[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Rules and Regulations]
[Pages 48060-48074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23885]



[[Page 48059]]

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Part IV





Department of Energy





_______________________________________________________________________



10 CFR Part 711



Personnel Assurance Program; Final Rule

  Federal Register / Vol. 63, No. 173 / Tuesday, September 8, 1998 / 
Rules and Regulations  

[[Page 48060]]



DEPARTMENT OF ENERGY

Personnel Assurance Program

10 CFR Part 711

RIN 1992-AA14


[Docket No. DP-RM-97-100]


Personnel Assurance Program; Final Rule

AGENCY: Department of Energy.

ACTION: Final rule.

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

SUMMARY: The Department of Energy (DOE or Department) today is 
publishing a final rule on Personnel Assurance Program (PAP) procedures 
and standards for DOE and DOE contractor employees who are assigned 
nuclear explosive duties at DOE facilities. The PAP is a systematic 
program, previously established by internal DOE directive, to prevent 
accidental or unauthorized detonation of nuclear explosives as a result 
of assignment of nuclear explosives duties to employees who have become 
emotionally, mentally, or physically incapacitated. The rule includes 
medical standards for evaluating DOE and contractor employees in the 
PAP.

EFFECTIVE DATE: This rule is effective October 8, 1998.

FOR FURTHER INFORMATION CONTACT: For further information concerning 
this final rule: Mr. Randall Weidman, U.S. Department of Energy, Office 
of Defense Programs (DP-21), 1000 Independence Ave., SW., Washington, 
D.C. 20585, (301) 903-3154.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Public Comments and Regulatory Text
    A. Subpart A: PAP Certification/Recertification, Temporary 
Removal/Reinstatement, and Revocation of PAP Certification
    B. Subpart B: Medical Assessments for PAP Certification/
Recertification
III. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12612
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the National Environmental Policy Act
    E. Review Under the Paperwork Reduction Act
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Congressional Notification

I. Background

    Pursuant to the Atomic Energy Act of 1954 (Act), DOE owns defense 
nuclear facilities in various locations in the United States which are 
operated by management and operating contractors under DOE supervision. 
These facilities are involved in researching, testing, producing, 
disassembling, and transporting of nuclear explosives which, when mated 
with Department of Defense-provided delivery systems, become nuclear 
weapon systems.
    Pursuant to section 161 of the Act, 42 U.S.C. 2201(b), (i)(3), and 
(p), DOE and its predecessor agencies have used some version of the PAP 
to certify, actively monitor, and periodically recertify personnel as 
suitable to perform nuclear explosive duties in a safe and reliable 
manner. PAP provides for disqualification of persons from performance 
of nuclear explosive duties who fail to meet PAP requirements for 
emotional, mental, and physical capability. In DOE's internal 
administrative directives, DOE Order 452.2, formerly DOE Order 5610.11, 
``SAFETY OF NUCLEAR EXPLOSIVE OPERATIONS,'' the term ``Nuclear 
Explosive Duties'' has been defined to include duties performed by DOE 
or contractor employees who have custody of or access to a nuclear 
explosive.
    All PAP-certified employees are subject to continuous review and 
evaluation. The certification of such employees is subject to immediate 
review in light of facts and circumstances when an employee's behavior 
indicates a reliability risk that warrants protective action to 
neutralize a nuclear explosive hazard by having an individual 
immediately removed from nuclear explosive duties. Immediate removal 
does not constitute a determination that the individual is unsuitable 
for nuclear explosive duties, but rather indicates that the 
individual's suitability is in question.
    In 1992, the Independent Guard Association of Nevada, Local No. 1, 
representing PAP-certifiable civilian security guards employed by 
Wackenhut Security, Inc., at DOE's Nevada Test Site, brought suit 
challenging DOE Order 5610.11, ``NUCLEAR EXPLOSIVE SAFETY,'' which 
established the Department's nuclear explosive and weapons safety 
program, including the PAP. The DOE Order was challenged for failure to 
promulgate it through public notice and comment in compliance with the 
Administrative Procedure Act, 5 U.S.C. 553. In Independent Guard 
Association of Nevada v. O'Leary, No. CV-S-92-204-LDG-LRL (D. Nev. June 
14, 1996), the District Court enjoined DOE from enforcing the 
requirements section (section 2) of DOE Order 5610.11, Chapter I, 
against contractor employees pending notice and comment rulemaking 
under 5 U.S.C. 553.
    DOE published a notice of interim procedures and standards for the 
PAP on October 9, 1996 (61 FR 53018). The interim PAP procedures and 
standards were made effective immediately upon publication to mitigate 
the occupational and public safety risk during the period of time 
required to complete a public rulemaking proceeding.
    On June 4, 1997, DOE published a notice of proposed rulemaking 
(NOPR) to codify the PAP employee certification procedures and 
standards and other PAP-related policies, including the 
responsibilities of the Site Occupational Medical Director (SOMD) and 
other medical personnel. The proposed rule contained provisions that 
are similar to those in the notice of interim procedures and standards. 
The NOPR also contained administrative procedures and standards for the 
conduct of medical assessments for PAP certification that were not 
included in the interim rule, but which generally conform to existing 
practice.

    (Note: Unless otherwise indicated, references in this 
Supplementary Information section to ``PAP certification,'' 
``certification,'' or ``certification process,'' include annual 
recertification because generally the procedures and standards are 
the same.)

    DOE received seven written comments on the proposed rule. Comments 
were received from two organizations that represent security guards 
(Independent Guard Association of Nevada, Local No. 1, and the National 
Council of Security Inspectors); an organization concerned about 
nuclear safety issues (Serious Texans Against Nuclear Dumping or 
STAND); the U.S. Equal Employment Opportunity Commission (two 
comments); the PAP Coordinator at one DOE facility; and an individual 
employed at another DOE facility. In addition, three individuals and a 
representative of the Independent Guard Association of Nevada presented 
oral comments on the proposed rule at public hearings that were held in 
Amarillo, Texas, and Las Vegas, Nevada, in July of 1997. DOE has 
carefully considered all of these comments in preparing this final 
rule.

II. Discussion of Public Comments

    This part of the Supplementary Information section contains the 
Department's responses to issues raised in public comments on the 
proposed rule and an explanation of changes that DOE has made in this 
final rule in response to the public comments and as a result of 
additional internal review.

[[Page 48061]]

A. Subpart A: PAP Certification/Recertification, Temporary Removal/
Reinstatement, and Revocation of PAP Certification

1. Definitions
    In this final rule, DOE makes several changes to the definitions 
that apply to this part.
    DOE has moved the definitions from proposed section 711.22, in 
subpart B, to section 711.3 to have all definitions in one location.
    A definition of ``PAP official'' has been added to section 711.3 to 
clarify that the term includes any DOE manager or supervisor involved 
in the PAP certification process.
    As proposed, the definition of ``illegal drug'' provided that the 
term would not apply to the use of a controlled substance in accordance 
with the terms of a valid prescription ``or other uses authorized by 
law.'' In the final rule, DOE has revised the quoted phrase to read: 
``or other uses authorized by Federal law.'' This change is made to 
clarify that the definition of ``illegal drug'' used in this part would 
take precedence over any inconsistent state or local law.
2. General Provisions and Requirements
    Two commenters objected to proposed section 711.4(b) which would 
have provided: ``Nothing in this part shall be construed as prohibiting 
contractors from establishing stricter suitability standards for 
selecting candidates for nomination to DOE for certification or 
recertification in the PAP.'' DOE proposed this paragraph to make clear 
that by establishing procedures and standards for PAP certification, 
DOE did not intend to prevent contractors from establishing more 
stringent employment standards for their own business purposes. 
Commenters argued that this approach would result in contractors 
negotiating with labor organizations over PAP certification standards 
that would apply to their employees, and that this would produce non-
uniform PAP standards. DOE does not agree with these arguments because 
decisions to certify or deny certification in the PAP will be made by 
DOE employees only in accordance with the procedures and standards in 
part 711. DOE employees will not use a more stringent contractor 
employment requirement, should any exist, in making a decision 
regarding a PAP individual's certification. Accordingly, DOE has not 
changed the substance of section 711.4(b).
    These commenters also asked for clarification of proposed section 
711.4(d), which provides that personnel management actions involving an 
employee will be considered in making PAP certification decisions only 
if they are based on behavior that also affects an individual's 
suitability for the PAP. Stated another way, an individual's PAP 
certification will not be affected by any personnel management action 
involving the individual that is not based on behavior that raises a 
concern about the individual's suitability for the PAP. DOE believes 
the proposed language is clear and, therefore, section 711.4(d) is 
unchanged.
    DOE has deleted proposed section 711.4(e), regarding evaluation for 
hallucinogen use because the substance of that provision is included in 
section 711.5(b)(5). This deletion from the section eliminates this 
redundancy.
    One commenter, a PAP coordinator at a DOE facility, expressed 
concern that proposed section 711.5(b)(2), which would require that PAP 
individuals sign an acknowledgment and agreement to participate in the 
PAP, did not mention one form currently in use, the ``Authorization and 
Consent to Release Personal Records in Connection with the Personnel 
Assurance Program'' form. That form is not specifically referenced in 
the rule because DOE intends to consolidate the current agreement to 
participate and consent forms into a single form. DOE did not intend to 
suggest, by omitting reference to the consent to release personal 
records form, that DOE would not continue to require that PAP 
individuals consent to release of records.
    Section 711.5(b)(5), and section 711.43 in subpart B, set forth a 
special policy for disqualification from the PAP for hallucinogen use. 
``Hallucinogen'' is defined in section 711.3 so as to limit PAP-
disqualifying hallucinogens to those hallucinogenic drugs or substances 
that cause flashbacks. The rule provides that use of a hallucinogen in 
the preceding 5 years is disqualifying. Hallucinogen use more than 5 
years preceding the application for certification/recertification is 
not, in itself, an adequate basis for denying certification or 
recertification or for revocation of certification. The 5-year rule 
reflects a period of time that should elapse, as a protective practice, 
to minimize the likelihood of flashbacks. ``Flashback'' is the term 
used to describe a transient, spontaneous recurrence of certain aspects 
of a person's hallucinogen experience. Because flashbacks are sudden, 
often unpredictable, largely involuntary, dramatic alterations of 
emotional state, perception, sensation, and behavior, an accident could 
result if a flashback were to occur during the performance of a 
hazardous task. Flashbacks may occur within a few days after 
hallucinogen use, or they may occur a few weeks, months, or even years 
later. In developing the 5-year rule, DOE consulted with experts at the 
Alcohol, Drug Abuse and Mental Health Administration of the Department 
of Health and Human Services. DOE placed the views, and a review of 
relevant studies, submitted by the National Institute on Drug Abuse, in 
the docket established for this rulemaking. Although an individual who 
used a hallucinogen more than 5 years earlier would be considered for 
nuclear explosive duties, section 711.43 provides that an individual 
who has used a hallucinogen must undergo a medical evaluation to 
determine reliability. In addition, the individual must have an 
acceptable job record and observed behavior.
    DOE received comments on the hallucinogen policy, as provided in 
proposed section 711.5. As proposed, section 711.5(b)(5) stated that to 
be certified in the PAP, an individual ``shall: (5) Not have used any 
hallucinogen in the preceding 5 years, and shall not be susceptible to 
flashbacks resulting from use of any hallucinogen more than 5 years 
before applying for certification or recertification.'' One commenter 
objected to the use of the word ``susceptible,'' arguing that it would 
establish too subjective a standard for determining the risk of 
flashbacks occurring from hallucinogen use more than 5 years prior to 
filing of an application for certification or recertification. DOE has 
revised section 511.5(b)(5) to replace the word ``susceptible'' with 
the standard: ``shall not have experienced a flashback''. DOE believes 
this is a more measurable, yet sufficiently protective, standard.
    A commenter questioned the adequacy of the requirement in proposed 
section 711.5(b)(6) that each individual in the PAP be tested for 
illegal drugs, on a random basis, ``at least once each calendar year''. 
The commenter expressed concern that the interval between drug tests 
could be much greater than once in each 12-month period. DOE did not 
intend the proposed rule to change existing practice regarding the 
frequency of drug testing. To clarify this in the final rule, DOE has 
included in sections 711.5(b)(6) and 711.5(b)(7) cross-references to 
the applicable requirements. For DOE employees, the applicable 
requirements for drug testing are in DOE Order 3792.3, ``Drug-Free 
Federal Workplace Testing Implementation Program,'' and for

