[Federal Register Volume 59, Number 90 (Wednesday, May 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11294]


[[Page Unknown]]

[Federal Register: May 11, 1994]


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NUCLEAR REGULATORY COMMISSION
10 CFR Part 26

 

Consideration of Changes to Fitness-For-Duty (FFD) Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Request for Information and Comments.

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SUMMARY: In response to a Federal court decision, the Nuclear 
Regulatory Commission (NRC) is evaluating its approaches for 
designation of persons who should be subject to the random drug testing 
at nuclear power plants, in particular whether employees without direct 
safety-related duties (e.g., clerical staff) must be subject to random 
testing. In the evaluation, the NRC staff identified several issues 
that have a significant bearing on whether the current approach should 
be revised. Public comments are requested on these issues to aid the 
NRC staff in completing their evaluation. If any changes are developed 
to current regulations as a consequence of this evaluation, these 
proposed changes will again be published in the Federal Register for 
public comments. If a revised rule is later adopted, these changes 
would apply to all licensees authorized to construct or operate nuclear 
power reactors and to all licensees authorized to possess, use, or 
transport Category I nuclear material.

DATES: The comment period expires August 9, 1994. Comments received 
after this date will be considered if it is practical to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date.

ADDRESSES: Mail written comments to: U.S. Nuclear Regulatory 
Commission, Washington, DC 20555, Attention: Docketing and Services 
Branch.
    Deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
between 7:30 a.m. and 4:15 p.m. on Federal workdays.
    Copies of the NRC staff's report, ``Evaluation of Scope of Persons 
Subject to Random Drug Testing'' (Enclosure 1 to SECY-94-016), and 
comments received may be examined (and/or copied for a fee) at the NRC 
Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC.
    Copies of NUREG/CR-1879, NUREG/CR-5227, and Supplement 1 to NUREG/
CR-5227 may be purchased from the Superintendent of Documents, U.S. 
Government Printing Office, P.O. Box 37082, Washington, DC 20013-7082 
or from the National Technical Information Service, 5282 Port Royal 
Road, Springfield, VA 21161. A copy may be examined (and/or copied for 
a fee) in the NRC Public Document Room, 2120 L Street NW. (Lower 
Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Charles H. Hendren, Safeguards Branch, 
Division of Radiation Safety and Safeguards, Office of Nuclear Reactor 
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC, (301) 
504-3209.

SUPPLEMENTARY INFORMATION:

Background

    In International Brotherhood of Electrical Workers (IBEW) v. NRC, 
966 F.2d 521 (9th Cir. 1992), the United States Court of Appeals for 
the Ninth Circuit upheld the NRC's denial of a request by the IBEW on 
behalf of Diablo Canyon's nuclear workers for an exemption from NRC's 
random drug-testing requirements. The labor union requested the 
exemption for bargaining unit members in clerical, maintenance, and 
warehouse positions. While declining to upset the exemption denial on 
the record before the court, the three-judge panel questioned the NRC's 
justification for imposing random drug tests on workers (particularly 
routine clerical workers) with no direct safety functions and no 
authorized unescorted access to the vital areas of the plant. (The 
Diablo Canyon administrative building is in the protected area, and 
administrative workers are subject to random drug testing because they 
have unescorted access to the protected area. A number of other plants 
also have administrative buildings inside their protected areas.)
    Because the Court of Appeals affirmed the exemption denial, the NRC 
is under no immediate legal obligation to take any action. However, the 
NRC believes that a careful study of the issue raised by the court is 
in order. Therefore, the NRC staff conducted an initial study, 
``Evaluation of Scope of Persons Subject to Random Drug Testing'' 
(Enclosure 1 to SECY-94-016), which is available in the Public Document 
Room as specified in the ADDRESSES portion of this Notice. This study 
evaluated issues relative to random drug-testing of clerks, 
secretaries, or other employees who have unescorted access to a nuclear 
plant's protected area, but whose own jobs are not directly safety-
related and provide no opportunity for precipitating or escalating a 
safety-related incident at a nuclear power plant.
    Before the effective implementation date of the Fitness-For-Duty 
(FFD) Rule (January 3, 1990), licensees had various programs to control 
substance abuse. However, these programs were not uniform in their 
procedures, testing methods, standards, or sanctions for substance 
abuse. Most of the programs did include (1) preemployment drug testing, 
(2) for-cause drug testing, (3) employee assistance programs, (4) 
behavioral observation, and (5) some type of training on the problems 
associated with substance abuse. Not all licensees had random drug 
testing as an element of their program; in some cases, random testing 
was precluded because of union intervention or prohibition by State 
laws.
    In developing the FFD Rule, the scope of random drug testing was 
one issue that received considerable attention. In the Federal Register 
notice for the proposed rule published on September 22, 1988 (53 FR 
36795), the Commission solicited comments on the appropriateness of the 
worker categories identified for testing. At 53 FR 36817, the 
Commission indicated that it was proposing that the rule apply to all 
persons who have been granted unescorted access to protected areas 
because (1) current programs are implemented in accordance with the 
Commission's Policy Statement on Fitness-for-Duty of Nuclear Power 
Plant Personnel published on August 4, 1986 (51 FR 27921), which 
applies to all persons within protected areas at nuclear power plants; 
(2) these persons could introduce and sell/distribute drugs in the 
workplace; and (3) any person under the influence of these substances 
could cause a safety hazard, if not to the general public, to the user 
and to fellow workers.
    Many of the public comments on the proposed rule addressed the 
scope of random testing. Most comments supported random testing for all 
persons granted unescorted access to protected areas. However, a 
considerable number of comments objected to random testing provisions 
of the rule. A number of the comments asserted that random testing was 
unnecessary and that many of the individuals granted unescorted access 
to protected areas have no potential for precipitating or escalating a 
safety-related incident. Some comments recommended that only those 
workers who may potentially affect the health and safety of the public 
be covered. For the final rule, the NRC chose not to reduce the scope 
of persons subject to random testing.
    Currently, the FFD Rule requires licensees authorized to operate or 
construct a nuclear power reactor to implement an FFD program that 
applies to ``all persons granted unescorted access to protected areas, 
and to licensee, vendor, or contractor personnel required to physically 
report to a licensee's Technical Support Center (TSC) or Emergency 
Operations Facility (EOF) in accordance with the licensee's emergency 
plans and procedures.'' Licensees authorized to possess, use, or 
transport formula quantities of nuclear material were recently required 
to initiate FFD programs and are not included in this analysis. Persons 
who come under the FFD program are subject to the drug testing 
provisions, which include random drug tests.

