80 FR 23689 - Authority of DOE Protective Force Officers That Are Federal Employees To Make Arrests Without a Warrant for Certain Crimes

DEPARTMENT OF ENERGY

Federal Register Volume 80, Issue 82 (April 29, 2015)

Page Range		23689-23692
FR Document		2015-10042

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.

Federal Register, Volume 80 Issue 82 (Wednesday, April 29, 2015)

[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
[Rules and Regulations]
[Pages 23689-23692]
From the Federal Register Online [www.thefederalregister.org]
[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: Bruce.Diamond@nnsa.doe.gov.

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).
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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

Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 23689

change of status to F–1, M–1 or J–1 provided in paragraph (m)(17)(ii)(A) or are federal employees may execute an
nonimmigrant status, as appropriate, (B) of this section. arrest without a warrant, as set forth in
before beginning a full course of study. * * * * * DOE regulations.
An F–2 spouse and child may engage in ■ 3. Revise § 214.3(l)(1)(iii) to read as DATES: The rule is effective on April 29,
study that is avocational or recreational follows: 2015.
in nature, up to and including on a full- FOR FURTHER INFORMATION CONTACT: Mr.
time basis. § 214.3 Approval of schools for enrollment Bruce Diamond, U.S. Department of
(B) F–2 elementary or secondary of F and M nonimmigrants.
Energy, National Nuclear Security
study. An F–2 child may engage in full- * * * * * Administration, Mail Stop NNSA,
time study, including any full course of (l) * * * Forrestal Building, 1000 Independence
study, in any elementary or secondary (1) * * * Avenue SW., Washington, DC 20585–
school (kindergarten through twelfth (iii) School officials may nominate as
0103. Telephone: (202) 586–3700.
grade). many DSOs in addition to PDSOs as Email: Bruce.Diamond@nnsa.doe.gov.
(C) An F–2 spouse and child violates they determine necessary to adequately
SUPPLEMENTARY INFORMATION:
his or her nonimmigrant status by provide recommendations to F and/or M
students enrolled at the school Table of Contents
enrolling in any study except as
provided in paragraph (f)(15)(ii)(A) or regarding maintenance of nonimmigrant I. Background and Authority
(B) of this section. status and to support timely and II. Synopsis of the Rule
complete recordkeeping and reporting III. Regulatory Procedures, Justification for
* * * * * to DHS, as required by this section. Final Rule
(m) * * * School officials must not permit a DSO Administrative Procedure Act
(17) * * * or PDSO nominee access to SEVIS until Review Under Executive Order 12866
(i) * * * DHS approves the nomination. Review Under the Regulatory Flexibility
Act
(ii) Study—(A) M–2 post-secondary/ * * * * * Review Under the Paperwork Reduction
vocational study—(1) Authorized study Act
at SEVP-certified schools. An M–2 Jeh Charles Johnson,
Review Under the National Environmental
spouse or M–2 child may enroll in less Secretary. Policy Act of 1969
than a full course of study, as defined [FR Doc. 2015–09959 Filed 4–28–15; 8:45 am] Review Under Executive Order 13132
in paragraphs (f)(6)(i)(A) through (D) or BILLING CODE 9111–28–P Review Under Executive Order 12988
Review Under the Unfunded Mandates
(m)(9)(i) through (v), in any course of
Reform Act of 1995
study described in paragraphs Review Under the Treasury and General
(f)(6)(i)(A) through (D) or (m)(9)(i) DEPARTMENT OF ENERGY Government Appropriations Act, 1999
through (v) of this section at an SEVP- Review Under Executive Order 12630
certified school. Notwithstanding 10 CFR Part 1047 Review Under the Treasury and General
paragraphs (f)(6)(i)(B) and (m)(9)(i) of RIN 1994–AA03 Government Appropriations Act, 2001
this section, study at an undergraduate Review Under Executive Order 13211
college or university or at a community Authority of DOE Protective Force Congressional Notification
college or junior college is not a full IV. Approval of the Office of the Secretary
Officers That Are Federal Employees
course of study solely because the M– To Make Arrests Without a Warrant for I. Background and Authority
2 nonimmigrant is engaging in a lesser Certain Crimes Section 161 k. of the Atomic Energy
course load to complete a course of Act of 1954 (AEA), as amended by Pub.
study during the current term. An M–2 AGENCY: National Nuclear Security
Administration, Department of Energy. L. 105–394 (codified at 42 U.S.C.
spouse or M–2 child enrolled in less 2201(k)), empowers the Secretary of
than a full course of study is not eligible ACTION: Final rule.
Energy (‘‘the Secretary’’) to authorize
to engage in employment pursuant to SUMMARY: Section 161 k. of the Atomic designated members, officer, employees,
paragraph (m)(14) of this section or Energy Act, as amended, empowers the contractors, and subcontractors of the
pursuant to paragraphs (f)(9) through Secretary of Energy (‘‘the Secretary’’) to Department of Energy (DOE) to carry
(10) of this section. authorize designated U.S. Department of firearms while discharging their official
(2) Full course of study. Subject to Energy (DOE) employees and duties. Section 161 k. further provides
paragraph (m)(17)(ii)(B) of this section, contractors to make an arrest without a that the Secretary may authorize these
an M–2 spouse and child may engage in warrant for certain crimes. Specifically, designated officials to make an arrest
a full course of study only by applying the Secretary may authorize the arrest of without a warrant for any federal crime
for and obtaining a change of status to any individual who has committed a regarding the property of the United
F–1, M–1, or J–1 status, as appropriate, federal crime in the presence of a DOE States in the custody of DOE or a DOE
before beginning a full course of study. protective force officer regarding the contractor and for any federal felony
An M–2 spouse and M–2 child may property of the United States in the regarding the property of the United
engage in study that is avocational or custody of DOE or DOE contractors. The States in the custody of DOE or a DOE
recreational in nature, up to and Secretary may also authorize the arrest contractor that a designated official
including on a full-time basis. of any individual who is reasonably reasonably believes is being or has been
(B) M–2 elementary or secondary believed to have committed or to be committed. Lastly, section 161 k.
study. An M–2 child may engage in full- committing a felony regarding the authorizes the Secretary to issue
mstockstill on DSK4VPTVN1PROD with RULES

