Appendix B to Subpart B of Part 1046 - Training and Qualification for Security Skills and Knowledge

A. Applicability. This appendix B to subpart B of part 1046 specifies performance oriented requirements for the security training and qualification of DOE contractor security officers and security police officers, including Special Response Team members.

B. Training and Qualifications.

(1) DOE contractors responsible for protective force personnel will establish formal qualification requirements to ensure the competencies needed by protective force members to perform the tasks required to fulfill their assigned responsibilities. The qualification requirements will be supported by a formal training program which develops and maintains, in an effective and efficient manner, the knowledge, skills and abilities required to perform assigned tasks. The qualification and training programs will be based upon criteria established by the National Training Center and approved by the Chief Health, Safety and Security Officer, in coordination with program offices. The formal qualification and training program shall:

(a) Be based on a valid and complete set of job tasks, with identified levels of skills and knowledge needed to perform the tasks;

(b) Be aimed at achieving a well-defined, minimum level of competency required to perform each task acceptably;

(c) Employ standardized lesson plans with clear performance objectives as a basis for instruction;

(d) Include valid performance-based testing to determine and certify job readiness (i.e. qualification);

(e) Be documented so that individual and overall training status is easily accessible. Individual training records shall be retained until 1 year after termination of the employee as a member of the protective force, unless a longer retention period is specified by other requirements.

(2) DOE contractors responsible for training protective force personnel shall prepare and review annually a task analysis detailing all of the required actions for a specific job assignment. The task analysis shall be used to prepare a job description and as a basic input document for local training requirements and be approved by the Head of the Field Element.

(3) Security Officers.

(a) Training requirements. Prior to initial assignment to duty, each security officer shall successfully complete a basic training course designed to provide the minimum level of skills and knowledge needed to competently perform all tasks associated with security officer job responsibilities. The required tasks and minimum levels of competency shall be determined by a site-specific job analysis, but will include task areas found in paragraph (3)(c) of this appendix as appropriate. The training program will be approved by the Head of the Field Organization and where applicable will include, but not necessarily be limited to, the following types of instruction:

1. Orientation/standards of conduct;

2. Security education/operations and material control and accountability;

3. Safety training;

4. Legal requirements and responsibilities;

5. Weaponless self-defense;

6. Intermediate force weapons;

7. Communications;

8. Vehicle operations; and

9. Post and patrol operations.

(b) Refresher Training. Each security officer will successfully complete a course of refresher training at least every 12 months to maintain the minimum level of competency required for the successful performance of tasks associated with security officer job responsibilities. The type and intensity of training shall be based on a site-specific job analysis and will be approved by the Head of the Field Organization. Failure to achieve a minimum level of competency shall result in the security officer's placement in a remedial training program. The remedial training program will be tailored to provide the security officer with the necessary training to afford a reasonable opportunity to meet the level of competency required by the job analysis. Failure to demonstrate competency at the completion of the remedial program shall result in loss of security officer status.

(c) Knowledge, Skills and Abilities. Each security officer shall possess the skills necessary to protect DOE security interests from theft and other acts that may cause adverse impacts on national security or the health and safety of the public. The requirements for each security officer to demonstrate proficiency, familiarity, knowledge, skills, and abilities of the responsibilities identified in the job analysis include, but are not limited to:

1. Procedures for conducting physical checks of repositories containing classified matter;

2. Operation of all vehicles as required by duty assignment;

3. Site and facility policies and procedures governing the security officer's role in site protection;

4. Federal and state-granted authority applicable to assigned activities and relative responsibilities between the protective force and other law enforcement agencies;

5. Post or patrol operations including:

a. Access control systems, procedures and operation b. Contraband detection c. Search techniques for persons, packages and vehicles d. Badging and escort responsibilities e. Familiarity and recognition of various types of sensitive matter being protected including the normal location, routine uses, and movements of the material at the duty post f. Incident reporting g. Methods of weaponless self defense

(4) Security Police Officers.

(a) Training requirements. Prior to initial assignment to duty, each security police officer shall successfully complete a basic training course designed to provide the minimum level of skills and knowledge needed to competently perform all tasks associated with security police officer job responsibilities. The required tasks and minimum levels of competency will be based on a site-specific job analysis, but will include task areas found in paragraph (4)(c) of this appendix as appropriate. The training program will be approved by the Head of the Field Organization and where applicable will include, but not necessarily be limited to, the following types of instruction:

1. Firearms training; 2. Orientation/standards of conduct; 3. Physical training; 4. Security education/operations and material control and accountability; 5. Safety training; 6. Legal requirements and responsibilities; 7. Tactical training; 8. Weaponless self-defense; 9. Intermediate force weapons; 10. Communications; 11. Vehicle operations; and 12. Post and patrol operations.

(b) Refresher Training. Each security police officer shall successfully complete a course of refresher training at least every 12 months to maintain the minimum level of competency required for the successful performance of tasks associated with security police officer job responsibilities. The type and intensity of training will be determined by a site-specific job analysis and will be approved by the Head of the Field Organization. Failure to achieve a minimum level of competency will result in the security police officer's placement in a remedial training program. The remedial training program will be tailored to provide the security police officer with the necessary training to afford a reasonable opportunity to meet the level of competency required by the job analysis. Failure to demonstrate competency at the completion of the remedial program shall result in loss of security police officer status.

(c) Knowledge, Skills and Abilities. Each security police officer shall possess the individual and team skills necessary to enable that security police officer to protect DOE security interests from theft, sabotage, and other acts that may cause adverse impacts on national security or the health and safety of the public and to protect life and property. The requirements for each security police officer to demonstrate proficiency, familiarity, knowledge, skills, and abilities of the responsibilities identified in the job analysis include, but are not limited to:

1. Knowledge and proficiency in the use and care of all weapons as required by duty assignment;

2. Operation of all vehicles as required by duty assignment;

3. Operation of all communication equipment as required by duty assignment;

4. Knowledge of and the ability to apply site and facility policies and procedures governing the security police officer's role in site protection;

5. Knowledge of Federal and state-granted authorities applicable to assigned activities and the relative responsibilities between the protective force and local law enforcement agencies in both normal and emergency operations.

6. Knowledge of and the ability to apply DOE policy on the use of deadly force and limited arrest authority as set forth in 10 CFR part 1047;

7. Proficiency in post and patrol operations including:

a. Access control systems, procedures and operation b. Contraband detection c. Search techniques and systems for individuals, packages and vehicles d. Badging and escort responsibilities e. Response to and assessment of alarm annunciations and other indications of intrusion f. Familiarity and recognition of various types of sensitive matter being protected including the normal location, routine uses, and movements of the material at the assigned duty post g. Observation and physically checking buildings, rooms and repositories containing classified matter h. Incident reporting i. Response to civil disturbances (e.g., strikes, demonstrators) j. Methods of self-defense and of arrest and detention k. Basic procedures and elements of investigations l. Tactical skills

(5) Special Response Team.

(a) Training requirements. Prior to initial assignment to duties as a Special Response Team member, a security police officer shall successfully complete a basic training course designed to provide the minimum level of skills and knowledge needed to competently perform all tasks associated with Special Response Team job responsibilities. The required tasks and minimum levels of competency will be based on a site-specific job analysis, but will include the task areas identified for security police officers and specialized task areas found in paragraph (5)(c) of this appendix as appropriate. The training program will be approved by the Head of the Field Organization.

(b) Refresher Training. Each security police officer assigned as a Special Response Team member will successfully complete a course of refresher training at least every 12 months to maintain the minimum level of competency required for the successful performance of tasks associated with security police officer and Special Response Team job responsibilities. The type and intensity of training will be determined by a site-specific job analysis and will be approved by the Head of the Field Organization.

(c) Knowledge, Skills and Abilities. Special Response Team members will be security police officers with special training and shall possess the individual and team skills to provide additional protection capability as demanded by the particular targets, threats and vulnerabilities existing at their assigned DOE facilities. In addition to security police officer requirements, the requirements for each Special Response Team member to demonstrate proficiency, familiarity, knowledge, skills, and abilities of the responsibilities identified in the job analysis include, but are not limited to:

1. Operate as a member of a mobile disciplined response team to engage and defeat adversaries as defined by the approved threat guidance for the facility.

2. Provide and operate special weapons and other equipment which may be necessary to protect a particular facility or to effectively engage an adversary with advanced capabilities.

3. Operate from special tactical vehicles which may be necessary for the protection of a particular facility.

(6) Specialized Requirements. Each person who is assigned specialized responsibilities outside the scope of normal security police officer and Special Response Team duties shall successfully complete the appropriate basic and required periodic training. This training will enable the individual to achieve and maintain the minimum level of skill and knowledge needed to competently perform the tasks associated with the specialized job responsibilities, as well as maintain mandated certification, if applicable. Such personnel include, but are not limited to, flight crews, instructors, armorers, Central Alarm System operators, crisis negotiators, investigators, canine handlers, and law enforcement specialists. The scope of such duties will be based on site-specific needs.

(7) Supervisors.

(a) Training Requirements. Protective force personnel who are assigned supervisory responsibilities shall successfully complete the appropriate basic and annual training necessary to achieve and maintain the minimum level of skill and knowledge needed to competently perform their supervisory job responsibilities. The required tasks and minimum levels of competency will be based on a site-specific job analysis and the specialized task areas found in paragraph (7)(b) of this appendix as appropriate.

(b) Knowledge, Skills and Abilities. Each supervisor shall possess the skills necessary to effectively direct the actions of assigned personnel to protect DOE security interests from theft and other acts that may cause adverse impacts on national security or the health and safety of the public. The requirements for each supervisor to demonstrate proficiency, familiarity, knowledge, skills, and abilities of the responsibilities identified in the job analysis include, but are not limited to:

1. Knowledge of the duties and qualifications of all supervised personnel;

2. Familiarity with the basic operating functions of facilities for which the supervisor has protection responsibilities;

3. Assurance that subordinates and their equipment are ready for duty at the start of each duty shift and the inspection of each duty post at least twice per shift, personally or by other means;

4. Assurance that all duty logs and reports have been properly completed, distributed, and acted upon.

(8) Training Exercises. Exercises of various types will be included in the training process for the purposes of achieving and maintaining skills and assessing individual and team competency levels. The types and frequency of training exercises are to be determined by the Head of the Field Organization or by the training needs analysis conducted as part of the training program. The training program will include as a minimum, the following:

(a) General. At least monthly, exercises shall be conducted involving each shift. These exercises are to be planned so as to exercise the protective force's ability to prevent the successful completion of those adversarial acts defined in the approved site-threat statement.

(b) Special Response Teams. Personnel assigned Special Response Team responsibilities shall participate in exercises at least monthly. Such exercises will involve the type of situations and scenarios appropriate to site-specific conditions.

(c) Local Law Enforcement Agencies. Protective forces shall request the FBI and local law enforcement agencies that would assist the protective force during an incident to participate in exercises at least annually.

(d) Records of each training exercise shall be prepared for management review and planning and retained for a period of 1 year, unless a longer retention period is specified by other requirements.

(9) Firearms Qualification Standards.

(a) No persons shall be authorized to carry a firearm as a security police officer until the responsible Head of the Field Organization is assured that the individual who is to be armed is qualified in accordance with firearms standards.

(b) As a minimum, each security police officer shall meet the applicable firearms qualification standards every 6 months. The local DOE field office shall permit the qualification to be accomplished any time prior to the actual 6 month requalification date. The actual qualification date will serve to establish a new requalification date for firearms qualification.

(c) The DOE expects that protective force personnel will maintain firearms proficiency on a continuing basis. Therefore, in the case of a headquarters or field audit, or other situation directed by the Head of the Field Element, a security police officer may be required to demonstrate the ability to meet qualification standards. Failure to meet the performance standard will be treated as if the individual failed the first attempt during routine semiannual qualification. In this event the requirements of paragraphs (h), (i) and (j) of part 9 of appendix B subpart B will be followed.

(d) Each security police officer shall qualify with all weapons required by duty assignment. Each security police officer shall be required to qualify with each firearm as indicated in the DOE requirements of the DOE qualification courses.

(e) Each security police officer shall qualify with the same type of firearm and ammunition equivalent in trajectory and recoil as used while on duty. This ammunition shall be listed on the DOE approved ammunition list.

(f) Each security police officer shall be given a basic principles of firearms safety presentation prior to any range activity. This does not require that a firearms safety presentation be given for each course of fire, but does require that prior to the start of range training or qualification for a given period (e.g., initial qualification, semiannual (every 6 months) qualification, training or range practice) each security police officer shall be given a range safety presentation.

(g) Only courses of fire approved by the Chief Health, Safety and Security Officer as standardized DOE qualification courses, shall be used for firearms qualification.

(h) Security police officers shall be allowed two initial attempts to qualify semiannually. A Range Master or other person in charge of the range will state to security police officer(s) on the firing line that “THIS IS A QUALIFYING RUN.” Once this statement is made by the Range Master or person in charge, “this qualifying run” will constitute a qualification attempt. Each security police officer will be provided two qualifying attempts. The security police officer shall qualify during one of these attempts.

(i) Failure to qualify shall result in suspension of a security police officer's authority under section 161.k. of the Atomic Energy Act of 1954, as amended, to carry firearms and to make arrests. The security police officer will then enter a standardized, remedial firearms training program developed by the National Training Center and approved by DOE. The remedial firearms training program will be a combination of basic weapon manipulation skills, firearms safety, and an additional segment of time tailored to provide the security police officer with the necessary individual training to afford a reasonable opportunity to meet the firearms qualification standards.

(j) Any security police officer who, upon completion of the remedial training course, fails to qualify after two subsequent, additional attempts shall lose the security police officer status and his authority to carry firearms and to make arrests under section 161.k. of the Atomic Energy Act of 1954.

(k) Any security police officer who requires remedial training on three (3) consecutive semiannual qualification periods, with the same firearm, shall lose security police officer status.

(l) An appropriate DOE record shall be maintained for each security police officer who qualifies or who attempts to qualify. Records will be retained until 1 year after separation of a protective force officer from security police officer duties, unless a longer retention period is specified by other requirements. A supervisor or the training officer will be designated in writing as the individual authorized to certify the validity of the scores.

Effective Date Note:

At 78 FR 55184, Sept. 10, 2013, part 1046 was revised, effective Mar. 10, 2014. For the convenience of the user, the revised text is set forth as follows:

PART 1046—MEDICAL, PHYSICAL READINESS, TRAINING, AND ACCESS AUTHORIZATION STANDARDS FOR PROTECTIVE FORCE PERSONNEL (Eff. 3-10-14)Subpart A—GeneralSec.1046.1Purpose.1046.2Scope.1046.3Definitions.1046.4Physical Protection Medical Director (PPMD).1046.5Designated Physician.Subpart B—Protective Force (PF) Personnel1046.11Essential functions of PF positions.1046.12Medical, physical readiness, and training requirements for PF personnel.1046.13Medical certification standards and procedures.1046.14Medical certification disqualification.1046.15Review of medical certification disqualification.1046.16SPO physical readiness qualification standards and procedures.1046.17Training standards and procedures.1046.18Access authorization.1046.19Medical and fitness for duty status reporting requirements.1046.20Medical records maintenance requirements.Authority:

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

Subpart A—General

§ 1046.1Purpose.

This part establishes the medical, physical readiness, training and performance standards for contractor protective force (PF) personnel who provide security services at Department of Energy (DOE or Department) facilities including the National Nuclear Security Administration (NNSA). DOE and NNSA may choose to incorporate elements of these standards into Federal protective force programs.

§ 1046.2Scope.

(a) This part applies to DOE, including NNSA, contractor employees and applicants for contractor protective force positions at government-owned or government leased facilities, regardless of whether the facility is privately operated. This part provides for the establishment of physical security programs based on uniform standards for medical, physical performance, training, and access authorizations for PF personnel providing physical security services to the Department.

(b) Use of a single, suitably qualified individual is encouraged when it is operationally, fiscally, or otherwise appropriate to perform multiple roles as required in this part (e.g., Designated Physician and Physical Protection Medical Director (PPMD)). Similarly, when appropriate medical, psychological, or other examinations, evaluations, testing, or reports required by other DOE regulations can be used to satisfy the requirements of multiple parts of this title, nothing in this part is intended to require duplicative examinations, evaluations, testing, or reports as long as the requirements of this part are met.

(c) The Department is authorized to grant such exemptions from the requirements of this part as it determines are authorized by law. Exemptions may not be granted from the requirement to meet any essential function of a position notwithstanding that reasonable accommodation must be granted as required by this part and the Americans with Disabilities Act of 1990 (ADA), as amended by the Americans with Disabilities Act Amendment Act of 2009 (ADAAA), and its implementing regulations. Exemptions from requirements other than the medical certification standards are allowed only on a case-by-case basis for a specific requirement covered under this part. The Department must document that the exemption will not endanger life or property or the common defense and security, and is otherwise in the public interest. Consistent with the exemption process specified by DOE, exemptions must be made from this part in consultation with the Chief Health, Safety and Security Officer and approved by the Secretary, Deputy Secretary, or for the National Nuclear Security Administration, the Administrator. Granting of equivalencies is not authorized. Nothing in this part shall prohibit NNSA from enhancing the requirements set forth in § 1046.16, SPO Physical Readiness Qualification Standards and Procedures, as necessary to further the interests of national security.

(d) Requests for technical clarification of the requirements of this part by organizations or individuals affected by its requirements must be made in writing through the appropriate program or staff offices of the Department. Such requests must be coordinated with the Office of Health, Safety and Security or its successor organization. The Office of Health, Safety and Security is responsible for providing a written response to such requests. Requests for interpretations of the requirements of this part may be made to the General Counsel. The General Counsel is responsible for providing responses to such requests.

(e) This part is effective March 10, 2014. Requirements of this rule that cannot be implemented by March 10, 2014 due to contractual conflicts or within existing resources must be documented by the officially designated federal security authority (ODFSA) and submitted to the relevant program officers: the Under Secretary; the Under Secretary for Science or the Under Secretary for Nuclear Security, NNSA; and the Chief Health, Safety and Security Officer. The documentation must include timelines and resources needed to fully implement this part.

§ 1046.3Definitions.

The following definitions apply to this part:

Active shooter means an individual actively engaged in the unauthorized killing or attempting to kill a person or persons in a confined and populated area.

Advanced Readiness Standard (ARS) means a qualification standard that includes the requirements of the Fixed Post Readiness Standard (FPRS), but also requires the completion of a one mile run with a maximum qualifying time of 8 minutes 30 seconds, a 40-yard dash from the prone position in 8.0 seconds or less, and any other measure of physical readiness necessary to perform site-specific essential functions as prescribed by site management and approved by the respective program office. This standard applies to SPOs who staff security posts that normally require extensive tactical movement on foot or are assigned Special Response Team duties.

Applicant means a person who has applied for and been conditionally offered a position as a Security Officer (SO) or a Security Police Officer (SPO), but who has not yet begun the active SO or SPO duties for which the person has applied.

Basic Readiness Standard (BRS) means a qualification standard that includes the requirements of the FPRS, but also requires the completion of a one-half mile run with a maximum qualifying time of 4 minutes, 40 seconds, a 40-yard dash from the prone position in 8.5 seconds or less, and any other measure of physical readiness necessary to perform site-specific essential functions as prescribed by site management and approved by the respective program office. This standard applies to SPOs with mobile defensive duties in support of facility protection strategies.

Chief Medical Officer means a Federal employee who is a doctor of medicine (MD) or doctor of osteopathic medicine (DO) who is licensed without restriction and qualified in the full range of occupational medicine services employed by the Department's health, safety, and security programs. This individual provides technical support for these programs and must be identified in writing.

Contractor means a contractor for the Department and includes subcontractors at all tiers.

Corrective device means a device, such as eyeglasses or hearing aid, necessary to enable an examinee to meet medical qualification standards and have been determined to be a reasonable accommodation compatible with the performance of the essential functions of the position. The contractor responsible for the performance of the examinee must determine that the use of the device is compatible with all actions associated with emergency and protective equipment without creating a hardship for the contractor. The Designated Physician and PPMD must determine that the reasonable accommodation is consistent with the medical certification standards without creating a direct threat to the individual or to others.

