ML20059K022
| ML20059K022 | |
| Person / Time | |
|---|---|
| Issue date: | 01/19/1994 |
| From: | Selin I, The Chairman NRC COMMISSION (OCM) |
| To: | Lieberman J, Simpson A SENATE, ENVIRONMENT & PUBLIC WORKS |
| Shared Package | |
| ML20059K046 | List: |
| References | |
| CCS, NUDOCS 9402010298 | |
| Download: ML20059K022 (21) | |
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UNITED STATES 2
NUCLEAR REGULATORY COMMISSION 3, 'n ' ' l ' '[
WASHINGTON. D.C. 20555
.f Janua ry 19, 1994 CH AIR M AN The Honorable Alan K. Simpson Subcommittee on Clean Air and Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, D.C.
20510
Dear Senator Simpson:
This responds to your letter of December 2, 1993, in which you solicited NRC's views regarding two sections in Title II of S.
- 1162,
's reported to the Committee on Environment and Public Works by tne Subcommittee on Clean Air and Nuclear Regulation.
Specifically, you invited comment on section 209, which addresses the size of civil penalties for violations of medical therapy licenses, and section 205, which deals with carrying of firearms by guards at NRC-licensed facilities.
With respect to section 209, the Commission does not believe that increasing base civil penalties for medical and materials licensees is best accomplished by statute.
To retain adequate flexibility in dealing with violations, it has been the NRC approach to publish base civil penalties as enforcement policy..
In this regard, section 234 a. of the Atomic Energy Act already authorizes a civil penalty of up to $100,000 per violation.
In appropriate cases, the NRC staff has imposed sizable civil penalties for violations by medical licensees.
In addition, we would note that NRC practice is to publicly announce all civil penalty actions.
The motivation for licensees to avoid the adverse publicity associated with the civil penalty can itself be as powerful a motivational factor to improve compliance performance as the threat of monetary penalties.
In response to your specific question regarding the likely impact of section 209 on NRC's enforcement actions, we anticipate that passage of section 209 would generally result in increases in the size of civil penalties issued to medical licensees, and that such increases would lead more licensees to challenge their penalties, which would in turn require a greater expenditure nt NRC resources to meet the challenges.
It could also increase licensee requests for mitigation of the civil penalty on the ground of adverse financial impact.
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January 19, 1994 CHAIRMAN l
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The Honorable Alan K.
Simpson Subcommittee on Clean Air and Nuclear Regulation Committee on Environment and Public Works i
United States Senate
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Washington, D.C.
20510 i
Dear Senator Simpson:
This responds to your letter of December 2, 1993, in which you j
solicited NRC's views regarding two sections in Title II of S. 1162, as reported to the Committee on Environment and Public
]
Works by the Subcommittee on Clean Air and Nuclear Regulation.
Specifically, you invited comment on section 209, which addresses j
the size of civil penalties for violations of medical therapy
]
licenses, and section 205, which deals with carrying of firearms by guards at NRC-licensed facilities.
1 l
With respect to section 209, the Commission does not.believe that
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increasing base civil penalties for medical and materials j
licensees is best accomplished by statute.
To retain adequate j
i flexibility in dealing with violations, it has been the NRC i
approach to publish base civil penalties as enforcement policy.,
l In this regard, section 234 a. of the Atomic Energy Act already i
j authorizes a civil penalty of up to $100,000 per violation.
In appropriate cases, the NRC staff has imposed sizable civil penalties for violations by medical licensees.
In addition, we would note that NRC practice is to publicly announce all civil j
l penalty actions.
The motivation for licensees to avoid the adverse publicity associated with the civil penalty can itself be j
as powerful a motivational factor to improve compliance 1
performance as the threat of monetary penalties.
j In response to your specific question regarding the likely impact of section 209 on NRC's enforcement actions, we anticipate that passage of se.ction 209 would generally result in increases in the 1
size of civil penalties issued to medical licensees, and that such increases would lead more licensees to challenge their penalties, which would in turn require a greater expenditure of NRC resources to meet the challenges.
It could also increase.
licensee requests for mitigation of the civil penalty on the ground of adverse financial impact.
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. l In addition to these policy concerns, section 209 contains some technical drafting problems that we have identified in a separate analysis of that provision (Enclosure 1).
Our responses to your questions regarding section 205 are contained in Enclosure 2.
