ML20207F548

Forwards Documents Relevant to Regulatory History of Final Rule Entitled, Conformance to National Policies for Access & Protection of Classified Info, for 10CFR2,10,11,25 & 95

ML20207F548
Person / Time
Issue date:	05/28/1999
From:	Dunleavy J NRC OFFICE OF ADMINISTRATION (ADM)
To:	NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
Shared Package
ML20207F551	List: ML20207F548 ML20207F562 ML20207F569 ML20207F574
References
FRN-64FR15636, RULE-PR-10, RULE-PR-11, RULE-PR-15, RULE-PR-2, RULE-PR-25, RULE-PR-95 AF97-2-001, AF97-2-1, NUDOCS 9906090025
Download: ML20207F548 (2)

Text

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NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 2066tW201

• • • • • May 28, 1999 AF97 2 MEMORANDUM TO: NUDOCS FROM: Jam sNnfea ,

Personnel Security Branch Division of Facilities and Security Office of Administration

SUBJECT:

REGULATORY HISTORY PROCEDURES - CONFORMANCE TO NATIONAL POLICIES FOR ACCESS TO AND PROTECTION OF CLASSIFIED INFORMATION (10 CFR PARTS 2,10,11,25, AND 95)

I in accordance with the April 5,1985 memorandum from the EDO entitled, " Regulatory History Procedures," I am forwarding the documents relevant to the regulatory history of the final rule conforming NRC industrial security requirements to new National Security Executive Orders ]

and Directives (10 CFR Parts 2,10,11,25 and 95 [64 FR 15636]). The documents are identified in and enclosed with the attachment.

Attachment:

As stated 1

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Mr. John C. Hoyle g Secretary of the Commission AD1 p ATTN: Rulemaking and Adjudications Staff DOCKET NUMBEf1 U.S. Nuclear Regulatory Commissiori PROPOSED IRAE $ lo,ll,25+95' Washington, DC 20555-0001 (b3FR4l.10G)

Dear Mr. Hoyle:

f Reference your Proposed Rule "Conformance to National Policies for Access to and Protection of Classified Information," 10 CFR Parts 10, 11, 25, and 95.

During the development of the National Industrial Security Program Operating Manual (NISPOM), it became necessary to resolve dissimilar requirements for the handling of Restricted Data (RD) between the Department For the past of Energy, the Commission , and this Department.

40+ years, the Defense Department has successfully handled and stored RD according to its classification level, protecting SECRET /RD as SECRET national security {

information, i We in DoD grant access to SECRET /RD based on the standards you use for an "L" access authorization, however f we are aware some other structures use the standards for a "Q" access authorization which are far more costly. l

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We have been working to resolve tnese differing requirements since 1995. It's noted DoD has agreed to the reclassification of some of the most sensitive SECRET /RD to However, we have not been able to come to TOP SECRET.

agreement, in all cases, regarding what information is truly the most sensitive, thereby requiring the highest In the interim, it is our view that level of protection.

unnecessarily costly background investigations are l continuing to be run in Energy and the Commission for access to the same information that is accessed based on a l lesser investigation in the Defense Department. In this era of duindling dollars within all of our budgets we can I

ill afford unnecessary and costly security standards which l are not proves to provide substantial protective benefits. l n

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Therefore, the Defense Department fully supports Sections 25.15.and 95.35 of the referenced proposed rule.

Sincerely,

' c'4: J Richard F. Williams, CPP ,

Director of Security l

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ro . sei c o c:sz isse.te-ez 1sias aeer r.czees AF97-2 IL5EC A sostel snwar can,any October 2,1998 ODP 98-0204 The Secretary of the Commission U.S. Nuclear Regulatory Commission Attention: RulamaWg and Adjudications Staff Washington, D.C.20555 0001 Paducah Gaseous Diffusion Plant (PGDP)

Portsmouth Gaseous Diffusion Plant (PORTS)

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

The United States Emichment Corporation (USEC) is pleased to submit the enclosed comments on the NRC's proposed amendment of 10 CFR Parts 10,11,25 and 95, "Conformance to National Policies for Access to and Protection of Classified Infonnation." Comments are also included on sections of 10 CFR Parts 2 and 95 that have not been proposed for revision and on the NRC document " Standard Practice Pmcedures Plan Standard Format and Content ibr the Protection of Classified Mauer for NRC Licensees, Certificate Holder, and Related Organizations," December 1997.

