ML19337A385

Transcript of 770603 Discussion of Proposed Commission Legislative Program in Washington,Dc.Pp 1-51

ML19337A385
Person / Time
Issue date:	06/03/1977
From:	NRC COMMISSION (OCM)
To:
References
REF-10CFR9.7 NUDOCS 8009090641
Download: ML19337A385 (53)

Text

. - _ _. -__

's s.

a

,?

NUCLE AR REGULATORY COMMIS$10N C.

3..

4 IN THE MATTER OF:

s, Discussion of Proposed Cormission Legislative Program Place -

Uachington,'D. C.

Date -

Pages-Fridcy, 3 June 1977 1 - 51

.(

l r.l. phon.:

(202)347 3700 ACE - FEDEB AL REPORTERS,INC.

OfficialReporters 444 North Capitol Street Woshington, D.C. 20001 NATIONWIDECOVERAGE DAILY 8009090M(

__{e,

~

~

,v_

1 CR3697 3

Barther UNITED STATES OF AMERICA

-jOri' 2

NUCLEAR REGULATORY COMMISSION 3

Discussion of c,

\\

4 Proposed Commission Legislative Program 5

6 Commission Meeting Room 7

lith Floor 1717 H. Street li.W.

I 8-Washington, D.C.

9 Friday, June 3, 1977 10 The Commission met pursuant to notice at 2:40 p.m.

11 Present:

Chairman Rowden, Commissioners Gilinsky and Kennedy.

12 13

(

14 15 16 17 18 19 20 21 22 (m '~

23 24 sce Federal Reporters, Inc.

25 y

_9

.1

~

~

~

o 2

'r.3697

~1 P,R,O C,E,E,D I,N_ G S_

duro jcri-all 2

MR. STOIBER:

This is a continuation of the discus-3 sion of the meeting you held on April 18 in which you considered

(

4 suggestions for. legislative initiatives by the Commission.

You 5

have the General Counsel office paper of June 1 with you, a 6

cover memorandum of five attachnents with you contain the sub-7 stance of the discussions.

These attachments overlap and dupli-8 cate to some extent the material you had in the previous memo 9

which was submitted back in March, subject to the comments 10 that you made to us back in April, we have refined'some of the j

11

-memoranda-and,added a couple of additional topics.

12 The five matters that are contained in the paper 13 are a discussion of some additional matters involving civil

(,

14 penalty authority, the protection of licensee and nonlicensee 15 personnel, exemption of safeguards information, a discussion 16 of the Commission quorum requirements, and the question of up-17 grading the Director of Enforcements and Inspection to an 18 Executive Level 4 position.

4 19 As you will see from reading the attachments and the 20 cover memoranum, only two of these items, the fourth and fifth, 21 really have reached a stage where I think we could go forward 22 at present with legislative proposals to the Congress.

With k'

respect-to the civil penalty question, there is a major study 23 224 underway now by the Enforcement and Inspection office on the woowei neoonm inc.

25 entire question of incentives, vis-a-vis licensees The due l

L l

I 3

1 date of that study is the end of September.

We have recommended 2

that we now consider seeking new civil penalty authority or 3

amending our present authority now until the results of that O'

d study are in.

5 CHAIRMAN ROWDEN:

Would you explain why or are you 6

going to get back to these?

7 MR. STOIBER:

I think it is largely reflected in the 8

attachments.

But the basic reason is that there are two aspects.

9 to the civil penalty legislation we would propose.

No. one, 10 shifting from essentially a procedure by which civil penalties U

are assessed through a court action brought by the Attorney 12 General, an administrative 1y imposed system.

l

(

The second aspect is whether or not to increase the 13 Id penalty limit from the $5000 per violation, which we presently have in our regulations and statute, to a $25,000 per viola-15 I0 tion.

We have suggested that some consideration be given to II the increase in penalty and we feel that in order to wrap the 18 whole thing up into one ball of wax, it would be better to have i

I' the support for the increase.

20 CHAIRMAN ROWDEN:

That I understand.

But how does f

21 the matter of civil penalties relate to the study on incentives 22 that is underway?

Is one of those incentives the penalty that C

23 would attach to a violation?

MR. STRAUSS:

I think so.

John Davis may be able to Ace-Nores n.portm. ene.

25 speak to that.

y

-Q

-4 y

---g

-e

c.

~.

_ _ _. _.._n.

4~

g

' \\

1 MR. DAVIS:

It is a broadbased study looking at 2

total incentives, negative as well as positive incentives. One 3

'of the incentives being reviewed now in some depth is the civil r's k

4 peanity incentive.

But it doesn't not just look at that one 5

sanction, but a range of-sanctions.

This may lead to some other 6

requests for legislative change also.

7 CHAIRMAN RONDEN:

What sort of sanctions, for any 8

old thing, in additional to civil penalties are you talking 9

about?

10 MR. DAVIS:

We are looking at the range of orders 11 which we have, how they should be applied or not applied; in 12 other words, limited scope of orders, maybe recognize that 13 orders should be issued for punitive purposes, as well as

('

14 corrective purposes, this type of thing.

15 It is a very broadbased study at this time, 16 Mr. Chairman.

b.

17 CHAIRMAN ROWDEN:

And the target'date for completion 18 is what, the end of September?

19 MR.. DAVIS:

That is really the midway point.

We 20 believe we will have sufficient information to examineithe 21 sanction portion by that time?

22 MR. STRAUSS:

I guess that surprises me.

I thought

(- '

I'had been told the study would be finished in September.

~

23 24 MR. DAVIS:

Not totally finished.

We will have the

.ce F.e.es n.corw.. ine.

25 information in, but the evaluation continues for six t

r

~

p r

.,.-n..

,,_._,,--,.._..,m,,-4 a.

5 I

more months.

2 MR. STRAUSS:

So we are talking about next March 3

then.

O k

4 MR. DAVIS:

No, by this September; we can come for-5 ward with something by this September.

6 MR. STRAU"SS :

Eut the evaluation as a whole will 7

continue for six months beyond that?

8 MR. DAVIS:

Right.

9 MR. STRAUSS:

Which will be next March.

I guess my 10 thought would be, viewing the congressional process with some 11 realism, if this is something that the Commission wishes to 12 seek, the legislative package put forward in the middle or

(

late fall will have a chance of catching the current Congress, 13 14 since bills will survive the winter recess.

The legislative 15 package not put forward un'.il the middle of next spring will 16 have no such chance.

So you are talking about two years there.

17 CHAIRMAN ROWDEN:

In my perspective that is i

18 unacceptable.

Is there any way the study on incentives can 19 be accelerated?

20 MR. DAVIS:

We are accelerating it and we believe 21 we can come forth with something on that by September.

22 CHAIRMAN ROWDEN:

When you say "by September," does

(

23 that mean you will only have finished that portion of the study by the end of September?

Because then there is a process of

24

. w F.dww n. corms, inc.

25 Commission consideration and formulation of a legislative i

~

6

~

jcri I

proposal,. which get you into October at least.

2 MR. DAVIS:

Our schedule now would be we would have 3

finished our portion of it.

But in answer to your question, rs k'

4 it would be 'the initial portion you describe, not the total 5

legislative package.

6 CHAIRMAN'ROWDEN:

Is that the absolute irreducible 7

' period of time for completion?

8 MR. DAVIS:

We will look at that and see if we can, j

9 sir.

10 CHAIRMAN ROWDEN:

What are the views of my colleaguos?

1 II COMMISSIONER KENNEDY:

I agree with Peter, if we are 12 looking at it in that light, we are talking about two years 13 from now.

Just realistically looking at the way Congress works

(

i -

-14 If you can't get something up by early or mid-fall, you probabl:(

15 aren't going to get it through this Congress.

Then you have to 16 go through the organization problem of the next congress.

I7 CHAIRMAN ROWDEN:

Victor?

18 COMMISSIONER GILINSKY:

That sounds right to me.

II CHAIRMAN ROWDEN:

I guess I would like to make a 20 proposal, and that is to set up a schedule which would have a 21 legislative proposal before the Commission at some reasonable

22 time during-the month'of September, so that the process of 23 clearing a legislative measure could begin then.

You know, 2d this the first of June, that is June, July and August.

As Aca Federal Repo,ters, Inc.

25 a matter of fact, couldn't that schedule be better?

I don't

..,- ~.

7 I

know what is entailed' in.the. study of incentives, how complex 2

it'is.

You know,. earlier is better as far as this particular o

3 issue and several'others are concerned.

O R/

4 MR. STRAUSS:

I take it the question would be 5

identifying any measures other than civil penalties for which 6

legislative authority might be required?

7 MR. DAVIS:

That is correct, yes.

8 MR. STRAUSS:

We think we have a civil penalty 9

statute in redraft, in fairly decent form now.

10 CHAIRMAN ROWDEN:

Could you work out, Bill, I think Il you ought to coordinate this, work out with I&E and any other 12 staff units a schedule which will accelerate, I would urge, 13

(

considerably the present time frame for completion of that por-Id tion of the study which is necessary.

i 15 COMMISSIONER KENNEDY:

You need to have it by the 16 15th of September if you are realistically going to have it go

}

17 forward.

