ML20141F371
Text
'
- * - je*Cieg UNITED STATES A= i. #- g NUCLEAR REGULATORY COMMISSION 5- j', WASHINGTON, D. C. 20555 5 :F
~
(; \, ..,g /
September 19, 1977 NEIGR#iDUM FOR: Chairman Hendrie -
Comissioner Gilinsky .
. Comissioner Kennedy '
Comissioner Bradford .
FROM: James L. Kelley, Acting. General Counsel ,
SUBJECT:
PUBLIC HEARING ON PROPOSED CLEAPRICE RULE (SECY-77-486)
I agree with the Staff's recomendation to conduct a legislative-style hearing in order to provide additional opportunity for interested
~
. persons to participatedin the proposed clearance rule proceeding. The
. Staff makes a persuasive common-sense case for' a public hearing on the basis of the controversial issues involved and the extensive public interest already displayed. ,
However, I'have some questions about the Staff's recomended notice
( and procedures for the hearing, and suggest that more thought be given to what the hearing would look like. The following questions / issues seem to warrant consideration:
www .
- 1. No relevant aspect of the rulemaking need be off-limits for the hearing, but I believe that the Staff should do a~ rough sifting of the written coments to identify specific areas where additional information gathered in a public hearing -
would-be most useful to it and to the Comission. We might'
~
pose specific questions for the participants to address. -
a procedure that is not unusual in the legislative process.
l 2. Relatedly, I would think certain issues might ba identified by the Staff as being of no interest, such as whether 10 CFR part 10 should itself be amended.
~
- 3. Special attention needs to be given to the relationship of t the proposed clearance rule to our other safeguards upgrading -
activities and requirements. One such relationship suggested -
by some is that of security clearances as a " substitute" for i ..
l l
( _
i 8601090269 851223
.3 .
,s The Co. mission' 2 ,
September 19, 1977 pat-dcwn' searches. I don't endorse this view, but caly repeat it.* Another more obvious relationship stems from what will likely be an important issue at the hearing:
is a clearance rule needed? This may implicate in the. :
rulemaking a good deal of the Cocaission's underlying safeguards theory, including its basic safeguards perfor:>
ance objectives. Which of these related requirements, theories, and objectives will be open to consideration at
- the hearing?
- 4. I would leave the question of hearing procedures open for the time being. 5-3 is a possible model. Perhaps optional adjudicatory procedures, on a limited basis, need not be precluded at this time. Relatedly, I racemend that the Staff start collecting all documents and data relevant to the proposed clearance rule for placement in the PDR prior to the hearing, so that interested participants may have
,' access to the infomational basis of the proposed rule. .
- 5, . Some thought might be given to separating out the question
. of clearances at fuel facilities where cost of the activities
( are national-defense related. I recognize the serious draw-backs with so splitting the rule and going effective with -
part of it, but the fuel-facility issues are unique in many 3s, ~, . - respects, and their timing requirenants may be less tolerant of delay.; .
, and other Federal agency participation should be considered. .
. ERDA's special authority in the clearance area -- by virtue i of the Energy Reorganization Act of 1974 -- makes its partici -
pation important. ,
The Staff may be working already on many of these points. However, a hearing on the pmposed clearance rule would be MRC's first safeguards hearing, and I think that special care should be given to its structure.
- I recomend that you approve the general idea of a hearing and publish
- a brief notice of hearing along the lines of the first 2h pages of the i- Staff's proposed notice (Enclosure "A" to SECY-77 486), leaving ques- .
tions of time, place, specific issues, and procedures open for treat =ent in a supplemental notice. -
1 i
.
- Staff have recently requested written public cctment on the search j
requirement, including alternatives to pat-dcwn searches.
, i j cc: Pederser- - - --
- un m l % nar i Hinogue
- i ( EllCLO5UP.E "A"
- NUCLEAR REGULATORY C0:'JIISSIO;!
Special !!uclear flaterial ,
Authority for Access to or Control .
il0TICE OF PUBLIC HEARIllG On Itarch 17, 1977, the fluclear Regulatory Commission published for ,
public comment a proposed regulation (42 FR 14880) which would require
+ ! . certain individuals involved in the operation of licensed nuclear reactors and fuel reprocessing plants; in the licchsed use, processing, or storage
.' of certain quantities of special nuclear material; and in the transporta-tion by the private sector of certain quantities of special huclear material,
( to receive authorization from the Commission for access to or control over special nuclear material. As one element of the Commission's overall
- safeguards program, the purpose of the access authorization program would be to provide a measure of assurance that permitting those individuals to conduct specific activities would not be inimical to the common defense and security and, because an act of sabotaae of a nuclear reactor would
- . have serious radiolooical consequences, the public health and safety *is also a matter of concern. The assurance would result from background -
. ' investigations as to character, associations, and loyalty, conducted under standards and specifications established by the Corraission. ,
'The Commission proposed two levels of special nuclear material access authorization. A higher level, liRC-U, would be based upon a full-field i
J..a
- . t.. :.. . , - '
,.g.*
L.
