[Federal Register Volume 60, Number 79 (Tuesday, April 25, 1995)]
[Rules and Regulations]
[Pages 20366-20371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10157]




[[Page 20365]]

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Part VIII





Department of Energy





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10 CFR Part 710



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Criteria and Procedures for Determining Eligibility for Access to 
Classified Matter or Significant Quantities of Special Nuclear 
Material; Final Rule

Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules 
and Regulations 
[[Page 20366]] 

DEPARTMENT OF ENERGY

10 CFR Part 710

RIN 1992-AA13


Criteria and Procedures for Determining Eligibility for Access to 
Classified Matter or Significant Quantities of Special Nuclear Material

AGENCY: Office of Safeguards and Security, Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is amending its regulations 
regarding access to classified matter and special nuclear material 
which establish the Personnel Security Assurance Program (PSAP). The 
PSAP was created to assure the reliability of individuals in certain 
positions, referred to as PSAP positions for purposes of this rule. The 
Department now amends this rule to include references to the drug 
testing protocols used in the PSAP and to reflect the Government-wide 
requirements for a standard background investigation. This change will 
reduce the scope of the background investigation for the PSAP, and 
thereby reduce cost and intrusiveness.

EFFECTIVE DATE: May 25, 1995.

FOR FURTHER INFORMATION CONTACT: Lynn Gebrowsky, Personnel Security 
Policy Branch, Office of Safeguards and Security, Office of Security 
Affairs, Department of Energy, (301) 903-3200, or Stephen P. Smith, 
Office of the Assistant General Counsel for General Law, Office of the 
General Counsel, Department of Energy, (202) 586-8618.

SUPPLEMENTARY INFORMATION:

I. General

    A proposed rule to amend 10 CFR part 710, subpart B, by the 
addition of certain drug and alcohol testing provisions, was published 
in the Federal Register on March 8, 1991 (56 FR 10075). Comments 
received in response to that publication are discussed in this final 
rule.
    Four written comments were received on the proposed rule. Most of 
the comments concerned the provision in the proposed rule for alcohol 
testing in cases of occurrence or reasonable suspicion. This provision 
has been removed from the final rule pending a government-wide decision 
on the subject of alcohol testing. In consequence, none of the comments 
received in reference to alcohol testing will be addressed at this 
time.
    The detailed drug testing protocols put forward in the proposed 
rule have been removed as a consequence of the publication of 10 CFR 
part 707, ``Workplace Substance Abuse Programs at DOE Sites,'' (57 FR 
32652) which established those protocols for all drug testing conducted 
on contractor populations at sites operated under the authority of the 
Atomic Energy Act of 1954, as amended. The drug testing requirements 
set out in 10 CFR part 707 serve as the drug testing element for 
contractors in the PSAP. Drug testing procedures for Federal employees 
in the PSAP are found in Departmental directives.
    One commenter felt that the most recent body of case law in the 
area of drug and alcohol testing for occurrence and reasonable 
suspicion had not been examined carefully in its applicability to the 
PSAP. DOE responds that it is difficult to anticipate the development 
of the law in such a relatively new field as drug testing, but the 
relevant case law has been adequately taken into account. The judicial 
examination of the issues surrounding drug testing has increased 
greatly over the past 5 years, stimulated by the growing realization of 
the safety, security, and performance threats represented by employee 
drug use. Further growth accompanied the issuance of Executive Order 
12564 and the concomitant expansion of private sector testing programs.
    The threshold issues of constitutionality, with particular 
reference to the Fourth Amendment, have been thoroughly discussed by 
the courts. The cases now generally have moved on to matters of detail 
in the actual conduct of the tests, which have been determined to be 
constitutionally permissible under the proper circumstances. Throughout 
the time that this rule (and 10 CFR part 707, which now promulgates the 
drug testing procedures) has been under development, DOE has been in 
contact with other Federal agencies having a responsibility for 
oversight of drug testing procedures. The Department is confident that 
this rule, relying upon the provisions of 10 CFR part 707 and DOE 
policies implementing Executive Order 12564, will bear scrutiny under 
the presently existing case law.
    That commenter also expressed uneasiness over the evaluation of 
``applicants'' under the PSAP. No evaluation, other than that which 
might be understood by drug testing, is addressed in this rule. 
However, in the proposed rule of March 8, 1991, the issue was 
considered and the phrase ``tentatively selected applicants'' employed 
to narrow the requirement for evaluation from all applicants to those 
selected for the job but not yet performing the duties of the job.
    More specific and detailed comments are addressed below.

