ML20138G284

Requests Review of Encl Final Rule Re Fitness for Duty for Personnel W/Unescorted Access to Protected Areas of Nuclear Power Plants.Concurrence &/Or Comments Requested by 830523

ML20138G284
Person / Time
Issue date:	05/13/1983
From:	Goller K NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES)
To:	Cunningham G, Harold Denton, Deyoung R NRC OFFICE OF INSPECTION & ENFORCEMENT (IE), Office of Nuclear Reactor Regulation, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
Shared Package
ML20138G271	List: ML20138G266 ML20138G284 ML20138G327
References
FOIA-84-827 NUDOCS 8512160281
Download: ML20138G284 (59)

Text

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k t 'a TED STATES NUCLEAR REGULATORY COMMISSION

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}!AY t 3 1983 11EMORANDUM FOR: H. enton, Director, NRR -

eYoung, Director, IE' A 08 G. Cunningham, Director, ELD

[1 g J. Davis, Director, NMSS J. Felton, Director, DRR cA.

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-w. - J. Fouchard, Director, OPA j

" - ~FROM:- ~ ~ - Karl R. Goller, Director Division of Facility Operations Office of Nuclear Regulatory Research -

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SUBJECT:

FINAL RULE CONCERNING FITNESS FOR DUTY FOR PERSONNEL WITH UNESCORTED ACCESS TO PROTECTED AREAS OF NUCLEAR POWER PLANTS Please review the enclosed final rule on fitness for duty for personnel with unescorted access to protected areas of nuclear power plants, and provide me with your concurrence and/or comments by close of business May 23, 1983. .

1.

Title:

Final Rule Concerning Fitness for Duty for Personnel with Unescorted Access to Protected Areas -

2. Task Leader: Thomas G. Ryan, HFB/DF0/RES

3. Task No.: HF-129-1

4. Cognizant Individuals: R. Benedict, NRR T. Allen, NMSS L. Bush, IE T. Dorian, ELD

5.

Background:

The Commission has indicated that a rule is needed to require licensees to prepare and implement written procedures providing reasonable assurance that all persons with unescorted access to protected areas of nuclear power plants, while in those areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty. This indication was provided by approval

. to publish a proposed " fitness for duty rule" for comment, which was published in the Federal Register on August 5,1982. On January 20, 1983, a revised O .

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~, . n. Lenton R. DeYeung G. Cunninghaa J. Davis J. Felton J. Fouchard 2 rule, responding to public comments, was submitted to appropriate NRC Divisions and the Regional Offices for review and concents. Subsequently, on March 21, 1983, a' final rule package was submitted to appropriate NRC

. - - - Headquarters Offices for concurrence and/or comments. The revised final fitness for duty rule, presented in the enclosure, resulted from consideration of Office comments and guidance from the Director, RES.

Please note that the EDO has directed that this is to be a generally worded

._ _ _ , ,~ _. rule, as in the enclosure, and that there will be no prescriptive guidance accompanying the rule. Any such guidance, initially at leact, will be

. . ,, _ _ - .provided by the nuclear utility industry and its organizations (EPRI, INPO, etc) whicn have active programs in this area.

Karl R. Goller, Director Division of Facility Operations Office of Nuclear Regulatory Research

Enclosure:

Commission paper on Final Rule Concer:. n2 Fitness for Duty, for Personnel with Unescorted ,

Access to Protected Areas cc: V. Stello, CRGR E. Blackwood, CRGR R. Fraley, ACRS Region I Administrator J. O'Reilly, Region II Administrator J. Keppler, Region III Administrator J. Collins, Region IV Administrator R. Engelken, Region V Administrator a

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For: The Commissioners

.From:~ . ,_ William J. Dircks Executive Director for Oper'at' ions

Subject:

FINAL RULEMAKING CONCERNING FITNESS FOR DUTY FOR PERSONNEL WITH UNESCORTED ACCESS TO PROTECTED AREAS

Purpose:

To obtain Commission approval to publish a final rule in-the Federal Register which would require development and implementa-tion of written procedures providing reasonable assurance that personnel with unescorted access to protected areas of nuclear power stations, while in those protected areas, are fit for duty.

Licensees issued operating licenses under 10 CFR 50.21(b) or 50.22 will be required to develop written procedures acceptable to the NRC within nine months after the effective date of the rule, or the date of issuance of an operating license, which-ever is later. ,

Background:

On August 5, 1982, the Commission published for comment (47 FR 33980) a proposed rule amending its current regulation 10 CFR 50.54, " Conditions of Licenses" to require licensees to develcp and implement written procedures concerning fitness for duty.

(See Enclosure "G" for Public Announcement of proposed rule.)

ADM sent copies of the proposed rule to all affected licensees and other interested persons.

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Seventy-three responses containing 310 comments were' received '

(see analysis in Enclosure "0"). Approximately forty; percent of the respondents favor the rule. The remainder question the necessity for the rule, stating' that licensees are aware of the fitness for duty issue arid are taking appropriate remedial action. Included,in this latter group are 22 of 36 utilities x i

responding, eight of 10 utility suppliers responding, and six of seven private citizens identified with the nuclear industry.' t Approximately.one-thirofof the comments involve socioeconomic and implementation issues. ' Recommendations were received for changes in the rule involving its wording, scope, and persons affected.

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Contact:

T. G. Ryan, RES ,

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t O 6 The Commissioners 2 A total o'f 102 comments were received in response to five specific questions posed by the Commissioners in the Federal Register notice. Nineteen respondents are in favor of the Commission establishing specific fitness for duty criteria; three respondents feel that these criteria should be established by the individual licensees. Twenty-seven respondents comment that the Commission.

should not specify specific methods (e.g., breath testers, psycho-logical tests) for implementing the " Fitness for Duty" rule. Te'n' .

respondents favor limiting the rule to vital areas of the plant;

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five favor its application in.all protected areas. Thirty-three respondents favor extending the rule to NRC personnel; two do not

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favor such an extension. Three respondents comment that the NRC shuuld not establish specific blood-alcohol level limits; one respondent favors NRC establishing limits but does not recommend a specific level.

The Federal Register notice for the final fule (Enclosure "A")

includes a brief summary of major issues raised in the comments received. Enclosure "0" provides a detailed discussion and resolution of all public comments.

The final rule contained in.Enclos e "A" includes coverage of NRC personnel based on the arguments that t?.* utility is ultimately responsible for the behavior of all persons with unescorted access to its facility, and the NRC has no way of gup anteeing that its personnel resident at nuclear power plants, or visiting those plants, who have been granted unescorted access, will always be fit for duty. Licensees would be expected to limit their imple-mentation of the rule with regard to NRC personnel to those proce-dures they exercise for their own employees arriving for duty or while on duty. In the event that a licensee questions the fitness for duty of an NRC employee, the licensee will be expected to contact an appropriate NRC office or official for guidance. The licensee would not be expected to process NRC personnel through fitness for duty actions, punitive or nonpunitive, established for licensee personnel. This approach is different, but not

, incompatible, with the approach being taken on the " access author- ,

ization" rulemaking. In that case, the staff recommended position '

is that authorization for NRC personnel to have unescorted access to a licensed facility should not be subject to a personal back- -

ground investigation and approval by the licensee. That function can and is provided by the NRC. Fitness for duty, however, is a transitory situation that must be determined on an ongoing basis and therefore must be left to the licensee. It is anticipated that a similar process will be followed with regard to licensee contractors' personnel and with regard to personnel from other government and private sector agencies who might be granted unescorted access to protected areas by the licensee.

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75; Commissioners 3

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Theruleaisore~tainstheword" protected"ratherthanusingthe term " vital" to describe affected areas of the plant. Selective application of the rule to only persons with unescorted access to vital areas would be impractical, since implementation of the rule

~" will occur at the entraree to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital 1 areas through assistance or coercion of persons with unescorted access to vital areas, especially if under the influence of alcohol

---_ or other mind altering and mood changing drugs.  ;

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Finally, the rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and

, techniques for determining fitness for duty (e.g., breath testers, psychological tests) taking frito consideration circumstances unique to its facility. However, in order to facilitate enforcement of -

the rule, written procedures developed by licensees will be expected to respond to the following nominal guidelines: (1) a statement of responsibilities of program coordinator, managers, supervisors, and employees who come in contact with persons '

with unescorted access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet the criteria for alcohol / drug abuse or emotional instability; (4) an administrative procedure for processing individuals who refuse assistance and/or who wish ,

to exercise their appeal rights; and (5) training provisions for all personnel and management to ccquaint them with the licensee's fitness for duty procedures. Additionally, an industry task force staffed by representatives from the Institute of Nuclear Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

Discussion: The NRC does not have regulations which specifically address use of alcohol and other drugs or the broader issue of fitness for duty of persons with unescorted access to protected areas at nuclear power stations. Since operation of a nuclear power sta-tion by personnel not fit for duty could degrade the licensee's ability to operate the facility in a safe manner, development of a requirement concerning the determination of fitness for duty with respect to the consumption of alcoholic beverages, use of other drugs, and mental or physical impairments which could affect a person's faculties in a way contrary to safety is necessary to protect the health and safety of the public. ,

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The subject final amendment will require that licensees operating facilities licensed under 10 CFR 50.21(b) or 50.22 establish and implement adequate written procedures duigned to provide reasonable assurance that all persons with unescorted access to protected areas,

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The Commissioners 4 while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty.

Personnel would be considered unfit for duty if their faculties

. were affected in a way contrary to safety by substances such as

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alcohol or other drugs. Additionally, the phrase ".. . or other-wise unfit for duty..." is intended to require the licensee to consider other factors when determining an individual's fitness for duty, such as the effects of fatigue, stress, illness, and

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4n-- physical impairments. --

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Consideration was given to incorporating this " Fitness for Duty" rule into the draft proposed revision to 10 CFR 73.56 (Access Authorization Rule). Because of the different orientations of the two rules, i.e., trustworthiness (S 73.56) versus fitness

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(S 50.54), and the need to rapidly establish a regulatory basis from which to address the fitness for duty issue, the decision was made to keep the two rulemakings separate, at least initially.

After gaining experience from the implementation and use of these rules (e.g., 2-3 years), the staff will reconsider whether these rules should be combined or coupled in some way. Additionally, the staff considered extending the rule to nuclear power plants under construction. It was determined by the staff that these plants need not be included in the rule since construction presents

' no potential adverse effect on the public health and safety due to a nuclear release. Additionally, government and industry quality assurance programs at construction sites would be expected to minimize the potential latent effects of poor workmanship due to non-fitness for duty, on operating plant safety.

Recommendations: That the Commission:

1. Approve publication of the final rule as set forth in Enclo-sure "A", to amend 10 CFR 50.2 and 50.54 by requiring that licensees operating facilities licensed under 10 CFR 50.21(b) or 50.22 establish and implement adequate written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not (1) under the influence of alcohol, (2) under the influence of any other drugs that could affect their faculties in any way contrary to safety, or (3) other-wise unfit for duty because of mental or physical impairments which could affect their performance in any way contrary to safety.

2. In order to satisfy the requirements of the Regulatory Flexi-bility Act, 5 U.S.C. 605(b), certify that this final rule will not have a significant economic impact on a substantial number of small entities. This certification is included in the enclosed Federal Register notice.

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• 1 The Commissioners 5

3. Note': '

a. That, in accordance with 10 CFR 51.5(d)(3) neither an environmental impact statement nor a negative declara-tion need be prepared in connection with this rulemak-ing action since the amendment is nonsubstantive and

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insignificant from the standpoint of environmental

.. impact.

. . . ,_;. ,_ b. That the Subcommi.tt.ee on Nuclear Regulation of the Senate Committee on Environment and .Public Works and

.--- the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce will be informed. -

c. That ADM will send copies of the final rule to all affected licensees and other interested persons follow-ing Commission approval.

d. This rule contains information collection requirements that were reviewed and approved by the Office of Manage-ment and Budget. ___

e. That a public announcement will be issued (Enclosure "G").

f. A Regulatory Analysis is attached as Enclosure "B".

g. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and the reasons for it as required by the Regulatory Flexi-bility Act.

Scheduling: Recommend affirmation at an open meeting.

William J. Dircks Executive Director for Operations

Enclosures:

"A" - Federal Register Notice of Final Rulemaking "B" - Regulatory Analysis "C" - Analysis with Respect to Periodic Systematic Review of Regulations "D" - Resolution of Public Comments on Rule Changes to 10 CFR 50.54

. "E" - Proposed Rule on Fitness for ,

Duty (FR 08/05/82) A ff,jf "F" - Letters to Congress -

"G" - Public Announcement .

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4 h mi ENCLOSURE "A" O

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NUCl. EAR REGULATORY COMMISSION 10 CFR Part 50 Personnel with Unescorted Access to -

Protected Areas: Fitness for Duty

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- AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Commission is amending its regulations to require that certain licensees establish and implement written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty. The Commission has approved this rule because of a concenn that certain persons could become unfit for duty due to the effects of substances such as alcohol or other drugs and, thereby, their performance could adversely impact the health and safety of the public. The result of the rule will be the implementation of fitness for duty procedures industry-wide that are designed to provide greater assurance of safer operation of licensed facilities. Licensees issued operating licenses under 10 CFR 50.21(b) or 50.22 will be required to develop and implement adequate written proce-dures within nine months after the effective date of the rule, or the date of issuance of an operating license, whichever is later.

EFFECTIVE DATE:

FOR FURTHER INFORMATION CONTACT: Thomas G. Ryan, Office of Nuclear Regulatory.Res. orch, U.S. Nuclear Regulatory Commission, Washington, D.C.

20555, telephone (301)443-5942.

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_ . 144-617 1 -

En*jlosure"A" b -

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SUPPLEMENTARY INFORMATION: The Commission recognizes alcohol and drug abuse to be a social, medical, and safety problem affecting people in almost every indusi.ry and occupational group. For example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S.

industrial accidents involve alcohol, at an annual cost of $12-15 billion.

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Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcohol and drug abuse, as well as other emotional and

1. 1_._ psychological factors, are also prevalent in the nuclear industry.

_ _ .. Prudence, therefore, requires that appropriate precautionary measures be imposed to reduce the probability of a person under the influence of alcohol, drugs, or otherwise unfit for duty either causing an accident or decreasing the effectiveness of the response to an accident.

Alcohol and drug abusers' job performance ~can be expected to b'e~

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negatively affected due to the presence of chemicals in their blood stream.

For example, 4 ounces of alcohol in the blood stream of a 165 pound male requires approximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize. This is one reason other regulatory agencies (e.g., U.S. Department of Transportation) mandate specificperiodsofabstinence(e.g.,4or8 hours)forinterstatetruck drivers, commercial airline pilots, etc., prior to coming on duty.' Drugs other than alcohol such as cocaine and hashish require as much as 24-72 hours to metabolize.

A recent Tennessee Valley Authority (TVA) 1979 Report on its Alcohol

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and Drug Dependency Program states that the program served 350 employees during that year (one out of every 143). TVA estimates that.its annual cost due to alcohol abuse alone is approximately $18.5 million. An NRC Alcohol and Drug Dependency Program official estimates that the Commission program serves about one of every 100 employees annually. As recently as mid-1981 approximately one-third of the Edison Electric Institute (EEI)

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member companies operating nuclear stations had no programs to deal with this issue. More recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05, " Increasing Frequency of Drug-Related Incidents," reports a steadily increasing number of drug related arrests and terminations being reported by the nuclear industry since 1978. The Commission has determined, therefore, that a regulation is necessary.which would require licensees l, to establish and implement adequate written procedures to provide reasonable ,

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[7590-01]

assurance that all persons with unescorted access to protected areas, while in those protected. areas, are not under the influence of alcohol, other drugs, or othe mise unfit for duty.

The rule (amendment to 10 CFR 50.54) will apply to all persons, including NRC personnel, with unescorted access to protected areas in

, - ~ facilities of licensees issued operating licenses under 10 CFR 50.21(b) or 50.22. This category of personnel was chosen because any person with unescorted access to a protected area may adversely affect the health

"" ~ and safety of the public through an unobserved act, whether intentional

-or inadvertent.

Persons would be considered unfit for duty if theirl faculties were affected in a way contrary to safety by substances such as alcohol or

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other drugs. Additionally, the phrase ". . .or othemise unfit for duty. . . "

which is included in the rule, is intended to require that licensees con-sider the effects of other factors such as fatigue, stress, illn'ess, and physical impairments when determining an individual's fitness for duty.

The rule will require licensees ~ operating commercial and industrial facilities licensed under 10 CFR 50.21(b) or 50.22 to establish and imple-ment procedures to assure that personnel with unescorted access to protected areas are fit for duty.

At this time, establishment of specific criteria to be used to deter-mine fitness for duty and specific methods of implementation of this requirement are being left to the licensee. This will allow each licensee to develop procedures which take into consideration not only fairness to, and due process for, its employees, but also any conditions or circumstances unique to its facility. Therefore, the rule is broadly worded.

On August 5, 1982, the NRC published in the Federal Register (47 FR 33980) the proposed " Fitness for Duty" rule amending SS 50.2 and 50.54'of 10 CFR Part 50. A total of 73 responses containing 310 comments were receivea, all of which were evaluated in developing the final rule.

The following discussion highlights the major issues raised in the com- i ments received and their resolution (comments received and a more complete

, discussion.of their resolution are available for review in the Commission's Public Document Room at 1717 H Street NW., Washington, D.C. 20555).

Comments were received on 16 issues grouped under the following

, four, headings: -

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1. Overall agreement or disagreement with the rule, citing utility awareness or non-awarene,ss of, and action taken to. resolve, the fitness for duty issue;

2. Socioeconomic issues (legal, union, monetary cost, morale) which ,

might be raised if the rule is promulgated;

3. , Implementation issues which should or should not be resolved prior to issuance of the final rule (e.g. , definition of terms, use of

'_ breath testers and other diagnostic techniques, impairment standards); and

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Recommended changes in the proposed rule (i.e. , inclusion of

.,.. _ _ -.NRC personnel, application to protected versus vital a'reas of the power station, guarantees of effectiveness, recordkeeping).

Approximately two-thirds of the respondents disagreed with the need for a rule, stating in essence that: (1) the utilities are aware of the -

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fitness for duty issue and are taking appropriate remedial action, (2) the NRC has not established a sufficient need for the rule, and (3) the rule should be part of a draft proposed 10 CFR 73.56 " Access Authorization" rule. Included in this group are 22-of 36 utilities responding, eight of 10 utility supplier responding, and six of seven private citizens identified with the nuclear industry. .

The Commission has determined that there is sufficient evidence to indicate that the alcohol and drug issue touches the nuclear utility industry. Therefore, the Commission is issuing a broad regulation which allows each licensee to develop written procedures that take into con-sideration not only fairness to, and due process for, its employees, but also any condition or circumstance unique to its facility. -

Several respondents commented that the development and implementa-tion of " fitness for duty" procedures would cause the licensee legal- and union-related liabilities, significant monetary costs, and would have a

~ deleterious effect on employee morale. The Commission believes the.

licensee, its legal counsel, and. unions can resolve internal legal and union issues. Fitness for duty programs are currently being imple-mented without significant legal or union liabilities by almost all Federal and State government agencies, and the majority of regulated and non-regulated U.S. i'ndustries. Secondly, monetary costs should be minimal for utilities which currently have in operation'some form of fitness for

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[7590-013 duty program (as often claimed by the utilities responding to the public announcement). , , . ,_

Comments concerning rule implementation issues such as definition of terms, use of diagnostic tools such as breath testers, or establish-ment of fitness for duty standards were received from 58 of 73 respond-ents. Mos.t of these expressed a need for definitions and standards, while objecting to the use of breath testers. As stated above, the Commission believes that a broadly worded rule is needed which allows the licensee to develop specific standards and criteria for fitness for duty.

, . - - - --The rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and techniques for determining fitness for duty (e.g. , breath testers, psychological tests) taking into consideration circumstances unique to its facility. However, in order to facilitate enforcement of the rule, written procedures developed by licensees will be expected to respond to the following nominal g'idelines:

u (1) a statement of responsibilities of program coordinator, managers, supervisors, and employees who come in contact with persons with-unescorted access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet-the criteria for alcohol / drug abuse or emotional instability; (4) an administrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) training provisions for all personnel and management to acquaint them with the licensee's fitness for duty procedures. Additionally, an industry task force staffed by representatives from the Institute of Nuclear Power Operations (INPO),

Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

Five specific recommendations for changes in the proposed rule were

- received from 56 of the 73 respondents. These involve: (1) changing the word " ensure" ,to the term " provide reasonable assurance;" (2) extending i

the rule to all persons with unescorted access, thereby including NRC personnel; (3) wording the rule broadly; (4) limiting the rule to " vital" rather than to the more general " protected" areas of the plant; and (5) eliminating the requirement for maintaining records of written proce-dures for the life of the pisnt. .

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The Commission has accepted recommendations (1), (2), (3), and (5);

each of which has been incorporated in the final rule. The word " ensure" was changed to the term " provide reasonable assurance." The rule was extended to all persons, including NRC personnel, since the licensee is ultimately responsibl4 for the behavior of all persons with unescorted access to protected areas of its facilTty, and the NRC has no way of guaranteeing that its personnel resident at nucle)r power plants, 'or visiting those plants, will always be fit for duty. Licensees will be

'N" expected to limit their implementation of the rule with regard to NRC

. . - - personnel to those procedures they exercise for their own employees arriving for duty or while on duty. In the event that a licensee questions the fitness for duty of an NRC employee, the licensee will be expected to contact an appropriate NRC office or official for guidance.

_ The licensee will not be expected to process NRC personnel through fitness for duty actions, punitive or nonpunitive, established for licensee personnel. It is anticipated that a similar process will be followed with regard to licensee contractors'~ personnel and with regard to per-sonnel from other government and private sector agencies who might be granted unescorted access to protected areas by the licensee. The rule is broadly worded in keeping with the Commission's belief that each licensee should establish criteria for fitness for duty and implemen-tation methods (e.g., breath testers, psychological tests) taking into consideration circumstances unique to its facility. The requirement that records of the written procedures be kept for the life of the plant has been eliminated since paragraph (1) of the rule requires 'that the licensee's procedures be in written form.

Recommendation (4) involving vital rather than protected areas was not included in the final rule. Selective application of the rule only

, to persons with unescorted access to vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally,,there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital areas through assistance or coercion of persons with unescorted access to vital areas, especially if under the influence of

, alcohol o'r other mind altering and mood changing drugs. Finally, the word

" temporary" modifying the term physical impairments in paragraph (x)'(1)(iii) i -

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[7590-01) of the proposed rule was eliminated as not being meaningful to the rule.

Mental and physical impairments, whether temporary or permanent, may or may not preclude a person from being fit for duty.

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REGULATORY ANALYSIS

. The Commission has prepared a regulatory analysis for 'this rule.

The analysis ex~ amines the costs and benefits of the rule as considered by the Commission. A copy of the regulatory analysis is available for r~~ " inspection and copying 'for a fee at the NRC Public Document Room, 1717 H Street NW., Washington, D.C. 20555.

PAPERWORK REDUCTION ACT STATEMENT The information collection requirements contained in this rula have been approved by the Office of Management and Budget; OPS Approval No:

3150-0011.

REGULATORY FLEXIBILITY ACT CERTIFICATION In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.

605(b), the Commission hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This final rule affects personnel with unescorted access to protected areas of facilities licensed under 10 CFR 50.21(b) or 50.22 for which an operating license has been granted. The' companies that own these facil-ities do not fall within the scope of "small entities" set forth in the Regulatory Flexibility Act or the small business size standards set out in regulations issu'ed by the Small Business Administration in 13 CFR Part 121. Licensee contractors, whose personnel are affected by imple-mentation of this rule, may fall within the scope of small entities.

These contractors will not, however, incur costs of establishing and managing f'itness for duty procedures required by th'e rule. Potential costs associated with small entity p'e rsonnel rehabilitation or other administrative processing as a result of the rule will depend on the type

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• of procedure maintained by these small entities to handle issues such'as A448 4

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[7590-01]

l fitness for duty. In other U.S. industries these costs are normally covered by group health insurance and administrative staff already main-tained by the entity. Therefore, it is the determination of the NRC that implementation of this rule does not meet the threshold of a significant economic impact. No comments were received from small entities to the i 4

public announcement (47 FR 33980) of the proposed rule that it would adversely affect them. '

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. - - - - . .m. LIST OF SUBJECTS _IN.10 CFR PART 50 t

i Antitrust, Classified information, Fire prevention, Inter governmental relations, Nuclear power plants and reactors, Penalty, Radiation protection. [

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Reactor siting criteria, Reporting requirements., ,

Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and Section 553 of Title 5 of

• j- the United States Code, the following amendment to 10 CFR Part 50 is published as a document subject to codification.  ;

j PART 50 - DOMESTIC, LICENSING OF PRODUCTION AND UTILI4ATION FACILITIES: l l'

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i 1. The authority citation for Part 50 continues to read as follows:

Authority: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, l

948, 953, 954, 955, 956, as amended sec. 234, 83 Stat. 1244, as amended

{ (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, '

l 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842,  !

5846), unless otherwise noted.

i l Section 50.7 also issued under Pub. L.95-601, sec.10, 92 Stat.'

j 2951 (42 U.S.C. 5851). Section 50.78 also issued under sec. 122, 68 4

~

- Stat.-939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under j sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Sections 50.100-50.102 also issued under sec. 186, 68 Stat. 955 (42 U.S.C. 2236).

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

! 2273), $$ 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a)

I are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));

j $$ 50.10(b) and (c) and 50.54 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and SS 50.55(e), 50.59(b), 50.70, 50.71, e . A%8 8 -

Enclosure "A" lz .

[7590-01) 50.72, and 50.78 are issued under sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). . -

2. A new paragraph (y) is added to S 50.2 to read as follows:

S 50.2 Definitions.

m .a- a -. a m

- ~ ' "

~

(y) . Protected area" means an a'ria encompassed by physical barriers to which access is controlled. -

~

3. A n2w paragraph (z) is added to S 50.54 to read as follows:

' ~ ~ ' ' ' - '

S 50.54 Conditions of licenses. - - - -

. ,. _- - - - - -A A A A 2 (z) Each licensee with an operating license issued under SS 50.21(b) or 50.22 of this Part shall establish and implement, within nine months

' ' ~ ~ '

after the effective date ofLthe rule, or the date of issuance of an

. operating license, whichever is later, adequate written procedures -

designed to provide reasonable assurance that all persons with u'nescorted access to protected areas, while in those protected areas, are not --

(1) Under the influence of alcohol; (2) Under the influence of any other drugs that could affect their faculties in any way contrary to safety; or *

(3) Otherwise unfit for duty because of mental or physical impair-ments that could affect their performance in any way contrary to safety.

Dated at this day of , 1983.

For the Nuclear Regulatory Commission.

Samuel J. Chilk Secretary of the Commission faklo$

9 Enclosure "A" 5

+

ENCLOSURE. "B" O

e O

1. 8 kAct

REGULATORY ANALYSIS FOR FINAL RULE TO PROVIDE REASONABLE ASSURANCE THAT PERSONNEL WITH UNESCORTED ACCESS TO PROTECTED AREAS ARE NOT UNDER THE INFLUENCE OF ALCOHOL OR OTHER ORUGS OR

- - ~

OTHERWISE UNFIT FOR DUTY

- If PROPOSED ACTION - --

1.1 Description *

'~~

This final rulemaking action' requires each commercial and industrial facil-

. ity licensed under 10 CFR 50.21(b) or 10 CFR 50.22 to establish and implement procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty.

1. 2 Need for Proposed Action

• f The Commission recognizes alcohol and drug abuse to be a social, medical and safety problem of epidemic proportions, affecting people in almost every industry and occupational group. For example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost of $12-15 billion. Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcohol and drug abuse, as well as other emotional and psychological factors, are also prevalent in th'e nuclear industry. Prudence, therefore, requires that appropriate precautionary measures be imposed to reduce the probability of a person under the influence of alcohol, drugs, or otherwise unfit for duty either causing an accident or decreasing the effectiveness of the response to an accident.

Alcohol and drug abusers' job performance can be expected to be negatively affected due to the presence of, or withdrawal from, chemicals in their blood stream. For example, four ounces of alcohol in the blood stream of~a 165 pound AM2 1 Enclosure "B"

male requires approximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize. This is one reason other regulatory agencies (e.g., U.S. Department of Transportation) mandate specific periods of abstinence (e.g., 4 or 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />) for interstate truck drivers, commercial airline pilots, etc., prior to coming on duty. Drugs other than alcohol such as cocaine an~d' hashish require as much as 24-72 hours to metabolize.

~

.~ A recent Tennessee Valley Authority (TVA) 1979 Report on its Alcohol and

, Drug Dependency Program states that the program served 350 employees during that year (one out of every 143). TVA estimates that its annual cost due to

~~

alcohol abuse alone is approximately $18.5 million. An NRC Alcohol and Drug

- ' Dependency Program official estimates that the Commission program serves about one of every 100 employees annually. As recently as mid-1981 approximately one-third of the Edison Electric Institute (EEI) member companies operating nuclear stations had no programs to deal with this issue. More recently, NRC

_ Inspection and Enforcement (IE) Information Notice No. 82.05, " Increasing Frequency of Drug-Related Incidents," reports a steadily increasing number of drug-related arrests and terminations being reported by the nuclear industry since 1978. The reported incidents involvi~ a range of licensee and contractor personnel, including personnel in operations and security. The reported incidents are widespread geographically, and involve power reactor sites in each of the five NRC regions.

Reported incidents have involved both onsite use or possession of alcohol and drugs, and personnel reporting to work under the influence of certain con-trolled substances. Marijuana was the most frequently reported controlled sub-stance involved in these events; however, incidents involving amphetamines, cocaine, hashish, and methaqualone have also been reported.

Since operation of a nuclear facility by persons not fit for duty could degrade a licensee's ability to operate the facility in a safe manner, develop-

~ ment of a regulation concerning the determinstion of fitness for duty with

. respect to the consumption of alcoholic beverages, the use of other drugs which affect the faculties in a way contrary to safety, stress, and physical impair-ments, which could affect performance in any way contrary to safety, is neces-sary to protect the health and safety of the public. -

l l

A%8 l 2 Enclosure "B" j b i

1.3 Value/ Impact of Proposed Action

1. 3.1 NRC Operations The value of this final rulemaking action to the NRC will be an enhanced

, capability to carry out its' mission with respect to ensuring the health and safety of the public by requiring licensees to focus on fitness for duty of all personnel authorized unescorted access to protected areas of their facil-ities. NRC personnel come under the provisions of this rule since the licensee

' ' N has ultimate responsibility for the behavior of all persons with unescorted

--access to its facility.

i The impact of this final rulemaking action on the NRC will be the time spent developing and enforcing the regulation. Periodic audits of personnel fitness

-~

for duty program procedures by the NRC staff will require approximately 2 man-days per year per station. The total current annual cost to the NRC, based on an j hourly rate of $80, would be $72,960 (57 stations x 8 man-hours x 2 days x $80).

1.3.2 Other Government Agencies -

This rule will not impact other government agencies, unless the govern-ment agency is a licensee, such as TVA. .

1.3.3 Industry j The value of this final rulemaking action to industry will be enhanced assurance of safety of facility operation. Implementation of this regulation will also benefit the licensee by reducing plant downtime or equipment damage caused by errors committed by personnel unfit for duty. The National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost of $12-15 billion. With regard to fitness for duty programs, Wrich 1980,1 reports that U.S. industry benefits 10 dollars in decreased absenteeism and accidents, and increased productivity for every dollar it spends on fitness for duty. The direct impact on the industry will be the cost of developing and implementing the written procedures. The NRC estimates

, that individual licensee burden to develop written procedures required by the rule will be approximately 1,200 man-hours over a nine month perio,d if no fitness 3Wrich, J.T., The Employee Assistance Programi updated for the 1980's. City Center, Minnesota: Hazelden Publishing Co., 1980.

.Arce 3 Enclosure "B" a ____.

i for duty program currently exists at the licensee's facility. The nine month (1200 hour0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br />) program development period resulted from discussions with fitness for duty program personnel in government and private industry. Using an hourly rate of $80, the cost per licensee to develop written procedures specified in this rule will be approximately $96,000 (1200 hours0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br /> x $80). The total cost

- ~

' for approximately 57 currently licensed nuclear power stations to establish l written procedures in response to the rule will be approximately $5,472,000

-(57 stations x $96,000). Since the rule is broadly stated giving the licensee

~ " con'siderable latitude in developing and managing its procedures, only a

.- general annual cost statement can be given here. If the licensee appoints /

contracts a full-time program manager, its annual cost will be.approximately

$50-60 thousand. The total annual cost for approximately 57 currently licensed

~

nuclear power stations to implement written procedures under the provisions of the rule will be approximately $2,850,000 - $3,420,000 (57 stations x $50-60 thousand). Included in this estimate are manager salary, office space, proce-dures reviews, recordkeeping and processing of clients. Costs associated with such things as rehabilitation are normally*the responsibility of the employee.

This is the practice among non-military government agencies and private industry.

, The above cost estimates were derived from contacts with fitness for duty program personnel from private industry and non-military government agencies.

Included among these is the NRC Alcohol and Drug Dependency Program which serves headquarters and regional offices.

, The final rule will allow licensees to develop the specifics of their written pocedures taking into consideration fairness to and due process for their employees. A more specific regulation that attempted to do this in detail could be cumbersome, inflexible, and unnecessarily detailed.

1.3.4 Public *

,, The value of this final rulemaking action to the public will be greater assurance of safer operation of nuclear facilities. It will also have the potential for benefiting the public economically since positive cost-benefit ratios are reported from industries with fitness for duty programs.

1.3.5 Decision on Proposed Action Licensees should be required to establish and implement written procedures

. designed to provide reasonable assurar.ce that all persons with unescorted

-- Aug 4 ,

Enclosure "B"

access to protected areas, while in those protected areas, are not under the influence of drugs or alcohol or otherwise unfit for duty.

2. TECHNICAL APPROACH Various methods of establishing a program to provide reasonable assurance that personnel with unescorted access to the protected area of commercial and

, industrial facilities licensed under 10 CFR 50.21(b) or 10 CFR 50.22 were con-

. ,- ..sidered. The procedures used by the Federal. Aviation Administration (FAA) were

,. ___ reviewed for their applicability to nuclear facilities as were the recent changes proposed to the program. The current FAA regulations state that:

(a) No person may act as a crew member of a civil aircraft-(1) Within 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; or (3) While using any drug that affects his faculties in any way contrary to safety."

Consideration was also given to incorporating the provisions of this final rule into the behaviorial observation program which is being developed as a part of the draft proposed changes to 10 CFR 73.56 (Access Authorization Rule).

This was not done because it is felt that broadening the scope of the draft proposed " Access Authorization" rule would complicate and delay this " Fitness for Duty" rule. The importance of establishing a regulation which. addressed the specific issue of fitness for duty necessitated proceeding independently with this " Fitness for Duty" rule. After some experience has been gained through the implementation of both this final " Fitness for Duty" rule and the proposed " Access Authorization" rule (e.g. , 2-3 years), consideration will be given to combining or coupling them in some way.

Extending the rule to nuclear power plants under construction. It was determined by the staff that these plants should not be included in the rule since they present no potential adverse effect on the public health and safety

' due to a nuclear accident.

A broad administrative approach is chosen to accomplish this rulemaking action. Each licensee will be required to establish and implement procedures h%e-5 Enclosure "B" n .

which provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not.under the influence of alcohol or other drugs or othemise unfit for duty. The category of per-sonnel was restricted to those personnel with unescorted access rather than anyone with access to a protected area because an individual with unescorted access may have the opportunity to perform an unobserved action which could effect the public health and safety. Itincludesallpersons, including lNRC personnel, who have been authorized unescorted access to protected areas.

' "' ~-

The detailed method of implementing this requirement is left to the

~

- - licensee, rather than issuing a very detailed prescriptive regulation, in order to allow each licensee to focus on its own situation and provide a solution

' ~~

which takes into consideration its employees and any circumstances unique to its facility. However, in order to facilitate enforcement of the rule, written procedures developed by licensees will be expected to respond to the following nominal guidelines: (1) a statement of responsibilities of program coordinator, managers, supervisors, and employees who come in contact with persons with l

unescorted access to protected areas; (2)"an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet the criteria for alcohol / drug abuse or emotional instability; (4) an admin-istrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) training provisions for all personnel and management to acquaint them with the licensee's fitness for duty procedures.

Additionally, an industry task force staffed by representatives from the Institute of Nuclear Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

3. PROCEDURAL APPROACH 3.1 Procedural Alternatives 3.1.1 Specific Regulation--issue a re2ulation which requires licensees to assure that 'ersonnel p with unescorted access to protected areas are fit for duty as specifically defined in the regulation. Such a regulation would have to specify, among other things, con'ditions ,of fitness for duty (e.g. , blood-alcohol h4L8 .

6 Enclosure "B"

'h _ _ _ . _ _ _ _ _ _ - - ----

. s m

level), use of other controlled /non-controlled drugs, and revocation, suspension or modification of an operating license. .

3.1.2 Broad Regulation--issue a regulation which requires licensees to assure that personnel with unescorted access to protected areas to be fit for

~ duty in accordance with general guidelines.

~

. t 3.1.3 Policy Statement--issue a . Commission policy statement which deli-

~ ~ ne' ate's Commission policy regarding fitness for duty of personnel with unescorted access to protected areas.

3.1.4 No Change--maintain status quo. The NRC does not have regulations

'~~

which specifically address use of alcohol and other drugs or the broader issue' of fitness for duty of persons with unescorted access to protected areas at nuclear power stations.

3.2 Value/Imoact of Procedural Alternatives The value to the Commission of alternative (1), a specific regulation, is [

that it would provide a good regulatory basis for enforcement. The impact on ,

the NRC of alternative (1) is that a regulation which attempts to fully define all instames when an individual should be considered unfit for duty, while protecting the rights of the individual involved, would necessarily be cumber-some and less than an optimal approach for any particular licensee facility.

The value to the Commission of alternative (2), a broad regulation, is that it would provide some regulatory basis for enforcement, it would provide

} a basis for future regulatory guides, and it would allow each licensee to develop i procedures which take into consideration not only fairness to and due process for its employees but also any conditions or circumstances unique to its facility.

The impact on the Commission of alternative (2) is that it would be harder to ,

enforce than a specific regulation since it would not require industry-wide standardization of their fitness-for-duty procedures. However, an industry task l

. force staffed by representatives from the Institute of N.uclear Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set of i

A4M -[

i Enclosure "B"

.L_ --

standard guidelines for licensees to use in responding to this type of broadly 4

worded rule. .- . -

The value to the Commission of alternative (3), a policy statement, is it would provide the greatest degree of flexibility for implementation since con-formance to the policy by' licensees would be voluntary. The impact on the Commission of alternative (3) is that it would not provide a regulatory basis

, for enforcement.

The value to the Commission of alternative (4), no change in existing

'~

regulations, is it would eliminate the requirement for allocating two man-days

-~~per' year per plant among NRC licensing and inspector personnel. The impact on the Commission of alternative (4) is that the Commission may be perceived as indifferent to alcohol and drug abuse at nuclear power stations. At present, the Commission has no regulations'which specifically address alcohol and drugs' or the broader issue of fitness for duty.

l

! 3.3 Decision on Procedural Approach The Commission should publish a broad regulation which would require 4

, licensees to provide reasonable assurance that all persons *with unescorted ,

access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty. Commission enforcement of the broadly worded rule should be undertaken using the general guidelines described in paragraph 2 of this Regulatory Analysis.

4. STATUTORY CONSIDERATIONS 4.1 NRC Regulatory Authority l . Authority for this final action is derived from Sections 103, 104 and 161 of the Atomic Energy Act of 1954, and from Section 201 of the Energy Reorganiza-tion Act of 1974.

e 8 Enclosure "B"

4.2 Need for NEPA Statement

~

An environmental impact statement is not required since, under 10 CFR 51.5(d)(3), this final action is not a major action that may significantly affect the quality of the human environment.

5. RELATIONSHIP TO OTHER EXISTING OR PROPOSED REGULATIONS OR POLICIES

- ' ' - - - The requirements established by this regulation are not addressed by exist-

. r.-..-ing- regulations or policies, nor are they addressed by other' proposed regula-tions or policies. The relationship between this final rule and the draft proposed change to 10 CFR 73.56 (Access Authorization Rule) under development

~~ ~ has been carefully considered. The decision has been made to proceed separately with both rulemaking actions and to reconsider combining or coupling them after experience has been gained from their implementation. ~

6.

