ML20154C245

Comment on Proposed Rules 10CFR10,11,25 & 95 Re Conformance on Natl Policies for Access to & Protection of Classified Info

ML20154C245
Person / Time
Site:	Portsmouth Gaseous Diffusion Plant, Paducah Gaseous Diffusion Plant
Issue date:	10/02/1998
From:	Toelle S UNITED STATES ENRICHMENT CORP. (USEC)
To:	NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-63FR41206, FRN-64FR15636, RULE-PR-10, RULE-PR-11, RULE-PR-25, RULE-PR-95 63FR41206-00002, 63FR41206-2, AF97--3, AF97-2-003, AF97-2-3, NUDOCS 9810060211
Download: ML20154C245 (8)

Text

-

OCT-62-1998 15:55 USEC 301 564 3210 P.02/09 l

=

00CKETED DOCKET NtMBER USHac DROPOSED RULE 10,II,45f 95

@3FR'/IN09 wgggg l

A cleinal Energy corneeny October 2,1998 GDP 98-0204 OFM

e aL The Secretary of the Commission ADjQN g~

U.S. Nuclear Regulatory Commission Attention: Rulemaking and. Adjudications Staff Washington, D.C. 20555-0001 Paducah Gaseous Diffusion Plant (PGDP)

Portsmouth Gaseous Diffusion Plant (PORTS)

Docket Nos. 70-7001 & 70-7002 USEC Comments on NRC's Proposed Amendment of10 CFR Parts 10,11,25 and 95, "Conforniance to National Policies for Access to and Protection of Classified Inform Gentlemen:

The United States Enrichment Corporation (USEC) is pleased to submit the enclosed comments on NRC's proposed amendment of 10 CFR Parts 10,11,25 and 95, "Conformance to National Access to and Protection of Classified Information." Comments are also include Parts 2 and 95 that have not been proposed for revision and on the NRC document " Standard Pra Pmcedures Plan Standard Format and Content for the Protection of Classified Matter for NRC Licens Certificate Holder, and Related Organizations," December 1997.

Thank you for the opportunity to provide our input to the Commission's rulemakmg process.

be pleased to discuss these comments with you. Please contact Ms. Lisa Jarriel at (301) 564 are no new commitments contained in this submittal.

Sincerely,

/1 S. A. IJ Steven A.Toelle Nuclear Regulatory Assurance and Policy Manager USEC Comments on the NRC's proposed amendment of 10 CFR Parts 10,11,25, and 95 :

I cc: Mr. Robert C. Pierson (NRC)

NRC Region 111 Office

}

NRC ResidentInspector - PODP NRC Resident Inspector-PORTS Mr. Randall M. DeVault(DOE) 9810060211 9s1002 POR PR to 63FR41206 PDR 6903 Rockledge Drive. Bethesda MD 20R17-1818 Telephone 301564-3200 Fax 301-564 3201 http://www.usec.com Offices in Uvermore. CA Paducah, KY Portsmouth. OH Washington. DC p

OCN02-1998 15:55 USEC 301 564 3210 P.03/09 GDP 98-0204 Page 1 of 7 UNITED STATES ENRICHMENT CORPORATION Comments on NRC's Proposed Amendment of10 CFR Parts 10,11,25 and 95 62.790 Public Inspections, Exemptions, Requests for Withholding 1.

While not part of the proposed rulemaking package, this rulemaking would be an opportun to clarify the NRC's intent with respect to public disclosure of security plans for the prote classified matter. 10 CFR 2.790(d) now provides for protection of a licensee's physical securi plan and material control and accounting program documents. It seems appropriate to pro classified matter protection plans from public disclosure in the same way as physical security and fundamental nuclear material controls plans are protected. Therefore, USEC requests tha rule language in 10CFR2.790(d) be modified as follows:

D2.790(d) "..Thefollowing information shall be deemed to be commercial orfinanc information within the meaning off9.17(a)(4) ofthis chapter and shall be subject to disclo only in accordance with theprovisions of59.19 ofthis chapter.

