ML19344A463
| ML19344A463 | |
| Person / Time | |
|---|---|
| Issue date: | 07/16/1980 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8008200428 | |
| Download: ML19344A463 (27) | |
Text
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- pa nc UNITED STATES
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NUCLEAR REGULATORY COMMISSION 2 d)
E W ASHINGTON, D.C. 20S55 n
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July 16, 1980 OFFICE OF THE SECRETARY COMMISSION DETERMINATION REGARDING PUBLIC DISCLOSURE UNDER THE GOVERNMENT IN THE SUNSHINE ACT OF:
Transcript of Discussion of Hearing Board Report on Clearance Rule, Tuesday, June 24, 1980 Pursuant to 10 CFR 9.108(c) and 10 CFR 9.104 (a) (10), the Commission has determined that the attached portions of the subject transcript should be released to the public.
The remaining portions of the transcript are being withheld from public disclosure pursuant to 10 CFR 9.104 as noted below:
Page/Line thru Page/Line Exemption 4/15 4/16 10 CFR 9.104 (a) (10) 6/14 6/24 10 CFR 9.104 (a) (10) 7/14 7/16 10 CFR 9.104 (a) (10) 10/2 10/6 10 CFR 9.104 (a) (10) 13/19 13/24 10 CFR 9.104 (a) (10) 15/11 15/15 10 CFR 9.104 (a) (10) 20/15 20/25 10 CFR 9.104 (a) (10) 23/20 23/22 10 CFR 9.104 (a) (10)
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DISCUSSION OF HEARING BOARD REPORT ON CLEARANCE RULE t5
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Nuclear Regulatory Commission n
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11 Tuesday, June 24, 1980 B
f 12 l The Commission met, pursuant to recess of the public meeting, E
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14 BEFORE:
2 15 JOHN F.
AHEARNE, Chairman of the Commission M
g 16 l PETER A.
BRADFORD, Commissioner 17ll RICHARD T.
KENNEDY, Commissioner 3
E 18 JOSEPH M.
HENDRIE, Commissioner 3
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19
- VICTOR GILINSKY, Commissioner 5n 20 NRC STAFF PRESENT:
21 i MS.
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NORDLINGER 22 j E.
HANRAHAN 1
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NRC STAFF PRESENT:
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CHAIRMAN AHEARNE:
All right.
Len?
MR. BICKWIT:
What are we now discussing?
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Derogatory criteria.
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So that I can understand the context, 3
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That is right.
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For its clearance system.
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As our immanent counsel, the 3
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Appropriate to the subject B
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It is the same subject matter as the H
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DOE facilities, and some of the DOD facilities.
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There may be distinction between the 21 I situation and others.
I am not prepared to say.
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CH.~IRMAN AHEARNE:
I doubt you will find any distinc-l I
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MR. BICKWIT:
That is right.
You micht find distinc-i i
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tions between what is an appropriate criteria for access to infor-2 mation versus what is an appropriate criteria for access to 3
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I am just trying to point out that g
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access to information -- they have clearance for access to infor-R 8
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Yes.
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The criteria that not only we apply, 2c g
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That is correct.
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Can I ask on what grounds we
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I mean, I hesitate to interrupt such a fascinating 5_
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That is not exactly where we
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For however good or indifferent those criteria may be for 5
20 the Department of Energy's program; however, we may regard that 21 we are -- that we may be about to take a step which says we are 22 going to use those criteria for this prupose.
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in fact the purposes are the same.
2 Therefore, if we follow -- if one accepts that thesis 3
that one is' going to question the application of those criteria
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COMMISSIONER HENDRIE:
That is an inference that could e
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be drawn if we did that.
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That is correct.
If your question is:
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Do we have any business doing that?
My answer is yes.
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Let me simply say that there have been a 5
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If a criterion infringes upon those rights, then there M
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COMMISSIONER KENNEDY:
Can I refresh myself?
You did 2
say at the beginning you had not done a comprehensive and thorough 3
research study on this matter?
4 MR. BICKWIT:
No.
