[Federal Register Volume 62, Number 107 (Wednesday, June 4, 1997)]
[Proposed Rules]
[Pages 30469-30481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14416]
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DEPARTMENT OF ENERGY
10 CFR Part 711
[Docket No. DP-RM-97-100]
RIN 1992-AA14
Personnel Assurance Program
AGENCY: Department of Energy.
ACTION: Notice of Proposed Rulemaking and Public Hearings.
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SUMMARY: The Department of Energy (DOE or Department) today proposes
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 proposed rule includes medical
standards for evaluating DOE and contractor employees in the PAP.
DATES: Written comments (7 copies) on the proposed rule must be
received by the Department on or before August 4, 1997.
Oral views, data, and arguments may be presented at public hearings
which are scheduled as follows:
1. July 8, 1997, 9 a.m.-12 noon and 5 p.m-8 p.m., Amarillo, TX.
2. July 10, 1997, 10 a.m.-12 noon and 2 p.m-5 p.m., North Las
Vegas, NV.
Requests to speak at a hearing should be phoned in to the
Department, (202) 586-3012, no later than 4 p.m. on July 3, 1997, for
both hearings.
The length of each oral presentation is limited to 10 minutes.
ADDRESSES: Written comments (7 copies) should be mailed to: U.S.
Department of Energy, Office of Defense Programs, DP-21, Docket Number
DP-RM-97-100, 1000 Independence Ave. SW., Washington, DC 20585.
Requests to speak at a hearing may be phoned in to (202) 586-3012. The
public hearings will be held at the following locations.
1. Amarillo, TX, Sunset Convention Center, 3701 Plains Blvd (at
Western), Suite 135.
2. North Las Vegas, NV, USDOE, 232 Energy Way (off Losee Rd), room
A-106/107 (first floor, ``The Great Basin Room'').
Copies of transcripts from hearings and written comments may be
inspected and photocopied in the DOE Freedom of Information Reading
Room, Room 1E-190, (202) 586-6020, between the hours of 9:00 a.m. and
4:00 p.m., Monday through Friday, except Federal holidays.
For additional information concerning public participation in this
rulemaking, see the ``Opportunity for Public Comment'' section in the
Supplementary Information section of this proposed rule.
FOR FURTHER INFORMATION CONTACT: For further information concerning the
proposed rule: Mr. Randall Weidman, U.S. Department of Energy, Office
of Defense Programs (DP-21), 1000 Independence Ave. SW., Washington, DC
20585, (301) 903-3154.
For further information concerning Subpart B, Medical Assessments
for PAP Certification and Recertification: Mr. Kenneth O. Matthews,
Office of Occupational Medicine and Medical Surveillance (EH-61), 1000
Independence Ave. SW., U.S. Department of Energy, Washington, DC 20585,
(301) 903-6398.
For further information concerning the public hearings and
submitting written comments: Ms. Andi Kasarsky, (202) 586-3012.
SUPPLEMENTARY INFORMATION:
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--the Atomic Energy Commission
(AEC) and the Energy Research and Development Administration (ERDA)--
have used
[[Page 30470]]
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 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.''
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 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 serve as the basis for the contractor
to take 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, ``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 is now publishing this notice of proposed
rulemaking 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. Subject to consideration of comments that are
submitted in response to this notice, DOE intends to issue a final rule
establishing PAP procedures and standards, including medical assessment
requirements applicable to the DOE and contractor employees performing
nuclear explosive duties.
Today's notice of proposed rulemaking contains provisions that are
similar to those in a notice of interim procedures and standands DOE
published in the Federal Register on October 9, 1996 (61 FR 53018). DOE
published the interim procedures and standards after finding good cause
for making them immediately effective pending completion of notice and
comment rulemaking. The proposal published today goes beyond the
interim procedures and standards by proposing, in Subpart B, more
detailed administrative procedures and standards for the conduct of
medical assessments used for PAP certification and recertification.