II. Comments Received and DOE Responses

A. Americans With Disabilities Act of 1990

    One commenter stressed that any assessments of individuals under 
the PSAP need to be consistent with the Americans with Disabilities Act 
(ADA), which took effect July 26, 1992. Under this act, reasonable 
accommodation must be afforded individuals with disabilities who are 
``otherwise qualified'' for the job. An individual with a disability is 
defined as one who has a physical or mental impairment that 
substantially limits one or more major life activities, a record of 
such impairment, or who is regarded as having such an impairment. In 
order to be considered ``otherwise qualified,'' a person must be able 
to meet all of a program's requirements in spite of his handicap. 
Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979).
    The overriding qualifications for a PSAP position are 
trustworthiness, reliability and sound judgment (see subpart A of part 
710). All evaluations under PSAP are directed toward that 
determination. The U.S. Court of Appeals for the Second Circuit has 
held that having poor judgment and exhibiting irresponsible behavior, 
while it may disqualify an applicant from a job, is not such a 
substantial limitation in a major life activity that it qualifies as a 
handicap under the Rehabilitation Act. Daley v. Koch, 892 F.2d 212 (2d 
Cir., 1989).
    It is certainly possible for an individual with a disability, 
either physical or mental, to hold a PSAP position, provided the 
individual meets the requirements of the program. Current illegal drug 
users and alcoholics who cannot safely perform their jobs are not 
protected by the ADA.

B. Guidelines of the Department of Health and Human Services

    It was suggested that the PSAP rule (and, by inference, the 
Workplace Substance Abuse rule, which provides the drug testing 
procedures for the PSAP) could not impose the ``Mandatory Guidelines 
for Federal Workplace Drug Testing Programs,'' issued by the Department 
of Health and Human Services (HHS), on contractors without further 
clarification from the DOE. This concern resulted from an apparent 
misinterpretation of references to the HHS Guidelines in the proposed 
rule. Those references were specific and [[Page 20367]] limited. The 
text in question is now covered by 10 CFR part 707; however, to respond 
fully to the commenter, the following is provided:
    In paragraph 710.59(e)(1) (superseded by Sec. 707.12(a) of 10 CFR 
part 707) there was a requirement that laboratories conducting drug 
testing for the PSAP use the cutoff levels in the HHS Guidelines for 
determining whether a test is negative or positive. The paragraph 
continued with the requirement that any laboratory utilized for PSAP 
drug testing be certified by the Department of Health and Human 
Services. Paragraph 710.59(e)(3) (superseded by Sec. 707.12(b)(2)) 
stated that the amount of urine collected in a specimen will be at 
least 60 milliliters, in accordance with the HHS Guidelines. This 
statement provided the rationale for the amount specified (i.e., it 
reflected the widely used and accepted standard). Under 10 CFR part 
707, the requirement for a specific volume is deleted and the site 
collection person is directed to ascertain that a sufficient amount of 
urine is collected for an initial test, a confirmatory test, and a 
retest. Paragraph 710.59(f)(1) (superseded by Sec. 707.13(a)) indicated 
that the gas chromatography/mass spectrometry method would be used in 
confirmatory tests and directed the reader to certain paragraphs in the 
HHS Guidelines for information on the procedure. Paragraph 710.59(f)(2) 
(superseded by Sec. 707.13(b)) directed the medical review officer to 
make any determinations of substance abuse in accordance with the 
criteria provided in the Medical Review Officer Manual issued by HHS.
    It was never intended that the HHS Guidelines be adopted in their 
entirety by contractors under the PSAP. Only those sections of the 
Mandatory Guidelines and the Medical Review Officer Manual referenced 
in 10 CFR part 707 apply to the PSAP. An inadvertent reference was made 
in Sec. 710.59(e)(3) to a ``permanent record book,'' which reflects an 
HHS requirement. This reference has been deleted, as the paragraph was 
superseded by the provisions of 10 CFR part 707, which replaces the 
requirement for a permanent record book with the use of a multi-part 
specimen chain of custody form.

