ML19341A174
| ML19341A174 | |
| Person / Time | |
|---|---|
| Issue date: | 09/06/1978 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8101220278 | |
| Download: ML19341A174 (50) | |
Text
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rfA.1 19enos Rt J4! TO SECRETARIAT RECO N U CLE AR REG U L ATO RY COMMI'SSIO N IN THE MATTER OF:
DISCUSSION OF SECY-78-350 - ROLE OF THE USE OF DEADLY FORCE IN SAFEGUARDING STRATEGIC SNM [
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2 THIS DOCUMENT CONTAINS
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l Place - Washington, D. C.
Date - Wednesday, 6 September 1978 Pages 1 - 47 rw non.:
(202)047 3700
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f DISCt. AIMER -
d States meeting of the Unita in the W1978 The t of aSeptember 6, Th'is transcriptntain inaccu unofficial transcripissionsheld on Street,it.
W., wasning and observation.
edited, and it may col purposes.
This is an clear R:gulatory Cocmat 1717 Hattendance offices open to publicreviewed, correcte,
general informa'tf ena l or informalof cpinion in d or
- mmission's las not been is intended solely fornot part of the fema eeting was ExpressionsdeterminationsComission in or is The transcript 10 CFR 9.103, itmatters discussed. arg. ment l ct final may be filed with theany statement or not necessarily ref e by of the As providedrccord of decision other paperaddressed tomay authorize.
do this transcripttio pleading or result of or ept as the Comission he any proceeding as tcontained herein, exc baliefs.
e P00R ORIGINAL
Or STATES UNITED COMMISSION t
REGULATORY NUCLEAR
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Public Session OF l
USE THE OF OLE I
OF DISCUSSION SAFEGUARDING IN FORCE ce Room; DEADLY Conferen l
Commissioner's Room 1130 Street, N.W.
H C.
17 17 Washington, D. September 197 I
9 esday, 6 Wedn ed, 10l ven con was tter II l-ve-entitled ma abo 12,
the l
in Meeting 10.40 a.m.
l 13 otic, at e
n to 14 uant purs HENDRIE, Chairman er ission 15 PRESENT-GILINSKY, Commy, Commissione r
JOSEPH er KENNED ission l
16 VICTOR BRADFORD, CcmmHEARNE, Commis l
ioner RICHARD 17 i PETER 2
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j' JOHN Wm. J. Dircks j
A 18 l ett S. Chilk l
rn j
R. Bu r
B. Snyde er 19l-R. Fonn K. Pedersen l
C. Smith 20 [
J. Kelley e
P. Cran H. Shapar 21
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HENDRIE:
it that force in IRMAN find CHA de dly had, I of a
just of the material.
hand, Bill.
use arcmony we have role of the uclear discussion special n ady at re co ategic safeguarders a
cafcquarding str vethe u ha l
I see yo ahead.
into this.
Please go Yes, sir.
to lead rig is SECY ht 78-350, MR. DIRCKS:
want yo subject u
Cliff, I guess an, the Safeguarding
.l Mr. Chiirm Force in l
adly MR. SMITH:
of De 9
of the Use NRC not 10.
the role s
Cycle Fa ilitie.
whether forc l
or c
e is which is deadly ar Fuel basically of II use Nucle for the 12 SSNM And the issue a thority is Cycle Fa ilit e.
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u r Fuel discussion, legislative Nucle ur a
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should se k SSNM at and o which e
the protectio rted, this paperin May of '77 of in Id n
federal-This got sta commendationropriate f
1 15 in 16 l result of a GAOsho ld seek app re u
gether e
ommended that w safeguards, to this !
a I7 as T
they rec uthority.
office in hard on 1
a 18 ;
ive state legislat ett and worked pretty his Mr. Burn er ha I9 ve Mr. Fonn nd I know a
- ett, 20 and Burn I
Mr. Shapar ver to Bob make.
21l with it o to d the I will turn a presentation sso iate behin 22ll and c
also has 1, please.
a an l
er I have 23 l Mr. FonnMR. BURNETT:
vugraph
'y have o ld u
d if Ic 24 25 ! magic board,an v.wonm. sec.
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I (Slide.)
2
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As Cliff had stated earlier, this was premised on 3
a GAO recommendation, and we have quoted it just i
- $ point:
as a starting 5k
" Seek as appropriate, federal and/or st t 6
ae legislative authority to allow guards at I
the NRC-licensed facilities to use firearms to prev 8
ent l
thefts of SNM."
9l COMMISSIONER AHEARNE: Bob, did this GAO recommenda-I0 tion address itself solely to SNM faciliti es?
It did not call into reactors?
12 1
MR. BURNETT:
I3 Yes, sir, that is correct, sir.
Could I have Vugraph 2, please?
14 (Slide.)
15 In the SECY paper that was sent down to th 16 e
Commission, it was the feeling of the St ff i
17 a
, unanimous l
feeling of the Staff, that our I
present requirements do possess I8 a proper use of deadly force. And that is in th U
i e form o#
rsgulations that are now in place that state th So two things:
e following j
U That responding guards are to interpose th 92 emselves and to intercept any person exiting with SNM
{
I3 In addition tothat, they are to prevent people coming in.
-i In essence, that is what the rule that i i
I s on the
.'i l,
3 mm I
(Slide.)
2 As Cliff had stated earlier, this was premised on 3
a GAO recommendation, and we have quoted it just as a starting point:
5
" Seek as appropriate, federal and/or state 6
legislative authority to allow guards at. the NRC-7 licensed facilities to use firearms to prevent 8
thefts of SNM."
9 COMMISSIONER AHEARNE:
Bob, did this GAO recommenda-10 tion address itself solely to SNM facilities?
'I It did not call into reactors?
I2 MR. BURNETT: Yes, sir, that is correct, sir.
}3 Could I have vugraph 2, please?
s I#
(Slide.)
15 In the SECY paper that was sent down to the
}6 Commission, it was the feeling of the Staff, unanimous i
17 feeling of the Staff, that our present requirements do possess l l
18 a proper use of deadly force. And that is in the form of U
regulations that are now in place that state the following i
i 20 two things:
21 That responding guards are to interpose themselves I
and to intercept any person exiting with SNM.
l 22 23 In addition tothat, they are-to prevent people 24
, Aa Federo Reporters, Inc.
25 In essence, that is what the rule that is on the
9 l
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mm i
street says.
2 As I said earlier, it was the feeling of the Staff i !
l 3
that this was ample.
This does allow our present guard force j
i 4
to fight force with force.
Should some violence be directed 5
against the system, so to speak, ele system can protect itself.
6 COMMISSIONER KENNEDY:
Bob, when we say our guard 7
force, they aren't our guards, they are private guards working 8
for licensees?
9 MR. BURNETT: That is correct.
10 COMMISSIONER KENNEDY:
Sooner or later the thing 11 that keeps troubling me, and I would like to get discussed, 12 the legal relationship between that guard,the licensee f6: whom 13 he works, and the state und ar whose law he is functioning.
14 MR. BURNETT:
Yes, sir.
~
15 If I could have Vugraph 3.
16 (Slide) 17 With this vugraph we have attempted to answer the 18 question that came back fromthe Commission, what about the i'
19 fleeing suspect scenario.
20 In this scenario it is postulated that a person can 21 get ahold of SNM and get into a position that he cannot be 22 intercepted by our guard force.
N-23 CHAIRMAN HENDRIE:
If he gets out in front,why it 24 is going to be tough for the guard to interpose himself.
Am.FWwo Roo,ters, lnc.