(1) Correspondence and reports to orfrom the NRC which contain information or recor concerning a licensee's or applicant's physical protection,]&l@ipidghti(@otiffbn; or material control and accounting program for special nuclear material not otherwise designated as Safeguards Information or classified as National Security Information or Restricted Data. "

lli Criteria and Procedures for Determining Eligibility for Access to or Control Over Spe 2.

Nuclear Material It is suggested that this regulation be clarified, perhaps in 10CFR11.3, " Scope," that it a licensees authorized to possess formula quantities of strategic special nuclear material. The applicability of this regulation is currently hidden in the General Requirements of 10CF Without a very careful reading and understanding of the regulations, licensees who possess nuclear material oflow strategic significance may mistakenly tiy to comply with 10CFR Part 11.

3.

{95.5 Definitions As currently described in 10CFR95.5, a container must have both a " Test Certification Label" a " General Services Administration Approved Security Container" marking to qualify as a

" Security Container". Since either reflects acceptable qualification, one or the other should adequate and both should not be required. Experience hu shown that with time, the test certification labels have fallen off the container and been lost, resulting in an unnecessary infraction or violation with no security significance. Therefore, USEC requests that the rule language be modified as follows:

95.5 " Security container includes any ofthefollowing repositories:

(1) A security)iling cabinet--one that bears a Test Certification Label on the side ofthe lo

.~ _- - -

_- -.. - - -.. - -. - - -.-.-..04/09. - -. -.

OCT-02-1998 15 55 USEC 301 554 3210 P

j-ODP 98-0204 l

Page 2 of 7 drawer, inside wall adjacent to the locking drawer, or interior door platerend ;f is marked.

l General Services Administration Approved Security Container on the exterior of the top

\\

drawer or door. "

This comment also applies to 10CFR95.5(2).

l 4.

$95.17 Processing facility clearance

%95.17(a)(1) "..The !!censee, certificate holder, or other person is required to advise

~ within 30 days of any significant events or changes that may afect its status concerning foreign ownership, control, or influence."

It is unclear what constitutes a significant event or change affecting foreign ownership, control, or It is our understanding that the NRC is responsible for making FOCI influence (FOCI).

determinations. Herefore, the NRC should establish criteria that licensees and certificate holders can use to make the detennination of what events / changes should be reported to the NRC. For example, in 10CFR95.19(b) the NRC has described what " minor, non-substantive changes" i

include. USEC requests that the rule language in 10CFR95.17 be modified to describe the types of significant changes that would require NRC notification, as is provided.in Section 2 302, Factors, of the National Industrial Security Program Operating Manual (NISPOM).

5. ~ 695.19 Changes to Security Practices and Procedures The language of 10CFR95.19(a) indicates that any change to the security procedures and co would require the certificate holder to obtain prior CSA appmval, ne rule, however, only requi prior approval of substantiv_e changes. Further, the language is inconsistent with other pa regulations with regard to the definition of" substantive." Part 50.54(p)(1), the process follow by the agency concerning the preparation and maintenance of safeguards contingency plan

- procedures for Part 50 licensees, describe substantive changes as those that decrease the effectiveness of the security plan.

Therefore, to (i) clarify that prior approval is only needed for substantive changes, and (ii) be consistent with other parts of the regulations, USEC requests that the rule language in 10CFR95,19(a) be modified as follows:

f 95.19(a) "...shall obtainprior CSA approvalfor anyproposed change to the name, location,

&}Qhf&tanty[Qg'ei&]securityprocedures and controls,... These substantive, changes to the Standard Practice Procedures Plan :,';: ".c: :k._.., afll:faclll.f(those, thaitl decrease thiQrdil igectivenisf6fiscurftj) must be submitted to the NRC Division of

(

j Facilities and Security, or CSA, at least 30 days prior to the change so that it they:may be I

I evaluated....

l l

l y

y 7

OCT-02-1998 15:56 USEC 301 564 3210 P.05/09 GDP 98-0204 l

Page 3 of 7 1

6.

