employees in the protection of DOE nuclear facilities. As a result of the March opinions, on June 10, 1986, LLNL instructed its Security Department to fully implement 10 CFR 1047, Limited Arrest Authority and Use Of Force By Protective Force Personnel. In implementing this order, LLNL required their guards to sign a document entitled "LLNL Policy on the Use of Firearms and Deadly Force." This policy statement described the circumstances under which deadly force could be used.

In our review of 10 CFR 1047, we noted it required that a warning, e.g. an order to halt, be given if feasible before a shot is fired. The LLNL policy statement signed by its guards did not include the requirement to issue a warning if feasible.

We also found that the LLNL policy statement signed by its guards did not address procedures to be followed in the event that offsite "hot pursuit" is required to prevent the theft of nuclear weapons, nuclear devices, or Category II quantities of special nuclear material. Further, we did not find the general subject of "hot pursuit" by contractor guards discussed in 10 CFR 1047. It is noted that the March 31, 1986, DOJ opinions stated that there were "serious reservations" regarding the authority of contractor guards to make warrantless arrests outside of the facility.

The SAN Chief Counsel stated that 10 CFR 1047 was not explicit on the issue of "hot pursuit" by contractor guards. The Chief Counsel said that "hot pursuit" had not been a major issue primarily because a number of the LLNL protective force personnel are also University of California peace officers. As such, they have the authority of California state police and can engage in offsite pursuit.

LLNL officials told us there were 209 uniformed guards and none were sworn California peace officers. There were, however, 14 other LLNL Safeguards and Security personnel, including 4 investigators, that were sworn California peace officers.

We believe that a Departmental policy should be developed on "hot pursuit" by contractor guards. This policy should cover the use of deadly force by contractor guards while in "hot pursuit." At LLNL this issue appears to be particularly important. For example, it is not clear to us whether the sworn California peace officers at LLNL in "hot pursuit" offsite would be expected to follow the DOE or state of California policy on the use of deadly force.

An attorney with headquarters DOE General Counsel said the Department of Justice opinions resolved any question regarding Federal jurisdiction over LLNL protective force personnel and

indicated that, if the state of California were to prosecute a guard, DOE would seek to move the case to Federal court. The attorney said the Department's General Counsel was "comfortable" that Federal law would prevail.

We believe, however, the issues discussed above need resolution. Recommendation

We recommend that the Manager of the San Francisco Operations Office assure that the LLNL policy statement signed by its guards, contain a statement that a warning be issued, if feasible, before a shot is fired, as required by 10 CFR 1047. The SAN Manager concurred and responded that a proposed modification has been made to include the verbal warning where feasible in the certification form signed by LLNL protective force personnel at the conclusion of their re-qualification training.

The Department's Deputy General Counsel for Programs commented that "it may be better to have the LLNL policy statement indicate that the guards that sign it have read, and have become familiar with, all of the provisions of 10 C.F.R. [section] 1047. It should be noted that the statutory authority of these individuals to carry arms and make arrests is a matter which must be carefully coordinated with both the Department of Justice and State of California."

We recommend that the Assistant Secretary for Defense Programs:

1. Establish a policy regarding "hot pursuit" by DOE contractor guards.

2. Investigate ways to remove any possible personal liability of LLNL security guards for following DOE policy.

The SAN Manager agreed that a "hot pursuit" policy was needed and that under the direction of the ASDP, a policy statement" regarding "hot pursuit" has been drafted. A final statement is pending concurrence by the Office of General Counsel, where it has been for some time awaiting resolution, according to the SAN Manager.

The Assistant Secretary for Defense Programs did not respond to the second recommendation. The SAN Manager responded that "While this recommendation is not directed to SAN we agree that it is desireable to remove personal civil liability for guards following DOE policy. We believe that removing potential

criminal liability may be more difficult. In this respect, DOJ is already committed to defending guards in criminal prosecutions for following DOE policy."