II. Description and Basis for Proposed PAP Procedures and Standards
The program elements of certification, periodic recertification,
and physical and psychological evaluation for cause are based on DOE's
experience, as well as the experience of DOE's predecessor agencies for
over 30 years. Both the AEC and ERDA had provisions in their manuals
for the PAP, and DOE has had internal administrative directives setting
forth PAP policies. Today's proposed rule contains several
modifications of the PAP as set forth in DOE directives. This part of
the Supplementary Information section discusses the meaning of, and the
basis for, those modifications and other proposed provisions of the
proposed rule that require explanation.
A. Discussion of Subpart A: Certification, Recertification, and
Revocation of PAP Certification
Subpart A includes, with few substantive changes, the provisions of
the interim procedures and standards published by DOE on October 9,
1996, except for section 11 of the interim procedures and standards
dealing with medical assessments. The medical assessment provisions
have now been incorporated in an expanded set of medical assessment
provisions in Subpart B of this proposed rule.
Proposed Sec. 711.3 sets forth definitions that apply to this Part.
The definitions of ``access,'' ``custody,'' ``nuclear explosive,''
``nuclear explosive area,'' ``nuclear explosive duties,'' and ``pit''
were developed in consultation with a variety of interested
stakeholders and experts and have been included in internal DOE orders
and directives. The term ``alcohol use disorder'' is included as a
substitute for the term ``alcohol abuse'' that was used in the interim
procedures and standards. The definition of ``alcohol use disorder'' is
used in the occupational medical field to describe the condition
referred to in the interim procedures and standards as alcohol abuse.
``Hallucinogen'' is defined, for purposes of PAP, as any
hallucinogenic drug or substance that causes flashbacks. A definition
of ``flashback'' is included. The basis for these terms is discussed
more fully in connection with Sec. 711.5, ``General requirements.'' The
definition of ``illegal drug'' tracks the definitions of ``illegal
drug'' in 10 CFR 707.4 (``Workplace Substance Abuse Programs at DOE
Sites'') and 10 CFR 710.54 (applicable to DOE's Personnel Security
Assurance Program).
Proposed Sec. 711.4 contains general provisions that describe and
define the scope of the PAP. Paragraph (a) Would establish that PAP
certification is in addition to any other qualification requirements
that may apply to a particular job. Paragraph (b) would preserve the
contractor's authority to establish stricter standards, including
medical standards, for individuals the contractor nominates for PAP
certification or recertification. Paragraph (c) would provide that the
failure of an individual to be certified or recertified in the PAP
shall not, by itself, be cause for questioning the individual's
qualification for non-PAP duties or for loss of pay or other employment
benefits. While an individual's failure to be recertified in the PAP
would not automatically be cause for denial of non-PAP employment or
loss of pay, conduct that leads to an individual's removal from the PAP
(e.g., participation in illegal drug activity) may be the basis for an
adverse personnel management action (e.g., participation in illegal
drug activity). Paragraph (e) would grant broad authority to the
operations office manager to delegate most PAP responsibilities to
lower-level DOE officials. This delegation would provide necessary
flexibility in implementing the PAP.
[[Page 30471]]
Proposed Sec. 711.5(b)(3) would require each individual in the PAP
to be tested for illegal drugs at least once each calendar year in an
unannounced and unpredictable manner. In addition to this random
testing, DOE may test an individual for cause or reasonable suspicion
of illegal drug use, or after an accident or an unsafe practice
involving the individual. Drug testing procedures are dealt with in
Sec. 711.42.
Proposed Sec. 711.5(b)(4), and Sec. 711.43 in Subpart B, set forth
a special policy for disqualification from the PAP for hallucinogen
use. ``Hallucinogen'' is defined in proposed Sec. 711.3 so as to limit
PAP-disqualifying hallucinogens to those hallucinogenic drugs or
substances that cause flashbacks. The proposed rule provides that
hallucinogen use more than 5 years earlier is not, in itself, an
adequate basis for denying certification or recertification. 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. Flashbacks
typically have all of 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
hallucinogen use, or they may occur a few weeks, months, or even years
later. In developing the proposed 5-year rule, DOE has consulted with
experts at the Alcohol, Drug Abuse and Mental Health Administration of
the Department of Health and Human Services. DOE has 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, proposed Sec. 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.
