[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
[Rules and Regulations]
[Pages 23689-23692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10042]


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DEPARTMENT OF ENERGY

10 CFR Part 1047

RIN 1994-AA03


Authority of DOE Protective Force Officers That Are Federal 
Employees To Make Arrests Without a Warrant for Certain Crimes

AGENCY: National Nuclear Security Administration, Department of Energy.

ACTION: Final rule.

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SUMMARY: Section 161 k. of the Atomic Energy Act, as amended, empowers 
the Secretary of Energy (``the Secretary'') to authorize designated 
U.S. Department of Energy (DOE) employees and contractors to make an 
arrest without a warrant for certain crimes. Specifically, the 
Secretary may authorize the arrest of any individual who has committed 
a federal crime in the presence of a DOE protective force officer 
regarding the property of the United States in the custody of DOE or 
DOE contractors. The Secretary may also authorize the arrest of any 
individual who is reasonably believed to have committed or to be 
committing a felony regarding the property of the United States in the 
custody of DOE or DOE contractors. Pursuant to this authority, DOE adds 
misdemeanor and felony violations of Assaulting a Federal Officer to 
the enumerated criminal violations for which DOE protective force 
officers that are federal employees may execute an arrest without a 
warrant, as set forth in DOE regulations.

DATES: The rule is effective on April 29, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. Bruce Diamond, U.S. Department of 
Energy, National Nuclear Security Administration, Mail Stop NNSA, 
Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585-
0103. Telephone: (202) 586-3700.
    Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background and Authority
II. Synopsis of the Rule
III. Regulatory Procedures, Justification for Final Rule
    Administrative Procedure Act
    Review Under Executive Order 12866
    Review Under the Regulatory Flexibility Act
    Review Under the Paperwork Reduction Act
    Review Under the National Environmental Policy Act of 1969
    Review Under Executive Order 13132
    Review Under Executive Order 12988
    Review Under the Unfunded Mandates Reform Act of 1995
    Review Under the Treasury and General Government Appropriations 
Act, 1999
    Review Under Executive Order 12630
    Review Under the Treasury and General Government Appropriations 
Act, 2001
    Review Under Executive Order 13211
    Congressional Notification
IV. Approval of the Office of the Secretary

I. Background and Authority

    Section 161 k. of the Atomic Energy Act of 1954 (AEA), as amended 
by Pub. L. 105-394 (codified at 42 U.S.C. 2201(k)), empowers the 
Secretary of Energy (``the Secretary'') to authorize designated 
members, officer, employees, contractors, and subcontractors of the 
Department of Energy (DOE) to carry firearms while discharging their 
official duties. Section 161 k. further provides that the Secretary may 
authorize these designated officials to make an arrest without a 
warrant for any federal crime regarding the property of the United 
States in the custody of DOE or a DOE contractor and for any federal 
felony regarding the property of the United States in the custody of 
DOE or a DOE contractor that a designated official reasonably believes 
is being or has been committed. Lastly, section 161 k. authorizes the 
Secretary to issue guidelines, with the approval of the Attorney 
General, to implement this authority.
    The Secretary has previously exercised this authority to sanction 
arrests without warrants for certain federal crimes through the 
regulation at

[[Page 23690]]

10 CFR 1047.4. This section enumerates the federal crimes for which a 
DOE protective force officer may execute a warrantless arrest. These 
crimes are incorporated by reference to the appropriate section of the 
United States Code. Consistent with section 161 k. of the AEA, however, 
10 CFR 1047.4 makes clear that such authority is limited to the 
included crimes and may only be exercised ``if the property of the 
United States which is in the custody of the DOE or its contractors is 
involved.'' Additionally, 10 CFR 1047.4(b) and 10 CFR 1047.4(c) set 
forth the necessary facts to effectuate a valid warrantless arrest for 
a felony and a misdemeanor, respectively. 10 CFR 1047.4(b) states that 
an arrest may be executed on the basis of an enumerated felony either 
if it is committed in the presence of a DOE protective force officer or 
if a DOE protective force officer reasonably believes that a felony has 
been or is being committed. In contrast, 10 CFR 1047.4(c) states that 
an arrest may only be executed on the basis of an enumerated 
misdemeanor if it occurs in the presence of a DOE protective force 
officer.

