[Federal Register Volume 60, Number 79 (Tuesday, April 25, 1995)]
[Rules and Regulations]
[Pages 20366-20371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10157]
[[Page 20365]]
_______________________________________________________________________
Part VIII
Department of Energy
_______________________________________________________________________
10 CFR Part 710
_______________________________________________________________________
Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Significant Quantities of Special Nuclear
Material; Final Rule
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules
and Regulations
[[Page 20366]]
DEPARTMENT OF ENERGY
10 CFR Part 710
RIN 1992-AA13
Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Significant Quantities of Special Nuclear Material
AGENCY: Office of Safeguards and Security, Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is amending its regulations
regarding access to classified matter and special nuclear material
which establish the Personnel Security Assurance Program (PSAP). The
PSAP was created to assure the reliability of individuals in certain
positions, referred to as PSAP positions for purposes of this rule. The
Department now amends this rule to include references to the drug
testing protocols used in the PSAP and to reflect the Government-wide
requirements for a standard background investigation. This change will
reduce the scope of the background investigation for the PSAP, and
thereby reduce cost and intrusiveness.
EFFECTIVE DATE: May 25, 1995.
FOR FURTHER INFORMATION CONTACT: Lynn Gebrowsky, Personnel Security
Policy Branch, Office of Safeguards and Security, Office of Security
Affairs, Department of Energy, (301) 903-3200, or Stephen P. Smith,
Office of the Assistant General Counsel for General Law, Office of the
General Counsel, Department of Energy, (202) 586-8618.
SUPPLEMENTARY INFORMATION:
I. General
A proposed rule to amend 10 CFR part 710, subpart B, by the
addition of certain drug and alcohol testing provisions, was published
in the Federal Register on March 8, 1991 (56 FR 10075). Comments
received in response to that publication are discussed in this final
rule.
Four written comments were received on the proposed rule. Most of
the comments concerned the provision in the proposed rule for alcohol
testing in cases of occurrence or reasonable suspicion. This provision
has been removed from the final rule pending a government-wide decision
on the subject of alcohol testing. In consequence, none of the comments
received in reference to alcohol testing will be addressed at this
time.
The detailed drug testing protocols put forward in the proposed
rule have been removed as a consequence of the publication of 10 CFR
part 707, ``Workplace Substance Abuse Programs at DOE Sites,'' (57 FR
32652) which established those protocols for all drug testing conducted
on contractor populations at sites operated under the authority of the
Atomic Energy Act of 1954, as amended. The drug testing requirements
set out in 10 CFR part 707 serve as the drug testing element for
contractors in the PSAP. Drug testing procedures for Federal employees
in the PSAP are found in Departmental directives.
One commenter felt that the most recent body of case law in the
area of drug and alcohol testing for occurrence and reasonable
suspicion had not been examined carefully in its applicability to the
PSAP. DOE responds that it is difficult to anticipate the development
of the law in such a relatively new field as drug testing, but the
relevant case law has been adequately taken into account. The judicial
examination of the issues surrounding drug testing has increased
greatly over the past 5 years, stimulated by the growing realization of
the safety, security, and performance threats represented by employee
drug use. Further growth accompanied the issuance of Executive Order
12564 and the concomitant expansion of private sector testing programs.
The threshold issues of constitutionality, with particular
reference to the Fourth Amendment, have been thoroughly discussed by
the courts. The cases now generally have moved on to matters of detail
in the actual conduct of the tests, which have been determined to be
constitutionally permissible under the proper circumstances. Throughout
the time that this rule (and 10 CFR part 707, which now promulgates the
drug testing procedures) has been under development, DOE has been in
contact with other Federal agencies having a responsibility for
oversight of drug testing procedures. The Department is confident that
this rule, relying upon the provisions of 10 CFR part 707 and DOE
policies implementing Executive Order 12564, will bear scrutiny under
the presently existing case law.
That commenter also expressed uneasiness over the evaluation of
``applicants'' under the PSAP. No evaluation, other than that which
might be understood by drug testing, is addressed in this rule.