time study, including any full course of property of the United States in the guidelines, with the approval of the
study, in any elementary or secondary custody of DOE or DOE contractors. Attorney General, to implement this
school (kindergarten through twelfth Pursuant to this authority, DOE adds authority.
grade). misdemeanor and felony violations of The Secretary has previously
(C) An M–2 spouse or child violates Assaulting a Federal Officer to the exercised this authority to sanction
his or her nonimmigrant status by enumerated criminal violations for arrests without warrants for certain
enrolling in any study except as which DOE protective force officers that federal crimes through the regulation at

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23690 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations

10 CFR 1047.4. This section enumerates amending 10 CFR 1047.4(b) and 10 CFR such, this rule will be effective April 29,
the federal crimes for which a DOE 1047.4(c) to incorporate the newly 2015.
protective force officer may execute a added 10 CFR 1047(a)(1)(iii).
Review Under Executive Order 12866
warrantless arrest. These crimes are DOE believes that this change is
incorporated by reference to the necessary to ensure that DOE protective This rulemaking is not a ‘‘significant
appropriate section of the United States force officers that are federal employees regulatory action’’ under section 3(f)(1)
Code. Consistent with section 161 k. of may effectively protect United States of Executive Order 12866 and the
the AEA, however, 10 CFR 1047.4 property in the custody of DOE and principles reaffirmed in Executive Order
makes clear that such authority is 13563 because it will not have an
DOE contractors. Authorizing DOE
limited to the included crimes and may economic impact of $100 million, it
protective force officers that are federal
only be exercised ‘‘if the property of the does not create a serious inconsistency
employees to arrest individuals who
United States which is in the custody of with other agency actions, will not
impede the official duties of DOE
the DOE or its contractors is involved.’’ materially impact any budget, and does
protective force personnel allows them
Additionally, 10 CFR 1047.4(b) and 10 not raise novel legal or policy issues.
to immediately neutralize any
CFR 1047.4(c) set forth the necessary Accordingly, today’s action was not
individual who poses an existing and
facts to effectuate a valid warrantless subject to review by the Office of
ongoing threat to both the integrity of
arrest for a felony and a misdemeanor, Information and Regulatory Affairs
the property of the United States and
respectively. 10 CFR 1047.4(b) states (OIRA) in the Office of Management and
the ability of DOE to retain custody of
that an arrest may be executed on the Budget (OMB).
such property.
basis of an enumerated felony either if The 18 U.S.C. 111 statute is similar in Review Under the Regulatory Flexibility
it is committed in the presence of a DOE nature to many of the crimes for which Act
protective force officer or if a DOE the Secretary has previously delegated The Regulatory Flexibility Act (5
protective force officer reasonably arrest authority by reference in 10 CFR U.S.C. 601 et seq.) requires preparation
believes that a felony has been or is 1047.4(a), including civil disorder, 18 of an initial regulatory flexibility
being committed. In contrast, 10 CFR U.S.C. 231, conspiracy, 18 U.S.C. 371, analysis for any rule that by law must
1047.4(c) states that an arrest may only damage to or destruction of government be proposed for public comment, unless
be executed on the basis of an property, 18 U.S.C. 2112, destruction of the agency certifies that the rule, if
enumerated misdemeanor if it occurs in motor vehicles, 18 U.S.C. 33, unlawful promulgated, will not have a significant
the presence of a DOE protective force use of explosives, 18 U.S.C. 844(f), and economic impact on a substantial
officer. sabotage, 18 U.S.C. 2151, 2153–2156. number of small entities. As required by