.n ,
-( background investigation. Tliis clearance level would apply to (i) all individuals who require unescorted . access to special . nuclear material or within vital areas, (ii) those jobs in which an individual alone or in conspiracy with another individual who does not possess an HRC-U special ,
nuclear material access authorization could act to steal or divert special
- nuclear material or to commit sabotage, and (iii) drivers of motor vehicles
'and pilots of aircraft transporting certt.in quantities of special nuclear ,
l material and those who escort road, rail, air, or sea shipments of special nuclear material. A lower level, NRC-R, would be based upon a !!ational
' Agency Check and would apply to all individuals who require unescorted .
,- access to protected areas and wh'o are not.reiuired'to l possess an HRC-U special nuclear material access authorization. Both the full-field back- ,
ground investigation' and the National Agency Check would be performed by
(- .
the Civil Service Commission.' .,
- . %,... y.
The proposed program would be administered by the Commission's Office of Administration which currently conducts a clearance program for NRC employees, contractors, and other personnel . The procedures necessary to l
administer the program for. licensee employees and other individuals who require access authorization are already in use within the NRC. By I
. directly administering the program, the Commi'ssion, by (1) uniformity of application, and (2) established procedures for appeal, would minimize the possibility of excess infringement on the rights of privacy and associ-atton of individuals affected, while providing an effective measure of protection against those who would seek employment with or use their position in the nuclear industry for purposes of thef t or sabotage.
(
l l
.- ._ - ~. - - - _ . - . _ . . .. - .
The Coce.ission invited written coccents or suggestions with respect l
( - to the proposed amendments by l'.ay 16, 1977. The Commission further p stated that if sufficient interest were evidenced by the coaments received, consideration would be given to a public hearing on the proposed regulations. In light of the interest evidenced by the public in' this .
proceeding, the Commission has decided to hold an, informal public hearing
.bntheproposedregulations. The hearing will be' held at 1717 H Street,
. ii.W., Washington, D.C., on ,1977, beginning at a.m.
. The hearing room and the presiding officer will be designated in a notice which will be published in the FEDERAL REGISTER in the near future. ,
! In- prepa ri n g- the- p rep os ed-reg ul a 44 ea si-ame a s- th e-ma tiers- sens ? der ed we re-the- s esp e-e f- th e-i nves t4 g ati ens s -wh e t'h er-p syahel e g i eal- a s s es smen t s hould-be- vequlved s- a nd- th e- vela ti e a- ef- th e- p rep ds e d-preg ram-te- everen t
(' NRG-and-ERdA--persennel-seeur4ty-pregraas--The-Eeaaiss4en-alse-eeas4dered wh ether- new- eri t eri a-s he wid- be- dev el sp ed-a g a i n s t-whi eh-a-desis 4 e a-fer
,.e.,. '
a ss es s-auther4 aati e n-waald-be-mades--Thes e-tep i e s-a re-s till-e f-ceneern '
to-the-Gemaiss4en-and-4t-4s-heped-that-4adividuals-w?th-4afermed-vfews ..
ea-these-matters-will-make-theiv-pesittens-kaewn-during-the-hear?ag-The scope of the public hearing is to encompass all relevant issues raised by the prooosed rule. However, the Cocaission's preparation of .
the rule and the written public co: cents already received have identified -
[the following r.iatters as being of particular importance, upon which the .
coments of individua1s and groups with informed views are specifically requested: .
i l 1. The need for the proposed clearance rule in each of the licensed i
activities covered b_v the croposed rule.
1
! 3
- 2. The identification and advantages / disadvantages of alternative
( programs, such as psychological testing administered by licensees under standards established by the Co. mission, and alternative safeguards measures not involving investigatio_n or testing of licensee caployees. ,
- 3. The impact of the proposed rule on aanpower requirements and costs during planned outages at power reactors. .
- 4. The suitability and relevance of 10 CFR Part 10 derogatory information categories for material access authorization.
- 5. The extent to which a clearance program should be credited towar'd meeting the performance requirement of 10 CFR 73.55 and
.' proposed 10 CFR 5 73.20 (42 F.R. k4312), and particularly toward meeting the postulated threat of internal conspiracy.
