Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12271 

F. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Unfunded Mandates 

Reform Act addresses actions that may 

result in the expenditure by a State, 

local, or Tribal government, in the 

aggregate, or by the private sector of 

$100 million (adjusted for inflation) or 

more in any one year. This final rule 

will not result in such an expenditure. 

G. Executive Order 13175 (Tribal 

Consultation) 

This rule does not have Tribal 

Implications under Executive Order 

13175, ‘‘Consultation and Coordination 

with Indian Tribal Governments,’’ 

because it does not have a substantial 

direct effect on one or more Indian 

Tribes, on the relationship between the 

Federal Government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

H. Executive Order 13175 (Energy 

Impact Analysis) 

DHS has analyzed this rule under 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use.’’ DHS has 

determined that it is not a ‘‘significant 

energy action’’ under that Order and is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. Therefore, it does not require 

a Statement of Energy Effects under 

Executive Order 13211. 

List of Subjects in 6 CFR Part 37 

Document security, Driver’s licenses, 

Identification cards, Motor vehicle 

administrations, Physical security. 

The Amendments 

For the reasons set forth above, the 

Department of Homeland Security 

amends 6 CFR part 37 as follows: 

PART 37—REAL ID DRIVER’S 

LICENSES AND IDENTIFICATION 

CARDS 

■ 1. The authority citation for part 37 

continues to read as follows: 

Authority: 49 U.S.C. 30301 note 6 U.S.C. 

111, 112. 

§ 37.51 [Amended] 

■ 2. Amend § 37.51(a) by removing the 

date ‘‘May 11, 2011’’ and adding in its 

place the date ‘‘January 15, 2013.’’ 

Janet Napolitano, 

Secretary. 

[FR Doc. 2011–5002 Filed 3–4–11; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF ENERGY 

10 CFR Part 712 

RIN 1992–AZ00 

Human Reliability Program: 

Identification of Reviewing Official 

AGENCY: Department of Energy (DOE). 

ACTION: Final rule. 

SUMMARY: DOE is amending the Human 

Reliability Program (HRP) rule to 

designate the appropriate Under 

Secretary as the person with the 

authority to issue a final written 

decision to recertify or revoke the 

certification of an individual in the 

HRP. This action places decisional 

authority in the Under Secretary 

responsible for the operational 

functioning of the program in which the 

certification issue arises. It also 

streamlines internal procedures and 

facilitates timely final agency decisionmaking. This amendment modifies 

internal agency responsibilities but does 

not alter substantive rights or 

obligations under current law. 

DATES: Effective Date: This rule is 

effective on March 7, 2011. 

FOR FURTHER INFORMATION CONTACT: John 

Gurney, Office of the General Counsel, 

GC–53, 1000 Independence Avenue, 

SW., Washington, DC 20585; 

John.Gurney@hq.doe.gov; 202–586– 

8269; Dane Woodard, Office of 

Personnel Security, 1000 Independence 

Avenue, SW., Washington, DC 20585; 

Dane.Woodard@hq.doe.gov; 202–586– 

4148. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

Pursuant to the Atomic Energy Act of 

1954 (the AEA), the DOE owns, leases, 

operates or supervises activities at 

facilities in various locations in the 

United States. Many of these facilities 

are involved in researching, testing, 

producing, disassembling, or 

transporting nuclear explosives, which, 

when combined with Department of 

Defense delivery systems, become 

nuclear weapons systems. These 

facilities are often involved in other 

activities that affect the national 

security. Compromise of these and other 

DOE facilities would severely damage 

national security. To guard against such 

compromise, DOE established the 

Human Reliability Program (HRP), 10 

CFR part 712. 69 FR 3213 (January 23, 

2004). The HRP is designed to ensure 

that individuals who occupy positions 

affording unescorted access to certain 

materials, facilities, and programs meet 

the highest standards of reliability, as 

well as physical and mental suitability, 

through a system of continuous 

evaluation of those individuals. The 

purpose of this continuous evaluation is 

to identify, in a timely manner, 

individuals whose judgment may be 

impaired by physical or mental/ 

personality disorders; the use of illegal 

drugs or the abuse of legal drugs or 

other substances; the abuse of alcohol; 

or any other condition or circumstance 

that may represent a reliability, safety, 

or security concern. 

The HRP requires that all individuals 

who work in positions affording 

unescorted access to certain materials, 

facilities, and programs be certified as 

meeting the highest standards of 

reliability and physical and mental/ 

personality suitability before such 

access may be granted. 

Under current regulations, an 

individual’s HRP certification is subject 

to immediate review in the event a 

supervisor has a reasonable belief that 

the individual is not reliable, based on 

either a safety or security concern (10 

CFR 712.19(a)). During the pendency of 

the review, the individual will be 

removed from assigned HRP duties. 

