ML20148S616
| ML20148S616 | |
| Person / Time | |
|---|---|
| Issue date: | 07/24/1978 |
| From: | Advisory Committee on Reactor Safeguards |
| To: | Advisory Committee on Reactor Safeguards |
| References | |
| ACRS-1522, NUDOCS 7812040011 | |
| Download: ML20148S616 (108) | |
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- ADVIGORY COMMITTEE ON REACTOR GAFEGUARDS
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nue:J. An HEGULAmnY COW.MSION w.nmc v ou, o. c. m r. . hbbpb~ /8CMl
, WORKII:G COPY: June 6, 1978 MEETING DATE: February 22, 1978 CORRECTED COPY: July 20,1978 CERTIFIED: July 24,1978 WORKING CROUP 0!1. SAFEGUARDS AND SECURITY
- WASHINGTON, DC -
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FEBRUARY 22, 1978 ".; "ht h :kY%
The ACRS Working Group on Safeguards and Security met in Room 1046 at 1717 y i5 H Street, N.U., Washington, DC at 8:30 a.m. on February 22, 1978 to discuss 4P,.gy
.the effectiveness of physical security measures for nuclear facilities. The W notice of this meeting appeared in the Federal Register on February 7,1978, M b.
pages 5119-5120. Copies of the Federal Register Notice and the Tentative 4 pf Detailed Schedule of discussions are attached (Attachments A and B, respcc- Dj56 tively). The only written statement received from the public was the KMC, MM Inc. study report and the only oral presentations by mcmbers of the public L were thoM by representatives of 141C, Inc. No written reports were issued or Q[.'.g[% y approved by the Working Group at this meeting. A draft report of "A Study to Assess the' Radiological Sabotage Potential of Operating Nuclear j Power Plants" by 1010, Inc. (copy of file in the ACRS office) formed the
-basis for the discussions with KMC, Inc. Copies of all handouts and
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visual aids are on file in the ACRS office. ?$$@;F
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6 Attendees f
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ACRS NRC Staff 5;p 4 S. Lawroski, Chairman J. Miller - NRR W i
- 11. Bender D. Chape11 - ILE y y[i .
L. Bush - I&E p J :.1
'J. Ebersole
.J. C. !! ark M. J. Gaitanis - NRR OM i W. F. Pasedag - HRR FF C. P. Siess J.11. Arnold C. Michelson, Consultant F. Pagano
- 11. L. Ornstein - E00 M .
S. .Noodcock, Consultant R. L Barnard - Meradcom J. C. McKinley, Staff (Designated W. M. Murphy - RCS Federal Employec) W. H. Immerman - RES INWE II. Alderman, Staff W. J. Ross - SB R0 M. J. Urizar - Consultant (LASL) gj g i
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Attendees Continued -
'. VJ4C, INC. PUBLIC D. F. Knuth L. B. Russell - Caltimore Gas & Elec.
J. E. ' McEwen J. A. Quinn - International Energy Assoc. Ltd. 3 J. M. Elliott - Int'l Energy Assoc. Ltd. J C A. Negin - Int'l Energy Assoc. Ltd.
L. B. Bean - CE
- R. A. Szalay - AIF l N. C. Shirley - GE S. Eaton - S&W S. Brewer - Public Service Indiana 1 D. J. Chin-- GPU Consultant T. J. '4yers - General Public Utilities
'W. Hartley - Ariz. Public Ser. Co.
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H. Tasher - Northeast Utilities
- p. A. Moeller - PSE&G E. Borella - Ebasco Services J. W. Davis - Duke Power Co.
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D. M. Crowe - Southern Company Services L. T. Gucwa - Georgia Power Co.
L. T. DeStefano - Bechtel Power Corp.
D. E. Moeggenberg - Consume rs Power D. A. Bixel - Consumers Power R. A. Rice - GPU R. Russo - GPU J. M. Pilant - NPPD R. J. Deneen - Phila. Elec. Co.
J. M. Maurer, Jr. - Duquesne Light H. M. liarquardt - Duquesne Light Executive Session (0 pen) 8:30 a.m.
..The Chairman determined that other members of the Working Group had no
-additional specific items they wanted added to the schedule of topics that
- were listed to be discussed.
?llecting Uith The NRC Staff (0 pen) 8:45 a.m.
l Dr. Lawrcski, Chairman of the Working Group, opened the meeting with a state-
. ment regarding the conduct of the meeting in accordance with the provisions of the Federal Advisory Committee Act and the Governnient in the Sunshine Act.
Mr. J. C. McKinicy was the Designated Federal Employee present.
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Experience Since Last licetig (!!RC) (0 pen)
Mr. Chapell, from the !!RC Office of Inspection and Enforcement (I&E),
reviewed the security experience since his last report (July 1977) to the tlorting Group. This experience represented a trend since the implementation of the flRC regulations embodied in 10 CFR 77.55. The results of ISE security inspections are shown in Slides 1 through 5.
It was noted that unannounced inspections result in about three times as many items of noncompliance as are found on announced inspections.
Since the last Subcommittee meeting (July 1977), the number of non-compliance infractions in the area of access requirements has become dominant over, but closely followed by, those relating to detection aids and physical protection. These three categories represent about 75% of all of the noncompliances. Becayse of concern regarding the potential for damage by an insider, the philosophy of free access to permit surveillance and maintenance is being supplanted by locked doors and controlled access. This presents the problem of what degcee of noncompliance does an unlocked interior door represent? Attachment C contains the Staff definitions of the degrees of noncompliance.
Mr. Chapell also noted that, currently, neither the corporate nor the contract guard forces are measuring up to the physical and mental standards the Staff would like to see achieved. He noted that there is about a 50% turnover in guard personnel each year. This, in part, was attributed to the low wage scale for guards; which is, in some cases, less than that for the janitors. fir. Cender expressed the opinion that part of the turnover problem is the lack of job security or advancement opportunity for guards.
fir. Chapell pointed out that the locations' that had the more stable guard forces had the higher wage scales and generally better performance.
fir. tloodcock remarked that this large turnover provides a large pool of individuals with an intimate knowledge of the nuclear plant layout and the security measures available to protect it. Mr. Chapell recognized the problem. Dr. Lawroski suggested that the problem of turnover be given attention and some recommendations developed to reduce the turn-over rate. '4r. Chapell pointed out that Appendix B to 10 CFR 73.55 will establish requirements for guard force qualifications and training.
lir. Chapell proceeded to review the security incidents that occur at licensee facilities. The majority of the incidents are bomb threats (see Slide 3). Moot of these are merely threats but a few do involve explosives (four since 1969). There have been two incidents of intrusion into protected areas but both appear to he innocent actions by individuals seeking aid following minor accidents. The licensees checked the stories and found no reason to doubt them. .
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Implementation of 10 CFR 73.55 (NRC) (0 pen) fir. f4 iller summarized the status of implementation of flRC P.cgulation 10 CFR 73.55. All licensees have submitted security plans, 40 out of 57 sites have been visited by IIRC and the security plans reviewed.
The plans are now to be revised based on the llRC cr mments. Additional meetings with the licensees are planned (see Slide: 6-10). To aid the teams making these reviews,' a series (18 to date) of review guidelines have been developed, their titles are listed on Slide 12. Copics of the guidelines themselves are attached to the. office copy of these minutes for those r. embers that would like to review them. These guidelines are not yet part of a Standard p.evice Plan but could be worked in during the next updating. Slide 11 identifies some of the problem areas identified thus far by the review.
Study to Assess the Padioloaical Sabota6e Potential of Operating l'uclear power Plants (l?iC, Inc. ) (0 pen) 11r. Knuth described the results of the above study which was sponsored by 24 utilities. The study looked specifically at sabotage by an " insider."
The study was motivated by the llRC'.s impicmentation of the "two-man rule" of 10 CFR 73.55. . In the study, no restrictions were placed on the insider with regard to skills required, tools available, or motivation required.
Ilr. Knuth indicated that the detailed study results were considered "proprictary" and, if KMC, Inc. had the authority, it would classify them SECRET. tiowever, the summary document and slides used in this portion of the meeting were unclassin ed.
Ilr. Knuth discussed the background leading up to this study and the study's go al s . lie also described the methodology used in the analyses and the reviews that were performed to assure the completeness of the analyses. lie reviewed the history of sabotage studies as they relate to nuclear power plants (Slide 14) as well as to ongoing studies in the ficid.
In respo'nse to a question by fir. Woodcock, lir. Knuth stated that neither he nor any of the staff performing the sebotage study had ever sabotaged a nuclear power plant or any other equipment.
The IMC study was intended to be a disciplined engineering approach that considered a number of factors including safety, operations, and mainte-ance. The objectives were to assess the degree of difficulty of conducting a successful sabotage action that would Icad to a substantial release of radioactivity, identify and evaluate the more likely sabotage scenarios, provide means for quickly evaluating any specific scenario, and to identify possible improvements in plant secruity which do not detract from plant safety or operabilit y, To achieve a substantial release of radioactivity requires a core melt, although lesser rel6ases could be achieved by meltinq spent fuel stored in the pool or by release of material (gaseous or liquid) in the radwaste systems. The UASit-1400 methodology was used to determine I
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'the scenarios that would lead to a core meltdown. The overall results frem any specific scenario would depend on a number of factors, including basic design resistance to sabotage, dedication and skill of saboteur, probability of detection and interdiction, and damage control measures.
The sabotage techniques were taken from the literature and from the knowledge of engineers at the plants.
The first step was to identify the systems and components necessary to prevent core melting then to determine what must be disabled to prevent the proper functioning o'f the system and finally the action required to disable the proper equipment. KMC, Inc. developed worksheets to catalog and list the components and attributes of those components. Based on this information l'?,C developed specific scenarios and these scenarics were evaluated to see if they were possible or plausible and finally what could be done to reduce the possibility .of sabotage. The study did show that sabotage could be accomplished from a few locations within the plant.
To cause a core melt one could cause a LOCA and fail the capability to make up water or you could fail the decay heat removal capability without a LOCA, or you could cause a transient after disabling its cor. sequence mitigat-ing equipment or you could cause a nuclear power excursion. The study also considered damage-control neasures that the plant operators might take.
For example, if an electromatic relief valve was caused to open to create a small LOCA, the operators could pull the fuse and close the valve.
14r. Knuth went through a simplified, fictional system and its analytical representation (see Slide 18). The system is represented by an electrical diagram ccntaining a number of contracts in a series-parallel arrangement.
Each set of contacts represents an action that a sabateur might take. To be successful, the saboteur must complete a circuit from one side of the diagram to the other. There are a number of different paths possible depending on which contacts (actions) he chooses to close. These electrical diagrams represent the logic diagrams used for each function studied.
Mr. Knuth showed typical work sheets (Slides 19-21) which identified the various wages and locations that typical components could be disabled.
After cataloging the equipment, KMC developed scenarios. From these scenarios they looked for common locations to minimize the number of places a potential saboteur would need to have access to. The also looked for means to sabotage equipment so that there would be no indication of malfunction displayed in the c itrol room.
tir. Ebersole suggested an analy s that would identify a few critical systems needed to assur core cooling an giving them maximum protec'. ion rather than
, trying to protect the entire plant.
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^ Mr. Knuth then described the efforts that 134C had made to assure complete-ness of its study (Slide 23). The scenarios were reviewed by utility representatives familiar with both pHRs and psWRs to assure they had been adequately covered. In addition, the methodology was reviewed by one of the UASH-1400 authors and by people from Sandia Laboratory. WC holieves it has made an exhaustive revieu and identified the major scenarios.
The scenarios assume a Shift Supervisor's level of knowledge and in limited access. l'MC found that the plant operators felt an obligation to protect the h:alth and safety of the public and would take action to protect.it no matter what'the cause; operational transient, accident or sabotage.
Every utility involved in this study had at least one Vice president vitally interested as well as operating personnel down to the Shift Supervisor level .
Mr. Knuth thought that the senior operating staff at the plants felt a responsibility to prevent sabotage and that it was not all. left to the guard force. -
Mr. Vnuth concluded (Slide 24) that the methodology provided plant owners ,
with a disciplined engineering approach for evaluating sabotage potential .
A sabotage attempt at an operating plant that woudl lead to a substantial !
radiological release is a very difficult and uncertain undertaking. If required, engineering modifications can be made to make the sabotege scenarios substantially more difficult. A general requirement for a two-
-man rule or edditional compartmentalization is not necessary or appropriate.
The probability of a single inside saboteur escaping detection, injury, or h' death is low. Even if sabotage is successful there is considerable uncertainty as to the degree of success.
Mr. Uoodcock noted that for trained saboteurs, a 90% probability of success I was quite acceptable (that implie.s a 10% chance of the saboteur being killed).
Mr. Ilichelson took exception to fir. Knuth's conclusion that the saboteur was in serious risk of detection, death or injury. He thought that there were a number of scenarios that would involve no risk of injury. Ile noted, I
however, that this number compared with a large number of risky scenarios could make the probability look unfavorable. He thought the saboteur would select the safest scenario he could find.
- Meeting With the NRC Staff (0 pen) (11:05 a.m.)
possible Sabotage Scenarios Mr. pasedag reviewed possible sabotage scenarios from the point of view of the person protecting the plant rather than the saboteur. He asked where the vital equipment was located and defined " vital equipment" as it is in 10 CFR 73.2 (see Slide 25). lie pointed out that this is a two part definition.
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< i The first part is those systems or equipment which would directly or indirectly result in a radioactive release if it were sabotaged and the second part is the equipment or systems necessary to mitigate the con-sequences of sabotage. The f:RC Staff is trying to prevent radioactive In broad terms, the releases that would exceed 10 CFR 100 guidelines. The first part second part encompasses all safety related equipment.
of the definition would include the equipment in what are called Type I Vital Areas (see Slide 26).
It is the Type I Vital Areas that the Staff wants to protect to the highest level . ,
The !!RC Staff identified three sources within the plant from which radio-active material could be released; these were the reactor core,The the Staff rad-waste system, and the spent fuel storage pool (see Siide 27).
study developed a series of fault trees or sabotage scenarios that could lead to a radioactive release (Slide 28 'is a simplified example and Slide 29 is a summary of results). Even though there were a very large number of scenarios that could lead to a radioactive release there were only about eight Type I Vital Areas where the complete act could be accomplished without further access. There is a computer program to perform this analysis . '
The !!RC Staff is looking at ways to improve the reststance of a plant to sabotage. This is the topic of Technical Activity No. A-29 "!!uclear Power plant Design for the Reduction of Vulnerability to Industrial Sabotage" (see Slides 30 and 31).
It is expected that this effort will result in reconnendations regarding changes in the Regulations, additional Regulatory It is expected Guides. and/or modification of the Standard Review Plans. Preliminary con-that this activity w'ill be completed in October 1979.
clusions are that Type I Vital Areas can be adequately protectedActivity The Technical by com-is pliance with the requirements of 10 CFR 73.'55.
really aimed at improvements to be made in future plants.
No attempt has been made by either the llRC ' Staff or VJ4C, Inc. to. determine the probability of sabotagc or of successful sabotage.
1ir. liiller indicated that the !!RC Staff would be receptive to a discussion on specific plants that use the VJiC analysis. He stated that the "two-man rule" and compartmentalization were two methods of reducing the potential for sabotage and there might be acceptable alternates.
The liRC Staff acknowledged that they had no one wha had knowingly sabotaged a nuclear or any other kind of plant. lir. Woodcock noted that he had been trying to find an experienced consultant for the He Staff but that that suggested everyone nuclearhe knew was currently employed and not available.
plants would only llc dealing with professional sabotage (the implication
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being that they were adequately protected against casual or amateur sabotage). 11r. pasedag said that the flRC was receiving information
- from other government agencies.
There was general discussion of the degree of protection needed and how much additional protection cr ;1d be obtained by rearrangement or other means that would not increase co'sts significantly. The increased protection against possible sabotage should not interfere with safety, effective plant operation, or fire protection.
Protection of Security Information 14r. liiller pointed out that the licensing process is essentially an open process and the protection (withholding) of security information is in direct conflict with the precept of openness. Ifowever, the flRC Staff is proposing to the amissioners, legislation which would permit the ilRC to withhold certain safeouards infermation and certain desian information (see SECY-77-611A, IC E l' 7 Attachments D, E & F/).
- Mr. liichelson asked what could be done to withhold information regarding defects in the security system that must be reported under part 21.
Mr. Ililler said that the llRC would withhold as much as possible.
Research Into physical Security Mr. Murphy from the Office of Research presented a brief overview of tha research activities currently underway. The effort is in two parts, thc first is toward analytical methods to determine if the proposed security measures are sufficient for various threats and the second is toward design innovations or operator action to reduce the probability of successful sabotage. The various analytical programs under development and their delivery dates are shown in Slide 32. This slide also shows the areas addressed by each analysis tool . The ' plant design feature portion is shown in Slide 33, none of this work has begun yet. It is hoped that this study will produce optional systems to enhance security, redction of vital areas or make them more defendabic, and finally examine ti.e role and effect of damage control measures.
The total amount of research funding in this area is about $4 million with
$3 million going into the analytical side and $1 million going into the design side. The total safeguards budget is about $14 million, including fuel cycle research.
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A bunkered system may be included in the $'l million design study.
Mr. Michelson thought that that icvel of effort appeared to be rather small to , assure adequate protection.
4 Mr. Murphy indicated that there was a portion of the program allocated to looking at foreign reactor plant designs.
Improvised Explosives .
A motion picture film prepared for Sendia on improvised explosives was shown. It described the fabrication and effects of five improvised bombs. The first was the coke bottle bomb or shaped charge for penetrating thich netal walls such as valve or pump bodies. The second was a thermos bottle bomb for general blast effects. The third was the shrapnel bomb for the destruction of large areas of electrical components. The fourth was a fuel air bomb that is effective in large closed spaces. The final explosive was a " platter charge" which can be used to penetrate thich concrete structures or thick metal walls.
Mr. Woodcock, who helped prepare the film, noted that it had originally been about twice as long before it was severely edited to make it accept-able to Sandia. lie noted that all of the explosives used were obtained off the streets in Seattle. The 22 pounds of plastic explosives were ot,tained in about nine hours for half a case of whiskey.
Mr. Woodcock claimed that he was able to smuggle about 200 pounds of explosive into one of the nuclear fac':lities. It was noted that this was done before the new 10 CFR 73.55 requirements were put into effect.
A complete transcript of the open sessions of this meeting is on file at the fiRC Public Document Room at 1717 H Street, !!.U., Washington, DC or can be obtained from ACE Federal Reporters, Inc.,444 North Capitol Street
.Uashington, DC 20001 (202) 347-3700.
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D40, Inc. Proprietary Presentation (Closed)
Attendees' ACRS flRC S. Lawroski L. Crocher
- 11. Bender . II. J. Ross -
J. Ebersole W fl. Immerman J. C. !4 ark L. Bush J. Arnold 14. J. Gaitanis C. 11ichelson E. W.11cPee S. tloodcock J. S. Berggren J. IicKinicy, Staff F. Pagano
!!. Alderman, Staf f R. Cudlin
. J. liiller
- 11. Pasedag
- 11. J. Urizar, Consultant D. Kunihiro H. L. Ornstein K4C and Kf'C Aporoved Utility Representatives 11.11. liarquardt - Duquesne Light Co.
J. ficEwen - K4C, Inc. -
D. Knuth. K4C, Inc. -
L. B. Bean - Commonwealth Edison Co.
J. 14. liaurer, Jr. - Duquesne Light Co.
D. J. Chin - GPU -
T. J. liyers - General Public Utilities N. S. Tasker - llortheast Utilities ,
P. A. lioeller - PSE&G Co.
T. E. liolland - Duke Power .
J. II. Davis - Duke Power F.11. llartley - Ariz. Publ . Ser. Co.
D. E. liceggenberg - Consumers Power -
D. A. Dixel - Consumers Power R. Rice - GPU R. Russo - GPU J.11. Pilant - liebr. Public Power Gfp(fu,s ppyw gf n
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- 12 IIRC Classified Presedation (Closed)
Attendees ACRS _f1RC S. Lawroski L. Crocker M. Bender L. Bush J. Ebersole M, J. Gaitanis J. C. Mark J. S. Berggren C. P. Siess W. H. Immerman J. Arnold F. Pagano C. Michelson R. Cudlin S. Woodcock J. Miller J. McKinley W. Pasedag
. M. J. Vrizar, Consultant H. L. Ornstein Others Uith Security Clearance and fleed to Know J. E. Mc Die n - KMC , I nc .
D. F. Knuth - KMC, Inc.
R. J. Deneen - Phila. Elec. Co.
L. B. Bean - Commonwealth Edison Co.
- 11. Shi rl ey - GE J. Maurer, Jr. - Duquesne Light Co. -
N. S. Tasker - llortheast Utilities T. E. Holland - Duke Power Co.
J. W. Davis - Duke Power Co.
- f. W. Harticy - Ariz. Publ . Ser. Co.
Type I Vital Areas Mr. Pasedag continued his earlier discussion by specifically identifying the Type 1 Vital Arcas in a typical nuclear power plant. These were the areas from which succes.tful sabotage could be perpetrated. He showed a conceptual drawing of a perimeter guard tower proposed by one licensee. The Subcommittee discussed further the use of deadly force to protect nuclear facil ities .
Staff Review of "Michelson Report" Mr. Cudlin described the NRC Staff review of the "Michelson Report", he affirmed that it went well beyond the normal NRC analysis and review of plant security. He suggested that some credit should be given for damage control actions taken by the plant operators. .
Mr. Cudlin stated that the"Michelson Report" has been made available to a number of members of the NRC technical staff and they generally agree with its conclusions. A knowledgeable, dedicated individual with unlimited e
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access can perpetrate successful sabotage but the case of accomplishrent is very plant specific. The case of accomplishment is also a matter of preception but it is sufficiently easy to warrant the implementation of 10 CFR 73.55 and the study of alternate plant designs or arrangement.
A Bunkered system will be studied as one of the design options.
Implementation of 10 CFR 73.55 Mr. Pagano reported on the progress in implementing 10 CFR 73.55. NRR has ten men working in this area. He described some of the problems encountered at specific facilities and some of the corrective measures taken.
Analysis of Effects of Explosive and Incendiary Devices Mr. Urizar, a consultant tc, the NRC from Los Alamos, described some of the studies made of the effects of a variety of explosive and incendiary devices on selected plant structures and components.
Mr. Urizar also noted that many of the explosives decompose rapidly in high temperature and/or high radiation fields. A number of methods of bringing explosives onto the site were discussed. The effectiveness of various means of detecting explosives was also discussed.
The effectiveness of the "two-man" rule was discussed ~as were other aspects of the sabotage problem.
Executive Session (Closed)
Attendees: ACRS members, ACRS staff and ACRS consultants only.