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COMMISSIONER KENNEDY:
I find it fascinating, but with-0 j
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set, because we are in one of the most complex areas of Constitu-Ml 8
tional law that exists.
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10 the use of the 4th and 5th Amendments is fatuous.
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The point I would make in response is the 3
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if it approves the criteria
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My point is, we are being 5
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18 COMMISSIONER BRADFORD:
Let me ask whether --
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19 COMMISSIONER KENNEDY:
That is the issue.
En 20 MR. BICKWIT:
You have before you --
21 COMMISSIONER KENNEDY:
I can only say to that that in 22 four years, we have distinguished ourselves on this matter only 23 to come to a circumstance where we are being asked to decide an i
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Are you prepared 25 j to make a Constitutional decision?
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COMMISSIONER HENDRIE:
(Nods in the affirmative.)
2 COMMISSIONER KENNEDY:
Splendid, Judge, I mn glad to 3
hear it.
Im sure the next opening on the court will be of 4
interest to you.
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(Laughter.)
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COMMISSIONER KENNEDY:
I do not need one that badly.
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It seems to me the only way you can avoid
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MR. SHAPAR:
This would make the program of every other i
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government agency equally suspect.
2 MR. BICKWIT:
Yes.
The DOE program involving access to 3
material.
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Obviously not every other s
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Every other agency does not handle special nuclear ma-0
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COMMISSIONER KENNEDY:
A great many do.
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COMMISSIONER BRADFORD:
A great many do not.
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A great many do.
2 10 COMMISSIONER BRADFORD:
A more interesting question, I E
ll think, Len, if I can get your attention back a minute, is whether 3
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I cannot give you a full run-down of w
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CHAIRMAN AHEARNE:
Do yo have a run-down of any cases?
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Yes.
21 COMMISSIONER KENNEDY: Could I ask you wjen you started 22 [ making this run-down?
This is not the first time we have had 23 the discussion.
As a matter of fact, I would like to point out 24 'l that this meeting has been one of the most refreshing examples of f.
25 ; the total recall which the Commission devotes to itself on a i
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regular basis.
2 There has not been anything said at this meeting yet 3
that has not been said three time at previous meetings.
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thing that I have heard, including this point, this question was y
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Now, what has been done since this was a major issue?
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What has been done by counsel in the mean time on this point?
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That.is true.
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A study far enough only to say B
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Let us make another
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What counsel did last time was h
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Did he?
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That is one of the cositions 21 we put out for comment.
Unfortunately, we did not get any 22 !
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but that does not cover the concern with regard to the individual 2
items in it.
That is why I had asked for the further discussion 3
of the conc ~ern with regard to t he individual criteria.
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Counsel has indicated that he e
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I am unprepared to do it in a thorough 1
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In fairness, I did not give a
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Do you have any court cases that go E
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Yes.
I would-like to ask Marty to tell z
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What we did do was to look in to see what 2
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Marty, I think we asked what were 2
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All right.
I guess I, for one, find
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MR. BICKWIT:
Six, eight, and nine of 1011(b).
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2I COMMISSIONER GILINSKY:
Can you read those please?
22 MR. BICKWIT:
Yes.
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COMMISSIONER KENNEDY:
They were raised by the board l
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Raised by the participants, but the 25 N
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2 Your recommendations from the board were that these 3
are Constitutional 1y suspect.
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Yes.
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Six is refuses to serve in the service --
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Eight is has abused trust, j
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But at least on number nine, I've got
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We found one case that upheld it.
The 21 difficulty is the difference between the criteria and materials i
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MR. BICKWIT:
It is not considered a fundamental right.
24 The case stands for the proposition that you are dealing si, _y 25,3 with the due process test.
Is there a rational connection in this 4
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Let me ask --
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Why does that question arise 4
with regard to age?
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Again, you are talking about the rational n
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There were words like "dishonestv z.
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As far as that, I agree with vou.
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E"en the meanest of intellects a
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That is right.
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Somebody raised the point in 21 l co==enting in the proceeding that it is not clear, for example, l
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Is that an abuse of trust?
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I do not know.