I hope that our responses to your questions will assist you in addressing this legislation further.
Sincerely,
,,y Ivan Selin
Enclosures:
1.
Section 209 Analysis 2.
Section 205 Responses I
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WASHINGTON. D.C. 20555 s
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January 19, 1994 CHAIRMAN The Honorable Joseph I. Lieberman, Chairman Subcommittee on Clean Air and Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, D.C.
20510
Dear Mr. Chairman:
This responds to your letter of December 2, 1993, in which you solicited NRC's views regarding two sections in Title II of S. 1162, as reported to the Committee on Environment and Public Works by the Subcommittee on Clean Air and Nuclear Regulation.
Specifically, you invited comment on section 209, which addresses the size of civil penalties for violations of medical therapy licenses, and section 205, which deals with carrying of firearms by guards at NRC-licensed facilities.
With respect to section 209, the Commission does not believe that increasing base civil penalties for medical and materials licensees is best accomplished by statute.
To retain adequate flexibility in dealing with violations, it has been the NRC approach to publish base civil penalties as enforcement policy.
In this regard, section 234 a. of the Atomic Energy Act already authorizes a civil penalty of up to $100,000 per violation.
In i
appropriate cases, the NRC staff has imposed sizable civil penalties for violations by medical licensees.
In addition, we would note that NRC practice is to publicly announce all civil penalty actions.
The motivation for licensees to avoid the adverse publicity associated with the civil penalty can itself be as powerful a motivational factor to improve compliance performance as the threat of monetary penalties.
In response to your specific question regarding the likely impact of section 209 on NRC's enforcement actions, we anticipate that passage of section 209 would generally result in increases in the size of civil penalties issued to medical licensees, and that such increases would lead more licensees to challenge their penalties, which would in turn require a greater expenditure of NRC resources to meet the challenges.
It could also increase licensee requests for mitigation of the civil penalty on the ground of adverse financial impact.
--~
-2 In addition to these policy concerns, section 209 contains some technical drafting problems that we have identified in a separate analysis of that provision (Enclosure 1).
Our responses to your questions regarding section 205 are contained in Enclosure 2.
I hope that our responses to your questions will assist you in addressing this legislation further.
Sincerely,
/
/;
/
Ivan Selin
Enclosures:
1.
Section 209 Analysis 2.
Section 205 Responses
i I
l ENCLOSURE 1 Section 209 Analysis l
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l ANALYSIS OF AMENDMENT REGARDING MINIMUM CIVIL PENALTY FOR VIOLATIONS OF MEDICAL THERAPY LICENSES i
(Section 209)
Section 209 would amend section 234 a. of the Atomic Energy Act by inserting an additional sentence after the first sentence of the subsection.
The subsection would, therefore, read as follows: (additional sentence is underlined) j Any person who (1) violates any licensing provision of section 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, or 109 or any rule, regulation, or order issued 1
thereunder, or any term, condition, or limitation of any license issued thereunder, or (2) commits any I
violation for which a license may be revoked under section 186, shall be subject to a civil penalty, to be imposed by the Commission, of not to exceed $100,000 for each such violation.
Subiect to the discretion of the Commission oursuant to the last sentence of this subsection, a civil eenalty innosed under the orecedinq sentence with resoect to a medical theraov license under section 81 or 104 a.
shall be in an amount that i
is not less than S20.000m If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purpose of j
computing the applicable civil penalty.
The Commission shall have the power to compromise, mitigate, or remit such penalties.
We understand that the intent behind the inserted language is to require the calculation of civil penalties under 10 C.F.R. Part 2, Appendix C, to use $20,000 as the base civil penalty from which adjustments will be made in medical misadministration cases.
The new language contains the following technical drafting problems:
1.
The proposed language refers to a " medical therapy license."
It is not clear whether medical diagnostic use of radioactive materials was deliberately omitted.
Some misadministrations in the course of medical diagnosis can be quite serious.
2.
NRC does not issue medical therapy licenses as such.
Rather, under section 81 of the Atomic Energy Act, the agency issues licenses authorizing medical use of byproduct material and, under section 104 a. of the Act, the agency issues licenses authorizing use of utilization facilities in medical therapy.
-2 3.
The inserted sentence could lead to confusion.
