Well, but we need the studies so 16 we can, you know --
17 COMMISSIONER GILINSKY:
dell, I think it would be 18 useful to have it right in that sentence so that if it's ever 19 quoted it would have to get quoted with that phrase in it.
20 CHAIRMAN HENDRIE:
Okay.
Yeah.
21 MR. PARLER:
The Chairman covered what I was oing 22 to --
23 CHAIRMAN HENDRIE:
Can you draf t something along the 24 lines that I outlined?
25 MR. STOIBER:
Yeah, all we would do is move the last
15
- 748.01.13 pv i
three lines of the page and then the first line, that language, 2
into that first sentence.
3 COMMISSIONER AHEARNE:
Well, you wouldn't want to 4
move it?
5 MR. PARLERs Yes.
'6 COMNISSIONER AHEARNE:
No, no, I mean, you'd leave 7
it'there but just repeat it.
8 CHAIRMAN HENDRIE:
Yeah, just repeat it.up there.
9 Yeah.
Yeah, I would -- and "which concern the saf eguarding of 10 nuclear materials or f ac L11 ties and the undisclosed --
.Il unauthorized disclosure of which could have a significant 12 e ffect...by facilitating the" -- I guess it would go, and then 13 you'd just repeat it.
I have no -- no problem with that.
14 And, as you say, then if people want to quote 15 paragraph 2, you get the whole thing.
16 COMMISSIONER GILINSKY:
Yeah.
17 CHAIRMAN HENDRIE* Anyoody see any strong objection?
18 I -- I think we adopt that by acclamation.
19 COMMISSIONER BRADFORD:
Ch. yes.
20 (Laughter.)
21 CHAIRMAN HENDRIE:
Other comments?
22 COMMISSIONER AHEARNE:
I had a question.
I don't 23 see anyone.here maybe who can answer it.
But I wondered, wnat 24 is the congre ssional -- what is congressional reaction?
I 25 recogn ize it didn't have a chance to go through the process.
16 748.01.14 pv i
but there must -- there may have been some reaction.
2 CHAIRMAN HENDRIE:
Let me. summarize. and people can 3
add as they -- as they know of it.
4 In -- a little_ before Christmas 19.77 I went to the 5
oversight chairman with a proposal that I felt a need to cure 6
'what I f elt was - was -- could at any time become a severe 7
problem and suggested to them legislatlon of this kind, both in 8
the context of protecting information on a health and saf ety 9
basis and also then the second step, Lf cons ide red sopropriate.,
10 of -- of clearance authority on a health-and-saf ety basis, and, you know, made my arguments why -- summary arguments why I f elt 12 that was a good and reasonable thing to do.
13 And both -- at that time we hadn't begun a strong 14 Interactlon as yet with -- well, let's see, I am trying to 15 think whether I -- I talked to the interior subcommittee on the 16 House side and the Senate committee: I can't remember if I 17 talked to the --- to the Commerce subconmittee.
18 But at any rate, from the two -- two chairman that I 19 know I talked to, I recelved a views It sounds like a 20 reasonable propositions why don't you come up with a proposal 21 when~ you can get the Commission to act on it, and -- and, you 22 know, we'll give it a f air -- we'll give it a fair hearing up 23 here.
24 And so I was encouraged to come forward.
Then --
25
. then it turned out that, with one thing and another that
748.01.15 17 pv I
occurred, why, we weren't able to close on it as a Comntssion 2
and get. agreement on what the language -- until just rather 3
later than was appropriate.
4 COMMISSIONER GILINSKY:
Yeah.
The problem over here 5
has been that it's been confused with the question of national 6
security classification, which has at various time recommended.
7 I'might add that I recommlnded this approach in 1975 8
and didn't get anywhere with it.
There was a lot of enthusiasm 9
at that time for guarding the national s ec ur ity.
10 But my impre.ssion is that at least the congressional
.11 staffs were receptive to this.
12 COMMISSIONER AHEARNE:
A second -- it's more just a 13 comment.
After having, I thought, gradually begun to 14 understand the thing in the context of the export world the 15 difference between safeguards and physical security, as I began 16 to remember the words that flowed through this section. I began 17 to lose what I thought was my fragile grasup on that 18 distinction.
19 COMMISSIONER GILINSKY:
dell, you don't need it 20 here.
21 COMMISSIONER AHEARNE:
Well, except that there seem 22 to be some places where you can -- where you start out -- where 23 it starts-out talking about safetguards and then it turns into 24 that it's really talking about physical security.
25 CHAIRMAN HENDRIE:
Well let me --
18 1748.01.16 pv i
COMMISSIONER AHEARNEr Now, maybe you don't need the 2
distinction, but --
3 CHAIRMAN HENDRIE:
--- Le t me -- l e t m e s ay, Jchn,
4
..that in the context of this discussion of the proposed section 5
147, as in other torums that you will encounter, the word 6
" safeguards" is -used as an umbre.lla word that covers material 7
control and accounting and physical security and anything else 8
that goes into keeping the stuff out of unauthorized hands or 9
preventing sabotage or all manner of other things.
10 COMMISSIONER GILINSKY:
It's more or less synonymous
.l i with "protec' tion" in the way we use it.
12 CHAIRMAN HENDRIE:
But John is thinking about 13 safeguards in the context --
14 COMMISSIONER AHEARNE:
Well, It was only a comment.
i 15 It was --
16 CHAIRMAN HENDRIE:
Yeah.
17 COMMISSIONER GILINSKY:
Yeah.
18 COMMISSIONER.AHEARNE:
-- Just that I w a s -- i t 19 almost seems as though -
20 COMMISSIONER GILINSKY:
No, it's --
21 COMMISSIONER AHEAR.'lEs
-- When we talk in the 22 international arena, that's --
23 COMMISSIONER GILINSKY:
That's because the I AE A -- I 24 mean, " safeguards" in the international arena means what the 25 IAEA does.
Th e r e --
748.01.17 19 pv 1
CHAIRMAN HENDRIE:
I will tell you a good shorthand 2
to keep in mind and.one that I try to use.
