ML20127G089

Forwards for Signature,Final Rule to Be Published in Fr That Amends 10CFR26, Fitness-for-Duty Programs. Amend Would Withdraw Certain Info Collection Requirements Not Approved by OMB

ML20127G089
Person / Time
Issue date:	11/03/1992
From:	Murley T Office of Nuclear Reactor Regulation
To:	Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
Shared Package
ML20127C273	List: ML20127C270 ML20127G089 ML20127J026 ML20128H421 ML20128H451 ML20128H581
References
FRN-57FR55443, RULE-PR-26 AD61-2-005, AD61-2-5, NUDOCS 9211160255
Download: ML20127G089 (19)

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UNITED STATrs AD61-N

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HEMORANDUM FOR:

James H.-Tay1or Executive Director for Operations FROM:

-Thomas E. Murley, Director Office of Nuclear Reactor ReguTation

SUBJECT:

IMPLEMENTATION OF COMMISSION ACTION: SECY-92-268 PARTIAL DISAPPROVAL BY OFFICE OF MANAGEMENT AND BUDGET (OMB) FOR REPORTS UNDER 10 CFR PART 26, FITNESS FOR DUTY Enclosed for your signature is a final rule to be published Lin the-Federal Reaister that amends 10 CFR Part 26, " Fitness-for-Duty-Programs." This amendment would withdraw certain information coll' ction-requirements not e

approved by OMB.

The federal. Reoister notice would also announce OMB approval-of other information collection requirements.

Backaround:

The Nuclear-Regulatory Commission (NRC) amended its fitness-for--

duty (FFD) regulation'en August 26, 1991 (56 FR 41922). This amendment permitted the temporary removal of an individual based on an unconfirmed -

t positive result from an initial screening test conducted'on site for marijuana or gocaine.

A. provision was added to the final rule requiring licensees to raport-the number of occasions that this rule provision is exercised..The added provision also required that the management-actions concerning appeals:

be reported to the NRC as well as reporting-of data from altlicensees' regarding test results' by_ p'rncess stage-from onsite-and.HHS-certified :

laboratory testing processes.

Process stage means 'the. results of onsite.

screening, tests, screening tests conducted by the HHS-certified laboratory,.

confirmatory' tests, and HR0 determinations.

On December 31, 1991, the NRC submitled a request for OMB-review of the information collection requirements. identified in 56'26.24(d)(2)(iv) and-26.71(d). The Nuclear Management and Resources. Council (NUMARC) provided-!

comments to OMB on February 25, 1992.- A meeting on May 7, 1992, among representatives from the NRC, OMB,-and NUMARC, was held to discuss the-information request. On-May 26, 1992, OMB-a requirements' contained in i 26.24(d)(2)(iv),pproved.the-information~ collection.

which concerns assurances-to thei individual that no records have been retained'which could link:the--individual to a temporary suspension should the -test' results' be negative.1 0MB disapproved the information collection. requirements' contained in 5 26._71(d),

which required licensees:to provide test results by process stage and management actions on appeals.and their resolutions. That was amended on July 20c 1992, to allow col.lection of the data from licensees who exercise e

the option to act on unconfirmed positive _ test results. The information collection requirement disapproved-by OMB has never been in effect. The staff' recommended acceptance of the OMB determination and withdrawal of the -

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additional reporting requirements in SECY-92-268. An SRM dated August 24,!

1992, approved the-staff's recomendation.

Eub_1.ic Comments:

The NRC requested public coments on the prososed information collection requirements in a notice sublished in tae fadittal Recister on January which_ opposed the-information collection and reporting require

- Backfit Analysis:

required for this final rule because this amendment does n provision that would impose _ a backfit as defined in'10 CFR 50.109(a)(1).

i Notices:: A notice to the Commission that-the EDO has signed this rule is enclosed for inclusion in the next Daily Staff notes (Enclosure 3). 'The appropriate Congressional Committees will_ be notified -(Enclosure _4).

(ApnLintiqn:

Office of the General Counsel has no legal objection,The Office of A Original signed by ThocasIs Murley Thomas E. Hurley, Directer Office of Nuclear Reactor Regulation.

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federal Register Notice 2.

Approved-for Publication 3.

Daily Staff Notes. Item J

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Draft Congressional Letter 5.

