ML20155C851
| ML20155C851 | |
| Person / Time | |
|---|---|
| Issue date: | 02/13/1998 |
| From: | Halman E NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML20155C839 | List: |
| References | |
| FRN-63FR41206, RULE-PR-10, RULE-PR-11, RULE-PR-25, RULE-PR-95 AF97-1-002, AF97-1-2, NUDOCS 9811030025 | |
| Download: ML20155C851 (11) | |
Text
.- - __ - . . . - -
Ar t 7- /
( PM)
February 13, 1998 !
MEMORANDUM TO: L. Joseph Callan Executive Director for Operations FROM:
Edward L. Halman, Director g g g Office of Administration yLg
SUBJECT:
RECOMMENDATION FOR PROMULGATING RULES: REVISIONS TO l 10 CFR PARTS 10,11,25 AND 95 TO IMPLEMENT NEW NATIONAL !
SECURITY POLICY DIRECTIVES l
l By this memorandum I am recommending that the items summarized below be approved as a combined single rulemaking action. {
- 1. New amendments to 10 CFR Part 95, " Security Facility Approval and Safeguauing of National Security Information and Restricted Data," to update Part 95 provisions to meet national security requirements contained in a soon to be published Safeguarding Directive.
Summarv: Part 5, Section 5.2(c) of Executive Order 12958, " Classified National Security Information," dated April 17,1995, re, quires that:
"The Security Policy Board, established by a Presidential Decision Directive, shall make a recommendation to the President through the Assistant to the President for National Security Affairs with respect to the issuance of a Presidential directive on safeguarding classified information. The Presidential directive shall pertain to the handling, storage, distribution, transmittal, and destruction of and accounting for classified information."
This directive has been staffed through the national security policy process and will be issued for agency implementation in the near future. The effect of the new Safeguarding Directive is that 10 CFR Part 95, will no longer be consistent with current national security policy and directives. Som; examples include removal of the requirement for supplemental security controls when Secret material is stored in GSA.-approved security containers, phasing out of authority to store Secret materialin steellockbar containers, additional specifications for the construction of open storage areas for Secret materials, and a new requirement for Department of Justice coordination for all formal actions, other than reprimand, for unauthorized disclosure of classified information.
901103002S 981028 PDR PR 10 6?cR41206 PDR cff//G$O0e?T
L. J. Callan February 13. 1998 2.
New amendments to 10 CFR Part 11, " Criteria and Procedures for Determining
' Eligibility for Access to or Control Over Special Nuclear Material," and 10 CFR Part 25, i
" Access Authorization for Licensee Personnel," to incorporate new investigative standards.
Summarv: As the EDO, you approved the common set of investigative standards to serve as the basis for granting and continuing NRC "U" and "R" Special Nuclear Material access authorizations under 10 CFR Part 11 as well as "Q" and "L" access authorizations under 10 CFR Part 25. Therefore, Parts 11 and 25 need to be revised to clarify the new scope of background investigations required for NRC "U", "R", "Q" and "L", and the frequency of reinvestigation.
- 3. A previously approved regulatory initiative to amend,10 CFR Part 10. " Criteria and Procedures for Determining Eligibility for Access to Restricted Data or National Security Information or an Employment Clearance," to update personnel security due process procedures.
Summarv: The regulatory initiative for 10 CFR Part 10 was approved for development on May 1,1995, but has been held in abeyance awaiting formalissuance of Adjudication Guidelines required by Executive Order 12968, " Classified National Security information.' These guidelines were expected to be issued as a final OPM rule for govemment-wide implementation, but now are planned to be issued as a proposed rule for public comment, which will significantly delay their status as formal guidance. While this portion of the initiative must continue to be held in abeyance, other amendments which update and amend the personnel screeoing due process procedures should proceed. '
- 4. A previously approved regulatory nitiative to amend 10 CFR Parts 25 and 95 to meet the requirements of the National Industrial Security Program Operating Manual (NISPOM).
Summarv: DOE took exception to NRC's previous proposed rule to conform Parts 25
' and 95 to the NISPOM. The amendments would have allowed access to Secret
' Restricted Data with an NRC 'L' security clearance. DOE maintained that a "Q' security clearance should continue tu be required for such access. Simply adopting DOE's position would have conflicted with the NISPOM and would have subjected licensees / certificate holders to additional expenses. Given DOE's statutory responsibilities fo,r the protection of Restricted Data, NRC chose to further evaluate the comments. DOE has since taken some action that may alleviate any conflict and will have an opportunity to comment again on NRC's proposed rulemaking being developed under this initiative.
