Personnel Assurance Program

DEPARTMENT OF ENERGY

10 CFR Part 711

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

RIN 1992-AA14

Personnel Assurance Program

AGENCY: Department of Energy.

ACTION: Notice of Proposed Rulemaking and Public Hearings.

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SUMMARY: The Department of Energy (DOE or Department) today proposes

Personnel Assurance Program (PAP) procedures and standards for DOE and

DOE contractor employees who are assigned nuclear explosive duties at

DOE facilities. The PAP is a systematic program, previously established

by internal DOE directive, to prevent accidental or unauthorized

detonation of nuclear explosives as a result of assignment of nuclear

explosives duties to employees who have become emotionally, mentally,

or physically incapacitated. The proposed rule includes medical

standards for evaluating DOE and contractor employees in the PAP.

DATES: Written comments (7 copies) on the proposed rule must be

received by the Department on or before August 4, 1997.

Oral views, data, and arguments may be presented at public hearings

which are scheduled as follows:

1. July 8, 1997, 9 a.m.-12 noon and 5 p.m-8 p.m., Amarillo, TX.

2. July 10, 1997, 10 a.m.-12 noon and 2 p.m-5 p.m., North Las

Vegas, NV.

Requests to speak at a hearing should be phoned in to the

Department, (202) 586-3012, no later than 4 p.m. on July 3, 1997, for

both hearings.

The length of each oral presentation is limited to 10 minutes.

t public hearings

which are scheduled as follows:

1. July 8, 1997, 9 a.m.-12 noon and 5 p.m-8 p.m., Amarillo, TX.

2. July 10, 1997, 10 a.m.-12 noon and 2 p.m-5 p.m., North Las

Vegas, NV.

Requests to speak at a hearing should be phoned in to the

Department, (202) 586-3012, no later than 4 p.m. on July 3, 1997, for

both hearings.

The length of each oral presentation is limited to 10 minutes.

ADDRESSES: Written comments (7 copies) should be mailed to: U.S.

Department of Energy, Office of Defense Programs, DP-21, Docket Number

DP-RM-97-100, 1000 Independence Ave. SW., Washington, DC 20585.

Requests to speak at a hearing may be phoned in to (202) 586-3012. The

public hearings will be held at the following locations.

1. Amarillo, TX, Sunset Convention Center, 3701 Plains Blvd (at

Western), Suite 135.

2. North Las Vegas, NV, USDOE, 232 Energy Way (off Losee Rd), room

A-106/107 (first floor, ``The Great Basin Room'').

Copies of transcripts from hearings and written comments may be

inspected and photocopied in the DOE Freedom of Information Reading

Room, Room 1E-190, (202) 586-6020, between the hours of 9:00 a.m. and

4:00 p.m., Monday through Friday, except Federal holidays.

For additional information concerning public participation in this

rulemaking, see the ``Opportunity for Public Comment'' section in the

Supplementary Information section of this proposed rule.

FOR FURTHER INFORMATION CONTACT: For further information concerning the

proposed rule: Mr. Randall Weidman, U.S. Department of Energy, Office

of Defense Programs (DP-21), 1000 Independence Ave. SW., Washington, DC

20585, (301) 903-3154.

For further information concerning Subpart B, Medical Assessments

for PAP Certification and Recertification: Mr. Kenneth O. Matthews,

Office of Occupational Medicine and Medical Surveillance (EH-61), 1000

Independence Ave. SW., U.S. Department of Energy, Washington, DC 20585,

ent of Energy, Office

of Defense Programs (DP-21), 1000 Independence Ave. SW., Washington, DC

20585, (301) 903-3154.

For further information concerning Subpart B, Medical Assessments

for PAP Certification and Recertification: Mr. Kenneth O. Matthews,

Office of Occupational Medicine and Medical Surveillance (EH-61), 1000

Independence Ave. SW., U.S. Department of Energy, Washington, DC 20585,

(301) 903-6398.

For further information concerning the public hearings and

submitting written comments: Ms. Andi Kasarsky, (202) 586-3012.

SUPPLEMENTARY INFORMATION:

I. Background

Pursuant to the Atomic Energy Act of 1954 (Act), DOE owns defense

nuclear facilities in various locations in the United States which are

operated by management and operating contractors under DOE supervision.

These facilities are involved in researching, testing, producing,

disassembling, and transporting of nuclear explosives which, when mated

with Department of Defense provided delivery systems, become nuclear

weapon systems.

Pursuant to section 161 of the Act, 42 U.S.C. 2201 (b), (i)(3), and

(p), DOE and its predecessor agencies--the Atomic Energy Commission

(AEC) and the Energy Research and Development Administration (ERDA)--

have used

some version of the PAP to certify, actively monitor, and periodically

recertify personnel as suitable to perform nuclear explosive duties in

a safe and reliable manner. PAP provides for disqualification of

persons from performance of nuclear explosive duties who fail to meet

PAP requirements for emotional, mental, and physical capability. In

DOE's internal administrative directives, DOE Order 452.2, formerly DOE

Order 5610.11, ``SAFETY OF NUCLEAR EXPLOSIVE OPERATIONS,'' the term

``Nuclear Explosive Duties'' has been defined to include DOE or

contractor employees who have custody of or ``access'' to a nuclear

explosive

of nuclear explosive duties who fail to meet

PAP requirements for emotional, mental, and physical capability. In

DOE's internal administrative directives, DOE Order 452.2, formerly DOE

Order 5610.11, ``SAFETY OF NUCLEAR EXPLOSIVE OPERATIONS,'' the term

``Nuclear Explosive Duties'' has been defined to include DOE or

contractor employees who have custody of or ``access'' to a nuclear

explosive. ``Access'' has been defined to mean: ``The proximity to a

nuclear explosive that affords a person the opportunity to tamper with

it or to cause a detonation.''

All PAP-certified employees are subject to continuous review and

evaluation. The certification of such employees is subject to immediate

review in light of facts and circumstances about an employee or an

employee's behavior indicating a reliability risk that warrants

protective action to neutralize a nuclear explosive hazard by having an

individual immediately removed from nuclear explosive duties. Immediate

removal does not constitute a determination that the individual is

unsuitable for nuclear explosive duties, but indicates that the

individual's suitability is in question.

The PAP procedures and standards are legally binding on contractors

under the terms and conditions of their contractual agreements which

require them to comply with applicable DOE directives. They also apply

to contractor personnel and could serve as the basis for the contractor

to take action affecting an employee's employment rights.

In 1992, the Independent Guard Association of Nevada, Local No. 1,

representing PAP-certifiable civilian security guards employed by

Wackenhut Security, Inc., at DOE's Nevada Test Site, brought suit

challenging DOE Order 5610.11, ``NUCLEAR EXPLOSIVE SAFETY,'' which

established the Department's nuclear explosive and weapons safety

program, including the PAP. The DOE Order was challenged for failure to

promulgate it through public notice and comment in compliance with the

Administrative Procedure Act, 5 U.S.C. 553

ployed by

Wackenhut Security, Inc., at DOE's Nevada Test Site, brought suit

challenging DOE Order 5610.11, ``NUCLEAR EXPLOSIVE SAFETY,'' which

established the Department's nuclear explosive and weapons safety

program, including the PAP. The DOE Order was challenged for failure to

promulgate it through public notice and comment in compliance with the

Administrative Procedure Act, 5 U.S.C. 553. In Independent Guard

Association of Nevada v. O'Leary, No. CV-S-92-204-LDG-LRL (D. Nev. June

14, 1996), the District Court enjoined DOE from enforcing the

requirements section (section 2) of DOE Order 5610.11, Chapter I,

against contractor employees pending notice and comment rulemaking

under 5 U.S.C. 553. DOE is now publishing this notice of proposed

rulemaking to codify the PAP employee certification procedures and

standards and other PAP-related policies, including the

responsibilities of the Site Occupational Medical Director (SOMD) and

other medical personnel. Subject to consideration of comments that are

submitted in response to this notice, DOE intends to issue a final rule

establishing PAP procedures and standards, including medical assessment

requirements applicable to the DOE and contractor employees performing

nuclear explosive duties.

Today's notice of proposed rulemaking contains provisions that are

similar to those in a notice of interim procedures and standands DOE

published in the Federal Register on October 9, 1996 (61 FR 53018). DOE

published the interim procedures and standards after finding good cause

for making them immediately effective pending completion of notice and

comment rulemaking. The proposal published today goes beyond the

interim procedures and standards by proposing, in Subpart B, more

detailed administrative procedures and standards for the conduct of

medical assessments used for PAP certification and recertification.

II. Description and Basis for Proposed PAP Procedures and Standards

them immediately effective pending completion of notice and

comment rulemaking. The proposal published today goes beyond the

interim procedures and standards by proposing, in Subpart B, more

detailed administrative procedures and standards for the conduct of

medical assessments used for PAP certification and recertification.

II. Description and Basis for Proposed PAP Procedures and Standards

The program elements of certification, periodic recertification,

and physical and psychological evaluation for cause are based on DOE's

experience, as well as the experience of DOE's predecessor agencies for

over 30 years. Both the AEC and ERDA had provisions in their manuals

for the PAP, and DOE has had internal administrative directives setting

forth PAP policies. Today's proposed rule contains several

modifications of the PAP as set forth in DOE directives. This part of

the Supplementary Information section discusses the meaning of, and the

basis for, those modifications and other proposed provisions of the

proposed rule that require explanation.

A. Discussion of Subpart A: Certification, Recertification, and

Revocation of PAP Certification

Subpart A includes, with few substantive changes, the provisions of

the interim procedures and standards published by DOE on October 9,

1996, except for section 11 of the interim procedures and standards

dealing with medical assessments. The medical assessment provisions

have now been incorporated in an expanded set of medical assessment

provisions in Subpart B of this proposed rule.

Proposed Sec. 711.3 sets forth definitions that apply to this Part.

The definitions of ``access,'' ``custody,'' ``nuclear explosive,''

``nuclear explosive area,'' ``nuclear explosive duties,'' and ``pit''

were developed in consultation with a variety of interested

stakeholders and experts and have been included in internal DOE orders

and directives

visions in Subpart B of this proposed rule.

Proposed Sec. 711.3 sets forth definitions that apply to this Part.

The definitions of ``access,'' ``custody,'' ``nuclear explosive,''

``nuclear explosive area,'' ``nuclear explosive duties,'' and ``pit''

were developed in consultation with a variety of interested

stakeholders and experts and have been included in internal DOE orders

and directives. The term ``alcohol use disorder'' is included as a

substitute for the term ``alcohol abuse'' that was used in the interim

procedures and standards. The definition of ``alcohol use disorder'' is

used in the occupational medical field to describe the condition

referred to in the interim procedures and standards as alcohol abuse.

