[Federal Register Volume 61, Number 197 (Wednesday, October 9, 1996)]
[Notices]
[Pages 53018-53023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25881]
[[Page 53017]]
_______________________________________________________________________
Part IV
Department of Energy
_______________________________________________________________________
Personnel Assurance Program; Human Reliability Policies; Notice
Federal Register / Vol. 61, No. 197 / Wednesday, October 9, 1996 /
Notices
[[Page 53018]]
DEPARTMENT OF ENERGY
Office of Defense Programs; Personnel Assurance Program; Human
Reliability Policies
AGENCY: Department of Energy.
ACTION: Notice of interim Personnel Assurance Program procedures and
standards with opportunity to comment.
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SUMMARY: The Department of Energy (DOE) today publishes interim
Personnel Assurance Program (PAP) procedures and standards for DOE
personnel and contractor personnel who are assigned nuclear explosive
duties at DOE facilities. The PAP is a systematic program, previously
established by internal DOE Directive, to prevent accidental or
unauthorized detonation of nuclear explosives as a result of assignment
of nuclear explosives duties to employees who have or develop emotional
and mental instability or physical incapacity.
DATES: The interim certification procedures and standards are effective
October 9, 1996. Comments are due on or before November 8, 1996.
ADDRESSES: Comments (7 copies) may be submitted to Thomas Stepan,
USDOE, DP-21, 1000 Independence Avenue, S.W., Washington, D.C. 20585.
Copies of the written comments and any other docket material received
may be read and copied at the DOE Freedom of Information Reading Room,
U.S. Department of Energy, Room 1E-190, 1000 Independence Avenue, S.W.,
Washington, D.C., telephone (202) 586-6020 between the hours of 8:30
a.m. and 4:00 p.m. Monday through Friday except Federal holidays. The
docket file material will be filed under ``DP-RM-96-100.''
FOR FURTHER INFORMATION CONTACT: Thomas Stepan, USDOE, DP-21, 1000
Independence Avenue, S.W., Washington, D.C. 20585, (301) 903-3463. For
information concerning submission of written comments, contact Andi
Kasarsky, (202) 586-3012.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
Pursuant to the Atomic Energy Act of 1954 (Act), DOE owns defense
nuclear facilities in various locations in the United States which are
operated by management and operating contractors with DOE supervision.
These facilities are involved in researching, testing, producing,
disassembling, and transporting of nuclear explosives which, when mated
with Department of Defense-provided delivery systems, become nuclear
weapons systems.
Pursuant to section 161 of the Act, 42 U.S.C. 2201(b), (i)(3), and
(p), DOE and its predecessor agencies--the Atomic Energy Commission
(AEC) and the Energy Research and Development Administration (ERDA)--
have used some version of PAP to certify, actively monitor, and
periodically recertify personnel as suitable to perform nuclear
explosive duties in a safe and reliable manner. PAP provides for
disqualification of persons from performance of nuclear explosive
duties who fail to meet PAP requirements for emotional and mental
stability and physical capability. In DOE's internal administrative
directives, DOE Order 452.2, formerly DOE Order 5610.11, the term
``Nuclear Explosive Duty'' has been defined to include DOE or
contractor employees who have custody of or ``access'' to a nuclear
explosive. ``Access'' has been defined to mean: ``The proximity to a
nuclear explosive that affords a person the opportunity to tamper with
it or to cause a detonation.''
By active monitoring, PAP continuously applies to all PAP-certified
employees. The certification of such employees is subject to immediate
review in light of facts and circumstances about an employee or an
employee's behavior indicating a reliability risk that warrants
protective action to neutralize a nuclear explosive hazard by having an
individual immediately removed from nuclear explosive duties. Immediate
removal does not constitute a determination that the individual is
unsuitable for nuclear explosive duties, but indicates that the
individual's suitability is in question.
The PAP procedures and standards are legally binding on contractors
under the terms and conditions of their contractual agreements which
require them to comply with applicable DOE directives. They also apply
to contractor personnel and could be the basis for the contractor to
take some action affecting an employee's employment rights.
