[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Rules and Regulations]
[Pages 48060-48074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23885]
[[Page 48059]]
_______________________________________________________________________
Part IV
Department of Energy
_______________________________________________________________________
10 CFR Part 711
Personnel Assurance Program; Final Rule
Federal Register / Vol. 63, No. 173 / Tuesday, September 8, 1998 /
Rules and Regulations
[[Page 48060]]
DEPARTMENT OF ENERGY
Personnel Assurance Program
10 CFR Part 711
RIN 1992-AA14
[Docket No. DP-RM-97-100]
Personnel Assurance Program; Final Rule
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE or Department) today is
publishing a final rule on Personnel Assurance Program (PAP) procedures
and standards for DOE and DOE contractor employees 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 become
emotionally, mentally, or physically incapacitated. The rule includes
medical standards for evaluating DOE and contractor employees in the
PAP.
EFFECTIVE DATE: This rule is effective October 8, 1998.
FOR FURTHER INFORMATION CONTACT: For further information concerning
this final rule: Mr. Randall Weidman, U.S. Department of Energy, Office
of Defense Programs (DP-21), 1000 Independence Ave., SW., Washington,
D.C. 20585, (301) 903-3154.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Public Comments and Regulatory Text
A. Subpart A: PAP Certification/Recertification, Temporary
Removal/Reinstatement, and Revocation of PAP Certification
B. Subpart B: Medical Assessments for PAP Certification/
Recertification
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under Executive Order 12612
C. Review Under the Regulatory Flexibility Act
D. Review Under the National Environmental Policy Act
E. Review Under the Paperwork Reduction Act
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Congressional Notification
I. 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 under 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
weapon systems.
Pursuant to section 161 of the Act, 42 U.S.C. 2201(b), (i)(3), and
(p), DOE and its predecessor agencies have used some version of the 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, mental, and physical capability. In DOE's internal
administrative directives, DOE Order 452.2, formerly DOE Order 5610.11,
``SAFETY OF NUCLEAR EXPLOSIVE OPERATIONS,'' the term ``Nuclear
Explosive Duties'' has been defined to include duties performed by DOE
or contractor employees who have custody of or access to a nuclear
explosive.
All PAP-certified employees are subject to continuous review and
evaluation. The certification of such employees is subject to immediate
review in light of facts and circumstances when an employee's behavior
indicates 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 rather indicates that the
individual's suitability is in question.
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, ``NUCLEAR EXPLOSIVE SAFETY,'' 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 Independent Guard
Association of Nevada v. O'Leary, No. CV-S-92-204-LDG-LRL (D. Nev. June
14, 1996), the District Court 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.
DOE published a notice of interim procedures and standards for the
PAP on October 9, 1996 (61 FR 53018). The interim PAP procedures and
standards were made effective immediately upon publication to mitigate
the occupational and public safety risk during the period of time
required to complete a public rulemaking proceeding.
On June 4, 1997, DOE published a notice of proposed rulemaking
(NOPR) to codify the PAP employee certification procedures and
standards and other PAP-related policies, including the
responsibilities of the Site Occupational Medical Director (SOMD) and
other medical personnel. The proposed rule contained provisions that
are similar to those in the notice of interim procedures and standards.
The NOPR also contained administrative procedures and standards for the
conduct of medical assessments for PAP certification that were not
included in the interim rule, but which generally conform to existing
practice.
(Note: Unless otherwise indicated, references in this
Supplementary Information section to ``PAP certification,''
``certification,'' or ``certification process,'' include annual
recertification because generally the procedures and standards are
the same.)
DOE received seven written comments on the proposed rule. Comments
were received from two organizations that represent security guards
(Independent Guard Association of Nevada, Local No. 1, and the National
Council of Security Inspectors); an organization concerned about
nuclear safety issues (Serious Texans Against Nuclear Dumping or
STAND); the U.S. Equal Employment Opportunity Commission (two
comments); the PAP Coordinator at one DOE facility; and an individual
employed at another DOE facility. In addition, three individuals and a
representative of the Independent Guard Association of Nevada presented
oral comments on the proposed rule at public hearings that were held in
Amarillo, Texas, and Las Vegas, Nevada, in July of 1997. DOE has
carefully considered all of these comments in preparing this final
rule.
II. Discussion of Public Comments
This part of the Supplementary Information section contains the
Department's responses to issues raised in public comments on the
proposed rule and an explanation of changes that DOE has made in this
final rule in response to the public comments and as a result of
additional internal review.
[[Page 48061]]
A. Subpart A: PAP Certification/Recertification, Temporary Removal/
Reinstatement, and Revocation of PAP Certification
1. Definitions
In this final rule, DOE makes several changes to the definitions
that apply to this part.
DOE has moved the definitions from proposed section 711.22, in
subpart B, to section 711.3 to have all definitions in one location.
A definition of ``PAP official'' has been added to section 711.3 to
clarify that the term includes any DOE manager or supervisor involved
in the PAP certification process.
As proposed, the definition of ``illegal drug'' provided that the
term would not apply to the use of a controlled substance in accordance
with the terms of a valid prescription ``or other uses authorized by
law.'' In the final rule, DOE has revised the quoted phrase to read:
``or other uses authorized by Federal law.'' This change is made to
clarify that the definition of ``illegal drug'' used in this part would
take precedence over any inconsistent state or local law.
2. General Provisions and Requirements
Two commenters objected to proposed section 711.4(b) which would
have provided: ``Nothing in this part shall be construed as prohibiting
contractors from establishing stricter suitability standards for
selecting candidates for nomination to DOE for certification or
recertification in the PAP.'' DOE proposed this paragraph to make clear
that by establishing procedures and standards for PAP certification,
DOE did not intend to prevent contractors from establishing more
stringent employment standards for their own business purposes.
Commenters argued that this approach would result in contractors
negotiating with labor organizations over PAP certification standards
that would apply to their employees, and that this would produce non-
uniform PAP standards. DOE does not agree with these arguments because
decisions to certify or deny certification in the PAP will be made by
DOE employees only in accordance with the procedures and standards in
part 711. DOE employees will not use a more stringent contractor
employment requirement, should any exist, in making a decision
regarding a PAP individual's certification. Accordingly, DOE has not
changed the substance of section 711.4(b).
These commenters also asked for clarification of proposed section
711.4(d), which provides that personnel management actions involving an
employee will be considered in making PAP certification decisions only
if they are based on behavior that also affects an individual's
suitability for the PAP. Stated another way, an individual's PAP
certification will not be affected by any personnel management action
involving the individual that is not based on behavior that raises a
concern about the individual's suitability for the PAP. DOE believes
the proposed language is clear and, therefore, section 711.4(d) is
unchanged.
DOE has deleted proposed section 711.4(e), regarding evaluation for
hallucinogen use because the substance of that provision is included in
section 711.5(b)(5). This deletion from the section eliminates this
redundancy.
One commenter, a PAP coordinator at a DOE facility, expressed
concern that proposed section 711.5(b)(2), which would require that PAP
individuals sign an acknowledgment and agreement to participate in the
PAP, did not mention one form currently in use, the ``Authorization and
Consent to Release Personal Records in Connection with the Personnel
Assurance Program'' form. That form is not specifically referenced in
the rule because DOE intends to consolidate the current agreement to
participate and consent forms into a single form. DOE did not intend to
suggest, by omitting reference to the consent to release personal
records form, that DOE would not continue to require that PAP
individuals consent to release of records.
Section 711.5(b)(5), and section 711.43 in subpart B, set forth a
special policy for disqualification from the PAP for hallucinogen use.
``Hallucinogen'' is defined in section 711.3 so as to limit PAP-
disqualifying hallucinogens to those hallucinogenic drugs or substances
that cause flashbacks. The rule provides that use of a hallucinogen in
the preceding 5 years is disqualifying. Hallucinogen use more than 5
years preceding the application for certification/recertification is
not, in itself, an adequate basis for denying certification or
recertification or for revocation of certification. The 5-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 hallucinogen experience. Because flashbacks are sudden,
often unpredictable, largely involuntary, dramatic alterations of
emotional state, perception, sensation, and behavior, an accident could
result if a flashback were to occur during the performance of a
hazardous task. Flashbacks may occur within a few days after
hallucinogen use, or they may occur a few weeks, months, or even years
later. In developing the 5-year rule, DOE consulted with experts at the
Alcohol, Drug Abuse and Mental Health Administration of the Department
of Health and Human Services. DOE placed the views, and a review of
relevant studies, submitted by the National Institute on Drug Abuse, in
the docket established for this rulemaking. Although an individual who
used a hallucinogen more than 5 years earlier would be considered for
nuclear explosive duties, section 711.43 provides that an individual
who has used a hallucinogen must undergo a medical evaluation to
determine reliability. In addition, the individual must have an
acceptable job record and observed behavior.
DOE received comments on the hallucinogen policy, as provided in
proposed section 711.5. As proposed, section 711.5(b)(5) stated that to
be certified in the PAP, an individual ``shall: (5) Not have used any
hallucinogen in the preceding 5 years, and shall not be susceptible to
flashbacks resulting from use of any hallucinogen more than 5 years
before applying for certification or recertification.'' One commenter
objected to the use of the word ``susceptible,'' arguing that it would
establish too subjective a standard for determining the risk of
flashbacks occurring from hallucinogen use more than 5 years prior to
filing of an application for certification or recertification. DOE has
revised section 511.5(b)(5) to replace the word ``susceptible'' with
the standard: ``shall not have experienced a flashback''. DOE believes
this is a more measurable, yet sufficiently protective, standard.