``Hallucinogen'' is defined, for purposes of PAP, as any

hallucinogenic drug or substance that causes flashbacks. A definition

of ``flashback'' is included. The basis for these terms is discussed

more fully in connection with Sec. 711.5, ``General requirements.'' The

definition of ``illegal drug'' tracks the definitions of ``illegal

drug'' in 10 CFR 707.4 (``Workplace Substance Abuse Programs at DOE

Sites'') and 10 CFR 710.54 (applicable to DOE's Personnel Security

Assurance Program).

Proposed Sec. 711.4 contains general provisions that describe and

define the scope of the PAP. Paragraph (a) Would establish that PAP

certification is in addition to any other qualification requirements

that may apply to a particular job. Paragraph (b) would preserve the

contractor's authority to establish stricter standards, including

medical standards, for individuals the contractor nominates for PAP

certification or recertification. Paragraph (c) would provide that the

failure of an individual to be certified or recertified in the PAP

shall not, by itself, be cause for questioning the individual's

qualification for non-PAP duties or for loss of pay or other employment

benefits

to establish stricter standards, including

medical standards, for individuals the contractor nominates for PAP

certification or recertification. Paragraph (c) would provide that the

failure of an individual to be certified or recertified in the PAP

shall not, by itself, be cause for questioning the individual's

qualification for non-PAP duties or for loss of pay or other employment

benefits. While an individual's failure to be recertified in the PAP

would not automatically be cause for denial of non-PAP employment or

loss of pay, conduct that leads to an individual's removal from the PAP

(e.g., participation in illegal drug activity) may be the basis for an

adverse personnel management action (e.g., participation in illegal

drug activity). Paragraph (e) would grant broad authority to the

operations office manager to delegate most PAP responsibilities to

lower-level DOE officials. This delegation would provide necessary

flexibility in implementing the PAP.

Proposed Sec. 711.5(b)(3) would require each individual in the PAP

to be tested for illegal drugs at least once each calendar year in an

unannounced and unpredictable manner. In addition to this random

testing, DOE may test an individual for cause or reasonable suspicion

of illegal drug use, or after an accident or an unsafe practice

involving the individual. Drug testing procedures are dealt with in

Sec. 711.42.

Proposed Sec. 711.5(b)(4), and Sec. 711.43 in Subpart B, set forth

a special policy for disqualification from the PAP for hallucinogen

use. ``Hallucinogen'' is defined in proposed Sec. 711.3 so as to limit

PAP-disqualifying hallucinogens to those hallucinogenic drugs or

substances that cause flashbacks. The proposed rule provides that

hallucinogen use more than 5 years earlier is not, in itself, an

adequate basis for denying certification or recertification. The 5-year

rule reflects a period of time that should elapse, as a protective

practice, to minimize the likelihood of flashbacks

to limit

PAP-disqualifying hallucinogens to those hallucinogenic drugs or

substances that cause flashbacks. The proposed rule provides that

hallucinogen use more than 5 years earlier is not, in itself, an

adequate basis for denying certification or recertification. The 5-year

rule reflects a period of time that should elapse, as a protective

practice, to minimize the likelihood of flashbacks. ``Flashback'' is

the term used to describe a transient, spontaneous recurrence of

certain aspects of a person's hallucinogen experience. Flashbacks

typically have all of the qualities of the original experience, and

they are strongly felt. Because flashbacks are sudden, often

unpredictable, largely involuntary, dramatic alterations of emotional

state, perception, sensation, and behavior, an accident would likely

result if a flashback were to occur during the performance of a

hazardous task. Flashbacks may occur within a few days after

hallucinogen use, or they may occur a few weeks, months, or even years

later. In developing the proposed 5-year rule, DOE has consulted with

experts at the Alcohol, Drug Abuse and Mental Health Administration of

the Department of Health and Human Services. DOE has placed the views,

and a review of relevant studies, submitted by the National Institute

on Drug Abuse, in the docket established for this rulemaking. Although

an individual who used a hallucinogen more than 5 years earlier would

be considered for nuclear explosive duties, proposed Sec. 711.43

provides that an individual who has used a hallucinogen must undergo a

medical evaluation to determine reliability. In addition, the

individual must have an acceptable job record and observed behavior.

Proposed Sec. 711.6 sets forth details of the PAP certification

process. Paragraph (a) would assign the PAP certifying official the

responsibility for making the initial decision to certify or recertify

an individual in the PAP

used a hallucinogen must undergo a

medical evaluation to determine reliability. In addition, the

individual must have an acceptable job record and observed behavior.

Proposed Sec. 711.6 sets forth details of the PAP certification

process. Paragraph (a) would assign the PAP certifying official the

responsibility for making the initial decision to certify or recertify

an individual in the PAP. The PAP certifying official may be the

operations office manager, but more typically it will be a lower-level

official who has been delegated the certification authority by the

operations office manager or, on occasion, by the Secretary of Energy.

Paragraph (b) would direct each operations office manager who has

jurisdiction over PAP certification to issue implementing instructions

that accomplish specified objectives. Because of the varied nature of

the workforce at DOE sites, the proposed rule does not dictate the

implementation details, but rather sets forth performance standards for

PAP implementation.

Proposed Sec. 711.7 would require PAP administrators to maintain a

list of individuals certified in the PAP. The required list would be

used for DOE program administration purposes only, and would not be

considered as an authorization for an individual to perform PAP duties.

Proposed Sec. 711.9 would impose an obligation on supervisors to

report any observed or reported condition or behavior of a PAP

individual that gives rise to a reasonable belief that the individual

may not be able to perform assigned tasks in a safe and reliable

manner. Proposed Sec. 711.10 would impose the same obligation on

individuals in the PAP, including a duty of self-reporting. The non-

exclusive list in Sec. 711.9(b) includes a variety of conditions and

behavior that may raise PAP concerns. It is emphasized the purpose of

this reporting is only to determine whether an individual should be

removed from nuclear explosive duties.

Proposed Secs

manner. Proposed Sec. 711.10 would impose the same obligation on

individuals in the PAP, including a duty of self-reporting. The non-

exclusive list in Sec. 711.9(b) includes a variety of conditions and

behavior that may raise PAP concerns. It is emphasized the purpose of

this reporting is only to determine whether an individual should be

removed from nuclear explosive duties.

Proposed Secs. 711.11 through 711.16 would prescribe the procedures

that must be followed for resolving issues related to denial of

certification or recertification and revocation of PAP certification.

Proposed Sec. 711.11 would provide for the immediate removal of any

PAP-certified individual from nuclear explosive duties if a question is

raised about that individual's suitability.

Proposed Sec. 711.12 deals with the evaluation following temporary

removal from nuclear explosive duties; the recommendation of the PAP

certifying official; and the operations office manager's initial

decision and decision following a request for reconsideration or a

hearing before a certification review hearing officer.

Proposed Sec. 711.13 concerns the appointment of a certification

review hearing officer and DOE legal counsel. Paragraph (a)(2) would

ensure the independence of the hearing officer by providing that the

hearing officer may not have prior involvement with the matter for

which a hearing is requested, nor be directly supervised by any person

who is involved in the matter. Subject to the restrictions in paragraph

13 concerns the appointment of a certification

review hearing officer and DOE legal counsel. Paragraph (a)(2) would

ensure the independence of the hearing officer by providing that the

hearing officer may not have prior involvement with the matter for

which a hearing is requested, nor be directly supervised by any person

who is involved in the matter. Subject to the restrictions in paragraph

(a), the operations office manager would have discretion in selecting a

hearing officer. Depending on the availability of personnel and the

needs of a particular case, the manager may appoint a qualified field

office attorney to serve as hearing officer or request the DOE Office

of Hearings and Appeals to assign a hearing officer.

Proposed Sec. 711.16 would provide an individual who has been

denied certification or recertification the right to appeal the

operations office manager's final decision to the Assistant Secretary

for Defense Programs within 20 working days after receipt of the

manager's decision.

B. Discussion of Subpart B: Medical Assessments for PAP Certification

and Recertification

Subpart B includes the substance of the medical assessment

provisions in section 11 of the interim procedures and standards,

including the requirements for illegal drug and alcohol use disorder

evaluation and testing. In addition, Subpart B contains definitions

that apply to the medical assessment program; provisions on the

responsibilities of PAP-designated physicians and psychologists, the

SOMD, and other DOE officials; general medical standards for PAP

certification; and administrative requirements for medical assessments,

including provisions for the maintenance of medical records.

Proposed Sec. 711.22 includes definitions that are used in Subpart

B. The focus of a medical assessment under this subpart is on a PAP

individual's fitness for duty

ysicians and psychologists, the

SOMD, and other DOE officials; general medical standards for PAP

certification; and administrative requirements for medical assessments,

including provisions for the maintenance of medical records.

Proposed Sec. 711.22 includes definitions that are used in Subpart

B. The focus of a medical assessment under this subpart is on a PAP

individual's fitness for duty. The term ``fitness for duty'' is defined

to mean that the physical and mental health of a PAP individual is

adequate for the performance of nuclear explosive duties in a safe and

reliable manner. It is noted that ``fitness for duty'' is narrower than

the concept of ``PAP suitability'' used throughout Subpart A. ``PAP

suitability'' is a term of longstanding use in the PAP. It encompasses

all of the conditions or behavior listed in Sec. 711.9(b), some of

which may not involve the physical or mental health of an individual.

Proposed Sec. 711.30 sets forth the minimum qualifications of

designated physicians and their responsibilities. The designated

physician at a DOE site may serve multiple functions, including serving

as the security designated physician, the Medical Review Officer, and

firefighter designated physician. Proposed Sec. 711.31 sets forth the

minimum qualifications and responsibilities of designated

psychologists. The designated psychologist reports directly to the SOMD

and has the principal responsibility for assessing the psychological

fitness of individuals in the PAP. The SOMD's role in nominating

designated physicians and psychologists and overseeing the PAP medical

assessment program is covered in proposed Sec. 711.32.

Proposed Sec. 711.40 contains the general medical standards that

must be met by individuals certified in the PAP. An individual must be

free of any mental, emotional, physical or medical condition or

behavior that is likely to result in impaired ability to perform

assigned duties in a safe and reliable manner. Paragraphs (a) through

cal

assessment program is covered in proposed Sec. 711.32.

Proposed Sec. 711.40 contains the general medical standards that

must be met by individuals certified in the PAP. An individual must be

free of any mental, emotional, physical or medical condition or

behavior that is likely to result in impaired ability to perform

assigned duties in a safe and reliable manner. Paragraphs (a) through

(f) list conditions or behavior that may disqualify an individual from

nuclear explosive duties. A medical assessment, conducted as provided

in Subpart B, is required to determine whether an individual will be

denied initial certification or recertification because of any of the

listed conditions or behaviors.