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that you want the General Counsel to do further research?
2 COMMISSIONER BRADFORD:
It is tending in that direction 3
at the moment, John.
I did not start in that direction.
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Which is not.
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COMMISSIONER BRADFORD:
Parents, brothers, sisters, d*
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spouse, or offspring residing in a nation whose interest may be zcg 10 inimicable to the United States.
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I think there is a question there.
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I am not sure what to make of
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I do not know.
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The General Counsel's office did not
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make an attempt to independently evaluate the criteria.
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the hearing with our own independent study of which criteria 2
should be excluded.
3 CHAIRMAN AHEARNE:
sidn't the hearing itself -- the r
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They discussed if the Commission e
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23 to handle information, you see, would have to be changed.
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result.
The fact that they sre no longer subject to blackmail, 2
so it is those kinds of considerations that relate in the hearing 3
record with regard to these specifica criteria that the board, l
4 when it made its recommendations, felt that the overwhelming case
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-- those criteria should not be --
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CEAIRMAN AHEARNE:
Let me separate applying the clear-l R
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ance rule to power reactors in which we are unique, from applying 8
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15 AGain, qualified by the qualifica-E i
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18 COMMISSIONER KENNEDY:
I suggest one of the ways to get C
19 such an analysis is put those issues before a court.
I cannot
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21 MR. SHAPAR:
You can go to the Attorney General, that 22 is my opinion.
I also mentioned something relevant.
As I recall 23, the notice of hearing specifically, and joined the board from 24 j from considering the legality of the proposed rule.
I 25 MR. BICKWIT:
That is not true.
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MR. SEAPAR:
That is not true?
2 MR SICKWIT:
Not with respect to the criteria.
3 COMMISSIONER BRADFORD:
It asked the parties, I think, 4
not to comment -- go ahead.
So aebody must know.
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MR. SHAPAR:
What did it say?
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access program, but only interested in information as to the d
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suitability of the material for a.' materials access program.
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You're right.
It did not -- it did not --
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Does anyone have further questions
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Just one.
It is the one on e
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That is, what one l
22 is denying is a security clearance and not employment, per se, 1
23 ' but I am not altogerner ccarortable in that cpinion.
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24 l Is it one you have considered at all?
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25f MR. BICKWIT:
Assuming the constitutionality of the a
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17 bfmlB 1
critoria, I think it is clear that this would govern.
It would 2
not be possible to get a clearance -- it would follow.
It would not be possible to gain employment.
In effect, it would nullify 4
the effect of those laws, although it would be related only to --
5
=g it technically would be related to the clearance aspect only.
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3 6
COMMISSIONER BRADFORD:
I tell you where this leaves E
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me, John.
I would be --- I remain comfortable with the proposition n
8 8
that a clearance rule is in order with regard to protecting SNM a
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at facilities that possess it in formula quantities.
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I would prefer to have an OGC memorandum on these E
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specific concerns with regard to the criteria to see whether they 6
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evaporate, or hold up before deciding on endorsing a clearance 13 g
rule that included all of the derogatory information criteria E
14 5
that are presently in 10 CFR.
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In response to the last series of questions 16 l T
posed to the participants, the staff to come forward with an 17 3
analysis it had done of the proposed cirteria as alternatives to i
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5 18 the criteria which are now in the proposed rule; it did not 19 l
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' endorse those criteria, but it stated that earlier it had attemp-8n 20 ted to develop an alternative set of criteria with regard to that 21 as not being terribly different from the ones that are now in 22 the proposed rule.
23 Nonetheless, it submitted them so thar you would have 24 it j them available.
We have reviewed'them.
We find them consider-25
! ably preferable to those in the propose ; rules.
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ALDERSON REPORTING COMPANY, INC.
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CHAIRMAN AHEARNE:
But if you went with anything other ithan those in the proposed rule, we would in effect have a 2
different clearance regime than the doe clearance regime 3
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4 MR. BICKWIT:
That is right, and different from the one a
5 we have with respect to access of information.
