Federal Management Regulation; Physical Security, 12489-12493 [2020-04268]
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Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules
12489
TABLE 1 TO PARAGRAPH (b)—LCPFAC CHEMICAL SUBSTANCES SUBJECT TO REPORTING AFTER DECEMBER 31, 2015—
Continued
Chemical name
CAS registry
No.
(CASRN)
Modified fluoroalkyl urethane (generic) ......................................................................
Perfluorinated polyamine (generic) ............................................................................
CBI .....................
CBI .....................
(3) The chemical substances
identified as perfluorooctanoic acid
(PFOA) and its salts, including those
EPA
accession
No.
89419
274147
TSCA chemical inventory name
Modified fluoroalkyl urethane (PROVISIONAL).
Perfluorinated polyamine (PROVISIONAL)
listed in Table 2 of this paragraph, are
subject to reporting under this section
for the significant new uses described in
paragraph (b)(4)(iii) of this section.
TABLE 2 TO PARAGRAPH (b)—PFOA AND EXAMPLES OF ITS SALTS
CAS registry
No.
(CASRN)
Chemical name
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Pentadecafluorooctanoyl fluoride .....
Perfluorooctanoic acid .....................
Silver perfluorooctanoate .................
Sodium perfluorooctanoate ..............
Potassium perfluorooctanoate .........
Ammonium perfluorooctanoate ........
335–66–0
335–67–1
335–93–3
335–95–5
2395–00–8
3825–26–1
(4) Significant new uses:
(i) The significant new use for
chemical substances identified in
paragraph (b)(1) of this section are:
Manufacture (including import) or
processing for use as part of carpets or
to treat carpets (e.g., for use in the carpet
aftercare market).
(ii) The significant new use for
chemical substances identified in
paragraph (b)(2) of this section are:
Manufacture (including import) or
processing for any use after December
31, 2015.
(iii) The significant new use for
chemical substances identified in
paragraph (b)(3) of this section are:
Manufacture (including import) or
processing for any use. Import of
fluoropolymer dispersions and
emulsions, and fluoropolymers as part
of articles, containing chemical
substances identified in paragraph (b)(3)
of this section shall not be considered
as a significant new use subject to
reporting.
(iv) The significant new use for
chemical substances identified in
paragraph (b)(1) of this section, except
for those chemicals identified in Table
1 of paragraph (b)(2) of this section are:
Manufacture (including import) or
processing for any use other than that
use already covered by paragraph
(b)(4)(i) of this section.
(c) Specific requirements. (1)
Revocation of certain notification
exemptions. With respect to imports of
carpets, the provisions of § 721.45(f) do
not apply to this section. With respect
to imports of articles, the provisions of
§ 721.45(f) also do not apply to a
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TSCA chemical inventory name
Octanoyl fluoride, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-.
Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro- (PFOA).
Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, silver (+) salt (1:1).
Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, sodium salt (1:1).
Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, potassium salt (1:1).
Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, ammonium salt (1:1)
(APFO).
chemical substance identified in
paragraphs (b)(2) or (b)(3) of this section
when they are part of a surface coating
of an article. A person who imports a
chemical substance identified in
paragraph (b)(1) of this section as part
of a carpet or who imports a chemical
substance identified in paragraphs (b)(2)
or (b)(3) of this section as part of a
surface coating on an article is not
exempt from submitting a significant
new use notice. The other provision of
§ 721.45(f), respecting processing a
chemical substance as part of an article,
remains applicable.
(2) [Reserved]
[FR Doc. 2020–03865 Filed 3–2–20; 8:45 am]
BILLING CODE 6560–50–P
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–81
[FMR Case 2018–102–2; Docket No. 2020–
0009; Sequence No. 1]
RIN 3090–AJ94
Federal Management Regulation;
Physical Security
Office of Government-wide
Policy (OGP), General Services
Administration (GSA).
ACTION: Proposed rule.
AGENCY:
The General Services
Administration is proposing to revise
the Federal Management Regulation
(FMR) to clarify the responsibilities of
agencies for maintaining physical
SUMMARY:
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security standards in federally owned
and leased facilities in light of current
law, executive orders and updated
standards. The revision will also update
nomenclature and reorganize the
subparts for better readability and
clarity.
Interested parties should submit
written comments to the Regulatory
Secretariat Division at one of the
addresses shown below on or before
May 4, 2020 to be considered in the
formation of the final rule.
ADDRESSES: Submit comments in
response to FMR Case 2018–102–2 by
any of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘FMR Case 2018–102–2’’ under
the heading select ‘‘Enter Keyword or
ID’’ and select ‘‘Search’’. Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘FMR Case 2018–102–2’’ and
follow the instructions provided at the
‘‘Comment Now’’ screen. Please include
your name, company name (if any), and
‘‘FMR Case 2018–102–2’’ on your
attached document.
• Mail: General Services
Administration, Regulatory Secretariat
Division (MVCB), ATTN: Ms. Lois
Mandell, Director, 1800 F Street NW,
2nd Floor, Washington, DC 20405.