Proposed Sec. 711.41 establishes requirements for the PAP medical

assessment process. Paragraph (a) would give the designated physician

the overall responsibility, subject to supervision by the SOMD, for the

medical assessment of PAP individuals for certification and

recertification. Paragraph (b) would require DOE and contractor

employers to provide a job task analysis, as defined in Sec. 711.22, to

the designated physician and designated psychologist as a prerequisite

to each medical assessment and psychological evaluation. Paragraph (c)

would require that medical assessments shall be conducted each time

there is a ``medical contact.'' Medical contacts include the medical

assessments required for initial recertification, annual

recertification, and recertification that occurs following the

revocation of an individual's removal from nuclear explosive duties.

Medical contacts also occur if an individual is transferred to a

different job, is self-referred or referred by his or her employer for

evaluation, returns to work after an absence for which an evaluation is

required by DOE directives, and if an individual's legal drug use is

reviewed.

Paragraph (d) presents details about medical assessments that

involve a psychological evaluation

e duties.

Medical contacts also occur if an individual is transferred to a

different job, is self-referred or referred by his or her employer for

evaluation, returns to work after an absence for which an evaluation is

required by DOE directives, and if an individual's legal drug use is

reviewed.

Paragraph (d) presents details about medical assessments that

involve a psychological evaluation. It refers to the use of a

``generally accepted, self-reporting psychological inventory tool''

together with a ``semi-structured interview'', both of which are

required initially. Also, the semi-structured interview is part of the

annual medical assessment for recertification, while the psychological

inventory tool is required every third year as part of the medical

assessment for recertification. The Minnesota Multi-phasic Personality

Inventory is an example of a psychological inventory tool. A ``semi-

structured interview'' means an interview by a designated psychologist

who has the latitude to vary the focus and content of the questions

depending upon the interviewee's responses.

Paragraph (f) concerns the handling of completed medical

assessments. Paragraph (f)(1) applies in cases of initial certification

and recertification in which the PAP individual is determined to meet

the requirements for recertification. In such cases, the designated

physician is directed to submit the completed medical assessment to the

SOMD, who shall forward a recommendation based on the assessment to the

individual's administrative organization and the PAP certifying

official. Paragraph (f)(2) applies to cases in which a currently

certified individual fails to meet the requirements for

recertification. In such cases, the designated physician is directed to

immediately inform the PAP certifying official and the PAP individual's

administrative organization.

Proposed Sec. 711.42 deals with policies applicable to detecting

and acting with regard to positive indications of drug abuse

) applies to cases in which a currently

certified individual fails to meet the requirements for

recertification. In such cases, the designated physician is directed to

immediately inform the PAP certifying official and the PAP individual's

administrative organization.

Proposed Sec. 711.42 deals with policies applicable to detecting

and acting with regard to positive indications of drug abuse. ``Drug

abuse'' is defined in proposed Sec. 711.22 to mean use of an illegal

drug or misuse of a legal drug. Paragraph (b) cross-references 10 CFR

part 707 which provides DOE's general policy to promote drug-free

workplaces, and applies to DOE contractors performing work at DOE-owned

or controlled sites. Paragraph (d) establishes conditions on

reinstatement in the PAP following rehabilitation. Proposed

Sec. 711.43, ``Evaluation of hallucinogen use,'' is discussed in

connection with proposed Sec. 711.5, ``General requirements,'' in

Subpart A.

Proposed Sec. 711.44 concerns medical assessments for alcohol use

disorder and specifies the blood alcohol concentration level that

warrants enforcement action. Based on a review of the practices of the

Federal Aviation Administration with regard to airplane pilots (14 CFR

91.17(a)(1); 49 CFR 382.505(b)), DOE has adopted the policy of

prohibiting alcohol consumption within an 8-hour period preceding

nuclear explosive duties and does not permit an individual to perform

nuclear explosive duties for a minimum of 24 hours in the event a

confirmatory breath alcohol test result is at or above 0.02 percent.

Removal from nuclear explosive duties due to results of a confirmatory

breath alcohol test could lead to revocation of PAP certification, but

there is provision for reinstatement following completion of an

approved alcohol treatment program.

Proposed Sec. 711.45 sets forth requirements that apply to

maintenance of medical records

matory breath alcohol test result is at or above 0.02 percent.

Removal from nuclear explosive duties due to results of a confirmatory

breath alcohol test could lead to revocation of PAP certification, but

there is provision for reinstatement following completion of an

approved alcohol treatment program.

Proposed Sec. 711.45 sets forth requirements that apply to

maintenance of medical records. Paragraph (c) would establish stringent

protections for psychological records, which are to be maintained

separately from other medical records of PAP individuals.

III. Opportunity for Public Comment

A. Written Comment Procedures

Written comments (7 copies) should be identified on the outside of

the envelope, and on the comments themselves, with the designation:

``Personnel Assurance Program NOPR, Docket Number DP-RM-97-100'' and

must be received by the date specified at the beginning of this notice.

In the event any person wishing to submit a written comment cannot

provide seven copies, alternative arrangements may be made in advance

by calling Ms. Andi Kasarsky at (202) 586-3012.

All comments received on or before the date specified at the

beginning of this notice and other relevant information will be

considered by DOE before final action is taken on the proposed rule.

All comments submitted will be available for examination in the Rule

Docket File in DOE's Freedom of Information Reading Room. In addition,

a transcript of the proceedings of the public hearings will be filed in

the docket.

Pursuant to the provisions of 10 CFR 1004.11, any person submitting

information or data that is believed to be confidential, and which may

be exempt by law from public disclosure, should submit one complete

copy, as well as two copies from which the information claimed to be

confidential has been deleted. The DOE will make its own determination

of any such claim.

B. Public Hearing Procedures

Pursuant to the provisions of 10 CFR 1004.11, any person submitting

information or data that is believed to be confidential, and which may

be exempt by law from public disclosure, should submit one complete

copy, as well as two copies from which the information claimed to be

confidential has been deleted. The DOE will make its own determination

of any such claim.

B. Public Hearing Procedures

The time and place of the public hearings are indicated at the

beginning of this notice. The Department invites any person who has an

interest in the proposed regulation, or who is a representative of a

group or class of persons which has an interest, to make a request for

an opportunity to make an oral presentation at the hearing. Requests to

speak should be sent to the address or phone number indicated in the

ADDRESSES section of this notice and be received by the time specified

in the DATES section of this notice.

The person making the request should provide a phone number where

they may be reached during the day. Each person selected to speak at a

public hearing will be notified as to the approximate time that they

will be speaking. They should bring seven (7) copies of their statement

to the hearing. In the event any person wishing to testify cannot meet

this requirement, alternative arrangements may be made in advance with

Ms. Andi Kasarsky, (202) 586-3012.

The DOE reserves the right to select persons to be heard at each

hearing, to schedule their presentations, and to establish procedures

governing the conduct of the hearing. The length of each presentation

will be limited to ten minutes, unless modified based on the number of

persons requesting to speak.

A Departmental official will be designated to preside at the

hearing. The hearing will not be a judicial or an evidentiary-type

hearing, but will be conducted in accordance with 5 U.S.C. 553 and

section 501 of the Department of Energy Organization Act, 42 U.S.C.

7191

gulatory Review

A. Review Under Executive Order 12866

Today's regulatory action has been determined not to be a

``significant regulatory action'' under Executive Order 12866 (58 FR

51735, October 4, 1993). Accordingly, this rulemaking has not been

reviewed by the Office of Information and Regulatory Affairs of the

Office of Management and Budget (OMB).

B. Review Under Executive Order 12612

Executive Order 12612 (52 FR 41685, October 30, 1987) requires that

regulations, rules, legislation, and other policy actions be reviewed

for any substantial direct effect on States, on the relationship

between the National Government and the States, or in the distribution

of power and responsibilities among various levels of government. If

there are substantial effects, then the Executive Order requires the

preparation of a federalism assessment to be used in all decisions

involved in promulgating and implementing policy action. The Department

has analyzed this rulemaking in accordance with the principles and

criteria contained in Executive Order 12612, and has determined there

are no federalism implications that would warrant the preparation of a

Federalism Assessment. The rule proposed today would apply to DOE and

DOE contractor personnel employed at defense nuclear facilities. The

proposed rule would not have a substantial direct effect on States, the

relationship between the States and Federal Government, or the

distribution of power and responsibilities among various levels of

government.

C. Review Under the Regulatory Flexibility Act

alism Assessment. The rule proposed today would apply to DOE and

DOE contractor personnel employed at defense nuclear facilities. The

proposed rule would not have a substantial direct effect on States, the

relationship between the States and Federal Government, or the

distribution of power and responsibilities among various levels of

government.

C. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires

preparation of an initial regulatory flexibility analysis for every

rule which by law must be proposed for public comment, unless the

agency certifies that the rule, if promulgated, will not have a

significant economic impact on a substantial number of small entities.

Today's proposed rule would affect a total of approximately 3,300 DOE

and contractor employees working at Government-owned or leased

facilities. Only a small number of the employees work for a small

entity. In addition, the DOE is formalizing a program that has been in

place at DOE nuclear explosive facilities for over 30 years, so the

economic impact of this proposed rule would be negligible. DOE

certifies that the proposed rule, if promulgated, will not have a

significant economic impact on a substantial number of small entities.

Public comment on this issue is invited.

D. Review Under the National Environmental Policy Act

The proposed rule would amend the PAP program which has been in

existence, pursuant to DOE directives, for approximately 30 years. In

addition, it relates to personnel qualifications and, if promulgated,

would have no impact on the environment. Categorical exclusions A1 and

A5 in Appendix A to Subpart D, 10 CFR part 1021 apply to this

rulemaking. The Department has therefore determined that neither an

environmental assessment nor an environmental impact statement is

required.

E. Review Under the Paperwork Reduction Act

In

addition, it relates to personnel qualifications and, if promulgated,

would have no impact on the environment. Categorical exclusions A1 and

A5 in Appendix A to Subpart D, 10 CFR part 1021 apply to this

rulemaking. The Department has therefore determined that neither an

environmental assessment nor an environmental impact statement is

required.

E. Review Under the Paperwork Reduction Act

The proposed rule does not contain a collection of information that

requires the approval of the OMB under the Paperwork Reduction Act, 44

U.S.C. 3501, et seq. OMB has defined the term ``information'' to

exclude certifications, consents, or acknowledgments that entail only

minimal burden. 5 CFR 1320.3(h)(1).

