ML20059G406

Proposed Rule 10CFR26, Fitness-For-Duty Programs. NRC Proposing Amend to Rule Prohibiting Mgt Actions Based Upon Unconfirmed Positive Initial Screening Test in Absence of Evidence of Impairment

ML20059G406
Person / Time
Issue date:	08/27/1990
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
Shared Package
ML20059G403	List: ML20059G402 ML20059G406
References
FRN-55FR35648, RULE-PR-26 CCS, PR-900827, NUDOCS 9009120290
Download: ML20059G406 (12)

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NUCLEAR REGULATORY COMMISSION--

10 CFR PART 26 RIN 3150-AD61 FITNESS-FOR-DUTY PROGRAMS AGENCY:

Nuclear' Regulatory Comission ACTION:

Proposed rule

SUMMARY

The Nuclear Regulatory Comission is. proposing to amend its regulations applicable to licensees authorized to construct or operate nuclear power reactors to clarify its intent concerning thesunacceptab'ility of 'taking action against an individual based solely on preliminary test results.- ~The amendment would prohibit management actions based upon an unconfirmed 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 Comission"is able to assure consideration only for coments filed on or before that date.

9009120290 90oegg PDR ORG NGPZ PDC

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-ADDRESSEES:

Sub;ait written comments to:

Secretary,-Ur S. Nuclear-Regulatory Commission, Washington, DC, 20555, ATTN:- Docketing and -Services.

Branch. Comments may be hand delivered to: :11555 Rockville' Pike', Rockville, Maryland between 7:45 am and 4:15 pm on Federal workdays..The comments received?

1 l-may be examined at:. The NRC Public Document Room at 2120 L ' Street; NW.-

j (Lower Level), Washington,;DC.

l FOR FURTHER INFORMATION CONTACT:

LorenBbsh,'ReactorSafeguardsBranch, t

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

(301)492-0944.

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SUPPLEMENTARY INFORMATION:

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Background

OnJune'7,1989,theNuclearRegulato'tyfCommis's' ion.publisheddin.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 power reactors totimplement a-fitness-for-duty program. On January 3,1990, a < licensee informed the

t Commission that it had implemented 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.

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The NRC staff determined that there appeared to' be an1 nconsistency-i 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 the1 rule.

The Office of the General Counsel (OGC), advised the staff-that the-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 _ against an.

employee on the basis of unconfirmed positive initial l screening _ test results.

0GC noted that the intent to preclude the;use of-onsite testing,for anyL purpose other than screening specimens for forwarding to a certified' laboratory,was not stated in the present rule with sufficie'nt'claritytto make a case against the licensee's use of preliminary test results.

Discussion-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 indiYidual' rights was a prohibition against disclosure of presumptive positive results of; preliminary testing to-licensee management. Underitsprocedures,thelicenseein{ question removes persons.from nuclear power property and places _ them in a non-work pay status after a preliminary positive test result indicates the, presence of

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,i cannabinoids, cocaine, or alcohol. The Comission concludes that the' licensee's practice is contrary to the Comission's intent, which is set forth in the -

responses to public comments accompanying 1the final = rule (paragraphs 11.1.3.

and11.2.3at54FR24481).

Therefore, the Comission is proposing to amend 10 CFR Part 26 to make clear that preliminary test results should not be used as a basis for management action absent.corraborative evidence of' impairment or safety. hazard..

In certain unusual circumstances, the reporting of unreviewed test results to management may be required by 10 CFR 26.24(e).

In those rare cases when the Medical Review Officer's (MRO) review of: final' test results cannot be completed

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in time to meet the requirement to-report the test.results to licensee manage-ment within 10 days af ter the initial presumptive positive screening test, the Comission expects the MRO to exercise prudent judgment. ' The'MR0 should be informed of initial presumptive positive onsite screening test results if the t

HHS-certified laboratory has not reported within-the expected time.

If the MR0' a

cannot complete the review within the 10 day period because of the unavailobility r

of HHS test results or unavailability of the. individual, the report to'managenent a

should be based on available information and should make-it clear whether or not the screening test results have been confirmed by-the HHS-certified laboratory, t

Licensees are reminded that any. individual.who is-impaired, or whose fitness for duty may be questionable for reasons independent of or in addition j

to drug testing, must be removed from unescorted status pursuant to the provisiens of 10 CFR Part 26.27(b)(1).,

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Separate Views ~ of: Chairman Carr on Proposed Amendment to Part 26-

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I believe this proposed amenoment to Part 26'will unculy restrict plant.

licensees from taking prudent action.in those cases 51n which an-initial; screening test is positive for proscribed substances.

