ML20035E243
| ML20035E243 | |
| Person / Time | |
|---|---|
| Issue date: | 03/18/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-58FR15810, RULE-PR-26 PR-930318, NUDOCS 9304150071 | |
| Download: ML20035E243 (17) | |
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l sak DOCKET NUMBER
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RO?OSED RULE N N (STFR 15610) j l
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[7590-01]
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l NUCLEAR REGULATORY COMMISSION i
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RIN 3150-AE36 l
Modifications to Fitness-For-Duty Program Requirements l
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AGENCY:
Nuclear Regulatory Commission.
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ACTION:
Proposed rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) proposes to amend its i
regulations to modify current Fitness-for-Duty Program (FFD) requirement 3.
j The proposed amendments would apply to all licensees authorized to construct l
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or operate a nuclear power reactor pursuant to 10 CFR Part 50. The proposed j
i rule is intended to permit licensees to -reduce the random testing rate for j
i licensee emoloyees but maintain the 100 percent random testing rate for l
contractor and vendor employees.
6 l2110th DATE: The comment period expires (insert _date 90 days from date cf p
puolication in the Federai Register).
Comments received af ter :nis date will-I be considered if it is practical to do so, but the Commission is acle to assure consideration only for comments received en or be' fore this cate.
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i 9304150071 930318
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l PDR PR i
j-26 58FR15810 PDR a
ADDRESSES: Mail comments to:
The Secretary of the Commission, U.S. Nuclear Regulatory Ccamission, Washington, DC 20555, ATTN:
Docketing ana Service Brancn.
i Deliver comments to:
One White Flint North, 11555 Rockville Pike, j
Rockville, Maryland between 7:30 am and 4:15 pm on Federal workdays.
i Copies of SECY-92-271, the draft regulatory analysis, ar.J the comments received may be examined at:
the NRC Public Document Room, 2120 L Street NW.
(Lower Level), Washington, DC.
Copies of NUREG/CR-5758 (Volumes 1 and 2) and NUREG/CR-5784 may be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082.
Copies are also available from the National Technical Information Service, 5282 Port Royal Road, Springfield, VA 22161.
A copy is available for inspection and/or copying for a fee in the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Loren L. Bush, Jr., Reactor Safeguards Branch, Division of Radiation Safety and Safeguards, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone:
(301) 504-2944.,
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SUPPLEMENTARY INFORMATION:
Background
The NRC is proposing to amend its regulations governing " Fitness-for-Duty Programs," as part of its continuing effort to improve its regulations.
The NRC has reviewed experiences gained since publication of the current rule on June 7, 1989 (54 FR 24468) and implementation by power reactor licensees on January 3, 1990.
The NRC has determined that it is appropriate to permit a reduction in the random testing rate for utility employees but maintain the 100 percent random testing rate for contractors and vendors.
During the FFD rulemaking process, the NRC had specifically invited the i
public to comment on the rates of random testing (53 FR 36795 at 36796; September 22, 1988).
Public comments strongly opposed a proposed 300 percent rate; the Nuclear Management and Resources Council (NUMARC) and most licensees proposed a 100 percent rate. These commenters also recommended that this rate be reevaluated on the basis of utility experience and be reduced to 25 l
percent, if warranted (54 FR 24468 at 24472; June 7, 1989).
As a result, the Commission indicated that it would consider reducing testing rates after several years if it obtained information that experience in the industry with the existing rate had been positive (54 FR 24468 at 24474; June 7, 1989).
On i
November 7, 1991, the Commission directed the staff to report on work that has been done on the deterrent effect of different testing rates with recommendations of the applicability of the work to the nuci jar ;>dustry.
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SECY-92-271 informed the Commission that no research exists that directly addresses the issue of wnether reducing the random testing rate affects the deterrent effect of drug testing and presented options for consideration by the Commission.
On October 20, 1992, the Commission instructed the staff to prepare a change to 10 CFR Part 26 that would permit licensees to randomly test their employees at a rate equal to 50 percent.
Discussion The purpose of random testing was discussed in the Federal Register in the Commission's notice of proposed rulemaking published on Jeptember 22, 1988 (53 FR 36795 at 36810). An extract of that discussion follows:
"The purpose of random (unannounced) testing is to provide reasonable assurance that employees are fit for duty by identifying current drog users and by deterring drug users from further use or potential users from initial use. The frequency with which an individual is tested is relevant to b".h the identification and deterrence goals of the drug testing program.
Generally, the more frequent the testing, the greater the deterrent effect and the better the detection capabilities.
However, very frequent testing may result in unacceptable economic or social costs.
Although there is no research upon which the testing frequency may be based, it seems reasonable to assume that-
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Any form of unannounced testing i
would provide some level of deterrence.