SRM, dated August 24, 1992 DISTRIBUTION:

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Approved for Publicat.1,gn The Comission has delegated to the EDO (10 CFR 1.3) developandpromulgaterulesasdefinedintheAPA(5(c))theauthorityto v

to the limitations in NRC Hanagemtut Directive 9.17, Organization a)n)d U.S.C. 551(4 subject Functions, Office of the Executive Director for Operations, paragraphs 038, 039, and 0310.

The attached l'inal rule, entitled " fitness-for-Duty Program,' amends 10 CFR Part 2l, by withdrawing the reporting requirements contained in i 26.7(d

' Fitness-)for-Duty Programs" (Augustthat were disapproved by O 26, 1991; 56 FR 41922).

This final rule does not constitute significant question of solicy, ner doesit amend regulations contained in 10 CFR Parts matters of policy.

I therefore find that this rule is within the scope of my rulemaking authority and am proceeding to issue it.

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Dear Mr. Chairman:

l The Nuclear Regulatory Commission (NRC) amended its Fitness-for-Duty Rule

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[10CFRPart26,onAugust 26,1991.(56FR41922)). The amendment clarified the NRC's intent concerning the unacceptability of taking actions against an

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individual that is based solely on the preliminary results of a drug screening.

test and in permit, under certain conditions, employment actions, up to and including the action of temporary removal of an individual from unescorted access or from normal duties,. based on an unconfirmed positive result from an initial screening test for marijuana or cocaine. This rule became effective on September 25, 1991, except for the information collection requirements contained in i i 26.24(d)(2) and 26.7)(d).

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The Office of-Management.and Budget (OMB) limited its approval of the-

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access or from normal duties based on an unconfirmed positive test result.-

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Enclosed for your information is a copy of the withdrawal of NRC information-collection requirements approved by the Commission for publication in the

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.j Dennis K. Rathbun, Director Office _~of Congressional Affairs t

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/.prren d__. for Publirst ion 1he Co mission has delegated to the EDO (10 CFR 1.31(c)) the authority to develop and promulgate rules as defined in the APA (5 U.S.C. 551(4)) subject to the limitations in NRC Hanagement Directive 9.17, Organization and functions, Office of the Executive Director for Operations, paragraphs 0213, 038, 039, and 0310.

It c atta:hd final rule, entitled " fitness-for-Duty Program,* amends 10 CfR Part 26 by withdrawing the reporting requirements contained in 5 26.7(d) that were disapproved by OMB in the final rule entitled,

• fitness-for-Duty Programs" (August 26, 1991; 56 FR 41922).

This final rule does not constitute significant question of policy, nor does it au nd regulations contained in 10 CFR Parts 7, 8, or 9 Subpart C concerning ratters of policy.

rulerating authority and am proceeding to issue it.I therefore find that this rule

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The Honorable Bob Graham, Chairman Subco--ittte on Nucicar Regulation Comittee on Environment and Public Works United States Senate Washington, DC 20510

Dear Mr Chairman:

The Nuclear Regulatory Commission (NRC) amended its Fitness-for-Duty Rule-

[10CFRPart26'onAugust 26, 1991 56FR41922)).- The amendment clarified.

the W,C's intent concerning the unac(ceptability of taking _ actions again individual that is based solely on the preliminary results of a drug screening test and to permit, under certain conditions,. employment actions, up to and including the action of temporary removal of an individual from unescorted access or from normal duties, based on an unconfirmed positive result.from an initial screening test for marijuana or cocaine.. This-rule became' effective on September 25, 1991, except for the information collection requirements contained ir. 6 6 26.24(d)(2) and 26.7)(d).

The Office of Management and Budget (OMB) limited its approval of the.,

information collection contained in-6l26.7)(d) to those licensees whn choose-to exercise the option of temporarily removing an individual from unescorted access or from normal duties based on an unconfirmed positive test result.

Er>clost.d for your information is a copy of the withdrawal of. NRC'information collection requirements approved by tne Commission for publication in the-Federal Poister.

Sincerely, Dennis K. hthbun.. Director.