A commenter questioned the adequacy of the requirement in proposed
section 711.5(b)(6) that each individual in the PAP be tested for
illegal drugs, on a random basis, ``at least once each calendar year''.
The commenter expressed concern that the interval between drug tests
could be much greater than once in each 12-month period. DOE did not
intend the proposed rule to change existing practice regarding the
frequency of drug testing. To clarify this in the final rule, DOE has
included in sections 711.5(b)(6) and 711.5(b)(7) cross-references to
the applicable requirements. For DOE employees, the applicable
requirements for drug testing are in DOE Order 3792.3, ``Drug-Free
Federal Workplace Testing Implementation Program,'' and for
[[Page 48062]]
contractor employees, the applicable requirements are in 10 CFR Part
707, ``Workplace Substance Abuse Programs at DOE Sites.''
Section 711.5(d) provides that an individual will be denied
certification, or will have his or her certification revoked, if drug
testing confirms that the individual has used an illegal drug. A person
who uses illegal drugs is not suitable for nuclear explosive duties.
Proposed section 711.5(e) would have provided that an individual whose
certification is revoked because of illegal drug use ``may be
reinstated in the PAP if the individual successfully completes a SOMD
approved drug rehabilitation program as provided in Sec. 711.42 of
subpart B.'' One commenter argued that DOE should automatically
reinstate an individual in the PAP following successful completion of
an approved drug rehabilitation program. DOE has not adopted this
comment because DOE cannot, for reasons of sound administration, hold
open a position in the PAP for an individual who undertakes to complete
a drug rehabilitation program. In addition, the PAP certifying official
must base reinstatement decisions on a comprehensive evaluation of each
individual case.
Section 711.6 sets forth requirements for the PAP certification
process. Under section 711.6(b) each operations office manager who has
jurisdiction over PAP certification shall issue implementing
instructions that accomplish specified objectives. Because of the
varied nature of the workforce at DOE sites, the rule does not dictate
the implementation details, but rather sets forth performance standards
to be achieved.
DOE received comments concerning the possible abuse of the
certification process or misuse of information obtained in that process
to retaliate against particular employees for actions unrelated to PAP
suitability. One commenter alleged that the PAP or equivalent DOE
programs have been used to stifle employee concerns and as a tool for
reprisals against whistle-blowers. The commenter urged DOE to include
safeguards in the rule to protect employees from misuse of information
or the certification process.
While the rule gives individuals certain rights in the process for
resolving PAP concerns, it does not include whistle-blower protection
provisions because whistle-blower protection is provided in separate
regulations. In 1992 DOE established a DOE Contractor Employee
Protection Program which prescribes procedures for processing
complaints by contractor employees that allege discriminatory action by
an employer in retaliation for the employee's disclosure of information
related to health and safety, mismanagement, and other matters; for
participation in proceedings before Congress or the Department; or for
refusal to engage in illegal or dangerous activities. 57 FR 7533 (Mar.
3, 1992). The regulations are codified at 10 CFR part 708. DOE
established the Contractor Employee Protection Program for employee
complaints that are not covered by the whistle-blower protection
program administered by the Department of Labor under 29 CFR part 24,
``Procedures for the Handling of Discrimination Under Federal Employee
Protection Statutes.'' On October 25, 1996, DOE published a Notice of
Inquiry that invited public comment on experience under, and
recommendations for improving, the DOE Contractor Employee Protection
Program. 61 FR 55230. After considering the comments it received, DOE
published a notice of proposed rulemaking on January 5, 1998, to amend
part 708 (63 FR 374). DOE believes these existing laws and programs are
adequate for hearing and resolving employee complaints of reprisals for
actions involving health or safety violations and other violations of
law.
One commenter objected to proposed section 711.6(b)(9), which would
require that the operations office manager develop a mechanism for co-
workers, supervisors, and managers to communicate concerns about PAP
individuals' suitability for nuclear explosive duties. The commenter
thinks a rule that obligates workers to share adverse information about
co-workers with management will create distrust in the workplace.
The balance struck in the final rule between protection of
individual rights and reporting of safety concerns is dictated by the
nature of the work carried out at facilities or areas subject to the
PAP. Employees in the PAP work with, or have access to, nuclear
explosives, and an accident could result in severe injuries to
personnel, loss of life, or damage to the environment. Therefore, it is
necessary to require individuals in the PAP, as a condition of their
employment, to report behavior or information about other employees
that may raise a concern about an individual's ability to perform
nuclear explosive duties in a safe and reliable manner. Moreover, PAP
individuals must expect that other employees will report such
information about them, and they are required to report such
information about themselves. Section 711.5(b)(2) provides that
individuals who choose to work in the PAP must sign an agreement to
participate and comply with PAP requirements.
While DOE has not made the change requested to section 711.6(b)(9),
DOE has revised section 711.6(b)(5) to limit the persons who have
access to information in a PAP individual's Personnel Security File.
DOE also received public comment on proposed section 711.9(b),
which is a non-exclusive list of conditions and behavior that may raise
PAP concerns and lead to removal of an individual from nuclear
explosive duties. One commenter stated that some of the conditions or
behavior listed in proposed section 711.9(b) are highly subjective and
may be used by vindictive employees or managers to have employees
removed from the PAP. The safety-sensitive nature of nuclear explosive
duties requires that DOE grant supervisors latitude to decide if an
individual's behavior or condition warrants temporary removal from the
PAP pending a determination of suitability. The behavior and conditions
listed in section 711.9(b) are illustrative of behavior or conditions
that could cause a supervisor to question a PAP individual's ability to
perform nuclear explosive duties in a safe and reliable manner. It is
not possible to foreclose the possibility that a person would
vindictively, or even falsely, provide derogatory information to a
supervisor. It is important to recognize that temporary removal is a
routine, but vital, protective measure to ensure the safety of
personnel at these facilities. Moreover, under this final rule,
temporary removal is followed by an elaborate process for fairly
resolving concerns about an individual's suitability for the PAP.
Another commenter objected to proposed section 711.9(b)(2),
concerning conduct ``that is illegal or results in arrest or
conviction,'' on the ground that DOE supervisors generally are not
trained to determine what conduct is illegal. The commenter asked that
the provision be limited to convictions. DOE has not accepted the
suggestion to limit this provision to evidence of a conviction because
an arrest for certain criminal activity could raise a concern about an
individual's suitability for the PAP. However, DOE has revised section
711.9(b)(2) in the final rule by replacing the word ``illegal'' with
the words ``warrants referral for a criminal investigation.'' This
change eliminates the requirement for a conclusion of law by the
supervisor.
[[Page 48063]]
3. Procedures for Temporary Removal, Reinstatement in the PAP, and
Denial or Revocation of PAP Certification
Two commenters objected to the omission in proposed section
711.12(b) of any deadline for completion of the PAP certifying
official's evaluation and decision regarding the suitability of an
individual who has been removed from nuclear explosive duties. DOE does
not think it is desirable to place a time limit on the PAP certifying
official's evaluation and suitability determination. The amount of time
required to gather pertinent data and reach a decision regarding
suitability for nuclear explosive duties will vary depending on the
information or allegations that led to removal. DOE does not think the
absence of a time limit will cause an individual to be in ``limbo'' for
an extended time, as one commenter suggested. The need for the
individual's services and the fact that removal does not affect the
employee's pay or benefits are incentives for both the individual's
employer and PAP officials to resolve the issues as quickly as
possible.
Two commenters argued that an individual removed from nuclear
explosive duties should be given a copy of the evaluation prepared by
the PAP certifying official. The proposed section 711.12(d) already
would require that the operations office manager prepare a written
decision that includes the reasons and factual basis for the decision.
DOE has revised the rule to clarify that the individual shall be given
a copy of the operations office manager's reasons and factual support.
Further, DOE has revised the rule to provide that an individual removed
from nuclear explosive duties is entitled to a copy of the PAP
certifying official's evaluation, unless the operations office manager
determines that the release of that document or portions thereof, may
be withheld under an exemption of the Privacy Act or the Freedom of
Information Act.
Two commenters objected to proposed sections 711.12(g) and (h)
because those provisions would require an individual who receives an
initial decision from the operations office manager to choose either
reconsideration by the operations office manager or a certification
review hearing. In the commenters' view, an employee who chooses
reconsideration is unfairly penalized by loss of the right to have a
certification review hearing. DOE has not changed the rule in response
to these comments because allowing individuals to request both
reconsideration by the operations office manager and a certification
review hearing could unduly prolong the resolution of PAP certification
issues.
The request for reconsideration provided in section 711.12(g)(2)
and the certification review hearing under section 711.14 are
dissimilar processes. The request for reconsideration procedure gives
the individual an opportunity to provide to the operations office
manager relevant information and statements on the matters in question.
An individual may feel this opportunity is all that is needed, or may
choose this informal process in order to obtain a quick administrative
decision that, if unfavorable, could be challenged in a court
proceeding. The certification hearing process, on the other hand,
allows the individual to submit evidence on the relevant matters
through presentation of witness testimony and cross-examination. Some
individuals may decide that this option, although more costly, will be
most effective in protecting their interests. An adverse decision
resulting from either procedure may be appealed to the Assistant
Secretary for Defense Programs and, ultimately, to a court. DOE
believes the procedures established in the final rule adequately
protect individual rights and, therefore, the final rule does not allow
an individual to request both reconsideration and a certification
review hearing.