Mr. Woodcock noted that there are many people trying to make nuclear power plants safe from sabotage but apparently none of those people have any real sabotage training or experience. He was concerned with the apparent preoccupation with building higher fences and stronger guard towers. He thought there should be an effort made to identify who might want to sabotage a nuclear. plant and what their capabilities might be. He was concerned about all of the detailed technical information available to potential saboteurs or terrorists. He felt that the most important aspect of plant security was dealing with people and the development of loyalty to the plant .
Mr. Ebersole expressed his concern for covert actions within the plant as '
opposed to an external assault. .
Dr. Siess remarked that it would take 15 years before a bunkered system I would he in operation, based on current standardization practices and ;
regulatory review processes. !
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Mr. Michelson agreed with the !?iC scenarios but he felt that sabotage was not as difficult as l'JiC tried to make it appear. 11e thought that something should be done to make the very simple scenarios more difficult.
lie was not f avorably impressed with the Imc Staff review of his report l
and he would not recommend major changes in plant design without a more l serious study.
1 11r. Woodcock discussed ways by which the spent fuel storage pool could be severely damaged by explosives and the ways the explosives could be transported and placed.
Following these discussions the meeting was adjourned.
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w~'s NOTICES -
nddre.ued p the UA lhmlear Itevula- '
Nr i l tory Q uunk,tm. Wich hmton, D.C. rninimum critkal powcr ratto (f.fCPID,
> reelsed opern fing ihnit !.1CPH% for 20%5, At tenmrn i)! rector. DivMon ot for nmendments f.!ny 11, .Toly 8: & Hdab d Ja rv oa rs Operattn: Hrv torJ. both 7 x 7 and O x f! fuel an.crnbiles, e ruh,1 3 ,'
October the r.ddh bm of linear heat ncneration 13, 157't; and Jarunn y 3 23: Noven'imr lo; ti,M I Dated at Iktla nda, f.fd., thh; 31:,t rnte' (I.liUH ) lini!!s for the fi x 8 furt, day of January l'AB. amendment No. 3 Ti to lk,g g s.. ' -
revmed thrdts for the mutmiun aver. I> pit-33. amendment No For the Nucicar Itegulatory Com. g,.c g3n.tr linear hent generation rate misrJon, Ha APLl!UIU for the 7 x 1 and 8 x B No. DPH-52, nint :unemtmQ". .t ,;d G roncr: 1,un, fuel remernblics, and reduced hmus for Liceme No. DPit C, ,et W an (-
Chic /, Operafbig Rcuctors serarn in .erilon times. The revked mbahn's related safety ev.due, Dranch No. 3, Dirition c/ Op. mal'Lllutt lim!ts rire braed on the re. of thne itenu are avaDrbb h cruff ng lircefcri sults of n riew evaluaWu of flu
- etner. Inspection nt the conunpam.r tp rency core cochn~ sptem (1:CCW per- Dorument lloom,1717 li Nri . t ',
(71t Doc. 70 3t49 l'Hed 2-6 *i8; C:45 ara] formance whmitted in comp!bmee Public Wa.nhint: ton, D.C., nnd at ! he M with our order Inr modification of 11- At ht na,Idbrary. Fout h ral ;; --
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pr,7h01] cense deted .f r rch 11 1977. Th!s Ah. 3tM11. A ropy r;f p. ;
s tonendment t< tramnte:, tha M rxc h 11, and (3) may be obtained open r t
Im * -t h CTH 50-477 & f.;Di 50-Ci81 1977, order. In edWthu a rentrletha nddremed to the U.S. Mork ,r m .
.{ tr_.
or power oper:'!ca durina :he indml tory Commia: dor', Wa.u , %,
! , , rt.u r,%., A .D G ',$ Co. ( M . r e ttup for cycle 2 hrs been impowd 203%, AtienGon: Director, DM ew GLur.AW:3 r,iA1:ON, U.VH S 1 until rufficient high temperature re O.>eratin;; Reactors cireuhtlon 1.nc; tuen place to ensure . Dated at Bethedt, !.1d., thi, M dialntu; ration of a rt:bher choecever " .# # 'kU""U '
<,1 cf An,rac sofrty emi Ucendng Appet to,q that Imd faHen into the unit 1 \cucl during the Jef ueHni: outage, For the Nuclear Rc;;ulatory i mission. C.-
m ilc h hereby citen that, in t.ccol- Ametubent Nm. 2f> to DPR-33, 32 l dance w!th the nuthnt M in 10 CP t to DHM2. nnd 9 to DPR-03 change Chief, A.Scnv.ncu, g 2.'i87(n), the Chi!nnt n of the Atom c the t.:chnical rpeelffe'ttlons for each of Operating 1, Yam Safety r.nd Lhensine Arp.El P'nc! ht S the ikowm Ferry nuclent idant umts Branch No.1, Dit fsian of Cp to chrify tha operability rer;uhements crafing Rccefors.
r.r$ntd the foi!owm4 pr.nel rnember.
to serve , the Atoni .9ft ty 0.nd 01- of the rod worth m.nhaber and tha gf R Doc. 78-3243 Pl!cd 2-C 18; 8:45 nr.;
censing Appr.nl Jba:d f or thi'i con- rod ccquence control systtm during struclian peru.it proccedinc: scram ihne ter. tin?, de}0:e the ann'tal [7590-01]
cperating repcrt requirencnis, add Ek hard R Wnun, Chairmna st anJards gggg gyh, for cualifications WpervNr, chanre ofthe the ADVISORY COMMirrt! 0:1 Pr ACTO t !D:
ll . nr frcquency of cych: Hm protection OVALDS W0t KING G:OUP ON 50, Dated: Tekunty 1,197S, system valves from qurledy to r.nnu. WWMMW MAncMxr D. DU ho, ally, and suballtute revhed, but equh- "*" ""8 r, ,
&creim p fo lhe nient, terms in the cauatiam for the limitin; rettints on the ner ige power The ACHS Worja:n Group on Sa5 stptcellio::rd- guards nnd Seetuity w111 hold a m. ,
f Mt Doc. 7tN2 ri PPed 2-G /it (L 15 Eml rance set monito:t scram rund rod block ing on February 22, 1978, in Itco:
points.
The app!! cations for the amend. 1010, I'll'! H Strcei, NW., WashinW:
pgj] ments comply with the :tandards ned D.C. ZM to diraus i the efIretiver.<.
requirements of the Atom!c Energy of phy; teal security measures for nu-Act of 1!M1, ns cmended (the Act), und clear f achitics.
IDxht Nos. 50 2;9,50 200. rul 50-2N1 in Eccordance with the procedum the Commi= ion'r, rules nnd regula-7Dm!55fC VAtttY AVNorsnf tions. The Commis.Jor nas innde no- outlined in the P::xnA1. Ih:ctsrrn on proprhte findings Os required by the Octeber 31, IM7, pcce 56972. ora! or hwonce c.! Awn.%rts b rocmry o etcHnD thenics r Act and the Commission's rule:4 end bywritten statements may be prcenit J inernbers of the putdic, recordir r4 regulations in 10 Crft Chapter The U.S. Nucler r Herupttory Com. which are set forth in the !! cense will be permHied only during t ho o I,
minion (the Cemn:lefon t has imued nmcudments. Noti:c of proposed (mu- portfor.s of the meeting when n trar tunendment No. 35 to fvi!!!y cperat' nnce et amendment to frDity operat- r.cript h beim: kept, and questiom nm lug heense No. DPH-33, amen:! ment ing beenw in connection w it h , t his be nsked only by Inctn bers of the No. 32 to facihty emrating lkense No. action was pubHshrd in the IttmnAL Working Group, its consuhants ' on.!
DlW43, and t.mendment No. O to fa- nrcurs:a on &ptember 15,19T1 (42 sinff. Persens deniring to make orr.1 cihty operating he n:e No. DJ 'H 43 pH an.1;u)), nnd- on November 1,1977 statements should notify t he deslena' ed Pt deral employer as far m adua:v (the licete.ec), \chtch revin'd tt chnicalbrued to Tennesee Valley Aut hority as practientde so ,th.'.t ingappropriate or pcthlon nr for leave to interve mecifkatium for oper.uion of the wn.s flh.d foHowing notice of the pro- ranc.cmems elm be m:ide to allow t he Browns Ferry nuclear plant, unit No:6 poard action. Decemary time during the sneeling for such stMements.
1,2, and 3, (t he facthty) INated in th The Commis. tion las detertained Inestone Cou n t y, Ala. 'I h e ainend- that th" f;sua nce et t her,e emend. shnHThe be as agenda f ollown. for subPet meetinC nients are effectit e as of the date of la nu nts u ill not :#f ult :n any sir.nificant tuance, enviromnental lnmaet i nd tlutt pursu. Wedneadny, February 22, IM8: [00 A m endment ont to 10 CPH s S t.5nlin1) amt envirott. n.m. unt d the conclusion of buniness, No. 35 to DPR-33 The Workinn Group may meet in ex-chaures the beladc11 speelfications to mental impact staternent, or negative incorporate the ihnitinc conditions for declaration an,1 entitonmental impact centive tants who scudon, inay with any of its be piecent, cotout.
to explore oper ation n:oociated wdh cycle 2 oper- hl'priosal need not bo plepat ed in con-ution of 1howm l'erry nuch.ar plant rnents net tion with issuance of these nmend. nnd excham:e their prehminary opin.
lons renarding mat ters u hlch should unit 1. Thene channes im'oh e n n ilsed l'or f ott her drians wit h Impect to he com,hlet ed durinn t he meetine, and fuct cladd;ng integrity imfety lhnit for thh netion, t.ce: (1) The nppheations to formulate n repm t 'and recommen-dations to the full CointuHlee.
IIDIRAL EtGtsit R, VOL 43, HO. 2t-tut 3 DAY, itMtfARY 7,1970 lM
-.,7
. - _ - _ -~ _ ___________-_-__--- - -
s NOTICES At !!ic concin:.lon of the executive from the Clearance Of flee, Offlee of DU^rm Nt or TnmronT AinoN
- m. ton, t he Workinr Uf oup v.ill hear Mana"^*nent ntut l'.mb:rt Waz;hlrn:lon, Pedern! Avbition Adminisantion:
pre.critat antr; by amt hold diorusstons D.C. W Wi3, 202- 3'i.b lh29. Appliennon f or Air 1 nt commarial op.
+4 p h ropic:.chtative:; of the NilC t.taff e rntor ('ertutcate lli nter PMt Part IM.
N FA A nWo 6 on suu s hn inivan he
.m,1 t heir consult a nt5, pertinent to
" * ' "" """ ' " " O"#Ih1 thMieview. u.s. firtrnN A13ON A1. TE ADr. coM MISSloN Gen rrnment Ulvision,"'A rnold bira.wcr*
The Working Group may then gy,g pg eg ers' Quent ionnat re on Ice 3 E i;92, caucus to deh rinine whether the mat- lon, y Huch. Mnric nme, bu:,tnwi finn.s. Appilentian for Pilot School certtiteste, ters identilh d in the lultlal Eer,sion lou!a c. Kinentmon. 3% 3211, yAA.n.00, on orrnston. Proprietters/
June been adequat ely covered and MAHWW or AWNMr firms. Econe.mic and Generhl Gos em.
s het her the project is ready for ment Dh Won, Al nold D rn..ser, 39$.
review by t he f ull Corumiltec. Arr! cultural Utnbflhntion h Constrvntion 4002.
In nddition, il rnay be neces'at'y for hervice, G rrdn Mm ue Cun ey, single y -
U r n e, farm oper at ors w arrhousemen.
the Wort: Inn Urnup to hold one or Assisf a n t to the Direct'or clotrb n A.1:Hett. Omce of Feda nt stntis.
more closed semfom for the purpo:e tical Pouey anJ 8tand.ud3. ancl32. for A dm hilstration.
of explorinr: matters involving propri. U Doc. '78-337o Pdt.d 2'048; 8A5 nm)
- nry information.1 have determined, DcrAnTurst or msTier m necordance with Subsection 10(d) of f.t ator ial Aufstarte Prer ram Evaluation Pub. L. 92-4G3, that, should such ses. Questionnn:re. IJ:AA4330/3. dngle time, [3110-01]
sions be required, it is n(cmary to Utste k,w enforecraent pinnning agency close these Lei.slorn to protect propri. GS), lavt rne V. ColUns, 395-3214. CLEARANCE OF REPO:ti5 etary information (5 U A C. ,m.y7 oy yg,.t Tn, Em; cation Asp tist of Reqmts
$ 52b(c)(4 )). w m ipt Fu rt her information regarding The following is a list of requests for topics to be discussed, whether the Of me of Education. Prcerarn /.dmint tra. clearance of reports intended for use
- .ecting hu been cancelled or resche- (($d,'3[.l', gy$N'g","a"Nt 'r ,
.- in c llecting information from the duled, the Chairman s ruling on rc- pancis Atuman P.esources Division, La- pub!!c received by the Office of Man.
<;uests for the opportunity to prcrent vernc V. Coluns. 395-3532. agement and Hudret on January 30 oral staternents and the time allottcd 1978 (41 US.C. 3509). The purpose of therefor can be obtained by a prepaid 3tEvtstoNs publishing this list in the FrautAt.
telephone call to the designated l'ed- Rt;crsTrn is to inform the public, vrrruns A:mtuwTraTion eral employee fer this meeting, Mr. The list includes the title of each re.
John C. McKinley telephone 202-034- Request for Tram. ing Surn!!cs, 22-1tet- quest received; the name of the agency "L 1 I" " sponsoring the proposed collection of 1371, between 8:15 a.m. and 5 p.m., $d LYor$1v o 5 Information; the ccency form c.s. t.
ImnxTurtri or cour,trner: number (s), if applicable; f he f rrquency Dated: February 3,1978.
Burenu cf the Certsus. Annent Survey of 00 With poacdwhich the information.
to be collected; an Indication is FS of SAvtIEL J. CHH K, and oss. MA-13n. ar.nually, operaterr, Secretary o/the Cori mission. and lesees of oil and ps Ikid properttea. who will be the respondents to the Loub C. Kincnnnon, Offace of Tc:letal proposed collection; the Cstimated IIH Doc. 78-3501 Filed 2-uTB 10:16 am) Statbttcal Pohey and Stanci. rds,3M-3 :1L number of responses; Ihe estimated burden in reporting hours; and the porAnTurwT or mat.Tn, toccATrox, Auv name of the remm or reviewing dirt.
[3110-01} wannt sion or offec.
Off!CE OF MANAGEMENT AND Food r.nd Drug Adm!nStration, Quick Ite. Rcquests for extens!On which appear BUDGET 7tN'I"eYc3S, tNINnNuNolj t raiseapproved no signuicant issues are to be af ter brief notice through in a nattenal prcMt!Miy arr41e. lutMrd CLEARANCE CP REPOUS Eisinrer, OfGre of rederal St atLstical this relcre, tht of Requests l'ohey r.nd Standards. 3M-M14. Further information about the iten's National Inaututes of Health, I.tultiple 1thk on this daily list may be obtained from The following is a list of requests for Factor Intervention Tr:r,1. other Gee SF the Clear!.nce Of fice, Of fice of Man.
clearance of reports Intended for use 8 3 ). Individuals at IJgh risk c'tath from Rrement arid 13udget, WnAhingtCn.
in collec ting information from the mryry du. case. It!cht.ed nsini:er, Of fice nC. 2M03, 202-3M-4529, or from the reviewer listed.
pubhc received by the Office of Man- yl,ygT]32
- .rement nnd lludcet on January 27, Did 141 U.S.C. 350M. The purpose of ExTwioss Nrw Foaus
.lbmning this hst in the N ATroNA!. SC!r.rTCr roeHDATioN
[b I"Trm NINTION t ctsTim ic to inf orm the pubh,hDERA1; c.
- 1he hst inchnics the title of rach re. Appucation for Nor.rr.eAcal Imurarce Acc S "U "I UCI'"U UC 3""'""IS ,r.ir.rv time, 3 X.
1.mrne T . Con:ns, n 50 nnd Under, mmA, on ore.vien, In.
Q' test rc ceived; the name of the egency sured ve t e ra n. Ilom ing, Veterans and
{h 6Ck"MS-
!ponsoring the propo',cd col!cet!on of 1.nbor Di n, m 2.
mformation; the atency fctm number, nrmTrmr or Acr.tretTent j
If applicab!c; the ircQuency with rErvr.TuLnt or nrAt.TH. rnucATroN, AND liconomic Hnearch Errvice, Parrnus' Nev.s w hich the information is propesed to w uranE letter Evaluanon Protest, single t inw.
be collected the name of the reviewer Food nnd Drug Adminkt rauon: f annew h nmple runnings. Luett. C. A..
or rettewinn dh Non within OMB. and Lst abhshment luenr Apphention for 3 6 0132.
An indicHtlon of Who Will be the Ie. b1:situf acture of 1u00:1 fin i ljlved Com-IirARTMEN r or ulAt.Tu, rDUcAlloN, AND Epondents in the pr oposed collection. ponents, PD hM. en uc.aton, ruanuf ac. w gg,. r The symbol (x) hientil es proposals nu ns of blood unJ bh.ad winnom nts.
w hich appear to raise no silmificant linnuun Hemurres Mon. m@nrd 1:1 Of f tee of Edun.tlen. Study PP & h rted in-Luurs, and nie to t e appio\ cd af ter
- d. upplem' ent Wl o Daablishment 1.lernse AP- """#"' "" " "
the Prdered lir.ored Stud. nl Loan Pro-
- U*U"# '"
Drief n at,ce I tht onn:h this relenw. pernnon for Rununne of lilood umt ginm. OE ',31-1. Mnrle thor. : tudents and Further inforination about the items luood Compocu: . Ihnnan Nesourri x r.chool othela; . Human Jorourrea Da i-on this Dally 1.tst inay be obtained Divhlon, Hkhntd ENnrrr, J6M32. adon.1.riverne V, Colhns,36 %32.
ffDIR AL MGl$1rR, VOL 43, No. 2r-TUTSDAY, f tBRUARY h 1978
- _ _ - - _ _ _ _ _ _. ._ _ _ _ _ . _ _ _ _ _w____________ ________ __
' ~
L.
/,'
TENTATIVE DCPAILED SCllEDULE ACRS VDIU(ItK; GIOUP ON SAFEGUARDS AND SECURITY a WASilING1DN, DC FEBIUJld& 22, 1978 Approximate Time 8:30 a.m. I Executive Session (Open)
Revics of Proposed topics for discussion 8:45 a.m. II Meeting with Representatives from the NRC
- Staff regarding security experience at operating, reactors and the implementation of 10 CFR 73.55 (Open) 9:15 a.m. III Meeting with Representatives from KMC, Inc. ,
regarding their "St dy to Assess the Radio-logical Satotage Potential of Operating Nuclear Power Plants" (Open) 10:30 a.m. BREAK 10:45 am. IV Meeting with Representatives of the NRC Staff regarding: (0 pen)
- 1. Its review of possible sabotage scenarios and consequences;
- 2. Policies for the protection of information; including design information and informa-tion relating to defects or malfunctions of security systems;
- 3. A summary of research p]anned or in prog-ress to enhance physical security 12:00 NOON .V Movie on improvised explosives (Open) 12:30 p.m. LUNCil 1:30 p.m. VI Meeting with Representatives of KMC, Inc., .
regarding the proprietary portions of their study (Closed - Proprietary) 3:00 p.m. VII Meeting with Representatives of the NRC Staff regarding the potential consequences of specific acts of sabotage (Closed -
Classified) l Tr#cHMEN7~
3- , .
0 3:45 p.m. BREAK 4:00 p.m. VIII Meeting with Representatives of the IJRC Staff regarding cite specific security experience (Closed - Proprietary) 4:30 p.m. IX Meeting with Representatives of the 1;RC Staff regarding the vulnerability of specific designs to external threats (Closed - Proprietary) 5:00 p.m. AD3 CURT 1 .
1 1
l l
O
==
m U.S. UUCLEAR REGULATORY C0!O!ISSION OFFICE OF INSPECTION AND ENFORCFliEt)T INSPECTION AND ENFORCDIENT MANUAL CHAPTER 0800 - ENFORCEMENT ACTIONS 0801 PURPOSE Enforcement acti'ons are used to insure that licensees comply with Concnission requirements. Sanctions celected for nonconTlia nc e situations should provide licensees with incentive to take timely corrective action and to avoid future noncompliance. Punitive sanctions are imposed on recalcitrant offenders.
This instruction prescribes the Office of Inspection and Enforcement (01E) policy and guidelines for NRC Enforcement Program implemen ta tion. It inclades: policy and guidelines; enforcement procedures f or Regiona. Offices and 01E Headquarters staf f; guidelines for sanction selection and use and criteria for civil penalty determinations.
0802 DEFINITIONS
.01 Regulatory _Reguirement 8 A " regulatory requirement", as used in this chapter, refers to a legally binding requirement or prohibition imposed on a licensee or other person. Nofmally, regulatory require-ments consist of directions or prohibitions set forth in the Atomic Energy Act or the regulations, orders, licenses and permits issued pursuant to the Act.
.02 Acceptable Itens l
l An acceptable item is a matter or situation not involving an item of noncompliance, failure to meet a licensee commitment, deviation or an unresolved item.
03 h"2511294 l
As used in this chapter, " noncompliance" refers to a failure l
to comply with a regulatory requirement. For the purposes of this chapter, items of noncompliance have been categorized into three categories of severity: violations, infractions, and deficiencies.
0800-1 JAN 171375
/ 77/?cHA1/iN7' 0
'. .04 Violation
,, **^~"*'"""
A violation is an item of noncompliance of the type listed below, or an item of noncompliance (1) which has caused, contributed to or aggravated an incident of the type listed below, or (2) which has a substantial _ potential for causing; contributing to or aggravating such an incident or occurrence; e.g.,
a situation where the preventive capability or controls
'were removed or otherwise not employed and created a sub-stantial potential for an i n_c i d en1_,on ,,c,,cg py_eng e, wi t h a c t u a l or potential consequences of the type, li s t ed .,below : ,
(a) Exposure of an individual in excess of the radiation dose specified in 10 CFR 20.403(b) or exposure of a group of individuals resulting in cach individual receiving a radiation dose which exceeds the linito of 10 CFR 20.101 and a total dose for the group exceeding 25 man-rems.
(b) Radiation IcVels in unrestricted areas which exceed 50 times the regulatory limits.
(c)
Release of radioactive materials in amounts which exceed specified limits or concentrations of radioactive materials in effluents which exceed 50 times the regulatory limits.
(d) Fabrication, or construction, or testing or operation of a Seismic Category I system or structure in such a manner that the safety function or integrity is lost.
(e) Failure to function when required to perform the safety function or loss of integrity of a Seismic Category I system, or structure; or other component, system, or structure with a safety or consequences limiting function.