Office of Congressional Affairs cc:

Sen. Alan K. Simpson-r 4

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1he Hcnorable Peter H. Kostmayer, Chairman Suhe--it te on Energy and the Environment Co--ittte on Interior and-]nsular-Affairs United States House of-Representatives Washington, DC 20$15

Dear Mr. Chairmon:

1he Nuclear Regulatory Commission (NRC) amended its Fitness-fcr-Duty Rule

[10CFRPart26onAugust 26, 1991 56FR41922)). The amendment clarified the NRC's intent concerning the unac(ceptability of taking actions against an o

individual that is based solely on the preliminkry results of a drug screening.

test and to permit, under certain conditions, employment actions,:up to and including the action of temporary removal of an individual from unescorted access or from normal duties, based on an unconfirmed positive result from'an-initial screening test for marijuana or cocaine. This rule became effective-en September 25, 1991,-except for the information collection requirements.-

contained in i i 26.24(d)(2) and 26.71(d).

The Office of Management and Budget (OMB) limited its approval of the-informaticn collection contained in 6 26.7)(d) to those licensees who choose to percise the option of temporarily removing an individual'froml unescorted access or fres normal. duties based en an unconfirmed positive test result.-

Enclosed for your information is ~a copy of the withdrawal of NRC information collecticn reqJirements approved by the Commission.for publication in the federal Feoister.

Sincerely -

1:

Dennis K. Rathbun, Director Office-of Congressional' Affairs

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WASHINGTON. D, C. 20656 1he Honorable Phillip R. Sharp, Chairman subcom.iuee on [nergy and Power itt u ca. tra rgy and Comerce m

United States House of Representatives Washington, DC 2n515

Dear fir. Chairman:

The Nuclear Regulatory Commission (NRC) amended its Fitness-for-Duty Rule

[10 CFR Part 26 on August 26, 1991 56 FR 41922)). The amendment clarified the fiRC's intent concerning the unac(ceptability of'taking actions against a test and '.o permit, under certain conditions, employment actio including the action of temporary removal of an individual from unescorted access or from normal duties, based on an unconfirmed positive result from an initial screening test for marijuana or cocaine.

on September 25, 1991, This rule became effective cor,tained in i 5 26.24(d)(2) and 26.7)(d).except for the information collection requireme The Of fice of Management and Budget (OMB) limited its approval of the inferraticn collection contained in i 26.7)(d) to those li:ensees who choose to exercise the option of temporarily removing an in<tividual from unescorted frce normal duties based on an unconfirmed positive test result.

access or Enclosed for your information is a copy of the withdrawal of NRC information collecticn requirements approved by the Commission for publication in the-fe % ral F W ster.

Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs cc:

Rep. Carlos J. Moorhead

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%R ite Honorable Bob Graham, Chairman Subcomittee on Nuclear Regulation Identical letters were sent to Committee on Environment and Public Works Rep. Peter Kostmayer and United States Senate Rep. Philip Sharp Washington, DC 20510

Dear Mr. Chairman:

The tuhar Regulatory Commission (NRC) amended it4 Fitness-for-Duty Rule

[10 CFR Part 26 on August 26, 1991 56 FR 41922)]. The amendment clarified the NRC's intent concerning the unac(ceptability of taking actions again individual that is based solely on the preliminary results of a drug screening test and to permit, under certain conditions, employment actions, up to and including the action'of temporary removal of an individual from unescorted access or from normal duties, based on an unconfirmed positive result from an initial screening test for marijuana or cocaine. This rule became effective on September 25, 1991, except for the information collection requirements contained in 6 6 26.24(d)(2) and 26.7)(d).

The Office of Management and Budget (OMB) limited its approval of the information collection contained in i 26.71(d) to those licensees who choose to exercise the option of temporarily removing an individual from unescorted access or from normal duties cased on an unconfirmed positive test result.

Enclosed for your information is a copy of the withdrawal of NRC information collection requirements approved by the Commission for publication in the federal Fnister.

Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs cc:

Sea. Alan K. Simpson

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Distributiero Central Files W. T. Russell NRC & Local PDRs F. J. Congel PSGB r/f OGC EDO r/f OCA (3)

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PDR Federd Regist:r / Vol. 57. No. sas / Wedmeeder Nevmeber as, lasz / RAes cnd Rapalatbns 55443 U

7 poa Pvemen serosissarson coerf acti.

4appeesl ef the infannation conectAon

. C" of absee reqdsoments only Robert Miller. Acting Director, requisemente mestansed le i E71[dl ef, to home Beensees subo shoose to Processed Products inspectbo Dietolon, the taal rule enetlei'7itnema.for Duty enerdes to spese of temporarity Science & Technology, Food Safety and Propams"(Angest 38, tert: to FR esamoste se imeddeel as permitted by Insneet2on Setvice. U.S. Department of 411t:2) W Commitsbn is wtthdrewirts I as.34(dxg).

