Text

Responds to Re Strengthening & Clarifying Federal Laws Related to Physical Security at Nuclear Facilities. Comments on Specific Areas in Ltr Re Sabotage,Guards, Personnel Selection & Protection of Safeguards Info
	ML19321A620
Person / Time
Issue date:	06/12/1980
From:	Ahearne J; NRC COMMISSION (OCM)
To:	Walske C; ATOMIC INDUSTRIAL FORUM
Shared Package
ML19321A621	List: ML19321A620; ML19321A623;
References
	NUDOCS 8007230745
	Download: ML19321A620 (12)
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UNITED STATES NUCLEAR REGULATORY COMMISSION

> #04'q WASHINGTON, D.C. 20555

- kTQ orries or THs June 12, 1980 CHAIRMAN tir.. Carl Walske, President

-Atomic Industrial Forum, Inc.

7101 Wisconsin Avenue Washington, D.C.

20014

Dear Mr. Walske:

This is in response to your letter of February 22, 1980 expressing the views of the Atomic Industrial Forum's Comittee on Domestic Safeguards concerning the need to strengthen and clarify federal laws related to physical security at nuclear facilities.

I regret this reply was not more prompt.

Your letter set forth four specific areas in which you requested our consider-ation aid appropriate action. We have the following comments on those matters:

1.

Sabotage of Nuclear Facilities You commented that the sabotage, attempted sabotage or threat of sabotage of nuclear production or utilization facilities should be a federal criminal offense. Also, you recommend that there be a federal trespass law for pro-tected areas of nuclear power plants at fuel cycle facilities.

Existing federal criminal laws on sabotage require proof of an intent to injure, interfere with or obstruct the national defense or war effort.

See 18 U.S.C. 2151 et seq.

Congress is currently considering adding a new Section 235 to the AEmic Energy Act of 1954 entitled " Sabotage of Nuclear Facilities or Fuel." That section would authorize criminal penalties for the wilful and intentional damaging of nuclear facilities, storage and disposal facilities, and'special nuclear or byproduct material.

While the Commission has not taken a formal position concerni.ng this amendment, it is clear that if enacted it addresses in a significant way many of the con-cerns you have expressed.

On the other hand, we know of no active congressional consideration of enacting a federal trespass law for nuclear facilities.

Such a provision would be far-reaching and would depart from traditional views of what matters lie in the domain of the several states.

Further study evidencing the need for such legislation and subsequent careful drafting to impinge no more than absolutely necessary on states' rights would be necessary before the Com-mission could support such a legislative proposal.

f 2.

Rights and Responsibilities ~of Guards'and'Use of Deadly Force

[

You question the legal basis for the NRC regulation requiring the availability l

of deadly force to protect special nuclear material and express the view l

that a federal law is needed for nuclear facility guards to be able to carry out the intent of the regulations requiring use of deadly force and to deal with such issues as pursuit, retention and-search of suspects.

8007230M6

Mr. Carl Walske You correctly state that by regulation certain nuclear facilities must have available deadly force. The Comission in issuing such r.egulation has taken the position that adequate legal basis exists for the requirement.

See e.g.,

43 Fed. Reg. 35321, 35323-35325 (1978) and Security Agency Study (NUREG-0015) cited therein.

Relevant pages are attached for your convenience.

3.

Personnel Selection'and Screening Your coments advise that revisions are underway'on ANSI N18.17 and that the Committee has developed what it believes to be a satisfactory personal screen-ing program for a"thoring unescorted access to nuclear power plants.

In support of this ph.i. you suggested federal legislation -- likely a Privacy Act exemption -- to ensure the availability of criminal records for a record check as a part of a reliability program.

As you are aware, the Comission has currently under consideration in rulemaking (RM 50-7) a proposed material access rule that would establish a government conducted program.

Until a decision is reached in this matter it would be premature for the NRC to state that a new statutory exemption to the Privacy Act "to ensure the availability of criminal records" to industry employers was necessary.

In this regard we recall utility participants assurance to the hearing board in that proceeding that " criminal history information is available

[to industry], contrary to the NRC's contention that statutory prohibitions pre-ven_t local utilities from getting this information." Report of the Hearing Board,. In the Matter of Authority'for Access'to or' Control Over Special Nuclear Material (RM 50-7), April,-1979, p. 57.

4.

Protection of Safeguards Information You state that there is a need for a federal law to protect the sensitive details of security plans from release through legal intervention or theft, and specifically that a Freedom of Information Act (F0IA) exemption is needed.

