Nuclear Security: DOE Needs to Address Protective Forces' Personnel System Issues
Released: 2010-01-29T00:00:00

Letter

Scope and Methodology

To obtain information on DOE’s contractor protective forces, we visited three of the sites with enduring Category I SNM missions—Pantex, the Savannah River Site, and Los Alamos National Laboratory—and met with protective force contractors, federal site office officials, and protective force union representatives at these sites. We selected these sites because each represented one of the three different types of protective force contracts currently in place. In addition, we distributed a data collection instrument to protective force contractors and federal site office officials at each of these sites and at the other three sites with enduring Category I SNM missions—Y-12, the Nevada Test Site, and the Idaho National Laboratory. From this instrument, we received site information about the protective forces, the status of TRF and DBT implementations, views on DOE options for managing the protective forces, and the reliability of site data. We conducted interviews and reviewed documents with NNSA and DOE’s offices of Environmental Management (EM); Nuclear Energy (NE); Science. We also met with several organizations within DOE’s Office of Health, Safety and Security (HSS), including the Office of Policy; the Office of Independent Oversight, which regularly performs inspections at Category I SNM sites; and the National Training Center, in Albuquerque, New Mexico, which is responsible for developing protective force training curricula and certifying site protective force training instructors and programs. To obtain comparative information on OST and its federal agents, we reviewed documents and met with officials from OST headquarters in Albuquerque, New Mexico. All data collected to describe contractor protective forces and OST federal agents were current as of September 30, 2008. To identify and assess options for the more uniform protective force management through federalization, we met with the NNSA Service Center in Albuquerque, New Mexico, and the Office of Personnel Management (OPM) on cost and job classification of protective forces. We developed criteria for options for more uniform management by reviewing past and ongoing DOE protective force and federal agent studies that HSS, NNSA, and OST provided. We also reviewed documents and met with officials from the National Council of Security Police, which is a coalition of unions that represent many of the protective forces at DOE’s Category I SNM sites.

We conducted our work from April 2008 to January 2010 in accordance with generally accepted government auditing standards, which require us to plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Background

DOE’s HSS, which is the department’s central security organization, is responsible for developing the department’s security policies and overseeing their implementation. Specifically, HSS’s Office of Policy develops and promulgates orders and policies such as the DBT policy, as well as manuals such as Manual 470.4-3A, Contractor Protective Forces, which details protective force’s duties and requirements. Other DOE organizations with diverse program missions—EM, NE, and NNSA—are responsible for the six DOE sites in our review with enduring Category I SNM missions. In accordance with DOE policy, EM, NE, and NNSA must ensure that each of their sites has a safeguards and security program with the necessary protections to protect security interests against malevolent acts such as theft, diversion, sabotage, modification, compromise, or unauthorized access to nuclear weapons, nuclear weapons components, special nuclear material, or classified information. Each of these DOE organizations has site offices staffed by federal employees located at or near each site to oversee day-to-day operations, including security.

The management and operations (M&O) contractors that manage the six sites we reviewed must develop effective programs to address DOE security requirements. In particular, each site with Category I SNM must prepare a Site Safeguards and Security Plan, which is a classified document that identifies known vulnerabilities, risks, and protection strategies for the site. The site’s protection measures are developed in response to site-specific vulnerability assessments and become the basis for executing and reviewing protection programs. Table 1 highlights some of the site differences in mission, topography, and size that may dictate the site-specific protection measures, including the protective forces’ size and equipment.

Protective forces are one of the key elements in DOE sites’ layered “defense-in-depth” protective systems. Specific elements vary from site to site but almost always include, in addition to protective forces, a variety of integrated alarms and sensors capable of detecting intruders; physical barriers, such as fences and antivehicle barriers; numerous access control points, such as turnstiles, badge readers, vehicle inspection stations, radiation detectors, and metal detectors; operational security procedures, such as the “two-person” rule—which is designed to prevent only one person from having access to SNM ; and hardened facilities and storage vaults to protect SNM from unauthorized access.

Increasing security at DOE sites since the terrorist attacks of September 11, 2001, has been costly and challenging. The complexwide funding for protective forces and physical security systems rose almost 60 percent (in constant dollars) from fiscal years 2001 through 2008, to $862 million. Protective forces—the single most costly element of DOE security, as well as one of the most important —have been a major focus of DOE security efforts. The need to increase security at DOE sites as rapidly as possible following the 2001 attacks meant that DOE protective forces worked large amounts of overtime for an extended period. DOE’s Inspector General and Office of Independent Oversight, as well as GAO, reported on the potential for extended overtime to increase fatigue and reduce readiness, and training opportunities for protective forces. Since then, DOE has sought to control protective force costs by increasing the use of security technology and advanced weaponry and by consolidating material into fewer and better protected locations.

Since September 11, 2001, DOE security policies, including the DBT, have been under almost constant examination and have undergone considerable change. For example, DOE issued new DBTs in 2003, 2004, and 2005, and, most recently, in November 2008. In its latest iteration, the DBT was renamed the Graded Security Protection (GSP) policy. The GSP is conceptually identical to DOE’s previous DBTs. However, compared with the 2005 DBT, the GSP identifies a generally smaller and less capable terrorist adversary force for DOE sites with Category I SNM.

DOE has also sought to increase the tactical effectiveness of protective force performance. Specifically, according to a 2004 classified DOE review, the then-current organization and tactics of DOE protective forces needed improvement to deal with possible terrorist threats. The review found that, historically, DOE protective forces had been more concerned with a broad range of industrial security and order-keeping functions than with preparing to conduct a defensive battle against a paramilitary attacker, as described in DOE’s previous DBTs and GSP. To address this situation, the review recommended shifting to an aggressive militarylike, small-unit, tactical defense posture, which included enhanced tactical training standards to allow protective forces to move, shoot, and communicate effectively as a unit in a combat environment. It also recommended more frequent, realistic, and rigorous force-on-force performance testing and training for the department’s protective forces.

On the basis of this review, DOE has sought to transform DOE’s protective forces who safeguard special nuclear material into an “elite force”—a TRF—with training and capabilities similar to military units. To create TRFs at Category I SNM sites, in 2005 DOE’s policy for protective forces clarified which positions required more demanding physical fitness and firearms qualification standards, increased tactical training, and reorganized protective forces into tactically cohesive units.