However, in the proposed rule of March 8, 1991, the issue was
considered and the phrase ``tentatively selected applicants'' employed
to narrow the requirement for evaluation from all applicants to those
selected for the job but not yet performing the duties of the job.
More specific and detailed comments are addressed below.
II. Comments Received and DOE Responses
A. Americans With Disabilities Act of 1990
One commenter stressed that any assessments of individuals under
the PSAP need to be consistent with the Americans with Disabilities Act
(ADA), which took effect July 26, 1992. Under this act, reasonable
accommodation must be afforded individuals with disabilities who are
``otherwise qualified'' for the job. An individual with a disability is
defined as one who has a physical or mental impairment that
substantially limits one or more major life activities, a record of
such impairment, or who is regarded as having such an impairment. In
order to be considered ``otherwise qualified,'' a person must be able
to meet all of a program's requirements in spite of his handicap.
Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979).
The overriding qualifications for a PSAP position are
trustworthiness, reliability and sound judgment (see subpart A of part
710). All evaluations under PSAP are directed toward that
determination. The U.S. Court of Appeals for the Second Circuit has
held that having poor judgment and exhibiting irresponsible behavior,
while it may disqualify an applicant from a job, is not such a
substantial limitation in a major life activity that it qualifies as a
handicap under the Rehabilitation Act. Daley v. Koch, 892 F.2d 212 (2d
Cir., 1989).
It is certainly possible for an individual with a disability,
either physical or mental, to hold a PSAP position, provided the
individual meets the requirements of the program. Current illegal drug
users and alcoholics who cannot safely perform their jobs are not
protected by the ADA.
B. Guidelines of the Department of Health and Human Services
It was suggested that the PSAP rule (and, by inference, the
Workplace Substance Abuse rule, which provides the drug testing
procedures for the PSAP) could not impose the ``Mandatory Guidelines
for Federal Workplace Drug Testing Programs,'' issued by the Department
of Health and Human Services (HHS), on contractors without further
clarification from the DOE. This concern resulted from an apparent
misinterpretation of references to the HHS Guidelines in the proposed
rule. Those references were specific and [[Page 20367]] limited. The
text in question is now covered by 10 CFR part 707; however, to respond
fully to the commenter, the following is provided:
In paragraph 710.59(e)(1) (superseded by Sec. 707.12(a) of 10 CFR
part 707) there was a requirement that laboratories conducting drug
testing for the PSAP use the cutoff levels in the HHS Guidelines for
determining whether a test is negative or positive. The paragraph
continued with the requirement that any laboratory utilized for PSAP
drug testing be certified by the Department of Health and Human
Services. Paragraph 710.59(e)(3) (superseded by Sec. 707.12(b)(2))
stated that the amount of urine collected in a specimen will be at
least 60 milliliters, in accordance with the HHS Guidelines. This
statement provided the rationale for the amount specified (i.e., it
reflected the widely used and accepted standard). Under 10 CFR part
707, the requirement for a specific volume is deleted and the site
collection person is directed to ascertain that a sufficient amount of
urine is collected for an initial test, a confirmatory test, and a
retest. Paragraph 710.59(f)(1) (superseded by Sec. 707.13(a)) indicated
that the gas chromatography/mass spectrometry method would be used in
confirmatory tests and directed the reader to certain paragraphs in the
HHS Guidelines for information on the procedure. Paragraph 710.59(f)(2)
(superseded by Sec. 707.13(b)) directed the medical review officer to
make any determinations of substance abuse in accordance with the
criteria provided in the Medical Review Officer Manual issued by HHS.
It was never intended that the HHS Guidelines be adopted in their
entirety by contractors under the PSAP. Only those sections of the
Mandatory Guidelines and the Medical Review Officer Manual referenced
in 10 CFR part 707 apply to the PSAP. An inadvertent reference was made
in Sec. 710.59(e)(3) to a ``permanent record book,'' which reflects an
HHS requirement. This reference has been deleted, as the paragraph was
superseded by the provisions of 10 CFR part 707, which replaces the
requirement for a permanent record book with the use of a multi-part
specimen chain of custody form.