In 1992, the Independent Guard Association of Nevada, Local No. 1,
representing PAP-certifiable civilian security guards employed by
Wackenhut Security, Inc., at DOE's Nevada Test Site, brought suit
challenging DOE Order 5610.11 which established the Department's
nuclear explosive and weapons safety program, including the PAP. The
DOE Order was challenged for failure to promulgate it through public
notice and comment in compliance with the Administrative Procedure Act,
5 U.S.C. 553. In particular, the union challenged the requirement for
disqualification from PAP of employees who had used hallucinogens at
any time in the past. DOE defended its administrative directive under
the military functions, statement of policy, and the agency practice
and procedure exceptions from notice and comment rulemaking. Id.
The United States District Court for the District of Nevada
initially ruled that the military functions exception applied.
Subsequently, however, in Independent Guard Association of Nevada,
Local No.1 v. O'Leary, 57 F.3d 766 (C.A.9 1995), the United States
Court of Appeals for the Ninth Circuit reversed the district court's
judgment. The Court of Appeals held that although DOE performs military
functions with regard to nuclear explosives, the military functions
exception did not apply to the promulgation of DOE Order 5610.11
insofar as DOE sought to make the requirements section (containing the
PAP procedures and standards) binding on civilian support contractor
personnel performing duties that did not directly involve a military
function. On remand in Independent Guard Association of Nevada v.
O'Leary, No. CV-S-92-204-LDG-LRL (D. Nev. June 14, 1996), the district
court concluded that none of the other categorical exceptions from
notice and comment rulemaking on which DOE relied were applicable. The
district court's judgment enjoined DOE from enforcing the
``requirements section'' (section 2) of DOE Order 5610.11, Chapter I,
against contractor employees pending notice and comment rulemaking
under 5 U.S.C. 553.
Consistent with the rulings in the Independent Guard litigation,
DOE intends to issue a notice of proposed rulemaking under 5 U.S.C. 553
in the fall of 1996 to codify the PAP employee certification procedures
and standards, as well as other PAP-related policies, such as the
standards for the site office medical director. Subject to
consideration of the comments that are submitted in response to that
notice, DOE intends to issue a final rule establishing certification
procedures and standards applicable to the DOE and contractor employees
performing duties that involve nuclear explosive-related functions.
DOE's goal is to publish a final rule by the end of 1996 or early 1997.
DOE today is publishing interim PAP procedures and standards
pursuant to the good cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3)
and under the authority of section 161 of the Act, 42 U.S.C. 2201. DOE
finds that certification, recertification, active monitoring of
personnel assigned nuclear explosive duties, and provisions for the
removal of individuals from such duties pending suitability
determinations are necessary to mitigate
[[Page 53019]]
the risk of accidental or unauthorized detonation of a nuclear
explosive. Absence of PAP procedures and standards with regard to
employees assigned nuclear explosive duties during the period necessary
to complete notice and comment rulemaking would create an intolerable
occupational and public safety risk. Accordingly, DOE concludes that it
would be impracticable and contrary to the public interest to provide
prior notice or a 30-day delay of the effective date for these interim
procedures and standards. Although the interim PAP procedures and
standards published today will be effective immediately under the good
cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3), DOE invites and will
consider comments on the interim procedures and standards.
II. Description and Basis for Interim Procedures and Standards
The program elements of certification, periodic recertification,
and spot physical or psychological evaluation for cause are based on
DOE's experience, as well as the experience of the DOE's predecessor
agencies for over 30 years. Both the AEC and ERDA had internal
provisions for PAP, and DOE has had internal administrative directives
setting forth PAP policies.
Today's interim rule contains several modifications of the PAP as
set forth in DOE directives. These modifications include: (1) A
requirement for an individual to sign a form documenting ``refusal of
consent'' if the individual chooses not to participate in the PAP; (2)
flexibility in selecting and designating a psychological inventory
evaluation tool as a substitute for the specific designation of the
Minnesota Multi-Phasic Personality Inventory; (3) a requirement for a
more flexible ``semi-structured'' interview, which is a substitute for
the prior requirement for a ``structured'' interview; (4) the addition
of a psychological evaluation in every third year, as part of an
individual's annual recertification; (5) clarification of requirements
for random drug testing, and (6) the addition of evaluation
requirements for individuals who have used hallucinogenic drugs during
the preceding five years.
