[Federal Register Volume 83, Number 81 (Thursday, April 26, 2018)]
[Rules and Regulations]
[Pages 18195-18208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08697]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 83, No. 81 / Thursday, April 26, 2018 / Rules
and Regulations
[[Page 18195]]
DEPARTMENT OF ENERGY
10 CFR Part 712
RIN 1992-AA44
Human Reliability Program
AGENCY: Department of Energy (DOE).
ACTION: Final rule.
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SUMMARY: DOE is amending its regulation concerning the Human
Reliability Program (HRP). This regulation provides the policies and
procedures to ensure that individuals who occupy positions affording
unescorted access to certain nuclear materials, nuclear explosive
devices, facilities and programs meet the highest standards of
reliability and physical and mental suitability. The revisions include
some clarification of the procedures and burden of proof applicable in
certification review hearings, the addition and modification of certain
definitions, and a clear statement that a security concern can be
reviewed pursuant to the HRP regulation in addition to the DOE
regulations for determining eligibility for access to classified matter
or special nuclear material. These revisions are intended to provide
better guidance to HRP-certified individuals and to ensure consistency
in HRP decision making.
DATES: This rule is effective July 25, 2018.
FOR FURTHER INFORMATION CONTACT: Regina Cano, Office of Corporate
Security Strategy, Analysis and Special Operations, (202) 586-7079,
[email protected]; Pamela Arias-Ortega, National Nuclear Security
Administration, Office of the General Counsel, (505) 845-4441,
[email protected]; or Christina Pak or Matt Rotman,
Office of the General Counsel, (202) 586-4114, [email protected]
(Ms. Pak) or (202) 586-4753, [email protected] (Mr. Rotman).
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of Comments and Responses
III. Description of Changes
IV. Regulatory Review and Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
B. Review Under Executive Orders 13771 and 13777
C. Review Under the National Environmental Policy Act
D. Review Under the Regulatory Flexibility Act
E. Review Under the Paperwork Reduction Act
F. Review Under the Unfunded Mandates Reform Act of 1995
G. Review Under the Treasury and Government Appropriations Act,
1995
H. Review Under Executive Order 13132
I. Review Under Executive Order 12988
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Congressional Notification
V. Approval by the Office of the Secretary
I. Background
Pursuant to the Atomic Energy Act of 1954, as amended (the AEA),
the DOE owns and leases defense nuclear and other facilities in various
locations in the United States. These facilities are operated by
contractors with DOE oversight or are operated by DOE. These facilities
are involved in (among other activities) researching, testing,
producing, disassembling, or transporting nuclear materials. Compromise
of these DOE facilities could severely damage national security. To
guard against such compromise, DOE established the Human Reliability
Program (HRP). The HRP is designed to ensure that individuals who
occupy positions affording unescorted access to certain nuclear
materials, facilities and programs meet the highest standards of
reliability as well as physical and mental suitability, through a
system of continuous evaluation of those individuals. The purpose of
this continuous evaluation is to identify in a timely manner
individuals whose judgment may be impaired by physical or mental/
personality disorders; the use of illegal drugs or the abuse of legal
drugs or other substances; the abuse of alcohol; or any other condition
or circumstance that may represent a reliability, safety or security
concern. If any of these conditions or circumstances is identified, the
HRP provides for an administrative process, including the opportunity
for a certification review hearing that results in either the
revocation or reinstatement of the individual's HRP certification.
The part 712 regulation has not been comprehensively updated since
it was promulgated in 2004. Two technical amendments to the regulation
were made in 2011 and 2013. In 2011, the part 712 regulation was
amended to designate the appropriate Undersecretary as the person with
the authority to issue a final written decision to recertify or revoke
the certification of an individual in the HRP. 76 FR 12271 (Mar. 7,
2011). In 2013, the part 712 regulation was amended to eliminate
references to obsolete provisions and to reflect organizational changes
within the DOE. 78 FR 56132 (Sep. 12, 2013).
In the years since the HRP regulation was first promulgated, it has
become apparent that certain additional updates are necessary in the
sections pertaining to security concerns and the process related to
certification review hearings. On June 22, 2017, DOE issued a notice of
proposed rulemaking (NOPR) to propose the updating of part 712 (82 FR
28412). The NOPR proposed amending the existing rule to: (1) Identify
the evidentiary burden applicable to an individual requesting a
certification review hearing; (2) clarify that a security concern is
reviewable under HRP separate from a review pursuant to 10 CFR part
710; (3) eliminate obsolete references; (4) clarify the processes and
procedures to be followed during the removal, revocation, hearing, and
appeal stages; and (5) update and add definitions for certain terms
used in the regulation that apply to HRP certification.
As described, DOE makes only a few changes to the existing rule
that are different than those proposed in the NOPR. Details of those
changes to the existing rule are summarized in Sections II and III in
this rule. DOE's responses to public comments received on the NOPR are
also discussed in Section II in this rule.
II. Summary of Comments and Responses
DOE published a NOPR on June 22, 2017 (82 FR 28412), inviting
public comments on the proposed regulatory changes in the NOPR. In
response to the publication of the NOPR, DOE received comments from
three individuals and
[[Page 18196]]
one entity. Two of the individual commenters were generally
complimentary about the NOPR but did not provide any specific comments
on the NOPR. One individual commenter submitted multiple comments, but
the comments do not concern the provisions in part 712 that were
proposed for amendment in the NOPR and therefore are not addressed in
this section. Another commenter representing the Savannah River Nuclear
Solutions (SRNS) submitted 20 comments, of which 13 were determined to
be outside the scope of this rulemaking because they do not concern the
provisions in part 712 that were proposed for amendment in the NOPR.
Those 13 comments are not addressed in this section. The remaining
seven SRNS comments that are responsive to the changes proposed in the
NOPR are addressed as follows:
1. The commenter expressed concern that the standard for temporary
removals by the HRP management official in Sec. 712.19(a)(1) was too
subjective and recommended defining specific criteria for the temporary
removal.
Response: To further clarify that the criteria identified in Sec.
712.13(c) apply to the HRP management official's decision to
temporarily remove an individual, DOE is amending Sec. Sec.
712.13(d)(1) and 712.19(a)(1) to clarify that all removals must be
based on a safety or security concern that is tied to one or more of
the types of behaviors or conditions identified in Sec. 712.13(c).
2. The commenter requested clarification as to the types of safety
concerns that would warrant a temporary removal.
Response: DOE changed its definition of safety concern from ``any
condition, practice, or violation that causes a substantial probability
of physical harm, property loss, and/or environmental damage'' to one
that causes a ``reasonable probability.'' By changing the threshold
from ``substantial'' to ``reasonable'' probability DOE intended to
clarify that a common sense approach be taken to determine whether an
individual can physically perform his/her duties with due consideration
to the factors involved in an incident that may raise safety concerns.
The commenter's statement that not every violation of a safety rule or
procedure should result in a temporary removal is correct. Only those
violations that would raise a concern as to the individual's ability to
perform his/her duties would raise the type of safety concern that may
lead to a temporary removal.
3. The commenter requested clarification as to whether incumbents
and/or applicants can request a certification review hearing.
Response: The regulation provides at Sec. 712.20(a) that an
individual who receives notification of the Manager's decision to
revoke his or her HRP certification may choose one of two options. The
two options are either a request to the Manager for reconsideration or
a request to the Manager for a certification review hearing. Only those
individuals who have been certified in the HRP and have had their HRP
certification revoked can choose one of these two options. Applicants
are those individuals who do not have HRP certification; therefore,
applicants do not have a certification that can be revoked. Thus,
applicants are not entitled to either of the two options.
4. The commenter requested that the rule clarify whether interim
clearances would meet the requirement in Sec. 712.11 to have a ``Q''
access authorization.
Response: The rule does not currently permit interim clearances;
however, DOE has determined that there should be a process in place for
approving exemptions from the requirements in Sec. 712.11 under
appropriate circumstances, including the requirement to have a ``Q''
access authorization. Therefore, DOE is amending part 712 to include a
process for approving exemptions to requirements in Sec. 712.11. This
provision makes clear that exemptions may be granted only when the
exemption will not endanger life or property or the common defense and
security, and is otherwise consistent with the national interest.
5. The commenter requested clarification as to whether a
counterintelligence evaluation is required for everyone nominated for
HRP.