We need to have it before the Congress recesses.

And 18 one can't expect that to be much later than the first of Nov-ember.

20 MR. DIRCKS:

Okay.

21 MR. STOIBER:

The second item on your list of pos-22

.sible initiatives is legislation to increase the protection or 23 1

the remedies which we can afford to-licensee personnel or non-24 licen'see' personnel who provide information to the Commission in orenen nom.,drs. sne.

25 the course of its enforcement activities.

This is another one r.

.,e

,,,,..,--..c---

-u

,e,

_. 3...

8 1

of those matters where we are anticipating the results of a 2

study shortly.

This is being conducted by the Office 'of Stan-3 dards, Developments in conjunction with EOD, and our indication

)

4 is now that study will be completed at the' end of this month.

5 By that time we should be able to determine what kind of legis-6 lation might be indicated.

7 here is on the order of a status report

]

8 of where the thinking of this gr,oup apparently is heading now.

9 It points out four general areas which the study group feels 10 the Commission ought to be able to take action on and the kind 11 of remedial action or protection that should be afforded.

That i

12 is set.forth on pages 1 and 2 of the attachment.

So I would say 13 here is another matter where we should have guidance shortly.

(

14 CHAIRMAN ROWDEN:

That will be available the end of I

15 this month for consideration next month?

i 16 MR. STOIBER:

Right.

i 17 The third item is one that Commission Gilinsky raised 18 during the discussion in April, and that was the question of 1

19 providing further protection for safeguards information'either 20 from disclosure under the Freedom of Information Act or other 21 disclosure.

Our discussions with the staff indicate that at

\\,

22 the present time we believe, because of judicial holdings on k>

23 exemption frcm the Freedom of Information Act, and certain 24 findings of the National Security Council on classification 8.cafederal Reporters, Inc.

25 that we are able to adequately protect the kind of safeguards

,_y.

P 9

[

information with which we are concerned and at the present time i

2 there is no need to seek additional legislative authority to do 3

that.

This,.I think, has to be mentioned in the context of the

()-

4 extreme reluctance that we would face in Congress to try to i

5 carve out new sort of special Freedom of Information Act exemp-6 tions.. That reluctance or. hostility, I think, would be 7

particularly strong in view of the sort of breaking periods for 8

governing exemption.

9 We are now in the process of discussing with various l

10 parts of the Congress the implementation of Government-in-the 11 Sunshine Act and there is great sensitivity to the openness in l

12 government concept now, and I don't think that unless we can show an awfully strong cause for seeking an exemption, we are 13 I

14 going to make much headway.

And I think we would in fact per-15 haps generate some hostility among the committees we have to e

16 work.with were we to try to seek it without firm support.

i 17 CHAIRMAN ROWDEN:

It is my understanding that one of 18 the issues that the reactor licensees have raised, they are 19 concerned about our ability to protect security plans which are 20 required to be submitted under 7355.

I also recall that we 21 have one piece, at-least'one piece of unfinished business, an

?

22 aftermath of 347

, and we wrote to NSC and said we ought to O

23 now turn our attention to that.

Originally our ppsition was 24 let's wait and see what the outcome of GESMO is.

I think that' ke#ederal Rese,te,s, ine.

- 25 is no longer-a pacing item.

.a

. y._

10 1

Is my understanding correct that the Staff is pre-2 paring a paper on that subject now for commission consideration?

3 MR. DIRCKS:

Yes, sir.

f(

4 CHAIRMAN ROWDEN:

Do you know when that paper will 5

be ready?

6 MR. DIRCKS:

I gather it will be -- I have to" check, 7

but the way I saw it and heard it, it would be ready, it is in 8

the sort of draft stages now, not too much longer to get it 9

down.

10 COMMISSIONER KENNEDY:

What does that mean?

11 I don't want to give you a date until MR. DIRCKS:

12 I check.

13 COMMISSIONER KENNEDY:

Next week?

(

I4 MR. DIRCKS:

I am hoping it will be next week.

15 COMMISSIONER KENNEDY:

Why not make hope be father 1

16 to reality?

17 MR. DIRCKS:

I was going to get a date.

18 COMMISSIONER KENNEDY:

Why don't you just set a date 19 now and then the Staff will follow your guidance?

4 20 MR. DIRCKS:

Right.

21 CHAIRMAN ROWDEN:

I would like to have it considered 22 sometime this month, which means we ought to have it pretty

(

23 soon.

s-24 MR. DIRCKS:

Right.

It was in a clearing process Ace. Federal Reporters, Inc.

25 yesterday.

11 1

CHAIRMAN ROWDEN:

I asked about that paper before and.

2 understand, or more than understand it will be completed withir 3

the next week to 10 days, so we could get it up here for consi-4 deration this month, which I still think is desirable.

5 MR. DIRCKS:

I will push it and give you a firm 6

date.

7 COMMISSIONER KENNEDY:

Which will be sometime next 8

week?

9 MR. DIRCKS:

Yes.

10 CHAIRMAN ROWDEN:

That ought to go on irrespective 11 of what position we take with respect to legislation.

I guess 12 there are differing views on that.

13 COMMISSIONER GILINSKY:

I am a little puzzled that

(

14 we take such a sanguine view of the proprietary rubric when 15 in writing to the NSC the Commission suggested that this was

'6 really kind of a weak reed.

1/

MR. STRAUSS:

I think this morning's discussion is la something which is going to have to be watched in that respect.

19 CHAIRMAN ROWDEN:- But now let's remember what the 20 totality of our concerns were with regard to the matter of 21 classifying this information.

It is one thing to talk about 22 having the authority to withhold it from a requester under the 23 Freedom of Information Act.

It is another thing to assure that s-24 those people who have access to that security information, if e s.d w w neo wi m,Inc.

25 indeed it is sensitive information, are appropriately cleared.

, -. ~

e 12 1

1 Thathas always been more of a compelling consideration ir; this 2

area, talking about security.

3 COMMISSIONER GILINSKY:

I thought we always agreed

,m 4

we had to deal with the licensees, and the problem is how do 3

you protect them against the Freedom of Information Act.

That 6

is where the alternative approach required some propping up.

4 7

CHAIRMAN ROWDEN:- My own viee has always been that 4

e outside the MUF area, where there were persistent Freedom of 9

Information-Act claims, when we got into the area of security-10 plans for facilities, be their research facilities or reactor, i

11 that we had a concern which wasn't related to whether members 12 of the public could get access to this, but those who play a 13 role in the total construction and operation process and those 14 who participate in our licensing proceedings.

15 For example, as proprietary information now, under 16 our rules, it is a document that we would be obliged to make 17 available to a participant in a proceeding simply on that 18 participant's signing a piece of paper committing himself not 19 to disclose _it.

I think there is a question as to whether that 20 is an adequate protection, if indeed this is sensitive informa-21

, tion.

22 COMMISSIONER KENNEDY:

Security.

23 CHAIRMAN ROWDEN:

Security information.

I think that x--

24 is a potential problem.

I think there are other problems in Ace-reseret rs;.,w, inc.

25 terms of who within a licensee's organization has access to y

-m-.-1---

w-

--,r-w y

v---'-

• '-<~+w y ve - tv

13 5

to this, or the architect / engineer organization.

2 COMMISSIONER KENNEDY:

There is always something a 3

little anomalous to me that on the one hand we have been press-

<s(

4 ing, and rightly so, very hard to increase the level of physical 5

security and protection at all of the installations and activi-6 ties, and at the same time argue that the information on which 7

all these physical protaction and security arrangements are 8

based can be protected by other than security means.

It just 9

seems to me an anomalous position.

10 MR. STRAUSS:

It seems to me that is a different 11 question from the question of the Freedom of Information Act.

12 If one approaches it on the classification rubric, that takes 13 care of the problem.

i 14 COMMISSIONER KENNEDY:

That is right.

The Freedom 15 of Information question does not arise then.

MR. SHAPER:

I think there is another point, irre-16 17 spective of how we think we can protect it now is a different 18 question of getting the kinds of support you need in going to 19 the Congress with a request.

You can classify the. stuff, for 20 example, if you want to.

So I am making a distinction between 21 feeling.you are dissatisfied with the protection you have now, 22 as contrasted with feeling you have got the kind of a case 23 what would convince the Congress, that is all.

24 COMMISSIONER GILINSKY:

There is a second point which w-Fenw m o,wn. is i

25

-is how does this hostility manifest itself?

What evidence is l

.u..

i 14 1

there that.there is hostility to approving an exemption?

2 MR. STOIBER:

One of the best examples of this is

??

3 that last week there was a conference sponsored by the Federal m

-(>

4 Bar Association at which some of the speakers were officials of 5

OMB, and the question was raised in a discussion from the audi-6 ence, what about possible exemptions of this nature.

