ML17177A324

Requests Info Re Positive Testing of Licensed Operator for Marijuana Following Random Drug Test Taken on 920318, Including Details of Circumstances Re Occurrence,Answers to Questions Listed in Encl & Other Related Info

ML17177A324
Person / Time
Site:	Dresden
Issue date:	03/20/1992
From:	Miller H NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III)
To:	Reed C COMMONWEALTH EDISON CO.
References
NUDOCS 9203240104
Download: ML17177A324 (8)

Text

"

Docket No. 50-237 Docket No. 50-249 Commonwealth Edison Company ATTN:. Mr. Cordell Reed Senior Vice President Licensing Department-Suite 300 Opus West.III 1400 Opus Place Downers Grove, IL 60515

SUBJECT:

LICENSED OPERATOR POSITIVE MARIJUANA TEST Your facility reported on March 19, 1992, that an NRG-licensed operator tested

. positive for marijuana following a random drug test taken on March is, 1992.

This letter is a request in accordance with 10 CFR 55.3l(b) for information pertaining to this occurrence.

Please provide the details of the circumstances pertaining to this occurrence, answers to the questions listed in Enclosure 1 to this letter, and other records and information on this *

• employee's.past fitness for duty which are relevant to the occurrence.

Any other information that you think is pertinent or~useful regarding this.

incident wou1~ be appreciated.

The information in.your reply to this letter will be evaluated to see if further action by the NRC pursuant to 10 CFR 55 is warranted.

A copy of 10 CFR 55 amendments which were effective on December 16, 1991, is included as.

The information supplied will be maintained in NRC Privacy Systems of Records-16, and.it will be subject to the Privacy Act.

If you have any questions, please feel free to contact me at (708) 790-5788.

Your cooperation is appreciated.

See Attached for Enclosures and Distribution RIII RIII RIII

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fot-:.iJ" Jordan s1a

.03/ ~o/92 03/to/92 9203240104 920320 PDR ADOCK 05000237 P

PDR 03/?-0/92 Sincerely, T. O. Martin for:

H. J. Miller, Director Division of Reactor Safety NRR

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RIII 1rwufv I/*\\

Wright

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' Lange Martin 03/~C/92 03/20/92 03/z.t:/92 v~~ f'f RIII r;v... \\~ -

\\J Miller 03/(C/92.

Commonwealth Edison Company

Enclosures:

l~

Licensed Operator Fitness-For-Duty Questionnaire

2.

Federal Register, Vol. 56, No.. 135, dated Monday, July 15, 1991 (Excerpt) cc w/enclosures:

D. Galle, Vic~ President -

BWR Operations T. Kovach, Nuclear Licensing Manager C. W.

Schro~der, Station ~anager S. R. Stiles, Training Department DCD/DCB (RIDS)

OC/LFDCB Resident Inspectors~Dre~den, LaSalle, Quad Cities Richard Hubbard

• .J. W. Mccaffrey, Chief Public Utilities Division Robert Newmann, Office of Public Counsel, State of Illinois Center

R: M. Gallo, NRR/LOLB Licensing Project Manager, NRR S~ate Liaison Officer 2

MAH 2 0 1992

ENCLOSURE 1 Licensed Op~rator Fitness~for-Duty Questionnaire Commonwealth Edison Company is requested to provide the following information concerning the Fitness~for-Duty occurrence of March 18 *. 1992, regarcl,ing the involved licensed operator:

1.

Name and resp.onsibilities of the operator* involved.

2.

The date(s) the operator was tested, and the date(s) that the test(s) were confirmed positive for marijuana under your Fit.ness-for-Duty Program.

3.

Whether the operator used/consumed, sold, or possessed illegal drugs or.

alcohoi within the protected area.

4.

Results of previous fitness-for-duty testing involving the operator.

S.

t..Thether the operator was at the conrols or supervising licensed activities while under the influence of marijuana.

6.

t..Thether the operator was involved in procedural errors which re.sulted in, o~ exacerbated the corisequ~nces of, an emergency classified as an Alert or higher.

7.

Your intentions wi~h regard to the operator's resumption of duties under the Part SO and Part SS licenses, including plans for followup testing to demonstrate that the operator has remained drug and alcohol-free.

• 8.

You are expected to review the operator's medical qualification and*

expected to take one of the following two actions:

(a) If it is determined that the licensed operator no longer-meets the medical qualifications described in 10CFR SS,33(a)(l), then you should notify the NRG via letter of the licensed opertor's incapacitation in accordance with 10 CFR SS. 2S.

• For example, a

• notification to the NRG would be required if a determination is made as part of ypur employee assistance program, in consultation with your designated physician, that the licensed incl,ividual can no longer_meet the medical criteria of ANSI/ANS 3.4~1983.

(b) If it is determined that the operjtor meets the requirements of Section 55. 33 (a) (1), then you should submit a medical certificat'ion on NRG Form 396 in order to allow the NRG to confirm that the operator's medical condition meets the requirements of Section SS.33(a)(l).