Although DOE and NNSA considered federalizing the contractor protective forces to better support the TRF, the department’s reviews of this issue predate its post September 11, 2001, concerns. Since the early 1990s, the department has intermittently considered federalization because of variety of security challenges, often involving actual or potential strikes by contractor protective forces: A 1992 DOE review concluded there was no clear evidence that federalization of protective forces would significantly save costs or improve security. DOE reviewed the issue of federalization in response to a 1990 GAO report that examined a protective force strike at Los Alamos National Laboratory in 1989.

A 1997 DOE report raised concerns about the potential deterioration of an aging protective force’s physical and combat capabilities; the increasing difficulties in meeting the sudden demand for additional personnel in the event of a strike; and cost pressures, such as more overtime pay after the department had downsized the protective forces. The report considered federalization as a solution but recommended other options using existing contractor protective forces.

A 2004 DOE study group, examining ways to strengthen DOE’s security posture after September 11, 2001, recommended federalization to better support tactical forces and to promote uniform, high-quality security across sites, but the department did not implement the recommendation.

Two 2008 NNSA studies, which followed the 2007 strike at the Pantex Plant, compared contractor and federalized options for improving protective forces, but these studies did not make any firm recommendations.

In 2009, partly in response to a union coalition calling for federalization, NNSA and DOE’s HSS started protective force initiatives to address some of the goals that federalization was meant to accomplish, such as improving efficiency and effectiveness.

Protective Forces Are Not Uniformly Managed, Organized, Staffed, Trained, Equipped, or Compensated

Contractor protective forces—including 2,339 unionized officers and their 376 nonunionized supervisors—are not uniformly managed, organized, staffed, trained, equipped, or compensated across the six DOE sites. These differences occur because protective forces operate under separate contracts and collective bargaining agreements at each site and because of DOE’s long-standing contracting approach of defining desired outcomes instead of detailed, prescriptive guidance on how to achieve those outcomes. As we have previously reported, DOE’s contract model may allow security to be closely tailored to site- and mission-specific needs.

Management and Organization Vary by Contract

As of September 30, 2008, protective forces at the six sites we reviewed operated under the following three separate types of contracts: Direct contract with DOE. At Y-12, Nevada Test Site (NTS), and Savannah River Site (SRS), NNSA and DOE contract directly with private firms to provide protective forces. These contracts are separate from NNSA’s and DOE’s contracts with the site M&O contractors. Protective force managers report to officials from federal site offices. To coordinate site operations and protective force operations, managers from the M&O contractors meet regularly to discuss issues with managers from the protective force and site office.

Within the M&O contract. For two sites, Pantex Plant (PX) and Idaho National Laboratory (INL), the M&O contractors provide the protective forces. The M&O contractor directly manages the protective forces, and DOE’s or NNSA’s site office oversees the protective force operations as part of the overall M&O contract.

Subcontract to the M&O contractor: At Los Alamos National Laboratory (LANL), the M&O contractor subcontracts the protective force operations. The protective force manager reports to and is overseen by the M&O contractor. Since NNSA has no direct contractual relationship with the protective force manager, NNSA site office managers coordinate oversight direction through the M&O contractor.

Protective force contractors at the six DOE sites have a management and support structure that includes training and physical fitness, human relations, legal and contract services, and procurement. Each protective force also has uniformed supervisors who are not part of the protective forces’ collective bargaining agreements. The duties, responsibilities, and ranks of these supervisors are generally site specific and not detailed in DOE’s protective force policies.

Protective Forces Differ in Number and Composition

According to DOE’s 2008 policy in Manual 470.4-3A, Contractor Protective Force, protective forces are composed of unarmed and armed positions. Security Officers (SO) are responsible for certain unarmed security duties, such as checking for valid security badges at entrances and escorting visitors. Security Police Officers (SPO), who are armed, are divided into three main categories: SPO-I: Primary responsibility is protecting fixed posts during combat.

SPO-II: Primary responsibility is mobile combat to prevent terrorists from reaching their target but can also be assigned to fixed posts.

SPO-III: Primary responsibilities are mobile combat and special response skills, such as those needed to recapture SNM (on site) and recover SNM (off site) if terrorists succeed in acquiring it. SPO-IIIs are usually organized into special response teams.

As shown in table 2, the number of personnel and composition of protective forces vary considerably across sites. It should be noted that three sites—INL, LANL, and NTS—had few or no SPO-Is as of September 30, 2008. At that time, not all sites had incorporated this position into their collective bargaining agreements. In the interim, some SPO-IIs were performing the SPO-I-type duties at these sites.

Training and Equipment Vary

DOE policy mandates certain protective force training but allows sites some flexibility in its implementation. For example, DOE Manual 470.4-3A requires newly hired protective forces to complete the Basic Security Police Officer Training course that the sites tailor to meet their specific needs. The site-specific courses range in length from 9 to 16 weeks. Other required training includes annual refresher training in a wide variety of topics; tactical exercises, including force-on-force exercises; physical fitness training; and firearms training. The content and frequency of this training varies by site and, to some extent, by type of protective forces, with SPO-IIIs generally receiving more training than other protective forces because of their special response mission. To ensure some degree of equivalency, DOE’s National Training Center assesses sites’ training plans and, while most sites perform their own training, the National Training Center certifies instructors.

Some training requirements are driven by the type of protective force equipment, such as firearms and vehicles, that are used at each site. The primary protective force weapon at most sites is the M4 rifle, a weapon that is widely used in the U.S. military. Other weapons, such as belt-fed machine guns, are generally versions of the M240 and M249 family, also widely used in the U.S. military. However, sites have variously adopted other equipment, including the following: three models of handguns with two different calibers of ammunition; four types of grenade launchers, although all use 40mm grenades; several types of precision rifles, capable of accurate long range fire, in three different calibers; and several different armored vehicles, but older vehicles are being replaced by a single type of vehicle across the six sites.

Pay and Benefits Vary

Pay varies for protective forces, based on the site and the category of protective forces. Table 3 shows that top pay, as negotiated in collective bargaining agreements at each site, ranged from nearly $19 per hour to over $26 per hour. SOs received the lowest hourly pay, and SPO-IIIs received the highest. Overtime pay, accrued in different ways at the sites, and other premium pay, such as additional pay for night shifts and holidays, may significantly increase protective force pay.