[[Page 48062]]

contractor employees, the applicable requirements are in 10 CFR Part 
707, ``Workplace Substance Abuse Programs at DOE Sites.''
    Section 711.5(d) provides that an individual will be denied 
certification, or will have his or her certification revoked, if drug 
testing confirms that the individual has used an illegal drug. A person 
who uses illegal drugs is not suitable for nuclear explosive duties. 
Proposed section 711.5(e) would have provided that an individual whose 
certification is revoked because of illegal drug use ``may be 
reinstated in the PAP if the individual successfully completes a SOMD 
approved drug rehabilitation program as provided in Sec. 711.42 of 
subpart B.'' One commenter argued that DOE should automatically 
reinstate an individual in the PAP following successful completion of 
an approved drug rehabilitation program. DOE has not adopted this 
comment because DOE cannot, for reasons of sound administration, hold 
open a position in the PAP for an individual who undertakes to complete 
a drug rehabilitation program. In addition, the PAP certifying official 
must base reinstatement decisions on a comprehensive evaluation of each 
individual case.
    Section 711.6 sets forth requirements for the PAP certification 
process. Under section 711.6(b) each operations office manager who has 
jurisdiction over PAP certification shall issue implementing 
instructions that accomplish specified objectives. Because of the 
varied nature of the workforce at DOE sites, the rule does not dictate 
the implementation details, but rather sets forth performance standards 
to be achieved.
    DOE received comments concerning the possible abuse of the 
certification process or misuse of information obtained in that process 
to retaliate against particular employees for actions unrelated to PAP 
suitability. One commenter alleged that the PAP or equivalent DOE 
programs have been used to stifle employee concerns and as a tool for 
reprisals against whistle-blowers. The commenter urged DOE to include 
safeguards in the rule to protect employees from misuse of information 
or the certification process.
    While the rule gives individuals certain rights in the process for 
resolving PAP concerns, it does not include whistle-blower protection 
provisions because whistle-blower protection is provided in separate 
regulations. In 1992 DOE established a DOE Contractor Employee 
Protection Program which prescribes procedures for processing 
complaints by contractor employees that allege discriminatory action by 
an employer in retaliation for the employee's disclosure of information 
related to health and safety, mismanagement, and other matters; for 
participation in proceedings before Congress or the Department; or for 
refusal to engage in illegal or dangerous activities. 57 FR 7533 (Mar. 
3, 1992). The regulations are codified at 10 CFR part 708. DOE 
established the Contractor Employee Protection Program for employee 
complaints that are not covered by the whistle-blower protection 
program administered by the Department of Labor under 29 CFR part 24, 
``Procedures for the Handling of Discrimination Under Federal Employee 
Protection Statutes.'' On October 25, 1996, DOE published a Notice of 
Inquiry that invited public comment on experience under, and 
recommendations for improving, the DOE Contractor Employee Protection 
Program. 61 FR 55230. After considering the comments it received, DOE 
published a notice of proposed rulemaking on January 5, 1998, to amend 
part 708 (63 FR 374). DOE believes these existing laws and programs are 
adequate for hearing and resolving employee complaints of reprisals for 
actions involving health or safety violations and other violations of 
law.
    One commenter objected to proposed section 711.6(b)(9), which would 
require that the operations office manager develop a mechanism for co-
workers, supervisors, and managers to communicate concerns about PAP 
individuals' suitability for nuclear explosive duties. The commenter 
thinks a rule that obligates workers to share adverse information about 
co-workers with management will create distrust in the workplace.
    The balance struck in the final rule between protection of 
individual rights and reporting of safety concerns is dictated by the 
nature of the work carried out at facilities or areas subject to the 
PAP. Employees in the PAP work with, or have access to, nuclear 
explosives, and an accident could result in severe injuries to 
personnel, loss of life, or damage to the environment. Therefore, it is 
necessary to require individuals in the PAP, as a condition of their 
employment, to report behavior or information about other employees 
that may raise a concern about an individual's ability to perform 
nuclear explosive duties in a safe and reliable manner. Moreover, PAP 
individuals must expect that other employees will report such 
information about them, and they are required to report such 
information about themselves. Section 711.5(b)(2) provides that 
individuals who choose to work in the PAP must sign an agreement to 
participate and comply with PAP requirements.
    While DOE has not made the change requested to section 711.6(b)(9), 
DOE has revised section 711.6(b)(5) to limit the persons who have 
access to information in a PAP individual's Personnel Security File.
    DOE also received public comment on proposed section 711.9(b), 
which is a non-exclusive list of conditions and behavior that may raise 
PAP concerns and lead to removal of an individual from nuclear 
explosive duties. One commenter stated that some of the conditions or 
behavior listed in proposed section 711.9(b) are highly subjective and 
may be used by vindictive employees or managers to have employees 
removed from the PAP. The safety-sensitive nature of nuclear explosive 
duties requires that DOE grant supervisors latitude to decide if an 
individual's behavior or condition warrants temporary removal from the 
PAP pending a determination of suitability. The behavior and conditions 
listed in section 711.9(b) are illustrative of behavior or conditions 
that could cause a supervisor to question a PAP individual's ability to 
perform nuclear explosive duties in a safe and reliable manner. It is 
not possible to foreclose the possibility that a person would 
vindictively, or even falsely, provide derogatory information to a 
supervisor. It is important to recognize that temporary removal is a 
routine, but vital, protective measure to ensure the safety of 
personnel at these facilities. Moreover, under this final rule, 
temporary removal is followed by an elaborate process for fairly 
resolving concerns about an individual's suitability for the PAP.
    Another commenter objected to proposed section 711.9(b)(2), 
concerning conduct ``that is illegal or results in arrest or 
conviction,'' on the ground that DOE supervisors generally are not 
trained to determine what conduct is illegal. The commenter asked that 
the provision be limited to convictions. DOE has not accepted the 
suggestion to limit this provision to evidence of a conviction because 
an arrest for certain criminal activity could raise a concern about an 
individual's suitability for the PAP. However, DOE has revised section 
711.9(b)(2) in the final rule by replacing the word ``illegal'' with 
the words ``warrants referral for a criminal investigation.'' This 
change eliminates the requirement for a conclusion of law by the 
supervisor.

[[Page 48063]]