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10 CFR 26.27(b)(1) currently requires licensee action to remove indiviouals1 i

frem activities within the scope.of Part'26 in those cases in which the indivioual's fitness may be questionable.

Given that it may take up to 10 days l

to receive confirmatory test results and to complete eval'uation'by a Medical l

Review Officer, it is not-inappropriate,.in rqy view,- for licensees to temporarily remove personnel from activities within the power plant pending confirmation.

This is'the prudent course of action which better. addresses the goal of' protecting public health and safety-and, as our Office of'the General Counse1~has2 advised -

l l-i it is a practice that is not prohibited by the rule-initially adopted by the Commission.

1, therefore, do not support this emendment which would nrohibit thE option of temporarily removing an incivioual from activities in the power plant in I

the event a screening test for proscribed substances is positive.

This option is permitten under the current Part 26 and I believe it should remain.

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u Separate Views Ot Commissioner Remick On Proposed Amendment To.Part 26 i

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1. agree with Chairman Carr'sl separate views to the extent'that I believe;

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p that this proposed amenoment to Part 26 could unduly' restrict plant licensee 2.

from taking action where they consider _ it prucent to do so in those ~ cases' in which an initial screening test is pcsitive for proscribed' substances.

In nty earlier vote on this matter,:I indicated that I do not believe that the NRC' should, intrude into this area of rariagement prerogative. However, inasmuch as I

the Comission majority decided to develop this proposed araenorent to Part 26, I support its issuance for public coment' in order to obtain broader pcints of t

view on the matter.

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Separate Views.0f Comissioner Rogers On Proposed Amendment To Part'26-I believe the amendment is necessary because of the appreciable number of positive indications that already have been produced-in'in.itial~ tests by

1) the ingestion of some ord'. nary food products an' 2) the use of-certain d

over-the-counter medicat'ons, or may.arise in'the future:from a testing practice error, and tecause the: damage done to an individual's' reputation L

and career future resulting from imediate removal from normal duties -often lingers long after the inoividual has been exonerated and. returned to duty, t

It is important to recognize that the random testing program which this amendment addresses is not testing-for-cause, which is based on;some evidence-of chemical impairment. The results of randomly administered tests.in general are not available immeciately but only after a day or more, and i

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- therefore by themselves are not useful in identitying and:imediately exclucing frem the work place individuals who.are chemically impairen. Random (tests discourage even the casual use of substances which 'can impair ons's physical' and mental performance, and provide a mechanism for identifyihg.probabic l

users of prohibited substances who can then be either positively identitiec r

m or cleared.

Incividuals positively identified are-then subject to imediat9-exclusion from the work place.

I also note that, for some drugs, for example certain opium-related drugs, Part 26 does not permit even a positive-confirmatory test resul_t to be used as the sole determinant for takhg action;6 gainst an_ individual 10ther r

evioence of drug use is required to support a positive indication, even from

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a confirmatory test.

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Finhily, I believe this amendment is sufficiently prudent because it does-not absolutely prchibit.the option of temporarily removing an individual from.

activities in the power-plant. The revision,Lin section 26.24(d), explicitly states: "No individual may be removed or temporarily suspended f:om-unescorted access bassa solely on unconfirmed positive. initial screening test results,i,n the absence of other evidence that the individual is impaireo or that the individual might otherwise pose a safety hazaro" (emphasis coded). The rule:

does not limit the type of evidence that may be used to make. this determination,-

-f ano evidence can include behavior observations, physical evidence, or.other corroborating information.

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1. support the issuance for public coment:of this proposed amendment to R

Part 26.-which I believe provides sufficient opportunity. for taking the(action necessarylto protect public health and safety, while at-the 'same time offering j

better protection of individuals against the' serious-possible consequences of

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a false accusation of drug use.-

Additional Views OfiConnissioner Curtiss On Proposed' Amendment to Part 26 4

Our fitness-for-duty rules require-that: initial-positive screening : test results.be confirmed prior to their being'provided to licensee management for action against the individual who tested positive.

This requirementtwas imposed so that the Commission's rules = comply with U.S. Department.of Health i

ano Human Services guidelines to this effect and to prov' ice a sdfeguard.for individuals who are required to-undergo random. drug testing pursuant to our-i fitness-for-duty regulations. Despite this requirement, licensees are free--

indeed, in iny view, are required--to remove or temporarily' suspend an individual where there is other evidence that-the individual is impaired or'might. pose a L

safety hazard. The proposen changes' to Part 26 -make this clear.

