[Federal Register Volume 69, Number 15 (Friday, January 23, 2004)]
[Rules and Regulations]
[Pages 3213-3233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1316]



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  Federal Register / Vol. 69, No. 15 / Friday, January 23, 2004 / Rules 
and Regulations  

[[Page 3213]]



DEPARTMENT OF ENERGY

10 CFR Parts 710, 711, and 712

[Docket No. SO-RM-00-HRP]
RIN 1992-AA29


Human Reliability Program

AGENCY: Office of Security, Department of Energy.

ACTION: Final rule.

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

SUMMARY: The Department of Energy (DOE or Department) today is 
publishing a final rule to establish the Human Reliability Program. 
This rule consolidates the Personnel Security Assurance Program (PSAP) 
and Personnel Assurance Program (PAP) into a single program, which 
incorporates all the important facets of each into a coherent, 
comprehensive, and concise regulation. The PSAP was an access 
authorization program for individuals who applied for or occupied 
certain positions critical to the national security. The PSAP required 
an initial and annual supervisory review, medical assessment, 
management evaluation, and DOE personnel security review of all 
applicants or incumbents. The PAP was a nuclear explosive safety 
program for individuals who occupied positions that involved hands-on 
work with, or access to, nuclear explosives. The PAP used many of the 
same evaluations as the PSAP to ensure that employees assigned to 
nuclear explosive duties did not have a mental/personality disorder or 
physical condition that could result in an accidental or unauthorized 
detonation of nuclear explosives.

EFFECTIVE DATE: This rule is effective April 22, 2004.

FOR FURTHER INFORMATION CONTACT: Ms. Lynn Gebrowsky, Security Policy 
Staff, Office of Security, Department of Energy, 1000 Independence 
Avenue, SW., Washington, D.C., 20585, (301) 903-3200, or Mr. Charles 
Westfall, Office of Nuclear Weapons Surety, Department of Energy, 1000 
Independence Avenue, SW., Washington, D.C. 20585, (301) 903-4051.
    For information concerning Subpart B, Medical Standards, contact: 
Mr. Kenneth O. Matthews, Office of Health, Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585, (301) 903-6398.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Public Comments
    A. Section-by-Section Review and Discussion of Public Comments
    B. Other Public Comments
III. Regulatory Review
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. National Environmental Policy Act
    D. Paperwork Reduction Act
    E. Executive Order 13132
    F. Unfunded Mandates Reform Act of 1995
    G. Executive Order 12988
    H. Executive Order 13084
    I. Treasury and General Government Appropriations Act, 1999
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Executive Order 13211
    L. Congressional Notification

I. Background

    Pursuant to the Atomic Energy Act of 1954 (the AEA), the DOE owns, 
leases, operates or supervises activities at facilities in various 
locations in the United States. Many of these facilities are involved 
in researching, testing, producing, disassembling, or transporting 
nuclear explosives, which, when combined with Department of Defense 
delivery systems, become nuclear weapons systems. These facilities are 
often involved in other activities that affect the national security. 
Compromise of these and other DOE facilities would severely damage 
national security. To guard against such compromise, DOE has 
implemented security and safety reliability programs designed to ensure 
that individuals who occupy positions affording unescorted access to 
certain materials, facilities, and programs meet the highest standards 
of reliability as well as physical and mental suitability.
    In 1989, as part of its ongoing efforts to protect national 
security, DOE established regulations at 10 CFR part 710, subpart B, 
``Criteria and Procedures for Establishment of the Personnel Security 
Assurance Program and Determinations of an Individual's Eligibility for 
Access to a Personnel Security Assurance Program Position.'' These 
Personnel Security Assurance Program (PSAP) regulations apply to 
individuals who occupy positions throughout the DOE complex that 
involve access to, or responsibility for, special nuclear material or 
who otherwise have the potential to cause unacceptable damage to 
national security. In 1998, DOE established regulations at 10 CFR part 
711, ``Personnel Assurance Program (PAP).'' The PAP codified 
longstanding certification procedures for individuals who occupy 
positions that involve hands-on work with, or access to, nuclear 
explosives.
    As the PSAP and PAP evolved, significant similarities developed in 
the objectives, requirements, and administration of the two programs. 
DOE has concluded that the monetary and time requirements of 
administering two very similar programs with similar goals, the 
protection of special nuclear material and nuclear explosives, could 
not be justified as consistent with good management practices when 
compared to the benefits of consolidation.
    On July 17, 2002, DOE published a notice of proposed rulemaking 
(NOPR) to establish a Human Reliability Program (HRP) (67 FR 46912). 
Subpart A of the proposed rule contained the provisions that 
established the HRP and the HRP certification requirements, while 
Subpart B contained the medical standards provisions required for HRP 
certification. The NOPR proposed to establish a single unified HRP 
management structure that incorporated all of the important elements of 
the PSAP and PAP into one comprehensive regulation. By adopting a 
uniform set of requirements applicable to both PSAP and PAP employees, 
DOE has developed a stronger, more efficient, and more effective human 
reliability program for personnel who occupy these positions.
    The HRP, published today as 10 CFR part 712, is designed to protect 
the national security through a system of continuous evaluation of 
individuals working in positions affording unescorted access to certain 
materials, facilities, and programs. The purpose of this continuous 
evaluation is to identify, in a timely manner, individuals whose 
judgment may be impaired by physical,

[[Page 3214]]

mental/personality disorders; the use of illegal drugs or the abuse of 
legal drugs or other substances; the abuse of alcohol; or any other 
condition or circumstance that may represent a reliability, safety, or 
security concern.
    The HRP requires that all individuals who work in positions 
affording unescorted access to certain materials, facilities, and 
programs be certified as meeting the highest standards of reliability 
and physical, mental/personality suitability before such access may be 
granted. An individual's certification is subject to immediate review 
in the event that the individual's behavior indicates a reliability or 
security risk to nuclear explosive operations or national security. 
During the review the individual will be removed from assigned duties. 
This immediate removal is an interim, precautionary action and does not 
constitute a final determination of reliability or access authorization 
status. Individuals who are removed from HRP duties for reasons that 
are not related to security are entitled to resolve these issues 
through a formal procedure outlined in Sec.  712.19 through Sec.  
712.23 of today's final rule. If the removal is based on a security 
concern, 10 CFR part 710, subpart A, provides procedures for resolving 
issues concerning eligibility for an access authorization. These 
regulations require that the individual be given a written statement of 
the issues, an opportunity to respond, including an opportunity for a 
hearing before a DOE Hearing Officer, and an opportunity to have the 
opinion of the hearing officer reviewed at a higher level before a 
final determination is made.
    Most of the provisions of the HRP rule are taken directly from the 
PSAP and PAP regulations. However, the HRP rule has several new 
requirements applicable to all HRP positions and some new requirements 
for certain HRP positions. These include:
    1. Random alcohol testing for all individuals in HRP positions. The 
decision by DOE to require random alcohol testing for all individuals 
in HRP positions is supported by scientific research that shows that 
cognitive and physical task performance decreases as a result of 
alcohol abuse (Hartwell et al., ``Workplace alcohol testing programs: 
Prevalence and trends,'' Monthly Labor Review, V121, 1998; Mangione et 
al., ``Employee drinking practices and work performance,'' Journal of 
Studies on Alcohol, V60, 1999; Ames et al., ``The relationship of 
drinking and hangovers to workplace problems: An empirical study,'' 
Journal of Studies on Alcohol V58, 1997; Yesavage and Leirer, 
``Hangover effects on aircraft pilots 14 hours after alcohol ingestion: 
A preliminary report,'' American Journal of Psychiatry, V143, 1986).
    DOE believes that the misuse or abuse of alcohol represents a risk 
that is incompatible with the nature of work performed by individuals 
in HRP positions. DOE has a compelling interest in ensuring that 
individuals who hold HRP positions are functioning at the highest level 
of reliability because they have unescorted access to certain 
materials, facilities, and programs. This interest outweighs the 
diminished privacy expectations resulting from intrusions caused by a 
carefully tailored alcohol testing program. The government must ensure 
the unimpaired judgment of persons who perform hands-on work with, or 
have access to, nuclear explosives or have access to, or responsibility 
for, special nuclear material. It also must ensure that the persons 
charged with the security of these research and production facilities 
do not pose a risk to the life of the citizenry by the use of deadly 
force resulting from impaired perception or judgment.
    The part of the HRP regulation pertaining to random alcohol testing 
is consistent with regulations of other Federal agencies charged with 
overseeing critical activities, and specifically the regulations of the 
Department of Transportation. On February 15, 1994, the Department of 
Transportation (DOT) operating agencies promulgated alcohol testing 
regulations for the aviation, motor carrier, rail, transit, and 
pipeline transportation industries. In the common preamble to those 
regulations, the operating agencies discussed the research regarding 
the effects of blood alcohol and recommendations of expert bodies, 
including the National Highway Traffic Safety Administration (NHTSA), 
the National Transportation Safety Board, the National Academy of 
Sciences, and the Transportation Research Board (59 FR 7302, 7318-19). 
DOT concluded, based on this body of research, that while impairment of 
performance of safety-sensitive functions clearly was increased above 
0.04 percent blood 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; indeed, 
even a minimal level of blood alcohol impairs some individuals. Based 
on this evidence, DOT adopted a standard that requires removal from a 
safety-sensitive position of an employee with an alcohol concentration 
of 0.02 percent or greater. The DOT regulations requiring random 
alcohol testing already apply to some DOE and contractor employees at 
certain sites.
    The Nuclear Regulatory Commission (NRC) also considers the misuse 
of alcohol to be a serious and pervasive workplace problem (Barnes et 
al., ``Fitness for Duty in the Nuclear Power Industry: A Review of 
Technical Issues,'' 1988, NUREG/CR-5227, U.S. Nuclear Regulatory 
Commission, Washington, D.C.; Moore et al., ``Fitness for Duty in the 
Nuclear Power Industry: A Review of Technical Issues,'' 1989, NUREG/CR-
5227, Supplement 1, U.S. Nuclear Regulatory Commission, Washington, 
DC). The NRC requires random alcohol testing in its fitness-for-duty 
program contained in 10 CFR part 26.
    The job tasks performed by individuals in the HRP are equally or 
more sensitive than those performed by workers in the transportation 
and the nuclear power industries, and the HRP tasks have added 
security-sensitive elements. An individual in the HRP who misuses or 
abuses alcohol has the potential capability to (1) cause an accidental 
or unauthorized detonation of a nuclear explosive; (2) misuse deadly 
force in guarding or transporting special nuclear materials or nuclear 
weapons; (3) cause a criticality incident involving special nuclear 
material; or (4) misuse classified information. DOE believes that 
random alcohol testing will enhance the safety and reliability aspects 
of the HRP and deter the use of alcohol on the job, as well as during a 
period prior to reporting for work. Individuals in HRP positions also 
will be subject to testing if they are involved in an incident, unsafe 
practice, or occurrence as defined in Sec.  712.3 of the regulation, or 
if there is reasonable suspicion that their judgment may be impaired.
    2. Eight-hour abstinence rule for alcohol. In the past, individuals 
reporting for nuclear explosive duties under PAP have been prohibited 
from drinking alcohol during the eight hours before their work 
assignments. This eight-hour abstinence requirement is retained in the 
HRP for those employees and is now applicable to employees in specific 
positions to be designated by the National Nuclear Security 
Administration (NNSA) Administrator or his or her designee, or the 
appropriate Lead Program Secretarial Officer, or his or her designee or 
the Manager of the Chicago, Idaho, Oak Ridge, Richland, and Savannah 
River Operations Offices; Manager of the Rocky Flats Office; Manager of 
the Pittsburgh Naval Reactors Office and the

[[Page 3215]]

Schenectady Naval Reactors Office; Site Office Managers for Livermore, 
Los Alamos, Sandia, Y-12, Nevada, Pantex, Kansas City, and Savannah 
River; Director of the Service Center, Albuquerque; Assistant Deputy 
Administrator for the Office of Secure Transportation, Albuquerque; and 
for the Washington, DC area, the Director, Office of Security 
(hereinafter collectively referred to as the ``Manager'' in accordance 
with Sec.  712.3 of the regulation). This abstinence requirement is in 
addition to the random alcohol testing requirement.
    3. Annual Submission of Questionnaire for National Security 
Positions (QNSP), Part 2. Submission of this Questionnaire previously 
had been required only for participants in the PSAP DOE now has made 
this a requirement for all individuals in the HRP, thereby underscoring 
DOE's commitment to evaluating personnel security concerns. This annual 
requirement will assist in ensuring that HRP-certified individuals are 
reliable and trustworthy.
    4. Psychological evaluations. This requirement previously was in 
effect only for PAP individuals and now is required for all HRP 
candidates and HRP-certified individuals. The psychological evaluation, 
as part of the overall medical assessment, addresses an individual's 
mental or behavioral state as it relates to security and safety 
concerns. This evaluation includes the completion of a psychological 
assessment (test) and a semi-structured interview with the Designated 
Psychologist, or a psychologist under his or her supervision. The 
psychologist conducting the semi-structured interview has the latitude 
to vary the focus and content of questions based on the results of the 
psychological test and/or the interviewee's response to certain 
questions. Through this evaluation process, an assessment is made of 
whether the individual shows at-risk behavior or conditions that raise 
a security concern or may impact the ability to perform his or her 
duties in a safe and reliable manner. Individuals will be subject to an 
initial psychological evaluation and annual evaluations thereafter. 
Every third year individuals in an HRP position will be required to 
take another psychological assessment (test). This process will assist 
medical personnel in their efforts to monitor participants and ensure 
that individuals in HRP positions are reliable and trustworthy.
    5. Counterintelligence polygraph examinations. A 
counterintelligence-scope polygraph examination in accordance with 
DOE's Polygraph Examination Regulation, 10 CFR part 709, was required 
for individuals who occupied or applied for PAP and PSAP positions. HRP 
positions will continue to be subject to the requirements of 10 CFR 
part 709 and any subsequent revisions to that regulation. Refusal to 
submit to a polygraph examination will result in rejection of the 
initial application for, or removal from, an HRP position, consistent 
with procedures in 10 CFR part 709.