3. Procedures for Temporary Removal, Reinstatement in the PAP, and 
Denial or Revocation of PAP Certification
    Two commenters objected to the omission in proposed section 
711.12(b) of any deadline for completion of the PAP certifying 
official's evaluation and decision regarding the suitability of an 
individual who has been removed from nuclear explosive duties. DOE does 
not think it is desirable to place a time limit on the PAP certifying 
official's evaluation and suitability determination. The amount of time 
required to gather pertinent data and reach a decision regarding 
suitability for nuclear explosive duties will vary depending on the 
information or allegations that led to removal. DOE does not think the 
absence of a time limit will cause an individual to be in ``limbo'' for 
an extended time, as one commenter suggested. The need for the 
individual's services and the fact that removal does not affect the 
employee's pay or benefits are incentives for both the individual's 
employer and PAP officials to resolve the issues as quickly as 
possible.
    Two commenters argued that an individual removed from nuclear 
explosive duties should be given a copy of the evaluation prepared by 
the PAP certifying official. The proposed section 711.12(d) already 
would require that the operations office manager prepare a written 
decision that includes the reasons and factual basis for the decision. 
DOE has revised the rule to clarify that the individual shall be given 
a copy of the operations office manager's reasons and factual support. 
Further, DOE has revised the rule to provide that an individual removed 
from nuclear explosive duties is entitled to a copy of the PAP 
certifying official's evaluation, unless the operations office manager 
determines that the release of that document or portions thereof, may 
be withheld under an exemption of the Privacy Act or the Freedom of 
Information Act.
    Two commenters objected to proposed sections 711.12(g) and (h) 
because those provisions would require an individual who receives an 
initial decision from the operations office manager to choose either 
reconsideration by the operations office manager or a certification 
review hearing. In the commenters' view, an employee who chooses 
reconsideration is unfairly penalized by loss of the right to have a 
certification review hearing. DOE has not changed the rule in response 
to these comments because allowing individuals to request both 
reconsideration by the operations office manager and a certification 
review hearing could unduly prolong the resolution of PAP certification 
issues.
    The request for reconsideration provided in section 711.12(g)(2) 
and the certification review hearing under section 711.14 are 
dissimilar processes. The request for reconsideration procedure gives 
the individual an opportunity to provide to the operations office 
manager relevant information and statements on the matters in question. 
An individual may feel this opportunity is all that is needed, or may 
choose this informal process in order to obtain a quick administrative 
decision that, if unfavorable, could be challenged in a court 
proceeding. The certification hearing process, on the other hand, 
allows the individual to submit evidence on the relevant matters 
through presentation of witness testimony and cross-examination. Some 
individuals may decide that this option, although more costly, will be 
most effective in protecting their interests. An adverse decision 
resulting from either procedure may be appealed to the Assistant 
Secretary for Defense Programs and, ultimately, to a court. DOE 
believes the procedures established in the final rule adequately 
protect individual rights and, therefore, the final rule does not allow 
an individual to request both reconsideration and a certification 
review hearing.
    A commenter objected to proposed section 711.14(c)(3), which 
permits the certification review hearing officer to receive and 
consider certain classified information that may be adverse to an 
individual without permitting the individual to cross-examine the 
source of the statement or information. These procedures, which are 
narrowly limited, originate in Executive Order No. 10865, 
``Safeguarding Classified Information Within Industry,'' reprinted as a 
note to 50 U.S.C. 435. They were included in the Personnel Assurance 
Program chapter of DOE Order No. 5610.11, ``Nuclear Explosive Safety,'' 
and similar provisions are included in 10 CFR part 710, ``Criteria and 
Procedures for Determining Eligibility for Access to Classified Matter 
or Special Nuclear Material.'' DOE has retained section 711.14(c)(3) in 
the final rule because these exceptions to cross-examination are 
longstanding and necessary to protect the national security.
    The same commenter objected to proposed section 711.15, which deals 
with the hearing officer's report and recommendation, because it does 
not make the hearing officer's submission binding on the operations 
office manager. The commenter argues that this process violates due 
process and fundamental fairness. DOE has not changed the final rule to 
make the hearing officer's report and recommendation binding on the 
operations office manager under section 711.12(h). It is DOE's view 
that an evidentiary hearing presided over by an independent hearing 
officer, followed by an opportunity to appeal the operations office 
manager's decision to the Assistant Secretary for Defense Programs, 
constitutes a fair administrative process for resolving issues related 
to PAP certification.

B. Subpart B: Medical Assessments for PAP Certification/Recertification

    DOE received no public comments on proposed sections 711.20--
711.34, which cover the general applicability, purpose and scope of 
subpart B, definitions, and responsibilities and authorities of PAP 
officials. DOE has, after further consideration, made a number of minor 
changes to these sections. These changes include moving the definitions 
from section 711.22 to section 711.3; adding ``physical'' to the list 
in section 711.21; and deleting the requirement to participate as a 
member of the hostage negotiation team from section 711.31(c)(6).
    DOE proposed in section 711.40 general medical standards that must 
be met by individuals certified in the PAP. Proposed section 711.40 
(a)--(f) lists conditions or behavior that may, depending on the 
results of a medical assessment, disqualify an individual from 
performing nuclear explosive duties. One commenter pointed out that 
inclusion of the word ``past'' in proposed section 711.40(c), referring 
to use of illegal drugs, conflicts with the 5-year rule established by 
section 711.5. DOE agrees with this comment and has revised section 
711.40(c) accordingly.
    DOE received one comment on proposed section 711.41, which would 
establish requirements applicable to the PAP medical assessment 
process. The commenter stated that proposed section 711.41(d), which 
would require use of a generally accepted, self-reporting psychological 
inventory tool every third year in recertification medical assessments, 
would be inconsistent with the 2-year cycle for medical assessments for 
protective force personnel under 10 CFR part 1046. DOE plans to propose 
amendments to part 1046 in the near future, and expects that any 
inconsistency created by adoption of a 3-year cycle in this final rule 
will be eliminated by that rulemaking. All personnel who currently meet 
the 2-year psychological testing requirements of part 1046, as it 
currently exists, will

[[Page 48064]]

meet the psychological testing requirements of this rule.
    DOE proposed in section 711.42 requirements for detecting and 
acting with regard to positive indications of drug abuse. DOE received 
a comment on proposed section 711.42(d), which would provide that an 
individual whose certification has been revoked may be reinstated in 
the PAP if the person successfully completes a SOMD-approved drug 
rehabilitation program and is subject to SOMD-directed unannounced 
tests for illegal drugs and counseling for 3 years. The commenter 
stated that such random drug testing may not be allowed by local 
collective bargaining agreements. DOE has not changed section 711.42 
because the restrictions on random drug testing at DOE sites in 10 CFR 
part 707 do not apply to the situation covered in this section of the 
rule. Under today's rule, an individual whose PAP certification is 
revoked may be reinstated in the PAP if he or she accepts the 
conditions of the SOMD-approved drug rehabilitation program. Section 
711.42(d) establishes unannounced drug testing as a component of such a 
program and, in order to take advantage of the rehabilitation 
opportunity, the individual must agree to the testing.
    DOE received comments on proposed section 711.44 concerning medical 
assessment for alcohol use disorder. DOE proposed provisions that would 
prohibit alcohol consumption by PAP individuals within the 8-hour 
period immediately preceding nuclear explosive duties, and bar an 
individual from performing nuclear explosive duties for a minimum of 24 
hours if a confirmatory breath alcohol test (BAT) result is at or above 
0.02 percent alcohol concentration. These provisions are consistent 
with regulations promulgated by certain operating agencies of the 
Department of Transportation (DOT) to implement the Omnibus 
Transportation Employee Testing Act of 1991, Pub. L. No. 102-143, Title 
V. See, e.g., the Federal Highway Administration's requirements in 49 
CFR 382.505(b).
    Commenters representing security guards stated that they have no 
objection to the prohibition on alcohol consumption during the 8-hour 
period preceding scheduled work. However, they strongly oppose 
enforcing the rule against employees who are required by their employer 
to report to work without advance notice. According to these 
commenters, the 8-hour ``no drinking'' rule, coupled with the 
prohibition on working for 24 hours if the BAT exceeds 0.02 percent, 
would impair the ability of employers to meet staffing requirements. 
The President of the Independent Guard Association of Nevada testified 
in a public hearing on the rule that, according to the medical 
department of a DOE prime contractor, a 225-pound person who stops 
drinking at 7:00 p.m. after having consumed three beers earlier on the 
same day could have an alcohol concentration of 0.02 percent at 6:00 
a.m. the following day. Thus, if that person were forced to report for 
work early the second day, he or she would be taken off the work 
schedule for 24 hours even though the individual was not impaired. 
Transcript of Las Vegas Hearing, page 8 (testimony of Michael 
Cleghorn). Written comments suggested that employees could easily avoid 
unscheduled overtime work by drinking intentionally. This, they stated, 
would cause severe problems for employers because downsizing of 
protective forces limits their ability to find replacements.
    DOE agrees with the commenters that it would be inappropriate to 
enforce an 8-hour ``no drinking'' rule against employees who are called 
up for unscheduled work. Therefore, the final rule is revised to limit 
its application to scheduled work. DOE will rely on breath alcohol 
testing under revised section 711.44(c) to ensure that employees 
required to report for unscheduled work do not exceed permissible 
alcohol concentration levels.
    DOE does not agree with commenters that the 0.02 percent alcohol 
concentration standard is too rigid and not indicative of possible 
impairment. On February 15, 1994, DOT operating agencies promulgated 
alcohol testing regulations for the aviation, motor carrier, rail, 
transit, and pipeline transportation industries. The common preamble 
that DOT published for those rules discusses research and 
recommendations regarding the effects of blood alcohol that have been 
produced by expert bodies, including the National Highway 
Transportation Safety Administration, the National Transportation 
Safety Board, the National Academy of Sciences, and the Transportation 
Research Board. Common Rule, Final Rules on Limitation of Alcohol Use 
by Transportation Workers, 59 FR 7302, 7318-19 (Feb. 15, 1994). DOT 
concluded from this body of knowledge that while impairment of 
performance of safety-sensitive functions was clearly increased above 
0.04 percent alcohol concentration, there was evidence of some 
impairment at levels as low as 0.02, the lowest level that can be 
reliably measured. Alcohol affects individuals differently and some 
individuals are impaired by any blood alcohol. DOT, based on this 
evidence, adopted a standard that requires removal of an employee from 
a safety-sensitive position at any alcohol concentration of 0.02 
percent or greater. The job tasks performed by individuals assigned 
nuclear explosive duties, including protective force personnel, are 
just as safety-sensitive as jobs performed by workers in the 
transportation industries. Therefore, DOE retains the 0.02 standard in 
the final rule.
    In the final rule, DOE responds to the commenters' staffing 
concerns by providing more flexibility for dealing with employees who 
report for unscheduled work and test above 0.02 percent alcohol 
concentration. As proposed, section 711.44(e) would provide that an 
individual whose confirmatory BAT result is at or above 0.02 percent 
shall not be allowed to perform nuclear explosive duties for a minimum 
of 24 hours. In the final rule, DOE has renumbered proposed section 
711.44(e) as section 711.44(f) and revised it to provide that in the 
case of unscheduled work, an employee whose test result is at or above 
0.02 percent will be given the opportunity--but will not be required--
to take another test when it is expected that the BAT would produce a 
result below the 0.02 percent alcohol concentration level. The employee 
then will be permitted to perform nuclear explosive duties if a result 
below 0.02 percent is obtained. DOE believes this approach will 
alleviate the problem envisioned by the commenters.
    One commenter sought guidance on the identity and qualifications of 
persons who conduct breath alcohol testing of PAP individuals. The 
final rule specifies that alcohol tests are to be administered by a 
certified technician using an evidential-grade breath analysis device 
that conforms to National Highway Traffic Safety Administration model 
specifications for devices approved for use at the 0.02/0.04 percent 
concentration levels. DOE received comments recommending greater 
restrictions on the persons who conduct alcohol testing, but the 
commenter did not provide any evidence or factual support that would 
warrant additional restrictions.
    In the final rule, DOE has added a new section 711.44(g) to clarify 
that PAP individuals whose jobs require commercial drivers licenses 
continue to be subject to DOT regulations on misuse of alcohol. They 
are subject to sanctions in regulations promulgated by the Federal 
Highway Administration, but DOE will take disciplinary action against 
such employees under its own authority.