C. Drug Testing
Two commenters took exception to the requirement in paragraph
710.59(b) that employees who have not undergone a random drug test for
a given year at the time of that year's medical examination be tested
for the use of illegal drugs during the medical examination. It was
observed that, under the procedures used in certain facilities, this
would prevent the test from being unannounced. The intent of the
statement was to offer a method of assuring that all individuals in the
PSAP were tested annually. There are any number of mechanisms through
which the testing can be conducted on an unannounced, random basis,
with every individual in the population being tested at least annually.
The sentence is therefore removed and the precise mechanism of testing
administration left to the contractor, with the stipulation that any
method used result in random, unannounced, annual tests.
D. Training
One commenter felt that the supervisor training referred to in the
preamble to the proposed rule implied that training would be
incorporated as a requirement in the final rule without due opportunity
for public comment. This was never intended. The reference to training
was solely to provide information to contractors on the assistance
available through the DOE for implementation of the PSAP. This final
rule contains no training requirements.
III. Changes From Proposed Rule
In addition to the removal of alcohol testing requirements and
those drug testing protocols now found in 10 CFR part 707, there has
been a revision in the security requirements, based on recent personnel
security research findings and on comments from within the Department
of Energy. Specifically, in Sec. 710.60(c), the investigative
requirement is now a single-scope background investigation, the
standard used by the Department for the granting of a Q access
authorization. In keeping with that standard, Sec. 710.60(e) now
requires a periodic reinvestigation in accordance with those procedures
used to maintain a Q access authorization. Paragraph 710.60(d) is
changed to eliminate the annual national agency check (NAC) and to
clarify that the yearly update of the SF-86 is for Part II of that form
only. The strength of the PSAP is in its continuing evaluation of
covered individuals, and while its investigative elements are
important, it is felt that there is little benefit gained by a 15-year
scope investigation and annual NAC, relative to the cost incurred.
In Sec. 710.54, Definitions, the definition for ``drug
certification'' has been deleted, as this administrative instrument is
not a form or procedure of the PSAP.
A non-substantive change has been made to Secs. 710.50(a) and
710.55, regarding the positions covered by the Personnel Security
Assurance Program. The second category of positions in each of those
paragraphs has been revised to refer to positions ``which afford
unescorted access to the control areas of a nuclear material production
reactor,'' instead of positions ``identified as nuclear material
production reactor operators.'' This change makes the second category
of covered positions grammatically parallel with the first category.
The Department does not intend any change in the scope of the second
category of covered positions.
IV. Procedural Requirements
A. 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, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
B. Regulatory Flexibility Act
In accordance with section 605(b) of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., DOE finds that sections 603 and 604 of the
said Act do not apply to this rule because, if promulgated, the rule
will affect only DOE contractors operating Government-owned or leased
sites and their subcontractors, and will not have significant economic
impact on a substantial number of small entities.
C. National Environmental Policy Act
There is no impact on the environment under today's rule.
Accordingly, preparation of neither an environmental assessment nor an
environmental impact statement is required.
D. Paperwork Reduction Act
Today's rule has been reviewed in accordance with the Paperwork
Reduction Act and has been determined to contain no collection of
information requirements other than those already approved under OMB
Control Number 1910-1800.
E. Federalism Effects
The principal impact of today's rule will be on government
contractors and their employees. The rule is unlikely to have a
substantial direct effect on the States, the relationship between the
States and Federal government, or the distribution of power and
responsibilities among various levels of government. No Federalism
assessment under E.O. 12612 is required. [[Page 20368]]
F. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations. These
requirements, set forth in sections 2(a) and 2(b)(2), include
eliminating drafting errors and needless ambiguity, drafting the
regulations to minimize litigation, providing clear and certain legal
standards for affected legal conduct, and promoting simplification and
burden reduction. Agencies are also instructed to make every reasonable
effort to ensure that regulations define key terms and are clear on
such matters as exhaustion of administrative remedies and preemption.
The Department certified that today's regulatory action meets the
requirements of sections 2(a) and 2(b)(2) of Executive Order 12778.
List of Subjects in 10 CFR Part 710
Administrative practice and procedure, classified information,
government contracts, government employees, nuclear materials.
Kenneth E. Baker,
Acting Director, Office of Nonproliferation and National Security.