In the -- when we 3
we're talking about an export or something in the international 4
arena and I want to mean the agency material control and 5
accounting measures, whichis they do, I. talk about "IAEA 6
saf eguards" or " agency saf eguards," and that's a -- you know, 7
that's. one of those code words that means "okay, that's just 8
the material control and accounting, and you still got to get 9
to the guards and the guns."
10 COMMISSIONER GILINSKY:
Th is is " Jo e He ndr ie's
.1 I safeguards"?
12 CHAIRMAN HENDRIE:
Yes, yes.
That's a personal -- a 1.3 personal way of just re f e rr ing --
14 COMMISSIONER AHEARNE:
But that's e ssent ially --
15 CHAIRMAN HENORIE:
-- But here -- y e ah -- he r e --
16 here it covers the whole protection of information of materials 17 and stuff --
18 COMMISSIONER GILINSKY:
Bu t we ha ve -- wha t -- wn a t 19 do we call our divisions when we say " division"?
" Safeguards" 20 o r --
21 CHAIRMAN HENDRIE:
Yeah, we talk about "saf eguards."
f 22 t oo.
23 COMMISSIONER AHEARNE:
Saf ety and saf eguards.
24 CONNISSIONER GILINSKY:
Safety --
25 CHAIRMAN HENDRIE:
dell, but the divis ion is
20 1748.01.18 pv i
safeguards.
2 COMMISSIONER GILINSKY:
No, that's the o ff ice.
But 3
the division is the division of safeguards.
4 CHAIRMAN HENDRIE - Division is safeguards.
The 5
safety side is those other folks.
6 COMMISSIONER GILINSKY And it includes physical 7
security and -
8 CHAIRMAN HENDRIE:
"And."
9 COMMISSIONER GILINSKY:
de don't want to make it too 10 s im ple.
.11 (Laughter.)
12 CHAIRMAN HENDRIE:
Other comments?
13 MR. BICK,iIT:
I just did want to point out that you 14 do have criminal penalties for disclosure, as we ll as the civil penal ies that you --
15 t
16 COMMISSIONER GILINSKY:
Now, that seemed to bother 17 some of the people on the Hill.
t8 CHAIRMAN HENDRIE:
Oh, yes, you're right, because we 19 do tie it back to that thing that has got a criminal penalty in 20 it, yeah.
21 COMMISSIONER GILINSKY:
Where is -- is that section 22 223 or something or --
23 MR. BICK4IT:
Yes.
24 MR. PARLER:
That's paragraph 3 of the new section 25 147, which --
21 748.01.19 pv i
COMMISSIONER GILINSKY:
Which refers to 2
MR. PARLER:
Section 243.
3 COMMISSIONER GILINSKY:
Of the Act, as amended.
4 MR. PARLER:
I might note in that regard that when 5
Senator Hart introduced the bill, by reques.t. that the 6
paragraph on criminal penalties in that bill, as introduced on 7
August 25.
8 COMMISSIONER GILINSKY:
Well., one of the points that 9
was made to me was.--
10 CHAIRMAN HENDRIE:
Listen. I got that criminal 11 penity hook up from Sandy Spector's draf t of a -- of a 12 subversion of this --
13 COMMISSIONER GILINSKY:
Ye ah, we ll --
14 CHAIRMAN HENDRIE:
-- That he -- Senator Glenn was 15 floating, so your --
16 COMMI'SSIONER GILIN5KY No longer --
17 CHAIRMAN HENDRIE:
-- Your late assistant -- no, 18 that's not the right way to ref er to him.
19 COMMISSIONER GILINSKY:
Sut one of the points that 20 was made to me was that there are no criminal penalties for 21 violating national security classifications, unless you can 22 prove --
23 MR. BICKdIT:
Yeah.
24 COMMISSIONER GILINSKY
-- Espionage or something 25 like that, and why should there ce higher penalties here --
748.01.20 22
. p 't 1
COMMISSIONER AHEARNE:
Good que st ion.
What -- what 2
was the answer?
3 COMMISSIONER GILINSKY:
.I don't have an answer.
4 MR. BICKdIT:
I just might point out there are --
5 there are criminal penalties for violating --
'6-COMMISSIONER GILINSKYr With intent 18 USC 1905, which is almost a 7
MR. BICKdIT:
8 counterpart of the Freedom of Information Act.
If you disclose 9
trade -- if a governmental -- if a government official 10 discloses trade-secret information, he can -- he can be
.11 imprisoned.
12 CO W4ISSIONER GILINSKY :
Is that right?
13 MR. BICK4IT:
Yes.
14 COMMISSIONER GILINSKY:
Well, maybe that's the 15 answer.
But -
16 (Laughter.)
17 CHAIRMAN HENDRIE:
de're just trying to make it 18 possible to imprison everybody else.
No w, that seems only 19 fair.
20 COMMISSIONER GILINSKY:
de just got through saying 21 this was not proprietary information.
22 Well, I -- I don't know what the answer is. because 23 there aren't any re al penalties for disclosing def ense 24 inf ormation unless it's done with intent to harm the country or 25 unle ss it's proven that it was done with intent to harm the
23-748.01.21 pv i
country.
2 MR. BICKdIT:
In enacting USC 1905 there isn't any 3
mens rea requirementi there isn't -- it's a -- it is a strict 4
liability criminal statute, and if you disclose the information 5
even if you did not intend to do any harm --
6
.CONNISSIONER GILINSKY:
But -- but it i's something 7
that bothers at least some people up there, and we might want 8
to consider whether we really need it.
9 COMMISSIONER AHEARNE:
We.ll, I think we ou ht to 10 certainly consider can we -- whichever way we go, whe ther we
.I l have a justification for --
12 COMMISSIONER GILINSKY:
Right.
13 COMMISSIONER AHEARNEs. I guess I am - I am neutral.
14 I would just like to -- would like to hear a good justification 15 for that.
16 COMMISSIONER GILINSKY:
de.11, the justif ication is:
17 to provide some deterrent.
I sucpose the question is:
Is it 18 enough to -- now, you have considerable --
19 COMMISSIONER AHEAR:lE:
In the criminal -- in the 20 criminal penalty section that this ref ers to, what -- is there 21 a part.icular range of penalties that are subject --
22 COMMISSIONER GILINSKY:
You mean a cap.