Response: A counterintelligence evaluation of HRP certified
individuals is performed consistent with the requirements of 10 CFR
part 709, which provides that a counterintelligence evaluation, which
may include a polygraph examination, is required at least once every
five years for individuals in the HRP who are designated based on a
risk assessment pursuant to Sec. 709.3(b)(6). DOE is adding language
to Sec. 712.11(a)(8) to clarify that the counterintelligence
evaluation only applies to designated positions identified pursuant to
10 CFR part 709.
6. The commenter requested clarification on the five-day
notification requirement in Sec. 712.19 for temporary removals,
including whether email notification would meet the requirement for
notification in writing.
Response: The requirement for written notification within five
business days was intended to give DOE sufficient time to notify the
individual in the event there were extenuating circumstances (e.g.,
individual is out of work sick or on vacation), but otherwise notice
should be made immediately after temporary removal. Also, email
notification would meet the requirements for written notification as
long as the message makes clear that it serves as written notification
required by Sec. 712.19.
7. The commenter requested clarification on how the HRP supervisors
and HRP contractor management officials can prepare a case chronology
without having access to the personnel security files of HRP certified
individuals.
Response: The case chronology is prepared by the HRP management
official, not the supervisor. Also, the case chronology is based on
information in the HRP file, to which the HRP management official has
access. So, lack of access to the personnel security file would not
have an impact on an HRP management official's ability to prepare a
case chronology. If the HRP management official, or other individual
with responsibilities in the HRP program, such as the supervisor, SOMD/
Physician/Psychologist needed access to the personnel security file,
then access would be permitted in accordance with the Privacy Act of
1974.
III. Description of Proposed Changes
With the exception of the changes described below, the
modifications to 10 CFR part 712 adopted in this final rule are
described in the Description of Proposed Changes in Section II of DOE's
NOPR published in June 22, 2017 (82 FR 28412).
1. In Sec. 712.3, ``Definitions,'' the definition of
``Reinstatement'' is modified for consistency with the definition of
``Restoration.'' Both terms are used to describe the circumstances
under which an individual is returned to HRP duties. The new definition
of ``Reinstatement'' would clarify that the individual's return to HRP
duties is contingent on the HRP management official ensuring that the
individual has completed all necessary components of the annual
recertification process identified in Sec. 712.11, and any other
specific requirements that must be completed in order to return to full
HRP duties. The definition of ``Restoration'' already includes this
clarification.
2. In Sec. 712.4, ``Exemptions,'' a new section is added to
incorporate a process for requesting exemptions from requirements in
Sec. 712.11 and DOE
[[Page 18197]]
approval of such requests. This change authorizes the cognizant Under
Secretary to approve an exemption only if the exemption will not
endanger life or property or the common defense and security, and is
otherwise consistent with the national interest.
3. In Sec. 712.11, ``General requirements for HRP certification,''
Sec. 712.11(a)(8) is modified to clarify that the requirement for
successful completion of a counterintelligence evaluation is only
required for HRP positions that are designated pursuant to DOE's
regulations in 10 CFR part 709, ``Counterintelligence Evaluation
Program,'' Sec. 709.3(b)(6).
4. In Sec. 712.12, ``HRP Implementation,'' Sec. 712.12(e)(1) is
modified to replace the title, ``Director, Office of Corporate Security
Strategy, Analysis and Special Operations'' with ``Director, Office of
Corporate Security Strategy.'' In addition, paragraph (c) is modified
to replace the title, ``The Deputy Administrator for Defense Programs,
NNSA'' with ``The Under Secretary for Nuclear Security, or his/her
designee,''.
5. In Sec. 712.13, ``Supervisory review,'' Sec. 712.13(d)(1) is
modified to clarify that the supervisor's immediate removal of an HRP-
certified individual for safety and/or security concerns must be based
on one of the behaviors identified in paragraph (c) of this section.
6. In Sec. 712.15, ``Management evaluation,'' Sec. 712.15(b) is
modified to update the reference to DOE's drug testing program for
federal employees. The DOE Order only applies to federal employees and
no significant changes were made to DOE's drug testing program.
7. In Sec. 712.16, ``Security review,'' the last sentence of Sec.
712.16(b) is modified to replace the term ``immediately'' with
``temporarily'' to clarify that an individual whose access
authorization has been suspended must be temporarily removed by the HRP
management official. The current language provides that the individual
must be ``immediately'' removed, which may be confused with ``immediate
removals'' under Sec. 712.13, which are the responsibility of the
supervisor. When an individual's access authorization has been
suspended, the HRP management official is notified of the suspension;
therefore, it is appropriate that the HRP management official has the
responsibility to temporarily remove the individual. After the HRP
management official has temporarily removed an individual, it is the
HRP certifying official's responsibility to continue the temporary
removal pending completion of the DOE personnel security process in
accordance with Sec. 712.19(f)(2). Processing of the individual's HRP
certification will be stayed pending completion of the DOE personnel
security process. If the personnel security process results in the
revocation of the individual's access authorization, the individual's
HRP certification must be administratively terminated, on the ground
that the individual no longer meets the requirement in Sec. 712.11 to
hold a ``Q'' access authorization. Administrative termination is not a
temporary removal or revocation. Therefore, an administrative
termination does not entitle the individual to reconsideration or a
certification review hearing under Sec. 712.20. Other circumstances
where administrative termination of HRP certification would be
appropriate include where an individual no longer has need for HRP
certification due to administrative actions such as retirement or
moving to a non-HRP position, or where the individual's position is no
longer designated as an HRP position under Sec. 712.10.
8. In Sec. 712.19, ``Actions related to removal, revocation and/or
reinstatement,'' Sec. 712.19(a)(1) is modified to clarify that
temporary removal of an individual by the HRP management official for a
safety and/or security concern must be based on one of the behaviors
identified in Sec. 712.13(c). In addition, the timing of the HRP
management official's preparation of the evaluative report is modified.
In the NOPR, DOE proposed that the HRP certifying official, upon
recommending revocation to the Manager, would direct the HRP management
official to prepare the evaluative report. The rule now requires the
Manager, upon a determination that revocation is appropriate, to
require the HRP management official to prepare the evaluative report.
The evaluative report is the document that sets forth the bases
supporting the revocation of an individual's certification; therefore,
it should be prepared at the time the Manager determines that
revocation is appropriate. Modifications are made to Sec. 712.19(f)(3)
and (h) to reflect this change. Consistent with these modifications,
modifications are also made to Sec. 712.19(i)(2) to clarify that an
evaluative report be prepared, and not revised, when the Manager makes
a determination to revoke after the individual was directed to take
specified actions under Sec. 712.19(f)(2) or (g)(3).
9. In Sec. 712.20, ``Request for reconsideration or certification
review hearing,'' paragraph (a) is modified to clarify that the
procedures in this section only apply to revocations made under Sec.
712.19 and not to other types of revocations, such as revocations for
failure to cooperate under Sec. 712.25.
10. In Sec. 712.23, ``Office of Hearings and Appeals,'' DOE
clarifies in paragraph (c) that the individual's or the Manager's
written request for further review of the Administrative Judge's
decision must be filed with the cognizant Under Secretary within 20
working days of the receipt of the OHA decision by the individual or
the Manager, respectively.
11. In Sec. 712.25, ``Cooperation by the individual,'' DOE
modifies paragraph (c) to indicate that if the Manager determines upon
reconsideration that revocation was inappropriate, the Manager shall
``reverse revocation.'' Reversing revocation would place the individual
in the same HRP status that he or she occupied prior to the revocation.
In the NOPR, DOE had proposed that the Manager would direct the
individual to be ``reinstated.'' However, use of the term
``reinstated'' may be confused with ``reinstatement,'' which is a
defined term and only applies to temporary removals.
IV. Regulatory Review
A. Review Under Executive Order 12866 and 13563
The regulatory action today 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, this rule is not subject to review under the Executive
Order by the Office of Information and Regulatory Affairs within the
Office of Management and Budget.
DOE has also reviewed the regulation pursuant to Executive Order
13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)).
Executive Order 13563 is supplemental to and explicitly reaffirms the
principles, structures, and definitions governing regulatory review
established in Executive Order 12866. To the extent permitted by law,
agencies are required by Executive Order 13563 to: (1) Propose or adopt
a regulation only upon a reasoned determination that its benefits
justify its costs (recognizing that some benefits and costs are
difficult to quantify); (2) tailor regulations to impose the least
burden on society, consistent with obtaining regulatory objectives,
taking into account, among other things, and to the extent practicable,
the costs of cumulative regulations; (3) select, in choosing among
alternative regulatory approaches, those approaches that maximize net
benefits (including
[[Page 18198]]
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity); (4) to the extent
feasible, specify performance objectives, rather than specifying the
behavior or manner of compliance that regulated entities must adopt;
and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies
to use the best available techniques to quantify anticipated present
and future benefits and costs as accurately as possible. In its
guidance, the Office of Information and Regulatory Affairs has
emphasized that such techniques may include identifying changing future
compliance costs that might result from technological innovation or
anticipated behavioral changes. DOE believes that this NOPR is
consistent with these principles, including the requirement that, to
the extent permitted by law, agencies adopt a regulation only upon a
reasoned determination that its benefits justify its costs and, in
choosing among alternative regulatory approaches, those approaches
maximize net benefits.