A commenter objected to proposed section 711.14(c)(3), which
permits the certification review hearing officer to receive and
consider certain classified information that may be adverse to an
individual without permitting the individual to cross-examine the
source of the statement or information. These procedures, which are
narrowly limited, originate in Executive Order No. 10865,
``Safeguarding Classified Information Within Industry,'' reprinted as a
note to 50 U.S.C. 435. They were included in the Personnel Assurance
Program chapter of DOE Order No. 5610.11, ``Nuclear Explosive Safety,''
and similar provisions are included in 10 CFR part 710, ``Criteria and
Procedures for Determining Eligibility for Access to Classified Matter
or Special Nuclear Material.'' DOE has retained section 711.14(c)(3) in
the final rule because these exceptions to cross-examination are
longstanding and necessary to protect the national security.
The same commenter objected to proposed section 711.15, which deals
with the hearing officer's report and recommendation, because it does
not make the hearing officer's submission binding on the operations
office manager. The commenter argues that this process violates due
process and fundamental fairness. DOE has not changed the final rule to
make the hearing officer's report and recommendation binding on the
operations office manager under section 711.12(h). It is DOE's view
that an evidentiary hearing presided over by an independent hearing
officer, followed by an opportunity to appeal the operations office
manager's decision to the Assistant Secretary for Defense Programs,
constitutes a fair administrative process for resolving issues related
to PAP certification.
B. Subpart B: Medical Assessments for PAP Certification/Recertification
DOE received no public comments on proposed sections 711.20--
711.34, which cover the general applicability, purpose and scope of
subpart B, definitions, and responsibilities and authorities of PAP
officials. DOE has, after further consideration, made a number of minor
changes to these sections. These changes include moving the definitions
from section 711.22 to section 711.3; adding ``physical'' to the list
in section 711.21; and deleting the requirement to participate as a
member of the hostage negotiation team from section 711.31(c)(6).
DOE proposed in section 711.40 general medical standards that must
be met by individuals certified in the PAP. Proposed section 711.40
(a)--(f) lists conditions or behavior that may, depending on the
results of a medical assessment, disqualify an individual from
performing nuclear explosive duties. One commenter pointed out that
inclusion of the word ``past'' in proposed section 711.40(c), referring
to use of illegal drugs, conflicts with the 5-year rule established by
section 711.5. DOE agrees with this comment and has revised section
711.40(c) accordingly.
DOE received one comment on proposed section 711.41, which would
establish requirements applicable to the PAP medical assessment
process. The commenter stated that proposed section 711.41(d), which
would require use of a generally accepted, self-reporting psychological
inventory tool every third year in recertification medical assessments,
would be inconsistent with the 2-year cycle for medical assessments for
protective force personnel under 10 CFR part 1046. DOE plans to propose
amendments to part 1046 in the near future, and expects that any
inconsistency created by adoption of a 3-year cycle in this final rule
will be eliminated by that rulemaking. All personnel who currently meet
the 2-year psychological testing requirements of part 1046, as it
currently exists, will
[[Page 48064]]
meet the psychological testing requirements of this rule.
DOE proposed in section 711.42 requirements for detecting and
acting with regard to positive indications of drug abuse. DOE received
a comment on proposed section 711.42(d), which would provide that an
individual whose certification has been revoked may be reinstated in
the PAP if the person successfully completes a SOMD-approved drug
rehabilitation program and is subject to SOMD-directed unannounced
tests for illegal drugs and counseling for 3 years. The commenter
stated that such random drug testing may not be allowed by local
collective bargaining agreements. DOE has not changed section 711.42
because the restrictions on random drug testing at DOE sites in 10 CFR
part 707 do not apply to the situation covered in this section of the
rule. Under today's rule, an individual whose PAP certification is
revoked may be reinstated in the PAP if he or she accepts the
conditions of the SOMD-approved drug rehabilitation program. Section
711.42(d) establishes unannounced drug testing as a component of such a
program and, in order to take advantage of the rehabilitation
opportunity, the individual must agree to the testing.
DOE received comments on proposed section 711.44 concerning medical
assessment for alcohol use disorder. DOE proposed provisions that would
prohibit alcohol consumption by PAP individuals within the 8-hour
period immediately preceding nuclear explosive duties, and bar an
individual from performing nuclear explosive duties for a minimum of 24
hours if a confirmatory breath alcohol test (BAT) result is at or above
0.02 percent alcohol concentration. These provisions are consistent
with regulations promulgated by certain operating agencies of the
Department of Transportation (DOT) to implement the Omnibus
Transportation Employee Testing Act of 1991, Pub. L. No. 102-143, Title
V. See, e.g., the Federal Highway Administration's requirements in 49
CFR 382.505(b).
Commenters representing security guards stated that they have no
objection to the prohibition on alcohol consumption during the 8-hour
period preceding scheduled work. However, they strongly oppose
enforcing the rule against employees who are required by their employer
to report to work without advance notice. According to these
commenters, the 8-hour ``no drinking'' rule, coupled with the
prohibition on working for 24 hours if the BAT exceeds 0.02 percent,
would impair the ability of employers to meet staffing requirements.
The President of the Independent Guard Association of Nevada testified
in a public hearing on the rule that, according to the medical
department of a DOE prime contractor, a 225-pound person who stops
drinking at 7:00 p.m. after having consumed three beers earlier on the
same day could have an alcohol concentration of 0.02 percent at 6:00
a.m. the following day. Thus, if that person were forced to report for
work early the second day, he or she would be taken off the work
schedule for 24 hours even though the individual was not impaired.
Transcript of Las Vegas Hearing, page 8 (testimony of Michael
Cleghorn). Written comments suggested that employees could easily avoid
unscheduled overtime work by drinking intentionally. This, they stated,
would cause severe problems for employers because downsizing of
protective forces limits their ability to find replacements.
DOE agrees with the commenters that it would be inappropriate to
enforce an 8-hour ``no drinking'' rule against employees who are called
up for unscheduled work. Therefore, the final rule is revised to limit
its application to scheduled work. DOE will rely on breath alcohol
testing under revised section 711.44(c) to ensure that employees
required to report for unscheduled work do not exceed permissible
alcohol concentration levels.
DOE does not agree with commenters that the 0.02 percent alcohol
concentration standard is too rigid and not indicative of possible
impairment. On February 15, 1994, DOT operating agencies promulgated
alcohol testing regulations for the aviation, motor carrier, rail,
transit, and pipeline transportation industries. The common preamble
that DOT published for those rules discusses research and
recommendations regarding the effects of blood alcohol that have been
produced by expert bodies, including the National Highway
Transportation Safety Administration, the National Transportation
Safety Board, the National Academy of Sciences, and the Transportation
Research Board. Common Rule, Final Rules on Limitation of Alcohol Use
by Transportation Workers, 59 FR 7302, 7318-19 (Feb. 15, 1994). DOT
concluded from this body of knowledge that while impairment of
performance of safety-sensitive functions was clearly increased above
0.04 percent alcohol concentration, there was evidence of some
impairment at levels as low as 0.02, the lowest level that can be
reliably measured. Alcohol affects individuals differently and some
individuals are impaired by any blood alcohol. DOT, based on this
evidence, adopted a standard that requires removal of an employee from
a safety-sensitive position at any alcohol concentration of 0.02
percent or greater. The job tasks performed by individuals assigned
nuclear explosive duties, including protective force personnel, are
just as safety-sensitive as jobs performed by workers in the
transportation industries. Therefore, DOE retains the 0.02 standard in
the final rule.
In the final rule, DOE responds to the commenters' staffing
concerns by providing more flexibility for dealing with employees who
report for unscheduled work and test above 0.02 percent alcohol
concentration. As proposed, section 711.44(e) would provide that an
individual whose confirmatory BAT result is at or above 0.02 percent
shall not be allowed to perform nuclear explosive duties for a minimum
of 24 hours. In the final rule, DOE has renumbered proposed section
711.44(e) as section 711.44(f) and revised it to provide that in the
case of unscheduled work, an employee whose test result is at or above
0.02 percent will be given the opportunity--but will not be required--
to take another test when it is expected that the BAT would produce a
result below the 0.02 percent alcohol concentration level. The employee
then will be permitted to perform nuclear explosive duties if a result
below 0.02 percent is obtained. DOE believes this approach will
alleviate the problem envisioned by the commenters.
One commenter sought guidance on the identity and qualifications of
persons who conduct breath alcohol testing of PAP individuals. The
final rule specifies that alcohol tests are to be administered by a
certified technician using an evidential-grade breath analysis device
that conforms to National Highway Traffic Safety Administration model
specifications for devices approved for use at the 0.02/0.04 percent
concentration levels. DOE received comments recommending greater
restrictions on the persons who conduct alcohol testing, but the
commenter did not provide any evidence or factual support that would
warrant additional restrictions.
In the final rule, DOE has added a new section 711.44(g) to clarify
that PAP individuals whose jobs require commercial drivers licenses
continue to be subject to DOT regulations on misuse of alcohol. They
are subject to sanctions in regulations promulgated by the Federal
Highway Administration, but DOE will take disciplinary action against
such employees under its own authority.
[[Page 48065]]
Proposed section 711.45 sets forth requirements that apply to
maintenance of medical records. DOE received comments from the U.S.