For that reason, I disagne with Chairman Carr's and Cosmissioner Remick's views that the proposed amendment "could unduly restrict plant licensees from:taking action where they consider it prudentL to do so."

I believe that the proposed amendment will, 16 fact, help to clarify when. health and safety. considerations-require early action against an individual.

I also concur in the remarks of Connissioner Rogers.

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a Environmental Impact:- Categorical Exclusion-

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.f The NRC has determinea that this proposed; rule is the type of action

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I describedincategoricale'xclusion10CFR51.22(c)(2).?Therefore,neither'

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an environmental impact statenent nor an: environmental assessment has been l-prepared for this proposed rule.

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Paperwork Reduction Act Statement This proposed rule dces not--contain a new or arnended information collec.

tion ' requirement subject to the Paperwork. Reduction Act of 1980 (44 U.S.C.

3501 et seq).

Existing requirements were' approved by the'0ffice of' Management and Budget; approval number 3150-0146.

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Regulatory Analysis The regulations-in 10 CFR Part 26 establish. requirements for licensees -

authorized to construct or operate nuclear power reactors to-implement ~a c

fitness-for-cuty program.

This proposed amendment to 10 CFR Part 26 clarifies the Commission's previous ' position that no action should.be' taken against an indiviaual based solely on unconfirmed positive initial screening test results.in the absence-of other evidence that the individual is impaired or that the individual'might.

Otherwise pose a safety hazard.

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4 Regulatory Flexibility Act Certification

In accordance with the Regulatory Flexibility ~ Act of'1980,- [5 U.S.C.

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-605(b)], the Commission certifies that'this rule will not have a significant

.t economic impact on a substantial n-umber of saell. entities. This proposeo rule affects only the licensing and operation of nuclear power-plants. The companies that own these plants'do not fall within' the, scope of the definition of "small 4

entities" set forth in-the RegulatoryL Flexibility Act or the'Small Business Size Standards issued by the small Eusiness: Administration in 13 CFR ~Part-121.

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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 bacidio.nalysis is not required for this proposed rule, because these,amenduents clarify a previous Commission-position and do not involve'any provisions which would-impose-backfitsasdefinedin10CFR50.109(a)(4)(iii).'In' addition,_thisiscaminor nodification 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.

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List of Subjects in -10 CFR Part 26 1

Alcohol abuse, Alcohol testing, Appeals, Chemical testing Drug abuse, t

Drug testing, Engloyee assistance programs, Fitness for duty, Management actions, Nuclear power reactors, Protection of information, Reporting and 1recordkeeping requirements, and Sanctions...

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For the reasons set out in the preamble and under the authority of the-1 Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of.1974L l

as asanded, and 5 U.S.C; 553, the NRC is proposing to adopt the following i

amendment to 10 CFR Part 26.-

I Part 26 - Fitness-For-Duty Programs-t 1.

The authority r.itation 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. 1247;, 1244, 1246, as' amended (42'U.S.C.5841,-

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5842,5846).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);

l il 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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xi are issued under sec.161b and 1, 68 Stat. 948,-and 949, as amended

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

sec.161, 68 Stat. 950, as amended [42 U.S.C. 2201(o)].

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In 5 26.24, Paragraph (d) is revised to read as follows:-

$ 26.24 Chemical testing.

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(d) Licensees may; conduct initial screening tests of an aliquot prior;to-1

. forwarding selected specimens _to a. laboratory certified by; the Department 'cf:

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Health and Human Services, provided the' licensee's staff possesses the.

necessary training ano skills for the-tasks ' assigned, their qualifications :

p-are documented, and adequate quality _ controls;are implemented.- Quality

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control' procedures for initial. screening tests by' a: licensee's-testing-facility must include the. processing of blind' performance test specimens

.i and the submission to the HHS-certified l' boratory of a sampling of specimens a

initially tested as negative. Access to the results of preliminary test-must be limited to the licensee's testing staff, the Medical Review Officer, N

the Fitness-For-Duty Program Manager, and' employee assistance program. staff when appropriate. No individual may:be removed or temporarily suspended:from h

unescorted access based solely"cn unconfirmed positive initial-screening test

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results in the absence of other evidence that,the individual is. impaired _or-that the individual might otherwise pose a safety hazard..

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Dateo at Rockville, Maryland. 'this day ofS

/,1990.

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$r the.Ndlear Regu,latory _Comission.

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amuel J.

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I Secretary o f the Comission i

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