Designated Physician means an MD or DO, licensed without restriction in the state of practice, who has been approved by the PPMD. The Office of Health, Safety and Security must be consulted regarding an individual's suitability prior to appointment as a Designated Physician.

Direct threat means a significant risk of substantial harm to the health or safety of the individual or others. The risk must be based on an assessment of the individual's present ability to perform safely the essential functions of the job, and it must be determined that the risk cannot be eliminated or reduced by reasonable accommodation.

DOE facility means any facility required by DOE to employ PF personnel and used by DOE, including NNSA, and its contractors for the performance of work under DOE jurisdiction.

Emergency conditions are those conditions that could arise at a DOE facility as a result of a breach of security (e.g., sabotage or terrorism), accident (e.g., fire or explosion), or naturally occurring event (e.g., storm or earthquake) and threaten the security or integrity of DOE facilities, assets, personnel, the environment or the general public. For the purposes of this rule, emergency conditions include PF drills and exercises relating to search, rescue, crowd control, fire suppression and special operations, including response to the scene of the incident, and all applicable PF functions performed at the scene.

Essential functions of the job are the fundamental job duties of PF members as set out in § 1046.11.

Field element means the management and staff elements of DOE, including NNSA, with delegated responsibility for oversight and program management of major facilities, programs, and site operations.

Final review means the process for an individual disqualified from medical certification to have a second and ultimate review of the individual's case conducted by the DOE Office of Hearings and Appeals.

Fixed Post Readiness Standard (FPRS) means a standard that requires an SPO to demonstrate the ability to assume and maintain the variety of cover positions associated with effective use of firearms at entry portals and similar static environments to include prone, standing, kneeling, and barricade positions; to use site-specific intermediate force weapons and weaponless self-defense techniques; to effect arrest of suspects and place them under restraint, e.g., with handcuffs or other temporary restraint devices; and any other measure of physical readiness necessary to perform site-specific essential functions as prescribed by site management and approved by the respective program office.

Independent Physician means a physician who possesses an MD or DO degree, is licensed without restriction and board certified, and has experience in a relevant field of medicine. The Independent Physician must not have served as the requestor's personal physician in any capacity or have been previously involved in the requestor's case on behalf of the Department or a Department contractor.

Independent review means the process through which a medically disqualified individual may appeal to have an independent review of the individual's case conducted by an Independent Physician.

Job analysis (JA) is a systematic method used to obtain a detailed listing of the tasks of a specific job. JAs must be derived from criteria determined and published by the DOE National Training Center or identified and documented through a site-specific Mission Essential Task List (METL)-based process based on a set of Departmental Nuclear Security Enterprise-wide standards. A METL-based process that identifies and formally documents duties, tasks, and sub-tasks to be trained is commensurate with the process to develop JAs.

Medical approval means a determination by a Designated Physician that an individual is medically cleared to attempt the physical readiness standard qualification test and perform SO or SPO duties.

Medical certification means a determination by a Designated Physician approved by the PPMD that an individual is medically qualified for a particular category of PF positions, including the performance of the essential functions of an SO or SPO, and the required ongoing physical readiness training.

Medical certification disqualification means a determination by a Designated Physician and approved by the PPMD that an individual, with or without reasonable accommodation, is unable to perform the essential functions of an SO or SPO job position, including the required physical readiness training, without creating a direct threat to that individual or others.

Medical evaluation means the analysis of information generated by medical examinations and psychological evaluations and assessments of an individual to determine medical certification.

Medical examination means an examination performed or directed by the Designated Physician that incorporates the components described in § 1046.13.

Mission Essential Task List (METL) means a list of common tasks required for PF assignments based on site-specific protection plans to defend against adversary capabilities as defined by DOE.

Officially Designated Federal Security Authority (ODFSA) means the Departmental Federal authority at the Field or Headquarters (HQ) Element with the primary and delegated responsibility for oversight of a site PF. Also may be referred to as the Department or Federal cognizant security authority.

Pertinent negative means the absence of a sign or symptom that helps substantiate or identify a patient's condition.

Physical Protection Medical Director (PPMD) means the physician programmatically responsible for the overall direction and operation of the site medical program supporting the requirements of this part.

Primary weapon as used in this part means any weapon individually assigned or available at the majority of posts/patrols to which the SPO may be assigned.

Protective Force (PF) personnel means Special Response Team members, SPOs, and SOs employed to protect Department security interests.

Qualification means the documented determination that an individual meets the applicable medical, physical, and as appropriate, firearms training standards, and possesses the knowledge, skills, abilities and access authorizations required for a particular SO or SPO position.

Randomly selected means any process approved by the ODFSA, which ensures each member of the SPO population has an equal chance to be chosen every time the selection process is used.

Reasonable accommodation means an accommodation consistent with the Americans with Disabilities Act Amendment Act (ADAAA) that is documented in writing.

Re-qualification date means the date of expiration of current qualification at which demonstration of knowledge, skills and/or abilities is required to maintain specific job status.

Security interests include any Department asset, resource or property which requires protection from malevolent acts and/or unpermitted access. These interests may include (but are not limited to) Department and contractor personnel; sensitive technology; classified matter; nuclear weapons, components, and assemblies; special nuclear material (SNM) as defined by the Atomic Energy Act of 1954 (as amended) and the Department; other nuclear materials; secure communications centers; sensitive compartmented information facilities; automated data processing centers or facilities storing and transmitting classified information; vital equipment; or other Department property.

Security Officer (SO) means an unarmed uniformed PF member who has no Departmental arrest or detention authority, used to support SPOs and/or to perform duties (e.g., administrative, access control, facility patrol, escort, assessment and reporting of alarms) where an armed presence is not required.

Security Police Officer (SPO) means a uniformed PF member who is authorized under section 161(k) of the Atomic Energy Act of 1954, as amended, section 661 of the DOE Organization Act, or other statutory authority, to carry firearms and to make arrests without warrant for specifically enumerated offenses and who is employed for, and charged with, the protection of Department security interests.

Semi-structured interview means, for the purpose of this part, an interview by a Psychologist who meets standards established by DOE and who has the latitude to vary the focus and content of the questions depending upon the interviewee's responses.

Special Response Team, commonly referred to as SRT, means a PF special operations unit comprised of SPOs whose primary mission is to resolve incidents that require activities and force options that exceed the capability of existing physical security systems (e.g., performance of recapture/recovery operations and augmentation of denial missions).

Special Response Team (SRT) Member means SPOs who meet the ARS, with additional training and qualification requirements as necessary, and who are assigned to an SRT that trains and responds as a team to perform recapture and recovery and to augment denial missions, e.g., those missions that require adversaries be denied proximity to the protected property.

Weapons proficiency demonstration means a process based on a predetermined, objective set of criteria approved by the respective program office in consultation with the Office of Health, Safety and Security that results in a grade (e.g., pass/fail). The process must ensure that an individual (or team, for crew-served weapons) demonstrates the ability to perform all weapons-handling and operational manipulations necessary to load, operate, and discharge a weapon system accurately and safely (to include clearing/returning to safe mode the weapons system at the conclusion of firing), without the necessity for scoring targets during the course of fire. Proficiency courses of fire must include tactically-relevant time constraints. Demonstrations of proficiency are allowed with the actual weapon and assigned duty load, with alternate loads (e.g., frangible or dye-marking rounds), or with authorized weapons system simulators, as defined in this section. Proficiency courses of fire must be tactically relevant.

Weapons qualification is a formal test of weapons proficiency that includes, in addition to all specified elements of proficiency demonstration, the achievement of a prescribed qualification score according to a Departmentally-approved course of fire. Weapons qualification courses of fire must be constrained by time.

Weapons system simulator means a device that closely simulates all major aspects of employing the corresponding actual firearm/weapons system, without firing live ammunition. The simulator should permit all weapons-handling and operational actions required by the actual weapon, and should allow the use of sight settings similar to the corresponding actual weapon with assigned duty loads. Additionally, when weapons or weapons system simulators are used for qualification testing of protective force officers, the operation of the simulated weapon must closely approximate all weapons handling and operational manipulation actions required by the actual weapon. The simulation system must precisely register on-target hits and misses with accuracy comparable to the actual weapon at the same shooting distances. The weight, balance, and sighting systems should closely replicate those of the corresponding actual weapon with assigned duty loads, and noise signatures and felt recoil should be simulated to the extent technically feasible.

Work hardening is discussed by the Department of Labor in their Division of Federal Employees' Compensation Procedure Manual, 2-813-12 (available at http://www.dol.gov/owcp/dfec/procedure-manual.htm), as a physical therapy program which will facilitate return-to-work. Work hardening is also known as an Occupational Rehabilitation Program.

§ 1046.4Physical Protection Medical Director (PPMD).

(a) General. The PPMD is the contractor physician programmatically responsible for the overall direction and operation of site medical programs supporting the PF requirements of this part. The PPMD is responsible for the programmatic oversight of all site Designated Physicians, including those who may operate physically separate clinics. Appropriate contractual arrangements must ensure that the PPMD's authority applies to all site contractors.

(1) Nomination. The name of each PPMD candidate must be submitted by the contractor to the ODFSA who in turn must consult with the Office of Health, Safety and Security prior to approving the PPMD. For NNSA, PPMD nominations must be made to the NNSA organization responsible for occupational health and safety. At the time of initial nomination for the PPMD designation the nominee shall submit, through the nominee's employer and the ODFSA, the following documents or copies thereof, translated into English if written in another language:

(i) Applicable diplomas;

(ii) Certificate of any postgraduate professional training (e.g., internship, residency, fellowship);

(iii) Current medical license in the state in which duties will be performed;

(iv) Certification of good standing by all medical licensing bodies from which the applicant has held medical licenses, as well as documentation of any restrictions or limitations to practice medicine, past or present (such documentation may be obtained in written form or electronically). The nominee may be requested to instruct the licensing body to send such certifications to the Office of Health, Safety and Security and as applicable to the NNSA organization responsible for occupational health and safety. Under no circumstances will such certifications of good standing be accepted directly from the applicant. Additionally, notice of certification by any additional American specialty board, if applicable, and/or current curriculum vitae may be requested; and

(v) A curriculum vitae, if requested, must include a discussion of any gaps in employment.

(2) Updates. If determined necessary at any time and requested by the Office of Health, Safety and Security, the NNSA organization responsible for occupational health and safety, the ODFSA, or the PPMD's employer, updated information as identified in paragraphs (a)(1)(i) through (v) of this section must be provided.

(3) Other roles and responsibilities. Nothing in this part is intended to preclude the PPMD from fulfilling similar or related roles under other parts or this title, including providing occupational medical services under 10 CFR part 851, “Worker Safety and Health Program.” Additionally, the PPMD may fulfill the role of Designated Physician. The PPMD's employer must notify the Office of Health, Safety and Security, and if appropriate the NNSA organization responsible for occupational health and safety, through the ODFSA if the PPMD will also be fulfilling the role of the Designated Physician.

(4) Qualifications. The PPMD shall possess an MD or DO degree; be board certified or board eligible in occupational medicine; be a professionally qualified physician in good standing in the professional community, to include all medical licensing bodies from which the applicant has held medical licenses; demonstrate past professional performance and personal conduct suitable for a position of responsibility and trust; read, write, speak, and understand the English language proficiently; and possess an unrestricted license to practice medicine in the state in which the designation is sought, or meet the medical licensing requirements of the applicable military or Federal service to which the applicant belongs.

(b) Nominations. Except as provided in § 1046.5(c), prior to approval of a Designated Physician by the PPMD's employer, the PPMD must nominate in writing, through the local ODFSA, to the Office of Health, Safety and Security, one or more nominees for Designated Physician positions. For NNSA, Designated Physician nominations must be made through the NNSA organization responsible for occupational health and safety.

(1) Each nomination must describe the relevant training and experience of the nominee.

(2) Each nominee must be professionally qualified in good standing in the professional community, to include all medical licensing bodies from which the applicant has held medical licenses; demonstrate past professional performance and personal conduct suitable for a position of responsibility and trust; read, write, speak, and understand the English language proficiently; and possess the applicable unrestricted license to practice in the state in which the designation is sought or meet the medical licensing requirements of the applicable military or Federal service to which the applicant belongs.

(3) To be nominated, a Designated Physician shall possess an MD or DO degree and be board certified or board eligible in occupational medicine.

(c) Documentation. At the time of initial nomination, the nominee shall submit to the PPMD the following documents or copies thereof, translated into English if written in another language:

(1) Applicable diplomas;

(2) Certificate of any postgraduate professional training (e.g., internship, residency, fellowship);

(3) Current medical license in the state in which duties will be performed; and

(4) Certification of good standing by all medical licensing bodies from which the applicant has held medical licenses, as well as documentation of any restrictions or limitations to practice medicine, past or present (such documentation may be obtained in written form or electronically). The PPMD may request the nominee to instruct the licensing body to send such certifications to the PPMD. Under no circumstances will such certifications of good standing be accepted directly from the applicant. Additionally, the PPMD may request notice of certification by any additional American specialty board, if applicable; and

(5) A current curriculum vitae may be requested. The curriculum vitae, if requested, must include a discussion of any gaps in employment.

(6) If determined necessary by the PPMD, updated information, as identified in paragraphs (c)(1) through (5) of this section, may be requested at any time.

(d) Self reporting. (1) Each incumbent individual covered under paragraphs (a) or (b) of this section must agree to self-report the following information as a condition of the designation. PPMDs must report to their employer, who must forward the information to the Office of Health, Safety and Security or as appropriate to the NNSA organization responsible for occupational health and safety through the ODFSA. Additionally, Designated Physicians must report to the PPMD the following:

(i) Any change in status or initiation or taking of an adverse action, past or present, by any state medical licensing board or any other professional licensing board against the licenses of the individual (these may be provided in written or electronic form). The incumbent or nominee may be required to request the licensing body to provide such information to the ODFSA or PDMD, as appropriate. Under no circumstances will such information be accepted directly from the incumbent or nominee;

(ii) Initiation of an adverse action by any Federal or state regulatory board;

(iii) Being named a defendant in any criminal proceedings (felony or misdemeanor);

(iv) Being named in a civil suit alleging professional malpractice;

(v) Being evaluated or treated for alcohol use disorder or drug dependency or abuse; and

(vi) Occurrence of a physical disorder, a mental disorder, or any other health condition that might affect the physician's ability to perform professional duties.

(2) All information in paragraphs (d)(1)(i) through (vi) of this section must be submitted to DOE for consideration and possible action and may result in rejection or termination of the applicable designation. Failure to provide such information may also result in the rejection or termination of the applicable designation. For NNSA contractors, in consultation with the Office of Health, Safety and Security, the NNSA organization responsible for occupational health and safety will make the final decision on the appropriate action in light of the information received.

(e) Annual activity report. The PPMD must review the current credentials of each Designated Physician annually and make a recommendation to the employer to either retain or replace each incumbent. The Office of Health, Safety and Security and as appropriate, the NNSA organization responsible for occupational health and safety must be notified by the employer through the appropriate field element of any changes.

(f) Retention or replacement. For DOE, the PPMD's supervisor of record must send an annual letter to the Office of Health, Safety and Security reporting on the current credentials of the PPMD recommending retention or replacement. Immediate notification must be made to the Office of Health, Safety and Security if a PPMD is relieved of duties or replaced. For NNSA, the PPMD's supervisor of record must send an annual letter to the NNSA organization responsible for occupational health and safety with a courtesy copy to the Office of Health, Safety and Security reporting on the current credentials of the PPMD recommending retention or replacement. For NNSA, immediate notification must be made to the NNSA organization responsible for occupational health and safety with a courtesy copy to the Office of Health, Safety and Security if a PPMD is relieved of duties or replaced.

(g) Medical activity summary. The PPMD must submit an annual letter summarizing the medical activity during the previous year conducted under this part to the Chief Health, Safety and Security Officer or designee through the manager of the Field Element. For NNSA the summary must be sent to the NNSA organization responsible for occupational health and safety with a courtesy copy to the Office of Health, Safety and Security. The PPMD must comply with applicable DOE requirements specifying report content.

§ 1046.5Designated Physician.

(a) Responsibilities. Designated Physicians are responsible for the conduct of medical examinations, evaluations, and medical certification of SOs and SPOs. Additionally, Designated Physicians are responsible for the supervision of physician extenders (e.g., physician's assistants, certified occupational health nurses, or nurse practitioners), as required by applicable state or local law. The Designated Physician must:

(1) Annually determine whether to approve an individual's participation in programmed physical readiness training programs required under this rule and determine the individual's ability to perform the physical readiness and PF qualification tests without undue risk. Medical approval must be obtained within thirty days prior to the individual's beginning such training or attempting the qualifying tests;

(2) With the assistance of a psychologist or psychiatrist meeting standards established by DOE, determine:

(i) An individual's medical capability, with or without reasonable accommodation, to perform the essential functions of PF job duties without creating a direct threat to the individual or others; and

(ii) Whether to certify that the individual meets the applicable medical and physical readiness standards as set forth herein for their position.

(3) Determine whether any portion of any medical examination may be performed by other qualified personnel, such as another physician or physician extenders;

(4) Be responsible for case management, including supervising, interpreting, and documenting PF personnel medical conditions; and

(5) Be familiar with the required essential functions of the job duties for PF personnel, as set forth in § 1046.11, and the physical readiness requirements as identified in § 1046.16.

(b) Nominations. The requirements of § 1046.4(b) and (c) must be followed by the individuals nominated for Designated Physician positions.

(c) Approval in lieu of nomination. Designated Physicians approved under the provisions of 10 CFR part 712, “Human Reliability Program,” will also satisfy the requirement for nomination to, and approval by, DOE/NNSA under this part. The employer must notify the Office of Health, Safety and Security through the ODFSA if the physician will be fulfilling the role of Designated Physician for this part in addition to fulfilling a role for another part (e.g., 10 CFR part 712). For NNSA the notification must be sent to the NNSA organization responsible for occupational health and safety with a courtesy copy to the Office of Health, Safety and Security.

(d) Self reporting. The self-reporting requirements of § 1046.4(d) must be followed by incumbent Designated Physicians.

Subpart B—Protective Force (PF) Personnel

§ 1046.11Essential functions of PF positions.

Nothing in this part is intended to preclude emergency use of any available protective force personnel by an on-scene commander to successfully resolve a national security emergency.

(a) Essential functions. The essential functions described in paragraphs (b) through (g) of this section and other site-specific essential functions must be communicated in writing by the manager of the Field Element to the PPMD and the Designated Physician. The Designated Physician is required to ensure applicant and incumbent PF members are aware that these essential physical and mental functions in paragraphs (b) through (g) of this section and other site-specific essential functions, as appropriate, and the medical certification standards provided in section 1046.13 if this part are the elements against which the initial and annual evaluations for PF personnel will be conducted.

(b) SO essential functions. (1) The control of voluntary motor functions, strength, range of motion, neuromuscular coordination, stamina, and dexterity needed to meet physical demands associated with routine and emergency situations of the job;

(2) The ability to maintain the mental alertness necessary to perform all essential functions without posing a direct threat to self or others; and

(3) The ability to understand and share essential, accurate communication by written, spoken, audible, visible, or other signals while using required protective equipment.