23 MR. STOISER:
It says up to slo,0C0 or five years. I 24
.think.
25 COMMISSIONER GILINSKY:
Now, as f ar as it concerns
24 748.01.22 pv i
licensees, presumably you have some. control over that.
You 2
can -- you might not be able to get at individuals, you can 3
certainly --
4 CHAIRMAN HENRIE:
(ou can always --
5 COMMISSIONER GILINSKY:
-- You can ge t at licensees.
6 CHAIRMAN HENDRIE:
-- You can always muscle the 7
l icensee, but --
8 COMMISSIONER GILINSKY:
Now, in the government you 9
can discharge someone f or something like this, presumably.
10 MR. STOISER:
The penalties under 222 are rather
.11 interesting.. For just a sinple of fense it would be 5000 years 12 or -- s2000 or two years.
13 (Laughter.)
14 But'if you have an intent to injure the United 15 States --
16 MR. BICKNIT:
At least it's a cap.
17 MR. STOISER:
Yes. 'Or an intent to secure an 18 advantage to a foreign nation, you can get $20,000 or 20 years 19 or both.
20 CHAIRMAN HENDRIE:
Let's see, what was the language 21 on the first one?
22 MR. STOISER:
Just -- just upon conviction.
23 punishment is a fine of not more than $5000 or by imprisonnent 24 for not more than tvo years, or both.
25 CHAIRMAN HENDRIE:
Is that the 161(b)?
25
!748.01.23 pv 1
MR. STOISER:
That's 223.
2 COMMI.SSIONER AHEARNE:
161(b) refers to 223.
3 MR. BICKdIT:
It incorporates 161 --
4 CHAIRMAN HENDRIE:
Oh, yeah, yeah, I s ee, I see it.
5 It's the old stuff.
Yeah.
~6 COMMISSIONER GILINSKY:
It seems to raise a specter 7
in some. person's mind that -- tha t the Co mm i ssio n will be, you 8
know, preventing criticism of saf eguards programs or 9
deficiencies or might use this in some way to keep that sort of 10 inf ormation f rom ge tting out.
11 MR. STOISER:
That only provides the opportunity to 12 use it, and. the prosecutor, of course, doesn't, you know, use 13 his discretion to determine whether or not there may be 14 prosecution.
15 COMMISSIONER GILINSKY:
dell. I am just telling you 16 how some people react to that.
17 MR. STOISER:
Yeah.
18 CHAIRMAN H5NDRIE:
Mell, but that's also why, you 19 know, the protections on the other side are also why all that 20 other language is written in there, the Commission has to make 21 a determination and so on and so on and so on, that it'll 22 exercise this provision with restraint and so on.
23 The fact that there's no specific statutory penalty 24 for national security information, I gue ss that's correct.
25 Restricted data, however, that
748.01.24 26 pv 1
COMMISSIONER GILINSKY:
Yes.
2 CHAIRMAN HENDRIE:
-- Category of atomic energy 3
. information which is covered by the Atomic Energy Act, there is 4
-- that's -- that's a criminal matter.
5 MR. BICKAIT:
The precedents -
6 CHAIRMAN HENDRIE:
"Shall be punished by 7
imprisonment.for life or by imprisonment for any term of years 8
or a fine of not more than s20.000, or both."
So, you know, 9
the atomic energy sort of stuff did carry -- I don't know 10 COMMISSIONER AHEAR.lEs Well. it seems to me that if
.I l you had a --
12 CHAIRMAN HENDRIE:
I would like -- I recognize that 13 it is a point that -- that people could -- can raise a question 14 on.
I -- I have a f eeling that the protection is a li.ttle 15 stronger if there is something in the -- in the criminal -- on 16 the criainal penalty side, but --
17 COMMISSIONER AHEARNE:
Mould you like to reopen the 18 other one?
19 CHAIRMAN HENDRIE:
-- I f -- i f I had to -- if you 20 had to settle for doing without it or not having the 21 legislation, why, I would take the legislation without it.
But 22 I would -- I would propose that we go with it and then see how 23 the discussion goes and what sort of -- how the course of the 24 argunent goes on the question of is this an excessive -- you 25 know, have you got -- have you put too big a club in --
27
'748.01.25 pv I
MR. PARLER:
Yes.
2 CHAIRMAN HENDRIE:
~--- Fo r this -- this thing.
And 3
I think that's a --
4 COMMISSIONER AHEARNE:
You know, I -- I think,
5 realistically, we are more -- we ought to be taking the 6
position that we recognize there's a need for protection.
7 We're not experts on -- on trying to conclude what is the best 8
penalty system, criminal versus civil, in this kind of ceiling.
9 So, I am satisfied going this way.
10 CHAIRMAN HENDRIE:
Okay.
.11 Other comment?
12 dell, let me seize the momentary silence to ask if I 13 coul get an affirmative vote to send it up.
14 VOICES:
Aye.
15 CHAIRMAN HENDRIE:
So ordered.
16 The next one back here is --
17 MR. BICK.1IT:
The quo rum -- o r 'the voting.
18 CHAIRMAN HENDRIE:
Oh, yes, the quorum thing.
This 19
-- this is the one where it seems to me we, after great 20 pontification, we sent up some len uage, and it turned out not 21 to do the job.
22 (Laughter.)
23 And then we sent up -- and then we sent them a 24 letter saying, you know, " Destroy Letter 1.
Le tte r 3 fo llows."
25 And by the time that got there the committee had already -- I
28 748.O l '. 2 6 pv i
discovered the committee already had a draft in which they'd.
2 you know, taken our proposal, thrown it contemptuously aside.
3 and written what was the right way to write it, and had that up 4
as a proposition in the, I guess, it was the -- not the 5
conference -- through the House side report on the
'6 authorization bill.
So, I congratulate them on the a stutene ss 7
of their legal review.
8 Anyway, as I think I had testified on this subject 9
last year, I think it would be nice to have this little bit of 10 relief so certain of our notational votes could be -- could be
.11 done by that way, with the agreement of all Commissioners. of 12 course, if that's okay.