(f) Exceeding a safety limit as defined in technical specifications associated with facility licences.
(g)
Industrial sabotage t of utilization er fue1 JacdJ,ig er.,,
(h) Radiation or contamination icycls in excess of limits on packages or loss of confinement of radioactivo materials in packages of fered for shipment on a cor.unon carrier.
(1) Diversion or theft of plutonium, uranium 233, or uranium enriched in the isotope U-235.
(j) MUF or LEMUF scceds any applicabic limit by a factor of two.
0800-2 MAR 1 Z D75 h7^7//c HME" T - -- -
0
, (k) All security barrier: or contro]u teroved or inopera_tiv3 and there 1: unitpeded accesu to a .' ital area.
(1) Other similar items of noncompliance having actual or potential consequence of the same nagnitude.
Failure to report the above items as required constitutes a violation of the same importancu 1cvel.
.05 Infractions An inf raction is an item of noncompliance of the type listed below, or an item of noncompliance (1) uhtch rcsulted in a reduction of preventive capability below 7equiren.ents but redundant controls precluded an item of ntnco:npliance of the violation categcry, or (2) which caused, contributed to or agg;ravated such an incident or occurrence; e.g. , the preventive capability or controls were removed or ellerwise not employed and there was substantial potential for an incident or occurrence with actual or poten'tial con. sequences of the type listed below:
(a) Exposure of an individual or groups af individuals to radiation in excess of permissible limits but less than the values in 10 CFR 20.403.
, (b) nelcase of radioactive materials in zoncentrations or rates which exceed permissible Ifmita but in amounts less than permissible limits.
(c) Failure to funntion or loss of integ*ity of a Seismic Category I system or structure, or other component, system, or otructure with safety or tonsequences limitir.g function during test; or f ailure to neet surveillance
~
frequencies.
(d) Fabrication, or construction, testing or operation of a Seismic Category I system or structun in such a manner that the safety function or integrit3 is impaired.
(c) Exceeding limiting conditions for optration (LCO) .
(f) Inadequate management or procedural zontrols in the QA implementation.
(g) Safety system settings less conservative than limiting safety system settings.
0000-3 5/5/76
/?r7M//MCA/r D
~~
(h) MUF or LEMUF exceeds any applicabic 31thit by any amount up
. +
to a factor of two.
(1) Securit y der.raded. _or impa. ired - .~ _by. _ rem,_ oval.or impairment of a re ~q:... u i r ed hD r r.i e_r o r .cco- n t rol htl.l.mmww..n.s.,a owww a redu d ums, n t . SVstom x .m .m.ame
, ope LVe. rat,or.mm.
m (j) Execeding limits or limiting conditions for operation in licenses, technical specificatice . guides, cod e:: , or standards uhich are imposed for t'u purpoce of minimizing .
adverse environmental impact.
(k) Other similar items of noncompilanca having actual or potential consequences of the tr.mc mc;nitude.
Failure to report the above items as regired constitutes an k ., item of noncompliance of the same catego:y.
.06 Deficiency A deficiency is an item of noncompliance in which the threat to the health, safety, or interest of the pUlic or the common defence and security is remote; and no utduc expenditure of time or resources to implement correctivt action is required; and deficiencies include such items as nmcompliance with records, posting, or labeling requirements which are not serious enough to amount to infractions.
Failure to report deficiencies 'as requir:d constitutes an item of noncomplia'nce of the same category.
.07 Licensee Commitment From time to time through various writtet or recorded means (e.g. , applications for 31 censes or permbts, hearings, PSAR's, FSAR's, letters and reports to NRR and O':E) applicants and licensees promise that certain equipments procedurcs, guides, controls or actions will be installed or implemented. Sometimes these promises are incorporated into license conditions by such means as changes in the technical specif5 cations or inclusion as conditions of the license or permit. Frequently, however, these promises are not tiransformed into 2egulatory requirements.
Nevertheless, the promises remain outstalding licensco commit-ments. The term " licensee commitment", u used in this chapter refers to promises of the type described above which have not been transformed into licensee requiremetes.
0800-4 .
IdM .L 21975 Grwwwwrf
[ -
.08 Deviation--
When a ideensee does not conform to comaitments to the Commission, to the provisions of applicabic guides, codes, l or standards ubich were approved by the Commission, or to general]> accepted practiceu in the industry which have se.fety significance, and such lack of conformity does not c'onstitute an item of noncompliance, it is referred to in this Chapter as a " deviation."
.09 Unresolved Items An unrecolved item is a matter about which more information is rec,uired in order to ascertain whether it is an acceptable item, an item of noncompliance, a failure to meet a licensee cctatitmen t , or a deviation.
.10 Inspection and Enforcement Bulletins Inspection and Enforcement Bulletins ray be issued for a troup of licensees to inspect, report and make commitments to implement certain controls or remedial actions as a result of safety, safeguards, or security rela'ted conditians resultir.g from inadequacies or failures that have occurred at the same or a sinilar facility, or in similar operations. If a licensee does not make commitments for remedial action as specified in a bulletin, the SEC may issue an order to require the proposed action.
.11 Inspection and Enforcement Immediate Accion Letters (IAL)
Inspection and Enforcement Immediate Action Letters may be issued by the Regional Director (with Headquarters'concurrenca) for a licensee to inspect, report and take commitments to implement certain controls or remedial actions as a result of '
safety, safeguards, or security related conditions resulting from inadequacies or equipment failures at the licensce's facility. If a licensee does not resp nd to an Immediate Action Letter, the SRC may issue an order to make the proposed action a requirenent of the license. The IAL is also used to confirm verbal commitments by licensees to take immediate action.
.12 Notice of Viointion A " Notice of Violation" is a written nocice to a licensee under 10 CFR 2.201 of an apparent item!,s) of nonconpliance (violation, infraction, deficiency). A " Notice of Violation" may it'sclf be the enforcement sanction or it may be issued f.n conjunction with a civil penalty action or a 'show cause or other order.
0800-5 5/5/76
/ 77,0c HMLmr 0
'LAA j .
- f. '.,i ' ~T/*SE C V UNtftD STAf t5
' j >
NUCt. EAR REGifLATORY COMMisslON I
j -
_. .~February 13. 1978 SECY-77-611A l
1 . POLICY. SESSION ITEM '
td y . .
- l ~
n -
for: The Commissioners -
- 'Fromi. . Howard X. Shapar -
g
,. . Executive Legal Director ti a -
Thru: ~. Executive Director for Operations J
Subject:
~
1 DRAFT AMENDMENTS.TO ATOMIC ENERGY ACT ON THE PROTECTION
.'0F SAFEGUARDS INFORMATION AND RELATET MATTERS ,
- p
_ureose:
To present to the : Commission, as' regt/ested by the .
Chairman, draft legislation on the protection of '
3 j
, safeguards information and' related matters.
c'j Discussion: The Draft legislation in Attachment A' is forwarded to J -
. the Commission.fer its review and consideration.
'j.
- Earlier, I provided the Commission with a report
-a (without recommendations) which it requested on the i
various alternatives to protect an applicant's light
,.] Water reactor physical security plan in the. hearing-5 process (SECY 77-611, December 9,1977) (Attachment 8).
M .
. . Subsequently, in response. to a request from the Chairman, on January 23, 1978, I sent to him and to each Commissioner-Q))
! draft amendments to the Atomic Energy Act the purpose of 4 '-
which was to clarify the Commission's authority to pro-i ] -
hibit the disclosure of sensitive safeguards information.
- 3 -
(Attachment C). Draft "A" forwarded by my January 23, l 3 Memorandum would provide authority to the Commission to y publish regulations which would. fully protect sensitive safeguards information while Draft "B" would only provide i
[d .
a statutory basis for protecting that. information from l 1 ei .
disclosure under the Freedom of Information Act.
Commissioner Kennedy informed the Chairman on January 30 of his belief that the Commission should now proceed
}
.e .
to put forward legislation along the lines of Draft "A"
Contact:
Howard K. Shapar, ELD -
49-27308
. William C. Parler, OELD 49-27527 ,
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W . The Chairman subseauently requested that I expand the j Draft "A" approach to include authority for the
, Commission to institute a clearance program, based q on both common defense and security and public health j . and safety grounds, for any person who has access to 1 a site at which licensed activities are conducted.
1 i Various alternatives to protect safeguards information,
'i -
with the associated pros and cons of each, are set i forth in detail in SECY 77-611 (Attachment B).
5 The draft legislation in Attachment A is accompanied by a comparative text of changes which would be made i to existing law. There is also included a brief l explanatory statement which could be used for any J exploratory discussions which might be considered a useful prior to the submission of the legislation.
q
" Final" legislation which the. Commission might
.q decide to submit to the Congress on this subject should,
. .; of course, also be acco;npanied by a detailed section-by-section analysis.
e lj ,*
In summary, the draft legislation in Attachment A d would:
1
.j 1. Add a new Section 147 Safeguards Information to i the Atomic Energy Act which would:
1
'] a. Provide a statutory basis for exempting safeguards information in NRC hands from 1]; o disclosure under the FOIA; l b. Authorize the Commission to prescribe
- regulations to protect safeguards infor-
- mation relating to activities licensed
': . by the Commission which is in the hands I of any person whether or not a licensee 3 e of the Commission. The Commission would q , be authorized to prevent the disclosure of safeguards information which could s adversely affect the health and safety of the public or the common defense and 4 d security by facilitating theft, diversion, j or sabotage of any type of material or 7 facility licensed by the Commission.
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- c. Provide explicit authority for the enforce-
- ( ment of these regulations, including the j imposition of civil monetary penalties.
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~9 2. Amend Section 161i of the Act to authorize the Commission to implement a clearance program for persons seeking access to safeguards information.
In addition, a clearance program could also be j implemented for access by any person to a site a
at which activities are conducted under a license
- ]W issued by the Commission. Access could be granted if the Commission determines that it will not
- ]; adversely affect the health and safety of the public or the common defense and security by q facilitating theft, diversion, or sabotage of g/ any type of any material or facility involved in any activity authorized 'Jnder a Commission license.
- 3. Section 181 of the Act would be amended to permit 4 the Commission to disclose protected safeguards j '
information in its proceedings (e.g. contested a hearings) under procedures which will effectively
.f a prevent the disclosure of such information to 1.1 . ,
unauthorized persons, and with minimum impair-q ment of procedural right;. Section 181 now pro-J vides such authority for RESTRICTED DATA and gg defense information.
-j
, Coordination: Copies of this paper have been sent to NRR, NMSS, yi SD, OPE and OGC.
p y Scheduling: At an open session , currently scheduled for Tuesday, 1 February 21, 1978.
4 h
A. 7 9
j Howard K. Shapar j.
- Executive Legal Of rector
? Attachments: DISTRIBUTION A. Explanatory Statement Commissioners
- . on Legislation Commission Staff Offices j B. SECY 77-611 Exec Dir for Operations Secretariat j C. Memorandum for Chairman
{ Hendrie fm. Howard K.
1 Shapar dtd. 01/23/78 t
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9 i ATTACHMENT A
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e .. EXPLANATORY STATEMENT ON LEGISLATION 1 e. .
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Attacnment n J ' . -- .. - - - -
.y i EXPLANATORY STATEMENT ON
( , LEGISLATION J
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, The Nuclear Regulatory Commission has the responsibility to assure j ,
that the health and safety of the public and the common defense and z t a security are adequately protected in its lic.ensing and regulation -
- )
] of materials and facilities under the Atomic Energy Act of 1954, as j amended. It is fundamental that the conduct of this responsibility .
34 requires clear and explicit authority to prescribe regulations and
$ issue orders which the Commission deems necessi.ry to protect the 1
} public health and safety and the common defense and security. A 3 ' .
vital link in this protection is to assure that there is neither
],
,j access to sensitive safeguards informatioq, nor to sites on which 1
.jj certain activities are carried out involving material or facilities 3
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licensed by the Conmission by any person who, in the Commission's h -
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judgment,"coufd Es'e s'uch"a'ce'eis" to a'ffec't a' die'rsely' the health ..,
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$ and safety of the public or the common defense and security.
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j Sensitive safeguards information in NRC's hands is subject to dis-
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] closure under the Freedom of Information Act (FOIA) unless it falls J
j under one of the exemptions under that Act. Exemption (b)(3) of the 4
J FOIA (5 U.S.C. 552(b)(3)) protects information from disclosure which i
{ I is "specifically exempted from disclosure by statute.
This exemption 4, ,
permits the government to withhold information from disclosure under
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the FOIA where another law requires that it be withheld. There is f
no existing law which directs that sensitive safeguards information be withheld from disclosure. -
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._2 To be sufficient, however, the authority should encompass:
j the protection of sensitive safeguards information in non-NRC as well as in NRC hands;
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. the requirement for a clearance program to assure that l no person who is deemed untrustworthy is allowed access
$ either to such information or to such sites; y ,
. assure that such ir formation is protected when it necessarily must be disclosed to participants in f ,
Commission proceedings. _
- ,t . s di Legislation to clarify and make explicit the authority e the Commission
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to accomplish each of these objectives would consist of the following V three amendments to the Atomic Energy Act of 1954, as amended:
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1"~. A. Addition of.a new section to the Atomic Energy Act which would
'i explicitly give the Comission the authority to prescribe such j ----.. regulations as it may deem necessary to prohibit disclosure of i
.; safeguards information relating to material or facilities li-J -
l censed by the Commission by or to any person if, in the judg-
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ment of the Commission, the disclosure could adversely affect
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. either the health and safety of the public or the common defense and security. Such adverse effects could result by the unautho-
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rized disclosure of information which could facilitate theft, d , diversion or sabotage of such material or facility.
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]) B. Explicit statutory authority is needed for the Commission to require j a program for approval for access to sensitive information and to j locations at which certain activities are carried out involving mate-4 rials or any facility licensed by the Commission. The Commission
]+ now has the authority under the Atomic Energy Act of 1954, as amended, j .
for a security clearance prog, ram for access to RESTRICTED DATA and t
- j other classified information. In addition, Public Law 93-377 3 amended the Atomic Energy Act (Section 1611, 42 U.S.C. 220Til to give J ~
1 f - NRC specific authority to require clearances tbr individuals who j perform activities which afford access to or control over quantities a
- of special nuclear material which in the opinion of the Commission
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- q , are important to the common defense and security.
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. Specific authority is .needed, however .for a clearance program
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ji to-control access to unclassified sensitive safeguards information
? ind ~to7 sities on wh'ich cert'ain activities involving materials
-;g and/or1 facilities licensed by the Commission are conducted.
lg C. There is a need for specific authority to assure that sensitive safeguards information is protected from unauthorized disclosure s
3 in Commission proceedings. Section 181 of the Atomic Energy Act
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, of 1954, as amended, 42 U.S.C. 2231, now provides that in Commission 1
] proceedings which involved Restricted Data or defense information,
- k. the Commission shall provide for such parallel procedures as will effectively safeguard and prevent disclosure of such information N
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with minimum impairment of the procedural rights which would be
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.t i.egislation to accomplish these three obj. would enable the I Commission to adopt a carefully tailored pr .rogram which it i .
A deems necessary to carry out prudently its ory responsibilities,
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with minimum impairment of procedural rights. In addition to provid-
[ ing'this needed flexibility, the legislation would also:
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Provide. explicit statutory authority which could stand the
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yj scrutiny of intensive judicial review; ,
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y . Permit clearance procedures to be irrvoked prior to access y
j to sensitive information or to sites at which certain ,
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- 1) . Extend th'e authority of Section 181 so that needed j sensitiv safeguards information could be disclosed -
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1 to. authorized persons in Commission proceedings under
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protective' arrangements, with minimum impairment of l 3 tlie"p'rocedural 'r'ights of the participants. ,
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l Dra'ft legislation to accomplish these objectives is attached. Also 1 attached is a comparative text showing changes which the draft l .j legislation would make in existing law.
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.; DRAFT LEGISLATION 1
] Add a new Section 147 " Safeguards Information" to the Atomic Energy !
q Act of 1954, as-amended, to read as follows: *
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j . "Sec.147. Safeguards Information -
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In addition to any other authority or requirement' regarding protection
- or disclosure of information and notwithstanding Section 552 of --
3~~' title 5 United States Code, relating to the availability of records, 1
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N the Commission shall prescribe such regulations or orders as it 1
j may deem necessary to prohibit disclosure of information relat- .
)a ing to special n_uclear material, source material, byproduct material, j any utilization facility or production, facility, licensed by the
- Commission, if, in the judgment of the Commission, the disclosure ,
) of such information could adversely affect the health and safety
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c.f the public or the common defense and security by facilitating
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theft, diversion.or sabotage of any type, of such material or
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facility. Any person, whether or not a licensee ,of the Commission,
$ who violates any regulation adopted under this section shall be i
- subject to the civil monetary penalties of Section 234 of this
- Act. Nothing in this section shall be construed to authorize 4 .
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{ + the withholding of information from the duly authorized Committees
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j of the Congress.
j Sec. 2. Subsection 161.i of the Atomic Energy Act of 1954, as amended 1 is amended by striking the "and" before "(3)" and by adding at the end 1 .
thereof the following new language:
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- Draft Legislation a
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-l "and, (4) to assure that safeguards information protected under Section~147 of this Act is disclosed only to, and that aci:ess to any site where activities licensed by the Commission are' conduc-
] ted is limited to, persons, whether employed by a licensee of the
/ '
Commission or anyone else, whose character, associations, and j : loyalty shall have.been investigated under standards and spect-f
.- e M ilcations established by the Commission and as to whom the Commission q .
1 shall have detemined that permitting.each such person to have access
. to such information or to such activities vill not adversely affect -
,. the health and safety of the public or the common defense and security j by facilitating theft, diversion or sabotare of any type, of'any mate-1 rial or facility involved in any activity licensed by the Commission. .
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}.* Sec. 3 Section 181 of the Atomic Energy Act of 1954, as amended, is
- 9
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amended to read as follows:
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d . Sec.181. General . The provisions of the Administrative c
Procedure Act (Public Law'404, Seventy-ninth Congress, -
4] ..
} approved June 11,1946) shall apply to all agency action d taken under this Act, and the terms ' agency' and ' agency j action' shall have the meaning specified in the Adminis-Q e 3
. trative Procedure Act: Provided, however, That in the s
' case of agency proceedings or actions which involve *
, ? Restricted Data, defense information, or saf.eguards infor-1 9
j mation protected from disclosure under the authority of t .
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Draft Legislation - ,
), Section 147 of this Act, the Commission shall provide .
by regulation for such parallel procedures as will
' effectively safeguard and prevent disclosure of
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- Restricted Data, defense information, or. protected
.. safeguards information to unauthorized persons wi.th
], minimum impairment of the procedural rights which would y
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protected safeguards information were not involved.
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- COMPARATIVE TEXT
-l CHANGES IN EXISTING, LAW -
i Changes in existing law recommended by the draft legislation are f
1 a shown as follows (deleted material is enclosed in brackets; and
-y i new matter is underscored):
d
.]a Sec.147., Safeguards Information - ,
$' In additior, to any other euthority or reouirement reoardino
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-l protection 'or disclosure of information and no+witf1 standing
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il Section SSE of title 5, United States Code, relatino to the
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_ j availability of records, the Commission shall orescribe .
.4 21 .such reculetions or orders as it may deem necessary to oro-
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_ $1 hibit' di.sclosure of information relatino to soecial nuclear j ,
. material, source material, bvorcdact material, anv utiliza- ,
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tion facility or oroduction facility, licensed by the
.h-1 C1 mmission, if, in the judement of the ' Commission. the aG disclosure of such infomation could adverselv affect the h
1 . health and safety of the oublic or the common defense and
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j s'e'curity by facilitatino theft, diversion.or sabotace of
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.j any type, of such material or facilitv. Any oerson, whether or 1 '
not a licensee of the Commission. who violates any reculation udopted under this section shall be subject to the civil monetary
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penalties of Section 234 of this Act. Nothing in this section j '
shall be construed to authorize the withholdino of infomation 1
y from the duly authorized Committees of the Conoress.
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1 Sec.161. General Provisions.
In the performance of its functions 1 the Commission is authorized to
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$ toprotectRestrictedDatareceiv'e'dbyanypersoniNconnactionwith.
1 7 any activity authorized pursuant to this Act, (2)"to ' guard again'st ,
1 '
] the loss or diversion of any special nuclear material acquired by any person pursuant to section 53 or produced'by ary person in connection -
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with any activity authorized pursuant to this Act, to prevent any use
.d O or disposition thereof which the Comission may determine to be inimical ,
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.j to the common defense and security, including regulations or orders -
7 6 designating activi:ies, involving _ quantities of special nuclear material .
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i which in the opinion of the Commission are important to the common I
' 72 '
d defense and security, that may be conducted only by persons whose i
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l j character, associations, and loyalty shall have been investigated under i
.] standards and specifications establis'hed by'the Comission and as to d whom the Commission shall have determined that permitting each such *
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'1 person to conduct the activity will not be inimical to the common J
4 e defense and security, [and] (3) to govern any activity authorized pursuant to this Act, including standards and restrictions governing 1 .
-; the design, location, and operation of facilities used in the conduct ;
1
?! of such activity, in order to protect health and to minimize danger to 9
life or property, and $
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Comparative Text 4 .
to assure that safeouards information protected under Section la7
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{ of this. Act is disclosed only to, and that access to any sitpq,
{ where activities licensed by the Commission are conducted is d-3 limited to, persons, whether employed by a licensee or anyone else, whose character, associations, and loyalty'shall have been i
investigated under standards and specifications established by Y
4 the Commission and as to whom the Commission shall have determined 1 -
that permitting each such person to have access to such information or to such activities will not adversely affect the health and 1
safety of the public or the common defense and, security by i, facilitating theft, diversion or sabotage of any kind, of any i) p material or facility involved in any activity licensed by the Ji ,
Commission.
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Section 181. General. The provisions of the Administrative r
j Procedure Act (Public Law 404, Seventy-ninth Congress, approved 9
j June 11,1946) shall apply to all agency action taken under
'. this Act, and the terms ' agency' and ' agency action' shall
) have the meaning specified in the Administrative Procedure
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Act: Provided, however, That in the case of agency proceed-d . ings or actions which involve Restricted Data [or]2 defense 1 information, or safeguards information protected from dis-y j closure under the authority of Section 147'of this Act, the
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Cocmission shall provide by regulation f^r such parallel procedures
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as will effectivel/ safeguard and prevent disclosure of Restricted j
l Data [or]2 defense information, or protected safecuards information to unauthorized persons with minimum impairment of the procedural j
rights which would be available if Restricted Data [or]2 defense l
4 information, or protected safecuards informati on were not involved.
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December 9,1977 ' .
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_SECY-77-611 For: -
The Commissioners
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From: . Howard K. Shapar '
/
j Executive Legal Director .
