POLICY ISSUE

NOTATION VOTE

August 3, 2007 SECY-07-0129

FOR: The Commissioners

FROM: Luis A. Reyes

Executive Director for Operations

SUBJECT: REVISIONS TO POLICY GOVERNING PUBLIC AVAILABILITY OF

INFORMATION ASSOCIATED WITH CATEGORY I FUEL FACILITIES

PURPOSE:

To obtain Commission approval of proposed revisions to the U.S. Nuclear Regulatory

Commission’s (NRC) policy regarding public availability of information pertaining to Category I

fuel facilities that provide services under contract to the U.S. Department of Energy (DOE). The

revised policy would make more information available to the public. 

BACKGROUND:

In conjunction with the 2007 Agency Action Review Meeting and the development of the 2006

Abnormal Occurrence Report to Congress, the Commission directed the staff to re-evaluate 

the criteria used to determine whether information associated with the Category I fuel facilities 

is made available to the public [see Staff Requirements Memorandum (SRM) M070530C, dated

June 22, 2007]. The NRC staff developed its existing guidelines based on an assessment of

the sensitivity of the information already in the public domain as of 2004. The staff transmitted

these guidelines to the Commission in SECY-04-0155, “Request from Department of Energy

Office of Naval Reactors to Designate Information Related to Nuclear Fuel Services, Inc. and 

BWX Technologies, Inc. as Official Use Only.” In SECY-04-0155, the staff informed the

Commission that it initiated action to deny public access to approximately 1,700 full text 

CONTACT: Michael Lamastra, NMSS/FFLD

 (301) 492-3105
The Commissioners -2-

documents in the Agency-wide Documents Access and Management System (ADAMS), as well

as about 10,000 documents in the Public Legacy Library, and planned to treat future

correspondence and other documents related to the Category I fuel facilities [Nuclear Fuel

Services (NFS) and BWX Technologies, Inc. (BWXT)] as, “Official Use Only” (OUO)

Information, unless the documents contained Restricted Data or National Security Information.

Under an agreement that dates back to the late 1990s, DOE has served as the Cognizant

Security Authority (CSA) for classified information at NFS and BWXT to avoid duplicative, and

thereby potentially inconsistent, control of information security. In May 2004, DOE sent a letter

to the NRC which stated that documentation pertaining to DOE activities pertaining to Naval

Reactor programs at NFS and BWXT should be considered, at a minimum, OUO information. 

DOE’s position was based on an analysis of publicly available information released by the NRC,

and DOE expressed concern that public access posed a threat to national security. The staff

prepared the 2004 guidelines in response to DOE’s letter and although DOE’s analysis focused

on BWXT’s and NFS’s activities conducted under contract with DOE, the NRC staff adopted a

policy resulting in a more comprehensive withholding of information associated with these

licensees because of the similarities of processes and the potential value of information

associated with non-DOE activities to potential adversaries.

On June 18, 2004, the staff responded to DOE/Naval Reactors (NR) stating that NRC agreed,

with the exception of non-NR commercial information, that the future submission of information

to the NRC regarding these two licensed facilities would be treated as OUO at a minimum, and

would not be made publicly available. Based on numerous meetings between the NRC and

DOE staff, NRC staff understood that DOE would provide guidance to NFS and BWXT for

clearly marking sensitive information in a manner consistent with DOE’s designation of the

information as OUO. The NRC staff has implemented this approach since 2004, so most

information regarding these two licensed facilities has been withheld from the public.

Recently, NRC’s Congressional oversight committees have raised concerns with NRC’s policy

of withholding information, particularly with regard to the NFS spill event in March 2006. The

NRC released limited information regarding the event in a notification to the International Atomic

Energy Agency in May 2006 and in the 2006 Abnormal Occurrence Report to Congress, which

was published in May 2007. In several letters, members of Congress expressed displeasure

with NRC’s failure to provide Congress with timely information on the March 2006 incident, but

also with NRC’s withholding policy. Congressmen Dingell and Stupak, in a letter to the

Chairman of the NRC dated July 3, 2007, requested that the “NRC make every effort to withhold

from public view only those documents that contain sensitive security information, and restore to

the public view all other documents that have been withheld as a result of the August 2004

OUO policy.” Congressmen Barton and Whitfield recommended the same approach in a letter

to the Chairman also dated July 3, 2007. Senator Inhofe, in a letter to the Chairman dated

July 13, 2007, also expressed concerns about the agency’s information disclosure policies

regarding NFS, as did Senators Carper and Voinovich in a July 17, 2007, letter to the Chairman. 