And they 7

were extremely forceful in their expression that the Congress 8

was not receptive to that kind of what they would call " chip-9 ping away" at these openness-in-government statutes, and they 10 just felt that they were not going to be willing to produce 11 these.

12 COMMISSIONER GILINSKY:

Have we talked to anybody-13 in the Congress or their staffs?

14 MR. STOIBER:

liot specifically, I haven' t talked 15 with anyone, but I do know -- I have had some conversations 16 with the government-in-the-sunshine people, who was it?

17 MR. STRAUSS:

Not specifically about this kind of 15 thing.

19 CHAIRMAN ROWD'EN:

I think we ought to address it on 20 the merits.

We owe NSC our views, we owe ourselves a position 21 in this regard.

Now I think we would be looking at it within 22 the context of proposed regulations for security clearance 23 which are out, and on which the Commission will ultimately have 24 to act.

Obviously these two are related.

l a-FuWW Rwomo, lm:.

25 In any event, the paper ought to get before the 1

,2

~

~

_ ___ Z _. _._ _ _ _;_

__ u__

15 1

Commission.

2 COMMISSIONER KENNEDY:

Next week.

3 MR. DIRCKS:

Yes, sir.

<s A

4 MR. STOIBER:

The fourth item here is something of 5

a hybrid.

It flows from a legislative initiative to change the 6

Commission's quorum requirements.

But if you read the attach-7 ments, you will see that items 2 and 3 of that attachment raise 8

slightly different considerations.. Your sunshine officer, 9

Mr. Ostrach has'provided us with some interesting research in 10 part 3 of that memorandum.

I wonder if you would like to come 11 up to the table in case there are questions about this subject.

12 What the memorandum includes is come additional

(

support in part 1 for seeking an amendment of the quorum require-13 14 ment for the Commission, so that we can act in the absence of 15 a quorum present.

16 The second part of the memorandum discusses --

l 17 CHAIRMAN ROWDEN:

By the way, that has utility 18 quite apart from the present composition of the Commission.

19 MR. STOIBER:

Absolutely.

20 CHAIRMAN ROWDEN:

In terms of efficiency of doing 21 business.

It is nothing unique as far as government.

22 MR. STRAUSS:

No.

What is unique is the presence of 23 the word "Present."

That was explained by the Atomic Energy

. Commission, military responsibility really.

24 Am#ederal Reporters, Inc.

iS CKRIRMAN ROWDEN:

We wouldn't be cast in a position 1

w

+M m

-W-*

e z

V e

+ ' '

7 16 1

of trying to carve out for ourselves a special position to avoici 2

application of the Sunshine.- 1s I read our exposition of the 3

legislative history, the. form of notational voting was something n

(..

'4 that was recognized as being appropriate.

5 MR. OSTRACH:

The Sunshine Act does that, yes, sir.

6 COMMISSIONER GILINSKY:

Has this ~ happened in other

.7 agencies?

8 MR. STRAUSS:

Yes.

9 CHAIPEAN ROWDEN:

We are unique as I understand r

10

-it.

It is an inheritance from the AEC.

?

11 MR. STRAUSS:

It was a ' requirement that was put on 12 in light of the military responsibility.

13 BUR. STOIBER:

I think there was general agre.2ent

(

I4 at the last session that such an amendment should be sought.

15 The Commission wanted further guidance about how the system 16 would operate if such amendment were achieved.

We went one i

17 step further, because of the possibilities which will lie in 18 front of us shortly on quorum question.

And that discussion 19 is contained in part 3 of the memorandum.

20 We~have. indicated here that this discussion is far 21 from exhaustive, that if you would like us'to delve deeper into 22 this question we can.

's '

-23 COMMISSIONER KENNEDY:

It says here, "A Commideioner

'o 24 who has considered a particular issue by cast his vote by co-Federal Reporters, Inc.

25 notation may' instruct assistant to act in the matter."

In Y'

• ^ '

17 jori 1

what form would the assistant's action be, and in what form 2

would the Commissioner instruct the assistant?

3 MR. STRAUSS:

The Commissioner, having considered 4

the matter, would tell his assistant at a meeting which may be 5

forthcoming, from which he may have to be absent, you may do 6

thus a'nd so.

~

7 COMMISSIONER GILINSKY:

Then you have got " Deputy 8

Commissioners."

9 CHAIRMAN ROWDEN:

Well, that is something the Com-10 mission could decide on its own.

I have difficulty with 11 anybody other than a Commissioner committing himself to a par-12 ticular matter.

13 COMMISSIONER KENNEDY:

I don't have, if the Commis-(

14 sioner were to beforehand by notation indicate he has so advised 15 the Chairman and at the meeting his view on the matter will be i

16 represented more fully, if desired, by his assistant.

17 CHAIRMAN ROWDEN:

But there should be some documents.

18 COMMISSIONER KENNEDY:

That is different from i

19 deputizing the assistant to act for you.

20 MR. STOIBER:

The law indicates fairly clearly that 21 is not a possibility.

j 22 COMMISSIONER KENNNEDY:

I wasn't sure what was 23

. intended here, whether we were visualizing smending that in 24 some way..

Aa FWwW Rgenm inc.

)

25 MR. STRAUSS:

No, it is the description you have 1

.. -.. _.. -,. l

M 18 1

given, a notation of general position on a particular matter,

-no.? for 2

not a free-range proxy, but on Section E768, say, my views are carlier binnk?

3 as follows, my assistant is authorized to state them more ful,1y, s

'vf 4

COMMISSIONER KENNEDY:

That sounds reasonable to 5

me.

6 MR. STOIBER:

Section 2 of the memorandum is the 7

possible change in format of meetings that might result from 8

this recommendation, where the Commission would have to adopt 9

a procedure for deciding upon which matters it would want to 10 hold a meeting, and there are suggested in the memorandum a Il series of criteria that the Commission might want to adopt to 12 give the Secretariat some guidance about that.

13 The question of whether or not a Commissioner can

'4 request a meeting, whether or not the matter was one of first 15 impression within the Commission, whetner significart new 16 events had arisen which might lead the Commission to alter its-l'7 prior determination, some kind of system of that nature would 18 have to be worked out if a system of notational voting was 19 adopted.

20 COMMISSIONER KENNEDY:

Before leaving that, as a 21 practical matter, given the history of the Ccmmission's acti-22 vities and expressions, in consideration of the Sunshine Act, 23 since last fall, is it realistic to suggest a regime in which 24 the Commission would meet less frequently on fewer subjects?

z-Federet Reporters, Inc.

25 MR. STRAUSS:

In one respect, you would no longer

19 j

I have affirmstion sessions.

j 2

liR. OSTRACH:

In another respect, you would no longer 3

have to vote to close meetings pursuant to the Sunshine Act.

4 CHAIRMAN ROWDEN:

We would have to meet together once 5

a week to go over the agenda.

We could do that on a notational 6

basis.

/

MR. STRAUSS:

Yes.

8 COMMISSIONER KENNEDY:

And that would mean we meet 9

to resolve differences.

10 MR. STRAUSS:

If there were any.

Il COMMISSIONER GIL'INSKY:

Would you still have to have 12 a quorum for meetings?

13 MR. OSTRACH:

When you have a meeting, you still

(

14 have to have a quorum, yes, sir.

15 MR. STRAUSS:

No, you wouldn't have to have three 16 bodies present because the word "present" wouldn't be there.

17 CHAIRMAN ROWDEN:

It would be a meeting, but to act 18 you have to have three commissioners acting on an item.

19 MR. STRAUSS:

That is right.

But it could be, for 20 example, Commissioner Kennedy, Commissioner Rowe, and Commis-t 21 sioner Gilinsky's paper vote.

22 COMMISSIONER KENNEDY:

That was in part one of the 23 thoughts that ran through my mind when I asked the question.

24 We have had a history up until now of rather regular and fuu.some Ace-Federal Reporters, Inc.

25 meetings discussing a broad range of the agency's business.

20 l

MR. SH5PER:

Not fullsome.

2 MR. STRAUSS:

Perhaps.

3 CHAIRMAN ROWDEN:

I haven't noticed any amendment es

( ' '.

4 of the remarks.

5 COMMISSIONER KENNEDY:

A wide range of activities of 6

the Commission.

And it seemed to me that a significant change 7

in that regime, which would certainly, or it could be implied 8

from what is written here, would be noted, and I would think 9

unfavorably and justifiably unfavorably by the public.

10 Secondly, you are right, Commissioner Gilinsky, 11 that indeed meetings may well turn out to be those convened by 12 the fellow who wants to have a meeting, everybody else having 13 written some notes, and we have a strange set of meetings.

They c

14 would all presumably be open.

But if a briefing, for example, 15 which now might be conducted by an individual Commissioner, if 16 others" indicated their interest in the subject, said that they 17 had certain views which their assistants would be asked to 18 inquire into during the meeting, briefings which heretofore have 19 been individual matters; I can see all kinds of ramifications.

20 of this.

21 CHAIRMAN ROWDEN:

Let's hope you have a chairman who 22 is going to be able to make order out of chaos here.