This temporary removal is an interim, 

precautionary action and does not 

constitute a determination of reliability 

or access authorization status. If the 

removal is based on a general security 

concern, 10 CFR 712.19 provides for 

resolution under 10 CFR part 710, 

subpart A (General Criteria and 

Procedures for Determining Eligibility 

for Access to Classified Matter or 

Special Nuclear Material). Individuals 

who are removed from HRP duties for 

reasons not related to general security 

concerns (e.g., reliability) are entitled to 

resolve these issues through a formal 

procedure outlined in 10 CFR 712.19 

through 712.23. The part 712 

regulations require that the individual 

be given a written statement of the 

issues, an opportunity to respond, 

including an opportunity for a hearing 

before a DOE Office of Hearings and 

Appeals hearing officer, and an 

opportunity to have the opinion of the 

hearing officer reviewed at a higher 

level before a final determination is 

made. 

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12272 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

As promulgated in 2004, the existing 

part 712 rule designates the Deputy 

Secretary as the person responsible for 

conducting the review of the hearing 

officer’s opinion and the Director, Office 

of Security’s recommendation, and 

issuing a final written decision. This 

designation has proved to be 

impracticable, as the responsibility to 

review the entire record of every HRP 

certification suspension proceeding 

conducted before DOE’s Office of 

Hearings and Appeals imposes an 

undue burden upon the Department’s 

second highest-ranking official, given 

the substantial number and nature of the 

Deputy Secretary’s responsibilities for 

the management of the Department. 

Consequently, to relieve this burden, 

promote administrative efficiency, and 

facilitate prompt resolution of HRP 

certification suspension cases, DOE is 

amending the HRP rule to assign the 

responsibility for reviewing the 

recommendation of the Chief Health, 

Safety, and Security Officer to the 

particular Under Secretary with 

cognizance over the program which 

makes the HRP certification in question. 

The amendment will streamline internal 

procedures, and more closely align the 

final agency decision in HRP 

certification suspension cases with the 

responsibilities of the relevant 

secretarial officer. 

None of the regulatory amendments in 

this final rule alter substantive rights or 

obligations under current law. 

This final rule has been approved by 

the Office of the Secretary of Energy. 

II. Procedural Requirements 

A. Review Under Executive Order 12866 

Today’s regulatory action has been 

determined not to be ‘‘a significant 

regulatory action’’ under Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ 58 FR 51735 (October 4, 1993). 

Accordingly, this action was not subject 

to review under that Executive Order by 

the Office of Information and Regulatory 

Affairs of the Office of Management and 

Budget (OMB). 

B. Administrative Procedure Act 

The regulatory amendments in this 

notice of final rulemaking reflect a 

transfer of function that relates solely to 

internal agency organization, 

management or personnel. As such, 

pursuant to 5 U.S.C. 553(a)(2), this rule 

is not subject to the rulemaking 

requirements of the Administrative 

Procedure Act, including the 

requirements to provide prior notice 

and an opportunity for public comment 

and a 30-day delay in effective date. 

C. 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 to ensure that 

the potential impacts of its draft rules 

on small entities are properly 

considered during the rulemaking 

process (68 FR 7990, February 19, 2003), 

and has made them available on the 

Office of General Counsel’s Web site: 

http://www.gc.doe.gov. 

As this rule of agency organization, 

management and personnel is not 

subject to the requirement to provide 

prior notice and an opportunity for 

public comment under 5 U.S.C. 553 or 

any other law, this rule is not subject to 

the analytical requirements of the 

Regulatory Flexibility Act. 

D. Review Under the Paperwork 

Reduction Act 

This final rule does not impose a 

collection of information requirement 

subject to the Paperwork Reduction Act 

(44 U.S.C. 3501 et seq.). 

E. Review Under the National 

Environmental Policy Act 

DOE has concluded that promulgation 

of this rule falls into a class of actions 

that would not individually or 

cumulatively have a significant impact 

on the human environment, as 

determined by DOE’s regulations 

implementing the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.). Specifically, this 

rule amends existing regulations 

without changing the environmental 

effect of the regulations being amended, 

and, therefore, is covered under the 

Categorical Exclusion in paragraph A5 

of Appendix A to subpart D, 10 CFR 

part 1021. 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 examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. The Executive Order 

also requires agencies to have an 

accountable process to ensure 

meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications. On March 14, 2000, DOE 

published a statement of policy 

describing the intergovernmental 

consultation process it will follow in the 

development of such regulations (65 FR 

13735). DOE has examined today’s rule 

and has determined that it does not 

preempt State law and 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 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4729, February 7, 1996), 

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. 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. 

