ML20059J727
| ML20059J727 | |
| Person / Time | |
|---|---|
| Issue date: | 07/30/1990 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| References | |
| REF-10CFR9.7 NUDOCS 9009200141 | |
| Download: ML20059J727 (8) | |
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July 30, 1990 e
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MEMORANDUM FOR:
James M. Taylor i
Executive Director for Operations.
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FROM:
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Chilk,. Secretary
SUBJECT:
SECY-90-240 - AMENDMENT TO THE FITNESS-FOR-DUTY RULE
.i This is to advise you that the Commission..(with Commissioners Rogers, Curtiss,. and Remick. agreeing)..has approved the proposed amendment to the Fitness-for-Duty Rule with the attached J
modifications.
Chairman Carr-disapproved, he noted that as J
stated in his vote on SECY-90-136, he believes that in th'.,
interest of safety, it is not inappropriate for licensee management to remove an individual from duty involving nuclear i
power plants based on early indications.of a~ potential problem.
l With final determination by a Medical: Review Officer taking.up to 10 days, it appears only prudent to take the pre.,aution of r
removing the individual until that final determination is made.
The Federal Register Notice should be modified as-noted on the attached pages, reviewed by the Regulatory. Publication Branch, ADM for consistency with the Federal Register requirements and returned for signature.
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(SECY Suspense: 8/20/90) i
Attachment:
As stated cc:
Chairman Carr L
Commissioner Rogers t
Commissioner Curtiss l
Commissioner Remick OGC NOTE:
THE SRM, THE SUlkTECT SECY PAPER, - AND THE VOTE SHEET OF COMMISSIONER CURTISS WILL BE MADE ' PUBLICLY AVA*.LABLE WHEN THE FEDERAL REGISTER' NOTICE IS PUBLISHED
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9009200141 900730 PDR 10CFR t> 4 PT9.,7
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TheOfficeoftheGeneralCounsel(OGC),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 actio 0GC noted that the intent to preclude the use of onsite testing for any purpose 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
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During its consideration of 10 CFR Part 26,.the Comission 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 l
the many measures that were prescribed to protect individual rights was a l
prohibition against disclosure of presumptive positive results of preliminary i
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 status after a preliminary positive test result indicates the prasence of cannabinoids, cocaine, or alcohol. The Comission concludes that the ' licensee's
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practice is contrary to the Comission's: intent, which is set forth in tN responses to public comments accompanying the final rule (naragraphs.11.3.3 and11.2.3at54FR24481). Therefore, the Comission is ropotirg to amend vid 10 CFR Part 26 to make clear that preliminary test resul s not be used as a g
l basis for management action absent corraborative evidence of impairment.or safety hazard...
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In certain unusual circumstancas, 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 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 i
HHS-certified laboratory has not reported within the expected time.
If the MRO cannot complete the review within the 10 day period because of the unavailability
~t of HHS test results or unavailability of the individual, the rep #e&vW ort to management nel kw&-4 should be based on available informatio g
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eedift Any individual who is impaired, or whose fitne s for. duty may be question y=x m &..,. % other than the4 r=="1. e' -- ; festH9s asshil km ypt 18hgab et le 3
t ; t;;t, must be remo from unescorted status under the provisions of 10 CFR Part 26.27(b)(1).
Environmental Impact:
Categorical Exclusion I
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.
Paperwork Reduction Act Statement T'.iis proposed rule does not contain a new or amended information collec.
L tionrequirementsubjecttothePaperworkReduction'Actof-1980-(44U.S.C.
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Existing requirements were approved by the Office of l Management i
and Budget; approval number 3150-0146.
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Regulatory Analysis t
The regulations in 10 CFR Part 26 establish requirements for licensees t
authorized to construct or operate nuclear power reactors; to implement a fitness-for-duty program.
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This proposed amendment to FR Pa 1
mission's previous position that no action be takeg ased solely on unconfirmed positive 4
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 In accor jance with the Regulatory Flexibility Act of 1980, [5 U.S.C.
605(b)), the Comission certifies that this tr't will not have a significant economic impact en a substantial number of small entities. This proposed rule affects only the licensing and operation of nuclear power plants.
The companies that own thu e 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.
t Backfit Analysis l
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 '
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For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);
il 26.20, 26.21, 26.22; 26.23, 26.24, 26.25, 26.27, 26.28, 26.29 and 26.80 t
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are issued under sec. 161b and 1, 68 Stat. 948, and 949, as amended (42 U.S.C. 2201(b) and (1); il 26.70, 26.71, and.26.73 are.ssued under i
sec.161, 68 Stat. 950, as amended [42 U.S.C. 2201(o)].
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Ini26.24, Paragraph (d)isrevisedtoreadasfollow:
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i 26.24 Chemical testing.
t (d) Licensees may conduct initial screening tests of an aliquot prior to forwarding selected specimens to a laboratory certified by the Department of l
Health and Human Services, provided the licensee's staff possesses the' necessary training and skills for the tasks assigned, their qualifications i
are documented, and adequate quality controls are implemented. Quality control proindures for initial screening tests by a licensee's testing facility must include the processing of blind performance test specimens and the submission to the NHS-certified laboratory of a sampling of specimens j
initially tested as negative.
Access to the results of preliminary tests t
must be limited t'o the lit.ensee's testing staff, the Medical Review Officer, the Fitness-For-Duty Program Manager, and employee assistance program staff when appro riste. i, -
individual _ may be removed or temporarily suspended from unescorted access based solely on unconfirmed positive initial screening test 7-
results in the absence of other evidence that the individua? is impaired or that the-individual might otherwise pose a safety hazard.
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Dated at Rockville, Maryland, this day of 1990.
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1 For the Nuclear Regulatary Commission.
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i Samuel J. Chilk, i
Secretary of the Comunission
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l NRC PROPOSES TO CLARIFY FITNESS-FOR-DUTY REQUIREMENTS t
I The Nuclear Regulatory Comission is proposing to amend its requirements l
governing fitness-for-duty at licensed nuclear power plants.
i The amendment would clarify the Comission's intent that no individual may be removed or temporarily suspended from unescorted access based solely on the unconfirmed positive results of a drug screening test.
t The amendment also would make it clear that, ""-- ia +'- d::r: ;f
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impaired or might otherwise pose a safety hazard, hys M r
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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-wort pay status on the basis of a positive but unconfirmed drug test.
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Written coments on the proposed amendment to Part 26 of the Commission's regulations should be received by (date). They should be addressed to the j
Secretary of the Comission, Nuclear Regulatory Commission, Washington, D.C.
j 20585, Attention:
Docketing _ and Service Branch.
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IDENTICAL LETTERS 70 l
l Chairman Bob Graham Senate Subcomittee on Nuclear Regulation
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cc: Alan K. Simpson i
Chairman Philip R. Sharp, House i
Subcomittee on Energy and Power cc: Carlos J. Moorhead i
1 The Honorable Morris K. Udall, Chairman i
Subcommittee on Energy and the Environment 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-duty rule to clarify its intent con the unaccer ty of taking action against an individual based 4
eyo prelim,ir4a esults.
The amendment would prohibit management actions ased upon an unco irmed positive initial screening test when there 4
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 establishing 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 r
public coment period.
Sincerely, l
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Eric S. Beckjord, Director.-
Office of Nuclear. Regulatory Research cc:
Representative James V. Hansen L
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