SUMMARY

AND CONCLUSIONS --

An amendment to 10 CFR 50.2 and 50.54 should be promulgated to require licensees with operating licenses issued under S 50.21(b) or S.50.22 to estab-lish and implement adequate written procedures designed to provide reasonable assurance that all persons with unescorted access to pro'tected areas, while in those protected areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty because of mental or physical impairments.

4 i .

A4Gr i t

[. 9 Enclosure "B"

\ . _ _ . . ..

- - m .._..._. . .

. e ENCLOSURE "C" 4

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) e i e ANALYSIS WITH RESPECT TO PERIODIC SYSTEMATIC REVIEW 0F REGULATIONS i .

• I (THI Action Plan Task IV.G.2) (

1- .,,

SUBJECT:

Requirement for licensees to provide reasonable assurance that personnel with unescorted access to protected areas of commercial and industrial facilities licensed undqr 10 CFR S 50.21(b) or 10 CIR S 50.22 are fit for duty  ;

Criteria for periodic and systematic ,

review of regulations NRC compliance .

t

1. The proposed regulation is needed. The need for the proposed rule is discussed in the Regulatory Analysis prepared in connection with the rulemaking (Enclosure B). ,

2. The direct and indirect effects of the The direct and indirect effects of this'rulemaking l regulation have been adequately considered. action were considered in the Regulatory Analys'is  !

prepared in connection with the final rule.

1 (Enclosure B)' ,

c

3. Alternative approaches have been considered and Alternative methods for providing restrictions on the the least burdensome of the acceptable - consumption of alcoholic beverages and the use of alternatives has been chosen. drogs by nuclear facility personnel have been con-sidered in the Regulatory Analysis, and the Icast burdensome of the acceptable alternatives has been chosen.

4. Public comments have been considered and an The proposed rule was issued for public comment.  ;

adequate response has been prepared. Comments received were considered in developing the '

final rule, ,

5. The regulation is written in plain English and The final rule has been reviewed and edited for the is understandable to those who must comply specific purpose of ensuring that,the regulation is with it. clear and can be understood by persons who are l

i required to comply with it.

l -

l 1 Enclosure "C" l

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ENCLOSURE "D" 9

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- - - , . - - . _ . , , ._ .__.,4 _,,___, ,.,,_, , _ _ __ _ __ _, _ _ _ _ _ __ _

~

s RESOLUTION OF PUBLIC COMMENTS ON PROPOSED RULE CHANGES TO 10 CFR 50 PARTS 50.2 AND 50.54 l

- ~ '

Thefollowingparagraphsreportresolutionofpubliccommentsreceivedon i the proposed " Fitness for Duty" Rule (Federal Register, 47FR33980, August 5 1982). The announced comment period expired October 4,1982. A total of 73 reip~o'n~ses were received, 43 'by the end of the announced comment period, and an 4

~

7 dditio'n'al 30 responses by the Close of Business November 5, 1982. All 73 responses are included in the analysis. Respondent Control (Docket) Numbers (1-73) and associated Identifiers are listed in the attachment at the end of this Enclosure. -

Respondent (Commenter) Profiles A total of 73 responses were received ~on the proposed " Fitness for Duty" rule. Thirty-six (49%) were received from the utilities; nine (13%) from utility

- suppliers (e.g., vendors, contractors, consultants); two (3%) each from unions and legal counsel associated with the nuclear industry; four (6%) from profes-sional societies associated with the nuclear industry; one (1%) from utility consultants; and 19 (26%) free. nrivate citizens. Of this latter group, six

, identified themselves with the t.tilities (e.g. , trainees, operators, instructors, maintenance personnel), and two fid not comment on the proposed rule (i.e.,

~

requested extensions to the comment period which were denied).

Overview of Comments ,

i

. Comments received on the proposed " Fitness for Duty" rule from among 71 usable responses involve 310 comments concerning 16 issues grouped under the following five headings:

1. Overall agreement or disagreement with the proposed rule citing util-ity awar,eness or non-awareness of and action tr resolve the :itness for duty issue; A%t '

~

Enclosure "D" 1

l

2. Socioeconomic issues which might affect the utility adversely if the '

proposed " Fitness for Duty" Rule becomes law (legal, union, monetary cost, morale);

3. Implementation issues which should or should not be resolved prior 1 ~ ~to issuance of the final rule (e.g., definition of terms, use of breath testers

, and other diagnostic techniques, impairment standards); -

' " ^ ~

4. Recommended changes in the proposed rule (i.e. , inclusion of NRC per-7 0nnel, application to protected versus vital areas of the plant, guarantees of effectiveness, recordkeeping);

~

5. Responses to NRC Commissioners' solicitation of specific comments

. (e.g., fitness for duty criteria, use of breath testers, scope of rule, appli-cation to NRC personnel, blood-alcohol level limits).

Individual Comments And Their Resolution ~

1. Overall Agreement / Disagreement With Proposed Rule

a. Twenty nine (41%) of the respondents agree with the need for a " Fit-ness for Duty" rule either without comment or with recommendations for changes in the proposed rule. Included in this group are nine of 11 private citizens not identified with the nuclear industry, one of six private citizens identified with the nuclear industry, one of two labor unions, one*of two legal firms, one utility consultant, two of nine utility suppliers, and 14 of 36 utilities responding. Recommendations are resolved under Paragraph 4 below.

(Respondents: 1, 2, 3, 7, 8, 9, 10, 11, 13, 17, 21, 23, 24, 31, 32, 35, 36, 43,i4,'47,'49,50,58,59,60,.61,65,72,73)

b. Forty-two (59%) of the respondents disagree with the need for a " Fit-ness for Duty" Rule. Included in this group are 22 of 36 utilities, seven of

. nine suppliers, five of six private citizens identified with the nuclear industry, two of 11 private citizens not identified with the nuclear industry, four of four professional societies identified with the nuclear industry, one u of two legal firms, and one of two labor unions responding. (Respondents: 4, 5,

~

kN 2 . Enclosure "0"

6, 14, 15, 16, 18, 19, 20, 22, 25, 26, 27, 28, 29, IC 33, 34, 37, 38, 39, 40, 41, 42, 45, 46, 48, 51, 52, 53, 54, 55, 56, 57, 62, 63, 64, 66, 67, 68, 69, 70) m (1) Thirty of these respondents comment that the rule is not needed since the utilities already'have adequate fitness for duty programs in opera-1 ~ " tion. (Respondents: 4, 5, 6, 13, 16, 19, 22, 25, 26, 27, 28, 29, 30, 34, 38, 39, 42, 51, 54, 55, 56, 57, 62, 63, 64, 66, 67, 68, 69, 70) -

' N' "" (2) Eight of these respondents comment that the NRC acknowledges

~

- -Mhe-industry's awareness of the fitness for duty problem and its response to it, in NUREG-0903. (Respondents: 16,28,29,33,37,48,64,.70)

~ ~ ~

(3) Thirteen of these respondents comment that the NRC has not estab-

, lished sufficient justification (need) for a fitness for duty rule, citing NUREG-0903, and suggesting that additional research'into the issue of ' fitness for duty is required prior to a rulemaking action. (Respondents: 18, 20, 28, 30, 41, 48, 51, 53, 62, 64, 66, 68, 69) ~~~

, (4) Fourteen of these respondents comment that a policy statement from the NRC to the utilities on fitness for duty would be sufficient. (Res-pondents: 6, 18, 28, 33, 41, 42, 45, 49, 53, 56, 64, 67, 68, 70)

(5) Fourteen of these respondents comment that a fitness for duty rule, if issued, should be part of the proposed " Access Authorization" Rule (10 CFR S 73.56). (Respondents: 4, 5, 28, 33, 38, 39, 40, 41, 42,* 45, 48, 52,63,69)

RESOLUTION: The NRC staff recognizes alcohol and drug abuse to be a

~

,, socia 1, medical and safety problem of epidemic proportions, affecting people in almost every industry and occupational group. For' example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. indus-trial accidents involve alcohol, at an annual cost of $12-15 billion. Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcchol and drug abuse, as well as other emo'tional and psychological factors, o are also prevalent in the nuclear industry. Prudence, therefore, requires that e

.- gg

. 3 Enclosure "0" 3

. i appropriate precautionary measures be imposed to reduce the probability of a person under the influence of alcohol, drugs, or otherwise unfit for duty either causing an accident or decreasing the effectiveness of the response to an accident.

Alcohol and drug abusers' job performance can be expected to be negatively

'_ ~ affected due to the presence of chemicals in' their blood stream. For example,

, 4 ounces of al6ohol in the blood stream of a 165 pound; male requires approximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize. This is one reason other regulatory agencies (e.g.,

' ' ~ -U:5. Department of Transportation) mandate specific periods of abstinence (e.g.,

--4 br 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />) for interstate truck drivers, commercial airline pilots, etc. ,

prior to coming on duty. Drugs other than alcohol such as cocaine and hashish require as much as 24-72 hours to metabolize. Additional information concerning

~ ~ ~ ~

the economic impact of alcohol and drug abuse on absenteeism and job performance is presented on page 6 of this enclosure.

A recent Tennessee Valley Authority (TVA) 1979 Report on its Alcohol and Drug Dependency Program states that the pr~ogram served 350 employees during that year (one out of every 143). TVA estimates that its annual cost due to

, alcohol abuse alone is approximately $18.5 million. An NRC Alcohol and Drug Dependency Program official estimates that the Ccmmission program serves about one of every 100 employees annually. As recently as mid-1981 approximately one-third of the Edison Electric Institute (EEI) member companies operating nuclear stations had no programs to deal with this issue. More recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05, " Increasing Frequency of Drug-Related Incidents," reports a steadily increasind number of drug-related arrests and terminations being reported by the nuclear industry since 1978. The NRC staff has determined therefore, that a regulation with the authority of law is required for licensees to establish written procedures to

, provide reasonable assurance that all persons with unescorted access to protected plant areas are not under the influence of alcohol, other drugs, or otherwise unfit for duty.

NUREG-0903, " Survey of Industry and Government Programs to combat Drug and Alcohol Abuse," is cited by seven of the respondents as evidence that the utilities are aware of the fitness for duty problem and are taking appropriate

- - ANE 4 Enclosure "0"

_h _

s . i and adequate remedial action. NUREG-0903, in fact, contains data on 10 of 75 licensees, one of wh.ich admitted not having any written policy for handling potential fitness for duty offenders. The information contained in the NUREG on the remainder of the licensees surveyed suggests that no consistent policy for dealing with the day-to-day fitness for duty problem exists. Most utility