F. Review Under Executive Order 12988

With respect to the review of existing regulations and the

promulgation of new regulations, section 3(a) of Executive Order 12988,

``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on

Executive agencies the general duty to adhere to the following

requirements: (1) Eliminate drafting errors and ambiguity; (2) write

regulations to minimize litigation; and (3) provide a clear legal

standard for affected conduct rather than a general standard and

promote simplification and burden reduction. Section 3(b) of Executive

Order 12988 specifically requires that Executive agencies make every

reasonable effort to ensure that the regulation: (1) Clearly specifies

the preemptive effect, if any; (2) clearly specifies any effect on

existing Federal law or regulation; (3) provides a clear legal standard

for affected conduct while promoting simplification and burden

reduction; (4) specifies the retroactive effect, if any; (5) adequately

defines key terms; and (6) addresses other important issues affecting

clarity and general draftsmanship under any guidelines issued by the

Attorney General

clearly specifies any effect on

existing Federal law or regulation; (3) provides a clear legal standard

for affected conduct while promoting simplification and burden

reduction; (4) specifies the retroactive effect, if any; (5) adequately

defines key terms; and (6) addresses other important issues affecting

clarity and general draftsmanship under any guidelines issued by the

Attorney General. Section 3(c) of Executive Order 12988 requires

Executive agencies to review regulations in light of applicable

standards in section 3(a) and section 3(b) to determine whether they

are met or it is unreasonable to meet one or more of them. DOE has

completed the required review and determined that, to the extent

permitted by law, the proposed rule meets the relevant standards of

Executive Order 12988.

List of Subjects in 10 CFR Part 711

Administrative practice and procedure, Alcohol abuse, Drug abuse,

Government contracts, Government employees, Health, Nuclear safety,

Occupational safety and health.

Issued in Washington, DC on May 23, 1997.

Victor H. Reis,

Assistant Secretary for Defense Programs.

Peter N. Brush,

Principal Deputy Assistant Secretary for Environment, Safety and

Health.

For the reasons set forth in the preamble, Chapter III of title 10

of the Code of Federal Regulations is amended by adding new Part 711 to

read as set forth below:

PART 711--PERSONNEL ASSURANCE PROGRAM

Subpart A--Certification, Recertification, and Revocation of PAP

Certification

for Defense Programs.

Peter N. Brush,

Principal Deputy Assistant Secretary for Environment, Safety and

Health.

For the reasons set forth in the preamble, Chapter III of title 10

of the Code of Federal Regulations is amended by adding new Part 711 to

read as set forth below:

PART 711--PERSONNEL ASSURANCE PROGRAM

Subpart A--Certification, Recertification, and Revocation of PAP

Certification

Sec.

711.1 Purpose.

711.2 Applicability.

711.3 Definitions.

711.4 General.

711.5 General requirements.

711.6 PAP certification process.

711.7 Maintenance of PAP personnel list.

711.8 PAP training requirements.

711.9 Supervisor reporting.

711.10 Individual reporting.

711.11 Immediate removal from nuclear explosive duties.

711.12 Action following removal from duties.

711.13 Appointment of certification review hearing officer and

legal counsel.

711.14 Certification review hearing.

711.15 Hearing officer's submission.

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

Subpart B--Medical Assessments for PAP Certification and

Recertification

General Provisions

711.20 Applicability.

711.21 Purpose and scope.

711.22 Definitions.

Responsibilities and Authorities

711.30 Designated physician.

711.31 Designated psychologist.

711.32 Site Occupational Medical Director (SOMD).

711.33 Director, Office of Occupational Medicine and Medical

Surveillance.

711.34 Operations office managers.

Medical Assessment Process and Standards

711.40 Medical standards for certification.

711.41 Medical assessment process.

711.42 Medical assessment for drug abuse.

711.43 Evaluation of hallucinogen use.

711.44 Medical assessment for alcohol use disorder.

711.45 Maintenance of medical records.

Authority: 42 U.S.C. Sec. 2201, 7191.

Subpart A--Certification, Recertification, and Revocation of PAP

Certification

Sec. 711.1 Purpose.

ndards

711.40 Medical standards for certification.

711.41 Medical assessment process.

711.42 Medical assessment for drug abuse.

711.43 Evaluation of hallucinogen use.

711.44 Medical assessment for alcohol use disorder.

711.45 Maintenance of medical records.

Authority: 42 U.S.C. Sec. 2201, 7191.

Subpart A--Certification, Recertification, and Revocation of PAP

Certification

Sec. 711.1 Purpose.

The purpose of this part is to establish a PAP in the DOE. The PAP

is a human reliability program designed to ensure that individuals

assigned to nuclear explosive duties do not have emotional, mental, or

physical incapacities that could result in a threat to nuclear

explosive safety. The PAP establishes the requirements and

responsibilities for screening, selecting, and continuously evaluating

employees assigned to or being considered for assignment to nuclear

explosive duties.

Sec. 711.2 Applicability.

(a) This part applies to DOE Headquarters and field elements and

DOE contractors that manage, oversee, or conduct nuclear explosive

operations and associated activities, and to DOE and contractor

employees assigned to nuclear explosive duties.

(b) The provisions of this part do not apply to responses to

unplanned events (e.g., Accident Response Group activities), which are

addressed in DOE 5530-Series Orders and DOE Order 151.1,

``Comprehensive Emergency Management System.''

Sec. 711.3 Definitions.

uct nuclear explosive

operations and associated activities, and to DOE and contractor

employees assigned to nuclear explosive duties.

(b) The provisions of this part do not apply to responses to

unplanned events (e.g., Accident Response Group activities), which are

addressed in DOE 5530-Series Orders and DOE Order 151.1,

``Comprehensive Emergency Management System.''

Sec. 711.3 Definitions.

Access means proximity to a nuclear explosive that affords a person

the opportunity to tamper with it or to cause it to detonate.

Alcohol use disorder means a maladaptive pattern in which a

person's intake of alcohol is great enough to damage or adversely

affect physical or mental health or personal, social, or occupational

function; or when alcohol has become a prerequisite to normal function.

Contractor means the contractor and subcontractors at all tiers.

Custody means responsibility for control of and access to nuclear

explosives.

Flashback means a transient, spontaneous, and often unpredictable

recurrence of aspects of a person's use of a hallucinogen that involves

dramatic alteration of emotional state, perception, sensation, and

behavior.

Hallucinogen means any hallucinogenic drug or substance that has

the potential to cause flashbacks.

Illegal drug means a controlled substance, as specified in

Schedules I through V of the Controlled Substances Act, 21 U.S.C. 811,

812. The term ``illegal drug'' does not apply to the use of a

controlled substance in accordance with the terms of a valid

prescription, or other uses authorized by law.

Nuclear explosive means an assembly containing fissionable and/or

fusionable materials and main charge high explosive parts or

propellants capable of producing a nuclear detonation (e.g., a nuclear

weapon or test device).

Nuclear explosive area means any area that contains a nuclear

explosive or collocated pit and main charge high explosive parts

rescription, or other uses authorized by law.

Nuclear explosive means an assembly containing fissionable and/or

fusionable materials and main charge high explosive parts or

propellants capable of producing a nuclear detonation (e.g., a nuclear

weapon or test device).

Nuclear explosive area means any area that contains a nuclear

explosive or collocated pit and main charge high explosive parts.

Nuclear explosive duties means work assignments that allow custody

of a nuclear explosive or access to a nuclear explosive device or area.

Occupational medical program means a DOE program that:

(1) Assists in the maintenance, monitoring, protection, and

promotion of employee health through the skills of occupational

medicine, psychology, and nursing; and

(2) Maintains a close interface with allied health disciplines,

including industrial hygiene, health physics, and safety.

Operations office manager or manager means the manager of a DOE

operations office.

PAP certifying official or certifying official means the operations

office manager or the manager's delegate who certifies, recertifies, or

reviews the circumstances of an individual's removal from nuclear

explosive duties, or another individual who is delegated the

certification function by the Secretary of Energy.

PAP individual means an individual being considered for assignment

or assigned to perform nuclear explosive duties.

Pit means a fissile component, or a set of fissile components,

designed to fit in the central cavity of an implosion system and which

if placed therein will create a nuclear explosive.

Site Occupational Medical Director means the physician responsible

for the overall direction and operation of the site occupational

medical program.

Sec. 711.4 General.

(a) PAP certification is required of each individual assigned to

nuclear explosive duties in addition to any other job qualification

requirements that apply.

tem and which

if placed therein will create a nuclear explosive.

Site Occupational Medical Director means the physician responsible

for the overall direction and operation of the site occupational

medical program.

Sec. 711.4 General.

(a) PAP certification is required of each individual assigned to

nuclear explosive duties in addition to any other job qualification

requirements that apply.

(b) Nothing in this part shall be construed as prohibiting

contractors from establishing stricter suitability standards for

selecting candidates for nomination to DOE for certification or

recertification in the PAP.

(c) The failure of an individual to be certified or recertified in

the PAP shall not, in itself, reflect on the individual's suitability

for assignment to other duties or, in itself, be a cause for loss of

pay or other benefits or other changes in employment status.

(d) Personnel management actions based on the consideration of

technical competence and other job qualification requirements shall be

considered only if they are based on behavior that also

affects an individual's suitability for the PAP.

(e) The use of any hallucinogen having the potential to cause

flashbacks is incompatible with PAP duties and must be evaluated prior

to certification or recertification.

(f) Except for the functions in Sec. 711.12 (d), (e) and (h), an

operations office manager may delegate PAP functions to a deputy

manager, assistant manager, division director, and/or area office

manager.

Sec. 711.5 General requirements.

(a) Each PAP individual shall be certified in the PAP before being

assigned to nuclear explosive duties and shall be recertified annually,

not to exceed 12 months between recertifications.

c. 711.12 (d), (e) and (h), an

operations office manager may delegate PAP functions to a deputy

manager, assistant manager, division director, and/or area office

manager.

Sec. 711.5 General requirements.

(a) Each PAP individual shall be certified in the PAP before being

assigned to nuclear explosive duties and shall be recertified annually,

not to exceed 12 months between recertifications.

(b) To be certified or recertified in the PAP, an individual

shall--

(1) Have an active final DOE Q access authorization;

(2) Sign an acknowledgment and agreement to participate in the PAP

on a form provided by DOE;

(3) Be interviewed and briefed on the importance of the nuclear

explosive duty assignment and PAP objectives and requirements;

(4) Complete a medical assessment for certification and

recertification in accordance with subpart B of this part;

(5) Not have used any hallucinogen in the preceding 5 years, and

shall not be susceptible to flashbacks resulting from use of any

hallucinogen more than 5 years before applying for certification or

recertification; and

(6) Be tested for illegal drugs at least once each calendar year in

an unannounced and unpredictable manner; an individual may be tested

for cause or reasonable suspicion or after an accident or an unsafe

practice involving the individual.

(c) If an individual in the PAP refuses to submit a urine sample

for illegal drug testing or attempts deception by substitution,

adulteration, or other means, DOE immediately shall remove the

individual from nuclear explosive duties.

(d) An individual's PAP certification shall be revoked if use of an

illegal drug is confirmed through drug testing, as provided in

Sec. 711.42 of subpart B.

