ML22230A200
| ML22230A200 | |
| Person / Time | |
|---|---|
| Issue date: | 05/10/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780510 | |
| Download: ML22230A200 (1) | |
Text
'
ETUR TO SECRETARIAT RECORDS-
"r================~
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 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DISCUSSION OF SECY-77-611D DRAFT AMENDMENTS TO THE ATOMIC ENERGY ACT ON THE PROTECTION OF SAFEGUARDS INFORMATION AND RELATED MATTERS (Open to Public Attendance)
Commissioners' Conference Room Room 1130 1717 H Street, N.W.
Washington, D. C.
Wednesday, May 10, 1978 1
The Commission met, pursuant to notice, at 2:05 p.m.,
Joseph Hendrie, Chairman, presiding.
PRESENT:
Chairman Hendrie Commissioner Gilinsky Commissioner Kennedy Commissioner Bradford ALSO PRESENT:
S. Chilk L. ~ossick H. Shapar E. Case W. Parler G. Mccorkle S. Ostrach W. Reamer B. Snyder C. Stoiber L. Spector, Senator Glenn's office
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2
P R O C E E D I N G S CHAIRMAN HENDRIE:
Okay, let us turn to a discussion of draft amendments to the Atomic Energy Act on the protection of safeguards information and related matters.
There is a paper, 611 and so on, subsequent amendments.
I think we are up to MR. SHAPAR:
D.
CHAIRMAN HENDRIE: -- D.
Which were the results of my concern that the narrowing of the proposition which has gone on had gone further that I could be happy with.
So I asked Howard to prepare D which went back and included some of the earlier provisions, but in a format essentially the same as that of C which I found to be, at least in my reading, a more easily understood format.
COMMISSIONER GILINSKY:
Before -you get to D, could you -- I'm sorry if I interrupted you.
CHAIRMAN HENDRIE:
No, I'm about done.
COMMISSIONER GILINSKY:
Could you briefly run over Casto how we get to where,we are.
CHAIRMAN HENDRIE:
Yes, I think that would be a good idea.
COMMISSIONER KENNEDY:
Maybe we should start at the beginning and figure out how we got here.
MR. SHAPAR:
Would you like me to start with A and end with D?
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER BRADFORD:
What about E?
MR. SHAPAR:
That's future.
COMMISSIONER BRADFORD:
There is an E now?
CHAIRMAN HENDRIE:
Smith has filed one, but it is sort of extra.
Go ahead.
COMMISSIONER KENNEDY:
Smith has filed one?
is that one?
Do I have that one?
What MR. SHAPAR:
"A" was responsive to a Commission 3
request for legislation that would better implement a program for the protection of -- give us statutory authority to implement a more expansive program for the protection of safeguards information.
That was considered by the Commission.
The Commission had certain.ref.irieni.eri+/-:sS, that they wanted in that basic approach.
Those refinements are~inco~pcir~ted in "B",
the basic approach is still the same and I will summarize that in a minute.
When "B" was considered only Commissioners Bradford and Commissioner Gilinsky were present.
COMMISSIONER GILINSKY: When "B"?
MR. SHAPAR:
When "B" was considered, yes, sir.
And they requested essentially that the scope of B be narrowed.
"C" reflects the narrowed scope.
"D" which you>.have in front of you is the latest version of the draft legislation, was ari attempt to bridge the differences between
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "C" and 11.D 11
' It is essentially the format ---
COMMISSIONER GILINSKY:
Between "C" and "B"?
MR. SHAPAR:
I'm sorry, between C and B, yes, sir.
It is essentially -- Bis essentially the format 4
of C rather than B with a few changes.
The main changes being three:
source material would be included, security plans or locations of plant equipment would be added to the "detailed security measures for the protection of facilities,"
and the third one was the deletion of the word "substantially" in the phrase:
"facilitating th~ft, diversion or sabotage,"
which is the operating criteria for the promulgation of the limitation for the new authority.
Those are the three major changes in C;. as now reflected in D.
So Dis essentially B with the three substantive changes that I have just mentioned.
COMMISSIONER GILINSKY:
.Could you just run over those again, please?
MR. SHAPAR:
Yes, sir.
Source material would be included in the authority to implement regulations to protect not only byproduct.and special nuclear material in the facility, but source material as well.
That was in B, it was not in C and it is in D.
That is one of the changes from C.
The next one is that in describing the *security information it has been expanded to includ: "would be
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 protectable." It has been expanded to include: "security plans or locations of plant equipment."
This would be added to the phrase, "detailed security measures."
Okay.
COMMISSIONER KENNEDY:
And this would apply not only to fuels, but as well to production or utilization of sites, is that right?
5 MR. SHAPAR:
Only to the latter, but it coul'd if the Commission is so ---
COMMISSIONER GILINSKY:
It would apply only to the former, I would think.
COMMISSIONER KENNEDY:
Does it apply to fuels MR. REAMER:
It applies to both, material and the facilities.
COMMISSIONER GILINSKY:
Are you talking about the amendment or are you taling about specific provisions?
COMMISSIONER KENNEDY:
What does it apply to?
Does it apply to reactors?
MR. SHAPAR:
Only the reactors as I read the current version.
COMMJ;SSIONER KENNEDY:
I'. Security plans and locations of plant equipment_arid fuel cycle facilities it would not be?
MR. SHAPAR:
Not as drafted, no.
CHAIRMAN HENDRIE:
That circles a different substative ---
MR. SHAPAR:
And there would be no reason why it
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could be expanded for the fuel cycle facilities as well.
Perhaps that's a good reason why it should be.
MR. McCORKLE:
NMSS suggeste_d that it be added.
6 MR. SHAPAR:
And we would have no objection to that.
COMMISSIONER KENNEDY:
Okay.
MR. SHAPAR:
Now, at this point let me point out that ---
COMMISSIONER KENNEDY:
And what was the third one?
MR. SHAPAR:
The third one was the deletion of the word "stibstantially" in the phrase:
"facilitating theft, diversion or sabotage."
That was in B, it was not in C, it is back in D.
COMMISSIONER KENNEDY:
That deletes:~.it, ;:::so.-~it.:'.is back.
MR. SHAPAR:
It was in B, it was deleted in C to accommodate the request of Commissioners Bradford and Gilinsky, just the reverse.
COMMISSIONER KENNEDY:
It is really a very compli-cated subject.
MR. SHAPAR:
Only because I'm making it that way.
It is really very simple.
Substantially it was not in B, it was in C, and it is not in D.
Okay?
- those. tJi.'ltig_s*,*_ piie at a time.
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7
CHAIRMAN HENDRIE:
Before you go back we should note one other thing which is more in a sense a mechanical thing.
Along with the Section 147 Amendment or the new Section 147 there were some changes which were necessary to 161(i), 181 and 274.
No changes from C, 181 or 274.
MR. SHAPAR:
Right.
CHAIRMAN HENDRIE: In 161 MR. SHAPAR:
There was a minor change to take care of DOE.
CHAIRMAN HENDRIE:
Yes.
Because DOE draws its authority from that same paragraph, the old AEC security program.
There had to be deletion of the phrase "and which requires a Commission license,"
COMMISSIONER KENNEDY:
And we deleted it.
MR. SHAPAR: It doesn't affect the substantive authority that we are asking for, but it does take care of a technical problem.
CHAIRMAN HENDRIE:
If it had been left in, it would have apparently given the DOE side a problem in using -- it would have affected them seriously.
Now, didn't we also put a source material in there at some point at 161?
MR. PARLER:
Yes, the source material addition, to make the ".D" "version._,conf:orm to the "B" version it was made consistently throughout the draft.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 147.
MR. SHAPAR:
There was a question about the draft.
CHAIRMAN HENDRIE:
Okay, now let us go back to 8
COMMISSIONER KENNEDY:
What I would like if I could take just one minute, I would like to go back, if you would okay, now we know what each of these significant changes play a role in, these,changes, the important substantive changes -- somebody assess the importance of these.
What do,they mean?
As a practical matter what is the effect:
of the differences, okay?
MR. SHAPAR:
The source material addition can be described, I think, fairly easily.
The legislation as drafted under any version would cover byproduct material and special nuclear material and facilities.
Obviously the key interest as far as safeguards is concerned is in SNM and that traditionally has been the case.
But there also has been concern to a much lesser extent with respect to safeguards in the context of the protection of source material.
For example, source material is mentioned tn the Nonproliferation Act.
In fact, source material is mentioned in connection with the Commission's safegurds responsibilities in the Energy Reorganization Act, Sections 203 ---
COMMISSIONER GILINSKY:
Well, what are we guarding against here, the theft of source material?
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9
MR. SHAPAR:
Diversion of source material, I think, would be the major emphasis, yes.
COMMISSIONER GILINSKY: So we are going to keep ---
COMMISSIONER KENNEDY:
And that would be to include it would make it consistent, in your view, with the law up to now, A, B, with your,~understanding of the Nonproliferation Act?
MR. SHAPAR:
That's my understanding, yes.
COMMISSIONER KENNEDY:
And not to do so would make it somewhat inconsistent with each?
MR. SHAPAR:
I think so, in terms of the way our safeguards and responsibilities have been handled in the past.
The major emphasis has been indeed on SNM, but there has been a much lesser concern with source material, but it has been there nonetheless.
COMMISSIONER KENNEDY:
Consistent with legislative language in history?
MR. SHAPAR: Yes.
COMMISSIONER KENNEDY:
Okay, that's what I wanted to know.
COMMISSIONER GILINSKY:
Do you really think so?
I mean COMMISSIONER KENNEDY:
I asked him and he gave me an answer, and I'm accepting his answer because that was my understanding as well.
Since he has not contradicted my
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 understanding, I don-~t know where to go from here.
COMMISSIONER GitINSKY:
Well, you put the question so surly.
COMMISSIONER KENNEDY:
Well, that's usually the way you get the right answer to the question.
MR. SHAPAR:
Do you feel the wi tr1.ess has been led?
COMMISSIONER GILINSKY:
What we are talking about here is authority to keep source material shipments secret and plans for such shipments secret, locations secret and so on.
Isn't that going far*.:
0 beyond what ---
CHAIRMAN HENDRIE:
To the extent I
don-~: t: :know.
Does the plum bat affair give you any pause or not?
the extent I know---*
To COMMISSIONER KENNEDY:
It gave Paul Leventhaul a pause I note in an article just the other day.
COMMISSIONER BRADFORD:
I think the pause is the opposite why it gave Paul Leventhaul, tnat!,s what got things started.
CHAIRMAN HENDRIE:
To the extent that you want to be in a position to say you are minimizing the risk of. ~:).::::,
diversion of the yellow cake war materials which then could be used in a graphite or heavy water reactor, why something like this is handy.
MR. SHAPAR:
This material is included in IAEA Categories I and II.
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER GILINS.KY:
I understand, and I feel there is a sense of protecting the material, but ---
COMMISSIONER KENNEDY:
Are you sensitive f.or the need for that?generally speaking?
COMMISSIONER GILINSKY:
Not entirely, but what are we talking about, extending the safeguards review to mills, to God knows what?
MR. SHAPAR:
Oh, this is permissive authority.
COMMISSIONER GILINSKY: I understand, it is just authority and you don't have to use it, but y.6urgo up there for a purpose and you ask for this authority because some day you might want to use it, presumably you think you might and there may be a reason to do it because this covers an area where you think you'.*:might want to go.
COMMISSIONER KENNEDY: If you don't, and.you iater find a part+/-cular situation or case in which you.do, without the authority you would have a slight problem.
11 COMMISSIONER GILINSKY:
That's right, but of course you could always go up again.
It is very hard for me to invision using.that authority.
COMMISSIONER BRADFORD:
You are having the same difficulty with this as I had with the aspects of the clearance, which is when the Senators look at you and say we are going to make a case as to why you should have this authority, what is it you are worried about. You have to have some answers.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER GILINSKY:
If you ask this question against uranium, I think I know the answer.
12 CHAIRMl\\N HENDRIE:
Well, this is clearly a second order concern compared to weapons useable materials, there is no question about that and then the question is: would you like to have the.*.authority if it ever seemed appropriate in view of circumstances in the world to take those steps,.would'you like to have those authorities in the law that you could implement them.
I must say for myself, I would not foresee any near term*
implementation, in fact, of protective regime on the source material, but COMMISSIONER KENNEDY:
I understand the concern, I don't see the problem either except to say that the Nonproliferation Act must -- in this design -- must also have taken these very thoughts that we are expressing into account and did include in reference source material.
COMMISSIONER GILINSKY:
Presumably there is the material that you have to keep track of and that seems perfectly reasonable, but:.+/-s it something you have to keep secret and for whose handling people need to have clearances and so on.
COMMISSIONER KENNEDY:
And to what extent do safe-guards extend?
COMMISSIONER GILINSKY: I guess I wouldn't go that far.
1 2
3 4
5 6
7 8
9 10 11 12 13
- 14.
