[Federal Register Volume 82, Number 119 (Thursday, June 22, 2017)]
[Proposed Rules]
[Pages 28412-28426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12810]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 82, No. 119 / Thursday, June 22, 2017 / 
Proposed Rules  

[[Page 28412]]



DEPARTMENT OF ENERGY

10 CFR Part 712

RIN 1992-AA44


Human Reliability Program

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: DOE proposes to amend its regulation concerning the Human 
Reliability Program (HRP). This regulation provides the policies and 
procedures to ensure that individuals who occupy positions affording 
unescorted access to certain nuclear materials, nuclear explosive 
devices, facilities and programs meet the highest standards of 
reliability and physical and mental suitability. The proposed revisions 
include some clarification of the procedures and burden of proof 
applicable in certification review hearings, the addition and 
modification of certain definitions, and a clear statement that a 
security concern can be reviewed pursuant to DOE regulations for 
determining eligibility for access to classified matter or special 
nuclear material and/or the HRP regulation. These proposed revisions 
are intended to provide better guidance to HRP-certified individuals 
and to ensure consistency in HRP decision making.

DATES:  Written comments must be postmarked on or before July 24, 2017 
to ensure consideration.

ADDRESSES: You may submit comments, identified by RIN 1992-AA44, by any 
of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the Instructions for submitting comments.
    2. Email: [email protected]. Include RIN 1992-AA44 in the 
subject line of the message.
    3. Mail: U.S. Department of Energy, Office of Corporate Security 
Strategy, Analysis and Special Operations, AU-1.2, 1000 Independence 
Avenue SW., Washington, DC 20585.
    Due to potential delays in DOE's receipt and processing of mail 
sent through the U.S. Postal Service, DOE encourages responders to 
submit comments electronically to ensure timely receipt.
    All submissions must include the RIN for this rulemaking, RIN 1992-
AA44. For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the ``Public Comment 
Procedures'' heading of the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: Gina Cano, Office of Corporate 
Security Strategy, Analysis and Special Operations, (202) 586-7079, 
[email protected]; Pamela Arias-Ortega, National Nuclear Security 
Administration, Office of the General Counsel, (505) 845-4441, 
[email protected]; or Christina Pak or Matt Rotman, 
Office of the General Counsel, (202) 586-4114, [email protected] 
(Ms. Pak) or (202) 586-4753, [email protected] (Mr. Rotman).

SUPPLEMENTARY INFORMATION:
I. Background
II. Description of Proposed Changes
III. Regulatory Review and Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the National Environmental Policy Act
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the Unfunded Mandates Reform Act of 1995
    F. Review Under the Treasury and Government Appropriations Act, 
1995
    G. Review Under Executive Order 13132
    H. Review Under Executive Order 12988
    I. Review Under the Treasury and General Government 
Appropriations Act, 2001
    J. Review Under Executive Order 13211
IV. Approval by the Office of the Secretary

I. Background

    Pursuant to the Atomic Energy Act of 1954, as amended, (the AEA), 
the DOE owns and leases defense nuclear and other facilities in various 
locations in the United States. These facilities are operated by 
contractors with DOE oversight or are operated by DOE. These facilities 
are involved in (among other activities) researching, testing, 
producing, disassembling, or transporting nuclear materials. Compromise 
of these DOE facilities could severely damage national security. To 
guard against such compromise, DOE established the Human Reliability 
Program (HRP). The HRP is designed to ensure that individuals who 
occupy positions affording unescorted access to certain nuclear 
materials, facilities and programs meet the highest standards of 
reliability as well as physical and mental suitability, through a 
system of continuous evaluation of those individuals. The purpose of 
this continuous evaluation is to identify in a timely manner 
individuals whose judgment may be impaired by physical or 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. If any of these conditions or circumstances is identified, the 
HRP provides for an administrative process, including the opportunity 
for a certification review hearing that results in either the 
revocation or reinstatement of the individual's HRP certification.
    The part 712 regulation has not been comprehensively updated since 
it was promulgated in 2004. Two technical amendments to the regulation 
were made in 2011 and 2013. In 2011, the part 712 regulation was 
amended to designate the appropriate Undersecretary as the person with 
the authority to issue a final written decision to recertify or revoke 
the certification of an individual in the HRP. 76 FR 12271 (Mar. 7, 
2011). In 2013, the part 712 regulation was amended to eliminate 
references to obsolete provisions and to reflect organizational changes 
within the DOE. 78 FR 56132 (Sep. 12, 2013).
    In the 12 years since the HRP regulation was first promulgated, it 
has become apparent that certain additional updates are necessary in 
the sections pertaining to security concerns and the process related to 
certification review hearings.

A. Security Concerns

    The paramount intent of the HRP is to protect national security via 
the identification of individuals whose judgment and reliability may be 
impaired by any condition or circumstance that raises safety and/or 
security concerns. The existing regulation contains language that could 
be erroneously interpreted to mean that

[[Page 28413]]

security concerns fall solely under the purview of 10 CFR part 710, 
which is the DOE regulation pertaining to personnel security 
clearances. The part 710 regulations contain procedures that are 
intended to identify and mitigate security concerns as they pertain to 
individuals who hold security clearances. However, compliance with the 
part 710 does not equate to being certified in the HRP, and in fact, 
the parts 710 and 712 regulations represent two distinct programs. 
While an employee can have a security clearance without being certified 
in the HRP, no employee can participate in the HRP without a security 
clearance. A general requirement in the existing HRP regulation, which 
remains in the proposed revision, is that an employee must maintain a 
security clearance and specifically a ``Q'' clearance. See 10 CFR 
712.11(a)(1).
    Because the HRP-certified individuals must meet the highest 
standards of reliability and physical and mental suitability, the 
procedures for considering security concerns under part 710 are not 
adequate to address all security and safety concerns in the context of 
the HRP. For example, under part 710, the DOE personnel who adjudicate 
security clearances are not permitted to review the requirements of the 
individual's job when considering whether to grant, suspend, and/or 
revoke his security clearance. However, in determining whether to grant 
HRP certification under part 712, the individual's job and duties are 
important factors to be considered. In addition, the denial or 
revocation of HRP certification under part 712 may be based on safety 
issues that are not relevant to adjudication under 10 CFR part 710, 
even if the same underlying facts raised security concerns that were 
fully resolved and/or mitigated for security clearance purposes. As 
such, we are proposing to revise the part 712 regulation to clarify 
that security concerns are not to be reviewed solely under the part 710 
regulations, but rather can also be reviewed under part 712, utilizing 
the predictive judgments of the HRP personnel with specific expertise 
in assessing both safety and security risks.