(c) Additional SO essential functions. SOs may be required to support SPOs and assist in the routine physical protection of DOE facilities, personnel, classified information, and property, as warranted by DOE facility operations, staff security posts used in controlling access to DOE facilities, conduct routine foot and vehicular patrols, escort visitors, check rooms and facilities, assess and report alarms, and perform basic first aid. Therefore, all SOs must also be able to:

(1) Understand and implement departmental and site policies and procedures governing post and patrol operations and access control systems;

(2) Understand and implement departmental and site policies and procedures governing the SO's role in site protection;

(3) Understand and implement inspection techniques for persons, packages and vehicles, as well as detect and identify prohibited articles and site-specific security interests;

(4) Work in locations where assistance may not be available;

(5) Spend extensive time outside exposed to the elements and working in wet, icy, hot, or muddy areas;

(6) Make frequent transitions from hot to cold, cold to hot, dry to humid, and from humid to dry atmospheres;

(7) Walk, climb stairs and ladders, and stand for prolonged periods of time;

(8) Safely operate motor vehicles when their use is required by local missions and duty assignments;

(9) Use clear and audible speech and radio communications in other than quiet environments;

(10) Read and understand policies, procedures, posted notices, and badges;

(11) Rely on the senses of smell, sight, hearing and touch to: detect the odor of products of combustion and of tracer and marker gases to detect prohibited articles; inspect persons, packages and vehicles; and in general determine the nature of emergencies; maintain personal safety; and report the nature of emergencies;

(12) Employ weaponless self-defense; and

(13) Be fitted with and use respirators other than self-contained breathing apparatus when the use of such equipment is required by local assignment.

(d) FPRS SPO essential functions. FPRS SPO personnel may be assigned only to fixed posts where there is no planned requirement for response away from that post. In addition to the SO essential functions listed in paragraphs (b) and (c) of this section, FPRS SPOs must be able to:

(1) Apply basic tactics (to include use of intermediate force weapons) necessary to engage and neutralize armed adversaries and determine probable capabilities and motivations of potential adversaries;

(2) Use site-specific hand tools and weapons required for the performance of duties;

(3) While armed and authorized to use deadly force, perform complex tasks, make life or death and other critical decisions, and take appropriate actions under confusing, stressful conditions including potentially life-threatening environments throughout the duration of emergency situations, e.g., active shooter scenarios;

(4) Perform physically demanding work under adverse weather and temperature conditions (extreme heat and extreme cold) on slippery or hazardous surfaces with the prolonged use of protective equipment and garments such as respirators, air supply hoods, or bullet-resistant garments, as required by site protection strategies;

(5) Be fitted for and properly utilize personal duty equipment;

(6) Work for long periods of time in conditions requiring sustained physical activity and intense concentration in environments of high noise, poor visibility, limited mobility, at heights, and in enclosed or confined spaces;

(7) Accommodate to changing work and meal schedules or to a delay in meals without potential or actual incapacity; and

(8) Have no known significant abnormal intolerance to chemical, mechanical (e.g., heat, light or water), and other physical agent exposures to the skin that may be encountered during routine and emergency duties, as specified at the site.

(e) BRS SPO essential functions. In addition to the FPRS SPO essential functions listed above, BRS SPOs must be able to:

(1) Read placards and street signs while driving or to see and respond to imminently hazardous situations in both daylight and reduced light conditions;

(2) Be capable of operating armored vehicles with an expectation of employing the capabilities of the vehicle;

(3) Staff security posts which normally require movement on foot, by vehicle, watercraft, or aircraft in response to alarms and any breach of security; and to support site protection strategies;

(4) Provide interdiction, interruption, neutralization, and support the recapture, pursuit and/or recovery of a DOE asset/site/facility/location;

(5) Make rapid transitions from rest to near maximal exertion without warm-up; and

(6) Otherwise act as needed to protect Department sites, personnel, classified information, and nuclear weapons, nuclear weapons components, and SNM, to apprehend suspects, and to participate in the armed defense of a Department site against a violent assault by adversaries.

(f) ARS SPO essential functions. The essential functions of an ARS SPO include those of a BRS SPO. Security posts which normally, or are expected to, require extensive tactical movement on foot must be staffed by ARS SPOs. In addition, an ARS SPO must be able to support the pursuit/recovery of a Department security interest.

(g) SRT member essential functions. The essential functions of an SRT member include those of an ARS SPO. The primary role of SRTs is the recapture, pursuit, and/or recovery of Department security interests. In addition, an SRT member must be trained to resolve incidents that require activities and force options that exceed the capabilities of other site PF members, as determined by site-specific analysis. An SRT SPO also must:

(1) Successfully complete a Departmental advanced tactical qualification course designed to provide the minimum level of skills and knowledge needed to completely perform all tasks associated with SRT job responsibilities;

(2) Have knowledge and skills to provide additional protection capability as demanded by the particular targets, threats, and vulnerabilities existing at their assigned Departmental facility;

(3) Be able to operate special weapons, tactical vehicles, and other equipment necessary to protect a particular facility or to effectively engage an adversary with advanced capabilities; and

(4) Possess the ability to act successfully as a member of an aggressive and readily mobile response team as dictated by site-specific vulnerability assessments, using force options and tactical response team techniques necessary for recapture and recovery operations directed against an adversary and to support site-specific protection strategies.

§ 1046.12Medical, physical readiness, and training requirements for PF personnel.

Department PF personnel must be individuals who:

(a) Are medically certified by the PPMD pursuant to the procedures set out in § 1046.13 to perform all of the applicable essential functions of the job, as set forth in § 1046.11;

(b) Meet the physical readiness qualification standards set forth in § 1046.16; and

(c) Are determined to be qualified as having the knowledge, skills, abilities and completed the requirements of a formal training program as set out in § 1046.16.

§ 1046.13Medical certification standards and procedures.

(a) PF medical certification standards. All applicant and incumbent PF personnel must satisfy the applicable Medical Certification Standards set forth in this section.

(b) Requirements of the medical evaluation to determine medical certification. (1) The medical evaluation must be made by the Designated Physician without delegation (e.g., to a physician's assistant or nurse practitioner).

(2) Evaluations of incumbent security police officers must include a medical history, the results of the examination, and a formal written determination.

(3) A site standard form approved by the Chief Medical Officer must be used, and pertinent negatives must be documented on the form.

(4) The Medical Certification Standards are the minimum medical standards to be used in determining whether applicants and incumbent PF personnel can effectively perform, with or without reasonable accommodation, all essential functions of normal and emergency duties without imposing an undue hardship on the employer or posing a direct threat to the PF member or others, the facility, or the general public. All reasonable accommodations as defined in this part must be approved in writing by the PF contractor with a determination that the use of the device is compatible with all actions associated with emergency and protective equipment without creating a hardship for the contractor. The Designated Physician and PPMD must determine that the reasonable accommodation is consistent with the medical standard without creating a direct threat to the individual or to others.

(c) General medical standards for PF personnel. The examinee must possess the mental, sensorial, and motor skills to perform, safely and efficiently, all applicable essential job functions described in § 1046.11 and those designated in the current job analysis submitted by PF management to the Designated Physician/PPMD. Specific qualifications for SOs and SPOs are set forth in paragraphs (d) and (e), respectively, of this section. Reasonable accommodations shall be provided pursuant to the requirements of the ADAAA.

(d) Specific medical standards for SOs—(1) Head, face, neck, and scalp. Configuration suitable for fitting and effective use of personal protective equipment when the use of such equipment is required by assigned normal or emergency job duties.

(2) Sense of smell. Ability to detect the odor of combustion products and of tracer or marker gases.

(3) Speech. Capacity for clear and audible speech as required for effective communications of the job.

(4) Hearing. Hearing loss with or without aids not to exceed 30 decibels (db) average at 500, 1000, and 2000 Hertz (Hz), with no loss greater than 40 db at any one of these frequencies and the ability to localize sounds with a difference of not more than 15 db average loss between the two ears. If hearing aids are necessary, suitable testing procedures shall be used to ensure auditory acuity equivalent to the above requirement.

(5) Vision. Near and distant visual acuity, with or without correction, of at least 20/25 in one eye and no worse than 20/40 in the other eye.

(6) Color vision. Ability to distinguish red, green, and yellow. Acceptable measures of color discrimination include the Ishihara; Hardy, Rand, & Rittler; and Dvorine pseudoisochromatic plates (PIP) when administered and scored according to the manufacturer's instructions. Tinted lenses such as the X-Chrom contact lenses or tinted spectacle lenses effectively alter the standard illumination required for all color vision tests, thereby invalidating the results and are not permitted during color vision testing.

(7) Cardiorespiratory. Capacity to use a respirator other than self-contained breathing apparatus (SCBA) when required by local assignment.

(8) Nutritional/metabolic. Ability to accommodate to changing work and meal schedules without potential or actual incapacity. Status adequate to meet the stresses and demands of assigned normal and emergency job duties.

(e) Specific medical standards for SPOs. In addition to the criteria identified in § 1046.16(f), the following standards must be applied.

(1) Head, face, neck and scalp. Configuration suitable for fitting and effective use of personal protective equipment when the use of such equipment is required by assigned normal or emergency job duties.

(2) Sense of Smell. The ability to detect the odor of combustion products and of tracer or marker gases.

(3) Speech. Capacity for clear and audible speech as required for effective communications on the job.

(4) Hearing. Hearing loss without aids not to exceed 30 db average at 500, 1000, 2000 Hz, with no loss greater than 40 db at any of these frequencies and the ability to localize sounds with a difference of not more than 15 db average loss between the two ears. Hearing loss beyond indicated level would interfere with ability to function and respond to commands in emergency situations. Use of a hearing aid is allowed for one ear only with the remaining ear qualifying for no more than an average of 30 db loss at frequencies of 500, 1000 and 2000 Hz. If a hearing aid is necessary, suitable testing procedures must be used to assure auditory acuity equivalent to the above requirement for the difference between two ears.

(5) Vision. (i) Near and distant vision. Near and distant visual acuity sufficient to effectively perform emergency-related essential functions:

(A) With or without correction, vision of 20/25 or better in the better eye and 20/40 or better in the other eye.

(B) If uncorrected, distant vision in the better eye is at least 20/25, and if the SPO wears corrective lenses, the SPO must carry an extra pair of corrective lenses.

(ii) Color vision. Ability to distinguish red, green, and yellow. Acceptable measures of color discrimination include the Ishihara; Hardy, Rand, & Rittler; and Dvorine pseudoisochromatic plates (PIP) when administered and scored according to the manufacturer's instructions. Tinted lenses such as the X-Chrom contact lenses or tinted spectacle lenses effectively alter the standard illumination required for all color vision tests, thereby invalidating the results and are not permitted during color vision testing.

(iii) Field of vision. Field of vision in the horizontal meridian at least a total of 140 degrees, contributed to by at least 70 degrees from each eye.

(iv) Depth perception. Ability to judge the distance of objects and the spatial relationship of objects at different distances.

(6) Cardiorespiratory. (i) Respiratory. Capacity and reserve to perform physical exertion in emergencies at least equal to the demands of the job assignment. This must be measured by annual pulmonary function test, with no less than a 90 percent predicted forced vital capacity and forced expiratory volume. There must be no diagnosis of respiratory impairment requiring ongoing use of medications such as bronchodilators or beta agonists. A full review and approval by the PPMD is required whenever there is a past history of sleep apnea (with an established index of suspicion), with or without treatment.

(ii) Cardiovascular. (A) Capacity for tolerating physical exertion during emergencies. The results of the two semiannual assessments as identified in § 1046.16(b)(4) must be considered. Normal configuration and function, normal resting pulse, regular pulse without arrhythmia, full symmetrical pulses in extremities, and normotensive, with tolerance for rapid postural changes on rapid change from lying to standing position. The use of hypertensive medications is acceptable if there are no side effects present that would preclude adequate functions as herein specified.

(B) If an examination reveals significant evidence of cardiovascular abnormality or significantly increased risk for coronary artery disease (CAD) as determined by the examining physician (e.g., by using the Framingham Point System), an evaluation by a specialist in internal medicine or cardiology may be required and evaluated by the Designated Physician. An electrocardiogram is required at entry, at age 40, and annually thereafter, which must be free from significant abnormality. If such abnormalities are detected, then a stress electrocardiogram with non-ischemic results must be provided, or the individual must be referred to a cardiologist for a fitness for duty examination. A stress electrocardiogram must be performed every other year beginning at age 50 with the results reviewed by the Designated Physician.

(7) Neurological, mental, and emotional. Absence of central and peripheral nervous system conditions that could adversely affect ability to perform normal and emergency duties or to handle firearms safely. A test for peripheral neuropathy at fingers and toes is required annually. Absence of neurotic or psychotic conditions which would adversely affect the ability to handle firearms safely or to act safely and efficiently under normal and emergency conditions. Psychologists and psychiatrists identified to conduct evaluations, assessments, testing, and/or diagnoses associated with medical qualifications of this part must meet standards established by DOE.

(8) Musculoskeletal. Absence of conditions that could reasonably be expected to interfere with the safe and effective performance of essential physical activities such as running, walking, crawling, climbing stairs, and standing for prolonged periods of time. All major joint range of motion limits must have no significant impairments in the performance of essential functions. This includes full range of motion to include overhead reaching and squatting. No history of spine surgery, a documented diagnosis of herniated disc, or mechanical back pain that has not been certified to have normal functional recovery with no activity limitations precluding the ability to perform SPO essential functions.

(9) Skin. Have no known significant abnormal intolerance to chemical, mechanical, and other physical agent exposures to the skin that may be encountered during routine and emergency duties, as specified at the site. Capability to tolerate use of personal protective covering and decontamination procedures when required by assigned job duties. Facial hair cannot be allowed to interfere with respirator fitting, and any such growth or a skin condition which could preclude respirator fit is not acceptable and must be documented.

(10) Endocrine/nutritional/metabolic. Ability to accommodate to changing work and meal schedules without potential or actual incapacity. Status adequate to meet the stresses and demands of assigned normal and emergency job duties. A full evaluation and approval of reasonable accommodation by the PPMD is required for hiring and retention when metabolic syndrome is identified and/or when diabetes is controlled by other than diet.

(f) Additional medical or physical tests. For those facilities where it is necessary to determine the medical qualification of SPOs or SPO applicants to perform special assignment duties which might require exposure to unusually high levels of stress or physical exertion, Field Elements may develop more stringent medical qualification requirements or additional medical or physical tests, in collaboration with the PPMD, as necessary for such determinations. All such additional qualification requirements must be coordinated with the Office of Health, Safety and Security prior to application.

(g) Medical examination procedures and requirements. (1) The medical examinations required for certification must be performed at the following intervals:

(i) Applicants for PF member positions must undergo a comprehensive medical examination, as specified herein. The Chief Health, Safety and Security Officer or designee, the Chief, Defense Nuclear Security in the case of NNSA, and/or the PPMD may require additional evaluations.

(ii) After initial certification, each SO must be medically examined and recertified at least every two years or more often if the PPMD so requires. This initial certification date becomes the SO's anniversary date. Medical certification remains valid through 30 days beyond the anniversary date or for the period indicated by the PPMD if less than twenty-four months.

(iii) After initial certification, each SPO must be medically examined and recertified every twelve months or more often (pursuant to § 1046.14 or otherwise if the PPMD so requires). This initial certification date becomes the SPO's anniversary date. Medical certification remains valid through 30 days from the anniversary date or for the time indicated by the PPMD if less than twelve months.

(2) The medical examination must include a review of the essential functions of the job to which the individual is assigned. Medical examinations of SPO and SO applicants and incumbents must include the following evaluations to determine whether the individual meets the Medical Certification Standards for the applicable position:

(i) An up to date medical and occupational history, complete physical examination, vision testing, audiometry, and spirometry. In addition, laboratory testing must be performed, including a complete blood count (CBC), basic blood chemistry, a fasting blood glucose, and a fasting lipid panel (the examination and testing is to identify baseline abnormalities, as well as trends); and

(ii)(A) A psychologist or, as appropriate, a psychiatrist who meets standards established by DOE must be used to fulfill the requirements of this part. A personal, semi-structured interview at the time of the pre-placement medical evaluation and during the biennial (for SOs) or annual (for SPOs) examination must be conducted by a psychologist or, as appropriate, a psychiatrist. At the pre-placement medical examination and every third year for SPOs and every fourth year for SOs thereafter, a Minnesota Multi-Phasic Personality Inventory (MMPI) (available only to appropriate medical professionals at, e.g., http://psychcorp.pearsonassessments.com) or its revised form must be administered in order to:

(1) Establish a baseline psychological profile;

(2) Monitor for the development of abnormalities; and

(3) Qualify and quantify abnormalities.

(B) The information gathered from paragraph (g)(2)(i) of this section, together with the results of the semi-structured interview of this paragraph, psychiatric evaluations (if required), and reviews of job performance may indicate disqualifying medical or psychological conditions. Additional generally-accepted psychological testing may be performed as required to substantiate findings of the MMPI. If medically indicated and approved by the PPMD, an additional evaluation by a psychiatrist who meets standards established by DOE may be conducted. Additional or more frequent psychological evaluations as determined by the psychologist, psychiatrist, Designated Physician, or the PPMD may be required. Unless otherwise indicated, a psychological evaluation performed in accordance with the other DOE requirements (e.g., pursuant to 10 CFR part 712) may satisfy the requirements of this part.

(C) The Designated Physician may request any additional medical examination, test, consultation or evaluation deemed necessary to evaluate a candidate or an incumbent SO's or SPO's ability to perform essential job duties or for incumbents, the need for temporary work restrictions.

(3) When an examinee needs the use of corrective devices, such as eyeglasses or hearing aids, to enable the examinee to successfully meet medical qualification requirements, the contractor responsible for the examinee's performance must make a determination that the use of any such device is compatible with all required emergency and protective equipment that the examinee may be required to wear or use while performing assigned job duties. The Designated Physician and the PPMD must determine that the reasonable accommodation is consistent with the medical standard and will not result in a direct threat to the individual or to others. This determination must be made before such corrective devices may be used by the examinee to meet the medical, physical readiness, or training requirements for a particular position.

(4) Contractor management must provide reasonable accommodations to a qualified individual by taking reasonable steps to modify required emergency and protective equipment to be compatible with corrective devices or by providing equally effective, alternate equipment, if available.

(5) The Designated Physician must discuss the results of the medical and physical readiness examinations with the individual. The results of the medical examinations also must be communicated in writing to PF management and to the individual and must include:

(i) A statement of the certification status of the individual, including any essential functions for which the individual is not qualified, with or without reasonable accommodations, and an assessment of whether the individual would present a direct threat to self or others in the position at issue;

(ii) If another medical appointment is required, the date of the next medical appointment; and

(iii) Recommended remedial programs or other measures that may restore the individual's ability to perform the essential functions or may negate the direct threat concern, if the individual is not approved for physical training, testing, or the relevant position.

(6) The PF contractor must offer a health status exit review for all employees leaving PF service. If the employee desires the review, it must be conducted by the PPMD or Designated Physician. The review, which may be conducted in conjunction with the requirements of other parts, must include all of the medical standards for the PF position being vacated. The reason(s) for any health status exit review not being performed must be documented (e.g., employee declined to have the review conducted).

§ 1046.14Medical certification disqualification.

(a) Removal. An incumbent SO or SPO is disqualified from medical certification by the PPMD if one or more of the medical certification standards contained in § 1046.13 are not met. An incumbent SO or SPO temporarily or permanently disqualified from medical certification by the PPMD must be removed from those protective force duties by the employer when the employer is notified by the PPMD of such a determination.

(b) Medical removal protection. The employer of a disqualified SPO must offer the SPO medical removal protection if the PPMD determines in a written medical opinion that the disqualifying condition occurred as a result of site-approved training for or attempting to meet a physical readiness standard qualification, or site-approved training for security and emergency response (e.g., participating in force-on-force exercises for training, inspection, or validation purposes). The PPMD's determination must be based on an examining physician's recommendation or any other signs or symptoms that the Designated Physician deems medically sufficient to medically disqualify an SPO. The employee pay benefits specified in this section for combined temporary and permanent medical removal shall not be provided for more than one year from the date of the initial PPMD written determination regarding the same basis for disqualification.

(1) Temporary removal pending final medical determination. (i) The employer of a disqualified SPO must offer the SPO temporary medical removal from PF duties on each occasion that the PPMD determines in a written medical opinion that the worker should be temporarily removed from such duties pending a final medical determination of whether the SPO should be removed permanently, if appropriate. “Final medical determination” means the outcome of the Independent Review provided for in § 1046.15(c) or, if one is held, the Final Review provided for in § 1046.15(d).

