ML20058K814

Recommends That Commission Approve Amend to fitness-for-duty Rule to Correct Inconsistency Which Permits Licensees to Take Action Against Individual on Basis of Preliminary Test Results

ML20058K814
Person / Time
Issue date:	07/11/1990
From:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
TASK-RINV, TASK-SE SECY-90-240, NUDOCS 9007170014
Download: ML20058K814 (17)

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.ee. ee....eeeeeeeeeeeee RULEMAKING ISSUE l July 11, 1990-(Notation Vote) sEcy-90-24o

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The Comissioners From:

James M. Taylor Executive Director for Operations

SUBJECT:

AMENDMENT TO THE FITNESS-FOR-DUTY RULE

Purpose:

To amend the Fitness-for-Duty (FFD) rule to correct an -

inconsistency which permits licensees to take action against an-individual on the basis of preliminary test results.

Background:

SECY-90-136 informed the Comission that the Tennessee Valley Authority has implemented a. fitness-for-duty program that permits the' Alternate FFD Program Manager at each r.ite to place individuals in a'non-work pay status

after.a preliminary positive drug test result indicates the pretence of cannabinoids, cocaine, or alcohol. The Office of the 'deneral Counsel (0GC) noted that the rule

' contained inconsistent provisions regarding the dissemina-tion and use of preliminary' positive test results:and that

'a case could not be made.-in view of the inconsistency, that TVA had violated the: rule. Since the staff believed that the Comission intended to preclude any licensee management-

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action based on unconfirmed and unreviewed preliminary test results,-unless the individual's condition constitutes a hazard to himself or others, the staff.recomended that the rule be amended to clarify the Comission's intent.

A Staff Requirements Amendment Memorandum, dated May 8, 1990, directed the staff'to prepare a Federal Register notice to solicit public coannents _on the proposed amendment to-10 CFR Part'26.

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-Discussion:

.During its. consideration of 10 CFR Part 26, the Comission

'l determined that the' rule achieved a proper balance betweer safeguarding individual rights and the Comission's responsibility to protect public..ealth and safety. Among m

the many measures that were prescribed to protect individual rights was a prohibition against disclosure of presumptive positive results of preliminary testing to licensee manage-NOTE:

TO BE MADE PUBLICLY AVAILABLE c

oren L Bush

• NRR WHEN THE FINAL SRM IS MADE 492-0944 h q -,,;

AVAILABLE

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The Comission;rs-

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r Ol ment.. During the development of the rule.:the staff did not recomend that the rule contain a specific prohibition 1

against management action in this regard because the staff

. believed the prohibition against. disclosure of presumptive-i positive results of preliminary testing to management provided the same level of protection.

Furthermore', if a worker was impaired or suspected of being impaired, the rule. required removal and permitted return only aftercthe worker.is determined to be fit to safely'and competently-

perform activities covered by the rule.

At' meetings with the nuclear power industry since publica-ution of-the-rule, the' attendees stro'ngly expressed their l'

opinion that in the interest of safety they should be permitted to take action to temporarily remove a worker based on preliminary test results, particularly where psychoactive drugs have been taken or where there is no legitimate medical basis for use:of the drug.

In this-regard, TVA's program does not include removal'for pre-sumptive positives for the use of opiates-(comonly found in many medications, primarily for colds).and amphetamines 5

(commonly found in over-the-counter-diet medications).

1 Preliminary presumptive positive test. results for these.

drugs are most commonly declared negative by the Medical Review.0fficer after reviewing all pertinent information.

The enclosed Notice of Proposed Rulemaking seeks public comment on a proposed amendment to 10 CFR Part 26 that would 1

y prohibit any individual-from being removed or temporarily.

y suspended from unescorted access based solely on unconfirmed

'4 positive initial screening test'results. -The enclosed notice contains a brief discussion of the related issue of the o

reporting of unreviewed test results to management..

The Office of General Counsel has no legal-objections to publishing this amendment as a proposed rule.

. Recommendation: That the Commission:

l 1.

Approve publication of the~ proposed amendment to 10 CFR Part 26 as set forth in the enclosed Federal Register notice.