B. Review Under Executive Orders 13771 and 13777
On January 30, 2017, the President issued Executive Order 13771,
``Reducing Regulation and Controlling Regulatory Costs.'' That Order
stated the policy of the executive branch is to be prudent and
financially responsible in the expenditure of funds, from both public
and private sources. The Order stated it is essential to manage the
costs associated with the governmental imposition of private
expenditures required to comply with Federal regulations. This final
rule is expected to be an E.O. 13771 deregulatory action.
Additionally, on February 24, 2017, the President issued Executive
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order
required the head of each agency designate an agency official as its
Regulatory Reform Officer (RRO). Each RRO oversees the implementation
of regulatory reform initiatives and policies to ensure that agencies
effectively carry out regulatory reforms, consistent with applicable
law. Further, E.O. 13777 requires the establishment of a regulatory
task force at each agency. The regulatory task force is required to
make recommendations to the agency head regarding the repeal,
replacement, or modification of existing regulations, consistent with
applicable law. At a minimum, each regulatory reform task force must
attempt to identify regulations that:
(i) Eliminate jobs, or inhibit job creation;
(ii) Are outdated, unnecessary, or ineffective;
(iii) Impose costs that exceed benefits;
(iv) Create a serious inconsistency or otherwise interfere with
regulatory reform initiatives and policies;
(v) Are inconsistent with the requirements of Information Quality
Act, or the guidance issued pursuant to that Act, in particular those
regulations that rely in whole or in part on data, information, or
methods that are not publicly available or that are insufficiently
transparent to meet the standard for reproducibility; or
(vi) Derive from or implement Executive Orders or other
Presidential directives that have been subsequently rescinded or
substantially modified.
DOE concludes that this final rule is consistent with the
directives set forth in these executive orders. The revisions would
streamline DOE's existing procedures, applicable to DOE contractors and
Federal employees, for ensuring that persons with unescorted access to
certain nuclear materials, nuclear explosive devices, facilities and
programs meet the highest standards of reliability and physical and
mental suitability. These revisions are intended to provide better
guidance to HRP-certified individuals and to ensure consistency in HRP
decision making. Specifically, this rule will incorporate a new process
for requesting exemptions from requirements in Sec. 712.11 and
approval by the cognizant Under Secretary of such requests. For
example, this provision would allow, in appropriate circumstances,
interim clearances. In addition, in response to comment on the proposed
rule (82 FR 28412, June 22, 2017), DOE clarifies that all removals must
be based on a safety or security concern that is itself based on one or
more of the types of behaviors or conditions identified in Sec.
712.13(c). This clarification ensures that removals are not made for
reasons not previously known to the individual. DOE also clarifies that
in determining whether an individual can physically perform his/her
duties, DOE will consider all the factors involved in an incident that
may raise safety concerns, such that not every safety violation would
result in a temporary removal from HRP. This provision ensures that the
applicable threshold would not require removal where removal is not
warranted.
C. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this rule falls into a class
of actions which would not individually or cumulatively have
significant impact on the human environment, as determined by DOE's
regulations (10 CFR part 1021, subpart D) implementing the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.).
Specifically, this rule is categorically excluded from NEPA review
because the amendments to the existing rule are strictly procedural
(categorical exclusion A6). Therefore, this rule does not require an
environmental impact statement or environmental assessment pursuant to
NEPA.
D. 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 any rule
that 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. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' (67 FR 53461, August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made its
procedures and policies available on the Office of the General
Counsel's website at http://www.energy.gov/gc/office-general-counsel.
This rule would amend procedures that apply to the certification of
individuals in the HRP. The rule applies to individuals, and would not
apply to ``small entities,'' as that term is defined in the Regulatory
Flexibility Act. As a result, if adopted, the rule would not have a
significant economic impact on a substantial number of small entities.
Accordingly, DOE certifies that the rule would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis is required. DOE's
certification and supporting statement of factual basis was provided to
the Chief Counsel for Advocacy of the Small Business Administration
pursuant to 5 U.S.C. 605(b).
[[Page 18199]]
E. Review Under the Paperwork Reduction Act
The information collection necessary to administer DOE's HRP
program is subject to OMB approval under the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. The collection was approved by OMB under OMB
approval number 1910-5122. Public reporting burden for the
certification is estimated to average 0.08 hours per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
F. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires a Federal agency to perform a detailed assessment of costs and
benefits of any rule imposing a Federal Mandate with costs to State,
local or tribal governments, or to the private sector, of $100 million
or more. This rulemaking does not impose a Federal mandate on State,
local or tribal governments or on the private sector.
G. Review Under the Treasury and Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any rule or policy that may affect
family well-being. The rule, if adopted, will have no impact on family
well-being. Accordingly, DOE has concluded that it is not necessary to
prepare a Family Policymaking Assessment.
H. Review Under Executive Order 13132
Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this rule and has
determined that it does not preempt State law and would not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
I. 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.
With regard to the review required by section 3(a), section 3(b) of
Executive Order 12988 specifically requires that Executive agencies
make every reasonable effort to ensure that the regulation: (1) Clearly
specifies the preemptive effect, if any; (2) clearly specifies any
effect on existing Federal law or regulation; (3) provides a clear
legal standard for affected conduct while promoting simplification and
burden reduction; (4) specifies the retroactive effect, if any; (5)
adequately defines key terms; and (6) addresses other important issues
affecting clarity and general draftsmanship under any guidelines issued
by the Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this rule meets the relevant standards of Executive
Order 12988.
J. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under implementing guidelines established
by each agency pursuant to general guidelines issued by OMB. OMB's
guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's
guidelines were published at 67 FR 62446 (October 7, 2002). DOE has
reviewed this rule under the OMB and DOE guidelines and has concluded
that it is consistent with applicable policies in those guidelines.
K. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates or is expected to lead to
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; and (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution and use.
This rule is not a significant energy action. Accordingly, DOE has not
prepared a Statement of Energy Effects.
L. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is a ``major rule'' as
defined by 5 U.S.C. 804(2).
V. Approval by the Office of the Secretary
The Office of the Secretary of Energy has approved the publication
of the final rule.
List of Subjects in 10 CFR Part 712
Administrative practice and procedure, Alcohol abuse, Classified
information, Drug abuse, Government contracts, Government employees,
Health, Occupational safety and health, Radiation protection and
Security measures.
Issued in Washington, DC, on April 16, 2018.
Rick Perry,
Secretary of Energy.
For the reasons stated in the preamble, DOE is amending part 712 of
title 10 of the Code of Federal Regulations as set forth below:
[[Page 18200]]
PART 712--HUMAN RELIABILITY PROGRAM
0
1. The authority citation for part 712 continues to read as follows:
Authority: : 42 U.S.C. 2165; 42 U.S.C. 2201; 42 U.S.C. 5814-
5815; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; E.O. 10450, 3
CFR 1949-1953 Comp., p. 936, as amended; E.O. 10865, 3 CFR 1959-1963
Comp., p. 398, as amended; 3 CFR Chap. IV.
0
2. Revise subpart A to read as follows:
Subpart A--Establishment of and Procedures for the Human Reliability
Program
General Provisions
Sec. 712.1 Purpose.
712.2 Applicability.
712.3 Definitions.
712.4 Exemptions.
Procedures
712.10 Designation of HRP positions.
712.11 General requirements for HRP certification.
712.12 HRP implementation.
712.13 Supervisory review.
712.14 Medical assessment.
712.15 Management evaluation.
712.16 Security review.
712.17 Instructional requirements.
712.18 Transferring HRP certification.
712.19 Actions related to removal, revocation and/or reinstatement.
712.20 Request for reconsideration or certification review hearing.
712.21 Appointment of DOE counsel.
712.22 Office of Hearings and Appeals.
712.23 Administrative Judge's decision.
712.24 Final decision by DOE Under Secretary.
712.25 Cooperation by the individual.
Subpart A--Establishment of and Procedures for the Human
Reliability Program
General Provisions
Sec. 712.1 Purpose.