Your submittal should also includ*e documentation describing the basis regarding the designated physician's conclusion that the individual meets the general health requirements of ANSI/ANS 3.4-1983 and does not have a disqualifying condition under section 5.3 of that standard.

(

ENCLOSURE-2 Federal Register I Vol. 56. No. 135 I Monday, July 15, 1991 / Rules and Regulations compiled by the Department. we have determined that this nile will have an effect on the economy of less than $UJO million: will not cause a major increase in costs or prices for consumers, individual indvstries. Federal. State. or local government agencies. or geo~aphic regions; and will not cause a significant adverse effect on competition. employment, invesbnenL productivity, innovation, or on the ability of United States*based enterprises to compete with foreign.-

based enterprises in domealie or export markets.

requUementa ander ~

Paperwo~

• Reducti0n Ad of 19llO f44 U.S.C. 3501 et seq.).

ExecuJive Order n37Z

• Thia ~/activity ia listed in the Catalog of Federal Domestic Assistance wider No.10-025 and is subject tG

• Executive Order 12372. which reqUiles intergovernmental conauhation with *

• State and local official& [See 7 CFR p~

3015. subpart V.}

List ol Subjects in t CFR Part 71.

Animal diseasea. Brucellosis, Cattle.*

Hogs, Quarantine. Transportation.

For this action. the Office of Management and Budget has waived the review process required by Executive PART 78-8RUCELLOSIS Order 12291.

Cattle moved interstate are moved for

. Accordingty. we are adopting a& a slaughter. for use as breeding stock. or final rule, without change. the interim for feeding. Changing the status of rule amending 9 CFR 78.41 (b) and (c)

Oklahoma from Class B to Class A that was published at 58 FR 13~13751 reduces certain testing and other on April 4. 1991.

requirements governing the interstate Au!horfty: Zl. U.S.C. 111-114&-1. 114& 115.

movemem of cattle from Oklahoma.

117. 120. 121. 123-126. 134b, 134f. '1 CFR %.17.

Hc'l'fevet. cattle from certified 2.SL a.Dd STl.2(d).

bruc:elloais-free herds moving interstate Done In Washinpm. DC. lttis 9th day of are not affected by this change..

Jaly 1991.

, 'The principal group affected will be Jame9 W. Gloner, the oWI\\en of noncertified herds iD

• Admfnistraw. Animal and Plant Health Oklahoma 110t known to be affected Inspection 5ervice:.

V.;th bruceIIosi.s who seek to sell cattle.

[FR DOC: 91-16782 Ytled 7-12-91: lt45 am}

There are an estimated 62,000 herds in BIU.JNO COOl ~

environmenl for the performance of all licensed activities by providing a clear understanding to licensed operators* of

'the severity or violating requirements governing drug and alcohol use and substance abuse.

EFFECTIYE DATE: August 14 *. 1991.

FOA FURTHER INFORMATION CONTACT:

Robert M. Gallo; Chief, Operator Licensing Branch,.Office of Nuclear Reactor Regulation. U.S. Nuclear Regulatory Commission, Washington.

DC205SS. Telephone: (301) 492-1031.

SUPPUMEHTARY tNFOMIATION:

-Background On June 1.' 1989 (54 FR 2446&}. the NRC issued a new 10 CFR part 26.. entitled "Fitness-for-Duty Programs." to require licensees authorized to construct or operate nuclear power reactors to implement a fitness-for-duty program.

The genera.I objective of this program is to prO\\'ide reason.able assurance that nuclear power plant personnel will perform theii tasks in a reliable and trustworthy manner. and not under the -.

influence of any prescription. over-the-count~. or.illegal substance that in any way adversely affects their ability to safely and competently perform their duties. A fitness-for-duty program.

de1,.eloped under the requirements of Oklahoma ~hat could potentially be affected by' this rule change. We

==============~ *

• this rule. is intended to create a work es ti.mate that 99 percent of these herds are owned by small entities. During fi!'cal year 1990, Oklahoma tested

• 294.213 eligible cattle at livestoclc.

markets. We estimate that approximately 15 percent of this testing

• was done to qualify cattle for interstate movement for purposes other than slaughter. Testing casts apprt)ximately

$3.50 per head. Since herd sizes vary,.

larger herds will accumulate more savings than smalter herds. Also. not an*

herd owners will choose to market their cattle in a way that acCrue8 these costs savings. The overall effed of this rule on em.all enti.ties should be to provide very sma8 economic benefit.

Therefore. we believe that changing Oklahoma's brucellosis status will not significantly affect market patterns. and v.ill not have a significant economic impact on the small entities affected by this rule.

Under these cfrc:umstances. the Acbninistrlltor of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic imp~ct on a substantial number of small entities.

F B perworlc. Reductioo Ad ThiB hlle contaim no new information ccllection ~ recordkeeping NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 55

.RIN 3150-AD55 Operaton' Licenses AGEHCY: Nuclear Regulatory Commission.

ACTION: Final rul~.

SUMMARY

The N.dear Regulator)'

Commission (NRC) ia amending its regulations to 1peG*fy that the conditions and cutoll levela.e.tabliabed pursuant to

• the Commlsaioa'a Fitnesa-f~Daty

• Programs are applicable to~

operators as conditions of their licenses.