It
~
refers to the last sentence of the subsection, which addresses the Commission's authority to compromise, mitigate, or remit (i.e.,
lower) penalties.
Presumably, it was not intended that the amount of S20,000 should be used only in calculating downward adjustments for penalties for misadministration of medical therapy.
The result would seem to be contrary to the sponsor's intent if this amount were not also used as the standard for escalation of penalties.
4.
The inserted sentence is, on its face, somewhat self-contradictory.
It basicnlly says that subject to the Commission's power to lower the penalty, the penalty "shall be in an amount that is not less than S20,000."
It may be helpful to clarify this language to better express the intent of the amendment.
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l ENCLOSURE 2 Section 205 Responses l
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RESPONSES TO QUESTIONS RELATING TO AMENDMENT OF AEA S161 k.
(Section 205) i OUESTION 1.
What authority do guards at NRC-licensed facilities currently possess regarding the possession and discharge of firearms while in the performance of their duties?
ANSWER.
Guards at NRC licensed facilities draw their authority to possess and use firearms in the performance of their duties from State law.
State law also establishes the rules applicable to those guards regarding the criminal consequences of the use of firearms, including the use of deadly force.
This means that state law determines whether the killing of a person while guarding material or a facility would be justifiable homicide or not.
The statement of considerations for the Commission's rule on guard force response to an alarm discusses this issue (copy attached).
The NRC rules on guard force response (10 C.F.R. 73.46(h), and 73.55(h)) impose a protective obligation on the guard force; however, the use of deadly force is left to the discretion of the individual guard.
The licensee is only obligated to instruct the guard force in the use of deadly force in terms of applicable state law.
OUESTION 1 (Cont.)
-2 Section 161 k., if amended as proposed by section 205, would establish Federal law in the form of NRC regulations as the basis for instruction of guards on the use of firearms.
The regulations would be consistent with:
(1) Department of Energy (DOE) rules at 10 C.F.R. 51047.7, which implement DOE's authority under section 161 k. by instructing protective force officers at facilities that fall under DOE jurisdiction on the circumstances in which use of deadly force is authorized; and (2) a Department of Justice March 31, 1986 letter to DOE, which generally endorsed the DOE rule.
The letter noted as a caveat that deadly force should probably not be used against a fleeing thief who does not possess special nuclear material if violence has not been used in perpetrating the theft.
Note that the amendment proposed by section 205 would only affect facilities witn formula quantities of strategic special nuclear material (SSNM), and not nuclear power reactors.
(See response to question 6, below.)
l l
PART 73 o STATEMENTS OF CONSIDERATION full time member of the security organ 1 within the protected area to only those n1zation Act of 1974. and Section S52
- stien sno is authortred to direct the sc. des!gnated as emergency or secursty ve.
and 153 c! t:tje 5 of the United States tivities cf all other members of the secu. hicles except under emergency conda. Code. the fouowing amendments to Title rity crean12auon be onsste at all times. tions. Based on comments received the 10. Chapter L Code of Federal Regula.
- 15) De proposed rule did not spect!y Commission has concluded that addl. tions. Part 73 are published as a docu.
a level of luuminauon. Comments indl. tional transportauon. Other than for ment subject to codificauon.
cated that a level of illummation should emergency and security purposes is re.
be spec 1 Sed. Se rule set forth below quired to perform necessary plant func.
specthes a level of illumination which is tions. Retefore. the rule set forth below su!5clent for the monitoring and onseryg. has been modified to permit designated uon remtirements,
!!censee vehicles necessary to perform 42 M M i
- 16) De proposed rule used the term of5cial plant functJons within the pro.
"buDet penetration resistance." Com. tected area but with certain nemmary Weea 12122M ments indicated a need for a clear mean. controls.
N W81 6 ing. Since the mener of bullet pene.
(12) The proposed amendments spect.
trauon resistance'* vna covered in the fed that locks. keys. combmations. and PANT 73-MSrCAL PROTECDON OF term " bullet. resisting" def*.ned and used other related equipment used to control P W T3 N 8dAT M ALS by the Underwriters' Laborstories (UL) access to protected and vital arena be Guard Force Resporite to an Alarm Standard UL-752. the rule ses f orth below contreued to reduce the probability of AGENCT: UA Nuclear Regulatory mas changed to use the term " bullet. compromise and be changed whenever twmmiaawm resisung" and a new definition has been there is evidence that they may have been added in i 73.2 to correspond to the deft. compromised. An additional requirement AMR Mal rule.
n! tion of " bullet. resisting" used by the to change upon terminataan of employ.