For the reasons set forth in the preamble, part 710 of title 10 of
the Code of Federal Regulations is amended as set forth below.
PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR
ACCESS TO CLASSIFIED MATTER OR SIGNIFICANT QUANTITIES OF SPECIAL
NUCLEAR MATERIAL
1. The authority citation for part 710 is revised to read as
follows:
Authority: Sec. 145, 68 Stat. 942 (42 U.S.C. 2165) and sec. 161,
68 Stat. 948 (42 U.S.C. 2201); E.O. 10450, 3 CFR 1949-1953 Comp., p.
936, as amended; E.O. 10865, 3 CFR 1959-1963 Comp., p. 398, as
amended, 3 CFR Chap. IV; sec. 104(c), 38 Stat. 1237 (42 U.S.C.
5814); sec. 105(a), 88 Stat. 1238 (42 U.S.C. 5815); secs. 641, 644,
646, 91 Stat. 598, 599 (42 U.S.C. 7251, 7254, and 7256).
2. Subpart B of part 710 is revised to read as set forth below:
Subpart B--Criteria and Procedure for Establishment of the
Personnel Security Assurance Program and Determinations of an
Individual's Eligibility for Access to a Personnel Security
Assurance Program Position
General Provisions
710.50 Purpose.
710.51 Scope.
710.52 References.
710.53 Policy.
710.54 Definitions.
Procedures
710.55 Designation of PSAP positions.
710.56 Program process.
710.57 Supervisory review.
710.58 Medical assessment.
710.59 Management evaluation.
710.60 DOE security review and clearance determination.
Subpart B--Criteria and Procedures for Establishment of the
Personnel Security Assurance Program and Determinations of an
Individual's Eligibility for Access to a Personnel Security
Assurance Program Position
General Provisions
Sec. 710.50 Purpose.
(a) This subpart establishes the policies and procedures for
implementing the Department of Energy (DOE) Personnel Security
Assurance Program (PSAP) for individuals in positions:
(1) Which afford direct access to or have direct responsibility for
transportation or protection of Category I quantities of special
nuclear materials (SNM);
(2) Which afford unescorted access to the control areas of a
nuclear material production reactor; or
(3) With the potential for causing unacceptable damage to national
security.
(b) The DOE Personnel Security Assurance Program is designed to
establish the procedures for DOE and DOE contractors to utilize in the
selection and continuing evaluation of individuals for assignment to
positions described by paragraph (a) of this section. Individuals
selected for assignment to such positions must be granted access
authorization in accordance with the procedures and requirements set
forth in subparts A and B of this part.
Sec. 710.51 Scope.
The criteria and procedures establishing the Personnel Security
Assurance Program shall apply to:
(a) Those employees of, and applicants for employment with, DOE who
either occupy or make application for PSAP positions, as described by
paragraph (a) of Sec. 710.50.
(b) Those employees of, and applicants for employment with,
contractors and agents of the DOE who either occupy or make application
for PSAP positions, as described by paragraph (a) of Sec. 710.50.
Sec. 710.52 References.
(a) Atomic Energy Act of 1954, as amended, section 11,
``Definitions''; section 141, ``Policy''; section 143, ``Department of
Defense Participation''; section 145, ``Restrictions''; section 161 b.,
``General Provisions''; which provide statutory authority for
establishing and implementing a DOE security program for controlling
access to Restricted Data and special nuclear material. Copies of
selected provisions appear as appendix A to subpart A of this part.
(b) Executive Orders 10450, April 29, 1953, ``Security Requirements
for Government Employment,'' 10865, February 20, 1960, ``Safeguarding
Classified Information Within Industry,'' and 12564, September 15,
1986, ``Drug-Free Federal Workplace,'' all as amended.
(c) 10 CFR part 707, ``Workplace Substance Abuse Programs at DOE
Sites,'' which requires DOE contractors to establish workplace
substance abuse prevention programs, including urine drug testing for
individuals who occupy sensitive positions such as those requiring a
PSAP access authorization.
(d) Implementing directives (DOE Orders) which provide Departmental
guidance on the PSAP and related areas are available from the U.S.