Thank you for the opportunity to provide our input to the Commissloris rulem*We process. We would be pleased to discuns these comments with you. Please contact Ms. Lisa Jarriel at (301) 564-3247. There are no new commitments contained in this submittal Sincerely, zi

5. A. IJ Steven A.Toelle Nuclear Regulatory Assurance and Policy Manager Enclosure 1: USEC Comments on the NRC's proposed amandment of 10 CFR Parts 10,11,25, and 95 cc: Mr. Robert C.Pierson (NRC)

NRC RegionIIIOffice NRC ResidentInspoctor- PGDP NRC ResidentInspector-PORTS Mr. Randall M. DeVault (DOli) 0903 Rxkledge Dm e. Dedusda, MD 20817 1818 Telephone 301564 3203 Fax 3015M.9201 http:/!www.usec.com OfEces in I.in:more. CA hdxah. KY 1%rumouth, OH Wahinpon, DC "fu g>[ 6 / * # Z 4 3 M M/ o ?Q "t$W $

.,. PROW eUSEC, TO 8 301 419 5132 1998.le-e2 1.,23 a v r.es o, Enclosure 1 UDP 98-0204 Page 1 of 7 UNITED STATES ENRICHMENT CORPORATION Comments on NRC's Proposed Amendment of10 CFR Parts 10,11,25 and 95

1. 92.790 Public Inspections, Exemptions, Requests for Withholding ,

While not part of the proposed rnhaMag package, this rulem= Mag would be an opportune time to c!adfy the NRC's intent with respect to public disclosure of security plans for the protection of clammified matter. 10 CFR 2.790(d) now provides for protection of a licensee's physical security plan and material control and accounting program documents. It seems appropriate to protect classi6ed matter protcotion plans frorn public disclosme in the same way as physical security plans and fundamental nuclear material controls plans are protected. Therefore, USEC requests that the rule language in 10CFR2.790(d) be modified as follows:

f2.790(d) ". . .h followirg in)brmation shall be deemed to be commercial orpnancial if,,, ation within the meaningof$9.1'?(a)(4) ofthis chapter andshall be subject to disclosure only in accordance with the provisions of59.19 ofthis chapter.

(1) Correspondence und reports to orfrom the NRC which contain information or records concerning a licensee's or applicant's pigsicalprotection[g,$Q[WMM or material control and accounting program for special nuclear material not otherwise designated us Safeguards 1prmation or classyfed as National Security I$rmation or RestrictedData."

2. 611 Criteria and Procedures for Determin*ng v Fligibility for Access to nr Cnntml Over Special NuclearMaterial It is suggested that this regulation be clari5ed, perhaps in 10CFR11.3, " Scope," that it applies to licensees authoried to possess formula quantities of strategic special nuclear material. 'Ibe applicability of this agulation is currently hidden in the General Requirements of 10CFR11.11.

. Without a very careful reading and understanding of the regulations, licensees who possess special nuclear material oflow sinnegic signiacanoc may mistakenly try to comply with 10CFR Furt 11.

3. 695.5 Definitions As currently described in 10CFR95.5, a cor*minar must have both a " Test Certification Label" and a " General Services Adminletration Approved Security Container" ma*ing to qualify as a "Seewity Caa*alaar". Since either reflects acceptable qualification, one or the other should be adequate and both should not be required. Experience has shown that with time, the test eerdfication labels have fallen off the container and been lost, tesulting in an unnecessary infraction or violation with no security significance. Therefore, USEC requests that the rule language be modioed as fbilows:

f95.5 "Securitycontainerincludesanyofthefollowingrepositaries:

(1) A secwlyf!!ng cabinet one that bwrs a Test Certi)1 cation Lalu Ion the side ofthe lochng

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, .PRott aUSEC TO e 301 413 G132 atSS.10-e2 isa24 8057 F.04/09 Enclosure 1 ODP 98-0204 Page 2 of 7 i

drauer, inside wall adjacent to the locking hav.wr, or interior doorplato r end @ is marked General Services Administration Approved Escurity Container on the exterior of the top drawer or door."