(ii) If an SPO is temporarily removed from PF duties pursuant to this section, the SPO's employer must not remove the employee from the payroll unless available alternative duties for which the worker is qualified or can be trained in a short period of time are refused or performed unsatisfactorily.

(iii) While the SPO remains on the payroll pursuant to paragraph (b)(1)(i) of this section, the SPO's employer must maintain the SPO's total base pay (overtime not included), seniority, and other site-specific worker rights and benefits (e.g., corporate benefit package and collective bargaining agreement benefits) as if the worker had not been removed. Funds reimbursable by the DOE which are provided to a SPO under medical removal protection must be reduced dollar for dollar for any other PF related pay or monetary benefit for associated lost earnings, including those negotiated through collective bargaining and from workers compensation. Medical removal protection in conjunction with these other benefits must not exceed the SPO's total base pay.

(iv) If there are no suitable alternative duties available as described in paragraph (b)(1)(ii) of this section, the SPO's employer must provide to the SPO the medical removal protection benefits specified in paragraph (c)(1) of this section until alternative duties become available, the SPO has recovered, or one year has elapsed from the date of the PPMD's determination that the SPO should be temporarily removed from duties, whichever comes first. During this period the SPO may be placed on administrative leave when alternative duties are not available.

(2) Permanent medical removal resulting from injuries. (i) If the PPMD determines in a written medical opinion that the worker should be permanently removed from PF duties as a result of injuries sustained while engaging in required physical readiness activities (i.e., site approved training for or attempting to meet a physical readiness standard qualification or site approved training for security or emergency response), employer Human Resources policies, disability insurance, and/or collective bargaining agreements will dictate employment status and compensation beyond the requirements of paragraphs (b) and (c) of this section.

(ii) If an SPO has been permanently removed from duty pursuant to paragraph (b)(2)(i) of this section, the SPO's employer must provide the SPO the opportunity to transfer to another available position, or one which later becomes available, for which the SPO is qualified (or for which the SPO can be trained in a short period), subject to collective bargaining agreements, as applicable.

(3) Worker consultation before temporary or permanent medical removal. If the PPMD determines that an SPO should be temporarily or permanently removed from PF duties, the PPMD must:

(i) Advise the SPO of the determination that medical removal is necessary to protect the SPO's health and well-being or prevent the SPO from being a hazard to self or others;

(ii) Provide the SPO the opportunity to have any medical questions concerning medical removal answered; and

(iii) Obtain the SPO's signature or document that the SPO has been advised on the provisions of medical removal as provided in this section and the risks of continued participation in physically demanding positions.

(4) Return to work after medical removal. (i) Except as provided in paragraph (b)(4)(ii) of this section, the SPO's employer must not return an SPO, who has been granted medical removal protection under this section, to the SPO's former job status.

(ii) If, in the PPMD's opinion, continued participation in PF duties will not pose an increased risk to the SPO's health and well-being or an increased risk (beyond those normally associated with SPO duties) of the SPO being a direct threat to self or others, the PPMD must fully discuss these matters with the SPO and then, in a written determination, may authorize the SPO's employer to return the SPO to former job status. Within one year from the PPMD's original decision to remove the individual from SPO status and subject to the SPO's ability to meet all other position related requirements (e.g., weapons qualifications, physical readiness standard, human reliability program, and refresher training), the employer must return the SPO to duty status given PPMD authorization to return to work. For durations beyond one year from the original decision given PPMD authorization to return to work, return to SPO status will be at the employer's discretion.

(c) Medical removal protection benefits. (1) If required by this section to provide medical removal protection benefits, the SPO's employer must maintain for not more than one year, as specified in paragraphs (b)(1) and (b)(2) of this section, the removed worker's total base pay, and seniority, as though the SPO had not been removed. The total base pay provision in this section must be reduced by any compensation for lost earnings provided by any other benefit or those negotiated through collective bargaining for both temporary and permanent removal protection as provided by this section.

(2) If a removed SPO files a claim for workers' compensation payments for a physical disability, then the SPO's employer must continue to provide medical removal protection benefits until disposition of the claim, recovery of the claimant, or one year from the date the removal protection began, whichever comes first. If workers' compensation benefits are provided retroactively then the SPO must reimburse the employer to the extent the SPO is compensated for lost earnings for the same period that the medical removal protection benefits are received for both temporary and permanent removal protection as provided by this section. Expenses for medical/rehabilitation treatments related to the basis for medical removal protection are not covered under this part.

(3) The SPO's employer's obligation to provide medical removal protection benefits to an SPO is reduced to the extent that the worker receives compensation for earnings lost during the period of removal either from a publicly or site employer-funded compensation program.

(d) Collective bargaining agreements. For the purposes of this section, the requirement that the SPO's employer provide medical removal protection benefits is not intended to expand upon, restrict, or change any rights to a specific job classification or position under the terms of an applicable existing collective bargaining agreement.

§ 1046.15Review of medical certification disqualification.

(a) Temporary medical and physical conditions. Should the PPMD determine that an individual is disqualified from medical certification because of a temporary medical or physical condition which results in the individual not being able to perform any of the essential functions of the job classification, the employer may assign the individual to alternate, limited duty, if available, until the individual is again medically certified by the PPMD. However, this limited duty may only include assignment to duties in a job classification where all essential functions for that job classification can be safely and efficiently performed. Medical certification is required to remain in armed status. A temporary medical certification disqualification may not exceed a period of twelve months regardless of whether medical removal protection is authorized. Before the end of the twelve-month period, the PPMD must determine whether the individual is permanently disqualified from medical certification because of a continuing medical or physical condition which results in the individual not being able to perform all essential functions of the job classification. The individual may request an Independent Review of the disqualification at any time the twelve-month period.

(b) Permanent medical and physical conditions. If the PPMD determines that an individual is disqualified from medical certification because of a permanent medical or physical condition which results in the individual not being able to perform all essential functions of the job classification, and the individual requests an Independent Review, the employer may assign the individual to alternate, limited duty, if available. This limited duty may include assignment to duties in any job classification where all essential functions can be safely and efficiently performed. Subject to the one year limit as identified in § 1046.14, assignment to alternate, limited duty, may remain in effect until an Independent Review determination, and if applicable, the Final Review determination by the DOE Office of Hearings and Appeals.

(c) Independent review. An individual PF member disqualified from medical certification, temporarily or permanently, by the PPMD may request an Independent Review of the case. The individual initiating such a review must submit the request for an Independent Review in writing to the Office of Health, Safety and Security within ten working days of the date of notification (date of written correspondence) of disqualification. A copy of the request must be sent to the individual's employer and to the local ODFSA: for DOE HQ sites, to the Director, Office of Security Operations; for NNSA sites, to the cognizant NNSA Security Director; and for any other DOE sites, to the cognizant DOE Security Director.

(1) The Office of Health, Safety and Security, in coordination with the respective PPMD, must provide for the Independent Review. The Independent Review must be conducted within sixty calendar days of the receipt of the request for an Independent Review. The Independent Review must include a complete review of the record of the case.

(2) The disqualified individual may select a representative during the Independent Review process. The individual or representative may provide additional evidence relating solely to the medical or physical readiness of the individual. The individual must execute a consent document authorizing the release of relevant medical information to the Office of Health, Safety and Security.

(3) The disqualified individual must provide a copy of the request for Independent Review and the signed consent document for the release of medical information to the respective PPMD and the individual's employer within ten working days of the submission of the request to the Office of Health, Safety and Security.

(4) Within ten working days of receipt of a copy of the request for an Independent Review, the disqualified individual's employer must provide the Office of Health, Safety and Security with the following:

(i) A copy of the job analysis (JA)/mission essential task list (METL) available to the respective Designated Physician at the time of the individual's medical evaluation;

(ii) A listing of the essential functions for the individual's PF job classification; and

(iii) Any additional information relating to the medical or physical readiness of the requestor that the Office of Health, Safety and Security may request.

(5) The Office of Health, Safety and Security must provide the information in paragraph (c)(4) of this section to the Independent Physician for use in the independent review.

(6) A medical examination of the disqualified individual must be conducted by an Independent Physician approved by the Office of Health, Safety and Security. The Independent Physician must not have served as the requestor's personal physician in any capacity or have been previously involved in the requestor's case on behalf of the Department or a Department contractor. The Independent Review must confirm or disagree with the medical certification disqualification and must consider:

(i) The validity of the stated physical requirements and essential function(s) for the applicable job classification;

(ii) The PPMD's medical determination of the individual's inability to perform essential functions or to undertake training or the physical readiness qualification test without undue medical risk to the health and safety of the individual;

(iii) The completeness of the medical information available to the PPMD; and

(iv) If applicable, the determination by the PPMD that the performance of the individual poses a direct threat to self or others.

(7) The results of the Independent Physician's medical examination of the individual must be provided to the Office of Health, Safety and Security for review. The Office of Health, Safety and Security must then recommend a final determination confirming or reversing the medical certification disqualification. The recommendation of the Office of Health, Safety and Security must be forwarded to the applicable local ODFSA (for DOE HQ sites, the Director, Office of Security Operations; for NNSA sites, the cognizant local NNSA Security Director; and for any other DOE sites, the cognizant local DOE Security Director) and the respective PPMD. This individual will either adopt or reject the recommendation of the Office of Health, Safety and Security.

(8) The Office of Health, Safety and Security must provide the results of the Independent Review and the final determination regarding the individual's medical disqualification to the requestor, the respective PPMD, the respective local ODFSA, and the requestor's employer.

(9) If the Independent Review determination confirms the individual is disqualified from medical certification, the individual must be removed from the PF job classification by the individual's employer. If the Independent Review disagrees with the medical certification disqualification, the individual must be reinstated to the PF job classification by the individual's employer, subject to successful completion of any required qualifications or training requirements that were due during the temporary disqualification, and subject to subsequent annual medical examinations and the ability to meet applicable physical readiness requirements.

(d) Final review. An individual receiving an unfavorable Independent Review Determination may request a Final Review of the Independent Review Determination by the Office of Hearings and Appeals. The individual must submit a request for a Final Review to the Office of Hearings and Appeals, in writing, within 30 days of receiving an unfavorable determination, and notify the Office of Health, Safety and Security of the request for appeal. In the request for a Final Review, the individual must state with specificity the basis for disagreement with the Independent Review confirming the medical certification disqualification. The Office of Health, Safety and Security must transmit the complete record in the case to the Office of Hearings and Appeals within five business days of receiving notice from the individual that the SPO has filed an appeal of the Independent Review Determination. The Office of Hearings and Appeals may request additional information, if necessary, to clarify any issue on appeal. Within 45 days of the closing of the record, the Office of Hearings and Appeals must issue a Decision and Order setting forth its findings on appeal and its conclusions based on the record before it. Upon receipt of an unfavorable Final Review decision by the Office of Hearings and Appeals, the individual must be permanently removed from that PF job classification, SO or SPO (FPRS, BRS, ARS, or SRT member) by the employer. However, nothing in the Final Review decision shall prevent the employee from being allowed to qualify for a less strenuous physical readiness job classification given the availability of said position, subject to successful completion of any other required qualifications or training requirements. Upon receipt of a favorable Final Review decision from the Office of Hearings and Appeals, the individual must be reinstated to the PF job classification by the employer, subject to successful completion of any required qualifications or training requirements due during the temporary disqualification, and future ability to be medically certified for the PF job classification and to meet applicable physical readiness standards.

§ 1046.16SPO physical readiness qualification standards and procedures.

(a) General. Employers must ensure SPOs have access to their applicable physical readiness standard and the provisions of this part. Employers must also inform SPOs of their rights associated with the physical readiness requirements.

(1) All SPO applicants must satisfy the applicable physical readiness standard for their assigned position and must physically demonstrate the physical training and knowledge, skills, and abilities set out in paragraph (g) of this section, as required for their assigned position before beginning active duty in that position.

(2) All incumbent SPOs must re-qualify every year according to their applicable readiness standard, pursuant to paragraphs (d)(1), (f), or (g) of this section. Re-qualification must occur no earlier than 30 days prior to and no later than 30 days following the SPOs anniversary date. The actual date of re-qualification does not affect the anniversary date under this section.

(3) All qualification and re-qualification activities must be conducted under the supervision of personnel knowledgeable of DOE physical readiness program requirements as approved by the local ODFSA.

(b) Physical readiness training program. SPOs must maintain physical readiness standards on a continuing basis. Each SPO must engage in a year-round physical readiness training program consistent with paragraph (c)(2) and (3) of this section to:

(1) Achieve and maintain the cardio-respiratory and musculoskeletal fitness necessary to safely perform, without posing a direct threat to self or others, all essential functions of normal and emergency PF duties at any time; and

(2) Enable the individual SPO to pass (on an annual basis) the applicable SPO physical readiness standard without any undue risk of physical injury.

(c) Training program requirements. (1) The training program must include the following elements:

(i) Activities with appropriate durations specific to the physical readiness standard, which appropriately address aerobic, agility, flexibility, and strength conditioning.

(ii) Instruction on techniques and exercises designed to ensure SPOs can safely rise quickly from the prone position, and if required by qualification standard, transition into a run.

(iii) Appropriate warm-up and cool down activities designed by exercise physiologists to support injury free workouts and physical readiness testing.

(2) An SPO physical readiness training and maintenance program must be developed by the employing organization in consultation with the PPMD and the local ODFSA.

(3) After initial training and qualification, each SPO must participate in the physical readiness training and maintenance program on a continuing basis. The physical readiness maintenance program must be based on assessment of the individual SPO's physical readiness levels and be tailored to the individual SPO's physical readiness maintenance requirements and improvement needs. Whether training is conducted on or off site, the SPO's participation must be documented.

(4) Assessments of an SPO's level of physical readiness must be conducted at least semiannually by personnel knowledgeable of DOE requirements. The results of the assessments must be provided to the Designated Physician. The assessments must include recognized assessment standard values for aerobic capacity (e.g., American College of Sports Medicine [http://www.acsm.org/], Cooper Fitness Institute [http://www.cooperinstitute.org/], or Rockport Walk Protocol [available online from a variety of Web sites]). Though not a qualification, the assessment report must include an evaluation of the SPO's level of physical readiness and provide recommendations for maintenance requirements and improvement needs, if any. Ability to summon appropriate medical emergency response with the capability of responding within a reasonable time must be available at the assessment site. An individual trained in cardio-pulmonary resuscitation and automatic external defibrillator equipment must be present.

(5) No additional training or time extension to meet the standards is permitted except for unusual circumstances based on a temporary medical or physical condition as certified by the PPMD that causes the SPO to be unable to satisfy the physical readiness standards within the required time period without suffering undue physical harm. An SPO who fails to re-qualify must be removed from armed SPO status and must participate in a remedial physical readiness training program, as specified in paragraphs (g)(8) and (9) of this section.

(6) An SPO may be required to demonstrate the ability to meet the applicable physical readiness qualification standard during a Headquarters or field audit/inspection/survey or other similar activity, as directed by the local ODFSA. Failure to meet the physical readiness standard must be treated as if the SPO failed the first attempt during routine qualification, and the procedures of paragraphs (g)(5) and (8) of this section apply. An SPO who fails to demonstrate the standard must be removed from armed status.

(7) Employees must notify the employer when the requirements of the training program cannot be successfully completed on a recurring basis (e.g., exercises cannot be completed and/or completed within time limits several times in a row due to injury and/or conditioning issues).

(8) When a physical readiness deficiency is first identified, the employer must provide the SPO access to remedial training or, based upon PPMD evaluation validating the medical need, to a work hardening or rehabilitation program.

(d) Physical readiness standards for SPOs. Any failure, at any time, by an SPO to physically demonstrate ability to meet the required physical readiness standard, must result in temporary removal from being authorized to perform the functions of that standard. The physical readiness standards for SPOs are as follows:

(1) Fixed Post Readiness Standard (FPRS). This qualification standard applies to all SPOs. Regardless of an SPO's physical readiness category, the FPRS must be physically demonstrated every year by all SPOs.

(i) The standard requires sufficient agility and range of motion to: Assume, maintain, and recover from the variety of cover positions associated with effective use of firearms at entry portals and similar static environments to include prone, standing, kneeling, and barricade positions; use site-specific deadly and intermediate force weapons and employ weaponless self-defense techniques; effect arrests of suspects and place them under restraint, e.g., with handcuffs or other physical restraint devices; and meet any other measure of physical readiness necessary to perform site-specific essential functions as prescribed by site management and approved by the respective program office.

(ii) A stand-alone qualification test which requires the demonstration of all of the required elements (both general and site-specific, if applicable) must be developed and maintained by each site and approved by the ODFSA. This qualification test can be used for annual qualification, or sites may choose to document an SPO's ability to meet specific elements of the standard during annual refresher training sessions and/or during weapons qualification activities. All elements of this standard must be demonstrated annually in the aggregate.

(iii) The results must be provided to the Designated Physician prior to the annual medical examination. Inability to physically demonstrate the FPRS requirements must result in temporary loss of SPO status. Remedial training must be provided pursuant to the requirements of paragraph (g)(8) of this section.

(2) Basic Readiness Standard (BRS). In addition to demonstrating the FPRS requirements as stated in paragraph (d)(1) of this section, the BRS qualification consists of a one-half mile run with a maximum qualifying time of 4 minutes 40 seconds and a 40-yard dash from the prone position in 8.5 seconds or less, and any other site-specific measure of physical readiness necessary to perform essential functions as prescribed by site management and approved by the respective program office. The running elements and other site-specific measures of the BRS must be demonstrated on the same day.

(3) Advanced Readiness Standard (ARS). In addition to demonstrating the FPRS requirements as stated in paragraph (d)(1) of this section, the ARS qualification consists of a one mile run with a maximum qualifying time of 8 minutes 30 seconds, and a 40-yard dash from the prone position in 8.0 seconds or less, and any other site-specific measure of physical readiness necessary to perform site-specific essential functions as prescribed by site management and approved by the respective program office. The running elements and other site-specific measures of the ARS must be demonstrated on the same day.

(e) Revisions to Physical Readiness Standards. The Department may revise the physical readiness standards or establish new standards consistent with the Administrative Procedure Act and other applicable law.

(f) Evaluation and documentation for BRS and ARS SPOs. Two distinct determinations must be made by the Designated Physician for BRS and ARS SPOs. First, a medical examination that meets the requirements of § 1046.13(g) must be conducted. A written determination must be made whether the SPO is medically certified for SPO duties without being a danger to self or others. This includes being able to attempt to physically demonstrate the applicable physical readiness standard. Given a favorable medical clearance determination, the second determination assesses the SPO's physical readiness capability by comparing the SPO's current examination results, medical history, normative data, past qualifying times, and the results of physical assessments. The Designated Physician's evaluation and documentation that an incumbent BRS or ARS SPO has reasonable expectation of meeting the appropriate physical readiness standard is deemed to have met the annual physical readiness qualification requirement without having to take the appropriate BRS or ARS test unless the SPO is randomly selected pursuant to paragraph (f)(7) of this section. Physician extenders (e.g., physician's assistants, certified occupational health nurses, or nurse practitioners) and exercise physiologists may perform appropriate elements of the physical examination and the physical assessments required in paragraph (b)(4) of this section. However, both the medical clearance determination and the formal physical readiness capability evaluation must be made by the Designated Physician without delegation. A site standard form must be used, and pertinent negatives must be documented on the form. The following procedures apply regarding the Designated Physician's evaluation and documentation that an incumbent BRS or ARS SPO has a reasonable expectation of meeting the appropriate physical readiness standard.

(1) Evaluation of BRS and ARS SPOs must include consideration of past medical history and normative data when available for individuals deemed to be physically capable. The following criteria must be evaluated: Cardiac function to include resting pulse rate and pulse recovery after exertion; neuromuscular function to include assessments of strength, range/freedom of motion, and movement without pain. While they are not required to be used or intended to be the sole determining criterion, for Designated Physicians using metabolic equivalents (METS) data the following values may be included in the overall process to determine if an individual SPO has a reasonable expectation of being able to physically demonstrate the appropriate physical readiness standard.