Department of Energy, Washington, DC 20585, Attention: Directives
Distribution.
Sec. 710.53 Policy.
The protection of certain of the DOE's security interests, with the
potential, if compromised, of causing unacceptable damage to the
national security requires the implementation of a program designed to
assure that individuals occupying positions affording access to certain
material, facilities, and programs meet the highest standards of
reliability. This objective is accomplished under this subpart through
a system of continuous evaluation which identifies those individuals
whose judgment may be impaired by physical and/or emotional disorders,
substance abuse, or the use of alcohol habitually to excess. This
process will reduce the risk resulting from the potential threat
represented by such employees to an acceptable level. The determination
to grant initially and to continue annually the access authorization to
a PSAP position is based upon a DOE security assessment of any
information of security concern developed in the course of an initial
and annual security review process.
Sec. 710.54 Definitions.
As used in this part:
Contractor means the contractor and subcontractors at all tiers.
Direct access means access to Category I quantities of SNM which
would permit an individual to remove, divert, or misuse that material
in spite [[Page 20369]] of any controls that have been established to
prevent such unauthorized actions.
Illegal drugs means a controlled substance included in Schedules I,
II, III, IV, or V, as defined by 21 U.S.C. 802(6), the possession of
which is unlawful under chapter 13 of that title. The term ``illegal
drugs'' does not apply to the use of a controlled substance in
accordance with the terms of a valid prescription, or other uses
authorized by law.
Management official means an individual designated by the DOE or a
DOE contractor, as appropriate, who has programmatic responsibility for
PSAP positions.
Occurrence means any event or incident that is a deviation from the
planned or expected behavior or course of events in connection with any
Department of Energy or Department of Energy-controlled operation, if
the deviation has environmental, public health and safety, or national
security protection significance. Incidents having such significance
include the following, or incidents of a similar nature:
(1) Injury or fatality to any person involving actions of a
Department of Energy contractor employee.
(2) Involvement of nuclear explosives under Department of Energy
jurisdiction which results in an explosion, fire, the spread of
radioactive material, personal injury or death, or significant damage
to property.
(3) Accidental release of pollutants which results or could result
in a significant effect on the public or environment.
(4) Accidental release of radioactive material above regulatory
limits.
PSAP Approving Official means a senior DOE official with direct
personnel security responsibilities appointed by an operations office
manager to review all relevant information, including DOE F 5631.35,
``PSAP Management, Medical, and Security Report'' as part of the DOE
security review process, and who is responsible for granting or
continuing the PSAP access authorization, or determining that an
individual be processed under the provisions of subpart A of this part.
PSAP position means a position that affords direct access to or has
direct responsibility for transportation or protection of Category I
quantities of SNM, affords unescorted access to nuclear material
production reactor control areas, or with the potential to cause
unacceptable damage to national security.
Reasonable suspicion means a suspicion based on an articulable
belief that an employee uses illegal drugs, drawn from particularized
facts and reasonable inferences from those facts, as detailed further
in part 707 of this chapter.
Security concern means the presence of information, regarding an
individual applying for or holding a PSAP position, that may be
considered derogatory under the criteria in subpart A of this part.
Selecting official means the management official responsible for
making the final employment decision regarding an individual seeking a
PSAP position.
Site occupational Medical Director means a physician responsible
for the overall direction and operation of the occupational medical
program at a particular site.
Supervisor means an individual who has direct oversight and
responsibility for a person holding a PSAP position.
Unacceptable damage means an incident that could result in a
nuclear explosive detonation, a major environmental release from a
nuclear material production reactor, or an interruption of nuclear
weapons production with a significant impact on national security.
Procedures
Sec. 710.55 Designation of PSAP positions.
PSAP positions shall be designated by the cognizant Operations
Office Manager in accordance with the following criteria:
(a) Positions that afford direct access to Category I quantities of
SNM or have direct responsibility for transportation or protection of
Category I quantities of SNM.
(b) Positions that afford direct access to the control areas of a
nuclear material production reactor.
(c) Positions with the potential for causing unacceptable damage to
national security which are not included in paragraph (a) or (b) of
this section, and are designated by the Director, Office of Safeguards
and Security, DOE.