Instructions: Please submit comments
only and cite ‘‘FMR Case 2018–102–2’’
in all correspondence related to this
case. All comments received will be
posted without change to https://
www.regulations.gov including any
personal and business confidential
DATES:
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Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules
information provided. To confirm
receipt of your comment(s), please
check https://www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Chris Coneeney, Director, Real Property
Policy Division, Office of Governmentwide Policy at 202–501–2956 or
chris.coneeny@gsa.gov. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat Division (MVCB), 1800 F
Street NW, Washington, DC 20405, 202–
501–4755. Please cite ‘‘FMR Case 2018–
102–2’’.
SUPPLEMENTARY INFORMATION:
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A. Background and Authority for This
Rulemaking
6 U.S.C. 232 vests in the GSA
Administrator the authority to operate,
maintain and protect buildings and
grounds owned or occupied by the
Federal Government and under the
jurisdiction, custody or control of the
Administrator. This rule proposes to
revise in its entirety 41 CFR part 102–
81, Physical Security, last published in
the Federal Register on November 8,
2005 (70 FR 67856), in light of changes
to law, executive orders and updated
standards. This regulation is applicable
to all GSA-controlled facilities,
including those owned and leased
under GSA authority and those
delegated under GSA authority.
Six months after the bombing of the
Alfred P. Murrah Federal Building,
President William Clinton issued
Executive Order (E.O.) 12977:
Interagency Security Committee,
creating the Interagency Security
Committee (ISC) within the Executive
Branch (60 FR 54411, Oct. 19, 1995).
The ISC is a membership organization
that includes 63 Federal departments
and agencies. The ISC’s mandate is to
enhance the quality and effectiveness of
physical security in, and the protection
of, buildings and nonmilitary Federal
facilities, and to provide a permanent
body to address continuing governmentwide security issues for these facilities.
Pursuant to E.O. 12977, the ISC also
prepared guidance for the Facility
Security Committees (FSCs) that are
responsible for addressing and
implementing facility-specific security
issues at each multi-occupant Federal
facility.
In response to the terrorist attacks on
September 11, 2001, Congress enacted
the Homeland Security Act of 2002
(available at https://www.dhs.gov/sites/
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default/files/publications/hr_5005_
enr.pdf), Public Law 107–296, 116 Stat
2135 (the ‘‘Act’’), to better protect the
assets and critical infrastructure of the
United States. The Act established the
U.S. Department of Homeland Security
(DHS), and among other things,
transferred the Federal Protective
Service (FPS) from GSA to DHS. FPS
was established as a component of GSA
in January 1971, and historically has
been the security organization that
conducts investigations to protect
property under the control of GSA,
enforces Federal laws to protect persons
and property, and makes arrests without
a warrant for any offense committed
upon Federal property if a policeman
had reason to believe the offense was a
felony and the person to be arrested was
guilty of the felony. Section 1706 of the
Act, codified at 40 U.S.C. 1315,
transferred FPS’s specific security and
law enforcement functions and
authorities to the Secretary of Homeland
Security.
Section 422 of the Act also references
6 U.S.C. 232, which vests in the
Administrator of General Services the
authority to operate, maintain and
protect buildings and grounds owned or
occupied by the Federal Government
and under the jurisdiction, custody or
control of the Administrator.
Following enactment of the Act,
President George Bush issued E.O.
13286: Amendment of Executive Orders,
and Other Actions, in Connection With
the Transfer of Certain Functions to the
Secretary of Homeland Security, which
transferred responsibility for chairing
the ISC from the Administrator of
General Services to the Secretary of
Homeland Security (68 FR 10619,
March 5, 2003).
In August 2004, President George
Bush issued Homeland Security
Presidential Directive 12 (HSPD–12)
(available at https://www.dhs.gov/
homeland-security-presidentialdirective-12), which requires, to the
maximum extent practicable, the use of
identification by Federal employees and
contractors that meets the standard
promulgated by the Secretary of
Commerce (e.g., Federal Information
Processing Standard Publication 201) to
gain physical access to Federally
controlled facilities.
HSPD–12 was followed by the REAL
ID Act of 2005, Public Law 109–13, 119
Stat. 302 (the ‘‘REAL ID Act’’), which
establishes minimum security standards
for license issuance and production and
prohibits Federal agencies from
accepting for certain purposes driver’s
licenses and identification cards from
states not meeting the REAL ID Act’s
minimum standards. The purposes
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covered by the REAL ID Act are
accessing Federal facilities, entering
nuclear power plants and boarding
federally regulated commercial aircraft.
In June 2006, GSA and DHS signed a
Memorandum of Agreement (MOA)
outlining the responsibilities of each
agency with regard to facility security.
According to the MOA, FPS is required
to conduct facility security assessments
of GSA buildings in accordance with
ISC standards. The resulting facility
security assessment report should
include recommended countermeasures
for identified vulnerabilities. The MOA
also established that both agencies are
responsible for the implementation of
approved countermeasures, with FPS
responsible for security equipment and
GSA in charge of facility security
fixtures. This 2006 MOA was revised
and superseded by an MOA executed by
DHS and GSA as of September 27, 2018.
In February 2013, Presidential Policy
Directive 21: Critical Infrastructure
Security and Resilience required the
Secretary of Homeland Security
(available at https://
obamawhitehouse.archives.gov/thepress-office/2013/02/12/presidentialpolicy-directive-critical-infrastructuresecurity-and-resil) to conduct
comprehensive assessments of the
vulnerabilities of the nation’s critical
infrastructure. This directive also
designated both GSA and DHS as the
responsible agencies for providing
institutional knowledge and specialized
expertise in support of security
programs and activities for government
buildings.
