[Federal Register Volume 61, Number 197 (Wednesday, October 9, 1996)]
[Notices]
[Pages 53018-53023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25881]



[[Page 53017]]


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Part IV





Department of Energy





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Personnel Assurance Program; Human Reliability Policies; Notice

  Federal Register / Vol. 61, No. 197 / Wednesday, October 9, 1996 / 
Notices  

[[Page 53018]]



DEPARTMENT OF ENERGY


Office of Defense Programs; Personnel Assurance Program; Human 
Reliability Policies

AGENCY: Department of Energy.

ACTION: Notice of interim Personnel Assurance Program procedures and 
standards with opportunity to comment.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) today publishes interim 
Personnel Assurance Program (PAP) procedures and standards for DOE 
personnel and contractor personnel who are assigned nuclear explosive 
duties at DOE facilities. The PAP is a systematic program, previously 
established by internal DOE Directive, to prevent accidental or 
unauthorized detonation of nuclear explosives as a result of assignment 
of nuclear explosives duties to employees who have or develop emotional 
and mental instability or physical incapacity.

DATES: The interim certification procedures and standards are effective 
October 9, 1996. Comments are due on or before November 8, 1996.

ADDRESSES: Comments (7 copies) may be submitted to Thomas Stepan, 
USDOE, DP-21, 1000 Independence Avenue, S.W., Washington, D.C. 20585. 
Copies of the written comments and any other docket material received 
may be read and copied at the DOE Freedom of Information Reading Room, 
U.S. Department of Energy, Room 1E-190, 1000 Independence Avenue, S.W., 
Washington, D.C., telephone (202) 586-6020 between the hours of 8:30 
a.m. and 4:00 p.m. Monday through Friday except Federal holidays. The 
docket file material will be filed under ``DP-RM-96-100.''

FOR FURTHER INFORMATION CONTACT: Thomas Stepan, USDOE, DP-21, 1000 
Independence Avenue, S.W., Washington, D.C. 20585, (301) 903-3463. For 
information concerning submission of written comments, contact Andi 
Kasarsky, (202) 586-3012.