Equal Employment Opportunity Commission (EEOC) on this section. At the
request of the EEOC, DOE has revised proposed section 711.45(a) to
clarify the long standing DOE practice that medical records must be
kept separate from other personnel records. DOE also has added language
to section 711.45(b), which was recommended by EEOC, to refer to the
possible application to DOE contractors of the Americans with
Disabilities Act and section 503 of the Rehabilitation Act, including
the confidentiality provisions in the Department of Labor's
implementing regulations. In addition, section 711.45(c)(3) provides
that psychological records must be kept separate from other medical
records.
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993).
Accordingly, this rulemaking has not been reviewed by the Office of
Information and Regulatory Affairs of the Office of Management and
Budget (OMB).
B. Review Under Executive Order 12612
Executive Order 12612, ``Federalism,'' 52 FR 41685 (October 30,
1987) requires that regulations, rules, legislation, and other policy
actions be reviewed for any substantial direct effect on States, on the
relationship between the National Government and the States, or in the
distribution of power and responsibilities among various levels of
government. If there are substantial effects, then the Executive Order
requires the preparation of a federalism assessment to be used in all
decisions involved in promulgating and implementing policy action. The
Department has analyzed this rulemaking in accordance with the
principles and criteria contained in Executive Order 12612, and has
determined there are no federalism implications that would warrant the
preparation of a federalism assessment. The rule published today will
apply to DOE and DOE contractor personnel employed at defense nuclear
facilities. It will not have a substantial direct effect on States, the
relationship between the States and Federal Government, or the
distribution of power and responsibilities among various levels of
government.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires
preparation of an initial regulatory flexibility analysis for every
rule which by law must be proposed for public comment, unless the
agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
Today's rule will affect a total of approximately 3,300 DOE and DOE
contractor employees working at Government-owned or leased facilities.
Only a small number of the employees work for a small entity. In
addition, the DOE is formalizing a program that has been in place at
DOE nuclear explosive facilities for over 30 years, so the economic
impact of this proposed rule would be negligible. DOE certified in the
notice of proposed rulemaking that the rule would not, if promulgated,
have a significant economic impact on a substantial number of small
entities. Public comment on this issue was invited, but none was
received. DOE affirms its certification that the rule will not have a
significant economic impact on a substantial number of small entities.
D. Review Under the National Environmental Policy Act
The final rule codifies and amends the PAP program, which has been
in existence pursuant to DOE directives for approximately 30 years, and
it relates to personnel qualifications that will have no impact on the
environment. Categorical exclusions in the Department's regulations
implementing the National Environmental Policy Act of 1969, 42 U.S.C.
4321 et seq., apply to this rulemaking. The applicable categorical
exclusions are A1 and A5 in Appendix A to Subpart D, 10 CFR part 1021.
The Department has therefore determined that neither an environmental
assessment nor an environmental impact statement is required for this
rulemaking.
E. Review Under the Paperwork Reduction Act
This rule does not contain a collection of information that
requires the approval of the OMB under the Paperwork Reduction Act, 44
U.S.C. 3501, et seq. OMB has defined the term ``information'' to
exclude certifications, consents, and acknowledgments that entail only
minimal burden. 5 CFR 1320.3(h)(1).
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this rule meets the relevant standards of Executive
Order 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq.,
requires a federal agency to perform a detailed assessment of the costs
and benefits of any rule imposing a federal mandate with costs to
state, local or tribal governments, or to the private sector, of $100
million or more. This final rule codifies existing procedures and
standards that relate to certification of DOE personnel and DOE
contractor personnel for nuclear explosive duties at DOE facilities.
The rule does not impose a federal mandate requiring preparation of an
assessment under the Unfunded Mandate Reform Act of 1995.
H. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress
promulgation of this final rule prior to its effective date. The report
will state that it has been determined that the rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
[[Page 48066]]
List of Subjects in 10 CFR Part 711
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Government contracts, Government employees, Health, Nuclear safety, and
Occupational safety and health.
Issued in Washington, DC on August 31, 1998.
Victor H. Reis,
Assistant Secretary for Defense Programs.
For the reasons set forth in the preamble, Chapter III of title 10
of the Code of Federal Regulations is amended by adding new Part 711 to
read as set forth below:
PART 711--PERSONNEL ASSURANCE PROGRAM (PAP)
Subpart A--PAP Certification/Recertification, Temporary Removal/
Reinstatement, and Revocation of PAP Certification
Sec.
711.1 Purpose.
711.2 Applicability.
711.3 Definitions.
711.4 General.
711.5 General requirements.
711.6 PAP certification process.
711.7 Maintenance of PAP personnel list.
711.8 PAP training requirements.
711.9 Supervisor reporting.
711.10 Individual reporting.
711.11 Immediate removal from nuclear explosive duties.
711.12 Action following removal from duties.
711.13 Appointment of a certification review hearing officer and
legal counsel.
711.14 Certification review hearing.
711.15 Hearing officer's report and recommendation.
711.16 Appeal of the operations office manager's final decision.
Subpart B--Medical Assessments for PAP Certification/Recertification
General Provisions
711.20 Applicability.
711.21 Purpose and scope.
Responsibilities and Authorities
711.30 Designated physician.
711.31 Designated psychologist.
711.32 Site Occupational Medical Director (SOMD).
711.33 Director, Office of Occupational Medicine and Medical
Surveillance.
711.34 Operations office managers; Director, Transportation
Safeguards Division.
Medical Assessment Process and Standards
711.40 Medical standards for certification.
711.41 Medical assessment process.
711.42 Medical assessment for drug abuse.
711.43 Evaluation of hallucinogen use.
711.44 Medical assessment for alcohol use disorder.
711.45 Maintenance of medical records.
Authority: 42 U.S.C. 2201(p), 7191.
Subpart A--PAP Certification/Recertification, Temporary Removal/
Reinstatement, and Revocation of PAP Certification
Sec. 711.1 Purpose.
The purpose of this part is to establish a Personnel Assurance
Program (PAP) in DOE. The PAP is a human reliability program designed
to ensure that individuals assigned to nuclear explosive duties do not
have emotional, mental, or physical incapacities that could result in a
threat to nuclear explosive safety. The PAP establishes the
requirements and responsibilities for screening, selecting, and
continuously evaluating employees assigned to or being considered for
assignment to nuclear explosive duties.
Sec. 711.2 Applicability.
(a) This part applies to DOE Headquarters and field elements and
DOE contractors that manage, oversee, or conduct nuclear explosive
operations and associated activities, and to DOE and DOE contractor
employees assigned to nuclear explosive duties.
(b) This part does 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.''
Sec. 711.3 Definitions.
The following definitions are used in this part:
Access means proximity to a nuclear explosive that affords a person
the opportunity to tamper with it or to cause it to detonate.
Alcohol use disorder means a maladaptive pattern in which a
person's intake of alcohol is great enough to damage or adversely
affect physical or mental health or personal, social, or occupational
function; or when alcohol has become a prerequisite to normal function.
Certification means the formal action the PAP certifying official
takes which permits an individual to be placed in the PAP and perform
PAP duties. This action is taken once it has been determined an
individual meets the requirements for certification under this part.
Contractor means the contractor and subcontractors at all tiers.
Designated physician means a licensed doctor of medicine or
osteopathy who has been nominated by the SOMD and, with the concurrence
of the Director, Office of Occupational Medicine and Medical
Surveillance, approved by the operations office manager, to provide
professional expertise in the area of occupational medicine as it
relates to the PAP.
Designated psychologist means a licensed Ph.D. or Psy.D. clinical
psychologist who has been nominated by the SOMD and, with the
concurrence of the Director, Office of Occupational Medicine and
Medical Surveillance, approved by the operations office manager, to
provide professional expertise in the area of psychological assessment
as it relates to the PAP.
Diagnostic and Statistical Manual for Mental Disorders means the
current version of the American Psychiatric Association's manual
containing definitions of psychiatric terms and diagnostic criteria of
mental disorders.
Director, Office of Occupational Medicine and Medical Surveillance,
means the chief occupational medical officer of the DOE with
responsibility for policy and quality assurance for DOE occupational
medical programs.
Drug abuse means use of an illegal drug or misuse of legal drugs.
Flashback means a transient, spontaneous, and often unpredictable
recurrence of aspects of a person's use of a hallucinogen that involves
dramatic alteration of emotional state, perception, sensation, and
behavior.
Hallucinogen means any hallucinogenic drug or substance that has
the potential to cause flashbacks.
Illegal drug means a controlled substance, as specified in
Schedules I through V of the Controlled Substances Act, 21 U.S.C. 811,
812. The term ``illegal drug'' does not apply to the use of a
controlled substance in accordance with the terms of a valid
prescription, or other uses authorized by Federal law.
Impaired or impairment means a decrease in functional capacity of a
worker caused by a physical, mental, emotional, substance abuse, or
behavioral disorder.
Job task analysis means a statement outlining the essential
functions of a job and the potential exposures and hazards of an
individual's specific job.
Medical assessment means an evaluation of a PAP individual's
present health status and health risk factors by means of: (1) a
medical history review; (2) the job task analysis; (3) a physical
examination; (4) appropriate laboratory tests and measurements; and (5)
appropriate psychological and psychiatric evaluations.