The final rule provides a basit f'or taking enforcement actiom agalmt licensed

• operators (1) Who use dnrp or alc:obol in a manner that would exceed the cutoff levels contained io the fltnesa-for-duty rule. (2) who are determined by a facility medical review officer (MRO) to be ander the fnfJuence of any prescription or over-the-coW\\ter drug that could adversely affect hit or her ability to safely and competently perform Uce.nsed cfutiee, or {3} who sen.

use. or pos9e99 Illegal drags. Thtt fimtl rule will ensure a safe opemttonal.

emironment that is free of drugs and alcohol and the effect! of.the use of

. these substsnces.

On April 17, 1990 (~FR 14288). the NRC published in the Federal Register proposed amendment! to 10 CFR part SS to sj>ecify that the conditions and cutoff levels established in 10 CFR part 26..

"Fitness-for-Duty Programs,- are applicable to licensed operators as a condition of their licenses. These amendments also provide a basis for*

taking enforcement action against licensed operators who violate to CFR

• part 26. Tile proposed rule also described contemplated changes to the NRC enforcement policy. The comment.

period ended on July 2. 1990.

The Commission is adding specific conditions to operator licenses issued under 10 CFR part 55 to malce fitness-

. for-duty requirements directty applicable to licensed operators. As pofnted out in the supplementary

. information accompanying the promulgation of 10 CFR part 26, the scientific evidence shows condusivety

• that significant decrements In cognitive

. and physical performance result from the use of illicit drugs as 111-eH as from the use and misuse of prescription and over-the-counter drugs. Given the add!ctive and Impairing nature of

((

Federal Register I Vol. 56, No. 135 I Monday; July 15, *199'1 / RUles' and Regwations 92067

• certain drugs, even though the presence of drug metabolites does not necessarily relate directly to a cwrent impaired state, the presence of drug metabolites in an individual's system strongly *

• suggests the likelihood of past. prelient.

or future impairment affecting job activities. More specifically, the Commission stated. "Individuals who are not reliable and trustworthy, under the influence of any substance, or

• mentally or physii:ally impaired in any way.that adversely affects their ability to safely and competently perform their duties, shall not be licensed or permitted to perform responsible health and safety

. functions.*~ (See 54 FR 24468, June 7, 1989.) Although there is an underlymg assumption that operators will abide by

• the licensees' policies and procedures, any involvement with illegal drugs, whether on site or off site, indicates that:*

the operator cannot be relied upon to obey the law and therefore may not scrupulously follow rigorous procedural requiremen~s with the integrity.required to ensure public health and safety.in the naclear power industry.

The Commission believes strongly that licensed operators are a critical factor in ensuring the safe operation of the facility and consequently considers unimpaired job performance by each*

licensed operator or senior operator

• vital in ensuring safe facility operation.

The NRC routinely denies PB.rt.55 license applications or imposes conditions upon operator and senior operator licenses if the applicant's medical condition and general health do not meet the minimum standards required for the safe performance of assigned job duties. Further, under

§ 55.25, if an operator develops, during the tenn 'of his or her license, a physical or mental condition that causes the operator to fail to meet the requirements for medical fitness. the facility licensee is required to notify the NRC. Any such condition may result In the operator's license being modified, suspended, or revoked.*

• The use of aloohol and drugs can * *.. '

• Tbe-cOmmission Is amending I 55.53 directly impair job performance. Other to establish as a condition of an

.causes of Impairment include use of

. operator'* license a. provision precluding prescription and over-the-counter perfoi:mance*oflicensed duties while medications. emotional and mental

• . under the Influence of drugs or alcohol stress~ fatigue. Illness, and physical (Ind in any manner that oould adversely psychological impairments. The effects affect performance. The CommiHion of alc:Ohol which is a drug, are well further amends I 55.61 to pro\\;de.

• known and documented and. therefore, explicit additional notice of the terms

• are not repeated here. nrugs such as and conditions under which an marijuana, sedatives, hallucinogens. and operatoi-'a license may be revoked.

high.doses of stimulants could adveniely suspended. or modified.. In addition.

affect an employee's ability to correctly

• confirmed positive test results and judge situations and m&ke decisions

. failures to participate In drug and

{NUREG/CR-3196. "Drug and Alcohol alcohol testing programs will be Abule: The Bases for Employee considered in making decisions

• Assistance Programs in the Nuclear concerning renewal of a part SS license.

Industry," available from the National Thes*e provisions will apply to any Technical lnformatian Service); The fitness-for-duty program established by greatest impairment occurs shortly after a facilit}' li~nsee, whether or not

• use or abuse, and the negative short-

• . required by* Commission regul:atioris,.

term effects* on human performance including programs that establish cutoff (including subtle or marginal levels below those set by-10 CFR part Impairments that are difficult for.a 26, appendix A. The Commission notes, su~rvisor to detect) can last for several however, that it has the discretion to hours or days. The amendment to 10 forgo enforcement action against a CFR part 55 will establish a conditiQn of licensed operator if the facili!y licensee an operator's license that will prohibit established cutoff levels that are so loW conduct of licensed duties while under as to be unreasonable in ter.n.s of the the influence of.alcohol or any uncertainties of testing. The Commission

. prescription, over-the-<:ounter. or illegal has reserved the right to re\\iew facility substance that would adversely affect licensee programs against the performance of licensed d.uties as performance objectives of 10 CFR part described by the facility's fi)ness-for-26, which require reasonable detection duty program. The amendment will be measures. The revised rule ~ill not --.