Sec. 710.56 Program process.
(a) Individuals selected for assignment to PSAP positions must be
granted a PSAP access authorization in accordance with the procedures
and requirements set forth in this subpart.
(b) The PSAP involves four components: Supervisory review: Medical
assessment; management evaluation; and security determination. A DOE
determination to grant initially and to continue annually an
individual's PSAP access authorization is based upon a DOE security
assessment of any information of security concern developed in the
course of the supervisory review, medical assessment, management
evaluation, and security review.
(c) DOE shall make its decision as to a PSAP access authorization
in accordance with the criteria in subpart A, Sec. 710.8 of this part.
Sec. 710.57 Supervisory review.
(a) The supervisory review shall be performed on all applicants
tentatively selected for PSAP positions, transferees to PSAP positions,
individuals occupying PSAP positions but not yet holding a PSAP access
authorization, and PSAP-cleared employees.
(b) The initial SF-86, OMB Control No. 3206.007, ``Questionnaire
for Sensitive Positions'' of an applicant tentatively selected for a
PSAP position and an annual update of the ``Questionnaire for Sensitive
Positions,'' Part II, of each incumbent in a PSAP position shall be
completed and forwarded to the appropriate PSAP Approving Official.
(c) Before being selected for a PSAP position, any tentatively
selected applicant must undergo a pre-employment suitability
determination as defined by 48 CFR 970.2201. For DOE employees, this
pre-employment check must comply with the requirements established by
the Office of Personnel Management in part 731 of title 5, Code of
Federal Regulations. For contractor employees, this pre-employment
check must comply with the requirements established by the DOE in
section 970.2201(b)(1)(ii) of title 48.
(d) Each applicant tentatively selected for a PSAP position and
each individual occupying a PSAP position but not a yet holding a PSAP
access authorization shall execute the appropriate PSAP releases,
acknowledgements, and waivers. The request for a PSAP access
authorization shall not be further processed until these documents are
completed. Failure of an individual, occupying a PSAP position but not
yet holding a PSAP access authorization, to complete these documents
may prevent DOE from reaching an affirmative finding required for
granting or continuing PSAP access authorization. An effort shall be
made to reassign that individual to a position not requiring a PSAP
access authorization. For purposes of this section and all sections of
this rule that relate to reassignment from PSAP duties, any Federal
employee will be immediately removed from PSAP duties. The affected
employee's supervisor may reassign the [[Page 20370]] employee or
realign the employee's current duties. If these actions are not
feasible, the supervisor must contact the appropriate servicing
personnel office for guidance.
(e) Applicants tentatively selected for PSAP positions and each
individual occupying a PSAP position, but not yet holding a PSAP access
authorization, shall undergo testing for the use of illegal drugs in
accordance with the provisions of the DOE policies implementing
Executive Order 12564, or Part 707 of this chapter, which establish
workplace substance abuse programs for DOE and contractor employees
respectively. A determination of the use of illegal drugs, based on a
drug test, shall result in termination of consideration for the PSAP
access authorization. An employee who has been determined to have used
illegal drugs, based on a drug test, shall be immediately reassigned
from the PSAP duties and processed under the provisions of Subpart A of
this part.
(f) The supervisor (or selecting official) shall report any
security concerns, resulting from his or her review, to the appropriate
management official.
(g) Annual review. Each PSAP-cleared employee shall have an annual
PSAP review conducted by the supervisor during which the supervisor
shall evaluate information relevant to security. The supervisor shall
report any security concerns, resulting from his or her review, to the
appropriate management official.
(h) Recognition of security concerns and unusual Conduct. In order
to facilitate early recognition of an individual who represents a
possible security concern, individuals who, in the judgment of the
responsible supervisor, exhibit unusual conduct shall be referred to
the site Occupational Medical Director, who may arrange for the PSAP-
cleared employee to be examined by the appropriate medical staff.
Information indicating a possible security concern shall be reported
immediately to the appropriate management official and PSAP Approving
Official.
(i) Temporary reassignment to non-PSAP duties. Where an individual
has demonstrated a possible security concern or a condition which may
temporarily affect his or her reliability, the individual, with the
recommendation of the site Occupational Medical Director or the PSAP
Approving Official, may be temporarily reassigned to non-PSAP duties.