SUMMARY
1 he Nuclear Ratulatory Stancard UL 752.
ment of any employee, keys. locks, com. Cammianh is amendans sta regulations (7) Re proposed rule would have re. binauons. and related equipment to to clarify tba s.larm rtsponse roquare.
quired that cargo be off !caded outs!de which that employee has access, has ments for oca11e guards to protect spe.
the protected area. On the basis of pub. been included.
etal nuclear matartal from theft and lic comments. It was determined that og (13) ne proposed amendments spect. 11aanaad Diants from industrial anhaeats.
leading outside the protected area may ned that the riew rules be implemented EFyTCTIVE DA'!T1 De amedments not be cost e11ective. Tne rule set fcrth by licensees by 180 days from the date becoma efective Ja.nuary 23, 1973.
below provides for off loacing inside the af Commission approval of the pnysical ggggg protected area under appropriate secu. security pian. Comments received showed
.g.AC'T*-
tity concitions and, to tne extent prac. a need for additional time for implemen.
tactDie, at a specincany designated mate, tatlon of certain f eatures. It appears that George W. McCortle. Chief. Physical rials receiving area snat is not adjacent adcluonal time could be provided for Securtty warmg Branch. UA. Nu.
to a vital area.
compliance with some features of the clear Regulatory Commia=*= Wash.
- 48) De proposed rule wouJd have re. rule without prejudice to the public ington. DA 33555, 301-427-4181.
quired that either the dr1ver of a vent. hulth and stiety and common defense BUPPLDENTART INFORMATION!
cle permitted access into tne protected and security. Other f estures can be more On February 10.1977, the Noelear Regn.
area possess an AEC personnel security prompuy implemented. De Cnmmtuinn 1 story C e minaian published h the clearance, or the vehicle be driven by an has therefore concluded that a graded Piceast. Rassstra (43 FR 83333 proposed employee of the licensee whtle in the pro. program for implementation is desirable. unendments to its reguistlees In 10 CPR tected area. Based upon the comments The rule has been changed to permit Part 13 *Ptysical Protac*seen of Plaats received and the attendant neresse in additional time for construction and in. and Matertals." which would tiertfy the tratte that would result from stem (71 stallauon requirements and to require responstanicas of the oestle guartes for above. regarding off loading, the rule has the procedural aspects in the organiza. the protecuce of rpecial nuclear matertal been revised to require that all vehicles. tion, access. communications, and re. from theft and licensed planta freen in.
except cesignated licensee venicles, re, sponse provisions to be implemented by dustrial sabotags, add woo.id masure uni.
quiring entry into the protected area May 25,1917.
formity in the application of requistory sha11 t;e escorted by a member of the (14) De proposed amendmenta wouJd ratultmenta in this important area.
security organization while within the have required that access control to the Inhed parues wm ined 2 e mit comments and suggestacas in ecm.
protected area.
protected area proceed progressively
'96 The proposed rule would have re. from the detecuen of arearms and ex.
quired that all pactages tie searched prior pics 1ves to identiacation and admisalon, h Upon era to entry into tne protected area. The rule that the function for the detection of the comments remtved and other factors ret forth below has been cha.cged to per. Arearms and explosives be physically involved. Ce Nuclear Regulate Coen.
mit certain Commission approved deliv. separate from the funcuon of identiaca. miuton has adopted the proposed cry and inspection activatles to be con. tion, and that individuals performing the amendments, with certain whuma ducted althin protected or vital areas for ident1Scation and controlling admittance as set forth below. Sign 1 Scant differome reasons of saf ety, security or operational be housed in a structure capable of pro. from the proposed unendment pubitabed necessity.
viding physical protection to the occu. for comment ars! (1) Restructuring and t101 he proposed rule would have pants to assure their ability to respond rewording of the measures to tpe taken required appropriate barriers to obstruct and summon assistance. On further con.
to neutralize a threst, and (3) rewording ready acceas to vital areas by ground sideration, these provisions appear to be of condluona for the use of deadly foece.