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'Thru:
. Executive Director for Operations
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DISCLOS'JRE' 0F AN APPLICANT'S LIGHT WATER REACTOR (LWR) PHYSICAL SECURITY PLAN . '
- IN THE HEARING PRO PurWose: ;
. . To provide the Commission with a report (without
~
- recommendations) which it requeste'd on the desir-ability of its current practice and various alter- .
1 4 '
3 J. ' natives thereto,. including. procedural and legisla- j
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.tive changes, of litigating the sufficiency of an 4- , ,
applicant's physical security plan for a LWR.
- 4
, , . Catecory: ' This paper cove'rs'a major policy issue.
s .
i Issue: j."The changes, if any, which should be made in d 1 - .,
'. . current practices for the pr'otection of. LWR Q .,
.s
- f. .,. .- . Physic,a1 security plans in the hearing process.
1 Decision .
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. Criteria: 1.
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The plans need to be protected from unauthorized disclosure.
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{ .If a feature of the plan is properly contested
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. by a party to an adjudicatory proceeding, in-
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' formation should be made available if needed by the hearing participants under procedures f
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Which are designed to prevr'. .ithminimum
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.impaiment of procedural rights, the unautho-
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H 2ed disclosure and compromise of the plan.
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3 1 .y.;'*. . .' ' .?~ . Unnecessary administrative burdens on the' C i .
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". should be avoided.
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Contact:
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W.C.Parler(492-7527) '
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.; 4. Relevant general information concerning the ,
1 Commission's regulatory requirements for LWR t .
,- physical security and the approach taken in the
) ' application of those requirements leading to the 4
4 staff's conclusion on the adequacy of a plan should be open to public participation as much y -
as is reasonably practical, but without the unauthorized disclosure of the sensitive con-
,, tents of any specific plan fo,r a specific site.
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.$ . Discussion: On October 25, 1975 th'e Commission requested the .
4 ^
. staff to explore and report to the Commission . -
j . *on the desirability of our present practice'and j -
. Various alternatives to our current practice
.J '
, , . of litigating the sufficien:y of an applicant's .
physical security plan in an adjudicatory pro-3, ceeding and permitting an intervenor access to relevant portions of the p1an during that pro-t," . ceeding." This report should " discuss procedural J4- -
cha'nges -- either by admini.strative rule or statutory amendment -- that would afford the 1
Commission sufficient basis to make the necessary 3 ,, . findings before granting a license, without ~
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'; submitting the entire physical security plan 4
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to the adjudicatory process, while assuring apprn-j J ,.
priate opportunity for public participation."
5- '
" The scope of this paper does not include the question j '
of the protection of security plans for SNM fuel cycle j; .
' activities. The adjudication of issues relatinc to
.'g , the adequacy of physical security plans has thus far p
. arisen only in LWR licensing proceedings. The dis-4 cussion in the paper is relevent, however, to the protection of physical security plans.in the hearing h(g
~ '
i- .. s process for any licensed activity. .
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a Under the Commission's current regulations, ,
seciurity plans are " deemed to be commercial or ~
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financial information" and are subject to dis-
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l 1 closure in accordance with provisions governing ,
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- that type of infnmation (10 CFR !2.790).
- . These security plans are in the possession of
- f. -
both t.he applicant and the Commission. Al though
- . .there are no Co.~enission rules which explicitly I . . require the protection of security plans in the f .
possession of a licensee, to the best of our know- '
i . -
. . ; ledge the plans are being protected. In essence, 4 .. . .
security plans in NRC hands receive the same .-
d ".. .
degree of protection from public disclosure under- 3" .
+
62.790 as is permitted urier the Freec'om of Infor-
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' mation Act. (FOIA). This authority does not permit
~ the refusal on a generic basis to allow intervening
.. ,. parties to an adjudicatory proceeding to inspect - -
security plans. , ,
n . . .- -
- 1
. Undei such circ'umstances, intervenors, their counsel and expert witnesses may be given access 3 . . .
u',.
,,h to a s,ccurity plan under the ter's m of a protective
-s 1 ~'..~." order. 10 CFR 52.790(e) and 52.740(c). Access to a plan or portions tiereof is given only to j .~ .
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. those who have been shown to be " persons properly .
7 .- **
. . and directly concerned." (10 CFR 52.790(b)(6)).
- .- '.- ,. Under a protective order, a party receiving access ,
'S "- ' ' -
to security plan infomation agrees to protect the
.,5 .' . .' . information as required by all of the terms and f .
. ~ . . r .~ . j ; , conditions of the order which is developed on a case by case basis. In considering whether the 1 . . .
information should be disclosed under a protec-
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tive order, a material factor is whether the
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1 - -
recipient of the information is likely to abide, 1] .
by the terms and conditions of the order. If it g -
r - - ' .'.'
is demonstrated that a particular individual is 1 .
. unlikely to do so, a presidin'g board would be -
". justified in not permitting such individual to i ,' ; ' have access to the information. Up to this time,
~'
.i .
l- '
. .. we are not aware of any violation of the terms and con- .
,.. . ditions of a protective order. Even if security plans l 1 ,7
. were classified. a party to an adjudicatory proceeding would have access to,them under procedures which "will
,n .
. y . .. .
} . . . .
3 . .. . . .
p .
,. * * .\ . .- .
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~ ~ ~
~7
y _
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l . . . .. * . ..,. - .
4 l ,
. effectively safeguard and ' prevent disclosure of Restricted Data or defense information to unautho-i
. rized persons with minimum impairment of the pro-J d
cedural richts which would be available if Restricted Data or defense information were not involved."
(Section 181 of the Atomic Energy Act of 1954, 42 U.S.C.
52231). .
9 .
The penalties for the u'nauthorized disclosure of infor-1 . .
W .
nation which is classified pursuarit to Executive Order j 11652 are more pervasive in scope and more severe than -
j -
.those which are otherwise available for such discicsure '
of proprietary data. If proprietary data is improperly disclosed, the penalties for noncompliance by licensees 1 .
] . ~
could, like any other violation of a regulation of the NRC, range from a simple notice of vi.olation, through
~ ~ -
j .- ..
. i.he imposition of a civil penalty ~or suspension of the
' license by the* Cemmission, to imprisonment and/or., fine
~
1 .
under the criminal provisions of the Atomic Energy J
, Act (section 223). Licensee employees would not be subject to Ccmmission or criminal penalties, but 'cculd
. (1 .
1 . .., "
be discharged by the licensee. Should a NRC employee trake an unauthorized disclosure of proprietary infor-(# . . '., .. E mation the employee would be subject to a fine (not .~
i e more than $1000) or imprisonment (not more than one 1 -
- l- year) or both and removal under 18 U.S.C.1905 if
-)
the information were legitimately proprietary. By j . , . , ,
Way of contrast, anyone who violates the laws -
applicable to the unauthorized disclosure of
.i
.1 '
- classified information is subject to substantial ~
2 '.. l f. . . fine, or im .
.793, 794(a)prisonment or both (See e.'c.18 U.S.C.,1717 j .
? . . . . . . .
.3 . . During 1975 and 1976 the Commission and the Staff
. actively considered alternative means of afford- ..
~
- j .
. . .. ing adequate protection to physical security. plans W 1. '. '."'..
for nuclear reactors. (See SECY 76-283, May 25, 1976.
1 -
The alternatives -in SECY 76-283 are set forth in s '. -
.' Appendix A to this paper). These alternatives con-
) .
.- sidered the protection o,f these plans in NRC hands .
4 . . . ;; . .. .
e t
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5
.1 ,
- J as well as in non-NRC hands. l/ The protection of
.g .
j
- ' ' the plans'in NRC hands focused on three possible -
l , ,
approaches of using exemptions .from the Freedom of j . . .- -
, , Information Act (FOIA), namely:
- 1.. Proprietary information-(the current practice);
i 2 Classified information; and
{
3.
j Legislationwh'ichspecificalliexemptstheplans s
., ,*.. from disclospre. .
] **- *
. After con' sideration of the alternatives and i.ssues
.3 , presented in SECY 76-283, the Comission concluded a .
)
".. 'that it could "make no definitive reco=endation On the classification of reactor security plans or
.'- exempting them from public disclosure by new .-
. legislation pending evaluation of the Commission's f{ - .
decision on the use of mixed. oxide fuel in light
"_ )1 water. reactors."
} .
,. 7.
? ~~
On June 6,1977, the Acting Dire'ctor of Nuclear
^
. Reactor Regulation asked the Commission to reconsider 2 . .' 4 the question of classification of LWR security plans.
4' i , .
"'(SECY77-290). This NRR recommendation was based on 1 .." '.' two fundamental consicerations: (1) the developments l
I -
' indicating a lengthy delay in resolving the issue et d . .
the use of mixed"oxilfe fuels in LWR's; and (2) the 4 "' ' '~
substantial increase in scope and detail of physical J
,' .,~
.
- security plans required to be in NRC hands for the j ~~
2 -
- . .- .y~ .
,,1_] This paper deals principally'with the issue of the protection j ' of security plans during the adjudicatory process. It does j
not deal extensively with other issues, e.g., the protection
' of security plans in non-NRC hands or at all with the matter j l -
of publically available infomation in, an' application which 1 ,
- ~'. could assist in the penetration of a plant's physical security S system. Some of the approaches for'the protection of security i ,* ,- l plans in NRC hands (e.g., classification or legislation specifi-j . .
cally exempting the plans from disclosure) would obviously also 3
. .. *; provide protection for the plans in non-NRC hands. In any event,
- it is obvious that protection of the plans during the adjudica-tory process will be to no avail if the plans are not fully pro-9 .
tected overall. '
A .
_ _ __ , , wrr w-- w - *' "7~~"' ' " ' '
[
y ,
}..,*, ;
implementation of 10 CFR 573.55 (" Requirements
. for Physical Protection of Licensed Activities .
in flu' clear Pcuer Reactors Against Industrial J
+ ,
Sabotaae") served to' further demonstrate and I
magnify the need for adequate protection of the jj -
. . information.
)
i As a result of Commission tction on SECY.77-2ge,' fonner I
. Chairman Rowden on June 30,1977,'sent a letter to
- Dr. Brzezinski recommending that reactor physical 4 .
. security plans.be classified under the provisions of i
. Executive Or
?; ' .
- ' disclosure. ge 11652 This to protect letter, withthem from unauthorized the s,eparate views of
. Commissioner Gilinsky, is reproduced in Appendix B
)) ~
.As of the date of this paper, the staff is not aware of j any roply to.the June 30th, letter.*
'1 ' '
For the purposes of a response to the Com'nission's
-' . , ,- , October 25 request, classification of LWR security.
.. I
, plans. would .go a lon.g way towaros assuring that the 4, ,
plans are protected during the adjudicatory process. .
} ,
This Would be the result because applicable statutory m 2, . - ,
, authority in the Atomic Energy Act, and regulations .
j .. ,
implementing that authority,are in place. Section 181 g ,
of the Atomic Energy Act provides, in part, that in the 4 ( ,. . ' case of Corr:nission proceedings (including both licens-ing and rule making proceedings) which involve
)d
- Restricted Data -or defense information, "the Commission
.. e * ' '.shall provide by regulation for such parallel pro-h , ., cedures as will effectively safeguard and prevent .
ij . .... .
disclosure of Restricted Data or defense information to unauthorized persons,with minimum impairment of J .
1 , .
,/ .the procedural rights which would be available if ~
4 * "
. Restricted Data or defense information were not "
i . . . . involved." -
f -
+
}
f., ,.
c .1 . .
J . Y The Nuclear Reculatory C'emmission has the authority to classify 1 -
natiorial security information pursuant to Presidential Memorandum J '.
. ' of.May 9, lW'i and Executive Order 11652 as amended by Executive
- - Order 11862 of June 11, 1975 which added NRC to the list of .gencies
'.ja
= authorized to classify such information. From the legal standpoint.
0 .' there is no requirement that approval from the National Security
. Council be obtained prior to the exercise of that authority.
88 . . g 4 ; .
.. , ,s .
1 r __ _'. .
_--- ~.,
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.- 7-y . .
+ - .
a . .
=
f .
3 ,
+ ,
Commission regulations which impicment the above
} .
cited portion of Sect. ion 181 are set forth in j 10 CFR Part 2, Subpart I. Subpart I from its j . .
inception until recently applied only to Restricted Data. The Commission amended it last year to cover i - -
also national security information, which is defined 3- (10 CFR 2.902(d)) as including information classified j-l .: pursuant to Executive Order 11652, as amended. (SECY s76-291, May 28, 1976; the amendaient was issued .on 1 -
December 6, 1976, 41 FED REG. 53328). Subpart I
- !j .
, ,, .. provides carefully-struct.tred procedures whereby -
a parties to. Commission proceedings may apply for and obtain appropriate security clearances for access to
] ,
j
... classified material which is essential to the pre-y .
paration of the party's case. Under Subpart I no -
1 access may be granted without the prior appropriate d' .
security clearance. All participants have the obliga-4 , . . . .
tion to avoid introduction of classified information -
.u
~
. into the proceeding; the presiding board may strike J}s -
'. ; s classified information from the proceeding where this would not prejudice the interests of a party or the 1 . - .
'public interest; and unclassified versions of classi-
'i fied papers are required. If classified informa. ion T .
4 ( .
- : is essential for the record, the procedures require ~
j . .. that there be no unauthorized disclosure of that
. ,} .
information at any time. , ,. j j .. .
.~ In view of the foregoing, it would appear that classi-fication of LWR physical security plans is well suited q .
to achieve the objectives for the protection of those S- .
- 4. 'i*". '
plans in the adjudicatory process. The analysis of 1 the problem, however,'should'not end with 'the con-
~
~ 'i .
sideration of the classification approach for the 0
. following reascns: (1) assuming that the Comission Y
- ' desires to wait until it receives a response to former Chairman Rowden's June 30, 1977 request prior to j ..
exercising its authority to classify LWR security p1ans, 3 .
4 'I' '
there is no assurance that the Admin'istration will giva a faverable response or when any response will be 4] .
received; and (2) it is not known whether the present
{9 ".. -
Comission will endorse the position favoring classi-fication which was asserted in that letter as the
. preferred alternative. Consegaent.ly, an analysis will
~ '
3 - 1 5
.- - be made of reasonable alternatives, including classi-
'.- fi' cation, for the protection of LWR physical, security Jj t
'k' j
',. plans in the adjudicatory process.
r The exclusion of all issues regarding LWR physical security plans from the adjudicatory process is not
,1 .
o , . ..
J,.1 -
,Y. !,.. ..
w .
8-
.i .
.! , deemed to be a reasonable alternative. Such an approach would not be consistent with the Commis-a
, sion's October 25, 1977 directive which, among j other things, asked that the alternatives assure appropriate opportunity for public participation. ,
t , In addition, the authority for such an approach :
j would be open to serious question in view of the g
provisions of section 181 of the Atomic Energy 1 - .
Act which require that parallel procedures which j
impose minimum impairment of procedural rights be
- 4 . developed for licensing preceedings involving classified infonaation. I-t would be difficult to
?j
- justify the need for greater protection to be given j
to sensitive security plan information in licensing ~
f , , proceedings than Section 181 now authorizes for classified information.,
])
?
...ALTERffATIVES: The following alternatives, which are not mutually exclusive, have j -
. . been considered: ,
U '
'l. . CLASSIFY THE U!R PHYSICAL SECURITY PLAff AS
".l ) '
NATI0tlAL SECURITY IllFORMATI0t! UtiDER EXECUTIVE '
' . . . ORDER 11652. -
- 1) .~
~
, . . .: PROS: '
~
])b
. a. Information in LWR security plans is j- ,
just as sensitive as is national security 4 ,
information and its unauthorized disclosure J4 .' would provide substantial aid not otherwise t . ,
available to the planning or execution of 5 malevolent acts involving nuclear materia.ls.
4
- b. Statutory authority and regulatory proce . ~
-y . . -
', . dures are in place to provide for handling y ' ,' classified ' material in adjudicatory pro-j*C
- ceedings (5181 of the Atomic Energy Act.and"
-j .
10 CFR Subpart I).. .
~ , .
.l .'$I- .
'c . Basic classification system is an e'stablished and 1, *l - -
Well understood Government syste."1 which provides
. for assurance of the trustworthiness of persons
-l .
who will have access thereto.
~ ~
I *
.' d.- Would protect the infomation at all times.- -
1 1
- e. If the Comission proceeds with its March 17, 1977 proposed amendments to " require certain a -
individuals involved in the operation of nuclear power reactors. . . to receive autho-
'l
, rization from the Comission 'for access to or j .
p -, . - g._ , , ,
v- * ---
,a "i . . .
l h -
9-V . . . .
1iI *
[ ,
control over special nuclear material," the arguments against a classification and secu-(
rity clearance system for LWR security plans l d . . will be less persuasive. '
.t .
}i * -
. f. Existing federal criminal statutes are in place to deter unauthorized disclosures. i
! ~
l '
1 I
CONS: . ,
i g . .
J. ,
. .. .. a. The requirement f.;r national security clear- .
l 4
. , , . ances ,for the soie purpose of having access 2 i f,
to LWR security plan information would impose T ..
some administrative burdens-on licensees and l
.E . >
on their employees who thus far have been able to operate without a classification and security
[y. , , ,
. ., clearance system e . ,.. .
0 u -
- b. The mere fact that infoimation is classi-fied does not automatic
- ally exempt it from I.~ .
brought for a classified document, the
[.'- ,
judge has a duty to determine whether such
. documents are properly classified. (In g
Q ?- .
. . most instances, however, courts have been.
d-reluctant to second-guess the classifications f
'! ~ . ' imposed by the Government).
4 - - -
- c. Classification of LWR security plans under 4 -
~
' Executive Order 11652 might be viewed as I
an unreasonable extension of that authority
. . Which provides that " Official information
.3 -
or material which requires protection against unauthorized disclosure in the inter-i est of national defense or foreign relations
. of the United States. . . shall be classified
- 1) * '
. , '.. . .." The information in LWR security plans 4 ,
is privately produced for the protection of a 1 -
particular nuclear plant. Though "not free 1 .$
, s . . .. from. doubt" careful consideration of this ques-4 -
'tio.n in 1975 and 1976 by a National Security
.~
- . Council Task Force and Department of Justice .
resulted in the conclusion that: There is "a 1 . .
~
- reasonable basis for the legal conclusion that
-j .- ,
- - ., . plans may be classified in appropriate cases."
.g . u .
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y ,
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- f.., . . - -
10 .
' , .! l *.
- c * *
- 2. SEEK LEGISLATION WHICH SPECIFICALLY PROTECTS UIR SECURITY PLANS FROM DISCLOSURE -
a Exemption (b)(3) of the FOIA (5 U.S.C. 552(b)(3))
d
. . . protects information from disclosure which is
'.'i . .
"specifically exempted from disclosure by statute j *
, .....(otl er than the FOIA), provided that such statute 9
. (A)3 requires that the matters be withheld from
~
the public in such a manner as to leave no dis-cretion on the issue, or (B) establishes parti-
.j ~
,. cular criteria for wi*.hholding or refers to
.j -
, ", particular, types of matters to be withheld. "
.?.
j ..
.. .. This exemption permits the government to with-4 l hold information from disclosure under the
.i -
. FOIA where another law clearly requires that it be withheld. There is no such other law
~
which directs that LWR security plans be with-u .
held from disclosure. Legislation of this
]s: . , .
_ type has recently been enacted to provide
's / -
for non-disclosure of 'information which,.in ~
G .
.the opinion of the Administrator of the Federal j ,-l. '-
a * '
.. Aviation Administration "would be detrimental to the safety of persons traveling in air transporta-j '5
,, c . ; ..
' ~
. . tion." (Public Lau 93 '66, a August 5, 1974, amend-if -
-?/. ing the Federal Aviation Act of 1958, 49 U.S.C.
h . '.-- '
/-
.1357(d)(2), 81 STAT. 54). -'
1 . . . . . . . . . . .
c- =
ci ,'
,- . . An amendment to Section 181 of the Atomic Energy
- g .
~~
Act could exempt LWR security plans from disclosure 9 '
.for FOIA purposes. For such an amendment to also d - - -
' assure that LWR security plan information which d .
- h. ..~ becomes involved in adjudicatory proceedings is pro-i '
, perly protected with minimum impairment of precedural
?
. . rights it must in effect provide either (a) for the M . . classification of the plans; or (b) for the trea=ent 1 -
. ., of the plans, for section 181 purposes, as if they
,) ,,..
. . ;were classified. .
a . .
1 - -
PROS:
q -
... e.. - .
a .. - .;...
N
- From the legal standpoint, the authority j
a.
n
' i; would be explicit ~ and would invoke an !
.i
~
exemption in the FOIA which would not likely
- i ,. .
. "[-4
- result in a judge second-guessing decisions v, .
to withhold. -
- b. Would pennit a flexible approach which would permit the adoption of a carefully tailored
-w protection program which is deemed necessary M -
~
__ ~ -- _gc. -
s
, -11 . .
'1- .
1 . . ..
Q- *
. but witho'u t the nec~essity of invoking a federal
[
, classification and security clearance system solely for the protection of LWR security plans. '
? .
. CONS g,
g
- a. Legislation would be required. There is no c
q Way to predict with reasonable certainty j .
what the final legislative product migh~t be
.iq ', .
or when the legislative process would he completed.
- a. - . .
p .
d '.b' Legislation which would all.ow sensitive but j * * '
non-classified information to.be treated as classified information for s181 purposes
? could be viewed as a drastic proposal. (To
- t - -
be effective, 'such legislation would have lj .
. . to provide authority to invoke clearance
, ., procedures prior to the access to the sensi-iy -
tive information.) -
g ' '
i '
. . c. ~ The need for such legislation micht ba f- *
. eN '
difficult to justify in view of: ~ (1) the M w, -
- Commission's authority to classify information; -
{
(2) the authority in Section 181 which is t- ~
.available if the plans are classified; and
~ ...
(3) a Commission decision (as proposed on j , . . ,
March ,17,1977) to use a personnel security
.i . - ~
, ,- program for those persons involved in the 4 . operation of nucl. ear power reactors having
-) ' .
. access to or control over special nuclear 1, .
. ma t.erial . .
'f -
. . d. The mere act of seeking such legishation 3 -
, .. may make any effort to continue to protect 9 .
the plans under existing authority -
J -
.' *s more vulnerable if challenged,. For .
i ,.
example, the justification for the legis-i *
- - - - . lation will depend to some extent on an g- argument that other methods of protection
]1 e .
. are inadequate. ,
y . . .
- 3. CONTINUE WITH THE PRESENT SYSTEM 5
1 .' * -
j
. t ' LWR security plan information is deemed by the j
- Comission's regulations (10 'CFR 2.790(d)) to
,' .. be comercial or financial information thus 1 . .
