ML22230A200
| ML22230A200 | |
| Person / Time | |
|---|---|
| Issue date: | 05/10/1978 |
| From: | NRC/OCM |
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| Tran-M780510 | |
| Download: ML22230A200 (1) | |
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ETUR TO SECRETARIAT RECORDS-
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DISCUSSION OF SECY-77-611D - DRAFT AMENDMENTS TO THE ATOMIC ENERGY ACT ON TRE PROTECTION OF SAFEGUARDS INFORMATION AND RELATED MATTERS (Open to Public Attendance)
May 10, 1978 Pages 1 - 94 Prepared by:
C.H. Brown Office of the Secretary
DISCLAIMER This is an unofficial transcript of a meeting of th2 United States Nuclear Regulatory Commission held on May 10, 1978 in the Commission's offices at 1717 H Street, N. t,J., Hashington, D. C. The*
meeting was open to public attendance and observation. This transcript has not been revie~*ted, 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 formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs. Mo pleading or other paper may be filed \*lith the Commission in any proceeding as the result of or addressed to any statement or arg~1ment contained herein, except as the Comr.iission may authori.ze.
. 1 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 5
DISCUSSION OF SECY-77-611D DRAFT AMENDMENTS TO THE 6
ATOMIC ENERGY ACT ON THE PROTECTION OF SAFEGUARDS 7
INFORMATION AND RELATED MATTERS 8
9 (Open to Public Attendance) 10 11 Commissioners' Conference Room Room 1130 12 1717 H Street, N.W.
Washington, D. C.
13 Wednesday, May 10, 1978 14 15 The Commission met, pursuant to notice, at 2:05 p.m.,
16 Joseph Hendrie, Chairman, presiding.
17 PRESENT:
18 Chairman Hendrie Commissioner Gilinsky 19 Commissioner Kennedy Commissioner Bradford 20 ALSO PRESENT:
21 S. Chilk 22 L. ~ossick H. Shapar 23 E. Case W. Parler 24 G. Mccorkle S. Ostrach 25 W. Reamer B. Snyder C. Stoiber L. Spector, Senator Glenn's office
2 1 P R O C E E D I N G S 2 CHAIRMAN HENDRIE: Okay, let us turn to a discussion 3 of draft amendments to the Atomic Energy Act on the protection 4 of safeguards information and related matters.
5 There is a paper, 611 and so on, subsequent amendments.
6 I think we are up to 7 MR. SHAPAR: D.
8 CHAIRMAN HENDRIE: -- D. Which were the results of 9 my concern that the narrowing of the proposition which has 10 gone on had gone further that I could be happy with.
11 So I asked Howard to prepare D which went back and 12 included some of the earlier provisions, but in a format 13 essentially the same as that of C which I found to be, at least 14 in my reading, a more easily understood format.
15 COMMISSIONER GILINSKY: Before -you get to D, could 16 you -- I'm sorry if I interrupted you.
17 CHAIRMAN HENDRIE: No, I'm about done.
18 COMMISSIONER GILINSKY: Could you briefly run over 19 Casto how we get to where,we are.
20 CHAIRMAN HENDRIE: Yes, I think that would be a good 21 idea.
22 COMMISSIONER KENNEDY: Maybe we should start at the 23 beginning and figure out how we got here.
24 MR. SHAPAR: Would you like me to start with A and 25 end with D?
3
- 1 COMMISSIONER BRADFORD: What about E?
2 MR. SHAPAR: That's future.
3 COMMISSIONER BRADFORD: There is an E now?
4 CHAIRMAN HENDRIE: Smith has filed one, but i t is 5
sort of extra. Go ahead.
6 COMMISSIONER KENNEDY: Smith has filed one? What 7
is that one? Do I have that one?
8 MR. SHAPAR: "A" was responsive to a Commission 9
request for legislation that would better implement a program 10 for the protection of -- give us statutory authority to 11 implement a more expansive program for the protection of 12 safeguards information.
13 That was considered by the Commission. The 14 Commission had certain .ref.irieni.eri+/-:sS, that they wanted in that 15 basic approach. Those refinements are~inco~pcir~ted in "B",
16 the basic approach is still the same and I will summarize 17 that in a minute.
18 When "B" was considered only Commissioners Bradford 19 and Commissioner Gilinsky were present.
20 COMMISSIONER GILINSKY: When "B"?
21 MR. SHAPAR: When "B" was considered, yes, sir.
22 And they requested essentially that the scope of 23 B be narrowed. "C" reflects the narrowed scope. "D" which 24 you>.have in front of you is the latest version of the draft 25 legislation, was ari attempt to bridge the differences between
4 1
"C" and 11
.D 11 * ' It is essentially the format ---
2 COMMISSIONER GILINSKY: Between "C" and "B"?
3 MR. SHAPAR: I'm sorry, between C and B, yes, sir.
4 It is essentially -- Bis essentially the format 5 of C rather than B with a few changes. The main changes 6 being three: source material would be included, security 7 plans or locations of plant equipment would be added to the 8 "detailed security measures for the protection of facilities,"
9 and the third one was the deletion of the word "substantially" 10 in the phrase: "facilitating th~ft, diversion or sabotage,"
11 which is the operating criteria for the promulgation of the 12 limitation for the new authority.
13 Those are the three major changes in C;. as now 14 reflected in D. So Dis essentially B with the three 15 substantive changes that I have just mentioned.
16 COMMISSIONER GILINSKY: .Could you just run over 17 those again, please?
18 MR. SHAPAR: Yes, sir.
19 Source material would be included in the authority 20 to implement regulations to protect not only byproduct.and 21 special nuclear material in the facility, but source material 22 as well. That was in B, it was not in C and it is in D.
23 That is one of the changes from C.
24 The next one is that in describing the *security 25 information it has been expanded to includ: "would be
5 1
protectable." It has been expanded to include: "security 2 plans or locations of plant equipment." This would be 3 added to the phrase, "detailed security measures." Okay.
4 COMMISSIONER KENNEDY: And this would apply not 5 only to fuels, but as well to production or utilization of 6 sites, is that right?
7 MR. SHAPAR: Only to the latter, but it coul'd if the 8 Commission is so ---
9 COMMISSIONER GILINSKY: It would apply only to the 10 former, I would think.
11 COMMISSIONER KENNEDY: Does it apply to fuels 12 MR. REAMER: It applies to both, material and the 13 facilities.
14 COMMISSIONER GILINSKY: Are you talking about the 15 amendment or are you taling about specific provisions?
16 COMMISSIONER KENNEDY: What does it apply to?
17 Does it apply to reactors?
18 MR. SHAPAR: Only the reactors as I read the current 19 version.
20 COMMJ;SSIONER KENNEDY: I'. Security plans and locations 21 of plant equipment_arid fuel cycle facilities it would not be?
22 MR. SHAPAR: Not as drafted, no.
23 CHAIRMAN HENDRIE: That circles a different substative ---
24 25 MR. SHAPAR: And there would be no reason why it
6 1
could be expanded for the fuel cycle facilities as well.
2 Perhaps that's a good reason why it should be.
3 MR. McCORKLE: NMSS suggeste_d that i t be added.
4 MR. SHAPAR: And we would have no objection to that.
5 COMMISSIONER KENNEDY: Okay.
6 MR. SHAPAR: Now, at this point let me point out 7 that ---
8 COMMISSIONER KENNEDY: And what was the third one?
9 MR. SHAPAR: The third one was the deletion of the 10 word "stibstantially" in the phrase: "facilitating theft, 11 diversion or sabotage." That was in B, i t was not in C, i t 12 is back in D.
13 COMMISSIONER KENNEDY: That deletes:~.it, ;:::so.-~it.:'.is 14 back.
15 MR. SHAPAR: It was in B, i t was deleted in C to 16 accommodate the request of Commissioners Bradford and Gilinsky, 17 just the reverse.
18 COMMISSIONER KENNEDY: It is really a very compli-19 cated subject.
20 MR. SHAPAR: Only because I'm making i t that way.
21 It is really very simple.
22 Substantially i t was not in B, i t was in C, and it 23 is not in D. Okay?
24 25
- those. tJi.'ltig_s*,*_ piie at a time.
7
- 1 CHAIRMAN HENDRIE: Before you go back we should note 2
one other thing which is more in a sense a mechanical thing.
3 Along with the Section 147 Amendment or the new 4
Section 147 there were some changes which were necessary to 5
161(i), 181 and 274. No changes from C, 181 or 274.
6 MR. SHAPAR: Right.
7 CHAIRMAN HENDRIE: In 161 8
MR. SHAPAR: There was a minor change to take care 9 of DOE.
10 CHAIRMAN HENDRIE: Yes. Because DOE draws its 11 authority from that same paragraph, the old AEC security 12 program. There had to be deletion of the phrase "and which 13 requires a Commission license,"
14 COMMISSIONER KENNEDY: And we deleted it.
15 MR. SHAPAR: It doesn't affect the substantive 16 authority that we are asking for, but it does take care of 17 a technical problem.
18 CHAIRMAN HENDRIE: If it had been left in, it would 19 have apparently given the DOE side a problem in using -- it 20 would have affected them seriously.
21 Now, didn't we also put a source material in there 22 at some point at 161?
23 MR. PARLER: Yes, the source material addition, to 24 make the ".D" "version._,conf:orm to the "B" version it was made 25 consistently throughout the draft.
8 1 MR. SHAPAR: There was a question about the draft.
2 CHAIRMAN HENDRIE: Okay, now let us go back to 3 147.
4 COMMISSIONER KENNEDY: What I would like if I could 5 take just one minute, I would like to go back, if you would 6 okay, now we know what each of these significant changes 7 play a role in, these,changes, the important substantive 8 changes -- somebody assess the importance of these. What 9 do,they mean? As a practical matter what is the effect:
10 of the differences, okay?
11 MR. SHAPAR: The source material addition can be 12 described, I think, fairly easily.
13 The legislation as drafted under any version would 14 cover byproduct material and special nuclear material and 15 facilities. Obviously the key interest as far as safeguards 16 is concerned is in SNM and that traditionally has been the 17 case. But there also has been concern to a much lesser 18 extent with respect to safeguards in the context of the 19 protection of source material. For example, source material 20 is mentioned tn the Nonproliferation Act. In fact, source 21 material is mentioned in connection with the Commission's 22 safegurds responsibilities in the Energy Reorganization Act, Sections 203 ---
23 24 COMMISSIONER GILINSKY: Well, what are we guarding 25 against here, the theft of source material?
9 1
MR. SHAPAR: Diversion of source material, I think, 2 would be the major emphasis, yes.
3 COMMISSIONER GILINSKY: So we are going to keep ---
4 COMMISSIONER KENNEDY: And that would be to include 5 i t would make i t consistent, in your view, with the law up 6
to now, A, B, with your,~understanding of the Nonproliferation 7 Act?
8 MR. SHAPAR: That's my understanding, yes.
9 COMMISSIONER KENNEDY: And not to do so would make 10 i t somewhat inconsistent with each?
11 MR. SHAPAR: I think so, in terms of the way our 12 safeguards and responsibilities have been handled in the past.
13 The major emphasis has been indeed on SNM, but there has been 14 a much lesser concern with source material, but i t has been 15 there nonetheless.
16 COMMISSIONER KENNEDY: Consistent with legislative 17 language in history?
18 MR. SHAPAR: Yes.
19 COMMISSIONER KENNEDY: Okay, that's what I wanted to 20 know.
21 COMMISSIONER GILINSKY: Do you really think so?
22 I mean 23 COMMISSIONER KENNEDY: I asked him and he gave me 24 an answer, and I'm accepting his answer because that was my 25 understanding as well. Since he has not contradicted my
10 1
understanding, I don-~t know where to go from here.
2 COMMISSIONER GitINSKY: Well, you put the question 3 so surly.
4 COMMISSIONER KENNEDY: Well, that's usually the 5 way you get the right answer to the question.
6 MR. SHAPAR: Do you feel the wi tr1.ess has been led?
7 COMMISSIONER GILINSKY: What we are talking about 8 here is authority to keep source material shipments secret 9 and plans for such shipments secret, locations secret and so 10 on. Isn't that going far*.: beyond what ---
0 11 CHAIRMAN HENDRIE: To the extent I don-~: t: :know.
12 Does the plum bat affair give you any pause or not? To 13 the extent I know---*
14 COMMISSIONER KENNEDY: It gave Paul Leventhaul 15 a pause I note in an article just the other day.
16 COMMISSIONER BRADFORD: I think the pause is the 17 opposite why it gave Paul Leventhaul, tnat!,s what got things 18 started.
19 CHAIRMAN HENDRIE: To the extent that you want to 20 be in a position to say you are minimizing the risk of . ~:).::::,
21 diversion of the yellow cake war materials which then could 22 be used in a graphite or heavy water reactor, why something 23 like this is handy.
24 MR. SHAPAR: This material is included in IAEA 25 Categories I and II.
11
- 1 COMMISSIONER GILINS.KY: I understand, and I feel 2
there is a sense of protecting the material, but ---
3 COMMISSIONER KENNEDY: Are you sensitive f.or the 4
need for that?generally speaking?
5 COMMISSIONER GILINSKY: Not entirely, but what 6
are we talking about, extending the safeguards review to 7 mills, to God knows what?
8 MR. SHAPAR: Oh, this is permissive authority.
9 COMMISSIONER GILINSKY: I understand, it is just 10 authority and you don't have to use it, but y.6urgo up there 11 for a purpose and you ask for this authority because some 12 day you might want to use it, presumably you think you might 13 and there may be a reason to do it because this covers an 14 area where you think you'.*:might want to go.
15 COMMISSIONER KENNEDY: If you don't, and .you iater 16 find a part+/-cular situation or case in which you.do, without 17 the authority you would have a slight problem.
18 COMMISSIONER GILINSKY: That's right, but of course 19 you could always go up again. It is very hard for me to 20 invision using.that authority.
21 COMMISSIONER BRADFORD: You are having the same 22 difficulty with this as I had with the aspects of the clearance, 23 which is when the Senators look at you and say we are going 24 to make a case as to why you should have this authority, what 25 is it you are worried about. You have to have some answers.
12 1
COMMISSIONER GILINSKY: If you ask this question 2
against uranium, I think I know the answer.
3 CHAIRMl\N HENDRIE: Well, this is clearly a second 4
order concern compared to weapons useable materials, there is 5
no question about that and then the question is: would you like 6
to have the .*.authority if it ever seemed appropriate in view 7
of circumstances in the world to take those steps,.would'you 8
like to have those authorities in the law that you could 9 implement them.
10 I must say for myself, I would not foresee any near 11 term* implementation, in fact, of protective regime on 12 the source material, but 13 COMMISSIONER KENNEDY: I understand the concern, I 14 don't see the problem either except to say that the 15 Nonproliferation Act must -- in this design -- must also 16 have taken these very thoughts that we are expressing into 17 account and did include in reference source material.
