ML22230A161
| ML22230A161 | |
| Person / Time | |
|---|---|
| Issue date: | 05/04/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780504 | |
| Download: ML22230A161 (1) | |
Text
RETUR. J TO "ECRETARIAT RECORDS NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING DISCUSSION OF SECY-78-219 -
EXPORT-IMPORT REGULATIONS PART 110 Place -
Washington, D. C.
Date -
Thursday, 4 Mav 197 8 Pages 1 -
27 ACE. FEDERAL REPORTERS, INC.
Official Reporters 444 North C::ipitol Street Washington, D.C. 2000 l NATlONWIDE COVERAGE* DAil Y Telephone:
(202 ) 3"17-3700
(
DISCLAIMER This is an unofficial transcript of a mee~1ng of the United States Nuclear Regulatory Commission held on May 4, 1978 in the Commission's offices at 1717 H Street, N. W., Washington, D. C.
The meeting was open to pub 1 i c attendance and observation.
- This transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the fonnal or infernal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed to any statement or ai*g:Enent contained herein, except as the Commission may authorize~
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25 UNITED STATES OF AMERICA NUCLEAR-REGULATORY COMMISSION PUBLIC MEETING DISCUSSION OF SECY-78-219 -
EXPORT-IMPORT REGULATIONS PART 110 Room 1130 1717 H Street, N. W.
Washington, D. C.
.Thursday, 4 May 1978 The Commission met, pursuant to notice, at 3:40 p.m.
BEFORE:
DR. JOSEPH M. HENDRIE, Chairman PETER A. BRADFORD, Commissioner RICHARDT. KENNEDY, Commissioner PRESENT:
SAMUEL CHILK, Secretary J. KELLEY, Acting Legal Counsel C. STOIBER J. DEVINE L. GOSSICK 1
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P R O C E E D I N G S (3:40 p.m.).
CHAIRMAN HENDRIE:
The next item on the agenda is the export-import regulations, part 1-10.
Next we have the Next we have the export-import regulation,,part 1-10, which would reflect the provisions of the recently enacted Nuclear Nonproliferation Act of 1978.
I think that aside from what may be really minor editorial -matters, that the only significant points at issue here have to do with the physical security standards, and there is a division in the staff recommendations between NMSS.
We want to enumerate a requirement for breadth analysis and also a number of a so-called essential elements in the security pro-gram, and the rest of the staff think it is better dealt with by the IAEA publication insert 225.
I thihk everything else is fairly well agreed to down the line, a t least as far as I know.
Now, I will attempt to bring the Commission to a settlement of this matter this afternoon.
I will see.
A few minutes' worth of discussion down the line. *In particular, I don't think we are going to spend an hour on it, and if we hold it over, we will hold it over until 1:30 Monday afternoon, and if we do, we will have to hold a short notice meeting for then.
That would have the advantage that Commissioner Gilinsky will be back in town and will be able to look at the
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I've gone ahead and scheduled.meetings this week, 3
having talked with Commissioner Gilinsky before he left, and I 4
know what his point of view was, at least as of that time.
Of 5
course, if he were here and participated in the discussion, it 6
might very well change his mind, as all of us are certainly 7
privileged to do.
8 Let me start off and ask the staff to speak, to make 9
a summary, on one side or the other for these alternatives, 10 asking you to make the central points and not run on at great 11 length.
And we will see, with some Commission discussion, where we stand and where we might go.
I 12 13 14 15 16 MR. SHEA:
I might just briefly introduce the presen 1
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tation, Mr. Chairman.
I would like to ask Mike Guhin to present the factor inovolved in AWIP and some other offices favorable to it, and Jerry Page will then present on behalf of NMSS the factors.
I might note that barring an extraordinary meeting of the Commission tomorrow, probably this is Mike Guhin's last appearance before the Commission.
CHAIRMAN HENDRIE:
I was going to say, you are working him right up to the end.
MR. SHEA:
We're getting a hard day's work out of him.
And.in this particular room it is appropriate since he 25 was one of the founding fathers of it back in 1976.
And one
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of his first tasks was to work overtime to produce the original rule which bec*ame effective ~1
- d:ncidentally, yesterday.
CHAIRMAN HENDRIE:
It has been effective a whole 24 ho~rsr, anq we haven~t amended it yet?
