Subject: Human Reliability Program
  
[Federal Register: July 17, 2002 (Volume 67, Number 137)]
[Proposed Rules]
[Page 46912-46926]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy02-34]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

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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DEPARTMENT OF ENERGY
10 CFR Parts 710, 711, and 712
[Docket No. SO-RM-00-HRP]
RIN 1992-AA29
 
Human Reliability Program

AGENCY: Office of Security, Department of Energy.
ACTION: Notice of proposed rulemaking and public hearings.

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SUMMARY: The Department of Energy (DOE) proposes to establish a Human 
Reliability Program that would consolidate its Personnel Security 
Assurance Program (PSAP) and Personnel Assurance Program (PAP). The 
PSAP is an access authorization program for individuals who apply for 
or occupy certain positions that are critical to the national security. 
The PSAP requires an initial and annual supervisory review, a medical 
assessment, management evaluation, and DOE personnel security review of 
all applicants or incumbents. The PAP is a nuclear explosive safety 
program using many of the same evaluations of the PSAP to ensure that 
employees assigned to nuclear explosive duties do not have emotional, 
mental, or physical conditions that could result in an accidental or 
unauthorized detonation of nuclear explosives. DOE has established many 
common elements for the administration of the PSAP and PAP. 
Accordingly, this proposed regulation would consolidate both programs 
into a single program, incorporating all the important facets of each 
into an understandable, comprehensive, and concise regulation.

DATES: The comment period for this proposed rule will end on October 
15, 2002. Public hearings will be held on September 5, 2002, in 
Albuquerque, NM; September 10, 2002, in Livermore, CA; September 12, 
2002, in Amarillo, TX; and September 17, 2002, in Oak Ridge, TN. All 
hearings will be held from 9 a.m. to 12 noon and 1 p.m. to 4 p.m.
    Requests to speak at any of the hearings should be mailed to Linda 
Repass, Personnel Security Assurance Program Manager, Security Policy 
Staff, Office of Security, Department of Energy, 1000 Independence 
Avenue, SW., Washington, DC 20585; e-mailed to the following address: 
<A HREF="mailto:linda.repass@hq.doe.gov">linda.repass@hq.doe.gov</A>, or telephoned to (301) 903-4800 by August 22, 
2002, for the Albuquerque, NM, hearing; by August 27, 2002, for the 
Livermore, CA, hearing; by August 29, 2002, for the Amarillo, TX, 
hearing; and by September 3, 2002, for the Oak Ridge, TN, hearing. Each 
presentation is limited to no more than 10 minutes to ensure that all 
persons have an opportunity to speak.

ADDRESSES: Written comments (7 copies) should be addressed to Linda 
Repass, Personnel Security Assurance Program Manager, Security Policy 
Staff, Office of Security, Department of Energy, 1000 Independence 
Avenue, SW., Washington, DC 20585. Alternatively, comments may be e-
mailed to the following address: <A HREF="mailto:linda.repass@hq.doe.gov">linda.repass@hq.doe.gov</A>. Where 
possible, commenters should identify the specific section(s) of the 
proposed rule to which they are responding.
    Copies of the public hearing transcripts, written comments, 
references to technical material pertaining to this notice, and any 
other docket material may be reviewed and copied at the DOE Freedom of 
Information Reading Room, Room 1E-190, 1000 Independence Avenue, SW., 
Washington, DC 20585, between the hours of 8:30 a.m. and 4:00 p.m. 
Monday through Friday, except Federal holidays. The docket material for 
this rulemaking will be filed under ``SO-RM-00-HRP.''
    The public hearings for this rulemaking will be held at the 
following addresses: Albuquerque, NM; Albuquerque Marriott, 2101 
Louisiana Boulevard, NE; Livermore, CA: Press Room, Trailer 6575 
(Greenville Road Entrance) at the Lawrence Livermore National 
Laboratory, 7000 East Avenue; Amarillo, TX: Ambassador Hotel, 3100 I-40 
West; and Oak Ridge, TN: Oak Ridge Mall, Community Room, Rutgers Place 
Entrance.
    For more information concerning public participation in this 
rulemaking proceeding, see Section IV of this notice of proposed 
rulemaking (Opportunity for Public Comment).

FOR FURTHER INFORMATION CONTACT: Ms. Linda Repass, Personnel Security 
Assurance Program Manager, Security Policy Staff, Office of Security, 
Department of Energy, 1000 Independence Avenue, SW, Washington, DC, 
20585, (301) 903-4800, or Mr. Charles Westfall, Personnel Assurance 
Program Manager, Office of Nuclear Weapons Surety, Department of 
Energy, 1000 Independence Avenue, SW, Washington, DC 20585, (301) 903-
4051.
    For information concerning Subpart B, Medical Standards: Mr. 
Kenneth O. Matthews, Office of Health Studies, Department of Energy, 
1000 Independence Avenue, SW, Washington, DC 20585, (301) 903-6398.

SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Discussion
III. Regulatory Review
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. National Environmental Policy Act
    D. Paperwork Reduction Act
    E. Executive Order 13132
    F. Unfunded Mandates Reform Act of 1995
    G. Executive Order 12988
    H. Executive Order 13084
    I. Treasury and General Government Appropriations Act, 1999
IV. Opportunity for Public Comment
    A. Written Comments
    B. Public Hearings

I. Background

    Pursuant to the Atomic Energy Act of 1954 (the AEA), the DOE owns, 
leases, operates or supervises activities at facilities in various 
locations in the United States. Many of these facilities are involved 
in researching, testing, producing, disassembling, or transporting 
nuclear explosives, which, when combined with Department of Defense 
delivery systems, become nuclear weapons systems. These facilities are 
often involved in other activities that affect the national security. 
DOE has long been aware that if certain DOE facilities are compromised, 
national security would be severely damaged. To guard against such 
compromise, DOE has taken the initiative to implement security and 
safety reliability programs designed to ensure that individuals 
occupying positions affording unescorted access to certain materials, 
facilities, and

[[Page 46913]]