II. Discussion of Public Comments

    DOE received a total of two hundred and twelve written comments and 
forty-one oral comments during public hearings held in Albuquerque, New 
Mexico, Livermore, California, Amarillo, Texas, and Oak Ridge, 
Tennessee. DOE has carefully considered all of these comments in 
preparing this final rule.

A. Section-by-Section Review and Discussion of Public Comments

Comments Regarding Sec.  712.1 Purpose
    A commenter questioned the use of ``facilities'' and ``programs'' 
without specific definitions of these terms. The Department disagrees 
that definitions are needed because these terms are commonly used 
throughout DOE.
    The Department disagrees with a commenter's suggestion to replace 
the phrase ``or any other condition or circumstance that may be of a 
security or safety concern'' with `` * * * or by their personality or 
behavioral tendencies.'' As written, the text clearly conveys the 
intent of the rule and allows a broader assessment of individuals.
    One commenter suggested adding the term ``quality'' when using the 
terms ``safety and security.'' The Department disagrees with this 
suggestion because it adds no clarity to the sentence.
Comments Regarding Sec.  712.3 Definitions
    A number of commenters raised issues pertaining to the definitions 
section. All definitions were reviewed and several were modified for 
clarification.
    One commenter raised a question regarding the use of the 
Accelerated Access Authorization Program (AAAP) for HRP certification 
since it does not require a random alcohol test. The AAAP is a program 
for granting an interim access authorization and is not used for HRP 
certification purposes. Once individuals have successfully completed 
the AAAP, they are required to meet all of the HRP certification 
requirements including initial and random alcohol testing.
    Several commenters suggested including the term ``special 
assembly'' in the phrase ``nuclear explosive and/or Category I SNM'' in 
paragraph (2) in the definition of access and throughout the text. The 
Department disagrees that adding this term would enhance the definition 
of access; the definition as proposed covers access to ``special 
assembly.''
    A commenter indicated that the definition of alcohol abuse is 
overly broad. The Department disagrees with the commenter. The 
definition of alcohol abuse is derived from the scientific literature 
dealing with alcohol-related disorders.
    Several commenters suggested changing the definition of blood 
alcohol concentration to indicate that it is measured as a percentage. 
The text has been modified to parallel the DOT definition of alcohol 
concentration set forth at 49 CFR 40.3.
    Several other commenters noted that the definition of the 
certifying official was not consistent with the NNSA organizational 
structure. The Department concurs and the text has been changed to 
reflect the organizational structure.
    One commenter suggested that as written, the definition of 
Designated Psychologist could include a licensed person with a master's 
or bachelor's degree. The Department concurs and has changed the text 
to better define the term.
    Commenters suggested changing HRP individual to HRP candidate. The 
Department agrees this would clarify the meaning. The text has been 
changed.
    One commenter proposed a less vague definition of HRP management 
official. The Department is not making this change because the current 
definition allows sites the flexibility to identify the most 
appropriate person to be responsible for the HRP.
    Another commenter suggested revising the definition of job task 
analysis because the recommended process would be burdensome and 
require frequent updates. The Department has modified the text to 
better reflect the intent of the rule.
    One commenter suggested adding additional examples for the 
definition of occurrence. The Department believes that the definition 
is appropriate as written and does not need additional examples.
    Another commenter criticized the definition of occurrence claiming 
that it ``conflicts with itself.'' The Department believes that the 
definition is correct and covers the various aspects of an occurrence 
at its sites.

[[Page 3216]]

    A commenter questioned the term ``national security protection 
significance'' in the definition of occurrence and asked for examples 
of this term as well as the definition of ``immediate'' under 
occurrence testing in Sec.  712.15(d)(1). ``National security 
protection significance,'' also referred to as ``National Security 
Assets'' (Safeguards and Security Glossary of Terms, December 18, 
1995), refers to nuclear weapons and their design, Category I 
quantities of special nuclear material, classified information, 
sensitive information, critical facilities, and valuable government 
property. The immediate reporting requirement is based on the criteria 
set forth in DOE M 232.1-1A, ``Occurrence Reporting and Processing of 
Operations Information.''
    A commenter suggested adding a definition for psychological 
assessment or test. The Department concurs and has added new text to 
reflect this suggestion.
    One commenter suggested, in addition to defining random alcohol 
testing, the regulations should include a definition for annual 
unannounced testing. The Department does not believe that a definition 
is needed. However, after reviewing the definition for random alcohol 
testing the Department has changed the text of the definition to better 
define the term and its requirements.
    A commenter stated that the definition of safety concern is 
difficult to follow. The Department concurs and the text has been 
changed.
    Another commenter suggested adding text to the supervisor 
definition to better define matrix management situations. The 
Department concurs with this suggestion and has modified the definition 
of supervisor to reflect the suggestion.
    Several commenters suggested adding the word ``inclination'' to the 
definition for reliability. The Department disagrees with this 
suggestion because it does not enhance the current definition.
Comments Regarding Sec.  712.10 Designation of HRP Positions
    Several commenters contended the proposed provision on designation 
of HRP positions was ``broad and vague.'' The Department disagrees and 
believes that the description clearly identifies the HRP population.
    Several commenters questioned why individuals having ``access to 
information/material regarding'' weapons of mass destruction were not 
included in the HRP. While the Department recognizes the importance of 
programs pertaining to weapons of mass destruction, it believes that it 
is not appropriate to expand the HRP beyond the current PAP and PSAP 
populations, because the purpose of this rulemaking is to combine two 
programs with similar administrative requirements into one stronger, 
more efficient and more effective program.
    One commenter suggested designating positions with specific sigma 
levels as HRP positions. The Department disagrees with this suggestion 
and believes that the current position descriptions are appropriate as 
listed.
    Several commenters suggested that, since the HRP is a fitness for 
duty program, the application of procedures and requirements should be 
graded based on the job task analysis. The Department disagrees with 
this suggestion. The HRP is not a fitness for duty program. It is a 
security/safety program which includes some aspects of fitness for 
duty.
    One commenter suggested changes in the NNSA organizational 
structure make the job titles in the proposed rule incorrect. The text 
has been modified to address these changes.
Comments Regarding Sec.  712.11 General Requirements of HRP 
Certification
    One commenter asked why only security police officers could obtain 
a ``Q'' access authorization through the AAAP. The AAAP provision was 
incorporated into the PSAP to allow security police officers to assume 
their duties as soon as possible to enhance the physical security of 
the various DOE sites. The Department adopted the provision because of 
the urgent need for additional security police officers in the 
aftermath of the terrorist acts of September 11, 2001.
    A number of commenters questioned the requirement for a 
counterintelligence polygraph examination in proposed Sec.  
712.11(a)(10). This requirement was mandated by Congress in the 
National Defense Authorization Act of 2000. In response to that 
legislation, DOE issued a Polygraph Examination Regulation (10 CFR part 
709); DOE's Office of Counterintelligence is responsible for 
administering this requirement of the HRP.
    A commenter questioned the need for the requirement in proposed 
Sec.  712.11(a)(2) for providing selective service registration 
information within Part 2 of the Questionnaire for National Security 
Positions. This is a standard form used throughout the government. The 
Department cannot modify the form.
    Other commenters questioned the omission of the flashback issue in 
proposed Sec.  712.37 on evaluation for hallucinogen use. A new 
paragraph (b) has been added to Sec.  712.37 to reflect this issue.
    Several commenters questioned whether the proposed Sec.  
712.11(a)(9) random alcohol testing element of the HRP is necessary for 
security-related jobs. The Department recognizes that the consumption 
of alcohol is legal; however, the misuse and abuse of alcohol represent 
a risk that is incompatible with the nature of work performed by 
individuals in HRP positions. The Department believes that random 
alcohol testing will enhance the safety and reliability aspects of the 
HRP and deter the use of alcohol on the job as well as during the 
period immediately prior to reporting to work.
    Other commenters questioned the appropriateness of adopting 
specific components of the DOT alcohol test regulation, 49 CFR part 40, 
including: breath alcohol technician training requirements, the NHTSA 
Conforming Products List of Evidential Breath Measurement Devices, the 
specifications for alcohol used to calibrate the testing equipment, and 
the EBT manufacturer quality assurance plan. Early in the process of 
developing proposed 10 CFR part 712 for the HRP, the Department made 
the decision to use the DOT Procedures for Transportation Workplace 
Drug and Alcohol Testing Program set forth at 49 CFR part 40 because 
this regulation has established proven procedures and is cost-effective 
for DOE to utilize since most facilities already have the trained 
technicians and equipment to perform the tests. After considering the 
public comments, the DOE affirms its decision to follow the DOT 
regulations for the reasons given above.
    Several commenters suggested the use of alternative alcohol 
screening devices for initial screening, such as a saliva test strip. 
The Department does not agree with this suggestion and believes that 
the use of an evidential-grade breath alcohol device is the appropriate 
and industry accepted standard for evaluating alcohol concentrations.
    One commenter suggested making the proposed random alcohol testing 
discretionary and using a ``for cause'' or ``reasonable suspicion'' 
standard. The Department disagrees with the suggestion and believes the 
procedure outlined in the proposed rule adequately addresses the 
concerns regarding alcohol testing. DOE believes that job tasks 
performed by individuals in the HRP are equally, or more safety-
sensitive than those performed by workers in the transportation 
industry and the nuclear power industry. Therefore, it is appropriate 
that the DOE

[[Page 3217]]

regulations for alcohol testing be at least as stringent as the DOT and 
NRC regulations.
    A commenter suggested adding the words ``safety'' and ``quality-
reliability and assessing continuous suitability to the activity at 
hand'' to the general requirements for HRP certification. The 
Department agrees in part and has added ``safety'' to the certification 
text (Sec.  712.11(b)(1)). DOE does not believe the remaining suggested 
text is necessary programmatically or to improve upon the clarity of 
the proposed language, which is retained in today's rule.
    Another commenter raised a question concerning the use of over-the-
counter medications that contain alcohol. The proposed rule, Sec.  
712.11(d), did not differentiate between alcohol purchased for 
consumption and alcohol contained in over-the-counter medications for 
purposes of testing for alcohol use by individuals reporting for 
unscheduled nuclear explosive duties. Both can impair an individual's 
judgment and reliability while performing HRP duties. For this reason, 
DOE has not revised the final rule to differentiate over-the-counter 
medications containing alcohol.
    A commenter suggested changing the text in proposed Sec.  712.11(d) 
for the eight-hour abstinence requirement to include text that 
identifies individuals who may perform nuclear explosive duties on an 
irregular basis. The Department disagrees with this suggestion and 
believes the text as written provides appropriate guidance for all 
individuals performing nuclear explosive duties and is sufficient in 
describing this requirement.
    Several commenters questioned the need for the eight-hour 
abstinence requirement. As explained in item 2 of the Background 
section, this requirement has always been a part of the PAP for 
individuals performing nuclear explosive duties. The requirement has 
been expanded to also include specific positions designated by the NNSA 
Administrator, the appropriate Lead Program Secretarial Office, or the 
Manager of the Chicago, Idaho, Oak Ridge, Richland, and Savannah River 
Operations Offices; Manager of the Rocky Flats Office; Manager of the 
Pittsburgh Naval Reactors Office and the Schenectady Naval Reactors 
Office; Site Office Managers for Livermore, Los Alamos, Sandia, Y-12, 
Nevada, Pantex, Kansas City, and Savannah River; Director of the 
Service Center, Albuquerque; Assistant Deputy Administrator for the 
Office of Secure Transportation, Albuquerque; and for the Washington, 
DC area, the Director, Office of Security. The Department believes the 
requirement (Sec.  712.11(d)), which affects only a small portion of 
the HRP population, is necessary to ensure the reliability of personnel 
in HRP position.
    One commenter, who questioned the need for the eight-hour 
abstinence requirement, also objected to the proposed 0.02 blood 
alcohol levels (Sec.  712.11(c)). The commenter suggested DOE adopt the 
less stringent NRC Fitness for Duty Policy. The Department believes the 
HRP requirement is appropriate because HRP job requirements differ from 
those covered under the NRC rule.
    One commenter questioned why the proposed unscheduled work and 
alcohol consumption provision, Sec.  712.11(c), should apply to exempt 
workers attending to work responsibilities outside of normal work 
hours. This requirement, which was a requirement under PAP, applies to 
all workers performing nuclear explosive safety duties or those 
designated by the Manager, the NNSA Administrator, or Lead Program 
Secretarial Office. The sensitive nature of the work performed by 
individuals in these positions requires that exempt employees also be 
subject to the eight-hour abstinence provision.
    Several commenters suggested removing the proposed unscheduled work 
reporting requirement in Sec.  712.11(d). They claimed the requirement 
is ``unenforceable, impractical to implement, and only serves to 
agitate interpersonal relationships.'' The Department disagrees with 
this suggestion. This is a longstanding requirement for individuals 
performing nuclear explosive duties, and the Department believes that 
it is a valuable and essential component of the HRP.
    One commenter, concerned about the 12-hour abstinence requirement, 
suggested it should be replaced by the former eight-hour standard. The 
proposed HRP regulations do not have a 12-hour abstinence requirement 
but rather an eight-hour abstinence requirement (Sec.  712.11(c)) as 
recommended by the commenter.
    Another commenter suggested that an individual be allowed to obtain 
a confirming blood alcohol test in addition to the current testing 
procedure. The Department disagrees and believes the procedures in 
Sec.  712.11(e), which conform to 49 CFR part 40, are appropriate.
    A number of commenters questioned the lack of guidance in proposed 
Sec. Sec.  712.11(e) and 712.15(c) concerning an individual who has a 
breath alcohol concentration of 0.02 percent or greater. The Department 
concurs and has added specific language in Sec.  712.15(c)(3) to 
address these concerns.
    A number of commenters questioned the 0.02 percent blood alcohol 
concentration limit in proposed Sec. Sec.  712.11(e) and 712.15(c), and 
suggested that the level be increased to at least 0.04. The Department 
disagrees with this change and, as discussed in the Background section, 
this follows the DOT regulations. The Department believes that the 0.02 
level of blood alcohol is appropriate. The rule has not been changed to 
adopt the commenters' suggestion.
    One commenter contended that Sec.  712.11(e) and Sec.  712.15(d)(1) 
pertaining to ``occurrence testing,'' are redundant regarding testing 
for alcohol and/or drugs. The Department disagrees with this comment 
and points out that these two sections support each other regarding the 
procedures which would be followed and potential actions taken in 
occurrence testing situations.
    Another commenter questioned the ``must'' requirement in proposed 
Sec.  712.11(f) for alcohol/drug testing for any type of incident or 
unsafe practice. The Department concurs and has changed the text 
(replacing ``must'' with ``may'' in Sec.  712.11(e)) to give greater 
flexibility to the sites.
    A commenter asked whether individuals could be tested under the 
eight-hour requirement after stating they had not consumed alcohol. As 
Sec.  712.11(d) makes clear, ``If they answer `no,' they may perform 
their assigned duties but still may be tested.''
Comments Regarding Sec.  712.12 HRP Implementation
    A commenter criticized the extensive discussions of roles of 
numerous individuals, the lack of information for the HRP management 
official, and the incorrectness of the role of the Operations Office 
Managers. The Department has changed the text regarding Operations 
Office Managers to reflect the new NNSA organizational structure. In 
addition, the commenter noted that even if an organization performs all 
the tasks specified in the HRP it could still fail to identify 
potential security and safety risks. The commenter is correct. Even if 
all the HRP tasks are performed as required, the process still could 
fail. This is true for any program, and for this reason the Department 
has established specific objectives and requirements to help reduce the 
possibility of a failure. The key elements in the process are the 
individuals who work in HRP positions and their commitment to its 
success.

