[Federal Register Volume 80, Number 183 (Tuesday, September 22, 2015)]
[Rules and Regulations]
[Pages 57080-57083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24083]


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DEPARTMENT OF ENERGY

10 CFR Part 1046

RIN 1992-AA40


Medical, Physical Readiness, Training, and Access Authorization 
Standards for Protective Force Personnel

AGENCY: Office of Environment, Health, Safety and Security, Department 
of Energy.

ACTION: Final rule.

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SUMMARY: On September 10, 2013, the Department of Energy (DOE or 
Department) issued in the Federal Register a revision to its 
regulations governing the standards for medical, physical performance, 
training, and access authorizations for protective force (PF) personnel 
employed by contractors providing security services to the Department. 
Subsequently, the DOE created a new Office of Environment, Health, 
Safety and Security (AU) to improve the effectiveness and efficiency of 
its environmental, health, safety and security policy. Certain 
functions that previously were carried out by the Office of Health, 
Safety and Security have been transferred to the new office. This final 
rule makes technical amendments to DOE's regulations to substitute the 
officials to whom or offices to which functions have been transferred 
pursuant to the reorganization. Today's regulatory amendments do not 
alter substantive rights or obligations under current law.

DATES: The effective date of this rule is September 22, 2015.

FOR FURTHER INFORMATION CONTACT: 
    Mr. Richard Faiver, Office of Security Policy at (301) 903-4613; 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Section by Section Analysis
III. Regulatory Review and Procedural Requirements
    A. Review Under the Administrative Procedure Act
    B. Review Under Executive Order 12866
    C. Review Under the Regulatory Flexibility Act
    D. Review Under Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under Executive Order 12988
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act of 1999
    K. Congressional Notification
    L. Approval by the Office of the Secretary of Energy

I. Background

    Pursuant to the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) 
and the DOE Organization Act of 1977 (42 U.S.C. 7101 et seq.), DOE owns 
and leases defense nuclear and other facilities in various locations in 
the United States. These facilities are operated by DOE or by 
contractors (including subcontractors at all tiers) with DOE oversight. 
Protection of the DOE facilities is provided by armed and unarmed PF 
personnel employed by Federal Government contractors. These PF 
personnel are required to perform both routine and emergency duties, 
which include patrolling DOE sites, manning security posts, protecting 
government and contractor employees, property, and sensitive and 
classified information, training for potential crisis or emergency 
situations, and responding to security incidents. PF personnel are 
required to meet various job-related minimum medical and physical 
readiness qualification standards designed to ensure they are capable 
of performing all essential functions of normal and emergency PF duties 
without posing a direct threat to themselves or others. DOE's 
regulations in 10 CFR part 1046 establish the medical, physical 
readiness, training and performance standards for contractor PF 
personnel.
    On September 10, 2013, DOE issued in the Federal Register a 
revision to its regulations at 10 CFR part 1046 (78 FR 55174). 
Subsequently, on May 4, 2014, DOE created a new office, AU, to improve 
the effectiveness and efficiency of its environment, health, safety and 
security policy. DOE transferred certain health, safety and security 
functions to the new office that previously were carried out by the 
Office of Health, Safety and Security. This final rule amends 10 CFR 
part 1046 to reflect DOE's new organizational structure. None of the 
regulatory amendments in this final rule alter substantive rights or 
obligations under current law. The modifications to 10 CFR part 1046 
are described in the Section by Section Analysis in section II.

II. Section by Section Analysis

    In this final rule, the Office of Health, Safety and Security 
organization has been renamed to the Office of Environment, Health, 
Safety and Security. The position title of Chief Health, Safety and 
Security Officer has been renamed to the Associate Under Secretary for 
the Office of Environment, Health, Safety and Security. DOE has removed 
reference(s) to the Chief Medical Officer and, where appropriate,

[[Page 57081]]

added position title of Associate Under Secretary for the Office of 
Environment, Health, Safety and Security in its place. Sections that 
have been revised pursuant to the reorganization described above are 
listed below. Sections not discussed below have not changed as a result 
of this final rule.

Subpart A--General

    1. Changes for Sec.  1046.2, Scope, revises the language of this 
section to identify new organizational names and position titles.
    2. Changes for Sec.  1046.3, Definitions, revises the language of 
this section only to identify new organizational names and position 
titles.
    3. Changes for Sec.  1046.4, Physical Protection Medical Director, 
revises the language of this section only to identify new 
organizational names and position titles.
    4. Changes for Sec.  1046.5, Designated Physician, revises the 
language of this section only to identify new organizational names and 
position titles.