Annual LLNL Appraisal

The Annual LLNL appraisal criteria should be strengthened.

A SAN official agreed that criteria for the FY 1988 SAN Summary Annual Appraisal of LLNL appeared "soft" and thereby impaired the quality of the appraisal process. That is the criteria used for the appraisal was not stringent enough. The official stated that an effort would be made to address these problems and noted that the SAN appraisal, when coupled with the self assessment by LLNL, would strengthen the overall process. The self assessment by LLNL had not been completed as of August 1989 and was more than three months behind a schedule set by the SAN Manager in April 1989.

Staffing

AMDP had several unfilled critical positions.

AMDP had a staff of 81, including 19 positions funded from Atomic Energy Defense appropriations. In the SAN FY 1991 budget submission, SAN DP requested that an additional 19 positions in FY 1990 be funded through Atomic Energy Defense appropriations. The shortage of technical staff and vacancies in critical positions had impaired program and management oversight of several LLNL activities, including: some 60 percent of LLNL work for other project funds, four contracts and grants in the ICF Program that were transferred to SAN from Nevada, safety oversight of the LLNL ICF Program in concert with Secretary of Energy Notice 6, LLNL construction activity, and aspects of the LLNL Nuclear Explosive Safety Program.

G. GENERAL MANAGEMENT

INTRODUCTION

The SAN Manager oversees a broad range of general management activities, including programmatic, officewide support, legal, and contracting issues. Assisting the Manager are staff within the Office of the Manager, the Office of Chief Counsel, the Office of External Affairs, and divisions managed by five Assistant Managers.

Summarized below are the missions, authorities, organization, resources, M&O oversight, program support, and internal administration of the Office of the Manager, Office of Chief Counsel, and Office of External Affairs. Programmatic support functions are discussed in sections C through F.

MISSION AND FUNCTIONS

Mission

According to the mission and functions statement approved for the Office of the Manager October 5, 1987, the Office of the Manager is responsible for administering and managing DOE programs assigned to it by Headquarters. This includes carrying out research and development program/project management, business management, and M&O institutional management.

As stated in the SAN reorganization plan of January 1989, the Chief Counsel acts as legal advisor to the Manager and is responsible for matters of law and legal policy that arise in connection with the functions and programs SAN administered. Chief Counsel also acts as the legal advisor to the SAN and Nevada Operations Office Managers on intellectual property law and policy.

As stated in the October 1987 mission and function statement, the Office of External Affairs supports the Manager with a communications system designed primarily to interact with the news media and press services community and to service the information needs of intergovernmental units at the Federal, state, and local levels.

The mission and functions statements cited for each of these offices were the latest approved, according to DOE's Office of Administration and Human Resource Management.

The

Functions

Office of the Manager

Functional responsibilities outlined in the 1987 mission and function statement include:

--Managing basic and applied research, development, and demonstration in defense, energy research, magnetic fusion, and other nuclear related technologies.

--Managing SAN contractor environment, safety, and quality assurance programs and assuring the health and safety of employees and the public, the integrity of the environment, continued operability of facilities and equipment, and accomplishment of the overall DOE mission.

--Managing the operation of LLNL, LBL, SLAC, Stanford
Synchrotron Radiation Laboratory, ETEC, and three
biomedical laboratories.

--Carrying out responsibilities as the Head of Contracting
Activity.

--Managing all matters of law and legal policy concerning
SAN programs, projects, and functional responsibilities.
--Managing the SAN workforce.

--Serving as the EEO officer.

The SAN Manager added that all SAN duties and functions are functions of the Manager that have been delegated to various parts of the organization.

Office of Chief Counsel

Functional responsibilities listed in the reorganization plan include:

--Providing legal advice on all matters.

--Reviewing and approving for legal basis all claims by or against the Government and by or against cost-type contractors. (According to the Chief Counsel, review and approval of cost-type contractor claims may include subcontractor claims.)