B. Certification Review Hearings

    The proposed part 712 revisions fill a void in the existing 
regulation by setting forth the evidentiary burden that an individual 
must meet at a certification review hearing. In addition, in order to 
provide greater structure to the hearing process, the proposed 
regulation adopts some of the procedures that are currently applied in 
the context of administrative review hearings under part 710. Although 
the content of part 710 hearings is somewhat different from that of 
part 712 hearings, the process for conducting both types of hearings is 
similar, which is reflected in the procedures we propose to adopt. 
Finally, the proposed revisions provide that the Administrative Judge 
who presides over the certification review hearing must prepare a 
written decision, rather than a written recommendation, to be provided 
to the individual and the Manager and which may be appealed by either 
party.

II. Description of Proposed Changes

    DOE is publishing this notice of proposed rulemaking (NOPR) to 
update and clarify the policies and procedures, to include the 
definition of terms used, that apply to HRP certification. The proposed 
revisions would update and add to some of the definitions. 
Additionally, the proposed rule would: (1) Identify the evidentiary 
burden applicable to an individual requesting a certification review 
hearing; (2) clarify that a security concern is reviewable under HRP 
separate from a review pursuant to 10 CFR part 710; (3) eliminate 
obsolete references; and (4) clarify the processes and procedures 
during the removal, revocation, hearing, and appeal stages.
    The proposed changes to part 712 are summarized below in the order 
in which they appear:
    1. The proposed changes to Sec.  712.2 ``Applicability'' would add 
the National Nuclear Security Administration (NNSA) to clarify that 
part 712 applies to both the DOE and the NNSA and delete the last 
sentence regarding the grandfathering of positions. The last sentence 
of this section is obsolete because it is no longer necessary to 
grandfather individuals in from the Personnel Assurance Program (PAP) 
or the Personnel Security Assurance Program (PSAP). When part 712 was 
enacted in 2004, it was necessary to include such language since the 
HRP combined both the PAP and PSAP.
    2. In proposed Sec.  712.3 ``Definitions,'' three new definitions 
are proposed, a number of current definitions are modified, and one 
definition is deleted. The proposed rule would add the new definitions: 
``Case Chronology,'' ``Evaluative Report,'' and ``Restoration.'' The 
proposed new definitions ``Case Chronology'' and ``Evaluative Report'' 
relate to new provisions in proposed Sec.  712.19 that are intended to 
provide clarity and consistency among the programmatic elements 
administering the HRP. The proposed new definition ``Restoration'' 
would provide clarity as to the specific actions that must be taken to 
return an individual to HRP duties after a cognizant Under Secretary or 
his/her designee restores an individual's HRP certification. The 
proposed rule would modify the definitions: ``Contractors,'' 
``Designated Physician,'' ``Designated Psychologist,'' 
``Recertification,'' ``Reinstatement,'' ``Safety concern,'' ``Security 
concern,'' and ``Site Occupational Medical Director (SOMD).'' The title 
``Director, Office of Health and Safety'' is changed to ``Associate 
Under Secretary for Environment, Health, Safety and Security.''
    3. In proposed Sec.  712.10 ``Designation of HRP positions,'' 
current Sec.  712.10(b) is modified to replace the title ``Chief 
Health, Safety and Security Officer'' with ``Associate Under Secretary 
for Environment, Health, Safety and Security.''
    4. In proposed Sec.  712.11 ``General requirements for HRP 
certification,'' current Sec.  712.11(a) is modified to delete the word 
``certification'' since it is clear that the requirements set forth in 
this section relate to requirements for HRP certification or 
recertification. Current Sec.  712.11(a)(1) is modified to delete the 
language ``based on a background investigation'' because it is 
unnecessary to specify the basis for an access authorization and may 
preclude other authorized means for DOE to grant an access 
authorization. Current Sec.  712.11(a)(2) is deleted, as the 
requirement for an annual security review is already set forth in 
proposed Sec.  712.11(a)(4), current Sec.  712.11(a)(5). Current Sec.  
712.11(a)(5)(i), (ii), and (iii) are deleted and relocated, in 
substance, to proposed Sec.  712.16(e) and (b), because they fall more 
logically under the section that describes the personnel security 
review. Current Sec.  712.11(a)(7) is deleted in the entirety because 
the requirement for a psychological examination is already captured by 
the requirement for a medical assessment described in proposed Sec.  
712.11(a)(4), current Sec.  712.11(a)(5). The psychological examination 
is a necessary part of the medical assessment, as is described in 
proposed Sec.  712.14(f). Proposed Sec.  712.11(a)(6), currently Sec.  
712.11(a)(8), deletes the language ``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,'' as this 
is already addressed in proposed Sec.  712.15(b), the subsection that 
deals with drug testing. Proposed Sec.  712.11(a)(7), currently Sec.  
712.11(a)(9),

[[Page 28414]]