[[Page 3218]]

    Another commenter stated that the role of the supervisor in the 
Supervisory Review section, proposed Sec.  712.13, is unclear. The 
Department disagrees but has revised the text to describe the process 
more clearly.
    One commenter questioned the omission of the role of the Deputy 
Administrator for Defense Programs, NNSA, regarding responsibility for 
nuclear materials at NNSA sites. The Deputy Administrator for Defense 
Programs has many responsibilities, which include the safety and 
security of nuclear materials at NNSA sites. The responsibilities 
identified in Sec.  712.12, HRP Implementation, deal specifically with 
nuclear explosive duties and their requirements. The Department 
believes that text as written clearly identifies this specific 
requirement and does not need to be expanded.
    A commenter suggested adding the term ``following temporary 
removal'' to clarify the HRP certifying official's responsibilities in 
Sec.  712.12(g)(1). The Department concurs and the text has been 
changed.
    Several comments were received regarding the requirement in 
proposed Sec.  712.12(h)(2) for reporting prescription drugs and over-
the-counter medication to only the Site Occupational Medical Director 
(SOMD). The text has been changed to allow this reporting requirement 
to include the Designated Physician and the Designated Psychologist. 
One commenter supported the proposed requirement that over-the-counter 
medications be reported; several others questioned the need for such a 
requirement. In addition, several commenters proposed that the 
individual's private physician provide such information. The Department 
does not believe that a person's private physician adequately knows and 
understands the individual's work requirements. Since the Designated 
Physician, the Designated Psychologist, or the SOMD can refer to the 
individual's job task analysis, a decision can be made based on a clear 
understanding of job requirements. Both prescription drugs and over-
the-counter medications can affect an individual's judgment and 
reliability, and thus the Department believes this reporting is an 
important part of the HRP. It is not the intent of this rule to list 
categories or names of drugs that should be reported to the Designated 
Physician, the Designated Psychologist, or the SOMD. Common sense 
should be applied. Taking medications that can impact an individual's 
physical or mental capabilities (for example, those with instructions 
not to drive or operate motorized machinery) should be reported to the 
Designated Physician, the Designated Psychologist, or the SOMD. If an 
individual is unsure of possible side effects, he or she should consult 
with the Designated Physician, the Designated Psychologist, or the 
SOMD. Medications that do not have physical and/or mental side effects, 
such as medicated shampoos or dermatological ointments, would not be 
reportable.
    One commenter objected to the proposed requirement in Sec.  
712.12(h)(4) to report another HRP-certified individual, specifically 
if they observe the individual purchasing, possessing, or using alcohol 
at any time. DOE believes that the text as written clearly indicates 
that this reporting requirement is based on the judgment of the 
individual observing the behavior. The purchase, possession, or use of 
alcohol is not a reportable issue. If, however, it is believed that the 
observed use is chronic and excessive, thereby indicating a reliability 
concern, then it should be reported to a supervisor and/or the 
Designated Physician, the Designated Psychologist, or the SOMD.
    A commenter read the preamble to the notice of proposed rulemaking 
as not authorizing the HRP certifying official to temporarily remove an 
individual from an HRP position. The HRP certifying official does have 
this authority as stated in proposed Sec.  712.12(g)(1). The commenter 
also suggested that the HRP certifying official temporarily remove 
individuals who have missed their recertification date. This is already 
addressed in proposed Sec.  712.12(g)(4). If an individual fails to 
meet the 12-month recertification requirements, he or she is removed 
from the HRP. An exception is made if the personnel security element 
cannot resolve an issue within the 12-month requirement. New text has 
been added in Sec.  712.11(a)(5)(i) to address this issue.
    Another commenter suggested adding language that would require an 
individual to do a self-assessment of his or her ability to perform HRP 
duties. The Department agrees and has added text in Sec.  712.12(h)(5) 
of this rule.
Comments Regarding Sec.  712.13 Supervisory Review
    A commenter stated that the supervisory review requirements in 
proposed Sec.  712.13(b) and (c) should identify the types of security 
concerns the supervisor is expected to evaluate. The Department 
disagrees and believes the training requirement for supervisors will 
provide the necessary knowledge to address the security and safety 
issues outlined under the supervisory reviews.
    One commenter suggested adding ``domestic violence'' and 
``workplace incident leading to disciplinary action'' to the proposed 
list of reportable behaviors and conditions supervisors are required to 
report. The Department believes that these behaviors are covered in the 
existing examples listed in Sec.  712.13(c). The list is not intended 
to be exhaustive or comprehensive.
    Several commenters contended there was a need for greater clarity 
in proposed Sec.  712.13(d)(2), authorizing ``temporary removal'' by 
the SOMD and the HRP-certifying official. The Department agrees and has 
added text allowing the Designated Physician and Designated 
Psychologist to recommend temporary removal of individuals from HRP 
positions. The HRP Certifying Official already has this authority so no 
new text was added.
    A commenter questioned why Sec.  712.13(e) applies only to Federal 
employees. Federal employees have a different set of rules relating to 
their removal or transfer. This section addresses this issue. The 
Department has added additional text to describe this requirement more 
accurately.
    Another commenter stated that alcohol should be included in the 
list of concerns to be recognized and reported. The Department concurs 
and has added this language to the rule in Sec.  712.13(f).
Comments Regarding Sec.  712.14 Medical Assessment
    A commenter noted that a Physician's Assistant (PA) and a Nurse 
Practitioner (NP) currently perform some medical evaluations and asked 
if they could conduct an HRP medical assessment. This is allowed in the 
HRP as long as the Designated Physician oversees the process and is 
responsible for signing the certification or recertification form.
    One commenter questioned the utility of the job task analysis 
requirement in proposed Sec.  712.14(e). The Department believes that 
this detailed information regarding an employee's job tasks is vital to 
the physician who is conducting the medical assessment, because it may 
have bearing on both physical and mental health status. The job task 
analysis also is a requirement in DOE Order 440.1A, ``Worker Protection 
Management for DOE Federal and Contractor Employees.''
    One commenter raised the concern that the job task analysis does 
not take into consideration psychological factors such as mental 
stress, fatigue, or boredom. The Department disagrees and believes that 
the job task analysis as part of the medical assessment addresses this 
concern. Another commenter suggested replacing the term ``condition'' 
in

[[Page 3219]]

proposed Sec.  712.14(a)(2) with ``demonstrates problems with 
reliability or judgment.'' The Department disagrees with this 
suggestion because the term ``condition'' in this context refers to a 
factor that restricts or modifies physical health, which includes one's 
psychological status. In addition, the term suggested already is part 
of the supervisory review process.
    Another commenter asked what criteria the medical staff would use 
in applying proposed Sec.  712.14(c) to determine if an individual 
represents a security concern. The criteria in 10 CFR 710.8 identify 
the following: An illness or mental condition, alcohol abuse or 
dependency, use or experimentation with drugs or other illegal 
substances, or unusual conduct which raises a question about an 
individual's judgment, reliability, and trustworthiness. These criteria 
and those listed in Sec.  712.13(c) are the basis for a medical 
security concern.
    One commenter suggested adding the phrase ``and other examiners 
working under the direction of the Designated Physician'' in proposed 
Sec.  712.14(b)(2). The Department has incorporated the language in 
this section even though Subpart B, Sec.  712.32(c) specifically 
provides that a portion of the assessment may be performed by another 
physician, a physician's assistant (PA), or nurse practitioner (NP).
    A commenter suggested adding revealed substance abuse problems to 
the list of reasons in proposed Sec.  712.14(b)(2) to conduct an 
intermediate medical evaluation. The Department believes the referral 
by management under Sec.  712.14(b)(2)(ii) for a medical evaluation 
adequately covers this situation.
    One commenter questioned the use of the term ``intermediate'' in 
proposed Sec.  712.14(b)(2). The Department concurs and has omitted 
this term.
    A commenter objected to the evaluation requirement in proposed 
Sec.  712.14(d) of the medical assessment requirement, stating that 
such a requirement was in essence a ``fishing expedition.'' The 
Department disagrees with this characterization of the evaluation. The 
medical examination requirements clearly identify the areas that 
require assessment. The job task analysis provided to the Designated 
Physician/Designated Psychologist provides the framework for 
determining what conditions are significant to an individual's ability 
to perform work in a safe and secure manner. If a medical/psychological 
condition is believed to be clinically insignificant, then it is not an 
issue and would not be identified.
    Several commenters requested guidance on what specific medical 
tests are required for the HRP medical assessment and for a clearance. 
In considering this comment, the Department referred to DOE Order 
440.1A, ``Worker Protection Management for DOE Federal and Contractor 
Employees,'' which states under Employee Health Examinations: ``Health 
examinations shall be conducted * * * in accordance with current sound 
and acceptable medical practices.'' The minimum elements of a 
comprehensive medical evaluation are further described in DOE Guide 
440.1-4 as a medical/occupational history, physical examination, 
laboratory studies, and review and evaluation of findings. The 
Department reviewed what current medical tests were routinely performed 
at the various DOE sites. The tests that are routinely performed are: 
complete blood count, blood chemistry, electrocardiogram, pulmonary 
function tests, urinalysis, vision, and hearing acuity. These should be 
the minimum for an HRP medical assessment. Additional tests such as a 
graded stress test may be performed at the physician's discretion. The 
tests listed above also may indicate a problem that is or may become a 
security concern as described in 10 CFR 710.8, e.g., alcohol abuse or 
dependency and illegal substance use. DOE believes that it is 
inappropriate to specify in the regulation which medical tests should 
be performed because these are decisions best left to the physician's 
discretion.
    A commenter suggested including text in proposed Sec.  712.14(e) 
that would require the Designated Physician/Designated Psychologist to 
use the job task analysis when performing assessments. The Department 
believes that no change is needed because it is implicit in Sec.  
712.14(e) that the Designated Physician and Designated Psychologist 
must use the job task analysis in conducting the medical assessment and 
psychological evaluation.
    A commenter suggested that language be incorporated in proposed 
Sec.  712.14(f)(3) that would allow the testing portion of the 
psychological evaluation to be phased in within a three-year period. 
The Department agrees and has added appropriate text to the rule.
    Another commenter questioned whether proposed Sec.  712.14(h) would 
permit another health care provider, i.e., Designated Physician, PA, or 
NP, to temporarily remove or restrict an individual. Section 712.14(h) 
has been modified to allow the Designated Physician and Designated 
Psychologist to recommend temporary removal or restrictions on an HRP-
certified individual.
    One commenter suggested changing the psychological assessment test 
requirement in proposed Sec.  712.14(f)(3) from every three years to 
every five years. The Department disagrees with this suggestion. This 
three-year requirement was a PAP requirement and will be continued in 
the HRP.
    A commenter questioned the use of the term ``certain 
circumstances'' in proposed Sec.  712.14(g) pertaining to return to 
work after sick leave. The Department agrees those words are 
unnecessary and has removed them from the text.
    A commenter requested proposed Sec.  712.14(g) be clarified to 
specify which official could approve ``return to work.'' Text has been 
added that allows the Designated Physician, the Designated 
Psychologist, or the SOMD to perform this function.
    Another commenter asked what other evaluations are the sole 
responsibility of the SOMD. The responsibilities of the SOMD are listed 
in subpart B, Medical Standards, Sec.  712.34.
    A commenter suggested changing the language in proposed Sec.  
712.14(j) regarding the medications and treatment section within the 
medical assessment to include changes in an existing medication 
regimen. The Department has not included the suggested language because 
the text as written clearly identifies the requirements.
Comments Regarding Sec.  712.15 Management Evaluation
    A commenter questioned whether the 0.02 percent or greater alcohol 
concentration requirement in proposed Sec.  712.15(c) must be 
maintained at all times, such as ``midnight on Friday.'' The 0.02 
percent alcohol concentration requirement is for any HRP-certified 
individual who is performing HRP duties during any work cycle.
    One commenter raised a concern regarding requirements appearing in 
multiple sections. The Department does not believe this is a problem 
since each section defines the specific requirement for that section. 
The Department feels that combining all the requirements under just one 
section would increase the possibility of error and inconsistency.
    Another commenter suggested deleting the terms ``incident'' and 
``unsafe practice,'' in Sec.  712.15(b), because the testing protocol 
in 10 CFR part 707 is referenced and those terms are not used in that 
part. The Department utilizes the testing protocol