Proposed Sec. 711.6 sets forth details of the PAP certification
process. Paragraph (a) would assign the PAP certifying official the
responsibility for making the initial decision to certify or recertify
an individual in the PAP. The PAP certifying official may be the
operations office manager, but more typically it will be a lower-level
official who has been delegated the certification authority by the
operations office manager or, on occasion, by the Secretary of Energy.
Paragraph (b) would direct each operations office manager who has
jurisdiction over PAP certification to issue implementing instructions
that accomplish specified objectives. Because of the varied nature of
the workforce at DOE sites, the proposed rule does not dictate the
implementation details, but rather sets forth performance standards for
PAP implementation.
Proposed Sec. 711.7 would require PAP administrators to maintain a
list of individuals certified in the PAP. The required list would be
used for DOE program administration purposes only, and would not be
considered as an authorization for an individual to perform PAP duties.
Proposed Sec. 711.9 would impose an obligation on supervisors to
report any observed or reported condition or behavior of a PAP
individual that gives rise to a reasonable belief that the individual
may not be able to perform assigned tasks in a safe and reliable
manner. Proposed Sec. 711.10 would impose the same obligation on
individuals in the PAP, including a duty of self-reporting. The non-
exclusive list in Sec. 711.9(b) includes a variety of conditions and
behavior that may raise PAP concerns. It is emphasized the purpose of
this reporting is only to determine whether an individual should be
removed from nuclear explosive duties.
Proposed Secs. 711.11 through 711.16 would prescribe the procedures
that must be followed for resolving issues related to denial of
certification or recertification and revocation of PAP certification.
Proposed Sec. 711.11 would provide for the immediate removal of any
PAP-certified individual from nuclear explosive duties if a question is
raised about that individual's suitability.
Proposed Sec. 711.12 deals with the evaluation following temporary
removal from nuclear explosive duties; the recommendation of the PAP
certifying official; and the operations office manager's initial
decision and decision following a request for reconsideration or a
hearing before a certification review hearing officer.
Proposed Sec. 711.13 concerns the appointment of a certification
review hearing officer and DOE legal counsel. Paragraph (a)(2) would
ensure the independence of the hearing officer by providing that the
hearing officer may not have prior involvement with the matter for
which a hearing is requested, nor be directly supervised by any person
who is involved in the matter. Subject to the restrictions in paragraph
(a), the operations office manager would have discretion in selecting a
hearing officer. Depending on the availability of personnel and the
needs of a particular case, the manager may appoint a qualified field
office attorney to serve as hearing officer or request the DOE Office
of Hearings and Appeals to assign a hearing officer.
Proposed Sec. 711.16 would provide an individual who has been
denied certification or recertification the right to appeal the
operations office manager's final decision to the Assistant Secretary
for Defense Programs within 20 working days after receipt of the
manager's decision.
B. Discussion of Subpart B: Medical Assessments for PAP Certification
and Recertification
Subpart B includes the substance of the medical assessment
provisions in section 11 of the interim procedures and standards,
including the requirements for illegal drug and alcohol use disorder
evaluation and testing. In addition, Subpart B contains definitions
that apply to the medical assessment program; provisions on the
responsibilities of PAP-designated physicians and psychologists, the
SOMD, and other DOE officials; general medical standards for PAP
certification; and administrative requirements for medical assessments,
including provisions for the maintenance of medical records.
Proposed Sec. 711.22 includes definitions that are used in Subpart
B. The focus of a medical assessment under this subpart is on a PAP
individual's fitness for duty. The term ``fitness for duty'' is defined
to mean that the physical and mental health of a PAP individual is
adequate for the performance of nuclear explosive duties in a safe and
reliable manner. It is noted that ``fitness for duty'' is narrower than
the concept of ``PAP suitability'' used throughout Subpart A. ``PAP
suitability'' is a term of longstanding use in the PAP. It encompasses
all of the conditions or behavior listed in Sec. 711.9(b), some of
which may not involve the physical or mental health of an individual.
Proposed Sec. 711.30 sets forth the minimum qualifications of
designated physicians and their responsibilities. The designated
physician at a DOE site may serve multiple functions, including serving
as the security designated physician, the Medical Review Officer, and
firefighter designated physician. Proposed Sec. 711.31 sets forth the
[[Page 30472]]
minimum qualifications and responsibilities of designated
psychologists. The designated psychologist reports directly to the SOMD
and has the principal responsibility for assessing the psychological
fitness of individuals in the PAP. The SOMD's role in nominating
designated physicians and psychologists and overseeing the PAP medical
assessment program is covered in proposed Sec. 711.32.