- - ~ programs reported on appear to be punitive rather than rehabii'tative, and appear to focus primarily on screening new employees rather than the day-to-day behavior of the nuclear power station work force.

~~~. -

..- - NUREG-0903 is cited by 13 respondents, stating that the NRC has not estab-lished sufficient justification for a fitness for duty rule. The NRC recognizes alcohol and drug abuse to be a social, medical, and safety problem affecting

~~

people in almost every industry and occupational group. For example, 46% of -

all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost of $12-15 billion. Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcohol and drug abuse, as well as other emotional and psychological factors, are also prevalent in the nuclear industry. Prudence, therefore, requires that appropriate precautionary measures be imposed to reduce the probability of a person under the influence of alcohol, l drugs, or otherwise unfit for duty either causing an accident or decreasing the  !

effectiveness of the response to an accident.

Alternatives to the " Fitness for Duty" rule cited by respondents include a policy statement and/or combining the rule with the draft proposed 10 CFR 73.56  ;

" Access Authorization" rule. Consideration was given by the NRC staff to incor-porating the provisions of the " Fitness for Duty" rule into the behavioral observation program portion of the draft proposed " Access Authorization" rule.

It was decided not to do this because broadening the scope'of the proposed

- " Access Authorization" rule would complicate and delay this " Fitness for Duty" r rule. The importance of establishing a regulation which addresses the specific issue of fitness for duty necessitates proceeding independently with the present rule. After some experience has been gained through the implementation

, of both the " fitness for Duty" rule and the draft proposed " Access Authoriza-tion" rule (e.g. , 2-3 years), consideration will be given to combining them.

Issuing a policy statement, as a alternative to a regulation,'was considered by

[ f(cid 5 ,

Enclosure "D"

s l

l the NRC staff as part of the Regulatory Analysis. The procedural approach selected was a broad rule since it would provide considerable latitude to the i

licensee while at the same time pro'viding a regulatory basis for enforcement.

In sumary, the NRC staff has determined that sufficient evidence exists

. concerning fitness for duty to issue a broad regulation which: (1) has the full force ~and authority of law, (2) provides a basis for future regulatory

. . actions and policy statements, and (3) allows each licensee to develop written s - - --

procedures which take into consideration not only fairness to, and due process

, ,._ _ for its. employees, but also any condition or circumstance unique to its facility.

l

2. Socioeconomic Impact of Rule

a. Twenty respondents comment that developing and implementing written

~

i procedures as called for in the rule would cause legal and union related liabil-I ities to the licensee. (Respondents: 5, 15, 17, 19, 22, 23, 25, 26, 28, 29,

, 33,34,42,44,58,59,64,68,70,72) -

i

), RESOLUTION: The NRC staff recognizes that written prgcedures for imple-j menting the " Fitness for Duty" rule will raise sundry personal rights and union related issues. It is expected, however, that appropriate reviews and

coordination of written procedures will be undertaken by the licensee with its i

legal counsel and union representatives prior to implementing its procedures.

Legal and/or union issues related to fitness for duty programs are being dealt with successfully in other industries (e.g., civilian aviation, aerospace, electronics).

! b. Eleven respondents comment that developing and implementing written 1

~

procedures called for in the " Fitness for Outy" Rule will cause substantial

! dollar costs to the licensee. (Respondents: 16, 23,.25, 33, 44, 46, 48, 53, 55,58,64) i RESOLUTION: , The NRC staff re' cognizes that developing written procedures in response to the rule will involve dollar costs. The NRC estimates that i individual licensee burden to develop written procedures required by the rule

j. .

. #68 .

+ 6 Enclosure "0" i

(w.

will be approximately 1200 man-hours over a nine month period if no fitness for duty program currently exists,at the licensee's facility.. Using an hourly rate of $80, the cost per licensee to develop written procedures specified in this rule will be approximately $96,000 (1200 hours0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br /> x $80). Since the rule is broadly stated giving the licensee considerable latitude in developing and

- managing his procedures, only a general annual cost statement can be given here. If the licensee appoints / contracts a full-time program manager, his

- annual cost will be approximately $50-60 thousand. Included in this estimate

- # " u are manager salary, office space, procedures reviews, recordkeeping and proc-

, --essing of clients. Costs associated with such things as rehabilitation are normally the responsibility of the employee. This is the practice among non-military government agencies and private industry. The above cost estimates

~~

were derived from contacts with fitness for duty program personnel.frcm private industry and non-military government agencies. Included among these is the NRC Alcohol and Drug Dependency Program which serves headquarters and regional offices. However, the NRC staff is also aware that several of the utilities currently have some manner of program in place (reference NUREG-0903), there-fore, minimizing their costs in shaping current programs to meet " Fitness for Duty" rule requirements. Seccndly, employee observation / assistance programs in other industries claim, almost unanimourly, to save dollar costs in the long-term. While utilities such as TVA which claims that alcohol abuse alone costs it approximately $18.5 million annually -- fitness for duty programs of the type envisioned by the " Fitness for Outy" rule are expected to save dollar costs through quicker identification of employees not fit for duty, and through assisting these individuals, in whom considerable resources have been invested, so that they might return to high levels of. productivity. Absenteelt.:c due to alcohol-drugs costs U.S. industry an average of $300 annually'for every worker nationwide. Alcohol-drug abusers lose an additional 25% of their productive

~

time when on~the job at an average annual cost to U.S. industry of approximately

$2,900 per alcohol-drug abuser. The total cost to U.S. industry annually is between $12 and 15 billion. With regard to fitness for duty programs, Wrich 1980,1 reports that U.S. industry benefits 10 dollars in decreased..

IWrich, J.T., The Employee Assistance Program; updated for the 1980's. City Center, Minnesota: Hazelden Publishing Co., 1980.

A%8 7 Enclosure "0"

absenteeism and accidents, and increased productivity for every dollar it spends on fitness for duty. ,

c. Fifteen respondents comment that the " Fitness for Duty" rule will have a deleterious effect on nuclear power plant employee morale. (Respondents:

14, 18, 26, 27, 28, 30, 38, 42, 46, 48, 51, 55, 61, 64, 73)

^

_ RESOLUTION: The NRC staff has found no documented evidence from experiences

= --- . with fitness for duty programs in other industries (e.g. , civilian aviation,

,.__--aerospace, electronics) which indicate that employee morale has been affected negatively. On the contrary, such programs tend to enhance morale since the company is perceived as being interested and supportive of employees in solving their personal problems. .

3. " Fitness for Duty" Rule Implementation Factors

a. Nineteen respondents comment that criteria (operational definitions) are needed for terms such as " fitness for duty". (Respondents: 6, 11, 14, 17, 28, 29, 34, 36, 42, 44, 45, 47, 52, 53, 54, 55, 60, 62, 69)

Three respondents comment that such terms as " fitness for duty" should be defined by the utility as part of its written procedure. (Respondents: 43, 48,55)

b. Twenty-seven respondents comment that instruments such as breath testers should not be used to monitor employee fitness for duty. (Respondents:

6, 19, 22, 23, 25, 26, 29, 30, 32, 33, 34, 39, 44, 46, 47, 48, 50, 51, 55, 57, 58,60,61,62,70,72,73)

Four respondents comment that instruments such as breath testers should be used to monitor employee fitness for duty. (Respondents: 2, 7, 11, 45)

A%g

. 8 Enclosure "0"

c. Four respondents comment that specific blood alcohol limits should not be established as part of .the " Fitness for Duty" Rule. (Respondents: 47, 48,60,64)

One respondent (#45) comments that a specific blood alcohol level

'. ~ ,

limit should be, established but does not sug' gest a level.

RESOLUTION: The rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and techniques for determining _

~ ~fi~tn6f s~ for duty (e.g. , breath testers, psychological tests) taking into con-sideration circumstances unique to its facility. However, in order to facil-

_ . _ itate enforcement of the rule, written procedures developed by licensees will be expected to respond to the following nominal guidelines: '(1) a statement of

.

• responsibilities of program coordinator, managers, supervisors, and employees

~

~

who come into contact with persons with unescorted access to protected areas;

(2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet th~e criteria for alcohol / drug abuse or

~

i emotional instability; (4) an administrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) training provisions for all personnel and management to acquaint them with the licensee's fitness for duty procedures. Additionally, an industry task force staffed by representatives from the Institute of Nuclear Power Operations (INPO),

Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

J

4. Recommended Changes in " Fitness for Duty" Rule Content The " Fitness for Duty" rule published in the Federal Register for public

~

comment on August 5,1982 states: "Each licensee with an operating license issued under 10 CFR 50.21(b) or 50.22 shall establish, document and implement adequate written procedures designed to ensure that, while on duty, its and

its contractor's personnel with unescorted access to protected areas are not i . (1) under the influence of alcohol, (2) using any drugs that affect their faculties in any way contrary to safety, or (3) otherwise unfit for duty bW

~

9 Enclosure "0"

~ -

- - - - _ - - . - . _ - - _ - - - - .- .- ..~

. . -. - _. . --. - - - . _ - - . -=

because of mental or temporary physical impairments that could affect their performance in any way contrary to safety. Each licensee shall maintain the I written records of these procedures for the life of the plant." ,

i a. Twenty-nine respondents comment that the word ensure denotes guarantee

- and that no known program or technique is capable of guaranteeing 100T. effective-ness in detecting and diagnosing unfitness for duty. These respondents recom-i . . mend that the word ensure be replaced by the words provide reasonable assurance.

• ' 'r -(Respondents: 13, 14, 21, 28, 29, 31, 33, 36, 37, 38, 40, 41, 42, 47, 48, 49,

. ,. --50r 53,- 54, 56, 58, 59, 60, 61, 64, 65, 66, 67, 69) i l -

b. Thirty-three respcndents comment that the rule, currently directed

' ' ~ ~ '

at the licensee's and its contractors' personnel, should be extended to all j

persons with unescorted access, including NRC personnel. (Respondents: 5, i

! 6, 13, 14, 21, 25, 26, 27, 29, 31, 33, 35, 36, 40, 42, 44, 45, 46, 47,'48, j i

50, 51, 53, 57, 58, 59, 60, 61, 63, 64, 65, 66, 73) {

i Two respondents comment that NRC personnel should not be included. These l h, latter respondents state that the NRC should be made responsible for its own f employees; that the utilities should not be put in the position of policing f

! regulators. (Respondents: 41,67) I i t i  !

1  !

l

c. Ten respondents coment that the rule should pertain only to vital  :

i

! areas of the plant rather than protected areas as now stated, citing the f former only as being crucial to the public safety. (Respondents: 13, 21, 22, 28,31,33,35,42,55,64) ,

f i i

Five respondents comment that the current wording of the rule pertaining ,

I

) ,

to protected areas should be retained, citing that access to protected areas  !

1 includes access to vital areas. (Respondents: 45, 47, 48, 59, 60) j d. Thirteen respondents comment that written records should not be main-tained for the life of the plant, but they should be kept for a reasonable I f period (e.g., two years) after they are promulgated. (Respondents: 6, 31, 33, l 41,47,48,50,53,56,.60,64,65,66) i .

448 l 10 Enclosure "D" l

e. Five respondents comment that the rule should be stated broadly to allow licensees to establish fitness for duty programs (written procedures) consistent with their own needs and sensitive to unique circumstances as may exist at their own facility. (Respondents: 47,48,59,60,65) ,

One respondent (#64) comments that the rule should be more specific con-cerning conditions of fitness and processing of persons determined to be unfit

for duty. _

~ ~ ~ . -- . ..

- , . . . - - - RESOLUTION

The NRC staff concurs in Comments a, b and e involving "rea-sonable assurance," application of the rule to "all personnel" and " broadly stated" rule respectively. These changes have been incorporated into the ~

~~

I,1 final rule. The word " ensure" was changed to the term " provide reasonable assurance" since no written procedure can be expected to be 100% effective all the time. The rule was extended to all persons, including NRC personnel, since the licensee is ultimately responsible for the behavior of all persons with unescorted access to protected areas of its facility, and the NRC has no way of guaranteeing that its personnel resident at nuclear power plants, or visiting i those plants, will always be fit for duty. Licensees would be expected to l limit their implementation of the rule with NRC personnel to those procedures 4

they exercise for their own employees arriving for duty or while on duty. In the event that a licensee questions the fitness for duty of an NRC employee, the licensee will be expected to contact an appropriate NRC office or official for guidance. The licensee would not be expected to process NRC personnel through fitness for duty actions, punitive or nonpunitive, established for licensee personnel. The rule is broadly worded in keeping with the Commission's belief that each licensee should establish criteria for fitness for duty and 4

I implementation methods (e.g., breath testers, psychological tests) taking into consideration circumstances unique to its facility.

1 The NRC staff takes exception to Comment c which involves application of the rule to vital areas of the plant rather than the broader protected areas.

The NRC staf f maintains, as do five of the respondents, that the " Fitness for Duty" rule should apply t,o unescorted access to protected areas. Selective application of the rule to only persons with unescorted access to vital areas j ,

would be impractical, since implementation of the rule will occur at the A4cs .

, 11 Enclosure "0"

_. = . . . _ - . . - . _ . .

~

entrance to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital areas through assistance or coercion of persons with unescorted access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs. Therefore, the word protected

. - - is retained in the final rule.

f

'. Comment d involves maintenance for the life of the plant of records of '

. - m- . written procedures developed to respond to the " Fitness for Duty" rule. The

... requirement that records of the written procedures be kept for the life of the plant has been eliminated since paragraph (1) of the rule already rcquires that the licensee's procedures be in written form.

l . . _ _

f. Presented below is the proposed rule submitted for public comment on

~

l August 5, 1982. Superimposed on the proposed rule are changes resulting from

• resolution of public comments. Changes were also made in the proposed rule, i from NRC staff deliberations, as follows.- The word " document" in paragraph j (x)(1) was deleted as being redundant with the word " written." The phrase "within nine months after the effective date of the rule, or the date of issuance of an operating license, whichever is later" was added in paragraph (x)(1) to specify a time requirement for licensees to respond to the rule. -

l The word "other" in paragraph (x)(1)(ii) was added to recognize the fact that alcohol is also a drug. The word "could" in paragraph (x)(1)(ii) was added to  ;

l recognize the fact that a wide variety of substances (i.e., controlled,

! noncontrolled, illegal) may or may not render particular individuals fit or not fit for duty. Additionally, the word " temporary" in paragraph (x)(1)(ill) was eliminated as not being meaningful. Mental and physical impairments, vnether temporary or permanent, may or may not preclude a person from being fit for duty.

1 (x)(1) Each licensee with an. operating license issued under 10 CFR l

j $ 50.21(b) or S 50.22 shall establish [decument) and implement, within nine r

months after the effective date of the rule, or the date of issuance of an l operating licence, whichever is later, adequate written procedures designed to

[ ensure-that--while-en-duty--the-licenseel s-and-its-centracters' personnel]

! provide reasonable assurance that all persons with unescorted access to protected ,

l areas, while in those protected areas, are not:

i b Tb5 j 12 Enclosure "D"

. i (i) Under the influence of alcohol; (ii) [Wsing) Under the influence of any other drugs that could affect their faculties in any way contrary to safety; or

. (iii) Otherwise unfit for duty because of mental or [ temporary) physical impairments that could affect their performance in any way contrary to safety.

(2) [The-written-records-of-these procedures-wiii-be-maintained-for-the

. -- -iife-of-the pient-]

5. Specific Responses to Commissioners' Questions The following questions were posed specifically by the Comissioners in soliciting public comment on the " Fitness for Duty" rule. Although each of these questions have been dealt with earlier in this Enclosure, they are restated here for Comissioner review. ~

a. Should the Commission establish specific fitness

• criteria? Nineteen respondents comment that the Commission should establish specific fitness crite-ria. Three respondents coment that such criteria should be established by each licensee as part of its written procedures. The NRC staff concurs in this latter position since it believes that a b*oadly worded rule is in the best interests of government and industry.

~

b. Should specific methods be established by the NRC for implementation of the " Fitness for Duty" rule, including the use of breath tests, background investigations, psychological tests, behavioral observation programs, employee awareness programs, employee assistance programs, and other possible implementa-tion measures? Twenty-seven respondents comment specifically that breath tests should not be used. Regarding observation and assistance programs, almost all 36 utilities responding to the rule notice claim to have some form of observa-

, tion and/or assistance program in operation. Other measures (e.g. , psycho-logical tests, other implementation measures) are not commented on specifically within the context of the " Fitness for Duty". rule.

' A +4R 13 . Enclosure "0"

. i The rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and techniques for determining fitness for duty (e.g., breath testers, psychological tests) taking into consideration circumstances unique to its facility. However, in order to facilitate enforce-ment of the rule, the Supplementary Information for the rule specifies that written procedures developed by licensees will be expected to respond to the following nominal guidelines: (1) a statement of responsibilities of program

. . coordinator, managers, supervisors, and employees who come into contact'.'with persons with unescorted access to protected areas; (2) an observation procedure;

, . - - (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet the criteria for alcohol / drug abuse or emotional instability; (4) an administrative procedure for processing individuals who refuse assistance and/or

' -- who wish to exercise their appeal rights; and (5) training provisions for all personnel and management to acquaint them with the licensee's fitness for duty procedures. Additionally, an industry task force staffed by representatives from the Institute of Nuclear. Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

c. Should the " Fitness for Duty" rule be limited in scope to personnel l

with unescorted access to vital as opposed to protected areas as defined in 10 CFR S 73.2? Ten respondents comment that the rule should be restricted to vital areas; five comment that it should include protected areas. The NRC staff believes that the rule should include all protected areas. Selective application of the rule to only persons with access to the more restricted vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted acce',s to protected areas will not penetrate vital areas through assistance from or coercion of - l persons with unescorted access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs,

d. Should the " Fitness for Duty" rule apply to NRC personnel? Thirty-three respondents comment that it should; two comment that it should not. The

~

/ /) (,8 la Enclosure "D"

s revised rule (Enclosure "A"and annotated in paragraph 4.f of this enclosure) has been expanded to include all persons, including NRC Personnel, with unescorted access to protected areas of the plant. The primary reason for this change is the utility's ultimate responsibility for the behavior of all persons with unescorted access to~its plant, and the NRC has no good way of guaranteeing

~

' that its personnel resident at nuclear power plants, or visiting those plants, will always be fit for duty.' Licensees wil'1 be expected to limit their imple-

. mentation of the rule with regard to NRC personnel to those procedures they exerc'ise with their own employees arriving for duty or while on duty. In the

-- ~ event'that a licensee questions the fitness for duty of an N'RC employee, the licensee will be expected to contact an appropriate' NRC office or official for guidance. The licensee will not be expected to process NRC personnel through

-_ fitness for duty actions, punitive or non punitise, established for licensee personnel,

e. Should there be specific blood alcohol level limits? Three respond-ents comment that there should not be specific blood alcohol levels estab-lished; one respondent comments that there should be levels established (no specific level recommended). The NRC staff currently believes that specifica-tion of criteria for unfitness for duty (e.g., blood alcohol level) should be left to the discretion of the licensee.

bAbK 15 Enclosure "0"

I 1

1

! RESPONCENTS TO FEDERAL REGISTER  ;

l NOTICE CN " FITNESS FCR DUTY" RULE 1 ,

l Respondent number Respor. dent identifier .

i

~

1 Private citizen j - - - . . .- 2 Private citizen

. 3 Private citizen l

) 4 Numanco, Inc.  !

] 5 International Brotherhood of Electrical Workers l 6

Nuclear Consulting services .

7 Private citizen j 8 Private citizen i

4 9 Private citizen l

i 10 Private citizen j 11 Private citizen -

[

j- 12 Private citizen *  !

, 13 Sacramento Municipal Utility i j District i

, 14 Private citizen 5

15 Private citizan  !

16 Private citizen  !

l 17 Oil, Chemical and Atomic Power  ;

{ Workers International l

i 18 Private citizen i

19 Private citizen i 20 Private citizen  !

! 21 Niagara Mohawk Power ..  !

l Corporation l

22 Washington Public Power Supply

Company .

I c

i 23 Private citizen j 24 Private citizen l 25 Private citizen  !

) -

~

/)f(,8.

i

. 1 Attachment to Enclosure "0"

.? . .- ,

o e i e

Respcndant (dontifier Respondent number 26 American Nuclear Society Standards Cer_~.ittee 27 -

Baltimore Gas and Electric 28 - Arizona Public Service Co.tpany 29 Northeast Utilities Service Company 30 Ouke Power Company

. . ---._, .m 31 Wisconsin Public Service Corporation 32 Bensinger, Dupont & Associates 33 Florida Power and Light

- . < - - Company

~

34 Boston Edison Company 35 Detroit Edison 36 Illinois Power Company 37 Kansas Gas and Electric Company 38 Portland General Electric

. Company 39 Behaviordyne Psych 61ogical Corporation 40 KMC, Incorporated 41 Edison Electric Institute 42 Consolidated Edison Company of New York, Inc.

43 Washington Legal Foundation 44 Consumer Power Company 45 Stone & Webster Engineering Corporation 46 Houston Light and Power Company 47 Hississippi Power and Light

... Company 48 Debevoise & Liberman 49 Commonwealth Edison 50 Rochester Gas and Electric

. Corporation 51 Pacific Gas and Electric Company

[4l E

, 2 Attachment to Enclosure "0" I

Respondent number Resocncent identifier 52 Nuclear Fuel Services, Inc.

53 Florida Pcwer Corporation i 54 Carolina Power & Light Company 55 Bechtel Power Corporation 56 Public Service Company of Colorado

__.,, , 57 Pennsylvania Power & Light Company 58 Yankee Atomic Electric Company 59 General Public Utilities Nuclear Corporation

~^-

60 Texas Utilities Generating Company 61 Cleveland Electric Illuminating Company 62 Gulf States Utilities Company 63 Virginia Electric and Power Company 64 Publics ~erviceIndiana 65 Northern States Power Ccmpany 66 South Carolina Electric & Gas i Company 67 Georgia Power Ccmpany 68 Professional Reactor Operator ,

Society l 69 Long Island Lighting Company 70 Atomic Industrial Forum, Inc.

71 Private citizen 72 Theophilus, Inc.

73 Union Electric Company Mc.s

. 3 Attachment to Enclosure "0" e

E!iCLOSURE "E" 9

8 e

0 6

e e

e O

e e

9 4

e e

8 e

A%%

S

-.-..s__._._____._ ________,__._,j

l

• m-3  !*r der:I Retster / Vol. .t?. NS.151 l 'Su'#dtv. ..ucust 5. te! ! Nmd Rutes

! revisica of de see::..ed percentges Regulatory C:=mbi nn. Washi rtes, ne en to the protected eres of the purs: ant to j tc00J(c;5; D.C. M*.S. Te!r;5cne pct ) 44-D42. humed !.:ihty are nat unfit for dJty. f

• • * * * -' *t;Pr"LEt?ttriaa.Y t*:renua? !C Us Al this time, estaMishe:ent of specifit ye :.n. as r.no t'ad 6Mt.a uol ** * . Cer::nission hss f:.und Gat the numces c:-12 .a 13 be used 1o determint Ihnese suka.se coc4 asis.es.e *..a , cf reported drug related inctdtnis is fcr 6.!y and spectlic mededs of which henare or cent:acter er.;i:3 eea  != pie ==ntatica of tbs recutrement heve

. . wen artt.sied c: t r=osted has he s ! cit to the hee:see.ne

• Nt[Ct. EAR REGULATCRY , . In=reased schstantiady os er the past

• C::missio: so!Jc:ts publi: cc :rnent en three pers. b 15 J there was'ene such N Qs utablishmot cf s;nfic funess CCL'.r t!SSICN reported incident.ic 1930 then were .-teria {such as de Fede*al Adattu five, and in it*1 then w ere tw elve. Al .!nistration's re;u!ations regerdJns

'10 CTH Part 50 . .

- c tw #6 embers of cvil aircrsft in 14 CDL These incidents have invelved bcth Personnel Wit.iUnescorted A'ecess to cadte use er pcuession of cc:gs and 5141(a)) for nuclur;! ant;e senvM:),

Prote ted Araas; Mt .ess for Duty c icanal repor:Jn to werk un:ter the sgcuc methocs ofI sp!ementauon of I o a b Le ot est[y ba es a g

' reported coctrol!cd substuce 1:vch ed

'"Mgau:ns,

- pecAMcocal tuts.

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!s thess incidentr. however. incident.s bancralobunann prqams.

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l systs.nn The Cer o.u!:n is proposing ,lasc!d=3 a=phetaral es. cocatae. {p f,,],7,nfc, 77,;$,ar s.and to amendits rer!.iacons to recu!n , hudLa.pr.e:c cS . I c a;pon4ge injc.cateha commere!al anc laduzinalfs:uities - ' mathaguaionee hav:bne, and also o' tes repc 1:d.

ti sed unde to C7R 50=[;rimartly"

• As a rvvult of orse in=idents. tha h~nc [',',8$", ,[*[.h,huch*

• c:r.!aar pcmr plant hansees) to . C:!!ce cf bspecifes and Tnfor:sment antsa ta wtal anas (;ener:Uy. a

, establish and L=p!e=ent cc:treta (C) has established a Cruf Abuse Task .rstssted ans is any area encernpassed -

du!gned to assun that pe s: anal with Toma to deve!cp a genen: apptcach to by ^~ys!:al harders and to which access snesecrted ac:::: to prctected areas are the prob!ais of possihte drug U.nc!uding g3 [.,~..,p.. whl!e a dal area is ey n:t under the inner:ca cf d.ats or clich:1) abuse b lic:nsee er c:ntract:r eJ:chel or oG4.twise unfit fer duty.na ;ersennel Els [eveloping a NtJREG hl qg7,*T$d La

, pc; srd ra!e was deve:: pts ter.2:se cf report w hlch describes curtent practles $.3 g, g pgf',fg*,[,$,

y a c:r. cure that carasin c s: .nelcodd re;a.~ist the abas4 of d. ass and alechol .

ne Cc =$.u!n wan m shw neh he::rne unnt f:r d:ty due to the effects- . by other ret:r.!:t:ry or.anl:stiens aed by .Qnue to do e,ie; pace industry.n s hWC re;crt. entlt!:d ,

of rut 4t: ness su:h av a!: .helor drws ta.e into c:nsicerat!cs :t enir fa!rness =

ar1 thereby. c:t.:d pstf:rm scJo : thet  %:vey of bdustry and Cove nment. .

~~ lzht adveruh Impact the health erid sa Pre;ratna to Ccmbat Drug and Aje:hel D'Edd*'E"**"u#8#D 1 at also any cond cts or ' M *"* k safe y of the ;ubtle.ne rudt of the '

Abuse." sheuld mv, useful to !!cenu e r ,

9 whes they develep the fitness fer duty

- hrep; sed r:Je wcu!d to 62.placentatins programs that of wculd fitness for du*y be. required by t:e "U~'*8I'28*cm. de mpend 8 ""l m "' is "Nba I8 N' Q *-

worded.ne Com=! sioninntes public pr:g ar:s ledustry. wide dat would be preposed rule. . .

. re abe ep te nef tjtensee7e lo es " '

• af a dr er :: r , C r- a es u sar c penennelwits utese::ted access to c: ments en whecer de rate hedd Catcs: Car .=ent ;ericd expires Cetaber protected areas c!factbtles issued abo n; ply toNRC penentiel and es l o;eratint lle::ses under to CTR 33O(b) 4.13&:. Cc: .=enta tvesivec efter th!s whtder taen should te specJie b cod .

date will be considered if it is practical cr to CTR Scr.n!s estescry of -

akchollevel!!mita, l

e do so. but assurance of consideration perscanc!was chenes ber.a:se any j

saznot be sivas except as to comraanta perses with unucerted ac:eu to a ' Faperiverk Reduct!ca Act

recalved on or before this data. protected area may have the o; pert nity As req: fred by Pub. l.sS-311.thle Ansacssts: Submit written comments to aHect adversely the health and safety 7.,.osed rule has been subm1!ted to the and suggestjens on the proposal end/or c(the pubtle thr:nh as unobserved act. Odce of htanagement and hd:et fct l

the :pportIr4 value/ impact analysis to whether intentions! or ina dvert ent. lt clearance of its informataos cauestion

• does not lac!ude b'RC persennel.

the Secniary of the Cornminios. U.S. @ments.

Nue!e st Regulatory Comminion. Persons would be considered unfit fer duty if the!r facdt es w are afieeled in a Re;ulatory ricaib!!1ty Act Cartificatles Waslington. D.C. : J53. Attention:.

Docketbg and Service Eranch. Single way contrary to safety by substances Based upen the informstf on available copies of the value/Irnpact analysis may such a's alcohol or drugs. Ad6tionally. 'at thla stage of the ru!emaking be obtained en request from the contact the phrase ** * ' or otherwise unSt Icf proceed!ra und in accordance with the

• '*1s Intended to require l

person listed below. Coptes of Reg.alatory Flesibility Act of test S comments received on the proposed duty consi 'deradon of the effects of other U.S.C. CC3(b), the Cornrnission hmby emendment and the valueltmpact factors when detste!ning as certifles that. lf pretnutt sted, th!: n.le analysis may be esamloed and copled indviduara Stness for duty such as will not have a signincant e<snomic for a fee in the Corn:ntnien's Public fattrue, stress.illnese and ternporary

• tcpact on a substantial number of sma!!

Document Roets at 1717 H Strut NW. physica11=pairments, entiues.n!, proposed rule afrect Washington, D.C. between 4.15 a.m. and ne proposed rde would require

• personnel with unocorted atten to 840 P.m. commercial and indus trial fa ci!!tle s protected arcus of facahues licensed

'* poa rumtn INeonAntsoN comracT!

• licensed under to CTR som to estabt! b. under the provisions of to CTA 50:.:for E13a W.hferschoff.Cffice of Nuclear doeurnent.and implement procedures to which an operatirig license has been Regu! story Research. U.S. Nuclear anure that personnel w 6th unescerted granted.ne cornpa des that own these S NsE f _ .-- - - - . _ _ _ _ _ _ _ _ - . _ _ _ _ _ _ _ _ _ a

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f ca:.cs do rut fil witha tS expe of 3. A new pmenh is)la adied a Fo:-O.f.Ca ! Aemr.svtics tenad.1c5

,-  : ::1 en' 1.:s'* M fc rth in the '

! !c2A to resd es fe:.o-s: ca.,ny :;:. ; As c.;e. .'.1W Wr.Mr; ten.

• Tw;.le.c =y flex.. e.ry Act er tha arna2

• i M Coct.ons of Luneen, D C. as seen es they are rece.ved.

b. sir.es: sac st:Pdards s.ct c-t 6 re-Att;:Pe in ed by the St ail Sustress * * * * * - '""N# " " * #

Aceinistrauen as u CE Part 222 (m):1) Dch licesee with an omsti :; Edard h!. Lou;hhn, Ch;ef. er Patncia b WP.i.: it is recept:ed Qat ca . Lc = 2!asted tndet ! $02 *b)or i g C:.Ny. Assistert Chit!. T.es.:.*atcry centraeters trav fa'd wittJn the secee of shad e:tablish, docu:nent, and A.*4.s ON!s;cr. C.;teau of Interna'Jenal, smail ent. ties. it 1 a s been detm.d  !=;iement adeccate wn: ten ;teer6:-*s Aviation (220 r5-it 61. Qvd Bat Qe 1:npact en those c=ntractors due desired to ensure bat, wh.lr c i de:7 At snavuca Scard.1t23 C.>.v.evjcut to $e implementa: ten of bis rt.de dces 6e hcer.ne's and its cent ac*.m' . A$ ence. N.W. Wa s hirgton, D C :t4:A

. ret meet the thre: held of a sMnific.snt penennel with taescer.ed at:ess to suPPcuturant tuomatacec ec:nce!c Impac .However. lf any prettesed aress are not-

. - inde;endent cost ectc.r w ho scrdcas (i) Under the irJ1ucce cf n'c:hnh Dack ;round .

riudear power phnts er coepon':sts (U)118!?4 any cin.;s dat a!!:ct thsdr t on },; ,4,3gg. .de Coverr.tnects of beheves thue wculd be sipficar:t .

s, cuttles i.n any way cont ary to srfery; - Se CrJted States and Japan c:r.dJded C ec:msmic L:n;act. de centractet shcula or. -

c=rnent on thia Io the Corninissicco lisil O$e,rvrise t=*.t fer du'y bess:se povisic:ak bterim a; eement dat for

1. • the f.nt 1;=e ; nidea UA des' pated IJst of Subjects b :C C R Tart t:0 an r.cn e::. pated a!r carners wth the

? cec [d e" c - '

rt;ht to c;ertte charter sem:es la the Ar.titru s t. Ca s slIIed !:ferma tice.i;re , perfer=ance in any aw ey cc:trary to

- ~presentic: Inietpver:.:r.eatal re)atic .a. safe *y. ' .'. . * .. - pg.y pg ,,,.iet undet coun'.ty d.

Edest rower;: arts and reacters. ,, , - (2)Lch ttenace sha'3 =abtab the c ;f,.i,.h 11h e pdah s%unW Pes.:d'y,Esd'a'J:s :rctecte: Ber.c::r . wr.tten reccids cf due ;-ecad:res fcr Bat.hcrete ere.scr. dest;:sted car .c.rs s:C:; enteria. Re;crt::g repJtementa. . ,, . ,tha h!e cf de plant.- ,

km he seMy nn. nod b

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- -- PART 53--00.'.!IS* .C L!OINS:NG CF U"a muht: pes. C C. cle ::.h ds; cf and 6e desipated sched6.!ed carne s .

pp,0 m:nen Agg grtp,;. TION IJ F .'t...--

. . aUcwed to no panidpate wen repired TAC:LITII3 . .

I*' "d"#.Rr; .la te y C: .:.!:si:=. !o ad.hett ta the :nere et:'.rt; tat John C1tei ta, citr.erweri!r.e a rules af Ja;as.

. Tc' the tease .s et cut b the . 3,,,,.g 3,e7,fe,7,7g3, gg,nf a.s prea=:,.e and p;;1uani to de A!c::dc

• WhIle re;rtie:tir4 a ef;:1fca:tstep Er.erty .\ct c.. 5!.8. a a_ : ended, ce .a. , f:mard b U.S..iapas charter relat: s.

C ergy Recr;ar.:utien Act cf17*4.ca , .

u.u sceu niees.=.' * ..

de hter.= h; se=r31 ders L-Jt de .

a te..ded and se:tica 3:3 cf T'.Ce 5 cf ~ .; hu d dade s dat =ay b the UrJted 5tatcs Cm's, notice !s he;eb7 e. stated b a:y cre year to 230 ent.ws-cst:ter C:ghts fer de alrunes cf ead sa ra phat ado;u:n f ' s f.: owing , - CIVit. AERONAUTIC 3 ,,00ARD .

a= era. ment to to Cs .s,att :la

, , .y,3 g g g .h lara c o..*cf 14 CIR Part 3:0 '- ,*

Jr.terut alteady dow s by U1 ca:ners a a [th.!y dtat: b o nac4 chu en toJapa:undu de co i., .uts to read teuower fc,.en'fet Part !3 1 7"J: Coc5et a b31 bated: Arh 30teW laten:*. Ar ee9ect, and b 11:2) '

,, , , aztjdpatics of us L,minest fer nt!

AutientTt Se es.1:1. 5 .4. ttt. t t:. t t:.1 2 Procedure's for Awatc!ng 'fspaner.e ratificatka. we te!ieve lt r.e:auary ts '

8^"

.rNdeh:$7 . C?.arter Authcrtzat!ons , adopt. ca as t=erpacy basis. -

I "

2r:. =:stp an.::$' 3 0, "'.Ei.':'.

".  : '.*",'uO'e. t.4.,,5Est.

,,, un," ' actrecvt Cv0 Ae-c:actJci "F. Deerk cf 2e f.nt3yeat t! r.au*c'W:  :' " E * ~* b

..y g n[.,q .

8 ACTiene Net!ce of pre;cs ed r:*e=s'ednt f.Jg$)t autica.:sti:ns arcent these US 0 c. r'er s,een sua a:.. i,Lewn s,.:. s.:. a -

Sitt.21(4:U.S C .".t:L Se ct.e .s !.w ' cat sw..u,m A, ei, ,., erne- et -

""'"**'d"T"'""*"-

between de UA and Jacan aucws each '.'.'s wedd. of ccane, pmfu nct u also !nsed vder sn. tn rA stat. 954. as

's As' h to pdm m e have to aCocate B:se rtwly wen is ed r r5 35a , way chsster Clghts between the two . char'.n c; hts. Ho m es u. Be mHed

• Us C =:s;. . countries ea ch yeat. 'The CA.'l proposes as adabitty ar.d p:tenflat to s r :T.unt.,:

rar the nrrein ef see.::1 ca stat.s9t o precedures for alloc.atira the f.nt year's, a!!act UA.jspas ais utvice areended Is2 U.S C =?31.18 to to (a1. (b), 330 C;; hts to interested UA a! runes. e penuJun. courled with our destre la e

a nd Icl. tru. n 44, 50 a s, mR and mra al Gran:'!ader authenty would be al ctisd ensure that dry am promptly asd ue loved udu uc. ten t.: Stat e4a. as eqdta,bly distnbuted. penuac,e us dat a areended let U.5 C stb 1h 18 mio(b)and to cena!s striines and de recsh!r.4 fit; hts would be awarded by lottery. the more responsible coune ef,actee la (eland mt4 a e issued udn ut tatt e4 for us, at the outset. to ests'allia Stat. $4s. as a nended (s:U.S C: tfl3 sed ast tA 1532.

' Ii 50 t!(eJ. 50Js bl. to 70. Sc.r1. far:. end

• DaYtm Certinents Comanents and other rthy: Au'Ievset f recedurn to govem thelt use.s Mrs are issud undu sec. teto. to Stat, ga Infor7.ation recalved after this date wCI ,

as an ended (4: U.S C ::01(o)). . be considered by the Daard caly to the Ncnt pueduWs. . 5 a:.'eu

w. m s. ew inie ..u ie e...N..n uCii W

2. A new par'agraph (yJ ls added to *

.,dny on.,,nu ems.w os e onow 153.2 to f sad a s follows:. .

Accatstts:' Twenty eeples cf cortments 4 'I "' # "s erthu h+

• ".r"innu..s e n"'e s'; rw ^a

..as eey, o"v.'t.

- . should be sent to Docket 4ca71. Cyd e e e rs 150.2 cefWuone. .- . o g,, g,i,, ,,, , , g.,,,, , ,,,,, . a e ts. e.e c m

, Aeronauties Doord. tr.*.5 Cor.necticut rwoer.o r. ,d e r oomo .mmi s mi.

. " Avenue. N.W Wa shtrigten. D.C. 54:3. IIed hea utatut tre rwr'ew =e=8a sne (y)

• Protected area" entant an art a

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Indhiduals may subtful their views as

. encerr.psssed by physical barriers and conpurners without reling multlple to which access is controlled. .

copics. Cominenta may be enemined la .i,"I,j,'.N,7,'".e,',.l*MM,"

is rem ametre. q

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i ENCLOSURE "F" O

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The Honorable Alan Simpson, Chairman Subcommittee on Nuclear Regulation ,

. . . . . ~ Committee on Environment and Public Works ~~

. . - --United States Senate Washington, DC 20510

Dear Mr. Chairman:

The NRC has sent to the Office of the Federal Register for publication, the enclosed notice on an amendment to the Commission's rules in 10 CFR Part 50.

The amendment will require licensees of nuclear power plants for which operating licenses have been or are being granted to: establish and implement adequate written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas,_while in those protected areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty.

Sincerely, Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

Amendment to 10 CFR Part 50 ,

cc: Senator Gary Hart G

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The Honorable Alan Simpson 2 MAILING LIST The Honorable Morris K. Udall, Chairman Subcommittee on Energy and the Environment .

Committee on Interior and Insular Affairs ~

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United States House of Representatives Washington, DC 20515 *

- cc: Rep. Manuel Lujan

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~The Honorable Richard L. Ottinger, ChaireIanI'

.- - --Subcommittee on Energy Conservation and Power Committee on Energy and Commerce United States liouse of Representatives Washington, DC 20515 cc: Rep. Carlos Moorehead MV"

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NRC REQu' IRES LICENSEES TO ESTABLISH PROCEDURES TO ENSURE FITNESS FOR DUTY AT NUCLEAR POWER PLANTS The Nuclear Regulatory Commission is amending its regulation to require that

', . utilities licensed to operate nuclear power reactors establish and implement

- v--- _ written procedures to provide reasonable assurance that personnel with unescorted

,.,.___ access. to protected areas of a facility are not under the influence of drugs or alcohol or otherwise unfit for duty,

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The Commission believes the change to Part 50 of its regulations is needed to ensure that personnel unfit for duty are not given the opportunity to adversely affect the health and safety of the public in the operation of a nuclear power i plant.

1 At this time, establishment of specific criteria to determine fitness for duty is being left to the individual licensee. The Commission wants to allow each licensee to develop procedures that take into consideration not only fairness to its employees and due process, but also any conditions or circumstances unique to the facility.

j The requirement to provide reasonable assurance that persons are not "otherwise unfit for duty" is intended to mandate consideration of factors such as fatigue, stress, illness and physical impairments.

l 1

A proposed rule on this subject was published in the Federal Register on J -

August 5,1982, for public comment. The final rule extends the requirements to all personnel, including NRC employees, who have unescorted access to protected areas. In the event that a licensee questions the fitness for duty of an NRC employee, the licensee will be expected to contact an appropriate

! NRC office or official for guidance. The licensee is not expected, however, to process NRC personnel through fitness for duty actions- punitive or nonpunitive--

established for ifcensee personnel. A similar process is expected to be f4bg 1 ,

Enclosure "G" r

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followed for licensee contractor personnel unless otherwise agreed by the licenseeandcontrdctor.

Utilities currently licensed to operate nuclear power plants must develop written procedures by (nine months after publication of the

_ . ... . final rule in the Federal Register on . --

). New licensees must 3 develop the proc'edures_by the same date or on the date of issuanc,e of an operating license, whichever is later.

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/ '* UNITED TTATES

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\[ NUCLEAR REGULATORY COMMISSION p c;

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llAR 41 1%3 Ph MEMORANDUM FOR: H. enton, Director, NRR -

gR)DeYoung, Director,IE

.. G. Cunningham, Director, ELD J. Davis, Director, NMSS

_. _~ J. Felton, Director, DRR J. Fouchard, Director, OPA FROM: Karl R. Goller, Director Division of Facility Operations Office of Nuclear Regulatory Research

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SUBJECT:

FINAL RULE CONCERNING FITNESS FOR-DUTY FOR PERSONNEL WITH UNESCORTED ACCESS TO PROTECTED AREAS OF NUCLEAR POWER PLANTS Please review the enclosed final rule on fitness for duty for personnel with unescorted access to protected areas of n0 clear power plants, and provide ce with your concurrence and/or comments by close of business April 4,1983.

1.

Title:

Final Rule Concerning Fitness for Duty for Personnel with Unescorted Access,to Protected Areas

2. Task Leader: Thomas G. Ryan, HFB/DF0/RES

3. Task No.: HF-129-1

4. Cognizant Individuals: R. Benedict, NRR T. Allen, NMSS L. Bush, IE T. Dorian, ELD

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5.~- Backgr~ound:

The Commission has indicated that a rule is needed to require licensees to prepare and implement written procedures providing reasonable assurance that all persons with unescorted access to protected areas of nuclear power plants, while in those areas, are not under the influence of alcohol, other i drugs, or otherwise unfit for duty. This indication was provided by approval

' to publish a proposed " fitness for duty rule" for comment, which was published in the Federal Register on August,5, 1982. On January 20, 1983,'a revised y s3 0%,,ani o ,u &

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H. Denton R. DeYoung

u. Cunningham J. Davis J. Felton MAR 21 79g3 J. Fouchard 2 rule, responding to public comments,.was submitted to appropriate NRC Divisions and the Regional Offices for review and comments. The final fitness for duty rule, presented in the enclosure for your concurrence, resulted from consideration of Division and Regional Office comments and NRC staff coordination.

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Karl R. Goller, Director Division of Facility Operations Office of Nuclear ~ Regulatory Research

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Enclosure:

Commission paper on Final Rule .

Concerning Fitness for Duty for Personnel with Unescorted Access to Protected Areas cc: V. Steilo, CRGR E. Blackwood, CRGR -

R. Fraley, ACRS R. Haynes, Region I Administrator e J. O'Reilly, Region II Administrator ,

J. Keppler, Region III Administrator J. Collins, Region IV Administrator R. Engelken, Region V Administrator

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. For: The Commissioners

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Fr6m:' William J. Dircks Executive Director for Operations

Subject:

FINAL RULEMAKING CONCERNING FITNESS FOR DUTY FOR PERSONNEL WITH UNESCORTED ACCESS TO PROTECTED AREAS

Purpose:

To obtain Commission approval to publish a final rule in the Federal Register which would r.tquire development and implementa-tion of written procedures providing' reasonable assurance that personnel with unescorted access to protected areas of nuclear power stations, while in those protected areas, are fit for duty.

Licensees issued operating-licenses under 10 CFR 50.21(b) or 50.22 will be required to develop written procedures acceptable to the NRC within nine months after the effective date of the rule, or the date of issuance of an operating license, which -

ever is later.

Background:

On August 5,1982, the Commission published for comment (47 FR 33980) a proposed rule amending its current regulation 10 CFR 50.54, " Conditions of Licenses" to require licensees to develop and implement written procedures concerning fitness for duty.

(See Enclosure "G" for Public Announcement of proposed rule.)

ADM sent copies of the proposed rule to all affected licensees and other interested persons. .

Seventy-three responses containing 310 comments were received (see analysis in Enclosure "0"). Approximately forty percent of the respondents favor the rule. The remainder question the necessity for the rule, stating that licensees are aware of the

_ .. . _ . _ . . fitness for duty problem and are taking appropriate remedial action. Included in this group are 22 of 36 utilities respond-ing, eight of 10 utility suppliers responding, and six of seven private citizens identified with the nuclear industry.

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Contact:

T."G. Ryan, RES 443-5942 l

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The Commissioners 2 Approximately one-third of the coraments involve socioeconomic and implementation issues. Recommendations were received for changes in the rule involving its wording, scope, and persons affected.

The proposed Federal Register notice (Enclosure "A") includes a

- - brief summary of major issues raised in the comments received.

Enclosure "D" provides a detailed discussion and resolution of all public comments.

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A total of 102 comments were received in response to five specific questions posed by the Commissioners in the Federal Register

' , _ _ _ _ . _ _ _ _ notice. Nineteen respondents are in favor of the Commission establishing specific fitness for duty criteria; three respondents feel that these criteria should be established by the individual licensees. Twenty-seven respondents comment that the Commission

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should not specify specific methods (e.g., breath testers, psycho-logical tests) for implementing the " Fitness for Duty" rule. . Ten respondents favor limiting the rule to vital areas of the plant; five favor its application in all protected areas. Thirty-three respondents favor extending the rule to NRC personnel; two do not favor such an extension. Three respondents comment that the NRC should not establish specific blood-alcohol level limits; one respondent favors NRC establ.ishing limits but does not recommend a specific level.

The final rule contained in Enclo.sure "A" includes coverage of NRC personnel based on the arguments that the utility is ultimately G responsible for the behavior of all persons with unescorted access to its facility, and the NRC has no way of guarantee'no that its t personnel resident at nuclear power plants, or visit' no those plants. will always be fit for duty. Licensees would be expected

'to limit their implementation of the rule with regard to NRC personnel to those procedures they exercise for their own employees arriving for duty or while on duty. Licensees would be expected to remove NRC personnel not fit for duty from protected areas of W the plant and notify an appropriate NRC office or official. The N licensee would not be expected to process NRC personnel through fitness for duty actions, punitive or nonpunitive, established for licensee personnel. It is anticipated that a similar proceT" will be followed with regard to licensee contractors' personnel unless other procedures are established by licensees and

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contractors. The rule also retains the word " protected" rather than using the term " vital" to describe affected areas of the plant. Selective application of the rule to only persons with unescorted access.to vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital areas through assistance or coercion of persons with unescorted access to vital areas, A%L

l The Commissioners 3 especially if under the influence of alcohol or other mind altering and mood changing drugs.

Finally, the rule onac not Eontain soecific criteria for deter-minino fitness for duty, implementation methods (e.g., breath testers, psychological tests) or blood-alcohol levels since the staff believes that these criteria should be established by each licensee taking into consideration circumstances unique to its

_._ ~ own facility. However, guidance to licensees for developing the required written procedures is provided in NUREG-0903, " Survey of Industry and Government Programs to Combat Drug and Alcohol Abuse,"

NUREG/CR-2075, " Standards for Psychological Assessment of Nuclear Facility Personnel," and NUREG/CR-2076, " Behavioral Reliability Program for the Nuclear Industry." Based on these and other

. _ _ _ government and industry fitness for duty program guidelines,

_w ritten orocedures responding to the " Fitness for Duty" rule, 9 in oroer to be determined adeouate by the Commission, will be p expected to include but not be limited to: (1) a statement of 4 responsibilities of program coordinator, managers, supervisors, Y and employees who come in contact with persons with unescorted (\

access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting 4 individuals who meet criteria for alcohol or drug abuse or emotional instability; (4) an administrative procedure for proc-essing individuals who refuse assistance and/,or who wish to exercise their appeal rights; and (5) education materials for all personnel and management to acquaint them with the licensee's D fitness for duty procedures. . The above guidelines are intended "

as interim criteria about which licensee and public comment will be sought. Comments on these guidelines received within 60 days of publication of the final rule will be evaluated by the NRC staff. Changes, if any, in these guidelines as the result of public comment, will be documented. Licensees and license appli-cants will be informed of changes in the guidelines by letter.

Copies of the revised guidelines will also be made available for review in the Commission's Public Document Room at 1717 H Street NW., Washington, D.C. 20555.

Discussion: The NRC does not have regulations which specifically address use

. . __ _ of alcohol and other drugs or the broader issue of fitness for duty of persons with unescorted access to protected areas at nuclear power stations. Since' operation of a nuclear power sta-tion by personnel not fit for duty could degrade the licensee's ability to operate the facility in a safe manner, development of a requirement concerning the determination of fitness for duty with respect to the consumption of alcoholic beverages, use of other, drugs, and mental or physical impairments which could affect a person's faculties in a way contrary to safety is necessary to protect the health and safety of the public.

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The Commissioners 4 The subject final amendment will require that licensees operat-ing facilities licensed under 10 CFR 50.21(b) or 50.22 establish and implement adequate written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty. Each licensee will be required to develop procedures wh'ich take into consideration not only fairness to, and due process,

~M for its employees, but also any conditions or circumstances unique to its facility. --

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The definition of protected area used in the final rule was taken verbatim from S 73.2(g). It was selected because any person with unescorted access to a protected area could adversely affect the

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health and safety of the public through an unobserved act whether intentional or inadvertent. .

Personnel would be considered unfit for duty if their faculties-were affected in a way contrary to safety by substances such as alcohol or other drugs. Additionally, the phrase "... or other-

. wise unfit for duty..." is intended to require the licensee to consider other factors when determining an individual's fitness for duty, such as the effects of fatigue, stress, illness, and physical impairments.

Consideration was given to incorporating this'" Fitness for Duty" rule into the draft proposed revision to 10 CFR 73.56 (Access

' Authorization Rule). Because of the different or.ientations of the two rules, i.e., trustworthiness (S 73.56) versus fitness (S 50.54), and the need to rapidly establish a regulatory basis

' from which to address the fitness for duty issue, the decision was made to keep the two rulemakings separate, at least initially.

After gaining experience from the implementation and use of these rules (e.g. , 2-3 years), the staff will reconsider whether these rules should be combined. Additionally, the staff considered extending the rule to nuclear power plants under construction.

It was determined by the staff that these plants should not be included in the rule since they present no potential adverse effect on the public health and safety due to a nuclear accident. _

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The resource impact on the NRC staff of this final rule is esti-mated to be two person-days per facility per year.

Recommendations: That the Commission:

1. Approve publication of the final rule as set forth in Enclo-sure "A", to amend 10 CFR 50.2 and 50.54 by requiring that 446 e

e a

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.60 The Commissioners 5 licensees operating facilities licensed under 10 CFR 50.21(D) or 50.22 establish and implement adequate written procedures designed to provide reasonable assurance that all persons

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with unescorted access to. protected areas, while in those 1~ . protected areas, are not (1) under the influence of alcohol, (2) under the influence of any other drugs that could affect

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their faculties in any way contrary to safety, or (3) other-wise unfit for duty because of mental or physical impairments

. _ ___.._c,.

_ which could affect their_ performance in any way contrary to

, safety. .

2. In order to satisfy the requirements of the Regulatory Flexi-bility Act, 5 U.S.C. 605(b), certify that this final rule will not have a significant economic impact on a substantial number of small entities. This certification is included in the enclosed Federal Register notice.

3. Note:

a. That, in accordance with 10 CFR 51.5(d)(3) neither an environmental impact statement nor a negative declara-tion need be " prepared in connection with this rulemak-ing action since the amendment is nonsubstantive and  ;

insignificant from the standpoint of environmental impact. e i

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b. That the Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public Works and the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce will be informed.

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c. That ADM will send copies of the final rule to all affected licensees and other interested persons follow-ing Commission approval.

d. This rule contains information collection requirements that were reviewed and approved by the Office of Manage-ment and Budget.

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e. That a public announcement will be issued (Enclosure "G")..

f. A Regulatory Analysis is attached as Enclosure "B".

g. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and A%6 e

o.

~ The Commissioners 6

~ t the reasons for it as required by the Regulatory Flexi-bility Act.

Scheduling: Recommend affirmation at an 'op'en meeting.

(

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~ ' , _ _ William J. Dircks ,

Executi've' Director for Operations

Enclosures:

"A" - Federal Register Notice of Final Rulemaking

, , __ "B"._- Regulatory Analysis "C" - Analysis with Respect to .

Periodic Systematic Review of Regulations ~

"D" - Resolution of Public Comments on Rule Changes to 10 CFR 50.54 "E" - Proposed Rule on Fitness for -

Duty (FR 08/05/82)

"F" - Letters to Congress "G" - Public Announcement ,

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w ENCLOSURE "A"

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[7590-01]

NUCLEAR REGULATORY COHHISSION

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,_ 10 CFR Part 50 Personnel with Unescorted Access to Protected Areas: Fitness for Outy

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AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Commission is amending its regulations to require that certain licensees establish and implement written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty. The Commission

, has approved this rule 'because of a concern that certein persons could become unfit for duty due to the effects of substances such as alcohol or other drugs and, thereby,' their performance could adversely impact the health and safety of the public. The result of the rule will be the implementation of fitness for duty procedures industry-wide that are designed to provide greater assurance of safer operation of licensed facilities. Licensees issued operating licenses under 10 CFR.50.21(b) or 50.22 will be required to develop written procedures acceptable to the NRC within nine months after the effective date of the rule, or the date of issuance of an operating license, whichever is later.

- t EFFECTIVE DATE:

FOR FURTHER INFORMATION CONTACT:

Thomas G.'Ryan, Off. ice of Nuclear Regulatory Research U.S. Nuclear Regulatory Commission Washington, D.C. 20555,(301-443-5942) 1 Enclosure "A" 3

[7590-01]

SUPPLEMENTARY INFORMATION: The Commission recognizes alcohol and drug abuse to be a social, medical, and safety problem affecting people in almost every industry and occupational group. For example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non _ fatal and 40% of all fatal U.S.

industrial accidents involve alcohol, at an annual cost of $12-15 billion.

. Given the pervasiveness of the problem in our society, the Commission deems it unrealistic to assume that alcohol and drug abuse, as well as other emotional and' psychological factors, do not touch the nuclear indus-

~~ - ~ ~ try. NRC sponsored research ectimates that 16-18% of the nuclear industry workforce are potential alcohol abusers. For reactor operators estimates rance from 22-25%. These estimates are derived from a Institute of Nuclear

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Power Operations (INPO) 1981 manpower survey,1 and the NIAAA Marden formula for estimating potential alcohol abuse.2 Estimates for ootential drua abuse among the nuclear industry workforce rance from 12-20%. These estimates are based on a 1979 survey of the U.S. adult population.3 Alcohol and drug abusers' job performance can be expected to be negatively affected due to the presence of, or withdrawal from, chemicals in their blood stream. For example, 4 ounces of alcqhol in the blood.

stream of a 165 pound male requires approximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize.

This is one reason other regulatory agencies (e.g., U.S. Department of Transportation) mandate specific periods of abstinence (e.g., 4 or 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />) for interstate truck drivers, commercial airline pilots, etc. , prior to coming on duty. Drugs other than alcohol such as cocaine and hashish require as much as 24-72 hours to metabolize. Additional information concerning the economic impact of alcohol and drug abuse on absenteeism and job performance is presented on page 6 of this enclos'ure.

1 Institute of Nuclear Power Operations, A survey of Occupational Employ-

- - ment and Training in the Nuclear Power Industry. Manpower StuBi,es Series, Report No. 1, September 1981.

2Marden, P. G., A Procedure for Estimating the Potential Clientele of Alcohol Service Programs. Department of Health, Education and Welfare Publication No. (ADM)80-908, Washington, D.C., National Institute on Alcohol Abuse and Alcoholism, 1980.

. 3Fishburne, P.M., Abelson, H.I., & Cisin, I. H., National Survey on Drug Abuse: Main Findings 1979, Washington, D.C., Government Printing Office, 1980.

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. 2 Enclosure "A" M

[7590-01]

A recent Tennessee Valley Authority (TVA) 1979 Report on its Alcohol and Drug Dependency Program states that the program served 350 employees during that year (one out of every 143). TVA estimates that its annual cost due to alcohol abuse alone is approximately $18.5 million. _An NRC

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Alcohol and Drug Dependency Program official estimates that the Commission

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program serves about one of avarv 100 emplovees annually. The annual costofalcoholabusealonetotheNRCbasedontheTVAcostformula,[s,s estimated to be acoroximately $1.85 million. When the TVA cost formula

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is applied to the referenced INPO manpower and NIAAA Marden data, the

- estimated cost of alcohol abuse alone to the nuclear industrv on an annual basis is approximately $175-200 million. As recently as miU 1981 approx-imately one-third Edison Electric Institute (EEI) member companies

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operating nuclear stations had no programs to deal with this issue. More recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05,

" Increasing Frequency of Drug-Related Incidents," reports a steadily increasing number of drug-related arrests and terminations being reported by the nuclear industry since 1978. -The Commission has determined, therefore, that a regulation is necessary which would require licensees to establish written procedures to provide reasonable, assurance that all

{

persons with unescorted access to protected areas, while in those protected l areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty.

The rule (amendment to 10 CFR 50.54) will apply to all persons, including NRC personnel, with unescorted access to protected areas in facilities of licensees issued operating licenses under 10 CFR 50.21(b) or 50.22. This category of personnel was chosen because any person with unescorted access to a protected area may adversely affect the health and safety of the public through an uncbserved act, whether intentional

_ or inadvertent.

Persons would be considered unfit for duty if their faculties were  :

affected in a way contrary to safety by substances such as alcohol or other drugs. Additionally, the phrase "...or otherwise unfit for duty...,"

which is included in the rule, is intended to require that licensees consider the effects of other factors such as fatigue, stress, illness, and physical impairments when determining an individual's fitness for duty.

A 466

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Enclosure "A"

[7590-01)

The rule will require that licensees operating commercial and indus-trial facilities-licensed under 10 CFR 50.21(b) or 50.22 to establish and implement procedures to assure that personnel with unescorted access

{ to protected areas are fit for duty.

At this time, establishment of specific criteria to be used to deter-

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minefitnessfordutyandspecificmethodsofimplementationofthis

, requirement are being left to the licensee. The Commission' expects each licensee to develop procedures which take into consideration not only

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fairness to, and due process for', its employees, :.ut also any conditions or circumstances unique to its facility. Therefore, the rule is broadly

, worded.

On August 5, 1982, the NRC published in the Federal Register

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(47 FR 33980) the proposed " Fitness for Duty" rule amending $$ 50.2 and i 50.54 of 10 CFR Part 50.' .A total of 73 responses containing 310 comments were received, all of which were' evaluated in developing the final rule.

1 The following discussion highlights the major issues raised in the com-ments received and their resolution.(comments received and a more complete I

discussion of their rest,iution are available for review in the Commis-sion's Public Document Room at 1717 H Street NW., Washington, D.C. 20555). ,

Comments were received on 16 issues grouped under the following four headings:

1. Overall agreement or disagreement with the rule, citing utility awareness or non-awareness of, and action taken to resolve, the fitness for duty problem; i

2. Socioeconomic issues (legal, union, monetary cost, morale) which might be raised if the rule is promulgated;

3. Implementation issues which should or should not be resolved prior to issuance of the final rule (elg., definition of terms, use of

,_ _ _ breath testers and other diagnostic techniques, impairment standards);

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4. Recommended changes in the proposed rule (i.e., inclusion of NRC personnel, appl,1 cation to protected versus vital areas of the power station, guarantees of effectiveness, recordkeeping).

. Approximately two-thirds of the respondents disagreed with the need ,

for a rule, stating in essence that: (1) the utilities are aware of the fitness problem and are taking appropriate remedial action, (2) the kM 4 ~~ Enclosure "A" l - .

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[7590-01]

NRC has not established a sufficient need for the rule, and (3) the rule

, should be part of a draft proposed 10 CFR 73.56 " Access Authorization" rule. Included in this group are 22 of 36 utilities responding, eight of 10 utility supplier responding, and six of seven private citizens

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identified with the nuclear industry.

The-Commission has determined that there is insufficient evidence

,, to indicate that the alcohol and drug problem does not touch the nuclear utility industry. Therefore, the Commisison is issuing a broad regulation

~ ~[ ~ ~ '" which allows each licensee to develop' written procedures that take into

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consideration not only fairness to, and due process for, its employees, but also any condition or circumstance unique to its faci]ity. The Commission considered incorporating the provisions of this rule into the

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behavioral observation program portion of a draft proposed " Access -

Authorization" rule. It decided not to do this because it felt that .

broadening the scope of the draft proposed " Access Authorization" rule would complicate and delay this final " Fitness for Duty" rule. The importance of establishing a regul_ation which addresses the specific issue of fitness for duty necessitates proceeding independently with the present rule. After some experience has been gained ,through the imple-mentation of both the " Fitness for Duty" rule and the draft proposed

" Access Authorization" rule (e.g., 2-3 years), consideration will be given to combining them. Additionally, the staff considered extending

, the rule to nuclear power plants under construction. It was determined by the staff that these plants should not be included in the rule since they present no potential adverse effect on the public health,and safety due to a nuclear accident.

Several respondents commented that the development and implementa-tion of " fitness for duty" procedures would cause the licensee legal and

_ _ _ _ nion,-related u liabilities, significant monetary costs, and would have a

- deleterious effect on employee morale. The Commission believes the licensee, its legal counsel, and unions can resolve internally legal and union issues, if any, before the licensee submits final written proce-dures to the NRC. Fitness for duty programs are currently being imple-mented without significant legal or union liabilities by almost all Federal and State government agencies, and the majority of regulated and non-

. regulated U.S. industries. Secondly, monetary costs should be minimal A%6

, 5 " Enclosure "A"

[7590-01]