15 16 17 18 19 20 21 22 23 24 25 13 CH~IRMAN HENDRIE:
Well, in particular because I don't see -- my tendency wouid be to say if one is going to talk about this kind of legislation, I would try to ~ook ahead and get it framed so that there were authorities presiding there that might conceivably -- the Commission might want to implement some day.
I think your approach would be to say no, you know, if we see some need for source material protection in the furture along those lines, go back and change whatever is down,:off::the:_,books that provides it.
Since I don't see any -- I haven't foreseen any moving on any implementation for source material in the near future, unless circumstances change substantially from the present, I'm not hung hopelessly and to the bitter end on it.
I'm negotiable though, what do you have to negotiate?
COMMISSIONER GILINSKY:
Well-~-
COMMISSIONER KENNEDY:
I will deal with them one at a time.
As a practical matter, I don't -- you know, given the fact that we to a very large extent see the problem r __
essentially the same way, I can thus recognize the import of whichever we wish to go.
I'm not persuaded we have to do this.
I think it would be a prudent thing to do, I think it is not an nun.ecessary thing to do, thus, if ---
COMMISSIONER GILINSKY: Let me ask.
Do we want to have material accounting requirements for source material?
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15
-16 17 18 19 20 21 22 23 24 25 CHAIRMAN HENDRIE:
Do we?
I doubt it very much.
MR. McCORKLE:
I would like to just make one statement in that regard.to the Category II:.and Category 14 III rule which refers to source material, and it is envisioned that some degree of protection, albeit, the minimal amount what we provide in to it, insofar as the international community is concerned COMMISSIONER KENNEDY:
The IAEA statute?
MR. McCORKLE:
Yes.
CHAIRMAN HENDRIE:
But in terms of the domestic fuel supply industry, I don't think we~- if we added up and substrated, I'm pretty sure we don't publish inventory differences on it and otherwise account for it.
COMMISSIONER GILINSKY:
What are we going to keep saying?
CHAIRMAN HENDRIE:
At. the moment, nothing.
MR. SNYDER:
The practical matter is there is little if any information that we would cover at the moment.
CHAIRMAN HENDRIE:
At the moment, nothing.
In three or four years if there gets to be concern over people heisting natural uranium ores and yellow cake in shipment, to run it out some place to some other nations COMMISSIONER KENNEDY:
Some people for over the years have_expressed precisely those concerns.
As a matter of fact in the New York Times on Sunday there was, as I recall;
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 the anniversary of the first expression of concern in this matter.
History suggests to me, albeit contemporary history, that once one hears those expressions of concern they are likely to deepen and strengthen, not lessen.
Therefore, you are talking about a period, I should think, in the relatively near term when it will become a matter of great concern even though in fact, it is not now.
MR. McCORKLE:
I'd like to bring one other point up that Dr. Smith mentioned in a memorandum recently that the leading source material from Sections 147 and 16l(i) (22) would imply that the need to protect source material is less than byproducts and he disagrees with that proposition.
He notes that both the IAE staff and the Nonproliferation Act mention source material and they remain silent on byproduct material.
I note that here it does not question the byproduc::'t material.
COMMISSIONER GI LINSKY:
Well, I assume wheff,,you, are including byproduct material you are talking about radioactive waste which could be harmful to people.
CHAIRMAN HENDRIE:
Well, what ever the standard amounts significant for the public health and safety or the common defense and security as determined by the Commission.
MR. McCORKLE:
At the present time, I mean,such materials.are exempt from security requirements.
There are no requirements for any security measurements in the
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
- 24.
25 16 transport, for instance,of Cobalt 60.
CHAIRMAN HENDRIE:
But there will be on spent fuel.
MR. McCORKLE:
At the present time there is none on spent fuel.
CHAIRMAN HENDRIE:
Well, wait until we get down the line a little bit.
COMMISSIONER GILINSKY:
Do you mean there is something in the works for spent fuel or not?
Do we have anything in the works to provide security for spent fuel?
MR. MCCORKLE:
There is nothing.in the works in the new Part 73.
CHAIRMAN.HENDRIE:
I say, give them a little while and I think we will.
MR. McCORKLE:
The FEA does require that adequate security measure be maintained with respect to export authorities, which means there would have to be some security measurement plan developed, ifi'.we are going to be consistent with that Act.
So do we wish to protect those plans or don't we and I think that's the issue here.
MR. SHAPAR:
Well, I think you have got a short-term issue and a long-term issue here and -_th~y both need to be considered.
CHAIRMAN HENDRIE:
It seems to me that is ample discussion on source material and I think we should see where they kind of settle down.
Why don't we move on to other points
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 and get these all mapped out.
MR. REAMER:
Before you move on, let me point out one aspect of 16l(i) which does include source material, and that is 161(i) and in there we are expressly recommending legislation that would include in the Commission's rulemaking authorities, the authority to impose safeguards requremertts that would cover source material.
So to the extent that Dr. Smith has concerns, by deleting source material from 147 would be suggesting that there is no ne~dcto_ *protect*::.that.
I don't think that concern is legitimate.
I think 161(i) shows that you are -- to the extent that safeguards requirements for source material are required and we are seeking legislative authority to carry that out.
MR. SHAPAR:
At one time the Commission,;sought to expand 161 (i) to specifically include source mater_ial for reasons that were very clear that perhaps it wasn't adequately covered.
I don't consider that a major problem, because we probably could derive the authority from section 65 of the Act.
COMMISSIONER GILINSKY: But does it necessarily follow just because you have to keep track of the material you have to keep that accounting secret?
MR. SHAPAR:
It doesn't necessarily follow, no.
CHAIRMAN HENDRIE:
Not necessarily because it could go.. ~here and stay there and 161 conceivably ---
COMMISSIONER KENNEDY:
Which is a different
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 question than the physical security arrangements whibh are being spoken of here.
It could be international contacts, and if you are going to have those then the necessity could protect whatever plans are associated with those statistical data.
MR. REAMER:
Well, it is my understanding from the staff that they do not contemplate that a something called security plan will likely be adopted for source of material exports.
There may be certain types of security measures, but there won't be anything that amounts to a security plan and detailed security measures, at least in their interest.
CHAIRMAN HENDRIE:
Okay, good point.
Could we go on to the second point.
MR. SHAPAR:
The second, as you recall, and again now this is illustrating the differences.between versions C and D.
The word "security plans or locations of plant equipment" have been added to "detailed security measures~'"for the physical protection of production or utilization facilities.
I,think this was a point that was made by either NMSS or NRR or both.
MR. CASE:
My concern was that security measures might be read narrowly not to include security plans nor possibly not to include plant equipment -- lay out of plant equipment which I thihk.'is important from a physical
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 protection standpoint.
So to avoid that, I suggested that those other words be added.
19 MR. SHAPAR:
And I think the point was made earlier that if it deserves to be in here, then perhaps it also deserves to be in the fuel cycle as well.
At least that was one argument.
COMMISSIONER GILINSKY:
What kind of equipment are we talking about?
MR. CASE:
I'm talking about location of equipment, like electrical equipment, instrumentation.
Not the details of the, :equipment its elf, but its location within the facility.
You know, you can go here and screw that one up and you can go over there and screw that one up.
The detailed locations was the concern to me.
COMMISSIONER KENNEDY:
This recalls a briefing we had a considerable time ago, well:over(a*~ear ago and you may recall some people from one of the labs who had gone through a detailed design examination of facilities to try to ascertain if you really wanted to do some damage, how could you best go about it.
Remember that?
MR. SHAPAR:
Sandia.
COMMISSIONER KENNEDY:
They put a few red marks on the chart, I think, that suggested that here were the places that under the best of design circumstances you could conceivably have difficulty' if somebody knew how to go about it.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 MR. SHAPAR: It might be useful to point out that in the earlier version the language was extremely loose with which Commissioner Gilinsky and Commissioner Bradford had trouble; It didn't attempt to define the kinds of safeguards information we were interested in.
The later version has attempted to address that concern by specifying the safeguards information we were interested in.
The point we have just been discussing is whether or not it has been cut back too far or not.
COMMISSIONER KENNEDY:
And that depends on one's interpretation of the language in the version and Ed's concern is that it might be so interpreted so as to exclude these items, which his view, they should be included and I must say I am sympathetic to his view.
Indeed, as I recall, it was information of precisely_* that._.,_kind-'.which drew some anguished comments from officials of the Congress recently unto which I thought we were trying to be responsive since the Congress'. :comments were wise.
COMMISSIONER GILINSKY:
Are you saying location of plant equipment-for the physical protection of production of these facilities, are you talking about equipment for the protection of?
MR.-: CASE: ::r. Location_ of *equipment.
COMMISSIONER GILINSKY:
What does :a.tha.t for physical protection mean?
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15
- 16.
17 18 19 20 21 22 23 24 25 COMMISSIONER KENNEDY:
That sounds like a glich in language.
21 COMMISSIONER GILINSKY: He just stuck it in after security plans because it was security plans for the physical protection.
COMMISSIONER KENNEDY:
I think he stuck it in the wrong place fr.om the way you read it, it sounds like that.
MR. SHAPAR:
Want me to read the whole phrase:
"Security measures, security plans or locations of plant equipment for the physical protection of production or utilization facilities inv~lving nuclear materials."
COMMISSIONER KENNEDY:
Yes, but my question is the same as Commissioner Gilinsky.!;s.
Is this eq11ipment that is designed for the physical protection of the equipment -- I mean bf the facility?
CHAIRMAN HENDRIE:
Or is it the location of equipment?
MR. CASE:
It has other purposes.
It could have that purpose too.
COMMISSIONER KENNEDY:
I know, but it is well beyond that.
MR. CASE:
Yes, it is well beyond that.
MR. SHAPAR:
Then this language is ambiguous then.
COMMISSIONER KENNEDY:
It +/-sin the wrong place.
It needs to be ---
COMMISSIONER GILINSKY:
I think you ought to qualify
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the plant equipment. -I think the idea is there, but you don't want to 22 COMMISSIONER KENNEDY:
It is vital to the safety.
COMMISSIONER GILINSKY:
-- specific equipment that MR. CASE:
It is already detailed location.
It has got:that qualifier on there.
MR. SHAPAR:
The preparatory language that embraces all these categories are disclosure of safeguards information wnich identifies a licensee, their applicants detailed, and then it goes 1, 2, 3.
COMMISSIONER KENNEDY:
Security measures ---
COMMISSIONER GILINSKY:
Right.
MR. CASE:
Or security measures or detailed locations of plant equipment.
COMMISSIONER KENNEDY:
If I understand the purpose that you have in mind, Ed, which coincides with my own concern, it ought to read something like: "security measures and security plans for the physical protection of production or utilization facilities involving nuclear materials, and the location of plant equipment vital to the safe operation of such facility."
COMMISSIONEK.<GILINSKY:
Well, somebody better ask this:
does this include the emergency cooling system or some other piece of equipment.
Would that mean the Commission is going to keep secret the configeration of the safety system?
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question.
COMMISSlONER KENNEDY:
Well, that's a good MR. SHAPAR:
Well, it is location isn't it ---
COMMISSIONER KENNEDY:
Yes.
MR. SHAPAR:
Configuration, I guess,, tunder this language would be okay, but the precise location within the plant, where it is located w+/-thin the plant.
Of course, there~could be some cross-over.
23 COMMISSIONER GILINSKY: It really sounds as if you could keep the detailed drawings of the plant secret.
Now, is that what we intend?
You are basically saying the schimatics are::okay, but the engineering drawings remain secret.
MR. CASE:
Yes.
Sometimes we don It want. to. disclo~e.
i ihe_ exact*:*foca'tipn~ i:ri. ::f:.Iie_ p_ia11,t *. '.*.
COMMISSIONER GILINSKY:
Well, do you want to specify the equipment or is there some general category?
MR. CASE:
I suppose I could try it.
I would have to go back to the previous discussion. I'm afraid I would leave out something and then -- I guess you have gone over that once.
COMMISSIONER GILINSKY:
Well, but what is your answer if this might include vital pumps for cooling systems ---
MR. CASE:
Well, my answer today is no, we are not concerned about those.
I don't think so for the future, but I couldn't conclude that.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 COMMISSIONER KENNEDY:
What we need to to, I guess*:
what Commissioner Gilinsky is suggesting, we have to have somewhat more precise description than vital to the safe operation of something in the plant, something more narrow than that and we ought to get at the kinds of equipment we are talking about.
CHAIRMAN HENDRIE:
I think it is going to be hard to write in to proposed.legislation that sort of level of detail.
I think you are almost going to have to fall back on the sort of language that was included in the C version of the paper for just this purpose in fact, which says the Commission must exercise this authority so as to apply the minimum restrictions needed to achieve the objectives of protecting health and safety and so on, and upon a determination that.the unauthorized disclosure of the particular information.would have, in the words of this draft, a significant adverse effect on the health and safety of the public by facilitating theft, diversion and sabotage.
I think that sort of general threshold to the things that you would.be allowed to withhold would be about as good as you could do in a legislative package, and it seems to me COMMISSIONER KENNEDY:
So it ultimately comes down to a case-by-case determination.