25 There is a premium on fleet guards, perhaps.
5 j
i l
mm 1
(Laughter.)
l i
2 or, fleet thieves.
3 (Laughter.)
l 1
4 MR.
BURNETT:
This scenario, however, preassumes 5
certain actions. That being that other systems within the 6
safeguard system have failed.
7 When he has an opportunity to get ahold of SNM, 8
the two-man rule is ineffective, so that presupposes that the ' wo-man rule has been bypassed in some way or another.
9 t
10 To get the SNM out of the vital area he had to do it in such Il a manner that he was not detected.
12 So that again preassumes that that wasn't functional.
13 Also, it preassumes that somewhere between that line that I have 14 just mentioned, the exiting of the vital area, and the 15 perimeter, the guard force then finds out about his actions.
16 So those are the assumptions present in that 17 scenario.
18 The Staff looked at that very scenario.
It was l
19 the Staff's feeling that in order for all of that to happen, 20 and then for him not to nave used any violence up to that j
21 point,and then when the guard finds out about it, that then 22 the fleeing person doesn't resort to violence, because if he 23 does then the guard force can protect themselves accordingly --
24 so again there is another assumption:
Ace Federd Reporters, Inc.
25 That when detected by the Jt.ard force, the fleeing
6 l mm I
thief still takes a nonviolent course of action.
2 COMMISSIONER KENNEDY:
He may not be a thief.
He 3
is a suspect.
4 MR. BURNETT:
Correct.
I am getting to that point.
5 Okay. Which raises the point, if all of this happens, what are 6
the chances of that happening?
7 Now we get into, how do we know, or,how does the 8
guard know, or to what extent does his knowledge allow him to 9
know that the thief is in possession of SNM?
And, in what 10 quantity?
Il Then we debated, would you look at trigger quantiti s 12 greater or less than.
13 So that was the scenario that we had already looked 14 at prior tothis Commission paper.
15 But then it came back to us to be addressed directly 16 in this presentation.
17 It was the feeling if the Staff that we did net feel l
18 that that was a totally credible scenario that exposed the public-l 19 to an undue risk greater than what we presently have.
You don't 20 see all of those things happening at once.
2I CHAIRMAN HENDRIE: But what is the answer to the 22 question?
You know, there is a long discussion of probabilities 23 and we can discuss that in a minute.
i 24 What is the answer to the question.
He is going Ac..Federd Rooorters, Inc.
25 over the fence,he has get a bag on his back, he has been in the i
7 mm I
plant, can you shoot him or can't you?
2 MR. SMITH:
You can't.
3 MR. BURNETT:
No, sir, you cannot. You will rely 4
on your contingency plan which is using the local police force 5
as support to apprehend that suspect.
6 CHAIRMAN HENDRIE:
Lot me suggest another piece of 7
scenario to yGa.
8 Three guys have just shot their way into the plant 9
and shot their way out of the plant, and this guy is going over 10 the fence.
II You still can't shoot him because you haven't inter-12 posed yourself and are not then protecting your own life to use 13 deadly force against him, right?
I4 MR. SMITH:
I'm not so sure about that.
15 CHAIRMAN HENDRIE:
I'll put that to the legal 16 department.
17 MR. FONNER:
I was going to wait and try to answer 18 some of these questions after Bob finishes.
19 MR.SHAPAR:
Why don't you answer it now.
20 MR. FONNER: This question.was first raised 21 CHAIRMAN HENDRUE: Answer my question.
We will have 22 the general dissertation in a minute.
23 MR. FONNER:
All right.
24 Can I say something about your question?
! Ace Federd Reporters, tric.
l 25 CHAIRMAN HENDRIE:
Sure.
8 mm COMMISSIONER KENNEDY:
He doesn't.like it.
2 (Laughter.)
3 You need to rephrase the question.
4 (Laughter.)
5 MR. FONNER: Your question has people shooting their 6
way into the plant, and the guard response rule has a require-7 ment that in such a circumstance, the guards are required to 8
make a response..In that instance, the guards would be 9
privileged to use deadly force, and I think you would have a 10 firefight at tht: point in time.
11 I really do not see the second part of your question 12 as a credible part of the question.
(
C'HAIRMAN HENDRIE:
Yes, yes. They now shoot their 14 way back out again.
They have got the bag under their arm, 15 they are no longer shooting over their shoulders and they 16 are going over the fence.
17 As a guard, can I take a potshot at him as he 18 goes over the fence without being liable under state law?
19 I'11 bet a c'ookie I can't.
I l
20 COMMISSIONER KENNEDY: The question is, I guess --
21 MR. FONNER: It depends upon'-- let me ask you this:
22 l
What state are you talking about?
l 23 (Laughter.)
24 CHAIRMAN HENDRIE: One of the 50 least favorable to 25 i
l stopping the crook going over the fence.
l i
l
'I
i 1
COMMISSIONER KENNEDY:
2 MR.FONNER:
New York you can shoot 1.1m because 3
you can use deadly force in the State of New York to terminate 4
a burglary.
In this case you would have had a burglary.
5 COMMISSIONER KENNEDY:
Are you sure that you had the 6
burglary?
7 MR. FONNER:
How do I know that?
I know that, 8
Mr. Chairman, because I read the New York law in this area.
9 COMMISSIONER KENNEDY:
How do you know that the 10 guy is a burglar?
11 MR. FONNER:
Well, you assume -- the question, I 12 think, presumed the person shooting their way in --
13 COMMISSIONER GILINSKY:
Are you trying to win a bet 14 or something?
15 CHAIRMAN HENDRIE:
Yes, He has got a girlfriend in 16 the plant.
17 (Laughter.)
18 MR. FONNER:
I think a person shooting their way in 19 and shooting their way out, there is enough evidence there for 20 any reasonable man to assume that a crime has been committed, 21 a crime of burglary.
22 If, in fact, he has penetrated a material access 1
23 area, penetrated a building and exiting with contraband --
l 24 COMMISSIONER KENNEDY: Would the same thing apply E4s-Fewd Agomn, Inc.
25 at a reactor?
10 o
l 1
MR. FONNER: Yes, sir.
I 2
COMMISSIONER KENNEDY:
It would?
3 MR. FONNER:
If he penetrated any building on the 4
reactor site, under New York law.
5 COMMISSIONER KENNEDY:
The probability is he is 6
not committing burlgary there.
7 MR. FONNER:
Burglary is defined in technical terms 8
in various state statutes.
9 COMMISSIONER KENNEDY:
Try New Y ork.
10 MR. FONNER:
In New York burglary is defined as 11 the entry of any building,any structure with intent to commit 12 an offense.
13 MR. SHAPAR: At nighti 14 MR.FONNER.: No, this is what they call Class D 15 Burglary.
It is a penalty nnder New York law. And you can 16 terminate a felony under New York law with the use of deadly 17 force.
18 Self defense does not come into it.
19 CHAIRMAN HENDRIE : How about other states?
20 MR. FONNER:
Now let me point out. We have a problem.
21 We are getting into reactors, and getting away from the 22 situation.
2: 1 CHAIRMAN HENDRIE: In some ways I'm puzzled,because 24 I don't recall New York police, either city or upstate or out 4 4=wo meomn. ix.
25 on the Island where I live, getting very cordial treatment for f
t 11 1
taking a shot at somebody climbing out of a window of a house.
2 COMMISSIONER KENNEDY: The first thing that happens 3
to him after he --
4 CHAIRMAN HENDRIE:
He gets suspended.
5 COMMISSIONER KENNEDY:
-- after he pulls his triggerr 6
is that some guy standing on the cer;. :r hands him a suspension.
7 (Laughter.)