This part establishes the policies and procedures for a Human
Reliability Program (HRP) in the Department of Energy (DOE), including
the National Nuclear Security Administration (NNSA). The HRP is a
security and safety reliability program designed to ensure that
individuals who occupy positions affording access to certain materials,
nuclear explosive devices, facilities, and programs meet the highest
standards of reliability and physical and mental suitability. This
objective is accomplished under this part through a system of
continuous evaluation that identifies individuals whose judgment and
reliability may be impaired by physical or mental/personality
disorders, alcohol abuse, use of illegal drugs or the abuse of legal
drugs or other substances, or any other condition or circumstance that
may be of a security or safety concern.
Sec. 712.2 Applicability.
The HRP applies to all applicants for, or current employees of DOE
or NNSA or a DOE or NNSA contractor or subcontractor in a position
defined or designated under Sec. 712.10 of this subpart as an HRP
position.
Sec. 712.3 Definitions.
The following definitions are used in this part:
Access means:
(1) A situation that may provide an individual proximity to or
control over Category I special nuclear material (SNM); or
(2) The proximity to a nuclear explosive and/or Category I SNM that
allows the opportunity to divert, steal, tamper with, and/or damage the
nuclear explosive or material in spite of any controls that have been
established to prevent such unauthorized actions.
Alcohol means the intoxicating agent in beverage alcohol, ethyl
alcohol, or other low molecular weight alcohol.
Alcohol abuse means consumption of any beverage, mixture, or
preparation, including any medication containing alcohol that results
in impaired social or occupational functioning.
Alcohol concentration means the alcohol in a volume of breath
expressed in terms of grams of alcohol per 210 liters of breath as
indicated by a breath test.
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.
Associate Under Secretary for Environment, Health, Safety and
Security means the DOE individual with responsibility for policy and
quality assurance for DOE occupational medical programs.
Case chronology means a written recitation of all actions that
support a recommendation to revoke an individual's HRP certification
under Sec. 712.19.
Certification means the formal action the HRP certifying official
takes that permits an individual to perform HRP duties after it is
determined that the individual meets the requirements for certification
under this part.
Contractor means contractors and subcontractors at all tiers and
any industrial, educational, commercial, or other entity, grantee, or
licensee, including an employee that has executed an agreement with the
Federal government for the purpose of performing under a contract,
license, or other arrangement.
Designated Physician means a licensed doctor of medicine or
osteopathy who has been nominated by the Site Occupational Medical
Director (SOMD) and approved by the Manager or designee, with the
concurrence of the Associate Under Secretary for Environment, Health,
Safety and Security or his or her designee to provide professional
expertise in occupational medicine for the HRP.
Designated Psychologist means a licensed Ph.D., or Psy.D., in
clinical psychology who has been nominated by the SOMD and approved by
the Manager or designee, with the concurrence of the Associate Under
Secretary for Environment, Health, Safety and Security or his or her
designee to provide professional expertise in the area of psychological
assessment for the HRP.
Diagnostic and Statistical Manual of Mental Disorders means the
current version of the American Psychiatric Association's manual
containing definitions of psychiatric terms and diagnostic criteria of
mental disorders.
Drug abuse means use of an illegal drug or misuse of legal drugs.
Evaluative report means the document that sets forth the bases
supporting the revocation of an individual's certification.
Evidential-grade breath alcohol device means a device that conforms
to the model standards for an evidential breath-testing device as
listed on the Conforming Products List of Evidential Breath Measurement
Devices published by the National Highway Traffic Safety Administration
(NHTSA).
Flashback means an involuntary, spontaneous recurrence of some
aspect of a hallucinatory experience or perceptual distortion that
occurs long after taking the hallucinogen that produced the original
effect; also referred to as hallucinogen persisting perception
disorder.
Hallucinogen means a drug or substance that produces
hallucinations, distortions in perception of sights and sounds, and
disturbances in emotion, judgment, and memory.
HRP candidate means an individual being considered for assignment
to an HRP position.
HRP-certified individual means an individual who has successfully
completed the HRP requirements.
HRP certifying official means the Manager or the Manager's designee
who certifies, recertifies, temporarily removes, reviews the
circumstances of
[[Page 18201]]
an individual's removal from an HRP position, and directs
reinstatement.
HRP management official means an individual designated by the DOE
or a DOE contractor, as appropriate, who has programmatic
responsibility for HRP positions.
Illegal drug means a controlled substance, as specified in
Schedules I through V of the Controlled Substances Act, 21 U.S.C. 811
and 812; the term does not apply to the use of a controlled substance
in accordance with the terms of a valid prescription, or other uses
authorized by Federal law.
Impaired or impairment means a decrease in functional capacity of a
person that is caused by a physical, mental, emotional, substance
abuse, or behavioral disorder.
Incident means an unplanned, undesired event that interrupts the
completion of an activity and that may include property damage or
injury.
Job task analysis means the formal process of defining the
requirements of a position and identifying the knowledge, skills, and
abilities necessary to effectively perform the duties of the position.
Manager means the senior Federal line manager at a departmental
site or Federal office with HRP-designated positions.
Material access area means a type of Security Area that is
authorized to contain a Category I quantity of special nuclear material
and that has specifically defined physical barriers, is located within
a Protected Area, and is subject to specific access controls.
Medical assessment means an evaluation of an HRP candidate and HRP-
certified individual's present health status and health risk factors by
means of:
(1) Medical history review;
(2) Job task analysis;
(3) Physical examination;
(4) Appropriate laboratory tests and measurements; and
(5) Appropriate psychological and psychiatric evaluations.
Nuclear explosive means an assembly of fissionable and/or
fusionable materials and main charge high explosive parts or
propellants that is capable of producing a nuclear detonation.
Nuclear explosive duties means work assignments that allow custody
of a nuclear explosive or access to a nuclear explosive device or area.
Occurrence means any event or incident that is a deviation from the
planned or expected behavior or course of events in connection with any
DOE or DOE-controlled operation if the deviation has environmental,
public health and safety, or national security protection significance,
including (but not limited to) incidents involving:
(1) Injury or fatality to any person involving actions of a DOE
employee or contractor employee;
(2) An explosion, fire, spread of radioactive material, personal
injury or death, or damage to property that involves nuclear explosives
under DOE jurisdiction;
(3) Accidental release of pollutants that results from, or could
result in, a significant effect on the public or environment; or
(4) Accidental release of radioactive material above regulatory
limits.
Psychological assessment or test means a scientifically validated
instrument designed to detect psychiatric, personality, and behavioral
tendencies that would indicate problems with reliability and judgment.
Random alcohol testing means the unscheduled, unannounced alcohol
testing of randomly selected employees by a process designed to ensure
that selections are made in a nondiscriminatory manner.
Random drug testing means the unscheduled, unannounced drug testing
of randomly selected employees by a process designed to ensure that
selections are made in a nondiscriminatory manner.
Reasonable suspicion means a suspicion based on an articulable
belief that an individual uses illegal drugs or is under the influence
of alcohol, drawn from reasonable inferences from particular facts, as
detailed further in part 707 of this title.
Recertification means the action the HRP certifying official takes
annually, not to exceed 12 months, that permits an employee to remain
in the HRP and perform HRP duties.
Reinstatement means the action taken after it has been determined
that an employee who has been temporarily removed from the HRP meets
the certification requirements of this part and can be returned to HRP
duties, contingent on the individual completing any and all components
of the annual recertification process under Sec. 712.11 and any other
specific requirements that must be completed in order to return to full
HRP duties.
Reliability means an individual's ability to adhere to security and
safety rules and regulations.
Restoration means the actions necessary to restore an individual's
HRP duties after a final decision has been made by the cognizant Under
Secretary or his/her designee to overturn the revocation decision. The
restoration of HRP duties is contingent on the individual completing
any and all components of the annual recertification process under
Sec. 712.11 and any other specific requirements that must be completed
in order to return to full HRP duties.
Safety concern means any condition, practice, or violation that
causes a reasonable probability of physical harm, property loss, and/or
environmental impact.
Security concern means the presence of information regarding an
individual that raises a question as to whether HRP certification and
recertification would endanger the common defense and security and
would be clearly consistent with the national interest.
Semi-structured interview means an interview by a Designated
Psychologist, or a psychologist under his or her supervision, who has
the latitude to vary the focus and content of the questions depending
on the interviewee's responses.
Site Occupational Medical Director (SOMD) means the physician
responsible for the overall direction and operation of the occupational
medical program at a particular site or program.