This part of the Supplementary Information discusses the meaning
of, and basis for, those provisions of the interim certification
procedures and standards that require explanation. It does not discuss
provisions that are largely self-explanatory.
Section 2 sets forth definitions. The definition of ``illegal
drug'' lists the drugs that are set forth in ``Mandatory Guidelines for
Federal Workplace Testing Programs'' issued by the Department of Health
and Human Services, 53 FR 11970 (April 11, 1988). The definitions of
``access,'' ``custody,'' ``nuclear explosive,'' ``nuclear explosive
area,'' and ``pit'' were developed in consultation with a variety of
interested stakeholders and subject matter experts.
Section 11 of the interim procedures and standards identifies both
the medical assessment requirements and the actions DOE may take based
on medical evaluations. Paragraph (a) of section 11 summarizes the
purpose of medical assessments and provides that such an assessment
consists of physical examination and psychological evaluation for
certification and periodic recertification. Paragraph (a) also
indicates that such an assessment may be required to evaluate an
employee for possible drug or alcohol abuse.
Paragraph (b) presents more details about the medical assessments
for the purpose of initial certification and periodic recertification.
It refers to the use of a ``generally accepted, self-reporting
psychological inventory tool'' together with a ``semi-structured
interview,'' both of which are required initially. Also, the semi-
structured interview is part of the annual medical evaluation for
recertification, while the psychological inventory tool is required
every third year as part of the medical evaluation for recertification.
The Minnesota Multi-Phasic Personality Inventory is an example of a
psychological inventory tool. A ``semi-structured interview'' involves
a series of questions by a clinical psychologist who has latitude to
vary the focus and content of questions as a function of what the
personality inventory or interviewee responses indicates should be
probed.
Paragraph (c) deals with the policies applicable to detecting and
acting with regard to positive indications of drug abuse. Paragraph
(c)(2) cross references 10 CFR part 707 which provides DOE's general
policy to promote drug free workplaces, and applies to DOE contractors
and subcontractors performing work at DOE owned or controlled sites.
However, paragraph (c) adds some requirements to those in part 707.
Paragraph (c) states a special policy for hallucinogenic drug use.
The hallucinogens in question are listed in a definition of the term
``hallucinogenic drug'' which appears in section 2. The policy provides
that hallucinogenic drug use more than five years earlier is not, in
itself, an adequate basis for denying certification or recertification.
The five-year rule reflects a period of time that should elapse, as a
protective practice, to minimize the likelihood of flashbacks.
``Flashback'' is the term used to describe a transient, spontaneous
recurrence of certain aspects of a person's hallucinogenic drug
experience. Flashbacks typically have all the qualities of the original
experience, and they are strongly felt. Because flashbacks are sudden,
often unpredictable, largely involuntary, dramatic alterations of
emotional state, perception, sensation, and behavior, an accident would
likely result if a flashback were to occur during the performance of a
hazardous task. Flashbacks may occur within a few days after drug use,
or they may occur a few weeks, months, or even years later.
An individual who used hallucinogenic drugs more than five years
earlier will be considered for nuclear explosive duties. However,
paragraph (c)(6) further provides that an individual who has used
hallucinogenic drugs must have an acceptable job record and observed
behavior; not be susceptible to flashbacks resulting from
hallucinogenic drug use; and must undergo a medical evaluation to
determine the individual's reliability.
Paragraph (d) deals with medical assessments for alcohol abuse. It
specifies the blood alcohol concentration that warrants enforcement
action. Based on the practices of the Federal Aviation Administration
with regard to airplane pilots, DOE has adopted the policy of
prohibiting alcohol consumption within an eight hour period preceding
nuclear explosive duties and does not permit an individual to perform
nuclear explosive duties for a minimum of 24 hours in the event a
confirmatory breath alcohol test result is at or above 0.02 percent.
(Reference 14 CFR 91.17(a)(1); 49 CFR 382.505(b)). Removal from nuclear
explosive duties due to results of a confirmatory breath alcohol test
could lead to revocation of PAP certification, but there is provision
for reinstatement following completion of an approved alcohol treatment
program.
Issued in Washington, DC, on October 2, 1996.
Victor H. Reis,
Assistant Secretary for Defense Programs.