(i) For BRS SPOs a METS value of seven or greater would be a positive indicator of sufficient aerobic capacity to successfully demonstrate the half mile run associated with the BRS.

(ii) For ARS SPOs a METS value of 12 or greater would be a positive indicator of sufficient aerobic capacity to successfully demonstrate the mile run associated with the ARS.

(2) The designated physician may medically certify the BRS or ARS SPO for SPO duties and document that the SPO has a reasonable expectation of meeting the appropriate physical readiness standard. In this case, the SPO is deemed to have met the annual physical readiness qualification requirement without having to take the appropriate BRS or ARS test, unless the SPO is randomly selected pursuant to paragraph (f)(7) of this section.

(3) The designated physician may indicate the BRS or ARS SPO meets medical standards for SPO duties, but also indicate that the SPO does not appear to have the physical capability to pass the appropriate physical readiness test. In this case, the file must be immediately forwarded to the PPMD for review.

(4) If the PPMD concurs with the Designated Physician that the SPO does not have a reasonable expectation of being able to meet the readiness standard, the SPO may request to attempt to demonstrate the appropriate physical readiness test, which must be accomplished successfully within 30 days of the date of the medical certification for the SPO to remain in status. If the SPO chooses not to attempt to demonstrate the readiness standard, then the SPO must be removed immediately from duties associated with that physical readiness standard. Should the SPO fail to meet the standard, the retesting process described below in paragraph (g) of this section must be followed. Ultimate return to duties associated with that standard would require following the new hire process of medical clearance for SPO duties and then physically demonstrating the readiness standard which had not been met.

(5) Should the PPMD determine that the SPO does appear to have a reasonable expectation of meeting the appropriate physical readiness standard, the SPO is deemed to have met the annual qualification requirement for the appropriate physical readiness standard.

(6) The Designated Physician may find that the SPO cannot be medically certified for SPO duties. In this case, the SPO must be removed from armed status with appropriate PPMD review and medical intervention recommendations.

(7) Each year, 10 percent of the BRS and ARS SPO populations (supervisors included) at each site must be randomly selected by the employer and physically tested pursuant to paragraph (g) of this section. At the beginning of the testing year as established by each site, the site must ensure that a sufficient number of individuals and alternates are selected in one drawing to ensure that the 10 percent testing requirement can be achieved even though some SPOs selected may not receive a reasonable expectation determination for the Designated Physician as identified in paragraph (f)(2) of this section. Once 10 percent of the SPOs successfully demonstrating the standard has been achieved, the remaining alternates are not required to be physically tested unless they do not receive a reasonable expectation determination. The identity of an individual as a selectee for testing shall be kept confidential by the employer in a manner that ensures this information does not become known to the selected individual, the PPMD, and the Designated Physician until after the individual SPO has been deemed to have a reasonable expectation of meeting the appropriate physical readiness standard pursuant to paragraphs (f)(2) or (5) of this section. The selected individuals must successfully complete the applicable physical readiness standard to retain SPO status. During a given year's testing, at least 90 percent of those tested in each physical readiness category must meet the requirements.

(8)(i) Should the passing percentage of those randomly selected and attempting to physically demonstrate the standard in a particular physical readiness category at a particular site drop below 90 percent (on the first attempt) then all SPOs in that category at that site must be tested on their ability to physically demonstrate the standard. The following parameters apply.

(A) All percentages are based upon first attempts.

(B) The total population of SPOs (supervisors included) in that physical readiness category at the beginning of that testing year at that site must be used to determine the percentage thresholds.

(C) The 100 percent testing of SPOs in that category must commence immediately upon the failure that renders achievement of a 90 percent success rate mathematically impossible for that readiness category during that testing year. The date of this failure will establish the anniversary date of the new testing year.

(D) An insufficient number of randomly selected individuals and alternates available to constitute the 10 percent selection criterion represents a failure to achieve the 90 percent threshold. Identification of additional randomly selected individuals for that testing year is not authorized.

(ii) The 100 percent testing described in paragraph (f)(8)(i) of this section must continue for a minimum of 365 days. With a 95 percent successful demonstration rate of the standard over the year, 10 percent testing may return at the beginning of the new testing year.

(iii) Should 95 percent successful demonstration not be achieved in the 365 days of 100 percent testing, the 100 percent testing described in paragraph (f)(8)(i) of this section must continue for the next 365 days under the conditions specified in paragraphs (f)(8)(i)(A) through (D) of this section. This process must be repeated until 95 percent successful demonstration is achieved.

(g) Physical testing for BRS and ARS SPOs. The following procedures apply to an individual physically demonstrating the physical readiness standards for applicants and incumbent SPOs.

(1) Incumbent BRS and ARS SPOs randomly selected for physical testing pursuant to paragraph (f) of this section in any given year shall physically meet the applicable physical readiness standard within 30 days of their anniversary date.

(2) Incumbent SPOs shall physically meet the applicable physical readiness standard prior to their assignment to duties which require a more stringent standard.

(3) All newly hired SPOs must physically meet the most stringent standard required at the site.

(4) SPOs returning after an absence from protective force duties which encompasses their anniversary date must physically meet at least the standard they were required to meet when they left SPO duties, should such a position requiring that standard be available.

(5) Each applicant and incumbent SPO must be medically approved by the Designated Physician within thirty days prior to initial participation in any physical readiness training program and prior to attempting the applicable standard to determine whether the individual can undertake the standard without undue medical risk to the health and safety of the individual. Incumbents also must have successfully completed a physical readiness assessment within thirty days prior to their annual physical examination by the Designated Physician.

(6) Incumbent SPOs must qualify on the applicable standard annually by physically passing the required test if they have not received a reasonable expectation determination as described in paragraph (f) of this section. The testing protocol shall include mandated participation by the SPO being tested in pre-test warm-up and post-test cool-down activities as described in paragraph (c) of this section. The responsible person in charge of the qualification activity must inform the SPO that the attempt will be for qualification. Once this has been communicated by the person in charge, the attempt will constitute a qualification attempt. Ability to summon appropriate medical emergency response with the capability of responding within a reasonable time must be available at the testing site. An individual trained in cardio pulmonary resuscitation and automatic external defibrillator equipment must be present.

(7) Physical readiness re-qualification for randomly selected incumbent SPOs must occur not more than 30 days from the anniversary date. Failure to qualify within 30 days past the anniversary date must result in removal from SPO status for that physical readiness category. Not more than five attempts may be allowed during the 30-day period. All attempts must be made within 30 days of the medical approval required in paragraph (g)(5) of this section.

(8) Remedial training program: If an SPO fails all attempts pursuant to paragraph (g)(7) of this section for reasons other than injury or illness, the PF contractor must offer the SPO the opportunity to participate in a supervised physical readiness remedial training program developed by an exercise physiologist.

(i) Supervision of the physical readiness remedial training program may be accomplished by direct observation of the SPO during the training program by personnel knowledgeable of Department physical readiness program requirements, or by these personnel monitoring the SPO's progress on a weekly basis.

(ii) The remedial training program must be based upon an assessment of the SPO's individual physical readiness deficiencies and improvement needs which precluded the SPO from successfully completing the applicable physical readiness standard.

(iii) The remedial training program must not exceed a period of 30 days.

(9) Re-testing of incumbent SPOs after completion of remedial training program.

(i) Once an SPO has begun a remedial training program, it must be completed before the SPO may attempt the applicable standard.

(ii) Upon completion of the remedial training the ARS/BRS SPO must be offered an assessment using the same process that is used for the required semiannual assessment as required in paragraph (c)(4) of this section. Any deficiencies and improvement needs must be identified to the SPO.

(iii) The SPO has seven days from the completion date of the remedial training program to meet the applicable physical readiness qualification standard. Only one attempt during this seven-day period may be made unless circumstances beyond the testing organization or participant's control (e.g., severe weather, equipment failure, or injury as determined by the employer) interrupt the attempt. When the attempt is interrupted, the employer may reschedule it within seven days.

(iv) If the SPO meets the standard on the attempt specified in paragraph (f)(9)(iii) of this section, the original anniversary qualification date remains the same.

(v) Failure to meet the standard must result in the SPO being permanently removed from duties requiring ability to meet that physical readiness standard.

(vi) If an SPO requires remedial training during three consecutive annual qualification periods, then a fourth remediation shall not be offered for subsequent failures to achieve the physical readiness standard. The SPO must be permanently removed from duties requiring ability to meet that physical readiness standard.

(10) The physical readiness standards set forth in this part may not be waived or exempted. Additional time, not to exceed six months, may be granted on a case-by-case basis for those individuals who, because of a temporary medical condition or physical injury certified by the Designated Physician, are unable to satisfy the physical readiness standards within the required period without suffering injury. Additional time totaling more than one year may not be granted. When additional time is granted:

(i) The granting of such time does not eliminate the requirement for the incumbent SPO to be removed from that SPO physical readiness standard status during the time extension.

(ii) When additional time is granted because of an inability to qualify without a certified medical condition or injury, the PF member is not entitled to temporary removal protection benefits. Granting additional time due to deconditioning is not authorized.

(iii) Upon completion of the additional time period and requisite physical readiness training, as applicable, the incumbent SPO must be assessed using the same process that is used for the semiannual assessment as required in paragraph (c)(4) of this section if the results indicate the SPO is ready to take the test. The test must be taken within 30 days of medical clearance as described in § 1046.13(g).

(iv) For a duration exceeding three months, the SPO's original anniversary qualification date may be revised at the discretion of the employer to reflect the most recent date that the SPO qualified under the applicable standard, which will become the new anniversary qualification date.

§ 1046.17Training standards and procedures.

(a) Department contractors responsible for the management of PF personnel must establish training programs and procedures for PF members to develop and maintain the knowledge, skills and abilities required to perform assigned tasks. The site-specific qualification and training programs must be based upon criteria approved by the ODFSA.

(b) Department contractors responsible for training PF personnel must prepare and annually review mission essential tasks from which a JA or mission essential task list (METL) is developed. The JAs or METLs must be prepared detailing the required actions or functions for each specific PF job assignment. When a generic Department JA or METL does not exist for a site-specific PF assignment (e.g., dog handler, investigator, flight crew, pilot, etc.) the site must develop a site-specific JA or METL. The JA or METL must be used as the basis for local site-specific training programs.

(c) The Designated Physician must approve in advance the participation by individuals in training and examinations of training prior to an individual's beginning employment as a PF member and annually thereafter.

(d) The formal PF training program must:

(1) Be based on identified essential functions and job tasks, with identified levels of knowledge, skills and abilities needed to perform the tasks required by a specific position;

(2) Be aimed at achieving at least a well-defined, minimum level of competency required to perform each essential function and task acceptably, with or without reasonable accommodations;

(3) Employ standardized instructional guidelines, based on approved curricula, with clear performance objectives as the basis for instruction;

(4) Include valid performance-based testing to determine and certify job readiness;

(5) Be documented so that individual and overall training status is easily accessible. Individual training records and certifications must be retained for at least one year after termination of the employee from employment as a member of the PF;

(6) Incorporate the initial and maintenance training and training exercise requirements expressly set forth in this part and as otherwise required by DOE;

(7) Be reviewed and revised, as applicable, by PF management on an annual basis; and

(8) Be reviewed and approved by the local ODFSA on an annual basis.

(e) SOs—(1) SO initial training requirements. (i) Prior to initial assignment to duty, unless they previously have been employed as an SPO at the same DOE facility, each SO must successfully complete a basic SO training course, approved by the local ODFSA, designed to provide the knowledge, skills, and ability needed to competently perform all essential functions and tasks associated with SO job responsibilities.

(ii) The essential functions and minimum competency levels must be determined by a site-specific JA or METL. The essential functions and minimum competency levels must include, but are not limited to, the knowledge, skills, and abilities required to perform the essential functions set forth in this part; task areas as specified by DOE; and any other site-specific task areas that will ensure the SO's ability to perform all aspects of the assigned position under normal and emergency conditions without posing a direct threat to the SO or to others.

(2) SO maintenance training. Each SO must successfully complete an annual course of maintenance training to maintain the minimum level of competency required for the successful performance of tasks and essential functions associated with SO job responsibilities. The type and intensity of training must be based on a site-specific JA or METL. Failure to achieve a minimum level of competency must result in the SO's placement in a remedial training program. The remedial training program must be tailored to provide the SO with the necessary training to afford a reasonable opportunity to meet the level of competency required by the job analysis. Failure to demonstrate competency at the completion of the remedial program must result in loss of SO status.

(3) SO knowledge, skills, and abilities. Each SO must possess the knowledge, skills, and abilities necessary to protect Department security interests from the theft, sabotage, and other acts that may harm national security, the facility, its employees, or the health and safety of the public. The requirements for each SO to demonstrate proficiency in, and familiarity with, the knowledge, skills, and abilities and the responsibilities necessary to perform the essential functions of the job must be based on the JA or METL.

(f) SPOs—(1) SPO initial training requirements. Prior to initial assignment to duty, in addition to meeting SO training requirements described above in paragraph (e)(1) of this section, each SPO must successfully complete the approved Department basic SPO training course. SPOs who are rehired at the same DOE facility or who have worked as an SPO at another DOE facility are not required to retake the basic training course as determined by a site-specific assessment of the individual. In addition to the basic SPO training course, SPO initial training must include successful completion of site-specific training objectives derived from a site-specific JA or METL, task areas as specified by DOE, and any other site-specific task areas that will ensure the SPO's ability to perform all aspects of the assigned position under normal and emergency conditions without posing a direct threat to the SPO or to others.

(2) SPO maintenance training. In addition to meeting the SO maintenance training requirements described in paragraph (e)(2) of this section, each SPO must successfully complete an annual course of maintenance training to maintain the minimum level of competency required for the successful performance of essential functions and tasks associated with SPO job responsibilities. The type and intensity of training must be determined by a site-specific JA or METL. Failure to achieve a minimum level of competency must result in the SPO being placed in a remedial training program. The remedial training program must be tailored to provide the SPO with necessary training to afford a reasonable opportunity to meet the level of competency required by the JA or METL within clearly established time frames. Failure to demonstrate competency at the completion of the remedial program must result in loss of SPO status.

(3) SPO knowledge, skills and abilities. In addition to meeting the SO knowledge, skills and ability requirements described in paragraph (e)(3) of this section, the requirements for each SPO to demonstrate proficiency in, and familiarity with, the responsibilities identified in the applicable JA or METL and proficiency in the individual and collective knowledge, skills, and abilities necessary to perform the essential functions and the job tasks must be based on their applicable JA or METL.

(g) SRT Members. In addition to satisfying the initial and maintenance training requirements for SPOs and meeting the SPO knowledge, skill, and ability requirements, SRT members must meet the following requirements.

(1) SRT initial training requirements. Prior to initial assignment to duty, each SRT-qualified SPO must successfully complete the current Department-approved SRT basic qualification course designed to provide at least the minimum level of knowledge, skills, and ability needed to competently perform all the identified essential functions of the job and tasks associated with SRT job responsibilities. SPOs who have previously successfully completed the SRT basic qualification course to work at another DOE facility do not have to retake the SRT basic qualification as determined by a site-specific assessment of the individual. After completion of the SRT basic qualification course, the SRT-qualified SPO must participate in a site-specific training program designed to provide the minimum level of knowledge and skills needed to competently perform all the identified essential functions of the job and tasks associated with site-specific SRT job responsibilities. The site-specific essential functions and minimum levels of competency must be based on a site-specific JA or METL, task areas as specified by DOE, and any other site-specific task areas that will ensure the SRT-qualified SPO's ability to perform all aspects of the assigned position under normal and emergency conditions without posing a direct threat to the SPO or to others.

(2) SRT maintenance training. After assignment to duties as a member of an SRT, an SRT-qualified SPO must receive maintenance training annually on each area required by a site-specific JA or METL. The annual maintenance training program must be completed over two or more sessions appropriately spaced throughout the year. Failure to achieve a minimum level of competency must result in the SRT-qualified SPO being placed in a remedial training program or removal from SRT qualification status, as determined by contractor management. The remedial training program must be tailored to provide the SRT-qualified SPO with necessary training to afford a reasonable opportunity to meet the level of competency required by the JA or METL. Failure to demonstrate competency at the completion of the remedial program must result in loss of SRT-qualification status.

(3) SRT knowledge, skills, and abilities. The requirements for each SRT-qualified SPO to demonstrate proficiency in, and familiarity with, the responsibilities identified in the applicable JA or METL and proficiency in the individual and collective knowledge, skills, and abilities necessary to perform the job tasks must include, but are not limited to, those identified for SPOs and based on their applicable JA or METL.

(h) Specialized requirements. PF personnel who are assigned specialized PF responsibilities outside the scope of normal duties must successfully complete the appropriate basic and maintenance training, as required by DOE and other applicable governing regulating authorities (e.g., Federal Aviation Administration). This training must enable the individual to achieve and maintain at least the minimum level of knowledge, skills, ability needed to competently perform the tasks associated with the specialized job responsibilities, as well as maintain mandated certification, when applicable. Such personnel may include, but are not limited to, flight crews, instructors, armorers, central alarm system operators, crisis negotiators, investigators, canine handlers, and law enforcement specialists. The assignment of such specialists and scope of such duties must be based on site-specific needs and approved by the local ODFSA.

(i) Supervisors—(1) Supervisor training requirements. Prior to initial assignment to supervisory duty, each PF supervisor must successfully complete a supervisor training program designed to provide at least the minimum level of knowledge, skills, ability needed to competently perform all essential functions of the job and tasks associated with supervisory job responsibilities. Appropriate annual refresher training must be provided. The essential functions and minimum levels of competency must be based on a site-specific JA or METL and must include the essential functions and task areas identified for the level of PF personnel to be supervised. Armed supervisors of SPOs must be trained and qualified as SPOs. SPO supervisors must meet applicable medical and physical readiness qualification and certification standards for assigned response duties.

(2) Supervisor knowledge, skills, and abilities. Each PF supervisor must possess the skills necessary to effectively direct the actions of assigned personnel. Each supervisor must demonstrate proficiency in, and familiarity with, the responsibilities identified in the applicable JA or METL and proficiency in the skills and abilities necessary to perform those jobs.

(j) PF training exercises. Exercises of various types must be included in the training and performance testing process for the purposes of achieving and maintaining skills and assessing individual, leader and collective competency levels. The types and frequency of training exercises must be determined by the training needs analysis conducted as part of the training program, and approved by the local ODFSA. These exercises must be planned and conducted to provide site-specific training to the PF in the prevention of the successful completion of potential adversarial acts as specified by DOE.

(k) Firearms qualification standards. (1) No person may be authorized to carry a firearm as an SPO until the responsible local ODFSA is assured that the individual who is to be armed with individually issued/primary weapons is qualified in accordance with firearms standards or that, in the case of post-specific crew-served and special weapons, a determination of proficiency and ability to operate the weapon safely has been made.

(2) As a minimum, each SPO must meet the applicable firearms qualification or proficiency standards every six months under daylight and reduced lighting conditions. Requalification or proficiency demonstration must occur no earlier than 30 days prior to, and no later than 30 days after, six months from the previous qualification. In the case of individually assigned/primary weapons, if the SPO does not re-qualify during the re-qualification period, the individual's authority to be armed and to make arrests must be suspended following the unsuccessful qualification attempts as provided in paragraph (k)(11) of this section. For post-specific and crew-served weapons, if the SPO does not demonstrate proficiency during the re-qualification period, the individual's eligibility for assignment to posts having those post-specific or crew-served weapons must be suspended until such time as proficiency can be demonstrated. To facilitate training programs, employers may adjust qualification and proficiency demonstration schedules as long as the maximum durations as noted in this section are not exceeded.

(3) PF personnel must maintain firearms proficiency on a continuing basis. Therefore, an SPO may be required to demonstrate an ability to meet the applicable firearms qualification or proficiency standard(s) during a Headquarters or field audit, survey, inspection, or other situation directed by the local ODFSA. Failure to meet the standard must be treated as if the individual failed the first attempt during routine semiannual qualification or proficiency demonstration. See paragraph (k)(10) of this section. In the event the SPO fails both attempts, the requirements of paragraphs (k)(11) through (14) of this section apply.