I think 23 it is a question of the Commissioner's deciding how they want

'24 to conduct their business and responsibility.

Admittedly it

!. Am-Federal Reponers, Inc.

l 25 could degnerate into something that would be counterproductive i

+

.,._,.,_u 1

21 1

as far as the Commission's business is concerned and give a false 2

impression to the public.

l 3I For all of the inconvenience of our having to sit (n

down around the table, there is something to be said for hear-4 s

5 ing each other out.

.I suspect that the desire to conduct a 6

goodly number of meetings in public sessio'n is going to be an 7

incentive for Commissioners to show up for these sessions.

I 8

think that is going to be salutory.

After all, all this does 9

is give you flexibility to exercise this authority in a re-10 sponsible way.

11 MR. STRAUSS:

It is certainly true that relation-12 ships among commissioners at other agencies are often more dis-t 13 tant and formal than they have been here.

Whether one can 14

-attribute that to their ability to dispatch business in the 15 privacy of their office or not, I can't say.

But there is 16 nothing in here that requires that.

17 MR. SHAPER:

Since the other agencies are now sub-18 ject to the "Present" requirement, now subject to the Sunshine 19 Act, it -ight be instructive to see what differences there are 20 by virtue of this particular peculiarity among the other o

21 agencies.

22 MR. STRAUSS:

I mo'e Howard Shaper be appointed a J23 committee of one to explore --

24 MR. SHAPER:

I wouldn't think of transgressing on

..ce-Federal Reporters, Inc.

25 your responsibilities, Peter.

m._,-.___..-_.

22 1

COMMISSIONER KENNEDY:

Could I change the motion and 2

then look for a volunteer.

I think it would be instructive to 3

find out.

I would vote that one of our extensive, enormously em i

4 capable legal staff somewhere in the organization will under-m 5

take to find out.

6 CHAIRMAN ROWDEN:

As a matter of fact, you did do

)

7 a canvass of other agencies about the practical situation,.andi.

8 there has been -- I think someone in your office can do this 9

without too much difficulty.

I mean not simply by attending 10 the meetings, but by talking to people on staff of other organi-11 zations, the counsels' offices, for example.

12 I see somebody writing it down.

/

13 MR. STOIBER:

The third section of the paper does 14 discuss some of the possibilities that might flow from the 15 reduction of the number of Commissioners-below the quorum 16 level.

I am sure thatsome of you might have been surprised to 17 see the statement on page one of that par't 3 which indicated 18 that "As Commissioners, Commissioners r,emaining after the 19 quorum was lost, can exercise no formal authority."

If you 20 are interested in a development of that idea, I think 21 Mr. Ostrach has examined the legal authorities fairly carefully 22 and can speak to that.

If not, we can proceed.

23 MR. STRAUSS:

I think there is a further question, 24

-of whether the commission would wish, prior to the first of Ace #sderal Reporters, tric, July, to develop and adopt any further or general delegation of 25 i

y

23

. j cri.

I ' responsibility to EDO --

2 CHAIRMAN ROWDEN:

To do what?

3 MR. STRAUSS:

The continuing conduct of the Commis-n L

4 sion's affairs in the absence of a quorum.

5 CHAIRMAN ROWDEN:.

What does that entail?

What 6

categories of agedcy responsibility?

7 MR. STRAUSS:

Necessary changes in the rules.

8 MR. SHAPER:

Rulemaking would be the obvious one.

-9 MR. STRAUSS:

Just a general unanticipable filj.-in 10 in authority.

11 CHAIRMAN ROWDEN:

Presumably the adjudicatory 12 responsibility would simply disappear by default.

13 MR. STRAUSS:

There is a possibility there.

I 14 suppose their options would be by rule to provide that any 15 petition for search area filed after the first of Jul'; --

16 CHAIRMAN ROWDEN:

When do those rules take c"feru 17

.MR. STRAUSS:

They are effective.

18 CHAIRMAN ROWDEN:

I haven't received any requests 19 yet.

20 MR. STRAUSS:

Neither have we.

I understand that

\\

21 you will.

?2 CHAIRMAN ROWDEN:

The staff is leading the way.

v 23 MR. STRAUSS:

Yes.

The route is cleared at last.

24

'That a petition filed after the first of July or within that m Federd Reporters, Inc.

25 period of time, would have the effect of leaving the case open i

.. ~.

24 1

until a quorum shall have been established.

You could so provid e 2

if-you wished.

That would be the possible action in the adjudi--

3 catory area.

It wouldn't have any effect, other than to pre-O.

V 4

serve the possibility of Commission action once a quorum was 5

established.

6 CHAIRMAN ROWDEN:

I can't believe that state of 7

affairs would be allowed to come to pass.

8 MR. SHAPER:

Would it be helpful to have a list, 9

on the assumption it might, to have a list of possible actions 10 over the next, shall I say, three months.

II CHAIRMAN ROUDEN:

I think there ought to be some 12 contingency thinking done in this regard.

(

13 MR. STRAUSS:

Well, the issue is whether you want to 14 have rules that you can have in place before the 30th of June.

15 That will require us to go draf t them, Howard to go draf t them.

16 MR. SHAPER:

I will draft these.

17 MR. STRAUSS:

You rather like these.

You can be 18 known as the delegation of authority to the staff of 1977.

19 COMMISSIONER GILINSKY:

We know who is going to 20 get the authority.

21 MR. STRAUSS:

I would think the chief parameter 22 would be to make them self-defeating on the entry into C-23 office of the quorum for some reason over a period of time.

24 CHAIRMAN ROWDEN:

Are you assuming such rules are AcrJederal Reporters, Inc.

25 necessary?

_m.,

25 jeri 1

MR. STRAUSS:

Assuming such rules are necessary, 2

they should provide the authority conferred by them terminates 3,

in 15 days, or whatever.

An emergency order on the order of 4

the national emergency declared at the beginning of the Korean 5

War.

6 COMMISSIONER KENNEDY:

Before.that, declared with 7

the Declaration of War in World War II.

8 CHAIRMAN ROWDEN:

Well, again, I don't believe that 9

situation will be allowed to come to pass.

But r.here are 10 logistical considerations that are fairly evident, including 11 the physical availability of two Commissioners.

This is going 12 to say everybody is going to be immediately available the day 13 after.

14.

MR. STRAUSS:

I haven't believed that situation 15 would be allowed to come to past since January 19.

16 MR. STOIBER:

The real problen is if you don't start 17 the drafting process now, it won't be in place.

18 CHAIRMAN ROWDEN:

My own view is the semenal work 19 should begin at this stage so we will be prepared.

Do you 20 have, any. different viewpoints?

'21 COMMISSIONER KENNEDY:

No, I agree with that.

22 There are a number of things in Mr. Ostrach's s

23 memorandum which interest me, but it is not necessary to dis-24 cu'ss them here.

I was interested to note, for example, as to

• Federet Reporters, Inc.

~

25 the Chairman's functions of appointments and supervision of

_ ~ ~ ~

~

~

26 1

Commission employees, it goes on to note, "The Chairman may 2

~not make appointments of heads of major administrative units,"

3 and they have'been defined here as presumably EDO, NRR, MNSS, D

4 Research, and perhaps I&E --

5 CHAIRMAN ROWDEN:

They just list the statutory posi-6 tions.

7 COMMISSIONER KENNEDY:

Yes.

Whereas up until now it 8

has, I think, been our view, has it not, that it was not con-9 strued as narrowly, put it that way.

10 COMMISSIONER GILINSKY:

Those are appointments that 11 are made by the Commission?

12 COMMISSIONER KENNEDY:

That is right.

,The General Counsel should also be

(

13 MR. STRAUSS:

14 coa.sulted.

15 COMMISSIONER KENNEDY:

Up until now we construed 16 this as a collegial body, we construed it much more broadly 17 than that, and extended even beyond the General Counsel to a 18 number of other significant ; ositions of the Commission.

19 CHAIRMAN ROWDEN:.Well, it has never become an issue 20 because of the way we have chosen to operate here.

21 COMMISSIONER KENNEDY:

I just wondered if this is a 22 very narrow interpretation of the law, or one that is exclusive

-c 23 of any other possible interpretation.

24 CHAIRMAN ROWDEN:

I think it would be unfortunate Am-Federal Reporters, Inc.

'25 if this was. considered to be a determinative legal opinion.

I "P

g e-w

• • rwe-y g-=w--

a.

m I

i 27 I

noted the same thing.

2 I think it calls for a little more careful consider-3

- ation,.so there will be no misunderstanding.

n 4

.MR. STRAUSS:

I think that is the point, isn't it, 5

what the statute says in allocating the functions is if.it 6

wasn't universally welcomed, reasonably clear, and the Commis-i 7

sion's practice has been to engage in the practice which was 8

much more likely, if practiced before the amendment, than the 9

amendment would have permitted, and that is fine, and may 10 continue to do so.

II COMMISSIONER KENNEDY:

Yes.