deletes the language ``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),'' as this is already addressed in proposed Sec.  712.15(c), 
the subsection that deals with alcohol testing. Current Sec.  
712.11(b)(1) and (2) are merged and redesignated as proposed Sec.  
712.11(c), as these paragraphs both concern the requirements applicable 
to an individual whose position becomes an HRP position after he or she 
has already begun employment. Current Sec.  712.11(c) and (d) are 
redesignated as proposed Sec.  712.11(d) and (e), respectively. Current 
Sec.  712.11(e) is deleted in the entirety as its content concerning 
drug and alcohol testing is already addressed in proposed Sec.  712.15. 
Proposed Sec.  712.11(f) is added to emphasize that national security 
and safety are the paramount concerns of the HRP. This mirrors a 
similar provision under DOE's security clearance regulations at 10 CFR 
part 710.
    5. In proposed Sec.  712.12 ``HRP implementation,'' the deadlines 
for HRP implementation specified in Sec.  712.12(a) and (b)(1) are 
deleted, since they occurred over a decade ago and are now obsolete. 
Current Sec.  712.12(b)(2) is deleted in the entirety, as the HRP 
management official's responsibilities with respect to temporary 
removal and reinstatement are already addressed in proposed Sec.  
712.19. Current Sec.  712.12(c)(1) is modified to replace the title 
``Chief Health, Safety and Security Officer'' with ``Associate Under 
Secretary for Environment, Health, Safety and Security.'' Current Sec.  
712.12(d) is deleted in the entirety as the role of the cognizant Under 
Secretary with respect to final decisions is already addressed in 
proposed Sec.  712.24. Current Sec.  712.12(e), (f), (g), and (h) are 
redesignated as proposed Sec.  712.12(d), (e), (f), and (g), 
respectively. Current Sec.  712.12(e), and proposed as Sec.  712.12(d), 
is modified to replace the title ``Director, Office of Security'' with 
``Associate Under Secretary for Environment, Health, Safety and 
Security.'' Current Sec.  712.12(f)(1), and proposed as Sec.  
712.12(e)(1), is modified to replace the title ``Director, Office of 
Security'' with ``Director, Office of Corporate Security, Strategy 
Analysis and Special Operations.'' Current Sec.  712.12(h)(3) is 
relocated to proposed Sec.  712.25(a), as it fits more logically under 
the section that describes the individual's responsibility to 
cooperate.
    6. In proposed Sec.  712.13 ``Supervisory review,'' proposed Sec.  
712.13(b) is modified to clarify that the annual reviews and 
evaluations by supervisors of HRP-certified individuals are based on 
any and all information within the supervisor's personal knowledge 
related to the individual that he or she supervises. Current Sec.  
712.13(c) is modified to include an additional type of behavior and/or 
concern that would indicate a concern for HRP certification. The new 
proposed language would cover any unusual conduct or circumstance that 
would tend to show the individual is not reliable. The provisions in 
current Sec.  712.13(d) that deal with temporary removal are deleted, 
as those procedures are already addressed in proposed Sec. Sec.  712.14 
and 712.19. The provisions of current Sec.  712.13(d) concerning 
immediate removal are replaced with the substance of current Sec.  
712.19(a) and Sec.  712.13(e), which identify the circumstances under 
which immediate removal is required. The provisions of current Sec.  
712.13(e) that identifies the circumstance under which immediate 
removal is required are relocated to proposed Sec.  712.13(d), with the 
clarification that the requirement to immediately remove applies to all 
individuals and not just Federal employees. Additionally, proposed 
Sec.  712.13(e) deletes language mandating a certain personnel action, 
such as a temporary reassignment, when an individual is immediately 
removed. Current Sec.  712.13(f) is deleted in its entirety and its 
substance is relocated and merged with current Sec.  712.15(c), the 
paragraph that deals with alcohol testing. Proposed Sec.  712.13(f) is 
added to specify the actions to be taken in connection with an 
immediate removal. This language, which can be found at current Sec.  
712.19(a), fits more logically in Sec.  712.13, which addresses the 
role of the supervisor. Proposed Sec.  712.13(f) is modified from the 
language in current Sec.  712.19(a) to eliminate the requirement by the 
supervisor to notify the individual of the immediate removal. Instead, 
notification to the individual is to be provided by the management 
official upon temporary removal consistent with proposed Sec.  712.19.
    7. In proposed Sec.  712.14 ``Medical assessment,'' the last 
sentence of current Sec.  712.14(c) describing the responsibilities of 
the Designated Physician or SOMD when a security concern is identified 
is deleted, as these responsibilities are already addressed in proposed 
Sec.  712.19. Current Sec.  712.14(f)(1) and (f)(3) are modified to 
replace the titles ``Director, Office of Health and Safety'' with 
``Associate Under Secretary for Environment, Health, Safety and 
Security.'' Current Sec.  712.14(h) is modified to delete ``for 
concurrence'' in the second to last sentence as the responsibilities of 
the Designated Physician, Designated Psychologist, and the SOMD to make 
a written recommendation as to reinstating or removing a medical 
restriction are already set forth clearly and the terms ``for 
concurrence'' is not necessary. Additionally, current Sec.  712.14(j) 
would delete ``required'' and add in its place ``recommended'' to 
clarify that the determination to temporarily remove an individual from 
HRP duties would be made by the management official upon the 
recommendation of the Designated Physician, Designated Psychologist, or 
the SOMD.
    8. In proposed Sec.  712.15 ``Management evaluation,'' proposed 
Sec.  712.15(a) is modified to clarify that the HRP management official 
must act in accordance with the procedures for temporary removal, set 
forth in proposed Sec.  712.19, upon the identification of a safety or 
a security concern with respect to an HRP-certified individual. 
Additionally, proposed Sec.  712.15(a) is modified to delete any 
requirement that the supervisor temporarily reassign an individual to 
non-HRP duties upon immediate removal. Proposed Sec.  712.15(b) is 
modified to clarify that if an HRP-certified individual refuses to 
submit to a drug test, or if the individual submits to the test but the 
results are not favorable, the supervisor must immediately remove the 
individual from HRP and take the actions specified in proposed Sec.  
712.13(f). Proposed Sec.  712.15(c) is modified to incorporate the 
substance of current Sec.  712.13(f), which deals with alcohol testing, 
as discussed in this preamble and to clarify that if an HRP-certified 
individual's test result is at or above a certain level, then the 
supervisor should take actions consistent with Sec.  712.13(f).
    9. The title of proposed Sec.  712.16 is changed from ``DOE 
security review'' to ``Security review.'' Proposed Sec.  712.16(a) is 
modified to eliminate the requirement that the security review be 
initiated only after the medical assessment and management evaluations 
are completed. Proposed Sec.  712.16(b) is modified to incorporate the 
content of current Sec.  712.11(a)(5)(ii) and (iii), with the exception 
of the last clause of paragraph (a)(5)(iii) which is deleted. 
Additionally proposed Sec.  712.16(b) is modified to delete the 
reference to the 10 CFR part 710 criteria since the criteria were 
eliminated in a recent proposed amendment to 10 CFR part 710. The last 
sentence of current Sec.  712.16(b) is deleted to clarify that security 
concerns may be addressed by HRP officials in accordance with HRP 
reliability

[[Page 28415]]