. bringing that information within the FOIA -
. exemption (522(b)(4)) for conf.idential business 7 '. *-
.- infonna tion. - -
3 i
^
,-,,,,c.c.~ ., ,
-n
l '. . . . . .; . -
. 12
, e, .'..
This FOIA exemption pqrtains to information j .
~
' ~ ~
concerning trade secrets and confidential
- y .
commercial or financial data. Ccmmercial and .
~
financial information includes things such as j *
. corporate sales data, salaries and bonuses of g
, industry personnel in the course of their i 1 ,
. acquisitions. However, commercial and financial j -
information other than trade secrets can be j
~
, withheld from disclosure only if it meets 4
- certain criteria, namely: it must be privileged
'q '
l and confidential; and it must be obtained from a person by the Government. ' Courts 'have ~
.1 . .
defined " confidential" infor:hation as that d,.. .
, ,, ,,, , information which if disclosed would be likely <
1 -
to: (1) impair the guvernment's ability to 1 -
obtain similar information in the future; or i
l
~
(2)harmthecompetitivepositionofthe -
.j person who supplied it.
, l ,
y -
The consensus of judicial opinion is that this f ,
.l . )
- e. . , . , , . ,
exemption in the FOIA does not apply to 1; .u -
general information obtained by the Government d- '
, .. , with the understanding that it will be held
.;5 . .
in confidence. - '
q ..,. .
From the foregoing, it is readily apparent l.jy
. .- that the desirability of-continued long-term ,
treatment of LWR security plans as 'proprie'tary s infomation is not. completely free frca doubt.
' Although a Federal District court has sustained T . -
the present_s -
) ;
' ,,',; . disclosure,5-ystem foruncertainTwhether it is exemptino these plans the frem 1- , .- -
Courts would uphold the Commission's use of a* ' ','
. the proprietary designation in this manner M .*.
in the' face of.a determined legal challenge.
This uncertainty has created concern for j -
,, most of the utility companies responsible -
for the physical security of nuclear reactors.
1 -
1 .
. In this regard, Northern States Power Company
' ~
and Wisconsin Electric Pcwer Company on June
.(O ..
2,1977 petitioned the Commission to change its regulations so that LWR security plans 1 ..- .
i * ,,'
would be classified. Although public
. coments have been received on the petition, j' -
no action has been recommended to the Commission j- **
. . l ,, ,*
on its disposition. (Docket No. PRi4 50-21,
. 'i . .
. 42 FED. REG. 37458, July 21,1977). Staff recom- ,
mendations on the petition are awaiting the reply l
?..
c b
- to fomer Chairman Rowden's letter of June 30, 1977
~ ,-
-t ~
J ~ Porter County Chaoter Izaak Walton Leacue v. AEC, 380 F.Supp.
j .,
. 630 (N.D. ItiD. ,1974). . ., .
q.. >-
f **4
-- _ --.v.. -- - - , . - - -
' ._ ~ ~
~~
\r .* .
- j. .
.j 13 u ,
- to Dr. Brzezinski (Appendix B) requesting that * -
NRC be author.ized to implement a system of
.; , national security ciassification for the security j -
- classification for the security plans for power reactors.
n . w .e I w .
Existing regulations do not provide detailed require- .
~!* -
.ments to as.sure the protection of a security a 1
. Plan in the adjudicatory process. For example, -
- i
.. there are no explicit requirements to assure -
the. trustworthiness of participants in that
?
3 .
process (or of anyone else) who must have ' access to a plan in order to prepare their case with
- q. -
some, but minimum," impairment to.their proce-1 .
1, '
dura.1 rights. Notwithstanding the protection ,
j' '
. *again.st the public disclosure of security plans ~
d i . .
. provided by 10 CFR 52.790(d), disclosure to
- i. parties under a protective order is autho'rized, 5..
and perhaps required under the present regulations.
j . ~s.
The provi.sio.ns of these. protective orders are fash; d,*. - .
I foned on a case-by-c~ase basis without the benefit of
. e
'- any, detailed cuidance in the regulations. They q g .
. ... typically allow disclosure to.the party seeking ,
i
. the.infon::ation (and the pa-ty's counsel),.sub- !
- j -
. . . ject to a limitation on publiefdisclosure. See i A
- generally tansas Gas and Electric Co., ALAS-327, I
.NRC (April 27,1976).and Pacific Gas and j
.. ,Efectric Co., ALAS-410, NRC- , (June 9, 1977). !
a .
~
- . - 10 CFR s2.790(b)(o) of the Co= mission's regulations >
.g - -
provides for in camera (not public) hearings when d -
information sougnt to be withheld is produced. .
l ~.' Security plans for LWR's have been disclosed under i -
. protective orders in at least five proceedings and the staff is not aware of any vi61ations to date of
-i .
the terms and conditions of a protective order.
1 . . .
~
d ,,
In view of the precise statutory basis for Subpart I in Section 181 of the Atomic Energy Act and the l
1 - .
l : i a -
, explicit statutory limitation in that section to Restricted Data and national security information.
... u the detailed procedures in 10 CFR Subpart I are .
.' not available to protect security plans .which are d ..
.'. . treated as proprietary information. It is highly ,
q ,
i a, -
-3y .
.' l * '
.q . .
l q '. g.;.
?
s
. ..,l
^
- m .
.,7 , . , . .-
1..... .*' .
3 .
14 l . . . . s .
7, .
+ -
j} .
questionable in view of the Act's precise treatment of the subject in Section 181 whether the Subpart I
+
j '
procedures (or their equivalent) could be extended to proprietary information under our general rule i .
, making authority. ,
T
- PROS:-
~
3
- ~
'j
- a. System is aircady in use. " " 1 ~ .
- n. .
- g. . , b. Not aware of.any unauihorized disclosures up
- f. ,
to now. . -
n .. .. -
[ -
. . c. System avoids the disadvantages, perceived 3
by some, of imposing a federal classification ll .
,'and. federal security clearance system on a .
commercial activi.ty solely for the protec-i '
.g t! ' '-
., ', tion.of LWR security plan information.
+ -
j ,- .- ,'
~
CON: y -
n, . . *
~
3 ,
.- .- a. - The legal basis for this approach is not com-l[ ,
r, '
pletely free from doubt if there is a deter- .
4 ; . . . .
mined legal challenge to the present system.
t . .
J~ :- : ~-
'/
- b. . Does'not provide the same legal basis , as does A .
classification, for assuring the trustworthi- -
.I
' ~
i-a*. ness of persons who need to have access to the s- .-
.. Plans.
m < - . ..
-j ,
'e,.' , c. Does not provide; for penalties which are either 4 ,
as broad in scope 6r as s.evere as do the statutes i
- applicable to the unauthorized disclosure of
.t classified information.
- 3' 1 .
,d. Does not
.j
- .dures (e.a.provide Subpart foiI)highly (in view structured of the explicit proce-
.- language in Section 181 of the Atomic Energy Act) 4 .
",, to accen=odate the. competing objectives of pro-q -
-* tection of the plans in licensing proceedings
+. '
from unauthorized disclosure, while pennitting
, disclosure, with minimum impairment of procedural
. i , *-
)d .
. . rights, to authorized participants who have
~~i .
shown the presiding board that they require
- g ;A 4 -
access to the infonnation to prepare their case.
1 ? -
l
- e. May be difficult to justify continuation of this system if the Cccmission implements its March 17, q , . . 1977 proposal for a' personnel clearance system a .
r .
6 g .
" ~
~
~ - - - . w ,
v w----w. o - 1 . r ,g ~
- - '; . 15-
,s . -.....
s .
J *
[ -
.' : for individuals having access to vital areas as well as special nuclear material, since many of tne indi-4 1 v.iduals requiring cicarance for access to security plan information would probably have to be cleared j
in any event for access to special nuclear material.q
.4 . --
4 ,
- 5, h Public Law'93-377 amended the Atomic Energy Act'(section 161i) to give j '
NRC specific authority to require clearances for individuals viho perform l .
activities which afford access to or control over SNM. On March 17, 1977, i the Commission, pursuant to this authority,. published a proposed neu Q, -
Part 11 " Criteria and Procedures for Determining Eligibility for Access to a -
or Control over Unclassified Special Nuclear Material" (SECY 76-503).
1 Final rulemaking action has not yet been completed on the proposed part j ., .
inviewofthepubliccommentsreceivedontheproposedrules(SECY774E5(,
' ~
,'s(
As a separa'te. matter, the Commission has previo.usly decided (SECY 76-4153)'
. that means be provided for 1,icensees to have access to classified infor-4 mation pertinent to the protection of their facilities. This would be d .- .
accomplished by publications of Parts .25 " Access Authorization For q' ,
. Licensee Personnel" and 95 " Facility Approval and Safeguarding.of National i .
~
Security Information" in the Commissi.on's regulations. The Staff has not j . E..,yet s'ubmitted proposed Parts 25 and 95 to the Commission for its approval.
-.4 ,.-: . -
- Alth6 ugh proposed Parts 25 and 95 concern only classified information, y .- . they relate in a practical sense somewhat to the proposed clearance 4.,s -
rule (Part ll)'for persons having access to or control over special i
t -
nuclear material. Practically speaking there may be a considerable number of persons requiring only SNM access authorization (Part 11).
It has been estimated that at a typical nuclear power reactor unit, approximately 100 individuals would be subject to .the SNM clearance
- d. , .. ' program (SECY 76-508), and about 40 individuals would require cicarance 1 5-
- 1. - for access to classified security plan information SECY 75-283). However, h, there would be very few persons at a nuclear plant i.e. of the 40) g '. Who would require only access to classified physical security plan 1 . information without having access to or control over SNM. The few .
~l 7
- exceptions might involve personnel who handle classified physical 3
- g,. !,- security) clerical plan information in a manacerial-administrative (e.a.
fasfnon.
~
e 5 . ' ~ Accordingly, if NRC adopts a clearance program for pers'ons having '.
1 .
access to or control over SNM, it is anticipated that most individual 5 .* applications for information access authorizations will be combined with requests for. SNM access authorization. From the standpoint of
.y[
- administrative burdens, there would be an. incremental burden imposed j , .
On licensees (and the employees involved) to the extent that some employees would have to be cleared for the sole purpose of having access to' class 1fied security plan infomation. In addition, the Commission would have to publish proposed Parts 25 and 95 for their y '
. equivalent) to estabsh the acministrative requirements and pro-cedures for cicarance for access to information and for the physical protection of classit ed infomation. ' ~
---r- s ~T.r. "
T r ~~ '
, ~ " ''9*
1 *
~'{ ;
j ,, . .* .,
' j
- 4.
- STRENGTilEll EXISTING SYSTEfi BY EXERCISIllG RULE-A. MAKlHG AUTHORITY.
~
a From the legal standpoint the present system !
1 *
. . for protecting LWR security plans could be '
.]" ,*-
strengthened to some extent by additional regu-
- latory requirements which can be imposed under J ,,
l existing rulemaking authority. The Commission
$ .. .s .
could publish regulations, or issue orders, requir- l 1 '
ing licensees or applicants to protect security !
- . plans. These regulations could require licensees, I o *
' for example, to withhold their security plans from disclosure, to store them in safes, and to limit j
,. their distribution to employees who (a) require .
- l: .* '
the information in the course of employment and gy .
, ,,' , (b)havebeendeterminedtobetrustworthy.
d
. Existing authority can also b.e used to develop
. and publish criteria which would reduce the i
. .- scope of information in LWR security plans that y i. ..1*.'. -
needs to be protected and require the separation of the sensitive portions in an appendix to the lj
. ... , plan. ,,
y ,g, . . .
',y q ,,. ; . ;. - . . .
PROS: -
. 3 .
. . s'
. ' ': ' ,.'". 1. Should enhance protection.
y? . y , . . . .
p < . , . - ,g, Should strencthen NRC's reliance on the g ' ,,, ,
t ;.
~
.: proprietary information exemption for the 2 - -
- c. protection of security plan information in it
~
NRC's hands. ~
n.
'j,
'3. Better identification of sensitive informa-
.J-7 .
../,,.,, . ' tion in a security plan which must be pro-
' tected.
2 . .. - -
.. t *- .
g . Is ,
- 4. Can accomplish under existing authority.
1 .
c . .
CONS: -*
p .
e - ,
~
{ -
' Same as the Cons given under Alternative 3.
.,s .
.J ~ '
H . -
.;..- 5.
' REQUIRE THAT SENSITIVE SECURITY PLAN INFORMATION 1 ' ~*
'. BE KEPT IN LICENSEE'S p0SSESSION .
m .
9 0 '
.*i-
. t '. This approach would provide. that the licensee keep
.' in its possession and protect from disclosure all
.g T -
c ~. * '" of the sensitive LWR security plan information. The r ',* 7 .
staff would review that information only at the itcensee's site. There would be no sensitive
( I- "' '
security plan information in NRC's possession and y ,. .
y .,
,.. ~ r - s un z,
?, , c ~ .- . , . . . - - . _ . , . - . , , , . , - - . . . ,.. - . . _ . _ . . . . - . - . . _ - . _ _ -
.\ ... .
- . g .. ,
.d ,
1, -
- e ll therefore no documents containing such informa-f tion would be subject to a FOIA request. 'If such information were requested in an adjudica-
}l tory proceeding, its access could be limited j
. ., to persons found to be trustworthy since there i i .. . is no legal right under the Administrative Pro-i .
cedure Act to discovery in an adjudicatory
?. .
proceeding. ,
, . .s 4, -
~
PROS:
j o "
4'. * **
1.' Would circumvent the issue which could arise i ..
if there is a determined FOIA challenge to
{7 .
the proprietary exemption. -
y .. .
- 2. Could. accomplish under existing authority.
.t . .
f
. _ CONS: / . .
- y .
4 - -
. 1. Added administrative burdens (time and money) placed on staff,because of necessity to visit
~
J .- ,'
. licensee's site to review sensitive security
~
c- -
t .
0..'
~
.. .. . plan'information. .
~
~
4 d i^- ..
- 2. Would not provide much, if any, greater. pro-7
.- ~
'f' i- tection than the existing system for protecting
<.( - *. '
'. sensitive security plan information in adju-
,4 F- .
. %. ' j . . . ' . . .
dicatory proceedings. .
y, .,
g.. . 3. Would in ~effect provide for staff review on
.' .the basis of an application which is not ym- , - -
C . -
u
.' complete. .:
y.,...
~.- : '
l 4 .
l 6.. GENERIC HEARING FOR EXPLORING SITE-SECURITY-PLAN.. .. '
I l W .
. REQUIREMENTS AND THE METHODS BY WHICH THESE PLANS' 1
l 9, ...- .
. ,,ARE REVIEWED BY NRC. .
4
..- . -Iwo members of the Appeal Board who provided additional cer:ments in ALAB-410 suggested a generic 3 !. . " .: )
1 . ,.. . .; .
hearing as an approach which would permit publi,c
- participation without revealing the complete sensitive details of any particular plant's security
?
l l . ..
I i ..
plan. This approach would be essentially as follows: ,
l
. . . . . i
)i ,.
- 4. Conduct a generic rule making hearing for i
.' l 't j . ..
the purpose of dealing with the following o '
l
.- issues:
, 1 . . .
- 1. The gencric considerations (none of i
.. m
. Which are site specific).of the metho- ]
9, .- ,
dology and equipment available for 1 physical security protecticn.
,v. y , , . . ~ . , -
. . . - . , . - z- r .
m , %
. 18- .
[ .
'The generic rule making proceeding 1 . .
.. *, would be conducted by an ad hoc presiding 3 .
board designated by the Ciiimission. The 1
2 - -
board would consist of some three to five members who have national reputations Q
as experts in the physical security field.
4 One of the members shall be qualified in
. - the conduct of adminis,trative procce, dings.
j -
t -
Members of. the public 'would be offered A .
, '. an opportunity to participate in the 3 - -
. rule making proceeding which, for the most-t part at least,. would be public unless the
..j',
. need arises for sensitive generic informa-tion to:be discussed.
4 ,
Upon completion of the rule making proceed-j .- .- .
ing, the Commission would adopt a regula-
.j
. tion on LWR physical security plans.
.L' ' "
3 -
. .. b; The staff would, evaluate a physical security 1 .
. plan for a specific site to determine whether s
o the plan satisfies the requirements of the
. regulations.
f .. ~
7 s . .: _.-.-
. ..~....... . .- -
{
... ..'. .The staff would be assisted in its review
.'q . . , .. ,. ( '
.*. of specific plans by an independent advisory 4;; *~.
panel of experts who would review each k
specific plan and issue a report on 3 . ,
. whether the plan satisfies the requirements
"? '
- . . of the Commission's regulations. This d' '
advisory panel would be composed of rec-4 4 - "
1 ognized experts on physical security who
- i
' . . need not be the same as the individuals
. serving on the ad hoc board which conducted k.' -
'the generic rul Tmaking proceeding. The membership on the panel should include
.j'
. . .' . representatives of federal, state and local
.- ?
- authorities whose assistance may be called i..
i '
?
for the security plan. The Advisory Ccmittee
.- on Reactor Safeguards, supplemented by
,: ?.' '
necessary consultants, could perform this
, . review function. ~
q .. .. .
a *
} .' -
. i.
. The advisory review panel would prepare a s;* .)
report to the Cor: mission on each security plan which it reviews. The report would be of suitable content so that it would be routinely made available to the public.
~ . .
) . . . . .
- - _ x
- - ' e, ' .. - * * -
39, .* ., 'f ,
.?.
d . - .
e '.. ,
. . . o
- u .
'- ,' c.
If'a physical security plan issue is p'ro-1 .. .
perly raised in adjudications in individual' licensing proceedings, an attempt could be
] /
, made to confine the issues to those which do not go into the sensitive securit'y plan j .
details for the particular. site.
j ,
. . i i , .
, PROS: .-
3 .
- 1. Would probably add credibility to the' '
]o review process for security plans.
[ .- ., .. .
- 2." lMay provide for m' ore mebingful opportunity *
- j -
'for public participation in the rule making process. -
a
... CONS: -
o . : .
j,*%- 1. The regulations 'for LWR security plans
, . , ,, .<7.-
have only recently been established g ..,
- - - .f. ... .
. . (10 .CFR 373.55) . This alternative would t ', ,
.. require that the rule making process be f,.done all over again. ,
N " '
h ' '; ,
~
.f ,
r- . . 2. There is no assurfnce that site-specific ~~~
g .; ' ' . ., : . 7.
. sensitive security plan issues would not j .
- - ,'? , - -
'. , l . s. . be raised in adjudications. If raised, p -
./ , -
, . nothing in this approach would justify g
." . . , . c . .. .
.'....;:. ruling them out completely in adjudica-
,tions. (It is highly unlikely that any
~
p .- .',
J' . .
generic hearing could be sufficiently
.] .
3 . . -
- comprehensive to foreclose the consid-
]4
.e. , ,- -
erati,on of site-specific and sensitive
. fssues'in. individual licensing proceed-y . ~- .
ings).. ,
J-1 ,*. . ,
,. 3. . A generic rule making proceeding would a require considerable staff resources
't e
'..',' . ' l '. . , (timeandmoney). -
. 1 .*
,4. With the exception of having outside experts i . . . . .' -
- ' t . - -
- participate in an advisory capacity, the approach is essentially the same as the 1 , .-
a - .
.. .. ., present system.
1 , ,
,1 .
- 5. There is no reason to believe that experts J .
h*. .
v *- .
of the type contemplated would be interested in performing what for the most part would
., be essentially ministerial tasks.
4 '
1 y -
- l. ..
=
- ) .* .. .
_ --,y -
- * "# Y' "N
.J . . ; ,. , .-
20- *
,J .. . ., .
y ,
. 6. The participation by outside advisory experts
- Would broaden the dissemination of sensitive e security plan information.
+ .
'[ .
- 7. The advisory experts may be subject to being
- f. subpoened as witnesses in adjudicatory pro-
}g -
ceedings. ,
e .
5, ,.
-e
- Considering th,e advantages and di advaatages of the -
y .
l proposed alternative approaches discussed above, toget-1 ,, ,
, her with the Commission's action on a related policy 1 ;
- matter, certain observations can be made. The related 4 .
policy matter is the final action which the Ccmmission
(
will take on the. proposed amendments (on March 17, 1977) .
a
. . to its regulations which trould establish a personnel
}
- Q, .
, clearance system for those individuals involved f-in the operation of nuclear power plants who have 3'*.* .
~
access to special nuclear materials. If this require- '
21 -
m'ent is implemented, it'is likely that many of the -
t :- .
individuals who must receive security clearance for 4- -
that purpos.e would be the.same individuals who -
M uld require clearance for access to security plans.
? .: .
' Since personnel clearances would be required in any
,' . ' r,
.y} .
.': . event, most of the disadvantages which have been advanced by those who argue against the classification r .
.. of LWR security plans would become academic. Thus, assuming that the Commission does not depart frca the
~ '
- a. .
f -
'. policy in its March 17, 1977 proposal, the classificaticn
,'. ~
d of LWR security plans is an alternative which would pro- ,
f' .
'.- Vide some degree of better protection for them without j.;
f itself creating any significant disadvantages. .
~ '
- d .'
If,on the other hand, the Commission decides not to
]4
- - '< ,. . impose personnel security clearance requirements on
. ' individuals involved in nuclear power plant operations i"+ * '
(i.e. it does not finally adopt its March 17, 1977 i ..
. proposed amendments), it would seem equally reasonable
'j *:
.. for the Cerm.1ission also not to require a classification j ,t
. and security clearance system for LWR security plans.
1 .-
.I [- . . In any event, a good argument can be made for the
, d Conmission in its regulations to establish require-
-l , ,
g'- ,, ments for the protection of LWR security plans in the possession of a licensee (Alternative 4). This l
. .i ,
/ l l 1
- can be done by the exercise of the rule making authority currently available .o the Comission.
..y *. ,
., ~.
[
" _,' -= ;
,y - - .
g- .~ .
- v. . o .
21 .
4
'i .
Legislation which specifically protects LWR security plans from disclosure (Alternative 2) would probably provide some additional protection of the informa-1) j tion in the event there is a determined legal challenge under the F0IA. On the other hand, this 1
9 does not mean that the information would.also be 1 -
protected in the adjudicatory process.- Protection
)
- of the information during the adjudicatory proc.ess i would require invoking the authority of Section 181
= . .
of the Atomic Energy Act. This can be accomplished !
2 by,two approaches. .
j d.- One approach, which does not -
i require legislation, is to classify the plans..
.f Section 181 authority applies if infomation is l 5
h .
classified. Another approach is to invoke Section 181 !
' authority for sensitive security plan information
' which is not classified. Legislation would be required to accomplish this approach. A good argument can be
?[
1 c inad.e that such legislation would be of a drastic l
.j ' ~
. nature.. For example, it would permit non-classified t
i .