Nuclear Explosive Safety Interim Certification Procedures and Standards
for the DOE Personnel Assurance Program
1. General
These interim procedures and standards apply to all Department of
Energy (DOE) personnel or contractor personnel who are assigned nuclear
explosive duties. The Personnel
[[Page 53020]]
Assurance Program (PAP) is a human reliability program designed to
ensure that individuals assigned to nuclear explosive duties do not
have or develop emotional, mental, or physical incapacities that could
result in the accidental or unauthorized detonation of a nuclear
explosive. In general:
(a) PAP certification is required for assignment to nuclear
explosive duties, and, in addition, the individual must meet all other
applicable job qualification requirements;
(b) Failure of an individual to be certified or recertified for
assignment to nuclear explosive duties shall not, in itself, reflect on
the individual's suitability for assignment to other duties and shall
not, in itself, be a cause for loss of pay or other benefits or other
changes in employment status;
(c) Personnel management actions based on the consideration of
technical competence and other job qualification requirements shall not
affect the qualification for the PAP;
(d) Except for the functions in section 8(b), managers of
Operations Offices may delegate PAP functions to the deputy managers,
assistant managers, division directors, and/or area office managers;
and
(e) These interim procedures and standards do not apply to
responses to unplanned events (e.g., Accident Response Group
activities), which are addressed in DOE 5530-series Orders and DOE
Order 151.1, ``Comprehensive Emergency Management System.''
2. Definitions
(a) ``Access'' means the proximity to a nuclear explosive that
affords a person the opportunity to tamper with it or to cause a
detonation.
(b) ``Custody'' means responsibility for control of and access to
nuclear explosives.
(c) ``Hallucinogenic drug'' means D-lysergic acid diethylamide
(LSD), mescaline (peyote cactus), methoxylated amphetamines, or
psilocybin (Psilocybin fungus).
(d) ``Illegal drug'' means cocaine, marijuana, opiates,
amphetamines, or phencyclidine.
(e) ``Nuclear explosive'' means an assembly containing fissionable
and/or fusionable materials and main charge high explosive parts or
propellants capable of producing a nuclear detonation (e.g., a nuclear
weapon or test device).
(f) ``Nuclear explosive area'' means any area that contains nuclear
explosive or collocated pit and main charge high explosive parts.
(g) ``Nuclear explosive duty'' means work assignments that allow
custody of a nuclear explosive device or access to a nuclear explosive
device or area.
(h) ``PAP certifying official'' means the DOE Operations Office
manager or the manager's delegate, unless the Secretary of Energy
delegates the certification function to another individual. The
certification function shall not be delegated to a level lower than
area office manager.
(i) ``Pit'' means a fissile component, or a set of fissile
components, designed to fit in the central cavity of an implosion
system and which if placed therein will create a nuclear explosive.
(j) ``SOMD'' means the Site Occupational Medical Director.
3. Requirements
Prior to being assigned to nuclear explosive duties, personnel
shall be certified in the PAP by a PAP certifying official and be
recertified annually, not to exceed 12 months between recertifications.
To be certified, an individual must:
(a) Have an active DOE Q access authorization;
(b) Sign an acknowledgment and agreement to participate in the PAP
on a form for certification and recertification provided by DOE;
(c) Complete a medical assessment for certification and
recertification as required by the SOMD in compliance with section 11
of these interim certification procedures and standards; and
(d) Be interviewed and briefed on the importance of the nuclear
explosive duty assignment, PAP requirements, and the nature and
objectives of the PAP. If an individual chooses to not participate in
the PAP, he or she shall sign a form provided by DOE documenting that
refusal.