Well, let's get on with the discussion.
.MR. GUHIN:
As you accurately summarized, I think it is important to note for the benefit of all here that there are several essential points even in the physical security section on which all of the staff agree regarding cbuntry visits and the use of insert 225, at least the reference form, and that the disagreements really only focus on whether or not we delin-eate certain standards from insert 225 in the regulations, certain essential ones, and whether or not we delineate a requirement for threat assessment.
I think those, essentially, are the only two differences.between the alternatives.
Before.going into the orie with you, I would like to explain, Mr. Chairman, if I could, that we have had a situation where the chart which went along with the physical security Appendix C, which is lab.eled, we discovered this morning does have some of the lower-limit figures wrong, and that is really an editorial change.
And the staff does have copies which they can circulate.
But in review of it, it was discovered that those should be changed to conform to what the lower limits that are
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5 internationally agreed upon should be in there.
And there are some other minor editorial changes in that chart.
Essentially, with respect to the question of whether or not _the Commission should delineate certain specific *measures 5
referred to in 225 in the rule, IP and some other offices have 6
taken the view that the problem: with this is that we' re dealing 7
with a situation where one cannot say that at this stag.e,. at 8
any rate, that these are really all that one needs in each and 9
every circumstance, and consequently, by building in these, 10 however, we may leave the impression that these are really the 11 only essential elements you need of a program whereby our goal 12 of_course, the goal in other countries, as is our goal here, 13 14 is to have an overall program providing for these measures and, of course, a framework for them and a system for them and other 15 measures where they may *be warranted or required.
16 So I think that the problem that arises here is one 17 of saying that if by enshrining these particular measures 18 and, indeed, these are essential measures -- and with due 19 credit to the study group, I would like to say that I think the 20 measures in here are fairly defined, because there was a lot 21 of work by both sides, all offices in this, in designing the 22 set of measures that would go into this alternative 2.
23 However, by enshrining them in the regulat~ons, I 24 think we do leave the impression that this is, indeed, the one Ace-Federal Reporters, Inc.
25 and only set that anyone need have, and if that is not our
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conviction, if that is the Commission's conviction, then I think one could say, well, that is indeed a bottom line, which would not hurt.
However, I think the practicallity shows us in the past in our reviews and in NMSS's reviews that this is not the case.
And consequently, I think, to enshrine these when it does not build in certainty, and when we wish to go back for more information with other countries or discussions or encourage.them in particular ways, I think it would be mis-leading and would not build in a real predictability or cer-tainty at all into the licensing framework.
COMMISSIONER BRADFORD:
Let me understand what you are saying.
Are you saying that these points are not a uniform bottom line, that in fact in some cases we don't now require at least these items?
MR. GUHIN:
I think in all that I've seen, essentially, they have required these as a bottom line.
I would not want to propose, however, that there are other ways that people can meet this.
For example, if the corrrrnission were to decide to go along, I think it would be very important to have something in or their equivalent, because I think countries, in devising their security programs, can come up with something which could be the equivalent without having all of these elements.
To return to your question --
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COMMISSIONER BRADFORD:
Isn't that in the statute now?
.MR. GUHIN:
No, it is not.
It is not in the rule now.
COMMISSIONER BRADFORD:
Not the rule, but the statute~
$.~ GUHIN; It is in the rule for the criteria themselves.
It's not in the rule for the.standards which NMSS
-- which is to *incorporate in the physical security section.
COMMISSIONER BRADFORD:
Sure, but to meet the criteria in the statute, you have to meet the equivalent of the regulation.
MR. GUHIN:
I guess one could say that.
But it's as you meet the criteria or their equivalent.
But if we define in the rules what meeting the criteria means, then I think you b.ave to meet those and not the equivalent, unless there were a bottom line which said "these standards or their equivalent."
COMMISSIONER BRADFORD:
Well,'the statute itself says, '!Physical security measures should be deemed adequate if such measures provide a level of protection equivalent to that
-r.eqpi1;ed by the applicable regulation. "
C~AI'RMA,N HENDRIE:
Well, once we write a regulation 1-7 you can either do it that way or you can for court test with the<Tegulation.
You've got that freedom, don't you?