Table 4 shows the types of benefits by site. While all employers contributed to active protective force members’ medical, dental, and life insurance benefits, they differed in the amount of their contributions and in the retirement benefits they offered. In general, new hires were offered defined contribution plans, such as a 401(k) plan, that provides eventual retirement benefits that depend on the amount of contributions by the employer or employee, as appropriate, as well as the earnings and losses of the invested funds. At the time of our review, two sites offered new hires defined benefit plans that promised retirees a certain monthly payment at retirement. Two other sites had defined benefit plans that covered protective force members hired before a particular date but were not open to new hires. A coalition of unions has expressed its preference for defined benefit plans.

Tactical Response Force Implementation Varies and Has Raised Concerns about the Longevity of Protective Forces Careers

Sites are at different stages in the implementation of TRF requirements. However, TRF implementation, coupled with broader DOE efforts to limit postretirement and pension liabilities, has raised concerns with DOE security officials, protective force contractors, and protective force unions about the longevity of protective forces’ careers and the adequacy of their personnel systems.

TRF Implementation Varies

DOE has identified the following important TRF requirements for protective forces: Improved tactical skills, so that protective forces “move, shoot, and communicate” as a unit. To better facilitate tactical training to meet a sophisticated terrorist attack, TRF calls for the development and implementation of TRF training curricula as well as the creation of training relief elements or shifts to allow protective forces to participate in unit-level training.

Revised application of DOE’s offensive and defensive combatant standards for protective forces. DOE’s offensive combatant standard is more demanding than its defensive combatant standard. Nevertheless, prior to TRF, SPO-IIs hired before 2000 were allowed to meet DOE’s less demanding defensive combatant standard but could retain their SPO-II designation and fill some offensive combatant positions. TRF policy eliminated this approach, known as “grandfathering,” and restricted protective force members who meet only defensive combatant standards to serve as SPO-Is. That is, SPO-IIs that did not meet offensive combatant standards would be moved into SPO-I positions.

Career longevity plans to assist with the shift to the new application of offensive and defensive combatant standards. TRF mandates that all newly hired protective forces meet DOE’s more demanding offensive combatant standard as SPO-IIs. Protective force members may advance to the SPO-III level, which requires qualifying at a higher level of firearms proficiency. However, under TRF policy, the forces who cannot maintain their current standards—perhaps as their years of service accumulate and they age—may “fall back” by applying for open protective force positions with less demanding standards. For example, protective forces may move from meeting offensive combatant standards to defensive combatant standards or unarmed SO positions, although they may lose pay with each “fall back.”

Table 5 summarizes the physical fitness, firearms and medical qualifications protective forces must pass for DOE’s combatant standards.

One site we visited had implemented most of TRF’s key elements. Since 2005, this site has constructed new training facilities, implemented a training cadre that allows unit-sized tactical training, increased the amount of tactical training its protective forces receive, and integrated protective force plans with other security elements and response plans.

As of September 30, 2008, three sites were still using an older job classification of SPO-II (that is, allowing a defensive combat standard, rather than the offensive combatant standard), which is not a TRF classification. In addition, while some sites have created unarmed security officer positions to provide fallback positions for protective forces that can no longer meet DOE’s defensive combat standard, there are relatively few unarmed positions (110—less than 5 percent—of the protective forces at the sites we reviewed), and some of these positions, according to a protective force contract official and a union representative, were eliminated for budgetary reasons.

We also found that TRF training was not uniform across the six sites: DOE’s National Training Center piloted a more tactically oriented basic training course (Tactical Response Force - 1) at one site in 2008, but according to a National Training Center official, this class will not replace its existing multiweek Basic Security Police Officer Training course for newly hired SPO-IIs until later in 2010.

All sites have increased the amount of tactical training for protective forces but have been separately developing courses and training facilities.

Some sites had purchased and deployed advanced weapons but had not adequately trained their protective forces to use these weapons and had not integrated these weapons into their response plans, according to DOE’s Inspector General and DOE’s Office of Independent Oversight. In 2007, DOE’s Inspector General reported that one site’s training program for the use of a weapon that was key to the site’s security strategy did not provide protective forces with the knowledge, skills, and abilities to perform assigned tasks. A follow-up inspection in 2008 found similar problems at several other sites.

According to a NNSA official, NNSA sites did not receive dedicated TRF training funds until fiscal year 2009. Also, according to NNSA’s fiscal year 2010 budget submission, NNSA does not expect its sites to complete TRF activities until the end of fiscal year 2011.

TRF Implementation Has Raised Concerns

Since its inception in 2005, TRF has raised concerns in DOE security organizations, among protective force contractors, and in protective force unions about the ability of protective forces—especially older individuals serving in protective forces—to continue meeting DOE’s weapons, physical fitness, and medical qualifications. As we reported in 2005, some site security officials recognized they will have to carefully craft transition plans for currently employed protective force officers who may not be able to meet the new standards required for an elite force, which is now known as TRF. Adding to these concerns are DOE’s broader efforts to manage its long-term postretirement and pension liabilities for its contractors, which could have a negative impact on retirement eligibility and benefits for protective forces. In 2006, DOE issued its Contractor Pension and Medical Benefits Policy (Notice 351.1), which was designed to limit DOE’s long-term pension and postretirement liabilities. A coalition of protective force unions stated that this policy moved them in the opposite direction from their desire for early and enhanced retirement benefits.

These concerns contributed to the 44-day protective force strike at the Pantex Plant in 2007. Initially the site designated all of its protective force positions as offensive positions, a move that could have disqualified a potentially sizable number of protective forces from duty. Under the collective bargaining agreement that was eventually negotiated in 2007, some protective forces are allowed to meet the less demanding defensive combat standards. DOE has also rescinded its 2006 Contractor Pension and Medical Benefits Policy. However, according to protective force union officials, tensions over TRF implementation and retirement benefits remain driving forces behind protective force unions’ drive to federalize.