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

    Pursuant to the Atomic Energy Act of 1954 (Act), DOE owns defense 
nuclear facilities in various locations in the United States which are 
operated by management and operating contractors with DOE supervision. 
These facilities are involved in researching, testing, producing, 
disassembling, and transporting of nuclear explosives which, when mated 
with Department of Defense-provided delivery systems, become nuclear 
weapons systems.
    Pursuant to section 161 of the Act, 42 U.S.C. 2201(b), (i)(3), and 
(p), DOE and its predecessor agencies--the Atomic Energy Commission 
(AEC) and the Energy Research and Development Administration (ERDA)--
have used some version of PAP to certify, actively monitor, and 
periodically recertify personnel as suitable to perform nuclear 
explosive duties in a safe and reliable manner. PAP provides for 
disqualification of persons from performance of nuclear explosive 
duties who fail to meet PAP requirements for emotional and mental 
stability and physical capability. In DOE's internal administrative 
directives, DOE Order 452.2, formerly DOE Order 5610.11, the term 
``Nuclear Explosive Duty'' has been defined to include DOE or 
contractor employees who have custody of or ``access'' to a nuclear 
explosive. ``Access'' has been defined to mean: ``The proximity to a 
nuclear explosive that affords a person the opportunity to tamper with 
it or to cause a detonation.''
    By active monitoring, PAP continuously applies to all PAP-certified 
employees. The certification of such employees is subject to immediate 
review in light of facts and circumstances about an employee or an 
employee's behavior indicating a reliability risk that warrants 
protective action to neutralize a nuclear explosive hazard by having an 
individual immediately removed from nuclear explosive duties. Immediate 
removal does not constitute a determination that the individual is 
unsuitable for nuclear explosive duties, but indicates that the 
individual's suitability is in question.
    The PAP procedures and standards are legally binding on contractors 
under the terms and conditions of their contractual agreements which 
require them to comply with applicable DOE directives. They also apply 
to contractor personnel and could be the basis for the contractor to 
take some action affecting an employee's employment rights.
    In 1992, the Independent Guard Association of Nevada, Local No. 1, 
representing PAP-certifiable civilian security guards employed by 
Wackenhut Security, Inc., at DOE's Nevada Test Site, brought suit 
challenging DOE Order 5610.11 which established the Department's 
nuclear explosive and weapons safety program, including the PAP. The 
DOE Order was challenged for failure to promulgate it through public 
notice and comment in compliance with the Administrative Procedure Act, 
5 U.S.C. 553. In particular, the union challenged the requirement for 
disqualification from PAP of employees who had used hallucinogens at 
any time in the past. DOE defended its administrative directive under 
the military functions, statement of policy, and the agency practice 
and procedure exceptions from notice and comment rulemaking. Id.
    The United States District Court for the District of Nevada 
initially ruled that the military functions exception applied. 
Subsequently, however, in Independent Guard Association of Nevada, 
Local No.1 v. O'Leary, 57 F.3d 766 (C.A.9 1995), the United States 
Court of Appeals for the Ninth Circuit reversed the district court's 
judgment. The Court of Appeals held that although DOE performs military 
functions with regard to nuclear explosives, the military functions 
exception did not apply to the promulgation of DOE Order 5610.11 
insofar as DOE sought to make the requirements section (containing the 
PAP procedures and standards) binding on civilian support contractor 
personnel performing duties that did not directly involve a military 
function. On remand in Independent Guard Association of Nevada v. 
O'Leary, No. CV-S-92-204-LDG-LRL (D. Nev. June 14, 1996), the district 
court concluded that none of the other categorical exceptions from 
notice and comment rulemaking on which DOE relied were applicable. The 
district court's judgment enjoined DOE from enforcing the 
``requirements section'' (section 2) of DOE Order 5610.11, Chapter I, 
against contractor employees pending notice and comment rulemaking 
under 5 U.S.C. 553.
    Consistent with the rulings in the Independent Guard litigation, 
DOE intends to issue a notice of proposed rulemaking under 5 U.S.C. 553 
in the fall of 1996 to codify the PAP employee certification procedures 
and standards, as well as other PAP-related policies, such as the 
standards for the site office medical director. Subject to 
consideration of the comments that are submitted in response to that 
notice, DOE intends to issue a final rule establishing certification 
procedures and standards applicable to the DOE and contractor employees 
performing duties that involve nuclear explosive-related functions. 
DOE's goal is to publish a final rule by the end of 1996 or early 1997.
    DOE today is publishing interim PAP procedures and standards 
pursuant to the good cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3) 
and under the authority of section 161 of the Act, 42 U.S.C. 2201. DOE 
finds that certification, recertification, active monitoring of 
personnel assigned nuclear explosive duties, and provisions for the 
removal of individuals from such duties pending suitability 
determinations are necessary to mitigate

[[Page 53019]]

the risk of accidental or unauthorized detonation of a nuclear 
explosive. Absence of PAP procedures and standards with regard to 
employees assigned nuclear explosive duties during the period necessary 
to complete notice and comment rulemaking would create an intolerable 
occupational and public safety risk. Accordingly, DOE concludes that it 
would be impracticable and contrary to the public interest to provide 
prior notice or a 30-day delay of the effective date for these interim 
procedures and standards. Although the interim PAP procedures and 
standards published today will be effective immediately under the good 
cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3), DOE invites and will 
consider comments on the interim procedures and standards.