II. Synopsis of the Rule See 50 FR 30926 (July 31, 1985). Executive Order 13272, ‘‘Proper
With this rule, DOE is establishing a III. Regulatory Procedures, Justification Consideration of Small Entities in
new subsection within 10 CFR for Final Rule. Agency Rulemaking,’’ 67 FR 53461
1047.4(a)(1) to add 18 U.S.C. 111 (August 16, 2002), DOE published
Administrative Procedure Act procedures and policies on February 19,
(‘‘Assaulting, resisting, or impeding
certain officers or employees’’) to the 2003, to ensure that the potential
Pursuant to authority at 5 U.S.C.
list of enumerated federal crimes for impacts of its rules on small entities are
553(b)(B), DOE finds good cause to
which DOE protective force officers that properly considered during the
waive the requirement to provide prior
are federal employees 1 may execute a rulemaking process. 68 FR 7990. DOE
notice and an opportunity for public
warrantless arrest. In relevant part, this has made its procedures and policies
comment for this rulemaking as such
statute criminalizes the activity of available on the Office of the General
procedures would be impracticable and
anyone who ‘‘forcibly assaults, resists, Counsel’s Web site (http://energy.gov/
contrary to the public interest. DOE
opposes, impedes, intimidates, or gc/office-general-counsel).
believes that this change is necessary to Because this rule is not subject to the
interferes with any person designated in ensure that Federal Agents may requirement that the agency provide
section 1114 of this title while engaged effectively protect ongoing shipments of prior notice and an opportunity for
in or on account of the performance of nuclear weapons, nuclear components public comment pursuant to 5 U.S.C.
official duties.’’ 18 U.S.C. 111. As and special nuclear materials in the 553, or any other law, the analytical
defined in 18 U.S.C. 1114, section 111 custody of DOE. Authorizing DOE requirements of the Regulatory
applies to actions taken against ‘‘any protective force officers to detain or Flexibility Act are inapplicable to this
officer or employee of the United States arrest individuals who impede the rulemaking. DOE notes that this final
or of any agency in any branch in the official duties of DOE protective force rule would empower DOE protective
United States Government (including personnel allows them to act quickly to force officers that are federal employees
any member of the uniformed services) disrupt situations that pose an existing to arrest individuals who violate 18
while such officer or employee is and ongoing threat to both the integrity U.S.C. 111 when such a violation
engaged in or on account of the of the property of the United States and involves the property of the United
performance of official duties, or any the ability of DOE to retain custody of States in the custody of DOE or a DOE
person assisting such an officer or such property. The extraordinary contractor. This rule is a matter of law
employee in the performance of such sensitivity of the cargo in the custody of enforcement procedure and does not
duties or on account of that assistance.’’ DOE warrants immediate action to impose any requirement on any small
Specifically, DOE is adding reference to reduce the risks to DOE Federal Agents’ entities.
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felony and misdemeanor violations of ability to carry out their protective
18 U.S.C. 111 at 10 CFR 1047(a)(1)(iii). function. Review Under the Paperwork Reduction
To retain consistency, DOE is also For the same reason, DOE finds good Act
1 All of the crimes currently listed in 10 CFR
cause pursuant to authority at 5 U.S.C. This rulemaking imposes no new
1047.4(a) (1) may serve as the basis for an arrest by
553(d)(3), to waive the requirement that information or record keeping
any DOE protective force officer, including those this rule be delayed in effective date 30 requirements. Accordingly, Office of
who are non-federal, contract employees. days after the date of publication. As Management and Budget clearance is