programs meet the highest standards of reliability as well as physical 
and mental suitability.
    In 1989, as part of its ongoing efforts to protect national 
security, DOE established regulations at 10 CFR part 710, subpart B, 
``Criteria and Procedures for Establishment of the Personnel Security 
Assurance Program and Determinations of an Individual's Eligibility for 
Access to a Personnel Security Assurance Program Position.'' These 
Personnel Security Assurance Program (PSAP) regulations apply to 
individuals who occupy positions throughout the DOE complex that 
involve access to, or responsibility for, special nuclear material or 
otherwise have the potential to cause unacceptable damage to national 
security. In 1998, DOE established regulations at 10 CFR part 711, 
``Personnel Assurance Program (PAP),'' which codified longstanding 
certification procedures pertaining to individuals who occupy positions 
that involve hands-on work with, or access to, nuclear explosives.
    As the PSAP and PAP evolved, significant similarities developed 
between the two programs in their administration, requirements, and 
concerns. DOE has concluded that the monetary cost and time 
requirements of administering two very similar programs with similar 
goals, the protection of special nuclear material and nuclear 
explosives, cannot be justified as consistent with good business 
practices when contrasted with the benefits of consolidation. 
Accordingly, DOE has determined that a merger of the two programs is 
appropriate, which would result in more stringent medical assessments 
and training requirements for individuals in PSAP positions. DOE 
determined that a new rule, based on the many common elements of the 
PSAP and PAP, would establish a single unified management structure of 
both programs while incorporating all the important elements into one 
comprehensive regulation. By adopting a uniform set of requirements 
applicable to both categories of employees, DOE expects to have a 
stronger, more efficient, and effective human reliability program for 
personnel occupying these positions.
    The proposed combined program, named the Human Reliability Program 
(HRP), is designed to meet the objective of protecting the national 
security through a system of continuous evaluation of individuals 
working in positions affording unescorted access to certain materials, 
facilities, and programs. The purpose of this continuous evaluation is 
to identify in a timely manner individuals whose judgment may be 
impaired by physical and/or emotional 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, and/or security concern.
    The HRP will require that all individuals working in positions 
affording unescorted access to certain materials, facilities, and 
programs be certified to meet the highest standards of reliability and 
physical and mental suitability before such access may be granted. The 
certification of such individuals is subject to immediate review in the 
event an individual's behavior indicates a reliability or security risk 
to nuclear explosive operations or national security, during which time 
the individual will be immediately removed from assigned duties. 
Immediate removal is an interim, precautionary action and does not 
constitute a final determination regarding an individual's reliability 
or access authorization status. Individuals who are removed from HRP 
duties for non-security issues are entitled to resolve these issues 
through a formal procedure outlined in proposed sections 712.19 through 
712.23. For removal based on a security concern, 10 CFR part 710 
provides procedures for resolving issues concerning eligibility for an 
access authorization. These regulations provide the individual a 
written statement of the issues, an opportunity to respond, including 
an opportunity for a hearing before a DOE Hearing Officer, and an 
opportunity to have the opinion of the hearing officer reviewed at a 
higher level before a final determination is made.
    Most of the provisions of the proposed HRP rule are taken directly 
from the PSAP and PAP regulations (see section-by-section description 
of the proposed HRP set forth below). However, the proposed HRP rule 
has several requirements that are new to all individuals and some that 
are new to certain HRP positions. These include:
    1. Random alcohol testing for all individuals in HRP positions. DOE 
believes that the misuse or abuse of alcohol represents a risk that is 
incompatible with the nature of work performed by individuals in HRP 
positions. DOE has a compelling interest in ensuring that individuals 
who hold HRP positions are functioning at the highest level of 
reliability because they have unescorted access to certain materials, 
facilities, and programs. This interest outweighs the diminished 
privacy expectations in respect to intrusions occasioned by a carefully 
tailored alcohol testing program. The government must ensure the 
unimpaired judgment of persons who perform hands-on work with, or have 
access to, nuclear explosives or have access to, or responsibility for, 
special nuclear material, or who otherwise have the potential to cause 
unacceptable damage to national security. It also must ensure that the 
persons charged with the security of these research and production 
facilities do not pose a risk to the life of the citizenry as the 
result of impaired perception or judgment that might result from the 
use of deadly force.
    This proposed regulation is consistent with regulations of other 
Federal agencies charged with overseeing critical activities. On 
February 15, 1994, the Department of Transportation (DOT) operating 
agencies promulgated alcohol testing regulations for the aviation, 
motor carrier, rail, transit, and pipeline transportation industries. 
In the common preamble for those regulations, the operating agencies 
discussed the research and recommendations by expert bodies, including 
the National Highway Transportation Safety Administration, the National 
Transportation Safety Board, the National Academy of Sciences, and the 
Transportation Research Board regarding the effects of blood alcohol 
(59 FR 7302, 7318-19). DOT concluded, based on this body of research, 
that while impairment of performance of safety-sensitive functions was 
clearly increased above 0.04 percent alcohol concentration, there was 
evidence of some impairment at levels as low as 0.02, the lowest level 
that can be reliably measured. Alcohol affects individuals differently; 
indeed, any blood alcohol impairs some individuals. Based on this 
evidence, DOT adopted a standard that requires removal of an employee 
from a safety-sensitive position at any alcohol concentration of 0.02 
percent or greater. Some DOE employees at certain sites already are 
subject to random alcohol testing pursuant to DOT regulations.
    The Nuclear Regulatory Commission (NRC) considers the misuse of 
alcohol to be a serious and pervasive workplace problem (Barnes, et 
al., Fitness for Duty in the Nuclear Power Industry: A Review of 
Technical Issues, 1988, NUREG/CR-5227, U.S. Nuclear Regulatory 
Commission, Washington, DC; Moore et al., Fitness for Duty in the 
Nuclear Power Industry: A Review of Technical Issues, 1989, NUREG/CR-
5227, Supplement 1, U.S. Nuclear Regulatory Commission, Washington, 
DC). The NRC requires alcohol testing in its

[[Page 46914]]

fitness-for-duty program (10 CFR Part 26).
    The proposed regulation is supported by scientific research that 
shows that cognitive and physical task performance decreases as a 
result of alcohol abuse (Hartwell, Steele, and Rodman, ``Workplace 
alcohol testing programs: prevalence and trends,'' Monthly Labor 
Review, V121, 1998; Mangione, et al., ``Employee drinking practices and 
work performance,'' Journal of Studies on Alcohol, V60, 1999; Ames, 
Grube, and Moore, ``The relationship of drinking and hangovers to 
workplace problems: An empirical study,'' Journal of Studies on Alcohol 
V58, 1997; Yesavage and Leirer, ``Hangover effects on aircraft pilots 
14 hours after alcohol ingestion: A preliminary report,'' American 
Journal of Psychiatry, V143, 1986).
    The job tasks performed by individuals in the HRP are clearly as, 
or more, safety-sensitive than those performed by workers in the 
transportation industry and the nuclear power industry and have the 
added security-sensitive requirements. The potential for (1) an 
accidental or unauthorized detonation of a nuclear explosive; (2) use 
of deadly force in guarding or transporting special nuclear materials 
or nuclear weapons; (3) a criticality incident involving special 
nuclear material; or (4) the misuse of classified information clearly 
demonstrates that alcohol abuse poses the same safety and security 
risks as does drug use. The proposed random alcohol testing is based on 
the DOT regulations that already are required for transportation 
workers at many DOE sites. DOE believes that random alcohol testing 
will enhance the safety and reliability aspects of the HRP and deter 
the use of alcohol on the job, as well as during a period prior to 
reporting for work. Individuals in HRP positions also will be subject 
to testing if they are involved in an incident, unsafe practice or 
occurrence, or if there is reasonable suspicion that they may be 
impaired.
    2. Eight-hour abstinence rule for alcohol. In the past, individuals 
reporting for nuclear explosive duties have been prohibited from 
drinking alcohol during the eight hours before their work assignments. 
This eight-hour abstinence requirement is being retained in the HRP for 
those employees and is now made applicable to employees in specific 
positions designated by the Operations Office Manager, the National 
Nuclear Security Administration (NNSA) Administrator or his or her 
designee, or the appropriate Lead Program Secretarial Officer, or his 
or her designee. This abstinence requirement will be in addition to the 
random alcohol testing requirement.
    3. Annual Submission of Questionnaire for National Security 
Positions (QNSP), Part 2. Previously this has been required only of 
participants in the PSAP, however; DOE proposes to make this a 
requirement for all individuals in the HRP. This requirement 
underscores DOE's continuous commitment to evaluate personnel security 
concerns that is fundamental to the success of the program. This annual 
requirement is designed to assist in assuring that HRP individuals and 
HRP-certified individuals are reliable and trustworthy.
    4. Psychological evaluations. This requirement has been in effect 
for PAP individuals and is a new requirement for all other HRP 
participants. The psychological evaluation, as part of the overall 
medical assessment, addresses an individual's mental or behavioral 
state as it relates to security and safety concerns. This evaluation 
includes the completion of a psychological assessment (test) and a 
semi-structured interview with the Designated Psychologist, or a 
psychologist under his or her supervision, who has the latitude to vary 
the focus and content of questions based on the results of the 
psychological test and/or the interviewee's response to certain 
questions. Through this evaluation process, an assessment is made of 
whether the individual shows at-risk behavior or conditions that raise 
a security concern or may impact the ability to perform his or her job 
duties in a safe and reliable manner. Individuals will be subject to an 
initial psychological evaluation and annual evaluations thereafter. 
Every third year individuals in an HRP position will be required to 
have another psychological assessment (test). This process will assist 
medical personnel in their efforts to monitor participants and ensure 
that individuals in HRP positions are reliable and trustworthy.
    5. Counterintelligence polygraph examinations. Individuals 
occupying either a PAP or PSAP position must submit to a 
counterintelligence-scope polygraph examination in accordance with the 
Polygraph Examination Regulation, 10 CFR Part 709. Both the PAP and 
PSAP regulations were amended to reflect this requirement when the 
Polygraph Examination Regulation was published on December 17, 1999 (64 
FR 70962). This requirement is continued in the HRP rule. Refusal to 
submit to such a polygraph examination will result in rejection of the 
initial application for, or removal from, an HRP position, consistent 
with procedures in 10 CFR part 709.