CHAIRMAN HENDRIE:
Well COMMISSIONER KENNEDY:
You have got a generic class
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which you could pick out fairly quickly, but then,y'.ou:.:..~-;~*
- going to get down to specifics and say, you know, what's significant and how significant it is?
MR., '.SHAPAR:
Well, you might want to get a little more detailed in your rulemaking exercise.
25 CHAIRMAN HENDRIE:
Yes, the rules to implement will certainly want to come down to a further level of detail, and there &re~tlearly conflicting objectives.
The floor plan of the reactor building and the auxillary building, the site plan itself are in fact aids to a would-be saboteur.
On the other hand, due to disclosure of those it would have a significant effect on health and safety by facilitating sabot]:ag:e.
Well, I think you would have to say no against the ---
COMMISSIONER KENNEDY:
Only if-on those-floor plans the location of specific barriers and particular locking devices was identified.
CHAIRMAN HENDRIE:
Yes, you might prefer not to show a particular doorway or what the nature of the barrier was.
The Commission's thrust to run a pretty open and public safety evaiuation clearly runs counter to keeping out of the hands of potential or wrongdoers any useful information, and there is a balancing that has to go on.
It seems to me that the sort of language here, minimum restrictions upon a determination and so on has the right kind of input in terms of
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 explainations provided for it.
COMMISSIONER BRADFORD:
When you said that was in 611 C, you are not saying it is out of 611 D?
26 CHAIRMAN HENDRIE:
No, no.
I was just saying that that language appeared as part, I believe, as part of the narrowing of the propositions that went on in C and it seemed to me a rather decent threshold statement.~nd entirely appropriate.
COMMISSIONER GILINSKY:
Let's see, if you are going to broaden this category then do you want to weaken the stand-ard by crossing out substantially.
MR. SHAPAR:
That's the last point.
CHAIRMAN HENDRIE:
Well, I think ---
COMMISSIONER KENNEDY:
You have got "significant adverse ef.fect".
CHAIRMAN HENDRIE:
Yes, the concern raised that --
the thing that struck me about it and the concern was raised by the staff, the determination of whattsubstantially facilitates theft diversion or sabotage may get to be a problem.
I think in this context substantially facilitating raises a higher standard than you really want raised or it will turn out that way by the time the staff gets through interpreting it very carefully and so on.
Staff has a tendency, I'm afraid, to take very seriously those modifiers.---
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER KENNEDY:
But here you have two modifiers.
CHAIRMAN HENDRIE: --
and ---
COMMISSIONER KENNEDY:
Significant adverse effect caused by -- which would be caused.by substantially ---
27 MR. SHAPAR:
Dr. Smith, in a memorandum to me commenting on an earlier draft made the comment that substantially* facilitating theft could be interpreted to mean disclosure would have to result in a moderate or high probabilit that the theft would be successful. I thirik you can argue to that, but he makes the point.
COMMISSIONER GILINSKY:
Well, let's take your example of a floor plan of a reactor, okay. How would you apply this, for example?
CHAIRMAN HENDRIE:
I see no way that that could be withheld under this provision.
COMMISSIONER GILINSKY:
Well, but suppose the unauthorized disclosure of such information could have and adverse effect.
Suppose somebody by using that could discover all sorts of things and find a way to get in or whatever, but there is no standard as to what incremental difference that makes.
COMMISSIONER BRADFORD:
In fact, having the floor plan versus not having the floor plan seems to me would substantially facilitate it.
So that even if you had
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 substantially in there you would still have -- you might still well get the floor plan for the reactor.
COMMISSIONER GILINSKY: Yes, but if it makes a lot of difference to have it, then, you know, maybe this should be classified or protected, but if it doesn't, then there wouldn't be any potential there.
MR. MCCORKLE:
Well, thetptoblem.:-boilS(1down to one of judgment.
It depends on who makes the determination whether it is significant or of substantial value.
COMMISSIONER GILINSKY:
Well, that's right and I'm trying to make it easy to withhold too:*much:~:material.
COMMISSIONER BRADFORD:
In fact, though, once you start withholding material at all on a reactor, it seems to me that if you are drawing a line at all is very hard.
And if you decide that it is rational to withhold some part of the information about a reactor that there is going to be a fair amount of other information that will fall into that class pretty quickly, isn't there?
MR. CASE:
We haven't done it so far.
COMMISSIONER BRADFORD:
No, we haven't withheld anything so far..
MR. CASE:
No, we have kept out the details of the electrical equipment location.
CHAIRMAN HENDRIE:
See, there is a body of information that is held now under that what -- 2790?
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SHAPAR:
Yes, that's right.
MR. REAMER:
But that should be security related according to our regulations.
I don't know what the staff practice is, but the regulation is clearly security related.
29 MR. McCORKLE:
Our practice has been to interpret it actually the way it is states, security measures.
That's part of the problem.
COMMISSIONER BRADFORD:
So electrical equipment would be what,.,simply :the alarms.and that sort of thing.
MR. SHAPAR:. We are.protecting, you understand, under proprietary, an exception to the FOIA.
COMMISSIONER BRADFORD:
I do understand that, but MR. CASE: Howard is saying that that's the only piece of information, I gather, in a reactor you would feel nervous about now.
COMMISSIONER GIJLINSKY:
Actually, the specific the plant specific is reasonably protected under the proprietary label.
MR. SHAPAR:
Depends on your definition of reasonably.
CHAIRMAN HENDRIE:
Well, if they are in our hands, they are subject to an FOIA request aren't they?
MR. SHAPAR:
Any information in our hands are subject to that.
Of course, one court has upheld the proprietary category, but it was a district court.
The consensus of the rule review around this place has been that it may --- I'll drop that point.
'1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
~4 25 30 MR. McCORKLE:
I might add and it might be pertinent, our application of 2~.790 and a strict interpretation of what it states and that comes from the ELD people, we have also been criticized if there is information of value in the Public Document Room but we can't withhold.
MR. SHAPAR:
Was your point the ELD point was too strict?
MR. McCORKLE:
No, no.
You gave us the interpre-tation and I think~ it is a proper interpretation.
I'm not that is just a statement.
I think it is a good legal interpretation.
That is exactly what it states.
I am not criticizing that, but there is a certain category of infor-mation which some people perceive as being of value that is in Public Documents.
CHAIRMAN HENDRIE:
I can also see some scale with which you could withhold, depending on the nature of how you do it.
I wouldn't withhold a reactor floor plan.
If you wanted to discuss the floor plan of the building in a __ fuel -,,cycle facility, you know, the main weapons useab,le material vault.and the approaches to it and so on as to where they are located, why, I'm prepared to think again and think maybe that's something that would fall -- you know disclosure would be a significant and adverse effect.
MR. SHAPAR:
Of cours~, the concept is likely to be tested in three places.
One is you present this to the Congres
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and number two, we issue a rule which could v:ery well be tested and reviewed by the courts, and then the individual application in the rule which itself can be tested.
COMMISSIONER GILINSKY:
This is to apply both to reactors and fuel cycle facilities?
31 MR. SHAPAR:
Yes.
The concept of all of these versions from A thru Dis to cover-~ in fact, let me just make a couple of generalizations here.
All of the versions cover both the fuel cycle and nuclear reactors.
That's point one.
It protects it on the basis -- all of the versions are protected on the basis of both common defense anddsecurity and health and safety.
And third, all of the versions would protect it in the three phases where we felt protection is needed.while the information is in the hands of the NRC, while the information is in the hands of the licensee or anybody else outside of the NRC and third, during the hearing process itself where we attempted to pick up some equivalency from 181 of the Act where you cari. pr~-l:ec:i:-;,.
1
.:: classified information, true classified information but with a minimum interference of the procedrual rights of parties.
Those are the three phases, and of course, the final point is the protection would.apply under our versions to both the informationa.. under a new section and the access to the material itself which is already there under 161, but there
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would be certain improvements in 161 to get people who are other than just licensees, like architect/engineers, and I think you remember that discussion that we had at several meetings.
COMMISSIONER GILINSKY:
Very well.
MR. SHAPAR:
I.. think also, a lot depends, I guess just from the standpoint of logical analysis here, is how the Commission will all come out on the clearance rule on which y:ou are starting a hearing.
I think that's an important consideration to take into account in your own assessment of how you ought to go with it.
CHAIRMAN HENDRIE:
Let's see, we are seesawing back and forth between "substantially and security measures; security plans and locations of plant equipment."
32 Ed, the reason you wanted the additional language was to make sure that some things didn't get left out. Is tit~rie a definition -- is it possible to cure this with a definition some place, or is that a:,.bad way to go about it or what?
Howard do you want to comment?
MR. SHAPAR:
I think we can improve on this, yes.
I think one of the points that has already been brought out on improvement can be made, and that~,.is, it is not clear from~.this version whether or not the location is important because it has a direct effect on health and safety, or could, or whether the*.:equipment is to protect the security
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 set up.
I think that point is not clear as the language is currently drafted and that could be improved.
I think another suggestion that was made.during this discussion that it ought to be made clear that if 33 you are looking at vital safety information that concept could perhaps be articulated better.
MR. REAMER:
Especially if one were to have some idea of the criteria that the staff might apply in deciding which equipment would or would not ---
MR. SHAPAR:
I tnink that's asking too rriuch in terms of a statute of this kind.
MR. REAMER:
Well, at a minimum, someone is going to ask that question.
MR. SHAPAR:
Yes, and I think we may want to develop it perhaps the best we can in the section-by-section afialysis if we have time ---
COMMISSIONER KENNEDY:
And in rules.
MR. SHAPAR:
And certainly in rules.
COMMISSIONER KENNEDY:
Which will then be subject to public comment and improvement, presumably, thereby.
COMMISSIONER GILINSKY:
Do we already have the authority to prescribe regulations to licensees on how they ought to handle information of various kinds?
MR. SHAPAR:
I think we do.
It is a question of how we can approach it.
For example, I can see the Commission
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 now promulgating a regulation that will say to licensees, all licensees shall use three-combination lock safes; number two shall not disclose information to any person who 34 doesn't have a legitimate interest in the information associated with the plant or something like that; and perhaps a requirement, although this may be subject to some argument, a requirement that licensees only employ people who are trushworthy.
You could get some argument about that latter point.
MR. CASE:
But that offers no piotection under FOIA for the information in our hands.
MR. SHAPAR:
And that's the easiest matter to handle, the FOIA.
MR. REAMER:
In addition, you could not require clearances under existing authority.
MR. SHAPAR:
The one thing you couldn't do under existing authority, and that is clear from case law, is to require an honest-to-goodness, government-run clearance program. But that's different from whether or not could require a licensee.
COMMISSIONER GILINSKY:
You certainly could do it in the case of a fuel cycle clearance.
MR. SHAPAR: Well, we are talking about information for the moment.
If you are talking about access to material we have statutory authority now in terms of access to material.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 With respect to access to documents you could do it if you classify the material~
35 COMMISSIONE~ GILINSKY:
Yes,_but access to security plans can be reasonably construed to be access to material.
It is like having a combination to a safe is access to a safe.
MR. SHAPAR:
I think one could make the argument, in fact we have pushed it a little bit on occasion, but I don't think it is a completely convincing argument.
Besides, I think wecdiscovered it when we analyzed it before that the same people who would have access to the material would not necessarily dove-tail with the people who would have access to the information.
For example, architect/-
engineer.
COMMISSIONER**_GILINSKY:
information they withhold.-
It all I
depends I
on how much I
I I
CHAIRMAN HENDRIE:
I recommend we deal with Ed's I
I elaboration by just letting that (iii) at the top read:
I "Security measures, including security plans, procedures I
and equipment, for the physical protection~"
I MR. SHAPAR:
Would you extend that to the fuel cycle too in the earlier sections?
l MR. CASE:
But you only cover se,urity equipment.
I COMMISSIONER KENNEDY:
Procedures and equipment I
for what, for the physical protection?
I CHAIRMAN.HENDRIE:
Yes.
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER KENNEDY:
That is nft getting to the point if I understand it, that Ed was maki~g originally.
MR. CASE:
Well, I suppose that [ could argue I
I that electrical equipment, which is normally used for safety I
I shutdowns also provides physical protection of the security I
in kind of a broad sense, because it does.
It keeps the radioactivity from coming out.
COMMISSIONER KENNEDY:
But you did characterize I
that as stretching the point s0me to get tfuere It seems to I
36 me it is quite a stretch too.
We are talking about different I
kinds of equipment.
It might be the same, lbut it might not.
MR. CASE:
It all depends, the::Jptim~ryt*,purpm;e, I
the secondary purpose, the tertiary purpose.
If it has I
one of those purposes, then it is ok9y is ~y argument.
MR. REAMER:
Well you still have the question, which someone will ask which is what do you intend to protect under I
I the statute.
The question will come up.
~o you intend to protect plant equipment and safety-related plant equipment or only security-related plant equipment?
In that sense, the statutory language would follow CHAIRMAN HENDRIE:
At certain safety equipment, right?
MR. SHAPAR:
Yes.
what you intend to do.