COMMISSIONER BRADFORD:
If the statute says
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"equivalent to the regulation," I agree that if the regulation says these things, where they a.re equivalent, but the statute itself seems to say that, as it is, you don't have to meet the regulations; you just have to meet its equivalent.
CHAIRMAN HENDRIE:
Are you going to issue a license if the regulation is not met?
Is there any chance that you would issue a license?
MR. PAGE:
The wording we have in here does not make it ro.andatory.
It says it should be included.
It is not a requirement.
These are essential elements.
COMMISSIONER KENNEDY:
If it says it should be, I assUI'(le that's mandatory.
MR. PAGE:
Well, exceptions can be made to the
,rµles.
There an exception provision in all rules.
Anyone can apply for an alternate measure.
CHAIRMAN HENDRIE:
But that is not the question before the House.
Peter is saying, look, the statute says you can either follow the regulations or do the equivalent.
What I'm
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saying is that since they've got to get a license from NRC, if we make regulations, you just aren't going to get a license from NRC by coming in and saying, never mind your regulations; I'm doing the equivalent.
You are going to have to abey the regulatio'ns within the framework of those regulations.
MR. PAGE:
That's true, Mr. Chairman, but in the
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other regulations, at least, there's a provision that the Commission can grant exceptions to specific provisions of the rule.
The wording in here that we have is not the mandatory language, does not say that these programs shall include these
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It is that they should include these elements.
In fact,. in reviewing the adequacy of foreign physical security programs thus far these elements have been included in all programs which we have approved.
I agree with Mike, there is possibly a program that could be devised where two of these elements might be okay not to include.
If you had armed guards around a flat perimeter of fence, we would accept that, but it is rather unlikely that that would be proposed.
MR. GURIN:
I agree with that.
And the basic question you asked was somewhat different, if I am correct, or it had another aspect to*it, and that is, have the ones to date reviewed included this.
And I think the answer to that, as Jerry said, is yes.
But that hasn't been where the issues have arisen.
The issues have* arisen over how one defines these, over what kind of alarms,- for example, without getting into classified information.
Sq it goes far, far beyond this in terms of NMSS's review of the physical security program, and it can go into other things which are in 225, as well as these essential elements which are in 225.
And I think, in view of that, our
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25 10 view has been that this really doesn't give an accurate picture of where we are or how we are working with this problem, or at least not an accurate -- it isn't even totally accurate to other countries.
And I think that this definitely, as I come *_
back to my bottom line, at any rate, I think that if one says that these are the elements and leaves them at that --. and I think one has a case for saying, at least in one way -- and I'm not sure the rules themselves should say these should be included.
That's a funny-way, in my own mind, for a rule to state something.
Either something is included as part of its review or it's not included.
_MR. SHEA:
As it is now, it says, "should include the essential elements."
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11 COMMISSIONER KENNEDY:
In any event, for my 2 clarification, if we're going to use these "should" and "shall" 3 in these nuance ways, I would appreciate a glossary so we 4 know how we are using them because I would certainly interpret 5 it, if it says.in the regulation that these criteria should 6 be met -- I can't imagine somebody saying, well, I will figure 7 out some other way.
8 MR. KELLEY:
If I could just offer a comment which, 9 frankly, is off my head.
But I think Commissioner Bradford, 10 reading -- I could make some sense out of that.
Congress can 11 pass a statute and the idea is we don't want some agency 12 insisting on every crossed "T" and dotted "I."
And we will 13 give them regulation power, but we will also say that they 14 are obliged to consider an application or where an applicant 15 says, I haven't got exactly what you've got, but it is just 16 as. good.
And as a practical matter, applicants tend not to 17 buck the tide.
When you say six guards, they will hire six, 18 but as a legal matter, they could come in and say, I've got 19 five guards and an extra gun, and that's just as good.
20 CHAIRMAN HENDRIE:
With that Congressional intent 21 perceived, either directly from the statute or the legislative 22 history, wouldn't we then write a rule which says, now here's 23 what you do, Items 1 through 22, except if you've *got alternate 24 ways, we're willing to look at them.
Ace-Federal Reporters, Inc.
25 MR. KELLEY:
I think so.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 12 CHAIRMAN HENDRIE:
And then the staff operates within the rules of the Commission.
And that's all I was trying to say.