8 CHAIRMAN HENDRIE:
But, the discussion gets afield.
9 I think it is clear that our rules say the guard must 10 interpose himself to attempt to stop a diversion or a theft, 11 and that he is allowed to use as much force as the circumstance 12 requires to maintain his position and protect himself.
13 But it does seem to me clear that when you get into 14 these situations where the suspect is disappearing out of sight
-c 15 MR. BURNETT:
Is that a different act, though, sir, 16 than him coming aboard?
17 He is still displaying a deadly weapon.
Is it fair 18 to separate the act?
19 MR. SMITH:
It seems to me we are getting two 20 different scenarios.
21 One scenario the Chairman postulated, is that a bunch 1
22 of people were shooting their way in and shooting their way l
23 out.
Clearly you can shoot them.
l 24 CHAIRMAN HENDRIE: Of course.
l Am4Wwd Reo,mts, lm.
25 MR. SMITH:
The other scenario, with the individual i
\\
12 I
going over the fence, he doesn't have any visible weapon, you 2
don't know whether or not he has any SNM, you can't get yoursell 3
between that individual and the woods, you cannot shoot him.
4
. CHAIRMAN HENDRIE: And what I'm doing is adding to 5
that comment, not only can't you shoot him in that circumstance!
6 but I bet a cookie under most state laws, you couldn't shoot 7
him even if he had shot his way into the plant and back out.
8 MR.
FONNER:
And performed an injury to another l
9 person?
10 Currently -- things changelin this area of the law 11 and a couple of years ago I would have felt more like you do 12 than I do today.
The case of Mattis against,Schnarr, which 13 raises a precise issue before the Supreme Court was dismissed 14 as moot.
And it does not serve as legal precedent.
15 Consequently, we have a legal situation in the country 16 today which, in the majority of the states a person may use 17 deadly force.
18 COMMISSIGNER KENNEDY: Could you explain what the 19 case --
20 MR. FONNER:
The case involved a policeman shooting 21 a fleeing felony suspect, where the felony had not been 22 committed with force and violence.
And that issue was raised, 23 whether the police had that authority.
That was in the State 24 of Missouri.
Ace-Focieral Reporters, Inc, 25 And the Court of Appeals in St. Louis said, the I
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13 l
mm police violated the Consti tution in shooting somebody who was 2
escaping from a felony situation where a felony was a non-3 violent one.
4 As I say, the case never was decided in the 5
Supreme Court.
So in the majority of states today in this 6
country, you may --
7 COMMISSIONER KENNEDY:
So in fact you don't know 8
what they will do.
The Court of Appeals ruling stands.
9 MR. FONNER: No, sir.
There is no particular value 10 in this particular case because of the procedural aspects of 11 the case.
12 MR. SHAPAR:
I don't want to leave the impression 13 in this discussion there are any hard and fast answers to the 14 scenarios that have been posed, or the questions that have been 15 asked.
16 I think the most important point to remember,rit~would 17 depend very much on the factual circumstances. It may very 18 Well vary from state to state.
There are constitutional 19 issues involved. And all we can give you is a feeling and 20 a flavor for these various scenarios, and we should at accept 21 these answers as hard and fast.
22 l
COMMISSIONER KENNEDY:
If there are constitutional i
l I
23 issues involved, and it seems clear that there are, and the j
24 area has been fraught with issues, constitutional issues for all
- ,,,,,,3 25 I
i I
14 mm these years, isn't that a case in which one ought to ask the j
Congrecs to consider and include the direction they believe 2
3 we ought to go?
MR. SHAPAR:
Well, if there are constitutional 4
issues involved,the Congress would, of course, want to look 5
at the constitutional limitations in any legislation they might 6
want to pass.
7 Number two, of course, the political --
8 COMMISSIONER KENNEDY: Right.
And define for us 9
at least what they think.
10 MR. SHAPAR: I might also point out that I couldn't jj think of another example of more controversial legislative 12 issue than this one.
13 MR. FONNER: May I say the response rule which we j4 have in the regulations -- and the same rule applies to 15 reactors as to fuel cycle facilities -- ite,was very carefully 16 prepared to stay within what was -- what investigations showed j7 to be permissible legal limits, so that it would be applicable 18 39 across the country.
We could sit down and write rules applicable state 20 by state and have variations from one state to another, but 21 I
we don't think that that is desirable for a regulation.
t 22 l l And it was also framed b stay within constitutional 23 24 limitations so we would not be posed with that problem.
Am-Federd Reporters, Inc.
)
COMMISSIONER KENNEDY:
Yes.
25
15 mm CHAIRMAN HENDRIE: I agree with you.
j But I hink it is fair to reccgnize that these 2
limitations -- I am encouraged about the remark of the sort of 3
trend in the case law, that it may be a little bit more back 4
towards allowances --
5 COMMISSIONER AHEARNE:
Could we, just to structure 6
the discussion a little bit more, could we perhaps let them 7
finish their --
3 CHAIR W HENDRIE: I think it is eminently desirable 9
if.we have run out this particular thread.
10 MR. BURNETT:
I would like to say that the further jj vugraphs would just entice more questions.
12 COMMISSIONER GILINSKY: I have a question:
13 What is the situation with DOE facilities?
34 MR. BURNETT:
I have that in slate 5.
15 (Laughter.)
16 MR. SMITH:
And that is part of our presentation, j7 DOE.
18 MR. BURNETT:
Okay.
39 Then the Staff looked at, if we had such authority, 2G how would we use it.
21 CHAIRMAN HENDRIE: For deadly force?
22 l.
sa suanzTr= res sir-22 24 If we were given such authority, what would be the
- Ace Feder) Reporters, Inc.
25 case in which the guard could employ that use?
16 o
1 okay.
Again turning to the judicial system, it 2
was felt that he would have to have some reasonable belief 3
that the perpetrater did, indeed,have SNM on him.
4 Now, how would he ascertain such info 2mation?
i 5
Through personal knowledge that it was there?
Through second-6 hand knowledge, somebody said,"Stop that man, he's got it"?
7 And then, what would happen if he didn't have it?
8 How would you establish that reasonable belief?
9 Again, it was the feelzng of the Staff that during 10 that period it would be very difficult to make a total airtight 11 case'that he knew or did not know, and then resolve -- reverted 12 back to using the weapon, then it was found that he did or did 13 not have the SNM.
It presented a c"se of ambiguity. We did not know 14 a
15 how the guard would be in possession of such information free 16 of all ambiguities.
17 If I could move to number 4, please?
18 (Slide.)
19 Then with our legal department, w started looking 20 at present authorities that exist'within the common law system, 21 and is assigned to other federal, state and local jurisdictions.,
e i
22 It was found out that no law-enforcement system in the{
23 United States presently have the type of authority that we 24 are debating here.
That their authority is to use force 4 4w.,a n oonm. inc.
25 when directed at them, to protec t. the life of people, or t
17 me themselves.
j S
that we are actually debating an authority above 2
that which exists in the United States, and possibly raised 3
f constitutional problems.
4 Now again that is a debatable issue, but that was 5
what was in front of us.
6 The second bullet was, if it was deerced that such an 7
authority should be pursued, trat made the Staff rethink then, 8
should that authority be placed into the hands of a private 9
guard system in light of'no federal authority presently having 10 such extensive realm?
ij W uld we take a private system which presently 12 perates under the authority of the state laws, and attempt 13 to give them this authority?
34 It was felt that again, if the decision favored 15 that position, pursuing that type of authority, then we should 16 reopen the issue of a federal guard force.
We thought that chat j7 was at least the next stepping stone.
jg j9 Number 5, please.