In August 2013, the ISC issued The
Risk Management Process for Federal
Facilities (the ‘‘RMP Standard’’), a
standard to define the criteria and
processes to determine the facility
security level and provide a single
source of physical security
countermeasures for federal buildings.
The ISC updated the standard in
November 2016. See, The Risk
Management Process for Federal
Facilities: An Interagency Security
Committee Standard (2nd Ed.,
November 2016) https://www.cisa.gov/
sites/default/files/publications/isc-riskmanagement-process-2016-508.pdf. The
following terms have the same
definition as ascribed to them in the
RMP Standard:
Baseline Level of Protection,
Facility Security Assessment,
Facility Security Committee,
Facility Security Level,
Risk,
Risk Mitigation,
Level of Protection,
Level of Risk, and
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Vulnerability.
Some notable provisions of the ISC
standard are described below:
(a) According to the ISC standard,
buildings with two or more federal
tenants should have a FSC. See, Facility
Security Committees: An Interagency
Security Committee Standard (2nd Ed.
Jan. 1, 2012) (available at https://
www.dhs.gov/xlibrary/assets/isc-facilitysecurity-committees-standard-january2012-2nd-edition.pdf). FSCs are
responsible for addressing buildingspecific security issues and approving
the implementation of recommended
countermeasures and practices. FSCs
include representatives of all federal
occupant agencies in the building, as
well as FPS and GSA. However, FPS
and GSA do not have voting rights,
unless they are occupants in the
building. If the FSC approves a
countermeasure, each federal occupant
agency in the building is responsible for
funding its pro rata share of the cost.
According to the ISC standard, in a
building with only one federal occupant
agency, that agency is the decisionmaker for the building’s security.
Therefore, these types of buildings do
not require FSCs.
(b) The ISC standard requires FPS to
conduct facility security assessments to
identify vulnerabilities and recommend
countermeasures. FSCs use a building’s
facility security assessment report to—
1. Evaluate security risk;
2. Implement countermeasures to
mitigate risk; and
3. Allocate security resources
effectively.
For example, a facility security
assessment report might include a
recommendation to install cameras and
relocate a loading dock. Upon
deliberation, the FSC might decide only
to install the cameras. FPS, in
consultation with the FSC, helps
determine a facility’s security level,
which determines the baseline level of
protection. Facility security levels range
from Level 1 (lowest risk) to Level 5
(highest risk), and dictate the frequency
of the facility security assessments for
that building. The facility security level
is based on five factors: Mission
criticality, symbolism, building
population, building size, and threat to
occupant agencies. In addition,
intangibles (such as a short duration
occupancy) can be used to adjust the
security level.
Occupant agency or FSCs use the
facility security assessment reports they
receive from FPS to inform deliberations
regarding recommended risk mitigation
countermeasures and other security
related actions. GSA will facilitate the
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B. Section-by-Section Analysis and
Regulatory Changes Proposed by GSA
in This Rulemaking
determines that compliance would
conflict with the authorities of the
Secretary of Energy over Restricted Data
and Special Nuclear Material under,
among others, sections 141, 145, 146,
147, and 161 of the Atomic Energy Act
of 1954, as amended, the Department of
Energy Organization Act, or any other
statute.
Subpart A—General Provisions
Subpart B—Physical Security
§ 102–81.5
GSA proposes changes in this section
to describe more accurately the scope
and coverage of the regulation. The
regulation uses the phrase ‘‘under the
jurisdiction, custody or control of GSA,’’
which appears in 6 U.S.C. 232, to
describe the buildings and grounds
owned or occupied by the Federal
Government that are covered by this
part. This phrase replaces and clarifies
the phrase ‘‘operating under, or subject
to, the authorities of the Administrator
of General Services,’’ which was used in
the previous version. The definitions of
‘‘Federal facility’’ and ‘‘Federal
grounds’’ are included to clarify any
confusion in the scope.
§ 102–81.25
GSA proposes to eliminate in its
entirety the previous section 102–81.25
because the RMP Standard supersedes
all previous guidance contained in the
Department of Justice’s report
‘‘Vulnerability Assessment of Federal
Facilities’’ (June 28, 1995). GSA
proposes to add the replacement
provision to clarify that Federal
agencies are responsible for meeting
physical security standards in
accordance with ISC standards, policies
and recommendations. Occupant agency
or FSCs use the facility security
assessment reports they receive from
FPS to inform deliberations regarding
recommended countermeasures and
other security related actions. GSA will
facilitate the implementation of the
countermeasures or other actions after
occupant agency or FSC approval, and
commitment of each occupant agency to
pay its pro rata share of the cost.
implementation of the countermeasures
or other actions after occupant agency or
FSC approval, and commitment of each
occupant agency to pay its pro rata
share of the cost.
§ 102–81.10
GSA proposes a substantive change to
this section to clarify that, under E.O.
12977, the ISC is responsible for setting
policies and recommendations that
govern Federal agency physical security.
The ISC issues standards, such as the
ISC Risk Management Process Standard
(2nd Ed., November 2016) (the ‘‘RMP
Standard’’). ISC policies do not
supersede other laws, regulations and
executive orders that are intended to
protect unique assets.
§ 102–81.15
GSA proposes adding this section to
clarify the governing authorities that
pertain to this regulation.