I the moment ~ou are protecting
- 1 COMMISSIONER GILINSKY:
The way. II understand, we want,:to keep this information from public--~
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 MR. CASE:
From the public domain.
COMMISSIONER GILINSKY:
And because you will reveal special vulnerabilities of the system against which there are no hard word solution.
MR. CASE:
(Nods in the affirmative.)
COMMISSIONER KENNEDY:
Which kinds of vulnerabilities exist in almost any kind of system, not nuclear systems, but just generally any kind of a system has inherent vulnerabilities against which there are always so many clearly limited measures you can do, inevitably.
CHAIRMAN HENDRIE:
Well, I think it is a fair proposition.
If you want to cover the waterfront, why, I guess it needs a little redrafting to include locations of certain vital equipment which still has to meet the standard that.the Commission has to exercise a minimum instructions, and so on and so on.
That sounds as though it ought to be along the lines of the thing you embarked on, Dick, a moment ago.
If we elaborate it separately, then security measures for the physical production of, is certain adequate for all of that material, right?
Nobody is going to argue that security may or may not be a plan or procedure or a piece of equipment.
I think that's okay.
But you need to go on beyond that, security measures for the physical protection of ---
MR. CASE:
You are not going to say security plans, your argument is that everybody would understand that security
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thing.
I I
I I
I I
I I
CHAIRMAN HENDRIE:
Yes.
It is tfue non-security 38 I
vital safety system and stuff that you want to get in to there.
I COMMISSIONER KENNEDY:
Just a little technical I
pro~lem.
Would you agree that security plans would be naturally I
I incorporated within the phrase "security measures"?
MR. SHAPAR:
I I think you would get an argument on that one.
COMMISSIONER KENNEDY:
You would get an argument?
Do you think it would be better to put the word "security plans" into it?
MR. SHAPAR:
It is not a precise term of art by any means.
Some people look upon a measur~ as something that I
carries out a plan.
And that's an initial/distinction.
I COMMISSIONER KENNEDY:
So then.you have_got to use both to avoid that slight difficulty~
I MR. McCORKLE:
Could I ask one qlestion of Howard I
in connection with this point that Ed brought up.
Number 2 down there states, "stu~ies, reports and I
analyses," of this type, et cetera, my int~rpretation from I
the standpoint of fuel cycle facilities, the only time that I
we would have information, ~intl~ding critibal layouts like I
where a vault is, storage arrays, et ceter~, would be attached to a safety analysis.
plan them*;we*:.::can~:exelude*:*.that.
If In it is other I
i part of a security I
the wprds, if I
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 legi§lation went through and ~aid security plans, we can exclude it.
Then I think if this number 21went through, it I
would include plant layout, at least insofar as those items I
39 ;:
are concerned it would be of some assistanbe -fb~ari~~d~~rsary.
I
., ~
.' :MR.
SHAPAR:
As I reqall the genesis of two and I
I could be wrong on this, I thought it waslas the result of I
NMSS or NRR suggestion that you sometimes generic studies ---
CHAIRMAN HENDRIE:
And OPE too. l.
MR. McCORKLE:
Okay, generic stu 1es and we also had -- when you say reports and analyses ybu have got an SAR, 'PSAR)and so on.
Those are reports, wbuld they be included.
I I don't mean all of the reports, but thoseithings in it.
I In other words, blueprints, layouts and things that would be I
of assistance to an adversary.
I i
MR. GOSSICK:
Whose studies are these?
Ours or the licensee's onil:y?
I MR. SHAPAR:
Well, I suppose thet could be both.
I I
MR. GOSSICK: If they are ours, we could classify them.
I CHAIRMAN HENDRIE:
Anybody:~:s studies -:_of.~.significant I
adverse effect, why, and so on and so on.
COMMISSIONER GILINSKY:
Wait a minute, these are I
whose studies are these?
I MR. GOSSICK:
That's what --- yes, yes.
You know, I
we are paying for it and if they~are ---
I COMMISSIONER GILINSKY:
Well, what if they are I
I
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 somebody else's studies?
I MR. GOSSICK: Well, that's the point.
I COMMISSIONER GILINSKY:
What if it is a Belgian i
stu~y?
I raised the question, because youlknow restricted I
data covers the world.
I CHAIRMAN HENDRIE:
Yes.
I I
COMMISSIONER GILINSKY:
It doesnit matter how it
. I originates, it falls into certain categories, how, it is I
restricted data.
I I
MR. CHAIRMAN HENDRIE:
If the Belgians publish a report and say, boy, a good way to sa~otag~ reactors --
Westinghouse reactors is as follows:
Step!l, 2, 3 ---
1 But if the Belgians should indeed.publish such a I
I document then the advice to saboteurs was l+/-ndeed,,. we I
considered it a little too explicit, then ~hat report showed I
up in the U.S., why I would sure like to have authority to I
I have it.
Say no, this isn't available to the general public.
I 40 COMMISSIONER KENNEDY:
But if in 1. fact it is available I
to the general public in Brussels or somewhere in Europe I
CHAIRMAN HENDRIE:
Can't help i ti, can't police Brussels.
COMMISSIONER KENNEDY:
But there1would be little I would defer to counsel, of course -- I wbuld not wish to i
i go in to court to justify our withholding something that was published.
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN HENDRIE:
I wouldn't hesitate to do it, I
I don't care if they aie selling it on the lnewsstands in 41 I
Brussels.
If it shows up over here, I wou]d use the authority to clamp down on it.
COMMISSIONER KENNEDY:
I would ndt wish to pay my I
lawyers to go in to defend that.
I I
MR. SHAPAR:
Well, there is a 1eJa1 theory that once I
something is out it has been compromised that I
I CHAIRMAN HENDRIE:
I'm sorry, th~ 9overnment of the I
, I United States has worked that way for yea~s.
i COMMISSIONER KENNEDY:
The Supre~e Court of the I
United States had something to say about that too, not all that I
I long ago.
CHAIRMAN HENDRIE:
Y~s, recentlyja went and classified a report and sent it *O,f I
and then thought better of it, said nope, we fication back on and send your copy in.
TJe sister agency to some folks put the classi-guy said, no, I am::.. not going to send it back.
Nevertheless, it was 1
. f. d Wh I
d.
h I.
- t. 11 rec assi ie.
en went to rea it, w y it was s i a
I had til o treat c.lassified document, by George, and it as such.
Any way.
COMMISSIONER GILINSKY:
I would Iimit it to I
requests as I th.ink we are getting into deep water if we I
go beyond that.
Lets think about it, who dould be generating I
these reports?
I
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 CHAIRMAN HENDRIE: I don'~ t know.
COMMISSIONER KENNEDY:
There aref thinktanks around town that are doing it all C~lie time.
MR. SHAPAR:
Licensing could be doing it.
CHAIRMAN HENDRIE:
Well, look,if you.think we ought to tag in here studies, reports and analyses by -- I don't know how one would put)it ~-2 NRC, NRC contkactors, licensees I
or applicants, why I have got no problem with that.
I I
MR. SHAPAR:
And they are contractors.
I CHAIRMAN HENDRIE:
That ought tolprobably well cover a good piece of the knowledgeal::>le -- of the capable community, I
and I assume that DOE and Defense and all those other fellows who might also write interesting_ things inlthis line would exercise appropriate discretion on their oin behalf.
I So I have got no objection to that.
- 1 COMMISSIONER GILINSKY:
If it were NRC-generated, I
I suppose 00we could classify* it.
MR. GOSSICK:
We can classify it, sure.
I Back on triple (i) with your sug9ested change, I don't see that it adds anything to eithet one or two.
You I
I i
Do you need triple (i) changed if you are going to I
modify it, if I _understood the discussion goin here, I don't don't really need it to make this change.
I see what it adds really to one and two -- 6ne (i) and double (i) that you have already covered.
It is reduldant.
I
-~I--
- I
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 I
CHAIRMAN HENDRIE:
That's why I ~idn't add the language in the original.
MR. REAMER:
Its:-~principal b.asis I is because as to I
production and~utilization facilities we r~~tiire a security plan relative to the facility and not the iaterial.
And so I
MR. GOSSICK: Oh, is that the reason.
MR. CASE:
Well, I assume that wluld also apply I
to repr:ocessxng.::facili ties, I don't know.
1 1
I d
th MR. McCORKLE:
It is a so our recommen ation at I
it be inserted in fuel cycJiftg~gadi~ities*fn both one and two, (i} and double (i}.
I CHAIRMAN HENDRIE:
Do you want to get conclusive:
"Security measures, including seburity plans, procedures and equipment, for the physicallprotection," okay?
I I move that be standard language in all three paragraphs.
I COMMISSIONER KENNEDY:
All right~ fine.
I I
CHAIRMAN HENDRIE:
It samply says what you mean I
I by security measures or at least in part w~at you mean by I
security measures and if that will help pe9ple, well, good.
I I
Do it all three places.
I Now, it has got an additional problem because he wants to protect the~16cations of certain tital equipment, notably, certain crucial elecrical circuitl7in reactor plants.
I I
So in triple (i} that needs another phrase after I
security measures including security plansJ procedures and
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16
- 17.
18 20 21 22 23 24 25 equipment for the physical protection.
Yo1;1 need to get I
another clause in there that says, "and lotations of vital plant equipment for".
I circuity?
COMMISSIONER BRADFORD:
Is it only in electrical I
I I
I MR. CASE:
That's the only thing1I'm worried about I
I 44 now.
MR. GOSSICK: And only location, lot characteristics I
or specs or anything else?
I COMMISSIONER BRADFORD:
What would happen if you i
said electrical circuity instead of plant equipment?
I I
MR. CASE:
Tomorrow it changes aha theny;ou have I
i got to go back to Congress is about my only answer.
I COMMISSIONER KENNEDY:
Yes, you ~eep redesigning it.
I MR. CASE:
I would really like-t0 have it a little I
I broader than that.
COMMISSIONER BRADFORD:
But the ~inute you get it I I 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
include=.::a,:J::11:1.r,ge part of the plant.
I MR. CASE:
You cbuld put vital i~ there or essential I
to plant safety, but it is still a large p0pulation.
I I
COMMISSIONER KENNEDY:
But that is governed by the I
s.uceeding paragraph which imposes upon the i Commission the I
I obligation to very* sparingly use these definitions.. :.:*..
- . ---~~~,,
I I
I I
I
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
~~
I guess it would be appropriate for the rulemaking in which public comment would undoubtedly help us improve and sharpen the application.
CHAIRMAN HENDRIE:
Can I put vital plant equipment in, locations of vital plant equipment?
COMMISSIONER KENNEDY: Well, I think vital plant equipment is pretty broad.
45 CHAIRMAN HENDRIE:
You could move along with primary system and the essential safety circuity with no question under that definition, except that you do have the other thrushold.
And I would suggest the language read -- Howard see if you could stomach this and if you think of a better way of doing it.
I will start at the top:
"Security measures, including security plans, procedures and eq~ipment, for the physical protection of, and locations" -- I think I ought to 13ay, *llcertain vital plant equipment."
To say vital plant equipment, it sounds like everything that is vital is in it and that adds the wrong smell to it -- "and* locations of certain vital plant equipment in, production and utilization facilities," et.cetera.
MR. REAMER:
In order to avoid any confusions about vital it might be better not to have it modifing plant.
Perhaps you could say, "locations of plant equipment vital to the safety of" -- that would be an option.
COMMISSIONER GILINSKY:
Well, it is really not vital,
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 it is really vulnerable, isn't it?
COMMISSIONER KENNEDY:
It is not only the vulnerabilit, but the vulnerability if exploited could result in.
COMMISSIONER GILINSKY:
I don't mean vulnerable equipment, it is the vulnerabilities of the plant.
COMMISSIONER KENNEDY:
Yes, that's correct.
MR. SHAPAR:
What you really mean is attracted to a saboteur.
COMMISSIONER KENNEDY: If he knows.what he is doing.
MR. SHAPAR:
Attraction to enlighten a saboteur.
CHAIRMAN HENDRIE:
How bad off are we with plant vital equipment or vital plant equipment?
MR. SHAPAR:
I think any general words would be workable, again ---
CHAIRMAN HENDRIE:
Well, Bill has got this concern that it sounds like a piece of vital plant equipment as something you need to make the plant work.
MR. REAMER:
I was just suggesting it, that vital modified equipment CHAIRMAN HENDRIE:
Certain plant and vital equipment?
MR. REAMER:
Well, plant equipment vital to ---
MR. SHAPAR:
Well, you don't need plant again because production and utilization facilities comes later.
So you can come right out and say vital equipment.
COMMISSIONER BRADFORD:
Bill's point is that it should
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be vital to safety.
CHAIRMAN HENDRIE:
Yes, locations:of certain plant equipment vital to safety in or of -- in, okay?
More better?
COMMISSIONER KENNEDY:
That's all right with me.
CHAIRMAN HENDRIE:
Have you got any language for the studies to get them to NRC, NRC contractors, licensees, applicants and their contractors.
I don't think we need to add more specific language for that.
COMMISSIONER BRADFORD:
You may want to authorize somebody to pull the shoe laces a little on that.