for utilities which currently have in operation some form of fitness for duty program (as often claimed by the utilities responding to the public announcement). Nationwide, absenteeism due to alcohol and drug-abuse costs U.S. industry an average of $300 annually for every worker. Alcohol

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and drug abusers lose an additional 25% of their productive time when on

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the job, at an average annual cost to U.S. industry of approximately

$2900 per alcohol or drug abuser. The total cost to U.S. industry' annually is between $12 and 15 billion. Vith regard to fitness for duty programs,

- ' ' m-"- Wrich 1980,2 reports that U.S. industry benefits at the rate of 10 dollars

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in decreased absenteeism, fewer accidents, and increased productivity for every dollar it spends on fitness for duty. Finally, the Commission has found no documented evidence of experience with fitness for duty programs in other industries (e.g., civilian aviation, aerospace, electronics) which indicate that employee' morale has been affected necatively. On the contrary, alcohol / drug rehabilitation programs tend to enhance morale since the parent company is perceived as being interested and supportive of employees in solving their personal problems.

Comments concerning rule implementation issues such as definition of terms, use of diagnostic tools such as breath test,ers, or establish-ment of fitness for duty standards were received from 58 of 73 respond-ents. Most of these expressed a need for definitions and standards, while cbjecting to the use of breath testers. As stated above, the Commission believes that a broadly worded rule is needed which allows the licensee to develop specific standards and criteria for fitness for duty.

However, guidance to licensees for developing the required written proce-dures is provided in NUREG-0903, " Survey of Industry and Government Programs to Combat Drug and Alcohol Abuse," NUREG/CR-2075, " Standards for Psychological Assessment of Nuclear Facility Personnel," and NUREG/CR-2076,

_ " Behavioral Reliability Program for the Nuclear Industry."2 Based on these and other government and industry fitness for duty program guide-lines, written procedures responding to the " Fitness for Outy" rule, in IWrich, J.T., The Employee Assistance Program; updated for the 1980's.

City Center, Minnesota: Hazelden Publishing Co., 1980.

2 Copies of NUREG-0903, and NUREG/CRs 2075 and 2076 are available from the NRC Public Document Room, 1717 H Street NW., Washington, D.C. 20555; and the National Technical Information Service, Springfield, Virginia 22171.

A 4-bb>

6 - - - ' -

Enclosure "A"

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[7590-01) order to be determined adequate by the Commission, will be expected to -

include but not'be limited to: (1) a statement of responsibilities of program coordinator, managers, supervisors, and employees who come in h

contact with persons,with unescorted access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to 9

duty) for assisting individuals who meet criteria for alcohol / drug abuse A or emotional instability; (4) an administrative procedure for processing h 6

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~~~~~ individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) education materials for all personnel and management to

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acquaint them with the ifcensee's fitness for duty procedures. The above ,,,

guidelines are intended as interim criteria about which licensee and Q

public comment will be sought. Comments on these guidelines rec;eived within 60 days of publication of the final rule will be evaluated by the NRC staff. Changes, if any, in these guidelines as the result of public comment, will be documented.

Licensees and license applicants will be informed of changes in the guidelines by letter. Copies of the revised guidelines will also be made available for review in the Commission's Public Document Room at 1717 H Street NW., Washington, D.C. 20555.

, Five specific recommendations for changes in the proposed rule were received from among 56 of the 73 respondents. These involve: (1) chang-ing the word " ensure" to the term " provide reasonable assurance;"

(2) extending the rule to all persons with unescorted access, thereby including NRC personnel; (3) wording the rule broadly; (4) limiting the rule to " vital" rather than to the more general " protected" areas of the plant; and (5) eliminating the requirement for maintaining records of written procedures for the life of the plant.

The Commission has accepted recommendations (1), (2), (3), and (5);

each of which has been incorporated in the final rule. The word " ensure"

__ was changed to the term " provide reasonable assurance." The rule was "g extended to all persons, including NRC personnel, since the licensee is - 4 ultimately responsible for 'the behavior of all persons with unescorted l access to protected areas of its facility, and the NRC has no way of guaranteeing that its personnel resident at nuclear power plants, or visiting those plan.ts, will always be fit for duty. Licensees will be g

expected to limit their implementation of the rule with regard to NRC tC .

personnel to those procedures they exercise for their own employees bN

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A%G 7 Enclosure "A" l

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ENCLOSURE "D"

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RESOLUTION OF PUBLIC COMMENTS ON PROPOSED RULE CHANGES TO 10 CFR 50 PARTS 50.2 AND 50.54

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The following paragraphs report resolution of public comments received on the proposed " Fitness for Duty" Rule (Federal Register, 47FR33980, August 5, 1982). The announced comment period expired October 4,1982. A total of 73 responses were received, 43 by the end of the announced comment period, and an

..-- ---additional 30 responses by the Close of Business November 5, 1982. All 73 responses are included in the analysis. Respondent Control (Docket) Numbers (1-73) and associated Identifiers are listed in the attachment at the end of this Enclosure. .

Respondent (Commenter) profiles

• A total of 73 responses were received..on the proposed " Fitness for Duty" rule. Thirty six (49%) were received from the utilities; 10 (13%) from utility suppliers (e.g. , vendors, contractors, consultants); two (3%) each from unions and legal counsel associated with the nuclear industry; four (6%) from profes-sional societies associated with the nuclear industry; and 19 (26%) from private citizens. Of this latter group, six identified themselves with the utilities (e.g., trainees, operators, instructors, maintenance personnel), and two did not comment on the proposed rule (i.e., requested extensions to the comment period which were denied).

Overview of Comments

~ Comments received on the proposed " Fitness for Duty" rule from among 71 usab1'e responses involve 310 comments concerning 16 issues grouped under the following five headings:

1. Overall agreement or disagreement with the proposed rule citing util-

, ity awareness or non-awareness of and action to resolve the fitness for duty problem; AN 1 Enclosure "D" y ..-

2. Socioeconomic issues which might affect the utility adversely if the proposed " Fitness for Dut'" y Rule becomes law (legal, union, monetary cost, morale);

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3. Implementation issues which should or should not be resolved prior to issuance of the final rule (e.g. , definition of terms, use of breath testers

. and other diagnostic techniques, impairment standards);

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4. Recommended changes in the proposed rule (i.e. , inclusion of NRC per-

~sonriel', application to protected versus vital areas of the plant, guarantees of effectiveness, recordkeeping);

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5. Responses to NRC Commissioners' solicitation of specific comments (e.g., fitness for duty criteria, use of breath testers, scope of rule, appli-cation to NRC personnel, blood-alcohol level limits).

I Individual Comments And Their Resolution -

1

1. Overall Agreement / Disagreement With Proposed Rule, a

i a. Twenty-nine'(41%) of the respondents agree with the need for a " Fit-

! ness for Duty" rule either without comment or with recommendations for changes in the proposed rule. Included in this group are 11 of 13 private citizens not identified with the nuclear industry, and 14 of 36 utilities responding.

Recommendations are resolved under Paragraph 4 below. (Respondents; 1, 2, 3, 7, 8, 9, 10, 11, 13, 17, 21, 23, 24, 31, 32, 35, 36, 43, 44, 47, 49, 50, 58, 59,60,61,65,72,73)

, b. Forty-two (59%) of the respondents disagree with the need for a " Fit-

- ness for Duty" Rule. Included in this group are 22 of 36 utilities responding, eight of 10 utility suppliers responding, and six of seven private citizens identified with the nuclear industry. (Respondents: 4, 5, 6, 14, 15, 16, 18,

! 19, 20, 22, 25, 26, 27, 28, 29, 30, 33, 34, 37, 38, 39, 40, 41, 42, 45, 46, 48, 51, 52, 53,-54, 55, 56, 57, 62, 63, 64, 66, 67, 68, 69, 70) i -

A%C 2 Enclosure "D"

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(1) Thirty of these respondents comment that the rule is not needed since the utilities already have adequate fitness for duty programs in opera-tion. (Respondents: 4, 5, 6, 13, 16, 19, 22, 25, 26, 27, 28, 29, 30, 34, 38, 39, 42, 51, 54, 55, 56, 57, 62, 63, 64, 66,._67, 68, 69, 70)

(2) 'Eight of these respondents comment that the NRC acknowledges the industry's awareness of the fitness for duty problem and its response to it..in NUREG-0903. (Respondents: 16, 28, 29, 33, 37, 48, 64, 70)

(3) Thirteen of these respondents comment that the NRC has not estab-lished sufficient justification (need) for a fitness for duty rule, citing

, _ ,_ NUREG-0903, and suggesting that additional research into the issue of fitness for duty is required prior to a rulemaking action. (Respondents: 18, 20, 28, 30, 41, 48, 51, 53, 62, 64, 66, 68, 69)

(4) Fourteen of these respondents comment that a policy statement frcm the NRC to the utilities on fitness Wr duty would be sufficient. (Res-i pondents: 6, 18, 28, 33, 41, 42, 45, 49, 53, 56, 64, 67, 68, 70)

(5) Fourteen of these respondents comment that a fitness for duty rule, if issued, should be part of the proposed " Access Authorization" Rule (10 CFR S 73.56). (Respondents: 4, 5, 28, 33, 38, 39, 40, 41, 42, 45, 48, 52,63,69)

RESOLUTION: The NRC staff recognizes alcohol and drug abuse te be a social, medical and safety problem of epidemic proportions, affecting people in almost every industry and occupational group. For example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. indus-trial accidents involve alcohol, a *. an annual cost of $12-15 billion. Given the pervasiveness of the problem in our society, the NRC staff deems it unrealistic to assume that alcohol-drug abuse does not touch the nuclear indus-try, along with other emotional and psychological factors, rendering personnel unfit for duty. NRC sponsored research estimates that 16-18% of the nuclear industry workforce are potential alcohol abusers. For reactor operators estimates range from 22-25%. These estimates are derived from a Institute'of

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3 Enclosure "0"

Nuclear Power Operations (INPO) 1981 manpower survey,1 and the NIAAA Marden 3 formula for estimating potential alcohol abuse.2 Estimates for potential drug abuse among the nuclear industry workforce range from 12-207.. These estimates

are based on a 1979 survey of the U.S. adult population.3 Alcohol an'd drug abusers' job performance can be expected to be negatively affected due to the presence of, or withdrawal from, cheraicals in their blood l _ ; ytrear. For example, 4 ounces of alcohol in the blood stream of a 165 pound male requires approximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize. This is one reason other

.~

regulatory agencies (e.g. , U.S. Department of Transportation) mandate specific periods of abstinence (e.g., 4 or 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />) for interstate truck drivers,

, , , _ commercial airline pilots, etc. , prior to coming on duty. Drugs other than alcohol such as cocaine and hashish require as much as'24-72 hours to metabolize.

Additional information concerning the economic impact of alcohol and drug abuse on absenteef sm and job performance is presented on page 6 of this enclosure.

1

~

A recent Tennessee Valley Authority (T A) 1979 Report on its Alcohol and Drug Dependency Program states that the program served 350 employees during j

, that year (one out of every 143). TVA estimates that its ahnual cost due to {

alcohol abuse alone is approximately $18.5 million. An NRC Alcohol and Drug  !

Dependency Program official estimates that the Commission program serves about one of every 100 employees annually. The annual cost of alcohol abuse alone to the NRC based on the TVA cost formula, is estimated to be approximately

$1.85 million. When the TVA cost formula is applied to the referenced INP0 man-power and NIAAA Harden data, the estimated cost of alcohol abuse alone to the nuclear industry on an annual basis is approximately $175-200 million. As recently as mid-1981 approximately one-third of Edison E'lectric Institute (EEI) 1hnstitute of Nuclear Power Operations, A survey of Occupational Employment and Training in the Nuclear Power Industry. Manpower Studies Series, Report No.1, September 1981.

2Marden, P. G., A Procedure for Estimating the Potential Clientele of Alcohol Service Programs. Department of Health, Education and Welfare Publication No. (ADM)80-908, Washington, D.C., National Institute on Alcohol Abuse and Alcoholism, 1980.

T 3Fishburne, P. M., Abelson, H. I., & Cisin, I. H., National Survey on Drug Abuse: Main Findings 1979, Washington, D.C., Government Printing Office,

. 1980. '

h4%

4 Enclosure "D" 1 .___ _ _______ _ _ i

_ - .. .= . . _ . _. - . .

member companies operating nuclear stations had no programs to deal with this issue. More recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05, " Increasing Frequency of Drug-Related Incidents," reports a steadily increasing number of drug-related arrests and terminations being reported by

, the nuclear industry since 1978. The NRC staff has determined therefore, that a regulation with the authority of law is required for licensees to establish written procedures to provide reasonable assurance that all persor: with

. . . . . . , unescorted access to protected plant areas ,are not under the inf sace of alcohol, other drugs, or otherwise unfit for duty.

.c.-

NUREG-0903, " Survey of Industry and Government Programs to Combat Drug and

, , . , _ Alcohol Abuse,"1 is citeo by seven of the respondents as evidence that the l utilities are aware of the fitness for duty problem arid are taking appropriate and adequate remedial action. NUREG-0903, in fact, contains data on 10 of l 75 licensees, one of which admitted not having any written policy for handling potential fitness for duty offendors. The information contained in the NUREG .

on the remainder of the licensees surveyeTsuggests that no consistent policy for dealing with the day-to-day fitness for duty problem exists. Most utility programs reported on appear to be punitive rather than rehabilitative, and appear to focus primarily on screening new employees rather than the day-to-day behavior of the nuclear power station work force. .

NUREG-0903 is cited by 13 respondents, stating that the NRC has not estab-lished sufficient justification for a fitness for duty rule. The NRC staff recognizes that additional research is required to establish the exact nature of the problem within the nuclear industry and specific guidelines for address-ing the problem. The NRC currently has underway research investigating the problem and potential programmatic solutions. In the meantime, partial guid-ance to licensees for developing the required written procedures is provided in NUREG-0903, NUREG/CR-2075, " Standards for Psychological Assessment of Nuclear Facility Personnel," and NUREG/CR-2076, " Behavioral Reliability Program for the Nuclear Industry."1 Based on these and other government and industry fitness ,

I l

2 Copies of NUREG-0903, NUREG/CRs 2075 and 2076 are available from the NRC  !

Public Document Room, 1717 H Street NW., Washington, D.C. 20555; and the National Technical Information Service, Springfield, Virginia 22161.

kOb 5 Enclosure "0"

,, '~l I

for duty program guidelines written procedures responding to the " Fitness for Duty" rule, in order.to be determined adequate by the Commission, should include but not be limited to: (1) a statement of responsibilities of program coordi-nator, management, supervisors and employees who come in contact with persons

~

, _ with unescorted access to protected areas; (2) an observation procedure; (3) a

~

procedure (diagnosis,. referral, return to duty) for assisting individuals who

", meet criteria for alcohol-drug abuse or emotional instability; (4) an adminis-

, . . . ,trative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) education materials for all personnel and management to acquaint them with the licensee's fitness for duty  !

procedures. .

Alternatives to the " Fitness for Duty" rule cited by respondents include a policy statement and/or combining the rule with the draft proposed 10 CFR 73.56

" Access Authorization" rule. Consideration was given by the NRC staff to incor- s porating the provisions of the " Fitness for Duty" rule into the behavioral

~~

observation program portion of the proposed " Access Authorization" rule. It was decided not to do this because broadening the scope of the proposed " Access

, Authorization" rule would complicate and delay this "Fitnes's for Duty" rule. 2 The importance of establishing a regulation which addresses the specific issue i of fitness for duty necessitates proceeding independently with the present rule.

After some experience has been gained through the implementation of both the

" Fitness for Duty" rule and the draft proposed " Access Authorization" rule (e.g., 2-3 years), consideration will be given to combining them. Issuing a policy statement, as a alternative to a regulation, was considered by the NRC staff as part of the Regulatory Analysis. The procedural approach selected was a broad rule since it would provide considerable latitude to the licensee while at the same time providing a regulatory basis for enforcement.

~

In summary, the NRC staff has determined that sufficient evidence exists concerning fitness for duty to issue a broad regulation which: (1) has the full force and authority of law, (2) provides a basis for future regulatory actions and policy statements, and (3) allows each licensee to develop written procedures which take into consideration not only fairness to, and due process for its employees, but also any condition or circumstance unique to its facility. ,

k%6 6 Enclosure "D" 1 ~

[7590-01) arriving for duty or while on duty. Licensees will be expected to remove 1 NRC personnel not fit for duty from protected areas of the plant and notify an appropriate NRC office or official. The licensee I will not be expected to process NRC personnel through fitness for duty actions, punitive or nonpunitive, established for licensee personnel. It is anti I f--  :

cipated i. hat a similar process will be followed with regard,to licensee contractors' personnel unless other procedures are established by

, . , , licensees and contractors. The rule is broadly worded in keeping with

. c. - - - - - - the Commission's belief that each licensee should establish criteria for fitness for duty and implementation methods (e.g., breath testers, l psychological tests) taking into consideration circumstances unique to

, , _ _ _ its facility. The requirement that records of the written procedures be

• kept for the life of the plant has been eliminated since paragraph (1) of  !

the rule requires that the licensee's procedures be in written form.

Recommendation (4) involving vital rather than protected areas was nit included in the final rule. Selective application of the rule to only persons with unescorted accessTo vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally, therb is no way of guaranteeing that persons with unescorted access to protected are'as will

' 3 not penetrate vital areas through assistance or coercion of persons with l unescorted access to vital areas, especially if under the influence of  ;

alcohol or otner mind altering and mood changing drugs.

The word " temporary" modifying the term physical impairments in para- i graph (x)(1)(iii) of the proposed rule was eliminated as not being  ;

meaningful to the rule, r

, 't

) 4 REGULATORY ANALYSIS-

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-\

The Commission has prepared a regulatory analysis for this rule.

The analysis examines the costs and benefits of the rule as considered by the Commission. A copy of the regulatory analysis is available for i

inspection and copying for a fee at the NRC Public Document Room, 1717 H Street NW., Washington, D.C. 20555. -

i A46G 8 Enclosure "A" [

4 V

_ _ _ _ _~ _ _ _ _ __. .--

1

[7590-01)

PAPERWORK REDUCTION ACT STATEMENT I

The information collection requirements contained in this rule have been approved by the Office of Management and Budget; OMB Approval No:

3150-0011.

REGULATORY FLEXIBILITY ACT CERTIFICATION

,v---.. ,~ .

~ , , , _ ._.__. _ ___. . _

In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.

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

significant economic impact on a substantial number of small entities.

_ , , , _ . _ This final rule affects personnel with unescorted access to protected {

areas of facilities licensed under 10 CFR 50.21(b) or 50.22 for which an operating license has been granted. The companies that own these facil-ities do not fall within the scope of "small entities" set forth in the Regulatory Flexibility Act or the small business size standards set out in regulations issued by the Small ~BJsiness Administration in 13 CFR l Part 121. Licensee contractors, whose personnel are affected by imple-

, mentation of this rule, may fall within the scope of 'small entities. >

d These contractors will not, however, incur costs of establishing and I managing fitness for duty procedures required by the rule. The NRC assumes that potential costs associated with contractor personnel reha-bilitation or other administrative processing as a result of the rule, l will be covered by group health insurance and administrative staff I j already maintained by the contractor. Therefore, it is the determina-  !

tion of the NRC that implementation of this rule does not meet the thres- ,

i i

hold of a significant economic impact. No comments were received from small entities to the public announcement (47 FR 33980) of the proposed l rule, that it would adversely affect them. i

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. 7 LIST OF SUBJECTS IN 10 CFR PART 50 i P

Antitrust, Classified information, Fire prevention, Inter governmental  :

j relations, Nuclear power plants and reactors, Penalty, Radiation protec-l

. tion, Reactor siting criteria, Reporting requirements.

l*- A %Co  :

, 9 Enclosure "A" i

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0 [7590-01]

Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and Section 553 of Title 5 of the United States Code, the following amendment to 10 CFR Part 50 is published as a document subject to codification.

PART 50 - 00MESTIC LICENSING OF FRODUCTION AND UTILIZATION FACILIT!ES:

[, ,. 1. The authority citation 'or Part 50 continues to read as follows:

Authority: Secs. 103, 104, 161, 182,103, 186, 189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended'sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2333, 2134, 2201,'2232, 2233, 2236, 2239, 2282); secs. 201,

.__ 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846), unless otherwise noted. - -

~

Section 50.7 also' issued under~ Pt:b. L.95-601, sec.10, 92 Stat.

2951 (42 U.S.C. 5851): Section 50.78 also issued under sec.122, 68 Stat. 939 (42 U.C'C. 352). Sections 50.80-50.81 also issued under

~

sec. 184, 68 Stat. SS4, as amended (42 U.S.C. 2234). Sections 50.100-50~102 also issuad under sec. 186, 68 Stat. 955 (42 U.S.C. 2236).

For the purposes of sec. 223, 68 Stat. 958, as a5 ended (42 U.S.C.

2273), SS 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued unoGr sec. 1619, 68 Stat. 948, as amended (42 U.S.C. 2201(b));

SS 50.10(b) ano (c) and 50.54,are issued under sec. 1611, 68 Stat. 949, as amended (42 U. CC. 2201(f)); and SS 50.55(e), 50.59(b), 50.70, 50.71,

-50,72, and 50.78 are 1: sued u6 der sec. 161o, 68 Stat. 950, as amended (42 b.S.C. 2201(c)).~ .

2. A new paragraph (y) is added to S 50.2 to read as follows:

5 50.2 Definitions.

R R A A 2

-(y) " Protected ar.,a" means an area encompassed by physical barriers and to which access is contho11ed.

3. A new paragraph (x) is added to S 50.54 to read as follows:

$ 50.54 Conditions of licenses, m = -- * = =

7 (x) Each licensee with an operating license issued under

~

SS 50.21(b) or 50.22 of this Part shall establish and implement adequate written procedures' designed th provide reasonable assurance that all 1 P f&S 10 Enclosure "A"

[7590-01) persons with unescorted. access to protected areas, while in those pro-tected areas, are not --

(1) Under the influence of alcohol; '

, (2) Under the influence of any other drugs that could affect their faculties in any way contrary to safety; or (3) Otherwise unfit for duty because of mental or physical impair-

, ments that cottid affect their performance in any way contrary to safety.

- - -- .. . _ y_ . _ _ ,

s%

..__. . . Dated at this day of -

, 1983.

4

. For the Nuclear Regulatory Commission

- '~

..n..

Samuel J. Chilk Secretary of the Commission i

i e

],

i i -

1 i

l i

l

[ dOb i.

11 Enclosure "A" l

l i . .

. - - - - . - - - - , , - - , e, - . ,_,- - - . - . . . , .- m,,..,...a ,-.---.,,._...-n. - , - - - - - v.n- .,,.,,,-=, n.

f i

,m i

ENCLOSURE "B" "g

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1 -g-i r-_

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.. o REGULATORY ANALYSIS FOR FINAL RULE TO ASSURE PERSONNEL WITH UNESCORTED ACCESS TO PROTECTED AREAS

, , _ _ . ARE NOT UNDER THE INFLUENCE OF DRUGS OR ALCOHOL OR

~

OTHERWISE UNFIT FOR DUTY

% -- z .= - ..

1. PROPOSED ACTION 1.1 Description

~

This final rulemaking action requires each commercial and industrial facil-ity licensed under 10 CFR 50.21(b) or 10 CFR 50.22 to establish and implement procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not ,

under the influence of alcohol or other drugs or otherwise unfit for duty.

, 1. 2 Need for Proposed Action

• The NRC staff recognizes alcohol and drug abuse to be a social, medical and safety problem of epidemic proportions, affecting people in almost every industry and occupational group. For example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost of $12-15 billion. Given the pervasiveness of the problem in our society, the NRC staff deems it unrealistic to assume that alcohol and drug abuse does not touch the nuclear industry, along with other emotional and psychological factors, rendering personnel unfit for duty. NRC sponsored research estimates that 16-18% of the nuclear industry workforce are potential alcohol abusers. For reactor operators estimates range from 22-25%.

These estimates are derived from a Institute of Nuclear Power Operations (INPO) 1981 manpower survey,1 and the NIAAA Marden formula for estimating potential 11nstitute of Nuclear Power Operations, A survey of Occupational Employment and Training in the Nuclear Power Industry. Manpower Studies Series, Report

, No. 1, September 1981.

4, p

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1 Enclosure "B"

3 alcohol abuse.2 Estimates for potential drug abuse among the nuclear industry workforce range from 12-20%. ' These estimates'are based on a 1979 survey of the U.S. adult population.2 Alcohol and drug abusers' job performance can be expected to be negatively affected due to the presence of, or withdrawal from, chemicals in their blood 1 stream. For example, 4 ounces of alcohol in the blood stream of a 165 pound

. male requires approximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize. This is one reason other regulatory agencies (e.g. , U.S. Department of Transportation) mandate specific periods of abstinence (e.g. , 4 or 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />)'for interstate truck drivers,

~~

comriieFcial airline pilots, etc. , prior to coming on duty. Drugs other than alcohol such as cocaine and hashish require as much as 24-72, hours to metabolize.

Additional information concerning the economic impact of alcohol and drug abuse on absenteeism and job performance is presented on page 6 of this enclosure.

, A recent Tennessee Valley Authority (TVA) 1979 Report on its Alcohol and Drug Dependency Program states that the program served 350 employees during that year (one out of every 143). TVA estimates that its annual cost due to, alcohol abuse alone is approximately $18.5 million. An NRC Alcohol and Drug Dependency Program official estimates that the Commission program serves about one of every 100 employees annually. The annual cost of alcohol abuse alone to l the NRC, based on the TVA cost formula, is estimated to be approximately -

$1.85 million. When the TVA cost formula is applied to the referenced INP0 manpower and NIAAA Marden data, the estimated cost of alcohol abuse alone to the nuclear industry on an annual basis is approximately $175-200 million. As recently as mid-1981 approximately one-third of Edison Electric Institute (EEI) member companies operating nuclear stations had no programs to deal.with this issue. More recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05, " Increasing Frequency of Drug-Related Incidents," reports a steadily increasing number of drug-related arrests and terminations being reported by

, the nuclear. industry since 1978'. The reported incidents involve a range of licensee and contractor personnel, inc,luding personnel in operations and

'Marden, P.G. , A Procedure for Estimating the Potential Clientele of Alcohol Service Programs. Department of Health, Education and Welfare Publication No. (ADM)80-908, Washington, D.C., National Institute on Alcohol Abuse and Alcoholism, 1980. <

2Fishburne, P. M., Abelson, H. I., & Cisin, I. H., National Survey on Drug l Abuse: Main Findings 1979, Washington D.C. , Government Printing Office,1980.

AAu

l. 2 Enclosure "B" 1

security. The reported incicents are widespread geographically, and involve power reactor sites in sach o'f the five NRC regions.

Reported incidents have involved both onsite use or possession of alcohol and drugs, and personnel reporting to work under the influence of certain con-trolled substances. Marijuana was the most_ frequently reported controlled sub-stance involved in these events; however, incidents involving amphetamines,

. cocaine, hashish, and methaqualone have also been reported. '

Since operation of a nuclear facility by persons not fit for duty could

' degrade a licensee's ability to operate ths facility in a safe manner, develop-

~

-~~7ent' of a regulation concerning the determination of fitness for duty with respect to the consumption of alcoholic beverages, the use of other drugs which

~~

affect the faculties in a way contrary to safety, stress, and physical impair-cents, which could affect performance in any way contrary to safety, is neces-sary to protect the health and safety of the public.

1.3 Value/ Impact of Proposed Action 1.3.1 NRC Operations The value of this final rulemaking action to the NRC will be an enhanced capability to carry out its mission with respect to ensuring the health and safety of the public by requiring licensees to focus.on fitness for. duty of personnel authorized unescorted access to protected areas of their facilities.

NRC personnel come under the provisions of this rule since the licensee has ultimate responsibility for the behavior of all persons with unescorted access to its facility. .

The impact of this final rulemaking action on the NRC will be the time spent developing and enforcing the regulation.

pwe&<=

• nan- PMW !

1.3.2 Other Government Agencies This rule will not impact other government agencies, unless the govern-ment agency is a licensee, such as TVA.

1.3.3 Industry The value of this final rulemaking action to industry will be enhanced assurance of safety of facility operation. Implementation of this regulation will also benefit the licensee by reducing plant downtime or equipment damage

~

A%6

. 3 Enclosure "B"

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1

caused by errors committed by personnel unfit for duty. The National Institute on Alcohol Abuse and Alcoholi'sm (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. industrial accidents involve ,

alcohol, at an annual cost of $12-15 billion. With regard to fitness for duty programs, Wrich 1980,1 reports that U.S. industry benefits 10 dollars in decreased absenteeism and accidents, and increased productivity for every dollar it spends on fitness for duty. The impact on the industry will be the cost of developino :;.d implementing the written procedures. The NRC estimates that individuai licensee burden to develop writt'en procedures required by the rule

~

wilt ~be approximately 1,200 man-hours over a nine month period if no fitness for duty program currently exists at the licensee's facility. The nine month (1200 hour0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br />) implementation period resulted from discussions with fitness for duty program personnel in government and private industry. Using an hourly rate of $80, the cost per licensee to develop written procedures specified in .

this rule will be approximately $96,000 (1200 hours0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br />'x $80). Since the' rule is broadly stated giving the licensee considerable latitude in developing and managing his procedures, only a general annual cost statement can be given here. If the licensee appoints / contracts a full-time program manager, his annual cost will be approximately $50-60 thousand. Included in this estimate are manager salary, office space, procedures reviews, recordkeeping and proc-essing of clients. Costs associated with such things as rehabilitation, are expected to be the responsibility of the employee as part of his/her group health plan. This is the practice among non-military government agencies and private industry. The above cost estimates were derived from contacts with fitness for duty program personnel from private industry and non-mijitary government agencies. Included among these is the NRC Alcohol and Drug Dependency Program which serves headquarters and regional offices.

The final rule will allow licensees to develop the specifics of their

. wri.tten procedures taking into consideration fairness to and due process for their employees. A more specific regulation that attempted to do this in detail could be cumbersome, inflexible, and unnecessarily detailed. (See general guidelines for enforcing the rule in paragraph 2 of this Regulatory Analysis.)

lWrich, J.T., The Emplol_e Assistance Program; updated for the 1980's. City Center, Minnesota: Hazelden Publishing Co., 1980.

4 Enclosure "B" i

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e 1.3.4 Public The value of this final 'rulemaking action to the public will be greater assurance of safer operation of nuclear facilities. It will also have the potential for benefiting the public economically since positive cost-benefit ratios are reported from industries with similar fitness for duty programs.

1.3.5 Decision on Proposed Action

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Licensees should be required to establish and implement written procedures

~

designed to provide reasonable assurance 'tha't all persons with bnescorted

~~

"~

access t'o protected areas, while in those protected areas, are not under the influence of drugs or alcohol or otherwise unfit for duty.

2.

TECHNICAL APPROACH -

Various methods of establishing a program to provide reasonable assurance that personnel with unescorted access to the protected area of commercial and industrial facilities licensed under 10 CFR 50.21(b) or 10 CFR 50.22 were con-sidered. The procedures used by the Federal Aviation Administration (FAA) were

, reviewed for their applicability to nuclear facilities as were the recent changes proposed to the program. The current FAA regulations state that:

(a) No person may act as a crew member of a civil aircraft-(1) Within 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; or .

(3) While using any drug that affects his faculties in any way contrary to safety."

. Consideration was also given to incorporating *.he provisions of this final rule into the behaviorial observation program which is being developed as a part of the draft proposed changes to 10 CFR 73.56 (Access Authorization Rule).

This was not done because it is felt that broadening the scope of the draft proposed " Access Authorization" rule would complicate and delay this " Fitness for Duty" rule. The importance of establishing a regulation which addressed the specific issue of fitness for duty necessitated proceeding indepr.ndently with this " Fitness for Duty" rule. After some experience has been gained k h&&

5 Enclosure "B"

through the implementation of both this final " Fitness for Duty" rule and the

~ '

proposed " Access Authodzation" rule (e.g. , 2-3 years), consideration will be given to combining them.

Finally, the staff considered extending the rule to nuclear power plants

, , ._ under construction. It was determined by the staff that these plants should

~

'not be included in the rule since they present no potential adverse effect on the public health and safety due to a nuclear accident.

,[ A broad aiiministrative approach is chosen to accomplish this rulemaking action. Each licensee will be required to establish and implement procedures

~

which provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence

_ of alcohol or other drugs or otherwise unfit for duty. The category of per-sonnel was restricted to those personnel with unescorted ' access rather than anyone with access to a protected area because an individual with unescorted access may have the opportunity to perform an unobserved action which could effect the public health and safety. It includes all persons, including NRC personnel, who have been authorized unesc~o~rted access to protected areas.

The detailed method of implementing this requirement is left to the licensee, rather than by issuing a very detailed and cumbersome regulation, in order to allow licensees to focus on the problem and provide solutions which will take into consideration the rights of their employees and any circum-stances unique to their facility. However, guidance to licensees for develop-ing the required written procedures is provided in NUREG-0903, " Survey of Indus-try and Government Programs to Combat Drug and Alcohol Abuse," NUREG/CR-2075,

" Standards for Psychological Assessment of Nuclear Facility Personnel," and NUREG/CR-2076, " Behavioral Reliability Program for the Nuclear Industry."1 Bas ~ed on these and other government and industry fitness for duty program guidelines, written procedures responding to the " Fitness for Duty" rule, in order to be determined adequate by the Commission, will be expected to include

but not be limited to

(1) a statement of responsibilities for program coordi-nator, managers, supervisors and employees who come in contact with persons with unescorted access to protected areas; (2) an observation procedure; 2 Copies of NUREG-0903, NUREG/CRs 2075 and 2076 are available from the NRC Public Document Room, 1717 H Street NW., Washington, D.C. 20555; and the National Technical Information Service, Springfield, Virginia 22161.

A466

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6 Enclosure "B" t  :

(3) a procedure (diagnosis, referral, return to duty) for assisting individuals

_ who meet criteria for alcohol-drug abuse or emotional instability; (4) an admin-istrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) education materials for plant

, , personnel and management to acquaint them with the licensee's fitness for duty procedures. The above guidelines are intended as interim criteria about which licensee and public comment will be sought. Comments on these guidelines received

,;[ within 60 days of publication of the final rule will be evaluated by the NRC staff. Changes, if any, in these guidelines as the result of public comment, will be documented. Licensees and license applicants will be informed of changes in the guidelines by letter. Copies of the revised guidelines will also be made

,, _ availuble for review in the Commission's Public Document Room at 1717 H Street NW., Washington, D.C. 20555. ~

3. PROCEDURAL APPROACH 3.1 Procedural Alternatives

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, 3.1.1 Specific Regulation--issue a regulation which requires personnel '

with unescorted access to protected areas to be fit for duty as specifically ,

defined in the regulation. Such a regulation would have to specify, among other things, conditions of fitness for duty (e.g. , blood-alcohol level), use of other controlled /non-controlled drugs, and revocation, suspension or modifi-cation of an operating license.

3.1.2 Broad Regulation--issue a regulation which requires personnel with unescorted access to protected areas to be fit for duty in accordance with general guidelines such as those stated in pages 5 and 6 of this enclosure.

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3.1.3 Policy Statement--issue a Commission policy statement which deli-neates Commission policy regarding fitness for duty of personnel with unescorted access to protected areas.

3.1.4 No' Change in. Existing Regulations--maintain status quo. The NRC does not have regulations whfch specifically address use of alcohol and other

l. h 4M

l. 7 Enclosure "B" I :- -

drugs or the broader issue of fitness for duty of persons with unescorted access to protected areas at' nuclear power stations.

3.2 Value/ Impact of Procedural Alternatives The value to the Commission of alternative (1), a specific regulation, is

~

that it would have a regulatory basis for enforcement. The impaci. on the NRC

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of alternative (1) is that a regulation which attempted to fully define all lnst'anceswhenanindividualshouldbe'consideredunfitforduty,whileprotect-

~

ing th~e'~ rights of the individual involved, would necessarily be cumbersome and less than an optimal approach for any particular licensee facility.

The-value to the Commission of alternative (2), a broad regulation, is it would have a regulatory basis for enforcement, it would provide a basis for

, future regulatory guides, and would allow each licensee to develop procedures which take into consideration not only fairness to 'and due process for its employees but also any conditions or circumstances unique to its facility.

The impact on the Commission of, alternative (2) is that it may be harder to enforce than a specific regulation 'since it would not require industry-wide standardization of their fitness-for-duty procedures. .

The value to the Commission of alternative (3), a policy statement, is it would provide the greatest degree of flexibility for implementation since con-formance to the established policy by the licensees would be voluntary. The impact on the Commission of alternative (3) is that it would not provide a regu-latory basis for enforcement.

The value to the Commission of alternative (4), no change in e,xisting regulations, is it would eliminate the requirement for allocating two man-days per year per plant among NRC licensing and inspector personnel. The impact on the Commission of alternative (4) is that the Commission could be perceived as

. . indifferent to alcohol and drug abuse at nuclear power stations. At present,

~

the Commission has no regulations which specifically address alcohol and drugs, or the broader issue of fitness for duty.

3.3 Decision on Procedural Approach The final action should be accomplished by publishing a broad regulation which would require licensees to provide reasonable assurance that all persons bN .

. 8 ' Enclosure "B"

_ _ , .  %--- - yr

i with unestorted access to protected areas, while in those protected areas, are not under the influence ~of al'cohol or other drugs or otherwise unfit for duty.

Commission enforcement of the broadly worded rule should be undertaken using the general guidelines described in paragraph 2 of this Regulatory Analysis.

4 STATUTORY CONSIDERATIONS

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4.1 NRC T,egulatory Authority

.=---__. ,w _ - .

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~~~A~uthority for this final action is derived from Section 103 of the Atomic Energy Act of 1954, and from Section 201 of the Energy Reorganization Act of 1974.

4.2 Need for NEPA Statement An environmental impact statement is not required since, under 10 CFR 51.5(d)(3), this final action is not a major action that may significantly affect the quality of the human environment.

5. RELATIONSHIP TO OTHER EXISTING OR PROPOSED REGULATIONS OR POLICIES The restrictions provided by this final action are not addressed by exist-ing regulations or policies, nor are they addressed by other proposed regula-tions or policies. The relationship between this final rule and the draft proposed change to 10 CFR 73.56 (Access Authorization Rule) under development has been carefully considered. The decision has been made to proceed separately with both rulemaking actions and to reconsider combining them after experience has been gained from their implementation. Additionally, the staff considered

. extending .the rule to nuclear power plants under construction. It was deter-mined by the staff that these plants should not be included in the rule since l they present no potential adverse effect on the public health and safety due to a nuclear accident.

l

. .. . A%G

. 9 ~ Enclosure "B"

J

6.

SUMMARY

AND CONCLUSIONS i

i-An amendment to 10 CFR 50.2 and 50.54 should be prepared to require i

licensees with operating licenses. issued under S 50.21(b) or S 50.22 to estab-

,, lish and implement adequate written procedu[es designed to provide reasonable assurance that'all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol, other drugs, or

,-, - - .__ w otherwise unfit for duty because of mental or physical impairments.

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ENCLOSURE "C" e

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. ANALYSISWITHRESPECTTOPERIODICSYSTEMATICREVIEEOFREGULATONS  !

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' (THI Action Plan Task IV.G.2) 1 i ' ll

SUBJECT:

Requirement;for licensees to provide reasonable assurance that personnel with unescorted access to protected areas of commercial and industrial facilities licensed under 10'CFR S 50.21(b) or 10 CFR I

S.50.22 are' fit for duty . l 5

• i e

, Criteria for periodic and systematic .

review of regulations NRC compliance '

1. The proposed regulation is needed. The need for the proposed rule is* discussed in.the i Regulatory Analysis prepared in connection with the i

rulemaking (Enclosure B). l ,

. 2. The direct and indirect effects of the The direct and indirect effects of this rulemaking regulation have been adequately considered. action were considered in the Regulatory Analysis 4 prepared in connection with the final rule.

(Enclosure B)

3. Alternative approaches have been considered and Alternative methods for providing restrictions on the l the least burdensome of the acceptable consumption of alcoholic beverages and the use of' j alternatives has been chosen, drugs by nuclear facility personnel,have been con-sidered in the Regulatory Analysis, and the least

burdensome of the acceptable alternatives has been

'l chosen.

4. Public comments have been considered and an The proposed rule was issued for public comment.

1 adequate response has been prepared. Comments received were considered in developing the i final rule.

4

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j 5. The regulation is written in plain English and The final rule has been reviewed and edited for the

,, is understandable to those who must comply specific purpose of ensuring that the regulation is  ;

j with it. clear and can be understood by persons who are 9

required to comply with it. .'

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I I 1 Enclosure "C" I

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SUBJECT:

Requirement for licensees to provide reasonable assurance that personne'l with. unescorted access to ,

protected areas of commercial and industrial facilities licensed under 10 CFR S 50.21(b) or 10 CFR ,

S 50.22 are fit for duty t' Criteria for periodic and systematic ,

review of regulations NRC compliance i

6. An estimate has been made of the new reporting The final rule will result in an additional report-burdens or recordkeeping requirements necessary ing burden on the licensee and the Commission.

. for compliance with the regulation. These recordkeeping requirements have been submitted '

to the Office of Management and Budget for approval as required by the Paperwork Reduction Act of 1980,.

7. The name, address, and telephone number of a The Federal Register notice promulgating the final knowledgeable agency official is included in rule contains the name, address, and telephone ,

the publication. number of a knowledgeable agency official.

8. A plan for evaluating the regulation after its The rule will be reviewed in the second cycle of issuance has been developed. the Commission's periodic and systematic review process (1986-1991).

l ,

1 4

1 b .

D -

D 2 Enclosure "C"

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2. Socioeconomic Impact of Rule

a. Twenty respondents comment that developing and implementing written procedures as called for.in the rule would cause legal and union related liabil-

.. ities to the licensee. (Respondents: 5, 15, 17, 19, 22, 23, 25, 26, 28, 29, 33, 34, 42, 44,' 58, 59, 64, 68, 70, 72)

,; . RESOLUTION: The NRC staff recognizes that written procedures for imple-menting the " Fitness for Duty" rule will raise sundry personal rights and union related issues. It is presumed, however, that appropriate reviews and coordination of written procedures will be undertaken by the utility with its legal counsel and union representatives prior to submitting the procedures to the NRC. Legal and/or union issues related to fitness' for duty programs are being dealt with successfully in other industries (e.g., civilian aviation, aerospace, electronics).

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b. Eleven respondents comment that developing and implementing written procedures called for in the " Fitness for Duty" Rule will cause substantial dollar costs to the licensee. (Respondents: 16, 23, 25, 33, 44, 46, 48, 53, 55, 58, 64)

RESOLUTION: The NRC staff recognizes that developing written procedures in response to the rule will involve dollar costs. The NRC estimates that individual licensee burden to develop written procedures required by the rule will be approximately 1200 man-hours over a nine month period if no fitness for duty program currently exists at the licensee's facility. Using an hourly rate of $80, the cost per licensee to develop written procedures specified in this rule will be approximately $96,000 (1200 hours0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br /> x $80). Since the rule is broadly stated giving the licensee considerable latitude in developing and ,

managing his procedures, only a general annual cost statement can be given here. If the licensee appoints / contracts a full-time program manager, his annual cost will be approximately $50-60 thousand. Included in this estimate are manager salary, office space, procedures reviews, recordkeeping and proc-essing of clients. Costs associated with such things as rehabilitation, are expected to be the responsibility of the employee as part of his/her group health plan. This is the practice among non military government agencies and A %6 7 Enclosure "D" b -

private industry. The above cost estimates were derived from contacts with fitness for duty program persennel from private industry and non-military government agencies. Included among these is the NRC Alcohol and Drug Depend-ency Program which serves headquarters and regional offices. However, the NRC

, staff is also aware that several of the utilities currently have some manner of program in place (reference NUREG-0903), therefore, minimizing their costs in shaping current programs to meet " Fitness for Duty" rule requirements.

_- mSecondly, employee observation / assistance programs in other industries claim,

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almost unanimously, to save dollar costs in' the long-term. While utilities

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suc~h ais TVA which claims that alcohol abuse alone costs it approximately

$18.5 million annually -- fitness for duty programs of the type envisioned by

, , , _ the " Fitness for Duty" rule are expected to save dollar costs, through quicker identification of employees not fit for duty, and through assisting these indi-viduals, in whom considerable resources have been invested, so that they might return to high levels of productivity. Absenteeism due to alcohol-drugs costs U.S. industry an average of $300 annually for every worker nationwide. Alcohol-drug abusers lose an additional 25% of their productive time when on the job at an average annual cost to U.S. industry of approximately $2,900 per alcohol- .

drug abuser. The total cost to U.S. industry annually is between $12 and 15 billion. With regard to fitness for duty programs, Wrich 1980,1 reports that U.S. industry benefits 10 dollars in decreased absenteeism and accidents, and increased productivity for every dollar it spends on fitness for duty.

c. Fifteen respondents comment that tie " Fitness for Outy" rule will have a deleterious effect on nuclear power plant employee morale. (Respondents:

14, 18, 26, 27, 28, 30, 38, 42, 46, 48, 51, 55, 61, 64, 73)

RESOLUTION: The NRC staff has found no documented evidence from experiences with fitness for' duty programs in other industries (e.g. , civilian aviation.

~

aerospace, electronics) which indicate that employee morale has been affected negatively. On the contrary, such programs tend to enhance morale since the parent company is perceived as being interested and supportive of employees in solving their personal problems.

2Wrich, J.T. , The Employee Assistance Program; updated for the 1980's. City -

! Center, Minnesota: Hazelden Publishing Co., 1980.

L. 0 A4a Enclosure "D" 8

.a

3. " Fitness for Duty" Rule Implementation Factors

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a. Nineteen respondents comment that' criteria (operational definitions) are needed for terms such a_s " fitness for duty". (Respondents: 6, 11, 14, 17,28,29,34,36,42,44,45,47,52,53,'54,55,60,62,69)

Three respondents comment that such terms as " fitness for duty" should be defined by the utility as part of its written procedure. (Respondents: 43,

~ ~~"- lbB,55) ~

b. Twenty-seven respondents comment that instruments such as breath testers should not be used to monitor employee fitness for duty. (Respondents:

6, 19, 22, 23, 25, 26, 29, 30, 32, 33, 34, 39, 44, 46, 47, 48, 50, 51, 55, 57, 58, 60, 61, 62, 70, 72, 73)

Four respondents comment that instruments such as breath testers should be used to monitor employee fitness for duty. (Respondents: 2, 7, 11, 45)

c. Four respondents comment that specific blood alcohol limits should not be established as part of the " Fitness for Duty" Rule. (Respondents: 47, 48,60,64)

One respondent (#45) comments that a specific blood alcohol level limit should be established but does not suggest a level. .

RESOLUTION: The NRC staff has determined that, for the time being, specific criteria for determining fitness for duty and methods (e.g., breath testers) for. assessing those specific criteria should be left to the individual licensee.

However, guidance to licensees for developing the required written procedures is provided in NUREG-0903, " Survey of Industry and Government Programs to Combat Drug and Alcohol Abuse," NUREG/CR-2075, " Standards for Psychological Assessment of Nuclear Facility Personnel," and NUREG/CR-2076, " Behavioral Reliability Program for the' Nuclear Industry." Based on these and other government and industry fitness for duty program guidelines, written procedures responding to

. A4c6 9 Enclosure "D"

the " Fitness for Duty" rule, in order to be determined adequate by the Commis-sion, should include'but not be limited to: (1) a statement of responsibil-ities of program coordinator, managers, supervisors and employees who come in contact with persons with une!_ ted access to protected areas; (2) an observa-tionprocedure;(3)aprocedure(diagnosis,$ referral,returntoduty)for I assisting individuals who meet criteria for alcohol-drug abuse or emotional instability; (4) an administrative procedure for processing individuals who

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refuse assistance and/or who wish to exercise their appeal rights; and

" 15) education materials ' for plant personriel and management to acquaint them

~ ~~7ith'ihe' licensee's fitness for duty procedures. If NRC alcohol-drug research, in progress, results in more definitive criteria for diagnosing fitness for duty, additional regulatory guidelines will be prepared.

4. Recommended Changes in " Fitness for Duty" Rule Content The " Fitness for Duty" rule published in the Federal Register for public comment on August 5,1982 states: "Each licensee with an operating license issued under 10 CFR 50.21(b) or 50.22 shall establish, document and implement

, adequate written procedures designed to ensure that, while on duty, its and its contractor's personnel with unescorted access to protected areas are not (1) under the influence of alcohol, (2) using any drugs that affect their faculties in any way contrary to safety, or (3) otherwise unfit for duty because 'of mental or temporary physical impairments that could affect their performance in any way contrary to safety. Each licensee shall maintain the written records of these procedures for the life of the plant." .

a. Twenty-nine respondents comment that the word ensure denotes guarantee and that no known program or technique is capable of guaranteeing 100% effective-ness in detecting and diagnosing unfitness for duty. These respondents recom-mend that the word ensure be replaced by the words provide reasonable assurance.

(Respondents: 13, 14, 21, 28, 29, 31, 33, 36, 37, 38, 40, 41, 42, 47, 48, 49, 50, 53, 54, 56, 58, 59, 60, 61, 64, 65, 66, 67, 69)

b. Thirty-three respondents comment that the rule, currently directed i

at the licensee's and its contractors' personnel, should be extended to all j persons with unescorted access, including NRC personnel. (Respondents: 5 A 466 10 Enclosure "D" l

l h

]

6, 13, 14, 21, 25, 26, 27, 29, 31, 33, 35, 36, 40, 42, 44, 45, 46, 47, 48, 50, 51, 53, 57, 58, 59, 60, 61, 63, 64, 65, 66, 73)

Two respondents comment that NRC personnel should not be included. These

, . latter respondents state that the NRC should be made responsible for its own

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employees; that' the utilities should not be put in the position of policing regulators. (Respondents: 41, 67)

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c. Ten respondents comment that the rule should pertain only to vital areas of the plant rather than protected areas as now stated, citing the former only as being crucial to the public safety. (Respondents: 13, 21, 22,

, _ , _ 28, 31, 33, 35, 42, 55, 64)

Five respondents comment that the current wording of the rule pertaining to protected areas should be retained, citing that access to protected areas includes access to vital areas. (Respondents: 45, 47, 48, 59, 60)

d. Thirteen respondents comment that written records should not be main-

[

tained for the life of the plant, but they should be kept for a reasonable t

period (e.g., two years) after they are promulgated. (Respondents: 6, 31, 33, '

41, 47, 48, 50, 53, 56, 60, 64, 65, 66)

e. Five respondents comment that the rule should be stated broadly to allow licensees to establish fitness for duty programs (written procedures) consistent with their own needs and sensitive to unique circumstances as may exist at their own facility. (Respondents: 47, 48, 59, 60, 65)

One respondent (#64) comments that the rule should be more specific con-cerning conditions of fitness and processing of persons determined to be unfit for duty.

RESOLUTION: The NRC staff ' concurs in Comments a, b and e involving "rea-sonable assurance," application of the rule to "all personnel" and " broadly stated'.' rule respectively. These changes have been incorporated into the revised rule (Enclosure "A"). The word " ensure" was changed to the' term " pro-vide reasonable assurance" since no written procedure can be expected to be l f All

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11 Enclosure "D" w_ _ . _ _ . J -. .- - - _ - . - - - - - --- - -- -

100% effective all the time. The rule was extended to all persons, including NRC personnel, since the licensee is ultimately responsible for the behavior of all persons with unescorted access to protected areas of its facility, and the NRC has no way of guaranteeing that its personnel resident at nuclear power plants, or visiting those plants, will always be fit for duty. Licensees would be expected to' limit their implementation of the rule with NRC personnel to

, , those procedures they exercise for their own employees arriving for duty or

. ,yhile on duty. Licensees would be expected to remove NRC personnel not fit

.n for duty from protected areas of the plant and notify an appropriate NRC office or official. The licensee would not be expected to process NRC personnel through fitness for duty actions, punitive or nonpunitive, established for

_ , ,,_ licensee personnel. The rule is broadly worded in keeping with' the Commission's belief that each licensee should establish criteria for fitness for duty and implementation methods (e.g. breath testers, psychological tests) taking into consideration circumstances unique to its facility.

The NRC staff takes exception to Coriim'e'nt c which involves application of the rule to vital areas of the plant rather than the broader protected areas.

The NRC staff maintains, as do five of the respondents, that the " Fitness for i Duty" rule should apply to unescorted access to protected' areas. Selective application of the rule to only persons with unescorted access to vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas >

will not penetrate vital areas through assistance or coercion of persons with '

unescorted access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs. Therefore, the word protected '

is retained in the revised rule (Enclosure "A").

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Comment d involves maintenance for the life of the plant of records of written procedures developed to respond to the " Fitness for Duty" rule. The requirement that records of the written procedures be kept for the life of the plant has been eliminated since paragraph (1) of the rule requires that the licensee's procedures be in written form.

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b 4LS 12 Enclosure "0"

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h

f.

Presented below is the proposed rule submitted for public comment on August 5, 1982.

Superimposed on the proposed rule are changes resulting from resolution of public comments. Changes were also made in the proposed rule, from NRC staff deliberations, as follows. The word " document" in paragraph

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(x)(1) was deleted as being redundant with the word " written." The word "other" 1- inparagraph(x)(1)(ii)wasaddedtorecognizethefactthatalcoholisalsoa drug. The word "could" in paragraph (x)(1)(ii) was added to recognize the fact that a wide variety of substances (i.e. , controlled, noncontrolled, illegal) may

<or may not render particular individuals-fit or no' t fit for duty. Additionally,

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the-word " temporary" in paragraph (x)(1)'(iii) was eliminated'as not being meaningful. Mental and physical impairments, whether temporary or permanent, may or may not preclude a person for being fit for duty.

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(x)(1) Each licensee with an operating license issued under 10 CFR S 50.21(b) or S 50.22 shall establish [ document] and implement adequate written procedures designed to [ensare-that- while-on-duty--the-licensee's and-its-cen-i tracters personnei] provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not:

(i) Under the influence of alcohol; (ii) [Using] Under the influence of any other drugs that could affect their faculties in any way contrary to safety; or (iii) Otherwise unfit for duty because of mental or [ temporary] physical impairments that could affect their performance in any way contrary to safety.

(2) [The written records-of-these procedures-for-the-iife-of-the plant-]

5. Specific Responses to Commissioners' Questions The following questions were posed specifically by the Commissioners in soliciting public comment on the " Fitness for Duty" rule. Although each of these questions have been dealt with earlier in this Enclosure, they are restated here for Commissioner review.

7 A 466 13 Enclosure "0"

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a. Should the Commission establish specific fitness criteria? Nineteen respondents comment that the Commission should establish specific fitness crite-ria. Three respondents comment that such criteria should be established by each licensee as part of.its written procedures. The NRC staff concurs in

_ _ this latter position since it believes that a broadly worded rule is in the best interests'of government and industry.

.. b. Should specific metheds be established by the NRC for implementation

. . - of the "Fitress for Duty" rule, inchding the use of breath tests, background investigations, psychological tests, behavioral observation programs, employee awareness programs, employee assistance programs, and other possible implementa-

_ , , _ tion measures? Twenty-seven respondents comment specifically that breath tests should not be used. Regarding observation and assistance programs,-almost all

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36 utilities responding to the rule notice claim to have some form of observa-tion and/or assistance program in operation. Other measures (e.g. , psycho-logical tests, other implementation measures) are not commented on specifically within the context of the " Fitness for D Ky" rule.

The NRC staff currently believes that decisions on breath tests, psycho-Icgical tests and other measures should be left up to the licensees. However, guidance to licensees for developing the required written procedures is pro-vided in NUREG-0903, " Survey of Industry and Government Program to Combat Drug and Alcohol Abuse," NUREG/CR-2075, " Standards for Psychological Assessment of Nuclear Facility Personnel," and HUREG/CR-2076, " Behavioral Reliability Program for the Nuclear Industry." Based on these and other government and. industry ,

fitness for duty program guidelines, written procedures responding to the " Fit-ness for Duty" rule, in order to be determined adequate by the Commission, should include but not be limited to: (1) a statenent of responsibilities of program coor,dinator, managers, supervisors and employees.who come in contact

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with persons With unescorted access to protected areas; (2) an observation proce-dure; (3) a procedure (diagnosis, referral, return to duty) for assisting indi-viduals who meet criteria for alcohol-drug abuse or emotional instability; (4) an administrative procedure for processirg individuals who refuse assistance and/or who wish' to exercise their appeal rights; and (5) education materials for plant personnel and management to acquaint them with the licensee's fitness for duty procedures. -

14 Enclosure "D"

\____-______-_-_*-_-----__------.---

c. Should the " Fitness for Duty" rule be limited in scope to personnel with unescorted access to vital as opposed to protected areas as defined in 10 CFR S 73.2? Ten respondents comment that the rule should be restricted to vital areas; five comment that it should include protected areas. The NRC

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staff believes that the r'ul'e should include all protected areas since almost

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all personnel with unescorted access to protected areas also have unescorted access to vital areas ~. .

' ' ' ' ~ ' ' ' '

d. Should the " Fitness for Duty" rule apply to NRC personnel? Thirty-

. - --- three respondents comment that it should; two comte'nt that it should not. The revised rule (Enclosure "A"and annotated in paragraph 4.f of this enclosure)

~ ~ ~ ~

has been expanded to include all persons, including NRC Personnel, with unescorted access to protected areas of the plant. The primary reason for

. this change is the utility's ultimate responsibility for the behavior of all persons with unescorted access to its plant,

e. Should there be specific blood alcohol level limits? Three respond-ents comment that thcre should not be specific blood alcohol levels estab-lished; one respondent comments that there should be levels, established (no specific level recommended). The NRC staff currently believes that specifica-tion of criteria for unfitness for duty (e.g., blood alcohol level) should be left to the discretion of the licensee.

A%C

. 15 -

Enclosure "0"

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f RESPONDENTS TO FEDERAL REGISTER NOTICE ON " FITNESS FOR DUTY" RULE Respondent number Respondent identi,fier

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1 Private citizen

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2 Private citizen