These concerns reinforced the Commission’s direction to re-evaluate the 2004 policy. 

DISCUSSION:

Following the terrorist attacks of September 11, 2001, the NRC conducted several reviews of

information that was made publicly available, to determine whether public access should be
The Commissioners -3-

maintained or adjusted. The early reviews focused primarily on potentially sensitive information

regarding nuclear power plants. DOE’s request to the NRC to reduce public access of

information pertaining to NFS and BWXT occurred in late Spring of 2004. Subsequent concerns

in the Fall of 2004 regarding public accessibility to information that could be Security-Related

Information prompted the NRC to deny public access to a large amount of information until it

could be systematically screened to remove sensitive information that could be exploited by

adversaries. This effort ultimately culminated in the establishment of a broad staff policy for

protecting Sensitive Unclassified Non-Safeguards Information (SUNSI), which was announced

and implemented in 2005 (Yellow Announcement No. 77, “Policy Revisions: NRC Policy and

Procedures for Handling, Marking, and Protecting Sensitive Unclassified Non-Safeguards

Information”).

The criteria for determining whether information pertaining to NFS and BWXT should be

withheld from the public described in SECY-04-0155 predated the more systematic and broadly

applicable guidelines contained in the SUNSI policy and procedures that were transmitted to the

Commission in COMSECY-05-0054, “Policy Revision: Handling, Marking, and Protecting

Sensitive Unclassified Non-Safeguards Information (SUNSI).” The earlier 2004 guidance

resulted in the withholding of more information and is based on a less comprehensive security

analysis by the NRC staff than the more refined guidelines that are being implemented for other

facilities under the SUNSI policy. 

Continued application of the policy set forth in SECY-04-0155 can be expected to prompt further

questions about whether NRC is withholding information associated with NFS and BWXT that, if

publicly disclosed, would not raise security concerns. For example, the staff recently concluded

that the Confirmatory Order issued to NFS in February 2007 needed to be published in the

Federal Register to allow interested parties the opportunity to request a hearing. In addition,

NRC’s decision to withhold the event notice for the March 2006 potential criticality event limited

some nearby residents and other stakeholders of knowledge about the event and the response

actions taken by NFS and the NRC. In publishing the Order, in the Federal Register, the staff

determined that the security information protected as OUO information could now be

decontrolled in the interest of public involvement since the security issues had been mitigated

by corrective actions. 

In re-evaluating the existing policy, the NRC staff recognized that the NRC is obligated, under

Section 189 of the Atomic Energy Act, to make public information regarding proposed license

amendments and enforcement orders, to allow members of the public the opportunity to request

a hearing. The NRC had not been making many of these actions pertaining to NFS and BWXT

public pursuant to the 2004 policy and is now in the process of making information about those

actions available to the public in ADAMS. The NRC staff is also cognizant that the NRC, upon

receiving a Freedom of Information Act (FOIA) request, is only permitted to withhold from the

public information that falls within one of the FOIA exemptions.

As a result of its review, the staff developed three options for the Commission’s consideration.

These options are as follows:

Option 1: Apply SUNSI guidance to newly generated documents related to NFS and BWXT;

except for proposed actions covered by Section 189 of the Atomic Energy Act, do not prepare 

and release redacted versions for the public of documents that contain sensitive information.
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Option 2: Apply SUNSI guidance to newly generated documents related to NFS and BWXT;

prepare and release redacted versions for the public. 

Option 3: Apply SUNSI guidance to all documents related to NFS and BWXT; prepare and

release redacted versions of documents containing sensitive information. This would include a

retrospective review of documents previously generated that are now in non-public ADAMS. 

Under Section 189 of the Atomic Energy Act, make public, information regarding proposed

license amendments and proposed Orders.

The pros and cons associated with each option, including the resources required to implement

these options, are summarized in the Enclosure to this paper.

There is a separate issue associated with public access to licensing and oversight information

related to safeguards and security at these fuel cycle facilities. The staff uses the SUNSI

guidance, in conjunction with the classification guide “Classification and UCNI Guide for

Safeguards and Security Information (CG-SS-4),” dated September 2000, to determine

appropriate information controls. In 2006, the NRC revised its approach to withholding security

oversight information under the Reactor Oversight Process as discussed in SECY-06-0036,

“Public Disclosure Options Within The Security Cornerstone of the Reactor Oversight Process.” 