With the Issuance of the Graded Security Protection Policy, Most Sites Ceased Efforts to Implement the 2005 Design Basis Threat

With the issuance of the new GSP policy in August 2008, most sites ceased 2005 DBT implementation efforts. However, unlike its practice with previous DBTs, DOE did not establish a deadline for GSP implementation. While sites study GSP requirements and develop implementation plans, the GSP directs that they continue to meet the requirements of the 2003 DBT. Under the 2003 DBT, most DOE sites are required to maintain denial protection strategies for Category I SNM. Under these strategies, DOE requires that adversaries be denied “hands-on” access to nuclear weapons and nuclear test devices at fixed sites, as well as all Category I SNM in transit. For other Category I SNM at fixed sites, DOE requires that adversaries be prevented from having enough time to complete malevolent acts. If adversaries gain access to Category I SNM, DOE requires that protective forces engage in recapturing the SNM on site or recovering the material if it leaves the site. As required by the Fiscal Year 2006 National Defense Authorization Act, DOE reported to Congress in 2007 that all its sites could meet the 2003 DBT.

To verify the information DOE reported, we examined whether the sites had approved Site Safeguards and Security Plans and whether they had undergone an Office of Independent Oversight Inspection to test those plans. We found that all sites (except for the one DOE site that had implemented the 2005 DBT) had approved Site Safeguards and Security plans for the 2003 DBT, and almost all had undergone inspections by the Office of Independent Oversight to test those plans. In most cases, protective forces performed effectively in these inspections. However, in a 2008 inspection, one site’s protective forces received a “needs improvement” rating—that is, it only partially met identified protection needs or provided questionable assurance that identified protection needs were met.

Office of Secure Transportation Federal Agents and Protective Forces Differ Significantly in Several Respects

Although they are both responsible for protecting SNM, OST federal agents substantially differ from site protective forces in terms of numbers, organization, management, pay, benefits, mission, and training: OST forces totaled 363 as of September 30, 2008, or less than one-seventh the total number of protective forces members at DOE sites with enduring Category I missions.

OST forces are geographically dispersed, but unlike protective forces, management is centralized. OST operations are organized into three commands, which are collocated at two DOE sites and a Department of Defense military base. These commands report to a central command in Albuquerque, New Mexico, which is under a single organization, NNSA. In contrast, the protective forces at six sites have decentralized management and are overseen by one of three DOE organizations.

Federal managers directly operate the OST organization and supervise federal agents.

Unlike protective forces, OST federal agents cannot collectively bargain and are covered by a single pay system. Effective in March 2008, the NNSA’s Pay Band Demonstration is a pay system for most NNSA federal employees—including OST federal agents. Table 6 shows the differences between the protective forces’ many negotiated pay rates and the nonsupervisory federal agents’ single pay band, which is linked to federal pay grades that are established governmentwide.

In addition, while OST’s pay system is designed for more flexible pay, protective forces’ pay rules generally do not provide for any variation in a position’s pay rate after a few years of service. Specifically, OST agents’ pay rates can vary more when they are hired and in later years because the NNSA pay system is designed to give OST managers more flexibility to offer exceptional candidates higher entry salaries and to provide faster or slower annual pay progression, depending on individual performance. In contrast, fixed pay rules allow a contracted SPO to start at the top pay rate or to reach or closely approximate it after only about 1 to 3 years of service. However, as table 6 shows, both protective forces and federal agents receive significantly higher pay for overtime hours.

Concerning benefits, OST federal agents generally receive those that are broadly available to other federal employees, such as through the Federal Employee Health Benefit program and the Federal Employee Retirement System (FERS), which has a defined benefit component and a defined contribution component. In contrast, at each site, protective force unions negotiate for benefits such as medical insurance and retirement plans, and new hires in protective forces generally do not receive defined benefits for retirement. In addition, in 1998, Congress made OST federal agents eligible to retire earlier (at age 50 after 20 years of service) with a higher monthly retirement annuity (defined benefit) than is typical for other federal employees. This early retirement provision contrasts with the provisions for the two defined benefit plans open to new protective force hires as of September 2008, which provides for retirement with more years served or at older ages.

OST federal agents’ mobile mission also differs significantly from that of protective forces that guard fixed sites. OST agents operate convoys of special tractor trailers and special escort vehicles to transport Category I SNM. These agents travel on U.S. highways that cross multiple federal, state, tribal, and local law enforcement jurisdictions. They also travel as many as 15 days each month. Agents may also provide security for weapons components that are flown on OST’s small fleet of aircraft. In contrast to the public setting of agents’ work, protective forces that guard Category I SNM at fixed sites typically have elaborate physical defenses and tightly restricted and monitored public access.

Finally, the training for OST federal agents and protective forces differs. Although both OST and protective force contractors must comply with DOE orders and regulations when developing and executing training, OST agents undergo longer, more frequent, and more diverse training than do most protective forces. For example, newly hired OST trainees undergo longer basic training, lasting 21 weeks at OST’s academy in Fort Chaffee, Arkansas. To operate OST’s fleet of vehicles, federal agents must also complete the requirements for a commercial driver’s license. In addition, all agents must meet DOE’s offensive combatant standard throughout their careers. Overall, OST officials estimate that OST federal agents spend about a third of their time in training, which, according to an NNSA official, is much more frequent than most contractor protective forces. Much of the training is tactically oriented, and OST convoy elements are organized into tactical units.

Protective Forces and Office of Secure Transportation Federal Agents Do Not Routinely Use Their Federal Law Enforcement Authority to Make Arrests

In the performance of their official duties, both protective forces and OST federal agents have limited arrest authority for a variety of misdemeanors and felonies, though neither routinely exercises this arrest authority. Both protective forces and OST federal agents are also authorized to use deadly force to protect SNM and may pursue intruders in order to prevent their escape and to arrest those they suspect have committed certain misdemeanors or felonies or have obtained unauthorized control of SNM. DOE’s Federal Protective Force manual (DOE M 470.4-8) and DOE’s Contractor Protective Force manual (DOE 470.4-3A) set guidelines and direct DOE sites to develop policies for using deadly force and for fresh pursuit, which involves pursuing suspected criminals who flee across jurisdictional boundaries, such as leaving the property of a DOE site. These actions include developing memorandums of understanding that establish, among other things, fresh pursuit guidelines with other law enforcement agencies.

