ML20012F649

Forwards Documents for Regulatory History Package (AD28-2) Re Final Rule to Amend 10CFR11,25 & 95, Credit Checks - Expanded Personnel Security Investigative Coverage, Published in Fr on 900329

ML20012F649
Person / Time
Issue date:	04/13/1990
From:	Kidd D NRC OFFICE OF ADMINISTRATION (ADM)
To:	Lanham D NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
Shared Package
ML20012F650	List: ML20012F649 ML20012F651 ML20012F653 ML20012F654
References
FRN-54FR38863, RULE-PR-11, RULE-PR-25, RULE-PR-95 AD28-2-1, NUDOCS 9004180052
Download: ML20012F649 (2)

Text

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jg UNITE @ STATES NUCLE AR REGULATORY COMMISSION e

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MEMORANDUM FOR:

Donald H. Lanham, service Manager Document Control Unit Division of Information Support Services Office of Information Resources Management FROM:

Duane G. Kidd Assistant to the Director Division of Security Office of Administration

SUBJECT:

REGULATORY HISTORY PROCEDURES

" CREDIT CHECKS -

EXPANDED PERSONNEL SECURITY INVESTIGATIVE COVERAGE" HIn accordance with established procedures, enclosed are copies of the documents that are relevant to the final rule to amend 10 CFR Parts 11, 25, and 95, " Credit Checks - Expanded Personnel Security Investigative Coverage," that was published in the Federal Reaister on March 29, 1990.

If you have any questions please call ne on.X24127.

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'Duane G. Kidd Assistant to the Director Division of Security

Enclosures:

As stated jgg41pg0529004j3 g

11 54FR30863 PDit

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INDEX TO REGULATORY HISTORY TOR THE FINAL RULE TO AMEND 10 CFR PARTS 11, 25 AND 95, " CREDIT CHECKS - EXPANDED PERSONNEL l

SECURITY INVESTIGATIVE COVERAGE j

IIIM DESCRIPTION DATI r

Letter for Secretary, NRC Comments on proposed rule 10/29/89 from Donald R. Lightfoot Letter for Secretary, NRC Comments on proposed rule 11/15/89 f

from United Association l

Local No. 50, Plumbers and Steamfitters Union l

Letter for Secretary, NRC Comments on proposed rule 11/17/B9 t

from Washington Legal Foundation l

Letter for Secretary, NRC Comments on proposed rule 11/20/89 from Northwestern Ohio Building and Construction Trades Council i

Memorandum for D. Kidd from Amendments to 10 CFR Parts 11, 01/26/90 l

D. Meyer, w/ enc 1 25, and 95 to expand the i

personnel security investigative coverage and revise fee schedules Memorandum for J.

Taylor Amendments to 10 CFR Parts 11, 03/21/90 f

from P. Norry, w/ enc 1 25, and 95 to expand the personnel security investigative coverage and revise fee schedules i

Memorandum for D.

Kidd from Regulatory History Procedures 04/03/90 H. Losar, w/ enc 1 Credit Checks Expanded Personnel Security Investigative

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Coverage i

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i secretary kN " '

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Washington D.C.

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Attention: Docketing and service Branch

Dear Commission Members,

l I have been.In the Nuclear Power Industry for 20 years f

and have always supported greater involvement by the NRC into commercial nuclear power generation matters.

However, after l

reading your proposal to require that credit checks be performed for personnel having access to nuclear power l

generation plants, I find that I am unable to support your current propsal.

P I feel the current Titness Tor Duty policy scheduled to go into effect in January, 1990, should be able to uncover the person who would be subject to blackmail or coercion.

I also believe that the current MMPI exam would and should i

uncover any aberrant behavior, thus providing the same l

results.

l In conclusion, I an opposed to your new proposal to i

require credit checks as I feel a program is already in place to give the same results without burdening the licensee's with more expense and without the preception that " Big Brother" is watching.

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Sincerely, l

Mk Donald R. Lightfoot-I f

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Secretary U.S. NUCLEAR REGULATORY COMMISSION Washington, DC 20555 Attention:

Docketing and Service Branch

Dear Sir / Madam:

j This comment is being submitted on behalf of the United i

Association Local No. 50 Journeymen and Apprentices of the j

Plumbing and Pipefitting Industry of the United States and Canada 3

(hereinafter " Local 50") regarding the Proposed Rules promulgated j

by the Nuclear Regulatory Commir,sion (hereinafter "NRC") con-cerning the NRC's proposal to amend its regulations to expand l

investigative scope for licensee "R" special nuclear material f

access authorization and "L" security clearance applicants by adding a credit check and correspondin y revising the fee to i

cover the additional cost for each cro t check.