Discussion

    Random drug testing involves two distinct functions: (1) Random 
selection of persons to be tested, and (2) collection and analysis of 
test specimens. The random selection process is used to ensure that all 
persons subject to drug testing will have an equal probability of 
selection for testing at any time. Random drug testing is also a very 
strong deterrent to substance abuse.
    In developing the FFD Rule, the NRC decided to specify random drug 
testing because of a concern about the threat that substance-impaired 
workers posed to the public health and safety. Based upon comments 
received during rulemaking, the Commission concluded that all workers 
with unescorted access to protected areas of operating nuclear power 
plants should be included within the scope of the rule. However, some 
workers have argued that they do not perform safety-related functions 
and have now questioned whether random testing is an undue encroachment 
on individual expectations of privacy. See International Brotherhood of 
Electrical Workers, Local 1245 v. NRC, 966 F. 2d 521 (9th Cir. 1992). 
Other viewpoints contend that expectations of privacy are diminished 
when workers apply for and accept jobs in the nuclear industry because 
job applicants willingly agree to significant privacy encroachments 
including preemployment urinalysis tests, detailed background 
investigations, security and fingerprint checks with the Federal Bureau 
of Investigation, credit checks, and psychological assessments. 
Accordingly, the Commission is now reassessing the scope of random 
urinalysis testing as applied to workers without safety-related duties 
to ensure a proper balance between safeguarding individual rights and 
the Commission's responsibility to protect public health and safety.
    At nuclear power reactors, the safety risks from someone using 
illegal drugs or abusing alcohol arise from the potential for that 
person to inadvertently or deliberately take actions that could affect 
plant safety. The safety risks from inadvertent acts primarily involve 
impairment caused by substance abuse and the effect of that impairment 
on the person's ability to perform safety-related functions. Although 
the Commission has no information that would indicate that a person is 
more susceptible to coercion or blackmail due to drug abuse than from 
any other activity, there is a perception that the safety risks from 
deliberate acts come from the susceptibility of a substance abuser to 
be coerced or influenced into deliberately damaging a nuclear power 
plant, whether or not that person has safety-related duties. For 
example, the person could lose their inhibitions while under the 
influence or could be blackmailed into some act against the plant by 
someone aware of that person's substance abuse.
    Objective data establishes a relationship between substance abuse, 
impairment, and inadvertent acts [NUREG/CR-5227, ``Fitness for Duty in 
the Nuclear Power Industry: A Review of Technical Issues''], but the 
staff's review of the relevant literature suggests that insufficient 
scientific data exist to directly link substance abuse to the 
performance of deliberate (or malicious) acts. However, it has been 
clearly shown that, as human error rates increase, the risks to plant 
safety will increase significantly. [See NUREG/CR-1879, ``Sensitivity 
of Risk Parameters to Human Errors in Reactor Safety Studies for a 
PWR.''] It has also been shown that substance abuse can sufficiently 
impair a worker's motor skills and judgment that accidents attributable 
to neglect and human error become significantly more probable. [See 
NUREG/CR-5227 and Supplement 1 to NUREG/CR-5227.]
    Information reported to the Commission indicates that arrests for 
sale and distribution of illegal substances inside nuclear power plant 
protected areas have decreased markedly since January 1990 when the FFD 
Rule was implemented. Prior to the FFD Rule, a number of cases 
involving the sale and distribution of illegal substances at nuclear 
power plants were reported, as described in the staff's report cited 
previously. The persons arrested for on-site sale and distribution of 
drugs included both safety-related and non-safety-related workers. The 
job categories included clerks, custodial workers, craftpersons, and 
engineers. Since implementation of the FFD Rule, however, only one case 
of this type has been reported to the Commission by a nuclear power 
plant licensee. Two of the more significant deterrents added by the FFD 
Rule were: (1) The requirement for random drug testing, and (2) the 
five-year minimum revocation of unescorted access for persons 
determined to have been involved in the sale, use, or possession of 
illegal drugs within a protected area.
    The threat of someone either inadvertently or deliberately damaging 
or manipulating equipment that affects plant operations or could result 
in radiological consequences arises from that person having access to 
the equipment. Persons whose tasks involve design, operation, or 
maintenance of that equipment represent a greater potential threat 
because of their familiarity and more direct access to that equipment. 
Safeguard measures that protect against someone from inside the 
organization are intended to counter this threat by ensuring that 
persons who have an opportunity to operate or manipulate any equipment 
affecting plant functions are not impaired and are trustworthy and 
reliable. To achieve these goals, the Commission believes that although 
there are substantial unknowns currently associated with the true 
detection and deterrence effectiveness of random testing, the use of 
random drug testing provides an effective means for both detecting and 
deterring the use of illegal drugs or abuse of alcohol.
    The fundamental approaches for selecting those to be included in a 
random testing program are to either test everyone (the ``universal'' 
approach) or to test only those in ``safety-sensitive'' positions. 
Proponents of the universal approach contend that the safety-sensitive 
approach tends to be discriminatory in that blue-collar workers are 
tested but management is not. Proponents of the safety-sensitive 