The Commission requested the Congress to enact a new Section 147 of the Atomic Energy Act for the purpose of exempting certain safeguards information from disclosure under F0IA. While this legislative proposal has been changed in several respects during its consideration by the 96th Congress, the Conference Comittee has reported a provision which establishes a statutory exemption from F0IA disclosure for safeguards information, specifically including security plan 1nformation, as part of NRC's FY 80 authorization legislation.

The new provision will also authorize NRC to issue rules to protect safeguards infor-mation. Violation of the rules will be subject to civil monetary penalties as well as criminal penalties as provided in Section 223 of the Atomic Energy Act for violations of regulations issued under the authority of Section 161b of the Act.

Our proposal did not address any effort to protect security plans from release through legal intervention.

The Commission's policy and pro-cedures regarding release of security plan information to intervenors in licensing proceedings is currently being refined in the Matter of' Pacific Gas

& Electric Co. (Diablo Canyon), Docket Nos. 50-275 and 50-323 OL.

O

Mr. Carl Walske I hope that this brief review of the current status of the issues you have addressed will prove helpful.

Except for legislation to give licensee. guards expanded legal protection (the need for which hac not been clearly established, in our view), the Congress now appears to be in the final phases of. enacting statutory provisions in each of the areas mentioned in your February letter.

The Commission will be assessing the adequacy of these legislative measures during the process of implementing any which are adopted. We would appreciate the continuing participation and interest of the AIF Committee on Domestic Safeguards in the implementation process.

Sidcerely, l'

)(

John F. Ahearne Chairman Attachments:

1. 43 Fed. Reg. 35323-35326 c

2. NUREG-0015 5

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PROPOSED RULES 35323 i

~ proposed rule. Response to~these ques-(b) Commenters stated.that without design guidance documents.and the (7.d 7,3 tions is made in several ways:

bounds the threat could not be used eva3uation criteria documents. En-

a. Definitions are added for deceit, effectively as a general performance forcement of the regulation will be stealth and force;,

requirement since licensees would not based on the specific approved licensee

b. Changes in wording and language know the bounds to place on their plan. -

are made to make the meaning clear physical protection systems. Com.

(c) Commenters stated that.the -

without special definition; (in particu-menters stated that a licensee could threat or general performance require-lar extensive changes were made to not know whether his physical protec-ment should be applied in relation to 173.25 to more clearly define the re-tion system met the requirements be-the consequences of a successful ad-quired transportation protection capa cause no bounds were given for the versary action as~ wen as in relation to bilities);

threat and general performance re-the usefulness of the material for ma-

.c. Guidance as to.the intent of a q'uirements, levolent uses.

term is provided by means of a regula-The purpose of the threat defined in Due to the disasterous consequences tory guide or NUREG document, e.g. the proposed amendments is to define ~ of the successful detonation of a clan-duress alarms are the subject 'of a the general character of the, domestic destine weapon conservative pohy forthcoming NUREG report; or.

safeguards challenge. It is intended to dictates the. need to consider safe.

d. No rhange is made because the provide a design basis for physical pro-guards systems exclusive of other con-wording appeared to be.sufficiently tection systems; therefore, additional-siderations such as the form of the clear.

adversary attributes are not necessary strategic special nuclear material and (13) There was considerable confu-to serve this purpose. Physical protec-the~ probability of an adversary con-slon with regard to the present sec-tion systems, when designed to the structing a nuclear fission device. Nev-tions in part 73 and what would level specified in the general perform-ertheless in one instance the rule has happen to them. The statement of ance sections of the rule and in accord-been strengthened by requiring mate-considerations for the proposed rule ance with the reference system speci-rial directly useable in a nuclear fis-indicated that they would be deleted fled in the rule and other design guld-slon device to be stored only in a vault.

but the amendments themselves did ances to be provided along with the (2) Use of deadly force. Comments not. The revised amendments have final rule, will be responsive to a gen-indicated that requiring private guards been changed to state which sections eral range of threats characterized by to in'.erpose themselves and to use would be deleted and when. It is noted that stated in the regulations.

deadly force could be in conflict with that ! 73.501: not-being deleted at this With respect to specific numbers of State and local laws and was beyond time but being revised to apply only to adversaries, the numbers re not as what should be expected of private in-spent fuel storage other than at a significant as are the capabilities and dustry. It was suggested that legisla-power reactor.

resources of the adversary. For exam-tion be obtained to permit protection (14) Comments stated that there was ple, the threat from a disorganized of s' ategic special nuclear material by insufficient time to properly plan a re-mob of 50 or so people is much differ-use of deadly force and that seizure or f7 vised security program and to imple-ent from that of only a few well orga-diversion of strategic special nuclear