Medical Review Officer (MRO) means a licensed doctor of medicine or
osteopathy who has knowledge of illegal drug use and other substance
abuse disorders and has appropriate medical training to interpret drug
test results.
[[Page 48067]]
The MRO may also be the designated physician and/or SOMD.
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).
Nuclear explosive area means any area that contains a nuclear
explosive or collocated pit and main charge high explosive parts.
Nuclear explosive duties means work assignments that allow custody
of a nuclear explosive or access to a nuclear explosive device or area.
Occupational medical program means a DOE program that: (1) assists
in the maintenance, monitoring, protection, and promotion of employee
health through the skills of occupational medicine, psychology, and
nursing; and (2) maintains a close interface with allied health
disciplines, including industrial hygiene, health physics, and safety.
Operations office manager means the manager of a DOE operations
office.
PAP certifying official or certifying official means the operations
office manager or the manager's designee who certifies, recertifies, or
reviews the circumstances of an individual's removal from nuclear
explosive duties.
PAP individual means an individual being considered for assignment
or assigned to perform nuclear explosive duties.
PAP official means any DOE employee who is involved in the PAP as a
manager or supervisor or involved in the certification/recertification
process.
Recertification means the formal action the PAP certifying official
takes annually, not to exceed 12 months, which permits an individual to
remain in the PAP and perform PAP duties. This action is taken once it
has been determined an individual still meets the requirements of this
part.
Reinstatement means the action the PAP certifying official takes
once it has been determined an individual who has been temporarily
removed from the PAP meets the certification requirements of this part
and can be returned to the PAP and PAP duties.
Semi-structured interview means an interview by a designated
psychologist who has the latitude to vary the focus and content of the
questions depending upon the interviewee's responses.
Site Occupational Medical Director/SOMD means the physician
responsible for the overall direction and operation of the site
occupational medical program.
Sec. 711.4 General.
(a) PAP certification is required of each individual assigned to
nuclear explosive duties in addition to any other job qualification
requirements that may apply.
(b) Nothing in this part shall be construed as prohibiting
contractors from establishing stricter employment standards for
employees who are nominated to DOE for certification or recertification
in the PAP.
(c) The failure of an individual to be certified or recertified in
the PAP shall not, in itself, reflect on the individual's suitability
for assignment to other duties or, in itself, be a cause for loss of
pay or other benefits or other changes in employment status.
(d) Personnel management actions based on consideration of
technical competence and other job qualification requirements shall be
considered only if they are based on behavior that also affects an
individual's suitability for the PAP.
(e) Except for the functions in Sec. 711.12 (d), (e) and (h), an
operations office manager may delegate PAP functions to a deputy
manager, assistant manager, division director, and/or area office
manager.
Sec. 711.5 General requirements.
(a) Each PAP individual shall be certified in the PAP before being
assigned to nuclear explosive duties and shall be recertified annually,
not to exceed 12 months between recertifications.
(b) To be certified or recertified in the PAP, an individual shall:
(1) Have an active DOE Q access authorization based upon a
background investigation;
(2) Sign an acknowledgment and agreement to participate in the PAP
on a form provided by DOE;
(3) Be interviewed and briefed on the importance of the nuclear
explosive duty assignment and PAP objectives and requirements.
(4) Successfully complete an annual medical assessment for
certification and recertification in accordance with Subpart B of this
part;
(5) Not have used any hallucinogen in the preceding 5 years and
shall not have experienced a flashback resulting from the use of any
hallucinogen more than 5 years before applying for certification or
recertification;
(6) If a DOE employee, be tested for illegal drugs at least once
each calendar year in an unannounced and unpredictable manner under DOE
Order 3792.3, ``Drug-Free Federal Workplace Testing Implementation
Program,''and be subject to testing for cause or reasonable suspicion
or after an accident or an unsafe practice involving the individual
and;
(7) If a DOE contractor employee, be tested for illegal drugs at
least once each calendar year in an unannounced and unpredictable
manner under 10 CFR part 707, ``Workplace Substance Abuse Programs at
DOE Sites,'' and be subject to testing for cause or reasonable
suspicion or after an accident or an unsafe practice involving the
individual.
(c) If an individual in the PAP refuses to submit a urine sample
for illegal drug testing or attempts deception by substitution,
adulteration, or other means, DOE immediately shall remove the
individual from nuclear explosive duties.
(d) An individual will be denied PAP certification, or shall have
his or her certification revoked, immediately, if use of an illegal
drug is confirmed through drug testing, as provided in Sec. 711.42 of
Subpart B.
(e) An individual whose PAP certification is revoked for the use of
illegal drugs will be considered for reinstatement in the PAP if the
individual successfully completes an SOMD approved drug rehabilitation
program, as provided in Sec. 711.42 of Subpart B and a PAP position is
available for which the individual is qualified.
(f) If an individual chooses not to participate in the PAP, he or
she shall sign a refusal of consent form provided by DOE.
Sec. 711.6 PAP certification process.
(a) The PAP certifying official shall determine each PAP
individual's suitability for certification or recertification in the
PAP and review the circumstances concerning an individual's removal
from nuclear explosive duties and possible reinstatement.
(b) Operations office managers who exercise jurisdiction over PAP
certification shall issue instructions for implementing the PAP. At a
minimum, the instructions shall provide for:
(1) Conducting a supervisory interview of each PAP individual,
during which the supervisor shall determine the individual's
willingness to accept the requirements and conditions of the PAP;
(2) Ensuring that each PAP individual undergoes a medical
assessment under subpart B of this part;
(3) Ensuring that the personnel security file (PSF) of each PAP
individual is reviewed by a DOE employee trained to identify PAP
[[Page 48068]]
concerns before the individual is certified or recertified;
(4) Ensuring that other available personnel data or information
about each PAP individual is reviewed by an employee trained to
identify PAP concerns before the individual is certified or
recertified;
(5) Allowing the exchange of information about a PAP individual
among responsible DOE officials during the certification,
recertification, or certification review process. Any mental or
behavioral issues which could impact an individual's ability to perform
PAP duties may be provided to the SOMD, designated physician, and/or
designated psychologist who have been previously identified for receipt
of this information by the operations office manager or designee. In
rare instances when information from an employee's PSF may be relevant,
such information may be shared only with prior written approval of the
manager or his/her designee. The Director, Office of Security Affairs,
must be notified of the manager's decision to share PSF information, as
well as the specific information provided and a brief summary of the
circumstances. This notice should be provided as soon as practicable.
Contractor medical personnel will not be allowed to view the PSF.
Contractor medical personnel must not share any information obtained
from the PSF with anyone who is not a DOE PAP official;
(6) Requesting certification or recertification of a contractor
employee when the contractor has determined, on the basis of all
available information, that the individual is suitable for the PAP. The
contractor requesting certification or recertification shall, in
writing, assure the PAP certifying official that all PAP certification
requirements have been met;
(7) Addressing any requirement not met during the certification/
recertification process, and requiring a contractor to provide any
additional personal data or information in its possession that may have
a bearing on the certification/recertification of an individual;
(8) Documenting certification and recertification of each PAP
individual on a form provided by DOE;
(9) Developing a mechanism for co-workers, supervisors, and
managers to communicate concerns about a PAP individual's suitability
for nuclear explosive duties;
(10) Ensuring that PAP concerns are reported to an appropriate
official, as specified in Secs. 711.9 and 711.10, for timely
resolution;
(11) Providing that the processing of a request for certification
or recertification of an individual is terminated if the individual is
no longer being considered for assignment to nuclear explosive duties
or is no longer assigned to such duties. If, subsequently, the
individual is considered for assignment to nuclear explosive duties,
the certification or recertification process must be completely redone;
and
(12) Using recertification to return an individual whose
certification has exceeded 12 months, and thus expired, to the PAP,
once it has been determined an individual still meets the requirements
of this part.
Sec. 711.7 Maintenance of PAP personnel list.
Operations office managers who exercise jurisdiction over PAP
certification and recertification shall establish procedures for
developing and maintaining a current list of DOE and contractor
personnel certified in the PAP. The list is to be used for program
administration and is not an authorization for personnel to perform
nuclear explosive duties. The list shall be promptly updated and
verified on a quarterly basis under the supervision of the operations
office manager.
Sec. 711.8 PAP training requirements.
(a) Operations office managers shall ensure that each individual
who is assigned to nuclear explosive duties receives special training
in PAP objectives, policies, and requirements.
(b) Operations office managers shall ensure that DOE and contractor
supervisory personnel and PAP certifying officials receive training
that includes:
(1) A detailed explanation of nuclear explosive duties and nuclear
explosive safety;
(2) Instruction on PAP objectives, policies, and requirements;
(3) Instruction on the early identification of behavior that may
indicate a degradation in reliability or judgment; and
(4) Special emphasis on the importance of timely reporting of any
PAP concern to appropriate personnel.
(c) Operations office managers shall ensure that medical personnel
who perform medical assessments receive, before performing PAP
responsibilities, training that includes:
(1) A detailed explanation of nuclear explosive duties and nuclear
explosive safety;
(2) Instruction on PAP objectives, policies, and requirements;
(3) An orientation on nuclear explosive duties and the work
environment applicable to that of the PAP employee;
(4) Annual professional training on current issues and concerns
relative to psychological assessment; and
(5) Special emphasis on the importance of timely reporting of any
PAP concern to appropriate personnel.
(d) Operations office managers shall establish and maintain a
system for documenting the training received by PAP-certified
individuals, supervisors of PAP personnel, and medical personnel with
PAP-related duties.