§ 102–81.20
GSA proposes to eliminate in its
entirety the previous section 102–81.20
because the RMP Standard supersedes
all previous guidance contained in the
Department of Justice’s report
‘‘Vulnerability Assessment of Federal
Facilities’’ (June 28, 1995). There is no
difference between existing and new
facilities in the ISC policies and
standards. GSA proposes to add the
replacement provision to clarify that
Federal agencies are required to follow
this regulation. Federal agencies must
cooperate and comply with ISC policies
and recommendations, except where the
Director of National Intelligence
determines that compliance would
jeopardize intelligence sources and
methods or the Secretary of Energy
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§ 102–81.30
GSA proposes to eliminate in its
entirety the previous section 102–81.30
because the requirements are addressed
in section 231 of Public Law 101–647.
GSA proposes to add the replacement
provision to be consistent with the RMP
Standard. This section now describes
physical security considerations
associated with existing facilities.
§ 102–81.31
GSA proposes adding this section to
be consistent with the RMP Standard.
This section describes physical security
considerations associated with leased
facilities or new construction.
C. Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits of
reducing costs, harmonizing rules and
promoting flexibility. This rule is a
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significant regulatory action, and is
subject to review under section 6(b) of
E.O. 12866. This rule is not a major rule
under 5 U.S.C. 804.
D. Executive Order 13771
This proposed rule is not expected to
be subject to the requirements of E.O.
13771 (82 FR 9339, February 3, 2017)
because this proposed rule is expected
to be related to agency organization,
management, or personnel.
E. Regulatory Flexibility Act
The Paperwork Reduction Act does
not apply because the changes to the
FMR do not impose recordkeeping or
information collection requirements on,
or the collection of information from,
offerors, contractors or members of the
public that require the approval of the
Office of Management and Budget under
44 U.S.C. 3501 et seq.
G. Small Business Regulatory
Enforcement Fairness Act
This proposed rule is exempt from
Congressional review under 5 U.S.C.
801, since it relates solely to agency
management or personnel.
Federal buildings and facilities,
Government property management and
physical security measures.
Jessica Salmoiraghi,
Associate Administrator, Office of
Government-wide Policy.
For the reasons set forth in the
preamble, GSA proposes to revise in its
entirety 41 CFR part 102–81 as follows:
PART 102–81—Physical Security
1. The authority citation for part 102–
81 is revised to read as follows:
■
Authority: 40 U.S.C. 121(c) and 581; 6
U.S.C. 232; Homeland Security Presidential
Directive 12; and the REAL ID Act of 2005,
Pub. L. 109–13, 119 Stat. 302.
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Part 102–81—Physical Security
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Each occupant agency in a Federal
facility or on Federal grounds under the
jurisdiction, custody or control of GSA,
including those facilities and grounds
that have been delegated by the
Administrator of General Services, must
cooperate and comply with these
provisions, except where the Director of
National Intelligence determines that
compliance would jeopardize
intelligence sources and methods or the
Secretary of Energy determines that
compliance would conflict with the
authorities of the Secretary of Energy
over Restricted Data and Special
Nuclear Material under, among others,
sections 141, 145, 146, 147, and 161 of
the Atomic Energy Act of 1954, as
amended, the Department of Energy
Organization Act, or any other statute.
What does this part cover?
This part covers physical security in
and at federally owned and leased
facilities and grounds under the
jurisdiction, custody or control of GSA,
including those facilities and grounds
that have been delegated by the
Administrator of General Services.
Federal facility means all or any part of
any building, physical structure or
associated support infrastructure (e.g.,
parking facilities and utilities) that is
under the jurisdiction, custody or
control of GSA. Federal grounds mean
all or any part of any area outside a
Federal facility that is under the
jurisdiction, custody or control of GSA.
§ 102–81.10 What basic physical security
policy governs Federal agencies?
List of Subjects in 41 CFR Part 102–81
Subpart A—General Provisions
Sec.
§ 102–81.5 What does this part cover?
§ 102–81.10 What basic physical security
policy governs Federal agencies?
§ 102–81.15 What are the governing
authorities for this part?
Subpart B—Physical Security
§ 102–81.25 Who is responsible for
implementing, maintaining and
upgrading physical security standards in
each Federally owned and leased
facility?
§ 102–81.30 Are there any special
considerations for existing facilities?
§ 102–81.31 Are there any special
considerations for leased facilities or
new construction?
§ 102–81.5
F. Paperwork Reduction Act
2. Amend part 102–81 to read as
follows:
§ 102–81.20 Who must comply with these
provisions?
Subpart A—General Provisions
GSA certifies this rule will not have
a significant economic impact on a
substantial number of small entities
because it applies only to Federal
agencies and employees.
■
§ 102–81.20 Who must comply with these
provisions?
The Interagency Security Committee
(ISC) is responsible for developing and
evaluating physical security standards
for Federal facilities. In accordance with
Executive Order 12977, the ISC sets
policies and recommendations that
govern Federal agency physical security.
This includes the ISC Risk Management
Process Standard (the ‘‘RMP Standard’’)
that Federal agencies use in the
protection of the real property they
occupy, including the protection of
persons on the property. The goal of the
RMP Standard is a level of protection
commensurate with the level of risk. ISC
policies do not supersede other laws,
regulations, and executive orders that
are intended to protect unique assets.