standards, in addition to security clearance adjudicators under 10 CFR 
part 710. Proposed Sec.  712.16(c) is added to clarify that HRP 
determinations are to be made independently of security clearance 
determinations under 10 CFR part 710. Current Sec.  712.16(c) is 
redesignated as proposed Sec.  712.16(d) and modified to clarify that 
medical personnel may share information from the personnel security 
file only as permitted by the Privacy Act of 1974. Proposed Sec.  
712.16(e) incorporates the content of current Sec.  712.11(a)(5)(i), as 
described in this preamble, and is modified to clarify that when the 
DOE personnel security review is not completed within the required 12-
month time period for recertification, the HRP certifying official's 
decision to recertify or temporarily remove an individual in the HRP is 
an interim decision pending the completion of the security review.
    10. In proposed Sec.  712.17 ``Instructional requirements,'' 
proposed Sec.  712.17(b)(1) is modified to clarify the type of medical 
conditions that need to be reported by each individual in the HRP.
    11. The title of proposed Sec.  712.19 is modified to ``Actions 
related to Removal, Revocation and/or Reinstatement.'' Current Sec.  
712.19(a) is relocated to proposed Sec.  712.13(f), as described in 
this preamble, under the section that describes the roles and 
responsibilities of the supervisor. Proposed Sec.  712.19(a) 
incorporates the substance of current Sec.  712.19(c)(1) and sets forth 
additional circumstances under which the HRP management official must 
temporarily remove an individual from HRP. These circumstances include 
when the HRP management official has identified a concern during the 
management evaluation (as set forth in proposed Sec.  712.15), when the 
individual has been immediately removed by the supervisor (in 
accordance with proposed Sec.  712.13), or when temporary removal has 
been recommended by a medical professional associated with the HRP 
(under proposed Sec.  712.14). Language is added to current Sec.  
712.19(b) which requires the HRP management official to notify the 
individual, in writing, that s/he is temporarily removed. Current Sec.  
712.19(c)(2) is redesignated as proposed Sec.  712.19(c) and is 
modified with the deletion of the last sentence. Current Sec.  
712.19(c)(3) is redesignated as proposed Sec.  712.19(d) and is 
modified to require that the HRP management official obtain a 
recommendation from an HRP medical professional if temporary removal 
was based on a concern that is medical-related, and to delete the 
requirement that the management official prepare a written report of 
the evaluation. Current Sec.  712.19(c)(4) is redesignated as proposed 
Sec.  712.19(e) and is modified to clarify the actions to be taken by 
the HRP management official upon determining that an individual who was 
temporarily removed continues to meet the requirements for HRP 
certification. Current Sec.  712.19(c)(5) is redesignated as proposed 
Sec.  712.19(f) and is modified to state that if the HRP management 
official makes a determination that an individual does not meet HRP 
certification requirements, then a case chronology that explains why 
the individual does not meet the requirement for certification must be 
prepared for the HRP certifying official and, further, that the HRP 
management official's determination must be based on one or more of the 
types of behaviors and conditions identified in proposed Sec.  
712.13(c). Proposed Sec.  712.19(f)(1) is modified to clarify that the 
individual must be notified if his or her HRP certification is 
reinstated by the HRP certifying official. Proposed Sec.  712.19(f)(3) 
is modified to clarify the process to be followed should an HRP 
certifying official recommend revocation of an individual's 
certification in the HRP, including the preparation of an evaluative 
report and a role for the appropriate DOE or NNSA counsel, as well as a 
course of action to be followed if the HRP certifying official is the 
same person as the Manager. Current Sec.  712.19(d) is redesignated as 
proposed Sec.  712.19(g) and is modified to replace the phrase 
``written report'' with the proposed concepts ``case chronology'' and 
``evaluative report'' and to clarify the requirement that the 
individual be notified if his or her HRP certification is reinstated by 
the Manager. Current Sec.  712.19(e) is merged with current Sec.  
712.19(g), as both paragraphs deal with actions to be taken upon a 
decision to revoke, and is redesignated as proposed Sec.  712.19(h). 
Current Sec.  712.19(f) is redesignated as proposed Sec.  712.19(i) and 
is modified to reflect that the HRP certifying official, in addition to 
the Manager, can direct that an individual take certain actions to 
attempt to resolve HRP concerns and to clarify the process to be 
followed once those actions have been completed.
    12. In proposed Sec.  712.20, ``Request for reconsideration or 
certification review hearing,'' proposed Sec.  712.20 is modified to 
delete paragraph (a)(1) and relocate the substance to proposed new 
paragraph (d) and to further clarify that a failure to take action in 
response to the Manager's decision to revoke HRP certification means 
that the Manager's decision becomes a final agency decision. Proposed 
Sec.  712.20(b) is modified to clarify that a ``final decision'' refers 
to a ``final agency decision'' and to delete the final sentence, so as 
not to unreasonably limit the information relied upon by the Manager in 
issuing a final decision.
    13. Proposed Sec.  712.21 clarifies the process for appointing DOE 
counsel when an individual requests a certification review hearing. 
This requirement and language is consistent with the procedures that 
pertain to administrative review hearings under 10 CFR part 710. 
Proposed Sec.  712.21(a) is modified to replace the reference to the 
local Chief Counsel and the General Counsel with a general description 
requiring appointment of counsel so that this regulation will not be 
outdated if there is a change to titles and organizations in DOE.
    14. Current Sec.  712.21 is redesignated as proposed Sec.  712.22 
in accordance with the addition of proposed Sec.  712.21. The term 
``hearing officer'' is replaced throughout this section, and wherever 
it appears in this part, with ``Administrative Judge'' for the reasons 
set forth in 78 FR 52389 (Aug. 23, 2013). Proposed Sec.  712.22(a) is 
modified to specify who is responsible for appointing an Administrative 
Judge. Proposed Sec.  712.22(d) is added to establish the individual's 
burden at a certification review hearing. For purposes of due process, 
it is critical that the individual whose HRP certification has been 
revoked fully understand the nature and scope of evidence that he or 
she must present. ``Specifically, the individual must present evidence 
to show that the revocation decision was either clearly erroneous or 
that extraordinary circumstances warrant recertification into HRP. The 
individual cannot satisfy this burden upon a showing that DOE's 
security or safety concerns have been mitigated during the time since 
the decision was made to revoke. Rather, the individual must point to a 
clear factual error underlying that decision or to some circumstance 
that is so extraordinary that it warrants reversal of the decision. 
This is a more burdensome standard to meet than the standard applicable 
to security clearance hearings under 10 CFR part 710, but it is 
consistent with the objective that HRP-certified individuals meet the 
highest standards of reliability as well as physical and mental 
suitability. Proposed Sec.  712.22(e) is added to clarify the DOE 
counsel's role at the certification review hearing, which is consistent 
with the DOE counsel's role

[[Page 28416]]