There would be little deterrent if i
the testing dates were predictable and the drug user knew he was not immediately susceptible to another test.
Testing each day would provide more of a deterrent than testing once each week or month, especially if the daily activity was highly visible.
Deterrence is related to either the actual or perceived probability of detection.
The actual probability of detection is related to the type of drug, dose, frequency of use, rate of metabolism and i
excretion from the body, and the frequency of testing.
The perceived probability of detection is related to the frequency of testing, the " publicity" given positive findings and sanctions imposed. and the abuser's knowledge of the rate of 4
metabolism and actual probacility of detection." --
The NRC recognizes that not all workers are deterred and that random l
testing does contribute significantly to the detection of substance abuse by those few who are not deterred.
The workforce may be divided into three i
groups concerning the deterrent effect of random testing.
The vast majority of workers do not abuse substances because of any of several reasons, usually concerns for health.
Random testing does not influence the behavior of this group.
There would be no deterrent effect.
A small percentage of workers are chronic abusers.
Random testing would have little, if any, influence on this group.
There would be no deterrent effect.
Random testing would eventually detect these people.
An unknown percentage of workers are, or could be tempted to be, occasional users and may be able to abstain if properly encouraged.
The deterrence effect of random testing would cause them to refrain from initial use or to modify their behavior if they are occasional users.
Random testing would have the greatest influence on this group.
The random testing rate has been an issue with other Federally regulated or administered random testing programs. The issue is the balancing of program goals.
The optimal random drug testing program is one that maximizes both detection and deterrence of substance abuse while minimizing monetary and social costs (e.g., adverse impacts on employee morale).
To maximize detection, other factors remaining constant, it is assumed that more testing,
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will result in more detection.
In maxim. zing deterrence, random testing rates have been influenced by assumptions that the probability of being selected for testing would have a deterrent effect and that the higher the testing rate the greater the deterrent effect (although the incremental deterrent effect would likely diminish as test rates increase).
These assumptions are based on both intuition and earlier efforts by the Department of Defense that indicated a greater deterrent effect at higher random testing rates.
In minimizing monetary and social costs when establishing a minimum random testing rate, factors such as the level of intrusion on an individual's privacy and the incremental costs of additional testing are considered.
In attempting to establish optimal testing rates that are reasonable and consistent with each agency's unique needs, Federal agencies have established programs with random testing rates that vary from 4 percent to 200 percent.
Perceptions of risk are believed to play a large role in deterring substance abuse.
For example, from studies of drunk driving and deterrence measures, researchers conclude that the risk of incurring strong sanctions appears to have a strong deterrent effect on substance abuse.
In addition, research on human decisionmaking and risk assessment suggests that an
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individual's perceptions of the risk of being tested and the risk of drug use j
being detected are not based on rational calculations of probabilities alone.
Individuals tend to overestimate the likelihood of low probability events (being selected for testing) and tend to incorporate into their decisionmaking V
the information that is most easily recalled.. _ - _
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l Deterrence is believed to be a function of the perceived risk of being detected, the severity of the sanction, and the swiftness with wnich it is applied compared with the gratification derived from the illicit behavior.
Several conclusions may be drawn from review of the available literature:
(1) The deterrent effect of random drug and alcohol testing programs may not be sensitive to incremental adjustments in random test rates. While random testing remains critical in deterring drug abuse, it is only one of the fcrces acting to deter drug use. Other important factors include the elements of a broadbrush program (e.g., awareness training, pre-access and for-cause testing, behavioral observation, counseling, and removals) as well as organizational and workforce demographic factors and drug-specific f actors.
I (2) Assuming equal testing rates and procedures, there will be a greater j
deterrent effect when the risks of drug abuse--including the probability of l
detection--are well understood than when they are not.
(3) Some users will remain undeterred.
Based on the findings of the military and research on drunk drivers, some part of the population continues l
1 to abuse drugs or alcohol even when detection and sanctions are highly certain.
Regardless of the random testing rate, some users may not cease their drug use under any condition.
Thus, other program elements, such as behavioral observation, for-cause testing, and employee assistance programs, are important to provide additional assurances to detect and remove chronic drug abusers from the workforce.
However, a higher random testing rate would more rapidly detect these undeterred users (see Appendix C to NUREG/CR-5784).
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Studies on random testing have found that higher testing and discharge rates may result in higher overall detection of drug abuse in the workforce (see Durbin, et al.,1991).
In terms of deterrence, continued crug use by identified users has been snown to be a substantial factor in overall drug use rates, suggesting that a substantial numcer of those testing positive for drugs are not deterred (Osborn & Sokolov, 1990; Stoloff, 1985).
The NRC considered several alternatives in determining the appropriate random drug testing rate for the nuclear power industry.