~~~

3 Private citizen 4 Numanco, Inc.

5 International Brotherhood of Electrical. Workers -

^

6 Nuclear Consulting services '

t 7 Private citizen '

8 Private citizen '

9 -

Private citizen 10 Private citizen 11 Private citizen

17. Private citizen 13 Sacramento Municipal Utility District 14 Private citizen 15 Private citizen 16 Private citizen ,

17 Oil, Chemical and Atomic Poker Workers International 18 Private citizen 19 Private citizen

. 20 Private citizen 21 Niagara Mohawk Power Corporation 22 Washington Public Power Supply Company 23 Private citizen 4

24 Private citizen 25 Private citizen

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1 Attachment to' Enclosure "D"

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% - _ __ . . _ - . _ -. - _ - - - - ~ - - ----~-----

. ._u Respondent number Respondent identifier 26 American Nuclear Society

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Standards Committee 27 Baltimore Gas and Electric

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28 Arizona Public Service Company 29 Northeast Utilities Service

', Company

--..:_,__ 30 Duke Power Company -

' , _ _ _ _ , 31 Wisconsin Public Service Corporation 32 Bensinger, Dupont & Associates 33 Florida Power and Light Company ,

34 Boston Edison Company 35 Detroit Edison 36 Illinois Power Company 37 Kansas Gas and Electric Company 38 Portland General Electric Company 39 BehaviordynePsychological Corporation 40 KMC, Incorporated 41 Edison Electric Institute 42 Consolidated Edison Company of New York, Inc.

43 Washington Legal Foundation.

44 Consumer Power Company 45 Stone & Webster Engineering Corporation 46 Houston Light and Power Company

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47 Mississippi Power and Light Company 48 Oebevoise & Liberman 49 Commonwealth Edison 50 Rochester Gas and Electric Corporation 51 Pacific Cas and Electric Company

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- 2 Attachment to Enclosure "0" .

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Respondent nudber Respondent identifier 52 Nuclear Fuel Services, Inc.

53 Florida Power Corporation

. . 54 Carolina Pcwer & Light Company 55 Bechtel Power Corporation.

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~56 Public Service Company of r-... .-

Colorado

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57 Pen'nsylvania Power & Light

. . - - Company 58 Yankee Atomic Electric Company 59 General Public Utilities Nuclear Corporation 60 Texas Utilities Generating Company 61 Cleveland Electric Illuminating Company 62 Gulf States Utilities Company 63 Virginia Electric and Power Company 64 Public Service Indi*ana 65 Northern States Power Company 66 South Carolina Electric & Gas Company 67 Georgia Power Company 68 Professional Reactor Operator Society 69 Long Island Lighting Company 70 Atomic Industrial Forum, Inc.

71 Private citizen 72 Theophilus, Inc.

73 Union Electric Company A%c 3 Attachment to Enclosure "0"

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ENCLOSURE "E"

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33330 Tsdercl R2 gist:r / Vol. 47. Ns.151 / Thursday. August 5,1982 / Prrposed Rules revision of the spec!ied percentages Regulatory Commission. Washington. access to the protected area of the pursuant to j 1030.7(b)(5); D C. 20555. Telephone (301) 443-5942. lictnSed facility are not unfit for ddty. e J -

' 'suppuutkTARY WFORM ATiO8C na At this llme. estabIlshment of specinC tra om asem en.m4  ! -

Commission has found that the number criteria to be used to determine Gtnesa suma coc< sne sus ~

• - .. of reported drug-related incidents in for duty and specific methods of which11cznace or contractor employees implementation of this requirement have

- were arrested or terminated has beenleft to the licensee.ne

• Nt[ CLEAR REGtJLATOW .

Increased substantially over the past

• Commission solicito publis comment on '

~ C3 MISSION three years.In ts7s there was ~one such (1) the establishment of specific fitness reported incldent. in 1980 there were crHula (such as the Federal Adation 10 CA Part 50 c live, and in 1981 there were tw elve. Administraum,s regulaum regarding nese incidents have involved both - crew rncmben of civil aircraft in 14 Cm

'P:rsonnelWith' Unescorted Access to ensite use orpossession of drugs and 91.11(a)) for nelear plant pusmel(2),

Prctected Areas; Fitness for Duty penannel reporting to work under the specific methods ofimplementation of

[ "' Aa us a b e most quent y 8 I *

• d AcTiope Proposed inte.-

- ' reported controlled substance involved inusugaum psycholog.ical tests, In these incidents: bowever, incidents behavioral observatien programs, supuany: ne Commission is' proposing invching amphetamines, cocaine, *

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to emend its regulations to require ,

, bashish. phen c!!dme, and .

,{,l [,},,,,c,' p7,g ,,",',' a nd commercial and industrial fa cilitie s . , ' methequaloce ave also been reported. other possible implementation licensed under to CFR 50m (primarily, * * ' As a result of these incidents. the NRC measures; and (3)11miting the scope of '

eudear power plant licensees) to * . OfSce ofInspection and Enforcement the rule to personnel with unescorted establish and implement controla (IE)has established a Drug Abuse Task access to vital areas (generally, e

, designed to assure that personnel with Force to develop a generic approach to (y physical barriers and to which accessrot unescorted access to protected areas are the problem of possible drug (induding not under the in!Iuence of drugs or allohol) abuse by licensee or contractor is controlled, while a vital area is any alcohol or otherwise unht for duty, ne personnel. IE is developing a NUREG area that contains vital equipreent, proposed rue was developed because of report which describes current practice ness terms are speci5cally defined in l e cencern that certain ersonnel could regarding the abuse of drugs and alcohol to Cm 73.2)*

i become unfit for duty fue to the effects ^ e Commlsste wants to akw each

" by other regulatory organizations and by cf substances such as elechol or drugs Lndustry.ne NUREC report, entitled emee eie p pmcebel M

• ~~

and. thereby, could perform actions that " Survey ofIndustry and Covernment . ta e em era n to % W ess -

' m!;ht adverselyimpact the health and Programs to Combat Drug and Alcohol to and due pmceu for b emphees, safety of the public.ne result of the Abuse," should rove useful to licenseen but also any condit!cas or proposed rde would be the 4 when they devefep the fitness for dut c amstances uniqu t us fa@, ,

implementation of fitness for duty that would be, required by tfe t *

prog ams industry wide that would be pregrams .g [,*,'Ifn p e drsigned to prodde greater assurance of, proposed rule. ,

ne proposed rule _would apply to the . comment on the level of specificity that safer and more reliable ope ation of ticense,5. employees and contracto? should be included in the proposed rule. '

l . nudear facili'Jes. personnel with unescorted access to Commissioner Cilinsky has te nested cAtts: Comment period expires October prctected areas of facilities issued comments on whether the rule should -

4.1982. Comments received after this operating licenses under to CFR 5021(b) also apply toNRC personnel and on da te will be considered if it is practical whether there should be speciSc blood or 1O CTR 50.22. His ca tegory of alcohollevellimits,

• to do so, but assurance of consideration, persennel was chosen because any

'cannot be given except af to commenta person with unescorted access to a ' Paperwork Reduction Act recdved on or before this date. pretected area may have the opportunity As raquired by Pub. t.95-511 this acoRessrs:Subrnit written comments to affect adversely the health and safety proposed rule has been subm!:ted to the and suggestions on the preposal and/or o( the public through an unobserved act.

the eupporting value/ impact analysis to Ofke of htanagement and Budget for whe ther Intentional or ina dvertent. lt the Secretary of the Commisalon. U.S. does not include NRCpersonnel. dearance of its information ecilection requiren enta.

Nudear Regulatory Commission. Persons duld be considered unfit for Wo<hington. D.C. 20555. Attention: duty Lf their facult;es were affected in a Re;ulatory Mexibility Act Certification Docketing and Service Branch. Single way contrary to safety by substances Based upon the Information available copies of the value/ impact analysis may such a~s alcohol or drugs. Additionally. *st this stage of the rulemaking be sbtained on request from the contact the phrase "' ' ' or otherwise unfit for proceeding and in accordance with the person listed below. Copies of duty * * '"is inteoded to require *

• Regulatory Flexibility Act of 1980. 5 comments received on the proposed consideration of the effects of other i

U.S.C. 005(b), the Commission hervby amendment and the value/ impact factors when determirdng an certifies that. if promulgated. this rule analysis may be e.xamined and copied Individual's fitness for duty such as will not have a significant economic for a fee in the Comm! sicn's Public fatigue, stress. illnes s, and temporary impact on a eubstantial number of small Document Room at 1717 H Street NW., physical 1=pairments.

Washington. D.C. between 8.15 a.m. and entitles. This proposed rule affect

ne proposed rule would requlte ' personnel with unescorted access to

500 p.m. commercial and industrial facilities protected creas of facilitics licensed l m FURTHER ins'ORNATION CONTACT: a licensed under to CFR 50.22 to estab!!sh, under the provisions of 10 CFR 50 0.: for l Ellis W.hferschoff. Office of Nuclear document. and implement procedures to which an operating license has been Regulatory Research U.S. Nuclear assure that personnel with unescorted granted.The companies that own these A466 t

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w ENCLOSURE "F" 5

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. -The Honorable Alan Simpson, Chairman _ ..

Subcommittee on Nuclear Regulation

. <-- Tommittee on Environment and Public Works United States Senate ,

Washington, DC 20510 '

Dear Mr. Chairman:

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

enclosed amendment to the Commission's rules in 10 CFR Part 50. The anendment will require licensees of nuclear power plants for which operating licenses have been or are being granted to: establish and implement adequate written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty.

, Licensees will be required to develop written procedures acceptable to the NRC within nine months after the effective date of the rule, or the date of issuance of an operating license, whichever is later.

Sincerely, Robert B. Minogue, Director Office of Nuclear Regulatory Research

Enclosure:

Amendment to 10 CFR Part 50 cc: Sengtor Gary Hart h%G E

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.- a The Honorable Alan Simpson 2 MAILING LIST The Honorable Morris K. Udall, Chairman

- , ) Subcommittee on Energy and the Environment Committee on Interior and Insular Af fairs United States House of Representatives Washington, DC 20515 -

r--_ . cc:- Rep. Manuel Lujan . ,,

The-Honorable Richard L. Ottinger, Chairman Subccomittee on Energy Conservation and Power Committee on Energy and Commerce -

United States House of Representatives Washington, DC 20515 1

cc: Rep. Carlos Moorehead e

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ENCLOSURE "G" .

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NRC REQUIRES LICENSEES TO ESTABLISH PROCEDURES TO ENSURE FITNESS FOR DUTY AT NUCLEAR POWER PLANTS

~

The Nuclear Regulatory Commission is amending its regulation to require that utilities licensed to operate nuclear power reactors establish written proce-

~ 'dures to provide reasonable assurance that Versonnel with unescorted access to

-' ~

protTcted areas of a facility are not under the influence of drugs or alcohol or otherwise unfit for duty.

The Commission believes the change to Part 50 of its regulations is needed to ensure that personnel unfit for duty are not given the opportunity to adversely affect the health and safety of the public in the operation of a nuclear power plant.

At this time, establishment of specific criteria to determine fitness for duty is being left to the individual licensee. The Commission v nts to allow each licensee to develop procedures that take into consideration not only fairness to its employees and due process, but also any conditions or circumstances unique to the facility.

The requirement to provide reasonable assurance that persons are not "otherwise unfit for duty" is intended to mandate consideration of factors such as fatigue, stress, illness and physical impairments.

A proposed rule on this subject vas published in the Federal Register on

. August 5,1982, for public commen.t. The final rule extends the requirements to NRC employees who have unescorted access to protected areas. Licensees will be expected to remove NRC personnel not fit for duty from protected areas of the plant and notify an approoriato NPC offir f al. The licensee is not expected, however, to process NRC personnel through fitness for duty actions--

punitive or nonpunitive--established for licensee personnel. A similar process AMG

. 1 Enclosure "G"

~

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is expected to be followed for licensee contractor personnel unless otherwise agreed by the licensee and contractor.

Utilities currently licensed to operate nuclear power plants must develop

~~

written procedures by (nine months after publication of the final rule in the Federal Register on

~

). New licensees must develop the procedures t,y the same date or on the date of issuance of an

. operating license, whichever is later.

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2 Enclosure "G" f

~The Honorable Alan Simpson, Chairman

- .~ ~"-

Subcommittee on Nuclear Regulation -- --

~~ , ", Com. mitt.ee.on Environment and Public Works United States Senate Washington, DC 20510

Dear Mr. Chairman:

The NRC has sent to.the'0ffice of the Federal Register for publication, the enclosed amendment to the Commission's rules in 10 CFR Part 50. The amendment will require licensees of nuclear power plants for which operating licenses have been or are being granted to: establish and implement adequate written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while-in those protected areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty.

Licensees will be required to develop written procedures acceptable to the NRC within nine months after the effective date of the rule, or the date of issuance of an operating license, whichever is later.

Sincerely, Robert B. Minogue, Director Office of Nuclear. Regulatory Research

Enclosure:

Amendment to 10 CFR Part 50 cc: Senator ~ Gary Hart g

jhn -

1 The Honorable Alan Siroson 2 MAILING LIST The Honorable Morris K. Udall, Chairman '

Subcommittee on Ener y and the Environment Committee on Interior and Insular Affairs

~-

~

United States House of Representatives .

. Washington, DC 20515

.. _ - _ . , cc:

Rep. Manuel Lujan .

< - -The-Honorable R chard L. Ott nger, i Cha rman i

~

i Subcommittee on Energy Conservation and Power Committee on Energy and Commerce .

United States House of Representatives Washington, DC 20515 ,

cc: Rep. Carlos Moorehead -

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. ENCLOSURE "G" w e h

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NRC REQUIRES LICENSEES TO ESTABLISH PROCEDURES TO ENSURE FITNESS FOR DUTY AT NUCLEAR POWER PLANTS The Nuclear Regulatory Commission is amending its regulation to require that utilities licensed to operate nuclear power reactors establish written proce-

N dures to provide reasonable assurance that personnel with unescorted access to

~

protected-arcas of a facility are not under the influence of drugs or alcohol

~

or otherwise unfit for duty.

~ ~ ~ ~

The Co mission believes the change to Part 50 of its regulations is needed to ensure that personnel unfit for duty are not given the opportunity to adversely affect the health and safety of the public in the operation of a nuclear power plant.

At this time, establishment of specific criteria to determine fitness for duty is being left to the individual liceh5ee. The Cor. mission vants to allow each licensee to develop procedures that take into consideration not only fairness to its employees and due process, but also any conditions or circumstances unique to the facility.

The requirement to provide reasonable assurance that persons are not "otherwise unfit for duty" is intended to mandate consideration of factors such as fatigue, stress, illness and physical impairments.

A proposed rule on this subject was published in the Federal Register on August 5, 1982, for public comment. The final rule extends the requirements to NRC employees who have unescorted access + rotected areas. Licensees will be expected NRC personnel not fit or duty from protected areas

'of the plant and notITy'~an appropriate NRC official. The licensee is not expected, however, to process NRC personnel through fitness for duty actions--

punitive or nonpunitive--established for licensee personnel. A similar process

. A4%

1 Enclosure "G"

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1

- . ~ .- . _ - . - . _. _.

' . I is ex;;ected to be followed for licensee contractor personnel unless otherwise agreed by the licensee and contractor.

Utilities currently licensed to operate nuclear power plants must develop written procedures by (nine months after publication of the

. .. final rule in the Federal Register on ). New licensees must

,. develop the procedures ~by the same date or on the date of issuance of an operating license, whichever is later.

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2 Enclosure "G" e e--- w re , a -,-

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1 APR 2 8 1963 MEMORANDUM FOR: Distribution FROM: T.G. Ryan '

Human factors Branch, DF0 l Office of Nuclear Regulatory Research l i

SUBJECT:

FITNESS FOR DUTY RULE PACKAGE AND SUPPORTING MATERIAL  ;

Attached as Enclosure #1 is an advance copy of a final fitness for duty rule package prepared in response to NRC Office comments on the rule, and guidance received from the Director, RES.

The rule package is being resubmitted to NRC Headquarters:,0ffices for concurrence by the Director, DFO. Attached as Enclosure #2 is a fact sheet on the rule prepared for the EDO by the Directors DF0 and RES, and myself.

Enclosure #2, therefore, reflects the position of the Director, Res on issues

'~

of need, implementation and enforcement. Statements contained in the fact sheet have been incorporated into the attached rule package where appropriate (i.e., Commission Paper, Federal Register Notice, Regulatory Analysis, Response to Public Comments). .

~~

In reviewing the attached rule package please keep two things in mind.

First, a resear.:h project initiated to establish a substantive justification and specific regulatory guidelines / criteria for the rule --~ has been terminated. Additionally, data developed on potential alcohol and drug abuse in the nuclear utility industry, to justify the rule and prepare a regulatory analysis, have been deleted from the rule package. ' Second, nominal guidelines for licensee responses to the rule, contained in the Commission Paper, Federal Register Notice, Regulatory Analysis and Response to Public Comments sections of the rule package, will probably be superseded by standard guidelines, being developed by a nuclear industry task force (i.e.,EEI,INPO, industry). References are made to the task force and its objective in appropriate sections the rule package (i.e., P.3 of Commission Paper, P.6 of Federal Register Notice, P.6 of Regulatory Analysis, P.14 of Response to Public Comments).

Questions concerning the rule package a71d/or fact sheet should be referred to the undersigned at 443-5942.

~ ~

1. MM .

Thomas G. Ryan

Enclosures:

Fitness for Duty Rule Package (4/28/83)

Fitness for Duty rule Fact Sheet DISTRIBUTION

'R. Benedict, NRR L. Bush, IE T. Dorian, ELO T. Allen, NMSS J. Cawley, DRR l DCht ,,

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APR 2 8 1983 FACT SHEET on Rulemaking Ccncerning Fitness For Duty For Personnel With Unescorted Access to Protected Areas of Nuclear Power Plants SCHEDULE: 4/19/82 8/ 5/82 Proposed rule printed as SECY 82-196 Proposed rule published in Federal Register

. . , 1/20/83 Revised rule distributed for NRC Division and Regional Office review 3/21/83 Final rule distributed for NRC Office concurrence 4/ 4/83 NRC Office concurrences requested

FINAL RULE: Amendment to 10 CFR 50.54 -

(x) Each licensee with an operating license issued under 10 CFR 50.21(b) or' 50.22 of this Part shall establish and implement '

adequate written procedures designed to provide reasonable assurance that all persons with unescorted access ;.o protected

-~

areas are not --

(1) Under the influence of alcohol; (2) Under the influence of any other drugs that could affect their faculties in any way contrary to safety; or (3) Otherwise unfit for duty because of mental or physical impairments that could affect their performance in any way contrary to safety.

~

BACrsGROUND INFORMATION:

Need for Rule l The NRC recognizes alcohol and drug abuse to be a social, medical,

_ _ and safety problem affecting people in almost every industry and

_ occupational group. For example, 46% of all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost of. $12-15 billion. Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcohol and drug abuse, as well as other emotional and psychological factors, are also prevalent in the nuclear industry. Prudence, therefore, requires -that appropriate precautionary measures be imposed to ,

reduce the probability of a person under the influence of alcohol, drugs, or otherwise unfit for duty either causing an accident or

. decreasing the effectiveness of the response to an accident. 1

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-h467 l i .'D . -- E - - _ - _ . .. _ _ _ _ _ __. _ __ . _ _ _