• applicable io licensed operators of impose the previsions of 10 O'R part 26 power and non-power reactors. This.

on non,power facility licensees. It is rulemaking is not intended to apply the

. revised to make compliance with the provisions of 10 CFR part 26 to non-cutoff levels and the policy 11.!ld power facility licensees, but to make it procedures regarding the use of legal clear to all licensed operators (power and illegal drugs establislled pursuant to and non-power) tblough conditions of 10 CFR part 26 a license con6tion for all their licenses that the use of drugs or holders of a 10 CFR part ss license.

alcohol in any manner that could.

adversely affect performance of licens-ed

• Part 26 requires that facility licensees

. duties would subject them to provide appropriate training to licensed enforcement action.1 operators, among others. to ensure that As explained in the Commission's they understand the effect of enforcement policy (see 53 FR 400Z7;.

p~scription and over-the-cou.-,ter drugs October 13, 1988). the Collimission may and dietary conditions on job

.lake enforeement action if the conduct performance and on chemical tes.t of an iridividual places in question the results. The training also should include

'NRC's reasonable assurance that information about the roles of licensed activities will be conducted

. supeTvisors and the medical review.

properly. The Commission may take officer in reporting an operator's cummt enforcement action* for reasons that use of over-the-counter drugs or would warrant refusal to issue a license prescription drugs that may impair his or

• on an original application. Accordingly.. her performance. Ucensed operators are enforcement action may be taken required to follow their facility's policies regarding matters that raise issues of and procedures regarding fitness-for-The power reactor facility licensee Is further required under I 26.20(a) to have written policies and procedures that address fitness-for-duty requirements on abuse of prescription and over-the-counter drugs and on other factors such as mental stress. fatigue, and illness that*

could affect fitness for duty. The Commission expects each licensed operator or senior operator at these trustworthiness. reliability, use of sound duty requirements.

• . judgment, futegrity, competence, fitness

. Ucensed operators will be subj~ to of duty. or other matters that may not

. notices of violation, civil penalties. or

• facilities to follow the licensee's written policle11 and procedures concerning the use and reporting requirements for prescription and over-the-counter drugs and other factors that the facility has determined could affect fitness for duty.

necessarily be a violation of specific

. orders for violation of their facility Commission requirements.

licensee's fitness-for-duty requirements.

Therefore, in addition to amending the

'It ahould be noted that diacussioo ol fitoeu-for-regulations to establish the 10 CFR part duty programa of Part so liceneeea i. only

• . 55 licensed operators' obligations. the applicable for power reactor Ileen-.

COmmlssion Is modifying the NRC

~

'~

32068

. Federal Kegistec / Vol. 56. No. 135 / Monday, July 15. 1991 I Rules and Regulations enforcement policy (Appendix C to 10 CFR part 2) in conjunction with the final rulernaking as described below.

In cases involving a licensed operator's failure to meet applicable fitness-for-duty requirements (10 CFR 55.Sl{j)). the NRC may isaue a notice of violation or a civil penalty to a licensed

• operator, or an ord~ to auspend. modify or revoke the license.. These actions may be taken the first time a licensed operator fails a drug or alcohol test. that is, receives a confirmed positive test that exceeds the cutoff levels of 10 CFR part 26 or the facility licensee's cutoff levels. if lower. However. normally olily a notice of violation will be issued for the first confll1Iled positive test in the absence or aggravating circumstances such as errors in the performance of licensed duties. In addition. the NRC intends lo issue an oriier to suspend the part 55 license for up to three years the second time an individual exceeds those

• culoff tevels. rr there are less.than three years remaining in the tenn of the individual license. the NRG may consider not renewing the individual license or not issuing a new license until the three-year period is completed. The NRC Intends to ls!rne an order to revoke one of the c:Ommeotera wrote that the rule la wmeceasary because the regulations already exm to ~me that the reactor operators adhere to 10 CFR part 26.. The COmmission agrees that the nec:eSsary regulatiorut exist to have licensed power reactor operators.

. -comply with the provisions of part 28.

However, the Commission realizes that the licensed operator is one of the main componenbl and possibly the most critical component of continued safe reactor.operation. Therefore. it wants to emphasize to and clearly inform the operators that as conditiOM of their licenses they must compty with their facility'& fitJ:ies&-for-duty program. The Commission also wants lo clarify the term "uae* versus Mconaumption" of alcohol in protected reactor areas. 'nte rule bu been rewritten to indicate that the "use of alcohol" means consumption of alcoholic beverages. The rule does not prohibit the uae of alcohol within the protected areas for other than ingestion.

such as application to the body. The use of medicine that contains alcohol is allowed within the parameters of the facility'* fitness-for-duty program.