- 6. The desirability of applying the rule to university research
( .
and training reactors subject to 10 CFR Part 73. .
ykk J,c..
- 7. Impact of the proposed clearance program on transportation of
In order to have a public hearing oriented toward additional information as well as further coment on policy issues, the following issues are .
not within.the scope of the hearing: ,
- 1. The legality and appropriateness of any section of 10 CFR Part 10 as apolied to clearance progracs for access to flational Security Information, including Restricted Data. ,'
- 2. The leoality of the proposed rule under Section 1611 of the Atomic Energy Act of 1954, as z. Tended. however, written legal argument will be accepted.
'...~/[.,
4 . . .. s. -
. i.ip,
.c .
Also not within the scope of the hearing is the sufficiency or desir-('
ability of the Comission's current safeguards program and the ceasures taken by its staff to implement this program, except to the extent that these matters directly bear on the need for a clearance rule. -
Interested persons are invited to attend the public hearing and
~
present oral or written statements as provided below. Any person who intends to present views, either orally or in writing, at the public hearing should furnish in writing his name and the name of the organization he represents, if any, to the Secretary of the Commission by
, 1977. The provisions of Subpart G, " Rules of General Applica-bility," of 10 CFR Part 2, the Commission's ."ru.les of practice," uill not be applicable because the public hearing will be a part of an informal rulemaking proceeding. ,
( The procedural format ~for.the public hearing will follow the y ,,y ,
legislative pattern. !!o discovery or cross-examination of witnesses will be allowed. However, the Commission is specifically considering_
the possibility of entertaining, at the close of the hearing, requests _
to permit cross-examination of particular witnesses on specific factual issues as to which the requestor believes the informal hearing procedures called for in this notice have not been adequate for a scund decision, and will decide whether to permit this procedure no later than the time of commencement of the hearing. Additionally, the !!RC Staff has placed .
in the Public Document Room (1717 H Street, !l.t.'., Mashington, D.C.) all .
documents 'and information relied upon in the preparation of the proposed rule, and participants are urged to consult this material in fornulating_
i 5 ,
.~ . . .
k their presentations. The hearing vill be conducted as informally and as expeditiously as practicable, consistent with affording participants a reasonable opportunity to present their positions. Those participating in the hearing may, but need not, be represented by counsel. ,
P.elevant written statements will be received and those participating, depending upon the number of requests receivedna'd the time available, may be permitted to make brief oral statements of their views either in ,
addition to, or in lieu of, written submissions. Persons making oral statements will not be sworn. Persons offering written or oral statements at the hearing may be asked questions by the presiding officer. Partici-9 '
~
' pants also will be afforded the opportunity,' depe'nding on the number of requests and the time available, to suggest questions to the presiding
(
officer to be asked the other participants. 'All written and oral statements made will be incorporated in the record of the proceeding (comments received a.m ,
by the Commission in response to its notice of !! arch 17, 1977, are already part of the record and need not be duplicated).
The presiding officer. is authorized to take all necessary and ,
appropriate action to control the course of the public hearing, including, ifthe response to this notice warrants, the holding of one or more procedural planning sessions. 'A transcript 6f the hearing will be made.
and a copy of the transcript, together with copies of all documents' ,
presented at the hearing, will be placed in the Commission's public document room,1717 H Street, fl.W., Washington. 0.C., where they will be
- available for inspection by members of the public.
The Commission intends to invite the participation of the Department of Cnergy, the Civil Service Comission, the Department of Defense. and
. .' N
. ' g:.
[. ]' ',
(.
the Federal Bureau of Investigatiori. These federal agencies possess particular expertise in various matters relevant to the proposed rule.
At the conclusion of the public hearing the record will be held open for a period of 30 days during which time any person may file such supplementary written statements as may be deemed appropriate in light ,
of the hearing record. After the 30-day period expires, the presiding .
officer, without rendering any decision or making any recommendation, will forward the transcript of the hearing to the Coamission together with an identification of the major issues raised at the hearing. The Commission will carefully consider the trans*criptof the hearing and written comments received in the proposed rulemaking as well as ther -
(_ relevant considerations and factors, and, after reaching its determination
. . .g* in the rulemaking proceeding, will cause an appropriate notice to be .
published in the F8DERAL REGISTER. .
Dated at Washington, D.C. this day of ,1977.
FOR THE !!UCLEAR REGULATORY COWilSSION Samuel J. Chilk Secretary of the Commission e
s, ....
y