§ 102–81.15 What are the governing
authorities for this part?
The governing authorities are as
follows:
(a) 40 U.S.C. 121(c) and 581.
(b) Executive Order 12977.
(c) Executive Order 13286, sec. 23.
(d) 6 U.S.C. 232.
(e) Homeland Security Presidential
Directive 12.
(f) REAL ID Act of 2005 (Pub. L. 109–
13).
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Subpart B—Physical Security
§ 102–81.25 Who is responsible for
implementing, maintaining and upgrading
physical security standards in each
Federally owned and leased facility?
Each occupant agency in a Federal
facility or on Federal grounds under the
jurisdiction, custody or control of GSA,
including those facilities and grounds
that have been delegated by the
Administrator of General Services, is
responsible for meeting physical
security standards in accordance with
ISC standards, policies and
recommendations. Occupant agency or
FSCs use the facility security
assessment reports they receive from
FPS to inform deliberations regarding
recommended countermeasures and
other security related actions. GSA will
facilitate the implementation of the
countermeasures or other actions after
occupant agency or FSC approval, and
commitment of each occupant agency to
pay its pro rata share of the cost.
§ 102–81.30 Are there any special
considerations for existing facilities?
As provided in subsection 5.2.2 of the
RMP Standard, for existing Federal
facilities, both leased and governmentowned, the RMP Standard is applied as
part of the periodic risk assessment
process. The security organization will
conduct a periodic risk assessment and
recommend countermeasures and
design features to be implemented at the
facility. The FSC will determine
whether the recommended
countermeasures will be implemented
or if risk will be accepted. The design
and implementation of approved
countermeasures at existing facilities
must comply with applicable laws,
regulations and executive orders. For
approved countermeasures that cannot
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be implemented immediately, a plan to
phase in countermeasures and achieve
compliance must be instituted and
documented in accordance with the
RMP Standard. In some cases, the
implementation of countermeasures
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must be delayed until renovations or
modernization programs occur.
§ 102–81.31 Are there any special
considerations for leased facilities or new
construction?
Yes. GSA will coordinate with the
occupant agency and the security
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12493
organization responsible for the Federal
facility when determining the
applicable physical security clauses to
use in the procurement package.
[FR Doc. 2020–04268 Filed 3–2–20; 8:45 am]
BILLING CODE 6820–14–P
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Agencies
[Federal Register Volume 85, Number 42 (Tuesday, March 3, 2020)]
[Proposed Rules]
[Pages 12489-12493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04268]
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GENERAL SERVICES ADMINISTRATION
41 CFR Part 102-81
[FMR Case 2018-102-2; Docket No. 2020-0009; Sequence No. 1]
RIN 3090-AJ94
Federal Management Regulation; Physical Security
AGENCY: Office of Government-wide Policy (OGP), General Services
Administration (GSA).
ACTION: Proposed rule.
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SUMMARY: The General Services Administration is proposing to revise the
Federal Management Regulation (FMR) to clarify the responsibilities of
agencies for maintaining physical security standards in federally owned
and leased facilities in light of current law, executive orders and
updated standards. The revision will also update nomenclature and
reorganize the subparts for better readability and clarity.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at one of the addresses shown below on
or before May 4, 2020 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FMR Case 2018-102-2 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by entering ``FMR Case
2018-102-2'' under the heading select ``Enter Keyword or ID'' and
select ``Search''. Select the link ``Submit a Comment'' that
corresponds with ``FMR Case 2018-102-2'' and follow the instructions
provided at the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FMR Case 2018-102-2'' on your attached
document.
Mail: General Services Administration, Regulatory
Secretariat Division (MVCB), ATTN: Ms. Lois Mandell, Director, 1800 F
Street NW, 2nd Floor, Washington, DC 20405.
Instructions: Please submit comments only and cite ``FMR Case 2018-
102-2'' in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov
including any personal and business confidential
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information provided. To confirm receipt of your comment(s), please
check https://www.regulations.gov, approximately two to three days after
submission to verify posting (except allow 30 days for posting of
comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Chris Coneeney, Director, Real Property Policy Division, Office of
Government-wide Policy at 202-501-2956 or [email protected]. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat Division (MVCB), 1800 F Street NW, Washington,
DC 20405, 202-501-4755. Please cite ``FMR Case 2018-102-2''.
SUPPLEMENTARY INFORMATION:
A. Background and Authority for This Rulemaking
6 U.S.C. 232 vests in the GSA Administrator the authority to
operate, maintain and protect buildings and grounds owned or occupied
by the Federal Government and under the jurisdiction, custody or
control of the Administrator. This rule proposes to revise in its
entirety 41 CFR part 102-81, Physical Security, last published in the
Federal Register on November 8, 2005 (70 FR 67856), in light of changes
to law, executive orders and updated standards. This regulation is
applicable to all GSA-controlled facilities, including those owned and
leased under GSA authority and those delegated under GSA authority.
Six months after the bombing of the Alfred P. Murrah Federal
Building, President William Clinton issued Executive Order (E.O.)
12977: Interagency Security Committee, creating the Interagency
Security Committee (ISC) within the Executive Branch (60 FR 54411, Oct.