Agneult ure. Washingt on. DC 2029] (202) the remetning of I Entd)

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%M bemese them nu emapelthqi need ler ' inforsesiasi M ountained in

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sum.rmXr AMY 4NFQeuMT)Det Og the ed@lbonel data ei this lhnt.

I anf1(d)ChEB tediosted that the NRC August 21.1tr22, the Food Sefety ar.d speectwe sists:heinfarenation faBed k deemsstrek a apapemns need i

inspection Service pubbshed a final rule collection requirementa la for he does tw tese borneen nM i

($7 FR 37869)f the Federal mest andthat amended il 318.300 6 36.34(d)[2X3v) and in sevloed E71(d) ' anaking temporary empenska bued on and 381.3m o beconne effectin Deceenber 34,1992.

amelk psesempWn pomun kat ruults poultry ducts inspection regolations pos puerresem essensaaviam couriect:

fw @a ad b mch OMB alp that ed. resa the enamtnation of Eugene W.McPeek.Reacter '

gag,,g,g het b repardag n

finished. thermally-procened, shelf Branch, Division of Radiatim Safety

- susind ad han deled stable canned product.Wre was en and Omos of Nuclear

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Q* utih'I o osahrbal'" b error in the amendetory instructions for Reactor tion, LLE. Neclear both sections 316 309 and 361.309 that Regulatory f%===Maa Waabiagion, regulated ty. Om"fand it i

will be corrected as foliows-DC 30664, T=3aph=== (301) 306-321tL assenaenable fo* the NRC to seguest isis.soe icwmeeoo1 supptma m mva nt mesessaAsseet 0 "

- that I-emineet, analyse. and sa, to On page 3?872, under part 318. the h

p siebedt data to es agensqr Ear the P

a mendatory instructions for itean 2.

purpose of agency d=>=ka*=

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"Section 318J09 is amended by revielag Je possibly hoip isaare b NRC's hm--

'-- dw paragraphs (b). (c). ud (d)(1)(vlii) to read as follows."is corrected to road as unaeoeptabikty of taking actism spinal regalatory ph See indnested est abe NRC shoekt eehens dMa when

,, gvidual est is bued eslaly en 6e "Section 318 EG is amended by avia14 pararaphs (bl. (c). and the first p,,1tmgn,q,,,gg g, g,g

amanary to seeleste a speanc sentence of paragtsph [d)(1Xviti) to read test and to perueit. madar cartsia jugadstery comm est Amm a-==

agg 0849 moted that the sour does was as f allows,.

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g etrendy semeeWe e toInc. and est tf

$as1.309 fCairwesedJ temown! of am nadividual bosa ene NRC bed a sempeRios amed let the

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On page sta:2. under part 3st the eneooorted sooess or frees aermal S.

dela, k ese a to meansary l

g smendatory instructions for item 2, duties, based on an unocafirmed analysis sehg to esw deek OMB -

"Section 381.300 is amended by revising poeltive teeull from en initial sureseting suggated em h m ee h p e paragraphs (b). (c). and (ditt)(vtill to test for marijuana or cocaina.%Is rule adde 46emaldets esse maasseery to read as follows:"is corrected to reed as became effecttw an 4 - i -- 28,19et, celusk opdc spdowry eenema. die

• Section 381309 La amended by reviaiag except for the infwsmation outocean NRC may subsalt '

^ estacean requesteseneedmL AAtar pararraphs (b). (c) and the fitst requiremente contetnsd in sentence of paragraph (d)(1)(vill) to read il as.ne(dRr)(tv) and art (d).

sooanoideration of the matter, the NRC g'

bas dedded diet it does not han a as follows:-

On Demmber 31. test, the DmC submisend a sageset Aar 06dB mmw el eempshg aseHar be data at Wa Done et % anhinston. DC on. Nevesnhet 14, the inforunation collecoon requireewats alme.

y DEald 1. wEte By a Federal Regletar Nonee pebbehad

. A A-.Ib=al above, b sevlalon to to on January 14,1992 (57 PR 1497) NRC -. DR asfald)la b sesah of an OMB

%%,%ugg aqmwd puWe ennente on tie doenraination onder abe Paperwork hspecuon serm, tecort! keep ng and a;.4 i

p requiremania Followias reselpt ela " ~ Reducties Act,loBewig receipt of

[rR Doc. st-: wet Pued li-a+-et stes sm) a pubtc aa===at entation of the

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c comment. OMB. in a letter dated May povidon, whd aknitna b k,