in administrative review hearings under 10 CFR part 710.
    Current Sec.  712.22(e) is redesignated as proposed Sec.  712.22(f) 
in accordance with the addition of proposed Sec.  712.22(e). Proposed 
Sec.  712.22(f)(1), (2) and (7) and Sec.  712.22(g) and (h) are added 
to clarify the responsibilities and authority of the Administrative 
Judges who perform certification review hearings. The added language is 
consistent with the responsibilities and authorities of the 
Administrative Judges who perform administrative review hearings under 
10 CFR part 710. Proposed Sec.  712.22(i) is added to clarify the 
Administrative Judge's responsibility to prepare a decision, and what 
the decision must contain. Proposed Sec.  712.22(i) also directs the 
Administrative Judge to ensure that any doubt as to an individual's 
certification shall be resolved against the individual in favor of 
national security and/or safety. This direction to err on the side of 
security and safety is consistent with a similar provision in 10 CFR 
part 710 and Executive Order 12968 (Aug. 4, 1995).
    15. Current Sec.  712.22 is redesignated as proposed Sec.  712.23 
in accordance with the addition of proposed Sec.  712.21. The title is 
modified to reflect that a decision, not a recommendation, is issued by 
the Administrative Judge at the conclusion of the hearing. The position 
of ``Chief Health Safety and Security Officer'' is replaced through 
this section, and wherever it appears in this part, with ``Associate 
Under Secretary for Environment, Health, Safety, and Security'' to 
reflect organizational changes within the Department. The first 
sentence of proposed Sec.  712.23(a) is modified to state simply that 
the Administrative Judge's decision be forwarded to the Associate Under 
Secretary for Environment, Health, Safety and Security, as the contents 
of this decision are already described in proposed Sec.  712.22(i). 
Further, the term ``must'' is replaced with ``should'' in order to 
clarify that issuance of the decision within 30 calendar days is an 
aspiration rather than a requirement. In addition, the proposed Sec.  
712.23 would no longer require the Associate Under Secretary for 
Environment, Health, Safety, and Security to make a recommendation to 
recertify or revoke the certification of an individual in the HRP. 
Instead, a new proposed paragraph (b) requires the Associate Under 
Secretary for Environment, Health, Safety, and Security to notify the 
individual and the Manager of the Administrative Judge's decision and 
the appeal procedures available, and to provide them a copy of the 
Administrative Judge's decision and the administrative record. A new 
proposed paragraph (c) provides the individual and the Manager the 
right to file a written request for further review of the 
Administrative Judge's decision with the cognizant Under Secretary. A 
new proposed paragraph (d) requires the Manager to provide the 
individual with a copy of any request for further review filed by the 
Manager. A new proposed paragraph (e) requires the request for review 
to include a statement identifying the issues on which the cognizant 
Under Secretary should focus. A new proposed paragraph (f) clarifies 
that the Administrative Judge's decisions become final if neither the 
individual nor the Manager files a written request for review of the 
decision. The provisions of proposed Sec.  712.23 are generally 
consistent with the procedures for notification and appeal of an 
Administrative Judge's decision in a security clearance hearing under 
10 CFR part 710.
    16. Current Sec.  712.23 is redesignated as proposed Sec.  712.24 
in accordance with the addition of proposed Sec.  712.21. A new 
proposed paragraph (a) would require the Associate Under Secretary for 
Environment, Health, Safety, and Security to forward the request for 
review, the Administrative Judge's decision and the administrative 
record to the cognizant Under Secretary. Proposed paragraph (b) would 
delete the 20-working day requirement in order to ensure that the 
cognizant Under Secretary has sufficient time to render a final 
decision. Proposed paragraph (b) is further modified to allow the 
cognizant Under Secretary to delegate the authority to issue a final 
decision, and to require that final decisions expressly state whether 
the individual's certification is revoked or restored, in order to 
avoid any possible confusion. A new proposed paragraph (c) would 
clarify that the cognizant Under Secretary's decision shall be based 
only on evidence and information in the administrative record at the 
time of the Administrative Judge's decision.
    17. Proposed Sec.  712.25 is added to require HRP candidates and 
HRP-certified individuals to cooperate in all aspects of the HRP 
process. Proposed Sec.  712.25(a), in addition to incorporating current 
Sec.  712.12(h)(3), as described above, specifies that failure to 
cooperate may result in a determination not to grant HRP certification, 
for candidates, or revocation, for HRP-certified individuals. Proposed 
Sec.  712.25(b) establishes a process by which an HRP-certified 
individual whose certification was revoked for failure to cooperate may 
request that the Manager reconsider this decision. This reconsideration 
process is modelled after a similar process set forth in DOE's security 
clearance regulations at 10 CFR part 710.

III. Regulatory Review

A. Review Under Executive Order 12866 and 13563

    The regulatory action proposed today has been determined not to be 
a ``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this proposed rule is not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs 
within the Office of Management and Budget.
    DOE has also reviewed the proposed regulation pursuant to Executive 
Order 13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). 
Executive Order 13563 is supplemental to and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
agencies are required by Executive Order 13563 to: (1) Propose or adopt 
a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); (2) tailor regulations to impose the least 
burden on society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent practicable, 
the costs of cumulative regulations; (3) select, in choosing among 
alternative regulatory approaches, those approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety, and other advantages; distributive impacts; and equity); 
(4) to the extent feasible, specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt; and (5) identify and assess available alternatives to 
direct regulation, including providing economic incentives to encourage 
the desired behavior, such as user fees or marketable permits, or 
providing information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. In its 
guidance, the Office of Information and Regulatory Affairs has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from

[[Page 28417]]

technological innovation or anticipated behavioral changes. DOE 
believes that this NOPR is consistent with these principles, including 
the requirement that, to the extent permitted by law, agencies adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs and, in choosing among alternative regulatory approaches, 
those approaches maximize net benefits.

B. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this proposed rule falls 
into a class of actions which would not individually or cumulatively 
have significant impact on the human environment, as determined by 
DOE's regulations (10 CFR part 1021, subpart D) implementing the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.). Specifically, this proposed rule is categorically excluded from 
NEPA review because the amendments to the existing rule are strictly 
procedural (categorical exclusion A6). Therefore, this proposed rule 
does not require an environmental impact statement or environmental 
assessment pursuant to NEPA.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. 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 on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site at http://www.energy.gov/gc/office-general-counsel.
    This proposed rule would amend procedures that apply to the 
certification of individuals in the HRP. The proposed rule applies to 
individuals, and would not apply to ``small entities,'' as that term is 
defined in the Regulatory Flexibility Act. As a result, if adopted, the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.
    Accordingly, DOE certifies that the proposed rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis is required.

D. Review Under the Paperwork Reduction Act

    This proposed rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq.

E. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a detailed assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking does not impose a Federal mandate on State, 
local or tribal governments or on the private sector.

F. Review Under the Treasury and Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rule or policy that may affect 
family well-being. The proposed rule, if adopted, will have no impact 
on family well-being. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

G. Review Under Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined this proposed rule and has 
determined that it does not preempt State law and, if adopted, would 
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. 
No further action is required by Executive Order 13132.

H. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction.
    With regard to the review required by section 3(a), 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 proposed regulation meet the relevant standards 
of Executive Order 12988.

I. 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 implementing 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 this proposed rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. Review Under 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 Information and Regulatory Affairs

[[Page 28418]]

(OIRA), Office of Management and Budget, a Statement of Energy Effects 
for any significant energy action. A ``significant energy action'' is 
defined as any action by an agency that promulgates 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. 
This proposed rule is not a significant energy action. Accordingly, DOE 
has not prepared a Statement of Energy Effects.

IV. Approval by the Office of the Secretary

    The Office of the Secretary of Energy has approved the publication 
of this proposed rule.

List of Subjects in 10 CFR Part 712

    Administrative practice and procedure, Alcohol abuse, Classified 
information, Drug abuse, Government contracts, Government employees, 
Health, Occupational safety and health, Radiation protection, and 
Security measures.

    Issued in Washington, DC, on June 12, 2017.
Rick Perry,
Secretary of Energy.
    For the reasons stated in the preamble, DOE proposes to amend part 
712 of title 10 of the Code of Federal Regulations to read as follows:

PART 712--HUMAN RELIABILITY PROGRAM

0
1. The authority citation for part 712 continues to read as follows:

    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.

0
2. Revise subpart A to read as follows:
Subpart A--Establishment of and Procedures for the Human Reliability 
Program

General Provisions

Sec.
712.1 Purpose.
712.2 Applicability.
712.3 Definitions.