695.25 Protection of classified information in storage (a) 10CFR95.25(i) requires the inventory of a container found open. Because the NRC does not require an initial inventory of container contents, it is not clear what purpose the latter inventory serves. Regulations (10CFR95.41) were revised in 1996 to remove inventory requirements for classified documents with the exception of extemal receipt and dispatch records. Further, inventories may no longer have much meaning since documents, computer disks, and other ADP media are easily copied with today's technology. Finally,10CFR95.25(i) has reporting language that is unnecessary and should be eliminated. Finding an open security container would constitute an infraction and would, therefore, be reportable under 10CFR95.57. Therefore, USEC requests that the rule language in if CFR95.25(i) be modified as follows:

G95.25(i) ". The container must be secured by protective personnel and :he ca..:.,;;;

u~' : Gelid ak.5@NW!ightjg jf.Qc}n@@@ej@pp@las soon as t

possible... A ecpar:, $c.:,;g ll ac:l, :.h;; 5;u;; bc. '....:::ci:a :he rcipa,.;!b!c acgional Of. c (;ce 10 CFR par: , Apper.du A, fa siL

,' -.:h a;; liifa,.........

copy :a :he NRC ::a.; a;; afFa :::;..c a;.1Sccu,;;,,,::'. i; 30 day; aj?c; :he cyc;i:. "

(b) 10CFR95.250)(7) requires that keys and spare locks be changed or rotated every 12 months.

It is not clear why locks and keys are treated differently than combinations. Combinations only require change out if evidence of compmmise exists. Changing locks every 12 months can be an expensive procedure at a large facility employing several thousand people. Since both devices serve the same purpose (i.e., physical controls which deny access to classifled matter),

USEC believes they should be treated consistently. Therefore, USEC requests that the rule language in 10CFR95.250)(7) be modified as follows:

Locks i,. ;; be chai.s d a,..: cia:lca.;; ceci,1: ;..:..;h;, and must be

%95.250)(7) "...

e replaced after loss or compromise of their operable keys;"

7.

l95.33 Security Education 10CFR95.33(f) provides an example of the type of refresher briefing that would be appropriate to meet the requirements of this section, namely, the use of" audio / video materials and by issuing written materials." The example appears to preclude written or audio / video by themselves, both of which are adequate training tools. Therefore, USEC requests that the rule language in 10CFR95.33(f) be modifled as follows:

495.33(f) "

This requirement may be satisfied by use ofaudio/ video materials and or by Issuing written materials. "

OCT-62-1998 15:56 USEC 301 564 3210 P.06/09 GDP 98-0204 Page 4 of 7 8.

{95.34 ControlofVisitors 10CFR95.34(b)(1) requires that certain information concerning foreign visitors be provided to the NRC 60 days in advance of the visit. USEC operates a commercial uranium enrichment facility and already implements a security program which precludes the dissemination / exposure of classified information to Foreign Nationals. The advance notification that the NRC proposes to require is more than twice as long as other NATO countries require of the United States and is also in excess of the number of days previously required by the Department of Energy at our facilities.

As a commercial operation with extensive foreign customers, USEC cannot operate under such conditions. Our security program has already been reviewed and determined to be effective in precluding foreign nationals from gaining access to chssified information. Security plans for all visits by foreign nationals are prepared, maintained, and available for review by the NRC. In this way, the NRC can still track the movement of foreign nationals and analyze potential threats.

Historically, the advance notice to the government entity of a visit to our facilities of a foreign natior.al has never resulted in denial of a visit, even when adverse information has been obtained by background checks. Licensees should only be required to provide assurance through documented security plans that foreign nationals do not have access to classified materials. An administrative review by NRC should not unnecessarily burden a licensee who is already complying with the requirement to restrict foreign nationals from accessing classified materials.

Advance notice of such visits to the NRC serves no purpose for a commercial facility such as the Gaseous Diffusion Plants. Background checks / access authorization of foreign visitors to the NRC are not required 60 days prior to a visit, and yet the NRC facilities also contain classified informrtion. We also note that the NRC has not had a policy on this issue prior to this proposed rule and has not demonstrated why such a requirement is now necessary.