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

4. $95.17 Processing facility clearance 695.17(a)(1) "...The licensee. cert 0icate holder, or other person is required to advise NRC within 30 days of any significant events or changes that may qfect its status concerning foreign ownership, control, or influence."

It is unclear what constitutes a significant event or change atrecung foreign ownership, control, or influence (FOCI). It is our understanding that the NRC is responsible for making FOCI determinations. Therefore, the NRC should establish criteria that licensees and certificate holders .

can use to make the determination of what events / changes should be reported to the NRC. For j example, in 10CFR95.19(b) the NRC has described what " minor, non-substantive changes" include. USEC requests that the rule language in 10CFR95.17 be modified to describe the types of significant cha"Ees that would require NRC notification. as is provided m

• Section 2-302, Factors, of the National Industrial Security Program Operating Manual (NISPOM).

5. g95.19 Changes to Security Pzsctices and Procedures ,

i The language of 10CFR95.19(n) indicates that ats change to the encurity procedures and controls

• would tequire the certificate holder to obtain prior CSA approval. 'Ibe rule, however, only requires prior approval of BihEEuly.g changes. Funber, the language is inconsistent with other parts of the  !

regulations with regard to the definition of" substantive." Part 50.54(p)(1), the process followed by the agency concerning the preparation and maintenance of safeguards contingency plan procedures for Part 50 licensees, describe substantive changes as thota that decrenne the effectiveness of the security plan.  ;

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

l95.19(a) ". . .shall obtainprior CSA qppromsfor anyproposed change to the name, location, IVL%ffahltK%gQWiG@ecurityprocedures and controls, . , . These substantive changes to the StandardPractice Procedures Plan tM: " c: ;k .a , ::, -l:kl .:::.MQ

%%TEi(t_WeiWYM@jtnTdgjeQQ

.,L must be tubnritred to the NRC Divisfon of Facilities and Security, or CSA, aTGast 3 daysprior to the change so that it lGj>fynay be evaluated. . . .

T s' MOM ' s utbEC TO a 301 419 5132 1998,10-02 1Sa25 #067 P".OS/ CS Enclosure 1 GDP 98 0204 Page 3 of 7

6. (95.25 Protection of classified information in storage (a) 10CFR95.2S(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 lat:er inventory serves. Regulations (10CFR95.41) were revised in 1996 to remove inventory requireements for classified documents with the exception of external receipt and dispatch records. Further, inventories may no longer have much meaning since documents, computer disks, and other AW medsa att easily copied with today's technology. Finally,10CFR95.25(i) has reporting language that is unnacamary and should be elimiaM Finding an open security container would constitute an infraction and would, therefore, be reportable under 10CFR95.57. Thereforc, USEC requests that the rule language in 10CFR95.25(i) be modified as follows:

695.25(i) ". . . The container must be secured byprotective personnel and n;; ;; .:.,

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o' Gn"iWh'edeT s soon as

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L i possible. . , A i.,.. ; . ;f :=: ., .dl .r.cnons taken must be submitted to the responsible

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

h is uut clear why locks and keys are useted differently than combinations. Combinations only require change out if evidena of compromise exists. Changing locks every 12 months can be an expensive procedure at a large facility employing several thousand people. Since both devices serve the uma purpme (i.e., physical contmis which deny access to classified matter),

USEC believes they should be treated consistently. 'Iberefore, USEC requests that the rnie language in 10CFR95.250)(7) be mudlIIed as fulluws:

i95.250)(7) ". . . Loch ;,..: M ;'=;:i;; ': l;;;; .r,;;y :: ;;;,, ;;,;, a,;;must be replaced after fars or compromise oftheir npemble kryt;"

7. 695.33 SecudtyEducation l 10CFR95.33(f) provides an example of the type of refresher briefing that would be appmpriate to snest the requirements of this section, namely, the use of" audio / video materials and by issuing written matmials." The example appears to preclude written or audio / video by thmelves, both of which are adequate training tools. Therefore, USEC requests that the rule language in 10CFR95.33(f) be modified as follows:

f 95.33(f) ". . . This requirement may be sarisped by use ofaudioMdeo materials and kfjby issutng wrtuen materlats."