[[Page 48065]]

    Proposed section 711.45 sets forth requirements that apply to 
maintenance of medical records. DOE received comments from the U.S. 
Equal Employment Opportunity Commission (EEOC) on this section. At the 
request of the EEOC, DOE has revised proposed section 711.45(a) to 
clarify the long standing DOE practice that medical records must be 
kept separate from other personnel records. DOE also has added language 
to section 711.45(b), which was recommended by EEOC, to refer to the 
possible application to DOE contractors of the Americans with 
Disabilities Act and section 503 of the Rehabilitation Act, including 
the confidentiality provisions in the Department of Labor's 
implementing regulations. In addition, section 711.45(c)(3) provides 
that psychological records must be kept separate from other medical 
records.

III. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this rulemaking has not been reviewed by the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget (OMB).

B. Review Under Executive Order 12612

    Executive Order 12612, ``Federalism,'' 52 FR 41685 (October 30, 
1987) requires that regulations, rules, legislation, and other policy 
actions be reviewed for any substantial direct effect on States, on the 
relationship between the National Government and the States, or in the 
distribution of power and responsibilities among various levels of 
government. If there are substantial effects, then the Executive Order 
requires the preparation of a federalism assessment to be used in all 
decisions involved in promulgating and implementing policy action. The 
Department has analyzed this rulemaking in accordance with the 
principles and criteria contained in Executive Order 12612, and has 
determined there are no federalism implications that would warrant the 
preparation of a federalism assessment. The rule published today will 
apply to DOE and DOE contractor personnel employed at defense nuclear 
facilities. It will not have a substantial direct effect on States, the 
relationship between the States and Federal Government, or the 
distribution of power and responsibilities among various levels of 
government.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires 
preparation of an initial regulatory flexibility analysis for every 
rule which by law must be proposed for public comment, unless the 
agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
Today's rule will affect a total of approximately 3,300 DOE and DOE 
contractor employees working at Government-owned or leased facilities. 
Only a small number of the employees work for a small entity. In 
addition, the DOE is formalizing a program that has been in place at 
DOE nuclear explosive facilities for over 30 years, so the economic 
impact of this proposed rule would be negligible. DOE certified in the 
notice of proposed rulemaking that the rule would not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities. Public comment on this issue was invited, but none was 
received. DOE affirms its certification that the rule will not have a 
significant economic impact on a substantial number of small entities.

D. Review Under the National Environmental Policy Act

    The final rule codifies and amends the PAP program, which has been 
in existence pursuant to DOE directives for approximately 30 years, and 
it relates to personnel qualifications that will have no impact on the 
environment. Categorical exclusions in the Department's regulations 
implementing the National Environmental Policy Act of 1969, 42 U.S.C. 
4321 et seq., apply to this rulemaking. The applicable categorical 
exclusions are A1 and A5 in Appendix A to Subpart D, 10 CFR part 1021. 
The Department has therefore determined that neither an environmental 
assessment nor an environmental impact statement is required for this 
rulemaking.

E. Review Under the Paperwork Reduction Act

    This rule does not contain a collection of information that 
requires the approval of the OMB under the Paperwork Reduction Act, 44 
U.S.C. 3501, et seq. OMB has defined the term ``information'' to 
exclude certifications, consents, and acknowledgments that entail only 
minimal burden. 5 CFR 1320.3(h)(1).

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this rule meets the relevant standards of Executive 
Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq., 
requires a federal agency to perform a detailed assessment of the costs 
and benefits of any rule imposing a federal mandate with costs to 
state, local or tribal governments, or to the private sector, of $100 
million or more. This final rule codifies existing procedures and 
standards that relate to certification of DOE personnel and DOE 
contractor personnel for nuclear explosive duties at DOE facilities. 
The rule does not impose a federal mandate requiring preparation of an 
assessment under the Unfunded Mandate Reform Act of 1995.

H. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of this final rule prior to its effective date. The report 
will state that it has been determined that the rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

[[Page 48066]]

List of Subjects in 10 CFR Part 711

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Government contracts, Government employees, Health, Nuclear safety, and 
Occupational safety and health.

    Issued in Washington, DC on August 31, 1998.
Victor H. Reis,
Assistant Secretary for Defense Programs.

    For the reasons set forth in the preamble, Chapter III of title 10 
of the Code of Federal Regulations is amended by adding new Part 711 to 
read as set forth below:

PART 711--PERSONNEL ASSURANCE PROGRAM (PAP)

Subpart A--PAP Certification/Recertification, Temporary Removal/
Reinstatement, and Revocation of PAP Certification

Sec.
711.1  Purpose.
711.2  Applicability.
711.3  Definitions.
711.4  General.
711.5  General requirements.
711.6  PAP certification process.
711.7  Maintenance of PAP personnel list.
711.8  PAP training requirements.
711.9  Supervisor reporting.
711.10  Individual reporting.
711.11  Immediate removal from nuclear explosive duties.
711.12  Action following removal from duties.
711.13  Appointment of a certification review hearing officer and 
legal counsel.
711.14  Certification review hearing.
711.15  Hearing officer's report and recommendation.
711.16  Appeal of the operations office manager's final decision.

Subpart B--Medical Assessments for PAP Certification/Recertification 
General Provisions

711.20  Applicability.
711.21  Purpose and scope.

Responsibilities and Authorities

711.30  Designated physician.
711.31  Designated psychologist.
711.32  Site Occupational Medical Director (SOMD).
711.33  Director, Office of Occupational Medicine and Medical 
Surveillance.
711.34  Operations office managers; Director, Transportation 
Safeguards Division.

Medical Assessment Process and Standards

711.40  Medical standards for certification.
711.41  Medical assessment process.
711.42  Medical assessment for drug abuse.
711.43  Evaluation of hallucinogen use.
711.44  Medical assessment for alcohol use disorder.
711.45  Maintenance of medical records.

    Authority: 42 U.S.C. 2201(p), 7191.

Subpart A--PAP Certification/Recertification, Temporary Removal/
Reinstatement, and Revocation of PAP Certification


Sec. 711.1   Purpose.

    The purpose of this part is to establish a Personnel Assurance 
Program (PAP) in DOE. The PAP is a human reliability program designed 
to ensure that individuals assigned to nuclear explosive duties do not 
have emotional, mental, or physical incapacities that could result in a 
threat to nuclear explosive safety. The PAP establishes the 
requirements and responsibilities for screening, selecting, and 
continuously evaluating employees assigned to or being considered for 
assignment to nuclear explosive duties.


Sec. 711.2  Applicability.

    (a) This part applies to DOE Headquarters and field elements and 
DOE contractors that manage, oversee, or conduct nuclear explosive 
operations and associated activities, and to DOE and DOE contractor 
employees assigned to nuclear explosive duties.
    (b) This part does not apply to responses to unplanned events 
(e.g., Accident Response Group activities), which are addressed in DOE 
5530-Series Orders and DOE Order 151.1, ``Comprehensive Emergency 
Management System.''


Sec. 711.3  Definitions.

    The following definitions are used in this part:
    Access means proximity to a nuclear explosive that affords a person 
the opportunity to tamper with it or to cause it to detonate.
    Alcohol use disorder means a maladaptive pattern in which a 
person's intake of alcohol is great enough to damage or adversely 
affect physical or mental health or personal, social, or occupational 
function; or when alcohol has become a prerequisite to normal function.
    Certification means the formal action the PAP certifying official 
takes which permits an individual to be placed in the PAP and perform 
PAP duties. This action is taken once it has been determined an 
individual meets the requirements for certification under this part.
    Contractor means the contractor and subcontractors at all tiers.
    Designated physician means a licensed doctor of medicine or 
osteopathy who has been nominated by the SOMD and, with the concurrence 
of the Director, Office of Occupational Medicine and Medical 
Surveillance, approved by the operations office manager, to provide 
professional expertise in the area of occupational medicine as it 
relates to the PAP.
    Designated psychologist means a licensed Ph.D. or Psy.D. clinical 
psychologist who has been nominated by the SOMD and, with the 
concurrence of the Director, Office of Occupational Medicine and 
Medical Surveillance, approved by the operations office manager, to 
provide professional expertise in the area of psychological assessment 
as it relates to the PAP.
    Diagnostic and Statistical Manual for Mental Disorders means the 
current version of the American Psychiatric Association's manual 
containing definitions of psychiatric terms and diagnostic criteria of 
mental disorders.
    Director, Office of Occupational Medicine and Medical Surveillance, 
means the chief occupational medical officer of the DOE with 
responsibility for policy and quality assurance for DOE occupational 
medical programs.
    Drug abuse means use of an illegal drug or misuse of legal drugs.
    Flashback means a transient, spontaneous, and often unpredictable 
recurrence of aspects of a person's use of a hallucinogen that involves 
dramatic alteration of emotional state, perception, sensation, and 
behavior.
    Hallucinogen means any hallucinogenic drug or substance that has 
the potential to cause flashbacks.
    Illegal drug means a controlled substance, as specified in 
Schedules I through V of the Controlled Substances Act, 21 U.S.C. 811, 
812. The term ``illegal drug'' does not apply to the use of a 
controlled substance in accordance with the terms of a valid 
prescription, or other uses authorized by Federal law.
    Impaired or impairment means a decrease in functional capacity of a 
worker caused by a physical, mental, emotional, substance abuse, or 
behavioral disorder.
    Job task analysis means a statement outlining the essential 
functions of a job and the potential exposures and hazards of an 
individual's specific job.
    Medical assessment means an evaluation of a PAP individual's 
present health status and health risk factors by means of: (1) a 
medical history review; (2) the job task analysis; (3) a physical 
examination; (4) appropriate laboratory tests and measurements; and (5) 
appropriate psychological and psychiatric evaluations.
    Medical Review Officer (MRO) means a licensed doctor of medicine or 
osteopathy who has knowledge of illegal drug use and other substance 
abuse disorders and has appropriate medical training to interpret drug 
test results.