DOE protective forces and OST federal agents have limited authority to make arrests for specific misdemeanors and felonies, such as trespassing on, or the theft or destruction of, federal property. Other offenses against government property subject to arrest include sabotage, civil disorder, conspiracy, and the communication of or tampering with restricted data. For the covered misdemeanors and felonies, protective forces and OST federal agents have authority to arrest if they observe the offenses while they are performing their official duties; for the covered felonies, they may also make arrests if they have reasonable grounds to believe that the person has committed a felony. If other federal law enforcement agencies, such as the Federal Bureau of Investigation (FBI), are involved in the apprehension of suspected criminals, even on DOE property, protective forces and OST federal agents must relinquish arresting authority to the other federal agencies. While both protective forces and OST federal agents receive initial and annual refresher training in law enforcement authorities and duties, we found that protective forces at the six sites last made an unassisted arrest using their federal authority more than 25 years ago. The protective forces at Pantex arrested nine individuals, six in 1981 and three in 1983, for trespassing on site property. In both instances, the offenders were convicted and sentenced to a federal detention facility.

According to OST officials, federal agents do not routinely make arrests because they have not encountered individuals attempting to steal SNM from their shipments, which is the focus of their legal concerns. Protective forces do not routinely use their federal authority to make arrests for several reasons, in addition to limited authority. First, one contractor site official told us, federal courts, which have jurisdiction for all arrests made by protective forces using their federal authority, are reluctant to pursue what may be considered minor cases associated with a DOE site. Instead, this official said, the site had more success prosecuting crimes in state and local courts. In these cases, arrests are made by local and state law enforcement agencies. Second, DOE security officials told us that sites may be concerned about the legal liability of using contractor employees to make arrests and potential lawsuits that could ensue. Finally, both DOE and site contractor officials told us that routine law enforcement duties may distract protective forces from performing their primary duty to protect Category I SNM.

Rather than make arrests when witnessing possible crimes, protective forces may gather basic facts, secure the crime scene, and notify management, which decides whether to refer the matter to local law enforcement agencies, DOE’s Inspector General, the U.S. Marshall, or the FBI for arresting and transporting suspects. However, we could not determine how often the forces take these actions because sites do not typically document detainments or have facilities in which to hold such detainees.

While protective forces and OST federal agents seldom use their federal arrest authority, protective forces have used other legal authorities to make arrests. For example, specially designated protective force officers at the Savannah River Site (SRS), are authorized under South Carolina law to make arrests and investigate crimes. The SRS protective force includes 26 Special State Constables (about 5 percent of SRS’s total protective force) who have state law enforcement jurisdiction on the 310- square-mile SRS complex, which spans three counties and includes publichighways. These officers wear special uniforms and drive specially marked vehicles. In addition, they must complete and maintain state law complete and maintain state law enforcement qualification requirements, in order to retain their state law enforcement qualification requirements, in order to retain their state law enforcement authority. This additional authority, according to SRS enforcement authority. This additional authority, according to SRS officials, allows the remaining protective force personnel to focus on the officials, allows the remaining protective force personnel to focus on the other aspects of the site’s nation other aspects of the site’s national security mission. al security mission. al security mission.

Either of the Two Principal Options DOE Has Considered Could Result in More Uniform Management of Protective Forces

To manage its protective forces more effectively and uniformly, DOE has considered two principal options—improving elements of the existing contractor system or creating a federal protective force. We identified five major criteria that DOE, protective force contractors, and union officials have used to assess the advantages and disadvantages of these options. Overall, in comparing these criteria against the two principal options, we found that neither contractor nor federal forces seem overwhelmingly superior, but each has offsetting advantages and disadvantages. Either option could result in effective and more uniform security if well-managed. However, we identified transitional problems with converting the current protective force to a federalized force. Furthermore, while DOE has sought to improve protective force management by reforming protective forces, this effort is still at an early stage and budgetary limitations may constrain some changes.

Both a Contractor Force and a Federalized Force Present Advantages and Disadvantages

Table 7 summarizes the five criteria that DOE, protective force contractors, and union officials have used to discuss whether to improve the existing contractor system or federalize protective forces, as well as associated issues or concerns.

Evaluating the two principal options against these criteria, we found that, for several reasons, either contractor or federal forces could result in effective and more uniform security if the forces are well-managed. First, both options—maintaining the current security force structure or federalizing the security force—have offsetting advantages and disadvantages, with neither option emerging as clearly superior. For example, one relative advantage of a contractor force is the perceived greater flexibility for hiring, disciplining, or terminating an employee; one relative disadvantage of a contractor force is that it can strike. In contrast, federalization could better allow protective forces to advance or laterally transfer to other DOE sites to meet protective force members’ needs or DOE’s need to resize particular forces.

Second, key disadvantages, such as potential strikes, do not preclude effective operations if the security force is well-managed. According to one protective force manager, a well-managed protective force is less likely to strike. In addition, a 2009 memo signed by the NNSA administrator stated that NNSA had demonstrated that it can effectively manage strikes through the use of replacement protective forces. With respect to federal protective forces, a 2004 department work group on protective force issues observed that even federal operations like OST had experienced difficult labor-management relations that had to be carefully managed in order to ensure effective performance.

Third, as can be seen in the following examples, distinctions between the two options, each of which could have many permutations, can be overstated by comparing worse- and best-case scenarios, when similar conditions might be realized under either option.

While federalization might improve effectiveness and efficiency by driving standardization, NNSA recently announced initiatives to increase standardization among contract protective forces to achieve some of the same benefits, including cost savings.

Federalization could potentially provide early and enhanced retirement benefits, which could help to ensure a young and vigorous workforce. However, such benefits might also be provided to contractor protective forces.

Although more centralized federal control might impede both protective forces’ support of a site’s operations and the coordination between contractors and federal managers, this concern presumes a scenario in which the department would choose a highly centralized organization, whereas it might delegate responsibility for day-to-day operations to its site managers.

Either option could be implemented with more or less costly features. For example, adding the early and enhanced retirement benefits would increase costs for either contractor or federal protective forces.

Reliably estimating the costs of protective force options proved difficult and precluded our detailed reporting on it for two broad reasons. First, since contractor and federal forces could each have many possible permutations, choosing any particular option to assess would be arbitrary. For example, a 2008 NNSA-sponsored study identified wide-ranging federalization options, such as federalizing all or some SPO positions at some or all facilities or reorganizing them under an existing or a new agency. Second, DOE will have to decide on the hypothetical options’ key cost factors before it can reasonably compare costs. For example, when asked about some key cost factors for federalization, an NNSA Service Center official said that a detailed workforce analysis would be needed to decide whether DOE would either continue to use the same number of SPOs with high amounts of scheduled overtime or hire a larger number of SPOs who would work fewer overtime hours. Also, the official said that until management directs a particular work schedule for federalized protective forces, there is no definitive answer to the applicable overtime rules, such as whether overtime begins after 8 hours in a day. The amount of overtime and the factors affecting it are crucial to a sound cost estimate because overtime pay can now account for up to about 50 percent of pay for worked hours.