-6 ment it. The Commiulon agrees that n! zed, well trained people.

material be made a Federal offense

~

adequate time must be allowed for Given that the described threat is a with severe criminni penalties im-proper planning and implementation design basis for a physical protection posed.

to assure effective programs. The rule system, additions 1 design creteria are The Commi"lon has carefully con-has been changed to aUow more time-given in the forra of required system sidered the use of deadly force in the for both planning and implementa-capabilities. These capabilities are fur-overall system of protection of formu-tion. AUowance also has been rnade for ther supported by the subsystems and la quantities of strategic special nucle-instaBation and construction that may. components of the reference systems ar material. A preliminary observation require longer than the specified times in the regulations designed.to meet is that armed private industrial guards in specific cases.

the general performance requirements are, in fact, commonplace.-They are In addition to the comments that re-and required capabilities. Additional found in airports, banks, with armored sulted in changes in the proposed guidance to assist the licensee in the trucks transporting currency, in the amendments a number of other issues design of his safeguards system is in employ of raDroads, and frequently in were raised which resulted in no preparation and will be promulgated large shopping centers. Thus, the re-changes to the proposed amendments in regulatory guides and NUREG re-quirement fur armed guards to protect but which warrant discussion and ex-ports. This type of guidance will pro-property is nct a departure from an planation.

vide the logic to relate the subsystems accepted industrial practice.

(1) ExterncZ tArect end general per-and components of physical protection Section 73.46(h)<4) of the proposed formence requirements. Comments systems to the required capabilities amendments states certain basic rules were directed at several aspects of the and the general performance require-on how armed guktds are to function.

threat and its application as a general ments. This logic will provide design The rule as stated in f 73.46(h) is not performance requirement. The com-criteria that may be used by the 11-new, it merely repeats verbatim pres-ments can be categorized generauy as censee and show how the general per-ently effective 10 CFR 73.50(g)(2). A foHows: (c) Level of threat; (b) defini-fonnance requiremers and system ca-recent amendme' nt to this paragraph tion of threat;(c) application of gener-pabilities may be uvd in the design of further clarified expected guard re-

. al performance requirement, a specific physica' rarotection system. sponse. (See 42 FR 64103.)

1 (a) Comments were made that the Draft copies of tQ guidance will be In view, however, of the comments threat was not supported by evidence. circulated for canment. Further,11-received, some considerations may be Some commenters felt the threat was censees will obtun guidance through repeated and restated for clarification.

not conservative enough while others the issuance of license review criteria First: An authorized guard. as a person 1

felt it was overconservative, for use in physical protection system fulfilling a legally recognized role in The Commfulon directed that a re-design and in the IIcense review proc-protecting property, is generally under 1

evaluation of the threat studies be ess. Appropriate references to applica-no duty to retreat from a threat to his conducted by the staff. The results of ble regulatory gu! des, NUREG docu-life in the performance of his job. In

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this reevaluation do not impact the ments and other publications respon-many States there is simply no duty to l. h;.

level of threat to be considered in safe-sive to specified regulatory require-retreat (e.g., People v. Estrada, 213 P.

guards system design.

ments win be provided in both the 67 (Calif.1923);, Perez v. State, 300 P.

i

)

FEDERAL REGISTER, YOt. 43, NO.154-WEDNESDAY, AUGUST 9,1978 I

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35324 PROPOSE 3 RULES 428 (Okla.1931)). In other States a Licensees who' believe any.part of equally effective. In addition, the Se-person need not retreat in his place of the guard resp 7nse rule to be demon-curity Agency study (SAS) reviewed al hm business (e.g., State v. EeZtoric,110 strably Elegal under the law of their-number of other issues applicable to Conn. 303,147 A. 801 (1929)).1t is also respective juris6ictions may always re-- the question of whether Government.

accepted common law that a person quest an exempt'.,a. However, guard or private guards should be responsi-liwfully arresting need not. retreat in response is viewed as an important ele-ble for nuclear secunty and concluded face' gi resistance (see e.g., Purdon's ment of the physical protection that.there was no reason this responsi-Pennrylvante Statutes, Annotated, system and any relaxation of the rule bility should not continue to rest with section 18-505(bX2X11XB)). A guard's la this regard would require a com-the private sector. Since this rule does

~f job includes the investigation of intru-mensurate strengthening of other not increase safeguards requirements beyond those considered by the SAS, siins cr unauthorized entry to protect-system components.

ed arcas. If circumstances warrant, The CommMion does not believe its conclusions remain valid.

