Editorial Note on Part 712
Editorial Note: Nomenclature changes to part 712 appear at 88 FR 41292, June 26, 2023.

§ 712.15 Management evaluation. ( a ) *Evaluation components.* An evaluation by the HRP management official is required before an individual can be considered for initial certification or recertification in the HRP. This evaluation must be based on a careful review of the results of the supervisory review, medical assessment, and drug and alcohol testing. If a safety or security concern is identified with respect to an HRP-certified individual, the HRP management official must take actions consistent with § 712.19(a).
( b ) *Drug testing.* All HRP candidates and HRP-certified individuals are subject to testing for the use of illegal drugs, as required by this part. Testing must be conducted in accordance with 10 CFR part 707, the workplace substance abuse program for DOE contractor employees, and DOE Order 343.1, “Federal Substantive Abuse Testing Program,” for DOE employees. The program must include an initial drug test, random drug tests at least once every 12 months from the previous test, and tests of HRP-certified individuals if they are involved in an incident, unsafe practice, occurrence, or based on reasonable suspicion. Failure to appear for unannounced testing within 2 hours of notification constitutes a refusal to submit to a test. Sites may establish a shorter time period between notification and testing but may not exceed the two-hour requirement. If an HRP-certified individual refuses to submit to a drug test or, based on a drug test, is determined to use illegal drugs, the supervisor must immediately remove the individual from HRP duties and take actions consistent with § 712.13(f).
( c ) *Alcohol testing.* All HRP candidates and HRP-certified individuals are subject to testing for the use of alcohol, as required by this part. The alcohol testing program must include, as a minimum, an initial alcohol test prior to performing HRP duties and random alcohol tests at least once every 12 months from the previous test, and tests of HRP-certified individuals if they are involved in an incident, unsafe practice, occurrence, or based on reasonable suspicion. The supervisor who has been informed that an HRP-certified individual's confirmatory breath alcohol test result is at or above an alcohol concentration of 0.02 percent shall send that individual home and not allow that individual to perform HRP duties for 24 hours, and take all appropriate administrative action consistent with § 712.13(f). ( 1 ) Breath alcohol testing must be conducted by a certified breath alcohol technician and conform to the DOT procedures (49 CFR part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, subparts J through N) for use of an evidential-grade breath analysis device approved for 0.02/0.04 cutoff levels, which conforms to the DOT model specifications and the most recent “Conforming Products List” issued by NHTSA.
( 2 ) An individual required to undergo DOT alcohol testing is subject to the regulations of the DOT. If such an individual's blood alcohol level exceeds DOT standards, the individual's employer may take appropriate disciplinary action.
( 3 ) The following constitutes a refusal to submit to a test and shall be considered as a positive alcohol concentration test of 0.02 percent, which requires the individual be sent home and not allowed to perform HRP duties for 24 hours: ( i ) Failure to appear for unannounced testing within 2 hours of notification (or established shorter time for the specific site);
( ii ) Failure to provide an adequate volume of breath in 2 attempts without a valid medical excuse; and
( iii ) Engaging in conduct that clearly obstructs the testing process, including failure to cooperate with reasonable instructions provided by the testing technician.
( d ) *Occurrence testing.* ( 1 ) When an HRP-certified individual is involved in, or associated with, an occurrence requiring immediate reporting to the DOE, the following procedures must be implemented: ( i ) Testing for the use of illegal drugs in accordance with the provisions of the DOE policies implementing Executive Order 12564, and 10 CFR part 707 or DOE Order 3792.3, which establish workplace substance abuse programs for contractor and DOE employees, respectively.
( ii ) Testing for use of alcohol in accordance with this section.
( 2 ) Testing must be performed as soon as possible after an occurrence that requires immediate notification or reporting.
( 3 ) The supervisor must immediately remove an HRP-certified individual from HRP duties if the individual refuses to undergo the testing required by this subsection.
( e ) *Testing for reasonable suspicion.* ( 1 ) If the behavior of an individual in an HRP position creates the basis for reasonable suspicion of the use of an illegal drug or alcohol, that individual must be tested if two or more supervisory or management officials, at least one of whom is in the direct chain of supervision of the individual or is the Designated Physician, the Designated Psychologist, or the SOMD, agree that such testing is appropriate.
( 2 ) Reasonable suspicion must be based on an articulable belief, drawn from facts and reasonable inferences from those particular facts that an HRP-certified individual is in possession of, or under the influence of, an illegal drug or alcohol. Such a belief may be based on, among other things: ( i ) Observable phenomena, such as direct observation of the use or possession of illegal drugs or alcohol, or the physical symptoms of being under the influence of drugs or alcohol;
( ii ) A pattern of abnormal conduct or erratic behavior;
( iii ) Information provided by a reliable and credible source that is independently corroborated; or
( iv ) Detection of alcohol odor on the breath.
( f ) *Counterintelligence evaluation.* HRP candidates and, when selected, HRP-certified individuals, must submit to and successfully complete a counterintelligence evaluation, which may include a polygraph examination in accordance with 10 CFR part 709, Polygraph Examination Regulations and any subsequent revisions to that regulation.