The question is, is it 12 clear that a legal opinion would say that is what was intended I3

(

by the amendment.

It had not been my understanding.

14 MR. STRAUSS:

As-the Commissioners will recall, in 15 the usual techniques of statutory interpretation looking at the 16 legislative history and so forth, it is rather hard to tell what I7 was intended by the amendment.

18 COMMISSIONER KENNEDY:

In this case I should think I'

well nigh impossible.

20 MR. STRAUSS:

That is right.

If one looks to the 21 experience of other agencies, as I remember, this creates us 22 as a middle of the road agency.

One looks to the experience of v

23 other. agencies, this is consistent with that experience.

This 24 is also consistent with the language of the statute, and in Am-Federet Reporte,s, Inc.

25 this kind of situation, I.think all that a General Counsel 1

^

i 28 1

could say really is beyond that point no further, obviously 2

within it, the-Commission'is free to order its affairs-as it l

3 chooses.

AO 4

. COMMISSIONER KENNEDY:

That is different, however, 5

"from saying -- let me put it another way.

That is putting in 6

the hands of the Commission the conclusion as to the extent to 7

which the power of the chairman extends.

8

~MR. STRAUSS:

The king and his parliament together.

9

' COMMISSIONER KENNEDY:

That is right.

Which is 10 different from the implication of 'this statement, I think.

11 MR. STRAUSS:

The unfortunate situ ation which this i

12 statement looks toward is one in which the king does not have 13 a parliament with which to consult.

<A.

14 CHAIRMAN ROWDEN:

I frankly would find it unaccept-15 able that the Commission could determine the powers of the 16 chairman, which were conferred by statute.

17 On the other hand, I think there are two different i

18 categories which.are subject to Commission consideration; at 19 least arguably you could make that point.

20 Under the Energy Reorganization Act it says, 21 "Certain officials shall be appointed by the Commission."

)

22 There is no special mention of the chairman.

And my recollection

-(-

23 of the amendment,-it gives the chairman administrative and l

s-

)

24 executive authority, including that over personnel, except that aseeeres neo.,w,., inc.

25 appointmentsLof principal -- I don't know how it describes it --

i l

- ~ - -.

a 29 1

officers or units, whatever the descriptive term is, shall be 2

approved by the Commission.

The chairman makes the nomination 3

and the Commission approves.

It might lend itself to the

($

4 suggestion that there are two categories there.

I don't think 5

we have to resolve that here.

But I wouldn't consider it to 6

be a definitive legal opinion.

7 Sometimes these things.just lie there and later on 8

somebody picks them up and says that is the law.

9 MR. STRAUSS:

The word " preliminarily" appears a 10 number of times.

11 MR. SHAPER:

In connection with the matter of 12 delegation, I would point out there are two different kinds of 13 situations in terms of delegations.

By regulation, in effect,

(

14 the Commission has delegated to the staff all functions, with 15 two exceptions, and that is major rulemaking and action in 16 adjudicatory matters.

And that is one category.

The other 17 category is by practice the Commission has asked the staff to 18 come to the Commission before taking certain actions which in 19 theory but for that direction the staff could take itself.

20 So I would think in any consideration the Commission would want 21 to give to the matter of delegation, there is much greater ease 22 in effecting the change in one area than in the other.

23 MR. STRAUSS:

I think maybe the principal issue 24 there would be in areas of policy formulation as distinct from WJederal Reporters, Inc.

25 formal rulemaking or formal adjudication.

4 30 1

MR.-SHAPER:

I think two examples might be export-2 licensing.

The Commission made it absolutely clear that export 3

licensing would be treated' differently and they want to consi-

. -m C

4 der them by themselves.

5 CHAIRMAN ROWDEN:

Does that mean there would be a 6

moratorium on the issuance of. export licenses if --

7 MR. SHAPER:

No, it means you would have more 8

flexibility in delegating that if you wanted to.

9

.bCR. STRAUSS:- I assume what could be done, in the 10 context of this document, in a variety of situations in which II authority has been or might be delegated to the staff would be l

12 to have an understanding that the staff will consult with those

(-

Commissioners who are here and on a request that a matter be j

13 34 held for consideration by a Commissioner when it appears, the 15 matter would be held.

16 MR. SHAPER:

Sure.

17 CHAIRMAN ROWDEN:

Those Commissioners who are here 18 don't constitute a lawful body?

I9 MR. STRAUSS:

No, it is a working accommodation.

20 MR. SHAPER:

Another example might be --

4 2I CHAIRMAN ROWDEN:

It is a matter of being able to 22 take action.

rss 23 MR. STRAUSS:

The other area where, a similar sort 24 of area, there may lxa some things such'as the issuance of Ice #ederal Reporters, Inc.

25 policy statements which have traditionally been done at the i

I.

. +, -

- ~ -.

31 1

Commission level, and there is suggestion in the legislative 2

-history that that'is what has long been intended, but there is 3

not statute that formally requires that.

We would obviously 1

'v 14

' exercise a good deal of discretion in staff issuance of such 5

statements absent the Commission, even if it could be done, if 6

the authority were delegated, because it is important that they 7

have the imprimatur.of the presidentially-appointed leader.

8 CHAIRMAN-ROWDEN:

You have the worst of both possible 9

worlds, you have the impression created that major action can 10 be taken by non-presidential appointees, where as a matter of II

~ fact, what would happen would be a paralysis of all action, 12 because no staff guys will take a major initiative in those 13 circumstances.

At least it would be-surprising to me if that 7

s 14 would happen.

15 Again I repeat what I think is more than an aspira-16 ti6n, there is enough chance for mischief or embarrassment.

17 As I have said, I don't believe that situation will come to d

18 pass.

But proceed with the seeding work on that.

19 MR. STOIBER:

Before leaving item no. 4, would it 20 be possible for me to have the Commission's feeling that the 21 elimination of the presence requirement is something we should 22 seek and we should draf t legislation for that, consult with 23 Carl Kempe about the best way to have that induced?

And to OMB 24 CHAIRMAN ROWDEN:

I think so.

Am.Federei Reporters, Inc.

25 COMMISSIONER KENNEDY:

That sounds reasonable to me.

-n- ~

32 1

With'the understanding that what we need.to do is establish 2

the ground rules, a set of procedures under which we function.

3 A lot of those are outlined in these pros and cons in the paper

(_

4 that we have got.

5 MR. STOIBER:

Fifth item in the package is the 6

upgrading of the Director of the Office of Enforcement and 7

Inspection to Executive Level 4.

You have two pieces of paper 8

here from the Office of Administration discussing ways to do 9

that.

The first paper of Apri1 22 merely discusses the con-

~

10 cept of making this another statutory office, with the concomi-11 tant amendment of the Energy Reorganization Act.

It was my 12 understanding in the discussion in April that the Commission 13 would like to do this with as low a profile as is possible to 14 avoid the necessity of raising the whole question of how the 15 Enforcement and Inspection effort relates to the other statu-16 tory offices of the Commission.

17 Therefore, the second paper reflects four alternative

)

18 ways of achieving this result by simply upgrading one of the 19 Commission's Level 4 positions to a Level 5 position.

That 20 alternative is set forth on page 2 of the May E memo from 21

-)Cr. Jones to Mr. Donahue as alternative B.

Both the Office of 22 Administration and ODC think that is an appropriate course of 23 action.

24 CHAIRMAN ROWDEN:

How would that work?

co-Federal Reporters, Inc.

25 MR. STOIBER:

Well, the only thing we would need to l

.,, p ; -

w. e.

33 1

do would be to seek legislation which wou'ld state thatone of the

'2 five authorized Level 5 positions which the Commission has under 3

the Energy Reorganization Act would be increased to a Level 4,

/-

(_.

4 making that not a staff level position and retaining the Level 5

5. position as career positions.

6 CHAIRMAN ROWDEN:

This would be an amendment to the 7

Energy Reorganization Act or an amendmenu to Title V or 8

what?

9 MR; STRAUSS:

Cal Jones drew it up as an amendment 10 to the Energy Deorganization Act.

I won't argue it.

I would 11 think it would be an amendment chiefly 'to Title V. In order to 12 make the Executive Level 4 position career, you would probably 13 also have a minor amendment to the Energy Reorganization Act.

(-

14 MR. STOIBER:

You would have to change the number of 15 Executive Level 4 positions you have provided now in the Energy 16 Reorganization Act.~

17 The Section 2(y) of the 1974 Act says, "There shall 18 be in the Commission not more than five additional officers 19 appointed by the Commission."

That is where the adjustment i

20 needs ta be.

That would seem a tidy way of doing it without 21 getting into the whole question of creating a whole new statu-22 tory office.

k-23 CHAIRMAN ROWDEN:

I guess the basic question is 24 guidance from the Commission as to whether that ought to be Ace-Federal Reporters, Inc.

25 done?

4

-w

.na--

34 1

MR. STRAUSS:

Yes.

2 MR. TERRELL:

I wonder how easy it is to get out of 3

going through the argumentation about holding statutory office.