Vehicles. The Commission has decided unduly restrictive. The important factor 80tne of the commente received indl.
cn the basis of studies in progress that in preventing a compromise of such an cated a belief that the guard force me.
this proposed prov111on as it appj1e3 to access Control funcuon is to protect the hans listed !n the prOpoted rule were
\\ehicles Enould not be included in the ability of the guards to respond and to sequential Rat la. UM vaa not to beg 1n regulations at this time. This proposed summon assistance. Accordingly, the tmt!! (11D was completed. 'Ib clattfy fts amencment has been deleted from the progression and physical separation pro.
Intent, the rule was FTworded to recruire rule set Icrth below, althougn pnysical visions discussed above have been dejeted that neuona to neutralise the threat (In.
barriers are required for protection from the amendments and a requirement terposing guards betvean special nuclear agamst attempts at unauthorized access added for isolation of the individuaj(s) material and any person aHmmM2ng of the character described in the generaj responsible for the last access control entrf for the purpose of industrial saben.
performance requirements.
function within a bullet-resisting strue. tage or theft, etc., and inform 2ng local ills R.e proposed rule would have ture to assure his ab111ty to respond and law mforcement agencies of the threat umited the admission of vehicles de. communicate.
and requesung assistance) be taken om.
U s4ned primarily for carrymg passengers Pursuant to the Atomic Energy Act fh' n
d tetl of 1954, as amended. the Energy Reorra.
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PART 73
- STATEMENTS OF CONSIDERATION requesung asanstance from the local law applytng deadly farce is the person wh3 aminementa within 80 days after pub l
enforcement agency. In any instance must have a r====Wa belief that such Ucation m the Ptnamaa Rectsrta. The wbers active measures to neutts!!se a force is necessary in self-defense or in Cornmmion also has under consider.
threat are smacrtasen, requesung as*
the defense at others.
staan other proposed amendments to I
sistance from tav anforcement personnel PLtrsuant to the Atogalc Energy Act of 10 CTR Part 13 that telate to the re.
I appears prudent 1984. as amended the Energy Roorgans.
sponse to a safenards contmeeney.
nroe commentore addressed the Com.
sauen Act of 1974. and Secuon 683 of These more published on July S.1977 5
mission's statement on the use of deadly
'ntle 5 of the United Istates Code, the H2 m 34110L and em titled.7Per.
forte as contained in the proposed rule.
fauowing amendments to 'I7tle 10 formance Ortented Safeguards Re.
One ccanmentor felt the Atomic Enerry Chaptar L Code of Pbderal HarulationsL quireroents. The cornment persed ex.
I Act of 1954. as amended. abould be Part 73 are pubushed aa a document sub.
pired on September 10.1977.
vtewed as preemoung state law in this Jeet tomodinoation.
NW meu the i
area. Othm sand the rule abound permat e
n is incorporatms some see.
i the cae of dandly force to prevent a uens of me pmposed amendments i
g,3,,,'
pubitehed on Just S.1877. trs the final ne use of deadly fases by private rule on safeguards contmseray plan.
a3pm stos3 i
j guards at nuclear power plants and fuel ning. Upon consleersuon of the com.
cycle faccatsas has for saany years p*
Pwme 3/23rre snents recetved on the proposed sented a rerulatory problem to the Ntl*
fre u.e s/s/7s amenenenta published on May to clear Rerulatory Cammamatam In the UCINSED NUCLEAR MATERIALS AND 1377. and on the pertinent sections of absence of overriding 7tdarnt authority.
FACILITIES the proposee amendments published the law governtas the 11aWitty of a prl*
orn July S.1977. and upon conander.
wate guard is State law. '! hat is. If a prt*
suon of other factere involved. the vate guard wttne en duty k1Ded or Lisensee $efoggerds Contingency Nuclear Regulatory Coanales:en has wounded someoos. the kIIIang or wound.
y adopted the proposed amendmenta a
with certain modifications as set forth Ing would be JustRSahle er not depend 28 AGENCY: Nuclear Regulatory Com.
below. (The pertinent sections of the upon tae law of the state in which it oo*
maaston.
curved. Erpertence with lleensees and >
Proposed rule pub!!shed on July S.
enarch has shown that annandermale AC210N: Final rule.
W. am parmeraphs 73.38(ex3xtu).
4 73,38(dA 13.4S(bH3X111).