II. Description and Basis for Interim Procedures and Standards

    The program elements of certification, periodic recertification, 
and spot physical or psychological evaluation for cause are based on 
DOE's experience, as well as the experience of the DOE's predecessor 
agencies for over 30 years. Both the AEC and ERDA had internal 
provisions for PAP, and DOE has had internal administrative directives 
setting forth PAP policies.
    Today's interim rule contains several modifications of the PAP as 
set forth in DOE directives. These modifications include: (1) A 
requirement for an individual to sign a form documenting ``refusal of 
consent'' if the individual chooses not to participate in the PAP; (2) 
flexibility in selecting and designating a psychological inventory 
evaluation tool as a substitute for the specific designation of the 
Minnesota Multi-Phasic Personality Inventory; (3) a requirement for a 
more flexible ``semi-structured'' interview, which is a substitute for 
the prior requirement for a ``structured'' interview; (4) the addition 
of a psychological evaluation in every third year, as part of an 
individual's annual recertification; (5) clarification of requirements 
for random drug testing, and (6) the addition of evaluation 
requirements for individuals who have used hallucinogenic drugs during 
the preceding five years.
    This part of the Supplementary Information discusses the meaning 
of, and basis for, those provisions of the interim certification 
procedures and standards that require explanation. It does not discuss 
provisions that are largely self-explanatory.
    Section 2 sets forth definitions. The definition of ``illegal 
drug'' lists the drugs that are set forth in ``Mandatory Guidelines for 
Federal Workplace Testing Programs'' issued by the Department of Health 
and Human Services, 53 FR 11970 (April 11, 1988). The definitions of 
``access,'' ``custody,'' ``nuclear explosive,'' ``nuclear explosive 
area,'' and ``pit'' were developed in consultation with a variety of 
interested stakeholders and subject matter experts.
    Section 11 of the interim procedures and standards identifies both 
the medical assessment requirements and the actions DOE may take based 
on medical evaluations. Paragraph (a) of section 11 summarizes the 
purpose of medical assessments and provides that such an assessment 
consists of physical examination and psychological evaluation for 
certification and periodic recertification. Paragraph (a) also 
indicates that such an assessment may be required to evaluate an 
employee for possible drug or alcohol abuse.
    Paragraph (b) presents more details about the medical assessments 
for the purpose of initial certification and periodic recertification. 
It refers to the use of a ``generally accepted, self-reporting 
psychological inventory tool'' together with a ``semi-structured 
interview,'' both of which are required initially. Also, the semi-
structured interview is part of the annual medical evaluation for 
recertification, while the psychological inventory tool is required 
every third year as part of the medical evaluation for recertification. 
The Minnesota Multi-Phasic Personality Inventory is an example of a 
psychological inventory tool. A ``semi-structured interview'' involves 
a series of questions by a clinical psychologist who has latitude to 
vary the focus and content of questions as a function of what the 
personality inventory or interviewee responses indicates should be 
probed.
    Paragraph (c) deals with the policies applicable to detecting and 
acting with regard to positive indications of drug abuse. Paragraph 
(c)(2) cross references 10 CFR part 707 which provides DOE's general 
policy to promote drug free workplaces, and applies to DOE contractors 
and subcontractors performing work at DOE owned or controlled sites. 
However, paragraph (c) adds some requirements to those in part 707.
    Paragraph (c) states a special policy for hallucinogenic drug use. 
The hallucinogens in question are listed in a definition of the term 
``hallucinogenic drug'' which appears in section 2. The policy provides 
that hallucinogenic drug use more than five years earlier is not, in 
itself, an adequate basis for denying certification or recertification. 
The five-year rule reflects a period of time that should elapse, as a 
protective practice, to minimize the likelihood of flashbacks. 
``Flashback'' is the term used to describe a transient, spontaneous 
recurrence of certain aspects of a person's hallucinogenic drug 
experience. Flashbacks typically have all the qualities of the original 
experience, and they are strongly felt. Because flashbacks are sudden, 
often unpredictable, largely involuntary, dramatic alterations of 
emotional state, perception, sensation, and behavior, an accident would 
likely result if a flashback were to occur during the performance of a 
hazardous task. Flashbacks may occur within a few days after drug use, 
or they may occur a few weeks, months, or even years later.
    An individual who used hallucinogenic drugs more than five years 
earlier will be considered for nuclear explosive duties. However, 
paragraph (c)(6) further provides that an individual who has used 
hallucinogenic drugs must have an acceptable job record and observed 
behavior; not be susceptible to flashbacks resulting from 
hallucinogenic drug use; and must undergo a medical evaluation to 
determine the individual's reliability.
    Paragraph (d) deals with medical assessments for alcohol abuse. It 
specifies the blood alcohol concentration that warrants enforcement 
action. Based on the practices of the Federal Aviation Administration 
with regard to airplane pilots, DOE has adopted the policy of 
prohibiting alcohol consumption within an eight hour period preceding 
nuclear explosive duties and does not permit an individual to perform 
nuclear explosive duties for a minimum of 24 hours in the event a 
confirmatory breath alcohol test result is at or above 0.02 percent. 
(Reference 14 CFR 91.17(a)(1); 49 CFR 382.505(b)). Removal from nuclear 
explosive duties due to results of a confirmatory breath alcohol test 
could lead to revocation of PAP certification, but there is provision 
for reinstatement following completion of an approved alcohol treatment 
program.

    Issued in Washington, DC, on October 2, 1996.
Victor H. Reis,
Assistant Secretary for Defense Programs.