2.

Certify, in order to satisfy the requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that this rule would not have a significant economic impact on a substantial number of small entities. This certifi-cation is included in the enclosed FRN.

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The Comissionersh

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3. ' Note:

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a..That the notice of proposed rule;naking in' Enclosure "1" 1

will be published in the Federal Register allowing-60 days for public coment.

b. That, in accordance with 10 CFR Part 51, the staff has i

prepared an environmental assessment and a finding of no 1

significant impact which is included in the FRN. The

't proposed rule is insignificant from the standpoint of environmental impact.

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c. This proposed rule does not contain new information-1 collection requirements that are subject to' review by the j

-Office of Management.and Budget. OMB has approved'the information collection requirements through March 31, 1993;-

approval number 3150-0146.

e d.Thatapublicannouncementwillbeissueo(Enclosure 2).

e. That the Subcommittee on Nuclear Regulation of the

. Senate Committee on Environment and Public Works, the q

Subcommittee on Energy and Power of the House Comittee -

on Energy and Comeerce, the Subcomittee on' Energy and -

the Environment of the House Comittee on Interior and Insular Aff(irs, and the Subcomittee on Environment, 1

Energy, and Natural Resources'of the House Government Operations Comittee will be informed (Enclosure 3).

f. That the Office of.Information and Resources Management 9

will send copies of the proposed rule to all affected licensees and other interested persons following j

Comission. approval for publication-of the proposed rule.

1

g. That the Chief Counsel for Advocacy of the Small

.l Business Administration will be informed of the certification and tbr reascas Enr it as required by the Regulator" riexibility Act.

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i f es M. Ta or xecutive Director for Operations

Enclosures:

1.

Notice of Proposed Rulemaking 2.

Draft Public Announcement l

3.

Draft Congressional Letter

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- Commissionersi comments or consent should: be ' prwided'. directly

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Lto-the Office of~thelSecretary by'COBJWednesday, July 25, 1990.'

x Commission; Staff. Office comments, if any,-~shoul'd be. submitted

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to the Commissioners NLT Wednesday, July 18,'1990,- with an infor-s f.mation: copy to.th.e. Office of,the Secretary.

If the_ paper -is:of j

.such-a nature that it requires; additionalt time for analytical.

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. review and. comment, the Commissioners,and'the'Secretarztt should S,

be apprised =-of when comments may;be expecte1.

- DIS'tRIBUTION :.

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- ENCLOSURE 1

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' NOTICE OFcPROPOSED RULEMAKING-MWio 1: t.

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NUCLEAR REGULATORY COMMISSION

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10 CFR PART 26

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RIN 3150-AD61 o

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I FITNESS-FOR-DUTY PROGRAMS AGENCY:

Nuclear Regulatory Commission ACTION:

Proposed rule.

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SUMMARY

The Nuclear Regulatory Commission:is. proposing to amend its regulations applicable to licensees authorized.to construct or operate nuclear-power reactors'to clarify its intent concerning the unacceptability of taking

. action against an individual based solely on preliminary test results. The amendment would prohibit management actions based upon an unconfirmeu positive initial screening test when there is an absence of any other evidence of impairment or an' indication that the individual might otherwise pose a safety hazard.

' DATES:-

Comments should be submitted by (60 days after publication).

Comments received after this date will be considered if it is practical to do so; however, the Commission is able to assure consideration only for comments filed on or before that date.

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, ADDRESSEES:

Submit written comments to:

Secretary, U. S. Nuclear-Regulatory Comission, Washington,: DC 20555,. ATTN: _ Docketing and Services-QL Branch. Coments-may be hand delivered to:

11555 Rockville Pike, Rockville,

. Maryland between 7:45 am and 4:15 pm on Federal workdays. The coments received-i may,be examined at: The NRC Public Document Room at 2120 L Street, NW.

(LowerLevel), Washington,DC.

tI FOR FURTHER INFORMATION CONTACT:

Loren Bush, Reactor Safeguards Branch,.

Division of-Reactor Inspection and Safeguards, Office of Nuclear Reactor Regulation,. U. S. Nuclear Regulatory Comission, Washington, DC 20555, Telephone:

(301)492-0944.