II. Section-by-Section Discussion

    The proposed HRP regulations are organized like the existing PAP 
regulations in 10 CFR part 711. Subpart A contains the provisions that 
establish the HRP and the HRP certification requirements; subpart B 
contains the provisions of the medical standards required for HRP 
certification. In drafting subpart A, the DOE carefully evaluated the 
existing provisions in both 10 CFR part 710, subpart B (the PSAP 
regulations) and part 711, subpart A (the PAP general regulations). 
Following are descriptions of selected proposed rule provisions:
    Section 712.3, Definitions. The definition of ``access'' combines 
the PAP definition of ``access'' and the PSAP definition of ``direct 
access'' without substantive change.
    The definition of ``alcohol use disorder'' is taken from PAP 
regulations. DOE proposes new definitions of ``alcohol'' and ``alcohol 
abuse.'' A definition of ``evidential-grade breath alcohol device'' is 
proposed, and is not currently found in either the PSAP or PAP 
regulations. A definition of ``random alcohol testing'' also is 
proposed.
    The definitions of ``contractor'' in both the PSAP and PAP 
regulations would be replaced by the proposed definition of 
``contractor.'' The proposed definition is more specific and is derived 
from the definition of ``contractor'' in 10 CFR part 1045, DOE's 
regulations on nuclear classification and declassification.
    The term ``transfer'' is defined as the permanent move of an HRP-
certified individual to another site having an HRP position.
    Section 712.10, HRP positions. Proposed Sec. 712.10(a) lists the 
positions that will be included in the HRP and will require initial and 
annual certification. These include positions that afford access to 
Category I special nuclear material (SNM) or have responsibility for 
the transportation or protection of such material. Other positions 
included are those with the potential for causing unacceptable damage 
to national security that have been nominated for HRP designation by 
management officials and approved by the Administrator of the National 
Nuclear Security Administration (NNSA), or his or her designee, or by 
the appropriate Lead Program Secretarial Officer, or his or her 
designee. These are currently classified as PSAP positions, whereas the 
positions that afford direct access to the control areas of a nuclear

[[Page 46915]]

material production reactor have been eliminated from this rule (see 10 
CFR 710.55). The HRP also will include all PAP positions (i.e., 
positions that involve nuclear explosive duties as defined in 10 CFR 
711.3).
    The proposed HRP also will include positions that afford access to 
information concerning vulnerabilities in protective systems when 
transporting nuclear explosives, nuclear devices, selected components 
or Category I quantities of SNM. The proposed category of positions 
includes many of the same ones currently in PSAP and PAP and may 
include others not previously in either program.
    Section 712.11, General requirements for HRP certification. 
Proposed Sec. 712.11 describes the certification requirements for all 
individuals in the HRP. The proposed psychological evaluation 
requirements, for example, have been in effect for PAP individuals and 
would be a new requirement for other HRP participants. Under this 
proposal, all HRP participants will be subject to a psychological 
evaluation, which consists of a psychological assessment (test) and a 
semi-structured interview with the designated psychologist or a 
psychologist under his or her supervision. Every third year, as part of 
the annual psychological evaluation, a psychological assessment (test) 
will be required. This process will enable medical personnel to monitor 
participants.
    The proposed provision requiring HRP participants to submit 
annually the Questionnaire for National Security Position (QNSP), Part 
2, currently applies only to participants in the PSAP. Application of 
this requirement to all HRP participants, including those currently in 
PAP, is considered an important element in the Department's ongoing 
process of ensuring that HRP individuals are reliable and trustworthy.
    Random alcohol testing is proposed for all HRP positions. As 
discussed in the preamble, the DOE has a compelling interest in 
ensuring that individuals who hold an HRP position are functioning at 
the highest level of reliability. The DOE believes that misuse or abuse 
of alcohol presents a high level of risk at its research and production 
facilities. The risk of alcohol abuse or misuse by individuals in HRP 
positions warrants preventive action and intervention by the DOE to 
ensure protection of the environment, public health and safety, and 
national security.
    Section 712.12, HRP implementation. Each DOE site or facility must 
prepare an HRP implementation plan that includes the same four annual 
components currently used in PSAP: supervisory review, medical 
assessment, management evaluation, and a DOE security review.
    Many, but not all, of the PSAP and PAP positions are in the 
National Nuclear Security Administration. Section 3213 of the National 
Nuclear Security Administration Act (Pub. L. 106-65, Title XXXII) 
provides that no officer or employee of the NNSA, or contractor of the 
NNSA, may be ``subject to the authority, direction, or control of, any 
other officer, employee, or agent of the Department of Energy'' other 
than the Secretary of Energy (50 U.S.C. 2403). The proposed rule's 
section on implementation and other provisions has been drafted to 
satisfy this statutory limitation.
    Section 712.13, Supervisory review. The proposed HRP supervisory 
review section consolidates current PSAP and PAP requirements found in 
10 CFR 710.57 and 10 CFR 711.9, respectively.
    Section 712.14, Medical assessment. The proposed medical assessment 
process is largely descriptive of the current process used in both PSAP 
and PAP. The main difference is the application of the annual PAP 
psychological evaluations to all individuals currently in PSAP. The 
psychological evaluation, as part of the overall medical assessment, 
addresses an individual's mental or behavioral state as it relates to 
security and safety concerns. This evaluation includes a semi-
structured interview and completion of a psychological assessment. 
Through this evaluation process, an assessment is made as to whether 
the individual shows at-risk behavior or conditions, such as suicidal 
tendencies or attempted suicide, inability to deal with stress, 
hostility or aggression toward fellow workers or authority, 
uncontrolled anger, moodiness, depression, or other evidence of loss of 
emotional control. Individuals will be subject to an initial 
psychological evaluation and annual evaluations thereafter. 
Additionally, a psychological assessment (test) will be required every 
third year.
    Section 712.15, Management evaluation. The management evaluation 
conducted for certification and recertification in the HRP will be 
conducted by the appropriate HRP management official. The management 
official will review the results of the supervisory review, medical 
assessment, and drug and alcohol testing, and will forward his or her 
recommendation to the HRP certifying official. If the evaluation 
reveals a security concern, the HRP management official must notify the 
applicable DOE personnel security office. Drug-testing requirements 
have not changed and are in accordance with 10 CFR part 707, for DOE 
contractor employees and DOE Order 3792.3 for DOE employees. Random, 
unannounced alcohol testing is a new requirement and will conform to 
the DOT procedures (49 CFR part 40, subpart C) already required at many 
DOE sites.
    Section 712.16, DOE security review. As under the PAP and PSAP, 
security concerns identified at any stage of the certification process 
will be evaluated and resolved in accordance with DOE's regulations for 
determining eligibility for access to classified matter or special 
nuclear material in 10 CFR part 710, subpart A. This proposed rule will 
make no change to current policies and procedures.
    Section 712.17, Instructional requirements. Proposed Sec. 712.17 
will require an initial and annual HRP instructional and educational 
program. The areas of instruction must include the objectives of the 
HRP, role and responsibilities of each individual in the HRP, 
procedures for recognizing and reporting security concerns, nuclear 
explosive duties and safety requirements for individuals in nuclear 
explosive positions, and procedures for recognizing and responding to 
behavioral changes and aberrant behavior in the workplace.
    Section 712.18, Transferring HRP certification. Proposed 
Sec. 712.18 describes the process for transferring an individual's HRP 
certification from one site to another. An individual must be currently 
certified in the HRP to request such a transfer.
    Sections 712.19 through 712.23. The proposed rule's provisions for 
removing individuals from their HRP duties and resolving reliability 
concerns, which are not of a security concern, are similar to 
provisions in the current PAP regulations, 10 CFR 711.11 through 
711.16. Under the proposed rule, however, final appeals of decisions to 
deny or revoke certification will be made by the DOE Deputy Secretary 
based on a recommendation of the Director, Office of Security. If 
removal is based on a security concern, the procedure described in 10 
CFR part 710, will apply.
    Subpart B--Medical standards. Subpart B contains the standards and 
procedures used to conduct medical assessments of HRP individuals. 
These standards and procedures were developed through the PAP 
rulemaking, completed on September 8, 1998 (63 FR 48060), and codified 
in subpart B to part 711. These provisions will be revised to reflect 
current DOE organization and

[[Page 46916]]

requirements of the National Nuclear Security Administration Act.