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p PRott a USC To t 301 419 U132 1538e19-e2 lea 23 #267 P.06/09 Enclosure 1 I GDP 98 0204 Page 4 of 7 8.- {95.34 ControlofVisitors 10CFR9.i.34(b)(1) requires that certain mformation concemmg foreign visitors be provided to the i NRC 60 days in advance of the visit. USEC operates a commercial uranium enrichment facility and already implandmts a security program which precludes the dissamination/ exposure of classiflod information to Foreign Nationals. The advance noti 5 cation that the NRC pmposes to require is more than twice as long as other NATO countdes mquire of the United States ed is also in excess of the arnber of days previously required by the Dep-6.;.;; 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 &*=inad to be effective in piccluding foreign nationals imm gaining ecocss to classified information. Scourity plans for all visits by foreign nationals are prepared, mai*iaad. and available for review by the NRC. In this way, the NRC can still track the movement of fonign nationals and analyze po*=*ial threats.

Historically, the advance notice to the govemment entity of a visit to our facilities of a foreign

• national has never resulted in denial of a visit, even when adverse information has been obtained by backgmund checks. Licensees abould 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 requimment to restrict foreign nationals from accessing classl5ed materials.

Advause nodce of much vialw to the NRC serves no purpose for a commercial facility such as the 3 Gaseous Diffbaion 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 taha*h We also note that the NR C has not had a policy on this innue prior to thin pmposed rule and has not demonstrated why such a requirement is now necessary.

Finally, the retention period for maithnanes of records described in 10CFR95.34(b)(2) calls for five years. It does not appear that this change is reisred to the National Indusuial Security Pmgram.

'Therefbre, USEC requests that the rule language in 10CFR95.34(b) be modified a follon:

l95.34(b) ". . . Foreign visitors. Licenrees, certificate holders, or others subject to thispart shall take meatures as may he necessary to preclude access to classtfled irgfiormation by

)breign visitors.

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1. ROW eUSEC TQ s 331 419 5132 1999 10*C2 is#27 Se67 P.e?/CS Enclosure 1 ODP 98-0204 1 Page 5 of 7

9. (95.35 Access to National Security Information and Restricted Data The NRC proposes to change the level of wcurity clearance required for accessing Secret-Restricted Data. The proposed change could save hundreds of thousands of dollars by essentially eRatandag the need for 'Q" clearances at our facilities. However, USEC clearances are maintained by the DOE and we are zuluired to in11nw DOE personnel security regulations per NRC/ DOE agreement. And although the Socretary of Energy signed the National Industrial Security FiGy-u required by Presidential Executive Onles, it should be noted that, DOE's OfTiec of Safeguards and Security does not endorse this concept. This discrepancy between the two agencies may result in complications fbr USEC.

10. i95.57 Rsports 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 submitted which did not rise to the level of significant events conceming classi5ed matter. However, while the proposed mgulations should reduce the number of telephonic reports; it will not decrease the greater administrative burden on the certificate holder created by the aquired writteu reports.

NRC should adopt a reporting system similar to that used by the power teactor industry and required by 10CFR73.71.

Speelfically,10CFR95.57(a) should explain what type of event would require a cue hour report (simb to 10 CFR 73.71(a)(1)). The current and proposed language is too genede and many certificate holders / licensees are not aware of all " Federal Statutes reland to classified inforrnatio 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 intmduces a twn flered approach with security events described in daa>aang order ofimportance with similar importance placed on repw'ag/de-nandag of events to the NRC.

The requirernent for 30 day written reports (follow up) should be etiala='ad for all except one hour reports. Experience has shown that these follow up reports involve extensive review by management and am time intensive. By using the logging process identi6ed 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 report numbers for further myiew if desired.

Also, the NRC should comider a single point of contact for reportable events. The proposed reporting requirements require multiple reports within NRC. Experience has shown that time delays may occur before the proper NRC individual can be loca:ed. This places severe time constraints on a Um> certificate holder who must snake a h _ hion for reporting and notify two separate offices within the NRC of an event, j

~ PROM suSEC TO s 301 419 9132 1E96 10-e2 19:2T E067 P.OS/03 Enclosure 1 GDP 98 0204 Page 6 of 7 USEC believes that the cdteria for submission of NRC Form 790 more -yyig,dately belongs in Section 95.37, " Classification and Preparation of Docummts." This submission ofinformation is similar to identification of Authorized Derivative Classifier lisdngs. No amWav report is listed under the Nadonal Industrial Security Progmm. Additionally, NRC has changed the requirement for = Wen of Form 790 imm monthly to "...as completed basis or every 30 days." Typically, the NRC has used the 30 day time perive f. submlasion of reports or events, not standard document submission. Because USEC files thb form on a regular basis, we prefer to keep the current wording, "...on a 2nonthly basis," to maintain consistent mporting intervals. l l.