The above initiatives, if handled separately, would require processing multiple concurrent, separate rulemaking activities. I recommend that the new rulemaking items (1 and 2) requested in this memorandum be combined with the previously approved regulatory initiatives (3 and 4) to permit a single initiative for 10 CFR Parts 10,11,25, and 95 to conform them to new national security policies. Further, I recommend that this action be a proposed rulemaking published for a 60-day public comment period in accordance with the February 13,1984, memorandum," Control of NRC Rulemakings by Offices Reporting to the EDO," appropriate
,e -
w - - - - .n,- ---w- w- , ,,-, - , , --- m -e. . -,
~
[ __u L. J. Callan February 13, 1998 materials to support this recommendation are attached. When the Adjudicative Guidelines mentioned in item 3 are issued, we will prepare a separate rulemaking action, under the approval of this regulatory initiative, to incorporate them into 10 CFR Part 10.
i Attachments:
3
- 1. Regulatory Agenda Entries 4
- 2. Results of Preliminary Office '
Review of Rulemakings 1
- 3. Preliminary Regulatory l
Analysis '
APPROVED:
% U12l 8 %y:2.ti by laJ.C2MaE 2/ /.3 /98 L. Joseph Callan Executive Director for Operations j DISTRIBUTION: E. M. Pleasant, ADM SCF: LRD 3.00.03 R. L. Spessard, NRR LRD 3.00.05 E. Q. Ten-Eyck, NMSS, .
LRD 3.00.09 J. J. Dunlea.vy, PERSEC LRD 3.00.17 L. Fisher, FACB D/DFS R/F A. L. Silvious,INFOSEC 4 P. G. Norry, DEDM B. J. Shelton, OClO E. L. Italman, ADM D. L. Meyer, RRDB F. A. Costanzi, RES D. F. Hassell, OGC V. H. Wilson, EDO DEDM R/F .
ADM R/F DOCUMENT NAME: CFRREV97.wpd
- attached memo ", Telephonic *" attached e-mail (cInct.s the "c" to receive e copy of this docueent Without enclosures; CIRCLE the "E" tA receive a copy With enclosures)
OFFICE DFS CE D/DFS CE RRDB* CE D/MMJ CE 0C10* CE NAME DGKidd* RJBrady* DLMeyer ELRilman~ BJShelton DATE 12/18/97 12/18/97 12/15/97 lL#797 12/17/97
; = = 1 :
NAME RSWarren BMMorris DFHassell JWRoe PGNorrf DATE 11/24/97 11/13/97 11/18/97 11/24/97 2.///97 OFFICIAL RECORD COPY
. - . _ . ~ _ _ - - - - , _ . _ .
I in (dition to the revisions proposed by this memorandum, the Office of Administration curt ly has two previously approved regulatory initiatives in process. These are " Criteria and Proce ' es for Determining Eligibility for Access to Restricted Data or National Security l Informati or an Employment Clearance (Part 10) " which was approved for development on May 1,199 ' and " Access to Secret Restricted Data," which was approved for development on March 26,19 The rulemaking initiative, " Criteria and Procedures for Determining Eligibility for Access to Re ricted Data or National Security Information or an Employment Clearance (Part 10)," has bee held in abeyance awaiting formal issuance of Adjudication Guidelines required by Executiv Order 12968. These guidelines were expected to be issued as a final l OPM rule for govemm t-wide implementation, but now are planned to be issued as a
! proposed rule for public mment, which will significantly delay their status as formal guidance, l
The " Access to Secret Res 'cted Data," rulemaking initiative, which was approved on March 26,1997, involves changes t 10 CFR Parts 25 and 95.
i
' The above two initiatives, if handle separately, would require the Office of Administration to process three concurrent, separate emaking activities. Additionally, it would mean that needed changes to 10 CFR Part 10, n related to the adjudicatory guidelines, such as the due process provisions of E.O.12968 and th mmon investigative standards for initial and reinvestigation background investigations, uld be delayed while the NRC waited for the guide:ines to become final. I recommend tha he above initiatives be integrated with the rulemaking requested in this memorandum to mit a single initiative for 10 CFR Parts 10,11, 25, and 95 to conform them to the new national s urity policies and that, when the adjudicative guidelines are issued, we will prepare a separate ru aking action, under the approval of this regulatory initiative, to incorporate them into 10 CFR.