Based on the experience to date with this revised approach, the staff is developing options to

increase openness of its oversight of security at nuclear power plants and make comparable

adjustments in the procedures for releasing security oversight information associated with the

fuel cycle and spent fuel facilities. The staff will provide a paper to the Commission regarding

these procedure changes by October 2007.

RECOMMENDATION:

As a result of the staff’s re-evaluation, the staff recommends that the Commission adopt 

Option 3. The staff would implement it to the extent that resources are available to support the

retrospective review of documents pertaining to NFS and BWXT. The work to implement this

option is currently an unbudgeted activity. If no additional funds are authorized to perform this

work, staff would reprogram resources allocated for two fuel cycle renewals which would delay

licensing into FY-10. To accommodate resource constraints, the staff would use several rehired

annuitants to assist in the document review to expedite the release of information consistent

with the NRC’s SUNSI guidance. Staff has determined that it would take approximately eight

months to complete the retrospective review and release of documents.

COORDINATION:

The staff of DOE has reviewed the proposed policy and believes expectations for redacted

documents need to be defined and the process for releasing documents needs to be

addressed. DOE has noted that releasing documents in batches would facilitate the notification

of stakeholders and the processing of questions. The NRC staff believes these issues can be

addressed in communication plans and other implementation documents after Commission

direction is received.
The Commissioners -5-

The General Counsel has reviewed this paper and has no legal objections. The Chief Financial

Officer has reviewed this paper and has no resource objections.

/RA/

Luis A. Reyes

Executive Director

 for Operations

Enclosure: 

Revisions to Policy Governing Public 

 Availability of Information Associated 

 with Category I Fuel Facilities
The Commissioners -5-

The General Counsel has reviewed this paper and has no legal objections. The Chief Financial

Officer has reviewed this paper and has no resource objections.

/RA/

Luis A. Reyes

Executive Director

 for Operations

Enclosure: 

Revisions to Policy Governing Public 

 Availability of Information Associated 

 with Category I Fuel Facilities

ML072080036 WITS 200700196/EDATS: SECY-2007-0225

OFFICE FFLD FFLD TECH ED FFLD OGC

NAME M.Lamastra V.Cheney

(P.Habighorst for)

E.Kraus P.Habighoust T.Rothschild

(NLO) (via e-mail)

DATE 07/25/07 07/25/07 06/21/07 07/27/07 07/27/07

OFFICE REG II CFO OE OIS NSIR

NAME J.Henson

(via e-mail)

W.McCabe

(L.Barnett via e-mail)

C.Carpenter

(via e-mail)

E.Baker R.Zimmerman

(R.Caldwell via e-mail)

DATE 07/26/07 07/26/07 07/24/07 07/26/07 07/26/07

OFFICE FCSS NMSS EDO

NAME R.Pierson

(B.Smith for)

M.Weber L.Reyes

DATE 07/27/07 07/27/07 08/03/07

OFFICIAL RECORD COPY
Enclosure

Revisions to Policy Governing Public Availability of 

Information Associated with 

Category I Fuel Facilities

Option 1: Apply SUNSI guidance to newly generated documents related to NFS and BWXT; 

except for proposed actions covered by Section 189 of the Atomic Energy Act, do not prepare 

and release redacted versions for the public of documents that contain sensitive information.

Pros 1. Applicable Agency-wide for all documents related to BWXT and NFS. 

2. Appears to meet the intent of DOE/NR’s concern in 2004, because all 

documents being marked by NFS and BWXT as sensitive will continue to

be withheld, and the SUNSI guidance will withhold NRC-generated

sensitive documents. 

3. Staff knowledgeable in using SUNSI guidance. 

4. Minimal resource commitment to review future DOE/NR and NRCgenerated documents.

5. Affords members of the public an opportunity to request a hearing under 

Section 189 of the Atomic Energy Act.

6. Addresses recent inquiries involving events at NFS and BWXT. 

7. Supports Agency value of Openness.

Cons 1. Some additional unbudgeted resources required to perform SUNSI review.

2. Some additional training of DOE/NR contractor in applying SUNSI review 

criteria. 

Resources 

Estimates

Estimated full-time 

equivalent (FTE): 0.4 each FY or $56K.

Assuming that NRC receives or prepares about 511 documents for BWXT

and NFS per year, and we spend 1.0 hr per document to perform a SUNSI

review, this would result in approximately 511 staff hours or 0.4 FTE. per

year at $140K per FTE = $56K.