However. use of over-the-rounter or the part 55 license the third time an

. prescription drugs containing alcohol must be within the pre9Cribed.

• limitations and In compliance with the

. individual exceeds those cutoff levels. A licensed operator or applicant who refuses to participate in t.'ie drug and aloobol temng programs established by the facility licensee or who is involved in the sale, use, or possession of an illegal drug Is subject to license suspension. revocation, or denial.

To assist in determining the severity levels of potential violations, 10 CFR parf 2. appendix c:. *. ".!pplement r. i9 modified to provide a Severity Leve! I example of a licensed operator or senior operator involved in procedural errors which result in. or exacerbate the consequences ol an il.lert or higher level emergency and subsequently receiving a confirmed positive test for drugs or alcohoL two Severity Level 11 examples ol (1) a licensed operal".'lflnvolved in the sale, use. or possession o! illegal drugs or the consumption of akoholic beverages within the protected area. or (2) a licensed operator or senior operator involved in procedmal emin and subsequently receiving a confirmed

• poeitive test for drugs or alcohol and a

• SeveritJ Level III example of a licensed operator's confirmed positive test far drugs or alcohol that does not result in a Severity Level I or ll violation.

Summ11r7 of Public Comments Letters o[ comment were receivee

.from 39 respondenls. One comm.enter wrote two letters.. which brought the totaf number oCresponses to 40. Thirty-facility's fitness-for-duty program.

. Further, as 10 CFR part 26 does not apply to non-power reactor licensees.

the Commission wishes to make it clear

• to licensed operators at these facllittes that the nse of drugs or alcohol in any manner that could adversely affect perfonnance of licensed duties would subject them to enforcement action.

Twenty-eight.of the con;µnentora wrote that this rule singles out licensed operators for special treatment to the detriment of their morale. The Commission bas co.nsidered the issue of morale and believes that most licensed operators already take their personal fitness for duty quite seriously. If there are any negative impacts on licensed.

operator morale these effects are expected to be short-lived as the vast majority of licensed operators will be

. unaffected. *This rule may. in fact.

increase operator confidence that tlleir peers are fit for duty. ThiS nle stresses*

to licensed operato~ that because of theu critical role in the safe operation or their reactors. they must be sinaled out for special treatment to &tress that their continuous unimpaired Job performance

• is a highly necessary component of the overall safe operation of the reactors.

The rule also stresses to Hcensed operators that their licenses are a privilege and not a right. and that.

refusal to participate in facility fitness-for-duty requirements can lead to enforcement action and/or licensing action. There has been no change to the rulemaking beeause of these comments.

Twenty commenters stated that it is ao unnecessary burden that the proposed rule requires medical personnel to be available 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day to make judgments about prescription

• and over-the-counter drugs. Medical personnel are not required by part 26 or part 55 to be on duty 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day for prescription and over-the-counter drug evaluation. The intent of the rule is that licensed operators follow the facility

• fitness~for-duty program for supervisory notification of fitness-for-duty concerns about the use of legal drugs. The rulemaking has been clarified to more fully explain this intent.

There were two questions about. the basis for the rulemaldng-(1} lA'hat is

. the basis or need for the rule change? (2}

ls it an industry wide problem? These questions were discussed above under

• the need for the rule (regulations already exist). The Commission can have nothing but a zero tolerance level

. for drug and alcohol use or abuse because of the critical nature of the industry. Therefore. the Commission deemed it n.e<;essary to stress compliance Y.rith facility fitness-for-duty programs as a condition of licensure.

There is no* change to the rulemaking as a result of these comments.

There was oce question about the reporting oflegal drugs. A licensed operator asked how operators wh_o do not report medicinal use of drugs will be treated. Licensed operators are required to follow the fitneSlt-for-duty prcg:am procedures ~,d policies developed by their facility.

Two ~mments were specific to licensed operators at t.est and ~earch reactor facilities. One was that formal

• drug testing programs should not be.

required for non-poweJ'facilities. These programs are not required by Part 26 or Part 55: however. if a fitness-for-duty program has been established c. t a non-power facility. licensed operatoni are required to participate. The second comment. i;egarding over-the-c.ounter and presCription medication. was that

~medical ~

officers do not exist at noo-pOwer facilities. That statement is true; there are no requirementa in either part 26 or part 55 tba t they do. No change lo the ntlemaking was required ae a direct result of these comments.

However. as a reslill of the pre*ious comment regarding medical per!Onnel availability, the rule was changed to clearly include ~isory notification when medical officers are not available.

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Federal Register / Vol. 56, No. 135 / M~rlday, July 15. 1991 / Rnies and Regulations Environmental Impact: Categorical Exclusion 1be NRC has determined that th~

final rule Is. the type of actioo desaibed in c&!egorical exclusion 10 CFR 5U2{c)(l). Therefore, neither an en\\'ironritental impact &latement nor an environmental assessment has been prepared for this rule.

Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwori<

Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget approval number 3150-0011.