[[Page 48067]]

The MRO may also be the designated physician and/or SOMD.
    Nuclear explosive means an assembly containing fissionable and/or 
fusionable materials and main charge high explosive parts or 
propellants capable of producing a nuclear detonation (e.g., a nuclear 
weapon or test device).
    Nuclear explosive area means any area that contains a nuclear 
explosive or collocated pit and main charge high explosive parts.
    Nuclear explosive duties means work assignments that allow custody 
of a nuclear explosive or access to a nuclear explosive device or area.
    Occupational medical program means a DOE program that: (1) assists 
in the maintenance, monitoring, protection, and promotion of employee 
health through the skills of occupational medicine, psychology, and 
nursing; and (2) maintains a close interface with allied health 
disciplines, including industrial hygiene, health physics, and safety.
    Operations office manager means the manager of a DOE operations 
office.
    PAP certifying official or certifying official means the operations 
office manager or the manager's designee who certifies, recertifies, or 
reviews the circumstances of an individual's removal from nuclear 
explosive duties.
    PAP individual means an individual being considered for assignment 
or assigned to perform nuclear explosive duties.
    PAP official means any DOE employee who is involved in the PAP as a 
manager or supervisor or involved in the certification/recertification 
process.
    Recertification means the formal action the PAP certifying official 
takes annually, not to exceed 12 months, which permits an individual to 
remain in the PAP and perform PAP duties. This action is taken once it 
has been determined an individual still meets the requirements of this 
part.
    Reinstatement means the action the PAP certifying official takes 
once it has been determined an individual who has been temporarily 
removed from the PAP meets the certification requirements of this part 
and can be returned to the PAP and PAP duties.
    Semi-structured interview means an interview by a designated 
psychologist who has the latitude to vary the focus and content of the 
questions depending upon the interviewee's responses.
    Site Occupational Medical Director/SOMD means the physician 
responsible for the overall direction and operation of the site 
occupational medical program.


Sec. 711.4  General.

    (a) PAP certification is required of each individual assigned to 
nuclear explosive duties in addition to any other job qualification 
requirements that may apply.
    (b) Nothing in this part shall be construed as prohibiting 
contractors from establishing stricter employment standards for 
employees who are nominated to DOE for certification or recertification 
in the PAP.
    (c) The failure of an individual to be certified or recertified in 
the PAP shall not, in itself, reflect on the individual's suitability 
for assignment to other duties or, in itself, be a cause for loss of 
pay or other benefits or other changes in employment status.
    (d) Personnel management actions based on consideration of 
technical competence and other job qualification requirements shall be 
considered only if they are based on behavior that also affects an 
individual's suitability for the PAP.
    (e) Except for the functions in Sec. 711.12 (d), (e) and (h), an 
operations office manager may delegate PAP functions to a deputy 
manager, assistant manager, division director, and/or area office 
manager.


Sec. 711.5  General requirements.

    (a) Each PAP individual shall be certified in the PAP before being 
assigned to nuclear explosive duties and shall be recertified annually, 
not to exceed 12 months between recertifications.
    (b) To be certified or recertified in the PAP, an individual shall:
    (1) Have an active DOE Q access authorization based upon a 
background investigation;
    (2) Sign an acknowledgment and agreement to participate in the PAP 
on a form provided by DOE;
    (3) Be interviewed and briefed on the importance of the nuclear 
explosive duty assignment and PAP objectives and requirements.
    (4) Successfully complete an annual medical assessment for 
certification and recertification in accordance with Subpart B of this 
part;
    (5) Not have used any hallucinogen in the preceding 5 years and 
shall not have experienced a flashback resulting from the use of any 
hallucinogen more than 5 years before applying for certification or 
recertification;
    (6) If a DOE employee, be tested for illegal drugs at least once 
each calendar year in an unannounced and unpredictable manner under DOE 
Order 3792.3, ``Drug-Free Federal Workplace Testing Implementation 
Program,''and be subject to testing for cause or reasonable suspicion 
or after an accident or an unsafe practice involving the individual 
and;
    (7) If a DOE contractor employee, be tested for illegal drugs at 
least once each calendar year in an unannounced and unpredictable 
manner under 10 CFR part 707, ``Workplace Substance Abuse Programs at 
DOE Sites,'' and be subject to testing for cause or reasonable 
suspicion or after an accident or an unsafe practice involving the 
individual.
    (c) If an individual in the PAP refuses to submit a urine sample 
for illegal drug testing or attempts deception by substitution, 
adulteration, or other means, DOE immediately shall remove the 
individual from nuclear explosive duties.
    (d) An individual will be denied PAP certification, or shall have 
his or her certification revoked, immediately, if use of an illegal 
drug is confirmed through drug testing, as provided in Sec. 711.42 of 
Subpart B.
    (e) An individual whose PAP certification is revoked for the use of 
illegal drugs will be considered for reinstatement in the PAP if the 
individual successfully completes an SOMD approved drug rehabilitation 
program, as provided in Sec. 711.42 of Subpart B and a PAP position is 
available for which the individual is qualified.
    (f) If an individual chooses not to participate in the PAP, he or 
she shall sign a refusal of consent form provided by DOE.


Sec. 711.6  PAP certification process.

    (a) The PAP certifying official shall determine each PAP 
individual's suitability for certification or recertification in the 
PAP and review the circumstances concerning an individual's removal 
from nuclear explosive duties and possible reinstatement.
    (b) Operations office managers who exercise jurisdiction over PAP 
certification shall issue instructions for implementing the PAP. At a 
minimum, the instructions shall provide for:
    (1) Conducting a supervisory interview of each PAP individual, 
during which the supervisor shall determine the individual's 
willingness to accept the requirements and conditions of the PAP;
    (2) Ensuring that each PAP individual undergoes a medical 
assessment under subpart B of this part;
    (3) Ensuring that the personnel security file (PSF) of each PAP 
individual is reviewed by a DOE employee trained to identify PAP

[[Page 48068]]

concerns before the individual is certified or recertified;
    (4) Ensuring that other available personnel data or information 
about each PAP individual is reviewed by an employee trained to 
identify PAP concerns before the individual is certified or 
recertified;
    (5) Allowing the exchange of information about a PAP individual 
among responsible DOE officials during the certification, 
recertification, or certification review process. Any mental or 
behavioral issues which could impact an individual's ability to perform 
PAP duties may be provided to the SOMD, designated physician, and/or 
designated psychologist who have been previously identified for receipt 
of this information by the operations office manager or designee. In 
rare instances when information from an employee's PSF may be relevant, 
such information may be shared only with prior written approval of the 
manager or his/her designee. The Director, Office of Security Affairs, 
must be notified of the manager's decision to share PSF information, as 
well as the specific information provided and a brief summary of the 
circumstances. This notice should be provided as soon as practicable. 
Contractor medical personnel will not be allowed to view the PSF. 
Contractor medical personnel must not share any information obtained 
from the PSF with anyone who is not a DOE PAP official;
    (6) Requesting certification or recertification of a contractor 
employee when the contractor has determined, on the basis of all 
available information, that the individual is suitable for the PAP. The 
contractor requesting certification or recertification shall, in 
writing, assure the PAP certifying official that all PAP certification 
requirements have been met;
    (7) Addressing any requirement not met during the certification/
recertification process, and requiring a contractor to provide any 
additional personal data or information in its possession that may have 
a bearing on the certification/recertification of an individual;
    (8) Documenting certification and recertification of each PAP 
individual on a form provided by DOE;
    (9) Developing a mechanism for co-workers, supervisors, and 
managers to communicate concerns about a PAP individual's suitability 
for nuclear explosive duties;
    (10) Ensuring that PAP concerns are reported to an appropriate 
official, as specified in Secs. 711.9 and 711.10, for timely 
resolution;
    (11) Providing that the processing of a request for certification 
or recertification of an individual is terminated if the individual is 
no longer being considered for assignment to nuclear explosive duties 
or is no longer assigned to such duties. If, subsequently, the 
individual is considered for assignment to nuclear explosive duties, 
the certification or recertification process must be completely redone; 
and
    (12) Using recertification to return an individual whose 
certification has exceeded 12 months, and thus expired, to the PAP, 
once it has been determined an individual still meets the requirements 
of this part.


Sec. 711.7  Maintenance of PAP personnel list.

    Operations office managers who exercise jurisdiction over PAP 
certification and recertification shall establish procedures for 
developing and maintaining a current list of DOE and contractor 
personnel certified in the PAP. The list is to be used for program 
administration and is not an authorization for personnel to perform 
nuclear explosive duties. The list shall be promptly updated and 
verified on a quarterly basis under the supervision of the operations 
office manager.


Sec. 711.8  PAP training requirements.

    (a) Operations office managers shall ensure that each individual 
who is assigned to nuclear explosive duties receives special training 
in PAP objectives, policies, and requirements.
    (b) Operations office managers shall ensure that DOE and contractor 
supervisory personnel and PAP certifying officials receive training 
that includes:
    (1) A detailed explanation of nuclear explosive duties and nuclear 
explosive safety;
    (2) Instruction on PAP objectives, policies, and requirements;
    (3) Instruction on the early identification of behavior that may 
indicate a degradation in reliability or judgment; and
    (4) Special emphasis on the importance of timely reporting of any 
PAP concern to appropriate personnel.
    (c) Operations office managers shall ensure that medical personnel 
who perform medical assessments receive, before performing PAP 
responsibilities, training that includes:
    (1) A detailed explanation of nuclear explosive duties and nuclear 
explosive safety;
    (2) Instruction on PAP objectives, policies, and requirements;
    (3) An orientation on nuclear explosive duties and the work 
environment applicable to that of the PAP employee;
    (4) Annual professional training on current issues and concerns 
relative to psychological assessment; and
    (5) Special emphasis on the importance of timely reporting of any 
PAP concern to appropriate personnel.
    (d) Operations office managers shall establish and maintain a 
system for documenting the training received by PAP-certified 
individuals, supervisors of PAP personnel, and medical personnel with 
PAP-related duties.