(e) An individual whose PAP certification is revoked may be

reinstated in the PAP if the individual successfully completes an SOMD-

approved drug rehabilitation program, as provided in Sec. 711.42 of

subpart B.

nuclear explosive duties.

(d) An individual's PAP certification shall be revoked if use of an

illegal drug is confirmed through drug testing, as provided in

Sec. 711.42 of subpart B.

(e) An individual whose PAP certification is revoked may be

reinstated in the PAP if the individual successfully completes an SOMD-

approved drug rehabilitation program, as provided in Sec. 711.42 of

subpart B.

(f) If an individual chooses to not participate in the PAP, he or

she shall sign a refusal of consent form provided by DOE.

Sec. 711.6 PAP certification process.

(a) The PAP certifying official shall determine each PAP

individual's suitability for certification or recertification in the

PAP and review the circumstances concerning an individual's removal

from nuclear explosive duties and possible recertification.

(b) Each operations office manager who exercises jurisdiction over

PAP certification shall issue instructions for implementing the PAP. At

a minimum, the instructions shall provide for:

(1) Conducting a supervisory interview of each PAP individual,

during which the supervisor shall determine the individual's

willingness to accept the requirements and conditions of the PAP;

(2) Ensuring that each PAP individual undergoes a medical

assessment under subpart B of this part;

(3) Ensuring that the personnel security file of each PAP

individual is reviewed by a DOE employee trained to identify PAP

concerns before the individual is certified or recertified;

(4) Ensuring that other available personnel data or information

about each PAP individual is reviewed by an employee trained to

identify PAP concerns before the individual is certified or

recertified;

(5) Allowing the exchange of information about a PAP individual

among responsible DOE officials during the certification,

recertification, or certification revocation process;

or recertified;

(4) Ensuring that other available personnel data or information

about each PAP individual is reviewed by an employee trained to

identify PAP concerns before the individual is certified or

recertified;

(5) Allowing the exchange of information about a PAP individual

among responsible DOE officials during the certification,

recertification, or certification revocation process;

(6) Requesting certification or recertification of a contractor

employee when the contractor has determined, on the basis of all

available information, that the individual is suitable for the PAP. The

contractor requesting certification or recertification shall, in

writing, assure the PAP certifying official that all PAP certification

requirements have been met;

(7) Addressing any requirement not met during the recertification

process, and requiring a contractor to provide any additional personal

data or information in its possession that may have a bearing on

recertification of an individual;

(8) Documenting certification and recertification of each PAP

individual on a form provided by DOE;

(9) Developing a mechanism for co-workers, supervisors, and

managers to communicate concerns about a PAP individual's suitability

for nuclear explosive duties;

(10) Ensuring that PAP concerns are reported to an appropriate

official, as specified in Secs. 711.9 and 711.10, for timely

resolution; and

(11) Providing that the processing of a request for certification

or recertification of an individual is terminated if the individual is

no longer being considered for assignment to nuclear explosive duties

or is no longer assigned to such duties. If, subsequently, the

individual is considered for assignment to nuclear explosive duties,

the certification or recertification process must be completely redone.

Sec. 711.7 Maintenance of PAP personnel list.

ion

or recertification of an individual is terminated if the individual is

no longer being considered for assignment to nuclear explosive duties

or is no longer assigned to such duties. If, subsequently, the

individual is considered for assignment to nuclear explosive duties,

the certification or recertification process must be completely redone.

Sec. 711.7 Maintenance of PAP personnel list.

Operations office managers who conduct PAP certification and

recertification shall establish procedures for developing and

maintaining a current list of DOE and contractor personnel certified in

the PAP. The list is to be used for program administration and is not

an authorization for personnel to perform nuclear explosive duties. The

list shall be promptly updated and verified on a quarterly basis.

Sec. 711.8 PAP training requirements.

(a) Operations office managers shall ensure that each individual

who is assigned to nuclear explosive duties receives special training

in PAP objectives, policies, and requirements.

(b) Operations office managers shall ensure that DOE and contractor

supervisory personnel and PAP certifying officials receive training

that includes:

(1) A detailed explanation of nuclear explosive duties and nuclear

explosive safety;

(2) Instruction on PAP objectives, policies, and requirements;

(3) Instruction on the early identification of behavior that may

indicate a degradation in reliability or judgment; and

(4) Special emphasis on the importance of timely reporting of any

PAP concern to appropriate personnel.

ining

that includes:

(1) A detailed explanation of nuclear explosive duties and nuclear

explosive safety;

(2) Instruction on PAP objectives, policies, and requirements;

(3) Instruction on the early identification of behavior that may

indicate a degradation in reliability or judgment; and

(4) Special emphasis on the importance of timely reporting of any

PAP concern to appropriate personnel.

(c) Operations office managers shall ensure that medical personnel

who perform medical assessments receive, before performing PAP

responsibilities, training that includes:

(1) A detailed explanation of nuclear explosive duties and nuclear

explosive safety;

(2) Instruction on PAP objectives, policies, and requirements;

(3) An orientation on nuclear explosive processing and the work

environment in nuclear explosive areas;

(4) Annual professional training on current issues and concerns

relative to psychological assessment; and

(5) Special emphasis on the importance of timely reporting of any

PAP concern to appropriate personnel.

(d) Operations office managers shall establish and maintain a

system for documenting the training received by PAP-certified

individuals, supervisors of PAP personnel, and medical personnel with

PAP-related duties.

Sec. 711.9 Supervisor reporting.

(a) Supervisors shall document and report to a PAP official and the

SOMD, if appropriate, any observed or reported behavior or condition of

an individual that causes the supervisor to have a reasonable belief

that the individual's ability to perform assigned tasks in a safe and

reliable manner may be impaired.

and medical personnel with

PAP-related duties.

Sec. 711.9 Supervisor reporting.

(a) Supervisors shall document and report to a PAP official and the

SOMD, if appropriate, any observed or reported behavior or condition of

an individual that causes the supervisor to have a reasonable belief

that the individual's ability to perform assigned tasks in a safe and

reliable manner may be impaired.

(b) Behavior and conditions that could indicate unsuitability for

the PAP include, but are not limited to, the following:

(1) Psychological or physical disorders that impair performance of

assigned duties;

(2) Conduct that is illegal or results in arrest or conviction;

(3) Indications of deceitful or delinquent behavior;

(4) Attempted or threatened destruction of property or life;

(5) Suicidal tendencies or attempted suicide;

(6) Use of illegal drugs or the abuse of legal drugs or other

substances;

(7) Alcohol use disorder;

(8) Recurring financial irresponsibility;

(9) Irresponsibility in performing assigned duties;

(10) Inability to deal with stress, or the appearance of being

under unusual stress;

(11) Failure to understand work directives, hostility or aggression

toward fellow workers or authority, uncontrolled anger, violation of

safety or security procedures, or repeated absenteeism; and

(12) Significant behavioral changes, moodiness, depression, or

other evidence of loss of emotional control.

Sec. 711.10 Individual reporting.

(a) An individual in the PAP shall report any observed or reported

behavior or condition of another PAP individual that could indicate the

individual's unsuitability for nuclear explosive duties, including the

behaviors and conditions listed in Sec. 711.9, to a supervisor, the

SOMD, or a PAP official.

ession, or

other evidence of loss of emotional control.

Sec. 711.10 Individual reporting.

(a) An individual in the PAP shall report any observed or reported

behavior or condition of another PAP individual that could indicate the

individual's unsuitability for nuclear explosive duties, including the

behaviors and conditions listed in Sec. 711.9, to a supervisor, the

SOMD, or a PAP official.

(b) An individual in the PAP shall report any behavior or

condition, including any behavior or condition listed in Sec. 711.9,

that may affect his or her own suitability for nuclear explosive duties

to a supervisor, the SOMD, or a PAP official.

Sec. 711.11 Immediate removal from nuclear explosive duties.

(a) A supervisor who has a reasonable belief that an individual in

the PAP is not suitable for nuclear explosive duties shall immediately

remove that individual from those duties pending a determination of the

individual's suitability. The supervisor shall, at a minimum, require

the individual to stop performing nuclear explosive duties and deny the

individual access to nuclear explosive areas.

(b) A supervisor who removes an individual from nuclear explosive

duties shall notify the PAP certifying official of the action and the

reasons that led to the removal of the individual from nuclear

explosive duties as soon as possible, and shall forward this

information, in writing, to the PAP certifying official within 24

hours.

(c) Immediate removal of an individual from nuclear explosive

duties is an interim, precautionary action and does not constitute a

determination that the individual is not fit for nuclear explosive

duties. Removal from nuclear explosive duties shall not, in itself, be

cause for loss of pay or other benefits or other changes in employment

status.

Sec. 711.12 Action following removal from duties.

Immediate removal of an individual from nuclear explosive

duties is an interim, precautionary action and does not constitute a

determination that the individual is not fit for nuclear explosive

duties. Removal from nuclear explosive duties shall not, in itself, be

cause for loss of pay or other benefits or other changes in employment

status.

Sec. 711.12 Action following removal from duties.

(a) Temporary removal. If a PAP certifying official receives a

supervisor's written notice of the immediate removal of an individual

from nuclear explosive duties, the certifying official shall direct the

removal of the individual from PAP duties pending an evaluation and

determination regarding the individual's suitability for nuclear

explosive duties.

(b) Evaluation. The PAP certifying official shall conduct an

evaluation of the circumstances or information that led the supervisor

to remove the individual from nuclear explosive duties. The PAP

certifying official shall prepare a written report of the evaluation

that includes the certifying official's determination regarding the

individual's suitability for continuing PAP certification.

(c) PAP certifying official's action. (1) If the PAP certifying

official determines that an individual who has been temporarily removed

from nuclear explosive duties continues to meet the requirements for

certification in the PAP, the certifying official shall:

(i) Notify the operations office manager of the determination; and

(ii) Notify the individual's supervisor of the determination and

direct that the individual be allowed to return to nuclear explosive

duties.

ermines that an individual who has been temporarily removed

from nuclear explosive duties continues to meet the requirements for

certification in the PAP, the certifying official shall:

(i) Notify the operations office manager of the determination; and

(ii) Notify the individual's supervisor of the determination and

direct that the individual be allowed to return to nuclear explosive

duties.

(2) If the PAP certifying official determines that an individual

who has been temporarily removed from PAP duties does not meet the

requirements for certification in the PAP, the certifying official

shall refer the matter to the operations office manager for action. The

certifying official shall submit the evaluation report to the

operations office manager and a recommendation that the individual's

PAP certification be revoked.