Sec. 711.9 Supervisor reporting.
(a) Supervisors shall document and report to a PAP official and the
SOMD, if appropriate, any observed or reported behavior or condition of
an individual that causes the supervisor to have a reasonable belief
that the individual's ability to perform assigned tasks in a safe and
reliable manner may be impaired.
(b) Behavior and conditions that could indicate unsuitability for
the PAP include, but are not limited to, the following:
(1) Psychological or physical disorders that impair performance of
assigned duties;
(2) Conduct that warrants referral for a criminal investigation or
results in arrest or conviction;
(3) Indications of deceitful or delinquent behavior;
(4) Attempted or threatened destruction of property or life;
(5) Suicidal tendencies or attempted suicide;
(6) Use of illegal drugs or the abuse of legal drugs or other
substances;
(7) Alcohol use disorder;
(8) Recurring financial irresponsibility;
(9) Irresponsibility in performing assigned duties;
(10) Inability to deal with stress, or the appearance of being
under unusual stress;
(11) Failure to understand work directives, hostility or aggression
toward fellow workers or authority, uncontrolled anger, violation of
safety or security procedures, or repeated absenteeism; and
(12) Significant behavioral changes, moodiness, depression, or
other evidence of loss of emotional control.
Sec. 711.10 Individual reporting.
(a) An individual in the PAP shall report any observed or reported
behavior or condition of another PAP individual that could indicate the
individual's unsuitability for nuclear explosive duties, including the
behaviors and conditions listed in
[[Page 48069]]
Sec. 711.9, to a supervisor, the SOMD, or other PAP official.
(b) An individual in the PAP shall report any behavior or
condition, including any behavior or condition listed in Sec. 711.9,
that may affect his or her own suitability for nuclear explosive duties
to a supervisor, the SOMD, or other PAP official.
Sec. 711.11 Immediate removal from nuclear explosive duties.
(a) A supervisor who has a reasonable belief that an individual in
the PAP is not suitable for nuclear explosive duties shall immediately
remove that individual from those duties pending a determination of the
individual's suitability. The supervisor shall, at a minimum:
(1) Require the individual to stop performing nuclear explosive
duties;
(2) Take action to ensure the individual is denied access to
nuclear explosive areas; and
(3) Notify the individual, in writing, the reason for these
actions.
(b) A supervisor who removes an individual from nuclear explosive
duties shall notify the PAP certifying official of the action and the
reasons that led to the removal of the individual from nuclear
explosive duties as soon as possible, and shall forward this
information, in writing, to the PAP certifying official within 24 hours
from the time the individual is removed from duties.
(c) Immediate removal of an individual from nuclear explosive
duties is an interim, precautionary action and does not constitute a
determination that the individual is not fit for nuclear explosive
duties. Removal from nuclear explosive duties shall not, in itself, be
cause for loss of pay or other benefits or other changes in employment
status.
Sec. 711.12 Action following removal from duties.
(a) Temporary removal. If a PAP certifying official receives a
supervisor's written notice of the immediate removal of an individual
from nuclear explosive duties, the certifying official shall direct the
removal of the individual from PAP duties pending an evaluation and
determination regarding the individual's suitability for nuclear
explosive duties. The applicable DOE personnel security office shall be
notified if removal is based on a security concern.
(b) Evaluation. The PAP certifying official shall conduct an
evaluation of the circumstances or information that led the supervisor
to remove the individual from nuclear explosive duties. The PAP
certifying official shall prepare a written report of the evaluation
that includes the certifying official's determination regarding the
individual's suitability for continuing PAP certification.
(c) PAP certifying official's action. (1) If the PAP certifying
official determines that an individual who has been removed temporarily
from nuclear explosive duties continues to meet the requirements for
certification in the PAP, the certifying official shall:
(i) Notify the operations office manager of the determination; and
(ii) Notify the individual's supervisor of the determination and
direct that the individual be allowed to return to nuclear explosive
duties.
(2) If the PAP certifying official determines that an individual
who has been temporarily removed from PAP duties does not meet the
requirements for certification, the certifying official shall refer the
matter to the operations office manager for action. The certifying
official shall submit the evaluation report to the operations office
manager and a recommendation that the individual's PAP certification be
revoked.
(d) Operations office manager's initial decision. After receipt of
a PAP certifying official's evaluation report and recommendation for
revoking an individual's PAP certification, the operations office
manager shall take one of the following actions:
(1) Direct that the individual be reinstated in the PAP and, in
writing, explain the reasons and factual basis for the action;
(2) Direct the revocation of the individual's PAP certification
and, in writing, explain the reasons and factual basis for the
decision; or
(3) Direct continuation of the temporary removal pending completion
of specified actions (e.g., medical assessment, security evaluation,
treatment) to resolve the concerns about the individual's suitability
for the PAP.
(e) In the event of a revocation, pursuant to Sec. 711.12(d)(2), or
suspension pursuant to Sec. 711.12(d)(3), the operations office manager
shall provide the individual a copy of the PAP certifying official's
evaluation report. The manager may withhold such report, or portions
thereof, to the extent that he/she determines that the report, or
portions thereof, may be exempt from access by the individual under the
Privacy Act or the Freedom of Information Act.
(f) Reinstatement after completion of specified actions. An
individual directed by the operations office manager to take specified
actions to resolve PAP concerns shall be reevaluated by the certifying
official after those actions have been completed. After considering the
PAP certifying official's evaluation report and recommendation, the
operations office manager shall direct either:
(1) Reinstatement of the individual in the PAP; or
(2) Revocation of the individual's PAP certification.
(g) Notification of operations office manager's initial decision.
The operations office manager shall send by certified mail, return
receipt requested, a written decision, including rationale, to an
individual who is denied certification or recertification. The
operations office manager's decision shall be accompanied by
notification to the individual, in writing, of the procedures in
paragraph (g) of this section and Secs. 711.14--711.16 pertaining to
reconsideration or a hearing on the operation office manager's
decision.
(h) Request for reconsideration or certification review hearing. An
individual who receives notification of an operation office manager's
decision to deny or revoke his or her PAP certification may choose one
of the following options:
(1) Take no action;
(2) Submit a written request to the operations office manager for
reconsideration of the decision to deny or revoke certification. The
request shall include the individual's response to any information that
gave rise to a concern about the individual's suitability for nuclear
explosive duties. The statement shall be signed under oath or
affirmation before a notary public, and must be sent by certified mail
to the operations office manager within 20 working days after the
individual received notice of the operations office manager's decision;
or
(3) Submit a written request to the operations office manager for a
certification review hearing. The request for a hearing must be sent by
certified mail to the operations office manager within 20 working days
after the individual receives notice of the operations office manager's
decision.
(i) Operations office manager's decision after reconsideration or
hearing. (1) If an individual requests reconsideration by the
operations office manager but not a certification review hearing, the
operations office manager shall, within 20 working days after receipt
of the individual's request, send by certified mail, return receipt
requested, to the individual a final decision as to suitability based
upon the individual's response and other relevant
[[Page 48070]]
information available to the operations office manager.
(2) If an individual requests a certification review hearing, the
operations office manager shall decide the matter after receipt of the
certification review hearing officer's report and recommendation, as
provided in Sec. 711.15. The operations office manager shall, within 20
working days after receiving the hearing officer's report and
recommendation, send by certified mail, return receipt requested, the
operations office manager's final decision to the individual,
accompanied by a copy of the hearing officer's report and
recommendation, and the transcript of the certification review
proceedings.
Sec. 711.13 Appointment of a certification review hearing officer and
legal counsel.
(a) After receiving an individual's request for a certification
review hearing, the operations office manager shall promptly appoint a
certification review hearing officer. The hearing officer shall:
(1) Be a DOE attorney or a hearing official from the DOE Office of
Hearings and Appeals and have a DOE Q access authorization; and
(2) Have no prior involvement in the matter or be directly
supervised by any person who is involved in the matter.
(b) The operations office manager shall also appoint a DOE attorney
as counsel for DOE, who shall assist the hearing officer by:
(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 hearing, of the scheduled place, date, and hour where
the hearing will take place.
Sec. 711.14 Certification review hearing.
(a) The certification review hearing officer shall conduct the
proceedings in an orderly and impartial manner to protect the interests
of both the Government and the individual.
(b) An individual who requests a certification review hearing shall
have the right to appear personally before the hearing officer; to
present evidence in his or her own behalf, through witnesses or by
documents, or by both; and be accompanied and represented at the
hearing by counsel of the individual's choosing or any other person and
at the individual's own expense.
(c) In conducting the proceedings, the certification review hearing
officer shall:
(1) Receive all information relating to the individual's fitness
for PAP certification through witnesses or documentation;
(2) Ensure that the individual is permitted to offer information in
his or her behalf; to call, examine, and except as provided in
paragraph (c)(3) of this section, cross-examine witnesses and other
persons who have made written or oral statements, and to present and
examine documentary evidence;
(3) 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 security file 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 that 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 security file and the Assistant Secretary for
Defense Programs or designee for that particular purpose has
determined, after considering information furnished by the
investigative agency concerning the reliability of the person and the
accuracy of the statement, that --
(A) The statement appears to be reliable and material;
(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 due to some other good cause
as determined only by the Assistant Secretary for Defense Programs;
(4) Ensure that if the procedures in paragraph (c)(3) of this
section are used, the individual is given a description of the
information, which shall be as comprehensive and detailed as the
national security permits. In addition, if a statement is received
under paragraph (c)(3)(ii) of this section, the identity of the person
making the statement and the information to be considered shall be made
available to the individual. The hearing officer shall give appropriate
consideration to the fact that the individual did not have an
opportunity to cross-examine such person;
(5) Require the testimony of the individual and all witnesses be
given under oath or affirmation;
(6) Request that the Assistant Secretary for Defense Programs issue
subpoenas for witnesses to attend the hearing or for the production of
specific documents or other physical evidence; and
(7) Ensure that a transcript of the certification review
proceedings is made.