COMMISSIONER KENNEDY:
What?
47 COMMISSIONER BRADFORD:
Pull the shoe laces a little tight on this action. There were a lot of comments CHAIRMAN HENDRIE:
Yes, I totally agree.
Okay, you are not constrained from improvement of triple (i).
MR. SHAPAR:
Okay.
CHAIRMAN HENDRIE:
I detect a certain hint that you are admonished to improve triple (i).
MR. SHAPAR:
Yes, I detected such.
CHAIRMAN HENDRIE:
Now, having stuck this elaboration in to triple (i) and having limited two to the NRC down below so the regulators in the industry group rather than all the world in two, can I do without "substantially facilitating"?
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER GILINSKY:
Well, I would put it in.
COMMISSIONER KENNEDY:
It is a term of art without buying a step in the eye of the beholder.
48 CHAIRMAN HENDRIE:
I am concerned about staff ending up interpreting it to mean or somebody interpreting it to mean that that means you have to prove that a theft would occur or a diversion would occur~ or a sabotage would occur or something like that.
MR. MCCORKLE:
It is a very difficult word to live with.
COMMISSIONER KENNEDY: It is the kind of word we don't like using from a regulatory point of view, it is just not definable.
COMMISSIONER GILINSKY:
Well, what's facilitate?
CHAIRMAN HENDRIE:
If you leave it without a modifier you run sort of the recip~ocal arguement,w:p.i.ch is to facilitate means anything which gives a perceptible increase and the likelihood it will happen without regard to how small that might be.
COMMISSIONER GILINSKY:
Facilitating means to make e-asier and substantially facilitating means to make it much easier.
CHAIRMAN HENDRIE: Too much easier?
COMMISSIONER BRADFORD:
What you are really after is some increase an.d the effect on public heal th and safety.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And that's where significant pick you up.
The reason I'm probably comfortable in doing without substantially is, first of all, I have no more idea than anyone else what 49 the difference between facilitate and substantially facilitate is, but secondly, as long as you have this second yardstick about a significant adverse effect, it seems to me you are picking up pretty much the same thing, that is, a trivial increase in the facilitating, presumably doesn't add up to a significant adverse effect on the public.
redundant?
COMMISSIONER GILINSKY:
You are saying it would be CHAIRMAN HENDRIE:
Yes, I see ---
COMMISSIONER GILINSKY: Is that what you are saying?
COMMISSIONER BRADFORD:
Well, that you get at the concern with significant and by putting the word substantially in you complicate the lives of the people who have to live with it. It isn't strictly that it is redundant.so much that it is ill-defined-and if you can live without it, why introduce j
one more element of ill definition.
COMMISSIONER GILINSKY:
Well, I think they are somewhat different though.
A significant adverse effect would flow from some events which was caused in part by someone having access to some kind of information, so it is the significance *of *-the. ;.ev.erits., I thiI}k.
I suppose you could cause a melt down possibly by getting or conceivably by getting
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 information you might normally think is all that significant.
It wouldn't make all that much difference compared to what is already out in the public sector.
COMMISSIONER KENNEDY:
Would you say that again?
COMMISSIONER GILINSKY:
Yes, that's not very clear.
A significant adverse effect does not seem to me, to get at the incremental difference between that information being in the public sector and not being in the public sector, and I think there ought to be a threshold there that you have to cross before you withhold inform~tion.
In other words, the information ought to make some substantial difference to someone.
CHAIRMAN HENDRIE:
Yes.
Has anybody got ---
COMMISSIONER KENNEDY:
I'm misunderstanding, because I thought that is what the significant adverse effect is about.
CHAIRMAN HENDRIE:
It depends on whether you want to read the effect independent of the sabotage or not.
You and Peter are reading it, and I can see your reading of it that a significant adverse effect can flow either from an effect which has high consequence -- or from an act which has high consequences or from an increasing likelihood of that or other acts.
COMMISSIONER KENNEDY:
Yes.
CHAIRI"'.lAN HENDRIE:
Vic's reading it in the sense that you either facilitate sabotage or you don't and then you have
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some effect over here, some act of sabotage would have trivial effects and those aren't of interest here.
The ones that have 51 COMMISSIONER KENNEDY:
Even if they -- the possibility of their occurring wasn't in fact aided, it wouldn't make any difference.
CHAIRMAN HENDRIE:
Yes.
So what Vic's looking for is:
- a. you don't want to protect information if the only effect -- even if the sabotage occurs is trivial.
COMMISSIONER GILINSKY:
Well, that's significant adverse effect.
CHAIRMAN HENDRIE:
Right, but you also want to say, and furthermore, I don't want to protect information unless it significantly improves the chance of sabotage ---
COMMISSIONER GILINSKY:
Which are otherwise available in a different context or part of the book or whatever.
CHAIRMAN HENDRIE:
Yes.
So I can see reading it both ways.
Can you think of a word that ---
COMMISSIONER GILINSKY:
You don't necessarily need it there if you can get that thought in ---
COMMISSIONER KENNEDY:
But isn't that what is facilitating port...,o;f
- the.;art'?-:~.*- I would go back there to Peter's earlier argument, because to facilitate is to facilitate.
MR. REAMER:
You could move significant down to
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 substantially -- replace substantially with the concept that is embodied in significant up in adverse effect or you could insert something like materially facilitate in there.
COMMISSIONER KENNEDY:
How does that differ from substantially?
52 MR. REAMER:
Well, I think in terms of material versus immaterial, it is either material or immaterial.
If it is imrtlaterial it is very small, very tiny.
COMMISSIONER KENNEDY:
That's the difference between substantial and insubstantial.
MR. REAMER:
I think so too, I don't have the problems that Dr. Smith has, quite frank, I think that one can explain how one intends to construe this language.
COMMISSIONER GILINSKY:
In other words, it seems to me one could read this to say anything which would in any way assist anyone in necessitating a high consequence event would be verboten.
CHAIRMAN HENDRIE:
And we want a higher threshold than that.
COMMISSIONER GILINSKY:
That's what I think, yes.
CHAIRMAN HENDRIE:
I will propose the following abrupt reversal in a position in hopes of moving this.
My concern with the word substantially and the phrase substantially facilitated is just this concern that was expressed f.rom!NMSS that it sounds to the staff as though that
't 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 means that you have got to go and prove that will now occur or something.
If we can all understand that substantially facilitating is in the sense of more than immaterially facilitating that is, substantially facilitating doesn't mean that you have got to show that theft and sabotage will occur.
COMMISSIONER GILINSKY:
Well, do you want to use the words "much easier"?
It is not fancy language.
53 CO.MMISSIONER KENNEDY:
I must say, there is some virtue in simple ordinary English, indeed it *is understandable.
COMMISSIONER GILINSKY:
Just saying, by making theft, diversion or sabotage of such material or such facility much easier.
COMMISSIONER KENNEDY:
If that's what we mean, it woul be nice to say it 6 however unusua1_,.,.:,-_,_._
CHAIRMAN HENDRIE:
But it has got such a splendid legislative ring to it up to this point it would be out of character to say make it easier.
COMMISSIONER KENNEDY:
It would certainly be a welcome concession to the Presidents oft required improvement in the use of the language.
I like that.
CHAIRMAN HENDRIE:
Let's see.
Materially, appreciably substantially--~
COMMISSIONER KENNEDY:
Why don't you just say, "and make much easier."
1 2,
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 MR. SHAPAR:
How about 11help lots'.'.
COMMISSIONER KENNEDY:
That's not very good English.
And from you, I can hardly believe it.
CHAIRMAN HENDRIE:
How does materially strike you?
MR. MCCORKLE:
I guess it gets back to a problem.
There was an addendum attempting to explain~ I believe, what you could and could not withhold in version C, and I was a little disturbed, or most of us were with where the distinction should be made between something that would perhaps give a little bit of advantage to an adversary.
Well, if we had to release each little bit, pretty soon we would have an accumulative amount that is substantial.
And I don't know what the word materially means any more than substantially from a practical standpoint, do you?
MR. CASE:
It seems less than substantial to me.
MR. SHAPAR:
They are used in a lot of places
- interchangeably.
COMMISSIONER GILINSKY:
I think there would be a different standard for something like security measures or security plans as opposed to say location of plant equipment.
So security measures would easily pass that sort of a test.
So I don't see any great problem there, but* if they are talking about plant equipment layouts and so on, I think you do want to provide material alternatives.
CHAIRMAN HENDRIE:
All right, let me go away from this
L -- ----
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 one for the moment.
I don't know whether there is a way to reword those three or four lines in there to bring.the significant adverse effect, the facilitating, the substantial or not together in a way that provides a reasonable threshold without coming to this particular difference on the specific word, or can you think of a really fancy, ingenuous ending.
COMMISSIONER GILINSKY:
Let's see, when you identify the classification categories, confidential, secret, top secret they use to have an adjective that di~closuFe*Eo_e,this~_,inf0rmation wo~ld effect the national security and there was an adjective, a little bit, a lot.
MR. REAMER:
Yes, cause harm CHAIRMAN HENDRIE:
Good, better, best is the way Sears Roebuck use to go by.
COMMISSIONER GILINSKY:
Well, I would think you would want one of those adjectives.
CHAIRMAN HENDRIE:
Do you recall any of those?
Let me turn from this point for the moment and see how we stand on the clearance portions of the whole document.
Now, there are clearances in here in two places.
One of them is authority to require clearances for access to security plan, information and that is up in the new section 147.
The second piece of clearance authority is.for access to faciliti s and that's back in additional language in 161.
I felt that both
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 elements were of importance to have in this proposed legislation, but let me -- there has been discussion about it, let's see if can get some opinions up and down the table. on that and then we can come back to substantially.
COMMISSIONER GILINSKY:
Where is this now?
CHAIRMAN HENDRIE:
Okay, bottom of Page 2, section 147 there at B, the Commission is authorized to prescribe regulations or orders to assure that information which is protected from unauthorized disclosure is disclosed only to persons whose character, et cetera, et cetera, shall have been investigated under standards and specifications -- the standard language.
Part B of 147 does that and that is the clearance program for access to security plan information.
MR. SHAPAR:
Which dovetails with existing authority for access -- clearance for people with access to materials.
CHAIRMAN HENDRIE: Yes.
COMMISSIONER GILINSKY:
Well, I guess I would not at this point move to the clearance program to do that.
CHAIRMAN HENDRIE:
Peter, you were thinking about it.
COMMISSIONER BRADFORD:
Well, I have a similar difficulty at least with the clearance program that would go beyond the scope that we contemplated.
I am not entirely sure that I could state it accurately myself.
In fact, I would want to seek Howard's advice.
MR. SHAPAR:
I was looking around, for someone too.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 COMMISSIONER BRADFORD:
I think if one started with vital areas of NMSS you wouldn't be far off.
MR. SHAPAR:
What is the present.scope of the clearance rule, do you recall?
MR. PARLER:
It is based wholly on common defense and security grounds, the present rule, and the present law does not specifically refer to sabotage.
The proposed rule, however, relies not only on the explicit language in the statute which talks about common defense and security, but also on public health and safety grounds, which is reflected in the legislative history of the 1974 amendment to section 161.
MR. SHAPAR:
That covers SNM and what else?
MR. PARLER:
Just SNM.
COMMISSIONER GILINSKY:
Does that proposed rule cover both reactors and fuel cycle facilities?
MR. SHAPAR:
It covers both.
COMMISSIONER GILINSKY: So you regard the statute as giving us authority to require clearances for persons working in reactors?
MR. SHAPAR:
Yes.
MR. CASE: If they have access to the special material.
CHAIRMAN HENDRIE:
But that authority relates back to the access to the*~_spedial nuclear material provision which has been in the act for a long time and as you recall the
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 discussions over it~
MR. SHAPAR:
Yes.
I should also point out though ---
COMMISSIONER GILINSKY:
I am not as enthusiastic about that proposal.
MR. SHAPAR:
I should point out for completness that Peter Strass felt less secure'about that copclusion than I did.
with it.
COMMISSIONER KENNEDY:
Considerably less secure.
MR. SHAPAR:
Substantially rather materially.
CHAIRMAN HENDRIE:
That's what I was afraid of.
MR. SHAPAR:
But I think he is willing to go along COMMISSIONER KENNEDY: He was willing to go along with it, and indeed he did, despite his material reservations.
CHAIRMAN HENDRIE:
There are actually two pieces of additional clearance authority which is sought here.
One of them is access to security plans, the other is access to the facilities.
COMMISSIONER GILINSKY:
Why do we*need more authority there?
CHAIRMAN HENDRIE:
Well, I was just going to ask you to distinguish between them or is it MR. SHAPAR:
There was some argument about whether or not the act as presently constructed was really good enough, to cleanly get a sabotage ---
COMMISSIONER GILINSKY: I think in this case Peter is
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right.
CHAIRMAN HENDRIE:
The 161 provision in case Peter is right.