When you make a rule, then the Commission staff is expected to operate in it and not to go beyond it and say, well, I've also read the statute and it gives me more flexibilit than our own Commission's rule.
I could always go into court, an applicant could always go into court and say, look;. right here in the statute it says it.
MR. GUHIN:
I think another important distinction here in terms of the rule, and maybe it's only largely cosmetic, but as we've always kept in mind when dealing with expert matters is that we are not dealing with the domestic output, but we're really working with other countries -- is the whole physical security review system that's been set up and the visit requirements and this king of thing, is in cooperation with them and it has been very productive.
And I think all offices will attest in terms of helping others to develop better programs and improve them.
But, again, I think, putting it in the rule, that in this way we have to keep in mind that if we are talking about one thing, how we conduct our own review, which came out, by the way, in the initial meetings of the study group -- it was Ace-Federal Reporters, Inc. questioned when the initial drafts and alternatives came out 25 as to why is this kind of detail in here rather than other
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25 13 details?
And partial reasons, at any rate, well, is this really what the staff focuses on, although it is not entirely what the staff focuses on, et cetera, and also, it might help provide staff guidance.
Well, the confusion of IP, at any rate, was that there are other mechanisms for the Commission*in this review and not the rule itself a partial listing.
by this, what is, I think, only And as we will get into the thread discussion subsequently, but this is really, I don't think can really be complete unless by a political decision that the Commission made a decision that it is complete.
And if they did that, I think that there would be a strong case.
CHAIRMAN HENDRIE:
Can I ask a couple of questions here?
The list of items here is that reflected in the 225 page, they are taken almost directly frorri 225.
I have a handout I can give you to show you the wording.
The wording has been slightly changed but every element is in there.
225 contains many, many, many measures, upwards to 100 measures.
If we just tie it to a comparability statement on 225, people will not know which of those things we consider important and which ones we don't.
The ones we've got listed are the ones we feel are important and under our present review criteria, we do measure
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25 acceptability against them and we do not use other measures to judge against. As Mike has inferred, we have been making the reviews rather than IP.
These are, in fact, what we are using.
14 CHAIRMAN HENDRIE:
These are the only ones, you say'?
MR. PAGE:
These are the only ones that we would require be met, or that a program element be described which prescribes equivalent protections.
But each of the~e cover a different matter and we feel that they are all very important.
It is feasible that someone could propose some measure differently than these which we might accept, but as a practical matter, they have not.
CHAIRMAN HENDRIE:
Do you expect these are going to continue to be the exclusive list'?
MR. PAGE:
This.would be the exclusive list of minimum requirements.
But as we have proposed elsewhere, which Mike has not gotten to yet, we believe that it is importan for the Commission to consider risks in particular countries and we need to consider the threats there and where the threat in a particular country seems to be high, then we would want to supplement that protection with additional measures.
But these are the minimum measures that we would accept in a country.
CHAIRMAN HENDRIE:
What about the other provisions
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MR. PAGE:
Most of these are quite specific.
For example, they give requirements for badging of people. It is rather explicit under what conditions badges should be provided.
There are specific statements about not allowing vehicles within a protected area.
In other words, some of the access controls are spoke to very, very explicitly.
We believe that country measures can vary and we do not believe that it is appropriate to require that every measure and information in Circular 225 could be met.
We are only concerned with comparability.
But these elements that we have listed, we believe are needed to be met.
And if you have read them, they are quite liberal.
For example, we have not required, for example, that an armed security force be on site.
We have simply stated that an armed security force shall be provided, unless there is an off site security force that can arrive in sufficient time to prevent the theft of material.
So these criteria cannot be directly compared against our Part 73.
We can do the kind of reviews that we expect to do for the alternate one language.
We simply felt that this Ace-Federal Reporters, Inc. language was more responsive to the Act and would provide better 25 guidance to countries as to what we would be looking at.
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Would you be better off with this kind of guidance if it were in there?
MR. PAGE:
It could be in there, sure.
CHAIR!-:1A.N HENDRIE:
Rather than embedding in the regulations the citing of 225 comparability requirements gives 6 you the base in the Code of Federal Regulations to do what you 7
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But as in so many places, more detailed guidance, implementation guidance and so on, is often better handled in less formal documents.
