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

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.

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
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 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 § 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 § 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 § 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 § 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

§ 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

§ 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, § 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 § 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 §§ 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.
20368 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations

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

§ 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.

§ 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 § 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 § 710.50.

§ 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.

§ 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.

§ 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
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 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

§ 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.

§ 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, § 710.8 of this part.

§ 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 preemployment 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
20370 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations

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 nonPSAP 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.

§ 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 PSAPcleared 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.

§ 710.59 Management evaluation.

(a) Evaluation components. A

management evaluation based upon a

careful review of the results of the
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Rules and Regulations 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 PSAPcleared 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.

§ 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, § 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]

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