- Accordingly, I recommend that the current regulations,10 R Parts 10,11,25 and 95, be i
amended to reflect current national security policy. Further, ecommend that this action be a i
proposed rulemaking published for a 60 day public comment 'od. -
Attachments:
- 1. Regulatory Agenda Entries
- 2. Results of Preliminary Office Review of Rulemakings -
- 3. Preliminary Regulatory Analysis s
Document Name: CFRREV97 (CIRC 2.5 the "C" to receive a copy of this docunent Without enclosures; CIRCLE the "E" to receive a copy with enclosures)
OFFICE DFS gyl CE D/DFS g CE RRDB* CE D/ADM CE fftM
- oc t o lC E NAME DGKidd % dBrady DLMeyer ELHalman BJShelton DATE f/ /97 1
'V Q /97 12/15/97 / /97 12/17/97 unusammeuma OFFICE NMSS**
==uss e CE eessab- - '--
RES*** CE OGC*** CE NRR* CE DEDM CE NAMS RSWarren BMMorris DFHassell JWRoe PGNorry DATE 11/24/97 11/13/97 11/18/97 11/24/97 / /97 OFFICIAL RECORD COPY o attached memo
- o Telephonic m attached email
p _ .. _ _ _ _ _ _ _ _ . _ _ _ _ .. _ _ _ _ .___ _ __- . _ _ _. _ ._
J .
l [
- 2- '
! l in addition to the revisions proposed by this memorandum, the Office of Administration 1
currently has two previously approved regulator / nitiatives i in process. The_se are " Criteria l and Procedures for Determining Eligibility for Access to Restricted Data or National Security information or an Employment Clearance (Part 10)," which was approved for development on May 1,1995, and " Access to Secret Restricted Data," which was approvea for development on March 26,1997. The rulemaking initiative, " Criteria and Proce tires for Determining
{ Eligibility for Access to Restricted Data or National Security info ation or an Employment i Clearance (Part 10)," has been held in abeyance awaiting fo Iissuance of Adjudication l Guidelines required by Executive Order 12968. These guide ~ es were expected to be issued as a final OPM rule for govemment-wide implementation, t now are planned to be issued
! as a proposed rule for public comment, which will signifi ntly delay their status as formal j guidance. The " Access to Secret Restricted Data," rul aking initiative, which was approved on March 26,1997, involves changes to 10 CFR Part 25 i and 95.
The above two initiatives, if handied separately, ould require the Office of Administration to j process three concurrent, separate rulemaking ctivities. Additionally, it would mean that i
' needed changes to 10 CFR Part 10, not relat to the adjudicatory guidelines, such as the due process provisions of E.O.12968 and t common investigative standards for initial and i !
reinvestigation background investigations, ould be delayed while NRC waited for the l
- guidelines to become a final rule. I reco end that the 'above initiatives be integrated with '
i the rulemaking requested in this memor ndum permitting a single initiative for 10 CFR Parts j
10,11,25 and 95 to conform them to e new national security policies and that,and that,
)
when the adjudicative guidelines are osued, we will prepare a separate rulemaking action,
- under the approval of this regulato initiative, to incorporate them into 10 CFR.
i Accordingly, I recommend that t current regulations,10 CFR Parts 10,11,25 and 95, be amended to reflect current nati nal security policy. Further, I recommend that this action be a proposed rulemaking pub;is ed for a 60 day public comment period..