- '26 1992 which was amended on July 30

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h PP' g sart{d is the NRC's NUCLEAR REGULATORY 9n "9uinen dla aneurance of compliance with 10 CFR COMMLSSION l 26.24(d)(2)(iv). hee requirements

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{M E*' h 10 CFR Port 26 concern taasseamme to the indsvideaal good cause Ibst additional that no records haeo been seemised RtN 3166-AD61 which could link the ladividual to a puWe cosmet le massessen W h -

dioeld due bd Publishing the revised to CFR 3BJ1(d) g.'" Q es a final rule, effective 30 days after k

Fitness.for-Dvty Programs NRC Perttal Withdrawat of NRC Information MdXW deerefore, semiske

'Pobtlmtion of this notica

1. 1. 1. '" W'**'"I' unchanted and beoemee en eGecthe Enviremmastel aspeet: ' '+ al aorwev: Nuclear ReFulatory rule 35 days eher iM ^ - sf th6s p.a.a r

Commission notlee. -

he NRC has detensined that this y i g " gig OMB, however, at the seme time onNguIg(,

limited fin appmvel of the additional hhat sets to to type of seekm descrbd

4er, colh emer s information u,LL contained in in categorical exclusion 10 CHL Sunnd 4Rv:The Comenisson has l E7t{d) Wee provisions required the 81.23(cX3)(ll). %erefore, neither an reportmg of test results by process sta= enviroatoestalimpact statement not en oHained OMB appeoval for the information collection requirments and management acticms ce appeals sad environmental anaessment has been conteined in i to.24(d}f 2)(iv) and partial. thetr resohreons. OMB spproved proceed tw this itsel rule.

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Paperwork Reduction Act Statement

etarUtard form and suNnit this dala D id.5.a, Mand ibereunder,

%e fmal rule amends infortnet on the Commission within to de)e of the encompassing approatmately 4K4 end of each 6 month reporting period,., equare nautical snues in and sunoundmg collection requirements that are subject to the Paperwork Reduction Act of1900 Canuarpjune and July-December).%e Monterry Bay, off the central coast of (44 U.S C. 3501 et seg ) The6e data for each she (corporate and other

'Califorsda,he motice of designation requirerne tas wr te apprcied b the support etaff locations may be '

and the final seguistions implementing separately mnsWated) must W&emndorn testing rete, drugs tested Olhce of Manatement and D get sp;,roval number 315/bO146 W rule withdrawe c*rtain reporimg cut offleveld, including resuhe of testa publiabad in Sie Fede sl Register on requirements contained in i 2611(d) using lower cut offlenia and tests for September 18,1982 (67 TR 43110).

OMD othn drugs; worUwce populanons On November 4.1992, the President that w cre daspprm ed dunnflection tesM nabes d tests and de by.,, alsnad into lsw liA Self (pub. l.102-review of the mforrr ation co requirements contained in the final rule, populeuan, am W est k p w -

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• • *9' pro)v. w e, asemg et ers saattert,

'Titntn-for-Ds.ty propams." issued secess,tendpun w-caesus,etc) ides that the Orsignation of the August 20.1Ms (50 FR 41W2). W substances identified, pummary of Monterry Bay Noticmal Marine teduction in pubbe reportmg burden management acuant and a k af ennts_ Sanct shall take effeict Septernbet resultmg from tbs rule is estimated to npord W data musW anaW 84, itse2.

mee llA 6617 abd set and appropriate actions taken to correci spedlically provide an effective date for averste 17.5 hnts per response,per aflected hernsee. Includmg the time for program inabesses.m data and the Sanctuary regulations. this notice reviewmg metructions, searching analysis une wtatewd fw dm,, eetab!!ahes the effecttre este of the Fears. An heensee daooshg to y sospend tadhe unew"; segulations.

s existing data sourus. gathertng and meinteming the data needed. and 6cmpwe

,,, g7,,,,,,, g. regulations completmp and eenewing the collection the prortsions of i 2tL34(d) anest report gg g,p of information. Send comments test results process stage (l.s 6mette subchapters A and B and part M4 on

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. 'Geptember 14,1se2 (t? TR 42310) shall regardmp this burden cettmate or any

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other arrect of this collection of g

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f hr n re ort ng the imPWary 8**pmelone w other y mmmm emenAmns cennact '

information and Records Management administredn Mons taku meaM Rafad V, Wa, Mc WM individuals based on analte unconhrtmed Manager, Sanctuaries and Resenes Branch (MNDIL7714) ion S Nuc. lear screening pos16ves for unerttoene (IllC) Dtvision. Office of Ocean end Coastal U

Regulatory Commiss Washington, and for cocaine.