MR. PAGE:
Usually, our guides are based on ways 12 of achieving compliance with specific measures and here we 13 were trying to clearly state the kinds of measures that we 14 believe constitute a comprehensive acceptable program.
15 So without these words, we simply say that a program 16 shall be adequate and be comparable with Information Circular 17 225, without clearly indicating which parts of Information 18 Circular 225 are the important ones and which ones we do not 19 believe need to be followed.
20 But it can be done either way.
We simply felt that 21 this was more responsive to our charge.
22 COMMISSIONER KENNEDY:
What it says is, it says 23 physical security measures providing as a minimum, protection 24 comparable to that set forth in Circular 2 25 _.,. _that doesn't Ace-Federal Reporters, Inc.
25 imply any specific set of particular measures.
It means a
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25 17 complex of measures which would provide a conglomerous result equal to the result that one would get by applying the rules of Circular 225.
Isn't that right?
MR. PAGE:
Yes, and we believe these nine measures that we have listed constitute the full scope of those things that need to be looked at to make that determination.
CHAIRMAN HENDRIE:
They really, then, in your view, they do constitute a set under which one can put the statement, these are the essential set of measures which must be considered.
MR. PAGE:
Yes.
CHAIRMAN HENDRIE:
A program which excludes all of these measures appropriately implemented will be acceptable.
COMMISSIONER KENNEDY:
It says each physical security program should include the following essential elements.
Each one should include the following essential elements.
Now that means to me that without one of them, you could not approve it.
MR. PAGE:
In a practical sense, we do not see how we could approve one without it, but I will not say that one cannot be drawn up.
For example, one could have a wall of guards rather than a fence and a barrier.
But thus far, the programs that we have reviewed, these have been the minimum requirements. that
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2 COMMISSIONER BRADFORD:
When you say there is this 3 other language in the statute about taking into consideratio.n.
4 variations and risk to security, where appropriate, you're 5 talking about these as being minimums.
6 I just wanted to be sure that that was clear.
7 MR. PAGE:
There's another provision of our alternati e 8 2 where there is specific language in there that says the 9 Commission will take into consideration the relative threats 10 in the country so that we consider the associated risks so 11 that additional measures may be deemed necessary.
12 That is not part of alternative 1.
Certain countries 13 have higher terrorist activities than we have in our country.
14 So, therefore, we think the norm should not be used as the 15 basis for judging adequacy there.
16 COMMISSIONER BRADFORD:
But you can't bring this 17 country into it, really, anyway, can you, because you are using, 18 what is it, part 73 as a standard, and then you would be above 19 and beyond Circular 225.
20 MR. PAGE:
That's true.
Let's take Britain or 21 some country*where they do not have terrorist activities to 22 the extent that they have in other places of the world.
We 23 would want to consider the threat to the nuclear material in 24 looking at the overall.approval of the program because there Ace-Federal Reporters, Inc.
25 may be additional measures that may be appropriate in one countr
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But these nine that we 2 have listed we believe are a minimum element of all programs.
3 MR. STOIBER:
Could I point out one aspect of the 4 legislative history, and that is when Congress required the 5 Commission to promulgate its regulations within 60 days, :they 6 specifically used the term "levels of physical security" in 7 distinction to the term "measures of physical_security,"
8 which were used in the criteria no. 3.
And I believe the 9 intention there, and I think there is some legislative history 10 to support that, is that what ~ongress was really interested 11 in was not descending to great particulars here because they i'
12 felt that might well tie the Commission's hands in approving 13 a variety of different types of measures.
But what they wanted 14 was a general statement of the categories of material and 15 the general levels of protection which would be consistent with 16 Insert 225, Reg 1.
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I think as a matter of law either of the alternatives 18 that you have before you are proper and either would do the 19 job.
20 I tend to think that Alternative 1 probably more*
21 accurately represents the Congressional intention.
I can see 22 the desirability of more specificity in the second alternative 23 as guidance, but I can also understand what is perhaps. a 24 lawyer's argument, that the expression of one measure may be Ace-Federal Reporters, Inc.
25 deemed to imply the exclusion of another measure.
I would not
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2 Therefore, if Alternative 2 is adopted, I would 3 think that the equivalency provision or concept in the criterion 4 would be a desirable thing to put into the regulations, in 5 addition, so that people were clear that there was the 6 possibility of meeting the measures with equivalent other 7 activity.