Regulatory Analysi1 The regulations in 10 CFR pa.rt SS estabiish procedures and criteria far the issuance of licenses to operators and senior operators of utilization facilities licensed pu.~ant to the Atomic Energy Act oi 1954. as amended. or eeclion 202.

of the Energy Reorganization Ar.t of 1974. as amended, and 10 CFR part 50.

These established procedures provide the terms and conditions cpon which the Commission will issue. modify.

• maintain. and renew opera tar and senior operator licef!s..<>s.

Subpart F of part 55. nnder § 55.53.

"Conditions of Licenses." sets forth the requirements and conditions for the maintenance of operator and senior operator liceilses.

This rule terves to emphasize to the

• holders of operator and senior oJierator lir.enses the conditions they are required to comply with under 10 CFR part 26; "Fitness-for-Duty Programs." A regulatory analysis has been prepared

• for L'ie fmal rule resulting in the *

• promulgation of part 25 and is available.

for inspection in the NRC Public Document Room. 2120 L Streel'Nw.

(Lower Level). Washington. DC. This analysis examines the costs and benefits of the alternatives considered by the Commission for compliance with the conditions and cutoff levels. The Commission previously requestett public comment on the regulatory analysis as part of the rul:emaking proceeding that resulted in the adoption of part 26.

Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act 5 U.S.C. 605(b). the NRC certifies* that this rule will not have a significant economic effect on a substantial number of small entities.

Many applicants or holders. of operator licenses fall within the definition of

• small businesses found in section 34 of the Small Business Act (15 U.S.C. 632) or the Small &si.neis Siu SWl.d&rd. ~t out in regulations issued by the Small

• Business Administration at 13 CFR part 121 o.r the NRC's siu tstandards published December 9, 1985 (50 FR 50241). Ho'We'V'er. the rule will cmly aerve to provide notice to licensed indiViduals of the coaditiom mider wbich they are exped.ed to perform their liceiised duties; Backfit Analysis The NRC bas determined that Ui.e bacldit rule. 10 CFR 50.lOS. does not apply lo this final nile. and therefore.

that a backfit analysis U. not reqwired for this rv.1e because these amendmeots do BOl involve any proYisiom that would impos,e badditB aa defined tn 10 c.fR 50.lOl(a)(l).

LiSt of Subjeds 10CFRPart2 Administratke pl'l!.ctice and procedure. Antitrust Byprodnct material. aasstfied information.

F.nvironmenJal protectiori. Nuclear materials. Nuclear power plants and

• reactors, Penalty. Sex discriminati<m.

Source material Special nuclear material. Waste treatment and disposal.

to CFR Part.55 Criminal penalty. Manpower tr.sining programs. Nudear power plants and reactan;. Reporting and reronll:.~ing rei.;uirementL For the reasons set out in the.

preamble and under the authority of the Atomic F.neTgy Act of 1954. as amended.

the Energy Reorganization Act of 197'-

as amended. and 5 U.S.C. 55t anrl 553.

the NRC is adopting the following amesidmeuts to to CFR part 2 anc 10 CFR pu155..

PART 2-RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1. The authority citation for part ?

continues to read as follows:

All&hority: Sea. l&l. 181. 68 Stat 948. 953.

as amended (42 U.S.C. 2201. 2231); sec. 191. u emended. Pub. L 87~15. 76 Stat 409 (42 U.S.C. 2241); sec. 201. 88 Stat. 1242. as emended (42 U.S.C 5841}; 5 U.S.C. 552..

Section %.101 also lnued under secs. 5.1. 62.

63. 81. t03. 1<M. 106. 68 Stat 930. 9S2.. 933. 935.

936, 9'7, 1131. U amended (42 U.S.C. 21]13.

az. 2ml. rut. 2133. 2134. %135): aec.11410.

Pub. L 117~ W SlaL %213. as ame.Dded (42 U.S.C. 10134(£)}; aec. 102. Pub. L 11-igo, 83 Stat. 853. aa amended (42 U.S.C. 4332}; sec. 301, 88 Stat. 1%48 (42 U.S.C. 5871}. Sections 2.102. Z.103. Z.104, Z.105~ Z.721 etso isnred under aea. 102. 10J. 104, 105. 183. 189, 88 Slat.

936.. 9:37. 938.. sst. 955. a amended IC U.S.C.

Zl32. 2133. 21~ 2135. 2233. %2319). Section 2.105 ala.o is&wed under Pub. L 9'-US. 9&

Stat 1.073 {42 US.C. 2239). Section.a uoo-2.206 als,o issued under secs. 166. 234.. 68 Stat.

• -:-~°""~Ii*

"'F'Ft*

. 955. 63 Stat 4-44.. a* i=.er.deC: (.U L:.S..C. ~.

2282): sec. 2Q6.. BB Sil-t. 1:t;<<> ('!2 USC. SIMO).

Sectiozli ~Z..606 elsG i.!Mled o:nder aec.

102.. Pu.b. L ~-100. e.:< StaL ~es amen.:izd*

(42 U.S.C. 433Z). Sectior.io :.C.700.... ~g

.ilio issued under 5 U.S.C. 554. Sec*.ions 2.7!>4.