III. Regulatory Review

A. Executive Order 12866

    Executive Order 12866, 58 FR 51735 (October 4, 1993) provides for a 
review by the Office of Information and Regulatory Affairs in the 
Office of Management and Budget of a ``significant regulatory action,'' 
which is defined as an action that may have an affect on the economy of 
$100 million or more or adversely affect the economy, competition, 
jobs, productivity, environment, public health or safety, or state, 
local or tribal governments. DOE has concluded that this proposed rule 
(10 CFR part 712) is not a significant regulatory action. Accordingly, 
this rulemaking has not been reviewed by the Office of Information and 
Regulatory Affairs.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires 
preparation of an initial regulatory flexibility analysis for every 
rule that must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. This 
rulemaking will not directly regulate small businesses or small 
governmental entities. It will apply principally to individuals who are 
employees of, or applicants for employment by, some of DOE's prime 
contractors, which are large businesses. There may be some affected 
small businesses that are subcontractors, but the rule will not impose 
unallowable costs. Accordingly, DOE certifies that the proposed rule, 
if promulgated, will not have a significant economic impact on a 
substantial number of small entities.

C. National Environmental Policy Act

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

D. Paperwork Reduction Act

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

E. Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 10, 1999), requires 
agencies to develop an accountable process to ensure meaningful and 
timely input by state and local officials in the development of 
regulatory policies that have ``federalism implications.'' Policies 
that have federalism implications are defined in the Executive Order to 
include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). DOE has examined this proposed rule and determined that it 
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 the Executive Order.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq., 
requires a Federal agency to perform a detailed assessment of the costs 
and benefits of any rule imposing a Federal mandate with costs to 
state, local, or tribal governments, or to the private sector of $100 
million or more. The proposed rule does not impose a Federal mandate 
requiring preparation of an assessment under the Unfunded Mandates 
Reform Act of 1995.

G. Executive Order 12988

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

H. Executive Order 13084

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

I. Treasury and General Government Appropriations Act, 1999

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

IV. Opportunity for Public Comment

A. Written Comments

    Interested individuals are invited to participate in this 
proceeding by submitting data, views, or comments on this proposed 
rule. To help DOE review the submitted comments, commenters are 
requested to reference the paragraphs [e.g., Sec. 712.13 (c)]
to which 
they refer. Seven copies of written comments should be submitted to the 
address indicated in the ADDRESSES section of this notice. Comments 
should

[[Page 46917]]

be identified on the outside of the envelope and on the comments 
themselves with the designated ``Human Reliability Program Rule, Docket 
No. SO-RM-00-HRP.'' If anyone wishing to provide written comments is 
unable to provide seven copies, alternative arrangements can be made in 
advance with the DOE. All comments received on or before the date 
specified at the beginning of this notice, and other relevant 
information before final action is taken on the proposed rule, will be 
considered.
    All submitted comments will be available for public inspection as 
part of the administrative record on file for this rulemaking in the 
DOE Freedom of Information Reading Room at the address indicated in the 
ADDRESSES section of this notice.
    Pursuant to the provisions of 10 CFR 1004.11, anyone submitting 
information or data that he or she believes to be confidential and 
exempt by law from public disclosure should submit one complete copy of 
the document, as well as two copies, if possible, from which the 
information has been deleted. The DOE will make its determination as to 
the confidentiality of the information and treat it accordingly.

B. Public Hearings

    Public hearings will be held at the times, dates, and locations 
indicated in the DATES and ADDRESSES section of this notice. DOE 
invites any person who has an interest in the proposed regulation, or 
who is a representative of a group or class of persons that has an 
interest, to make a request for an opportunity to make an oral 
presentation at the hearing. Requests to speak should be sent to the 
mailing address or e-mail address or made by calling the telephone 
number indicated in the DATES section of this notice. Requests must be 
received by the time specified in the DATES section of this notice. The 
person making the request should provide a daytime telephone number. 
Each person selected to speak at a public hearing will be notified as 
to his or her approximate speaking time. Seven copies of the statement 
should be brought to the hearing. If any person wishing to testify 
cannot meet this requirement, alternative arrangements may be made in 
advance with Linda Repass, at the address and telephone number 
indicated in the DATES section of this notice. The DOE reserves the 
right to select persons to be heard at each hearing, to schedule their 
presentations, and to establish procedures governing the conduct of the 
hearing. The length of each presentation will be limited to 10 minutes 
or less, based on the number of persons requesting to speak.
    A Departmental official will be designated to preside at the 
hearing. The hearing will not be a judicial or an evidentiary-type 
hearing but will be conducted in accordance with 5 U.S.C. 553 and 
section 501 of the Department of Energy Organization Act, 42 U.S.C. 
7191. Only those persons conducting the hearing may ask questions. At 
the conclusion of all initial oral statements, each person will be 
given the opportunity to make a rebuttal statement. The rebuttal 
statements will be given in the same order as the initial statements. 
Any further procedural rules needed for the proper conduct of the 
hearing will be announced by the Presiding Officer at the hearing.
    The DOE will retain the record of the full hearing, including the 
transcript, and make it available for inspection and copying in the DOE 
Freedom of Information Reading Room at the address provided in the 
ADDRESSES section of this notice of proposed rulemaking. Transcripts 
may be purchased from the court reporter.
    If the DOE must cancel a hearing, every effort will be made to 
publish an advance notice of such cancellation in the Federal Register. 
Notice of cancellation also will be given to all persons scheduled to 
speak at the hearing. Hearing dates may be canceled in the event no 
public testimony has been scheduled in advance.

List of Subjects

10 CFR Part 710

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

10 CFR Part 711

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

10 CFR Part 712

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

    Issued in Washington, DC, on June 21, 2002.
Spencer Abraham,
Secretary of Energy.
    For reasons stated in the preamble, the DOE hereby proposes to 
amend Chapter III of Title 10 of the Code of Federal Regulations as set 
forth below:

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

    1. The authority citation continues to read as follows:

    Authority: Sec. 145, 68 Stat. 942, as amended (42 U.S.C. 2165); 
sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); E.O. 10450; 3 
CFR 1949-1953 Comp., p. 936, as amended; E.O. 10865; 3 CFR 1959-1963 
Comp., p. 398 as amended; 3 CFR, Chap. IV, sec. 104(c); 38 Stat. 
1237 (42 U.S.C. 5814), sec. 105 (a); 88 Stat. 1238 (42 U.S.C. 5815).

Subpart B--[Removed]

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

PART 711--PERSONNEL ASSURANCE PROGRAM

    3. The authority citation continues to read as follows:

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

    4. Part 711 is removed.
    5. Part 712, Human Reliability Program is added to read as follows:

PART 712--HUMAN RELIABILITY PROGRAM

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

General Provisions

Sec.
712.1   Purpose.
712.2   Applicability.
712.3   Definitions.

Procedures

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

[[Page 46918]]

712.34   Site Occupational Medical Director.
712.35   Deputy Assistant Secretary for Health Studies.
712.36   Medical assessment process.
712.37   Evaluation for hallucinogen use.
712.38   Maintenance of medical records.

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

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

General Provisions

Sec. 712.1  Purpose.

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

Sec. 712.2  Applicability.

    The HRP applies to all applicants for, or current employees of DOE 
or a DOE contractor or subcontractor in a position defined or 
designated under Sec. 712.10 of this subpart as an HRP position.

Sec. 712.3  Definitions.