Nuclear Explosive Safety Interim Certification Procedures and Standards 
for the DOE Personnel Assurance Program

1. General

    These interim procedures and standards apply to all Department of 
Energy (DOE) personnel or contractor personnel who are assigned nuclear 
explosive duties. The Personnel

[[Page 53020]]

Assurance Program (PAP) is a human reliability program designed to 
ensure that individuals assigned to nuclear explosive duties do not 
have or develop emotional, mental, or physical incapacities that could 
result in the accidental or unauthorized detonation of a nuclear 
explosive. In general:
    (a) PAP certification is required for assignment to nuclear 
explosive duties, and, in addition, the individual must meet all other 
applicable job qualification requirements;
    (b) Failure of an individual to be certified or recertified for 
assignment to nuclear explosive duties shall not, in itself, reflect on 
the individual's suitability for assignment to other duties and shall 
not, in itself, be a cause for loss of pay or other benefits or other 
changes in employment status;
    (c) Personnel management actions based on the consideration of 
technical competence and other job qualification requirements shall not 
affect the qualification for the PAP;
    (d) Except for the functions in section 8(b), managers of 
Operations Offices may delegate PAP functions to the deputy managers, 
assistant managers, division directors, and/or area office managers; 
and
    (e) These interim procedures and standards do not apply to 
responses to unplanned events (e.g., Accident Response Group 
activities), which are addressed in DOE 5530-series Orders and DOE 
Order 151.1, ``Comprehensive Emergency Management System.''

2. Definitions

    (a) ``Access'' means the proximity to a nuclear explosive that 
affords a person the opportunity to tamper with it or to cause a 
detonation.
    (b) ``Custody'' means responsibility for control of and access to 
nuclear explosives.
    (c) ``Hallucinogenic drug'' means D-lysergic acid diethylamide 
(LSD), mescaline (peyote cactus), methoxylated amphetamines, or 
psilocybin (Psilocybin fungus).
    (d) ``Illegal drug'' means cocaine, marijuana, opiates, 
amphetamines, or phencyclidine.
    (e) ``Nuclear explosive'' means an assembly containing fissionable 
and/or fusionable materials and main charge high explosive parts or 
propellants capable of producing a nuclear detonation (e.g., a nuclear 
weapon or test device).
    (f) ``Nuclear explosive area'' means any area that contains nuclear 
explosive or collocated pit and main charge high explosive parts.
    (g) ``Nuclear explosive duty'' means work assignments that allow 
custody of a nuclear explosive device or access to a nuclear explosive 
device or area.
    (h) ``PAP certifying official'' means the DOE Operations Office 
manager or the manager's delegate, unless the Secretary of Energy 
delegates the certification function to another individual. The 
certification function shall not be delegated to a level lower than 
area office manager.
    (i) ``Pit'' means a fissile component, or a set of fissile 
components, designed to fit in the central cavity of an implosion 
system and which if placed therein will create a nuclear explosive.
    (j) ``SOMD'' means the Site Occupational Medical Director.

3. Requirements

    Prior to being assigned to nuclear explosive duties, personnel 
shall be certified in the PAP by a PAP certifying official and be 
recertified annually, not to exceed 12 months between recertifications. 
To be certified, an individual must:
    (a) Have an active DOE Q access authorization;
    (b) Sign an acknowledgment and agreement to participate in the PAP 
on a form for certification and recertification provided by DOE;
    (c) Complete a medical assessment for certification and 
recertification as required by the SOMD in compliance with section 11 
of these interim certification procedures and standards; and
    (d) Be interviewed and briefed on the importance of the nuclear 
explosive duty assignment, PAP requirements, and the nature and 
objectives of the PAP. If an individual chooses to not participate in 
the PAP, he or she shall sign a form provided by DOE documenting that 
refusal.