(Slide.)
20 Then we took on a review of the DOE system.
And I 21 want to be the first to tell you that a lot of ambiguities 22 exist in that system also.
l 23 l
COMMISSIONER KENNEDY: Could I ask a' question?
24 i
! Ace-Feder*J Reporters, Inc.
When we speak of the DOE system, are these private 25 l
i
18!
mm I
guards, contracted, or are they federal employees?
2 MR. BURNETT: They are both. They are under federal 3
contract, if they are private guards.--
4 COMMISSIONER KEJNEDY: Yes.
5 MR. BURNETT:
-- in that case.
And in all cases, 6
they are protecting government property.
7 MR. SHAPAR: They have special statutory authority 8
to carry firearms, do they not?
9 MR. BURNETT:
Yes, and the protection of government to, property. That is what makes them unique.
II Now, the instructions ths.t they give to their guard 12 force, I have it here.
There is one line item that appears --
13 and I use that word " appears" to give them the authority to 14 use deadly force in a fleeing person suspected of theft.
15 And here is the words they use:
16 "Whenever it reasonably appears necessary in 17 order to prevent the escape of one who has stolen.
18
-- and right there we are not sure how they ascertain that I9 piece of informauion.
.or destroyed classified information or special 20 21 nuclear material, or who has caused substantial i I 22 bodily harm to any person, they can employ deadly force."
i 23 COMMISSIONER GILINSKY: Somebody who has destroyed i
24 classified information?
Ace-Federet Reporters, Inc.
25 MR. BURNETT: Yes, sir, that is the words that they I
19 mm used.
(Laughter.)
2 At the end of this guidance --
3 CHAIRMAN HENDRIE: You will be a little more careful 4
about tearing things up.
5 (Laughter.)
6 MR. BURNETT:
-- they follow with what I would call 7
a Caveate -- eaC h Case Calls for an exercise of sound judgment by the guard on the application of general guidance above, 9
and circumstances which confront him at the time and at the 10 time f the decision.
11 In extensive discussions with DOE, they have 12 preferred to leave it with that guidance, but have recognized 13 the existence of certain legal arguments that they prefer to 9
sidestep waiting for a precedent.
And they have maintained 15 that position that until a precedent has been established, 16 that this is what they are going to go with.
That their world p
is slightly different than ours. They are on government 18 property and that they can pursue this line of guidance.
39 But in reality, looking at the two systems, there 20 is little difference, the Staff believes.
21 COMMISSIONER GILINSKY: But, in protecting nuclear 22 materials of the kind that we are concerned about here in the 23 private sector, almost all of it is, in fact, government 24 Am Federd Reporters, Inc.
25 pr perty.
I i.
i 20-mm MR. BURNETT: Yes, sir.
j l
COMMISSIONER GILINSKY: So wPp; would the rules not 2
be identical?
3 MR. BURNETT:
Because they prefer to draw the line 4
that they are operating on government property 5
CWM HENDRIE: R is a quesdon between the --
6 MR. BURNETT:
-- as opposed to private property, 7
CHAIRMAN HENDRIE: It is the real estate difference.
g MR. SHAPAR: Also, I wouldn't necessarily assume 9
because he has read to you the DOE setup, that it would 10 necessarily stand judicial scrutiny.
ij MR. BURNETT:
They are the first to admit that, but 12 since they have not been asked to answer the question, they 13 don't care to.
j4 COMMISSIONER AHEARNE:
You say in your blurb here 15 that they indicated satisfaction with the NRC's ruling?
16 MR. BURNETT: Yes, sir. They have writen us a letter j7 about.three months -- well, during the formation of our rule 18 that is on the street now, taking no opposition with it, and j9 think that it clarifies some problems that we had prior to that 20 point and that they general.V support it.
21 COMMISSIONER AHEARNE: Support it for us?
22 MR. BURNETT: Support it for us.
g And they can see how it would alleviate some'of 24
, Ace-Federj Reporters, Inc.
25 our problems.
l G
i
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mm 1
CHAIRMAN HENDRIE: In looking a t-the DOE situation, 2
do you discern any difference in either the formal instructions 3
or the apparent instructions to guard forces; for instance
~
4 just manning perimeter posts at a government laboratory where 5
their primary function is just a sort of industrial property 4
6 protection function as against guards on duty at places where 7
there are weapons, quantities of strategic --
8 MR. BURNETT:
Yes, sir. The inference has changed 9
a a great deal when it is the weapon involved.
10 In fact, I did not read one of their other instruction-11 items that does refer directly to a nuclear weapon in its t
i 12 classified nature.
13 However, I don't believe the scenario of a man 14 hopping over a fence with a nuclear weapon on his back is 15 totally credible eithe r.
What I'm saying is that they do 16 emphasize it within the nuclear weapon world.
They don't care 17 to emphasize it in the other world, but they are using classified la information as their major crux.
19 COMMISSIONER GILINSKY: Is that why they have put 20 in the provision about destruction of classified information?
21 MR. BURNETT:
I can only assume from informal l
22 conversations, they do rely heavily on that, and that a 23 weapon is a classified device.
24 And when I get into just stealing the SNM, it is Ace 4ederd Reporters, Inc.
25 hard for them to give me a very germane argument. But they i
22 1
keep falling back into, they don't know what he!s got, he could mm 2
have more, we just don't know.
3 CHAIRMAN HENDRIE: Now, if one looks at Defense 4
Department installations and guards there, are there difference.s?
I 5
COMMISSIONER AHEARNE: Well, there are some substan-6 tial differences, in that many of the nuclear facilities are 7
guarded by military personnel.
8 MR. BURNETT: Yes, but the law -- there is an apparent 9
difference.
10 CHAIRMAN HENDRIE: Federal employees, but, you know 11 the government rules with regard to the use of deadly force --
12 I'm talking now about within the United States territory.
13 MR. FONNER:
There are some legal differences that 14 are significant. Most substantive legal differences have 15 procedural ones.
16 Persons who are employees of the United States, and 17 if they commit an offense which may be a criminal offense 18 under state law,but which they are authorized by federal law I
19 to do that, to perform that act, engage in that conduct, and 20 if they are in the scope of their employment at the time they 21 do it, they are in legal theory, not subject to prosecution in 22 state courts under the Constitution.
The supremacy clause 23 erects a barrier between them and state court prosecution.
24 In the event, however, state does proceed with
! Ace-Fedoro Repo,ters. Inc.
25 prosecution, these same indiriduals may seek removal and have 1
23 mm their case removed to a federal court where it is dismissed.
j Two practical real legal considerations which would 2
serve to shelter the Department of Defense, the soldier, the 3
DOE-employed guard in a very real and very practical sense, 4
can shield him probably pretty completely from state prosecutiori 5
as long as they are acting within the scope of their assigned 6
duty.
7 MR. SHAPAR: If it is on land under federal jurisdic-g
- tion, there are counterpart federal criminal codes that would 9
apply analogous to the state code, would it not?
10 MR. FONNER: Under Assimilated. Crimes Act?
11 MR. SHAPAR:
Assimilation of Crimes Act.
12 MR. " FONNER: If there was a choice by the U.
S.
13 14 Attorney to prosecute, yes, it would be under the Assimilated Crimes Act.
15 MR.BURNETT: We are going to have a great deal of 16 discussion, I am sure, afterwards.
If I could just sum it up j7 with what the Staff believes at this point:
18 39 That the incremental benefit gained by having this authority, which still puts the guard in a position of 20 some knowledge that is going-to be difficult for him to 21 ascertain, is not necessary.