II. Synopsis of the Rule

    With this rule, DOE is establishing a new subsection within 10 CFR 
1047.4(a)(1) to add 18 U.S.C. 111 (``Assaulting, resisting, or impeding 
certain officers or employees'') to the list of enumerated federal 
crimes for which DOE protective force officers that are federal 
employees \1\ may execute a warrantless arrest. In relevant part, this 
statute criminalizes the activity of anyone who ``forcibly assaults, 
resists, opposes, impedes, intimidates, or interferes with any person 
designated in section 1114 of this title while engaged in or on account 
of the performance of official duties.'' 18 U.S.C. 111. As defined in 
18 U.S.C. 1114, section 111 applies to actions taken against ``any 
officer or employee of the United States or of any agency in any branch 
in the United States Government (including any member of the uniformed 
services) while such officer or employee is engaged in or on account of 
the performance of official duties, or any person assisting such an 
officer or employee in the performance of such duties or on account of 
that assistance.'' Specifically, DOE is adding reference to felony and 
misdemeanor violations of 18 U.S.C. 111 at 10 CFR 1047(a)(1)(iii). To 
retain consistency, DOE is also amending 10 CFR 1047.4(b) and 10 CFR 
1047.4(c) to incorporate the newly added 10 CFR 1047(a)(1)(iii).
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    \1\ All of the crimes currently listed in 10 CFR 1047.4(a) (1) 
may serve as the basis for an arrest by any DOE protective force 
officer, including those who are non-federal, contract employees.
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    DOE believes that this change is necessary to ensure that DOE 
protective force officers that are federal employees may effectively 
protect United States property in the custody of DOE and DOE 
contractors. Authorizing DOE protective force officers that are federal 
employees to arrest individuals who impede the official duties of DOE 
protective force personnel allows them to immediately neutralize any 
individual who poses an existing and ongoing threat to both the 
integrity of the property of the United States and the ability of DOE 
to retain custody of such property.
    The 18 U.S.C. 111 statute is similar in nature to many of the 
crimes for which the Secretary has previously delegated arrest 
authority by reference in 10 CFR 1047.4(a), including civil disorder, 
18 U.S.C. 231, conspiracy, 18 U.S.C. 371, damage to or destruction of 
government property, 18 U.S.C. 2112, destruction of motor vehicles, 18 
U.S.C. 33, unlawful use of explosives, 18 U.S.C. 844(f), and sabotage, 
18 U.S.C. 2151, 2153-2156. See 50 FR 30926 (July 31, 1985).

III. Regulatory Procedures, Justification for Final Rule.

Administrative Procedure Act

    Pursuant to authority at 5 U.S.C. 553(b)(B), DOE finds good cause 
to waive the requirement to provide prior notice and an opportunity for 
public comment for this rulemaking as such procedures would be 
impracticable and contrary to the public interest. DOE believes that 
this change is necessary to ensure that Federal Agents may effectively 
protect ongoing shipments of nuclear weapons, nuclear components and 
special nuclear materials in the custody of DOE. Authorizing DOE 
protective force officers to detain or arrest individuals who impede 
the official duties of DOE protective force personnel allows them to 
act quickly to disrupt situations that pose an existing and ongoing 
threat to both the integrity of the property of the United States and 
the ability of DOE to retain custody of such property. The 
extraordinary sensitivity of the cargo in the custody of DOE warrants 
immediate action to reduce the risks to DOE Federal Agents' ability to 
carry out their protective function.
    For the same reason, DOE finds good cause pursuant to authority at 
5 U.S.C. 553(d)(3), to waive the requirement that this rule be delayed 
in effective date 30 days after the date of publication. As such, this 
rule will be effective April 29, 2015.

Review Under Executive Order 12866

    This rulemaking is not a ``significant regulatory action'' under 
section 3(f)(1) of Executive Order 12866 and the principles reaffirmed 
in Executive Order 13563 because it will not have an economic impact of 
$100 million, it does not create a serious inconsistency with other 
agency actions, will not materially impact any budget, and does not 
raise novel legal or policy issues. Accordingly, today's action was not 
subject to review by the Office of Information and Regulatory Affairs 
(OIRA) in the Office of Management and Budget (OMB).

Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site (http://energy.gov/gc/office-general-counsel).
    Because this rule is not subject to the requirement that the agency 
provide prior notice and an opportunity for public comment pursuant to 
5 U.S.C. 553, or any other law, the analytical requirements of the 
Regulatory Flexibility Act are inapplicable to this rulemaking. DOE 
notes that this final rule would empower DOE protective force officers 
that are federal employees to arrest individuals who violate 18 U.S.C. 
111 when such a violation involves the property of the United States in 
the custody of DOE or a DOE contractor. This rule is a matter of law 
enforcement procedure and does not impose any requirement on any small 
entities.

Review Under the Paperwork Reduction Act

    This rulemaking imposes no new information or record keeping 
requirements. Accordingly, Office of Management and Budget clearance is

[[Page 23691]]

not required under the Paperwork Reduction Act. 44 U.S.C. 3501 et seq.

Review Under the National Environmental Policy Act of 1969

    Pursuant to the National Environmental Policy Act of 1969, DOE has 
determined that this rule is covered under the Categorical Exclusion 
found in DOE's National Environmental Policy Act regulations at 
paragraph A.5 of Appendix A to Subpart D, 10 CFR part 1021, which 
applies to rulemakings ``amending an existing rule or regulation that 
does not change the environmental effect of the rule or regulation 
being amending.'' The arrest authority of DOE protective force officers 
has no significant impact on the environment. Therefore, DOE does not 
need to prepare an Environmental Assessment or Environmental Impact 
Statement for this rule.

Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), 
imposes certain requirements on Federal agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have a process of accountability to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications. 
This publication is intended to put both States and the general public 
on notice of this final rule.

Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' imposes on Federal agencies the general duty 
to adhere to the following requirements: (1) eliminate drafting errors 
and ambiguity; (2) write regulations to minimize litigation; and (3) 
provide a clear legal standard for affected conduct rather than a 
general standard and promote simplification and burden reduction. 61 FR 
4729 (Feb. 7, 1996). Section 3(b) of Executive Order 12988 specifically 
requires that Executive agencies make every reasonable effort to ensure 
that the regulation: (1) Clearly specifies the preemptive effect, if 
any; (2) clearly specifies any effect on existing Federal law or 
regulation; (3) provides a clear legal standard for affected conduct 
while promoting simplification and burden reduction; (4) specifies the 
retroactive effect, if any; (5) adequately defines key terms; and (6) 
addresses other important issues affecting clarity and general 
draftsmanship under any guidelines issued by the Attorney General. 
Section 3(c) of Executive Order 12988 requires Executive agencies to 
review regulations in light of applicable standards in section 3(a) and 
section 3(b) to determine whether they are met or it is unreasonable to 
meet one or more of them. DOE has completed the required review and 
determined that, to the extent permitted by law; this final rule meets 
the relevant standards of Executive Order 12988.

Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a proposed regulatory action likely to result in a rule that may 
cause the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year (adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 2 
U.S.C. 1532(a), (b). The UMRA also requires a Federal agency to develop 
an effective process to permit timely input by elected officers of 
State, local, and Tribal governments on a ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820 (Mar. 18, 1997). 
DOE's policy statement is also available at http://energy.gov/gc/office-general-counsel. This final rule contains neither an 
intergovernmental mandate nor a mandate that may result in the 
expenditure of $100 million or more in any year, so the UMRA does not 
apply.

Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule would not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' 53 FR 8859 (March 18, 1988), that this regulation would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to 
review most disseminations of information to the public under 
guidelines established by each agency pursuant to general guidelines 
issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 
2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 
2002). DOE has reviewed today's final rule under the OMB and DOE 
guidelines and has concluded that it is consistent with applicable 
policies in those guidelines.

Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
at OMB, a Statement of Energy Effects for any significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, an agency 
must give a detailed statement of any adverse effects on energy supply, 
distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.

[[Page 23692]]

    DOE has concluded that this regulatory action is not a significant 
energy action because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy, nor has it been 
designated as such by the Administrator at OIRA. Accordingly, DOE has 
not prepared a Statement of Energy Effects on the final rule.

Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

IV. Approval of the Office of the Secretary

    The Office of the Secretary of Energy has approved the issuance of 
this final rule.

List of Subjects in 10 CFR Part 1047

    Government contracts, Law enforcement, Nuclear energy.

    Issued in Washington, DC, on March 23, 2015.
Ernest J. Moniz,
Secretary.

    For the reasons set forth in the preamble, DOE is amending part 
1047 of chapter X of title 10 of the Code of Federal Regulations, to 
read as set forth below:

PART 1047--LIMITED ARREST AUTHORITY AND USE OF FORCE BY PROTECTIVE 
FORCE OFFICERS

0
1. The authority citation for part 1047 continues to read as follows:

    Authority: Sec. 2201, Pub. L. 83-703, 68 Stat. 919 (42 U.S.C. 
2011 et seq.); Department of Energy Organization Act, Pub. L. 95-91, 
91 Stat. 565 (42 U.S.C. 7101 et seq.).


0
2. Section 1047.4 is amended by:
0
a. Adding paragraph (a)(1)(iii); and
0
b. Revising paragraphs (b) and (c).
    The addition and revisions read as follows:


Sec.  1047.4  Arrest authority.

    (a) * * *
    (1) * * *
    (iii) Assaulting, resisting, or impeding certain officers or 
employees--18 U.S.C. 111. Both the felony and misdemeanor level 
offenses may only be enforced by protective force officers that are 
federal employees.
* * * * *
    (b) Felony Arrests. A protective force officer is authorized to 
make an arrest for any felony listed in paragraph (a)(1)(i) or 
(a)(2)(i) of this section if the offense is committed in the presence 
of the protective force officer or if he or she has reasonable grounds 
to believe that the individual to be arrested has committed or is 
committing the felony.
    (c) Misdemeanor Arrest. A protective force officer is authorized to 
make an arrest for any misdemeanor listed in paragraph (a)(1)(ii) or 
(a)(2)(ii) of this section if the offense is committed in the presence 
of the protective force officer.
* * * * *

[FR Doc. 2015-10042 Filed 4-28-15; 8:45 am]
 BILLING CODE 6450-01-P