MR. SHAPAR:
Also, it would be expanded on 161 to get at health and safety as a basis when you consider both sabotage and diversion are involved and assuming you want to g.et-.:.at, ;the:~f.acili ties 0 CHAIRMAN HENDRIE:
Can we make any decision then between the 161 and the 147 editions on clearance ---
59 COMMISSIONER GILINSKY:
I tell you, I think what we really need is an exemption from FOIA and that would solve a lot of our problems.
I think uhat's our real problem and we don't have that covered very well as there are some problems about our ability to keep public information in our hands which we obtain from the licensee.
And we have the authority on the books to clear persons who have access this, and I think that covers people with safeguards information, but we have discussed that many times and I don't see any,need to go over that ground.
But I am reluctant to extend that authority to reactors at this point.
COMMISSIONER KENNEDY:
Then how are we going to handle it in the interim, so long as we do not have the exemption from the FOIA?
COMMISSIONER GILINSKY:
Well, we are handling it in a fashion now and have been for some time.
I think it is
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 desirable to have an exemption and then this would give you one, but I don't think we need to go any further.
CHAIRMAN HENDRIE:
Dick, how qo you come out on clearances?
COMMISSIONER KENNEDY:
Well, I am agreeable the sections to that are in this draft.
CHAIRMAN HENDRIE: Okay, Peter?
60 COMMISSIONER BRADFORD:
Well, again, to the extent it involves in the effect of backstopping the clearance rule proceeding, I think at this point the Commission is committed to that much, but I don't -- this is the point at which I come to the problem that I mentioned earlier in a different context of being unable to explain to the extent that I would be comfortable with Congress why I felt it was we need to go further.
CHAIRMAN HENDRIE:
That is the 147, access to information clearance COMMISSIONER BRADFORD:
Yes.
CHAIRMAN HENDRIE: -- program is the one that bothers you.
Let me ask a question Howard.
If, 147 B came out of there ---
MR. SHAPAR:
147 E?
CHAIRMAN HENDRIE:
B, there is no E unless you have a new paper.
The protection of 147 information would continue
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 to be -- would continue, would it not, on the basis of ---
MR. SHAPAR:
Let me put it this way, if you removed CHAIRMAN HENDRIE:
Where do I get.civil penalties and things like that -- Oh, yes.
Right above B.
Okay.
"Any person who violates is subject to civil monetary penalties under Section 234," right?
MR. SHAPAR:
Yes.
COMMISSIONER KENNEDY:
That does bring up something which I'd like to question.
Are there no c~iminal penalties?
MR. SHAPAR:
There are none in this statute as it now read~, and it is questionable whether or not the general provisions relating to criminal penalties w9uld apply to this bill.
This is one of the questions I flagged for the Commission in an earlier paper saying that the Commission might want to consider criminal penalties and that the draft was being constructed only on the basis of civil monetary penalties.
There was never any indication that you wanted to strike out any for any unambiguous authority with respect to assessing criminal penalties here.
It would be very ~asy to do if you wanted to do it.-
COMMISSIONER KENNEDY:
Against who would the civil monetary penalties be levied?
Individuals? Institutions with which the individuals are associated?
In other words, is it the licensee who is going to be ---
MR. SHAPAR:
And anybody else who disclosed the
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 information who acted contrary to the rule.
As you recall, the rule has been broadened to apply not only to the licensees, but to anybody else who might have that information.
COMMISSIONER GILINSKY: So a licensee's employee could be punished?
MR. SHAPAR: Yes.
COMMISSIONER KENNEDY: Yes, as an individual, and am I correct, this is a new departure for the Commission.
MR. SHAPAR:
Yes.
Under existing case law the conventional wisdom*: is that the Commission in exercising its regulatory authority, that authority is restricted to persons that the Commission licenses, and it doesn't have regulatory authority generally speaking, over people it does not license.
So one of the reasons for one of the changes here is, again getting back to the discussion that Commissioner Gilinsky mentioned earlier about other people, other than licensees having the information, this statute would make it clear that it applies just not to the licensee.
If it didn't do that, then the only people that we could fine or take action against would be the licensee himself.
COMMISSIONER KENNEDY:
Well, that's a very much broadened authority to the Commission
- well, the authority of the Commission extends much further now with this concept than they ever have?
MR. SHAPAR:
In the limited context of the subject matt r.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 COMMISSIONER KENNEDY: Yes.
MR. SHAPAR:
I would also add that if you took out you could still protect the information in two ways.
Number ne, you could classify it if you wanted to, and number two, ou could require the licensee to protect it and to use only rustworthy people which would mean that presents certain roblems too.
You are requiring, in effect, the licensee to un a trustworth~ness program.
COMMISSIONER KENNEDY:
Not only that, if it is lassified information the people handling it need to be leared.
MR. SHAPAR:
Well, I was using that as alternatives.
If you classified it, I think I wouldn't do it.
CHAIRMAN HENDRIE:
The purpose of this legislation in art is to avoid classifying information as national security information.
So I certainly wouldn't go that direction.
he Commission could very well write rules and implementation of this section which would require licensees not to disclose this information to persons other than regular employees of ood standing and persons whom the licensee has good reason to believe would not disclose and so on and so on.
MR. SHAPAR:
Right, and at one point you might get to a point where people would reasonably argue that since you don't have authority to run a full government clearance program in the statuteJ you can't do indirectly which you can't do
L 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 directly.
Now, it is a tricky area.
CHAIRMAN HENDRIE:
I would think we could require licensees, for instance, to implement ANS~- what is it, 18.7 and limit access to the information protected here to, regular employees hired al}d.c._measur.ed<*agains b-,tha t standard.
MR. SHAPAR:
I think you could too, and that is my opinion.
I was merely point out there, crnuld be a counter argument.
MR. McCORKLE:
Well, Howard, from a practical standpoint, isn't that the trouble with the Privacy Act in complying with that?
MR. SHAPAR:
It has been a problem.
MR. STO.I_BER~
I hate to muddy the waters here, but as an old thing to a lawyer, it seems to me that under Section 223 if you have a violation of any of these sections willfully or through conspiracy you automatically--~
MR. SHAPAR:
There is a problem with that and we have looked in to it.
Why don't you menti?n it, Bill?
MR. PARLER:
The problem with Section 223 language as drafted now is this:
Section 223 specifically refers to certain sections of the Act which are willfully violated and it also specifically refers to willful violations of regulations that are issued under certain sections of the Act, namely, Sections 65, 161B and,~1i).
The section that we are talking about, Section 147
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would not itself create anything that the violation of the thing in the section would present the problem, what would 65 be violated would be a regulation issued under this authority.
curing it.
CHAIRMAN HENDRIE:
I know a way to cure that, I think.
MR. SHAPAR:
Yes, there is a very easy way of MR. STOIBER:
But you have to read the statute more carefully because it says, "whoever willfully violates, I
attempts to violate or conspires -to*.viblate*
- any provision of this act for which no criminal penalty is specifically provided or for any regulation in order to prescribe,"
so that "or" there makes any violation of the provisions of the act a criminal violation.
CHAIRMAN HENDRIE:
Furthermore, I point out that a *recent employee of the Commission found a way to deal with this, you could have a provision that says, for the purposes of Section 223 of this Act, any regulations or orders prescribed or issued by the Commission under this section, i.e., 147 shall be deemed to b~~r*acribed!or issued under Section 161B of' the Act.
MR. SHAPAR:
Which would be completely remove the question.
CHAIRMAN HENDRIE:
Which would completely remove the question and then make it the criminal sanctions of 223 available for the violation.
Now, I must say I would rather
L _______ -
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 66 have the whole shebang, but if I could put together three votes in favor of everything here except 147B, why I would like to try to do that and make it the Commi~sion's position and move forward on that basis.
What would you think of that?
I'm not going to look at you, you are obligated to vote no on it any way.
(Indicating to Commissioner Gilinsky.)
Would that be acceptable Peter?
COMMISSIONER BRADFORD:
Yes.
COM.MISSIONER KENNEDY:
What are we going to eliminate?
CHAIRMAN HENDRIE:
I make the following proposal then that in the draft paper, 611D, first, that where* in (i), (ii) and (iii) it refers to security measures that there be that phrase, "including security plans procedures and equipment,"
to follow it.
That in (iii) after "physical protection of" there be, "and. Ioeations* o;f,*cer:tain plant equipment vital to safety in," and then go on to "production and utilization facilities."
That in Paragraph 2, immediately following (iii)
"the study reports an analyses" language be added to make clear that these are studies, reports and analyses of NRC staff, NRC contractors, licensees of the Commission, applicants for licenses for the Commission or their contractors.
Can anybody think of any other?
MR. REAMER:
Agencies may be useful.
MR. SHAPAR: Or we could use a*general phrase like
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 licensees and applicants in NRC and persons acting on their behalf or something like that.
67 CHAIRMAN HENDRIE:
Right.
Now, with regard to each of these additions or corrections that I have made, why perfect the language if you please, as you.have just suggested in the latter case where I didn't have it that explicit.
I'm going to ask that we go without "substantially" down in the threshold paragraph retaining the language, "could have a significant adverse effect to the health and safety of the public and the common defense and security by facilitating theft, diversion or sabotage," et cetera, et cetera.
Next, that we strike Bas it stands in Section 147, bottom of Page 2, top of Page 3 and substitute B language for which we are indebted to Senator Glenn and his staff,along the lines, "for purposes of Section 223 of this Act any regulations or orders prescribed or issued by the Commission under this section shall be deemed to be prescribed or issued under Section 161B of this section," it is down ---
MR. SHAPAR:
I've got it.
CHAIRMAN HENDRIE:
So now we protect this information not on the basis of the clearance program,.but on the basis of civil penalties if you breach it and criminal penalties whether it is willful or whatever.
COMMISSIONER KENNEDY: Which does not, of course, protect them from the FOIA, if I am correct, right?
J
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 68 MR. SHAPAR:
No, we have got that protected under--
the way it is drafted under A of 147.
MR. CASE:
How does the hearing situation work?
MR. SHAPAR:
That's taken care of later under the amendment of 181.
CHAIRMAN HENDRIE: Yes.
Now all of the rest of 611D I would propose that it just stand as it is.
COMMISSIONER KENNEDY:
You mean this Section 2?
CHAIRMAN HENDRIE:
Section 2, Section 3, Section 4.
Okay, now what that does is to put the access to facility clearance for health and safety reasons, Peter, in to 161 with the buttressing of the authority, for instance, for
~ulefnak::j;:hg.,cue =c,:,, *,
- COMMISSIONER GILINS*KY: Okay, what are the extra words there?
CHAIRMAN HENDRIE:
The extra words ---
MR. SHAPAR:
The only change at 161 (i) was just the deletion of the phrase, "and licensed by the Commission"~
CHAIRMAN HENDRIE:
No, no.
The additions to 161 are like this; Vic.
You put in --
this is a complete text of the same thing, I think, and what has been put in is to insert ---
MR. REAMER:
Insert sabotage, extend the materials covered source ---
COMMISSIONER KENNEDY:
Where?
1 2
3 4
5 6
7 69 MR. REAMER:
Section 2, 161(i).
COMMISSIONER KENNEDY:
Yes, and where do you put that?
MR. REAMER:
In the first line.,
COMMISSIONER KENNEDY:
"regarding its loss, diversion, or sabotage,"?
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 18 19 20 21 22 23 24 25 MR. SHAPAR:
You haven't heard about the AMP program at Idaho and ---
COMMISSIONER KENNEDY: Yes, I have, but I don't think that was intend~d here.
CHAIRMAN HENDRIE:
If offshore ever gets one on a barge, why, Vic, we will have to go down and ~atch it floating out the inlets into MR. SHAPAR:
We look forward to all contingencies.
COMMISSIONER KENNEDY:
Meanwhile back in the real
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 world, I think the phrase is in the wrong place in the sentence.
70 CHAIRMAN HENDRIE:
And then -- so typically, sabotage and health and safety are the additions of 16l(i) which cures the Strass MR. REAJYIER:
That would be cured.in 2 (i). One (i) is general rulemaking authority to impose safeguards requirements involving materials against certain threats.
Two (i) deals specifically with the clearance program.
CHAIRMAN HENDRIE:
Yes, ---
COMMISSIONER KENNEDY:
The second point -- I'm sorry.
MR. REAMER:
Two (i) deals specifically with the clearance program extending it to explicitly cover sabotage, other materials other than special nuclear material on the basis of both common defense and:.securi ty and public heal th and safety.
CHAIRMAN HENDRIE:
Okay. Do we have an understanding?
Or do we understand what's proposed, let me ask that first.
(No response)
Does the B paper have a comparative text of the proposed and original 161?
MR. SHAPAR: Yes, it does.
COMMISSIONER KENNEDY:
It is the D paper, appendix B or attachment B.
CHAIRMAN HENDRIE:
No, that's comparative text from B
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to C.
MR. SHAPAR:-
You are asking about 77.611B, right?
The B version of the legislation?
C.HAIRMAN HENDRIE: Yes.
Does that have a narrative of 161 against ---
Here's a better one, Vic.
COMMISSIONER GILINSKY:
Well, I ~ould not care one way or the other.
71 CHAIRMAN HENDRIE:
Is the proposal to change clear, Peter?