(4) Each SPO must qualify with primary/individually-issued weapons required by duty assignment (to include: specialty weapons, long gun and/or handgun, if so armed). Qualification is the semiannual act of achieving a set score while demonstrating the ability to load, operate, and discharge a firearm or weapon system accurately and safely (to include clearing the weapon at the conclusion of firing) according to a Departmentally-approved course of fire. At least one of the two semiannual qualifications must be accomplished with the same type of firearm or weapon system and ammunition equivalent in trajectory and recoil as that authorized for duty use. All qualification courses must: be constrained by time, identify the maximum amount of available ammunition, and include minimum scoring percentages required to qualify.

(5) For the purposes of this part, weapons system simulator means a device that closely simulates all major aspects of employing the corresponding actual firearm/weapons system, without firing live ammunition. The simulator should permit all weapons-handling and operational actions required by the actual weapon, and should allow the use of sight settings similar to the corresponding actual weapon with assigned duty loads. Additionally, when weapons or weapons system simulators are used for qualification testing of protective force officers, the operation of the simulated weapon must closely approximate all weapons handling and operational manipulation actions required by the actual weapon. The simulation system must precisely register on-target hits and misses with accuracy comparable to the actual weapon at the same shooting distances. The weight, balance, and sighting systems should closely replicate those of the corresponding actual weapon with assigned duty loads, and noise signatures and felt recoil should be simulated to the extent technically feasible.

(6) SPOs assigned to posts which require the operation of post-specific specialized or crew-served weapons must be trained and must demonstrate proficiency in the safe use of such weapons in a tactical environment. These proficiency courses must provide for the demonstration of skills required to support the site security plan. Ammunition equivalent in both trajectory and recoil to that used for duty must be used during an initial demonstration of proficiency. A weapons proficiency demonstration means a process based on a predetermined, objective set of criteria approved by the respective program office in consultation with the Office of Health, Safety and Security that results in a grade (e.g., pass/fail). The process must ensure that an individual (or team, for crew-served weapons) demonstrates the ability to perform all weapons-handling and operational manipulations necessary to load, operate, and discharge a weapon system accurately and safely (to include clearing/returning to safe mode the weapon system at the conclusion of firing), without the necessity for scoring targets during the course of fire. Proficiency courses of fire must include tactically-relevant time constraints. Demonstrations of proficiency are allowed with the actual weapon and assigned duty load, with alternate loads (e.g., frangible or dye-marking rounds), or with authorized weapons system simulators, as defined in this section. Proficiency courses of fire must be tactically relevant.

(7) Weapon system simulators may be used for training, familiarization, and semiannual proficiency verifications (e.g., engaging moving vehicles and/or aircraft). Demonstrations of proficiency must include all weapons-handling and operational manipulations necessary to load, operate, and discharge a weapon system accurately and safely (to include clearing the weapon at the conclusion of firing) according to a Departmentally-approved course of proficiency demonstration. Weapon demonstrations of proficiency are allowed with the same type of firearm or weapon system and ammunition equivalent in trajectory and recoil as that authorized for duty use, or with firearms simulators that have the features and capabilities as described in paragraph (k)(5) of this section.

(8) Each SPO must be given a presentation on the basic principles of weapons safety prior to any range activity. This does not require that a weapons safety presentation be given for each course of fire, but does require that, prior to the start of range training or qualification for a given period (e.g., initial qualification, semiannual qualification, training, familiarization, proficiency testing, or range practice), each SPO must be given a range and weapon safety presentation.

(9) Standardized Departmentally-approved firearm/weapon qualification courses must be used for qualification. Site-specific conditions and deployment of specialized firearms/weapons may justify requirements for developing and implementing supplementary special training and proficiency courses. Proficiency courses or demonstrations must be constrained by time limits. Where standardized Department firearms/weapons courses do not exist for a weapons system that is required to address site-specific concerns, both daylight and reduced lighting site-specific qualification or proficiency courses (as applicable) must be developed. After approval by the local ODFSA, the developed courses must be submitted to the respective program office for review and approval.

(10) When qualification or demonstration of proficiency is prescribed, SPOs must be allowed two attempts to qualify with assigned firearms/weapons semiannually. A designated firearms instructor or other person in charge of the range must ensure the shooter understands that the attempt will be for qualification. Once this has been communicated by the firearms instructor or person in charge, the attempt must constitute an attempt to qualify or demonstrate proficiency. The SPO must qualify or demonstrate proficiency during one of these attempts.

(11) Upon suspension of an SPO's authority to carry firearms, in order to return to status, the SPO must enter a standardized, remedial firearms/weapons training program developed by the respective site PF contractor firearms training staff. The remedial training program must be a combination of basic weapon manipulation skills, firearms safety, and an additional segment of time individually designed to provide the SPO with the necessary individual training to afford a reasonable opportunity to meet the firearms/weapons qualification or proficiency standards by addressing specific areas of performance.

(12) When qualification is required following the completion of the remedial training course, any SPO who fails to qualify after two subsequent attempts must lose SPO status and the authority to carry firearms/weapons and to make arrests. When weapons-specific safety or proficiency cannot be demonstrated, the SPO must not be assigned to posts that require the operation of that weapon until such safety or proficiency standards can be met.

(13) Any SPO who requires remedial training on three consecutive semiannual qualification periods with the same type of firearm/weapon (caliber, make, and model, but not necessarily the exact same weapon) must be removed from duties that require the issuance of that weapon. If the weapon is considered a primary duty weapon; e.g., rifle or handgun, the officer must be removed from SPO status based on recurring inability to maintain qualification status. If an SPO requires remedial training for the same firearm during three consecutive semiannual qualification periods, then a fourth remediation shall not be offered for subsequent failures to achieve that firearms qualification standard. The employer may reinstate an individual removed from SPO status if the individual can demonstrate the ability to pass the current Department qualification course for that firearm. Prior to being given the opportunity to obtain reinstatement, the SPO must provide the employer written validation from a certified firearms instructor that the SPO has demonstrated the ability to meet applicable DOE standards. All such training and validation expenses are solely the responsibility of the SPO. If reinstatement under these circumstances occurs, the employer must provide all other training for returning protective force members according to the requirements of this part and as otherwise specified by DOE.

(14) An appropriate Department record must be maintained for each SPO who qualifies or who attempts to qualify or to demonstrate proficiency. Records must be retained for one year after separation of a PF member from SPO duties, unless a longer retention period is specified by other requirements. A supervisor or a training officer must be designated, in writing, as the individual authorized to certify the validity of the scores.

§ 1046.18Access authorization.

PF personnel must have the access authorization for the highest level of classified matter to which they have access or SNM which they protect. The specific level of access authorization required for each duty assignment must be determined by the site security organization and approved by the local ODFSA. At sites where access authorizations are not required, SPOs must have at least a background investigation based upon a national agency check with local agency and credit check with maximum duration between reinvestigations not to exceed 10 years. This background investigation must be favorably adjudicated by the applicable Departmental field element. Those SPOs who have access to Category I or Category II quantities of SNM as defined by DOE or with access to credible roll-up potential to Category I according to site-specific determination must have and maintain a DOE “Q” access authorization.

§ 1046.19Medical and fitness for duty status reporting requirements.

(a) SPOs and SOs must report immediately to their supervisor that they have a known or suspected change in health status that might impair their capacity for duty. To protect their medical confidentiality, they are required only to identify that they need to see the Designated Physician. SOs and SPOs must provide to the Designated Physician detailed information on any known or suspected change in health status that might impair their capacity for duty or the safe and effective performance of assigned duties.

(b) SPOs and SOs must report to their supervisor and the Designated Physician for a determination of fitness for duty when prescription medication is started or a dosage is changed, to ensure that such medication or change in dosage does not alter the individual's ability to perform any of the essential functions of the job. SPOs and SOs must report to their supervisor and the Designated Physician for a determination of fitness for duty within 24 hours, and prior to assuming duty, after any medication capable of affecting the mind, emotions, and behavior is started, to ensure that such medication does not alter the individual's ability to perform any of the essential functions of the job. Where a written reasonable accommodation determination already has been made, any additional change to an SO's or SPO's health status affecting that accommodation must be reported to their supervisor and the Designated Physician for a determination of fitness for duty.

(c) Supervisory personnel must document and report to the Designated Physician any observed physical, behavioral, or health changes or deterioration in work performance in SPOs and SOs under their supervision.

(d)(1) PF contractor management must inform the Designated Physician of all anticipated job transfers or recategorizations including:

(i) From SO to FPRS, BRS, ARS, or SRT Member;

(ii) From FPRS, to BRS, ARS or SRT Member;

(iii) From BRS to ARS or SRT Member;

(iv) From ARS to SRT Member;

(v) From SRT Member to ARS, BRS, FPRS or SO;

(vi) From ARS to BRS, FPRS, or SO;

(vii) From BRS to FPRS or SO;

(viii) From FPRS to SO; and

(ix) From PF to other assignments.

(2) For downward re-categorizations in paragraphs (d)(1)(v) through (ix) of this section, the anticipated transfer notification must include appropriate additional information such as the apparent inability of the employee to perform essential functions, meet physical readiness standards, or to serve without posing a direct threat to self or others.

(e) The Designated Physician must notify the PPMD to ensure appropriate medical review can be made regarding any recommended or required changes to the PF member's status.

§ 1046.20Medical records maintenance requirements.

(a) The Designated Physician must maintain all medical information for each employee or applicant as a confidential medical record, with the exception of the psychological record. The psychological record is part of the medical record but must be stored separately, in a secure location in the custody of the evaluating psychologist. These records must be kept in accordance with the appropriate DOE Privacy Act System of Records, available at http://energy.gov/sites/prod/files/maprod/documents/FinalPASORNCompilation.1.8.09.pdf.

(b) Nothing in this part is intended to preclude access to these records according to the requirements of other parts of this or other titles. Medical records maintained under this section may not be released except as permitted or required by law.

(c) Medical records must be retained according to the appropriate DOE Administrative Records Schedule, available at: http://energy.gov/sites/prod/files/cioprod/documents/ADM_1%281%29.pdf (paragraph 21.1)

(d) When an individual has been examined by a Designated Physician, all available history and test results must be maintained by the Designated Physician under the supervision of the PPMD in the medical record, regardless of whether:

(1) The individual completes the examination;

(2) It is determined that the individual cannot engage in physical training or testing and cannot perform the essential functions of the job; or

(3) It is determined that the individual poses a direct threat to self or others.

(e) The Designated Physician must provide written work restrictions to the affected SPO/SO and PF management. PF management must develop, approve, implement, and operate according to site-specific plans based upon the PF contractor's operational and contract structure to ensure confidentiality of PF medical information. This plan must permit access only to those with a need to know specific information, and must identify those individuals by organizational position or responsibility. The plan must adhere to all applicable laws and regulations, including but not limited to the Privacy Act of 1974, the Health Insurance Portability and Accountability Act of 1996, the Family and Medical Leave Act of 1993, and the ADA, as amended by the ADAAA.

Pt. 1047PART 1047—LIMITED ARREST AUTHORITY AND USE OF FORCE BY PROTECTIVE FORCE OFFICERSGeneral ProvisionsSec.1047.1Purpose.1047.2Scope.1047.3Definitions.1047.4Arrest authority.1047.5Exercise of arrest authority—general guidelines.1047.6Use of physical force when making an arrest.1047.7Use of deadly force.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.).

Source:

50 FR 30929, July 31, 1985, unless otherwise noted.

General Provisions

§ 1047.1Purpose.

The purpose of this part is to set forth Department of Energy (hereinafter “DOE”) policy and procedures on the exercise of arrest authority and use of force by protective force personnel.

§ 1047.2Scope.

This part applies to DOE and DOE contractor protective force personnel armed pursuant to section 161.k. of the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) to protect nuclear weapons, special nuclear material, clasified matter, nuclear facilities, and related property.

§ 1047.3Definitions.

(a) Act means section 161.k. of the Atomic Energy Act of 1954, as amended, (42 U.S.C. 2201.k.).

(b) Arrest means any act, including taking, seizing or detaining of a person, that indicates an intention to take a person into custody and that subjects the person to the control of the person making the arrest.

(c) Citizen's Arrest means that type of arrest which can be made by citizens in general and which is defined in the statutory and case law of each state.

(d) Contractor means contractors and subcontractors at all tiers.

(e) LLEA means local law enforcement agencies: city, county; and state.

(f) Offender means the person to be arrested.

(g) Protective Force Officer means any person authorized by DOE to carry firearms under section 161.k. of the Atomic Energy Act of 1954.

(h) Special Nuclear Material (SNM) means: (1) Plutonium, uranium enriched in the isotope 233 or in the isotope 235, and any other material which DOE, pursuant to the provisions of Section 51 of the Atomic Energy Act of 1954, determines to be special nuclear material, but does not include source material; or (2) any material artificially enriched by any of the foregoing, but does not include source material.

§ 1047.4Arrest authority.

(a) Under the Act, the authority of a DOE protective force officer to arrest without warrant is limited to the performance of official duties and should be exercised only in the enforcement of:

(1) The following laws only if property of the United States which is in the custody of the DOE or its contractors is involved:

(i) Felonies: (A) Arson—18 U.S.C. 81—(only applicable to “special maritime and territorial jurisdiction of the United States” as defined by 18 U.S.C. 7).

(B) Building or property within special maritime and territorial jurisdiction—18 U.S.C. 1363—(only applicable to “special maritime and territorial jurisdiction of United States” as defined by 18 U.S.C. 7).

(C) Civil disorder—18 U.S.C. 231.

(D) Communication lines, stations or systems—18 U.S.C. 1362.

(E) Concealment, removal or mutilation generally—18 U.S.C. 2071.

(F) Conspiracy—18 U.S.C. 371—(violation of this section is a felony if the offense which is the object of the conspiracy is a felony).

(G) Destruction of motor vehicles or motor vehicle facilities—18 U.S.C. 33.

(H) Explosives—18 U.S.C. 844(f).

(I) Government property or contracts—18 U.S.C. 1361—(violation of section is a felony if property damage exceeds $100).

(J) Military, naval or official passes—18 U.S.C. 499—(pertains to forging or altering official passes).

(K) Personal property of the United States—18 U.S.C. 2112.

(L) Public money, property, or records—18 U.S.C. 641—(violation of section is a felony if the property value exceeds $100).

(M) Sabotage—18 U.S.C. 2151, 2153-2156.

(N) Violation under Physical Security Convention—18 U.S.C. 831.

(ii) Misdemeanors: (A) Conspiracy—18 U.S.C. 371—(violation of section is a misdemeanor if the offense which is the object of the conspiracy is a misdemeanor).

(B) Explosives—18 U.S.C. 844(g).

(C) Government property or contracts—18 U.S.C. 1361—(violation of section is a misdemeanor if the property damage does not exceed $100).

(D) Official badges, identification cards, other insignia—18 U.S.C. 701—(pertains to the manufacture, sale, and possession of official insignia).

(E) Public money, property or records—18 U.S.C. 641—(violation of section is a misdemeanor if the property value does not exceed $100).

(2) The following criminal provisions of the Atomic Energy Act:

(i) Felonies: (A) Section 222. Violation of Specific Sections—42 U.S.C. 2272.

(B) Section 223. Violation of Sections Generally. 42 U.S.C. 2273.

(C) Section 224. Communication of Restricted Data—42 U.S.C. 2274.

(D) Section 225. Receipt of Restricted Data—42 U.S.C. 2275.

(E) Section 226. Tampering with Restricted Data—42 U.S.C. 2276.

(ii) Misdemeanors: (A) Section 227. Disclosure of Restricted Data—42 U.S.C. 2277.

(B) Section 229. Trespass Upon Commission (DOE) Installations—42 U.S.C. 2278.

(C) Section 230. Photographing, etc., of Commission (DOE) Installations—42 U.S.C. 2278.b.

(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.

(1) In the presence of means that the criminal act must have taken place in the physical presence of (under the observation of) the protective force officer. Knowledge of the existence of a criminal violation obtained in any other way (e.g., information from other persons) is not sufficient to permit an arrest under this part of the Act.

(2) Reasonable grounds to believe means that, at the moment of arrest, either the facts and circumstances within the knowledge of the protective force officer, or of which the protective force officer had reasonably trustworthy information, were sufficient to cause a prudent person to believe that the suspect had committed or was committing the offense.

(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.

(d) Other Authority. The Act does not provide authority to arrest for violations of state criminal statutes or for violations of federal criminal statutes other than those listed in paragraph (a) of this section. Therefore, arrests for violations of such other criminal statutes shall be made by other peace officers (e.g., U.S. Marshals or Federal Bureau of Investigation (FBI) agents for federal offenses; LLEA officers for state or local offenses) unless:

(1) The protective force officer can make a citizen's arrest for the criminal offense under the law of the state,

(2) The protective force officer is an authorized state peace officer or otherwise deputized by the particular state to make arrests for state criminal offenses, or

(3) The protective force officer has been deputized by the U.S. Marshals Service or other federal law enforcement agency to make arrests for the criminal offense.

(e) In those locations which are within the “special maritime and territorial jurisdiction of the United States,” as defined in 18 U.S.C. 7, the Assimilative Crimes Act (18 U.S.C. 13) adopts the law of the state for any crime under state law not specifically prohibited by Federal statute and provides for federal enforcement of that state law. The local DOE Office of Chief Counsel, in coordination with contractor legal counsel, as appropriate, shall provide guidance in this matter.

§ 1047.5Exercise of arrest authority—general guidelines.

(a) In making an arrest, the protective force officer should announce his or her authority (e.g., “Security Officer”) and that the person is under arrest prior to taking the person into custody. If the circumstances are such that making such announcements would be useless or dangerous to the officer or others, the protective force officer may dispense with these announcements.

(b) The protective force officer at the time and place of arrest may search any arrested person for weapons and criminal evidence and the area into which the arrested person might reach for a weapon or to destroy evidence. Guidance on the proper conduct and limitations in scope of search and seizure of evidence shall be obtained from the local DOE Office of Chief Counsel, in coordination with contractor legal counsel, as appropriate.

(c) After the arrest is effected, the arrested person shall be advised of his or her constitutional right against self-incrimination (Miranda warnings). If the circumstances are such that making such advisement is dangerous to the officer or others, this requirement may be postponed until the immediate danger has passed.

(d) Custody of the person arrested should be transferred to other federal law enforcement personnel (i.e., U.S. Marshals or FBI agents) or to LLEA personnel, as appropriate, as soon as practicable. The arrested person should not be questioned or required to sign written statements unless:

(1) Questioning is necessary for security or safety reasons (e.g., questioning to locate a bomb), or

(2) Questioning is authorized by other federal law enforcement personnel or LLEA officers responsible for investigating the crime.

§ 1047.6Use of physical force when making an arrest.

(a) When a protective force officer has the right to make an arrest as discussed above, the protective force officer may use only that physical force which is reasonable and necessary to apprehend and arrest the offender; to prevent the escape of the offender; or to defend himself or herself or a third person from what the protective force officer believes to be the use or threat of imminent use of physical force by the offender. It should be noted that verbal abuse alone by the offender cannot be the basis under any circumstances for use of physical force by a protective force officer.

(b) Protective force officers shall consult the local DOE Office of Chief Counsel and contractor legal counsel, as appropriate, for additional guidance on use of physical force in making arrests.

§ 1047.7Use of deadly force.

(a) Deadly force means that force which a reasonable person would consider likely to cause death or serious bodily harm. Its use may be justified only under conditions of extreme necessity, when all lesser means have failed or cannot reasonably be employed. A protective force officer is authorized to use deadly force only when one or more of the following circumstances exists:

(1) Self-Defense. When deadly force reasonably appears to be necessary to protect a protective force officer who reasonably believes himself or herself to be in imminent danger of death or serious bodily harm.

(2) Serious offenses against persons. When deadly force reasonably appears to be necessary to prevent the commission of a serious offense against a person(s) in circumstances presenting an imminent danger of death or serious bodily harm (e.g. sabotage of an occupied facility by explosives).