4. PAP Certification Process
The PAP Certifying Official determines certification or
recertification and reviews circumstances concerning an individual's
decertification from nuclear explosive duties and possible
recertification. Managers of Operations Offices who exercise
jurisdiction over PAP certification shall issue instructions for
implementing the PAP. As a minimum, the instructions shall provide for:
(a) Conducting a supervisory interview of each individual, during
which the supervisor shall determine the individual's willingness to
accept the requirements and conditions of the PAP;
(b) Ensuring that individuals undergo the medical assessment
required by section 11;
(c) Ensuring that the personnel security file has been reviewed for
PAP concerns;
(d) Ensuring that other available personnel data has been reviewed
for PAP concerns;
(e) Allowing the exchange of information concerning a PAP
individual among responsible DOE or DOE contractor officials during the
certification, recertification, or decertification process;
(f) Requesting DOE certification or recertification of contractor
personnel when the contractor has determined, on the basis of all
information available, that the individual is suitable. The contractor
requesting certification or recertification shall assure the PAP
certifying official that all PAP certification requirements have been
met;
(g) Addressing any requirement not met during the recertification
process. The contractor shall provide any personal data that may have a
bearing on the individual's recertification;
(h) Documenting PAP certification/recertification on a form
provided by DOE;
(i) Developing a mechanism for co-workers, supervisors, and
managers to communicate concerns regarding an individual's suitability
to perform nuclear explosive duties; the instructions shall ensure that
these concerns are reported to the appropriate official, as specified
in sections 5 and 6, for timely resolution; and
(j) Ensuring that if an individual is no longer being considered
for assignment to nuclear explosive duties or is no longer assigned to
such duties, any processing of a decision with respect to the
individual's certification will be terminated. If, at a later date, the
same individual is again being considered for assignment to nuclear
explosive duties, processing of the individual's certification shall be
completely redone.
5. Supervisor Responsibilities
Supervisory personnel are responsible for observing PAP-certified
individuals and reporting and documenting behavior that would cause a
reasonable belief that the individual's ability to perform assigned
tasks in a safe, secure and reliable manner may be impaired. An
individual whose PAP suitability is in question shall be immediately
removed from nuclear explosive duties, as provided in section 7.
Behavior that could indicate unsuitability for the PAP, regardless of
how the knowledge was obtained or where the incident occurred, shall be
reported immediately to the SOMD and/or other PAP official
[[Page 53021]]
for evaluation. Examples of such behavior include the following:
(a) Psychological or physical disorders that impair performance of
assigned duties;
(b) Illegal conduct, arrest, or conviction;
(c) Indications of deceitful or delinquent behavior;
(d) An attempt or implied threat to destroy property or life;
(e) Suicidal tendencies or attempted suicide;
(f) Use of illegal drugs, the abuse of alcohol, or the abuse of
legal drugs;
(g) Recurring financial irresponsibility;
(h) Irresponsibility in performing assigned duties;
(i) Inability to deal with stress, or the appearance of being under
unusual stress;
(j) Evidence of failure to understand work directives, hostility or
aggression toward fellow workers or authority, uncontrolled anger,
willful violation of safety or security procedures, or repeated
absenteeism; and
(k) Significant behavioral changes, moodiness, depression, or other
evidence of loss of emotional control.
6. Individual Responsibilities
(a) Individuals in the PAP are responsible for reporting any
behavior of other PAP personnel that could indicate unsuitability for
nuclear explosive duties, including the types of behavior listed in
section 5, to a supervisor, the SOMD, or a PAP official.
(b) Individuals who are in the PAP are responsible for reporting
any condition that may affect their own suitability for nuclear
explosive duties to a supervisor, to the SOMD, or to a PAP official.
7. Immediate Removal From Nuclear Explosive Duties
(a) An individual whose PAP suitability is in question shall be
immediately removed from nuclear explosive duties. Immediate removal
from nuclear explosive duties requires, as a minimum, that:
(1) The individual ceases performance of nuclear explosive duties;
(2) The individual shall be denied access to nuclear explosive
areas; and
(3) The circumstances that led to the removal of the individual
from nuclear explosive duties shall be documented.
(b) Immediate removal from nuclear explosive duties does not
constitute a determination that the individual is unsuitable for
nuclear explosive duties. It only means that the individual's
suitability is in question.
(c) Immediate removal action will not, in itself, be cause for loss
of pay or other benefits or other changes in employment status.
8. Removal From PAP
(a) When the DOE PAP certifying official receives official written
notification that an individual has been removed from nuclear explosive
duties and the reasons for such removal, the individual shall be
temporarily removed from PAP.
(b) The PAP certifying official shall conduct and document an
evaluation of the circumstances of the temporary removal. The
evaluation shall include the PAP certifying official's determination
regarding the individual's suitability for continuing PAP certification
and appropriate recommendations.
(1) If the certifying official determines that continuing PAP
certification is appropriate, the Operations Office manager shall be
notified and the individual reinstated in the PAP. The individual may
resume nuclear explosive duties.