Resource Management. National Ocean DC 20555. and to the Desk Ofhccr, Bervloe, National Oceanic and Office of information and Regulatory Deted et Packvale, MD, thle Mb day of Aff airs, NEOIL3019. (3150-o160). Ofhce Nwember tsat AtmpM AdminisMonda25 Carmedicut Avenue, NW, seite T14.

of Management and Dudset' For the Nuclear Ravelstory es -

Washington. DC 20503, pommes M. Teynss, b

.Wa 288,(WM4 8" M Ust rsf Subjects in 10 CIT Part 26

{T1t Doc.nFaseso Pned Ihae-t%4 mm) : E Dasener Wilmen.

i Alcohol abuse. Alcohnllesting.

Auhtant.Wnktratorkr acan Servkes ca m.

I Appeals, Chemical testing. Drug abuse, and Coasta/Tane Monogement Drug testms. Dit o)ce assistance

~T~- ~ geR Doc.33-ame64 Fued 11 M-ac, t es arri)

~ ~ - ~

l propams. Fitness for duty. Management DEPARTneDfT CF COtstAERCE,

ami=== cens se*4em actions Nuclear power reactors, i

protection o. information, Reposting and teettonal Ocoenic and Atsmoepheric l

ret.ordk ecping requirements.

Adm6nnstration

.*4

• OF MTptD NON

• • d and n auti o it the At mic' 5 and pen Diergy Act of1954, a: amended, the

.i PWed and Drug Admirestration E.nergy Reorganization Act of 1974, as (Docket No.tect23-303Cl 4 '-

arnended, and 5 ti S f' M2 and $53, the 21 Cm Part 172 MN NRC is adopting the following w

t, amendment to 10 CFR part M teoi W Dey Deodorud M erh e N.; _;(DestistMa687T-43341

^

PART 2fr-TTTNESS-FOR-OtJTY Sanctuary W v - -'

Food A6dtttves Permitted for Cerect PROGRAMS Atencr, Office of Ocean and Coasta)

Addition to Food for Human Resource Managetment (OCRM),

Consumpt60n; Goten Gum uon an 8en OS abonal cont ur

,1 F

as foi ow Aeency: Food and Drug Adrninistration, g

IUIS' l

Authority sn 1e1 m stat 948 ee Adininistration (NOAA), Comraerce.

PlaNeale.

amended (42 U S C :201) acc 2c) se Stat.

Nogee W{e e da te, r

1:41 as amended (4 U.5 C. SMt).

2. In i 26 71 parapaph (d)is revised to sunensAsry:On September 2L1902 the

.===a my: W Food and Drug read as follewa:

Under Socntary of Ccenmetce for Administration [PDA)is amending the Oceans and Atmosphere transmitted the food additive regulations to provide for notice nf deal nation for the Monterey

,the safe use of pellan gum as a stabihrer l 26.71 Recath eeparig requerosnenta, Bay National Marine Sanctuary to and thickener in foods, penerally, ma (d) Collect and compile fitnen.for.

Congress.The Sanetuary la an area of action la in response no a petition filed i

duty prmam performance data on a ocean and coastal waters, and the by Kelco, e Division of Mert.k & Co.,Inc.

o I

i l

. --_n,

' AD61<2 9

PDR W =r 2, 1992 The Honorable Bob Graham. Chairman Identical. letters were sent to i

Subcommittee on Nuclear Regulation Rep. Peter Kostmayer and-Committee on Environment and Public Works Rep. Philip Sharp United States Senate Washington, DC 20510

Dear Mr. Chairman:

The Nuclear Regulatory Commission (NRC) amended its Fitness-for-Duty' Rule

[10 CFR Part 26 on August 26, 1991 56FR41922)).