(3) Nuclear weapons or nuclear explosive devices. When deadly force reasonably appears to be necessary to prevent the theft, sabotage, or unauthorized control of a nuclear weapon or nuclear explosive device.

(4) Special nuclear material. When deadly force reasonably appears to be necessary to prevent the theft, sabotage, or unauthorized control of special nuclear material from an area of a fixed site or from a shipment where Category II or greater quantities are known or reasonably believed to be present.

(5) Apprehension. When deadly force reasonably appears to be necessary to apprehend or prevent the escape of a person reasonably believed to: (i) have committed an offense of the nature specified in paragraphs (a)(1) through (a)(4) 1 of this section; or (ii) be escaping by use of a weapon or explosive or who otherwise indicates that he or she poses a significant threat of death or serious bodily harm to the protective force officer or others unless apprehended without delay.

1 These offenses are considered by the Department of Energy to pose a significant threat of death or serious bodily harm.

(b) Additional Considerations Involving Firearms. If it becomes necessary to use a firearm, the following precautions shall be observed:

(1) A warning, e.g. an order to halt, shall be given, if feasible, before a shot is fired.

(2) Warning shots shall not be fired.

Pt. 1048PART 1048—TRESPASSING ON STRATEGIC PETROLEUM RESERVE FACILITIES AND OTHER PROPERTYSec.1048.1Purpose.1048.2Scope.1048.3Unauthorized entry.1048.4Unauthorized introduction of weapons or dangerous materials.1048.5Violations.1048.6Posting.1048.7Applicability of other laws.Authority:

Sec. 662, Pub. L. No. 100-531, 102 Stat. 2652 (42 U.S.C. 7270b); section 6, Pub. L. No. 100-185, 101 Stat. 1280 (18 U.S.C. 3571(b)(5).

Source:

56 FR 1910, Jan. 17, 1991, unless otherwise noted.

§ 1048.1Purpose.

The regulations in this part are issued for the protection and security of: (a) The Strategic Petroleum Reserve (SPR), its storage or related facilities, and real property subject to the jurisdiction or administration, or in the custody of DOE under part B, title I of the Energy Policy and Conservation Act, as amended (42 U.S.C. 6231-6247) (EPCA); and (b) persons upon the SPR or other property subject to DOE jurisdiction under part B, title I of the EPCA.

§ 1048.2Scope.

The regulations in this part apply to entry into or upon all SPR storage or related facilities, and real property subject to DOE jurisdiction or administration, or in its custody under part B, title I of the EPCA, which have been posted with a notice of the prohibitions and penalties contained in this part.

§ 1048.3Unauthorized entry.

Unauthorized entry into or upon an SPR facility or real property subject to this part, without authorization, is prohibited.

§ 1048.4Unauthorized introduction of weapons or dangerous materials.

Unauthorized carrying, transporting, introducing or causing to be introduced into or upon an SPR facility or real property subject to this part, of a dangerous weapon, explosive or other dangerous material likely to produce substantial injury or damage to persons or property, is prohibited.

§ 1048.5Violations.

Willful unauthorized entry, or willful unauthorized introduction of weapons or dangerous materials into or upon real property subject to this part, constitutes a violation of these regulations. Violation of these regulations is a misdemeanor, and a person convicted of violating these regulations is subject to the maximum fine permitted by law, imprisonment for not more than one year, or both.

§ 1048.6Posting.

Notices stating the pertinent prohibitions of §§ 1048.3 and 1048.4 and the penalties of § 1048.5 will be conspicuously posted at all entrances of each facility or parcel of real property subject to the regulations in this part, and at such intervals along the perimeters thereof as will provide reasonable assurance of notice to persons about to enter.

§ 1048.7Applicability of other laws.

Nothing in this part shall be construed to affect the applicability of the provisions of State law or of any other Federal law.

[56 FR 1910, Jan. 17, 1991. Redesignated at 56 FR 48096, Sept. 24, 1991]

Pt. 1049PART 1049—LIMITED ARREST AUTHORITY AND USE OF FORCE BY PROTECTIVE FORCE OFFICERS OF THE STRATEGIC PETROLEUM RESERVESec.1049.1Purpose.1049.2Scope.1049.3Definitions.1049.4Arrest authority.1049.5Exercise of arrest authority—General guidelines.1049.6Exercise of arrest authority—Use of non-deadly force.1049.7Exercise of arrest authority—Use of deadly force.1049.8Training of SPR Protective Force Officers and qualification to carry firearms.1049.9Firearms and firearms incidents.1049.10Disclaimer.Authority:

42 U.S.C. 7101 et seq.

Source:

56 FR 58492, Nov. 20, 1991, unless otherwise noted.

§ 1049.1Purpose.

The purpose of these guidelines is to set forth internal Department of Energy (DOE) security policies and procedures regarding the exercise of arrest authority and the use of force by DOE employees and DOE contractor and subcontractor employees while discharging their official duties pursuant to section 661 of the Department of Energy Organization Act.

§ 1049.2Scope.

These guidelines apply to the exercise of arrest authority and the use of force, as authorized by section 661 of the Department of Energy Organization Act, as amended, 42 U.S.C. 7101 et seq., by employees of DOE and employees of DOE's SPR security contractor and subcontractor. These policies and procedures apply with respect to the protection of:

(a) The SPR and its storage or related facilities; and

(b) Persons upon the SPR or its storage or related facilities.

§ 1049.3Definitions.

(a) Act means sections 661 of the Department of Energy Organization Act, as amended, (42 U.S.C. 7270a).

(b) Arrest means an act resulting in the restriction of a person's movement, other than a brief consensual detention for purposes of questioning about a person's identity and requesting identification, accomplished by means of force or show of authority under circumstances that would lead a reasonable person to believe that he was not free to leave the presence of the officer.

(c) Contractor means a contractor or subcontractor at any tier.

(d) Deadly force means that force which a reasonable person would consider likely to cause death or serious bodily harm.

(e) Protective Force Officer means a person designated by DOE to carry firearms pursuant to section 661 of the Act.

(f) SPR means the Strategic Petroleum Reserve, its storage or related facilities, and real property subject to the jurisdiction or administration, or in the custody of the Department of Energy under part B of title I of the Energy Policy and Conservation Act (42 U.S.C. 6231-6247).

(g) Suspect means a person who is subject to arrest by a Protective Force Officer as provided in these guidelines.

§ 1049.4Arrest authority.

(a) Under the Act, the authority of a DOE Protective Force Officer to arrest without warrant is to be exercised only in the performance of official duties of protecting the SPR and persons within or upon the SPR.

(b) A Protective Force Officer is authorized to make an arrest for a felony committed in violation of laws of the United States, or for a misdemeanor committed in violation of laws of the United States if the offense is committed in the officer's presence.

(c) A Protective Force Officer also is authorized to make an arrest for a felony committed in violation of laws of the United States if the Officer has reasonably grounds to believe that the felony has been committed, or that the suspect is committing the felony, and is in the immediate area of the felony or is fleeing the immediate area of the felony. “Reasonable grounds to believe” means that the facts and circumstances within the knowledge of the Protective Force Officer at the moment of arrest, and of which the Protective Force Officer has reasonably trustworthy information, would be sufficient to cause a prudent person to believe that the suspect had committed or was committing a felony.

§ 1049.5Exercise of arrest authority—General guidelines.

(a) In making an arrest, and before taking a person into custody, the Protective Force Officer should:

(1) Announce the Protective Force Officer's authority (e.g., by identifying himself as an SPR Protective Force Officer);

(2) State that the suspect is under arrest; and

(3) Inform the suspect of the crime for which the suspect is being arrested. If the circumstances are such that making these announcements would be useless or dangerous to the Officer or to another person, the Protective Force Officer may dispense with these announcements.

(b) At the time and place of arrest, the Protective Force Officer may search the person arrested for weapons and criminal evidence, and may search the area into which the person arrested might reach to obtain a weapon to destroy evidence.

(c) After the arrest is effected, the person arrested shall be advised of his constitutional right against self-incrimination (“Miranda warnings”). If the circumstances are such that immediately advising the person arrested of this right would result in imminent danger to the Officer or other persons, the Protective Force Officer may postpone this requirement. The person arrested shall be advised of this right as soon as practicable after the imminent danger has passed.

(d) As soon as practicable after the arrest is effected, custody of the person arrested should be transferred to other Federal law enforcement personnel (e.g., U.S. Marshals or FBI agents) or to local law enforcement personnel, as appropriate, in order to ensure that the person is brought before a magistrate without unnecessary delay.

(e) Ordinarily, the person arrested shall not be questioned or required to sign written statements unless such questioning is:

(1) Necessary to establish the identity of the person arrested and the purpose for which such person is within or upon the SPR;

(2) Necessary to avert an immediate threat to security or safety (e.g., to locate a bomb); or

(3) Authorized by other Federal law enforcement personnel or local law enforcement personnel responsible for investigating the alleged crime.

§ 1049.6Exercise of arrest authority—Use of non-deadly force.

(a) When a Protective Force Officer is authorized to make an arrest as provided in the Act, the Protective Force Officer may use only that degree of non-deadly force that is reasonable and necessary to apprehend and arrest the suspect in order to prevent escape or to defend the Protective Force Officer or other persons from what the Officer reasonably believes to be the use or threat of imminent use of non-deadly force by the suspect. Verbal abuse by the suspect, in itself, is not a basis for the use of non-deadly force by a Protective Force Officer under any circumstances.

(b) Protective Force Officers should consult the local DOE Office of Chief Counsel and contractor legal counsel for additional guidance on the use of non-deadly force in the exercise of arrest authority, as appropriate.

§ 1049.7Exercise of arrest authority—Use of deadly force.

(a) The use of deadly force is authorized only under exigent circumstances where the Protective Force Officer reasonably believes that such force is necessary to:

(1) Protect himself from an imminent threat of death or from serious bodily harm;

(2) Protect any person or persons in or upon the SPR from an imminent threat of death or serious bodily harm.

(b) If circumstances require the use of a firearm by a Protective Force Officer, the Officer shall give a verbal warning (e.g., an order to halt), if feasible. A Protective Force Officer shall not fire warning shots under any circumstances.

§ 1049.8Training of SPR Protective Force Officers and qualification to carry firearms.

(a) Protective Force Officers shall successfully complete training required by applicable Department of Energy orders prior to receiving authorization to carry firearms. The Chief Health, Safety and Security Officer shall approve the course.

(b) Prior to initial assignment to duty, Protective Force Officers shall successfully complete a basic qualification training course which equips them with at least the minimum level of competence to perform tasks associated with their responsibilities. The basic course shall include the following subject areas:

(1) Legal authority, including use of deadly force and exercise of limited arrest authority;

(2) Security operations, including policies and procedures;

(3) Security tactics, including tactics for Protective Force Officers acting alone or as a group;

(4) Use of firearms, including firearms safety and proficiency with all types of weapons expected to be used;

(5) Use of non-deadly weapons, weapon-less self-defense, and physical conditioning;

(6) Use of vehicles, including vehicle safety in routine and emergency situations;

(7) Safety, first aid, and elementary firefighting procedures;

(8) Operating in such a manner as to preserve SPR sites and facilities;

(9) Communications, including methods and procedures.

(c) After completing training, and receiving the appropriate security clearance, Protective Force Officers shall be authorized to carry firearms and exercise limited arrest authority. Protective Force Officers shall receive an identification card, which must be carried whenever on duty and whenever armed.

(d) On an annual basis, each Protective Force Officer must successfully complete training sufficient to maintain at least the minimum level of competency required for the successful performance of all assigned tasks identified for Protective Force Officers.

(e) Protective Force Officers shall be qualified in the use of firearms by demonstrating proficiency in the use of firearms on a semiannual basis prior to receiving authorization to carry firearms. Protective Force Officers shall demonstrate proficiency in the use of all types of weapons expected to be used while on duty under both day and night conditions. In demonstrating firearms proficiency, Protective Force Officers shall use firearms of the same type and barrel length as firearms used by Protective Force Officers while on duty, and the same type of ammunition as that used by Protective Force Officers on duty. Before a Protective Force Officer is qualified in the use of firearms, the Officer shall complete a review of the basic principles of firearms safety.

(f) Protective Force Officers shall be allowed two attempts to qualify in the use of firearms. Protective Force Officers shall qualify in the use of firearms within six months of failing to qualify. If an Officer fails to qualify, the Officer shall complete a remedial firearms training program. A Protective Force Officer who fails to qualify in the use of firearms after completion of a remedial program, and after two further attempts to qualify shall not be authorized to carry firearms or to exercise limited arrest authority.

[56 FR 58492, Nov. 20, 1991, as amended at 71 FR 68738, Nov. 28, 2006]

§ 1049.9Firearms and firearms incidents.

(a) Protective Force Officers shall receive firearms of a type suitable to adequately protect persons and property within or upon the SPR. Firearms and ammunition shall be secured, inventoried, and maintained in accordance with applicable Department of Energy orders, when not in use.

(b) The authority of a Protective Force Officer to carry firearms and to exercise limited arrest authority shall be suspended if the Officer participates in an incident involving the use of firearms. In such circumstances, the Officer shall be assigned to other duties, pending completion of an investigation.

(c) Incidents involving the discharge of firearms shall be reported to the Department of Energy Headquarters Emergency Operations Center immediately, and to the SPR Project Management Office Security Division within 24 hours. The Strategic Petroleum Reserve Project Manager shall appoint a committee to investigate the incident.

§ 1049.10Disclaimer.

These guidelines are set forth solely for the purpose of internal Department of Energy guidance. These guidelines do not, and are not intended to, and may not be relied upon to, create any substantive or procedural rights enforceable at law by any party in any matter, civil or criminal. These guidelines do not place any limitations on otherwise lawful activities of Protective Force Officers or the Department of Energy.

Pt. 1050PART 1050—FOREIGN GIFTS AND DECORATIONSSubpart A—GeneralSec.1050.101Purpose and scope.1050.102Applicability.1050.103Definitions.1050.104Responsibilities and authorities.Subpart B—Guidelines for Acceptance of Foreign Gifts or Decorations1050.201Policy against accepting foreign gifts or decorations.1050.202Allowable acceptance of gifts.1050.203Acceptance of decorations.1050.204Advance approval for acceptance of gifts or decorations.Subpart C—Procedures and Enforcement1050.301Reports.1050.302Use or disposal of gifts and decorations accepted on behalf of the United States.1050.303Enforcement.Subpart D—Gifts to Foreign Individuals1050.401Prohibition against use of appropriated funds.Appendix I to Part 1050—DOE Form 3735.2—Foreign Gifts StatementAppendix II to Part 1050—DOE Form 3735.3—Foreign Travel StatementAuthority:

The Constitution of the United States, Article I, Section 9; 5 U.S.C. 7342; 22 U.S.C. 2694; 42 U.S.C. 7254 and 7262; 28 U.S.C. 2461 note.

Source:

45 FR 53972, Aug. 13, 1980, unless otherwise noted.

Subpart A—General

§ 1050.101Purpose and scope.

These regulations implement the provisions of the Foreign Gifts and Decorations Act (5 U.S.C. 7342), which establishes policies and procedures pertaining to the acceptance, use, and disposition of gifts or decorations from foreign governments. If an employee of Department of Energy (DOE) meets the requirements of these regulations, he or she is deemed to be in compliance with the DOE Conduct of Employees regulations, 10 CFR part 1010.

§ 1050.102Applicability.

These regulations apply to all DOE employees, including special Government employees, and civilian and military personnel of other Government agencies regularly detailed to DOE, and to spouses and dependents of such personnel. These regulations apply to all employees of the Federal Energy Regulatory Commission (FERC) to the extent the Commission by rule makes these regulations applicable to FERC employees. These regulations do not apply to gifts and bequests accepted by the Department as authorized by section 652 of the Department of Energy Organization Act (42 U.S.C. 7262), except as set forth in § 1050.202(d) of this part. These regulations do not apply to assistance from a foreign government for participation by DOE employees in foreign cultural exchange programs pursuant to the Mutual Educational and Cultural Exchange Act (22 U.S.C. 2458a).

§ 1050.103Definitions.

(a) Employee means—

(1) An employee of DOE or FERC as defined by 5 U.S.C. 2105 (employees of DOE contractors are specifically excluded);

(2) A special Government employee as defined in 18 U.S.C. 202(a), and an expert or consultant who is under contract to the DOE pursuant to 5 U.S.C. 3109, including, in the case of an organization performing services under such section, any individual involved in the performance of such services;

(3) A member of a Uniformed Service or an employee of another Government agency assigned or detailed to the DOE or FERC;

(4) The spouse of an individual described in paragraphs (a)(1) through (a)(3) of this section (unless such individual and his or her spouse are legally separated) or a dependent (within the meaning ot section 152 of the Internal Revenue Code of 1954) of such an individual, other than a spouse or dependent who is an employee under paragraphs (a)(1) through (a)(3).

(b) Foreign government means:

(1) Any unit of foreign governmental authority, including any foreign national, State, local, or municipal government;

(2) Any international or multinational organization whose membership is composed of any unit of foreign government described in paragraph (b)(1); and

(3) Any agent or representative of any such unit or such organization, while acting as such.

(c) Gift means a tangible or intangible present (other than a decoration) tendered by, or received from, a foreign government.

(d) Decoration means an order, device, medal, badge, insignia, emblem, or award tendered by, or received from, a foreign government.

(e) Minimal value means that value as defined in regulations prescribed by the Administrator of General Services, in consultation with the Secretary of State, to reflect changes in the consumer price index for the immediately preceding 3-year period in accordance with the definition of “minimal value” as set forth in the Federal Property Management Regulations of title 41 of the Code of Federal Regulations as applied to the Utilization, Donation, and Disposal of Foreign Gifts and Decorations.

(f) The Act means the Foreign Gifts and Decorations Act, 5 U.S.C. 7342.

(g) Appropriate General Counsel means either the DOE General Counsel when the employee involved is an employee of that portion of the DOE which excludes FERC, or the FERC General Counsel when the employee involved is an employee of FERC.

[45 FR 53972, Aug. 13, 1980, as amended at 59 FR 44896, Aug. 31, 1994]

§ 1050.104Responsibilities and authorities.

(a) The Director of Administration shall:

(1) Assure that all employees are given access to or a copy of the Act and these regulations;

(2) Maintain liaison with the Department of State and prepare Departmental reports to the Department of State consistent with the Act and these regulations;

(3) Provide advice and assistance on implementation of the act and these regulations, in coordination with the Assistant Secretary for International Affairs (IA) and the appropriate General Counsel;

(4) Collect and maintain for public inspection all employee statements submitted pursuant to these regulations;

(5) Arrange for independent appraisal of the value of gifts or decorations, upon the request of the General Services Administration or the Inspector General (or other appropriate DOE official); and

(6) Accept and maintain custody and make all determinations regarding the use and disposition of all gifts and decorations accepted by employees on behalf of the United States, in coordination with IA, the appropriate General Counsel, and, for gifts to the Secretary, Deputy Secretary or Under Secretary, the appropriate official in the Office of the Secretary.

(b) The Assistant Secretary for International Affairs (IA) shall assist the Directorate of Administration, where appropriate, in making determinations concerning the effects of the proposed acceptance, use, or disposition of a foreign gift or decoration on the foreign relations of the United States.

(c) The appropriate General Counsel shall assist the Directorate of Administration in matters relating to the interpretation and application of the Act, and these and any related regulations, and shall provide counseling and interpretation regarding the Act, and these and any related regulations, to employees.

(d) The Inspector General shall investigate suspected violations of these regulations pursuant to § 1050.303 below.

Subpart B—Guidelines for Acceptance of Foreign Gifts or Decorations

§ 1050.201Policy against accepting foreign gifts or decorations.

(a) The Constitution of the United States, Article I, section 9, clause 8, provides that “* * * no Person holding any Office of Profit or Trust under * * * [the United States], shall, without the consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any * * * foreign State.” In the Foreign Gifts and Decorations Act the Congress consented to the acceptance by Federal employees of gifts and decorations with certain constraints and under certain procedures. Acceptance of any gift or decoration not consistent with this Act, the Department of Energy Organization Act, or the regulations in this part is prohibited.