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

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I Finally, it should be noted dat USEC is aware that the NRC and the power reactor industry are currently discussing changes to the reporting requiraments in Part 50. USEC encourages NMSS 1 I

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 reportina events l I

within 30 days, as is currently required, prohibits as complete a report as the NRC would find I useibl. That is because typically, room 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 sooom*** for report completeness, USEC would encourage and support a similar relaxation inParts 95 and76.

I1. " Standard Practice Procedures Plan Standard Founat and Content for the Psotection of Clasalfied Matter forNRC Lit ==, Certificate Holder, and Related Or,*=aMons"_

In addition, USEC would like to provide comments to tbn NRC regarding the NRC document

" Standard Practice Proced w Plan Standard Format and Content for the Protection of Classified Matter for NRC Licensees, certificate Holder, und Related Oiganizations," D cW l'7)7. This document contains yM-~ for specific sections of 10CFR95 that are the subject of the proposed rulernaking effort, but are not contained in the current rule. By their inclusion in the guidance document, those items may cause licensees or certificate holdars to annume they are requirements.

Theseitemsinclude:

• A report must be submittedto the NRC Division ofFacilities andSecurity within 30 days refecting all actions taken in response to a security containerfound open. Tbc requiremont to submit the report within 30 days is et 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 i$ actions or violationr should be provided to the NRC Div!sion ofFacilities andSecurity within 30 kne ofthe initial not@aarion to the NRC under 10 CFR 9357 that an l$

or violation has occurred. 10CFR95 does not currently require a written report.

Mll. 1.1999 9:14AM ' DOE NO.6411 P. 2 AF97-2 October 2,1998

' gf L)g }U Secretary of the Commission U.S. Nuclear Ragada*ery Conwiission Washington, DC 20555-0001 Attn

Rulemaking and Adjudications Staff

Dear Secretary:

The Department of Energy, OHice of Safeguards and Scourity, has reviewed your proposed rule to amend 10 CFR Parts 10,11,25, and 95. We have significant concerns that this rule, if amended as stated in your proposal, will compromise some of the nations most sensitive nuclear weapons information. Oui position remains unchanged from nur comment to the previous revision to this regulation.

During the process of developing a single security standard for U.S. industry for the protection of classi5ed information, it wu discovered that significant differences existed bra the Department of Energy and the Department nfDefenen in the protection of Secret Restricted Data.

Therefore, when the National Industrial Security Program Operating Manual (NISPOM)

Supptoment was published in Febmary 1995, Limne was a recognition that a diffbrance in protection requirements existed between the two Departments. The two Departments agree to work toward a solution. We are stillin the process of reconciling these differences. The reconciliation will mann that certain nuclear weapons design information will be upgradod to Top Secret. Neither the NISPOM nor the NISPOM Supplement allow for access to Secret Restricted Data baml on un "L" access authorization.

When information is created there is no distinction within Secret Restricted Data of" critical" or  !

" nuclear weapons design, manufacturing, or vulnerability." Without the identification and l marking of this type ofinformation the implementation of the requirement within NRC would be  ;

impossible. If this requirement were implemented it poses a potential threat to Secret Restricted  !

Data that is this countries most sensitive weapons design information being accessed by "I."

cleared individuals.

l Additionally, since DOB and NRC access authorizations would not provide for the same access to information we would need to purge the clearances from DOB's data base so as not to endanger our Secret Restricted Data. DOE also may decide to no longer reciprocally accept NRC facility

. clearances because of the difference in access authorization requirements.  ;

If you have any questions regarding these comment please call me on 301-903-4805.

1 Sincarely,

/  !

Ca~t Tullis, ssified Matter Protection anti ControlProgram Manager i Of5ce ofSafeguards and Security

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