Finally, the retention period for maintenance of records described in 10CFR95.34(b)(2) calls for five years. It does not appear that this change is related to the National Industrial Security Program Therefore, USEC requests that the rule language in 10CFR95.34(b) be m 23ed as follows:

95.34(b) ".. Foreign visitors. Licensees, certificate holders, or others subject to thispart shall take measures as may be necessary to preclude access to classified information by foreign visitors.

(l) n.a ;;;;;;;a, da:e. -fhl, ;h, a;;d a, e,.. a:.a;;al afllatia;; a;;d;:a:a;s (e.g.,, esli;,;; all ;.a; d al i lzciishl, affveclg ; visi: ora sall b;prailici:c :he Dlviiiv,. vfFa:lll::ci a;;d Sn.:,

SC i;ja :n L,.- af:hi viii:.

hle.;; a;; abjcct:an to :he,l;;; l3 rcccivcif a,. :h; NRC Dia.;lan of Faclll:;ca a;;d 5;;.;rlri ai;l.:,. ;h; SC ici pu; i, :he y 3: nicri pra. i a3

.clui l:i Q) D.; ll-..:::, ;;r ll7ca;c ha!s;,, or a:h;ri da!!. c:a:n ;ecorda afvu.

fu,-- 5 years bcyand

l.. d.e af

hc visit-

OCT-02-1998 15:56 USEC 391 564 3210 P.07/G9 GDP 98-0204 Page 5 of 7 9.

695.35 Access to National Security Information and Restricted Data The NRC proposes to change the level of security clearance required for accessing Secret-

)

Restricted Data. The proposed change could save hundreds of thousands of dollars by essentially eliminating the need for "Q" clearances at our facilities. However, USEC clearances are maintained by the DOE and we are required to follow DOE personnel security regulations per And although the Secretary of Energy signed the National Industrial NRC/ DOE agreement.

Security PK,en required by Presidential Executive Order, it should be noted that, DOE's Office of Safeguards and Security does not endorse this concept. This discrepancy between the two agencies may result in complications for USEC.

10. 195.57 Repons USEC agrees that changes are necessary in 10CFR95.57. Both the NRC and USEC staff, in previous discussions, have recognized that reports required by regulation were being subm which did not rise to the level of significant events conceming classified matter. However, while the proposed regulations should reduce the number of telephonic reports; it will not decrease th greater administrative burden on the cenificate holder created by the required written reports.

NRC should adopt a reporting system similar to that used by the power reactor industry and required by 10CFR 73.71.

Specifically,10CFR95.57(a) should explain what type of event would require a one hour report (similar to 10 CFR 73.71(a)(1)). The current and proposed language is too generic and many cenificate holders / licensees are not aware of all " Federal Statutes related to classified Similarly,10CFR95.57(b) should be revised to include those events not rising to the level of events described in 10CFR95.57(a). Events involving infractions, losses, or compromises should be logged for review. All loggable events should be sent to the NRC on a quarterly basis. This introduces a two tiered approach with security events described in descending order ofimportance with similar importance placed on reporting / documenting of events to the NRC.

The requirement for 30 day written reports (follow up) should be eliminated for all except one hour repons. Experience has shown that these follow up reports involve extensive review by management and are time intensive. By using the logging process identified in 10CFR73.71, the NRC would still receive written indication of an event for inspection review or follow up. Such loggable events could show corrective actions or problem repon numbers for further review if desired.

Also, the NRC should consider a single point of contact for reportable events. The proposed t

reporting requirements require multiple reports within NRC. Experience has shown that time delays may occur before the proper NRC individual can be located. This places severe time constraints on a licensee /ccrtificate holder who must make a determination for reponing and notify two separate offices within the NRC of an event.

.-._-..~. _ _ -.. -

-. - ~ ~ -..