13 But, you know, if -- if so.mebody found that it did 14 terrible damage to their vision of the Commission, why, you 15 know, we've been living without it and it hasn't exactly broken 16 us up.
Furthe rmo re, it only aoplies to unanimous -- let's 17 s ee --
18 MR. BICKNIT:
Yeah.
It has to be in writing and 19 unanimous.
20 CHAIRMAN HENDRIE:
It has to be in writing. it has 21 to be unanimous, and we all have to agree that we can do it 22 this way.
23 MR. SICK,1IT:
Tha t's right.
24 COMMI SSIONER GILIN3KY:
So you check two coxes.
25 CHAIRMAN HENDRIE:
So you have to eneck two ooxes,
748.01.27 29 pv i
or that you agree --
2 MR. BICK.1IT:
Tha t's right.
3 CHAIRMAN HENDRIE:
-- That it can be done by 4
notation vote, and then we all have to come out on the 5
substance the same way.
6 Now, that means, inevitably, that there are going to 7
be some fraction of our -- you know, the actions that we now 3
take for which we have affirmations, which will continue to 9-have a ffirma tions.
Those will be the ones where the vote is 10 not unanimous but where we've agreed that it's time to come to
.I l the issue and count the heads.
S o it wo n' t -- yo u kno w, this 12 won't do away with affirmations out -- I an inclined -- having 13 sent it up last year and having had the House side sta.ff, you 14 know, write it correctly and put it in their conference report.
15 I would kind of like to go back up and say, yeah, we think --
16 COMMISSIONER GILINSKY:
It's a gcod idea.
17 CHAIRMAN HENDRIE:
-- We th in k it 's -- it 's a g ood 18 idea, but, you know. I am not going to fall on my sword if --
19 COMMISSIONER AHEARNE:
Is this provision retroactive 20 now?
21 CHAIRMAN HENORIE:
'da y I de fer to the -- ye s, sir.
22 Sorry.
23 MR. STOISER:
My recollection was that it was the 24 committee staff that knocked it out, out I -- i t is -- it is 25 correctly phrased in this.
30
- 748.01.28 pv i
COMMISSIONER AHEARilE s The second question -- the --
2 I gather the House accepted the idea.
3 MR. STOISER:
Yes.
4 COMMISSIONER AHEARNE:
And what was the reaction of 5
the Senate?
6 MR. STOISER:
I don't recall what it --
7 CHAIRMAN HENDRIE:
I don't think it appeared.on the 8
Senate side.
de mentioned it in testimony up there, and I 9
don't think it ever got -- got built in..
10 COMMIS3IONER AHEARNE:
What was their concern?
.11 CHAIRMAN HENDRIE:
I just don't 12 COM4ISSIONER BRADFORD:
If I rememoer, a sort of 13 vague suspicion on their side without -- it never really came 14 to a sharp focus.
15 CHAIRMAN HENDRIE:
Maybe it was more.in the sense 16 that there must be something wrong with it if those guys are just haven t found out what it is yet.
d 17 proposing it and we 18 (Laughter.)
19 COMMISSIONER GILINSKY:
I vo t e a ye.
20 COMMISSIONER AHEARNE:
I vote aye.
21 CHAIRMAN HENDRIE:
Okay, Peter?
22 COMMISSIONER BRADFORO:
Yes.
23 CHAIRMAN HENDRIE:
Okay.
So ordered.
Let's go 24 forward with it again.
25 The only thing I would suggest is that in the text I
31 748.01.29 a
pv i
have before me that I have an "an" spelled with two "a s.
2 Third line.
3 COMMISSIONER GILINSKY:
There's that committee 4
staff, again.
5 CHAIRMAN HENDRIE:
They're everywhere.
6 The_last item in the package has to do with 7
providing statutory recognition for tne 0.ffice of Inspec. tion 8
and Enforcement.
de had some discussion about this previously, 9
but it was -- let's see, it was in a circumstance in which 10 there just wasn't an opportunity to exercise this, and I said 11 we ought to postpone iti right?
But you had some 12 COMMISSIONER AHEARNE:
dell, a question --
13 CHAIRMAN HENDRIE:
Yeah.
14 COMMISSIONER AHEAR:lE
-- One of the cuestions I had 15 was whether the purpose of it as I had originally understcod 16 the purpose of i't was at least partially to elevate the 17 director of I&E from a five to a four.
18 COMMISSIONER GILINSKY:
Totally.
19 COMMISSIONER AHEARNE:
dell, all right.
That's vnet 20 I had origina lly --
21 CHAIRMAN HENDRIE:
No. I -- o n l y p a r t --
22 COMMISSIONER AHEARNE:
Primarily.
23 CHAIRMAN HENDRIE:
I will say "in part."
24 COMMISSIONER AHEARNE:
And then when I read it. I 25 found that wa sn't -- didn't s eem to be part of the
32 748.01.30 pv i
COMMISSIONER GILINSKY:
dell. except that ln doing 2
so, we thought we were giving recognition to an imoortant 3
Commission function.
4 COMMISSIONER AHEARNE:
Yeah.
All I am saying is 5
that in reading this there was no such (INAUDISLE) in the final 6
report.
7
_ COMMISSIONER GILINSKY:
Well because that's no 8
longer relevant.
9 COMMISSIONER AHEARJE That's right.
It's now no 10 longer relevant.
But the primary reason for a piece of
.11 legisla tion --
12 COMMISSIONER GILINSKY:
Yeah, out 1.3 COMMISSIONER AHEARNE:
- That's no longer 14 relevant --
u 15 COMMISSIONER GILINSKY
-- Sut the reason we were 16 doing this was not to give them an extra couple of thousand 17 dollars, but to put that office on the same basis as --
18 CHAIRMAN HENDRIE:
That's wny I --
19 COMMI SSf 0NER GILINSKY:
-- The o the r o f f ic e s.
20 CHAIRMAN HENDRIE:
-- That's why I would answer "in 21 part" and not " totally."
22 COMMISSIONER GILINSKY:
dell, no, what I meant was 23 that was the -- the me thod we were using to put that office on 24 the same basis as tne other offices.
Now, it turns out that 25 the salary in either levels are no longer acplicable, or at
33 748.01.31 pv i
least won't be very soon.