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i Local 50 is comprised of approximately 1,200 men and women who reside and work in Northwest Ohio.

Approximately one-l half of its members work at various nuclear power stations in Northwest Ohio and Southeast Michigan.

It4 addition, Local 50 refers out many other individuals of the United Association, its e

parent International Union, who are members of other locals to nuclear power stations within the geographic jurisdiction of Local 50.

Local 50 and its members have performed a great deal of work on various nuclear power stations and in particular the Davis Besse Nuclear Power Station owned and operated by the Toledo Edison Corporation and its parent organization Centerior Energy Corporation.

Based upon.the work of its members and its involve-I ment as the labor organization, Local 50 opposes the NF.C's proposed amendments.

This opposition is based upon several j

reasons.

l l.

l

U s. Nuclear R gulatOry Commicsion November 15, 1999 Page 2 i

First, Local 50 believes that such credit checks are an undue intrusion in its members' personal affairs and violates j

their rights to privacy.

The proposed rule making is expansive and I

does not limit the credit checks ;o any particular period of time i

(for example, within the last year) or financial institutions.

In addition, it does n6t limit the credit checks to individuals who will be working at nuclear power stations for extended periods of i

time.

Over the many years that Local 50 has referred individuals t

to nuclear : power stations, individuals average less than two months on t1e job.

To allow credit checks for individuals who work short periods of time are too persuasive and unnecessarily l

burdensome.

secondly, one of the reasons indicated by the NRC in l

favor of its roposed rule making is to determine if individuals arefinancial$yinsecurewhichmaymakethemsusceptibletocom-I mitting espionage or similar activities against the United States.

i Local 50 members are construction workers and do not have access to plans, details, procedures or methods which are secret or classified in nature that could harm the United states.

Local 50 members perform mechanical construction work and the work that th6y perform at nuclear power stations is, in theory, not that different from other mecaanical work that they perform on non-nuclear power stations.

Since the members of Local 50 would not have access to such secrets and therefore not be susceptible to i

espionage, there is no reason to burden the individuals with credit checks that would result in their privacy being invaded.

The proposed rule does not differentiate between long and short term employees.

Thirdly, a second reason given by the NRC is that l

" individuals who have financial difficulties may be an indicator i

or result of more serious problems such as drug abuse, alcohol l

abuse or dishonesty".

This bald statement unsupported by any fac-tual evidence, scientific studies or documentation is overbroad and unreliable.

In addition, as stated above, the Local 50 mem-i bars are mechanical construction workers.

They are closely super-vised and work under the scrutiny of not only the supervisors of the contracting company by which they are employed, but also engi-(

neers and supervisors of the owners of the nuclear $ hey would so ower station.

It is not practical that Local 50 members, even if i

chose, would be employed while involved in any drug abuse, alcohol abuse or dishonesty.

If the Local 50 members do become involved in such improper activities, there are ample ways of discovering this because of the close scrutiny under which Local 50 members j

work.

There are better ways to identify those problems rather than requiring all of the employees who perform work on the nuclear power stations to subject themselves to financial credit checks.

}

U.S. Nuclear Regulatory Commission November 15, 1999 Page 3

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Fourthly, the NRC has failed to establish any need for i

this information.

There has not been any indication by the NRC

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that espionage has been committed by construction workers in general or United Aysociation members in particular on any nuclear power station.

In addition, there har not been any supporting evidence that construction workers have been found to k drug abu-sers, alcohol abusers or dishonest.

To establish these require-monts of credit checks on individuals who have performed ably and I

loyally on various nuclear power stations is unnecessary.

Fifthly, the proposed rule does not indicate how the l

information obtained from the credit checks will be kept confiden-tial.

The information gained from credit checks is personal in nature and individuals who obtain that information saould be under strict requirements to keep the information private.

sixthly, the NRC proposes to increase the fee of the licensee in order to pay for tais additional cost.

This addi-tional fee will then in turn be passed on by the licensee to the consumer.

When this additional cost is passed on to its custo-l mers it will include individuals and businesses.

This will cause greater expense to business manufacturers in the cost of producing their product as well as an additional financial burden on indivi-duals.

Local 50 and its members are strong proponents of ensuring i

that the United States and its manufacturers remain competitive.

i By increasing the expense to doing business by manufacturers will lead to a continuation of the erosion of the manufacturing l

strength of this country and lead to greater foreign imports by i

manufacturers of foreign nations.

The NRC should not burden con-sumers to pay for unneeded credit checks, i

e J'

For all the reasons stated above, Local 50 objects to 1

the proposed rule making.