    The following definitions are used in this part:
    Accelerated Access Authorization Program means the DOE program for 
granting interim access to classified matter and special nuclear 
material based on a drug test, a National Agency Check, a psychological 
assessment, a counterintelligence-scope polygraph examination in 
accordance with 10 CFR Part 709, and a review of the applicant's 
completed ``Questionnaire for National Security Positions.'' (Standard 
Form 86).
    Access means:
    (1) A situation that may provide an individual proximity to or 
control over 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 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.
    Blood Alcohol Concentration means the measure, expressed as a 
decimal fraction, of the mass of alcohol in a volume of blood, which 
can be measured directly from blood or derived from the concentration 
of alcohol in a breath specimen.
    Certification means the formal action the HRP certifying official 
takes that permits an individual to perform HRP duties after it is 
determined that the individual meets the requirements for certification 
under this part.
    Contractor means subcontractors at all tiers and any industrial, 
educational, commercial, or other entity, grantee, or licensee, 
including an employee, that has executed an agreement with the Federal 
Government for the purpose of performing under a contract, license, or 
other arrangement.
    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 Operations Office Manager or 
designee, with the concurrence of the Deputy Assistant Secretary for 
Health Studies, to provide professional expertise in occupational 
medicine for the HRP.
    Designated Psychologist means a licensed Ph.D., or Psy.D., or 
clinical psychologist who has been nominated by the SOMD and approved 
by the Operations Office Manager or designee, with the concurrence of 
the Deputy Assistant Secretary for Health Studies, 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.
    Deputy Assistant Secretary for Health Studies means the DOE 
individual with responsibility for policy and quality assurance for DOE 
occupational medical programs.
    Drug abuse means use of an illegal drug or misuse of legal drugs.
    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.
    Flashback means a transient, spontaneous, and often unpredictable 
recurrence of aspects of a person's use of a hallucinogen that involves 
dramatic alteration of emotional state, perception, sensation, and 
behavior.
    Hallucinogen means any hallucinogenic drug or substance that has 
the potential to cause flashbacks.
    HRP-certified individual means an individual who has successfully 
completed the HRP requirements.
    HRP certifying official means the DOE Operations Office Manager or 
the manager's designee who certifies, recertifies, temporarily removes, 
or reviews the circumstances of an individual's removal from an HRP 
position.
    HRP individual means an individual being considered for assignment 
to an HRP position.
    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, but 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 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 a process that describes systematically the 
performance requirements of a job and identifies and defines the valid 
tasks and elements needed to satisfactorily perform the analyzed job.
    Medical assessment means an evaluation of an HRP and HRP-certified

[[Page 46919]]

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 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.
    Operations Office Manager means the manager of any DOE operations 
office as well as the Manager of the Rocky Flats Office, Manager of the 
Pittsburgh Naval Reactors Office, Manager of the Schenectady Naval 
Reactors Office, and, for the Washington, DC area, the Director, Office 
of Headquarters Security Operations.
    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.
    Reasonable suspicion means a suspicion based on an articulable 
belief that an individual uses illegal drugs or is under the influence 
of alcohol, drawn from reasonable inferences from particular facts, as 
detailed further in Part 707 of this title.
    Recertification means the formal action the HRP certifying official 
takes annually, not to exceed 12 months, that permits an employee to 
remain in the HRP and perform HRP duties.
    Reinstatement means the action the HRP certifying official takes 
after it has been determined that an employee who has been temporarily 
removed from the HRP meets the certification requirements of this part 
and can be returned to HRP duties.
    Reliability means an individual's ability to adhere to security and 
safety rules and regulations.
    Safety concern means any condition, practice, or violation that 
causes a substantial probability from which physical harm, property 
loss, and/or environmental impact could result.
    Security concern means the presence of information regarding an 
individual applying for or holding an HRP position that may be 
considered derogatory under the criteria listed in 10 CFR Part 710, 
Subpart A.
    Semi-structured interview means an interview by a Designated 
Psychologist, or a psychologist under his or her supervision, who has 
the latitude to vary the focus and content of the questions depending 
on the interviewee's responses.
    Site Occupational Medical Director (SOMD) means the physician 
responsible for the overall direction and operation of the occupational 
medical program at a particular site.
    Supervisor means an individual who has oversight and responsibility 
for a person holding an HRP position.
    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 Operations Office Manager and the HRP management official 
for NNSA and non-NNSA headquarters offices may nominate positions for 
the HRP that are not specified in paragraphs (a) (1) through (3) of 
this section or that have not previously been designated HRP positions. 
All such nominations must be submitted and approved by either the NNSA 
Administrator, his or her designee, or the appropriate Lead Program 
Secretarial Officer, or his or her designee.
    (c) Before nominating a position for designation as an HRP 
position, the Operations Office Manager or the HRP management official 
for NNSA and non-NNSA headquarters offices must analyze the risks the 
position poses for the particular operational program. If the analysis 
shows that more restrictive physical, administrative, or other controls 
could be implemented that would prevent the position from being 
designated an HRP position, those controls will be implemented, if 
practicable.
    (d) Nothing in this part prohibits contractors from establishing 
stricter employment standards for individuals who are nominated to DOE 
for certification or recertification in the HRP.

Sec. 712.11  General requirements for HRP certification.

    (a) The following certification requirements apply to each 
individual applying for or in an HRP position:
    (1) A DOE ``Q'' access authorization based on a background 
investigation, except for security police officers who have been 
granted an interim ``Q'' through the Accelerated Access Authorization 
Program;
    (2) The annual submission of SF-86, OMB Control No. 3206-0007, 
Questionnaire for National Security Positions, Part 2, and an annual 
review of the personnel security file;
    (3) Signed releases, acknowledgments, and waivers to participate in 
the HRP on forms provided by DOE;
    (4) Completion of initial and annual HRP instruction as provided in 
Sec. 712.17;
    (5) Successful completion of an initial and annual supervisory 
review, medical assessment, management evaluation, and a DOE personnel 
security review for

[[Page 46920]]

certification and recertification in accordance with this part;
    (6) No use of any hallucinogen in the preceding five years and no 
experience of flashback resulting from the use of any hallucinogen more 
than five years before applying for certification or recertification;
    (7) A psychological evaluation consisting of a generally accepted 
psychological assessment (test) and a semi-structured interview;
    (8) An initial and random, unannounced drug test for the use of 
illegal drugs at least once each 12 months in accordance with DOE 
policies implementing Executive Order 12564 or the relevant provisions 
of 10 CFR Part 707 for DOE contractors, and DOE Order 3792.3 ``Drug-
Free Federal Workplace Testing Implementation Program'' for DOE 
employees;
    (9) An initial and random unannounced alcohol test at least once 
each 12 months using an evidential-grade breath alcohol device, as 
listed on the Conforming Products List of Evidential Breath Measurement 
Devices published by the National Highway Traffic Safety Administration 
(49 CFR Part 40); and
    (10) Successful completion, if conducted, of a counterintelligence 
polygraph examination.
    (b) Each HRP individual must be certified in the HRP before being 
assigned to HRP duties and must be recertified annually, not to exceed 
12 months between recertifications. For certification:
    (1) Individuals in newly identified HRP positions must immediately 
sign the releases, acknowledgments, and waivers to participate in the 
HRP and complete initial instruction on the importance of security, 
reliability, and suitability. If these requirements are not met, the 
individual must be removed from the HRP position.
    (2) All remaining HRP requirements listed in paragraph (a) of this 
section must be completed in an expedited manner.
    (c) Alcohol consumption is prohibited within an eight-hour period 
preceding scheduled work for individuals performing nuclear explosive 
duties and for individuals in specific positions designated by either 
the Operations Office Manager, the NNSA Administrator, his or her 
designee, or the appropriate Lead Program Secretarial Officer, or his 
or her designee.
    (d) Individuals reporting for unscheduled nuclear explosive duties 
and those specific positions designated by either the Operations Office 
Manager, the NNSA Administrator or his or her designee, or the 
appropriate Lead Program Secretarial Officer, or his or her designee, 
will be asked prior to performing any type of work if they have 
consumed alcohol within the preceding eight-hour period. If they answer 
``no,'' they may perform their assigned duties but still may be tested.
    (e) An individual whose confirmatory breath alcohol test result is 
at or above an alcohol concentration of 0.02 percent is not permitted 
to perform scheduled or unscheduled duties until the individual's 
alcohol concentration is below 0.02 percent using an evidential-grade 
breath analysis device.
    (f) HRP-certified individuals must be tested for alcohol and/or 
drugs in accordance with section 712.15 (b), (c), (d), and (e) if they 
are involved in an incident, unsafe practice, or an occurrence, or if 
there is reasonable suspicion that they may be impaired.

Sec. 712.12  HRP implementation.