gin:raDy the guard may arrest for an legislation is required in the mat'er of Nevertheless, Government has a re-giftnse committed in his presence the use of deadly force nor is le;ssla-sponsibility to assist licensees in the (such offenses may range from tres-tion required to impose penalties for protection of their facilities against pass under local law to a felony under theft or diversion of strategic special theft of strategic special nuclear mate-Fedtral law, an attempt to steal or nuclear material. The Atomic Energ7' rial particularly in the face of deterio-div:rt special nuclear material; see sec< Act of 1954 as amended, already pro-rating civil order. This fact is recog-tiin 222 of the Atomic Energy Act of vides severe penalties for the unau* nized in both the proposed Ipgrade' 1954, as amended. 42 U.S.C. 2272).

thorized possession, or attempt to gain rule and the recently published con-An:ther aspect of the response re-possession, of special nuclear material

tingency planning rule (43 FR 11962) quiremint also requires clarification. Section 57a. of the act (42 U.".

2077)-

Regarding the specific reasons why Th2 requirement as now written, makes it unlawful for any person to commenters recommended Govern-adopted verbatim from 10 CFR acquire or possess special nuclear ma-ment guards, the first, that the private.

73.50(gX2), places a duty on licensees terial without a specific or general li-sector cannot satisfy the transporta-to instruct their guards to prevent or cense issued by NRC. Section 222 (42 U n reqCements with commerciany impede acts of radiological sabotage or U.S.C. 2272) makes it a felony to wil-avanaMe equipment, is not vaM The th ft of strategic special nuclear mate. funy violate, attempt to violate, or staff has made numerous changes to rial and that they may use force as conspire to violate section 57.The pen-the proposed rule which are respon-necessiry to counter force directed at alty may be a fine up to $10,000, im-sive to public comments and as mod!-

them, including the use of deadly prisonment for up to 10 years, or both.

fled, the transportation requirements force when the guard believes it rea. If the offense is committed with an of the rule can be satisfied with com-sonably necessary in self-defense or intent to injure the United States or definsa of others. Note that the re-to secure an advantage to any foreign mercially avaDable equipment. Re-garding the second reason cited, the quirement is to instruct guards to pre-nation, the punishment may be im-proposed threat level is reflective of a vtnt or impede attempts at theft, not prisonment for life, or any term of number of stucifes which were ext.ra-Q to require guards to use force without years, or a fine up to $20,000, or both.

discretion. The licensee is also to tell (3) Use of Government guards. Com-polated from historical evidence, com-munications with various law enforce-his guards that they may use force, menters stated that the level of force but only the amount of force commen-required by the rule is beyond that ment agencies, review of actual or surate with force directed at them-which should be expected of private threatened violence in the commercial the guards. Thus, if an intruder uses industry. One commenter recommend, nuclear industry, and prudent judg.

no force, the guard is not caHed upon ed that NRC restudy the use of public ment by NRC staff based on consider-to use force. Deadly farce is referred sector personnel to guard licensed stion of all of this informatlon. The to only in the contexc of self-defense strategic special nuclur material. Spe. results of these studies are reflected in and defense of others. It is expected, cificany, commenters gave several rea. the Joint FRDA/NRC Task Force as a minimum, that the employer of sons for these comments, including. report (NUREG 0095) and the armed guards will aHow a guard to use (1) That the private sector cannot sat-GESMC safeguards study (NUREG his weapons when the guard has a rea-Isfy the proposed transportation re.

0414). which recommended protection sonable belief it is necessary to pre-quirements with commercially avalla. against essentially the same threat vent death or grievious bodDy injury. ble equipment; (2) there is no evidence level Es that established in the rule, Indeed, in view of the reference to support the design threat level Both of these reports reflected the system requirement that he investi-stated in the rule, and, therefore, if threat information avanable to their gate intrusions or unauthorized en-the Goyernment establishes a need to preparers at that time. In addition, tries and try to forestan theft, dint-protect against such a threat, the Gov. the results of a current thorough sion. or sabotage, it is seen as essential ernment should do it; (3) the rule is so review of au threat information availa-for the protection of the guard to open-ended only Federal forces enuld ble to the Commhtlon at this time allow him to use his weapons under satisfy it; and (4) private SWAT does not provide any basis for chang-i such circumstances.

teams" should not be created to sup-ing the design threat.

It is important also to point out that press crime.

