[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 502-507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-131]


[[Page Unknown]]

[Federal Register: January 5, 1994]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

RIN 3150-AE38

 

Modifications to Fitness-For-Duty Program Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations governing fitness-for-duty (FFD) programs that are 
applicable to licensees who are authorized to construct or operate 
nuclear power reactors and to licensees authorized to possess, use, or 
transport formula quantities of strategic special nuclear material 
(SSNM). The amendment permits licensees to reduce the random testing 
rate for all persons covered by the fitness-for-duty regulations to an 
annual rate equal to 50 percent.

EFFECTIVE DATE: January 1, 1994.

ADDRESSES: Copies of the regulatory analysis, the comments received, 
and the Government Accounting Office (GAO) report (GAO/GGD-93-13) of 
November 1992 may be examined at the NRC Public Document Room, 2120 L 
Street NW, (Lower Level), Washington, DC.
    Copies of NUREG-1354, NUREG/CR-5758 (Volumes 1, 2, and 3), and 
NUREG/CR-5784 may be purchased from the Superintendent of Documents, 
U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-
7082. Copies are also available from the National Technical Information 
Service, 5282 Port Royal Road, Springfield, VA 22161. A copy is 
available for inspection and/or copying for a fee in the NRC Public 
Document Room, 2120 L Street NW, (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Loren L. Bush, Jr., Safeguards Branch, 
Division of Radiation Safety and Safeguards, Office of Nuclear Reactor 
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
telephone: (301) 504-2944.

SUPPLEMENTARY INFORMATION:

Background

    The NRC has reviewed experiences gained since publication of the 
current FFD rule on June 7, 1989 (54 FR 24468), and implementation by 
power reactor licensees on January 3, 1990, and determined that it may 
be appropriate to modify the random testing rate. Accordingly, on March 
24, 1993 (58 FR 15810), the Commission published a proposed 
modification to the FFD rule that would permit a reduction in the 
random testing rate for licensee employees, but maintain the 100-
percent random testing rate for contractors and vendors.

Summary of Public Comments

    The comment period expired on June 22, 1993. Forty comment letters 
were received. Twenty-eight were from power reactor licensees, six from 
unions, one from an industry association, one from a vendor, three from 
licensed reactor operators, and one from a private citizen. There was 
overwhelming support for the proposed reduction in the annual rate of 
random testing for licensee employees. Most of the commenters believed 
that the reduced rate also should apply to contractors and vendors, and 
several commenters proposed a flexible, performance-based rate. There 
was no support for excluding from any reduction in the random testing 
rate certain positions critical to the safe operation of a nuclear 
power plant, such as licensed reactor operators. A summary of the 
comments received and the NRC's responses are presented below.
    1. Comment. The random testing rate for licensee employees should 
be reduced to 50 percent.
    All of the 23 commenters submitting comments on the Commission's 
proposed reduction of the random testing rate to 50 percent for 
licensee employees supported the proposal. The reason most often 
expressed was the low rate of positive random test results experienced 
by licensee employees, particularly in comparison with other industries 
having significant safety concerns. These commenters believe that this 
low industry-wide positive rate justifies the lowering of the random 
testing rate to 50 percent. Some commenters stated that a 50-percent 
rate for licensee employees would make that rate consistent with the 
random testing rate currently required in the substance abuse programs 
mandated for entities regulated by the agencies within the Department 
of Transportation (DOT), including the Federal Aviation Administration 
and the Federal Highway Administration. They also noted that DOT is 
currently considering lowering its proposed random testing rate below 
50 percent even though Federal Highway Administration data, for 
example, indicate a significantly higher positive rate than that 
experienced among NRC licensee employees. Another commenter pointed out 
that the lowered random testing rate for licensee employees subject to 
the NRC's FFD rule also would be consistent with the random rate 
applied in the Commission's own internal drug testing program.
    Other commenters supported the reduction with the expectation of 
significant cost savings for licensees as a result of only testing 
approximately one-half the number of employees now being tested. In 
this regard, the Nuclear Management and Resources Council (NUMARC) made 
reference to the November 1992 GAO report, ``Employee Drug Testing: 
Opportunities Exist To Lower Drug-Testing Program Costs'' (GAO/GGD-93-
13), which suggests reduced random testing rates as a means of 
producing cost efficiencies in Federally mandated drug testing programs 
without adversely affecting program integrity.
    Concerning the relative effectiveness of alternative random testing 
rates, some commenters believe that a 50-percent random testing rate 
would produce satisfactory deterrence of drug and alcohol abuse. This 
is particularly true in light of the fact that other FFD program 
elements, such as program awareness training and behavioral 
observation, and the access authorization program will continue to 
inhibit such behavior. Two commenters also supported the proposed 
change because it would lessen the disruption of workers lives and 
reduce the invasion of privacy that random drug testing creates.