But the notion of putting these --
2 COMMISSIONER AHEARNE:
But it also neans that you 3
can put them on an ecuivalent level as f ar as the salary is 4
conce rned --
5 COMMISSIONER GILINSKY ' That's right, but then 6
that's his personal -- well, you can put them higher or you can 7
put then lowers you can do a lot of. things now.
But it still 8
doesn't give that office, which is. I believe, now and 9
certainly is going to be the largest o.f f ic e in the Commission.
10 the recognition that it ought to have
.11 COMMISSIONER AHEAR.lEs dell, that's what --
12 COMMISSIONER GILINSKY:
-- dithin the organization, 13 and that really -- you know. Joe. spoke to that more elocuentiv 14 than I can here, but I think it really makes a big difference.
15 COMMISSIONER AHEARNE:
And that's where I was -- I 16 was questioning, since we've now agreed that the first part of 17 it is no longer relevants that is, the statute -- we ll --
18 COMMISSIONER GILINSKY:
Well, that -- that 19 technique --
20 CCHUISSIONER AHEAR:lEs
-- Applied bef ore, that 21 technique -
f 22 COMMISSIONER GILINSKY:
Yes.
23 CHAIRMAN HENDRIE:
I would --
24 COMMISSIONER AHEARNE:
-- Just as a procedureal -
25 CHAIRMAN HENDRIE:
-- I would like to put an
34 748.01.32 pv i
asterisk on that and take up further my argument with the --
2 with the counsel's office or other legal staff about whether 3
in fact that -- that is f ully true.
4 COMMISSIONER AHEARNE:
Well, I think that now, with 5
the --
6 CHAIRMAN HENDRIE.:
Let me -- let's do that later or 7
in a moment.-
8 COMMISSIONER AHEARNE:
dell, just one comment en 9
that, though, Joe.
I think with the specific direction in the 10 Civil Service Reform Act removing the specified --
.11 CHAIRMAN HENDRIE:
Yes.
12 COMMISSIONER AHEARNE:
-- Le v e l s --
13 CHAIRMAN HENDRIE:
The discussion --
14 COMMISSIONER AHEARNE:
-- It would be very difficult 15 to come back in with a new --
16 CHAIRMAN HENDRIE:
With new language, with -- with a.
17 proposal that talked about executive level 4 18 COMMISSIONER AHEARNE:
Right.
Right.
19 CHAIRMAN HENDRIE:
Unless you had some basis for 20 excluding it from the SES --
21 COMMISSIONER AHEARNE:
Yes.
22 CHAIRMAN HENDRIE:
-- Which would be a bit of a 23 head-scratcher in itself.
24 COMMISSIONER AHEARdE:
Difficult, yes, yes.
25 CHAIRMAN HENDRIE:
And it's certainly not acplicaole
35 748.01.33 pv i
in this discussion.
2 The discussion the other day said that -- that the, 3
you know, sort of the legal f ramework that we operate now is 4
in effect put -- ne ve r mind this --
5 COMMISSIONER AHEARNE:
Yes.
6 CHAIRMAN HENDRIE:
-- Under --
7 COMMISSIONER AHEARNE:
That's right.
8 CHAIRMAN HENDRIE:
-- Under that language.
9 COMMISSIONER AHEARdE Now, then, let's get to the 10 other --
.11 CHAIRMAN HENDRIE:
Okay.
I ssue, which is the 12 COMMISSIONER AHEARdE:
13 recognition and the need to demonstrate it is an equivalent, 14 Obviously, I don't speak from the in-depth knowledge that you 15 people do w.ithin this agency.
I am only talking about from the 16 experience in other agencies.
And in the other agencies in 17 which you have some people being statutory in their positions 18 and others really holding those positions. the significance of 19 the individual and the significance of the position was 20 unrelated to whether they were statutory or not.
Most people 21 didn't even know whether they were statutory or not.
It was --
22 it hapoened to be in the law, but it just is not -
vas never a 23 criterion for what was the important office and what wasn't an 24 important of fice.
25 The criteria were always:
Mhat role did those
36 748.01.34 pv 1
offices play?
What jobs did they have to do?
How important 2
were to carrying out the mission of the agency?
3 And so, my conclusion had oeen at -- at least to the extent that, by analogy, other departments or other agencies 4
5 have. significance and that putting it into statute wa s not 6
necessary to give it that significance.
7 COMMISSIONER GILINSKY:
dell, of course, you're 8
getting into the realm of organizational psychology here --
9 COMMISSIONER AHEARNE:
That's.right.
10 COMMISSIONER GILINSKY:
-- And so then. "in the eye
.Il of the beholder."
My view is that it really does make a 12 difference, maybe because it's a. comm iss ion and there's a 13 different sort of relationship between those rurning the place 14 and -- and the various o ffices.
s 15 But I can tell you, they really do 1.cok at those 16 statutes and the wording and whether it says that 17 COMMISSIONER AHEARNE:
dell, I --
18 CONNISSIONER GILINSKY:
-- They can report direct 1y 19 to the commission or not.
20 COMMISSIONER AHEARNE:
Then that might be in this 21 focus, even --
22 CHAIRMAN HENDRIE:
Yeah, I --
23 COMMISSIONER AHEARNE:
-- Eha t pa r t.
24 COMMISSIONER GILINSKY:
But my feel.ing is that --
25 COMMISSIONER AHEARNE:
But you don't have to spend
37 1749.01.35 pv i
all that time worrying about that.
2 COMMISSIONER GILINSKY:
.iell, it makes a dif ference.
3 CHAIRMAN HENDRIE:
I agree.
I think it does make a 4
difference.
If the other three offices that are established by 5
statute in the bill had not been estaolished there -- that is, 6
if the bill, the Energy Reorganization Act, simply said the 7
Commission may organize its staff as it sees fit to carry out 8
its mission and there are authorized to be four officers at 9
grade 4 and a general counsel and five o.fficers at grade 5, et 10 cetera, why. you know, in no way would I be in here saying
.l l let's -- let's get Congress to pass, you know, to acd something 12 in that says there shall be an Office of I&E.