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10 11 COMMISSIONER KENNEDY:
Is it not also true that the legislative history reflected the general understanding of Congress that physical security is a matter of national jurisdic tion.
It is a sovereign. matter.
And whereas, just as the 12 IAEA has visualized this, and thus, was looking to a general 13 statement of intent, much as you expressed it, that there 14 were levels rather than specific measures.
So that the 15 Commission and this government was being given an opportunity 16 to review a total concept package of physical security 17 measures being undertaken to determine whether in sum, those 18 measures provided a level of physical security adequate to 19 meet our needs.
20 MR. STROIBER:
I certainly think there was that 21 element on the part of many of the leading actors in the 22 Congressional consideration.
I think also the use of the term 23 "levels" here is significant because I can recall debates in 24 discussions where this provisions on the regulations initially Ace-Federal Reporters, Inc.
25 had measures in it, and there was a discussion about whether or
gsh 11 21 not that would be too intrusive and create perceptions that 2; we were trying to dictate to other countries, how they should 3 organize their police forces and other matters.
4 CHAIRMAN HENDRIE:
Jerry, if you stop and think 5 about things like the general design criteria, you come to 6 one that says, thou shalt have containment and you say,.bo¥,
7 that's a lot of guidance.
What is that?
You have regulatory 8 guides, standard review plans.
And it has the advantage that 9 it is less than cast in stone and the staff has a certain.
10 flexibility where the need arises to readjust that without 11 coming back to the rule-making proceedings.
12 And I must say both the threat analysis, both the 13 list and the threat analysis paragraph would appear to me to 14 be the sort of guidance that you would want to provide probably 15 in Reg. Guide form because that is a pretty well established 16 format for such guidance these days -- to indicate the l? staff's current view as to how you go about providing necessary 18 information to show that your physical security program provides 19 as a minimum protection comparable to that in 225.
20 And again, on the threat side, to deal with the 21 determinations that may be based on country-wide findings and 22 reexamine the findings in the changed circumstances and so on 23 and so on.
And you can say what does that mean?
Well, you've 24 got a Reg Guide that says here the sorts of things you want to Ace-Federal Reporters, Inc.
25 look at in these lines, and the staff will be thinking about.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22 MR. PAGE:
We clearly agree that we can do what we want to do with either alternative.
I don't want to leave the alternative that we are dug in on Alternative 2 at all.
MR. GUHIN:
If I may clarify one thing.
I hate to leave a wrong inference, particularly in my last showing here.
But the question, I think, could have been understood that I said oftentimes in our review, we *go beyond these.
And I think that that is not ~eally entirely accurate and I did not mean to infer that as such.
But I think if you look at the proposed standards themselves in Alternative 2, that they are very ambiguous.
That what I mean to say is that when you talk about procedures for controlling access, I don't think that there is a country probably in the world that has not had procedures for controllin access.
Your review focuses on what kind of procedures and do these procedures accomplish what.the goal is or intrusion *..
alarms.
Do these alarms really do the job?
Those are the kinds of reviews, the things that we have really focused on.
MR PAGE:
Mr. Chairman, as one last comment, Informat*on Circular 225 did contemplate that the physical protection levels in the country would vary from country to country, depending upon the threat.
And this is clearly stated in the Ace-Federal Reporters, Inc. opening Section 1. 4.
25 So we have the wherewithall. to still use the basic
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 criterion in the document and do the types of things that we feel is necessary.
COMMISSIONER KENNEDY:
What you're saying there is that in Alternative 1, you would have in regulation the force of law that you would need to have to do what you think is essential.
MR. PAGE:
Yes.
COMMISSIONER KENNEDY:
It seems to me in such a case, that argues for leaving it to Alternative 1 because for the very reason that it does provide that measure of flexibility that the Chairman is referring to.
And it seems to me that is a very important thing to have.
The more specific you get, and specificity is importa t and desirable in some cases, but not always, the more specific you get, the more important it becomes that you be all-inclusive and you be very precisely meaning.:
These are neither, I think.
They are ideal for the purpose which you use them.
That is in the guidance sense.
But if you are laying them out as a regulation, it seems to me they begin to take on a force of greater precision than they now show.