NRC Response

    The NRC concurs with those commenters who stated that a 50-percent 
random testing rate as applied to licensee employees can be expected to 
provide sufficient deterrence to justify lowering the rate at this 
time. It also agrees with the observation that the access authorization 
program and other FFD program elements, such as policy communications 
and awareness training, behavioral observation, for-cause testing, 
employee assistance programs, and the imposition of strict sanctions 
for violations of an FFD policy will continue to deter drug and alcohol 
abuse by most of the workforce. As some commenters noted, requiring 
fewer tests of licensee employees should decrease the privacy invasion 
experienced by some employees. It also should result in cost savings 
across the industry by reducing lost work hours and the number of tests 
to be administered.
    The Commission recognizes that positive results in the nuclear 
power industry's random testing are generally among the lowest of any 
U.S. industry. Nonetheless, it realizes that there are many variables 
that can affect the rate of positive testing results and that 
relatively low positive test results, by themselves, are not the only 
indicator of the effectiveness of a testing program either on an 
industry-wide or a licensee program level. Some of the variables that 
could affect the testing results are the propensity of the population 
being tested to use drugs and alcohol, the effectiveness of other 
program elements, and the extent to which tested employees have been 
successful in subverting the testing process and avoiding detection.
    The NRC does not have sufficient information about these or other 
factors that may influence testing results to be able to determine that 
the decreasing positive rates reported by licensees are an unqualified 
indication of FFD program effectiveness. Nonetheless, the Commission is 
gratified to observe the decreasing positive rates in licensee 
employees' random test results during the past three years. The 
recently published NUREG/CR-5758, Volume 3, ``Fitness for Duty in the 
Nuclear Power Industry: Annual Summary of Program Performance 
Reports,'' indicates that licensee employees' positive random testing 
rate in 1992 was 0.20 percent as compared to 0.28 percent in 1990 and 
0.22 percent in 1991. There also have been decreasing positive rates 
for random testing of contractor and vendor personnel, viz., 0.56 
percent in 1990, 0.55 percent in 1991, and 0.45 percent in 1992.
    In making its decision, the Commission has considered these testing 
results along with the apparent continuing strength of the other 
elements of most licensees' FFD programs, the reduced invasion of 
employees' privacy interests, and the potential for cost savings. In 
light of this industry experience and of these beneficial effects, the 
Commission has concluded that it is reasonable at this time to lower 
the random testing rate for licensee employees and contractor and 
vendor personnel to 50 percent. The response to Comment 4 discusses the 
Commission's reasons for allowing reduction in the random testing rate 
for contractor and vendor personnel.
    2. Comment. The random testing rate should be reduced to less than 
50 percent.
    Four commenters recommended that the random testing rate be reduced 
to less than 50 percent. The rates they recommended varied from 5 
percent to 25 percent. Their central argument was that the random 
testing rate can be lowered substantially without threatening the 
effectiveness of the program. The very low rates of drug and alcohol 
positive tests that have been recorded by the nuclear industry during 
the first two years of FFD program operations are the basis for their 
recommendation. One licensee stated that most chronic drug users 
probably have been eliminated and currently there is not a serious drug 
or alcohol abuse problem in the industry. This commenter and NUMARC 
also cited the GAO study that found that the percentage of positives 
does not vary significantly among Federal agency drug testing programs, 
regardless of what random rate is used. Another licensee emphasized 
that behavioral observation, not random testing, is the most potent 
tool in detecting drug abuse. Another commenter recommended that the 
NRC consider further reductions because the effectiveness of other 
program elements makes a random rate of even 50 percent unnecessarily 
high.
    Significant cost savings was given as the most compelling reason to 
reduce the random rate below 50 percent. One licensee estimated the 
industry would save up to $30 million annually without degradation of 
the overall program.