OCT-62-1998 15:57 USEC 301 564 3210 P.08/09 1

GDP 98 0204 Page 6 of 7 i

USEC believes that the criteria for submission of NRC Fonn 790 more appropriately belongs in Section 95.37, " Classification and Preparation of Documents." 'Ihis submission ofinformation is similar to identification of Authorized Derivative Classifier listings. No similar report is listed under the National Industrial Security Program. Additionally, NRC has changed the requirement for submission of Form 790 fsom monthly to "...as completed basis or every 30 days." Typically, the NRC has used the 30 day time period for submission of reports or events, not standard document submission. Because USEC files this form on a regular basis, we prefer to keep the current wording, "...on a monthly basis," to maintain consistent reporting intervals.

Therefore, USEC requests that the rule language in 10CFR95.57 be modified as follows:

__..".__.__,,m_,95.57.. :ach hei,.;.; a; :h;rp raan,'.:..; ;f;;i.'ir, ;.';. :.;;;; sh.'_.',;

.,..,,,,,,~..-.~m......_m,,.ma..,..nc, n o-o _ _, _ _,

1,

_,t_

,,,-o....,_.,.....,..~,

a

,,, ny,..

.r. a.

(a) Any all.,;d : a;.;pe;;;d ;l:.':.'an of:h; A:.....; Ez.,9 A;;, E.;p:;; g; A.,, : hor

,e.-.........,_.a._...~~..,y....,.,,,~.n

., _.,.......,__,.s.

_t

.P

>. i___

1..

.u

~r

..,. ~.

.y.

u::h:,.

!.; : of:h; ;,;;;:f.'.';^,,;d by a,:::;;; ;;,.',... ;~.; Edchl1IUfdibQthirjeFson cidakbhce)halliejod to'theiNRC OpirattorisjCusfarinithinksh6W6f hhir@ dfacilit i Nscoye5%nyihe.&iBklassiped%fohbxt,loNoY$ty)nci&iQhib&iMstNNskNasl behn aht OntawfuldsciWro%laisifled made;oY is believed"tahaus buriinade yd comrkitithiph' Ne actiokta inprmation. DockrAe@btijn%fthelevenCiriNh$lingcoirEct with. lit 3_0 d_ayi_to t..iiQ.. _te.ist_on..of_F_ dcilities and S._ecu.rity.

m (b) Any other infractions, losses, Q compromises a possibl; ;a.,,.....;; of classifed information or :

';i.'a; ;;.,.:a notfalling withinparagraph (a) ofthis sectice;. l, li;a:;

.,......,,.~.,.,.,...,._,,,.....,_..,......,..-.,,.....,e,.,,,.,o..,..m,.

u m _,____

m,__

,,,u._,

,.,,............a..x.._,,.,,.........,..,,..s.~...,..,.....,.........

.. must belogged-

<.u.

_,x

. _, _. _e-withGQ4 hoiiripfficoyiry.Gai skies iinuitsontaiQaidisiAktion}f thWennt?and

' corr __ective. ;mac.ti.ons_tak.e.r.t._.

/

• P

]

1 1_

_,,1

2__,

i.2_..,_._...,..~y..~.,

(c) m,.. -.2_..

...,.-.L._

_ 1 1, 1 Tn P __

~

~. -..,...

.y...

,~

~,, o n.

- ae

.x...y._,.,....3....,m..~,....a..~,.n.,n.,..,~,..,,....,..,,..,......,.

t u

t_.

... ~.

.....,-r__

L.

.,.L.

__ ~,.,,. _,.

. ~....... -,., _ _ _.,.......1L_a,______,.sn 1,..

_1 - _.,.,,,

y,,,.

1,_,

..,r.=.,

_t

.a n

. _ r.

.........s...,u,

............t,..u, v,r,nr,~,,,,,,,,,,

_ u,,,..,,

..e a,__

~...--,__.__...,t_~. -.. ~,.v,,m.........

~..,,v,

_ _. m _

-m..