19, 1995). The ISC is a membership organization that includes 63
Federal departments and agencies. The ISC's mandate is to enhance the
quality and effectiveness of physical security in, and the protection
of, buildings and nonmilitary Federal facilities, and to provide a
permanent body to address continuing government-wide security issues
for these facilities. Pursuant to E.O. 12977, the ISC also prepared
guidance for the Facility Security Committees (FSCs) that are
responsible for addressing and implementing facility-specific security
issues at each multi-occupant Federal facility.
In response to the terrorist attacks on September 11, 2001,
Congress enacted the Homeland Security Act of 2002 (available at
https://www.dhs.gov/sites/default/files/publications/hr_5005_enr.pdf),
Public Law 107-296, 116 Stat 2135 (the ``Act''), to better protect the
assets and critical infrastructure of the United States. The Act
established the U.S. Department of Homeland Security (DHS), and among
other things, transferred the Federal Protective Service (FPS) from GSA
to DHS. FPS was established as a component of GSA in January 1971, and
historically has been the security organization that conducts
investigations to protect property under the control of GSA, enforces
Federal laws to protect persons and property, and makes arrests without
a warrant for any offense committed upon Federal property if a
policeman had reason to believe the offense was a felony and the person
to be arrested was guilty of the felony. Section 1706 of the Act,
codified at 40 U.S.C. 1315, transferred FPS's specific security and law
enforcement functions and authorities to the Secretary of Homeland
Security.
Section 422 of the Act also references 6 U.S.C. 232, which vests in
the Administrator of General Services the authority to operate,
maintain and protect buildings and grounds owned or occupied by the
Federal Government and under the jurisdiction, custody or control of
the Administrator.
Following enactment of the Act, President George Bush issued E.O.
13286: Amendment of Executive Orders, and Other Actions, in Connection
With the Transfer of Certain Functions to the Secretary of Homeland
Security, which transferred responsibility for chairing the ISC from
the Administrator of General Services to the Secretary of Homeland
Security (68 FR 10619, March 5, 2003).
In August 2004, President George Bush issued Homeland Security
Presidential Directive 12 (HSPD-12) (available at https://www.dhs.gov/homeland-security-presidential-directive-12), which requires, to the
maximum extent practicable, the use of identification by Federal
employees and contractors that meets the standard promulgated by the
Secretary of Commerce (e.g., Federal Information Processing Standard
Publication 201) to gain physical access to Federally controlled
facilities.
HSPD-12 was followed by the REAL ID Act of 2005, Public Law 109-13,
119 Stat. 302 (the ``REAL ID Act''), which establishes minimum security
standards for license issuance and production and prohibits Federal
agencies from accepting for certain purposes driver's licenses and
identification cards from states not meeting the REAL ID Act's minimum
standards. The purposes covered by the REAL ID Act are accessing
Federal facilities, entering nuclear power plants and boarding
federally regulated commercial aircraft.
In June 2006, GSA and DHS signed a Memorandum of Agreement (MOA)
outlining the responsibilities of each agency with regard to facility
security. According to the MOA, FPS is required to conduct facility
security assessments of GSA buildings in accordance with ISC standards.
The resulting facility security assessment report should include
recommended countermeasures for identified vulnerabilities. The MOA
also established that both agencies are responsible for the
implementation of approved countermeasures, with FPS responsible for
security equipment and GSA in charge of facility security fixtures.
This 2006 MOA was revised and superseded by an MOA executed by DHS and
GSA as of September 27, 2018.
In February 2013, Presidential Policy Directive 21: Critical
Infrastructure Security and Resilience required the Secretary of
Homeland Security (available at https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil) to conduct comprehensive assessments
of the vulnerabilities of the nation's critical infrastructure. This
directive also designated both GSA and DHS as the responsible agencies
for providing institutional knowledge and specialized expertise in
support of security programs and activities for government buildings.
In August 2013, the ISC issued The Risk Management Process for
Federal Facilities (the ``RMP Standard''), a standard to define the
criteria and processes to determine the facility security level and
provide a single source of physical security countermeasures for
federal buildings. The ISC updated the standard in November 2016. See,
The Risk Management Process for Federal Facilities: An Interagency
Security Committee Standard (2nd Ed., November 2016) https://www.cisa.gov/sites/default/files/publications/isc-risk-management-process-2016-508.pdf. The following terms have the same definition as
ascribed to them in the RMP Standard:
Baseline Level of Protection,
Facility Security Assessment,
Facility Security Committee,
Facility Security Level,
Risk,
Risk Mitigation,
Level of Protection,
Level of Risk, and
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Vulnerability.
Some notable provisions of the ISC standard are described below:
(a) According to the ISC standard, buildings with two or more
federal tenants should have a FSC. See, Facility Security Committees:
An Interagency Security Committee Standard (2nd Ed. Jan. 1, 2012)
(available at https://www.dhs.gov/xlibrary/assets/isc-facility-security-committees-standard-january-2012-2nd-edition.pdf). FSCs are
responsible for addressing building-specific security issues and
approving the implementation of recommended countermeasures and
practices. FSCs include representatives of all federal occupant
agencies in the building, as well as FPS and GSA. However, FPS and GSA
do not have voting rights, unless they are occupants in the building.
If the FSC approves a countermeasure, each federal occupant agency in
the building is responsible for funding its pro rata share of the cost.
According to the ISC standard, in a building with only one federal
occupant agency, that agency is the decision-maker for the building's
security. Therefore, these types of buildings do not require FSCs.