73.48(h).
vartauon in Stata law estets on the ques.
SUMMARY
- The Nuclear Resuistory 73.5&(bx 3 xtill and 13.88(h).)
taan n! Just15able hamletria Stowever. 2n Ca== mon is assendmg its regula.
the narrow content of private ruards tions to require that Doensees authe-81gntittant differences from the oro.
doing their job on private property. there rised to operate a nuclear remeter posed asaandaients pubilahed for ene.
j are three major aspects of Justtaable (other than certaan research and test taent on May it.1977. are: (1) Ucens.
homicide trat the Cammtadaa thinks are reactores and those authortsed to pos-see wit! be required to submit for NRC I
untrenally acceptable in this country and sees strategic Quanuties of plutoruum.
approval au categottes of trLforecation that can. eccortilngly, be embodied in a uranium.233. or uranium.235 develop In a safeguards contingency plan (as rule of general applicaDon. He fLrst is and implement acceptable plans for act forth la Appendts C to 10 CFR that the guard has no duty to retreat responding to thresta, thetta. and in.
Part 73) esorpt the implemanung h from a anow of force. er from a altunuon dustrial sabotage of Ucensed nuclear cedures; the proposed rule recuand that could lead to use of force. *2tla pria.
materials and factiltles.
that implement *ng Procedure; also be ciple is embodied in the response rule in The plans will provide a structured, subject to NRC approval as part of Ihe the requirement that the guard inter.
orderly, and tianely response to enfe' lleensma process: 12 the observation poos himself betweest the adessaary and guards contingencies and wt!! be as that a goal of contingency plannans is the matertal acosas areas or vital arena fasortant segment of NRC's consan*
for 11censee responses to be compeuble j
subject to attacL A second prtacaple as sency planning programa, rJamaav with Federna responses has been re.
that guards may generally meet force safeguards contingersey plans wtti moved: (31 the requirement eeneernes with form. 'this prtnciple la stated in the rggult in organising U6eriste a safe.
"a statement of the perceived danger" restonse rule. Finally. there is general guards resourrea in such a a'ay that. in has been Clattfled by statma that suert acceptance of the use of deadly force the unlikely event of a safeguards coa-a statement promulgated by the Com.
when there is a remarmahlt belief it is tingency, the responding participartts mission may be used by the Itcensee; (4) necessary in self. defense er defense of wtll be Identt!!ed, their several respon.
cross. reference to the licensee's i
others. It is acade clear in the rule that sibiltues specified. and their responsen physical security plan is esplicitly per.
Ucenseea guards are expected to stand coordmated, mitted for topics that are adequately 4
and tan their right of self defense covered in that plara: (S) the require.
against adversaries. De Commanton be.
DTECTIVE DATE: June 8.1978.
ment for penodic artils or testa of the
!! eves that these thrve principles, takan Nots-The Nucleer steeutsterr Comaras.
Iloenase e safeguards contingency plan together, conatttute an adequate, pree, sien has auteutted trus rule to the Casas.
has been mootfled to relieve the licens.
i i
Mcal, and puhucly acceptable steponse W
I et from responsibility for testing the
,',,,,,,,','t he Feder as amended. 44 UJ.C. 3312. The ease on.
rTeponse of enuties riot under the 11 Tule.
J conseea control: m paragraphs Whether the Commtantaq ghould to emen the recorting reeutrernent of the rule 73.50(g) and 73.55th) have been te.
I further in ita respDnse rule is a matter becomes effective. unJens advises to the ton.
Yle#d to $nflude an esp 11Clt rPQutre.
currently under consideration. *!be Gen.
trarr. trietudes a es ear penes which that snent far atteguards contmgency plans eral Accounting Of!!ce. In a cJanstSed re.
'tatute nuove toe Cometreuer oemeras port on security at fuel.cycJe fac1 Lit es.
revite(44 UA.C.3312(cm3R in accordance with the proposed rule pubitahed on July 5.1971; and 47) the has recommended that the Com=taatan FOR PURTHER INFORMATION requirernenta on " Development and seet Federal and/or 8 tate legislative au.