Sec. 711.15 Hearing officer's report and recommendation.
Not later than 30 working days after the conclusion of the hearing,
the certification review hearing officer shall forward written
findings, a supporting statement of reasons, and recommendation
regarding the individual's suitability for certification or
recertification in the PAP to the operations office manager. The
hearing officer's report and recommendation shall be accompanied by a
copy of the record of the proceedings.
Sec. 711.16 Appeal of the operations office manager's final decision.
(a) An individual who has been denied PAP certification or
recertification, or whose certification has been revoked, may appeal
the operations office manager's decision to the Assistant Secretary for
Defense Programs. The appeal must be sent to the Assistant Secretary
for Defense Programs, by certified mail, no later than 20 working days
after the individual receives the operations office manager's decision.
(b) An individual who appeals an operations office manager's
decision to the Assistant Secretary for Defense Programs must submit
the appeal and a written supporting statement to the Assistant
Secretary for Defense Programs through the operations office manager
and the Deputy Assistant Secretary for Military Application and
Stockpile Management. The individual must also submit:
(1) A copy of the operations office manager's final decision and
any related documentation; and
(2) If a certification review hearing was conducted, a copy of the
hearing officer's report and recommendation and the record of the
proceedings.
(c) Within 20 working days of the receipt of an individual's appeal
and supporting documents, the Assistant Secretary for Defense Programs
shall review all of the information and issue a written decision in the
matter. The decision of the Assistant Secretary for Defense Programs
shall be final for DOE.
(d) If an individual does not appeal to the Assistant Secretary for
Defense Programs within the time specified in paragraph (a) of this
section, the
[[Page 48071]]
operations office manager's decision shall be the final decision.
Subpart B--Medical Assessments for PAP Certification and
Recertification
General Provisions
Sec. 711.20 Applicability.
The purpose of this subpart is to establish standards and
procedures for conducting medical assessments of DOE and DOE contractor
employees in the PAP.
Sec. 711.21 Purpose and scope.
The standards and procedures set forth in this part are necessary
for DOE to:
(a) Identify the presence of any mental, emotional, physical, or
behavioral characteristics or conditions that present or are likely to
present an unacceptable impairment in judgment, reliability, or fitness
of an individual to perform nuclear explosive duties safely and
reliably;
(b) Facilitate the early diagnosis and treatment of disease or
impairment and to foster accommodation and rehabilitation of a disabled
individual with the intent of returning the individual to assigned
nuclear explosive duties;
(c) Determine what functions an employee may be able to perform and
to facilitate the proper placement of employees; and (d) Provide for
continuing monitoring of the health status of employees in order to
facilitate early detection and correction of adverse health effects,
trends, or patterns.
Responsibilities and Authorities
Sec. 711.30 Designated physician.
(a) The designated physician shall be qualified to provide
professional expertise in the area of occupational medicine as it
relates to the PAP. The designated physician may serve in other
capacities, including Medical Review Officer.
(b) The designated physician shall:
(1) Be a physician who is a graduate of an accredited school of
medicine or osteopathy;
(2) Have a valid, unrestricted state license to practice medicine
in the state where PAP medical assessments occur;
(3) Have met the applicable PAP training requirements; and (4) Be
eligible for DOE access authorization.
(c) The designated physician shall be responsible for the medical
assessments of PAP individuals, including determining which components
of the medical assessments may be performed by other qualified
personnel. Although a portion of the assessment may be performed by
another physician, physician's assistant, or nurse practitioner, the
designated physician remains responsible for:
(1) Supervising the evaluation process;
(2) Interpreting the results of evaluations;
(3) Documenting medical conditions that may disqualify an
individual from the PAP;
(4) Providing medical assessment information to the designated
psychologist to assist in determining psychological fitness;
(5) Determining, in conjunction with DOE, if appropriate, the
location and date of the next required medical assessment, thereby
establishing the period of certification; and (6) Signing a
recommendation as to the medical fitness of an individual for
certification or recertification.
(d) The designated physician shall immediately report to the SOMD
any of the following about himself or herself:
(1) Initiation of an adverse action by any state medical licensing
board or any other professional licensing board;
(2) Initiation of an adverse action by any federal regulatory board
since the last designation;
(3) The withdrawal of the privilege to practice by any institution;
(4) Being named a defendant in any criminal proceedings (felony or
misdemeanor) since the last designation;
(5) Being evaluated or treated for alcohol use disorder or drug
dependency or abuse since the last designation; or
(6) Occurrence of a physical or mental health condition since the
last designation that might affect his or her ability to perform
professional duties.
Sec. 711.31 Designated psychologist.
(a) The designated psychologist shall report to the SOMD and shall
determine the psychological fitness of an individual to participate in
the PAP. The results of this evaluation shall be provided only to the
designated physician or the SOMD.
(b) The designated psychologist shall:
(1) Hold a doctoral degree from a clinical psychology program that
includes a 1-year clinical internship approved by the American
Psychological Association or an equivalent program;
(2) Have accumulated a minimum of 3 years postdoctoral clinical
experience with a major emphasis in psychological assessment;
(3) Have a valid, unrestricted state license to practice clinical
psychology in the state where PAP medical assessments occur;
(4) Have met the applicable PAP training requirements; and
(5) Be eligible for DOE access authorization .
(c) The designated psychologist shall be responsible for the
performance of all psychological evaluations of PAP individuals, and
otherwise as directed by the SOMD. In addition, the designated
psychologist shall:
(1) Designate which components of the psychological evaluation may
be performed by other qualified personnel;
(2) Upon request of management, assess the psychological fitness of
personnel for PAP duties in specific work settings and recommend
referrals as indicated;
(3) Conduct and coordinate educational and training seminars,
workshops, and meetings to enhance PAP individual and supervisor
awareness of mental health issues;
(4) Establish personal workplace contact with supervisors and
workers to help them identify psychologically distressed PAP
individuals; and
(5) Make referrals for psychiatric, psychological, substance abuse,
personal or family problems, and monitor the progress of individuals so
referred.
(d) The designated psychologist shall immediately report to the
SOMD any of the following about himself or herself:
(1) Initiation of an adverse action by any state medical licensing
board or any other professional licensing board;
(2) Initiation of an adverse action by any federal regulatory board
since the last designation;
(3) The withdrawal of the privilege to practice by any institution;
(4) Being named a defendant in any criminal proceeding (felony or
misdemeanor) since the last designation;
(5) Being evaluated or treated for alcohol use disorder or drug
dependency or abuse since the last designation; or
(6) Occurrence of a physical or mental health condition that might
affect his or her ability to perform professional duties since the last
designation.
Sec. 711.32 Site Occupational Medical Director (SOMD).
(a) The SOMD shall nominate a physician to serve as the designated
physician and a clinical psychologist to serve as the designated
psychologist. The nominations shall be sent through the operations
office to the Director, Office of Occupational Medicine and Medical
Surveillance. Each nomination shall describe the nominee's relevant
[[Page 48072]]
training, experience, and licensure, and shall include a curriculum
vitae and a copy of the nominee's current state or district license.
(b) The SOMD shall submit a renomination report biennially through
the operations office manager to the Director, Office of Occupational
Medicine and Medical Surveillance. This report shall be submitted at
least 60 days before the second anniversary of the initial designation
or of the last redesignation, whichever applies. The report shall
include:
(1) A statement evaluating the performance of the designated
physician and designated psychologist during the previous designation
period;
(2) A summary of all PAP-relevant training, including postgraduate
education, that the designated physician and designated psychologist
has completed since the last designation; and
(3) A copy of the valid, unrestricted state or district license of
the designated physician and designated psychologist.
(c) The SOMD shall submit, annually, to the Director, Office of
Occupational Medicine and Medical Surveillance, through the operations
office manager, a written report summarizing PAP medical activity
during the previous year. The SOMD shall comply with any DOE directives
specifying the form or contents of the annual report.
(d) The SOMD shall investigate any reports of problems regarding a
designated physician or designated psychologist, and the SOMD may
suspend either official from PAP-related duties. If the SOMD suspends
either official, the SOMD shall notify the Director, Office of
Occupational Medicine and Medical Surveillance and the operations
office manager, and provide supporting documentation and reasons for
the action.
Sec. 711.33 Director, Office of Occupational Medicine and Medical
Surveillance.
The Director, Office of Occupational Medicine and Medical
Surveillance, shall:
(a) Develop policies, standards, and guidance related to the
medical aspects of the PAP, including the psychological testing
inventory to be used;
(b) Review the qualifications of designated physicians and
designated psychologists, and concur or nonconcur in their designations
by sending a statement to the responsible program office and the
operations office, with an informational copy to the SOMD;
(c) Provide technical assistance on medical aspects of the PAP to
all DOE elements and DOE contractors; and
(d) Concur or nonconcur with the medical bases of decisions
rendered on appeals of PAP certification decisions.