(d) Operations office manager's initial decision. After receipt of

a PAP certifying official's evaluation report and recommendation for

revoking an individual's PAP certification, the operations office

manager shall take one of the following actions:

(1) Direct that the individual be reinstated in the PAP and, in

writing, explain the reasons and factual basis for the action;

(2) Direct the revocation of the individual's PAP certification

and, in writing, explain the reasons and factual basis for the

decision; or

(3) Direct continuation of the temporary removal pending completion

of specified actions (e.g., medical assessment, security evaluation,

treatment) to resolve the concerns about the individual's suitability

for the PAP.

and factual basis for the action;

(2) Direct the revocation of the individual's PAP certification

and, in writing, explain the reasons and factual basis for the

decision; or

(3) Direct continuation of the temporary removal pending completion

of specified actions (e.g., medical assessment, security evaluation,

treatment) to resolve the concerns about the individual's suitability

for the PAP.

(e) Reinstatement after completion of specified actions. An

individual directed by the operations office manager to take specified

actions to resolve PAP concerns shall be reevaluated by the certifying

official after those actions have been completed. After considering the

PAP certifying official's evaluation report and recommendation, the

operations office manager shall direct either:

(1) Reinstatement of the individual in the PAP; or

(2) Revocation of the individual's PAP certification.

(f) Notification of operations office manager's initial decision.

The operations office manager shall send by certified mail, return

receipt requested, a written decision to an individual who is denied

certification or recertification. The operations office manager's

decision shall be accompanied by notification to the individual, in

writing, of the procedures in paragraph (g) of this section and

Secs. 711.14--711.16 pertaining to reconsideration or review of the

manager's decision.

(g) Request for reconsideration or certification review hearing. An

individual who receives notification of an operation office manager's

decision to deny or revoke their PAP certification may choose one of

the following options:

(1) Take no action;

of the procedures in paragraph (g) of this section and

Secs. 711.14--711.16 pertaining to reconsideration or review of the

manager's decision.

(g) Request for reconsideration or certification review hearing. An

individual who receives notification of an operation office manager's

decision to deny or revoke their PAP certification may choose one of

the following options:

(1) Take no action;

(2) Submit a written request to the operations office manager for

reconsideration of the decision to deny or revoke certification. The

request shall include the individual's response to any information that

gave rise to a concern about the individual's suitability for nuclear

explosive duties. The statement shall be signed under oath or

affirmation before a notary public, and must be received by the

operations office manager within 20 working days after the individual

received notice of the office manager's decision; or

(3) Submit a written request to the operations office manager for a

certification review hearing. The request for a hearing must be

received by the operations office manager within 20 working days after

the individual receives notice of the office manager's decision.

(h) Operations office manager's decision after reconsideration or

hearing. (1) If an individual requests reconsideration by the

operations office manager but not a certification review hearing, the

manager shall, within 20 working days, send by certified mail, return

receipt requested, to the individual a final decision as to suitability

based upon the individual's response and other relevant information

available to the manager.

n after reconsideration or

hearing. (1) If an individual requests reconsideration by the

operations office manager but not a certification review hearing, the

manager shall, within 20 working days, send by certified mail, return

receipt requested, to the individual a final decision as to suitability

based upon the individual's response and other relevant information

available to the manager.

(2) If an individual requests a certification review hearing, the

operations office manager shall decide the matter after receipt of the

certification review hearing officer's submission, as provided in

Sec. 711.15. The operations office manager shall, within 20 working

days, send by certified mail, return receipt requested, the manager's

final decision to the individual, accompanied by a copy of the hearing

officer's findings and recommendations, and the transcript of the

certification review proceedings.

Sec. 711.13 Appointment of a certification review hearing officer and

legal counsel.

(a) After receiving an individual's request for a certification

review hearing, the operations office manager shall promptly appoint a

certification review hearing officer. The hearing officer shall:

(1) Be a DOE attorney or a hearing official from the DOE Office of

Hearings and Appeals and have a DOE Q access authorization; and

(2) Have no prior involvement in the matter or be directly

supervised by any person who is involved in the matter.

(b) The operations office manager shall also appoint a DOE attorney

as counsel for DOE, who shall assist the hearing officer by:

(1) Obtaining evidence;

(2) Arranging for the appearance of witnesses;

(3) Examining and cross-examining witnesses; and

(4) Notifying the individual in writing, at least 7 working days in

advance, of the scheduled place, date, and hour where the hearing will

take place.

Sec. 711.14 Certification review hearing.

int a DOE attorney

as counsel for DOE, who shall assist the hearing officer by:

(1) Obtaining evidence;

(2) Arranging for the appearance of witnesses;

(3) Examining and cross-examining witnesses; and

(4) Notifying the individual in writing, at least 7 working days in

advance, of the scheduled place, date, and hour where the hearing will

take place.

Sec. 711.14 Certification review hearing.

(a) The certification review hearing officer shall conduct the

proceedings in an orderly and impartial manner to protect the interests

of both the Government and the individual.

(b) An individual who requests a certification review hearing shall

have the right to appear personally before the hearing officer; to

present evidence in his own behalf, through witnesses or by documents,

or by both; and be accompanied and represented at the hearing by

counsel of the individual's choosing and at the individual's own

expense.

(c) In conducting the proceedings, the certification review hearing

officer shall:

(1) Receive all information relating to the individual's fitness

for PAP certification through witnesses or documentation;

(2) Ensure that the individual is permitted to offer information in

his or her behalf; to call, examine, and cross-examine witnesses and

other persons who have made written or oral statements, except as

provided in paragraph (c)(3) of this section, and to present and

examine documentary evidence;

(3) Have the option to receive and consider oral or written

statements adverse to the individual without affording the individual

the opportunity to cross-examine the person making the statement in

either of the following circumstances:

er persons who have made written or oral statements, except as

provided in paragraph (c)(3) of this section, and to present and

examine documentary evidence;

(3) Have the option to receive and consider oral or written

statements adverse to the individual without affording the individual

the opportunity to cross-examine the person making the statement in

either of the following circumstances:

(i) The substance of the statement was contained in the

individual's personnel security file before the question as to the

individual's fitness for PAP certification arose, and the head of the

Federal agency supplying the statement certifies that the person who

furnished the information is a confidential informant who has been

engaged in obtaining intelligence information for the Government, and

that the disclosure of that person's identity would substantially harm

the national security; or

(ii) The substance of the statement was contained in the

individual's personnel security file before the question as to the

individual's fitness for PAP certification arose, and the Assistant

Secretary for Defense Programs or designee for that particular purpose

has determined, after considering information furnished by the

investigative agency concerning the reliability of the person and the

accuracy of the statement, that --

(A) The statement appears to be reliable and material;

(B) Failure of the hearing officer to receive and consider such

statement would substantially harm the national security; and

(C) The person who furnished the information cannot appear to

testify due to death or severe illness, or due to some other good cause

as determined only by the Assistant Secretary for Defense Programs;

nt, that --

(A) The statement appears to be reliable and material;

(B) Failure of the hearing officer to receive and consider such

statement would substantially harm the national security; and

(C) The person who furnished the information cannot appear to

testify due to death or severe illness, or due to some other good cause

as determined only by the Assistant Secretary for Defense Programs;

(4) Ensure that if the procedures in paragraph (c)(3) of this

section are used, the individual is given a description of the

information, which shall be as comprehensive and detailed as the

national security permits. In addition, if a statement is received

under paragraph (c)(3)(ii), the identity of the person making the

statement and the information to be considered shall be made available

to the individual. The hearing officer shall give appropriate

consideration to the fact that the individual did not have an

opportunity to cross-examine such person;

(5) Require the testimony of the individual and all witnesses be

given under oath or affirmation;

(6) Request that the Assistant Secretary for Defense Programs issue

subpoenas for witnesses to attend the hearing or for the production of

specific documents or other physical evidence; and

(7) Ensure that a transcript of the certification review

proceedings is made.

Sec. 711.15 Hearing officer's submission.

Not later than 30 working days after the conclusion of the hearing,

the certification review hearing officer shall forward written

findings, a supporting statement of reasons, and recommendations

regarding the individual's suitability for certification or

recertification in the PAP to the operations office manager. The

hearing officer's decision shall be accompanied by a copy of the record

of the proceedings.

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

view hearing officer shall forward written

findings, a supporting statement of reasons, and recommendations

regarding the individual's suitability for certification or

recertification in the PAP to the operations office manager. The

hearing officer's decision shall be accompanied by a copy of the record

of the proceedings.

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

(a) An individual who has been denied PAP certification or

recertification, or whose certification has been revoked, may appeal

the operations office manager's decision to the Assistant Secretary for

Defense Programs. The appeal must be received by the Assistant

Secretary for Defense

Programs no later than 20 working days after the individual receives

the operations office manager's decision.

(b) An individual who appeals an operations office manager's

decision to the Assistant Secretary for Defense Programs must submit

the appeal and a written supporting statement to the Assistant

Secretary for Defense Programs through the operations office manager

and the Deputy Assistant Secretary for Military Application and

Stockpile Management. The individual must also submit:

(1) A copy of the operations office manager's final decision and

any related documentation; and

(2) If a certification review hearing was conducted, a copy of the

hearing officer's findings and recommendations and the transcript or

record of the proceedings.

(c) Upon receipt of an individual's appeal and supporting

documents, the Assistant Secretary for Defense Programs shall review

all of the information and issue a written decision in the matter. The

decision of the Assistant Secretary for Defense Programs shall be

final.

s conducted, a copy of the

hearing officer's findings and recommendations and the transcript or

record of the proceedings.

(c) Upon receipt of an individual's appeal and supporting

documents, the Assistant Secretary for Defense Programs shall review

all of the information and issue a written decision in the matter. The

decision of the Assistant Secretary for Defense Programs shall be

final.

(d) If an individual does not appeal to the Assistant Secretary for

Defense Programs within the time specified in paragraph (a) of this

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

Subpart B--Medical Assessments for PAP Certification and

Recertification

General Provisions

Sec. 711.20 Applicability.

This subpart establishes standards and procedures for conducting

medical assessments of DOE and contractor employees in the PAP.

Sec. 711.21 Purpose and scope.

The standards and procedures set forth in this subpart are

necessary for DOE to:

(a) Identify the presence of any mental, emotional, or behavioral

characteristics or conditions that present or are likely to present an

unacceptable impairment in judgment, reliability, or fitness of an

individual to perform nuclear explosive duties safely;

(b) Facilitate the early diagnosis and treatment of disease or

impairment and to foster accommodation and rehabilitation of a disabled

individual with the intent of returning the individual to assigned

nuclear explosive duties;

(c) Determine what functions an employee may be able to perform and

to facilitate the proper placement of employees; and

l to perform nuclear explosive duties safely;

(b) Facilitate the early diagnosis and treatment of disease or

impairment and to foster accommodation and rehabilitation of a disabled

individual with the intent of returning the individual to assigned

nuclear explosive duties;

(c) Determine what functions an employee may be able to perform and

to facilitate the proper placement of employees; and

(d) Provide for continuing monitoring of the health status of

employees in order to facilitate early detection and correction of

adverse health effects, trends, or patterns.

Sec. 711.22 Definitions.