(b) No employee shall request or otherwise encourage the tender of a gift or decoration from a foreign government. No employee shall accept a gift or decoration from a foreign government except as provided in §§ 1050.202 or 1050.203 of this part and in accordance with the additional procedures set forth in §§ 1050.204 and 1050.301 of this part.

§ 1050.202Allowable acceptance of gifts.

(a) An employee may accept and retain gifts from foreign governments where the gift is tendered or received as a souvenir or mark of courtesy, and is of minimal value. Initial responsibility for determining the value of a gift lies with the employee.

(b) Subject to the prior approval requirements described in § 1050.204(a) of this part, an employee may accept gifts of more than minimal value, tendered as a souvenir or mark of courtesy, where it appears that refusal of the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States. Otherwise, an employee, when offered a gift of more than minimal value from a foreign government, other than a gift designated in paragraph (c) of this section, should advise the donor that acceptance of such gifts by the employee is contrary to the policy of the United States. If a gift described in this paragraph is accepted by an employee and not immediately returned thereby, it shall be deemed to have been accepted on behalf of the United States. Upon acceptance it becomes the property of the United States. Within 60 days after acceptance by the employee, the gift shall be deposited with the Directorate of Administration for disposal or official Departmental use as determined by the Directorate of Administration, in accordance with § 1050.302 of this part, and an appropriate statement shall be filed by the employee in accordance with § 1050.301(a) of this part.

(c) Subject to the prior approval requirements described in § 1050.204(a) of this part, an employee may accept and retain gifts of more than minimal value:

(1) Where the gift is in the nature of an educational scholarship.

(2) Where the gift is in the form of medical treatment.

An employee accepting a gift pursuant to this paragraph shall file an appropriate statement in accordance with § 1050.301(a) of this part.

(d) An employee may accept gifts (whether or not of minimal value) of travel or expenses for travel (such as transportation, food, lodging, or entertainment) taking place entirely outside of the United States where the provision of such travel or expenses is in accordance with diplomatic custom or treaty and where the Head of the employee's Office grants prior written approval. A spouse or dependent may accept gifts of travel or travel expenses when accompanying the employee, provided this is done with the prior written approval of the Head of the employee's Office. The Head of the employee's Office shall consult with the appropriate General Counsel in connection with granting approval under this paragraph. Travel or expenses for travel may not be accepted merely for the personal benefit, pleasure, enjoyment, or financial enrichment of the individual involved. An appropriate statement shall be filed in accordance with § 1050.301(b) of this part. When any portion of the travel (such as the origination or termination of a flight) is within the United States, it may not be paid for by a foreign government, except as set forth in paragraph (e) of this section.

(e) Pursuant to section 652 of the DOE Organization Act, an employee may accept gifts from the International Atomic Energy Agency or other energy-related international organizations (e.g., the Nuclear Energy Agency and the International Energy Agency) covering transportation expenses to or from a foreign country in connection with scientific or technical assistance projects of such agencies for which the Department of Energy has lead U.S. Government agency responsibility. Such gifts may be accepted only with the prior written approval of the Head of the employee's Office, who is hereby delegated authority to accept such gifts in accordance with section 652.

§ 1050.203Acceptance of decorations.

(a) An employee may accept, retain and wear a decoration tendered by a foreign government in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance.

(b) Acceptance of a decoration in accordance with paragraph (a) of this section shall be reviewed and approved by the Directorate of Administration in accordance with § 1050.204 of this part. Otherwise, it will be deemed to have been accepted on behalf of the United States, shall become the property of the United States, and shall be deposited, within 60 days of acceptance, with the Directorate of Administration for disposal or official Departmental use as determined by the Directorate of Administration in accordance with § 1050.302 of this part.

§ 1050.204Advance approval for acceptance of gifts or decorations.

(a) If an employee is advised that a gift of more than minimal value as described in § 1050.202 (b) or (c) is to be tendered to him or her, the employee shall, if time permits, request the written advice of the Directorate of Administration regarding the appropriateness of accepting or refusing the gift. A request for approval shall be submitted to the Directorate of Administration in writing, stating the nature of the gift and the reasons for which it is being tendered. The Directorate of Administration shall consult with Assistant Secretary for International Affairs and the appropriate General Counsel in connection with advising the employee. If such advice cannot be obtained and refusal of the gift would likely cause offense or embarrassment or otherwise adversely effect the foreign relations of the United States, the gift may be accepted, but the Directorate of Administration shall be informed as soon as possible. In either event, the employee shall proceed as provided in §§ 1050.202 and 1050.301 of this part.

(b) Where an employee is notified of the intent of a foreign government to award him a decoration for outstanding or unusually meritorious service, approval required under § 1050.203 should be obtained prior to acceptance of the award. A request for approval shall be submitted to the Directorate of Administration in writing, stating the nature of the decoration and the reasons for which it is being awarded. The Directorate of Administration shall consult with the Assistant Secretary for International Affairs and the appropriate General Counsel. If time does not permit the employee to obtain approval for the award of the decoration before its receipt, the employee may accept it, but shall seek such approval immediately thereafter.

Subpart C—Procedures and Enforcement

§ 1050.301Reports.

(a) Within 60 days of accepting a gift of more than minimal value, other than gifts of travel or travel expenses, which are covered in paragraph (b) of this section, an employee shall, in addition to depositing a tangible gift (e.g. wearing apparel, liquor, etc.) with the Directorate of Administration in accordance with § 1050.202 of this part, file with the Directorate of Administration a statement concerning the gift containing the information identified on the sample form set forth in appendix I. The form set forth in appendix I must also be filed if the aggregate value of gifts accepted by the recipient from all sources over any period of one year exceeds $250.

(b) Within 30 days after accepting travel or travel expenses in accordance with § 1050.202 of this part, an employee shall file with the Directorate of Administration a statement concerning the travel containing the information identified on the sample form set forth in appendix II. Such a statement need not be filed, however, if the travel is in accordance with specific travel arrangements made by the Department in cooperation with the foreign government.

(c) The Directorate of Administration shall:

(1) Maintain the statements filed pursuant to these regulations and make them available for public inspection and copying during regular business hours; and

(2) Not later than January 31 of each year compile and transmit to the Department of State for publication by the Department of State in the Federal Register a list of all statements filed pursuant to these regulations during the preceding calendar year.

§ 1050.302Use or disposal of gifts and decorations accepted on behalf of the United States.

(a) The Directorate of Administration shall accept and maintain custody of all tangible gifts and decorations accepted by employees on behalf of the United States pending their final disposition.

(b) Whenever possible, the gift or decoration shall be returned to the original donor. The Directorate of Administration shall examine the circumstances surrounding its donation, and, in consultation with the Assistant Secretary for International Affairs, assess whether any adverse effect upon the United States foreign relations might result from return of the gift or decoration to the donor. The appropriate officials of the Department of State shall be consulted if the question of an adverse effect arises.

(c) The Directorate of Administration may determine that the gift or decoration may be retained for the official use of the Department, if it can be properly displayed in an area at Headquarters or at a field facility accessible to employees or members of the public or if it is otherwise usable in carrying out the mission of the Department. The Assistant Secretary for International Affairs shall be consulted to determine whether failure to accept the gift or decoration for the official use of the Department will have an adverse effect on the foreign relations of the United States. In no case shall a gift or decoration be accepted for the official use of the Department when the enjoyment and beneficial use of the gift will accrue primarily to the benefit of the donee or any other individual employee. Gifts or decorations that are retained for the official use of the Department shall be handled in accordance with the provisions of paragraph (d) of this section when their official use is ended.

(d) If a gift or decoration is not retained for official use of the Department, or if its official use has ended, the Directorate of Administration shall, within 30 days after its deposit or after its official use has ended—

(1) Report the gift or decoration to the General Services Administration (GSA) for transfer, donation, or other disposal in accordance with the provisions of the Federal Property and Administrative Services Act of 1949 and the Federal Property Management Regulations at 41 CFR part 101-49, or

(2) If the gift or decoration is in cash, currency, or monies (except those with possible historic or numismatic value), or is a noncash monetary gift such as a check, money order, bonds, shares of stock, or other negotiable instrument, forward it to the Finance and Accounting Office for deposit with the Department of the Treasury.

(e) The Directorate of Administration shall retain custody of gifts and decorations not returned to the donor or retained for the official use of the Department until GSA directs it concerning their disposition. At the request of GSA, the Directorate of Administration shall arrange for appraisal of specific gifts and decorations.

§ 1050.303Enforcement.

(a) An employee who violates the provisions of the Act or these regulations may be subject to disciplinary action or civil penalty action as set forth in paragraphs (c) and (d) of this section.

(b) Suspected violations of the Act or these regulations shall be reported promptly to the appropriate General Counsel and the Inspector General.

(c) The Inspector General will be responsible for taking the following actions:

(1) If the results of an investigation by the Inspector General do not provide any support for a determination that a violation of the Act or these regulations has occurred, then no further action shall be taken.

(2) If it is determined that the employee knowingly and through actions within his own control has done any of the following, the matter shall be referred to the Attorney General for appropriate action:

(i) Solicited or accepted a gift from a foreign government in a manner inconsistent with the provisions of the Act and these regulations;

(ii) As the approved recipient of travel expenses failed to follow the procedures set forth in the Act and these regulations; or

(iii) Failed to deposit or report a gift as required by the Act and these regulations.

(3) If it is determined that the employee failed to deposit a tangible gift with the Directorate of Administration within 60 days, or to account properly for acceptance of travel expenses, or to comply with the requirements of these regulations relating to the disposal of gifts and decorations retained for official use, but that the criteria of knowledge and control specified in paragraph (c)(2) of this section for referral to the Attorney General have not been met, then the matter shall be referred by the Inspector General to appropriate Departmental officials for administrative action.

(d) As set forth in section 7342(h) of title 5, United States Code, the Attorney General may bring a civil action in any district court of the United States against any employee who knowingly solicits or accepts a gift from a foreign government not consented to by the Act, or who fails to deposit or report such gift as required by the Act. The court in which such action is brought may assess a civil penalty against such employee in any amount not to exceed the retail value of the gift improperly solicited or received plus $8,000.

[45 FR 53972, Aug. 13, 1980, as amended at 62 FR 46184, Sept. 2, 1997; 74 FR 66034, Dec. 14, 2009]

Subpart D—Gifts to Foreign Individuals

§ 1050.401Prohibition against use of appropriated funds.

No appropriated funds other than funds from the “Emergencies in the Diplomatic and Consular Service” account of the Department of State may be used to purchase any tangible gift of more than minimal value for any foreign individual unless such gift has been approved by the Congress.

[59 FR 44896, Aug. 31, 1994]

Pt. 1050, App. IAppendix I to Part 1050—DOE Form 3735.2—Foreign Gifts StatementEC01OC91.040Statement Concerning Gifts Received From a Foreign GovernmentItem 1. This statement is to be filed pursuant to the provisions of the Foreign Gifts and Decorations Act (5 U.S.C. 7342, as amended by Pub. L. 95-105, August 17, 1977) and DOE implementing regulations at 10 CFR part 1050. These provisions apply to foreign gifts tendered to or accepted by Federal employees and their spouses and dependents. The name of the employee should always be indicated in item 1; if the employee is the recipient of the gift then items 5 and 6 should be marked N/A-not applicable; if the recipient is a spouse or dependent, then the appropriate information should be included in items 5 and 6.Item 2. Self explanatory.Items 3 and 4. The Office or Division and the position of the employee should be indicated here regardless of whether the recipient is the employee or a spouse or dependent.Items 5 and 6. See above, Item 1.Item 7. Self explanatory.Item 8. Self explanatory.Item 9. Indicate the retail value in the United States at the time of acceptance. If there is any uncertainty as to the value of the gift, it is the recipient's responsibility to make a reasonable effort to determine value. If the value is $100 or under, and if the aggregate value of the gifts accepted by the recipient from all sources over any period of one year does not exceed $250, then the gift may be retained by the recipient and this Statement need not be submitted.Item 10. Identify in this item whether or not approval to accept the gift was sought or given in advance in accordance with § 1050.204 of the DOE regulations. Also identify those circumstances supporting a determination that refusal of the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States.Items 11 and 12. Self explanatory.Item 13. Though there is no assurance that the item will be sold or if it is sold that it will be feasible for the recipient to participate in the sale, GSA regulations provide for participation by the recipient where feasible.Pt. 1050, App. IIAppendix II to Part 1050—DOE Form 3735.3—Foreign Travel StatementEC01OC91.041Statement Concerning Acceptance of Travel or Travel Expenses From a Foreign GovernmentItem 1. This statement is to be filed pursuant to the provisions of the Foreign Gifts and Decorations Act (5 U.S.C. 7342, as amended by Pub. L. 95-105, August 17, 1977) and DOE implementing regulations at 10 CFR part 1050. These provisions apply to travel or travel expenses for travel entirely outside of the United States 1 tendered to or accepted by Federal employees and their spouses and dependents. The name of the employee should always be indicated in item 1; if the employee is the recipient of the travel or travel expenses, then items 5 and 6 should be marked N/A-not applicable; if the recipient is a spouse or dependent, then the appropriate information should be included in items 5 and 6.Item 2. Self explanatory.Items 3 and 4. The Office or Division of the employee should be indicated here regardless of whether the recipient is the employee or a spouse or dependent.Items 5 and 6. See above, Item 1.Item 7a. Indicate the location and mode of transportation and approximate value in U.S. dollars, if possible. Attach itinerary if available.Item 7b. Indicate nature and location of travel expenses provided and approximate value in U.S. dollars, if possible. Attach itinerary if available.Item 8. Indicate dates of travel.Item 9. Self explanatory.Item 10. Travel and travel expenses may be accepted in accordance with DOE regulations where the travel is official agency business. Spouses and dependents may accept such travel and expenses only when accompanying the employee. Item 10 therefore should be completed to identify the employee's official business whether the recipient is an employee or a spouse or dependent.Item 11. Identify in this item any treaty or diplomatic custom that related to acceptance of the travel or expenses, and any circumstances indicating that acceptance would be consistent with the interests of the U.S. Also provide information regarding any prior approval of the acceptance.Items 12, 13a, and 13b. Self explanatory.

1 The Congress has consented in Pub. L. 95-105 only to acceptance of travel or travel expenses that is entirely outside of the United States. Travel, any portion of which (such as the origination or termination of a flight) is within the United States, may not be paid for by a foreign government. All such travel must be handled within applicable DOE Travel Regulations and Standards of Conduct Regulations.

Pt. 1060PART 1060—PAYMENT OF TRAVEL EXPENSES OF PERSONS WHO ARE NOT GOVERNMENT EMPLOYEESSec.1060.101Persons who may be paid.1060.201Relatives, contractors, and assistance award recipients.1060.301Government employees.1060.401Applicability of internal DOE rules.1060.501Definitions.Authority:

Sec. 644, Pub. L. 95-91, 91 Stat. 599 (42 U.S.C. 7254).

Source:

46 FR 35631, July 10, 1981, unless otherwise noted.

§ 1060.101Persons who may be paid.

(a) Payment may not be authorized or approved for transportation, lodging, subsistence, or other travel expenses from DOE funds to, or on behalf of, a person who is not a Government employee unless such payment is made—

(1) Pursuant to an invitation received by that person from the Department to confer with a DOE employee on matters essential to the advancement of DOE programs or objectives and (i) in the case of a person invited to confer at the post of duty of the conferring DOE employee, a designated official has approved and stated the reasons for the invitation in writing, or (ii) in the case of a person invited to confer at a place other than the post duty of the conferring DOE employee, a principal departmental official has approved and stated the reasons for the invitation in writing;

(2) Pursuant to an invitation for an interview to a prospective employee of the Department who is an applicant for (i) a position in the Department classified at GS-16 or above of the General Schedule or the rate of basic pay for which is fixed, other than under the General Schedule, at a rate equal to or greater than the minimum rate of basic pay fixed for GS-16, (ii) a position for which a determination has been made that there is a manpower shortage pursuant to 5 U.S.C. 5723, or (iii) a DOE position for which the Department has the exclusive duties of recruitment and selection;

(3) In accordance with 28 U.S.C. 1821 or other applicable law, to a person who is subpoenaed by the Department to appear and testify or to appear and to produce documents at a designated place;

(4) To a person who serves as a travel attendant for a handicapped individual who is authorized to travel at DOE expense and who cannot travel alone because of the handicap; or

(5) Pursuant to a written determination of a principal departmental officer that it is in the interest of the Government to provide such payment, where the Counselor has determined in writing that the payment is authorized under 5 U.S.C. ch. 57 or other statutory authority.

(b) The authority of a designated official or a principal departmental officer, as the case may be, to provide approval of an invitation to travel under paragraph (a)(1) and of a principal departmental officer to determine that payment of travel expenses is in the interest of the Government under paragraph (a)(5) of this section may not be delegated.

(c) Within 30 days of providing written approval of an invitation under paragraph (a)(1)(i) of this section, a designated official who is an Administrator of a power administration or the head of a Field Organization shall transmit a copy of the written approval to the principal departmental officer to whom the official or the official's organization reports.

(d) Payment of travel expenses may not be made pursuant to an invitation to travel under paragraphs (a)(1) or (a)(5) unless the written approval and statement of reasons required by paragraph (a)(1), or the written determinations required by paragraph (a)(5) of this section, are made before the travel to be authorized by the invitation takes place.

(e) Nothing in this section shall be interpreted to prohibit payment for travel expenses that are reimbursable or allowable by the Department under the terms of a DOE contract or assistance award.

§ 1060.201Relatives, contractors, and assistance award recipients.

Notwithstanding any other provision in this part, a DOE employee may not authorize or approve, require another person to authorize or approve, or advocate the authorization or approval of, payment from DOE funds of travel expenses of a person who is not a Government employee and who is (a) the DOE employee's relative (except in the case of payment under § 1060.101(a)(4)), or (b) in the case of payment under § 1060.101(a)(1), a DOE contractor or a DOE assistance award recipient or the employee of a DOE contractor or a DOE assistance award recipient unless the travel expenses are incurred with respect to matters outside the scope of the contract or assistance award, as the case may be. (See also § 1060.101(e).)

§ 1060.301Government employees.

Nothing in this part shall be interpreted as being applicable to authorization or approval of payment of travel expenses of Government employees, including DOE employees.

§ 1060.401Applicability of internal DOE rules.

Payment of travel expenses under § 1060.101(a) (1) through (5) shall be subject to other Department rules relating to authorization of travel.

§ 1060.501Definitions.

For purposes of this part—

(a) Counselor means the General Counsel of the Department or the General Counsel of the Federal Energy Regulatory Commission or their delegates, as appropriate.

(b) Designated official means (1) a principal departmental officer, (2) an individual who is appointed to a position in the Department by the President of the United States with the advice and consent of the Senate, (3) the Administrator of a power administration, or (4) the head of a Field Organization.

(c) DOE or Department means the Department of Energy established by the Department of Energy Organization Act, section 201, Pub. L. 95-91 (42 U.S.C. 7131).

(d) Employee means—

(1) An employee as defined by 5 U.S.C. 2105;

(2) A special Government employee as defined in 18 U.S.C. 202(a);

(3) A member of a Uniformed Service.

(e) Handicapped individual means a person who has a physical or mental disability or health impairment, and includes an individual who is temporarily incapacitated because of illness or injury.

(f) Principal departmental officer means the Secretary, Deputy Secretary, or Under Secretary, or, in the case of the Federal Energy Regulatory Commission, the Chairman or Executive Director of the Commission.

(g) Relative means, with respect to a DOE employee, an individual who is related to the employee, by blood, marriage, or operation of law, as father, mother, son, daughter, brother, sister, uncle, aunt, great aunt, great uncle, first cousin, nephew, niece, husband, wife, grandchild, grandparent, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister, and shall also include the grandparent of an employee's spouse, an employee's fiance or fiancee, or any person residing in the employee's household.