Proposed Sec. 711.40 contains the general medical standards that
must be met by individuals certified in the PAP. An individual must be
free of any mental, emotional, physical or medical condition or
behavior that is likely to result in impaired ability to perform
assigned duties in a safe and reliable manner. Paragraphs (a) through
(f) list conditions or behavior that may disqualify an individual from
nuclear explosive duties. A medical assessment, conducted as provided
in Subpart B, is required to determine whether an individual will be
denied initial certification or recertification because of any of the
listed conditions or behaviors.
Proposed Sec. 711.41 establishes requirements for the PAP medical
assessment process. Paragraph (a) would give the designated physician
the overall responsibility, subject to supervision by the SOMD, for the
medical assessment of PAP individuals for certification and
recertification. Paragraph (b) would require DOE and contractor
employers to provide a job task analysis, as defined in Sec. 711.22, to
the designated physician and designated psychologist as a prerequisite
to each medical assessment and psychological evaluation. Paragraph (c)
would require that medical assessments shall be conducted each time
there is a ``medical contact.'' Medical contacts include the medical
assessments required for initial recertification, annual
recertification, and recertification that occurs following the
revocation of an individual's removal from nuclear explosive duties.
Medical contacts also occur if an individual is transferred to a
different job, is self-referred or referred by his or her employer for
evaluation, returns to work after an absence for which an evaluation is
required by DOE directives, and if an individual's legal drug use is
reviewed.
Paragraph (d) presents details about medical assessments that
involve a psychological evaluation. 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 assessment for recertification, while the psychological
inventory tool is required every third year as part of the medical
assessment for recertification. The Minnesota Multi-phasic Personality
Inventory is an example of a psychological inventory tool. A ``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.
Paragraph (f) concerns the handling of completed medical
assessments. Paragraph (f)(1) applies in cases of initial certification
and recertification in which the PAP individual is determined to meet
the requirements for recertification. In such cases, the designated
physician is directed to submit the completed medical assessment to the
SOMD, who shall forward a recommendation based on the assessment to the
individual's administrative organization and the PAP certifying
official. Paragraph (f)(2) applies to cases in which a currently
certified individual fails to meet the requirements for
recertification. In such cases, the designated physician is directed to
immediately inform the PAP certifying official and the PAP individual's
administrative organization.
Proposed Sec. 711.42 deals with policies applicable to detecting
and acting with regard to positive indications of drug abuse. ``Drug
abuse'' is defined in proposed Sec. 711.22 to mean use of an illegal
drug or misuse of a legal drug. Paragraph (b) cross-references 10 CFR
part 707 which provides DOE's general policy to promote drug-free
workplaces, and applies to DOE contractors performing work at DOE-owned
or controlled sites. Paragraph (d) establishes conditions on
reinstatement in the PAP following rehabilitation. Proposed
Sec. 711.43, ``Evaluation of hallucinogen use,'' is discussed in
connection with proposed Sec. 711.5, ``General requirements,'' in
Subpart A.
Proposed Sec. 711.44 concerns medical assessments for alcohol use
disorder and specifies the blood alcohol concentration level that
warrants enforcement action. Based on a review of the practices of the
Federal Aviation Administration with regard to airplane pilots (14 CFR
91.17(a)(1); 49 CFR 382.505(b)), DOE has adopted the policy of
prohibiting alcohol consumption within an 8-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.
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.
Proposed Sec. 711.45 sets forth requirements that apply to
maintenance of medical records. Paragraph (c) would establish stringent
protections for psychological records, which are to be maintained
separately from other medical records of PAP individuals.
III. Opportunity for Public Comment
A. Written Comment Procedures
Written comments (7 copies) should be identified on the outside of
the envelope, and on the comments themselves, with the designation:
``Personnel Assurance Program NOPR, Docket Number DP-RM-97-100'' and
must be received by the date specified at the beginning of this notice.