[[Page 3220]]

set forth in 10 CFR part 707 but in proposed Sec.  712.15(c) also 
requires testing when an HRP-certified individual is involved in an 
incident, unsafe practice, or occurrence, as defined in the regulation, 
or if there is a reasonable suspicion they may be impaired.
    A commenter suggested adding text to proposed Sec.  712.15(c) to 
indicate that the random unannounced testing would be conducted if 
necessary to achieve the requirement at least once in a 12-month 
period. The Department disagrees and believes the text as written 
clearly conveys the intent of the requirement.
    One commenter raised a question regarding dual compliance issues 
between the HRP and DOT requirements. The Department does not believe a 
problem exists regarding dual compliance. The HRP requirements in 
proposed Sec.  712.15(c)(2) regarding alcohol testing parallel the DOT 
requirements. In the event of a conflict between the two sets of 
requirements, the DOT regulation will take precedence.
    A commenter questioned when the initial alcohol test is to be 
conducted (e.g., prehire, during posthire processing, or prework). As 
clarified in Sec.  712.15(c), the initial alcohol test for an 
individual coming into the HRP will be conducted during the 
individual's orientation into the HRP and prior to performing HRP 
duties.
    Another commenter suggested requiring a preshift alcohol breath 
test. The Department does not agree and believes that the proposed 
testing requirement in Sec.  712.15(c) allows ample latitude to address 
the circumstances under which testing should be conducted.
    One commenter suggested that the word ``annual'' be included in the 
proposed alcohol testing requirement in Sec.  712.15(c). The Department 
disagrees and notes that the requirement is once every 12 months.
    A commenter suggested removing the text ``if involved in an 
incident, unsafe practice or occurrence, or based on reasonable 
suspicion'' from proposed Sec.  712.15(c) and referencing sections (d) 
and (e) of this section. The Department disagrees with the proposed 
suggestion because it only identifies occurrence and reasonable 
suspicion and omits incident and unsafe practice, which also are 
reasons to test.
    Several commenters questioned the two-hour time period allowed 
between notification and reporting for alcohol testing in proposed 
Sec.  712.15(c)(3)(i) and provided information that showed if such an 
allowance was made, a person's blood alcohol level could fall below 
0.02 percent in the interval. The commenters suggested that, for 
alcohol testing, the person should be required to report immediately to 
the testing facility. The Department is sensitive to the commenters' 
concern and notes that nothing prohibits a facility from having more 
stringent requirements. Text has been added to Sec.  712.15(c)(3)(i) to 
allow facilities to establish a shorter time period from notification 
to testing. Such a requirement should be described in detail in the 
facility implementation plan.
    Another commenter suggested removing the phrase ``or the 
individual's behavior creates the basis for reasonable suspicion'' from 
the occurrence testing provision in Sec.  712.15(d) because this 
language appears in Sec.  712.15(e) (Testing for reasonable suspicion). 
The Department concurs and the text has been changed.
    A commenter questioned why proposed Sec.  712.15(e)(1) required two 
or more supervisory or management officials for reasonable suspicion 
testing for alcohol when the DOT regulation requires only a single 
supervisor/manager. The Department is not bound to incorporate all 
aspects of the DOT regulation and believes that two or more 
supervisors/managers provide a greater degree of protection to 
management and even more importantly, to the individual. If an 
individual is subject to the DOT alcohol testing regulation, then DOT 
test procedures take precedence over the HRP regulation with respect to 
that individual.
    One commenter questioned why the term ``in possession of'' was 
included in the proposed Sec.  712.15(e)(2) reasonable suspicion text 
and again in the observable phenomena provision in Sec.  
712.15(e)(2)(i). The Department believes that the first part of the 
text identifies articulable belief, whereas the later reference 
identifies direct observation, which differs from beliefs that can be 
articulated.
Comments Regarding Sec.  712.16 DOE Security Review
    A commenter suggested adding text that would allow information from 
the personnel security file to be the basis for immediate removal if 
the information indicated a life-threatening risk. The Department 
believes that the proposed text in Sec.  712.16(c) would allow the 
SOMD, the Designated Physician, or the Designated Psychologist to 
recommend removal of an individual who may pose a life-threatening risk 
to themselves or others as determined either through the medical 
assessment or on the basis of information received from DOE personnel 
security.
Comments Regarding Sec.  712.17 Instructional Requirements
    A commenter suggested that non-HRP-certified supervisors and 
managers also be required to receive appropriate training in the HRP. 
The Department concurs and has added appropriate text to the proposed 
Sec.  712.17(a)(1).
    One commenter asked if a reasonable suspicion component would be a 
part of the proposed behavioral training requirement in Sec.  
712.17(b)(1) as it relates to alcohol and controlled substance use. 
These elements will be part of the overall training requirement.
    Another commenter suggested changing the text ``HRP medical 
personnel'' in proposed Sec.  712.17(a)(2) to allow more flexibility. 
The Department disagrees and believes the text clearly identifies the 
appropriate personnel and allows flexibility in accomplishing the 
objective.
    A commenter suggested adding additional text to the program 
training elements in proposed Sec.  712.17(b) to allow for more 
flexibility. The Department concurs and has added text to reflect this 
change.
Comments Regarding Sec.  712.18 Transferring HRP Certification
    A commenter suggested changing the requirement in proposed Sec.  
712.18(b)(3) pertaining to transferring an HRP certificate requirement 
to allow the new site flexibility regarding the initial approval date. 
The Department concurs and the text has been modified.
    Another commenter questioned language in proposed Sec.  712.18(a) 
regarding the transfer of an HRP certification, indicating that as 
written it implied an individual could initiate a transfer request. The 
Department concurs and has modified the text.
    One commenter questioned why proposed Sec.  712.18(b) did not 
mention the personnel security process in connection with transferring 
an HRP certification. The Department did not include this in the HRP 
rule because transferring an HRP certification is a separate process 
from transferring an access authorization.
Comments Regarding Sec.  712.19 Removal From HRP
    A commenter suggested adding a new section that addresses immediate 
removal from HRP duties at the request of the HRP certifying official. 
The Department agrees that a supervisor must remove an HRP-certified 
individual immediately when requested by the HRP certifying official, 
and language has been added to Sec.  712.19(a) to make this clear.

[[Page 3221]]

    One commenter suggested changing the proposed text in Sec.  
712.19(a)(3) to delay the 24-hour written notification to an individual 
to be removed from HRP duties if the notification could have a negative 
impact on a psychiatric or medical condition. The Department is 
confident responsible officials will implement the requirements with 
appropriate sensitivity to the individual while simultaneously meeting 
DOE requirements.
    Another commenter contended that the proposed provisions, 
Sec. Sec.  712.19(a) and (c), respectively, prescribing supervisory and 
HRP management responsibilities in removal situations did not clearly 
provide for an evaluation and determination of the individual's 
reliability. The Department disagrees, and declines to adopt the 
alternative text proposed by the commenter.
Comments Regarding Sec.  712.32 Designated Physician
    Several commenters stated that it was not clear which other 
qualified personnel could perform parts of the medical assessment and 
that no clear guidelines existed for a PA and NP. The Department 
believes the proposed text in Sec.  712.32(c) clearly allows the 
Designated Physician to utilize both PAs and NPs to conduct parts of 
the medical assessment. It is the responsibility of the Designated 
Physician to supervise the evaluation process, interpret the medical 
test results, and indicate if the individual is medically qualified to 
perform his or her HRP duties.
    One commenter requested clarification of the requirement in 
proposed Sec.  712.32(b)(4) regarding the Designated Physician's 
eligibility for a DOE access authorization. The Department does not 
require the Designated Physician to have an access authorization, but 
only to be eligible for an access authorization if one is required.
Comments Regarding Sec.  712.34 Site Occupational Medical Director
    Several commenters questioned the utility of the proposed 
requirement in Sec.  712.34(b) for the SOMD to submit a renomination 
report biennially through the Manager to the Deputy Assistant Secretary 
for Health evaluating the performance of Designated Physician and 
Designated Psychologist and asked for more information regarding the 
proposed report's content. The Department believes these reports will 
be an important aspect of the medical assessment process and will 
provide needed information regarding the effectiveness of the various 
components of the medical assessment. The Office of Health will be 
responsible for detailing the specific content of these reports.
Comments Regarding Sec.  712.35 Deputy Assistant Secretary for Health
    One commenter suggested that greater detail regarding the 
responsibilities of the Deputy Assistant Secretary for Health be 
incorporated into the rule. The Department disagrees and believes the 
proposed rule allows the latitude needed to develop appropriate 
policies and standards for the medical assessment.
Comments Regarding Sec.  712.36 Medical Assessment Process
    A commenter recommended modifying proposed Sec.  712.36(d)(4) to 
reference the types of behavior or conditions enumerated in proposed 
Sec.  712.13(c), which a supervisor must report following the annual 
evaluation of an HRP-certified individual, as reasons for conducting 
additional psychological or psychiatric evaluations. The Department 
concurs and the text has been modified to reflect this change.
    One commenter asked whether proposed Sec.  712.36(e) would permit a 
PA or NP to recommend a return-to-work and work accommodations. The 
rule does not give a PA or NP this responsibility.
    Several commenters requested the disqualifying conditions, 
including criteria necessary for judgment determinations, be listed and 
defined. The Department disagrees and notes that under Sec.  712.36(h) 
disqualifying conditions are based on the job task, fitness-for-duty 
requirements, and the Designated Physician's medical judgment relating 
to the physical and mental capabilities necessary to successfully 
perform required work.
    A commenter asked if the HRP certification process would be 
suspended under proposed Sec.  712.36(h) if the required documentation 
is not provided. The Department affirms that if the required medical 
documentation is not provided, the HRP process will be suspended until 
the documentation is provided.

B. Other Public Comments

    DOE also received several general comments that did not address any 
specific sections of the NOPR. These are discussed below.
    One commenter raised a question regarding the costs involved in the 
additional testing requirements. The Department recognizes that these 
new requirements have additional costs; however these costs are minimal 
because many of the requirements already are in place or in some cases 
are currently required for other programs.
    We agree with the comment expressing concerns regarding the use of 
the ``term emotional and mental disorders'' and have substituted the 
term ``mental/personality disorder'' in the final rule.
    Another commenter suggested that the regulation should contain 
procedures similar to the PAP regulation permitting an HRP-certified 
individual to request a medical assessment (i.e., self-referral). Text 
has been added at Sec.  712.12(h)(5) to include this requirement.
    A commenter asked whether being under the influence of alcohol 
would be treated differently than being under the influence of an 
illegal drug. Being under the influence of alcohol will be treated 
differently than being under the influence of an illegal drug or other 
substance. The consequences are described in the applicable subject 
sections.
    A commenter asked if individuals who currently are in a PAP or PSAP 
position will be grandfathered into the HRP. Appropriate text has been 
added in Sec.  712.2 to reflect that individuals who currently are in a 
PAP or PSAP position will be grandfathered into the HRP.
    A commenter raised the question of how to measure the effectiveness 
of the HRP. DOE will measure the effectiveness of the HRP through site 
evaluations and continuous monitoring of the program elements.
    One commenter questioned the use of the term ``impairment'' in 
relation to alcohol testing. The Department believes the term 
``impairment,'' defined in Sec.  712.3 as a decrease in functional 
capacity of a person, is an appropriate term.
    A commenter asked what psychological and physiological indicators 
the medical staff would monitor. These indicators include, but are not 
limited to, the behaviors and conditions listed in Sec.  712.13(c), and 
the psychological test and interview and the medical evaluation 
criteria in Sec.  712.14(d) for determining overall health.

III. Regulatory Review

A. Executive Order 12866

    Executive Order 12866, 58 FR 51735 (October 4, 1993) provides for a 
review by the Office of Information and Regulatory Affairs in the 
Office of Management and Budget of a ``significant regulatory action.'' 
This rule (10 CFR part 712) has been determined not to be a significant 
regulatory action. Accordingly, this rule

[[Page 3222]]

has not been reviewed by the Office of Information and Regulatory 
Affairs.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires 
preparation of an initial regulatory flexibility analysis for every 
rule that must be proposed for public comment, unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. As required by Executive Order 
13272, ``Proper Consideration of Small Entities in Agency Rulemaking'' 
(67 FR 53461, August 16, 2002), DOE published procedures and policies 
to ensure that the potential impacts of its draft rules on small 
entities are properly considered during the rulemaking process (68 FR 
7990, February 19, 2003), and has made them available on the Office of 
General Counsel's Web site: http://www.gc.doe.gov. DOE has reviewed 
today's rule under the provisions of the Regulatory Flexibility Act and 
the procedures and policies published on February 19, 2003. This rule 
does not directly regulate small businesses or small governmental 
entities. It applies principally to individuals who are employees of, 
or applicants for employment by, some of DOE's prime contractors, which 
are large businesses. There may be some affected small businesses that 
are subcontractors, but the rule will not impose unallowable costs. 
Accordingly, DOE certifies that the rule will not have a significant 
economic impact on a substantial number of small entities.

C. National Environmental Policy Act

    The rule, which consolidates the PAP and PSAP, relates to personnel 
qualifications that have no impact on the environment. DOE has 
determined that this rule is covered under the Categorical Exclusion in 
DOE's National Environmental Policy Act regulations in paragraph A.6 of 
Appendix A to subpart D, 10 CFR part 1021, which applies to rulemakings 
that are strictly procedural. Accordingly, neither an environmental 
assessment nor an environmental impact statement has been prepared.

D. Paperwork Reduction Act

    DOE has determined that the rule does not contain any new or 
amended record keeping, reporting or application requirements, or any 
other type of information collection requirements that require the 
approval of the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The OMB has defined 
the term ``information'' to exclude certifications, consents, and 
acknowledgments that entail only minimal burden [5 CFR 1320.3 (h)(1)].

E. Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 10, 1999), requires 
agencies to develop an accountable process to ensure meaningful and 
timely input by state and local officials in the development of 
regulatory policies that have ``federalism implications.'' Policies 
that have federalism implications are defined in the Executive Order to 
include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). DOE has examined this rule and determined that it does not have 
a substantial direct effect on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. 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. The rule does not impose a Federal mandate requiring 
preparation of an assessment under the Unfunded Mandates Reform Act of 
1995.

G. Executive Order 12988

    Section 3(a) of Executive Order 12988, 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.

H. Executive Order 13084

    Under Executive Order 13084, 63 FR 27655 (May 19, 1998), DOE may 
not issue a discretionary rule that significantly or uniquely affects 
Indian tribal governments and imposes substantial direct compliance 
costs. This rule does not have such effects. Accordingly, Executive 
Order 13084 does not apply.

I. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999, (Pub. L. No. 105-277), requires Federal agencies to issue 
a Family Policymaking Assessment for any proposed rule that may affect 
family well-being. This rule will have no impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has not 
prepared a Family Policymaking Assessment.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's rule under the OMB and DOE guidelines and has concluded that it 
is consistent with applicable policies in those guidelines.

K. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) requires Federal agencies to prepare and submit to 
the Office of

[[Page 3223]]

Information and Regulatory Affairs (OIRA), Office of Management and 
Budget, a Statement of Energy Effects for any proposed significant 
energy action. A ``significant energy action'' is defined as any action 
by an agency that promulgated or is expected to lead to promulgation of 
a final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. Today's regulatory 
action is not a significant energy action. Accordingly, DOE has not 
prepared a Statement of Energy Effects.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule prior to the effective 
date set forth at the outset of this notice. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

List of Subjects

10 CFR Part 710

    Administrative practice and procedures, Classified information, 
Government contracts, Government employees, and Nuclear materials.

10 CFR Part 711

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

10 CFR Part 712

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Government contracts, Government employees, Health, National security, 
Nuclear safety, Occupational safety and health, Personnel security, and 
Security concerns.

    Issued in Washington, DC, on January 13, 2004.
Spencer Abraham,
Secretary of Energy.

0
For the reasons stated in the preamble, the DOE hereby amends Chapter 
III of Title 10 of the Code of Federal Regulations as set forth below:

PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR 
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL

0
1. The authority citation for part 710 is revised to read as follows:

    Authority: 42 U.S.C. 7101, et seq.; 50 U.S.C. 2401, et seq.; 
Pub. L. 83-703, sec. 141, 68 Stat 940, as amended (42 U.S.C. 2161); 
Pub. L. 83-703, sec. 145, 68 Stat 942, as amended (42 U.S.C. 2165); 
Pub. L. 83-703, sec. 161, 68 Stat 948, as amended (42 U.S.C. 2201); 
E.O. 10450, 3 CFR 1949-1953 comp., p. 936, as amended; E.O. 10865, 3 
CFR 1959-1963 comp., p. 398, as amended, 3 CFR Chap. IV; E.O. 12958, 
3 CFR 1995, comp., p. 333; E.O. 12968, 3 CFR 1995, comp., p. 391.

Subpart B--[Removed]

0
2. Subpart B of 10 CFR part 710, is removed.

PART 711--PERSONNEL ASSURANCE PROGRAM

0
3. The authority citation for part 711 continues to read as follows:

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


0
4. Part 711 is removed.

0
5. Part 712, Human Reliability Program is added to read as follows:

PART 712--HUMAN RELIABILITY PROGRAM

Subpart A--Establishment of and Procedures for the Human Reliability 
Program

General Provisions

Sec.
712.1 Purpose.
712.2 Applicability.
712.3 Definitions.

Procedures

712.10 Designation of HRP positions.
712.11 General requirements for HRP certification.
712.12 HRP implementation.
712.13 Supervisory review.
712.14 Medical assessment.
712.15 Management evaluation.
712.16 DOE security review.
712.17 Instructional requirements.
712.18 Transferring HRP certification.
712.19 Removal from HRP.
712.20 Request for reconsideration or certification review hearing.
712.21 Office of Hearings and Appeals.
712.22 Hearing officer's report and recommendation.
712.23 Final decision by DOE Deputy Secretary.
Subpart B--Medical Standards
712.30 Applicability.
712.31 Purpose.
712.32 Designated Physician.
712.33 Designated Psychologist.
712.34 Site Occupational Medical Director.
712.35 Deputy Assistant Secretary for Health.
712.36 Medical assessment process.
712.37 Evaluation for hallucinogen use.
712.38 Maintenance of medical records.

    Authority: 42 U.S.C. 2165; 42 U.S.C. 2201; 42 U.S.C. 5814-5815; 
42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; E.O. 10450, 3 CFR 
1949-1953 Comp., p. 936, as amended; E.O. 10865, 3 CFR 1959-1963 
Comp., p. 398, as amended; 3 CFR Chap. IV.

Subpart A--Establishment of and Procedures for the Human 
Reliability Program

General Provisions


Sec.  712.1  Purpose.

    This part establishes the policies and procedures for a Human 
Reliability Program (HRP) in the Department of Energy (DOE), including 
the National Nuclear Security Administration (NNSA). The HRP is a 
security and safety reliability program designed to ensure that 
individuals who occupy positions affording access to certain materials, 
nuclear explosive devices, facilities, and programs meet the highest 
standards of reliability and physical and mental suitability. This 
objective is accomplished under this part through a system of 
continuous evaluation that identifies individuals whose judgment and 
reliability may be impaired by physical or mental/personality 
disorders, alcohol abuse, use of illegal drugs or the abuse of legal 
drugs or other substances, or any other condition or circumstance that 
may be of a security or safety concern.


Sec.  712.2  Applicability.

    The HRP applies to all applicants for, or current employees of DOE 
or a DOE contractor or subcontractor in a position defined or 
designated under Sec.  712.10 of this subpart as an HRP position. 
Individuals currently in a Personnel Assurance Program or Personnel 
Security Assurance Program position will be grandfathered into the HRP.


Sec.  712.3  Definitions.

    The following definitions are used in this part:
    Accelerated Access Authorization Program means the DOE program for 
granting interim access to classified matter and special nuclear 
material based on a drug test, a National Agency Check, a psychological 
assessment, a counterintelligence-scope polygraph examination in 
accordance with 10 CFR part 709, and a review of the applicant's 
completed ``Questionnaire for National Security Positions'' (Standard 
Form 86).
    Access means:
    (1) A situation that may provide an individual proximity to or 
control over

[[Page 3224]]

Category I special nuclear material (SNM); or
    (2) The proximity to a nuclear explosive and/or Category I SNM that 
allows the opportunity to divert, steal, tamper with, and/or damage the 
nuclear explosive or material in spite of any controls that have been 
established to prevent such unauthorized actions.
    Alcohol means the intoxicating agent in beverage alcohol, ethyl 
alcohol, or other low molecular weight alcohol.
    Alcohol abuse means consumption of any beverage, mixture, or 
preparation, including any medication containing alcohol that results 
in impaired social or occupational functioning.
    Alcohol concentration means the alcohol in a volume of breath 
expressed in terms of grams of alcohol per 210 liters of breath as 
indicated by a breath test.
    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 HRP certifying official 
takes that permits an individual to perform HRP duties after it is 
determined that the individual meets the requirements for certification 
under this part.
    Contractor means subcontractors at all tiers and any industrial, 
educational, commercial, or other entity, grantee, or licensee, 
including an employee that has executed an agreement with the Federal 
government for the purpose of performing under a contract, license, or 
other arrangement.
    Deputy Assistant Secretary for Health means the DOE individual with 
responsibility for policy and quality assurance for DOE occupational 
medical programs.
    Designated Physician means a licensed doctor of medicine or 
osteopathy who has been nominated by the Site Occupational Medical 
Director (SOMD) and approved by the Manager or designee, with the 
concurrence of the Deputy Assistant Secretary for Health, to provide 
professional expertise in occupational medicine for the HRP.
    Designated Psychologist means a licensed Ph.D., or Psy.D., in 
clinical psychology who has been nominated by the SOMD and approved by 
the Manager or designee, with the concurrence of the Deputy Assistant 
Secretary for Health, to provide professional expertise in the area of 
psychological assessment for the HRP.
    Diagnostic and Statistical Manual of Mental Disorders means the 
current version of the American Psychiatric Association's manual 
containing definitions of psychiatric terms and diagnostic criteria of 
mental disorders.
    Drug abuse means use of an illegal drug or misuse of legal drugs.
    Evidential-grade breath alcohol device means a device that conforms 
to the model standards for an evidential breath-testing device as 
listed on the Conforming Products List of Evidential Breath Measurement 
Devices published by the National Highway Traffic Safety Administration 
(NHTSA).
    Flashback means an involuntary, spontaneous recurrence of some 
aspect of a hallucinatory experience or perceptual distortion that 
occurs long after taking the hallucinogen that produced the original 
effect; also referred to as hallucinogen persisting perception 
disorder.
    Hallucinogen means a drug or substance that produces 
hallucinations, distortions in perception of sights and sounds, and 
disturbances in emotion, judgment, and memory.
    HRP candidate means an individual being considered for assignment 
to an HRP position.
    HRP-certified individual means an individual who has successfully 
completed the HRP requirements.
    HRP certifying official means the Manager or the Manager's designee 
who certifies, recertifies, temporarily removes, reviews the 
circumstances of an individual's removal from an HRP position, and 
directs reinstatement.
    HRP management official means an individual designated by the DOE 
or a DOE contractor, as appropriate, who has programmatic 
responsibility for HRP positions.
    Illegal drug means a controlled substance, as specified in 
Schedules I through V of the Controlled Substances Act, 21 U.S.C. 811 
and 812; the term 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 
person that is caused by a physical, mental, emotional, substance 
abuse, or behavioral disorder.
    Incident means an unplanned, undesired event that interrupts the 
completion of an activity and that may include property damage or 
injury.
    Job task analysis means the formal process of defining the 
requirements of a position and identifying the knowledge, skills, and 
abilities necessary to effectively perform the duties of the position.
    Manager means the Manager of the Chicago, Idaho, Oak Ridge, 
Richland, and Savannah River Operations Offices; Manager of the Rocky 
Flats Office; Manager of the Pittsburgh Naval Reactors Office and the 
Schenectady Naval Reactors Office; Site Office Managers for Livermore, 
Los Alamos, Sandia, Y-12, Nevada, Pantex, Kansas City, and Savannah 
River; Director of the Service Center, Albuquerque; Assistant Deputy 
Administrator for the Office of Secure Transportation, Albuquerque; and 
for the Washington, DC area, the Director, Office of Security.
    Material access area means a type of Security Area that is 
authorized to contain a Category I quantity of special nuclear material 
and that has specifically defined physical barriers, is located within 
a Protected Area, and is subject to specific access controls.
    Medical assessment means an evaluation of an HRP candidate and HRP-
certified individual's present health status and health risk factors by 
means of:
    (1) Medical history review;
    (2) Job task analysis;
    (3) Physical examination;
    (4) Appropriate laboratory tests and measurements; and
    (5) Appropriate psychological and psychiatric evaluations.
    Nuclear explosive means an assembly of fissionable and/or 
fusionable materials and main charge high explosive parts or 
propellants that is capable of producing a nuclear detonation.
    Nuclear explosive duties means work assignments that allow custody 
of a nuclear explosive or access to a nuclear explosive device or area.
    Occurrence means any event or incident that is a deviation from the 
planned or expected behavior or course of events in connection with any 
DOE or DOE-controlled operation if the deviation has environmental, 
public health and safety, or national security protection significance, 
including (but not limited to) incidents involving:
    (1) Injury or fatality to any person involving actions of a DOE 
employee or contractor employee;
    (2) An explosion, fire, spread of radioactive material, personal 
injury or death, or damage to property that involves nuclear explosives 
under DOE jurisdiction;
    (3) Accidental release of pollutants that results from, or could 
result in, a significant effect on the public or environment; or
    (4) Accidental release of radioactive material above regulatory 
limits.
    Psychological assessment or test means a scientifically validated 
instrument designed to detect psychiatric, personality, and behavioral

[[Page 3225]]

tendencies that would indicate problems with reliability and judgment.
    Random alcohol testing means the unscheduled, unannounced alcohol 
testing of randomly selected employees by a process designed to ensure 
that selections are made in a nondiscriminatory manner.
    Random drug testing means the unscheduled, unannounced drug testing 
of randomly selected employees by a process designed to ensure that 
selections are made in a nondiscriminatory manner.
    Reasonable suspicion means a suspicion based on an articulable 
belief that an individual uses illegal drugs or is under the influence 
of alcohol, drawn from reasonable inferences from particular facts, as 
detailed further in part 707 of this title.
    Recertification means the formal action the HRP certifying official 
takes annually, not to exceed 12 months, that permits an employee to 
remain in the HRP and perform HRP duties.
    Reinstatement means the action the HRP certifying official takes 
after it has been determined that an employee who has been temporarily 
removed from the HRP meets the certification requirements of this part 
and can be returned to HRP duties.
    Reliability means an individual's ability to adhere to security and 
safety rules and regulations.
    Safety concern means any condition, practice, or violation that 
causes a substantial probability of physical harm, property loss, and/
or environmental impact.
    Security concern means the presence of information regarding an 
individual applying for or holding an HRP position that may be 
considered derogatory under the criteria listed in 10 CFR part 710, 
subpart A.
    Semi-structured interview means an interview by a Designated 
Psychologist, or a psychologist under his or her supervision, who has 
the latitude to vary the focus and content of the questions depending 
on the interviewee's responses.
    Site Occupational Medical Director (SOMD) means the physician 
responsible for the overall direction and operation of the occupational 
medical program at a particular site.
    Supervisor means the individual who has oversight and 
organizational responsibility for a person holding an HRP position, and 
whose duties include evaluating the behavior and performance of the 
HRP-certified individual.
    Transfer means an HRP-certified individual moving from one site to 
another site.
    Unacceptable damage means an incident that could result in a 
nuclear detonation; high-explosive detonation or deflagration from a 
nuclear explosive; the diversion, misuse, or removal of Category I 
special nuclear material; or an interruption of nuclear explosive 
operations with a significant impact on national security.
    Unsafe practice means either a human action departing from 
prescribed hazard controls or job procedures or practices, or an action 
causing a person unnecessary exposure to a hazard.