18 COMMISSIONER GILINSKY: Presumably there is the 19 material that you have to keep track of and that seems 20 perfectly reasonable, but:.+/-s it something you have to keep 21 secret and for whose handling people need to have clearances 22 and so on.
23 COMMISSIONER KENNEDY: And to what extent do safe-24 guards extend?
25 COMMISSIONER GILINSKY: I guess I wouldn't go that far.
13 1 CH~IRMAN HENDRIE: Well, in particular because 2 I don't see -- my tendency wouid be to say if one is going 3 to talk about this kind of legislation, I would try to ~ook 4 ahead and get it framed so that there were authorities 5 presiding there that might conceivably -- the Commission 6 might want to implement some day. I think your approach 7 would be to say no, you know, if we see some need for source 8 material protection in the furture along those lines, go back 9 and change whatever is down,:off::the:_,books that provides it.
10 Since I don't see any -- I haven't foreseen any 11 moving on any implementation for source material in the near 12 future, unless circumstances change substantially from the 13 present, I'm not hung hopelessly and to the bitter end on it.
- 14. I'm negotiable though, what do you have to negotiate?
15 COMMISSIONER GILINSKY: Well-~-
16 COMMISSIONER KENNEDY: I will deal with them one at 17 a time.
18 As a practical matter, I don't -- you know, given 19 the fact that we to a very large extent see the problem r __
20 essentially the same way, I can thus recognize the import 21 of whichever we wish to go. I'm not persuaded we have to do 22 this. I think i t would be a prudent thing to do, I think 23 it is not an nun.ecessary thing to do, thus, if ---
24 COMMISSIONER GILINSKY: Let me ask. Do we want to 25 have material accounting requirements for source material?
14 1
CHAIRMAN HENDRIE: Do we? I doubt it very much.
2 MR. McCORKLE: I would like to just make one 3
statement in that regard.to the Category II:.and Category 4
III rule which refers to source material, and it is envisioned 5
that some degree of protection, albeit, the minimal amount 6
what we provide in to it, insofar as the international 7 community is concerned 8 COMMISSIONER KENNEDY: The IAEA statute?
9 MR. McCORKLE: Yes.
10 CHAIRMAN HENDRIE: But in terms of the domestic 11 fuel supply industry, I don't think we~- if we added up and 12 substrated, I'm pretty sure we don't publish inventory 13 differences on it and otherwise account for it.
14 COMMISSIONER GILINSKY: What are we going to keep 15 saying?
-16 CHAIRMAN HENDRIE: At. the moment, nothing.
17 MR. SNYDER: The practical matter is there is little 18 if any information that we would cover at the moment.
19 CHAIRMAN HENDRIE: At the moment, nothing.
20 In three or four years if there gets to be concern 21 over people heisting natural uranium ores and yellow cake 22 in shipment, to run it out some place to some other nations 23 COMMISSIONER KENNEDY: Some people for over the 24 years have_expressed precisely those concerns. As a matter 25 of fact in the New York Times on Sunday there was, as I recall;
15 1 the anniversary of the first expression of concern in this 2 matter. History suggests to me, albeit contemporary history, 3 that once one hears those expressions of concern they are 4 likely to deepen and strengthen, not lessen. Therefore, you 5 are talking about a period, I should think, in the relatively 6 near term when it will become a matter of great concern 7 even though in fact, it is not now.
8 MR. McCORKLE: I'd like to bring one other point 9 up that Dr. Smith mentioned in a memorandum recently that the 10 leading source material from Sections 147 and 16l(i) (22) 11 would imply that the need to protect source material is 12 less than byproducts and he disagrees with that proposition.
13 He notes that both the IAE staff and the Nonproliferation 14 Act mention source material and they remain silent on byproduct 15 material. I note that here it does not question the byproduc::'t 16 material.
17 COMMISSIONER GI LINSKY: Well, I assume wheff,,you, are 18 including byproduct material you are talking about radioactive 19 waste which could be harmful to people.
20 CHAIRMAN HENDRIE: Well, what ever the standard 21 amounts significant for the public health and safety or the 22 common defense and security as determined by the Commission.
23 MR. McCORKLE: At the present time, I mean,such 24 materials.are exempt from security requirements. There are no requirements for any security measurements in the 25
16 1
transport, for instance,of Cobalt 60.
2 CHAIRMAN HENDRIE: But there will be on spent fuel.
3 MR. McCORKLE: At the present time there is none 4
on spent fuel.
5 CHAIRMAN HENDRIE: Well, wait until we get down the 6
line a little bit.
7 COMMISSIONER GILINSKY: Do you mean there is something 8
in the works for spent fuel or not? Do we have anything 9
in the works to provide security for spent fuel?
10 MR. MCCORKLE: There is nothing.in the works in the 11 new Part 73.
12 CHAIRMAN.HENDRIE: I say, give them a little while 13 and I think we will.
14 MR. McCORKLE: The FEA does require that adequate 15 security measure be maintained with respect to export 16 authorities, which means there would have to be some 17 security measurement plan developed, ifi'.we are going to be 18 consistent with that Act. So do we wish to protect those 19 plans or don't we and I think that's the issue here.
20 MR. SHAPAR: Well, I think you have got a short-term 21 issue and a long-term issue here and -_th~y both need to be 22 considered.
23 CHAIRMAN HENDRIE: It seems to me that is ample
- 24. discussion on source material and I think we should see where 25 they kind of settle down. Why don't we move on to other points
17 1
and get these all mapped out.
2 MR. REAMER: Before you move on, let me point out 3
one aspect of 16l(i) which does include source material, and 4
that is 161(i) and in there we are expressly recommending 5 legislation that would include in the Commission's rulemaking 6 authorities, the authority to impose safeguards requremertts 7 that would cover source material. So to the extent that 8 Dr. Smith has concerns, by deleting source material from 147 9 would be suggesting that there is no ne~dcto_ *protect*::.that.
10 I don't think that concern is legitimate. I think 161(i) 11 shows that you are -- to the extent that safeguards requirements 12 for source material are required and we are seeking legislative 13 authority to carry that out.
14 MR. SHAPAR: At one time the Commission,;sought to 15 expand 161 (i) to specifically include source mater_ial for 16 reasons that were very clear that perhaps it wasn't adequately 17 covered. I don't consider that a major problem, because we 18 probably could derive the authority from section 65 of the Act.
19 COMMISSIONER GILINSKY: But does it necessarily follow 20 just because you have to keep track of the material you have 21 to keep that accounting secret?
22 MR. SHAPAR: It doesn't necessarily follow, no.
23 CHAIRMAN HENDRIE: Not necessarily because it could 24 go.. ~here and stay there and 161 conceivably ---
25 COMMISSIONER KENNEDY: Which is a different
18 1
question than the physical security arrangements whibh are 2
being spoken of here. It could be international contacts, and 3
if you are going to have those then the necessity could 4 protect whatever plans are associated with those statistical 5 data.
6 MR. REAMER: Well, it is my understanding from the 7 staff that they do not contemplate that a something called 8 security plan will likely be adopted for source of material 9 exports. There may be certain types of security measures, 10 but there won't be anything that amounts to a security plan 11 and detailed security measures, at least in their interest.
12 CHAIRMAN HENDRIE: Okay, good point.
13 Could we go on to the second point.
14 MR. SHAPAR: The second, as you recall, and again 15 now this is illustrating the differences.between versions C 16 and D.
17 The word "security plans or locations of plant 18 equipment" have been added to "detailed security measures~'"for 19 the physical protection of production or utilization facilities.
20 I,think this was a point that was made by either NMSS or NRR 21 or both.
22 MR. CASE: My concern was that security measures 23 might be read narrowly not to include security plans nor 24 possibly not to include plant equipment -- lay out of plant 25 equipment which I thihk.'is important from a physical
19 1
protection standpoint. So to avoid that, I suggested that 2
those other words be added.
3 MR. SHAPAR: And I think the point was made earlier 4
that if it deserves to be in here, then perhaps it also 5
deserves to be in the fuel cycle as well. At least that was 6
one argument.
7 COMMISSIONER GILINSKY: What kind of equipment are 8
we talking about?
9 MR. CASE: I'm talking about location of equipment, 10 like electrical equipment, instrumentation. Not the details 11 of the, :equipment its elf, but its location within the facility.
12 You know, you can go here and screw that one up and you can 13 go over there and screw that one up. The detailed locations 14 was the concern to me.
15 COMMISSIONER KENNEDY: This recalls a briefing we 16 had a considerable time ago, well:over(a*~ear ago and you 17 may recall some people from one of the labs who had gone through 18 a detailed design examination of facilities to try to ascertain 19 if you really wanted to do some damage, how could you best go 20 about it. Remember that?
21 MR. SHAPAR: Sandia.
22 COMMISSIONER KENNEDY: They put a few red marks on 23 the chart, I think, that suggested that here were the places 24 that under the best of design circumstances you could 25 conceivably have difficulty' if somebody knew how to go about it.
20 1
MR. SHAPAR: It might be useful to point out that 2
in the earlier version the language was extremely loose with 3
which Commissioner Gilinsky and Commissioner Bradford had 4
trouble; It didn't attempt to define the kinds of safeguards 5
information we were interested in. The later version has 6
attempted to address that concern by specifying the safeguards 7
information we were interested in.
8 The point we have just been discussing is whether or 9
not it has been cut back too far or not.
10 COMMISSIONER KENNEDY: And that depends on one's 11 interpretation of the language in the version and Ed's 12 concern is that it might be so interpreted so as to exclude 13 these items, which his view, they should be included and I 14 must say I am sympathetic to his view. Indeed, as I recall, 15 it was information of precisely_* that._.,_kind-'.which drew some 16 anguished comments from officials of the Congress recently 17 unto which I thought we were trying to be responsive since 18 the Congress'. :comments were wise.
19 COMMISSIONER GILINSKY: Are you saying location of 20 plant equipment- for the physical protection of production 21 of these facilities, are you talking about equipment for 22 the protection of?
23 MR.-: CASE: ::r. Location_ of *equipment.
24 COMMISSIONER GILINSKY: What does :a.tha.t for physical 25 protection mean?
21
- 1 COMMISSIONER KENNEDY: That sounds like a glich 2
in language.
3 COMMISSIONER GILINSKY: He just stuck it in after 4
security plans because it was security plans for the physical 5
protection.
6 COMMISSIONER KENNEDY: I think he stuck it in the 7
wrong place fr.om the way you read it, it sounds like that.
8 MR. SHAPAR: Want me to read the whole phrase:
9 "Security measures, security plans or locations 10 of plant equipment for the physical protection of production 11 or utilization facilities inv~lving nuclear materials."
12 COMMISSIONER KENNEDY: Yes, but my question is the 13 same as Commissioner Gilinsky.!;s. Is this eq11ipment that is 14 designed for the physical protection of the equipment -- I mean 15 bf the facility?
- 16. CHAIRMAN HENDRIE: Or is it the location of equipment?
17 MR. CASE: It has other purposes. It could have that 18 purpose too.
19 COMMISSIONER KENNEDY: I know, but it is well beyond 20 that.
21 MR. CASE: Yes, it is well beyond that.
22 MR. SHAPAR: Then this language is ambiguous then.
23 COMMISSIONER KENNEDY: It +/-sin the wrong place.
24 It needs to be ---
25 COMMISSIONER GILINSKY: I think you ought to qualify
22 1
the plant equipment. -I think the idea is there, but you 2
don't want to 3
COMMISSIONER KENNEDY: It is vital to the safety.
4 COMMISSIONER GILINSKY: -- specific equipment that 5
MR. CASE: It is already detailed location. It has 6 got:that qualifier on there.
7 MR. SHAPAR: The preparatory language that embraces 8
all these categories are disclosure of safeguards information 9 wnich identifies a licensee, their applicants detailed, and 10 then it goes 1, 2, 3.
11 COMMISSIONER KENNEDY: Security measures ---
12 COMMISSIONER GILINSKY: Right.
13 MR. CASE: Or security measures or detailed locations 14 of plant equipment.
15 COMMISSIONER KENNEDY: If I understand the purpose 16 that you have in mind, Ed, which coincides with my own concern, 17 it ought to read something like: "security measures and 18 security plans for the physical protection of production or 19 utilization facilities involving nuclear materials, and the 20 location of plant equipment vital to the safe operation of 21 such facility."
22 COMMISSIONEK.<GILINSKY: Well, somebody better ask 23 this: does this include the emergency cooling system or 24 some other piece of equipment. Would that mean the Commission 25 is going to keep secret the configeration of the safety system?
23 1
COMMISSlONER KENNEDY: Well, that's a good 2
question.
3 MR. SHAPAR: Well, i t is location isn't it ---
4 COMMISSIONER KENNEDY: Yes.
5 MR. SHAPAR: Configuration, I guess,, tunder this 6
language would be okay, but the precise location within 7 the plant, where it is located w+/-thin the plant. Of course, 8 there~could be some cross-over.
9 COMMISSIONER GILINSKY: It really sounds as if you 10 could keep the detailed drawings of the plant secret. Now, is 11 that what we intend? You are basically saying the schimatics 12 are::okay, but the engineering drawings remain secret.
13 MR. CASE: Yes. Sometimes we don It want. to. disclo~e .
14 i ihe_ exact*:*foca'tipn~ i:ri. ::f:.Iie_ p_ia11,t *. '.*.
15 COMMISSIONER GILINSKY: Well, do you want to 16 specify the equipment or is there some general category?
17 MR. CASE: I suppose I could try it. I would have 18 to go back to the previous discussion. I'm afraid I would 19 leave out something and then -- I guess you have gone over 20 that once.
21 COMMISSIONER GILINSKY: Well, but what is your answer 22 if this might include vital pumps for cooling systems ---
23 MR. CASE: Well, my answer today is no, we are not 24 concerned about those. I don't think so for the future, but 25 I couldn't conclude that.
24 1
COMMISSIONER KENNEDY: What we need to to, I guess*:
2 what Commissioner Gilinsky is suggesting, we have to have 3 somewhat more precise description than vital to the safe 4 operation of something in the plant, something more narrow 5 than that and we ought to get at the kinds of equipment we 6 are talking about.
7 CHAIRMAN HENDRIE: I think it is going to be hard to 8 write in to proposed .legislation that sort of level of detail.
9 I think you are almost going to have to fall back on the sort 10 of language that was included in the C version of the paper 11 for just this purpose in fact, which says the Commission must 12 exercise this authority so as to apply the minimum restrictions 13 needed to achieve the objectives of protecting health and 14 safety and so on, and upon a determination that.the unauthorized 15 disclosure of the particular information.would have, in the 16 words of this draft, a significant adverse effect on the 17 health and safety of the public by facilitating theft, 18 diversion and sabotage.