Transition to a Federalized Security Workforce Creates Difficult Issues Either under Current Laws or with Special Provisions for Enhanced Retirement Benefits

If protective forces were to be federalized under existing law, the current forces might face a loss of pay or even their jobs. OPM told us that legislation would be required to provide these federalized protective forces with early and enhanced retirement benefits. However, provisions associated with these benefits could create hiring and retirement difficulties for current older members of the protective forces.

Federalization under Existing Laws May Not be Palatable to Current Protective Force Members and Their Unions

According to officials at OPM and NNSA’s Service Center, if contractor SPOs were federalized under existing law, they would likely be placed into the security guard (GS-0085) federal job series. Although a coalition of unions has sought federalization to allow members to have early and enhanced retirement benefits, which allows employees in certain federal jobs to retire at age 50 with 20 years of service, security guards under the GS-0085 job series are not eligible for these benefits. Under the applicable rules for federal security guards, transitioning protective forces would not become eligible to retire with immediate federal annuities until at least age 55, and only after accruing sufficient years of federal service. For example, transitioning protective forces could begin receiving a federal annuity at age 62 with 5 years of service or, with reduced benefits, at age 55 to 57 (depending on birth year) with 10 years of service.

In addition, transitioning force members may receive lower pay as federal employees, according to our analysis of two tentative federal pay levels for protective force positions at SPO levels of I, II, and III. As of September 30, 2008, contractors are generally paid higher top rates than the top rates for the applicable federal General Schedule (GS) pay grades. Only SPO- III positions at three sites and SPO-II positions at one site could have the ir top rates potentially matched by 2008 federal rates, but only under certain Also, to reach federal pay rates that better approximate the assumptions. contractor rates, transitioning contractor protective forces might have to wait many years. While most collective bargaining agreements allow protective forces to reach a position’s top pay rate after 3 years or fewer, federal guards could take much longer because the 10 steps within a GS pay grade have progressively longer periods of service between incremental increases. This step progression means reaching the top of a pay grade (step 10) could take up to 18 years.

Finally, if protective forces are federalized, OPM officials told us that current members would not be guaranteed a federal job. According to those officials, current members would have to compete for the new federal positions, and thus they risk not being hired. Nonveteran members are particularly at risk because competition for federal security guard positions is restricted to those with veterans’ preference, if they are available. According to NNSA Service Center officials, veterans groups would likely oppose any waiver to this hiring preference. Thus, if the protective forces were to be federalized, the department might lose some of the currently trained and experienced personnel.

Legislation Could Provide Federalized Forces with Early and Enhanced Retirement Benefits, but Providing These Benefits Could Pose Problems for Current Force Members

According to OPM officials, legislation would be required to provide federal protective forces with early and enhanced retirement because their positions do not fit the current definition of law enforcement officers that would trigger such a benefit. For the same reason, DOE had to pursue legislation to extend early and enhanced retirement for OST federal agents in 1998. OPM had determined that OST federal agents did not meet the definition for law enforcement officer that would have made them eligible for early and enhanced retirement benefits. Consequently, at DOE urging, Congress enacted legislation to give OST federal agents the special 20-year retirement provisions.

Although a coalition of unions has supported federalization to get early and enhanced retirement benefits, provisions associated with these benefits could create hiring and retirement difficulties for older force members. Older members might not be rehired because agencies are typically authorized to set a maximum age, often age 37, for entry into federal positions with early retirement. In addition, even if there were a waiver from the maximum age of hire, older protective forces members could not retire at age 50 because they would have had to work 20 years to meet the federal service requirement for “early” retirement benefits. These forces could retire earlier if they were granted credit for their prior years of service under DOE and NNSA contracts. However, OPM officials told us OPM would strongly oppose federal retirement benefits being granted for previous years of contractor service (retroactive benefits). According to these officials, these retroactive benefits would be without precedent and would violate the basic concept that service credit for retirement benefits is only available for eligible employment at the time it was performed. Moreover, retroactive benefits would create an unfunded liability for federal retirement funds. When the law changed to allow OST federal agents early retirement, these agents were already federal employees, and they received retroactive enhanced credit for service; DOE paid the extra liability (approximately $18 million over 4 years).

DOE Seeks to Address Protective Forces Issues by Reforming Contractor Forces, but Some Changes May Be Constrained by Budgetary Limitations, and Progress Has Been Limited to Date

In a joint January 2009 memorandum, the NNSA Administrator and DOE’s Chief Health Safety and Security (HSS) Officer rejected the federalization of protective forces as an option and supported the continued use of contracted protective forces—but with improvements. They concluded that, among other things, the transition to a federal force would be costly and would be likely to provide little, if any, increase in security effectiveness. However, these officials recognized that the current contractor system could be improved by addressing some of the issues that federalization might have resolved. In particular, they announced the pursuit of an initiative to better standardize protective forces’ training and equipment. According to these officials, more standardization serves to increase effectiveness and cost efficiency as well as to better facilitate responses to potential work stoppages. In addition, in March 2009, the Chief HSS Officer commissioned a study group, which included DOE officials and protective force union representatives and had input from protective force contractors, to recommend ways to overcome the personnel system problems that might prevent protective force members from working to a normal retirement age, such as 60 to 65, and building reasonable retirement benefits.

Both of these initiatives might benefit the department and its programs. For example, the initiative to standardize protective forces has started focusing on the inefficiencies arising from having each contractor separately choose and procure security equipment and support services; one identified inefficiency is that smaller separate orders hinder contractors from negotiating better prices. In NNSA’s fiscal year 2010 budget request, NNSA predicted that standardizing procurement and security equipment, such as vehicles, weapons, and ammunition, could save NNSA, cumulatively, 20 percent of its costs for such equipment by 2013. With respect to the career and retirement initiative, the DOE study group reported, among other potential benefits, that improving career incentives for individuals to enter a protective force career and then remain in the DOE security community for a lifetime of service could help the department minimize the significant costs associated with hiring, vetting, and training protective force members.