NRC Response

    As stated in the response to Comment 1 above, positive random 
testing results are not, by themselves, the only indicator of the FFD 
program's effectiveness in detecting substance abuse. The NRC does not 
have sufficient information about the many variables that could affect 
testing results to be able to determine that a lower random testing 
rate would maintain an acceptable level of program effectiveness. 
Therefore, the Commission believes that the industry's relatively low 
numbers of drug and alcohol positive random test results should not be 
used as the sole justification for lowering the random testing rate 
below 50 percent. While behavorial observation and for-cause testing 
are valuable program elements, there still must be a strong random 
testing program that provides an adequate level of detection and 
deterrence. The Commission continues to believe that it must choose a 
conservative and prudent random testing rate that maximizes both 
detection and deterrence of substance abuse while minimizing the 
monetary and social costs of such testing. The Commission believes that 
a 50-percent random testing rate will strike the proper balance between 
the dictates of public health and safety, the financial needs of 
licensees, and the privacy and other interests of workers subject to 
the testing requirement. Given the substantial unknowns currently 
associated with the true detection and deterrence effectiveness of 
alternative random testing rates as applied to the particular 
conditions of the nuclear power industry workforce, the Commission 
believes that it cannot establish a random testing rate lower than 50 
percent for any segment of the industry at this time.
    It should also be noted that relatively low positive test rates do 
not necessarily indicate that there is not a drug and alcohol abuse 
problem, as some commenters asserted. First, some users have become 
adept at avoiding detection, and the use of increasingly effective 
subversion techniques may be one reason why random testing results are 
decreasing. Second, while it may be that most of the chronic drug users 
who were in the industry when the program started have been detected or 
have left, there can be expected to be a continuing level of 
intermittent illegal drug use and alcohol abuse among industry 
employees; such use is difficult to detect. The Commission concludes 
that the low positive random test results do not indicate that there 
has ceased to be a drug and alcohol abuse problem and that further 
reduction in the random testing rate would not be appropriate at this 
time.
    In response to the commenters' reference to the GAO's observation 
that the percentage of positives does not vary significantly among 
Federal agency drug testing programs, the NRC notes that the GAO's 
objective in that report was to identify potential cost savings in 
Federal employee drug testing programs. Its objective did not include 
determination of the relative deterrent values of alternative random 
testing rates. In accomplishing its objective, the GAO properly 
concentrated on only the costs associated with Federal employee drug 
testing. It did not perform an indepth analysis of the several 
variables that influence testing results nor of the very complex 
relationship between those variables and the deterrence value of 
testing. Such variables would include the inclination for drug or 
alcohol abuse among the employees in the various industries in which 
the Federal testing programs operate, the extent to which the strength 
and effectiveness of other, non-testing program elements, such as drug 