19 I think that sort of general threshold to the things 20 that you would.be allowed to withhold would be about as good 21 as you could do in a legislative package, and it seems to me 22 COMMISSIONER KENNEDY: So it ultimately comes down 23 to a case-by-case determination.
24 CHAIRMAN HENDRIE: Well 25 COMMISSIONER KENNEDY: You have got a generic class
25
- 1 which you could pick out fairly quickly, but then ,y'.ou:.:..~-;~*
- 2 going to get down to specifics and say, you know, what's 3
significant and how significant it is?
4 MR., '.SHAPAR: Well, you might want to get a little 5
more detailed in your rulemaking exercise.
6 CHAIRMAN HENDRIE: Yes, the rules to implement will 7
certainly want to come down to a further level of detail, 8
and there &re~tlearly conflicting objectives. The floor 9
plan of the reactor building and the auxillary building, 10 the site plan itself are in fact aids to a would-be saboteur.
11 On the other hand, due to disclosure of those 12 it would have a significant effect on health and safety 13 by facilitating sabot]:ag:e. Well, I think you would have to 14 say no against the ---
15 COMMISSIONER KENNEDY: Only if-on those-floor plans 16 the location of specific barriers and particular locking 17 devices was identified.
18 CHAIRMAN HENDRIE: Yes, you might prefer not to show 19 a particular doorway or what the nature of the barrier was.
20 The Commission's thrust to run a pretty open and public 21 safety evaiuation clearly runs counter to keeping out of the 22 hands of potential or wrongdoers any useful information, 23 and there is a balancing that has to go on. It seems to me that 24 the sort of language here, minimum restrictions upon a 25 determination and so on has the right kind of input in terms of
26
- 1 explainations provided for it.
2 COMMISSIONER BRADFORD: When you said that was 3
in 611 C, you are not saying it is out of 611 D?
4 CHAIRMAN HENDRIE: No, no. I was just saying that 5
that language appeared as part, I believe, as part of the 6
narrowing of the propositions that went on in C and it seemed 7
to me a rather decent threshold statement.~nd entirely 8
appropriate.
9 COMMISSIONER GILINSKY: Let's see, if you are going 10 to broaden this category then do you want to weaken the stand-11 ard by crossing out substantially.
12 MR. SHAPAR: That's the last point.
13 CHAIRMAN HENDRIE: Well, I think ---
14 COMMISSIONER KENNEDY: You have got "significant 15 adverse ef.fect".
16 CHAIRMAN HENDRIE: Yes, the concern raised that --
17 the thing that struck me about it and the concern was raised 18 by the staff, the determination of whattsubstantially 19 facilitates theft diversion or sabotage may get to be a 20 problem.
21 I think in this context substantially facilitating 22 raises a higher standard than you really want raised or it 23 will turn out that way by the time the staff gets through 24 interpreting it very carefully and so on. Staff has a tendency, 25 I'm afraid, to take very seriously those modifiers.---
27
- 1 COMMISSIONER KENNEDY: But here you have two 2
modifiers.
3 CHAIRMAN HENDRIE: -- and ---
4 COMMISSIONER KENNEDY: Significant adverse effect 5
caused by -- which would be caused.by substantially ---
6 MR. SHAPAR: Dr. Smith, in a memorandum to me 7 commenting on an earlier draft made the comment that 8 substantially* facilitating theft could be interpreted to mean 9 disclosure would have to result in a moderate or high probabilit 10 that the theft would be successful. I thirik you can argue to 11 that, but he makes the point.
12 COMMISSIONER GILINSKY: Well, let's take your example 13 of a floor plan of a reactor, okay. How would you apply 14 this, for example?
15 CHAIRMAN HENDRIE: I see no way that that could be 16 withheld under this provision.
17 COMMISSIONER GILINSKY: Well, but suppose the 18 unauthorized disclosure of such information could have 19 and adverse effect. Suppose somebody by using that could 20 discover all sorts of things and find a way to get in or 21 whatever, but there is no standard as to what incremental 22 difference that makes.
23 COMMISSIONER BRADFORD: In fact, having the floor 24 plan versus not having the floor plan seems to me would 25 substantially facilitate it. So that even if you had
28
- 1 substantially in there you would still have -- you might still 2
well get the floor plan for the reactor.
3 COMMISSIONER GILINSKY: Yes, but if it makes a lot 4
of difference to have it, then, you know, maybe this should 5
be classified or protected, but if it doesn't, then there 6 wouldn't be any potential there.
7 MR. MCCORKLE: Well, thetptoblem.:-boilS(1down to 8 one of judgment. It depends on who makes the determination 9 whether it is significant or of substantial value.
10 COMMISSIONER GILINSKY: Well, that's right and I'm 11 trying to make it easy to withhold too:*much:~:material.
12 COMMISSIONER BRADFORD: In fact, though, once you 13 start withholding material at all on a reactor, it seems to 14 me that if you are drawing a line at all is very hard. And if 15 you decide that it is rational to withhold some part of the 16 information about a reactor that there is going to be a fair 17 amount of other information that will fall into that class 18 pretty quickly, isn't there?
19 MR. CASE: We haven't done it so far.
20 COMMISSIONER BRADFORD: No, we haven't withheld 21 anything so far ..
22 MR. CASE: No, we have kept out the details of the 23 electrical equipment location.
24 CHAIRMAN HENDRIE: See, there is a body of information 25 that is held now under that what -- 2790?
29
- 1 MR. SHAPAR: Yes, that's right.
2 MR. REAMER: But that should be security related 3
according to our regulations. I don't know what the staff 4
practice is, but the regulation is clearly security related.
5 MR. McCORKLE: Our practice has been to interpret i t 6
actually the way i t is states, security measures. That's 7 part of the problem.
8 COMMISSIONER BRADFORD: So electrical equipment 9 would be what, .,simply :the alarms .and that sort of thing.
10 MR. SHAPAR:. We are .protecting, you understand, 11 under proprietary, an exception to the FOIA.
12 COMMISSIONER BRADFORD: I do understand that, but 13 MR. CASE: Howard is saying that that's the only 14 piece of information, I gather, in a reactor you would feel 15 nervous about now.
16 COMMISSIONER GIJLINSKY: Actually, the specific 17 the plant specific is reasonably protected under the 18 proprietary label.
19 MR. SHAPAR: Depends on your definition of reasonably.
20 CHAIRMAN HENDRIE: Well, if they are in our hands, 21 they are subject to an FOIA request aren't they?
22 MR. SHAPAR: Any information in our hands are subject 23 to that. Of course, one court has upheld the proprietary 24 category, but i t was a district court. The consensus of the 25 rule review around this place has been that i t may --- I'll drop that point.
30
'1 MR. McCORKLE: I might add and i t might be pertinent, 2
our application of 2~.790 and a strict interpretation of what 3
it states and that comes from the ELD people, we have also 4 been criticized if there is information of value in the Public 5
Document Room but we can't withhold.
6 MR. SHAPAR: Was your point the ELD point was too 7 strict?
8 MR. McCORKLE: No, no. You gave us the interpre-9 tation and I think~ it is a proper interpretation. I'm not 10 that is just a statement. I think it is a good legal 11 interpretation. That is exactly what it states. I am not 12 criticizing that, but there is a certain category of infor-13 mation which some people perceive as being of value that is 14 in Public Documents.
15 CHAIRMAN HENDRIE: I can also see some scale 16 with which you could withhold, depending on the nature of 17 how you do it. I wouldn't withhold a reactor floor plan.
18 If you wanted to discuss the floor plan of the building in 19 a __ fuel -,,cycle facility, you know, the main weapons useab,le 20 material vault.and the approaches to i t and so on as to 21 where they are located, why, I'm prepared to think again 22 and think maybe that's something that would fall -- you know 23 disclosure would be a significant and adverse effect.
~4 MR. SHAPAR: Of cours~, the concept is likely to be 25 tested in three places. One is you present this to the Congres
31 1 and number two, we issue a rule which could v:ery well be 2 tested and reviewed by the courts, and then the individual 3 application in the rule which itself can be tested.
4 COMMISSIONER GILINSKY: This is to apply both to 5 reactors and fuel cycle facilities?
6 MR. SHAPAR: Yes. The concept of all of these 7 versions from A thru Dis to cover-~ in fact, let me just make 8 a couple of generalizations here.
9 All of the versions cover both the fuel cycle and 10 nuclear reactors. That's point one. It protects it on the 11 basis -- all of the versions are protected on the basis of 12 both common defense anddsecurity and health and safety. And 13 third, all of the versions would protect it in the three 14 phases where we felt protection is needed.while the information 15 is in the hands of the NRC, while the information is in the 16 hands of the licensee or anybody else outside of the NRC and 17 third, during the hearing process itself where we attempted 18 to pick up some equivalency from 181 of the Act where you 19 cari. pr~-l:ec:i:-;,. 1.:: classified information, true classified 20 information but with a minimum interference of the procedrual 21 rights of parties.
22 Those are the three phases, and of course, the final 23 point is the protection would.apply under our versions to both 24 the informationa .. under a new section and the access to the 25 material itself which is already there under 161, but there
32 1
would be certain improvements in 161 to get people who are 2
other than just licensees, like architect/engineers, and I 3
think you remember that discussion that we had at several 4 meetings.
5 COMMISSIONER GILINSKY: Very well.
6 MR. SHAPAR: I ..think also, a lot depends, I guess 7
just from the standpoint of logical analysis here, is how 8
the Commission will all come out on the clearance rule on 9
which y:ou are starting a hearing. I think that's an 10 important consideration to take into account in your own 11 assessment of how you ought to go with it.
12 CHAIRMAN HENDRIE: Let's see, we are seesawing 13 back and forth between "substantially and security measures; 14 security plans and locations of plant equipment."
15 Ed, the reason you wanted the additional language 16 was to make sure that some things didn't get left out. Is 17 tit~rie a definition -- is it possible to cure this with a 18 definition some place, or is that a:,.bad way to go about it or 19 what? Howard do you want to comment?
20 MR. SHAPAR: I think we can improve on this, yes.
21 I think one of the points that has already been brought out 22 on improvement can be made, and that~,.is, it is not clear 23 from~.this version whether or not the location is important 24 because it has a direct effect on health and safety, or 25 could, or whether the*.:equipment is to protect the security
33 1 set up. I think that point is not clear as the language 2 is currently drafted and that could be improved.
3 I think another suggestion that was made.during 4 this discussion that it ought to be made clear that if 5 you are looking at vital safety information that concept could 6 perhaps be articulated better.
7 MR. REAMER: Especially if one were to have some 8 idea of the criteria that the staff might apply in deciding 9 which equipment would or would not ---
10 MR. SHAPAR: I tnink that's asking too rriuch in terms 11 of a statute of this kind.
12 MR. REAMER: Well, at a minimum, someone is going to 13 ask that question.
14 MR. SHAPAR: Yes, and I think we may want to develop 15 it perhaps the best we can in the section-by-section afialysis 16 if we have time ---
17 COMMISSIONER KENNEDY: And in rules.
18 MR. SHAPAR: And certainly in rules.
19 COMMISSIONER KENNEDY: Which will then be subject 20 to public comment and improvement, presumably, thereby.
21 COMMISSIONER GILINSKY: Do we already have the 22 authority to prescribe regulations to licensees on how they 23 ought to handle information of various kinds?
24 MR. SHAPAR: I think we do. It is a question of 25 how we can approach it. For example, I can see the Commission
34 1
now promulgating a regulation that will say to licensees, 2
all licensees shall use three-combination lock safes; number 3
two shall not disclose information to any person who 4
doesn't have a legitimate interest in the information 5
associated with the plant or something like that; and perhaps 6
a requirement, although this may be subject to some argument, 7
a requirement that licensees only employ people who are 8
trushworthy. You could get some argument about that latter 9 point.
10 MR. CASE: But that offers no piotection under 11 FOIA for the information in our hands.
12 MR. SHAPAR: And that's the easiest matter to 13 handle, the FOIA.
14 MR. REAMER: In addition, you could not require 15 clearances under existing authority.
16 MR. SHAPAR: The one thing you couldn't do under 17 existing authority, and that is clear from case law, is to 18 require an honest-to-goodness, government-run clearance 19 program. But that's different from whether or not could 20 require a licensee.
21 COMMISSIONER GILINSKY: You certainly could do it 22 in the case of a fuel cycle clearance.
23 MR. SHAPAR: Well, we are talking about information 24 for the moment. If you are talking about access to material 25 we have statutory authority now in terms of access to material.
35 1
With respect to access to documents you could do it if you 2
classify the material~
3 COMMISSIONE~ GILINSKY: Yes,_but access to security 4
plans can be reasonably construed to be access to material.
5 It is like having a combination to a safe is access to a safe.
6 MR. SHAPAR: I think one could make the argument, 7 in fact we have pushed it a little bit on occasion, but I don't 8 think it is a completely convincing argument.
9 Besides, I think wecdiscovered it when we analyzed 10 it before that the same people who would have access to the 11 material would not necessarily dove-tail with the people who 12 would have access to the information. For example, architect/-
13 engineer.
I 14 COMMISSIONER**_GILINSKY: It all depends I
on how much I
15 information they withhold.- I I
16 CHAIRMAN HENDRIE: I recommend we deal with Ed's I
I 17 elaboration by just letting that (iii) at the top read:
I 18 "Security measures, including security plans, procedures I
19 and equipment, for the physical protection~"
I MR. SHAPAR: Would you extend that to the fuel l
20 21 cycle too in the earlier sections?
22 MR. CASE: But you only cover se,urity equipment.
I 23 COMMISSIONER KENNEDY: Procedures and equipment I
24 for what, for the physical protection? I 25 CHAIRMAN.HENDRIE: Yes.
36
- 1 COMMISSIONER KENNEDY: That is nft getting to the 2 point if I understand it, that Ed was maki~g originally.
3 MR. CASE: Well, I suppose that [I could argue
- I 4 that electrical equipment, which is normally used for safety I
I 5 shutdowns also provides physical protection of the security I
6 in kind of a broad sense, because i t does. It keeps the 7 radioactivity from coming out.
8 COMMISSIONER KENNEDY: But you did characterize 9 that as stretching the point s0me to get tfuere I It seems to I
- 10 me i t is quite a stretch too. We are talking about different I
11 kinds of equipment. It might be the same, lbut it might not.
12 MR. CASE: It all depends, the::Jptim~ryt*,purpm;e,
. I 13 the secondary purpose, the tertiary purpose. If it has I
14 one of those purposes, then i t is ok 9 y is ~y argument.