4. PAP Certification Process

    The PAP Certifying Official determines certification or 
recertification and reviews circumstances concerning an individual's 
decertification from nuclear explosive duties and possible 
recertification. Managers of Operations Offices who exercise 
jurisdiction over PAP certification shall issue instructions for 
implementing the PAP. As a minimum, the instructions shall provide for:
    (a) Conducting a supervisory interview of each individual, during 
which the supervisor shall determine the individual's willingness to 
accept the requirements and conditions of the PAP;
    (b) Ensuring that individuals undergo the medical assessment 
required by section 11;
    (c) Ensuring that the personnel security file has been reviewed for 
PAP concerns;
    (d) Ensuring that other available personnel data has been reviewed 
for PAP concerns;
    (e) Allowing the exchange of information concerning a PAP 
individual among responsible DOE or DOE contractor officials during the 
certification, recertification, or decertification process;
    (f) Requesting DOE certification or recertification of contractor 
personnel when the contractor has determined, on the basis of all 
information available, that the individual is suitable. The contractor 
requesting certification or recertification shall assure the PAP 
certifying official that all PAP certification requirements have been 
met;
    (g) Addressing any requirement not met during the recertification 
process. The contractor shall provide any personal data that may have a 
bearing on the individual's recertification;
    (h) Documenting PAP certification/recertification on a form 
provided by DOE;
    (i) Developing a mechanism for co-workers, supervisors, and 
managers to communicate concerns regarding an individual's suitability 
to perform nuclear explosive duties; the instructions shall ensure that 
these concerns are reported to the appropriate official, as specified 
in sections 5 and 6, for timely resolution; and
    (j) Ensuring that if an individual is no longer being considered 
for assignment to nuclear explosive duties or is no longer assigned to 
such duties, any processing of a decision with respect to the 
individual's certification will be terminated. If, at a later date, the 
same individual is again being considered for assignment to nuclear 
explosive duties, processing of the individual's certification shall be 
completely redone.

5. Supervisor Responsibilities

    Supervisory personnel are responsible for observing PAP-certified 
individuals and reporting and documenting behavior that would cause a 
reasonable belief that the individual's ability to perform assigned 
tasks in a safe, secure and reliable manner may be impaired. An 
individual whose PAP suitability is in question shall be immediately 
removed from nuclear explosive duties, as provided in section 7. 
Behavior that could indicate unsuitability for the PAP, regardless of 
how the knowledge was obtained or where the incident occurred, shall be 
reported immediately to the SOMD and/or other PAP official

[[Page 53021]]

for evaluation. Examples of such behavior include the following:
    (a) Psychological or physical disorders that impair performance of 
assigned duties;
    (b) Illegal conduct, arrest, or conviction;
    (c) Indications of deceitful or delinquent behavior;
    (d) An attempt or implied threat to destroy property or life;
    (e) Suicidal tendencies or attempted suicide;
    (f) Use of illegal drugs, the abuse of alcohol, or the abuse of 
legal drugs;
    (g) Recurring financial irresponsibility;
    (h) Irresponsibility in performing assigned duties;
    (i) Inability to deal with stress, or the appearance of being under 
unusual stress;
    (j) Evidence of failure to understand work directives, hostility or 
aggression toward fellow workers or authority, uncontrolled anger, 
willful violation of safety or security procedures, or repeated 
absenteeism; and
    (k) Significant behavioral changes, moodiness, depression, or other 
evidence of loss of emotional control.

6. Individual Responsibilities

    (a) Individuals in the PAP are responsible for reporting any 
behavior of other PAP personnel that could indicate unsuitability for 
nuclear explosive duties, including the types of behavior listed in 
section 5, to a supervisor, the SOMD, or a PAP official.
    (b) Individuals who are in the PAP are responsible for reporting 
any condition that may affect their own suitability for nuclear 
explosive duties to a supervisor, to the SOMD, or to a PAP official.

7. Immediate Removal From Nuclear Explosive Duties

    (a) An individual whose PAP suitability is in question shall be 
immediately removed from nuclear explosive duties. Immediate removal 
from nuclear explosive duties requires, as a minimum, that:
    (1) The individual ceases performance of nuclear explosive duties;
    (2) The individual shall be denied access to nuclear explosive 
areas; and
    (3) The circumstances that led to the removal of the individual 
from nuclear explosive duties shall be documented.
    (b) Immediate removal from nuclear explosive duties does not 
constitute a determination that the individual is unsuitable for 
nuclear explosive duties. It only means that the individual's 
suitability is in question.
    (c) Immediate removal action will not, in itself, be cause for loss 
of pay or other benefits or other changes in employment status.