Regarding the third reason, that the tha riecision to use force, including The Security Agency study, done in rule is too open ended, the phrase deidly force, is made by the guard, not compliance with the Energy Reorgani-which caused the greatest concern by his supervisor or his employer, In a zation Act of 1974, concluded that 11-about this (i.e., * *

but not necessar-civilian context, the justification for censee guards, properly trained and ily limited to * * *) has been deleted the use of force must rest upon the equipped, could be as effective as Fed-because the capabilites and perform-riasonable belief of the person using eral forces. In fact, the Federal Gov-ance requirements are comprehensive' it. The allowance of the use of deadly ernment employs private guards to enough to cover au safeguards contin-i force in self-defense or defense of protect iederally owned strategic spe-gencies. In addition. a section has been l.

cth:rs, i.e., when there is a reasonable cial nuclear mat (rial. DOE, which uses added to the statement of consider.

I belief it is neces ary to prevent death both public and private sector guards, ations which states what guidance win or grievious bodily injury, is clearly has stated in congress'.onal testimony be used by NRC and issued to licens-within the mainstream of American (Committee on Government Affairs, ees to assure that the development,11-br March 23,1978) that these guards are censing review, and inspection of secu-law.

FEDERAL REGISTER, VOL 43, NO,154-.WEDNE5 DAY, AUGUST 9,1978

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2 35325.

PROPOSED RULES -

-. rity plans and facuttles are not open : dictions. This would indicate that it is - ing to permit exemptions for specific

('..a!!!!) ~gnded..

not an insoluble problem. -

conditions or deletion of requi3ements.

' ~

Finally, this rule does not require li- '

It is not intended that the proposed that would not be appropriate for cer-censees to use '* private. SWAT teams" amendments would override State and tain conditions. -.

to suppress crime in general. Licensees locallaws. It is the belief of the Com-The objective of the performanr* cai.

gre not expected to assume normal re-mission that adequate flexibility in ar-pability requirements is to provide ~

sponsibilities of Governrpent defense mament, with respect to State and flexibility to the lir*nama in danfreina,

cr law enforcement agencies. Rather. Federal laws, already exists and that his system to provide the danignatad Ifeensees are required In accordance no further legislation is necessary at capabinties. The capabilities are with NRC regulations and their licens-this time absent a conclusive showing design goals for the IIcensee to fit to ing agreement, only to prevent the that automatic weapons are essential his individual site or transport condi-l theft of strategic special nuclear inste. in the total physical protection tions. The capahuities are the stated.

rial and protect ags. inst the radiologi. system. Where a licensee can show goals or requirementa. Whether a cal sabotage of a licensed facility. conclusively that there is coniUct with given system actually attains a specific There are no NRC requirements relat. State and local laws alternative meas-goal in practice will depend on the ures would be considered.

conditions pertaining at the time. The ing to:(1) Protection against ordinary

- theft of nonnuclear materials or other (5) Comments indiccted confusion system should nevertheless. be de-criminal acts; (2) apprehension ~ and regarding the status af research recc-signed to attain the specified goals or fors under the proposed rule. Com-capabilities under the conditions that arrest of criminals; or (3) defeating an I.

- menters generally felt that research exist at a given site or under a given adversary force.

reactors should not be required to transport situation Guidance in the (4) Conflict icith State and loccI pun meet the stringent requirements of design of safeguards systems is being.

Intes and use of automatic toecpons. the proposed rule. Comments indicat-prepand and wul be pMded to the 11-

~

Comments.tised the question of the ed that those organizations operating censees. This guidance identifies var-regulation requiring armament for research reactors, such as universities, ious subsystems and components that guards and transport escorts in viola-could not afford the added costs of the can be used to attain the specified ca-tion of State and local laws. In partic. upgraded protection. It was also noted pabilities. The licensee must select the ular the question was raised of trans-that imposition of these requirements appropriate combinations.for his -

port guards carrying weapons in dif. on research reactors would be in viola-needs. The first paragraphs of ~ the ferent jurisdictions. Also the specific tion of the Atomic Energy Act of 1954, system specification (( 73.26 and 73.46 question of automatic weapons was as amended wherein the Commi"fon states that the Commluion may au-4 raised.

should " * *

impose only such mini-thorize other measures if in its opinion It is true that both Federal :and mum amount of regulation * *

and the overan level of performance meets State law have limiting effects on the will permit the conduct of widespread the general performance requirements possession and use of firearms by pri-diverse research and develop-and the performance capability re-rate guards. In the main, these laws. and ment."

quirements.

make " machine guns" unavailable (a The intent and context of the pro-It is the intent of these capability re-yE' "machme gun" is any weapon that quirements and general performance fires more than one. bullet

with a posed regulation was to include only those research reactors having more requirements to allow maximum flexi-

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single function of the trigger), pre-than formula quantities of strategic bility to the licensee in designing his cluding the use of automatic weapons special nuclear material that was not system. No exemptions to the specific-by private persons.

self protecting by being irradiated at requirements of $ 73 26 or 5 73.46~are j

Department of Energy couriers and the level specified in ! 73.6(b), Le.,100 needed so long as the differences an guards (formerly AEC or ERDA cour1* rems per hour at 3 feet. A maior part shown to meet the general perform-ers and guards) are authorized by Fed-of the confusion apparently resulted ance and capability requirements.