Supervisor means the individual who has oversight and
organizational responsibility for a person holding an HRP position, and
whose duties include evaluating the behavior and performance of the
HRP-certified individual.
Transfer means an HRP-certified individual moving from one site to
another site.
Unacceptable damage means an incident that could result in a
nuclear detonation; high-explosive detonation or deflagration from a
nuclear explosive; the diversion, misuse, or removal of Category I
special nuclear material; or an interruption of nuclear explosive
operations with a significant impact on national security.
Unsafe practice means either a human action departing from
prescribed hazard controls or job procedures or practices, or an action
causing a person unnecessary exposure to a hazard.
Sec. 712.4 Exemptions.
The Department is authorized to grant exemptions from the
requirements in Sec. 712.11 of this part as it determines are
authorized by law. Exemptions from requirements in this part are
allowed only on a case-by-case basis. All requests for an exemption
should be submitted in writing from the Manager to the Associate Under
Secretary for Environment, Health, Safety and Security for
coordination, and approval by the cognizant Under Secretary. A request
for an exemption shall be
[[Page 18202]]
approved only if the cognizant Under Secretary determines that the
exemption will not endanger life or property or the common defense and
security, and is otherwise consistent with the national interest. The
procedures in this section shall not be used to establish stricter
recertification standards than those required by Sec. 712.11.
Procedures
Sec. 712.10 Designation of HRP positions.
(a) HRP certification is required for each individual assigned to,
or applying for, a position that:
(1) Affords access to Category I SNM or has responsibility for
transportation or protection of Category I quantities of SNM;
(2) Involves nuclear explosive duties or has responsibility for
working with, protecting, or transporting nuclear explosives, nuclear
devices, or selected components;
(3) Affords access to information concerning vulnerabilities in
protective systems when transporting nuclear explosives, nuclear
devices, selected components, or Category I quantities of SNM; or
(4) Is not included in paragraphs (a)(1) through (3) of this
section but affords the potential to significantly impact national
security or cause unacceptable damage and is approved pursuant to
paragraph (b) of this section.
(b) The Manager or the HRP management official may nominate
positions for the HRP that are not specified in paragraphs (a)(1)
through (3) of this section or that have not previously been designated
HRP positions. All such nominations must be submitted to and approved
by either the NNSA Administrator, his or her designee, the Associate
Under Secretary for Environment, Health, Safety and Security or the
appropriate Lead Program Secretarial Officer, or his or her designee.
(c) Before nominating a position for designation as an HRP
position, the Manager or the HRP management official must analyze the
risks the position poses for the particular operational program. If the
analysis shows that more restrictive physical, administrative, or other
controls could be implemented that would prevent the position from
being designated an HRP position, those controls will be implemented,
if practicable.
(d) Nothing in this part prohibits contractors from establishing
stricter employment standards for individuals who are nominated to DOE
for certification or recertification in the HRP.
Sec. 712.11 General requirements for HRP certification.
(a) The following requirements apply to each individual applying
for or in an HRP position:
(1) A DOE ``Q'' access authorization;
(2) Signed releases, acknowledgments, and waivers to participate in
the HRP on forms provided by DOE;
(3) Completion of initial and annual HRP instruction as provided in
Sec. 712.17;
(4) Successful completion of an initial and annual supervisory
review, medical assessment, management evaluation, and a DOE personnel
security review;
(5) No use of any hallucinogen in the preceding 5 years and no
experience of flashback resulting from the use of any hallucinogen more
than 5 years before applying for certification or recertification;
(6) An initial drug test and random drug tests for the use of
illegal drugs at least once each 12 months;
(7) An initial alcohol test and random alcohol tests at least once
each 12 months; and
(8) For designated positions, identified pursuant to 10 CFR part
709, successful completion of a counterintelligence evaluation, which
may include a counterintelligence-scope polygraph examination in
accordance with DOE's Polygraph Examination Regulation, 10 CFR part
709, and any subsequent revisions to that regulation.
(b) Each HRP candidate must be certified in the HRP before being
assigned to HRP duties and must be recertified annually, not to exceed
12 months between recertifications.
(c) Individuals in newly identified HRP positions must immediately
sign the releases, acknowledgments, and waivers to participate in the
HRP and complete initial instruction on the importance of security,
safety, reliability, and suitability. If these requirements are not
met, the individual must be removed from the HRP position. All
remaining HRP requirements listed in paragraph (a) of this section must
be completed in an expedited manner.
(d) Alcohol consumption is prohibited within an eight-hour period
preceding scheduled work for individuals performing nuclear explosive
duties and for individuals in specific positions designated by either
the Manager, the NNSA Administrator, his or her designee, or the
appropriate Lead Program Secretarial Officer, or his or her designee.
(e) Individuals reporting for unscheduled nuclear explosive duties
and those specific positions designated by either the Manager, the NNSA
Administrator or his or her designee, or the appropriate Lead Program
Secretarial Officer, or his or her designee, will be asked prior to
performing any type of work if they have consumed alcohol within the
preceding eight-hour period. If they answer ``no,'' they may perform
their assigned duties but still may be tested.
(f) Any doubt as to an HRP candidate's or HRP certified
individual's eligibility for certification shall be resolved against
the candidate or individual in favor of national security and/or
safety.
Sec. 712.12 HRP implementation.
(a) The implementation of the HRP is the responsibility of the
appropriate Manager or his or her designee.
(b) The HRP Management Official must prepare an HRP implementation
plan and submit it to the applicable Manager for review and approval.
The implementation plan must:
(1) Be reviewed and updated every 2 years;
(2) Include the four annual components of the HRP process:
supervisory review, medical assessment, management evaluation (which
includes random drug and alcohol testing), and a DOE personnel security
determination; and
(3) Include the HRP instruction and education component described
in Sec. 712.17 of this part.
(c) The Under Secretary for Nuclear Security, or his/her designee,
must:
(1) Provide advice and assistance to the Associate Under Secretary
for Environment, Health, Safety and Security regarding policies,
standards, and guidance for all nuclear explosive duty requirements;
and
(2) Be responsible for implementation of all nuclear explosive duty
safety requirements.
(d) The Associate Under Secretary for Environment, Health, Safety
and Security, or designee, is responsible for HRP policy and must:
(1) Ensure consistency of the HRP throughout the DOE and NNSA;
(2) Review and comment on all HRP implementation plans to ensure
consistency with policy; and
(3) Provide policies and guidance, including instructional
materials, to NNSA and non-NNSA field elements concerning the HRP, as
appropriate.
(e) The Manager must:
(1) Review and approve the HRP implementation plan for sites/
facilities under their cognizance and forward the plan to the Director,
Office of Corporate Security Strategy, or designee; and
(2) Ensure that the HRP is implemented at the sites/facilities
under their cognizance.
[[Page 18203]]
(f) The HRP certifying official must:
(1) Approve placement, certification, reinstatement, and
recertification of individuals into HRP positions; for unresolved
temporary removals, follow the process in Sec. 712.19(f);
(2) Ensure that instructional requirements are implemented;
(3) Immediately notify (for the purpose of limiting access) the
appropriate HRP management official of a personnel security action that
results in the suspension of access authorization; and
(4) Ensure that the supervisory review, medical assessment, and
management evaluation, including drug and alcohol testing, are
conducted on an annual basis (not to exceed 12 months).
(g) Individuals assigned to HRP duties must:
(1) Execute HRP releases, acknowledgments, and waivers to
facilitate the collection and dissemination of information, the
performance of drug and alcohol testing, and medical examinations;
(2) Notify the Designated Physician, the Designated Psychologist,
or the SOMD immediately of a physical or mental condition requiring
medication or treatment;
(3) Report any observed or reported behavior or condition of
another HRP-certified individual that could indicate a reliability
concern, including those behaviors and conditions listed in Sec.
712.13(c), to a supervisor, the Designated Physician, the Designated
Psychologist, the SOMD, or the HRP management official; and
(4) Report to a supervisor, the Designated Physician, the
Designated Psychologist, the SOMD, or the HRP management official, any
behavior or condition, including those listed in Sec. 712.13(c), that
may affect his or her ability to perform HRP duties.
Sec. 712.13 Supervisory review.
(a) The supervisor must ensure that each HRP candidate and each
individual occupying an HRP position but not yet HRP certified executes
the appropriate HRP releases, acknowledgments, and waivers. If these
documents are not executed:
(1) The request for HRP certification may not be further processed
until these requirements are completed; and
(2) The individual is immediately removed from the position.