8. Removal From PAP

    (a) When the DOE PAP certifying official receives official written 
notification that an individual has been removed from nuclear explosive 
duties and the reasons for such removal, the individual shall be 
temporarily removed from PAP.
    (b) The PAP certifying official shall conduct and document an 
evaluation of the circumstances of the temporary removal. The 
evaluation shall include the PAP certifying official's determination 
regarding the individual's suitability for continuing PAP certification 
and appropriate recommendations.
    (1) If the certifying official determines that continuing PAP 
certification is appropriate, the Operations Office manager shall be 
notified and the individual reinstated in the PAP. The individual may 
resume nuclear explosive duties.
    (2) If the certifying official determines that continuing PAP 
certification is inappropriate, the Operations Office manager shall be 
notified and provided with the PAP certifying official's evaluation and 
recommendations.
    (c) The operations office manager, after receiving the evaluation 
from the PAP certifying official that an individual is not suitable for 
continuing PAP certification, shall take one of the following actions:
    (1) Direct that the individual be reinstated in the PAP and 
document the basis for reinstatement.
    (2) Direct that action be initiated to revoke the individual's PAP 
certification, in accordance with Section 12, and document the basis 
for the action; or
    (3) Direct that appropriate actions be taken to resolve PAP 
concerns (e.g., medical assessment, security evaluation, 
rehabilitation); based on the results of these actions, the PAP 
certifying official will provide a written recommendation to the 
operations office manager, who shall take action (1) or (2) above, as 
appropriate.

9. List of PAP-Certified Personnel

    Managers of operations offices who grant PAP certifications shall 
establish procedures for developing and maintaining a current list of 
DOE and DOE contractor personnel certified in the PAP. The list will be 
used for PAP program administration; it is not an authorization for 
personnel to perform nuclear explosive duties. The list shall be 
promptly updated and verified on a quarterly basis.

10. PAP Training Requirements

    Managers of Operations Offices shall ensure a program is developed 
and maintained to:
    (a) Provide special training in the nature and objectives of the 
PAP to all individuals with nuclear explosive duties;
    (b) Provide special training to medical personnel performing 
medical assessments for PAP certification and recertification; the 
medical training program shall:
    (1) Explain nuclear explosive duties and nuclear explosive safety;
    (2) Explain the objectives, purposes, policies, and requirements of 
the PAP;
    (3) Include an orientation visit to nuclear explosive areas; and
    (4) Emphasize the importance of timely reporting of any PAP concern 
to appropriate personnel;
    (c) Provide supervisory-level PAP training to DOE and DOE 
contractor supervisors of PAP individuals and to DOE PAP certifying 
officials; and the supervisory training program shall:
    (1) Explain nuclear explosive duties and nuclear explosive safety;
    (2) Explain the objectives, purposes, policies, and requirements of 
the PAP;
    (3) Include training on the early identification of behavior 
(including attitude, job performance, use of illegal drugs, abuse of 
alcohol, or the abuse of legal drugs) that indicates a degradation in 
reliability or judgment; and
    (4) Emphasize the importance of timely reporting of any PAP concern 
to appropriate personnel;
    (d) Establish and maintain PAP training records for supervisors of 
PAP personnel, PAP personnel, and medical personnel.

11. Medical Assessments

    (a) The purpose of medical assessments is to ensure that an 
individual does not have a condition that may prevent performance of 
nuclear explosive duties in a safe and reliable manner. Medical 
assessments consist of physical examinations and psychological 
evaluations for PAP certification and recertification. In addition, 
individuals in the PAP are subject to evaluation for drug and alcohol 
abuse.
    (b) A medical assessment for PAP certification and recertification 
shall include:
    (1) A comprehensive physical examination;
    (2) A psychological evaluation by the clinical psychologist 
designated by the SOMD, with concurrence from the DOE Office of 
Occupational Medicine:
    (i) For the initial certification, the psychological evaluation 
consists of a

[[Page 53022]]