(2) If the certifying official determines that continuing PAP
certification is inappropriate, the Operations Office manager shall be
notified and provided with the PAP certifying official's evaluation and
recommendations.
(c) The operations office manager, after receiving the evaluation
from the PAP certifying official that an individual is not suitable for
continuing PAP certification, shall take one of the following actions:
(1) Direct that the individual be reinstated in the PAP and
document the basis for reinstatement.
(2) Direct that action be initiated to revoke the individual's PAP
certification, in accordance with Section 12, and document the basis
for the action; or
(3) Direct that appropriate actions be taken to resolve PAP
concerns (e.g., medical assessment, security evaluation,
rehabilitation); based on the results of these actions, the PAP
certifying official will provide a written recommendation to the
operations office manager, who shall take action (1) or (2) above, as
appropriate.
9. List of PAP-Certified Personnel
Managers of operations offices who grant PAP certifications shall
establish procedures for developing and maintaining a current list of
DOE and DOE contractor personnel certified in the PAP. The list will be
used for PAP program administration; it is not an authorization for
personnel to perform nuclear explosive duties. The list shall be
promptly updated and verified on a quarterly basis.
10. PAP Training Requirements
Managers of Operations Offices shall ensure a program is developed
and maintained to:
(a) Provide special training in the nature and objectives of the
PAP to all individuals with nuclear explosive duties;
(b) Provide special training to medical personnel performing
medical assessments for PAP certification and recertification; the
medical training program shall:
(1) Explain nuclear explosive duties and nuclear explosive safety;
(2) Explain the objectives, purposes, policies, and requirements of
the PAP;
(3) Include an orientation visit to nuclear explosive areas; and
(4) Emphasize the importance of timely reporting of any PAP concern
to appropriate personnel;
(c) Provide supervisory-level PAP training to DOE and DOE
contractor supervisors of PAP individuals and to DOE PAP certifying
officials; and the supervisory training program shall:
(1) Explain nuclear explosive duties and nuclear explosive safety;
(2) Explain the objectives, purposes, policies, and requirements of
the PAP;
(3) Include training on the early identification of behavior
(including attitude, job performance, use of illegal drugs, abuse of
alcohol, or the abuse of legal drugs) that indicates a degradation in
reliability or judgment; and
(4) Emphasize the importance of timely reporting of any PAP concern
to appropriate personnel;
(d) Establish and maintain PAP training records for supervisors of
PAP personnel, PAP personnel, and medical personnel.
11. Medical Assessments
(a) The purpose of medical assessments is to ensure that an
individual does not have a condition that may prevent performance of
nuclear explosive duties in a safe and reliable manner. Medical
assessments consist of physical examinations and psychological
evaluations for PAP certification and recertification. In addition,
individuals in the PAP are subject to evaluation for drug and alcohol
abuse.
(b) A medical assessment for PAP certification and recertification
shall include:
(1) A comprehensive physical examination;
(2) A psychological evaluation by the clinical psychologist
designated by the SOMD, with concurrence from the DOE Office of
Occupational Medicine:
(i) For the initial certification, the psychological evaluation
consists of a
[[Page 53022]]
generally accepted, self-reporting psychological inventory tool
approved by the Director of the Office of Occupation Medicine, and a
semi-structured interview;
(ii) For recertification, the psychological evaluation consists of
a semi-structured interview;
(iii) Every third year, the medical evaluation for recertification
shall include a generally accepted self-reporting psychological
inventory tool approved by the Director of the Office of Occupational
Medicine; and
(iv) Additional psychological evaluations may be required by the
SOMD when necessary to resolve PAP concerns.
(c) The policies applicable to a medical assessment in order to
evaluate for drug abuse are as follows.
(1) Except as otherwise provided by this paragraph, a medical
assessment for Federal employees shall be conducted under DOE 3792.3,
``Drug-Free Federal Workplace Testing Implementation Program'';
(2) Except as otherwise provided by this paragraph, a medical
assessment for contractor employees shall be conducted under 10 CFR
part 707;
(3) For any individual in the PAP, there shall be a test for
illegal drugs at least once during every 12 months in an unannounced
and unpredictable manner, and if warranted, for cause or reasonable
suspicion.