(b) Each supervisor of HRP-certified personnel must conduct an
annual review of each HRP-certified individual during which the
supervisor must evaluate information, based on his or her personal
knowledge that is relevant to the individual's suitability to perform
HRP tasks in a reliable and safe manner.
(c) The supervisor must report any concerns resulting from his or
her review to the appropriate HRP management official. Types of
behavior and conditions that would indicate a concern include, but are
not limited to:
(1) Psychological or physical disorders that impair performance of
assigned duties;
(2) Conduct that warrants referral for a criminal investigation or
results in arrest or conviction;
(3) Indications of deceitful or delinquent behavior;
(4) Attempted or threatened destruction of property or life;
(5) Suicidal tendencies or attempted suicide;
(6) Use of illegal drugs or the abuse of legal drugs or other
substances;
(7) Alcohol use disorders;
(8) Recurring financial irresponsibility;
(9) Irresponsibility in performing assigned duties;
(10) Inability to deal with stress, or the appearance of being
under unusual stress;
(11) Failure to comply with work directives, hostility or
aggression toward fellow workers or authority, uncontrolled anger,
violation of safety or security procedures, or repeated absenteeism;
(12) Significant behavioral changes, moodiness, depression, or
other evidence of loss of emotional control; and
(13) Any unusual conduct or being subject to any circumstances
which tend to show that the individual is not reliable.
(d) A supervisor must immediately remove an individual from HRP
duties:
(1) When the supervisor has a reasonable belief that the individual
is not reliable, based on either a safety or security concern based on
one or more of the types of behaviors and conditions identified in
Sec. 712.13(c);
(2) When the individual does not obtain HRP recertification; or
(3) When requested to do so by the HRP certifying official and/or
HRP management official.
(e) The supervisor must contact the appropriate personnel office
for guidance as to any actions that should occur as a result of the
immediate removal.
(f) Immediate removal: If the supervisor immediately removes an
HRP-certified individual for any reason specified in this part, he or
she must, at a minimum:
(1) Require the individual to stop performing HRP duties;
(2) Take action to ensure the individual is denied both escorted
and unescorted access to the material access areas; and
(3) Notify, within 24 hours, the HRP management official of the
immediate removal. The HRP management official shall take actions
consistent with Sec. 712.19.
Sec. 712.14 Medical assessment.
(a) Purpose. The HRP medical assessment is performed to evaluate
whether an HRP candidate or an HRP-certified individual:
(1) Represents a security concern; or
(2) Has a condition that may prevent the individual from performing
HRP duties in a reliable and safe manner.
(b) When performed. (1) The medical assessment is performed
initially on HRP candidates and individuals occupying HRP positions who
have not yet received HRP certification. The medical assessment is
performed annually for HRP-certified individuals, or more often as
required by the SOMD.
(2) The Designated Physician and other examiners working under the
direction of the Designated Physician also will conduct an evaluation:
(i) If an HRP-certified individual requests an evaluation (i.e.,
self-referral); or
(ii) If an HRP-certified individual is referred by management for
an evaluation.
(c) Process. The Designated Physician, under the supervision of the
SOMD, is responsible for the medical assessment of HRP candidates and
HRP-certified individuals. In performing this responsibility, the
Designated Physician or the SOMD must integrate the medical
evaluations, available testing results, psychological evaluations, any
psychiatric evaluations, a review of current legal drug use, and any
other relevant information. This information is used to determine if a
reliability, safety, or security concern exists and if the individual
is medically qualified for his or her assigned duties.
(d) Evaluation. The Designated Physician, with the assistance of
the Designated Psychologist, must determine the existence or nature of
any of the following:
(1) Physical or medical disabilities, such as a lack of visual
acuity, defective color vision, impaired hearing, musculoskeletal
deformities, and neuromuscular impairment;
(2) Mental/personality disorders or behavioral problems, including
alcohol and other substance use disorders, as described in the
Diagnostic and Statistical Manual of Mental Disorders;
(3) Use of illegal drugs or the abuse of legal drugs or other
substances, as identified by self-reporting or by
[[Page 18204]]
medical or psychological evaluation or testing;
(4) Threat of suicide, homicide, or physical harm; or
(5) Medical conditions such as cardiovascular disease, endocrine
disease, cerebrovascular or other neurologic disease, or the use of
drugs for the treatment of conditions that may adversely affect the
judgment or ability of an individual to perform assigned duties in a
reliable and safe manner.
(e) Job task analysis. Before the initial or annual medical
assessment and psychological evaluation, employers must provide, to
both the Designated Physician and Designated Psychologist, a job task
analysis for each HRP candidate or HRP-certified individual. Medical
assessments and psychological evaluations may not be performed if a job
task analysis has not been provided.
(f) Psychological evaluations. Psychological evaluations must be
conducted:
(1) For initial HRP certification. This psychological evaluation
consists of a psychological assessment (test), approved by the
Associate Under Secretary for Environment, Health, Safety and Security
or his or her designee, and a semi-structured interview.
(2) For recertification: This psychological evaluation consists of
a semi-structured interview. A psychological assessment (test) may also
be conducted as warranted.
(3) Every third year: The medical assessment for recertification
must include a psychological assessment (test) approved by the
Associate Under Secretary for Environment, Health, Safety and Security
or his or her designee. This requirement can be implemented over a 3-
year period for individuals who are currently in an HRP position.
(4) When additional psychological or psychiatric evaluations are
required by the SOMD to resolve any concerns.
(g) Return to work after sick leave. HRP-certified individuals who
have been on sick leave for five or more consecutive days, or an
equivalent time period for those individuals on an alternative work
schedule, must report in person to the Designated Physician, the
Designated Psychologist, or the SOMD before being allowed to return to
normal duties. The Designated Physician, the Designated Psychologist,
or the SOMD must provide a written recommendation to the appropriate
HRP supervisor regarding the individual's return to work. An HRP-
certified individual also may be required to report to the Designated
Physician, the Designated Psychologist, or the SOMD for written
recommendation to return to normal duties after any period of sick
leave.
(h) Temporary removal or restrictions. The Designated Physician,
the Designated Psychologist, or the SOMD may recommend temporary
removal of an individual from an HRP position or restrictions on an
individual's work in an HRP position if a medical condition or
circumstance develops that affects the individual's ability to perform
assigned job duties. The Designated Physician, the Designated
Psychologist, or the SOMD must immediately recommend medical removal or
medical restrictions in writing to the appropriate HRP management
official. If the HRP management official concurs, he or she will then
notify the appropriate HRP certifying official. To reinstate or remove
such restrictions, the Designated Physician, the Designated
Psychologist, or the SOMD must make written recommendation to the HRP
management official. The HRP management official will then notify the
appropriate HRP certifying official.
(i) Medical evaluation after rehabilitation. (1) Individuals who
request reinstatement in the HRP following rehabilitative treatment for
alcohol use disorder, use of illegal drugs, or the abuse of legal drugs
or other substances, must undergo an evaluation, as prescribed by the
SOMD, to ensure continued rehabilitation and adequate capability to
perform their job duties.
(2) The HRP certifying official may reinstate HRP certification of
an individual who successfully completes an SOMD-approved drug or
alcohol rehabilitation program. Recertification is based on the SOMD's
follow-up evaluation and recommendation. The individual is also subject
to unannounced follow-up tests for illegal drugs or alcohol and
relevant counseling for 3 years.
(j) Medication and treatment. HRP-certified individuals are
required to immediately report to the Designated Physician, the
Designated Psychologist, or the SOMD any physical or mental condition
requiring medication or treatment. The Designated Physician, the
Designated Psychologist, or the SOMD determines if temporary removal of
the individual from HRP duties is recommended and follows the
procedures pursuant to paragraph (h) of this section.
Sec. 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 Sec. 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 Sec.
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 Sec. 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
[[Page 18205]]
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.
Sec. 712.16 Security review.
(a) A personnel security specialist must review the personnel
security file of every HRP candidate and every HRP-certified individual
up for certification or recertification.
(b) If the personnel security file review is favorable, this
information must be forwarded to the HRP certifying official and so
noted on the certification form. If the review reveals a security
concern, or if a security concern is identified during another
component of the HRP process, the HRP certifying official must be
notified, and the personnel security specialist must evaluate the
concern in accordance with 10 CFR part 710. If a final determination is
made by DOE personnel security to suspend access authorization, the HRP
management official must be notified, the individual shall be
temporarily removed from the HRP position, the HRP certifying official
notified, and the information noted on the certification form.