CONTACT:
Maintenance of the Plan" have been thority, *sa appropriata." to allow guards 4
to use firearms to prvvent the theft of Thomas F. Carter. Jr. Chief. Con
- Part 7 pl aps p special nuclear snaterlat if such actaan tingency Planning Branch. U.S. Nu*
places in the test of the rule"ertains to is the insnimum necessary to nocom*
clest Regulatory Commission. Wash
- The foDowing discussion p pilah the taak. De Cammu taa is eval
- lngton. D.C. 20585 telephone 301*
427-4191.
Items (1) throurft (7) above
]
133 se,eral commenters euggested I curre poU eeds and a
to SUPPLEMENTARY INFORMATION:
that the fifth category of trkformation legal authorth An hamWd d!sest On May 19.1977, the Nuclear Reruta.
(Procedures) contained in a safeguards of the report has been publiabed by GAO tory Commtaanon (NRC) pubitshed in contingency plan na set forth in Ap.
a n.
ay 2. N.
the FantaAL Rosserna (43 FR 23744) pendiz C of 10 CFR Part 73 should To e the 6 tory intent can.
proposed amendments to 10 CFR not be a part of a licensee's approved sidering the abott principles, the cond1 Parts 50.10. and 73 of its regulations.
. safeguards contmgency plan because Upna ter the use of desdty force were IntmeW' persons were invited to of the lace of flettblitty maaoetated reworded to emphaatse Istat the guard submit arttten commenta and sugges.
with recutring b'RC approval or con.
tions m connection with the proposed currence of dar to day operations.
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OUESTION 2A.
To what extent do security forces at NRC-licensed facilities rely upon the potential use of firearms or deadly force to prevent terrorism or sabotage?
ANSWER.
4 The potential use of firearms or deadly force is an integral co=ponent of the overall physical protection system at NRC-t l
licensed facilities that possess a formula quantity of strategic special nuclear material (weapons-useable material) or where a co==ercial nuclear power reactor is operated.
An ar=ed security force, well-trained and equipped, can deter and prevent acts of terrorism, sabotage, and theft of special nuclear material.
A clear-cut authority on the use of deadly force would greatly assist an armed guard at an NRC-licensed site in making the difficult decisions concerning use of firearms that may have to be made in the execution of official duties.
I However, guards at NRC-licensed facilities that possess formula l
l quantities of strategic special nuclear material are handicapped because they do not have the protection of Federal law in using deadly force.
They are also handicapped by a lack of "cc=parability" between NRC and DOE.
" Comparability" is where SSNM is protected in a comparable manner whether located in the NRC-licensed or Department of Energy (DOE) license-exempt sector.
The intent of comparability is to prevent differing application l
of physical protection that may make the material located in either sector more vulnerable to theft.
Security force members
OUESTION 2A (Cont.)
-2 at sites operated by DOE have a clear-cut authority for use of deadly force under section 161 k.
of the Atomic Energy Act of 1954 and DOE regulations (at 10 C.F.R. Part 1047).
Members of the security force at NRC-licensed facilities that possess SSNM have no such Federal authority and are subject to State laws.
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OUESTION 2B.
Under which circumstances is the use of deadly force contemplated?
ANSWER.
The NRC staff has provided non-binding guidance to licensees on the conditions it believes would warrant use of deadly force.
The guidance provides that the use of deadly force is necessary to counter an immediate threat of death or severe bodily injury to a member of the security force, to others in the facility, or to members of the public.
However, the decision to use deadly force is left to the individual guard.
In addition, a number of generic conditions have been identified by the NRC staff under which use of deadly force may be warranted:
- 1. In defending a nuclear facility or transport against a determined violent assault; 2.
In interrupting visibly armed intruders who have covertly penetrated a protected area and are attempting 2
to break into areas containing SSNM, or vital areas ignoring challenges and warnings; 3.
In intercepting 3 ;ttruders, who may or may - not have firearms, but who are placing explosives near a vault,2 The term " vital area" is defined in 10 C.F.R. Part 73.
2The term " vault" is defined in 10 C.F.R. Part 73.
1 OUESTION 2B (Cont.)
-2 a building containing SSNM or vital areas,- if they ignore warnings to stop;
- 4. In intercepting visible armed intruders who enter into the protected area, ignoring challenges and warnings; 5.
In intercepting visibly armed adversaries who stop or j
attempt to stop a vehicle transporting SSNM, ignoring H
challenges and warnings.
If the proposed amendment to section 161 k. were enacted,'this guidance would be brought into conformity with the DOE regulations in 10 C.F.R. Part 1047.