LWR security plan information to be treated as 1
+! ,' classified information in the licensing process. ;
i 1 ; . Among other things, this would mean that a personnel
.- i clearance program could be established as a pre-y*~.
. requisite for access to the sensitive, but not classi-i n . .
. .t - . ' fied, information. !
y'
_ Coordination: This report was coordinated with the Offices of 4 .
iluclear Reactor Regulation, Standards Develcpment, 9 -
' Inspection and Enforcement, Nuclear Material Safety and Safeguards, General Counsel, Policy Evaluation 3*
g and the Division of Security. .
n .
Schedulino: ELN recommends that this' subject be considered in a l closed meeting since sensitive site specific aspects l j..
of LWR physical security plans may be discussed.
' Anticipated.
_Schedulina t -
Week of January 9', .197 8. .
4 .
z . . . . .. - .
i' ..... .- '. . . . -*
//
,y -
L. + l s
4 Howard K. Shapar f
Executive Legal Director .
"" . 'DISTRIBUTI0ft
., Commissioners '
' Commission Staff Offices .
1 -
Exec Dir.for Operations ACRS i
- AS&LBP
- - Secretariat .
AS& LAP *
. - - . - ~ . + - ~ ~ - -
\ . .
, .. .* . .- . -, t ,
. o , .. . .
. . e, 4 .
4 . .
(J,
= .
z .
. ATTACHMENT "A" .
.<>^ '
i . .- .
i
~
~
' The Co'mmission has previously considered alternative "
Ways to protect reactor physical security infonnation
. from public disclosure. For information in the hands y -
of the NRC, the alternative", including the pros and
.jy y_
'./
cons, as outlined in SECY 7..-283, were:
qj ,
. .1) Treatment as proprietary information
- J .,..' .
- ;. .,, .. .t ,
Pro: System already 'in use .
c,
' ~
..p . .' ., ..
, . Con: Legally most vulnerable to FOIA ' ~
u..
.:.tr
..e - -
. ; .. ' .: .,-l- l. , ,y. ., ; .. 2) 3 . , , . purpose . ' Exemption by the Congress- throug'h a statute enacted for this .
.;g ..,.
- t. ,
3
,. ... Pro: . 1. Most legally defensible -
C-
.y. . 4. . . . , ; . ... .
. . .: o .
g '....... . ,. / 2l, Leg'islation fdrlsimilar purposes-
~
' " .* ,. :. . * ~. .;. " ] . f. : ' ..:*: ".
p -
s .. . .
- .has been enacted. .
a .
.. , a e. . .- : .
f.. ..'.. ".;i.. . . . .,
.: ..'7.'. '. ..; .? Con: Would require a demonstration that other -
, ), .; * ? ': *., c. *" . : '. ; + :, -
. methods are not adequate. . *
- a. . , ,. .... / . .. . ' . .'.- ..
',3) . Classification as national security.information
- . /: : -
'. 2, u)
. .-l .5 - l , G.. .
. . . . Under Executive' Order 11652- .
3 m
,9 System already in use at N C
.- - ; Pro: - -
l .
m ., .
i...,, -
- ** . .z w.
na .. -.
. . . . . . - e Con:'. non-NRC protec't2on. Classification . . would hav *
.. . ~
~ y; 2
.]
.- -por information in the hands 'of' licensees and others, R '. . *.. = i ~. . -
- alternatives included:
..r..~
['. *. . . .
- 1) Classification under Executive Order 11652-a .
u.*. *
- 5-Pro
- 1. Could be enforced on third part,ies as
. :. 5 E *. . .
well as licensees -
" ~
'i . .
., ,2. Degree of protection broade'r than other alternatives. -
y : ,. : *. .
y,. . -
s, e
- e. s
- u .. ,,, . . *. , . .g , .
.. 3 .
s:
g .. .. . . ,- .
j h _ , - -_ - - . _ - - - - , , - .- .- m , , , , , , - - <~-
v g ,w -
w ,s-,,- v,-s, .p, ,,
y,. r
...m.s.,g-- - - - - - y -e- s,y.n.- -,_---+n ,,. ,r -, m,- n-,,,,-
. - r
.r . .
, ... .. 4 .
i o* . . .
_t, . .
2 .*
t . -
1 * *
. Con: 1. Probably imposes the greatest burden i -
. . on the private sector, tilough the J.t least burden on URC .
t .
Y,.
- 2. Other methods can be equally effective .
y ~, " '
m -
' 1, .. .
- 3. Classification questionable for LWRs"
- i. . :. ; ... .
absent Category 1 and 2 material. <' .
- .. . 1 . . . . .
- 2) Specia,1 Legislation-L -
w ,
1 M' - - -
Proi 1. Most legally defensible- .
i ..- .
i!. ' Permits most flexibility in design 1 -
balancing protection, costs and civil
' *l * .
jr . . ' ,; . .' .' ,. . .
liberties ,
- i. .
LF: 'y '. .-
. . ~ ' 3. . Legislation for similar purposes' has
. , .~..
Q..'..:.- been enacted.' :
'\ * .
- y. .. . . .
~
Ik
. d. . '. ..
Con:. 1. .
Would require demonstration that other h : -
.- . . methods are not adequate ;
.vq
. *,. .~.. - -
3,..
.. . . . . , ; f.: .... ; ;
- 2. Uncertain of achieving legislation. .
u .- .
j 1 ', , -
~'
3)' Use of t'he Commission's current authority under r
d'*.- '
- the.Act to require clearances for SNM access- .
.s t .* .
.. Pro:.J1 . Costs would be incurred in connection '
- 4. .
~!;
'... 7. ' . : .
.. With implementing authority to require clearance for SNM access in any event s N.. : -
.a
. ' , 2. Civil liberties r.ot affected beyond
'~ -
. What is necessary for SNM access.
. ;l ..
. ~
r , i... . . .
Cannot assure protection for those p'ersons 1 ,
?
- ~* -
. Con: .
- d. ' . . ' - *. . .. -
Who have access to plans but not to SNM. .
- d. .
4). Use of the Commission's current authority under
- ... '.'- the Act. to impose license conditions- -
4 . .. .. .
- * ~
- s v . .. . .
. .di Pro:
- 1. Least costly of all alternatives n .
'. ) .
- 2. Civil, liberties best preserved. -
. 4 - - . -
m , . .
l
( , i -m
. ,- ,, .. m ._-,m - - - - - - - -
u m 3.
v
.j' . ,
~, .
e * .
9
' ' [
& . 3' .
a . .
y .
] .
~
,>^ -
d,.. ., '
.. Con:
- 1. Cannot assure protection in**third party 3., . -
hands .
- . l
[2.
- S ,- Less assurance of trustworthiness of ;
persons with plans access than other -
- alternatives. -
- p .. ... ... . .
j The National Securi~ty Council affirme'd the Commission's
- j * -
. , decision to delay its decision concerning reactor securi-j
. ..ty plan classification in National Security Decision
- Hemorandum 347 dated January 20, 1977.
,; . .... Guidance was l' . f. provided to the staff via Mr. L. V. Gossich's -L l
. : . .' , . . February 8, 1977 and February 28, 1977, memoranda which '
l
. addressed the subject of implementation of'NSD:4-347.
./ , )
4 , [. h* . .., '. Consistent with Mr. Gossick's guidance, light water J . ' ' , ,<
.' . reactor physical security pi,ans were excluded from '
i .
v ;A *
, f,urther classification consideration for "the preseht ' *
? - .
- . i,
- . s ,
.* time.".
.j.'s
' ~
... On March 17,'1977, proposed amendments to Title 10 q.. '.'. c- . ,;/
- of the Code of Federal Regulations were published in-
' /.! the Federal Recister. In these amendments, which would 4 ~. . M. ;
d ..' .
'l...' ' add a new Part 11, the Commission proposed, pursuant -
- l. 1.' ,L ',,- ;.
- . to its statutory authority under Section 1Gli. of the
) * '
- 'I Atomic Energy Act of 1954, as amended, to " require certain individuals involved in the operation of nuclear "y] . , ., '.. . ,'.1
- .'.. %,. ' power, ..? reactors and fuel reprocessing plants...to receive j
. .,', , .. - , . authorization from the Cenmission.for access to or con- 3 1
trol over special nuclear material." These regulations . .l 3 . . . Were proposed "to utilize a personnel security program
. f as a measure to protect against...". The proposed rule !
3
( , .;. '
.',.. .. ..' would -
establish a clearance system analogcus to the
. h'RC "Q" and "L" clearances although different clearance i " ' ' '
. titles, "U" and "R", are utilized to avoid confusion.
l 1 ".. - *J.- . . . The public cen=ent period for the proposed rule 6xpired'
,'.; [ Hay 16, 1977. Numerous public ccmments were received.
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.While the "cicarance program" does not contain all of 4 .
. the necessary elements to deal with the problem of i .
t'providing adequate protection for nuclear pcwcr reactor j '. i *
., physical security information, it might provide a sub-stantial framcwork within which other necessary changes.
. whose impact would be consequently reduced, could be ;
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wi NU'CLEAlt REGULNf 03Y CDs,H,Hr.SION ( a .,e
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iV@gpg .d . June 30,1977 Drady
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Shapar 1,*4"*
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eeOFFICE OF Tile - -
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d Dr. 2bigniew Crzezinski ~-
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.] Assistant to the President .( -
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- for National Security Affairs -
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2 The White. llouse ','.
Washington, D.C. 20500 ,,
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Dear Dr. Brzezinshi:
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- NSDM-347 authorized the classification ofriensitive. nuclear safeguards information related to significant quanti, ties of strategic nuclear
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. materials but deferred a decision on its applicability to physical
*
- security plans of licensed, privately-o::ned the Presic!ent's April nuclear reac ~
,,Because of recent developments, parti cul arl y 4
f, , isto,tements on nuclear non-prolif eration and energy, ue have again R.<'
- reviewed the question of classifying reactor' physical security plan; .
- , and now recomend that such plans be classified under the provisicr.s j@ "
j of. Executive Order 11652 to protect them from unauthorized. disclosure. As I wrote in my letter of August 11, 1976, to Brent Sc'cwbrof t, the
.*J 'p L l Commission has considered three alternative ways to protect physical -
4 - security information: .
)8 . ... . ... .
.. .. ~
. Treatment as proprietary information.
1 , y B -
- Exemption thr.ough a staf.ute enacted for this purpose .
by Congress..
-- Classification as national' security info /mation under -
V, . 1 - * - c- . . Executive Order 11652. N. J
- ' While the present systen of treating teactor security plans as pro-1 prietary information appeared to us to be adequate for a relatively j: . ..
brief interim period, the prospect that this period will be subs tan.- tially extended calls into question the advisability of continuing to rely on this method of protection. It is. uncertain uhether the Courts fould uphnld the Comission's use of the proprietary desig :nic-
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j . l . ()f, /,b ) g W ) e"./ 4 1 4 ' 4 4 4 & ol. 4 "&" e 8 e* 3 in this manner in the far.e of a deterrnined icgal challenge, a pos.,ibilit-i which has created concern for son: of the utility companies respomibie ' for the physical security of nuclear reactors. (See the attached p titi-3' for rulemaking submitted to the Co:::aission by 1 orthern States P . 2r f - Company and Uisconsin Electric Po. tar Cor.'pany on June 2,1977.) tercover 1 , the use of a proprietary designation does not provide the Cc:c. mission 1
,vith a legal basis for taking steps to assure the trustworthiness of j utility employees and other private parties having access to the nlar.s.1 '
.(See the attached opinion of the Atomic Safety and 1.icensing" App 2al !
. Board of June 9, 1977.) Conseo,uently, we believe that ue should new i i,
- r. scek a more ef fective means *'
to afford tl.2 needed level of protection of -
; . these plans. . . .,
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While a specific legislative exemption f:jm the' disclosure provisions , j of the Freedoti of Inforcation Act would eviously be a means of with-
- a. holding reactor security plans from publi.c requestors, we believe that 9 substantial uncertainties would be assoc'iated with any effort to obtain
?- ' uch legislation. To gain Congressional support, it would be ne:essar~v s
- d. e to demons'trat'e that no other means of protecting these plans exist.
d . .* Since classification is available, and can properly be applied, we j doubt that a pers.uasive legislative case could be made. Such legisia-a* ,
- 1. tion, moreover, would not resolve the most important security concern 1
". on our part -- assuring the trustworthiness of utility and.other privat j - sector personnel (e.g., architect-engineers) and of licensing Sciring j*. participants who now have access to the plans. Hence, we do not b21iav 9 - L a leg.islative approach represents a desirable or effective course. ~
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%c Commission considers classification to be th'e soundest.available means to protect reactot security plans. As you know, !!P.C a..d EROA 4 .' are 'now in the process of consulting with the l'SC staff prior to d
implementing i 50.M-347. ~ When implemented, the nuclear industry will be bsing national security classificatica to protect the. security 1 - plans of those facilities where significant quantitics of' strategic
,j '- nuclear materials are present. The underlying rationale for such a i
* ' protective rbgice extends as well to safeguarding reactor security M plans. As Chairman Anders and I have said in earlier letters on this j'
subject (cepir. of which are enclosed), the national security classifi. j -
, c'ation system is well .understcod by the courts and Congress and provid.
' a fully developed system of governcant-uide procedures and safeguards.
1 . 13.oreover, the use of a dif ferent system to prevent unauthori2cd discic d of reactor security plans would lead to a dual regice of control. uith some nuclear facility plans being subject to classification and others i' .. 1 being subject to anothcr system. ., ,
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- for the foregoing rea. sons, the Corrnissien rcccc.T.::nds that imC be-l authorized to in:plec:ent a system of national security clas iric[ticn for the security ple.ns of po. u reactors. and oth2r reactors not nr r '
covered by the !50.'4-347 decision. Uc urge tic:aly decision on this question since out- licenscas are nou sub 11tting updated detailed - ! security plans as rcquired by our regulations and the Cc mission will
,I, .
trish to give these plans the caxicum possible degree of protection r from unauthorized disclosure. .
~
* 'C,orcmissioner Gilinsky does not agree with the above vicus on. this *
. issue. . A rcernorandum setting out his separate views.is attaciied.
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Separate view of Cca. Gilinsky * ** 1 .
. Petition for Rulemaking - 6/2/77 '
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. SEPAb*.TE VIEh'S OF COMMISSIO!!EP. CILI!!S1;Y '
1 Thu matter at issuc *is 'not whether certain security aspects of priva te cc:.=crcial nuclear power plan ts -.- j security plans and the like. -- should be protected from
$ , public disclosure, but rather uhat is the wisen t approach q . toward achieving this protec tion -- through E:.:ccutive Order j ,11G52'r. classificntion regime covering national security "nformation, or through discrete statutory authority that
$ i d c'Learly' distinguishes the nuclear case from other activitics. "
] ,- .
. i .
.; ., . One approach is to decido that nuclear power plant 9 . security informs. tion falls within the provisions of m:ccutiva
) Order 11652. This order, however, was designed to . protect
'f.'
national security information. with# n the federal govern:..cn t, y' and the uno of authority under the Executive Order to classif
, private infordtation in the private hector would be unprocc-
' j' dented.* Moreover, the Order defin.hs " national security,"
9
- d. . narrowly, as the " national defense fand foreicn polie.v. of the g .. United States." (E.O. 11652, Sec. 1). Its ex tens.T.on to 3 .. protection of private power plant s"ecurity plans -- wh'ich d a concern the problem of industrial sabotage with radiological 1 .
consequences -- raises the possibilit'y that security' aspects
.1. of other civilian installations which might causc comparchic 6
m*public harm or are especially important economically for-y : examplo, da=s, toxic chemical plants or oil pipelinec and
-? . refincries -- might also be classified under E.O. 11G52. He y have. had enough experier :e in recent years with ab'uscs of the na'tional security 1 .el to warrant great caution in
-)j, ,' approaching the issue here.
+ .
- 3 T The preferable alternative, in my view,.would be to use 3 existing authority uncer the Atomic Energy Act, which I hava
- discussed in previous correspondence, to impose controln t}1 .
over the disclosure of security pla.ns held by private part c: l 1 . and to encure the trustworthiness of persons having access y '.to them, as necessary. The Commission, it should'bc noted, j t .
- 4 .
4 .. 3 .
- l The only other case of extension of E.'O. 11652 to such 1 l ! 'information is the classification of security plcns of l j .
,' . fuel cycle facilitics containing significent quantitics l i
l 1
.- ; of. nucle'ar explosive material (MSDM-347) (which I l l 1 *
. understand is still under NSC revicw.) There is, l
! 1 ., , houcver, a sharp disti:2ction betwcon the protection of
. nuclear exnlosives and nuclear reactors given the Prcisident'c indefinite deferral of commercial plutoniu= l separation and recycle in light water reactots. ;
Marcover, the nuclear explosive material in the rcGu- '
+ -
, lated sector is intimately ticd to governenntat act6v -
- , . ' tics since . virtually all such material is govan:... at-b _ w R ,nn ; . a. <, ,, .1. ~ a cxr,Hiy.a gly:es _
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I ,J : - . , recently relica on thic very aut$ority in proponing.' c<tula.- r . l 4* Lions to require cocurity clearances for reactor personnel -
.J with accccc te, vulnerable areas of thenc facilities. Thin l
$ could readily be extenacd to cover liconece personnel with 0 access to cccurity informa. tion. As for the argument that j .
'the extension of government imposed national cocurity 3 information controla under E.O. 11052 would be pref ernbic .
because it would parmit application of controls to a larger universo of individuals than if the Atomic tnergy Act~ authorit: i . . is ceployed -- to include not only licensee om.ployees but also those of architect-engineers, contractors, and others -- I segard such open-endednocs as a drawback. -
'. 1
~ ..
9 . . y .! The.only arca"in doubt unde'r existin~g authority is our 5 ability to protect the plans, when in government possessien,
'from compelled disclosure under thedFreedom o,f Information j$ . Act. This could be remedied through a narrow amendment to JI the Atomic Ener'gy Act to exempt security plans from such l' dicclosure.* In view of ~the strong interest Congrecs has- 'O . manifested to date in upgraded secprity at nuclear facilities, d.* I would' think thin legislation could be justified .cn the d
- grounds that the continuation of present practico entailed j
legal tencertainties,ovpr I s the 16ng ould add term that and another that way classifica to deal
.jtion h swith is theuncesirab H i c... / ") S FOIA~ problem would be to- provide that the detailed .
- k. ' security plans .ae kept in the licensue's possession (rath2r d ' j than NRC's) and inspected and reviewed ,by NRC on-site.
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m . j.: . Apart from these issues, howevel', there remains a . question, to my mind, as to what level of protection for
]
Q . nuclear power plant security plans is, in fact, warranted. . . -
. It should be recalled that the Commission originally con- . } -
sidered classification.of reactor security planc, and an ' 3 - f associated clearance program, as a parallel measure to the lij classification of fuel cycle facility security plans on the j .
' assumption that, with the introduction of mixed oxide fuel, J reactors, like these facilitics, would be handling s trategic 7 , quantitics of nuclear explosive material. In this regard, the Commission in its August 11, 1976, communication to the d '
-i . , ,
* ',Aldhough, in this regard, I would recall the Commi:r. ion' August 11 letter to the NSC in which uc found the
.e.
option of continuing with our present practices --
] , -]
charactericing reactor security plans as propractar3-S information for Frecdem of Information Act purpoccc and Icavina to licensees the trustworthincuc of personc
. - with accccs to such plans -- to be a saticf actory 9
alternative "without nignificant legal ricks for the - duration of the GES".O proceeding, which u ic then *
)) thought likely to continue for pocsibly two i.. ore re arc.
n.. J . . .
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- IEC exprc=ced the vicu that
- deci: ion to
((c[ b , preclude the use of mixed o. de '
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]q. ments in favor of other.means than el .31Ltcation to 9#t o ".". . -
1 . physical =ccurit 71 a .~. s- .c..om unautho- >cd U t ;": u u l d ., l in our view, bc strengthened." C'. ".'.'"l U S'i o n , m a r c o v ,'. has not trected romc4.o.. . at. po ,. "'h a^ ~ 1 1 threat to the public as funi ~ c]ng as y c. 9 ?at a cocuri :y M ha W ng nuclear exploCive mcterials -- - 3 1 00 Chringent
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physical security rcouirements on t ' U.W tection t againnt.fouer CC:ailant: is r . 1r at reactorc than at 4- f,ucl cycle facilitics). 1
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I should add that wriile 13,1. , 2, '
. S mp rant that tr'ustworthy-persons.'bc.cmPlo ed } reas of the nuclea:.-
reactor faci;ity, I do not t in)- y been made f that a 9overnment security clearan h Pr 9:2m As the .bes t uu..
.to achicvc this end, as I. we~ 7 i;:
muchsmallernumberc'fcer$on,c< orf has ulth regard to the'
;; with access to nuc1 car ' explosive ma5 i
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D 5 ATTACHMENT C
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- 1 MEMORANDUM FOR CHAIRMAN HENDRIE FM. HOWARD K. SHAPAR a
.-i a s DATED 1/23/78
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. .., , , Attachment C
., .N% UNITED STATES 1 'g? j '
NUCLEAn nEGULATOnY COMMisslON f l
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,y WASHINGTON, D. C. 20555
]
%, Eh ,,/ . January 23, 1978 y
j l
.} : l j HEMORANDUM FOR: Chairman Hendrie -
1
.i FROM: Howard K. Shapar i . Executive Legal Director . n 3
SUBJECT:
ORAFT AMENDMENTS TO ATOMIC ENERGY ACT ON THE
.t PROTECTION OF SAFEGUARDS INFORMATION 4 .
a . . j3 - In your office's iremorandum dated January 10, 1978, you requested 1 , OELD's views on, and any recommended changes to, two alternative j amendments to the Atomic Energy Act the purpose of which is to clarify ~. the Commission's authority to prohibit the disclosure of sensitive
}4 safeguards information.
a '
$ It is not completely clear whether the proposed legislation is intend-i ed to address only the protection of safeguards information under the L .
. Freedom of Information Act (FOIA) or to go beyond and provide author- .
.3 s- ity for the' general protection of such information. The General .
5 Counsel's memorancum of December 6,1977 transmitting the draft legis-h . lation to you emphasized that the proposal would provide a statutory y .