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2-Implementation of Rule _

k The rule.would be applicable to all' persons with unescorted access

~~~

to protected areas of nuclear power plants, including t!RC, personnel, since the licensee is ultimately responsible for the safety of the plant, and the NRC has no good way of guaranteeing that its personnel

-- a ~ resident at nuclear power plants,.or. visiting those plants, will t always be fit for duty. Licensees will be expected to limit their rt

-implementation of the rule with regard to NRC personnel to those procedures they exercise wi'h their own emoloyees arriving for duty g

or while on duty. Licensees _will be exoected tqCEemovD NRC personnel not fit for duty frt,i protectec areas of The olant and

'notif y an aDpropriate NRC offi_tt. _or official. - The licensee will not be expected to process NRC personneT through fitness for duty actions, punitive or non-punitive, established for licensee personnel .

This approach is different, but not incompatible, with the approach being taken on the " access authorization" rulemaking. In that case, the staff recommended position is..thit authorization for NRC personnel to have access to a licensed facility should not be subject to a personal background inytstigation and approval by the licensee. That function can and is provided by the, NRC. Fitness for duty, however, is a transitory si tuation that must be determined on an ongoing basis and therefore must be left to the licensee.

The rule would be applicabl'e to all parsons with unescorted access to~ protected areas. Selective application of the rule to only persons with access to the more restricteu vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital areas through assistance from or coercion of persons with unescorted access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs.

Enforcement of Rule The rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and techniques for determining fitness for duty (e.g., breath testers, psychological tests) taking into consideration circumstances unique to its facili+,y.

However, in order to facilitate enforcement of the rule, the hg]e,- e mentary Information for the rule specifies that written procedures wi 1 be exoected to respond to the following nominal guidelines:

~(F) a statement of responsibilities of program coordinator, managers,

~

supervisors, and employees who come into contact with persons with unescorted access to protected areas; (2) an observation procedure; h4V(

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Enforcement of Rule (Cont'd) .._

~

(3) a procedure (diagnosis, referral, return to duty) for assisting

- individuals who meet the criteria for alcohol / drug abuse or emotional

~ - instability; (4) an administrative procedure for processing individuals

.v-a# - who refuse assistance and/or who wish to exercise their appeal rights;

- and (5) educational materials for all ~ personnel and management to

-- --- acquaint them with the licensee's fitness for duty procedures.

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APR 2 8 1983 1

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.For: The Commissioners y From: # William J. Dircks ._ _

Executive Director for Operations

Subject:

FINAL RULEMAKING CONCERNING FITNESS FOR DUTY FOR PERSONNEL WITH UNESCORTED ACCESS TO PROTECTED AREAS

Purpose:

To obtain Commission approval to publish a final rule in the Federal Register which would require development and implementa-tion of written procedures providing reasonable assurance that

(-

personnel with unescorted access to protected areas of nuclear power stations, while in those protected areas, are fit for duty.

Licensees issued operating licenses under 10 CFR 50.21(b) or 7 50.22 will be required to develop written procedures acceptable to the NRC within nine months after the effective date of the rule, or the date of issuance of an operating license, which- g ever is later. =

Background:

On August 5, 1982, the Commission published for comment (47 FR 33980) a proposed rule amending its current regulation 10 CFR 50.54, " Conditions of Licenses" to require licensees to develop and implement written procedures concerning fitness for duty.

(See Enclosure "G" for Public Announcement of proposed rule.)

ADM sent copies of the proposed rule to all affected licensees ,

and other interested persons.

Seventy-three responses containing 310 comments were" received (see analysis in Enclosure "0"). Approximately forty percent

(

of the respondents favor the rule. The remainder question the gd necessity for the rule, stating that licensees are aware of the fitness for duty issue and are taking appropriate remedial gl action. Included in this'latter group are 22 of 36 utilities y%

responding, eight of 10 utility suppliers responding, and six 4 k of'seven private citizens identified with the nuclear industry. j' 2d bgyJ/# 3\

\O F t Approximately one-third of the comments involve socioeconomic and %q implementation issues. Recommendations were received for changes in the rule involving its wording, scope, and persons affected. c

Contact:

m f. y;TM w-u-MfS ?# #'~~ L' sn- W aan f

T. G. Ryan, RES kOl 44gsg4fyp S

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L 9 The Commissioners 2 The proposed Federal Register notice (Enclosure "A") includes a brief summary of major issues raised in the comments received.

Enclosure "D" provides a detailed discussion and resolution of all public comments. ._

A total of 102 comments were received in response. to five specific

- questions posed by the Commissioners in the Federal' Register notice. Nineteen respondents are in favor of the Commission

- u-- c= establishing specific fitne_ss. for duty criteria; three respondents feel that these criteria should be established by the individual

-- licensees. Twenty-seven respondents comment that the Commission should not specify specific methods (e.g. , breath testers, psycho-logical tests) for implementing the " Fitness for Duty" rule. Ten respondents favor limiting the rule to vital areas of the plant;

- ' - - five favor its application in all protected areas. Thirty-three, respondents favor extending the rule to NRC personnel; two do not favor such an extension. Three respondents comment that the NRC

,should not establish specific blood-alcohol level limits; one respondent f avors NRC establishing limits but does not recommend a specific level.

The final rule contained in' nclosure "A" includes coverage of NRC personnel based on the arguments that the utility is ultimately -

responsible for the behavior of all persons with unescorted access to its facility, and the NRC has no way of guaranteeing that its personnel resident at nuclear power plants, or visiting those plants, will always be fit for duty. Licensees would be expected to limit their implementation of the rule with regard to NRC v personnel to those procedures they exercise for their own employees arriving for duty or while on duty. In the event that a licensee ouestions the fitness for duty of an }1RC emolovee t he licensee Will be expected to contact an appropriate NRC office or official 9 for noidance. The licensee woula not De expected to, process NRC personnel through fitness for duty actions, punitive or nonpunitive, established for licensee personnel. This approach is different, but not incompatible, with the approach being taken on the

" access authorization" rulemaking. In that case, the staff d recommended position is that authorization for NRC personnel to T

- - have access to a licensed facility should not be subject to a

- personal backgrourc investigation and approval by the licensee.

That function can cad is provided by the NRC. Fitness for duty, however, is a transitory situation that must be determined on an ongoing basis and therefore must be lef t to the licensee. It i I anticipated that a similar process will be followed with regard to licensee contractors' personnel and with regard to personnel from other government and private sector agencies who might be granted unescorted access to protected areas by the licensee. The

! rule also retains the word " protected" rather than using the term

" vital" to describe affected areas of the plant. Selective applica-tion of the rule to only persons with unescorted access to vital areas would be impractical, since implementation of the rule will h b(l1

The Commissioners 3 occur at the entrance to and in the protected areas of the plant.

Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital areas through assistance or coercion of persons with unescorted

, _ _ access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs.

Finally, the rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and

'71~ techniques for determining fitness for duty (e.g., breath testers, psychological tests) taking into consideration

' " ~ ~

circumstances unique to its facility. However, in order to facilitate enforcement of the rule, written procedures will be expecteo to respond to the following nominal guidelines: (1) a

-'~~~

statement of responsibilities of program coordinator, managers, supervisors, and employees who come into. contact with persons with unescorted access to protected areas; (2) an observation

_ procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet the criteria for alcohol / drug abuse or emotional instability; (4) an administrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) educational materials for all personnel and management to acquaint them with the licensee's fitness for duty procedures. Additionally, an industry task force staf fed by representatives from the Institute of Nuclear Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

Discussion: The NRC does not have regulations which specifically address use of alcohol and other drugs or the broader issue of fitness for duty of persons with unescorted access to protected areas at nuclear power stations. Since operation of a nuclear. power sta-tion by personnel not fit for duty could degrade the licensee's ability to operate the facility in a safe manner, development of a requirement concerning the determination of fitness for duty with respect to the consumption of alcoholic beverages, use of other drugs, and mental or physical impairments which could affect a person's faculties in a way contrary to safety is necessary to protect the health and safety of the public.

The subject final amendment will require that licensees operating facilities licensed under 10 CFR 50.21(b) or 50.22 establish and implement adequate written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty.

The definition of protected area used in the final rule was taken

- verbatim from 6 73.2(g). It was selected because any person with unescorted access to a protected area could adversely affect the d4 dol u

.. o The Commissioners 4 health and safety of the public through an unobserved act whether intentional or inadvertent.

Personnel wo'uld be considered ' unfit for duty if their faculties

~

were affected in a way contrar to safety by substances such as alcohol or other drugs. Additionally, the phrase,"... or other-wise unfit for duty..." is intended to require the licensee to consider other factors when determining an individual's fitness

. c .__ .. E for duty, such as the effects

' ' ~~

of fatigue, stress, illness, and

. '. physical impairments.

Consideration was given.to incorporating this " Fitness for Duty" rule into the draft proposed revision to 10 CFR 73.56 (Access Authorization Rule). Because of the different orientations of the two rules, i.e., trustworthiness (S 73.56) versus fitness

($ 50.54), and the need to rapidly establish a regulatory basis from which to address the fitness for duty issue, the decision was made to keep the two rulemakings separate, at least initially.

~

After gaining experience from the implementation and use of these rules (e.g. , 2-3 years), the staff will reconsider whether these rules should be combined. Additionally, the staff considered extending the rule to nuclear power plants under construction.

It was determined by the staff that these plants need not be included in the rule since construction presents no potential adverse effect on the public health and safety due to a nuclear release.

The resource impact on the NRC staff of this final rule is esti-mated to be two person-days per facility per year.

' Recommendations: That the Commission:

1. Approve publication of the final rule as set forth in Enclo-sure "A", to amend 10 CFR 50.2 and 50.54 by requiring that licensees operating facilities licensed under 10 CFR 50.21(b) or 50.22 establish and implement adequate written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those

. . . protected areas, are not (1) under the influence of alcohol, (2) under the influence of any other drugs that could affect their faculties in any way contrary to safety, or (3) other-wise unfit for duty because of mental or physical impairments which could affect their performance in any way contrary to safety.

2. In order to satisfy the requirements of the Regulatory Flexi- i bility Act, 5 U.S.C. 605(b), certify that this final rule will not have a significant economic impact on a substantial number of small entities. This certification is included in

., the enclosed Federal Register notice.

hWl 1-l 1- .

f. -

The Commissioners 5

3. Note:

a. That, in accordance with 10 CFR 51.5(d)(3) neither an environmental impact __ statement nor a negative declara-tion need be prepared in connection with this rulemak-

~

ing action since the amendment is nonsubstantive and

~

1~ .

insignificant from the standpoint of ertvironmental impact.

'. v - -- _ # . b. ThattheSubcommi.tteeonNuclearRegul$tionofthe Senate Committee on Environment and Public Works and the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce will be informed.

-- - c. That ADM will send copies of the final rule to all affected licensees and other interested persons follow-ing Commission approval.

, d. This rule contains information collection requirements that were reviewed and approved by the Office of Manage-ment and Budget.

e. That a public announcement will be issued (Enclosure "G").

f. A Regulatory Analysis is attached is Enclosure "B".

g. 'That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and the reasons for it as required by the Regulatory Flexi-i bility Act.

i Schedulina: Recommend affirmation at an open meeting.

William J. Dircks .

Executive Director for Operations

Enclosures:

"A" - Federal Register' Notice of Final Rulemaking "B" - Regulatory Analysis "C" - Analysis with-Respect to Periodic Systematic

- Review of Regulations "D" - Resolution of Public Comments on Rule Changes to

! 10 CFR 50.54

l. "E" - Proposed Rule on Fitness for Duty (FR 08/05/82) p "F" - Letters to Coneess "G' - Public Announcement l

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ENCLOSURE "A" 8

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[7590-01]

NUCLEAR REGULATORY COMMISSION

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10 CFR Part 50

. Personnel with Unescorted Access to Protected Areas: Fitness for Duty AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Commission is amending its regulations to require that

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certain licensees establish and implement written procedures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protscted areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty. The Commission has approved this rule because of a concerb that certain persons could become unfit for duty due to the effects of substances such as alcohol or other drugs and, thereby, their performance could adversely impact the health and safety of the public. The result of the rule will be the implementation of fitness for duty procedures industry-wide that are designed to provide greater assurance of safer operation of licensed facilities. Licensees issued operating licenses under 10 CFR 50.21(b) or 50.22 will be required to develop and implement adequate written proce-dures within nine months after the effective date of the rule, or the date of issuance of an operating license, whichever is later.

EFFECTIVE DATE:

FOR FURTHER INFORMATION CONTACT:

Thomas G. Ryan, Office of Nuclear Regulatory Research U.S. Nuclear Regulatory Commission

. Washington, D.C. 20555,(301-443-5942)

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Enclosure "A" c

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SUPPLEMENTARY INFORf1AT10N: The Commission recognizes alcohol and drug abuse to be a social, medical, and safety problem affecting people in almost every industry and cccupational group. For example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports th'at 46% of all non-fatal and 40% of all fatal U.S.

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~ industrial; accidents involve alcohol, at an annual cost of $12-15 billion.

. Given the pervasiveness of the problem in our society, it'seems reasonable to assume that alcohol and drug abuse, as well as other emotional and

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psychological factors, are also p~r evalent in the nuclear industry.

~ Prudence, therefore, requires that appropriate precautionary measures be imposed to reduce the probability of a person under the influence of alcohol, drugs, or otherwise unfit for duty either causing an accident or decreasing the effectiven~ess of the response to an accidenti

. Alcohol and drug abusers' job performance can be expected to be negatively affected due to the presence of, or withdrawal from, chemicals in their blood stream. For example, 4 ounces of alcohol in the blood stream of a 165 pound male requires'spproximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize.

This is one reason other regulatory agencies (e.g., U.S. Department of

, Transportation) mandate specific periods of abstinench (e.g., 4 or 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />) X ,

for interstate truck drivers, commercial airline pilots, etc., prior to coming on duty. Drugs other than alcohol such as cocaine and hashish require as much as 24-72 hours to metabolize.

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A recent Tennessee Valley Authority (TVA) 1979 Peport on its Alcohol g and Drug Dependency Program states that the program served 350 employees k during that year (one out of every 143). TVA estimates that its annual y costduetoalcoholabusealoneisapproximately$18.5million.fAnNRC 9 Alcohol and Drug Dependency Program official estimates that the Commission g program serves about one of every 100 employees annually. The annual

~ cost of alcohol abuse alone to the NRC based on the TVA cost formula, is j estimated to be approximately $1.85 mill g As recently as mid-1981 approximately one-third Edison Electric Institute (EEI) member companies operating nuclear stations had no programs to deal with this issue. More j recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05,  ;

" Increasing Frequency of Dru'g-Related Incidents," reports a steadily increasing number of drug related arrests and terminations being reported

, by the nuclear industry since 1978. The Commission has determined,

. A%7 2 Enclosure "A"

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[7590-01]

therefore, that a regulation is necessary which would require licensees to establish written procedures tc, provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not under th? influence of alcohol, other drugs, or otherwise unfit for duty.

k~ The rule (amendment to 10 CFR 50.54) will apply to all persons,

.. including NRC personnel, with unescorted access to protec'ted areas in facilities of licensees issued operating licenses under 10 CFR 50.21(b)

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or 50.22. This category of perso'nn'el"was chosen because any person with

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unes'corted access to a protected area may adversely affect the health and safety of the public through an unobserved act, whether intentional or inadvertent.

Persons would be considered unfit for duty-if their faculties were

- affected in a way contrary to safety by substances such as alcohol or other drugs. Additionally, the phrase ".. .or otherwise unfit for duty.. . ,"

which is included in the rule, is intended to require that licensees con-sider the effects of other factors Ech as fatigue, stress, illness, and physical impairments when determining an individual's fitness for duty.

The rule will require licensees operating comme /cial and industrial facilities licensed under 10 CFR 50.21(b) or 50.22 to establish and imple-ment procedures to assure that personnel with unescorted access to protected areas are fit for duty.

At this time, establishment of specific criteria to be used to deter-mine fitness for duty and specific methods of implementation of this requirement are being left to the licensee. This will allow 'each licensee to develop procedures which take into consideration not only fairness to, and due process for, its employees, but also any conditions or circumstances unique to its facility. Therefore, the rule is broadly worded.

On August 5, 1982, the NRC published in the Federal Register (47 FR 33980) the proposed " Fitness for Duty" rule amending SS 50.2 and 50.54 of 10 CFR Part 50. A total of 73 responses containing 310 comments were received, all of which were evaluated in developing the final rule.

. The following discussion highlights the major issues raised in the com-ments received and their resolution (comments received and a more complete discussion of their resolution are available for review in the Commission's

- Public Document Room at 1717 H Street NW., Washington, D.C. 20555).

A4&l 3 Enclosure "A"

[7590-01)

Coma:ents were received on 16 issues grouped under the following four headings: . ..

1. Overall agreement or disagreement with the rule, citing utility a.areness or non-awareness of, and action taken to resolve, the fitness for duty issue;

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Socioeconomic issues (legal, union, monetary cost, morale) which might be raised if the rule is promulgated; * -

3. Implementation issues which should or should not be resolved

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• prior to issuance of'the final rule-(e:g. , definition of terms, use of

-breath testers and other diagnostic techniques, ircpairment standards); and

4. Recommended changes in the proposed rule (i.e., inclusion of NRC personnel, application to protected versus vital areas of the power station, guarantees of effectiveness, recordkeeping).

Approximately two-thirds of the respondents disagreed with the need

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for a rule, stating in essence that: (1) the utilities are aware of the fitness for duty issue and are taking appropriate remedial action, (2) the NRC has not established a sufficient ~need for the rule, and (3) the rule should be part of a draft proposed 10 CFR 73.56 " Access Authorization"

, rule. Included in this group are 22 of 36 utilities ' responding, eight of 10 utility supplier responding, and six of seven private citizens identified with the nuclear industry.

The Commission has determined that there is sufficient evidence to indicate that the alcohol and drug issue touches the i ear utility industry. Therefore, the Commission is issuing a broad regulation which allows each licensee to develop written procedures that take into con-sideration not only fairness to, and due process for, its employees, but also any condition or circumstance unique to its facility. The Commis-sion considered incorporating the provisions of this rule into the

,' behavioral observation program portion of a draf t proposed " Access Authorizati'n"o rule. It decided not to do this because it felt that broadening the scope of the draft proposed " Access Authorization" rule would complicate and delay this final " Fitness for Outy" rule. The importance.of establishing a regulation which addresses the specific issue of fitness for duty necessitates proceeding independently with the present rule. After some experience has been gained through the imple-

, mentation of both the " Fitness for Duty" rule and the draf t proposed  ;

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" Access Authorization" rule (e.g., 2-3 years), consideration will be given to combining them.. Additionally, the Commission considered extending the rule to nuclear power plants under construction. It was determined that these plants need not be included in the rule since construction presents no potential ~ adverse effect on the public health and safety due

, . ' ~~ to a nuclear release.

, Several respondents commented th'at the development and implementa-tion of " fitness for duty" procedures would cause the licensee legal- and

'D'* union related liabilities, significant monetary costs, and would have a

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--deleterious effect on employee morale. The Commission believes the licensee, its legal counsel, and unions can resolve internally legal and

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union issues, if any, before the licensee submits final written proce-dures to the NRC. Fitness for duty programs are- currently being imple-mented without significant legal or union liabilities by almost all Federal and State government agencies, and the majority of regulated and non-regulated U.S. industries. Secondly, monetary costs should be minimal for utilities which currently have in operation some form of fitness for duty program (as often claimed by the utilities responding to the public announcement). Nationwide, absenteeism due to alcoho1 and drug-abuse costs U.S. industry an average of $300 annually for every worker. Alcohol and drug abusers lose an additional 25% of their productive time when on the job, at an average annual cost to U.S. industry of approximately

$2900 per alcohol or drug abuser. The total cost to U.S. industry annually is between $12 and 15 billion. With regard to fitness for duty programs, Wrich 1980,1 reports that U.S. industry benefits at the rate of 10 dollars in decreased absenteeism, fewer accidents, and increased productivity for every dollar it spends on fitness for duty. Finally, the Commission has found no documented evidence of experience with fitness for duty programs in other industries (e.g., civilian aviation, aerospace, electronics) which indicate that employee morale has been affected negatively. On the contrary, alcohol / drug rehabilitation programs tend to enhance morale since the parent company is perceived as being interested and supportive of employees in solving their personal problems.

IWrich, J.T. , The Employee Assistance Program; updated for the 1980's.

City Center, Minnesota: Hazelden Publishing Co., 1980.

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Enclosure "A"

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Comments concerning rule implementation issues such as definition of terms, use of diagnostic tools such as breath testers, or establish-ment of fitness for duty standards were received.from 58 of 73 respond-ents. Most of these expressed a need for definitions and standards, while objecting to the' use of breath testers. As stated above, the

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Commission. believes that a broadly wordid ru'le is needed which allows the

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licensee to develop specific standards and criteria for fitness for duty.

The rule is broadly worded in keeping with the belief that each licensee

~ " " * ~ should establish specific procedures and techniques for determining

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-fitness for duty (e.g. , breath testers, psychological 'testr) taking into 9

consideration circumstances unique to its facility. However, p order to facilitate enforcement of tha rule, written procedures will be expected i

to respond to the 'following nou;inal guidelines

.(1) a statement of respon-

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, , sibilities of program coordinator, managers, supervisors, and employees l

who come into contact with persons with unescorted access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet the criteria for alcohol /

drug abuse or_ emotional instability; (4) an administrative procedure for k

, processing individuals who refuse assistance and/or who wish to exercise

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their appeal rights; and (5) educational materials for all personnel and .

management to acquaint them with the licensee's fitness for duty procedures.

Additionally, an industry task force staffed by vepresentatives from the' s InstituteofNuclearPowerOperations(INPO),EdisonEleEtricInstitute (EEI) and the utilities, is developing a set of standard guidelines for licensees,to use in responding to this rule. -

Five specific recommendations for changes in the proposed rule were received from 56 of the 73 respondents. These involve: (1) changing the word " ensure" to the terEi " provide reasonable-assurance;" (2)'exterding

' the rule to all persons witih unescorted access, thereby including NRC

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personnelq ~(3) wording the rule broadfy; (4)' limiting the rule to " vital" rather thi}n to the more general " protected" areas of the plant; and (5) eliminating the requirement for maintaining records of written proce-dures for the~ life of the plant.

The Commission has accepted recommendations (1), (2), 13), and (5);

each of which has been incorporated in the final rule. The word " ensure" was changed to the term "prodide reasonable assurance." Thelrule was A%7 6

• Enclosure "A" l J

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extended to all persons, including NRC personnel, since the licensee isD l

ultimately responsible for the behavior of all persons with unescorted l access to protected areas of its facility, and the NRC has no way of NJ guaranteeing that its personnel resident at nuclear power plants, or visiting those plants, will always be fit for duty. Licensees will be {

- - - expected t,o limit their implementation of the rule with regard to NRC personnel'to those procedures they exercise for their own. employees

_ arriving for duty or while on duty. In the event that a licensee

-m- questions the fitness for duty of an NRC employee, the licensee will be L/

- --expected to contact an appropriate NRC office or official for guidance.

The licensee will not be expected to process NRC personnel through fitness \

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for duty actions, punitive or nonpunitive, established for. licensee personnel. It is anticipated that a similar process will be followed .

with regard to licensee contractors' personnel and with regard to per-sonnel from other government and private sector agencies who might be granted unescorted access to protected areas by the licensee. The rule is broadly worded in keeping with the Commission's belief that each licensee should establish criteria for fitness for duty and implemen-tation methods (e.g. , breath testers, psychological t,ests) taking into consideration circumstances unique to its facility. The requirement that records of the written procedures be kept for the life of the plant has been eliminated since paragraph (1) of the rule requires that the licensee's procedures be in written form.

Recommendation (4) involving vital rather than protected areas was not included in the final rule. Selective application of the rule only to persons with unescorted access to vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital areas through assistance or coercion of persons with unescorted access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs. Finally, the word

" temporary" modifying the term physical impairments in paragraph (x)(1)(iii) of the proposed rule was eliminated as not being meaningful to the rule.

Mental and physical impairments, whether temporary or permanent, may or may not preclude a person from being fit for duty.

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7 Enclosure "A"

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REGULATORY ANALYSIS The Commission has prepared a regulatory analysis for this rule.

The analysis examines the costs and benefits of the rule as considered by the Commission. 'A' copy of the regulatory analysis is available for

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~._~~~ inspection and copying for a fee at the NRC Public Document Room, 1717 H Street NW., Washington, D.C. 20555.

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.n PAPERWORK REDUCTION ACT STATFMENT The info'rmation collection' requirements contained in this rule have been approved by the Office of Management and Budget; OMB Approval No:

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3150-0011. , - -

REGULATORY FLEXIBILITY ACT CERTIFICATION In accordance with the Regulato[y Flexibility Act of 1980, 5 U.S.C.

605(b), the Commission hereby certifiey that this rule will not have a significant economic impact on a substantial number of small entities.

This final rule affects personnel with unescorted access to protected areas of facilities licensed under 10 CFR 50.21(b) or 50.22 for which an operating license has been granted. The companies that own these facil-ities do not, fall Rithin the scope of "small entities" set forth in the Regulatory Flexibility Act or the small business size standards set out in regulations issued by the Small Business Administration in'13 CFR Part 121. Licensee contractors, whose personnel are affected by imple-mentation of this rule, may fall within th'e scope of small entities.

_ _ '[hese contractors will not,, however, incur costs of establishing and managing fi.tness for duty procedures required by the rule. Potential costs associated with small' entity personnel rehabilii.ation or other i

administrative processing as a result 6 ie rule will depend on the type of procedure maintained by these %' u . : ties to handle issues such as

-fitness foi duty. I.n other l!.S. mdustr. x these costs are normally covered by group health insurance and administrative staff already main-tained by the entity. Therefore, it is the determination of the NRC that implementation of this rule does not me' e t the threshold of a significant A %1 .

, 8 Enclosure "A"' l}

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[7590-01) economic impact. No comments were received from small entities to the public announcement- (47 FR 33980) of the proposed rule that it would adversely affect them.

L'IST OF SUBJECTS IN]10 CFR PART 50 Antit ust, Classified information, Fire prevention, inter governmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting Feijoirements.

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~ ' Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and Section 553 of Title 5 of the United States Code, the following amendment to 10 CFR Part 50 is published as a document subject to codification.-

PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES:

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1. The authority citation for'~Part 50 continues to read as follows:

Authority: Secs.103,104,161,182,183,186,189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended sec. 234, 83 Stat'. 1244, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846), unless otherwise noted.

Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat.

2951 (42 U.S.C. 5851). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued *under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Sections 50.100-50.102 also issued under sec. 186, 68 Stat. 955 (42 U.S.C. 2236).

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

~ 2273),'SS 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));

SS 50.10(b) and (c) and 50.54 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and SS 50.55(e), 50.59(b), 50.70, 50.71,

. 50.72, and -50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

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A4ET 9 Enclosure "A"

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2. A new paragraph (y) is added to S 50.2 to read as follows:

$ 50.2 Definitions. ..

A A A A M (y) " Protected area" means an area encompassed by physical barriers to which access is controlled. --

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3. A new paragraph (x) is added to S 50.54 to read as follows:

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S 50.54 Conditions of licenses. * -

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(x) Each licensee with an operating license issued under S6 50.21(b)

.---- - or 50.22 of this Part shall establish and implement adequate written proce-dures designed to provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas,

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are not -- .

(1) Under the influence of alcohol; (2) Under the influence of any other drugs that could affect their faculties in any way contrary to safety; or (3) Otherwise unfit for duty because of mental or physical impair-ments that could affect their performance in any way contrary to safety.

Dated at this day of , 1983.

For the Nuclear Regulatory Commission.

Samuel J. Chilk Secretary of the Comm'ission 6- e re e

[hb7 10 Enclosure "A" J

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ENCLOSURE "B"

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, l REGULATORY ANALYSIS FOR FINAL RULE TO PROVIDE REASONABLE ASSURANCE THAT PERSONNEL WITH UNESCORTED ACCESS TO PROTECTED AREAS ARE NOT UNDER~THE INFLUENCE OF DRUGS OR ALCOHOL OR

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. OTHERWISE UNFIT FOR DUTY

' 1l" PROPOSED ACTION

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1.1 Description This final rulemaking action ~ requires each commercial and industrial facil-ity licensed under 10 CFR 50.21(b) or 10 CFR 50.22 to establish and implement procedures designed to provide reasonable assurance'that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty.

1. 2 Need for Proposed Action .

The Commission recognizes alcohol and drug abuse to be a' social, medical and safety problem of epidemic proportions, affecting people in almost every industry and occupational group. For example, the National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost of $12-15 billion. Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcohol and drug abuse, as well as other emotional and psychological factors, are also prevalent in' th'e ' nuclear industry. Prudence, therefore, requires that appropriate precautionary measures be imposed to reduce the probability of a person under the influence of alcohol, drugs, or otherwise unfit for duty either causing an accident or decreasing the effectiveness of the response to an accident.

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Alcohol and. drug abusers' job performance can be expected to be negatively affected due to the presence of, or withdrawal from, chemicals in their blood i stream. For example, four ounces of alcohol in the blood stream of a 165 pound 1

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A461 1 Enclosure "B" a -

male requires approximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize. This is one reason other regulatory agencies (e.g.,, U.S. Department of Transportation) mandate specific ,

periods of abstinence (e.g. , 4 or 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />) for interstate truck drivers, commercial airline pilots, etc., prior to coming on duty. Drugs other than alcohol such as cocaine and hashish require as much as 24-72 hours to metabolize.

A recent Tennessee Valley Authority (TVA) 1979 Report on its Alcohol and Drug Dependency Program states that the program served 350 employees during

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.that year (one out of every 143). TVA estimates that its annual cost due to 2 q

.= -- 2 alcohol abuse alone is approximately $18.5 million. An NRC Alcohol and Drug

~.,.___Jependency. Program official estimates that the Commission program serves about k one of every 100 employees annually. The annual cost of alcohol abuse alone to the NRC, based on the TVA cost formula, is estimated to be approximately

-- $1.85 million. As recently as mid-1981 approximately one-third of Edison Electric Institute (EEI) member companies operating nuclear stations had no programs to deal with this issue. fiore recently, NRC Inspection and Enforce-ment (IE) Information No.tice No. 82.05, " Increasing Frequency of Drug-Related Incidents," reports a steadily increasing number of drug-related arrests and terminations being reported by the nuclear industry since 1978. The reported incidents involve a range of licensee and contractor person,nel, including  !

personnel in operations and security. The reported incidents are widespread I geographically, and involve power reactor sites in each of the five NRC regions.

Reported incidents have involved both onsite use or possession of alcohol

. and drugs, and personnel reporting to work under the influence of certain con-trolled substances. 14arijuana was the most frequently reported controlled sub- -

stance involved in these events; however, incidents involving amphe.tamines, cocaine, hashish, and methaqualone have also been reported.

Since operation of a nuclear facility by persons not fit for duty could degrade a licensee's ability to operate the facility in a safe manner, develop-ment of a regulation concerning the determination of fitness for duty with

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respect to the consumption of alcoholic beverages, the use of other drugs which affect the faculties in a way contrary to safety, stress, and physical impair-ments, which could affect performance in any way contrary to safety, is neces-sary to protect the health and safety of the public.

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AAG7 2 Enclosure "B"

8 1.3 Value/ Impact of Proposed Action 1.3.1 NRC Operations The value of this final rulemaking action to the NRC will be an enhanced capability to carry out its' mission with respect to ensuring the health and i ~ ~ safety of the public by requiring licensees to focus on fitness for duty of all personnel authorized unescorted access to protected areas of their facil-ities. NRC personnel come under the provisions of this rule since the licensee

~ has ultimate responsibility for the behavior of all persons with unescorted Ecc~esrto 'its facility.

The impact of this final rulemaking action on the NRC will. be the time spent developing and enforcing the regulation. Annual audits of personnel fitness for duty program procedures by the NRC staff will require approximately 2 man' days per year per station. The total current annual cost to the NRC, based on an'.

hourly rate of $80, would be $72,960 (57 stations x'8 man-hours x 2 days x $80).

1.3.2 Other Government Agencies ~

This rule will not impact other government agencies, unless the govern-ment agency is a licensee, such as TVA. .

1.3.3 Industry The value of this final rulemaking action to industry will be enhanced assurance of safety of facility operation. Implementation of this regulation will also benefit the licensee by reducing plant downtime or equipment damage caused by errors committed by personnel unfit for duty. The National Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost of $12-15 billion. With regard to fitness for duty programs, Wrich 1980,1 reports that U.S. industry benefits 10 dollars in decreased absenteeism and accidents, and increased productivity for every dollar it spends on fitness for duty. The impact on the industry will be the cost of developing and implementing the written procedures. The NRC estimates that individual licensee burden to develop written proce'dures required by the rule will be approximately 1,200 man-hours over a nine month period if no fitness 2Wrich, J.T., The Employee Assistance Program; updated for the 1980's. City Center, Minnesota: Hazelden Publishing Co., 1980.

3 Enclosure "B" a

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for duty program currently exists at the licensee's facility. The nine month (1200 hour0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br />) program development period resulted from discussions with fitness for duty program personnel in government and private industry. Using an hourly rate of $80, the cost per licensee to develop written procedures specified in this rule will be approximately $96,000 (1200 hours0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br /> x $80). The total cost

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for approximately 57 currently licensed nuclear power stations to establish

. written procedures in ~ response to the rule will be approximately $5,472,000

'(57 stations x $96,000). Since the r',le is broadly stated giving the licensee

~'-~ c6nsiderable latitude in developing and managing its procedures, only a

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~ 7eneral-an~nual cost statement can be given here. If the licensee appoints /

contracts a full-time program manager, its annual cost will be approximately

$50-60 thousand. The total annual cost for approximately 57 currently licensed nuclear power stations to implemerit written procedures- under the provisions of the rule will be approximately $2,850,000 - $3,420,000 (57 stations x $50-601 thousand). Included in this estimate are manager salary, office space, proce-dures reviews, recordkeeping and processing of clients. Costs associated with such things as rehabilitation are normally~the responsibility of the employee.

This is the practice among non-military government agencies and private industry.

, The above cost estimates were derived from contacts with fitness for duty program personnel from private industry and non-military government agencies.

Included among these is the NRC Alcohol and Drug Dependency Program which serves headquarters and regional offices. '

The final rule will allow licensees to develop the specifics of their written procedures taking into consideration fairness to and due process for their employees. A more specific regulation that attempted to do this in detail could be cumbersome, inflexible, and unnecessarily detailed.

r 1.3.4 Public

,' ~Th'e val'ue of this final rulemaking action to the'public will be greater assurance of safer operation of nuclear facilities. It will also have the potential for benefiting the public economically since positive cost-benefit ratios are reported from industries with fitness for duty programs.

1.3.5 Decision on Proposed Action Licensees should be required to establish and implement written procedures

, designed to provide reasonable assurance that all persons with unescorted i A%1 4

• Enclosure "B" l 3 -

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access to protected areas, while in those protected areas, are not under the influence of drugs or alcohol ,or otherwise unfit for duty.

2. TECHNICAL APPROACH

.- -- Various methods of establishing a program to provide reasonable assurance that personnel with unescorted access to the protected area of commercial and

'. . industrial facilities licensed under 10 CFR 50.21(b) or 10 CFR 50.22 were cen-

= -- _sidered. The procedures used by the Federal. Aviation Administration (FAA) were

_._ - reviewed for their applicability to nuclear facilities as were the recent changes proposed to the program. The current FAA regulations state that:

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(a) No person may act as a crew member of a civil aircraft- .

(1) Within 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; or (3) While using any drug that affects his faculties in any way contrary to safety."

Consideration was also given to incorporating the provisions of this final rule into the behaviorial observation program which is being developed as a part of the draft proposed changes to 10 CFR 73.56 (Access Authorization Rule).

This was not done because it is felt that broadening the scope of the draf t proposed " Access Authorization" rule would complicate and delay this " Fitness for Duty" rule. The importance of establishing a regulation which addressed the specific issue of fitness for duty necessitated proceeding independently with this " Fitness for Duty" rule. After some experience has been gained through the implementation of both this final " Fitness for Duty" rule and the proposed " Access Authorization" rule (e.g., 2-3 years), consideration will be given to combining them.

Finally, the staff considered extending the rule to nuclear power plants under construction. It was determined by the staff that these plants should not be included in the rule since they present no potential adverse effect on

' the public health and safety due to a nuclear accident.

A broad administrative approach is chosen to accomplish this rulemaking

~

action. Each licensee will be required to establish and implement procedures 4%7

~

5 . Enclosure "B"

~

J

which provide reasonable assurance that all persons with unescorted access to protected areas, while in,those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty. The category of per-sonnel was restricted to those personnel with unescorted access rather than anyone with access to a protected area because an individual with unescorted access may have the opportunity to perform an unobserved action which could effect the public health and safety. It includes all persons, including NRC personnel, who have been authorized unescorted access to protected areas.

^ '- - - - -

The detailed method of implementing this requirement is lef t to the

.. .- -licensee, rather than to the issuance of a very detailed and cumbersome regulation, in order to allow each licensee to focus on its own situation and provide a solution which takes into consideration its employees and any circum-

~ ' ~ ~~s ~ tances unique to its facility. However, in order to facilitate enforcement of the rule, written procedures will be expected to respond to the following nominal guidelines: (1) a statement of responsibilities of program coordinator, managers, supervisors, and employees who come into contact with persons with unescorted access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet the criteria for alcohol / drug abuse or emotional insta ility; (4) an admin-istrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) educational materials for all personnel and management to acquaint them with the licensee's fitness for duty procedures. Additionally, an industry task force staffed by representatives from the Institute of Nuclear Power Operations (INPO), Edison Electric Ir.stitute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding of this rule.

3. PROCEDURAL APPROACH 3.1 Procedural Alternatives 3'.1.1 Specific Regulation--issue a regulation which requires personnel with unescorted access to protected areas to be fit for duty as specifically defined in the regulation. Such a regulation would have to specify, among other things, conditions of fitness for duty (e.g., blood-alcohol level), use  !

A 4UT 6 Enclosure "B"

~

1- i

of other controlled /non-controlled drugs, and revocation, suspension or modifi-

-cation of an operating -licenser 3.1.2 Broad Regulation--issue a regulation which requires personnel with unescorted access to protected areas to be fit for duty in accordance with

~

' ~ ~

general guidelines.

3.1.3 Policy Statement--issue a Commission policy statement which deli-

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= = - _

nedt'es Commission policy regarding fitnesi for duty of personnel with unescorted

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access to ' protected areas.

3.1.4 No Change in Existing Regulations--maintain status quo. The NRC does not have regulations which specifically address use of alcohol and other ~

drugsorthebroaderissueoffitnessfordutyofpersonswithunescorjed access to protected areas at nuclear power stations.

3.2 Value/ Impact of Procedural Alternatives The value to the Commission of alternative (1), a specific regulation, is that it would have a regulatory basis for enforcement. The impact on the NRC of alternative (1) is that a regulation which attempted to fully define all instances when an individual should be considered unfit for duty, while protect-ing the rights of the individual involved, would necessarily be cumbersome and less than an optimal approach for any particular licensee facility.

The value to the Commission of alternative (2), a broad regulation, is that it would have a regulatory basis for enforcement, it would provide a basis for future regulatory guides, and it would allow each licensee to develop proce-dures which take into consideration not only fairness to and due process' for its

~ '

employees but also any conditions or circumstances unique to its facility. The impact on the Commission of alternative (2) is that it mg be harder to enforce than a specific regulation since it would not require industry-wide standardiza-

' tion of their fitness-for-duty procedures. However, an industry task force

. staffed by representatives from the Institute of. Nuclear Power Operations (INPO),

Edison Electric Institute (EEI) and the utilities, is developing a set of 84dd 7 Enclosure "B"

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J

u

• standard guidelines for licensees to use in responding to this type of broadly worded rule. - --

The value to the Commission of alternative (3), a policy statement, is it would provide the greatest degree of flexibility for implementation since con-formance to the establishe'd policy by the licensees would be voluntary. The

~

' ~ impactontheCommissionofalternative(3)isthatitwouldnotprovidearegu-

'latory basis for enforcement.

The value to the Commission of alternative (4), no change in existing

"~~

regulations, is it would eliminate the requirement for allocating two man-days

-~~~pir eaF p~er plant among NRC licensing and inspector personnel. The impact on the Commission of alternative (4) is that the Commission could be perceived as indifferent to alcohol and drug abuse at nuclear power stations. At present, the Commission has no regulations'which specifically address alcohol'and drugs "

, or the broader issue of fitness for duty.

< 3.3 Decision on Procedural Approach

The final action should be accomplished by publishing a broad regulation r

- which would require licensees to provide reasonable assurante that all persons with unescorted access to protected areas, while in those protected areas, are not under the influence of alcohol or other drugs or otherwise unfit for duty.

Commission enforcement of the broadly worded rule should be undertaken using the general guidelines described in paragraph 2 of this Regulatory Analysis.

4. STATUTORY CONSIDERATIONS 4.1 NRC Regulatory Authority

. ~ Authority for this final action is derived from Sections 103, 104 and 161 of the Atomic Energy Act of 1954, and from Section 201 of the Energy Reorganiza-tion Act of 1974.

l.

• A%1 l-

8

• Enclosure "B" u_________--_L__--__-_____--__

4.2 Need for NEPA Statement An environmental impact statement is not required since, under 10 CFR 51.5(d)(3), this final action is not a major action that may significantly affect the quality of the' human environment.-

5. RELATIONSHIP TO OTHER EXISTING OR PROPOSED REGULATIONS OR POLICIES

' ~ The restrictions provided by this final- action are not addressed by exist-r - -ing regulations or policies, nor are they addressed by other' proposed regula-tions or policies. The relationship between'this final rule and the draft proposed change to 10 CFR 73.56 (Access Authorization Rule) under development

'~~~

has been carefully considered. The decis' ion has been made to~ proceed separately with both rulemaking actions and to reconsider combining them after experience has been gained from their implementation. Additio~nally, the staff considered extending the rule to nuclear power plants under construction. It was deter-mined by the staff that these plants should not be included in the rule since they present no potential adverse effect on the public health and safety due to a nuclear sccident. .

6.

SUMMARY

AND CONCLUSIONS An amendment to 10 CFR 50.2 and 50.54 should be pr? pared to require licensees with operating licenses issued under S 50.21(b) or S 50.22 to estab-lish and implement adequate written procedures designed to provide reasonable I assurance that all persons with unescorted access to protected areas, while in i those protected areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty because of mental or physical impairments.

t l

! A % 'T l -

t 9 Enclosure "B" w

ENCLOSURE "C"

. "4 O

e 8

0 l * . #

4

j '

1 i .

. ANALYSIS WITH RESPECT TO PERIODIC SYSTEMATIC REVIEW OF REGULATIONS '

(THI Action Plan Task IV.G.2)

SUBJECT:

Requirement. for licensees to provide reasonable assurance that personnel with unescorted access to protected areas of commercial and industrial facilities licensed under 10 CFR S 50.21(b) or 10 CFR S 50.22 are fit for duty I Criteria for periodic and systematic -

review of regulations NRC compliance

1. The proposed regulation is needed. The need for the proposed rule is discussed in the i

Regulatory Analysis prepared in connection with the rulemaking (Enclosure B). ,

The direct and indirect effects of this rulemaking

2. The direct and indirect effects of the action were considered in the Regulatory Analysis regulation have been adequately considered, prepared in connection with the final rule.

(Enclosure B)

3. Alternative approaches have been considered and Alternative methods for providing restrictions on the the least burdensome of the acceptable . consumption of alcoholic beverages and the use of alternatives has been chosen. drugs by nuclear facility personnel have been con-sidered in the Regulatory Analysis, and the least .

burdensome of the acceptable alternatives has been i Chosen.

i

4. Public comments have been considered and an The proposed rule was issued for public comment.

i adequate response has been prepared. Comments received were considered in developing the i

final rule.

5. The regulation is written in plain English and The final rule has been reviewed and edited for the is understandable to those who must comply specific purpose of, ensuring that the regulation is with it.

clear and can be understood by pe'rsons who are l

required to comply with it.

->- i G' t

-I 1 Enclosure "C"

i

' j i '., ,

SUBJECT:

Requirementforlicenseestoprovidereasonableassurancethhtpersonnel!withunescortedaccessto protected areas of commercial and industrial facilities licensed under 0 CFR S 50.21(b) or 10 CFR S 50.22 are fit for duty I

I Criteria for periodic and systematic review of regulations NRC compliance

6. An estimate has been made of the new reporting The final rule will result in an additional report-burdens or recordkeeping requirements necessary - ing burden on the licensee and the Commission.

. for compliance with the regulation. These recordkeeping requirements have been submitted to the Office of Management and Budget for approval as required by.the Paperwork Reduction Act of 1980.

7. The name, address, and telephone number of a The Federal Register notice promulgating the final knowledgeable agency official is included in rule contains the name, address, and telephone '

]

l the publication. number of a knowledgeable agency official.

A plan for evaluating the regulation efter its The rule will'be reviewed in the second cycle of

8. the Commission's periodic and systematic review issuance has been developed.

process (1986-1991).

i

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-p>

! e - .

-~7 t .

2 Enclosure "C" j

1

ENCLOSURE "D" e

9 A

e e

O e

P e

9 O

80 M h e

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RESOLUTION OF PUBLIC COMMENTS ON PROPOSED ROLE

CHANGES TO 10 CFR 50 PARTS 50.2 AND 50.54 The following paragraphs report resolution of public comments received on

~

the proposed " Fitness for Duty" Rule (Feder'al Register, 47FR33980, August 5,

-1982). The announced comment period expired October 4,1982. A total of 73

-responses were received, 43 by the end of-the announced comment period, and an

.- -additional 30 responses by the Close of Business November 5,1982. All 73

~

responses are included in the analysis. Respondent Control (Docket) Numbers l

(1-73) and associated Identifiers are listed in the attachment at the end of

'- ~ ~' this Enclosure. .

~

Ressondent (Conmenter) Profiles i A total of 73 responses were received on the proposed " Fitness for Duty" f rule. Thirty-six (49%) were received from the utilities; 10 (13%) from utility suppliers (e.g., vendors, contractors, consultants); two (3%) each from unions and legal counsel associated with the nuclear industry; four (6%) from profes-sional socie. ties associated with the nuclear industry; and 19 (26%) from i private citizens. Of this latter group, six identified themselves with the utilities (e.g., trainees, operators, instructors, maintenance personnel), and two did not comme 0t on the proposed rule (i.e., requested extensions to the comment period which were denied). -

Overview of Comments Comments received on the proposed " Fitness for Duty" rule from among 71 usable responses involve 310 comments concerning 16 issues grouped under the 3 following five headings:

1. Overall agreement or disagreement with the proposed rule citing util-ity awareness or non-aware' ness of and action to resolve the fitness for duty issue; 4

kM

^ '

1 Enclosure "0"

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Ia

1

. ~.

m ENCLOSURE "D" 9

O e

A e

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9 e

O e

9

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1 l .

L 1

1 A%7 1 -

en e

a

. i i

RESOLUTION OF PUBLIC COMMENTS ON PROPOSED RULE CHANGES TO 10 CFR 50 PARTS 50.2 A'4D 50.54 The following paragraphs report resolution of public comments received on

^

i

~

the proposed " Fitness for Duty" Rule (Federal Register, 47FR33980, August 5, 1982). The announced comment period expired October 4,1982. A total of 73 l - T ~'-responses were received, 43 by the end of-the announced comment period, and an

~

. r.--additional- 30 responses by the Close of Business November 5,1982. All 73

~

responses are included in the analysis. Respondent Control (Docket) Numbers (1-73) and associated Identifiers are listed in the attachment at the end of

' ~ ~ ~ 'this Enc 1osure. .

Respondent (Cor.menter) Profiles i

, i ,

1]

A total of 73 responses were received on the proposed " Fitness for Duty" rule. Thirty-six (49%) were received from the utilities; 10 (13%) from utility

]

j, suppliers (e.g., vendors, contractors, consultants); two (3%) each from unions j and legal counsel associated with the nuclear industry; four (6%) from profes-sional societies associated with the nuclear industry; and 19 (26%) from

, private citizens. Of this latter group, six identified themselves with the utilities (e.g., trainees, operators, instructors, maintenance personnel), and

, two d[d not comment on the proposed rule (i.e. , requested extensions to the comment period which were denied). -

f i

Overview of Comments Comments received on the proposed " Fitness for Duty" rule from among 71 usable responses involve 310 comments concerning 16 issues grouped under the following five headings:

1. Overall agreement or disagreement with the proposed rule citing util-

! ity awareness or non-aware' ness of and action to resolve the fitness for duty issue; A%1 1 Enclosure "0" i

._. . ._._ . . - - -. -. .~ - _ _ . . . . _ . - - - _ _ _ . ._ -. - - _ . - - . _ . - - . - - - - _

2. Socioeconomic issues which might af fect the utility adversely if the proposed " Fitness.for Duty". Rule becomes law (legal, unica, monetary cost, morale);

3. Implementation issues which should or should not be resolved prior

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~ ~ "~ to issuance of the final rule (e.g. , definition of terms, use of breath testers

~

and other diagnostic techniques, impairment standards);

~ ' ' ' ' - '- - ~4 . Recommended changes in the proposed rule (i.e., inclusion of NRC per-l e -

sonnel, application to protected versus vital areas of the plant, guarantees of effectiveness, recordkeeping); _

~ ~ ~ ~

5. Responses to NRC Commissioners' solicitation of. specific comments (e.g., fitness for duty criteria, use of breath testers, scope of rule, appli-cation to NRC personnel,-blood-alcohol level limits).

Individual Comments And Their Resolution ~

1. Overall Agreement / Disagreement With Proposed Rule i

a. Twenty-nine (41%) of the respondents agree with the need for a " Fit-ness for Duty" rule either without comment or with recommendations for changes 3

in the proposed rule. Included in this group are 11 of 13 private citizens not identified with the nuclear industry, and 14 of 36 utilities responding.

Recommendations are resolved under Paragraph 4 below. (Respondents: 1, 2, 3, 7, 8, 9, 10, 11, 13, 17, 21, 23, 24, 31, 32, 35, 36, 43, 44, 47, 49, 50, 58, 59,60,61,65,72,73)

• Forty-two (59%) of the respondents disagree with the need for a " Fit-

~

b ~.

ness for Duty" Rule. Included in this group are 22 of 36 utilities responding, eight of 10 utility suppliers responding, and six of seven private citizens

. identified with the nuclear industry. (Respondents: 4, 5, 6, 14, 15, 16, 18, 19, 20, 22, 25, 26, 27, 28, 29, 30, 33, 34, 37, 38, 39, 40, 41, 42, 45, 46, ,

i 48, 51, 52, 53, 54, 55, 56, 57, 62, 63, 64, 66, 67, 68, 69, 70)

~

A461 2 Enclosure "0" l

1 (1) Thi of these respondents comment that the rule is not necaed since the utilities alreadv have adequate fitness for duty programs in opera-tion. (Respondents: 4, 5, 6, 13, 16, 19, 22, 25, 26, 27, 28, 29, 30, 34, 38, 39, 42, 51, 54, 55, 56, 57, 62, 63, 64, 66, 67, 68, 69, 70)

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(2) E.ight of these respondents comment that the NRC acknowledges the industry's awareness of the fitness for duty problem and its response to

- it, in NUREG-0903. (Respondents: 16, 28, 29, 33, 37, 48, 64, 70) r- - _ _ . . - _ __

. .- -(3) Thirteen of these respondents comment that the NRC has not estab-

lished sufficient justification (need) for a fitness for duty rule, citing _

NUREG-0903, and suggesting that additional research into the issue of fitness (Respondents: 18', 20,.28,

~ ~ ~

for duty is required prior to a rulemaking action.

30, 41, 48, 51, 53, 62, 64, 66, 68, 69)

(4) Fourteen of these respondents comment that a policy statement from the NRC to the utilities on fitness for duty would be sufficient. (Res-

pondents

6, 18, 28, 33, 41, 42, 45, 49, 53, 56, 64, 67, 68, 70) 3 (5) Fourteen of these respondents comment that a fitness for duty rule, if issued, should be part of the proposed " Access Authorization" Rule (10 CFR S 73.56). (Respondents: 4, 5, 28, 33, 38, 39, 40, 41, 42, 45, 48, J

52,63,69)

RESOLUTION: The NRC staff recognizes alcohol and drug abuse to be a social, medical and safety problem of epidemic proportions, aff u hp people in almost every industry and occupational group. For example, the 1. ional Institute on Alcohol Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports -that 46% of all non-fatal and 40% of all fatal U.S. indus-

trial accidents involve alcohol, at an annual cost of $12-15 billion. Given i

the pervasiveness of the problem in our society, it seems reasonable to assume 4

that alcohol and drug abuse, as well as other emotional and psychological factors, are also prevale.nt in the nuclear industry. Prudence, therefore, requires that

{ appropriate precautionary ~ measures be imposed to reduce the probability of a person under the influence of alcohol, drugs, or otherwise unfit for duty NY 3 Enclosure "D"

either causing an accident or decreasing the effectiveness of the response to

, an accident.

Alcohol and drug abusers' job performance can be expected to be negatively affected due to the presence of, or withdrawa1 from, chemicals in their blood stream. For example, 4 ounces of alcohol in_the blood stream of a 165 pound male requires approximately 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> to metabolize. This is one reason other regulatory agencies (e.g. , U.S. Department of Transportation) manSate specific

~

periods of abstinence (e.g. , 4 or 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />) for interstate truck drivers, commercial airline pilots, etc., prior to coming on duty. Drugs other than alcohol such as cocaine and hashish require as much as 24-72 hours to metabolize.

Additional information concerning the economic impact of alcohol and drug abuse

. _ , . _ on absenteeism and job performance is presented on page 7 of this enclosure.

A recent Tennessee Valley Authority (TVA) 1979_ Report on its Alcohol and l Drug Dependency Program states that the program served 350 employees during that year (one out of every 143). TVA estimates that its annual cost due to alcohol abuse alone is approximately $18.5 million. An NRC Alcohol anc Dru P Dependency Program official estimates that the Commission program serves about #

one of every 100 ecployees annually. The annual cost of al'cohol abuse alone to the NRC based on the TVA cost formula, is estimated to be approximately

$1.85 million. As recently as mid-1981 approximately one-third of Edison #

Electric Institute (EEI) member companies operating nuclear stations had no programs to deal with this issue. 1iore recently, NRC Inspection ano Enforce-ment (IE) Information Notice No. 82.05, " Increasing Frequency of Drug-Related

~

Incidents," reports a steadily increasing number of drug-related arrests and terminations being reported by the nuclear industry since 1978. The NRC staff l.

has determined therefore, that a regulation with the authority of law is required for licensees to establish written procedures to provide reasonable assurance that all persons with unescorted access to protected plant areas are

! not under the influence of alcohol, other drugs, or otherwise unfit for duty.

4 NUREG-0903, " Survey of Industry and Government Programs to Combat Drug and Alcohol Abuse," is cited by seven of the respondents as evidence that the utilities are aware of the fitness for duty problem and are taking appropriate A4R 4 Enclosure "0" G ~

. . I and adequate remedial action. HUREG-0903, in f act, contains data on 10 of

, 75 licensees, one of which admitted not having any written policy for hantiling potential fitness for duty offendors. The information contained in the NUREG on the remainder of the licensees surveyed suggests that no consistent policy for dealing with the day-to-day fitness for duty problem exists. Most utility programs reported on appear to be punitive rather than rehabilitative, and appear to focus primarily on screening new employees rather than the day-to-day

, . behavior of the nuclear power station work force.

..- -NUREG-0903 is cited by 13 respondents, stating that the NRC has not estab-lished sufficient justification for a fitness for duty rule. The NRC recognizes alcohol and drug abuse to be a social, medical, and safety problem affecting

~ ~ ~

people in almost every industry and occupational group. For example,'46% of

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all non-fatal and 40% of all fatal U.S. industrial accidents involve alcohol, at an annual cost 'of $12-15 billion. Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcohol and drug abuse, as well

as other emotional and psychological factors, are also prevalent in the nuclear industry. Prudence, therefore, requires that appropriate precautionary measures be imposed to reduce the probability of a person under the , influence of alcohol, '

i drugs, or otherwise unfit for duty either causing an accident or decreasing the i effectiveness of the response to an accident.

Alternatives to the " Fitness for Duty" rule cited by respondents include a i policy statement and/or combining the rule with the draft proposed 10 CFR 73.56

" Access Authorization" rule. Consideration was given by the HRC staf f to incor-porating the provisions of the " Fitness for Duty" rule into the behavioral observation program portion of the draf t proposed " Access Authorization" rule.

It was decided not to do this because broadening the scope of the proposed

" Access Authorization" rule would complicate and delay this " Fitness for Duty"

~

rul(. The Ugartance of establis'hing a regulation which addresses the specific issue of fitness for duty necessitates proceeding independently with the present rule. After some experience has been gained through the implementation i of both the " Fitness for Duty" rule and the draf t proposed " Access Authoriza-tion" rule (e.g., 2-3 years), consideration will be given to combining them.

Issuing a policy statement, as a alternative to a regulation, was considered by 2

i .

A%1 5 Enclosure "D" ,

= . -_, .= ._. . . - -----.-_- --_ .

f the NRC staff as part of the Regulatory Analysis. The procedural approach selec.ted was e broad rule since it would provice considerable latitude to the licensee while at the same time providing a regulatory basis for enforcement.

j- -

In summary, the NRC staff has determined that sufficient evidence exists l E concerning fitness for duty to issue a broad regulation which: (1) has the full force and authority of law, (2) provides a basis for future ' regulatory

' actions and policy stateinents, and (3) allows each licensee to develop written

~

l . --- - ..

i procedures which take into consideration not only fairness to, and due process

7 o7 its employees, but also any condition or circumstance unique to its facility.

1

2. Socioeconomic Impact of Rule

a. Twenty respondents comment that developing and implementing written j procedures as called for in the rule would cause legal and union related liabil-g ities to the licensee. (Respondents: 5, 15, 17, 19, 22, 23, 25, 26, 28, 29, j 33, 34, 42, 44, 58, 59, 64, 68, 70, 72) i RESOLUTION: The NRC staff recognizes that written procedures for imple-menting the " Fitness for Duty" rule will raise sundry personal rights and i union related issues. It is expected, however, that appropriate reviews and coordination of written procedures will be undertaken by the licensee with its 4

legal counsel and union representatives prior to implerenting its procedures.

i l Legal and/or union issues related to fitness for duty programs are being dealt with successfully in other industries (e.g., civilian aviation, aer~ospace, electronics).

j .

b. Eleven respondents comment that developing and implementing written procedures called for in the " Fitness for Duty" Rule will cause substantial dollar costs to the licensee. (Respondents: 16, 23, 25, 33, 44, 46, 48, 53,  ;

j 55,58,64) 1 RESOLUTION: The NRC staff recognizes that developing written procedures l

l in response to the rule will involve dollar costs. The NRC estimates that i

i individual licensee burden to develop written procedures required by the rule l.

hW l*

6 Enclosure "D"

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J

i

8 will be approxicately 1200 can-hours over a nine month period if no fitness for duty program currently exists,at the licensco's facility. Using an hourly rate of $80, the cost per licensee to develop written procedures specified in this rule will be approximately $96,000 (1200 hours0.0139 days <br />0.333 hours <br />0.00198 weeks <br />4.566e-4 months <br /> x $80). Since the rule is broadly stated giving the-licensee considerable latitude in developing and

! ,- -- managing his pro.cedures, only a general annu~al cost statement can be given

~

here. If the licensee appoints / contracts a full-time program manager, his

. annual cost will be approximately $50-60 thousand. Included in this estimate

- are manager salary, office space, procedures reviews, recordkeeping and proc-i ... - essing of clients. Costs associated with such things as rehabilitation are normally the responsibility of the employee. This is the practice among non-military government agencies and private industry. The above cost estimates

"'-' were derived from contacts with fitness for duty program personnel from private industry and non military government agencies. Included among these is the 14RC ,

1 Alechol and Drug Dependency Program which serves headquarters and regional

] offices. However, the ItRC staff is also aware thtt several of the utilities currently have some manner of program in place (reference llVREG-0903), there-fore, minimizing their costs in shaping current programs to meet " Fitness for Duty" rule requirements. Secondly, employee observation / assistance programs in other industries claim, almost unanimously, to save dollar costs in the long-l term. While utilities such as TVA which claims that alcohol abuse alone costs 1

it approximately $18.5 million annually -- fitness for duty programs of the type envisioned by the " Fitness for Duty" rule are expected to save dollar costs through quicker identification of employees not fit for duty, and through assisting these individuals, in whom considerable resources have been invested, i so that they might return to high levels of productivity. Absenteeism due to alcohol-drugs costs U.S. industry an average of $300 annually for every worker nationwide. Alcohol-drug abusers lose an additional 25% of their productive time when on the job at an average annual cost to U.S. industry of approximately l ,

j $2,900 per alcohol-drug abuser. The total cost to U.S. industry annually is between $12 and 15 billion. With regard to fitness for duty programs, i Wrich 1980,1 reports that U.S. industry benefits 10 dollars in decreased 1

l 2Wrich, J.T., The Employee Assistance Program; updated for the 1980's. City Center, Minnesota: Hazelden Publishing Co., 1980.

A4A 7 . Enclosure "0"

absenteeism and accidents, and increased productivity for every dollar it

pends en Ifitness for 'doth

c. Fifteen respondents comment that the " Fitness for Duty" rule will

, hav'e a deleterious *effect on nucicar poser plant employee morale. (Respondents:

14, 18, 26, 27, 28, 30, 38, 42, 46, 48,,51, 55, 61, 64, 73). '

_ . . _ ,. -- RESOLUTION: The NRC staff has found no documented evidence from experiences with fitness for duty programs in other industries (e.g., civilian aviation, aerospace, electronics) which indicate t!st employee morale has been affected negatively. On the contrary, such programs tand to enhance morale since the

. _ _ _ parent company is perceived as being interested and supportive of employees in solving their personal problems. -

i

3. "FitnessforDuty"RuleIdlementationFactor's

a. Nineteen respondents ccm. tent that. criteria (operational definitions) are needed.for terms such as " fitness for duty". (Respondents: 6, 11, 14, 17, 28, 29, 34, 36, 42, 44, 45, 47, 52, 53, 54, 55, 60, 62,' 69)

Three respondents comment that such terms as " fitness for duty" should be defined by the utility as part of its written procedure. (Respondents: 43, 48, 55) '

b. Twenty-seven respondents comment that instruments such as breath testers shocid not be psed to monitor employee fitness fpr duty. (Respondents:

6, 19, 22, 23, 25, 26, 29, 30, 32, 33, 34, 39, 44, 46, 47,-48, 50, 51, 55, 57,

. 58, 60, 61, 62, 70, 72, 73)

Four respondents comment that instruments such as' breath testers g ould be used to monitor employee fitness for duty. (Resp,ondents: 2,~ 7, 11,

45) * '

4 c

~ ^

A40

, ./

8 . Enclosure "D" 3  ?-

4

, c. Four respondents comment that specific blood alcohol limits should j not be established as pW L uf the " Fitness for Duty" Rule.~ (Respondents: 47, j 48, 60, 64) i i

One respondent (#45) comments that.a specific blood alcohol level 4 ' limit should be established but does not suggest a level. '

i .

i . . RESOLUTION: The rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and techniques for determining

fitness for duty (e.g., breath testers, psychological tests) taking into con-i sideration circumstances unique to its facility. However, in order to facil-4

. . , _ _ itate enforcement of the rule, written procedures will be expected to. respond to the following nominal guidelines: (1) a statement 'of responsibilities of f- program coordinator, managers, supervisors, and employees who come into contact with persons with unescorted access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting l individuals who meet the criteria for alcohol / drug abuse or emotional instabil-ity; (4) an adeinistrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) educational

] materials for all personnel and management to acquaint them with the licensee's i fitness for duty procedures. Additionally, an industry task force staffed by i

rcpresentatives from the Institute of Nuclear Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

4. Recommended Chances in " Fitness for Outy" Rule Content i

The " Fitness for Duty" rule published in the Federal Register for public comment on August 5, 1982 states: "Each licensee with an operating license issued under 10 CFR 50.21(b) or 50.22 shall establish, document and implement adequate written procedures designed to ensure that, while on duty, its and j its contractor's personnel with unescorted access to protected areas are not j (1) under the influence of alcohol, (2) using any drugs that affect their t

j faculties in any way contrary to safety, or (3) otherwise unfit for duty l

J l~ .

A4M i

9 Enclosure "0" l _ .- _

because of mental or temporary physical impairments that could affcct their performance in any way contrary to safety. Each licensee shall maintain the written records of these procedures for the life of the plant."

f

a. Twenty-nine respondents comment that the word ensure denotes guarantee and that no known program or technique is capable of guaranteeing,100% effective-

. ness in detecting and diagnosing unfitness for duty. These respondeats recom-

. -- s. mend that the word ensure be replaced by the.words provide reasonable assurance. _

, _ (Respondents: 13, 14, 21, 28, 29, 31, 33, 36, 37, 38, 40, 41, 42, 47, 48, 49, 50, 53, 54, 56, 58, 59, 60, 61, 64, 65, 66, 67, 69)

b. Thirty-three respondents comment that the rule, currently directed i at the licensee's and its contractors' personnel, should be extended to all

^

persons with unescorted access, including NRC personnel. (Respondents: 5, 6, 13, 14, 21, 25, 26, 27, 29, 31, 33, 35, 36, 40, 42, 44, 45, 46, 47, 48, 50, 51, 53, 57, 58, 59, 60, 61, 63, 64, 65.. 66, 73) 9 Two respondents comment that NRC personnel should not,be included. These J

latter respondents state that the NRC should be made responsible for its own employees; that the utilities should not be put in the position of policing regulators. (Respondents: 41,67)

c. Teu respondents comment that the rule should pertain only tO vita _1 areas of the plant rather than protected areas as now stated-, citin,g the former only as being crucial to the public safety. (Respondents: 13, 21, 22, 28, 31, 33, 35, 42, 55, 64) ,

Five respondents comment that the current wording of the rule pertaining to protected areas'should be retained, citing that access to protected areas includes access to vital areas. (Respondents: 45, 47, 48, 59, 60)

d. Thirteen respondents comment that written records should not be main-

~ tained for the life of the plant, but they should be kept for a reasonable period (e.g., two years) after they are promulgated. (Respondents: 6, 31, 33, 41, 47, 48, 50, 53, 56, 60, 64, 65, 66)

- hkB 10 Enclosure "D"

l I

l

e. Five respondents comment that the rule should be stated broadly to allow licensees to establish fitness for duty pivgroies (iritten procedures) f consistent with their own needs and sensitive to unique circumstances as may l exist at their own facility. (Respondents: 47, 48, 59, 60, 65)

One respondent (#64) comments that the rule should be more specific con-cerning conditions of fitness and processing of persons determine'd to be unfit for duty.

~

' '~ ~~lESOL'UTION: The NRC staff concurs in Comments a, b and e involving "rea-sonable assurance," application of the rule to "all personnel" and " broadly  !

l ___

stated" rule respectively. These changes have been incorporated into the final rule. The word " ensure" was changed to the term " provide reasonable assurance" since no written procedure can be expected to be 100% effective all the time. The rule was extended to all persons, including NRC personnel, since the licensee is ultimately responsible for the behavior of all persons with unescorted access to protected areas of its facility, and the NRC has no way of guaranteeing that its personnel resident at nuclear power plants, or visiting those plants, will always be fit for duty. Licensees would be expected to i limit their implementation of the rule with HRC personnel to those procedures they exercise for their own employees arriving for duty or while on duty. In the event that a licensee questions the fitness for duty of an HRC employee, the licensee will be expected to contact an appropriate NRC office or official for guidance. The licensee would not be expected to process NRC personnel

~

through fitness for duty actions, punitive or nonpunitive, established for licensee personnel. The rule is broadly worded in keeping with the Commission's belief that each licensee should establish criteria for fitness for duty and implementation methods (e.g., breath testers, psychological tests) taking into i - consideration circumstances unique to its facility. .

1 The NRC staff takes exception to Comment c which involves application of the rule to vital areas of the plant rather than the broader protected areas.

The NRC staff maintains, as do five of the respondents, that the " Fitness for Duty" rule should apply to unescorted access to protected areas. Selective application of the rule to only persons with unescorted access to vital areas would be impractical, since impicmentation of the rule will occur at the AW1 11 Enclosure "0" .

+- - - , . - - - _ .- . -. - _ - . - . . - - ,

l.

cr. trance to and in the protected areas of the plant. Additionaliy, there is no way of guaranteeing.that persons with unescorted access to proter.tod areas ,

will not penetrate vital areas through assistance or coercion of persons with I unescorted access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs. Therefore, the word protected is retained in the final rule.

Comment d involves maintenance for the life of the plant of records of

~ ~~ written procedures developed to respond to the " Fitness for Duty" rule. The m equirement that records of the written procedures be kept for the life of the plant has been eliminated since paragraph (1) of the rule already requires that the licensco's procedures be in written form.

i '

.- ^

f. Presented below is the proposed rule submitted for public comment on August 5, 1982. Seperimposed on the proposed rule'are changes resulting from ,

resolution of public comments. Changes were also made in the proposed rule, from NRC staff deliberations, as follows." The word " document" in paragraph (x)(1) was deleted as being redundant with the word " written." The word "other" in parcgraph (x)(1)(ii) was added to recognize the fact that alcohol is also a drug. The word "could" in paragraph (x)(1)(ii) was added to recognize the fact q that a wide variety of substances (i.e., controlled, noncontrolled, illegal) may or may not render particular individuals fit or not fit for duty. Additionally, the word " temporary" in paragraph (x)(1)(iii) was eliminated as not beir,g meaningful. Mental and physical impairments, whether twporsry or permanent, may or may not preclude a person from being fit for duty. -

(x)(1) Each licensee with an operating license issued under 10 CFR S 50.21(b) or S 50.22 shall establish [ document] and implement adequate writ. ten procedures designed to [ensore-that--whiie-on-duty--the-licensee2 s and-its-con-tracters personne))

i provide reasonable assurance that all persons with unescorted access to protected areas, while in those protected areas, are not:

(i) Under the influence of alcohol; l

12 -

Enclosure "D"

(ii) [Using] Under the influence of any other drugs that could affect their faculties in any way contrary to safety; or -

(iii) Otherwise unfit for duty because of mental or [ temporary] physical impairments that could affect their performance in any way contrary to safety.

~

. (2) [The-written records-of-these procedures-wiii-be-main'tained-for-the life-of-the pientr]

.~._.,m. , ,,

4 " ' ' ~ ~5." Specific Responses to Commissioners' Questions The following questions were posed specifically by the Commissioners in soliciting public comment on the " Fitness for Duty" rule. Although each of

. these questions have been dealt with earlier in this Enclosure, they are restated here for Commissioner review.

1

a. Should the Commission establish ' specific fitness criteria? Nineteen respondents conment that the Commission should establish specific fitness crite-

- ria. Three respondents comment that such criteria should be established by each licensee as part of its written procedures. The NRC staff concurs in this latter position since it believes that a broadly worded rule is in the

, best interests of government and industry.

b. Should specific methods be established by the NRC for implementation of the " Fitness for Duty" rule, including the use of breath tests,' background investigations, psychological tests, behavioral observation programs, employee awareness programs, employee assistance programs, and other possible implementa-

, tion measures? Twenty-seven respondents comment specifically that breath tests

~

l . should not be used. Regarding observation and assistance programs, almost all I

36 utilities responding to the rule notice claim to have some form of observa-l tion and/or assistance program in operation. Other measures (e.g.,' psycho-l l logical tests, other implementation measures) are not commented on specifically within the context of the " Fitness for Duty" rule.

i d4@

13 Enclosure "D"

The rule is broadly worded in keeping with the belief that each licensec should establish specific prcctdures and techniques for determining fitness for duty (e.g., breath testers, psychological tests) tahing into consideration circumstances unique to its facility. However, in order to facilitate enforce-

~

, mentoftherule,theSupplementaryInformat{onfortherulespecifiesthat written procedures will.be expected to respond to the following nominal guide-lines: (1) a statemen't of responsibilities of program coordina'toi, managers,

~ supervisors, and employees who come into contact with persons with unescorted

~ access to protected areas; (2) an observat.io'n procedure; (3) a procedure

'~ 7 diagnosis', referral, return to duty) for assisting individuals who meet the criteria for alcohol / drug abuse or emotional instability; (4) an administrative

. procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) educational materials for all personnel and management to acquaint them with the licensee's fitness for duty procedures.

Additionally, an industry task force staffed by representatives from the Institute of Nuclear Power Operations (INPO), Edison Electric Institute (EEI) and the utilities, is developing a set ofTtandard guidelines for licensees to use in responding to this rule.

c. Should the " Fitness for Duty" rule be limited in scope to personnel with unescorted access to vital as opposed to protected areas as defined in

, 10 CFR S 73.2? Ten respondents comment that the rule should be restricted to vital areas; five comment that it should include protected areas. The NRC staff believes that the rule should include all protected areas. Selective application of the rule to only persons with access to the more res'tricted vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital areas through assistance from or coercion of persons with unescorted access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs.

. d. pould the " Fitness for Duty" rule apply to NRC oersonnel? Thirtv-_

three respondents comment that it should:_ two comment that it should not. The

^

k%7 14 Enclosure "D"

Y revised rule (Enclosure "A"and annotated in paragraph 4.f of this enclosure) has been expended to includc all persons, including NRC Personnel, with unescorted access to protected areas of the plant. The primary reason for this change is the utility's ultimate responsibility for the behavior of all persons

~

, withunescortedaccesstoitsplant,andthe(NRChasnogoodwayofguaranteeing that its personnel resident at nuclear power plants, or visiting those plants,

. will always be fit for duty. Licensees will be expected to lim'it'their imple-

' trantation of the rule with regard to NRC personnel to those procedures they

~

--- t .

__ exercise with their own employees arriving 'for duty or while on duty. Licensees g

'~~~~will be expected [emoMRC personnel not fit for duty from protected areas [

o.f the plant and n W y an appropriate NRC office or official. The licensee

'will not be expected to process NRC personnel through fitness for duty actions, punitive or non punitive, established for licensee personnel.

J

e. Should there be specific blood alcohol level limits? Three respond-ents co.T.nent that there should not be specific blood alcohol levels estab-lished; one respondent comments that there'should be levels established (no specific level recer.aended). The NRC staff currently believes that specifica-

- tion of criteria for unfitness for duty (e.g. , blood alcohdl levei) should be left to the discretion of the licensee.

e e

O 15 Enclosure "D"

RESPONDENTS TO FEDERAL REGISTER NOTICE ON " FITNESS FOR DUTY" RULE Respondent number Respondent identifier .,

-1 Private citizen