SUPPLEMENTARY INFORMATION:

Background

On June 7,1989, the Nuclear Regulatory Commission published in the Federal Register (54 FR 24468) a new 10 CFR Part 26 to require licensees

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authorized to construct or operate nuclear pnwer reactors to implement a fitness-for-duty program. On January 3, 1990, a licensee informed the

- Commission that it had 1,nplemented its fitness-for-duty program that included a provision for placing individuals in a non-work pay status based upon pre-

'liminary drug test results pending confirmation of these results through further testing and' review.

The NRC staff deterrined that there appeared to be an inconsistency between the licensee's program and 10 CFR Part 26. The licensee contended that its action was based upon a need to assure safety, an objective of the rule. -

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y The0ffice'oftheGeneralCounsel(0GC),advisedthestaffthatthe requirement:in the rule to. prohibit the disclosure of presumptive positive results of preliminary testing to licensee management did not prohibit the

-licensee from permitting non-management personnel from taking action. OGC noted that the~. intent to preclude the use of onsite testing for any purpose l-other than screening specimens for forwarding to a certified laboratory.was not stated in the present rule with sufficient clarity to make a. case against the licensee's use of preliminary ' test results.

1 Discussion j

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L During its consideration of 10 CFR Part 26, the Commission determined that-.

the rule achieved a proper balance between individual rights, the assurance of public health and safety, and protecting the safety of fellow workers. Among.

the many measures that were prescribed to protect individual rights was a l

prohibition ; gainst disclosure of presumptive positive results of preliminary testing to-licensee management. Under its procedures, the licensee in question removes persons from nuclear power property and places them in a non-work pay g

status after a preliminary positive test result indicates the presence of cannabinoids, cocaine, or alcohol. The Commission concludes that the licensee's practice is contrary to the Comission's intent, which is set forth in the responses to public comments accompanying the final rule (paragraphs 11.1.3 L

and 11.2.3 at 54 FR 24481). Therefore, the Comission is proposing to amend 10 CFR Part 26 to make clear that preliminary test results not be used as a a

l basis for management action absent corraborative evidence of impairment or safety hazard.

t In certain' unusual circumstances,.the reporting of unreviewed test resultsL to management may be required by 10 CFR 26.24(e).

In those rare cases when the-MedicalReviewOfficer's(MRO)reviewoffinaltestresultscannotbecompleted in time to meet the requirement to report the test results to licensee manage-ment within 10 days after the initial presumptive positive screening test, the Comission expects the MRO to exercise prudent judgment. The MRO should be informed of initial presumptive positive onsite screening test results if the HHS-certified _ laboratory has not reported within the expected time.

If the MR0 cannot complete the review within' the 10 day period because of = the unavailability of HHS test results or. unavailability of the individual, the report to management should be based or available information.

Any individual who is ' impaired, cr whose fitness for duty may _be question-able because of' a basis other than the result of any drug test, must be removed from unescorted status under the provisions of 10 CFR Part 26.27(b)(1).

' Environmental Impact:

Categorical Exclusion The NRC has determined that this proposed rule is the type of action describedincategoricalexclusion10CFR51.22(c)(2)..Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.

1 Paperwork Reduction Act Statement 4

This proposed rule does not contain a new or amended information collec-tion requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C.

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3501etseq). Existing requirements were approved'by the Office of Management-and Budget; approval number 3150-0146.

i Regulatory Analysis 4

The regulations in 10 CFR Part 26 establish'rsquirements for_ licensees-m, authorized to construct or operate nuclear power reactors to' implement a.

fitness-for-duty program.

This proposed amendment to 10 CFR Part 26 clarifies the Comis'sion's previous position that no action be taken based solely on unconfirmed positive initial screening test results in the absence of-other evidence that the indi-vidual is -impaired or that the individual might otherwise pose a safety hazard.

Regulatory Flexibility Act Certification-i 4

l 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. The companies l

l that;own these plants'do not fall within the scope of the definition of "small-u entities" set forth in the Regulatory Flexibility Act or the Small Business Size' Standards issued by the Small Business Aoni....stration in 13 CFR Part 121.-

l lr Backfit Analysis The NRC has determined that the backfit rule,10 CFR 50.109, does not L

apply to this proposed rule, and therefore, that a backfit analysis is not f.