In addition to the definitions in subpart A of this part, the

following definitions apply to this subpart:

Designated physician means a licensed doctor of medicine or

osteopathy who has been nominated by the SOMD with the concurrence of

the Director, Office of Occupational Medicine and Medical Surveillance,

to provide professional expertise in the area of occupational medicine

as it relates to the PAP.

Designated psychologist means a licensed Ph.D. or Psy.D. clinical

psychologist who has been nominated by the SOMD with the concurrence of

the Director, Office of Occupational Medicine and Medical Surveillance,

to provide professional expertise in the area of psychological

assessment as it relates to the PAP.

Diagnostic and Statistical Manual for Mental Disorders means the

current version of the American Psychiatric Association's manual

containing definitions of psychiatric terms and diagnostic criteria of

mental disorders .

Director, Office of Occupational Medicine and Medical Surveillance,

means the chief occupational medical officer of the DOE with

responsibility for policy and quality assurance for DOE occupational

medical programs.

Drug abuse means use of an illegal drug or misuse of legal drugs.

Fitness for duty means that the physical and mental health of a PAP

individual is adequate for the performance of nuclear explosive duties

in a safe and reliable manner

veillance,

means the chief occupational medical officer of the DOE with

responsibility for policy and quality assurance for DOE occupational

medical programs.

Drug abuse means use of an illegal drug or misuse of legal drugs.

Fitness for duty means that the physical and mental health of a PAP

individual is adequate for the performance of nuclear explosive duties

in a safe and reliable manner.

Impairment means a decrease in functional capacity of a worker

caused by a physical, mental, emotional, substance abuse, or behavioral

disorder.

Job task analysis means a statement outlining the essential

functions of a job and the potential exposures and hazards of an

individual's specific job.

Medical assessment means an evaluation of a PAP individual's

present health status and health risk factors by means of:

(1) A historical review;

(2) The job task analysis;

(3) A physical examination;

(4) Appropriate laboratory tests and measurements; and

(5) Appropriate psychological and psychiatric evaluations.

Medical Review Officer (MRO) means a licensed doctor of medicine or

osteopathy who has knowledge of substance abuse disorders and

appropriate medical training to interpret drug test results. The MRO

may also be the designated physician and/or SOMD.

Semi-Structured Interview means an interview by a designated

psychologist who has the latitude to vary the focus and content of the

questions depending upon the interviewee's responses.

Responsibilities and Authorities

Sec. 711.30 Designated physician.

(a) The designated physician shall be qualified to provide

professional expertise in the area of occupational medicine as it

relates to the PAP. The designated physician may serve in other

capacities, including Medical Review Officer.

to vary the focus and content of the

questions depending upon the interviewee's responses.

Responsibilities and Authorities

Sec. 711.30 Designated physician.

(a) The designated physician shall be qualified to provide

professional expertise in the area of occupational medicine as it

relates to the PAP. The designated physician may serve in other

capacities, including Medical Review Officer.

(b) The designated physician shall:

(1) Be a physician who is a graduate of an accredited school of

medicine or osteopathy;

(2) Have a valid, unrestricted state license to practice medicine

in the state where PAP medical assessments occur;

(3) Have met the applicable PAP training requirements; and

(4) Be eligible for DOE access authorization to the worksite.

(c) The designated physician shall be responsible for the medical

assessments of PAP individuals, including determining which components

of the medical assessments may be performed by other qualified

personnel. Although a portion of the assessment may be performed by

another physician, physician's assistant, or nurse practitioner, the

designated physician remains responsible for:

(1) Supervising the evaluation process;

(2) Interpreting the results of evaluations;

(3) Documenting medical conditions that disqualify an individual or

that may in the future disqualify an individual from the PAP;

(4) Providing medical assessment information to the designated

psychologist to assist in determining psychological fitness;

(5) Determining the location and date of the next required medical

assessment, thereby establishing the period of certification; and

(6) Signing a recommendation for certification or recertification

of an individual.

in the future disqualify an individual from the PAP;

(4) Providing medical assessment information to the designated

psychologist to assist in determining psychological fitness;

(5) Determining the location and date of the next required medical

assessment, thereby establishing the period of certification; and

(6) Signing a recommendation for certification or recertification

of an individual.

(d) The designated physician shall immediately report to the SOMD

any of the following about himself or herself:

(1) Initiation of an adverse action by any state medical licensing

board or any other professional licensing board;

(2) Initiation of an adverse action by any Federal regulatory board

since the last designation;

(3) The withdrawal of the privilege to practice by any institution;

(4) Being named a defendant in any criminal proceedings (felony or

misdemeanor) since the last designation;

(5) Being evaluated or treated for alcohol use disorder or drug

dependency or abuse since the last designation; or

(6) Occurrence of a physical or mental health condition since the

last designation that might affect his or her ability to perform

professional duties.

Sec. 711.31 Designated psychologist.

(a) The designated psychologist shall report to the SOMD and shall

determine the psychological fitness of an individual to participate in

the PAP. The results of this evaluation shall be provided only to the

designated physician or the SOMD.

health condition since the

last designation that might affect his or her ability to perform

professional duties.

Sec. 711.31 Designated psychologist.

(a) The designated psychologist shall report to the SOMD and shall

determine the psychological fitness of an individual to participate in

the PAP. The results of this evaluation shall be provided only to the

designated physician or the SOMD.

(b) The designated psychologist shall:

(1) Hold a doctoral degree from a clinical psychology program that

included a 1-year clinical internship approved by the American

Psychological Association or an equivalent program;

(2) Have accumulated a minimum of 3 years postdoctoral clinical

experience with a major emphasis in psychological assessment;

(3) Have a valid, unrestricted state license to practice clinical

psychology in the state where PAP medical assessments occur;

(4) Have met the applicable PAP training requirements; and

(5) Be eligible for DOE access authorization to the worksite.

(c) The designated psychologist shall be responsible for the

performance of all psychological evaluations of PAP individuals, and

otherwise as directed by the SOMD. In addition, the designated

psychologist shall:

(1) Designate which components of the psychological evaluation may

be performed by other qualified personnel;

(2) Upon request of management, assess the psychological fitness of

personnel for PAP duties in specific work settings and recommend

referrals as indicated;

(3) Conduct and coordinate educational and training seminars,

workshops, and meetings to enhance PAP individual and supervisor

awareness of mental health issues;

(4) Establish regular personal workplace contact with supervisors

and workers to help them identify psychologically distressed PAP

individuals;

(5) Make referrals for psychiatric, psychological, substance abuse,

personal or family problems, and monitor the progress of individuals so

referred; and

shops, and meetings to enhance PAP individual and supervisor

awareness of mental health issues;

(4) Establish regular personal workplace contact with supervisors

and workers to help them identify psychologically distressed PAP

individuals;

(5) Make referrals for psychiatric, psychological, substance abuse,

personal or family problems, and monitor the progress of individuals so

referred; and

(6) Participate as a member of the hostage negotiations team as

required by the emergency management center.

(d) The designated psychologist shall immediately report to the

SOMD any of the following about himself or herself:

(1) Initiation of an adverse action by any state medical licensing

board or any other professional licensing board;

(2) Initiation of an adverse action by any Federal regulatory board

since the last designation;

(3) The withdrawal of the privilege to practice by any institution;

(4) Being named a defendant in any criminal proceeding (felony or

misdemeanor) since the last designation;

(5) Being evaluated or treated for alcohol or drug dependency or

abuse since the last designation; or

(6) Occurrence of a physical or mental health condition that might

affect his or her ability to perform professional duties since the last

designation.

Sec. 711.32 Site Occupational Medical Director (SOMD).

(a) The SOMD shall nominate a physician to serve as the designated

physician and a clinical psychologist to serve as the designated

psychologist. The nominations shall be sent through the appropriate

operations office to the Director, Office of Occupational Medicine and

Medical Surveillance. Each nomination shall describe the nominee's

relevant training, experience, and licensure, and shall include a

curriculum vitae and a copy of the nominee's current state or district

license.

al psychologist to serve as the designated

psychologist. The nominations shall be sent through the appropriate

operations office to the Director, Office of Occupational Medicine and

Medical Surveillance. Each nomination shall describe the nominee's

relevant training, experience, and licensure, and shall include a

curriculum vitae and a copy of the nominee's current state or district

license.

(b) The SOMD shall submit a redesignation report biennially through

the operations office to the Director, Office of Occupational Medicine

and Medical Surveillance. This report shall be submitted at least 60

days before the second anniversary of the initial designation or of the

last redesignation, whichever applies. The report shall include:

(1) A statement evaluating the performance of the designated

physician and designated psychologist during the previous designation

period;

(2) A summary of all PAP-relevant training, including postgraduate

education, that the designated physician and designated psychologist

has completed since the last designation; and

(3) A copy of the valid, unrestricted license of the designated

physician and designated psychologist.

(c) The SOMD shall submit, annually, to the Director, Office of

Occupational Medicine and Medical Surveillance, through the operations

office manager, a written report summarizing PAP medical activity

during the previous year. The SOMD shall comply with any DOE directives

specifying the form or contents of the annual report.

ed license of the designated

physician and designated psychologist.

(c) The SOMD shall submit, annually, to the Director, Office of

Occupational Medicine and Medical Surveillance, through the operations

office manager, a written report summarizing PAP medical activity

during the previous year. The SOMD shall comply with any DOE directives

specifying the form or contents of the annual report.

(d) The SOMD shall investigate any reports of problems regarding a

designated physician or designated psychologist, and the SOMD may

suspend either official from PAP-related duties. If the SOMD suspends

either official, the SOMD shall notify the Director, Office of

Occupational Medicine and Medical Surveillance, and provide supporting

documentation and reasons for the action.

Sec. 711.33 Director, Office of Occupational Medicine and Medical

Surveillance.

The Director, Office of Occupational Medicine and Medical

Surveillance, shall:

(a) Develop policies, standards, and guidance related to the

medical aspects of the PAP, including the psychological testing

inventory to be used;

(b) Review the qualifications of designated physicians and

designated psychologists, and concur or nonconcur in their designations

by sending a statement to the responsible program office and the

operations office, with an informational copy to the SOMD;

(c) Provide technical assistance on medical aspects of the PAP to

all elements of DOE and DOE contractors; and

sting

inventory to be used;

(b) Review the qualifications of designated physicians and

designated psychologists, and concur or nonconcur in their designations

by sending a statement to the responsible program office and the

operations office, with an informational copy to the SOMD;

(c) Provide technical assistance on medical aspects of the PAP to

all elements of DOE and DOE contractors; and

(d) Concur or nonconcur with the medical bases of decisions

rendered on appeals of PAP certification decisions.

Sec. 711.34 Operations office managers.

Operations office managers shall approve, upon the nomination of

the SOMD and concurrence of the Director, Office of Occupational

Medicine and Medical Surveillance, physicians and psychologists to

serve as designated physicians and designated psychologists.