13 But they didn't.
They went ahead and enumerated
(~
14 those three offices, and now we've got a major function of the 15 Commission which is not part of that operation, and there's no 16 way that you can establish it --
17 COMMISSIONER AHEARNE:
Let me give vou --
18 CHAIRMAN HENDRIE:
-- Without -- without --
19 COMMISSIONER AHEARNE:
Let me give you a recent 20 comparison.
21 CHAIRMAN HENDRIE:
Yes.
22 COMMISSIONER AHEARdE The law that set up the 23 Department of Energy got a statutory ass istant secretary for 24 environment and a statutory assistant secretary for 25 conservation, and does not have a statutory a ssi stant secretary
38 748.01.36 pv i
for energy technology.
No w, there's no doubt within the 2
Department of Energy that the Energy rechnology office.
3 previously (INAUDIBLE) is a much more important of fice than 4
either of those other two, is independent of what the statute 5
says.
CHAIRMAN HENDRIEr That's this year's vision.
6 7
COMMISSIONER GILINSKY:
I think there's also a 8
dif ferent --
9 CHAIRMAN HENDRIE And it's based on this year's 10 budget.
Next year, unle ss the law is changed, there will be assistant se.cretaries of conservation and so on, but there.may 12 or may not be one of energy technology.
And there is a 1.3 difference.
14 COMMISSIONER GILINSKY:
I think there may be a
( ~
15 d.ifference between the way DOE would look at this and the NRC.
16 as an organization, would look at it, you know, sta.ff and 17 others.
Because of the f act that it's a commiss ion.
In sons 18 way there isn't any direct relationship with some head of the 19 organization, and I think you're -- you're leaning more on the 20 statutes than -- than you would elsewhere.
I am not sure that 21 that's entirely right, but at least that -- that's one possiole 22 e xplana tio n.
23 The fact is:
It does make a difference, in just 24.
talklng to people and their consciousness of it; the persons in 25 the various offices are very conscious of it.
I don't know
748.01.37 39 pv i
what else to say about it.
But --
2 CHAIRMAN HENDRIE:. I think -- well, I have enough.
3 COMMISSION GILINSKY:
Yeah,- it may be -- it may be 4
because of it -- that there's a diff erent management 5
relationships there isn't, you know, a single head who 6
naturally.will develop certain r'elationshlps with -- with 7
offices dep9n_ ding on ths.ir functions.
And they're a li.ttle 8
more autonomous, probably, than they would be In a -- in a line 9
-- you know, a cabinet department and, therefore, lean a little iO more en the eternal verities of the law.
.11 I don't know that that is, in fact. the right 12 explanation, but at least it's one explanation for something I.3
.that it seems to me is -- is pretty evident.
14 COMMISSIONER AHEARNE:
hell, I won't argue any --
15 any longer.
I will just vote against it, but I think all of 16 you are in favor, so --
17 COMMISSIONER GILINSKY I am.
18 CHAIRMAN HENDRIE:
I am.
19 Let's vote it up two to one and --
20 COMMISSIONER GILINSKY dell, let's see, before 21 w e --
22 (La ughte r. )
23 CHAIRMAN HENDRIE:
Two -- two a bs e n t.
Yeah.
24 COMMISSIONER GILINSKY :
de're voting on a specific 25 language here.
40 748.01.38 pv i
CHAIRMAN HENDRIE Yaah.
Do you find some things 2
you want in or out?
3 CONNISSIONER GILINSKY:
dell. we say the --
4 "princ ipal investigations, enf orcement." and so on.
That's 5
okay.
" Managing fleid offices recommending research " it seems 6
to me they also would be recommending license ~ changes, or is end#1 7
that locluded --
8 9
10
.11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
CR 2748
,OPEN' MIKE 41
- 2 1
COMMISSIONER GILINSKY (continuing) :
-- just one 2
e:@lanation for something it seems to me is pretty evident.
3 COMMISSIONER AHEARNE:
Well, I won't argue any 4
longer.
I'll just vote against it, but I think all of you are 5
in favor of it, so --
6 COMMISSIONER GILINSKY:
I am 7
CHAIRMAN HENDRIE:
I am.
8 Let's vote it up, 2 to 1 --
9 COMMISSIONER GILINSKY:
Well, let's see, before i
i 8
10 I we --
l 11 (Laughter.)
12 CHAIRMAN HENDRIE:
Two absent.
13 COMMISSIONER GILINSKY:
We're voting on this f(
14 specific language here.
15 CHAIRMAN HENDRIE: ~ Yes.
Do you find some things l
16 you want in or out?
17 COMMISSIONER GILINSKY:
Well, we say that " principal!
18 investigation and enforcement" and so on; that's okay.
l i
19
" Managing field offices," " recommending research," it seems 20 to me they would also be recommending license changes -- or i
21 is that included?
22 CHAIRMAN HENDRIE:
Yep, " terms of any license 23 issued by the Commission," "it may be necessary to conserve 24 ;
compliance," ta-dah, ta-dah, ta-dah.
Acessars n.conm, inc. !
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25 COMMISSIONER GILINSKY:
I would think, if you're i
i
2-2 jwb 42 going to put in " recommending research," I would think you'd want to put in making recommendations to the licensing 2
3 offices.
MR. MALLORY:
I think, Commissioners, that kind of
~
4 5
detail was originally, in a previous draft, included along with'a number of other points under Section (b) (1), and after 6
discussion with John Davis and an attorney from ELD, and 7
several other people at I&E, they preferred that the details 8
be omitted and the staff should be in a more general form.
9 I
10 i COMMISSIONER GILINSKY:
Well, it's fine, so long as i
11 it would cover it.
Do you see it?
The other side of putting 12 in language is that -- the fact that people will look at it 13 and say:
Therefore, you can do this, not more than that.
14 Can you show me how it would be covered?
15 MR. MALLORY:
Well, you would read it into this 16 technical inspection and investigation --
17 COMMISSIONER GILINSKY:
Well, it says " principal 18 inspection and investigation and enforcement."
I 19 MR. hALLORY:
-- and enforcement, and I would think '
that the idea of making recommendations growing out of one's i
20 21 job would be sort of an implicit in doing any job --
COMMISSIONER GILINSKY:
Well, then, why are we 22 23 putting in " recommending research"?