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 23691

not required under the Paperwork law or regulation; (3) provides a clear Act, 1999 (Pub. L. 105–277) requires
Reduction Act. 44 U.S.C. 3501 et seq. legal standard for affected conduct Federal agencies to issue a Family
while promoting simplification and Policymaking Assessment for any rule
Review Under the National
burden reduction; (4) specifies the that may affect family well-being. This
Environmental Policy Act of 1969
retroactive effect, if any; (5) adequately rule would not have any impact on the
Pursuant to the National defines key terms; and (6) addresses autonomy or integrity of the family as
Environmental Policy Act of 1969, DOE other important issues affecting clarity an institution. Accordingly, DOE has
has determined that this rule is covered and general draftsmanship under any concluded that it is not necessary to
under the Categorical Exclusion found guidelines issued by the Attorney prepare a Family Policymaking
in DOE’s National Environmental Policy General. Section 3(c) of Executive Order Assessment.
Act regulations at paragraph A.5 of 12988 requires Executive agencies to
Appendix A to Subpart D, 10 CFR part review regulations in light of applicable Review Under Executive Order 12630
1021, which applies to rulemakings standards in section 3(a) and section DOE has determined, under Executive
‘‘amending an existing rule or regulation 3(b) to determine whether they are met Order 12630, ‘‘Governmental Actions
that does not change the environmental or it is unreasonable to meet one or and Interference with Constitutionally
effect of the rule or regulation being more of them. DOE has completed the Protected Property Rights,’’ 53 FR 8859
amending.’’ The arrest authority of DOE required review and determined that, to (March 18, 1988), that this regulation
protective force officers has no the extent permitted by law; this final would not result in any takings that
significant impact on the environment. rule meets the relevant standards of might require compensation under the
Therefore, DOE does not need to Executive Order 12988. Fifth Amendment to the U.S.
prepare an Environmental Assessment Constitution.
or Environmental Impact Statement for Review Under the Unfunded Mandates
this rule. Reform Act of 1995 Review Under the Treasury and General
Title II of the Unfunded Mandates Government Appropriations Act, 2001
Review Under Executive Order 13132
Reform Act of 1995 (UMRA) requires
Executive Order 13132, ‘‘Federalism,’’ each Federal agency to assess the effects Section 515 of the Treasury and
64 FR 43255 (Aug. 10, 1999), imposes of Federal regulatory actions on State, General Government Appropriations
certain requirements on Federal local, and Tribal governments and the Act, 2001 (44 U.S.C. 3516, note)
agencies formulating and implementing private sector. Pub. L. 104–4, sec. 201 provides for Federal agencies to review
policies or regulations that preempt (codified at 2 U.S.C. 1531). For a most disseminations of information to
State law or that have Federalism proposed regulatory action likely to the public under guidelines established
implications. The Executive Order result in a rule that may cause the by each agency pursuant to general
requires agencies to examine the expenditure by State, local, and Tribal guidelines issued by OMB. OMB’s
constitutional and statutory authority governments, in the aggregate, or by the guidelines were published at 67 FR
supporting any action that would limit private sector of $100 million or more 8452 (Feb. 22, 2002), and DOE’s
the policymaking discretion of the in any one year (adjusted annually for guidelines were published at 67 FR
States and to carefully assess the inflation), section 202 of UMRA requires 62446 (Oct. 7, 2002). DOE has reviewed
necessity for such actions. The a Federal agency to publish a written today’s final rule under the OMB and
Executive Order also requires agencies statement that estimates the resulting DOE guidelines and has concluded that
to have a process of accountability to costs, benefits, and other effects on the it is consistent with applicable policies
ensure meaningful and timely input by national economy. 2 U.S.C. 1532(a), (b). in those guidelines.
State and local officials in the The UMRA also requires a Federal Review Under Executive Order 13211
development of regulatory policies that agency to develop an effective process
have Federalism implications. This to permit timely input by elected Executive Order 13211, ‘‘Actions
publication is intended to put both officers of State, local, and Tribal Concerning Regulations That
States and the general public on notice governments on a ‘‘significant Significantly Affect Energy Supply,
of this final rule. intergovernmental mandate,’’ and Distribution, or Use’’ 66 FR 28355 (May
requires an agency plan for giving notice 22, 2001), requires Federal agencies to
Review Under Executive Order 12988 prepare and submit to OIRA at OMB, a
and opportunity for timely input to
With respect to the review of existing potentially affected small governments Statement of Energy Effects for any
regulations and the promulgation of before establishing any requirements significant energy action. A ‘‘significant
new regulations, section 3(a) of that might significantly or uniquely energy action’’ is defined as any action
Executive Order 12988, ‘‘Civil Justice affect small governments. On March 18, by an agency that promulgates or is
Reform,’’ imposes on Federal agencies 1997, DOE published a statement of expected to lead to promulgation of a
the general duty to adhere to the policy on its process for final rule, and that: (1) Is a significant
following requirements: (1) eliminate intergovernmental consultation under regulatory action under Executive Order
drafting errors and ambiguity; (2) write UMRA. 62 FR 12820 (Mar. 18, 1997). 12866, or any successor order; and (2)
regulations to minimize litigation; and DOE’s policy statement is also available is likely to have a significant adverse
(3) provide a clear legal standard for at http://energy.gov/gc/office-general- effect on the supply, distribution, or use
affected conduct rather than a general counsel. This final rule contains neither of energy, or (3) is designated by the
standard and promote simplification an intergovernmental mandate nor a Administrator of OIRA as a significant
and burden reduction. 61 FR 4729 (Feb. mandate that may result in the energy action. For any significant energy
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7, 1996). Section 3(b) of Executive Order expenditure of $100 million or more in action, an agency must give a detailed
12988 specifically requires that any year, so the UMRA does not apply. statement of any adverse effects on
Executive agencies make every energy supply, distribution, or use
reasonable effort to ensure that the Review Under the Treasury and General should the proposal be implemented,
regulation: (1) Clearly specifies the Government Appropriations Act, 1999 and of reasonable alternatives to the
preemptive effect, if any; (2) clearly Section 654 of the Treasury and action and their expected benefits on
specifies any effect on existing Federal General Government Appropriations energy supply, distribution, and use.