The NRC considered conducting a study that would reduce the random testing rate of so.
licensees to 50 percent (experimental sites) and analyze that data against the data of licensees who would continue a 100 percent testing rate (cor trol sites).
The experiment would have to run for several years to allow for delayed effects caused by adjusted testing rates and to obtain a sufficient number of test results. The design of the study ond the analysis of the results would have taken an additional year.
The NRC has decided not to conduct sucn a study because:
(i) the relatively long period of time required to collect and analyze the data would delay the Commission's action on this issue, and (ii) variables from site to site could mask any statistical differences between data from two test groups in the small absolute number of expected positive tests.
The NRC considered conducting an attitudinal study which would attempt to show worker attitudes toward, and their understanding of, ranoom testing.
It was hoped that this study would provide a better understandir.; of how this particular component of the FFD program deters substance abuse anc would help
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i determine wnether the perceived deterrent effect varies as the rate of random testing varies. The NRC has decided not to conduct this study because:
(i) the appreciable time that would be required to design and administer the survey and obtain CMB approval would delay the Commission's action on the issue, (ii) the study would tap worker attitudes rather than their behavior, and (iii) the results of the survey, by themselves, would not provide a solid basis for changes in the random testing rate.
The NRC also considered awaiting and evaluating the results of the Federal Railroad Administration's test program (56 FR 22905; May 17,1991) which is now expected to be completed in late 1993.
The NRC has decided not to await the results of this study because several factors may limit the application of the study to the nuclear industry:
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The railroad industry has fewer units (i.e., there are fewer carriers than there are utilities) and more employees per unit than the nuclear power industry; (ii) The flexibility provided in Part 26 regarding cutoff levels, sanctions, and so forth suggests a potential for substantial variability of the deterrent effects within the nuclear power industry; (iii) A rail line's employees are located across the country and, thus, are subject to a range of local drug-use patterns and contexts.
By contrast, the employees of a particular nuclear power plant tend to be i
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I (iv) The recently reported rate of substance abuse detected through random-i testing in the railroad industry is quadruple that in the nuclear power f
industry (approximately 1 percent as against 0.25 percent for power reactor licensee employees for the first 2 years).
Taking into account the uncertainties involved and the low rate of f
positive tests, the NRC has concluded that lowering the random testing rate from 100 percent to 50 percent would cause little, if any, decrease in the deterrent effect of random testing when applied to licensee employees, and f
that the rate of positive random tests for licensee employees is not likely to increase.
However, experiences with random testing gained since publication of the rule have shown contractor and vendor employees testing positive at a rate approximately double that for licensee employees.
Because of the higher rate of positive tests for contractor and vendor employees, the NRC is not proposing, at this time, to lower the rate for that population. See chart.
[ INSERT CHART]
In conclusion, the NRC believes that the fitness-for-duty program can be revised to permit licensees to lower the random testing rate for licensee employees without significant impact on the overall effectiveness of the program.
Therefore, the Commission is proposing that f 26,24(a)(2) be modified to permit licensees to randomly test their employees at an annual rate equal to at least 50 percent.
This would not preclude licensees from -
RANDOM TESTING 1990 199J Z-Ye g Totals 2-Year 8 Tests /f Positive
- Tests /# Positive
- Tests /f Positive Positive Rate Long-Term Contractors / Vendors 8,910/044 7,500/023 16,410/067 0.41%
Short-Term Contractors / Vendors 39,596/229 45,277/267 84,873/496 0.58%
All Contractors / Vendors 48,506/273 52,777/290 101,283/563 0.56%*
Licensee Employees 100,237/277 101,041/220 201,278/497 0.25%**
OThe range for contractor employees during CY 1991 was between 0%'and 1.53%,
with 7 sites having rates greater than 1.0%.
colhe range for licensee employees during CY 1991 was between 0% and 0.87%,
with 5 sites having rates higher than 0.5%.
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testing the employee workforce, or portions thereof, at a higher rate.
For the present, the minimum rate of testing for contractor and vencor employees, wnether under the licensee's program or an approved contractor er vendor program will remain at 100 percent.
The NRC will continue to monitor implementation of the rule and will modify the rule in response to industry experience, advances in technology, or other considerations to ensure that the rule is achieving the general performance objectives set forth in 10 CFR 26.10.
Assuming that the deterrent effect of the 50 percent random testing rate were to be about the same as that for a 100 percent rate, the proposed rule could result in a reduction in the number of cases of drug and alcohol use by licensee employees detected each year through random testing. Recognizing this potential reduction in individuals being detected, the NRC is specifically interested in comments as to whether certain positions critical to the safe operation of a nuclear power plant, such as licensed reactor operators, should be excluded from any reduction of the random testing rate.