15 MR. REAMER: Well you still have the question, which 16 someone will ask which is what do you intend to protect under I
I 17 the statute. The question will come up. ~o you intend to 18 protect plant equipment and safety-related plant equipment 19 or only security-related plant equipment? In that sense, the 20 statutory language would follow what you intend to do.
I 21 CHAIRMAN HENDRIE: At the moment ~ou are protecting 22 certain safety equipment, right? *1 MR. SHAPAR: Yes.
23 COMMISSIONER GILINSKY: The way. II understand, we 24 want,:to keep this information from public--~
25
37 1 MR. CASE: From the public domain.
2 COMMISSIONER GILINSKY: And because you will reveal 3 special vulnerabilities of the system against which there are 4 no hard word solution.
5 MR. CASE: (Nods in the affirmative.)
6 COMMISSIONER KENNEDY: Which kinds of vulnerabilities 7 exist in almost any kind of system, not nuclear systems, but 8 just generally any kind of a system has inherent vulnerabilities 9 against which there are always so many clearly limited measures 10 you can do, inevitably.
11 CHAIRMAN HENDRIE: Well, I think it is a fair 12 proposition. If you want to cover the waterfront, why, I guess 13 it needs a little redrafting to include locations of certain 14 vital equipment which still has to meet the standard that .the 15 Commission has to exercise a minimum instructions, and so on 16 and so on. That sounds as though it ought to be along the 17 lines of the thing you embarked on, Dick, a moment ago.
18 If we elaborate it separately, then security measures 19 for the physical production of, is certain adequate for all of 20 that material, right? Nobody is going to argue that security 21 may or may not be a plan or procedure or a piece of equipment.
22 I think that's okay. But you need to go on beyond that, security measures for the physical protection of ---
23 24 MR. CASE: You are not going to say security plans, your argument is that everybody would understand that security 25
I I
38 I
I I
1 I thing. I 2 I CHAIRMAN HENDRIE: Yes. It is tfue non-security 3 I vital safety system and stuff that you want to get in to there.
I 4 COMMISSIONER KENNEDY: Just a little technical 5 I pro~lem. Would you agree that security plans would be naturally I
I 6 incorporated within the phrase "security measures"?
I 7 MR. SHAPAR: I think you would get an argument on that 8 one.
9 COMMISSIONER KENNEDY: You would get an argument?
10 Do you think it would be better to put the word "security 11 plans" into it?
12 MR. SHAPAR: It is not a precise term of art by 13 any means. Some people look upon a measur~ as something that I
14 carries out a plan. And that's an initial/distinction.
I 15 COMMISSIONER KENNEDY: So then.you have_got to use 16 both to avoid that slight difficulty~ I 17 MR. McCORKLE: Could I ask one qlestion of Howard
. I 18 in connection with this point that Ed brought up.
19 Number 2 down there states, "stu~ies, reports and I
20 analyses," of this type, et cetera, my int~rpretation from
. I 21 the standpoint of fuel cycle facilities, the only time that I
22 we would have information, ~intl~ding critibal layouts like I
23 where a vault is, storage arrays, et ceter~, would be I
i 24 attached to a safety analysis. If i t is part of a security I .
25 plan them*;we*:.::can~:exelude*:*.that. In other wprds, if the I
39 ;:
- 1 legi§lation went through and ~aid security plans, we can 2
exclude it. Then I think if this number 21went through, it I
3 would include plant layout, at least insofar as those items
- I 4 are concerned it would be of some assistanbe -fb~ari~~d~~rsary.
,,. - - -- - I - - -- . --- - --
5 ., ~ .' :MR. SHAPAR: As I reqall the genesis of two and
-- . ----- -- I -
6 I could be wrong on this, I thought it waslas the result of I
7 NMSS or NRR suggestion that you sometimes generic studies ---
8 9
CHAIRMAN HENDRIE: And OPE too. l.
MR. McCORKLE: Okay, generic stu 1es and we also 10 had -- when you say reports and analyses ybu have got an 11 SAR, 'PSAR)and so on. Those are reports, wbuld they be included.
I 12 I don't mean all of the reports, but thoseithings in it.
I 13 In other words, blueprints, layouts and things that would be I
I 14 of assistance to an adversary.
15 MR. GOSSICK:
i Whose studies are these? Ours or the 16 licensee's onil:y? I 17 MR. SHAPAR: Well, I suppose thet could be both.
I 18 MR. GOSSICK: If they are ours, weI could classify them.
I 19 CHAIRMAN HENDRIE: Anybody:~:s studies -:_of.~.significant I
20 adverse effect, why, and so on and so on.
21 COMMISSIONER GILINSKY: Wait a minute, these are I -
22 whose studies are these?
I 23 MR. GOSSICK: That's what --- yes, yes. You know, I
24 we are paying for it and if they~are --- I 25 COMMISSIONER GILINSKY: Well, what if they are I
I
40 1 somebody else's studies?
2 I MR. GOSSICK: Well, that's the point.
I 3 COMMISSIONER GILINSKY: What if it is a Belgian i
4 stu~y? I raised the question, because youlknow restricted 5 I data covers the world. I 6 CHAIRMAN HENDRIE: Yes. I I
7 COMMISSIONER GILINSKY: It doesnit matter how it
. . I 8 originates, i t falls into certain categories, how, it is I
9 restricted data. I I
10 MR. CHAIRMAN HENDRIE: If the Belgians publish a 11 report and say, boy, a good way to sa~otag~ reactors --
12 Westinghouse reactors is as follows: Step!l, 2, 3 ---
1 13 But if the Belgians should indeed.publish such a I
I 14 document then the advice to saboteurs was l+/-ndeed,,. we I
15 considered i t a little too explicit, then ~hat report showed
. I 16 up in the U.S., why I would sure like to have I authority to I
17 have it. Say no, this isn't available to the general public.
I 18 COMMISSIONER KENNEDY: But if in 1. fact it is available I
19 to the general public in Brussels or somewhere in Europe I
20 CHAIRMAN HENDRIE: Can't help i ti, can't police 21 Brussels.
22 COMMISSIONER KENNEDY: But there1would be little 23 I would defer to counsel, of course -- I wbuld i not wish to.
i 24 go in to court to justify our withholding something that was 25 published.
41
- 1 CHAIRMAN HENDRIE: I wouldn't hesitate to do it, I
2 I don't care if they aie selling it on the lnewsstands in 3 I Brussels. If it shows up over here, I wou]d use the authority 4
to clamp down on it.
5 COMMISSIONER KENNEDY: I would ndt wish to pay my I
6 I lawyers to go in to defend that.
I 7
MR. SHAPAR: Well, there is a 1eJa1 theory that once
. I 8
something is out it has been compromised that I
9 I CHAIRMAN HENDRIE: I'm sorry, th~ 9overnment of the I
10 , I United States has worked that way for yea~s.
11 i COMMISSIONER KENNEDY: The Supre~e Court of the 12 I United States had something to say about that too, not all that II 13 long ago.
14 CHAIRMAN HENDRIE: Y~s, recentlyja sister agency 15 went and classified a report and sent it *O ,f to some folks 16 I and then thought better of it, said nope, we put the classi-17 fication back on and send your copy in. TJe guy said, no, 18 I am::. not going to send it back. Nevertheless, it was 19 rec 1 assi. f.i ed. Wh en I went to rea d it,
. wh yI it . was s t.i 11 a 20 c.lassified document, by George, and I had til o treat it as such.
21 Any way.
22 COMMISSIONER GILINSKY: I would Iimit it to I
23 requests as I th.ink we are getting into deep water if we I
24 go beyond that. Lets think about it, who dould be generating I
25 these reports? I
42 1
CHAIRMAN HENDRIE: I don'~ t know.
2 COMMISSIONER KENNEDY: There aref thinktanks around 3
town that are doing it all C~lie time.
4 MR. SHAPAR: Licensing could be doing it.
5 CHAIRMAN HENDRIE: Well, look,if you.think we ought 6
to tag in here studies, reports and analyses by -- I don't 7
know how one would put)it ~-2 NRC, NRC contkactors, licensees
- I 8
or applicants, why I have got no problem with that.
I 9 I MR. SHAPAR: And they are contractors.
I 10 CHAIRMAN HENDRIE: That ought tolprobably well cover 11 a good piece of the knowledgeal::>le -- of the capable community, 12 I
and I assume that DOE and Defense and all those other fellows 13 who might also write interesting_ things inlthis line would 14 exercise appropriate discretion on their oin behalf.
I 15 So I have got no objection to that.
- 1 16 COMMISSIONER GILINSKY: If it were NRC-generated, I
17 I suppose we could classify* it.
00 18 MR. GOSSICK: We can classify it, sure.
19 I Back on triple (i) with your sug9ested change, 20 I don't see that it adds anything to eithet one or two. You I
21 don't really need it to make this change. I i
22 Do you need triple (i) changed if you are going to I
- I 23 modify it, if I _understood the discussion goin here, I don't I
24 see what it adds really to one and two -- 6ne (i) and double (i) 25 that you have already covered. It is reduldant.
I
43
- 1 I CHAIRMAN HENDRIE: That's why I ~idn't add the 2
language in the original.
3 MR. REAMER: Its:-~principal b.asis I is because as to 4 I production and~utilization facilities we r~~tiire a security 5
plan relative to the facility and not the iaterial. And so 6 I MR. GOSSICK: Oh, is that the reason.
7 MR. CASE: Well, I assume that wluld also apply 8 I to repr:ocessxng.::facili ties, I don't know. 1 9 I
- a 1 so our recommen d ation
. th at MR. McCORKLE: It is I
10 i t be inserted in fuel cycJiftg~gadi~ities*fn both one and 11 two, (i} and double (i}. I 12 CHAIRMAN HENDRIE: Do you want to get conclusive:
13 "Security measures, including seburity plans, 14 procedures and equipment, for the physicallprotection," okay?
15 I .
I move that be standard language in all three paragraphs.
I 16 COMMISSIONER KENNEDY: All right~ fine.
I 17 I CHAIRMAN HENDRIE: It samply says what you mean I
- I 18 by security measures or at least in part w~at you mean by I
19 security measures and if that will help pe9ple, well, good.
20 Do it all three places. I I
I 21 Now, it has got an additional problem because he 22 wants to protect the~16cations of certain tital equipment, 23 notably, certain crucial elecrical circuitl7in reactor plants.
I I
24 So in triple (i} that needs another phrase after I
25 security measures including security plansJ procedures and
44 1
equipment for the physical protection. Yo1;1 need to get 2 I another clause in there that says, "and lotations of vital 3
plant equipment for". I 4
COMMISSIONER BRADFORD: Is i t only in electrical 5 I circuity? I I
I 6
MR. CASE: That's the only thing1I'm worried about I
7 now. I 8
MR. GOSSICK: And only location, lot characteristics I
9 or specs or anything else?
10 I COMMISSIONER BRADFORD: What would happen if you i
11 said electrical circuity instead of plant equipment?
I I
12 MR. CASE: Tomorrow i t changes aha theny;ou have I .
13 i got to go back to Congress is about my only answer.
I 14 COMMISSIONER KENNEDY: Yes, you ~eep redesigning it.
I 15 MR. CASE: I would really like-t0 have it a little 16 broader than that. I I
- 17. COMMISSIONER BRADFORD: But the ~inute you get it I
I 18 a little broader, then you would at least lilave language that I
I wofild~at least include a large part of theiplant, co~ld I
20 include=.::a,:J::11:1.r,ge part of the plant.
I 21 MR. CASE: You cbuld put vital i~ there or essential I .
22 to plant safety, but it is still a large p0pulation.
II 23 COMMISSIONER KENNEDY: But that is governed by the I
24 s.uceeding paragraph which imposes upon the i Commission the I
I 25 obligation to very* sparingly use these definitions ..:.:*..
I
- . ---~~~ ,,
I I
I I
~~
45
- 1 I guess it would be appropriate for the rulemaking 2 in which public comment would undoubtedly help us improve 3 and sharpen the application.
4 CHAIRMAN HENDRIE: Can I put vital plant equipment 5 in, locations of vital plant equipment?
6 COMMISSIONER KENNEDY: Well, I think vital plant 7 equipment is pretty broad.
8 CHAIRMAN HENDRIE: You could move along with primary 9 system and the essential safety circuity with no question under 10 that definition, except that you do have the other thrushold.
11 And I would suggest the language read -- Howard see if you could 12 stomach this and if you think of a better way of doing it.
13 I will start at the top: "Security measures, 14 including security plans, procedures and eq~ipment, for the 15 physical protection of, and locations" -- I think I ought to 16 13ay, *llcertain vital plant equipment." To say vital plant 17 equipment, it sounds like everything that is vital is in it 18 and that adds the wrong smell to it -- "and* locations of 19 certain vital plant equipment in, production and utilization 20 facilities," et.cetera.
21 MR. REAMER: In order to avoid any confusions about vital it might be better not to have it modifing plant.
22 Perhaps you could say, "locations of plant equipment vital 23 to the safety of" -- that would be an option.
24 COMMISSIONER GILINSKY: Well, it is really not vital, 25
46 1
it is really vulnerable, isn't it?
2 COMMISSIONER KENNEDY: It is not only the vulnerabilit, 3
but the vulnerability if exploited could result in.
4 COMMISSIONER GILINSKY: I don't mean vulnerable 5
equipment, it is the vulnerabilities of the plant.
6 COMMISSIONER KENNEDY: Yes, that's correct.
7 MR. SHAPAR: What you really mean is attracted to 8
a saboteur.
9 COMMISSIONER KENNEDY: If he knows.what he is doing.
10 MR. SHAPAR: Attraction to enlighten a saboteur.
11 CHAIRMAN HENDRIE: How bad off are we with plant 12 vital equipment or vital plant equipment?
13 MR. SHAPAR: I think any general words would be 14 workable, again ---
15 CHAIRMAN HENDRIE: Well, Bill has got this concern 16 that it sounds like a piece of vital plant equipment as 17 something you need to make the plant work.
18 MR. REAMER: I was just suggesting it, that vital 19 modified equipment 20 CHAIRMAN HENDRIE: Certain plant and vital equipment?
21 MR. REAMER: Well, plant equipment vital to ---
22 MR. SHAPAR: Well, you don't need plant again because 23 production and utilization facilities comes later. So you 24 can come right out and say vital equipment.
25 COMMISSIONER BRADFORD: Bill's point is that it should
47 1
be vital to safety.
2 CHAIRMAN HENDRIE: Yes, locations:of certain 3
plant equipment vital to safety in or of -- in, okay?
4 More better?
5 COMMISSIONER KENNEDY: That's all right with me.
6 CHAIRMAN HENDRIE: Have you got any language for 7
the studies to get them to NRC, NRC contractors, licensees, 8
applicants and their contractors. I don't think we need to 9
add more specific language for that.