24 MR. MALLORY:
That is there simply --
Am-Federal Reco,ters, Inc.
25 CHAIRMAN HENDRIE:
For' symmetry.
p.3 jwb 43 MR. MALLORY:
-- because it's symmetrical with the 1
other three sections, or the two sections for NRR and NMSS.
2 3
I don't know how important those --
CHAIRMAN HENDRIE:
If it wasn't in the others, you 4
wouldn't particularly put it in here, because -- but --
5 COMMISSIONER AHEARNE:
Are you saying it would be 6
noticeable --
7 CHAIRMAN HENDRIE:
I'm afraid so.
8 COMMISSIONER GILINSKY:
Yes.
9 i
10 i CHAIRMAN HENDRIE:
There might be the inference l
11 that since it was in for the reactor guy and the NMSS guy, 12 obviously it's in for the research director, in for those two 13 that --
14 MR. STOIBER:
Well, there could be a negative 15 implication there --
16 CHAIRMAN HENDRIE:
If it wasn' t here, maybe this t7 guy shouldn't suggest it.
COMMISSIONER GILINSKY:
Yes.
18 I
19 MR. STOIBER:
If it weren't there, there could be
~
20 a negative implication that he lacked the authority to make -
CHAIRMAN HENDRIE:
Yes; just so.
21 MR. STOI3ER:
-- recommendations, because the other 22 23 parallel sections had it in, and --
24,
CHAIRMAN HENDRIE:
Yes, it's entirely for symmetry.
Am-Federal Reco,ters. Inc. I 25 MR. STOIBER:
-- you have a maximum interpretation
2-4 jwb 44 that if you express something in one part of the statuto and j
leave it out of another place where it would be obvious to 2
include it --
3 COMMISSIONER GILINSKY:
Could we, in any submission 4
r.writeup, or backup on this that we send up, indicate that it 5
would ' include these other functions?
6 MR. STOIBER:
Sure.
7 CHAIRMAN HENDRIE:
Yes.
8 MR. BICKWIT:
Well, what's covered is anything 9
10 ;
delegated by the Commission, including the following.
i COMMISSIONER AHEARNE:
Does that mean that "the 11 f 11 wing" must be included?
12 MR. BICKWIT:
Yes.
13 i
CHAIRMAN HENDRIE:
Yes.
j4 COMMISSIONER GILINSKY:
Yes.
15 I
COMMISSIONER AIEARNE:
"Must be included."
So that l 16 l
this bill puts into statute the requirement that any field j7 ffice, regional office we have, must be managed by the 18 i
i Director of I&E.
19 CHAIRMAN HENDRIE:
That's correct, and it's a good i
20 question of whether it ought to be in there.
21 COMMISSIONER GILINSKY:
Yeah, I would think that --
22 COMMISSIONER AHEARNE:
I would drop it.
23 CHAIEMAN HENDRIE:
I would drop it, too.
I think I 24 Ace-Federa4 Reporters, tric.,
have no thought of changing the present arrangement, but you're!
i 25 l
l
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2-5 jwb 45 right.
It's not clear that it needs to be in there.
It can j
be one of,those assigned duties and --
2 MR. MALLORY:
Our thought was that it should be 3
dropped.
It was INE's thought --
4 MR. BICKWIT:
That certainly was expressed in this 5
6 P"P*#*
CHAIRMAN HENDRIE:
Ah-hah' 7
COMMISSIONER GILINSKY:
Well, there you go again, 8
expecting us to read the papers.
9 l
(Laughter.)
i 10 l
11 COMMISSIONER AHEARNE:
Now, in what day does this i
overlap -- in what way does this overlap with things that OIA 12 does?
13 CHAIRMAN HENDRIE:
Gee, none at all.
I mean, it's l
j4 15 a sort of separate mission.
I' COMMISSIONER AHEARNE:
I know INE's mission is 16 17 separate.
I'm asking really more what -- in what way does this language overlap with what OIA doe 2.
18 I
19 I don't know that it does, but when you are talking l
about the principals -- that they are the principal inspection 20 l
and investigation, incitiding all facilities, materials, or i
21 l
therwise that may be necessary to ensure compliance with any 22 l
rules, regulations or orders by the Commission, I'm just asking 23 I
24 the question:
Does that in some way then mean that OIA cannot ;
Aco-FaserW Recorws, Inc.
I 25 be -- take the lead on investigating something wnich they are
2-6 jwb 46
~
i currently investigating?
2 COMMISSIONER GILINSKY:
Well, if there was a cracked 3
pipe, you wouldn't send out OIA.
4 COMMISSIONER AHEARNE:
No, no, I'm not -- Vic, I 5
know there are most -- many things that INE clearly is the 6
principal arm ---
7 COMMISSIONER GILINSKY: You mean, is there anything
~
8 that would go the other way?
9 COMMISSIONER AHEARNE:
The difficulty when you i
10 I write a law, put something into law, is you've now put that 11 into law.
And you ought to really be sure you know what you'rei 12 putting into law before~you do it.
(
13 MR. STOIBER:
This is actually the language in 14 Section A and B(1) is taken almost verbatim from the manual 15 chapter which describes the duties of the offices.
16 Now we haven't --
17 COMMISSIONER AHEARNE:
Yes, I recognize that.
I 18 MR. STOIBER:
-- we haven't looked -- Yeah.
We I'
19 haven't looked at the Office of Inspection and Enforcement --
20 MR. BICKWIT:
You could put in, on a non-exclusive l
21 basis.
That would solve your problem.
22 COMMISSIONER AHEARNE:
I was just concerned about 23 whether or not we were --
24 MR. MALLORY:
I think perhaps the word " principal" Ace-Federal Reporters, Inc.
25 is enough to make it non-exclusive.
l
2-7 jwb 47 COMMISSIONER GILINSKY:
Meaning it's not --
COMMISSIONER AHEARNE:
I do,n't know; I'm not a 2
1""Y"#*
3 COMMISSIONER GILINSKY:
You're saying "not all"?
4 ma ng a q esdon.
5 COMMISSIONER GILINSKY:
Yes.