Bibliography i
Durbin, N., Moore, C., Grant, T., Fleming, T., Hunt, P., Martin, R.,
Murphy, S., Hauth, J., Wil son, R., Bittner, A., Bramwell, A., Macaulay, J.,
Olson, J., Terrill E., & Toquam, J. (1991).
" Fitness for Duty in the Nuclear Power Industry:
A Review of the First Year of Program Performance and an Uodate of the Technical Issues (NUREG/CR-5784),"
Washington, CC: Nuclear Regulatory Commission...
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Osborne, C.E., & Sokolov, J.J.,
(1990).
" Drug Use Trends in a Nuclear Power j
Facility: Data From a Random Screening Program."
In S.W. Gust, J.M. Walsh, L.B. Thomas. and D.J. Crouch, (Eds,), Drugs in the Workplace:
Research and Evaluation Data, Volume II. NIDA Research Monograph No. 100.
Rockville, MD:
National Institute on Drug Abuse, 25-43.
Stoloff, P.H. (1985).
The Effectiveness of Urinalysis as a Deterrent to Drug Use, p.11, Washington, DC:
Department of the Navy.
Environmental Impact:
Categorical Exclusion The NRC has determine that this proposed rule is the type of action i
described in categorical exclusion 10 CFR 51.22(c)(2).
Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.
l Paperwork Reduction Act Statement This proposed rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). This rule has been submitted to the Office of Management and Budget for review and approval of the paperwork requirements.
Since the proposed rule would reduce the random drug testing rate for licensee employees from 100 percent to 50 percent, public reporting and recordkeeping burden for the collection of information is expected to be.-, _
reduced. The resulting reduction in burden is estimated to average 146 hours0.00169 days <br />0.0406 hours <br />2.414021e-4 weeks <br />5.5553e-5 months <br /> per site, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Send comments regarding the estimated burden reduction or any other aspect of this collection of information, including suggestions for further reducing reporting burden, to the Information and Records Management Branch (MNBB-7714), U.S. Nuclear Regulatory Commission, Washington, DC 20555; and to the Desk Officer, Office of Information and Regulatory Affairs, NE0B-3019, (3150-0146), Office of Management and Budget, Washington, DC 20503.
Regulatory Analysis The Commission has prepared a draft regulatory analysis on this proposed rule. The analysis examines the benefits, cost savings, and costs of the alternatives considered by the Commission. The draft analysis is available for a fee at the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC.
Single copies may be obtained by writing to the U.S. Nuclear Regulatory Commission, Washington, DC 20555.
Single copies of the analysis may be obtained from Loren L. Bush, Jr., Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
The Commission requests public comment on the draf t regulatory analysis.
Comments on the draft analysis may be submitted to the NRC as indicated under the ADDRESSES heading.
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a Regulatory Flexibility Act Certification In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities.
This proposed rule affects only the licensing and operation of nuclear power plants and activities associated with the possession or transportation of Category I material. The companies that own these plants do not fall within the scope of the definition of "small entities" set forth in the Regulatory Flexibility Act or the Small Business Size Standards issued by the Small Business Administration in 13 CFR Part 121.
Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule, and therefore, that a backfit analysis is not required for this proposed rule, because these amendments do not impose more stringent safety requirements on 10 CFR Part 50 licensees.
List of Subjects in 10 CFR Part 26 Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug abuse, Drug testing, Employee assistance programs, Fitness for duty, Management actions, Nuclear power reactors, Protection of information, Reporting and recordkeeping requirements, Sanctions.....
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For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganizaticn Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendment to 10 CFR Part 26.
PART 26 - FITNESS FOR DUTY PROGRAMS i
1.
The authority citation for Part 26 continues to read as follows:
Authority:
Secs. 53, 81,103,104,107,161, 68 Stat. 930, 935, 936, 937, 939, 948, as amended (42 U.S.C. 2073, 2111, 2112, 2133, 2134, 2137, 2201); secs. 201, 202, 206, 88 Stat.1242,1244,1246, as amended (42 U.S.C.
5841,5842,5846).
2.
In s 26.24, paragraph (a)(2) is revised to read as follows:
5 26.24 Chemical Testing.
(a) * * *
(2) Unannounced drug and alcohol tests imposed in a statistically random and unpredictable manner so that all persons in the population subject to I
testing have an equal probability of being selected and tested. The tests must be administered so that a cerson ccepleting a test is irmeciately eligible for another unannounced test.
As a minimum, tests must be acministered on a nominal weekly frequency and at various times curing the.-
day. Random testing of contractor and vendor employees must be conducted at an annual rate equal to at least 100 percent of that workforce. Random testing of licensee emplofees must be conducted at an annual rate equal to at least 50 percent of that workforce.
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Dated at Rockville, Maryland, this For the Nuclear Regulatory Commission, f
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J Samuel J. Chilk, Secretary of the Commission.
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