Procedures


Sec.  712.10  Designation of HRP positions.

    (a) HRP certification is required for each individual assigned to, 
or applying for, a position that:
    (1) Affords access to Category I SNM or has responsibility for 
transportation or protection of Category I quantities of SNM;
    (2) Involves nuclear explosive duties or has responsibility for 
working with, protecting, or transporting nuclear explosives, nuclear 
devices, or selected components;
    (3) Affords access to information concerning vulnerabilities in 
protective systems when transporting nuclear explosives, nuclear 
devices, selected components, or Category I quantities of SNM; or
    (4) Is not included in paragraphs (a)(1) through (3) of this 
section but affords the potential to significantly impact national 
security or cause unacceptable damage and is approved pursuant to 
paragraph (b) of this section.
    (b) The Manager or the HRP management official may nominate 
positions for the HRP that are not specified in paragraphs (a)(1) 
through (3) of this section or that have not previously been designated 
HRP positions. All such nominations must be submitted to and approved 
by either the NNSA Administrator, his or her designee, the Director, 
Office of Security, or the appropriate Lead Program Secretarial 
Officer, or his or her designee.
    (c) Before nominating a position for designation as an HRP 
position, the Manager or the HRP management official must analyze the 
risks the position poses for the particular operational program. If the 
analysis shows that more restrictive physical, administrative, or other 
controls could be implemented that would prevent the position from 
being designated an HRP position, those controls will be implemented, 
if practicable.
    (d) Nothing in this part prohibits contractors from establishing 
stricter employment standards for individuals who are nominated to DOE 
for certification or recertification in the HRP.


Sec.  712.11  General requirements for HRP certification.

    (a) The following certification requirements apply to each 
individual applying for or in an HRP position:
    (1) A DOE ``Q'' access authorization based on a background 
investigation, except for security police officers who have been 
granted an interim ``Q'' through the Accelerated Access Authorization 
Program;
    (2) The annual submission of SF-86, OMB Control No. 3206-0007, 
Questionnaire for National Security Positions, Part 2, and an annual 
review of the personnel security file;
    (3) Signed releases, acknowledgments, and waivers to participate in 
the HRP on forms provided by DOE;
    (4) Completion of initial and annual HRP instruction as provided in 
Sec.  712.17;
    (5) Successful completion of an initial and annual supervisory 
review, medical assessment, management evaluation, and a DOE personnel 
security review for certification and recertification in accordance 
with this part. With respect to the DOE personnel security review:
    (i) If the DOE personnel security review is not completed within 
the 12-month time period and the individual's access authorization is 
not suspended, the HRP certification form shall be forwarded to the HRP 
certifying official for recertification or temporary removal, 
contingent upon a favorable security review;
    (ii) If a final determination has been made by DOE personnel 
security that is favorable, this information shall be forwarded to the 
HRP certifying official and so noted on the certification form; or
    (iii) If the final determination has been made by DOE personnel 
security that the access authorization has been suspended, the 
individual shall be immediately removed from the HRP position, the HRP 
certifying official notified, the information noted on the 
certification form, and the procedures outlined in 10 CFR part 710, 
subpart A, shall be followed.
    (6) No use of any hallucinogen in the preceding five years and no 
experience of flashback resulting from the use of any hallucinogen more 
than five years before applying for certification or recertification;
    (7) A psychological evaluation consisting of a generally accepted 
psychological assessment (test) and a semi-structured interview;
    (8) An initial drug test and random drug tests for the use of 
illegal drugs at

[[Page 3226]]

least once each 12 months in accordance with DOE policies implementing 
Executive Order 12564 or the relevant provisions of 10 CFR part 707 for 
DOE contractors, and DOE Order 3792.3, ``Drug-Free Federal Workplace 
Testing Implementation Program,'' for DOE employees;
    (9) An initial alcohol test and random alcohol tests at least once 
each 12 months using an evidential-grade breath alcohol device, as 
listed without asterisks on the Conforming Products List of Evidential 
Breath Measurement Devices published by the NHTSA (49 CFR part 40); and
    (10) Successful completion of a counterintelligence evaluation, 
which includes a counterintelligence-scope polygraph examination in 
accordance with DOE's Polygraph Examination Regulation, 10 CFR part 
709, and any subsequent revisions to that regulation.
    (b) Each HRP candidate must be certified in the HRP before being 
assigned to HRP duties and must be recertified annually, not to exceed 
12 months between recertifications. For certification:
    (1) Individuals in newly identified HRP positions must immediately 
sign the releases, acknowledgments, and waivers to participate in the 
HRP and complete initial instruction on the importance of security, 
safety, reliability, and suitability. If these requirements are not 
met, the individual must be removed from the HRP position.
    (2) All remaining HRP requirements listed in paragraph (a) of this 
section must be completed in an expedited manner.
    (c) Alcohol consumption is prohibited within an eight-hour period 
preceding scheduled work for individuals performing nuclear explosive 
duties and for individuals in specific positions designated by either 
the Manager, the NNSA Administrator, his or her designee, or the 
appropriate Lead Program Secretarial Officer, or his or her designee.
    (d) Individuals reporting for unscheduled nuclear explosive duties 
and those specific positions designated by either the Manager, the NNSA 
Administrator or his or her designee, or the appropriate Lead Program 
Secretarial Officer, or his or her designee, will be asked prior to 
performing any type of work if they have consumed alcohol within the 
preceding eight-hour period. If they answer ``no,'' they may perform 
their assigned duties but still may be tested.
    (e) HRP-certified individuals may be tested for alcohol and/or 
drugs in accordance with Sec.  712.15(b), (c), (d) and (e) if they are 
involved in an incident, unsafe practice, or an occurrence, or if there 
is reasonable suspicion that they may be impaired.


Sec.  712.12  HRP implementation.

    (a) The implementation of the HRP is the responsibility of the 
appropriate Manager or his or her designee. The Manager or designee 
must fully implement the HRP by April 22, 2004.
    (b) The HRP Management Official must:
    (1) Prepare an initial HRP implementation plan and submit it by 
March 23, 2004, to the applicable Manager for review and site approval. 
The implementation plan must:
    (i) Be reviewed and updated every two years;
    (ii) Include the four annual components of the HRP process: 
supervisory review, medical assessment, management evaluation (which 
includes random drug and alcohol testing), and a DOE personnel security 
determination; and
    (iii) Include the HRP instruction and education component described 
in Sec.  712.17 of this part.
    (2) Approve the temporary removal and the reinstatement after 
temporary removal of an HRP-certified individual if the removal was 
based on a nonsecurity concern and the HRP-certified individual 
continues to meet the certification requirements and notify the HRP 
certifying official of these actions.
    (c) The Deputy Administrator for Defense Programs, NNSA must:
    (1) Provide advice and assistance to the Director, Office of 
Security, regarding policies, standards, and guidance for all nuclear 
explosive duty requirements; and
    (2) Be responsible for implementation of all nuclear explosive duty 
safety requirements.
    (d) The DOE Deputy Secretary, based on a recommendation of the 
Director, Office of Security, makes the final decision for any appeal 
of denial or revocation of certification or recertification from HRP.
    (e) The Director, Security Policy Staff, within the Office of 
Security, is responsible for HRP policy and must:
    (1) Ensure consistency of the HRP throughout the DOE and NNSA;
    (2) Review and comment on all HRP implementation plans to ensure 
consistency with policy; and
    (3) Provide policies and guidance, including instructional 
materials, to NNSA and non-NNSA field elements concerning the HRP, as 
appropriate.
    (f) The Manager must:
    (1) Review and approve the HRP implementation plan for sites/
facilities under their cognizance and forward the plan to the Director, 
Security Policy Staff; and
    (2) Ensure that the HRP is implemented at the sites/facilities 
under their cognizance.
    (g) The HRP certifying official must:
    (1) Approve placement, certification, reinstatement, and 
recertification of individuals into HRP positions; for unresolved 
temporary removals, follow the process in Sec.  712.19(c)(5);
    (2) Ensure that instructional requirements are implemented;
    (3) Immediately notify (for the purpose of limiting access) the 
appropriate HRP management official of a personnel security action that 
results in the suspension of access authorization; and
    (4) Ensure that the supervisory review, medical assessment, and 
management evaluation, including drug and alcohol testing, are 
conducted on an annual basis (not to exceed 12 months).
    (h) Individuals assigned to HRP duties must:
    (1) Execute HRP releases, acknowledgments, and waivers to 
facilitate the collection and dissemination of information, the 
performance of drug and alcohol testing, and medical examinations;
    (2) Notify the Designated Physician, the Designated Psychologist, 
or the SOMD immediately of a physical or mental condition requiring 
medication or treatment;
    (3) Provide full, frank, and truthful answers to relevant and 
material questions, and when requested, furnish, or authorize others to 
furnish, information that DOE deems pertinent to reach a decision 
regarding HRP certification or recertification;
    (4) Report any observed or reported behavior or condition of 
another HRP-certified individual that could indicate a reliability 
concern, including those behaviors and conditions listed in Sec.  
712.13(c), to a supervisor, the Designated Physician, the Designated 
Psychologist, the SOMD, or the HRP management official; and
    (5) Report to a supervisor, the Designated Physician, the 
Designated Psychologist, the SOMD, or the HRP management official, any 
behavior or condition, including those listed in Sec.  712.13(c), that 
may affect his or her ability to perform HRP duties.


Sec.  712.13  Supervisory review.

    (a) The supervisor must ensure that each HRP candidate and each 
individual occupying an HRP position but not yet HRP certified, 
executes the appropriate HRP releases, acknowledgments, and waivers. If 
these documents are not executed:

[[Page 3227]]

    (1) The request for HRP certification may not be further processed 
until these requirements are completed; and
    (2) The individual is immediately removed from the position.
    (b) Each supervisor of HRP-certified personnel must conduct an 
annual review of each HRP-certified individual during which the 
supervisor must evaluate information (including security concerns) 
relevant to the individual's suitability to perform HRP tasks in a 
reliable and safe manner.
    (c) The supervisor must report any concerns resulting from his or 
her review to the appropriate HRP management official. Types of 
behavior and conditions that would indicate a concern include, but are 
not limited to:
    (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 disorders;
    (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 comply with 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.
    (d) The supervisor must immediately remove an HRP-certified 
individual from HRP duties, pursuant to Sec.  712.19, and temporarily 
reassign the individual to a non-HRP position if the supervisor 
believes the individual has demonstrated a security or safety concern 
that warrants such removal. If temporary removal is based on a security 
concern, the HRP management official must immediately notify the 
applicable DOE personnel security office and the HRP certifying 
official.
    (1) Based on the DOE personnel security office recommendation, the 
HRP certifying official will make the final decision about whether to 
reinstate an individual into an HRP position.
    (2) If temporary removal is based on a medical concern, the 
Designated Physician, the Designated Psychologist, or the SOMD must 
immediately recommend the medical removal or medical restriction in 
writing to the appropriate HRP management official, who will make the 
final determination in temporary removal actions and immediately notify 
the appropriate HRP certifying official.
    (e) The supervisor must immediately remove from HRP duties any 
Federal employee who does not obtain HRP recertification. The 
supervisor may reassign the individual or realign the individual's 
current duties. If these actions are not feasible, the supervisor must 
contact the appropriate personnel office for guidance.
    (f) The supervisor who has been informed by the breath alcohol 
technician that an HRP-certified individual's confirmatory breath 
alcohol test result is at or above an alcohol concentration of 0.02 
percent shall send the individual home and not allow that individual to 
perform HRP duties for 24 hours, and inform the HRP management official 
of this action.


Sec.  712.14  Medical assessment.

    (a) Purpose. The HRP medical assessment is performed to evaluate 
whether an HRP candidate or an HRP-certified individual:
    (1) Represents a security concern; or
    (2) Has a condition that may prevent the individual from performing 
HRP duties in a reliable and safe manner.
    (b) When performed. (1) The medical assessment is performed 
initially on HRP candidates and individuals occupying HRP positions who 
have not yet received HRP certification. The medical assessment is 
performed annually for HRP-certified individuals, or more often as 
required by the SOMD.
    (2) The Designated Physician and other examiners working under the 
direction of the Designated Physician also will conduct an evaluation:
    (i) If an HRP-certified individual requests an evaluation (i.e., 
self-referral); or
    (ii) If an HRP-certified individual is referred by management for 
an evaluation.
    (c) Process. The Designated Physician, under the supervision of the 
SOMD, is responsible for the medical assessment of HRP candidates and 
HRP-certified individuals. In performing this responsibility, the 
Designated Physician or the SOMD must integrate the medical 
evaluations, available testing results, psychological evaluations, any 
psychiatric evaluations, a review of current legal drug use, and any 
other relevant information. This information is used to determine if a 
reliability, safety, or security concern exists and if the individual 
is medically qualified for his or her assigned duties. If a security 
concern is identified, the Designated Physician or SOMD must 
immediately notify the HRP management official, who notifies the 
applicable DOE personnel security office and appropriate HRP certifying 
official.
    (d) Evaluation. The Designated Physician, with the assistance of 
the Designated Psychologist, must determine the existence or nature of 
any of the following:
    (1) Physical or medical disabilities, such as a lack of visual 
acuity, defective color vision, impaired hearing, musculoskeletal 
deformities, and neuromuscular impairment;
    (2) Mental/personality disorders or behavioral problems, including 
alcohol and other substance use disorders, as described in the 
Diagnostic and Statistical Manual of Mental Disorders;
    (3) 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;
    (4) Threat of suicide, homicide, or physical harm; or
    (5) Medical conditions such as cardiovascular disease, endocrine 
disease, cerebrovascular or other neurologic disease, or the use of 
drugs for the treatment of conditions that may adversely affect the 
judgment or ability of an individual to perform assigned duties in a 
reliable and safe manner.
    (e) Job task analysis. Before the initial or annual medical 
assessment and psychological evaluation, employers must provide, to 
both the Designated Physician and Designated Psychologist, a job task 
analysis for each HRP candidate or HRP-certified individual. Medical 
assessments and psychological evaluations may not be performed if a job 
task analysis has not been provided.
    (f) Psychological evaluations. Psychological evaluations must be 
conducted:
    (1) For initial HRP certification. This psychological evaluation 
consists of a psychological assessment (test), approved by the Deputy 
Assistant Secretary for Health or his or her designee, and a semi-
structured interview.
    (2) For recertification. This psychological evaluation consists of 
a semi-structured interview. A psychological assessment (test) may also 
be conducted as warranted.
    (3) Every third year. The medical assessment for recertification 
must include a psychological assessment (test) approved by the Deputy 
Assistant Secretary for Health or his or her