(_ -

4 CHAIRMAN ROWDEN:

It is a question that is going to 5

be raised.-

6 MR. TERRELL:

It is going to be raised and none of 7

the papers that have beentritten on this so far, the ones we 8

have here, are all in the nature of implementation, and we 9

don't really have a paper that answers organizational, mana-10 gerial, substantive questions about that function.

I think, 11 no matter whether your minds are made up right now to do it, 12 I think you are going to need that background at least in your 13 hip pocket, because those questions are going to be raised.

(

14 MR. STRAUSS:

I think we have understood from the 15 start if a statute in this form was sent up, it would be sent 16 up with materials explaining the need for Level 4 in I&E in 17 terms of its size, responsibilities and the like, which could 18 readily be converted into statutory form if the Committee 9

decided that was the way they felt they had to go about it.

20 MR. TERRELL:

Wouldn't it be better to have those 21 materials before you make a decision?

22 MR. STRAUSS:

I don't know why it has to be that way 23 CHAIRMAN ROWDEN:

I assumed we would see a legis-24 lative package before final ~ action is taken, and part of the ace-r.e rm neoorw., inc.

25 backup for that package would be a description of the functions

-s---.-

35 1

of the Director of the Office of I&E.

2 MR. STRAUSS:

That is right.

3 COMMISSIONER KENNEDY:

If I understand your point, b_.

4 what you are saying is that, or you are saying it may be the 5

case that no matter how you wish to avoid that search reexami-6 nation of the entire organizational structure, which indeed 7

we have said earlier we wish to avoid, the probability is you 8

are not going to if you raise the question of this Level 4, 9

in whatever form you raise it, the question of organization is 10 going to arise.

11 MR. STRAUSS:

That will depend on the Committee, tha 4

12 is right.

They may or may not want to get into it.

13 Both of the Committees that will be presumably f

14 responsible for this legislation have happily increased the 15 responsibilities of the Office of Inspection and Enforcement 16 recently by a significant amount. ~

17 COMMISSIONER KENNEDY:

That would hate been the time 18 to do this?

l 19 MR. STRAUSS:

Yes.

But their having done it recent-20 ly, they ought to be willing to endorse this pretty damn fast.

21 Maybe they-will want something more than.

We will see.

22 MR. TERRELL:

I am must saying it is prudent to

)

23 assume and prepare for it.

24 MR. STOIBER:

There are two additional matters not co-Federal Reporters, Inc.

25 reflected in the paper before you, one of which deals with the l

l L

._7 y

_t

_1_

36 jOri I

handling of health and safetiy matters in a foreign context.

2 The-study group has received the Commission's indication of 3

desire for such study.

I think there is an outline which,

,6 V

4 should be at'the Commission in the next day or so setting forth 5

the parameters of that study.

I am not sure what the dates 6

are.

It is coming up from IP, but we have had a couple of 7

meetings on it.

8 One of the questions which is being examined in the 9

context of that study is whether or not additional legislative 10 authority is necessary to do the kinds of things we are con-Il cerned about doing.

I2 MR. STRAUSS:

If we can go off the record for just I3

{

a moment.

I4 (Discussion of f the record.)

I3 MR. STRAUSS:

Back on the record.

I0 MR. STOIBER:

The second matter not reflected in the I7 memorandum is the question of whether or not the Commission I3 should consider recommending legislation which would authorize I'

the use of deadly force by licensee personnel in protection of 20 special strategic nuclear material.

I have in my. hand, as one 21 ex-Senator used to say, a package of material discussing that 22 issue which the Commission has generated in the last year and

-23 a half.

It is not a question which is unfamiliar to the Commis-24 Aa-F.deres n oort. inc.

- sion.

25 However, Congressman Dingell has raised this issue

_ ~

37 1

very forcefully in hearings in which the Commission was in the 2

hearing room.

So therefore our office is in the process of 3

preparing an additional. paper to add to this stack which will

^

.. f

-g i._ J 4

discuss again and perhaps more narrowly in a more focused way 5

the question of deadly force and whether or not that is a 6

necessary kind of legislative authority to seek.

7 MR. SHAPER:

The Commission may be interested in 8

knowing how it came up, it came up at the recent hearings.

9 Dingell prested hard, as well as his counsel, about whether or 10 not we had given enough authority to license guards to, in 11 effect, use force.

I pointed out that stata laws were pretty 12 much controlling.

Dingell was clearly not satisfied with that.

13 He indicated the great harm to public health and safety in the

(

14 event that any of this. material was stolen or diverted.

Then 15 his counsel kep after me and indicated, he paid some recogni-16 tion to state legislation.

He said that will take a long time.

17 I said yes.

He said, "Have you considered asking for a federal 18 authorization, a federal statute?"

I said candidly, "The matter 19 is not under active consideration."

20 He said, "Will it be?"

And said, "In view of the 1

21 last question, the answer is in the affirmative."

Laughter.

22 And I think we can reasonable anticipate a followup by either l

23 Dingell or his staff counsel on what our position is on that.

i 24 CHAIRMAN ROWDEN:

Well, we ought to address it.

i W-FeemW Rewwn, lm

- 25 COMMISSIONER GILINSKY:

If they are willing to l

l

_ = -. - - - - -

38 I

authorize use of deadly force by licensees, don't you think thei 2

would be willing to entertain an exemption to the Freedom of 3

Information Act?

(,

4 (Laughter.)

5 MR. SEAPER:

I referred to,it as a " license to kill" 6

and Dingell.said, "I did not say a license to kill."

7 MR. STOIBER:

The Commission eseentially decided 8

the issue in -theinegative in conjunction with the security 9

agency study, where this was examined in detail.

But there is 10 not reason why we can' t look at it again.

11 My early professional background was in prosecuting 12 these kinds of cases, these deadly force cases, and I can't t'

13 see that Congress would look with greater enthusiasm on that.

14 CHAIRMAN RONDEN:

Well, we ought to look at the 15 question.

I don't recall we addressed it that directly in 16 connection with the security agency study.

17 COMMISSIONER KENNEDY:

Couldn't there conceivably 18 be constitutional questions raised?

19 MR. STRAUSS:

Sure.

20 MR. SHAPER:

In view of the controversiality sur-21 rounding this one, I can hardly think of anything that would be 22 more controversial than putting for legislation like that.

23 COMMISSIONER KENNEDY:

What purpose is served by 24 this agency. putting that kind of legislation forward?

. Ace-Federen Reporters, Inc.

25 MR. SHAPER:

We have no problem with Congressman 4

.,[

-,,,..,,,y

\\

l 39 h

Dingell introducing it himself.

But you need'a position, at 2

.least to tell Dingell you have considered it.

3 CHAIRMAN ROWDEN:

Our understanding is this is in

,n

. \\._

4 the context of the instructions which ERDA has'given;'it is not 5

just federal guards but contract gnards.

Although'that is a 6

proprietary operation, they are still private citizens, who act 7

as guards at many_of these facilities and they have been 8

instructed by ERDA to use deadly force in juxtaposition to 9

ourself-.

10 COMMISSIONER GILINSKY:

We instructed the guards 11 at licensing facilities to use deadly force?

12 CHAIRMAN ROWDEN:

Within the constraints of state 13 law.

We-put limitations on it, unless there is a threat to, 14 well, what la the basic criterion?

15 MR. STOIBER:

It varies from state to state.

16 COMMISSIONER GILINSKY:

We don't want to violare 17 the law.- But where it doesn' t, we want them to forcibly protec 18 the material, right?

19 CHAIFWUW ROWDEN:

That force which is necessary to 20 protect the material within the constraints of state law.

If 21 there is no threat to life, you think that is it, isn't it?

22 MR. STOIBER:

It is in defense of one's self or of

\\L 23 others.

The question is whether or not that common law defense 24 would be broadened out by the courts to' include the material ce-Federed Reporters, Inc.

25 of 'such deadly possibilities that it could be used to injure others.

Y 94

1. b%r

$<d4

%b,9 IMAGE EVALUATION TEST TARGET (MT-3)

I l.0 M E4 ILE e m an na m

1.1

[

• LM l

!.8 l 1.25 1.4 1.6

\\

c 6"

MICROCOPY RESOLUTION TEST CHART

1. ///

l/

4%'I#

4 #4'\\

I.;.k{p

'I >,,c a$ h(,

! _ __ j

[.,

YIII 9

1. ep%

$<jN h

V' IMAGE EVALUATION TEST TARGET (MT-3) t 1.0 l#E!4 Du e m Baa

~m 1.1

[" EM

.8 1.25

!.4 1.6 MICROCOPY RESOLUTION TEST CHART

\\

4**%

++//p

? q f b h, g.

h%ghh 5,7,

///

^

. _;p2;;2rg;.24 m.

. a. A..

~

c 40 i

MR. SHAPER:

You don't have to give up the property.

2 Can you attempt to defe'nd the property, then -if they show a

.3, threat of force, you are entitled to defend yourself.

But its 1

Oy 4

' varies lfrom state to state and it is not clear.