    (a) The implementation of the HRP at NNSA sites is the 
responsibility of the NNSA Administrator or his or her designee and the 
implementation at non-NNSA sites is the responsibility of the Lead 
Program Secretarial Officer or his or her designee.
    (b) Management officials for each site or facility with HRP 
positions must prepare an initial HRP implementation plan and submit it 
by [DATE 90 DAYS AFTER PUBLICATION OF FINAL RULE]
to the applicable 
Operations Office Manager for review and site approval. The 
implementation plan must:
    (1) Be reviewed and updated every two 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 under 
Sec. 712.17 of this part.
    (c) The Deputy Administrator for Defense Programs, NNSA must:
    (1) Provide advice and assistance to the Director, Office of 
Security, regarding policies, standards, and guidance for all nuclear 
explosive duty requirements; and
    (2) Be responsible for implementation of all nuclear explosive duty 
safety requirements.
    (d) The DOE Deputy Secretary, based on a recommendation of the 
Director, Office of Security, makes the final decision for any appeal 
of denial or revocation of certification or recertification from HRP.
    (e) The Director, Security Policy Staff, within the Office of 
Security, is responsible for HRP policy and must:
    (1) Ensure consistency of the HRP throughout the DOE and NNSA;
    (2) Review and comment on all HRP implementation plans to ensure 
consistency with policy; and
    (3) Provide policies and guidance, including instructional 
materials, to NNSA and non-NNSA field elements concerning the HRP, as 
appropriate.
    (f) The Operations Office Managers must:
    (1) Review and approve the HRP implementation plan for NNSA and 
non-NNSA sites/facilities under their cognizance and forward the plan 
to the Director, Security Policy Staff; and
    (2) Ensure that the HRP is implemented at the NNSA and non-NNSA 
sites/facilities under their cognizance.
    (g) The HRP Certifying Official must:
    (1) Approve placement, certification, recertification, temporary 
removal, and reinstatement of individuals into HRP positions;
    (2) Ensure that instructional requirements are implemented;
    (3) Immediately notify (for the purpose of limiting access) the 
appropriate HRP management official of a personnel security action that 
results in the suspension of access authorization; and
    (4) Ensure that the supervisory review, medical assessment, and 
management evaluation, including drug and alcohol testing, are 
conducted on an annual basis (not to exceed 12 months).
    (h) Individuals assigned to HRP duties must:
    (1) Execute HRP releases, acknowledgments, and waivers to 
facilitate the collection and dissemination of information, the 
performance of drug and alcohol testing, and medical examinations;
    (2) Notify the Site Occupational Medical Director immediately of a 
physical or mental condition requiring medication or treatment; and
    (3) Provide full, frank, and truthful answers to relevant and 
material questions, and when requested, furnish, or authorize others to 
furnish, information that DOE deems pertinent to reach a decision 
regarding HRP certification or recertification.
    (4) Report any observed or reported behavior or condition of 
another HRP-certified individual that could indicate a reliability 
concern, including those behaviors and conditions listed in Sec. 712.13 
(c), to a supervisor, the SOMD, or the HRP-certifying official.

[[Page 46921]]

Sec. 712.13  Supervisory review.

    (a) The supervisor must ensure that each individual tentatively 
selected for, 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 of tentatively selected 
individuals may not be further processed until these requirements are 
completed; and
    (2) The individual is immediately removed from the position.
    (b) Each supervisor of HRP-certified personnel must conduct an 
annual review of each HRP-certified individual during which the 
supervisor must evaluate information (including security concerns) 
relevant to the individual's suitability to perform HRP tasks in a 
reliable and safe manner.
    (c) The supervisor must report any concerns resulting from his or 
her review to the appropriate HRP management official. Types of 
behavior and conditions that would indicate a concern include, but are 
not limited to:
    (1) Psychological or physical disorders that impair performance of 
assigned duties;
    (2) Conduct that warrants referral for a criminal investigation or 
results in arrest or conviction;
    (3) Indications of deceitful or delinquent behavior;
    (4) Attempted or threatened destruction of property or life;
    (5) Suicidal tendencies or attempted suicide;
    (6) Use of illegal drugs or the abuse of legal drugs or other 
substances;
    (7) Alcohol use disorders;
    (8) Recurring financial irresponsibility;
    (9) Irresponsibility in performing assigned duties;
    (10) Inability to deal with stress, or the appearance of being 
under unusual stress;
    (11) Failure to comply with work directives, hostility or 
aggression toward fellow workers or authority, uncontrolled anger, 
violation of safety or security procedures, or repeated absenteeism; 
and
    (12) Significant behavioral changes, moodiness, depression, or 
other evidence of loss of emotional control.
    (d) The supervisor must immediately remove an HRP-certified 
individual from HRP duties, pursuant to Sec. 712.19, and temporarily 
reassign the individual to a non-HRP position if the supervisor 
believes the individual has demonstrated a security or safety concern 
that warrants such removal. If temporary removal is based on a security 
concern, the HRP management official must immediately notify the 
applicable DOE personnel security office and the HRP certifying 
official.
    (e) Based on the DOE personnel security office recommendation, the 
HRP certifying official will make the final decision about whether to 
reinstate an individual into an HRP position.
    (f) If temporary removal is based on a medical concern, the SOMD 
must report these restrictions in writing to the appropriate HRP 
management official, who will immediately notify the appropriate HRP 
certifying official, who will make the final determination in temporary 
removal actions.
    (g) The supervisor must immediately remove from HRP duties any 
Federal employee who does not obtain HRP recertification. The 
supervisor may reassign the individual or realign the individual's 
current duties.

Sec. 712.14  Medical assessment.

    (a) Purpose. The HRP medical assessment is performed to evaluate 
whether an individual tentatively selected for, or an incumbent in, an 
HRP position:
    (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 individuals tentatively selected for HRP certification 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 will conduct an intermediate 
evaluation:
    (i) If an HRP-certified individual requests an evaluation (i.e., 
self-referral);
    (ii) If an HRP-certified individual is referred by management for 
an evaluation; or
    (iii) As a routine return-to-work evaluation for an HRP-certified 
individual.
    (c) Process. The Designated Physician, under the supervision of the 
SOMD, is responsible for the medical assessment of HRP and HRP-
certified individuals. In performing this responsibility, the 
Designated Physician or the SOMD must integrate the medical 
evaluations, available testing results, psychological evaluations, any 
psychiatric evaluations, a review of current legal drug use, and any 
other relevant information. This information is used to determine if a 
reliability, safety, or security concern exists and if the individual 
is medically qualified for his or her assigned duties. If a security 
concern is identified, the Designated Physician or SOMD must 
immediately notify the HRP management official, who notifies the 
applicable DOE personnel security office and appropriate HRP certifying 
official.
    (d) Evaluation. The Designated Physician, with the assistance of 
the Designated Psychologist, must determine the existence or nature of 
any of the following:
    (1) Physical or medical disabilities, such as a lack of visual 
acuity, defective color vision, impaired hearing, musculoskeletal 
deformities, and neuromuscular impairment;
    (2) Mental 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/statement of duties. Employers must provide a 
job task analysis or statement of duties for each HRP individual or 
HRP-certified individual to both the Designated Physician and 
Designated Psychologist before the initial or annual medical assessment 
and psychological evaluation. Medical assessments and psychological 
evaluations may not be performed if a job task analysis or statement of 
duties has not been provided.
    (f) Psychological evaluations. Psychological evaluations must be 
conducted:
    (1) For initial HRP certification. This psychological evaluation 
consists of a psychological assessment (test) approved by the Deputy 
Assistant Secretary for Health Studies and a semi-structured interview.
    (2) For recertification. This psychological evaluation consists of 
a semi-structured interview. A psychological assessment (test) may also 
be conducted as warranted.
    (3) Every third year. The medical assessment for recertification 
must include a psychological assessment (test) approved by the Deputy 
Assistant Secretary for Health Studies.