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23692 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations

DOE has concluded that this the protective force officer or if he or Federal Deposit Insurance Corporation
regulatory action is not a significant she has reasonable grounds to believe corrects 12 CFR chapter III by revising
energy action because it is not likely to that the individual to be arrested has part 346 as set forth below:
have a significant adverse effect on the committed or is committing the felony.
supply, distribution, or use of energy, (c) Misdemeanor Arrest. A protective PART 346—DISCLOSURE AND
nor has it been designated as such by force officer is authorized to make an REPORTING OF CRA-RELATED
the Administrator at OIRA. Accordingly, arrest for any misdemeanor listed in AGREEMENTS
DOE has not prepared a Statement of paragraph (a)(1)(ii) or (a)(2)(ii) of this
Sec.
Energy Effects on the final rule. section if the offense is committed in 346.1 Purpose and scope of this part.
the presence of the protective force 346.2 Definition of covered agreement.
Congressional Notification officer. 346.3 CRA communications.
As required by 5 U.S.C. 801, DOE will * * * * * 346.4 Fulfillment of the CRA.
report to Congress on the promulgation 346.5 Related agreements considered a
[FR Doc. 2015–10042 Filed 4–28–15; 8:45 am]
of this rule prior to its effective date. single agreement.
BILLING CODE 6450–01–P 346.6 Disclosure of covered agreements.
The report will state that it has been
determined that the rule is not a ‘‘major 346.7 Annual reports.
rule’’ as defined by 5 U.S.C. 804(2). 346.8 Release of information under FOIA.
FEDERAL DEPOSIT INSURANCE 346.9 Compliance provisions.
IV. Approval of the Office of the CORPORATION 346.10 Transition provisions.
Secretary 346.11 Other definitions and rules of
12 CFR Part 346 construction used in this part.
The Office of the Secretary of Energy
has approved the issuance of this final RIN 3064–AE09 Authority: 12 U.S.C. 1831y.
rule.
Transferred OTS Regulations and PART 346—DISCLOSURE AND
List of Subjects in 10 CFR Part 1047 Regulations Regarding Disclosure and REPORTING OF CRA-RELATED
Government contracts, Law Reporting of CRA-Related Agreements AGREEMENTS
enforcement, Nuclear energy. § 346.1 Purpose and scope of this part.
AGENCY: Federal Deposit Insurance
Issued in Washington, DC, on March 23, Corporation. (a) General. This part implements
2015. section 711 of the Gramm-Leach-Bliley
ACTION: Final rule; correcting
Ernest J. Moniz, amendment. Act (12 U.S.C. 1831y). That section
Secretary. requires any nongovernmental entity or
SUMMARY: The Federal Deposit person, insured depository institution,
For the reasons set forth in the Insurance Corporation (‘‘FDIC’’) or affiliate of an insured depository
preamble, DOE is amending part 1047 of published a final rule in the Federal institution that enters into a covered
chapter X of title 10 of the Code of Register on July 21, 2014 (79 FR 42183), agreement to—
Federal Regulations, to read as set forth regarding Transferred OTS Regulations
below: (1) Make the covered agreement
Regarding Disclosure and Reporting of available to the public and the
PART 1047—LIMITED ARREST CRA-Related Agreements. This appropriate Federal banking agency;