5 MR. STRAUSS:

And there-is a recent decision in.the 6

Eighth Circuit. throwing constitutional, describe it as light 7

or mud, on the problem.

8 CHAIRMAN ROWDEN:

If they have the material in a 9

vehicle speeding away from a facility, it is difficult to 10

-put thatin the framework.of utilizing deadly force to protect 11 your life or the life of someone else on the facility.

12 CHAIRMAN GILINSKY:

Suppose no state law stands 13 in the way, what are our instructions to the licensee's guards?

{

14 CHAIRMAN ROWDEN:

There is an instruction you can 15 read from in that regard.

We approved it recently.

16 MR. STOIBER:

It says, "Upontdetection of abnormal 17 presence or activity," et cetera, "The' licensee's security 18 organization shall," then it goes through what it does in terms 19 if a threat exists, " Assess the extent of the threat."

20

'Four, your guards are to interpose themselves between 21 the'special nuclear material.and any person attempting entry 22 for purposes of industrial sabotage or theft, and to intercept 23 any person exiting with special nuclear material.

24

• • And five, instruct guards to prevent or delay the

. ice Federet Repo,ters, Inc.

'25

. theft or' industrial sabotage by using a sufficient degree of I

< N. e,-

a w

,-,,-_,,,ve_m

,...n..,,-

,.m,.

e-e,,,,,

-, 7i, -

41 I

force to counter that degree of force directed at them, includ-2 ing the use of deadly force when there is reasonable belief 3

that it is necessary in self-defense or in the defense of (j

4 others."

j 5

. COMMISSIONER 'GILINSKY :

Let's take this case of f

1 6

someone fleeing with a. sample of plutonium.

What is the 7

guard expected to do?

8 MR. STOIBER:

Well, you --

9 COMMISSIONER KENNEDY:

Wrestle him to the ground.

-10 COMMISSIONER GILINSKY:

Suppose he runs faster than 11 the guard?

12 CHAIRMAN ROWDEN:

I think "give chase."

If I were 13 a guard, I would feel on insecure ground firing after him.

K 14 MR. SHAPER:

If he shot and killed him under those 15 circumstances, I think he could run afoul of the criminal laws 16 of the state.

j 17 MR. STOIBER:

I think it is highly unlikely.

18 MR. SHAPER:

That is exactly the case Peter referred 19 to.

20 CHAIRMAN ROWDEN:

There are two problems:

Would it 21 be prosecuted and would he believe that he would be prosecuted?

22 And the willingness on his part to take appropriate action is l

23 going to be colored but that latter factor more than the for-1 24 mer one.

(

w. Federal Reporters, Inc.

l 25 MR. SHAPER:

The case Peter mentioned was those l'

i l

l

42 4

I circumstances, shooting of a fleeing felon.

2 MR. STRAUSS:

No, someone believed to have been a 3

fleeing felon.

p V

4 MR. SHAPER:

But he committed burglary in front of

)

5 the officer?

6 COMMISSION GILINSKY:

So we don't expect a guard to 7

shoot someone running away with special nuclear material?

i 8

CHAIRMAN ROWDEN:

I don't read ~those instructions as j

9 a layman as covering that situation.

Do you disagree with that?

I l

10 MR. STOIBER:

No.

11 MR. TERRELL:

Shouldn't you ask yourself two ques-12

.tions.

First, quite apart from the law, what would you like to 13 see done?

14 CHAIRMAN ROWDEN:

That is right.

l 15 MR. TERRELL:

Then if the law doesn't permit that, 16 how can you go about getting some authority to have these people '

U do it?

Maybe you don' t want a guy shot in the back who is 18 running away with 50 pounds of plutonium.

19 CHAIRMAN ROWDEN:

Or a package.

20 MR. STRAUSS:

It is a package they are running away 21 with.

22 COMMISSIONER KENNEDY:

It migl'.u be their lunch.

23

-MR. TERRELL:

If you don't want them shot in the

+

24 back, the problem is solved.

If you would like the guards to

- toe Federet Reporters, Inc.

25 have authority to do that, if they believe it, 1

~

. x..

43 jsri 1

MR. SHAPER:

I.think they would like to ' o it, but d

2 they wouldn' t like to do it themselves, but-the guard would.--

3

'I think probably would like to permit the theft.

/

4 MR. STRAUSS:

Part of the problem is knowing a threat-.

5 has. occurred and making instructions that are simple enough --

6 COMMISSION GILINSKY:

Do ERDA guards-have instruc-7 tions to fire?

8 CHAIRMAN ROWDEN:

Yes; that is my understanding.

9 MR. SHAPER:

They do.

They have a special statute 10 we don't have.

II CHAIRMAN ROWDEN:

The statute simply authorizes ERDA 12 to arm federal and contract personnel.

It doesn't authorize 13 them to shoot to kill.

t I4 MR. SHAPER:

That is correct.

But are they relying 15 on that statute for their authority?

ERDA counsel told me 16 although that is the way the ERDA instructions read, they 17 don't believe there is good legal support for it though.

That 18 is in confidence, though.

19 MR. STRAUSS:

If I may add a couple of further 20 observations about this first.

It isn' t only Congressman 21 Dingell.

GAO in a recent report has recommended the same thing <

22 So the Commission will have to take a position on it.

f i

23 CHAIRMAN ROWDEN:

We simply have to be prepared to 24 ddress that.

a Ace Federse Reporters, Inc.

25 MR. STRAUSS:

And the adoption of 73.55 and a number

.s.4__

q 44

[

of other things makes this a perfectly logical forum in which to

'1 2

do so.-

, Wait until you see the training memo which is on its 3

4 way up.

Those fellows are going to be such --

l 5

MR. SHAPER:

They may not be able~to shoot, but if 6

they' shoot, they.will be well-qualified'to hit.

7 MR. STRAUSS:

I think that is a fair description.

3 CHAIRMAN ROWDEN:

When can we expect that?

9

' Don't throw all bf that material at us.

I think we 10 need a paper.

11 MR. STOIBER:

A week or two.

12 MR. SHAPER:

That is a hard paper to write.

13 CHAIRMAN ROWDEN:

Okay.

s 14 MR. STRAUSS:

There was oneother matter in this 15 connection that we said we would discuss with you informally 16 this afternoon and that is the testimony a week from Monday, 17 the Chairman's testimony a week from Monday on six bills and 18 the general subject of licensing reform.

The six bills concern, 19 to start from the top, a proposal for moratorium pending GAO, 20 A study of nuclear plant listing, the Price nuclear licensing 21 reform bill of last year which has be'en reintroduced as H.R.

18.

22 Congressman Udall's two measures, alternativ,maasures, 23

' recognizing siting authority in the states coordinate with the 24 NRC.

And two measures addressed to state approvals of location tce-Federet Reporters, Inc.

25

-of waste repositories by ERDA.

And I thought I might raise a

._g i

45 1

couple of issues with you generally that the Chairman and I 2

have discussed at some length, and we hope to have a draft to 3

you by next Tuesday which would be a composite of papers that

,em G

4 have already been prepared.

5 CHAIRMAN ROWDEN:

By the way, everybody is invited.

6 Vic, my letter said come on up, and bring anybody 7

you want with you.

So the invitation is extended.

8 MR. STRAUSS:

On the question of moratorium, the 9

Commission has said in a number of contexts, and I think the 10 Administration as well.has taken the same position, that the 11 question of choice among energy choices is one to be reached 12 as a matter.of balance among all.

What I would anticipate the 13 Chairman might say is that obviously this is an issue which it

(

14 is appropriate for the Congress to decide.

15 The Commission has no information which would lead l

16 it to believe as a regulatory matter that such a moratorium 17 was required.

And that in its view how one and with what 18 technologies one answers the nation's energy demands is a com-19 plex question which requires assessment of all, not simply one, 20 energy source from the perspective of what their various costs 21 and benefits are going to be.

2 22 The licensing bill we have supported in the past and

-23 I would expect you would wish to support it again.

There is 24 a question which has arisen since then -- you will recall one Am-Federal Reporters, Inc.

25 section of that bill, Section 102, called'for a study which 1

_ __n..__.

46 I

has in fact already been performed and is essentially complete.

2 We will be hearing from Bob Ryan about that next week.

I don' t 3

know of the outgrowth of that study and some other thinking that 4

has gone on is the situation in addition to early site review 5

and standardization of nuclear designs, t.' 4t coordinating measures 6

be found to reduce the duplication of environmental' reviews, 7

need for power reviews, and indeed,,even within the Federal 8

Gotarnment, various federal agency reviews.

s 9

The Chairman means to state as a personal view that 10 this kind of neasure would be appropriate as an additional meast re Il to those already provided for in H.R.

18, that is to say, on the J

12 one hand a measure providing for some coordinating authority 13 within the the Federal Government over federal agency review, 14 on the other, some form of technique for allocating between the 15 Federal Government and the state government a single respons-16 ibility for need for power and environmental site reviews.