Local 50 believes:

i 1.

That this is an invasion of privacy of the workers on nuclear power stations; j

2.

That the proposed requirement of the credit checks

[

is overbroad as it includes all workers even though construction workers do not have access to infor-mation which is secretive, are closely supervised and any action taken by construction workers can be easily identified by others without the necessary of credit checks; 3.

That there is no factual evidence or documentation to support the proposed requirement to show a direct correlation between unfinancially secure individuals and espionage, drug abuse, alcohol abuse and disho-nesty.

.n

l U.S. Nuclear Regulatory Commission l

November 15, 1989 Page 4 4

I 4.

That the proposed rule making is unnecessary and the NRC has not established any need for this additional requirement; l

o l

5.

There*are no procedures to ensure that the infor-motion obtained through the credit checks will be kept confidential.

6.

This additional cost will ultimately be passed on to the individuals and manufacturers thereby creating unnecessary financial burden on them and weakening the manufacturing strength of this nation.

i If you desire any additional information concerning this, please contact me.

Thank you for your attention to this.

}

4 s ncerely, lM Dave LaPlante Business Manager JJA/DL/pnr cc John Glenn, United States Senator l

Howard Metzenbaum, United States Senator Marcy Kaptur, United States congress i

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WASlHNOTON LEGAL FOUNDATION mqn-i

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Secretary I

k U.S. Nuclear Regulatory Commission (I

i Attn: Docketing and Service Branch Washington, D.C. 20555 l

l Res Proposed Amendments to 10 C.F.R. 55 11, 25 and 95 54 Fed. Reg. 38863 (September 21, 1989) Docket i RIN 3150-l AD28 i

To the Members of the commission l

The Washington Legal Foundation (WLF wishes to express its f

support for the proposed amendments to 10 )C.F.R. $$ 11, 25 and 95

-M (54 Fed.

Reg.

38863 (September 21, 1989))

involving the authorization of credit checks for persons seeking NRC

• L' and

'R' security clearances. WLF is a non-profit, non-partisan public j

interest law and policy center with 120,000 members and supporters l

nationwide. WLF engages in litigation and participates in the administrative process regarding matters which af feet the broad i

public interest and welfare, i

i In particular, WLF has devoted a substantial portion of its

[

resources to supporting a strong national security apparatus. WLF i

has appeared as amicus curiae in many cases dealing with the j

security and defense of the United States, including United States

v. Whitworth, No. CR 85-552 JV (N.D. Cal 1985) (trial of a former l

Navy petty officer accused of espionage for the Soviet Union).

Based on our experiences in the national security field, WLF wholeheartedly supports all efforts to more closely monitor the access of individuals to important national security information i

and materials. Massive security breaches over the past several years have not occurred because of the ideological or political convictions of the traitors, but rather because of the lust for i

money. Hostile intelligence organizations offering large sums of money have successfully procured classified information from

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individuals with security clearances.

i This being the case, the risk is certainly higher that a person having serious financial problems would engage in a secrets-I for-money swap than would a person without financial problems. By permitting the NRC to conduct credit checks into applicants for 'R" and "La clearances, potentially disastrous events can be avoided before they ever occur.

Clearly, the trust and responsibility that the Government l

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places upon an individual when granting a security clearance should in part be based upon that individual's conscientiousness and 4

honesty when dealing with others, including financial institutions.

j Persons who habitually fail to live up to the legal requirements of borrowing and repaying money are very likely to be less honest i

and' reliable than those who make good-faith efforts to live up to i

the terms of their loans. Er does not mean to imply that persons

[

who have had credit problems because of divorce, illness or unemployment should automatically be denied access to security l

clearances. In some cases, unfortunately, persons simply fail to repay loans without any good reason. The reliability and integrity of such deadbeats should be weighed by the NRC when making decisions about security clearances.

j i

very of ten, credit problems are a symptom rather than a disease. Alcoholism and drug addiction often lead to very serious financial problems. By allowing NRC to investigate into clearance l

applicants' credit histories, other derogatory information may come to light in a way impossible under the current system of making only a National Agency Check. No reasonable person can argue that drug addicts and alcoholics are deserving of the trust of the l

Goverrunant to keep secure the nation's sensitive information and i

materials.