AUTHORITY AND USE OF FORCE BY publication corrects a typographical and
PROTECTIVE FORCE OFFICERS error which caused the unintended (2) File an annual report with the
deletion of §§ 346.2 through 346.10. appropriate Federal banking agency
■ 1. The authority citation for part 1047 DATES: The correction is effective April concerning the covered agreement.
continues to read as follows: 29, 2015. (b) Scope of this part. The provisions
Authority: Sec. 2201, Pub. L. 83–703, 68 FOR FURTHER INFORMATION CONTACT: of this part apply to—
Stat. 919 (42 U.S.C. 2011 et seq.); Department Patience Singleton, Senior Policy (1) State nonmember insured banks;
of Energy Organization Act, Pub. L. 95–91, 91 Analyst, Division of Depositor and (2) Subsidiaries of state nonmember
Stat. 565 (42 U.S.C. 7101 et seq.). Consumer Protection, (202) 898–6859; insured banks;
■ 2. Section 1047.4 is amended by: Jennifer Maree, Counsel, Legal Division, (3) Nongovernmental entities or
■ a. Adding paragraph (a)(1)(iii); and (202) 898–6543; Richard M. Schwartz, persons that enter into covered
■ b. Revising paragraphs (b) and (c). Counsel, Legal Division, (202) 898– agreements with any company listed in
The addition and revisions read as 7424. paragraphs (b)(1), (2), (4) and (5) of this
follows: SUPPLEMENTARY INFORMATION: The
section.
Federal Deposit Insurance Corporation (4) State savings associations; and
§ 1047.4 Arrest authority. (5) Subsidiaries of State savings
(‘‘FDIC’’) is correcting a typographical
(a) * * * error in the final rule that published in associations.
(1) * * * (c) Relation to Community
the Federal Register on July 21, 2014
(iii) Assaulting, resisting, or impeding Reinvestment Act. This part does not
(79 FR 42183), which caused the
certain officers or employees—18 U.S.C. affect in any way the Community
unintended deletion of §§ 346.2 through
111. Both the felony and misdemeanor Reinvestment Act of 1977 (12 U.S.C.
346.10.
level offenses may only be enforced by 2901 et seq.) or the FDIC’s Community
protective force officers that are federal List of Subjects in 12 CFR Part 346 Reinvestment regulation found at 12
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employees. Banks and banking, Disclosure and CFR part 345, or the FDIC’s
* * * * * reporting of CRA-related agreements, interpretations or administration of that
(b) Felony Arrests. A protective force Savings associations. Act or regulation.
officer is authorized to make an arrest (d) Examples. (1) The examples in this
for any felony listed in paragraph Authority and Issuance part are not exclusive. Compliance with
(a)(1)(i) or (a)(2)(i) of this section if the For the reasons stated in the an example, to the extent applicable,
offense is committed in the presence of preamble, the Board of Directors of the constitutes compliance with this part.

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Document Created: 2015-12-16 08:26:15
Document Modified: 2015-12-16 08:26:15

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		The rule is effective on April 29, 2015.
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.
FR Citation		80 FR 23689
RIN Number		1994-AA03
CFR Associated		Government Contracts; Law Enforcement and Nuclear Energy