ML20147A963
| ML20147A963 | |
| Person / Time | |
|---|---|
| Issue date: | 01/15/1987 |
| From: | Zech L NRC COMMISSION (OCM) |
| To: | Bush G SENATE |
| References | |
| NUDOCS 8801150110 | |
| Download: ML20147A963 (11) | |
Text
,8 .
k e +f o, UNITED 5TATES e e NUCLE AR REGULATORY COMMISSION
, a wassiNotoN. o. c. aosss
%,,,,,/ .
l&" 5 cwaiwAN January 15, 1987 4
)
Ine Honorable George H. W. Bush President of the United States Senate Washington, D.C. 20510 l
Dear Mr. President:
Enclosed is a Nuclear Regu'atory Comission legislative proposal in the form of a draft bill which wculd amend Section 147 of the Atomic Energy Act of 1954, as amended. The' bill would clarify that the Comission is authorized to protect from public disclosure certain categories of sensitive generic safeguards information when disclosure could compromise or negate site-specific security measures required by the Comission to protect nuclear materials and facilities against theft, diversion or sabotage.
In the Comission's 1980 Authorization Act, Congress added Section 147 to the Atomic Energy Act. In that section Congress provided important protections against unauthorized disclosure of a licensee's or applicant's sensitive information relating to the security of specific nuclear facilities and special nuclear materials. The provision exempted such infomation from required disclosuf a under the Freedom of Information Act. In implementing Section 14? Ond the underlying congressional intent to preclude release of iv,omation that would be likely to threaten the security of nuclear fdcilities and materials, the Comission discovered an ambiguity in Section 147 which relates to its authority to withhold generic information that would be likely to endanger specific safeguards measures implemented by NRC licensees. Accordingly, the Comission is seeking clarifying legislation which would eliminate the ambiguity and ensure that such sensitive generic safeguards information can be protected.
A draft bill (Enclosure 1), an analysis of the draft (Enclosure 2),
comparative text (Enclosure 3), and a memorandum explaining in greater detail the need for the legislation (Enclosure 4) are provided.
Sincerely, 8801150110 070115 PDR COMMS N R h CORRESPONDENhC g Lando W. Zech, r.
Enclosures:
- 1. Draft Bill
?. Analysis of Proposal
- 3. Comparative Text 4 Memorandum
A ENCLOSURE 1 DRAFT BILL To amend the Atomic Energy Act to clarify that the Nuclear Regulatory Commission is authorized to protect from public disclosure certain sensitive generic safeguards infor-mation, the disclosure of which could negate or compromise site specific security measures.
Be it enacted by the Senate and the House of Representa-tives of the United States of America in Congress assembled, that:
Section 147 of the Atomic Encrgy Act of 1954, as amended, is hereby amended by inserting the following language in subsection a. before the sentence that begins "The Commission shall exercise the authority of this subsection - ':
Paragraphs (1), (2) and (3) of this subsection shall include safeguards information contained in generic studies, reports and analyses that would provide substan-tial assistance in compromising or negating any of a licensee's specific security measures or procedures to protect nuclear material or facilities, as described in subparagraphs (1), (2), and (3) of this subsection, or ir.
targeting a licensee's vital plant equipment as described in subparagraph (3) of this subsection
J EtlCLOSURE 2 SECTION ANALYSIS The purpose of this amendment is to clarify that the Commission is authorized to withhold from public disclosure certain categories of sensitive generic safeguards information when its unauthorized disclosure could compromise or negate site-specific security measures required by the Connission pursuant to its statutory functions to protect NRC licensed nuclear materials and facilities against theft, diversion or sabotage.
I 4
._ _ . _ . ~.. _-.
E!! CLOSURE 3 COMPARATIVE TEXT "Sec. 147. Safeguards Information.--
"a. In addition to any other authority or require-ment regarding protection from disclosure of information, and subject to subsection (b)(3) of section 552 of title 5 of the United States code, the commission shall pre-scribe such regulations, after notice and opportunity for public comment, or issue such orders, as necessary to prohibit the unauthorized disclosure of safeguards information which specifically identifies a licensee's or applicant's detailed--
- (1) control and accounting procedures or security measures (including security plans, proce-dures, and equipment) for the physical protection of special nuclear material, by whomever possessed, whether in transit or at fixed sites, in quantities determined by the commission to be significant to the public health and safety or the common defense and security;
"(2) security measures (including security pisns, procedures, and equipment) for the physical prctectior, of source material or byproduct material, by whomever possessed, whether in transit er at fixed sites, in quantities determined by the commis-sion to be significant to the public health and safety or the common defense and security; or
2
"(3) security measures (including security plans, procedures, and equipment) for the physical protection of and the location of certain plant equipment vital to the safety or production or utilization facilities involving nuclear materials covered by paragraphs (1) and (2) if the unauthorized disclosure of such information could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of theft, diversion, or sabotage of such material or such facility. Paragraphs (1), (2), and (3)_,
of this subsection shall include safeguards information contained in generic studies, reports and analyses that would provide substantial assistance in compromising or negating any of a licensee's specific security measures or procedures to protect nuclear material or facilities, as described in paragraphs (1), (2), and (3) of this subsection, or in targeting a licensee's vital plant equipment as described in paragraph (3) of this subsection. The Commission shall exercise the authority of this subsection--
- (A) so as to apply the minimum restrictions needed to protect the health and safety of the public or the common defense and security, and
3
"(B) upon a determination that the unauthorized disclosure of such determination could reasonably be expected to have a significant adverse effect on the health and safety or the public or the common defense and security by significantly increasing the likelihood of theft, diversion, or sabotage of such material or such facility.