10 COMMISSIONER BRADFORD: You may want to authorize 11 somebody to pull the shoe laces a little on that.
12 COMMISSIONER KENNEDY: What?
13 COMMISSIONER BRADFORD: Pull the shoe laces a little 14 tight on this action. There were a lot of comments 15 CHAIRMAN HENDRIE: Yes, I totally agree.
16 Okay, you are not constrained from improvement of 17 triple (i).
18 MR. SHAPAR: Okay.
19 CHAIRMAN HENDRIE: I detect a certain hint that you 20 are admonished to improve triple (i).
21 MR. SHAPAR: Yes, I detected such.
22 CHAIRMAN HENDRIE: Now, having stuck this elaboration 23 in to triple (i) and having limited two to the NRC down 24 below so the regulators in the industry group rather than all 25 the world in two, can I do without "substantially facilitating"?
48 1 COMMISSIONER GILINSKY: Well, I would put it in.
2 COMMISSIONER KENNEDY: It is a term of art without 3 buying a step in the eye of the beholder.
4 CHAIRMAN HENDRIE: I am concerned about staff ending 5 up interpreting it to mean or somebody interpreting it to mean 6 that that means you have to prove that a theft would occur or 7 a diversion would occur~ or a sabotage would occur or something 8 like that.
9 MR. MCCORKLE: It is a very difficult word to live 10 with.
11 COMMISSIONER KENNEDY: It is the kind of word we don't like using from a regulatory point of view, it is just 12 not definable.
13 COMMISSIONER GILINSKY: Well, what's facilitate?
14 CHAIRMAN HENDRIE: If you leave it without a 15 modifier you run sort of the recip~ocal arguement,w:p.i.ch is 16 to facilitate means anything which gives a perceptible increase 17 and the likelihood it will happen without regard to how 18 small that might be.
19 COMMISSIONER GILINSKY: Facilitating means to make 20 e-asier and substantially facilitating means to make it much 21 easier.
22 CHAIRMAN HENDRIE: Too much easier?
23 COMMISSIONER BRADFORD: What you are really after 24 is some increase an.d the effect on public heal th and safety.
25
49 1 And that's where significant pick you up. The reason I'm 2 probably comfortable in doing without substantially is, 3 first of all, I have no more idea than anyone else what 4 the difference between facilitate and substantially facilitate 5 is, but secondly, as long as you have this second yardstick 6 about a significant adverse effect, it seems to me you are 7 picking up pretty much the same thing, that is, a trivial 8 increase in the facilitating, presumably doesn't add up to 9 a significant adverse effect on the public.
10 COMMISSIONER GILINSKY: You are saying it would be 11 redundant?
12 CHAIRMAN HENDRIE: Yes, I see ---
13 COMMISSIONER GILINSKY: Is that what you are saying?
14 COMMISSIONER BRADFORD: Well, that you get at the 15 concern with significant and by putting the word substantially 16 in you complicate the lives of the people who have to live 17 with it. It isn't strictly that it is redundant.so much that 18 it is ill-defined-and if you can live without it, why introduce j
19 one more element of ill definition.
COMMISSIONER GILINSKY: Well, I think they are 20 somewhat different though. A significant adverse effect 21 would flow from some events which was caused in part by someone 22 having access to some kind of information, so it is the 23 significance *of *-the. ;.ev.erits., I thiI}k. I suppose you could 24 cause a melt down possibly by getting or conceivably by getting 25
50 1
information you might normally think is all that significant.
2 It wouldn't make all that much difference compared to what is 3
already out in the public sector.
4 COMMISSIONER KENNEDY: Would you say that again?
5 COMMISSIONER GILINSKY: Yes, that's not very clear.
6 A significant adverse effect does not seem to me, to 7
get at the incremental difference between that information 8
being in the public sector and not being in the public sector, 9
and I think there ought to be a threshold there that you have 10 to cross before you withhold inform~tion.
11 In other words, the information ought to make some 12 substantial difference to someone.
13 CHAIRMAN HENDRIE: Yes. Has anybody got ---
14 COMMISSIONER KENNEDY: I'm misunderstanding, because 15 I thought that is what the significant adverse effect is about.
16 CHAIRMAN HENDRIE: It depends on whether you want 17 to read the effect independent of the sabotage or not.
18 You and Peter are reading it, and I can see your 19 reading of it that a significant adverse effect can flow 20 either from an effect which has high consequence -- or from 21 an act which has high consequences or from an increasing 22 likelihood of that or other acts.
23 COMMISSIONER KENNEDY: Yes.
24 CHAIRI"'.lAN HENDRIE: Vic's reading it in the sense that 25 you either facilitate sabotage or you don't and then you have
51
- 1 some effect over here, some act of sabotage would have 2
trivial effects and those aren't of interest here. The ones 3
that have 4
COMMISSIONER KENNEDY: Even if they -- the possibility 5
of their occurring wasn't in fact aided, i t wouldn't make any 6
difference.
7 CHAIRMAN HENDRIE: Yes. So what Vic's looking for 8
is: a. you don't want to protect information if the only 9 effect -- even if the sabotage occurs is trivial.
10 COMMISSIONER GILINSKY: Well, that's significant 11 adverse effect.
12 CHAIRMAN HENDRIE: Right, but you also want to say, 13 and furthermore, I don't want to protect information unless 14 it significantly improves the chance of sabotage ---
15 COMMISSIONER GILINSKY: Which are otherwise available 16 in a different context or part of the book or whatever.
17 CHAIRMAN HENDRIE: Yes. So I can see reading it 18 both ways.
19 Can you think of a word that ---
20 COMMISSIONER GILINSKY: You don't necessarily need 21 it there if you can get that thought in ---
22 COMMISSIONER KENNEDY: But isn't that what is facilitating 23 port...,o;f
- the.;art'?-:~.*- I would go back there to Peter's earlier 24 argument, because to facilitate is to facilitate.
25 MR. REAMER: You could move significant down to
52 1
substantially -- replace substantially with the concept that 2
is embodied in significant up in adverse effect or you could 3
insert something like materially facilitate in there.
4 COMMISSIONER KENNEDY: How does that differ from 5
substantially?
6 MR. REAMER: Well, I think in terms of material versus 7
immaterial, it is either material or immaterial. If it is 8 imrtlaterial it is very small, very tiny.
9 COMMISSIONER KENNEDY: That's the difference between 10 substantial and insubstantial.
11 MR. REAMER: I think so too, I don't have the problems 12 that Dr. Smith has, quite frank, I think that one can explain 13 how one intends to construe this language.
14 COMMISSIONER GILINSKY: In other words, it seems to 15 me one could read this to say anything which would in any 16 way assist anyone in necessitating a high consequence event 17 would be verboten.
18 CHAIRMAN HENDRIE: And we want a higher threshold than 19 that.
20 COMMISSIONER GILINSKY: That's what I think, yes.
21 CHAIRMAN HENDRIE: I will propose the following 22 abrupt reversal in a position in hopes of moving this.
23 My concern with the word substantially and the 24 phrase substantially facilitated is just this concern that was 25 expressed f.rom!NMSS that it sounds to the staff as though that
't 53 1
means that you have got to go and prove that will now occur 2
or something. If we can all understand that substantially 3
facilitating is in the sense of more than immaterially 4 facilitating that is, substantially facilitating doesn't 5 mean that you have got to show that theft and sabotage will 6 occur.
7 COMMISSIONER GILINSKY: Well, do you want to use 8 the words "much easier"? It is not fancy language.
9 CO.MMISSIONER KENNEDY: I must say, there is some 10 virtue in simple ordinary English, indeed i t *is understandable.
11 COMMISSIONER GILINSKY: Just saying, by making 12 theft, diversion or sabotage of such material or such 13 facility much easier.
14 COMMISSIONER KENNEDY: If that's what we mean, it woul 15 be nice to say it 6 however unusua1_,.,.:,-_,_._
16 CHAIRMAN HENDRIE: But it has got such a splendid 17 legislative ring to it up to this point i t would be out of 18 character to say make it easier.
19 COMMISSIONER KENNEDY: It would certainly be a welcome 20 concession to the Presidents oft required improvement in the 21 use of the language. I like that.
22 CHAIRMAN HENDRIE: Let's see. Materially, appreciably 23 substantially--~
24 COMMISSIONER KENNEDY: Why don't you just say, "and 25 make much easier."
54 1 11 MR. SHAPAR: How about help lots'.'.
2, COMMISSIONER KENNEDY: That's not very good English.
3 And from you, I can hardly believe it.
4 CHAIRMAN HENDRIE: How does materially strike you?
5 MR. MCCORKLE: I guess it gets back to a problem.
6 There was an addendum attempting to explain~ I believe, what 7
you could and could not withhold in version C, and I was a 8
little disturbed, or most of us were with where the distinction 9 should be made between something that would perhaps give a little 10 bit of advantage to an adversary. Well, if we had to release 11 each little bit, pretty soon we would have an accumulative 12 amount that is substantial. And I don't know what the word 13 materially means any more than substantially from a practical 14 standpoint, do you?
15 MR. CASE: It seems less than substantial to me.
16 MR. SHAPAR: They are used in a lot of places 17 *interchangeably.
18 COMMISSIONER GILINSKY: I think there would be a 19 different standard for something like security measures or 20 security plans as opposed to say location of plant equipment.
21 So security measures would easily pass that sort of a test.
22 So I don't see any great problem there, but* if they are 23 talking about plant equipment layouts and so on, I think you 24 do want to provide material alternatives.
25 CHAIRMAN HENDRIE: All right, let me go away from this
55 1
one for the moment.
2 I don't know whether there is a way to reword 3
those three or four lines in there to bring.the significant 4 adverse effect, the facilitating, the substantial or not 5 together in a way that provides a reasonable threshold without 6 coming to this particular difference on the specific word, 7 or can you think of a really fancy, ingenuous ending.
8 COMMISSIONER GILINSKY: Let's see, when you identify 9 the classification categories, confidential, secret, top secret 10 they use to have an adjective that di~closuFe*Eo_e,this~_,inf0rmation 11 wo~ld effect the national security and there was an adjective, 12 a little bit, a lot.
13 MR. REAMER: Yes, cause harm 14 CHAIRMAN HENDRIE: Good, better, best is the way 15 Sears Roebuck use to go by.
16 COMMISSIONER GILINSKY: Well, I would think you would 17 want one of those adjectives.
18 CHAIRMAN HENDRIE: Do you recall any of those?
19 Let me turn from this point for the moment and see 20 how we stand on the clearance portions of the whole document.
21 Now, there are clearances in here in two places.
22 One of them is authority to require clearances for access to 23 security plan, information and that is up in the new section 147.
24 The second piece of clearance authority is .for access to faciliti s 25 and that's back in additional language in 161. I felt that both L -- ----
56 1
elements were of importance to have in this proposed legislation, 2
but let me -- there has been discussion about it, let's see if 3
can get some opinions up and down the table. on that and then 4
we can come back to substantially.
5 COMMISSIONER GILINSKY: Where is this now?
6 CHAIRMAN HENDRIE: Okay, bottom of Page 2, section 147 7 there at B, the Commission is authorized to prescribe regulations 8 or orders to assure that information which is protected from 9 unauthorized disclosure is disclosed only to persons whose 10 character, et cetera, et cetera, shall have been investigated 11 under standards and specifications -- the standard language.
12 Part B of 147 does that and that is the clearance program for 13 access to security plan information.
14 MR. SHAPAR: Which dovetails with existing authority 15 for access -- clearance for people with access to materials.
16 CHAIRMAN HENDRIE: Yes.
17 COMMISSIONER GILINSKY: Well, I guess I would not at 18 this point move to the clearance program to do that.
19 CHAIRMAN HENDRIE: Peter, you were thinking about it.
20 COMMISSIONER BRADFORD: Well, I have a similar 21 difficulty at least with the clearance program that would 22 go beyond the scope that we contemplated.
23 I am not entirely sure that I could state it accurately 24 myself. In fact, I would want to seek Howard's advice.
25 MR. SHAPAR: I was looking around, for someone too.
57 1
COMMISSIONER BRADFORD: I think if one started with 2
vital areas of NMSS you wouldn't be far off.
3 MR. SHAPAR: What is the present .scope of the 4 clearance rule, do you recall?
5 MR. PARLER: It is based wholly on common defense 6 and security grounds, the present rule, and the present law 7 does not specifically refer to sabotage.
8 The proposed rule, however, relies not only on the 9 explicit language in the statute which talks about common 10 defense and security, but also on public health and safety 11 grounds, which is reflected in the legislative history of the 12 1974 amendment to section 161.
13 MR. SHAPAR: That covers SNM and what else?
15 COMMISSIONER GILINSKY: Does that proposed rule cover 16 both reactors and fuel cycle facilities?
17 MR. SHAPAR: It covers both.
18 COMMISSIONER GILINSKY: So you regard the statute as 19 giving us authority to require clearances for persons working 20 in reactors?
21 MR. SHAPAR: Yes.
22 MR. CASE: If they have access to the special material.
23 CHAIRMAN HENDRIE: But that authority relates back 24 to the access to the*~_spedial nuclear material provision which 25 has been in the act for a long time and as you recall the
58 1
discussions over it~
2 MR. SHAPAR: Yes. I should also point out though ---
3 COMMISSIONER GILINSKY: I am not as enthusiastic about 4
that proposal.
5 MR. SHAPAR: I should point out for completness that 6
Peter Strass felt less secure'about that copclusion than I did.
7 COMMISSIONER KENNEDY: Considerably less secure.
8 MR. SHAPAR: Substantially rather materially.
9 CHAIRMAN HENDRIE: That's what I was afraid of.
10 MR. SHAPAR: But I think he is willing to go along 11 with it.
12 COMMISSIONER KENNEDY: He was willing to go along with 13 it, and indeed he did, despite his material reservations.
14 CHAIRMAN HENDRIE: There are actually two pieces of 15 additional clearance authority which is sought here.
16 One of them is access to security plans, the other 17 is access to the facilities.
18 COMMISSIONER GILINSKY: Why do we*need more authority 19 there?
20 CHAIRMAN HENDRIE: Well, I was just going to ask you 21 to distinguish between them or is i t 22 MR. SHAPAR: There was some argument about whether or 23 not the act as presently constructed was really good enough, 24 to cleanly get a sabotage ---
25 COMMISSIONER GILINSKY: I think in this case Peter is
59 1
right.