COMMISSIONER BRADFORD: Yes, the only point here that as to (ii) to the extent that it-- I'm familiar with the general rule, but to the extent the source material and byproduct material may not be within the clearance rule, I would have some difficulty explaining why that authority were necessary.
I'm not saying at this point that I oppose to having it in here, I am saying that if it were out so that we would have reason to believe that we need security clearances for people having access to source material, I would have to say I don't have much evidence of that.
COMMISSIONER GILINSKY:
Why don't you drop it?
CHAIRMAN HENDRIE:
Well, there was discussion of dropping it in 147, but leaving it in here.
MR. REAMER:
The,current clearance rulemaking is tied to access to special nuclear material.
MR. SHAPAR:
Because that's the way the statute now
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 72 reads.
CHAIRMAN HENDRIE:
Yes.
MR. REAMER:
So I couldn't see any circumstances that it would be construed to source material.
It indirectly applies to byproduct material and the two * *i go,,. together.
CHAIID!iAN HENDRIE:
Did we contemplate the spent fuel would come under the special nuclear material umbrella?
MR. REAMER:
I would like the opportunity to check that, *but I believe that we did, spent fuel in transit or in storage.
MR. SHAPAR:
Spent fuel is generally regarded for the purpose of our rules as SNM, although it does contain others too.
CHAIRMAN HENDRIE:
How about separated waste and so on, then it becomes a byproduct.
Is it a concern that would COMMISSIONER BRADFORD: To me, no. If it is a situation in which you asked if I thought it ought to be in there, I'd say no.
So I suppose if you are asking me whether it would tip me.to vote against the whole proposition, the answer to that is no.
Whether I personally think it ought to be in there, I would drop source material in that particular instance, in (ii).
MR. REAMER:
But not in (i)?
COMMISSIONER BRADFORD:
Yes.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN HENDRIE:
I see.
The other place it appeared was in 147.
73 COMMISSIONER GILINSKY:
What are:we talking about ther?
CHAIRMAN HENDRIE:
Do you know whether DOE would 'have any problem with that*if we dropped source material?
MR. SHAPAR:
The only place that.they are concerned about is 161(i)l and that is the one part that we have been discussing.
It provides authority for both DOE and NRC.
CHAIRMAN HENDRIE: And that one, you said you would leave in any case.
material?
correct.
COMMISSIONER BRADEORD:
COMMISSIONER KENNEDY:
MR. SHAPAR:
Just (i).
(Nods in the affirmative.)
161(i)l?
COMMISSIONER GILINSKY: Does it now have source MR. SHAPAR:
No, it does not.
COMMISSIONER KENNEDY:
No, it does not.
That's MR. SHAPAR:
The only section that I know of that has given DOE concern was the initial part of 161(i) and the concern they had was the phrase, "and licensed facilities."
So I can't think of anything that you are doing here that would concern DOE as long as that phrase is taken out.
CHAIR1"1AN HENDRIE:
Yes, and which it is sticken.
MR. SHAPAR:
And license facilities or licensed by
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 74 the NRC, something like that.
COMMISSIONER GILINSKY:
Now, wait a minute.
Does that mean have -- it is clear that we only.have authority over our licensees?
COMMISSIONER KENNEDY: It should be.
COMMISSIONER BRADFORD:
Are you asking what DOE was concerned about?
CHAIRMAN HENDRIE:
No, we have control over our licensees and those other activities assigned to us by the Energy Reorganization Act and the nature of the changes here as 161(i) exists now, and it has that same sort of language in it, and both we and DOE operate on this authority and there isn't a problem with whatever that means that we regulate over their things or whatever, and there isn't any more or less of that problem.
I don't think it is a problem.
Now, do you have a problem with deleting source material?
COMMISSIONER KENNEDY:
Yes.
CHAIRMAN:.~ HENDRIE:
You would like to keep source material -- if it doesn't tip may we leave it?
COMMISSIONER BRADFORD:
Yes.
As a practical matter I would say you ought to require clearances for truck drivers with source material trucks is pretty far away.
CHAIRMAN HENDRIE:
I don't know, if you talk to Congressman Worth about that yeilow cake incident, why
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 75 COMMISSIONER BRADFORD:
Well, he might want to require a divers license.
(Laughter)
CHAIRMAN HENDRIE: Yes, what was it?
MR. SHAPAR:
Boogieing down the road.
CHAIRMAN HENDRIE:
Okay with soµrce material in and with the changes I proposed, do we understand the proposition?
MR. SHAPAR:
Source material in in all places?
CHAIRMAN HENDRIE:
Yes, including 147.
I assume, Vic, that your agreement with this could only go as far as 147?
COMMISSIONER GILINSKY:
Section one here, would that apply to clearances?
1 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 everybody-on-board vote?
(No comment)
Good, let me ask it then.
COMMISSIONER GILINSKY:
You are taking source I
material out of that one too?
I 76 I
CHAIRMAN HENDRIE:
No, sir, I haven't I left it in.
I COMMISSIONER GILINSKY:
Well, I *ould take it out.
I Why don't you just go ahead, I'll write my1own.
CHAIRMAN HENDRIE:
I Okay, can I pull you along, I
Peter; and get three votes for 147?
COMMISSIONER KENNEDY:
How do y.oq. know you have got mine.
I CHAIRMAN HENDRIE:
I'm going to ask that in a minute.
I'm savingC~b:U for a reserve.
COMMISSIONER KENNEDY:
COMMISSIONER BRADFORD:
leaving ~-substantially out the facility?
You had better count for ait You are hhis point I
two.
CHAIRMAN HENDRIE:
Yes.
COMMISSIONER BRADFORD:
And there. mc1y be:-: some way to make everyone happier with that section,!
i but I can live with it with the word substantially out.
2 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER KENNEDY:
What is it that you want to I
do with the substantia.lly.?.c_:_,_Do'iyou want to i find some other word?
I I
CHAIRMAN HENDRIE:
Well, if there were a way to i
I rephrase that sentence in the threshold paragraph to gather the significant.~and the substantially together in one place and provide a threshold that didn't seem t6 give the staff I
I a )problem on w.hat:,.I see as the proof standards, why I would I
be glad to consider it.
I However, Peter is willing to go*tithout the I
substantially if nothing particularly attractive shows up by the language perfecters, who would be al combination, I I
would'..assume of Howard's office and OGC.
COMMISSIONER BRADFORD:
Let me j~st ask one of the I
I possibilities that you consider, and that's unless you can I
I 77 come to it right now, just running from th~ word "could" down t
th d
1 d
h.. l'k' II ld" d
o e secon cause an say somet 1ng 1 e cou an I
I don't really care whether it is significantly or substantially, I
increase the possibility of theft, diversitn or sabotage.
Drop everything about the significant adverse effect against I
I the common defense of security you would o,ly have to make the measurement once.
MR. SHAPAR:
How would COMMISSIONER BRADFORD:
substantially orcsome,:'other word, that read again?
I Significantly or increaselthe possibility
3 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of theft, diversion of sabotage of such material at such facilities.
MR. REAMER:
So there would be three changes.
Deletion of have a significant adverse,,affect on health and safety of the public in the common defense and security by -- is that right?
COMMISSIONER BRADFORD:
Yes, by facilitate.
MR. REAMER:
Yes, and you replace facilitate with increase the possibility of and you would use either significantly or substantially ~o modify-~-
COMMISSIONER BRADFORD:
Or some other adverb.
MR. SHAPAR:
I think it has promise, why don't we see if we can draft something along those lines.
COMMISSIONER KENNEDY:
And then let's see what the effect of leaving out reference to the public health and safety in the common defense of security COMMISSIONER BRADFORD:
That's in two lines above was why I was going to drop it.
CHAIRMAN HENDRIE:
It does appear above and that's a help in terms of COMMISSIONER KENNEDY:
Currently there are two determinations to be made.
We are now ordering that only 78 one determination should be made for this language, and I guess I want to know what the impact of that is.
Without.-
making a health and safety of common,
4 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 79 defense and security determination any more with that language.
MR. SHAPAR:
Of course, it does state in the earlier sentence of what the objectives COMMISSIONER KENNEDY:
Yes, I know, but stating the objective is one thing.
Requiring a determination on the part.*of.the staff or the Commission is quite another thing.
MR. SHAPAR:
I think it is a reasonable argument, but the only basis in which we regulate is common defense of security-and health and safety.
We stated those as the objectives.
The ~epetitionof it later on was more in the category of crossing the i's and dotting the t's, although it made it clearer.
CHAIRMAN HENDRIE:
Think some about that.
I know what Dick is getting at.
There may be a difference in the thrust of a finding that is made with and without that reiteration of the health and safety clause, but let us regard that as a possible language variation to be considered.
With that understanding, do you suppose I now --
can I ---
COMMISSIONER KENNEDY:
Not until I see it.
CHAIRMAN HENDRIE:
Can't we vote agreement in principle with the changes?
COMMISSIONER KENNEDY:
We haven't decided what the principle is in that regard, and I think that was one of the main issues of discussion all afternoon.
Until we have
5 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some idea of what that is, I don't think we have reached an agreement in principle.
At least that's my view.
So therefore, I'm not voting.at this point.
80 CHAIRMAN HENDRIE:
Well, that washes out the effort.
Sandy, I guess you had better tell them down there there won't be anything forthcoming from the Commission in the near future.
COMMISSIONER KENNEDY:
There is no reason in the world why we couldn't.
How long is it goi~g to take them to draft?
CHAIRMAN HENDRIE:
It will be three weeks before this Commission can gather again on this in the future.
COMMISSIONER KENNEDY:
The°Commi~sion is going to be meeting tomorrow, I was told.
CHAIRMAN HENDRIE:
I didn't expect you to join us.
COMMISSIONER KENNEDY:
I didn:'.t indicate that I wasn't joining you.
I just think this language here ought to be looked at, we ought to know what the impact of it is, we have discussed the subject the whole afternoon.
CHAIRMAN HENDRIE:
We have a meeting for tomorrow morning scheduled at 9:30, it will run an hour.
I don't know whether you can stand another session to follow that one on* this subject or not.
COMMISSIONER BRADFORD:
I can.
Now, we have already, of course~ run through a_licensing. session this
6 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 81 aftet:noon;~~::_lli_,.wonder what you are going to do with that?
CHAIRMAN HENDRIE:
L.had hoped vlry much to I
complete this and was willing to shoot_ thel time in to it, I
the licensing session with a considerable testimony session i
to follow..
I I COMMISSIONER BRADFORD:
I can stand another session I
on whichever or both,if you would like, to~orrow.
I just i
didn't want to raise the second matter als6.
I CHAIRMAN HENDRIE:
Your time is pretty well run I
out this afternoon, is it?
. I I
COMMISSIONER' BRADFORD:
I have s~mebody waiting I
I in my office.
I could come back but not for too long, to i
about 4:30.
COMMISSIONER GILINSKY:
also.
COMMISSIONER KENNEDY:
I I
I'm goinJ to have to leave I
.. I.
I have another question I I
I would like to get answered before I stop, and that is, what I
is the effect of this proposition with wha~ever language on I
this other question, what's the total effedt of this on the on-going hearings on ~e clearance rule?
I MR. SHAPAR:
My view is that thisl doesn't have a significant effect on the hearing rule.
I We 1 can make that I
clear in,_ ':)?g)?lic'*:1.~-,statements.
rule under the existing statute.
a change in the statute and it is We are is~uing the hearing I
That's cl~ar.
If we propose hanging f~re, we can publicly I
I I
i
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7
articulate the basis for which we I
I i
forwarded the legislation I
I 82
'1 to the Congress, an~ although one could dr~w other arguments, maybe contrary arguments, my own personal tiew is that it should I
not have a significant effect.
I i
COMMISSIONER KENNEDY:
But the fact that we ha.ve transmitted to the Congress,vd:.ews- -as_ }:o cettafn"-c1earahce 1
- procedures, haven't we then in a sense for~closed some I
range of option before the Hearing Board ?i MR. SHAPAR:
I think you would hive to look at the I
particular segment of the bill that you haye in mind, the I
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 i
under the existing statute it would only a~ply to licensees and it would go no further.
S.o I think yoJ have to look at I
individual segments of the bill.
My own view is I don't i
believe it has a::..~igriif.icant impinging effJct on the on-going I
hearing.
\\
I COMMISSIONER KENNEDY:
Do you hale a side view?
MR. REAMER:
Well, I think it deRends very much on the way in which it is presented to the Congress.
If it is presented to firm what we think is existing authority for what we have on-going, I thijk the impacts are I
substantially less to the extent that the p!roposal goes beyond what we are currently doing and we seem to re seeking new authority and express doubts about existing: authority then I I
I.
think it could cause a very important probliem.
8 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 83 I am looking at it soley from thel standpoint of whethe or not what that report is doing right now, is author"ized by I
law and what this Commission might do in approaching new I
I authority that might either cast doubt on -that authority or I
not cast doubt.
If one were to propose this authority as I
confirmatory, I think it casts less doubt 1-,har:i, qf_~ha:t roles
. or, app:r:oach-~::yoµ '_; are going to take in that manner.