N"C Fu.... *':C. Eseif three rWonthsb each licensee shall sibmit to the DNlsibWofFac and Seci&lty copiiY ofall ioglenitries not 'previously bubunitteWCoblesf ofall(written I

documentation requirpd byparts (a[and'(b) shall be maintairiedfor threeyears.

Additionally, the current wording in 95.57(c) should remain unchanged and simply be moved to 10CFR95.37:

.e,_.,___

_,,.y.......,i.~,,..,__

von.

_____11.

6ne c,a 9. 5_.37(?Jj:,,,,,.

_13.n.

~.~...,.,.,m.,-,.,

~..,m

____1

_ _,... t. _. t. _ w J. ~_,_ _ v n_e n., x.r..._.,t.,"._.,,,a._

t1..

3

,__,n...3.L_.,~..,,r..1..

.. ~..,

I l

l

)

1

OCT-02-1998 15:57 USEC 301 564 3210 P.09/09 ODP 98-0204 Page 7 of 7 Sec; 1.y. D;;sc may b;;;.bm ::cian a;; as caiupl..JL:a or cui,3C Ja,+ Dic iiforiua: o;;

,aay bc sid,,,....1ci:hcr cl......::ally by ai; an lli.: r, :cm ClRCpr.f.;; :nc ;.sc ofa 1:al in as.:cma::d:, ::= ca;;,,;;;;i:: :h: Dh..;.c.. afF;;:li:lu -,,J Sc r;;,) ar b,,,...ap, usiiig NRC Form 720. In additibn;an auihidjii.ed?lbHiper ofaficei&eet cetifIdath}i6ldiibR5ths organiialidn subjectiithis fart thbil ' omplete'anRRC Form 190fClassipiutioit'Recohi

c whenever matter cbntainirig class @ed injbrmation ~is gendated,lits cidssipchtibn bhangid br it'is ' eclass@ed.[Nbtipcation ofdiciassipcation is not requiredfor any document or material j

d which has an automatic declassification date. CompletedNRC Form 790 must be submitted td the'NRC Division lbfFaclIliths 'ahdSecurity:bn a monthly basis.'

Finally, it should be noted that USEC is aware that the NRC and the power reactor industry are currently discussing changes to the reporting requirements in Part 50. USEC encourages NMSS to follow these events closely, as USEC will, and consider for incorporation in Parts 95 and 76, those modifications that apply. For example, the industry has commented that reponing events within 30 days, as is currently required, prohibits as complete a repon as the NRC would find useful. That is because typically, root cause analyses done on such events take at least 30 days to complete. Should the NRC find that reporting of events in Part 50 should be relaxed to accommodate for report completeness, USEC would encourage and support a similar relaxation in Parts 95 and 76.

11. " Standard Practice Procedures Plan Standard Format and Content for the Protection of Classifi Matter for NRC Licensees, Certificate Holder, and Related Organizations" In addition, USEC would like to provide comments to the NRC regarding the NRC document

" Standard Practice Procedures Plan Standard Format and Content for the Protection of Classified Matter for NRC Licensees, Certificate Holder, and Related Organizations," December 1997. This document contains guidance for specific sections of 10CFR95 that are the subject of the proposed rulemaking effort, but are not contained in the current rule. By their inclusion in the guidance document, these items may cause licensees or certificate holders to assume they are requirements.

These items include:

A report must be submitted to the NRC Division ofFacilities and Security within 30 days reflecting all actions taken in response to a security container found open. The requirement to submit the report within 30 days is not currently required by 10CFR95.25(i).

Each licensee, cert @cate holder, or otherpersons subject to 10CFR95 must establish an accountabilityprocedure and maintain records to show the disposition ofmatter class @ed as SECRET. Prior to May 1997, this was required by the rule, however, neither the current rule nor the proposed rulemaking effort now require it.

A written report showing corrective actions to be taken to preclude recurrence of infractions or violations should beprovided to the NRC Division ofFacilities andSecurity within 30 days ofthe initial notification to the NRC under 10 CFR 95.57 that an infraction or violation has occurred. 10CFR95 does not currently require a written report.

TnTol D PQ