Sec. 711.34 Operations office managers; Director, Transportation
Safeguards Division.
Operations office managers and the Director, Transportation
Safeguards Division, shall approve, upon the nomination of the SOMD and
concurrence of the Director, Office of Occupational Medicine and
Medical Surveillance, physicians and psychologists to serve as
designated physicians and designated psychologists.
Medical Assessment Process and Standards
Sec. 711.40 Medical standards for certification.
To be certified in the PAP, an individual shall be free of any
mental, emotional, or physical condition or behavioral characteristics
or conditions that present or are likely to present an unacceptable
impairment in judgement, reliability, or fitness of an individual to
perform nuclear explosive duties safely and reliably. The designated
physician, with the assistance of the designated psychologist, shall
determine the existence or nature of any of the following:
(a) Physical or medical disabilities such as visual acuity,
defective color vision, impaired hearing, musculoskeletal deformities,
and neuromuscular impairment;
(b) Mental disorders or behavioral problems, including substance
use disorders, as defined in the Diagnostic and Statistical Manual of
Mental Disorders;
(c) Use of illegal drugs or the abuse of legal drugs or other
substances, as identified by self-reporting, or by medical or
psychological evaluation or testing;
(d) Alcohol use disorder;
(e) Threat of suicide, homicide, or physical harm; or
(f) Cardiovascular disease, endocrine disease, cerebrovascular or
other neurologic disease, or the use of drugs for the treatment of such
conditions that may adversely affect the judgment or ability of an
individual to perform assigned duties in a safe and reliable manner.
Sec. 711.41 Medical assessment process.
(a) The designated physician, under the supervision of the SOMD,
shall be responsible for the medical assessment of PAP individuals. In
carrying out this responsibility, the designated physician or the SOMD
shall integrate the medical evaluations, available drug testing
results, psychological evaluations, any psychiatric evaluations, and
any other relevant information to determine an individual's overall
medical qualification for assigned duties.
(b) Employers shall provide a job task analysis or detailed
statement of duties for each PAP individual to both the designated
physician and the designated psychologist before each medical
assessment and psychological evaluation. PAP medical assessments and
psychological evaluations shall not be performed if a job task analysis
or detailed statement of duties has not been provided.
(c) The designated physician shall consider a PAP individual's
fitness for nuclear explosive duties at the time of each medical
contact, including:
(1) Medical assessments for initial certification, annual
recertification, and evaluations for reinstatement following temporary
removal from the PAP;
(2) Intermediate evaluations, including job transfer evaluations,
evaluations upon self-referral, and referral by management;
(3) Routine medical contacts, including routine return-to-work
evaluations and occupational and nonoccupational health counseling
sessions; and
(4) A review of current, legal drug use.
(d) Psychological evaluations shall be conducted:
(1) For initial certification. This psychological evaluation
consists of a generally accepted, self-reporting psychological
inventory tool approved by the Director, Office of Occupational
Medicine and Medical Surveillance, and a semi-structured interview.
(2) For recertification. This psychological evaluation consists of
a semi-structured interview.
(3) Every third year. The medical assessment for recertification
shall include a generally accepted self-reporting psychological
inventory tool approved by the Director, Office of Occupational
Medicine and Medical Surveillance.
(4) Additional psychological or psychiatric evaluations may be
required by the SOMD when needed to resolve PAP concerns.
(e) Following absences requiring return-to-work evaluations under
applicable DOE directives, the designated physician, with assistance
from the designated psychologist, shall determine whether a
psychological evaluation is necessary.
(f)(1) Except as provided in paragraph (f)(2) of this section, the
designated physician shall forward the completed medical assessment of
a PAP individual
[[Page 48073]]
to the SOMD, who shall send a recommendation based on the assessment
simultaneously to the individual's PAP administrative organization and
to the PAP certifying official.
(2) If the designated physician determines that a currently
certified individual no longer meets the PAP standards, the designated
physician shall immediately, orally, inform the PAP certifying official
and the PAP individual's administrative organization, following up in
writing as appropriate.
(g) Only the designated physician, subject to informing the SOMD,
shall make a medical recommendation for return to work and work
accommodations for PAP individuals.
(h) The following documentation is required for routine use in the
PAP after treatment of an individual for any disqualifying condition:
(1) A summary of the diagnosis, treatment, current status, and
prognosis to be furnished to the designated physician;
(2) The medical opinion of the designated physician advising the
individual's supervisor on whether the individual is able to return to
work in either a PAP or non-PAP capacity; and
(3) Any periodic monitoring plan approved by the designated
physician, the designated psychologist, and the SOMD, that is used to
evaluate the reliability of the employee.
Sec. 711.42 Medical assessment for drug abuse.
(a) Except as otherwise provided by this section, a medical
assessment for illegal drug use by DOE employees shall be conducted
under DOE Order 3792.3, ``Drug-Free Federal Workplace Testing
Implementation Program,'' or any successor order issued by DOE.
(b) Except as otherwise provided by this section, a medical
assessment for illegal drug use by DOE contractor employees shall be
conducted under 10 CFR part 707, ``Workplace Substance Abuse Programs
at DOE Sites.''
(c) In each case of drug abuse, the SOMD, in consultation with the
designated 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.
(d) If an individual successfully completes an SOMD-approved drug
rehabilitation program, DOE may reinstate the individual in the PAP
based on the SOMD's follow-up evaluation and recommendation. The
individual reinstated will be subject to SOMD-directed unannounced
tests for illegal drugs and relevant counseling for 3 years.
Sec. 711.43 Evaluation for hallucinogen use.
If DOE determines that a PAP individual has used any hallucinogen,
the individual shall not be eligible for certification or
recertification unless:
(a) Five years have passed since the last use of the hallucinogen;
(b) A medical evaluation, including a psychological test, is
performed to determine that the individual is reliable; and
(c) The individual has a record of acceptable job performance and
observed behavior.
Sec. 711.44 Medical assessment for alcohol use disorder.
(a) If alcohol abuse is suspected, an individual shall be examined
for evidence of alcohol use disorder. If the examination produces
evidence of alcohol use disorder, additional evaluation shall be
conducted, which may include psychological evaluation.
(b) Alcohol consumption is prohibited within an 8-hour period
preceding scheduled work and during the performance of nuclear
explosive duties.
(c) Individuals in the PAP, including individuals who report for
unscheduled work, may be tested for cause or reasonable suspicion of
alcohol use or after an accident or an unsafe practice involving the
individual.
(d) 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 tasks assigned.
(e) Tests for alcohol must be administered by a certified Breath
Alcohol Technician using an evidential-grade breath analysis device
approved for use at the 0.02/0.04 cut-off levels that conforms to the
Department of Transportation's (DOT) National Highway Traffic Safety
Administration (NHTSA) model specifications (58 FR 48705, September 17,
1993), and the most recent ``Conforming Products List'' issued by NHTSA
which are available from the Office of Traffic Safety Programs,
Washington, DC.
(f) An individual whose confirmatory breath alcohol test result is
at or above an alcohol concentration of 0.02 percent shall not be
allowed to perform nuclear explosive duties until the individual's
alcohol concentration is below 0.02 percent using an evidential-grade
breath analysis device described in section 711.44(e).
(g) Individuals subject to alcohol testing under DOT regulations
shall be subject to the sanctions promulgated by the Federal Highway
Administration rule. Appropriate disciplinary action will be taken
under DOE's authority.
(h) Individuals refusing to submit to a breath alcohol test shall
be immediately removed from nuclear explosive duties.
(i) The SOMD, in conjunction with the designated psychologist,
shall evaluate each case of alcohol use disorder for evidence of
psychological impairment and provide the PAP certifying official a
recommendation as to the individual's reliability.
(j) 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.
Sec. 711.45 Maintenance of medical records.
(a) Medical records produced or used in the PAP certification
process shall be collected and maintained on separate forms and in
separate medical files, and be treated as a confidential medical
record.
(b) The medical records of PAP individuals shall be maintained in
accordance with the Privacy Act, 5 U.S.C. 552a and DOE implementing
regulations in 10 CFR Part 1008; the Department of Labor's regulations
on access to employee exposure and medical records, 29 CFR 1910.1020;
and applicable DOE directives. DOE contractors also may be subject to
Sec. 503 of the Rehabilitation Act, 29 U.S.C. 793, and its implementing
rules, including confidentiality provisions at 29 CFR 60-741.23(d).
(c) The psychological record of a PAP individual shall be
considered a component of the medical record. The psychological record
shall:
(1) Contain any clinical reports, test protocols and data, notes of
employee contacts and correspondence, and other information pertaining
to an individual's contact with a psychologist;
(2) Be stored in a secure location in the custody of the designated
psychologist;
(3) Be kept separate from other medical record documents, with
access limited to the SOMD, the designated physician, the designated
psychologist, or other persons who are authorized by law or regulation
to have access; and
(4) Be retained indefinitely.
(d) The records of alcohol and drug testing shall be maintained in
accordance with 42 CFR part 2, ``Confidentiality of Alcohol and Drug
Abuse Patient Records,'' and 10 CFR
[[Page 48074]]
part 707, ``Workplace Substance Abuse Programs at DOE Sites.''
[FR Doc. 98-23885 Filed 9-4-98; 8:45 am]
BILLING CODE 6450-01-P