Most significantly, the amended section 161 k. would establish Federal law as the basis for instruction of guards on the use of firearms at facilities with SSNM, and the Federal law would preempt State law on the subject.
This means that there would be a uniform standard.on use of deadly force by guards at such facilities, and guards would not be caught in conflicts between Federal guidance and liability under State law.
1:_, _ _ - -. - -, - _
OUESTION 3.
Does the NRC believe that the authority under section 205 should be applied to NRC-licensed facilities only where strategic special nuclear materials are present or should this authority also be provided for commercial nuclear power plants and other specified facilities?
ANSWER.
The Commission has not developed a position on the question of whether the authority under section 205 should be extended to facilities other than those that possess SSNM.
The original intent of the legislation proposed by NRC related only to facilities that possess SSNM.
NRC was primarily concerned with authorization for hot pursuit of intruders by security force members at NRC-licensed facilities possessing a formula quantity of SSNM.
This would allow an armed guard to pursue an individual who has apparently committed an act of theft of SSNM.
The physical protection scheme at power reactor sites focusses primarily on protection against radiological sabotage rather than theft because of the type of material present at the site.
- Thus, need for legislative clarification has not been thought to be as pressing for nuclear power reactors as at sites possessing unencapsulated SSNM.
1 OUESTION 4.
For which classes of licensees is this authority necessary to provide adequate protection to the public health and safety or to the common defense and security?
ANSWER.
l The NRC believes that adequate protection to the public health and safety or to the common defense and security is currently being provided at NRC-licensed sites, but that there is a 1
potential for an unusual threat that could only be countered successfully by the use of firearms by facility guards.
Explicit i
authorization for the use of firearms under section 161 k.
is i
necessary to establish a uniform set of conditions under which armed security force members at NRC-licensed facilities may operate in the performance of their official duties.
Armed security force members at NRC-licensed facilities that possess SSNM are faced with the task of providing a comparable level of protection for the material without the same protection j
of Federal law as is available to their counterparts at facilities operated by DOE.
OUESTION 5.
To what extent do state laws prohibit guards at NRC licensed facilities, including nuclear power plants, from carrying firearms while in the performance of their official duties?
Please be as specific as possible (a list of such states with such prohibitions would be helpful).
ANSWER.
No State in which a nuclear facility requiring armed guards under NRC rules is located prohibits guards at NRC-licensed facilities from carrying firearms in the performance of their duties.
However, States have a variety of licensing and qualification laws regarding private guards and their arming.
And, as noted in the attachment to the answer to question 1, there are differences among the states in the legally justifiable use of deadly force.
i
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l QUESTION 6.
To what extent would the authority provided under section 205 affect state laws regarding the use of firearms at NRC-licensed facilities?
l ANSWER.
The proposed amendment of section 161 k.,
and implementing l
regulations promulgated under sections 161 b.
and 161 1. of the Act, would establish a basis in Federal law for the arming of guards and the delineation of their duties, including the use of deadly force, in furtherance of the common defense and security of the United States.
State laws would be preempted.
l In the context of nuclear power reactors, it must be noted that section 161 k.
is specifically directed at the protection of the common defense and security of the United States.
Because the physical protection of nuclear power reactors is based upon protecting public health and safety from the consequences of radiological sabotage, and not on common defense and security concerns, section 161 k. as currently written would not provide a Federal law for the arming of guards at nuclear power reactors.
This would also be true if the section were amended as provided in section 205.
If it is the intent of Congress to extend the scope of section 161 k.
to nuclear power reactors, the statute 1
will have to be amended to include consideration of public health and safety as an added basis for arming guards.
f i.
OUESTION 7.
To what extent has the NRC consulted with affected i
states regarding any possible effects upon State l
laws?
j ANSWER.
Although NRC has not had any direct contact with affected States regarding any possible effects of the proposed amendment on State laws, it has, in the past, performed analyses of State laws for those States where NRC-licensed facilities that possess a formula quantity of SSNM are located.
In addition, NRC maintains an open dialogue with its licensees in order to, among.other things, identify issues or problems associated with the spectrum of Federal and State laws and requirements to which the licensee is subject.
Regulations that NRC would promulgate under the amended section 161 k. would be issued only after opportunity for public comment by interested persons, including States.
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