Sec. 711.9  Supervisor reporting.

    (a) Supervisors shall document and report to a PAP official and the 
SOMD, if appropriate, any observed or reported behavior or condition of 
an individual that causes the supervisor to have a reasonable belief 
that the individual's ability to perform assigned tasks in a safe and 
reliable manner may be impaired.
    (b) Behavior and conditions that could indicate unsuitability for 
the PAP include, but are not limited to, the following:
    (1) Psychological or physical disorders that impair performance of 
assigned duties;
    (2) Conduct that warrants referral for a criminal investigation or 
results in arrest or conviction;
    (3) Indications of deceitful or delinquent behavior;
    (4) Attempted or threatened destruction of property or life;
    (5) Suicidal tendencies or attempted suicide;
    (6) Use of illegal drugs or the abuse of legal drugs or other 
substances;
    (7) Alcohol use disorder;
    (8) Recurring financial irresponsibility;
    (9) Irresponsibility in performing assigned duties;
    (10) Inability to deal with stress, or the appearance of being 
under unusual stress;
    (11) Failure to understand work directives, hostility or aggression 
toward fellow workers or authority, uncontrolled anger, violation of 
safety or security procedures, or repeated absenteeism; and
    (12) Significant behavioral changes, moodiness, depression, or 
other evidence of loss of emotional control.


Sec. 711.10  Individual reporting.

    (a) An individual in the PAP shall report any observed or reported 
behavior or condition of another PAP individual that could indicate the 
individual's unsuitability for nuclear explosive duties, including the 
behaviors and conditions listed in

[[Page 48069]]

Sec. 711.9, to a supervisor, the SOMD, or other PAP official.
    (b) An individual in the PAP shall report any behavior or 
condition, including any behavior or condition listed in Sec. 711.9, 
that may affect his or her own suitability for nuclear explosive duties 
to a supervisor, the SOMD, or other PAP official.


Sec. 711.11  Immediate removal from nuclear explosive duties.

    (a) A supervisor who has a reasonable belief that an individual in 
the PAP is not suitable for nuclear explosive duties shall immediately 
remove that individual from those duties pending a determination of the 
individual's suitability. The supervisor shall, at a minimum:
    (1) Require the individual to stop performing nuclear explosive 
duties;
    (2) Take action to ensure the individual is denied access to 
nuclear explosive areas; and
    (3) Notify the individual, in writing, the reason for these 
actions.
    (b) A supervisor who removes an individual from nuclear explosive 
duties shall notify the PAP certifying official of the action and the 
reasons that led to the removal of the individual from nuclear 
explosive duties as soon as possible, and shall forward this 
information, in writing, to the PAP certifying official within 24 hours 
from the time the individual is removed from duties.
    (c) Immediate removal of an individual from nuclear explosive 
duties is an interim, precautionary action and does not constitute a 
determination that the individual is not fit for nuclear explosive 
duties. Removal from nuclear explosive duties shall not, in itself, be 
cause for loss of pay or other benefits or other changes in employment 
status.


Sec. 711.12  Action following removal from duties.

    (a) Temporary removal. If a PAP certifying official receives a 
supervisor's written notice of the immediate removal of an individual 
from nuclear explosive duties, the certifying official shall direct the 
removal of the individual from PAP duties pending an evaluation and 
determination regarding the individual's suitability for nuclear 
explosive duties. The applicable DOE personnel security office shall be 
notified if removal is based on a security concern.
    (b) Evaluation. The PAP certifying official shall conduct an 
evaluation of the circumstances or information that led the supervisor 
to remove the individual from nuclear explosive duties. The PAP 
certifying official shall prepare a written report of the evaluation 
that includes the certifying official's determination regarding the 
individual's suitability for continuing PAP certification.
    (c) PAP certifying official's action. (1) If the PAP certifying 
official determines that an individual who has been removed temporarily 
from nuclear explosive duties continues to meet the requirements for 
certification in the PAP, the certifying official shall:
    (i) Notify the operations office manager of the determination; and
    (ii) Notify the individual's supervisor of the determination and 
direct that the individual be allowed to return to nuclear explosive 
duties.
    (2) If the PAP certifying official determines that an individual 
who has been temporarily removed from PAP duties does not meet the 
requirements for certification, the certifying official shall refer the 
matter to the operations office manager for action. The certifying 
official shall submit the evaluation report to the operations office 
manager and a recommendation that the individual's PAP certification be 
revoked.
    (d) Operations office manager's initial decision. After receipt of 
a PAP certifying official's evaluation report and recommendation for 
revoking an individual's PAP certification, the operations office 
manager shall take one of the following actions:
    (1) Direct that the individual be reinstated in the PAP and, in 
writing, explain the reasons and factual basis for the action;
    (2) Direct the revocation of the individual's PAP certification 
and, in writing, explain the reasons and factual basis for the 
decision; or
    (3) Direct continuation of the temporary removal pending completion 
of specified actions (e.g., medical assessment, security evaluation, 
treatment) to resolve the concerns about the individual's suitability 
for the PAP.
    (e) In the event of a revocation, pursuant to Sec. 711.12(d)(2), or 
suspension pursuant to Sec. 711.12(d)(3), the operations office manager 
shall provide the individual a copy of the PAP certifying official's 
evaluation report. The manager may withhold such report, or portions 
thereof, to the extent that he/she determines that the report, or 
portions thereof, may be exempt from access by the individual under the 
Privacy Act or the Freedom of Information Act.
    (f) Reinstatement after completion of specified actions. An 
individual directed by the operations office manager to take specified 
actions to resolve PAP concerns shall be reevaluated by the certifying 
official after those actions have been completed. After considering the 
PAP certifying official's evaluation report and recommendation, the 
operations office manager shall direct either:
    (1) Reinstatement of the individual in the PAP; or
    (2) Revocation of the individual's PAP certification.
    (g) Notification of operations office manager's initial decision. 
The operations office manager shall send by certified mail, return 
receipt requested, a written decision, including rationale, to an 
individual who is denied certification or recertification. The 
operations office manager's decision shall be accompanied by 
notification to the individual, in writing, of the procedures in 
paragraph (g) of this section and Secs. 711.14--711.16 pertaining to 
reconsideration or a hearing on the operation office manager's 
decision.
    (h) Request for reconsideration or certification review hearing. An 
individual who receives notification of an operation office manager's 
decision to deny or revoke his or her PAP certification may choose one 
of the following options:
    (1) Take no action;
    (2) Submit a written request to the operations office manager for 
reconsideration of the decision to deny or revoke certification. The 
request shall include the individual's response to any information that 
gave rise to a concern about the individual's suitability for nuclear 
explosive duties. The statement shall be signed under oath or 
affirmation before a notary public, and must be sent by certified mail 
to the operations office manager within 20 working days after the 
individual received notice of the operations office manager's decision; 
or
    (3) Submit a written request to the operations office manager for a 
certification review hearing. The request for a hearing must be sent by 
certified mail to the operations office manager within 20 working days 
after the individual receives notice of the operations office manager's 
decision.
    (i) Operations office manager's decision after reconsideration or 
hearing. (1) If an individual requests reconsideration by the 
operations office manager but not a certification review hearing, the 
operations office manager shall, within 20 working days after receipt 
of the individual's request, send by certified mail, return receipt 
requested, to the individual a final decision as to suitability based 
upon the individual's response and other relevant

[[Page 48070]]

information available to the operations office manager.
    (2) If an individual requests a certification review hearing, the 
operations office manager shall decide the matter after receipt of the 
certification review hearing officer's report and recommendation, as 
provided in Sec. 711.15. The operations office manager shall, within 20 
working days after receiving the hearing officer's report and 
recommendation, send by certified mail, return receipt requested, the 
operations office manager's final decision to the individual, 
accompanied by a copy of the hearing officer's report and 
recommendation, and the transcript of the certification review 
proceedings.


Sec. 711.13  Appointment of a certification review hearing officer and 
legal counsel.

    (a) After receiving an individual's request for a certification 
review hearing, the operations office manager shall promptly appoint a 
certification review hearing officer. The hearing officer shall:
    (1) Be a DOE attorney or a hearing official from the DOE Office of 
Hearings and Appeals and have a DOE Q access authorization; and
    (2) Have no prior involvement in the matter or be directly 
supervised by any person who is involved in the matter.
    (b) The operations office manager shall also appoint a DOE attorney 
as counsel for DOE, who shall assist the hearing officer by:
    (1) Obtaining evidence;
    (2) Arranging for the appearance of witnesses;
    (3) Examining and cross-examining witnesses; and
    (4) Notifying the individual in writing, at least 7 working days in 
advance of the hearing, of the scheduled place, date, and hour where 
the hearing will take place.


Sec. 711.14  Certification review hearing.

    (a) The certification review hearing officer shall conduct the 
proceedings in an orderly and impartial manner to protect the interests 
of both the Government and the individual.
    (b) An individual who requests a certification review hearing shall 
have the right to appear personally before the hearing officer; to 
present evidence in his or her own behalf, through witnesses or by 
documents, or by both; and be accompanied and represented at the 
hearing by counsel of the individual's choosing or any other person and 
at the individual's own expense.
    (c) In conducting the proceedings, the certification review hearing 
officer shall:
    (1) Receive all information relating to the individual's fitness 
for PAP certification through witnesses or documentation;
    (2) Ensure that the individual is permitted to offer information in 
his or her behalf; to call, examine, and except as provided in 
paragraph (c)(3) of this section, cross-examine witnesses and other 
persons who have made written or oral statements, and to present and 
examine documentary evidence;
    (3) Have the option to receive and consider oral or written 
statements adverse to the individual without affording the individual 
the opportunity to cross-examine the person making the statement in 
either of the following circumstances:
    (i) The substance of the statement was contained in the 
individual's personnel security file and the head of the Federal agency 
supplying the statement certifies that the person who furnished the 
information is a confidential informant who has been engaged in 
obtaining intelligence information for the Government, and that the 
disclosure of that person's identity would substantially harm the 
national security; or
    (ii) The substance of the statement was contained in the 
individual's personnel security file and the Assistant Secretary for 
Defense Programs or designee for that particular purpose has 
determined, after considering information furnished by the 
investigative agency concerning the reliability of the person and the 
accuracy of the statement, that --
    (A) The statement appears to be reliable and material;
    (B) Failure of the hearing officer to receive and consider such 
statement would substantially harm the national security; and
    (C) The person who furnished the information cannot appear to 
testify due to death or severe illness, or due to some other good cause 
as determined only by the Assistant Secretary for Defense Programs;
    (4) Ensure that if the procedures in paragraph (c)(3) of this 
section are used, the individual is given a description of the 
information, which shall be as comprehensive and detailed as the 
national security permits. In addition, if a statement is received 
under paragraph (c)(3)(ii) of this section, the identity of the person 
making the statement and the information to be considered shall be made 
available to the individual. The hearing officer shall give appropriate 
consideration to the fact that the individual did not have an 
opportunity to cross-examine such person;
    (5) Require the testimony of the individual and all witnesses be 
given under oath or affirmation;
    (6) Request that the Assistant Secretary for Defense Programs issue 
subpoenas for witnesses to attend the hearing or for the production of 
specific documents or other physical evidence; and
    (7) Ensure that a transcript of the certification review 
proceedings is made.