3 MR. MALLORY:
I think " principal" would be enough 7
that any other office could do some of. those things, but it 8
wouldn' t be the principal office --
9 l
COMMISSIONER AHEARNE:
But the question would be:
l 10 l
11 Could they do it on a -- in a case, could they do it exclusively, which might be the case in some OIA investigations',
12 MR. STOIBER:
I think so, as long as the bulk of 13 the Commission's activities in that area are performed by the ja Inspection and Enforcement office.
15 CHAIRMAN HENDRIE:
Other comments on tnis chunk?
16 (No response.)
j7 l
CHAIRMAN HENDRIE:
Now let me raise my asterisk j
18 one last time.
j9 COMMISSIONER GILINSKY:
Let's see.
We're talking i
20 aboututhe Administration down here.
21 CHAIRMAN HENDRIZ:
What?
iihere?
Where?
g COMMISSIONER GILINSXY:
What " Administration" is 23 that?
24 Ac 7. arm Recorte.s. inc.
I MR. STOIBER:
'ihat is also a parallel term.
3
2,8 jwb 48 "A hini-stration" now in our statute -- it.used to mean "ERDA"; now, by virtue of the DOE creation Act, any time
" Administration" is used in our statute it means " Department 3
of Energy."
0 R
KY:
We 1, u y don' t we just 5
put in " Department of Energy," and then at least this part will be up'to date.
7 MR. STOIBER:
Well, we can - yeah, we can do that; it just -- just --
9 t
MR. MALLORY:
This was to make it -- the language, i
g parallel to the Act as it stood and still stands.
11 MR. STOIBER:
DOE --
g COMMISSIONER GILINSKY:
No, I understand.
At least i
let's sort of start fixing up.--
l MR, STOIBER:
See, here you get these non-lawyers n
e w
some radonamy and me, and --
16 COMMISSIONER AHEARNE:
Vic, I suspect you can make I
17 g
that proposal, but it i.in' t going to come out --
18 (Laughter. )
19 s
-- y u 20 is like taking a new problem and working it until you've g
reduced it to an old one, and then to say:
Now go see the g
solution to the old problem.
I don't care.
COMMISSIONER AHEARNE:
There's a whole group of 24 i
I Ace 4ederal Reco,ters, Inc.
lawyers that just do nothing other than track from one Act to 3
l
2-9 jwb 49 another.
COMMISSIONER GILINSKY:
Well, it just looks funny.
MR. STOIBER:
Yes.
We'11 change it.
CHAIRMAN HENDRIE:
It means " DOE," specifically, these days.
COMMISSIONER GILINSKY:
Well, " Administration" has got other meanings, too, at least for the layman.
CHAIRMAN HENDRIE:
Yes.
I think it meant the 8
Energy Research and Development Administration, as a matter of,
9 fact, under the En~rgy Reorganization Act.
g3 All right, put in " DOE" and that will show we're 11 up to date in Kansas City.
Now can I raise my asterisk?
COMMISSIONER GILINSKY:
Yes.
"Y #8 *
^
15 everybody is confident, are they, that the grade question g
doesn't need some reference?
MR. STOIBER:
We discussed this with Ms. Greenberg 18 l
1 before her appearance with you, and I believe the questions i
39 that you posed during that session --
CHAIRMAN HENDRIE:
Yes.
MR. STOIBER:
-- also clarified it, and that is our understanding of it.
CHAIRMAN HENDRIE:
Well, it seemed to me that that g
I Acs4ederal Reporms, Inc.
was the way it came out.
g I
i
2.10 jwb 50 1
All right, we can check off my asterisk.
' Other questions?
2 3
(No response.)
CHAIRMAN HENDRIE:
Those in favor?
4 COMMISSIONER BRADFORD:
Aye.
5 COMMISSIONER GILINSKY:
Aye.
6 CHAIRMAN HENDRIE:
Aye.
7 Ah, I'm building it up.
8 9
Those opposed?
l 10 i COMMISSIONER AHEARNE:
Aye.
i l
11 CHAIRMAN HENDRIE:
3 to 1.
Throw it in the mill.
l 12 Changes as proposed.
13 I think that's very good.
And although I never did 14 get Dick's proxy, I think that's the way he would have voted.
15 (Laughter. )
i 16 COMMISSIONER AHEAFNE:
Since Peter came back and 17 voted, it's irrelevant.
18 COMMISSIONER BRADFORD:
How Dick would have voted?
i 19 COMMISSIONER AHEARNE:
Yeah, because the vote would 20 be 3 to 2, and all the other votes were in.
21 CHAIRMAN HENDRIE:
That's right.
When Peter joined,,
I I
22 why it became an absolute majority of the Commission, not a
'23 quorum majority; right.
Good point.
Duly noted.
24 Let's see.
Other subjects that you might want to kw! Mwd Rnnnwn, ine,
25 take up?
I. detect a certain reluctance at the table now to
2-11 jwb 51 advance upon licensing legislation.
(Laughter.)
CHAIRMAN HENDRIE:
I have the impression there'd be a rapid sprint for the door if I made a move in that direction, so I won't make it.
Let me see if there's anything we ought to tell each other about next week.
7 (Pause.)
We won't gather until Wednesday.
9 i
COMMISSIONER AHEARNE:
Are we going to get a paper l
10 l
n the S-3 rule making before that discussion that OGC has 11 se eduled?
12 MR. BICKWIT:-
I don't know the answer to that, sir.
g I'll get back to you.
9 n't meer wheder dere 15 was another one.
Is there a --
g MR. BICKWIT:
Another paper in the works?
g CHAIRMAN B N RIE:
Another paper due?
18 l
MR. BICKWIT:
I don't believe so, but I'll check.
19 me see.
R seems to me 20 that this meeting on the legislation is now concluded.
If you g
l can give me 30 seconds, I would like to come away from g
Commission-meeting format to discuss a -- what is a scheduling g
i and agenda matter, and I have no difficulty -- you know, it l
24 w.o r i neoorters inc.,
25 ;
isn't anything we need to go in the other room about or I
l l
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2-12 jwb 52 anything.
9 (Whereupon, at 2:55 p.m.,
the meeting was 2
e neluded.)
3 s.d #2 4
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