In the event that a PSAP-cleared employee is temporarily reassigned to
non-PSAP duties, the supervisor, jointly with the site Occupational
Medical Director and/or the PSAP Approving Official, as appropriate,
may determine the temporary restrictions to be placed on the employee.
The PSAP Approving Official shall be notified immediately upon the
decision to temporarily reassign the employee to non-PSAP duties and
the reason for such action, and upon the decision to reinstate such
employee. If the reason for the temporary reassignment was based upon a
security concern, the PSAP Approving Official must approve the request
for reinstatement.
Sec. 710.58 Medical assessment.
(a) The medical examination. The purpose of the PSAP medical
examination is to ensure that an applicant tentatively selected for, or
incumbent in, a PSAP position does not represent a security concern or
have a condition which may prevent the individual from performing PSAP
duties in a reliable and safe manner. The examination shall include an
evaluation to determine the presence of any physical or mental
condition that causes or may cause a significant defect in the judgment
or reliability of the individual, including that which may result from
the use of illegal drugs or the use of alcohol habitually to excess.
(b) When performed. The medical assessment is performed initially
upon applicants tentatively selected for PSAP positions and employees
occupying PSAP positions who have not yet received a PSAP access
authorization. The medical assessment shall be performed annually, or
more often as may be required by the site Occupational Medical
Director, for PSAP-cleared employees.
(c) Contents of medical assessment. The medical assessment shall
include: A comprehensive medical examination; an examination for use of
alcohol habitually to excess; a psychological assessment and/or
psychiatric evaluation as provided for in any applicable DOE medical
standards, and as permitted by Federal regulations; and an examination
for the cause of any reported unusual conduct.
(d) Examination for use of alcohol habitually to excess. The use of
alcohol habitually to excess represents a potential threat to national
security and is inconsistent with access to a PSAP position.
Accordingly, the medical assessment shall include:
(1) Diagnosis. Employees in, or applicants tentatively selected
for, a PSAP position shall be evaluated for the use of alcohol
habitually to excess. Those employees diagnosed currently to use
alcohol habitually to excess shall be temporarily reassigned to non-
PSAP duties and the PSAP Approving Official shall be notified
immediately.
(2) Rehabilitation. Individuals reinstated to PSAP duties following
treatment leading to rehabilitation from the use of alcohol habitually
to excess shall be required to undergo evaluation as prescribed by the
site Occupational Medical Director to ensure continued rehabilitation.
Such evaluation shall be consistent with appropriate Departmental
substance abuse programs.
(e) Examination for the cause of reported unusual conduct. Upon
referral of a PSAP-cleared employee by a supervisor for observed
unusual conduct, the site Occupational Medical Director may arrange for
the employee to be examined by appropriate specialists.
(f) Report of occupational Medical Director. Upon completion of the
medical assessment, the site Occupational Medical Director shall report
any security concerns resulting from the medical assessment to the
appropriate management official.
(g) Temporary restrictions on a PSAP position. In the event that a
condition or circumstance develops that may affect the judgment or
reliability of a PSAP-cleared employee, the site Occupational Medical
Director may recommend restrictions. The site Occupational Medical
Director shall report these restrictions immediately, in writing, to
the appropriate management official who shall immediately notify the
appropriate PSAP Approving Official. Removal of restrictions requires
notification in writing to both the management official and the PSAP
Approving Official by the site Occupational Medical Director.
(h) Sick leave from a PSAP position. PSAP-cleared employees who
have been on sick leave for five or more consecutive work days are
required to report in person to the site Occupational Medical Director
before being allowed to return to normal duties. The site Occupational
Medical Director shall provide a recommendation to the appropriate
management official regarding the employee's return to work. A PSAP-
cleared employee may in certain circumstances also be required to
report to the site Occupational Medical Director for written
recommendation to return to normal duties after any period of sick
leave.
Sec. 710.59 Management evaluation.