C. Drug Testing

    Two commenters took exception to the requirement in paragraph 
710.59(b) that employees who have not undergone a random drug test for 
a given year at the time of that year's medical examination be tested 
for the use of illegal drugs during the medical examination. It was 
observed that, under the procedures used in certain facilities, this 
would prevent the test from being unannounced. The intent of the 
statement was to offer a method of assuring that all individuals in the 
PSAP were tested annually. There are any number of mechanisms through 
which the testing can be conducted on an unannounced, random basis, 
with every individual in the population being tested at least annually. 
The sentence is therefore removed and the precise mechanism of testing 
administration left to the contractor, with the stipulation that any 
method used result in random, unannounced, annual tests.

D. Training

    One commenter felt that the supervisor training referred to in the 
preamble to the proposed rule implied that training would be 
incorporated as a requirement in the final rule without due opportunity 
for public comment. This was never intended. The reference to training 
was solely to provide information to contractors on the assistance 
available through the DOE for implementation of the PSAP. This final 
rule contains no training requirements.

III. Changes From Proposed Rule

    In addition to the removal of alcohol testing requirements and 
those drug testing protocols now found in 10 CFR part 707, there has 
been a revision in the security requirements, based on recent personnel 
security research findings and on comments from within the Department 
of Energy. Specifically, in Sec. 710.60(c), the investigative 
requirement is now a single-scope background investigation, the 
standard used by the Department for the granting of a Q access 
authorization. In keeping with that standard, Sec. 710.60(e) now 
requires a periodic reinvestigation in accordance with those procedures 
used to maintain a Q access authorization. Paragraph 710.60(d) is 
changed to eliminate the annual national agency check (NAC) and to 
clarify that the yearly update of the SF-86 is for Part II of that form 
only. The strength of the PSAP is in its continuing evaluation of 
covered individuals, and while its investigative elements are 
important, it is felt that there is little benefit gained by a 15-year 
scope investigation and annual NAC, relative to the cost incurred.
    In Sec. 710.54, Definitions, the definition for ``drug 
certification'' has been deleted, as this administrative instrument is 
not a form or procedure of the PSAP.
    A non-substantive change has been made to Secs. 710.50(a) and 
710.55, regarding the positions covered by the Personnel Security 
Assurance Program. The second category of positions in each of those 
paragraphs has been revised to refer to positions ``which afford 
unescorted access to the control areas of a nuclear material production 
reactor,'' instead of positions ``identified as nuclear material 
production reactor operators.'' This change makes the second category 
of covered positions grammatically parallel with the first category. 
The Department does not intend any change in the scope of the second 
category of covered positions.

IV. Procedural Requirements

A. Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, today's action was not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs.

B. Regulatory Flexibility Act

    In accordance with section 605(b) of the Regulatory Flexibility 
Act, 5 U.S.C. 601, et seq., DOE finds that sections 603 and 604 of the 
said Act do not apply to this rule because, if promulgated, the rule 
will affect only DOE contractors operating Government-owned or leased 
sites and their subcontractors, and will not have significant economic 
impact on a substantial number of small entities.

C. National Environmental Policy Act

    There is no impact on the environment under today's rule. 
Accordingly, preparation of neither an environmental assessment nor an 
environmental impact statement is required.

D. Paperwork Reduction Act

    Today's rule has been reviewed in accordance with the Paperwork 
Reduction Act and has been determined to contain no collection of 
information requirements other than those already approved under OMB 
Control Number 1910-1800.

E. Federalism Effects

    The principal impact of today's rule will be on government 
contractors and their employees. The rule is unlikely to have a 
substantial direct effect on the States, the relationship between the 
States and Federal government, or the distribution of power and 
responsibilities among various levels of government. No Federalism 
assessment under E.O. 12612 is required. [[Page 20368]] 

F. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs each agency to adhere 
to certain requirements in promulgating new regulations. These 
requirements, set forth in sections 2(a) and 2(b)(2), include 
eliminating drafting errors and needless ambiguity, drafting the 
regulations to minimize litigation, providing clear and certain legal 
standards for affected legal conduct, and promoting simplification and 
burden reduction. Agencies are also instructed to make every reasonable 
effort to ensure that regulations define key terms and are clear on 
such matters as exhaustion of administrative remedies and preemption. 
The Department certified that today's regulatory action meets the 
requirements of sections 2(a) and 2(b)(2) of Executive Order 12778.