Attachments:
- 1. Regulatory Agenda tries
- 2. Results of Prelimin Office Review of Rulemakings
- 3. Preliminary Re latory Analysis Document Na e: CFRREV97 (CIRCLE the *C" to receiv a c0Dy of this document without enclosures: CIRCLE the "E" to receive a copy with enclosures)
OFFICE DFS #9(/ l CE p/pFL,D lCE RRDB lC E D/ADM lCE IRM lC E NAME DGKidd / 1PBridy DLMeyer ELHalman BJShe1 ton DATE /l / t/ /@7 )A/ 6/97 /97
/ / /97 / /97 OFFICE NMSS CE RES CE OGC CE NRR CE DEDM CE NAME EQTen-Eyck BMMorris DFHassell RLSpessard PGNorry DATE / /97 / /97 / /97 / /97 / /97 OFFICIAL RECORD COPY
~
O j
I Attachmenti REGULATORY AGENDA ENTRY 4
TITLE:
Protection of and Access to Classified Information by Licensee, Certificate Holder and other Personnel or Facilities
- CFR CITATION:
10 CFR Pads 10,11,25 and 95 ABSTRACT:
The proposed rule would amend the Commission's regulations by conforming NRC policy for access to and protection of classified information to new national policies for the protection of, and access to, such information. The existing 10 CFR Parts 10,11, and 25 (including the April 11,1997 amendments to Part 25), were promulgated before issuance of the common set of investigative standards for initial background investigations and reinvestigations formulated by the Security Policy Board and issued by the National Security Advisor to the President. The existing 10 CFR Part 11 would be revised to conform the investigative requirements for access to or control over special nuclear material to the requirements for access to classified information to ensure compatibility and uniformity. The existing 10 CFR Part 95 and the April 11, 1997, amendments thereto, were promulgated before issuance of the forthcoming Presidential" Directive on Safeguarding Classified National Security information." This directive, required by Section 5.2 (c) of Executive Order 12958, " Classified National
! Security Information,"is expected to be approved by the Security Policy Board and submitted to the National Security Advisor to the President. The current version has been coordinated with, and concurred in, by all agencies and is expected to be issued in its current form.
The current 10 CFR Parts 10,11, and 25 are not fully compliant with the requirements of the common investigative standards for initial background investigations and reinvestigations issued by the National Security Advisor to the President; and the current 10 CFR Part 95 is not fully compliant with the requirements of the forthcoming safeguarding directive. Some examples for Parts 10,11 and 25 include: revision of the eligibility criteria and due process procedures of Part 10 to reflect recently issued national standards; clarification of the scopes of background investigations required for j "U,""R," "O," and "L" access authorizations under Pa:ts 11 and 25, respectively; and i lengthening the interval of "R" and "L" reinvestigations under Parts 11 and 25 from five to ten years. Some examples for Part 95 include, removal of the requirement for supplemental security controls when Secret material is stored in GSA-approved security containers, phasing out of authority to store Secret material in steel lockbar containers,
! additional specifications for the construction of open storage areas for Secret materials, and a new requirement for Department of Justice coordination for all formal actions, other than reprimand, for unauthorized disclosure of classified information. Therefore, it 4 is necessary to revise these regulations to ensure their consistency with established national policy for the protection of classified information.
\ .
1 l
(
2 l
l l TIMETABLE:
Proposed Action for Division Review: February 28,1998.
Office Concurrence on Proposed Action Completed: April 30,1998.
Proposed Action to EDO: May 29,1998.
l Proposed Action Published: July 30,1998.
- l. LEGAL AUTHORITY:
l 42 U.S.C. 2165; 42 U.S.C. 2201; 42 U.S.C. 2273; 42 U.S.C. 5841; E. O.12958; E. O.
12968.
EFFECTS ON SMALL BUSINESS AND OTHER ENTITIES: None AGENCY CONTACT:
Duane G. Kidd Nuclear Regulatory Commission Office of Administration Washington, DC 20555 .
(301) 415-7403
$ e i
l l
i l
O Attachment 2 Results of Preliminary Office Review of Rulemaking Entitled " Protection of and Access to Classified information for Licensee, Certificate Holder and other Personnel or Facilities" Issue to be Addressed The Office of Administration (ADM) seeks approval to amend 10 CFR Part 10, " Criteria and Procedures for Determining Eligibility for Access to Restricted Data or National Security information or an Employment Clearance," 10 CFR Part 11. " Criteria and Procedures for Determining Eligibility for Access to or Control Over Special Nuclear Material," 10 CFR Part 25,
" Access Authorization for Licensee Personnel," and 10 CFR Part 95, " Security Facility Approval and Safeguarding of National Security Information and Restricted Data," to conform to the requirements of new national security policies. Specifically, amendments are necessary for compliance with the common investigative standards for initial background investigations and reinvestigations issued by the National Security Advisor to the President; and the forthcoming Presidential Safeguarding Directive, " Directive on Safeguarding Classified National Security information." ADM proposes to issue these amendments as a proposed rulemaking for 60 days public comment.