awareness training, may affect testing results, and the relative 
stringency of sanctions imposed by the various Federal agencies 
following positive test results. Because the GAO's objective was to 
address the cost rather than the deterrence effectiveness of testing, 
the NRC does not consider the commenter's reference to the GAO's 
observation to be a persuasive argument for reduced random testing 
rates.
    The NRC will continue to monitor implementation of the rule and 
will modify the rule in response to industry experience, advances in 
technology, or other considerations to ensure that the rule is 
achieving the general performance objectives set forth in 10 CFR Part 
26.
    3. Comment. The random testing rate should be flexible and based on 
performance, such as the positive rate of random testing.
    Twelve commenters recommended that the Commission allow some form 
of performance-based approach to determine the random testing rate. 
Under such a system, the random testing rate would vary over time. This 
would depend on each licensee's or, alternatively, the industry's 
positive random test results from a previous period. One licensee, for 
example, suggested that each licensee's random testing rate should be 
based upon that particular licensee's previous 12-month testing 
results. Under this approach, a licensee would be subject to a minimum 
50-percent random testing rate if it experienced a positive rate of 
greater than 0.50 percent during the previous 12 months. That licensee 
could reduce its random rate to 25 percent if it subsequently had a 12-
month positive rate between 0.25 percent and 0.50 percent or to as low 
as 10 percent if its positive rate for the previous year was less than 
0.25 percent. Three other licensees recommended similar schemes whereby 
a licensee's random rate would be determined by its own record of 
positive test results. One of these recommendations based the rate on 
the results of the previous 2 years rather than those of the previous 
12 months.
    NUMARC proposed that the industry-wide random testing rate be 
determined by the industry-wide random testing results from the 
previous period. This recommendation was endorsed by five licensees. 
Under NUMARC's proposed approach, the industry would be allowed by 
regulation to adjust its random testing rate based on testing results 
from the previous reporting period. All licensees would be required to 
test at a 100-percent random rate if the industry-wide positive rate 
were greater than 1.0 percent in the previous period, at a 50-percent 
random rate if the positive rate was between 0.50 percent and 1.0 
percent, at a 25-percent random rate if the positive rate was between 
0.25 percent and 0.50 percent, and at a 10-percent random rate if the 
positive rate was less than 0.25 percent. Two of the eleven licensees 
favoring a performance-based testing system provided a general 
recommendation that did not specify whether the random testing rate 
should be based on the positive testing results of each individual 
licensee, or on the results of the industry as a whole.
    The commenters noted various potential advantages of adopting a 
performance-based approach to setting the random testing rate. One 
stated that adopting such an approach would be consistent with the 
NRC's initiative to identify performance-based programs that would be 
beneficial to the industry. Another listed cost savings, equity in that 
each licensee's random rate would be commensurate with its program 
performance, and an incentive for licensees to maximize program 
conformance with the FFD rule as advantages of such an approach.