(4) If, in a medical assessment, an individual refuses to submit a
urine sample or attempts deception by substitution, adulteration or
other means, then DOE immediately shall remove the individual from
nuclear explosive duties.
(5) Confirmation of use of illegal drugs through drug testing shall
result in revocation of PAP certification.
(6) When DOE suspects use of a hallucinogenic drug, the Department
will review the circumstances, and for reasonable suspicion or cause
may test an individual for hallucinogenic drug use. If DOE determines
that an individual has used any hallucinogenic drug, then the
individual shall not be eligible for PAP certification or
recertification unless:
(i) Five years has passed since the last use of the hallucinogenic
drug;
(ii) The individual has a record of acceptable job performance and
observed behavior;
(iii) The individual is not susceptible to flashbacks resulting
from hallucinogenic drug use; and
(iv) A medical evaluation is performed to determine reliability.
(7) In each case of drug abuse, the SOMD, in consultation with the
clinical psychologist, shall evaluate the individual for evidence of
psychological impairment and make a recommendation to the PAP
certifying official as to the individual's reliability.
(8) After successfully completing an SOMD-approved drug
rehabilitation program, and subject to SOMD-directed unannounced tests
for illegal drugs and relevant counseling for three years, DOE may
reinstate an individual in the PAP based on the SOMD's follow-up
evaluation and recommendation.
(d) The policies applicable to a medical assessment for alcohol use
or abuse are as follows.
(1) When alcohol abuse is suspected, an individual shall be
examined for evidence of alcohol abuse. Evidence of alcohol abuse is
reason to question the individual's certification or continued
certification in PAP and shall require further evaluation, which may
include psychological assessment.
(2) Alcohol consumption is prohibited within an eight-hour period
preceding and during nuclear explosive duties. DOE shall implement or
require the contractor to implement procedures that will ensure that
persons called in to perform unscheduled work are fit to perform the
task assigned.
(3) Individuals in the PAP shall be tested at the work site if
there is reasonable indication of alcohol use in violation of the
requirements of paragraph 11(d)(2) of these interim procedures and
standards.
(4) Tests for alcohol must be administered by a certified Breath
Alcohol Technician using an evidential-grade breath analysis device
that conforms to the Department of Transportation's (DOT) National
Highway Traffic Safety Administration model specifications (58 FR
48705, September 17, 1993), and the most recent ``Conforming Products
List'' issued by DOT.
(5) An individual whose confirmatory breath alcohol test result is
at or above a blood alcohol concentration of 0.02 percent shall not be
allowed to perform nuclear explosive duties for a minimum of 24 hours.
(6) Individuals refusing to submit to a breath alcohol test shall
be immediately removed from nuclear explosive duties.
(7) The SOMD, in conjunction with the clinical psychologist, shall
evaluate each case of alcohol abuse for evidence of psychological
impairment and provide the PAP certifying official a recommendation as
to the individual's reliability.
(8) After successfully completing an SOMD-approved alcohol
treatment program, DOE may reinstate an individual in the PAP based on
the SOMD's follow-up evaluation and recommendation.
12. Due Process
(a) The operations office manager, prior to rendering a decision
not to certify or to revoke the PAP certification of a DOE employee or
contractor employee, shall provide, in writing, the following
information to the individual regarding the PAP suitability decision
and review process:
(1) The individual has three options after receiving notification
of the manager's decision:
(i) Take no action; or
(ii) Respond to the information giving rise to the question of the
individual's suitability in writing to the manager, under oath or
affirmation before a notary public, within 20 working days of receipt
of the notification; or
(iii) Request, in writing to the manager, to appear before a
certification review hearing officer, as provided in subparagraph (b),
for a review of the information giving rise to the question as to the
individual's suitability. The individual must request this option
within 20 working days from receipt of the notification.
(2) At the review conducted by the certification review hearing
officer, the individual may be represented by counsel of the
individual's own choosing and at the individual's own expense;
(3) At the review, the individual may provide witnesses and
documents in support of his or her claim for suitability for PAP
certification or recertification; and
(4) If the individual does not request a certification review
hearing, the final decision as to suitability shall be based upon the
individual's response and other information available to the manager.