-eral law to carry firearms (section from misunderstanding as to the treat-(7) Costs. Commenters stated that 161k. of the Atomic Energy Act of ment of the present sections in part the costa given in the statement of 1954, as amended). They may also' 73. These sections would be removed considerations were too low but pro-have automatic weapons (42 U.S.C.

when the new sections became effec-vided'no supporting data for. higher 925(aX1)). DOE may also extend this 'tive. Coverage for research reactors costs. The comment also was made authority to employees of its contrac* having less than the formula quantity that some of the requirements could tors engaged in the protection of prop-of strategic special nuclear material not be implemented at any cost but no erty owned by the United States and would. continue to be covered under details were given.

located at facilitics owned by or con

i73.40. The Commise!on is considering The Commiulon has studied the tracted to the United States (within a separate section in part 73 to cover costs of the proposed amendments fur-the context of acth-ities authorized by research reactor protection just as ther and has had a value/ impact anal-the Atomic Energy Act).

there is a separate section, f 73.55, to ysis prepared on the basis of the refer-The Commission, however, believes cover the protection of power reactors. ence system in the regulation. A copy that the increment in firepower added Until such an amendment is inade, re-of this analysis has been placed'in the

. by automatic weapons would not be search reactors having more than for-Commlufon's Public Document Room sufficiently significant in the overall mula quantities would be covered by at 1717 H Street NW., Washington.

physical protection system to warrant the proposed regulation when it is D.C.

_the use of such weapons by private made effective.

If the Comminion adopts the pro-( ~

_ guards.

'(6) Perforrr.cnce-oriented require-posed amendments to 10 CFR Part 73, l

The Ccmmission recognizes that car-ments flezibility. Commenters suggest-each affected licensee would be given s l~

riers would need to consider the var-ed that flexibility be allowed in the period of 120 days following the effec-

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- fous local and State gun laws for the regulation to vary the number of es-tive date of the amendments to submit jurisdictions through which ther' corts or escort vehicles, to use an unar-a revised fixed site safeguards physica!

I would be transporting strategic special mored vehicle that would be less con-protection plan and, if appropriate, s nuclear material. This is not a new sit-spicuous, to permit changes of routing revised safeguards transportation pro-untion. There are many companies en route, and to adspt requirements to tection plan describing how the licens-

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transporting valuable shipments with site specific conditions. Other sugges-ee will comply with the requirement 4 armed escorts through various juris-tions were made for changes in word-of 3 73.20 (aX1) and (aX2). A licensee FEDERAt REGISTER, VOt. 43, NO.154-WEDNESDAY, AUGUST 9, M78 l

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353bt6 PROPISED RULES would be given up to'300 days after ' $ 73.1 Purpose and scope.e tration appropriate to the response. j time of the local law enforcement au, h..

the effective date of the emendments (a) Purpose This part prescribes re.

C.r 90 days after the submitted plan is quirements for the establishment and thority that would respond to a safe-a approved, whichever is later, to imple. maintenance of a physical protection guards contingency at the site.

ment the approved plan except fer system which win have capabilities for, certain activities involving new con * 'the potection of special nuclear mate-(p). " Radiological sabotage,, means struction, significant physical modif!* rial at fixed sites and in transit and of any deliberate act directed against a cation of existing structures, or major. plants in which special nuclear materi-plant or transport in which an activity equipment installation zor which 540 al is used, to protect against acts of ra-licensed pursuant to the regulations in days or 180 days after the plan is ap-diological sabotage and prevention of this chapter is condu: ted, or against a proved would be allowed.

theft of special nuclear material.

In. addition, a licensee would be component of such a plant or trans-given up to 210 days after the effective port which could directly or indirectly date of these amendments to submit a endanger the public health and safety r; vised fixed site safeguards physical

2. Sections 73.2(c), (f), (h), (k), (n),

by exposure to radiation.

prttection plan and, if appropriate, a and (p) of 10 CFR Part 73 are revised

3. Section 73.2 of 10 CFR Part 73 is to read as foHows:

amended to add paragraphs (x) thru rzylsed safeguards transportation pro.

tection plan describing how the licens-g.3.2 ~ Definitions.