NRC Response

    During development of 10 CFR part 26 in 1989, the Commission 
considered a variation of the flexible, performance-based random rate 
similar to the approaches recommended by these commenters. (See, for 
example, the NRC's response to Comment 7.4.2 in NUREG-1354, ``Fitness 
for Duty in the Nuclear Power Industry: Responses to Public 
Comments.'') At that time, the Commission decided against adopting a 
performance-based rate for various reasons. As stated above, positive 
random testing results are not the only indicator of detection and 
deterrence effectiveness or of overall random testing program 
performance to allow the testing rate to vary with testing results. 
Adopting a performance-based approach would tend to discourage the 
initiatives that the Commission is encouraging in 10 CFR 26.24(b) and 
in Section 2.1 of Appendix A to Part 26. In Sec. 26.24(b), the NRC 
allows licensees to implement programs with more stringent standards, 
for example, lower screening and confirmation cutoff levels and a 
broader panel of drugs than those specified in the rule. In Section 2.1 
of Appendix A, licensees are permitted to test for any illegal drugs 
during a for-cause test or analysis of specimens suspected of being 
adulterated or diluted. Program performance data for the first three 
years of FFD program implementation have shown that those licensees 
using screening cutoff levels for marijuana that are lower than the 
maximum allowed 100 nanograms per milliliter (ng/ml) have had a higher 
percentage of confirmed positive results than those screening at 100 
ng/ml. (See NUREG/CR-5758, Vols. 1-3.) Licensees that employ special 
measures to detect attempts to dilute specimens or flush metabolites 
from the body report that their positive rate is about doubled. This 
result is similar to data presented to the Department of Health and 
Human Services' Drug Testing Advisory Board on June 10, 1993, and 
reported in ``The National Report on Substance Abuse'' on June 18, 
1993. (The study is currently undergoing peer review before 
publication.) Adopting a performance-based approach that allowed 
licensees to reduce their random testing rates as positive testing 
results declined would likely discourage licensees from adopting lower 
screening cutoff levels and taking measures to detect attempts by users 
to avoid detection.
    Lastly, a performance-based approach would require the collection 
and analysis of performance data to provide the bases for adjustments 
to the random testing rate. Such data is not currently collected by the 
licensees or the NRC. Previous efforts known to the NRC staff to 
identify and analyze the many candidate performance indicators for 
measuring the effectiveness of random testing have been inconclusive, 
primarily because of the numerous variables. Furthermore, assuming that 
the proper performance indicators can be developed, it would appear 
that the collection and analysis of data to support a performance-based 
approach would add a considerable administrative burden to both 
licensees and the NRC.
    For all these reasons and until further experience is gained that 
would support a performance-based approach, the Commission declines to 
adopt such an approach to setting the random testing rate.
    4. Comment. The reduction in the random testing rate should be 
applied to all workers.
    Four of the 30 commenters on this issue--three unions and one 
licensee--supported the Commission's proposal that licensees maintain 
the 100-percent random testing rate for contractor and vendor 
employees. Their reasons included a concern for lack of commitment by 
contractor employees to maintaining the industry's high drug-free 
standard and the need for the higher testing rate to provide continued 
deterrence for contractor employees. One of the three unions 
recommended that long-term contractors should have the same lower 
random testing rate as that of licensee employees because test results 
of long-term contractors and licensee employees have been almost 
identical.
    There were several issues consistently mentioned by those 26 
commenters who opposed maintaining the 100-percent random testing rate 
for contractor and vendor employees. There was a general concern for 
unnecessary inconsistencies in random testing rates between Federal 
agencies. Commenters recommended that the NRC program be kept as 
consistent as possible with programs in other Federally regulated 
safety-related industries. These include the DOT programs that 
currently require contractors and vendors to be randomly tested at a 
50-percent rate.
    Various licensees cited the testing results from 1990 and 1991 
which, in their opinion, create no statistically sound rationale for 
testing contractor and vendor employees at a rate different from that 
of licensee employees. They argued that, while the contractor/vendor 
positive testing rate has been twice that of licensee employees, it is 
still low enough to make unnecessary the expenditure of the resources 
necessary to maintain two separate random testing pools.
    Various commenters noted that contractors and vendors are subject 
to the identical access authorization and other FFD program 
requirements as are licensee employees, including behavioral 
observation. These stringent requirements, in their view, obviate the 
need to keep the contractor/vendor random rate at 100 percent. Some 
also noted that the deterrent value of random testing is in the act of 
testing itself and not in what many consider to be a high rate of 
testing. Some commenters warned that keeping contractors and vendors at 
100 percent could be construed as discriminatory against those 
employees and may be perceived as punitive rather than as a corrective 
measure. Two licensees also cited a study of the detection 
effectiveness of nine random testing rates published in NUREG/CR-5784, 
``Fitness for Duty in the Nuclear Power Industry: A Review of the First 
Year of Program Performance and an Update of the Technical Issues,'' 
which indicates that a 100-percent testing rate is only a little more 
effective than a 50-percent rate for detecting occasional drug users.