. basis for non-cisclosure of safeguards information in the form of agency 1 .
records under Exemption 3 of the FOIA. The draft legislation which he
# .. transmitted goes further by authorizing the Ccmmission to prescribe
( .. regulations as it may deem necessary to prohibit the disclosure of cer-
?) . 'tain safeguards information. This extended scope is appropriate if the k -
Commission wishes to assure protection of safeguards information in J non-NRC hands as well as in NRC hands. J 1 ' Neither alternative deals explicitly with the matter of the protection of sensitive infomation in the ad. judicatory process if safeguards L j 'e- matters (i.e. the adecuacy of physical security plans) are at issue. . fl e Section 181 of the Atomic Energy Act now prov' des that in agency pro-0 ,- ccedings which involve Restricted Data or defense information, the 1 Commission shall provide for such parallel procedures as will effec-
] .q tively safeguard and prevent discirsure of such information with minimum impairment of the procedural rights which would be available j ,- if such infomation were not involved. In consonance with Section 181, j the Commission has established detailed parallel procedures. which ' dea 1 y ,
o , CONTACT: W. C. Pa'rler . '. 3 49-27527 , 1; . L - . b .
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$ Chairman Hendrie s ,
f - y with the disclosure of classified information in its proceedings 4 (10 CFP., Part 2, Subpart I). If the Commission wishes to ccepletely 1 exclude sensitive safeguards information from consideration in its ( proceedings, it would seem desirable to amend Section 181 Yo so provide. L-Such an amendment would seem difficult to justify, however, because the i result would be that, as so amended, Section 181 would give greater pro-j ' tection to non-classified sensitive safeguards information in agency a proceedings than it now authorizes for classified informatien. If, on j the other hand, t1e Commission wishes to give sensitive safeguards infor-
,j mation the same protection in its proceedings as it is now authori:ed to give classified information, Section 181 should be amended to so provide.
i Thus, in view of :he precise focus of Section 181, any legislative propesal
?
designed to prote:t safeguards information in agency proceedings should,in 4 cy view, amend that section.
- y. .
y, g . Prior litigation strongly suggests that if regulations issued under general authority are to apply to persons who are not licensed by the Ccmmission, Jq ,
. as well as to those who are, the authorizing legislation shculd specifically so provide.
See e.g. Reynolds v. United States, 226 F.2d 433, 428 (gth j Cir. 1960) . Safeguards information requiring protection may be in the r . hands of others (u.g. architect-engineers, ccnstruction contractors and - security-system venders) than NRC licensees. The legislation should prc- -
- d . vide specifically that the regulations which it authorizes the Ccmmissicn 4 .to prescribe to protect safeguards information apply to any person who has possession of safeguards information, whether or not as a licensee of 4+ -
the Commission.
- t .
4 The General Counsel indicatcd in his memorandum of Dacember 6,1977 3 to you that neither of the proposed amendments expressly covers security y . clearances and that a specific authorizing amendment would be prefer-y able for Commission regulations that required clearar.ces for access to safeguards information that was not classified ur. der Executive
$ Order 11652. If the Commission wishes the legislation to provide ] .i authority to assure protection of safeguards information in non-NRC hands, the authority to require clearances for access to such infor- ?y -
v nation is a vital link to assure that it is not improperly disclused. 1' ., If.the Commission desires legislation of the extended scope noted above, 1 l i' tfie legislation should be written to provide for enforcement powers l in the event there is a violation of a regulation adopted under its ;
.- authority. It would seem in this regard that any person violating i
the regulations against disclosure should at least be subject to the j l civil monetary penalties of Section 234 of the Atcmic Energy Act. - ' J The Commission may wish to consider also whether any of the criminal l
. sections of that Act should be made applicable to anyone who violates -
those regulations. .. n ,
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n l 3-1 Chaiman Hendrie - I
'j
- If the intent of the roposed legislation transmitted to you on December 6,1977, is tc provide authority to the Commission so that 4 .
it can publish regulations which will fully protect sensitive safeguards
]
infomation, Alternative 2, with the changes to accommodate the matters noted above, would be the preferred alternative because of its Dreader j scope.1/ A revised comparative Draft "A" which reflects all of the - ' 3 foregoing comments as well as other perfecting drafting changes is - - y attached. If, on the other hand, the Commission wishes the . legislation 1 4
- only to provide a statutory bas.is which invokes exemption 3 'of the l f) , ' ~ , FOIA,.a different approacn should be followed. Draft "B" is.legi.slation,
. which would accomplish only the latter objective. .
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" . ~ 1, Howard K. Shapar .
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- Executive Legal Director -
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. Attachments: : . J -
Revised Draft "A" 9 . .
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. COMPARATIVE TEXT - - * - '
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'- TO ALTERNATIVE 2 -
*"'2;''*
A..
'. Draft "B" - LEGISLATION M '
Q.... WHICH ONLY INVO.<ES . .,'.", ? ,\ . .' .
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.<,. EXEMPTION 3 TO THE .. , / . ,: ,V!- ., -
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..- FOIA ,. -
5..., , , . ,. . Jj j. 2'. Memorandum For Howard k. - \* *'l - y .- ' Shapar dtd. 01/10/78 fm.
- 7J n '. "
C ' :. - O,
.. . i . . Donald F. Hassell
. .s .
9 - - cc w/attaihments: i I . . Commissioner Gilinsky ,' * . . l .i ! .. . Commissioner Kennedy . ; 1.. c .4 . I T
- Commissioner Bradford '
. i*.'. '
L 4 .I . L. V. Gossick, EDO '/. -
. '. l .' .
l "1 - '
.- "J. Nelson, GC :. ' ' " ./' .
l ' ' ' K. Pedersen, OPE Y -
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l , S. Chilk, SECY
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UIt is noted that the Executive Branch's latest draft of an amended i l - Executive Order 11652 which authorizes classification of national security information would allow the classification of any infomatien l 'l . l'
,, the disclosure of which "could reasonably be expected to: Significan:lj
- z. ,y diminish the effectiveness of U. S. Government programs for safeguard n;
. . nuclear materials or facilities." .
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- 4- ._ . , , . . . . - ~ ,
Attachment 1
}
. REVISED DRAFT "A"
.a .
.< . . . . COMPARATIVE TEXT ' '
.i -
TO ALTERNATIVE 2
.i 1 .
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- 1. "Sec.147. Safeguards Information -
] a,. In addition to any other authority or requirement regaIding d
.q protection or disclos,ure of information and notwithstanding Section 552 of title 5, United St'ates Code, relating to the 1
y availability of records, th'e Commission shall prescribe such a
'l -
regulations as it may deem necessary to prohibit disclosure 4 2 . of information eeneerning: -
.n
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. ne t-14m i t e d -te -4 a v e n te ry--d 4 s e re p a n cy- da t a- g e n e r a t e d e . e.
4 ij vader-sweh-presedures s -fdr-quantit4es-e(-spesial
- y. .
. .E .nuelear-material-wh4eh-48-the-epinien-e(-the 5 .
Gemmi s s 4 e n -a re-e (-s 4 g ni fi ca nee-te- th e-semme n
] -
~); defense-and-seeur4ty. .
~
j
% --Neasures-fer-the-phys 4ea4-preteet4en-ef -
i , G.)--quantities-ef-special-nus4 ear-mater 4a4-wh4eh-4n l 4 the-e p4 ni e R-e f-t he- Commiss4 e n-are-ef-s4 g ni #4 ea ns e t' . +
, to-the-temmen-defense-and-secur4ty3-by-whemeyer )
d) .
] pessessed-at-f4xed-s4tes-er-4n-trans4ti-er-fer the-physical-preteet4en-ef-nuelear-fas444t4es- 'i . . .
(4,ev3-p ro d u c tie n-e r-u ti44 aa t4 e n-fa s444 t4 es-e r
.{
e , 9
- any-ether-fasilities-er-aet4Vit4es-)-4nve4 Vins
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- sush-quan ti ties-e f-ma ter4a.i t, 1
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4 . [ (2)--Tieense6-pFiValey-eWRed-nuelcar-reaeteFs* s . j ,{B)--a ny-e t h e r-a c ti vi ty- 4 n vol v i n g- s e u rc e ,- byp ro d u c t e r-s pe cia l-n u el e a r-ma t e ri al s-wh4 c h,--i n- t he f e pinie n-o f- t he-Eeamis sie n s-may-affe et-pu bl 4 e
~ ~
health-and-safety-er-be-ef-significance-te-the 1 . 1 . ., earnmen-defense-and-security, 9 . if-dis ele s u re-o f- 4 a fe rma ti e n-co n c e rni ng-s uc h-me a s u re s
')}
M -may-be-rea se na bly-expected- te- fae414 ta t e- t he f t , 4 .
]4 ,
-diversion-er-sabetage. ,
3 Nething-in-this-sestien-shall-be-eenstrued-te-auther4Ee-the 1: d withheiding-ef-4nformatien-frewi-the-duly-auther4 zed-Gemmittees R
$ .- ef-Gengress] relating:to soect'al: nuclear: material;' source a s .
j,f material, byoroduct material, anv utilization facility or cro-p duction facility. licensed by the Commission,if, in the judement
. of the Commission, the disclosure of such information could
, adversely affect the health and safety of the oublic or the a, -
dj commori defense and security by facilitatino theft, divers' ion or 2 j ,n sabotaae of such material or' facility. Violation cf any regu-lation adooted under this section by any person whether or not g} . j i - a licensee of the Commission, shall be subject to the civil 1 .. y - monetary canalties of Section 234 of this Act. Nothing in this t
,section shall be construed to authorize the withholding of in-i formation" from the duly authorized Committees of the Congress.
I
.l , .
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j, . ,. . j ,
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_b_. The Cor:nission is authorized to crescribe such reculations or orders to assure that infor ation which is rotected 'under
~.' ,
this section is disclosed only to cersons whose character, 9
. associations, and loyalty shall have been investicated under i
[ standards and scecifications established by the Commission
, and as to whem the Co mission shall have' determined that cer-1 j mittina each such censon to have access to such infor .ation ,
~.
will not adversely affect the health and safety of the oublic
; or the co=cn defense and security by facilitatino theft, d
j diversion or sabotace of scecial ntelear material, source U [a . caterial, byoroduct material, any utilization facility or j ' productien facility,'lteensed by the Cc aission. j .. . . C (all new: not covered in Alternative 2) W j 2. The proviso clause of Section 181 of the Atomic Energy Act cf 1954, j W a.s amended is amended to read as follows: n i d Sec.181. General . * *
- Provided, however, That in the c
case of agency proceedings or actions which involve Restricted
)1 .
j Data [or]2 defense informacion, or safecuards infor ation
-5 ,
s
) -
protected frca disclosure under the authority of Section 1 *7 of this Act, the Cormission shall provide by regulaticn for such i a parallel procedures as will effectively safeguard and prevent 3 , . disclosure of Restricted Data [or]3 defense information, or y . protected safecuards infer atien to unauthorized persons with
! minimum impairment of the procedural rights.which would be
.n- eng
- available if Restricted Data [or]t defense infor=ation, or l' -
' protected safeguards information_ were not involved.
4 *
's .
_ Attachment 1 s , *
- U
_ DRAFT "B" 3 ' LEGISLATION WHICH OflLY IflV0KES _- EXEMPTI0tl 3 TO THE FOIA j . f
- d Sec.147 Safeguards Information._ .
In addition to any other authority or requirement regarding
.y protection or disclosure of information, and notwith,sta'nding Section 552 e
of title 5, United States Code, relating to the availability of records, -
-{ the Commission shall prescribe such regulations as"it may deem necessary
.q -
g a to prohibit disclosure of agency records relating to special nuclear material,
- 1 source material, byproduct material, any utilization facility or production facility, licensed by the Commission, if, in the jbdgment of the Commission,
,$1 the disclosure of such records could adversely affect the health and
.f J safety of the public or the common defense and security by facilitating
^ ~
[ theft, diversion or sabotage of such material or facility. Nothing in ~
.f ] l'.
this ~section shall be construed to authorize the withholding of informa-i tion from the duly authorized ~ Committees of the Congress. Nothing in
] this section shall be construed to affect in any way any authority other-
)
~
wise available to the commission to prescribe by regulation or order o c requirements for the protection of safeguards information by its
} licensees. -
1 - m.^ .. - i rI 1 *
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r e; - M acamenY. i
< 1".y'.C. . o.%. ia .
, uuct.cnn nLGULM OnY COMMI' JSION "5
. .s
..(. l ) .,. .,'. . I .. ?,, .
WAslittJG70N. D. C. 20V.,5 3 ... ..
. yN>(y .
9 J o,s*/ .
. January 10, 1978 .
3 . s orrscc or wc -
)
CHAlut. TAN
--J . .
;4 ,
3 .. . . . a . . -
.j -
44EMORANDUM FOR: Howard K. Shapar, Executive Director
~~
1 - a . Office of the Executive Legal. Director .
..i . . .
1
. FROM: - -
Donald F. 'Hassell, Lagal Assistant n\ l *
.s .
, to the Chairman ,
j
SUBJECT:
FOIA EXEMPTION FOR. SAFEGUARDS INFORMATION s . . g .
+ .
p a . .. . fi. - Chairman Hendrie would like OELD's views on the two alternative J.n .S- . amendments to the Atomic Energy Act. drafted by OGC regarding the 4, .
] ~ '.
< .1 : above-captioned matter (see enclosure).
Also', he wants you 4 .- -
.J. a - ?. ' to pro'vid'e any recommended changes. .
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b.: ~" :' '
** Enclosura:
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Memo fm JNelson to '"."- 1 - * *
~ Chairman Hendrie dtd 12/6/77 4 .s. .. - ... -
a .
. ;.~... .
.a
.cc n/o cnciosu..re:
' .~... .. .
.' Chairman Hencrie .
1, Commissioner Gilinsky . . . . , . ,
.. Conm.ssioner Kennedy
. Commissioner Bradford . .. .'
. 1 7 Ken Pe'dersen, OPE - - '
1 . ..
~
.]. .
S. Chi 1k '
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~. .
3 i
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. ..cc w/ enclosure: ..
L. V. Gossick
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- A
, , NUCLEAR HEGULATORY COT /.MI3:lON . ,
I * *
, $. 3 -
* . WA5lIlNCTON,0. C 20:55 - .
\
*;M$. e g.gr...gliWiD. l n,,,9 g s
- "0Ec 6 1977
. ; r. . .: .
. . . . . .s. *
] HEMORAllDU'i FOR: Chairman Hendrie- .- ,
a *. . . FROM: *
- Jerome Nelson, General Counsel L - -
3 C..A1.L..A u . i , ..
SUBJECT:
..F0IA EXEMPTION FOR SAFEGUARD.S It! FORMATION... .
2 7r s : 51 . 1 . .
~
L
- s. Our approach to this matter has been to s* raft an amendment to the -
f".d*:,! .. Atomic Energy Act that would knable thc nRC to require that safe-guards information not be disclosed. Such information, in the fom J ;, ; Of agency records, would therefore be exempt from required dis-
. closure under the - -
F0IA by virtue of Ezemption 3. .
;f. . C - .. ::.
f 4"
;;>; .~2,; .
'; ;* :, concerns
.tthich .. , Two physical alternatives protection are of attached. nucicar facilities ' Alternative or activi-1 cove
. 7.': . v ties and which is sensitive because of public health. and safety.
q ,, c .* concerns. Alternative 2 is more ccmprehensive. It covers, in . 1 .:- . ;';. addit' ion, safecuards informatim v h sensitive from a cc=en k yi..,**- .' ".
; ,defense facilitiesand handling s'iicurity strategic stancpoint special (e.g. nuclear , information material). regarding In either. f.el -
1, ,... . . . 1. case, existing authority to classify information under E.D.11552
- v%l :s' i '. a3 is.not affected.
. . .c. -
.z.
- .- .s.
i . :. . : .- . . r # .: ., . .. ,; .
*. .' t % . .The purpose of these legislative proposals is'to clarify the Cem-3 . ' . : .e taission's authority to prohibit / prevent the disclosure of sensitive W. .' security information. The provisions do not expressly cover
.3 . * . security clearances, and a specific authorizing amendment would be
! . ' ' 7 : preferable for. Ccamission regulations that required clearances for.
d
.' .. l access to safeguards information that was not classified under
-s :;.. - : . E. O . -
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' * * 'c.c: Ccmmissioner Gilinsky ' ' # t ,: : .' l'.. N ?^ .
' .';# i . ; * - /* " .*
; Q. .. . , '
Commissioner Kennedy
~
* "i.' *'~.
~
. . . . ' ' . ' . * - {.; . , * .
' 3. l.. .:*. *
- .:.:3 Ken > +Pederson, .. Commissioner OPE Bradford .-'
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CONTACT: . .- .. . C. H. Reamer , e
- 634-14G5 -
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4 .i ..' . Alterna tive 1 s .. .
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- . '"Sec. 147. .
SAFEGUARDS INFOMATION..--In addition to any othc.r
.f
]* .
authority or requirement regarding protection or disclosure of infor-es . . k ,
., mation, nd notwithstanding Section.552, of title 5 re.lati/ng to the
{* .".o ' availability of records, the Cctr:aission shall prescribe such. regulations s..... . c.
>{ . .. , ,
a,s it may deem necessary to prohibit disclosure o'f information concern- - 3 . ... ..., .
- ing -measures for the. physical protection. of:
~
3 " *d. .
. ~ :... . . : ,.
. . . . ... n .. .. .. . . . . . . .... . . ... - .
}w . : ..::;;./,:"a. ...: ...- :..:>licensed, .
- ' ~
privately owned nuclear re)ctors; lt , . f. s .. .
. [:- '.:
h.
+
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*b.0 'any other activity involving source; byprod0ct or . ~ - -
3 .. *
' . . .~... . ...
.h.i,' ..,,. :. :: .: i'...;.speciai nuc1 ear.
~ . .
material uhtch in the opinion of
,w. . . ..
f...,;-
?'i. '.:0.". .< .the Commission w 1 . p:, .: .
m'ay affect public health and safety,.
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,';: .if disciosure of information concerning such measures may be reasonably
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t.W***.. .L . ;expected to facilitate theft, diversion or sabo'tage. Nothing in this -
.Is .[. 'l. . .. section' .ihall be construed to authorize the withholding of infomation
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* ' ,U . from the. duly ..
authorized Committees of the Congress. - P.;*.'.... '
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A.lterns tive 2 h* . Sec. 147. SAFEGUARDS It!FORI*ATI0tC--In addition to any other 4 . i . . . J. a
' authority or requirement regarding protection or disclosure of infor- . .
],. -
' mation and notwithstanding Section ,552 of title'5 relating to the a . . .
.,y 9 availability of records, the Commission sijall prescribe such regula-( . . , .
R .'c . . . tions.as it may deem necessary to prohibit disclosure of informatica
~ . ' * . ** : . :. .' .-
. concerning:: * .' .
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e :..-; .- . h procedur.es, ' for quantitles of special . . nuclear
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2%...l .l: ! . ' to th'e common defense and security, by whomever l ': " , . . . 2(. ,t.'. : c'ss. esse.d at fixed sites'or in transit, or for n . .- . Q . , ' . ' , ,' .. "' '. ' ' ; .-(.J . [,l the physical protection'of nu' clear'facilitics . S , I' ..t* . [7 I",.! ,?.? , (i.e.',' production or utilization facilities or
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%y . ." .' l..', '. 2'[.','.'. *,T.' .s.'any other facilitics or act'ivitics) involv'ing
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such quantities of material;
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' . .* (.2) licensed, privately owned nuclear reactors;
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1 or sp'ecial nuclear mbterials which, in the
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.. in this section shall 'bs construed to au'thorize t!'e' uithholdii 3 . . .
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s .. . :. .,.of information from the duly authorized..Comittees of the. Congress
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. . $.4 . March 6, 1978- SECY-77-6113
C< b ~ UNIT f D STAft1 ,
'-(,
/
'I f NUct.E AR ; REGlJt.ATORY . COMMIS$10N A l
- QT - . - . -
For: J
-Th$$lfKcTerieSS1ON 1 TEM 0[j 1 From,:
Howard K. Shapar
;
- Executive Legal Director j i
.< ,M Thru: ' Lee V. Gossick, Executhe Director fcr Oper biens
/
f
Subject:
DRAFT AME!!DMENTS TO ATCMIC ENERGY ACT CN THE PRCTECTICN
; 0F SAFEGUARDS INFORMATION AND RELATED mal ERS
Purpose:
To present to the Commiss16n, as requested, refinements d . in the draft legislation which the Chairman rect.estad { on'thfs subject.
! Discussion: In its consideration of this subject on Feoruary 21, 1972 j (SECY 77-611 A), the Commission asked the staff to consider i possible refinements in the draft legislation in certain
- j. discrete areas." This paper is responsive to that reques:.
l The draft legislation 41th the refinements is in Attach' men:
,j A.. The changes which ha've been made to the draft legislati:r !
1 forwarded. to the Commissien in SECY 77-611 A are as set -for: d in the comparative text ir. Attechment B. A comparative te.<: j i
% of changes to existing law is in Attachment C.
! .The draft legislation in SECY 77-611A consisted Of: (1) A ne
] section 147 to the Atcmic Energy Act which would au:hori:a ;
q the Commission to protect unclassified safeguards informa:f r ' j ' from unauthorized public disclosure; (2) An amencment to Section 1611. of the Atomic Energy Act which would autheri:e
.$ the Commission to establish a clearance program for ic:ess
( to such safeguards information and to sites en ahich a:tivit L y licensed by the Commission are conducted; and (3) An amen:. e : ! i to Section 181 of the At:mic Energy Act te extend its spec a'
$ procedures foi handling classified information in agency i proceedings to unciassiff.ed safeguards information which r.se::
J to be protected from unauthorized disc.losure. 1 l f Possible refinements to the draft legislation suggested fer j ' consideration at the February 21, 1978 Ccamission meeting 3
. were directed to the proposed section for the ;;rotecticn of unclassified safeguards information and the acditional
, authority for clearance programs. The refineme ::s to these sections will now be discussed. There are no su1ges':ed ,
substantive revisions to the propcsed amencmer 3 to Se::::" 1 181 of the Atcmic Energy Act,
. . Conta c t ; Pcward X. Shapir, I'0 _
n , . 43-27308 - l }* Niiliam C, ?arier, CELD 49-27527 7 yyjg/f/ffAff L .
- See SECY .emo to EOC, 3/2/73
J. . - . [ A. Section 147 - Protection of Safeguards Information 1
. 1. Al major refinement suggested was that this section shouk :e
]
= more definitive on- the kind of unclassified safeguards ir': -
mation which should be protected. This has been acccmplis 3: j -by adding the underscored language in Section 147 in Atta:- r y
- a. The added words explicitly provide that the informati: -=
be protected from unauthetized disclosure is safeguards' . information relating to the protection of any' facility li:5 ::
; by the Commission against sabotage' of any type. The added i
words also would afford such protection _ to information re:Ir * -
, to the control, accountability or to physical protection E r-j theft, diversion, or sabotage of any . type, of any nuclear materials 1.icensed by the Commission, whether in transi: r 1:
? '
$ fixed sites. The safeguards information may include in#:rar
- j . pertaining to security plans and plant equipment used. f:r . E protection of such materials and facilities against theft, i diversion, or sabotage of any type. The protection of suc-safeguards information from unauthorized disclosure wou'.: l' :: 1 J
(as in the draft. legislation in SECY 77-611 A) require a judgment by the Commission that suc'h disclosure could advens' l affect the health and safety of the public or the common j defense and security by facilitating theft, diversion, cr j sabotage of any type, of nuclecr material or facility li:E :E:
. by the Commission. 4 4
2 ., 2.. The adequacy of the draft's . covera ~ge of nuclear materials '- 8 transit was also discussed at the February 21 meeting. j Although that draft did_ not reference explicitly nuclear o j materials in transit, such materials would have been c: vere: a j by the authority to protect unclassified safeguards'inf:r- ! mation. On the other hand, although not needed, explicit .l 1 reference in the language to nuclear materials in transit :1-
;. be easily included to eliminate completely any doubt whi:.-
i
, might exist in this regard. Language making such a refersr:a 1 has been added to the refined draft.