Z.760..i.770. 2.780 also issued under S U.S.C.

557. Section 2.764 and Tabie 1A o! Appendix C also Issued under eecs. 135. 141. Pub. L 9i-4Z5. 96 Stat mz. 2241 (<iz u.s."c. 1015s..

10161].. Section 2..790 aX.o issued under sec. 103, 68 Stat. 938. as amended (42 L'.S.t. Zi33J and 5 U.S.C. 552.. Sections 2.800 encl 2.m* &hu issued under S U.S.C. 553. Section 2.009 eisc *

• issued under 5 U.S.C. 553 illld 1ec*. 29, Pub. l..85-258. 71 Stat. 579 as amended (42 U.S.C:

2039). Subpart K also iswed 11ndel" ~

183.

68 Stal 955 (42 U.S.C 2239); sec. 134. ~L!b. I~

97-425. 96 Stat. 2230 (42. U.S.C. 1Ll154).

Subpart L al90 issued under l'eC. 169. 6C! Stc.t.

95S (42 U.S.C. ZZ3S). Appendix A elio issued under eec. 8. Pob. L 9'1-500. 84 Stal. 1473 (4%

U.S.C. %135}. Awmd!x B slso Issued tmder sec. 10. P\\.ib. L ~.ro, 99 Slat. 1842 f42 U.S.C.

20Zl b et seq.).

2. Appendix C to 10 CFR part 2 fr amended by-

a. Adding an undesigna:ed pn.rc;g;aph at the end of section V. E..

b. AddL'lg paragraph (e) tD section VllI. and

• c. Adding paragraph A. S.. B. :i~ H. 4~

• and C. 9 to supplement I 16 read as follows:*

A,;pendix C--Geceral Sta~t o{

POUcy and Proo--...dure !m NRG Enf<<ceme11I. Ac!iDns E. Enforcement A::!.'v:1s !r1vo/l*ir.g Indi~*iduo/s In the case of a Hcen.~ed operator's. fai1ure.

• to meel !!pplicabre fi~irs-for-<hrty requirements (10 CFR !\\5.~U)). the NRC mBy issue a notice of viola ti on or a crvil penalty to the part 55 licensee. or en orrler to Sl!spend.

modify er revoke the license. These ectiou,

may be taken the first time a licensed openttor fails a drug or alcohol lest. that i.5.

receives a confirmeci positive test tba.t exceeds tbe cutoIT levels of 10 CFR pert 26 or the facility licensee'>> cutoff le<'els. if lowr.r.

HoWl!ver. normally only a notice of \\"lolaticn will be issued fur the firs1 confirmed positive.*

test in the abse.nce or aggravatir.g

• circumstancea sucli as errors b the performance or licelllled duties. In adc!ition.

the NRC intends to Issue an order lo stispend th.e part SS license for up to t"ree yea1'9 the second time a lir.ensed oper*-:r::*:* exceeds those cutoff levels. ln the en:-* '"ere are less than three yea!'$ reliUli.nin;. ;:; :::*: ter.n or the individcara license, the N:-:c ;~;-*n:unsider not renewing the individ"~*., i::. ~ ~c,!:' or not intring 1 new license 1tft<>~ ii:*' :J:~~e yeai period i.s completed. Thr: ':*:*:c ':it,~nds to iirsue an order to re\\-c:h (i"! r. - :-t 55 licC?nse the third time a licensed -~r;e~:: 10; exceeds those cutoff level11.. A ~eo ooenitor or appl.icaot who refusea to !Hlr:icr?ate in the

32070.

Federal Register r Vol. s6. No. 135 I Monday. July 15, 1991 I RWE:S and Regulations drug and alcohol testing programs estahli*hed by the facility licensee or who i1 involved ln the 1&le. use. or possession of an illegal drug le subject to license suspension.

• revocation. or denial VIl/. Responsibilities * * *

(8) Any proposed enfQlC8Illent action involving a civil penalty to a licensed

'Operator.

Supplement 1-Severiry categories Reactor Operations A. Severity I * * *

5. A licensed operator at the controls*

. of a nuclear reactor, or a senior operator *

• directing licensed activities, involved in procedural errors which result in. or exacerbate the consequences of, an alert or higher level emergency end who, as a result of subsequent testing, receives a.

. confirmed positive test result for drugs or alcohol.

B. Severity I1 * * *

3. A licensed operator involved in the.

use, sale, or possession of illegal drugs or the consumption of alcoh()liC beverages, within the protected area.

• 4. A licensed operator at the controls of a nuclear reactor, or a senior operator directing lieensed activities, involved in-procedural emirs and who, as a result of subsequent testing. receives a confirmed positive test result for drugs or alcohol.

C. Severity Ill * * *

9. A licensed operator's confirmed*

• positive test for drugs or alcohol that does not result in a Severity Level I or II

-.;olation..