The use of credit checks in uncovering deeper e

indications of unreliability among clearance applicants would be a valuable tool.

l Access to our nuclear f acilities by terrorist groups, the loss f

of state secrets to hostile intelligence organizations and potentially the very safety of our nation is at stake when an

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unreliable or dishonest person is given a security clearance. NRC I

has wisely sought to broaden the scope of the investigations t

performed on applicants for security clearances. Er strongly supports the adoption of the proposed amendments.

l Respectfully Submitted,

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Daniel J. Po eo V

General Counsel j

1 tw :,v Paul D.

menar Executive Legal Director l

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Christ pher A. Sterbe z Legal Clerk t

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cronoE RAY MEDUN,JR November 20, 1989 renam

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l Al.t.AN J EEOUR v.<e treedent Secretary l

United States Nuclear CtkA1.D R HAM.

a,e rew srce, seer Regulatory Commission l

RAYuoNo sCHl.AGHECK Washington, D.C.

20555 j

securserysunn,rer Attnl Docketing and Service Branch THOM AB F.J ACORS scree. ofArms Tw^*8" Re:

Proposed Rule (s) Which Seek to Expand the Investigative Scope for Security Clearance clu REDO HINOJOSA trw,

Applicants by Adding a credit check ROGER KERNER Trusee i

Dear Sir or Hadan t

I as the Executive Secretary-Business Manager for the i

Northwestern Ohio. Building and construction Trades Council i'

(hereinafter referred to as the " Council").

The Council is an affiliation of labor organizations in the building and i

construction industry in the Northwest Ohio area.

The Council serves as a channel for the voicing of opinions and comments on legislation, public policies and other matters i

i l

which impact or otherwise have an offact upon working men l

I and Women who depend upon the building and construction industry for their livelihoods.

In this regard, through the I

various unions which compose the Council, the Council serves as a

united voice for approximately ten thousand (10,000) building trades men and women in the Northwest Ohio area.

l t

A substantial number of the members of unions l

affiliated with this Council work for employers who perform building and construction work at the Davis-Besse Nuclear Power Station in Port Clinton, Ohio.

Thus, it is these men and women who will bear the brunt of any rules or j

regulations which seek to expand the investigative scope for 1

I security clearances by adding a credit check.

In this regard, I have recently become aware that the Nuclear Regulatory Commission has proposed to amend its existing regulations to expand the investigative scope for "L"

security clearance applicants by adding a credit check l

l and investigation into the financial situation of employees working for contractors performing work at nuclear power AnWM>- yp -

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i plants.

Saa 54 Fed Reg. 38863 (September 21, 1989).

The Nuclear Regulatory Commission (hereinafter referred to as J

the "NRC") has attempted to justify the proposed rule by

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stating that "the credit check is necessary to achieve a higher degree of assurance that... licensee applicants are

reliable, trustworthy, and do not have any significant financial problems which may cause them to be susceptible to i

pressures, blackmail or coercion to act contrary to the i

national interest." Id. at 38863.

The NRC goes on further to state that

"(ijn view of recent espionage for money cases, it is important to identify those individuals who i

have serious financial difficulties and are, therefore, more i

susceptible to committing espionage or similar activities against the United States. Id. Finally, the NRC states that based on actual experience it has found that "an individual's financial difficalties may be an indicator or result of other more serious problems such as drug

abuse, f

alcohol abuse or dishonesty."

Id.

l While the Council and its affiliated unions are ep ally concerned with and in no way condone drug use in the workplace, espionage and/or terrorism, it is the Council's position that the addition of a credit check requirement t

for employees of contractors at nuclear power plants goes l

far beyond the bounds of permissible government inquiry.

Specifically, it is the Council's position that the proposed

'l rule constitutes an undue and arbitrary infringement upon i

the rights of members of unions affiliated with the Council to privacy and/or to keep certain aspects of their lives private.

Furthermore, it is the Council's position that t

the proposed rule is irrational in that there is no standard which would determine what degree of financial debt would place an employee at risk.

Moreover, the Council believes that the proposed rule, as stated in the NRC's supplementary j

information in 54 Fed. Reg. 38863, would stamp individuals with finaocial debt as being espionage

agents, terrorists, 6

drug

abusers, alcoholics, or simply dishonest. Thus, The t

Council believes that the proposed rule amounts to NRC overkill;

and, believe that the following discussion supports the Council's position.

It is well established that there are certain personal rights which are

" implicit in the concept of ordered i

liberty" and that are so fundamental that the " shadows" cast i

by the several provisions of the Bill of Rights provide then with constitutional protection.

Ems

32gi, Palco v.

Connecticut, 302 U.S. 319, 325 (1937) ; Roe v. Wade, 410 U.S.

113, 152-153 (1973); Whelan v. Rowe, 429 U.S. 589, 598 n.23 4

(1977).

One of the personal rights which is entitled to

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i constitutional protection is the a right to privacy".

gas ghelan v.

Rowe, 429 U.S.