The safeguards system that 22 is in place and will be in place with the upgrades rules is 23 24 adequate to protect the public.
I Ace-Federd Reporters, Irtc.
25 COMMISSIONER KENNEDY: Are you suggesting by that --
t e
I 24
,are you implying there that so much of the rule as provides for mm j
the use of deadly force is not necessary?
2 MR. BURNETT: No.
3 What I am saying is that the rule, as it now pro-4 vides for the use of deadly force, in conjunction with the 5
ther safeguard systems that are implemented, are adequate with 6
no further legislation to be pursued, because the one scenario 7
which we have been discussing here is difficult, but it is 8
premised on the failure of multiple components of the existing 9
safeguard system.
10 And like any risk, such a scenario has to be looked 11 at in a comparative light.
12 And that completes the Staff presentation.
j3 COMMISSIONER GILINSKY: You mentioned that this was 9
the same rule that applied in reactors.
15 t
Why would this ever come up in a reactor?
16 MR. FONNER: Why would what ever come up?
)7 COMMISSIONER GILINSKY: The whole notion of shooting 18 somebody going over'the fence?
l j9 MR. FONNER: It wouldn't.
That's one of the reasons 20 why the situation in power reactors was deliberately taken out 21 of this paper.
22 When the paper came around once, it was ambiguous 23 on that point.
And when the ambiguity was pointed out, it was 24 Ace-Federal Reporters, Inc.
decided to clearly separate the two and ind.tcate that the two -
25 i
o 25 mm MR. CASE:
We required the same thing, to interpose j
i yourself between a guy -- correct me if I'm wrong -- whom you l
2 think is going to commit sabotage, and use force against the 3
force that he displays.
4 So I don't see the force as being different at all.
5 COMMISSIONER GILINSKY: Well it is if somebody is 6
running away.
7 MR. FONNER:
The scenario is not the same.
8 MR. CASE:
It may be different scenarios but the 9
issue is there, the same between the two kinds ofacts.
We have 10 the same question and s' tate law is not -- at least in a couple ij of states, as I understand it, it is not clear that under 12 state law a person has the r'ight to get out in front and inter-(
13 pose himself.
j4 Is that right?
15 MR. FONNER: No, sir.
16 May I address this issue?
j7 COMMISSIONER GILINSKY:
I wish you would.
18 MR. FONNER: Okay, thank you.
j9 As Mr. Case alluded, two licensees, Arkansas 20 Power & Light, and Niagara Mohawk, in their security pland which 21 were submitted for review under the Physical Security for 22 Protection for Reactors, made statements when talking about 23 i
24 guard force response, tat state law imposed a duty to retreat.
Am Fewd Reorwrs, tx.
l COMMISSIONER KENNEDY:
Duty to --
25
26 mm MR. FONNER: Duty to retreat.
It is interesting that of the three operating 2
utilities in New York State, only one chose to raise this 3
point. The other two --
l COMMISSIONER GILINSKY: What does retreat mean?
5 MR. SHAPAR: Don't interpose yourself.
MR. FONNER:
It doesn't mean don't interpose yourself.
MR. SHAPAR:
However way.
COMMISSIONER GILINSKY:
It means, don't fight today, try another day.
MR. FONNER:
I don't want to be pedantic, I don't want to be a law professor, but I feel it is necessary to go into just a few little basic propositions.
One, there is no duty to retreat anywhere in any state in face of a show of force.
Now, I am using that term very artfully, a show of force.
Deadly force is the next step in escalation.
l But, if a man just comes over the wall waving a 19 l
stick at you or doing something else,and he is showing l
20 l
. aggression, antagonism, there is no duty to retreat on anybody's part, whether it is on the street, in a public park, in the 22 l
protected area of a reactor, anywhere.
COMMISSIONER AHEARNE:
You mean, if he comes over g
Acs Federal Reporters. Inc.
-mJ'
r 27 mm l
\\
l MR. FONNER: No, sir.
2 The concept of duty to retreat only comes up in the 3
context of a show of deadly force. That is, he is indicating 4
that he is about to use force which is deadly in nature, which 5
can cause grievous bodily injury or death.
6 COMMISSIONER AHEARNE:
Then you retreat?
7 MR. FONNER: Then the rule is, a person should E
8 retreat if he can do so in complete safety.
9 And it is often overlooked by most people, the rule 10 t ithin the rule, that the duty to retreat only applies if you 11 can do so in complete safety. You are not required to retreat, 12 even in states which have a so-called duty to retreat rule, if 13 you are placing yourself at additional risk.
14 COMMISSIONER GILINSKY: Wait a minute.
15 Suppose you are dealing with a situation of a guard 16 who could lock himself into some safe room.
Is that what he 17 is supposed to do?
18 MR. FONNER: Can he get there safely, is the 19 question...
20 COMMISSIONER GILINSKY:
Yes.
21 CHAIRMAN HENDRIE: Then stats law says he must, 22 right?
23 MR. FONNER:
It is not clear in Arkansas.
24 (Laughter.)
Aa-Fewo Rwormrs Inc.
l 25
.I'm dealing with concrete cases.
i I
28 mm COMMISSIONER KENNEDY:
Could I ask one thing, while !1 j
we are g ing along --
2 MR. FONNER: Can I finish?
3 CHAIRMAN HENDRIE: The general retreat principle 4
w uld then say that if you can get there without increasing 5
hazard to himself, he ought to give way before the deadly force.
6 MR. FONNER:
That's right.
7 But there are exceptions to this.
There are text 8
writers who maintain that this does not apply at all either in 9
the home or on business premises, 10 There are some who take issue with the business-jj premise exception.
12 COMMISSIONER KENNEDY:
Do our regulations -- we have 13 a companion regulation here which is the training and qualifica-j, ti ns.
15 Does it in clude law school training?
16 (Laughter.)
17 MR. FONNER: No, sir, but it does require that the
)g j9 l guards be instructed in the rules of homicide in their state, the rules of arrest by private person, and aspects of 4he use 20 t
l f deadly force and less than deadly force, in great de: ail, l
21 a syl:.abus which has been prepared by the Staff.
22 I
COMMISSIONER KENNEDY: This guy is going to get j.
23
,1 killed while he thinks through all of this.
24 Ace-Federd Reporters, Inc.
(Laughter.)
25 i
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CHAIRMAN HENDRIE: Now the fact that we have a 1
2 regulation that lays upon our licensee's employees, a responsi-3 bility to interpose themselves, then does that overrule the 4
retreat provisions?
3 MR. SHAPAR: We don't construe any of our regulations 6
as overruling state criminal law.
We don't construe any of 7
our regulations in this area as overruling or preempting state g
law.
9 CHAIRMAN HENDRIE: I understand this.
10 But any state that has retreat before deadly force, s
11 if you can provision in its criminal law that guards of an 12 NRC licensee confronted with a couple of people carrying pistols 13 and waving them, are required under state law to retreat if 14 they can do so without increasing the risks to themselves, or 15 other parties.
16 MR. FONNER:
I want to go back -- I started to mention 17 Arkansas.
The problem is Arkansas and New York. They are the 18 only two states from which~ licensees of operating reactors 19 have raised the issues.
20 Arkansas has a companion statute which says, 21 essentially, that you may commit a criminal offense under 22 "rkanse.s law, if it is reasonably necessary to prevent the i
l 23 commission of a. larger offense.
l 24 In other words, you can -- if we conceived a l
Ace Feded Reporters, fr.c.
25 situation of somebody coming over the fence of a power reactor I
30 mm armed with apparent intent to commit sabotage of significant and serious nature, very likely under Arkansas law, the guard 2
could be told, " Stand your ground."