In the event any person wishing to submit a written comment cannot
provide seven copies, alternative arrangements may be made in advance
by calling Ms. Andi Kasarsky at (202) 586-3012.
All comments received on or before the date specified at the
beginning of this notice and other relevant information will be
considered by DOE before final action is taken on the proposed rule.
All comments submitted will be available for examination in the Rule
Docket File in DOE's Freedom of Information Reading Room. In addition,
a transcript of the proceedings of the public hearings will be filed in
the docket.
Pursuant to the provisions of 10 CFR 1004.11, any person submitting
information or data that is believed to be confidential, and which may
be exempt by law from public disclosure, should submit one complete
copy, as well as two copies from which the information claimed to be
confidential has been deleted. The DOE will make its own determination
of any such claim.
B. Public Hearing Procedures
The time and place of the public hearings are indicated at the
beginning of this notice. The Department invites any person who has an
interest in the proposed regulation, or who is a representative of a
group or class of persons which has an interest, to make a request for
an opportunity to make an oral presentation at the hearing. Requests to
speak should be sent to the address or phone number indicated in the
ADDRESSES section of this notice and be received by the time specified
in the DATES section of this notice.
[[Page 30473]]
The person making the request should provide a phone number where
they may be reached during the day. Each person selected to speak at a
public hearing will be notified as to the approximate time that they
will be speaking. They should bring seven (7) copies of their statement
to the hearing. In the event any person wishing to testify cannot meet
this requirement, alternative arrangements may be made in advance with
Ms. Andi Kasarsky, (202) 586-3012.
The DOE reserves the right to select persons to be heard at each
hearing, to schedule their presentations, and to establish procedures
governing the conduct of the hearing. The length of each presentation
will be limited to ten minutes, unless modified based on the number of
persons requesting to speak.
A Departmental official will be designated to preside at the
hearing. The hearing will not be a judicial or an evidentiary-type
hearing, but will be conducted in accordance with 5 U.S.C. 553 and
section 501 of the Department of Energy Organization Act, 42 U.S.C.
7191. At the conclusion of all initial oral statements, each person
will be given the opportunity to make a rebuttal statement. The
rebuttal statements will be given in the order in which the initial
statements were made.
Any further procedural rules needed for the proper conduct of the
hearing will be announced by the Presiding Officer at the hearing.
If DOE must cancel a hearing, DOE will make every effort to publish
an advance notice of such cancellation in the Federal Register. Notice
of cancellation will also be given to all persons scheduled to speak at
the hearing. Hearing dates may be canceled in the event no public
testimony has been scheduled in advance.
IV. 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 (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 (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 proposed today would apply to DOE and
DOE contractor personnel employed at defense nuclear facilities. The
proposed rule would 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 et seq., 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 proposed rule would affect a total of approximately 3,300 DOE
and 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
certifies that the proposed rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
Public comment on this issue is invited.
D. Review Under the National Environmental Policy Act
The proposed rule would amend the PAP program which has been in
existence, pursuant to DOE directives, for approximately 30 years. In
addition, it relates to personnel qualifications and, if promulgated,
would have no impact on the environment. Categorical exclusions A1 and
A5 in Appendix A to Subpart D, 10 CFR part 1021 apply to this
rulemaking. The Department has therefore determined that neither an
environmental assessment nor an environmental impact statement is
required.
E. Review Under the Paperwork Reduction Act
The proposed 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, or 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, the proposed rule meets the relevant standards of
Executive Order 12988.
List of Subjects in 10 CFR Part 711
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Government contracts, Government employees, Health, Nuclear safety,
Occupational safety and health.
[[Page 30474]]
Issued in Washington, DC on May 23, 1997.
Victor H. Reis,
Assistant Secretary for Defense Programs.
Peter N. Brush,
Principal Deputy Assistant Secretary for Environment, Safety and
Health.
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
Subpart A--Certification, Recertification, 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 certification review hearing officer and
legal counsel.
711.14 Certification review hearing.
711.15 Hearing officer's submission.
711.16 Appeal of the operations office manager's final decision.
Subpart B--Medical Assessments for PAP Certification and
Recertification
General Provisions
711.20 Applicability.
711.21 Purpose and scope.
711.22 Definitions.
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.