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COMMISSIONER HENDRIE:
And for ourselves, as a matter i
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I wanted to ask, before we ended 3
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2 15 Part 10 and their Part-whatever it is.
E I wondered if someone 3-16 could bring me up to date on the status of that.
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- c CHAIRMAN AHEARNE:
I think that is more appropriite 5
18l.
if we reopen the meeting.
I want to see if there is an;rthing i
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5n 20 l COMMISSIONER HENDRIE:
I want to talk about the criteria.
21 It is not out of the question to ask a subsequent series of 22 } questions about how do we -- how the litigation risks run if we t
I 23, write the rule with --
24 ;
MR. SFADY:
'me Cf# ice of Perscnnel Managemn: is cur: ently locking i a
1 25 ) at the criteria in executive order 10.450, dealing with govern-l 1
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ment employment.
Our government criteria are based on a large 2
extent to that criteria.
So, there is an attempt under way to l
3 reexamine that.
Now, DOE is also looking at the criteria.
We
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COMMISSIONER HENDRIE:
But the central effort is the 3
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MR. BRADY:
That's right.
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Presumably, if that changed, n
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if there were a revised executive order published, then the Y
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Yes, sir; and proposed Part 11.
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COMMISSIONER HENDRIE:
An proposed Part 11.
Is there a
b 15. any -- do you have any feeling for when OPM might bring the E
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17 f MR. BRADY:
We are talking about this year.
In the x
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3 20 COMMISSIONER HENDRIE:
They did not make much headway.
21 MR. BRADY:
They did not make much headway.
22 CHAIRMAN AHEARNE:
Joe, does that finish your series of 23 questions?
24 COMMISSIONER HENDRII:
Yes.
Let me just say, John, I O
25, am nor particularly an enthusisgr,. e supporter of all the criteria k
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ll ALDERSON REFORTING CC,MPANY. INC.
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in Part 10.
Some of the particular ones that have been mentioned 2
obviously are the ones that one thinks about.
I think as a set 3
of criteria, the can serve in this case.
I would look for us not
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conforming to a government-wide set of criteria.
For my own part, s
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I am prepared to go ahead and vote now, or when you reopen the d
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meeting, or tomorrow, or whenever you can gathter the clan to ic 10 the issue to go ahead for fuel cycles wich the proposition that 3_
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12 alternate fuel cycle rule, enclosure B to SECY 79 --
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13 CHAIRMAN AHEARNE:
Anyone else with issues on the
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Peter?
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15 COMMISSIONER BRADFORD:
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. CHAIRMAN AHEARNE:
Unless you are basically saying that 2
we are a very small portion of the people to be covered, that we 3
are relying on the DOE system?
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I think staff's recommendation to adhere g
5 to the criteria, the existing government-wide criteria was made 9e I
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It was based on their notions R
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of that constituted the threat.
I think they had notions of what 8
8 the threat constituted before that study was done.
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10 MR. SHAPAR:
The original predicate of the rule was a 3_!
II strong feeling on the part of the Commission that there was an 3
E" 12 insider threat that had to be dealt with, how specific it was at
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5 I4 COMMISSIONER BRADFORD:
As I understood the staff posi-15 tion -- correct me if I'm wrong -- it has been an evolving one.
g 16 ;i Their initial position was that they were bound as a matter of s
N l7 law to adhere to the criteria.
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I8 MR. SHAPAR:
That was not the main predicate of the C8 19 g
staff position.'
It was not predicated on that legal positica.
n 20 l They vould have reached it independently.
That is a mischaracteri-2I zation.
22 COMMISSIONER BRADFORD:
The board decision, at least, i
23f does state -- take tha opposite position.
I gather, in fact, they i
24 do it by quoting a staff witness.
25f Okay.
Well, if that is a mischaracterization, I guess t
ALDERSON REPORTING COMPANY. INC.
22 bfm23 1
it helps.
On the other hand, the record which is going to be 2
defending this in a court is at least confused.
It may be clear 3
the other way.
4 MR. SEAPAR:
It is confused.
You are perfectly right.