3 COMMISSIONER KENNEDY:
How does he do that?
4 "What are you coming over the fence for?"
5 MR. FONNER: These are imponderables, Mr. Kennedy, 6
that I'm not qualified to answer.
7 CHAIRMAN HENDRIE: Okay.
8 So in Arkansas there may.be a separate statute 9
which tends to neutralize this stated retreat provision.
10 Now what about states that have the provision and jj don't have corresponding other releases?
12 MR. FONNER: We addressed this issue back in 13 a memorandum -- Mr. Shapar signed it back in 1976; it was j4 viewed in OGC and received their approval as well -- in which 15 we p inted out that one of the essential features of the 16 protective system as far as the guard is concerned, is he j7 should go out there, and if it is an offense that is taking 18 j9 place, it is an arrestable offense, he should arrest the man.
Because in effecting an arrest,. you are entitled to use force 20 to the point where you need not retreat, the person being 21 arrested attempts to counter your arrest with deadly force.
22 And we 2. raised that, we pointed out that problem.
23 24 And as I indicated earlier, this is an area where you have Ace Feder:$ Reporters, Inc.
i 25 rules i;ithin rules, circles within circles, depending upon the f
.i.
31 mm level you want to go.
j CHAIRMAN HENDRIE: Okay.
2 Now, let me recite my lesson thus far and see if I 3
have got it right.
4 I'm a guard in a state which has a retreat 5
pr vision.
Here comes this fellow with a mean look on his 6
face.
Now, if I can shout, "You are under arrest," before he 7
can get his pistol out, I don't have to retreat.
Right?
g MR. FONNER: You can attempt to effect an arrest.
9 In New York, a person coming over the fence - -
10 COMMISSIONER KENNEDY:
Does that constitute jj attempting to effect an arrest?
12 MR. FONNER: Well, you have to be making an arrest 13 in a position to be able to subject the arrested person to your j4 authority.
15 I think shouting at somebody from here across the 16 room, for a policeman may be all right.
I think for a guard, j7 it is maybe a little dubious.
.18 If he is close to him, he may make it more effective.
j9 But in New York, he can arrest somebody coming over 20 the fence for criminal trespass.
21 CHAIRMAN HENDRIE:
Can you institute the arrest 22 pr cess after he has brandished deadly force at y ou?
23 MR. FONNER: If he is in the protected area and he 24 I
Ace Federd Recortors, Inc.
has come in in an unauthorized ' fashion, he may be arrested j
25
32 h
1 for criminal trespassing.
2 CHAIRMAN HENDRIE: No, no.
3 If he is waving a gun at you, you have an obligation 4
under state law to retreat now.
5 MR. FONNER: Yes.
Except when you are effecting a 6
bonafide and legitimate arrest.
7 CHAIRMAN HENDRIE: Okay.
8 So you can go ahead and make motions --
9 COMMISSIONER KENNEDY: It depends on where you are.
10 If I understood that, it depends on where you are.
If you 11 are, like right here -- (Indicating) -- yes, but if you are 12 at the other end of the room, no.
13 If you are at the other end of the room you have 14 got to retreat, is that right?
15 MR:.FONNER:
I can't answer that question. You are 16 getting into details, potential details or factual situations 17 which I, as a lawyer, don't feel that I really want to --
18 COMMISSIONER AHEARNE: But I think what you are saying 19 is, those are debatable nuances.
20 MR. FONNER: Yes.
21 CHAIRMAN HENDRIE:
What had seemed to me was,that i
22 the provisions that have been worked out and laid out in the l
l 23 regulations, the fact that you dodge, get inbetween, meet force !l l
l 24 with force as necessary, including deadly force --
' Aa FWwd Reormrs, lm.
25 MR. FONNER: That they are clearly authorized to do
33 mm everywhere.
j CHAIRMAN HENDRIE:
--was about as good as we are 2
likely to do.
And it seems to me to try to go beyond that and 3
try to get some sort of statutory authority on how licensee 4
guards should go around shooting people willy-nilly was not 5
a thing they were likely to want to do, or made much sense.
6
,On the other hand, a reasonable comfort with the 7
pr visions that we have now written down, rests on them working 8
as straightforward 1y and simply as they seem to be.
You know, 9
principle number one, te guard shall interpose himself.
10 But now it turns out that that is encumbered, jj apparently, or possibly with all kinds of complications.
12 If the person he is interposing himself against, has i
13 pr duced a weapon and gives an indication of using deadly 14 f rce, the guard may not impose himself. He may be required to 15 retreat, if he can do this safely.
16 MR. FONNER: This has only been a problem raised by 7
.tw perating licensees.
There are situations where we think 18 that there are other provisions of the law which mitigate j9 that requirement, 20 CHAIRMAN HENDRIE: Well the Arkansas is sort of jj special.
22 Do you think the arrest provision is strong enough 23 24 and genegally enough applicable to save the day?
Ace Federti Reporters, Inc.
MR. FONNER:
I believe so.
This was the position ofI 25
34 I
the --
2 MR.
CASE:
The licensee hasn't been convinced of that 3
yet.
He said he cannot instruct his guards as the regulation 4
requires.
1 5
MR. FONNER: Only two of them. And they haven't 6
really said it that strongly yet.
7 MR. BURNETT:
Mr. C lairman, have we not gone into 8
the area debating the present regulations?
9 This paper as presented to you --
10 CHAIRMAN EENDRIE:
Yes, yes.
11 But what I'm saying to you is that at least -- it 12 seems to me I have already voted on this paper, haven't I, to 13 send off a letter to the Senate saying we think the regulations 14 are good enough as they are.
15 On the other hand if I find out what seemed to be 16 fairly straightforward instructions are unfollowable in some 17 states, now --
18 COMMISSIONER KENNEDY:
Or incomprehensible in others.
19 MR. BURNETT:
What I was trying to say, if, indeed, 20 our regulations are not enforceable, theithe Staff would want 21 to restudy the deadly force issue in that light.
22 You see, in pages 1 and 2 of this paper, we have 23 assumed that the present regulations were.
24 CHAIRMAN HENDRIE:
Just so.
Ace Federd Rooorters, Inc.
25 MR. BURNETT: Now if they don't, that's a completely
35 mm differen:. ballpark.
j CHAIRMAN HENDRIE: Just so.
2 MR. FONNER:
I think we can say safely Bob, that 3
for all states in which we have fuel cycle facilities with 4
strategic special nuclear material to which response rule of 5
73-50(g) applies, we are not faced withthe problem that we 6
have been discussing.
7 ETT: And amed wM dat guidance and de 8
following --
9 MR. SNYDER: How about transportt+ ion through some 10 jj states that we are talking about?
CHAIRMAN HENDRIE: We have got transportation, we 12 have got reactor plants.
13 If the Commission is going to write a letter with j4 regard to this GAO recommendation and say no, we think every-15 thing is fine as it is under present authority, then we don't 16 need to consider further any legislation.
j7 I w uld like that not to have t" se qualified except 18 for reactor plants, except for transportation, except for seveni j9 other situations that we are thinking about.
20 MR. SMITH:
It seems to me -- you know the GAO 21 contained this recommendation, and what they were really saying.
22 is to seek federal or state legislative authorities to allow 23 24 guards to take a human life when you suspect that someone is l Ace-Federd Reporters, Inc.
25 stealing SNM.
And it seems tome, after listening to Mr. Fonner,.
l I
1 I.
j m
36 mm I
that the issue of human life taking human life when you are 2
threatened by another individual, or others are threatened, 3
that's a complex legal problem in itself.