Medical Assessment Process and Standards

Sec. 711.40 Medical standards for certification.

To be certified in the PAP, an individual shall be free of any

mental, emotional, or physical condition or behavior likely to result

in impaired ability to perform assigned duties in a safe and reliable

manner. The designated physician, with the assistance of the designated

psychologist, shall determine whether any of the following disqualify

an individual from performing nuclear explosive duties:

(a) Physical or medical disabilities such as visual acuity,

defective color vision, impaired hearing, musculoskeletal deformities,

and neuromuscular impairment;

(b) Mental disorders or behavioral problems as defined in the

Diagnostic and Statistical Manual of Mental Disorders;

(c) Past or present use of illegal drugs or the abuse of legal

drugs or other substances, as identified by self-reporting, or by

medical or psychological evaluation or testing;

(d) Alcohol use disorder;

(e) Past or present threat of suicide, homicide, or physical harm;

or

t;

(b) Mental disorders or behavioral problems as defined in the

Diagnostic and Statistical Manual of Mental Disorders;

(c) Past or present use of illegal drugs or the abuse of legal

drugs or other substances, as identified by self-reporting, or by

medical or psychological evaluation or testing;

(d) Alcohol use disorder;

(e) Past or present threat of suicide, homicide, or physical harm;

or

(f) Cardiovascular disease, endocrine disease, cerebrovascular or

other neurologic disease, or the use of drugs for the treatment of such

conditions that may adversely affect the judgment or ability of an

individual to perform assigned duties in a safe and reliable manner.

Sec. 711.41 Medical assessment process.

(a) The designated physician, under the supervision of the SOMD,

shall be responsible for the medical assessment of PAP individuals. In

carrying out this responsibility, the designated physician shall

integrate the medical evaluations, drug testing results, psychological

evaluations, any psychiatric evaluations, and any other relevant

information to determine an individual's overall medical qualification

for assigned duties.

(b) Employers shall provide a job task analysis for each PAP

individual to both the designated physician and the designated

psychologist before each medical assessment and psychological

evaluation. PAP medical assessments and psychological evaluations shall

not be performed if a job task analysis has not been provided.

ermine an individual's overall medical qualification

for assigned duties.

(b) Employers shall provide a job task analysis for each PAP

individual to both the designated physician and the designated

psychologist before each medical assessment and psychological

evaluation. PAP medical assessments and psychological evaluations shall

not be performed if a job task analysis has not been provided.

(c) The designated physician shall consider a PAP individual's

fitness for duty at the time of each medical contact, including:

(1) Medical assessments for initial certification, annual

recertification, and special evaluations for recertification following

temporary removal from the PAP;

(2) Intermediate evaluations, including job transfer evaluations,

evaluations upon self-referral, and referral by management;

(3) Routine medical contacts, including routine return-to-work

evaluations and occupational and nonoccupational health counseling

sessions; and

(4) A review of current, legal drug use.

(d) Psychological evaluation. (1) For the initial certification,

the psychological evaluation consists of a generally accepted, self-

reporting psychological inventory tool approved by the Director, Office

of Occupational Medicine and Medical Surveillance, and a semistructured

interview.

(2) For recertification, the psychological evaluation consists of a

semistructured interview.

(3) Every third year, the medical assessment for recertification

shall include a generally accepted self-reporting psychological

inventory tool approved by the Director, Office of Occupational

Medicine and Medical Surveillance.

(4) Additional psychological evaluations may be required by the

SOMD when needed to resolve PAP concerns.

(e) Following absences requiring return-to-work evaluations under

applicable DOE directives, the designated physician, with assistance

from the designated psychologist, shall determine whether a

psychological evaluation is necessary.

ce of Occupational

Medicine and Medical Surveillance.

(4) Additional psychological evaluations may be required by the

SOMD when needed to resolve PAP concerns.

(e) Following absences requiring return-to-work evaluations under

applicable DOE directives, the designated physician, with assistance

from the designated psychologist, shall determine whether a

psychological evaluation is necessary.

(f)(1) Except as provided in paragraph (f)(2) of this section, the

designated physician shall forward the completed medical assessment of

a PAP individual to the SOMD, who shall send a recommendation based on

the assessment simultaneously to the individual's PAP administrative

organization and to the PAP certifying official.

(2) If the designated physician determines that a currently

certified individual no longer meets the PAP standards, the designated

physician shall immediately inform the PAP certifying official and the

PAP individual's administrative organization, following up in writing

as appropriate.

(g) Only the designated physician, subject to informing the SOMD,

shall make a medical recommendation for return to work and work

accommodations for PAP individuals.

(h) The following documentation is required for routine use in the

PAP program after treatment of a PAP individual for any disqualifying

condition:

(1) A summary of the diagnosis, treatment, current status, and

prognosis to be furnished to the designated physician;

(2) The medical opinion of the designated physician advising the

individual's supervisor on whether the individual is able to return to

work in either a PAP or non-PAP capacity; and

(3) Any periodic monitoring plan approved by the designated

physician, the designated psychologist, and the SOMD, that is used to

evaluate the reliability of the employee.

Sec. 711.42 Medical assessment for drug abuse.

e medical opinion of the designated physician advising the

individual's supervisor on whether the individual is able to return to

work in either a PAP or non-PAP capacity; and

(3) Any periodic monitoring plan approved by the designated

physician, the designated psychologist, and the SOMD, that is used to

evaluate the reliability of the employee.

Sec. 711.42 Medical assessment for drug abuse.

(a) Except as otherwise provided by this section, a medical

assessment for illegal drug use by DOE employees shall be conducted

under DOE Order 3792.3, ``Drug-Free Federal Workplace Testing

Implementation Program.'' Copies of DOE Orders are available for

inspection in the DOE Freedom of Informaiton Reading Room, Washington,

DC.

(b) Except as otherwise provided by this section, a medical

assessment for illegal drug use by contractor employees shall be

conducted under 10 CFR part 707, ``Workplace Substance Abuse Programs

at DOE Sites.''

(c) In each case of drug abuse, the SOMD, in consultation with the

designated psychologist, shall evaluate the individual for evidence of

psychological impairment and make a recommendation to the PAP

certifying official as to the individual's reliability.

(d) After successfully completing an SOMD-approved drug

rehabilitation program, and subject to SOMD-directed unannounced tests

for illegal drugs and relevant counseling for 3 years, DOE may

reinstate an individual in the PAP based on the SOMD's follow-up

evaluation and recommendation.

Sec. 711.43 Evaluation of hallucinogen use.

If DOE determines that a PAP individual has used any hallucinogen,

the individual shall not be eligible for certification or

recertification unless:

(a) Five years have passed since the last use of the hallucinogen;

(b) A medical evaluation is performed to determine that the

individual is reliable; and

(c) The individual has a record of acceptable job performance and

observed behavior.

Sec. 711.44 Medical assessment for alcohol use disorder.

hallucinogen,

the individual shall not be eligible for certification or

recertification unless:

(a) Five years have passed since the last use of the hallucinogen;

(b) A medical evaluation is performed to determine that the

individual is reliable; and

(c) The individual has a record of acceptable job performance and

observed behavior.

Sec. 711.44 Medical assessment for alcohol use disorder.

(a) If alcohol abuse is suspected, an individual shall be examined

for evidence of alcohol use disorder. If the examination produces

evidence of alcohol use disorder, additional evaluation shall be

conducted, which may include psychological evaluation.

(b) Alcohol consumption is prohibited within an 8-hour period

preceding and during the performance of nuclear explosive duties. DOE

shall implement or require the contractor to implement procedures that

will ensure that persons called in to perform unscheduled work are fit

to perform the tasks assigned.

(c) Individuals in the PAP shall be tested at the work site if

there is an

indication of alcohol use in violation of the requirements of paragraph

(b) of this section.

(d) Tests for alcohol must be administered by a certified Breath

Alcohol Technician using an evidential-grade breath analysis device

that conforms to the Department of Transportation's (DOT) National

Highway Traffic Safety Administration (NHTSA) model specifications, and

the most recent ``Conforming Products List'' issued by NHTSA which are

available from the Office of Traffic Safety Programs, Washington, DC.

(e) An individual whose confirmatory breath alcohol test result is

at or above a blood alcohol concentration of 0.02 percent shall not be

allowed to perform nuclear explosive duties for a minimum of 24 hours.

(f) Individuals refusing to submit to a breath alcohol test shall

be immediately removed from nuclear explosive duties.

ilable from the Office of Traffic Safety Programs, Washington, DC.

(e) An individual whose confirmatory breath alcohol test result is

at or above a blood alcohol concentration of 0.02 percent shall not be

allowed to perform nuclear explosive duties for a minimum of 24 hours.

(f) Individuals refusing to submit to a breath alcohol test shall

be immediately removed from nuclear explosive duties.

(g) The SOMD, in conjunction with the designated psychologist,

shall evaluate each case of alcohol use disorder for evidence of

psychological impairment and provide the PAP certifying official a

recommendation as to the individual's reliability.

(h) After successfully completing an SOMD-approved alcohol

treatment program, DOE may reinstate an individual in the PAP based on

the SOMD's follow-up evaluation and recommendation.

Sec. 711.45 Maintenance of medical records.

(a) Medical records produced or used in the PAP certification

process shall be maintained according to established professional

standards.

(b) The medical records of PAP individuals shall be maintained in

accordance with the Privacy Act, 5 U.S.C.Sec. 552a, and DOE

implementing regulations in 10 CFR part 1008; the Department of Labor's

regulations on access to employee exposure and medical records, 29 CFR

1910.20; and applicable DOE orders and directives.

(c) The psychological record of a PAP individual shall be

considered a component of the medical record. The psychological record

shall --

(1) Contain any clinical reports, test protocols and data, notes of

employee contacts and correspondence, and other information pertaining

to an individual's contact with a psychologist;

(2) Be stored in a secure location in the custody of the designated

psychologist;

(3) Be kept separate from other medical record documents, with

access limited to the SOMD, the designated physician, the designated

psychologist, or other persons who are authorized by law or regulation

to have access; and

(4) Be retained indefinitely.

ertaining

to an individual's contact with a psychologist;

(2) Be stored in a secure location in the custody of the designated

psychologist;

(3) Be kept separate from other medical record documents, with

access limited to the SOMD, the designated physician, the designated

psychologist, or other persons who are authorized by law or regulation

to have access; and

(4) Be retained indefinitely.

(d) The records of alcohol and drug testing shall be maintained in

accordance with 42 CFR part 2, ``Confidentiality of Alcohol and Drug

Abuse Patient Records,'' and 10 CFR part 707, ``Workplace Substance

Abuse Programs at DOE Sites.''

[FR Doc. 97-14416 Filed 6-3-97; 8:45 am]

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