(c) A favorable adjudication of security concerns under 10 CFR part
710 does not require granting or continuing HRP certification. Security
concerns can be reviewed and evaluated for purposes of granting or
continuing HRP certification even if the concerns have been favorably
resolved under part 710.
(d) Any mental/personality disorder or behavioral issues found in a
personnel security file, which could impact an HRP candidate or HRP-
certified individual's ability to perform HRP duties, may be provided
in writing to the SOMD, Designated Physician, and Designated
Psychologist previously identified for receipt of this information.
Medical personnel may not share any information obtained from the
personnel security file with anyone who is not an HRP certifying
official, except as consistent with the Privacy Act of 1974.
(e) If the DOE personnel security review is not completed within
the 12-month time period for recertification and the individual's
access authorization is not suspended, the HRP certification form shall
be forwarded to the HRP certifying official for recertification or
temporary removal, pending completion of the personnel security review.
Sec. 712.17 Instructional requirements.
(a) HRP management officials at each DOE site or facility with HRP
positions must establish an initial and annual HRP instruction and
education program. The program must provide:
(1) HRP candidates, HRP-certified individuals, supervisors, and
managers, and supervisors and managers responsible for HRP positions
with the knowledge described in paragraph (b)(1) of this section; and
(2) For all HRP medical personnel, a detailed explanation of HRP
duties and responsibilities.
(b) The following program elements must be included in initial and
annual instruction. The elements may be tailored to accommodate group
differences and refresher training needs:
(1) The objectives of the HRP and the role and responsibilities of
each individual in the HRP to include recognizing and responding to
behavioral change and aberrant or unusual behavior that may result in a
risk to national security or nuclear explosive safety; recognizing and
reporting safety and/or security concerns, physical, mental, or
emotional conditions that could adversely affect the performance of HRP
duties or that require treatment by a doctor, physician's assistant or
other health care professional; and prescription drug use; and an
explanation of return-to-work requirements and continuous evaluation of
HRP participants; and
(2) For those who have nuclear explosive responsibilities, a
detailed explanation of duties and safety requirements.
Sec. 712.18 Transferring HRP certification.
(a) For HRP certification to be transferred, the individual must
currently be certified in the HRP.
[[Page 18206]]
(b) Transferring the HRP certification from one site to another
requires the following before the individual is allowed to perform HRP
duties at the new site:
(1) Verify that the individual is currently certified in the HRP
and is transferring into a designated HRP position;
(2) Incorporate the individual into the new site's alcohol and
drug-testing program;
(3) Ensure that the 12-month time period for HRP requirements that
was established at the prior site is not exceeded; and
(4) Provide site-specific instruction.
(c) Temporary assignment to HRP positions at other sites requires
verification that the individual is currently enrolled in the HRP and
has completed all site-specific instruction. The individual is required
to return to the site that maintains his or her HRP certification for
recertification.
Sec. 712.19 Actions related to removal, revocation and/or
reinstatement.
(a) Temporary removal. The HRP management official shall direct the
temporary removal of an HRP-certified individual when the management
official:
(1) Identifies, during the course of the management evaluation, a
safety or security concern that warrants such removal based on one or
more of the types of behaviors and conditions identified in Sec.
712.13(c);
(2) Receives a supervisor's written notice of the immediate removal
of an HRP-certified individual; or
(3) Receives a recommendation from the Designated Physician, the
Designated Psychologist, or the SOMD to medically remove an HRP-
certified individual consistent with Sec. 712.14(h).
(b) The temporary removal of an HRP-certified individual from HRP
duties pending a determination of the individual's reliability is an
interim, precautionary action and does not constitute a determination
that the individual is not fit to perform his or her required duties.
Removal is not, in itself, cause for loss of pay, benefits, or other
changes in employment status. Immediately upon directing a temporary
removal, the HRP management official must notify the supervisor to take
appropriate actions consistent with an immediate removal. Within five
(5) business days of placing the individual on a temporary removal, the
HRP management official must notify the individual in writing that s/he
is temporarily removed.
(c) If temporary removal is based on derogatory information that is
a security concern, the HRP management official must notify the HRP
certifying official and the applicable DOE personnel security office.
(d) If temporary removal is based on a medical concern, the HRP
management official must obtain a recommendation from the Designated
Physician, Designated Psychologist, or the SOMD consistent with Sec.
712.14(h).
(e) If the HRP management official determines, after conducting an
evaluation of the circumstances or information that led to the
temporary removal, that an individual who has been temporarily removed
continues to meet the requirements for certification, the HRP
management official must:
(1) Direct that the supervisor reinstate the individual and provide
written explanation of the reasons and factual bases for the action;
(2) Notify the individual; and
(3) Notify the HRP certifying official.
(f) If the HRP management official determines that an individual
who has been temporarily removed does not meet the HRP requirements for
certification, the HRP management official must prepare a case
chronology that explains why the individual does not meet the
requirement for certification and forward it to the HRP certifying
official. The HRP management official's determination that an
individual does not meet certification requirement must be based on one
or more of the types of behaviors and conditions identified in Sec.
712.13(c). The HRP certifying official must review the case chronology
from the HRP management official and take one of the following actions:
(1) Direct that the supervisor reinstate the individual, with any
applicable medical restrictions, provide written explanation of the
reasons and factual bases for the action, and notify the individual;
(2) Direct continuation of the temporary removal pending completion
of specified actions (e.g., medical assessment, treatment) to resolve
the concerns about the individual's reliability; or
(3) Recommend to the Manager the revocation of the individual's
certification and provide the case chronology to the Manager. If the
HRP certifying official is the Manager, he or she should take actions
consistent with paragraph (g)(2) of this section.
(g) The Manager, on receiving the HRP management official's case
chronology and the HRP certifying official's recommendation (if any),
must take one of the following actions:
(1) Direct that the supervisor reinstate the individual, provide
written explanation of the reasons and factual bases for the action,
and notify the individual;
(2) Direct revocation of the individual's HRP certification, in
accordance with paragraph (h) of this section; or
(3) Direct continuation of the temporary removal pending completion
of specified actions (e.g., medical assessment, treatment) to resolve
the concerns about the individual's reliability.
(h) Notification of Manager's initial decision: If the action is
revocation, the Manager must direct the HRP management official to
prepare an evaluative report. The appropriate DOE or NNSA counsel must
review the evaluative report for legal sufficiency. Upon completion of
the evaluative report, the Manager must send a letter by certified mail
(return receipt requested) or hand deliver it with record of delivery
to the individual whose certification is revoked notifying him or her
of the reasons for the revocation and the options for review. The
evaluative report must be appended to the letter. The Manager may
withhold such a report, or portions thereof, to the extent that he or
she determines that the report, or portions thereof, may be exempt from
access by the employee under the Privacy Act or the Freedom of
Information Act.
(i) If an individual is directed by the Manager or HRP certifying
official to take specified actions to resolve HRP concerns pursuant to
paragraph (f)(2) or (g)(3) of this section he or she must be
reevaluated after those actions have been completed, and the Manager
must direct either:
(1) Reinstatement of the individual; or
(2) Revocation of the individual's HRP certification. In the case
of revocation, the HRP management official will be directed to prepare
an evaluative report.
Sec. 712.20 Request for reconsideration or certification review
hearing.
(a) An individual who receives notification of the Manager's
decision to revoke his or her HRP certification under Sec. 712.19 may
choose one of the following options:
(1) Submit a written request to the Manager for reconsideration of
the decision to revoke certification. The request must include the
individual's response to the information that gave rise to the concern.
The request must be sent by certified mail to the Manager within 20
working days after the individual received notice of the Manager's
decision; or
(2) Submit a written request to the Manager for a certification
review
[[Page 18207]]
hearing. The request for a hearing must be sent by certified mail to
the Manager within 20 working days after the individual receives notice
of the Manager's decision.
(b) If an individual requests reconsideration by the Manager but
not a certification review hearing, the Manager must, within 20 working
days after receipt of the individual's request, send by certified mail
(return receipt requested) a final agency decision to the individual.
(c) If an individual requests a certification review hearing, the
Manager must forward the request to the Office of Hearings and Appeals.
(d) If an individual takes no action within 20 working days after
receipt of the Manager's decision, the Manager's decision will become a
final agency decision.
Sec. 712.21 Appointment of DOE counsel.
(a) Upon receipt from the individual of a written request for a
certification review hearing, the Manager shall request appointment of
DOE counsel as soon as possible.