generally accepted, self-reporting psychological inventory tool 
approved by the Director of the Office of Occupation Medicine, and a 
semi-structured interview;
    (ii) For recertification, the psychological evaluation consists of 
a semi-structured interview;
    (iii) Every third year, the medical evaluation for recertification 
shall include a generally accepted self-reporting psychological 
inventory tool approved by the Director of the Office of Occupational 
Medicine; and
    (iv) Additional psychological evaluations may be required by the 
SOMD when necessary to resolve PAP concerns.
    (c) The policies applicable to a medical assessment in order to 
evaluate for drug abuse are as follows.
    (1) Except as otherwise provided by this paragraph, a medical 
assessment for Federal employees shall be conducted under DOE 3792.3, 
``Drug-Free Federal Workplace Testing Implementation Program'';
    (2) Except as otherwise provided by this paragraph, a medical 
assessment for contractor employees shall be conducted under 10 CFR 
part 707;
    (3) For any individual in the PAP, there shall be a test for 
illegal drugs at least once during every 12 months in an unannounced 
and unpredictable manner, and if warranted, for cause or reasonable 
suspicion.
    (4) If, in a medical assessment, an individual refuses to submit a 
urine sample or attempts deception by substitution, adulteration or 
other means, then DOE immediately shall remove the individual from 
nuclear explosive duties.
    (5) Confirmation of use of illegal drugs through drug testing shall 
result in revocation of PAP certification.
    (6) When DOE suspects use of a hallucinogenic drug, the Department 
will review the circumstances, and for reasonable suspicion or cause 
may test an individual for hallucinogenic drug use. If DOE determines 
that an individual has used any hallucinogenic drug, then the 
individual shall not be eligible for PAP certification or 
recertification unless:
    (i) Five years has passed since the last use of the hallucinogenic 
drug;
    (ii) The individual has a record of acceptable job performance and 
observed behavior;
    (iii) The individual is not susceptible to flashbacks resulting 
from hallucinogenic drug use; and
    (iv) A medical evaluation is performed to determine reliability.
    (7) In each case of drug abuse, the SOMD, in consultation with the 
clinical psychologist, shall evaluate the individual for evidence of 
psychological impairment and make a recommendation to the PAP 
certifying official as to the individual's reliability.
    (8) After successfully completing an SOMD-approved drug 
rehabilitation program, and subject to SOMD-directed unannounced tests 
for illegal drugs and relevant counseling for three years, DOE may 
reinstate an individual in the PAP based on the SOMD's follow-up 
evaluation and recommendation.
    (d) The policies applicable to a medical assessment for alcohol use 
or abuse are as follows.
    (1) When alcohol abuse is suspected, an individual shall be 
examined for evidence of alcohol abuse. Evidence of alcohol abuse is 
reason to question the individual's certification or continued 
certification in PAP and shall require further evaluation, which may 
include psychological assessment.
    (2) Alcohol consumption is prohibited within an eight-hour period 
preceding and during nuclear explosive duties. DOE shall implement or 
require the contractor to implement procedures that will ensure that 
persons called in to perform unscheduled work are fit to perform the 
task assigned.
    (3) Individuals in the PAP shall be tested at the work site if 
there is reasonable indication of alcohol use in violation of the 
requirements of paragraph 11(d)(2) of these interim procedures and 
standards.
    (4) Tests for alcohol must be administered by a certified Breath 
Alcohol Technician using an evidential-grade breath analysis device 
that conforms to the Department of Transportation's (DOT) National 
Highway Traffic Safety Administration model specifications (58 FR 
48705, September 17, 1993), and the most recent ``Conforming Products 
List'' issued by DOT.
    (5) An individual whose confirmatory breath alcohol test result is 
at or above a blood alcohol concentration of 0.02 percent shall not be 
allowed to perform nuclear explosive duties for a minimum of 24 hours.
    (6) Individuals refusing to submit to a breath alcohol test shall 
be immediately removed from nuclear explosive duties.
    (7) The SOMD, in conjunction with the clinical psychologist, shall 
evaluate each case of alcohol abuse for evidence of psychological 
impairment and provide the PAP certifying official a recommendation as 
to the individual's reliability.
    (8) After successfully completing an SOMD-approved alcohol 
treatment program, DOE may reinstate an individual in the PAP based on 
the SOMD's follow-up evaluation and recommendation.

12. Due Process

    (a) The operations office manager, prior to rendering a decision 
not to certify or to revoke the PAP certification of a DOE employee or 
contractor employee, shall provide, in writing, the following 
information to the individual regarding the PAP suitability decision 
and review process:
    (1) The individual has three options after receiving notification 
of the manager's decision:
    (i) Take no action; or
    (ii) Respond to the information giving rise to the question of the 
individual's suitability in writing to the manager, under oath or 
affirmation before a notary public, within 20 working days of receipt 
of the notification; or
    (iii) Request, in writing to the manager, to appear before a 
certification review hearing officer, as provided in subparagraph (b), 
for a review of the information giving rise to the question as to the 
individual's suitability. The individual must request this option 
within 20 working days from receipt of the notification.
    (2) At the review conducted by the certification review hearing 
officer, the individual may be represented by counsel of the 
individual's own choosing and at the individual's own expense;
    (3) At the review, the individual may provide witnesses and 
documents in support of his or her claim for suitability for PAP 
certification or recertification; and
    (4) If the individual does not request a certification review 
hearing, the final decision as to suitability shall be based upon the 
individual's response and other information available to the manager.
    (b) Upon receipt of a request from the individual for a 
certification review hearing, the operations office manager shall 
appoint a certification review hearing officer, who shall be a DOE 
attorney, with the appropriate DOE access authorization. The manager 
shall also appoint a DOE attorney as counsel to the Department to 
assist in the following:
    (1) Obtaining evidence;
    (2) Arranging for the appearance of witnesses;
    (3) Examining and cross-examining witnesses; and
    (4) Notifying the individual in writing, at least 7 working days in 
advance, of the scheduled place, date, and hour where the review will 
take place.