The amendment clarifted i

the NRC's intent concerning the unac(ceptability of taking actions again individual that is based solely on the preliminary results of a drug screening

'i test and to permit, under certain conditions, employment actions, up~to and including the action of temporary removal of an individual from unescorted.

access or from normal duties initial screenin based on an unconfirmed positive result from'an on September 25,g test for ma,rijuana or cocaine. This rule became effecti 1991, except for the information collection requirements contained in 6 6 26.24(d)(2) and-26.7)(d).

l The.0fficeofManagementandBudget(OMB)71Cd)tothoselicensee information collection contained in i 26. limited its approval' of the o choose to exercise the option of temsorarily removing an individual from unescorted access or from normal duties pased on an unconfirmed positive test result.

Enclosed for-your information is a co)y of the withdrawal of NRC information collection requirements approved by tne Commission for publication in the Federal Reoister.

J Sincerely, original sigmd by/

Dennis K. Rathbun, Director Office of Congressional Affairs cc: Sen. Alan K. Simpson Distribution:

~

Central Files W. T. Russell NRC & Local PDRs F. J. Congel PSGB r/f OGC

'E00 r/f _

OCA (3)

J. M. Taylor P. f. McKee T. E. Murley L.lL. Bush j

F. J.,Miraglia E. W. McPeek V DRAFT OF LETTER WAS APPROVED AS PART OF RULEMAKING PACKAGE SENT TO EDO.

Off4ce PSGB:NRR PSGB:NRR' BC:PSGB:NRR D:0CA-Name EMcb LLBusb' INFNcK I /

DRathbun Re Date' 11//D/92 11/4 /92 11/A/92-11/ /92 m1r/r/ SP08 L 1

---we g

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1. 1-

[7590-01)

NUCLEAR REGULATORY COMMISSION 10 CFR PART 26 RIN 3150-AD61 Fitness-for-Duty Programs: NRC Partial Withdrawal of HRC Information Col'lection Requirements AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule:

Status of information collection requirements.

SUMMARY

The Commission has obtained OMB approval for the information collection requirements contained in-6 26.24(d)(2)(iv) and partial app the information collection requirements contained in i 26.71(d) of the f rule entitled, " Fitness-for-Duty Programs' (August 26, 1991; 56 TR 41922).

'The Commission is withdrawing the remaining portion of i 26 use-there is no compelling need for the additional data at this time.

EFFECTIVE DATE:

The information collection requirements in i 26.24(d)(2)(iv) and in revised 26.7)(d) become effective (30 days after the date of publication of this notico).

f &lh

. FOR FURTHER INFORMATION CONTACT:

Eugene W. McPeek, Reactor Safe 0uards Branch, Division of Radiation Safety and Safeguards, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555 Telephone (301) 504-3210.

SUPPLEMENTARY INFORMATION:

On August 26,1991 (56 FR 41922), the Nuclear Regulatory Comission (NRC) amended the regulations that clarified the NRC's intent conce unacceptability of taking action against an individual that is based solely the preliminary results of a drug screening test and to permit, under ce conditions, employment actions, up to and including the action of tem removal of an individual from unescorted access or from normal duties, ba on an unconfirmed positive result from an initial screening test for marijuan or cocaine.

This rule became effective on September 25, 1991, except for the information collection requirements contained in $$ 26.24(d)(2)(iv) and 26.71(d).

On December 31, 1991, the NRC submitted a request for OMB review o the information collection requirements.

By a Federal Register Notice pubitshed on January 14, 1992 (57 FR 1497) NRC requested public comments on the record keeping and reporting requirements.

Following receipt of a comment, OMB, in a letter dated May 26, 1992, which was amended on July 20, 1992, approved the information collection requirements contained in 6 26.24(d)(2)(iv).

These requirements _ concern assurances to the individual' that no records have been retained which could link the indiv temporary suspension should the test results be negative.

_ _. Section 26.24(d)(2)(iv), therefore, remains unchanged and becomes an effective rule 30 days af ter publication of this notice.

OMB, however, at the same time limited its approval of the additional information collection contained in i 26.7)(d). These provisions required the reporting of test results by process stage and management actions on appeals and their resolutions. OMB approved application of these requirements only to those licensees who choose to exercise the option of temporarily removing an individual as permitted by i 26.24(d)(2).

In disapproving the additional information collection contained in i 26.71(d), OMB indicated that the NRC failed to demonstrate a compelling need for the data for those licensees not making temporary suspensions based on onsite presumptive positive test results for marijuana and for cocaine.