(ID-ee will comply with the requirements of ! 72.20(a)(3).

As used in this part:

g;3.2 Definitions.

A licensee would be given up to 390 As used in this part:

d2ys after the effective date of these amendments or 90 days after this (c) " Guard" means a uniformed indi-latter plan is approved, whichever is vidual armed with a firearm whose pri-(x) " Strategic special nuclear materi-liter, to implement the approved plan mary duty is the protection of special al" means uranium-235 (contained in except for activities specifically identl* nuclear material against theft, the uranium enriched to 20 percent or fitd by the licensee which involve new protection of a plant against radiologi-more in the U.235 isotope), uranium-construction, significant modification cal sabotage, or both.

233, or plutonium.

of existing structures or major equip-(y) " Formula quantity" means stra-ment mstallation for which 540 days tegic special nuclear material in any after the effective date of these combination in a quantity of 5,000 amendments or 180 days after the (f)" Physical Barrier" means grams or more computed by the for-plants) is approved, whichever is later, (1) Fences constructed of No.11 mula, grams = (grams contained U.235 would be allowed.

American wire gage, or heavier wire + 2.5 (grams U-233 + grams plutoni-The amendments would become ef. fabric, topped by three strands or um).

fective 30 days after publication in the more of barbed wire or similar materi.

(z) " Transport *' means any land, sea, Q.-

a' rled ou ard b tween f0*

or air conveyance or modules for-these FrDrnAI. RrotsTrn.

h The system specifications included conveyances such as rail cars or stan-overall height of not less than 8 feet. dardized cargo containers.

in f 73.26 for transportation physical Including the barbed topping (aa) " Incendiary device" means any protection systems are based on com.

ments received on the transportation (2) Building walls, ceilings and floors self-contained device intended to constructed of stone, brick, cinder protection requirements proposed for create an intense fire that can damage comment on November 13, 1974 (39 block concrete, steel or comparable normally flarne resistant or retardant FR 40036) and subsequent censider-materials (openings in which are ce.

materials.

cured by grates, doors, or covers of ations..

Ob) ** Controlled access area" means The commission has detennined construction and fastening of suffi: any tem;iorarily or permanently estab-cient strength such that the integrit) under Council of Environmenta1 Qual-lished clearly demarcated area, access CI ity guidelines and the criteria in 10 to which is controlled and which af-ope g) al of sirr ce tr c-CFR Part 51 that an environmental fords isolation of the material, equip-tfon, not part of a building, provided impact statement for the proposed ment or persons within it, with a barbed topping described in amendments to 10 CFR Part 73 is not paragraph (f)(1) of this section of a (cc) " Movement control center" required. Concurrently with publica-height of not less than 8 feet; or means an operations center which is tion of the notice of proposed rule-(3) Any other physical obstruction remote from transport acth-ity and making of July 5,1977 (42 FR 34310) constructed in a manner and of mate-which maintains periodic position in-the Commission made atallable in its rials suitable for the purpose for formation on the movement of strate-Public Documents Room at 1717 H which the obstruction is intended.

gic special nuclear material, receives Street NW., Washington, D.C. an, En-reports cf attempted attacks or thefts, vironmental Impact Appraisal of provides a means for reporting these Amendments To 10 CFR Part 73." to and other problems to appropriate support a Negative Declaration. This (h) " Vital area" means ar.y area agencies and can request and coordi-document is appropriate for the re-which contains vital equipment.

nate appropriate aid..

vised proposed amendments as well.

(dd) " Force" means potentially vio-1ent methods used to attempt to gain Pursuant to the Atomic Energy Act unauthorized access or introduce uri-of 1954, as amended, the Energy Reor-(k) " Isolation zone" means any area

authorized materials into or remove ganization Act of 1974, as amended, clear of all objects which could con stragetic special nuclear material from and section 553 of title 5 of the United ceal'or shield an individual, adjacent protected areas, vital areas, material States Code, notice is hereby given to a physical barrier.

that adoption of the following amend-access areas, controlled access areas, ments to Title 10, Chapter I, Code of or transports.

Federal Regulations Part 73 is con-(ee) " Stealth" means covert methet.

templated.