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. Sec. 2201, 7191.
Subpart A--Certification, Recertification, and Revocation of PAP
Certification
Sec. 711.1 Purpose.
The purpose of this part is to establish a PAP in the 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 contractor
employees assigned to nuclear explosive duties.
(b) The provisions of this part 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.''
Sec. 711.3 Definitions.
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.
Contractor means the contractor and subcontractors at all tiers.
Custody means responsibility for control of and access to nuclear
explosives.
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 law.
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 or manager means the manager of a DOE
operations office.
PAP certifying official or certifying official means the operations
office manager or the manager's delegate who certifies, recertifies, or
reviews the circumstances of an individual's removal from nuclear
explosive duties, or another individual who is delegated the
certification function by the Secretary of Energy.
PAP individual means an individual being considered for assignment
or assigned to perform nuclear explosive duties.
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.
Site Occupational Medical Director 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 apply.
(b) 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.
(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 the consideration of
technical competence and other job qualification requirements shall be
considered only if they are based on behavior that also
[[Page 30475]]
affects an individual's suitability for the PAP.
(e) The use of any hallucinogen having the potential to cause
flashbacks is incompatible with PAP duties and must be evaluated prior
to certification or recertification.
(f) 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 final DOE Q access authorization;
(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) Complete a 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 be susceptible to flashbacks resulting from use of any
hallucinogen more than 5 years before applying for certification or
recertification; and
(6) Be tested for illegal drugs at least once each calendar year in
an unannounced and unpredictable manner; an individual may be tested
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's PAP certification shall be revoked 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 may be
reinstated in the PAP if the individual successfully completes an SOMD-
approved drug rehabilitation program, as provided in Sec. 711.42 of
subpart B.
(f) If an individual chooses to not 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 recertification.
(b) Each operations office manager who exercises 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 of each PAP
individual is reviewed by a DOE employee trained to identify PAP
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 revocation process;
(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 recertification
process, and requiring a contractor to provide any additional personal
data or information in its possession that may have a bearing on
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; and
(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.
Sec. 711.7 Maintenance of PAP personnel list.
Operations office managers who conduct 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.
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 processing and the work
environment in nuclear explosive areas;
(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.
[[Page 30476]]
(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 is illegal 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 Sec. 711.9, to a supervisor, the
SOMD, or a 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 a 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, require
the individual to stop performing nuclear explosive duties and deny the
individual access to nuclear explosive areas.
(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.
(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.
(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 temporarily removed
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 in the PAP, 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) 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.
(f) Notification of operations office manager's initial decision.
The operations office manager shall send by certified mail, return
receipt requested, a written decision 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 review of the
manager's decision.
(g) Request for reconsideration or certification review hearing. An
individual who receives notification of an operation office manager's
decision to deny or revoke their PAP certification may choose one of
the following options:
(1) Take no action;
[[Page 30477]]
(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 received by the
operations office manager within 20 working days after the individual
received notice of the 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
received by the operations office manager within 20 working days after
the individual receives notice of the office manager's decision.
(h) 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
manager shall, within 20 working days, 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 information
available to the 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 submission, as provided in
Sec. 711.15. The operations office manager shall, within 20 working
days, send by certified mail, return receipt requested, the manager's
final decision to the individual, accompanied by a copy of the hearing
officer's findings and recommendations, 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 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 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 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 cross-examine witnesses and
other persons who have made written or oral statements, except as
provided in paragraph (c)(3) of this section, 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 before the question as to the
individual's fitness for PAP certification 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
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 before the question as to the
individual's fitness for PAP certification arose, 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), 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 submission.
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 recommendations
regarding the individual's suitability for certification or
recertification in the PAP to the operations office manager. The
hearing officer's decision 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 received by the Assistant
Secretary for Defense
[[Page 30478]]
Programs 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 findings and recommendations and the transcript or
record of the proceedings.
(c) Upon 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.
(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 operations office manager's decision shall be final.
Subpart B--Medical Assessments for PAP Certification and
Recertification
General Provisions
Sec. 711.20 Applicability.
This subpart establishes standards and procedures for conducting
medical assessments of DOE and contractor employees in the PAP.