Budget Years: FY 07, continuous.

Work Impacts: Due to the small level of resource needs, the staff would

implement Option 1 without the need for additional resources

in the budget.

Resources Currently Budgeted: Unbudgeted activity.
-2-

Option 2: Apply SUNSI guidance to newly generated documents related to NFS and BWXT; 

prepare and release redacted versions for the public. 

Pros 1. Applicable Agency-wide for all documents related to BWXT and NFS. 

2. Appears to meet the intent of DOE/NR’s concern in 2004, because all 

documents being marked by NFS and BWXT as sensitive will continue to 

be withheld, and the SUNSI guidance will withhold NRC-generated 

sensitive documents. 

3. Staff knowledgeable in using SUNSI guidance. 

4. Affords members of the public an opportunity to request a hearing under 

Section 189 of the Atomic Energy Act.

5. Addresses recent inquiries involving events at NFS and BWXT. 

6. Supports Agency value of Openness.

Cons 1. Additional unbudgeted resources required to perform SUNSI review, other 

than in Option 1 for the preparation of public versions of NRC generated 

documents.

2. Some additional training of DOE/NR contractor in applying SUNSI review 

criteria. 

3. Some additional resources required for BWXT and NFS to prepare public 

versions of document.

Resources 

Estimates

Estimated FTE: 0.8 each FY or $112K

Assuming that NRC receives or prepares about 511 documents for BWXT

and NFS per year, and we spend 1.0 hr for each document to perform a

SUNSI review criteria and spend an additional 1.0 hr preparing a public

version, this would result in approximately 1022 staff hours or 0.8 FTE. per

year at $140K per FTE = $112K 

Budget Years: FY 07, continuous

Work Impacts: For performing the SUNSI review, the staff would implement

that portion of Option 2 without the need for additional

resources in the budget. The staff would need approximately

0.4FTE or $56K of contract support for preparing a public

version of documents. 

Resources Currently Budgeted: Unbudgeted activity.
-3-

Option 3: Apply SUNSI guidance to all documents related to NFS and BWXT; prepare and 

release redacted versions of documents containing sensitive information. This would include a

retrospective review of documents previously generated that are now in non-public ADAMS.

Pros 1. Applicable Agency-wide for all documents related to BWXT and NFS. 

2. Appears to meet the intent of DOE/NR’s concern in 2004, because all

documents being marked by NFS and BWXT as sensitive will continue to

be withheld, and the SUNSI guidance will withhold NRC-generated 

sensitive documents. 

3. Staff knowledgeable in using SUNSI guidance. 

4. Affords members of the public an opportunity to request a hearing under

Section 189 of the Atomic Energy Act.

5. Addresses recent inquiries involving events at NFS and BWXT. 

6. Supports Agency value of Openness.

Cons 1. A significant amount of additional unbudgeted resources required to

perform SUNSI review of documents in ADAMS currently listed as nonpublic. Other work activities would need to be delayed.

2. Some additional training of DOE/NR contractor in applying SUNSI review

criteria. 

Resources

Estimates

Estimated full-time 

equivalent (FTE): 3.8 FTE or $532K.

Option 2 resources of 0.8 FTE per year. Plus, currently, there are

approximately 1900 documents for BWXT and NFS in ADAMS from

January 2004 to date, that are not currently publicly available, and if we

spend 1.0 hr for each document performing a SUNSI review and an

additional 1.0 hr for each document preparing a public version it would 

result in approximately 3800 staff hours or 2.7 FTE. For a total of 3.5 FTE

or $490K (for FY-08) review resources. The staff also assumed that OCIO

would require 0.20 hrs to return the documents or scan redacted

documents into ADAMS. This would result in approximately 380 hrs or 0.3

FTE. Total: 3.8 FTE or at 140K per FTE = $532K.

 

Budget Years: FY 08 for retrospection review; FY 07, continuous, for

prospective review.

Work Impacts: For performing the SUNSI review of the prospective portion of

Option 3, the staff would implement that portion, without the

need for additional resources in the budget. The staff would

need approximately 3.4 FTE or $476K of contract support for

preparing a public version of documents and having the

redacted documents placed in ADAMS for the retrospective

portion. If no additional funds are authorized by the

Commission to perform Option 3, staff would reprogram 2.0

FTE and 250K currently allocated for performing 2 fuel cycle

renewals. This will delay licensing decisions into FY-10.

Resources Currently Budgeted: Unbudgeted activity.