[[Page 46922]]

    (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 SOMD before being allowed to 
return to normal duties. The SOMD must provide a written recommendation 
to the appropriate HRP supervisor regarding the individual's return to 
work. An HRP-certified individual in certain circumstances also may be 
required to report to the SOMD for written recommendation to return to 
normal duties after any period of sick leave.
    (h) Temporary removal or restrictions. 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 SOMD must recommend medical removal or medical 
restrictions immediately, in writing, to the appropriate HRP management 
official who will immediately notify the appropriate HRP certifying 
official. To reinstate or remove such restrictions, the SOMD must make 
this recommendation, in writing, to the HRP management official who 
will notify the appropriate HRP certifying official.
    (i) Medical evaluation after rehabilitation. (1) Individuals who 
request reinstatement in the HRP following treatment leading to 
rehabilitation from 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 an individual in the 
HRP 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 subjected to 
unannounced follow-up tests for illegal drugs or alcohol and relevant 
counseling for three years.
    (j) Medication and treatment. HRP-certified individuals are 
required to immediately report to the SOMD any physical or mental 
condition requiring medication or treatment. The SOMD determines if 
temporary removal of the individual from HRP duties is required and, if 
the individual is temporarily removed, informs the appropriate HRP 
management official of the action.

Sec. 712.15  Management evaluation.

    (a) Evaluation components. A management evaluation 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. The appropriate HRP management official 
must evaluate the information and forward his or her recommendation, 
including any safety concern, to the HRP certifying official. If the 
management evaluation reveals a security concern, the HRP management 
official must notify the applicable DOE personnel security office.
    (b) Drug testing. All HRP 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 and 
random, unannounced drug testing at least once every 12 months and 
testing of individuals in the HRP if involved in an incident, unsafe 
practice or occurrence, or based on reasonable suspicion. Failure to 
appear for unannounced testing within two hours of notification 
constitutes a refusal to submit to a test. An HRP-certified individual 
who has been determined to use illegal drugs based on a drug test must 
be immediately removed from HRP duties, and DOE personnel security must 
be notified immediately.
    (c) Alcohol testing. All HRP 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 and 
random unannounced alcohol testing at least once every 12 months and 
testing of individuals in the HRP if involved in an incident, unsafe 
practice, or occurrence, or based on reasonable suspicion. An HRP-
certified individual who has been determined to have a blood alcohol 
concentration (BAC) of 0.02 percent or greater must be immediately 
removed from the HRP position, and the HRP management official must be 
notified.
    (1) Breath alcohol testing must be conducted by a certified breath 
alcohol technician and conform to the DOT procedures (49 CFR Part 40, 
Alcohol Testing) for use of an evidential-grade breath analysis device 
approved for 0.02/0.04 cutoff levels that conforms to the DOT National 
Highway Traffic Safety Administration (NHTSA) 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 NHTSA, and, if such individual's 
blood alcohol level exceeds DOT standards, the individual's employer 
may take appropriate disciplinary action.
    (3) The supervisor must immediately remove an HRP-certified 
individual from his or her HRP position if the individual refuses to 
submit to a breath alcohol test and immediately notify the HRP 
management official of the removal. The following constitutes a refusal 
to submit to a test:
    (i) Failure to appear for unannounced testing within two hours of 
notification;
    (ii) Failure to provide an adequate volume of breath in two 
attempts, without a valid medical excuse; and
    (iii) Engaging in conduct that clearly obstructs the testing 
process, including failure to cooperate with reasonable instructions 
provided by the testing technician.
    (d) Occurrence testing. (1) When an HRP-certified individual is 
involved in, or associated with, an occurrence requiring immediate 
reporting to the DOE or the individual's behavior creates the basis for 
reasonable suspicion, 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.
    (ii) Testing for use of alcohol in accordance with this section.
    (2) Testing must be performed as soon as possible after an 
occurrence that requires immediate notification or reporting.
    (3) The supervisor must remove an HRP-certified individual from HRP 
duties if the individual refuses to undergo the testing required by 
this section.
    (e) Testing for reasonable suspicion. (1) If the behavior of an 
individual in an HRP position creates the basis for reasonable 
suspicion of the use of an illegal drug or alcohol, that individual 
must be tested if two or more supervisory or management officials, at 
least one of whom is in the direct chain of supervision of the 
individual or is the

[[Page 46923]]

SOMD, agree that such testing is appropriate.
    (2) Reasonable suspicion must be based on an articulable belief 
that an HRP-certified individual is in possession of, or under the 
influence of, an illegal drug or alcohol, drawn from facts and 
reasonable inferences from those particular facts. 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; or
    (iii) Information provided by a reliable and credible source that 
is independently corroborated.
    (f) Counterintelligence Polygraph Examination. All HRP individuals 
and, when selected, all HRP-certified individuals, must submit to and 
successfully complete a counterintelligence polygraph examination in 
accordance with 10 CFR Part 709, Polygraph Examination Regulations.

Sec. 712.16  DOE security review.

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

Sec. 712.17  Instructional requirements.

    (a) 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) Individuals, supervisors, and managers in HRP positions with 
the knowledge required to recognize and respond to behavioral change 
and aberrant behavior that may result in a risk to national security or 
nuclear explosive safety; and
    (2) For all HRP medical personnel, detailed explanation of HRP 
duties and responsibilities.
    (b) The following program elements must be included in initial and 
annual instruction:
    (1) The objectives of the HRP and the role and responsibilities of 
each individual in the HRP to include recognizing and reporting 
security concerns, prescription drug usage, return to work 
requirements, and continuous evaluation of HRP participants;
    (2) Instruction regarding the potential security and safety 
concerns from behavioral changes and aberrant behavior; and
    (3) For nuclear explosive responsibilities, detailed explanation of 
duties and safety requirements.

Sec. 712.18  Transferring HRP Certification.

    (a) An individual must be currently certified in the HRP to request 
transfer of HRP certification.
    (b) Transferring the HRP certification from one site to another 
requires completion of the following actions before the individual is 
allowed to perform HRP duties at the new site:
    (1) Verify that the individual is currently enrolled in the HRP and 
is transferring into a designated HRP position;
    (2) Transfer the personnel security file to the applicable DOE 
personnel security office;
    (3) Incorporate the individual into the new site's alcohol and 
drug-testing program;
    (4) Incorporate the initial approval dates into the annual HRP 
requirements; and
    (5) Receive site-specific instruction.
    (c) HRP-certified individuals on temporary assignment or being 
detailed to HRP positions at other sites require verification that the 
individual:
    (1) Is currently enrolled in the HRP;
    (2) Has met all site-specific instruction; and
    (3) Is required to return to the site that maintains the HRP 
certification for recertification.

Sec. 712.19  Removal from HRP.

    (a) Supervisory responsibilities. A supervisor who has a reasonable 
belief that an HRP-certified individual is not reliable, based on 
either a safety or security concern, must immediately remove that 
individual from those duties pending a determination of the 
individual's reliability. The supervisor must, at a minimum:
    (1) Require the individual to stop performing HRP duties;
    (2) Take action to ensure the individual is denied both escorted 
and unescorted access to the HRP work areas; and
    (3) Notify the individual and the HRP management official in 
writing of the reason for these actions within 24 hours.
    (b) Immediate removal of an HRP-certified individual from HRP 
duties is an interim, precautionary action and does not constitute a 
determination that the individual is not fit to perform his or her 
required duties. Removal is not, in itself, cause for loss of pay, 
benefits, or other changes in employment status.
    (c) Temporary removal. (1) If an HRP management official receives a 
supervisor's written notice of the immediate removal of an HRP-
certified individual, that official must direct the temporary removal 
of the individual pending an evaluation and determination regarding the 
individual's reliability.
    (2) If removal is based on a security concern, the HRP management 
official must notify the HRP certifying official and the applicable DOE 
personnel security office for resolution of the security concern under 
the criteria and procedures in 10 CFR Part 710.
    (3) The HRP management official must conduct an evaluation of the 
circumstances or information that led the supervisor to remove the 
individual from HRP duties. The HRP management official must prepare a 
written report of the evaluation that includes the HRP management 
official's determination of the individual's reliability for continuing 
HRP certification.
    (4) If the HRP management official determines that an individual 
who has been removed temporarily continues to meet the requirements for 
certification, the HRP management official must:
    (i) Notify the individual's supervisor of the determination and 
direct that the individual be allowed to return to HRP duties;
    (ii) Notify the individual; and
    (iii) Notify the HRP certifying official.
    (5) If the HRP management official determines that an individual 
who has been temporarily removed does not meet the requirements for 
certification, the HRP management official must forward the written 
report to the HRP certifying official. If the HRP certifying official 
is not the Operations Office Manager, the HRP certifying official