NNSA has established a Security Commodity Team—composed of security and procurement professionals from NNSA, some DOE sites, and other DOE organizations—to focus first on procuring ammunition and identifying and testing other security equipment that can be used across sites. According to NNSA officials, NNSA established a common mechanism in December 2009 for sites to procure ammunition. Another effort will seek greater standardization of protective force operations across sites, in part by HHS or NNSA clarifying protective force policies when sites do not have the same understanding of these policies or implement them in different ways. To move toward more standardized operations and a more centrally managed protective force program, NNSA started a broad security review to identify possible improvements. As one result of this security review, according to NNSA officials in January 2010, NNSA has developed a draft standard for protective force operations, which is intended to clarify both policy expectations and a consistent security approach that is both effective and efficient.

For the personnel system initiative to enhance career longevity and retirement options, in June 2009, a DOE-chartered study group made 29 recommendations that were generally designed to enable members to reach a normal retirement age within the protective force, take another job within DOE, or transition to a non-DOE career. The study group identified 14 of its 29 career and retirement recommendations as involving low- or no-cost actions that could conceivably be implemented quickly. For example, some recommendations seek to ensure that protective force members are prepared for job requirements through expanding fitness and wellness programs and reviewing the appropriateness of training. Other recommendations call for reviews to find ways to maximize the number of armed and unarmed positions that SPOs can fill when they can no longer meet their current combatant requirements. Other recommendations focus on providing training and planning assistance for retirement and job transitions. (All 29 recommendations are described in app. I.)

The study group recognized that some of its personnel system recommendations may be difficult to implement largely because of budget constraints. The study group had worked with the assumption that DOE security budgets will remain essentially flat for the foreseeable future, and may actually decline in real dollars. Nevertheless, it identified 15 of its 29 career and retirement recommendations as challenging because they involve additional program costs, some of which are likely to be substantial, and may require changes to management structures and contracts. For example, to provide some income security when protective officer members must take a lower-paying position because of illness, injury, or age, one recommendation would include provisions in collective bargaining agreements to at least temporarily prevent or reduce drops in pay. Among the more challenging recommendations is a call to enhance retirement plans and to make them more equivalent and portable across sites—the types of changes that a coalition of unions had hoped federalization might provide.

Progress on the 29 recommendations has been limited to date. When senior department officials were briefed on the personnel system recommendations in late June 2009, they took them under consideration for further action but immediately approved one recommendation—to extend the life of the study group by forming a standing committee. They directed the standing committee to develop implementation strategies for actions that can be done in the near term and, for recommendations requiring further analysis, additional funding, or other significant actions, to serve as an advisory panel for senior department officials. According to a DOE official in early December 2009, NNSA and DOE were in varying stages of reviews to advance the other 28 recommendations. Later that month, NNSA achieved aspects of one recommendation about standardization, in part by formally standardizing protective force uniforms, as well as the uniforms’ cloth shields. In the Conference Report for the fiscal year 2010 National Defense Authorization Act, the conferees directed the Secretary of Energy and the Administrator of the National Nuclear Security Administration to develop a comprehensive DOE-wide plan to identify and implement the recommendations of the study group.

Conclusion

Protective forces are a key component of DOE’s efforts to secure its Category I SNM, particularly after the September 11, 2001, terrorism attacks. Since the attacks, DOE has made multiple changes to its security policies, including more rigorous requirements for its protective forces. However, in making these changes, DOE and its protective force contractors through their collective bargaining agreements have not successfully aligned protective force personnel systems—which affect career longevity, job transitions, and retirement—with the increased physical and other demands of a more paramilitary operation. Without better alignment, in our opinion, there is greater potential for a strike at a site, and potential risk to site security, when protective forces’ collective bargaining agreements expire. In the event of a strike at one site, the differences in protective forces’ training and equipment make it difficult to readily provide reinforcements from other sites. Even if strikes are avoided, the effectiveness of protective forces may be reduced if tensions exist between labor and management. The potential for a strike and for declines in protective forces’ performance have elevated the importance of finding the most effective approach to maintaining protective force readiness, including an approach that better aligns personnel systems and protective force requirements. At the same time, DOE must consider its options for managing protective forces in a period of budgetary constraints.

With these considerations in mind, DOE and NNSA, to their credit, have recognized that the decentralized management of protective forces creates some inefficiencies and that some systemic career and longevity issues are not being resolved through actions at individual sites. NNSA’s recent standardization initiatives and the 29 recommendations made by a DOE study group in June 2009 offer a step forward. The responsibility lies with DOE, working with protective force unions and contractors, to further develop and implement these initiatives and recommendations. However, if DOE decides not to take meaningful actions or if its actions will not achieve the intended goals, an examination of other options, including the federalization of protective forces, may be merited.

Recommendation for Executive Action

To better align protective force personnel policies and systems with DOE’s security requirements for Category I SNM sites, we recommend that the Secretary of Energy promptly develop implementation plans and, where needed, undertake additional research for the DOE study group’s 2009 recommendations to improve career longevity and retirement options for protective force personnel. Specifically, we recommend the Secretary take the following two actions: For actions such as reviewing the appropriateness of training that the study group identified as low or no cost, unless DOE can state compelling reasons for reconsideration, it should develop and execute implementation plans.

For actions that may involve substantial costs or contractual and organizational changes, such as enhancing the uniformity and portability of retirement benefits, DOE should plan and perform research to identify the most beneficial and financially feasible options.

Agency Comments

We provided DOE with a draft of this report for its review and comment. In its written comments for the department, NNSA generally agreed with the report and the recommendations. However, NNSA stated that the report does not sufficiently credit the department for its significant efforts taken to address protective force issues. We added some information to the report about the status of the department’s efforts that NNSA provided separately from its comment letter. Nevertheless, we continue to view DOE’s progress on its study group’s 29 recommendations as generally limited to date. The complete text of NNSA’s comments are presented in appendix II. NNSA also provided technical clarifications, which we incorporated into the report as appropriate.

OPM also received a draft of this report for review and comment. It chose not to provide formal comments because it said our report fairly and accurately represented the facts and policy issues that OPM provided to us.

We are sending copies of this report to congressional committees with responsibilities for energy issues; the Secretary of Energy; and the Director, Office of Management and Budget. This report is also available at no charge on GAO’s Web site at http://www.gao.gov.

If you or your staffs have any questions regarding this report, please contact me at (202) 512-3841 or aloisee@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors are listed in appendix III.