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COMMISSIONER BRADFORD:
What I thought I heard earlier n9
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this morning was that the staff position, since the board had i
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wrapped the matter up and presented its report, had reached a N
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9 as they were; but that that conclusions explicitly depended on
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Bob?
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I2 COMMISSIONER 3RADFORD:
I think it was Bud that I heard
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I4 l MR. EVANS:
We feel that the insider threat confirmed
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One of the major motivations was greed.
Some of i
N 17 these criteria deal with trustworthiness, deal with the aspects x
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2 18 1 of indebtedness proclems, doing things to employers that would h
I9 l take them outside of the bounds of trustworthiness.
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20 l You may find that scmeone had stolen something from 21 a lawyer, but had not been convicted of that; that had been I
22 I dismissed.
That would not be nicked un. under some sets of criteria; j
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n w ereas, it woulc uncer enese.
l 24 There cre other examples along this line.
i 25l MR. BURNETT:
Also, we are not saying that, like your-t I
I 23 bfm24 1,self, we do not have some difficulties in today's environment 1
l 2
with some of these criteria.
3 OPM under the direction of the President, is looking at
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Other agencies are voicing the same concerns that we have 3
5 voices here.
We did not think we could resolve that --
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COMMISSIONER 3RADFORD:
Don't we have somewhere in this
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material something that says that the OPM review is more er less M
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dead in the water?
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I read so much in the. last 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.
Scmewhere in here 2
10 there is --
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MR. BRADY:
I think that the four year old one was dead k
j 12 in the water, but now it has resurfaced again.
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MR. BURNETT:
We just did not feyl we could resolve m
5 I4 these far reachine.. national c. oliev. c.uestions, and that OPM was M=
15 working on it.
So, the staff position was to go witn the current c
16 national policy.
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17 If they ccme cut with new criteria, of course, the 2
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18 staff would adept them.
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19 MR. BICKWIT:
I think I should add that -- I think that n
20 i is a perfectly rational position.
I 21 22 1 1:
23l CHAIRMAN AHEARNE:
Scb?
1 24l MR. ERICKSON:
A point here is worthy of consideration i
I 25 I by the Cc==issicn.
The Department of Enere.v. last v. ear c.ublished I
3
24 ibim25 I
its criteria and program for clearance for persons having access 2
to unclassified special nuclear material.
3 This was to clarify what had been a confusion in the
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4 past where they had mixed a program that generally in the past 4
5 had always covered classified information and materials.
Now, we N+
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have gotten into this area.
They had to also clarify it.
SS 7
They put forth in the Federal Register, and invited 3l 8
public comment on their program for clearing persons for access d
9 to unclassified SSNM.
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10 They received no public comment.
They published the E
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I2 COMMISSIONER KENNEDY:
Is it consistent with Part 10?
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13 MR. ERICKSON:
Yes, sir.
This was last year.
I did
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I4 not come prepared with the references.
They certainly can be
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15 checked out, but if what I said is correct, I think this weighs
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CHAIRMAN AHEARNE:
Len, do I have to reopen the meeting B
E 18 to take a vote?
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BICKWIT:
No.
I do not know whether there is any-n 20f one waiting outside, though.
2I CHAIRMAN AHEARNE:
If we have finished the criteria --
22l COMMISSIONER BRADFORD:
Can we adopt a rule in a closed t
23 ' meeting?
24 MR. BICKWIT:
Yes, you can.
i 25 CHAIRMAN AHEARNE:
I would propose to repoen the meeting, t
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if we have finished the criteria subject.
2 COMMISSIONER SPADFORD:
Yes.
3 CHAIRMAN AHEARNE:
You can open the decr, Sam.
l 4
(Thereupon, at 11:50 a.m.
the meeting in the above-I 5
entitled matter was adjourned, and resumed th a public meeting.)
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.,3 NUCI. EAR REGU.ATRY CCDCSS!CN in the =at er Of:
Discussion of Hearing Board Report on Clearance Rule
-CLOSID SESSION-Date of ?receecing:
June 24, 1980 Docket Nu=ber:
.Slace of ?rc'ceecing:
Washington, D. C.
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