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- required for this proposed rule,. because these amendments' clarify a previous-Commission position and do not involve any provisions which would impose

'backfitsasdefinedin10CFR50.109(a)(4)(iii).

In addition, this.is a minor modification to a final rule, already published, for. which a backfit analysis was already performed. The indirect costs to workers in this matter was covered by the responses in.the final rule to public comments on the backfit analysis in paragraph 19.2.15 at 54 FR ~24492.

List of Subjects in 10 CFR Part 26 Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug abuse, I

Drug testing, Eirployee assistance programs, Fitness for duty, Management actions, Nuclear power reactors, Protection of information, Reporting and recordkeepino requirements, and Sanctions.

For the reasons set out in the-preamble and under the authority of the Atomic Energy Act of 1954,-as amended, the Energy Reorganization 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:

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Authority:

Sacs. 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, p

5842,5846).

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' -Forthepurposes'ofsec.223,68 Stat.958,asamended(42U.S.C.2273);-

56,26.20,= 26.21, 26.22, 26.23, 26.24, 26.25, 26.27, 26.28, 26'.29_ and 26.80

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are; issued under sec. 161b'and 1, 68 Stat. 948, and 949, as amended.

'(42U.S.C.2201(b)and(i);il 26.70,'26.71, and.26.73 are issued under X

-sec._161,68 Stat.950,asamended[42U.S.C.2201(o)];-

2.

Ini26.24, Paragraph (d)isrevisedtoreadasfollows:

5 26.24 Chemical testing.

(d) Licensees may conduct initial screening tests of an aliquot prior to forwarding selected specimens to a laboratory certified by the Department of Health and Human Services, provided the licensee's staff possesses the necessary training and skills for the tasks assigned, their qualifications are documented, and adequate quality controls are implemented. Quality contro1Lprocedures for initial screening tests by a licensee's testing facility must include the proce! sing of~ blind performance test specimens

. and the submission to the HHS-certified laboratory of a sampling of specimens initially tested as negative.

Access to the results of preliminary tests

_must.be limited to the licensee's testing staff, the Medical Review Officer, the Fitness-For-Duty Program Manager, and employee assistance program staff when appropriate.

No individual may be removed or temporarily suspended from unescorted access based solely on unconfirmed positive initial screening test if, Q.....

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results in the absence of other evidence that the individual is. impaired or

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Ithat_theindividualmight_otherwisepose_asafetyhazard.

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s day of

,1990.

Dated at Rockville, Maryland, this jy

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For the Nuclear Regulatory Comission.

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g Samuel J. Chilk, Secretary of the Comission

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NRC. PROPOSES T0. CLARIFY FITNESS-FOR-DUT'Y REQUIREMENTS' u

The Nuclear Regulatory Comission is proposing to amend its requirements f

governing fitness-for-duty at licensed nuclear power plants.

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The amendment would clarify the Comission's. intent that no' individual may be removed'or temporarily suspended from unescorted access based solely on b

' the unconfirmed positive results of a drug screening test.

I The amendment also would make it clear'that, even in the absence of an unconfirmed positive tests, an individual may be removed or temporarily I

suspended from unescorted access if there is evidence that the individual is impaired _or might otherwise pose a safety hazard.

l The clarifying amendment is being proposed after one licensee advised the NRC, earlier this year, that it had implemented a fitness-for-duty program that included a provision for placing individuals in a non-work pay status on the basis.of a positive but unconfirmed drug test.

I' Written comments on the proposed amendment to Part 26 of the Comission's:

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'egulations should be received by (date). They should be addressed to the r

1 Secretary 'of the Comission, Nuclear Regulatory Comission, Washington, D.C.

20585, Attention: Docketing and Service Branch.

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. IDENTICAL LETTERS T0:

Chairman Bob Graham, Senate

.Subcomittee on Nuclear Regulation ec: Alan K. Simpson Chairman Philip R. Sharp, House, Subcomittee on-Energy and Power -

cc:

Carlos J. Moorhead.