List of Subjects in 10 CFR Part 710

    Administrative practice and procedure, classified information, 
government contracts, government employees, nuclear materials.
Kenneth E. Baker,
Acting Director, Office of Nonproliferation and National Security.

    For the reasons set forth in the preamble, part 710 of title 10 of 
the Code of Federal Regulations is amended as set forth below.

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

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

    Authority: Sec. 145, 68 Stat. 942 (42 U.S.C. 2165) and sec. 161, 
68 Stat. 948 (42 U.S.C. 2201); E.O. 10450, 3 CFR 1949-1953 Comp., p. 
936, as amended; E.O. 10865, 3 CFR 1959-1963 Comp., p. 398, as 
amended, 3 CFR Chap. IV; sec. 104(c), 38 Stat. 1237 (42 U.S.C. 
5814); sec. 105(a), 88 Stat. 1238 (42 U.S.C. 5815); secs. 641, 644, 
646, 91 Stat. 598, 599 (42 U.S.C. 7251, 7254, and 7256).

    2. Subpart B of part 710 is revised to read as set forth below:

Subpart B--Criteria and Procedure for Establishment of the 
Personnel Security Assurance Program and Determinations of an 
Individual's Eligibility for Access to a Personnel Security 
Assurance Program Position

General Provisions

710.50  Purpose.
710.51  Scope.
710.52  References.
710.53  Policy.
710.54  Definitions.

Procedures

710.55  Designation of PSAP positions.
710.56  Program process.
710.57  Supervisory review.
710.58  Medical assessment.
710.59  Management evaluation.
710.60  DOE security review and clearance determination.

Subpart B--Criteria and Procedures for Establishment of the 
Personnel Security Assurance Program and Determinations of an 
Individual's Eligibility for Access to a Personnel Security 
Assurance Program Position

General Provisions


Sec. 710.50  Purpose.

    (a) This subpart establishes the policies and procedures for 
implementing the Department of Energy (DOE) Personnel Security 
Assurance Program (PSAP) for individuals in positions:
    (1) Which afford direct access to or have direct responsibility for 
transportation or protection of Category I quantities of special 
nuclear materials (SNM);
    (2) Which afford unescorted access to the control areas of a 
nuclear material production reactor; or
    (3) With the potential for causing unacceptable damage to national 
security.
    (b) The DOE Personnel Security Assurance Program is designed to 
establish the procedures for DOE and DOE contractors to utilize in the 
selection and continuing evaluation of individuals for assignment to 
positions described by paragraph (a) of this section. Individuals 
selected for assignment to such positions must be granted access 
authorization in accordance with the procedures and requirements set 
forth in subparts A and B of this part.


Sec. 710.51  Scope.

    The criteria and procedures establishing the Personnel Security 
Assurance Program shall apply to:
    (a) Those employees of, and applicants for employment with, DOE who 
either occupy or make application for PSAP positions, as described by 
paragraph (a) of Sec. 710.50.
    (b) Those employees of, and applicants for employment with, 
contractors and agents of the DOE who either occupy or make application 
for PSAP positions, as described by paragraph (a) of Sec. 710.50.


Sec. 710.52  References.

    (a) Atomic Energy Act of 1954, as amended, section 11, 
``Definitions''; section 141, ``Policy''; section 143, ``Department of 
Defense Participation''; section 145, ``Restrictions''; section 161 b., 
``General Provisions''; which provide statutory authority for 
establishing and implementing a DOE security program for controlling 
access to Restricted Data and special nuclear material. Copies of 
selected provisions appear as appendix A to subpart A of this part.
    (b) Executive Orders 10450, April 29, 1953, ``Security Requirements 
for Government Employment,'' 10865, February 20, 1960, ``Safeguarding 
Classified Information Within Industry,'' and 12564, September 15, 
1986, ``Drug-Free Federal Workplace,'' all as amended.
    (c) 10 CFR part 707, ``Workplace Substance Abuse Programs at DOE 
Sites,'' which requires DOE contractors to establish workplace 
substance abuse prevention programs, including urine drug testing for 
individuals who occupy sensitive positions such as those requiring a 
PSAP access authorization.
    (d) Implementing directives (DOE Orders) which provide Departmental 
guidance on the PSAP and related areas are available from the U.S. 
Department of Energy, Washington, DC 20585, Attention: Directives 
Distribution.