Subpart B--PF Personnel

    5. Changes for Sec.  1046.13, Medical certification standards and 
procedures, revises the language of this section only to identify new 
organizational names and position titles.
    6. Changes for Sec.  1046.15, Review of medical certification 
disqualification, revises the language of this section only to identify 
new organizational names and position titles.
    7. Changes for Sec.  1046.17, Training standards and procedures, 
revises the language of this section only to identify new 
organizational names and position titles.

III. Rulemaking Requirements

A. Review Under the Administrative Procedure Act

    This action amends the PF regulations at 10 CFR part 1046 only to 
identify new organizational names and position titles resulting from a 
reorganization of DOE's Office of Health, Safety and Security, which is 
now known as AU. The rule has no substantive effect on the standards 
for medical, physical performance, training and access authorizations 
for PF personnel employed by contractors providing security services to 
the Department. Therefore, DOE has determined that prior opportunity 
for public notice and comment is unnecessary and contrary to the public 
interest pursuant to 5 U.S.C. 553(b)(B). For these same reasons, DOE 
has determined that it is appropriate to waive the 30-day delay in 
effective date pursuant to 5 U.S.C. 553(d).

B. Review Under Executive Order 12866

    This action does not constitute a ``significant regulatory action'' 
as defined in section 3(f) of Executive Order 12866, ``Regulatory 
Planning and Review'' (58 FR 51735).

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a 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, Aug. 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. DOE has made its procedures 
and policies available on the Office of the General Counsel's Web site 
(http://www.energy.gov/gc/office-general-counsel).
    Because this rule is not required by law to be proposed for public 
comment, the analytical requirements of the Regulatory Flexibility Act 
do not apply. DOE has, however, reviewed today's rule under the 
Regulatory Flexibility Act and determined that the rule would not have 
a significant impact on a substantial number of small entities. This 
action would amend an existing rule which establishes medical and 
physical training requirements and standards for DOE PF personnel. The 
medical and physical training requirements and standards affect 
approximately twenty private firms (e.g., integrated Management and 
Operating contractors, security services contractors, and 
subcontractors) at the Department's facilities around the United 
States. Some of those firms which provide protective services are 
classified under NAICS Code 561612, Security Guards and Patrol 
Services. To be classified as a small business, they must have average 
annual receipts of $18.5 million or less. Some of the private firms 
affected by these standards and requirements would be classified as 
small businesses.
    Because today's action identifies only organizational changes, the 
impact on these firms will not be significant. For this reason, DOE 
determines the rule will not have a significant economic impact on a 
substantial number of small entities.

D. Review Under Paperwork Reduction Act

    No new information collection requirements subject to the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., are imposed by this regulatory 
action.

E. Review Under the National Environmental Policy Act

    This rule amends existing policies and procedures establishing 
medical and physical readiness standards for DOE PF personnel and has 
no significant environmental impact. Consequently, the Department has 
determined that this rule is covered under Categorical Exclusion A-5, 
of Appendix A to Subpart D, 10 CFR part 1021, which applies to a 
rulemaking that addresses amending an existing rule or regulation that 
does not change the environmental effect of the rule or regulation 
being amended. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' (64 FR 43255, August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to develop a formal 
process to ensure meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
``federalism implications.'' Policies that have federalism implications 
are defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' On March 
7, 2011, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations (65 FR 13735, March 14, 2000).
    DOE has examined this rule and has determined that it does not have 
a substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

G. Review Under Executive Order 12988

    Section 3 of Executive Order 12988, (61 FR 4729, February 7, 1996), 
instructs each agency to adhere to certain requirements in promulgating 
new

[[Page 57082]]

regulations. These requirements, set forth in section 3(a) and (b), 
include eliminating drafting errors and needless ambiguity, drafting 
the regulations to minimize litigation, providing clear and certain 
legal standards for affected legal conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation describes 
any administrative proceeding to be available prior to judicial review 
and any provisions for the exhaustion of administrative remedies. The 
Department has determined that this regulatory action meets the 
requirements of section 3(a) and (b) of Executive Order 12988.

H. 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 action on state, local and tribal governments, and the 
private sector. For proposed regulatory actions likely to result in a 
rule that may cause expenditures 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 estimates of the resulting 
costs, benefits, and other effects on the national economy. UMRA also 
requires Federal agencies to develop an effective process to permit 
timely input by elected officers of State, local, and Tribal 
governments on a proposed ``significant intergovernmental mandate.'' In 
addition, UMRA requires an agency plan for giving notice and 
opportunity for timely input to small governments that may be affected 
before establishing a requirement that might significantly or uniquely 
affect them. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA (62 FR 12820, 
March 18, 1997). (This policy is also available at http://www.energy.gov/gc/office-general-counsel.) Today's rule contains 
neither an intergovernmental mandate, nor a mandate that may result in 
the expenditure of $100 million or more in any year, so these 
requirements do not apply. The rule would identify only organizational 
changes resulting from a reorganization of DOE's Office of Health, 
Safety and Security, which is now AU. The impact is not likely to 
result in the expenditure of $100 million or more in any one year.