Sec. 711.15  Hearing officer's report and recommendation.

    Not later than 30 working days after the conclusion of the hearing, 
the certification review hearing officer shall forward written 
findings, a supporting statement of reasons, and recommendation 
regarding the individual's suitability for certification or 
recertification in the PAP to the operations office manager. The 
hearing officer's report and recommendation shall be accompanied by a 
copy of the record of the proceedings.


Sec. 711.16  Appeal of the operations office manager's final decision.

    (a) An individual who has been denied PAP certification or 
recertification, or whose certification has been revoked, may appeal 
the operations office manager's decision to the Assistant Secretary for 
Defense Programs. The appeal must be sent to the Assistant Secretary 
for Defense Programs, by certified mail, no later than 20 working days 
after the individual receives the operations office manager's decision.
    (b) An individual who appeals an operations office manager's 
decision to the Assistant Secretary for Defense Programs must submit 
the appeal and a written supporting statement to the Assistant 
Secretary for Defense Programs through the operations office manager 
and the Deputy Assistant Secretary for Military Application and 
Stockpile Management. The individual must also submit:
    (1) A copy of the operations office manager's final decision and 
any related documentation; and
    (2) If a certification review hearing was conducted, a copy of the 
hearing officer's report and recommendation and the record of the 
proceedings.
    (c) Within 20 working days of the receipt of an individual's appeal 
and supporting documents, the Assistant Secretary for Defense Programs 
shall review all of the information and issue a written decision in the 
matter. The decision of the Assistant Secretary for Defense Programs 
shall be final for DOE.
    (d) If an individual does not appeal to the Assistant Secretary for 
Defense Programs within the time specified in paragraph (a) of this 
section, the

[[Page 48071]]

operations office manager's decision shall be the final decision.

Subpart B--Medical Assessments for PAP Certification and 
Recertification

General Provisions


Sec. 711.20  Applicability.

    The purpose of this subpart is to establish standards and 
procedures for conducting medical assessments of DOE and DOE contractor 
employees in the PAP.


Sec. 711.21  Purpose and scope.

    The standards and procedures set forth in this part are necessary 
for DOE to:
    (a) Identify the presence of any mental, emotional, physical, or 
behavioral characteristics or conditions that present or are likely to 
present an unacceptable impairment in judgment, reliability, or fitness 
of an individual to perform nuclear explosive duties safely and 
reliably;
    (b) Facilitate the early diagnosis and treatment of disease or 
impairment and to foster accommodation and rehabilitation of a disabled 
individual with the intent of returning the individual to assigned 
nuclear explosive duties;
    (c) Determine what functions an employee may be able to perform and 
to facilitate the proper placement of employees; and (d) Provide for 
continuing monitoring of the health status of employees in order to 
facilitate early detection and correction of adverse health effects, 
trends, or patterns.

Responsibilities and Authorities


Sec. 711.30  Designated physician.

    (a) The designated physician shall be qualified to provide 
professional expertise in the area of occupational medicine as it 
relates to the PAP. The designated physician may serve in other 
capacities, including Medical Review Officer.
    (b) The designated physician shall:
    (1) Be a physician who is a graduate of an accredited school of 
medicine or osteopathy;
    (2) Have a valid, unrestricted state license to practice medicine 
in the state where PAP medical assessments occur;
    (3) Have met the applicable PAP training requirements; and (4) Be 
eligible for DOE access authorization.
    (c) The designated physician shall be responsible for the medical 
assessments of PAP individuals, including determining which components 
of the medical assessments may be performed by other qualified 
personnel. Although a portion of the assessment may be performed by 
another physician, physician's assistant, or nurse practitioner, the 
designated physician remains responsible for:
    (1) Supervising the evaluation process;
    (2) Interpreting the results of evaluations;
    (3) Documenting medical conditions that may disqualify an 
individual from the PAP;
    (4) Providing medical assessment information to the designated 
psychologist to assist in determining psychological fitness;
    (5) Determining, in conjunction with DOE, if appropriate, the 
location and date of the next required medical assessment, thereby 
establishing the period of certification; and (6) Signing a 
recommendation as to the medical fitness of an individual for 
certification or recertification.
    (d) The designated physician shall immediately report to the SOMD 
any of the following about himself or herself:
    (1) Initiation of an adverse action by any state medical licensing 
board or any other professional licensing board;
    (2) Initiation of an adverse action by any federal regulatory board 
since the last designation;
    (3) The withdrawal of the privilege to practice by any institution;
    (4) Being named a defendant in any criminal proceedings (felony or 
misdemeanor) since the last designation;
    (5) Being evaluated or treated for alcohol use disorder or drug 
dependency or abuse since the last designation; or
    (6) Occurrence of a physical or mental health condition since the 
last designation that might affect his or her ability to perform 
professional duties.


Sec. 711.31  Designated psychologist.

    (a) The designated psychologist shall report to the SOMD and shall 
determine the psychological fitness of an individual to participate in 
the PAP. The results of this evaluation shall be provided only to the 
designated physician or the SOMD.
    (b) The designated psychologist shall:
    (1) Hold a doctoral degree from a clinical psychology program that 
includes a 1-year clinical internship approved by the American 
Psychological Association or an equivalent program;
    (2) Have accumulated a minimum of 3 years postdoctoral clinical 
experience with a major emphasis in psychological assessment;
    (3) Have a valid, unrestricted state license to practice clinical 
psychology in the state where PAP medical assessments occur;
    (4) Have met the applicable PAP training requirements; and
    (5) Be eligible for DOE access authorization .
    (c) The designated psychologist shall be responsible for the 
performance of all psychological evaluations of PAP individuals, and 
otherwise as directed by the SOMD. In addition, the designated 
psychologist shall:
    (1) Designate which components of the psychological evaluation may 
be performed by other qualified personnel;
    (2) Upon request of management, assess the psychological fitness of 
personnel for PAP duties in specific work settings and recommend 
referrals as indicated;
    (3) Conduct and coordinate educational and training seminars, 
workshops, and meetings to enhance PAP individual and supervisor 
awareness of mental health issues;
    (4) Establish personal workplace contact with supervisors and 
workers to help them identify psychologically distressed PAP 
individuals; and
    (5) Make referrals for psychiatric, psychological, substance abuse, 
personal or family problems, and monitor the progress of individuals so 
referred.
    (d) The designated psychologist shall immediately report to the 
SOMD any of the following about himself or herself:
    (1) Initiation of an adverse action by any state medical licensing 
board or any other professional licensing board;
    (2) Initiation of an adverse action by any federal regulatory board 
since the last designation;
    (3) The withdrawal of the privilege to practice by any institution;
    (4) Being named a defendant in any criminal proceeding (felony or 
misdemeanor) since the last designation;
    (5) Being evaluated or treated for alcohol use disorder or drug 
dependency or abuse since the last designation; or
    (6) Occurrence of a physical or mental health condition that might 
affect his or her ability to perform professional duties since the last 
designation.


Sec. 711.32  Site Occupational Medical Director (SOMD).

    (a) The SOMD shall nominate a physician to serve as the designated 
physician and a clinical psychologist to serve as the designated 
psychologist. The nominations shall be sent through the operations 
office to the Director, Office of Occupational Medicine and Medical 
Surveillance. Each nomination shall describe the nominee's relevant

[[Page 48072]]

training, experience, and licensure, and shall include a curriculum 
vitae and a copy of the nominee's current state or district license.
    (b) The SOMD shall submit a renomination report biennially through 
the operations office manager to the Director, Office of Occupational 
Medicine and Medical Surveillance. This report shall be submitted at 
least 60 days before the second anniversary of the initial designation 
or of the last redesignation, whichever applies. The report shall 
include:
    (1) A statement evaluating the performance of the designated 
physician and designated psychologist during the previous designation 
period;
    (2) A summary of all PAP-relevant training, including postgraduate 
education, that the designated physician and designated psychologist 
has completed since the last designation; and
    (3) A copy of the valid, unrestricted state or district license of 
the designated physician and designated psychologist.
    (c) The SOMD shall submit, annually, to the Director, Office of 
Occupational Medicine and Medical Surveillance, through the operations 
office manager, a written report summarizing PAP medical activity 
during the previous year. The SOMD shall comply with any DOE directives 
specifying the form or contents of the annual report.
    (d) The SOMD shall investigate any reports of problems regarding a 
designated physician or designated psychologist, and the SOMD may 
suspend either official from PAP-related duties. If the SOMD suspends 
either official, the SOMD shall notify the Director, Office of 
Occupational Medicine and Medical Surveillance and the operations 
office manager, and provide supporting documentation and reasons for 
the action.


Sec. 711.33  Director, Office of Occupational Medicine and Medical 
Surveillance.

    The Director, Office of Occupational Medicine and Medical 
Surveillance, shall:
    (a) Develop policies, standards, and guidance related to the 
medical aspects of the PAP, including the psychological testing 
inventory to be used;
    (b) Review the qualifications of designated physicians and 
designated psychologists, and concur or nonconcur in their designations 
by sending a statement to the responsible program office and the 
operations office, with an informational copy to the SOMD;
    (c) Provide technical assistance on medical aspects of the PAP to 
all DOE elements and DOE contractors; and
    (d) Concur or nonconcur with the medical bases of decisions 
rendered on appeals of PAP certification decisions.