The Honorable Morris.K. Udall, Chairman Subcomittee on Energy and the Environment l

~Comittee on. Interior and Insular Affairs

. United; States House of Representatives Washington,-DC, 20515.

Dear Mr. Chairman:

.The NRC has'sent:to the Office of the Federal Register for publication the

' enclosed proposed amendment to the fitness-for-dut" rule to clarify its intent-concerning the unacceptability of taking action against an individual based'

+

, solely on preliminary test results. The amendment would prohibit management.

. actions: based upon:an uncenfirmed positive initial screening test when there-is an absence of any other evidence of impairment or an. indication that-the individual:might otherwise pose a safety hazard. The Comission's rule' for esteblishing Fitness-for-Duty programs at nuclear power plants was previously-published on June 17,1989 (54 FR 24468)

The notice provides-for a 60-day.

public coment period.

4 Sincerely, Eric S. Beckjord, Director.

Office of Nuclear Regulatory Research cc: Representative James V.'Hansen 4

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'I'.

M ABB ASEA BROWN BOVERI

' * = -

'n September 13, 1990 f.

LD-90-070

~

Docket.No. 70-1100 License No. SNM-1067 Mr.-Charles J. Haughney, Chief Fuel Cycle Safety Branch Division of-Industrial and Medical Nuclear-Safety Office of Nuclear Mnterials

' Safety and Safeguards U..S. Nuclear Regulatory Commissic,n

' Attn :. Document Control Desk Washington, D.

C.-

20555

Subject:

Proposed Enlargement of Fuel Shipping Container-Protective Structure

Dear Mr. Haughney:

q.

'In accordance with a discussion held between Mr. Sean 1

Soong,.of your staff,-and Messers. George Hess and John il

.Conant of ABB Combustion Engineering Nuclear Power on 1

August. 17,'1990, we are. sending this letter to inform you of a' change'to a portion of Combustion Engineering's Windsor Nuclear Fuel Manufacturing Facility.

At the rear of the north wall of the manufacturing building is an outer structure whose principal function is to protect workers l

d and.specialinuclear material shipping containers from the' L

L

elements while the containers are being-handled.

In-the past,.this building was used for handling CE-250-2. shipping:

^

-containers.

l-L Since use of the CE-250-2 shipping container has been a

terminated it is our intent to use the building for

l

. handling.the UNC-2901-shipping. container.

Because of a physical size difference between the CE-250-2 and UNC-2901~

shipping-containers as well'as the method of shipment, it is necessary to enlarge this existing outer structure.

This will be accomplished by laying concrete' footings and foundation, raising.new walls and installing a roof.

The

-enlarged structure will continue to serve the same purpose a

t as the original structure (i.e., protect workers and

' l shipping containers from the elements).

l^

ABB Combustion Engineering Nuclear Power Cornt>uston Engineerog inc 1000 Prmpect Hill Road Tetep%ne (203) 6881911 9009170150 900913 Post Office Box 500 Fax (203) 285 9512 PDR ADOCK 07001100 W'"d' '. conneocui oco9s o500 Telex 99297 COMBEN WSOR C

PDC i

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d' Mr.'. Charles-J. Haughney LD-90-070:

, September:13, 1990-Page 2-4 There is no radiological environmental impact associnted

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withEenlarging th!.s structure,5and the limited; extent of the-required; civil work will'cause no other.significant environmental. impacts.

Appropriate fire; protection will be-Lprovided for the enlarged structure..

--Prior to putting the acdified structurefinto operation,.

Combustion Engineering will-submit'the necessary license amendment-documentation for Nuclear Regulatory. Commission review and approval.

g If I can be of further assistance on this matter,:please<do

,not hesitate to call me or Mr. G.

D. Hess of my staff at (203)-285-5218.

Very truly yours,-

COMBUSTION ENGINEERING, INC.-

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d.

ow-o-n F. Conant anager

. Nuclear Materials: Licensing r

JFC:plm.

cc:

J. Roth (NRC - Region I)

S. Soong (NRC) 1 l'

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