2 CHAIRMAN HENDRIE: The 161 provision in case 3 Peter is right.
4 MR. SHAPAR: Also, i t would be expanded on 161 to 5 get at health and safety as a basis when you consider both 6 sabotage and diversion are involved and assuming you want to 7 g.et-.:.at , ;the:~f.acili ties 0 8 CHAIRMAN HENDRIE: Can we make any decision then 9 between the 161 and the 147 editions on clearance ---
10 COMMISSIONER GILINSKY: I tell you, I think what we 11 really need is an exemption from FOIA and that would solve 12 a lot of our problems. I think uhat's our real problem and 13 we don't have that covered very well as there are some 14 problems about our ability to keep public information in our 15 hands which we obtain from the licensee. And we have the 16 authority on the books to clear persons who have access this, 17 and I think that covers people with safeguards information, but 18 we have discussed that many times and I don't see any ,need 19 to go over that ground. But I am reluctant to extend that 20 authority to reactors at this point.
21 COMMISSIONER KENNEDY: Then how are we going to 22 handle it in the interim, so long as we do not have the 23 exemption from the FOIA?
24 COMMISSIONER GILINSKY: Well, we are handling i t in 25 a fashion now and have been for some time. I think i t is
60 1
desirable to have an exemption and then this would give you 2
one, but I don't think we need to go any further.
3 CHAIRMAN HENDRIE: Dick, how qo you come out on 4
clearances?
5 COMMISSIONER KENNEDY: Well, I am agreeable the 6
sections to that are in this draft.
7 CHAIRMAN HENDRIE: Okay, Peter?
8 COMMISSIONER BRADFORD: Well, again, to the extent 9
it involves in the effect of backstopping the clearance rule 10 proceeding, I think at this point the Commission is committed 11 to that much, but I don't -- this is the point at which I 12 come to the problem that I mentioned earlier in a different 13 context of being unable to explain to the extent that I would 14 be comfortable with Congress why I felt i t was we need to go 15 further.
16 CHAIRMAN HENDRIE: That is the 147, access to 17 information clearance 18 COMMISSIONER BRADFORD: Yes.
19 CHAIRMAN HENDRIE: -- program is the one that bothers 20 you.
21 Let me ask a question Howard. If, 147 B came out of 22 there ---
23 MR. SHAPAR: 147 E?
24 CHAIRMAN HENDRIE: B, there is no E unless you have 25 a new paper. The protection of 147 information would continue
61 1
to be -- would continue, would it not, on the basis of ---
2 MR. SHAPAR: Let me put it this way, if you removed 3
CHAIRMAN HENDRIE: Where do I get.civil penalties and 4
things like that -- Oh, yes. Right above B. Okay.
5 "Any person who violates is subject to civil monetary 6 penalties under Section 234," right?
7 MR. SHAPAR: Yes.
8 COMMISSIONER KENNEDY: That does bring up something 9 which I'd like to question. Are there no c~iminal penalties?
10 MR. SHAPAR: There are none in this statute as it 11 now read~, and it is questionable whether or not the general 12 provisions relating to criminal penalties w9uld apply to this 13 bill. This is one of the questions I flagged for the Commission 14 in an earlier paper saying that the Commission might want to 15 consider criminal penalties and that the draft was being 16 constructed only on the basis of civil monetary penalties.
17 There was never any indication that you wanted to strike out 18 any for any unambiguous authority with respect to assessing 19 criminal penalties here. It would be very ~asy to do if you 20 wanted to do it.-
21 COMMISSIONER KENNEDY: Against who would the civil 22 monetary penalties be levied? Individuals? Institutions with 23 which the individuals are associated? In other words, is it 24 the licensee who is going to be ---
25 MR. SHAPAR: And anybody else who disclosed the
62 1
information who acted contrary to the rule. As you recall, 2
the rule has been broadened to apply not only to the licensees, 3
but to anybody else who might have that information.
4 COMMISSIONER GILINSKY: So a licensee's employee could 5 be punished?
6 MR. SHAPAR: Yes.
7 COMMISSIONER KENNEDY: Yes, as an individual, and 8 am I correct, this is a new departure for the Commission.
9 MR. SHAPAR: Yes. Under existing case law the 10 conventional wisdom*: is that the Commission in exercising its 11 regulatory authority, that authority is restricted to persons 12 that the Commission licenses, and it doesn't have regulatory 13 authority generally speaking, over people it does not license.
14 So one of the reasons for one of the changes here is, again 15 getting back to the discussion that Commissioner Gilinsky 16 mentioned earlier about other people, other than licensees having 17 the information, this statute would make it clear that it 18 applies just not to the licensee. If it didn't do that, then 19 the only people that we could fine or take action against 20 would be the licensee himself.
21 COMMISSIONER KENNEDY: Well, that's a very much 22 broadened authority to the Commission :well, the 23 authority of the Commission extends much further now with this 24 concept than they ever have?
25 MR. SHAPAR: In the limited context of the subject matt r.
63 1 COMMISSIONER KENNEDY: Yes.
2 MR. SHAPAR: I would also add that if you took out 3 you could still protect the information in two ways. Number 4 ne, you could classify it if you wanted to, and number two, 5 ou could require the licensee to protect it and to use only 6 rustworthy people which would mean that presents certain 7 roblems too. You are requiring, in effect, the licensee to 8 un a trustworth~ness program.
9 COMMISSIONER KENNEDY: Not only that, if it is 10 lassified information the people handling i t need to be 11 leared.
12 MR. SHAPAR: Well, I was using that as alternatives.
13 If you classified it, I think I wouldn't do it.
14 CHAIRMAN HENDRIE: The purpose of this legislation in 15 art is to avoid classifying information as national security 16 information. So I certainly wouldn't go that direction.
17 he Commission could very well write rules and implementation of 18 this section which would require licensees not to disclose 19 this information to persons other than regular employees of ood standing and persons whom the licensee has good reason 20 to believe would not disclose and so on and so on.
21 MR. SHAPAR: Right, and at one point you might get 22 to a point where people would reasonably argue that since you 23 don't have authority to run a full government clearance program 24 in the statuteJ you can't do indirectly which you can't do 25
64 1
directly. Now, it is a tricky area.
2 CHAIRMAN HENDRIE: I would think we could require 3 licensees, for instance, to implement ANS~- what is it, 18.7 4 and limit access to the information protected here to, regular 5 employees hired al}d.c._measur.ed<*agains b-,tha t standard.
6 MR. SHAPAR: I think you could too, and that is 7 my opinion. I was merely point out there, crnuld be a counter 8 argument.
9 MR. McCORKLE: Well, Howard, from a practical 10 standpoint, isn't that the trouble with the Privacy Act in 11 complying with that?
12 MR. SHAPAR: It has been a problem.
13 MR. STO.I_BER~ I hate to muddy the waters here, but 14 as an old thing to a lawyer, it seems to me that under Section 15 223 if you have a violation of any of these sections willfully 16 or through conspiracy you automatically--~
17 MR. SHAPAR: There is a problem with that and we 18 have looked in to it. Why don't you menti?n it, Bill?
19 MR. PARLER: The problem with Section 223 language 20 as drafted now is this: Section 223 specifically refers to 21 certain sections of the Act which are willfully violated and 22 it also specifically refers to willful violations of regulations 23 that are issued under certain sections of the Act, namely, 24 Sections 65, 161B and,~1i).
25 The section that we are talking about, Section 147
65 1
would not itself create anything that the violation of the 2
thing in the section would present the problem, what would 3
be violated would be a regulation issued under this authority.
4 CHAIRMAN HENDRIE: I know a way to cure that, I think.
5 MR. SHAPAR: Yes, there is a very easy way of 6
curing it.
7 MR. STOIBER: But you have to read the statute more 8
carefully because it says, "whoever willfully violates, 9 I attempts to violate or conspires -to*.viblate*
- any provision of 10 this act for which no criminal penalty is specifically 11 provided or for any regulation in order to prescribe," so that 12 "or" there makes any violation of the provisions of the act 13 a criminal violation.
14 CHAIRMAN HENDRIE: Furthermore, I point out that 15 a *recent employee of the Commission found a way to deal with 16 this, you could have a provision that says, for the purposes 17 of Section 223 of this Act, any regulations or orders 18 prescribed or issued by the Commission under this section, 19 i.e., 147 shall be deemed to b~~r*acribed!or issued under 20 Section 161B of' the Act.
21 MR. SHAPAR: Which would be completely remove the 22 question.
23 CHAIRMAN HENDRIE: Which would completely remove the 24 question and then make it the criminal sanctions of 223 25 available for the violation. Now, I must say I would rather
66 1
have the whole shebang, but if I could put together three 2
votes in favor of everything here except 147B, why I would like 3
to try to do that and make it the Commi~sion's position and 4 move forward on that basis.
5 What would you think of that? I'm not going to 6 look at you, you are obligated to vote no on it any way.
7 (Indicating to Commissioner Gilinsky.)
8 Would that be acceptable Peter?
9 COMMISSIONER BRADFORD: Yes.
10 COM.MISSIONER KENNEDY: What are we going to eliminate?
11 CHAIRMAN HENDRIE: I make the following proposal then 12 that in the draft paper, 611D, first, that where* in (i), (ii) 13 and (iii) it refers to security measures that there be that 14 phrase, "including security plans procedures and equipment,"
15 to follow it. That in (iii) after "physical protection of" 16 there be, "and. Ioeations* o;f,*cer:tain plant equipment vital 17 to safety in," and then go on to "production and utilization 18 facilities." That in Paragraph 2, immediately following (iii) 19 "the study reports an analyses" language be added to make 20 clear that these are studies, reports and analyses of NRC 21 staff, NRC contractors, licensees of the Commission, applicants 22 for licenses for the Commission or their contractors. Can 23 anybody think of any other?
24 MR. REAMER: Agencies may be useful.
25 MR. SHAPAR: Or we could use a*general phrase like
67 1 licensees and applicants in NRC and persons acting on their 2 behalf or something like that.
3 CHAIRMAN HENDRIE: Right. Now, with regard to each 4 of these additions or corrections that I have made, why 5 perfect the language if you please, as you.have just suggested 6 in the latter case where I didn't have i t that explicit.
7 I'm going to ask that we go without "substantially" 8 down in the threshold paragraph retaining the language, "could 9 have a significant adverse effect to the health and safety of 10 the public and the common defense and security by facilitating 11 theft, diversion or sabotage," et cetera, et cetera.
12 Next, that we strike Bas it stands in Section 147, 13 bottom of Page 2, top of Page 3 and substitute B language for 14 which we are indebted to Senator Glenn and his staff,along 15 the lines, "for purposes of Section 223 of this Act any 16 regulations or orders prescribed or issued by the Commission 17 under this section shall be deemed to be prescribed or issued 18 under Section 161B of this section," i t is down ---
MR. SHAPAR: I've got it.
19 CHAIRMAN HENDRIE: So now we protect this information 20 not on the basis of the clearance program,.but on the basis 21 of civil penalties if you breach it and criminal penalties 22 whether it is willful or whatever.
23 COMMISSIONER KENNEDY: Which does not, of course, 24 protect them from the FOIA, if I am correct, right?
25
68 1
MR. SHAPAR: No, we have got that protected under--
2 the way i t is drafted under A of 147.
3 MR. CASE: How does the hearing situation work?
4 MR. SHAPAR: That's taken care of later under the 5
amendment of 181.
6 CHAIRMAN HENDRIE: Yes. Now all of the rest of 611D 7
I would propose that it just stand as i t is.
8 COMMISSIONER KENNEDY: You mean this Section 2?
9 CHAIRMAN HENDRIE: Section 2, Section 3, Section 4.
10 Okay, now what that does is to put the access to 11 facility clearance for health and safety reasons, Peter, in to 12 161 with the buttressing of the authority, for instance, for 13 ~ulefnak::j;:hg .,cue =c ,:, , *, *
- 14 COMMISSIONER GILINS*KY: Okay, what are the extra words 15 there?
16 CHAIRMAN HENDRIE: The extra words ---
17 MR. SHAPAR: The only change at 161 (i) was just 18 the deletion of the phrase, "and licensed by the Commission"~
19 CHAIRMAN HENDRIE: No, no.
20 The additions to 161 are like this; Vic. You put in --
21 this is a complete text of the same thing, I think, and what has 22 been put in is to insert ---
23 MR. REAMER: Insert sabotage, extend the materials 24 covered source ---
25 COMMISSIONER KENNEDY: Where?
69 1 MR. REAMER: Section 2, 161(i).
2 COMMISSIONER KENNEDY: Yes, and where do you put 3 that?
4 MR. REAMER: In the first line. ,
5 COMMISSIONER KENNEDY: "regarding its loss, diversion, 6 or sabotage,"?
7 MR. SHAPAR: Yes.
8 CHAIRMAN HENDRIE: The present l9l(i) doesn't talk 9 about facilities or sabotage. So where you see things like 10 sabotage and facilities, that's the kind of thing that~is 11 going in, and it goes in there, "utilization,-:___ production 12 facility;" and the heal th and safety also goes in because it 13 is strictly a national security thing.
14 COMMISSIONER KENNEDY: Could I just note that I think 15
- the utilization facilities and production facilities must be 16 quite a site when they are in transit.
17 MR. SHAPAR: You haven't heard about the AMP program 18 at Idaho and ---
19 COMMISSIONER KENNEDY: Yes, I have, but I don't think 20 that was intend~d here.
21 CHAIRMAN HENDRIE: If offshore ever gets one on a 22 barge, why, Vic, we will have to go down and ~atch it floating 23 out the inlets into 24 MR. SHAPAR: We look forward to all contingencies.
25 COMMISSIONER KENNEDY: Meanwhile back in the real
70 1 world, I think the phrase is in the wrong place in the 2 sentence.
3 CHAIRMAN HENDRIE: And then -- so typically, sabotage 4 and health and safety are the additions of 16l(i) which cures 5 the Strass 6 MR. REAJYIER: That would be cured .in 2 (i). One (i) is 7 general rulemaking authority to impose safeguards requirements 8 involving materials against certain threats. Two (i) deals 9 specifically with the clearance program.
10 CHAIRMAN HENDRIE: Yes, ---
11 COMMISSIONER KENNEDY: The second point -- I'm sorry.
12 MR. REAMER: Two (i) deals specifically with the 13 clearance program extending it to explicitly cover sabotage, 14 other materials other than special nuclear material on the 15 basis of both common defense and:.securi ty and public heal th 16 and safety.
17 CHAIRMAN HENDRIE: Okay. Do we have an understanding?
18 Or do we understand what's proposed, let me ask that first.
19 (No response) 20 Does the B paper have a comparative text of the 21 proposed and original 161?
22 MR. SHAPAR: Yes, it does.
23 COMMISSIONER KENNEDY: It is the D paper, appendix B or 24 attachment B.
25 CHAIRMAN HENDRIE: No, that's comparative text from B
71 1 to C.