(b) Upon receipt of a request from the individual for a
certification review hearing, the operations office manager shall
appoint a certification review hearing officer, who shall be a DOE
attorney, with the appropriate DOE access authorization. The manager
shall also appoint a DOE attorney as counsel to the Department to
assist in the following:
(1) Obtaining evidence;
(2) Arranging for the appearance of witnesses;
(3) Examining and cross-examining witnesses; and
(4) Notifying the individual in writing, at least 7 working days in
advance, of the scheduled place, date, and hour where the review will
take place.
[[Page 53023]]
(c) The certification review hearing officer shall:
(1) Conduct the review in an orderly and impartial manner with
every effort made to protect the interests of the Government and the
individual;
(2) Present all information relating to the individual's
suitability through witnesses or documentation;
(3) Ensure that the individual is allowed the opportunity to refute
the information and to submit mitigating information relating to his or
her suitability. The individual shall be permitted to offer information
in his or her behalf; to call, confront, examine, and cross-examine
witnesses and other persons who have made written or oral statements,
except as provided in subparagraph (4); and to present and examine
evidence;
(4) Have the option to receive and consider oral or written
statements adverse to the individual without affording the individual
the opportunity to cross-examine the person making the statement in
either of the following circumstances:
(i) The substance of the statement was contained in the
individual's personnel clearance investigative file before the question
as to the individual's suitability arose; and the head of the Federal
agency supplying the statement certifies that the person who furnished
the information is a confidential informant who has been engaged in
obtaining intelligence information for the Government, and the
disclosure of that person's identity would substantially harm the
national security; or
(ii) The substance of the statement was contained in the
individual's personnel clearance investigative file before the question
as to the individual's suitability arose, and the Assistant Secretary
for Defense Programs (ASDP) or his or her designee for that particular
purpose has determined, after considering information furnished by the
investigative agency as to the reliability of the person and the
accuracy of the statement, that--
(A) The statement appears to be reliable and material; and
(B) Failure of the hearing officer to receive and consider such
statement would substantially harm the national security; and
(C) The person who furnished the information cannot appear to
testify due to death or severe illness, or some other good cause as
determined only by ASDP.
(5) Ensure that whenever procedures under subparagraph (4) are
used, the individual is given a summary of the information, which shall
be as comprehensive and detailed as the national security permits. In
addition, whenever a statement is received under subparagraph (4)(ii),
the identity of the person making the statement and the information to
be considered shall be made available to the individual. Appropriate
consideration shall be accorded to the fact that the individual did not
have an opportunity to cross-examine such person. When the procedures
under subparagraph (4) are used, the operations office manager shall
assist the hearing officer in obtaining the necessary verifications or
determinations.
(6) Require the testimony of the individual and of all witnesses to
be given under oath or affirmation.
(7) Record the review proceedings verbatim and forward a copy of
the record to the operations officer manager; and
(8) Provide written findings and recommendations, with supporting
rationale, to the operations office manager.
(d) Upon receipt of the certification review hearing officer's
submissions, and after receiving the individual's response in cases in
which the individual did not request a hearing, the operations office
manager shall promptly issue a decision in the matter. If the manager
decides not to certify or to revoke the PAP certification, the manager
shall inform the individual in writing of the decision and the reasons
supporting it.
(e) If a hearing was conducted, the operations office manager shall
forward, along with his or her decision, a copy of the record of the
review proceedings and of the certification review hearing officer's
findings and recommendations, with supporting rationale, to the
individual.
(1) Within 20 working days of the individual's receipt of the
Operations Office manager's decision, the individual may request a
review by ASDP. The individual must request this review and provide
supporting justification in writing to ASDP through the operations
office manager and the Deputy Assistant Secretary for Military
Application and Stockpile Management. The request must be in writing
and include:
(i) A copy of the operations office manager's decision and
supporting documentation; and
(ii) If a hearing was conducted, a copy of the record of the review
proceedings and of the certification review hearing officer's findings
and recommendations.
(2) Upon receipt of an individual's request for review, ASDP shall
review all information forwarded by the operations office manager and
issue a decision.
(3) If the individual does not request a ASDP review within 20
working days of receipt of the manager's decision, the manager's
decision shall be final.
[FR Doc. 96-25881 Filed 10-8-96; 8:45 am]
BILLING CODE 6450-01-P