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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12273 

H. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to assess 

the effects of a Federal regulatory action 

on State, local, and tribal governments, 

and the private sector. DOE has 

determined that today’s regulatory 

action does not impose a Federal 

mandate on State, local or tribal 

governments or on the private sector. 

I. 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. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516, note) provides for 

agencies to review most disseminations 

of information to the public under 

guidelines established by each agency 

pursuant to general guideline issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (February 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (October 7, 2002). DOE has 

reviewed today’s rule under the OMB 

and DOE guidelines and has concluded 

that it is consistent with applicable 

policies in those guidelines. 

K. 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 

promulgated 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 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 alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

Today’s regulatory action is not a 

significant energy action. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects. 

L. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

submit to Congress a report regarding 

the issuance of today’s final rule. 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). 

Issued in Washington, DC, on February 28, 

2011. 

Scott Blake Harris, 

General Counsel. 

For the reasons stated in the 

preamble, part 712 of chapter III of title 

10, Code of Federal Regulations, is 

amended as set forth below: 

PART 712—HUMAN RELIABILITY 

PROGRAM 

■ 1. The authority citation for part 712 

continues to read as follows: 

Authority: 42 U.S.C. 2165; 42 U.S.C. 2201; 

42 U.S.C. 5814–5815; 42 U.S.C. 7101 et seq.; 

50 U.S.C. 2401 et seq.; E.O. 10450, 3 CFR 

1949–1953 Comp., p. 936, as amended; E.O. 

10865, 3 CFR 1959–1963 Comp., p. 398, as 

amended; 3 CFR Chap. IV. 

§ 712.12 [Amended] 

■ 2. Section 712.12(d) is amended by 

removing ‘‘Deputy Secretary’’ and 

adding in its place ‘‘Under Secretary 

with cognizance over the program 

which makes the HRP certification at 

issue (hereinafter ‘cognizant Under 

Secretary’), in consultation with the 

DOE General Counsel’’. 

§ 712.22 [Amended] 

■ 3. Section 712.22 is amended by 

removing ‘‘Deputy Secretary’’ and 

adding in its place ‘‘cognizant Under 

Secretary’’. 

■ 4. Section 712.23 is amended by 

revising the section heading to read as 

set forth below, and in the first sentence 

by removing ‘‘Deputy Secretary’’ and 

adding in its place ‘‘cognizant Under 

Secretary, in consultation with the DOE 

General Counsel’’. 

§ 712.23 Final decision by DOE Under 

Secretary. 

* * * * * 

[FR Doc. 2011–5046 Filed 3–4–11; 8:45 am] 

BILLING CODE 6450–01–P 

SMALL BUSINESS ADMINISTRATION 

13 CFR Part 124 

RIN 3245–AF53 

8(a) Business Development Program 

Regulation Changes; Tribal 

Consultation 

AGENCY: U.S. Small Business 

Administration 

ACTION: Notice of tribal consultation 

meeting; request for comments. 

SUMMARY: The U.S. Small Business 

Administration (SBA or Agency) 

announces that it is holding a tribal 

consultation meeting in Las Vegas, 

Nevada to discuss the recent changes to 

the 8(a) Business Development (BD) 

program regulations and take general 

comments on 8(a) BD program 

provisions. Additionally, SBA will take 

comments on the mandatory reporting 

of community benefits of provision 13 

CFR 124.604. Testimony presented at 

this tribal consultation meeting will 

become part of the administrative record 

for SBA’s consideration when the 

Agency deliberates on approaches to 

tracking community benefits. 

DATES: The tribal consultation meeting 

will be held on Thursday, March 17, 

2011 from 1 p.m. to 3 p.m. at the 

Reservation Economic Summit (RES) 

Conference in the Las Vegas Hilton, Las 

Vegas, Nevada. 

The tribal consultation meeting preregistration deadline date is March 10, 

2011 at 5 p.m. (Eastern Standard Time). 

ADDRESSES: 

1. The Las Vegas Tribal Consultation 

Meeting address is the Las Vegas Hilton, 

3000 Paradise Road, Las Vegas, NV 

89109. 

2. Send pre-registration requests to 

attend and/or testify to Mr. Marcus 

Grignon, Office of Native American 

Affairs, U.S. Small Business 

Administration, 409 Third Street, SW., 

Washington, DC 20416; by e-mail to 

marcus.grignon@sba.gov; or by facsimile 

to (202) 481–6386. 

3. Send all written comments to Ms. 

LaTanya Wright, Senior Advisor, Office 

of Business Development, U.S. Small 

Business Administration, 409 3rd Street, 

SW., Washington, DC 20416; 

BDRegs@sba.gov or by facsimile to (202) 

481–2740. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on SBA’s Final Rule 

WReier-Aviles on DSKGBLS3C1PROD with RULES