I. 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 
the Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
the 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 proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternates to the action and 
their expected benefits on energy supply, distribution, and use.
    This rule is not a significant energy action, nor has it been 
designated as such by the Administrator of OIRA. Accordingly, DOE has 
not prepared a Statement of Energy Effects.

J. 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 proposed rule or policy that may affect 
family well-being. Today's 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.

K. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of this final rule prior to the effective date 
set forth at the outset of this rulemaking. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

L. Approval by the Office of the Secretary of Energy.

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

List of Subjects in 10 CFR Part 1046

    Government contracts, Reporting and recordkeeping requirements, 
Security measures.

    Issued in Washington, DC, on September 1, 2015.
Elizabeth Sherwood-Randall,
Deputy Secretary of Energy.
    For the reasons set out in the preamble, DOE amends part 1046 of 
title 10 of the Code of Federal Regulations as set forth below:

PART 1046--MEDICAL, PHYSICAL READINESS, TRAINING, AND ACCESS 
AUTHORIZATION STANDARDS FOR PROTECTIVE FORCE PERSONNEL

0
1. The authority citation for part 1046 continues to read as follows:

    Authority:  42 U.S.C. 2011, et seq.; 42 U.S.C. 7101, et seq.; 50 
U.S.C. 2401, et seq.

Sec.  1046.2  [Amended]

0
2. Section 1046.2 is amended:
0
a. In paragraph (c) by removing ``Chief Health, Safety and Security 
Officer'' and adding in its place ``Associate Under Secretary for the 
Office of Environment, Health, Safety and Security (AU-1)'';
0
b. In paragraph (d), second sentence, by removing ``the Office of 
Health, Safety and Security'' and adding in its place ``AU''; and in 
the third sentence, by removing ``The Office of Health, Safety and 
Security'' and adding in its place ``AU-1''; and
0
c. In paragraph (e) by removing ``the Chief Health, Safety and Security 
Officer'' and adding in its place ``the Associate Under Secretary for 
Environment, Health, Safety and Security''.


Sec.  1046.3  [Amended]

0
3. In Sec.  1046.3, the definition of ``Designated Physician'' is 
amended by removing ``The Office of Health, Safety and Security'' and 
adding in its place ``AU-1'', and the definition of ``Weapons 
proficiency demonstration'' is amended by removing ``the Office of 
Health, Safety and Security'' and adding in its place ``AU-1''.


Sec.  1046.4  [Amended]

0
4. Section 1046.4 is amended in:
0
a. Paragraphs (a)(1) introductory text, (a)(1)(iv), (a)(2), (a)(3), (b) 
introductory text, (d)(1) introductory text, and (d)(2) by removing 
``the Office of Health, Safety and Security'' and adding in its place 
``AU-1'';
0
b. Paragraph (e), by removing ``The Office of Health, Safety and 
Security'' and adding in its place ``AU-1'';
0
c. Paragraph (f), by removing ``the Office of Health, Safety and 
Security'',

[[Page 57083]]

four occurrences, and adding in its place ``AU-1''; and
0
d. Paragraph (g), by removing, ``the Chief Health, Safety and Security 
Officer'', and adding in its place ``AU-1''; and by removing ``the 
Office of Health, Safety and Security'' and adding in its place ``AU-
1''.


Sec.  1046.5  [Amended]

0
5. Section 1046.5(c) is amended by removing ``the Office of Health, 
Safety and Security'', two occurrences, and adding in both places, 
``AU-1''.


Sec.  1046.13  [Amended]

0
6. Section 1046.13(b)(3) is amended by removing ``the Chief Medical 
Officer'' and adding in its place ``AU-1''.


Sec.  1046.15  [Amended]

0
7. Section 1046.15 is amended in:
0
a. Paragraph (c) introductory text, by removing ``the Office of Health, 
Safety and Security'' and adding in its place ``AU-1''; and in 
paragraph (c)(1) by removing ``The Office of Health, Safety and 
Security'' and adding in its place ``AU-1''; and
0
b. Paragraphs (c)(2), (c)(3), (c)(4) introductory text, (c)(4)(iii), 
(c)(5), (c)(6) introductory text, (c)(7) four occurrences, (c)(8) and 
(d) two occurrences, by removing ``the Office of Health, Safety and 
Security'' and adding in its place ``AU-1''.


Sec.  1046.17  [Amended]

0
8. Section 1046.17 is amended in paragraph (k)(6) by removing ``the 
Office of Health, Safety and Security'' and adding in its place ``AU-
1''.

[FR Doc. 2015-24083 Filed 9-21-15; 8:45 am]
 BILLING CODE 6450-01-P