4 When you are talking about taking a human life 5
because a potential factor of, he thinks someone has stolen
-6 material, then you are even getting into it deeper.
7 CHAIRMAN HENDRIE: Well, for myself, I'm just not 8
about to contemplate that course.
9 On the other hand, if indeed the sort of things 10 that have been raised here, retreat requirements and so on, 11 do constitute a stumbling block to a clear understanding of 12 the regulations and their effectiveness in the present form, 13 then I don't know whether that suggests what ought to be 14 discussed with the Congress, provisions to deal with that 15 specific difficulty.
16 MR. FONNER:
May I suggest something?
17 If that is perceived to be the problem, perhaps the 18 Congress could be queried on whether a statute which would 19 simply state that guards at licensed nuclear facilities were 20 under no duty to retreat on a show of deadly force, notwith-21 standing any provision of the state law to the contrary.
Simply 22 address that precise, narrow issue.
I i
23 CHAIRMAN HENDRIE: Just so.
24 And at the moment it is not very clear to me whether
' Ace Feder9 Reporters, Inc.
25 the problem is a suffiently serious one, that one ought to go
I 37 1
1 out and seek such --
2 MR. FONNER:
I don't think it is that serious.
3 MR. BURNETT:
Is there any credence to going back 4
tathe states, those ones concerned, in looking for a cha nge S
in that direction?
6 CHAIRMAN HENDRIE: It is possible.
The Commission 7
could always discuss with the various people of the states, 8
if there were di2fi culties.
9 MR. BURNETT: The reason I bring that up, having 10 !
been associa'ced with law enforcement, there was a law enforcemen:
11 action problem exerting certain authorities in one particular 12 state in this country.
And rather than go back and augment 13 federal rules to take care of that, a bill was actually written 14 in that state to accommodate this particular law enforcement 15 agency.
And it was done simpler and faster, and made the same 16 end.
17 MR. FONNER: May I say one thing more?
18 I think the Commission ought to know that in the 19 current criminal justice bill that is before the Congress, 20 which there is a great deal of controversy surrounding, as 21 you know, that the issue of the use of deadly force in self 22 defense and other circumstances, was one of the areas which'wasi !
l l
l 23 dropped from the bill because it was too contentious and l
24 Senators Xennedy and McCormick could not come to agreement on l Am-Fews Reorters, fx.
j 25 how to handle it in that bill.
So that that bill ler.ves the i
38 mm question up in the air under federal authority as well.
j S
y u w uld be going forward to the Congress 2
asking for something which tNy could not themselves handle in 3
/
the Justice Department and in their own conferences in the 4
criminal justice proceeding.
5 COMMISSIONER KENNEDY: But in that context then, I 6
guess I would want to know the bases for their concern. And 7
are we, by the rules we have in place or are propcsing to put 8
in place, stepping beyond the 1imits whidithey believed were 9
appropriate?
10 MR. SHAPAR:
Our rules, if the premise is correct, jj dovetail with the current authority under state law, wit h 12 the two exceptions that have been raised and discussed at this 13 table.
It purports to be within the realm of existing state j4 15 COMMISSIONER AHEARNE: Could I ask, you had mentioned g
that this issue of retreat has only been raised by licensees j7 in tw
- states, 18 MR. FONNER: That's right, sir.
j9 COMMISSIONER AHEARNE:
Putting aside the question 20 l
of whether it was raised or not, in how many states does that g
kind of provision exist?
22 MR. FONNER:
There are, approximately, to my_
23 24 knowledge, I'd say ten or eleven states where this type of Ace-Federd Rooorters. Inc.
formula is voiced.
To the extent to which it is applied in fact, 25 i
l
39 mm is very difficult to say.
j i
Alabama is one.
Arkansas --
2 COMMISSIONER AHEARNE: Ten or eleven states now do 3
have a provision in the law --
4 MR. FONNER:
A very definite minority, yes.
5 COMMISSIONER AHEARNE: Well, a minority, but still 6
a --
7 MR. FONNER:
Just an example of how the confusion --
g how confused the area is among people who write state laws.
9 The people who commented on the New York law which was enacted 10 in 1968, cited by Niagara Mohawk, state that it is based upon 11 an Illinois State Statute.
It derives frem Illinois state law.
12 13 Yug 1 ok at the Illinois state law and there is no order to retreat.
34 CHAIRMAN HENDRIE: What was the rationale for these 15 16 retreat provisions in. state law?
MR. FONNER:
It is a provision of Old English Common j7 Law, and it really was developed historically for the 18 j9 confrontation between two gentlemen of honor, you know, on the !
street.
I draw my sword, and if you can get around the corner ;
20 before I run you through, you should, rather than drawing your 21 sword in return.
22 That's really how far back it goes.
'm 23 J
24 But, it grew out of that circumstance.
i Ace Federd Rooorters. Inc.
25 COMMISSIONER AHEARNE: Let me ask another cuestion.
I
i 40 mm Bob, you.had mentioned in one of your slides that j
j i
the deadly force authority question, one of the provisions 2
being thought of for legislation would exceed any existing.
3 police authority.
l 4
MR. BURNETT: Yes, sir.
5 COMMISSIONER AHEARNE: But then on the other hand, 6
I think you explained in New York State the permission that 7
you can use deadly force in the case of --
g
~
MR. FONNER:
I have to draw a difference between 9
what may be allowable under state law in the use of deadly 10 force, and what police departments are, in fact, authorizing 11 their officers to do.
12 COMMISSIONER AHEARNE: There is a difference?
13 MR. FONNER:
There has been a general constriction 14 over the years of what police have been authorized to do.
That 15 is, what ambit of activity they would be supported in by their 16 own authorities, and where they would be thrown on to --
j7 COMMISSIONER AHEARNE: Then Bob, was your point that 18 j9 that would exceed what police departments are authorizing rather than e x:eed what law would authorize.
j 20 i
MR. BURNETT:
Including federal organizations.
21 That's right, sir.
22 MR. SHAPAR: But it is highly significant.that they l
23 reasons that we have probably been discussing here, have l
24
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chosen voluntarily to make that description.
25 I
l n
i 1
I 41 mm MR. BURNETT:
They are not going to delegate it to j
law enf reement in all cases.
2 i
i COMMISSIONER AHEARNE: Could someone explain to me 3
why we should have a separate set of regulations, or why we 3
should not have a separate set of regulations for reactor 5
guards and nonreactor guards?
6 MR. SMITH:
The regulations are identical, the 7
WordS are identical.
g COMMISSIONER AHEARNE: So in essence what we are 9
considering is a set of regulations. And that if changes are 10 11 to be made, they would apply to both?
COMMISSIONER KENNEDY:
But there is some difference 12 there because in the one case you are dealing with SNM and 13 the other case you are probably not.
j4 MR. FOcTNER:
I would say the rules would not have 15 to be identical.
16 l
The fact is they are, but I would not say they had 37 t
be.
There may be differences in the situation between j
18 i
power reactor's and other facilities, j
39 COMMISSIONER AHEARNE: But if they are identical, j
20 are y u suggesting recommending discussing making them 21 different, or any changes that might be discussed?
22 MR. SMIrH: No.
We have not had those conversations.
l 23 COMMISSIONER AHEARNE: My conclusions are -- they are 24 Ace-FederW Reporters, Inc.
not that dissimilar from Commissioner Kennedy's.
I really 25
~
.x
i I
42 mm feel sorry for the guards.
The legal nuances that you have l
j been discussing, which obviously in most of the scenarios are 2
being raised, that the appropriate answer is, well it is 3
debatable how they should be interpreted.