Sec. 710.53  Policy.

    The protection of certain of the DOE's security interests, with the 
potential, if compromised, of causing unacceptable damage to the 
national security requires the implementation of a program designed to 
assure that individuals occupying positions affording access to certain 
material, facilities, and programs meet the highest standards of 
reliability. This objective is accomplished under this subpart through 
a system of continuous evaluation which identifies those individuals 
whose judgment may be impaired by physical and/or emotional disorders, 
substance abuse, or the use of alcohol habitually to excess. This 
process will reduce the risk resulting from the potential threat 
represented by such employees to an acceptable level. The determination 
to grant initially and to continue annually the access authorization to 
a PSAP position is based upon a DOE security assessment of any 
information of security concern developed in the course of an initial 
and annual security review process.


Sec. 710.54  Definitions.

    As used in this part:
    Contractor means the contractor and subcontractors at all tiers.
    Direct access means access to Category I quantities of SNM which 
would permit an individual to remove, divert, or misuse that material 
in spite [[Page 20369]] of any controls that have been established to 
prevent such unauthorized actions.
    Illegal drugs means a controlled substance included in Schedules I, 
II, III, IV, or V, as defined by 21 U.S.C. 802(6), the possession of 
which is unlawful under chapter 13 of that title. The term ``illegal 
drugs'' 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.
    Management official means an individual designated by the DOE or a 
DOE contractor, as appropriate, who has programmatic responsibility for 
PSAP positions.
    Occurrence means any event or incident that is a deviation from the 
planned or expected behavior or course of events in connection with any 
Department of Energy or Department of Energy-controlled operation, if 
the deviation has environmental, public health and safety, or national 
security protection significance. Incidents having such significance 
include the following, or incidents of a similar nature:
    (1) Injury or fatality to any person involving actions of a 
Department of Energy contractor employee.
    (2) Involvement of nuclear explosives under Department of Energy 
jurisdiction which results in an explosion, fire, the spread of 
radioactive material, personal injury or death, or significant damage 
to property.
    (3) Accidental release of pollutants which results or could result 
in a significant effect on the public or environment.
    (4) Accidental release of radioactive material above regulatory 
limits.
    PSAP Approving Official means a senior DOE official with direct 
personnel security responsibilities appointed by an operations office 
manager to review all relevant information, including DOE F 5631.35, 
``PSAP Management, Medical, and Security Report'' as part of the DOE 
security review process, and who is responsible for granting or 
continuing the PSAP access authorization, or determining that an 
individual be processed under the provisions of subpart A of this part.
    PSAP position means a position that affords direct access to or has 
direct responsibility for transportation or protection of Category I 
quantities of SNM, affords unescorted access to nuclear material 
production reactor control areas, or with the potential to cause 
unacceptable damage to national security.
    Reasonable suspicion means a suspicion based on an articulable 
belief that an employee uses illegal drugs, drawn from particularized 
facts and reasonable inferences from those facts, as detailed further 
in part 707 of this chapter.
    Security concern means the presence of information, regarding an 
individual applying for or holding a PSAP position, that may be 
considered derogatory under the criteria in subpart A of this part.
    Selecting official means the management official responsible for 
making the final employment decision regarding an individual seeking a 
PSAP position.
    Site occupational Medical Director means a physician responsible 
for the overall direction and operation of the occupational medical 
program at a particular site.
    Supervisor means an individual who has direct oversight and 
responsibility for a person holding a PSAP position.
    Unacceptable damage means an incident that could result in a 
nuclear explosive detonation, a major environmental release from a 
nuclear material production reactor, or an interruption of nuclear 
weapons production with a significant impact on national security.

Procedures


Sec. 710.55  Designation of PSAP positions.

    PSAP positions shall be designated by the cognizant Operations 
Office Manager in accordance with the following criteria:
    (a) Positions that afford direct access to Category I quantities of 
SNM or have direct responsibility for transportation or protection of 
Category I quantities of SNM.
    (b) Positions that afford direct access to the control areas of a 
nuclear material production reactor.
    (c) Positions with the potential for causing unacceptable damage to 
national security which are not included in paragraph (a) or (b) of 
this section, and are designated by the Director, Office of Safeguards 
and Security, DOE.


Sec. 710.56  Program process.