[[Page 53023]]

    (c) The certification review hearing officer shall:
    (1) Conduct the review in an orderly and impartial manner with 
every effort made to protect the interests of the Government and the 
individual;
    (2) Present all information relating to the individual's 
suitability through witnesses or documentation;
    (3) Ensure that the individual is allowed the opportunity to refute 
the information and to submit mitigating information relating to his or 
her suitability. The individual shall be permitted to offer information 
in his or her behalf; to call, confront, examine, and cross-examine 
witnesses and other persons who have made written or oral statements, 
except as provided in subparagraph (4); and to present and examine 
evidence;
    (4) Have the option to receive and consider oral or written 
statements adverse to the individual without affording the individual 
the opportunity to cross-examine the person making the statement in 
either of the following circumstances:
    (i) The substance of the statement was contained in the 
individual's personnel clearance investigative file before the question 
as to the individual's suitability arose; and the head of the Federal 
agency supplying the statement certifies that the person who furnished 
the information is a confidential informant who has been engaged in 
obtaining intelligence information for the Government, and the 
disclosure of that person's identity would substantially harm the 
national security; or
    (ii) The substance of the statement was contained in the 
individual's personnel clearance investigative file before the question 
as to the individual's suitability arose, and the Assistant Secretary 
for Defense Programs (ASDP) or his or her designee for that particular 
purpose has determined, after considering information furnished by the 
investigative agency as to the reliability of the person and the 
accuracy of the statement, that--
    (A) The statement appears to be reliable and material; and
    (B) Failure of the hearing officer to receive and consider such 
statement would substantially harm the national security; and
    (C) The person who furnished the information cannot appear to 
testify due to death or severe illness, or some other good cause as 
determined only by ASDP.
    (5) Ensure that whenever procedures under subparagraph (4) are 
used, the individual is given a summary of the information, which shall 
be as comprehensive and detailed as the national security permits. In 
addition, whenever a statement is received under subparagraph (4)(ii), 
the identity of the person making the statement and the information to 
be considered shall be made available to the individual. Appropriate 
consideration shall be accorded to the fact that the individual did not 
have an opportunity to cross-examine such person. When the procedures 
under subparagraph (4) are used, the operations office manager shall 
assist the hearing officer in obtaining the necessary verifications or 
determinations.
    (6) Require the testimony of the individual and of all witnesses to 
be given under oath or affirmation.
    (7) Record the review proceedings verbatim and forward a copy of 
the record to the operations officer manager; and
    (8) Provide written findings and recommendations, with supporting 
rationale, to the operations office manager.
    (d) Upon receipt of the certification review hearing officer's 
submissions, and after receiving the individual's response in cases in 
which the individual did not request a hearing, the operations office 
manager shall promptly issue a decision in the matter. If the manager 
decides not to certify or to revoke the PAP certification, the manager 
shall inform the individual in writing of the decision and the reasons 
supporting it.
    (e) If a hearing was conducted, the operations office manager shall 
forward, along with his or her decision, a copy of the record of the 
review proceedings and of the certification review hearing officer's 
findings and recommendations, with supporting rationale, to the 
individual.
    (1) Within 20 working days of the individual's receipt of the 
Operations Office manager's decision, the individual may request a 
review by ASDP. The individual must request this review and provide 
supporting justification in writing to ASDP through the operations 
office manager and the Deputy Assistant Secretary for Military 
Application and Stockpile Management. The request must be in writing 
and include:
    (i) A copy of the operations office manager's decision and 
supporting documentation; and
    (ii) If a hearing was conducted, a copy of the record of the review 
proceedings and of the certification review hearing officer's findings 
and recommendations.
    (2) Upon receipt of an individual's request for review, ASDP shall 
review all information forwarded by the operations office manager and 
issue a decision.
    (3) If the individual does not request a ASDP review within 20 
working days of receipt of the manager's decision, the manager's 
decision shall be final.

[FR Doc. 96-25881 Filed 10-8-96; 8:45 am]
BILLING CODE 6450-01-P