2 MR. SHAPAR:- You are asking about 77.611B, right?
3 The B version of the legislation?
4 C.HAIRMAN HENDRIE: Yes. Does that have a narrative 5 of 161 against --- Here's a better one, Vic.
6 COMMISSIONER GILINSKY: Well, I ~ould not care one 7 way or the other.
8 CHAIRMAN HENDRIE: Is the proposal to change clear, 9 Peter?
10 COMMISSIONER BRADFORD: Yes, the only point here that 11 as to (ii) to the extent that it-- I'm familiar with the 12 general rule, but to the extent the source material and 13 byproduct material may not be within the clearance rule, I 14 would have some difficulty explaining why that authority were 15 necessary. I'm not saying at this point that I oppose to 16 having i t in here, I am saying that if i t were out so that 17 we would have reason to believe that we need security clearances 18 for people having access to source material, I would have to 19 say I don't have much evidence of that.
20 COMMISSIONER GILINSKY: Why don't you drop it?
21 CHAIRMAN HENDRIE: Well, there was discussion of 22 dropping i t in 147, but leaving i t in here.
23 MR. REAMER: The,current clearance rulemaking is tied 24 to access to special nuclear material.
25 MR. SHAPAR: Because that's the way the statute now
72 1
reads.
2 CHAIRMAN HENDRIE: Yes.
3 MR. REAMER: So I couldn't see any circumstances 4
that i t would be construed to source material. It indirectly 5 applies to byproduct material and the two * *i go,,. together.
6 CHAIID!iAN HENDRIE: Did we contemplate the spent fuel 7 would come under the special nuclear material umbrella?
8 MR. REAMER: I would like the opportunity to check 9 that, *but I believe that we did, spent fuel in transit or 10 in storage.
11 MR. SHAPAR: Spent fuel is generally regarded for 12 the purpose of our rules as SNM, although it does contain others 13 too.
14 CHAIRMAN HENDRIE: How about separated waste and so 15 on, then it becomes a byproduct.
16 Is i t a concern that would 17 COMMISSIONER BRADFORD: To me, no. If it is a 18 situation in which you asked if I thought it ought to be in 19 there, I'd say no. So I suppose if you are asking me whether 20 it would tip me.to vote against the whole proposition, the 21 answer to that is no. Whether I personally think it ought 22 to be in there, I would drop source material in that particular 23 instance, in (ii).
24 MR. REAMER: But not in (i)?
25 COMMISSIONER BRADFORD: Yes.
73 1
CHAIRMAN HENDRIE: I see. The other place it 2 appeared was in 147.
3 COMMISSIONER GILINSKY: What are:we talking about ther?
4 CHAIRMAN HENDRIE: Do you know whether DOE would 'have 5 any problem with that*if we dropped source material?
6 MR. SHAPAR: The only place that.they are concerned 7 about is 161(i)l and that is the one part that we have been 8 discussing. It provides authority for both DOE and NRC.
9 CHAIRMAN HENDRIE: And that one, you said you would 10 leave in any case.
11 COMMISSIONER BRADEORD: (Nods in the affirmative.)
12 COMMISSIONER KENNEDY: 161(i)l?
13 MR. SHAPAR: Just (i).
14 COMMISSIONER GILINSKY: Does it now have source 15 material?
16 MR. SHAPAR: No, it does not.
17 COMMISSIONER KENNEDY: No, i t does not. That's 18 correct.
19 MR. SHAPAR: The only section that I know of that 20 has given DOE concern was the initial part of 161(i) and the 21 concern they had was the phrase, "and licensed facilities."
22 So I can't think of anything that you are doing here that 23 would concern DOE as long as that phrase is taken out.
24 CHAIR1"1AN HENDRIE: Yes, and which it is sticken.
25 MR. SHAPAR: And license facilities or licensed by
74 1
the NRC, something like that.
2 COMMISSIONER GILINSKY: Now, wait a minute. Does 3
that mean have -- it is clear that we only.have authority over 4 our licensees?
5 COMMISSIONER KENNEDY: It should be.
6 COMMISSIONER BRADFORD: Are you asking what DOE 7 was concerned about?
8 CHAIRMAN HENDRIE: No, we have control over our 9 licensees and those other activities assigned to us by the 10 Energy Reorganization Act and the nature of the changes here 11 as 161(i) exists now, and it has that same sort of language in 12 it, and both we and DOE operate on this authority and there 13 isn't a problem with whatever that means that we regulate 14 over their things or whatever, and there isn't any more or 15 less of that problem. I don't think it is a problem.
16 Now, do you have a problem with deleting source 17 material?
18 COMMISSIONER KENNEDY: Yes.
19 CHAIRMAN:.~ HENDRIE: You would like to keep source 20 material -- if it doesn't tip may we leave it?
21 COMMISSIONER BRADFORD: Yes. As a practical matter 22 I would say you ought to require clearances for truck drivers 23 with source material trucks is pretty far away.
24 CHAIRMAN HENDRIE: I don't know, if you talk to 25 Congressman Worth about that yeilow cake incident, why
75 1
COMMISSIONER BRADFORD: Well, he might want to require 2 a divers license.
3 (Laughter) 4 CHAIRMAN HENDRIE: Yes, what was it?
5 MR. SHAPAR: Boogieing down the road.
6 CHAIRMAN HENDRIE: Okay with soµrce material in and 7 with the changes I proposed, do we understand the proposition?
8 MR. SHAPAR: Source material in in all places?
9 CHAIRMAN HENDRIE: Yes, including 147.
10 I assume, Vic, that your agreement with this could 11 only go as far as 147?
12 COMMISSIONER GILINSKY: Section one here, would that 13 apply to clearances?
14 15 16 17 18 19 20 21 22 23 24 25
76 1
1 2
3 4
5 everybody-on-board vote?
6 (No comment) 7 Good, let me ask it then.
8 COMMISSIONER GILINSKY: You are taking source 9 I material out of that one too? I 10 CHAIRMAN HENDRIE: I No, sir, I haven't I left i t in.
I 11 COMMISSIONER GILINSKY: Well, I *ould take it out.
12 Why don't you just go ahead, I'll write my1own.
I I
13 CHAIRMAN HENDRIE: Okay, can I pull you along, I
14 Peter; and get three votes for 147?
15 COMMISSIONER KENNEDY: How do y.oq. know you have 16 got mine. I 17 CHAIRMAN HENDRIE: I'm going to ask that in a minute.
18 I'm savingC~b:U for a reserve.
19 COMMISSIONER KENNEDY: You had better count for two.
20 COMMISSIONER BRADFORD: You are a it hhis point 21 leaving ~-substantially out the facility? I 22 CHAIRMAN HENDRIE: Yes.
23 COMMISSIONER BRADFORD: And there. mc1y be:-: some way 24 to make everyone happier with that section,! but I can live i
25 with i t with the word substantially out.
2 77 1
COMMISSIONER KENNEDY: What is i t that you want to I
2 do with the substantia.lly.?.c_:_,_Do'iyou want to i find some other 3
word? I 4 I CHAIRMAN HENDRIE: Well, if there were a way to i
5 I rephrase that sentence in the threshold paragraph to gather 6 the significant.~and the substantially together in one place 7 and provide a threshold that didn't seem t6 give the staff I
I 8 a )problem on w.hat:,.I see as the proof standards, why I would I
9 be glad to consider it.
I 10 However, Peter is willing to go*tithout the I
11 substantially if nothing particularly attractive shows up 12 by the language perfecters, who would be al combination, I I
13 would'..assume of Howard's office and OGC.
14 COMMISSIONER BRADFORD: Let me j~st ask one of the I
I 15 possibilities that you consider, and that's unless you can I
. I 16 come to i t right now, just running from th~ word "could" down 17 t o th e secon d cause 1 . . l'k' an d say someth 1ng 1 e II cou ld" an d I I
18 don't really care whether i t is significantly or substantially, I
19 increase the possibility of theft, diversitn or sabotage.
20 Drop everything about the significant adverse effect against I
I 21 the common defense of security you would o,ly have to make the 22 measurement once.
23 MR. SHAPAR: How would that read again?
I 24 COMMISSIONER BRADFORD: Significantly or 25 substantially orcsome,:'other word, increaselthe possibility
78 3
1 of theft, diversion of sabotage of such material at such 2
facilities.
3 MR. REAMER: So there would be three changes.
4 Deletion of have a significant adverse,,affect on health 5
and safety of the public in the common defense and security 6
by -- is that right?
7 COMMISSIONER BRADFORD: Yes, by facilitate.
8 MR. REAMER: Yes, and you replace facilitate with 9
increase the possibility of and you would use either 10 significantly or substantially ~o modify-~-
11 COMMISSIONER BRADFORD: Or some other adverb.
12 MR. SHAPAR: I think it has promise, why don't we 13 see if we can draft something along those lines.
14 COMMISSIONER KENNEDY: And then let's see what 15 the effect of leaving out reference to the public health and 16 safety in the common defense of security 17 COMMISSIONER BRADFORD: That's in two lines above 18 was why I was going to drop it.
19 CHAIRMAN HENDRIE: It does appear above and that's 20 a help in terms of 21 COMMISSIONER KENNEDY: Currently there are two 22 determinations to be made. We are now ordering that only 23 one determination should be made for this language, and I guess 24 I want to know what the impact of that is.
25 Without .- making a health and safety of common,
79 4
1 defense and security determination any more with that language.
2 MR. SHAPAR: Of course, it does state in the earlier 3
sentence of what the objectives 4
COMMISSIONER KENNEDY: Yes, I know, but stating 5
the objective is one thing. Requiring a determination on the 6
part.*of.the staff or the Commission is quite another thing.
7 MR. SHAPAR: I think it is a reasonable argument, 8
but the only basis in which we regulate is common defense of 9
security-and health and safety. We stated those as the 10 objectives. The ~epetitionof it later on was more in the 11 category of crossing the i's and dotting the t's, although 12 i t made i t clearer.
13 CHAIRMAN HENDRIE: Think some about that. I know 14 what Dick is getting at. There may be a difference in the 15 thrust of a finding that is made with and without that 16 reiteration of the health and safety clause, but let us 17 regard that as a possible language variation to be considered.
18 With that understanding, do you suppose I now --
19 can I ---
20 COMMISSIONER KENNEDY: Not until I see it.
21 CHAIRMAN HENDRIE: Can't we vote agreement in 22 principle with the changes?
23 COMMISSIONER KENNEDY: We haven't decided what 24 the principle is in that regard, and I think that was one of 25 the main issues of discussion all afternoon. Until we have
80 5
1 some idea of what that is, I don't think we have reached 2
an agreement in principle. At least that's my view. So 3
therefore, I'm not voting.at this point.
4 CHAIRMAN HENDRIE: Well, that washes out the effort.
5 Sandy, I guess you had better tell them down there there 6
won't be anything forthcoming from the Commission in the 7
near future.
8 COMMISSIONER KENNEDY: There is no reason in the 9
world why we couldn't. How long is it goi~g to take them to 10 draft?
11 CHAIRMAN HENDRIE: It will be three weeks before 12 this Commission can gather again on this in the future.
13 COMMISSIONER KENNEDY: The°Commi~sion is going to 14 be meeting tomorrow, I was told.
15 CHAIRMAN HENDRIE: I didn't expect you to join us.
16 COMMISSIONER KENNEDY: I didn:'.t indicate that I 17 wasn't joining you. I just think this language here ought to 18 be looked at, we ought to know what the impact of it is, we 19 have discussed the subject the whole afternoon.
20 CHAIRMAN HENDRIE: We have a meeting for tomorrow 21 morning scheduled at 9:30, it will run an hour. I don't 22 know whether you can stand another session to follow that one 23 on* this subject or not.
24 COMMISSIONER BRADFORD: I can. Now, we have 25 already, of course~ run through a_licensing. session this
6 81 1
aftet:noon;~~::_lli_,.wonder what you are going to do with that?
2 CHAIRMAN HENDRIE: L .had hoped vlry much to 3 I complete this and was willing to shoot_ thel time in to it, 4 I the licensing session with a considerable testimony session 5
to follow .. i I
6 I COMMISSIONER BRADFORD: I can stand another session 7 I on whichever or both,if you would like, to~orrow. I just i
8 didn't want to raise the second matter als6.
9 I CHAIRMAN HENDRIE: Your time is pretty well run I
10 out this afternoon, is it? .I I
11 COMMISSIONER' BRADFORD: I have s~mebody waiting I
12 I in my office. I could come back but not for too long, to i
13 about 4:30. I I
14 COMMISSIONER GILINSKY: I'm goinJ to have to leave I
15 also.
. . I . .
16 COMMISSIONER KENNEDY: I have another question I I
I 17 would like to get answered before I stop, and that is, what I
18 is the effect of this proposition with wha~ever language on I
19 this other question, what's the total effedt of this on the 20 on-going hearings on ~e clearance rule? I 21 MR. SHAPAR: My view is that thisl doesn't have a I
22 significant effect on the hearing rule. We can make that 1
I 23 clear in,_ ':)?g)?lic'*:1.~-,statements. We are is~uing the hearing I
24 rule under the existing statute. That's cl~ar. If we propose 25 a change in the statute and it is hanging f~re, we can publicly I
I I
i
7 82 I
I i
1 articulate the basis for which we forwarded the legislation I
I
'1 2 to the Congress, an~ although one could dr~w other arguments, 3 maybe contrary arguments, my own personal tiew is that i t should I
4 not have a significant effect. I i
5 COMMISSIONER KENNEDY: But the fact that we ha.ve 6 transmitted to the Congress ,vd:.ews- -as_ }:o cettafn"-c1earahce 1
- 7 procedures, haven't we then in a sense for~closed some I
8 range of option before the Hearing Board ?i 9 MR. SHAPAR: I think you would hive to look at the I
10 particular segment of the bill that you haye in mind, the I
11 basic thrust of the clearance rule is to clear people for
. I access to SNM as to which we have cle.ar aut.hori ty now, and 12 i under the existing statute it would only a~ply to licensees 13 and i t would go no further. S.o I think yoJ have to look at 14 I
individual segments of the bill. My own view is I don't 15 . i believe it has a::..~igriif.icant impinging effJct on the on-going 16 I hearing. \
17 I COMMISSIONER KENNEDY: Do you hale a side view?
18 MR. REAMER: Well, I think i t deRends very much 19 on the way in which it is presented to the Congress.
20 If it is presented to firm what we think is existing 21 authority for what we have on-going, I thijk the impacts are 22 I substantially less to the extent that the p!roposal goes beyond 23 what we are currently doing and we seem to re seeking new 24 authority and express doubts about existing: authority then I 25 II .
think i t could cause a very important probliem.