589, 599-600, 605-606 (1977).

Egg 5

alan stanlev

v. Georaia, 394 U.S. 557 (1969).

Implicit in f

the right to privacy "is the individual's interests in j

avoiding disclosure of personal matters."

Ega Whelan, 429 U.S.

at 599.

In Whelan v. Rowe, the United states supreme

}

Court fecognized, "the threat to privacy implicit in the i

accumulation of vast amounts of personal information in computerised data banks or other massive government files."

l Id. at 605.

Indeed, the United states supreme court has recognised that even the Presidents of the United states are I

"not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity,"

includin

" matters 6

concerned with family or personal finances."g Nixon v.

Administrator of General Services, 433 U.S. 425, 457 (1977).

I other courts have also recognised the existence of a

[

right to privacy in personal matters which is an interest protected by the United states Constitution.

Esa argt, Barry v.

City of New York, 712 F.2d 1554 (2nd Cir.) gart

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denied, 464 U.S.

1071 (1983) (financial information); Plants l

v.

Gcazalez, 575 F. 2d 1119 (5th Cir. 1978), cart denied, 439 U.S.

1129 (1979) (personal financial information);

Ut&&

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v.

Westinahouse Electric Corp _ _,

638 F. 2d 570 (3rd Cir.

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1980) (medical information) ; Dow v. Webster, 616 F. 2d 1226 i

(D.C. Cir. 1979) (criminal record); paesar v. Mountanos, 542 j

i l

F. 2d 1064 (9th Cir. 1976) cart denied, 430 U.S. 954 (1977)

(patient's communication of psychotherapy).

+

l It is clear, then, that individuals have a right to the i

privacy in personal

matters, and, this right to privacy which is of constitutional dimension.

This right to privacy certainly includes the right to avoid disclosure of l

financial matters.

Esa Barry v. City of New York, 712 F.2d 4

r l

1554 (2nd Cir.

1983);

Plante v. Gonzalez, 575 F. 2d 1119 i

(5th Cir. 1978).

l t

In light of the recognized right to privacy in financial matters, the NRC's proposed rule unnecessarily and arbitrarily impinges upon this right.

To assume that persons with debt may be susceptible to

" pressures, i

blackmail, or coercion" is akin to assuming that persons of Irish ancestry are susceptible to pressures from the Irish I

Republic Army and/or that persons of Puerto Rican ancestry are subject to pressures from the National Armed Liberation l

Front and/or that persons of Arabic ancestry are subject to l

l pressures from the Palestinian Liberation organization.

i certainly, such assumptions cannot be made.

Likewise the I

proposed rule is irrational because it assumes that persons who have financial problems are not reliable and

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i trustworthy, while it assumes that persons who do not have such financial problems are reliable and trustworthy.

In 1

this

regard, there is simply no connection between i

reliability and truthfulness and financial matters.

Indeed,

)

it is the Council's belief that the NRC would be hard pressed,to demonstrate any correlation between financial condition and reliability and trustworthiness.

Indeed, it is my understanding that the owner of the Davis-tesse j

Nuclear Power Station, the Toledo Edison Company, has a very j

substantial debt.

Notwithstanding this

debt, I

do not j

believe that the NRC has had any reason to not credit the reliability and trustworthiness of Toledo Edison.

l As I mentioned earlier, the proposed rule is simply an j

administrative overkill.

Any questions which may exist f

regarding the reliability and trustworthiness of an individual can already be identified through the presently i

existing background investigations which are required by NRC I

regulat:.ons.

These thorough investigations can readily identify individuals who have a background which may make them questionable security risks (h,

drug

abuse, political sympathies, etc).

i In sun, while the Council sympathises with the security l

concerns expressed by the NRC, the Council cannot endorse j

i the NRC's position that Americans shed their constitutional rights at the doorstep of a nuclear power plant.

There is no rational reason, much less a compelling one, which would require an individual to disclose potentially embarrassing j

financial debts solely because the NRC believes that persons with debt problems are to be branded as security risks.

This is especially so when the Council does not believe that the NRC has any evidence that financial difficulty indicates i

susceptibility to disloyalty, drug

abuse, alcholism or i

dishonesty.

Thus, the council would object to the proposed rule and request that the NRC keep the views expressed in i

this letter in mind when deciding whether to make the proposed rule a final one.

Your cooperation in this matter is greatly appreciated.

If you have any questions or comments, please do not j

hesitate to contact me.

very truly yours,

)

NORTHWESTERN OHIO BUILDING AND i

CONSTRUCTION TRADES COUNCIL N

James Salisbury Executive Secretary j

. cp.

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._______.._.-.,___d

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