NRC Response

    Although there is a difference between the positive results of 
random testing of licensee employees and those of contractor and vendor 
employees, the positive random testing rate of both groups has been 
less in each year since 1990, as stated in the response to Comment 1 
above. While the contractor/vendor random testing positive rates 
continue to be about twice the rate for licensee employees and 
statistical analysis of the data shows that the difference in 
proportion between the contractors' and licensees' employees is not 
explained within statistical fluctuations (therefore, differences in 
the rates are statistically significant), the Commission agrees that 
the absolute numbers of positive test results of all categories of 
nuclear power workers are low. Therefore, the Commission will permit 
its licensees to lower the random testing rate to 50 percent for all 
persons covered by 10 CFR part 26. However, the Commission will 
continue to monitor licensee program performance and effectiveness and 
will make program adjustments as necessary.
    In response to the comments regarding the study of the detection 
effectiveness of nine random testing rates published in NUREG/CR-5784, 
the Commission notes that the study explicitly dealt with only the 
hypothetical detection effectiveness of those alternatives. It did not 
address their relative deterrence effectiveness. While it may be that 
the effectiveness of a 100-percent random testing rate for deterring 
occasional drug users could be slightly higher than that of a 50-
percent rate, the Commission nonetheless believes that a 50-percent 
random testing rate will provide sufficient deterrence to drug and 
alcohol abuse by contractor and vendor employees.
    With respect to commenters' concerns about unnecessary 
inconsistencies in random testing rates between Federal agencies, the 
Commission continues to believe that the random test rate for employees 
in the nuclear power industry need not be similar to the rates applied 
to employees in all, or even most, other Federal agencies or Federally 
mandated programs. Not all Federal agencies have identical safety 
concerns or responsibilities.
    5. Comment. There should be no difference in the random testing 
rate for certain positions critical to the safe operation of a nuclear 
power plant.
    Seventeen commenters responded to the Commission's question as to 
whether certain positions critical to the safe operation of a nuclear 
power plant, such as licensed reactor operators, should be excluded 
from any reduction of the random testing rate. All these commenters 
recommended against such differentiation. Two licensees stated that 
treating people in positions critical to safety differently from other 
employees could have a negative effect on the morale, self-image, and 
motivation of this group of highly trained and dedicated specialists. 
Another stated that all plant employees are critical to safe operation. 
Therefore, a reduction in the random testing rate should apply to all 
employees. The potential for added record-keeping requirements creating 
unnecessary burdens for the industry was another reason for not making 
this distinction. In the opinion of one commenter, the 1990-1992 
industry-wide program performance data do not support testing people in 
positions critical to safety at a different rate than that applied to 
other licensee employees. Finally, one licensee cited potential 
problems getting union agreement to testing this classification of 
employees at a higher rate than other licensee personnel subject to the 
FFD rule.

NRC Response

    The essence and unanimity of these comments--that licensed 
operators and other employees in positions critical to the safe 
operation of a nuclear power plant should not be excluded from a 
reduction of the random testing rate--is not surprising. These 
particular members of the nuclear power industry's workforce have 
collectively demonstrated their dedication to safe and efficient plant 
operations. As at least one commenter noted, the industry's program 
performance data for the first three years of operation do not support 
differentiating between people in safety-critical positions and other 
licensee employees insofar as the random testing rate is concerned. The 
1992 program performance data, for example, show that eighteen of the 
industry's approximately 5,000 licensed operators tested positive for 
drugs or alcohol or otherwise violated the licensee's FFD policy; 
twelve of these were a result of random testing. When comparing these 
results to the 461 positive results out of 156,730 random tests 
administered to the industry workforce, the difference in proportion 
between the licensed operators and the industry workforce is within 
statistical fluctuations and the difference in the positive rates is 
not statistically significant. While the NRC expects licensees to 
continue to take action to drive this number of positives down even 
further, this record does not merit testing people in these positions 
at a rate different from that applied to other licensee employees. The 
Commission, therefore, concurs with the commenters' recommendation that 
certain positions critical to the safe operation of a nuclear power 
plant, such as licensed reactor operators, should not be excluded from 
a reduction of the random testing rate.
    6. Comment. Random testing is expensive and produces false 
positives. Furthermore, chronic users are able to avoid detection.
    Two commenters, a power plant worker and a union, argued against 
the usefulness of continued random testing. One of these commenters 
stated that random testing produces false positives. These cost the 
industry large amounts of money in settlements and damage the public's 
perception of licensees' fairness. As additional support for this 
position, this commenter warned that chronic drug abusers are 
particularly adept at escaping detection from random testing by 
subverting the testing process. The other commenter recommended that 
random testing be eliminated because it is not effective in identifying 
workers who are impaired at the time urine samples are collected. For-
cause testing, in this commenter's opinion, is more effective because 
it more accurately reflects a worker's present ability to perform his/
her job at the time he/she is tested. This commenter also stated that 
random testing appears to be a means of having the NRC enforce the 
Controlled Substances Act which is not the NRC's responsibility.