~~~- '- 2 Private citizen j --

3 Private citizen 4 Numanco, Inc.  :

5 International Brotherhood of Electrical Workers 6 Nuclear Consuiting services ,

7- Private citizen 8 Private citizen 9 Private citizen 10 P3ivatecitizen 11 Private citizen -

12 Private citizen 13 Sacramento Municipal Utility District 14 Private citizen 15 Private citizen 16 Private citizen 17 Oil, Chemical and Atomic Power Workers International 18 Private citizen 19 Private citizen

. . 20 Private citizen 21 Niagara Mohawk Power Corporation 22 Washington Public Power Supply _

Company 23 Private citizen 24 Private citizen 25- Private citizen kkO

~

- 1 Attachment to Enclosure "D" t- ,

w Respondent number Re:;pondent idcntifier 26 American Nuclear Society Standards Committee 27 s Baltimore Gas and Electric -

~ ~

~; 28 -

Arizona Public Service Company 29 Northeast Utilities Service Company r_ 30 Duke Power Company

',,______,___.. 31 Wisconsin Public Service Corporation

. 32 Bensinger, Dupont & Associates

~ ' ~ ~

33 Florida Power and Light Company .

34 Boston Edison Company 35- Detroit Edison -

36 Illinois Power Company i 37 Kansas Gas and Electric Company 38 Portland General Electric

. Company 39 Behaviordyne Psychological Corporation 40 KMC, Incorporated i

41 Edison Electric Institute 42 Consolidated Edison Company of New York, Inc.

I 43 Washington Legal Foundation i 44 Consumer Power Company 45 Stone & Webster Engineering Corporation

> 46 Houston Light and Power Company Mississippi Power and Light 47 Company 48 Debevoise & Liberman 49 Commonwealth Edison 50 Rochester Gas and Electric Corporation 51 Pacific Gas and Electric Company

l. A4UT i

~

i 2 Attachment to Enclosure "D" u -

Respondent number Responcent identifier 52 Nuclear Fuel Services, Inc.

53 Florida Power Corporation

'~

54 Ca'rolina Power & Light Company 55 Bechtel Power Corporation

. 56 Public Service Company of'

. . Colorado

- ; r?m-57 Pennsylvania Power & Light Company 58 Yankee Atomic Electric Company 59 General Public Utilities Nuclear Corporation 60 Texas Utilities Generating Company Cleveland Electric Illuminating 61 Company 62 Gulf States Utilities Company 63 Vltginia Electric and Pcwer Company J 64 Public S'rvice e Indiana 65 Northern States Power Ccepany 66 South Carolina Electric & Gas Company I

67 Georgia Power Company 68 Professional Reactor Operator Society 69 Long Island Lighting Company 70 Atomic Industrial Forum, Inc.

71 Private citizen 72 Theophilus,'Inc.

~ ~

73 Union Electric Company 7

kdC 3 Attachment to Enclosure "D"

• ENCLOSURE "E" o

e e

e 9

e e e.

O 8

D

~

4461 L3

9N Teder:I Rester / Vol. C. No.151 / *.hdav. Aurust 5. Z2 / P-- cu ad t'.utes revision of 6e s:e: T.cd percentges Reculatery Cc .raissinn. Washine:es, access to the ;roteced a es cf the purs= ant to 31030.7(bX5):

D.C. 00 55. Tc!c; hone (3 1) 4.t3-3!ni. lictesed fechty are not unT. ict deiy.

At this tirn . estab!ishcent ei specific

(

et. tr :.n t?rrany inrenun.cre ns c-iteria to be used to determine 5: ness

' ps o u ar,.es o c .s 1 - - Ccmmission 'ens found that the number ew.2 coot uooas - . cf repcrted d eg.rclated ine dents in {ct duty and specm: methods of

~"

which1!:=see or centractor c= ploy ees CP'e==ntatica,c! 6:s re3uisement han

. . were arrested c- t :=insted has been c212 6e ace: set. 4 se Nt[ CLEAR REGULATCRY - Increased substantially over the past

• Co==issiop sol!=ts public co= ment en three years. b is79 there was *cne such D) Ge utaclishm,ent of specmc 52ess i

' CCt.'fAISSION a reported bcident. is 1900 there were 3!*ri".(nch as tne Fede al An den

!!ve, and 61501 there were twelve. Adnut:suntion's regdations regar6,ng

'10 CFR Part 50 .

- c rw me=bers elcp aima!t m u CFR nese incidents have involved bos PersonnelWith' Unescorted A'ce:s c to o ite use crpessession of dn:;s and 91.11(a)) fx nudearylant penonnel W, Prote:ted Areas; Fitness for Duty penonsd repertins; to werk under the spe=5c mc6ocs the niness for Dutyofiscie.

2,mpementau,on Induding t o}e 2nnu .

Cc * *. ".'.

acifev: N. udear Regulatory hhn,ence of cc:troted junca has wastences.

bees the most

' reported controlled substance involved frequently use cf bresth tests, bac3 ground bu.esSgab.

ens. ps#clep.can e sts.

anual obsma des proprams.

AC"CNIII*E***d"I*' b. these incide.ntr.however, incident.s endoyee awareners prog-ams. e s.russany: ne Ccmmission ir proposing arve M.:g empacte .

,. beshis paro:je.~yes, coca: e. - ,=[qcyee to e=end its regdaticas to require .

r:ethaqualone have ne. anc also been reported.

c er possibleassistnr.ce imple=entaticsprc;rar:s. end ce=cercial and industrial fa cilities , =easures: and (3) limiting the : cope of

-li:e : sed under 10 CFR 50.0 (pri=tanly * ' . As a resdt of theseincidents, the NRC the rde to perse:nel with unese:rted rudear power phnt beensees) to - 05ce of Espectics and F.n:c cement Teess to vital arcas (gene ally, a

, establish and !=ple=ent centrots , (II) has established a Drug Abuse Task rote::ed area is eny area encemeassed

- designed to assure that penc=el with Fo ce te develop a generi: approac: to by physical barriers and to which'ae:ess unescerted ac:ess to p ctected areas are the problem of possible crug (includ.i .g is c:::: 11ed, while a vital area is a:y nrt under the b!!ue:ce of crugs er albohc!) abuse by licensee or contract:r e.rea that cc:tains vi:al equipment.

cicohol cr c6erw:se n=t fer duty.ne perscnnel.121s develeping a NUREG ness te =s are speci!Ically defined in prcpesed rde was developed be:s:se cf report wn:ca describes current practice 10 CFR 74 a cencern that certain perse=el ec,u.d re;ardia; the abuse of d. .:gs and elechol ne Co=-essics wants to a!. low each become unfit .:t c:t1 dce to the e::ects, , by other regdatery c ganizatices a c by of substances su:h as a,!c=ol er crups bdtstr/.ne N1 RIC repert. c titled lixsu b dns -[rc:adures which

e:d. thereby, ceu'd per.:rm sc*: ens inst " Survey cf beast f and Cove tale !:t.o censiderb.

cs.*:st en!y fr.imess

ght adverse)y 3 Pre; rams to Cembat DrugAlconel ens.r==en.t b

• cup $. .eu ..f. 2.s empoy.,es.

and safety of tre pu ppa:t

.ic.ne resulttscf3ca..k the end Abuse. sheuld p ove user,ul to licensees g bd d a a: cc:di:Icas er

• proposed rule wodd be the -

when they develep the fitness for duty (~,.,7c,,], J sed d. --seme is b e oaits facility'dly imp!e=entttics c! fitness for duty p: rg ams that wedd be required by the (.",ded.Ece CE:EssicIbsites oublic preg a=s :: :s: y. wide th:t wou.L,. be preposed rde. , - ,, . c:==ent en the level ci specifici6 that designed to prnide g eater assuran:e c. ne prepesed rule wedd apply to'the gega s.

s sfer a .d rnere recable cperataon of ' ed in e --- as ed rd ' ~

1;censees emp;o.fres and centracter Cc- - E=64 Je5d-8haErhes:ed nud-ar facm*Jes. pe :c:nelwit:unese:~ed ac css to e= u ,e.,.3 e3 whe2er'ne rule shedd Dr.its:Cc==ent peried expires 0:!:bcr pt:::cted arezs ef freilities issued a'.so a ply to NRC :e se=el and c=

4.1ga2.Cc==ents received cf:er this operatin;1 ice:ses under to CFR 5321(bd wheder there shedid be specific b! cod date will be considered ifit is prat:ical er10 CTR so.=.nis catege:y cf alcohollevelli=its. ~

to do so, but assurance of consideration perse=cl was chesen because any

'ca:nct be gives except ap to ec==ents person wi:h usesecried ac:es s to a - Papenverk Reductics Act

~

received en er before this date. protected area may have the oppertunity g3 7eq g.ed by Pub.1.95-511. this Aomacssts- Submit written comments to affect adversely the health and safety proposed rule has been sub=l::rd to t'he end suggestions en the preposal and/or c(the public through an unobserved act. 05ce cf Mana;e=e=t and Budget fcr the supporting value/irnpact analysis to whether intentien:1 or ina dvertent. It dearance of its inictmation collection the Secretary of the Commission. UA does not indude NRC persensel. reqdre=ents.

Nedear Regulatcry Co==ission. Persons wedd be considered unfit fer .

duty if their fa:dties were afietted in a Regulatory Flen.bn ty Act Cortifiestion Washington, D.C. a,555. Attentien:.

Docketing and Service Branch. Single way contrary to safety by substances Based upon the infer =stien avaibble copies of the value/irnpact analysis may such a's alcobol cr drugs. Additionally. a t this stage of the rder:aking be obtained en request f.om the contact the phrase ** *

• cr othenvise unSt fer proceeding und in a::::rdance ui:h the person listed below. Copies of duty * * '"is 6te:ded to require

• Regulatery Flexibill:y Act of 193" 5 ccm=ents received en the preposed cc=sidera:Ic= cf the effects of other U.S.C. Sc5(b). the C:mmission hereby c=endment and the valce/ impact facters when dete=.ining as cert!Iles that,if pre =ulgated this rde analysts may be esamined and copied Individuars Etness for duty such as vi!! not have a si;:ificant ecenor-ic ,

Er a-fee in the Co==issien s Public fatigue. stress. iilness, and temporary  != pact en a subs:an'ialnumbrr of mall Docurnent Roc = at 1717 H Street NW physicali=pairments. entities.nis prcpered rule affects Wa shington. D.C. between 8:15 a m. and ne prneesed rule would require ~ personnel with unescerted ac:ess to SfJO p.c'. commercist and industrial facilities protected cr:as cifacihties licensed rca rVRTHER INForh ATioN CDNTACT: - licensed ender 10 CFR 502: to establish, under the provisions of to CFR 510 for EI'is W. Merschoff. Office cf Nuclear do:.unent, and implement pro:edures to which an opern:ing license ha s been Regdatory Research. U.S. Nudear assure that personnel with unescorted granted.nc co:npanies that own these 4b 3

.. s Y::cr.d. as-i s; u i V r.s. 4:. Nc. %1 l 'e';;=.zicy !.::~;:t 3 Y .: l I':c eni I.ics

• ' ~ .~. ;

f.iciht:cs do r.ct f.Il mihin tb cope cf 3. A rew pr.rr- ,- h (s)is added to hem m. CiCl Ac:rnwies P:4-1 P

,. s .:ll enbrir ** act forth in the 8 50.54 Io read aa !c' low:: Ce .nedic:.t As crue. NM. W.* s.E. ;'er.

f Ec;-44:c..s F'.ex:P.tl y Act c: the smaD - D.C as seca es thry are trernec.  !

basir.e:s sac s andsrds set e t in I5258 C*" *'.8 "

• C- f * * **-

rep?at;cas isse.ed by the Srnch Businesa

• * * * * - FCR min NC4uAm CNAC '

~ Acc inistianca i: 13 CTR Part 122. N!))Each lice:uee with an cre stLw Richard M. lur.h:in. Ch:ct. cr Fair.ca L J Whi: !!it rec :7.::ed thct the . beense issued under { !22*.'c) cr i 13.:2' D:E'.oy. Assis!L:t Chief. F.egictcry ,

centra eters reev fell within the scox of sh&M estabbsh. docu:nen'. and Al'ars Diviticn.Detrau ofInternstiane.]

smsU entitiet. II hc s been determin'ed i=picment edeccate wnt:en pre:edur.a Aviatica (*2.0-C 3 *CSI. Oval that de i rpact en those cer: tractors due desi:ned to ensu;e $at. while en duty. Ac onautics Lcari u25 Cont.evicut to de im;!:mentatica of this rtde does the licer.see's and its centracters. . Avenue N.W. Washington. D C 01:3.

not t=ect the threshc!d of a sit nificant personnel mth teesc:Med a: . css to :UPPL.IM ENT A P Y IN FOR8 t ATao*C

~

ecenc:nic i: : pact. However, if any pretceted areas cre set-inde;endent contr re:or who serviece (i) Under the irJiuence of a!cche!: Background .

nuden power phnis er co:nooncnts . (U) Using any dr.:;s dat afieet th on ye,4, .g32, g:e Covern=c:ts cf believes there wedd be cir uficaet ~ lile2 in any way cont:ary to s:,ea ety; - the United States end Japan conchded a

- econe=ic i:npsct. the contrac*cr sneuld CT provisicnal. inter'.rn agret:sent dat kr (iii) 08e.rwise c:. t for du'y teese*

c ==ent en this to the Cetnmicsion.

of mental er te.mnert.rv physical the.first 1 =e p evid:s U.S. der.:; a.ted

- . __- I.Jst of Subjects is 2: CFR Part "3 .

• n.,. n ngesgnated a:.r carners v.-e the

. i= a.dments thr.i ecd'd e.4ect 'M

.~ - - Anti

• rust. Cass. dweinfer =2t2==. Fire . pen:.=ance m any away cc::tra.y to nn. ,t to cperate., g ung, charter serv:ces in 1:

cn.y,.a.yg, preventics. Inte:- overn rental rdations, s a fe ty. . . . - ;. , . ... g-v .y3p m,. .

~g' g .

I- ;-["

~ --! b Nuclear power p!c:ts end reacton. , . - (2) Each !!:ensee shaU =ainta!m de Petahy. Radiatic:3 pr:tectica. Reder - wnttenrecords of Otse p oceceres fer

1. t. Ia 'e g., yi.'dg'a. re' ~' ",~-cfe)y b esin$a ed in sitic; c=teria. Repc:*.=g regnirr.- mts. . . .the life cf the plant.-

i pc.,,.cr une c:c;ters in Japan :na:. sets.

~

P ART SS--DOf.tESTIC LICENS:NG OF Dated .

amas%s. CC Ws =G dsy of

• and the desig .ated schedded ca. e s .

FRODUCTION AND UTIL12.AT10N

. . aUowed to ao puticipate were required -

- FACILITIES Ter de Nuclear Regulatery Cc==Jrsics. to adhere to the rnere st:in;ent John C Ha3ta. -

charte:wc:thiness rules cf Jap :.

. For &e reasons set cut in the . je:j. Se=rmyoferCce:-issier

- While representing a prea= ,.c an pt :: ant to the Atc.=>,c ."2 ca. sw::s rso e4c tas ar.3 fetwerd m. U.S..}cpcn cm.signi5ca.

Energy Act c.e19.o.. as amende.a t e . .

Energy 7.cc:7std:st:ca Act ef m. cs -

c:.a.c ccr4 rssc.es-es,- -

t.s.e l..teri? Aff ee=ent oes c.L. uteru.t .:ete2r . ,cn 4 arnended, and section 553 cf. Ti.t c 5 cf

." e.s

' ~ ~ ' "" "'I '

t the U.."..e d.t,tates Cod cpe:stec = any cre :en to "00 cre.way sh en . ! cdep.:en c:,e. _e Ic no::ce ov.mg is hereby CIVit AERONAIITIOS BOATsD . chartri',ichts.!c-p Se at:!ines cf ca::

ce$.' leted.- - . H CFR Part M ,{ , , t. re_tIhecc s U S ca.