?
h f 9 3. The staff was also asked to explore whether reference shci-4 be made to the common defense and security as well as to j the public health and safety in the proposed legislation. k
) 4 ,
It is our understanding that a reason for this question being raised is, superficially at least, the apparent
? , closeness of authority based on common defense and i' security grounds to the " damage to the national security" test for classification under Executive Order 11652.
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3_ t . l . Executive Order 11652 provides authority'for the i classification. of national security information 1 - and material. Information which meets the criteria for classification under the Executive
- ];
Order must be classified. 1 The test for assignment of the lowest classification 1 category under Executive Order 11652, is whether the j unauthorized disclosure of official information or material could reasonably be expected to cause damage to the national security. a
.j Proposed amendments to this Executive drder would include as a category which m'ay be considered j for classification, information the disclosure of which "could reasonably be expected.to" . . .
1 "Significantly diminish the effectiveness of -l [ U.S. Government programs for safeguarding nuclear y materials or facilities." Information which falls ! j into this category could not be classified unless
, - it is also determ1ned that "the disclosure of such d 'D information. could reasonably be expected to cause ' 'd at least significant-damage to the national security.'
i *. The words "the common defense and security" and i .d
" damage to the national.. security" are of course i different and are 'used in different contexts. The 3 words " damage to the national security" are used a in an Executive Order the sole purpose of which is to establish requirements for the classification j of national security information and material. The ; ,, .words "the common defense and security" are frequent-ly used in the Ato'mic Energy Act of 1954 and, along 1
( with "the public health and safety" are the two - A bedrocks of.this Commission's statutory regulatory 1 authority over nuclear materials and facilities. j The words " common defense and security".as used i in the At'omic Energy:Act have been construed by.
'j one court as follows:-
i : j -
... the internal evidence of the [ Atomic h Energy] Act is that ' Congress [in including E -
'- the common defensc and security in the U Act] was thinking < f such things as not allowing the new industrial needs for
]
q' nuclear materials to preempt the require-ments of the military; of keeping such s q . n .m.. ..g m .
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-[ raaterials in private hands secure against loss or diversion; and of denying such
; materials and' classified information to persons whose loyalties were not to the q
United States. Siecel_ v. Atomic Enercy Commission, 400 F.2d 778, 784 (CAOC 1968)
$ On the other hand, the words " damage to the national security" do not appear to b'e used as words of a'rt 4
which have_ any particular distinctive meaning other q 3* than the message which they communicate. In any event, the " damage to the national security" test required for the classification of national security i information under Executive Order 11652, as well as j under the proposed amendment thereto, is unquestien . j ably explicitly more restrictive, because of the ' g finding i and sec,urity" required, than which authority the unqualified " common the Atomic Energydefer.:s Act
'i of 1954 bestows on the Nuclear Regulatory Commissien
] for regulatory purposes.
] For some decades, Executive Order 11652 and its
] predecessors have provided the general authority
! , to classify national security information and I '
material. If information could not be classified N l as national security information under Executive Order 11652 or its successor, it is extremely i doubtful whether classification for that purpose
? could otherwise be given in the absence of explicit d statutory authority. . Reference to the common M1 defense and security in the draft legislation was
-not intended to give such authority and, in our i
judgment, those words, if used in the draft legis-J , lation, could not be reasonably invoked for that
- purpose.
!j With this background, we consider, as requested, g whether "the common defense and security" should be referenced in the proposed legislation. There are a number of factors, which we will now consider, 5 ,
suggesting that it would be advantageous. to include a these words. - 0 8 . N . The substantive statutory. authority to license d . and regulate special nuclear material, source
] material, byprcduct material, production 1
e facilities and utilization facilities under if Y
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.i a i - the Atomic Energy Act of 1954 rests on both public health and safety and common defense J and security grounds.
. Historically, the need for the safeguards program has relied heavily on the common defense and security ground.
s l . The Commission's regula'tions applicable to
; the nuclear materials and facilities it licenses invoke both public health and l
' safety and common defense and security I r grounds.
. The ultimate test of the Commission's l authority to protect unclassified safeguards '
i information from unauthori s,d disclosure j will probably be in an - :k on the reason- l j ableness of the Commit 2 regulations i implementing that c'c .y . The broader the
- s u bs ta nti v e 's ta t u ' ' 3e for these regulations, j the better off x a defending their reason- ? ableness.
i4 .
. Experience has uc n that statutory authority which invokes only one of these two grounds ] (i.e. common defense and security in Section i
161i(2) of the Act) doesn't readily cever j the entire area which needs to be covered
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for regulatory purposes.
.. . The scope of Executive Order 11652 is not ! under NRC's control. It may be amended by ) a President without Congressional approval; j its scope, as far as the protection of safe-i guards information is concerned, may be
- broadened or narrowed. !
i l j . There may be situations in which safeguards infermation needs protection and it is not j ,- covered by Executive Order 11652 cr its successor. Statutory authority based on i I s, common defense and security as wel,1 as public l health and safety grounds would provide a 4 comprehensive and solid basis to protect
- safeguards information which needs to be pro-tected from unauthorized disclosure.
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. .- If the statutory' authority to be added to-the_ Atomic Energy Act for the protection of-1 -
safeguards information does not rest on j ' common' defense and' security grounds, this 1 . may be given some weight in the event the
-' classification of such information under.
Executive Order 11652 or its ' successor is l tested. , 1
; . On the other hand, there are also factors. to j
; support eliminating ,the reference to common j defense and security in the proposed legislation. '
3 . j
. . Safeguards information which the Commission 1
, would want to protect solely on. common defense !
. and security. grounds probably would also have jl to be. classified' as national security informa- ,
I - tion under Executive Order 11652 or. the. pend- H d ing amendment thereto. o
, . In practically every regulatory area, includ- i
; ing the protection of safeguards inforuation, q 1 it is difficult to construct a regulatory .
j e. authority need based solely on the common I l defense and security ground which does not 1 also involve public health and safety consid-i d erations. j
~
. Generally, a regulatory need may be easier j to justify on public health and safety grounds d than on any commonly accepted meaning of common
- g, defense and security.
Limiting the authority.to protect unclassified
~
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safeguards information to public health and I
.3 safety grounds would not take away from NRC's 3 existing authority under the # comic Energy Act to regulate nuclear materio. '
] facilities.
l Not invoking the common defense and security
~ . .
i
. as a ground for the protection of unclassified
; information could perhaps avoid issues of whether the information should be classified.
q On balance, we believe that the use of both the public health and safety and the cc mon defense and , L security grounds in the proposed legislation is the preferred approach. The draft legislation in Attachment A continues to refer :o both. On :he
! other hand,i f the Commission Wisnes :he .f ra f 1
legislation not to refer to the cc:nnen def.:n;e , a <
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l 1 i and security, this could be done simply by striking l those words, f 1 i . B. Amendment to Section 1611 - Additional Authority For I
; Clearance Programs-y .
( The draft . legislation in SECY 77-611A would have
.) amended section 161i by adding language which would
; have authorized the Commission to establish a clearance program for access to unclassified safeguards. informa- ,
tion which requires protection from unauthorized dis-closure. as well as for access to sites at which act.ivities involving licensed nuclear materials or faci.lities are conducted. *
~ --- .. .. . .
- This edditional authority would under that draft have beer d included in Section 161i because that section of the Atomic Energy Act ,has historically been the. statutory basis generally relied on for the safeguards program.
- It was amended as recently as 1974 by Public Law 93-377' to provide the authority for a clearance program for the proposed rule on access to or control over unclassi-fied amounts of special nuclear material. (42 F.R. 14880, j March 17, .1977). ,
t y , Regardless of where in the Atomic Enargy Act the 1 additional authority for clearance programs is placed, the matter of overriding substantive importance is to
; assure that there is no misunderstanding regarding our .a existing authority under section 1611(2) to clear persons 1 for access to unclassified amounts of special nuclear 7 -
material as stated in the proposed rule which is still
) involved in a rule making proceeding. This need is l ,, not affected one way or the other by where the Atomic Ener;.
Act is amended to prov'ide the additional authority f for clearance programs. d j Although, for the reasons stated, amending section 161i to provide such authority, as proposed in the _j draft legislation in SECY 77-611 A, is an entirely j acceptable approach, this is not the only approach. l
~
l Another acceptable approach is to separate the authority for a' clearance program for access to 1 unclassified safeguards information which must be f
, protected from unauthorized disclosure frcm similar ) authority for access to nuclear materials aiid ,
I
! facili ties .
i
- Considering the foreg'oing the following refinement; have been made in the SECY 77-611 A draf t amendment to Section 1611: .
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1 1. The authority for a clearance program for 5 access to safeguards information would be included as paragraph b in Section 147 and not in Section 161i. This would place in Section 147 all of the authority relating i to the protection of unclassified safeguards l i n forma tio n . ~ The additional authority for i access' to nuclear materials and facilities
~ ~ ~
would be placed in Section 161i.
- 2. The authority for a clearance program for access to nuclear sites on which licensed activities are conducted has been refined to refer to access to nuclear materials or facilities licensed by the Commission. Such a reference would previde the additional clearance author-
, ity which is sought.
1
- 3. The SECY 77-611 A draft would have added a new 1611(4) to the Atcmic Energy Act without chang-ing 161i(2) (which, as stated above, is the statutory basis for the proposed rule on access to unclassified amounts of 'special nuclear J ma te rial ) . At present, Section 1611(2) refers
[ , explicitly only to the protection of special 4 nuclear material on common defense and security grounds, although its legislative history also
, invokes the protection of the public health and 7 sa fe ty . The refined legislation (see Attach-3 ment A) would amend Section 161i(2) by sub-J stituting language giving the Commission the J
authority to guard against the loss, diversion 1 or sabotage of any type, of any nuclear material "i or fac'lity which requires a Commission license. This expanded authority, which would also include j the specific authority to establish a cicarance program for access to such material or facility
; g{ could be exercised on either health and safety Q or . common defense and security grounds.
l 1 -
, Reference to the common defense and security has j been retained as the preferred approach for the j
reasons discussed above. In addition, in view of "q; - the controversial nature of any clearance progra n, it is essential that the statutory authority for i-i be based on broad grounds. On the other hand, if j the Commission wishes the dra f t amendmants giving the additional authority for clearance programs rc: i
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j , j to refer to the common defense and security, this can
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be done provided the common defense and security refer- I ences in the existing Section 161i(2) are retained. I' j these references were eliminated, this would weaken the J existing statutory basis for the sa feguards program and the statutory basis for the proposed rule for accer: l l to special nuclear material. 1 Nothing in the draft legislat' ion would, of course, q requ. ire the Commission to establish a clearance t program for such access. To the extent that the Commission decided to implement such authority, it could do so by rule making. 1
, In summary, the refinements in the draft legislation which have been discussed herein are believed to be responsive l to the guidance received as a result of the Commission's d consideration of SECY 77-611 A on February 21, 1978.
i' j In addition, the refinements herein include a conforming amendment to Section 27dm. of the Atomic nergy Act of 1954 which now provides for the retention of the Commissier 1 . common defense and security authority in agreement states. 4 j '. Since specific references are now made in Section 27am, to special nuclear material and to the loss or diversion
.; thereof, the conforming amendment would also include ,
references to source material and byproduct material as q ,, well as to sabotage of any type. Finally, it should be noted that Section 161i(2) of
; the Atomic Energy Act is also the basic authority for
.i
, the Department of Energy's sa feguards program for f non-licensed governmental activities. Should the Commission decide to move ahead with proposed legisla-1 tion amending Section 161i(2), it would probably be j
4 desirable to coordinate the proposed amendment to the ! i 1 part of that section on which DOE now relies with that ! 4 Ocpartment. l l l 1 Coordination: This paper was circulated to the Offices of NRR, NMSS, l' SD, and the Division of Security. These offices have concurred in the paper. The paper has been coordinated l 1 with OGC and OPE. 0GC agrees that the draf t legislation l l in Attachment "A" is responsive to the Commission's guidance at its February 21 meeting and that the public j health and safety and comon defense and securi:y should j be referenced in the proposed legislation. In a memoran-
' dum which is attached (Attachmcnt D), CGC also states reservations about the breadth of ,the dra f t legf 313tien and says that certain aspects of th.e legislation will l
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-1 not be warmly received by some members of thelongress 4 and the. general public. In addition, 0GC identifies three areas in which features of the proposed legisla-tion must be ' justified. We. agree that these as well tj ' .as all ~ of the major provisions in the' proposed. legis-
. - lation must be adequately justified and a detailed section-by-section analysis will be. prepared if the' Commission decides to submit legislation to the Congress.
on this subject. In this regard, there ar_e other exam-ples of provisions which will require careful explana-m tion,' such as:. the need for~ authority to institute a cleara'nce program for access 'to all nucicar' material
- and all- facilities for which a Commission license is-1 required; and the need for any additional authority
, for clearance programs. OPE concurs in the paper.
t 4
) , . d
. Howard K. Shapar j Executive Legal Director Attachments:
4i A. Draft Legislation B. Comparative Text Showing fl. e Revision's to the Draft
< Legislation in SECY 77-611 A f , C. Comparative Text of Changes .
3 in Existing Law i D. OGC Comments i This paper is tentatively scheduled for consideration at an Open meeting j during the week of March 13 1978. Please refer to the appropriate Weekly 1 Commission Schedule, when publisned, for a specific date and time.
- l .
i ' 0ISTRIBUTION: Commissioners-1 Comission Staff Offices - d Exec P'.r for s0perations
] Secretariat
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; ATTACHMENT A l DRAFT LEGISLATION 1
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W 5 72. 7 I j 4 1 ATTACHIiENT A i DRAFT LEGISLATI0t1 j Add a new Section 147 " Safeguards Information" to the Atomic Energy Act
, of 1954, as amended, to r.ead as follows: .'
, Sec. 147 Safeguards Information - -
f .
- a. In addition to any other authority or requirement regarding I protectic1 or disclosure of information and notwithstanding Section 1
j 552 of Title 5, United States Code, relating to the availability of records, the Commission shall prescribe s'uch regulations or orders
}
f as it may deem necessary to prohibit the unauthorized disclosure j of safeguards information relating to: (1) the control, accountability and physical protection against theft, diversion, or sabotage of any 6 type, of special nuclear material, source material, or byproduct I q. material, whether in transit or at fixed . sites and which requires a
] Commission license; and (2) sabotage of any type of any utilization q
ll facility or production facility, which requires a Commission license. 3 This information may include information pertainirg to security plans P' 1 and plant equipment used for the protection of such materie's and 1 . j facilities against theft, diversion, or sabotage of any type. The l 3 exercise of the authority in this paragraph shall require i judg-6,
; ment of the Commission that the unauthorized disclosure of such information could adversely affect the health and safety of the public or the common defense and security by facilitating theft,.
~ diversion or sabotage of any type of such material or such I facili ty,
3 j -2e 1 l
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- b. The Commission is authorized to prescribe such regulations or orders 1
to assure that information which is protected from unauthorized disclo- ' 1 i sure under this section is disclosed only to persons whose character, associations, and loyalty shall have been investigated under standards and l specifications established by the Commission and as "to whem the Commission j shall have determined that permitting each such person to have access to such information will not adversely affect the health and safety of the j public or the common defense and security by facilitating theft, diversion, L . or sabotage of any type, of such material or facility, j j Sec. 2. Subsection ]61i. of the Atomic Energy Act of 1954, as amended, is 3
; amended by striking the text after "(2)" through the words " common defense
; and security" immediately before", and (3)" and substituting the following:
0 g "(i) to guard against the loss, diversion, or sabotage of any type, of 1 1 any special nuclear material, source material, or byproduct material,
~ ' ~ ~ ~
utilization facility .or " production 7ac'ilitv, whether in transit or at ~ fixed ~ i sites and which requires a Commission license, and to prevent any use or I j disposition thereof which the Commission may determine could adversely affect d the health and safety of the public or the common defense and security; 1 l and (ii) to assure that access to special nuclear material, source material, i - byproduct material or any utilization facility or production facility, 4 i licensed by the Commission, is limited to persons, whether empl'oyed by a
,i licensee of the Commission or anyone else, whose character, associations, I
g-d 1
__ - e . i . . 3-
! and loyalty shall have been investigated under standards and specifications
) established by the Commission and as to whom the Commission shall have g determined that permitting each such person to have such access will not adversely affect the health and safety of the public or the common defense
~and security by facilitating theft, diversion or sabotage of any type, of such material or facility."
4 Sec. 3. Section 181 of the Atomic Energy Act of 1954, as amended, is amended to read as follows: - t Sec. 181. General. The provisions of' the Administrative Procedure Act l i r (PublicLaw404, Seventy-ninthCongress,approvedJune 11, 1946) shall l apply to all agency action taken under this Act, and the terms ' agency' j and ' agency action' shall have the meaning specified in the Administrative l Procedure Act: Provided, however, That in the case of agency proceedings or actions which involve Restricted Data, defense information, or safeguards information protected from disclosure under the authority of Section 147 n ; 9 of this Act, the Commission shall provide by regulation for such parallel s j procedures as will effectively safeguard and prevent d,isclosure of Restricts: j Data, defense information, or such protected safeguards information to e l f dnauthorized' persons wi.th minimum impairmcnt of the procedural rights i ' j which would be available if Restricted Data,' defense information or such j i'l protected safeguards information were not involved. l A
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l Sec. 4. Subsection 274m. of the Atomic Energy Act of 1954, as amended, is amended by revising the first sentence thereof to read as follows: i No agreement entered into under subsection b., h and no exemptior, granted pursuant to subsection f., i shall affect the authority of the Commission under q subsection 161b. or i . to issue rules , regulations ,
) or orders to protect the common defense and security, i to prote:t restricted data or to guard against the i loss, diversion, or sabotage of any typejof special ; nuclear material, source material,,or byproduct ; material.
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'l ATTACHMENT B COMPARATIVE TEXT SHOWING REVISI0tlS TO THE DRAFT s L GISLATION IN SECY 77-611A f4 I i 1
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COMPARATIVE TEXT SHOWING REVISIONS TO j THE DRAFT 1.EGISLATION IN SECY 77 611A
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Add a new Section 147 "bafeguards Information" to the Atomic Energy i Act 'of 1954, as amended, to read as follows: 1 l "Sec. 147. Safeguards Information-
- a. In addition to any other authority or requirement regarding
~
protection or disclosure of ir1 formation and notwithstanding
-)
I [ Section 552 of title 5, United States Code, relating to the availability of records, the Commiss' ion shall prescribe such
, regulations or orders as it may de,em necessary to prohibit the J
AS4.fdid6 3 unauthorized disclosure ofhiYformation' relating to; (1) the control, I g , accountability, and ohysical protection against theft, diversion, or j . sabotage of any type, of [to] special nuclear material, source I material, or byproduct material [any utilization facility or
'J production facility], whether in transit or at fixed sites [ licensed
}
1 by the Commission] and which requires a Commission license; (2) l j sabotage of any type of any utilization facility or oroduction facility, which requires a Commission license. This information
)? may include information pertaining to security olans and ' plant l
1 4 equipment used for the protection of such materials and facilities
, againct thef t, diversion, or sabotage of any tyoe. The exercise of f the authority in this paracraph shall reauire a judgment of the ?
1 Commission that the unauthorized disclosure of such information n could adversely affect the health and safety of the public or the 1 '$ common defense and security by facilitating theft, diversion or sabotage of any type of such material or such facility, q m p.~.~.m pm,w =.;; , .. , - , , . , . , n. _
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b ., The Com:nission is authorized to prescribe such regulations or orders to assure that information which is protected from
) unauthorized disclosure under this section is disclosed only to 2
persons whose character, associations, and loyalty shall have 1 been investigated under standards and specifications established by the Commission and as to*whom the Commission shall have du. - 2 j that permitting each euch oerson to have access to such informa' tion i will not adversely affect the health and safety of the oublic or the common defense and security by facilitating theft, diversion 1
-: or sabotage of anv tvoe, of such material or facility.
4 Sec. 2. Subsection 1611(2) of the Atomic Energy Act of 1954, as amended, 2 l , is amended by' striking the text after "(2)" through the words " common 9 defense and security" immediately before ", and (3)" and substituting ,
, the following: ~n '.
4
"(i) to guard'against the loss, diversion, or 'sabotag: of ]
I any type, of any special nuclear material, source material, b: or byproduct material, utilization facility or production i [ facility, whether in transit or at fixed sites and which requires a Commission license, and to prevent any use or
) dis' position thereof which the Commission may determine could
( j adversely a ffect the health and safety of the public or ~ 1
$ the common defense and security: and (ii) [fand, (4},7 to
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) assure that [ safeguards i'nformation protected under Section 147 f of this Act is disclosed only to, and that] access to any l
special nuclear material, source material, byproduct material 4
- or any utilization facility or production facility [ site is 1'
where activities], licensed by the Commission,, [are conducted]
- is limited to person.s, whether employed by a licensee of the Commission or anyone else, whose character, associations and loyalty shall have been investigated under standards and specifi-i cations established by the Commission and as to whom the Commission shall have determined that permitting each such person to have such access [to such information or to such activities] will k not adversely affect the health and safety of the public or j ^ the common defense and security by facilitating theft,
'i diversion or sabotage of any type, of [any] such material or .
h facility. [ involved in any activity licensed by the Commission.] 3 Sec. 3. Section 181 of the Atomic Energy Act of 1954, as amended, is amended to read as follows: Jk
/
) Sec. 181. General. The provisions of the Administrative S
.j Procedure Act (Public Law 404, Seventy-ninth Congress, approved S
f . June 11,1946) shall apply to all agency action taken under J J; this Act, and the terms ' agency' and ' agency action' shall - 1 l
', have the meaning specified in the Administrative Procedure 4
j Act: Provided, however, That in the case of agency pecceedings 1 or actions which involve Restricted Data, defense information,
)
m or safeguards information protected frca disciosure under the 1
. I,
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