Need for Addressina the issue l The NRC is obligated to conform its rules for protecting classified National Security Information l
and Restricted Data to new national policies for the protection of and access to such information imposed as a result of new national security policy documents such as the Presidential Directive. Although the directive has not yet been formally issued, it has been reviewed and concurred in by all necessary agencies and is in the final process of being forwarded to the National Security Advisor to the President by the Secretary ~of Defense and the Director of Central Intelligence. There is good reason to believe it will be formally issued, in its current form, before the proposed rule is circulated for agency comment. Based on the EDO decision to require the same investigative standards for "U" and "R" access as for "Q" and "L" access, it is also necessary to revise our regulations for access to Special Nuclear Material,10 CFR Part 11, to conform to the common investigative standards for initial background investigations and reinvestigations issued by the National Security Advisor to the President.
l Altematives to Rulemaking -
ADM sees no altemative to amending these regulations that would be more effective and use fewer NRC resources.
How issues will be Addressed by Rulemakina The final rule would amend 10 CFR Parts 10,11,25, and 95 to conform to new national policies.
How the Public. Industry and NRC will be Affected A negligible effect is predicted for the general public because this ru!emaking activity applies only to those licensees, certificate holders, and others who need to generate, receive, safeguard, and store National Security Information or Restricted Data (as defined in 10 CFR Parts 25 and 95) or who possess Special Nuclear Material as defined in 10 CFR Part 11.
l l
\
2 Approximately 20 NRC licensees and other interests will be affected. In most cases, the effect i will consir' Iminor revisions to Facility Security Plans to conform to new or revised requiremt . 3 for access to classified information or Special Nuclear Material or protection of l classified information. Individuals who have already been cleared for access to classified l information will be required to complete and submit written consent to permit access by an i
t authorized investigative agency to their financial and foreign travel records. ADM views these amendments as a necessity.
l i
I O
Attachment 3 PRELIMINARY REGULATORY ANALYSIS
- 1. Statement of Problem l
l On April 28,1997, the Presidential Safeguarding Directive was sent to the members of the Security Policy Board for final approval before submission to the National Security -
Advisor to the President. The approval process has been completed. The Safeguarding Directive is in the process of being signed by the Secretary of Defense and the Director of Central Intelligence for transmittal to the National Security Advisor for signature and promulgation. Official issuance, in its current form is anticipated before the proposed regulation would be issued. Additionally, the President's National Security Advisor has issued the common investigative standards for initial background investigations and reinvestigations, which the EDO has approved for use in determining eligibility for access to Special Nuclear Material. The NRC regulations,10 CFR Parts 10,11,25 and 95, which apply to licensees and their contractors (Part 95 also applies to certificate holders), were promulgated prior to these new national policies and are not fully consistent with them. Therefore, it is necessary for NRC to bring its regulations into conformance with current national policy.
- 2. Obiective The objective of this regulatory initiative is to bring NRC regulations into conformance with national policy.
- 3. Altematives There is no reasonable altemative to the revision of these regulations that would achieve the desired result.
- 4. Conseouences There are approximately 20 affected entities licensed or issued certificates by the NRC.
In most cases, there will be minor revisions to Facility Security Plans required to i conform to new or revised requirements for access to classified information or Special 4
Nuclear Material or protection of classified information. Individuals who have already been cleared for access to classified information or Special Nuclear Material will be not be required to prepare additional or revised paperwork except perhaps at the time of a regularly scheduled reinvestigation.
- 5. Decision Rationale The only available method of imposing these requirements is to revise 10 CFR Parts 10, 11,25, and 95. Other avenues would lack the requisite formality and legality necessary to require all affected NRC licensees and certificate holders to comply with revised national security policies, i
- ~... ._ ..- .. . . . _ _ . . . _ . _ . - _ . . . . - . . . _ . , . .. . -..._. . - -_ - . . _ . . ._.-__ ..__._ . _. .
l 2
- 6. Imolementation l
1
\
The Division of Facilities and Security intends to publish the proposed rule amending 10 l CFR Parts 10,11, 25, and 95 by June 25,1998.
s
. l d
i I 1
. . 1 4
9 d
d
_4 _ . - . _ . , , , , ,