PART SS-OPERATOR$' LICENSES

3. The authority citation for part 55 continues to read as follows:

Authority: Secs. 107. 161, 182. lia Stal 939,

~

953, as amended. sec. 234. 83 Stal 444. 88 amended (42 U.S.C. 2137. 2201, ZZJZ. 2282);

secs. 201. as amended. 202. 88 Stal 1242. 88 amended. 1244 (42 U.S.C. 5841, 5842).

Sections 55.41. 55.43, 55.45. and 55.59 also iuued unc!er sec. 306. Pub. L 97-425, 98 Stai 2ze2 (42 U.S.C."10226). Section 55.61 also iss.ued under seC3, 186, 187. 68 Stal 955 (42 u.s.c. 2236. 2237).

For the purpcses of sec. 223, 88 Stat. 968. 88 amended (42 C.S.C. 2273): §156.3,_55.21.

55.49. and 55.53 are Issued under sec. 1611. 68.

Stat. 94\\l. as am~nded (42 U.S.C. zzOl(i)); and

§ § 55.9. 55.2.1. SS.25. and 55.53{£) are iasued under sec. 1610, 68 Stal 950. as arnended (42 IJ$.C. 2201(0)).

4. In § 55.53. paragraph (j) ia redesignated as paragraph (1) and new paragraphs m and (k) are added to read as follows:

§ 55.53 Condltlona of acen....

(j) The licensee shall _not consume or ingest alcoholic beverages within the protected area of power reactors. or the controlled access* area of non-power reactors. The licensee shall not use.

possess. or sell any illegal drugs. The licensee shall not perform activities authorized by a license issued under this part while under the influence of alcohol or any prescription. over-the-counter, or illegal su_bstance that could adversely.

affect his or her ability to safely and.

competently perform his or her licensed duties. For the purpcse of this paragraph. with.respect to alcoholic beverages and drugs, the term "under L'1e influence" means the licensee exceeded. as evidenced by a confirmed positive test. the lower of the cu~off.

levels for drugs or alcohol contained in.

10 CFR part 26, appendix A. of this chapter, or as established by the facility licensee. The term "under the influence**

also means the licensee could be mentally or physically impaired as a result of substance use including prescription and over-the-co'unter drugs, as determined under the *provisions,

. policies, and procedures establishe\\i by

• the facility licensee for its fitness-for.

duty program. in such a manner as to

• adversely affect his or her ability to safely and competently perform licensed duties.

(k) Each licensee at power reactors shall participate in the drug and alcohol.

testing programs estaplished pursuant to 10 CFR part 26. Each licensee at non-power reactors shall participate in any drug and alcohol testing program that may be established for that non-power facility.

5. In§ 55.61. a new paragraph (b)(5) is added to read as follows:

§ SU 1 Modtflcatlon and revocatlOn of Uc:enses.

(b). * *

. (5) For the sale. use or possession of illegal drugs.. or refusal to participate in the facility drug and alcohol testing.

program. or a confirmed positive test for drugs, drug metabolites, or alcohol in violation of the conditions and cutoff levels established by I 55.53m or the consumption of alcoholic beverages within the protected area of power reactors or the controlled acceSB area of non-power reactors. or a determination of unfitness for scheduled work as a result of the consumption of alcoholic heverages.

Dated at Rod~*ille. Maryland. this 5th day of July 1991.

For the Nuclear Regulatory Commission.

Samuel ). Chilk.

Secretary of the Commission.

(FR Doc. 91-16687 Filed_ 7-12-91: 8:45 amJ lllLIJMG COO 1llO-O-

. 10 CFR Part 9 DupAcation Fees

• AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regulations by re-.ising the charges for

. copying records publicly available at the

!\\'RC Public Document Room in Washington, DC. The amendment is necessary in order to reflect the change in copying charges resulting from the Commission*s award of a new contract for the copying of records.

EFFECTIVE DATE: JuJy 15, 1991.

FOR FURTHER INFORMATION CONTACT:

Michelle Sch.roll, Public Document Room Branch, Office of the Secretary, U.S.

Nudear Regulatory Commission, Washington, DC 20555. telephone 202-634-3366.

SUPPLEMENTARY INFORMATION: The NRC maintains a Public Document Room (PDR) et its headquarters at 2120 L.

Street. fll'W~ Lower Level, Washington..

DC. The PDR contains an extensive collection of publicly available technical and administrative records that the NRC receives or.generates. Requests by the public for the duplication of records at the PDR have traditionally been accommodated bye duplicating servii::e contractor selected by the NRC. The schedule of duplication charges to the public established in the du~licating service contract is set forth in 10 CFR 9.35 of the Commission's regulations, The NRC has recently awarded.a new duplicating service contract. The revised fee scheduled reflects the changes in copying charges to the public that have resulted from the awarding of the new contract for the duplication of records. at thePDR Because this is an amendment dealing with agency practice and procedures, the notice provisions of the Administrative Procedures Act do not apply pursuant to 5 U.S.C. S53(b)(A). In addition, the PDR user.i were notified on June 27, 1991. that the new contract. was being a*warded and thRt the new pnces.

would go into effect on July 10, 1~1. ~e amendment is effective npo11 publication

• • t