4 MR. SEAPAR: That is true of every policeman in the 5
country.
6 MR. BURNETT:
I was going to say almost every 7
policeman faces that situation.
g I
COMMISSIONER 'CENNEDY: But we should take no comfort 9
from a notion of that kind because, what does it mean -- you 10 know, you are asking a f ellow who, for various reasons, has jj been unable to go to law school before he took this guard's 12 job, to make a whole lot of decisions which he simply icn't 13 equipped to make.
And therefore, he is not going to make them.
ja We should not, theref one, conclude that while we 15 write all of these beautiful words down in our regulations, 16 that they really might have much effect.
The guy isn't going j7 i
to do those things.
18 I
MR. CASE:
I think we must make them as simple as j9 l
we can.
20 l
COMMISSIONER KENNEDY:
THat's precisely the point.
21 And don't try to get this guy to do things, with whatever 22 nuance you want to put in, don't try to get him to do things 23 t
that he is not going to do, or things that are not absolutely 24
' Ace-FederJ Reporters, Inc.
clear, unmistakably clear, unquestionably clear that he can do.
25 0
________________._____tj
43 mm I
And he doesn't have to sit and wonder about it.
2 MR. BURNETT:
Or, sir, absolutely necessary in a 3
prudent safeguard system.
4 COMMISSIONER KENNEDY: Exactly.
5 Don't do it, the guy isn't going to do it. And, if 6
we write things down in the regulation on the assumption that he 7
will,and he doesn't, you don't have a very good regulation.
8 MR. FONNER:
I think our current rule is as simple, 9
and precise and as carefully constructed as we can possibly make 10 it.
I think it strives to reach those objectives.
II MR. CASE:
I agree with you, Bob, except for 12 Arkansas and New ' York, then the guy is lost.
13 MR. FONNER: We haven't finished with those two 1
14 states yet. The game isn't over.
15 COMMISSIONER AHEARNE: One last question, if I can.
16 The impression I got reading some of this background I
I I7 material, was that we were in some way going to talk to DOE 18 about our response.
l9 Is that wrong?
20 MR. BURNETT: ~ Explain, sir.
l 21 I have been in almost daily contact on this subject.
22 COMMISSIONER AHEARNE: Okay.
Okay.
j The point is, our proposed response to the Congress l v -
23 24 says, few instructions are equivocal.
In the last analysis Am Focord Reporters, Inc.
25 DOE stated -- then new guard force response rule gives more l
44 mm clearcut guidance to the guards.
l j
l Are we g ing to give DOE a chance to comment on j
2 what they want to change,ctheir response?
Or are we going to 3
let them know that we are going to say that?
l 4
t Basically what I think I'm saying is, we are saying 5
we are not going to change our rules because we think they 6
are really sound and our regulations are good. By the way, DOE's 7
aren'.t.
,a MR. BURNETT:
Well, I guess I had not thought to go 9
back to them officially and get a statement, Commissioner, on 10 that.
ij COMMISSIONER KENNEDY:
I agree with Mr. Ahearne.
12 I don't think we ought to be --
13 CHAIRMAN HENDRIE: Is that Section 6 necessary?
ja MR. BURNETT: Well, it has been raised to us on 15 comparability between us and DOE.
That sentence might not be i
g j7 necessary.
[
But I think if you don't say something to Congress, 18 i
you are going to get a response back saying, what about --
j9 COMMISSOINER AHEARNE:
Im not saying you shouldn't j
20 l
say something to Congress.
21 i<
My only point is that paragraph 6 seems to be a 22 charge that DOE.'s regulations are not good.
That may well i
23 entirely be true, but I think you ought to let them know that 24 Ace Federd Reporters. Inc.
you are going to make that charge and see whether they want to t
25
a 45 mm i
either change what they are doing, or have something else to 2
say about it.
l 3
MR. BURNETT: Well, their legal staff would be the 4
first to admit, just like ours, there is a lot of ambiguities. l 5
MR. SHAPAR: They ought to see it.
6 MR. BURNETT: I don't disagree at all with that.
We 7
can do that.
I'm sure it will result in some changes in the g
wording here.
9 CHAIRMAN HENDRIE: Are those instructions public 10 documents?
11 MR. BURNETT: Yes, I am told that they all are.
12 MR. SMITH:
This is in the PDR.
13 MR. BURNETT:
It is ah unclassified set of -- it 14 is my understanding it is public information.
15 CHAIRMAN HENDRIE:
One might, in place of most of I
16 the discussion in number 6 there, the attachment of the proposed i
17 letter.
Just a note that the DOE statement on the matter is l
l 18 attached for information, and that on balance, we, the NRC, l
19 think our statement in the regulations, in the way we instruct l
I
(
20 our guards, we regard it as better for our purposes.
l 21 MR. BURNETT:
If we ask them for an official statement' i
22 it will probably be more in accordance with the total letter i
23 which I did not quote to you, Commissioner.
But they raise
{
I 24 three or four points; that they think their system, one, is
! Ace-Feders Reporters, Inc.
25 based on common law; two,they were authorized by federal statute i
l 46 mm to carry a firearm, and that encompasses a certain amount of l
j t
authority that you are going to use it, or you wouldn't have 2
been authorized to carry it; and then the third thing,the l
3 I
instructions that they base their legal opinion on, that 4
4 whole cadre.
5 CHAIRMAN HENDRIE:
I think from the standpoint of 6
ur making a comment about the DOE system in an NRC or 7
Commission letter to the congress, might be judged better if 8
you let them provide the paper they would like to see, attached.,
9 Just say, "Here it is, we have read it, but we like the way we 10 said ours better for our situation."
ij MR. BURNETT: We have done that in the past, and 12 that's no problem.
13 CHAIRMAN HENDRIE:
I think in any case they ought j4 to have a chance.
15 Now the issue before the Commission then is whether 16 to send to the Congress a letter along the lines of that j7 drafted and presented in the Staff paper, with suitable adjust -
18 ments to the attachment as we discussed.
j9 Or, whether to go in some other direction.
20 Perhaps legislation of some kind, or whatever.
And, let's see.
21 Sam, what's the vote so far on this?
l 22 1
i
(
MR.CHILK:
I do not have a vote from you, t
23 i
Mr. Chairman, although you have indicated --
24 Am.Fev2 Roornes, In CHAIRMAN HENDRIE: All right, I can rectify that.
25
- 4 47 l
mm MR. CHILK:
I have Commissioner Kennedy nonconcurring.,
j ll' I have Commissioner --
2 COMMISSIONER KENNEDY:
My nonconcurrence was 3
pending a discussion.
4 CHAIRMAN HENDRIE: Yes, that's why we had the 5
discussion.
6 MR. CHILK:
I have Commissioner Gilinsky concurring.
7 Commissioner Ahearne concurring with a comment that 8
we get the briefing and we advise DOE as Rowden had promised.
9 No response as yet from Commissioner Bradford.
10 CHAIRMAN HENDRIE: Maybe the best thing to do would 11 be to complete our consent sheets.
12 You and I need to decide what we think, Peter.
13 Dick can say, now that he has had briefing, what he thinks.
14 Maybe that would be the best thing.
15 16 W uld that be all right with you, to deal with it t
in that fashion rather than vote?
l j7 COMMISSIONER BRADFORD:
Right.
18 CHAIRMAN HENDRIE: Thank you very much for a very j9 i
interesting discussion.
20 (Whereupon, at 11:45, the hearing in the above-21 i
i entitled matter was adjourned.)
22 23 4
24 Am Federd Reporters, Inc.
25