[[Page 46924]]

must review the written report and take one of the following actions:
    (i) Direct that the individual be reinstated and provide written 
explanation of the reasons and factual bases for the action;
    (ii) Direct continuation of the temporary removal pending 
completion of specified actions (e.g., medical assessment, treatment) 
to resolve the concerns about the individual's reliability; or
    (iii) Recommend to the Operations Office Manager the revocation of 
the individual's certification and, provide written explanation of the 
reasons and factual bases for the decision.
    (d) The Operations Office Manager, on receiving the HRP management 
official's written report and the HRP certifying official's 
recommendation (if any), must take one of the following actions:
    (1) Direct that the individual be reinstated and, provide written 
explanation of the reasons and factual bases for the action;
    (2) Direct the revocation of the individual's HRP certification; or
    (3) Direct continuation of the temporary removal pending completion 
of specified actions (e.g., medical assessment, treatment) to resolve 
the concerns about the individual's reliability.
    (e) If the action is revocation, the Operations Office Manager must 
provide the individual a copy of the HRP management official's report. 
The Manager may withhold such a report, or portions thereof, to the 
extent that he or she determines that the report, or portions thereof, 
may be exempt from access by the employee under the Privacy Act or the 
Freedom of Information Act.
    (f) If an individual is directed by the Operations Office Manager 
to take specified actions to resolve HRP concerns, he or she must be 
reevaluated by the HRP management and HRP certifying officials after 
those actions have been completed. After considering the HRP management 
and HRP certifying officials' report and recommendation, the Operations 
Office Manager must direct either:
    (1) Reinstatement of the individual; or
    (2) Revocation of the individual's HRP certification.
    (g) Notification of Operations Office Manager's initial decision. 
The Operations Office Manager must send by certified mail (return 
receipt requested) a written decision, including rationale, to an HRP 
individual or HRP-certified individual who is denied certification or 
whose certification is revoked. The Operations Office Manager's 
decision must be accompanied by notification to the individual, in 
writing, of the procedures pertaining to reconsideration or a hearing 
on the Operation Office Manager's decision.

Sec. 712.20  Request for reconsideration or certification review 
hearing.

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

Sec. 712.21  Office of Hearings and Appeals.

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

Sec. 712.22  Hearing officer's report and recommendation.

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

Sec. 712.23  Final decision by DOE Deputy Secretary.

    Within 20 working days of the receipt of the Director, Office of 
Security's recommendation, the Deputy Secretary should issue a final 
written decision. A copy of this decision must be sent by certified 
mail (return receipt requested) to the Operations Office Manager and to 
the individual accompanied by a copy of the hearing officer's report 
and the transcript of the certification review proceedings.

Subpart B--Medical Standards

Sec. 712.30  Applicability.

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

Sec. 712.31  Purpose.

    The standards and procedures set forth in this subpart are 
necessary for DOE to:

[[Page 46925]]

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

Sec. 712.32  Designated Physician.

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

Sec. 712.33  Designated Psychologist.

    (a) The Designated Psychologist reports to the SOMD and determines 
the psychological fitness of an individual to participate in the HRP. 
The results of this evaluation may be provided only to the Designated 
Physician or the SOMD.
    The Designated Psychologist must:
    (1) Hold a doctoral degree from a clinical psychology program that 
includes a one-year clinical internship approved by the American 
Psychological Association or an equivalent program;
    (2) Have accumulated a minimum of three years postdoctoral clinical 
experience with a major emphasis in psychological assessment (test);
    (3) Have a valid, unrestricted state license to practice clinical 
psychology in the state where HRP medical assessments occur;
    (4) Have met the applicable HRP instruction requirements; and
    (5) Be eligible for the appropriate DOE access authorization.
    (b) The Designated Psychologist is responsible for all 
psychological evaluations of HRP and HRP-certified individuals, and 
otherwise as directed by the SOMD. Although a portion of the 
psychological evaluation may be performed by another psychologist, the 
Designated Psychologist must:
    (1) Supervise the psychological evaluation process and designate 
which components may be performed by other qualified personnel;
    (2) Upon request of management, assess the psychological fitness of 
HRP individuals and HRP-certified individuals for HRP duties including 
specific work settings and recommend referrals as indicated; and
    (3) Make referrals for psychiatric, psychological, substance abuse, 
personal or family problems, and monitor the progress of individuals so 
referred.
    (c) The Designated Psychologist must immediately report to the SOMD 
any of the following about himself or herself:
    (1) Initiation of an adverse action by any state medical licensing 
board or any other professional licensing board;
    (2) Initiation of an adverse action by any Federal regulatory board 
since the last designation;
    (3) The withdrawal of the privilege to practice by any institution;
    (4) Being named a defendant in any criminal proceeding (felony or 
misdemeanor) since the last designation;
    (5) Being evaluated or treated for alcohol use disorder or drug 
dependency or abuse since the last designation; or
    (6) Occurrence of a physical or mental health condition that might 
affect his or her ability to perform professional duties since the last 
designation.

Sec. 712.34  Site Occupational Medical Director.

    (a) The SOMD must nominate a physician to serve as the Designated 
Physician and a clinical psychologist to serve as the Designated 
Psychologist. The nominations must be sent through the operations 
office to the Deputy Assistant Secretary for Health Studies. Each 
nomination must describe the nominee's relevant training, experience, 
and licensure, and include a curriculum vitae and a copy of the 
nominee's current state or district license.
    (b) The SOMD must submit a renomination report biennially through 
the Operations Office Manager to the Deputy Assistant Secretary for 
Health Studies. This report must be submitted at least 60 days before 
the second anniversary of the initial designation or of the last 
redesignation, whichever applies. The report must include:
    (1) A statement evaluating the performance of the Designated 
Physician and Designated Psychologist during the previous designation 
period; and
    (2) A copy of the valid, unrestricted state or district license of 
the Designated Physician and Designated Psychologist.
    (c) The SOMD must submit, annually, to the Deputy Assistant 
Secretary for Health Studies through the Operations Office Manager, a 
written report summarizing HRP medical activity during the previous 
year. The SOMD must comply with any DOE directives specifying the form 
or contents of the annual report.
    (d) The SOMD must investigate any reports of performance issues 
regarding a Designated Physician or Designated Psychologist, and the 
SOMD may suspend either official from HRP-related duties. If the SOMD 
suspends either official, the SOMD must notify the Deputy Assistant 
Secretary for Health

[[Page 46926]]

Studies and provide supporting documentation and reasons for the 
action.

Sec. 712.35  Deputy Assistant Secretary for Health Studies.

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

Sec. 712.36  Medical assessment process.

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

Sec. 712.37  Evaluation for hallucinogen use.

    If DOE determines that an HRP or HRP-certified individual has used 
any hallucinogen, the individual is not eligible for certification or 
recertification unless:
    (a) Five years have passed since the last use of the hallucinogen; 
and
    (b) The individual has a record of acceptable job performance and 
observed behavior.

Sec. 712.38  Maintenance of medical records.

    (a) The medical records of HRP and HRP-certified individuals must 
be maintained in accordance with the Privacy Act, 5 U.S.C. 552a and DOE 
implementing regulations in 10 CFR Part 1008; the Department of Labor's 
regulations on access to individual exposure and medical records, 29 
CFR 1910.1020; and applicable DOE directives. DOE contractors also may 
be subject to Sec. 503 of the Rehabilitation Act, 29 U.S.C. 793, and 
its implementing rules, including confidentiality provisions in 29 CFR 
60-741.23(d).
    (b) The psychological record of an HRP and HRP-certified individual 
is a component of the medical record. The psychological record must:
    (1) Contain any clinical reports, test protocols and data, notes of 
individual contacts and correspondence, and other information 
pertaining to an individual's contact with a psychologist;
    (2) Be stored in a secure location in the custody of the Designated 
Psychologist; and
    (3) Be kept separate from other medical record documents, with 
access limited to the SOMD and the Designated Physician.
    (c) The records of alcohol and drug testing must be maintained in 
accordance with 42 CFR Part 2, ``Confidentiality of Alcohol and Drug 
Abuse Patient Records,'' and 10 CFR Part 707, ``Workplace Substance 
Abuse Programs at DOE Sites.''

[FR Doc. 02-17803 Filed 7-16-02; 8:45 am]
BILLING CODE 6450-01-P