- 2.The auScrity citation'for Part 50 (FDR-79: Cocket 40001; Dated .h.;.?y 0*l.

eintig, en 2 Japts c.cu m contin;ss to reac" as icUows: 113:1 , cew I..te:= Amment and m, attac:catca of its !=:n,ntst  : !c=el Auth:9r. Secs.103.154. itt.1 ti :33. m. Procedures ior Awarding 3apanese ratif::iatics, we be!!cyc it ec=ssey to (2 hi --

. .: :A rir. dons , ahpt. os as c=epen.7. bas {s - ,

f..rst yer sDSP E' 2:32. 02*?P sees. 201. 22. CC. 53 Sht. .143. *

~ Ac!Pa Civ0 Aercneutics Eoerd. YFM,5t* C- C Of.:Mer 1:4.12:5. (4:U.S C !JA1. W . WS). c .'es s p"". g.g .;;g gf .c:e.3. .. _. e~ . . u.,*"-

C.I' 0 0 ~' M 1.:.5qt tuihrr=. - .:t: ens e.tzcng these US cd.c: Mss rettd. ' " . ,

S<cten 5: 70 elso idued under sec.1.'. ed sim u.:rt: A= 1:t'c..= acec=ent cant:s dtt desi e to epc:a'e thc.=.

Stat. sa9 (4:U.S.C ::::1. Se cScas !1ta.m the U.S.c d Ji;; W'"dd CI.cmse, preie: set to also a,s s.ed ur e er :-c.12,4. Ca Sta t. E!.4. c s mended (42 USC :234). Sections n1tn.

betwecs.s

"". y si;gs 2 or=2 .pt an ,M al:cws cne. cach h, ave is ei'.ccate these tew!y wc way ch :1er flights between the two C"a;*er rWs.Howcret the::1:.me .d 50.tc: !ss.ed under s ec.1ES.

- Es S:st. 955 B2 av U.S C =35). countries each yest.The C.agg er pose, 'I',ailao:, ty an pctential,to s*gni..cantly For the purreses cf sec. 23. E8 Stat.t53. as procedures for eliocating the .".rst ye er's. 'CI Ubjapan at. s,unce a rcer.ded 14:U.S C :ra). I I 50.-0 (a1. (b). 3T, lii; hts to interested U.S. airlines. cppertunit:.es, coupiec with eur des,.re to -

a nd J:) 50.44. 50.45. 5143.10.54, and 51Eo(s) Crandlader authenty wedd be allcited ensure that they are pic=ptly and are issued under se::. Ittb. 55 Stat. Ina. as to certain airlines and the re=ab.g equita,bly distnbuted, persuade us that a - amended (42 U.S C 22:71(bih Ii 50. 0 (b) and flights wedd be awarded by lettery, the incre responsiMc course of ac*ict is

. (c) and 5:.54 a*e issued u.nder sec.1E11. C4 for us at the outset, to establish Stat. ,t9 as amended (4:U.S.C CO:til): sud cam Cc=ments by: August 12. HE .

pictedures to govern their use.S

( l 50.55(e). 50.!h'b). 53.70. 50.: 1, 50.72. sr d Cc= nents and other relevant 50.78 are issued under sec.101o. te Stat.s:c. Inictmatica reccived af ter this date wG ' ., ., ,

as ame::ded (42 USC 2002(c. . he considered by the Ecard c:!y to the , ,",' *

                                                                                                                                                                                                            *l,""' [,[," ,[

2. A new parapraph (y]is added to " nient practicaMe.

                                                                                                                                                                       %           deHy .:1outi:n tresrsm .nd ee tr.un. 3

[ 50.2 to read as follows. ADDRESSEO: Twenty copies of ce=: rents """4* "'^8 '"Y ' rd'" h**' r * ~4

                                                                                             ~ sh30ld le sent to D'ocket 40891. Civ-J                                          **#**".""                        8#'Y#                           8 i 50.2 cefwgons.                            .--      -         , Aeronautics Board. 2E.5 Connecticut                                          under          u n. r.ied . e."my."rci c,d r c.;,cw i:cd by o.u.... N.non.u~.n
                                                                                  .               Avenue.N.W Washingten. D.C.004:3.                                            me it beec nurud. *e rwrect. =<0d im

[y]" Protected area * = cans an area Individuels rnay submit their view s as '" Med *' " m" Wa ~'W  : ' r'er,- et

                 .               enco: passed by physical barriers c.nd                           consurnen without filing rnu!!ipie                                        -
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                                                                                                                                                                                                                                              *['[,7 to which access is controUed.                                    ccpics. Cemrner ta may be exam.ned la                                        to ees.co. ce car.e t Y
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                             }E NUCLE AR REGULATORY COMMISSION W A5HlovG T ON. D. C. 705%
                       ~
            % o...f      ./ E                                  .

SEP 0 71983 MEMORANDUM FOR RECORD

                ~~~' FROM:                 Thomas G. Ryan                           --

Human Factors & Safeguards Branch Division of Facility Operations, RES

SUBJECT:

REVIEW OF INP0 AND EEI GUIDELINES FOR FITNESS FOR DUTY The purpose of this Memorandum for the Record is to document the undersigned's reviews of Institute of Nuclear Power Operations (INPO) and Edison Electric Inst,itute (EEI) guidelines (criteria?) for responding to the proposed final Fitness for Duty Rule (amending 10 CFR 50.54). INPO guidelines are entitled,

                          " Corporate Evaluation Criteria, Fitness for Duty", and INPO Document 82-023,
                          " Performance Objectives and Criteria for Corporate Evaluations and Assistance Visits". They were received by the NRC as enclosures to a June 2,1983 letter from E. Wilkinson (INPO President) to W. Dircks (NRC Executive Director for
   ,                      Operations). EEI guidelines are untitled (presumed howeve>r to be EEI's policy statement on fitness for duty). EEI guidelines were received b'y the NRC (Messrs. Morrison and Ryan) from Mr. C. Behnke (EEI Vice president for Industrial Relations), on August 3, 1983.                    Criteria used in this review to assess the adequacy of the INPO and EEI guidelines, appear on Page 56 of NUREG/CR-3196, " Drug and Alcohol Abuse: The Bases for Employee Assistance Programs in the Nuclear Utility Industry". These criteria (program elements) emerged from NRC research on drug and alcohol abuse, as constituting effective fitness for duty programs in U.S. industries'6ver the past 30 years.         These criteria (program elecer.:.s) include thd following:            -

o Written Policies and Procedures, covering all aspects of the program, which are legal and emphasize prevention rather than l solely remedial (e.g. , punitive) action.

                    ,,'         o     Labor-Management Cooperation, such that personnel at all levels are motivated to participate in the program, and perceive the parent company as being interested and supportive of employees in solving their personal problems.

o Supervisory Training, to acquaint managers with their program responsibilities, and techniques and procedures for recognizing and reacting to substance abuse, and transitory emotional

                             .         instability and physical .impairrtents.

o Employee Education, to acquaint oersonnel (e.g., utility and contractor employees) with the ;. ogram, and their rights and responsibilities. ' t m

                                                                                                 '*9               A469

r. ,

w \ pum 3 o 9 *+3

                                                         )

a

2 o Professional Staff, t,o manage and carry out the program, especially in areas involving diagnosis and treatment of substance abuse and emotional instability. o Recordkeeping, to document how and when program policies and procedures are applied, especially in individual cases of

        . _         .             substance abuse and emotional instability where the perceived
          .                       legal rights of the employee and the company may come into conflict.

o On-Going Evaluations, to establish actuarial data on the

                ~
       ' ' " ' ' -                ef f ectiveness and cost benefits of- the program. Quite often
            , , , _ _ _        __.a program tailored to a specific industry requires " fine-tuning" over time.

INPO Documentation Review

 '      ~~ ~

The general criteria listed in the " Corporate Evaluation Criteria, Fitness for Duty" paper appear to respond, in part, to the Written Policies and Procedures, Supervisory Training and Employee Education criteria. However, they do not appear to respond to the Professional Staffing, Recordkeeping or On-Going Evaluations criteria. The INPO Corporate Evaluation Document 82-023 was also reviewed for its application to fitness for duty. The Corporate Evaluation Document does not appear to specifically-address the issue of fitness for duty. Reviews of these documents also raise the following questions. First, does INPO intend to integrate the " Corporate Evaluation Criteria, Fitness for Duty" material into the INPO Corporate Evaluation Document 82-023? How and'when will the INPO fitness for duty guidelines be evaluated for their appropriateness to the nuclear utility industry? -Finally, will~ the guidelines (criteria) being developed by the EEI task force supersede the INPO guidelines? EEI Documentation Review The EEI policy statement contains three sections i.e., Introduction, Key Program Elements, Policy Checklist. Section I, " Introduction", was not provided to the NRC as part of the August 3, 1983 policy statement. It is understood, however, from Mr. C. Behnke (EEI) that the Introduction l Section will be made available to the NRC at a later date. It is also understood from Mr. Behnke that the Introduction Section will be a short (2-3 sentence) statement to acquaint the reader with the purpose and objective (s) of the EEI policy statement. o Section II, " Key Program Elements" , presents program components presumed to be exemplary for the nuclear utility industry. Each is reviewed here for its responsiveness to the criteria from NUREG/CR-3196, listed above.

1. EEI Element, " Written Policy": A clear statenent' of company policy l on drug and alcohol abuse should be developed and made available in

                             .         writing to all supervisors and employees.

Commer - This EEI element responds, in part, to the Written Policy and Procedures criterion, however, makes no references to non-fitness for duty due to emotional or physical. impairments. h _

       ~

3

2. EEI Element, " Effective Policy Communication"- Policies concerning drugs and alcohol should be communicated to employees by the Chief Executive Officer of the company, or other top level management.

Comment: This EEI element responds to the Labor-Management Cooperation and Employee Education criteria.

3. EEI Element, " Fitness for Duty Training and Behavioral Observation":

Training should be undertaken of supervisors on warning signs and - symptoms reflective of deteriorating job performance commonly associated with drug and alcohol abuse.

                  -_ . , _ _ _ _ _ _ _ _ _ _ _ _ Comment:      This EEI element responds, in part, to the Written Policies and Procedures criterion, however, establishes no clear criteria for assessing 'non-fitness for duty due to drug or alcohol abuse, nor does it address emotional and/or physical impairments'
           ~' " "

4. EEI Element, " Policy Guidelines and Training for Supervisors":

Supervisors should be tralned to familiarize them with job performance warning signs reflective of drug and alcohol abuse. Comment: This EEI element responds, in part, to the Supervisory Training criterion, however, establishes no clear criteria for non-fitness for duty. In fact, the element goes on to state that an alconol breath is not necessarily evidence of non-fitness for duty. Other government regulatory agencies (aviation, trucking, rail)

     ,                                            are quite explicit concerning the conditions for non-fitness for duty (e.g. , drinking within 4 or 8 hours before coming on duty).

It is incomprehensible that the nuclear utility industry and/or the NRC would explicitly or implicitly tolerate drinking prior to work, at lunch, or on breaks, among persons with unescorted access to protected areas of nuclear power plants.

5. EEI Element, " Company Employee Assistance Procram": An employee assistance program, o ile not specificed as ah* essential ingredient of a fitness for duty program, is suggested'as a sound and desirable investment.

Comment: A concern of the.NRC staff regarding the EEI task j force has been the latter's singular emphasis on punitive measures i . _ for persons caught using and/or selling illegal substances. While this approach might be useful with illegal drug offendors, it does not a'ddress persons impaired due to legal (prescription) drugs, alcohol, and other emotinal or physical problems. Federal and state laws ary quite specific concerning persons with certain drug, alcohol, emotional and physical impairments, and for handling such cases in a humanitarian way. The Feoeral government, for example, considers alcoholics handicapped persons. Therefore, it is hard to undestand why EEI guidelines do not make employee assistance an

                                  - .               essential ingredient of their-fitness for duty programs.

AMA t_.-

6. EEI Element, " Top ,Manaoement Support": Top management should be briefed by recognized health professionals on the safety hazards of drugs and alcohol, combined with a clear outline of the company's fitness for duty program and implementation plan.

Comment: This'EEI element responds to the Labor-Management Cooperation criterion.

              .                      7. EEI Element, " Law Enforcement liaison":        Notification ~of local law enforcement upon the discovery of suspected illegal substances should be standard policy.        __
            .~ - - - - - - . Comment:                 The EEI element responds to the Written Polic-ies and Procedures criterion, pertaining to illegal substances.

8. EEI Element, " Union Briefing": Briefing of company policies and

          -- -                           rules for the safe and ef ficient operation of the plant and equipment, including those focusing on fitness for duty,- to the
        ~

unions, is suggested.

                                   . Comment:     This EEI element responds, in part, to the Labor-

> Management Cooperation criterion. The non-mandatory nature of the element, however, could create legal problem,s and/or morale problems among the employee group.

9. EEI Element, " Contractor Notification": Companies should ensure that contractor employees abide by company rules' regarding drugs and alcohol, and the companies should give notification that this is a condition of access to their property and equipment.

Comment: This EEI element responds, in part, to the Written Policies and Procedures, Labor-Management Cooperation and Employee Education criteria. EEI Element, " Aim the Message at the Co-Worker":

10. The workforce

;                                         should be apprised of how their health, safety and jobs are vitally affected by a co-worker's impairment due to drugs and/or alcohol.

Comment: This EEI element responds to the Employee Education criterion.

11. EEI Element, " Health and Safety Information": Company drug and alcohol policies should be communicated to the workforce and their .

families, by the Chief Executive Officer. . Comment: This EEI element responds to the Employee Education ! criteria. I Section III, " Policy Checklist", presents an 11 item check-off sheet ,

                         - paralleling the 11 key program. elements discussed above.
     ~

A4U1

                                                                                            ---y-,-----.            -     ..-ma  ,                   ,-., 7,-
                                                                               ,n     n                     ,__                         9e

5 Summary of Comments on EEI Poliev Statement o The EEI policy statement addresses, in part, the Written Policies and Procedures, Labor-Management' Cooperation, Supervisory Training and Employee Education criteria used in this review. Professional Staff, Recordkeeping and On-Going Evaluations criteria are not addressed explicitly. The latter two criteria (program elements) have been recommended to the Chairman of the Commission by the ACRS (letter from Ray to Palladino dated August 9,1983). o The EEI policy statement addresses drugs and alcohol only. There is no clear policy statement or key program elements for dealing with emotional

    - 1       --.. or physical impairments which might render.an individual unfit for duty.

o The' EEI policy statement . establishes no explicit criteria for determining fitness for duty. In fact, the policy statement, at least implicitly, condones the use of alcohol prior to work, during lunch, etc., by stating that an alcohol breath does not necessarily constitute non-fitness for duty. Additionally, criteria for determining non-fitness for duty due to drugs, emotional or physical impairment, are not discussed.

                                                        ~

o The EEI policy statement focuses primarily on punitive measures-(e.g. , liaison with law enforcement) to.be taken by companies in response to illegal drug use. Non punitive measures (e.g., employee assistance programs) are de-emphasized. - - o The EEI policy statement provides no information concerning its publication and distribution, int = 1 ration with INPO guidelines, or its status as an industry-wide respons i to the final proposed fitness for:- , duty rule. j omad Thomas G. Ryan

Senior Engineering Psychologist l HF5GB-DFO-RES l

                                                                                                   ~

l . i O l l .- . ,

2 February 1984 Loren Bush Tom Allen Bob Benedict

               ~_         _.__                                         -.

Attached is a copy of the Fitness for Duty Comission Paper ---- as currently modified by Dircks/Stello. I'm not sure that they

         . _ _ _ .                have contacted your offices for comment.

Tom Ryan 3-7656 , NOTE: Rule (Enclosdre 1) now covers three pages. o Y s r

                                                ~

36I Ano

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               =

For: The tcmissioners From: William J. Dircks Executive Director for Operations

Subject:

ADDITIONAL INFORMATION ABOUT FINAL FITNESS FOR DUTY RULE (SECY-83-339) purpose: This paper responds to a December 12, 1983 memorandum from the Secretary requesting additional information and staff views on a number of issues ~ raised by the Comissioners during their deliberations on the final fitness for duty rule (SECY-83-339).

Background:

A majority of the Comission has agreed that the rule should apply to escorted as well as unescorted personnel at nuclear power units, to vital rather than protected areas of those units, and to NRC employees (and other Federal, State and local government employees) who are otherwise authorized access. The Comission was unable to reach a decision about the handling of NRC employees determined not fit for duty (whether they should be provided prompt escorted access or whether they should be denied access); and it has not decided whether the rule should be broadly worded (leaving implementation procedures to licensees) or more narrowly worded with a substantive criterion on alcohol level (thereby following an approach pursued by other regulatory agencies such as the Department of Transportation's Federal Aviation Administra,ti,on (FAA) and Sureau of Motor CarrierSafety(BMCS)). Discus si_on_: ESCORTED ACCESS VEPSUS DENIAL OF ACCESS FOR NRC EMPLOYEES The Comission agreed that the rule should apply to escorted and unescorted persons, including NRC and other - Federal State and local government employees, who are authorized access to vital areas of nuclear power units. We do not disagree with the Comission's decision to have the rule cover vital" rather than " protected" areas. Nor do we l disagree with the decision to have it cover " escorted" as well as " unescorted" personnel, though we think that go

w -

                                                        . ,; s . w . . i .a ns. cn           cm The Cc missioners                                                                                                                                               :

inclusion of escorted personnel undemines the originally stated intent of the proposed rule which was meant to cover only unescorted personnel. We do not believe, however, that the rule should cover NRC personnel and other Federal State and local government employees for the following reasons. t First, we think that giving a licensee the right to deny access to an NRC inspector gives the licensee too much power over NRC employees and may cause serious disautes when the ,

                  ~ ~                       inspector attempts to discharge his or der duties in a timely          l and conscientious manner. Secondly, we think that the handling of " fitness for duty" of NRC personnel should remain an internal      !

NRC matter. We should .not be out-guessed or second-guessed by  ! the licensees we regulate and inspect. Giving such power i to licensees might easily lead to mischief for our personnel and those of other agencies. Thirdly,10 CFR i 50.70(b)(3).

                                            " Inspections," now provides that a licensee-                          :

i

                                                   ... shall afford any HRC resident inspector assigned to       - !

that site, or other NRC inspectors identified by the l Regional Director as likely to inspect the facility, < 1 mediate unfe_ttered access, equivalent to access

                                                                    ~

l provided regular plant employees, following proper identification and compliance with applicable access ( control measures for security, radiological protection , and personal safety (Underscoring added'.) i Giving a licensee the right to deny any access would conflict with an NRC inspector's right to imediate unfettered

                      ,                     access. Other agencies may have similar conflicts.                      ,

i provision of an escort to our personnel with unescorted access and to those of other agencies does not completely resolve the conflict between the fitness for duty rule and 5 50.70 or a similar provision of another agency, for a , licensee's application of the rule can delay access i and clearly fetters it. Nonetheless, we have proceeded to , t redraft the final rule and its statement of considerations i to reflect the Comission's decisions and to include  ! provision of an escort if unescorted access is denied on the basis of an NRC employee's apparent unfitness for duty. l l The staff agrees that the licensee should be required to promptly advise NRC authorities (i.e., the appropriate Regional Administrator) or a Department of Energy (DOE) official or other appropriate Federal, State or local ' i l 1 1

                                                      .                                                              1 l .

Amo ) O ~

                    <t.     -     a .c. . . - -       i. . , ga &                g,.'eis
                                                                                           '~
                                                                                              ~ 'oa3              ;

l l The Comiss.oners . . l government officials, following denial of unescorted access

• and provision of escorted access to an NRC employee or to a DDE or other Federal, State or local government representative.

The licensee's procedures would have to designate a officials who are to be advised when other Federal ppropriate

      ~

State or local government employees are denied unescorted access and

           ..                               provided escorted access.
         ;,_.__. .                          _A BROADLY-WORDE

D. PROCEDURE

S-BASED RULE VERSUS ONE MORE PRESCRIPTIVE The Comission is concerned about whether licensees will be able to specify details to procedures required by the fitnc s for duty rule, and whether NRC should develop specific guidelines about acceptable implementation procedures. The Comission also requests that the staff consider, as an alternative to requiring written procedures, the FAA approach (criterion-based rule) as proposed by Comissioner Gilinsky. . SECY-83-33g currently proposes that licensees, rather than the NRC, identify specific procedures for detemining and responding to fitness for duty, taking into consideration circumstances unique to their own facilities. Guidelines for preparing licensee procedures in response to the rule, as - currently proposed, were published in September 1983 by an f Edison Electric Institute (EEI) Task Force entitled, " Guide to i Effective Drug and Alcohol Policy Development" (Enclosure  ! 3). If the fitness for duty rule, as currently proposed by  :- the staff, is promulgated by the Comission, we intend to use the eel document as one basis for reviewing licensee procedures pertaining to alcohol and druis. It does not cover tie third ' factor in the rule, namely, pvsical and mental impairment impacting fitness for duty. We continue to believe though, that the rule should be broadly worded and procedures-based (allowing licensees to determine fitness for duty through observation of employee behavior), since a fim technical basis does not exist for specifying ' definite criteria with regard to unfitness for duty for personnel at nuclear power units who are under the influence of alcohol, other drugs, or are otherwise emotionally or physiologically impaired, An alternative rule based on the FAA approach is suggested by Comissioner Gilinsky. This rule would prohibit personnel from entering vital areas of nuclear power units while under the influence of alcohol (0.04 blood alcohol concentration)* i or drugs or otherwise unfit for duty, leaving the method of

                                              ~

carrying out the rule up to the licensee. It should be noted that, while the 0.04 blood alcohol concentration has been proposed by the FAA, it has not yet been adopted. , 1

   ~

40 milligrams of alcohol in a sample of 100 milliliters of blood. g ,= 1 I

cz or s.: at:s { tu -m n-n o to.cn oc.: The Comissioners . . . During the past 18 months, the NRC staff has discussed various issues and exchanged information with Department of Transportation staffs responsible for FAA and BMCS fitness

      ~

for duty rulemaking actions. -Since both FAA and BMCS rules follow an identical approach, current and proposed FAA fitness for duty rules focusing on alcohol and drugs are discussed here as illustrative of that approach. In discussing FAA fitness for duty rules, two factors should be

      ---u-'--                      kept in mind. First, extensive research over 30 years into
                -        ~~~

the effects of alcohol, other drugs and emotional and physical impairments on air and surface transportation has beencarriedoutbygovernmentandindustry(e.g.,"The Effects of Alcohol on Pilot Performance During Instrumented Flight", " Alcohol and Hi hway Safety 1978: A Review of the State of Knowledge" and g' Drugs and Highway Safety 1980"). The results of this research provide the technical basis for

        ~                           the FAA and BMCS rulemaking actions. Second, current and proposed FAA rules are prescriptive. That is, specific ~

criteria for fitness for duty, methods of carrying out the rules and the rules. punitive actions against violators are contained in The current FAA rule (14 CFR 91.11) does not allow any person to act as an aircrew member of a civil aircr, aft: (1)within8 hours after the consumption of any alcoholic beverage (2) while under the influence of alcohol, or (3) while using any drug that affects his faculties in any way contrary to safety. An aircrew member is defined to include any pilot, flight engineer, flight navigator, flight attendant or other person assigned to perfom duties in an aircraft during flight. The rule also applies to passengers and FAA inspectors, stating ..."Except in an emergency, no pilot of a civil aircraft may allow a persor, who is obviously u,nder the influence of intoxicating liquors or drugs (except a medical patient under proper care) to be carried in the aircraft." This latter part of 14 CFR 91.11 is supplemented by 14 CFR 121.575 (c) which states, "No certificate holder may allow any person to board any of its aircraft if that person appears to be intoxicated." Finally, 14 CFR 63.12 provides l' for suspension of an aircrew member certification or rating for a period of up to 1 year after violation of any part of 14 CFR 91.11. l The FAA has preposed amendments to 14 CFR 91.11 (46 FR 38480 dated July 27. 1981) to include provisions that: (1) aircrew ~

                    '               members be considered under the influence of alcohol while having 40 milligrams of alcohol in 100 milliliters of blood (0.04 blood alcohol concentration), and (2) whenever the FAA Administrator has a reasonable basis to believe that a person i                                    who acted, or attempted to act as an aircrew member of a

l. civil aircraft may have violated any section of 14 CFR 91.11,

                             '           ~

l. -

A4W

                               = .-.

or ca. e : 22: 5 IE-tEHME to. 035 005  ! The Cox.issioners - 5-l that person shall do either or both of the following as requested by the Administrator: (a) submit to a chemical test of the breath and furnish the results to the Administrator, and (b) submit to medical tests that indicate presence of other drugs in the blood and furnish the results to the Administrator. The FAA has also proposed amendments to 14 CFR 61.15 and 61.16 specifying punitive action against ' persons who violate one or more provisions of the amended 14 CFR 91.11. These include (a) dental of an aircrew

                -             ~                 certificate or rating to applicants for a period of up to 1 year after conviction of any Federal or State statute relating to alcohol or other drugs, and (b) . suspension of a certificate or rating, or permanent revocation, for refusal to submit to medical tests for alcohol or other drugs at the request of the FAA Administrator. It should be noted again that these proposed anendments to FAA regulations have not yet been adopted. A criterion based rule of the type suggested by Conmissioner Gilinsky whichspecifiesonecriterionforfitnessforduty{0.04 bloodalcoholconcentration),mustprovideatechnical basis for that criterion. Additionally, establishing a blood alcohol concentration criterion for fitness for duty, at least implicitly, dictates to licensees methods required for rule implementation (breath, and other chemical tests, rather than observed behavior).                                                                        >

We continue to believe, given a paucity of direct first-hand infomation on the magnitude, nature and trends of alcohol end other drug use, or emotional and physiological factors impacting safety at nuclear power units, that e ' rule based on the existing and pro >osed FAA approach is inappropriate. And, we believe, t1at it would be especially inappropriate if applied to our personnel and to those of other agencies. The FAA research does not seem directly transferable to the nuclear utility industry. It is expected that a procedures-based rule of the type previously suggested by the staff would be ' implemented by observation of behavior by supervisors.

                    ~           '         ~     Persons displaying abnormal behavior would be relieved
               ~                                from duty and taken to or referred to an appropriate expert for analysis of the cause of that behavior.

Recomendations:

                          ~

The issues raised in the December 12, 1983 memorandum from the Secretary on the final proposed fitness for duty rule (SECY-83-339) have been addressed in the

• discussion section of this paper. The staff views and recomendations on these issues are summarized as follows:

o NRC employees and those of other agencies should not be included in the rule. If NRC employees are A &70

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                 , ovous.s      85:29         tE-toi-n GB                to.015          cx             ,

I The Commissioners  !

                                                     .                                                  l included in the rule, along with other Federal.         l State and local government personnel, (1) they should be provided escorted access, if they have        l
                                      ~

unescorted access and if they appear unfit for ( duty, and (2) the appropriate NRC Regional  : Administrator DOE official, or other Federal, ' State or local government official, should be immediately notified following grant of access.

              .._______.._.              o     The rule should be broadly worded, rather than          I prescriptive with specific criteria, to allow licensees to estabitsh procedures which are            ,

behavior-based and which take into consideration  ! __ __ circumstances unique to their own facilities.  ! i Enclosure 1 presents a revised fitness for duty rule and Enclosure P a statement nf conside. rations as currently envisaged by a majority of the Commission. The staff wishes to note to the Cnnmission that the statement of considerations may have to undergo additional revisions,  ; perhaps substantial ones, depending on the Commission's j final decision. ,

                                                                                   .                  I William J. Dircks                     i Executive Director for Operations    !

Enclosures-

1. Revised Rule i

2. Statement of Considerations i

3. EEI Guidelines i

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l l Enclosure 1 REVISED F_ITNESS FOR DUTY RULE

1. A new paragraph (y) is added to 10 CFR i 50.2 to read as follows:

(y) " Vital art 6" mtens pny #rt$ which contains any equipment, system,

                ~ device, or material, the failure, destruction, or release of which could directly or indirectly endanger the public health and safety by exposure to radiation, or any equipment or systems which would be required to function to protect public health and safety following such failure, destruction, or release.

2. Anewparagraph(z)isaddedto10CFRi50.54toreadasfollows:

(z) Access to vital areas and fitness for duty. (1) Each licensee with an operating license issued under 10 CFR 5 50.21(b) or i 50.22 of this Part for a nuclear power unit shall establish andimplementthewrittenproceduresdescribedinsubparagraphs(z)(1)to (z)(6) of this section by [ insert date 9 months after the effective date of this rule] or by the date of issuance of an operating license, whichever is

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1ater. A licensee which cannot lheet this deadline must submit to the Director of Nuclear Reactor Regulation a request for an extension no later than 90 days before the deadline and demonstrate good cause for the request. . (2) These procedures shall apply to all persons (including Comission, i Department, and other Federal, State and local government employees) with escorted or unescorted access to vital areas. g p... .

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l 2 .' - (3) These procedures shall previde reasonable as.surance that any' person in'a vital area, while perfonning sny duty in that tr'ea, is not: l

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(i) Unfit for duty due to' the influence ~ of alcohol; - (ii) Unfit for duty due to the influence of any drug or drugs' that could __ affect his or hhr faculties in any way contrary to safety; or

                =-    - -(iii) Unfit for duty because of any other mentel or physical impainrent that could affect his or her perfont.ance in any way contrary to safety.
                   - -               (4) A person who is unfit for duty shall be denied access to a vital area, except as specified in subparagraphs (z)(5) and (t)(6) of this section.

(5) If it appears that any Cemission employee with unescorted or escorted access to a vital area ic unfit for duty, as described in subpara-graph (t)(3) of this section, that person'shall continue to have tha right of immediate, unfettered access > specified in i 50.70(b)(3) of this Part, I except that:  ; (i) If that person has unescorted access, the licensee shall provide that person with escorted access; and (ii) Whatever the access status of a Comission employee, the licensee shall irrenediately notify the appropriate NRC Regional Administrator after grantir.g access. ,

                                    .(6)      If it appears that any Department or other Federal, State, or local governant ' employee with unescortcd or escorted access to a vital area is unfitforduty.asdescribed'insubparagraph(z)(3)ofthissection.that h

person shall continue to' have whatever right of prompt access is specified . under applicable' Federal, State or local law, except that: i l (1) If that person has unescorted access, the licensee shall immediately ['

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                                                                      . 3 provide that person with escorted access; and (ii) Whatever the access status of that person, the licensee shall imediately notify an appropriate Federal, State or local government official after granting access.

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Enclosure 2 l REVISED STATEMENT OF CONSIDERATIONS FOR FITNESS FOR DUTY RULE SUPPLEMENTARY INFORMATION:

         , ,       _           ....                               Background The Comission recognizes alcohol and drug abuse to be a social, medical, and safety problem affecting people in almost every industry and occupational group. For example, the National Institute on Alcohol. Abuse and Alcoholism (NIAAA), in its 1981 Report to Congress, reports that 46% of all non-fatal and 40% of all fatal U'.S. industrial accidents involve sicohol, et an annual cost of $12-15 billion. Given the pervasiveness of the problem in our society, it seems reasonable to assume that alcohol and-drug abuse, as well as other emotional and psychological factors, also exists in the ~ nuclear industry.         ,

Prudence, therefore, requires that the Comission impose appropriate precautionary measures to reduce the probability that a person, who is under the influence of alcohol, drugs, or who is otherwise unfit for some task involving a nuclear power reactor, may cause an accident or react inadequately to an accident. The job performan:e of alcohol and drug abusers can be expected to be hindered by the presence of chemicals in their blood stream. For example, 4 cunces of alcohol in the blood stream of a 165-pound male requires approximately 12 hours to metabolize. This is o n reason that other regulatory agencies (ea, U.S. Department of Transportation) mandate specific periods of abstinence (e.g., 4 or 8 hours) for interst' ate truck drivers, comercial airline pilots, etc., before these persons come on duty. Drugs other than alcohol, such as cocaine and hashish, require as much as 24-72 hours to metebolize.

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The Tennessee Valley Authority's (TVA) 1979 Report on its Alcohol and Drug Dependency Program states that the program served 350 employees during i that year (one out of every 143). TVA estimates that its annual cost due to alcohol abuse alone is approximately $18.5 million. As recently as mid-1981, approx,imately one-third of the Edison Electric Institute's (EEI) member g O ___ --,e -

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l i 1 I companies operating nuclear stations had no programs to deal with this problem. ' More recently, NRC Inspection and Enforcement (IE) Information Notice No. 82.05. " Increasing Frequency of Drug-Related Incidents," reported a steadily increasing number of drug-related arrests and teminations being reported by

                   .      the nuclear industry since 1978. The reported incidents are widespread t
                     -- geographically and involve power reactor sites in each of the five NRC
                ,._       regions. .The Comission has determined, therefore, that a regulation is necessary to deal with this problem.
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Proposed Rule On August 5, 1982, the NRC published in the Federal Register (47 FR 33980) its proposed " Fitness for Duty" rule, amending il 50.2 and 50.54 of 10 CFR Part

50. The proposed rule would have required._ licensees to establish and implement written procedures to provide reasonable assurance that their and their contractors' personnel with unescorted access to protected , areas, while in those protected areas, are not under the influence of alcohol, other drugs, or otherwise unfit for duty. Various questions were posed in the proposed rule to which the Commission wanted responses in order to draft a final rule.

Co,ments A total of 73 responses containing 310 comments were received,"all of l which were evaluated in developing the final rule. The following discussion l highlights the major issues raised in the coments received and their resolution (coments received and a more complete discussion of their resolution are available for review in the Comission's Public Document Room at1717HStreetN.W., Washington,D.C.20555). Coments were received on 16 issues grouped under the following four headings:

1. Overall agreement or disagreement with the rule, citing utility awareness or non-awareness of, and action taken to resolve the fitness for duty issue; A +10

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2. Socioeconomic issues (legal, union, monetary cost, morale) which might be raised if the rule is promulgated;

3. Implementation issues which should be addressed before

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issuance of the final rule (n, definition of terms, use of breath testers and other diagnostic techniques, impaiment standards); and

                      = 4.        Recommended changes in the proposed rule (i.e. inclusion of NRC
            . -personnel,- appl 9.ation to protected versus vital areas of the nuclear power unit, guarantees of effectiveness, record keeping).

Approximately two-thirds of the respondents disagreed with the need for a

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rule, stating in assence that: (1) NRC has not establjshed a sufficient need for the rule, (2) the rule should be part of the so-called " Access Authorization" rule,nowaproposeddraft10CFRi73.56,andthat(3)the utilities are aware of the fitness for duty issue and are taking appropriate remedial action. __ Response to Coments The Comission believes that a problem exists which can be solved by the rule, that not all of its licensees are taking appropriate remedial action, and that this rule should be promulgated separately from the Access Authorization rule which deals with other issues. It also believes that a

too rigid and prescriptive rule will not resolve the problem adequately.

Therefore, it is issuing a broad regulation which allows each licensee to l develop written procedures that take into consideration not only fairness to, l and due process for, its employees, but also any condition or circumstance I unique to its facility. The amendment to 10 CFR i 50.54 will apply to all ) persons with unescorted or escorted access toNital areas in facilities of ' licensees issued operating licenses under 10 CFR i 50.21(b) or i 50.22, i.e, licensees of nuclear power units. Several respondents coment that the development and implementation of *

                    " fitness for duty" procedures would cause a licensee legal and union-related liabilities, significant monetary costs. and would have a deleterious impact                     j on employee morale. The Comission believes the licensee, its legal counsel, and unions can resolve internal legal and union issues. Fitness for duty                         l A470
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02 cb s 12:42 tsc-run-nas to.eas os3 - ~ - - - " " programs are currently being implemented without significant legal or union liabilities by most Federal and State government agencies, and the majority l of regulated and non-regulated U.S. industries. Additionally, monetary

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costs should be minimal for utilities which currently have in operation some form of fitness for duty program.

           ~"- ~ Coments about implementation issues involving the rule, such as
                       -definition of terms, use of diagnostic tools such as breath testers, or estabitshment of fitness for duty standards, were received from 58 of 73 respondents. Most of these expressed a need for definitions and standards
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and objected to the use of breath testers. . Six specific recomendations for changes in the proposed rule were received from 56 of the 73 respondents. These involve: (1)changingtheword

                         " ensure" to the term " provide reasonable assurance;" (2) extending the rule to all persons with unescorted access, thereby including NRC personnel as well as personnel of the Department of Energy, and other Federal, State and local government agencies; (3) limiting the rule to " vital" areas, rather than
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having it apply to the more general " protected" areas of the plant; (4) eliminating the requirement for maintaining records of written procedures for the life of the plant; (5) providing time for implementation; and (6) wording the rule broadly and not making it prescriptive. The Comission has accepted all of the above recomendations, each1of , which has been incorporated into the final rule, and had made some , additional ! changes. First, the word " ensure" was changed to the term " provide reasonable assurance". _ Second, NRC, along with other Federal, State and local government employees have been incTuded in the rule. In fact, the rule has been extended to cover all persons with access to vital areas--whether that access is unescorted or escorted. This category of personnel was chosen because any

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person with access to a vital area may adversely affect the health and safety of the public. ' Provisions have been added, however, to make clear that NRC employees with unescorted or escorted access shall continue to have immediate, unfettered access (as now provided in 5 50.70(b)(3)), except that a licensee

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y must (a) imediately provide escorted access to an NRC employee who appears to be unfit for duty and wh'o is denied unescorted access and (b) must

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                 ~ imediately call the appropriate NRC Regional Administrator after providing
          .        access. A corresponding provision has been added for employees of other Federal, State and local government agencies. These provisions should ensure,
      ~~ "fo~r" instance, 'that an NRC or State inspector is not delayed in the execution
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           ~-- of'his 'or her duties and, simultaneously, ensure that that NRC or a correspond-ing agency is immediately aware that an employee appears unfit for duty.

Third, the rule has been limited to persons with access to " vital" rather

   " " ihan " protected" areas because these are the areas where serious damage may be caused to public health and safety.
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Fourth, the requirement that records of written procedures be kept for the life of the plant has been eliminated, since the rule requires that the licensee's procedures be in written fom. - Fifth, the word " temporary", modifying the term " physical impairments" in the proposed rule, was eliminated as unnecessary. Mental and physical impair- , ments, whether temporary or permanent, may or may not preclude a person from being fit for duty. Persons should be considered unfit for duty if their faculties are affected in a way contrary to safety by substances such as alcohol or other drugs. Additionally, the phrase " unfit for duty because of other mental or physical impairr,ents ..." is included in the rule, in order to require that licensees consider the effects of other factors such as fatigue, stress, illness, and physical impairrents when determining an individual's fitness for duty. Sixth, the rule's implementation date has been extended to 9 months after

                - it becomes effective or by the date of issuance of an operating license, whi'ch'ever is later; and a provision has been added allowing extensions of time for good cause. NRC estimates that the burden on a licensee to develop written procedures required by the rule will be app.cximately 1,200 person-hours                                       ,

over a 9-month period if no fitness for duty program currently exists at its

                  ~ facility. The 9-month (1200-hour) program development period is an estimate based in discussions with fitness for duty program personnel in government and private industry. It matches the 9-month implementation period for the rule.
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o w 's .w s . e gt y;, g - 1 o . l 6-Finally, as stated above, the Comission does not want to be too prescriptive, It believes that it is more appropriate to promulgate a broadly. l _ worded rule that allows licensees to develop specific standards and criteria for their fitness for duty programs, rather than to specify these for them. 1 Thus, each licensee should establish specific procedures and techniques for

        . ._ .._._detemining fitness for duty (e.g., breath testers, psychological tests, and-so_on). taking into consideration circumstances unique to its facility.

Written procedures developed by licensees would probably include the following: (1)astatementofresponsibilitiesoftheprogramcoordinator, _ _ managers, supervisors and employees who come in contact with persons.with-' unescortedaccesstovitalareas;(2)anobservationprocedure;(3)a procedure (diagnosis, referral, return to duty) for assisting individuals 'who meet the criteria for alcohol / drug abuse or emotional instability; (4) an ac:ninistrative procedure for processing indjviduals who refuse assistance and/or who wish to exercise their appeal rights; and (5) training provisions for all personnel and management to acquaint them with the licensee's fitness for duty procedures. The Comission encourages use of these five criteria and welcomes the formation of an industry task force, staffed by representatives from the Institute of Nuclear Power Operations (INPO) Edison Electric

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Institute (EEI) and the utilities, that has developed a set of standard guide-lines for licensees to use in responding to this rule. The Comission will use these guidelines, among other things, in reviewing a licensee's program. 1 a l l A4@

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