, 17 And one question, I guess, it would be appropriate 18 to talk about today is whether that should be presented, whether 19 in doing the draft, I should present it as a Commission view 20 or whether the Chairman would prefer to present it as his own.

2I COMMISSIONER KENNEDY:

I have no problem with the 22 second half.

I am not sure what the first half implies.

23 The first half was the coordinating mechanism of 24 all such reviews.

I don't know h'ow that works, and who would ce.Federet Repo,ters, Inc.

25

.do it, I don' t know what effect it would have on the

L-47 1

responsibilities of all of the agencies who are involved now.

2 CHAIRMAN ROWDEN:

I think in fairness to the others 3

maybe the thought should be developed in the testimony.

My own n

(.

4 view, and this pretty much, I think, reflects what we have seen 5

in the Section 102 study, the need f7r coordination at the 6

federal level.is to have a mechanism which establishes --

4 7

COMMISSIONER KENNEDY:

The point is how do you do 8

that?

9

. CHAIRMAN ROWDEN:

Say through the Department of 10 Energy or something, I think the 102 study recommended a coun-11 cil of some sort that would do it.

12 MR. STRAUSS:

We have seen a number of bills oveJ

( -

13 the past few years --

14 MR. OSTRACH:

It was a coordinating council under 15 a lead federal agency which would be the Department of Energy.

16 CHAIRMAN ROWDEN:

Yes, which would set reasonable 17 time sct-adules after hearing the views of the agencies inc71ved.

18 It-is my own view that, quite apart from this being part of 19 your recommendations in the study, that it is a desirable 20 mechanism.

There are difficulties, if that is not applied in 21 a sensible fashion.

We have had difficulties with that sort

'2 of proposal in the past.

But I think it is desirable, if it is 23 sensibly structured, and I think we can come up with a sens-24 ible recommendation in this regard.

Am Federal Reporters, Inc.

25 And it is almost essential, if we support, at least

_____,_____L.

... L ia.s,...

u 47 A 1

as I would propose to support and I think is supported in the,

2 study, to have some mechanism to encourage or maybe even force-3 feed the concept of one-stop siting at the state level, coordi-4 nated siting there.

It is difficult to tell the states to get 5

their house in order without our doing anything at the federal ~

6 level.

And the NEPA/NRC thing at Seabrooke is an example of 7

the thing.

But. these are concepts now.

8 You ought to look at the language as it is developed.

9 COMMISSIONER KENNEDY:

The broad concept of purpose 10 it seems to me is acceptable.

It is when one starts think'ing 11 about how you do this that it begins to get a little tougher 12 and a little less clear.

13 MR. STRAUSS:

One of the things that came out of 14 H.R. 18, well, that came out of_the Commission's bill when 15 H.R.

18 was created was a notion of open and advanced utility i

1 16 planning.

I think it will be an inevitable feature of the 17 sort of regimes that we are speaking about that that will go l

18 back in and I expect you will find some language about that also 19 in the draft.

20 Bob Ryan has very helpfull.y put together a few pages

-21 on the state siting study, which certainly should be addressed 1

22 in this testimony.

j 23 CHAIRMAN ROWDEN:

I think-that is an essential aspec 24 of the testimony.

Ace Federal Reporters, Inc.

i 25 MR. STRAUSS:

Foward has given is a useful start on

u,. A 48 t

the testimony.

2 On the two bills, the two Udall bills specifically, 3

dealing with the state role in siting, you ma,y recall one of

(

4 those bills provides for state approvals before NRC approvals, 5

and I. think we will be able to talk our way around that in the 6

mode I have already suggested, and we will be at least half 7

approving, if not-more, of that concept.

8 The other bill provides for a 90-day period --

9 CHAIRMAN ROWDEN:

Wait now.

Approval in the sense 10 of what?

i 11 Nonradiological considerations?

12 MR. STRAUSS:

That is right.

The other bill _provides 13 for a 90-day veto after NRC has reached its conclusion.

There 14 one is looking strictly at a political device rather than what 15 one might describe as a rational application of regulatory 16 responsibility.

I would think the Commission would wish to 17 oppose that.

There is the further element in both of these i

18 statutes'that they appear to look towards conferring on the 19 states some responsibility for health and safety.

The states 20 could adopt more rigorous standards than the Nuclear Regulatory 21 Commission so long as the Commission through some mechanism, 22 there is a not very good one spelled out in the statute, deter-23 minei this was not inconsistent with the federal scheme.

.24 There are precedents for such statutes, the Hazardous I

sw-Federal Reporters, Inc, l

25 Materials Transportation Act, the Clean Air Act, the Water

- m

.m* -

-49 1

Pollution Control Act.

And we are looking to see whether those 2

precedents really have any bearing here.

My disposition is to 3

think they will get in the way of standardization and should be r~C

'4

' opposed on that basis.

5 I have heard Ben Huberman talk often enough about 6

the det ning of design that goes on when you impose differing 7

criteria on reactors to-think that may be an effect.

But Bob 8

and Ed Case are looking into that and again we will have some-9

~ thing ready by Tuesday on that.

10 MR. SHAPER:

Plus the fact that in answer to the 11 letter Bob Moran sent out, the governors are not anxious to get 12 into radiological health and safety.

13 MR. RYAN:

Yes.

We-should mention that also.

(

14 MR. STRAUSS:

The final set of bills concern loca-I-

4 1

15 tion of the ERDA waste repository.

I am not quite sure why we were asked to co~ ment on those two bills. -I can see some 16 m

17 interest if we were not wishing to be 75 percent of the way 18 along-toward licensing a repository and then have a state tell 19 us thut no, this place is unsuitable and we don't ac. cept it.

20 It would certainly be appropriate to have some words to say 21 about the need for hard work and early decision and indeed you 22

.have just had a memorandum from Howard indicating to you that 23 this is almost a necessary element in the staff view that 24 licensing of reactors may continue.

J. waeerm nonm. inc.

j It may be that one comes to the point here of saying 25

m e, 50 I

state law autonomy is fine, but if'there are only a few places 2

in the-country that could be safe sites for waste storage, the 3

nation, as a matter of national policies, can't afford to let 4

each state where those places are say no.

I don't know that that.is a position that the Commission ought to be stating 6

rather -than saying the Department of Energy or ERDA.

~

7

-I am going to try and find out more than I presently 8

know-from other folks but how they feel about that issue.

9 MR. SHAPER:

It is so controversial, it might be 10 well to defer to ERDA on.that.

I1 MR..RYAN:

I think they do plan to invite ERDA 12 to testify.

They are billing the entire session as a licensing 13 proceeding.

-I have learned, by the way, Mr. Chairman, that i

~

14

'they are preparing Chairman Udall's introductory remarks now 15 and he will state the purpose of the-hearing as three-fold.

16 One, to clarify the role of the states; two, to identify ways 17 to reduce licensing lead times; and three, to identify methods 18 to enhance public participation in the process.

19 MR. STRAUSS:

Well, I guess we hadn't really planned 20 o talk about funding of intervenors again, but if you would 21 like to --

22 CHAIRMAN ROWDEN:

No, it is our position that we 23 have taken consistent with Chairman Udall, if our position is 24 not well-known at this time, documented as well as articulated, m Federal Repo,ters, Inc.

25 I. don't think there is anything more to say on this subject.

v

,. ~ _

7 y

, +:, >

--e 51 1

He-has accepted that in the past, he knows what our views are 2

and he has heard from others on the subject.

3 MR. RYAN:

I don't think he is settling either on

(

4 funding only for intervenors or in talking about public partici-5 pation.

6 CHAIRMAN ROWDEN:

The things we are talking about 7

now, in terms of generic reviews, really have strong components 8

of more effective public participation.

9 MR. STRAUSS:

Okay.

10 Any other suggestions?

11 COMMISSIONER GILINSKY:

Yes.

I think you ought to 12 check with some of the Committee to see how they feel about 13 exemption.

\\_.

14 MR. STRAUSS:

Exemption from the Freedom of Informa-15 tion Act for security plans.

We will start with that.

16 Well, we are prepared to move on to the next sub-17 ject, which will require a general clearing of the room.

jori cnd 18 (Whereupon, the hearing was closed at 4:00 p.m.)

19 20 21 22 23 i

l 24 l Aa-Federes Repervers, Inc.

25 l

c

~%

UNITED STATES

! si NUCLEAR REGULATORY COMMISSION c,

g uE W ASHINGTON, D.C. 20555

\\f*****,/

August 14, 1980 OFFICE OF TH' SECRETARY COMMISSION DETERMINATION REGARDING PUBLIC DISCLOSURE UNDER THE GOVERNMENT IN THE SUNSHINE ACT OF:

Transcript of Discussion of Proposed Commission Legislative Program, June 3, 1977 Pursuant to the Commission's regulations implementing the Government in the Sunshine Act (10 CFR 9.108 (d)), it has been determined after a further review of this transcript that the entire text can be released'to the public.

r i

hh-Samuel J. bilk Sec etary of the Commission l

l i

w' J