approach contend that random testing should be limited to only workers 
in positions where a direct link to safety exists. The NRC's current 
approach is a combination of these two fundamental approaches. The 
NRC's approach tests everyone who has unescorted access to a protected 
area and, therefore, tests everyone who has an opportunity to operate 
or manipulate important systems and equipment that could challenge the 
safe operation or emergency shutdown capability of a nuclear power 
plant.
    To satisfy the intended objective of random drug testing, one 
approach would be to base the decision on who should be randomly tested 
on a person's access to equipment that could, if manipulated, cause a 
safety problem. This is a conservative approach and does not take into 
account the abilities and skills of persons who may have access. For 
someone who has access and whose tasks do not include safety-related 
activities, the approach assumes they present some risk of either 
inadvertently or deliberately causing safety problems.
    Nuclear power plant security requirements provide distinct security 
boundaries where personnel access is controlled. The nuclear power 
plant protected area is one of these boundaries and is defined as an 
area encompassed by physical barriers to which access is controlled (10 
CFR 73.2). Protected areas contain components and systems that are 
important to plant operations and whose failure could result in 
challenges to more critical plant systems and components. The NRC 
staff's evaluation study cites numerous cases where reactors have been 
tripped and safety systems challenged as a result of accidents that 
occurred in protected areas. Since 1987, there have been over two 
thousand ``events'' that caused reactors to be scrammed.
    Within protected areas are vital areas. Vital areas contain 
equipment, systems, devices, or material, the failure, destruction, or 
release of which could directly or indirectly endanger the public 
health and safety by exposure to radiation. Unescorted access from 
protected areas into vital areas is controlled and limited to persons 
who require access to perform their duties.
    An approach based on unescorted access to protected areas results 
in a large variation among sites in the number of people subject to 
random testing. Many power reactor sites have few administrative or 
technical work stations inside their protected areas. At these sites, 
most workers who have unescorted access also have job functions 
directly related to plant operations and require access to one or more 
vital areas. However, a number of power reactor sites have 
administrative and technical support buildings located inside protected 
areas. At these sites, many workers who have unescorted access only to 
protected areas (and not to vital areas) do not have tasks directly 
related to plant operations or maintenance.
    Another approach to designating who would be subject to random 
testing would be to base the decision on tasks the person performs. 
This approach recognizes that people whose tasks directly involve plant 
safety have the access, the opportunity, and the knowledge to cause a 
safety problem. This approach addresses more directly the safety 
problems that might be caused by a person who is impaired due to 
substance abuse. Many positions and tasks are fairly well defined at 
nuclear facilities. A core of individuals such as plant operators, 
maintenance personnel, and quality control inspectors have tasks that 
are clearly subject to NRC regulations and directly involve safety-
related activities. However, the relationship of some positions to 
plant safety is more difficult to establish.
    One ongoing NRC activity that could affect considerations for 
changes in regulatory requirements for persons subject to random 
testing is a study of security requirements associated with the insider 
threat. There have been some indications that access control safeguards 
could, in some circumstances, make it much harder for reactor operators 
to maintain control of a plant. The NRC staff is considering whether 
reductions are possible in the safeguards that control access into 
vital areas from protected areas. Substantial reductions in the access 
control safeguards for vital areas could alter the safety impact 
assessments for optional approaches to random drug testing. These 
safety assessments are based to some degree on the use of access 
controls to segregate persons having access to vital areas from persons 
whose access is limited to protected areas (i.e., persons who do not 
have access to vital areas). Depending on how much importance is given 
to concerns about deliberate acts based on influence from illegal drug 
or alcohol abuse, future relaxation of the safeguards to control access 
into vital areas from protected areas could significantly affect any 
considerations for narrowing the scope of persons subject to random 
testing.
    To assist in the ongoing evaluation of the scope of random testing, 
the Commission seeks comments on the proposed alternative approaches to 
the scope of random testing and other related issues. Further 
information on these alternative approaches is contained in the NRC 
staff's report cited previously. This study addressed five options for 
the scope of random testing. The first option is maintaining the 
existing random drug testing scope, which is based on personnel access 
to a particular location. Option 2, which would exclude certain groups 
of workers from the random testing pool, and Option 3, which would 
apply random testing to persons who have access only to vital areas, 
represent relatively simple variations of the current program. Options 
2 and 3 would narrow the pool of individuals subject to random testing. 
Option 4 would base the scope of random testing on the tasks the person 
performs. Option 5 would allow alternative testing (in lieu of 
urinalysis) for workers in certain defined positions. For all five 
options, it is assumed that the other elements of the FFD program (such 
as suitable inquiries, preaccess testing, and for-cause testing) will 
remain applicable to all workers who are given unescorted access to 
protected areas. Specifically, comments are requested on the following:

    1. Should the Commission retain the current scope of the random 
drug testing requirements in 10 CFR part 26, which requires that all 
persons granted unescorted access to protected areas at nuclear 
power plants be subject to random drug testing? (Option 1)
    2. Should the Commission revise the scope of the 10 CFR part 26 
random drug testing requirements to adopt one or more of the 
following approaches?
    a. Exclude from random drug testing certain groups of workers 
(e.g., clerical, administrative) who have unescorted access to 
protected areas but not to vital areas. (Option 2)
    b. Limit random drug testing to only those workers who have 
unescorted access to vital areas of nuclear power plants. (Option 3)
    c. Limit random drug testing to workers whose jobs involve 
safety- or security-related functions regardless of whether these 
workers have unescorted access to protected areas. (Option 4)
    d. Allow use of alternative testing methods in lieu of 
urinalysis for certain groups of workers who have unescorted access 
to protected areas (but not to vital areas) only because their 
normal workstations are within a protected area of the nuclear power 
plant. These methods could include performance-based testing, even 
though there are current technical limitations, primarily varying 
degrees of detectability, reliability, sensitivity, and accuracy. 
(See also question 7, below.) (Option 5)
    3. For each of the four approaches above (2.a-2.d), what are the 
potential effects on risk to public health and safety or on 
vulnerability of nuclear power plants resulting from accidental acts 
and deliberate acts such as sabotage or vandalism? Will 
vulnerability or risk increase or decrease to any significant 
degree, or will they remain unchanged?
    4. What would be the expected effect on the need for random drug 
testing under each of the four approaches above (2.a-2.d) if vital 
area access controls are reduced ( e.g., allowing certain vital area 
doors to normally be unlocked, but be capable of (i) being remotely 
locked on demand in the event of a security contingency, and (ii) 
generating an alarm if a vital area door is opened without an 
authorized keycard )?
    5. Does substance abuse increase the probability of a person 
committing a deliberate act such as sabotage or vandalism? These 
acts might be caused by indirect influences of drugs on a person's 
attitude or susceptibility to being influenced by others. What data 
exist to show a relationship between substance abuse and deliberate 
acts? Is random drug testing an appropriate means to control the 
risk of deliberate acts associated with substance abuse and, at the 
same time, not encroach unreasonably into individual privacy 
expectations?
    6. Does the Commission's policy in 10 CFR part 26 deter the 
introduction of illegal substances into protected areas of nuclear 
power plants? If so, what aspect(s) of the FFD program creates this 
deterrent effect? If not, should the Commission require licensees to 
implement measures to cause this deterrent effect, and what type of 
measures should be required? (Information describing the measures 
and their effectiveness in sufficient detail to show the cause and 
effect relationship between the deterrent measure and the resulting 
reduction/elimination of illegal substances being brought into the 
workplace would be useful.)
    7. Should the Commission continue to investigate new testing 
methods that could be used for all workers who have unescorted 
access to protected areas? What are some methods that might be 
acceptable and effective alternatives to the existing approach? For 
proposed methods, please provide data that establishes accuracy 
(i.e., test's error rate), specificity (i.e., degree to which the 
test can measure what it's supposed to measure), reliability (i.e., 
the precision with which the test can be repeated and the 
consistency of test results), and similar supporting parameters. The 
Commission is specifically interested in data on the validity of 
performance testing measures.

    Dated at Rockville, Maryland, this 4th day of May 1994.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Assistant Secretary of the Commission.
[FR Doc. 94-11294 Filed 5-10-94; 8:45 am]
BILLING CODE 7590-01-P