8 83 1 I am looking at i t soley from thel standpoint of whethe 2 or not what that report is doing right now, is author"ized by I
3 law and what this Commission might do in approaching new I
. I 4 authority that might either cast doubt on -that authority or I
5 not cast doubt. If one were to propose this authority as I
6 confirmatory, I think i t casts less doubt 1-,har:i, qf_~ha:t roles 7 ..or, -app:r:oach-~::yoµ
'_; are going to take in that manner.
. I 8 COMMISSIONER KENNEDY: So you are saying it depends I
9 not upon -- if I understand what you are . s~ying -- you are I
10 saying i t doesn't depend so much on what ttlis actually is, but rather how we portray it, and that I find lsomewhat ---
j 11 12 MR. REAMER: Right.
13 We have to live with the law as
- t i s now. There may I
14 be weaknesses in that law and that's the wJy the situation 15 will remain unless the law is. changed. I_f we go forward with 16 an amendment that expresses doubt about existing authority I
17 in certain areas, expresses a belief that Jbsence of authority on those areas and fail to get it, then ou I argument that 18 7 I
19 existing authority authorizes what that He~ring Board is doing I
20 is less drawn than if we propose legislati4n as the Commission states that we believe that we have the autjhority for what the 21 I I -
Board is now doing; that this legislation ils intended to 22 clarify that authority and not to seek new ~uthority then I 23 I I
think the doubt is less substantial bearin~. But still ---
24 1
COMMISSIONER KENNEDY: But there r[emains doubt?
25 I
I I
\,
9 84 1
MR. REAMER: There remains doubt.. If the Congress 2
does not act and tries to construe that that means, the 3
general rule is when an agency seeks legislation to confirm 4
existing authority and doesn't get it, that does not necessarily 5
mean that the Congress had said you do not.have this authority.
6 It is ambiguous, the Congress in effect may be saying we think 7
you have it under existing authority.
8 COMMISSIONER KENNEDY: And therefore you don't need 9
any clarification.
10 MR. REAMER: It is very much the way the Commission 11 casts its own view of its: 'existing authori t.Y.
12 COMMISSIONER KENNEDY: So what is.equally important 13 as to the draft which goes forward is the statement that would 14 accompany it.
15 MR. REAMER: Yes, sir. In my view it is.
16 COMMISSIONER KENNEDY: And has that been prepared?
17 MR. REAMER: I don't believe that:'.it*has.
18 COMMISSIONER KENNEDY: Okay.
19 MR. REAMER: Although one could certainly pose the 20 question, what *is.the view of this Commission on its existing 21 authority and what is the view cif.the Commission on the 22 objective of this proposal. And if there is a consensus that 23 that objective is to confirm, then the writing of that 24 position is not a substantial problem.
25 COMMISSIONER KENNEDY: Those are questions that ought
l 10 85
- 1 to be answered too, you are saying, before anything is 1
2 submitted. i I
3 r MR. REAMER: It would be good to/answer them.
I 4
CHAIRMAN HENDRIE: Well, i t is c.:J_ear that this i
5 package does several things as part of its/terms, but it 6 I also adds authori.t:y, the whole section 14 7 I is clear I
I 7 addition. There is a piece of the 161 chaige which we I
8 regard as confirming and clarifying existi*g authority and 9 there are other parts of 161 regarding. i .
extension.
I 10 MR. SHAPAR: But I think Mr. Ken~edy's question I
11 was asked in the context of what effect itlwould have on the I
12 I
- on-going hearing on the clearance rule. My answer remains
. I * .
13 .the same, very little as a reasonable practicality.
I .
14 CHAIRMAN HENDRIE: Tomorrow morning what shall we 15 do. Can you stand a meeting at about 11:0~ to 12~00?
I 16 COMMISSIONER GILINSKY: I think. I' 17 COMMISSIONER BRADFORD: (Nods inlthe affir=tivef 18 COMMISSIONER KENNEDY: It is goi~g to have to be I
19 a short one. As far as I'm concerned it will be if I have I
20 seen the language.
21 COMMISSIONER GILINSKY: What is the problem here, I
22 is i t the changing the adverse effects or 1 I
23 COMMISSIONER KENNEDY: It is the1center part 24 surrounding the question of s~bstantially.l We had an hour 25 and twenty minute discussion on substantia,ly, materiality and I
I i
I I
I I
11 86 1 so on_,;,.._ I I
I 2 COMMISSIONER GILINSKY: And Howard is going to 3 write another draft? i I
4 I MR. SHAPAR: We are going to approach trying to I
I 5 carry forward an idea that Commissioner Br~dford suggested.
I .
6 COMMISSIONER KENNEDY: Which would I .
be deleting a 7 whole piece of that and I wanted to be surJ of two things:
I I .
8 One, what i t looks like after we!do it; and two, I
9 what the effect is of eliminating the refetence to the determination that the public health and safety I and common 10 11 defense and security are affected~.
12 COMMISSIONER BRADFORD: I need t6 go for a while, I
13 I will need some time, but the other pointiand perhaps I I
I I
14 explained it, I hadn't intended -- as I indicated before, I I
i 15 could live with the:'.language as you propos~d it. I threw that 16 other out just because the~~~were~stiili~~-Jeneral dissatisfactio
- I 17 I thought that might help. If there is some way of agreeing I
I 18 on the language as it is at a minimum, unless people uncover 19 a better alternative, I would be certainly lbe wi1ling to leave 20 i t as is. I I
21 COMMISSIONER KENNEDY: Whether itl says substantially I
or not. 1 22 I
23 COMMISSIONER BRADFORD: If IJunderstood what Joe_
24 proposed, it did not, but it does say sign~ficant adverse I
effect three lines above.
25
87 12 1
COMMISSIONER KENNEDY: Yes, the way it was proposed 2
in the draft. Well, if we,_.are::not:*g9ing to.reexamine*that, 3
then I would go along with it.
4 CHAIRMAN HENDRIE: Can you live with that?
5 COMMISSIONER BRADFORD: I can live with it, I was 6
suggesting that it might be worth the effort to circulate 7
the other ideas.
8 COMMISSIONER KENNEDY: I can live with it too, but 9
I don't want to vote for something I don't even know what it 10 is or what its effect is until we look at it.
11 COMMISSIONER BRADFORD: Well, let's agree to live with 12 that, or at least I guess the three of us can live with that, 13 but go ahead and circulate whatever better language occurs to 14 you and we can ---
15 COMMISSIONER KENNEDY: Together with an estimate of 16 what the effect is of leaving out the determination, the 17 determination which is rather typical throughout all our 18 statute. What, the determination that we are usually called 19 upon to make is that it is in the public interest, public 20 health and safety will be protected and the common defense 21 and security and we are leaving that determination out now.
22 Whether that has any affect.
23 MR. SHAPAR: Leaving out the specific reference in 24 the determination1;to health and safety,and common defense and 25 security.
88 1 COMMISSIONER KENNEDY: Yes.
2 CHAIRMAN HENDRIE: But the proposition would be to 3 agree that failing agreement on some alternate language 4 that;.the present language would stand?
5 COMMISSIONER BRADFORD: Yes, to yes.
6 COMMISSIONER KENNEDY: And then how is this going 7 to be put forward, and what manner of statement will be made 8 .on behalf of ,rthe Commission as it. is:: forwarded, and who* is 9
- going to write Ehat?
10 CHAIRMAN HENDRIE: There will be a draft letter 11 which I would ask again, the combined legal talents of the 12 agency to produce forthwith.
13 COMMISSIONER KENNEDY: Am I correct, Bill, in going 14 back to what you said there are a couple of questions that 15 would be useful to the Commission to answ.er for *you .before 16 d~aftin.g, that, ,:o~:~.am~,I reading something wrong?
17 MR. REAMER: I don't think I have a question, that 18 it was your intention that it be embodied in 161(i)l(ii) 19 dealing with security ~learances for access to material or 20 facilities. The intention underlying that and the objective 21 is to confirm the authority underlying the current clearance rulemaking.
22 23 COMMISSIONER KENNEDY: Right. That*is what we would say. Is that correct?
24 MR. SHAPAR: I think so.
25
14 89 1
COMMISSIONER KENNEDY: We are simply asserting 2
that that is our understanding of our present authorities 3
and all this is is a clarification, not an.extension. Is 4
that correct?
5 COMMISSIONER BRADFORD: As to that section?
6 COMMISSIONER KENNEDY: Yes.
7 MR. SHAPAR: Well, it doesn't pick up the other 8
materials, does it not?
9 CHAIRMAN HENDRIE: You have to accept the other 10 materials, so there is an extension in this.
11 MR. SHAPAR: But that should not create a problem 12 for the hearing.
13 COMMISSIONER KENNEDY: That does:not apply to or 14 affect the rulemaking.
15 CHAIRMAN HENDRIE: That's correct.
16 The language here as it applies to the rulemaking 17 is by way of confirmation and clarification of what we believe 18 the Commission's authority to be in that area, that area being 19 specifically a rulemaking area. Now, the .. legislAtive~proposal 20 goes on and asks for extensions of the Commission's authority 21 in several areas, back in that same section there is an 22 extension, now we have got other materials in the language now 23 and so on.
24 Now, when I started out I thought maybe I was going 25 to get Commissioner Gilinsky on board for 147, but I wasn't
15 90 1
successful there. Let me ask for a vote on 147 with the 2
changes as proposed. I don't want to reiterate them. There 3
was the thing I previously ran through and*then the subsequent 4
agreement on the threshold sentence ---
5 COMMISSIONER KENNEDY: And with B deleted.
6 CHAIRMAN HENDRIE: And with B deleted as it was 7
in the paper and the substitute B which confirms the criminal 8 sanctions ---**'"
9 COMMISSIONER KENNEDY: Yes.
10 CHAIRMAN HENDRIE: :-"--:.for breach of information.
11 MR. SHAPAR: Though it may not gq precisely there.
12 CHAIRMAN HENDRIE: All right, let me not be the ---
13 MR. SHAPAR: Okay.
14 CHAIRMAN HENDRIE: Okay? You may do it some other 15 place.
16 MR. SHAPAR: Right.
17 CHAIR.Ml\.N HENDRIE: Okay, all in favor of that?
18 (A chorus of Ayes) 19 CHAIRMAN HENDRIE: By George, a vote of 4-0 on 20 147. Take back what I said previously.
21 Please go and tell the Senator that the Commission 22 has mandated this thing.
23 Now, with regard to the balance of the paper, 24 specifically the sections on 16l(i) on 181 and on 274(m) and 25 whatever you do about this 233 criminal thing, may I ask for
91 1 a vote on those as proposed here?
2 COMMISSIONER KENNEDY: With the modest revision of 3 the present strange language on Page 3 that perhaps the 4 production facilities are not being transit on a regular 5 basis.
6 MR. SHAPAR: R.ighto:
7 CHA.IRMAN HENDRIE: All right. This is the stuff 8 with the clearance business in it now, so you are going 9 to vote no, Vic, and Peter, are you going to ---
10 COMMISSIONER BRADFORD: I will give you one finger.
11 CHAIRMAN HENDRIE: A one-finger vote, by George, 12 if I can get a finger in, why that's it, 3-1 on the balance 13 of it.
14 COMMISSIONER BRADFORD: You can have all the fingers 15 when you pick up the source material.
16 CHAIRMAN HENDRIE: You stili want to do that.
17 I'd better not disturb the balance, I've got a vote. So 18 ordered, okay.
19 Now, do you know what you have got to do?
MR. SHAPAR: Yes.
20 21 COMMISSIONER KENNEDY: Let there be no misunderstandin in the source material. I agree with you that this is not 22 a problem we are dealing with today, but neither do I think 23 any of the problems that we are dealing with today are going 24 to be gone tomorrow and I don't know what the meeting is 25
92 17 1
going to be tomorrow, but I think we ought to be at least 2 i in a position to deal with them rather than have to go up I
3 and explain why we can't. That's my reasobing.
. I 4
CHAIRMAN HENDRIE: Okay, now you know Yes, a 5
guestion?
6 MR. SHAPAR: One question. Do y0u still want to 7 I see the alternate language with respect toll substantial or 8
not, I'm not clear on that point.
9 I CHAIRMAN HENDRIE: Yes. If it l0oks good and we I
I 10 can agree on it, the three of us -- the fo~r of us now --
11 if we can agree on it we will substitute ii. If we can't I
12 agree on it, the as-written will st~_n.d--.
13 i MR. SHAPAR: All right.
14 I CHAIRMAN HENDRIE: But I think it woµld be useful 15 to see the thing rewritten with the changel as soon as 16 possible.and we need a draft transmission. i I
17 I *
- MR. SHAPAR: We 11 , t h e usua 1 tra:ro.sm1ss1on, as you I
18 know, is a rather elaborate product. We c1n give you truncated i
19 version. It means a section-by-section analysis, comparative I
20 text and i t is-going to take a while to do lit. If you want 21 to take a shortcut we will try that.
22 CHAIRMAN HENDRIE: I need somethfng in a hurry and I
I -
23 the rest of i t can follow as soon as possi~le, right?
I 24 COMMISSIONER KENNEDY: In a section-by-section i
25 analysis and the rest of it could follow, but I* would,;think
93 18 1
that the transmittal would at least state the Commission's 2
understandings under which you are sending it forward, so 3
there is no misunderstanding on that end, for example, 4
vis~a~~is the hearing.
5 MR. SHAPAR: Okay, we will have the draft language 6 tomorrow.
7 CHAIRMAN HENDRIE: We need to get down there the 8
langµage the Commission supports, right?
9 MR. SPECTOR: Yes, L'.think_:the particular deadlines 10 for the mark-up on the bill that you are concerned about 11 may have passed already, but at least there will be another 12 round and there will obviously be further opportunities in 13 the future and perhaps future years.
14 COMMISSIONER KENNEDY: Sometime during this century.
15 MR. SPECTOR: When i t comes to-tbe floor, there will 16 be an opportunity to adjust existing amendments to meet the 17 Commission's request.
18 CHAIRMAN HENDRIE: But obviously contemplation of 19 that possibility is considerably improved as we get on down 20 and let people.know what the thrust is.
21 MR. SHAPAR: So we can just give you the language 22 of the bill agreed upon without the trappings of a formal 23 packa~e, is that your suggestion?
24 MR. SPECTOR: I was actually suggesting the other 25 that the additional three or four days it ~ight take might be
94 1
well spent to get the complete package that would spell 2 out everything.
3 CHAIRMAN HENDRIE: All right, fair enough.
4 COMMISSIONER KENNEDY: That's what I thought you would 5 say.
6 MR. SHAPAR: He gave the wrong answer.
7 CHAIRMAN HENDRIE: Okay, what do we have to do 8 on the agenda?
9 (Whereupon, the Commission moved on to other 10 business and the above entitled meeting was concluded at 11 4:25 p.m.)
12 13 14 15 16 17 18 19 20 21 22 23 24 25
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