(n) " Vault" means a windowless en-used to attempt to gain unauthorized h"x

1. Section 73.1(a) of 10 CFR Part 73 closure constructed with walls, floor, access or introduce or remove unau-is revised to read as follows:

roof and door (s) that will delay pene-thorized materials where the fact of FEDERAL REGISTER, VOL 43, NO.154-WEDNESDAY, AUGUST 9,1978 l

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SECURITY AGEN CY STU3Y

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Report to the Congress on 'the Need for, lj',, T and the Feasibility of, i

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Establishing a Security Agency

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within the 4 c Office of Nuclear Material Safety and Safeguards i;

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ct of Nuclear Material safety and Safeguards f'a{.,

U.S. Nuclear Regulatory Commission Ti '!?'.,

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Rules Governing Use of Deadly Force f;.;

fitzis Armed guards are necessary to provent theft of SSNM and to prevent if malicious actions at nuclear facilities that could result in the F

releases of radioactive materials into the environment.

Guards may ~

be more willing to use whatever force is the minimum needed if they 1

have--and understand that they have--authcrity to use it.

[se There are no general Federal statutes governing the~use of. force; liabil-ity is governed by State law.

In general, the use of force is legally justifiable when such force is immediately necessary for the purpose of protecting oneself or other persons against the. use of force by another person.

Further, use of force may be justifiable ~when an individual believes that such force is immediately necessary to prevent or terminate an unlawful entry or carrying away of property though this is not the rule in all States.

The degree of force that may be used is that which is reasonably necessary, and no more.

The key words are " reasonably necessary." These gent al rules apply to Federal, State, and local law enforcement offi.cers, and private guards. The major difference between Federal, State, and local officers, on the one hand, and private guards on the~other, lies in the authority to arrest, and consequently in the power to use force to effect an arrest:

If a private guard user force to make an arrest, and no felony has in fact been committed, that use of force is not permissible; in contrast, the peace officer may use force if he reasonably believed a felony to have been committed.

As a practical matter, however, the use of deadly force is permissible, by peace officers or private guards, in virtually.every case in which an attempt to steal safeguarded materials or to sabotage facilities involves actual or threatened violence against security personnel.

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Guards must determine how much force may be used durin5 the heat of an emotionally charged situation. As is true of police and other individuals

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who find themselves in such positions, guards may be troubled by uncer-tainty, fear for their personal safety, and concern that use of unreason--

able force may lead to civil and criminal liability.

As a practical matter, however, the existing law probably allows use of deadly force in most situations where an attempt is underway to steal safeguarded materials or to sabotage facilities.

For example,.if an attempted theft or sabotage involved threats of violence directed against sicurity per-m sonnel, guards may be justified in using deadly force on the ground that their own lives were threatened.

On the other hand, authority to use deadly force.in situations where apparently unarmed persons were suspected simply of having unauthorized possession of plutonium would be unlikely.

as gi=

With regard to protection of nuclear weapons under its control, the s

Department of Defense has issued a forthright directive:

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"All possible actions shall be:taken, including the use of deadly

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force, to preclude unauthorized access to, or seizure of, any nuclear weapons storage area t

j aboard, or nuclear weapons."y ransporting vehicle with weapons 1

Whether a similar rule should be applied to security personnel who pro-

j tect NRC-licensed facilities and materials is a difficult question that lies bEyond the scope of this study.

is that the authority governing use of deadly force should be clarifiedThe c and that such clarification can be as readily accomplished. for private 2

-i as for Federal guards.

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Possession and Transportation of Certain Types of Weapons l

At the typical reactor or fuel cycle facility, guards are armed with.38

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caliber revolvers.

In addition, -they ha se access to rhotguns.

Private

-l guards escorting SSNM shipments are armed with handguns, shotguns, and I

in some cases semi-automatic carbines.

l Department of Defense regulations require that guard forces assigned to (Ii protect nuclear weapons be equipped with M-14 rifle or M-16 automatic rifle or their equivalent.8

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Possession of automatic weapons, such as the M-16 is subject to parti-cularly stringent restrictions.

Although NRC has broad power to issue regulations concerning the possession and use of SSNM necessary to i1 protect health and minimize danger to life and property, and to guard F

against loss or diversion of SSNM,9 NRC could not require licensees to arm and instruct their security forces in a manner that might contravent y

. If greater firepower than that presently authorized i

State or local law.

L for orivate guards is recommended, special legislation would be needed 5

to permit them to bear such arms.

That legislation could be in the form p,

of an amendment to the Atomic Energy Act or some other act, or through a i

Federal gun permit.

Authority for Federal guards to bear necessary arms 9

would presumably be delineated in the legislation creating a guard force 6

operated by NRC or another Federal agency.

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700D Directive 5210.41, op. cit., p. 3.

ML19321A620

Text

Dear Mr. Walske:

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