So I would think that as the Chairman suggests, this is guidance, this is staff guidance as to how it goes about Ace-Federal Reporters, Inc. implementing, achieving at least the levels of Circular 2 25.
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24 CHAIRMAN HENDRIE:
I wanted to have a little quiet, 2 sort of semi-private poll here for a moment.
Did you have 3 more questions, Peter?
4 COMMISSIONER BRADFORD:
I did have one other question.
5 You said there was 100 and some provisions in the circular?
6 MR. PAGE:
I haven't counted them, but there are 7 many, many pages and there are criteria within criteria.
So 8 there are many built in. It is maybe 60 or so.
There are a lot 9 of them.
10 COMMISSIONER BRADFORD:
I just want to understand the 11 logic by which we can say -- say 100 is the right number and 12 we're taking 10 of those which are really important.
Are you 13 really able to say that by taking only those, that you are still 14 coming out with a level of protection equivalent to that which lS Circular 225 would provide?
16 What does that say about the other 90 or 80 or 70?
17 CHAIRMAN HENDRIE:
I don't think he imparts it that 18 way, Peter, because that implies that there's 100 and all 19 have a comparable dignity and meaning to the 10 here.
20 21 COMMISSIONER KENNEDY:
Many of them are subsets.
COMMISSIONER BRADFORD:
All I think it implies is 22 that they have some meaning at all.
That is, there must be whol 23 categories of things that you are saying really doesn '.t matter.
24 MR. PAGE:
Well, this document was not written really Ace-Federal Reporters, Inc.
25 as a requirements document.
It is written as a guide to countri s
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o consider various types of measures that can be used in order o provide the level of protection and thought necessary.
COMMISSIONER KENNEDY:
They are grouped in subsets, ssentially.
MR. PAGE:
They are, but it is more of a hodge-podge than it is a well thought through criterion, and then subcriterio.
It can be done better than it has been done.
COMMISSIONER BRADFORD:
But, in effect, what I think the judgment must imply is that there are whole subsets and that you don't need, at least ~or purposes of minimums.
MR. PAGE:
We believe that all the other measures that are in here will fall under one of the nine that we have I
listed.
COM.MISSIONER BRADFORD:
Okay.
So what you're saying is that the nine will pick up everything in one way or another, pick up everything.
MR. PAGE:
Yes.
CHAIRMAN HENDRIE:
That is why I am saying we can't quite parse it as 10 percent.
These are set on a different scale.
Look, how do you feel about the alternatives?
I am leading to the question of whether we should attempt to go forwar to a conclusion here or whether we should postpone discussion now over to Monday afternoon?
And it aepends upon your 1
Ace-Federal Reporters, Inc. feelings?
25 COM.MISSIONER BRADFORD:
It seems to me that if what
26 gsh 16 1 we' re really saying is that these 10 things are minimums, 2
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then I should think that they belong in the regulations, or perhaps very firmly worded in the Reg Guide.
But I want to take a look at the difference in enforceability.
If all they are is guidance, but that is not what I understand the history has been -- Jerry has said that they have been, in fact, enforced in every export that we've done.
Then obviously, the language of the Reg Guide and sliding things 9 in and out would be more appropriate.
10 But it seems to me that if we' re talking ;about 11 something that really isn't a minimum,. a program that we would 12 intend to approve an export under, that that should be under
-nd T. 4 13 regulation.
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CHAIRMAN HENDRIE:
I think it would be best if we hold it over until Monday afternoon.
That would a_llo.w us 3
some time to contemplate, and we would also have a full 4
Comm i.ssfon present.
5 What I would ask you to do, then, is to join me in 6
voting a short-notice mseting on Monday afternoon.
7 MS. BECKER:
I would liks to make one point~.. We 8
won--'t m.eet the statutory deadline for pub! ication.. -on these 9
regulations if we put it over until Monday.
10 CHAIRMAN HENDRIE:
Those in.. favor of a short-notice
.11 meeting?
12 CA show of three hands.)
13 CHAIRMAN HENDRIE:
..If you think that is the worst 14 of my problems, Jo Ann, we will have to go out and have a 15 drink and chat~
Perhaps we wonJt be very far behind, at any 16 rate.
17 (Whereupon, at 4:20 p.m., the meeting was adjourned 18 to proceed to other business. )
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