I COMMISSIONER KENNEDY:
So you are saying it depends I
not upon -- if I understand what you are.. s~ying -- you are I
saying it doesn't depend so much on what ttlis actually is, but rather how we portray it, and that I find lsomewhat ---
MR. REAMER:
Right.
j We have to live with the law as *tis now.
There may I
be weaknesses in that law and that's the wJy the situation will remain unless the law is. changed.
I_f we go forward with an amendment that expresses doubt about existing authority I
in certain areas, expresses a belief that Jbsence of authority I
on those areas and fail to get it, then ou7 argument that I
existing authority authorizes what that He~ring Board is doing I
is less drawn than if we propose legislati4n as the Commission states that we believe that we have the autjhority for what the I
I Board is now doing; that this legislation ils intended to clarify that authority and not to seek new ~uthority then I I
I think the doubt is less substantial bearin~.
But still ---
1 COMMISSIONER KENNEDY: But there r[emains doubt?
I I
I
\\,
9 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 84 MR. REAMER:
There remains doubt..
If the Congress does not act and tries to construe that that means, the general rule is when an agency seeks legislation to confirm existing authority and doesn't get it, that does not necessarily mean that the Congress had said you do not.have this authority.
It is ambiguous, the Congress in effect may be saying we think you have it under existing authority.
COMMISSIONER KENNEDY:
And therefore you don't need any clarification.
MR. REAMER: It is very much the way the Commission casts its own view of its: 'existing authori t.Y.
COMMISSIONER KENNEDY: So what is.equally important as to the draft which goes forward is the statement that would accompany it.
MR. REAMER:
Yes, sir.
In my view it is.
COMMISSIONER KENNEDY:
And has that been prepared?
MR. REAMER:
I don't believe that:'.it*has.
COMMISSIONER KENNEDY:
Okay.
MR. REAMER:
Although one could certainly pose the question, what *is.the view of this Commission on its existing authority and what is the view cif.the Commission on the objective of this proposal.
And if there is a consensus that that objective is to confirm, then the writing of that position is not a substantial problem.
COMMISSIONER KENNEDY:
Those are questions that ought
10
- 1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be answered too, you are saying, before 1 anything is submitted.
i I
r MR. REAMER:
It would be good to/answer them.
I CHAIRMAN HENDRIE:
Well, it is c.:J_ear that this i
package does several things as part of its/terms, but it I
also adds authori.t:y, the whole section 14 7 I is clear I
I addition.
There is a piece of the 161 chaige which we I
regard as confirming and clarifying existi*g authority and i
there are other parts of 161 regarding extension.
I MR. SHAPAR:
But I think Mr. Ken~edy's question I
was asked in the context of what effect itlwould have on the I
I on-going hearing on the clearance rule.
My answer remains I *
.the same, very little as a reasonable practicality.
I CHAIRMAN HENDRIE:
Tomorrow morning what shall we do.
Can you stand a meeting at about 11:0~ to 12~00?
I COMMISSIONER GILINSKY:
I think. I COMMISSIONER BRADFORD:
(Nods inlthe affir=tivef COMMISSIONER KENNEDY:
It is goi~g to have to be I
a short one.
As far as I'm concerned it will be if I have I
seen the language.
COMMISSIONER GILINSKY:
What is the problem here, I
is it the changing the adverse effects or 1
I COMMISSIONER KENNEDY:
It is the1center part 85 surrounding the question of s~bstantially.l We had an hour and twenty minute discussion on substantia,ly, materiality and I
I i
I I
I I
l
11 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 so on_,;,.._
I I
I COMMISSIONER GILINSKY:
write another draft?
And Howard is going to i
MR. SHAPAR:
We are going to I
I approach I
I trying to carry forward an idea that Commissioner Br~dford suggested.
I COMMISSIONER KENNEDY:
Which would be deleting a I
whole piece of that and I wanted to be surJ of two things:
I I
One, what it looks like after we!do it; and two, I
what the effect is of eliminating the refetence to the I
determination that the public health and safety and common defense and security are affected~.
COMMISSIONER BRADFORD:
I need t6 go for a while, I
I will need some time, but the other pointiand perhaps I I
I I
explained it, I hadn't intended -- as I indicated before, I I
i 86 could live with the:'.language as you propos~d it.
I threw that other out just because the~~~were~stiili~~-Jeneral dissatisfactio
- I I thought that might help.
If there is some way of agreeing I
I on the language as it is at a minimum, unless people uncover a better alternative, I would be certainly lbe wi1ling to leave it as is.
I I
COMMISSIONER KENNEDY:
Whether itl says substantially I
or not.
1 I
COMMISSIONER BRADFORD:
If IJunderstood what Joe_
proposed, it did not, but it does say sign~ficant adverse I
effect three lines above.
12 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 87 COMMISSIONER KENNEDY:
Yes, the way it was proposed in the draft.
Well, if we,_.are::not:*g9ing to.reexamine*that, then I would go along with it.
CHAIRMAN HENDRIE:
Can you live with that?
COMMISSIONER BRADFORD:
I can live with it, I was suggesting that it might be worth the effort to circulate the other ideas.
COMMISSIONER KENNEDY:
I can live with it too, but I don't want to vote for something I don't even know what it is or what its effect is until we look at it.
COMMISSIONER BRADFORD:
Well, let's agree to live with that, or at least I guess the three of us can live with that, but go ahead and circulate whatever better language occurs to you and we can ---
COMMISSIONER KENNEDY:
Together with an estimate of what the effect is of leaving out the determination, the determination which is rather typical throughout all our statute.
What, the determination that we are usually called upon to make is that it is in the public interest, public health and safety will be protected and the common defense and security and we are leaving that determination out now.
Whether that has any affect.
MR. SHAPAR:
Leaving out the specific reference in the determination1;to health and safety,and common defense and security.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER KENNEDY:
Yes.
CHAIRMAN HENDRIE:
But the proposition would be to agree that failing agreement on some alternate language that;.the present language would stand?
COMMISSIONER BRADFORD:
Yes, to yes.
COMMISSIONER KENNEDY:
And then how is this going to be put forward, and what manner of statement will be made
.on behalf of,rthe Commission as it. is:: forwarded, and who* is
- going to write Ehat?
CHAIRMAN HENDRIE:
There will be a draft letter which I would ask again, the combined legal talents of the agency to produce forthwith.
88 COMMISSIONER KENNEDY:
Am I correct, Bill, in going back to what you said there are a couple of questions that would be useful to the Commission to answ.er for *you.before d~aftin.g, that,,:o~:~.am~,I reading something wrong?
MR. REAMER:
I don't think I have a question, that it was your intention that it be embodied in 161(i)l(ii) dealing with security ~learances for access to material or facilities.
The intention underlying that and the objective is to confirm the authority underlying the current clearance rulemaking.
COMMISSIONER KENNEDY:
Right.
That*is what we would say. Is that correct?
MR. SHAPAR:
I think so.
14 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER KENNEDY:
We are simply asserting that that is our understanding of our present authorities and all this is is a clarification, not an.extension.
Is that correct?
COMMISSIONER BRADFORD:
As to that section?
COMMISSIONER KENNEDY:
Yes.
MR. SHAPAR:
Well, it doesn't pick up the other materials, does it not?
CHAIRMAN HENDRIE:
You have to accept the other materials, so there is an extension in this.
MR. SHAPAR:
But that should not create a problem for the hearing.
COMMISSIONER KENNEDY:
That does:not apply to or affect the rulemaking.
CHAIRMAN HENDRIE:
That's correct.
The language here as it applies to the rulemaking 89 is by way of confirmation and clarification of what we believe the Commission's authority to be in that area, that area being specifically a rulemaking area.
Now, the.. legislAtive~proposal goes on and asks for extensions of the Commission's authority in several areas, back in that same section there is an extension, now we have got other materials in the language now and so on.
Now, when I started out I thought maybe I was going to get Commissioner Gilinsky on board for 147, but I wasn't
15 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 90 successful there.
Let me ask for a vote on 147 with the changes as proposed.
I don't want to reiterate them.
There was the thing I previously ran through and*then the subsequent agreement on the threshold sentence ---
COMMISSIONER KENNEDY:
And with B deleted.
CHAIRMAN HENDRIE:
And with B deleted as it was in the paper and the substitute B which confirms the criminal sanctions ---**'"
place.
COMMISSIONER KENNEDY: Yes.
CHAIRMAN HENDRIE:
- -"--:.for breach of information.
MR. SHAPAR:
Though it may not gq precisely there.
CHAIRMAN HENDRIE:
All right, let me not be the ---
MR. SHAPAR:
Okay.
CHAIRMAN HENDRIE:
Okay?
You may do it some other MR. SHAPAR:
Right.
CHAIR.Ml\\.N HENDRIE:
Okay, all in favor of that?
(A chorus of Ayes)
CHAIRMAN HENDRIE:
By George, a vote of 4-0 on 147.
Take back what I said previously.
Please go and tell the Senator that the Commission has mandated this thing.
Now, with regard to the balance of the paper, specifically the sections on 16l(i) on 181 and on 274(m) and whatever you do about this 233 criminal thing, may I ask for
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a vote on those as proposed here?
COMMISSIONER KENNEDY:
With the modest revision of the present strange language on Page 3 that perhaps the production facilities are not being transit on a regular basis.
MR. SHAPAR:
R.ighto:
CHA.IRMAN HENDRIE:
All right.
This is the stuff with the clearance business in it now, so you are going 91 to vote no, Vic, and Peter, are you going to ---
COMMISSIONER BRADFORD:
I will give you one finger.
CHAIRMAN HENDRIE:
A one-finger vote, by George, if I can get a finger in, why that's it, 3-1 on the balance of it.
COMMISSIONER BRADFORD:
You can have all the fingers when you pick up the source material.
CHAIRMAN HENDRIE:
You stili want to do that.
I'd better not disturb the balance, I've got a vote.
So ordered, okay.
Now, do you know what you have got to do?
MR. SHAPAR:
Yes.
COMMISSIONER KENNEDY:
Let there be no misunderstandin in the source material.
I agree with you that this is not a problem we are dealing with today, but neither do I think any of the problems that we are dealing with today are going to be gone tomorrow and I don't know what the meeting is
17 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to be tomorrow, but I think we ought to be at least i
in a position to deal with them rather than have to go up I
and explain why we can't.
That's my reasobing.
I CHAIRMAN HENDRIE:
Okay, now you know Yes, a guestion?
MR. SHAPAR:
One question.
Do y0u still want to I
see the alternate language with respect toll substantial or not, I'm not clear on that point.
I CHAIRMAN HENDRIE:
Yes.
If it l0oks good and we I
I can agree on it, the three of us -- the fo~r of us now --
if we can agree on it we will substitute ii.
If we can't I
agree on it, the as-written will st~_n.d--.
MR. SHAPAR:
All right.
i I
CHAIRMAN HENDRIE:
But I think it woµld be useful to see the thing rewritten with the changel as soon as possible.and we need a draft transmission. i I
11 h
1 I
MR. SHAPAR:
We
, t e usua tra:ro.sm1ss1on, as you I
92 know, is a rather elaborate product.
We c1n give you truncated i
version.
It means a section-by-section analysis, comparative I
text and it is-going to take a while to do lit.
If you want to take a shortcut we will try that.
CHAIRMAN HENDRIE:
I need somethfng in a hurry and I
I the rest of it can follow as soon as possi~le, right?
I COMMISSIONER KENNEDY:
In a section-by-section i
analysis and the rest of it could follow, but I* would,;think
18 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the transmittal would at least state the Commission's understandings under which you are sending it forward, so there is no misunderstanding on that end, for example, vis~a~~is the hearing.
93 MR. SHAPAR:
Okay, we will have the draft language tomorrow.
CHAIRMAN HENDRIE:
We need to get down there the langµage the Commission supports, right?
MR. SPECTOR:
Yes, L'.think_:the particular deadlines for the mark-up on the bill that you are concerned about may have passed already, but at least there will be another round and there will obviously be further opportunities in the future and perhaps future years.
COMMISSIONER KENNEDY:
Sometime during this century.
MR. SPECTOR:
When it comes to-tbe floor, there will be an opportunity to adjust existing amendments to meet the Commission's request.
CHAIRMAN HENDRIE:
But obviously contemplation of that possibility is considerably improved as we get on down and let people.know what the thrust is.
MR. SHAPAR:
So we can just give you the language of the bill agreed upon without the trappings of a formal packa~e, is that your suggestion?
MR. SPECTOR:
I was actually suggesting the other that the additional three or four days it ~ight take might be
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well spent to get the complete package that would spell out everything.
94 CHAIRMAN HENDRIE:
All right, fair enough.
COMMISSIONER KENNEDY:
That's what I thought you would say.
MR. SHAPAR:
He gave the wrong answer.
CHAIRMAN HENDRIE:
Okay, what do we have to do on the agenda?
(Whereupon, the Commission moved on to other business and the above entitled meeting was concluded at 4:25 p.m.)
J