(b) DOE Counsel is authorized to consult directly with the
individual if he is not represented by counsel, or with the
individual's counsel or representative if so represented, to clarify
issues and reach stipulations with respect to testimony and contents of
documents and other physical evidence. Such stipulations shall be
binding upon the individual and the DOE Counsel for the purposes of
this subpart.
Sec. 712.22 Office of Hearings and Appeals.
(a) Upon receipt of the hearing request from the Manager, the
Director, DOE Office of Hearings and Appeals, shall appoint, as soon as
practicable, an Administrative Judge.
(b) The Administrative Judge must have a DOE ``Q'' access
authorization.
(c) An individual who requests a certification review hearing has
the right to appear personally before the Administrative Judge; to
present evidence in his or her own behalf, through witnesses or by
documents, or by both; and to be accompanied and represented at the
hearing by counsel or any other person of the individual's choosing and
at the individual's own expense.
(d) An individual must come forward with evidence to demonstrate
that the decision to revoke his or her HRP certification was clearly
erroneous or that extraordinary circumstances warrant recertification
into HRP. Evidence that the individual has rehabilitated or reformed
since the time of the Manager's decision will not be considered by the
Administrative Judge.
(e) DOE Counsel shall assist the Administrative Judge in
establishing a complete administrative hearing record in the proceeding
and bringing out a full and true disclosure of all facts, both
favorable and unfavorable, having bearing on the issues before the
Administrative Judge.
(f) In conducting the proceedings, the Administrative Judge will:
(1) Determine the date, time, and location of the hearing,
including whether the hearing will be conducted by video
teleconference;
(2) At least 7 calendar days prior to date scheduled for the
hearing, convene a prehearing conference for the purpose of discussing
stipulations and exhibits, identifying witnesses, and disposing of
other appropriate matters. The conference will usually be conducted by
telephone;
(3) Receive all relevant and material information relating to the
individual's fitness for HRP duties through witnesses or documentation;
(4) Ensure that the individual is permitted to offer information in
his or her behalf; to call, examine, and cross-examine witnesses and
other persons who have made written or oral statements, and to present
and examine documentary evidence to the extent permitted by national
security;
(5) Require the testimony of the individual and all witnesses be
given under oath or affirmation;
(6) Ensure that a transcript of the certification review
proceedings is made; and
(7) Not engage in ex parte communications with either party.
(g) The Administrative Judge shall have all powers necessary to
regulate the conduct of proceedings, including, but not limited to,
establishing a list of persons to receive service of papers, issuing
subpoenas for witnesses to attend the hearing or for the production of
specific documents or other physical evidence, administering oaths and
affirmations, ruling upon motions, receiving evidence, regulating the
course of the hearing, disposing of procedural requests or similar
matters, and taking other actions consistent with the regulations in
this part. Requests for subpoenas shall be granted except where the
Administrative Judge finds that the grant of subpoenas would clearly
result in evidence or testimony that is repetitious, incompetent,
irrelevant, or immaterial to the issues in the case.
(h) The Administrative Judge may return a case to the HRP Manager
for a final agency decision consistent with Sec. 712.20(b) if--
(1) The individual or his or her attorney fails to heed the
instructions of the Administrative Judge;
(2) The individual fails to appear at the appointed time, date and
location for the certification review hearing;
(3) The individual otherwise fails to cooperate at the hearing
phase of the process; or
(4) The individual withdraws his/her request for a certification
review hearing.
(i) Based on a review of the administrative hearing record, the
Administrative Judge shall prepare a decision regarding the
individual's eligibility for recertification in the HRP, which shall
consist of written findings and a supporting statement of reasons. In
making a decision, the Administrative Judge shall ensure that any doubt
as to an individual's certification shall be resolved against the
individual in favor of national security and/or safety.
Sec. 712.23 Administrative Judge's decision.
(a) Within 30 calendar days of the receipt of the hearing
transcript by the Administrative Judge or the closing of the record,
whichever is later, the Administrative Judge should forward his or her
decision to the Associate Under Secretary for Environment, Health,
Safety, and Security. The Administrative Judge's decision must be
accompanied by a copy of the record.
(b) Within 10 calendar days of receipt of the decision and the
administrative record, the Associate Under Secretary for Environment,
Health, Safety, and Security should:
(1) Notify the individual and Manager in writing of the
Administrative Judge's decision;
(2) Advise the individual in writing of the appeal procedures
available to the individual in paragraph (c) of this section if the
decision is unfavorable to the individual;
(3) Advise the Manager in writing of the appeal procedures
available to the Manager in paragraph (c) of this section if the
decision is favorable to the individual; and
(4) Provide the individual and/or counsel or representative, and
the Manager a copy of the Administrative Judge's decision and the
administrative record.
(c) The individual or the Manager may file with the Associate Under
Secretary for Environment, Health, Safety, and Security a written
request for further review of the decision by the cognizant Under
Secretary along with a statement required by paragraph (e) of
[[Page 18208]]
this section within 20 working days of the individual's or Manager's
receipt of the Administrative Judge's decision;
(d) The copy of any request for further review of the individual's
case by the cognizant Under Secretary filed by the Manager shall be
provided to the individual by the Manager.
(e) The party filing a request for review of the individual's case
by the cognizant Under Secretary shall include with the request a
statement identifying the issues on which it wishes the cognizant Under
Secretary to focus.
(f) The Administrative Judge's decision shall be considered final
if a written request for review is not filed in accordance with
paragraph (c) of this section.
Sec. 712.24 Final decision by DOE Under Secretary.
(a) Within 10 calendar days of receipt of the written request for
review, the Associate Under Secretary for Environment, Health, Safety
and Security should forward to the cognizant Under Secretary the
written request for review, the Administrative Judge's decision, and
the administrative record.
(b) Upon receipt of the written request for review, the
Administrative Judge's decision, and the administrative record, the
cognizant Under Secretary, in consultation with the DOE General
Counsel, will issue a final written decision. The cognizant Under
Secretary may delegate this authority. In issuing a final decision, the
cognizant Under Secretary shall expressly state that he or she is
either revoking or restoring an individual's HRP certification. A copy
of this decision must be sent by certified mail (return receipt
requested) to the Manager and to the individual.
(c) The cognizant Under Secretary shall consider only that evidence
and information in the administrative record at the time of the
Administrative Judge's decision.
Sec. 712.25 Cooperation by the individual.
(a) It is the responsibility of the HRP candidate or HRP certified
individual to provide full, frank, and truthful answers to relevant and
material questions, and when requested, furnish, or authorize others to
furnish, information that DOE deems pertinent to reach a decision
regarding HRP certification or recertification. This obligation to
cooperate applies at any stage, including but not limited to initial
certification, recertification, temporary removal, revocation, and/or
hearing. The individual or candidate may elect not to cooperate;
however, such refusal may prevent DOE from reaching an affirmative
finding required for granting or continuing HRP certification. In this
event, any HRP certification then in effect may be revoked, or, for HRP
candidates, may not be granted.
(b) An HRP certified individual who receives notification of the
Manager's decision to revoke his or her certification due to failure to
cooperate may choose one of the following options:
(1) Take no action; or
(2) Within 20 working days after the individual received notice of
the Manager's revocation decision, submit a written request by
certified mail to the Manager for reconsideration. The request must
include the individual's response to the information that gave rise to
the revocation decision.
(c) Upon receipt of the request for reconsideration, the Manager
shall notify the individual, in writing, within 20 calendar days of
receipt of the written appeal, as to whether the action to revoke
certification was appropriate. If the Manager determines that the
action was inappropriate, he or she shall reverse revocation.
Sec. 712.34 [Amended]
0
3. Section 712.34 is amended by removing the language, ``Director,
Office of Health and Safety'' in paragraphs (a), (b) introductory text,
(c), and (d) and adding in its place ``Associate Under Secretary for
Environment, Health, Safety and Security''.
0
4. Section 712.35 is amended by revising the section heading and in the
introductory text by removing the language, ``Director, Office of
Health and Safety'' and adding in its place ``Associate Under Secretary
for Environment, Health, Safety and Security''.
The revision reads as follows:
Sec. 712.35 Associate Under Secretary for Environment, Health,
Safety and Security.
* * * * *
Sec. 712.36 [Amended]
0
5. Section 712.36 is amended by:
0
a. Removing the language, ``Director, Office of Health and Safety'' in
paragraphs (d)(1) and (d)(3) and adding in its place ``Associate Under
Secretary for Environment, Health, Safety and Security''.
0
b. Removing paragraph (i).
[FR Doc. 2018-08697 Filed 4-25-18; 8:45 am]
BILLING CODE 6450-01-P