    (a) Individuals selected for assignment to PSAP positions must be 
granted a PSAP access authorization in accordance with the procedures 
and requirements set forth in this subpart.
    (b) The PSAP involves four components: Supervisory review: Medical 
assessment; management evaluation; and security determination. A DOE 
determination to grant initially and to continue annually an 
individual's PSAP access authorization is based upon a DOE security 
assessment of any information of security concern developed in the 
course of the supervisory review, medical assessment, management 
evaluation, and security review.
    (c) DOE shall make its decision as to a PSAP access authorization 
in accordance with the criteria in subpart A, Sec. 710.8 of this part.


Sec. 710.57  Supervisory review.

    (a) The supervisory review shall be performed on all applicants 
tentatively selected for PSAP positions, transferees to PSAP positions, 
individuals occupying PSAP positions but not yet holding a PSAP access 
authorization, and PSAP-cleared employees.
    (b) The initial SF-86, OMB Control No. 3206.007, ``Questionnaire 
for Sensitive Positions'' of an applicant tentatively selected for a 
PSAP position and an annual update of the ``Questionnaire for Sensitive 
Positions,'' Part II, of each incumbent in a PSAP position shall be 
completed and forwarded to the appropriate PSAP Approving Official.
    (c) Before being selected for a PSAP position, any tentatively 
selected applicant must undergo a pre-employment suitability 
determination as defined by 48 CFR 970.2201. For DOE employees, this 
pre-employment check must comply with the requirements established by 
the Office of Personnel Management in part 731 of title 5, Code of 
Federal Regulations. For contractor employees, this pre-employment 
check must comply with the requirements established by the DOE in 
section 970.2201(b)(1)(ii) of title 48.
    (d) Each applicant tentatively selected for a PSAP position and 
each individual occupying a PSAP position but not a yet holding a PSAP 
access authorization shall execute the appropriate PSAP releases, 
acknowledgements, and waivers. The request for a PSAP access 
authorization shall not be further processed until these documents are 
completed. Failure of an individual, occupying a PSAP position but not 
yet holding a PSAP access authorization, to complete these documents 
may prevent DOE from reaching an affirmative finding required for 
granting or continuing PSAP access authorization. An effort shall be 
made to reassign that individual to a position not requiring a PSAP 
access authorization. For purposes of this section and all sections of 
this rule that relate to reassignment from PSAP duties, any Federal 
employee will be immediately removed from PSAP duties. The affected 
employee's supervisor may reassign the [[Page 20370]] employee or 
realign the employee's current duties. If these actions are not 
feasible, the supervisor must contact the appropriate servicing 
personnel office for guidance.
    (e) Applicants tentatively selected for PSAP positions and each 
individual occupying a PSAP position, but not yet holding a PSAP access 
authorization, shall undergo testing for the use of illegal drugs in 
accordance with the provisions of the DOE policies implementing 
Executive Order 12564, or Part 707 of this chapter, which establish 
workplace substance abuse programs for DOE and contractor employees 
respectively. A determination of the use of illegal drugs, based on a 
drug test, shall result in termination of consideration for the PSAP 
access authorization. An employee who has been determined to have used 
illegal drugs, based on a drug test, shall be immediately reassigned 
from the PSAP duties and processed under the provisions of Subpart A of 
this part.
    (f) The supervisor (or selecting official) shall report any 
security concerns, resulting from his or her review, to the appropriate 
management official.
    (g) Annual review. Each PSAP-cleared employee shall have an annual 
PSAP review conducted by the supervisor during which the supervisor 
shall evaluate information relevant to security. The supervisor shall 
report any security concerns, resulting from his or her review, to the 
appropriate management official.
    (h) Recognition of security concerns and unusual Conduct. In order 
to facilitate early recognition of an individual who represents a 
possible security concern, individuals who, in the judgment of the 
responsible supervisor, exhibit unusual conduct shall be referred to 
the site Occupational Medical Director, who may arrange for the PSAP-
cleared employee to be examined by the appropriate medical staff. 
Information indicating a possible security concern shall be reported 
immediately to the appropriate management official and PSAP Approving 
Official.
    (i) Temporary reassignment to non-PSAP duties. Where an individual 
has demonstrated a possible security concern or a condition which may 
temporarily affect his or her reliability, the individual, with the 
recommendation of the site Occupational Medical Director or the PSAP 
Approving Official, may be temporarily reassigned to non-PSAP duties. 
In the event that a PSAP-cleared employee is temporarily reassigned to 
non-PSAP duties, the supervisor, jointly with the site Occupational 
Medical Director and/or the PSAP Approving Official, as appropriate, 
may determine the temporary restrictions to be placed on the employee. 
The PSAP Approving Official shall be notified immediately upon the 
decision to temporarily reassign the employee to non-PSAP duties and 
the reason for such action, and upon the decision to reinstate such 
employee. If the reason for the temporary reassignment was based upon a 
security concern, the PSAP Approving Official must approve the request 
for reinstatement.