[[Page 3228]]

designee. This requirement can be implemented over a three-year period 
for individuals who are currently in an HRP position.
    (4) When additional psychological or psychiatric evaluations are 
required by the SOMD to resolve any concerns.
    (g) Return to work after sick leave. HRP-certified individuals who 
have been on sick leave for five or more consecutive days, or an 
equivalent time period for those individuals on an alternative work 
schedule, must report in person to the Designated Physician, the 
Designated Psychologist, or the SOMD before being allowed to return to 
normal duties. The Designated Physician, the Designated Psychologist, 
or the SOMD must provide a written recommendation to the appropriate 
HRP supervisor regarding the individual's return to work. An HRP-
certified individual also may be required to report to the Designated 
Physician, the Designated Psychologist, or the SOMD for written 
recommendation to return to normal duties after any period of sick 
leave.
    (h) Temporary removal or restrictions. The Designated Physician, 
the Designated Psychologist, or the SOMD may recommend temporary 
removal of an individual from an HRP position or restrictions on an 
individual's work in an HRP position if a medical condition or 
circumstance develops that affects the individual's ability to perform 
assigned job duties. The Designated Physician, the Designated 
Psychologist, or the SOMD must immediately recommend medical removal or 
medical restrictions in writing to the appropriate HRP management 
official. If the HRP management official concurs, he or she will then 
notify the appropriate HRP certifying official. To reinstate or remove 
such restrictions, the Designated Physician, the Designated 
Psychologist, or the SOMD must make written recommendation to the HRP 
management official for concurrence. The HRP management official will 
then notify the appropriate HRP certifying official.
    (i) Medical evaluation after rehabilitation. (1) Individuals who 
request reinstatement in the HRP following rehabilitative treatment for 
alcohol use disorder, use of illegal drugs, or the abuse of legal drugs 
or other substances, must undergo an evaluation, as prescribed by the 
SOMD, to ensure continued rehabilitation and adequate capability to 
perform their job duties.
    (2) The HRP certifying official may reinstate HRP certification of 
an individual who successfully completes an SOMD-approved drug or 
alcohol rehabilitation program. Recertification is based on the SOMD's 
follow-up evaluation and recommendation. The individual is also subject 
to unannounced follow-up tests for illegal drugs or alcohol and 
relevant counseling for three years.
    (j) Medication and treatment. HRP-certified individuals are 
required to immediately report to the Designated Physician, the 
Designated Psychologist, or the SOMD any physical or mental condition 
requiring medication or treatment. The Designated Physician, the 
Designated Psychologist, or the SOMD determines if temporary removal of 
the individual from HRP duties is required and follows the procedures 
pursuant to Sec.  712.14(h).


Sec.  712.15  Management evaluation.

    (a) Evaluation components. An evaluation by the HRP management 
official is required before an individual can be considered for initial 
certification or recertification in the HRP. This evaluation must be 
based on a careful review of the results of the supervisory review, 
medical assessment, and drug and alcohol testing. If a safety concern 
is identified, the HRP management official must require the supervisor 
to temporarily reassign the individual to non-HRP duties and forward 
this information to the HRP certifying official. If the management 
evaluation reveals a security concern, the HRP management official must 
notify the applicable DOE personnel security office.
    (b) Drug testing. All HRP candidates and HRP-certified individuals 
are subject to testing for the use of illegal drugs, as required by 
this part. Testing must be conducted in accordance with 10 CFR part 
707, the workplace substance abuse program for DOE contractor 
employees, and DOE Order 3792.3, ``Drug-Free Federal Workplace Testing 
Implementation Program,'' for DOE employees. The program must include 
an initial drug test, random drug tests at least once every 12 months 
from the previous test, and tests of HRP-certified individuals if they 
are involved in an incident, unsafe practice, occurrence, or based on 
reasonable suspicion. Failure to appear for unannounced testing within 
two hours of notification constitutes a refusal to submit to a test. 
Sites may establish a shorter time period between notification and 
testing but may not exceed the two-hour requirement. An HRP-certified 
individual who, based on a drug test, has been determined to use 
illegal drugs must immediately be removed from HRP duties, and DOE 
personnel security must be notified immediately.
    (c) Alcohol testing. All HRP candidates and HRP-certified 
individuals are subject to testing for the use of alcohol, as required 
by this part. The alcohol testing program must include, as a minimum, 
an initial alcohol test prior to performing HRP duties and random 
alcohol tests at least once every 12 months from the previous test, and 
tests of HRP-certified individuals if they are involved in an incident, 
unsafe practice, occurrence, or based on reasonable suspicion. An HRP-
certified individual who has been determined to have an alcohol 
concentration of 0.02 percent or greater shall be sent home and not 
allowed to perform HRP duties for 24 hours.
    (1) Breath alcohol testing must be conducted by a certified breath 
alcohol technician and conform to the DOT procedures (49 CFR part 40, 
Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs, subparts J through N) for use of an evidential-grade breath 
analysis device approved for 0.02/0.04 cutoff levels, which conforms to 
the DOT model specifications and the most recent ``Conforming Products 
List'' issued by NHTSA.
    (2) An individual required to undergo DOT alcohol testing is 
subject to the regulations of the DOT. If such an individual's blood 
alcohol level exceeds DOT standards, the individual's employer may take 
appropriate disciplinary action.
    (3) The following constitutes a refusal to submit to a test and 
shall be considered as a positive alcohol concentration test of 0.02 
percent, which requires the individual be sent home and not allowed to 
perform HRP duties for 24 hours:
    (i) Failure to appear for unannounced testing within two hours of 
notification (or established shorter time for the specific site);
    (ii) Failure to provide an adequate volume of breath in two 
attempts without a valid medical excuse; and
    (iii) Engaging in conduct that clearly obstructs the testing 
process, including failure to cooperate with reasonable instructions 
provided by the testing technician.
    (d) Occurrence testing. (1) When an HRP-certified individual is 
involved in, or associated with, an occurrence requiring immediate 
reporting to the DOE, the following procedures must be implemented:
    (i) Testing for the use of illegal drugs in accordance with the 
provisions of the DOE policies implementing Executive Order 12564, and 
10 CFR part 707 or DOE Order 3792.3, which establish workplace 
substance abuse programs for

[[Page 3229]]

contractor and DOE employees, respectively.
    (ii) Testing for use of alcohol in accordance with this section.
    (2) Testing must be performed as soon as possible after an 
occurrence that requires immediate notification or reporting.
    (3) The supervisor must remove an HRP-certified individual from HRP 
duties if the individual refuses to undergo the testing required by 
this section.
    (e) Testing for reasonable suspicion. (1) If the behavior of an 
individual in an HRP position creates the basis for reasonable 
suspicion of the use of an illegal drug or alcohol, that individual 
must be tested if two or more supervisory or management officials, at 
least one of whom is in the direct chain of supervision of the 
individual or is the Designated Physician, the Designated Psychologist, 
or the SOMD, agree that such testing is appropriate.
    (2) Reasonable suspicion must be based on an articulable belief, 
drawn from facts and reasonable inferences from those particular facts, 
that an HRP-certified individual is in possession of, or under the 
influence of, an illegal drug or alcohol. Such a belief may be based 
on, among other things:
    (i) Observable phenomena, such as direct observation of the use or 
possession of illegal drugs or alcohol, or the physical symptoms of 
being under the influence of drugs or alcohol;
    (ii) A pattern of abnormal conduct or erratic behavior;
    (iii) Information provided by a reliable and credible source that 
is independently corroborated; or
    (iv) Detection of alcohol odor on the breath.
    (f) Counterintelligence Evaluation. HRP candidates and, when 
selected, HRP-certified individuals, must submit to and successfully 
complete a counterintelligence evaluation, which includes a polygraph 
examination in accordance with 10 CFR part 709, Polygraph Examination 
Regulations and any subsequent revisions to that regulation.


Sec.  712.16  DOE security review.

    (a) A personnel security specialist will perform a personnel 
security file review of an HRP candidate and HRP-certified individual 
upon receiving the supervisory review, medical assessment, and 
management evaluation and recommendation.
    (b) If the personnel security file review is favorable, this 
information must be forwarded to the HRP certifying official. If the 
review reveals a security concern, or if a security concern is 
identified during another component of the HRP process, the HRP 
certifying official must be notified and the security concern evaluated 
in accordance with the criteria in 10 CFR part 710, subpart A. All 
security concerns must be resolved according to procedures outlined in 
10 CFR part 710, subpart A, rather than through the procedures in this 
part.
    (c) Any mental/personality disorder or behavioral issues found in a 
personnel security file, which could impact an HRP candidate or HRP-
certified individual's ability to perform HRP duties, may be provided 
in writing to the SOMD, Designated Physician, and Designated 
Psychologist previously identified for receipt of this information. 
Medical personnel may not share any information obtained from the 
personnel security file with anyone who is not an HRP certifying 
official.


Sec.  712.17  Instructional requirements.

    (a) HRP management officials at each DOE site or facility with HRP 
positions must establish an initial and annual HRP instruction and 
education program. The program must provide:
    (1) HRP candidates, HRP-certified individuals, supervisors, and 
managers, and supervisors and managers responsible for HRP positions 
with the knowledge described in paragraph (b)(1) of this section; and
    (2) For all HRP medical personnel, a detailed explanation of HRP 
duties and responsibilities.
    (b) The following program elements must be included in initial and 
annual instruction. The elements may be tailored to accommodate group 
differences and refresher training needs:
    (1) The objectives of the HRP and the role and responsibilities of 
each individual in the HRP to include recognizing and responding to 
behavioral change and aberrant or unusual behavior that may result in a 
risk to national security or nuclear explosive safety; recognizing and 
reporting security concerns and prescription drug use; and an 
explanation of return-to-work requirements and continuous evaluation of 
HRP participants; and
    (2) For those who have nuclear explosive responsibilities, a 
detailed explanation of duties and safety requirements.


Sec.  712.18  Transferring HRP certification.

    (a) For HRP certification to be transferred, the individual must 
currently be certified in the HRP.
    (b) Transferring the HRP certification from one site to another 
requires the following before the individual is allowed to perform HRP 
duties at the new site:
    (1) Verify that the individual is currently certified in the HRP 
and is transferring into a designated HRP position;
    (2) Incorporate the individual into the new site's alcohol and 
drug-testing program;
    (3) Ensure that the 12-month time period for HRP requirements that 
was established at the prior site is not exceeded; and
    (4) Provide site-specific instruction.
    (c) Temporary assignment to HRP positions at other sites requires 
verification that the individual is currently enrolled in the HRP and 
has completed all site-specific instruction. The individual is required 
to return to the site that maintains his or her HRP certification for 
recertification.


Sec.  712.19  Removal from HRP.

    (a) Immediate removal. A supervisor who has a reasonable belief 
that an HRP-certified individual is not reliable, based on either a 
safety or security concern, must immediately remove that individual 
from HRP duties pending a determination of the individual's 
reliability. A supervisor also must immediately remove an individual 
from HRP duties when requested to do so by the HRP certifying official. 
The supervisor must, at a minimum:
    (1) Require the individual to stop performing HRP duties;
    (2) Take action to ensure the individual is denied both escorted 
and unescorted access to the material access areas; and
    (3) Provide, within 24 hours, to the individual and the HRP 
management official, a written reason for these actions.
    (b) The temporary removal of an HRP-certified individual from HRP 
duties pending a determination of the individual's reliability is an 
interim, precautionary action and does not constitute a determination 
that the individual is not fit to perform his or her required duties. 
Removal is not, in itself, cause for loss of pay, benefits, or other 
changes in employment status.
    (c) Temporary removal. (1) If an HRP management official receives a 
supervisor's written notice of the immediate removal of an HRP-
certified individual, that official must direct the temporary removal 
of the individual pending an evaluation and determination of the 
individual's reliability.
    (2) If removal is based on a security concern, the HRP management 
official must notify the HRP certifying official and the applicable DOE 
personnel

[[Page 3230]]

security office. The security concern will be resolved under the 
criteria and procedures in 10 CFR part 710, subpart A.
    (3) If removal is based on a concern that is not security related, 
the HRP management official must conduct an evaluation of the 
circumstances or information that led the supervisor to remove the 
individual from HRP duties. The HRP management official must prepare a 
written report of the evaluation that includes a determination of the 
individual's reliability for continuing HRP certification.
    (4) If the HRP management official determines that an individual 
who has been temporarily removed continues to meet the requirements for 
certification, the HRP management official must:
    (i) Notify the individual's supervisor of the determination and 
direct that the individual be allowed to return to HRP duties;
    (ii) Notify the individual; and
    (iii) Notify the HRP certifying official.
    (5) If the HRP management official determines that an individual 
who has been temporarily removed does not meet the HRP requirements for 
certification, the HRP management official must forward the written 
report to the HRP certifying official. If the HRP certifying official 
is not the Manager, the HRP certifying official must review the written 
report and take one of the following actions:
    (i) Direct that the individual be reinstated and provide written 
explanation of the reasons and factual bases for the action;
    (ii) Direct continuation of the temporary removal pending 
completion of specified actions (e.g., medical assessment, treatment) 
to resolve the concerns about the individual's reliability; or
    (iii) Recommend to the Manager the revocation of the individual's 
certification and provide written explanation of the reasons and 
factual bases for the decision.
    (d) The Manager, on receiving the HRP management official's written 
report and the HRP certifying official's recommendation (if any), must 
take one of the following actions:
    (1) Direct reinstatement of the individual and provide written 
explanation of the reasons and factual bases for the action;
    (2) Direct revocation of the individual's HRP certification; or
    (3) Direct continuation of the temporary removal pending completion 
of specified actions (e.g., medical assessment, treatment) to resolve 
the concerns about the individual's reliability.
    (e) If the action is revocation, the Manager must provide the 
individual a copy of the HRP management official's report. The Manager 
may withhold such a report, or portions thereof, to the extent that he 
or she determines that the report, or portions thereof, may be exempt 
from access by the employee under the Privacy Act or the Freedom of 
Information Act.
    (f) If an individual is directed by the Manager to take specified 
actions to resolve HRP concerns, he or she must be reevaluated by the 
HRP management official and HRP certifying official after those actions 
have been completed. After considering the HRP management and HRP 
certifying officials' report and recommendation, the Manager must 
direct either:
    (1) Reinstatement of the individual; or
    (2) Revocation of the individual's HRP certification.
    (g) Notification of Manager's initial decision. The Manager must 
send by certified mail (return receipt requested) a written decision, 
including rationale, to the HRP-certified individual whose 
certification is revoked. The Manager's decision must be accompanied by 
notification to the individual, in writing, of the procedures 
pertaining to reconsideration or a hearing on the Manager's decision.