NRC Response

    The Commission has long been well aware of the types of FFD 
program-related concerns as addressed by these commenters. During the 
promulgation of 10 CFR part 26 in 1989, the Commission fully addressed 
these and many other such concerns. (See NUREG-1354, ``Fitness for Duty 
in the Nuclear Power Industry: Responses to Public Comments.'') At that 
time the NRC concluded, for example, that licensee FFD programs should 
be concerned not only with impairment, but also with worker reliability 
and trustworthiness. The NRC believes that any illegal drug use or 
alcohol abuse by a worker reflects upon his or her trustworthiness and 
reliability. Likewise, random testing is not intended, nor has it ever 
functioned, as a means to enforce the Controlled Substances Act. 
Section 26.29(b) provides that licensees, contractors, and vendors 
shall not disclose test results to law enforcement officials unless 
those officials request such information under court order. It also is 
noted that there is no requirement to routinely provide such officials 
with testing results.
    The Commission is well aware that there is a potential for false 
positive results and, therefore, has required numerous quality control 
measures and safeguards to prevent such occurrences. In Appendix D to 
NUREG/CR-5758, Volume 3, the testing process errors that were reported 
by licensees during the first three years under the FFD rule were 
analyzed. Of over 800,000 specimens tested, there were two false 
positives of personnel specimens reported by the laboratories, both due 
to administrative errors. In both cases, the quality assurance programs 
detected and corrected the problem.
    Because of the NRC's particular concern with the degree to which 
the testing process can be subverted, the Commission staff has 
continued to track the ways in which workers have subverted testing 
processes in industries across the country. These efforts have resulted 
in staff recommendations for amending 10 CFR part 26 to introduce 
various means for combatting subversion. Lastly, the Commission 
believes that the added protection of public health and safety that the 
FFD program provides is well worth the industry's costs of 
administering this program.
    7. Comment. Maintaining two separate populations of workers for 
random testing is an unnecessary and expensive burden.
    Some of the commenters stated that requiring two random testing 
rates would force licensees to develop two separate testing programs. 
The resulting additional administrative and financial burdens would 
cancel out any savings resulting from reducing the licensee employee 
rate to 50 percent. NUMARC stated that the industry would save 
approximately $4.1 million if the number of tests of contractor and 
vendor employees was cut in half.

NRC Response

    Some of the comments noted above asserted that separate random 
testing rates for licensee employees and contractors/vendors would 
create additional administrative and financial burdens for licensees. 
Although this issue is somewhat moot since the Commission will permit 
licensees to reduce the random testing rate to 50 percent per year for 
all persons covered by Part 26, the Commission does not concur that 
conducting random testing using two random rates would have caused 
appreciably higher administrative or operating costs. Presumably, most 
licensees' data bases already distinguish between licensee employees 
and contractor/vendor employees subject to testing. Numerous commenters 
on the initial rule in 1989 indicated that the workforce population 
should be separated so that permanent employees would not be tested at 
a much higher rate to make up for contractors who might not be on site 
when selected for testing (see comment/response 7.4.3 of NUREG-1354). 
The NRC staff understands that several licensees have divided their 
testing population as permitted by the rule. The number and identity of 
licensee employees in the testing pool remains rather constant over 
time. The number and identity of contractor/vendor employees in the 
testing pool, on the other hand, varies quite considerably over time 
depending on outages and other operational considerations. A licensee 
may choose to create more than one test population so that it may test 
portions of its workforce at a greater rate or reduce the burden on its 
employees from being tested at a higher rate to compensate for the 
testing of contractors and vendors not normally on site.
    8. Comment. The Commission should modify certain portions of 10 CFR 
part 26 based on industry experience and lessons learned and 
incorporate numerous program enhancements as discussed at various 
industry forums.
    Eight commenters recommended that the Commission make future 
modifications to certain portions of 10 CFR part 26 based on industry 
experience and lessons learned and incorporate numerous program 
enhancements as discussed at various industry forums.