Sec. 710.58  Medical assessment.

    (a) The medical examination. The purpose of the PSAP medical 
examination is to ensure that an applicant tentatively selected for, or 
incumbent in, a PSAP position does not represent a security concern or 
have a condition which may prevent the individual from performing PSAP 
duties in a reliable and safe manner. The examination shall include an 
evaluation to determine the presence of any physical or mental 
condition that causes or may cause a significant defect in the judgment 
or reliability of the individual, including that which may result from 
the use of illegal drugs or the use of alcohol habitually to excess.
    (b) When performed. The medical assessment is performed initially 
upon applicants tentatively selected for PSAP positions and employees 
occupying PSAP positions who have not yet received a PSAP access 
authorization. The medical assessment shall be performed annually, or 
more often as may be required by the site Occupational Medical 
Director, for PSAP-cleared employees.
    (c) Contents of medical assessment. The medical assessment shall 
include: A comprehensive medical examination; an examination for use of 
alcohol habitually to excess; a psychological assessment and/or 
psychiatric evaluation as provided for in any applicable DOE medical 
standards, and as permitted by Federal regulations; and an examination 
for the cause of any reported unusual conduct.
    (d) Examination for use of alcohol habitually to excess. The use of 
alcohol habitually to excess represents a potential threat to national 
security and is inconsistent with access to a PSAP position. 
Accordingly, the medical assessment shall include:
    (1) Diagnosis. Employees in, or applicants tentatively selected 
for, a PSAP position shall be evaluated for the use of alcohol 
habitually to excess. Those employees diagnosed currently to use 
alcohol habitually to excess shall be temporarily reassigned to non-
PSAP duties and the PSAP Approving Official shall be notified 
immediately.
    (2) Rehabilitation. Individuals reinstated to PSAP duties following 
treatment leading to rehabilitation from the use of alcohol habitually 
to excess shall be required to undergo evaluation as prescribed by the 
site Occupational Medical Director to ensure continued rehabilitation. 
Such evaluation shall be consistent with appropriate Departmental 
substance abuse programs.
    (e) Examination for the cause of reported unusual conduct. Upon 
referral of a PSAP-cleared employee by a supervisor for observed 
unusual conduct, the site Occupational Medical Director may arrange for 
the employee to be examined by appropriate specialists.
    (f) Report of occupational Medical Director. Upon completion of the 
medical assessment, the site Occupational Medical Director shall report 
any security concerns resulting from the medical assessment to the 
appropriate management official.
    (g) Temporary restrictions on a PSAP position. In the event that a 
condition or circumstance develops that may affect the judgment or 
reliability of a PSAP-cleared employee, the site Occupational Medical 
Director may recommend restrictions. The site Occupational Medical 
Director shall report these restrictions immediately, in writing, to 
the appropriate management official who shall immediately notify the 
appropriate PSAP Approving Official. Removal of restrictions requires 
notification in writing to both the management official and the PSAP 
Approving Official by the site Occupational Medical Director.
    (h) Sick leave from a PSAP position. PSAP-cleared employees who 
have been on sick leave for five or more consecutive work days are 
required to report in person to the site Occupational Medical Director 
before being allowed to return to normal duties. The site Occupational 
Medical Director shall provide a recommendation to the appropriate 
management official regarding the employee's return to work. A PSAP-
cleared employee may in certain circumstances also be required to 
report to the site Occupational Medical Director for written 
recommendation to return to normal duties after any period of sick 
leave.


Sec. 710.59  Management evaluation.