(a) Evaluation components. A management evaluation based upon a
careful review of the results of the [[Page 20371]] supervisory review,
medical assessment, and drug testing of an individual in, or an
applicant tentatively selected for, a PSAP position is required before
that individual can be considered for an initial granting or the
continuance of a PSAP access authorization. The appropriate manager of
an organization having PSAP positions (management official) shall
evaluate the information in these reports and forward his or her
recommendation, including any security concern, to the PSAP Approving
Official.
(b) Drug testing component. Drug testing for the use of illegal
drugs, as required by the PSAP, shall be established to test all
individuals in, or applicants tentatively selected for, PSAP positions.
Testing shall be conducted in accordance with the DOE policies
implementing Executive Order 12564, or part 707 of this chapter, which
establish workplace substance abuse programs for DOE and contractor
employees respectively. The program shall include unannounced annual
drug testing and testing for occurrence or reasonable suspicion for all
PSAP-cleared individuals. A PSAP-cleared individual who has been
determined to have used illegal drugs based on a drug test shall be
reassigned immediately to non-PSAP duties, and the PSAP Approving
Official shall be notified immediately.
(c) Occurrence or reasonable suspicion testing component. When a
PSAP-cleared employee is involved in or associated with an occurrence
requiring notification to the DOE or whose behavior creates the basis
for a reasonable suspicion of substance abuse, the employee shall be
tested for the use of illegal drugs. Drug testing shall be conducted in
accordance with the provisions of the DOE policies implementing
Executive Order 12564, or part 707 of this chapter, which establish
workplace substance abuse programs for DOE and contractor employees
respectively.
(d) Rehabilitation. Individuals reinstated to PSAP duties following
treatment leading to rehabilitation from the use of illegal drugs shall
be required to undergo evaluation and testing as prescribed in DOE
drug-free workplace and substance abuse policies and by the site
Occupational Medical Director or other designated official, as
appropriate, in order to ensure continued rehabilitation.
(e) Corporate policy. Nothing in this subpart is intended to
interfere with or prohibit a contractor of the Department from
conducting medical and other evaluations, including testing for the use
of illegal drugs as a matter of corporate policy, so long as such
policy is at least as effective as the requirements and procedures of
this subpart.
Sec. 710.60 DOE security review and clearance determination.
(a) When performed. The final component of the PSAP process is a
security review and clearance determination performed by the PSAP
Approving Official upon receipt of the management evaluation and
recommendation.
(b) The criteria. The PSAP access authorization and adjudication
shall be conducted in accordance with the criteria and procedures
contained in relevant sections of this part.
(c) Review for initial PSAP access authorization. An initial PSAP
access authorization requires the applicant or employee to have a DOE Q
access authorization, based upon a background investigation. The
adjudication and determination for a PSAP access authorization shall be
based upon a review of security information, including the results of
the background investigation and the information provided by management
and medical sources.
(d) Annual PSAP access authorization continuance. Once an employee
has received the PSAP access authorization, he or she shall thereafter
undergo an annual security evaluation by the PSAP Approving Official.
The evaluation shall include a review of the individual's DOE personnel
security file, and an updated SF-86, OMB Control No. 3206-007,
``Questionnaire for Sensitive Positions,'' Part II. The determination
to continue the PSAP access authorization shall be based upon a review
and any necessary adjudication of the information resulting from the
annual security evaluation, and the information provided by management
and medical sources, in accordance with the criteria and procedures
contained in relevant sections of this part.
(e) Periodic reinvestigation. The PSAP-cleared employee shall
undergo periodic reinvestigation as required to maintain a Q access
authorization. The determination to continue the PSAP access
authorization shall be based upon a review of security information,
including the results of the limited background investigation and the
information provided by management and medical sources.
(f) Processing under 10 CFR part 710, subpart A. Any matters of
security concern raised to the attention of the PSAP Approving
Official, such as confirmed use of illegal drugs or use of alcohol
habitually to excess, shall be evaluated in accordance with the
criteria under subpart A, Sec. 710.8 of this part. Any administrative
review under the PSAP shall be conducted in accordance with the
provisions and procedures in subpart A of this part.
[FR Doc. 95-10157 Filed 4-24-95; 8:45 am]
BILLING CODE 6450-01-P