(b) The ISC standard requires FPS to conduct facility security
assessments to identify vulnerabilities and recommend countermeasures.
FSCs use a building's facility security assessment report to--
1. Evaluate security risk;
2. Implement countermeasures to mitigate risk; and
3. Allocate security resources effectively.
For example, a facility security assessment report might include a
recommendation to install cameras and relocate a loading dock. Upon
deliberation, the FSC might decide only to install the cameras. FPS, in
consultation with the FSC, helps determine a facility's security level,
which determines the baseline level of protection. Facility security
levels range from Level 1 (lowest risk) to Level 5 (highest risk), and
dictate the frequency of the facility security assessments for that
building. The facility security level is based on five factors: Mission
criticality, symbolism, building population, building size, and threat
to occupant agencies. In addition, intangibles (such as a short
duration occupancy) can be used to adjust the security level.
Occupant agency or FSCs use the facility security assessment
reports they receive from FPS to inform deliberations regarding
recommended risk mitigation countermeasures and other security related
actions. GSA will facilitate the implementation of the countermeasures
or other actions after occupant agency or FSC approval, and commitment
of each occupant agency to pay its pro rata share of the cost.
B. Section-by-Section Analysis and Regulatory Changes Proposed by GSA
in This Rulemaking
Subpart A--General Provisions
Sec. 102-81.5
GSA proposes changes in this section to describe more accurately
the scope and coverage of the regulation. The regulation uses the
phrase ``under the jurisdiction, custody or control of GSA,'' which
appears in 6 U.S.C. 232, to describe the buildings and grounds owned or
occupied by the Federal Government that are covered by this part. This
phrase replaces and clarifies the phrase ``operating under, or subject
to, the authorities of the Administrator of General Services,'' which
was used in the previous version. The definitions of ``Federal
facility'' and ``Federal grounds'' are included to clarify any
confusion in the scope.
Sec. 102-81.10
GSA proposes a substantive change to this section to clarify that,
under E.O. 12977, the ISC is responsible for setting policies and
recommendations that govern Federal agency physical security. The ISC
issues standards, such as the ISC Risk Management Process Standard (2nd
Ed., November 2016) (the ``RMP Standard''). ISC policies do not
supersede other laws, regulations and executive orders that are
intended to protect unique assets.
Sec. 102-81.15
GSA proposes adding this section to clarify the governing
authorities that pertain to this regulation.
Sec. 102-81.20
GSA proposes to eliminate in its entirety the previous section 102-
81.20 because the RMP Standard supersedes all previous guidance
contained in the Department of Justice's report ``Vulnerability
Assessment of Federal Facilities'' (June 28, 1995). There is no
difference between existing and new facilities in the ISC policies and
standards. GSA proposes to add the replacement provision to clarify
that Federal agencies are required to follow this regulation. Federal
agencies must cooperate and comply with ISC policies and
recommendations, except where the Director of National Intelligence
determines that compliance would jeopardize intelligence sources and
methods or the Secretary of Energy determines that compliance would
conflict with the authorities of the Secretary of Energy over
Restricted Data and Special Nuclear Material under, among others,
sections 141, 145, 146, 147, and 161 of the Atomic Energy Act of 1954,
as amended, the Department of Energy Organization Act, or any other
statute.
Subpart B--Physical Security
Sec. 102-81.25
GSA proposes to eliminate in its entirety the previous section 102-
81.25 because the RMP Standard supersedes all previous guidance
contained in the Department of Justice's report ``Vulnerability
Assessment of Federal Facilities'' (June 28, 1995). GSA proposes to add
the replacement provision to clarify that Federal agencies are
responsible for meeting physical security standards in accordance with
ISC standards, policies and recommendations. Occupant agency or FSCs
use the facility security assessment reports they receive from FPS to
inform deliberations regarding recommended countermeasures and other
security related actions. GSA will facilitate the implementation of the
countermeasures or other actions after occupant agency or FSC approval,
and commitment of each occupant agency to pay its pro rata share of the
cost.
Sec. 102-81.30
GSA proposes to eliminate in its entirety the previous section 102-
81.30 because the requirements are addressed in section 231 of Public
Law 101-647. GSA proposes to add the replacement provision to be
consistent with the RMP Standard. This section now describes physical
security considerations associated with existing facilities.
Sec. 102-81.31
GSA proposes adding this section to be consistent with the RMP
Standard. This section describes physical security considerations
associated with leased facilities or new construction.
C. Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits of reducing costs, harmonizing rules and promoting
flexibility. This rule is a
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significant regulatory action, and is subject to review under section
6(b) of E.O. 12866. This rule is not a major rule under 5 U.S.C. 804.
D. Executive Order 13771
This proposed rule is not expected to be subject to the
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this
proposed rule is expected to be related to agency organization,
management, or personnel.
E. Regulatory Flexibility Act
GSA certifies this rule will not have a significant economic impact
on a substantial number of small entities because it applies only to
Federal agencies and employees.
F. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FMR do not impose recordkeeping or information collection
requirements on, or the collection of information from, offerors,
contractors or members of the public that require the approval of the
Office of Management and Budget under 44 U.S.C. 3501 et seq.
G. Small Business Regulatory Enforcement Fairness Act
This proposed rule is exempt from Congressional review under 5
U.S.C. 801, since it relates solely to agency management or personnel.