NRC Response

    The specific recommendations for ways in which part 26 can be 
improved and numerous other program enhancements are currently being 
considered by the NRC in conjunction with a general package of rule 
revisions currently under development.

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)(2). Therefore, the 
NRC has not prepared an environmental impact statement, nor an 
environmental assessment for this final rule.

Paperwork Reduction Act Statement

    This final rule amends information collection requirements that are 
subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) 
These requirements and amendments were approved by the Office of 
Management and Budget, approval number 3150-0146.
    Since the rule will permit licensees to reduce the random testing 
rate for their employees, the resulting reduction in the reporting and 
recordkeeping burden is expected to be an average of 223 hours per 
site, including the time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection of information. Send comments regarding 
this burden estimate or any other aspect of this collection of 
information, including suggestions for reducing this burden, to the 
Information and Records Management Branch (MNBB-7714), U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, and to the Desk 
Officer, Office of Information and Regulatory Affairs, NEOB-3019 (3150-
0146), Office of Management and Budget, Washington, DC 20503.

Regulatory Analysis

    The NRC has prepared a regulatory analysis for this regulation. The 
analysis examines the costs and benefits of the alternatives considered 
by the Commission. The analysis is available for inspection in the NRC 
Public Document Room, 2120 L Street NW (Lower Level), Washington, DC. 
Single copies of the analysis may be obtained from Loren L. Bush, Jr., 
Division of Radiation Safety and Safeguards, Office of Nuclear Reactor 
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
telephone (301) 504-2944.

Regulatory Flexibility Act Certification

    In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 
605(b)), the Commission certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule affects only the licensing and operation of nuclear power 
plants and activities associated with the possession or transportation 
of Category I material. The companies that own these plants do not fall 
within the scope of the definition of ``small entities'' set forth in 
the Regulatory Flexibility Act or the Small Business Size Standards 
issued by the Small Business Administration in 13 CFR part 121.

Backfit Analysis

    The rule represents a relaxation from current part 26 requirements 
for drug testing since the rule permits (but does not require) 
licensees to reduce the random testing rate for all persons covered by 
the rule. Accordingly, the rule does not represent a backfit as defined 
in 10 CFR 50.109(a)(1), and a backfit analysis is not required for this 
rule.

List of Subjects in 10 CFR Part 26

    Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug 
abuse, Drug testing, Employee assistance programs, Fitness for duty, 
Hazardous materials transportation, Management actions, Nuclear 
materials, Nuclear power plants and reactors, Penalties, Protection of 
information, Radiation protection, Reporting and recordkeeping 
requirements, Sanctions, Special nuclear materials.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended, the Energy Reorganization 
Act of 1974, as amended, and 5 U.S.C. 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 as follows:

    Authority: Secs. 53, 81, 103, 104, 107, 161, 68 Stat. 930, 935, 
936, 937, 939, 948, as amended (42 U.S.C. 2073, 2111, 2112, 2133, 
2134, 2137, 2201); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, 
as amended (42 U.S.C. 5841, 5842, 5846).

    2. In Sec. 26.24 paragraph (a)(2) is revised to read as follows:


Sec. 26.24  Chemical and alcohol testing

    (a) * * *
    (2) Unannounced drug and alcohol tests imposed in a statistically 
random and unpredictable manner so that all persons in the population 
subject to testing have an equal probability of being selected and 
tested. The tests must be administered so that a person completing a 
test is immediately eligible for another unannounced test. As a 
minimum, tests must be administered on a nominal weekly frequency and 
at various times during the day. Random testing must be conducted at an 
annual rate equal to at least 50 percent of the workforce.
* * * * *
    Dated at Rockville, Maryland, this 29th day of December, 1993.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-131 Filed 1-4-94; 8:45 am]
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