ENCLOSURE 4 LEGISLATIVE MEMORANDUM IN SUPPORT OF PROPOSED BILL The proposed amendment would modify Section 147 of the Atomic Energy Act of 1954, as amended, to clarify that protection is authorized for certain categories of sensitive generic safepuards information when its unauthorized disclosure could compromise or negate site-specific security measures required by the Commission pursuant to its statutory functions to protect licenseu nuclear materials and facilities against theft, diversion or sabotage.
The Nuclear Regulatory Commission's 1980 Authorization Act ame,fid the Atomic Energy Act to include a new Section 147, Saraguards Information, codified at 4 U.S.C. 2167. See
?.L.96-295, 94 Stat. 780 (June 30, 1980). In that section ti Congress provided important protectionr, against unauthorized disclosure of a licensee's or applicant's sensitive information related to the security of specific nuclear facilities and special nuclear materials. The provision exempted such information from required disclosure under the Freedom of Infornation Act. Congress considered but did not enact a broadly written provision for withholding generic information on safeguards matters from public disclosure.
Since the enactment of Section 147 the Commission has developed experience in implementing the Congressional intent to preclude release of information that would be likely to l
l l
l
4 A
2 thr aten the security of nuclear facilities and materials regulated by the commission. As a result of its experience, the commission is aware of an ambiguity in Section 147 relating to the Commission's authority to protect from public disclosure generic information that would be likely to endanger specific safeguards measures implemented by NRC licensees.
In its Diablo Canyon operating license proceeding the Commission determined that certain generic information regarding the design basis threat, specifically, that part of the design basis threat relating to the number of armed adversaries against which security plan characteristics are developed was an integral part of the licensee's security plan. The Commission further determined that release of that information would reasonably be expected to provide substan-tial assistance in overcoming specific detailed security measures provided in the licensee's security plan for the Diablo Canyon facility, thus significantly increasing the likelihood of unlawful entry and sabotage of that facility.
In that light the Commission decided that the information, although nominally generic, was properly considered a detailed portion of the applicant *= plan and that the Commission was authorized by Section 147 to protect it. See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2,) CLI-82-19, 16 NRC 53, July 30, 1982.
e 3
The Commission believes that its interpretation of section 147 is correct. Moreover, an interpretation contrary ,
i to the Commission's administrative interpretation could negate the important protections provided by Congress for a licensee's or applicant's detailed safeguards information as defined by paragraphs (1), (2) and (3) of Section 147.
Accordingly, the Commission is presenting a legislative initiative that would explicitly codify its authority to withhold and protect generic information of the nature discussed.
Other considerations strongly support amending Section 147 to provide explicit protection for sensitive generic safeguards information, the release of which would be likely to endanger special safeguards measures implemented by NRC licensees. As explained more fully below, the lack of explicit authority has the potential to deter the NRC from conducting safeguards research and studies and could serve to negate protections granted by Congress to the Department of Energy (DOE), the other federal agency with domestic nuclear safeguards responsibilities.
Recognizing the ambiguities in Section 147, the NRC has been concerned regarding the pursuit of generic research related to sabotage vulnerabilities lest an unfavorable judicial interpretation render NRC unable to protect the research reports, studies and analyses from public disclosure.
4 4
This situation is inconsistent with the national interest in augmenting safeguards. Moreover, it prevents the economies that could be achieved by generic consideration of safeguards problems that occur at several facilities.
In addition, it appears that without clarification of Section 147, a federal court which disagreed with NRC's interpretation of Section 147 could order the NRC to release security-related information similar or identical to that being protected by DOE pursuant to Section 148 of the Atomic Energy Act, enacted December 4, 1981. See P.L. 97-90, Sec. 210. Even though it could be argued that NRC safeguhrds information is not as sensitive as DOE information because DOE facilities are of greater national security significance, public disclosure of certain sensitive generic safeguards !
information relative to NRC facilities would be of substantial assistance to one who contemplated sabotaging a DOE facility because the information might be identical. Accordingly, failure to amend Section 147 could significantly negate the Congressional purpose in enacting Section 148.
The proposed Ian age would provide the necessary clarification by amending Section 147 to provide protection for safeguards information contained in generic studies, analyses and reports where the release of that information would provide substantial assistance in compromising or negating any of a licensee's specific security measures or l
1
5 procedures as described in subparagraphc (1), (2) and (3) of that section as enacted or in targeting for malevolent action a licensee's vital plant equipment as described in subparagraph 3 of that section as amended. Because the language of the proposed amendment is closely related to the protections already enacted by Congress this amendment will not, if enacted, significantly increase the ability of the commission to withhold information from the public, while it will serve to prevent the disclosure of information that, if released, could negate the protections that the Congress has already determined to be necessary.