Procedures

Sec.
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 Security review.
712.17 Instructional requirements.
712.18 Transferring HRP certification.
712.19 Actions related to Removal, Revocation and/or Reinstatement.
712.20 Request for reconsideration or certification review hearing.
712.21 Appointment of DOE Counsel.
712.22 Office of Hearings and Appeals.
712.23 Administrative Judge's decision.
712.24 Final decision by DOE Under Secretary.
712.25 Cooperation by the individual.

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 NNSA or a DOE or NNSA contractor or subcontractor in a position 
defined or designated under Sec.  712.10 of this subpart as an HRP 
position.


Sec.  712.3   Definitions.

    The following definitions are used in this part:

    Access means:
    (1) A situation that may provide an individual proximity to or 
control over 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.
    Associate Under Secretary for Environment, Health, Safety and 
Security means the DOE individual with responsibility for policy and 
quality assurance for DOE occupational medical programs.
    Case chronology means a written recitation of all actions that 
support a recommendation to revoke an individual's HRP certification 
under Sec.  712.19.
    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 contractors and 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.
    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 Associate Under Secretary for Environment, 
Health, Safety and Security or his or her designee 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 Associate 
Under Secretary for Environment, Health, Safety and Security or his 
or her designee 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.
    Evaluative report means the document that sets forth the bases 
supporting the revocation of an individual's certification.

[[Page 28419]]

    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 senior Federal line manager at a departmental 
site or Federal office with HRP-designated positions.
    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 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 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 taken 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.
    Restoration means the actions necessary to restore an 
individual's HRP duties after a final decision has been made by the 
cognizant Under Secretary or his/her designee to overturn the 
revocation decision. The restoration of HRP duties is contingent on 
the individual completing any and all components of the annual 
recertification process under Sec.  712.11 and any other specific 
requirements that must be completed in order to return to full 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 reasonable probability of physical harm, property loss, 
and/or environmental impact.
    Security concern means the presence of information regarding an 
individual that raises a question as to whether HRP certification 
and recertification would endanger the common defense and security 
and would be clearly consistent with the national interest.
    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 or program.
    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

[[Page 28420]]

(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 Associate Under 
Secretary for Environment, Health, Safety and 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 requirements apply to each individual applying 
for or in an HRP position:
    (1) A DOE ``Q'' access authorization;
    (2) Signed releases, acknowledgments, and waivers to participate in 
the HRP on forms provided by DOE;
    (3) Completion of initial and annual HRP instruction as provided in 
Sec.  712.17;
    (4) Successful completion of an initial and annual supervisory 
review, medical assessment, management evaluation, and a DOE personnel 
security review;
    (5) No use of any hallucinogen in the preceding 5 years and no 
experience of flashback resulting from the use of any hallucinogen more 
than 5 years before applying for certification or recertification;
    (6) An initial drug test and random drug tests for the use of 
illegal drugs at least once each 12 months;
    (7) An initial alcohol test and random alcohol tests at least once 
each 12 months; and
    (8) Successful completion of a counterintelligence evaluation, 
which may include 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.
    (c) 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. All 
remaining HRP requirements listed in paragraph (a) of this section must 
be completed in an expedited manner.
    (d) 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.
    (e) 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.
    (f) Any doubt as to an HRP candidate's or HRP certified 
individual's eligibility for certification shall be resolved against 
the candidate or individual in favor of national security and/or 
safety.


Sec.  712.12  HRP implementation.

    (a) The implementation of the HRP is the responsibility of the 
appropriate Manager or his or her designee.
    (b) The HRP Management Official must prepare an HRP implementation 
plan and submit it to the applicable Manager for review and approval. 
The implementation plan must:
    (1) Be reviewed and updated every 2 years;
    (2) 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
    (3) Include the HRP instruction and education component described 
in Sec.  712.17 of this part.
    (c) The Deputy Administrator for Defense Programs, NNSA must:
    (1) Provide advice and assistance to the Associate Under Secretary 
for Environment, Health, Safety and 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 Associate Under Secretary for Environment, Health, Safety 
and Security, or designee, 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.
    (e) The Manager must:
    (1) Review and approve the HRP implementation plan for sites/
facilities under their cognizance and forward the plan to the Director, 
Office of Corporate Security Strategy, Analysis and Special Operations, 
or designee; and
    (2) Ensure that the HRP is implemented at the sites/facilities 
under their cognizance.
    (f) 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(f);
    (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).
    (g) 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) 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

[[Page 28421]]

    (4) 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:
    (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, based on his or her personal 
knowledge that is 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;
    (12) Significant behavioral changes, moodiness, depression, or 
other evidence of loss of emotional control; and
    (13) Any unusual conduct or being subject to any circumstances 
which tend to show that the individual is not reliable.
    (d) A supervisor must immediately remove an individual from HRP 
duties:
    (1) When the supervisor has a reasonable belief that the individual 
is not reliable, based on either a safety or security concern;
    (2) When the individual does not obtain HRP recertification; or
    (3) When requested to do so by the HRP certifying official.
    (e) The supervisor must contact the appropriate personnel office 
for guidance as to any actions that should occur as a result of the 
immediate removal.
    (f) Immediate Removal. If the supervisor immediately removes an 
HRP-certified individual for any reason specified in this part, he or 
she 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) Notify, within 24 hours, the HRP management official of the 
immediate removal. The HRP management official shall take actions 
consistent with Sec.  712.19.


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.
    (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 
Associate Under Secretary for Environment, Health, Safety and Security 
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 
Associate Under Secretary for Environment, Health,

[[Page 28422]]

Safety and Security or his or her designee. This requirement can be 
implemented over a 3-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. 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 3 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 recommended 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 or 
security concern is identified with respect to an HRP-certified 
individual, the HRP management official must take actions consistent 
with Sec.  712.19(a).
    (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 
2 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. If an HRP-
certified individual refuses to submit to a drug test or, based on a 
drug test, is determined to use illegal drugs, the supervisor must 
immediately remove the individual from HRP duties and take actions 
consistent with Sec.  712.13(f).
    (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. The 
supervisor who has been informed that an HRP-certified individual's 
confirmatory breath alcohol test result is at or above an alcohol 
concentration of 0.02 percent shall send that individual home and not 
allow that individual to perform HRP duties for 24 hours, and take all 
appropriate administrative action consistent with Sec.  712.13(f).
    (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 2 hours of 
notification (or established shorter time for the specific site);
    (ii) Failure to provide an adequate volume of breath in 2 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 contractor and DOE employees, 
respectively.

[[Page 28423]]

    (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 immediately remove an HRP-certified 
individual from HRP duties if the individual refuses to undergo the 
testing required by this subsection.
    (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 may include a 
polygraph examination in accordance with 10 CFR part 709, Polygraph 
Examination Regulations and any subsequent revisions to that 
regulation.


Sec.  712.16   Security review.