    (a) Evaluation components. A management evaluation based upon a 
careful review of the results of the [[Page 20371]] supervisory review, 
medical assessment, and drug testing of an individual in, or an 
applicant tentatively selected for, a PSAP position is required before 
that individual can be considered for an initial granting or the 
continuance of a PSAP access authorization. The appropriate manager of 
an organization having PSAP positions (management official) shall 
evaluate the information in these reports and forward his or her 
recommendation, including any security concern, to the PSAP Approving 
Official.
    (b) Drug testing component. Drug testing for the use of illegal 
drugs, as required by the PSAP, shall be established to test all 
individuals in, or applicants tentatively selected for, PSAP positions. 
Testing shall be conducted in accordance with the DOE policies 
implementing Executive Order 12564, or part 707 of this chapter, which 
establish workplace substance abuse programs for DOE and contractor 
employees respectively. The program shall include unannounced annual 
drug testing and testing for occurrence or reasonable suspicion for all 
PSAP-cleared individuals. A PSAP-cleared individual who has been 
determined to have used illegal drugs based on a drug test shall be 
reassigned immediately to non-PSAP duties, and the PSAP Approving 
Official shall be notified immediately.
    (c) Occurrence or reasonable suspicion testing component. When a 
PSAP-cleared employee is involved in or associated with an occurrence 
requiring notification to the DOE or whose behavior creates the basis 
for a reasonable suspicion of substance abuse, the employee shall be 
tested for the use of illegal drugs. Drug testing shall be conducted in 
accordance with the provisions of the DOE policies implementing 
Executive Order 12564, or part 707 of this chapter, which establish 
workplace substance abuse programs for DOE and contractor employees 
respectively.
    (d) Rehabilitation. Individuals reinstated to PSAP duties following 
treatment leading to rehabilitation from the use of illegal drugs shall 
be required to undergo evaluation and testing as prescribed in DOE 
drug-free workplace and substance abuse policies and by the site 
Occupational Medical Director or other designated official, as 
appropriate, in order to ensure continued rehabilitation.
    (e) Corporate policy. Nothing in this subpart is intended to 
interfere with or prohibit a contractor of the Department from 
conducting medical and other evaluations, including testing for the use 
of illegal drugs as a matter of corporate policy, so long as such 
policy is at least as effective as the requirements and procedures of 
this subpart.


Sec. 710.60  DOE security review and clearance determination.

    (a) When performed. The final component of the PSAP process is a 
security review and clearance determination performed by the PSAP 
Approving Official upon receipt of the management evaluation and 
recommendation.
    (b) The criteria. The PSAP access authorization and adjudication 
shall be conducted in accordance with the criteria and procedures 
contained in relevant sections of this part.
    (c) Review for initial PSAP access authorization. An initial PSAP 
access authorization requires the applicant or employee to have a DOE Q 
access authorization, based upon a background investigation. The 
adjudication and determination for a PSAP access authorization shall be 
based upon a review of security information, including the results of 
the background investigation and the information provided by management 
and medical sources.
    (d) Annual PSAP access authorization continuance. Once an employee 
has received the PSAP access authorization, he or she shall thereafter 
undergo an annual security evaluation by the PSAP Approving Official. 
The evaluation shall include a review of the individual's DOE personnel 
security file, and an updated SF-86, OMB Control No. 3206-007, 
``Questionnaire for Sensitive Positions,'' Part II. The determination 
to continue the PSAP access authorization shall be based upon a review 
and any necessary adjudication of the information resulting from the 
annual security evaluation, and the information provided by management 
and medical sources, in accordance with the criteria and procedures 
contained in relevant sections of this part.
    (e) Periodic reinvestigation. The PSAP-cleared employee shall 
undergo periodic reinvestigation as required to maintain a Q access 
authorization. The determination to continue the PSAP access 
authorization shall be based upon a review of security information, 
including the results of the limited background investigation and the 
information provided by management and medical sources.
    (f) Processing under 10 CFR part 710, subpart A. Any matters of 
security concern raised to the attention of the PSAP Approving 
Official, such as confirmed use of illegal drugs or use of alcohol 
habitually to excess, shall be evaluated in accordance with the 
criteria under subpart A, Sec. 710.8 of this part. Any administrative 
review under the PSAP shall be conducted in accordance with the 
provisions and procedures in subpart A of this part.

[FR Doc. 95-10157 Filed 4-24-95; 8:45 am]
BILLING CODE 6450-01-P