Appendix I: Recommendations from the Protective Force Career Options Initiative Study Group

In March 2009, the Department of Energy’s (DOE) Chief Health, Safety and Security (HSS) Officer commissioned a study to examine “realistic and reasonable options for improving the career opportunities and retirement prospects of protective force (PF) members while maintaining, within current and anticipated budgetary constraints, a robust and effective security posture.” Under the leadership of HSS and with input from protective force contractors, a study group was formed consisting of senior leaders of the National Council of Security Police and senior technical staff from the National Nuclear Security Administration, the Office of Environmental Management, the Office of Nuclear Energy, and the Office of Fossil Energy.

The study group’s report, Enhanced Career Longevity and Retirement Options for DOE Protective Force Personnel, released on June 30, 2009, included 29 recommendations to overcome the problems that prevent protective force members from working to a normal retirement age and building reasonable retirement benefits. Summaries of these recommendations follow.

Study Groups Recommendations

The study group thought the following 14 recommendations were achievable mostly within existing management structures and anticipated budgetary constraints. 1. PF deployment strategies should be re-examined to ensure that appropriate Security Police Officers’ (SPO) skill sets and response capabilities (e.g., offensive or defensive capabilities) are matched to current response plan requirements in a manner that maximizes reliance on defensive combatants. The intent is to maximize the number of defensive positions that could be filled by personnel who can no longer meet the higher offensive combatant requirements. 2. Anticipated requirements for security escorts and other security- related unarmed positions (including current outsourcing practices) should be reviewed and procedures implemented to maximize work opportunities for unarmed PF members (Security Officers). The intent of this recommendation and the next is to provide positions to be filled by PF members who can no longer meet either the offensive or the defensive combatant standards. 3. Unarmed PF-related work should be identified as part of the career path for PF members.

4. Measures should be adopted to minimize the impact of current physical fitness standards upon career longevity, and these standards should be reviewed against current job requirements. 5. Revisions to current medical requirements should be developed to ensure that existing medical conditions do not represent (given the current state of the medical arts) unreasonable barriers to career longevity. 6. So long as the department expects PF personnel to meet explicit medical and fitness standards, it should provide reasonable means to prepare for testing and evaluation. 7. Existing “fitness/wellness” programs should be expanded to help SPOs maintain and prolong their ability to meet physical fitness requirements and to achieve medical cost savings that result from maintaining a well-managed program. According to the study group, this recommendation is not cost-neutral. 8. Retirement/transition planning should be integrated into PF training. 9. The capabilities of the National Training Center should be used to facilitate career progression and job transition training. 10. PF organizations should be encouraged to appoint “Career Development/Transition” officers to assist personnel in career path and transition planning. 11. The Human Reliability Program (HRP) monitors employees to ensure they have no emotional, mental, or physical conditions that impede them from reliably conducting their work. Under this program, if a reasonable belief or credible evidence indicates that employees are not reliable, they should be immediately removed from their duties as an interim precautionary measure. The study group recommended taking strong actions to correct HRP administrative errors and to rigorously enforce existing prohibitions against using HRP in a punitive manner. This recommendation and the next arise from a concern that some protective force members may be punished without the opportunity for timely recourse. 12. Contractor policies and actions that lead to placing PF members in nonpaid status without appropriate review or recourse should be closely monitored (and, where necessary, corrected).

13. DOE M 470.4-3A, Contractor Protective Force, should be reviewed to ensure that requirements are supportable by appropriate training. 14. To encourage future communication on the issues considered in this study, the life of the present study group should be extended as a standing committee, and union participation in the DOE HSS Protective Force Policy Panel should be ensured.

The study group thought the following 15 recommendations would require currently unbudgeted resources or changes to existing contracts. 15. Existing defined contribution plans should be reviewed in order to identify methods to improve benefits, to ensure greater comparability of benefits from one site to the next, and to develop methods to improve portability of benefits. This recommendation, and those through number 19, involve changes to retirement plans that could enhance benefits and allow protective force personnel to transfer benefits more easily when moving to other sites. 16. Consistency in retirement criteria should be established across the DOE complex (e.g., a point system incorporating age and years of service or something similar). 17. The potential for incorporating a uniform cost-of-living allowance into defined benefit retirement programs based on government indexes should be examined. 18. Portability of service credit between PF and other DOE contractors should be explored. This could be directed in requests for proposals for new PF contracts. 19. Potential actions should be explored to create a reasonable disability retirement bridge for PF personnel when alternate job placement is unsuccessful. 20. Job performance requirements (such as firearms proficiency) should be supported by training sufficient to enable PF members to have confidence in meeting those requirements. 21. A retraining fund should be created to assist personnel with job transitions and second careers. 22. A centralized job registry should be established to facilitate identification of job opportunities across the complex.

23. Consideration should be given to sponsoring a student loan program to assist PF members in developing second careers. 24. The department, as a matter of policy and line management procedure, should establish the position that SPOs be considered for job placement within each respective site’s organizational structure before a contractor considers hiring personnel from outside of the site. 25. “Save pay” provisions should be included in collective bargaining agreements to cover specified periods when a PF member must be classified to a lower-paying position because of illness, injury, or aging. 26. DOE should explore the potential for facilitating partnerships among the various contractor organizations in order to broaden employment opportunities for aging or injured personnel and to encourage PF personnel seeking alternative career paths to actively compete for those opportunities. 27. Where possible, the department should review its separate PF prime contracts and convert them to “total” security and emergency management contracts. The intent of this recommendation is to permit protective force personnel to better compete for emergency management positions when they lack the ability or desire to continue with their security positions. 28. PF arming and arrest authority should be reviewed with the objective of enhancing the capabilities of SPOs. The intent of this recommendation is to, among other things, ease SPOs’ postretirement path into law enforcement positions. 29. Where possible, equipment, including uniforms, weapons, and badges, should be standardized throughout the department. According to the study group, more standardized uniforms might improve protective forces’ morale and could offer some offsetting cost savings for the department.

Appendix II: Comments from the Department of Energy

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Jonathan Gill, Assistant Director; John Cooney; Don Cowan; Cindy Gilbert; Terry Hanford; Mehrzad Nadji; Cheryl Peterson; and Carol Herrnstadt Shulman made key contributions to this report. Other contributors include Carol Kolarik, Peter Ruedel, and Robert Sanchez.