Sec. 711.21 Purpose and scope.
The standards and procedures set forth in this subpart are
necessary for DOE to:
(a) Identify the presence of any mental, emotional, 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;
(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.
Sec. 711.22 Definitions.
In addition to the definitions in subpart A of this part, the
following definitions apply to this subpart:
Designated physician means a licensed doctor of medicine or
osteopathy who has been nominated by the SOMD with the concurrence of
the Director, Office of Occupational Medicine and Medical Surveillance,
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 with the concurrence of
the Director, Office of Occupational Medicine and Medical Surveillance,
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.
Fitness for duty means that the physical and mental health of a PAP
individual is adequate for the performance of nuclear explosive duties
in a safe and reliable manner.
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 historical 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 substance abuse disorders and
appropriate medical training to interpret drug test results. The MRO
may also be the designated physician and/or SOMD.
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.
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 to the worksite.
(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 disqualify an individual or
that may in the future disqualify an individual from the PAP;
(4) Providing medical assessment information to the designated
psychologist to assist in determining psychological fitness;
(5) Determining the location and date of the next required medical
assessment, thereby establishing the period of certification; and
(6) Signing a recommendation for certification or recertification
of an individual.
(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;
[[Page 30479]]
(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
included 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 to the worksite.
(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 regular personal workplace contact with supervisors
and workers to help them identify psychologically distressed PAP
individuals;
(5) Make referrals for psychiatric, psychological, substance abuse,
personal or family problems, and monitor the progress of individuals so
referred; and
(6) Participate as a member of the hostage negotiations team as
required by the emergency management center.
(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 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 appropriate
operations office to the Director, Office of Occupational Medicine and
Medical Surveillance. Each nomination shall describe the nominee's
relevant 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 redesignation report biennially through
the operations office 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 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 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 elements of DOE 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.
Operations office managers 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 behavior likely to result
in impaired ability to perform assigned duties in a safe and reliable
manner. The designated physician, with the assistance of the designated
psychologist, shall determine whether any of the following disqualify
an individual from performing nuclear explosive duties:
[[Page 30480]]
(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 as defined in the
Diagnostic and Statistical Manual of Mental Disorders;
(c) Past or present 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) Past or present 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 shall
integrate the medical evaluations, 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 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 has not been provided.
(c) The designated physician shall consider a PAP individual's
fitness for duty at the time of each medical contact, including:
(1) Medical assessments for initial certification, annual
recertification, and special evaluations for recertification 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 evaluation. (1) For the initial certification,
the 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 semistructured
interview.
(2) For recertification, the psychological evaluation consists of a
semistructured 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 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 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 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 program after treatment of a PAP 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.'' Copies of DOE Orders are available for
inspection in the DOE Freedom of Informaiton Reading Room, Washington,
DC.
(b) Except as otherwise provided by this section, a medical
assessment for illegal drug use by 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) After successfully completing an SOMD-approved drug
rehabilitation program, and subject to SOMD-directed unannounced tests
for illegal drugs and relevant counseling for 3 years, DOE may
reinstate an individual in the PAP based on the SOMD's follow-up
evaluation and recommendation.
Sec. 711.43 Evaluation of 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 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 and during the performance of 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 tasks assigned.
(c) Individuals in the PAP shall be tested at the work site if
there is an
[[Page 30481]]
indication of alcohol use in violation of the requirements of paragraph
(b) of this section.
(d) 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 (NHTSA) model specifications, and
the most recent ``Conforming Products List'' issued by NHTSA which are
available from the Office of Traffic Safety Programs, Washington, DC.
(e) 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.
(f) Individuals refusing to submit to a breath alcohol test shall
be immediately removed from nuclear explosive duties.
(g) 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.
(h) 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 maintained according to established professional
standards.
(b) The medical records of PAP individuals shall be maintained in
accordance with the Privacy Act, 5 U.S.C.Sec. 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
1910.20; and applicable DOE orders and directives.
(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 part 707, ``Workplace Substance
Abuse Programs at DOE Sites.''
[FR Doc. 97-14416 Filed 6-3-97; 8:45 am]
BILLING CODE 6450-01-P