Sec.  712.20  Request for reconsideration or certification review 
hearing.

    (a) An HRP-certified individual who receives notification of the 
Manager's decision to revoke his or her HRP certification may choose 
one of the following options:
    (1) Take no action;
    (2) Submit a written request to the Manager for reconsideration of 
the decision to revoke certification. The request must include the 
individual's response to the information that gave rise to the concern. 
The request must be sent by certified mail to the Manager within 20 
working days after the individual received notice of the Manager's 
decision; or
    (3) Submit a written request to the Manager for a certification 
review hearing. The request for a hearing must be sent by certified 
mail to the Manager within 20 working days after the individual 
receives notice of the Manager's decision.
    (b) If an individual requests reconsideration by the Manager but 
not a certification review hearing, the Manager must, within 20 working 
days after receipt of the individual's request, send by certified mail 
(return receipt requested) a final decision to the individual. This 
final decision about certification is based on the individual's 
response and other relevant information available to the Manager.
    (c) If an individual requests a certification review hearing, the 
Manager must forward the request to the Office of Hearings and Appeals.


Sec.  712.21  Office of Hearings and Appeals.

    (a) The certification review hearing is conducted by the Office of 
Hearings and Appeals.
    (b) The hearing officer must have a DOE ``Q'' access authorization 
when hearing cases involving HRP duties.
    (c) An individual who requests a certification review hearing has 
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 to be accompanied and represented at the hearing by 
counsel or any other person of the individual's choosing and at the 
individual's own expense.
    (d) In conducting the proceedings, the hearing officer must:
    (1) Receive all relevant and material information relating to the 
individual's fitness for HRP duties through witnesses or documentation;
    (2) Ensure that the individual is permitted to offer information in 
his or her behalf; to call, examine, and cross-examine witnesses and 
other persons who have made written or oral statements, and to present 
and examine documentary evidence;
    (3) Require the testimony of the individual and all witnesses be 
given under oath or affirmation; and
    (4) Ensure that a transcript of the certification review 
proceedings is made.


Sec.  712.22  Hearing officer's report and recommendation.

    Within 30 calendar days of the receipt of the hearing transcript by 
the hearing officer or the closing of the record, whichever is later, 
the hearing officer must forward written findings, a supporting 
statement of reasons, and recommendation regarding the individual's 
eligibility for recertification in the HRP position to the Director, 
Office of Security. The hearing officer's report and recommendation 
must be accompanied by a copy of the record of the proceedings. The 
Director, Office of Security shall forward to the DOE Deputy Secretary 
a recommendation to either recertify or revoke the certification of an 
individual in the HRP.


Sec.  712.23  Final decision by DOE Deputy Secretary.

    Within 20 working days of the receipt of the Director, Office of 
Security's

[[Page 3231]]

recommendation, the Deputy Secretary should issue a final written 
decision. A copy of this decision must be sent by certified mail 
(return receipt requested) to the Manager and to the individual 
accompanied by a copy of the hearing officer's report and the 
transcript of the certification review proceedings.

Subpart B--Medical Standards


Sec.  712.30  Applicability.

    This subpart establishes standards and procedures for conducting 
medical assessments of DOE and DOE contractor individuals in HRP 
positions.


Sec.  712.31  Purpose.

    The standards and procedures set forth in this subpart are 
necessary for DOE to:
    (a) Identify the presence of any mental/personality disorders, 
physical, or behavioral characteristics or conditions that present or 
are likely to present an unacceptable impairment in reliability;
    (b) Facilitate the early diagnosis and treatment of disease or 
impairment and foster accommodation and rehabilitation;
    (c) Determine what functions an HRP-certified individual may be 
able to perform and to facilitate the proper placement of individuals; 
and
    (d) Provide for continuing monitoring of the health status of 
individuals to facilitate early detection and correction of adverse 
health effects, trends, or patterns.


Sec.  712.32  Designated Physician.

    (a) The Designated Physician must be qualified to provide 
professional expertise in the area of occupational medicine as it 
relates to the HRP.
    (b) The Designated Physician must:
    (1) Be a graduate of an accredited school of medicine or 
osteopathy;
    (2) Have a valid, unrestricted state license to practice medicine 
in the state where HRP medical assessments occur;
    (3) Have met the applicable HRP instruction requirements; and
    (4) Be eligible for the appropriate DOE access authorization.
    (c) The Designated Physician is responsible for the medical 
assessments of HRP candidates and HRP-certified 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 or issues that may disqualify an 
individual from the HRP;
    (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; and
    (6) Signing a recommendation about the medical fitness of an 
individual for certification or recertification.
    (d) The Designated Physician must 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, since the last designation, of a physical, mental/
personality disorder, or health condition that might affect his or her 
ability to perform professional duties.


Sec.  712.33  Designated Psychologist.

    (a) The Designated Psychologist reports to the SOMD and determines 
the psychological fitness of an individual to participate in the HRP. 
The results of this evaluation may be provided only to the Designated 
Physician or the SOMD.
    (b) The Designated Psychologist must:
    (1) Hold a doctoral degree from a clinical psychology program that 
includes a one-year clinical internship approved by the American 
Psychological Association or an equivalent program;
    (2) Have accumulated a minimum of three years postdoctoral clinical 
experience with a major emphasis in psychological assessment and 
testing;
    (3) Have a valid, unrestricted state license to practice clinical 
psychology in the state where HRP medical assessments occur;
    (4) Have met the applicable HRP instruction requirements; and
    (5) Be eligible for the appropriate DOE access authorization.
    (c) The Designated Psychologist is responsible for all 
psychological evaluations of HRP candidates, HRP-certified individuals, 
and others as directed by the SOMD. Although a portion of the 
psychological evaluation may be performed by another psychologist, the 
Designated Psychologist must:
    (1) Supervise the psychological evaluation process and designate 
which components may be performed by other qualified personnel;
    (2) Upon request of management, assess the psychological fitness of 
HRP candidates and HRP-certified individuals for HRP duties, including 
specific work settings, and recommend referrals as indicated; and
    (3) Make referrals for psychiatric, psychological, substance abuse, 
or personal or family problems, and monitor the progress of individuals 
so referred.
    (d) The Designated Psychologist must 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 since the last designation of a physical, mental/
personality disorder, or health condition that might affect his or her 
ability to perform professional duties.


Sec.  712.34  Site Occupational Medical Director.

    (a) The SOMD must nominate a physician to serve as the Designated 
Physician and a clinical psychologist to serve as the Designated 
Psychologist. The nominations must be sent through the Manager to the 
Deputy Assistant Secretary for Health or his or her designee. Each 
nomination must describe the nominee's relevant training, experience, 
and licensure, and include a curriculum vitae and a copy of the 
nominee's current state or district license.
    (b) The SOMD must submit a renomination report biennially through 
the Manager to the Deputy Assistant Secretary for Health or his or her 
designee. This report must be submitted at least 60 days before the 
second anniversary of the initial designation or

[[Page 3232]]

of the last redesignation, whichever applies. The report must include:
    (1) A statement evaluating the performance of the Designated 
Physician and Designated Psychologist during the previous designation 
period; and
    (2) A copy of the valid, unrestricted state or district license of 
the Designated Physician and Designated Psychologist.
    (c) The SOMD must submit, annually, to the Deputy Assistant 
Secretary for Health or his or her designee through the Manager, a 
written report summarizing HRP medical activity during the previous 
year. The SOMD must comply with any DOE directives specifying the form 
or contents of the annual report.
    (d) The SOMD must investigate any reports of performance issues 
regarding a Designated Physician or Designated Psychologist, and the 
SOMD may suspend either official from HRP-related duties. If the SOMD 
suspends either official, the SOMD must notify the Deputy Assistant 
Secretary for Health or his or her designee and provide supporting 
documentation and reasons for the action.


Sec.  712.35  Deputy Assistant Secretary for Health.

    The Deputy Assistant Secretary for Health or his or her designee 
must:
    (a) Develop policies, standards, and guidance for the medical 
aspects of the HRP, including the psychological testing inventory to be 
used;
    (b) Review the qualifications of Designated Physicians and 
Designated Psychologists, and concur or nonconcur with their 
designations by sending a statement to the Manager and an informational 
copy to the SOMD; and
    (c) Provide technical assistance on medical aspects of the HRP to 
all DOE elements and DOE contractors.


Sec.  712.36  Medical assessment process.

    (a) The Designated Physician, under the supervision of the SOMD, is 
responsible for the medical assessment of HRP candidates and HRP-
certified individuals. In carrying out this responsibility, the 
Designated Physician or the SOMD must integrate the medical 
evaluations, psychological evaluations, psychiatric evaluations, and 
any other relevant information to determine an individual's overall 
medical qualification for assigned duties.
    (b) Employers must provide a job task analysis for those 
individuals involved in HRP duties to both the Designated Physician and 
the Designated Psychologist before each medical assessment and 
psychological evaluation. HRP medical assessments and psychological 
evaluations may not be performed if a job task analysis has not been 
provided.
    (c) The medical process by the Designated Physician includes:
    (1) Medical assessments for initial certification, annual 
recertification, and evaluations for reinstatement following temporary 
removal from the HRP;
    (2) Evaluations resulting from self-referrals and referrals by 
management;
    (3) Routine medical contacts and occupational and nonoccupational 
health counseling sessions; and
    (4) Review of current legal drug use.
    (d) Psychological evaluations must be conducted:
    (1) For initial certification. This psychological evaluation 
consists of a generally accepted psychological assessment (test) 
approved by the Deputy Assistant Secretary for Health or his or her 
designee and a semi-structured interview.
    (2) For recertification. This psychological evaluation consists of 
a semi-structured interview, which is conducted annually at the time of 
the medical examination.
    (3) Every third year. The medical assessment for recertification 
must include a generally accepted psychological assessment (test) 
approved by the Deputy Assistant Secretary for Health or his or her 
designee.
    (4) When the SOMD determines that additional psychological or 
psychiatric evaluations are required to resolve HRP concerns as listed 
in Sec.  712.13(c).
    (e) Following absences requiring return-to-work evaluations under 
applicable DOE directives, the Designated Physician, the Designated 
Psychologist, or the SOMD must determine whether a psychological 
evaluation is necessary.
    (f) Except as provided in paragraph (g) of this section, the 
Designated Physician must forward the completed medical assessment of 
an HRP candidate and HRP-certified individual to the SOMD, who must 
make a recommendation, based on the assessment, to the individual's HRP 
management official. If the Designated Physician determines that a 
currently certified individual no longer meets the HRP requirements, 
the Designated Physician must immediately, orally, inform the HRP 
management official. A written explanation must follow within 24 hours.
    (g) The Designated Physician, the Designated Psychologist, or the 
SOMD may make a medical recommendation for return to work and work 
accommodations for HRP-certified individuals.
    (h) The following documentation is required after treatment of an 
individual for any disqualifying condition:
    (1) A summary of the diagnosis, treatment, current status, and 
prognosis to be furnished by the treatment provider to the Designated 
Physician;
    (2) The medical opinion of the Designated Physician advising the 
individual's supervisor whether the individual is able to return to 
work in either an HRP or non-HRP capacity; and
    (3) Any periodic monitoring plan, approved by the Designated 
Physician or the Designated Psychologist and the SOMD, used to evaluate 
the reliability of the individual.
    (i) If the disqualifying condition was of a security concern, the 
appropriate procedure described in 10 CFR part 710, subpart A, applies.


Sec.  712.37  Evaluation for hallucinogen use.

    If DOE determines that an HRP candidate or HRP-certified individual 
has used any hallucinogen, the individual is not eligible for 
certification or recertification unless:
    (a) Five years have passed since the last use of the hallucinogen;
    (b) There is no evidence of any flashback within the last five 
years from the previous hallucinogen use; and
    (c) The individual has a record of acceptable job performance and 
observed behavior.


Sec.  712.38  Maintenance of medical records.

    (a) The medical records of HRP candidates and HRP-certified 
individuals must 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 individual exposure and 
medical records, 29 CFR 1910.1020; and applicable DOE directives. DOE 
contractors also may be subject to section 503 of the Rehabilitation 
Act, 29 U.S.C. 793, and its implementing rules, including 
confidentiality provisions in 41 CFR 60-741.23 (d).
    (b) The psychological record of HRP candidates and HRP-certified 
individuals is a component of the medical record. The psychological 
record must:
    (1) Contain any clinical reports, test protocols and data, notes of 
individual 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; and
    (3) Be kept separate from other medical record documents, with 
access

[[Page 3233]]

limited to the SOMD and the Designated Physician.

[FR Doc. 04-1316 Filed 1-22-04; 8:45 am]
BILLING CODE 6450-01-P