List of Subjects in 41 CFR Part 102-81
Federal buildings and facilities, Government property management
and physical security measures.
Jessica Salmoiraghi,
Associate Administrator, Office of Government-wide Policy.
For the reasons set forth in the preamble, GSA proposes to revise
in its entirety 41 CFR part 102-81 as follows:
PART 102-81--Physical Security
0
1. The authority citation for part 102-81 is revised to read as
follows:
Authority: 40 U.S.C. 121(c) and 581; 6 U.S.C. 232; Homeland
Security Presidential Directive 12; and the REAL ID Act of 2005,
Pub. L. 109-13, 119 Stat. 302.
0
2. Amend part 102-81 to read as follows:
Part 102-81--Physical Security
Subpart A--General Provisions
Sec.
Sec. 102-81.5 What does this part cover?
Sec. 102-81.10 What basic physical security policy governs Federal
agencies?
Sec. 102-81.15 What are the governing authorities for this part?
Sec. 102-81.20 Who must comply with these provisions?
Subpart B--Physical Security
Sec. 102-81.25 Who is responsible for implementing, maintaining and
upgrading physical security standards in each Federally owned and
leased facility?
Sec. 102-81.30 Are there any special considerations for existing
facilities?
Sec. 102-81.31 Are there any special considerations for leased
facilities or new construction?
Subpart A--General Provisions
Sec. 102-81.5 What does this part cover?
This part covers physical security in and at federally owned and
leased facilities and grounds under the jurisdiction, custody or
control of GSA, including those facilities and grounds that have been
delegated by the Administrator of General Services. Federal facility
means all or any part of any building, physical structure or associated
support infrastructure (e.g., parking facilities and utilities) that is
under the jurisdiction, custody or control of GSA. Federal grounds mean
all or any part of any area outside a Federal facility that is under
the jurisdiction, custody or control of GSA.
Sec. 102-81.10 What basic physical security policy governs Federal
agencies?
The Interagency Security Committee (ISC) is responsible for
developing and evaluating physical security standards for Federal
facilities. In accordance with Executive Order 12977, the ISC sets
policies and recommendations that govern Federal agency physical
security. This includes the ISC Risk Management Process Standard (the
``RMP Standard'') that Federal agencies use in the protection of the
real property they occupy, including the protection of persons on the
property. The goal of the RMP Standard is a level of protection
commensurate with the level of risk. ISC policies do not supersede
other laws, regulations, and executive orders that are intended to
protect unique assets.
Sec. 102-81.15 What are the governing authorities for this part?
The governing authorities are as follows:
(a) 40 U.S.C. 121(c) and 581.
(b) Executive Order 12977.
(c) Executive Order 13286, sec. 23.
(d) 6 U.S.C. 232.
(e) Homeland Security Presidential Directive 12.
(f) REAL ID Act of 2005 (Pub. L. 109-13).
Sec. 102-81.20 Who must comply with these provisions?
Each occupant agency in a Federal facility or on Federal grounds
under the jurisdiction, custody or control of GSA, including those
facilities and grounds that have been delegated by the Administrator of
General Services, must cooperate and comply with these provisions,
except where the Director of National Intelligence determines that
compliance would jeopardize intelligence sources and methods or the
Secretary of Energy determines that compliance would conflict with the
authorities of the Secretary of Energy over Restricted Data and Special
Nuclear Material under, among others, sections 141, 145, 146, 147, and
161 of the Atomic Energy Act of 1954, as amended, the Department of
Energy Organization Act, or any other statute.
Subpart B--Physical Security
Sec. 102-81.25 Who is responsible for implementing, maintaining and
upgrading physical security standards in each Federally owned and
leased facility?
Each occupant agency in a Federal facility or on Federal grounds
under the jurisdiction, custody or control of GSA, including those
facilities and grounds that have been delegated by the Administrator of
General Services, is responsible for meeting physical security
standards in accordance with ISC standards, policies and
recommendations. Occupant agency or FSCs use the facility security
assessment reports they receive from FPS to inform deliberations
regarding recommended countermeasures and other security related
actions. GSA will facilitate the implementation of the countermeasures
or other actions after occupant agency or FSC approval, and commitment
of each occupant agency to pay its pro rata share of the cost.
Sec. 102-81.30 Are there any special considerations for existing
facilities?
As provided in subsection 5.2.2 of the RMP Standard, for existing
Federal facilities, both leased and government-owned, the RMP Standard
is applied as part of the periodic risk assessment process. The
security organization will conduct a periodic risk assessment and
recommend countermeasures and design features to be implemented at the
facility. The FSC will determine whether the recommended
countermeasures will be implemented or if risk will be accepted. The
design and implementation of approved countermeasures at existing
facilities must comply with applicable laws, regulations and executive
orders. For approved countermeasures that cannot
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be implemented immediately, a plan to phase in countermeasures and
achieve compliance must be instituted and documented in accordance with
the RMP Standard. In some cases, the implementation of countermeasures
must be delayed until renovations or modernization programs occur.
Sec. 102-81.31 Are there any special considerations for leased
facilities or new construction?
Yes. GSA will coordinate with the occupant agency and the security
organization responsible for the Federal facility when determining the
applicable physical security clauses to use in the procurement package.
[FR Doc. 2020-04268 Filed 3-2-20; 8:45 am]
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