Sec. 711.34  Operations office managers; Director, Transportation 
Safeguards Division.

    Operations office managers and the Director, Transportation 
Safeguards Division, shall approve, upon the nomination of the SOMD and 
concurrence of the Director, Office of Occupational Medicine and 
Medical Surveillance, physicians and psychologists to serve as 
designated physicians and designated psychologists.

Medical Assessment Process and Standards


Sec. 711.40  Medical standards for certification.

    To be certified in the PAP, an individual shall be free of any 
mental, emotional, or physical condition or behavioral characteristics 
or conditions that present or are likely to present an unacceptable 
impairment in judgement, reliability, or fitness of an individual to 
perform nuclear explosive duties safely and reliably. The designated 
physician, with the assistance of the designated psychologist, shall 
determine the existence or nature of any of the following:
    (a) Physical or medical disabilities such as visual acuity, 
defective color vision, impaired hearing, musculoskeletal deformities, 
and neuromuscular impairment;
    (b) Mental disorders or behavioral problems, including substance 
use disorders, as defined in the Diagnostic and Statistical Manual of 
Mental Disorders;
    (c) Use of illegal drugs or the abuse of legal drugs or other 
substances, as identified by self-reporting, or by medical or 
psychological evaluation or testing;
    (d) Alcohol use disorder;
    (e) Threat of suicide, homicide, or physical harm; or
    (f) Cardiovascular disease, endocrine disease, cerebrovascular or 
other neurologic disease, or the use of drugs for the treatment of such 
conditions that may adversely affect the judgment or ability of an 
individual to perform assigned duties in a safe and reliable manner.


Sec. 711.41  Medical assessment process.

    (a) The designated physician, under the supervision of the SOMD, 
shall be responsible for the medical assessment of PAP individuals. In 
carrying out this responsibility, the designated physician or the SOMD 
shall integrate the medical evaluations, available drug testing 
results, psychological evaluations, any psychiatric evaluations, and 
any other relevant information to determine an individual's overall 
medical qualification for assigned duties.
    (b) Employers shall provide a job task analysis or detailed 
statement of duties for each PAP individual to both the designated 
physician and the designated psychologist before each medical 
assessment and psychological evaluation. PAP medical assessments and 
psychological evaluations shall not be performed if a job task analysis 
or detailed statement of duties has not been provided.
    (c) The designated physician shall consider a PAP individual's 
fitness for nuclear explosive duties at the time of each medical 
contact, including:
    (1) Medical assessments for initial certification, annual 
recertification, and evaluations for reinstatement following temporary 
removal from the PAP;
    (2) Intermediate evaluations, including job transfer evaluations, 
evaluations upon self-referral, and referral by management;
    (3) Routine medical contacts, including routine return-to-work 
evaluations and occupational and nonoccupational health counseling 
sessions; and
    (4) A review of current, legal drug use.
    (d) Psychological evaluations shall be conducted:
    (1) For initial certification. This psychological evaluation 
consists of a generally accepted, self-reporting psychological 
inventory tool approved by the Director, Office of Occupational 
Medicine and Medical Surveillance, and a semi-structured interview.
    (2) For recertification. This psychological evaluation consists of 
a semi-structured interview.
    (3) Every third year. The medical assessment for recertification 
shall include a generally accepted self-reporting psychological 
inventory tool approved by the Director, Office of Occupational 
Medicine and Medical Surveillance.
    (4) Additional psychological or psychiatric evaluations may be 
required by the SOMD when needed to resolve PAP concerns.
    (e) Following absences requiring return-to-work evaluations under 
applicable DOE directives, the designated physician, with assistance 
from the designated psychologist, shall determine whether a 
psychological evaluation is necessary.
    (f)(1) Except as provided in paragraph (f)(2) of this section, the 
designated physician shall forward the completed medical assessment of 
a PAP individual

[[Page 48073]]

to the SOMD, who shall send a recommendation based on the assessment 
simultaneously to the individual's PAP administrative organization and 
to the PAP certifying official.
    (2) If the designated physician determines that a currently 
certified individual no longer meets the PAP standards, the designated 
physician shall immediately, orally, inform the PAP certifying official 
and the PAP individual's administrative organization, following up in 
writing as appropriate.
    (g) Only the designated physician, subject to informing the SOMD, 
shall make a medical recommendation for return to work and work 
accommodations for PAP individuals.
    (h) The following documentation is required for routine use in the 
PAP after treatment of an individual for any disqualifying condition:
    (1) A summary of the diagnosis, treatment, current status, and 
prognosis to be furnished to the designated physician;
    (2) The medical opinion of the designated physician advising the 
individual's supervisor on whether the individual is able to return to 
work in either a PAP or non-PAP capacity; and
    (3) Any periodic monitoring plan approved by the designated 
physician, the designated psychologist, and the SOMD, that is used to 
evaluate the reliability of the employee.


Sec. 711.42  Medical assessment for drug abuse.

    (a) Except as otherwise provided by this section, a medical 
assessment for illegal drug use by DOE employees shall be conducted 
under DOE Order 3792.3, ``Drug-Free Federal Workplace Testing 
Implementation Program,'' or any successor order issued by DOE.
    (b) Except as otherwise provided by this section, a medical 
assessment for illegal drug use by DOE contractor employees shall be 
conducted under 10 CFR part 707, ``Workplace Substance Abuse Programs 
at DOE Sites.''
    (c) In each case of drug abuse, the SOMD, in consultation with the 
designated psychologist, shall evaluate the individual for evidence of 
psychological impairment and make a recommendation to the PAP 
certifying official as to the individual's reliability.
    (d) If an individual successfully completes an SOMD-approved drug 
rehabilitation program, DOE may reinstate the individual in the PAP 
based on the SOMD's follow-up evaluation and recommendation. The 
individual reinstated will be subject to SOMD-directed unannounced 
tests for illegal drugs and relevant counseling for 3 years.


Sec. 711.43  Evaluation for hallucinogen use.

    If DOE determines that a PAP individual has used any hallucinogen, 
the individual shall not be eligible for certification or 
recertification unless:
    (a) Five years have passed since the last use of the hallucinogen;
    (b) A medical evaluation, including a psychological test, is 
performed to determine that the individual is reliable; and
    (c) The individual has a record of acceptable job performance and 
observed behavior.


Sec. 711.44  Medical assessment for alcohol use disorder.

    (a) If alcohol abuse is suspected, an individual shall be examined 
for evidence of alcohol use disorder. If the examination produces 
evidence of alcohol use disorder, additional evaluation shall be 
conducted, which may include psychological evaluation.
    (b) Alcohol consumption is prohibited within an 8-hour period 
preceding scheduled work and during the performance of nuclear 
explosive duties.
    (c) Individuals in the PAP, including individuals who report for 
unscheduled work, may be tested for cause or reasonable suspicion of 
alcohol use or after an accident or an unsafe practice involving the 
individual.
    (d) DOE shall implement or require the contractor to implement 
procedures that will ensure that persons called in to perform 
unscheduled work are fit to perform the tasks assigned.
    (e) Tests for alcohol must be administered by a certified Breath 
Alcohol Technician using an evidential-grade breath analysis device 
approved for use at the 0.02/0.04 cut-off levels that conforms to the 
Department of Transportation's (DOT) National Highway Traffic Safety 
Administration (NHTSA) model specifications (58 FR 48705, September 17, 
1993), and the most recent ``Conforming Products List'' issued by NHTSA 
which are available from the Office of Traffic Safety Programs, 
Washington, DC.
    (f) An individual whose confirmatory breath alcohol test result is 
at or above an alcohol concentration of 0.02 percent shall not be 
allowed to perform nuclear explosive duties until the individual's 
alcohol concentration is below 0.02 percent using an evidential-grade 
breath analysis device described in section 711.44(e).
    (g) Individuals subject to alcohol testing under DOT regulations 
shall be subject to the sanctions promulgated by the Federal Highway 
Administration rule. Appropriate disciplinary action will be taken 
under DOE's authority.
    (h) Individuals refusing to submit to a breath alcohol test shall 
be immediately removed from nuclear explosive duties.
    (i) The SOMD, in conjunction with the designated psychologist, 
shall evaluate each case of alcohol use disorder for evidence of 
psychological impairment and provide the PAP certifying official a 
recommendation as to the individual's reliability.
    (j) After successfully completing an SOMD-approved alcohol 
treatment program, DOE may reinstate an individual in the PAP based on 
the SOMD's follow-up evaluation and recommendation.


Sec. 711.45  Maintenance of medical records.

    (a) Medical records produced or used in the PAP certification 
process shall be collected and maintained on separate forms and in 
separate medical files, and be treated as a confidential medical 
record.
    (b) The medical records of PAP individuals shall be maintained in 
accordance with the Privacy Act, 5 U.S.C. 552a and DOE implementing 
regulations in 10 CFR Part 1008; the Department of Labor's regulations 
on access to employee exposure and medical records, 29 CFR 1910.1020; 
and applicable DOE directives. DOE contractors also may be subject to 
Sec. 503 of the Rehabilitation Act, 29 U.S.C. 793, and its implementing 
rules, including confidentiality provisions at 29 CFR 60-741.23(d).
    (c) The psychological record of a PAP individual shall be 
considered a component of the medical record. The psychological record 
shall:
    (1) Contain any clinical reports, test protocols and data, notes of 
employee contacts and correspondence, and other information pertaining 
to an individual's contact with a psychologist;
    (2) Be stored in a secure location in the custody of the designated 
psychologist;
    (3) Be kept separate from other medical record documents, with 
access limited to the SOMD, the designated physician, the designated 
psychologist, or other persons who are authorized by law or regulation 
to have access; and
    (4) Be retained indefinitely.
    (d) The records of alcohol and drug testing shall be maintained in 
accordance with 42 CFR part 2, ``Confidentiality of Alcohol and Drug 
Abuse Patient Records,'' and 10 CFR

[[Page 48074]]

part 707, ``Workplace Substance Abuse Programs at DOE Sites.''

[FR Doc. 98-23885 Filed 9-4-98; 8:45 am]
BILLING CODE 6450-01-P