    (a) A personnel security specialist must review the personnel 
security file of every HRP candidate and every HRP-certified individual 
up for certification or recertification.
    (b) If the personnel security file review is favorable, this 
information must be forwarded to the HRP certifying official and so 
noted on the certification form. 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 personnel security specialist must evaluate the 
concern in accordance with 10 CFR part 710. If a final determination is 
made by DOE personnel security to suspend access authorization, the HRP 
management official must be notified, the individual shall be 
immediately removed from the HRP position, the HRP certifying official 
notified, and the information noted on the certification form.
    (c) A favorable adjudication of security concerns under 10 CFR part 
710 does not require granting or continuing HRP certification. Security 
concerns can be reviewed and evaluated for purposes of granting or 
continuing HRP certification even if the concerns have been favorably 
resolved under part 710.
    (d) 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, except as consistent with the Privacy Act of 1974.
    (e) If the DOE personnel security review is not completed within 
the 12-month time period for recertification 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, pending completion of the personnel security review.


 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 safety and/or security concerns, physical, mental, or 
emotional conditions that could adversely affect the performance of HRP 
duties or that require treatment by a doctor, physician's assistant or 
other health care professional; 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   Actions related to Removal, Revocation and/or 
Reinstatement.

    (a) Temporary removal. The HRP management official shall direct the 
temporary removal of an HRP-certified individual when the management 
official:
    (1) Identifies, during the course of the management evaluation, a 
safety or security concern that warrants such removal;
    (2) Receives a supervisor's written notice of the immediate removal 
of an HRP-certified individual; or
    (3) Receives a recommendation from the Designated Physician, the 
Designated Psychologist, or the SOMD to medically remove an HRP-
certified individual consistent with Sec.  712.14(h).

[[Page 28424]]

    (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. Within five (5) business days of placing 
the individual on a temporary removal, the HRP management official must 
notify the individual in writing that s/he is temporarily removed.
    (c) If temporary removal is based on derogatory information that is 
a security concern, the HRP management official must notify the HRP 
certifying official and the applicable DOE personnel security office.
    (d) If temporary removal is based on a medical concern, the HRP 
management official must obtain a recommendation from the Designated 
Physician, Designated Psychologist, or the SOMD consistent with Sec.  
712.14(h).
    (e) If the HRP management official determines, after conducting an 
evaluation of the circumstances or information that led to the 
temporary removal, that an individual who has been temporarily removed 
continues to meet the requirements for certification, the HRP 
management official must:
    (1) Direct that the supervisor reinstate the individual and provide 
written explanation of the reasons and factual bases for the action;
    (2) Notify the individual; and
    (3) Notify the HRP certifying official.
    (f) 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 prepare a case 
chronology that explains why the individual does not meet the 
requirement for certification and forward it to the HRP certifying 
official. The HRP management official's determination that an 
individual does not meet certification requirement must be based on one 
or more of types of behaviors and conditions identified in Sec.  
712.13(c). The HRP certifying official must review the case chronology 
from the HRP management official and take one of the following actions:
    (1) Direct that the supervisor reinstate the individual, with any 
applicable medical restrictions, provide written explanation of the 
reasons and factual bases for the action, and notify the individual;
    (2) 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
    (3) Recommend to the Manager the revocation of the individual's 
certification, direct the HRP management official to prepare an 
evaluative report, and provide the case chronology and the evaluative 
report, when completed, to the Manager. If the HRP certifying official 
is the Manager, he or she should direct the HRP management official to 
prepare the evaluative report and then take actions consistent with 
paragraph (h)(2) of this section. The appropriate DOE or NNSA counsel 
must review the evaluative report for legal sufficiency.
    (g) The Manager, on receiving the HRP management official's case 
chronology and evaluative report, and the HRP certifying official's 
recommendation (if any), must take one of the following actions:
    (1) Direct that the supervisor reinstate the individual, provide 
written explanation of the reasons and factual bases for the action, 
and notify the individual;
    (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.
    (h) Notification of Manager's initial decision. If the action is 
revocation, the Manager must send a letter by certified mail (return 
receipt requested) or hand deliver it with record of delivery to the 
individual whose certification is revoked notifying him or her of the 
reasons for the revocation and the options for review. The evaluative 
report must be appended to the letter. 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.
    (i) If an individual is directed by the Manager or HRP certifying 
official to take specified actions to resolve HRP concerns pursuant to 
Sec.  712.19(f)(2) or (g)(3) he or she must be reevaluated after those 
actions have been completed, and the Manager must direct either:
    (1) Reinstatement of the individual; or
    (2) Revocation of the individual's HRP certification. In the case 
of revocation, the HRP management official will be directed to make any 
appropriate revisions to the evaluative report.


Sec.  712.20  Request for reconsideration or certification review 
hearing.

    (a) An individual who receives notification of the Manager's 
decision to revoke his or her HRP certification may choose one of the 
following options:
    (1) 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
    (2) 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 agency decision to the individual.
    (c) If an individual requests a certification review hearing, the 
Manager must forward the request to the Office of Hearings and Appeals.
    (d) If an individual takes no action within 20 working days after 
receipt of the Manager's decision, the Manager's decision will become a 
final agency decision.


Sec.  712.21   Appointment of DOE Counsel.

    (a) Upon receipt from the individual of a written request for a 
certification review hearing, the Manager shall request appointment of 
DOE counsel as soon as possible.
    (b) DOE Counsel is authorized to consult directly with the 
individual if he is not represented by counsel, or with the 
individual's counsel or representative if so represented, to clarify 
issues and reach stipulations with respect to testimony and contents of 
documents and other physical evidence. Such stipulations shall be 
binding upon the individual and the DOE Counsel for the purposes of 
this subpart.


Sec.  712.22  Office of Hearings and Appeals.

    (a) Upon receipt of the hearing request from the Manager, the 
Director, DOE Office of Hearings and Appeals, shall appoint, as soon as 
practicable, an Administrative Judge.
    (b) The Administrative Judge must have a DOE ``Q'' access 
authorization.
    (c) An individual who requests a certification review hearing has 
the right