OMB also indicated that the reporting requirements would not have sufficient practical utility to counterbalance the burden they would impose on the regulated community.

OMB found it unreasonable for the NRC to request that licensees collect, analyze, 'nd submit data to the agency for the purpose of a

building an agency database to possibly help address future regulatory problems. OMB indicated that the NRC should collect data when necessary to evaluate a specific regulatory action, not future concerns.

OMB noted that the raw data was already available to the NRC, and that if the NRC had a compelling need for the data, it could conduct the necessary analysis using the raw data. OMB suggested that if at some future point additional data was necessary to evaluate specific regulatory actions, the NRC may submit inforcation collection requests as needed. After reconsideration of the

. matter, the NRC has decided that it does not have a compelling need for the data at this time.

As described above, the revision to 10 CFR 26.7)(d) is the result of an OMB determination under the Paperwork Reduction Act, following receipt of public comment.

" Implementation of the revision, which clarifies a limit on the effective scope of provisions in i 26.7)(d), is important to the NRC's assurante of compliance with 10 CFR Part 26."

Accordingly, the Commission for good cause finds that additional public comment is unnecessary and is publishing the revised 10 CFR 26.71(d) as a final rule, effective 30 days after publication of this notice.

Environmental Impact:

Categorical Exclusion

, The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(3)(ii). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule'.

Paperwork Reduction Act Statement This final rule does not contain new or amended information collectio requirements subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

Existing requirements were approved by the Office of Management and Budget approval number 3150-I l

1 l

, List of Subjects in 10 CFR Part 26 Alcohol abuse, Alcohol testing, Appeals, Chemical tes*,ing, Drug abuse, Drug testing, Employee assistance programs, Fitness for duty Hanagement actions, Nuclear power reactors, Protection of inforr;ation, Reporting and recordkeeping requirements.

For reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1 as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendment to 10 CFR Part 26.

PART 26 - FITNESS-FOR-DUTY PROGRAMS 1.

The authority citation for Part 26 continues to read, in part, as follows:

AUTHOR 11Y:

Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).***

2.

In i 26.71 paragraph (d) is revised to read as follows:

I 26.7) Recordkeeping requirements.

(d) Collect and compile fitness-for-duty program performance data on a standard form and submit this data to the Commission within 60 days of the end of each 6-month reporting period (January-June and July-December).

The data for each site (corporate and other support staff locations may be separately consolidated) must include: random testing rate; drugs tested for and cut-off levels, including results of tests using lower cut-off levels and tests for I

, other drugs; workforce populations tested; numbers of tests and re population, and type of test (i.e., pre-access, random, for-cause, etc.)

substances identified; sumuary of management actions; and a list of eve reported.

The data must be analyzed and appropriate actions taken to corre program weaknesses.

The data and analysis must be retained for three years.

Any licensee choosing to temporarily suspend individuals under the pr of i 26.24(d) must report test results by process stage (i.e., onsite screening, laboratory screening, confirmatory tests, and HR0 determi and the number of temporary suspensions or other administrative actions again*t indiseduals based on onsite unconfirmed screening positives for marijuana (THC) and for cocaine.

Dated at Rockville, Maryland, this 4

day of November 1992.

for the Nuclear Regulatory Commission, sM.Tayfr.

w at Ex cutive Director for Operations 4

9 i

%, c'e c c /.[_T f_____-

_..m,,n m uu cn i vM rCOMMISSION

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CAsHawltoN C.c.

ss Thompson v/

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dd $l-l Blaha l

ornetortHe August 24, 1992 00$

Cranford, IRM stentrany Shelton, IRM j

Heyer, ADH McKee, NRR Bush, NRR HEMORANDUM FOR:

James H. Taylor Executive Direc r

or Operations FROM:

Samuel J. Chilk

SUBJECT:

SECY-92-268 - PARTIAL DISAPPROVAL OF OFF OF MANAGEMENT AND BUDGET (OMB) CLEARA FINAL RULE, 10 CFR 26, FITNESS FOR DUTY This in to advise you that the Commission has not objected t staff proposal to prepare a rule change withdrawing the reportin o the requirements disapproved by OMB.

g (NRR) 9200187 cc:

The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque OGC OCAA OIG SECY NOTE:

THIS SRM AND SECY-92-268 WILL BE MADE PUBLICL AVAILABLE 10 WORKING DAYS FROM THE DATE OF SRM 24'ffTf(iT(f.f