[[Page 28425]]

to appear personally before the Administrative Judge; 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) An individual must come forward with evidence to demonstrate 
that the decision to revoke his or her HRP certification was clearly 
erroneous or that extraordinary circumstances warrant recertification 
into HRP. Evidence that the individual has rehabilitated or reformed 
since the time of the Manager's decision will not be considered by the 
Administrative Judge.
    (e) DOE Counsel shall assist the Administrative Judge in 
establishing a complete administrative hearing record in the proceeding 
and bringing out a full and true disclosure of all facts, both 
favorable and unfavorable, having bearing on the issues before the 
Administrative Judge.
    (f) In conducting the proceedings, the Administrative Judge will:
    (1) Determine the date, time, and location of the hearing, 
including whether the hearing will be conducted by video 
teleconference;
    (2) At least 7 calendar days prior to date scheduled for the 
hearing, convene a prehearing conference for the purpose of discussing 
stipulations and exhibits, identifying witnesses, and disposing of 
other appropriate matters. The conference will usually be conducted by 
telephone;
    (3) Receive all relevant and material information relating to the 
individual's fitness for HRP duties through witnesses or documentation;
    (4) 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 to the extent permitted by national 
security;
    (5) Require the testimony of the individual and all witnesses be 
given under oath or affirmation;
    (6) Ensure that a transcript of the certification review 
proceedings is made; and
    (7) Not engage in ex parte communications with either party.
    (g) The Administrative Judge shall have all powers necessary to 
regulate the conduct of proceedings, including, but not limited to, 
establishing a list of persons to receive service of papers, issuing 
subpoenas for witnesses to attend the hearing or for the production of 
specific documents or other physical evidence, administering oaths and 
affirmations, ruling upon motions, receiving evidence, regulating the 
course of the hearing, disposing of procedural requests or similar 
matters, and taking other actions consistent with the regulations in 
this part. Requests for subpoenas shall be granted except where the 
Administrative Judge finds that the grant of subpoenas would clearly 
result in evidence or testimony that is repetitious, incompetent, 
irrelevant, or immaterial to the issues in the case.
    (h) The Administrative Judge may return a case to the HRP Manager 
for a final agency decision consistent with Sec.  712.20(b) if--
    (1) The individual or his or her attorney fails to heed the 
instructions of the Administrative Judge;
    (2) The individual fails to appear at the appointed time, date and 
location for the certification review hearing;
    (3) The individual otherwise fails to cooperate at the hearing 
phase of the process; or
    (4) The individual withdraws his/her request for a certification 
review hearing.
    (i) Based on a review of the administrative hearing record, the 
Administrative Judge shall prepare a decision regarding the 
individual's eligibility for recertification in the HRP, which shall 
consist of written findings and a supporting statement of reasons. In 
making a decision, the Administrative Judge shall ensure that any doubt 
as to an individual's certification shall be resolved against the 
individual in favor of national security and/or safety.


Sec.  712.23   Administrative Judge's decision.

    (a) Within 30 calendar days of the receipt of the hearing 
transcript by the Administrative Judge or the closing of the record, 
whichever is later, the Administrative Judge should forward his or her 
decision to the Associate Under Secretary for Environment, Health, 
Safety, and Security. The Administrative Judge's decision must be 
accompanied by a copy of the record.
    (b) Within 10 calendar days of receipt of the decision and the 
administrative record, the Associate Under Secretary for Environment, 
Health, Safety, and Security should:
    (1) Notify the individual and Manager in writing of the 
Administrative Judge's decision;
    (2) Advise the individual in writing of the appeal procedures 
available to the individual in paragraph (c) of this section if the 
decision is unfavorable to the individual;
    (3) Advise the Manager in writing of the appeal procedures 
available to the Manager in paragraph (c) of this section if the 
decision is favorable to the individual; and
    (4) Provide the individual and/or counsel or representative, and 
the Manager a copy of the Administrative Judge's decision and the 
administrative record.
    (c) The individual or the Manager may file with the Associate Under 
Secretary for Environment, Health, Safety, and Security a written 
request for further review of the decision by the cognizant Under 
Secretary along with a statement required by paragraph (e) of this 
section within 20 working days of the individual's receipt of the 
Administrative Judge's decision;
    (d) The copy of any request for further review of the individual's 
case by the cognizant Under Secretary filed by the Manager shall be 
provided to the individual by the Manager.
    (e) The party filing a request for review of the individual's case 
by the cognizant Under Secretary shall include with the request a 
statement identifying the issues on which it wishes the cognizant Under 
Secretary to focus.
    (f) The Administrative Judge's decision shall be considered final 
if a written request for review is not filed in accordance with 
paragraph (c) of this section.


Sec.  712.24  Final decision by DOE Under Secretary.

    (a) Within 10 calendar days of receipt of the written request for 
review, the Associate Under Secretary for Environment, Health, Safety 
and Security should forward to the cognizant Under Secretary the 
written request for review, the Administrative Judge's decision, and 
the administrative record.
    (b) Upon receipt of the written request for review, the 
Administrative Judge's decision, and the administrative record, the 
cognizant Under Secretary, in consultation with the DOE General 
Counsel, will issue a final written decision. The cognizant Under 
Secretary may delegate this authority. In issuing a final decision, the 
cognizant Under Secretary shall expressly state that he or she is 
either revoking or restoring an individual's HRP certification. A copy 
of this decision must be sent by certified mail (return receipt 
requested) to the Manager and to the individual.
    (c) The cognizant Under Secretary shall consider only that evidence 
and information in the administrative record at the time of the 
Administrative Judge's decision.

[[Page 28426]]

Sec.  712.25  Cooperation by the individual.

    (a) It is the responsibility of the HRP candidate or HRP certified 
individual to 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. This obligation to 
cooperate applies at any stage, including but not limited to initial 
certification, recertification, temporary removal, revocation, and/or 
hearing. The individual or candidate may elect not to cooperate; 
however, such refusal may prevent DOE from reaching an affirmative 
finding required for granting or continuing HRP certification. In this 
event, any HRP certification then in effect may be revoked, or, for HRP 
candidates, may not be granted.
    (b) An HRP certified individual who receives notification of the 
Manager's decision to revoke his or her certification due to failure to 
cooperate may choose one of the following options:
    (1) Take no action; or
    (2) Within 20 working days after the individual received notice of 
the Manager's revocation decision, submit a written request by 
certified mail to the Manager for reconsideration. The request must 
include the individual's response to the information that gave rise to 
the revocation decision.
    (c) Upon receipt of the request for reconsideration, the Manager 
shall notify the individual, in writing, within 20 calendar days of 
receipt of the written appeal, as to whether the action to revoke 
certification was appropriate. If the Manager determines that the 
action was inappropriate, he or she shall direct that the individual be 
reinstated.


Sec.  712.34  [Amended]

0
3. Section 712.34 is amended by removing the language, ``Director, 
Office of Health and Safety'' in paragraphs (a), (b), (c) and (d) and 
adding in its place ``Associate Under Secretary for Environment, 
Health, Safety and Security''.


Sec.  712.35   [Amended]

0
4. Section 712.35 is amended by removing the language, ``Director, 
Office of Health and Safety'' and adding in its place ``Associate Under 
Secretary for Environment, Health, Safety and Security''.


Sec.  712.36  [Amended]

0
5. Section 712.36 is amended by:
0
a. Removing the language, ``Director, Office of Health and Safety'' in 
paragraphs (d)(1) and (d)(3) and adding in its place ``Associate Under 
Secretary for Environment, Health, Safety and Security''.
0
b. Removing paragraph (i).

[FR Doc. 2017-12810 Filed 6-21-17; 8:45 am]
BILLING CODE 6450-01-P